People of Michigan v. Damian Mathew Massa ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 12, 2016
Plaintiff-Appellee,
v No. 326215
Oakland Circuit Court
DAMIAN MATHEW MASSA, LC No. 2013-247283-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and SAAD and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of receiving and concealing stolen
property valued at $20,000 or more, MCL 750.535(2)(a), and filing a false tax return, MCL
205.27(1)(a). 1 He was sentenced to one year in jail, with one day of jail credit, and five years of
probation for both convictions. We affirm.
I. FACTUAL BACKGROUND
This case arises from defendant’s ownership and operation of RTR Sales, Inc., a
company through which he bought and sold plastic knockdown containers.2 Most relevant to
this appeal, defendant’s receiving and concealing stolen property conviction arises from his
possession of more than 1,000 of those containers owned by General Motors (“GM”).
All GM containers are manufactured with a stamp or “embossment” of a GM logo that is
“molded” onto the base. Most GM containers are blue and gray, although some are other colors.
At trial, various employees or representatives of GM and its suppliers, as well as other witnesses
involved in the container industry, testified that GM never sold its plastic knockdown containers,
that GM containers remained “active [GM] assets” used in the transportation of parts to and from
GM assembly plants, and that GM never relinquished ownership of the containers. Accordingly,
if GM became aware that containers were in the possession of another company, GM made an
1
Defendant was acquitted of 10 other offenses.
2
Plastic knockdown containers are collapsible, rectangular-shaped shipping containers that come
in a variety of colors and sizes depending on their intended use.
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effort to retrieve them. Despite GM’s efforts, however, companies, including GM suppliers, and
individuals sometimes sold GM containers at public actions or through private sales even though
such sales were not authorized. This created a “secondary market” for GM containers that was
“offensive to [GM].”
In 2011 and 2012, the Livonia Police Department and other local police departments
discovered that stolen knockdown containers were being acquired, purchased, and sold by
various individuals, including, among others, Ed Spratt, Jim Tabor, and Norm Syrjala. As the
police further investigated the stolen knockdown container market, they made multiple arrests.
Most notably, in April 2012, Syrjala was arrested by Livonia police officers as he was on his
way to deliver stolen containers to defendant’s warehouse on Crestview Road in Farmington
Hills, Michigan.
In May 2012, with the assistance of Syrjala and Larry Anderson, who was responsible for
“[c]ontainer repair, warehousing and expendable claims” for GM, the Livonia Police Department
performed multiple stings using containers provided by GM, which had been marked by Livonia
Police Department Sergeant Michael Mockeridge. During the May 7, 2012 sting, Michael
Bertha, an undercover Livonia police officer, posed as one of Syrjala’s employees while Syrjala
delivered GM containers, with an embossed GM logo, to defendant’s Crestview warehouse.
When Bertha and Syrjala arrived, David Wendler, defendant’s warehouse manager, retrieved the
containers from the truck. Wendler paid Syrjala for the GM containers by filling in a blank
check, which had been signed and dated by defendant on April 23, 2014. Bertha and Syrjala
executed similar controlled deliveries of GM containers on May 21, 2012.
On May 23, 2012, the Livonia police executed a search warrant at defendant’s
Farmington Hills warehouses (located at 24740 Crestview and 24796 Crestview), seizing 52 of
the 190 shipping containers obtained from GM and marked by Detective Mockeridge and
hundreds of other containers that belonged to GM and that were in defendant’s possession
without GM’s permission. Later that day, a search warrant was executed at defendant’s
residence, at which time various items were seized and defendant was arrested.
II. PROBABLE CAUSE TO SEARCH DEFENDANT’S RESIDENCE
Defendant first argues that the trial court erred in denying his motion to suppress the
evidence seized during the search of his residence because the search warrant was not supported
by probable cause. We disagree.
