PEOPLE OF MI V LUIS FRANCISCO MARTINEZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 17, 2009
Plaintiff-Appellee,
v
No. 280284
Livingston Circuit Court
LC No. 06-015579-FH
LUIS FRANCISCO MARTINEZ,
Defendant-Appellant.
Before: Murphy, P.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
Defendant was found guilty following a bench trial of possession with the intent to
deliver 50 grams or more but less than 450 grams of a controlled substance (to wit: cocaine),
MCL 333.7401(2)(a)(iii), and was sentenced to fifty-one months’ to twenty years’ imprisonment.
He appeals by right. We affirm.
On January 14, 2005, members of the Jackson Narcotics Enforcement Team (JNET)
executed a search warrant at defendant’s home, where defendant was present with his fiancé, his
fiancé’s brother, and his five children. Police officers seized a large quantity of cocaine and
some marijuana seeds from the home. Defendant verbally admitted to the officers and gave a
written statement admitting that he purchased the cocaine from a friend in Chicago for $11,000
and gave it to his brother-in-law to hide in defendant’s basement.
On appeal, defendant first argues that the trial court erred by refusing to suppress the
evidence seized from his home on the ground that his Fourth and Fourteenth Amendment rights
were violated because the search warrant affidavit failed to establish probable cause that
evidence of a crime would be presently found at his residence. We disagree.
Probable cause exists where a reasonably prudent person, considering all of the known
facts and circumstances, would be justified in believing that contraband or evidence of a crime
will be found in the stated place. Ornelas v United States, 517 US 690, 696; 116 S Ct 1657; 134
L Ed 2d 911 (1996).
Defendant argues that while there may have been probable cause to believe he was
personally involved in drug trafficking, that information alone, combined with nothing more than
the affiant’s training and experience, provided only a mere hunch that evidence of a crime would
be found at his home.
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Defendant’s arguments fail because the affidavit did contain probable cause that a search
of his home would uncover evidence of drug trafficking. The affidavit demonstrated that
defendant’s home was specifically connected to his criminal activity. One of defendant’s
employees had witnessed defendant exit his home and enter his white truck, where he placed
methamphetamine inside the glove box.
In People v Darwich, 226 Mich App 635, 638, 640; 575 NW2d 44 (1997), the search
warrant affidavit stated that officers had witnessed the defendant selling marijuana out of his
store, but that they had found no significant quantity of marijuana at the store. The affidavit
stated that a search of the defendant’s residence would uncover evidence associated with his drug
trafficking, based upon the affiant’s experience, which “led him to believe that it is common for
drug dealers to package and store narcotics at one location and distribute them at another.” Id.
The Court found that these statements, “together with the statements implicating defendant in the
selling of narcotics, lead to a logical inference that defendant stored elsewhere the materials used
in the operation,” and thus, the “[d]efendant’s residence was a logical place to look for the source
of the marijuana packets sold at defendant’s store.” Id. at 640.
Similarly, in the present case, in addition to the affiant’s training and experience and the
statements implicating defendant in the selling of narcotics, the affidavit also stated that
defendant operated his legitimate business, Textura Plastering, from his home; consequently, the
court could properly conclude that defendant’s residence was the only logical place to look for
evidence of his drug trafficking. Thus, the affidavit was not based upon mere speculation that
evidence of a crime would be found at defendant’s home. Rather, the observations of
defendant’s employee, as well as the affiant’s training and experience and investigation of the
case, demonstrated probable cause that evidence of a crime would be found in defendant’s home.
Defendant additionally argues that the affidavit did not contain probable cause that
evidence of a crime would be presently found at his residence, i.e., that the search warrant was
stale. A search warrant is stale “if the probable cause, while sufficient at some point in the past,
is now insufficient as to evidence at a specific location.” United States v Abboud, 438 F3d 554,
572 (CA 6, 2006). Defendant asserts that the affidavit only states that his employee worked for
him for two months, without any other reference as to when the employee visited defendant’s
residence, or any mention of a date that criminal activity occurred at the home.
