                                                    FILED
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE
                                                     February 5, 1998
                           AUGUST 1997 SESSION
                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
STATE OF TENNESSEE,                  )
                                     )
             Appellee,               )    C.C.A. No. 01C01-9610-CC-00431
                                     )
vs.                                  )
                                     )    Dickson County
STEPHEN J. UDZINSKI and              )
DONNA STOKES a/k/a                   )
DONNA STORY,                         )    Honorable Robert E. Burch, Judge
                                     )
             Appellants.             )    (Certified Question of Law)
                                     )



FOR THE APPELLANT:                        FOR THE APPELLEE:

DALE QUILLEN                              JOHN KNOX WALKUP
MICHAEL J. FLANAGAN                       Attorney General & Reporter
Attorneys at Law
95 White Bridge Rd., Ste. 208             DARYL J. BRAND
Nashville, TN 37205                       Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493

                                          DAN M. ALSOBROOKS
                                          District Attorney General

                                          ROBERT WILSON
                                          Assistant District Attorney General
                                          P.O. Box 580
                                          Charlotte, TN 37036




OPINION FILED: ____________________


AFFIRMED

CURWOOD WITT
JUDGE
                                      OPINION

              The defendants, Stephen J. Udzinski and Donna Stokes a/k/a Donna

Story, present a certified question of law following Udzinski’s conditional guilty plea

to a Class E felony of possession of marijuana for resale and Stokes’s guilty plea

to a Class A misdemeanor for possession of marijuana. Udzinski entered judicial

diversion, and Stokes received a conviction and a suspended sentence of eleven

months and twenty-nine days. Both defendants attempted to reserve the right to

pursue a certified question of law of whether the search warrant under which

Udzinski's house was searched was supported by probable cause. In this appeal,

the defendants present that question, and the state raises the issue of whether the

defendants have properly preserved the question for our review. For the reasons

explained below, we affirm the judgment of the trial court on the suppression issue

raised by the defendants’ certified question.



              In 1991, a search warrant was issued for a house owned by Udzinski.

Upon execution of the warrant, contraband was discovered. Udzinski was thereafter

charged with possession of a schedule VI drug for resale and possession of drug

paraphernalia. He successfully challenged the validity of the search warrant in the

trial court, and the state's appeal to this court was unsuccessful. State v. Stephen

Udzinski, Jr., No. 01C01-9212-CC-00380 (Tenn. Crim. App., Nashville, Nov. 18,

1993). According to the state's position in that proceeding, the suppression of the

evidence had the practical effect of requiring dismissal of the charges against

Udzinski, Stephen Udzinski, Jr., slip op. at 2, although the record in the instant

matter does not reflect the ultimate outcome of the prior proceeding.



              Thereafter on January 30, 1996, a detective of the Dickson County

Sheriff's Department applied to Dickson County Circuit Court Judge Robert Burch

for a search warrant of the defendants’ home. The detective's affidavit claimed

                                          2
there was probable cause to believe there was marijuana in the house and on the

persons of Udzinski and Stokes, and that the defendants possessed the marijuana

with the intent to commit a crime. In his affidavit used to apply for the search

warrant, the detective avowed in pertinent part

       Affiant further says that an informant . . . has told Affiant that within
       the last ten days said informant has been on the premises above
       described and observed MARIJUANA which was being possessed in
       violation of the law.

       Affiant further states that such informant is a Criminal Informant by
       the name of Crystal Griffin who has provided the above information
       to this Affiant against her penal interest. On 1-20-96, Detective Mike
       Holman, Dickson Sheriff's Department[,] observed Crystal Griffin and
       Jamie Neblett meet with a Confidential Informant who was working for
       Affiant. Confidential Informant was wired and Detective Holman
       heard conversation between Crystal Griffin and Confidential Informant
       wherein Crystal Griffin agreed to sell Confidential Informant
       marijuana. Crystal Griffin stated that she would have to travel to
       Charlotte, Tennessee to pick up the marijuana. This information was
       radioed to Affiant who followed Crystal Griffin and Jamie Neblett to
       the above-described residence and observed both enter into the
       residence. Affiant observed that the two stayed for approximately ten
       minutes. They left and were followed by Affiant and Detective
       Holman. Detective Holman observed Crystal Griffin and Confidential
       Informant meet and heard the conversation regarding the sale of
       marijuana between Crystal Griffin and Confidential Informant.
       Detective Holman recovered the marijuana from the Confidential
       Informant. This information was relayed to Affiant by Detective
       Holman. Crystal Griffin was interviewed by Affiant and Crystal Griffin
       admitted to Affiant that she sold marijuana to the Confidential
       Informant on 1-20-96 and that she had gone to the residence of
       Donna Stokes and Stephen Udzinski on that date and that Donna
       Stokes sold her one ounce of marijuana. She stated that Stephen
       Udzinski was present during the transaction. She further stated that
       she observed more marijuana, other than what she purchased, in the
       above-stated residence. She stated that she has purchased
       marijuana from Donna Stokes and Stephen Udzinski several times in
       the past. Further, Affiant would state that on 9-12-91, a search
       warrant was executed on the residence of Stephen Udzinski and
       marijuana was recovered. Affiant obtained this information from the
       District Attorney's files and the executed search warrant. A check
       with 911 records indicated that the above address is the address of
       Stephen Udzinski.