A. STANDARD OF REVIEW
“We review de novo a trial court’s ruling on a motion to suppress evidence. The trial
court’s factual findings are reviewed for clear error, and the underlying constitutional issues,
including whether a Fourth Amendment violation occurred, are reviewed de novo.” People v
Henry (After Remand), 305 Mich. App. 127, 137; 854 NW2d 114 (2014). However, appellate
review of a decision regarding whether probable cause existed to issue a search warrant “requires
the reviewing court to ask only whether a reasonably cautious person could have concluded that
there was a ‘substantial basis’ for the finding of probable cause.” People v Russo, 439 Mich. 584,
603; 487 NW2d 698 (1992). “[A] search warrant and the underlying affidavit are to be read in a
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common-sense and realistic manner. Affording deference to the magistrate’s decision simply
requires that reviewing courts insure that there is a substantial basis for the magistrate’s
conclusion that there is a fair probability that contraband or evidence of a crime will be found in
a particular place.” Id. at 604 (quotation marks and citation omitted); see also People v Martin,
271 Mich. App. 280, 297; 721 NW2d 815 (2006), aff’d 482 Mich. 851 (2008).
B. ANALYSIS
A warrant may not issue unless probable cause exists to justify the intended search. US
Const, Amend IV; Const 1963, art 1, § 11; MCL 780.651; People v Brown, 297 Mich. App. 670,
675; 825 NW2d 91 (2012). “Probable cause to issue a search warrant exists where there is a
‘substantial basis’ for inferring a ‘fair probability’ that contraband or evidence of a crime will be
found in a particular place,” People v Kazmierczak, 461 Mich. 411, 417-418; 605 NW2d 667
(2000), or “when the facts and circumstances would allow a reasonable person to believe that the
evidence of a crime or contraband sought is in the stated place,” People v Waclawski, 286 Mich
App 634, 698; 780 NW2d 321 (2009).
Probable cause must be based on facts presented to the issuing magistrate by oath
or affirmation. When probable cause is averred in an affidavit, the affidavit must
contain facts within the knowledge of the affiant rather than mere conclusions or
beliefs. The affiant may not draw his or her own inferences, but must state the
matters that justify the drawing of inferences. However, the affiant’s experience
is relevant to the establishment of probable cause. [Id. (citations omitted).]
Defendant’s primary argument is that the facts stated in the affidavit did not establish a
substantial basis for inferring any probability that evidence of a crime would be found at his
residence. See Kazmierczak, 461 Mich. at 417-418. Contrary to defendant’s characterization of
the affidavit, its sworn facts would allow a reasonable person to believe that evidence of a crime
would be found at defendant’s residence. See Waclawski, 286 Mich. App. at 698. The affidavit
stated that Syrjala told Sgt. Mockeridge, the affiant, that (1) defendant had “partnered up” with
Tabor, who was selling stolen containers, (2) stolen containers were being delivered to
warehouses on Crestview Road, which were operated by defendant and Tabor, (3) defendant
paid Syrjala $10 under the company name “Rags to Riches,” in addition to the $40 paid by
Tabor, for each plastic container delivered to the Crestview warehouses, each of which was
stolen based on other facts stated in the affidavit, and (4) defendant often left several signed and
dated checks which listed the “Rags to Riches” business name and his residential address (812
Meridian Road, Mason, Michigan 48854) with Wendler, which Wendler later used to pay for
stolen container purchases. The affidavit also stated that after a controlled delivery, Syrjala
produced a check drawn from an account under the company name “Rags to Riches” at
defendant’s residential address. These facts provide a substantial basis from which a reasonable
person could believe that evidence concerning the purchase and possession of stolen containers
would be found at defendant’s residential address. See Kazmierczak, 461 Mich. at 417-418;
Waclawski, 286 Mich. App. at 698. The existence of probable cause is not undermined by the fact
that the affidavit indicates that defendant also organized business deals with legitimate
businesses. Additionally, contrary to defendant’s argument on appeal, the affidavit did not
consist of unsupported conclusions or beliefs solely based on Sgt. Mockeridge’s experience. See
Waclawski, 286 Mich. App. at 698.
