         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs April 6, 2004

                     STATE OF TENNESSEE v. RANDY JAMES

                Direct Appeal from the Circuit Court for Humphreys County
                           No. 10251    Allen W. Wallace, Judge



                     No. M2003-01599-CCA-R3-CD - Filed June 10, 2004


The Defendant, Randy James, pled guilty to felony possession of marijuana. As part of his plea
agreement, he expressly reserved with the consent of the trial court and the State the right to appeal
a certified question of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(i). The issue
before us is whether the trial court erred by not suppressing the fruits of a search where there were
alleged false statements in the affidavit supporting the search warrant. We affirm the judgment of
the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Randy James.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; Victor S. Johnson, District Attorney General; and Lisa Donegan; Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION


        On January 29, 2002, a search warrant was issued in Humphreys County which authorized
the search of the Defendant’s residence. Although the record is somewhat unclear, it appears that
police officers conducted a search of the Defendant’s residence on the same day. As a result of the
search, the Defendant was charged with possession of drug paraphernalia with intent to deliver,
possession of marijuana with intent to deliver, and possession of hashish with intent to sell and/or
deliver. On June 13, 2002, the Defendant filed a motion to suppress the evidence recovered in the
search of his residence. In his motion, he asserted that the affidavit supporting the search warrant
contained false information. The affidavit in question states, in pertinent part,
       [Officer David Daniel] says that a confidential informant . . . has supplied
       information on today’s date that said confidential informant personally overheard an
       individual make arrangements to purchase marijuana from the above-named
       individual, to-wit: Randy James. . . . Affiant would state that said confidential
       informant advised the time the subject was to purchase marijuana from Randy James,
       stating specifically that the individual was going to Mr. James’ residence.
       Confidential informant further gave a detailed description of the vehicle being driven
       by the individual purchasing marijuana from Randy James, as well as identifying the
       individual by name, as well as advising that the individual’s driver’s license was
       suspended, as well as advising which route said individual would be traveling. Your
       Affiant, acting upon the information supplied by the confidential informant, went by
       900 Old Highway 13, same being the residence of Randy James, and was able to
       verify that the automobile as described by the confidential informant was in fact at
       the James residence. Your Affiant then positioned himself along the route which
       confidential informant had advised the individual purchasing marijuana would use.
       Your Affiant had confirmed that the individual’s driver’s license was in fact revoked.
       Upon seeing the subject vehicle, same being the one seen at the James residence,
       your Affiant pulled over said individual, advising same that the individual was under
       arrest for driving on revoked license. Your Affiant further questioned the individual
       about the presence of any drugs in the vehicle. Said individual at that time advised
       your Affiant that there was in fact approximately 1/4 oz of marijuana on said
       individual’s person. Said individual at that time advised your Affiant that the
       marijuana had just been purchased from Randy James at the residence hereinabove.


         A hearing on the Defendant’s motion was held on June 24, 2002. At this hearing, the
confidential informant did not testify. Rather, the informant’s wife, Kristie Culp, who was the
“individual” in the affidavit that purchased marijuana from the Defendant, testified that she never
told an officer that she had bought drugs from the Defendant. Therefore, she asserted that statements
to that effect in the affidavit were false. The trial court ruled that, based upon the “believability of
this witness,” there was not sufficient evidence to attack the veracity of the affidavit.

        The Defendant renewed his motion to suppress on August 16, 2002. Attached to his motion
was an affidavit, sworn to by Ms. Culp, which stated that she did not advise a police officer that she
had purchased marijuana from the Defendant. A second suppression hearing was held on December
23, 2002. Ms. Culp did not testify at this hearing. However, David Culp, her husband, did testify.
The record is unclear, but Mr. Culp was apparently the confidential informant who provided the
information contained in the affidavit to Officer David Daniel. Mr. Culp testified that he did not tell
Officer Daniel that Ms. Culp was going to purchase marijuana from the Defendant. He testified that
the police officer he spoke with was Officer Rob Edwards. He stated that he told Officer Edwards
that Ms. Culp “might be purchasing some [marijuana],” but that he did not mention the Defendant
as the seller. The trial court found Mr. Culp to be an incredible witness, and denied the Defendant’s
motion to suppress. On the same day, the Defendant pled guilty to felony possession of marijuana.


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However, he expressly reserved the right to appeal a certified question of law, which is stated on the
final judgment as: “Whether the search warrant affidavit contained false statements, recklessly made,
that were necessary for the finding of probable cause.”

      Tennessee Rule of Criminal Procedure 37(b)(2) provides that an appeal lies from any
judgment of conviction entered pursuant to a plea of guilty or nolo contendere if:

               (i) The 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, and 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
                       (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. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The prerequisites for the consideration
of the merits of a certified question of law having been met, we begin our analysis of whether the
trial court erred by denying the Defendant’s motion to suppress.

        An affidavit in support of a search warrant that is facially valid may be impeached if it
contains a false statement, essential to a finding of probable cause, that was recklessly made. See
State v. Little, 560 S.W.2d 403, 407 (Tenn. 1978). The defendant bears the burden of establishing
by a preponderance of the evidence that the false statement was recklessly made. See Franks v.
Delaware, 438 U.S. 154, 156, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

      “On appeal, the trial court’s findings of fact at the conclusion of a suppression hearing will
be upheld unless the evidence preponderates otherwise. The defendant bears the burden of
demonstrating that the evidence preponderates against the trial court’s findings.” State v. Harts, 7
S.W.3d 78, 84 (Tenn. Crim. App. 1999) (citations omitted).

       Questions 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. The party prevailing 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. So long


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        as the greater weight of the evidence supports the trial court’s findings, those findings
        shall be upheld.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

           At the conclusion of the two suppression hearings, the trial court determined that both
witnesses who testified that the affidavit contained false statements were incredible. Specifically,
the trial judge stated, “I watched Ms. [Culp] testify . . . and I didn’t believe it. That’s the bottom line.
. . . I sure didn’t believe her and this man we have this morning I don’t know if I’d believe him if he
told me it was daylight outside, I think I’d look.” Obviously the trial judge made a credibility
determination of both the Defendant’s witnesses and, in doing so, found that the Defendant had not
met his burden of showing that the affidavit contained a false statement which was recklessly made.
After reviewing the record, we conclude that the evidence does not preponderate against the trial
court’s findings.

        Accordingly, the judgment of the trial court is affirmed.



                                                          ___________________________________
                                                          DAVID H. WELLES, JUDGE




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