PEOPLE v. NUNEZ, 242 Mich. App. 610

Meter, P.J. Defendant appeals as of right from his conviction, following a bench trial, of possession of 225 grams or more, but less than 650 grams, of cocaine, MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). The trial court sentenced him to twenty to thirty years’ imprisonment. We affirm. Defendant was arrested in March 1997 on a federal drug indictment. Subsequently, the police, relying on a search warrant, searched an apartment in Kent-wood and discovered approximately 330.9 grams of cocaine. This cocaine formed the basis for defendant’s instant possession conviction.

Defendant first argues that the trial court erred in denying his motion to suppress the cocaine seized from the Kentwood apartment. Defendant contends that the affidavit offered in support of the search warrant lacked sufficient factual statements to establish probable cause to believe that cocaine would be found in the apartment. We disagree. A search warrant may be issued only on a showing of probable cause that is supported by oath or affirmation.

People v Sloan, 450 Mich 160, 166-167; 538 NW2d 380 (1995); Const 1963, art 1, § 11; MCL 780.651(1); MSA 28.1259(1)(1), MCL 780.653; MSA 28.1259(3). “Probable cause exists when a person of reasonable caution would be justified in concluding that evidence of criminal conduct could be found in a stated place to be searched.” People v Stumpf, 196 Mich App 218, 227; 492 NW2d 795 (1992).

In assessing a magistrate’s determination in regard to probable cause, the search warrant and underlying affidavit must be read in a commonsense and realistic manner, and a reviewing court must pay deference to a magistrate’s conclusion that probable cause existed. Sloan, supra at 168. Such deference requires the reviewing court to determine whether a reasonably cautious person could have concluded that the finding of probable cause had a “substantial basis.” Id. Here, Michigan State Police Detective Sergeant Jeffery Anthony executed the affidavit in support of the search warrant.

In the affidavit, Anthony stated that (1) he received a copy of a federal indictment charging defendant with conspiring to deliver cocaine and was assigned to arrest him; (2) he learned from a detective of the Wyoming Police Department that defendant was driving an older-model Chevrolet with a particular license number; (3) he ran a Law Enforcement Information Network (lein) check on the license number and learned that the license plate was registered to defendant at the Kentwood apartment; (4) he contacted the manager of the Kentwood apartment complex, who indicated that no one had leased an apartment in defendant’s name and that a woman held the lease to the apartment in question; (5) after undertaking surveillance of the complex for two days, Anthony never saw the woman’s vehicle, but defendant’s vehicle was parked at the complex on two different occasions, once completely covered with snow, suggesting that it had been parked there for some time; (6) after defendant was arrested on the federal warrant while driving his vehicle, defendant gave an address different from the Kentwood address and stated that he had lived at the different address for the past fourteen years; (7) he (Anthony) then searched the vehicle and found a key to the Kentwood apartment, as well as a paid Consumer’s Power Company bill mailed to defendant at the Kent-wood apartment, a partial Ameritech phone bill addressed to defendant at the same address, and an unpaid pending MichCon bill mailed to defendant at the same address; and (8) a drug-sniffing dog went through the vehicle and discovered a bag containing a small white chunk of material that field tested positive for cocaine.

Under the totality of these circumstances, a reasonably cautious person could conclude that there was a substantial basis for the magistrate’s finding of probable cause. Indeed, defendant was arrested as a drug trafficker, cocaine was found in his vehicle, and there was abundant evidence that he resided at or habitually used the Kentwood apartment and had lied about this to the police. Defendant contends that the affidavit did not support a search of the Kentwood apartment because nothing in the affidavit tied the alleged drug activity to the apartment.

However, defendant’s denial that he lived at the Kentwood apartment, combined with the reasonable inference that drug traffickers often keep evidence of illicit activity in their homes, provided a sufficient basis for the magistrate’s finding of probable cause to search the apartment. See People v Darwich, 226 Mich App 635, 639-640; 575 NW2d 44 (1997). We acknowledge that in Darwich, the affiant specifically stated that in his experience, evidence of drug activity is often found in a drug trafficker’s home. See id. at 638. Here, Anthony made no such statement.

The magistrate, however, was free to make this logical inference on his own. Defendant’s denial that he lived at the Kentwood apartment provided even more evidence that contraband would be found in the apartment. The trial court did not err in denying defendant’s motion to suppress. Next defendant argues that the prosecution failed to present sufficient evidence to sustain the trial court’s finding of guilt.

When reviewing the sufficiency of the evidence in a bench trial, we must view the evidence, in the light most favorable to the prosecution and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v Petrella, 424 Mich 221, 268-279; 380 NW2d 11 (1985). Defendant contends that without the evidence seized under the search warrant, there was insufficient evidence to prove that defendant possessed the requisite quantity of cocaine. Because the warrant was valid, this argument fails.

Defendant additionally contends that even if the cocaine was validly seized, the prosecution failed to present evidence sufficient to establish beyond a reasonable doubt that defendant knew of or intended to possess the cocaine. We disagree. Possession is a term that “signifies dominion or right of control over the drug with knowledge of its presence and character.” People v Maliskey, 77 Mich App 444, 453; 258 NW2d 512 (1977). Possession “may encompass both actual and constructive possession.” Id.

