State v. Thomas

• Decision Date: 20 March 1991
• Citation: 818 S.W.2d 350
• Parties: STATE of Tennessee, Appellee, v. Ruble Ralph THOMAS, Jr., and Debra Lentz, Appellants.
• Court: Tennessee Court of Criminal Appeals

Page 350

818 S.W.2d 350

STATE of Tennessee, Appellee, v. Ruble Ralph THOMAS, Jr., and Debra Lentz, Appellants.

Court of Criminal Appeals of Tennessee at Knoxville.

March 20, 1991.

Permission to Appeal Denied by

Supreme Court Sept. 9, 1991.

Ben W. Hooper, II, Newport, for appellant Thomas.

Tim S. Moore, Newport, for appellant Lentz.

Charles W. Burson, Atty. Gen. and Reporter, Amy L. Tarkington, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevierville, for appellee State of Tenn.

OPINION

WADE, Judge.

Ruble Ralph Thomas, Jr., was convicted of possession of cocaine in excess of 30 grams with the intent to sell and deliver and sentenced as a Range I offender to a term of 25 years. Debra Lentz ¹ was convicted of possession of cocaine with intent to sell and deliver and, as a Range I offender, was sentenced to a term of seven years. The sentences were ordered to be served consecutively with those imposed against each defendant for prior Georgia convictions. The issues defendant Thomas presents for review are as follows:

(1) whether the search warrant was sufficiently specific to establish the confidential informant's basis of knowledge;

(2) whether the trial court should have disclosed the identity of the confidential informant and granted an in camera interview regarding the information alleged in the affidavit.

Lentz joins in Thomas' second issue, challenges the sufficiency of the evidence, and presents the following additional issues for review:

(3) whether the information upon which the search warrant was issued was stale, thereby necessitating suppression of the evidence;

(4) whether the search was impermissibly general in nature and whether the officers exceeded the scope of the search warrant's authority by examining the contents of Lentz's pocketbook;

(5) whether the search warrant was invalid because of the unreliability of the informant and material representations and omissions in the affidavit;

(6) whether the defendant Lentz was erroneously denied a preliminary hearing, her right to counsel, and a right to speedy trial;

(7) whether the district attorney general was guilty of prosecutorial misconduct during final argument; and

(8) whether the sentence was excessive.

We affirm as to Thomas. We find, however, that the trial court should have suppressed the evidence used to convict Lentz. Her conviction is reversed and the cause is remanded.

On November 20, 1987, a search warrant was issued for the defendant Thomas' residence based upon the following affidavit:

[Affiant has received reliable information from] [a] reliable and confidential informant that Chip Thomas, alias was keeping cocaine on his premises. Said informant has been on the above mentioned premises within the past ten (10) days and saw a large quantity of cocaine. Said informant is a member of the drug culture and is familiar with the substance, cocaine. Chip Thomas, alias referred to the white powder like substance seen by the informant as "coke." Information received from said informant in the past has resulted in the confiscation of illeg[a]l drugs and two convictions in a court of law. Your affiant [Detective George Grooms] received this information on November 20, 1987.

There was proof at both the suppression hearing and the trial regarding the issuance of a search warrant. Detective Grooms, in charge of this investigation, had employed the confidential informant in several prior cases over a period of two to three years. In this instance, he paid the informant $250.00 for the information leading to the defendants' arrest. Grooms stated that the informant acquired the information within the ten-day period prior to the search but did not reveal the specific date. Because the informant expected that Thomas intended to acquire more drugs during a trip to Florida, he suggested that the detective wait until Thomas' return to search the residence (that comment, however, was not included in the warrant's affidavit).

It was stipulated that each of the defendants had been in Miami for the five days immediately prior to the search. Thomas, accompanied by Lentz, returned to this state in the early morning hours of November 20. When the officers arrived to execute the warrant on the afternoon of that date, Lentz, who had just awakened, answered the door dressed in a nightshirt. When officers asked for Thomas, she directed them to the residence's only bedroom where Thomas was still asleep. They immediately seized a 9 mm. pistol located near the bed. Underneath the weapon, officers found a Tupperware container containing a compressed block of 77.4 percent pure cocaine weighing 499.9 grams wrapped in plastic and newspaper.

