IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

May 10, 2005 Session

STATE OF TENNESSEE v. JARED C. BROWN

Direct Appeal from the Criminal Court for Davidson County

No. 2004-A-591 J. Randall Wyatt, Jr., Judge

No. M2004-02101-CCA-R3-CD - Filed August 30, 2005 

The appellant, Jared C. Brown, pled guilty in the Davidson County Criminal Court to possession of

over ten pounds of marijuana with the intent to sell or deliver, and he received a sentence of two

years. As a condition of his plea, the appellant reserved a certified question of law regarding the

validity of a search warrant. Upon review of the record and the parties’ briefs, we conclude that the

question is not dispositive of the appellant’s case and affirm the judgment of the trial court. 

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

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT

W. WEDEMEYER, JJ., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Jared C. Brown.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Michael Rohling, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

We have gleaned the bulk of the facts in this case from the order of the trial court denying

the appellant’s motion to suppress:

On November 15, 2003, Detective Ron Black received a

telephone call from Special Agent Dean Henderson of the Drug

Enforcement Agency’s office in San Diego, California, stating that

two packages containing marijuana were coming into Nashville from

San Diego via UPS. Special Agent Henderson gave Det. Black the

following addresses on both packages:
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[Jared Brown, 908 Weatherside Ct., Nashville, TN

37209, Package # 1z6706x70140414076; and

Brandon McDaniel, 649 Huntington Parkway,

N a s h v i l l e, TN 37211, Packag e #

1zxx96320118487805.]

Det. Black confirmed the addresses with UPS security representative

Laure Harris, and the packages were identified by drug sniffing

canines in Lexington, Kentucky. When the Package[s] were

delivered to Nashville, they were taken into the custody of the

Metropolitan Nashville Police Department. At the Vice office, the

trained narcotics sniffing drug canine, Rocky, detected a narcotics

odor on both packages. Based on this information, Det. Black was

able to obtain a search warrant for the package and the [appellant’s]

residence, to which the package was addressed.

The search warrant identified the place to be searched as “908

Weatherside Court, Nashville, Davidson County, Tennessee” and

further described the premises as “Being 908 Weatherside Court, a

two-story, single family dwelling made of red brick and having tan

trim. The front door is [gray] in color and the number ‘908’ is clearly

visible on the mailbox post in front of the residence.” The affidavit

in support of the search warrant also identifies the place to be

searched as “908 Weatherside Court, Nashville, Davidson County,

Tennessee,” however, it further states, “The Affiant further testifies

that the said evidence is now located and may be found within or

upon the premises known as 649 Huntington Parkway, Nashville,

Davidson County, TN. And/or upon the p[e]rsons of others using or

occupying the subject location, which is more particularly described

as follows: A two-story, single family dwelling made of red brick and

having tan trim. The front door is [gray] in color and the number

‘908’ is clearly visible on the mailbox post in front of the residence.”

On the afternoon of November 26, 2003, Detective Morton,

acting in an undercover capacity, delivered the package to the

[appellant] at 908 Weatherside Court, Nashville, TN 37209. At this

time the search warrant was executed at the [appellant’s] residence,

and officers discovered several different bottles of liquid steroids,

Oxycontin tablets, marijuana, a 20 gauge shotgun, and drug

paraphernalia. As a result of the search of the [appellant’s] residence,

the [appellant] was charged in three General Sessions warrants with

Possession with Intent to Sell Marijuana, Steroids, and Oxycontin.
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The appellant filed a motion to suppress items seized as a result of the search of his

residence, alleging:

1. The affidavit in support of the search warrant fails to establish

probable cause in that there is an insufficient allegation of the basis

of knowledge of the affiant, as well as the lack of a sufficient nexus

between the items sought and the place to be searched.

2. The affidavit in support of the search warrant describes property

to be searched other than that in the warrant.

3. The search warrant states that weapons will be found at the

residence, which is unsupported by probable cause. 

At the suppression hearing, the appellant focused his argument on the sufficiency of the affidavit

underlying the issuance of the search warrant. The appellant contended that the affidavit listed his

address as the location to be searched. However, the affidavit stated that the package containing

marijuana was addressed to “Brandon McDaniel at 649 Huntington Parkway[,] Nashville, TN

37211.” Thus, the appellant argued that the affidavit did not contain probable cause for searching

his residence. 