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Defendant contends that the affidavit failed to establish that he engaged in criminal
activity or had knowledge of criminal activity. Rather, he argues that the allegations in the
affidavit only suggest that he was engaged in legal business transactions with legitimate
businesses. Defendant fails to recognize that the relevant standard only requires that the affidavit
establish probable cause to believe that evidence of a crime will be found in a particular place,
not that a particular person is implicated in the criminal activity under investigation. See
Kazmierczak, 461 Mich. at 417-418; Waclawski, 286 Mich. App. at 698. See also People v
Johnson, 431 Mich. 683, 689-690; 431 NW2d 825 (1988) (discussing the different factual
circumstances that must be shown to establish probable cause for a search and probable cause to
arrest an individual). Nevertheless, contrary to defendant’s portrayal of the affidavit, a
reasonable person could infer from the facts in the affidavit that defendant was involved in the
acquisition of stolen plastic containers through Syrjala and other suppliers, especially given the
description of defendant’s “partner[ship] . . . with Tabor,” who engaged in the illegal acquisition
of containers. These facts further increased the probability that evidence of a crime would be
found at defendant’s residence, where his business was located.
Finally, defendant argues, “Syrjala’s credibility is, at best, highly questionable, and
unsupported by any additional evidence or objectively assessable facts as to most of his
allegations, short of the controlled delivery,” which did not involve stolen containers, and which
occurred while defendant was absent from the warehouse. However, affirmative allegations
from which the magistrate could conclude that Syrjala was credible and that he provided reliable
information were not required because Syrjala was not an unnamed informant. See MCL
780.653(b) (codifying the requirements that must be fulfilled before a warrant may be issued
based on tips from an unidentified informant). Instead, because Syrjala was a named informant,
the affidavit could be based upon information that Sgt. Mockeridge received from Syrjala as long
as the affidavit included “affirmative allegations from which the magistrate [could] conclude that
[Syrjala] spoke with personal knowledge of the information.” MCL 780.653(a).3 “Personal
knowledge can be inferred from the stated facts.” Martin, 271 Mich. App. at 302.
It is overwhelmingly apparent from the content of the affidavit that Syrjala had personal
knowledge of the stated facts, especially given Syrjala’s description of his own involvement in
the acquisition of stolen containers and his direct involvement with defendant’s business.
Further, the extensive independent investigation performed by the police—which was described
in detail by Sgt. Mockeridge in the affidavit and which, among other things, included three
controlled deliveries to defendant’s warehouse—corroborated much of the information provided
by Syrjala. See Waclawski, 286 Mich. App. at 699; People v Harris, 191 Mich. App. 422, 425-
426; 479 NW2d 6 (1991). “Michigan courts also consider identified citizens and police officers
to be presumptively reliable.” People v Powell, 201 Mich. App. 516, 523; 506 NW2d 894 (1993).
Accordingly, the magistrate did not err in issuing the search warrant despite Syrjala’s purported
lack of credibility or reliability.
3
MCL 780.653 was amended by 2014 PA 383, effective December 18, 2014. The amendments
did not affect the substance of the statute.
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Thus, especially given the great deference that we must afford to a magistrate’s probable
cause determination, People v Keller, 479 Mich. 467, 477; 739 NW2d 505 (2007), the trial court
did not err in denying defendant’s motion to suppress because the magistrate properly concluded
that probable cause existed to issue a search warrant for defendant’s residential address, see
Russo, 439 Mich. at 603.4
III. SUFFICIENCY OF THE EVIDENCE
Next, defendant argues that insufficient evidence was presented at trial to support his
receiving and concealing conviction stolen property conviction. We disagree.
