State of Tennessee v. Marvin Glenn Borden ( 2020 )

07/27/2020
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:
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
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