2018 UT App 51
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TY WILLIAM MCLEOD,
Appellant.
Opinion
No. 20151060-CA
Filed March 29, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 141902943
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 Ty William McLeod appeals the district court’s denial of
his motion to suppress drug and paraphernalia possession
evidence discovered during a traffic stop. The district court
determined that the officers did not have reasonable suspicion to
extend the detention. However, it denied the motion to suppress
because the length of McLeod’s detention did not exceed the
amount of time reasonably necessary to complete an ordinary
traffic stop. On appeal, the State concedes that the “denial of the
suppression motion appears to have been based on an incorrect
understanding of the law” but urges us to affirm on the
alternative ground that the officers had reasonable suspicion to
prolong the stop. We agree with the district court that the officer
lacked reasonable suspicion. As a result, we decline to affirm on
State v. McLeod
the alternative ground, and we reverse the district court’s denial
of the motion to suppress.
BACKGROUND 1
¶2 A police officer was patrolling 200 South 500 West in Salt
Lake City when he noticed a vehicle parked in the median of the
street. The officer watched as McLeod exited the vehicle and
jaywalked across the street. McLeod approached three people,
who pointed out that the officer was nearby. McLeod then
walked around the corner, out of the officer’s sight. The officer
waited for McLeod to return to his vehicle.
¶3 When McLeod returned, he got into his vehicle and
pulled away from the median without signaling. 2 At that point,
the officer initiated a traffic stop. The officer approached
McLeod’s vehicle and requested his driver license, proof of
insurance, and vehicle registration. When McLeod was unable to
produce those documents, the officer asked for his name and
other identifying information.
¶4 The officer returned to his patrol car to complete a records
check while a backup officer, who had arrived on the scene,
watched McLeod. During the records check, McLeod continued
1. “In reviewing the [district] court’s ruling on a motion to
suppress evidence, we recite the relevant facts in the light most
favorable to the [district] court’s findings.” State v. Navarro, 2017
UT App 102, ¶ 2 n.1, 400 P.3d 1120 (citation and internal
quotation marks omitted).
2. “A person may not turn a vehicle or move right or left on a
roadway or change lanes until . . . an appropriate signal has been
given . . . .” Utah Code Ann. § 41-6a-804(1)(a) (LexisNexis Supp.
2017).
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State v. McLeod
“moving around quite a bit in his front seat.” The backup officer
told McLeod to stop moving around, and he complied.
¶5 The records check confirmed that McLeod had a valid
driver license and that he did not have any outstanding
warrants. The officer later testified that nothing in McLeod’s
record “raised concerns of violence” or suggested that the officer
“should detain him further on . . . any other matters.”
¶6 The officer also acknowledged that, “at that point, it was
either write the citation or give him a warning [for the traffic
violation].” But the officer did not write McLeod a citation, give
him a warning for any offense, or tell him that he was free to
leave. Instead, the officer returned to McLeod’s vehicle and
asked whether “he had anything illegal in the car.” When
McLeod said “No,” the officer asked if he could search the
vehicle, and McLeod responded, “Sure.”
¶7 As he prepared to step out of the car, McLeod reached
underneath a pile of clothes on the passenger seat. Concerned
that McLeod was reaching for a weapon, the officers ordered
McLeod out of the vehicle and frisked him, which confirmed
that McLeod did not have any weapons on his person.
¶8 The officer then asked McLeod a second time whether
there was anything illegal in the vehicle. This time, McLeod
admitted that he had a syringe in a shoe inside the car.
Approximately ten minutes had elapsed from the beginning of
the traffic stop to the time that McLeod indicated that he had a
syringe.
¶9 During the ensuing search of McLeod’s vehicle, the officer
discovered a heroin-filled syringe and a black twist 3 in the shoe
3. According to the officer, certain drugs are typically packaged
in a twist, which is a pinky-sized bag that has been twisted and
(continued…)
20151060-CA 3 2018 UT App 51
State v. McLeod
and two more black twists in the center console. The officer
believed that the twists contained heroin because, based on his
training and experience, that was “the way [heroin] was
packaged.”
