                                                                                         05/02/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 20, 2019

           STATE OF TENNESSEE v. GREGORY BRONSON, JR.

               Appeal from the Circuit Court for Montgomery County
                No. 63CC1-2017-CR-288 Jill Bartee Ayers, Judge



                            No. M2018-01172-CCA-R3-CD


A Montgomery County grand jury indicted the Defendant, Gregory Bronson, Jr., for two
counts of felonious possession of marijuana and one count of unlawful possession of a
firearm. The Defendant filed a pretrial motion to suppress the evidence resulting from
the search of his residence. The trial court denied the Defendant’s motion, and, after his
request for interlocutory appeal to this court was denied, the Defendant pleaded guilty to
the indicted charges and 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 by
law enforcement was lawful. After review, 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 NORMA
MCGEE OGLE and J. ROSS DYER, JJ., joined.

Sheri S. Phillips and Erin S. Poland, Clarksville, Tennessee, for the appellant, Gregory
Bronson, Jr.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and Arthur F. Bieber,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                I. Facts and Background

        This case arises from the discovery of a package containing sealed bags of
marijuana at a FedEx sorting facility; the package was addressed to the Defendant at a
residence that he shared with Kristen Tuten. An anticipatory search warrant was obtained
for the residence based on the “triggering event” of “an occupant of the residence tak[ing]
possession of” the marijuana package. The package was addressed to the Defendant.
Posing as a neighbor, law enforcement attempted to deliver the package to the
Defendant’s residence. Ms. Tuten denied that the package belonged to her but offered to
return it to FedEx and left it on the front porch. Based on her receipt, law enforcement
executed the search warrant and searched the residence wherein they recovered several
weapons.

        Before trial, the Defendant filed a motion to suppress, contending that the search
of his residence was unlawful because the search warrant authorized the search after an
occupant of the residence took possession of the package, which he claims Ms. Tuten did
not do. The trial court held a hearing, during which the following evidence was
presented: Agent Kyle Darnell testified that a package located at a Nashville FedEx
facility had broken open during sorting. A “large quantity” of drugs was discovered
inside the package and law enforcement was called. The package was addressed to the
Defendant at a mailing address where he was listed as a tenant. Another agent responded
to the Defendant’s address and determined that a vehicle in the driveway belonged to the
Defendant, based on its license tag. Based on the contents of the package, Agent Darnell
sought an “anticipatory search warrant.” He explained that an anticipatory search
warrant has a “triggering event before the warrant is actually served.” Agent Darnell
testified that in the situation of a package, the “triggering event” would be someone
inside a structure taking possession of the package.

       Agent Darnell identified the anticipatory search warrant he wrote for the
Defendant’s residence, which stated the following directive: “You are therefore
commanded to make an immediate search on the premises after an occupant of the
residence takes possession of the package. . . .” He stated that the triggering event in this
case was a “person taking possession of the package.” Agent Darnell testified that he
went to the Defendant’s residence with the package and knocked on the front door. Ms.
Tuten answered the door with a child in her arms. Agent Darnell set the package down
on the residence’s front porch; it did not cross the threshold of the door and Ms. Tuten
never stepped out onto the porch. Agent Darnell told Ms. Tuten that the package had
been delivered to the wrong address. Ms. Tuten replied that the package did not belong
to her. Agent Darnell left the residence, leaving the package on the front porch. Agent
Darnell testified that Ms. Tuten said she would return the package to FedEx but that she
never picked up or touched the package. He clarified Ms. Tuten’s statement: “If you
leave it here, I’ll take it back to FedEx for you.”

      Asked whether these facts amounted to Ms. Tuten exercising control over the
package, Agent Darnell said that they did. Ten to fifteen minutes later, law enforcement
executed a search of the residence; this occurred after a discussion between Agent
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Darnell and his colleagues as to whether Ms. Tuten had taken possession of the package.
He stated that it was a “unique” situation and agreed that he questioned whether or not it
was appropriate to execute the search warrant, based on the fact that the package
remained on the front porch. He clarified that he posed as a neighbor when he brought
the package to the Defendant’s residence. A recording of Agent Darnell’s interaction
with Ms. Tuten and the “controlled delivery” of the package was played aloud. The
recording confirmed that Ms. Tuten said, “That’s not ours” when presented with the
package. Agent Darnell further stated that Ms. Tuten said, “No it’s not mine, but I will
take it back to FedEx, though. It’s not my box.”

       The trial court denied the Defendant’s motion to suppress, making the following
findings:

              [T]he Court finds that possession is not the same as ownership, and
       that Ms. [Tuten] acknowledged that [the package] had her address on it, and
       that she had the ability to exercise control over it. And that she was, in fact,
       going to do that and take it back to FedEx, even though it was left on the
       porch and not taken into the house.

              So, based on that, the Court, in interpreting this issue about what is
       possession, finds that they did have possession and that was the triggering
       event that allowed the search to take place under the warrant.

       Thereafter, the Defendant sought an interlocutory appeal with this court; his
request was denied. The Defendant offered a plea of guilty to possession of marijuana
with the intent to deliver, and the remaining charges were dismissed. The trial court
entered the plea and sentenced the Defendant to three years of probation. The Defendant
reserved for appeal the following certified question of law:

       whether the trial court erred in denying [the] Defendant’s Motion to
       Suppress the search and fruits from the execution of an anticipatory search
       warrant issued on March 17, 2016 by finding that the “triggering event” of
       possession occurred prior to the execution of the search warrant?

(emphasis in original).

