State v. Moon

• Decision Date: 17 July 1992
• Citation: 841 S.W.2d 336
• Parties: STATE of Tennessee, Appellee, v. Bobby Glen MOON, Jr., Appellant.
• Court: Tennessee Court of Criminal Appeals

Page 336

841 S.W.2d 336

STATE of Tennessee, Appellee, v. Bobby Glen MOON, Jr., Appellant.

Court of Criminal Appeals of Tennessee,

at

Nashville.

July 17, 1992.

No Permission to Appeal Applied

for to the

Supreme Court.

Michael J. Flanagan, Nashville, for appellant.

Charles W. Burson, Atty. Gen., and Cyril V. Fraser, Sp. Asst. Atty. Gen., Nashville, Dan Mitchum Alsobrooks, Dist. Atty. Gen., and Robert S. Wilson, Asst. Dist. Atty. Gen., Charlotte, for appellee.

OPINION

TIPTON, Judge.

The defendant, Bobby Glen Moon, Jr., appeals his convictions for manufacturing marijuana and possession of marijuana. He received concurrent sentences of one year and six months, respectively. The issue on appeal is whether the trial court erroneously denied the defendant's motion to suppress evidence. We hold that the trial court erred.

This case involves consideration of the requirements in Tennessee for establishing probable cause through the use of information obtained from an informant as set out in State v. Jacumin, 778 S.W.2d 430 (Tenn.1989). Also, it highlights the importance our system of justice attaches to the requirements that, in issuing a search warrant, (1) a judicial officer make a neutral and detached determination of the existence of probable cause and (2) such determination be made only upon information placed in an affidavit.

The defendant was convicted upon evidence seized pursuant to a search warrant issued for his residence. The affidavit for the warrant consists of a preprinted form with underlined blank spaces which were completed by the affiant, Dickson County Detective John Patterson. The affiant's material information in the affidavit was obtained from an informant. The pertinent portion of the affidavit, with the added information filled in as underlined, is as follows:

Affiant further says that an informant, whose name he has this date revealed to the official before whom this application is made, has told the affiant that within the last ten days such informant has been on premises above described and had personally seen marijuana being used and/or distributed, in violation of the law. Affiant further states that such informant is a reliable person who has given information against his penal [interest] and in this case has given information that affiant has checked and found to be correct.

The defendant contends that the affidavit fails to establish the reliability of the informant.

Initially, we note that the record in this case reflects that the trial judge's ruling that probable cause existed for the issuing of the search warrant was largely based upon testimony provided by the affiant at the suppression hearing. Without question, the evidence presented at the hearing was more than adequate to show probable cause that criminal activity regarding marijuana was afoot at the defendant's residence. However, this same evidence was not contained in the affidavit submitted to obtain the search warrant. We do not question the reliability of the affiant's testimony but as a matter of policy the consideration of such evidence is inappropriate and lends itself to the risk of after-the-fact justification for a warrant.

Historically, an affidavit has been an indispensable prerequisite to the issuance of a search warrant in Tennessee. T.C.A. Sec. 40-6-103; State ex rel. Blackburn v. Fox, 200 Tenn. 227, 292 S.W.2d 21, 23 (1956); Harvey v. State, 166 Tenn. 227, 60 S.W.2d 420 (1933). Likewise, the affidavit must set forth on its face facts which establish probable cause before a search warrant may issue. T.C.A. Sec. 40-6-104; Tenn.R.Crim.P. 41(c). Thus, in Tennessee, probable cause to support the issuance of the warrant must appear in the affidavit and judicial review of the existence of probable cause will not include looking to other evidence provided to or known by the issuing magistrate or possessed by the affiant. State v. Jacumin, supra, 778 S.W.2d at 432; Harvey v. State, supra.

