        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 17, 2013 Session

                 STATE OF TENNESSEE v. RANDALL CAGLE

                  Appeal from the Circuit Court for Hickman County
                    No. 12-5120CR      Timothy L. Easter, Judge


               No. M2013-00728-CCA-R3-CD - Filed November 20, 2013


The defendant, Randall Cagle, pled guilty to four counts of sexual exploitation of a minor,
a Class D felony, and was sentenced as a Range II, multiple offender to an effective sentence
of eight years, suspended to supervised probation. As a condition of his guilty plea, the
defendant attempted to reserve a certified question of law pursuant to Rule 37(b)(2)(A) of
the Tennessee Rules of Criminal Procedure regarding the trial court’s denial of his motion
to suppress evidence seized during the search of his residence. After review, we conclude
that the certified question is overly broad and, as a result, this court is without jurisdiction
to consider the appeal. Accordingly, the appeal is dismissed.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Kenneth D. Quillen (on appeal) and Dale M. Quillen (at hearing), Nashville, Tennessee, for
the appellant, Randall Cagle.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Kim R. Helper, District Attorney General; and Kate Yeager,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                           FACTS

       On June 6, 2012, the Hickman County Grand Jury indicted the defendant for fourteen
counts of sexual exploitation of a minor, based upon images found on his computer depicting
minors engaging in sexual activity, after three young girls in foster care in the defendant’s
home disclosed they had been sexually assaulted by the defendant and made to watch adult
and child pornography on the defendant’s computer. On July 25, 2012, the defendant filed
a motion to suppress the evidence seized from his residence, followed by an amended motion
on December 18, 2012. The trial court conducted a bifurcated hearing on the motion on
January 23, 2013, and February 19, 2013.

       At the January 23, 2013 hearing, Detective Scott Smith of the Hickman County
Sheriff’s Department testified that he and other officers executed a search warrant at the
defendant’s residence in Nunnelly, Tennessee, on October 26, 2011. The defendant’s
computer, among other things, was seized by the officers, taken to the sheriff’s department,
and subsequently delivered to the Tennessee Bureau of Investigation (“TBI”) forensic
laboratory on November 1, 2011. Detective Smith acknowledged that some of the language
in the affidavit in support of search warrant was not “directly” his language and that the
assistant district attorney had helped him with the wording. He said he swore to the affidavit
and helped write it, but the definitions of technical terms pertaining to computers were
“common in most search warrants for this type of material.” He agreed that the search
warrant “authorized conduct of an offsite search of the seized hardware and other seized
equipment, if upon arriving at the scene agents executing the search warrant of the search
concluded that it would be impractical to search the computer hardware on site for this
evidence.” On cross-examination, Detective Smith said that neither he nor any other officer
with the sheriff’s department was trained to forensically examine computers; therefore, the
seized equipment was taken to the TBI laboratory for analysis.

       Upon questioning by the trial court, Detective Smith said that he did not take the
search warrant back to the issuing magistrate after the warrant was executed but, instead,
followed his normal practice and returned it to the court clerk’s office. The trial court
reserved ruling and requested that both parties submit briefs “specifically addressing the
issue what, if anything, the failure of the magistrate’s signing the return has on a search
warrant.” The court informed the parties they also could address whether the template
language was proper for use in a search warrant affidavit.

        At the conclusion of the hearing on February 19, 2013, the trial court denied the
defendant’s motion to suppress, finding that “the search warrant [was] not defective because
of its failure to be returned to a magistrate, and . . . that the defendant ha[d] abandoned that
argument because it was not addressed in the post-hearing brief that was filed.” The court
noted that the return of a search warrant was an “administerial function and just because [the
judge], who issued it, did not sign the return before it was filed with the clerk, does not
render the search warrant invalid.” As to the defendant’s argument that the search warrant
lacked probable cause due to staleness of the information, the court concluded:



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       [T]here was a period of time when the investigation was begun and the time
       that the warrant was actually executed and served on the [d]efendant’s
       residence, but due to the nature of this investigation and due to what we’re
       talking about here[,] stored data on a computer, I find that is a remarkably
       different factual issue that distinguishes this case and does not make the
       information stale.

