                                                                                          02/20/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs, at Knoxville, November 28, 2017

        STATE OF TENNESSEE v. TIMOTHY MARK HARTSFIELD

                 Appeal from the Circuit Court for Lawrence County
                      No. 33441       J. Russell Parkes, Judge


                            No. M2016-01959-CCA-R3-CD


In 2016, the Defendant, Timothy Mark Hartsfield, entered a best interest plea to possession
of methamphetamine, possession of synthetic marijuana, and unlawful possession of a
firearm during the commission of a dangerous felony. The Defendant reserved a certified
question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2) as to whether
the search of the Defendant’s residence was valid based on statements made by the
investigating officer in the search warrant application. The trial court sentenced the
Defendant to ten years of incarceration. After a thorough review of the record and
relevant authorities, we affirm the trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.

James B. McVeigh, Spring Hill, Tennessee, for the appellant, Timothy Mark Hartsfield.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Christi L. Thompson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                        I. Facts

      This case arises from the Defendant selling drugs inside his home to a confidential
informant (“CI”) while investigators listened to the transaction over an audio device. The
CI wore a camera that recorded the transaction. Following the controlled buy, the CI
provided an affidavit detailing the purchase of the drugs from the Defendant, as well as the
Defendant’s possession of a firearm. Based on the CI’s affidavit, law enforcement

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officers applied for a search warrant, and a magistrate approved the warrant. Investigators
subsequently searched the Defendant’s home and found drugs and a weapon.

                                   A. Motion to Suppress

        The Defendant filed a motion to suppress the evidence obtained during the search of
his home, contending that the chain of custody of the narcotics sold by the Defendant had
been broken and contending that sufficient probable cause did not exist to support the
search warrant. The trial court held a hearing on the Defendant’s motion, during which
the following evidence was presented: Investigator Todd Daniels testified that he was
employed by the Lawrence County Sheriff’s Department and assigned to the narcotics unit.
On March 23, 2015, Investigator Daniels met with the CI after the CI contacted him about
a potential narcotics purchase. The men met at a grocery store and, after searching the CI,
the CI got inside the investigator’s van. The CI told Investigator Daniels that he was
going to purchase from the Defendant one gram of methamphetamine and a packet of
synthetic marijuana. Investigator Daniels installed a recording device on the CI and gave
him $175 in marked currency. Investigator Daniels testified that this was done in the
situation of a “controlled buy.”

        The CI then proceeded to the Defendant’s residence in his girlfriend’s car, with his
girlfriend present. Investigator Daniels agreed that neither the girlfriend nor her vehicle
were searched. Once at the Defendant’s house, investigators heard over the audio device
the CI enter the home and speak with the Defendant. During their conversation, the
Defendant spoke of having a .380 caliber gun in his home. The State offered the video
recording of the CI and the Defendant’s interaction as evidence and then played it in open
court. Investigator Daniels confirmed he did not watch the video before applying for the
search warrant but relied on what he heard over the audio transmission of the transaction.

        The video showed the CI and the Defendant inside the Defendant’s residence. A
portion of the .380 caliber weapon is visible on the recording. The video showed the CI
giving the Defendant the $175 in marked bills, and the Defendant counting the money.
The video recording shows the CI displaying the synthetic marijuana and
methamphetamine packages. Investigator Daniels confirmed that the CI, as he had been
instructed to do, made the drugs clear in the video recording so that they could be
identified. Investigator Daniels agreed that in the application for the search warrant he
stated that the video recording showed the drugs and money being exchanged and that that
statement was false; he clarified that “counting money” could be heard on the recording but
the actual exchange was not recorded.

       On cross-examination, Investigator Daniels testified that he field tested the drugs
that the Defendant sold to the CI before he applied for the search warrant. The drugs

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tested positive for the substances the CI claimed they would be. He stated that, having had
prior dealings with the Defendant, Investigator Daniels recognized the Defendant’s voice
on the recording. Investigator Daniels denied putting any information in the search
warrant application that he knew to be false.

       On redirect-examination, Investigator Daniels testified that he did not intentionally
make false statements in the search warrant application but acknowledged that the
application contained untrue statements.

      Based on these facts, the trial court denied the Defendant’s motion to suppress in an
agreed order, stating the following:

              The Court finds that after review of the search warrant itself, the
       search warrant does establish and the affidavit establishes probable cause for
       which the search warrant could be issued.

               The next issue before the Court is the issue as more specifically
       addressed by [the Defendant] in directing the Court’s attention to [State v.
       Little, 560 S.W.2d 403 (Tenn. 1978)], and the State directing the Court’s
       attention to [Franks v. Delaware, 438 U.S. 154 (1978)] . . . The Court
       reviewed both of those.

