State v. Simons

                This opinion is subject to revision before final
                     publication in the Pacific Reporter

                                

                                   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.
    ¶2 Simons argues the court of appeals erred in affirming the
district court because Deputy Luke improperly extended the length
                           STATE v. SIMONS
                        Opinion of the Court

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,

, 

 (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
observed that Sorensen’s “movements [were] . . . very agitated. He
moved constantly touching his mirror several times, moving his


   1
    We recite the facts based on testimony offered at a preliminary
hearing conducted in the Fourth District Court before Judge James
R. Taylor.

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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
suspended prison term of five years with thirty-six months
probation.


   2
     In doing so, Mr. Simons reserved his right to appeal the denial
of his motion to suppress. See State v. Sery, 

 (Utah
Ct. App. 1988).

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    ¶9 Simons timely appealed and the court of appeals affirmed
the district court’s denial of his motion to suppress. State v. Simons,

, 

. 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, 

, 

. We review “the decision of the court of appeals
for correctness, giving no deference to its conclusions of law.” State
v. Baker, 

, 

. “[B]ecause there must be
state-wide standards that guide law enforcement and prosecutorial
officials,” State v. Hansen, 

, 

 (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, 

.
     ¶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, 

 (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.”

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                             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, 

, 

.
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.” U.S. CONST. amend. IV.
“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,

, 

 (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, 

 (Utah 1994) (“[A] police officer is constitutionally justified in
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]


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                           STATE v. SIMONS
                        Opinion of the Court

driver’s license and vehicle registration, conduct a computer check,
and issue a citation.” State v. Hansen, 

, 

;
see also Arizona v. Johnson, 

 (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, 

 (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, 

, 

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

 But “officers must diligently pursue a means of investigation that
is likely to confirm or dispel their suspicions quickly.” State v.
Morris, 

, 

 (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, 

, 

 (“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
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

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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, 

, 

(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.” 

(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,

 (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.” 

.
    ¶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
in light of common sense and ordinary human experience.”
Markland, 

 (internal quotation marks omitted). In so
doing, we “accord deference to an officer’s ability to distinguish



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                            STATE v. SIMONS
                         Opinion of the Court

between innocent and suspicious actions.” 

 (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. 

 (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.”

. The Court answered in the affirmative the question of
whether “the officer had probable cause to believe that [the
defendant] committed that crime.” 

 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.”

.
    ¶25 The Court explicitly distinguished its analysis in Pringle
with that in Ybarra v. Illinois. 

 (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. Ybarra, 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.” 

. In contrast, the
Pringle Court highlighted the fact that “Pringle and his two
companions were in a relatively small automobile, not a public
tavern.” Pringle, 

. 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

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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, 

, 

 (“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. 

, 

.
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
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

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                           STATE v. SIMONS
                        Opinion of the Court

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. 

 (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. 

.
    ¶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.” 

 (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.” 

 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, 

 (1996) (internal quotation marks omitted) (citation
omitted); see also State v. Baker, 

, 

 (“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
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


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                         Opinion of the Court

unreasonable seizure under the Fourth Amendment.” United States
v. Everett, 

 (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 . . . .” 

 (footnote omitted); see also United States
v. Dixie, 

, 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. 

, 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.” 

. 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 . . . .” 

 (emphasis
omitted). See also United States v. Stepp, 

 (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, 

 (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
reasonable suspicion, to be unconstitutional. 

 (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

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                         Opinion of the Court

infraction investigation.” 

 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. 

 Citing United States v. Sharpe,

 (1985), the Digiovanni Court made clear that an
officer “must diligently pursue the investigation of the justification
for the [original] stop.” 

. 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, 

 (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, 

. 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


   3
     This requirement accords with our holdings in State v. Hansen,

, 

; State v. Gettling, 

, 

;
State v. Baker, 

, 

; and State v. Morris, 

, 

. In Hansen, the officer’s unrelated question was
unconstitutional because “the purpose for the initial traffic stop was
concluded” and the officer did not have reasonable suspicion of
further criminal activity. 

. The dog sniffs in
                                                        (continued...)

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    ¶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, 

 (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, 

. 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
   ¶37 To reinitiate a concluded stop, an officer is required to
demonstrate reasonable suspicion, just as when the officer initiated

   3
     (...continued)
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, 

; Baker, 

. 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. 

. 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. 

 (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.” 

. 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.” 

 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.” 

 The Court’s holding in Johnson therefore allows a de
minimus extension during a stop, even as such a stop is winding
down, but it does not preclude the necessity of reasonable suspicion
to initiate a stop or reinitiate a concluded stop.

                                 13
                          STATE v. SIMONS
                       Opinion of the Court

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.
                          CONCLUSION
   ¶39 The court of appeals correctly affirmed the trial 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


   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, 

 (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,” 

. 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.” 

 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
                          Cite as: 

                       JUSTICE LEE, concurring

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, 

 (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


   1
     See State v. Hansen, 

, 

 (“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
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, 

, ¶¶ 5–7, 

 (declining to “adopt any de minimis
exception to a passenger’s Fourth Amendment rights in order to
                                                         (continued...)

                                  15
                          STATE v. SIMONS
                       JUSTICE LEE, concurring

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, 

 (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, 

. 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.” 

    ¶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
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,

, 

. There the basis for the traffic
stop—an apparently missing license plate—disappeared when the


   1
     (...continued)
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, 

, 

(concluding that “any detention of an individual after the purpose
for the initial detention has concluded violates the Fourth Amendment” (emphasis added)).

                                  16
                          Cite as: 

                       JUSTICE LEE, concurring

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, 

,
¶¶ 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
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


                                   17
                            STATE v. SIMONS
                         JUSTICE LEE, concurring

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.
Baker, 

, ¶¶ 35–40, 

; State v. Gettling, 

, 

, so our statements requiring a bright-line end of
the detention at the conclusion of a stop were unnecessary. And
even State v. Hansen, 

, 

, 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

   2
     See Hansen, 

 (“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, 

, 

(noting that consensual encounters are not seizures under the Fourth
Amendment).
   3
       See supra ¶ 42 n.1.

                                   18
                         Cite as: 

                       JUSTICE LEE, concurring

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.




                                  19