People of Michigan v. Thomas James Cavender ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 10, 2018
Plaintiff-Appellee,
v No. 336610
St. Clair Circuit Court
THOMAS JAMES CAVENDER, LC No. 16-001668-FH
Defendant-Appellant.
Before: BORRELLO, P.J., and SHAPIRO and TUKEL, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of one count of possession of less
than 25 grams of a controlled substance, MCL 333.7403(2)(a)(v). The trial court sentenced
defendant, as a fourth-offense habitual offender, MCL 769.12, to 12 months in jail. We affirm.
On July 1, 2015, police executed a search warrant at defendant’s house, located at 1319
South River Pointe Lane in the city of St. Clair. The search was part of a multi-jurisdictional
investigation into a drug trafficking organization that was alleged to be operating in the tri-
county area. A black cell phone and $3,000 in currency (three bundles of $1,000) were found in
defendant’s kitchen. The police also searched defendant’s car, a black Chrysler 200, parked at
the end of the driveway of the residence. The police recovered from the center console of
defendant’s car a clear plastic baggy containing a white powdery substance, two medication
bottles, and another cell phone. The baggy was later determined to contain 0.61 grams of
cocaine. The cell phones were found to contain messages using “street terminology” that
indicated involvement in drug trafficking.
Defendant was charged with one count of possession of less than 25 grams of cocaine,
second or subsequent offense, MCL 333.7403(2)(a)(v); MCL 333.7413(2). He filed a motion to
suppress evidence seized from his home on the bases that the allegations in the affidavit did not
support a finding of probable cause to search his house and that the allegations in the affidavit
were stale, among other arguments. The trial court denied the motion, ruling that the allegations
in the affidavit, which connected defendant to the suspected head of an ongoing drug trafficking
organization and set forth facts demonstrating that officers had observed defendant engaging in
conduct consistent with or indicative of drug trafficking, were sufficient to support a finding of
probable cause. The court further concluded that the allegations were not stale given the ongoing
nature of the drug-trafficking operation at issue.
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A jury found defendant guilty, as charged, of one count of possession of less than 25
grams of cocaine. The prosecutor opted to dismiss the second or subsequent offense portion of
the possession charge, MCL 333.7413(2), in favor of defendant being sentenced as a fourth-
offense habitual offender, MCL 769.12. Thereafter, defendant was sentenced, as a fourth-
offense habitual offender, to one year in jail. Defendant’s appeal as of right followed.
Defendant first contends that the trial court erred by denying his motion to suppress the
evidence seized from his residence. Defendant claims that the allegations in the search warrant
affidavit were insufficient to support a finding of probable cause to search his residence. We
disagree.
This Court reviews de novo a trial court’s ultimate decision on a motion to suppress
evidence. People v Mullen, 282 Mich App 14, 21; 762 NW2d 170 (2008). A trial court’s
determination regarding the sufficiency of allegations in a search warrant is reviewed to
determine “whether a reasonably cautious person could have concluded that there was a
substantial basis for the finding of probable cause. To find a substantial basis, we must ensure
that there is a fair probability that contraband or evidence of a crime will be found in a particular
place.” Id. at 21-22 (quotation marks and citations omitted).
Based on our review of the allegations in the affidavit, we conclude that there was a
substantial basis for a finding of probable cause. The affidavit by Detective Brian Burwell, a
narcotics officer with fourteen years of experience and extensive training, noted that defendant
had a prior felony drug conviction and that defendant frequented a building on Nine Mile Road
connected to Anthony Garrisi, the suspected head of a drug trafficking organization. On one
occasion, an officer observed defendant meet with Garrisi at the Nine Mile Road location before
travelling to two homes, where he stayed for short periods of time before returning to the Nine
Mile Road building. On another occasion, an officer observed defendant drive from the Nine
Mile Road location to a business in Clinton Township, where defendant never entered the
business but instead briefly met with an individual who approached his car in the alley. As
detailed in the affidavit,
A short period of time later, a subject exits Alley 59 and approaches the passenger
side of Cavender’s vehicle. That subject then walks away from Cavender’s
vehicle and towards other parked vehicles in the parking lot. The subject then
returns to the driver’s side of Cavender’s vehicle and after a brief meeting[,]
Cavender then pulls away and exits the parking lot. Affiant identified this type of
behavior, through training and experience, as indicative to narcotic trafficking.
