        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 11, 2011 Session

                STATE OF TENNESSEE v. JAMES F. MASON

            Direct Appeal from the Circuit Court for Rutherford County
                      No. F-64108A      David Bragg , Judge




                No. M2010-01350-CCA-R3-CD - Filed March 11, 2011


This is a direct appeal from a guilty plea pursuant to Rule 37(b)(2) of the Tennessee Rules
of Criminal Procedure. The Defendant, James F. Mason, pleaded guilty to possession of
methamphetamine with the intent to deliver. As part of his plea agreement, the Defendant
attempted to reserve a certified question of law, challenging the trial court’s denial of his
motion to suppress the evidence seized during the search of his residence. Because the
Defendant has failed to properly certify his issue for review, the appeal is dismissed.

                     Tenn. R. App. P. 3 Appeal; Appeal Dismissed

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and
R OBERT W. W EDEMEYER, JJ., joined.

John W. Price, Murfreesboro, Tennessee, for the appellant, James F. Mason.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William Whitesell, District Attorney General; and Jude Santana, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                     Factual Background
        The facts are not in dispute. On February 3, 2009, officers executed a search warrant
at the Defendant’s residence, 1073 Cranor Road. Based upon items found during the search,
a Rutherford County grand jury indicted the Defendant (along with a co-defendant, Brandi
T. Ygleias) for possession of methamphetamine with intent to deliver, possession of drug
paraphernalia, possession of marijuana, being a convicted felon in possession of a weapon,
and initiating the process to manufacture methamphetamine.
        Thereafter, the Defendant filed a motion to suppress the evidence found during the
search. The crux of the Defendant’s argument was that the affidavit given in support of the
warrant was insufficient to establish probable cause. However, the written motion was not
clearly stated, framing the issues as follows: (1) the property to be searched is described only
as a one story structure with gray siding and red shingles, the property is not owned or
occupied by the Defendant, and the charges do not concern any of the property actually
seized during the search; (2) the affidavit, which indicates that the search is to be made to
recover stolen property, does not refer to or describe the stolen property to be seized; (3)
although the affidavit states that the Defendant has been charged with burglary and theft,
neither a date of these crimes nor a description of what property was stolen is provided, the
fact that the warrants have been issued is no indication of guilt or that the Defendant was in
possession of methamphetamine or stolen property, and the Defendant’s prior criminal
convictions are not connected in the affidavit with the present charges; (4) the results of a
prior April 17, 2008 search of the property does not reflect on the current status of the
property, and that warrant was issued without probable cause and was signed by a magistrate
from another county; (5) a reported fire on the property in August 2008 is not connected in
the affidavit with the current alleged possession of stolen property or methamphetamine; (6)
the affidavit did not contain sufficient facts to satisfy the two-pronged test of the confidential
informant’s basis of knowledge and credibility of the informant; and (7) ownership of the
burned vehicle on the property was not established, the affiant did not state that he was
investigating the theft of a vehicle, and there is no factual link between the burned trash items
and the Defendant or that indicates that they were used to manufacture methamphetamine.

       After a suppression hearing, the trial court denied the motion to suppress and entered
findings of fact and conclusions of law as follows:

               A. The affidavit in support of the warrant states that the affiant, due to
       his information and training, believes that activity on the premises is consistent
       with the manufacture of methamphetamine. This information is sufficient to
       provide probable cause that illegal activity has recently occurred or is
       occurring on the property.

                      1. The affiant particularly describes piles burning aerosol
               cans, gas containers and plastic jugs, items consistent with
               equipment found in a laboratory to manufacture
               methamphetamine.

                       2. The affiant gained this information from a confidential
               informant, and the affiant states no reason for the informant to
               falsify or fabricate the information provided to the affiant.

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             B. The warrant’s affidavit provided sufficient information to search the
       premises of the property described in the warrant and affidavit.

                      1. The warrant states the premise to be searched is 1073
                Cranor Road.

                        2. The warrant specifically states this search includes
                “all the buildings, outbuildings and vehicles under the control”
                of the defendants.

              C. The Supreme Court of Tennessee previously held a search warrant
       which describes the search of a principle [sic] house reasonably included the
       authorized search of a building “clearly appurtenant to and a part of” the
       premises. Peters v. State, 215 S.W.2d 822 (Tenn. 1948), citing Seals v. State,
       11 S.W.2d 879 (Tenn. 1929).


