People v. Mayes, Docket No. 112076

• Citation: 508 N.W.2d 161,202 Mich.App. 181
• Decision Date: 19 October 1993
• Docket Number: Docket No. 112076
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilford Lemonte MAYES, Defendant-Appellant (After Remand).
• Court: Court of Appeal of Michigan — District of US

Page 161

508 N.W.2d 161

202 Mich.App. 181

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wilford Lemonte MAYES, Defendant-Appellant (After Remand).

Docket No. 112076.

Court of Appeals of Michigan.

Submitted Feb. 16, 1993, at Lansing.

Decided Oct. 19, 1993, at 9:15 a.m.

Released for Publication Dec. 3, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., James J. Gregart, Pros. Atty., and Dale S. Murney, Asst. Pros. Atty., for the People.

State Appellate Defender by Jack Van Coevering, for defendant.

Before CORRIGAN, P.J., and SHEPHERD and McDONALD, JJ.

AFTER REMAND

PER CURIAM.

On May 2, 1988, defendant pleaded guilty of carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 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, 446 N.W.2d 481 (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 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in light of the guidance set forth in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). In re Oakland Co. Prosecutor, 191 Mich.App. 113, 120-122, 477 N.W.2d 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 N.W.2d 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, 191 Mich.App. p. 120, 477 N.W.2d 455. 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, 477 N.W.2d 455.

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 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); People v. Armendarez, 188 Mich.App. 61, 66, 468 N.W.2d 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 N.W.2d 867 (1975); People v. Anthony, 120 Mich.App. 207, 210, 327 N.W.2d 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 N.W.2d 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 U.S. 798, 807-808, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); People v. Anderson, 166 Mich.App. 455, 478-479, 421 N.W.2d 200 (1988), and also because of exigent circumstances, see Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978); People v. Blasius, 435 Mich. 573, 459 N.W.2d 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, 191 Mich.App. p. 124, 477 N.W.2d 455.

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 U.S. 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 "[a]ffiants 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, 103 S.Ct. at 2317. Emphasis added.]

In United States v. Blackman, 897 F.2d 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, underGates, 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 U.S. 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...