(bold in original) (italics added).



               In the proceedings below, the defendants challenged the inclusion of

the information italicized above pertaining to the results of the 1991 illegal search

                                          3
warrant. See Murray v. United States, 487 U.S. 533, 108 S. Ct. 2529 (1988); Wong

Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416 (1963); State v. Clark,

844 S.W.2d 597 (Tenn. 1992). Following a hearing on the matter, the trial court

upheld the 1996 search warrant, finding probable cause for its issuance with the

offensive reference redacted. Thereafter, Stokes pleaded guilty to a Class A

misdemeanor for possession under Tennessee Code Annotated section 39-17-418,

received a probated sentence, and the court on the same date entered an order that

referenced Udzinski’s conditional plea to possession for resale, a Class E felony,

placing Udzinski on judicial diversion pursuant to Tennessee Code Annotated

section 40-35-313(a)(1). In Stokes’s judgment and the diversion order for Udzinski,

the court’s action is described as being subject to rule 37(b)(i),1 “reserving the right

to appeal [a] certified question of law which is dispositive of the case.” The question

as framed in these documents is: “Whether or not the affidavit in support of the

search warrant establishes probable cause.”



                As a prerequisite to considering the issue of the search warrant's

validity on its merits, we must consider the state's allegation the defendants have

not properly certified their question to this court. Our supreme court has recently

addressed the proper procedure for preserving a question of law under Rule of

Criminal Procedure 37(b)(2). In State v. Pendergrass, 937 S.W.2d 834 (Tenn.

1996), the court reiterated its admonitions from State v. Preston, 759 S.W.2d 647

(Tenn. 1988):

       Regardless of what has appeared in prior petitions, orders, colloquy
       in open court and 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 the
       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


       1
              The trial court necessarily intended to refer to rule 37(b)(2),
paragraph (i) or (iv). See Tenn. R. Crim. P. 37(b)(2)(i), (iv).

                                           4
       searches and the admissibility of statements and confessions, etc.,
       the reasons relied upon by the 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 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 the 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.

Pendergrass, 937 S.W.2d at 836-37 (quoting Preston, 759 S.W.2d at 650)

(emphasis added in Pendergrass).



              The state claims the Stokes judgment and Udzinski order insufficiently

identify the reasons relied on by the defendants in the trial court and passed on by

the trial court, do not state the certified question was "expressly reserved as part of

a plea agreement," do not recite that the state consented to the reservation, and do

not recite that the state agrees the question is dispositive of the case.



              The judgment against Stokes and the order placing Udzinski on

judicial diversion recite, "This plea was entered pursuant to Rule[s] 11 and 37(b)(i)

reserving [the] right to appeal certified question of law which is dispositive of the

case. The certified question is as follows: Whether or not the affidavit in support

of the search warrant established probable cause." Both documents have been

signed by the judge, defense attorney and assistant district attorney general. While

the question could have been more artfully drafted to include the very precise nature


                                          5
of the defendants' challenge to the warrant, to wit, the inclusion of the language

referring to the 1991 search and the existence of probable cause in its absence, we

find the question adequate under relevant supreme court precedent.               See

Pendergrass, 937 S.W.2d 834; Preston, 759 S.W.2d 647; cf. State v. Danny Ray

Dorris, No. 01C01-9606-CR-00242 (Tenn. Crim. App., Nashville, May 21, 1997) (in

factually similar case, this court reviewed question of similar degree of specificity

without comment on its compliance with requirements of Pendergrass or Preston),

pet. for perm. app. filed (Tenn. July 21, 1997); State v. Harris 919 S.W.2d 619

(Tenn. Crim. App. 1995) (certified question of similar specificity sufficient under

Preston). But cf. Harris, 919 S.W.2d at 625-26 (Hayes, J., dissenting) (question of

similar specificity should not be found sufficient under Preston where record

contained neither arguments at suppression hearing nor a specific statement of the

grounds asserted by defendant in his motions to suppress). We do not interpret the

supreme court's requirements so narrowly as to require trial courts and practitioners

to follow a verbatim format in certifying questions to the appellate courts. 2



     I. Appellate Jurisdiction Over Udzinski’s Case (Minority Position).

              The author of this opinion disagrees with his colleagues in their view

that this court has jurisdiction over Udzinski’s appeal. This section, in which Judges

Riley and Walker do not concur, sets forth the minority position that a Tennessee


       2
              As a second preliminary inquiry, this court is required to determine
whether the “dispositive question” presented is, in fact, dispositive. Preston, 759
S.W.2d at 651 (opinion on petition to rehear). Only if the record clearly
demonstrates the dispositive nature of the question may we proceed to its
merits. Preston, 759 S.W.2d at 651. In the case at bar, we find the question
presented actually dispositive of the issue as to both defendants and the crimes
to which they offered their pleas, based upon the indictment charging an offense
was committed on January 30, 1996. In actuality, the state had apparent access
to witnesses (the informant and Crystal Griffin, the person who purchased drugs
from the defendants before selling the same to the informant) whose testimony
could have established the defendants’ guilt of the same offenses on January
20, 1996. However, the illegal possession on that date is beyond the scope of
the indictment as it existed on the date the pleas were made.


