### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A pr il 6, 200 4
STA TE OF TEN NES SEE v. RA ND Y JA MES

Direc t Appeal from the Circ uit Court for Humphreys County

No. 10251 Allen W. Wallace, Judge

No. M2003- 01599-CCA -R3-C D - F iled Jun e 10, 2004

The De fenda nt, Rand y J am es , p l ed g uiltyto felony possession of marijuana . As part of his plea ag ree ment, he expressly

rese rved w ith the consent of the t rial court and the State the rig ht to appeal
a ce rtified question of law pursuant to Tenne ssee Rule of Criminal Proc edure 37(b)( 2)(i). The issue befor e us is whether

the trial court erre d by

not suppressing the fruits of a sear ch whe re the re w ere alleg ed fa lse statements i n the affidavit supporting the sear ch wa rra nt. We affirm the judg ment of the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which A L AN E. G L EN N and R OB E R T W. W EDEMEYER , J J ., joined.

Mic ha e l J. F la na g a n, Na sh vil le , T e nn e sse e , f or the app e lla nt, Ra nd y

Jame s. Paul G. Summers, Attorney Gene ral and Reporter ; Helena Walton Yar broug h, Assistant Attorney Gene ral; Victor S. Johnson, Di s tr ic t A tt o rn e y

G e n e r a l; an d

L isa Doneg an; Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

. OP IN ION

On J anuary

29, 2002, a sea

rch w arr ant was issued in Humphrey s Countywhich authorized the sea rch of the Def

endant’ s residenc e. Although the rec ord is somew hat unclea r, it a ppear s that police off icer s conducte d a sea

rch of the Def endant’ s residenc e on the s ame day . As a re sult of the
sear ch, the De fenda nt was cha rg ed with possession of drug para pherna lia with intent to deliver, possession of marijuana

with intent to deliver, and possession of hashish with intent to sell and/or deliver. O n J une 13, 2002, the Def endant filed a motion to s uppress the e vidence rec overe d in the
sear ch of his re sidence

. I n his motion, he asserted that the affida vit supporting the se arc h war rant
c on ta ine d f

a lse inf orma tio n. Th e a ff

ida vit in q ue sti on state s, in p e rt ine nt p art ,-2-

[Of fi ce r David Daniel] say s that a conf idential informant . . . has supplied information on today ’s date that said confide ntial inf ormant persona lly

overhe ard a n individual make ar

rang ements to purcha se marijuana from t he above -name d individual, to-w it: Randy J ames.

. . . Affia nt w ould state that s ai d confidential inf orma nt a dv ise d th e tim e the su bje c t wa s to pu rc ha se mari juana fr om R a nd y

Jame s, stating spe ci fica lly

that the individual was g oing to Mr. James’ re sidence

. Confidential informant further g ave a deta iled description of the vehicle be ing driven by the individual purcha sing marijuana from Randy J ames, as well as identify ing the ind iv id u a l b y n a me , a s w e ll a s a d v is in g th a t th e in d iv id u a l’ s d r iv e r ’ s li c e n s e was suspended, a s well as advising which route said individual would be trave ling. Your Affia nt, acting upon the information supplied by the conf idential informant, we nt by 90 0 OldHi g hw a y

13 , s a me be ing the re sid e nc e of Ra nd y Jame s, a ndwa s a

ble to verify that the automobile as described by the conf idential informant wa s in fact at the J ames re s i d en ce. Your Aff iant then positioned himself along the route w hich confide ntial informant had a dvised the individual purcha sing ma rijuana w ould use. Your Af fiant had c onfirmed that the individual’s driver’s license w as in fac t revoke d. Upon see ing the subject vehic le, same be ing t h e o ne see n at the James residenc e, y our Affia nt pulled over said individual, a dvising same that the individual was under
arr est for driving on r evoked lice nse. Your A ffiant f urther que stioned the individual about the pre sence of any drug s in the vehicle. Said indi vidual at that time advised y ou r A ff ia nt that th e re wa s in f

a c t a pp ro xima te ly

1/4 oz o f m ari

juana on sa id indiv id u a l’ s p e r s o n

. Sa id in d iv id u a l a t th a t ti me a d v is e d y o u r A f f ian t that the marijuana had jus t been purcha sed from Randy J ames at the residence he reina bove.

A hea ring on the Def

endant’ s motion was held o n J u n e 2 4, 2002. At this hearing , the confide ntial informant did not testify . Ra t h er, the informant’s wif e, Kristie Culp, who was the “individual” in the af

fidavit that purcha sed marijuana from the Def endant, testified that she neve r tol d a n off ic e r that she ha d bou g ht dru g s f ro m th e De fe nd a nt. Th e re fo re , s he a sse rt e d th a t st a te me nts to that e ffe ct in the aff

idavit were false. T he trial c ourt ruled that, ba sed upon the “ believability of thi s w itn e ss, ” the re wa s n ot s uf fi c ie nt e vid e nc e to atta c k th e ve ra c ity of the a ff ida vit

. The Def endant rene wed his motion to suppr ess on Aug ust 16, 2002. Attached to his motion
was a n aff idavit, sw orn to by Ms. Culp, which stated that she did not advise a police office r that she had purcha sed marijuana from the Def endant. A second suppression hearing w as held on De cembe r 2 3 , 2 0 0 2

