TBA Law Blog


Posted by: Jason Smith on Oct 1, 2015

Journal Issue Date: Oct 2015

Journal Name: October 2015 - Vol. 51, No. 10

There is a notable split of authority between the Tennessee Court of Criminal Appeals and the United States Sixth Circuit Court of Appeals regarding the probable cause necessary for issuance of a search warrant. The split involves whether a single controlled purchase of drugs can provide sufficient probable cause to issue a search warrant for the place where the controlled buy occurred. For those readers less familiar with criminal law, a controlled purchase occurs when police use an undercover officer or a confidential informant to buy drugs from a suspected drug dealer.

The case giving rise to this split of authority is State v. Archibald.[1] Archibald was indicted for possession with intent to sell or deliver 26 grams or more of cocaine within 1,000 feet of a school, possession of drug paraphernalia and possession of a firearm during the commission of a dangerous felony following the search of an apartment in Nashville in May 2008.[2] The warrant application included the affidavit of a detective alleging that “within the last 72 hours” a controlled purchase of crack cocaine had been conducted at the subject’s apartment using a confidential informant.[3] Archibald filed a motion to suppress the evidence seized as a result of the search, and the trial court granted the motion on the grounds that the detective’s affidavit lacked facts providing a nexus between the alleged offense and the place to be searched.[4]

A panel of our Court of Criminal Appeals affirmed the trial court’s judgment but disagreed with its reasoning.[5] The Court of Criminal Appeals held that while the affidavit “contained information establishing a nexus between [Archibald’s] apartment and criminal activity, it contained no information tending to establish how long that nexus would persist.”[6] The panel noted that the affidavit contained no information about the quantity of drugs purchased, the identity of the seller, the identity of the apartment’s resident, or the presence of any other drugs in the apartment.[7] Most importantly, the affidavit did not “allege that the seller resided at the apartment” and contained no “facts supporting an inference that the person who sold the drugs to the [confidential informant] was more than a one-time visitor to the apartment.”[8]

Given the dearth of information contained in the detective’s affidavit, the Court of Criminal Appeals held that “the information in the affidavit became stale as soon as enough time had passed for … a one-time seller to leave the apartment” and that “the magistrate … lacked a substantial basis on which to find a fair probability that contraband would be found in [Archibald’s] apartment [72] hours after the [confidential informant] purchased drugs there.”[9] However, the court noted that the affidavit “would have been sufficient had it contained information reliably establishing ongoing criminal activity[,]” such as information connecting the seller to the apartment or that the confidential informant had seen more drugs inside the apartment.[10] With the suppression of the evidence affirmed, the state’s case against Archibald was dismissed.

Unfortunately for Archibald, he was subsequently indicted on several federal charges stemming from the same search and evidence suppressed in state court.[11] In rejecting Archibald’s arguments to suppress the evidence in federal court, the Sixth Circuit held that “a single controlled purchase is sufficient to establish probable cause to believe that drugs are present at the purchase location.”[12] In fact, the Sixth Circuit has repeatedly held that a single controlled buy provides sufficient probable cause for the issuance of a search warrant.[13] The Sixth Circuit also rejected Archibald’s argument that the 72 hours that passed between the controlled purchase and the issuance of the warrant caused the probable cause in the affidavit to go stale.[14] The Sixth Circuit concluded that it was “reasonable that three days after the drug purchase that police would find narcotics, related paraphernalia, and/or the marked money in the residence.”[15]

Since 2012, two Tennessee Court of Criminal Appeals decisions have examined that court’s opinion in Archibald’s case. In State v. Gregory Lamont Hall, the court was presented with another search from Davidson County with facts almost directly on point with Archibald.[16] The affidavit at issue “only described the [confidential informant] entering the apartment [to be searched] and then ‘momentarily’ exiting the apartment after making a controlled” purchase.[17] Like the affidavit in Archibald, the affidavit in Hall “did not reveal the quantity of drugs received, the identity of the seller, the identity of the target location’s residents, … whether the seller was a resident of the target location[,]” or whether the confidential informant “observed other drugs inside the residence.”[18]

The state attempted to distinguish the affidavit at issue in Hall from the affidavit in Archibald by pointing to a statement from the affiant police officer “that he had ‘received information that illegal narcotics were being sold at’ the target residence.”[19] The Court of Criminal Appeals rejected that argument, holding that the statement was merely conclusory and the affidavit failed to provide the source of the information, when the information was received, and any specific details regarding the alleged criminal activity and the target residence.[20] The court concluded that the officer’s conclusory statement alone “could not reliably
establish ongoing criminal activity at the target residence.”[21]

A different panel of the Court of Criminal Appeals examined Archibald in State v. Michael D. Boone.[22] The panel in Boone, once again dealing with a search out of Davidson County, referred to Archibald as “a case infrequently cited since its publication” and determined that the holding in Archibald did not apply to Boone’s case.[23] The key distinguishing fact between Boone’s case and Archibald’s was that the affidavit stated that the affiant police officer observed  Boone leave the residence to meet with the confidential informant and return “directly and freely” to the residence after the controlled purchase.[24] The panel also noted that the affidavit “contained a detailed, reasonable and rational explanation about why the officer believed, from his experience, that the target location may [have] contain[ed] evidence of drug sales,” which had not been included in the affidavit in Archibald.[25]

