State v. Campbell

• Decision Date: 28 July 2020
• Docket Number: No. W2019-00626-CCA-R3-CD,W2019-00626-CCA-R3-CD
• Parties: STATE OF TENNESSEE v. GARY CAMPBELL
• Court: Tennessee Court of Criminal Appeals

STATE OF TENNESSEE v. GARY CAMPBELL

No. W2019-00626-CCA-R3-CD

COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

Assigned on Briefs April 7, 2020

July 28, 2020

Appeal from the Criminal Court for Shelby County

No. 17-03945

Jennifer Johnson Mitchell, Judge

The State appeals as of right from the trial court's order dismissing the indictment against the Defendant, Gary Campbell. See Tenn. R. App. P. 3(c)(1); State v. Meeks, 262 S.W.3d 710, 721 (Tenn. 2008). Campbell was indicted by the Shelby County Grand Jury for one count of sexual exploitation of a minor. See Tenn. Code Ann. § 39-17-1003. Campbell filed a motion to suppress, claiming that the search warrant affidavit failed to establish probable cause for the search of his residence. Following an evidentiary hearing, the trial court granted the motion to suppress and dismissed Campbell's indictment. On appeal, the State argues that the trial court erred in granting the suppression motion and in dismissing the indictment because (1) the affidavit in support of the search warrant for Campbell's property was sufficient to establish probable cause and (2) exigent circumstances supported the search. After carefully reviewing the record and the applicable law, we reverse the order of the trial court granting the motion to suppress, vacate the order dismissing the indictment, and remand for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L. HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior Assistant Attorney General; Amy P. Weirich, District Attorney General; and Devon D. Lepeard and Sara Poe, Assistant District Attorneys General, for the Appellant, State of Tennessee.

Phyllis Aluko, District Public Defender; Harry E. Sayle III (on appeal) and Michael Johnson (at hearing), Assistant District Public Defenders, Memphis, Tennessee, for the Appellee, Gary Campbell.

OPINION

On November 1, 2018, Campbell filed a motion to suppress the evidence obtained from a search of his residence pursuant to a search warrant. As grounds for this motion, Campbell argued the only basis for the search warrant was a statement from a criminal informant, Andrew Galbreath; that Galbreath had no prior contact with police, which prevented the police from assessing his credibility or the reliability of his information; that the police failed to corroborate Galbreath's statement; that no information concerning Campbell was in the Google report to the National Center for Missing and Exploited Children (NCMEC) regarding a single pornographic image uploaded to Galbreath's email address; and that although Galbreath had told the police that he had received pornographic images from Campbell and that he had sent Campbell pornographic images, there was no information in the search warrant affidavit for Campbell's home about when receipt or delivery of the pornographic material occurred and no information concerning the email address Campbell used to deliver or receive the pornographic material.

On November 26, 2018, the State filed its response to the motion to suppress, contending that Galbreath was not a criminal informant but a defendant in a linked investigation, a classification which did not require the same inquiry into reliability and did not require corroboration. Because Galbreath "gave a statement against his own interest" incriminating himself in a crime and implicating Campbell in a similar crime, the State argued Galbreath's statement was inherently reliable. See United States v. Harris, 403 U.S. 573, 584 (1971) ("Concededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. But here the informant's admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search."); United States v. Riddick, 134 Fed. Appx. 813, 822 (6th Cir. 2005) (concluding that an identified confidential informant's statements against penal interest did not require corroboration to justify the issuance of the search warrant because the informant's statements, when coupled with the detail of the informant's statements and his basis of knowledge, as well as the other alleged instances of bank fraud, were sufficient to support a finding of probable cause for the search warrant affidavit). Nevertheless, the State acknowledged the holding in State v. Bishop, 431 S.W.3d 22, 39-40 (Tenn. 2014), wherein the Tennessee Supreme Court rejected the federal courts' view that an accomplice's confession that implicates another is sufficient for a finding of probable cause and reaffirmed that the Aguilar/Spinelli test¹ should be used when determining whether asuspect's self-inculpatory statement gives the police probable cause to arrest a person identified by the suspect. In light of the Tennessee Supreme Court's adoption of the Gates² totality-of-the-circumstances analysis in State v. Tuttle, 515 S.W.3d 282 (Tenn. 2017), the State urged adoption of the federal view that an accomplice's confession implicating another is sufficient for a finding of probable cause, which would make the search warrant in Campbell's case valid based on Galbreath's statement. Alternatively, the State argued that even if the trial court refused to adopt the federal view for Galbreath's statement, the search warrant in Campbell's case was valid under the totality-of-the-circumstances test, explaining:

