State v. Keith

• Decision Date: 28 September 1998
• Citation: 978 S.W.2d 861
• Parties: STATE of Tennessee, Appellee, v. Dennis KEITH and, Timothy Collins, Appellants.
• Court: Tennessee Supreme Court

Page 861

978 S.W.2d 861

STATE of Tennessee, Appellee, v. Dennis KEITH and, Timothy Collins, Appellants.

Supreme Court of Tennessee at Jackson.

Sept. 28, 1998.

Rehearing Denied Nov. 23, 1998.

John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General Elizabeth T. Ryan, Assistant Attorney General, Nashville, James G. Woodall, District Attorney General, Twenty-Sixth Judicial District, Jackson, Nick Nicola, Assistant District Attorney General, Jackson, for State-Appellee.

Joe H. Byrd, Jr., Jackson, for Defendants-Appellants.

OPINION

DROWOTA, Justice.

We granted this appeal to consider two issues: 1) whether the investigative automobile stop in this case was based upon reasonable suspicion, supported by specific and articulable facts, that a crime was being committed; and 2) whether the search warrant in this case is invalid because the issuing judge failed to complete the jurat attesting that the affidavit in support of issuance of the warrant was executed under oath by the affiant.

Upon careful consideration, we agree with the Court of Criminal Appeals that the investigative automobile stop was based upon reasonable suspicion and therefore constitutionally permissible. We have also determined that although it is preferable that every affidavit contain a completed jurat, the omission of, or defect in, the jurat does not affect the validity of a warrant issued upon probable cause when it is proven by extrinsic evidence that the supporting affidavit was properly sworn by the affiant. Accordingly, we affirm the judgment of the Court of Criminal Appeals which reversed the trial court's grant of the defendant's motion to suppress. The cause is remanded to the trial court for further necessary proceedings.

FACTUAL BACKGROUND

On September 9, 1993, Investigator Danny Mullikin of the Drug Task Force of the 26th Judicial District, received information from a confidential informant that the defendants, Dennis Keith and Timothy Collins were storing illegal drugs in their home located at 225 Hollywood in the City of Jackson. The informant also provided a physical description of the defendants. This confidential informant previously had supplied the Task Force with reliable information which had resulted in five separate arrests for narcotic-related offenses and the seizure of contraband. Responding to this information, Investigator Mullikin initiated surveillance of the residence located at 225 Hollywood, and on one occasion, he observed a red Honda CRX vehicle parked outside the residence.

Approximately three days after receiving the information from the confidential informant, on the evening of September 12, 1993, Investigator Mullikin received a telephone call from an anonymous informant who also related that the residents of the house located at 225 Hollywood were involved in the possession and sale of illegal drugs. The informant claimed to have observed illegal drugs inside the residence within four days of the call. The informant further claimed that shortly before placing the call he observed marijuana in a red Honda CRX vehicle which was parked outside the residence and saw both suspects present at the residence. The anonymous informant supplied defendant Collins' name as the owner of the Honda and also provided a physical description of both defendants which matched the descriptions previously given by the confidential informant. Finally, the anonymous informant said the defendants worked during the day but used the Honda to sell and deliver illegal drugs late at night.

Less than one hour after receiving the phone call from the anonymous informant, Investigator Mullikin and another officer again set up surveillance near the defendants' residence. They observed the red Honda vehicle at the residence, and approximately five minutes after the officers arrived, two individuals matching the physical descriptions given by both informants came out of the residence and entered the automobile. When the vehicle left the driveway and traveled north on Hollywood, the officers followed and stopped it approximately one-fourth of a mile from the residence.

Defendant Collins was driving the automobile and Keith was the passenger. After confirming that Collins owned the car, Investigator Mullikin obtained permission from Collins to search the vehicle. During the search, the officers discovered a small amount of marijuana and two Lorazepam tablets, a Schedule IV controlled substance. Collins said the Lorazepam tablets had been given to him by a female friend and admitted that he did not have a prescription for the drugs.

