Anderson v. State

512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293
CourtCourt of Criminal Appeals of Tennessee
DecidedFebruary 22, 1974
StatusPublished
Cited by12 cases

This text of 512 S.W.2d 665 (Anderson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State, 512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293 (Tenn. Ct. App. 1974).

Opinion

OPINION

O’BRIEN, Judge.

Cecil Curtis Anderson was indicted for possession of heroin for resale in the Criminal Court of Knox County. A jury verdict of guilty was returned against him with the penalty fixed at eight (8) years. The trial court entered judgment of imprisonment in the State Penitentiary for a period of not less than five (S) years nor more than eight (8) years. Motions for new trial was overruled. Appeal was prayed and granted and the matter is properly before us for review.

By the first assignment of error it is charged that the trial court erroneously admitted evidence seized in the defendant’s motel room under color of a search warrant because (a) two (2) different returns on the search warrant were made to the issuing court; and (b) that the search warrant is invalid upon its face.

We consider first the validity of the search warrant, which is attacked on the premise that the affidavit to the search warrant was insufficient for its issue by the magistrate because it was made by a police officer on information received from a confidential informant, and failed tó show that certain specified information with regard to the informer was supplied to the magistrate. The brief for defendant includes many suggested requirements which it is contended should be included in the affidavit to the search warrant as the basis for its issue. Several citations of authority are made which do not support these contentions. It is not necessary to recite here each of those requirements listed. The law on this subject, gauged by Federal standards, has been recognized in this State for many years. It is “not necessary to link up particular facts with particular sources of information, or any source of information for that matter, so long as it is stated to be a reliable source or the facts are from personal knowledge of the affiant.” Owens v. State, 217 Tenn. 544, 399 S.W.2d 507, citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed. 2d 697; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. The magistrate determines the verity of the facts in an affidavit before he issues the warrant, and in so doing performs a judicial act which is not subject to review unless there [668]*668are no material facts upon which he bases this discretion. Owens v. State, supra; O’Brien v. State, 205 Tenn. 405, 326 S.W. 2d 759; Solomon v. State, 203 Tenn. 583, 315 S.W.2d 99; Dishman v. State, 3 Tenn.Cr.App. 725, 460 S.W.2d 855. We have examined the search warrant, and the accompanying affidavit, and find the warrant is based upon facts in the affidavit sufficient to support the magistrate’s finding of probable cause. Hodges v. State, Tenn.Cr.App., 491 S.W.2d 624.

We must also overrule that part of the assignment applying itself to the admission of evidence seized in the defendant’s motel room under cover of the search warrant. In the first instance, although defendant admits he had rented and resided in the motel room, he denies interest in the articles seized in the search. This would waive any valid objection to evidence obtained by the search. Bowman v. State, 211 Tenn. 38, 362 S.W.2d 255. Moreover, the return of an officer upon a search warrant is a ministerial function and does not affect the validity of the warrant and its execution by the officer. Bowman v. State, supra; State v. Calvert, 219 Tenn. 534, 410 S.W.2d 907. Defendant argues he was prejudiced because the jury saw “spoons and needles” on the return, and because the trial court allowed the question of the possession of heroin for resale to go to the jury for this reason. There is other competent testimony in the record concerning the narcotics paraphernalia which was in plain view in the motel bathroom. Furthermore, the defendant himself admitted seeing the narcotics paraphernalia simultaneously with the police raid, but states it was scattered about the room by his companions. Our Supreme Court quite recently, (Brewer v. State, Tenn., 501 S.W.2d 280) has reaffirmed those cases holding that statements a defendant makes on direct examination may qualify as an exception to the exclusionary rule and open the door to otherwise inadmissible evidence. We hold that this evidence was not erroneously admitted and, if it were, defendant has waived the provisions of the exclusionary rule by his testimony.

The second assignment contends the trial court erred by admitting into evidence four bags of substance alleged to be heroin, but not tested or proven to be heroin, and the facts and circumstances of their seizure, and disposition. No authority is offered to sustain this assignment.

Seven packets of white substance identical in size and quantity were contained in a small metal box seized by the police. Three of these packets were analyzed in the State laboratory and determined to contain heroin. Two packets were delivered to the University of Tennessee Hospital and subsequently returned. All seven packets were introduced into evidence. After objection by defense counsel to the admission of the four packets upon which no analysis had been made, or, introduced into evidence, the trial court ruled that the similar packaging, and arrangement, and all the circumstances surrounding their possession and seizure were matters to be properly considered by the jury.

A trial judge has wide discretion-in regard to the introduction of evidence, and admission or rejection of evidence is not ground for reversal unless it shall affirmatively appear that the alleged error effected the result of the trial. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173. We do not find any abuse of the trial court’s discretion in the admission of all of the evidence seized in the defendant’s motel room.

The third assignment states that the trial court erred in admitting evidence that two (2) black males were observed coming to the motel, immediately prior to the raid.

The affidavit ■ to the search warrant which defendant has urged was insufficient, alleges, inter alia, that the informant had seen several heroin users going to and from the apartment. The testimony of a police officer was that just prior to the [669]*669raid two (2) persons were observed driving up to the motel. One of them known to be an addict. Objection was made and sustained on the grounds that this evidence was irrelevant and immaterial. Defendant was charged in this case with possession of heroin for resale. Under the indictment and evidence there is no doubt that this evidence was admissible, even though the objection to its admission was sustained. We do not find error and the assignment is overruled.

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Bluebook (online)
512 S.W.2d 665, 1974 Tenn. Crim. App. LEXIS 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-tenncrimapp-1974.