IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 8, 2020

STATE OF TENNESSEE v. MARVIN GLENN BORDEN

Appeal from the Circuit Court for Weakley County

No. 2018-CR-46 Jeff Parham, Judge

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No. W2019-00534-CCA-R3-CD

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Defendant, Marvin Glenn Borden, was charged with one count of possession of more 

than 0.5 gram of methamphetamine with intent to sell or deliver and one count of 

possession of drug paraphernalia. Defendant filed a motion to suppress, which was 

denied by the trial court. Thereafter, Defendant pled guilty to the possession of 

methamphetamine charge with an agreed four-year sentence as a Range I offender to be 

served in confinement. The State dismissed the drug paraphernalia charge. Defendant 

reserved a certified question of law under Rule 37(b)(2)(A) of the Tennessee Rules of 

Criminal Procedure, challenging the trial court’s denial of the motion to suppress. After 

review, we affirm the judgment of the trial court. 

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and ALAN E. GLENN, JJ., joined.

Charles S. Kelly, Sr., Dyersburg, Tennessee, for the appellant, Marvin Glenn Borden.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Thomas A. Thomas, District Attorney General; and Colin Johnson, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Background

On appeal, Defendant presents a certified question of law challenging the 

sufficiency of the information in the affidavit provided in support of the search warrant. 

In his brief, he states the issue as follows:

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WHETHER THE AFFIDAVIT SUBMITTED TO THE ISSUING 

JUDGE CONTAINED ENOUGH INFORMATION TO ALLOW THE 

JUDGE TO MAKE AN INDEPENDENT, NEUTRAL AND 

DETACHED DETERMINATION THAT THE INFORMANT WAS 

CREDIBLE OR THAT HIS INFORMATION WAS RELIABLE.

The certified question states in full:

The certified question of law being reserved pursuant to Tenn. R. Crim. 

P. 37 (b) is whether or not the affidavit submitted to the issuing judge 

contained enough information to allow the judge issuing the warrant to 

make an independent, neutral and detached determination that the 

informant is credible or that his information is reliable.

The affidavit does not state how the informant is familiar with meth, nor 

the reason for his being in the defendant’s home. The affidavit does not 

describe the items used to sell or consume meth, it does not state whether 

he is a citizen informant or from the criminal milieu; nor does he do 

more than make an allegation that the defendant sells meth from his 

home, no facts of this provided. 

The affidavit does not state that the illegal drugs and paraphernalia were 

still located at the searched residence at the time the search warrant was 

issued. 

Does the affidavit offer more in support of a search warrant than mere 

conclusory allegations by the affidavit?

These questions were raised in the Motion to Suppress which was denied 

by the trial judge, who issued the search warrant. 

The State does not challenge that the question was properly reserved. However, we must 

first determine whether the question was properly reserved. State v. Preston, 759 S.W.2d 

647 (Tenn. 1988). Rule 37 (b)(2)(A) of the Tennessee Rules of Criminal Procedure 

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: 

(A) the judgment of conviction or order reserving the certified question 

that is filed before the notice of appeal is filed contains a statement of 

the certified question of law that the defendant reserved for appellate 

review;
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(B) the question of law as stated in the judgment or order reserving the 

certified question of law identifies clearly the scope and limits of the 

legal issue reserved;

(C) the judgment or order reserving the certified question reflects that the 

certified question was expressly reserved with the consent of the state 

and the trial judge; and

(D) the judgment or order reserving the certified question 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).

Additionally, in Preston, our supreme court explicitly provided prerequisites to 

appellate consideration of a certified question of law under Rule 37(b)(2)(A), stating:

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 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 [Tennessee Rule of 

Criminal Procedure] 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.

Preston, 759 S.W.2d at 650. Although the parties in this case agreed that Defendant’s 

certified questions of law were dispositive of the case, we are not bound by that 

determination. State v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003). We 

instead “must make an independent determination that the certified question is 
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dispositive.” State v. Dailey, 235 S.W.3d 131, 135 (Tenn. 2007) (citation omitted). “An 

issue is dispositive when this court must either affirm the judgment or reverse and

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

We conclude that the certified question is properly before this court. 

A summary of the testimony at the evidentiary hearing on Defendant’s motion to 

suppress is not necessary. The search warrant and affidavit in support of the issuance of 

the search warrant were made an exhibit at the hearing. 

Analysis

The only issue presented by Defendant is whether there was a lack of facts in the 

affidavit to establish that the confidential informant is credible or that his information 

was reliable in order to establish probable cause. We must review the affidavit’s contents 

to determine whether, within the “four corners” of the affidavit, sufficient facts were set 

forth to establish probable cause to issue the search warrant. State v. Keith, 978 S.W.2d 

861, 870 (Tenn. 1998). 

