                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   October 18, 2016
              Plaintiff-Appellee,

v                                                                  No. 326970
                                                                   Chippewa Circuit Court
MARK NOLAN,                                                        LC No. 14-001419-FH

              Defendant-Appellant.


Before: MARKEY, P.J., and MURPHY and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Defendant was convicted by a jury of possession with intent to deliver less than 50 grams
of heroin, MCL 333.7401(2)(a)(iv), possession of less than 25 grams of methadone, MCL
333.7403(2)(a)(v), possession of a controlled substance in jail, MCL 801.263(1), and maintaining
a drug house, MCL 333.7405(1)(d), but was acquitted of delivery of less than 50 grams of
heroin, MCL 333.7401(2)(a)(iv). Defendant appeals as of right. We affirm.

        Following a confidential informant’s (CI) two controlled purchases of suspected
controlled substances from defendant; the police executed a warrant and searched the apartment
where defendant was living, seizing a package of heroin. After his arrest, pills that were later
determined to contain methadone were found in defendant’s sock at the jail.

        Defendant filed a pro se supplemental brief pursuant to Supreme Court Administrative
Order No. 2004-06, Standard 4, raising almost identical arguments as those in the brief filed on
his behalf by his attorney. Where necessary, additional arguments raised by defendant in his pro
se brief are addressed separately.

        Defendant argues in his principal brief on appeal that there was insufficient evidence to
support all of his convictions and that his right to due process was therefore violated. In his
Standard 4 brief, defendant challenges the sufficiency of the evidence in relation to his
possession of methadone and possession of a controlled substance in jail convictions. We
“review[] de novo a challenge on appeal to the sufficiency of the evidence.” People v Ericksen,
288 Mich App 192, 195; 793 NW2d 120 (2010). Taking the evidence in the light most favorable
to the prosecutor, we conclude that a rational trier of fact could find defendant guilty beyond a
reasonable doubt of all the offenses. People v Tennyson, 487 Mich 730, 735; 790 NW2d 354
(2010). Moreover, because we conclude that the evidence was sufficient, we also conclude that


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there was no due process violation. See People v Hampton, 407 Mich 354, 368; 285 NW2d 284
(1979).

        To support a conviction for possession with intent to deliver less than 50 grams of a
controlled substance—here, heroin—the prosecution must prove: “(1) that the recovered
substance is [heroin], (2) that the [heroin] is in a mixture weighing less than fifty grams, (3) that
[the] defendant was not authorized to possess the substance, and (4) that [the] defendant
knowingly possessed the [controlled substance] with the intent to deliver.” People v Wolfe, 440
Mich 508, 516-517; 489 NW2d 748 (1992). To constructively possess the controlled substance,
the person must have the right to exercise control of the [controlled substance] and know that it
was present. Id. at 520. Constructive possession exists when the totality of the circumstances
indicates a sufficient nexus between the defendant and the controlled substance. Id. at 521. In
other words, constructive possession of narcotics exists when the defendant has the right to
exercise control over the narcotics and has knowledge of their presence. People v Hardiman,
466 Mich 417, 421 n 4; 646 NW2d 158 (2002).

       With regard to the first three elements of possession of heroin, Grayling Crime
Laboratory forensic scientist Karen Brooks testified that the bag seized from defendant’s
apartment contained 8.4 grams of heroin, and there was no evidence that defendant was
authorized to possess the substance. Defendant’s argument that the fourth element was not
proved beyond a reasonable doubt—that he knowingly possessed the heroin with intent to
deliver— is without merit. The CI identified defendant as his source for heroin and as the person
who sold him the drugs for both controlled purchases, the second purchase occurring in the
apartment defendant shared with his mother and her boyfriend. The heroin was found in a duffle
bag and in the same bedroom where defendant’s driver’s license and a bill addressed to
defendant were found. Under these facts, it was rational for the jury to find that defendant had
the right to exercise control over the narcotics and had knowledge of their presence. Id.
Chippewa County Sheriff’s Department Detective Sergeant Greg Postma testified that in his
experience as a police officer, 8.4 grams of heroin was too large a quantity for personal use.
Specifically, he testified that the quantity involved could be broken up into 84 tenth-of-a-gram
packets and sold as “points,” which is sufficient to infer intent to deliver. People v Abrego, 72
Mich App 176, 181-182; 249 NW2d 345 (1976). We conclude that it was not irrational for the
jury to reject testimony by one witness that the drugs belonged to a man only identified as
“Buck,” in favor of the evidence offered by police officers. Wolfe, 440 Mich at 519. We
conclude that the totality of these circumstances allows a rational fact finder to conclude that
defendant constructively possessed the heroin beyond a reasonable doubt.

