State v. McLeod

2018 UT App 51
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
TY WILLIAM M CLEOD,
Appellant.
Opinion
No. 20151060-CA
Filed March 29, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 141902943
Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. O RME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 	Ty William McLeod appeals the district court’s denial of
his 	motion 	to 	suppress 	drug 	and 	paraphernalia 	possession
evidence discovered during a traffic stop. The district court
determined that the officers did not have reasonable suspicion to
extend the detention. However, it denied the motion to suppress
because the length of McLeod’s detention did not exceed the
amount of time reasonably necessary to complete an ordinary
traffic stop. On appeal, the State concedes that the “denial of the
suppression motion appears to have been based on an incorrect
understanding 	of 	the 	law” 	but 	urges 	us 	to 	affirm 	on 	the
alternative ground that the officers had reasonable suspicion to
prolong the stop. We agree with the district court that the officer
lacked reasonable suspicion. As a result, we decline to affirm on

State v. McLeod
20151060-CA 	2 	2018 UT App 51
the alternative ground, and we reverse the district court’s denial
of the motion to suppress.
BACKGROUND1
¶2 	A police officer was patrolling 200 South 500 West in Salt
Lake City when he noticed a vehicle parked in the median of the
street. The officer watched as McLeod exited the vehicle and
jaywalked across the street. McLeod approached three people,
who pointed out that the officer was nearby. McLeod then
walked around the corner, out of the officer’s sight. The officer
waited for McLeod to return to his vehicle.
¶3 	When McLeod returned, he got into his vehicle and
pulled away from the median without signaling.2 At that point,
the 	officer 	initiated 	a 	traffic 	stop. 	The 	officer 	approached
McLeod’s vehicle and requested his driver license, proof of
insurance, and vehicle registration. When McLeod was unable to
produce those documents, the officer asked for his name and
other identifying information.
¶4 	The officer returned to his patrol car to complete a records
check while a backup officer, who had arrived on the scene,
watched McLeod. During the records check, McLeod continued
1. “In reviewing the [district] court’s ruling on a motion to
suppress evidence, we recite the relevant facts in the light most
favorable to the [district] court’s findings.” State v. Navarro, 2017
UT App 102, ¶ 2 n.1, 400 P.3d 1120 (citation and internal
quotation marks omitted).
2. “A person may not turn a vehicle or move right or left on a
roadway or change lanes until . . . an appropriate signal has been
given . . . .” Utah Code Ann. § 41-6a-804(1)(a) (LexisNexis Supp.
2017).

State v. McLeod
20151060-CA 	3 	2018 UT App 51
“moving around quite a bit in his front seat.” The backup officer
told McLeod to stop moving around, and he complied.
¶5 	The records check confirmed that McLeod had a valid
driver 	license 	and 	that 	he 	did 	not 	have 	any 	outstanding
warrants. The officer later testified that nothing in McLeod’s
record “raised concerns of violence” or suggested that the officer
“should detain him further on . . . any other matters.”
¶6 	The officer also acknowledged that, “at that point, it was
either write the citation or give him a warning [for the traffic
violation].” But the officer did not write McLeod a citation, give
him a warning for any offense, or tell him that he was free to
leave. Instead, the officer returned to McLeod’s vehicle and
asked whether “he had anything illegal 	in the car.” When
McLeod said “No,” the officer asked if he could search the
vehicle, and McLeod responded, “Sure.”
¶7 	As he prepared to step out of the car, McLeod reached
underneath a pile of clothes on the passenger seat. Concerned
that McLeod was reaching for a weapon, the officers ordered
McLeod out of the vehicle and frisked him, which confirmed
that McLeod did not have any weapons on his person.
¶8 	The officer then asked McLeod a second time whether
there was anything illegal in the vehicle. This time, McLeod
admitted 	that 	he 	had 	a 	syringe 	in 	a 	shoe 	inside 	the 	car.
Approximately ten minutes had elapsed from the beginning of
the traffic stop to the time that McLeod indicated that he had a
syringe.
¶9 	During the ensuing search of McLeod’s vehicle, the officer
discovered a heroin-filled syringe and a black twist3 in the shoe
3. According to the officer, certain drugs are typically packaged
in a twist, which is a pinky-sized bag that has been twisted and
(continued…)

