STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 16, 2017
Plaintiff-Appellee,
v No. 329150
Manistee Circuit Court
BEVERLY ANN KOCEVAR, LC No. 15-004470-FH
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.
PER CURIAM.
A Michigan State Police trooper stopped defendant Beverly Kocevar’s vehicle after
observing the front passenger tire cross the right fog line. The trooper expeditiously established
that Kocevar was lost and not impaired, but nevertheless questioned Kocevar regarding whether
“she had anything in the car that she shouldn’t have.” After the trooper threatened to bring a
“drug dog” to the scene, Kocevar consented to a search. The trooper found a pill bottle
containing methadone that did not belong to Kocevar.
Kocevar moved to suppress the methadone, contending that her consent to the search was
involuntary. The trial court agreed, but ruled that the inevitable discovery doctrine “justifie[d]
the search.” The court rested this ruling on Kocevar’s admission that her medical marijuana (for
which she had a card) was in the back seat rather than in the trunk. A jury convicted Kocevar of
unlawful possession of less than 25 grams of a controlled substance (methadone), MCL
333.7403(2)(a)(v).
Kocevar now challenges the seizure on Fourth Amendment grounds. To satisfy the
inevitable discovery doctrine, the prosecution must demonstrate that the trooper would have
found the methadone by lawful means. The prosecution cannot sustain that burden here, as the
trooper unconstitutionally prolonged Kocevar’s detention to ferret out evidence of criminal
wrongdoing. Authority for Kocevar’s seizure expired when the trooper completed the traffic
stop mission—well before the prolonged questioning about what Kocevar had in her car.
Because the trooper lacked any articulable suspicion of criminal activity to extend the stop
absent Kocevar’s tainted consent, we reverse Kocevar’s conviction.
-1-
I. FACTS AND PROCEEDINGS
While on routine patrol and heading westbound on M-55, Michigan State Police Trooper
Kathleen Wicker observed the front passenger tire of Kocevar’s eastbound vehicle momentarily
cross the fog line.1 Wicker turned around and effectuated a traffic stop. At an evidentiary
hearing she explained the reason for the stop: “Based on my training and experience, when
people cross the fog line or don’t keep within their lane of travel, it indicates they could be
intoxicated.” Wicker admitted that nothing other than the brief fog line incursion had drawn her
attention to Kocevar’s vehicle. Trooper Wicker exited her car, explained the reason for the stop,
and obtained Kocevar’s license and registration. Kocevar “immediately” volunteered that “she
was lost, that she was trying to take the back way from Interlochen to the Hoxeyville Music
Festival.” Wicker quizzed Kocevar about what she might have in her car:
A. I began to tell her the way to get there, but I also asked, as I typically
do, if she had anything in the car that she shouldn’t have.
Q. Why do you typically ask that question?
A. I ask that to - - some people will tell me I’ve got a bottle of wine or
something in the vehicle. Sometimes it’s no, I don’t think so. You can gauge
someone’s response, their truthfulness.
Kocevar denied having anything in the vehicle other than her six-year-old daughter.
Wicker brought Kocevar’s driver’s license to her patrol car and ran the information through the
“in-car computer.” The computer revealed that Kocevar had been convicted of a drug offense 11
years earlier, and had no outstanding warrants. Wicker found this information significant, as (in
her words): “somebody with a prior drug crime might have more drugs with them.” Wicker’s
testimony continued:
Q. And with this knowledge, what was your next action?
A. I returned to the vehicle and I asked her if she was sure that she didn’t
have anything in the vehicle she should not have.
Q. Did she respond to you in the same manner or was it different this
time?
A. I don’t exactly remember how she responded, but her response made
me think that maybe there was something.
After refreshing her memory of the stop with her report, Trooper Wicker recounted:
1
A fog line marks the right edge of the drivable portion of a divided road.
-2-
A. When I asked her if she had anything in the car that she shouldn’t have,
she again replied no. I asked her if I could search it. She responded by asking if I
needed a search warrant.