A. STANDARD OF REVIEW
This Court reviews a challenge to the sufficiency of the evidence de novo. People v
Henderson, 306 Mich. App. 1, 8-9; 854 NW2d 234 (2014). “We examine the evidence in a light
most favorable to the prosecution, resolving all evidentiary conflicts in its favor, and determine
whether a rational trier of fact could have found that the essential elements of the crime were
proved beyond reasonable doubt.” People v Dunigan, 299 Mich. App. 579, 582; 831 NW2d 243
(2013) (quotation marks and citation omitted). “Circumstantial evidence and reasonable
inferences arising [from the evidence] may constitute proof of the elements of [a]
crime.” People v Bennett, 290 Mich. App. 465, 472; 802 NW2d 627 (2010). This Court’s review
is deferential, as “[w]hen assessing a challenge to the sufficiency of evidence, the trier of fact,
not the appellate court, determines what inferences may be fairly drawn from the evidence and
the weight to be accorded those inferences.” People v Malone, 287 Mich. App. 648, 654; 792
NW2d 7 (2010), overruled in part on other grounds by People v Jackson, 498 Mich. 246, 268 n 9
(2015); see also People v Nowack, 462 Mich. 392, 400; 614 NW2d 78 (2000) (“The standard of
review is deferential: a reviewing court is required to draw all reasonable inferences and make
credibility choices in support of the jury verdict.”). Thus, in reviewing a challenge to the
sufficiency of the evidence, we do not interfere with the fact-finder’s determinations regarding
the weight and credibility of the witnesses or the evidence. Dunigan, 299 Mich. App. at 582.
B. ANALYSIS
4
Even if the affidavit failed to establish probable cause, the good-faith exception to the
exclusionary rule would apply in this case. See United States v Leon, 468 U.S. 897; 104 S. Ct.
3405; 82 L. Ed. 2d 677 (1994); People v Goldston, 470 Mich. 523, 528-530, 535-541; 682 NW2d
479 (2004). There is no indication that the magistrate wholly abandoned his judicial role, see id.
at 531, or that Sgt. Mockeridge was dishonest or reckless in preparing his affidavit, see Leon,
468 U.S. at 926. Additionally, the police officers’ actions were objectively reasonable, as they
reasonably relied, in good faith, on the search warrant. See Goldston, 470 Mich. at 530-531, 542.
The affidavit was not “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Goldston, 470 Mich. at 528 (quotation marks and citation
omitted).
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To prove the offense of receiving and concealing stolen property valued at $20,000 or
more, the prosecution must establish the following elements:
(1) the property was stolen; (2) the value of the property met the statutory
requirement; (3) defendant received, possessed, or concealed the property with
knowledge that the property was stolen; (4) the identity of the property as being
that previously stolen; and (5) the guilty actual or constructive knowledge of the
defendant that the property received or concealed was stolen. [People v Pratt,
254 Mich. App. 425, 427; 656 NW2d 866 (2002).]
The basis of defendant’s conviction was the seizure of hundreds of GM knockdown
containers from his warehouse on May 23, 2012.5 Defendant argues that there was no evidence
that those containers were stolen because (1) 52 of the containers recovered were provided by
GM and (2) there was no evidence that the rest of the containers were delivered to the warehouse
by Spratt, Syrjala, or Tabor. Contrary to defendant’s claim, numerous witnesses testified that
GM containers, including those seized from defendant’s warehouse, are “active [GM] assets”;
that they remain the property of GM; that GM never relinquishes control of its containers, even if
they are difficult to control; that GM supplies all of the containers utilized by its suppliers; that
GM does not sell its containers on the open market; and that GM employs personnel who
“aggressively” attempt to locate and recover containers from scrap companies or other entities.
Although evidence was presented to the contrary—which, as defendant emphasizes, indicated,
inter alia, that (1) GM has sold or consigned obsolete or damaged containers to scrap companies
or suppliers, (2) GM has auctioned off automotive parts inside GM containers, (3) tier one or tier
two suppliers may directly purchase GM containers and subsequently sell them on the open
market, and (4) GM containers have been sold by other companies on the open market6—it was
the jury’s role to determine the weight and credibility of the witnesses’ testimony. Dunigan, 299
Mich. App. at 582. Further, we must resolve all evidentiary conflicts in favor of the prosecution.
