IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 17, 2019 Session

STATE OF TENNESSEE v. JAMES MITCHELL

Appeal from the Circuit Court for Wayne County

No. 15744 Stella L. Hargrove, Judge

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No. M2018-00368-CCA-R3-CD

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Defendant, James Mitchell, entered a plea of guilty to possession with intent to sell more 

than .5 grams of methamphetamine. The trial court sentenced Defendant as a Range I,

standard offender, to eight years. Defendant attempted to reserve 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 his motion to suppress the evidence seized after a search of his 

person that occurred when he arrived by car at another person’s home which was being 

searched pursuant to a search warrant. After review, we conclude that this Court does not 

have jurisdiction to address the certified question because the certification did not meet 

the requirements of State v. Preston, 759 S.W.2d 647 (Tenn. 1988). The appeal is, 

therefore, dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

Brandon E. White, Columbia, Tennessee (on appeal) and Hershell Koger, Pulaski, 

Tennessee (at trial) for the appellant, James Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior 

Assistant Attorney General; Brent A. Cooper, District Attorney General; and Beverly 

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

OPINION

I. Factual Background

Defendant filed a motion to suppress the evidence seized during a search of his 

person, alleging the following grounds:

08/21/2019
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Defendant submits that the search of Defendant’s person was unlawful 

on the following bases to wit: The search was warrantless, the search 

was beyond the scope of the search warrant; the search warrant was 

overbroad; the search warrant did not apply to the Defendant’s person; 

the detention of the Defendant was unlawful; the search of the Defendant 

was unlawful; the degree of the search of the Defendant was unlawful.

Following a hearing, the trial court denied Defendant’s motion to suppress. 

At the suppression hearing, Investigator Dusty Malugen of the Wayne County 

Sheriff’s Office testified that on July 7, 2015, he obtained a search warrant for the 

residence of Arnold Stevens located at 199 Jennifer Lane in Collinwood. Investigator 

Malugen noted that a confidential informant (“CI”) had previously gone to the residence

on July 6, 2015, and purchased “illegal narcotics” from Mr. Stevens and Jodie Cox. He 

said that “approximately nine pounds of marijuana, Schedule I LSD acid, several drug 

paraphernalia, firearms, et cetera” were found during the search. Investigator Malugen 

noted that Defendant was not at the residence when they began executing the warrant. 

He said that Defendant pulled into the driveway during the search in a red Ford Bronco 

II, and Ms. Cox was in the vehicle with him. Investigator Malugen testified that the 

property was “in the middle of nowhere,” and the residence was at a “dead end.” He had

no doubt that Defendant was going to the home since it was highly unlikely a person 

would inadvertently drive to the home. Another female, Bailey Atkinson, was also in the 

vehicle with Defendant and Ms. Cox. Deputy Malugen knew that Ms. Cox had 

outstanding warrants for her arrest. 

Investigator Malugen testified that Ms. Cox was removed from the vehicle and 

taken into custody. He also had Defendant get out and stand next to his Bronco. He said: 

“For officer safety, I did a pat down on [Defendant].” To his knowledge, he did not place 

his hands inside Defendant’s pockets. Investigator Malugen further testified: “I have 

made it a common habit to ask them if they have any weapons, firearm, anything like that 

on them. [Defendant] said he did have a knife in his pocket.” He asked Defendant to 

remove the knife very slowly. Defendant then pulled the knife out along with a bag of 

methamphetamine that was later determined to weigh five grams. Investigator Malugen 

believed that another deputy checked Ms. Atkinson for weapons. 

On cross-examination, Investigator Malugen testified that they had just begun 

executing the search warrant when Defendant pulled up. He said that Steven Stults also 

arrived in another vehicle. He noted that Ms. Cox had outstanding warrants. Investigator 

Malugen testified that he did not find anything when he did a “pat-down search” of 

Defendant but he did feel something. He said that at that point he was “not digging.” He 

then asked Defendant about any weapons, and Defendant pulled out the knife along with 

the bag of methamphetamine. Investigator Malugen asked Defendant to empty all of his 
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pockets, and Defendant had $1,148.00 in his left front pocket. He agreed that $260 of 

that amount was identified as “marked buy money from some previous transaction[.]”

Investigator Malugen acknowledged that while the bag of methamphetamine and money 

were noted on the inventory sheet, the knife was not. He said that the inventory of 

Defendant’s vehicle included a radio, floor mats, wheel covers, and a knife. Investigator 

Malugen did not know if the knife was the same one that Defendant removed from his 

pocket. He admitted that his report of the incident indicated that he conducted a pat 

down, and drugs were found in Defendant’s right pocket, and the money was found in 

Defendant’s left pocket. There was no mention of a knife or a conversation about 

weapons in the report. Investigator Malugen testified that he did not find the bag of 

drugs during the pat-down search of Defendant. 

On redirect examination, Investigator Malugen denied putting his hands inside 

Defendant’s pockets. He agreed that his paperwork from the incident was sloppy. 

Investigator Malugen testified that he placed Defendant under arrest after seeing the 

drugs. 

Defendant testified that he pulled into the driveway on Jennifer Lane, and Ms. Cox 

was riding in the front seat. Another female was in the back seat. He said that the 

driveway to the house was “pretty isolated, and at least a quarter of a mile long.”

Defendant said that he did not immediately see any police vehicles or officers as he 

approached the residence. He testified that he stopped his vehicle, and “[t]hey came from 

all directions, from both sides of the truck and opened the doors, pulled us out, and told 

me we was under arrest and handcuffed us.” Defendant said that the officers came out of 

the ditch on each side of the vehicle with their guns drawn. He further said that the 

officers “turned me around up against the vehicle and handcuffed me behind my back.” 

