### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Februar y 25, 2 003 Session
STATE OF TENNESSEE v. THURMAN G. LEDFORD
Direct Appeal from the Criminal Court for Ham blen County No. 02-CR-073 James E. Beckner, Judge

No. E2002-01660-CCA-R3-CD May 22, 2003

Thurman G. Ledford appea ls a cer t ified que stion of la

w whethe r the stro ng odor

of ammonia emanating from his residence supported probable cause f or the issuance of a search warrant, which resulted in his arrest for drug-related a ctivities. Because we conclude that the issue is not dispositive of the defendant ’s case , we dismis s his appe al. Tenn. R. App.P. 3; Ap peal is Dism issed.

J AMES C URWOOD W ITT , J R ., J.,de livered the opinion of the court, in which J OHN E VERE TT W IL LI AMS and R OBER T W. W EDEMEYER , JJ., joined. Paul G. Whetstone, Mosheim, Tennessee, for the Appellant, Thurman G. L edford.

Paul G. Summers , Attorney Gene ral & Reporter; Kathy

D. Aslinge

r, Assista nt Attorne

y General ; C. Berkeley Bell, Di strict Att

orney Genera l; an d Jonathan Holcomb, Assistant District Attorney General, for the Appellee, State of Tenne ssee.
OPINION

Thurman G. Le dford seeks appellate review of his Hamblen County conviction, pursuant to a guilty plea , for the attempted manufacture of a contr olled substance. The defendant invokes Criminal Procedure Rule 37(b)(2) as the basis for his appeal. See Tenn. R . Cri m. P. 37(b)(2 ). The jud

gment of convicti on in the r

ecord be fore us r ecites in pertine nt part:
The def endan t, pursua

nt to Rule 37 (b), Ten

n. R. Crim. P. , reser

ves, withthe conse

nt of th e State, the following dispositive certified question of law, to

wit: wheth

er the a ffidavit in support of the search warrant stated probable ca

u se for its issuance, based on the strong smell of ammonia.-2-

As we shall explain, because the defendant did not reserve a certified q uestion of law tha t is dispositive of the case, his appeal must be dismissed.

From the record, we discern that a sear ch warrant was obtained

on March 25, 2002, by H amblen County law enfor cement officers, which authorized them to search f or narcotics an d narcotics-related

evidence at the defendant’s Sky line Drive residence in Morristown. The warra nt was executed, evidence was seized, and the defendant was arrested for the attempted manufacture of a controlled substance and for possession of anhydrousammonia with the intent to manufacture
a controlled substance. See Tenn. Code Ann. §§ 39-17-417(a)(1), (c)( 2); -433(a)(1) (Supp. 2002).

The affida

vit used to secure the search war rant was prepared by

Hamblen-Morristown Multiple Crimes Unit Police Officer Tracey Bowman. The aff

idavit includes Officer Bowman’s law enforcement

backg round an d specia

lized trai ning in dr

ug inve stigatio ns. The critical paragraphs of the aff idavit ap pear asfollows:

2. On 03-25-02 , 911 received a complaint of a strong odor of ammonia in the are a of E. Sky

line Dr. [O ]fficer s with

the Morristown P olice Dept. we

nt and spok

e to the c omplaina

nt and noti c ed th e strong odor o f ammonia. Agents with the Hamblen-Morristown Multiple Crimes Uni

t went and

spoke to th

e compla inant also and could smell the odor

of a mmonia. Agents with the HamblenMorristown Multiple Cr imes Unit h aving knowledge of the procedures to manufa

cture me thamphet amines kn ow th at a mmonia is used as key ing

redient in that process. Agents with theHamblenMorristown Multiple Crimes Un it went to 926 E. Sky line Dr. t o investig ate the odor o f ammonia in the are a. Upon a

rrival a gents could smell the odor of ammonia. Agents knocked on the door of 926 E. Sky

line Dr. a nd after a short wa

it a fema le came to the door and officers saw a male subject come fr om the basement of the residence and approach

the front door. Upon the opening of the door
a gents could smell the stro ng odor of ammonia

