People v. Mayes

508 N.W.2d 161, 202 Mich. App. 181

• Court: Michigan Court of Appeals
• Decided: October 19, 1993
• Docket: Docket 112076
• Status: Published

Opinions

Per Curiam.

On May 2, 1988, defendant pleaded

guilty of carrying a concealed weapon, MCL 750.227; MSA 28.424, in exchange for the prosecutor’s agreement to recommend that he receive two years’ probation. As a factual basis for his plea, defendant stated that on March 28, 1988, he had put a gun inside the car that his sister had used to drive them to school. On June 13, 1988, defendant was sentenced to two years of probation.

Defendant then appealed as of right, arguing* that he was entitled to withdraw his guilty plea on the basis of ineffective assistance of counsel because his trial counsel had failed to raise two meritorious defenses based upon Fourth and Fifth Amendment grounds before he had entered his guilty plea. On June 22, 1989, this Court denied, as untimely, defendant’s motion to remand for the purpose of conducting an evidentiary hearing relative to his claim of ineffective assistance of counsel. However, on October 24, 1989, our Supreme Court issued an order reversing this Court’s order and remanding this case to the circuit court for a Ginther hearing.¹ 433 Mich 894 (1989).

On February 13, 1990, the circuit court held a Ginther hearing. After finding that defendant had not been denied effective assistance of counsel, the trial court denied defendant’s motion to withdraw his guilty plea. We affirm.

i

When reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, courts apply the test set forth in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984), in light of the guidance set forth in McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), and Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973). In re Oakland Co Prosecutor, 191 Mich App 113, 120-122; 477 NW2d 455 (1991). To establish ineffective assistance of counsel, the defendant must show that counsel’s performance was deficient and that, under an objective standard of reasonableness, counsel made an error so serious that counsel was not functioning as an attorney as guaranteed under the Sixth Amendment. Moreover, the defendant must overcome the presumption that the challenged action might be considered sound trial strategy. Additionally, the deficiency must be prejudicial to the defendant. People v Tommolino, 187 Mich App 14, 17; 466 NW2d 315 (1991).

To establish ineffective assistance of counsel in the context of a guilty plea, courts must determine whether the defendant tendered a plea voluntarily and understandingly. Oakland Prosecutor, supra, p 120. The question is not whether a court, in retrospect, would consider counsel’s advice to be right or wrong, but whether the advice was within the range of competence demanded of attorneys in criminal cases. Id., p 122.

ii

In support of his claim of ineffective assistance of counsel, defendant claims that his trial counsel failed to raise two valid constitutional defenses under the Fourth and Fifth Amendments to the charge of carrying a concealed weapon. First, defendant maintains that there was no probable cause to conduct a search without a warrant of the automobile in which the gun was found.

The Fourth Amendment is not a guarantee against all searches and seizures, only unreasonable ones. United States v Sharpe, 470 US 675, 682; 105 S Ct 1568; 84 L Ed 2d 605 (1985); People v Armendarez, 188 Mich App 61, 66; 468 NW2d 893 (1991). Generally, a search conducted without a warrant is unreasonable unless there exist both probable cause and a circumstance establishing an exception to the warrant requirement. People v Reed, 393 Mich 342, 362; 224 NW2d 867 (1975); People v Anthony, 120 Mich App 207, 210; 327 NW2d 441 (1982). When a search is conducted without a warrant, the state bears the burden of showing that the search was justified by a recognized exception to the warrant requirement. Reed, supra; People v Wade, 157 Mich App 481, 485; 403 NW2d 578 (1987).

Here, the prosecutor argues that the search of the automobile without a warrant was justified under the automobile exception, see United States v Ross, 456 US 798, 807-808; 102 S Ct 2157; 72 L Ed 2d 572 (1982); People v Anderson, 166 Mich App 455, 478-479; 421 NW2d 200 (1988), and also because of exigent circumstances, see Zurcher v Stanford Daily, 436 US 547, 556; 98 S Ct 1970; 56 L Ed 2d 525 (1978); People v Blasius, 435 Mich 573; 459 NW2d 906 (1990). However, before either of these exceptions may apply, there must first exist probable cause to believe that contraband or evidence of a crime may be found in the stated location. Ross, supra; Blasius, supra. It is defendant’s contention that he received ineffective assistance of counsel because counsel failed to argue that the circumstances did not establish probable cause to conduct the search of the automobile without a warrant.

Although we agree with defendant that an argument could be made that the search of the car was improper for lack of probable cause, we are not convinced that defendant would have prevailed on that issue. If the trial court had decided to uphold the validity of the search and admit the confiscated gun and defendant’s confession into evidence, the case against defendant would have been very strong indeed. Thus, weighing the relative risks of jail time versus the offer of probation, we are not convinced that the ultimate advice to plead guilty in return for two years’ probation constituted ineffective assistance of counsel. Oakland Prosecutor, supra, p 124.

