State v. Tina/David Wade ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
SEPTEMBER 1999 SESSION
FILED
October 25, 1999
Cecil Crowson, Jr.
STATE OF TENNESSEE, )
Appellate Court Clerk
) NO. 02C01-9810-CC-00312
Appellee, )
) HENRY COUNTY
VS. )
) HON. JULIAN P. GUINN,
TINA M. YEOMANS ) JUDGE
and DAVID McCLUSTER WADE, JR. )
)
Appellants. ) (Possession of Marijuana)
FOR THE APPELLANT: FOR THE APPELLEE:
VICTORIA L. DiBONAVENTURA PAUL G. SUMMERS
104 West Washington Street, Ste. A Attorney General and Reporter
Paris, TN 38242
J. ROSS DYER
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
ROBERT "GUS" RADFORD
District Attorney General
STEVEN L. GARRETT
Assistant District Attorney General
P. O. Box 94
Paris, TN 38242-0094
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE
OPINION
Defendants were convicted by a Henry County jury of simple possession of
marijuana. In this appeal as of right, defendants contend the search warrant
affidavit was insufficient to establish probable cause. After a review of the record,
we AFFIRM the judgment of the trial court.
FACTS
Timothy Hastings, the seventeen-year-old son of defendant Yeomans, left
a “state run half-way house” without permission.1 Valerie Hancock, twelve years of
age, ran away from her grandparents’ residence and accompanied Hastings to the
defendants’ residence2 in Paris, Tennessee, hoping to marry him. Hastings told his
mother he had been released from the half-way house, and Hancock advised
Yeomans she had a note from her grandparents authorizing her to stay two weeks
in Paris.
The juveniles ran away from the defendants’ residence when defendant
Yeomans advised them that she would take Hancock back home the next day. On
November 6, 1997, the two juveniles “were found not in school and were taken to
1
There was no verbatim transcript of the proceedings available. Appellant’s counsel,
pursuant to Tenn. R. App. P. 24(c), filed a statement of the evidence. Counsel certified that
notice of filing was sent to the state. No objections were filed by the state. Although the trial
judge did not approve the statement, it is deemed approved when the trial judge takes no action
within 30 days after expiration of the period for filing objections. Tenn. R. App. P. 24(f). It
is the trial court clerk’s responsibility to send such statements to the trial judge. Id.
Although not relevant to the disposition of this appeal, the parties have made reference
to facts not set forth in the statement of the evidence. The state has made reference to a
negative drug screen of the citizen informant. Although there was a reference to the drug
screen in an affidavit in the technical record, it does not appear in the statement of the evidence
and was not considered.
Counsel and trial courts should be aware of the effect of failure to respond to an
appellant’s statement of the evidence.
2
Apparently, defendants were living together. Some pleadings indicate Yeomans as
“Tina M.Yeomans (Wade).”
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the juvenile court authorities.” The juvenile officer learned that Hastings had left the
half-way house without permission and that Hancock was listed as a “missing
person.”
Hancock advised the juvenile officer that she knew where some marijuana
was located. Deputy Sheriff Scott Wyrick was summoned and informed by Hancock
that “marijuana could be found in a black pouch under the couch of the
defendants[’] home.” Based upon his conversation with Hancock, Deputy Wyrick
submitted the following affidavit in support of his request for a search warrant:
On November 6, 1997, the affiant interviewed a 12-year-old
juvenile whose name was Valerie Hancock. Hancock told the affiant
that she had been staying at Tina Yeomans’ residence in Henry
County, Tennessee. Hancock had witnessed Tina Yeomans smoking
marijuana inside the residence as late as 11-5-97. Hancock had seen
Yeomans using and storing marijuana throughout Yeomans’
residence.
Hancock does know what marijuana looks like and smells like
from being around it before.
Juvenile Officer Kelly Pinson witnessed the interview between
Hancock and the affiant.
Based on Hancock’s information, the affiant does believe that
Yeomans has marijuana in her residence.
Hancock gives this information willingly and asks for no
payment for the information.
The affidavit was executed on November 6, 1997, and the search warrant was
issued by the magistrate on the same date.
A search of defendants’ home revealed “a black pouch under the couch
containing a green leafy plant material which later tested to be marijuana.”
Marijuana was also found in the master bedroom.
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DEFENDANTS’ CONTENTIONS
Defendants contend the search warrant affidavit was faulty. Specifically, they
aver the affidavit was insufficient for the magistrate to consider Hancock a “citizen
informant,” and her credibility was not sufficiently established. Defendants also
contend the affidavit omits material information concerning Hancock’s status which
was essential to the magistrate’s determination of reliability. We disagree with
defendants’ contentions.
INFORMANT’S STATUS
Information provided by an ordinary citizen is presumed to be reliable, and
the affidavit need not establish that the source is credible or that the information is
reliable. State v. Melson, 638 S.W.2d 342, 354-56 (Tenn. 1982), cert. denied, 459
U.S. 1137, 103 S. Ct. 770, 74 L. Ed. 2d 983 (1983). On the other hand, if the source
is a criminal informant, reliability must be determined by the two-pronged Aguilar-
Spinelli test, as adopted by the Tennessee Supreme Court in State v. Jacumin, 778
S.W.2d 430, 436 (Tenn. 1989). Under this test, the affidavit must include “(1) the
basis for the informant’s knowledge, and either (2)(a) a basis establishing the
informant’s credibility or (2)(b) a basis establishing that the informant’s information
is reliable.” State v. Cauley, 863 S.W.2d 411, 417 (Tenn. 1993)(quoting State v.
