         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs July 10, 2007

               STATE OF TENNESSEE v. BOBBY GLENN SCOTT

                 Direct Appeal from the Circuit Court for Henderson County
                           No. 06056-2     Donald A. Allen, Judge



                   No. W2007-00373-CCA-R3-CD - Filed January 28, 2008


Defendant, Bobby Glenn Scott, entered a plea of guilty to possession of methamphetamine, a
Schedule II drug, a Class B felony; possession of unlawful drug paraphernalia, a Class A
misdemeanor; and unlawful possession of a handgun by a convicted felon, a Class E felony. The
transcript of the guilty plea submission hearing is not in the record. The judgments of conviction
reflect that the trial court sentenced Defendant as a Range I, standard offender, to twelve years for
possession of cocaine, two years for his weapons conviction, and eleven months, twenty-nine days
for his misdemeanor conviction. The trial court ordered Defendant to serve his sentences
concurrently for an effective sentence of twelve years. Defendant attempted to reserve a certified
question of law under Rule 37(b)(2)(I) of the Tennessee Rules of Criminal Procedure, challenging
the trial court’s denial of his motion to suppress the evidence seized after execution of a search
warrant. After review, we conclude that this Court does not have jurisdiction to address the certified
question because the certification did not meet the requirements of State v. Preston, 759 S.W.2d 647
(Tenn. 1988). The appeal is, therefore, dismissed.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID G. HAYES and NORMA
MCGEE OGLE, JJ., joined.

Jack S. Hinson, Lexington, Tennessee, for the appellant, Bobby Glenn Scott.

Robert E. Cooper, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
James G. Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General
for the Appellee, State of Tennessee.
                                              OPINION

I. Factual Background

        On October 23, 2006, Defendant was indicted for possession of 0.5 grams or more of
methamphetamine with the intent to sell, possession of 0.5 grams or more of methamphetamine with
the intent to deliver, possession of drug paraphernalia, and unlawful possession of a handgun by a
convicted felon. Defendant filed a motion to suppress the items seized during a search of his
residence, arguing that the affidavit of the investigating officer failed to establish probable cause for
the issuance of the search warrant. Specifically, Defendant argued that the affidavit failed to indicate
the basis of the informant’s credibility or the reliability of the informant’s information. Following
a hearing, the trial court denied Defendant’s motion to suppress.

       Thereafter, on February 7, 2007, Defendant entered into a negotiated plea agreement under
Rule 11(e) of the Tennessee Rules of Procedure, in which he pled guilty to possession of
methamphetamine, possession of drug paraphernalia, and felony possession of a weapon. The plea
was accepted by the trial court.

        As part of his plea, Defendant attempted to reserve the right to appeal a certified question of
law dispositive of the case pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal
Procedure. The respective judgments of conviction forms entered on February 3, 2007, contained
the following notation within the special conditions section: “Defendant explicitly reserves the
question of law on the motion to suppress as to an appeal in this case as the certified question would
be dispositive of this case.” The State argues initially on appeal that the question is not properly
before this Court because Defendant has failed to comply with the prerequisites for reserving a
certified question of law. We agree.

II. Reservation of Certified Question of Law

       Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure provides that a defendant may
appeal from any judgment of conviction occurring as a result of a guilty plea if the following
requirements are met:

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

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

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



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

See also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston,759 S.W.2d 647,
650 (Tenn. 1988).

       Additionally, in Preston, our supreme court explicitly provided prerequisites to appellate
consideration of a certified question of law under Rule 37(b)(2)(i), stating:

       [r]egardless 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.

Preston, 759 S.W.2d at 650.

        Failure to properly reserve a certified question of law pursuant to Preston will result in the
dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). The burden is
on the defendant to see that the prerequisites are in the final order and that the record brought to the
appellate court contains all of the proceedings below that bear upon whether the certified question
of law is dispositive and the merits of the question certified. Preston, 759 S.W.2d at 650.

       In Armstrong, our supreme court reiterated that strict compliance with Preston is required:

       [O]ur prior decisions demonstrate that we have never applied a substantial
       compliance standard to the Preston requirements as urged by the defendant in this
       case. To the contrary, we have described the requirements in Preston for appealing
       a certified question of law under Rule 37 of the Tennessee Rules of Criminal
       Procedure as “explicit and unambiguous.” Moreover, we agree with the State that
       a substantial compliance standard would be very difficult to apply in a consistent and
       uniform manner, and therefore would conflict with the very purpose of Preston. We
       therefore reject the defendant’s argument that substantial compliance with the
       requirements set forth in Preston is all that is necessary in order to appeal a certified
       question of law.