coming f rom insid e of the r es idence. Office

rs asked about the strong o dor of am

monia and they stated

t hey had be en cleaning the bathroom. Age nts then askedfor cons ent to sea rch the r esidenc e which a

subje ct na med (alias) TG Ledfo rd ga ve officers consent. Upon Deputy Snowden entering the residence he ask[ed] if an yon e had any weapons and (ali as ) TG Le dford sta

ted he ha d a gun i n his back

pocket. Agents retrieved the weapon from his pants pocket and then the consent to search was then revoked. Agents then had a unif ormed officer stay at the residence while a

search warrant

was being issued to search the residence. This agent along with other law enforcement age ncies has received citizen co mplaints with regards to this particular residence regarding vi si to rs to th e r es id en ce at al l h ou rs of th e d ay and ni gh t;-3- visitors generally

staying no long er than 10 minutes befor e leavi ng; these actions b eing an

indicatio n of possib le drug activity . Agent s also have received information about (al ias ) TG Ledford manufacturing methampethamine.

3. Based on experience, training, and the abov e information, AFFIANT , Tracey

Bowman, believes that the indicators above and the other information give probable caus e to believe that drugs are present inside the residence in question.

The defen dant filed a motion to suppress the evidence seized from his residence based
on the search warrant. As grounds for suppression, the defendant alleg ed (a) that the warrant “was notbased up on suffic ient fac ts to consti tute prob able ca

use, rendering

the se a rch and seizure ‘unreasonable’” and (b) that the wa rrant “did not comport with the requirements of Rule 41 of

the Tennessee Rules of Criminal Procedure.” The motion wasschedule d for hea ring on Jul

y 12, 2002.

Ev id en tl y, the defense and the st ate had previously reached a tentative agr

eement wh er eb y, if the motion was denied, t he defe ndant would plead g

uilty to attempted manufacture of
a controlled substanc e, the sta te would mo ve to dismis s th e poss ession charge, and the defe ndant would reserve a certified question for a ppellate review. Perhaps in anticipation of an ad verse r ulin g, the defendant prepared and broug ht with him to the sup pression he aring a proposed judgment containing language that a ce rtified question of law was bein g rese rved, “t o wit: whe

ther the affida vit in support of the search

warrant stated probable cause for its issuance, based on the strong smell of ammonia.”

In the record before us is a transcript of the suppression hearing. The state arg ued at the hearing

that the to tality

of the ci rcumstan ces set f orth in the search

warrant affidavit supported probable cause for issuance of the warr ant. The defendant argued that the issue to be decided on the suppress ion motion w as as sta ted and f ramed in the propo sed judg ment.
And that is the

certifi ed disposit ive issue before the Court to da y. We’re g oing to be

-- That i s the issue we’re going to preserve on this plea, is whether the strong smell of a mmonia is sufficien

t to constitute probable cause.

. . . I ques tion whether the smell of ammonia alone -- the strong smell of

ammonia -- can

constitute probable cause[,] and that’s the singular issue for the Court today pursuant to Rule 37. By its remarks and ruling, as reflected in the tra nscript, the trial court rejected the defendant’s attempt to

confine examinatio n of the se arch wa rrant fo r probab le cause

to the smell of ammonia. The trial co urt voiced its opinion that “just smelling ammonia is not enough to give probable cause,” but it emphasized that suspicious circumstances, other than an odor of ammonia,-4-

were set out in the search warrant affidavit, which whe n considered cumulatively , con stit uted probable cause. According ly, thetrial court denied the motion to suppress. The trial court also, however, e nt ered the defendant’s proposed judg ment, which articulated the certified question as “whether the affidavit in support of the search warra nt stated probable cause for its issuance, based on the strong smell of ammonia.”