¶10 McLeod was arrested and subsequently charged with
possession or use of a controlled substance, a third degree
felony, and possession of drug paraphernalia, a class B
misdemeanor. Before trial, McLeod moved to suppress the
evidence, contending that the officer had violated his rights
under the Fourth Amendment to the United States Constitution.
Specifically, McLeod argued that because “there [was] no
reasonable basis to extend the stop[,] . . . [the officer’s] request to
search the vehicle constituted an illegal detention and the
evidence should be suppressed.”
¶11 In denying the motion to suppress, the district court
rejected the State’s argument that McLeod’s “furtive
movements” and “suspicious acts” prior to the traffic stop
constituted reasonable suspicion to extend the detention.
Instead, the court concluded that the officer “did not
unconstitutionally extend the scope of the traffic stop,” because
his “activities that were not directed toward the traffic
investigation took substantially less time than would have been
required to complete the traffic investigation and issue a
citation.”
¶12 McLeod pled guilty to possession of a controlled
substance, a class A misdemeanor, preserving his right to appeal
the district court’s denial of his motion to suppress. See Utah R.
App. P. 11(j). McLeod timely appeals.
(…continued)
then melted on the end to prevent breaking. The color of the
twist varies based on the type of drug it contains.
20151060-CA 4 2018 UT App 51
State v. McLeod
ISSUE AND STANDARD OF REVIEW
¶13 McLeod contends that the district court erred in denying
his motion to suppress because the officer extended the scope
and duration of the traffic stop without reasonable suspicion to
investigate unrelated criminal activity.
¶14 “We review a [district] court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation
as a mixed question of law and fact.” State v. Simmons, 2017 UT
App 224, ¶ 12, 409 P.3d 129 (citation and internal quotation
marks omitted). “While the court’s factual findings are reviewed
for clear error, its legal conclusions are reviewed for correctness,
including its application of law to the facts of the case.” Id.
(citation and internal quotation marks omitted).
ANALYSIS
¶15 The Fourth Amendment to the United States Constitution
does not forbid all searches and seizures, “but [only]
unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9
(1968) (citation and internal quotation marks omitted). The
proscription against unreasonable searches and seizures extends
to traffic stops “even though the purpose of the stop is limited
and the resulting detention quite brief.” Delaware v. Prouse, 440
U.S. 648, 653 (1979).
¶16 “To decide whether police conduct during a traffic stop is
reasonable, we consider whether the stop was (1) ‘justified at its
inception’ and (2) carried out in a manner ‘reasonably related in
scope to the circumstances [that] justified the interference in the
first place.’” State v. Martinez, 2017 UT 43, ¶ 12 (alteration in
original) (quoting United States v. Sharpe, 470 U.S. 675, 682
(1985)).
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State v. McLeod
¶17 Here, it is undisputed that the stop was justified at its
inception because the officer had probable cause to stop McLeod
for failing to signal before turning. But a traffic stop that is
lawful at its inception “can become unlawful if it is prolonged
beyond the time reasonably required to complete [the stop’s]
mission,” including the time necessary “to address the traffic
violation that warranted the stop and attend to related safety
concerns.” Rodriguez v. United States, 135 S. Ct. 1609, 1614–15
(2015) (citations and internal quotation marks omitted). “If,
during the scope of the traffic stop, the officer forms new
reasonable articulable suspicion of criminal activity, the officer
may also expediently investigate his new suspicion.” State v.
Baker, 2010 UT 18, ¶ 13, 229 P.3d 650. But “without additional
reasonable suspicion, the officer must allow the seized person to
depart once the purpose of the stop has concluded.” Id.
