PEOPLE OF MI V EDWARD JOHN ABDELLA
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 12, 1999
Plaintiff-Appellee,
v
No. 197935
Oakland Circuit Court
LC No. 95-140824 FH
EDWARD JOHN ABDELLA,
Defendant-Appellant.
Before: Sawyer, P.J., and Bandstra and R.B. Burns*, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession of less than twenty-five grams of
cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), possession of marijuana, MCL
333.7403(2)(d); MSA 14.15(7403)(2)(d), and possession of a firearm during the commission of a
felony, MCL 750.227b; MSA 28.424(2). The court sentenced defendant to consecutive prison terms
of two years for felony-firearm and one to four years for possession of cocaine. Defendant was
sentenced to the time served of eighty-seven days in jail for possession of marijuana. He now appeals
as of right. We affirm.
Defendant first argues that the affidavit in support of the search warrant contained false
statements and omitted material information. Defendant challenged the validity of the affidavit in the
district court. At an evidentiary hearing in conjunction with the preliminary examination, the court
accepted a stipulation to excision of one paragraph from the affidavit. The court then ruled that
defendant had not established that any other information needed to be excised, the redacted affidavit still
supported probable cause for issuance of the warrant, and, therefore, the evidence did not need to be
suppressed.
We review the lower court’s findings of fact for clear error only, but we review the ultimate
decision regarding a motion to suppress de novo. People v Darwich, 226 Mich App 635, 637; 575
NW2d 44 (1997). If a defendant shows by a preponderance of the evidence that the affidavit in
support of a search warrant contained false statements or material omissions, which were made
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
-1
knowingly, intentionally, or with a reckless disregard for the truth, the evidence obtained from the
resulting search must be suppressed if the false information or omissions were necessary to the finding of
probable cause. Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978);
People v Chandler, 211 Mich App 604, 612-613; 536 NW2d 799 (1995); People v Stumpf, 196
Mich App 218, 224; 492 NW2d 795 (1992). If the affidavit would still support a finding of probable
cause for the issuance of the warrant after false information has been redacted and in light of any
material omissions, the evidence need not be suppressed. People v Melotik, 221 Mich App 190, 200
202; 561 NW2d 453 (1997); Chandler, supra at 613; People v Kolniak, 175 Mich App 16, 21-23;
437 NW2d 280 (1989).
We first note that although defendant argues that the redacted affidavit was “completely
inadequate and misleading,” his brief on appeal fails to specify what statements were false or what
material information was omitted. Because defendant has failed to argue the merits of this issue, we
deem it abandoned. People v McClain, 218 Mich App 613, 615; 554 NW2d 608 (1996); People v
Kent, 194 Mich App 206, 209-210; 486 NW2d 110 (1992). Nonetheless, we have reviewed the
affidavit, warrant, evidentiary hearing transcript, as well as the motion and supporting brief filed by
defendant in the district court. We find that defendant’s assertion that certain items did not exist does
not necessarily follow from the fact that those items were not seized during the subsequent search. The
hearing testimony supported the information in the affidavit. Also, we are not convinced that the
magistrate’s basis for probable cause would have been eroded by the inclusion of the details that
defendant claims were omitted. Therefore, the district court’s decision to examine the four corners of
the rest of the redacted affidavit for probable cause was not clearly erroneous.
The redacted affidavit still included information that: (1) there had been a gunfight at defendant’s
residence; (2) during the course of a protective sweep of the house, a police officer made observations
of objects in plain sight; (3) there were cut straws associated with the snorting of cocaine, baggies and
foil associated with the packaging of controlled substances, and some white powder that looked like
cocaine, all in a bucket of water; (4) there were strainers and an item used to facilitate the weighing of
substances in the same area; and (5) there was a handgun, a long gun, numerous bullet holes, spent
casings, and live shells in the house. From this, a person of reasonable caution could have concluded
that contraband and evidence of criminal conduct would be found in defendant’s house. Therefore, the
district court did not err in refusing to suppress the evidence and quash the warrant. Darwich, supra at
636-637.