                                          6
Rule of Appellate Procedure 37(b) appeal is not available under Tennessee Rule

of Appellate Procedure 3(b) in a case that is being judicially diverted under

Tennessee Code Annotated section 40-35-313.



              Defendant Udzinski offered a conditional plea under Code section 40-

35-313, requesting judicial diversion of his case. Under this diversion procedure,

an eligible defendant-applicant is found guilty or offers a plea of guilty, and “the

court may, without entering a judgment of guilty and with the consent of the

[defendant] . . . defer further proceedings and place the person on probation upon

such reasonable conditions as it may require . . .” Tenn. Code Ann. § 40-35-

313(a)(1)(A) (1997) (emphasis added).          If the candidate for judicial diversion

successfully completes his probation regimen, then upon expiration of the

probationary period the court dismisses the case “without adjudication of guilt.”

Tenn. Code Ann. § 40-35-313(a)(2) (1997) (emphasis added). This process,

“commonly” referred to as judicial diversion, see State v. Talmadge G. Wilbanks,

No. 02C01-9601-CR-00003, slip op. at 5-6 (Tenn. Crim. App., Jackson, Nov. 19,

1996), perm. app. denied (Tenn. 1997), differs from section 40-15-105 pretrial

diversion. In addition to being a determination that is initially made by the trial court

and not the prosecutor, judicial diversion is requested “after pleas of guilty or

verdicts of guilty.” State v. George, 830 S.W.2d 79, 80 (Tenn. Crim. App. 1992).

Under Tennessee Code Annotated section 40-35-313(a)(2), when judicial diversion

is granted, a conviction may later be entered if the defendant fails to fulfill his



probation obligations.



              Rule 37(b) provides that “a[n] appeal lies from any order or judgment

in a criminal proceeding where the law provides for such appeal, and from any

judgment of conviction . . . [u]pon a plea of guilty or nolo contendere” if the other

                                           7
provisions for certification of a dispositive question of law are met under rule

37(b)(2)(i) or (iv), the applicable scenarios of certified questions in the case now

before us. Tenn. R. Crim. P. 37(b) (emphasis added). The rule defines an “appeal”

as a “[d]irect appellate review as a matter of right.” Tenn. R. Crim. P. 37(a)

(emphasis added). Thus, in order for a defendant to claim the benefits of a certified

question under 37(b), the order or judgment from which the appeal is sought must

be appealable “as a matter of right.”



              Rule 3(b), (c), Tennessee Rules of Appellate Procedure, governs the

right to appeal in a criminal case and works in tandem with rule 37(b) of the

Tennessee Rules of Criminal Procedure. Rule 3(b) provides as a general provision

that “an appeal as of right by a defendant lies from any judgment of conviction

entered by a trial court.” Tenn. R. App. P. 3(b). Upon the entry of a judgment of

conviction,3 an appeal as a matter of right may be made after a guilty plea if (1) a

dispositive certified question of law was reserved with the consent of the state and

the trial court, (2) the defendant “seeks review of the sentence and there was no

plea agreement concerning the sentence,” or (3) the issues sought to be appealed

were not, as a matter of law, waived by the submission of the guilty plea. Tenn. R.

App. P. 3(b). These three opportunities for rightful appeals after a guilty plea is

submitted are predicated upon the plea being consummated into a judgment of

conviction. Tenn. R. App. P. 3(b). Rule 37(b) mentions additional provisions for

appeals as a matter of right, emanating from “any orders or judgment . . . where the

law provides” for such an appeal, and such special appeal provisions are given in

Tennessee Rule of Appellate Procedure 3(b), (c). That is to say, in addition to the

general provision for an appeal as a matter of right that is predicated upon the entry

of a conviction, the defendant “may also appeal as of right from an order denying


       3
              “A judgment of conviction shall set forth the plea, the verdict or
findings, and the adjudication and sentence.” Tenn. R. Crim. P. 32(e).

                                          8
or revoking probation, “ as well as from other orders or judgments of criminal

contempt, habeas corpus, extradition, or post-conviction proceedings. Tenn. R.

App. P. 3(b) (emphasis added). With respect to orders dealing with probation, rule

3(c) extends to the state a corresponding right to appeal as a matter of right from

an “order or judgment . . . granting or refusing to revoke probation . . . .” Id. at 3(c)

(emphasis added).



