                                                                                      04/30/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs March 5, 2019

               STATE OF TENNESSEE v. CAMERON MARTIN

                 Appeal from the Circuit Court for Madison County
                        No. 17-173 Donald H. Allen, Judge
                     ___________________________________

                          No. W2018-01085-CCA-R3-CD
                      ___________________________________

The Madison County Grand Jury indicted Cameron Martin, Defendant, for four counts of
convicted felon in possession of a handgun. After the trial court denied his motion to
suppress, Defendant pled guilty pursuant to a plea agreement to one count of possession
of a weapon by a convicted felon, reserving a certified question of law. The trial court
sentenced Defendant to five years as a Range I standard offender and dismissed the
remaining counts. We affirm the judgment of the trial court.


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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT H. MONTGOMERY, JR., JJ., joined

George Morton Googe, District Public Defender; and Gregory D. Gookin, Assistant
District Public Defender, for the appellant, Cameron Martin.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION

       Sergeant Richard Newbill, supervisor of the Jackson Police Department (JPD)
gang unit, received information from a confidential source concerning illegal activity
occurring inside a residence at 106 Melwood Street in Jackson. Based on that
information, Sergeant Newbill prepared an affidavit and obtained and executed a search
warrant at the residence.
       Defendant filed a motion to suppress evidence seized during the execution of the
search warrant, and the trial court conducted a suppression hearing on February 12, 2018.

       Sergeant Newbill testified that when he executed the warrant and entered the
residence, he saw Defendant running from the living room to what was determined as “a
back storage area.” He said there “was a very strong smell associated with marijuana.”
Sergeant Newbill said Defendant, Defendant’s mother, his mother’s boyfriend and a
juvenile female were in the residence. From the living room the officers seized a 9
millimeter handgun, a medicine bottle with marijuana residue inside, a marijuana grinder,
and a cell phone. From other areas of the residence, they seized digital scales, two
handguns, a small amount of marijuana, a marijuana pipe, and Ziploc baggies. Defendant
was arrested and eventually charged with possession of the handguns.

       Sergeant Newbill interviewed Defendant at the Madison County Jail. According
to Sergeant Newbill, after he read the Defendant his Miranda rights, Defendant “took
responsibility” for the handguns and the marijuana.

       The trial court entered a written order denying the motion on February 14, 2018,
finding that the search warrant “was based upon probable cause made out within the four
corners of [Sergeant Newbill’s] Affidavit” and that “[b]ased on the totality of the
circumstances, the resulting [s]earch [w]arrant in this case was properly issued.”

        Defendant pled guilty pursuant to a plea agreement to one count of possession of a
weapon by a convicted felon, reserving a certified question of law. On May 14, 2018, the
trial court entered an order based on the “agreement of the Court, the State, and [ ]
Defendant,” finding “that the following question of law is dispositive of the case and
should be expressly certified for appellate review:”

      Whether the trial court erred in denying [ ] Defendant’s Motion to Suppress
      Evidence regarding the sufficiency of the affidavit utilized to gain a search
      warrant against [ ] Defendant, in violation of [ ] Defendant’s Fourth
      Amendment rights under the United States Constitution, and Article I,
      Section 7 of the Tennessee Constitution?

        On appeal, Defendant claims the trial court erred in denying the motion to
suppress because the search warrant affidavit failed to establish probable cause, and
therefore, the search violated his federal and state constitutional rights. Specifically,
Defendant claims that “[t]he confidential informant only provided information that he/she
had seen [Defendant] in possession of drugs, digital scales, and money, and that
[Defendant] was observed selling narcotics at 106 Melwood.” Defendant claims that
“[t]he informant did not provide more specific information, such as how many sales were
                                          -2-
allegedly committed or where in the residence [Defendant] was to have been in
possession of the various items of contraband.” Defendant also claims “the reliability of
the informant was not established.”

       The State claims the certified question of law “fails to sufficiently identify the
scope and limits of the legal issue reserved for appeal.” Alternatively, the State claims
that “the affidavit provided a substantial basis for a finding of probable cause where it
established the reliability of the confidential source, described the place and nature of
ongoing illegal activity, and specifically identified Defendant.”

       Tennessee Rule of Criminal Procedure 37(b) sets out the exacting requirements for
a defendant to properly reserve a certified question of law for appellate purposes. We
determine that the certified question was properly reserved pursuant to the requirements
of Rule 37(b)(1)(A) and State v. Preston, 759 S.W.2d 647 (Tenn. 1988). Defendant
entered a guilty plea pursuant to a plea agreement under Rule 11(c) and, with the consent
of the State and the trial court, explicitly reserved a certified question that is dispositive
of the case. See Rule 37(b)(1)(A). The “Order Reserving Certified Question of Law”
(the “Order”) “contain[ed] a statement of the certified question of law” and was entered
on May 14, 2018, before the notice of appeal was filed as required by Rule
37(b)(1)(A)(i), the “question of law as stated in” the Order “identifies clearly the scope
and limits of the legal issue reserved” as required by Rule 37(b)(1)(A)(ii), the Order
“reflects that the certified question was expressly reserved with the consent of the state
and the trial court,” see Rule 37(b)(1)(A)(iii), and the Order “reflects that [Defendant],
the [S]tate, and the trial court are of the opinion that the certified question is dispositive
of the case as required by Rule 37(b)(1)(A)(iv).

      We agree with the State that the affidavit provided a substantial basis for the
magistrate to find of probable cause for issuance of the warrant.