Q. And what was your response to her inquiry?
A. I said I didn’t need a search warrant if she gave me consent to search.
According to Kocevar, Wicker declared “she could get a dog,” which Kocevar interpreted
as: “they were going to search my car regardless of consent.” Wicker recalled that after the
conversation turned to a search of the car, Kocevar revealed that she possessed medical
marijuana and a valid medical marijuana card. When Kocevar attempted to reach into the
backseat Wicker instructed her not to do so, as “when she reached towards the backseat of the
car, to me that indicated the marijuana was in that bag which was indicative of improper
transport of marijuana.” The colloquy continued:
Q. . . . [A]t that point what did you do, if anything?
A. I told her to stop, not to reach for the bag . . . .
* * *
Q. At that point what happened next?
A. . . . I said that if all she had, I believe, was the marijuana that - - and
she had a marijuana card, it should be okay. She then gave me consent to search.
The search yielded a prescription bottle of methadone that did not belong to Kocevar. Wicker
also found Kocevar’s medical marijuana, which was later returned to Kocevar.
On cross-examination, Wicker conceded that other than the fact of Kocevar’s 2004
conviction, she had no reason to suspect that any drug crime was afoot. She also admitted that
she had never issued any driver “an actual citation” for driving on or crossing the fog line, and
usually dispensed only a verbal warning. True to that tradition, no fog line citation was issued
here.
Kocevar filed a motion to suppress the methadone, contending that her consent to the
search was involuntary and that Wicker otherwise lacked reasonable suspicion of contraband in
the car. The prosecutor argued that Kocevar’s consent was freely given, but alternatively posited
that discovery of the methadone was “inevitable” as Kocevar had admitted to transporting
medical marijuana in the passenger compartment of her car. According to the prosecutor, this
act constituted a misdemeanor under MCL 750.474. Given that Wicker could have arrested
Kocevar on the spot for illegal transport of the marijuana, the prosecutor urged, the methadone
would have been found in a subsequent inventory search.
During the evidentiary hearing, Wicker revealed that the encounter had been recorded on
a DVD that began recording 30 seconds before Wicker stopped Kocevar’s car. Judge David A.
Thompson described the video as “grainy” and noted that he could not see Kocevar’s “rear
-3-
wheel.” Nevertheless, Judge Thompson determined that Kocevar’s “front passenger side wheel”
and “passenger side . . . cross[ed] over the fog line.” Judge Thompson further observed that
“there does not appear to be any weather that would’ve caused someone to favor the fog line,” as
the day was “clear” and “warm.”
Judge Thompson acknowledged that his predecessor on the circuit court, Judge James
Batzer, had ruled in a different case that driving “partially over the fog line” did not constitute a
violation of MCL 257.642. Judge Thompson disagreed with Judge Batzer, invoking an
unpublished opinion of this Court.2 In Judge Thompson’s view, Wicker “had reasonable
suspicion” that a violation of MCL 257.642(1)(a) had occurred, which justified the stop. The
court was not convinced, however, that Kocevar had voluntarily consented to the search of her
vehicle:
Now, this Court has serious reservations as to whether or not the consent
in this instance was valid by the defendant. The timing is such that this defendant
was detained for approximately ten minutes before it appears on the video that she
finally acquiesced and granted the trooper consent to search the vehicle. During
that time, as Trooper Wicker indicated, it was warm, quite warm. She had a
young child in her car. There seems to have been some dialogue back and forth
as elicited by Mr. Becker during his cross-examination of Trooper Wicker in
which consent was asked for three times and denied three times.
* * *
Consent has to be unequivocal. It has to be clear that the individual has
consented. And it has to be freely given. What led up to this, this Court finds
from looking at the totality of the circumstances, was persistence by Trooper
Wicker to attempt to access the car. And ultimately she was successful and
located contraband, specifically the methadone. . . . The Court cannot find that
this defendant, though, provided valid consent to search the vehicle.
