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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v JAMES R. KAUFMAN, Defendant-Appellant,

UNPUBLISHED April 4, 1997

No. 183091 Barry Circuit Court LC No. 94-000128-FH

Before: Hood, P.J., and Saad and T.S. Eveland*, JJ. PER CURIAM. Defendant was convicted of manufacturing marijuana, second offense, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c), MCL 333.7413(2); MSA 14.15(7413)(2), following a jury trial. Defendant, thereafter, admitted to being a habitual offender, third offense, MCL 769.11; MSA 28.1083. He was sentenced to five to sixteen years' imprisonment, and appeals as of right. We reverse and remand. State Trooper Terry Klotz testified at the preliminary examination that he received an anonymous telephone call on May 22, 1994. The caller indicated that Molly Westrate had approximately 200 marijuana plants growing in her basement and that her son, defendant, had a gun buried in his backyard that was used by his brother in an armed robbery. As a result of the call, without a search warrant, Trooper Klotz and Trooper Michael Herendeen went to Westrate's house. The troopers, both in uniform, arrived at the house in separate patrol cars. The front door was open but the screen door was closed. Trooper Klotz testified that he knocked on the door, and when he did not receive a response, he rang the doorbell. Westrate, whom Trooper Klotz was "familiar with," came to the front door. Trooper Klotz identified himself and Trooper Herendeen and "advised her that [they] were there to get the marijuana out of her basement." Westrate said "[e]xcuse me?" and Trooper Klotz repeated his statement. Westrate "turned around and started to walk away from the door." Trooper Klotz called out "Molly" and Westrate returned to the door. Trooper Klotz testified that he then said, "the marijuana's in your basement, isn't it?" and she replied that it was. Trooper Klotz testified that she then opened the door and said "come in." The troopers went into the kitchen area, and Trooper Herendeen proceeded into the basement. * Circuit judge, sitting on the Court of Appeals by assignment. -1

Trooper Herendeen testified that Westrate let them into the house and directed them to the basement. He proceeded into the basement and "looked around." He noticed a locked door in the basement and went to the foot of the stairs and called Westrate. When she came to the top of the stairs, he told her that he "would need a key . . . to the locked door." Westrate patted her pockets looking for the key, said "I don't have it," and walked away. A few minutes later, defendant appeared with the key and unlocked the door. There were 594 marijuana plants behind the locked door. Defendant admitted that the marijuana plants belonged to him. The two troopers were the only witnesses presented at the preliminary examination. After hearing the evidence, defendant was bound over to the circuit court on the charge of manufacturing marijuana. At a pretrial hearing, defense counsel made an oral motion to suppress the evidence, arguing that the search was illegal. In making their arguments, the parties simply referred to the preliminary examination transcript. The trial court did not order an evidentiary hearing or rule on the propriety of the search. The trial court simply denied defendant's motion by reaffirming the findings of the district court that there was sufficient evidence presented to indicate that defendant had committed a crime. At trial, Trooper Klotz and Trooper Herendeen testified in conformity with the testimony given at the preliminary examination. After the prosecution presented its case, defense counsel made a motion for a directed verdict, again arguing that the search was illegal. The trial court, in denying defendant's motion, indicated that it was "satisfied that the Court's decision was correct and I would reaffirm the decision that the search and seizure was appropriate and did not violate the rights of --[defendant]." Defendant first argues that the trial court abused its discretion in denying his motion to suppress the evidence because any consent to the search of the room containing the marijuana was involuntary and the production of the key to unlock the door in the basement was coerced. This Court will not reverse a trial court's decision following a suppression hearing unless it is clearly erroneous. People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983). Therefore, the trial court's decision will be affirmed unless, upon a review of the record, this Court is left with a definite and firm conviction that a mistake was made. People v Chambers, 195 Mich App 118, 121; 489 NW2d 168 (1992). We need not discuss the interplay between the Fourth Amendment and the consent exception , because we find that the trial court abused its discretion in denying defendant's motion to suppress the evidence without first holding an evidentiary hearing. In People v Talley, 410 Mich 378, 382, 391 n 3; 301 NW2d 809 (1981), our Supreme Court specifically disapproved of the practice of relying exclusively on preliminary examination transcripts in conducting suppression hearings. See also People v Whittaker, 187 Mich App 122, 129-130; 466 NW2d 364 (1991). Our Supreme Court further stated:
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Even had the trial court chosen to give express consideration to the constitutionality of the seizure, it could not properly have decided whether or not the evidence should have been suppressed without a full evidentiary hearing--listening to -2

witnesses and judging other evidence--to determine whether or not the seizing officer had probable cause to seize the evidence. Since the trial court did not have such a full evidentiary hearing it would have no way of knowing whether the facts in the case authorized or did not authorize the officer to seize the evidence. For the Court of Appeals to presume to rule on the merits in such an absence of proper procedure requires this Court to point out to that Court and all trial courts that a motion to suppress evidence requires the holding of a full evidentiary hearing and any attempt to rule on such a motion on the basis of a preliminary examination transcript alone is inadequate and erroneous. *** The hearing upon remand is to be a de novo inquiry into the constitutional validity of the contested seizure. The trial court in this case, and all other trial courts in the conduct of all future suppression hearings, shall not place exclusive reliance on the preliminary examination transcript in the determination of the legality of a contested search or seizure. [Id. at 389-390.] There are factual differences between the instant case and Talley. In this case, defense counsel did not file a written motion to suppress the evidence or formally request an evidentiary hearing. Further, in Talley, the defendant's motion to suppress focused on the lack of probable cause. We, nevertheless, believe that Talley is still controlling. Accordingly, the trial court erred in deciding defendant's motion to suppress solely on the basis of the preliminary examination transcript. Defendant also argues that he was denied effective assistance of counsel because defense counsel failed to effectively challenge the improper search of the premises. We disagree. Defendant raises several claims of ineffective assistance of counsel. Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise. People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of counsel, a defendant must show that counsel's performance was below an objective standard of reasonableness under prevailing norms and that there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. Id. In this case, at the pretrial hearing, defense counsel indicated: Its our position that the district judge abused its discretion in binding this matter over on several respects. One, he allowed the illegal search and seizure to come in, which is where these fellows allegedly found all these plants growing. However inexpertly, defense counsel did move to suppress the evidence on the grounds that the search of the premises was illegal, and the trial judge understood and addressed the motion. We are not convinced that, but for this counsel's actions, the outcome of defendant's trial would have been different. Rather, the trial court improperly addressed the motion. As previously discussed, the trial -3

court should have held an evidentiary hearing before ruling on defendant's motion to suppress the evidence. We, therefore, conclude that defendant was not denied effective assistance of counsel on this basis. Finally, defendant argues that the trial court erred by applying both the controlled substance sections of the Public Health Code,

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