        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
           Remanded from Tennessee Supreme Court November 2, 2012

             STATE OF TENNESSEE v. KENNETH D. HUBANKS

                  Appeal from the Circuit Court for Hardin County
                      No. 8561     C. Creed McGinley, Judge




                 No. W2007-00906-CCA-R3-CD - Filed June 6, 2013


This case presents an appeal to this Court after remand by order of the Tennessee Supreme
Court. The Defendant, Kenneth D. Hubanks, appeals the trial court’s denial of his motion
to suppress evidence obtained during the execution of a search warrant at his residence. The
Defendant entered a plea of nolo contendre to his charges, felony cocaine possesion, felony
marijuana possession, and possession of drug parahernalia but reserved a certified question
of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2). In this appeal, the
Defendant raises the issue of whether the affidavit upon which the search warrant was issued
established probable cause to search his residence. After review, we hold no error occurred.
Accordingly, the judgment of the trial court is affirmed.


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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Lance R. Chism, Memphis, Tennessee (on appeal) and Daniel J. Mickiewicz, Memphis,
Tennessee (on appeal and at plea hearing), for the Appellant, Kenneth D. Hubanks.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Hansel McCadams, District Attorney General; Eddie N. McDaniel, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
                                         I. Facts


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                                A. Procedural Background

       The Defendant pled nolo contendre to possession of intent to sell more than .5 grams
of cocaine, possession with intent to sell more than one-half ounce of marijuana, and
unlawful possession of drug paraphrenalia, reserving a certified question of law. On appeal,
this Court dismissed the appeal because the Defendant failed to include in the judgment the
reservation of a certified question in accordance with Tennessee Rule of Criminal Procedure
37(b)(2)(A). State v. Hubanks, W2007-00906-CCA-R3-CD, 2011 WL 4716285, at *3(Tenn.
Crim. App. Oct. 6, 2011). While the Defendant’s case was pending in this Court, Rule
37(b)(2)(A) was amended to dispense with the requirement that a judgment refer to a
separate document containing the certified question. The Supreme Court granted review of
the Defendant’s appeal to determine whether the amended Rule 37(b)(2)(A) applied
retroactively. Upon concluding that the rule does apply retroactively due to the remedial
nature of Rule 37(b)(2)(A), the Supreme Court remanded the case to this Court for
consideration of the certified question of law on the merits.

                                  B. Factual Background

        This case arises from the execution of a search warrant at the Defendant’s residence
that resulted in the seizure of cocaine, marijuana, and drug paraphernalia. A Hardin County
grand jury indicted the Defendant for possession with intent to sell more than .5 grams of
cocaine, possession with intent to sell more than one-half ounce of marijuana, and unlawful
possession of drug paraphernalia. The Defendant moved to suppress the evidence seized
during the search of his residence, challenging the probable cause basis for the search
warrant. Specifically, the Defendant argued that the reliability and credibility of the
confidential informant was not established in the affidavit. The trial court held a hearing on
the motion to suppress.

        At the suppression hearing, Joe Lambert, a Hardin County Sheriff’s Department
deputy, testified that he obtained a search warrant for the Defendant’s residence from
General Sessions Court Judge Danny Smith. The affidavit in support of the search warrant
stated the following:

       Within the past three days a controlled purchase of marijuana was made from
       [the Defendant]at 259 Rockpile Ln. in Hardin County, TN. A confidential
       source was searched, fitted with a monitoring device, and given money which
       can be identified if found. The source was accompanied to the address with
       an agent from the 24th DTF. The agent observed the source enter the house
       trailer and a few minutes later a male white, identified by the agent as [the

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       Defendant], came outside and went inside a gray utility building and then came
       out carrying a white bag and entered the residence again. The affiant listened
       as the source and [the Defendant] discussed the sale of marijuana. This was
       consistent to what the agent outside was observing. The source returned to the
       agent and turned over a bag of green leafy substance that field tested positive
       for marijuana. The agent and the source met back with the affiant at a secure
       location where the source was searched again and the evidence turned over to
       the affiant by the agent. The source stated that they saw more of the substance
       in the residence.

       Following the testimony, the trial court overruled the Defendant’s motion, finding that
the search warrant was not based on information from the confidential informant but on
“actually what the officer monitored, listened, saw, and it’s based [] directly upon this
officer’s knowledge under a controlled buy situation which provided probable cause for the
issuance of the warrant.”

       After the denial of his motion to suppress, the Defendant entered a plea agreement
with the State. As part of his plea, the Defendant reserved a certified question of law for
appeal to this Court pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal
Procedure. The Defendant’s certified question of law contained in the plea agreement is:

       [W]hether the facts contained in the affidavit of the search warrant issued
       December 30, 2005, in this case, supported probable cause for the issuing of
       the warrant.

       The trial court entered the plea and sentenced the Defendant in accordance with the
plea agreement to eight years for felony cocaine possession, one year for felony marijuana
possession, and eleven months and twenty-nine days for the misdemeanor paraphernalia
conviction. The Defendant’s eight-year sentence was to be suspended after service of 120
days in the county jail and one year to be served on Community Corrections. The
Defendant’s other sentences were suspended.

