State of Tennessee v. Anthony T. Tollis

08/29/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

May 29, 2019 Session

STATE OF TENNESSEE v. ANTHONY T. TOLLIS

Appeal from the Criminal Court for Hamilton County

No. 294649 Barry A. Steelman, Judge

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No. E2018-01695-CCA-R3-CD

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The Defendant, Anthony T. Tollis, entered a plea of nolo contendre to sexual exploitation

of a minor. The Defendant reserved a certified question of law pursuant to Tennessee

Rule of Criminal Procedure 37(b)(2) as to whether the search of the Defendant’s

computer was lawful based on the search warrant. After a thorough review of the record

and relevant authorities, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Mike A. Little, Deputy Public Defender; Ted Engel and Victoria L. Smith, Assistant

Public Defenders, Chattanooga, Tennessee, for the appellant, Anthony T. Tollis.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant

Attorney General; Neal Pinkston, District Attorney General; and Leslie A. Longshore,

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

OPINION

I. Facts

This case arises from the discovery of sexual images of minors stored on the

Defendant’s home computer. Based on information received from a family member

staying at the Defendant’s home for a few days, law enforcement sought and obtained a

search warrant for the Defendant’s computer. Investigators subsequently searched the

Defendant’s computer and found images of underage nude girls. For this conduct, a

Hamilton County grand jury indicted the Defendant for one count of sexual exploitation of

a minor and two counts of aggravated sexual exploitation of a minor.

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A. Motion to Suppress

The Defendant filed a motion to suppress the evidence obtained during the search of

his computer, contending that the search warrant authorizing the search was not based on

sufficient probable cause. The affidavit in support of the search warrant and the warrant

itself were attached to the motion. The facts contained in the affidavit in support of the

search warrant were as follows:

On December 5, 2014, Mr. James Tollise went to visit his uncle, [the

Defendant], at his residence located [in Hamilton County].

The [Defendant’s] residence . . . is more particularly described as a brick

duplex with a brown roof. [The Defendant] resides on the left side of the

duplex when viewing the duplex from [the street], which is the side located

closest to the driveway.

Mr. James Tollise stated that his uncle, [the Defendant], made statements to

him about wanting to fulfil[l] [the Defendant’s] sexual fantasy about being

with a teenage girl. Mr. James Tollise stated that this statement made him

suspicious about incidents and statements that have happened in the past.

On December 6, 2014, Mr. James Tollise got on [the Defendant’s] computer

around [7:00 a.m.].

Mr. James Tollise stated that [the Defendant’s] computer was located on a

glass desk directly in front of the front door of [the residence]. [Mr. James

Tollise] further described the computer as a “custom built” computer with

the sides off for ventilation.

Mr. James Tollise stated that he clicked on the “My Photos” icon and saw at

least fifteen (15) individual folders.

These folders had first name and first/last names of individuals.

Mr. James Tollise stated that he clicked on a folder named “[V.R.]”1

Mr. James Tollise stated that he saw numerous pictures of a female he

believed to be over the age of fourteen (14) and younger than eighteen (18).

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It is the policy of this court to utilize a minor victim’s initials to protect his or her identity.

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Mr. James Tollise stated that there were pictures of the female clothed, full

nudity, and topless. He described these photographs as “selfies,” meaning

that the pictures appeared to be taken by the female and not someone else.

Mr. James Tollise stated that he saw another folder named “[S.C.]” He

stated that he does not remember if he looked at this folder.

Mr. James Tollise stated that in the folders, there were also messages that

appeared to have been sent to these individuals. He stated that one of the

messages contained wording that read “Do you have any pictures of yourself

when you were younger.”

The trial court held a hearing on the Defendant’s motion, during which no evidence

was presented. Both parties made arguments to the trial court, and the trial court denied

the Defendant’s motion to suppress, concluding that the search warrant was based on

probable cause in the affidavit. The Defendant sought an interlocutory appeal, pursuant to

Tennessee Rule of Appellate Procedure 9, arguing that the search warrant lacked probable

cause, which the trial court denied, following which the Defendant filed an application for

extraordinary appeal, pursuant to Tennessee Rule of Appellate Procedure 10, which this

court denied. The trial court issued an agreed order reserving the following certified

question of law:

Whether the trial court erred in denying [the Defendant’s] motion to

suppress evidence collected by the City of Red Bank Police Department’s

execution of the search warrant finding the affidavit in support of the request

for search warrant and seizure warrant established probable cause. The

reasons relied on by the Defendant in the trial court suppression hearing were

that:

a. The affiant, Detective Michael Ray, did not indicate in the

affidavit that the Defendant possessed material that

included a minor engaged in sexual activity.

b. Relying only on the informant’s information provided in

the affidavit for the search warrant, there is not a substantial

basis for concluding from the totality of the circumstances

that Detective Ray would uncover evidence of wrongdoing.

c. An informant’s opinion that the Defendant possessed nude

photos of what he believed to be underage females is not

enough to establish probable cause that the Defendant

possessed, intended to distribute, or promoted [sexual]

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exploitation of a child under T.C.A. § 39-17-1003 through

§ 39-17-1005.

d. Therefore the affidavit failed to sufficiently establish

probable cause for the issuance of the search warrant.