Armstrong, 121 S.W.3d at 912 (citations omitted).

         The judgments of conviction in the instant case do not expressly state that Defendant is of
the opinion that the certified question is dispositive of the case, even though the prosecutor and the
trial judge both signed the judgments which state the certified question would be dispositive of the
case, nor does the judgment expressly state that the certified question was reserved with the consent
of all parties. Nor does the judgment of conviction refer to or incorporate any other independent


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document which would satisfy the Preston requirements. See State v. Bowery, 189 S.W.3d 240, 246
(Tenn. Crim. App. 2004).

        The issue reserved is the “question of law on the motion to suppress.” We agree with the
State that the certified question is not so clearly stated as to identify the scope and limits of the legal
issue reserved. Defendant bears the burden of “reserving, articulating, and identifying the issue.”
Pendergrass, 937 S.W.2d at 838. As the Pendergrass court cautioned:

        [w]here questions of law involve the validity of searches and the admissibility of
        statements and confessions, etc., the reasons relied upon by the 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
        statement otherwise. Without 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.

Preston, 759 S.W.2d at 650.

        Based on the foregoing, we conclude that Defendant’s certified question “of law on the
motion to suppress” is overly broad and fails to clearly identify the scope and the limits of the legal
issue reserved. Thus, we are without jurisdiction to review the merits of Defendant’s claim because
he has failed to properly reserve his certified question of law. Accordingly, the appeal is dismissed.

III. Probable Cause

        In the event of further review, however, we will address Defendant’s challenge to the
issuance of the search warrant. On January 13, 2006, police officers searched Defendant’s residence
pursuant to a search warrant obtained by Investigator Ricky Montgomery with the Lexington Police
Department. The search revealed the presence of drugs, drug paraphernalia and firearms resulting
in Defendant’s indictment for the charged offenses. Defendant filed a pretrial motion to suppress
the evidence obtained as a result of the search warrant, arguing that the affidavit was insufficient
because it failed to establish probable cause. Specifically, Defendant contended that the affidavit
failed to establish the criminal informant’s credibility or the reliability of his information.

        Under both the Fourth Amendment to the United States Constitution and Article I, section
7, of the Tennessee constitution, no warrant may be issued except “upon probable cause supported
by oath or affirmation.” The Fourth Amendment warrant requirement demands that a probable cause
determination be made by a neutral and detached magistrate. State v. Valentine, 911 S.W.2d 328,
330 (Tenn. 1995); State v. Jacumin, 778 S.W.2d 430, 431 (Tenn. 1989); State v. Moon, 841 S.W.2d
336, 338 (Tenn. Crim. App. 1992). Probable cause has generally been defined as “a reasonable
ground for suspicion, supported by circumstances indicative of an illegal act.” State v. Johnson, 854
S.W.2d 897, 899 (Tenn. Crim. App. 1993). If probable cause is absent, the magistrate is not


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empowered to issue a warrant. When reviewing the issuance of a search warrant, this Court must
determine whether the magistrate had a substantial basis for concluding that a search warrant would
uncover evidence of wrongdoing. Jacumin, at 432 (citations omitted). “[I]n passing on the validity
of a warrant, the reviewing court may consider only the information brought to the magistrate’s
attention.” Jacumin, 778 S.W.2d at 431-32. We may not consider any evidence that was not
included in the affidavit even if it was known by the affiant or provided to or possessed by the issuing
magistrate. State v. Carter, 160 S.W.3d 526, 533 (Tenn. 2005); State v. Henning, 975 S.W.2d 290,
295 (Tenn. 1998). The magistrate’s judgment is entitled to great deference on appeal. Jacumin, 778
S.W.2d at 431-32.