Officers next seized a woman's purse located on the bedroom floor. They discovered it contained $3,108.00 in cash, a vial of 76.6 percent pure cocaine weighing 6.4 grams, a gun holster and Lentz's identification.

As they continued their search of the residence, the officers found two cocaine grinders, several zip-lock plastic bags, a triple beam scale, mirrors and straws (often used to facilitate cocaine use), a police scanner, a book entitled The Complete Guide to the Street Drug Game, handwritten records of Thomas' various drug transactions, and a bullet-proof vest. The cocaine seized by the officers had an estimated street value of between $100,000.00 and $120,000.00.

Detective Grooms testified that there was no way of knowing whether the block of cocaine taken in the search was the same as that referred to by his confidential informant. The trial court would not permit defense counsel to question Grooms about the specific date the informant visited the Thomas residence for fear that it would reveal his identity.

Shortly after the defendants' arrests for these charges, they made bond and went to Georgia. Within three weeks, Lentz and Thomas were arrested in Atlanta for the possession of cocaine and approximately 32 grams of marijuana. They were held without bond, tried, and ultimately convicted.

We first consider Lentz's challenge to the sufficiency of the evidence. It is predicated upon her contention that the state failed to show the 6.4 grams of cocaine found in her pocketbook was for anything other than personal use. Detective Grooms, however, stated that the amount was unusually large for a user to possess. The considerable cash found in the pocketbook is also a circumstance suggesting an intention to sell and deliver. The gun displayed in the bedroom near the bed, the holster found in Lentz's possession, the defendants' extensive travel in the days before her arrest, and the drug materials and other paraphernalia seized from the Thomas residence all indicate something more than mere possession of the cocaine.

We think this evidence, when viewed most favorably to the state, is sufficient for a rational trier of fact to have found the essential elements of the crime beyond any reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2782, 61 L.Ed.2d 560 (1979); Tenn.R.App.P. 13(e).

Search Warrant

Thomas contends the search warrant failed to adequately establish the basis for the informant's knowledge. Lentz argues that the informant was unreliable, the information stale, and the warrant too general; she alleges that the officers exceeded the scope of the warrant's authority by searching her pocketbook. Both defendants assert that the trial court should have required disclosure of the identity of the informant and ordered an in camera interview.

In State v. Jacumin, 778 S.W.2d 430 (Tenn.1989), our Supreme Court adopted the two-prong 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), as the guideline for determining probable cause for the issuance of a search warrant. In Aguilar, the United States Supreme Court held that there must be a "basis of knowledge" when the officer relies on hearsay information from a confidential informant:

[T]he 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."

378 U.S. at 114, 84 S.Ct. at 1514 (Emphasis added).

The search warrant in Aguilar was held invalid because nothing in the affidavit established that the affiant had personal knowledge of the matter attested to or that the affiant's source spoke from personal knowledge rather than mere suspicion. Aguilar, 378 U.S. at 113, 84 S.Ct. at 1513.

In Spinelli, the affidavit upon which the search warrant was based did not provide the magistrate any reason to support the officer's conclusion that the informer was reliable, nor did it contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. Spinelli, 393 U.S. at 416, 89 S.Ct. at 589.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the information supporting the issuance of the search warrant was received in an anonymous letter. There was nothing upon which the investigating officers or the magistrate who ultimately issued a search warrant could conclude that the author was reliable. Significantly, the information supplied did not indicate the basis for the writer's predictions as to the future drug transaction. Yet, because of the "totality of the circumstances," the warrant was upheld. In Jacumin, our Supreme Court compared the language of the United States Constitution with Art. 1, Sec. 7 of the Tennessee Constitution:

We are ... of the opinion that the Aguilar -Spinelli standard, or test, is more in keeping with the specific requirement of Art. 1, Section 7 of the Tennessee Constitution that a search not issue "without evidence of the...