              The Criminal Sentencing Reform Act of 1989, of which section 40-35-

313 is a part, affords appellate review as of right from some, but not all, judicial

diversion decisions. Any proper analysis must begin with a conceptual reckoning.

“Judicial diversion” is an appellation supplied by the courts, probably to distinguish

it from section 40-15-105 pretrial diversion, and the phrase is not used in the

governing statute, section 40-35-313. The statute is presented as a “probation”

statute. Tenn. Code Ann. § 40-35-313 (1997) (bearing the caption, “Probation--

Conditions--Discharge--Expungement from official records”). See Talmadge G.

Wilbanks, slip op. at 5-6 (commenting that Code section 40-35-313, although

“commonly known as judicial diversion, is officially . . . probation with expungement

from official records” and noting that the section is inserted in the Code

“immediately after the provisions dealing with other forms of probation”). Section

40-35-313 speaks of the deferral of the prosecution, utilizing “probation” during the

deferral period.



              Therefore, in a case in which judicial diversion--and hence “probation”

-- is granted, the issue is whether the decision, unsupported by a prior conviction

judgment, is an “order denying” or “granting” probation as mentioned in rule 3(b),

(c), such that an appeal as a matter of right attaches.4 Applying certain maxims of


       4
             As if further perplexity is needed, “Probation” is defined as “the
release by a court of a person found guilty of a crime, upon verdict or plea,

                                           9
statutory construction to the comparison of section 40-35-313 with Tennessee Rule

of Appellate Procedure 3(b), (c), the legislature, when it enacted the Criminal

Sentencing Reform Act in 1989, is presumed to have had knowledge of rule 3(b),

(c), in light of its resolution pursuant to Tennessee Code Annotated section 16-3-

404 approving the Tennessee Rules of Appellate Procedure which were effective

July 1, 1979. Neff v. Cherokee Ins. Co., 704 S.W.2d 1, 4 (Tenn. 1986). Also, a

court attributes to words and phrases used in statutes their ordinary and natural

meaning, “without forced or subtle construction that would limit or extend the

meaning of the language.” Carson Creek Vacation Resorts, Inc. v. State, 865

S.W.2d 1, 2 (1993). As such, the term “probation” as used in section 40-35-313

must be understood to be the equivalent of the same term as it appears in rule 3(b),

(c), with the result that, regardless of the absence of a conviction judgment, an

appeal as a matter of right is available to a defendant who has been denied

probation, including judicial diversion, and to the state when probation, including

judicial diversion, has been granted.5



without imprisonment subject to conditions imposed by the court and subject to
the supervision of the probation service.” Tenn. Code Ann. § 40-28-102(7)
(1997) (emphasis added). Being “found guilty . . . upon a verdict or plea” is not
the equivalent of being subject to a “judgment of conviction,” as that phrase is
defined in rule 32(e), Tennessee Rules of Criminal Procedure. See n. 3, supra;
see State v. Vasser, 870 S.W.2d 543, 546-47 (Tenn. Crim. App. 1993)
(discussing the permutations under which even being “convicted” may not mean
being subject to a “judgment of conviction”).
       5
               This rationale perhaps supports the numerous judicial diversion
rule 3 cases from this court in which the jurisdictional basis was not articulated.
See State v. Gilberto U. Cantu and John P. Scott, No. 02C01-9603-CR-00092
(Tenn. Crim. App., Jackson, May 30, 1997); State v. Bobby Gene Keck, No.
01C01-9401-CC-00017 (Tenn. Crim. App., Nashville, May 16, 1997), pet. for
perm. app. filed (Tenn. July 14, 1997); State v. Michael W. Moore, No. 02C01-
9607-CR-00206 (Tenn. Crim. App., Jackson, Jan. 29, 1997); Talmadge G.
Wilbanks; State v. Michael Gentry, No. 01C01-9510-CC-00336 (Tenn. Crim.
App., Nashville, Nov. 8, 1996), perm. app. denied (Tenn.), cert. denied, --- U.S. --
-, 118 S. Ct. 567 (1997); State v. Bingham, 910 S.W.2d 448 (Tenn. Crim. App.
1995); State v. Beverly, 894 S.W.2d 292 (Tenn. Crim. App. 1994); State v.
Dowdy, 894 S.W.2d 301 (Tenn. Crim. App. 1994) (cases wherein this court
afforded review upon the defendant’s appeal of denial of judicial diversion,
following a guilty plea);see also State v. Antonio Johnson, 01C01-9601-CC-
00014 (Tenn. Crim. App., Nashville, Dec. 13, 1996); State v. Parker, 932 S.W.2d

                                         10
              To analyze the availability of a rule 37(b) appeal in a section 40-35-

313 case, one must not confuse the appeal of the diversion decision itself6 with the

appeal of issues that arose prior to the judicial diversion decision. An appeal of

Udzinski’s pre-diversion issues of search warrant deficiencies entails a review of the

determination of guilt and cannot sensibly be undertaken within the limited

parameters of review of the “order denying . . . [or] granting . . . probation.” Thus,

appellate review of the determination of guilt fits within the general provision of rule

3(b) that avails to the defendant an appeal as a matter of right only when a

conviction judgment is entered. As noted, the trial court followed section 40-35-

313(a) and entered no judgment of conviction nor any order that was dispositive of

the case. In such a case, the lack of a conviction judgment deprives Udzinski the

right to an appeal of his prediversion issues.



