PEOPLE OF MI V TAVARUS DOGAN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2001
Plaintiff-Appellee,
v
No. 224293
Oakland Circuit Court
LC No. 99-166139-FH
TAVARUS DOGAN,
Defendant-Appellant.
Before: Cooper, P.J., and Cavanagh and Markey, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of possession with intent to
deliver between 50 and 224 grams of cocaine, MCL 333.7401(2)(a)(iii), possession with intent to
deliver less than fifty grams of heroin, MCL 333.7401(2)(a)(iv), and third-degree fleeing and
eluding, MCL 750.479a(3).1 Defendant was sentenced to a term of ten to twenty years’
imprisonment for the possession with intent to deliver between 50 and 224 grams of cocaine
conviction; a term of one to twenty years’ imprisonment for the possession with intent to deliver
less than fifty grams of heroin conviction; and six months’ imprisonment for the third-degree
fleeing and eluding conviction. We affirm.
Defendant first argues that he was denied effective assistance of counsel. Specifically,
defendant contends that his counsel failed to move to suppress evidence that was obtained
pursuant to an illegal search. Because defendant did not request a Ginther2 hearing, this Court's
review is limited to errors apparent on the record. People v Snider, 239 Mich App 393, 423; 608
NW2d 502 (2000). An unpreserved constitutional error only warrants reversal when it was a
plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750, 764, 774;
597 NW2d 130 (1999).
To establish ineffective assistance of counsel, defendant must prove: (1) that his
counsel’s performance was so deficient that he was denied his Sixth Amendment right to counsel
1
Defendant pled guilty to operating a vehicle with a suspended license, MCL 257.904(1)(b), and
was sentenced to six months’ imprisonment for this offense. We note that this statute was
amended by 1998 PA 342, effective October 1, 1999.
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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and he must overcome the strong presumption that counsel’s performance was not sound trial
strategy; and (2) that this deficient performance prejudiced him to the extent that, but for
counsel’s error, the result of the proceedings would have been different. People v Carbin, 463
Mich 590, 599-600; 623 NW2d 884 (2001).
Defendant alleges that defense counsel’s failure to challenge the legality of the search
and seizure for lack of probable cause amounted to ineffective assistance of counsel. We
disagree. We afford great deference to a magistrate’s decision regarding probable cause and
review it to determine if there was “a ‘substantial basis for . . . conclud[ing]’ that a search would
uncover evidence of wrongdoing . . . .” People v Whitfield, 461 Mich 441, 446; 607 NW2d 61
(2000), quoting Illinois v Gates, 462 US 213, 236; 103 S Ct 2317; 76 L Ed 2d 527 (1983).
A valid search warrant must be supported by probable cause. MCL 780.651(1); People v
Ulman, 244 Mich App 500, 509; 625 NW2d 429 (2001). Probable cause exists when “all the
facts and circumstances would lead a reasonable person to believe that the evidence of a crime or
the contraband sought is in the place requested to be searched.” Id. at 509, quoting People v
Brannon, 194 Mich App 121, 132; 486 NW2d 83 (1992).
In this case, the probable cause determination involved statements made by an informant3
who aided the police in the investigation. When analyzing a probable cause determination based
on an informant’s information, the informant’s credibility, the reliability of the information, the
informant’s basis of knowledge, and the independent verification of the information, become
important factors to consider under the totality of the circumstances. People v Levine, 461 Mich
172, 179-180, 183, 185; 600 NW2d 622 (1999), citing Gates, supra at 230.
After reviewing the informant’s statements, we find that a substantial basis existed for the
magistrate’s finding of probable cause that defendant sold drugs to the informant and resided at
19328 Telegraph. People v Russo, 439 Mich 584, 603-604; 487 NW2d 698 (1992). The
informant provided the name, address and phone number of defendant. The informant further
stated that he had purchased illegal narcotics from defendant for the past three years. Moreover,
under the supervision of police, the informant arranged to purchase a substantial quantity of
cocaine from defendant. Given the specificity of the these facts, along with the informant’s
long-standing relationship with defendant and the corroboration by independent police
investigation, we find that the informant’s personal knowledge and reliability were adequately
established to render the information sufficient to support probable cause. People v Stumpf, 196
Mich App 218, 223; 492 NW2d 795 (1992). Furthermore, the affidavit satisfied MCL
780.653(a) because it contained affirmative allegations from which the magistrate could
conclude that the informant spoke with personal knowledge.
