        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 July 25, 2012 Session

            STATE OF TENNESSEE v. MARK JOSEPH GRAVES

            Direct Appeal from the Criminal Court for Hamblen County
                    No. 10 CR 069    John F. Dugger, Jr., Judge




                No. E2011-02471-CCA-R3-CD - Filed October 4, 2012


The Defendant, Mark Joseph Graves, entered a best interest plea to attempted sexual
exploitation of a minor, in exchange for a two-year and one-day sentence, as a Range I
standard offender, at thirty percent. As part of the Defendant’s plea agreement, he reserved
a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to
whether an affidavit in support of a search warrant must allege when the illegal activity
occurred. After reviewing the record and applicable law, we conclude that the Defendant is
not entitled to relief. Accordingly, we affirm the Defendant’s conviction.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and R OGER A. P AGE, JJ., joined.

Troy L. Bowlin, II, Morristown, Tennessee, for the appellant, Mark Joseph Graves.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; C. Berkeley Bell, District Attorney General; and Kimberly Morrison, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                I. Background and Facts

       This case arises from the Defendant’s possession of child pornographic materials on
his personal computer. On July 1, 2008, Detective Sergeant Vicki Arnold submitted an


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affidavit in support of a warrant to search the Defendant’s residence and computers for
images and video of child pornography as well as for evidence that the Defendant solicited
a minor. The affidavit contained the following basis to support the request:

      My basis for believing that the “computer graphical images depicting minors
      engaged in sexual activity” and communications involved in the solicitation
      of a minor in violation of T.C.A. § 39-17-1003 described herein are in the
      above stated location and that these records are evidence of said violation of
      criminal law are as follows:

      Det. Doug Shanks with the Sevierville Police Department was conducting a
      child exploitation investigation in an under-cover capacity using the Internet.

      While conducting a pier precision (file sharing) investigation[,] [h]e found
      known child victim videos being shared from a computer with the I.P. (internet
      protocol) address of 68.118.84.218.

      Det. Shanks performed a WHOIS lookup of the I.P. address and confirmed
      that the address belonged to Charter Communications.

      Det. Shanks faxed a response to your affiant with the subscriber information
      associated with the I.P. address 68.118.84.218 and Charter was able to identify
      the subscriber as Randall Graves, 1974 Dove Street, Morristown[,] TN 37814.
      Your affiant did a visual inspect[ion] of the address and did verify that the
      address does exist . . . .

      Your affiant met with Assistant District Attorney Victor Vaughn on 7-1-08 to
      discuss the details of this case.

      Your affiant states that a personal computer is a natural repository for
      information and collections, and organization of materials for personal,
      business, and financial use. Your affiant states that the varying unlimited uses
      of a personal computer make it also probable that evidence of dominion,
      ownership and control of the personal computer and files thereon may be
      found in varying electronic forms.

      Your affiant states that computer technology can be mobile in the form of
      laptop computers, removable diskettes, and via remote general access.
      However, your affiant’s knowledge outlined above makes it more probable
      than not that the collector will keep his/her collection within the confines of

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        his/her personal residence, and with the collector of computer graphical images
        of child pornography, it is more likely than not that the collection will be found
        in physical forms within the confines of the residence, and on some or all of
        the magnetic storage media in the residence.

        Your affiant states that even if said person has “deleted” files, or placed them
        on portable disks, it is more likely than not, based upon my experience, and the
        training of our forensic computer experts, that the files will remain on the
        computer’s internal storage device or on removable storage devices for a
        period of time until the subject performs specific operations to delete these
        files (such as a utility program that specializes in the deletion of files).

On the same day, July 1, 2008, based on the information contained in the affidavit, the search
warrant was issued, and police officers executed the search warrant.

        On March 1, 2010, based on the evidence obtained from the search of the Defendant’s
residence, a Hamblen County grand jury indicted the Defendant for sexual exploitation of
a minor, a Class C Felony, by knowingly possessing thirty-eight images and fifty-three videos
that included a minor engaged in sexual activity.1

        On July 8, 2011, the trial court held a hearing on the Defendant’s motion to suppress
the evidence obtained pursuant to the execution of the search warrant. The Defendant argued
that the affidavit in support of the search warrant was “based largely upon hearsay
information.” The Defendant continued that, because “the affidavit in this case fail[ed] to
establish the reliability of the hearsay information,” the affidavit provided “an insufficient
basis upon which to establish probable cause for the issuance of the search warrant.” The
Defendant also claimed that the affidavit was “illegal” because it did not state “when the
alleged illegal activity took place.” The trial court considered the motion, noting that it had
“to look at the four corners of the affidavit to determine whether there [was] probable cause
to believe that the person or item [was] subject to a seizure or search . . . at a particular place
and at a particular time.” Regarding the hearsay argument, the trial court found that, because
a detective with the Sevierville Police Department conducted the investigation and gave the
information to Detective Arnold for further proceedings, “that alone can establish his
reliability, and it shows his basis of knowledge that he was doing the investigation and found
these videos on a certain address and gave . . . that information to Detective Arnold.”