       The relevant portion of the affidavit given by the affiant, Investigator Montgomery, in
support of the issuance of the search warrant states as follows:

       On January 12, 2006, officers from the Lexington Police Department made a traffic
       stop. During the search of the vehicle a large amount of suspected methamphetamine
       was located on one of the individuals in the vehicle. After speaking to the person
       Tim Cotham, he stated he along with [two] friends went to the residence of the
       person listed above[,] Glenn Scott[,] and purchased the suspected methamphetamine.
       Mr. Cotham stated he had been to Glenn Scott[’]s residence on four different
       occasions to purchase methamphetamine. Mr. Cotham stated they went out to Glenn
       Scott’s shop in his back yard to get the methamphetamine. Mr. Cotham [also] stated
       he saw methamphetamine inside the residence. Glenn then got the methamphetamine
       out of a red tool box inside the shop. Mr. Cotham then stated Glenn sold the drugs
       to him for $700.00 and told him he should make about $1500.00 with this amount.
       Mr. Cotham did state he sold methamphetamine in the past. The other two
       individuals were interviewed separately and did corroborated [sic] Mr. Cotham[’]s
       statement.

        In order to establish probable cause, an affidavit may include hearsay information supplied
by an informant. See Henning, 975 S.W.2d at 294-95. Tennessee law, however, distinguishes
between “citizen informants” and “criminal informants.” Special rules fulfill the need for a detached
and neutral review when probable cause is supplied by an informant who is an informant drawn from
the “criminal milieu.” In such situations, Tennessee requires the application of the two-pronged
Aguilar-Spinelli test. Smotherman, 201 S.W.3d at 662 (citing State v. Williams, 193 S.W.3d 502,
507 (Tenn. 2006); Jacumin, 778 S.W.2d at 431; see Spinelli v. United States, 393 U.S. 410, 89 S.
Ct. 584, 21 L. Ed 2d. 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723
(1964). The two-pronged test must be used to assure (1) the basis of the informant’s knowledge and
(2) the credibility of the informant or the reliability of the information. Smotherman, 201 S.W.3d
at 662 (citing State v. Cauley, 863 S.W.2d 411, 417 (Tenn.1993)); Jacumin, 778 S.W.2d at 432.
Each prong must be considered and satisfied separately to establish probable cause. Williams, 193
S.W.3d at 507. The affidavit must contain more than conclusory allegations. Moon, 841 S.W.2d
at 338.



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        The affidavit states that Mr. Cotham told Investigator Montgomery that he had purchased
methamphetamine from Defendant at Defendant’s residence and that he had previously purchased
methamphetamine from Defendant on four occasions. The affidavit goes on to state that Mr. Cotham
had methamphetamine in his possession, and that Defendant retrieved the methamphetamine from
a red tool box located inside Defendant’s shop in the backyard, and that Mr. Cotham also observed
methamphetamine inside the house. The affidavit also states that Mr. Cotham admitted to selling
methamphetamine in the past. The informant’s basis of knowledge that methamphetamine was
located at Defendant’s premises was established, but what was not established in the affidavit was
when Mr. Cotham bought and observed the methamphetamine on Defendant’s premises.

         The only information provided in the affidavit that could even arguably attempt to establish
the reliability of the information or Mr. Cotham’s credibility, was a statement that “[t]he two other
individuals [in the vehicle] were interviewed separately and did corroborat[e] Mr. Cotham’s
statement.” No information concerning what portion of Mr. Cotham’s information was corroborated
by the two passengers is reflected in the affidavit. The affidavit merely reflects that three people
were stopped because of a traffic violation, one of the individuals carried methamphetamine on him,
the person admitted to buying and selling methamphetamine before (establishing himself as part of
the “criminal milieu,”) the person said that he bought the methamphetamine from Defendant, and
the person supplied some details of the transaction. The affidavit does not contain any statement that
Mr. Cotham had provided reliable information in the past or even whether the affiant knew Mr.
Cotham.

        Relying on Spinelli, the State argues that the “minute particularity” with which Mr. Cotham
described the drug transaction supports a finding that Mr. Cotham’s information was credible. That
is, Mr. Cotham stated that the methamphetamine was kept in a shed in Defendant’s back yard in a
red tool box.

        If an informant does not reveal how he or she came to be in possession of the information,
the basis of knowledge prong of the Aguilar-Spinelli test can be satisfied if the informant’s
information is “in such sufficient detail that the magistrate may know that he 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.” Jacumin, 778 S.W.2d at 432 (quoting Spinelli, 393 U.S. at
416, 89 S. Ct. at 589). The Court in Spinelli cited Draper v. United States, 358 U.S. 307, 79 S. Ct.
329, 3 L. Ed. 2d 327 (1959) with approval as a “suitable benchmark.” Spinelli, 393 U.S. at 416-417,
89 S.Ct. at 589. The informant in Draper did not state the way he came by the information, but
described with particularity numerous details including the clothing that Draper would be wearing
upon arriving at the station. The Spinelli court observed that under Draper, “[a] magistrate, when
confronted with such detail, could reasonably infer that the informant had gained his information in
a reliable way.” Id. at 417, 589.

