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State v. Mitchell

Court of Criminal Appeals of Tennessee, Nashville

August 21, 2019

STATE OF TENNESSEE
v.
JAMES MITCHELL

          Session January 17, 2019

          Appeal from the Circuit Court for Wayne County No. 15744 Stella L. Hargrove, Judge.

         Defendant, 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.

         Tenn. 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 of Tennessee.

          Thomas T. Woodall, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          THOMAS T. WOODALL, JUDGE.

         I. Factual Background

         Defendant 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 unlawful.

         Following a hearing, the trial court denied Defendant's motion to suppress.

         At the 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.

         Investigator 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 ...


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