Nonetheless, the affidavit did establish that defendant lived and conducted his legitimate
business from his residence and that he continued to sell methamphetamine from the residence,
with the most recent transaction occurring the day before the affidavit was prepared. Moreover,
time is not the only factor to be considered in determining whether probable cause exists to
believe that evidence is presently located at the place to be searched. Other factors include
“whether the crime is a single instance or an ongoing pattern of protracted violations, whether
the inherent nature of a scheme suggests that it is probably continuing, and . . . whether [the
property sought] is likely to be promptly disposed of or retained by the person committing the
offense.” People v Russo, 439 Mich 584, 605-606; 487 NW2d 698 (1992).
“The likelihood that the evidence sought is still in place is a function not simply
of watch and calendar but of variables that do not punch a clock: the character of
the crime (chance encounter in the night or regenerating conspiracy?), of the
criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily
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transferable or of enduring utility to its holder?), of the place to be searched (mere
criminal forum of convenience or secure operational base?), etc. The observation
of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be
stale the day after the cleaning lady has been in; the observation of the burial of a
corpse in a cellar may well not be stale three decades later. The hare and the
tortoise do not disappear at the same rate of speed.” [Id. at 606, quoting 2
LaFave, Search and Seizure (2d ed), § 3.7(a), in turn quoting Andresen v
Maryland, 24 Md App 128, 172; 331 A2d 78 (1975).]
The affidavit alleged that defendant had a large quantity of methamphetamine along with
“packaging material and scales,” and a ledger containing information regarding drug transactions
located inside his white truck. Defendant’s employee worked for him for the two months
preceding the preparation of the affidavit and was in charge of keeping track of his drug
transactions, including the amount of drugs sold, the payments received and due, and the amount
of drugs currently on hand. The employee had seen defendant deliver methamphetamine and
had also seen defendant exit his home and enter into his truck, placing methamphetamine inside
the glove box. Further, the employee had informed the police that defendant had received a
shipment of methamphetamine “approximately a month ago,” and that defendant had approached
the employee regarding finding someone who wanted to purchase it. Thus, the character of the
crime was not a “chance encounter” but was continuing; the criminal was not “nomadic” but
rather “entrenched”; the things to be seized were of “enduring utility” to defendant; and the
character of defendant’s residence was not a “forum of convenience,” but rather a “secure
operational base.”
Moreover, as to time, the affidavit revealed that defendant sold methamphetamine to a
third person on the day before the affidavit was prepared, and that he had done so two or three
times since he was introduced to that person during the two months preceding the preparation of
the affidavit. Accordingly, the affidavit demonstrated probable cause that evidence of a crime
would be presently found at defendant’s residence.
Next, defendant argues that his Fourth Amendment right to be free from an unreasonable
search and seizure was violated because the search warrant failed to particularly describe the
items to be seized by the investigating officers. Thus, defendant asserts the trial court erred in
denying his motion to suppress evidence. We disagree.
The particularity clause of the Fourth Amendment is designed to prevent a “general
exploratory rummaging in a person’s belongings.” Coolidge v New Hampshire, 403 US 443,
467; 91 S Ct 2022; 29 L Ed 2d 564 (1971). Defendant argues that the search warrant improperly
authorized a general search and allowed police officers to exercise unfettered discretion in
determining what to seize because it included the following to be seized, secured, and tabulated:
Any and all vehicles associated with the residence at the time the search warrant
is executed whether located on the street or within the curtilage of the residence.
Any and all out buildings, trailers or garages at the time the search warrant is
executed.
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Any and all persons present and their clothes at the time the search warrant is
executed.
Any and all vehicles registered to [T]extura [P]lastering.
Any and all buildings, trailer [sic], doing business as [T]extura [P]lastering.
Defendant relies on Groh v Ramirez, 540 US 551, 559-560; 124 S Ct 1284; 157 L Ed 2d
1068 (2004). In Groh, the police were searching for a stockpile of weapons. Instead of listing
and describing any item to be seized, the search warrant only listed the seizure of a two-story
house. Id. at 554. The Court found:
This warrant did not simply omit a few items from a list of many to be seized, or
misdescribe a few of several items. Nor did it make what fairly could be
characterized as a mere technical mistake or typographical error. Rather, in the
space set aside for a description of the items to be seized, the warrant stated that
the items consisted of a ‘single dwelling residence . . . blue in color.’ In other
words, the warrant did not describe the items to be seized at all. In this respect
the warrant was so obviously deficient that we must regard the search as
‘warrantless’ within the meaning of our case law. [Id. at 558.]