We will first consider whether there was probable cause for the search of the car where the gun was found. In determining whether there is probable cause to believe that contraband or evidence is located in a specific place, the United States Supreme Court set forth in Illinois v Gates, 462 US 213, 238; 103 S Ct 2317; 76 L Ed 2d 527 (1983), a "totality of the circumstances” standard:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity” and "basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

The Court in Gates further remarked:

A sworn statement of an affiant that "he has cause to suspect and does believe” . . . will not do. . . . An affidavit must provide the magistrate with a substantial basis for determining the existence of probable cause .... An officer’s statement that "[affiants have received reliable information from a credible person and do believe” that heroin is stored in a home, is likewise inadequate. . . . [T]his is a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. . . . [H]is action cannot be a mere ratification of the bare conclusions of others. [Id. at 239. Emphasis added.]

In United States v Blackman, 897 F2d 309, 314 (CA 8, 1990), we note that the Eighth Circuit Court of Appeals held that the Gates "totality of circumstances” rationale was equally applicable in determining probable cause to conduct a search of an automobile without a warrant pursuant to the automobile exception.

Applying the Gates standard to the facts adduced at the evidentiary hearing in this case, we must agree with defendant that there is a colorable argument that there was no probable cause to conduct a search of the automobile without a warrant.

Here, the extent of the information known to the police officer at the time of the search was that an unidentified student informant had reported that defendant had brought a handgun to school and that the gun was inside a blue Buick or Oldsmobile. No facts were disclosed concerning the informant’s veracity, reliability, or basis of knowledge. While, under Gates, the absence of these factors is not fatal per se to the determination of probable cause, here the police officer simply was not furnished with any other objective facts from which to infer that a gun could be found in the automobile.

Contrary to the prosecutor’s contention, the existence of probable cause cannot be said to have been established on the basis that the police officer confirmed the reliability of the informant’s information through an independent investigation by ascertaining that a blue Buick or Oldsmobile in the school parking lot was registered to defendant’s mother.

In Alabama v White, 496 US 325, 331-332; 110 S Ct 2412; 110 L Ed 2d 301 (1990), the United States Supreme Court discussed whether an anonymous tip received by the police was sufficiently corroborated to provide the less demanding "reasonable suspicion” needed to justify an investigatory stop. There, the Court noted:

The Court’s opinion in. Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged .... Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer’s predictions imparted some degree of reliability to the other allegations made by the caller.

We think it also important that, as in Gates, "the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” . . . The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have "predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict future behavior, because it demonstrated inside information — a special familiarity with respondent’s affairs. [Emphasis added.]

In this case, the information provided by the informant did not contain a range of details, but rather noted that defendant allegedly had brought a gun to school and gave a general description of the automobile in which the gun could be found. The only information that was corroborated by the police officer was the informant’s description of the car, which represents the type of information determined in White to be of less significance, because it relates only to the condition existing at the time of the tip and fails to demonstrate "inside information” or "special familiarity” with defendant’s affairs.

We are also not convinced that probable cause was established because an assistant principal had furnished reliable information in the past. Although it is undisputed that the information provided by the assistant principal was obtained from a student informant, the assistant principal did not provide any objective facts bearing on the veracity, reliability, or basis of knowledge of the informant.

In view of the "totality of circumstances,” this case is not very different from the example mentioned in Gates, where an officer’s belief that he has received reliable information from a credible person that heroin is stored in a home is inadequate to establish probable cause. Accordingly, defense counsel could have pursued the argument that there was no probable cause to justify the search of the automobile without a warrant.

On the other hand, to forgo the plea agreement and pursue this constitutional issue would not have been without risks. It is unclear how the trial court would have decided the probable cause issue under the totality of the circumstances. Gates, supra. And, there is some authority for a different approach — an approach that balances the privacy interests of children with the need of school officials to maintain order — when such a search takes place in a school setting, as here. See the plurality decision in New Jersey v T L O, 469 US 325, 343; 105 S Ct 733; 83 L Ed 2d 720 (1985); see also State v Farrer, 57 Wash App 207; 787 P2d 935 (1990); Shamberg v State, 762 P2d 488 (Alaska App, 1988); People in interest of PEA, 754 P2d 382 (Colo, 1988). So, while defense counsel certainly could have attempted to argue that the search was improper, there is also much uncertainty whether defendant would have prevailed. Thus, a competent attorney might have decided to forgo this argument in favor of a plea agreement.