Additionally, the affiant established a fair probability that evidence of criminal activity
would be found at defendant’s residence. Levine, supra at 185; Russo, supra at 604.
Specifically, the affiant made several statements from his own experience indicating that drug
traffickers often kept items associated with drugs in their homes. The affiant in this case had
3
The informant was originally arrested for selling narcotics. He later agreed to cooperate in the
police investigation and provided information regarding his source of supply to officers.
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twenty years’ experience as a Detroit Police Officer in the Narcotics Division, received
specialized training in drug law enforcement, and had personally made over one hundred
controlled purchases of narcotics. We find that the affiant’s extensive experience and training,
together with the informant’s statements and the controlled order implicating defendant in largescale drug activity, provided a sufficient basis to establish probable cause that drugs and
evidence of illegal drug trafficking would be found at defendant’s residence. See People v
Darwich, 226 Mich App 635, 638-639; 575 NW2d 44 (1997); People v Nunez, 242 Mich App
610, 614-615; 619 NW2d 550 (2000).
Viewing the affidavit in light of the totality of the circumstances and giving significant
deference to the magistrate’s finding of probable cause, we find a substantial basis for the
magistrate’s conclusion that a search would uncover evidence of illegal drug activity at
defendant’s residence. Whitfield, supra at 446. Thus, defense counsel’s failure to move to
suppress the evidence did not affect defendant’s substantial rights. See People v Mitchell, 454
Mich 145, 167; 560 NW2d 600 (1997).
Defendant further alleges that defense counsel was ineffective for failing to challenge the
legality of the search and seizure on the grounds that MCL 780.6544 was violated. Specifically,
defendant claims that the evidence taken from 19328 Telegraph should have been suppressed
because he was not provided a copy of the affidavit upon execution of the search warrant. We
disagree. We review questions of law concerning a suppression issue de novo. People v
Sobczak-Obetts, 463 Mich 687, 694; 625 NW2d 764 (2001) (Sobczak-Obetts II).5
We first note that MCL 780.654 does not explicitly impose a requirement that the search
warrant be left at the premises, but rather governs the content and form of a search warrant.
Sobczak-Obetts II, supra at 707-708. It is MCL 780.6556 that designates the procedural
4
MCL 780.654 provides:
A search warrant shall be directed to the sheriff or any peace officer, commanding
such officer to search the house, building or other location or place, where any
property or other thing for which he is required to search is believed to be
concealed. Each warrant shall designate and describe the house or building or
other location to be searched and the property or thing to be seized. The warrant
shall also state the grounds or the probable or reasonable cause for its issuance,
or in lieu thereof, a copy of the affidavit may be attached thereto. [Emphasis
added.]
5
We note that defendant’s argument on appeal relies heavily upon this Court’s opinion in People
v Sobczak-Obetts, 238 Mich App 495; 606 NW2d 658 (1999) (Sobczak-Obetts I). Particularly,
defendant claims that Sobczak-Obetts I, recognized the validity of People v Moten, 233 Mich
169; 206 NW 506 (1925), in cases where an affidavit containing probable cause for a search is
not attached to the warrant. However, the Michigan Supreme Court recently rejected that
argument in Sobczak-Obetts II.
6
MCL 780.655 provides, in pertinent part:
When an officer in the execution of a search warrant finds any property or seizes
any of the other things for which a search warrant is allowed by this act, the
(continued…)
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requirements for the execution of an otherwise “facially valid” search warrant and requires that
the affidavit be attached to the search warrant when it is executed.7 Sobczak-Obetts II, supra at
707-708. While defendant specifically alleges a violation of MCL 780.654, he fails to challenge
the content of the search warrant, i.e., he fails to argue that the search warrant did not have a
supporting affidavit attached when initially issued, or that the search warrant itself was invalid.