               Furthermore, I find that the warrant that was issued by [the judge]
       certainly contained a sufficient nexus to render probable cause appropriate for
       the issuance of the warrant; although, the investigation had been going on for
       sometime. So I find then that there is a proper nexus that the issuance of the
       warrant, based upon that nexus, was proper and that the information does not
       rise to the level of staleness for the purpose of rendering the search warrant
       ineffective.

              ....

               . . . I’m satisfied also that based upon the case that was submitted by the
       State regarding the boilerplate language, or template language, that particularly
       in these types of cases dealing with internet activity and internet searching, that
       such language is appropriate and does not render the search warrant invalid in
       any way.

              ....

              So the Motion to Suppress is denied.

      Thereafter, the defendant pled guilty to four counts of sexual exploitation of a minor,
and the remaining counts were dismissed. The judgment forms reflect the following
language in the “special conditions” section:

       Pursuant to Rule 37, Tenn. R. Crim. Pro.[,] the [d]efendant is entering a plea
       agreement expressly reserving the right to appeal a certified question of law.
       The certified question of law is expressly reserved as a part of the plea
       agreement and the State and the Trial Judge consent to the reservation and are
       all of the opinion that the certified question is dispositive of the case. The
       certified question is as follows: Whether the search warrant affidavit
       established probable cause.




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                                          ANALYSIS

        The defendant argues that the facts contained in the search warrant affidavit were too
stale to establish probable cause and that the affidavit did not establish a sufficient nexus
between the place to be searched and the items to be seized. The State responds that the
defendant has failed to properly reserve a certified question in that the question is overly
broad because it does not clearly identify the scope and limits of the legal issue reserved. We
agree with the State.

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

               (A) [T]he defendant entered into a plea agreement under Rule 11(a)(3)
       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:

              (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 that the defendant reserved for appellate
       review;

              (ii) the question of law is stated in the judgment or document so as to
       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 court; and

               (iv) the judgment or document reflects that the defendant, the state, and
       the trial court are of the opinion that the certified question is dispositive of the
       case[.]

Tenn. R. Crim. P. 37(b)(2)(A). In State v. Preston, 759 S.W.2d 647 (Tenn. 1988), our
supreme court emphasized that the burden is on the defendant to ensure that the conditions
for properly preserving a question of law pursuant to Rule 37 have been met:

              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

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       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
       admissibility 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. . . . No issue
       beyond the scope of the certified question will be considered.

Id. at 650.

        Here, the certified question does not clearly identify the scope and limits of the legal
issue reserved and is, thus, overly broad. In his question, the defendant failed to identify the
reasons he believed probable cause to be insufficient. He does not mention the staleness of
the facts or the existence of a sufficient nexus between the place to be searched and criminal
activity, both of which he argues in his brief. As posed, the question would require this court
to essentially conduct a complete overview of the plethora of reasons a search warrant
affidavit could lack probable cause. See State v. James F. Mason, No. M2010-01350-CCA-
R3-CD, 2011 WL 856934, at *4 (Tenn. Crim. App. Mar. 11, 2011), cf. State v. Maurice
Edward Carter, No. M2010-00063-CCA-R3-CD, 2011 WL 3303714, at *11 (Tenn. Crim.
App. Aug. 2, 2011), perm. app. denied (Tenn. Nov. 15, 2011); State v. Nicholas J. Johnson,
No. M2000-03162-CCA-R3-CD, 2001 WL 1356369, at *2 (Tenn. Crim. App. Nov. 6, 2001),
perm. app. denied (Tenn. Apr. 8, 2002). We are without jurisdiction to consider the appeal
because the defendant failed to properly reserve his certified question of law.

                                       CONCLUSION

       We conclude that the defendant has failed to satisfy the requirements for certifying
a question of law for appeal pursuant to Tennessee Rule of Criminal Procedure 37(b)(2).
Accordingly, we dismiss the appeal.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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