            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    January 29, 2019
               Plaintiff-Appellee,

v                                                                   No. 340327
                                                                    Wayne Circuit Court
KEVIN LYNN MCDONALD,                                                LC No. 16-004612-01-FH

               Defendant-Appellant.


Before: MURRAY, C.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of carrying a concealed weapon, MCL
750.227. He appeals, challenging the trial court’s denial of his motion to suppress evidence. For
the reasons stated below, we affirm.

         This case arises from a traffic stop effectuated by Michigan State Police Trooper Timothy
Madison. Madison was on routine patrol on Grand River Avenue. Grand River Avenue has
multiple lanes in the same direction for traffic. Madison testified at the suppression hearing that
he was travelling northbound on Grand River Avenue when he saw defendant travelling
southbound in the left lane approximately a quarter to a half mile ahead. Madison further
testified that he observed that the right lane was available for defendant to use. After passing
defendant, Madison watched defendant continue to drive in the left lane. Madison then made a
U-turn and drove behind defendant in the left lane, although he did not remember if defendant
had his turn signal activated. Madison further testified that when he pulled defendant over, he
did not believe that there was any traffic and that there were only a few cars on the road.

        Madison approached defendant’s vehicle and asked if defendant had any drugs or
weapons in the vehicle. Defendant answered that he had a gun in the trunk, but when pressed
further, he admitted the gun was under a child’s car seat in the back seat. Madison asked if
defendant had a concealed pistol license and defendant admitted he did not. Madison detained
defendant in handcuffs outside the car and then searched defendant’s vehicle. The pistol was
found in the back seat, and a fully loaded magazine was found in the glove compartment.
        Defendant filed a motion to suppress and argued that the evidence of the pistol should be
suppressed as fruit of the poisonous tree because the traffic stop was illegal. At the evidentiary
hearing on the motion to suppress, defendant testified that he drove southbound on Grand River
Avenue in the right lane until he reached Ohio Street. At that point, according to his testimony,
he moved into the left lane to avoid a dip in the road and when he stopped at the next traffic light
two cars pulled next to him in the right lane. Defendant testified that he wanted to turn right at
the upcoming intersection, so after the light turned green he activated his right turn signal and let
the two cars in the right lane pull ahead of him. According to defendant, it was at this moment
that Trooper Madison turned right onto Grand River Avenue, and approximately three seconds
later he made a U-turn to pull over defendant. Madison testified as stated above.

        The trial court found that Madison had probable cause to stop defendant for driving in the
left lane when the right lane was available, in violation of MCL 257.634(2). The trial court
noted that there appeared to be a question of fact regarding the amount of traffic on the road at
the time of the stop. However, the court determined that it was undisputed that defendant was
driving in the left-hand lane for an extended period of time and therefore Madison had probable
cause to believe that defendant was violating MCL 257.634(2). Accordingly, the trial court
denied defendant’s motion to suppress.

       Defendant argues that the traffic stop was not supported by reasonable suspicion, and
therefore, the evidence of the pistol should be suppressed. We disagree.

        We review a trial court’s factual findings in suppression hearing for clear error, which
occurs when the Court is “left with a definite and firm conviction that a mistake was made.”
People v Lewis, 251 Mich App 58, 67; 649 NW2d 792 (2002). But “the lower court’s ultimate
ruling with regard to the motion to suppress is reviewed de novo because the application of
constitutional standards regarding searches and seizures to undisputed facts is entitled to less
deference.” Id. at 67-68.

        The stop of defendant’s vehicle implicated his right to be free from unreasonable
searches and seizures, which is guaranteed by both the United States and Michigan
Constitutions. US Const, Am IV; Const 1963, art 1, § 11; People v Barbarich, 291 Mich App
468, 472; 807 NW2d 56 (2011). “A traffic stop is justified if the officer has an articulable and
reasonable suspicion that a vehicle or one of its occupants is subject to seizure for a violation of
law. This includes a violation of traffic law.” People v Simmons, 316 Mich App 322, 326; 894
NW2d 86 (2016) (quotation marks and citations omitted). “[W]hether there was reasonable
suspicion to justify a stop must be made on a case-by-case basis, evaluated under the totality of
the circumstances, and based on common sense.” People v Dillon, 296 Mich App 506, 508; 822
NW2d 611 (2012).

       Section 634 of the Michigan Vehicle Code, MCL 257.1 et seq., provides in relevant part:

               (2) Upon a roadway having 2 or more lanes for travel in 1 direction, the
       driver of a vehicle shall drive the vehicle in the extreme right-hand lane available
       for travel except as otherwise provided in this section. However, the driver of a
       vehicle may drive the vehicle in any lane lawfully available to traffic moving in
       the same direction of travel when the lanes are occupied by vehicles moving in


                                                -2-
       substantially continuous lanes of traffic and in any left-hand lane lawfully
       available to traffic moving in the same direction of travel for a reasonable
       distance before making a left turn. [MCL 257.634(2).]

        Defendant argues that Trooper Madison’s testimony was insufficient to support the trial
court’s conclusion that there was reasonable suspicion to initiate the traffic stop. Defendant
contends that his testimony that there were two vehicles in the right lane ahead of him
contradicts Madison’s testimony that there was no traffic preventing defendant from merging
into the right lane. The trial court did not expressly find Madison’s testimony more credible than
defendant’s. Instead, the court rested its ruling on the undisputed fact that defendant traveled in
the left-hand lane for an extended period of time, the implication being that at some point
defendant would have likely had an opportunity to move to the right-hand lane. More to the
point, defendant’s continuous presence in the left-hand lane gave Madison reasonable suspicion
to believe that defendant was able to move to the right-hand lane yet chose not to.

        Whether defendant actually violated MCL 257.634(2) is not controlling. See People v
Fisher, 463 Mich 881, 882 (2000) (CORRIGAN, J., concurring) (“The dispositive question . . . is
not whether an actual violation occurred, but whether the officer had a reasonable suspicion that
a violation may have occurred.” ). Thus, the trial court did not need to resolve defendant’s and
Madison’s conflicting testimony as to whether defendant could have moved to the right-hand
lane. Given defendant’s prolonged travel in the left-hand lane, Madison had an articulable and
reasonable suspicion that defendant was violating the law. Indeed, Madison was able to make a
U-turn on Grand River Avenue and then pull defendant over to the right side of the road. Given
those circumstances, the trial court did not err in denying defendant’s motion to suppress.

       Affirmed.



                                                            /s/ Christopher M. Murray
                                                            /s/ Deborah A. Servitto
                                                            /s/ Douglas B. Shapiro




                                                -3-