Sobczak-Obetts II, supra at 707, n 15. Therefore, defendant’s real argument concerns the
procedural requirements imposed under MCL 780.655.
This argument was raised in Sobczak-Obetts II. The Court in Sobczak-Obetts II held that
while the failure to provide defendant with a copy of the affidavit technically violates MCL
780.655, the exclusionary rule does not apply to such procedural violations. The Court indicated
that the requirements of MCL 780.655 are ministerial in nature and only arise after evidence is
seized pursuant to a valid search warrant. Sobczak-Obetts II, supra at 710. Moreover, in the
case at bar, the affidavit was not attached to the search warrant and provided to defendant upon
its execution due to the fact that the affidavit was sealed pursuant to the magistrate’s order.
Absent police misconduct, the deterrent purposes of the exclusionary rule are not advanced by
suppression of the evidence. Id. at 703, 711-712. Because suppression of the evidence was
unwarranted for this technical violation of MCL 780.655, defendant was not prejudiced by
defense counsel's failure to challenge the legality of the search. Mitchell, supra at 167.
Defendant finally claims that the trial court impermissibly considered defendant's race in
declining to depart from the mandatory minimum sentence. We disagree. Defendant failed to
preserve this issue for our review because he did not provide this Court with a copy of the
presentence investigation report. MCR 7.212(C)(7); People v Oswald, 208 Mich App 444, 446;
528 NW2d 782 (1995). Thus, this Court is precluded from review unless defendant shows plain
error affecting his substantial rights. Carines, supra at 774.
The trial court requires a substantial and compelling reason to depart from the mandatory
minimum sentences delineated by the Legislature. MCL 333.7401(4); MCL 769.34(3). Race is
an impermissible consideration in making a sentencing decision. People v Gjidoda, 140 Mich
App 294, 300-302; 364 NW2d 698 (1985); see also People v Coles, 417 Mich 523, 546; 339
NW2d 440 (1983), overruled in part on other grounds in People v Milbourn, 435 Mich 630; 461
NW2d 1 (1990).
(…continued)
officer, in the presence of the person from whose possession or premises the
property or thing was taken, if present, or in the presence of at least 1 other
person, shall make a complete and accurate tabulation of the property and things
so seized. The officer taking property or other things under the warrant shall
forthwith give to the person from whom or from whose premises the property was
taken a copy of the warrant and shall give to the person a copy of the tabulation
upon completion, or shall leave a copy of the warrant and tabulation at the place
from which the property or thing was taken. [Emphasis added.]
7
Although MCL 780.655 does not explicitly state that the affidavit supporting the search warrant
be provided when executed, “where an affidavit is attached to the warrant as permitted by [MCL
780.654] in lieu of a statement of probable cause in the warrant itself, the affidavit is part of the
‘warrant’ referred to in [MCL 780.655].” Sobczak-Obetts II, supra at 696, n 8.
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While the trial court made gratuitous comments at sentencing, the record does not
indicate that the sentencing decision was based upon defendant’s race. Rather, the trial court
considered several factors in concluding that there were no substantial and compelling reasons to
warrant departure from the mandatory minimum sentence. The trial court specifically noted the
lack of mitigating circumstances in the case to lessen defendant’s culpability and the fact that
defendant’s past criminal record although “minimal,” was not “good.” The trial court also
considered defendant’s previous involvement in drug activity, his young age, his lack of work
history, and his community service. Based on these factors, the court properly concluded that
departure from the mandatory minimum sentence was unwarranted. We find that defendant’s
sentence was based upon permissible considerations that were objectively verifiable and
approved of by this Court. People v Daniel, 462 Mich 1, 6-7; 609 NW2d 557 (2000). Therefore,
defendant has failed to show plain error and this Court is precluded from review of this issue.
Carines, supra at 774.
Affirmed.
/s/ Jessica R. Cooper
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
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