        Regarding the claim that an affidavit in support of a search warrant is required to

        1
         The State later amended that indictment to correct the number of images and videos to thirty-
seven images and forty videos.

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indicate a date on which the alleged activity took place, the Defendant offered, at the
suppression hearing, the following cases to support his argument: Welchance v. State, 173
Tenn. 26 (Tenn. 1938), which the Defendant described as “a whiskey case . . . [in which] the
justices point out . . . it is essential that the date on which the alleged offense was committed
be stated in the affidavit . . . in order that the magistrate may determine whether probable
cause exist[s] with the issuance of a search warrant;” State v. McCormick, 584 S.W.2d 821
(Tenn. Crim. App. 1979), which the Defendant summarized as stating that “so long as the
statement of the time is certainly and definitely made that is all the law does and could
require;” and State v. Longstreet, 619 S.W.2d 97 (Tenn. 1981), which the Defendant argued
that “it points out, point blank: it is necessary that the affidavit establish a date during which
the facts in question occurred so the magistrate will know whether the facts are too stale to
establish probable cause.” The Defendant concluded by stating that “[w]ithout a date of the
alleged criminal activity[,] there is no way a magistrate or your Honor or a judge can
determine if the information is stale.” The State countered that trial courts have previously
found that there are “no cases holding a search warrant invalid on the ground that the
affidavit procuring the warrant did not specify the day, month[,] and year of the observation
of an alleged illegal activity.”

       In making its decision, the trial court found that the affidavit provided a time period
during which the illegal activity occurred, noting that the affidavit showed that Detective
Shanks “issued a subpoena on March 31, ‘08, at 1:57.” Because the affidavit set forth a time
period of the detective’s investigation, the trial court ruled the following:

       [I]t’s necessary that an affidavit in support of a search warrant establish a time
       period which illegal activity occurred so as to make it appear to the magistrate,
       . . . that illegal occurrences were not too remote to establish probable cause at
       the time [of] the application of the search warrant. However, under State
       versus McCormick, there is no requirement that a particular date be specified.

The trial court concluded by finding that, under the four corners of the affidavit, the
magistrate judge had probable cause to issue the search warrant. As a result, the trial court
denied the Defendant’s motion to suppress.

       On November 4, 2011, the Defendant entered a best interest guilty plea to attempted
sexual exploitation of a minor, a Class D Felony, for a sentence of two years and one day in
incarceration at thirty percent, as a Range I standard offender. After questioning the
Defendant, the trial court accepted the Defendant’s guilty plea, sentenced him according to
the agreed-upon terms of the plea agreement, and entered the judgment. The Defendant also
reserved a certified question of law that both parties agreed was dispositive of the case.



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       In an addendum to the judgment against him, pursuant to Tennessee Rule of Criminal
Procedure 37(b)(2), the Defendant reserved the following certified question: “Whether an
affidavit in support of a search warrant must contain information relating to when the alleged
underlying criminal activity occurred so as to establish probable cause and provide a valid
basis for the issuance of a search warrant?”

                                          II. Analysis

                                A. Certified Question of Law

        Because this appeal comes before us as a certified question of law, pursuant to Rule
37(b) of the Tennessee Rules of Criminal Procedure, we must first determine whether the
question presented is dispositive. The question is dispositive “when the appellate court ‘must
either affirm the judgment [of conviction] or reverse and dismiss [the charges].’” State v.
Dailey, 235 S.W.3d 131, 134 (Tenn. 2007) (alterations in original) (quoting State v. Walton,
41 S.W.3d 75, 96 (Tenn. 2001); State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App.
1984)). An issue is never dispositive when this Court may exercise the option to reverse and
remand. Wilkes, 684 S.W.2d at 667. This Court “‘is not bound by the determination and
agreement of the trial court, a defendant, and the State that a certified question of law is
dispositive of the case.’” Dailey, 235 S.W.3d at 134-35 (quoting State v. Thompson, 131
S.W.3d 923, 925 (Tenn. Crim. App. 2003)). This Court must make an independent
determination that the certified question is dispositive. Id. at 135 (citing State v. Preston, 759
S.W.2d 647, 651 (Tenn. 1988)).

