                                                                                        07/27/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 8, 2020

           STATE OF TENNESSEE v. MARVIN GLENN BORDEN

                 Appeal from the Circuit Court for Weakley County
                      No. 2018-CR-46 Jeff Parham, Judge
                     ___________________________________

                           No. W2019-00534-CCA-R3-CD
                       ___________________________________


Defendant, Marvin Glenn Borden, was charged with one count of possession of more
than 0.5 gram of methamphetamine with intent to sell or deliver and one count of
possession of drug paraphernalia. Defendant filed a motion to suppress, which was
denied by the trial court. Thereafter, Defendant pled guilty to the possession of
methamphetamine charge with an agreed four-year sentence as a Range I offender to be
served in confinement. The State dismissed the drug paraphernalia charge. Defendant
reserved a certified question of law under Rule 37(b)(2)(A) of the Tennessee Rules of
Criminal Procedure, challenging the trial court’s denial of the motion to suppress. After
review, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Marvin Glenn Borden.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Thomas A. Thomas, District Attorney General; and Colin Johnson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Background

        On appeal, Defendant presents a certified question of law challenging the
sufficiency of the information in the affidavit provided in support of the search warrant.
In his brief, he states the issue as follows:
        WHETHER THE AFFIDAVIT SUBMITTED TO THE ISSUING
        JUDGE CONTAINED ENOUGH INFORMATION TO ALLOW THE
        JUDGE TO MAKE AN INDEPENDENT, NEUTRAL AND
        DETACHED DETERMINATION THAT THE INFORMANT WAS
        CREDIBLE OR THAT HIS INFORMATION WAS RELIABLE.

      The certified question states in full:

        The certified question of law being reserved pursuant to Tenn. R. Crim.
        P. 37 (b) is whether or not the affidavit submitted to the issuing judge
        contained enough information to allow the judge issuing the warrant to
        make an independent, neutral and detached determination that the
        informant is credible or that his information is reliable.

        The affidavit does not state how the informant is familiar with meth, nor
        the reason for his being in the defendant’s home. The affidavit does not
        describe the items used to sell or consume meth, it does not state whether
        he is a citizen informant or from the criminal milieu; nor does he do
        more than make an allegation that the defendant sells meth from his
        home, no facts of this provided.

        The affidavit does not state that the illegal drugs and paraphernalia were
        still located at the searched residence at the time the search warrant was
        issued.

        Does the affidavit offer more in support of a search warrant than mere
        conclusory allegations by the affidavit?

        These questions were raised in the Motion to Suppress which was denied
        by the trial judge, who issued the search warrant.

The State does not challenge that the question was properly reserved. However, we must
first determine whether the question was properly reserved. State v. Preston, 759 S.W.2d
647 (Tenn. 1988). Rule 37 (b)(2)(A) 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 order reserving the certified question
          that is filed before the notice of appeal is filed contains a statement of
          the certified question of law that the defendant reserved for appellate
          review;


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        (B) the question of law as stated in the judgment or order reserving the
          certified question of law identifies clearly the scope and limits of the
          legal issue reserved;
        (C) the judgment or order reserving the certified question reflects that the
          certified question was expressly reserved with the consent of the state
          and the trial judge; and
        (D) the judgment or order reserving the certified question reflects that
          the defendant, the state, and the trial court 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).

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

        Regardless 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. 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. 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. Most of the reported and unreported cases
        seeking the limited appellate review pursuant to [Tennessee Rule of
        Criminal Procedure] 37 have been dismissed because the certified
        question was not dispositive. Also the order must state that the certified
        question was expressly reserved as part of a plea agreement, that the
        State and the trial judge consented to the reservation and that the State
        and the trial judge are of the opinion that the question is dispositive of
        the case.

Preston, 759 S.W.2d at 650. Although the parties in this case agreed that Defendant’s
certified questions of law were dispositive of the case, we are not bound by that
determination. State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003). We
instead “must make an independent determination that the certified question is

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dispositive.” State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007) (citation omitted). “An
issue is dispositive when this court must either affirm the judgment or reverse and
dismiss.” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).

       We conclude that the certified question is properly before this court.

       A summary of the testimony at the evidentiary hearing on Defendant’s motion to
suppress is not necessary. The search warrant and affidavit in support of the issuance of
the search warrant were made an exhibit at the hearing.

       Analysis

       The only issue presented by Defendant is whether there was a lack of facts in the
affidavit to establish that the confidential informant is credible or that his information
was reliable in order to establish probable cause. We must review the affidavit’s contents
to determine whether, within the “four corners” of the affidavit, sufficient facts were set
forth to establish probable cause to issue the search warrant. State v. Keith, 978 S.W.2d
861, 870 (Tenn. 1998).