                                     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. An appeal lies from any judgment 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 or of the court alone, the right

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to appeal a certified question of law that is dispositive of the case. Tenn. R. Crim. P.
37(b)(2)(A),(D); see State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). 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 order reserving the certified question
       that is filed before the notice of appeal is filed contains a statement of
       the certified question of law that the defendant reserved for appellate
       review;

       (ii) the question of law as stated in the judgment or order reserving the
       certified question identifies clearly the scope and limits of the legal
       issue reserved

       (iii) the judgment or order reserving the certified question reflects that
       the certified question was expressly reserved with the consent of the
       state and the trial court; and

       (iv) the judgment or order reserving the certified question reflects that
       the defendant, the state, and the trial court 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 has met these requirements. He pled nolo contendre, and the plea
agreement, signed by the parties and the judge, listed the question that the Defendant
maintains on appeal: “[W]hether the facts contained in the affidavit of the search warrant
issued December 30, 2005, in this case, supported probable cause for the issuing of the
warrant[?]” The plea agreement also stated that the parties and trial court agreed that the
certified question is dispositive of this case.

      We agree that the question included in the plea agreement 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 the search warrant and supporting affidavit failed to
establish probable cause for the search of his residence. Specifically, he contends that the
affidavit failed to sufficiently establish the veracity of the criminal informant that the police
used during the controlled buy. The State responds that the affidavit sufficiently established

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through police corroboration that the informant’s information was reliable. We agree with
the State.

        The standard of review for a trial court’s findings of fact and conclusions of law in
a suppression hearing was established in State v. Odom, 928 S.W.2d 18 (Tenn. 1996). This
standard mandates that “a trial court’s findings of fact in a suppression hearing will be upheld
unless the evidence preponderates otherwise.” Id. at 23. The prevailing party in the trial
court is “entitled to the strongest legitimate view of the evidence adduced at the suppression
hearing as well as all reasonable and legitimate inferences that may be drawn from that
evidence.” Id. Furthermore, “[q]uestions of credibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the
trial judge as the trier of fact.” Id. However, this Court reviews the trial court’s application
of the law to the facts de novo, without any deference to the determinations of the trial court.
State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

       The trial court denied the Defendant’s motion to suppress, stating:

       [T]his is not a strict confidential informant [case]. This is actually what the
       officer monitored, listened, saw, and it’s based directly upon this officer’s
       knowledge under a controlled buy situation which provided the probable cause
       for the issuance of the warrant.

       An affidavit establishing probable cause is an indispensable prerequisite to the
issuance of a search warrant. See, e.g., T.C.A. § 40-6-103 (2006); Tenn. R. Crim. P. 41(c);
State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998); State v. Moon, 841 S.W.2d 336, 338
(Tenn. Crim. App. 1992). Such probable cause “must appear in the affidavit [itself] and
judicial review of the existence of probable cause will not include looking to other evidence
provided to or known by the issuing magistrate or possessed by the affiant.” Moon, 841
S.W.2d at 338; see also Henning, 975 S.W.2d at 295. To sufficiently make a showing of
probable cause, an affidavit “must set forth facts from which a reasonable conclusion might
be drawn that the evidence is in the place to be searched.” State v. Smith, 868 S.W.2d 561,
572 (Tenn. 1993). A decision regarding the existence of probable cause requires that the
affidavit contain “more than mere conclusory allegations by the affiant.” State v. Stevens,
989 S.W.2d 290, 293 (Tenn.1999); see also Moon, 841 S.W.2d at 338.

        Furthermore, when “probable cause for a search is based upon information from a
confidential informant, there must be a showing in the affidavit of both (1) the informant’s
basis of knowledge and (2) his or her veracity.” State v. Powell, 53 S.W.3d 258, 262 (Tenn.
Crim. App. 2000); see also State v. Jacumin, 778 S.W.2d 430, 432, 435–36 (Tenn. 1989)
(utilizing the standard set out in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.

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Ed .2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964)). To sufficiently make such showings, the affidavit must include facts permitting “the
magistrate to determine: (1) whether the informant had a basis for his information that a
certain person had been, was, or would be involved in criminal conduct or that evidence of
crime would be found at a certain place” and (2) whether the informant is inherently credible
or “the reliability of his information on the particular occasion.” Moon, 841 S.W.2d at 338.
Again, the courts have stressed that conclusory statements absent supportive detail will not
suffice to establish these requirements. See, e.g ., id. at 339. However, “independent police
corroboration” may compensate for such deficiencies. See Jacumin, 778 S.W.2d at 436;
Moon, 841 S.W.2d at 340.

       We agree with the trial court that the affidavit submitted in support of the issuance of
the search warrant in this case is largely based on the police officer’s observations. In Moon,
this Court noted:

       the reliability of the investigating officer/affiant may be presumed by a
       magistrate, as may be the reliability of other investigating officers upon whom
       the affiant relies. Thus, no special showing of reliability is necessary when the
       information comes from such an officer.

Moon, 841 S.W.2d at 338 n.1. The affidavit in this case contains the police officer’s
observations, both visual and auditory, of the drug sale. The affidavit does state that the
confidential informant observed additional marijuana in the residence which supports
evidence of ongoing criminal activity. We note, however, that police also witnessed the
Defendant leave his residence, go to a utility shed outside the residence, retrieve a white bag,
and then return inside his home to complete the sale. This observation by the police
corroborates the confidential informant’s statement regarding ongoing criminal activity to
establish probable cause.

       We conclude that the magistrate issuing the search warrant was provided with ample
information in the affidavit to make a practical, commonsense decision that there was a fair
probability that evidence of a crime would be found at 259 Rockpile Ln. on December 30,
2005, and thus that the issuing magistrate in this case had a substantial basis for concluding
that probable cause existed for the issuance of the search warrant.

                                       III. Conclusion

        After a thorough review of the evidence and relevant authorities, we conclude that the
trial court properly denied the Defendant’s motion to suppress. Accordingly, the judgments
of the trial court are affirmed.

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    _________________________________
    ROBERT W. WEDEMEYER, JUDGE




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