              The Court, after having the opportunity to review the witness and the
       witness’[s] demeanor on the witness stand, first makes a finding that the
       witness did not willfully . . . provide false statements with an intent to
       deceive. To the extent necessary, this Court also finds that the statements,
       even if some of those statements were not correct, find that the statements
       were not made with an intent to deceive. I also find that the statements were
       not made recklessly.

              ...

               And I also find that to the extent necessary, the affiant did not conceal
       any truths from [the magistrate judge] that this affiant had a reasonable belief
       that all the statements made in the affidavit as provided in support of the
       search warrant were accurate and true.

The agreed order also reserved for appeal the following certified question of law:

       a. Were the false statements – either willfully or recklessly made – by Investigator
          Daniels in his Affidavit in Support of Search Warrant essential to the

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          establishment of probable cause?
       b. Was the search warrant issued upon evidence consisting in material part of
          willful or reckless misrepresentations of the applicant to the issuing judge in
          violation of Tenn. R. Crim. P. 41(g)(3)?
       c. If the search warrant was issued upon evidence consisting in material part of
          willful or reckless misrepresentations of the applicant to the issuing judge,
          should the search warrant be declared invalid and any evidence seized as a result
          of the subsequent search be suppressed in the above-styled case?

        Thereafter, the Defendant entered a best interest plea to possession of
methamphetamine, possession of synthetic marijuana, and unlawful possession of a
firearm during the commission of a dangerous felony. The trial court entered the
judgments incorporating the above certified question of law and sentenced the Defendant
to ten years of incarceration.

                                       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)). Rule 37(b)(2) of the Tennessee
Rules of Criminal Procedure provides that a defendant may appeal from any judgment or
conviction occurring as the result of a guilty plea. State v. Long 159 S.W.3d 885, 887
(Tenn. Crim. App. 2004). 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

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       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

       (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).

        In Preston, our supreme court stated its intention 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).” 759 S.W.2d at 650. Failure to properly reserve a certified question
of law pursuant to the requirements stated in Preston will result in the dismissal of the
appeal. Woodlee, 2010 WL 27883, at *2 (citing State v. Pendergrass, 937 S.W.2d 848,
838 (Tenn. 1996)). The importance of complying with the Preston requirements has been
reiterated by our supreme court in State v. Armstrong, 126 S.W.3d 908 (Tenn. 2003),
which stated that the Preston requirements are “explicit and unambiguous,” in rejecting the
defendant’s argument in favor of substantial compliance with Tennessee Rules of Criminal
Procedure 37. Id. at 912.

       In the case under submission, the Defendant’s issue on appeal meets these
requirements: he entered a best interest plea of guilt; the amended judgment forms
incorporated the certified question; and the certified question is stated so as to identify
clearly the scope and limits of the legal issue reserved and is dispositive of the case. Thus,
we conclude that the issue is properly before this Court.

                            B. Validity of the Search Warrant

       The Defendant contends that Investigator Daniels included false statements in his
affidavit in support of the search warrant and that probable cause could not have been
established without these false statements. This, the Defendant claims, makes the search
warrant invalid and the evidence seized in the search illegal. The State replies that
probable cause existed for the search warrant even without Investigator Daniels’s
statements because the affidavit detailed that the CI entered the Defendant’s home and
bought drugs from him, and that the transaction was monitored over audio by Investigator
Daniels. For these reasons, the State claims that the trial court properly denied the
Defendant’s motion to suppress. We agree with the State.


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        Our standard of review for a trial court’s findings of fact and conclusions of law
on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.
1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will
be upheld unless the evidence preponderates otherwise.” Id. at 23. This Court reviews
de novo the trial court's application of the law to the facts, without according any
presumption of correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81
(Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as
the trier of fact, is able to assess the credibility of the witnesses, determine the weight and
value to be afforded the evidence, and resolve any conflicts in the evidence. Odom, 928
S.W.2d at 23.

       We begin our analysis with 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, 81 S.Ct. 1684, 6 L.Ed.2d
1081 (1961). Similarly, article I, section 7 of the Tennessee Constitution provides:

       [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).

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       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).

       [T]here are two circumstances that authorize the impeachment of an
       affidavit sufficient on its face[:] (1) a false statement made with intent to
       deceive the Court, whether material or immaterial to the issue of probable
       cause[;] and (2) a false statement, essential to the establishment of probable
       cause, recklessly made.” State v. Little, 560 S.W.2d 403, 407 (Tenn.
       1978). “Allegations of negligence or innocent mistakes are insufficient to
       invalidate the search warrant.” State v. Yeomans, 10 S.W.3d 293, 297
       (Tenn. Crim. App. 1999) (citing Franks v. Delaware, 438 U.S. 154, 171, 98
       S.Ct. 2674, 57 L.Ed.2d 667 (1978)). The defendant bears the burden of
       proving the allegation of falsity by a preponderance of the evidence. Id.
       (citing Franks, 438 U.S. at 156, 98 S.Ct. 2674).