Nevertheless, Judge Thompson declined to suppress the methadone. The court adopted
the prosecutor’s argument that because Kocevar was not carrying her medical marijuana “in a
trunk as was required by Michigan law,” Wicker could have arrested her for a misdemeanor
violation of the Michigan Medical Marijuana Act. “Whether she did that or not,” the court
declared, a search would have been conducted. A jury convicted Kocevar of unlawful
possession of a controlled substance, and she now appeals.
2
People v Boyd, unpublished opinion per curiam of the Court of Appeals, issued April 20, 2010
(Docket No. 289045). Without elaboration, the Boyd panel stated that the traffic stop in that case
“was lawful because driving outside a traffic lane constituted a traffic violation.”
-4-
II. STANDARD OF REVIEW
We review de novo a trial court’s ruling on a suppression motion, People v Steele, 292
Mich App 308, 313; 806 NW2d 753 (2011), its interpretation of a statute, People v Droog, 282
Mich App 68, 70; 761 NW2d 822 (2009), and its application of Fourth Amendment principles.
People v Jenkins, 472 Mich 26, 31; 691 NW2d 759 (2005). Factual findings made by the court
are reviewed for clear error, with deference given to the trial court’s resolution of factual issues.
People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2001). “Clear error exists when the
reviewing court is left with a definite and firm conviction that a mistake has been made.” People
v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). “We overstep our review function if
we substitute our judgment for that of the trial court and make independent findings.” Frohriep,
247 Mich App at 702.
III. FOURTH AMENDMENT PRINCIPLES
Kocevar contends that the seizure of her vehicle contravened the Fourth Amendment, as
her brief incursion over the fog line did not supply reasonable suspicion for the traffic stop. We
consider this a close question. Ultimately, however, we need not answer it, as the trial court
incorrectly relied on the inevitable discovery doctrine to uphold the search. The prolonged
seizure of Kocevar’s vehicle clearly contravened a long line of United States Supreme Court
cases, beginning with Florida v Royer, 460 US 491, 500; 103 S Ct 1319; 75 L Ed 2d 229 (1983)
(“This much, however, is clear: an investigative detention must be temporary and last no longer
than is necessary to effectuate the purpose of the stop.”), followed by Illinois v Caballes, 543 US
405, 407; 125 S Ct 834; 160 L Ed 2d 842 (2005) (“A seizure that is justified solely by the
interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond
the time reasonably required to complete that mission.”), and culminating in Rodriguez v United
States, __ US __; 135 S Ct 1609, 1616; 191 L Ed 2d 492 (2015).
We begin with the familiar principles that guide our Fourth Amendment jurisprudence
regarding traffic stops. “[T]o effectuate a valid traffic stop, a police officer must have an
articulable and reasonable suspicion that a vehicle or one of its occupants is subject to seizure for
a violation of law.” People v Williams, 236 Mich App 610, 612; 601 NW2d 138 (1999). If a
driver violates a portion of the Michigan Vehicle Code in a manner constituting a civil infraction,
the officer may stop and detain the vehicle. People v Dunbar, 499 Mich 60, 66; 879 NW2d 229
(2016). Stopping a vehicle and detaining its occupants constitutes a “seizure” under the Fourth
Amendment, “even though the purpose of the stop is limited and the resulting detention quite
brief.” Delaware v Prouse, 440 US 648, 653; 99 S Ct 1391; 59 L Ed 2d 660 (1979). “It is the
State’s burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable
suspicion was sufficiently limited in scope and duration to satisfy the conditions of an
investigative seizure.” Royer, 460 US at 500.
Wicker stopped Kocevar because she believed Kocevar violated MCL 257.642(1)(a),
which provides in relevant part:
When a roadway has been divided into 2 or more clearly marked lanes for
traffic, . . . [a] vehicle shall be driven as nearly as practicable entirely within a
-5-
single lane and shall not be moved from the lane until the operator has first
ascertained that the movement can be made with safety.
