PEOPLE OF MI V ADAN MENDOZA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 15, 2004
Plaintiff-Appellee,
v
No. 246270
Oakland Circuit Court
LC No. 2002-182537-FH
ADAN MENDOZA,
Defendant-Appellant.
Before: Schuette, P.J., and Bandstra and Cooper, JJ.
PER CURIAM.
Defendant appeals by right his convictions of felon in possession of a firearm, MCL
750.224f, possession of a controlled substance, MCL 333.7413(2), and two counts of felonyfirearm, MCL 750.227b. We affirm.
I. FACTS
Detective Jerry Niedjelski testified that he received information from an anonymous
informant that defendant was trafficking drugs from a house on 575 East Mansfield in Pontiac.
A search of defendant’s name on the central law enforcement system revealed that defendant had
previously been arrested for drug offenses eleven and fourteen years before. Seeking to
corroborate the tipster’s information, Niedjelski conducted surveillance of defendant’s residence
for three days. Although Niedjelski saw defendant go in and out of the house at 575 East
Mansfield, he testified that he did not see any other people or suspicious activity that would
indicate drug trafficking. Niedjelski also testified, however, that he retrieved some bags of trash
from the curb in front of the house and found one tenth of a gram of marijuana stems and seeds,
along with papers bearing defendant’s name. Based on this information, Niedjelski swore out an
affidavit for a search warrant.
On July 10, 2001, detectives of the Oakland County Narcotics Enforcement Team
executed the search warrant. The search resulted in the seizure of five unloaded rifles and a
sawed-off shotgun wrapped in a blanket in the basement, a loaded .22 caliber pistol in a wooden
box also in the basement, an unloaded .32 caliber pistol in a dresser drawer in a bedroom, and a
total of 4.2 grams of marijuana, consisting of one marijuana cigarette, one partially-smoked
marijuana cigarette (“roach”), and a quarter baggie of marijuana weighing approximately 3.3
grams. The detectives also found various items of mail addressed to defendant in the residence,
including an electric bill.
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Defendant moved to suppress the evidence seized, challenging the sufficiency of the
affidavit and the magistrate’s finding of probable cause. The motion was denied. Before trial,
defendant stipulated to a previous felony drug conviction. Despite the stipulation, the prosecutor
questioned defendant about this conviction on cross examination.
Defendant testified at trial that the guns had been removed from his family’s cabin in
northern Michigan to protect them from theft. Defendant stated that the guns were being stored
in his basement at the request of his sister who did not want to keep them because she had small
children. Defendant alleged that he knew the guns were in the basement but did not know
anything more about them. Defendant admitted that he knew he was not permitted to possess
firearms because of his previous felony convictions. He also admitted to possessing the
marijuana for personal use. The jury convicted defendant of two counts of felony-firearm, one
count of felon in possession of a firearm, and one count of unlawful possession of a controlled
substance. The jury acquitted defendant of the charge of possessing a short-barreled shotgun.
Defendant now appeals, claiming unconstitutional search and seizure, prosecutorial
misconduct, ineffective assistance of counsel, and cumulative error.
II. SUPPRESSION OF EVIDENCE
Defendant first claims the evidence seized in his house pursuant to a search warrant
should have been suppressed because the affidavit supporting the warrant contained material
misstatements and was insufficient to support a finding of probable cause. We disagree.
A. Standard of Review
A trial court’s ultimate decision whether to suppress evidence is reviewed de novo, and
the trial court’s underlying findings of fact are reviewed for clear error. People v Beuschlein,
245 Mich App 744, 748; 630 NW2d 921 (2001). However, our Supreme Court has stated that
“appellate scrutiny of a magistrate’s decision involves neither de novo review nor application of
an abuse of discretion standard.” People v Russo, 439 Mich 584, 603; 487 NW2d 698 (1992),
citing Illinois v Gates, 462 US 213; 103 S Ct 2317; 76 L Ed 2d 527 (1983). Rather the reviewing
court need “ask only whether a reasonably cautious person could have concluded that there was a
‘substantial basis’ for the finding of probable cause.” Russo, supra at 603.
B. Analysis
An unintentional misstatement in an affidavit does not require suppression of the
evidence. As we stated in People v Stumpf, 196 Mich App 218, 224; 492 NW2d 795 (1992),
citing Franks v Delaware, 438 US 154; 171-172; 98 S Ct 2674; 57 L Ed 2d 667 (1978):
In order to prevail on a motion to suppress the evidence obtained pursuant
to a search warrant procured with alleged false information, the defendant must
show by a preponderance of the evidence that the affiant had knowingly and
intentionally, or with reckless disregard for the truth, inserted false material into
the affidavit and that the false material was necessary to a finding of probable
cause.
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Defendant provided no evidence – let alone a preponderance of evidence – to support his
allegation that the affiant intentionally or recklessly misnamed his source a confidential
informant instead of an anonymous informant. However, even presuming there was an
intentional misstatement, suppression of the evidence is only required if the information was
necessary to the finding of probable cause. Stumpf, supra at 224. The same standard applies to
material omissions from the affidavit – omissions must be intentional and the information must
be necessary to the probable cause determination. Id., citing People v Kort, 162 Mich App 680,
689; 413 NW2d 83 (1987).
