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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT ALLEN BAKER, Defendant-Appellant.

UNPUBLISHED February 23, 2010

No. 289056 Missaukee Circuit Court LC No. 08-002194-FH

Before: Donofrio, P.J., and Meter and Murray, JJ. PER CURIAM. Defendant appeals as of right from his convictions by a jury of delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); possession of less than 25 grams of heroin, MCL 333.7403(2)(a)(v); possession with intent to deliver marijuana, MCL 333.7401(2)(d); possession of marijuana, MCL 333.7304(2)(d); maintaining a drug house, MCL 333.7405(1)(d); felon in possession of a firearm, MCL 750.224f; and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced him, as a fourth-offense habitual offender, MCL 769.12, to five to 25 years in prison for delivery of heroin, three years and 10 months to 15 years in prison for possession of heroin, four to 15 years in prison for possession with intent to deliver marijuana, 315 days in jail for possession of marijuana, 10 months to 15 years in prison for maintaining a drug house, 3 to 25 years in prison for felon-in-possession, and two years in prison for felony-firearm. We vacate defendant's conviction for possession of marijuana1 but affirm in all other respects. This case arose from a controlled buy that took place with a confidential informant (CI). The CI obtained suspected heroin and ecstasy from defendant. The police then obtained a search warrant for defendant's residence, where they found marijuana. On appeal, defendant first argues that the trial court erroneously failed to strike certain portions of the affidavit supporting the search warrant; he argues that the portions in question were factually inaccurate. We review for clear error a trial court's findings of fact at a suppression hearing. People v Custer, 248 Mich App 552, 558; 640 NW2d 576 (2001).

1

We note that defendant has already served the sentence for this offense.

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At the suppression hearing, defendant challenged the inclusion of the following sentence from paragraph 6 of the affidavit: "When conducting the controlled purchase, the Confidential Informant or Under Cover Officer are under constant surveillance by detectives from the Traverse Narcotics Team." The court declined to strike this sentence, stating: The [c]ourt has to review

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