        On May 21, 2010, the Defendant pleaded guilty to possession of methamphetamine
with intent to deliver, a Class B felony. See Tenn. Code Ann. § 39-17-417. The remaining
charges were dismissed.1 As part of the plea agreement, the Defendant received a sentence
of ten years as a Range I, standard offender, with the Defendant to serve one year followed
by ten years of probation. Moreover, as part of the agreement, the Defendant explicitly
reserved a certified question of law: “Whether the magistrate had probable cause in the
issuance of the search warrant in this case.”

       The Defendant filed a timely notice of appeal. In his brief on appeal, the Defendant’s
general argument is again whether the magistrate had probable cause to issue the search
warrant. However, the Defendant also mentions such issues as whether there was a sufficient
nexus established between the subject property and criminal activity, whether the informant’s
basis of knowledge or veracity were established, and whether the facts were stale or there
was a lack of timeliness. The Defendant then details numerous deficiencies in the facts
provided in the affidavit and how those facts fail to corroborate that a crime had been
committed or that the proceeds of a crime were present on the subject property. The State
argues initially on appeal that the certified question of law is simply too broad and
ambiguous for appellate review. We must agree with the State.




       1
           Based on the Defendant’s plea, the charges against his co-defendant were dismissed.

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                                        Analysis
       The Defendant has attempted to reserve his certified question pursuant to Rule
37(b)(2)(A) of the Tennessee Rules of Criminal Procedure, which 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:

              (i)[T]he 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) [T]he 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) [T]he judgment or document reflects that the certified question was
       expressly reserved with the consent of the state and the trial court; and

              (iv) [T]he 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[.]

See also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston, 759
S.W.2d 647, 650 (Tenn. 1988).

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

       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


       2
         The Tennessee Rules of Criminal Procedure were amended subsequent to Preston, said changes
becoming effective July 1, 2006. See Compiler’s Notes, Tenn. R. Crim. P. (2006). As part of this
undertaking, numerous sections and/or subparts of various rules were renumbered.

                                                -4-
       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 Tenn. R. Crim. P. 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. Of course, the
       burden is on defendant to see that these prerequisites are in the final order and
       that the record brought to the appellate courts contains all of the proceedings
       below that bear upon whether the certified question of law is dispositive and
       the merits of the question certified. No issue beyond the scope of the certified
       question will be considered.

Preston, 759 S.W.2d at 650); see also State v. Pendergrass, 937 S.W.2d 834, 836-37 (Tenn.
1996). The Defendant bears the burden of “reserving, articulating, and identifying the issue.”
Pendergrass, 937 S.W.2d at 838.

       The certified question is framed as: “Whether the magistrate had probable cause in
the issuance of the search warrant in this case.” We must conclude that this overly broad
question as reserved violates the mandates announced in Preston.

        The Defendant does not expressly identify in the question itself the reasons he
believed probable cause to be insufficient. The question as posed does not mention a
confidential informant, reliability, staleness, or a sufficient nexus, all of which would
presumably be central to the Defendant’s claim. As framed, the question is quite non-
specific and fails to clearly identify the scope and limits of the legal issue reserved.
Moreover, based upon testimony received at the suppression hearing, the trial court ruled on
only a few of the issues outlined in the lengthy motion to suppress: the affidavit was
sufficient to provide probable cause that illegal activity had recently occurred or was
occurring on the property; the officer gained his information from a confidential informant
who had no reason to falsify or fabricate information; and the warrant authorized the search
of all buildings, outbuildings, and vehicles under the control of the Defendant. Given the
various alleged errors pointed out by the Defendant during the course of these proceedings,
review of the question as presented would require a dissertation on the complex issue of



                                               -5-
probable cause. We are without jurisdiction to review the merits of the Defendant’s claim
because he has failed to properly reserve his certified question of law.

                                         Conclusion
       After carefully reviewing the record and the pleadings in this case, we conclude that
the Defendant has failed to properly frame his certified question of law. Accordingly, this
Court has no jurisdiction to entertain the appeal, and the appeal is dismissed.




                                                  _________________________________
                                                  DAVID H. WELLES, JUDGE




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