MCL 257.642(3) states: “A person who violates this section is responsible for a civil infraction.”
This case involves not only a seizure, but also a search. “[S]earches conducted outside
the judicial process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and well-delineated
exceptions.” Katz v United States, 389 US 347, 357; 88 S Ct 507; 19 L Ed 2d 576 (1967)
(citations omitted).3 In the vehicle-search context, the exceptions generally “ensure that officers
may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest
of a vehicle’s recent occupant justify a search.” Arizona v Gant, 556 US 332, 347; 129 S Ct
1710; 173 L Ed 2d 485 (2009). Gant highlighted that absent a contemporaneous arrest, the
police may not rummage through a driver’s personal effects simply because the driver has
violated a traffic law:
It is particularly significant that Belton[4] searches authorize police officers to
search not just the passenger compartment but every purse, briefcase, or other
container within that space. A rule that gives police the power to conduct such a
search whenever an individual is caught committing a traffic offense, when there
is no basis for believing evidence of the offense might be found in the vehicle,
creates a serious and recurring threat to the privacy of countless individuals.
Indeed, the character of that threat implicates the central concern underlying the
Fourth Amendment—the concern about giving police officers unbridled
discretion to rummage at will among a person’s private effects. [Id. at 345.]
A driver may also consent to a search. “Fourth Amendment rights may be waived, and
one may always consent to a search of himself or his premises.” People v Goforth, 222 Mich
App 306, 309; 564 NW2d 526 (1997). “Consent [to search] is not voluntary if it is the result of
coercion or duress.” People v Bolduc, 263 Mich App 430, 440; 688 NW2d 316 (2004).
3
Of course, where there is probable cause to search a vehicle “a search is not unreasonable if
based on facts that would justify the issuance of a warrant, even though a warrant has not been
actually obtained.” United States v Ross, 456 US 798, 809; 102 S Ct 2157; 72 L Ed 2d 572
(1982).
4
New York v Belton, 453 US 454; 101 S Ct 2860; 69 L Ed 2d 768 (1981), “held that police may
search the passenger compartment of a vehicle and any containers therein as a contemporaneous
incident of an arrest of the vehicle’s recent occupant.” Gant, 556 US at 337. The Court clarified
in Gant that Belton “authorizes police to search a vehicle incident to a recent occupant’s arrest
only when the arrestee is unsecured and within reaching distance of the passenger compartment
at the time of the search.” Id. at 343.
-6-
IV. FOG LINE JURISPRUDENCE
Federal and state courts from many jurisdictions have considered whether a brief fog line
incursion justifies a traffic stop. The statutes at issue in these cases vary only minimally from
Michigan’s; they generally provide that a vehicle “shall be operated as nearly as practicable
within a single lane,” and may not be moved from that lane until the driver has ascertained that it
is safe to do so.5
In a host of cases, appellate courts have held that momentary or isolated incursions on or
over the fog line do not constitute a failure to keep a vehicle “as nearly as practicable entirely
within a single lane.” For example, in United States v Freeman, 209 F3d 464 (CA 6, 2000), the
United States Court of Appeals for the Sixth Circuit construed a Tennessee statute identical to
Michigan’s in relevant part. An officer stopped the defendant’s vehicle, a Winnebago motor
home, because it had crossed the fog line and remained across the line for about 20 to 30 feet.
Id. at 465. Acknowledging that an officer may conduct a stop based on probable cause to believe
a traffic violation occurred, the Sixth Circuit rejected that “one isolated incident of a large motor
home partially weaving into the emergency lane for a few feet and an instant in time constitutes a
failure to keep the vehicle within a single lane ‘as nearly as practicable.’ ” Id. at 466 (citation
omitted). The court held that the officer’s “observation of the motor home briefly entering the
emergency lane is insufficient to give rise to probable cause of a traffic violation and warrant an
invasion of [the defendants’] Fourth Amendment rights.” Id. Citing United States v Gregory, 79
F3d 973, 978-979 (CA 10, 1996), the Sixth Circuit reasoned: “[i]f failure follow a perfect vector
down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person
of driving while impaired, a substantial portion of the public would be subject each day to an
invasion of their privacy.” Id.