Here, the information was not necessary to the finding of probable cause because the
affidavit also included information about marijuana discovered in defendant’s trash. “[P]robable
cause exists when a person of reasonable caution would be justified in concluding that evidence
of criminal conduct is in the stated place to be searched.” People v Russo, 439 Mich 584, 606607; 487 NW2d 698 (1992). The mere odor of marijuana, if detected by a qualified individual
and testified to before a magistrate, may support a finding of probable cause. Johnson v United
States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948), citing Taylor v United States, 286 US 1;
52 S Ct 466; 76 L Ed 951 (1932). Thus, the discovery of physical evidence of marijuana in
defendant’s trash was sufficient to support the magistrate’s finding of probable cause.
Next, defendant claims the information from the anonymous source must be stricken
from the affidavit because the affidavit violated MCL 780.653. However, our Supreme Court
has held that a violation of MCL 780.653 does not require exclusion of the evidence obtained
thereby. People v Hawkins, 468 Mich 488, 500; 668 NW2d 602 (2003). Moreover, even if the
information from the anonymous source is disregarded, there was probable cause based on the
marijuana evidence alone.
Next, defendant maintains that the prosecutor failed to establish a sufficient “nexus”
between defendant and the trash taken from the curb in front of defendant’s residence in which
marijuana was found. This claim has no merit. The mere possibility of another explanation for
the presence of contraband does not negate a finding of probable cause. Russo, supra at 613.
Investigators are not required to eliminate all other possible sources of contraband before seeking
a warrant. Kort, supra at 688.
Defendant further contends that case law upholds warrants based on trash pulls only
when (1) there is more than one trash pull, (2) there is independent evidence of drug trafficking,
and (3) there is evidence of drug trafficking in the garbage. This argument is refuted by our
holding in People v Pinnix, 174 Mich App 445, 446; 436 NW2d 692 (1989), that a finding of
probable cause may be based on the fruits of a warrantless search of household garbage set out
for collection.
Next, defendant argues that the marijuana found in his trash was not contraband because
the public health code, MCL 333.7106(3), excludes from the definition of “marijuana” the
“mature stalks” or “sterilized seed of the plant.” Even if this were true, defendant offered no
evidence that the marijuana recovered from his garbage consisted of “mature stalks” and
“sterilized seed.” Therefore, this claim is without merit.
III. PRIOR CONVICTION
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Next, defendant claims the prosecutor’s improper inquiry into the specifics of defendant’s
prior drug conviction, in spite of defendant’s stipulation to the prior offense, mandates reversal
under Old Chief v United States, 519 US 172, 117 S Ct 644, 136 L Ed 2d 574 (1997). We
disagree. Old Chief does not mandate reversal in all cases where the prosecutor seeks to
introduce evidence about a stipulated matter. Rather, a prosecutor’s improper inquiry is subject
to harmless error analysis – defendant must show prejudice. People v Swint, 225 Mich App 353,
379; 572 NW2d 666 (1997). Here, the prior conviction was not prejudicial because there was
substantial evidence that defendant unlawfully possessed a firearm. Police found numerous
rifles and a handgun in the basement. A .32 caliber pistol was also found in a dresser drawer in a
bedroom where clothes and several items belonging to defendant were also found. Defendant
also admitted that he possessed and used marijuana and implied that he had sold marijuana or
other drugs at some time in the past. This evidence alone was enough for a reasonable jury to
convict defendant on the marijuana possession charge. Therefore, any prosecutorial misconduct
was harmless and did not deny defendant a fair trial.
IV. EFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant claims ineffective assistance of counsel. However, a Ginther1 hearing is
required to preserve a claim of ineffective assistance of counsel. People v Knapp, 244 Mich App
361, 385; 624 NW2d 227 (2001). Defendant did not move for a Ginther hearing. Therefore, this
claim is not preserved. Regardless, counsel’s failure to object to information regarding
defendant’s prior conviction – even if not trial strategy – was harmless in light of the other
evidence against defendant, including his own admission that he used marijuana.
V. CUMULATIVE ERROR
Next, defendant argues that cumulative error denied him a fair trial. This claim has no
merit. To establish a case of cumulative error, defendant must show “‘cumulative unfair
prejudice,’” and only actual errors may be aggregated to make this showing. People v LeBlanc,
465 Mich 575, 591-592 n 12; 640 NW2d 246 (2002).
As discussed, the trial court did not err in failing to suppress the evidence obtained from
defendant’s house. Nor did the trial court err in failing to grant a mistrial. The prosecutor’s
improper questions about defendant’s prior conviction was the sole potential error at trial, and
this error was harmless. Consequently, we find no cumulative error.
VI. SENTENCING
Finally, defendant claims his sentence was statutorily invalid. The judgment of sentence
was amended to correct the alleged error. Therefore, this issue is moot, and no further action by
this Court is necessary.
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People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Affirmed.
/s/ Bill Schuette
/s/ Richard A. Bandstra
/s/ Jessica R. Cooper
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