State v. Henning

• Decision Date: 22 June 1998
• Citation: 975 S.W.2d 290
• Parties: STATE of Tennessee, Appellee, v. Johnny M. HENNING, Appellant.
• Court: Tennessee Supreme Court

Page 290

975 S.W.2d 290

STATE of Tennessee, Appellee, v. Johnny M. HENNING, Appellant.

Supreme Court of Tennessee at Jackson.

June 22, 1998.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Kenneth W. Rucker, Assistant Attorney General, Nashville, James G. Woodall, District Attorney General, Shaun A. Brown, Assistant District Attorney General, Jackson, for State-Appellee.

Hughie Ragan, Jackson, for Defendant-Appellant.

OPINION

DROWOTA, Justice.

We granted this appeal primarily to consider two issues: 1) whether the search warrant in this case is supported by probable cause and is otherwise valid; and 2) whether an appellate court reviewing a pretrial ruling that a search warrant was validly executed may consider the entire record, including evidence submitted at trial, in addition to evidence submitted at the pretrial suppression hearing. We have determined that the search warrant issued in this case is supported by probable cause and free from other defects. As to the second issue, which is a question of first impression in Tennessee, we have determined that an appellate court may consider the entire record, including the evidence submitted at trial, in evaluating the correctness of a pretrial ruling that a search warrant was validly executed. Accordingly, for the reasons that follow, the judgment of the Court of Criminal Appeals upholding the trial court's denial of the defendant's motion to suppress is affirmed.

FACTUAL BACKGROUND

On October 21, 1993, Johnny Henning was arrested at his home and police seized .9 grams of cocaine, an unknown quantity of Mannitol, a substance commonly mixed with cocaine, and a set of scales. The arrest, search, and seizure was the culmination of several hours of surveillance of Henning's home by Officer Mark Caldwell of the Madison County Sheriff's Department and a member of the Drug Task Force of the 26th Judicial District.

After receiving information from a confidential informant that Henning was selling crack cocaine, Officer Caldwell positioned himself in a field across the road from Henning's residence at approximately 3:00 p.m. Between 3:00 p.m. and 4:20 p.m. that day, Caldwell observed three cars arrive separately at Henning's house. Each time, Caldwell observed Henning approach the car, talk to the occupants for a short time, walk to the side of his house, return about four seconds later, again approach the car, and then exchange something with the occupants. Following the last exchange at approximately 4:30 p.m., Henning left his home on foot.

During his absence, Officer Caldwell telephoned Captain Thomas A. Coleman, described the transactions he had observed, and directed Capt. Coleman to obtain a search warrant for Henning's residence. Capt. Coleman prepared an affidavit, obtained the warrant, returned to a location near Henning's residence with several other officers, and waited for Caldwell to call for execution of the warrant.

Henning returned at 5:00 p.m, and thereafter, Caldwell observed two more exchanges before Henning again departed his residence in a vehicle at approximately 6:30 p.m. Caldwell maintained his position in the field across from Henning's home for about twenty minutes after Henning departed, but eventually crossed the road and positioned himself so that he could observe the west side of the house to which Henning had walked before each prior exchange had occurred.

From that vantage point, Caldwell had observed three different vehicles arrive at Henning's residence. Each time the occupants remained inside their cars for a short time before approaching Henning's house and knocking on the door. Each time the visitors left as soon as Henning's wife came to the door and told them, "Johnny's not here."

Henning returned home at approximately 8:30 p.m., and shortly thereafter, another car arrived at his residence. Henning came outside and spoke to the driver and passenger of the vehicle. Caldwell observed Henning go to a concrete block at the side of the house. During this activity, Caldwell crawled into Henning's yard, and was lying on the ground beside an abandoned car on the west side of the house. Caldwell said he had been "very, very close" to Henning and the occupants of the car. At that point, Caldwell called for backup assistance from Capt. Coleman and the other officers located a short distance from Henning's residence. After making the call, Officer Caldwell stood and approached the defendant who was engaged in conversation with one of the occupants of the car. Henning began to flee toward his residence, and Caldwell pursued him, stating that he knew it would be difficult to "keep up with where the drugs were going to be ... if they got in the house...." Caldwell seized Henning as he was entering his residence, and they fell into the doorway of Henning's residence. ¹

Once he had apprehended Henning, Caldwell announced he was a police officer and told the defendant he had a search warrant. Caldwell ordered Henning and the other occupants of the house to sit down. Henning sat on the sofa, and Caldwell observed him throw something on the carpet and try to kick it under the couch. Caldwell recovered the object, and a subsequent laboratory analysis revealed the substance to be .9 grams of cocaine. Other officers assisting in the execution of the search warrant found Mannitol a substance often combined with cocaine, and a set of scales, inside a drainage pipe on the west side of the house to which the defendant had walked before each transaction occurred.