              Defendant Udzinski cannot be understood to be appealing the

diversion decision itself. He sought judicial diversion, has made no complaints

about the terms of the order, and has attacked only the court’s prior ruling on the

suppression issues. However, even an attempt to “piggy-back” the rule 37(b)

appeal onto the appeal of the diversion, or probation, decision fails because




945 (Tenn. Crim. App. 1996); State v. David Paul Martin, No. 03C01-9412-CR-
00448 (Tenn. Crim. App., Knoxville, Oct. 13, 1995),aff’d on other grounds, 950
S.W.2d 20 (Tenn. 1997); State v. Glenn David Jones, No. 03C01-9302-CR-
00057 (Tenn. Crim. App., Knoxville, Nov. 22, 1994), perm. app. denied (Tenn.
1995); State v. Vasser, 870 S.W.2d 543 (Tenn. Crim. App. 1993); State v. Billy
Moss, No. 02C01-9206-CC-00134 (Tenn. Crim. App., Jackson, Aug. 18, 1993),
perm. app. denied (Tenn. 1994) (cases in which the defendant appealed the
denial of judicial diversion after a trial). In State v. George, 830 S.W.2d 79
(Tenn. Crim. App. 1992), we specifically held that the defendant is not relegated
to the pursuit of a discretionary appeal under rule 9 or 10 of the Tennessee
Rules of Appellate Procedure when seeking review of the trial court’s denial of
judicial diversion, and he or she may proceed under rule 3(b). George, 830
S.W.2d at 80. Also, we have afforded review when the state has appealed from
the trial court’s grant of judicial diversion. See State v. Karl J. Saulsberry, No.
02C01-9203-CR-00058 (Tenn. Crim. App., Jackson, June 10, 1993).
       6
              See n. 5, supra.

                                          11
probation was granted -- not denied. Tenn. R. App. P. 3(b). The defendant, having

not been denied probation, and having received no conviction judgment, has no

rightful appeal of the diversion decision.



              Under Tennessee Rule of Criminal Procedure 37, Udzinski has no

basis for appealing a certified question of law because he has no appeal as a

matter of right under Tennessee Rule of Appellate Procedure 3(b), (c).



              I am authorized and pleased to express the concern of Judges Riley

and Walker that a defendant should have the right to appeal pretrial or trial issues

after judicial diversion, especially when the diversion is granted after a trial was

held.7 However, I believe it is imperative to recognize that the trial court may not

impose judicial diversion except upon the defendant’s consent. Tenn. Code Ann.

§ 40-35-313(a) (1997). A defendant who prefers to present issues for appellate

review may eschew the diversion, receive the conviction, and pursue a rightful

appeal under rule 3(b). Furthermore, if judicial diversion is desired and accepted,

the defendant may still apply for a discretionary appeal under Tennessee Rules of




       7
               If judicial diversion probation requirements are not fulfilled, the court
may then enter an “adjudication of guilt and proceed as otherwise provided.” Tenn.
Code Ann. § 40-35-313(a)(2). Conceivably, the thirty-day period for filing a motion
for new trial, Tenn. R. Crim. P. 33(b), and the subsequent period for perfecting an
appeal, Tenn. R. App. P. 4(a), are then available to the defendant who is aggrieved
by errors allegedly committed before or during his trial, affording the defendant
appellate review after he or she violates the terms of probation. However, section
40-35-313(a)(2) authorizes the trial court, “[u]pon violation of . . . probation,” to
“enter an adjudication of guilt.” Problematically, such an adjudication is a
component of, but is less than, a “judgment of conviction” as defined in rule 32(e),
Tenn. R. Crim. P. Under rule 32(e), the judgment of conviction includes the
“adjudication and sentence.” Tenn. R. Crim. P. 32(e) (emphasis added). One
wonders, therefore, if section 40-35-313(a)(2) contemplates that sentencing
occurred when judicial diversion was granted, not to be repeated when the
adjudication of guilt is made. This construction of the statute is all the more
troublesome in view of rule 33(b), Tenn. R. Crim. P., which states that a motion for
new trial must be made “within thirty days of the date the order of sentence is
entered.” Tenn. R. Crim. P. 33(e) (emphasis added).