Thereafter, the Defendant entered a plea of nolo contendre to sexual exploitation of

a child. The remaining charges were dismissed. The trial court entered the judgment

incorporating the above certified question of law and sentenced the Defendant to two years

of supervised probation.

II. Analysis

A. Certified Question of Law

Because this appeal comes before us as a certified question of law, pursuant to Rule

37(b) of the Tennessee Rules of Criminal Procedure, we must first determine whether the

question presented is dispositive. The 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) (alterations in original) (quoting State v.

Walton, 41 S.W.3d 75, 96 (Tenn. 2001); State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim.

App. 1984)). An issue is never dispositive when this Court may exercise the option to

reverse and remand. Wilkes, 684 S.W.2d at 667. This Court “‘is not bound by the

determination and agreement of the trial court, a defendant, and the State that a certified

question of law is dispositive of the case.’” Dailey, 235 S.W.3d at 134-35 (quoting State

v. Thompson, 131 S.W.3d 923, 925 (Tenn. Crim. App. 2003)). This Court must make an

independent determination that the certified question is dispositive. Id. at 135 (citing

State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988)). Rule 37(b)(2) of the Tennessee

Rules of Criminal Procedure provides that a defendant may appeal from any judgment or

conviction occurring as the result of a guilty plea. State v. Long 159 S.W.3d 885, 887

(Tenn. Crim. App. 2004). The following are prerequisites for an appellate court’s

consideration of the merits of a question of law certified pursuant to Rule 37(b)(2):

(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 reserved by the defendant 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 judge; and

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

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

case . . . .

Tenn. R. Crim. P. 37(b)(2)(A)(i)-(iv).

In Preston, our supreme court stated its intention to “make explicit to the bench and

bar exactly what the appellate courts will hereafter require as prerequisites to the

consideration of the merits of a question of law certified pursuant to Tenn. R. Crim. P.

37(b)(2)(i) or (iv).” 759 S.W.2d at 650. Failure to properly reserve a certified question

of law pursuant to the requirements stated in Preston will result in the dismissal of the

appeal. Woodlee, 2010 WL 27883, at *2 (citing State v. Pendergrass, 937 S.W.2d 848,

838 (Tenn. 1996)). The importance of complying with the Preston requirements has been

reiterated by our supreme court in State v. Armstrong, 126 S.W.3d 908 (Tenn. 2003),

which stated that the Preston requirements are “explicit and unambiguous,” in rejecting the

defendant’s argument in favor of substantial compliance with Tennessee Rules of Criminal

Procedure 37. Id. at 912.

In the case under submission, the Defendant’s issue on appeal meets these

requirements: he entered a plea of guilt; the judgment form incorporates the certified

question; and the certified question is stated so as to identify clearly the scope and limits of

the legal issue reserved and is dispositive of the case. Thus, we conclude that the issue is

properly before this court.

B. Validity of the Search Warrant

The Defendant contends that the search warrant was obtained based on an affidavit

that did not establish probable cause. He contends that sexual activity was not described

in the affidavit; thus no probable cause existed of a violation of Tennessee Code Annotated

sections 39-17-1003–1005 (2014). He argues that the informant’s, his nephew,

statements that he had found images of nude underage girls on the Defendant’s computer

were a matter of opinion and that probable cause could not have been establish based on

these statements. This, the Defendant claims, makes the search warrant invalid and the

evidence seized in the search illegal. The State replies that there were more than enough

facts contained in the affidavit to overcome the minimal threshold requirements for

probable cause. For these reasons, the State claims that the trial court properly denied the

Defendant’s motion to suppress. We agree with the State.

Our standard of review for a trial court’s findings of fact and conclusions of law

on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.

1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will

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be upheld unless the evidence preponderates otherwise.” Id. at 23. This Court reviews

de novo the trial court’s application of the law to the facts, without according any

presumption of correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81

(Tenn. 2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999). The trial court, as

the trier of fact, is able to assess the credibility of the witnesses, determine the weight and

value to be afforded the evidence, and resolve any conflicts in the evidence. Odom, 928

S.W.2d at 23.