In addition, when defendant drove away from the business, he drove using a “cleaning”
technique, known to be used by drug traffickers.1 After detailing his extensive training and
1
The affiant defined “cleaning” as “a general term used when suspects use indirect routes,
varying speeds, stopping and observing traffic in the area and actively trying to pick out law
enforcement surveillance crews utilizing these and other counter surveillance techniques.”
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experience with respect to drug trafficking investigations, the affiant concluded that defendant’s
behaviors were consistent with drug trafficking.
Where defendant’s behavior were observed by the police and an experienced and trained
officer believed that defendant’s behavior was in some instances “indicative to narcotic
trafficking,” and in other instances “is synonymous with that of narcotic traffickers,” we cannot
conclude that the search lacked an adequate basis. The affidavit also stated that, based on the
affiant’s experience and training, individuals involved in illegally trafficking controlled
substances often store drugs and associated items, such as ledgers and other records regarding
their illegal activities, in their homes. Because the allegations thus were sufficient to cause a
person of reasonable caution to be justified in concluding that defendant was involved in drug
trafficking and that evidence of his criminal conduct would be found in his home, we find no
error in the trial court’s conclusion that the allegations were sufficient to demonstrate probable
cause for the search.
Defendant next argues that the allegations were insufficient to establish probable cause to
search his home because there were no allegations that any criminal activity was taking place at
defendant’s home. “[I]n order for probable cause to exist to search a particular place, a sufficient
nexus must be shown between the place to be searched and the suspected evidence of criminal
activity.” People v Nunez, 242 Mich App 610, 620; 619 NW2d 550 (2000). While defendant
correctly argues that the affidavit did not contain allegations of criminal conduct occurring at
defendant’s home, as we have noted, the affiant alleged, based on his education, training, and
experience, that individuals involved in drug trafficking often keep drugs, records of their
transactions, and other evidence at their residences. Detective Burwell’s allegation establishes
the required nexus between defendant’s home and the suspected evidence of criminal activity.
Defendant next argues that the allegations were insufficient to support a finding of
probable cause because there was no indication in the affidavit that the anonymous confidential
informant who supplied information to the affiant had seen defendant possess or traffic drugs at
his home. Again, while there was no allegation in the affidavit that drugs had been seen at
defendant’s home, Detective Burwell alleged that, based on his education, training, and
experience, individuals involved in drug trafficking often keep contraband and records of their
transactions and other evidence at their residences. Thus, the police sought to search defendant’s
home not on the basis of information from an anonymous confidential informant, but on the basis
of Detective Burwell’s allegation that evidence of drug trafficking likely would be found there.
Given the facts set forth in the affidavit, those allegations were sufficient to establish probable
cause.
Defendant next argues that the allegations were insufficient to establish probable cause
where the information in the search warrant was stale. Specifically, defendant argues that the
information was stale because the last surveillance of defendant was on May 15, 2016, and the
affidavit was signed on June 30, 2016.
“[I]t cannot be assumed that evidence of a crime will remain indefinitely in a given
place.” People v Russo, 439 Mich 584, 605; 487 NW2d 698 (1992). Thus, staleness is a factor
to consider when determining whether there was probable cause for a search. Id. However, the
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age of information, alone, is not determinative of whether information is stale. People v Stumpf,
196 Mich App 218, 226; 492 NW2d 795 (1992).
Time as a factor in the determination of probable cause to search is to be weighed
and balanced in light of other variables in the equation, such as 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 the nature
of the property sought, that is, whether it is likely to be promptly disposed of or
retained by the person committing the offense. [Russo, 439 Mich at 605-606.]
Here, the search warrant sought items including records, receipts, ledgers, customer lists,
computer disks, proofs of residency, correspondence, weapons, telephones, and photographs.