The officers placed Collins and Keith under arrest and then sought a warrant to search the residence. Investigator Mullikin provided an affidavit in support of issuance of the search warrant, and in it he recounted the fact that illegal drugs had been found in the defendants' vehicle during the investigative stop. A search warrant was issued by Walter Drake, Municipal Court Judge of the City of Jackson. The officers executed the search warrant and seized from the residence several pounds of marijuana, marijuana seed, Xanax, LSD, several other pills, and drug paraphernalia.

As a result of the search, the defendants were charged by indictment with possession of marijuana with intent to sell or deliver, possession of Schedule IV controlled substances with intent to sell or deliver, and possession of drug paraphernalia. The defendants moved to suppress the evidence seized during the search of the Honda automobile and during the search of their residence. They argued that their constitutional rights under Article I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the United States Constitution had been violated because the officers lacked reasonable suspicion to initiate the investigative stop of their automobile. The defendants also argued that the evidence seized during the search of their residence should be suppressed as "fruit of the poisonous tree" because a portion of the information contained in the affidavit supporting issuance of the search warrant was derived from the illegal investigative stop.

Following a hearing, the trial judge found the investigative stop of the defendants' automobile constitutionally invalid and, therefore, granted the motions to suppress the evidence seized during the search of the vehicle and during the search of the defendants' residence. The State sought and obtained an interlocutory appeal from the trial court's decision. Finding that the evidence in the record preponderated against the trial court's conclusion that the anonymous tip was not sufficiently reliable to establish reasonable suspicion to support the investigative stop of the defendants' vehicle, the Court of Criminal Appeals reversed the judgment of the trial court and remanded for further proceedings.

Thereafter, the defendants filed a joint application for permission to appeal in this Court, arguing first that the Court of Criminal Appeals erred in concluding that the evidence preponderated against the trial court's decision, and second, that the search of the defendants' residence was constitutionally invalid because the affidavit supporting issuance of the search warrant does not contain a written certificate of the issuing judge attesting that the affidavit had been sworn. We granted the defendants' application for permission to appeal and, for the reasons, hereafter explained, now affirm the judgment of the Court of Criminal Appeals.

STANDARD OF REVIEW

When reviewing a trial court's ruling on a motion to suppress, "[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). We afford to the party prevailing in the trial court the strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence. The findings of a trial court in a suppression hearing will be upheld unless the evidence preponderates against those findings. Id. The application of the law to the facts found by the trial court, however, is a question of law which this Court reviews de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

REASONABLE SUSPICION

In this Court, the defendants initially contend that the investigative automobile stop was unconstitutional because the anonymous informant's tip did not demonstrate the informant's veracity or basis of knowledge as required by this Court's decisions in State v Jacumin, 778 S.W.2d 430 (Tenn.1989) and State v. Pulley, 863 S.W.2d 29 (Tenn.1993). The State responds that the investigative stop in this case was constitutionally permissible, considering the totality of the circumstances, including the information which previously had been provided by the confidential informant and the independent police corroboration, because the law enforcement officers had reasonable suspicion, supported by specific and articulable facts, to believe that the defendants were committing a crime.

Both the Fourth Amendment ¹ to the United States Constitution and Article I, Section 7 ² of the Constitution of Tennessee prohibit unreasonable searches and seizures and direct that search warrants be issued upon probable cause. These constitutional provisions are designed to "safeguard the privacy and security of individuals against arbitrary invasions of government officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967); see also State v. Downey, 945 S.W.2d 102, 106 (Tenn.1997); Sneed v. State, 221 Tenn. 6, 13, 423 S.W.2d 857, 860 (1968).

Accordingly, under both the federal and state constitutions, warrantless searches and seizures such as the investigative automobile stop which occurred in this case are presumed to be unreasonable. Evidence discovered as a result thereof is...