      Because the certified question is limited in scope to the issuance of the warrant,
we “‘may consider only the affidavit and may not consider other evidence provided to or
known by the issuing magistrate or possessed by the affiant.”’ State v. Tuttle, 515
S.W.3d 282, 299 (Tenn. 2017) (quoting State v. Henning, 975 S.W.2d 290, 295 (Tenn.
1998)).

       Sergeant Newbill, the affiant, swore that “he ha[d] probable cause for believing
and d[id] believe” that Defendant was in possession of “illegal controlled substances:
marijuana, drug paraphernalia, books, ledgers, tapes, papers, records, pictures, electronic
media and other items which tend to memorialize narcotic trafficking.” Sergeant Newbill
affirmed that he

                                            -3-
        ha[d] obtained reliable information from [a] reliable confidential source that
        ha[d] observed marijuana inside the residence of 106 Melwood Street
        with[]in the last 72 hours. The confidential source advised that [Defendant]
        [was] in possession of large amounts of marijuana, digital scales, and a
        large quantity of U.S. Currency. This confidential source ha[d] also
        observed [Defendant] selling narcotics at this location within the last 72
        hours as well as numerous times in the past. The confidential source ha[d]
        been proven reliable by being responsible for providing information leading
        to the arrest of at least 20 individuals for outstanding warrants, narcotic,
        and weapon violations. This confidential source [wa]s responsible for the
        recovery of 4.5 grams of cocaine, over 310 grams of marijuana, at least 50
        ecstasy pills[,] 3 xanax pills, 1 hydrocodone pill, 11 firearms and a
        prohibited weapon. Out of the 20 individuals at least 15 have been
        convicted and other cases are pending. According to the Jackson Energy
        Authority[,] the utilities at 106 Melwood [we]re in Syneatra Albeata’s
        name. The confidential source advised that Syneatra Albeata [wa]s
        [Defendant]’s mother and that [Defendant] . . . reside[d] at 106 Melwood
        Drive.1 Your Affiant . . . also corroborated through JPD reports that
        Syneatra Albeata [wa]s [Defendant]’s mother.

       Sergeant Newbill identified the premises to be searched as “106 Melwood Street
in Jackson, TN 38305 and all sheds, outbuildings, garages, appurtenance, and vehicles
that is associated with the said property.” The residence at 106 Melwood Street was
described in detail leaving no reasonable doubt or confusion about the location of the
premises to be searched.2 Based on the affidavit, the magistrate found probable cause to

        1
          The address is shown as “106 Melwood Street” nine times in the affidavit and one time as “106
Melwood Drive. Based on the totality of the information contained in the affidavit, we determine that the
use of the word “drive” was an innocent mistake that is “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 (1978)); see Tuttle, 515 S.W.3d at 308.
        2
         The search warrant was issued for 106 Melwood Street. The warrant described the property to
be searched as:

        106 Melwood Street Jackson, TN 38305 and all sheds, outbuildings, garages,
        appurtenance, and vehicles that are associated with that said property. 106 Melwood Street
        is a single family dwelling located situated on the South/West corner of Briarcliff Drive
        and Melwood Street. 106 Melwood Street is constructed of brown brick and tan siding.
        The structure has a black shingle roof with multi-colored shutters. The structure has a
        black wrought iron front storm door and a white interior door which faces north on
        Melwood Drive. The mailbox attached to the property [ ] has the numbers 106 affixed to it
        in black with a white background. When traveling south on Briarcliff Drive, from the stop
        sign at intersection of Briarcliff Drive and Melwood Street, the drive way to 106 Melwood
                                                  -4-
believe Defendant had or is involved in criminal activity and issued the warrant to search
106 Melwood Street for “illegally controlled substances, particularly marijuana, books,
ledgers, tapes, papers, recordings, pictures, electronic media and other items which tend
to memorialize narcotic trafficking.”

       This court must “afford ‘great deference’ to a magistrate’s determination that
probable cause exists.” Tuttle, 515 S.W.3d at 300. Probable cause requires “more than a
mere suspicion[,]” State v. Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005), “but less than
absolute certainty.” State v. Reynolds, 504 S.W.3d 283, 300 (Tenn. 2016). “Probable
cause, as its name implies, deals with probabilities.” Tuttle, 515 S.W.3d at 300. “These
[probabilities] are not technical; they are the factual and practical considerations of
everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar
v. United States, 338 U.S. 160, 175 (1949), see Tuttle, 515 S.W.3d at 300.

       Sergeant Newbill received information from a confidential source, who had
provided reliable information on several prior occasions. The source’s information was
not stale; the source said that he observed Defendant selling narcotics at 106 Melwood
Street within seventy-two hours of the execution of the search warrant. Sergeant
Newbill’s affidavit, when “viewed in a commonsense and practical manner,” provided
the issuing magistrate probable cause for determining that a search of 106 Melwood
Street would uncover evidence of criminal activity. See Tuttle, 515 S.W.3d at 310.

       The trial court did not err in denying the motion to suppress the evidence seized
during the search. The judgment of the trial court is affirmed.



                                                     ____________________________________
                                                     ROBERT L. HOLLOWAY, JR., JUDGE




       Street will be directly across Melwood Street s[l]ightly offset to the right, with the front of
       the residence being straight ahead.

         We determine that the one time use of “Drive” in the warrant was also an innocent mistake that
did not invalidate the warrant.
                                                   -5-