Id. Thus, there was sufficient evidence from which a reasonable jury could conclude that the
GM containers in defendant’s possession were stolen. See Pratt, 254 Mich. App. at 427.
Next, defendant disagrees that he received, possessed, or concealed the GM containers.
Although he argues that there was no evidence that he purchased any containers himself, this
assertion is undermined by his own testimony at trial regarding his container deals and
purchases. The evidence overwhelmingly established that Wardner worked on defendant’s
behalf to accept shipments of containers for RTR Sales, the company owned by defendant.
Likewise, the extensive testimony regarding the container acquisition and payment process
utilized by defendant’s company, including defendant’s own testimony, clearly demonstrated
5
Defendant does not challenge whether the value of the property seized from the warehouse met
the statutory requirement. See Pratt, 254 Mich. App. 427. Nevertheless, Anderson’s testimony
provided evidence from which the jury could conclude beyond a reasonable doubt that the
containers seized were valued at more than $20,000.
6
It is noteworthy that Swansey testified that the amount of effort that GM would invest in
recovering containers depended on the quantity in a company’s or an individual’s possession.
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that defendant, as the owner of RTR Sales, directly purchased and possessed GM containers.
Wendler also testified that defendant was the one who established the terms of the container
deals and payments.
Furthermore, although defendant was often absent from the warehouse when containers
were delivered, there is no dispute that Wardner was required to inform defendant of the specific
inventory received in each shipment, the condition of the containers, who delivered them, and
the services performed on each container in order to receive payment for his services. Likewise,
the documentation that Wardner submitted to defendant following each delivery listed the types
of containers received, including blue and gray containers, and the testimony established that
blue and gray containers were GM containers. Additionally, Wardner testified that he would call
defendant whenever a load of containers arrived, and Wardner would specifically inform
defendant of any GM boxes that were delivered or shipped. More so, in defendant’s first
statement to Sgt. Mockeridge, which he confirmed was accurate, he stated that he was aware that
his warehouse contained GM containers.
Despite defendant’s testimony, there was significant evidence from which the jury could
infer that defendant attempted to conceal or minimize the fact that he routinely purchased
numerous GM containers. Wendler testified that defendant asked him to store the blue and gray
containers behind the mixed color containers so that “they weren’t really out in the open.”
Defendant explained to Wardner that he wanted to make sure that the blue and gray containers
were not in plain view so that no one would ask any questions about them. Defendant also
instructed Wendler to intermix GM containers with containers of other colors so that it would not
appear that “so many” GM containers were in a certain area, stating that he did not want all of
the GM containers in one stack. Additionally, unless a container was shipped to RTR Sales
specifically for repair, all GM logos were removed. Although defendant denied at trial that he
asked Wendler to hide the containers, he emphasized that GM containers were frequently visible
outside the warehouse, and he stated that he had legitimate reasons for removing the GM logos,
we must view the evidence in the light most favorable to the prosecution. See Dunigan, 299
Mich. App. at 582. We also must draw all reasonable inferences and make credibility
determinations in support of the jury’s verdict. See Nowack, 462 Mich. at 399-400. Although
defendant emphasized that he informed James Lalley, the GM investigator, in 2011 that he sold
GM containers, it is apparent from Lalley’s testimony and other testimony regarding defendant’s
actions before and after his interactions with the GM investigator that defendant intentionally
minimized and concealed the extent to which he purchased and sold GM containers—and the
extent to which he was aware of his inventory—during his conversations with Lalley.
Finally, defendant contends that there is no evidence that he had actual or constructive
knowledge that the containers were stolen. “Guilty knowledge generally cannot be proved by
direct evidence; by its very nature, it must usually be inferred from all of the circumstances of
the case.” People v Salata, 79 Mich. App. 415, 421; 262 NW2d 844 (1977).