We begin our analysis with the Fourth Amendment to the United States

Constitution, made applicable to the states through the Fourteenth Amendment, which

provides as follows:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, will not be violated,

and no warrants will issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.

U.S. Const. amend. IV; see Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d

1081 (1961). Similarly, article I, section 7 of the Tennessee Constitution provides:

[P]eople shall be secure in their persons, houses, papers and possessions,

from unreasonable searches and seizures; and that general warrants,

whereby an officer may be commanded to search suspected places, without

evidence of the fact committed, or to seize any person or persons not

named, whose offenses are not particularly described and supported by

evidence, are dangerous to liberty and not to be granted.

Tenn. Const. art. I, § 7.

“[A] search warrant shall be issued only on the basis of an affidavit, sworn before

a ‘neutral and detached’ magistrate, which establishes probable cause of its issuance.”

State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). To establish probable cause to

issue a search warrant, an affidavit must supply reasonable grounds for suspicion that an

illegal act is occurring. Id. Thus, the need for the magistrate to make a neutral and

detached decision regarding the existence of probable cause requires that the affidavit

contain more than mere conclusory allegations by the affiant. State v. Moon, 841

S.W.2d 336, 338 (Tenn. Crim. App. 1992).

An affidavit must show a nexus between the criminal activity, the place to be

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searched, and the items to be seized in order to give a magistrate probable cause to issue a

warrant. State v. Reid, 91 S.W.3d 247, 273 (Tenn. 2002); State v. Smith, 868 S.W.2d

561, 572 (Tenn. 1993). When the affidavit contains no direct evidence of such a nexus,

“we must . . . determine whether it was reasonable for the magistrate to infer that the item

of contraband listed in the affidavit would be located” in the place to be searched. State

v. Saine, 297 S.W.3d 199, 206 (Tenn. 2009).

[T]here are two circumstances that authorize the impeachment of an

affidavit sufficient on its face[:] (1) a false statement made with intent to

deceive the Court, whether material or immaterial to the issue of probable

cause[;] and (2) a false statement, essential to the establishment of probable

cause, recklessly made.” State v. Little, 560 S.W.2d 403, 407 (Tenn.

1978). “Allegations of negligence or innocent mistakes are insufficient to

invalidate the search warrant.” State v. Yeomans, 10 S.W.3d 293, 297

(Tenn. Crim. App. 1999) (citing Franks v. Delaware, 438 U.S. 154, 171, 98

S.Ct. 2674, 57 L.Ed.2d 667 (1978)). The defendant bears the burden of

proving the allegation of falsity by a preponderance of the evidence. Id.

(citing Franks, 438 U.S. at 156, 98 S.Ct. 2674).

State v. Tuttle, 515 S.W.3d 282, 308 (Tenn. 2017).

The evidence does not preponderate against the trial court’s findings that the

search warrant was valid with sufficient probable cause. The affidavit states that the

informant observed photographs on the Defendant’s computer which he believed to be of

nude underage females. He provided the names of the females listed in the computer.

He described messages that appeared to be sent from the Defendant to the females,

asking to see more photos of them when they were younger. This is sufficient

information to give investigators probable cause to believe that evidence of a crime, at a

minimum the possession of child pornography, was contained on the Defendant’s

computer. The fact of whether “sexual activity,” an element of sexual exploitation of a

child which the Defendant ultimately pleaded guilty to, was occurring or had occurred

was not essential to establishing probable cause for issuance of the search warrant.2 The

specific information provided to investigators by the Defendant’s nephew about what he

2

Tennessee Code Annotated sections 39-17-1001 to -1008 criminalizes, among other things, the possession,

distribution, and production of child pornography. Tenn. Code Ann. §§ 39-17-1003 to -1005; see also State v.

Sprunger, 458 S.W.3d 482, 485 n.4 (Tenn. 2015). Whether a nude photograph of an underage individual amounts to

a “lascivious” or sexually provocative depiction of the individual, sufficient to establish the occurrence of “sexual

activity” as defined in section 39-17-1002, is a question of fact that is addressed on a case-by-case basis. See State v.

Whited, 506 S.W.3d 416, 430 (Tenn. 2016) (stating that “determining whether certain material depicts a minor

engaging in the lascivious exhibition of their private body areas within the meaning of the sexual exploitation statutes

is . . . “‘an intensely fact-bound question.’”)

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had seen on the Defendant’s computer provided probable cause for the issuance of the

search warrant and, therefore, the evidence was seized pursuant to the lawful execution of

the search warrant. Accordingly, the trial court did not err when it denied the

Defendant’s motion to suppress. The Defendant is not entitled to relief.

III. Conclusion

After a thorough review of the record and the applicable law, we affirm the trial

court’s judgment.

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ROBERT W. WEDEMEYER, JUDGE

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