In contrast, the search warrant in the present case listed not only the vehicles and
buildings specified above, but it also described the following items to be seized: controlled
substances, including but not limited to methamphetamine, items used to package and process
controlled substances, items taken in exchange for controlled substances (e.g., US currency,
weapons, records such as deeds, bills, leases, bank records, etc.), and items used in drug
transactions such as tally sheets, ledgers, notebooks, video tapes, cassette tapes, etc. The police
did not actually seize any vehicles, trailers, outbuildings, or garages, but they were secured.
In any event, the remedy for a search warrant that is overbroad is not invalidation of the
entire warrant, but rather “to sever the infirm portion of the search warrant from the remainder
which passes constitutional muster.” Abboud, supra at 576. The evidence seized from
defendant’s home was not within the overbroad portion of the search warrant, it was
encompassed in the remainder of the search warrant “which passes constitutional muster.”
Accordingly, the trial court correctly denied defendant’s motion to suppress the evidence seized
from his home.
Defendant next argues that the trial court erred in denying his motion to suppress
evidence because the good faith exception to the exclusionary rule does not apply. We disagree.
In People v Goldston, 470 Mich 523, 530, 542-543; 682 NW2d 479 (2004), our Supreme
Court adopted the good faith exception to the exclusionary rule, finding that “no deterrence [of
police misconduct] occurs when police reasonably rely on a warrant later found to be deficient.”
The good faith exception applies when an officer’s actions are “within the scope of, and in
objective, good-faith reliance on, a search warrant obtained from a judge or magistrate.” Id. at
530. In United States v Leon, 468 US 897, 923; 104 5 Ct 3405; 82 L Ed 2d 677 (1984), the
United States Supreme Court set out four instances where the good faith exception would not
apply: (1) where the issuing magistrate was misled by information in an affidavit that the affiant
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knew was false or should have known was false except for his reckless disregard for the truth;
(2) where the issuing magistrate wholly abandoned his judicial role and failed to act in a neutral
and detached fashion, serving merely as a rubber stamp for the police; (3) where the affidavit
does not provide the magistrate with a substantial basis for determining the existence of probable
cause, i.e., where the affidavit was so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable; and (4) where the officer could not have reasonably
relied in good faith on the warrant because it was facially deficient.
Defendant asserts that the information set forth in the affidavit was stale, vague, and
overbroad, and the list of items to be seized would have alerted any objectively reasonable
officer that it was an unlawful search warrant. We hold that the police officers’ reliance on the
search warrant was objectively reasonable even if the search warrant were found to be defective
from lack of probable cause that evidence of a crime would be found in defendant’s home, based
on staleness of the search warrant, a lack of particularity in, or the overbroad list of items to be
seized.
First, with regard to the staleness of the search warrant, the affidavit stated defendant sold
cocaine to a third person on the day before the affidavit was prepared. It further referenced the
fact that defendant’s employee had been working for defendant for the two months preceding the
preparation of the affidavit and that during those two months the employee had observed
defendant delivering methamphetamine; the employee had introduced defendant to the third
person for the purpose of initiating a drug transaction, and defendant sold cocaine to the third
person two or three times. Thus, all of the conduct under investigation occurred during the two
months preceding the preparation of the affidavit.
Second, with regard to the lack of particularity, the search warrant did list the seizure of
several items with particularity, for which there was probable cause, but also included a
reference to seizing and securing vehicles, outbuildings, garages, etc., as opposed to searching
them. This may have been a drafting error, but its inclusion did not diminish the affiant’s
objectively reasonable belief that the search warrant was otherwise valid.
Finally, with regard to the lack of probable cause that evidence of a crime would be
found in defendant’s house, there is no evidence that the affiant knowingly prepared a false
affidavit or otherwise acted in bad faith. The warrant was issued by a proper authority, with no
evidence that the issuing magistrate had abandoned his neutral judicial role. Moreover, the
search warrant was not “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable,” Leon, supra, 468 US at 923, because it is undisputed that the
affiant had probable cause to believe that defendant personally had committed a crime, and based
upon the observations of defendant’s employee, and the affiant’s training, experience and
investigation, the police also had probable cause that evidence of a crime would be found in
defendant’s home. United States v Schultz, 14 F3d 1093, 1098 (CA 6, 1994). Accordingly, the
police officers’ reliance on the search warrant affidavit was objectively reasonable, and the good
faith exception should apply.
