State of Tennessee v. Thurman G. Ledford ( 2003 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
February 25, 2003 Session
STATE OF TENNESSEE v. THURMAN G. LEDFORD
Direct Appeal from the Criminal Court for Hamblen County
No. 02-CR-073 James E. Beckner, Judge
No. E2002-01660-CCA-R3-CD
May 22, 2003
Thurman G. Ledford appeals a certified question of law whether the strong odor of ammonia
emanating from his residence supported probable cause for the issuance of a search warrant, which
resulted in his arrest for drug-related activities. Because we conclude that the issue is not dispositive
of the defendant’s case, we dismiss his appeal.
Tenn. R. App. P. 3; Appeal is Dismissed.
JAMES CURWOOD WITT, JR., J.,delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ROBERT W. WEDEMEYER , JJ., joined.
Paul G. Whetstone, Mosheim, Tennessee, for the Appellant, Thurman G. Ledford.
Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General; C.
Berkeley Bell, District Attorney General; and Jonathan Holcomb, Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
Thurman G. Ledford seeks appellate review of his Hamblen County conviction,
pursuant to a guilty plea, for the attempted manufacture of a controlled substance. The defendant
invokes Criminal Procedure Rule 37(b)(2) as the basis for his appeal. See Tenn. R. Crim. P.
37(b)(2). The judgment of conviction in the record before us recites in pertinent part:
The defendant, pursuant to Rule 37(b), Tenn. R. Crim. P., reserves,
with the consent of the State, the following dispositive certified
question of law, to wit: whether the affidavit in support of the search
warrant stated probable cause for its issuance, based on the strong
smell of ammonia.
As we shall explain, because the defendant did not reserve a certified question of law that is
dispositive of the case, his appeal must be dismissed.
From the record, we discern that a search warrant was obtained on March 25, 2002,
by Hamblen County law enforcement officers, which authorized them to search for narcotics and
narcotics-related evidence at the defendant’s Skyline Drive residence in Morristown. The warrant
was executed, evidence was seized, and the defendant was arrested for the attempted manufacture
of a controlled substance and for possession of anhydrous ammonia 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 affidavit used to secure the search warrant was prepared by Hamblen-Morristown
Multiple Crimes Unit Police Officer Tracey Bowman. The affidavit includes Officer Bowman’s law
enforcement background and specialized training in drug investigations. The critical paragraphs of
the affidavit appear as follows:
2. On 03-25-02, 911 received a complaint of a strong odor of
ammonia in the area of E. Skyline Dr. [O]fficers with the Morristown
Police Dept. went and spoke to the complainant and noticed the
strong odor of ammonia. Agents with the Hamblen-Morristown
Multiple Crimes Unit went and spoke to the complainant also and
could smell the odor of ammonia. Agents with the Hamblen-
Morristown Multiple Crimes Unit having knowledge of the
procedures to manufacture methamphetamines know that ammonia
is used as key ingredient in that process. Agents with the Hamblen-
Morristown Multiple Crimes Unit went to 926 E. Skyline Dr. to
investigate the odor of ammonia in the area. Upon arrival agents
could smell the odor of ammonia. Agents knocked on the door of
926 E. Skyline Dr. and after a short wait a female came to the door
and officers saw a male subject come from the basement of the
residence and approach the front door. Upon the opening of the door
agents could smell the strong odor of ammonia coming from inside
of the residence. Officers asked about the strong odor of ammonia
and they stated they had been cleaning the bathroom. Agents then
asked for consent to search the residence which a subject named
(alias) TG Ledford gave officers consent. Upon Deputy Snowden
entering the residence he ask[ed] if anyone had any weapons and
(alias) TG Ledford stated he had a gun in his back pocket. Agents
retrieved the weapon from his pants pocket and then the consent to
search was then revoked. Agents then had a uniformed officer stay
at the residence while a search warrant was being issued to search the
residence. This agent along with other law enforcement agencies has
received citizen complaints with regards to this particular residence
regarding visitors to the residence at all hours of the day and night;
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visitors generally staying no longer than 10 minutes before leaving;
these actions being an indication of possible drug activity. Agents
also have received information about (alias) TG Ledford
manufacturing methampethamine.
3. Based on experience, training, and the above information,
AFFIANT, Tracey Bowman, believes that the indicators above and
the other information give probable cause to believe that drugs are
present inside the residence in question.