       The elements of maintaining a drug house are: “(1) the defendant kept or maintained a
building or dwelling; (2) the building or dwelling was kept or maintained for using or selling
drugs; (3) the defendant knew the building or dwelling was used for this purpose; and (4) the
defendant had some general control over the building or dwelling. People v Bartlett, 231 Mich
App 139, 153-154; 585 NW2d 341 (1998). A person must have “the ability to exercise control
or management over the house.” Id. 152. The phrase “keep or maintain” “implies usage with
some degree of continuity that can be deduced by actual observation or repeated acts or
circumstantial evidence[.]” People v Thompson, 477 Mich 146, 155; 730 NW2d 708 (2007).



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       As stated earlier, the CI identified defendant as his source for heroin and identified
defendant as the person who sold him the drugs for both controlled purchases, with the second
purchase occurring in the apartment where defendant lived. The heroin was found in a duffle
bag and in the same bedroom where defendant’s driver’s license and a bill addressed to
defendant were found. It was thus rational for the jury to find that defendant had the right to
exercise control over the narcotics and had knowledge of their presence. See Bartlett, 231 Mich
App at 152 (holding that a defendant’s general control, not supervisory control, over at least a
portion of a dwelling and knowledge that drugs are kept or sold from the dwelling is sufficient to
support the defendant’s conviction of maintaining a drug house). There was testimony that the
amount was too large for personal use and there was a scale found with the heroin. Although
one witness for the defense testified that the bag belonged to a man only identified as Buck, the
jury apparently did not find him credible, which is within its purview as the trier of fact, and is
not a basis for challenging the sufficiency of the evidence. People v Eisen, 296 Mich App 326,
331; 820 NW2d 229 (2012). The totality of these circumstances allows a rational fact-finder to
conclude that defendant had general control over his bedroom and knowingly maintained a drug
house in the apartment.

        MCL 333.7403(2)(a)(v) prohibits the possession of methadone, a schedule 2 controlled
substance, MCL 333.7214(b). The elements of possession of less than 25 grams of methadone
are: (1) the defendant knowingly or intentionally possessed a controlled substance, (2) the
substance was methadone, and (3) the controlled substance weighed less than 25 grams. MCL
333.7403(2)(a)(v). The elements of possession of a controlled substance in jail are: (1) that the
defendant was a prisoner who (2) possessed or controlled (3) a controlled substance. People v
Williams, 294 Mich App 461, 470; 811 NW2d 88 (2011). Defendant asserts in both his principal
brief on appeal and his pro se brief that there was insufficient evidence to support both offenses,
arguing only that the prosecution failed to prove beyond a reasonable doubt that the pills
contained methadone. We disagree. Brooks, who had 21 years of experience, identified the pills
as methadone at trial. Although she did not perform a chemical analysis, she testified that she
made the physical identification by viewing the markings on the pills and using an online
database containing information on all pharmaceutical tablets, which indicated that tablets with
those markings contained methadone. Brooks further testified that she identifies pills through
the database “all the time.” It was the trier of fact’s role to determine the weight of the evidence
and the credibility of Brooks. Eisen, 296 Mich App at 331. Her testimony was sufficient to
establish that the pills recovered from defendant were a controlled substance for purposes of
possession of methadone and possession of a controlled substance in a jail.