       The Fourth Amendment to the United States Constitution and Article I, section 7
of the Tennessee Constitution protect individuals from unreasonable searches and
seizures. See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. The protections of Article
I, Section 7 of the Tennessee Constitution are coextensive with those of the Fourth
Amendment. State v. Tuttle, 515 S.W.3d 282, 307 (Tenn. 2017).

        In reviewing a trial court’s determinations regarding a suppression hearing,
“[q]uestions 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.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court’s findings
of fact in a suppression hearing will be upheld unless the evidence preponderates
otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of
law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).
Furthermore, the prevailing party 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.” Odom, 928 S.W.2d at 23.

       Our standard of review in determining whether a search warrant is based upon
probable cause is “whether, in light of all the evidence available, the magistrate had a
substantial basis for finding probable cause.” State v. Meeks, 876 S.W.2d 121, 124
(Tenn. Crim. App. 1993). “In reviewing the existence of probable cause for issuance of a
warrant, we may consider only the affidavit and may not consider any other evidence
known by the affiant or provided to or possessed by the issuing magistrate.” State v.
Carter, 160 S.W.3d 526, 533 (Tenn. 2005); see Tuttle, 515 S.W.3d at 299. A supporting

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affidavit must establish a nexus between the criminal activity, the place to be searched,
and the things to be seized. State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009)
(citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002)). “Courts also should consider the
nature of the property sought, the normal inferences as to where a criminal would hide
the evidence, and the perpetrator’s opportunity to dispose of incriminating evidence.”
 Reid, 91 S.W.3d at 275.

        In determining whether the affidavit used to obtain the search warrant was
sufficient, the Tennessee Supreme Court has adopted the totality-of-the-circumstances
test, which requires the issuing magistrate to “‘make a practical, commonsense decision
whether, given all the circumstances set forth in the affidavit before him, including the
veracity and basis of knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.’”
 Tuttle, 515 S.W.3d at 303-04 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983))
(internal quotations omitted). Under the totality-of-the-circumstances analysis, the
informant’s basis of knowledge and veracity or credibility are no longer separate and
independent considerations but are “‘closely intertwined issues that may usefully
illuminate the commonsense, practical question [of] whether there is probable cause to
believe that contraband or evidence is located in a particular place.’” Id. at 308
(quoting Gates, 462 U.S. at 230) (internal quotations omitted). Barebones affidavits
including only conclusory statements remain insufficient, and independent police
corroboration of the information provided by the informant continues to add value to the
affidavit. Id. at 307-08.

       The affidavit supporting the search warrant in this case contains the following
[portions in all capital letters are shown exactly as they appear in the affidavit]:

        The Affiant has received information from an informant who has
        previously given law enforcement information that le[d] to the discovery
        of criminal evidence or which led to a conviction, as follows:

        THE PROVEN RELIABLE COOPERATING INDIVIDUAL USED IN
        THIS SEARCH WARRANT HAS GIVEN INFORMATION IN THE
        PAST THAT      HAS   LED TO   THE RECOVERY OF
        METHAMPEHTAMINE. THE RECOVERIES HAVE ALSO LED TO
        NUMEROUS ARRESTS AND CONVICTIONS OF THOSE IN
        POSSESSION OF SAID DRUGS.

        *    *      *

        The Affiant believes that [Defendant] has possession of the above
        described property because THE AFFIANT, ERIC SMITH, IS A POST
        CERTIFIED POLICE OFFICER WORKING FULL TIME WITH THE

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        WEAKLEY COUNTY SHERIFF’S DEPARTMENT AS AN
        INVESTIGATOR WITH 17 YEARS OF LAW ENFORCEMENT
        EXPERIENCE. THE AFFIANT HAS BEEN INVOLVED WITH
        SEARCH WARRANTS OBTAINED FROM THE WORD OF THE
        COOPERATING INDIVIDUAL TALKED ABOUT ABOVE AND
        KNOWS THEIR WORD TO BE PROVEN RELIABLE. WITHIN 72
        HOURS PRIOR TO THE SWEARING OF THIS SEARCH
        WARRANT A PROVEN RELIABLE COOPERATING INDIVIDUAL
        WAS AT THE RESIDENCE OF [DEFENDANT] AT 12495
        HIGHWAY 45 IN MARTIN TN AND DID WITNESS THE
        SCHEDULE II NARCOTIC METHAMPHETAMINE. [DEFENDANT]
        WAS IN POSSESSION OF SAID METHAMPHETAMINE THE
        INFORMANT       KNOWS      [DEFENDANT]     TO SELL
        METHAMPHETAMINE FROM THIS RESIDENCE. ACCORDING
        TO THE WEAKLEY COUNTY ELECTRIC MUNICIPAL THE
        ELECTRIC IS IN THE NAME OF ROSETTA WILSON.

