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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLY FRANCIS GARCIA, Defendant-Appellant.

UNPUBLISHED September 20, 2011

No. 299497 Oakland Circuit Court LC No. 2010-230782-FH

Before: M.J. KELLY, P.J., and OWENS and BORRELLO, JJ. PER CURIAM. Defendant appeals as of right from his convictions by jury of carrying a concealed weapon (CCW), MCL 750.227, felon in possession of a firearm, MCL 750.224f, possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v), possession of marijuana, MCL 333.7403(2)(d), operating while intoxicated (OWI), MCL 257.625, and three counts of possession of a firearm during the commission of a felony, MCL 750.227b. He was sentenced as a fourth habitual offender to 8 to 40 years in prison for the CCW and felon in possession convictions, 3-40 years in prison on the possession of cocaine conviction, 154 days on the possession of marijuana conviction, 93 days on the OWI conviction and 2 years in prison on the felony firearm convictions. We affirm. I. FACTS On February 4, 2010, at around 1:30 a.m., defendant, who was intoxicated, drove out of the parking lot of a bar. He severely damaged the car he was driving when he drove into another car's lane and side-swiped that vehicle. Defendant was sitting in the driver's seat revving his engine when police arrived. Officer Bryan Wood testified that he ordered defendant to turn off the engine of the car and open the door. As soon as defendant opened the door, Officer Wood could smell a strong odor of both alcohol and marijuana. Defendant had red glassy eyes and his speech was slurred. Officer Wood ordered defendant out of the car and instructed him to keep his hands on the car. Defendant ignored the commands and continued to reach into his right front pocket. Officer Wood testified that he pulled defendant's hand away from defendant's pocket three times and continued to order defendant to place his hands on the car. Officer Wood patted down defendant and felt the handle of a handgun in his right front pocket. Officer Wood -1-

handcuffed defendant and recovered a fully loaded five shot .38 caliber Smith and Wesson revolver. A search of defendant's person revealed a "toot" straw (common paraphernalia to ingest cocaine) and $540.00. Defendant was then placed in the back of a patrol car. A search of the vehicle revealed a gun case matching the gun found on defendant's person, a digital scale, two baggies of marijuana (2 ounces .94 ounces), three prescription pill bottles, one corner tear containing three pills (one Xanax pill and two unknown pills), and eight additional Xanax pills. The marijuana was field tested which yielded a positive result. A search of the trunk revealed, another "toot" straw, a cocaine grinder with cocaine, five rounds of .38 caliber ammunition, a scale, a bottle of inositol (commonly used as a cutting agent for cocaine), a mirror, and a razor blade. The cocaine was field tested yielding positive results for cocaine. Also in the car were a large breathing machine, and several other prescription pill bottles with defendant's name on them. Defendant submitted to a breath test, which revealed his blood alcohol content (BAC) to be .21. II. SEARCH OF DEFENDANT'S VEHICLE Defendant argues that the search of his vehicle without a warrant violated his Fourth Amendment rights, and that any evidence obtained from that search should have been inadmissible. We disagree. Defendant did not challenge the search of the vehicle at trial; therefore, this issue is unpreserved. Because this issue is unpreserved, this Court's review is limited to plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). This Court reviews constitutional issues de novo. People v Eaton, 241 Mich App 459, 461; 617 NW2d 363 (2000). "[T]he basic rule [is] that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Arizona v Gant, 556 US 332; 129 S Ct 1710, 1716; 173 L Ed 2d 485 (2009) (citation and internal quotation marks omitted). The judicially created exclusionary rule requires that evidence seized in an unconstitutional search must be suppressed at trial. United States v Leon, 468 US 897, 906; 104 S Ct 3405; 82 L Ed 2d 677 (1984); People v Mungo, 288 Mich App 167, 176; 792 NW2d 763 (2010). "The exclusionary rule ... generally bars the introduction into evidence of materials seized and observations made during an unconstitutional search." People v Hawkins, 468 Mich 488, 498

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