William Ware, Virginia Ware, and Summer Ware v. Michael C. Green, Commissioner, State of Tennessee Department of Safety ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
WILLIAM WARE, )
VIRGINIA WARE, and )
SUMMER WARE, )
)
Plaintiffs/Appellants, )
) Davidson Chancery
) No. 95-2493-III
VS. )
) Appeal No.
) 01A01-9604-CH-00170
MICHAEL C. GREENE, )
Commissioner, State of Tennessee )
Department of Safety, )
)
Defendant/Appellee. )
APPEAL FROM THE CHANCERY COURT FOR DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ROBERT S. BRANDT, CHANCELLOR
For the Plaintiffs/Appellants: For the Defendant/Appellee:
John S. Colley, III John Knox Walkup
COLLEY & COLLEY Attorney General and Reporter
Columbia, Tennessee
Rebecca Lyford
Assistant Attorney General
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the forfeiture under the Tennessee Drug Control Act
of $4,710.75 in cash, twenty-two pistols, rifles and shotguns, a video camera,
silver bars, and assorted gold and silver coins during a search of a residence in
Waynesboro. The Commissioner of Safety ordered the currency and personal
property forfeited despite the family’s contention that an initial search of their
home and property without a warrant was illegal. The family filed a petition for
judicial review in the Chancery Court for Davidson County. The trial court found
the personal property was lawfully seized after the officers obtained a search
warrant and affirmed the forfeiture order. The family perfected this appeal. We
have determined that there is substantial and material evidence to support the
commissioner’s decision.
I.
Around midday on September 29, 1994, Special Agent James Lawson of the
Tennessee Alcoholic Beverage Commission and Trooper Dennis Peevyhouse of
the Tennessee Highway Patrol were conducting aerial reconnaissance of the
Waynesboro area from a helicopter at an altitude of approximately 900 feet. They
observed a patch of marijuana growing on property owned by William and
Virginia Ware. The patch was approximately one hundred feet from the Wares’
house, and even though the marijuana plants were covered by opaque netting, the
sunlight filtering through the cloth enabled the officers to easily identify the plants
as marijuana. They radioed their discovery to a ground team and directed them
toward the Ware property.
Under Trooper Peevyhouse’s direction, Special Agent Bond Tubbs of the
Tennessee Alcoholic Beverage Commission entered the Ware property along one
of the driveways leading to the Wares’ house. As he approached the house, he
discovered two additional marijuana patches on the left of the driveway which
were not visible from the road. He also observed other containers in which large
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marijuana plants were growing on other portions of the property. Agent Tubbs
radioed confirmation that marijuana was growing in abundance on the Wares’
property.
As the four other officers accompanying Agent Tubbs made their way
toward the Wares’ residence, they encountered Summer Ware, the Wares’
daughter. She did not respond to them when they identified themselves as law
enforcement officers and informed her that they had discovered marijuana
growing on the property. Mrs. Ware, who was in the house, likewise declined to
respond to the officers or to permit them to enter the residence. After Summer
Ware eventually restrained the family’s pit bull, the officers entered the house to
secure the premises and to determine whether anyone else was in the house. As
they walked through the house, they observed a bag of marijuana on a window sill
and another bag of marijuana hanging on a wall. They discovered no other
persons in the house but shortly thereafter apprehended Mr. Ware in the woods
surrounding the house. At that point, Mr. and Mrs. Ware and their daughter were
placed under arrest.
The Circuit Court for Wayne County issued a search warrant for the Ware
property based on an affidavit prepared by Agents Lawson and Callahan based on
the helicopter observations of Trooper Peevyhouse. The officers began the search
of the property at 4:30 p.m. on September 29, 1994 and continued until the next
morning. During this search, the officers discovered and seized numerous items
associated with the cultivation of marijuana, as well as $4,710.75 in cash, twenty-
two pistols, rifles and shotguns, a video camera, assorted gold and silver coins,
silver bars, 151 marijuana plants, 200 LSD units, and one ounce of
methamphetamine.
The Wares filed a claim seeking the return of their personal property on the
ground that it had been retained as a result of an illegal search. The administrative
law judge determined that Agent Tubbs’ discovery of the two marijuana patches
to the left of the Wares’ driveway did not provide probable cause but that
discovery of the first patch of marijuana by the officers in the helicopter provided
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the officers with sufficient justification to enter the Wares’ property and home.1
Accordingly, the ALJ determined that the officers were legally on the Wares’
property and thus that they had not seized the Wares’ personal property illegally.
