        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE              FILED
                         JANUARY SESSION, 1997              July 11, 1997

                                                      Cecil W. Crowson
STATE OF TENNESSEE,              )                  Appellate Court Clerk
                                     C.C.A. NO. 01C01-9603-CC-00098
                                 )
      Appellee,                  )
                                 )
                                 )   WILSON COUNTY
VS.                              )
                                 )   HON. J. O. BOND
RANDALL LUNSFORD,                )   JUDGE
                                 )
      Appellant.                 )   (Certified Question)


               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF W ILSON COUNTY


FOR THE APPELLANT:                   FOR THE APPELLEE:

B.F. “JACK” LOWERY                   JOHN KNOX W ALKUP
Lowery Building, Public Square       Attorney General and Reporter
Lebanon, TN 37087
                                     LISA A. NAYLOR
PETER J. STRIANSE                    Assistant Attorney General
21st Floor, First American Center    450 James Robertson Parkway
Nashville, TN 37238                  Nashville, TN 37243

                                     TOM P. THOMPSON, JR.
                                     District Attorney General

                                     DAVID DURHAM
                                     Assistant District Attorney General
                                     111 Cherry Street
                                     Lebanon, TN 37087




OPINION FILED ________________________

APPEAL ON CERTIFIED QUESTION DISMISSED; CONVICTION SET
ASIDE; REMANDED

DAVID H. WELLES, JUDGE
                                OPINION


      This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2)(i) of the

Tennessee Rules of Criminal Procedure. In his plea agreement, the Defendant

pled guilty to conspiracy to possess with intent to deliver more than 300 grams

of cocaine, stated by the judgment to be a Class B Felony.             In the plea

agreement, there were expressly reserved several certified questions of law that

the parties agreed were dispositive of the case. The certified questions originate

from the trial court’s denial of a motion to suppress evidence obtained from a

search of a package being transported by a parcel service to the Defendant and

evidence obtained from a search of his place of business.           After a careful

examination of the issues presented, we conclude that none of the certified

questions are dispositive of the case and dismiss the appeal. However, we must

set aside the conviction and remand the case for further proceedings.



      A package being shipped via the well-known mail carrier, Federal Express,

broke apart in transit somewhere in California. The tear in the outer box revealed

an inner block, wrapped in packing material and tape.          The package was

addressed to a Joyce Metcalf at 14960 Lebanon Road in W ilson County,

Tennessee. The details surrounding seizure of the package by law enforcement

and a subsequent search of its contents are unclear. However, Federal Express

officials suspected the package contained contraband and reported it to law

enforcem ent. It appears there has been involvement by both federal and state

officials from California and Tennessee.




                                        -2-
      There is testimony that a dog “sniff test” may have been conducted on the

package, but where the test was perform ed is unknown. The actual appearance

of the inner package is unclear, but at some point, law enforcement pierced the

plastic and took a sample of a white powder contained within the package. It is

also unclear when this occurred and whether the field test was conducted in

California, Tennessee, or both, although there is evidence that a field test was

conducted in Nashville on August 29, 1994. The test revealed that the package

contained a kilo of cocaine. The evidence does not confirm whether or not the

field test was undertaken pursuant to a warrant. Investigators determined that

the address on the package was a business called Performance Cycle Shop.

There is no evidence that shows that a Joyce Metcalf existed. The Defendant,

Randall Lunsford, was the owner of the business and was listed on the utilities’

accounts for the property. An NCIC check revealed that the Defendant had

arrests for narcotics possession and trafficking in Nashville.



      After the package arrived in Tennessee, the Fifteenth Judicial Drug Task

Force arranged for a controlled delivery to the Defendant’s address.        Any

involvement in the case by other law enforcement agencies is unknown. An

anticipatory search warrant was obtained to search the business premises after

the cocaine was delivered. Law enforcement obtained a Federal Express van

and Officer Scott Roberts was dressed as a Federal Express employee. Officer

Craig White rode inside the van to the delivery site.



      As the van arrived at the Perform ance Cycle business, it pulled into the

parking lot. The Defendant was about to leave in his vehicle, but when the van

approached, he parked his vehicle. The Defendant got out of his truck and

                                       -3-
approached the Federal Express van. Officer Roberts informed the Defendant

that he had a package to be delivered to 14960 Lebanon Road. The Defendant

answered that it was the right place after Officer Roberts stated it was addressed

to a certain person. The Defendant reminded the officer that if the package said

14960 Lebanon Road, it was the right place. Officer Roberts told the Defendant

that he would check the package, which was in the back of the van.              He

instructed the Defendant to go into the business to prevent him from seeing

Officer White.



      Officer Roberts brought the package into the store and the Defendant was

in the rear of the building. He set the package down while other officers executed

the search warrant. The Defendant did not remove the package from the place

where it was delivered and the officers retained the package. Pursuant to the

search, the officers seized a quarter-pound of marijuana, electronic and manual

scales, a wallet, rolodex, two handguns and $2071.00 in cash. The officers also

performed a consent search of the Defendant’s home.