Moreover, “possession may be proved by circumstantial evidence and reasonable inferences drawn from this evidence.” Id. The prosecution’s evidence showed that a large quantity of cocaine was found in the apartment in which defendant resided or at least habitually used. Indeed, several utility bills found in defendant’s car were addressed to defendant at the apartment, defendant had a key to the apartment, and defendant’s snow-covered car was seen parked at the apartment.

Moreover, defendant’s friend, Sha-Ron Chamberlain, testified that defendant gave her cash and asked her to rent the Kentwood apartment, that she did so, but that she had never actually lived at the apartment. Instead, according to Chamberlain, defendant was living in the apartment at the time of his arrest. Chamberlain further testified that on the night of defendant’s arrest, defendant called her from jail and asked her to remove a glove from the apartment; a later investigation revealed that this glove contained cocaine.

Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that the cocaine located in the apartment belonged to defendant. Defendant additionally contends that the prosecution failed to present sufficient evidence to support his conviction because the prosecution failed to show that the cocaine was not obtained by a valid prescription or some other authorized means. However, it was not the prosecution’s burden to prove beyond a reasonable doubt that defendant did not obtain the cocaine by legal means.

Defendant bore the burden of presenting some competent evidence that he was legally authorized to possess the cocaine, and he failed to meet this burden. See People v Pegenau, 447 Mich 278, 289-293 (Mallett, J.), 307 (Cavanagh, C.J.); 523 NW2d 325 (1994), and MCL 333.7531; MSA 14.15(7531). Finally, defendant argues that he is entitled to resentencing on three grounds.

First, defendant argues that the sentencing court erred in failing to find substantial and compelling reasons to impose a sentence below the statutorily mandated twenty-year minimum sentence provided in MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii). See MCL 333.7403(3); MSA 14.15(7403)(3). A trial court’s determination regarding substantial and compelling reasons to depart from a statutorily mandated minimum sentence is reviewed for an abuse of discretion. See People v Fields, 448 Mich 58, 77; 528 NW2d 176 (1995).

Our review of the record fails to disclose any substantial and compelling reasons for departure from the mandatory minimum sentence. See People v Johnson (On Remand), 223 Mich App 170, 172-173; 566 NW2d 28 (1997) (indicating that deviations from mandatory sentences are appropriate only in exceptional cases). In fact, the record reveals that defendant had been involved in drug trafficking since 1985 and that his instant conduct amounted to an escalation of his involvement in trafficking. These are circumstances to which the mandatory minimum sentence was intended to apply. See id. at 172, and Fields, supra at 64.

Accordingly, the trial court did not abuse its discretion in imposing the mandatory minimum sentence. Second, defendant argues that the court erred in considering only two of the four sentencing considerations — deterrence, rehabilitation, punishment, and protection of society — set forth in People v Snow, 386 Mich 586; 194 NW2d 314 (1972). Our review of the sentencing transcript reveals that the sentencing court gave no reasons for the sentence imposed but merely relied on the mandatory minimum sentence dictated by MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii).

A court’s reliance on a statutorily required minimum sentence satisfies the articulation requirement, see People v Poppa, 193 Mich App 184, 190-191; 483 NW2d 667 (1992), and People v Lawson, 195 Mich App 76, 77-78; 489 NW2d 147 (1992), and there is no evidence that the trial court failed to consider relevant mitigating factors in sentencing defendant.

See also People v Girardin, 165 Mich App 264, 268; 418 NW2d 453 (1987), and People v Davis, 181 Mich App 354, 360; 448 NW2d 842 (1989) (indicating that a failure to comment on each of the Snow factors does not destroy the propriety of the sentencing court’s rationale). No abuse of discretion occurred. Third, defendant argues that the mandatory minimum sentence of twenty years dictated by MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) violates the federal constitutional protection against cruel and unusual punishment.

Defendant’s argument must fail, however, because it was previously rejected by this Court in People v DiVietri, 206 Mich App 61, 63-65; 520 NW2d 643 (1994). Affirmed. Fitzgerald, J., concurred. In an addendum to his appellate brief, defendant contends that this arrest could not support a finding of probable cause because the arrest related to an incident that occurred in 1995. The presence of some cocaine in defendant’s vehicle, however, supported a reasonable inference that defendant was still trafficking in cocaine.

We note that DiVietri involved a challenge to MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) on state constitutional grounds, whereas in the instant case defendant challenges the statute on federal constitutional grounds. DiVietri nonetheless compels a rejection of defendant’s argument, however, because the federal constitutional prohibition against “cruel and unusual” punishment, US Const, Am VIII, affords lesser protection than the state constitutional prohibition against “cruel or unusual” punishment, Const 1963, art 1, § 16. See Carlton v Dep’t of Corrections, 215 Mich App 490, 505; 546 NW2d 671 (1996).

In other words, if MCL 333.7403(2)(a)(ii); MSA 14.15(7403)(2)(a)(ii) passes muster under the state constitution, then it necessarily passes muster under the federal constitution.