The United States Court of Appeals for the Ninth Circuit reached a similar conclusion in
United States v Colin, 314 F3d 439, 443 (CA 9, 2002), involving a California statute mandating
that “[a] vehicle shall be driven as nearly as practical entirely within a single lane. . . .” The
defendant’s car “touched for approximately ten seconds, but did not cross, the fog line and the
solid yellow-painted line.” Id. at 444 (emphasis in original). Even assuming that part of the
vehicle crossed the line, the Ninth Circuit concluded that the officer lacked reasonable suspicion
to pull over the car: “Touching a dividing line, even if a small portion of the body of the car
veers into a neighboring lane, satisfies the statute’s requirement that a driver drive as ‘nearly as
practical entirely within a single lane.’ ” Id. (emphasis in original).
5
Our research reveals that 17 state statutes, including MCL 257.642, use the term “as nearly as
practicable.” The statutes of eight states use the term “as nearly as practical.” Webster’s New
World College Dictionary (5th ed), p 1144, defines “practical” as “usable; workable, useful and
sensible” and “practicable” as “that can be done or put into practice; feasible.” Webster’s
considers the two words synonyms, explaining: “practical stresses effectiveness as tested by
actual experience or as measured by a completely realistic approach to life or the particular
circumstances involved; practicable is used of something that appears to be capable of being put
into effect, but has not yet been developed or tried. . . .” Id.
-7-
Many state courts have similarly concluded that minimal fog line incursions do not
justify a traffic stop. In Rowe v State, 363 Md 424, 427; 769 A2d 879 (2001), the defendant’s
car crossed the fog line “by about 8 inches,” returned to travel lane, and a short time later
touched the fog line again. Maryland’s statute requires that vehicles “be driven as nearly as
practicable entirely within a single lane.” The Maryland Court of Appeals reviewed a number of
state court cases construing “essentially identical statutes,” id. at 436, including decisions from
Florida, Montana, Texas, Ohio and Oregon. Id. at 436-440. The court concluded that a driver’s
“momentary crossing of the edge line of the roadway and later touching of that line” did not
violate the Maryland statute, and did not support the traffic stop conducted in that case. Id. at
441.
In the years since Rowe was decided, other state courts have weighed in. The
Washington Court of Appeals, construing that state’s lane-travel statute (again, essentially
identical to Michigan’s) held that brief crossings of the fog line did not “justify a belief that the
vehicle was operated unlawfully.” State v Prado, 145 Wn App 646, 649; 186 P3d 1186 (2008).
And in State v Marx, 289 Kan 657, 664; 215 P3d 601 (2009), the Kansas Supreme Court held
that a deputy’s observation that a motor home crossed the fog line, overcorrected and then
crossed the centerline did not suffice to establish reasonable suspicion that the driver had
violated the Kansas statute, which includes language almost identical to Michigan’s. The court
held that the phrase “as nearly as practicable” “tells us that a violation of K.S.A. 8-1522(a)
requires more than an incidental and minimal lane breach.” Id. at 675.
Some caselaw goes the other way. For example, in State v Smith, 484 SW3d 393, 408
(Tenn, 2016), the Tennessee Supreme Court held that a violation of the Tennessee statute (which
also uses the phrase “as nearly as practicable”) permits a traffic stop when an officer determines
that it was “practicable” for the driver to remain in his or her lane of travel. The Court explained
that “ ‘as nearly as practicable’ means that a motorist must not leave her lane of travel any more
than is made necessary by the circumstance requiring the lane excursion.” Id. at 409. In cases
where an officer “would have to investigate further whether in order to determine whether the
driving maneuver violated” the statute, an officer “would not have probable cause to stop the
motorist but might have sufficient reasonable suspicion to do so.” Id. at 410. “[R]easonable
suspicion,” the court reminded, “will support only a brief, investigatory stop.” Id.