The trial court overruled the appellant’s motion to suppress, finding that 

[a] common-sense application of the facts and circumstances

surrounding the issuance of the warrant show an obvious clerical

error. The Vice division of Metropolitan Nashville Police

Department was alerted by the DEA’s office in San Diego, to two

similar packages, identified as containing illegal drugs mailed on the

the same day to Nashville residences. . . . [S]earch warrants were

obtained for both of the packages and the residences to which they

were addressed. The error in the affidavit in support of the search

warrant for the [appellant’s] residence at 908 Weatherside Court

included the address of 649 Huntington Parkway, contained on the

other package. Furthermore, the address of 649 Huntington Parkway

had the description of the residence at 908 Weatherside Court. The

Court finds that the inconsistency in the supporting affidavit is a

clerical error. The Court is of the opinion that this clerical error was

made without prejudice to the [appellant], and that the affidavit was

sufficient to establish probable cause for the warrant to search the

[appellant’s] residence at 908 Weatherside Court, Nashville, TN

37209. 
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After the trial court overruled his motion to suppress, the appellant pled guilty to count one

of the indictment, possession of more than ten pounds of marijuana with the intent to sell or deliver.

The plea agreement provided that the appellant would receive a two-year sentence. Additionally,

as part of the plea agreement, count two of the indictment, possession of several Schedule III

controlled substances, and count three, possession of oxycodone, a Schedule II controlled substance,

were dismissed. Further, as a condition of his plea, the appellant reserved a certified question of law:

“Whether the search warrant and affidavit sufficiently describe the location to be searched so as to

establish probable cause.”

II. Analysis

Initially, we note that certified questions of law are governed by Rule 37(b)(2)(i) of the

Tennessee Rules of Criminal Procedure. Rule 37(b)(2)(i) provides that an appellant may appeal

from any judgment of conviction occurring as a result of a guilty plea if the following requirements

are met:

(A) The judgment of conviction, or other document to which

such judgment refers that is filed before the notice of appeal, must

contain a statement of the certified question of law reserved by

defendant for appellate review;

(B) The question of law must be stated in the judgment or

document so as to identify clearly the scope and limits of the legal

issue reserved; 

(C) The judgment or document must reflect that the certified

question was expressly reserved with the consent of the state and the

trial judge; and 

(D) The judgment or document must reflect that the

defendant, the state, and the trial judge 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). In the instant case, the appellant has complied with all of the foregoing

requirements for reserving a certified question of law. 

The appellant’s certified question asked “[w]hether the search warrant and affidavit

sufficiently describe the location to be searched so as to establish probable cause.” With regard to

this issue, our supreme court has explained that

[t]he Fourth Amendment to the United States Constitution requires

that search warrants issue only “upon probable cause, supported by
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Oath or affirmation.” Article I, Section 7 of the Tennessee

Constitution precludes the issuance of warrants except upon

“evidence of the fact committed.” Therefore, under both the federal

and state constitutions, no warrant is to be issued except upon

probable cause. Probable cause has been defined as a reasonable

ground for suspicion, supported by circumstances indicative of an

illegal act.

State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998) (footnote and citations omitted). Moreover,

in this state, “a finding of probable cause supporting issuance of a search warrant must be based upon

evidence included in a written and sworn affidavit.” Id. Specifically, this court has observed that

“[p]robable cause to support the issuance of a warrant must appear in the affidavit, and judicial

review of the existence of probable cause will not include looking to other evidence provided to or

known by the issuing magistrate or possessed by the affiant.” State v. Barbara Copeland, No.

03C01-9402-CR-00079, 1996 WL 368209, at *3 (Tenn. Crim. App. at Knoxville, June 28, 1996);

see also State v. Moon, 841 S.W.2d 336, 337-38 (Tenn. Crim. App. 1992). Additionally, “[i]n order

to establish probable cause, an affidavit must set forth facts from which a reasonable conclusion may

be drawn that the contraband will be found in the place to be searched pursuant to the warrant.”

State v. Norris, 47 S.W.3d 457, 470 (Tenn. Crim. App. 2000). Furthermore, “‘affidavits must be

looked at and read in a commonsense and practical manner’, and . . . the finding of probable cause

by the issuing magistrate is entitled to great deference.” State v. Bryan, 769 S.W.2d 208, 211 (Tenn.

1989) (quoting State v. Melson, 638 S.W.2d 342, 357 (Tenn. 1982)). Accordingly, we must review

the affidavit to determine whether there was sufficient evidence contained therein to support the

issuance of the search warrant; namely, whether the affidavit sufficiently alleges the existence of

illegal activity at the appellant’s residence.

The search warrant listed the appellant’s correct address, 908 Weatherside Court, Nashville,

Davidson County, Tennessee, as the location to be searched. The warrant further described the

residence as “[b]eing 908 Weatherside Court, a two-story, single family dwelling made of red brick

and having tan trim. The front door is gray in color and the number ‘908’ is clearly visible on the

mailbox post in front of the residence.” 