The defendant filed a motion to suppress the evidence seized from his residence based
on the search warrant. As grounds for suppression, the defendant alleged (a) that the warrant “was
not based upon sufficient facts to constitute probable cause, rendering the search and seizure
‘unreasonable’” and (b) that the warrant “did not comport with the requirements of Rule 41 of the
Tennessee Rules of Criminal Procedure.” The motion was scheduled for hearing on July 12, 2002.
Evidently, the defense and the state had previously reached a tentative agreement
whereby, if the motion was denied, the defendant would plead guilty to attempted manufacture of
a controlled substance, the state would move to dismiss the possession charge, and the defendant
would reserve a certified question for appellate review. Perhaps in anticipation of an adverse ruling,
the defendant prepared and brought with him to the suppression hearing a proposed judgment
containing language that a certified question of law was being reserved, “to wit: whether the affidavit
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 argued at
the hearing that the totality of the circumstances set forth in the search warrant affidavit supported
probable cause for issuance of the warrant. The defendant argued that the issue to be decided on the
suppression motion was as stated and framed in the proposed judgment.
And that is the certified dispositive issue before the Court
today. We’re going to be -- That is the issue we’re going to preserve
on this plea, is whether the strong smell of ammonia is sufficient to
constitute probable cause.
. . . I question 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 transcript, the trial court rejected the
defendant’s attempt to confine examination of the search warrant for probable cause to the smell of
ammonia. The trial court 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,
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were set out in the search warrant affidavit, which when considered cumulatively, constituted
probable cause. Accordingly, the trial court denied the motion to suppress. The trial court also,
however, entered the defendant’s proposed judgment, which articulated the certified question as
“whether the affidavit in support of the search warrant stated probable cause for its issuance, based
on the strong smell of ammonia.”
Reserving a certified question of law for appellate review is governed by Rule
37(b)(2) of the Tennessee Rules of Criminal Procedure. It provides,
An appeal lies from any order or judgment in a criminal proceeding
where the law provides for such appeal, and from any judgment of
conviction:
....
(2) Upon a plea of guilty of nolo contendere if:
(I) The defendant entered into a plea agreement under 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 case, and the following requirements are met:
(A) The judgment of conviction, or other document to which
such judgment refers that is filed before the notice of appeal, must
contain a statement of the certified question of law reserved by the
defendant for appellate review;
(B) The question of law must be stated in the judgment or
document so as to identify clearly the scope and limits of the legal
issue reserved;
(C) The judgment or document must reflect that the certified
question was expressly reserved with the consent of the state and the
trial judge; and
(D) The judgment or document must reflect that the
defendant, 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) (as amended by order filed January 31, 2002, effective
July 1, 2002)).
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On appeal, the defendant initially argues that the trial court improperly considered
all of the information in Officer Bowman’s affidavit, as opposed to confining the probable cause
inquiry to the ammonia odor emanating from the defendant’s residence. Evidently, the defendant
takes the position that the wording of the certified question in the proposed judgment should have
strictly confined the trial court’s inquiry.
We cannot fathom, however, how a trial court, which is considering a motion to
suppress, can be restricted by a proposed certified question that does not become a certified question
until a ruling has issued on the suppression motion. In effect, the defendant is attempting to
manipulate how the trial court analyzes probable cause. “Tennessee law is clear that in determining
whether or not probable cause supported issuance of a search warrant only the information contained
within the four corners of the affidavit may be considered.” State v. Keith, 978 S.W.2d 861, 870
(Tenn. 1998). Accordingly, the trial court cannot be found in error by following the law and
examining the totality of the facts and circumstances set forth in Officer Bowman’s affidavit.
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. 2000); 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 the record does not clearly
demonstrate 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 court must either affirm the judgment or reverse and dismiss.
An issue is never dispositive when we might reverse and remand.” 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 search warrant affidavit referenced information, other than the odor
of ammonia, in support of probable cause to search the defendant’s residence. The strong odor of
ammonia is not determinative or dispositive because the validity of the search warrant can still rest
on other information supplied in the affidavit.
Finally, we reject any suggestion that the defendant’s statement of the certified
question for review is “ambiguous” and should, therefore, not preclude a more comprehensive
review of the search warrant based on the totality of the circumstances set forth in Officer Bowman’s
affidavit. We note that the written plea agreement in the record before us contains language that a
certified question was being reserved, and the question is stated in terms of “whether probable cause
was stated in the affidavit based upon the strong smell of ammonia.” The defendant knowingly
defined the issue in terms of the odor of ammonia, and he will not be heard on appeal to contend
otherwise.
Consequently, for the foregoing reasons, we must dismiss the defendant’s appeal.
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___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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