State v. Jacumin

Decision Date09 October 1989
Citation778 S.W.2d 430,58 U.S.L.W. 2315
PartiesSTATE of Tennessee, Appellee, v. Richard T. JACUMIN, Appellant. 778 S.W.2d 430, 58 U.S.L.W. 2315
CourtTennessee Supreme Court

N. Reese Bagwell, Bagwell, Bagwell, Parker, Riggins and Kennedy, Clarksville, for appellant.

Tenn. Ass'n of Crim. Defense Lawyers, Amicus Committee, Paul J. Morrow, Jr., and Kenneth J. Ries Co-Chairpersons, Nashville, amicus curiae.

W.J. Michael Cody, Atty. Gen. & Reporter, Charles E. Bush, Asst. Atty. Gen., Nashville, for appellee.


COOPER, Justice.

The application for permission to appeal was granted to review the finding of the Court of Criminal Appeals that the affidavit, on which a search warrant was issued, "falls short of the constitutional requirement of probable cause to issue the warrant," even under the totality-of-the-circumstances rule of Gates, 1 and the Court's action in dismissing all charges against Richard T. Jacumin.

The record shows that a search warrant was issued at 11:35 p.m. on July 14, 1985, authorizing officers of the Metropolitan Police Department to search the dwelling at 3410 Tisdale Avenue, the brown mailbox in front of the residence, and a 1984 red Nissan automobile bearing Tennessee license number 14-15U1. The inventory of property seized in the search is dated July 15, 1985, with a time of 7:00 p.m. and shows the seizure of marijuana, white powder (which tested positively for cocaine), various items of drug paraphernalia and a Smith & Wesson, .38, with six bullets. The officers' return was signed July 15, 1985.

The defendant was indicted for possession of marijuana and cocaine with intent to manufacture, deliver or sell the drugs. He moved to suppress evidence seized by the officers. When the trial court denied the motion to suppress, the defendant entered guilty pleas, receiving a sentence of one year on the marijuana charge and seven years on the cocaine charge, with the sentences to be served consecutively. In entering the guilty pleas, the defendant, with the consent of the State and the trial court, reserved the right to appeal the following certified question of law dispositive of the case. See Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure.

Whether or not the search warrant and subsequent search conducted pursuant thereto violated the Defendant's constitutional rights under the Fourth Amendment to the Constitution of the United States and the Constitution of the State of Tennessee and its provisions relating to search and seizure.

As heretofore noted, the Court of Criminal Appeals concluded that the affidavit on which the search warrant was based was insufficient.

The primary issue in this appeal is whether the affidavit, on which the search warrant was issued, established probable cause that contraband was present on the premises of the defendant, or in his automobile or mailbox. The secondary issue is whether this Court, in determining probable cause, should adopt the totality of circumstances approach voiced by the Supreme Court of the United States in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), or whether we should retain in some form the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the test that Gates abandoned.

While Gates expressly abandons the Aguilar-Spinelli tests to be discussed below, much of the relevant law remains unchanged. The Fourth Amendment warrant requirement mandates a probable cause determination made by a neutral and detached magistrate. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 396, 92 L.Ed. 436 (1948). Where the determination is made by such a magistrate, it is entitled to "great deference" by a reviewing court. The reviewing court's standard is whether the magistrate had a substantial basis for concluding that a search warrant would uncover evidence of wrongdoing. Illinois v. Gates, supra, 103 S.Ct. at 2331; Spinelli v. United States, supra, 89 S.Ct. at 591.

"[I]n passing on the validity of a warrant, the reviewing court may consider only the information brought to the magistrate's attention." Aguilar, supra, 84 S.Ct. at 1511, n. 1. In Tennessee, Rule 41(c), Tennessee Rules of Criminal Procedure, requires the information to be submitted by affidavit, though this is not required by federal constitutional law.

The affidavit showing probable cause may also be based on hearsay information and need not reflect the direct personal observations of the affiant. Aguilar, supra, 84 S.Ct. at 1514. In Aguilar, however, the Court stated that if the affiant relies on hearsay information from a confidential informant

the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed ... was "credible" or his information "reliable."

Id. [emphasis supplied] Aguilar thus has a "basis of knowledge" prong and a "veracity" prong. Gates, supra, 103 S.Ct. at 2347 (White, J., concurring).

In Aguilar, the supporting affidavit merely stated that the affiant had received information from a credible and reliable informant that contraband was on the premises to be searched. The Court pointed out that nothing in the affidavit showed the basis of the information, e.g., whether the informant had personal knowledge, or whether he merely suspected or believed that contraband was present 84 S.Ct. at 1513-14. And as the Court observed in Spinelli, the affiant did not attempt to support the claim that the informant was reliable or credible. Id. 89 S.Ct. at 587.

This two-pronged test was affirmed in Spinelli. There the Court appeared to recognize that the "basis of knowledge" prong could be satisfied absent an express statement if "the tip describes the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation." Spinelli, supra, 89 S.Ct. at 589. Neither the detail nor the independent police corroboration of the tip were sufficient in that case.

In Gates, the Court abandoned the two-pronged test of Aguilar-Spinelli in favor of a totality of circumstances approach. Gates, supra, 103 S.Ct. at 2328. The Court set forth several justifications for its action.


This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific "tests" be satisfied by every informant's tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a "practical, nontechnical conception." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). "In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., at 175, 69 S.Ct., at 1310. Our observation in United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding "particularized suspicion," is also applicable to the probable cause standard:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id., at 2328.

Second, the Court regarded the approach as more in keeping with the deference given to the probable cause determinations of magistrates and the purpose of encouraging resort to the warrant procedure. Id. at 2331.

Third, the Court expressed the opinion that

"the two-pronged test" has encouraged an excessively technical dissection of informants' tips, with undue attention being focused on isolated issues that cannot be sensibly divorced from the other facts presented to the magistrate.

Id. at 2330. The Court went on to note that the language and the approach of Aguilar and Spinelli suggested that the two prongs were intended as guides and not as "inflexible, independent requirements in every case." 103 S.Ct. at 2328, n. 6. Yet a number of courts had struck down warrants supported by probable cause, based upon a rigid application of the Aguilar-Spinelli rules. Id. at 2330, n. 9, citing cases.

In Gates, the police received an anonymous letter stating that Lance and Sue Gates, a married couple living in the Chicago suburb of Bloomingdale, were engaged in drug dealing. The letter detailed their standard operating procedure. The buys took place in Florida. The wife would drive to Florida, leave the car to be loaded with drugs, then fly back. The husband would fly to Florida a few days later, and drive the car back. The letter received on May 3, 1978, stated that on May 3, the wife would be driving to Florida and that in a few days the husband would fly down to drive the car back with over $100,000 in drugs. The letter also said that the Gates presently had $100,000 in their basement, that big drug dealers visited them often and that they had bragged that they make their entire living on pushers. Id. at 2325.

The Court noted that standing alone, the letter did not establish probable cause. There was nothing from which a magistrate could conclude that the author was honest or the information reliable; there was nothing to indicate the basis for the writer's predictions as to future...

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