State v. Tuttle, 515 S.W.3d 282, 308 (Tenn. 2017).

       The search warrant affidavit in this case set forth the following grounds:

               On Monday March 23, . . . at approximately 1:45 P.M. Investigators
       Todd Daniels, Jason Runnels and Jon Roberts with the Lawrence County
       Sheriff’s Department met with a confidential source referred to here in [sic]
       as [the CI]. We discussed the purchase of 1 gram of Methamphetamine
       and 10 grams of synthetic marijuana from [the Defendant] at 244 Dry
       Weakley Road in Ethridge TN. The above listed drugs were going to be
       sold by [the Defendant] to [the CI] for the amount of $175.00 U.S.
       currency. At approximately 1:55 P.M. [the CI] was searched [and] no
       illegal weapons[,] drugs or contraband were found. [The CI] was then
       issued $175.00 in prerecorded U.S. [currency] as well as a video recording
       device to record the drug transaction. [The CI] was also fitted with a live
       listening device to monitor the drug transaction.

       [The CI] then departs Investigators and is followed by me and Investigator
       Runnels in an undercover vehicle. Jon Roberts also follows [the CI] in a
       separate undercover vehicle. At no time did we lose visual contact with

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      [the CI]. I and Investigator Runnels parked down the road to monitor the
      listening device. Investigator Roberts maintains visual contact with [the
      CI]. [The CI] knocks on the door of the residence at 244 Dry Weakley
      Road in Ethridge TN. [The CI] is invited into the residence by [the
      Defendant]. [The CI] talks with [the Defendant] for a period of time. I
      can hear [the CI] on the audio feed discussing the handgun laying near [the
      Defendant]. [The Defendant] tells [the CI] the handgun is a .380 caliber
      gun. [The CI] then hands [the Defendant] $175.00 in prerecorded U.S.
      currency [and] in return [the Defendant] tells [the CI] to get the dope off the
      top of the refrigerator. [The CI] retrieves the drugs and talks with [the
      Defendant] for a short time. The drugs and money exchange are captured
      on the video recording device. [The CI] then leaves and is surveilled back
      to a predetermined location to meet with Investigators at no time was [the
      CI] out of sight of Investigators. [The CI] is debriefed and hands
      Investigator Daniels a baggy containing white powdery substance and also
      a red package marked Super Strong Incense believed to be Synthetic
      Marijuana[.] [The CI] also tells us about the handgun near [the
      Defendant]. [The Defendant] is a convicted felon. [The CI] is searched
      [and] no illegal weapons, drugs or contraband are found. [The CI] then
      departs Investigators at approximately 2:25 P.M. The white powder
      substance did test field positive for Methamphetamine. The synthetic
      Marijuana was packaged in a red container labeled Super Strong Incense.
      Pictures were taken of the items and all items logged into evidence at CID
      evidence storage. The entire drug transaction was captured on the video
      recording device.

The evidence does not preponderate against the trial court’s findings that the search
warrant was valid with sufficient probable cause. The affidavit does state that the
“entire” drug transaction was recorded on video, and Investigator Daniels acknowledged
in his testimony that that statement was not true because part of the transaction was
obscured from view on the video recording. However, Investigator Daniels stated that,
when writing the affidavit, he relied on the real time audio recording of the drugs
transaction, which he monitored while it was taking place, and on the CI’s statements
about the encounter, which were consistent with what was relayed over the audio
transmission. He testified that over the transmission he heard that the CI had spotted a
weapon in the Defendant’s residence, described as a “three eighty,” and heard the CI
giving money to the Defendant for the drugs to complete the drug transaction. The CI
returned from the Defendant’s residence with the amount of drugs he had specifically
sought from the Defendant. This information supported the issuance of the search
warrant and, therefore, the evidence was seized pursuant to the lawful execution of the
search warrant.

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        The Defendant contends that the search warrant should have been declared invalid
because of Investigator Daniels’s misrepresentations in the application. While the
record establishes that Investigator Daniels was imprecise in his language, we disagree
that his statement was a misrepresentation. While the drug transaction was not entirely
visible in the video recording, it is clear that a transaction occurred and drugs are visible
at some point during the recording. Additionally, the Defendant fails to establish that
Investigator Daniels recklessly included false information in the affidavit. Furthermore,
he testified that he did not rely on the video when drafting the affidavit, meaning that his
statement as to the video’s contents had no impact on the information included in the
affidavit. Accordingly, the trial court did not err when it denied the Defendant’s motion
to suppress. The Defendant is not entitled to relief.

                                      III. Conclusion

       After a thorough review of the record and the applicable law, we affirm the trial
court’s judgments.

                                                   ________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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