People of Michigan v. Michael Brian McJunkin ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
December 13, 2019 Bridget M. McCormack,
Chief Justice
158578 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 158578
COA: 338400
Calhoun CC: 2016-001379-FH
MICHAEL BRIAN McJUNKIN,
Defendant-Appellant.
_________________________________________/
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 (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 (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 (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.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 13, 2019
p1210
Clerk