        Next, defendant argues in his principal brief and his pro se brief that the search warrant
was invalid on the basis that a sufficient nexus was lacking between defendant and the place
searched, and that the affidavit contained misleading or false information, was based on hearsay,
and was stale. This issue is preserved because defendant filed a motion to suppress the evidence
in the trial court. People v Unger, 278 Mich App 210, 243; 749 NW2d 272 (2008). “A court’s
factual findings at a suppression hearing are reviewed for clear error, but the application of the
underlying law—the Fourth Amendment of the United States Constitution and article 1, § 11 of
the Michigan Constitution—is reviewed de novo.” People v Slaughter, 489 Mich 302, 310; 803
NW2d 171 (2011). We give great deference to a magistrate’s finding of probable cause to issue
a search warrant. People v Mullen, 282 Mich App 14, 21; 762 NW2d 170 (2008). We read the
search warrant and the affidavit in a common-sense and realistic manner, People v Stumpf, 196

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Mich App 218, 220; 492 NW2d 795 (1992), and presume that the affidavit supporting the search
warrant is valid, People v Martin, 271 Mich App 280, 311; 721 NW2d 815 (2006).

        The United States and Michigan Constitutions both guarantee every person the right to be
free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. The
Michigan Constitution is “construed to provide the same protection as that secured by the Fourth
Amendment, absent ‘compelling reason’ to impose a different interpretation.” Slaughter, 489
Mich at 311 (quotation marks and citations omitted).

        We have reviewed the affidavit and conclude that there is a substantial basis for the
magistrate’s conclusion that there was a fair probability that contraband or evidence of a crime
would be found in defendant’s apartment. People v Russo, 439 Mich 584, 604; 487 NW2d 698
(1992).

        First, the affidavit provided sufficient facts to establish that the apartment searched was
the scene of a criminal enterprise. The affiant noted in the affidavit that the CI made two
controlled purchases from defendant, including one in defendant’s apartment. Reading the
search warrant and the affidavit in a common-sense and realistic manner, Stumpf, 196 Mich App
at 220, a reasonably cautious person could have concluded that there was a substantial basis that
probable cause existed to find narcotics in defendant’s apartment because one of the purchases
occurred in defendant’s apartment. See People v Martin, 271 Mich App 280, 298; 721 NW2d
815 (2006).

        Next, we conclude that the warrant was not stale. We recognize that a search warrant
must be supported by probable cause existing at the time the warrant is issued. People v
Osborn, 122 Mich App 63, 66; 329 NW2d 533 (1982). The test for staleness is not whether
there is recent information to confirm that a crime is being committed but whether probable
cause is sufficiently fresh to presume that the sought items remain on the premises. Id. In
determining whether the information is stale, this Court also considers factors such as the nature
of the property sought, the place to be searched, and the character of the crime, i.e., whether the
crime is a single instance, or an ongoing pattern of protracted violations, [and] whether the
inherent nature of a scheme suggests that it is probably continuing. Russo, 439 Mich at 605-606.
        Here, the second purchase by the CI occurred only one week before the warrant was
issued. In addition, there were two controlled purchases, which is some evidence of an ongoing
pattern of protracted violations. As further evidence, there was information in the affidavit that
defendant was raising money to go down state to purchase a large quantity of narcotics, which is
similarly indicative of an ongoing scheme of drug activity. Finally, the warrant in part
authorized the search for records and documents related to the alleged sale of drugs as part of an
ongoing drug business; under these circumstances, probable cause that those items would be in
defendant’s apartment was sufficiently fresh to presume that the sought items remained on the
premises. Id. at 605.

