Probable cause for a cell phone search warrant; Particularity; People v Carson; Search warrant for cell phone carrier data; Nexus; Harmless error; Ineffective assistance of counsel; Failure to move to suppress; Failure to object to expert testimony or request a Daubert v Merrell Dow Pharm, Inc hearing; Factual predicate; Trial strategy; Lay opinion testimony; MRE 701; People v Fomby; Whether proposed testimony was hearsay; Cumulative error

The court held that defendant failed to show the admission of evidence obtained pursuant to search warrants for his cell phone and for cell phone carrier data affected his substantial rights. It rejected his ineffective assistance of counsel claims, and found an officer’s testimony about vehicle identification was admissible under MRE 701. While the trial court erred in excluding defendant’s proposed testimony about certain statements as hearsay, the court found the error harmless. Finally, his cumulative error claim failed due to the lack of multiple errors. Thus, it affirmed his convictions of intentional discharge of a firearm from a motor vehicle, intentional discharge of a firearm at a dwelling, FIP of a firearm, FIP of ammunition, and felony-firearm, second offense. He challenged the admission of evidence under two search warrants. The court held that the one for his “cell phone lacked the necessary particularity” while the one for T-Mobile cell phone data was sufficiently particular. It found that the search warrant for the phone was “substantially similar” to the one at issue in Carson. It “did not describe with sufficient particularity the items to be searched.” But the search warrant seeking “T-Mobile cell phone data relative to the telephone number associated with defendant” was supported by an affidavit that the court concluded “was sufficient to withstand constitutional muster.” Not only did “the search warrant identify the particular categories to be searched,” it also contained “a temporal limitation for the search.” However, as to the nexus requirement, both “affidavits failed to contain specific facts that connected information potentially stored on defendant’s cell phone to the shooting. Accordingly, a reasonably cautious person could not have concluded that there was a substantial basis for finding a fair probability that evidence of the crime would be found on [his] cell phone or in the carrier’s data.” Nonetheless, alternative (and perhaps even more compelling) evidence was presented at trial “that defendant was the individual who drove by the victim’s home and shot into the occupied dwelling.” Given that evidence, the information obtained pursuant to the search warrants “was not outcome-determinative.”