Here, the Memphis Police Department was investigating a cybertip which indicated that Andrew Galbreath was in the possession of, and indeed, uploading child pornography. They obtained a search warrant and did in fact find child pornography in his residence. Andrew Galbreath confessed to possessing the child pornography, and to the additional crime of exchanging it with [Gary Campbell,] the Defendant in this case. Galbreath gave the police detailed information about [Campbell], including his description, age and where he lived. The details given by Andrew Galbreath in and of themselves suggest reliability. Moreover, the Memphis Police Department corroborated [Galbreath]'s information by locating [Gary Campbell], of the same description, living in the same place that Andrew Galbreath asserted he lived. They corroborated that by the Lexis Nexis search and by having [Galbreath] look at a [G]oogle map and point out the apartments where he lived. It has been clearly stated by the Tennessee Supreme Court that the information [provided by an informant] may be buttressed by independent corroboration of details. Noted in Bishop, "it is not necessary to corroborate every detail of the informant's information . . . or to 'directly link the suspect to the commission of the crime.' Corroboration of 'only innocent aspects of the story['] may suffice.["] Id. at 29.

Search Warrant Affidavit. At the November 26, 2018 suppression hearing, the State introduced into evidence the search warrant affidavit and search warrant for Campbell's residence. The affiant, Sergeant Christopher Vaden, detailed his lengthy employment history with the Memphis Police Department and the Drug Enforcement Administration as well as his extensive qualifications, training, and certifications in digital technology and computer-related crime. Sergeant Vaden asserted that the affidavit was submitted in support of an application for a search warrant of Campbell's residence, which was located at 5[***] Meadow Lake Drive South Apartment 3A, Memphis, Shelby County,Tennessee 38115, and that there was probable cause to believe that Campbell had in his possession or control certain types of equipment, devices, computers, cellular telephones, records, files, and documents that could contain material depicting the sexual exploitation of a minor.

Sergeant Vaden also described the characteristics common to individuals involved in the receipt and collection of child pornography in the affidavit, including that "individuals who wish to obtain child pornography do so by ordering it from abroad or by discreet contact with other individuals who have it available," that "the use of computers and/or cellular telephones to traffic in, trade, collect child pornography and obscenity has become one of the preferred methods of obtaining obscene and child pornographic materials," that images of child pornography are "intrinsically valuable as trading/selling material and therefore are rarely destroyed or deleted by the individual collector," that collectors of child pornography may use sexually explicit or suggestive materials "to lower the inhibitions of children they are attempting to seduce, to arouse the selected child partner, or to demonstrate the desired sexual acts," that "[c]hild pornography collectors . . . may correspond with and/or meet others to share information and materials" and "often maintain lists of names, addresses, and telephone numbers of individuals with whom they have been in contact and who share the same interests in child pornography." Sergeant Vaden noted that searching and seizing information from computers and cellular telephones requires officers to seize most or all electronic storage devices so that these devices can be searched later by a qualified computer expert in a laboratory or other controlled environment, a process that can take "weeks or months, depending on the volume of data stored."

Sergeant Vaden next described in the affidavit the evidence obtained over the course of his investigation, including the July 12, 2016 tip from NCMEC regarding a complaint from Google, Inc. involving an image of a "child approximately three years old performing oral sex on an adult male" that was uploaded to Andrew Galbreath's email address MorbidStillWorks@gmail.com; the September 8,...