       Defendant next argues in both the brief filed by his attorney and his pro se brief that the
warrant was invalid because the affiant had no personal knowledge of the facts and allegedly
made material misrepresentations and false statements in the affidavit. First, we note that it was
unnecessary for the affiant to have personal knowledge of the facts on which the warrant was
sought because he informed the magistrate in the affidavit that he received information regarding

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the two controlled purchases from a fellow officer. People v Mackey, 121 Mich App 748, 753-
754; 329 NW2d 476 (1982). It was appropriate for the court to consider credible the information
about the controlled purchases received by the affiant from a fellow officer and this information
was properly used as a basis for the warrant affidavit. Id.

        Moreover, some of the facts in the affidavit were supplied by the fellow officer based on
an independent police investigation; they were not just based on information supplied by the CI.
People v Sellars, 153 Mich App 22, 27; 394 NW2d 133 (1986). Specifically, the affiant
confirmed that defendant was on parole, living at the address to be searched, and that defendant
was trying to get his parole officer to take him off a GPS tether. A fellow officer also informed
the affiant that defendant was trying to make a drug run down state. Together, it could be
concluded that defendant wanted the tether removed so that he could purchase the drugs down
state without a tether tracking his movements. Further, the warrant in part authorized the search
for records and documents related to the alleged sale of drugs as part of an ongoing drug
business. A reasonably cautious person could have concluded, under the totality of the
circumstances, that there was a substantial basis for the magistrate’s reliance on the information
in the affidavit. Mackey, 121 Mich App at 753-754. We note that, contrary to defendant’s
argument in his pro se brief, it was irrelevant whether the police had probable cause to obtain the
search warrant absent the CI’s allegations. Instead, the proper inquiry is whether there was a
substantial basis for the magistrate’s conclusion that there was a fair probability that contraband
or evidence of a crime would be found in a particular place. Russo, 439 Mich at 605.

        Defendant also argues that the warrant was invalid because the affiant allegedly stated in
the affidavit that he knew and had worked with the CI in the past, when he had not done so.
Although the affiant’s statement suggested that he was claiming that the CI was known to him, it
is unclear from the affidavit whether the affiant was stating that he, his fellow officer, or both
knew that the CI was reliable regarding information given in the past. Regardless, this argument
has no merit. The information in the affidavit regarding the independent police investigation and
controlled purchases was corroborating evidence that substantially verified the CI’s information
and provided support for a finding by the magistrate that the CI was reliable, or at the very least
that the information was reliable. See People v Ulman, 244 Mich App 500, 509-510; 625 NW2d
429 (2001); Sellars, 153 Mich App at 27. See also People v Poole, 218 Mich App 702, 706; 555
NW2d 485 (1996) (“A search warrant affidavit must provide sufficient facts from which a
magistrate could find that the information supplied was based on personal knowledge and that
either the unnamed person was credible or the information was reliable.”).

        Defendant argues in his pro se brief that the affiant intentionally disregarded the truth
when he stated that defendant was seen at the second controlled purchase wearing a snowmobile
jacket, which was listed in the affidavit as an item to be seized, asserting that police officers were
unable to identify defendant as the seller. The information provided in the affidavit was not
false. The CI identified defendant as the person from whom he bought the purported drugs
during the second controlled purchase. One police officer testified at trial that while he could not
be certain the person he saw was defendant coming out of the apartment building after the
purchase, he identified the coat the person was wearing and that the person had the same height,
build, and weight as defendant. In addition, another police officer identified the second voice on
the audio recording, from the second purchase, as belonging to defendant. Under these facts,
defendant is unable to establish that the search warrant was procured with allegedly false

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information because there is no evidence that affiant knowingly and intentionally, or with
reckless disregard for the truth, inserted false material into the affidavit and that the false
material was necessary to a finding of probable cause. Franks v Delaware, 438 US 154, 155-
156, 171-172; 98 S Ct 2674; 57 L Ed 2d 667 (1978).

       Affirmed.

                                                          /s/ Jane E. Markey
                                                          /s/ William B. Murphy
                                                          /s/ Amy Ronayne Krause




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