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People v. Mahdi

Court of Appeals of Michigan

October 11, 2016

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
GARY TERRAIL MAHDI, Defendant-Appellant.

         Oakland Circuit Court LC No. 2014-252234-FH

          Before: Saad, P.J., and Jansen and M. J. Kelly, JJ.

          PER CURIAM.

         Defendant appeals as of right his jury trial convictions of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), and one count of possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to concurrent sentences of 76 months to 40 years' imprisonment for the intent to deliver a controlled substance convictions and 76 months to 15 years' imprisonment for the intent to deliver marijuana conviction. We reverse and remand for a new trial.

         I. FACTS AND PROCEDURAL HISTORY

         On October 2, 2014, at approximately 10:00 a.m., the Oakland County Sheriff's Office executed a warrant at 45 Lantern Lane, an apartment in the North Hill Farms apartment complex in Pontiac, Michigan. Detective Daniel Main presented the affidavit for issuance of a search warrant before the warrant was issued. He explained at trial that on two occasions an informant entered 45 Lantern Lane, purchased drugs inside, left the apartment, and turned over the drugs to police. Detective Main testified that defendant was the subject of the investigation and was observed entering and exiting the 45 Lantern Lane location on multiple occasions. However, the affidavit did not name a particular individual. A search warrant for 45 Lantern Lane was issued on the basis of the affidavit.

         Before executing the warrant, Detective Main conducted surveillance of the area. He observed defendant standing behind a Buick Regal in the parking lot of the apartment complex. Defendant moved around items in the trunk of the vehicle, closed the trunk, and walked into 44 Cherry Hill, another apartment in the complex, carrying a small bag in his hand. Detective Main did not see defendant inside of the vehicle. It was later determined that the vehicle was not registered to defendant.

         Following this surveillance, five officers executed the search warrant at 45 Lantern Lane. The two people in the house were secured. Detectives Main and Jason Teelander then walked to the Buick in the parking lot and looked inside. They spotted a small bag of marijuana in or near the center console. The two detectives, along with a uniformed officer, went to 44 Cherry Hill and knocked on the door. Defendant answered and stepped outside of the apartment. He was arrested for possession of marijuana and placed in the back of a police car. The detectives then spoke to defendant's mother, Emma Howard. She told them that 44 Cherry Hill was her apartment. Detective Main explained that the officers were investigating her son for drug trafficking and wanted "to make sure that he didn't have any drugs hidden in her house that she didn't know about." He asked her "if she [would] mind if we looked around and made sure there was nothing there." Howard gave them permission to conduct the search.

         The detectives did not find contraband or drugs in the apartment at 44 Cherry Hill. Detective Teelander searched the bathroom. He saw men's clothing piled on the toilet seat and a cell phone next to the clothing. There were shoes on the floor, and a travel bag was opened. Detective Teelander seized the cell phone. The officers also confiscated a wallet and a set of keys from the couch in the living room. The wallet contained a receipt for AutoZone, various cards and receipts with defendant's name on them, and $971 in cash. The keychain included keys that could unlock 44 Cherry Hill, 45 Lantern Lane, and the Buick in the parking lot. The keychain also contained an AutoZone rewards card. Detective Main used a key on the keychain to unlock the Buick and retrieve the marijuana inside. He also found paperwork with defendant's name and the address at 44 Cherry Hill, and a phone box that matched the phone taken from Howard's apartment. In the trunk, Detective Main found men's clothing and a PlayStation 4.

         The detectives returned to 45 Lantern Lane to continue searching the apartment. While searching the kitchen, Detective Main found a couple of boxes of sandwich baggies, a pair of latex gloves, and a pair of scissors. He testified at trial that the items were significant because sandwich baggies are often used to package smaller amounts of drugs for sale, latex gloves prevent a person from absorbing drugs into his or her skin during packaging, and scissors could be used to cut off portions of the baggies. In the kitchen garbage can, Detective Main located sandwich baggies with the corners missing, a syringe, and a receipt stub without a name. He explained at trial that one way of packaging drugs is to place the drug into one corner of a baggie, knot the remaining portion just above the drug, and separate the main part of the baggie from the portion holding the drug. In the living room, Detective Main found scales and a tin with eight individual bags of marijuana containing approximately 1 gram each. There were also "rolling papers" inside the residence.

         In the dining area, Detective Main found a reusable Sam's Club bag on one of the chairs. Inside were CD's and PlayStation games, as well as a PlayStation 3. The bag also contained two bags of marijuana, a digital scale, and a nylon case with individually packaged bags of heroin and one bag of cocaine. The two bags of marijuana were approximately 6 grams and nearly 11 grams in weight. The bags of heroin ranged in weight. The powdered cocaine found in the nylon container weighed approximately 1.6 grams. There was also a small amount of crack cocaine in the bottom of the Sam's Club bag. Detective Main testified that the heroin and cocaine were worth about $800 to $900. He also testified that digital scales are often used in drug trafficking to weigh drugs for both sale and purchase.