Also, central to the obtaining of a search warrant is the requirement that the issuing magistrate make a judicial determination, that is, a neutral and detached judgment, that probable cause is shown. See State v. Nolan, 617 S.W.2d 174 (Tenn.Crim.App.1981); State v. Berry, 592 S.W.2d 553, 564 (Tenn.1980) (Henry, J., dissenting); Gallimore v. State, 173 Tenn. 178, 116 S.W.2d 1001 (1938). This need for the magistrate's independent judgment means that the affidavit must contain more than merely conclusory allegations by the affiant. "Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police." United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

The need for a magistrate's independent judgment was an underlying basis for the two-pronged test developed by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and explained in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) for determining the existence of probable cause under the Fourth Amendment to the United States Constitution when an affidavit is based upon an informant's allegations. Under the first or "basis of knowledge" prong, facts must be revealed which permit the magistrate to determine whether the informant had a basis for his information that a certain person had been, was or would be involved in criminal conduct or that evidence of crime would be found at a certain place. Under the second or "veracity" prong, facts must be revealed which permit the magistrate to determine either the inherent credibility of the informant or the reliability of his information on the particular occasion. See Wayne R. LaFave, 1 Search and Seizure, Sec. 3.3(a) (2d ed. 1978); Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974).

For almost twenty years, probable cause under the Fourth Amendment could not be found based solely upon an informant's allegations without the two-pronged test being met. However, in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the court abandoned the two-pronged test and adopted a totality of the circumstances test for probable cause, generally. Tennessee did not follow suit. In State v. Jacumin, supra, our Supreme Court held that the standard under Article 1, Sec. 7, of the Tennessee Constitution by which probable cause may be established by information from an informant would be the Aguilar-Spinelli two-pronged test. ¹ 778 S.W.2d at 436.

In Jacumin, though, the court warned against applying the two-pronged test hypertechnically. 778 S.W.2d at 436. Also, it approved, as it previously had in State v. Bryan, 769 S.W.2d 208, 211 (Tenn.1989), the United States Supreme Court's statement in Illinois v. Gates, supra, relative to the duties of magistrates and reviewing courts regarding the determination of probable cause.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

462 U.S. at 238-39, 103 S.Ct. at 2332. Thus, review of the affidavit in this case begins by measuring its contents under the two-pronged test in a commonsense, nonhypertechnical fashion.

First, the "basis of knowledge" prong is supported in this case by the informant seeing "marijuana being used and/or distributed" at the defendant's residence. The use of "and/or" in the printed form affidavit could bring into question what the informant actually saw, if the form means that the informant said he saw marijuana "used or distributed." Law enforcement should be mindful of our Supreme Court's following admonition:

The use of printed forms has made the procurement of a search warrant the merest formality, considering the fundamental constitutional rights which the search invades. Certainly, this Court can do no less than to require that the few blank spaces be filled in, and other details of the formality be carried out with care and precision.

Everett v. State, 182 Tenn. 22, 184 S.W.2d 43, 45 (1944). However, a commonsense reading of the affidavit reflects that it contains a substantial basis for the magistrate to determine that the informant had a sufficient basis of knowledge to state that the marijuana was at the residence.

As to the "veracity" prong, it must come from the affiant's claim that the informant is reliable and "has given information against his penal [interest] and in this case has given information that affiant has checked and found to be correct." As to the affiant's claim that the informant is reliable, Spinelli specifically provides that such a conclusory allegation of reliability is insufficient. 393 U.S. at 412, 89 S.Ct. at 587. What must be shown in the affidavit are underlying circumstances from which the magistrate can conclude that the informant is credible or his information is reliable.

Ordinarily, the general credibility of an informant has been shown by his having previously given relevant information to law enforcement which has proven to be reliable. Obviously, an informant's "track record" of providing verified information would be relevant in inferring that the informant is a credible person. Including such a history of reliability in an affidavit gives a magistrate information from which he or she may make an independent determination regarding the informant's credibility. See, e.g., State v. Henry, 680 S.W.2d 476 (Tenn.Crim.App.1984). However, the affidavit before us makes no claim that the...