                         STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 14, 2016
              Plaintiff-Appellee,

v                                                                  No. 322557
                                                                   Saginaw Circuit Court
LARRY WEST,                                                        LC No. 13-038585-FH

              Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Defendant was convicted by a jury of two counts of possession of less than 25 grams of a
controlled substance, MCL 333.7403(2)(a)(v), one count of felon in possession of a firearm,
MCL 750.224f, and two counts of possessing or carrying a firearm when committing a felony
(felony-firearm), MCL 750.227b, and sentenced to 36 months’ probation for the controlled
substance and felon in possession of a firearm convictions, and to concurrent prison terms of 24
months for each of the felony-firearm convictions. Defendant filed this appeal by right. We
affirm.

        The charges against defendant arise from a September 19, 2012 search of the home where
he was living. Detectives from the Bay Area Narcotics Enforcement Team (BAYANET)
searched the house pursuant to a warrant obtained after detectives used a confidential informant
(hereafter “CI”) to make a controlled purchase of drugs from defendant. Paragraph 3(B) of the
affidavit used to obtain the warrant describes the transaction as follows:

               Within the last 48 hours, a confidential informant (hereafter “CI”), made a
       controlled purchase of a quantity of cocaine from a male within the above
       described residence. The CI was first searched for the presence of controlled
       substances and US currency with none being found. The CI was provided with a
       quantity of pre-recorded drug buy funds. The CI was seen to enter the above-
       described residence, remain for a short period of time and then exit. The CI then
       met with investigators at a pre-established location. The CI turned over suspected
       crack cocaine to officers which field-tested positive for the presence of cocaine.
       The CI identified the seller as a black male known to the CI as “LARRY WEST”.
       The CI has also told me that he/she was told that he/she could return for more.


                                               -1-
        Prior to trial, defendant moved for an evidentiary hearing to examine the undisclosed CI,
contending that the statement in the affidavit that the CI had purchased cocaine from a male
within the described residence constituted “a deliberate falsehood or reckless disregard for the
truth.” He submitted an affidavit stating that he had reviewed his counsel’s motion for an
evidentiary hearing, and that the offer of proof set forth in the motion was true and accurate. The
offer of proof set forth in the motion was that defendant had not sold drugs from the residence
within 48 hours of September 19, 2012. The trial court found defendant’s offer of proof neither
substantial nor compelling, and concluded that it was simply his assertion that he did not sell
drugs during the period at issue. Observing that the affidavit supporting the search warrant
described what occurred with specificity and contained indicia of the CI’s reliability, the trial
court denied defendant’s motion.

        At trial, Saginaw Police Department Detective Lamar Kashat, serving with BAYANET
as a narcotics detective, testified that he secured and, along with six other detectives, executed a
search warrant for the residence. Detective Kashat testified that the officers knocked and
announced themselves, used a “hook” to pry open the security door to the house, and a battering
ram to gain entry into the house. Once in, they found defendant sitting in a lawn chair,
“hovering over” a blue Nike shoe that contained a loaded .380 Taurus semi-automatic pistol that
was registered to defendant’s wife. Next to defendant’s chair was a table with, among other
things, cell phones, a pager, a laptop, and an ashtray. In the ashtray was a second Taurus
magazine; a box of nine-millimeter ammunition was later found in a kitchen cabinet. Detective
Kashat testified that defendant was handcuffed and read his rights and that defendant invoked his
right to remain silent.

        Detective Kashat testified that cocaine was found throughout the house, but primarily in
the kitchen in cabinets, the microwave, and on top of the refrigerator. Detective Kashat said that
he did not find a large quantity of cocaine. Michigan State Police (MSP) Detective Sergeant
James Bush and one of the officers executing the search warrant testified that the small amount
of cocaine found would indicate possession, but not intent to deliver. Small rocks of suspected
cocaine were field tested by MSP Detective Lieutenant Matt Rice and discovered to be cocaine.
Detective Rice’s initial results were confirmed by the MSP crime lab.