Because the road on which Kocevar traveled appears relatively straight and the driving
conditions favorable, we will assume that Wicker had a reasonable suspicion that Kocevar had
violated MCL 257.642(3) when she effected a traffic stop. However, that is only the beginning
of our analysis.
Issuing a citation for a traffic infraction does not authorize an officer to search a car.
Knowles v Iowa, 525 US 113, 114; 119 S Ct 484; 142 L Ed 2d 492 (1998). Nor does knowledge
that the person stopped has a prior drug crime on her record. United States v Sandoval, 29 F3d
537, 542 (CA 10, 1994). See also State v Grayson, 336 SW3d 138, 146 (Mo, 2011) (collecting
cases).
Here, the prosecutor initially justified the search based on Kocevar’s consent. The trial
court found Kocevar’s consent involuntary, and we have no reason to disturb that finding. See
Florida v Bostick, 501 US 429, 435; 111 S Ct 2382; 115 L Ed 2d 389 (1991) (noting that officers
-8-
may seek consent to search “as long as the police do not convey a message that compliance with
their requests is required.”). The sole remaining justification for the search—the inevitable
discovery doctrine—cannot be sustained, as but for a constitutional violation, the methadone
would not have been found.
V. AN UNDULY PROLONGED SEIZURE
If Wicker’s initial decision to seize Kocevar by stopping her vehicle was lawful, “[i]t is
nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment
if its manner of execution unreasonably infringes interests protected by the Constitution.”
Caballes, 543 US at 407. “A seizure that is justified solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to
complete that mission.” Id. In Rodriguez, 135 S Ct 1609, the United States Supreme Court shed
further light on what constitutes an unconstitutional extension of a routine traffic stop.
Dennys Rodriguez was stopped when he “veer[ed] slowly onto the shoulder” of a
Nebraska highway for a second or two, then “jerk[ed] back onto the road.” Id. at 1612.6 Trooper
Struble, who accomplished the stop, was a K-9 officer and had his dog in the car. After Struble
gathered Rodriguez’s license, registration, and proof of insurance, Struble ran a records check on
Rodriguez. Id. at 1613. When that was completed, Struble returned to the vehicle and asked for
Rodriguez’s passenger’s driver’s license. Struble began to question the passenger about “where
the two men were coming from and where they were going.” Id. The passenger explained that
the men had traveled to look at a car that was for sale, and were returning at the time of the stop.
Struble returned to his vehicle and ran a records check on the passenger. He also called for a
second officer. Id.
Those tasks completed, Struble returned to the vehicle for a third time “to issue [a]
written warning” to Rodriguez for the traffic violation. Id. Struble handed the licenses back to
each man. At that point, Struble later conceded, he had “ ‘all the reason[s] for the stop out of the
way[,] . . . took care of all the business.’ ” Id. (alterations in original). Nonetheless, Struble
asked Rodriguez for permission to walk his dog around the vehicle, and Rodriguez said no. Id.
Struble ordered Rodriguez to exit the vehicle and to stand in front of the patrol car until the
second officer arrived. At that point, Struble “retrieved his dog,” which alerted to the presence
of drugs. Id. “All told, seven or eight minutes had elapsed from the time Struble issued the
written warning until the dog indicated the presence of drugs.” Id. The ensuing search yielded
“a large bag of methamphetamine.” Id.
A district court magistrate found no probable cause to search the vehicle apart from the
dog sniff, but concluded that the seven-to-eight minute extension of the stop was “only a de
minimis intrusion on Rodriguez’s Fourth Amendment rights and was therefore permissible.” Id.
at 1613. The United States Court of Appeals for the Eighth Circuit affirmed, holding that the
6
The statutory authority for the stop, Neb Rev Stat § 60-6, 142 (2010), prohibits driving on the
shoulders of highways.