¶18 On appeal, the State concedes that the officer prolonged
the detention beyond the time necessary to complete the purpose
of the traffic stop in order to investigate McLeod’s involvement
in unrelated drug activity. In denying the motion to suppress,
the district court determined that the officer did not have
reasonable suspicion of other criminal activity, but it ruled that
reasonable suspicion was not required because the officer did
not detain McLeod longer than the time reasonably necessary to
complete an ordinary traffic stop. The State concedes that it
cannot argue for affirmance on this basis given the United States
Supreme Court’s holding in Rodriguez.
¶19 In Rodriguez, the Supreme Court determined that,
although officers may ask questions unrelated to the purpose of
the traffic stop without offending the Fourth Amendment “so
long as [unrelated] inquiries do not measurably extend the
duration of the stop,” they cannot earn “bonus time to pursue an
unrelated criminal investigation” by expeditiously completing
all traffic-related tasks. 135 S. Ct. at 1615–16. “If an officer can
complete traffic-based inquiries expeditiously, then that is the
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State v. McLeod
amount of time reasonably required to complete [the stop’s]
mission.” Id. (alteration in original) (citation and internal
quotation marks omitted). A traffic stop prolonged beyond that
point is unlawful unless it is supported by reasonable suspicion
of other criminal activity. See Baker, 2010 UT 18, ¶ 13.
¶20 The State acknowledges that the officer had completed
the purpose of the traffic stop when he returned to McLeod’s
vehicle following the records check. Accordingly, reasonable
suspicion was required to detain McLeod further and inquire as
to whether he had anything illegal in his car.
¶21 The State argues that the officer had reasonable suspicion
to prolong the traffic stop and urges us to affirm the denial of the
motion to suppress on that alternative basis. Even though the
district court determined that the officer lacked reasonable
suspicion, we may affirm “on any legal ground or theory
apparent on the record.” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52
P.3d 1158 (citation and internal quotation marks omitted).
However, we are “limited to the findings of fact made by the
trial court and may not find new facts or reweigh the evidence in
light of the new legal theory or alternate ground.” Id. ¶ 20.
¶22 The State argues that McLeod’s “prior suspicious conduct
in a high-drug-crime area, combined with his conduct during the
traffic stop, constituted reasonable suspicion.” To support its
argument, the State points to the following circumstances:
(1) McLeod’s “conduct approaching three separate people while
there” and his “prompt departure upon learning that police
were nearby,” (2) McLeod’s “furtive movements during the
traffic stop,” and (3) McLeod’s “presence in an area known to be
high in drug-dealing.” As noted infra ¶ 11, the district court
concluded that these facts did not give rise to reasonable
suspicion to investigate any criminal activity beyond the traffic
violation. Based on the court’s factual findings, we agree that the
totality of the circumstances did not provide the officer with a
20151060-CA 7 2018 UT App 51
State v. McLeod
particularized and objective basis to believe McLeod was
involved in criminal activity.
¶23 Reasonable suspicion is an elusive concept that is “not
readily, or even usefully, reduced to a neat set of legal rules.”
Ornelas v. United States, 517 U.S. 690, 695–96 (1996) (citation and
internal quotation marks omitted). To determine whether
reasonable suspicion exists, we must examine the “totality of the
circumstances” to establish “whether the detaining officer [had]
a particularized and objective basis for suspecting legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(citation and internal quotation marks omitted); see also State v.
Markland, 2005 UT 26, ¶ 11, 112 P.3d 507 (stating that “[c]ourts
must view the articulable facts in their totality and avoid the
temptation to divide the facts and evaluate them in isolation”
(alteration in original) (citation and internal quotation marks
omitted)). Officers may “draw on their own experience and
specialized training” to make inferences that “might well elude
an untrained person.” Arvizu, 534 U.S. at 273 (citation and
internal quotation marks omitted). While reasonable suspicion
requires officers to articulate more than a “hunch,” they are not
required to “rule out the possibility of innocent conduct.” State v.
Richards, 2009 UT App 397, ¶ 9, 224 P.3d 733 (citation and
internal quotation marks omitted).
