State of Tennessee v. Frederick Dean Givens ( 2021 )

09/07/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
August 11, 2021 Session
STATE OF TENNESSEE v. FREDERICK DEAN GIVENS
Appeal from the Criminal Court for Sumner County
No. 83CC1-2019-CR-802 Dee David Gay, Judge
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No. M2020-01431-CCA-R3-CD
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Following the denial of a suppression motion, the defendant, Frederick Dean Givens, pled
guilty to possession of more than 0.5 grams of methamphetamine with the intent to sell or
deliver, simple possession of marijuana, and possession of a firearm by a convicted felon.
As a condition of his plea agreement, the defendant reserved the right to appeal two
certified questions of law pursuant to Tennessee Rule of Criminal Procedure 37(b)(2)(A).
Upon our review, we conclude the issues are not dispositive of the defendant’s case, and
the appeal is dismissed. Additionally, we remand the case for entry of judgment forms in
counts 3 and 4.
Tenn. R. App. 3 Appeal as of Right; Appeal Dismissed and Case Remanded for
Entry of Corrected Judgments
J. ROSS DYER, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.
and CAMILLE R. MCMULLEN, JJ., joined.
Michael Pellegrin, Gallatin, Tennessee, for the appellant, Frederick Dean Givens.
Herbert H. Slatery III, Attorney General and Reporter; Clark L. Hildabrand, Assistant
Attorney General; Ray Whitley, District Attorney General; and Jason Elliott, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
On September 5, 2019, the Sumner County Grand Jury returned an indictment
charging the defendant with possession of more than 0.5 grams of methamphetamine with
the intent to sell or deliver (count 1); simple possession of marijuana (count 2);
manufacturing for sale or exchange a counterfeit controlled substance (count 3); possession
of drug paraphernalia with intent to use (count 4); and possession of a firearm by a
convicted felon (count 5). Thereafter, the defendant filed a motion to suppress evidence
recovered from a search of his residence, arguing the search warrant lacked probable cause.
At the suppression hearing, Deputy Brian Gambino with the Sumner County
Sheriff’s Office testified that just after midnight on April 28, 2019, he received a dispatch
regarding a disconnected 911 call. Although the caller later advised the 911 operator that
he was “trying to program his Apple watch and accidentally called 911,” it was standard
procedure for officers to follow-up on 911 hang-ups, and Deputy Gambino proceeded to
the defendant’s residence.
Upon arrival, Deputy Gambino knocked on the door, and the defendant answered.
As he advised the defendant of the reason for the visit, Deputy Gambino smelled the odor
of marijuana. Additionally, Deputy Gambino heard someone moving in the back of the
house and asked if anyone else was home. The defendant stated that his friend and
girlfriend were also present. Because Deputy Gambino was concerned someone might be
destroying evidence related to the marijuana odor, he entered the residence and conducted
a protective sweep, during which Deputy Gambino observed empty plastic bags, a green,
leafy substance consistent with marijuana, and various paraphernalia. Deputy Gambino
gathered everyone outside and asked the defendant for permission to search the residence.
The defendant responded by asking if he could “give [Deputy Gambino] the weed and just
get a ticket.”
Based on the odor of marijuana, the green, leafy substance observed in plain view,
and the defendant’s remark about “the weed,” Deputy Gambino obtained a search warrant
for the defendant’s residence. During the execution of the search warrant, Deputy
Gambino recovered “multiple pipes and bongs used for smoking marijuana;” a jar
containing a green, leafy substance consistent with marijuana; a small bag containing a
white, crystal powder; a small box containing plastic bags of different sizes; a “vape tank”
which contained a bag with over 40 grams of a white, crystal powder; a gun; ammunition;
digital scales with residue; and ledgers containing names, dollar amounts, and weights.
Deputy Gambino ran the defendant’s name through his computer and discovered he had a
felony conviction.
On cross-examination, Deputy Gambino acknowledged that hemp is a legal plant in
the same family as marijuana. However, he denied knowing what hemp smelled like or if
there was a way to distinguish between the smell of hemp and marijuana.
After its review, the trial court denied the motion to suppress, finding:
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So first of all, I find that the protective sweep is justified under the
exigent circumstance exception to the Fourth Amendment.
Now, the issue the defendant raised of detection of an odor consistent
with marijuana cannot be the basis for probable cause, I disagree. The officer
smelled what he thought was consistent with marijuana, and there is no
showing anywhere right now that anything else is showing up as hemp and
people are being arrested and their houses searched.