         There were two receipts in the Sam's Club bag. A September 7, 2014 receipt for the Comfort Suites in Auburn Hills listed defendant's name and the address at 44 Cherry Hill. The other receipt, dated August 22, 2014, was for the McGuire's Motor Inn on Telegraph Road, and listed defendant's name and the address at "41 Cherry Hill." The bag also contained an AutoZone rewards card with 16 numbers under the bar code, which matched the numbers on the rewards card attached to the keychain found at 44 Cherry Hill. The AutoZone receipt found in the wallet listed four numbers that were the same as the last four numbers on the AutoZone rewards card.

         While Detective Main was writing his police report, he kept the cell phone from Howard's apartment. The phone rang several times and received some text messages. Some of the texts mentioned "G" or "Gary, " and there were numerous photographs of defendant in the phone. Detective Main responded to some of the text messages. He recounted several text message exchanges at trial. At 6:02 p.m., an incoming message stated, "[H]ave those 4 15 milligram oxycodones, trade you for a 25, they go for 9 to 12 dollars, you said you would today, pretty please." At 6:21 p.m., another message stated, "[N]eed 20, have cash, call me. ASAP." Detective Main asked, "[B]oy or girl?" The response was "girl, how long and will you do the pill deal for me, it's for that long haired beauty you like." Detective Main responded that he was "waiting on some more." Detective Main testified that boy is "street slang" for heroin, and girl is "street slang" for cocaine.

         At 6:29 p.m., an incoming message stated, "[W]hat up, this Ton, I need some of that hookup." Detective Main asked, "[B]oy?" The incoming text answered, "[N]o, that hard." Detective Main responded, "[M]y bad, I'm waiting on some." The next text message stated, "[H]it me up as soon as you get it cause I'm missing out on a lot right now." Detective Main explained that "hard" is a street term for crack cocaine, and "soft" refers to powder cocaine. At 9:30 p.m., there was an incoming message stating, "[Y]ou around?" Detective Main responded via text message, "[Y]ou need something, " and the answer was "100." Detective Main testified that this likely meant $100 worth of heroin. At 9:40 p.m., there was an incoming message asking "G" if he was at "the farms." When Detective Main responded, "[Y]eah, what's up, " the person stated, "I need a 4 piece." Detective Main asked, "[B]oy or girl[?]" The answer was "girl." He explained at trial that "[t]he farms is what people in Pontiac call North Hill Farms, " and "4 piece" means $40 worth of drugs.

         Detective Main read into the record at trial relevant text messages from dates before the search and arrest. An incoming message from September 29, 2014, stated, "Liz want [sic] to know can you take her 2 GMS, " which is an abbreviation for grams. The outgoing response was "regs, " to which there was a reply of "no." The next outgoing message stated, "[T]hat's all I got is regs." Detective Main explained at trial that "regs" is a common street term for marijuana, particularly "lower level cheap marijuana." Detective Main testified that there were text messages on the cell phone from September 26, 2014, regarding setting up a meeting at McGuire's Motor Inn. Some additional text messages referred to being in North Hill Farms.

         Before trial, defense counsel filed a motion to suppress the wallet, keys, and cell phone found at 44 Cherry Hill. Defense counsel argued that the items found at that location were not related to the possession or sale of drugs, were not connected to the Lantern Lane address, and were outside the scope of the search defendant's mother permitted. The prosecution asserted that defendant's motion was untimely, the items seized from 44 Cherry Hill were taken legally through a consent search, and the items were in plain view and known to be possibly incriminating by officers familiar with drug trafficking. At the motion hearing, the trial court denied defendant's motion as untimely and determined that denial was appropriate on the merits as well. The trial court concluded that the consent exception to the warrant requirement applied in this circumstance. Evidence stemming from the search of the wallet, keys, and cell phone was admitted into evidence at trial. Defendant was convicted and sentenced as stated, and this appeal followed.

         II. FOURTH AMENDMENT SEARCH AND SEIZURE

         The main issue presented in this case is whether the seizure of the cell phone, wallet, and keys from 44 Cherry Hill, as well as the subsequent search of the cell phone, violated defendant's Fourth Amendment protection against unreasonable searches and seizures. Defendant contends that the seizure of the cell phone, wallet, and keys was unreasonable because there was no warrant permitting the police to seize the items, and no exception to the warrant requirement permitted the police officers to seize the items. We agree.

         "We review de novo a trial court's ultimate decision on a motion to suppress on the basis of an alleged constitutional violation." People v Gingrich, 307 Mich.App. 656, 661; 862 N.W.2d 432 (2014). We review for clear error any findings of fact made during the suppression hearing. Id. " 'A finding of fact is clearly erroneous if, after a review of the entire record, an appellate court is left with a definite and firm conviction that a mistake has been made.' " Id. (citation omitted). We review de novo the issue whether the Fourth Amendment was violated and the issue whether an exclusionary rule applies. People v Corr, 287 Mich.App. 499, 506; 788 N.W.2d 860 (2010).[1]

         The United States and Michigan Constitutions protect against unreasonable searches and seizures. U.S. Const, Am IV; Const 1963, art 1, § 11. The Fourth Amendment to the United States Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The corresponding provision of the Michigan Constitution provides, in part, "The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures." Const 1963, art 1, § 11. Whether a search or a seizure is lawful depends on whether it is reasonable. People v Nguyen, 305 Mich.App. 740, 751; 854 N.W.2d 223 (2014). Thus, " 'a search for purposes of ...


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