The Fourth Amendment to the United States Constitution and Article I, section 7 

of the Tennessee Constitution protect individuals from unreasonable searches and 

seizures. See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. The protections of Article 

I, Section 7 of the Tennessee Constitution are coextensive with those of the Fourth 

Amendment. State v. Tuttle, 515 S.W.3d 282, 307 (Tenn. 2017).

In reviewing a trial court’s determinations regarding a suppression hearing, 

“[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). Thus, “a trial court’s findings 

of fact in a suppression hearing will be upheld unless the evidence preponderates 

otherwise.” Id. Nevertheless, appellate courts will review the trial court’s application of 

law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). 

Furthermore, the prevailing party is “entitled to the strongest legitimate view of the 

evidence adduced at the suppression hearing as well as all reasonable and legitimate 

inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. 

Our standard of review in determining whether a search warrant is based upon 

probable cause is “whether, in light of all the evidence available, the magistrate had a 

substantial basis for finding probable cause.” State v. Meeks, 876 S.W.2d 121, 124 

(Tenn. Crim. App. 1993). “In reviewing the existence of probable cause for issuance of a 

warrant, we may consider only the affidavit and may not consider any other evidence 

known by the affiant or provided to or possessed by the issuing magistrate.” State v.

Carter, 160 S.W.3d 526, 533 (Tenn. 2005); see Tuttle, 515 S.W.3d at 299. A supporting 
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affidavit must establish a nexus between the criminal activity, the place to be searched,

and the things to be seized. State v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009) 

(citing State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002)). “Courts also should consider the 

nature of the property sought, the normal inferences as to where a criminal would hide 

the evidence, and the perpetrator’s opportunity to dispose of incriminating evidence.”

Reid, 91 S.W.3d at 275.

In determining whether the affidavit used to obtain the search warrant was 

sufficient, the Tennessee Supreme Court has adopted the totality-of-the-circumstances 

test, which requires the issuing magistrate to “‘make a practical, commonsense decision 

whether, given all the circumstances set forth in the affidavit before him, including the 

veracity and basis of knowledge of persons supplying hearsay information, there is a fair 

probability that contraband or evidence of a crime will be found in a particular place.’”

Tuttle, 515 S.W.3d at 303-04 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)) 

(internal quotations omitted). Under the totality-of-the-circumstances analysis, the 

informant’s basis of knowledge and veracity or credibility are no longer separate and 

independent considerations but are “‘closely intertwined issues that may usefully 

illuminate the commonsense, practical question [of] whether there is probable cause to 

believe that contraband or evidence is located in a particular place.’” Id. at 308 

(quoting Gates, 462 U.S. at 230) (internal quotations omitted). Barebones affidavits 

including only conclusory statements remain insufficient, and independent police 

corroboration of the information provided by the informant continues to add value to the 

affidavit. Id. at 307-08.

The affidavit supporting the search warrant in this case contains the following

[portions in all capital letters are shown exactly as they appear in the affidavit]:

The Affiant has received information from an informant who has 

previously given law enforcement information that le[d] to the discovery 

of criminal evidence or which led to a conviction, as follows:

THE PROVEN RELIABLE COOPERATING INDIVIDUAL USED IN 

THIS SEARCH WARRANT HAS GIVEN INFORMATION IN THE 

PAST THAT HAS LED TO THE RECOVERY OF 

METHAMPEHTAMINE. THE RECOVERIES HAVE ALSO LED TO 

NUMEROUS ARRESTS AND CONVICTIONS OF THOSE IN 

POSSESSION OF SAID DRUGS.

* * *

The Affiant believes that [Defendant] has possession of the above 

described property because THE AFFIANT, ERIC SMITH, IS A POST 

CERTIFIED POLICE OFFICER WORKING FULL TIME WITH THE 
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WEAKLEY COUNTY SHERIFF’S DEPARTMENT AS AN 

INVESTIGATOR WITH 17 YEARS OF LAW ENFORCEMENT 

EXPERIENCE. THE AFFIANT HAS BEEN INVOLVED WITH 

SEARCH WARRANTS OBTAINED FROM THE WORD OF THE 

COOPERATING INDIVIDUAL TALKED ABOUT ABOVE AND 

KNOWS THEIR WORD TO BE PROVEN RELIABLE. WITHIN 72 

HOURS PRIOR TO THE SWEARING OF THIS SEARCH 

WARRANT A PROVEN RELIABLE COOPERATING INDIVIDUAL 

WAS AT THE RESIDENCE OF [DEFENDANT] AT 12495 

HIGHWAY 45 IN MARTIN TN AND DID WITNESS THE 

SCHEDULE II NARCOTIC METHAMPHETAMINE. [DEFENDANT] 

WAS IN POSSESSION OF SAID METHAMPHETAMINE THE 

INFORMANT KNOWS [DEFENDANT] TO SELL 

METHAMPHETAMINE FROM THIS RESIDENCE. ACCORDING 

TO THE WEAKLEY COUNTY ELECTRIC MUNICIPAL THE 

ELECTRIC IS IN THE NAME OF ROSETTA WILSON. 