        Detective Kashat testified that officers also found a digital scale of the type used to weigh
drugs for distribution, and that the scale contained drug residue. In addition, the officers found
several lottery betting slips of the type used to wrap heroin and $415 on defendant’s person. The
$415 consisted of thirteen $1 bills, one $2 bill, two $5 bills, three $10 bills, and thirteen $20
bills. Detective Kashat said that the lotto tickets did not contain heroin.

       While defendant was sitting in a chair, handcuffed, Detective Rice was tabulating
evidence at a table near defendant. Detective Kashat testified that defendant made several
“excited utterances” about the evidence. Detective Kashat said that as the narcotics were being
brought to the table for tabulation, defendant said, “Either I sold to someone or someone told on
me.” Detective Kashat said that defendant indicated that his fingerprints would be on the firearm
found because he had moved it and placed it in the shoe. Likewise, defendant said his
fingerprints would be on the ammunition magazine. Detective Kashat asserted that neither he,
nor Detective Rice, nor any of the other officers said anything to elicit defendant’s statements.
Defendant maintained at trial that he “didn’t make any statements.”

                                                -2-
        Detective Kashat testified that telephone conversations between defendant and his wife
while defendant was in jail prompted a second search warrant for the same address on the day
following execution of the first search warrant. According to Detective Kashat, defendant twice
referred to a “plate near the bottom of the wall in the bedroom or in a room by the bathroom”
while speaking with his wife. When officers executed the second search warrant, they removed
a plate from a wall in the bedroom and found a box with a baggie inside that contained just over
4 grams of heroin. Detective Rice estimated the street value of the heroin to be $1,200.
Detectives Bush and Rice testified that, based on their experience investigating narcotics cases,
they believed that defendant possessed the heroin with the intent to distribute it.

        Prior to sentencing, defendant filed a motion for a new trial. Defendant submitted that
because plaintiff had not disclosed the CI’s identity, and the trial court had denied his motion for
disclosure, defendant had been unable to subpoena the CI. Defendant asserted that, where a
defendant seeks to compel the prosecutor to disclose the identity of a CI the court must hold an
in camera hearing to determine if the CI’s information would be beneficial to the defense.
Defendant alleged that plaintiff was duty bound to provide him with reasonable assistance in
locating the CI. Defendant argued that failure to produce the CI constituted a violation of his
right to confront the witnesses brought against him. The trial court denied the motion,
concluding that defendant was merely repeating the argument he had made in his motion for an
evidentiary hearing without giving the trial court a reason to change its previous ruling.

        Defendant first contends on appeal that the trial court abused its discretion by denying his
motion for a Franks1 hearing and disclosure of the CI. Whether to hold an evidentiary hearing
based on a challenge to a search warrant’s affidavit is left to the trial court’s discretion. People v
Poindexter, 90 Mich App 599, 609 n 4; 282 NW2d 411 (1979). A trial court has not abused its
discretion if its decision results in an outcome within the range of reasoned and principled
outcomes. People v Duncan, 494 Mich 713, 723; 835 NW2d 399 (2013). “However, the Court
reviews the facts supporting the denial of the evidentiary hearing for clear error and reviews the
application of those facts to the law de novo.” People v Martin, 271 Mich App 280, 309; 721
NW2d 815 (2006) (citation omitted). Clear error is present when the reviewing court is left with
a definite and firm conviction that an error occurred. People v Fawaz, 299 Mich App 55, 60;
829 NW2d 259 (2012).

       The Court reviews for an abuse of discretion a trial court’s decision on a motion to
disclose the identity of a confidential informant. People v Rodriguez, 65 Mich App 723, 728-
729; 238 NW2d 385 (1975).

        An affidavit supporting a search warrant is presumed to be valid. Martin, 271 Mich App
at 311, citing Franks v Delaware, 438 US 154, 171; 98 S Ct 2674; 57 L Ed 2d 667 (1978).
Nevertheless, “[a] defendant is entitled to a hearing to challenge the validity of a search warrant
if he ‘makes a substantial preliminary showing that a false statement knowingly and
intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant


1
    Franks v Delaware, 438 US 154, 171; 98 S Ct 2674; 57 L Ed 2d 667 (1978).


                                                 -3-
affidavit, and if the allegedly false statement is necessary to the finding of probable cause . . . .’ ”
Id., quoting Franks, 438 US at 155-156 (omission by Martin Court).