                                          12
Appellate Procedure 9 or 10.



              In consequence of the above analysis, I would have found this court

to be without jurisdiction to hear Udzinski’s rule 3 appeal. That conclusion not

prevailing with a majority of the members of this panel, we now consider the issues

raised by the parties on appeal.



                        II. Legality of the Search Warrant.

              The issue presented by the defendants is whether the affidavit upon

which the search warrant was issued sufficiently states probable cause.              In

reviewing the issue, we must uphold the trial court's denial of the defendants' motion

to suppress unless the evidence preponderates against the lower court's findings.

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).



              The defendants maintain the affidavit is fatally tainted because it

refers to the results of the illegal 1991 search. The state concedes this information

was improperly included in the affidavit.        According to the defendants, the

egregiousness of this error, the effect of which is to deprive the process of a "neutral

and detached magistrate" to make the probable cause determination, compels

suppression of the evidence, without further inquiry to determine whether probable

cause exists with the offensive information redacted. The state, on the other hand,

urges us to affirm the trial court’s finding of probable cause with the offensive

information redacted from the affidavit.



              As a general principle, the exclusionary rule bars the admissibility of

both direct and indirect evidence obtained pursuant to an unconstitutional search

and seizure. See Wong Sun, 371 U.S. at 485, 83 S. Ct. at 416. There are

numerous exceptions. One is the "independent source" rule, whereby evidence

                                           13
obtained following illegal police conduct is not subject to the exclusionary rule if it

would have been discovered through means independent of the unconstitutional

police action. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.

Ct. 182, 183 (1920). The independent source rule has been applied by the

Supreme Court to a situation in which police officers illegally entered a warehouse,

saw contraband in plain view, and then immediately applied for a warrant to search

the premises, albeit without informing the magistrate of the recent illegal search.

Murray, 487 U.S. 533, 108 S. Ct. 2529.



              The case before us presents a variation of that concept. Here the

search warrant affidavit contained both legally obtained information (observations

made by an individual who had recently been in the defendants' home and a

transaction between this individual and one or both of the defendants), as well as

tainted information (the results of the illegal 1991 search).



              The defendants would have us hold that Murray, 487 U.S. 533, 108

S. Ct. 2529 and Clark, 844 S.W.2d 597, require exclusion of the evidence as a

blanket remedy where an affidavit in support of a search warrant application

improperly informs the magistrate of the results of an illegal search.            The

defendants argue this result is compelled based upon the immeasurable effect the

tainted information will have on the magistrate's ability to perform his functions as

a "neutral and detached" arbiter.       We do not interpret these authorities as

mandating the result defendants seek as a matter of law.



              In Murray, the Supreme Court was faced with a situation in which

police officers conducted an illegal entry of a warehouse, discovered marijuana in

plain view, and based upon other facts, obtained a search warrant within hours.

Murray, 487 U.S. at 535-36, 108 S. Ct. at 2532. The Murray defendants sought

                                          14
exclusion of the "plain view" evidence which was thereafter seized pursuant to the

valid warrant, arguing such a policy was necessary to prevent governmental

authorities from circumventing the warrant clause by conducting illegal searches

and then returning with a warrant in the event the first search turned up contraband

or other evidence of a crime. Murray, 487 U.S. at 539, 108 S. Ct. at 2534. A

fractured Supreme Court8 applied the independent source doctrine, noting the

officials' decision to obtain a warrant was not based upon what they saw during the

illegal entry and the illegally obtained information was not presented to the

magistrate who issued the warrant. Murray, 487 U.S. at 542-43; 108 S. Ct. at

2536.



                  The Tennessee Supreme Court faced a similar set of facts in Clark,

844 S.W.2d 597. There detectives illegally entered the defendant's home, observed

suspected evidence of criminal activity in plain view, secured the home and

obtained a search warrant. Clark, 844 S.W.2d at 598-99. Unlike the officers in

Murray, the Clark officers relied on statements the defendant's son made during the

illegal entry in the affidavit accompanying their application for a search warrant.

Clark, 844 S.W.2d at 600. The Clark court interpreted Murray as requiring "(1) the

evidence be later discovered during a search pursuant to a valid warrant, (2) this

valid warrant [be] obtained without reference to evidence uncovered during the

illegal search, and (3) [that] the government agents would have obtained the

warrant even had they not made the illegal entry." Clark, 844 S.W.2d at 600. On

the facts of Clark, the warrant failed because the illegally obtained information was

presented to the magistrate, and as a result the evidence obtained from the search

pursuant to the warrant was suppressed. Clark, 844 S.W.2d 597.




        8
            Murray was a 4-3 decision, with two justices not participating.

                                            15
              In Murray, the court reemphasized the basis of the independent

source doctrine:

       [T]he interest of society in deterring unlawful police conduct and the
       public interest in having juries receive all probative evidence of a
       crime are properly balanced by putting the police in the same, not a
       worse, position that they would have been in if no police error or
       misconduct had occurred. . . . When the challenged evidence has an
       independent source, exclusion of such evidence would put the police
       in a worse position than they would have been in absent any error or
       violation.