       Both parties agree that the certified question of law is dispositive of the case.

                                       II. Analysis
                              A. Certified Question of Law
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       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
       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
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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 pleaded guilty; the judgment form referenced the certified question; and
the question included on the judgment form is stated so as to identify clearly the scope
and limits of the legal issue reserved and is dispositive of the case. The parties agreed
that the question was dispositive of the case. Thus, we conclude that the issue is properly
before this court.

                                  B. Legality of Search

        The Defendant contends that the search of his residence was illegal because the
execution of the anticipatory search warrant was “conditioned upon an occupant of the
residence taking possession of the package” containing the marijuana. He contends that
the attempted delivery of the package by Agent Darnell to Ms. Tuten did not amount to
Ms. Tuten’s possessing the package because Ms. Tuten left the package on the front
porch of the residence. The State responds that Ms. Tuten exercised “dominion and
control” over the package, satisfying the requirements of “possession,” and that the
anticipatory search warrant was executed legally. We agree with the State.

       When this Court reviews a trial court’s ruling on a motion to suppress,
“[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). The party prevailing at the
suppression hearing is afforded the “strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.” State v.
Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression
hearing are upheld unless the evidence preponderates against those findings. See id.
However, the application of the law to the facts found by the trial court is a question of
law and is reviewed de novo. Walton, 41 S.W.3d at 81; State v. Crutcher, 989 S.W.2d
295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

      The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures, and “‘article 1, section 7 [of the Tennessee
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Constitution] is identical in intent and purpose with the Fourth Amendment.’” State v.
Downey, 945 S.W.2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Tenn. 6, 423
S.W.2d 857, 860 (1968)). The analysis of any warrantless search must begin with the
proposition that such searches, and resulting seizures, are per se unreasonable under the
Fourth Amendment to the United States Constitution and article 1, section 7 of the
Tennessee Constitution. This principle against warrantless searches is subject only to a
few specifically established and well-delineated exceptions. See Katz v. United States,
389 U.S. 347, 357 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980).
Evidence discovered as a result of a warrantless search or seizure is subject to
suppression unless the State establishes that the search or seizure was conducted pursuant
to one of the narrowly defined exceptions to the warrant requirement. State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000).

       The use of “anticipatory” search warrants, though somewhat rare, is recognized by
our supreme court. Ricardo Davidson v. State, No. M2013-01645-CCA-R3-PC, 2014
WL 3765710, at *17 (Tenn. Crim. App., at Nashville, July 31, 2014) (citing State v.
Coker, 746 S.W.2d 167, 172 (Tenn. 1987)), perm. app. denied (Tenn. Nov. 20, 2014).
Such warrants do not violate the fourth amendment if they are executed following
delivery of the contraband. State v. Wine, 787 S.W.2d 31, 33 (Tenn. Crim. App. 1989).
“The affidavit should inform the magistrate that the known or suspected contraband will
be delivered in the immediate future and the basis for the affiant’s knowledge that the
item will be delivered.” Id. (citing United States v. Outland, 476 F.2d 581 (6th Cir.
1973)). For example, the Coker Court found the affidavit in support of the anticipatory
warrant to be sufficient where the affiant specifically alleged how the item to be seized
would arrive on the premises to be searched. Coker, 746 S.W.2d at 172. It is also
recommended that a magistrate who issues an anticipatory search warrant condition its
execution upon the occurrence of a specified event, such as the delivery of the targeted
package. Wine, 787 S.W.2d at 33; see generally, 2 W. LAFAVE, SEARCH AND SEIZURE §
3.7(c) at 96 (2nd Ed. 1987).

       In Tennessee, possession may be either actual or constructive. State v. Shaw, 37
S.W.3d 900, 903 (Tenn. 2001). A person constructively possesses contraband when he or
she has “the power and intention at a given time to exercise dominion and control over
[the contraband] either directly or through others.” Id. at 903 (quoting State v. Patterson,
966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)). Said differently, constructive possession
is the “ability to reduce an object to actual possession.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987).

       The evidence presented at the suppression hearing was that, when presented with
the package containing narcotics, Ms. Tuten accepted the package being placed on her
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front porch and offered to take the package back to FedEx. The trial court concluded that
this action amounted to possession, because Ms. Tuten’s actions gave her “the ability to
exercise control” over the package, despite Ms. Tuten denying being the owner or
recipient of it. The trial court concluded that Ms. Tuten’s actions constituted the
necessary “triggering event” to allow the search warrant to be executed.

       We conclude that the evidence does not preponderate against the trial court’s
findings. As we have pointed out, constructive possession is defined as “the power and
intention at a given time to exercise dominion and control over [the contraband] either
directly or through others” or, restated, the “ability to reduce an object to actual
possession.” Shaw, 37 S.W.3d at 903; Cooper, 736 S.W.2d at 129. The evidence
presented at the suppression hearing was that Ms. Tuten had the intention and power to
exercise control of the package; indeed, she assumed responsibility for the package and
offered to return it to FedEx. Further, her assumption of the responsibility for the
package gave her the “ability to reduce [the package] to actual possession.” Accordingly,
we conclude that the evidence does not preponderate against the trial court’s finding that
Ms. Tuten had constructive possession of the package sufficient to warrant the execution
of the search warrant. We affirm the trial court’s judgment denying the Defendant’s
motion to suppress and therefore, we affirm the judgment of conviction.

                                    III. Conclusion

     After a thorough review of the evidence and relevant authorities, we affirm the
judgment of the trial court.

                                                _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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