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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
V

UNPUBLISHED May 18, 2010

ANDREW DOUGLAS WOODS, Defendant-Appellee.

No. 290976 Livingston Circuit Court LC No. 08-017474-FH

Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ. PER CURIAM. Plaintiff appeals as of right from the circuit court's order suppressing evidence and dismissing the case. We vacate and remand for further proceedings. This appeal has been decided without oral argument pursuant to MCR 7.214(E). Defendant was bound over for trial on a charge of possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), after a police officer discovered a shoebox containing marijuana, cash, and a list of names in defendant's van parked at an ice arena. In the circuit court, however, defendant challenged the seizure of that evidence on constitutional grounds. The court convened an evidentiary hearing to decide the question. At the hearing, the arresting police officer testified that he went to the ice arena in response to information received from another officer, who indicated that a confidential informant reported that defendant would be selling marijuana there. The officer described finding a group of 20 to 30 young adults in the parking lot, defendant among them. According to the officer, defendant initially stated that he had come to the location in a car someone else had driven. The officer obtained permission to search that vehicle, but found nothing. The officer then called for additional information, and was told that the informant had reported that defendant sold marijuana from a shoebox out of a white van. The officer testified that there was a white van nearby, but that defendant denied that it was his. According to the officer, defendant consented to his searching for keys, upon which the officer found a key whose labeling match that of the van. Defendant then admitted that the key was to the white van. The officer testified that defendant then consented to a search of the van, which turned up the contraband. Defendant testified, not that the officer asked if he might search for a key, but that the officer instead simply reached into defendant's pocket and retrieved it. Defendant further testified that the officer never asked for, and defendant never gave, permission to search the van. -1-

The circuit court resolved the conflicting testimony concerning consent by concluding that defendant did not consent to the search, and on that basis granted the motion to suppress the evidence. Plaintiff moved for reconsideration on the ground that although the question of consent to search had been decided, the question of probable cause to search the van without consent had not. The circuit court observed that the van was, at the time pertinent, not susceptible to being moved and that the police had its key. The trial court concluded that the police could have readily obtained a warrant. The written order that followed denied the motion for reconsideration, reaffirmed the original decision, and dismissed the case, "for the reasons stated on the record." Plaintiff filed a second motion for reconsideration, seeking a ruling that the automobile exception to the search-warrant requirement applied and, thus, that the arresting police officer had authority to search the van without consent. The circuit court denied the motion on the ground that the court rules did not "provide for filing of multiple motions for reconsideration." This appeal followed. We review "de novo a trial court's ultimate decision on a motion to suppress," but review for clear error "the trial court's underlying findings of fact . . . ." People v Beuschlein, 245 Mich App 744, 748; 630 NW2d 921 (2001). On appeal, plaintiff does not challenge the finding below that the search of the van took place without defendant's consent. Instead, plaintiff argues that the circuit court erred in concluding that a warrant was required because the police had the opportunity to obtain one and requests a remand to determine the question of probable cause for that purpose. The federal and state constitutions guarantee the right to be free from unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1,

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