The affiant indicated that, based on his training and experience, drug traffickers often maintain
such items in their residences. The affiant further stated that it is likely that an individual would
retain these types of items rather than promptly dispose of them, a conclusion which, at least as
to the personal items such as proof of residency, correspondence, and photographs, certainly is
true. See United States v McManus, 719 F2d 1395, 1401 (6 CA, 1983) (“[T]hese items
(passports, identification papers and bank records) are the sort which would normally be kept at
one’s personal residence. They are also the sort which could be reasonably expected to be kept
there for long periods of time.”) (citation and some emphasis omitted).2 In addition, the affidavit
set forth that the search warrant was part of an investigation into an ongoing drug trafficking
organization, rather than a one-time drug deal. When, as here, “an affidavit recites activity
indicating protracted or continuous conduct, time is of less significance” to the staleness inquiry.
United States v Henson, 848 F2d 1374, 1382 (6 CA, 1988). Given the type of items sought and
the ongoing nature of the drug trafficking operation being investigated, defendant has not shown
that the trial court erred by concluding that the information in the affidavit was not stale.
Moreover, assuming the warrant was technically deficient, we would be compelled to
affirm under the principles enunciated in People v Goldston, 470 Mich 523; 682 NW2d 479
(2004). Under Goldston, reliance on a warrant is reasonable, such that suppression is not an
available remedy, even if the warrant is later invalidated for lack of probable cause, except in
three circumstances: (1) if the issuing magistrate or judge is misled by information in the
affidavit that the affiant either knew was false or would have known was false except for his
reckless disregard of the truth; (2) where the issuing judge or magistrate wholly abandons his
judicial role; or (3) where an officer relies on a “bare bones” affidavit so lacking in indicia of
probable cause as to render official belief in its existence entirely unreasonable. Id. at 531, citing
United States v Leon, 468 US 897, 915, 923; 104 S Ct 3405; 82 L Ed 2d 677 (1984); Goldston,
470 Mich at 531.
Defendant argues that the third prong is implicated—that is, the affidavit was so lacking
in indicia of probable cause that it was unreasonable for the searching officers to rely on it.
2
Although not binding on us, the decisions of lower federal courts are persuasive authority.
Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
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However, for the reasons stated previously, even if we were to find that the affidavit failed to
establish probable cause, it nevertheless was not so “bare bones” in its details that official belief
in its validity would have been unreasonable. As such, there is no basis for suppressing the fruits
of the search.
Finally, defendant contends that he was denied the effective assistance of counsel
because defense counsel failed to file an interlocutory appeal from the trial court’s order denying
his motion to suppress. We disagree.
Because he did not move for a new trial or an evidentiary hearing on the ground that he
was denied the effective assistance of counsel, defendant has failed to preserve this issue for
review. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002). Therefore, this
Court’s review is limited to mistakes apparent from the record. People v Davis, 250 Mich App
357, 368; 649 NW2d 94 (2002).
To demonstrate that defense counsel was ineffective for failing to file an interlocutory
appeal from the trial court’s denial of defendant’s motion to suppress, defendant must show (1)
that defense counsel’s failure to file an interlocutory appeal fell below an objective standard of
reasonableness, and (2) that, but for defense counsel’s deficient performance, there is a
reasonable probability that the outcome of the proceedings would have been different. See
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
In light of our conclusion in this appeal that the trial court did not err by denying
defendant’s motion to suppress, defendant has not shown that an interlocutory appeal would have
yielded any different results, as the analysis in that interlocutory appeal would have been the
same as provided in this appeal. Defense counsel was not ineffective for failing to file an appeal
from a meritless position. People v Snider, 239 Mich App 393, 425; 608 NW2d 50 (2000).
Consequently, as a matter of law, defendant cannot establish any prejudice from defense
counsel’s decision not to file an interlocutory appeal, and his claim of ineffective assistance of
counsel necessarily fails.
Affirmed.
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
/s/ Jonathan Tukel
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