        An appeal lies from any judgement of conviction upon a plea of guilty if the defendant
entered into a plea agreement under Rule 11(a)(3) but explicitly reserved with the consent
of the State and the court the right to appeal a certified question of law that is dispositive of
the case. Tenn. R. Crim. P. 37(b)(2); see Preston, 759 S.W.2d at 650. Further, the following
are prerequisites for an appellate court’s consideration of the merits of a question of law
certified pursuant to Rule 37(b)(2):

       (i) The judgment of conviction, or other document to which such judgment
       refers that is filed before the notice of appeal, contains a statement of the
       certified question of law reserved by the defendant for appellate review;

       (ii) The question of law is stated in the judgment or document so as to identify
       clearly the scope and limits of the legal issue reserved;

       (iii) The judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial judge; and

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        (iv) The judgment or document reflects that the defendant, the state, and the
        trial judge are of the opinion that the certified question is dispositive of the
        case . . . .

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

       The Defendant’s issue on appeal meets these requirements. He pled guilty, the
judgment form referenced the attached certified question, and the addendum to the judgment
form listed the question that the Defendant maintains on appeal: “Whether an affidavit in
support of a search warrant must contain information relating to when the alleged underlying
criminal activity occurred so as to establish probable cause and provide a valid basis for the
issuance of a search warrant?”

       We agree that the question included in the addendum attached to the judgment form
against the Defendant is dispositive of the case. Thus, we conclude that the issue is properly
before this Court.

                        B. Affidavit in Support of Search Warrant

        The Defendant contends that, according to Rule 41(c) of the Tennessee Rules of
Criminal Procedure and McCormick, 584 S.W.2d at 821, a sworn affidavit in support of a
search warrant must contain “a time element alleging when the illegal activity occurred to
allow the magistrate to determine the existence of probable cause.” The State argues that
“[t]his Court has repeatedly held that there is no requirement that an affidavit provide a
specific calendar date.” The State continues that, because the affidavit provided a time period
during which the illegal activity occurred, the trial court properly denied the Defendant’s
motion to suppress. We agree with the State.

       We begin our analysis with review of the Fourth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, which
provides as follows:

       The right of the people to be secure in their persons, houses, papers, and effects,
       against unreasonable searches and seizures, will not be violated, and no
       warrants will issue, but upon probable cause, supported by oath or affirmation,
       and particularly describing the place to be searched, and the persons or things
       to be seized.

U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655 (1961). Similarly, article I,
section 7 of the Tennessee Constitution provides:

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       [P]eople shall be secure in their persons, houses, papers and possessions, from
       unreasonable searches and seizures; and that general warrants, whereby an
       officer may be commanded to search suspected places, without evidence of the
       fact committed, or to seize any person or persons not named, whose offenses
       are not particularly described and supported by evidence, are dangerous to
       liberty and not to be granted.

Tenn. Const. art. I, § 7.

       “[A] search warrant shall be issued only on the basis of an affidavit, sworn before a
‘neutral and detached’ magistrate, which establishes probable cause of its issuance.” State
v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). To establish probable cause to issue a search
warrant, an affidavit must supply reasonable grounds for suspicion that an illegal act is
occurring. Id. Thus, the need for the magistrate to make a neutral and detached decision
regarding the existence of probable cause requires that the affidavit contain more than mere
conclusory allegations by the affiant. State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App.
1992).

        An affidavit must show a nexus between the criminal activity, the place to be searched,
and the items to be seized in order to give a magistrate probable cause to issue a warrant.
State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); State v. Smith, 868 S.W.2d 561, 572 (Tenn.
1993). When the affidavit contains no direct evidence of such a nexus, “we must . . .
determine whether it was reasonable for the magistrate to infer that the item of contraband
listed in the affidavit would be located” in the place to be searched. State v. Saine, 297
S.W.3d 199, 206 (Tenn. 2009).

         The Tennessee Supreme Court has stated that “Tennessee law is clear that in
determining whether or not probable cause supported issuance of a search warrant only the
information contained within the four corners of the affidavit may be considered.” State v.
Keith, 978 S.W.2d 861, 870 (Tenn. 1998) (citing State v. Jacumin, 778 S.W.2d 430, 432
(Tenn. 1989)). This language refers to a trial court’s determination of whether the warrant
itself is valid.

        Further, the Tennessee Supreme Court previously has recognized that a written and
sworn affidavit containing allegations from which the magistrate can determine whether
probable cause exists is an indispensable prerequisite to the issuance of a search warrant in
this State. Jacumin, 778 S.W.2d at 432; see also State ex rel. Blackburn v. Fox, 292 S.W.2d
21, 23 (Tenn.1956). This Court, however, has found no constitutional or statutory rule stating
that an indispensable prerequisite to a valid affidavit is that the affidavit must contain a date
or “time element.” An affidavit, historically, has been defined in case law as “a statement in

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writing, signed, and made upon oath before an authorized magistrate.” Watt v. Carnes, 51
Tenn. 532, 534 (1871). Additionally, the General Assembly has expressly defined the
components to be included in an affidavit: “A search warrant can only be issued on probable
cause, supported by affidavit, naming or describing the person, and particularly describing the
property, and the place to be searched.” T.C.A. § 40-6-103 (2006). Also, Rule 41 of the
Tennessee Rules of Criminal Procedure does not state that a date or time element must be
included in an affidavit in support of a search warrant; rather, it only specifies that “[a]
warrant shall issue only on an affidavit or affidavits sworn to before the magistrate and
establishing the grounds of issuing the warrant.” Nothing in those definitions or explanations
suggest that a specific date is an essential component of an affidavit.