The officer at that time was reasonable in his belief that marijuana
smell was in the residence. So after being asked to consent to the search of
the residence, the defendant at that point said, can I give you the weed and
get a ticket. I’ve never had a case, and I don’t know of any officer testifying,
and this officer didn’t testify, where any person calls hemp weed. So based
on that he gets a search warrant.
...
So apart from the four corners of this affidavit, which I must look at,
the protective sweep, taken with the testimony here of the officer, produced
probable case.
Shortly thereafter, the defendant entered a plea of guilty to possession of more than
0.5 grams of methamphetamine with the intent to sell or deliver (count 1); simple
possession of marijuana (count 2); and possession of a firearm by a convicted felon (count
5), for which he agreed to an effective sentence of ten years supervised probation. The
remaining two counts were dismissed by agreement. The trial court entered an order
accepting the defendant’s guilty plea which reserved the following certified questions of
law pursuant to Rule 37(b)(2)(A) of the Tennessee Rules of Criminal Procedure:
(1) Whether the detection of an odor consistent with marijuana justified
the issuance and execution of a search warrant.
(2) Whether the plain view of a substance consistent with marijuana
justified the issuance and execution of a search warrant.
Upon entrance of the order, the defendant filed this timely appeal.
Analysis
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On appeal, the defendant contends the affidavit supporting the search warrant lacked
probable cause. Specifically, the defendant argues that, because marijuana and hemp are
indistinguishable without laboratory testing, the mere sight or odor of a substance
consistent with marijuana is insufficient to constitute probable cause. The State contends
this Court lacks jurisdiction because the certified questions are not dispositive of the
defendant’s case. We agree with the State.
Tennessee Rule of Criminal Procedure 37(b)(2)(A) provides that a certified question
may be reserved when:
(A) the defendant entered into a plea agreement under 11(c) 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 case, and 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 identified 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 court; and
(iii) 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 . . . .
In the present case, the trial court, the defendant, and the State agreed that the
certified questions were dispositive of the case. However, on appeal, the State contends
the questions are not dispositive.
Generally, a “question is dispositive when the appellate court must either affirm the
judgment [of conviction] or reverse and dismiss [the charges].” State v. Dailey, 235
S.W.3d 131, 134 (Tenn. 2007) (internal quotations and citations omitted). “If the appellate
court does not agree that the certified question is dispositive, appellate review should be
denied.” State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988).
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Here, the defendant’s certified questions are limited to whether the sight or odor of
a substance consistent with marijuana is sufficient probable cause for a search warrant.
However, Deputy Gambino’s search warrant affidavit referenced information other than
seeing and smelling marijuana in support of probable cause to search the defendant’s
residence. Specifically, the affidavit contained the defendant’s statement asking whether
he could “give [Deputy Gambino] the weed and just get a ticket.” Because the affidavit
contained an additional basis for probable cause other than the odor and sight of marijuana,
we conclude the defendant’s certified questions are not dispositive of the case, and the
appeal is dismissed. See State v. Prince Dumas, No. W2015-01026-CCA-R3-CD, 2016
WL 4083256, at *3 (Tenn. Crim. App. Aug. 1, 2016) (holding a certified question raising
the validity of the basis for a search warrant was not dispositive “when the search in
question was also supported by alternative bases”), no perm. app. filed; State v. Thurman
G. Ledford, No. E2002-01660-CCA-R3-CD, 2003 WL 21221280, at *4 (Tenn. Crim. App.
May 22, 2003) (finding the certified question was “not determinative or dispositive because
the validity of the search warrant can still rest on other information supplied in the
affidavit”), perm. app. denied (Tenn. Oct. 6, 2003).
Finally, we note that the record does not include judgment forms for counts 3 and
4. Although not discussed at the guilty plea hearing, it appears from the record that counts
3 and 4 were dismissed as part of the plea agreement. The trial court should, on remand,
enter judgment forms reflecting the disposition of counts 3 and 4. See State v. Davidson,
509 S.W.3d 156, 217 (Tenn. 2016) (requiring a trial court to prepare a uniform judgment
document for each count of the indictment).
Conclusion
Based on the foregoing, the appeal is dismissed. However, we remand this case for
entry of corrected judgments as specified in this opinion.
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J. ROSS DYER, JUDGE
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