The ALJ denied the Wares’ claim for the return of their property. The
Commissioner of Safety affirmed this conclusion, as did the trial court.
II.
The Wares assert that the officers’ entry onto their property and into their
home was illegal and that it tainted the later search conducted after the officers
obtained a warrant. They contend that Trooper Peevyhouse’s “confirmed”
observation of marijuana from the air did not provide sufficient justification for
the officers to proceed without first obtaining a warrant and that it likewise did not
provide an adequate basis on which to obtain a search warrant. The Wares also
contend that there is no evidence, other than the illegally seized evidence, proving
that their property was subject to forfeiture under the Tennessee Drug Control Act.
On this appeal, the Department does not base its forfeiture case on evidence
obtained by the officers before they obtained the search warrant. Rather, it bases
its case on the observations of Agent Lawson and Trooper Peevyhouse and on the
evidence seized after the officers obtained a warrant to search the Wares’ house
and surrounding property. Thus, the pivotal issue is whether the information
provided by Trooper Peevyhouse provided an adequate basis for obtaining a
search warrant.
The exclusionary rules used in criminal proceedings are equally applicable
in forfeiture proceedings. See One 1958 Plymouth Sedan v. Pennsylvania, 380
U.S. 693, 702, 85 S. Ct. 1246, 1251 (1965); Williams v. State Dep’t of Safety, 854
S.W.2d 102, 106-07 (Tenn. Ct. App. 1992). Accordingly, evidence obtained in
violation of a defendant’s constitutional rights is not admissible, see Tenn. R.
Crim. P. 41(f); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691 (1961);
1
The Department has not taken issue on this appeal with the ALJ’s findings with regard to
the suppression of the evidence concerning the two marijuana patches growing to the left of the
Wares’ driveway, and so the correctness of this finding is not before us on this appeal.
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Hughes v. State, 145 Tenn. 544, 565, 238 S.W. 588, 594 (1922), nor is evidence
derived from illegally obtained evidence. See Wong Sun v. United States, 371
U.S. 471, 485, 83 S. Ct. 407, 416 (1963). However, these exclusionary rules do
not prohibit the introduction of evidence obtained by means genuinely
independent from the constitutional violation. See Segura v. United States, 468
U.S. 796, 805, 104 S. Ct. 3380, 3385 (1984); and State v. Clark, 844 S.W.2d 597,
600 (Tenn. 1992).
The search warrant at issue in this case was obtained based on the
information provided by Trooper Peevyhouse alone. His observation of marijuana
was independent of the marijuana discovered by Agent Tubbs as he approached
the Wares’ house before the officers obtained the warrant. The adequacy of the
information supplied by Trooper Peevyhouse should be measured by the two-
prong Aguillar-Spinelli test.2 The “basis of knowledge” prong requires the issuing
magistrate to consider the basis for the affiant’s information; while the “veracity”
prong requires the issuing magistrate to determine whether the information
provided in the affidavit is credible. See State v. Valentine, 911 S.W.2d 328, 330
(Tenn. 1995).
The Wares attack the information supplied by Trooper Peevyhouse on both
fronts. First, they assert that the combination of the altitude of the helicopter
coupled with the fact that the marijuana was covered with opaque cloth indicate
that Trooper Peevyhouse did not have a sufficient basis for concluding that the
vegetation he observed under the opaque cloth was marijuana. Second, they
attempt to undermine Trooper Peevyhouse’s credibility by arguing that he could
not have been very confident about his discovery of marijuana because he radioed
Agent Tubbs to “confirm” that the officers on the ground had indeed discovered
marijuana on the Wares’ property.
2
See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S.
108, 84 S. Ct. 1509 (1964).
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Neither of these arguments is sufficient to call into question either the basis
of Trooper Peevyhouse’s information or his veracity. In their affidavit used to
obtain the search warrant, Agents Lawson and Callahan stated that they had
received information from Tennessee Highway Patrol
Trooper Dennis Peevyhouse that on September 29,
1994, he observed marijuana growing on the premises
belonging to William Dean Ware located at Route # 4,
Box 928, Waynesboro, Tennessee. The marijuana was
approximately 100 feet from the house. Trooper
Peevyhouse observed the marijuana while conducting
an aerial search of Wayne County. Trooper Peevyhouse
has been trained in the aerial detection of marijuana
growing and has observed marijuana growing many
times in the past that has lead [sic] to arrests and
convictions. Furthermore, it has been the experience of
your affiants that person [sic] who grow marijuana tend
to keep marijuana, marijuana seeds, pictures and
records in their residences.