Defendant next argues that the trial court erred in denying his motions for directed verdict on the
possession of cocaine charge. We disagree. When ruling on a motion for a directed verdict, the court
must consider the evidence in a light most favorable to the prosecution and determine whether a rational
trier of fact could find that the essential elements of the crime had been proven beyond a reasonable
doubt. People v Anderson, 209 Mich App 527, 537; 531 NW2d 780 (1995).
To obtain a conviction for possession of less than twenty-five grams of cocaine, the prosecutor
needed to prove (1) that defendant knowingly or intentionally possessed a substance that was (2) in an
amount less than twenty-five grams of any mixture containing cocaine. MCL 333.7403(2)(a)(v); MSA
14.15(7403)(2)(a)(v); People v Pegenau, 447 Mich 278, 303 (Mallett, J.); 523 NW2d 325 (1994).
-2
An expert testified that one of the substances recovered from defendant’s house was .28 grams of
cocaine, and defendant does not dispute that fact on appeal. The sole issue raised here is whether there
was sufficient evidence that defendant possessed the cocaine.
Possession of cocaine may be actual (where it is found on the person) or constructive (when it is
within a person’s dominion or control); it may be exclusive (i.e., only possessed by one person) or joint
(where more than one person is in actual or constructive possession). People v Wolfe, 440 Mich 508,
519-520; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); People v Fetterley, 229 Mich
App 511, 515; 583 NW2d 199 (1998). While mere association with, or presence at, a house where
drugs are found is insufficient to establish constructive possession, it is established “when the totality of
the circumstances indicates a sufficient nexus between the defendant and the contraband.” Wolfe,
supra at 520-521. “The essential question is whether the defendant had dominion or control over the
controlled substance.” Fetterley, supra. Circumstantial evidence and reasonable inferences therefrom
are sufficient to establish possession. Id.
In the present case, defendant was a joint owner of the house in which cocaine was found and
his dominion and control over the premises were definitively established by his armed repulsion of
intruders on the night in question. One of the witnesses told police that the cocaine was in the house
before he arrived. In proximity to the cocaine were materials commonly used for packaging cocaine, a
substance commonly used to dilute cocaine, equipment typically used for mixing cocaine, and cut straws
that are often used for snorting cocaine. Thus, cocaine was not only present in defendant’s house, it
was apparently being processed there. From all of this, a rational jury could have found beyond a
reasonable doubt that defendant constructively possessed the cocaine found in his home.
Defendant’s final argument is that his felony-firearm conviction must be vacated because the
statute proscribing the possession of a firearm during the commission of a felony unconstitutionally
infringes upon his right to keep and bear arms under both the federal and Michigan Constitutions and
because of vagueness. However, defendant cites no authority in support of these constitutional
arguments and we consider them waived. People v Hanna, 223 Mich App 466, 470; 567 NW2d 12
(1997); People v Dilling, 222 Mich App 44, 51; 564 NW2d 56 (1997). We further note that the
Second Amendment to the United States Constitution is not applicable to the states. People v Swint,
225 Mich App 353, 359-360; 572 NW2d 666 (1997). As to the Michigan Constitution, its right to
bear arms provision embodies a rule of reason rather than an absolute. It does not protect the right to
keep and bear arms in and of itself, but rather for the purpose of defending self or state. The right is
subject to reasonable regulation by the Legislature under the police power. Id. at 362-363, 375. See,
also, People v Zerillo, 219 Mich 635, 638; 189 NW 927 (1922). The felony-firearm statute punishes
“possession” not “use” of a firearm while committing a felony. MCL 750.227b(1); MSA
28.424(2)(1); People v Williams, 212 Mich App 607, 609; 538 NW2d 89 (1995). The purpose is to
reduce the risk of harm to others because a felon may be tempted to use his firearm if the criminal
enterprise goes awry. Williams, supra. “[T]he legitimate legislative purpose of keeping guns out of the
hands of those most likely to use them against the public” such as “felons, who have exhibited their
disregard for ordered society,” is a reasonable restriction on the right to bear arms imposed by the state
-3
exercising its police powers. Swint, supra at 374-375. Accordingly, even if this issue was preserved,
the felony-firearm statute is not unconstitutional as applied against defendant.
We affirm.
/s/ David H. Sawyer
/s/ Richard A. Bandstra
/s/ Robert B. Burns
-4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.