      In considering whether the affidavit used to obtain the search warrant in this case
was sufficient, the trial court made the following findings:

        The Court - - I think I previously said on the record that I didn’t
        consider, in granting the search warrant, that the informant knows the - -
        knows [Defendant] to sell methamphetamine from the residence. That
        would be clearly fluff in this warrant. And the Court didn’t consider
        that.

        What the Court has to consider in granting a search warrant, and what
        the Court did consider in this case, in granting the search warrant
        originally, was whether there is enough evidence to establish that - - a
        fair probability that there’s contraband in the place to be searched. And
        it’s a less rigid case now. Although - - because of Tuttle. But what we
        had in this case is that, within the four corners of the warrant, we had a
        cooperating individual. But, using commonsense, the Court knows that
        it’s a criminal informant from the standpoint that very few citizen
        informants have given information that led to numerous arrests and
        convictions for methamphetamine. So, the veracity is established by
        giving the past information.

        The basis of knowledge is this individual saw the methamphetamine
        within the residence within the 72 hours.             He knows what
        methamphetamine is because he’s done several arrests - - or done - -
        provided information in the past. I probably have a little problem with
        the officer’s testimony that he uses 72 hours to protect the informant. I

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        don’t think that’s the legal standard. I think the 72 hours is to verify that
        the information is not stale. Anything beyond 72 hours could be
        considered stale unless there’s some corroborating testimony, which the
        officer talked about. But the fact that he always uses 72 hours to protect
        the identity of the informant, that’s incorrect. And if that’s what he
        believes, that’s incorrect.

        And in this case, as it stands today, the Court is - - the Court believes
        that there is sufficient proof to substantiate the warrant. That the fact
        that they saw this particular individual sell methamphetamine, advised
        the officer that it was present leads me to believe that there was a fair
        probability that contraband or evidence of a crime was to be found inside
        the residence and that the evidence was not stale at that time. So I’m
        going to - - on the basis of that I’m denying the motion.

        Upon a review of the totality of the circumstances, we conclude that the trial court
did not err in its determination that the information contained in the affidavit was
sufficient to establish probable cause for the issuance of a search warrant. The affidavit
establishes the confidential informant’s basis of knowledge in that he knew Defendant
sold methamphetamine and that he had been at Defendant’s residence within the last
seventy-two hours, and while at the residence had seen methamphetamine in Defendant’s
possession. This is enough to establish a sufficient “nexus between the criminal activity,
the place to be searched, and the items to be seized.” Tuttle, 515 S.W.3d at 301; State v.
Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000); State v. Allen Jean Stephens, No.
W2004-00531-CCA-R3-CD, 2005 WL 1541850, at *2-3 (Tenn. Crim. App. June 23,
2005)(finding of probable cause where affidavit stated that a confidential informant “is
known to affiant to have made a purchase of Schedule II crack cocaine from Defendant’s
residence from Defendant within the past 72 hours).

       Additionally, the confidential informant’s credibility is shown by the statement in
the affidavit that the confidential informant had given past information that led to
numerous arrests and convictions for methamphetamine. See e.g., State v. Stephen
Udzinski, Jr., No. 01C01-9212-CC-00380, 1993 WL 473308, at *3 (Tenn. Crim. App.
Nov. 18, 1993)(“Thus an affidavit which recited that an informant had previously given
law-enforcement information that led to the discovery of a murder weapon or a shipment
of cocaine would sufficiently establish the informant’s reliability.”). Defendant
complains that the affidavit did not provide specific details about how the confidential
informant knew what methamphetamine was, the relationship between the confidential
informant and Defendant, or the precise location of the methamphetamine inside the
house. However, this court has held that “[t]he requisite volume or detail of information
needed to establish the informant’s credibility is not particularly great.” State v. Lowe,
949 S.W.2d 300, 305 (Tenn. Crim. App. 1996); See also State v. Sales, 393 S.W.3d 236,
240 (Tenn. Crim. App. 2012).

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        The trial court was correct in denying Defendant’s motion to suppress. Defendant
is not entitled to relief on this issue.

                                   CONCLUSION

      Based on foregoing analysis, we affirm the judgment of the trial court.


                                 ____________________________________________
                                 THOMAS T. WOODALL, JUDGE




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