          To mandate an evidentiary hearing, the challenger’s attack must be more than
          conclusory and must be supported by more than a mere desire to cross-examine.
          There must be allegations of deliberate falsehood or of reckless disregard for the
          truth, and those allegations must be accompanied by an offer of proof. They
          should point out specifically the portion of the warrant affidavit that is claimed to
          be false; and they should be accompanied by a statement of supporting reasons.
          Affidavits or sworn or otherwise reliable statements of witnesses should be
          furnished, or their absence satisfactorily explained. Allegations of negligence or
          innocent mistake are insufficient. The deliberate falsity or reckless disregard
          whose impeachment is permitted today is only that of the affiant, not of any
          nongovernmental informant. . . . [Franks, 438 US at 171.]

         Defendant’s offer of proof in the instant case is that he did not do what the CI said he did,
i.e., he did not sell drugs from his residence within 48 hours of September 19, 2012. Notably,
defendant challenges the credibility of the CI, not the truthfulness of the affiant. The purpose of
a Franks hearing, however, is to determine whether “the affiant knowingly and intentionally, or
with a reckless disregard for the truth, inserted false material into the affidavit . . . .” Ulman, 244
Mich App 500, 510; 625 NW2d 429 (2001) (emphasis added); see also Franks, 438 US at 171
(“The deliberate falsity or reckless disregard whose impeachment is permitted today is only that
of the affiant, not of any nongovernmental informant.”). An informant’s reliability and
credibility are established where, as here, the affiant states that the informant has given reliable
information in the past, and that he personally purchased cocaine from defendant.2 People v
Mayes, 78 Mich App 618, 622; 261 NW2d 22 (1977).

        Moreover, it is clear from defendant’s brief to this Court, as well as his motion below,
that his request for disclosure of the CI is for the purpose of cross-examining the CI in order to
find something with which he can challenge the veracity of the affidavit and the validity of the
resulting search warrant. This is not a preliminary showing sufficient for a Franks hearing.
Franks, 438 US at 171 (“To mandate an evidentiary hearing, the challenger’s attack must be
more than conclusory and must be supported by more than a mere desire to cross-examine.”). In
sum, defendant’s challenge to the affidavit is arguably the type of challenge the United States


2
    Paragraph 3(D) of the affidavit reads as follows:
          The information provided by the CI is based on his/her personal knowledge and
          the CI is known to be reliable and the information credible because the CI has
          previously provided information to law enforcement officers regarding persons
          and or places involved in the sale or distribution of illegal controlled substances
          which has been verified and has resulted in the seizure and or recovery of
          controlled substances. Further, the information provided by the CI has been
          independently verified by investigating officers to the extent possible.



                                                  -4-
Supreme Court had in mind when it stated that the “requirement of a substantial preliminary
showing would suffice to prevent the misuse of a veracity hearing for purposes of discovery or
obstruction.” Id. at 170.

       Defendant suggests on appeal that the CI does not exist. Assuming that defense
counsel’s reference below to the “alleged CI” implied an assertion that the CI did not exist, the
law requires more for the production of a CI than a qualified statement that the CI does not exist.
This Court established in Poindexter that the procedure used to resolve claims that a CI does not
exist must parallel the procedure outlined in Franks:
               To mandate an evidentiary hearing, defendant’s attack must be more than
       conclusory, if possible, and must be supported by more than a mere desire to
       determine who the informant was. There must be specific allegations of
       deliberate falsehood or of reckless disregard for the truth. Those allegations must
       be accompanied by an offer of proof and should be accompanied by a statement
       of supporting reasons. Also, the defendant should furnish reliable statements of
       witnesses to support his claim, or satisfactorily explain their absence. If these
       requirements are met to the trial court’s satisfaction and the statements challenged
       by the defendant are set aside but sufficient content still remains in the affidavit to
       support a finding of probable cause, no hearing is required. On the other hand, if
       the remaining content is insufficient to support a finding of probable cause, the
       defendant is entitled to an evidentiary hearing. [Poindexter, 90 Mich App at 609.]

       Defendant’s challenge is not supported in the ways set forth in Poindexter. Rather,
defendant has manifested “a mere desire to determine who the informant was.”