The defendant moved pretrial to suppress the evidence seized as a result of the search. The motion was denied, and the case proceeded to trial. The jury found the defendant guilty of possession of cocaine with intent to sell, possession of cocaine with intent to deliver, and possession of drug paraphernalia. The trial court merged the two cocaine possession verdicts into a single conviction. The defendant was sentenced to twelve years for the felony possession conviction and eleven months, and twenty-nine days for the misdemeanor drug paraphernalia conviction. The sentences were ordered to be served concurrently. The defendant appealed, raising numerous issues. The intermediate court affirmed the convictions, but remanded for resentencing because of a conflict between the bench ruling and the judgment as to the applicable sentencing range. Thereafter, we granted permission to appeal and now affirm the judgment of the Court of Criminal Appeals.

I. CONSTITUTIONAL VALIDITY OF THE SEARCH WARRANT

A. Probable Cause

Initially, the defendant contends that the affidavit, upon which the search warrant was issued, did not establish probable cause because the affidavit failed to allege facts from which the credibility of the informant and the reliability of the information could be determined as is constitutionally required in Tennessee by this Court's decision in State v. Jacumin, 778 S.W.2d 430 (Tenn.1989). The State first responds that the affidavit contained facts from which the magistrate could determine the credibility of the informant and the reliability of the information, and alternatively argues that any deficiencies in the affidavit were remedied by the independent police corroboration outlined in the affidavit in this case. We agree.

The Fourth Amendment ² to the United States Constitution requires that search warrants issue only "upon probable cause, supported by Oath or affirmation." Article I, Section 7 of the Tennessee Constitution precludes the issuance of warrants except upon "evidence of the fact committed." Therefore, under both the federal and state constitutions, no warrant is to be issued except upon probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); State v. Jacumin, supra; Tenn.Code Ann. § 40-6-103 (1997 Repl.). Probable cause has been defined as a reasonable ground for suspicion, supported by circumstances indicative of an illegal act. Lea v. State, 181 Tenn. 378, 181 S.W.2d 351, 352 (1944).

In Tennessee, a finding of probable cause supporting issuance of a search warrant must be based upon evidence included in a written and sworn affidavit. Tenn.Code Ann. 40-6-104 (1997 Repl.); Tenn. R.Crim. P. 41(c); Jacumin, 778 S.W.2d at 432. Indeed, an affidavit containing allegations from which the magistrate can determine whether probable cause exists is an indispensable prerequisite to the issuance of a search warrant in this State. Id.; see also State ex rel. Blackburn v. Fox, 200 Tenn. 227, 230, 292 S.W.2d 21, 23 (1956). The affidavit must set forth facts upon which a neutral and detached magistrate, reading the affidavit in a common sense and practical manner, can find probable cause for the issuance of a search warrant. State v. Bryan, 769 S.W.2d 208, 210 (Tenn.1989). To ensure that the magistrate exercises independent judgment, the affidavit must contain more than mere conclusory allegations by the affiant. Jacumin, 778 S.W.2d at 432; State v. Moon, 841 S.W.2d 336, 337 (Tenn.Crim.App.1992). An affidavit may contain hearsay information and need not reflect the direct personal observations of the affiant. Jacumin, 778 S.W.2d at 432; State v. Melson, 638 S.W.2d 342, 354 (Tenn.1982). However, under the Tennessee Constitution, an affidavit containing hearsay information supplied by a confidential informant can not support a finding of probable cause unless it also contains factual information concerning the informant's basis of knowledge and credibility. Jacumin, 778 S.W.2d at 432, 436. While independent police corroboration can make up deficiencies in either prong, we have recognized that "each prong represents an independently important consideration that must be separately considered and satisfied in some way." Id. Appellate courts reviewing the existence of probable cause to support issuance of a warrant may consider only the affidavit and may not consider other evidence provided to or...