He was told that the officers had a search warrant. Defendant testified that one of the 

officers patted him down and then pulled money from his left pocket and a bag of 

methamphetamine from his right pocket. He admitted that he also had a Case knife in his 

right pocket. 

Defendant testified that he did not recall Investigator Malugen asking if he had 

any weapons. Defendant also said that he did not reach into his own pocket and pull out 

the knife along with the bag of methamphetamine. He said that everyone else in the 

vehicle was also handcuffed, but he did not see if they were searched as well. Officers 

did not arrest the other woman in the vehicle with him. 

The trial court denied Defendant’s motion to suppress. Thereafter, on February 7, 

2018, Defendant entered into a negotiated plea agreement under Rule 11(c) of the 

Tennessee Rules of Criminal Procedure, in which he pled guilty to possession with intent 

to sell more than .5 grams of methamphetamine. The plea was accepted by the trial 

court.
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As part of his plea, Defendant attempted to reserve the right to appeal a certified

question of law dispositive of the case pursuant to Rule 37(b)(2)(A) of the Tennessee 

Rules of Criminal Procedure. The judgment of conviction form entered on February 7, 

2018, contained the following notation within the special conditions section: “Parties 

agree to reserve certified question of law. Incorporated by reference into the judgment is 

the ‘Agreed Order Reserving Certified Question of Law’ and the agreements stated 

therein.” The agreed order contains the following, designated as the certified question of 

law:

Did the trial court err in overruling the Defendant’s Motion to Suppress 

– Unlawful Search? Specifically, did the trial court err in ruling that the 

search of Defendant was not beyond the scope of the search warrant; that 

the search warrant was not overbroad; that the search warrant did apply 

to the Defendant’s person; that the detention of the Defendant was not 

unlawful; that the search of the Defendant was not unlawful; that the 

degree of the search of the Defendant was not unlawful; and, that the 

search of the Defendant was not warrantless?

The State argues initially on appeal that the question is not properly before this 

Court because Defendant has failed to comply with the prerequisites for reserving a 

certified question of law. We agree.

II. Reservation of Certified Question of Law

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:

(i) 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;

(ii) 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;

(iii) 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

(iv) 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[.]
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See also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston, 759 

S.W.2d 647, 650 (Tenn. 1988).

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.

Failure to properly reserve a certified question of law pursuant to Preston will 

result in the dismissal of the appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn.

1996). The burden is on the defendant to see that the prerequisites are in the final order 

and that the record brought to the appellate court contains all of the proceedings below 

that bear upon whether the certified question of law is dispositive and the merits of the 

question certified. Preston, 759 S.W.2d at 650.

In Armstrong, our supreme court reiterated that strict compliance with Preston is 

required:
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[O]ur prior decisions demonstrate that we have never applied a 

substantial compliance standard to the Preston requirements as urged by 

the defendant in this case. To the contrary, we have described the 

requirements in Preston for appealing a certified question of law under 

Rule 37 of the Tennessee Rules of Criminal Procedure as “explicit and 

unambiguous.” Moreover, we agree with the State that a substantial 

compliance standard would be very difficult to apply in a consistent and 

uniform manner, and therefore would conflict with the very purpose of 

Preston. We therefore reject the defendant’s argument that substantial 

compliance with the requirements set forth in Preston is all that is 

necessary in order to appeal a certified question of law.

Armstrong, 121 S.W.3d at 912 (citations omitted).

The certified question fails to clearly state the actual reasons the trial court denied 

the motion to suppress. The trial court denied the motion on the basis that there was 

reasonable suspicion to conduct a warrantless investigatory stop of Defendant’s vehicle 

and to pat down Defendant for the safety of law enforcement officers. 

Despite this limited ruling by the trial court, Defendant’s “scatter gun” approach to 

drafting a certified question of law utterly failed to hit the target. Four of the submitted 

“issues” dealt with the search warrant, which was not part of the trial court’s basis to 

deny the suppression motion. The two remaining “issues” were overbroad and/or vague 

assertions that the trial court erred by finding that: (1) the detention of Defendant was not 

unlawful and (2) the search of Defendant was not unlawful. Defendant’s drafting of the 

issue leaves this court to determine whether he is referencing the initial stop, the length of 

time between the stop and the arrest, or whether removing Defendant from his vehicle 

was an unlawful detention. A general assertion that a search is unlawful, without any 

further specificity, is inadequate. A lawful search of a person can be accomplished by a 

valid search warrant or pursuant to one or more of the multiple exceptions allowing for 

warrantless searches. From the wording of the purported certified question, Defendant 

wants this court to comb the record and find a reason to give him relief. We cannot do 

this. 

Defendant bears the burden of “reserving” articulating, and identifying the issue.” 

Pendergrass, 937 S.W.2d at 838. “[T]he [certified] question of law must be stated so as 

to clearly identify the scope and the limits of the legal issue reserved.” Preston, 759 

S.W.2d at 650 (emphasis added). 

We are without jurisdiction to review the merits of Defendant’s claim because he 

has failed to properly reserve his certified question of law. Pendergrass, 937 S.W.2d at 

838. Accordingly, the appeal is dismissed.
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CONCLUSION

Because of Defendant’s failure to properly frame his certified question of law, this 

Court is unable to reach the merits of Defendant’s claim as this Court has no jurisdiction 

to entertain this appeal. See Tenn. R. Crim. P. 37(b)(2)(A)(ii). Accordingly, this appeal 

is dismissed.

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THOMAS T. WOODALL, JUDGE