Court of Criminal Appeals of Tennessee, Nashville
Session January 17, 2019
from the Circuit Court for Wayne County No. 15744 Stella L.
James Mitchell, entered a plea of guilty to possession with
intent to sell more than .5 grams of methamphetamine. The
trial court sentenced Defendant as a Range I, standard
offender, to eight years. Defendant attempted to reserve 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 his motion to suppress the evidence
seized after a search of his person that occurred when he
arrived by car at another person's home which was being
searched pursuant to a search warrant. After review, we
conclude that this Court does not have jurisdiction to
address the certified question because the certification did
not meet the requirements of State v. Preston, 759
S.W.2d 647 (Tenn. 1988). The appeal is, therefore, dismissed.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Brandon E. White, Columbia, Tennessee (on appeal) and
Hershell Koger, Pulaski, Tennessee (at trial) for the
appellant, James Mitchell.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Assistant Attorney General; Brent A.
Cooper, District Attorney General; and Beverly White,
Assistant District Attorney General, for the appellee, State
T. Woodall, J., delivered the opinion of the court, in which
Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.
T. WOODALL, JUDGE.
filed a motion to suppress the evidence seized during a
search of his person, alleging the following grounds:
Defendant submits that the search of Defendant's person
was unlawful on the following bases to wit: The search was
warrantless, the search was beyond the scope of the search
warrant; the search warrant was overbroad; the search warrant
did not apply to the Defendant's person; the detention of
the Defendant was unlawful; the search of the Defendant was
unlawful; the degree of the search of the Defendant was
a hearing, the trial court denied Defendant's motion to
suppression hearing, Investigator Dusty Malugen of the Wayne
County Sheriff's Office testified that on July 7, 2015,
he obtained a search warrant for the residence of Arnold
Stevens located at 199 Jennifer Lane in Collinwood.
Investigator Malugen noted that a confidential informant
("CI") had previously gone to the residence on July
6, 2015, and purchased "illegal narcotics" from Mr.
Stevens and Jodie Cox. He said that "approximately nine
pounds of marijuana, Schedule I LSD acid, several drug
paraphernalia, firearms, et cetera" were found during
the search. Investigator Malugen noted that Defendant was not
at the residence when they began executing the warrant. He
said that Defendant pulled into the driveway during the
search in a red Ford Bronco II, and Ms. Cox was in the
vehicle with him. Investigator Malugen testified that the
property was "in the middle of nowhere," and the
residence was at a "dead end." He had no doubt that
Defendant was going to the home since it was highly unlikely
a person would inadvertently drive to the home. Another
female, Bailey Atkinson, was also in the vehicle with
Defendant and Ms. Cox. Deputy Malugen knew that Ms. Cox had
outstanding warrants for her arrest.
Malugen testified that Ms. Cox was removed from the vehicle
and taken into custody. He also had Defendant get out and
stand next to his Bronco. He said: "For officer safety,
I did a pat down on [Defendant]." To his knowledge, he
did not place his hands inside Defendant's pockets.
Investigator Malugen further testified: "I have made it
a common habit to ask them if they have any weapons, firearm,
anything like that on them. [Defendant] said he did have a
knife in his pocket." He asked Defendant to remove the
knife very slowly. Defendant then pulled the knife out along
with a bag of ...