This opinion is subject to revision before final

publication in the Pacific Reporter

296 P.3d 721

2013 UT 3

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Plaintiff and Respondent,

v.

MILO SIMONS,

Defendant and Petitioner.

No. 20110842

Filed January 25, 2013

On Certiorari to the Utah Court of Appeals

Fourth District, Provo Dep’t

The Honorable James R. Taylor

No. 061404283

Attorneys:

John E. Swallow, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen., 

Salt Lake City, for respondent

Douglas J. Thompson, Provo, for petitioner

JUSTICE PARRISH authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING, 

and JUSTICE DURHAM joined.

JUSTICE LEE filed a concurring opinion.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 On certiorari, petitioner Milo Simons asks us to determine

whether the court of appeals erred in affirming the district court’s

denial of his motion to suppress evidence on Fourth Amendment

grounds. Simons, a passenger in a vehicle stopped for a traffic

infraction, was arrested for possession of methamphetamine after

being questioned and searched by Deputy Sheriff John Luke.

Simons unsuccessfully moved to suppress the fruits of the search in

the district court and then unsuccessfully appealed to the court of

appeals.
STATE v. SIMONS

Opinion of the Court

1

 We recite the facts based on testimony offered at a preliminary

hearing conducted in the Fourth District Court before Judge James

R. Taylor.

2

¶2 Simons argues the court of appeals erred in affirming the

district court because Deputy Luke improperly extended the length

of a detention that began as a routine traffic stop without any

reasonable suspicion that Simons was engaged in criminal activity.

The State counters that Deputy Luke’s investigation was proper

because he had reasonable suspicion to question Simons. The State

alternatively argues that Deputy Luke did not impermissibly extend

the duration of the detention when he asked Simons a single

question in the midst of Deputy Luke’s investigation of the driver.

¶3 We hold that Deputy Luke’s questioning of Simons, during

which Simons admitted to possession of illegal drugs and

paraphernalia, was proper based on Deputy Luke’s reasonable

suspicion occasioned by the driver’s likely impairment and the

presence of used drug paraphernalia in plain sight. We further hold

that Deputy Luke did not improperly extend the duration of Simons

detention because Deputy Luke’s single question to Simons resulted

in only a de minimis extension of the otherwise lawful detention.

BACKGROUND

¶4 “Because the legal analysis of a search and seizure case is

highly fact dependent, we recite the facts in detail.”1

 State v. Hansen,

2002 UT 125, ¶ 5, 63 P.3d 650 (citation omitted) (internal quotation

marks omitted). On October 12, 2006, Deputy Sheriff John Luke was

on patrol with a deputy-in-training, Deputy Thomas. While

patrolling SR-77 near Springville, the deputies saw a car traveling

ten miles above the speed limit. The deputies paced the car and ran

a records check. After determining the car was uninsured, Deputy

Thomas initiated a traffic stop and made contact with the driver,

Kevin Sorensen. Deputy Luke approached the passenger side of the

vehicle.

¶5 After Deputy Thomas spoke with Sorensen, the deputies

conferred at the front of the patrol car. Deputy Luke then

approached the driver’s side of the vehicle to collect Sorensen’s

license and registration. Although he did not smell alcohol, Deputy

Luke believed Sorensen was impaired because “[Sorensen] had very

watery eyes that were bloodshot [and] . . . [h]e had very rapid

speech[,] movement[,] . . . [and] body language.” When Deputy

Luke returned to his patrol car to conduct a records check, he
Cite as: 2013 UT 3

Opinion of the Court

2

 In doing so, Mr. Simons reserved his right to appeal the denial

of his motion to suppress. See State v. Sery, 758 P.2d 935, 939 (Utah

(continued...)

3

observed that Sorensen’s “movements [were] . . . very agitated. He

moved constantly touching his mirror several times, moving his

head several times.” Deputy Luke determined that Sorensen’s

continued erratic behavior “was a possible sign of impairment.”

¶6 When Deputy Luke reapproached the driver’s side of the

vehicle, he testified that “Sorensen . . . forced his face towards the

window . . . [and] blurted [] out . . . I’m not drunk, I haven’t been

drinking, look at my eyes.” Deputy Luke then ordered Sorensen out

of the vehicle to check for intoxication. As Sorensen exited the

vehicle, Deputy Luke saw in the driver’s side door compartment

several “baggies that had been chewed on.” Based on his experience

and the presence of a “white powder of a small crystal residue” in

at least one of the baggies, Deputy Luke believed the baggies to be

drug paraphernalia.

¶7 While Deputy Luke was investigating his suspicion of

Sorensen’s impairment, he briefly turned his attention to Simons

based on Deputy Luke’s belief that both men were involved in illegal

drug use. Deputy Luke “explained to [Simons] that [he] had found

paraphernalia in the car and asked [Simons] if he had anything on

his person [Deputy Luke] need[ed] to know about.” Simons

admitted to having a pipe in his underwear and, at Deputy Luke’s

command, shook a methamphetamine pipe from his pants. The

deputies then continued with Sorensen’s arrest, finding

methamphetamine in a search incident to arrest. Shortly after the

completion of Sorensen’s arrest, Simons told Deputy Luke that “he

had some [methamphetamine] in his pocket.” The deputies

thereafter arrested Simons.

