        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              January 13, 2016 Session

          STATE OF TENNESSEE v. CHARLES WILLIAM REED

               Appeal from the Criminal Court for Davidson County
                 No. 2014-C-1990 J. Randall Wyatt, Jr., Judge
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                 No. M2015-00978-CCA-R3-CD – Filed July 1, 2016
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This direct appeal presents a certified question of law pursuant to Tennessee Rule of
Criminal Procedure 37(b)(2)(A). Defendant, Charles William Reed, properly reserved a
certified question of law as part of his plea agreement in which he asks this Court
whether there was sufficient probable cause for the issuance of a search warrant. After a
thorough review of the record and applicable authorities, we affirm the trial court‟s
judgment.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Dawn Deaner, District Public Defender; Jeffrey A. DeVasher (on appeal) and Keeda J.
Hayes (at hearing), Assistant District Public Defenders, for the appellant, Charles
William Reed.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

        Defendant was indicted by the Davidson County Grand Jury for one count of
possession of more than .5 ounces of marijuana with intent to sell within 1000 feet of a
drug-free zone, one count of possession of drug paraphernalia, one count of possession of
a firearm after having been previously convicted of a felony drug offense, and one count
of possession of a firearm with intent to go armed during the commission or attempted
commission of a dangerous felony. Defendant filed a motion to suppress evidence
discovered pursuant to a search warrant, which was denied by the trial court. Thereafter,
Defendant entered a plea of guilty to the reduced charge of possession of marijuana with
intent to sell, and the other charges were dismissed.

       As part of his plea agreement, Defendant reserved with the consent of the State
and the trial court the following certified question of law:

       Whether the search warrant for 733 South 6th Street established a sufficient
       nexus among the criminal activity, the place to be searched, and the items
       to be seized where the alleged probable cause that marijuana would be
       found inside the residence was based upon police observing a small amount
       of marijuana discarded in a trash can in the living room, indicating past use,
       and Mr. Reed‟s admission that he had smoked marijuana earlier that day;
       and whether the evidence seized pursuant to the search warrant violated Mr.
       Reed‟s protections against unreasonable searches and seizes as guaranteed
       by the Fourth Amendment to the United States Constitution and Article I,
       section 7 of the Tennessee Constitution.

Defendant has properly reserved a certified question of law that is dispositive of the case.
See Tenn. R. Crim. P. 37(b)(2)(A); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988);
see also State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984) (“An issue is
dispositive when this Court must either affirm the judgment or reverse and dismiss.”).
Other grounds raised by Defendant in his motion to suppress were not included in the
certified question and will not be considered on appeal. See State v. Pendergrass, 937
S.W.2d 834, 836 (Tenn. 1996) (quoting Preston, 759 S.W.2d at 650) (holding that
appellate review is limited to those issues “passed upon by the trial judge and stated in
the certified question, absent a constitutional requirement otherwise”). We shall examine
the trial court‟s determination that there was sufficient probable cause to support the
issuance of the search warrant in this case.

       A trial court‟s factual findings on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996). Furthermore, questions about the “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. “We afford to the party prevailing in
the trial court the strongest legitimate view of the evidence and all reasonable and
legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d
861, 864 (Tenn. 1998). However, we review a trial court‟s application of the law to the
facts under a de novo standard of review. State v. Williams, 185 S.W.3d 311, 315 (Tenn.
2006).

       Under both the Tennessee and United States Constitutions, no search warrant may
be issued except upon probable cause, which “requires reasonable grounds for suspicion,
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supported by circumstances indicative of an illegal act.” State v. Smotherman, 201
S.W.3d 657, 662 (Tenn. 2006). Tennessee requires a written and sworn affidavit,
“containing allegations from which the magistrate can determine whether probable cause
exists,” as “an indispensable prerequisite to the issuance of a search warrant.” State v.
Henning, 975 S.W.2d 290, 294 (Tenn. 1998); see also T.C.A. § 40-6-104; Tenn. R. Crim.
P. 41(c). The affidavit must contain more than mere conclusory allegations on the part of
the affiant. Henning, 975 S.W.2d at 294. The standard to be employed in reviewing the
issuance of a search warrant is “whether the issuing magistrate had „a substantial basis for
concluding that a search would uncover evidence of wrongdoing.‟” Smotherman, 201
S.W.3d at 662 (quoting State v. Ballard, 836 S.W.2d 560, 562 (Tenn. 1992)). “In
determining whether probable cause supports the issuance of a search warrant, reviewing
courts may consider only the affidavit and may not consider other evidence provided to
or known by the issuing magistrate or possessed by the affiant.” State v. Saine, 297
S.W.3d 199, 206 (Tenn. 2009) (citing State v. Carter, 160 S.W.3d 526, 533 (Tenn.
2005)). The magistrate‟s judgment is entitled to great deference on appeal. State v.
Jacumin, 778 S.W.2d 430, 431-32 (Tenn. 1989)