In addition to the facts distinguishing Boone’s case from Archibald’s, the panel in Boone also stated that the Court of Criminal Appeals had “previously held that a single drug transaction can provide probable cause.”[26] The case cited for that proposition in Boone was State v. Linda Kay Batts, an unpublished decision of the Court of Criminal Appeals from 2007.[27] However, a recent Court of Criminal Appeals opinion, State v. Michael A. Talley, held that such an interpretation of Batts is too broad and to the extent that Batts “is interpreted to imply that all that is required to establish probable cause to search a residence is ‘a single drug transaction,’ it should be overruled.”[28] The Talley panel concluded that Batts, and the cases cited in Batts, dealt with a different issue: whether the personal observation of a police officer of a single controlled purchase can cure deficiencies in a confidential informant’s veracity and basis of knowledge.[29] While a single drug transaction can cure deficiencies in a confidential informant’s veracity and basis of knowledge, the Talley panel rejected the notion that any “single drug transaction, no matter the circumstances, can always provide probable cause to justify issuance of a search warrant.”[30]

As a published opinion, Archibald is controlling authority in Tennessee state courts until it is reversed or modified by a court of competent jurisdiction.[31] Given that and the Talley decision’s holding that prior Court of Criminal Appeals decisions stating that “a single drug transaction can provide probable cause” are too broad and should be overruled, there is a clear conflict between the Court of Criminal Appeals and the Sixth Circuit Court of Appeals, and by extension the federal district courts in Tennessee, as to whether a single controlled purchase of drugs, by itself, will constitute sufficient probable cause to issue a search warrant. With respect to the two courts’ differing interpretations of what constitutes probable cause under the Fourth Amendment, the Court of Criminal Appeals is “not bound by the decisions of the federal circuit courts but only by decisions of the United States and Tennessee Supreme Courts.”[32]

Even if the United States Supreme Court were to agree with the Sixth Circuit’s interpretation, that would not necessarily end the split of authority. Both Archibald and Hall, while not explicitly basing their holdings on state constitutional grounds, refer to the Fourth Amendment and article I, section 7 of the Tennessee Constitution.[33] While article I, section 7 “‘is identical in intent and purpose with the Fourth Amendment,’” our Supreme Court has recognized in the past that it “may afford citizens of Tennessee even greater protection” than the Fourth Amendment.[34] A reverse federalism approach would maintain the Archibald holding should the United States Supreme Court ever embrace the Sixth Circuit’s more narrow interpretation. Until the United States and Tennessee Supreme Courts weigh in on this issue, we will continue to have the possibility for situations like Archibald’s, where evidence against a defendant can be found inadmissible in Tennessee state courts but at the same time be admissible in federal courts located in this state. 

Notes

  1. 334 S.W.3d 212 (Tenn. Crim. App. 2010).
  2. Id. at 213-14.
  3. Id.
  4. Id. at 213, 215.
  5. Id. at 215-16.
  6. Id. at 215.
  7. Id.
  8. Id.
  9. Id. at 215-16. The opinion leaves what constitutes enough time for “a one-time seller to leave the apartment” open to debate, although it is obviously less than 72 hours.
  10. Id. at 216.
  11. United States v. Archibald, 685 F.3d 553, 555-56 n.1 (6th Cir. 2012) (noting that the doctrine of dual sovereignty allows “the federal government and a state [to] separately prosecute a defendant for the same criminal conduct”).
  12. Id. at 558.
  13. See United States v. Green, 572 F. App’x 438, 442 (6th Cir. 2014); United States v. Yates, 501 F. App’x 505, 510 (6th Cir. 2012); United States v. Jackson, 470 F.3d 299, 307-08 (6th Cir. 2006).
  14. Archibald, 685 F.3d at 558.
  15. Id. (quoting United States v. Pinson, 321 F.3d 558, 565 (6th Cir. 2003), cert. denied, 540 U.S. 912 (2003)).
  16. No. M2013-02841-CCA-R3-CD, 2014 WL 4952989 (Tenn. Crim. App. Oct. 3, 2014).
  17. Id. at *4.
  18. Id.
  19. Id.
  20. Id.
  21. Id.
  22. No. M2011-02435-CCA-R3-CD, 2013 WL 2639145 (Tenn. Crim. App. June 10, 2013), perm. app. denied (Tenn. Nov. 13, 2013).
  23. Id. at *8-9.
  24. Id. at *2,* 9.
  25. Id. at *9.
  26. Id. at *6.
  27. No. W2006-0041-CCA-R3-CD, 2007 WL 1015444, at *9 (Tenn. Crim. App. Apr. 4, 2007), perm. app. denied (Tenn. Aug. 13, 2007).
  28. No. M2013-00490-CCA-R3-CD, 2014 WL 274080, at *6 (Tenn. Crim. App. Jan. 24, 2014). Both Talley and Batts were authored by Presiding Judge Thomas T. Woodall.
  29. Id. at *7.
  30. Id.
  31. Tenn. Sup. Ct. R. 4(G)(2).
  32. Owens v. State, 13 S.W.3d 742, 764 (Tenn. Crim. App. 1999). While the prevailing view is that state courts cannot be bound by a lower federal court’s interpretation of federal law, the wisdom of this view has recently come up for debate. See Amanda Frost, “Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?” 68 Vand. L. Rev. 53 (2015).
  33. Archibald, 334 S.W.3d at 214; Hall, 2014 WL 4952989, at *3.
  34. State v. Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 423 S.W.2d 857, 860 (Tenn. 1968)); see also State v. Jacumin, 778 S.W.2d 430 (Tenn. 1989) (adopting the two-pronged Aguilar-Spinelli test for determining whether information from a confidential informant establishes probable cause under article I, section 7); State v. Lakin, 588 S.W.2d 544, 549 (Tenn. 1979) (holding that, under article I, section 7, the open fields doctrine did not apply to “occupied, fenced, private property”).

JASON R. SMITH is a law clerk to Judge D. Kelly Thomas Jr., of the Tennessee Court of Criminal Appeals. Smith is a 2009 graduate of the University of Tennessee College of Law. Prior to clerking for Judge Thomas, he was a research attorney at Butler, Vines & Babb PLLC in Knoxville.