{"id":7398,"date":"2012-07-08T10:25:45","date_gmt":"2012-07-08T09:46:24","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-07-08T09:46:24","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=7398","title":{"rendered":"TN: A general appellate brief saying the search was illegal without specifying how justified dismissing the appeal"},"content":{"rendered":"

Like a general motion to suppress, an appeal brief that only generally stated the certified search and seizure question for appeal was insufficient to bring the question up for appeal. State v. Simmons<\/a>, 2012 Tenn. Crim. App. LEXIS 472 (June 26, 2012):<\/p>\n

Here, we conclude that the certified question presented by Simmons 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 “[w]hether the cocaine and oxycodone should have been suppressed by the Circuit Court for an illegal stop and search of Andre Jon Simmons,” he 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 [the defendant’s] residence by police officers,” was overly broad question in violation of Preston), overruled on other grounds by State v. Sigifredo Ruiz, No. M2000-03221-CCA-R3-CD, 2001 WL 1246397, at *4 (Tenn. Crim. App., at Nashville, Oct. 17, 2001).<\/p>\n

Simmons’s certified question is overly broad for several reasons. First, the certified question does not adequately set forth the legal basis for Simmons’s claim. It is unclear whether the police action is allegedly illegal under the United States Constitution, the Tennessee Constitution, or both. Additionally, assuming he alleges a constitutional violation, he fails to mention any of the exceptions to the warrant requirement that potentially apply. 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.”), perm. app. denied (Tenn. Dec. 14, 2009). In particular, the question does not mention reasonable suspicion, probable cause, search incident to arrest, or the automobile exception to the warrant requirement. All of these concepts would presumably be central to Simmons’s 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 Simmons at the suppression hearing. Moreover, the broad terms of the certified question are not cured by Simmons’s narrower assertions in his appellate brief. See id.; Kale J. Sandusky, 2009 WL 537526, at *3. Because Simmons has failed to properly identify the scope and limits of the legal issue reserved, we are without jurisdiction to consider this appeal.<\/p><\/blockquote>\n

You can’t expect an appeals court to do your work for you if you can’t do it yourself.<\/p>\n

[One would hope that the appellate court at least read the record enough to tell that the case would have been affirmed on the merits so as to know at least that a post-conviction petition would fail for lack of prejudice. Whether or not it did, the court’s finding is law of the case on the performance prong of ineffectiveness under Strickland.]<\/p>\n","protected":false},"excerpt":{"rendered":"

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