Murray, 487 U.S. at 537, 108 S. Ct. at 2533 (quoting Nix v. Williams, 467 U.S. 431,

443, 104 S. Ct. 2501, 2509 (1984)) (emphasis in original). The evil the Murray court

sought to avoid was illegal searches and seizures via governmental intrusion into

private areas, possibly as an exploratory tool for determining whether the intruding

officer should bother obtaining a warrant. On the other hand, in the case before us,

the evil the defendants attack is not a pre-warrant governmental intrusion into

private areas but the officer's inclusion of tainted information in the search warrant

affidavit and its ultimate effect on the magistrate's ability to remain neutral and

detached.



              In this case, the illegal search was conducted approximately five years

prior to the criminal activity alleged in the 1996 search warrant affidavit.9

Presumably, the contraband seized in 1991 was not returned to Udzinski, his victory

on the illegality of that search notwithstanding. Thus, unlike Murray and Clark, the

tainted information clearly refers to earlier, separate criminal activity by Udzinski, as

well as different contraband, though both the 1991 alleged criminal activity and

contraband are coincidentally of a similar nature as that alleged in the 1996

affidavit. It is clear to us that the informant's activities in 1996 were an independent


       9
              The defendants do not argue, and it is beyond reason, that the
illegal 1991 search was conducted as a predicate for the 1996 search. It bears
repeating that the 1991 search was not a warrantless intrusion; rather, it was
conducted pursuant to a search warrant that was subsequently invalidated.
Stephen Udzinski, Jr., slip op. at 2-3.

                                           16
source of information from the prior tainted search. The objective of the informant’s

operation in 1996 was apparently to purchase contraband from Crystal Griffin. It

was Ms. Griffin who elected to travel to the defendants’ residence to purchase the

drugs for resale to the informant.



              Having determined that the affidavit included source material

independent of the information that came from the 1991 search and seizure, we

must determine (1) if the inclusion of the 1991 information irrevocably invalidated

the 1996 warrant and, if not, (2) whether the independent information contained in

the affidavit supports the issuance of the warrant.




                                         (1)



              As to the first issue, which the defendant frames as compromising the

neutral and detached function of the magistrate, we are unpersuaded that a fatal

compromise occurred such that a redaction of the affidavit would not be remedial.

Indeed, the defendants have been unable to support this argument with any

authoritative caselaw. A trial court routinely makes determinations on legal issues

when it is aware of, but unable to consider, information which might inculpate the

accused, and such is often the very nature of a suppression hearing.



              That said, we believe that redaction of the affidavit is supported on

either of two bases.

                                         (a)

              Under Murray, we recognize that the result in cases where the

magistrate has been informed of tainted information remains a question which is still

                                         17
being debated. One commentator has noted that Murray seemingly supports two

significant conclusions:

       (1) that an independent source could not be established a la James[
       v. United States, 418 F.2d 1150 (D.C. Cir. 1969)],10 merely by
       showing that tainted information was nonessential in a legal sense
       (that is, merely because the other information in the affidavit could
       alone have supported a probable cause finding); and (2) that an
       inquiry into the thought processes of the magistrate who issued the
       warrant would be appropriate on the independent source issues.

5 Wayne R. LaFave, Search and Seizure § 11.4(f) at 291 (3d ed. 1996) (emphasis

in original). However, that commentator cautions that Murray was a four justice

opinion, it never discusses and rejects the James approach of considering the

affidavit without the offending information, and its expression of these principles is

not essential to its holding. As such, these notions from Murray have not translated

into practice. Rather, courts continue to follow the James approach post-Murray.

LaFave, supra, § 11.4(f) at 291-92.



              Under a Murray analysis, we elect to follow the well-accepted practice

of redacting the offensive references and determining whether probable cause

exists, rather than employing a true subjective inquiry to determine what the

magistrate actually relied on at the time he issued the warrant.11 See, e.g., United

States v. Samaeizadeh, 80 F.3d 1131 (6th Cir. 1996); United States v. Campbell,

878 F.2d 170 (6th Cir. 1989). See generally 5 Wayne R. LaFave, Search and

Seizure § 11.4(f) (3d ed. 1996). This court has essentially followed this procedure

in prior decisions. See State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App.

1993); State v. Carpenter, 773 S.W.2d 1, 6 (Tenn. Crim. App. 1989).


       10
         James said in pertinent part, "If the lawfully obtained information
amounts to probable cause and would have justified issuance of the warrant,
apart from the tainted information, the evidence seized pursuant to the warrant is
admitted." James, 418 F.2d at 1152 (citations omitted).
       11
         This procedure was accepted even before the Murray decision. See,
e.g., United States v. Karo, 468 U.S. 705, 719, 104 S. Ct. 3296, 3305 (1984);
United States v. Korman, 614 F.2d 541, 547 (6th Cir. 1980).

