The Tennessee Supreme Court issued a decision recently that overruled Jacumin and replaced it with a totality of the circumstances analysis when reviewing search warranats for probable cause. Deputy District Attorney Gene Perrin prepared the following summary of the decision:
A routine traffic stop of a small-time dealer eventually lead to the execution of a search warrant and the discovery of a large amount of marijuana and over $1,000,000 in cash. The search warrant was based upon a multi-agency federal and state investigation into a DTO that was importing large amounts of marijuana into Maury County, TN. The search warrant affidavit included the initial information given by the dealer but for the most part, relied on information provided by the DEA and surveillance of the property which was being used as a drop location due to its rural setting. The trial court denied the motion to suppress on the basis that the affidavit was sufficient but the Criminal Court of Appeals reversed the trial court finding in part that the affidavit for the search warrant failed to establish the basis of knowledge and credibility of the dealer turned informant as well as the affiant recklessly made false statements when he applied for the search warrant.
1) The TN Supreme Court overruled Jacumin (strict reliance on Aguilar and Spinelli analysis) and adopted the Gates analysis when reviewing a search warrant affidavit for probable cause: totality of the circumstances.
2) The Tennessee Supreme Court in its analysis stated the law governing the review of search warrant affidavits. Points of consideration included: 1) a court may review only what is contained in the affidavit; 2) a court may consider whether the criminal activity under investigation is an isolated event or a protracted pattern of conduct, the nature of the property sought, the normal inferences of where a criminal would hide the evidence, and the perpetrator’s opportunity to dispose of incriminating evidence; 3) an affidavit need not implicate a particular person under investigation; 4) the time of occurrence of the facts relied on by the affiant cannot be stale but if the illegal activity is ongoing, an affidavit does not become stale over the passage of time; 5) an affidavit may include information that would not be admissible as evidence in a criminal trial and need not reflect the direct personal observations of the affiant; 6) a presumption of reliability attaches to information provided by a law enforcement officer or citizen informant as long as their status is clearly stated in the affidavit but there is no such presumption when the information is supplied by an unknown informant or an informant from the criminal side of the street.
3) The Supreme Court stated that for too long, Tennessee courts have strictly applied the rigid standards of Aguilar and Spinelli leading to too much confusion thus the standard going forward is whether under a totality of the circumstances review there is probable cause to believe that contraband or evidence will be found in a particular place. The Court made it clear that an affiant must still establish the informant’s basis of knowledge and his or her credibility but these factors are to be considered along with everything else.
4) The Supreme Court, in reversing the Criminal Court of Appeals, criticized the lower court’s reliance on the fact that the information initially provided by the small-time dealer implicated the son of the Defendant and not the Defendant who owned the property being used by the DTO as a drop location. The Court made it clear that the critical element in a reasonable search is not that the owner of the property is suspected of a crime but that there is reasonable cause to believe that the specific things to be searched for and seized are located on the property to which entry is sought.
5) The Supreme Court also addressed the lower court’s findings concerning the information provided by the affiant and their conclusion that the affiant recklessly mislead the judge who issued the search warrant. The Court stated that are two statements that authorize the impeachment of an affidavit that is sufficient on its face: a false statement made with the intent to deceive the Court, whether material or immaterial to the issue of probable cause; and a false statement, essential to the establishment of probable cause, recklessly made. Allegations of negligence or innocent mistakes are insufficient to invalidate a search warrant and a defendant bears the burden of proving the allegation of falsity by a preponderance of the evidence.
6) The Court found that neither of the statements made by the affiant pertaining to the GPS coordinates of the property and the affiant’s mistake of using the word “residence” instead of “property” when describing what surveillance officers saw were false statements and that both were innocent mistakes in the wording of the affidavit made by a non-lawyer affiant in the midst and haste of an investigation
7) The Supreme Court reinstated the trial court’s denial of the motion to suppress.
State v. Jerry Lewis Tuttle, — S.W. 3rd — (Tenn. 2017)
The full opinion can be found here: http://www.tncourts.gov/sites/default/files/tuttlej.opn_.pdf