Opinion
SC: 158578 COA: 338400
12-13-2019
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Brian MCJUNKIN, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the August 28, 2018 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE Part II of the judgment of the Court of Appeals, and we REMAND this case to the Calhoun Circuit Court for an evidentiary hearing to determine whether the consent or the plain view exceptions to the warrant requirement justify the warrantless search and seizure in this case. Specifically, the court shall determine: (1) whether, based on an assessment of the totality of the circumstances, consent was freely and voluntarily given, see People v. Borchard-Ruhland , 460 Mich. 278, 294, 597 N.W.2d 1 (1999) ; (2) whether an objectively reasonable officer would conclude that the homeowner had actual or apparent authority to consent to a search of the vehicle that the defendant had driven into the garage, see People v. Mead , 503 Mich. 205, 216-219, 931 N.W.2d 557 (2019) ; and (3) whether, assuming the officers were lawfully in the garage, the items seized from the vehicle were visible and their incriminating character was immediately apparent, see People v. Champion , 452 Mich. 92, 101, 549 N.W.2d 849 (1996). In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court.
We do not retain jurisdiction.