¶8 Simons was charged with possession of drug paraphernalia

and possession of a controlled substance. He moved to suppress the

evidence obtained during the traffic stop, alleging violations of the

Fourth Amendment to the United States Constitution and Article I,

section 14 of the Utah Constitution. The district court denied the

motion, ruling that evidence of used drug paraphernalia in plain

sight, “coupled with the signs of possible impairment [of the driver,]

le[]d to a reasonable suspicion and concern about both occupants of

the car.” Simons subsequently entered a conditional guilty plea to

possession of a controlled substance2

 and was sentenced to a
STATE v. SIMONS

Opinion of the Court

2

 (...continued)

Ct. App. 1988).

4

suspended prison term of five years with thirty-six months

probation.

¶9 Simons timely appealed and the court of appeals affirmed

the district court’s denial of his motion to suppress. State v. Simons,

2011 UT App 251, ¶ 11, 262 P.3d 53. The appellate court found that

it “need not determine whether Deputy Luke’s questioning of

Simons was supported by reasonable suspicion” as the district court

had concluded. Id. ¶ 6. Rather, it held that because Deputy Luke’s

inquiry “did not measurably extend the length of the traffic stop or

render the overall duration of the stop unreasonable,” the inquiry

was constitutional. Id. ¶ 11.

¶10 We granted certiorari on the issue of whether the court of

appeals erred in affirming the district court’s denial of Simons’s

motion to suppress evidence on Fourth Amendment grounds. We

affirm the court of appeals’ holding that the district court’s denial of

Simons’s motion to suppress was proper. Deputy Luke’s

investigation of Simons was supported by his reasonable suspicion

that Simons was engaged in criminal activity based on the chewed

baggies and Sorensen’s apparent impairment. Additionally, Deputy

Luke’s solitary question to Simons did not unconstitutionally extend

the duration of the stop.

STANDARD OF REVIEW

¶11 “On certiorari, we review the decision of the court of

appeals and not that of the district court.” State v. Brake, 2004 UT 95,

¶ 11, 103 P.3d 699. We review “the decision of the court of appeals

for correctness, giving no deference to its conclusions of law.” State

v. Baker, 2010 UT 18, ¶ 7, 229 P.3d 650. “[B]ecause there must be

state-wide standards that guide law enforcement and prosecutorial

officials,” State v. Hansen, 2002 UT 125, ¶ 26, 63 P.3d 650 (internal

quotation marks omitted), we afford no deference to the district

court’s “application of law to the underlying factual findings in

search and seizure cases.” Brake, 2004 UT 95, ¶ 15.

¶12 Because this case turns, in part, on the presence or absence

of reasonable suspicion, we state the legal standard under which it

is reviewed. Though reasonable suspicion “is highly fact dependent

and the fact patterns are quite variable,” the determination that

reasonable suspicion exists is not a factual one. State v. Chapman, 921
Cite as: 2013 UT 3

Opinion of the Court

5

P.2d 446, 450 (Utah 1996) (internal quotation marks omitted).

Rather, “whether a particular set of facts gives rise to reasonable

suspicion is a question of law, which [we] review[] for correctness.”

Id.

ANALYSIS

I. SIMONS’S INITIAL DETENTION WAS PROPER

¶13 We begin our analysis with Simons’s initial detention

stemming from Sorensen’s traffic violation. Simons argues that his

detention was unconstitutional under the Fourth Amendment to the

United States Constitution and Article I, section 14 of the Utah

Constitution. Under the primacy doctrine, “[t]he fact that the state

and federal constitutional language is identical does not require a

claimant to create some threshold for independent analysis of the

state language. This court, not the United States Supreme Court, has

the authority and obligation to interpret Utah’s constitutional

guarantees . . . .” State v. Tiedemann, 2007 UT 49, ¶ 33, 162 P.3d 1106.

Unlike the petitioner in Tiedemann, however, Simons did not “clearly

raise[] and extensively brief [his] state law claims.” Id. ¶ 32. In fact,

Simons does not present any support for his claim under Article I,

section 14 of the Utah Constitution. We therefore review the

constitutionality of the detention only under the Fourth Amendment

to the United States Constitution. See U.S. CONST. amend. IV

(applied to the states through the Fourteenth Amendment).

¶14 The Fourth Amendment protects United States citizens from

“unreasonable searches and seizures.” Id. “Although police must

have a warrant to conduct most searches and seizures, officers may

temporarily detain a vehicle and its occupants upon reasonable

suspicion of criminal activity for the purpose of conducting a limited

investigation of the suspicion.” State v. Baker, 2010 UT 18, ¶ 11, 229

P.3d 650 (internal quotation marks omitted). Under the Fourth

Amendment, we apply a two-part test to determine whether a traffic

stop is reasonable. Id. ¶ 12. “The first step is to determine whether

the police officer’s action was justified at its inception.” Id. (internal

quotation marks omitted). If so, we proceed to the second step,

where we “determine whether the detention following the stop was

reasonably related in scope to the circumstances that justified the

interference in the first place.” Id. (internal quotation marks

omitted).

¶15 Simons concedes that Luke was justified in stopping the

vehicle for a speeding violation. See State v. Lopez, 873 P.2d 1127,

1132 (Utah 1994) (“[A] police officer is constitutionally justified in
STATE v. SIMONS

Opinion of the Court

6

stopping a vehicle if the stop is incident to a traffic violation

committed in the [officer’s] presence.” (internal quotation marks

omitted)). Once the deputies made contact with the driver, they

were further justified in detaining Simons to “request [Sorensen’s]

driver’s license and vehicle registration, conduct a computer check,

and issue a citation.” State v. Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650;

see also Arizona v. Johnson, 555 U.S. 323, 333 (2009) (“The temporary

seizure of the driver and passengers ordinarily continues, and

remains reasonable, for the duration of the stop.”).

¶16 Had the stop concluded with the issuance of a citation,

“[a]ny further temporary detention for investigative questioning . . .

[would have] constitute[d] an illegal seizure” unless the deputies

developed, at minimum, “reasonable suspicion of a further

illegality.“ Hansen, 2002 UT 125, ¶ 31 (internal quotation marks

omitted). Here, the vehicle occupants’ continued detention was

justified by Deputy Luke’s reasonable suspicion that Sorensen was

driving while impaired.

 II. SIMONS’S CONTINUED DETENTION WAS 

PROPER WHILE THE DEPUTIES INVESTIGATED 

SORENSEN’S POSSIBLE IMPAIRMENT

¶17 The length of a detention associated with a traffic stop can

be properly extended “[i]f, during the scope of the traffic stop, the

officer forms new reasonable articulable suspicion of criminal

activity.” State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650. In such a

case, “the officer may . . . expediently investigate his new suspicion.”

Id. But “officers must diligently pursue a means of investigation that

is likely to confirm or dispel their suspicions quickly.” State v.

Morris, 2011 UT 40, ¶ 18, 259 P.3d 116 (internal quotation marks

omitted).

¶18 Simons concedes that Deputy Luke “legitimately developed

additional information that Sorensen may have been driving

impaired . . . [and that] Simons’[s] further detention to facilitate

[Deputy] Luke’s investigation of Sorensen was justified.” See State

v. Gettling, 2010 UT 17, ¶ 5, 229 P.3d 647 (“If, during the course of a

lawful traffic stop, an officer gains further suspicion that a vehicle

occupant is engaged in illegal activity, the officer can detain the

vehicle [and its occupants] further in order to investigate.”). Even

though at this point Deputy Luke had no reasonable suspicion that

Simons was engaged in criminal activity, Simons’s continued

detention was justified while Luke investigated Sorensen. 

¶19 As part of his investigation of Sorensen, Deputy Luke
Cite as: 2013 UT 3

Opinion of the Court

7

planned to conduct field sobriety tests. As Sorensen exited the car,

Deputy Luke noticed, in plain view, “several baggies that had been

chewed on,” one of which contained “a white powder of a small

crystal residue.” Deputy Luke testified that, in his experience, those

types of baggies were used to carry drugs, and based on the white

powder inside, he suspected the baggies contained

methamphetamine.

¶20 It was at this point that Deputy Luke turned his attention to

Simons. The State argues that Deputy Luke’s single question to

Simons was proper because the presence of the chewed baggies, in

combination with Sorensen’s possible impairment, gave Deputy

Luke reasonable suspicion to suspect that Simons “also possessed

contraband or was otherwise involved in drug activity.” Simons

counters that these facts “[did] not justify [an] inference implicating

Simons in any criminal conduct [nor did they] create reasonable

suspicion to independently detain or investigate Simons.” We agree

with the State and hold that “the objective facts known to [Deputy

Luke] and evaluated in light of [his] experience” gave rise to

reasonable suspicion that Simons was engaged in drug activity.

Deputy Luke’s questioning of Simons was therefore justified by

reasonable suspicion.

III. DEPUTY LUKE’S QUESTION OF SIMONS WAS PROPER

BASED ON REASONABLE SUSPICION

¶21 “[I]t is settled law that a police officer may detain and

question an individual when the officer has reasonable, articulable

suspicion that the person has been, is, or is about to be engaged in

criminal activity.” State v. Markland, 2005 UT 26, ¶ 10, 112 P.3d 507

(internal quotation marks omitted). To detain an individual under

such circumstances, the “officer’s suspicion must be supported by

specific and articulable facts and rational inferences, and cannot be

merely an inchoate and unparticularized suspicion or hunch.” Id.

(citation omitted) (internal quotation marks omitted). “A

determination that reasonable suspicion exists, however, need not

rule out the possibility of innocent conduct.” United States v. Arvizu,

534 U.S. 266, 277 (2002). Further, “the likelihood of criminal activity

need not rise to the level required for probable cause, and it falls

considerably short of satisfying a preponderance of the evidence

standard.” Id. at 274.

¶22 When reviewing a scenario to determine if reasonable

suspicion justified an investigative detention, we “view the

articulable facts in their totality . . . [and] judge the officer’s conduct
STATE v. SIMONS

Opinion of the Court

8

in light of common sense and ordinary human experience.”

Markland, 2005 UT 26, ¶ 11 (internal quotation marks omitted). In so

doing, we “accord deference to an officer’s ability to distinguish

between innocent and suspicious actions.” Id. (citation omitted)

(internal quotation marks omitted).

¶23 Here, the parties do not contest the objective facts apparent

to Deputy Luke, or the order in which they occurred. The parties

disagree, however, on whether Deputy Luke’s observations were

enough to constitute particularized reasonable suspicion with

respect to Simons. We conclude that the presence in the car of

multiple, chewed baggies, at least one of which contained a white

powder, in addition to the driver’s apparent impairment, gave rise

to reasonable suspicion that Simons was using or possessed illegal

drugs. Deputy Luke’s question to Simons was, therefore,

constitutional. Our conclusion comports with both the precedent of

the United States Supreme Court and with our own recent search

and seizure cases.

¶24 In Maryland v. Pringle, the Court held that an officer had

probable cause to believe that a front-seat passenger illegally

possessed cocaine when that cocaine was found hidden behind the

back-seat armrest of the vehicle in which he was travelling with two

others. 540 U.S. 366 (2003). The Court began by stating, “It is

uncontested [that] . . . upon recovering the five . . . baggies . . . [the

officer] had probable cause to believe a felony had been committed.”

Id. at 370. The Court answered in the affirmative the question of

whether “the officer had probable cause to believe that [the

defendant] committed that crime.” Id. It found that because none

of the occupants claimed ownership, “[t]he quantity of drugs and

cash in the car indicated the likelihood of drug dealing,” and found

that it was “reasonable for the officer to infer a common enterprise.”

Id. at 373.

¶25 The Court explicitly distinguished its analysis in Pringle

with that in Ybarra v. Illinois. 444 U.S. 85 (1979). In Ybarra, the Court

held that a search warrant authorizing the search of a public tavern

and its barkeep did not permit officers to search a tavern patron

without reasonable belief that the patron was armed and dangerous

or involved in criminal activity. 444 U.S. at 92–94. The Court

reasoned that “a person’s mere propinquity to others independently

suspected of criminal activity does not, without more, give rise to

probable cause to search that person.” Id. at 91. In contrast, the

Pringle Court highlighted the fact that “Pringle and his two

companions were in a relatively small automobile, not a public
Cite as: 2013 UT 3

Opinion of the Court

9

tavern.” Pringle, 540 U.S. at 373. The Court reasoned that a “car

passenger—unlike the unwitting tavern patron in Ybarra—will often

be engaged in a common enterprise with the driver, and have the

same interest in concealing the fruits or the evidence of their

wrongdoing.” Id. (internal quotation marks omitted).

¶26 Though the facts in Pringle differ somewhat from those

here, its analysis is nonetheless instructive. First, the Pringle Court

implicitly recognized that an officer confronted with the discovery

of drugs in a car may at least question the driver and passengers

regarding the presence of those drugs. Thus, Deputy Luke was

justified in questioning Simons regarding the presence of drugs and

paraphernalia. In answer to Deputy Luke’s one question, Simons

admitted possession of drug paraphernalia. This admission gave

Deputy Luke independent probable cause to permissibly extend

Simons detention. Just as the presence of drugs in the car in which

Pringle was an occupant gave rise to probable cause that Pringle was

guilty of possession, the presence of used drug paraphernalia in the

car driven by Sorensen gave rise to a reasonable suspicion that he or

Simons or both men possessed or were using illegal drugs.

¶27 Though the contraband in each case was different, the

actions of the officers in both cases were concomitant with the

evidence. See State v. Morris, 2011 UT 40, ¶ 29, 259 P.3d 116 (“The

standard for reasonable suspicion is relatively low. Indeed, the

likelihood of criminal activity need not rise to the level required for

probable cause, and it falls considerably short of satisfying a

preponderance of the evidence standard.” (internal quotation marks

omitted)).

¶28 Our holding that Deputy Luke’s question of Simons was

supported by reasonable suspicion likewise aligns with our

conclusion that there was reasonable suspicion of drug activity in

our recent opinion in State v. Baker. 2010 UT 18, 229 P.3d 650.

Though the outcome of Baker turned on the determination that

officers found the evidence giving rise to reasonable suspicion only

after they had improperly extended the duration of the traffic stop

for a dog sniff, we reasoned in that case that the officers had

reasonable suspicion of drug possession because “the license of the

driver had been suspended for drugs and that [the dog] sniff had

revealed the presence of narcotics in the vehicle.” Id. ¶ 52. As in the

present case, Baker was a passenger in a car stopped for a routine

traffic violation and gave no independent signs that he was impaired

by or possessed drugs. See id. ¶ 3. But we concluded that the

officers’ reasonable suspicion was nonetheless justified by the likely
STATE v. SIMONS

Opinion of the Court

10

presence of drugs in the car and knowledge of the driver’s drug

history. Id. ¶ 52. Just as such evidence was enough to give rise to

the officers’ reasonable suspicion in Baker, the presence of chewed

baggies containing white powder and Sorensen’s apparent

impairment provide the requisite evidence for a finding of

reasonable suspicion in this case.

IV. DEPUTY LUKE’S ONE BRIEF QUESTION TO 

SIMONS DID NOT UNCONSTITUTIONALLY 

EXTEND THE DETENTION 

¶29 While we uphold Deputy Luke’s questioning of Simons

based on the existence of reasonable suspicion, the fact that Deputy

Luke’s question resulted in only a de minimis extension of the stop

provides an alternative basis for upholding the constitutional

validity of the search. Under the controlling Supreme Court

precedent of Arizona v. Johnson, Deputy Luke’s single question did

not improperly extend Simons’s detention. 555 U.S. 323 (2009).

Where Deputy Luke diligently pursued his investigation of

Sorensen’s apparent impairment and his “inquir[y] [of Simons] d[id]

not measurably extend the duration of the stop,” it passes

constitutional muster under the Fourth Amendment. Id. at 333. 

¶30 The Court in Johnson held that “[a]n officer’s inquiries into

matters unrelated to the justification for the traffic stop . . . do not

convert the encounter into something other than a lawful seizure, so

long as those inquiries do not measurably extend the duration of the

stop.” Id. (finding that an officer’s unrelated questions leading to the

arrest of a back-seat passenger originally detained as part of a traffic

stop were proper). The Court did not, however, elucidate the length

of time or the number of questions that would “measurably extend

the duration of the stop.” Id. This direction lacking, we are

reminded that “the touchstone of the Fourth Amendment is

reasonableness . . . [which] is measured in objective terms by

examining the totality of the circumstances.” Ohio v. Robinette, 519

U.S. 33, 39 (1996) (citation omitted) (internal quotation marks

omitted); see also State v. Baker, 2010 UT 18, ¶ 17, 229 P.3d 650 (“There

is no bright-line test that indicates an appropriate length for a

traffic-stop detention; rather, we consider the totality of the

circumstances surrounding the stop to determine whether the length

and scope of the detention were reasonable.”).

¶31 While we have yet to consider the scope of the de minimis

extension doctrine articulated by the Court in Johnson, federal circuit

courts applying Johnson provide some direction. For instance, the
Cite as: 2013 UT 3

Opinion of the Court

11

United States Court of Appeals for the Sixth Circuit held that an

officer’s single question about the possession of firearms or drugs

“did not render the traffic stop [for a minor infraction] an

unreasonable seizure under the Fourth Amendment.” United States

v. Everett, 601 F.3d 484, 496 (6th Cir. 2010). The Court reasoned that

“[i]t cannot be said that this single question . . . constituted a

definitive abandonment of the prosecution of the traffic stop in favor

of a sustained investigation into drug or firearm offenses. Nor did

this single question, taking [only] seconds, constitute the bulk of the

interaction . . . .” Id. at 495 (footnote omitted); see also United States

v. Dixie, 382 Fed. Appx. 517, 519–20 (7th Cir. 2010) (holding that an

officer’s single, unrelated question regarding weapons that took

“only seconds” did not unreasonably extend traffic stop). 

¶32 Similarly, the United States Court of Appeals for the Fourth

Circuit in United States v. Mason held that an officer did not

unconstitutionally prolong a traffic stop when the officer asked one

to one and a half minutes worth of questions unrelated to the

purpose of the original traffic stop, some of which were directed at

the passenger. 628 F.3d 123, 131–33 (4th Cir. 2010). The court

reasoned that, under Johnson, “[an] officer may briefly ask questions

unrelated to the stop. For instance, [the question] ‘How ‘bout them

Georgia Bulldogs?’ do[es] not implicate the Fourth Amendment,

provided that the unrelated questioning does not extend the

encounter beyond the period reasonably necessary to effectuate the

purposes of the lawful detention.” Id. at 131. But the court made

clear that “a traffic stop may not be extended beyond the time

reasonably necessary to effectuate the stop, absent reasonable

suspicion justifying further detention . . . .” Id. at 132 (emphasis

omitted). See also United States v. Stepp, 680 F.3d 651, 663 (6th Cir.

2012) (noting that a “dog sniff may render an otherwise lawful

seizure unlawful . . . if it unreasonably prolongs the initial stop and

the officer lacked an independent reasonable suspicion to extend the

stop”); United States v. Macias, 658 F.3d 509, 518 (5th Cir. 2011)

(stating that “an officer can ask unrelated questions that

[measurably] extend the duration of the stop if—but only if—the

officer has reasonable suspicion sufficient to support the continued

detention” (internal quotation marks omitted)).

¶33 The facts in United States v. Digiovanni are particularly

helpful in defining the parameters of the de minimis extension

doctrine recognized in Johnson. In Digiovanni, the United States

Court of Appeals for the Fourth Circuit declared an officer’s

“extensive and time-consuming” unrelated questioning, absent
STATE v. SIMONS

Opinion of the Court

3

 This requirement accords with our holdings in State v. Hansen,

2002 UT 125, 63 P.3d 650; State v. Gettling, 2010 UT 17, 229 P.3d 647;

State v. Baker, 2010 UT 18, 229 P.3d 650; and State v. Morris, 2011 UT

40, 259 P.3d 116. In Hansen, the officer’s unrelated question was

(continued...)

12

reasonable suspicion, to be unconstitutional. 650 F.3d 498, 510 (4th

Cir. 2011). “The record . . . ma[de] clear that at just about every turn

[the officer] was conducting a drug investigation instead of a traffic

infraction investigation.” Id. Recognizing that Johnson allows some

unrelated questioning, the court found that the officer’s “actions and

questions . . . besp[oke] an utter lack of diligence” in pursuing the

original purpose of the traffic stop. Id. citing United States v. Sharpe,

470 U.S. 675, 686 (1985), the Digiovanni court made clear that an

officer “must diligently pursue the investigation of the justification

for the [original] stop.” 650 F.3d at 509. Though officers are “not

require[d] . . . to move at top speed . . . the officer’s overall course of

action during a traffic stop, viewed objectively and in its totality,

[must be] reasonably directed toward the proper ends of the stop.”

Everett, 601 F.3d at 495 (citation omitted) (internal quotation marks

omitted).

¶34 The analysis of whether an officer diligently pursued the

original purpose of a stop is necessarily a fact-bound inquiry. And

on the facts before us, we cannot say that Deputy Luke’s single

question was improper. The question, “[Do you] ha[ve] anything on

[your] person I need to know about?” lasted only seconds and did

not measurably extend the duration of the detention. Had Deputy

Luke abandoned his investigation of Sorensen or focused the bulk

of his investigation on Simons without reasonable suspicion, the

outcome of this analysis would likely be different. But those are not

the facts presented here.

¶35 Although Johnson allows for a de minimis extension at any

point before the conclusion of an otherwise lawful detention, we

pause to clarify “that once the lawful purpose of the stop has

concluded, the occupants of the vehicle must be released from their

temporary seizure.” Baker, 2010 UT 18, ¶ 17. When the lawful

purpose of the stop has concluded, whether at the issuance of a

warning or a ticket, or with the arrest or dismissal of the detainee,

any further questioning, investigation, or detention requires

reasonable suspicion and is subject to fresh scrutiny under the

Fourth Amendment.3
Cite as: 2013 UT 3

Opinion of the Court

3

 (...continued)

unconstitutional because “the purpose for the initial traffic stop was

concluded” and the officer did not have reasonable suspicion of

further criminal activity. 2002 UT 125, ¶ 32. The dog sniffs in

Gettling and Baker were similarly improper because they occurred

after the original, lawful purpose of the stops had concluded and

there was no reasonable suspicion of additional criminal activity

prior to the dog sniffs. Gettling, 2010 UT 17, ¶ 6; Baker, 2010 UT 18,

¶ 58. Finally, in Morris we held that if an officer, “acting in good

faith[,] is reasonably mistaken about the grounds for a traffic stop,”

he may explain his mistake to the driver. 2011 UT 40, ¶ 1. But we

made clear that officers must then end the stop unless “new

reasonable suspicion of criminal activity immediately arises that

justifies further detention.” Id. ¶ 25.

4

 The Court’s holding in Arizona v. Johnson was based on the

notion that courts should not micromanage an officer’s control of a

traffic stop. 555 U.S. 323 (2009). It did not erase the constitutional

limitations that bracket such a traffic stop. Rather, the Court noted

that “[a] lawful roadside stop begins when a vehicle is pulled over

for investigation of a traffic violation.” Id. at 333. Reasonable

suspicion of a traffic violation or other illegality, at a minimum, is

necessary for officers to initially detain a motorist. And the Court

continued, stating, “[t]he temporary seizure of driver and passengers

ordinarily continues, and remains reasonable,” only “for the

duration of the stop.” Id. The Court did not suggest that an officer

could detain and investigate a motorist without reasonable suspicion

after a stop ends, when an officer has “no further need to control the

scene.” Id. The Court’s holding in Johnson therefore allows a de

minimus extension during a stop, even as such a stop is winding

(continued...)

13

¶36 We do not suggest that an officer must limit his off-topic

inquiries to the middle of an otherwise lawful detention, rather than

as such a stop comes to a close. Within the confines of an otherwise

lawful stop, “the touchstone of the Fourth Amendment is

reasonableness.” Robinette, 519 U.S. at 39 (internal quotation marks

omitted). But, “the stop ends when the police have no further need

to control the scene, and inform the driver and passengers they are

free to leave.” Johnson, 555 U.S. at 333. Because an officer controls

both the direction and duration of a stop, once the officer concludes

his investigation and terminates the stop, he cannot reinitiate the

stop without renewed reasonable suspicion.4

 
STATE v. SIMONS

Opinion of the Court

4

 (...continued)

down, but it does not preclude the necessity of reasonable suspicion

to initiate a stop or reinitiate a concluded stop. 

5

 The suggestion that an officer’s inquiries occurring after the

conclusion of a lawful stop are transformed into a voluntary

interaction rests on the questionable assumption that motorists are

certain of the duration of their original detainment. Precisely

because “officers . . . exercise unquestioned command of the

situation,” Johnson, 555 U.S. at 330 (internal quotation marks

omitted), “a traffic stop of a car communicates to a reasonable

passenger that he or she is not free to terminate the encounter with

the police and move about at will,” id. at 333. Nor would a motorist

realize that his or her detainment has transitioned into a voluntary

interaction until an officer “inform[s] the driver and passengers they

are free to leave.” Id. In light of such “unquestioned command,”

officers are free to pursue their investigation during the pendency of

a stop, even when that investigation entails a de minimis extension,

but they are required to demonstrate reasonable suspicion to further

detain a motorist after the conclusion of the original, lawful detention.

14

¶37 To reinitiate a concluded stop, an officer is required to

demonstrate reasonable suspicion, just as when the officer initiated

the original stop. The requirement of reasonable suspicion to initiate

a stop, or to reinitiate a concluded stop, cannot be supplanted by the

Fourth Amendment’s reasonableness analysis appropriate within

the context of the stop itself. Therefore, when an officer concludes

a stop, a detained motorist regains the full constitutional protection

of all other motorists of whom the officer does not have a reasonable

suspicion.5

¶38 While we recognize that a de minimis extension of a traffic

stop is not unconstitutional, we do not create a bright-line rule

governing the acceptable temporal duration of such a stop. Rather,

we hold only that officers must diligently pursue the original

purpose of the stop, and that while some unrelated questioning may

be tolerated, officers must remain focused on the original purpose

of the stop in the absence of reasonable suspicion justifying an

expanded investigation. Once officers complete the purpose of the

original stop and dispel any reasonable suspicion generated during

its pendency, they are then obligated to release the vehicle and its

occupants without delay.
Cite as: 2013 UT 3

JUSTICE LEE, concurring

1 See State v. Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650 (“Once the

purpose of the initial stop is concluded . . . the person must be

allowed to depart. Any further temporary detention for investigative

questioning after [fulfilling] the purpose for the initial traffic stop

(continued...)

15

CONCLUSION

¶39 The court of appeals correctly affirmed the district court’s

denial of Simons motion to suppress for two reasons. First, Deputy

Luke had reasonable suspicion to lawfully detain Simons. Second,

Deputy Luke’s single question to Simons was independently

justified because this brief inquiry did not measurably extend

Simons’s otherwise lawful detention.

JUSTICE LEE, concurring in part and concurring in the judgment:

¶40 I concur in the judgment of the court and in the bulk of its

analysis. As Justice Parrish’s majority opinion indicates, the

touchstone under the Fourth Amendment is reasonableness, and

that standard affords flexibility—not rigid time constraints—for

analysis of the constitutional length of a traffic stop. Supra ¶ 30. And

the reasonable breathing space afforded under the constitution

likewise leaves room for traffic stop extensions that are de minimis

in length but not independently justified by reasonable suspicion.

Supra ¶¶ 31–34. Otherwise, the constitution would be implicated by

such commonplace acts as a police officer’s small talk or rumination

about the weather. See supra ¶ 32 (citing United States v. Mason, 628

F.3d 123, 131 (4th Cir. 2010), for the proposition that the question

“‘How ‘bout them Georgia Bulldogs?’ do[es] not implicate the

Fourth Amendment”). 

¶41 I therefore agree with the majority’s decision affirming the

denial of Simons’s motion to suppress, as the extension of the traffic

stop in this case was minimal in length (and was, alternatively,

justified by reasonable suspicion in any event, supra ¶¶ 21–28). I

disagree, however, with the court’s assertion that the breathing

space for the length of a traffic stop somehow ends when the “lawful

purpose of the stop has concluded” by “issuance of a warning or a

ticket” or the “arrest or dismissal of the detainee.” Supra ¶ 35. Thus,

I would not hold that after such “conclusion” of a stop “any [even de

minimis] further questioning, investigation, or detention requires

reasonable suspicion.” Supra ¶ 35 (emphasis added).

¶42 That dictum preserves elements of our prior case law.1

 But
STATE v. SIMONS

JUSTICE LEE, concurring

1

 (...continued)

constitutes an illegal seizure, unless an officer has probable cause or

a reasonable suspicion of a further illegality” (second alteration in

original) (internal quotation marks omitted)); State v. Gettling, 2010

UT 17, ¶¶ 5–7, 229 P.3d 647 (declining to “adopt any de minimis

exception to a passenger’s Fourth Amendment rights in order to

allow officers to conduct a canine sniff after the lawful purpose of

the stop has concluded” because “[w]hen officers have concluded

their investigation of their initial suspicion and any further suspicion

that arose during the stop, they are required to end the detention”

(emphasis added)); State v. Baker, 2010 UT 18, ¶ 31, 229 P.3d 650

(concluding that “any detention of an individual after the purpose

for the initial detention has concluded violates the Fourth Amendment” (emphasis added)).

16

it is incompatible with the reasonableness criterion of the Fourth

Amendment as articulated by the U.S. Supreme Court, and it has

been overtaken by subsequent authority in this court (including the

logic of our opinion today). I would accordingly disavow the

language in our prior cases that purports to foreclose even de

minimis extensions beyond the lawful conclusion of a traffic stop.

¶43 As the majority explains, Arizona v. Johnson, 555 U.S. 323,

333 (2009), elucidates the constitution’s reach in cases involving “[a]n

officer’s inquiries into matters unrelated to the justification for [a]

traffic stop.” See supra ¶¶ 29–30. It clarifies that such inquiries

implicate Fourth Amendment concerns only to the extent they

extend the duration of the stop. Johnson, 555 U.S. at 333. Thus,

collateral inquiries “do not convert the encounter into something

other than a lawful seizure, so long as those inquiries do not

measurably extend the duration of the stop.” Id. 

¶44 The court’s opinion today appropriately clarifies the

standard for determining whether an inquiry “measurably

extend[s]” a traffic stop. Reasoning from the Fourth Amendment’s

touchstone of reasonableness and citing case law in this and other

jurisdictions, the majority rightly concludes that mere de minimis

extensions survive constitutional scrutiny despite a lack of

reasonable suspicion for the inquiry leading to the extension. Supra

¶ 29. That analysis, however, is logically incompatible with the

court’s denial of de minimis breathing room at the back end of a

traffic stop. If the reasonableness criterion of the Fourth Amendment

leaves flexibility for de minimis extensions during the course of a
Cite as: 2013 UT 3

JUSTICE LEE, concurring

17

traffic stop, it must likewise preserve such room as the stop comes

to a close. 

¶45 That was the essence of our recent holding in State v. Morris,

2011 UT 40, ¶ 25, 259 P.3d 116. There the basis for the traffic

stop—an apparently missing license plate—disappeared when the

officer noticed a temporary registration tag as he was pulling the

vehicle over. Id.¶ 4. Yet although at that point the “lawful purpose

of the stop ha[d] concluded,” supra ¶ 35, we nonetheless upheld the

officer’s further extension of the stop to allow him to provide a brief

explanation of why he had initiated the stop. Morris, 2011 UT 40,

¶¶ 25–26. By implication, our Morris decision embraced a notion of

de minimis breathing space at the back end of a traffic stop.