                                         18
                                          (b)

              The second basis is not rooted in Murray and may be more

appropriate in the present case. As noted above, the independent source doctrine

is that "while the government should not profit from its illegal activity, neither should

it be placed in a worse position than it would otherwise have occupied," Clark, 844

S.W.2d at 600 (quoting Murray, 487 U.S. at 542, 108 S. Ct. at 2535), but in Clark,

unlike the case at bar, the evil to be avoided was an illegal governmental intrusion

into one's home as a precursor to obtaining a warrant. In the present case, the pre-

warrant entry is too remote and its effect too attenuated to the issuance of the

contested warrant. As such, we find this case more analogous to those situations

in which an officer includes deliberate or recklessly false information in a search

warrant affidavit. See, e.g., State v. Little, 560 S.W.2d 403 (Tenn. 1978); State v.

Meeks, 867 S.W.2d 361 (Tenn. Crim. App. 1993). In those cases, the rule is that

a warrant will be invalidated if (1) it contains a false statement made with the intent

to deceive the issuing magistrate, or if (2) it contains a recklessly made statement

which is essential to the establishment of probable cause. Little, 560 S.W.2d at

407. In this case, there is admittedly no false statement; however, we find the

affidavit contained recklessly made statements.



              The officer who drafted the 1996 affidavit obtained the information

regarding the results of the prior search warrant from the district attorney general's

office. Though it appears a different assistant district attorney general was likely

assigned to the 1996 investigation of Udzinski than was assigned in 1991, the

invalidation of the 1991 warrant was pertinent information which should have been

maintained with any records of the 1991 proceedings and passed along to the

officer. Whether the officer, who does not appear to have known of the invalidation

of the prior search, was himself reckless is irrelevant.          A state actor, or a

combination of actors, has engaged in conduct which amounts to a reckless

                                           19
disregard of facts represented in a search warrant affidavit.



               As such, the question becomes whether the offensive information was

essential to the establishment of probable cause.12 If it was, the warrant must be

invalidated. If it was not, the warrant may stand. See Little, 560 S.W.2d at 407.

We now assess the existence of probable cause independent of the tainted

information.



                                        (2)



               If probable cause is supplied by affidavit to a magistrate where the

informant is from the criminal element, application of the two-prong test of Aguilar

v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964) and Spinelli v. United States, 393

U.S. 410, 89 S. Ct. 584 (1969) is mandated. State v. Cauley, 863 S.W.2d 411, 417

(Tenn. 1993). Under the Aguilar-Spinelli standard, the affidavit's adequacy is

measured by a two-pronged probable cause test: (1) whether the tip contains the

basis of the informant's knowledge (the "basis of knowledge prong"), and (2)

whether the tip includes a factual allegation that the informant is credible or the

information is reliable (the "veracity prong"). State v. Jacumin, 778 S.W.2d 430,

432 (Tenn. 1989).



               Review of probable cause determinations are inherently a fact-

intensive process and must be determined on a case-by-case basis. State v. Ernest

B. Steele, Jr., No. 03C01-9212-CR-00430, slip op. at 3 (Tenn. Crim. App., Knoxville,



      12
              See State v. Marcus Ellis, No. 01C01-9001-CR-00021, slip op. at 6-
7 n.1 (Tenn. Crim. App., Nashville, Dec. 12, 1990). (If illegally obtained
information is included in an affidavit used to apply for a search warrant, the
warrant is not invalid as a matter of law; rather, the offensive material would be
excised from the affidavit, and it would be considered on its remaining contents).

                                        20
Aug. 25, 1993) (citation omitted).     The issuing magistrate's determination is

generally entitled to great deference. See Jacumin, 778 S.W.2d at 432. Moreover,

we reiterate that the trial court's determination on a motion to suppress must be

upheld unless the evidence preponderates to the contrary. Odom, 923 S.W.2d at

23.



              With those principles in mind, we have carefully reviewed the affidavit

with the offensive references to the 1991 search redacted. We conclude that the

evidence does not preponderate against the trial court's finding of probable cause.

Moreover, we find no merit in the defendants' additional argument the information

contained in the affidavit was stale. See State v. Thomas, 818 S.W.2d 350, 357

(Tenn. Crim. App. 1991) (ten day delay in obtaining warrant where criminal activity

was ongoing). As such, this issue is without merit.



              In summary, the defendants properly preserved their certified question

for appellate review and this court exercises jurisdiction to hear both appeals, even

though a minority view has been expressed that we have no jurisdiction to hear a

rule 3 appeal in Mr. Udzinski’s case. The certified question issue, however, is

substantively without merit. Accordingly, the judgment of the trial court is affirmed.




                                          _______________________________
                                          CURWOOD WITT, JUDGE


CONCUR:



_______________________________
JOE G. RILEY JR., JUDGE




                                         21
_______________________________
JOSEPH H. WALKER, III, SPECIAL JUDGE




                               22
