State of Tennessee v. Bradley Hawks

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

October 6, 2009 Session

STATE OF TENNESSEE v. BRADLEY HAWKS

Direct Appeal from the Circuit Court for Crockett County

No. 3916 Clayburn Peeples, Judge

No. W2008-02657-CCA-R3-CD - Filed February 19, 2010

The Defendant-Appellant, Bradley Hawks, pled guilty in the Circuit Court of Crockett

County to possession of less than .5 grams of methamphetamine with intent to sell or deliver,

a Class C felony. He was sentenced to eight years in the Tennessee Department of

Correction and fined $2,000. Pursuant to Tennessee Rule of Criminal Procedure 37, Hawks

attempted to reserve the following certified question of law: “Whether the search and arrest

of the defendant was unconstitutional in violation of Article I, Section 7 of the [Tennessee]

Constitution and the 4th Amendment of the U.S. Constitution.” Because the certified

question fails to identify the scope and limits of the legal issue reserved, we conclude that

we are without jurisdiction to consider this appeal, and therefore it is dismissed.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and

D. K ELLY T HOMAS, J R., JJ., joined.

M. Brandon Barber, Alamo, Tennessee, for the Defendant-Appellant, Bradley Hawks.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Gary G. Brown, District Attorney General; and Stephanie Hale, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. Hawks was indicted for possession of methamphetamine over 0.5

grams with intent to sell or deliver, a Class B felony. He later pled guilty to the reduced

charge of possession of less than .5 grams of methamphetamine with intent to sell or deliver,

a Class C felony. The methamphetamine 1 was found on Hawks’ property during a police

search. Hawks filed a motion to suppress all evidence seized during the search. The motion

to suppress challenged the search of Hawks’ residence on the following grounds: (1) “Law

enforcement officers had no probable cause to conduct a warrantless search of defendant’s

residence;”(2) “The search was not incident to lawful arrest, with consent given freely and

voluntarily, probable cause with exigent circumstances, in hot pursuit, or a stop and frisk

situation as prescribed by law;” (3) “The arrest of the defendant was an illegal, invalid arrest

due to the fact that it resulted from an illegal, invalid, warrantless search of the defendant’s

home and outbuildings located on the property, without probable cause to do so;” and (4)

“Defendant’s constitutional rights against illegal search and seizure and his rights to due

process of law, equal protection of the laws and counsel have been violated.”

The limited facts presented in this case are not in dispute. Prior to the motion to

suppress hearing, the prosecutor stated, “Judge, we’re arguing a plain view case and we’re

prepared to go forward on that.” On the date at issue, Captain Eric Uselton of the Crockett

County Sheriff’s Department, testified that he was called to Hawks’ residence by other

officers because he was assigned to the West Tennessee Violent Crimes and Drug Task

Force. He stated that he had received specialized training in the detection of illegal drug

activity and was laboratory certified. Captain Uselton explained that the other officers were

at Hawks’ residence in response to an earlier domestic violence call from Hawks’ residence.

When Captain Uselton arrived, he stated that the other officers were positioned away from

Hawks’ residence. He called for the assistance of other lab certified law enforcement

officers as well as the Friendship Fire Department. He testified that the original responding

officers had evacuated Hawks’ wife and children and sent them to the emergency room for

testing before he arrived. Captain Uselton said that he could smell the anhydrous ammonia

and starter fluid from the road, approximately a hundred yards “from where the substance

emitting the smell was located[.]” Before locating the source of the odor, Captain Uselton

cleared the residence in an effort to locate Hawks, but could not locate him.

When searching for Hawks, Captain Uselton explained they used the back door, which

was left open, because the front door was locked. Captain Uselton said they found no

evidence of illegal narcotics inside the residence.

Captain Uselton determined that the odor was coming from an area near the back door

where an Igloo cooler (“the cooler”) was located. The cooler was just outside the back door

next to a garbage can. He opened the cooler and immediately determined that it was the

source of the odor. The cooler contained “white chalky powder” that was soaked in

1

It is not entirely clear from the record whether the methamphetamine, which forms the basis of the

indictment, was recovered from the Igloo cooler or the outbuilding located on Hawks’ property.

