State v. Lewis

641 S.W.2d 517, 1982 Tenn. Crim. App. LEXIS 464
CourtCourt of Criminal Appeals of Tennessee
DecidedSeptember 9, 1982
StatusPublished
Cited by12 cases

This text of 641 S.W.2d 517 (State v. Lewis) 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
State v. Lewis, 641 S.W.2d 517, 1982 Tenn. Crim. App. LEXIS 464 (Tenn. Ct. App. 1982).

Opinion

OPINION

TATUM, Judge.

The defendant, Linda Lewis, in a three-count indictment, was charged with possessing three separate schedules of controlled substances with intent to sell. In another indictment, she was charged with grand larceny, receiving, and concealing a quantity of stolen drugs and several specified stolen items of hospital and medical equipment and supplies, the property of McKenzie Memorial Hospital. The jury found the defendant guilty of the simple possession of the controlled substances mentioned in the first indictment and found her guilty of petit larceny under the second indictment. Punishment was fixed at $1,000 fine and a jail sentence of 11 months and 29 days for each of the three counts of possessing controlled substances and punishment was fixed in the petit larceny case at not less than 1 nor more than 2 years in the State penitentiary. The trial court ordered that the jail sentences and the penitentiary sentence all run concurrently. After considering the defendant’s nine issues presented for review, we conclude that the judgments below must be affirmed.

The defendant does not question the sufficiency of the evidence. However, we will briefly discuss the facts established to better focus the several issues presented. The defendant was employed as a licensed practical nurse at the McKenzie Hospital in Carroll County. She was assigned to the medicine room of the hospital with the duties of preparing and administering medicine to patients. On June 17,1980, someone forcibly entered the hospital pharmacy and took a large quantity of drugs, equipment and supplies. The burglar alarm had in some manner been temporarily rendered inoperative.

On June 19, 1980, armed with a search warrant, officers conducted a search of defendant’s home and found several items of drugs and property which were identified as having been stolen from the hospital pharmacy. The indictments were returned based upon the evidence disclosed by the search.

The defendant attacks the sufficiency of the search warrant. The warrant was issued upon the affidavit of a police officer, detailing information that the police officer had obtained from an unnamed informant. The defendant argues that the affidavit does not allege such facts as to enable the [519]*519officer who issued the warrant to conclude that the informant was reliable. The affidavit establishes that the informant was an adult citizen of Carroll County with whom the officer was well acquainted. The affidavit further states that the officer had “obtained information from said informant on other occasions that proved to be accurate and reliable.” These allegations are sufficient to justify a conclusion by the issuing officer that the informant was reliable. State v. Bush, 626 S.W.2d 470 (Tenn.Cr.App.1981); Woods v. State, 552 S.W.2d 782 (Tenn.Cr.App.1977).

The defendant also argues that the facts alleged in the affidavit are insufficient to establish probable cause to believe that she possessed illicit drugs or stolen property. The affidavit states:

“within the past three days, (he/she) did see Linda Lewis with a quantity of drugs which were Scheduled, Controlled drugs, that appeared to be the same as from the said burglary at the McKenzie Memorial Pharmacy. Further that Linda Lewis had stated to the informant that she was well stocked with drugs and didn’t have to worry about getting them for a while. Further that Linda Lewis was working at the Hospital on the night of said burglary, at the Pharmacy, and entrance was made with a key, and said alarm was turned off with a key before entrance was made. Also that Linda Lewis was absent from the immediate area for a period of time on night of burglary.”

The defendant says that the affidavit must show the specific type of drug possessed to enable him to make a determination of probable cause. In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Supreme Court held that the personal observations of the informant satisfy the second test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), if they guarantee that the informant is relying on “something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” See also, United States v. Acosta, 501 F.2d 1330 (5th Cir.1974). In United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the Supreme Court said:

“... affidavits for search warrants ... must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under commonlaw pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”

We think that the rationale of Lea v. State, 181 Tenn. 378, 181 S.W.2d 351 (1944) is applicable here. In that case, the affidavit stated that the defendants were “in unlawful possession and control of a quantity of intoxicating liquors in violation of law.” The affidavit did not aver the particular type of intoxicating liquors and did not negate that the liquors were of the kind that could be lawfully possessed, such as beer, ale or wine. The Supreme Court held that the description given was sufficient to establish probable cause; that is, “A reasonable ground of suspicion supported by circumstances.”

In the same context, the word “controlled drugs” as used in the affidavit conveys the meaning that the drugs possessed are of a dangerous and unlawful nature. Common usage of this phrase excludes the meaning that the drugs were of an innocent nature such as aspirin.

The author of Search and Seizure by Wayne R. LaFave, Vol. 1, § 3.3, pages 539-40, said:

“... Thus, an informant’s allegation that he saw the defendant in possession of counterfeit money is deemed sufficient without any explanation as to how it was determined that the money was counterfeit in character, and an assertion by an informant that he saw illegal drugs or the like at a certain place is regularly [520]*520accepted without any showing as to how the informant was able to identify the substance. Similarly, courts — including the United States Supreme Court — seem to think it is enough that an informant says he ‘saw’ a sale of narcotics, even without any explanation as to how it was known that a sale was occurring or that the object being sold was in fact narcotics.”

The following cases support Mr. LaFave: McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); United States v. Acosta, supra; United States v. Carter,

Related

State v. Robinson
Court of Criminal Appeals of Tennessee, 2010
Bilbrey v. State
Court of Criminal Appeals of Tennessee, 2010
State v. Frank Michael Vukelich
Court of Criminal Appeals of Tennessee, 2000
State v. William Bucy
Court of Criminal Appeals of Tennessee, 1998
State v. Dykes
803 S.W.2d 250 (Court of Criminal Appeals of Tennessee, 1990)
State v. Smith
735 S.W.2d 859 (Court of Criminal Appeals of Tennessee, 1987)
State v. Jenkins
733 S.W.2d 528 (Court of Criminal Appeals of Tennessee, 1987)
State v. Moffett
729 S.W.2d 679 (Court of Criminal Appeals of Tennessee, 1986)
State v. Dowell
705 S.W.2d 138 (Court of Criminal Appeals of Tennessee, 1985)
State v. Baron
659 S.W.2d 811 (Court of Criminal Appeals of Tennessee, 1983)

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Bluebook (online)
641 S.W.2d 517, 1982 Tenn. Crim. App. LEXIS 464, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lewis-tenncrimapp-1982.