      Officer W hite served the Defendant with the warrant, but picked it up to fill

out the return. Officer W hite did not leave the warrant at the business at the

conclusion of the search. He returned the warrant to the Defendant after defense

counsel contacted law enforcem ent. Although the timing is not certain, the

search was conducted on a Monday, and Officer White delivered a copy of the

warrant to the Defendant a few days after the search.




                                        -4-
          The Defendant was charged with one count of possession with intent to

sell or deliver more than 300 grams of cocaine 1 and one count of possession with

intent to sell more than one-half ounce of m arijuana.2 He filed a motion to

suppress the evidence seized pursuant to the search warrant and the cocaine

seized and searched prior to the execution of the search warrant of his business.

The trial court denied the Defendant’s motion to suppress. He subsequently

reached an agreement in which he pleaded guilty to conspiracy 3 to possess

more than 300 gram s of cocaine with intent to sell or deliver, a Class B felony, to

be sentenced as a Range I offender to eight years in the Department of

Correction. The State agreed to nolle the count for possession of marijuana.



          W e now turn to the Defendant’s certified questions. In this appeal, he

asserts (1) That he has standing to challenge a search of the package conducted

by law enforcement while it was in transit and that the search violated his

constitutional rights. He also claims that the warrant issued for the search of his

business premises was defective because (a) the affidavit did not clearly state

that the package had yet to be delivered; (b) the affidavit and warrant

misrepresented facts supporting probable cause; (c) police officers tricked the

Defendant into going inside his business; and (d) the officers failed to leave a

copy of the warrant at the place being searched. However, we are unable to

reach the merits of any certified question because none are dispositive of this

case.




1
    Tenn . Code A nn. § 39-17-41 7(j).

2
    Tenn . Code A nn. § 39-17-41 7(g)(1).

3
    Tenn. C ode Ann . § 39-12-103 (a).

                                            -5-
      The Defendant has reserved his certified questions pursuant to Rule

37(b)(2)(i) of the Tennessee Rules of Criminal Procedure, which provides that:



      An appeal lies "from any order or judgment in a criminal proceeding
      where the law provides for such appeal, and from any judgment of
      conviction : (2) [u]pon a plea of guilty or nolo contendere if: (i)
      defendant entered into a plea agreement under Rule 11(e) but explicitly
      reserved with the consent of the state and of the court the right to
      appeal a certified question of law that is dispositive of the case.


Tenn. R. Crim. P. 37(b)(2)(i).        Our supreme court has also prescribed

guidelines that must be adhered to in order to perfect an appeal by Rule

37(b)(2)(i) and (iv).   In State v. Preston, 759 S.W .2d 647 (Tenn. 1988), and

again in State v. Pendergrass, 937 S.W .2d 834 (Tenn. 1996), the court held:




              This is an appropriate time for this Court to make explicit to the
      bench and bar exactly what the appellate courts will hereafter require
      as prerequisites to the consideration of the merits of a question of law
      certified pursuant to Tenn.R.Crim.P. 37(b)(2)(i) or (iv). Regardless of
      what has appeared in prior petitions, orders, colloquy in open court or
      otherwise, the final order or judgment from which the time begins to run
      to pursue a T.R.A.P. 3 appeal must contain a statement of the
      dispositive certified question of law reserved by defendant for appellate
      review and the question of law must be stated so as to clearly identify
      the scope and the limits of the legal issue reserved. For example,
      where questions of law involve the validity of searches and the
      adm issibility of statements and confessions, etc., the reasons relied
      upon by defendant in the trial court at the suppression hearing must be
      identified in the statement of the certified question of law and review by
      the appellate courts will be limited to those passed upon by the trial
      judge and stated in the certified question, absent a constitutional
      requirement otherwise. W ithout an explicit statement of the certified
      question, neither the defendant, the State nor the trial judge can make
      a meaningful determination of whether the issue sought to be reviewed
      is dispositive of the case. Most of the reported and unreported cases
      seeking the limited appellate review pursuant to Tenn. R. Crim. P. 37
      have been dismissed because the certified question was not
      dispositive. Also, the order must state that the certified question was
      expressly reserved as part of a plea agreement, that the State and the
      trial judge consented to the reservation and that the State and the trial

                                         -6-
      judge are of the opinion that the question is dispositive of the case. Of
      course, the burden is on defendant to see that these prerequisites are
      in the final order and that the record brought to the appellate courts
      contains all of the proceedings below that bear upon whether the
      certified question of law is dispositive and the merits of the question
      certified. No issue beyond the scope of the certified question will be
      considered.


Pendergrass, 937 S.W.2d at 836-37 (citing Preston, 759 S.W .2d at 650)

(emphasis added). The Defendant bears the burden of “reserving, articulating,

and identifying the issue.” Pendergrass, 937 S.W .2d at 838.