Ballard, 836 S.W.2d 560, 562 (Tenn. 1992)).
In order for the informant to be considered a citizen informant, the affidavit
should contain more than conclusionary allegations that the informant was a
“concerned citizen source,” “acted on civic duty,” and “asked for no payment for
their information.” State v. Stevens, 989 S.W.2d 290, 294 (Tenn. 1999). Generally,
a more particularized showing of the law-abiding nature of the person supplying the
information is needed. Id. at 295. The reliability of the informant, as well as the
information furnished, must be judged from all the circumstances and from the
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entirety of the affidavit. Cauley, 863 S.W.2d at 417. A finding of probable cause
by the issuing magistrate is entitled to great deference. Melson, 638 S.W.2d at 357.
We confine our examination to the affidavit itself. The affidavit specifically
names the informant, giving her age. The reason for her presence in defendants’
residence was set forth; namely, she had been staying at the residence. The
informant had personally witnessed the smoking of marijuana the day before the
affidavit’s swearing, and had seen it stored. Further, the juvenile stated that she
was familiar with the appearance and smell of marijuana. Unfortunately, it is not
unreasonable to conclude that a twelve-year-old would be familiar with marijuana.
Although certainly not conclusive, the affidavit further states that the informant did
not seek payment for the information. Even though the age of the informant is
certainly relevant, the mere fact that the citizen was a juvenile, age 12, does not
preclude a finding of reliability. See Easton v. City of Boulder, 776 F.2d 1441, 1450
(10th Cir. 1985)(permissible to rely upon statements of five-year-old and three-year-
old children in issuing arrest warrant). In fact, a finding of probable cause may rest
upon evidence which is not legally competent in a criminal trial. United States v.
Ventresca, 380 U.S. 102, 107, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).
The information set forth in the affidavit is sufficient to establish the juvenile
as a “citizen informant” and not a “typical criminal informant or tipster,” or an
informant from the “criminal milieu.” Melson, 638 S.W.2d at 354. Accordingly, the
information provided by the juvenile was credible and provided sufficient probable
cause for the issuance of the search warrant.
This issue is without merit.
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OMISSION OF INFORMANT’S STATUS
Defendant next contends the officer misrepresented material facts by failing
to include that the informant was unknown to the affiant, was a missing person, had
come to Henry County to marry another juvenile, and was in the presence of
juvenile authorities when she provided this information. We conclude that the
omission of these facts does not affect the validity of the search warrant.
An affidavit, sufficient on its face, may be impeached only by showing “(1) a
false statement made with intent to deceive the Court, whether material or
immaterial to the issue of probable cause,” or “(2) a false statement, essential to the
establishment of probable cause, recklessly made.” State v. Little, 560 S.W.2d 403,
407 (Tenn. 1978); see also Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct.
2674, 57 L.Ed.2d 667,672 (1978). A facially valid search warrant may only come
under attack when the defense establishes that the search warrant was procured
by officers through perjury or coercion. State v. Cannon, 634 S.W.2d 648, 650
(Tenn. Crim. App. 1982). Allegations of negligence or innocent mistakes are
insufficient to invalidate the search warrant. Franks, 438 U.S. at 171. In order to
be entitled to relief, a defendant must show that the reckless statements were
necessary to the finding of probable cause. Id. at 155-56; see also State v. Smith,
867 S.W.2d 343, 350 (Tenn. Crim. App. 1993). The burden is on the defendant to
establish the allegation of perjury or reckless disregard by a preponderance of the
evidence. See Franks, 438 U.S. at 156.
Clearly, the defendants do not fall within purview of Little in that the affidavit
did not contain a “false statement.” Little, 560 S.W.2d at 407. Instead, defendants
argue that the “omission” of material facts invalidates the search warrant. Although
Franks and Little concerned only “false statements,” many courts have recognized
that the same rationale should extend to material omissions in an affidavit. See 2
LaFave, Search and Seizure § 4.4(b) (3d ed. 1996)(citations omitted). However, an
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affidavit omitting potentially exculpatory information is less likely to present a
question of impermissible official conduct than one which affirmatively includes false
information. United States v. Atkin, 107 F.3d 1213, 1217 (6th Cir. 1997).
We conclude the omission of facts relating to the informant’s status in this
case does not invalidate the warrant. We first note that the statement of the
evidence contains nothing to indicate that the officer intentionally withheld what he
considered to be material information. Although we agree that an informant’s
status, i.e. the facts and circumstances surrounding the giving of information, is
generally relevant to the issue of credibility, a disclosure of this informant’s status
would still not reflect that the twelve-year-old was from the criminal milieu; nor would
it negate the probable cause justifying the issuance of the search warrant. Other
cases have held that the omission of information concerning the informant’s status
was not fatal to the search warrant. See United States v. LaMorie, 100 F.3d 547(8th Cir. 1996)(omission that informant was a convicted felon not fatal); State v.
Lease, 196 W.Va. 318, 472 S.E.2d 59 (1996)(omission that informant was under
arrest for public intoxication and marijuana possession and in state of extreme
agitation at time of statement not fatal).
Thus, we conclude that even if the omitted information had been included in
the affidavit, probable cause still existed for the issuance of the warrant.
Accordingly, this issue is without merit.
CONCLUSION
Based upon our careful review of the record, we AFFIRM the judgment of
the trial court.
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____________________________
JOE G. RILEY, JUDGE
CONCUR:
____________________________
DAVID G. HAYES, JUDGE
____________________________
THOMAS T. WOODALL, JUDGE
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