In considering whether the affidavit used to obtain the search warrant in this case 

was sufficient, the trial court made the following findings:

The Court - - I think I previously said on the record that I didn’t 

consider, in granting the search warrant, that the informant knows the - -

knows [Defendant] to sell methamphetamine from the residence. That 

would be clearly fluff in this warrant. And the Court didn’t consider 

that.

What the Court has to consider in granting a search warrant, and what 

the Court did consider in this case, in granting the search warrant 

originally, was whether there is enough evidence to establish that - - a 

fair probability that there’s contraband in the place to be searched. And 

it’s a less rigid case now. Although - - because of Tuttle. But what we 

had in this case is that, within the four corners of the warrant, we had a 

cooperating individual. But, using commonsense, the Court knows that 

it’s a criminal informant from the standpoint that very few citizen 

informants have given information that led to numerous arrests and 

convictions for methamphetamine. So, the veracity is established by 

giving the past information. 

The basis of knowledge is this individual saw the methamphetamine 

within the residence within the 72 hours. He knows what 

methamphetamine is because he’s done several arrests - - or done - -

provided information in the past. I probably have a little problem with 

the officer’s testimony that he uses 72 hours to protect the informant. I 
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don’t think that’s the legal standard. I think the 72 hours is to verify that 

the information is not stale. Anything beyond 72 hours could be 

considered stale unless there’s some corroborating testimony, which the 

officer talked about. But the fact that he always uses 72 hours to protect 

the identity of the informant, that’s incorrect. And if that’s what he 

believes, that’s incorrect. 

And in this case, as it stands today, the Court is - - the Court believes 

that there is sufficient proof to substantiate the warrant. That the fact 

that they saw this particular individual sell methamphetamine, advised 

the officer that it was present leads me to believe that there was a fair 

probability that contraband or evidence of a crime was to be found inside 

the residence and that the evidence was not stale at that time. So I’m 

going to - - on the basis of that I’m denying the motion. 

Upon a review of the totality of the circumstances, we conclude that the trial court 

did not err in its determination that the information contained in the affidavit was 

sufficient to establish probable cause for the issuance of a search warrant. The affidavit 

establishes the confidential informant’s basis of knowledge in that he knew Defendant 

sold methamphetamine and that he had been at Defendant’s residence within the last 

seventy-two hours, and while at the residence had seen methamphetamine in Defendant’s 

possession. This is enough to establish a sufficient “nexus between the criminal activity, 

the place to be searched, and the items to be seized.” Tuttle, 515 S.W.3d at 301; State v. 

Powell, 53 S.W.3d 258, 263 (Tenn. Crim. App. 2000); State v. Allen Jean Stephens, No. 

W2004-00531-CCA-R3-CD, 2005 WL 1541850, at *2-3 (Tenn. Crim. App. June 23, 

2005)(finding of probable cause where affidavit stated that a confidential informant “is 

known to affiant to have made a purchase of Schedule II crack cocaine from Defendant’s 

residence from Defendant within the past 72 hours). 

Additionally, the confidential informant’s credibility is shown by the statement in 

the affidavit that the confidential informant had given past information that led to 

numerous arrests and convictions for methamphetamine. See e.g., State v. Stephen 

Udzinski, Jr., No. 01C01-9212-CC-00380, 1993 WL 473308, at *3 (Tenn. Crim. App. 

Nov. 18, 1993)(“Thus an affidavit which recited that an informant had previously given 

law-enforcement information that led to the discovery of a murder weapon or a shipment 

of cocaine would sufficiently establish the informant’s reliability.”). Defendant 

complains that the affidavit did not provide specific details about how the confidential 

informant knew what methamphetamine was, the relationship between the confidential 

informant and Defendant, or the precise location of the methamphetamine inside the 

house. However, this court has held that “[t]he requisite volume or detail of information 

needed to establish the informant’s credibility is not particularly great.” State v. Lowe, 

949 S.W.2d 300, 305 (Tenn. Crim. App. 1996); See also State v. Sales, 393 S.W.3d 236, 

240 (Tenn. Crim. App. 2012). 
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The trial court was correct in denying Defendant’s motion to suppress. Defendant 

is not entitled to relief on this issue. 

CONCLUSION

Based on foregoing analysis, we affirm the judgment of the trial court. 

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THOMAS T. WOODALL, JUDGE