-2-

anhydrous ammonia, starter fluid, and camp fuel. The cooler also contained Sudafed, which

is an ingredient for methamphetamine. Captain Uselton testified that the contents of the

cooler were wrapped in coffee filters. He said the contents tested positive for

pseudoephedrine, which is an ingredient of methamphetamine. He described what he found

as a “somewhat active in itself . . . one pot method of cooking methamphetamine.” However,

at the time of the hearing, the Tennessee Bureau of Investigation Crime Lab had not tested

the contents for methamphetamine because of its strong odor.

Captain Uselton also testified that he searched outbuildings on Hawks’ property. As

a result of the search, Captain Uselton found two jars containing a small amount of starter

fluid. He explained that starter fluid was a solvent used to cook methamphetamine.

There was no argument presented by either the State or Hawks at the hearing on the

motion to suppress. The trial court denied Hawks’ motion to suppress, stating:

I think under the circumstances the officers did only what they could be

expected to do. Safety considerations were such that they would have been

remiss to have done anything else, so I’m overruling the Motion[.]

Hawks subsequently entered a conditional guilty plea. The judgment form reflects

that Hawks reserved a certified question of law. The trial court issued an order which found

that “the State and the Court consented to the reservation of this issue; and that all parties and

the Court are of the opinion that this issue is dispositive of this case.” Hawks filed a timely

notice of appeal.

ANALYSIS

I. Certified Question. The guilty plea states that Hawks reserved the following

certified question of law: “Whether the search and arrest of the defendant was

unconstitutional in violation of Article I, Section 7 of the [Tennessee] Constitution and the

4th Amendment of the U.S. Constitution.” Hawks’ brief sets forth the issue in slightly

narrower terms: “Whether the Warrantless Search of the Premises of Bradley Hawks fell

under one of the noted exception[s] to the Warrant Requirement demanded under the U.S.

and Tennessee Constitutions?” Upon review, we hold that the certified question does not

clearly identify the scope and limits of the legal issue reserved, and therefore we are without

jurisdiction to consider this appeal.

Tennessee Rule of Criminal Procedure 37(b)(2)(A) allows for an appeal from any

order or judgment on a plea of guilty or nolo contendere if the defendant reserves the right

to appeal a certified question of law that is dispositive of the case, so long as the following

four requirements are met:

-3-

(i) the judgment of conviction or other document to which such judgment

refers that is filed before the notice of appeal, contains a statement of the

certified question of law that the defendant reserved for appellate review;

(ii) the question of law is stated in the judgment or document so as to identify

clearly the scope and limits of the legal issue reserved;

(iii) the judgment or document reflects that the certified question was expressly

reserved with the consent of the state and the trial court; and

(iv) the judgment or document reflects that the defendant, the state, and the

trial court are of the opinion that the certified question is dispositive of the

case[.]

Tenn. R. Crim. P. 37(b)(2)(A). The Tennessee Supreme Court clearly outlined the

requirements for reserving a certified question of law in State v. Preston:

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 Tenn. R. Crim. P. 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. Of course, the

burden is on defendant to see that these prerequisites are in the final order and

that the record brought to the appellate courts contains all of the proceedings

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

-4-

the merits of the question certified. No issue beyond the scope of the certified

question will be considered.

759 S.W.2d 647, 650 (Tenn. 1988) (emphasis added). As the Tennessee Supreme Court

stressed, “Preston puts the burden of reserving, articulating, and identifying the issue upon

the defendant.” State v. Pendergrass 937 S.W.2d 834, 838 (Tenn. 1996).

This court has previously required certified questions of law to be narrowly framed.

In State v. Nicholas J. Johnson, this court concluded that it did not have jurisdiction of the

case because the defendant failed to identify the scope and limits of the legal issue reserved

within the expansive area of search and seizure law:

In the present case, the issue reserved is “the validity of the search and

seizure of the” Appellant. This overly broad question violates the mandates

announced in Preston. The question is not only patently non-specific but also

does not clearly identify the reasons relied upon by the Appellant at the

suppression hearing. Additionally, review of the question as presently framed

would potentially require a complete dissertation of the law of search and

seizure of which this court is not willing to engage in absent specific

boundaries circumscribed by the Appellant. The holding of Preston created a

bright-line rule regarding the prerequisites for a Rule 37(b)(2)(i) appeal from

which this court may not depart. See generally Preston, 759 S.W.2d at 650;

but see State v. Harris, 919 S.W.2d 619, 621 (Tenn. Crim. App. 1995) (issue

need not be framed in standard “law school” format; statement satisfies

Preston if appellate court can ascertain from the record the scope of the issue

presented).