The adequacy of this affidavit must be viewed in light of the circumstances and
in light of the entire substance of the affidavit. See State v. Lowe, 949 S.W.2d
300, 304 (Tenn. Crim. App. 1996).
The information contained in the affidavit was sufficient for a neutral,
detached magistrate to determine that Trooper Peevyhouse could be believed and
that he was capable of making a reliable determination that marijuana was
growing on the Wares’ property. The affidavit stated that Trooper Peevyhouse
had special training and experience in spotting marijuana from the air and that he
had successfully found marijuana “many times in the past.” These statements
establish that Trooper Peevyhouse was reliable and that he was providing
information about the presence of marijuana based on his direct, personal
knowledge. Thus, the affidavit, on its face, provides ample grounds for the
issuance of a warrant to search the Wares’ property.
The fact that Trooper Peevyhouse requested the officers on the ground to
“confirm” that they had found the marijuana is not so much an indication of his
uncertainty as much as it was a direction to the officers to verify that they had
found the marijuana he had already discovered. Trooper Peevyhouse and Agent
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Lawson observed the marijuana from both 900 feet and then from 500 feet. The
photographs in the record depict the sunlight filtering through the cloth netting
enabling the officers to see the marijuana growing underneath. The record
contains more than sufficient evidence to establish that Trooper Peevyhouse was
in a position where he could reliably identify the growing plants as marijuana.
Accordingly, Trooper Peevyhouse’s statements in the affidavit provided
information, independent from the information discovered by the agents on the
ground when they first entered the Wares’ property, that provided an adequate
basis for issuing the warrant to search the Wares’ property.
III.
The Wares also insist that the record does not contain substantial and
material evidence supporting the Commissioner’s decision to forfeit the personal
property seized from their house on September 29 and 30, 1994. For the purpose
of review under Tenn. Code Ann. § 4-5-322(h)(5) (Supp. 1997), “substantial and
material evidence” is such relevant evidence that a reasonable mind may accept
to support a rational conclusion and to furnish a reasonably sound basis for the
action under consideration. See Southern Ry. v. State Bd. of Equalization, 682
S.W.2d 196, 199 (Tenn. 1984). This amount of evidence is something less than
a preponderance of the evidence but more than a scintilla or a glimmer. Wayne
County v. Tennessee Solid Waste Disposal Control Bd., 756 S.W.2d 274, 280
(Tenn. Ct. App. 1988).
We use the same standard to review administrative decisions that trial courts
use. See Estate of Street v. State Bd. of Equalization, 812 S.W.2d 583, 585 (Tenn.
Ct. App. 1990). When we are reviewing the evidentiary foundation of an
administrative decision under Tenn. Code Ann. § 4-5-322(h)(5), we are not
permitted to weigh factual evidence and substitute our own conclusions and
judgment for that of the agency, even if the evidence could support a different
determination than the agency reached. See Tenn. Code Ann. § 4-5-322(h);
Humana of Tenn. v. Tennessee Health Facilities Comm’n, 551 S.W.2d 664, 667
(Tenn. 1977).
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The administrative record contains overwhelming evidence that the Wares
were engaged in a clandestine commercial marijuana business at their home near
Waynesboro. Agent Lawson and Trooper Peevyhouse personally observed a large
patch of marijuana growing near their house. This evidence alone, especially in
the absence of any exculpatory explanations from the Wares themselves, provides
substantial and material evidence that the cash and personal property seized at the
Wares’ home on September 29 and 30, 1994 was either furnished or intended to
be furnished in exchange for controlled substances, proceeds traceable to the
exchange of controlled substances, or property used or intended to be used to
facilitate violations of the Tennessee Drug Control Act of 1989. Accordingly, the
Commissioner declared that the seized property should be forfeited.
IV.
We affirm the order of the Commissioner of Safety declaring the seized
property forfeited under the Tennessee Drug Control Act of 1989 and remand the
case to the trial court with directions to remand it to the Commissioner of Safety
for whatever proceedings may be required. We tax the costs of this appeal, jointly
and severally, to William Ware, Virginia Ware, and Summer Ware, and their
surety, for which execution, if necessary, may issue.
____________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
___________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
___________________________________
BEN H. CANTRELL, JUDGE
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