                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     August 17, 2017
               Plaintiff-Appellee,

v                                                                    No. 331126
                                                                     Branch Circuit Court
DANIEL LEE GRAY,                                                     LC No. 15-061538-FH

               Defendant-Appellant.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals as of right from his convictions following a jury trial of manufacturing
methamphetamine, MCL 333.7401(2)(b)(i), possession of methamphetamine, MCL
333.7403(2)(b)(i), operating a methamphetamine laboratory, MCL 333.7401c(2)(a), and
operating a laboratory involving hazardous waste, MCL 333.7401c(2)(c). Defendant was
sentenced as a habitual offender third offense, MCL 769.11, to serve concurrent prison terms of
51 to 480 months for manufacturing methamphetamine and operating a laboratory involving
hazardous waste, and 34 to 240 months for possession of methamphetamine and operating a
methamphetamine laboratory. We affirm.

                                       I. BACKGROUND

        Branch County Sheriff’s Office Deputy Steven Foster testified that on April 25, 2015, he
noticed defendant’s name appearing on records of suspicious pseudoephedrine purchases.
Deputy Foster explained that a confidential informant had indicated that defendant was likely
“involved” in some way with methamphetamines and was living in a trailer located in Sherwood.
The owner of the trailer, Terry Oesch, testified that, with his permission, defendant had been
living in the trailer for nine months. Defendant testified that he was sleeping in the trailer “now
and again” when he had nowhere else to stay during the cold winter months.

         Deputy Foster testified that he, another deputy sheriff, and two reserve officers went to
the trailer shortly before 5:00 p.m. on April 25th. Deputy Foster was in possession of a friend of
the court warrant for defendant. Defendant opened the trailer door in response to Deputy
Foster’s knocking. Deputy Foster told defendant why they were there, and asked if he could
look around in the trailer for any drug activity. Deputy Foster testified that defendant told him
that “he was not in control of the trailer or that he didn’t own the trailer.” Deputy Foster said to

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defendant, “you’re here, you’re in control of it, you live here.” Deputy Foster testified that
defendant told him it was not his trailer and that he could not give consent to a search.
Defendant told Deputy Foster that he would have to talk to Oesch. Deputy Foster then placed
defendant under arrest on the friend of the court warrant.

         Deputy Foster walked to Oesch’s trailer, which was at the front of the property. He told
Oesch about the narcotics investigation and stated that he “felt there was some illegal drug
activity possibly going on.” Deputy Foster testified that when he asked Oesch for consent to
search the trailer, defendant told Oesch two or three times, “All you have to do is say no, you can
tell them they can’t.” Deputy Foster stated that Oesch granted his consent. Deputy Foster
testified that he found coffee filters, foil with a white rock, baggies, a bottle of Coleman fuel, a
hydrogen chloride gas generator, and something appearing to be the start of a “one-pot”
methamphetamine production inside the trailer. Defendant denied that the paraphernalia found
in the trailer was his.

        A jury convicted defendant of the various methamphetamine-related charges. Defendant
filed a motion for a new trial, arguing he was denied the right to effective assistance of counsel
when defense counsel failed to file a motion to suppress evidence collected pursuant to the
search of the trailer. Relying on People v Gary, 150 Mich App 446; 387 NW2d 877 (1986), the
trial court concluded that a “motion for suppression would not have been fruitful due to the
common and or apparent authority of Mr. Oesch to consent to the search.” And therefore, the
trial court concluded, defendant was unable to establish a claim of ineffective assistance of
counsel. Defendant appealed as of right.

                                         II. ANALYSIS

       Defendant argues he was unconstitutionally deprived of the effective assistance of
counsel when trial counsel failed to move to suppress evidence of an illegal search and seizure.
We disagree.

The trial court permitted the evidence from the search to be introduced at trial and subsequently
held that a motion to suppress would have been futile. We review “trial court decisions
regarding the validity of consent for clear error” and review de novo trial court decisions
regarding the suppression of evidence. People v Goforth, 222 Mich App 306, 310; 564 NW2d
526 (1997). Under the Sixth Amendment to the United States Constitution, “[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his
defence.”1 The right to counsel plays a crucial role in the Sixth Amendment’s guarantee of a fair
trial by ensuring that the defendant has access to the “skill and knowledge” necessary to respond
to the charges against him. Strickland v Washington, 466 US 668, 685; 104 S Ct 2052; 80 L Ed



1
  See also Const 1963, art 1, § 20. Our Constitution’s guarantee of the right to counsel is
coextensive with that guaranteed by the federal Sixth Amendment. People v Pickens, 446 Mich
298, 302; 521 NW2d 797 (1994).


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2d 674 (1984). “The right to counsel also encompasses the right to the effective assistance of
counsel.” People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996).