        Defendant contends that the trial court’s denial of his motion for a Franks hearing to
examine the CI violates his rights under the Fourth, Fifth, and Sixth Amendments of the United
States Constitution.

        The Fourth Amendment requires any warrant to be judicially sanctioned and supported
by probable cause. US Const, Am IV. Defendant does not dispute that the search warrant in the
instant case was judicially sanctioned. “Probable cause sufficient to support the issuance of a
search warrant exists when all the facts and circumstances would lead a reasonable person to
believe that the evidence of a crime or the contraband sought is in the place requested to be
searched.” People v Lucas, 188 Mich App 554, 567; 470 NW2d 460 (1991) (citation omitted).
A magistrate may make a finding of probable cause to issue a search warrant on the basis of
information in a supporting affidavit supplied by an unnamed person where there are
“affirmative allegations from which the judge or district court magistrate may conclude that the
person spoke with personal knowledge of the information and either that the unnamed person is
credible or that the information is credible.” MCL 780.653. The affidavit at issue affirmatively
asserted that the unnamed informant was “reliable and the information credible because the CI
has previously provided information to law enforcement officers regarding persons and or places
involved in the sale or distribution of illegal controlled substances which has been verified and
has resulted in the seizure and or recovery of controlled substances.” Therefore, because the
search warrant was judicially sanctioned and supported by probable cause, there was no Fourth
Amendment violation.


                                                -5-
        The Sixth Amendment guarantees that the accused in a criminal prosecution will have the
right to confront the witnesses against him and to have compulsory processes for obtaining
witnesses in his favor. US Const, Am VI. The right of a criminal defendant to confront the
witnesses against him may be violated where the prosecution fails to produce an unnamed
informant who is a necessary res gestae witness, Roviaro v United States, 353 US 53, 60-65; 77
S Ct 623; 1 L Ed 2d 639 (1957), or where the trial court admits into evidence the affidavit
containing information from an unnamed source that was used to secure the search warrant,
People v Tanner, 222 Mich App 626, 632-633; 564 NW2d 197 (1997). In the instant case, the
charges brought against defendant were not based on the transaction in which the CI was
involved. The complainant was Detective Kashat, and the charges were based on evidence
discovered by Detectives Kashat, Bush, and Rice, all of whom defendant had the opportunity to
cross-examine. Thus, because the CI was not a witness against defendant with respect to the
crimes for which he was charged, defendant’s Sixth Amendment right to confront the witnesses
against him was not violated.

         The Fifth Amendment guarantees, among other things, that no person will be deprived of
life, liberty, or property without due process of law. US Const, Am V. There was no Fourth or
Sixth Amendment violation, and defendant did not make the necessary preliminary showing to
obtain a Franks hearing. Consequently, defendant was not deprived of due process.

        Defendant next contends that the trial court abused its discretion when it denied his
motion to vacate court costs. “The right of a court to impose costs in criminal cases is statutory.”
People v Cunningham, 496 Mich 145, 149; 852 NW2d 118 (2014) (internal quotation marks and
citation omitted), superseded by statute on other grounds as noted in People v Konopka, 309
Mich App 345; 869 NW2d 651 (2015) “Thus, courts may impose costs in criminal cases only
where such costs are authorized by statute.” Cunningham, 496 Mich at 149.

        Defendant was convicted of five felonies. For these, the trial court imposed the $340
statutory minimum costs pursuant to MCL 769.1j(1)(a) ($68 for each of defendant’s five felony
convictions). The trial court also imposed a $130 crime victim’s rights assessment fee, as
authorized by MCL 780.905(1)(a). Thus, the trial court imposed a total of $470 in costs. All
costs imposed by the trial court were specifically authorized by statute.

        Defendant also contends that his right to effective assistance of counsel was violated
when his first trial attorney, William Street, performed below a minimum level of competence at
the preliminary hearing, and when his second trial attorney, James Hession, was unprepared for
the hearing on defendant’s motion requesting a Franks hearing, failed to file an interlocutory
appeal of the trial court’s denial of defendant’s motion for a Franks hearing, and failed to move
for a Walker hearing.

