People v. Nguyen
| Citation | 305 Mich.App. 740,854 N.W.2d 223 |
| Decision Date | 24 June 2014 |
| Docket Number | Docket No. 312319. |
| Parties | PEOPLE v. NGUYEN. |
| Court | Court of Appeal of Michigan (US) |
Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Marilyn J. Day, Assistant Prosecuting Attorney, for the people.
Arnone Law Offices, PLLC, Saint Clair Shores (by Joseph R. Arnone ), for defendant.
Before: O'CONNELL, P.J., and WILDER and METER, JJ.
Defendant appeals by leave granted1 his convictions, following a conditional plea of guilty, of possession with intent to deliver 50 to 449 grams of cocaine, MCL 333.7401(2)(a)(iii ), possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ), possession of ecstasy, MCL 333.7403(2)(b)(i ), manufacturing 5 to 44 kilograms of marijuana, MCL 333.7401(2)(d)(ii ), possession of a firearm by a felon, MCL 750.224f, possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii ), possession of less than 25 grams of oxycodone, MCL 333.7403(2)(a)(v ), fraudulent use of a public utility over $500, MCL 750.282(1) and (2), possession of dihydrocodeine, MCL 333.7403(2)(b)(ii ), possession of psilocin, MCL 333.7403(2)(c), and seven counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 11 to 30 years' imprisonment for the convictions of possession with intent to deliver 50 to 449 grams of cocaine, possession with intent to deliver less than 50 grams of cocaine, possession of Ecstasy, manufacturing 5 to 44 kilograms of marijuana, and possession of a firearm by a felon. In addition, he was sentenced to 11 to 15 years' imprisonment for the convictions of possession with intent to deliver marijuana, possession of less than 25 grams of oxycodone, fraudulent use of a public utility over $500, and possession of dihydrocodeine. Finally, he was sentenced to two days' imprisonment for his conviction of possession of psilocin and two years' imprisonment for each of the seven felony-firearm convictions. We affirm.
This appeal arises from a traffic stop of defendant's vehicle on September 7, 2010, in the city of Troy. The record establishes that a confidential informant (CI), who was cooperating with United States Immigration and Customs Enforcement (ICE), had agreed to purchase a large quantity of cocaine from defendant in the city of Troy. With prior knowledge of the CI's agreement, the Troy police stopped defendant's vehicle, asked defendant to get out of the vehicle, and thereafter performed a pat-down search for weapons and a consensual vehicle search. Officer Neil Piltz searched the driver's compartment, underneath the seats, the top of the seats, and behind the driver's seat. Officer Piltz then talked to defendant while another officer conducted a search using a canine. No drugs were located in the vehicle during this initial search.
Throughout his conversation with Officer Piltz, defendant had his hands in his pants pockets. Officer Piltz testified at the preliminary examination that when defendant removed his hands from his pockets, he noticed a bulge in defendant's right pants pocket— bigger than a golf ball—where it had been smooth during the initial pat-down. Officer Piltz felt the bulge and asked defendant what it was while he began to check inside defendant's pocket. Defendant then put his hands together in front of his body and told the officer that he should arrest him. Officer Piltz asked defendant why, to which defendant responded, “for what you're going to find in my pocket.” Officer Piltz pulled out a felt bag and before he could look inside, defendant stated that it contained cocaine. Officer Piltz then arrested defendant.
Approximately 20 minutes lapsed from the time defendant was pulled over to the time Officer Piltz found the cocaine and arrested defendant. Later and contemporaneous with his arrest, defendant waived his Miranda2 rights and admitted operating an illegal marijuana growing operation in his home and possessing firearms and other illicit controlled substances. The Troy police relied on defendant's statements and the cocaine found at the time of the arrest to obtain a search warrant for his home. When the search warrant was executed at defendant's home, various illegal drugs, firearms, and other contraband were recovered.
Defendant was charged with 17 counts in total. Count I (possession with intent to deliver 50 to 449 grams of cocaine) was based on the recovery of cocaine from defendant's pocket at the time of the arrest, and Counts II through XVII related to the drugs, weapons, and contraband found in his home. The district court began a preliminary examination and heard testimony and argument on four separate hearing dates, May 10, 2011, July 12, 2011, August 16, 2011, and October 11, 2011. At the May 10, 2011 hearing, Officer Piltz and Sergeant Scott Salter of the Troy Police Department testified regarding the events that occurred leading up to the arrest. After both officers testified, defense counsel moved for the suppression of the evidence of the cocaine found in defendant's pocket on the basis that the search was illegal. The district court ruled that the statements made by defendant to Officer Piltz, that he had cocaine in his pocket, were inadmissible because the officer violated defendant's Miranda rights. The district court also ruled that the police lacked probable cause for the arrest, citing a lack of testimony regarding what they knew about the CI and whether the information was reliable. In connection with its probable cause ruling, the district court stated: “It seemed quite obvious to me from the tape that both officers believed that they had come up empty and that there was nothing to arrest the defendant for until he sees the bulge, goes in and takes it.” Following this ruling, in response to the prosecution's request, the district court set aside its finding that the police had lacked probable cause and permitted the prosecution to reopen the proofs in order to present testimony from ICE agents regarding whether the police had probable cause for the arrest.
At the July 12, 2011 hearing, ICE agents Brian Helmerson and Julia Harris testified regarding the information they received from the CI and the surveillance conducted on defendant. Agent Helmerson testified that the CI had been used previously as a CI in three ICE investigations. On the prior occasions, the CI had identified individuals involved in narcotics trafficking and then arranged meetings to conduct controlled-substance transactions. According to Agent Helmerson, the CI's information resulted in the seizure of controlled substances, seven arrests, and five convictions.
Two weeks before defendant's arrest, Agent Helmerson contacted Sergeant Salter at the Troy Police Department and informed him of the CI's agreement to buy cocaine from defendant in the city of Troy.
Agent Helmerson informed Sergeant Salter that the information was from a reliable and credible source.
Throughout the day leading up to defendant's arrest, ICE agents heard the CI talking on the phone with defendant, who allegedly told the CI he was going to retrieve the cocaine after work and deliver it to the CI in the city of Troy. A surveillance team then saw defendant leave his work location and approach a house in a southwest Detroit location considered to be in a high-intensity drug-trafficking area. After defendant had arrived in southwestern Detroit, the CI received a communication from defendant indicating that he was in possession of the cocaine. Defendant then drove toward the specific Troy location at which defendant and the CI had agreed to meet.
When defendant was seen driving toward the city of Troy, Agent Helmerson contacted Sergeant Salter to turn over surveillance of defendant to the Troy Police Department. Agent Helmerson told Sergeant Salter the specific time that defendant's vehicle would enter the city and provided a photograph of defendant. Sergeant Salter observed a vehicle matching the description and displaying the license plate number of defendant's vehicle, which was moving in the direction that Sergeant Salter had been told defendant's vehicle would be traveling, and relayed this information to Officer Piltz, who also saw defendant's vehicle traveling in that specific direction. Officer Piltz then conducted the traffic stop.3
At the conclusion of the July 12, 2011 hearing defendant filed a motion to suppress evidence of the cocaine found in his pocket, claiming it was the fruit of an unlawful search. Defendant also moved to suppress his statements made to the police after the arrest as fruits of an unlawful arrest. At the August 16, 2011 hearing on the motion to suppress, the district court found:
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