        Our supreme court has explained that, in order to establish probable cause for the
issuance of a search warrant, the underlying 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). The affidavit “must show a nexus
among the criminal activity, the place to be searched, and the items to be seized.” Saine,
297 S.W.3d at 206. “The nexus between the place to be searched and the items to be
seized may be established by the type of crime, the nature of the items, and the normal
inferences where a criminal would hide the evidence.” Smith, 868 S.W.2d at 572.
Because a lapse of time between the commission of a crime and the issuance of a search
warrant may affect the likelihood that incriminating evidence will be found, reviewing
courts should “consider whether the criminal activity under investigation was an isolated
event or a protracted pattern of conduct.” State v. Reid, 91 S.W.3d 247, 275 (Tenn.
2002); see also State v. Hayes, 337 S.W.3d 235, 259 (Tenn. Crim. App. 2010) (noting
that “[i]f the illegal activity is described as ongoing, it is generally held that the affidavit
does not become stale with the passage of time”). However, probable cause is a case-by-
case determination. State v. Meeks, 876 S.W.2d 121, 124 (Tenn. Crim. App. 1993).

       In his affidavit in support of the search warrant in this case, Officer Conrad Straub
of the Metropolitan Nashville Police Department averred as follows:

       On 04/03/2014[,] East B flex Officers conducted a knock and talk at [701
       South 6th Street, Apartment 733] in regards to a drug complaint. Officers
       made contact with [Defendant,] who allowed Officers into the residence.
       During the conversation with [Defendant,] Officer [Travis] Davidson
       observed in plain view a small amount of marijuana in a trash can in the
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       living room. We notified [Defendant] of this[,] and he admitted that he
       smokes marijuana and had smoked earlier in the day. [Defendant] stated
       that he doesn‟t live at the residence and was only visiting but his brother
       who lived at the residence was not home . . . .

The affidavit sought to establish that the police had “probable cause to believe that
certain evidence of criminal activity, to wit: violations of state laws as set forth in
Tennessee Code Annotated Sections 39-17-401 et seq. [Tennessee Drug Control Act of
1989], will be found within or upon the premises[.]”

        Defendant argues that the affidavit does not contain facts indicative of ongoing
criminal activity sufficient to create a nexus among the alleged criminal activity, the
place to be searched, and the items to be seized. He relies heavily on this Court‟s opinion
in State v. Archibald, 334 S.W.3d 212 (Tenn. Crim. App. 2010). In that case, the
affidavit alleged that a confidential informant purchased drugs in an apartment up to
seventy-two hours before the issuance of the search warrant. This Court explained that
even though the affidavit established a nexus between the apartment and the criminal
activity, “it contained no information tending to establish how long the nexus would
persist.” Id. at 215. The affidavit did not contain any facts that the person who sold
drugs to the informant was more than a one-time visitor to the apartment or that the
informant observed any additional drugs within the apartment. Id.

       Defendant misinterprets this Court‟s ruling in Archibald as requiring evidence of
ongoing criminal activity before a search warrant will issue. Not all criminal offenses are
ongoing in nature. The inquiry is simply whether there is reason to believe that evidence
of criminal activity will be found in a particular location at the time the search warrant is
sought. See State v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim. App. 2000); State v.
Thomas, 818 S.W.2d 350, 357 (Tenn. Crim. App. 1991) (quoting Sgro v. United States,
287 U.S. 206, 210 (1932)). The issue in Archibald was the staleness of the information
contained in the search warrant. This Court had to determine “whether an affidavit
alleging only that drugs were bought in a particular apartment up to seventy-two hours
beforehand can support a warrant for the search of that apartment and its occupants.” 334
S.W.3d at 215. We noted that “[w]hen illegal activity is ongoing, courts have generally
held that the affidavit is less likely to become „stale‟ with the passage of time.” Id.
(quoting Thomas, 818 S.W.2d at 357). We held that, without facts indicating ongoing
criminal activity, “the information in the affidavit became stale as soon as enough time
had passed for such a one-time seller to leave the apartment.” Id.

       This case is easily distinguishable from Archibald. Here, the police applied for the
search warrant the same day as the events described therein occurred. From our review
of the record, it does not appear that the officers seized the small amount of marijuana in
plain view (perhaps out of an overabundance of caution), but instead froze the scene
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while Officer Straub went to apply for the search warrant. There was no lapse in time
that would have rendered the officers‟ observations stale. Furthermore, Defendant
admitted possession of the marijuana when he stated that he had smoked it earlier in the
day. Possession of any amount of marijuana is a criminal offense in Tennessee. See
T.C.A. § 39-17-418(b). Though Defendant‟s use of the marijuana may have occurred
sometime in the past, he presently possessed the remnants of that use when the officers
conducted the knock and talk. The magistrate had a substantial basis for determining that
there was probable cause to believe that evidence of wrongdoing would be discovered in
the apartment at the time Officer Straub applied for the search warrant. The trial court
did not err when it determined that the search warrant was sufficiently supported by
probable cause and denied Defendant‟s motion to suppress the evidence obtained as a
result of the search. We affirm the judgment of the trial court.


                                  ____________________________________________
                                  THOMAS T. WOODALL, PRESIDING JUDGE




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