-9-
delay constituted an acceptable de minimis intrusion. United States v Rodriguez, 741 F3d 905,
907-908 (CA 8, 2014).
The Supreme Court vacated the judgment, holding that the authority for Rodriguez’s
seizure ended “when tasks tied to the traffic infraction [were]—or reasonably should have
been—completed. Rodriguez, 135 S Ct at 1614. “Because addressing the infraction is the
purpose of the stop,” the Court explained, “it may last no longer than is necessary to effectuate
that purpose.” Id. (quotation marks and citation omitted). Particularly pertinent here is the
Supreme Court’s further observation that the seizure of a motorist “remains lawful only so long
as [unrelated] inquiries do not measurably extend the duration of the stop.” Id. (quotation marks
and citation omitted, alteration in original). “An officer . . . may conduct certain unrelated
checks during an otherwise lawful traffic stop. But . . . he may not do so in a way that prolongs
the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.”
Id. at 1615.
The Court acknowledged that “[b]eyond determining whether to issue a traffic ticket,” an
officer may engage a driver in “ordinary inquiries incident to . . . [the] stop.” Id. (quotation
marks and citation omitted).
Typically such inquiries involve checking the driver’s license, determining
whether there are outstanding warrants against the driver, and inspecting the
automobile's registration and proof of insurance. These checks serve the same
objective as enforcement of the traffic code: ensuring that vehicles on the road are
operated safely and responsibly. [Id. (citations omitted).]
“[A] dog sniff,” the Court emphasized, “is not fairly characterized as part of the officer’s traffic
mission.” Id. Nor is investigation into “other crimes,” which “detours from that mission.” Id. at
1616. The Court was careful to distinguish between precautions taken by an officer to insure his
or her safety, and garden-variety sleuthing about matters unrelated to the stop. “Highway and
officer safety are interests different in kind from the Government’s endeavor to detect crime in
general or drug trafficking in particular.” Id. Nor can an officer earn “bonus time” by
completing a stop without unnecessary delay. “If an officer can complete traffic-based inquiries
expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s]
mission.’ As we said in Caballes and reiterate today, a traffic stop ‘prolonged beyond’ that point
is ‘unlawful.’ ” Id. (citations omitted, alteration in original). The “critical question,” the Court
summarized, was “whether conducting the sniff ‘prolong[ed]’—i.e. add[ed] time to—‘the
stop.’ ” Id. Because the Eighth Circuit failed to consider whether the magistrate had correctly
determined that the dog sniff “was not independently supported by individualized suspicion,” the
Supreme Court remanded the matter for the completion of that task. Id.
In Rodriguez, the Supreme Court trained its focus on the “mission” of a traffic stop:
issuing a traffic ticket. Indeed, the Court considered the officer’s traffic enforcement “mission”
so critical to its analysis that it repeated this word eight times in its opinion. Id. at 1614-1616.
Snooping around for other crimes, the Court emphasized, is not a part of the traffic stop
“mission.” Id. We follow the Supreme Court’s lead, and turn to the “mission” in the case before
us and the time line of its accomplishment.
-10-
Wicker testified that her initial conversation with Kocevar included an explanation of the
reason for the stop and a request for Kocevar’s license and registration. The video of the
encounter indicates that this occurred approximately one-and-a-half minutes after Kocevar pulled
her car to a stop at the side of the road. Wicker recalled having asked Kocevar during this
conversation whether Kocevar “had anything in the car that she shouldn’t have,” and that
Kocevar answered in the negative. At that point, Wicker recounted, she took Kocevar’s
documents to her patrol car and ran the information through her computer. Wicker learned of
Kocevar’s 11-year-old drug conviction, and returned to Kocevar’s car. The video reflects that
Wicker approached the driver’s side window approximately five minutes after she had collected
Kocevar’s driver’s license. A moment or two later, apparently in compliance with Wicker’s
order, Kocevar pulled her car further over to the side of the road a few yards ahead of where she
had stopped, resting it completely on the shoulder.
