(concurring):
121 I do not disagree with the majority opinion's determination that Baker was unlawfully frisked and that the contraband discovered on his person should be suppressed. I write separately, however, to clarify that I view the frisk as ilegal solely because the length and scope of Baker's detention prior to the frisk was unreasonable under the circumstances. Accordingly, I1 would simply disallow the frisk as a fruit of an unlawful detention without addressing whether it might be justified as a Terry frisk for weapons. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
1 22 "The constitutionality of a search and seizure is determined by answering two questions: '(1) Was the police officer's action justified at its inception? and (2) Was the resulting detention reasonably related in scope to the cireumstances that justified the interference in the first place? " Layton City v. Oliver, 2006 UT App 244, ¶ 14, 139 P.3d 281 (quoting State v. Lopez, 873 P.2d 1127, 1131-32 (Utah 1994)). Until recently, there was some question about whether and when a private vehicle's passengers are deemed detained during an ordinary traffic stop. Last year, the Supreme Court answered that question in Brendlin v. California, -- U.S. ---, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), holding that a passenger in a private vehicle that is pulled over by police is "seized from the moment [the] car [comes] to a halt on the side of the road," id. at 2410, and suggesting that the seizure continues until police indicate that the passenger is free to go, see id. at 2406-07 ("[Alny reasonable passenger would have understood ... that no one in the car was free to depart without police permission.").1
123 Returning to the two-part analysis described in Layton City v. Oliver, 2006 UT App 244, ¶ 14, 139 P.3d 281, I believe that it is implicit in the Brendlin opinion that this seizure of a vehicle's passengers is justified at its inception so long as the vehicle stop itself is justified. See generally Brendlin, -- U.S. --, 127 S.Ct. 2400. In the present case, the vehicle stop was supported by probable cause of a traffic violation and was clearly valid. Accordingly, I would deem Baker's seizure justified at its inception.
{24 The question then turns to whether Baker's continued detention was " 'reasonably related in scope to the cireumstances that justified the interference in the first place." " Layton City, 2006 UT App 244, ¶ 14, 139 P.3d 281 (citation omitted). In the context of a passenger detained solely as a result of a driver's traffic violation, this is not necessarily a simple question to answer. At one extreme, it could be said that the passenger's continued detention is not related in any way to the driver's traffic violation, and thus, the passenger's detention becomes illegal unless the officer informs the passenger, at the officer's earliest convenience, that the passenger is free to go. The other extreme is argued by the State in this case: that a passenger is legitimately detained so long as the driver is legitimately detained, however *942long that might be. I do not subscribe to either of these positions and instead conclude that the validity of the passenger's detention, like most search and seizure questions, must be evaluated on a case-by-case basis looking at the totality of the circumstances. See, e.g., State v. Rodrigues, 2007 UT 15, ¶ 51, 156 P.3d 771 (examining "'all of the cireum-stances surrounding the search or seizure and the nature of the search or seizure itself " (quoting United States v. Montoya de Hernandes, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985))); State v. Marques, 2007 UT App 170, ¶ 11, 163 P.3d 687 ("[The reasonableness of any warrantless search must be determined on a case-by-case basis with the focus on the totality of the cireum-stances.").
4 25 I agree with the majority opinion that, under the cireumstances of this case, police detention of Baker was not justified once the decision to arrest the driver was made. At that point, a brief traffic stop had turned into an indefinite detention. There was no possibility that Baker would shortly be allowed to continue on his way as the driver's passenger because the driver was not going to be allowed to leave. This significant change in the nature of the stop created, in my opinion, some obligation on the part of the officers to address the passengers' situation as unwilling detainees, with the ultimate result of informing the passengers in a timely manner that they were free to go.
T 26 I express no opinion on how the police might fulfill this obligation in any particular case, or how rapidly they must do so. I note that police officers must have significant latitude to do their jobs and that I would not ordinarily find constitutional violations to be created by a few seconds, or even a few minutes, of variation in police practice from one stop to the next. Others may disagree. See State v. Adams, 2007 UT App 117, ¶ 19, 158 P.3d 1134 (Orme, J., dissenting) ("If football is a game of inches, Fourth Amendment jurisprudence can be a matter of seconds."), cert. denied, 168 P.3d 1264 (Utah 2007). In this case, however, the police took no actions aimed at releasing the passengers over the ten to fifteen minutes between the driver's arrest and the drug dog's alert.