        Defendant’s ineffective assistance claim is unpreserved because he did not raise this
claim in his motion for a new trial, see People v Unger, 278 Mich App 210, 232; 749 NW2d 272
(2008), nor did he make a timely request for an evidentiary hearing, People v Hoag, 460 Mich 1,
6; 594 NW2d 57 (1999). The Court’s review of unpreserved claims of ineffective assistance of
counsel is limited to errors apparent on the record. People v Jordan, 275 Mich App 659, 667;
739 NW2d 706 (2007). The determination whether a defendant has been deprived of the


                                                -6-
effective assistance of counsel presents a mixed question of fact and constitutional law. People v
Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).

        Effective assistance of counsel is presumed, and the defendant bears a heavy burden of
proving otherwise. People v Seals, 285 Mich App 1, 17; 776 NW2d 314 (2009). “[C]ounsel’s
ineffective assistance must be found to have been prejudicial in order to reverse an otherwise
valid conviction.” People v Pickens, 446 Mich 298, 314; 521 NW2d 797 (1994). A defendant
can overcome the presumption by showing that counsel failed to perform an essential duty and
that the failure was prejudicial to the defendant, People v Reinhardt, 167 Mich App 584, 591;
423 NW2d 275 (1988), or by showing a failure to meet a minimum level of competence, People
v Jenkins, 99 Mich App 518, 519; 297 NW2d 706 (1980).

        The gravamen of defendant’s claim against attorney Street is that he provided ineffective
assistance by failing to obtain dismissal of the two felony-firearm charges at the preliminary
examination. Defendant implies that he was entitled to dismissal on the ground that it was
lawful under the circumstances for him to possess a firearm, and he criticizes Street for failing to
find the caselaw to support this position.

        Even if defendant had been entitled to possess a firearm, which as a convicted felon he
was not, MCL 750.227f, the district court could still bind him over on the felony-firearm charges
if plaintiff presented evidence that defendant possessed or carried a firearm while committing a
felony. MCL 750.227b; People v Moore, 470 Mich 56, 62; 679 NW2d 41 (2004). Plaintiff
presented evidence at the preliminary examination that a handgun was in close proximity to
defendant when he was arrested, and that crack cocaine was found in defendant’s kitchen and
heroin in the wall. Possession of even a small amount of a controlled substance is a felony. See
MCL 333.7403(2)(iv). Plaintiff’s evidence with respect to each element of the felony-firearm
charges (possession of a firearm and commission of a felony) established probable cause to
believe that a crime had been committed and that defendant had committed it. MCL 766.13;
MRE 6.110(E). Therefore, defendant’s bindover was proper, regardless whether Street showed
that defendant had the right to possess a firearm.

        Defendant asserts that Street rendered ineffective assistance because he relied on “a case
that supported the right to bear arms, not for a convicted felon to possess a firearm.”
Defendant’s assertion fails to appreciate that this is what Street was trying to do. Street relied on
District of Columbia v Heller, 554 US 570; 128 S Ct 2783; 171 L Ed 2d (2008), to argue that
defendant has a Second Amendment right to have access to, i.e., constructive possession of, a
firearm lawfully owned by his wife. He then attempted to expand this Court’s holding in People
v Deroche, 299 Mich App 301; 829 NW2d 891 (2013),3 by arguing that a felony-firearm charge


3
  At issue in Deroche was whether someone who is intoxicated in his own home and lawfully,
constructively possessed a firearm could be charged under MCL 750.237 (prohibiting a person
from possessing or carrying a firearm while intoxicated). Deroche, 299 Mich App at 303. The
Court held that he could not because “lawful constructive possession of a handgun in an
individual’s home while that individual is intoxicated is protected by the Second Amendment.”
Id. at 309-310, 312.


                                                -7-
cannot be supported merely by constructive possession of a lawfully-owned firearm in one’s own
home. Given defendant’s status as a convicted felon, this was a well-reasoned approach.

         Defendant contends that attorney Hession rendered ineffective assistance by failing to
request a Walker hearing, by being unprepared for defendant’s Franks hearing, and by failing to
file an interlocutory appeal of the trial court’s denial of the motion for a Franks hearing.