Less than half a minute later, Wicker again engaged Kocevar in conversation. Wicker
did not return Kocevar’s documents. During this conversation, Wicker recollected, Kocevar’s
responses indicated to Wicker that “maybe there was something” in the car. Wicker testified that
she again asked Kocevar if “she had anything in the car that she shouldn’t have,” and Kocevar
repeated that she did not. At some point during the conversation, Kocevar’s possession of a
medical marijuana card came up; when Kocevar reached toward the back seat Wicker instructed
her not to, stating (in Wicker’s words) that “if she had . . . a marijuana card, it should be okay[.]”
All told, the trial court found that Wicker asked for consent to search three times, and
Kocevar denied permission three times. When Wicker again asked to search the vehicle,
Kocevar inquired whether a search warrant was required. Wicker replied that she did not need a
search warrant. Kocevar recalled that Wicker also advised “she could get a dog.” Kocevar then
consented to a search. The trial court found that Wicker had detained Kocevar for approximately
10 minutes in total before commencing the search. And in her preliminary examination
testimony, Wicker admitted that she and Kocevar had “a somewhat protracted conversation
about searching [Kocevar’s] car.”
The “mission” of the traffic stop was to ticket Kocevar for her fog line infraction.
Although Wicker candidly admitted that she has never given anyone a citation for driving on or
crossing the fog line and did not cite Kocevar for this offense, no other reason justified stopping
Kocevar’s car. The traffic-control portion of the “mission” was complete when Wicker returned
to Kocevar’s car after running Kocevar’s information through the computer. That was the point
at which Wicker was authorized either to ticket Kocevar or to send her on her way with a
warning. Instead, Wicker pivoted from traffic enforcer to drug detective. In so doing, Wicker
violated Kocevar’s Fourth Amendment right to be free from unreasonable seizure.
VI. THE INEVITABLE DISCOVERY DOCTRINE DOES NOT APPLY
The inevitable discovery doctrine permits the admission of evidence obtained in violation
of the Fourth Amendment if a preponderance of the evidence demonstrates that the contraband
eventually would have been obtained in a constitutionally acceptable manner. People v Hyde,
285 Mich App 428, 439; 775 NW2d 833 (2009). Hyde requires that a court examine the
following factors: (1) whether the legal means that would have led to the discovery of the
evidence are truly independent, (2) “whether both the use of the legal means and the discovery
-11-
by that means are truly inevitable, and (3) whether the application of the inevitable discovery
doctrine provides an incentive for police misconduct or significantly weakens Fourth
Amendment protections.” Id. at 440.
The trial court ruled that Wicker would have inevitably discovered the methadone
because during her conversation with Kocevar regarding a search, Kocevar volunteered that she
had medical marijuana in the passenger compartment. According to the trial court, transporting
medical marijuana in an accessible location in the vehicle violated Michigan law.7 However,
Kocevar’s revelation was made during an unconstitutionally protracted seizure. But for the
questioning that persisted far beyond the time needed to ticket or warn Kocevar about her
driving, Wicker would never have learned about the medical marijuana or threatened the dog
sniff that led to Kocevar’s involuntary consent. Application of the inevitable discovery doctrine
under these circumstances would incentivize conduct that Rodriguez and its predecessors
condemn: prolonging a seizure for the sole purpose of ferreting out an unrelated crime. Just as
Wicker’s inaccurate statements about the need for a search warrant tainted Kocevar’s consent,
her extended questioning about what Kocevar might be carrying in the car poisoned Kocevar’s
revelation about the presence of her medical marijuana.
We reverse.
/s/ Amy Ronayne Krause
/s/ Elizabeth L. Gleicher
7
This Court subsequently held that the statute on which the trial court relied, MCL 750.474,
cannot be enforced against an otherwise compliant medical marijuana patient. People v Latz, __
Mich App __; __ NW2d __ (2016) (Docket No. 328274, issued December 20, 2016).
-12-