      In his first question, the Defendant contends that law enforcement officials

conducted an illegal, warrantless search of a package while in the course of

being transported by a private mail carrier. He asserts standing to challenge the

search and exclude the one-kilo of cocaine because the search violated the

Fourth Amendment to the United States Constitution and Article I, section 7 of the

Tennessee Constitution. There is evidence that the package was addressed to

a Joyce Metcalf, which is presumably an alias for the Defendant. The evidence

in the record shows that a search may have been conducted by piercing the

package and field testing its ingredients, yet there is no definitive evidence of the

size and appearance of the exterior or interior of the box. There was testimony

at the suppression hearing that a field test was conducted in Nashville, but also

that it may have occurred, along with a dog sniff test, in California. None of the

witnesses were present when any search was conducted and therefore could not

be certain what actually took place at Federal Express or when law enforcement

seized the package. There is no evidence that a warrant was obtained, but there

is no clear evidence that a warrant was not obtained by one of the agencies

involved. The only thing we can surmise is that the Defendant has left many



                                         -7-
unanswered questions about the events leading up to the controlled delivery of

the package.    We are unable to determine whether an illegal search was

conducted without a more detailed description of the appearance of the package

and the actions taken by law enforcement. This can only be developed by the

presentation of additional proof. The Defendant has failed to meet his burden of

providing an “explicit statement of the certified question.” Preston, 759 S.W.2d

at 650. We believe this includes providing a record that contains a complete

description of the relevant facts. Therefore, as it is presented, the Defendant’s

certified question cannot be answered and thus is not dispositive of this case.



      Nor can we conclude that the Defendant’s challenges to the validity of the

warrant are dispositive of this case. We note that by invalidating the warrant, the

only evidence that may be excluded is that seized within the business premises.

This does not include the kilo of cocaine which forms the basis for the charge for

which the Defendant was convicted. Although the officers used the package as

part of the controlled delivery, that package was already “seized” when law

enforcement took possession from Federal Express. Regardless of whether the

Defendant was the individual who had an interest in the package while it was in

the mail, it is clear that the cocaine was seized before issuance of the warrant.

“ A ‘seizure‘ of property occurs when there is som e meaningful interference with

an individual’s possessory interests in that property.” United States v. Jacobsen,

466 U.S. 109, 113, 104 S.Ct. 1652, 1655-56, 80 L.Ed.2d 85 (1984).          Sealed

packages and letters are protected from government inspection because an

individual has a reasonable expectation that the contents will remain private.

W alter v. United States, 447 U.S. 649, 651-52, 654, 100 S.Ct. 2395, 2398-99, 65

L.Ed.2d 410 (1980). The evidence does not reflect that the officers gave up

                                        -8-
possession of the package to the Defendant. Although the cocaine is listed on

the return of the warrant, its admissibility is not dependent upon the warrant’s

validity.



       Therefore, the only drug that was seized as a result of the warrant was the

four ounces of marijuana found in the business. We note that the State nolled

the charge for possession of marijuana, thus, the exclusion of the marijuana

evidence serves no purpose. Because the cocaine was not seized pursuant to

the warrant, it would not be excluded by finding a constitutional violation or a

defect in the warrant. As a result, we cannot conclude that the certified questions

regarding the warrant are dispositive of this case and we believe we must dismiss

this appeal.



       W e also believe that the Defendant’s crime is a Class A felony, even

though the court documents and judgment reflect a Class B felony and sentence.



        As we have previously mentioned, the Defendant pleaded guilty to one

count of conspiracy to possess with intent to sell more than 300 grams of

cocaine. The offense of possession of more than 300 grams of cocaine is a

Class A felony, with a possible range of punshment between 13.5 and 60 years

for all offender ranges.     Tenn. Code Ann. §§ 40-35-101; 39-17-417(j)(5).

Ordinarily, “conspiracy is an offense one (1) classification lower than the most

serious offense that is the object of the conspiracy.” Tenn. Code Ann. § 39-12-

107(c). Yet, there is a restriction for certain drug offenses contained in §§ 39-17-

417(i) and (j), that a conviction based on conspiracy is the same grade as a

conviction for the offense. Specifically, “a violation of subsection (a) with respect

                                         -9-
to the following amounts of a controlled substance, or conspiracy to violate

subsection (a) with respect to such amounts is a Class A felony.” Tenn. Code

Ann. § 39-17-417(j). Here, the Defendant pleaded guilty to what everyone

involved, including the trial judge, thought was a Class B felony and received an

eight-year (8) sentence. A conviction for a Class B felony and an eight-year

sentence were not applicable to nor within the sentencing range for the offense

set forth in the plea agreement and judgment, and therefore, are contrary to law.

The plea agreement should have been rejected by the trial court. W e must

therefore set aside the Defendant’s conviction, and remand to the trial court to

reject the plea agreement and for further proceedings in compliance with Rules

11(e)(2) and (e)(4) of the Tennessee Rules of Criminal Procedure.



      Accordingly, we dismiss the appeal of the certified questions, set aside the

Defendant’s conviction and remand to the trial court for further proceedings

regarding the Defendant’s plea consistent with Rule 11(e) of the Rules of

Criminal Procedure.




                                ____________________________________
                                DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOHN H. PEAY, JUDGE


___________________________________
JERRY L. SMITH, JUDGE

                                      -10-