Defendant also claims that he was denied effective assistance of counsel in that defense counsel failed to raise the argument that defendant’s statements made during the custodial interrogation were inadmissible because he had not been given Miranda2 warnings. However, again, we. are not convinced that counsel was necessarily ineffective for failing to argue this issue, because the issue could have gone either way.

The right against self-incrimination is guaranteed by both the United States and Michigan Constitutions. US Const, Am V; Const 1963, art 1, § 17. The Michigan constitutional provision is construed no more liberally than the federal guarantee. People v Burhans, 166 Mich App 758, 761; 421 NW2d 285 (1988).

Statements of an accused made during custodial interrogation are inadmissible unless the accused voluntarily, knowingly, and intelligently waived his Fifth Amendment rights. Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). Warnings required under Miranda must be given when a person is in custody or otherwise deprived of freedom. of action in any significant manner. People v Hill, 429 Mich 382, 384; 415 NW2d 193 (1987). The totality of the circumstances must be examined to determine whether the defendant was in custody at the time of the interrogation. People v Williams, 171 Mich App 234, 237; 429 NW2d 649 (1988). The key question is whether the accused reasonably could have believed that he was not free to leave. Id.

Here, the undisputed facts adduced at the evidentiary hearing indicate that defendant, a senior, was summoned to the principal’s office at his school and was greeted by the police officer, who frisked him for weapons. Thereafter, without advising defendant of his Miranda rights, the officer questioned defendant regarding whether he had brought a gun to school. After the gun was produced, defendant admitted that it was his. Although, the police officer testified that defendant was free to leave at any time, there was no evidence that this message was conveyed to defendant. These facts could support a finding that defendant reasonably believed that he was not free to leave. Williams, supra, p 237.

On the other hand, no one ever told defendant that he was under arrest, and he was permitted to leave the principal’s office after being questioned. The detention was brief and occurred in a school principal’s office rather than at the police station or a squad car. Thus, the questioning was noncustodial, and the environment was not "police dominated.” See Berkemer v McCarty, 468 US 420; 104 S Ct 3138; 82 L Ed 2d 317 (1984).

Considering the totality of the circumstances, one could make an argument that defendant was effectively under arrest. However, we are not convinced that defense counsel was ineffective for failing to argue that defendant’s confession should have been suppressed, because it is unclear whether defendant would have prevailed on the issue.

hi

Given that defendant had two potential constitutional defenses to the charge of carrying a concealed weapon, the question is whether defendant was entitled to withdraw his guilty plea because it was not made voluntarily and understandingly. Oakland Prosecutor, supra.

At the Ginther hearing, Mr. Narragan, defendant’s trial counsel, testified that he met with defendant and his parents on the day of the preliminary examination. After reviewing the police report with them, he discussed the purpose of the preliminary exam and informed them of a proposed plea agreement.

According to both defendant and his mother, defense counsel instructed defendant to plead guilty because he had no defenses. Defense counsel disputed this contention, claiming that he "spoke to” defendant about "potential issues” with regard to both the search and the admissions. Further, defense counsel stated that the "total focus” of his discussions was that defendant avoid jail. However, defense counsel admitted that he never gave defendant a legal opinion regarding whether any defenses were valid or should be raised and that it was his own personal opinion "that the procurement of the weapon and the investigatory procedures of the township were proper.” Moreover, we note that at the evidentiary hearing, defense counsel acknowledged that he had characterized inaccurately the search of defendant’s parked car as a stop of a moving vehicle in a prior written response to the Attorney Grievance Commission. He also stated in his response to the grievance commission that there was more than one informant, even though this was not reflected in the police report.

It appears that defense counsel did not thoroughly discuss the potential merits of the constitutional issues with defendant and his family.³ Defense counsel apparently glossed over the constitutional issues, which appear to us to be complex and, troublesome. However, in light of the tenuous nature of the constitutional defenses that could have been argued, we are not convinced that defense counsel failed to provide defendant with advice within the range of competence demanded of attorneys in criminal cases so as to enable defendant to make an informed choice whether to plead guilty. Considering the risk of jail time and the strength of the evidence against defendant if admitted, we cannot say that defense counsel acted incompetently in ultimately advising defendant to take the plea bargain for probation. Oakland Prosecutor, supra, pp 124-125. Defendant received effective assistance of counsel.

Affirmed.

1 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2 Miranda v Arizona, 484 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

3 We note that even the trial court acknowledged that "there is no question but what (sic) there are Fourth and Fifth Amendment issues that undoubtedly any law school graduate, or perhaps, for that matter, any first-year law student might identify . . . and [trial counsel] maybe didn’t verbalize all those considerations to the defendant or his family.”