Finally, defendant argues that the trial court clearly erred in finding that he knowingly,
intelligently, and voluntarily waived his Fifth Amendment rights before making statements to the
police. We disagree.
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A suspect’s relinquishment of Miranda rights must be voluntary, meaning “the product of
a free and deliberate choice rather than intimidation, coercion, or deception.” People v Daoud,
462 Mich 621, 633, 614 NW2d 152 (2000). A waiver must also “have been made with a full
awareness of both the nature of the right being abandoned and the consequences of the decision
to abandon it.” Id. The “totality of the circumstances,” including the suspect’s age, experience,
education, background, and intelligence, and capacity to understand the warnings must reveal
both an uncoerced choice and the requisite level of comprehension to conclude that the Miranda
rights have been effectively waived. Id. at 633-634. The burden is on the prosecution to prove a
valid waiver by a preponderance of the evidence. Id. at 634. To demonstrate that a waiver is
knowing and intelligent, the prosecution must present evidence sufficient to demonstrate that
defendant “understood that he did not have to speak, that he had the right to the presence of
counsel, and that the state could use what he said in a later trial against him.” Id. at 637. “[A]
very basic understanding is all that is required for a valid waiver.” Id. at 642. The prosecution is
not required to demonstrate why a suspect confesses or that he understands the “ramification and
consequences of choosing to waive or exercise” his rights. Id. (citation omitted).
Defendant asserts that having just returned from a four-day cocaine binge, he was under
the influence of drugs at the time his home was searched and the police officers interviewed him.
Further, defendant claims the officers threatened to take his children and all of his possessions
while his family was in police custody, and that this was sufficient coercion to overcome his free
will, forcing him to give the statements and admissions.1
There is ample evidence in the record that defendant made a knowing, intelligent, and
voluntary waiver of his rights in giving his statements to the police. Officer Mark Easter, an
experienced narcotics investigator and member of JNET, often dealt with people under the
influence of drugs and was with defendant “on and off for a couple of hours” during the
execution of the search warrant. Officer Easter observed that defendant was coherent; his speech
was not slurred; he did not appear to be “high” or under the influence of anything; he never fell
asleep or appeared to be exhausted or in need of medical attention; and he was cordial and
cooperative. Defendant gave appropriate responses to questions and, although he was nervous,
he was no more so than anyone else that Officer Easter had dealt with during the execution of a
search warrant. Defendant’s written statement was clear and concise. Officer Easter testified
that he made no promises or threats to defendant, and did not physically abuse defendant.
Officer Jeffrey John Wilson, who was also a member of JNET and was familiar with
people under the influence of alcohol or drugs, testified that defendant was not under the
influence of narcotics or alcohol. Officer Wilson observed defendant give answers that were
clear and crisp and given without delay or fumbling. He observed defendant locate a bankbook
1
We note that the only issue defendant raised in his statement of this issue in his “questions
presented” is whether the prosecution established that he knowingly and voluntarily waived his
Fifth Amendment [Miranda] rights. Defendant conflates into this argument whether the
statements themselves were voluntary. See People v Cipriano, 431 Mich 315, 331-335; 429
NW2d 781 (1988). Generally, this Court need not consider an issue that is not set forth in the
statement of questions presented. People v Brown, 239 Mich App 735, 748; 610 NW2d 234
(2000).
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in the house without any hesitation. According to Officer Wilson, defendant never expressed
any need for help, sleep, or medical attention. Defendant offered an explanation to Officer
Wilson that he did not sell cocaine, but that he only had it for personal use, and that he might
share it at no cost with friends or co-workers. After he made the incriminating statement,
defendant expressed a willingness to cooperate with police in exchange for some consideration.
Thus, defendant demonstrated that he knew and understood his legal jeopardy he and tried to
make a deal. Officer Wilson testified that he had conversations with defendant in person and
over the telephone in the days after defendant had given his statements to the police, and
defendant continued to remain calm and articulate, although he was still nervous.
The only evidence that defendant was under the influence of drugs or coerced by the
police and therefore unable to knowingly, intelligently, and voluntarily waive his rights, came
from self-serving hearsay statements that were introduced through his expert witness, a clinical
psychologist.
We conclude the trial court did not clearly err in finding that defendant knowingly,
intelligently, and voluntarily waived his rights before giving the police his verbal and written
statements. Daoud, supra at 629.
We affirm.
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
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