The affidavit underlying the issuance of the search warrant stated that contraband would be

found at “908 Weatherside Court, Nashville, TN.” In the second paragraph, the affidavit stated that

contraband would be found at “649 Huntington Parkway, Nashville, Davidson County, TN,”

describing the premises as “[a] two-story, single family dwelling made of red brick and having tan

trim. The front door is gray in color and the number ‘908’ is clearly visible on the mailbox post in

front of the residence.” As his explanation of probable cause, affiant Detective Ron Black stated:

On 11-25-03 your affiant was contacted by DEA Special

Agent Dean Hernderson on the matter of possible drugs being

[delivered] to Nashville, TN from San Diego, CA. He stated that he

had information that a package was to be [delivered] via UPS and the
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package was to contain a quantity of marijuana. The package would

be addressed to Brandon McDaniel at 649 Huntington Parkway[,]

Nashville, TN 37211. The packages had a UPS route number of

1ZXX96320118487805. This information was confirmed through

security at UPS on Whites Creek Pike[,] Nashville, TN. On 11-26-03

a [trained] certified narcotics canine, Rocky and Detective Allen

Herald did a sniff around the exterior of the packages. Rocky is

certified through United States Police Canine Association in the

detection of: marijuana, cocaine, methamphetamine and heroin.

During the sniff, canine alerted to a narcotic odor emitting from the

exterior of the package with route number 1ZXX96320118487805

affixed to the side of the package.

Affiant anticipates that this package will be delivered to said

location and that upon its successful delivery this warrant will be

executed.

The trial court ruled that the “inconsistency” of having two different addresses mentioned

in the affidavit was merely a “clerical error” which did not prejudice the appellant. We disagree.

Our supreme court has explained that 

[a]n affidavit in support of a search warrant must set forth facts from

which a reasonable conclusion might be drawn that the evidence is in

the place to be searched. The nexus between the place to be searched

and the items to be seized may be established by the type of crime,

the nature of the items, and the normal inferences where a criminal

would hide the evidence.

State v. Smith, 868 S.W.2d 561, 572 (Tenn. 1993) (citations omitted); see also State v. Jason Miller,

No. 03C01-9402-CR-00065, 1995 WL 470235, at *2 (Tenn. Crim. App. at Knoxville, Aug. 9, 1995).

Further, this court has observed that “[t]he facts which connect a crime or criminal activity to the

premises to be searched are critical and must be included in an affidavit for a search warrant.”

Miller, No. 03C01-9402-CR-00065, 1995 WL 470235, at *2. In the instant case, there is no

information contained in the affidavit to tie the marijuana to the appellant’s address at 908

Weatherside Court, nor did the affidavit mention the appellant’s name in connection with the drugs.

See State v. Evelyn C. Bostic, No. M2000-03011-CCA-R3-CD, 2002 WL 369898, at *4 (Tenn.

Crim. App. at Nashville, Mar. 8, 2002). The affidavit instead provided reason to believe that

contraband could be located at the address of Brandon McDaniel at 649 Huntington Parkway. This

is no mere clerical error. Accordingly, any contraband seized as a result of the search warrant for

the appellant’s address should have been suppressed.

In the trial court, the appellant, the State, and the trial court agreed that the appellant’s

certified question was dispositive of the case. “This Court is not bound by the determination and
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agreement of the trial court, a defendant, and the State that a certified question of law is dispositive

of the case.” State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003). “‘An issue is

dispositive when this court must either affirm the judgment or reverse and dismiss. An issue is never

dispositive when we might reverse and remand.’” State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim.

App. 2000) (quoting State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984)). 

As the State notes on appeal, the appellant’s conviction of possession of marijuana with

intent to sell or deliver was based on the marijuana seized at the UPS facility. This evidence was

seized as a result of the first search warrant. The appellant did not challenge the validity of the first

search warrant and never moved to suppress the marijuana seized from the search at the UPS facility.

In the order denying the appellant’s motion to suppress the items found during the search of the

appellant’s home, the trial court stated that the appellant’s name and address were on the package

containing the marijuana. Police discovered that the package contained marijuana prior to delivering

the package to the appellant. Therefore, we conclude that this evidence would not have been

excluded by the warrant authorizing a search of the appellant’s residence. In other words, the State

had proof of the marijuana offense prior to the search of the appellant’s home. Thus, the appellant’s

question is not dispositive of his case. See State v. Michael Kennedy, No.

W2001-03107-CCA-R3-CD, 2003 WL 402798, at **3-4 (Tenn. Crim. App. at Jackson, Feb. 21,

2003). The only items found as a result of the contested search warrant were the controlled

substances for which the appellant was charged in counts two and three of the indictment. See State

v. Randall Lunsford, No. 01C01-9603-CC-00098, 1997 WL 381910, at *4 (Tenn. Crim. App. at

Nashville, July 11, 1997). “If the appellate court does not agree that the certified question is

dispositive, appellate review should be denied.” Preston, 759 S.W.2d at 651. Accordingly, we

conclude the appellant is not entitled to relief. 

III. Conclusion

Based upon the foregoing, we affirm the judgment of the trial court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE