2022 UT App 117

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

CHAD HINTZE,

Appellant.

Opinion

No. 20200787-CA

Filed October 14, 2022

Third District Court, Salt Lake Department

The Honorable Heather Brereton

No. 181903394

David A. Ferguson, Attorney for Appellant

Simarjit S. Gill, Hyrum J. Hemingway, and Joey L. 

Blanch, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE

DAVID N. MORTENSEN concurred. JUDGE RYAN D. TENNEY

dissented, with opinion.

HARRIS, Judge:

¶1 One day in 2016, Chad Hintze was sitting on a park bench 

with a teenage family friend when three uniformed officers 

approached him and began asking him questions. During this 

questioning, officers learned Hintze’s name and that he was a 

convicted sex offender. Because he was a sex offender, Hintze was 

not legally permitted to be in the park. As a result, the State 

charged Hintze with one count of “violation by sex offender of 

protected area.”

¶2 But the State failed to prosecute the case—or even notify 

Hintze of the charge—for over two years. Hintze finally learned 

about the pending charge when corrections officials told him that 
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20200787-CA 2 2022 UT App 117

it made him ineligible for parole on another matter. Soon after 

learning about the pending charge, Hintze filed a motion to 

dismiss it, arguing that the State’s delay in prosecuting him had 

violated his Sixth Amendment right to a speedy trial. The district 

court denied his motion, and Hintze later entered a conditional 

guilty plea that reserved his right to challenge the court’s decision.

¶3 Hintze now takes up that challenge, and asks us to reverse 

the district court’s denial of his motion to dismiss. We find merit 

in Hintze’s arguments, and agree that his Sixth Amendment right 

to a speedy trial was violated. On that basis, we reverse his 

conviction and remand with instructions to dismiss the charge.

BACKGROUND

¶4 In 2011, Hintze was convicted of attempted unlawful 

sexual activity with a minor. See Utah Code Ann. § 76-4-101 

(LexisNexis 2008); id. § 76-5-401. Because of this conviction, 

Hintze was required to register as a sex offender. See id. § 77-27-

21.5(1)(n)(i)(V) (Supp. 2010).1 And subject to a few exceptions not 

at issue in this case, it is accordingly a crime for Hintze to “be in a 

protected area.” Id. § 77-27-21.7(3)(a) (Supp. 2022). By statute, “a 

community park that is open to the public” qualifies as a 

protected area. Id. § 77-27-21.7(1)(b)(i)(D).

The June 2016 Park Incident

¶5 On June 7, 2016, Hintze and a teenage girl were “eating 

snacks” and sitting “on [a] park bench” along the Jordan River 

Trail when three uniformed officers on bike patrol approached 

1. Because of changes to the statutes that required Hintze to 

register as a sex offender, we cite the versions in effect at the time 

of his 2011 conviction. The current requirements for who qualifies

as a sex offender can be found in Utah Code section 77-41-102(17)

(LexisNexis Supp. 2022).
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20200787-CA 3 2022 UT App 117

them. The officers stopped right in front of Hintze and the 

teenager and parked their bikes in front of and to the side of the 

bench where Hintze and the teenager were sitting.

¶6 The first officer asked, “[H]ow’s it going guys? How old 

are you guys?” Hintze responded that he was twenty-three years 

old, and the teenager responded that she was thirteen.2 The officer 

then asked how they knew each other. Hintze responded that they

were siblings. But the officer doubted this because of “their 

complexions,” so he said to Hintze, “[It] doesn’t look like you 

guys are siblings.” In response, Hintze told the officer that he was 

actually “adopted.” When the officer pressed back on that, Hintze 

then replied that he was actually “kind of adopted into the 

family” and was “a family friend.” At this point (which was about 

a minute into the encounter), the officer asked Hintze for his name 

and birth date, which Hintze provided.

¶7 While the first officer and Hintze were engaged in that 

conversation, the teenager called her mother. The teenager 

handed the phone to one of the other officers, and he then spoke 

to the teenager’s mother. During that brief conversation, the 

mother provided the officer with Hintze’s name and told him that

Hintze was “a family friend.” The officer responded by explaining 

that the officers “just wanted to make sure there wasn’t anything 

2 . The very early portions of the encounter (including this 

particular moment) were caught on video but not on audio. When 

describing this question and answer at the subsequent hearing, 

the officer testified that Hintze told him that he was twenty-two. 

But based on the birthdate that Hintze then gave the officer in a 

portion for which the audio was recorded (which matches

Hintze’s birthdate as indicated elsewhere in the record), Hintze 

would have been twenty-three. The difference between twentytwo and twenty-three is immaterial for purposes of the issues on 

appeal. For consistency, we assume for purposes of our analysis 

that Hintze was twenty-three at the time of this incident.
State v. Hintze

20200787-CA 4 2022 UT App 117

else going on here” and that they “just wanted to make sure” that 

the teenager “was safe.” The officer then hung up and gave the 

phone back to the girl. As the encounter continued, an officer 

radioed in to dispatch “to check the identity” and run a warrants 

check on Hintze using the name and birth date provided by 

Hintze. From this, the officer learned that Hintze was a registered 

sex offender.

¶8 The girl’s mother soon came and picked her daughter up,

while the officers continued to talk with Hintze. After talking with 

him for about twenty minutes, the officers decided not to place 

Hintze under arrest, telling him that they didn’t “feel that’s the 

best avenue at this juncture.” The officers instead allowed Hintze 

to walk away.

The Initial Delay in Prosecution

¶9 The State did not immediately file charges against Hintze 

based on the June 2016 park incident described above.

¶10 In March 2017, however, Hintze was charged with forcible 

sexual abuse, a second-degree felony, in a separate and unrelated 

case (case no. 171903226, hereinafter “Case 3226”). In June 2017, 

Hintze pleaded guilty in Case 3226 to an amended charge of 

attempted forcible sexual abuse, a third-degree felony. And in 

August 2017, Hintze was sentenced to a prison term of zero-tofive years based on that conviction.

¶11 On March 15, 2018, Hintze had an initial parole hearing in 

Case 3226, but the Board of Pardons and Parole (the Board) chose 

not to release him. Instead, it scheduled another hearing for 

March 2020, and told Hintze that he needed to complete a sex 

offender training program “before being considered for parole.”

¶12 On March 23, 2018, the State finally filed a charge against 

Hintze related to the June 2016 incident described above (and 

which is ultimately at issue in this appeal). In the information, the 
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20200787-CA 5 2022 UT App 117

State charged Hintze with one count of “violation by sex offender 

of protected area,” a class A misdemeanor. See Utah Code Ann. 

§ 77-27-21.7. After the State filed this charge, however, there was 

“a mistake somewhere” on the part of the State, and as a result, 

Hintze “did not receive notice” of this charge for two years. 

Indeed, the State took no action to advance the case until 

prompted to do so by Hintze in March 2020.

¶13 By January 2020, while still in prison on Case 3226, Hintze

had finished the sex offender treatment program that corrections 

officials had asked him to complete. But at his March 2020 parole 

hearing, the Board denied his request for parole. Hintze later 

testified that “what stopped [him] from being paroled” was the 

discovery that a “warrant” had been “filed that needed to be 

adjudicated.” All parties agree that this was a reference to the 

charge in this case for the June 2016 park incident.

¶14 On March 16, 2020, just days after finally learning of the 

existence of the charge, Hintze wrote a letter to the district court 

in this case. In this letter, Hintze explained that he had “a case 

pending/warrant” and asked “to set up video court.” He also 

wrote that he could not afford an attorney “and would like to be 

appointed one.” Hintze’s initial appearance was finally held on 

June 4, 2020—some twenty-seven months after the charge was 

initially filed—and trial counsel (Counsel) appeared on his behalf 

on June 10, 2020.

¶15 Counsel’s first action was to request a preliminary hearing, 

which was held on July 8, 2020. Following the hearing, the court 

bound Hintze over for trial on the pending charge. After the 

bindover, Hintze requested discovery from the State, and then—

some five weeks after the bindover order—he filed two motions. 
State v. Hintze

20200787-CA 6 2022 UT App 117

Hintze’s Motion to Suppress

¶16 One of the motions was to suppress evidence, in which

Hintze argued that he was unconstitutionally seized before he 

gave his name to the officer. In support of his motion, Hintze 

made two principal arguments. First, he argued that he was 

seized when officers “pulled up in front of the park bench,”

“stood above him,” and “launch[ed] into accusatory questioning”

about his relationship with the teenager. Hintze argued that if he 

had “stood up to walk away” at that point, “he would have run 

into one of the three officers.” In his view, this constituted a

seizure. Second, Hintze argued that there was not reasonable 

suspicion to support a seizure at that point because “[t]here are a 

host of lawful reasons why a Hispanic adult male might sit on the 

same park bench as a White underage female.” While 

acknowledging that he gave officers shifting explanations for his 

relationship with the teenager, Hintze asserted that there was still 

not a “particularized, articulable suspicion of a crime” at that 

point because people occasionally “give inconsistent, vague, 

evasive, or equivocating answers to police questioning” and also 

because Hintze’s ultimate explanation (that he was something of 

an adopted brother) “is a fairly minimal faux pas” given that he is 

a “family friend.”

¶17 The State opposed the motion and, after a hearing, the 

court denied it. Although the court found that “[t]he officers did 

ask the individuals their age very quickly,” it concluded that “this 

[was] a casual encounter up to the point that the name [was] 

requested.” And in the court’s view, the officers had “reasonable 

articulable suspicion to investigate the relationship between 

[Hintze] and the young girl, given that [Hintze] ha[d] told the 

officer three different things regarding their relationship.” The 

court further opined that the encounter was “still a level 1 stop” 

when the officer asked Hintze for his name because the officer had 

“turn[ed] away from [Hintze], turn[ed] his back to him and 

[began] dealing with dispatch.” This, combined with the “very 
State v. Hintze

20200787-CA 7 2022 UT App 117

short” duration of the interaction, Hintze’s “casual” actions in 

continuing to snack and drink as the officers questioned him, and 

the fact that the officers had not drawn their weapons and had

used a “normal” tone of voice, led the court to conclude that 

“someone in [t]his situation” would not “feel detained.”

Hintze’s Motion to Dismiss 

¶18 Hintze’s other motion was to dismiss the charge, claiming 

that his Sixth Amendment right to a speedy trial had been 

violated. Hintze relied on the four factors set forth in Barker v. 

Wingo, 407 U.S. 514 (1972), arguing as follows:

• Factor 1 (length): Two years had elapsed since his charge 

in this case, which was “sufficient to trigger a speedy trial 

analysis.”

• Factor 2 (reason for delay): He was “not responsible for the 

delay in his prosecution.”

• Factor 3 (assertion of right): He had timely asserted his 

right to a speedy trial, beginning with his March 2020 letter 

to the court and continuing with his August 2020 motion 

to dismiss, and had done nothing to delay the proceedings. 

• Factor 4 (prejudice): He was prejudiced by the delay 

because he was “denied parole” in Case 3226 after “this 

case was filed.”

See id. at 530. 

¶19 The State also opposed this motion, and the district court 

later denied it as well. In its ruling, the court concluded that “the 

length of delay certainly trigger[ed]” a full four-factor Barker 

inquiry. With respect to those factors, the court (1) acknowledged

that there had been a two-year delay but (2) determined that the 

reason for the delay was “a somewhat neutral factor” since there 
State v. Hintze

20200787-CA 8 2022 UT App 117

was no evidence of bad faith on the part of the State. The court 

then concluded that (3) “[n]othing in [Hintze’s March 2020] letter 

. . . assert[ed] a right to a speedy trial,” though it “certainly stated 

I’d like a lawyer and I’d like to come to court.” And finally, with 

regard to prejudice, (4) the court determined that there had not

“been any prejudice to Mr. Hintze” that was not “incumbent on 

having criminal charges pending against an individual,” and it 

also concluded that the reason for Hintze’s parole denial in March 

2020 was “somewhat speculative” because it was unclear whether 

the Board would have actually granted Hintze parole at that time.

Looking at “the totality of the circumstances,” the court ruled that 

Hintze’s right to a speedy trial had not been violated.

Hintze’s Conditional Guilty Plea and Sentence

¶20 On September 21, 2020, Hintze entered a conditional guilty 

plea to the charged offense, reserving the right to appeal the 

denial of the two motions described above and agreeing to be 

sentenced that day.

¶21 When Counsel then addressed the court about the 

potential sentence, Counsel noted that Hintze had been 

incarcerated in Case 3226 while this charge was pending. Based 

on that period of incarceration, Counsel asked the court not to

impose an additional sentence here but to simply “close this case.” 

In Counsel’s view, Hintze should essentially be given “credit for 

time served.”

¶22 When the prosecutor addressed the court, she asserted that

“we’d be in a different posture” if the case had been timely 

prosecuted. Elaborating, she told the court that because Hintze 

had previously “committed crimes against minor individuals,” 

“under normal circumstances” the State “would be asking for jail 

time” in this case and that it would be asking “for it to run 

consecutive” to his sentence for Case 3226. She said that the State

would have made that request because this offense “required 
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20200787-CA 9 2022 UT App 117

some additional punishment” in light of Hintze’s history. But 

even so, she “agree[d] with Defense counsel that” because this 

case had been “pending for two years,” and because Hintze had 

been “in prison anyway” during that time, the State would not 

“ask[] for additional time in this case.” She accordingly agreed 

with the request for the court to “close the case.”

¶23 The court followed that recommendation. The court 

explained that although it had denied the speedy trial motion, it 

was “certainly . . . concerned about the failure to prosecute and 

move the case forward.” “[F]or those reasons,” the court 

concluded that it was “particularly appropriate to just simply 

close the case” and not “impos[e] any further sentence.”

ISSUE AND STANDARD OF REVIEW 

¶24 Hintze now appeals, and challenges the district court’s 

denial of his motion to dismiss, which was based on an alleged 

violation of the Sixth Amendment right to a speedy trial. 

“Whether a defendant’s right to a speedy trial has been violated 

presents a question of law, which we review for correctness.”3

State v. Steele, 2010 UT App 185, ¶ 14, 236 P.3d 161. 

3. Hintze also challenges the district court’s denial of his motion 

to suppress, which raised Fourth Amendment search and seizure 

issues. Judge Tenney discusses those issues at length in his 

dissenting opinion, and we note—for whatever it might be 

worth—that we do not take issue with Judge Tenney’s analysis in 

that regard. But because we reverse Hintze’s conviction on Sixth 

Amendment grounds—a matter upon which we do disagree with 

Judge Tenney—we need not reach Hintze’s arguments regarding 

the propriety of the court’s denial of his motion to suppress, and 

therefore do not incorporate any analysis of those arguments into 

our opinion. 
State v. Hintze

20200787-CA 10 2022 UT App 117

ANALYSIS

¶25 “The Sixth Amendment to the United States Constitution 

guarantees criminal defendants the right to a speedy and public 

trial.” State v. Thompson-Jacobson, 2022 UT App 29, ¶ 9, 508 P.3d 

604 (quotation simplified). This right is a “fundamental” one, and 

“is imposed by the Due Process Clause of the Fourteenth 

Amendment on the States.” State v. Younge, 2013 UT 71, ¶ 16, 321 

P.3d 1127 (quotation simplified). But it is also an “amorphous, 

slippery, and necessarily relative” right, Vermont v. Brillon, 556 

U.S. 81, 89 (2009) (quotation simplified), and it is one that “must 

take into account the defendant’s rights as well as the rights of 

public justice,” State v. Samora, 2022 UT App 7, ¶ 18, 504 P.3d 195 

(quotation simplified). 

¶26 In Barker v. Wingo, 407 U.S. 514 (1972), the court set forth 

the familiar four-factor framework by which we evaluate a Sixth 

Amendment speedy trial claim. Under this framework, we

consider (1) the “[l]ength of delay,” (2) “the reason for the delay,” 

(3) “the defendant’s assertion of his right,” and (4) whether there 

was “prejudice to the defendant” resulting from the delay. Id. at 

530. When assessing whether a defendant’s speedy trial right was 

violated, courts “engage in a difficult and sensitive balancing 

process.” Id. at 533. “None of the factors are necessary or 

sufficient; rather, the factors are related and should be considered 

together with other relevant circumstances.” United States v. 

Koerber, 10 F.4th 1083, 1109 (10th Cir. 2021) (quotation simplified); 

see generally Bennett v. Bigelow, 2016 UT 54, ¶ 38 n.65, 387 P.3d 1016 

(“Although we are not bound to follow precedent from the circuit 

courts of appeal on questions of federal constitutional law, the 

reasoning in these cases is persuasive . . . .”). 

A

¶27 The first Barker factor—the length of the delay—presents 

“a double enquiry.” See Doggett v. United States, 505 U.S. 647, 651 
State v. Hintze

20200787-CA 11 2022 UT App 117

(1992). The first part of this double enquiry asks whether the delay 

was long enough to even trigger a full-blown Barker analysis; 

indeed, “if the delay is not uncommonly long, the inquiry ends 

there.” See Younge, 2013 UT 71, ¶ 18 (quotation simplified). Delays 

in excess of one year are usually deemed something longer than 

mere “ordinary” delay, and thus long enough to trigger a Barker

inquiry. See Doggett, 505 U.S. at 652 & n.1; see also ThompsonJacobson, 2022 UT App 29, ¶ 10 (stating that, “as a general matter, 

a delay approaching one year is enough to trigger a speedy-trial 

inquiry” (quotation simplified)). For purposes of this inquiry, the 

clock starts running when the defendant is charged, and it stops 

running when he is tried or otherwise adjudicated. See Barker, 407 

U.S. at 533; Samora, 2022 UT App 7, ¶ 22.4 In this case, the State 

filed charges against Hintze in March 2018, but took no action in 

the matter until after March 2020, and did not complete its 

prosecution of Hintze until September 2020. This was a delay of 

over two years, and it was therefore more than enough to trigger 

the full four-factor Barker inquiry.

¶28 But the second part of the “double enquiry” is also worth a 

mention. In that part of the analysis, we must consider “the extent 

to which the delay stretches beyond the bare minimum needed to 

trigger judicial examination of the claim.” See Doggett, 505 U.S. at 

4. In this sense, because a Sixth Amendment speedy trial claim 

looks to the delay from the filing of charges through the case’s 

resolution, it is different from a claim that the government 

violated the defendant’s rights by unnecessarily delaying the 

filing of charges, which is separately analyzed under the Fifth 

Amendment’s Due Process Clause. See, e.g., State v. Hales, 2007 UT 

14, ¶ 42, 152 P.3d 321; State v. Charles, 2011 UT App 291, ¶ 22, 263 

P.3d 469. Indeed, “no Sixth Amendment right to a speedy trial 

arises until charges are pending.” United States v. MacDonald, 456 

U.S. 1, 7 (1982). Accordingly, even though the State took over two 

years to even file the charge, for purposes of our analysis we do 

not consider pre-filing time as part of the “delay” at issue. 
State v. Hintze

20200787-CA 12 2022 UT App 117

651–52. In this case, the State did nothing for two years—twice the 

length of time needed to trigger the Barker inquiry—in a relatively 

simple case that could have easily been resolved well within that 

time period. We disagree entirely with the dissent’s conclusion 

that the only time period that really matters is “the six months 

between March and September 2020.” See infra ¶ 137. The State

forgot about this case for over two years after filing it, and that 

entire time period is relevant to the speedy trial analysis. In our 

view, this first Barker factor weighs clearly in favor of Hintze.

B

¶29 The second Barker factor requires us to examine the reason 

for the delay and, specifically, “whether the government or the 

criminal defendant is more to blame for that delay.” See Doggett, 

505 U.S. at 651. This is a crucial factor; indeed, the Supreme Court 

has described this factor as “[t]he flag all litigants seek to capture.” 

See United States v. Loud Hawk, 474 U.S. 302, 315 (1986); see also

United States v. Seltzer, 595 F.3d 1170, 1177 (10th Cir. 2010) 

(referring to this factor as “especially important”). 

¶30 In this case, the blame for the initial two-year delay 

between March 2018 and March 2020 rests entirely with the State. 

In many speedy trial cases, courts must analyze whether 

particular discrete periods of delay are attributable to one side or 

the other, and must first assess whether the defendant—as some 

defendants do, see, e.g., United States v. Koerber, 10 F.4th at 1110 

(stating that the defendant “intentionally delayed his case in order 

to try and obtain a dismissal with prejudice” on speedy trial 

grounds)—was purposely attempting to delay the case. Those 

kinds of hijinks are simply not at issue here; indeed, Hintze was 

unaware of the charges until March 2020, and he played no role 

in the delay up to that point. And the record contains no 

indication that Hintze bears any responsibility for any delay in 

obtaining appointed counsel; he requested an attorney in midMarch 2020 and was appointed one in early June 2020, and not 
State v. Hintze

20200787-CA 13 2022 UT App 117

even the State suggests that this period of delay ought to be 

attributed to Hintze. After Hintze obtained counsel, the case 

proceeded relatively smoothly, without significant apparent 

delay on the part of either side. 

¶31 After concluding that the State was solely responsible for 

any delay, we must next assess whether the State’s reason for the 

delay was “deliberate, neutral, or valid.” See Thompson-Jacobson, 

2022 UT App 29, ¶ 13. “It is incumbent upon the government to 

present acceptable reasons for the delay.” United States v. 

Margheim, 770 F.3d 1312, 1326 (10th Cir. 2014). All parties here, as 

well as the dissent, agree that the State’s reason for delaying this 

case was simple negligence: the State appears to have forgotten 

about the case. And negligence is “an example of a neutral reason 

for delay.” See Thompson-Jacobson, 2022 UT App 29, ¶ 13. 

¶32 But even negligence-based neutral reasons for delay are 

weighed against the State: “Although negligence is obviously to 

be weighed more lightly than a deliberate intent to harm the 

accused’s defense, it still falls on the wrong side of the divide 

between acceptable and unacceptable reasons for delaying a 

criminal prosecution once it has begun.” Doggett, 505 U.S. at 657. 

After all, “the ultimate responsibility for such circumstances must 

rest with the government rather than with the defendant,” and 

therefore even negligence should be weighed against the State. See

Barker, 407 U.S. at 531. 

¶33 Thus, this crucial second factor weighs quite clearly against 

the State here, albeit less heavily than if there had been evidence 

of deliberate intent to harm Hintze’s defense. 

C

¶34 The third Barker factor requires examination of the 

defendant’s assertion of his right to a speedy trial. It is, of course, 

primarily the responsibility of “the courts and the prosecutors to 
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20200787-CA 14 2022 UT App 117

assure that cases are brought to trial,” but defendants bear some 

responsibility to demonstrably assert their right to a speedy trial. 

Id. at 529. Accordingly, “the defendant’s assertion of or failure to 

assert his right to a speedy trial is one of the factors to be 

considered.” Id. at 528. 

¶35 To be sure, Hintze did not file a formal motion invoking 

his right to a speedy trial until August 2020. But Hintze did not 

even know of the existence of this case until March 2020, so the 

two-year period between March 2018 and March 2020 cannot be 

held against him. Hintze obviously could not have invoked his 

right to a speedy trial during that time period. 

¶36 And starting in March 2020, as soon as Hintze learned of 

the existence of this case, he took appropriate action aimed at 

speedily moving his case along toward trial. Indeed, his first 

action was to send a pro se handwritten letter to the court on 

March 16, 2020 asking “to set up video court”—a reasonable 

request given the fresh outbreak of COVID-19 that was then 

sweeping the world—and informing the court that he could not 

“afford an attorney and would like to be appointed one.” Read 

liberally, in light of Hintze’s pro se status at the time he wrote the 

letter, what Hintze was asking for was to get his case moving 

toward resolution, through trial or otherwise. It is an indication 

that—far from trying to delay his criminal case—Hintze was 

trying to accelerate it. 

¶37 Hintze’s letter is therefore different from the pro se letter at 

issue in Thompson-Jacobson. In that case, the defendant was 

incarcerated in Nevada and sent a letter, in 2009, to the Utah court 

“requesting a motion to dismiss form, information about his case, 

and a list of all the criminal defense forms.” See 2022 UT App 29, 

¶ 5 (quotation simplified). The court forwarded a copy of the letter 

to the prosecutor’s office, but there was apparently no response to 

the defendant’s letter, and the defendant did not follow up, at 

least not until 2013 after the State began to take action on the case. 
State v. Hintze

20200787-CA 15 2022 UT App 117

Id. ¶¶ 5–6. Later, when the defendant claimed a Sixth Amendment 

violation, the court declined “to construe [the defendant’s] letter 

as an assertion of a right” to a speedy trial. Id. ¶ 16. 

¶38 In this case, Hintze did not just request “forms” and 

“information.” He specifically asked for a hearing and for a public 

defender. Those are distinct requests that are each consistent with 

a desire to get the case moving toward trial after an inexplicable 

two-year delay. And unlike the defendant in Thompson-Jacobson,

Hintze—upon being appointed counsel in June 2020—took timely 

follow-up action to invoke his right to a speedy trial: he 

immediately requested a preliminary hearing, which was held in 

July 2020, and about a month later filed his motion to dismiss on 

speedy trial grounds. Viewed with this context in mind, Hintze’s 

March 2020 pro se letter was, in our view, a clear attempt to get 

the case moving more speedily toward trial. 

¶39 We certainly acknowledge—and do not disagree with—

the dissent’s point that a defendant’s invocation of his right to a 

speedy trial should be sufficiently specific to put the State on 

notice that the right is being invoked. See infra ¶ 83. But context 

matters. See Thompson-Jacobson, 2022 UT App 29, ¶ 23 (stating that 

the four Barker factors are to be assessed in “light of all the 

circumstances”). Without a doubt, a defendant who ambiguously 

mentions only that he would like his case to move along more 

promptly, and then spends the next few months dragging his feet 

as opposed to taking actions that indicate a desire for a speedy 

trial, has clearly not done enough to specifically invoke the Sixth

Amendment’s speedy trial protections. But a pro se defendant 

who makes a request that his case—after two years of 

unexplained delay—be put on a track toward trial, and then 

quickly follows that request up with a request for a preliminary 

hearing and a specific motion invoking the Sixth Amendment, 

has taken actions that result in the third factor weighing in his 

favor. 
State v. Hintze

20200787-CA 16 2022 UT App 117

¶40 But more to the point, even if the dissent were correct that 

a defendant’s invocation of the speedy trial right—in order to 

constitute action sufficient to tilt the third Barker factor in his 

favor—has to specifically mention a “trial,” Hintze made 

precisely such an invocation here as soon as he was sure that there 

actually was going to be a trial. Recall that his first action—taken 

pro se—was to request counsel and a court hearing. His second 

action, after obtaining counsel, was to request a preliminary 

hearing, which of course is a proceeding designed to determine if 

the State’s case is strong enough to bother staging a trial. It was 

not until the preliminary hearing was over with, and the court had 

bound Hintze over for trial on the pending charge, that the 

prospect of a trial became a reality. And Hintze’s very next action 

in the case—taken just weeks after the bindover—was to file a 

motion specifically invoking his right to a speedy trial. Certainly, 

a defendant could invoke his or her right to a speedy trial even 

before a preliminary hearing is held. But it is not necessarily 

inconsistent with the exercise of the right to a speedy trial for a 

defendant to first seek a preliminary hearing to test whether there 

will even be a trial at all. 

¶41 Ultimately, this third factor is not so much about the 

granular question—What precise language did the defendant use 

in invoking the right?—as it is about the overarching one: 

“whether the defendant’s behavior during the course of the 

litigation evinces a desire to go to trial.” See United States v. 

Koerber, 10 F.4th 1083, 1110 (10th Cir. 2021). Defendants who drag 

their feet and only half-heartedly express an interest in a speedy 

trial will have this factor weighed against them. On the other 

hand, defendants who do everything they could possibly do to 

“evince[] a desire to go to trial” will have this factor weighed in 

their favor. And given the facts of this case, the arrow on this 

factor’s Weigh-O-Meter is flatlined toward Hintze’s side. 

¶42 Nothing about Hintze’s course of action was dilatory; 

indeed, there is no hint of any effort on his part to delay these 
State v. Hintze

20200787-CA 17 2022 UT App 117

proceedings or to drag his feet for a while before invoking his 

right to a speedy trial. From the moment he discovered the 

existence of this case, he tried to get the case moving toward trial, 

and from the moment he learned that there would actually be a 

trial he specifically invoked his right to have any such trial occur 

speedily. In our view, it is unreasonable to expect Hintze to have 

more emphatically or timely invoked his right to a speedy trial, 

and, under these circumstances, the third Barker factor weighs 

quite clearly in Hintze’s favor.

D

¶43 The fourth and final Barker factor requires an examination 

of the extent to which Hintze was prejudiced by the State’s delay 

in bringing the case toward trial. This factor—along with the 

second one, as noted above—is a crucial factor: although a 

“showing of prejudice may not be absolutely necessary in order 

to find a Sixth Amendment violation,” courts “have great 

reluctance to find a speedy trial deprivation where there is no 

prejudice.” See United States v. Gould, 672 F.3d 930, 939 (10th Cir. 

2012) (quotation simplified). 

¶44 In some cases, the length of delay is so egregious that 

prejudice is presumed to have occurred, and the defendant is 

relieved of any burden to demonstrate specific prejudice. See

Doggett, 505 U.S. at 655 (recognizing that “excessive delay 

presumptively compromises the reliability of a trial in ways that 

neither party can prove or, for that matter, identify,” and therefore 

concluding that “affirmative proof of particularized prejudice is 

not essential to every speedy trial claim”). When the delay 

stretches beyond four or five years, courts often presume 

prejudice. See United States v. Serna-Villareal, 352 F.3d 225, 232 (5th 

Cir. 2003) (“Indeed, this Court and others generally have found 

presumed prejudice only in cases in which the post-indictment 

delay lasted at least five years.”); see also Doggett, 505 U.S. at 655, 

657–58 (finding presumed prejudice where the delay amounted to 
State v. Hintze

20200787-CA 18 2022 UT App 117

more than eight years, six of which were attributable to the 

government). Here, though, the two-year delay at issue is not long 

enough for us to simply presume that Hintze was prejudiced by 

the State’s delay. 

¶45 Accordingly, Hintze must demonstrate actual prejudice 

caused by the State’s two-year delay in bringing this case to trial. 

“[U]nreasonable delay between formal accusation and trial” can 

cause “more than one type of harm.” See Doggett, 505 U.S. at 654. 

Typically, courts list three types of harm that are commonly 

associated with delays in prosecution of a criminal case: 

“oppressive pretrial incarceration”; “anxiety and concern of the 

accused”; and impairment of the accused’s defense, such as 

“dimming memories and loss of exculpatory evidence.” Id.

(quotation simplified). But courts have also recognized other 

related types of harm in this context, particularly in cases 

involving defendants who are already incarcerated on other 

charges. Indeed, the United States Supreme Court stated:

At first blush it might appear that a man already in 

prison under a lawful sentence is hardly in a 

position to suffer from “undue and oppressive 

incarceration prior to trial.” But the fact is that delay 

in bringing such a person to trial on a pending 

charge may ultimately result in as much oppression 

as is suffered by one who is jailed without bail upon 

an untried charge. First, the possibility that the 

defendant already in prison might receive a 

sentence at least partially concurrent with the one he 

is serving may be forever lost if trial of the pending 

charge is postponed. Secondly, under procedures 

now widely practiced, the duration of his present 

imprisonment may be increased, and the conditions 

under which he must serve his sentence greatly 

worsened, by the pendency of another criminal 

charge outstanding against him. 
State v. Hintze

20200787-CA 19 2022 UT App 117

Smith v. Hooey, 393 U.S. 374, 378 (1969). And just a few years later, 

the Court noted that “no court should overlook the possible 

impact pending charges might have on [an incarcerated 

defendant’s] prospects for parole and meaningful rehabilitation.” 

Moore v. Arizona, 414 U.S. 25, 27 (1973); see also Strunk v. United 

States, 412 U.S. 434, 439 (1973) (noting that an already-incarcerated 

individual might sustain prejudice in the form of “uncertainties in 

the prospect . . . of receiving a sentence longer than, or consecutive 

to, the one he is presently serving,” and that “other factors such 

as the prospect of rehabilitation may also be affected adversely”). 

¶46 Since then, many courts—for a variety of reasons—have 

found prejudice in cases involving already-incarcerated 

defendants. See, e.g., United States v. Seltzer, 595 F.3d 1170, 1180 

(10th Cir. 2010) (stating that the defendant was prejudiced by 

delay, because he “was denied the right to a bond hearing in state 

court” in another matter “and kept incarcerated” on that other 

matter “longer than might otherwise be necessary”); 

Commonwealth v. Rodriguez, 405 N.E.2d 124, 130 (Mass. 1980) 

(concluding that a defendant sustained Barker prejudice because 

the delay affected “his parole eligibility and [his] ineligibility for 

prison programs”); State v. Chambers, 2020 MT 271, ¶ 16, 474 P.3d 

1268 (recognizing that the defendant “was eligible for parole” in 

another county on a different charge and that the charges at issue 

“affected his parole eligibility” in the other county and rendered 

him “not able to pursue a sentence that would run concurrently 

with” the sentence he was serving in the other county); Turner v. 

State, 545 S.W.2d 133, 139 (Tex. Crim. App. 1976) (concluding that 

a defendant had shown prejudice where “he was deprived of the 

possibility of receiving a sentence at least partially concurrent 

with his federal sentence” and where “the detainer that was 

placed on him . . . may well have prejudiced his opportunity for 

clemency, pardon, [or] parole”). 

¶47 Hintze does not claim that his ultimate defense to these 

charges was impaired by the State’s delay in prosecuting the case. 
State v. Hintze

20200787-CA 20 2022 UT App 117

Nor does he claim that he was made to suffer excessive pretrial 

incarceration in this case, because he was not being held on this 

charge. Instead, he asserts that the State’s delay in prosecuting this 

case caused him to serve additional time behind bars by depriving 

him of the chance for either (a) parole in March 2020 in Case 3226, 

or (b) a chance to serve his sentence in this case concurrently with 

the sentence that had previously been imposed in Case 3226. We 

find Hintze’s arguments persuasive. 

¶48 In March 2018, at the time the charges were filed in this 

case, Hintze was incarcerated at the Utah State Prison. He had 

been sentenced to a zero-to-five-year term in August 2017 after he 

pled guilty to one count of attempted forcible sexual abuse, a 

third-degree felony. Hintze had one other previous offense—a 

2011 class A misdemeanor conviction for attempted unlawful 

sexual activity with a minor. In March 2018—about a week before 

the charges were filed in this case, and when he had served just a 

few months of his prison sentence in Case 3226—he came up for 

a parole hearing but was not granted parole; the Board scheduled 

another parole hearing for March 2020, and told Hintze that he 

needed to complete sex offender treatment in the prison. By 

January 2020, Hintze had completed the required treatment, and 

presented himself to the Board once again in March 2020; at that 

point, Hintze had served more than two-and-a-half years of his 

maximum five-year sentence. But the Board again denied his 

request for parole, this time telling him that because he had an 

outstanding unresolved criminal case—this case—he would not 

be paroled, at least not until that case was resolved. 

¶49 Hintze asserts that, if this case had been timely prosecuted 

in 2018, he would have been paroled in March 2020 in Case 3226. 

Stated another way, Hintze contends that, because of the State’s 

delay in bringing this case, he ended up serving several additional 

months in jail—from March until at least the fall of 2020—in Case 

3226. Hintze’s argument certainly has strength, and requires us to 

examine more closely both (1) the hypothetical world that would 
State v. Hintze

20200787-CA 21 2022 UT App 117

have existed had the State timely prosecuted this case, and (2) the 

precise level of causal link that is required for Hintze to 

demonstrate prejudice in this context. 

1

¶50 To assess prejudice, we must ask ourselves whether the 

State’s delay in prosecuting this case caused any harm to Hintze. 

And to meaningfully undertake that inquiry, we must compare 

what actually happened with what would have happened to 

Hintze had the State moved forward with the case in 2018. We 

acknowledge that engaging in this type of counterfactual 

hypothetical exercise necessarily entails some level of guesswork. 

But this seems definitionally bound up in any prejudice inquiry: 

after all, prejudice cannot be meaningfully assessed without some 

comparative examination of what did happen to Hintze and what 

we think would have happened to Hintze under hypothetical 

circumstances that did not actually come to pass. See State v. Ellis, 

2018 UT 2, ¶ 42, 417 P.3d 86 (declaring that “[p]rejudice analysis 

is counterfactual,” and stating that such an analysis requires 

consideration of “a hypothetical—an alternative universe in 

which” the error or event in question did not occur). 

¶51 Under the circumstances presented here, if the State had 

moved forward with prosecution of this case in a timely manner 

in 2018, Hintze would quite probably have spent less overall time 

incarcerated. There are several potential scenarios to consider.

¶52 First, we must consider the hypothetical world in which 

Hintze filed a motion to suppress in 2018—as he eventually did in 

2020—and in which that motion was granted (as Judge Tenney 

believes it should have been, a conclusion with which we do not 

disagree). Had that occurred in 2018, the State would have had to 

decide whether to dismiss the case in the interests of justice, or to 

proceed to trial with limited evidence. If the State had decided to 

dismiss the case, or if Hintze had won an acquittal at a trial in 
State v. Hintze

20200787-CA 22 2022 UT App 117

which the State could present only limited evidence, the previous 

existence of this case would not have negatively impacted 

Hintze’s chances for parole in March 2020. Hintze testified, at the 

motion to dismiss hearing, that “what stopped [him] from being 

paroled” was the presence of this unresolved case. That testimony 

stands unrebutted on the record before us. Accordingly, we have 

no evidence-based reason to believe that, if this case had been 

resolved in Hintze’s favor prior to March 2020, he would have 

been denied parole. Any contrary conclusion is based on extrarecord speculation. If we limit our analysis to what appears in the 

record before us, we have no choice but to conclude that it is more 

likely than not that, had the thing that “stopped” Hintze “from 

being paroled” been removed from the equation, Hintze would 

have been paroled. 

¶53 But even if we indulge in extra-record speculation—as is 

sometimes required by the nature of a prejudice inquiry—about 

what would have happened at the March 2020 parole hearing, it 

is clear that Hintze’s request for parole would have been far from 

frivolous under the circumstances. Indeed, we think he would 

have been a good candidate for parole, based on what we know 

about this case. By March 2020, he had served over two-and-a-half 

years in prison, more than half of his maximum sentence. He had 

successfully completed sex offender treatment, as he had been 

asked to do at his last parole hearing. And he would have had no 

unresolved criminal cases. At that point, we can certainly envision 

corrections officials deciding to free up a bed at the prison by 

affording Hintze an opportunity to demonstrate, under 

supervision in the community, that he could use the tools he 

learned in his recent treatment program. Indeed, under those 

circumstances, we think it quite probable that Hintze would have 

been granted parole. It is, of course, possible to speculate 

otherwise. But we find it reasonably probable that, had this case 

been resolved in Hintze’s favor in 2018, he would have been 

afforded the opportunity for parole in March 2020. 
State v. Hintze

20200787-CA 23 2022 UT App 117

¶54 And that conclusion does not change even if we assume, 

for the purposes of the discussion, that the motion to suppress 

would have been denied in 2018 (as it was in reality). In that 

alternative scenario, it remains very likely that the case would 

have been resolved—likely through a plea—well prior to March 

2020. And even if Hintze had pled guilty to (or been convicted of) 

the misdemeanor charge following the denial of his suppression 

motion, his overall time behind bars would likely not have been 

materially affected. 

¶55 Let’s start with the uncontroversial proposition that, if this 

case had been a standalone case involving a defendant who was

not already incarcerated in another case, the defendant would 

likely have received a relatively light sentence. The crime, after 

all, involved a man sitting on a park bench with a teenage family 

friend; there were no allegations of other improper behavior. 

Recall that, in reality, the judge sentenced Hintze to no additional 

jail time, and simply closed the case. To be sure, the State 

indicated at sentencing that, “under normal circumstances,” it 

would have asked for at least some “jail time” as opposed to 

simply closing the case. But in our standalone-case scenario, we 

do not find it likely that a judge would have ordered the 

defendant to spend more than thirty to sixty days behind bars. 

¶56 Hintze’s situation was different, of course, because he was 

already in prison on Case 3226. Because of that, a hypothetical 

2018 sentencing judge might very well have decided to just 

sentence Hintze to the maximum indeterminate sentence—up to 

365 days behind bars, to be served in the prison where Hintze was 

already being housed—and then asked the parties for input on 

whether the sentence should be imposed concurrently with, or 

consecutively to, the sentence Hintze was already serving in Case 

3226. We know that the State would have asked for the sentence 

to “run consecutive” to the prison sentence Hintze was already 

serving. We imagine the defense would have asked for concurrent 

sentences. And we think, in all likelihood, the sentencing judge 
State v. Hintze

20200787-CA 24 2022 UT App 117

would have imposed concurrent sentences. But ultimately, 

whether the judge imposed concurrent or consecutive sentences 

would not likely have mattered much to Hintze’s overall time 

behind bars, because there is no indication either in the record 

before us or in our own understanding of the situation that the 

outcome of that sentencing conundrum would have had much 

effect on Hintze’s parole eligibility. 

¶57 As we understand it, had Hintze been ordered to serve a 

concurrent sentence, his presumptive total maximum prison 

sentence would have been increased by 36.5 days (10% of the 

shorter sentence), meaning that he would have been facing a 

prison sentence of zero-to-5.1 years (instead of zero-to-five years). 

See Adult Sent’g & Release Guidelines 26 (Utah Sent’g Comm’n 2021)

(stating that, for concurrent sentences, “10% of the shorter 

sentence [will be] added to the full length of the longer sentence”). 

And had Hintze been ordered to serve consecutive sentences, his 

total maximum prison sentence would have been increased by 146 

days (40% of the shorter sentence), meaning that he would have 

been facing a prison sentence of zero-to-5.4 years (instead of zeroto-five years). See id. (stating that, for consecutive sentences, “40% 

of the shorter sentence [will be] added to the full length of the 

longer sentence”). There is nothing in the record to indicate that

these slight increases in Hintze’s presumptive maximum sentence 

would have had any negative impact on Hintze’s parole eligibility 

or the scheduling of parole hearings. In all likelihood, Hintze 

would still have been scheduled for a hearing in March 2020. 

¶58 The question, then, is whether—in our hypothetical 

universe—Hintze would have been paroled at that hearing. We 

have already explained why we think Hintze would probably 

have been paroled in March 2020 if this case had been earlier 

resolved in his favor. And we do not think the outcome of that 

March 2020 parole hearing would have been any different if he 

had pled guilty to this misdemeanor count in 2018. He still would 

have been a good candidate for parole. He still would have
State v. Hintze

20200787-CA 25 2022 UT App 117

completed sex offender treatment and served roughly half of his 

maximum sentence. And he still would have been in a position 

where corrections officials would likely have wanted to see how 

he would perform under supervision in the community before 

their ability to supervise him expired. 

¶59 As noted, one can certainly speculate in the opposite 

direction, as the dissent does. See infra ¶¶ 118–120. But our 

speculation is at least as solid as the dissent’s; indeed, as we see it, 

it is at least reasonably probable that, under the specific 

circumstances presented here, Hintze would have been afforded 

the opportunity for parole in March 2020 if this case had been 

resolved in 2018. And since Hintze was not, in actuality, released 

from prison until at least the fall of 2020, Hintze has made a 

credible showing that he spent additional time behind bars as a 

result of the State’s delay in prosecuting this case. Additional time 

spent incarcerated, if proven, counts as actual prejudice for 

purposes of the Barker analysis. See Barker, 407 U.S. at 532 (listing 

“oppressive pretrial incarceration” as one of the types of harm 

commonly associated with delays in bringing a case to trial). 

2

¶60 We recognize, of course, that a defendant’s right to a 

speedy trial is not violated if his claims of prejudice are 

“insubstantial, speculative, and premature.” See United States v. 

Ewell, 383 U.S. 116, 122 (1966). In this vein, courts have 

emphasized that a defendant in this situation must demonstrate 

more than the “mere possibility” of prejudice. See United States v. 

Vaughan, 643 F. App’x 726, 732 (10th Cir. 2016) (stating that 

the “mere possibility of prejudice is not sufficient to support 

the position that . . . speedy trial rights were violated” (quotation 

simplified)); see also United States v. Butner, 350 F. Supp. 3d 

1036, 1043 n.1 (D.N.M. 2018) (holding that the “mere possibility 

of a concurrent sentence is too speculative to constitute 

prejudice”).
State v. Hintze

20200787-CA 26 2022 UT App 117

¶61 But while it is clear that a “mere possibility of prejudice” is 

too speculative, relatively little has been written with regard to 

what the actual causal standard is in this context. And there are 

several different possible causal standards. Some courts have held 

that defendants can demonstrate prejudice in this context if they

can show a “reasonable possibility of prejudice,” which is 

presumably a higher standard than a “mere” possibility of 

prejudice. See Tribble v. United States, 447 A.2d 766, 772 (D.C. 1982)

(concluding that the defendant had failed to show a “reasonable 

possibility of prejudice” resulting from the delay); State v. 

Campbell, 662 P.2d 1149, 1155 (Idaho Ct. App. 1983) (requiring a 

defendant to “make a showing of reasonable possibility of 

prejudice”); State v. Johnson, 167 S.E.2d 274, 283 (N.C. 1969)

(finding prejudice due to a “reasonable possibility of prejudice” 

because of the defendant’s lost chances to seek concurrent 

sentencing and earlier parole); State v. Ivory, 564 P.2d 1039, 1044 

(Or. 1977) (citing U.S. Supreme Court authority and deeming it 

“proper to adopt the rule” in which “the prejudice factor is met if 

the evidence taken as a whole shows some reasonable possibility 

of prejudice”); see also Moore v. Arizona, 414 U.S. 25, 27 (1973) 

(instructing courts not to “overlook the possible impact pending 

charges might have on [a defendant’s] prospects for parole” 

(emphasis added)); Woody v. United States, 370 F.2d 214, 219 (D.C. 

Cir. 1966) (stating that the defendant must produce a “plausible” 

claim of prejudice to succeed in a speedy trial claim); State v. 

Edwards, 750 S.W.2d 438, 442 (Mo. 1988) (stating that the level of 

prejudice sufficient to “require reversal” in the speedy trial 

context is “actual prejudice apparent on the record or by 

reasonable inference—not speculative or possible prejudice” 

(quotation simplified)). 

¶62 In other familiar contexts, including the Sixth Amendment 

context involving ineffective assistance of counsel claims, we 

require defendants to show a “reasonable probability of a 

different outcome.” See State v. Garcia, 2017 UT 53, ¶¶ 36, 44, 424 

P.3d 171 (stating that, in the ineffective assistance of counsel 
State v. Hintze

20200787-CA 27 2022 UT App 117

context, a defendant must show “a reasonable probability of a 

different outcome” in order to demonstrate prejudice); Tillman v. 

State, 2005 UT 56, ¶ 29, 128 P.3d 1123 (stating that, in the context 

of a prosecutor’s failure to disclose exculpatory material, a 

defendant, to demonstrate prejudice, must show “a reasonable 

probability that, had the evidence been disclosed to the defense, 

the result of the proceeding would have been different”); see also

State v. Richardson, 2013 UT 50, ¶ 40, 308 P.3d 526 (stating that 

errors in interpreting rules of evidence require reversal when 

“there is a reasonable likelihood that the verdict would have been 

different” (quotation simplified)). The “reasonable probability” 

standard is of course more demanding than a “reasonable 

possibility” standard, but—at least in the prosecutorial disclosure 

context—it has sometimes been described as less demanding than 

the familiar “more likely than not” standard, see Tillman, 2005 UT 

56, ¶ 29 n.7, which is of course another possible standard that 

could be applied in the Barker speedy trial context. 

¶63 In our view, it makes the most sense to apply, in this 

context, the same standard that we apply in other similar contexts: 

the “reasonable probability” standard. Utah courts are familiar 

with that standard, and a robust body of case law exists setting 

out the contours of what a defendant must show to meet it. 

¶64 Applied to the speedy trial context, this means that a 

defendant—in cases where the causal link for prejudice is at 

issue—must demonstrate at least a reasonable probability that he 

or she sustained actual prejudice as a result of the State’s failure

to prosecute the case in a timely manner. This standard can 

readily be applied to all types of Barker prejudice. See Barker, 407 

U.S. at 532 (identifying three “interests of defendants” that “the 

speedy trial right was designed to protect”: “oppressive pretrial 

incarceration,” “anxiety and concern of the accused,” and 

impairment of the defense’s case). In an “impairment of defense” 

situation, for example, a defendant must not only show that a 

witness or other evidence has been rendered unavailable by the 
State v. Hintze

20200787-CA 28 2022 UT App 117

State’s delay, but also that the missing evidence would have been 

important enough to the trial to make a different outcome 

reasonably probable. In an “anxiety and concern” situation, 

defendants need to show more than simply that they suffered

from anxiety; they need to show that it is reasonably probable that 

the anxiety was caused by the State’s delay rather than by some 

other preexisting issue. 

¶65 Similarly, as applied to a “pretrial incarceration” situation, 

defendants need to show that any claimed additional 

incarceration was causally linked to the State’s delay. In the 

typical situation, in which a defendant is incarcerated on the case 

in question, the showing is often easily made (and may sometimes 

simply be assumed). But where a defendant is already 

incarcerated on another charge, it will usually be far from obvious 

that the defendant’s incarceration is due to the State’s delay in 

prosecuting the case in question rather than simply to the 

sentence the defendant was already serving; in such situations, 

defendants need to show a causal link between the State’s delay 

and any claimed additional jail time. And defendants can make 

that showing by demonstrating that it is reasonably probable that 

any additional incarceration was due to the State’s delay on the 

case in question rather than to another ground. 

¶66 In this context, our supreme court has often stated that “a 

reasonable probability is a probability sufficient to undermine our 

confidence in the outcome.” See State v. Grunwald, 2020 UT 40, 

¶ 22, 478 P.3d 1 (quotation simplified). And in this case, our 

confidence in the outcome of the March 2020 parole proceeding—

where the thing that “stopped” Hintze “from being paroled” was 

the existence of this outstanding case—is undermined. After 

considering everything we know about the situation, we find it at 

least reasonably probable that, had the State timely prosecuted 

this case in 2018 as it should have, Hintze would have been 

paroled in March 2020, and that therefore Hintze ended up 

serving additional time behind bars as a result of the State’s 
State v. Hintze

20200787-CA 29 2022 UT App 117

delay—time that he would not have served if the State had 

prosecuted this case promptly. 

¶67 This is, of course, a conclusion based in part on educated 

guesswork. One can—and the dissent certainly has, see infra

¶¶ 108–120—certainly spin a scenario or two (also, of course, 

based on guesswork) in which that would not have been the case. 

And we recognize that sentencing judges and parole boards have 

wide discretion in imposing sentences and in granting parole. For 

precisely this reason, in many cases in which a defendant claims 

prejudice from something like a lost chance at parole or a 

concurrent sentence, the defendant’s claims may be too 

speculative to credit. See, e.g., United States v. Nixon, 919 F.3d 1265, 

1275 (10th Cir. 2019) (stating that the defendant’s “theory of 

prejudice . . . rests on speculation”). But that does not mean that 

all such claims are too speculative to credit. In some cases—like 

this one—the claim will be sufficiently supported by the facts of 

the case, by reasonable inferences to be drawn therefrom, and by 

common experience, and will therefore rise above mere 

speculation. Indeed, on the facts presented here, we consider it 

more speculative to conclude that Hintze was not prejudiced than 

to conclude that he was. Stated another way, we consider it at least 

reasonably probable that Hintze sustained actual prejudice in the 

form of longer incarceration as the result of the State’s delay. And 

this is sufficient. Accordingly, the important fourth Barker factor 

also weighs, at least to some extent, in Hintze’s favor. 

E

¶68 Our final task is to balance the four factors. But we need 

not linger very long at this task, because all four factors weigh in 

Hintze’s favor. Under these circumstances, the Barker balancing 

test comes out quite clearly in Hintze’s favor, and compels us to 

conclude that Hintze’s constitutional right to a speedy trial was 

violated here. 
State v. Hintze

20200787-CA 30 2022 UT App 117

¶69 As discussed above, in our view it is reasonably probable 

that Hintze sustained prejudice—additional incarceration—as a 

result of the State’s delay in prosecuting this case. But even if the 

result of the prejudice analysis had been somewhat less clear, the 

balancing test would still have come out in Hintze’s favor. The 

first three factors—including the important second factor 

regarding who is to blame for the delay—all weigh clearly in 

Hintze’s favor. And where that is the case, Hintze should win the

balancing test unless the prejudice analysis points convincingly 

toward an absence of prejudice. See, e.g., United States v. Brown, 

169 F.3d 344, 351 (6th Cir. 1999) (stating that the “amount of 

prejudice that the defendant must show depends on the reasons 

for the delay”); United States v. Lonich, 23 F.4th 881, 896–97 (9th 

Cir. 2022) (stating that the “amount of prejudice required to 

trigger a Speedy Trial Clause violation is inversely proportional 

to the length and reason for the delay” (quotation simplified)). 

Stated another way, given the fact that the first three Barker factors 

so clearly line up in Hintze’s column, he should win the overall 

balancing test even if one were to conclude that the prejudice 

question was kind of a close one. See Barker, 407 U.S. at 533 (stating 

that “none of the four factors” are dispositive, and that courts 

should “engage in a difficult and sensitive balancing process . . . 

carried out with full recognition that the accused’s interest in a 

speedy trial is specifically affirmed in the Constitution”). As 

demonstrated by the amount of ink spilled on this issue in this 

opinion, the prejudice question here is at least that. 

CONCLUSION

¶70 Accordingly, we reverse the district court’s order denying 

Hintze’s motion to dismiss and remand this case with instructions 

for the district court to dismiss the charge. 
State v. Hintze

20200787-CA 31 2022 UT App 117

TENNEY, Judge (dissenting):

¶71 In the above opinion, the majority holds that Chad Hintze’s 

Sixth Amendment right to a speedy trial was violated, thus 

necessitating the dismissal of the charge. I respectfully dissent 

from that decision. As I explain below in Part I, while the State 

admittedly took two years to prosecute Hintze, the delay was an 

inadvertent mistake (as opposed to being an act of intentional 

delay), the case was resolved within weeks of the time that Hintze 

first asserted his right to a speedy trial, and, most importantly, 

Hintze has not demonstrated that he suffered any actual 

prejudice from the delay. Under these circumstances, I don’t 

believe that Hintze’s constitutional right to a speedy trial was 

violated. I would therefore affirm the district court’s denial of that 

motion.

¶72 Because I would affirm that denial, I would then reach the 

other issue that Hintze has raised on appeal: whether the district 

court should have granted his motion to suppress. On that, I agree 

with Hintze. As I explain in Part II, I believe that officers seized 

Hintze before they developed reasonable suspicion that any 

criminal activity was afoot. I would therefore reverse the district 

court on that basis and remand for further proceedings.

I. Sixth Amendment Right to a Speedy Trial

¶73 The Sixth Amendment right to a speedy trial is 

“amorphous, slippery, and necessarily relative.” Vermont v. 

Brillon, 556 U.S. 81, 89 (2009) (quotation simplified). When a 

defendant claims that his right to a speedy trial was violated, 

courts assess the claim by balancing four factors: (1) the “[l]ength 

of delay,” (2) “the reason for the delay,” (3) “the defendant’s 

assertion of his right,” and (4) whether the delay caused 

“prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 

(1972).
State v. Hintze

20200787-CA 32 2022 UT App 117

¶74 In Part I.A, I’ll first discuss how I believe each factor should 

be assessed in this case. In Part I.B, I’ll then discuss how I would 

balance the factors in this case. As explained there, I don’t believe 

that Hintze’s speedy trial right was violated under the 

circumstances of this case.

A. The Barker factors

1. Length of the delay

¶75 The first Barker factor looks at the length of the delay. “The 

length of the delay is to some extent a triggering mechanism. If 

the delay is not uncommonly long, the inquiry ends there.” State 

v. Younge, 2013 UT 71, ¶ 18, 321 P.3d 1127 (quotation simplified). 

If it is, however, courts then consider all of the factors. See Doggett 

v. United States, 505 U.S. 647, 652 n.1 (1992). While the length of 

delay that will provoke a full “speedy-trial inquiry is necessarily 

dependent upon the peculiar circumstances of the case,” “as a 

general matter, a delay approaching one year is enough to trigger 

a speedy-trial inquiry.” State v. Thompson-Jacobson, 2022 UT App 

29, ¶ 10, 508 P.3d 604 (quotation simplified). 

¶76 Here, Hintze was charged in March 2018, and he pleaded 

guilty in September 2020. This was a delay of over two years, and 

it was therefore more than enough to trigger the full four-factor 

inquiry.

2. Reason for the delay

¶77 The second Barker factor looks to “whether the government 

or the criminal defendant is more to blame for that delay.” 

Doggett, 505 U.S. at 651. This court has previously explained that 

the reasons for delay can be classified as “deliberate, neutral, or 

valid.” Thompson-Jacobson, 2022 UT App 29, ¶ 13; accord Barker, 407 

U.S. at 531 (recognizing the “different weights” of various reasons 

for delay, including the “more neutral reason” of the State’s 

“negligence or overcrowded courts”); Younge, 2013 UT 71, ¶ 19 
State v. Hintze

20200787-CA 33 2022 UT App 117

(recognizing that “there are more neutral reasons for delay”). 

Although neutral reasons for delay are “weighted less heavily” 

than deliberate ones, they still weigh against the State because the 

“ultimate responsibility for such circumstances must rest with the 

government rather than with the defendant.” Barker, 407 U.S. at 

531; see also Doggett, 505 U.S. at 657.

¶78 Here, the prosecutor explained that there was “a mistake 

somewhere” that caused the delay. Hintze agreed with this 

characterization in his appellate brief, and he has never argued 

that the State made any deliberate effort to delay the case. 

Moreover, once this mistake was discovered, the case moved 

forward relatively quickly: Hintze learned of the outstanding 

charges in March 2020, he was appointed counsel in June 2020, the 

parties fully litigated two potentially dispositive defense motions 

in August and September 2020, and the case was resolved by way 

of a plea in September 2020.

¶79 Thus, this case falls under the neutral category of reasons 

for the delay. See Thompson-Jacobson, 2022 UT App 29, ¶ 13. So 

while this factor does weigh against the State, it does so less 

heavily than it would if there had been a showing of deliberate 

delay by the State.

3. Assertion of the speedy trial right

¶80 The third factor considers the “defendant’s assertion of his 

right” to a speedy trial. Barker, 407 U.S. at 530. Such an inquiry is 

appropriate because while the “primary burden” is “on the courts 

and the prosecutors to assure that cases are brought to trial,” a 

defendant still “has some responsibility to assert a speedy trial 

claim.” Id. at 529. And like the other Barker factors, this factor is 

analyzed in “light of all the circumstances.” Thompson-Jacobson, 

2022 UT App 29, ¶ 23.
State v. Hintze

20200787-CA 34 2022 UT App 117

¶81 This factor hasn’t received much attention in past Utah 

appellate decisions. Other courts that have looked at it, however, 

have recognized (persuasively, I think) that this factor turns on 

whether and when “the government and the court were put on 

notice that a defendant has asserted his right to a speedy trial.” 

United States v. Black, 918 F.3d 243, 263 (2d Cir. 2019) (quotation 

simplified); accord United States v. Battis, 589 F.3d 673, 681 (3d Cir. 

2009) (focusing on whether the defendant made “a reasonable 

assertion of the right so as to put authorities on notice of his Sixth 

Amendment claim” (quotation simplified)); State v. Buckner, 738 

S.E.2d 65, 72 (Ga. 2013) (holding that a defendant must “put the 

government on notice that he would prefer to be tried as soon as 

possible” (quotation simplified)).

¶82 It makes sense that this factor should turn on notice of this 

particular kind of request. Once the defendant informs the State 

that he is asserting his right to a speedy trial, the State knows that 

it must act expeditiously to bring the case to trial, lest it potentially 

be on the hook for a speedy trial violation. But in a similar vein, 

by making such a request, the defendant is also informing the 

court that he’s desirous to move forward to trial, which then acts 

as something of an assurance that the defendant will now do his 

part to move the case toward a prompt and final resolution.5

5. This is why the analysis of the third Barker factor isn’t limited to 

when the defendant asserted the right. Rather, it also takes into 

account “whether the defendant’s behavior during the course of 

litigation” actually “evince[d] a desire” to “go to trial.” United 

States v. Koerber, 10 F.4th 1083, 1110 (10th Cir. 2021) (quotation 

simplified); see also Barker v. Wingo, 407 U.S. 514, 521 (1972) 

(“Delay is not an uncommon defense tactic.”). If a defendant has 

asserted his right to a speedy trial but then acts to delay that trial, 

he accordingly does not receive the benefit of this factor. See, e.g.,

State v. Samora, 2022 UT App 7, ¶ 29, 504 P.3d 195 (the third factor 

(continued...)
State v. Hintze

20200787-CA 35 2022 UT App 117

¶83 But because this factor largely hinges on when the 

defendant provided the State and the court with such notice, the 

defendant’s action must be sufficiently specific. In this sense, the 

defendant’s “speedy-trial demand” should be “unambiguous.” 

Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013). Or, to 

put it differently, a “defendant invoking his speedy trial right 

must do so in a manner concretely enough to put the government 

on notice that he would prefer to be tried as soon as possible.” 

Labbee v. State, 869 S.E.2d 520, 532 (Ga. Ct. App. 2022) (quotation 

simplified). And while this might not require the talismanic 

utterance of a particular phrase, “at the very least, a defendant 

should manifest his desire to be tried promptly.” United States v. 

Duran-Gomez, 984 F.3d 366, 378 (5th Cir. 2020) (quotation 

simplified).

¶84 Our recent decision in in State v. Thompson-Jacobson, 2022 

UT App 29, 508 P.3d 604, illustrates this. There, a pro se defendant 

wrote a letter to the court requesting “a motion to dismiss form, 

information about his case, and a list of all the criminal defense 

forms.” Id. ¶ 5 (quotation simplified). A speedy trial issue later 

arose on appeal, and the inquiry partially turned on whether this 

letter qualified as an assertion of the speedy trial right. We 

“acknowledge[d] the difficulty faced by” a pro se defendant “in 

asserting his right to a speedy trial without the assistance of 

counsel.” Id. ¶ 16. But even so, we concluded that “those 

did not weigh in the defendant’s favor because “it was almost 

exclusively [the defendant] who delayed the trial”); State v. Miller, 

747 P.2d 440, 443 (Utah Ct. App. 1987) (the delay was not 

“weighed heavily against the” State where the defendant’s own 

“antics” caused delays in prosecution); Koerber, 10 F.4th at 1109–

10 (the third factor “weigh[ed] heavily” against the defendant 

because, although he had asserted the right to a speedy trial, he 

then “requested several continuances and deadline extensions,” 

behavior that was “hardly characteristic of a desire for a speedier 

process”).
State v. Hintze

20200787-CA 36 2022 UT App 117

difficulties” did “not allow us to construe” the letter “as an 

assertion of a right that was neither mentioned nor alluded to.” Id.

We further held that it “would set poor precedent” to “imply that 

any ex-parte communication with the court” that merely 

“indicat[es] a desire to move forward with the prosecution”

qualifies as an assertion of the right to a speedy trial. Id. (quotation 

simplified).

¶85 I believe that the same core defect exists here too. Hintze 

asks us to construe his March 2020 letter as an assertion of his right 

to a speedy trial. In that letter, Hintze provided the district court 

with his identifying information, his location in jail, and the case 

number for the pending charge in this case. Hintze also asked the 

court to appoint him an attorney, and he further said that he 

“would like to set up video court.” But Hintze did not request a 

trial, let alone a speedy trial, nor did he cite or somehow invoke 

the Sixth Amendment. Because of this, I don’t see anything in this 

letter that would have put the State and the court on notice that 

Hintze was invoking this specific right, as opposed to making a 

request to, in the words of Thompson-Jacobson, “move forward 

with the prosecution” in some undefined or more general way. Id.

(quotation simplified).

¶86 The majority holds otherwise, choosing to “[r]ead” the 

letter “liberally” and concluding that Hintze was asking the court 

“to get his case moving toward resolution, through trial or 

otherwise.” Supra ¶ 36 (emphases added); see also supra ¶ 38 

(construing the letter as evincing “a desire to get the case moving 

toward trial” (emphasis added)). But Hintze never said anything 

in that letter about requesting a “trial,” let alone a speedy one, nor 

did he say anything about being ready or willing to promptly 

“resolve” the case as a whole. All that Hintze said was that he 

wanted “counsel” and “video court.”

¶87 I’m cognizant of the fact that Hintze was pro se at this 

point. But even so, I just don’t know what Hintze meant by “video 
State v. Hintze

20200787-CA 37 2022 UT App 117

court.” Since nothing had yet happened in the case, and since 

Hintze was requesting counsel in that same paragraph, I think the 

most natural reading is that he was asking for something akin to 

a scheduling conference or even an initial appearance (which, 

after all, is where courts would typically appoint counsel). To be 

fair, maybe he did mean to ask for something more. But if he did, 

he certainly didn’t say what, exactly, it was that he was asking for.

¶88 This is why I part ways with the majority about how to 

assess Hintze’s letter. The majority places great emphasis on its 

view that by requesting “counsel” and “video court,” Hintze “was 

trying to accelerate” the case. Supra ¶ 36. And when discussing 

what Hintze did after writing this letter, the majority makes much 

of the fact that Hintze requested a preliminary hearing a short 

time later. See supra ¶ 40.

¶89 But a criminal case has many steps, and for case-specific or 

idiosyncratic reasons, a particular defendant might want to 

“accelerate” the case and get to or through some of the case’s 

earlier steps without ever wanting to get to the final step of a trial, 

let alone speedily. A previously unrepresented defendant might 

want a hearing so that the court can appoint counsel, and he might 

want counsel even if he has no desire to ever go to trial. He might 

also want a preliminary hearing in the hopes that the court will 

dismiss the charges, thereby sparing him the prospect of going to 

trial; and even if he suspects that some of the charges will survive 

the preliminary hearing, he might still want that preliminary 

hearing because of the potential strategic benefits that would 

come from testing the State’s case or from whittling down the 

number of pending charges. And a defendant might also want to 

file motions for reasons that have nothing to do with moving 

forward to trial. The Tenth Circuit’s recent decision in United 

States v. Koerber, 10 F.4th 1083, 1009 (10th Cir. 2021), provides an 

example of this, where the defendant filed numerous and lengthy 

motions in support of his effort to “intentionally delay[] his case.” 

(Quotation simplified.)
State v. Hintze

20200787-CA 38 2022 UT App 117

¶90 But Barker’s third factor doesn’t turn on the defendant’s 

mere participation in the pretrial process. Barker was much more 

specific: the Court directed courts to consider the “defendant’s 

assertion of his speedy trial right.” 407 U.S. at 531. This is a 

particular right that has a particular source and a particular 

meaning, and I think that Barker meant what it said. So to gain the 

benefit of this factor, I believe that a defendant must do something 

that puts the court and the State “on notice that he would prefer 

to be tried as soon as possible.” Labbee, 869 S.E.2d at 532 (emphasis 

added). While I respect where my colleagues are coming from, I 

don’t believe that requests for “counsel” or “video court” or even 

a preliminary hearing (which is, of course, a decidedly different 

thing than a trial) are individually or collectively the same as a 

request for a speedy trial.

¶91 By treating these as being the functional equivalent 

anyway, I’m worried that the majority risks watering this factor 

down so much that it will lose its intended and independent 

meaning. In District of Columbia v. Cruz, 828 A.2d 181 (D.C. 2003), 

the D.C. Court of Appeals expressed a similar concern in a slightly 

different context. There, local defense attorneys had a practice of 

“generally assert[ing] the constitutional rights of defendants at 

arraignment hearings,” and the issue on appeal was whether such 

an assertion qualified as an assertion of the right to a speedy trial 

for purposes of the Barker test. Id. at 183. The court of appeals held 

that it didn’t, explaining that “if such a generalized assertion of all 

constitutional rights were sufficient, this prong of the test would 

be meaningless.” Id. The court instead insisted that, for purposes 

of this factor, “a defendant must make a specific assertion of a 

speedy trial violation.” Id. Like the D.C. Court of Appeals, I would 

require something more specific too.

¶92 In my view, Hintze didn’t invoke the right until August 

2020, which was when he filed his motion to dismiss based on the 

State’s alleged failure to speedily try him. I believe that we should 
State v. Hintze

20200787-CA 39 2022 UT App 117

therefore regard August 2020, not March 2020, as the operative 

date for purposes of the third Barker factor.

¶93 This leaves the final question, which is how to assess this 

factor. As an initial matter, and at the risk of stating what should 

be obvious, I don’t believe that we can hold it against Hintze that 

he didn’t assert the speedy trial right from the filing of the charge 

in March 2018 until March 2020, given that Hintze didn’t yet 

know about the charge during that entire period. See generally

Thompson-Jacobson, 2022 UT App 29, ¶ 23 (holding that this factor 

is analyzed in “light of all the circumstances”). I also don’t believe 

that Hintze’s failure to assert the right from March 2020 to June 

2020 should be counted against him, and this is so because he 

didn’t yet have counsel. See Barker, 404 U.S. at 529 (recognizing a 

difference between a defendant who “knowingly fails to object” 

on speedy-trial grounds and “a situation in which no counsel is 

appointed”).

¶94 What we’re left with, then, is this: Hintze’s counsel was 

appointed in June 2020, and he asserted the right in August 2020. 

I agree that this was a relatively prompt assertion of the right. For 

reasons I discuss more fully below in Part I.B, however, I don’t 

believe that, under the particular circumstances of this case, this 

factor ultimately compels us to conclude that Hintze’s speedy trial 

right was violated.

4. Prejudice

¶95 The fourth Barker factor looks at whether there was 

“prejudice to the defendant.” Barker, 407 U.S. at 530.

¶96 For this factor to weigh in favor of the defendant, the 

defendant must make a “persuasive allegation that prejudice 

resulted from the delay.” State v. Stilling, 770 P.2d 137, 143 (Utah 

1989). As explained by the Supreme Court, the mere “possibility 

of prejudice” is generally insufficient. United States v. Loud Hawk,
State v. Hintze

20200787-CA 40 2022 UT App 117

474 U.S. 302, 315 (1986); accord Jackson v. Ray, 390 F.3d 1254, 1264 

(10th Cir. 2004). In State v. Mejia, 2007 UT App 337, ¶ 14, 172 P.3d 

315, we therefore faulted the defendant for providing “no factual 

support” for his prejudice argument. And in a string of cases, the 

Tenth Circuit has likewise held that a defendant must “show 

definite and not speculative prejudice” to gain the benefit of this 

factor. See, e.g., Koerber, 10 F.4th at 1110; United States v. Medina, 

918 F.3d 774, 782 (10th Cir. 2019); United States v. Madden, 682 F.3d 

920, 929 (10th Cir. 2012).

¶97 It’s therefore understood that in most cases, the defendant 

must show actual prejudice to gain the benefit of this factor. But 

there’s an exception to that requirement: namely, in cases of 

“excessive delay,” some forms of prejudice can be presumed. 

Doggett, 505 U.S. at 655; see also Thompson-Jacobson, 2022 UT App 

29, ¶¶ 21–22. I don’t see any authority suggesting that a two-year 

delay qualifies as “excessive” for purposes of this inquiry,

however, so I don’t believe that Hintze is entitled to the 

presumption of prejudice. As a result, to claim the benefit of this 

factor, Hintze must demonstrate that this delay actually 

prejudiced him.

¶98 When assessing claims of speedy trial prejudice, courts 

commonly look to the three interests that the right was “designed 

to protect.” Barker, 407 U.S. at 532. These interests are: “(i) to 

prevent oppressive pretrial incarceration; (ii) to minimize 

anxiety and concern in the accused; and (iii) to limit the possibility

that the defense will be impaired.” Id.; see also Thompson-Jacobson,

2022 UT App 29, ¶ 18. “Of these, the most serious is the last.” State 

v. Cornejo, 2006 UT App 215, ¶ 33, 138 P.3d 97 (quotation 

simplified).

¶99 In this case, Hintze doesn’t argue that his defense was 

“impaired” by the delay. To the contrary, he acknowledges in his 

brief that he is not making such an argument. He has therefore 
State v. Hintze

20200787-CA 41 2022 UT App 117

conceded “the most serious” of the interests that are typically at 

issue in a speedy trial prejudice analysis. Id.6

¶100 Hintze instead focuses on the two other protectible 

interests, arguing that the delay in prosecuting him caused both 

“oppressive pretrial incarceration” and unwarranted “anxiety.” 

But under the unique circumstances of this case, Hintze faces a 

daunting hurdle: during the entire period in which this case was 

pending, Hintze was incarcerated because of his unrelated 

conviction in Case 3226.

¶101 This must matter. After all, if a defendant “was 

incarcerated for a separate offense during the delay,” “as a 

practical matter,” his existing incarceration will typically impair 

his ability to show that a delay in prosecuting him for another 

offense was the actual source of any “oppressive pretrial 

incarceration” or anxiety based on his incarceration. West v. 

Symdon, 689 F.3d 749, 753 (7th Cir. 2012). So here, while there was 

indeed a two-year delay in bringing Hintze to trial in this case, 

Hintze still needs to show how this delay (as opposed to the effects 

of his incarceration in the unrelated Case 3226) actually caused 

him any oppressive incarceration or anxiety. And on the anxiety 

front, Hintze’s burden is further complicated by his own 

admission that he didn’t even know about this charge until March 

2020. Having had no knowledge about this case until then, Hintze 

could not have suffered any anxiety from this case until, at the 

very earliest, March 2020.

6. I acknowledge that there might be some circumstances in which 

an already-incarcerated defendant might be able to make an 

impairment-of-defense claim (such as when he can show that 

there was a loss of evidence in the meantime). But as noted, Hintze 

makes no such claim here, instead relying on the fact of 

incarceration itself and the associated anxiety.
State v. Hintze

20200787-CA 42 2022 UT App 117

¶102 In light of this, Hintze’s prejudice argument turns on his 

assertion that if this case had been resolved more speedily, he 

would have been released from prison in Case 3226 in March 2020 

and that those extra months of incarceration (i.e., the months of 

incarceration between March and September 2020) are sufficient 

to show Barker prejudice. The majority accepts this assertion based 

on two principal conclusions: (1) its belief that, “in all likelihood, 

the sentencing judge” in this case “would have imposed 

concurrent sentences” with the sentence previously imposed in 

Case 3226 and (2) its belief that, even if the sentences had run 

consecutively, it’s still “likely” that Hintze would have been 

paroled in Case 3226 sometime sooner than he actually was. Supra 

¶ 56. I believe that the majority is mistaken on both conclusions, 

and this is so for both general and case-specific reasons.7

7. The majority briefly sets forth a third possibility: namely, that 

based on my analysis of why the motion to suppress should have 

been granted (an analysis that the majority does “not disagree” 

with), that motion might have been granted in 2018, thus leading 

to either a non-prosecution or an acquittal, thereby removing this 

case as an impediment to Hintze being paroled in March 2020. 

Supra ¶ 52.

Unlike the majority, however, I don’t believe that we can 

rewind the clock and act as if the district court would have seen 

the light on the suppression issue in the first instance. It seems to 

me that, for purposes of a speedy trial analysis, we should assume 

that the district court would have acted as it did originally, 

meaning that Hintze would have prevailed on the suppression 

issue only following an appeal of the denial of his motion to 

suppress. 

In any event, I’m also not convinced that granting the 

suppression motion necessarily does weaken the State’s case in an 

outcome-determinative way. Hintze’s motion sought to suppress 

his statement to the first officer about his name. But while that 

(continued...)
State v. Hintze

20200787-CA 43 2022 UT App 117

¶103 First, the general reasons. On the concurrent/consecutive 

component of this, the majority points to a pre-Barker decision 

from 1969 in which, in a single sentence, the Supreme Court 

opined that the “possibility” that an incarcerated defendant might 

have lost the chance to receive a concurrent sentence in some 

other case might be enough to establish speedy trial prejudice. 

Supra ¶ 45. And on the broader loss-of-parole-possibility 

component, the majority points to a few cases suggesting that 

such a loss might be enough too. Supra ¶¶ 44–45.

¶104 But the Supreme Court has more recently stated that the 

mere “possibility of prejudice is not sufficient” to carry the 

defendant’s burden on the fourth Barker factor. Loud Hawk, 474 

U.S. at 315. Given that statement, I think we should be very wary 

of concluding that a defendant has established Barker prejudice 

based on our speculation about how a purely discretionary 

sentencing decision might have played out in a hypothetical 

counterfactual world where the defendant had been more 

speedily prosecuted. In such a scenario, the number of uncertain 

variables in play, particularly with respect to the predicate 

sentencing decision itself, makes the situation an ill fit for a 

subsequent judicial determination that Barker prejudice (which, 

conversation was occurring, a separate officer spoke to the 

teenager and then to her mother, and during the conversation 

with the mother, that officer also learned Hintze’s name. Hintze 

has not sought to suppress the information obtained from the 

mother (and if he did, he’d need to establish, among others, that 

he has standing to make such a challenge). But if that information 

stays in, the State could still identify Hintze as a sex offender who 

was not legally permitted to be in the park. For this additional 

reason, I don’t believe that our apparently shared view on the 

proper resolution of Hintze’s suppression motion provides a basis 

for concluding that Hintze suffered Barker prejudice.
State v. Hintze

20200787-CA 44 2022 UT App 117

again, turns a showing of “actual prejudice”) has actually been 

established.

¶105 Numerous cases have expressed such wariness. In United 

States v. Nixon, 919 F.3d 1265, 1275 (10th Cir. 2019), for example, 

the Tenth Circuit recently considered a case in which the 

defendant claimed that a delay in prosecuting him had prejudiced 

him by impairing his ability to earn “good-time credits,” which 

could have then supported his earlier release from federal prison. 

But the Tenth Circuit explained that it was uncertain whether the 

defendant actually would have behaved well in prison in a 

hypothetical world in which the case had been resolved more 

quickly, and it also pointed out that even if he had, “prison 

officials” still “enjoy[ed] discretion as to whether to award goodtime credits.” Id. Because of “the uncertainties of how [the 

defendant] would behave” and of “how authorities would 

exercise their discretion,” the Tenth Circuit concluded that the 

defendant’s “theory of prejudice rest[ed] inherently on 

speculation.” Id. Because of this, the court held that these 

speculative possibilities could not establish prejudice on a speedy 

trial claim. Id. at 1275–76.

¶106 The Tenth Circuit’s reticence has been shared by a wide 

array of courts, with courts commonly concluding that a 

defendant did not establish Barker prejudice by speculating that a 

discretionary sentencing decision might have gone differently in 

a hypothetical world in which the prosecution at issue proceeded 

more quickly. See, e.g., United States v. Gonzalez-Avina, 234 F. 

App’x 758, 760 (9th Cir. 2007) (rejecting a claim that the delay in 

federal prosecution impaired the defendant’s ability to receive 

state “good time credits,” thereby violating the defendant’s 

speedy trial right, reasoning that “the possibility that [the 

defendant] would have served a shorter sentence absent the 

pending federal complaint is speculative at best, and will not 

support a finding of a Sixth Amendment violation”); United States 

v. Butner, 350 F. Supp. 3d 1036, 1043 n.1 (D.N.M. 2018) (rejecting a 
State v. Hintze

20200787-CA 45 2022 UT App 117

claim that the delay prevented the defendant from receiving 

concurrent sentences, noting that a “defendant does not have a 

right to serve his sentences concurrently” and that the “Tenth 

Circuit has made clear . . . that the mere possibility of a concurrent 

sentence is too speculative to constitute prejudice”); United States 

v. Lainez-Leiva, 957 F. Supp. 390, 392 (N.D.N.Y. 1997) (rejecting a 

concurrent-sentences based prejudice claim “because the 

Defendant’s criminal history, consisting of four convictions for 

criminal possession of a weapon, makes the likelihood of the 

Defendant obtaining a concurrent sentence highly speculative”); 

Wilson v. State, 329 So. 3d 71, 83–84 (Ala. Crim. App. 2020) 

(rejecting a concurrent-sentences-based prejudice claim as 

“speculative” because there was “no guarantee that the circuit 

court would have ordered” the sentences to run concurrently); 

Matthews v. State, 325 A.2d 897, 901–02 (Md. Ct. Spec. App. 1974) 

(rejecting the defendant’s argument that she was prejudiced 

because “she was denied the possibility of parole because of the 

pending charges” because there was “nothing in the record to 

demonstrate that [she] would have been paroled even if the 

instant case had not been pending”); Commonwealth v. Anderson, 

378 N.E.2d 451, 498 (Mass. App. Ct. 1978) (holding that the 

defendant failed to show prejudice because the “possibilities that 

the outstanding charges may have prevented him from obtaining 

parole or concurrent sentences [were] speculative and 

unsupported by the evidence”); Commonwealth v. Campbell, 366 

N.E.2d 44, 55 (Mass. App. Ct. 1977) (rejecting a defendant’s claim 

that the delay prevented her from being paroled because the claim 

was “unsupported by evidence or affidavit in the record, [and] 

must be treated as speculative”); State v. Irish, 140 N.E.3d 209, 227 

(Ohio Ct. App. 2019) (rejecting the defendant’s claim that “he was 

prejudiced by the delay because he could have requested a 

sentence concurrent to what he was already serving,” because 

“the theoretical and speculative loss of the opportunity for a 

defendant to serve the sentence on the pending charge 

concurrently with the sentence in another case is insufficient to 
State v. Hintze

20200787-CA 46 2022 UT App 117

constitute substantial prejudice to the defendant” (quotation 

simplified)).

¶107 Both of the decisions that are driving the majority’s 

conclusion are entirely discretionary. The concurrent/consecutive 

decision is discretionary with the district court. See, e.g., State v. 

Samul, 2015 UT App 23, ¶ 21, 343 P.3d 719. And on the parole 

decision, the Board has “unfettered discretion . . . to fix the term 

of imprisonment” after a defendant has been sentenced by the 

district court. Neese v. Utah Board of Pardons & Parole, 2017 UT 89, 

¶ 23, 416 P.3d 663 (quotation simplified). Given the purely 

discretionary nature of both decisions, I would require Hintze to 

point to something much more definitive before concluding that 

he has carried his burden of establishing Barker prejudice. In my 

view, his prejudice claim fails for this reason alone.

¶108 Second, even if such discretionary questions could lead to 

a prejudice determination in some cases, I don’t believe that 

Hintze has shown prejudice on the record before us. Indeed, 

there’s good reason from this record to believe that both decisions 

would have gone against Hintze if this case had been more 

promptly resolved.

¶109 Let’s start with the concurrent/consecutive question. 

Again, the majority thinks that “in all likelihood, the sentencing 

judge would have imposed concurrent sentences” in this case if it 

had been prosecuted more quickly. Supra ¶ 56. I’m not sure why 

this is so.

¶110 In her argument at sentencing, the prosecutor told the 

court that if this case had not been delayed, she would have asked 

the court to impose a “consecutive” term of incarceration on 

Hintze. She said that the reason for this request would have been 

that as a twice-convicted sex offender, Hintze had now also been 

convicted of being in a public park with a teenage girl, an offense 

for which she believed Hintze should receive “some additional 
State v. Hintze

20200787-CA 47 2022 UT App 117

punishment.” But even so, she then agreed that Hintze should not 

receive any “additional time” in this case—but only because the 

case had “been pending for two years” and Hintze had been “in 

prison anyway.” After hearing arguments from defense counsel, 

the court then agreed to impose no additional jail time on Hintze 

for this offense. And in doing so, the reason it gave was its 

“concern[] about the failure to prosecute and move the case 

forward.”

¶111 Thus, on this record, we have a direct statement from the 

prosecutor that she would have asked for consecutive sentences if 

there had been no delay (coupled with cognizable reasons for that 

request), as well as a statement from the court in which the only

reason it gave for not imposing any additional period of 

incarceration was the delay. So in a hypothetical world where that 

delay was removed, the only thing this record tells us is that 

Hintze was likely on track to receive consecutive sentences, not 

concurrent sentences. There’s no basis in this record for 

concluding otherwise.

¶112 Accounting for this, the majority surmises that this “would 

not likely have mattered much” in the end given the vagaries of 

the sentencing guidelines and the parole decision, supra ¶ 56, 

which leads to the real focus of its analysis: the question of what 

the Board would have done with Hintze’s incarceration in Case 

3226 if this case had been resolved sooner. After all, his conviction 

in this case was for a class A misdemeanor (subject to up to one 

year of jail), while the conviction in Case 3226 was for a thirddegree felony (subject to 0–5 years in prison).

¶113 The record shows that in March 2018, the Board scheduled 

a parole hearing for March 2020, with Hintze being instructed that 

he needed to complete a sex offender training program “before 

being considered for parole.” The record further shows that 

Hintze completed his sex offender training program in January 

2020. The record then shows that the Board decided at the March 
State v. Hintze

20200787-CA 48 2022 UT App 117

2020 hearing not to release Hintze in Case 3226. Of some potential 

note, Hintze later testified at the suppression hearing in this case. 

When asked “what stopped [him] from being paroled” in March 

2020, Hintze responded: “A warrant was filed that needed to be 

adjudicated, this current one.” All parties agree that this was a 

reference to the charge in this case.

¶114 In his brief, Hintze initially claims that this means “that he 

suffered a delay in parole eligibility as a result of this case.” 

(Emphasis added.) The majority seems to accept this framing, 

relying on cases in which the defendant’s parole eligibility was 

compromised by the delayed case, supra ¶ 46, and then analyzing 

the impact of the case at issue in this appeal on “Hintze’s parole 

eligibility,” supra ¶¶ 56–57.

¶115 But Hintze points to nothing in the record showing that the 

Board thought that Hintze wasn’t “eligible” for parole in March 

2020. Instead, Hintze only points to the fact that he was denied 

parole in March 2020. The fact that he was denied parole, 

however, doesn’t mean that the Board thought that Hintze was 

ineligible. It could just as readily mean that the Board thought he 

was eligible, considered him for parole at that hearing, and then 

chose not to parole him as an exercise of its “unfettered 

discretion.” Neese, 2017 UT 89, ¶ 23 (quotation simplified). I see 

nothing in the record that says otherwise.

¶116 This leaves Hintze’s testimony that what “stopped” him 

from being paroled in March 2020 was that this case “needed to 

be adjudicated.” Based on this testimony, the majority concludes 

that it’s “at least reasonably probable that, had the State timely 

prosecuted this case in 2018 as it should have, Hintze would have 

been paroled in March 2020.” Supra ¶ 66. But I think there’s a 

critical flaw in this conclusion: namely, it rests on the assumption 

that the only thing the Board cared about when it was informed 

of this case was that the case was pending, as opposed to the Board 
State v. Hintze

20200787-CA 49 2022 UT App 117

also believing that the outcome of this case might matter to its 

determination of when Hintze should be released.

¶117 Even in the cited passage of testimony, Hintze didn’t 

directly say the outcome of this case didn’t matter to the Board. 

(Nor, for that matter, did he call anyone else who had direct 

knowledge to testify about this either.) I think this assertion thus 

fails for lack of proof. In any event, I also find the majority’s 

speculative conclusion about how it thinks this would have 

played out to be difficult to accept. Based on Hintze’s criminal 

record that included the 2011 conviction and the 2017 conviction 

in Case 3226, the Board was willing to have a parole hearing for 

Hintze in March 2020. But in the hypothetical scenario in which 

we’re now dwelling—one that adds a conviction in this case to 

that same mix—here’s what the Board would have been 

confronted with:

• In 2011, Hintze was convicted of attempted unlawful 

sexual activity with a minor, a class A misdemeanor.

• Based on the June 2016 park incident at issue in this case, 

Hintze was convicted of unlawfully going to a public park, 

and the uncontestable facts show that he did so with a 

young teenage girl. And since the Board would have had 

the authority to look at the facts of record, I think it’s worth 

noting that although the teenager’s mother confirmed for 

officers that Hintze was indeed a family friend, she also 

told officers that Hintze had neglected to tell her that he 

was a convicted sex offender. I think it’s fair to surmise that 

some parents and some Board members might think this 

was a curious omission.

• In 2017, Hintze was convicted in Case 3226 for attempted 

forcible sexual abuse, a third-degree felony. In the State’s 

opposition to Hintze’s speedy trial motion in this case, the 

State informed the court that this 2017 conviction was 
State v. Hintze

20200787-CA 50 2022 UT App 117

based on an incident in “approximately 2014–2015,” 

wherein Hintze “walked in on a 14-year-old girl who was 

in the shower,” “touched the outside of her vagina,” and 

“told her she needed to shave.” Hintze never disputed the 

characterization of the facts that supported that 

conviction.8

¶118 Again, even under the majority’s construct, the initial 

question is whether Hintze has established that the Board would 

have released him in March 2020 (rather than delaying things for 

six months like it actually did) if the conviction in this case had 

been entered before March 2020. Unlike the majority, I don’t 

believe that this is likely. After all, in the real-world version, it 

looked to the Board like Hintze committed one sex offense in 2011 

8. Because Hintze did not dispute this characterization, I think 

we’re safe relying on it here. Regardless, in the sworn plea 

statement in that case (case no. 171903226), Hintze admitted that 

he had “entered a bathroom where the victim was showering,” 

“turned off the lights,” “opened the shower curtain,” and then 

“touched the victim on the outside of her vagina with his hand.” 

He further admitted that this “touching was not consensual.” The 

Board would certainly have had access to this document.

In any event, under rule 201(b)(2) of the Utah Rules of 

Evidence, we may also take judicial notice of a fact that “is not 

subject to reasonable dispute” and “can be accurately and readily 

determined from sources whose accuracy cannot reasonably be 

questioned.” Utah R. Evid. 201(b)(2). We have previously 

suggested (without deciding) that a court can take “judicial notice 

that court filings contained certain allegations, or that findings of 

fact were made by another court,” though we posited that it might 

cross the line for a court to take judicial notice that the facts from 

the prior case were actually true. State v. Cooper, 2011 UT App 412, 

¶ 15 n.8, 275 P.3d 250. Here, I believe that we can, at minimum, 

take judicial notice that Hintze previously admitted to these 

particular facts under oath when entering his plea in Case 3226.
State v. Hintze

20200787-CA 51 2022 UT App 117

followed by another offense in 2014 or 2015—two offenses 

separated by a gap of a few years. But adding this conviction to 

the mix would have shown the Board that after committing a sex 

offense involving a teenage girl in 2011, and after then walking in 

on a showering 14-year-old girl and touching her vagina in 2014 

or 2015, Hintze violated the terms of his sex offender status in June 

2016 by going to a public park (and, of note, with yet another

teenage girl). These are three offenses involving three teenage 

girls within a five-year period.

¶119 “Once is an accident, twice is a coincidence, three times is 

a pattern.” League of Women Voters of Fla., Inc. v. Lee, 2022 WL 

969538, at *26 (N.D. Fla. Mar. 31, 2022). Here, nothing suggests 

that Hintze’s first offense was an accident. And more to the point, 

adding this conviction and these additional details to Hintze’s 

first and second offenses now makes it seem like Hintze has a 

pattern of engaging in criminal conduct that involves teenage 

girls. And that pattern, I believe, would have been even clearer to 

the Board if this case had been resolved before Hintze’s March 

2020 parole hearing. So if the question before us is whether, in the 

hypothetical world in which the Board had three convictions to 

consider in March 2020, the Board would have been more lenient 

toward Hintze than it was in the real world in which the third case 

was simply unresolved in March 2020, I think the most likely 

answer to that question is no.9

9. In speculating otherwise, the majority relies, in part, on the 

sentencing guidelines, noting that if the sentences had been 

ordered to run consecutively, the guidelines would recommend 

an additional 146 days of incarceration for this offense. Supra ¶ 57. 

But Utah’s sentencing guidelines “do not create any right or 

expectation on behalf of any individual,” and their 

recommendations are “advisory only” and “not mandatory.” 

Adult Sent’g & Release Guidelines 5, 77 (Utah Sent’g Comm’n 2021). 

(continued...)
State v. Hintze

20200787-CA 52 2022 UT App 117

¶120 I recognize that I might be wrong about this and that it’s 

possible that the Board would have gone the way the majority 

thinks it would have gone. As noted by the majority, we’re both 

indulging in some “guesswork” here.

¶121 But in my view, the fact that we’re both engaged in 

guesswork is the very reason that Hintze’s prejudice argument 

fails. This is Hintze’s motion, and because of that, he bears the 

burden of establishing that he suffered actual prejudice from the 

delay in prosecuting him for the June 2016 park offense. With 

respect, I believe that there’s just too much maybe at the heart of 

the majority’s conclusion that Hintze was prejudiced. Maybe the 

district court would have granted the motion to suppress in 2018, 

or maybe it would have ordered concurrent sentences, or maybe

the Board would have let Hintze out of prison in Case 3226 in 

March 2020 even if it now had a third conviction to consider. 

Maybe.

¶122 But again, the Supreme Court has instructed that the mere 

“possibility of prejudice is not sufficient” to establish prejudice. 

Loud Hawk, 474 U.S. at 315. There’s simply nothing concrete in this 

record that establishes that Hintze would have been released any 

sooner but for the delay, so his claim of prejudice must necessarily 

turn on the “possibility” that he might have been prejudiced. I 

would therefore reject his prejudice claim for failure of proof 

alone; if pressed, however, I would also reject it because I believe 

that it’s more likely that Hintze would have remained 

While they “create a starting point” for decision making, the 

Board can still consider other “aggravating and mitigating 

circumstances” before reaching its final decision. Id. at 6. For the 

reasons discussed, I think this is all too speculative to establish 

Barker prejudice, and in any event, I think the aggravating 

circumstances here—a pattern of criminal conduct involving 

teenage girls—suggest that the Board would likely have looked 

on a request for earlier release with some disfavor.
State v. Hintze

20200787-CA 53 2022 UT App 117

incarcerated for the same period of time anyway. As a result, I 

believe that this factor must weigh against Hintze in the speedy 

trial analysis.10

10. The majority notes that “relatively little has been written with 

regard to what the actual causal standard is” for proving Barker 

prejudice. Supra ¶ 61. After noting the existence of “several 

different possible causal standards” among the cases, the majority 

adopts a “reasonable probability” standard that is similar, in its 

view, to the causal standard for prejudice that is employed in 

ineffective assistance cases. Supra ¶ 63.

Of the possibilities in play, I note that some jurisdictions 

hold that the quantum of proof for Barker prejudice varies 

depending on how the other Barker factors are resolved. See, e.g.,

United States v. Brown, 169 F.3d 344, 351 (6th Cir. 1999) (the 

“amount of prejudice that the defendant must show depends on 

the reasons for the delay”); United States v. Lonich, 23 F.4th 881, 

896–97 (9th Cir. 2022) (the “amount of prejudice required to 

trigger a Speedy Trial Clause violation is inversely proportional 

to the length and reason for the delay” (quotation simplified)); 

Ussery v. State, 596 S.W.3d 277, 283 (Tex. App. 2019) (the 

“accused’s burden of proof” in “showing prejudice varies 

inversely with the State’s degree of culpability for the delay” 

(quotation simplified)). But I don’t believe it’s necessary to 

definitively decide whether this or any other identified causal 

standard should be adopted here, however, because I don’t 

believe that Hintze has shown prejudice under any of the 

identified standards.

Regardless, even accepting the majority’s “reasonable 

probability standard,” I note that in the analogous (and similarly 

worded) ineffective assistance context, it’s true that a “reasonable 

probability” is enough to establish prejudice, but even so, there 

must still be a concrete factual underpinning for any conclusion 

that there was prejudice. In this sense, the “demonstration of 

(continued...)
State v. Hintze

20200787-CA 54 2022 UT App 117

B. Balancing the factors

¶123 This leads to the final task, which is to determine whether 

Hintze’s right to a speedy trial was violated. Again, the “speedytrial right is amorphous, slippery, and necessarily relative.” 

Brillon, 556 U.S. at 89 (quotation simplified). And it also “take[s] 

into account” both the “defendant’s rights” and “the rights of 

public justice.” State v. Samora, 2022 UT App 7, ¶ 18, 504 P.3d 195 

(quotation simplified).

¶124 As discussed, courts determine whether the right was 

violated through Barker’s “four-factor balancing test.” Younge,

2013 UT 71, ¶ 17 (quotation simplified). But unlike some 

balancing tests, this is not a discretionary balancing in which 

appellate courts defer to the district court. Rather, this task 

presents a legal question. See State v. Steele, 2010 UT App 185, ¶ 14, 

236 P.3d 161. As a result, it’s up to the reviewing courts to decide 

through some sort of legal alchemy whether the particular mix of 

factors in a particular case constituted a Sixth Amendment 

violation.

¶125 There’s some inherent imprecision associated with this 

task. And this imprecision is a product, in part, of the interrelated 

nature of the four factors. Barker cautioned that “none of the four 

factors” should be regarded as “either a necessary or sufficient 

condition to the finding of a deprivation of the right of speedy 

prejudice must be a ‘demonstrable reality’” and “not simply a 

‘speculative matter.’” Ross v. State, 2019 UT 48, ¶ 111, 448 P.3d 

1203 (quoting State v. Chacon, 962 P.2d 48, 50 (Utah 1998)). As 

explained above, I believe that Hintze’s prejudice claim runs far 

afield of any demonstrable facts and is instead impermissibly 

speculative. Thus, even under the causal approach adopted by the 

majority, I don’t believe that there is a reasonable probability that 

Hintze would have been released earlier without this delay in 

prosecution.
State v. Hintze

20200787-CA 55 2022 UT App 117

trial.” 407 U.S. at 533. And it further explained that the factors are 

“related” and “must be considered together with such other 

circumstances as may be relevant.” Id.

¶126 But even so, it often turns out that some factors favor the 

defendant in a case while others favor the government. Because 

of this, courts in such cases must somehow decide which factor(s) 

matter most.

¶127 There’s been some inconsistency in the caselaw about how 

to assess this. As noted by the majority, for example, the Supreme 

Court in one case suggested that the “reason for delay” (the 

second factor) is the “flag all litigants seek to capture.” Loud Hawk, 

474 U.S. at 315 (1986). And with respect to prejudice (the fourth 

factor), the Court has called it a “fundamental error” to require 

“an affirmative demonstration of prejudice” to “prove a denial of 

the constitutional right to a speedy trial.” Moore v. Arizona, 414 

U.S. 25, 26 (1973). But on that same prejudice factor, the Court has 

also (and more recently) said that prejudice is a “necessary 

ingredient” that is “required to establish a violation of the Sixth 

Amendment Speedy Trial Clause.” Reed v. Farley, 512 U.S. 339, 353 

(1994).

¶128 As I understand how this is supposed to work, all factors 

matter, but they don’t all matter equally. Instead, the prejudice 

factor is essentially first among equals, and in the absence of 

demonstrated prejudice, a defendant likely cannot establish that 

his right to a speedy trial was violated.

¶129 The reason for this prejudice-tilted construct is the remedy 

that is associated with a Sixth Amendment speedy trial violation. 

The Supreme Court has “repeatedly recognized that the 

commission of a constitutional error at trial alone does not entitle 

a defendant to automatic reversal. Instead, most constitutional 

errors can be harmless.” Washington v. Recuenco, 548 U.S. 212, 218 

(2006) (quotation simplified). The exception to this, of course, is 
State v. Hintze

20200787-CA 56 2022 UT App 117

for cases involving structural error, wherein prejudice is 

presumed. See State v. Bunker, 2019 UT App 118, ¶ 10, 446 P.3d 

153. But the Court has “found structural errors only in a very 

limited class of cases,” id. (quoting Johnson v. United States, 520 

U.S. 461, 468 (1997)), and it has further cautioned that structural 

errors are indeed “rare,” Recuenco, 548 U.S. at 218.

¶130 The “only possible remedy” for a violation of the Sixth 

Amendment right to a speedy trial is the dismissal of the charges. 

Strunk v. United States, 412 U.S. 434, 440 (1973) (quotation 

simplified). As a result, if a court were to hold that a defendant 

had established a violation of this right without a showing of 

prejudice, the court would essentially be treating a speedy trial 

violation as if it were a new form of structural error.

¶131 But Barker accounted for this, albeit in something of a 

curious way: it made prejudice part of the test itself, thus 

contemplating that prejudice does play some role in this analysis. 

But by making prejudice part of the test, Barker left it to the courts 

to determine how to balance prejudice alongside the other three 

factors.

¶132 To avoid inadvertently converting a speedy trial violation 

into a form of structural error, many courts have concluded that a 

defendant must affirmatively demonstrate prejudice unless the 

other three factors all weigh so heavily in the defendant’s favor

that prejudice can safely be presumed. See, e.g., United States v. 

Reagan, 725 F.3d 471, 487 (5th Cir. 2013) (“Once a speedy trial 

analysis is triggered, the court determines whether the first three 

Barker factors weigh so heavily in favor of the defendant that 

prejudice is presumed. In the absence of such a presumption, the 

defendant must affirmatively demonstrate prejudice.” (quotation 

simplified)); United States v. Machado, 886 F.3d 1070, 1081 (11th Cir. 

2018) (holding that a “defendant must demonstrate actual 

prejudice unless each of the first three factors weighs heavily 

against the government” (quotation simplified)); State v. Flowers, 
State v. Hintze

20200787-CA 57 2022 UT App 117

503 A.2d 1172, 1177 (Conn. 1986) (“Thus, an affirmative showing 

of actual prejudice is not essential to a speedy trial claim when the 

defendant is able to show that the other three factors weigh 

heavily against the State.”); State v. Griffin, 274 A.3d 558, 565 (N.H. 

2022) (“Although we typically require a defendant to demonstrate 

actual prejudice from a delay to prevail on a speedy trial claim, 

when a defendant does not—or cannot—articulate the particular 

harm caused by the delay, we inquire whether the length and 

reason for the delay weigh so heavily in the defendant’s favor that 

prejudice need not be specifically demonstrated.”); State v. Garza, 

212 P.3d 387, 400 (N.M. 2009) (“However, if the length of delay 

and the reasons for the delay weigh heavily in [the] defendant’s 

favor and [the] defendant has asserted his right and not 

acquiesced to the delay, then the defendant need not show 

prejudice for a court to conclude that the defendant’s right has 

been violated.”); Fairbourn v. State, 2020 WY 73, ¶ 59, 465 P.3d 413

(“Should the defendant fail to demonstrate prejudice, the other 

three Barker factors must weigh heavily in his favor to establish a 

speedy trial violation.” (quotation simplified)). By structuring the 

Barker analysis along these lines, these courts assess Barker 

prejudice under Barker’s full four-factor rubric, but they do so 

while still ensuring that, as with most of our other constitutional 

rights, reversal of a conviction happens only when the defendant 

was prejudiced.11

11 . As noted, the Supreme Court has held that in cases of 

“excessive” delay, speedy trial prejudice can be presumed, and 

the reason for this is the likelihood that an exceedingly long delay 

might impair the defendant’s ability to “prove or, for that matter, 

identify” how he was prejudiced. United States v. Doggett, 505 U.S. 

647, 655 (1992). In such a circumstance, the exceedingly long delay 

essentially satisfies the requirement from these cases that the 

defendant must show prejudice in the absence of a strong 

showing on all the other factors. But as also noted, this case does 

(continued...)
State v. Hintze

20200787-CA 58 2022 UT App 117

¶133 Other courts have chosen to elevate prejudice in a slightly 

less structured way. The Tenth Circuit, for example, has held that 

although a “showing of prejudice may not be absolutely necessary 

in order to find a Sixth Amendment violation,” courts should 

“have great reluctance to find a speedy trial deprivation where 

there is no prejudice.” United States v. Gould, 672 F.3d 930, 939 

(10th Cir. 2012) (quotation simplified); see also United States v. 

Frias, 893 F.3d 1268, 1275 (10th Cir. 2018) (finding no Sixth 

Amendment violation where all but the fourth Barker factor 

weighed at least slightly in the defendant’s favor); cf. United States

v. Margheim, 770 F.3d 1312, 1329 (10th Cir. 2014) (“However, in 

most circumstances, failure to specify prejudice will eviscerate the 

defendant’s [speedy-trial] claim.”).

¶134 And in a somewhat similar vein, many other courts have 

simply held that prejudice should be considered the prime or 

most important factor in the Barker analysis. The Utah Supreme 

Court has suggested as much. See State v. Ossana, 739 P.2d 628, 631 

(Utah 1987) (“Finally and most importantly, Barker requires an 

inquiry into whether [the] defendant was prejudiced by the 

delay.” (emphasis added)). And on this front, other courts have 

been more overt. See, e.g., United States v. Shulick, 18 F.4th 91, 102 

(3d Cir. 2021) (referring to prejudice as “the most important factor 

in the Barker analysis”); United States v. Lozano, 962 F.3d 773, 781 

(4th Cir. 2020) (“Prejudice, while not essential to the establishment 

of a violation of the right, is a prime issue and a critical factor.” 

(quotation simplified)); Symdon, 689 F.3d at 752 (“Prejudice is the 

most important of the four Barker factors.”); State v. Leslie, 708 P.2d 

719, 725 (Ariz. 1985) (en banc) (holding that of “these four factors, 

the length of the delay is the least conclusive and the prejudice 

suffered by the defendant is the most important”); State v. Lloyd, 

440 A.2d 867, 872 (Conn. 1981) (“[T]he linchpin of the speedy trial 

claim is a showing of prejudice . . . .”); Shaw v. State, 645 So. 2d 68, 

not present such a circumstance, because there is no claim here 

that the delay qualifies as “excessive” for purposes of this test.
State v. Hintze

20200787-CA 59 2022 UT App 117

70 (Fla. Dist. Ct. App. 1994) (“Actual prejudice is the final and 

most important factor . . . .”); State v. Brackett, 377 P.3d 1082, 1090 

(Idaho Ct. App. 2016) (“The nature and extent of prejudice is the 

most important of the Barker factors.”); State v. Rodriguez, 494 P.3d 

155, 163 (Kan. Ct. App. 2021) (“The lack of prejudice to the 

defendant weighs heavily in applying the Barker analysis.”); 

Phillips v. State, 227 A.3d 779, 795 (Md. Ct. Spec. App. 2020) (“The 

most important factor in the Barker analysis is whether the 

defendant has suffered actual prejudice.” (quotation simplified)); 

Berryman v. State, 337 So. 3d 1116, 1133–34 (Miss. Ct. App. 2021) 

(“In practice, Barker’s fourth factor—prejudice—often proves to 

be the most important in the analysis. While an affirmative 

demonstration of prejudice is not strictly necessary to prove a 

denial of the constitutional right to a speedy trial, the absence of 

prejudice may outweigh the other three factors.” (quotation 

simplified)); Coleman v. State, 640 S.W.3d 159, 166 (Mo. Ct. App. 

2022) (“The fourth and most important [Barker] factor is prejudice 

to the defendant.”); State v. Montoya, 2015-NMCA-056, ¶ 25, 348 

P.3d 1057 (“The heart of the speedy trial right is preventing 

prejudice to the accused.”(quotation simplified)); State v. Berry, 

141 S.W.3d 549, 568 (Tenn. 2004) (“The most important question, 

although not determinative in every case, is whether the delay 

caused any prejudice to the defendant.”); State v. Turner, 2013 VT 

26, ¶ 12, 70 A.3d 1027 (“Finally, the fourth factor looks at the 

actual prejudice as a result of the delay. This is the most important 

factor.”).

¶135 I agree with the courts that have held that unless the other 

factors all weigh heavily in the defendant’s favor, some 

affirmative showing of actual prejudice is required for the 

defendant to prevail on his speedy trial claim. Again, without 

such a requirement, a speedy trial violation would essentially 

become a new form of structural error, and I don’t believe that the 

Constitution requires that outcome. At minimum, however, I also 

agree with the courts that have held that prejudice should at least 

be considered the most important of the Barker factors and that, in 
State v. Hintze

20200787-CA 60 2022 UT App 117

the absence of demonstrated prejudice, a speedy trial claim 

should normally be rejected.

¶136 With all this in mind, I now turn to the question of how to 

balance the four factors in this case, accounting for their 

interrelated nature, the unique circumstances of this case, and the 

ultimate primacy of prejudice. Again, by way of something of 

recap, I view the factors as follows. 

¶137 First, it’s true that the actual length that it took to prosecute 

Hintze was two years. But courts commonly assess Barker’s length 

factor and its prejudice factor together. See, e.g., Doggett, 505 U.S. 

at 656 (explaining that the “importance” of the prejudice factor 

“increases with the length of delay”); Ossana, 739 P.2d at 631 

(“Barker requires an inquiry into whether [the] defendant was 

prejudiced by the delay.”); Thompson-Jacobson, 2022 UT App 29, 

¶ 11 (explaining that “the extent to which the delay stretches” 

beyond the minimum to justify review is “relevant because the 

presumption that pretrial delay has prejudiced the accused 

intensifies over time” (quotation simplified)). Putting them 

together here, I think that what really matters in this case is that 

the effective length of the delay was six months. Again, Hintze 

didn’t even know about this case for the first eighteen months 

after the charge was filed, so there’s no possibility that he suffered

any anxiety or stress from the pending charge at that time. And 

because of Hintze’s conviction in Case 3226, even Hintze agrees 

that he would have been incarcerated through at least March 2020 

for that unrelated reason anyway. Since he was convicted by plea 

in September 2020, I believe that our resolution of this case must 

turn on the six months between March and September 2020.

¶138 Second, I agree that the reason for the delay weighs against 

the State. But no one has ever suggested that the State delayed 

prosecuting Hintze deliberately or for any tactical reason. Instead, 

by all accounts, it appears to have been an inadvertent mistake. 

Such mistakes of course shouldn’t happen. And I agree that in a 
State v. Hintze

20200787-CA 61 2022 UT App 117

case in which a proper balancing of the other factors weighed 

against the State, even a negligent delay could support a violation 

(and, hence, a dismissal). But as discussed shortly, I don’t believe 

this is so here.

¶139 Third, I agree that if a defendant makes a timely assertion 

of his right to a speedy trial, the third factor should ordinarily 

weigh in his favor. But again, the idea behind that factor seems to 

be that once the defendant asserts his constitutional right to a 

speedy trial, the State must do its part to see that the defendant 

receives the speedy trial that he’s now requested. And that’s 

exactly what happened here: after Hintze asserted the right to a 

speedy trial in his August 2020 motion to dismiss, the State 

promptly responded to the motion, the court ruled on the motion 

in September 2020, and the case was then resolved by way of a 

plea that very same month. In a circumstance like this one, where 

the defendant’s assertion of the right was so quickly followed by 

the State’s active participation in resolving the case, I have 

difficulty seeing how this factor could compel us to conclude that 

the Sixth Amendment was somehow violated. In these particular 

circumstances, I believe that this factor is more appropriately 

viewed as something of a wash.

¶140 Fourth, we’re left with prejudice. As discussed at length 

above, I don’t believe that Hintze has established that he was 

prejudiced by the delay in this case. His prejudice arguments are 

inherently speculative, so I believe that they fail for this reason 

alone. And on their merits, his arguments ask us to assume that 

the Board would have placed little stock in the fact that, after 

being convicted of two sex offenses involving teenage girls, 

Hintze now stood convicted of unlawfully being in a public park 

(while with yet another teenage girl, no less). This runs contrary 

to how I think this would have likely played out.

¶141 So putting these all together, here’s how I see this case 

balancing out: Hintze knew about this charge for six months 
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20200787-CA 62 2022 UT App 117

before he pleaded guilty to it, the earlier delay wasn’t the product 

of any deliberate action by the State, the case was resolved about 

a month from the time that Hintze first asserted his right to a 

speedy trial, and there’s no actual proof that the delay (whether it 

be six months or two years) caused Hintze any actual prejudice. 

Under this mix of circumstances, I don’t believe that the Sixth 

Amendment was violated. I would therefore affirm the district 

court’s denial of Hintze’s motion to dismiss, and I respectfully 

dissent from the majority’s contrary conclusion.

II. Fourth Amendment Seizure

¶142 Hintze also challenges the district court’s denial of his 

motion to suppress, and the issue has been fully briefed and 

capably argued by both parties. Because I would reject Hintze’s 

argument about the alleged speedy trial violation, I would 

accordingly reach this issue. And in my view, we should reverse 

the district court’s denial of Hintze’s motion to suppress. Cf. State 

v. Larrabee, 2013 UT 70, ¶ 42 n.1, 321 P.3d 1136 (Lee, J., dissenting) 

(explaining that a “core role of a dissenting opinion is to outline 

the grounds on which it would dispose of the case—whether or 

not those grounds are identical to those addressed by the 

majority” and then setting forth an “alternative argument for 

reversal” that was advanced by the defendant but not reached by 

the majority).

¶143 The Fourth Amendment protects “against unreasonable 

searches and seizures.” U.S. Const. amend. IV. To determine 

whether there was an unreasonable search or seizure, courts must 

first determine the nature of the police-citizen encounter at issue. 

There are three types:

A level one encounter occurs when a police officer 

approaches a citizen and asks questions, but the 

person is not detained against his will and remains 

free to leave. A level two encounter occurs when a 
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20200787-CA 63 2022 UT App 117

police officer temporarily seizes an individual 

because the officer has a reasonable, articulable 

suspicion that the person has committed or is about 

to commit a crime. Finally, a level three stop occurs 

when a police officer has probable cause to believe 

that a crime has been committed and effects an 

arrest of the suspect.

State v. Mitchell, 2019 UT App 190, ¶ 12, 455 P.3d 103 (quotation 

simplified).

¶144 As noted, Hintze’s motion was targeted at the moment 

when the first officer asked him for his name. This was the 

moment of demarcation because, again, once officers learned 

Hintze’s name, they had a basis for discovering that Hintze was a 

sex offender and not legally permitted to be at the park. Given 

this, the question is what kind of encounter was underway when 

the officers asked Hintze for his name: was it a consensual level 

one encounter (which is the State’s view)? Or, instead, was it a 

level two encounter that already amounted to a seizure (which is 

Hintze’s view)? If it was a level two encounter at that point, we 

must then determine whether that seizure was justified by 

reasonable suspicion.

¶145 As set forth in Part II.A, I believe that Hintze had already 

been seized when the officer asked him for his name. As set forth 

in Part II.B, I believe that this seizure was not supported by 

reasonable suspicion.

A. Seizure

¶146 A Fourth Amendment seizure occurs when an officer “by 

means of physical force or show of authority, terminates or 

restrains” a person’s “freedom of movement.” State v. Anderson, 

2015 UT 90, ¶ 10, 362 P.3d 1232 (quotation simplified). “A show 

of authority is sufficient to constitute a seizure if in view of all of 

the circumstances surrounding the incident, a reasonable person 
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20200787-CA 64 2022 UT App 117

would have believed that he was not free to leave.” Id. (quotation 

simplified). “Thus it is a hypothetical reasonable person’s 

interpretation of an officer’s actions—not the officer’s intent—that 

determines whether an individual has been seized by an officer 

through a show of authority.” Id. Although this is a circumstancedependent inquiry, it is still “helpful” to examine past cases in 

which courts addressed these issues and then “compar[e]” those 

cases “to our facts.” State v. Bean, 869 P.2d 984, 986 (Utah Ct. App. 

1994).

¶147 In my view, there are several circumstances that are of 

particular importance to our resolution of this case.

¶148 First, the presence of multiple armed and uniformed 

police officers. When determining whether “a reasonable person 

would have believed that he was not free to leave,” courts 

commonly look to whether there was a “threatening presence of 

several officers.” United States v. Mendenhall, 446 U.S. 544, 554 

(1980). In assessing this, courts look to such things as the number 

of officers, the officer-to-citizen-ratio, whether the officers were 

uniformed, and whether the officers were armed.

¶149 In a recent case, for example, we concluded that “the 

presence of four armed and uniformed officers constituted a show 

of authority,” particularly because the officers “outnumber[ed] 

[the suspects] two-to-one.” State v. Bui-Cornethan, 2021 UT App 

56, ¶ 22, 490 P.3d 191. In another case, we held that a suspect was 

seized in part because he “was confronted with two uniformed 

officers,” each of whom was equipped “with badge, gun, the 

whole works.” Salt Lake City v. Ray, 2000 UT App 55, ¶ 13, 998 P.2d 

274 (quotation simplified). By contrast, we reached a different 

conclusion when “only two officers” questioned “five males.” 

State v. Merworth, 2006 UT App 489, ¶ 9, 153 P.3d 775. And we also 

held that there was no seizure in a case where “only one officer” 

questioned a single suspect, and, although the officer was armed, 

he “used no show of force such as drawing his weapon or flashing 
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20200787-CA 65 2022 UT App 117

his police lights.” State v. Adams, 2007 UT App 117, ¶ 14, 158 P.3d 

1134.

¶150 In this case, three officers approached two citizens, so the 

officers outnumbered the citizens. Moreover, all three officers 

were uniformed, and as the district court put it, “[t]hey certainly 

had weapons[, although] none of them [were] drawn.” Although 

not dispositive, these circumstances support a conclusion that this 

encounter constituted a seizure.

¶151 Second, the positioning of the officers’ bikes. An 

“officer’s positioning of her vehicle is certainly a factor that” can 

weigh “in favor of finding under a totality of the circumstances 

that [a] defendant was seized.” State v. Struhs, 940 P.2d 1225, 1228 

(Utah Ct. App. 1997). Such positioning is particularly relevant if 

the officer uses his vehicle to block a citizen’s path, because this 

would naturally be seen as infringing on the citizen’s “freedom of 

movement.” Id.; see also State v. Smith, 2022 UT 13, ¶¶ 3, 26, 513 

P.3d 629 (concluding that officers seized a suspect when they 

“parked in a manner intended to prevent [the suspect’s] vehicle 

from exiting and to allow the officers to shine a spotlight directly 

into the vehicle” (quotation simplified)); State v. Smith, 781 P.2d 

879, 882 (Utah Ct. App. 1989) (concluding that the defendant’s 

“liberty was restrained and a seizure occurred,” in part, because 

the officer “blocked [the] defendant’s car” with his own).

¶152 By contrast, we’ve held that the positioning of an officer’s 

vehicle did not suggest that there was a seizure when the officer 

“parked in front of [a suspect’s] vehicle at a forty-five degree 

angle,” “did not block the vehicle in,” and left room so that it was 

“possible for [the suspect] to drive away.” State v. Merlen, 2002 UT 

App 181U, para. 2. Other courts have similarly concluded that 

there wasn’t a seizure in situations in which officers did not 

effectively block the citizen in. See, e.g., United States v. Tafuna, 5 

F.4th 1197, 1201 (10th Cir. 2021) (considering it important that 

although the officer’s “police vehicle was parked at an angle so 
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20200787-CA 66 2022 UT App 117

that it faced the driver’s side of the car, it did not obstruct the car’s 

path of exit or otherwise impede Defendant’s movement”); cf. 

State v. Rigby, 2016 UT App 42, ¶ 21, 369 P.3d 127 (acknowledging 

“Utah’s historical pattern of tracking federal law in [the Fourth 

Amendment] area both in principle and in practice”).

¶153 Here, the officers were on bikes, not in cars. But the same 

analysis would apply, particularly where, as here, the citizens 

were on foot as opposed to being in cars of their own. See, e.g.,

People v. Taylor, 2018 CO 35, ¶ 12, 415 P.3d 821 (explaining that an 

officer on bike patrol who stopped his bike and left “room on that 

portion of the sidewalk for [the suspect] to keep walking” did not 

seize the suspect). So, as with a car case, the question is whether 

the officers’ vehicles (i.e., their bikes) were positioned such that 

they would restrain Hintze’s freedom of movement.

¶154 They were. The bodycam footage from the lead officer was 

introduced below and is in the record. This video shows that the 

three officers pedaled up to the bench where Hintze and the 

teenager were sitting. The bench was on a concrete patch that was 

alongside a paved path, there was a fence behind the bench (at 

something of an angle), and there was a busy road behind the 

path. To either side of the bench was overgrown grass. The officer 

who questioned Hintze was at the right of this group of officers, 

and he stopped on the path just a few feet in front of Hintze. This 

officer got off his bike and parked his bike to his right, near the 

end of the bench on the side where Hintze was sitting. This officer 

and his bike would have been in the way if Hintze had tried 

walking away on the path in that direction. A second officer was 

positioned in the middle of the trio. He parked his bike 

immediately in front of Hintze, positioning his bike mere inches 

from Hintze’s knee. That second officer and a third officer who 

was behind him were positioned on the portion of pavement to 

the left of Hintze and the path in that direction, thereby blocking 

Hintze in that direction as well. Thus, from the very outset of this 

encounter, Hintze was effectively surrounded, and a reasonable 
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20200787-CA 67 2022 UT App 117

person would have believed that he did not have “freedom of 

movement.” Struhs, 940 P.2d at 1227.

¶155 The State nevertheless contends that a person in this 

position would have felt free to leave anyway. The State bases this 

assertion on I.N.S. v. Delgado, 466 U.S. 210 (1984), and United States 

v. Drayton, 536 U.S. 194 (2002). Relying on those cases, the State 

argues that government agents can “directly question[] 

individuals about potential criminal or quasi-criminal” activities 

“while other government agents [stand] by the exits” without 

effectuating a seizure. Unlike the State, however, I believe Delgado

and Drayton are distinguishable in two key ways.

¶156 First, Delgado and Drayton both involved police-citizen 

encounters in spaces in which the individuals had already

submitted themselves to some degree of confinement before 

encountering the officers. In Delgado, for instance, government 

agents interviewed factory workers inside several factories. 466 

U.S. at 212. When assessing whether agents had done anything to 

restrict the workers’ freedom of movement, the Supreme Court 

thought it significant that “when people are at work[,] their 

freedom to move about has been meaningfully restricted, not by 

the actions of law enforcement officials, but by the workers’ 

voluntary obligations to their employers.” Id. at 218. The Court 

accordingly concluded that the agents’ questioning did not 

“prevent” the workers “from moving about the factories” because 

it did not limit the workers’ freedom of movement more than their 

own employment already had. Id.

¶157 Drayton involved a different setting but a similar dynamic. 

There, police officers approached and questioned individuals on 

board a bus. 536 U.S. at 197–98. Reviewing a Fourth Amendment 

challenge to the questioning, the Court thought it significant that 

the passengers had already restricted their own movement by 

choosing to enter and then stay on the bus. Id. at 201–02. Relying 

on Florida v. Bostick, 501 U.S. 429 (1991), the Court reinforced the 
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20200787-CA 68 2022 UT App 117

notion that “the traditional rule, which states that a seizure does

not occur so long as a reasonable person would feel free to 

disregard the police and go about his business,” is “not an 

accurate measure of the coercive effect of a bus encounter” 

because a “bus rider’s movements are” already “confined” by the 

rider’s decision to get on the bus. Drayton, 536 U.S. at 201 

(quotation simplified); see also Bostick, 501 U.S. at 435–36 

(explaining that “the degree to which a reasonable person would 

feel that he or she could leave is not an accurate measure of the 

coercive effect of the encounter” when “the person is seated on a 

bus and has no desire to leave”). Thus, although individuals’ 

“movements [are] ‘confined’ in a sense” while they sit on a bus, 

this restriction is “the natural result of [the bus rider’s] decision to 

take the bus,” which is a “factor independent of police conduct.” 

Bostick, 501 U.S. at 436.

¶158 Unlike Delgado’s workers or Drayton’s passengers, Hintze 

did not encounter officers in a place in which he had already 

voluntarily restricted his own movement. Rather, at the time of 

this encounter, he was sitting on a park bench on an open and 

public path. Until officers arrived and positioned themselves 

between Hintze and the path, Hintze would have been entirely 

free to get up and leave. These cases are therefore distinguishable 

on that basis alone.

¶159 Second, in Delgado, “INS placed agents near the exits of the 

factory sites” and “near the factory doors.” 466 U.S. at 218 

(emphases added). The Supreme Court took note of this precise 

positioning, explaining that the “presence of agents by the exits 

posed no reasonable threat of detention to these workers while 

they walked throughout the factories on job assignments.” Id. at 

219 (emphasis added). The positioning in Drayton was similar. 

There, one officer was near the front of the bus; but even so, the 

Court thought his presence there was non-coercive because, by 

kneeling on the driver’s seat and facing the rear of the bus, he was 

not “blocking the aisle or otherwise obstructing the bus exit.” 536 
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20200787-CA 69 2022 UT App 117

U.S. at 198. The same was true for his partner, who approached 

passengers while standing “next to or just behind each passenger 

with whom he spoke” to “avoid blocking the aisle.” Id. (emphasis 

added).

¶160 This stands in contrast to what happened here. Again, the 

three officers positioned themselves and their bikes in between 

Hintze and the path by which he would conceivably leave. If he 

tried walking away from the encounter, Hintze would have had 

to brush by these uniformed officers or their bikes. I’m hard 

pressed to imagine that an ordinary citizen would feel 

comfortable doing so in an attempt to terminate an encounter, 

particularly while the officers were in the act of asking him 

questions, and I’m likewise hard pressed to imagine that police 

officers would ever regard this as acceptable behavior. This is 

therefore strongly suggestive that a seizure occurred.

¶161 Third, the nature of the questioning. An officer can 

“approach[] a citizen and ask[] questions” without moving 

beyond a level one encounter. Mitchell, 2019 UT App 190, ¶ 12. In 

this sense, officers do not seize a person by “merely approaching 

an individual on the street or in another public place, by asking 

him if he is willing to answer some questions,” or “by putting 

questions to him if the person is willing to listen.” Bostick, 501 U.S. 

at 434 (quotation simplified).

¶162 But even so, the “manner of questioning, the content of the 

questions, and the context in which the questions are being asked 

can convert mere questioning into a level two seizure if, under all 

of the circumstances, a reasonable person would not feel free to 

leave.” State v. Alverez, 2006 UT 61, ¶ 12, 147 P.3d 425 (quotation 

simplified). With respect to the manner of questioning, “the use 

of language or tone of voice indicating that compliance with the 

officer’s request might be compelled” can suggest that the 

conversation is coercive. Mendenhall, 446 U.S. at 554. And with 

respect to the content of the questions, questions that are 
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20200787-CA 70 2022 UT App 117

“accusatory in nature” are suggestive that a detention is 

underway. Alverez, 2006 UT 61, ¶ 12.

¶163 Here, the district court found that the officers’ “tone of 

voice was normal,” and Hintze hasn’t challenged that finding on 

appeal. But even so, I regard the content of the questioning as 

having been at least somewhat accusatory in nature from

essentially the start of the encounter. The officers did not 

approach Hintze and begin by casually “asking him if he [was] 

willing to answer some questions” or anything similar. Bostick, 

501 U.S. at 434 (quotation simplified). Rather, as the officers 

approached, the first officer asked, “[H]ow’s it going guys? How 

old are you guys?” As noted by the district court, this question 

about Hintze’s and the teenager’s ages came “very quick[].” After 

Hintze and the teenager responded, the first officer then asked 

Hintze about his relationship to the teenager. When Hintze said 

that they were siblings, the officer told Hintze that he thought 

Hintze didn’t “look like” the teenager’s sibling. The officer then 

immediately asked Hintze several follow-up questions about the 

nature of his relationship to the teenager, and Hintze’s shifting 

answers were in response to those questions.

¶164 As discussed below, it’s true that a person’s shifting story 

can contribute to a determination that reasonable suspicion 

existed. But the initial issue here is whether Hintze had already 

been seized. And on that front, it matters that these officers didn’t 

casually approach Hintze and ask him if he was willing to answer 

questions; rather, when they approached Hintze, the lead officer 

started by asking questions about his age and relationship to the 

teenager (questions that by their nature already suggested some 

degree of suspicion by the officer), and when Hintze answered the 

first question about his relationship to the teenager, the officer 

responded by openly questioning the truthfulness of Hintze’s 

answer. At that moment, the questioning had become accusatory. 

Because Hintze was now being asked accusatory questions, this, 

too, suggested that he was no longer “free to disregard the 
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20200787-CA 71 2022 UT App 117

questions, get [off the bench], and [walk] away.” Alverez, 2006 UT 

61, ¶ 12.

* * * * *

¶165 This all leads back to the questions of whether a seizure 

occurred, and, if so, when. And again, when assessing this, we 

must consider the totality of the circumstances. So to recap, two 

citizens were approached by three uniformed officers, the officers 

were armed, and the officers almost immediately positioned 

themselves and their bikes between Hintze and the path that he 

would take if he tried to leave. After the lead officer asked about 

Hintze’s relationship to the teenager, the officer asked follow-up 

questions that suggested that he thought Hintze was not telling 

him the truth. All of this occurred before the officer asked Hintze 

for his name, which is the question that led to the incriminating 

information about Hintze’s sex offender status (and park 

visitation restrictions) and which is accordingly the information 

at issue in Hintze’s motion to suppress.

¶166 Under these circumstances, I don’t believe that an ordinary 

person in Hintze’s position would have felt free to stand up, brush 

by the officers, ignore the pending accusatory questions, and 

terminate the encounter. Because of this, I agree with Hintze that 

he had been seized by the time he gave his name to the officers.

B. Reasonable Suspicion

¶167 “Having determined that a level two Fourth Amendment 

seizure did occur in this case,” I would then “turn to whether the 

officers had a reasonable and articulable suspicion of criminal 

activity in order to justify [the] detention.” Alverez, 2006 UT 61, 

¶ 13. “Reasonable suspicion requires an objectively reasonable 

belief that an individual is engaged in or is about to be engaged 

in criminal activity.” State v. Gurule, 2013 UT 58, ¶ 32, 321 P.3d 

1039 (quotation simplified). While “officers need not rule out the 
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20200787-CA 72 2022 UT App 117

possibility of innocent conduct, and the likelihood of criminal 

activity need not rise to the level required for probable cause,

reasonable suspicion must be supported by specific and

articulable facts and rational inferences,” and it “cannot be merely 

an inchoate and unparticularized suspicion or hunch.” Id.

(quotation simplified). When conducting this analysis, we “look 

to the totality of the circumstances to determine whether, taken 

together, the facts warranted further investigation by the police 

officer[s].” Alverez, 2006 UT 61, ¶ 14 (quotation simplified).

¶168 “Here, the parties do not contest the objective facts 

apparent to” the officers “or the order in which they occurred.” 

State v. Simons, 2013 UT 3, ¶ 23, 296 P.3d 721. I think the potentially 

relevant circumstances here are these:

• Officers saw Hintze and a teenage girl sitting on a park 

bench together.

• Hintze and the teenager had different complexions.12

• Officers approached the two, asked them their ages, and 

asked them about their relationship.

• In response to the question about their ages, officers 

learned that Hintze was twenty-three and the teenager was 

thirteen.

• After Hintze gave an initial response to the question about 

their relationship, the questioning officer suggested that he 

thought Hintze was not telling the truth.

12. The officer seemed to think that the difference in complexions 

mattered because it might suggest that the two were not 

biologically related.
State v. Hintze

20200787-CA 73 2022 UT App 117

• In response to further questioning, Hintze gave shifting 

answers about his relationship to the teenager.

• Moments later, the officer asked Hintze for his name.

The question, then, is whether the circumstances prior to Hintze 

being seized supported a reasonable suspicion that criminal 

activity was underway, thereby justifying the investigatory 

detention.

¶169 It’s true that Hintze and the teenager were of different ages 

and complexions and were sitting together on a park bench. But 

to support a seizure—i.e., to give officers the authority to restrain 

their movement—there must have been a reasonable suspicion 

that “criminal activity [was] afoot.” Terry v. Ohio, 392 U.S. 1, 30 

(1968). Here, when officers saw the pair, they weren’t holding 

hands or kissing; in fact, they weren’t even touching each other. 

They also weren’t hiding or sitting in a secluded place. Rather, 

they were eating snacks on a public park bench in the middle of 

the day. Moreover, they didn’t “attempt to leave the area when 

the police approached.” State v. Goddard, 2021 UT App 124, ¶ 27, 

501 P.3d 1188; cf. Illinois v. Wardlow, 528 U.S. 119, 124 (2000) 

(explaining that an individual’s “unprovoked flight” or “evasive 

behavior” can be “pertinent” “in determining reasonable 

suspicion”). Instead, as officers approached, the two remained 

seated on the bench, apparently unconcerned. So without 

something more, I don’t believe that there would be a reasonable 

basis at that point for suspecting that something criminal was 

afoot.

¶170 The “something more” that the State points to is the fact 

that Hintze then gave shifting answers to the lead officer’s 

questions about the nature of his relationship with the teenager. 

And I do recognize that a person’s shifting answers to questions 

from an officer can contribute to reasonable suspicion. See State v. 

Duhaime, 2011 UT App 209, ¶ 15, 258 P.3d 649 (recognizing that 
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20200787-CA 74 2022 UT App 117

“vague, inconsistent or evasive answers” can support reasonable 

suspicion (quotation simplified)); State v. Little, 2012 UT App 168, 

¶ 5, 280 P.3d 1072 (noting that “the officers developed additional 

reasonable suspicion upon hearing the inconsistent stories told 

by” the defendant and his mother).

¶171 But even so, I believe that Hintze had already been seized 

before he started giving those shifting answers. Again, three 

uniformed officers approached Hintze and positioned themselves 

and their bikes around him, positioning themselves directly 

between him and the path by which he would conceivably leave. 

This was likely enough by itself to constitute a seizure. But even 

if it wasn’t, I believe that Hintze was seized when the first officer 

started the conversation by almost immediately asking accusatory 

questions and then questioning Hintze’s initial answers.

¶172 Thus, even before Hintze’s story had started to 

meaningfully shift, the officers had already blocked his 

movement and communicated to him that he was suspected of 

wrongdoing. At that moment, a reasonable person would not 

have felt free to leave. But at that moment, there also wasn’t yet a 

reasonable basis for suspecting that Hintze was engaged in or 

about to engage in criminal conduct. Because of this, I believe that 

the district court erred in denying Hintze’s motion to suppress.

¶173 In short, I disagree with the majority’s conclusion that 

Hintze’s right to a speedy trial was violated. But even so, I agree 

with Hintze that officers unlawfully seized him without 

reasonable suspicion. I would therefore remand the case for 

further proceedings consistent with that result.