. M s

. C u l p d i d n o tt e s t i f y a tt h i s h e ar i n g

. H o w e v e r , D a v i dC u l p , h e r h u s b a n d , d i d t e s t i f

y. The rec ord is unc lear , but Mr

. Culp wa s appar ently the confide ntial inf ormant who provided the inf orma tio n c on ta ine d in the a ff ida vit to O ff ic e r D a vidDa nie l. M r. Cul p te sti fi e d tha t he did no t te ll Offic er D aniel that Ms. Culp was g oing to pur chase marijuana from the Def endant. He testified that the police of

fice r he spoke with was Off icer Rob Edwards. He stated that he told Offic er Edw ards that Ms. Culp “might be purc hasing some [m arijuana ],” but that he did not mention the Def endant as the seller . The trial court found Mr. Culp to be an incredible w itness, and denied the Def endant’ s motion to s uppress. On the same da y , the Def endant pled g uilty to felony possession of marijuana

.-3-

Howeve r, he e x pressly

rese rved the rig ht to appeal a certified question of law, w hich is stated on the final judg ment as: “W h et h ert h e s ea rc h wa rr an taf fi d av i tco n t ai n ed fa l s e s t at em en t s , re ck l es s l y m ad e, that wer e nec essary

for the f inding of probable cause .”

Tenne ssee Rule of Crimina l P ro cedur e 37(b) (2) pr ovides that an a ppeal lies fr om any judgme nt of conviction ente red pur suant to a plea of g uiltyor nolo contende re if:
(i) The defe ndant enter ed into a plea ag ree ment un d er Rule 11(e) but expli citly rese rved w ith the consent of the st ate a nd of the c ourt the rig ht to appeal
a ce rt ified question of law that is disposi tive of the c ase, a nd the following
re qu ir e me nts are me t:

(A) T he judg ment of convic tion, o r o ther doc ument to which such judgme nt refe rs that is fi l ed b ef ore the notice of a

ppeal, must contain a state me nt o f the c e rt if

ie d q ue sti on of la w re se rv e d b y de fe nd a nt f

or app e llate revie w; (B ) The que stion of law must be stated in the judgme nt or document so as to identify

clea rly the scope and limits of the leg al issue re serve d; (C) The judgme nt or document must re flec t that the certified question
was e x pressly rese rved with the consent of the state and the trial judg e; and (D) T he judg ment or docume nt must refl ec t t hat the def endant, the sta te , a n d t h e tr i a l j u d g e ar e o f t h e o p i n i o n t h a tt h e c e r t i f i e d q u e s t i o n is dispositi ve of thecase [.]
See also State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988) . The pre requisites for the consider ation of the meri t s of a c ertified que stion of law having been me t, we beg in our ana ly sis of whether the tr ia l c ou rt e rr e d b y de nying the De fe nd a nt’ s mo tio n to su pp re ss.
An a ff ida vit in s up po rt

of a search warr a nt that is fa c ia lly va lidma y

be imp e a c he d if

it contains a f

alse stateme nt, essential to a finding of probable cause , that was recklessly made. See State v. L ittle, 560 S.W .2d 403, 407 (Tenn. 1978)

. The defenda nt bear s the burden of establishing by a preponde ranc e of the evidenc e that the false statement was rec klessly made. See F ra n k s v. Delaw are , 438 U.S. 154, 156, 98 S. C t. 2674, 57 L . Ed. 2d 667 (1978).

“ On app e a l, the tr ia l c ou rt ’s fi nd ing s o f f a c t a t the c on c lus ion of a su pp re ssi on he ari ng wi ll be upheld unless the e vidence preponde rate s otherwise. T h e d ef en d ant bea

rs the burde n of demonstrating that the evidence preponder ates ag ainst the trial court’s finding s.” State v. Ha rts, 7 S.W .3d 78, 84 (Tenn. Crim. App. 1999) (citations omitted).
Questions of cr edibilityof t he witnesses, the weig ht and value of the evidenc e, and resolution of conf

licts in the evidence are matters entr usted to the trial judg e as the tr ie r o f f a c t. Th e party

pr e va ili ng in the tr ia l c ou rt is e nti tle d to the str on g e st le g iti ma te vie w o f the e vid e nc e a dd uced at the s up pr e ssi on he ari ng a s w e ll a s a ll
rea sonable a nd leg itimate infere nces that may be drawn from that evidenc e. S o long-4-

as t h e gr ea t er we i gh t o f t h e ev i d en ce s u p p o rt s t h e t ri al co u rt ’s fi n d i n gs , t h o s e f i n d i n gs shall be upheld.
State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996)

. At the c on c lus ion of

the tw o s up pr e ssi onhe ari ng s, the tr ial cou rt de te rm ine d th a t bo th
w i t n e s s e s w h o t e s t i f

i e d t h a tt h e a f

f i d a v i tc o n t a i n e d f

a l s e s t a t e m e n t s w e r e i n c r e d i b l e

. S p e c i f i c a l l y, the trial judg e stated, “I watche d Ms. [C ulp] testify

. . . and I didn’t believe it. That’s the bottom li ne.

. . . I sure didn’t believe her a nd this man we have this morning I don’t know if I ’d believe him if he tol d me it w a s d a y lig ht o uts id e, I th in k I ’dloo k. ” Ob vio us ly the tr ia l ju dg e ma de a

c re dib ili ty determination of both the Defenda nt’s witnesses and, in doing so, found t hat t he Defenda nt had not met his burden of showing that the af fidavit containe d a fa lse statement which was re cklessly made. After revie wing the rec ord, we conclude that the evidenc e does not pr eponder ate ag ainst the trial
c ou rt ’s fi nd ing s.
Acc ording ly , the judg ment of the trial c ourt is affirmed.

___________________________________ DAVID H. WELLES, J UDGE