Motion to suppress; Search warrant; Fourth Amendment; Probable cause; Confidential informant; MCL 780.653(b); Independent investigation; People v Waclawski; Franks v Delaware hearing; Material omission; People v Mullen; Sentencing; OV 14; Leadership in multiple offender situation; MCL 777.44(1)(a); People v Dickinson; Acquitted conduct; People v Beck; Rational-jury standard; People v Brown; Possession with intent to deliver; MCL 333.7401; People v Wells; Simple possession; MCL 333.7403; Resentencing; Guidelines scoring error; People v Francisco

The court held that the search warrant affidavit established probable cause and did not warrant a Franks hearing, but resentencing was required because the trial court relied on acquitted conduct to score OV 14. Defendant was convicted of meth and amphetamine possession after police executed a warrant at his mother’s apartment. The trial court assessed 10 points for OV 14 at sentencing, raising his guidelines range. On appeal, the court first held that the affidavit supported probable cause because it identified a reliable informant whose information had proven “current and accurate,” linked defendant to Grandview Towers through Secretary of State records and surveillance, and described two controlled buys after which officers saw him return to the complex. It also held that the alleged omission about Officer S’s visit to the apartment was not material under Franks because the affidavit established probable cause that evidence would be found in the apartment whether or not that information was added. The court reasoned the affidavit “did not need to establish that defendant was present there.” But the court held that OV 14 was improperly scored. The jury acquitted defendant of possession with intent to deliver, and under Beck and Brown, the trial court could not rely on intent to deliver or a supposed delivery after the jury rejected that conduct. The trial court did exactly that, stating “there was a delivery, even though the jury disagreed,” when finding defendant was a leader in a multiple-offender situation. Because correcting OV 14 changed the minimum guidelines range, defendant was entitled to resentencing under Francisco. Affirmed in part, vacated in part, and remanded.