Otherwise, we could not have upheld the officer’s further detention

of the vehicle, which resulted from an inquiry that took place after

the “lawful purpose of the stop ha[d] concluded.” Supra ¶ 35. 

¶46 Morris is irreconcilable with the majority’s dictum

foreclosing “any further questioning, investigation, or detention”

after the lawful purpose of the stop has ended. Supra ¶ 35 (emphasis

added). Clearly there was further detention in Morris after the stop’s

lawful purpose ended. And yet we upheld it against a Fourth

Amendment challenge—in a manner necessarily (if implicitly)

leaving room for de minimis extension of a traffic stop beyond its

lawful termination.

¶47 Presumably the court today is not overruling Morris.

Perhaps it finds that case distinguishable on its facts—on the

ground, for example, that the detained driver in Morris may have

been uncertain whether the stop had in fact terminated or whether

he was indeed free to leave. But that will often be true in cases of this

nature, and that and other uncertainties are good reasons not to

establish a hard-and-fast rule against any further detention after the

stop has ended.

¶48 Consider a hypothetical variation on the facts of this case,

in which Deputy Luke hands the driver his license and registration

and a speeding ticket while stating, “here you go, drive safely . . . but

before you do I’m wondering whether there’s anything else I should

know about.” The length of the extension of the stop in the

hypothetical is equal to the one in the actual case, so both extensions

should withstand constitutional scrutiny if the question is simply the

reasonableness of the delay. But under the majority’s dictum, the

hypothetical extension is constitutionally problematic, as it comes

after the lawful purpose of the stop had ended. That is troubling. I
STATE v. SIMONS

JUSTICE LEE, concurring

2 See Hansen, 2002 UT 125, ¶ 37 (“While a traffic stop may begin

as an investigatory detention, it is possible for it to de-escalate to a

consensual encounter. Since a consensual encounter is not a seizure,

questioning during such an encounter is lawful, regardless of scope,

as long as the person remains a willing participant.” (citations

omitted)); see also State v. Alverez, 2006 UT 61, ¶ 10, 147 P.3d 425

(noting that consensual encounters are not seizures under the Fourth

Amendment). 

3 See supra ¶ 42 n.1.

18

see no difference between the hypothetical and the actual case, or at

least no difference of any constitutional significance.

¶49 In the hypothetical scenario, the vehicle’s occupants could

have one of two possible reactions to the officer’s statements. One

reaction would be to conclude that the traffic stop is not really at an

end, given the immediacy of the follow-up question about “anything

else.” In that event the case would look a lot like the scenario in

Morris, in which an extension would be justified because it is de

minimis in nature and not otherwise unreasonable. If, on the other

hand, the vehicle occupants reacted by genuinely perceiving the

vehicle stop to be at an end (and the further inquiry to be gratuitous

small talk), then they would necessarily conclude that they were free

to leave. And in that event any further inquiry would not be a

detention, but a voluntary interaction.2

 Either way, there is nothing

constitutionally problematic about a de minimis extension that

comes after an arguable termination of the stop—unless the extension

is more than de minimis and thus unreasonable, which is the

dispositive question under the Fourth Amendment. 

¶50 Today’s hard-and-fast rule against any extensions beyond

the conclusion of the lawful basis of the stop misses the

constitutional mark. Instead of focusing on the reasonableness of any

detention, this dictum will require the courts to referee a fuzzy line

going forward—a line designating the formal conclusion of a stop

for Fourth Amendment purposes. I would avoid drawing such a line

because it is unworkable and, more importantly, because it is not the

line prescribed by the constitution. 

¶51 I would likewise repudiate the language in our recent

precedents articulating this rule.3

 Doing so would not require a

disavowal of the holdings of these cases, however. In Baker and

Gettling, after all, we ultimately upheld the traffic stops at issue

under the good-faith exception to the exclusionary rule, see State v.
Cite as: 2013 UT 3

JUSTICE LEE, concurring

19

Baker, 2010 UT 18, ¶¶ 35–40, 229 P.3d 650; State v. Gettling, 2010 UT

17, ¶ 8, 229 P.3d 647, so our statements requiring a bright-line end of

the detention at the conclusion of a stop were unnecessary. And

even State v. Hansen, 2002 UT 125, 63 P.3d 650, is consistent with the

de minimis standard articulated by the court today. There the

extension of the traffic stop not only came after the officer returned

the motorist’s license and registration; it was also quite extensive

(and hardly de minimis), in that it involved not just a single question

about alcohol, drugs, or weapons (which was answered in the

negative) but further pestering culminating in a request for a search

of the vehicle for these items. Id. ¶¶ 12–15. Such questioning and

ensuing search would hardly be de minimis, so our conclusion that

the detention was extended unreasonably was correct—and

consistent with the de minimis standard that flows from the

reasonableness criterion of the Fourth Amendment.

¶52 We should recast the holdings of our prior cases in these

terms and disavow their dicta as overtaken by subsequent authority.

I disagree with the portion of the court’s decision reinforcing the

notion of a hard prohibition on any further detention after the end

of a traffic stop, and would affirm in this case without cementing

that problematic position in our case law.