       An appellate court is required to reverse a defendant’s conviction when defense “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 US at 687. A defendant requesting
reversal of an otherwise valid conviction bears the burden of proving “(1) the performance of his
counsel was below an objective standard of reasonableness under prevailing professional norms
and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the
outcome of the proceedings would have been different.” People v Sabin (On Second Remand),
242 Mich App 656, 659; 620 NW2d 19 (2000).

        Defendant claims that his counsel was ineffective for failing to object to the admission of
evidence found during the search of the trailer. According to defendant, the search violated his
Fourth Amendment rights and evidence obtained during the search was therefore inadmissible at
trial. People v. Cartwright, 454 Mich 550, 557-558; 563 NW2d 208 (1997). The evidence
obtained during the search formed the basis for defendant’s conviction, and therefore, whether
the search violated defendant’s Fourth Amendment rights is dispositive on his claim for relief.
Heft, 299 Mich App at 81.

        Among other protections, the Fourth Amendment of the United States Constitution and
Article 1, § 11 of the Michigan Constitution protect the individual against unreasonable
governmental searches. “[A] search for purposes of the Fourth Amendment occurs when the
government intrudes on an individual’s reasonable, or justifiable, expectation of privacy.”
People v Antwine, 293 Mich App 192, 195; 809 NW2d 439 (2011) (internal quotation marks and
citation omitted). The reasonable expectation of privacy extends to temporary dwelling places.
Stoner v California, 376 US 483, 490; 84 S Ct 889; 11 L Ed 2d 85 (1990).

        When addressing whether a search has violated a defendant’s Fourth Amendment rights,
the trial court must answer the essential question of whether the search was “reasonable.”
Goforth, 222 Mich App at 309. When a search is conducted pursuant to a validly-issued warrant,
the search is presumed reasonable. Id. The lack of a warrant, however, does not necessarily
render a search unreasonable. Among other situations not relevant to the matter at hand, an
individual may consent to a search of himself or his premises, thereby waiving his Fourth
Amendment protection, and allowing police to conduct the search without a warrant. Id.

        In situations involving temporary dwellings, or dwellings housing more than one
individual, the question becomes who has the authority to consent to a search of the premises.
Indeed, an abundance of literature has been prepared on this question from courts of this state, as
well as courts in the federal system. Generally, the relevant case law focuses on the
reasonableness of police conduct, rather than who holds the ownership rights to or actual
authority over the premises. See id. at 309-312.

        In determining whether an officer’s belief in the validity of consent was reasonable, the
trial court must look to the totality of the circumstances. Id. at 309. If searching officers
reasonably believe that the person consenting to the search has the power to so consent, the
search is generally valid, even when the person consenting does not have actual power to do so.

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Id. at 312. Officers, however, may not validly search the premises if another party with authority
over the premises is present and “expressly objects to the search.” People v Brown, 279 Mich
App 116, 131-132; 755 NW2d 664 (2008). When offered consent to search a premises, officers
are only required to make a “further inquiry” into the person’s power to consent to the search
when “the circumstances are such as to cause a reasonable person to question the consenting
party’s power or control over the premises or property.” Goforth, 222 Mich App at 312, citing
Gary, 150 Mich App at 452.

         Upon review of the record, we are not convinced that counsel erred in deciding not to
move to suppress the evidence. The record does suggest that defendant and Oesch treated the
trailer as defendant’s temporary residence. Defendant and Oesch both testified that defendant
lived in the trailer during cold weather, and officers conducted the search based upon
information that defendant was living in the trailer. Therefore, defendant may have enjoyed a
reasonable expectation of privacy in the trailer, and consequently may have had the right to
refuse to consent to a search of that premises. Stoner, 376 US at 490.

        We need not answer the question of whether defendant did, in fact, have the right to
refuse a warrantless search of the trailer because, when given the opportunity, he did not assert
the right. Instead, defendant steadfastly disclaimed any right to object to the search, claiming
instead that Oesch, as the owner of the trailer, held the sole right to consent or object to the
search. And, when Deputy Foster subsequently asked Oesch whether he would consent,
defendant had a second opportunity to object, but instead told Oesch that he—Oesch—could
refuse: “All you have to do is say no, you can tell them they can’t.” A reasonable officer in
Deputy Foster’s shoes would have understood this as defendant giving Oesch some unsolicited
legal advice about what Oesch could do, as opposed to an objection by defendant himself to the
requested search.

        In light of defendant’s express disclaimer of any authority over the trailer and express
assertion of Oesch’s authority, we find that Deputy Foster and the other officers reasonably
relied on Oesch’s consent to search the trailer. Given this, we conclude that the officers were not
required to make any further inquiry into the validity of Oesch’s consent and further conclude
that the search did not violate defendant’s Fourth Amendment rights.

        Therefore, had defense counsel moved to suppress the evidence obtained as a result of the
search, the motion would have been futile. A claim of ineffective assistance of counsel cannot
be predicated upon counsel’s failure to raise a futile motion, Sabin, 242 Mich App at 660.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Brock A. Swartzle




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