No. M2000-03162-CCA-R3-CD, 2001 WL 1356369, at *2 (Tenn. Crim. App., at Nashville,

Nov. 6, 2001) (footnote omitted), perm. to appeal denied (Tenn. Apr. 8, 2002). In State v.

Kale J. Sandusky, this court concluded that the defendant’s certified question was overly

broad in light of the narrower issue argued by the defendant in his appellate brief:

The issue reserved in the trial court’s judgment is “whether or not the

entries by law enforcement into [the Defendant’s] home on October 23, 2006

were in violation of constitutional guarantees against unreasonable searches

and seizures under the state and federal constitutions. . . .” The Defendant’s

brief, however, frames the issue as follows: “Must arrest warrants for the

offense of ‘failure to appear’ be issued by a neutral and detached magistrate

upon a sworn affidavit setting forth probable cause?”

-5-

The Defendant’s certified question is overly broad and fails to clearly

identify the scope and limits of the legal issue reserved. We point out that the

certified question does not mention the validity of an arrest warrant.

No. M2008-00589-CCA-R3-CD, 2009 WL 537526, at *3 (Tenn. Crim. App., at Nashville,

Mar. 4, 2009), perm. to appeal denied (Tenn. Aug. 24, 2009).

We conclude that the certified question presented by Hawks fails to precisely identify

the scope and limits of the legal issue reserved. See Tenn. R. Crim. P. 37(b)(2)(A)(ii). In

attempting to reserve the question of whether “the search and arrest of the defendant”

violated the Fourth Amendment of the United States Constitution and Article I, Section 7 of

the Tennessee Constitution, Hawks asks this court to conduct a complete overview of search

and seizure law as applied to the facts of this case. This court has repeatedly declined to

engage in or conduct such an overview. See Nicholas J. Johnson, 2001 WL 1356369, at *2;

State v. Randal L. Cheek, No. M2000-00203-CCA-R3-CD, 2000 WL 1838584 at *4 (Tenn.

Crim. App., at Nashville, Dec. 14, 2000) (dismissing appeal because certified question,

“whether there was a lawful or unlawful search of [defendant’s] residence by police

officers”, was overly broad question in violation of Preston).

Hawks’ certified question is overly broad for several reasons. First, Hawks’ motion

to suppress alleges five separate grounds supporting the suppression of all evidence seized

on the date at issue, none of which were argued before the trial court. Next, the certified

question asks this court to examine “the search and subsequent arrest of the defendant,” when

the record shows that Hawks was not searched. The certified question is further flawed

because it does not specify what police action rendered the search and arrest unconstitutional.

For example, it is unclear whether Hawks is challenging the search of his home, the opening

of the Igloo cooler, or the search of the outbuildings as part of the curtilage of his property.

Moreover, the certified question does not adequately set forth the legal basis for Hawks’

claim. It generally refers to a violation of the Fourth Amendment of the United States

Constitution and Article I, Section 7 of the Tennessee Constitution and fails to specify which

exception to the warrant requirement applies. See State v. Tobias Toby Horton, No.

W2008-01170-CCA-R3-CD, 2009 WL 2486173, at *6 (Tenn. Crim. App., at Jackson, Aug.

13, 2009) (“In light of the facts of this case and the trial court’s ruling at the suppression

hearing, the failure to mention the exigency exception to the warrant requirement in the

certified question of law is fatal to this appeal.”). In particular, the question does not mention

probable cause, plain view, or the exigent circumstances exception to the warrant

requirement, all of which presumably would be central to Hawks’ claim. As framed, the

question is patently non-specific because it fails to identify the scope and limits of the legal

issue raised and the reasons relied upon by Hawks at the suppression hearing. The broad

terms of the certified question are not cured by Hawks’ restatement of the issue on appeal,

which is set forth in slightly narrowed terms. See id.; Kale J. Sandusky, 2009 WL 537526,

-6-

at *3. Because Hawks has failed to properly identify the scope and limits of the legal issue

reserved, we are without jurisdiction to consider this appeal. Accordingly, the appeal is

dismissed.

CONCLUSION

Upon review, we conclude that Hawks did not properly identify the scope and limits

of the issue reserved in his certified question of law, and we are without jurisdiction to

consider the appeal. Accordingly, the appeal is dismissed.

______________________________

CAMILLE R. McMULLEN, JUDGE

-7-