        The purpose of a Walker hearing is to determine the voluntariness of an alleged
confession. People v Walker, 374 Mich 331, 336-339; 132 NW2d 87 (1965). Defendant is
essentially claiming that inventorying the evidence in front of him was an illegal interrogation
technique, and that said inventory coerced him to make the statements attributed to him by the
police but which, we note, defendant steadfastly denied making at trial.

        At the preliminary examination, attorney Street objected to the introduction of statements
allegedly made by defendant while detectives were collecting and tabulating evidence, and after
defendant had invoked his right to remain silent. Street contended, without supporting authority,
that tabulating the evidence in front of defendant in a custodial environment was a form of
interrogation. Plaintiff argued that the suppression of evidence required interrogation, which
meant questioning, and that there was no evidence that police had continued to question
defendant after he invoked his right to remain silent. Because Street had no authority to support
his position, the court overruled his objection.

        In light of the lack of legal and evidentiary support for requesting a Walker hearing,
neither Street nor Hession performed below an objective level of competence by not moving for
one. Our review of the record shows that none of the factors usually considered in determining
the voluntariness of statements were present in the instant case. See People v Tierney, 266 Mich
App 687, 708; 702 NW2d 24 (2005). Defendant had prior experience with the police, it is
undisputed that he was read his rights, and he stated at trial that he understood his Miranda4
rights. There was no evidence that defendant’s age was a consideration. In addition, defendant
has not claimed that he was injured, intoxicated, drugged, or in ill health when he gave the
statement, or that he had been deprived of food, sleep, or medical attention, or that he was
physically abused or threatened with abuse. Id. Thus, there is no evidentiary support that
defendant’s alleged statements were involuntary, nor legal support for his contention that
tabulating evidence within his sight constitutes “interrogation.” In light of the record, arguing
that defendant’s alleged statements were coerced would be a meritless position. And counsel
cannot be deemed ineffective for failing to advance meritless positions. People v Mack, 265
Mich App 122, 130; 695 NW2d 342 (2005).

        Defendant also asserts that attorney Hession provided ineffective assistance because he
inadequately prepared for defendant’s motion for an evidentiary hearing. Defendant does not
indicate what Hession failed to do, other than win the motion, and the fact that an attorney does
not prevail on a motion does not mean that the attorney rendered ineffective assistance. See



4
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


                                               -8-
People v Higginbotham, 21 Mich App 489, 493; 175 NW2d 557 (1970) (noting that “[e]ffective
representation does not mean successful representation”).

        Defendant also asserts that attorney Hession provided ineffective assistance by failing to
file an interlocutory appeal of the trial court’s denial of his motion for a Franks hearing and
disclosure of the CI “so the issue would have been resolved before trial ever began.” There is no
basis in the record for defendant’s assumption that, had Hession filed an interlocutory appeal, the
Franks issue would have been resolved in his favor prior to trial. On the first day that trial
testimony was scheduled to be taken, defendant asked the court for appointment of an attorney
with appellate experience because he wanted to file an interlocutory appeal of the court’s denial
of his request for a Franks hearing. The court denied defendant’s motion for a new attorney, and
clearly indicated that it was not going to stay the trial should defendant decide to pursue an
interlocutory appeal. Thus, even if Hession had filed an application for leave to appeal
immediately after the court’s February 6, 2014 denial of defendant’s Franks motion, the trial
would have proceeded.

        More importantly, assuming that Hession’s failure to file an interlocutory appeal
constituted performance below an objective level of competence, Jenkins, 99 Mich App at 519,
defendant cannot show that he was prejudiced, Reinhardt, 167 Mich App at 591. The decision
not to file an interlocutory appeal did not waive defendant’s right to appeal the trial court’s
Franks decision. A defendant whose pretrial motion is improperly denied has the option of
requesting an emergency interlocutory appeal or going to trial and preserving the issue for
appellate review should he be convicted. People v Reid, 113 Mich App 262, 268; 317 NW2d
589 (1982). We have addressed the propriety of the trial court’s denial of defendant’s motion for
a Franks hearing and disclosure of the CI.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ David H. Sawyer
                                                            /s/ Jane E. Markey




                                                -9-