Factors which have been held to support the inference of guilty knowledge
include: (1) the defendant’s possession of the stolen article shortly after it was
stolen, (2) change in the condition of the stolen article, (3) alteration of
identifying marks, serial numbers, or registration, (4) a purchase price out of line
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with the article’s value, and (5) lack of any reasonable explanation from the
defendant for his possession of the item. [Id. at 421-422.]
Here, the prosecution proffered direct and circumstantial evidence from which the jury could
find that this element was proven beyond a reasonable doubt.
Previously, defendant was a salesman at Arca, and his largest customer was GM. Former
and current GM employees, who worked directly with defendant while he was the salesman
managing the GM account, confirmed that defendant was aware of GM’s policy that it does not
sell its containers. They explained that GM representatives would inform salesmen of this policy
and provide a “containerization booklet” which also stated this policy. Likewise, Swansey
testified that defendant had been “keeping an eye out, just like all of us would,” “for . . .
containers being where they shouldn’t be,” and that defendant had notified Swansey in the past
when he learned that an entity improperly possessed GM containers. Based on information from
defendant, Swansey “would send somebody . . . to check [the containers] out and get them back
if they were [GM’s].” Although defendant claimed that he only provided such information to
Swansey in 1997 and 1998, and that the market began to change in 2000 and subsequent years,
resulting in the development of a multi-million dollar container market, the jury could reasonably
infer from this evidence that defendant was aware that GM did not sell its containers and retained
ownership of them. See Nowack, 462 Mich. at 400; Bennett, 290 Mich. App. at 472. Such a
conclusion is further supported by the testimony of multiple witnesses that defendant minimized
his involvement with GM containers when he spoke with a GM representative and briefly
stopped purchasing and selling such containers after he was expressly informed by the
representative that he was not permitted to sell them. Further, Tabor testified that when GM
containers were delivered, defendant would “get them out right away so the warehouse was
never too stockpiled with them.”
In addition, Wardner expressly testified that he was aware that GM containers were
stolen when they arrived at the warehouse. Wendler had this knowledge based on his prior work
with Thrifty Pallet, another container company, when a GM investigator confiscated $400 or
$500 worth of GM containers. At the time, the investigator explained that (1) Thrifty Pallet was
not authorized to have those containers because they were not for sale, and (2) if the company
did have GM containers in its possession, they were stolen. After the confiscation, Wendler told
defendant about the incident. In response, defendant told Wendler that “everything would have
been all right” if they had “gr[ound] off the GM logo[.]” Defendant’s response is significant in
that defendant asked Wardner to remove the markings of all GM containers delivered to
defendant’s warehouse. Although defendant explained that this business practice was for the
convenience of their customers, the fact that defendant asked Wendler to change the condition of
the containers and remove any identifying marks supports an inference of guilty knowledge,
especially when considered in conjunction with defendant’s previous conversation with Wendler.
See Salata, 79 Mich. App. at 421-422.
Although defendant repeatedly denied at trial that he knew that the containers were
stolen, again, we are required to resolve all evidentiary conflicts, and make all credibility
determinations, in support of the jury’s verdict. See Nowack, 462 Mich. at 400; Dunigan, 299
Mich. App. at 582. The prosecution presented overwhelming direct and circumstantial evidence
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from which the jury could conclude that defendant knew that the containers were stolen. See
Nowack, 462 Mich. at 399-400; Bennett, 290 Mich. App. at 472.
Thus, the evidence presented at trial was sufficient to support defendant’s conviction.
IV. CONCLUSION
The trial court properly denied defendant’s motion to suppress, as the search warrant for
defendant’s residence was supported by probable cause. Additionally, defendant’s conviction
was supported by sufficient evidence.
Affirmed.
/s/ Michael J. Riordan
/s/ Henry William Saad
/s/ Michael J. Kelly
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