¶24 First, the State argues that McLeod acted suspiciously by
approaching three people on a sidewalk and then walking
around the corner when at least one person pointed to the
officer. “[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S.
119, 124 (2000). But the district court made no factual finding
characterizing McLeod’s conduct as evasive and the limited
evidence presented does not compel such an inference. There is
no suggestion that McLeod engaged in headlong flight, “the
consummate act of evasion,” id., or even that he abruptly
changed course in response to the presence of the officer. Based
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State v. McLeod
on the testimony, McLeod’s conduct in walking around the
corner could just as easily be characterized as going about one’s
business. See id. at 125. Without more, we cannot give this factor
any significant weight in the reasonable suspicion calculus.
¶25 Second, the State relies on what it characterizes as
McLeod’s “furtive gestures” during the traffic stop. Furtive
gestures may be a relevant factor in the reasonable suspicion
analysis if they are “coupled with prior reliable information
indicating possible criminal conduct.” State v. Schlosser, 774 P.2d
1132, 1138 n.5 (Utah 1989). But the mere fact that McLeod was
“moving all around” while the officer conducted a records check
does not weigh heavily in favor of reasonable suspicion. While
the district court referred to the State’s characterization of
McLeod’s movements as “furtive,” it did not make any factual
finding that McLeod’s actions were suspicious. See Angel Inv’rs,
LLC v. Garrity, 2009 UT 40, ¶ 39, 216 P.3d 944 (“Stating the
[party’s] assertion without ruling on the validity of the assertion
does not constitute a finding of fact.”). In his testimony, the
officer acknowledged it is not unusual for drivers who could not
produce a license and registration to continue looking for those
items. The fact that the district court specifically considered the
alleged furtive movements and still concluded that there was no
reasonable suspicion to prolong the stop persuades us that
McLeod’s behavior was not inherently suspicious or strongly
indicative of criminal behavior.
¶26 Finally, we recognize that a location’s reputation for being
a “high crime area” is a relevant factor for courts to consider as
part of the reasonable suspicion analysis. See Wardlow, 528 U.S. at
124. While the district court did not make specific findings of fact
regarding the character of the neighborhood in this case, 4 the
4. At the hearing on the motion to suppress, the district court
received evidence on both this case and a related case we also
(continued…)
20151060-CA 9 2018 UT App 51
State v. McLeod
officer testified that 200 South 500 West is a high-crime area
known for drug trafficking and aggravated crimes. This
undisputed testimony weighs in favor of the State’s argument,
but “[a]n individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime.”
Id.
¶27 Taken together, the totality of the circumstances were
insufficient for the officer to form a particularized and objective
basis to suspect that McLeod was involved in criminal activity
beyond the observed traffic violation. Because the purpose of the
stop was completed, McLeod’s further detention without
reasonable suspicion of additional criminal activity violated the
Fourth Amendment thereby tainting McLeod’s consent to search
the vehicle. Accordingly, we decline to affirm McLeod’s
conviction on the State’s proposed alternative ground.
CONCLUSION
¶28 We accept the State’s concessions that the officer
prolonged McLeod’s detention beyond the time necessary to
complete the traffic stop and that reasonable suspicion was
required to further detain him and ask questions unrelated to the
purpose of the stop. While we disagree with the district court
that the traffic stop was not unlawfully extended, we do agree
with the district court that the officer lacked reasonable
suspicion to believe McLeod was engaged in other criminal
activity. As a result, we conclude that McLeod’s Fourth
(…continued)
decide today, State v. McLeod, 2018 UT App 52. In that case, the
district court made a finding that this area—the so-called Rio
Grande district on Salt Lake City’s west side—is a high-crime
area.
20151060-CA 10 2018 UT App 51
State v. McLeod
Amendment rights were violated and that he is entitled to
suppression of the evidence discovered during the traffic stop.
¶29 We therefore reverse and remand for further proceedings
consistent with this opinion.
20151060-CA 11 2018 UT App 51