        The Defendant in the present case argues that an affidavit in support of a search
warrant must contain a “time element alleging when the illegal activity occurred,” citing State
v. McCormick, 584 S.W.2d 821 (Tenn. Crim. App. 1979), in support of the argument. The
Defendant’s reliance on McCormick is misplaced. In McCormick, the defendant filed a
motion to suppress, arguing that the search warrant used to seize illegal drugs from him was
unconstitutional because the affidavit in support of the warrant “did not give a specific date
on which illegal activity was observed.” McCormick, 584 S.W.2d at 822. The affidavit stated
that an informant had seen the defendant with marijuana “in the past 72 hours.” Id. The trial
court granted the motion to suppress, finding that “the Constitution required a calendar date
(a specified day, month, and year) to establish the time the illegal activity was observed.” Id.
On appeal, however, this Court held that the trial court “misconstrued” the language of the
case law that it used to support the decision. Id. (citing Owens v. State, 399 S.W.2d 507
(1965); Welchance v. State, 114 S.W.2d 781 (1938)). This Court further stated that the trial
court took the holdings of the earlier cases out of context. Id. In Welchance, the Tennessee
Supreme Court stated that “[i]t is essential that the Date on which the alleged offense was
committed be stated in the affidavit in order that the magistrate may determine whether
probable cause existed for the issuance of the warrant.” Id. The Owens court cited
Welchance for the same proposition. Id.

         In McCormick, this Court found that, rather than establishing a requirement that an
affidavit contain a specific date of the illegal activity, the language of the Tennessee Supreme
Court, in those earlier cases, “meant that facts must be stated in the affidavit from which the
Magistrate could conclude that the defendant was at the time of the issuance of the warrant
still in the unlawful possession” of the illegal substance. Id. Therefore, in reversing the trial
court’s decision, this Court held that “[t]here are no cases holding a search warrant invalid on
the ground that the affidavit procuring the warrant does not specify the day, month, and year
of the observation of alleged illegal activity; the holdings are to the contrary.” Id. This Court
continued:



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       It is necessary that the affidavit establish a time during which the illegal activity
       occurred so as to make it appear to the magistrate that the illegal occurrence is
       not too remote to establish probable cause at the time of the application for a
       search warrant. However, there is no rigid rule or specific language required
       to establish the time element.


Id. at 824. Further, the Tennessee Supreme Court, in State v. Longstreet, interpreted the
Welchance decision to mean that the main issue is not whether a date was included in the
affidavit, but whether the information contained in the affidavit was stale:

                It is necessary that the affidavit establish a date during which the facts
       in question occurred so the magistrate will know whether the facts are too stale
       to establish probable cause at the time the search warrant is issued. Welchance
       v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938). The date requirement is not a
       literal one, but there must be facts stated from which the issuing magistrate can
       conclude that the facts are sufficiently recent to support a finding of probable
       cause. State v. McCormick, 584 S.W.2d 821, 824 (Tenn. Cr. App. 1979).

619 S.W.2d 97, 99 (Tenn. 1981) (emphasis added).

       Therefore, in this case, we conclude that the McCormick decision does not support the
Defendant’s argument. Additionally, to the extent the Defendant relies upon Welchance and
the cases that relied upon it, we conclude that the Tennessee Supreme Court’s analysis of
Welchance in Longstreet clarifies that a specific date is not necessarily required in the
affidavit, but the proper inquiry is whether the facts contained in the affidavit were stale at the
time the affiant applied for a search warrant. We note that the certified question in this case
does not encompass the issue of whether the information contained in the affidavit was stale;
therefore, any argument to that effect is not properly before this Court for review.

        In summary, the affidavit submitted in support of the search warrant in this case
described the Defendant, the residence to be searched, the computers and other electronic
devices believed to contain illegal material, and provided a time period during which the
illegal activity occurred. We note that the trial court found that the affidavit specified that
Detective Shanks “issued a subpoena on March 31, ‘08, at 1:57,” which established the time
period of the illegal activity. The trial court, in examining the four corners of the affidavit,
properly found that the affidavit provided probable cause to issue the search warrant.
Therefore, we conclude that the trial court did not err in denying the Defendant’s motion to
suppress, and we affirm the Defendant’s conviction. The Defendant is not entitled to relief.



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                                     III. Conclusion

       After a thorough review of the evidence and relevant authorities, we affirm the trial
court’s judgment.




                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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