       In the case sub judice, Mr. Cotham’s basis of knowledge was established by his personal
observations and dealings with Defendant. However, the description of Defendant’s yard and shed,
while arguably adding to the basis of Mr. Cotham’s knowledge under Draper, did not satisfy the


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Aguilar-Spinelli requirement that the affidavit show either that the information was reliable or that
Mr. Cotham was credible. See Draper, 358 U.S. at 313, 79 S. Ct. at 333 (noting that the informant
had given reliable information in the past, and the investigating officer personally verified the details
of the informant’s description of the suspect’s activity, thus, only the basis of the informant’s
knowledge was at issue). The affidavit in the case sub judice does not provide a corroboration of
the details of Mr. Cotham’s statement nor does it contain a statement that Mr. Cotham had provided
reliable information in the past. The details of the transaction provided by Mr. Cotham only became
credible after they were verified during the execution of the search warrant.

        The State argues, however, that Mr. Cotham’s information was verified by Investigator
Montgomery’s independent corroboration. Presumably, the State is referring to the police
surveillance activities described in Investigator Montgomery’s testimony at the suppression hearing
because the affidavit makes no mention of independent police corroboration. Although “independent
police corroboration can make up deficiencies either as to the basis of knowledge or reliability,” such
corroboration must be reflected within the four corners of the affidavit. Smotherman, 201 S.W.3d
at 664 (citing Jacumin, 778 S.W.2d at 436); State v. Stepherson, 15 S.W.3d 898, 903-904 (Tenn.
Crim. App. 1999). The only evidence of independent police corroboration was revealed during the
testimony presented at the suppression hearing. “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 Jacumin, 778 S.W.2d at 432).

        At the suppression hearing, Investigator Montgomery testified that prior to obtaining the
search warrant, Defendant’s residence had been the target of a police surveillance. Investigator
Montgomery testified that he observed a person later identified as Tim Cotham enter and exit
Defendant’s house. Mr. Cotham was pulled over for committing a traffic violation shortly after he
left Defendant’s residence. Mr. Cotham and his two passengers were arrested after approximately
one-half ounce of methamphetamine was discovered on one of the passengers.

       In appears from the record that the trial court relied in part upon Investigator Montgomery’s
testimony at the suppression hearing concerning the surveillance activities to support a finding of
probable cause. Our supreme court has concluded that reliance of testimony at a suppression hearing
to support a finding that probable cause existed for the issuance of a search warrant is inappropriate.
Moon, 841 S.W.3d at 337. The supreme court observed of the facts before it in that case that:

        [w]ithout question, the evidence presented at the hearing was more than adequate to show
        probable cause that criminal activity regarding marijuana was afoot at the defendant’s
        residence. However, this same evidence was not contained in the affidavit submitted to
        obtain the search warrant. We do not question the reliability of the affiant’s testimony, but
        as a matter of policy the consideration of such evidence is inappropriate and lends itself to
        the risk of after-the-fact justification for a warrant.

Id. at 337-338.


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        As the State urges, we are sensitive to a hypertechnical application of the two-pronged test.
Smotherman, 201 S.W.3d at 664 (citing Jacumin, 778 S.W.2d at 436). “The need to refrain from
hypertechnical application, however, ‘should not result in our ignoring the responsibility placed upon
the judiciary by constitutional and statutory mandate to make an independent determination of
probable cause, by affidavit, before a warrant may issue.’” Smotherman, 201 S.W.2d at 664 (quoting
Moon, 841 S.W.2d at 342).

        Accordingly, because a review would be limited to the contents of the affidavit only, the
affidavit failed to show either that Mr. Cotham’s information was reliable or that he was credible,
and the second prong of the Aguilar-Spinelli test was thus not met. The search warrant for
Defendant’s home was not based on probable cause, and the evidence should have been suppressed.


                                         CONCLUSION

       Because of Defendant’s failure to properly frame his certified question of law, this Court is
unable to reach the merits of Defendant’s claim as this Court has no jurisdiction to entertain this
appeal. See Tenn. R. Crim. P. 37(b)(2)(i). Accordingly, this appeal is dismissed.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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