Reserving a certified question of law for appellate revi ew is go verned b y Ru le 37(b)(2 ) of the T ennesse e Rules of Criminal Pr

ocedure . It pr

ovides, An appea l lies fro m any

order or judgmen t in a criminal proceeding wh ere t he law provides for such appeal, and from a ny judgment of conviction:

. . . . (2) Upon a plea of guilty

of nolo contendere if:
(I) The defend ant e ntered i nto a plea agree ment unde

r Rule 11(e) but explicitly reserved with the consent of the state and

of the court the right to appeal a certified question of

law that is dispositive of the ca se, and th

e followi ng req

uiremen ts are me t: (A) The judgmen

t of convi ction, or

other doc ument towhich such judgment refers that is filed before the notice of appea l, must contain a statement of the certifi e d question of law reserved by the defendant for appellate review;
(B) The q uestion of law must be stated in the judgment or document so as to identify clear

ly the scope and limits of the leg al issue reserved;
(C) The judgment or document must reflect that the certified question was expressly reserve d with the consent of the state and the trial judge; and (D) The judgment or docu ment must reflect that the d efen dant, the state, and the trial judge are of the opinion that the certified question is dispositive or the case[.]

Tenn. R. Crim. P. 37(b)(2)(i)(A), (B), (C), (D) (a s amended by or der filed January 31, 2002, effective July 1, 2002)).-5- On appeal, the defe

ndant initi ally

a rgues that the trial court improperly considered all of the information in Officer Bowman’s af fidavit, as opposed to con fining t he proba ble caus e inquiry to the ammonia odor emanating from the defendant’s residence. Evidently, the defe ndant takes the position that the wording of the certified question in the proposed judgment should have strictly confined the tria

l court’s inquiry.

We cannot fathom, however, how a trial court, which i s conside ring a m otion to suppress , ca n b e r es tr ic te d b y a proposed certified question that does not become a certified question until a ruling has issued on the suppression motion. In e ffect, the defe ndant is a

ttempting to manipula te how the trial

court an aly zes proba

ble caus e. “Ten

nessee l aw is cle ar that in

determining whether or not probable cause supported issuance of a se arch warrant only the information contained within the four corners of the affidavit may be considered.” State v. Keith , 97 8 S.W.2d 861, 870 (Tenn. 1998). Ac cordingly , the trial court cannot be found in error by following the law and examining

the totality o f the fa

cts and c ircumsta

nces set forth in O fficer

Bowman’ s affida

vit.

It does not avail the defendant that the trial court entered his proposed judgment containing the language that the ammonia smell was dispositive. This court is “not bound by the trial court’s determination that an issue is dispositive.” State v. Oliver , 30 S.W.3d 363, 364 (Tenn. Crim. App. 2000), perm. app. denied (Tenn. 2 000); see State v. Preston , 759 S.W.2d 647, 651 (Tenn. 1988). We are, instead, obligated “to make an independent determination of the dispositive nature of the question reserved, and appellate review must be denied if t he record does not c learly demonstr ate how the question is dispositive.” Oliver , 30 S.W.3d at 365; see Preston , 759 S.W.2d at 651.

“An issue is dispositive,” the court explained in State v. Wilkes , 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984), “ when this c ourt must e ither af firm the j udgmen

t or reve rse and dismiss. An issue is never dispositive when we might reverse and r emand.” See Oliver , 30 S.W.3d at 365. In our estimation, the record does not clearly demonstrate how the defendant’s issue is dispositive of his case. Officer Bowman’s sea rch warrant affidavit refere ncedinformation, other than the odor of ammonia, in support of probable cause to search the de fendant’s residence. The strong odor of ammonia is not determinative or

dispositive

because the valid ity o f the sea

rch war rant ca n still res t on other i nformati on supplie d in the af fidavit.

Fina ll y, we reject any

suggestion that the defendant’s statement of the certified question for review is “ambi guous ” and should, therefore, not preclude a more comprehensive review of the se arch wa

rrant ba sed on the

totality of the circumstances set forth in Officer B owman’s affida vit. We note that the written plea agreement in the record before us contains languag e that a certified question was being reserved, and the question is stated i n terms of “whethe r probab le cause
was stated i n the affidav it based u pon the str

ong smell of ammoni a.” The defenda nt knowingly definedthe issue in terms of the odor o f ammon ia, and he will not be heard on appeal to contend otherwise. Conseque

ntly , for the

foreg oing re asons, we

must dismiss t

he defe ndant’s a ppeal.-6- ___________________________________ JAMES CURWOOD WITT, JR., JUDGE