11 27 It is also relevant that the facts of this case suggest that Baker and the other passengers were being detained solely to await the arrival of the drug-sniffing dog. There seems to be no reason for their detention besides a desire that the dog sereen the vehicle and all of its occupants for illegal drugs. Absent some separate justification for detaining Baker and the other passengers, each passenger's detention must be justified by individualized suspicion of the erimi-nal behavior being investigated during the detention-in this case, possession of drugs.2 I see no such individualized suspicion here. A passenger's mere presence in a vehicle driven by one whose driver license has been suspended because of drugs does not equate to reasonable suspicion that the passenger is involved with drugs. Cf. State v. Potter, 860 P.2d 952, 956 (Utah Ct.App.1993) (stating that a convicted drug user's presence in a home is "not properly part" of the probable cause analysis required to justify a search warrant for drugs in the home). The State points to no other grounds for reasonable suspicion that Baker had drugs, and his detention for the sole purpose of being screened for drug possession was therefore impermissible.
11 28 In sum, a passenger who silently submits to police authority by remaining in a lawfully stopped vehicle is seized, but permissibly so in my opinion. See generally Brendlin v. California, - U.S. --, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). And, so long as the stop is likely to be resolved in a reasonably short period of time and the focus of the detention is solely on the driver, I see no per se unreasonableness in the passenger's secondary detention. Here, however, *943the driver's detention had effectively become permanent, and the investigatory seope of the detention had widened to include Baker as a target. Without some reason to independently suspect Baker of wrongdoing, this detention of Baker was unreasonable and represents a violation of his Fourth Amendment rights.
29 I would end the analysis at this point and reverse the trial court's suppression ruling. I see no reason to additionally address whether Baker's frisk was justified for officer safety reasons. If such a frisk had been timely performed, I might very well accede to it on officer safety grounds. See State v. Warren, 2008 UT 36, ¶ 13, 78 P.3d 590 ("[An officer may perform a protective frisk pursuant to a lawful stop when the officer reasonably believes a person is 'armed and presently dangerous to the officer or others'" (quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). Various factors might support a reasonable belief that Baker and his companions presented an armed danger to the officers conducting the stop-they outnumbered the police and were in possession of an unusually large array of knives, it was late at night, and at least the driver had some previous eriminal involvement.
130 Nevertheless, the frisk in this case was not timely performed, but rather occurred after a substantial period of unlawful detention resulting from an unjustified desire to await the arrival of the drug-detection dog. As such, I believe it must be suppressed as the poisonous fruit of that unlawful detention even if it might have been justified if performed earlier in the stop. See State v. Worwood, 2007 UT 47, ¶ 50, 164 P.3d 397 (rejecting the "if we hadn't done it wrong, we would have done it right" defense of unconstitutional searches and seizures). For these reasons I concur in the result reached by the majority, but with the clarifications and reservations expressed herein.
. In this case, not only did the police officers not inform Baker that he was free to go, they took at least one knife from him and retained it over the course of the stop. Police retention of personal property alone may be sufficient to establish a seizure under our existing case law. See, eg., Salt Lake City v. Ray, 2000 UT App 55, TNY 14-17, 998 P.2d 274 (explaining that, generally, a person is seized while the police hold their identification papers or other property). Accordingly, the police actions in this case provide an independent basis for concluding that Baker was seized for the duration of the stop.
. The drug sniff of the driver and his car was likely entirely proper. See Illinois v. Caballes, 543 U.S. 405, 406-08, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (upholding dog sniff of-stopped vehicle so long as it does not extend otherwise legitimate stop). The driver had been taken into custody, and the delay pending the arrival of the drug dog did not extend his detention in any way. By contrast, if the passengers would otherwise have been allowed to proceed on their way, then their compelled presence pending the dog's arrival did extend their detention and must be justified by individualized reasons for doing so.