State v. McLeod
20151060-CA 	4 	2018 UT App 51
and two more black twists in the center console. The officer
believed that the twists contained heroin because, based on his
training 	and 	experience, 	that 	was 	“the 	way 	[heroin] 	was
packaged.”
¶10 	McLeod was arrested and subsequently charged with
possession or use of a controlled substance, a third degree
felony, 	and 	possession 	of 	drug 	paraphernalia, 	a 	class 	B
misdemeanor. 	Before 	trial, 	McLeod 	moved 	to 	suppress 	the
evidence, contending that the officer had violated his rights
under the Fourth Amendment to the United States Constitution.
Specifically, 	McLeod 	argued 	that 	because 	“there 	[was] 	no
reasonable basis to extend the stop[,] . . . [the officer’s] request to
search 	the 	vehicle 	constituted 	an 	illegal 	detention 	and 	the
evidence should be suppressed.”
¶11 	In denying the motion to suppress, the district court
rejected 	the 	State’s 	argument 	that 	McLeod’s 	“furtive
movements” 	and 	“suspicious acts” 	prior to the 	traffic stop
constituted 	reasonable 	suspicion 	to 	extend 	the 	detention.
Instead, 	the 	court 	concluded 	that 	the 	officer 	“did 	not
unconstitutionally extend the scope of the traffic stop,” because
his 	“activities 	that 	were 	not 	directed 	toward 	the 	traffic
investigation took substantially less time than would have been
required 	to 	complete 	the 	traffic 	investigation 	and 	issue 	a
citation.”
¶12 	McLeod 	pled 	guilty 	to 	possession 	of 	a 	controlled
substance, a class A misdemeanor, preserving his right to appeal
the district court’s denial of his motion to suppress. See Utah R.
App. P. 11(j). McLeod timely appeals.
(…continued)
then melted on the end to prevent breaking. The color of the
twist varies based on the type of drug it contains.

State v. McLeod
20151060-CA 	5 	2018 UT App 51
ISSUE AND STANDARD OF REVIEW
¶13 	McLeod contends that the district court erred in denying
his motion to suppress because the officer extended the scope
and duration of the traffic stop without reasonable suspicion to
investigate unrelated criminal activity.
¶14 	“We review a [district] court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation
as a mixed question of law and fact.” State v. Simmons, 2017 UT
App 224, ¶ 12, 409 P.3d 129 (citation and internal quotation
marks omitted). “While the court’s factual findings are reviewed
for clear error, its legal conclusions are reviewed for correctness,
including its application of law to the facts of the case.” Id.
(citation and internal quotation marks omitted).
ANALYSIS
¶15 	The Fourth Amendment to the United States Constitution
does 	not 	forbid 	all 	searches 	and 	seizures, 	“but 	[only]
unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9
(1968) 	(citation 	and 	internal 	quotation 	marks 	omitted). 	The
proscription against unreasonable searches and seizures extends
to traffic stops “even though the purpose of the stop is limited
and the resulting detention quite brief.” Delaware v. Prouse, 440
U.S. 648, 653 (1979).
¶16 	“To decide whether police conduct during a traffic stop is
reasonable, we consider whether the stop was (1) ‘justified at its
inception’ and (2) carried out in a manner ‘reasonably related in
scope to the circumstances [that] justified the interference in the
first place.’” State v. Martinez, 2017 UT 43, ¶ 12 (alteration in
original) (quoting United States v. Sharpe, 	470 U.S. 675, 682
(1985)).

State v. McLeod
20151060-CA 	6 	2018 UT App 51
¶17 	Here, it is undisputed that the stop was justified at its
inception because the officer had probable cause to stop McLeod
for failing to signal before turning. But a traffic stop that is
lawful at its inception “can become unlawful if it is prolonged
beyond the time reasonably required to complete [the stop’s]
mission,” including the time necessary “to address the traffic
violation that warranted the stop and attend to related safety
concerns.” Rodriguez v. United States, 135 S. Ct. 1609, 1614–15
(2015) (citations and 	internal quotation 	marks omitted). “If,
during the scope of the traffic stop, the officer forms new
reasonable articulable suspicion of criminal activity, the officer
may also expediently investigate his new suspicion.” State v.
Baker, 2010 UT 18, ¶ 13, 229 P.3d 650. But “without additional
reasonable suspicion, the officer must allow the seized person to
depart once the purpose of the stop has concluded.” Id.
¶18 	On appeal, the State concedes that the officer prolonged
the detention beyond the time necessary to complete the purpose
of the traffic stop in order to investigate McLeod’s involvement
in unrelated drug activity. In denying the motion to suppress,
the 	district 	court 	determined 	that 	the 	officer 	did 	not 	have
reasonable suspicion of other criminal activity, but it ruled that
reasonable suspicion was not required because the officer did
not detain McLeod longer than the time reasonably necessary to
complete an ordinary traffic stop. The State concedes that it
cannot argue for affirmance on this basis given the United States
Supreme Court’s holding in Rodriguez.
¶19 	In 	Rodriguez, 	the 	Supreme 	Court 	determined 	that,
although officers may ask questions unrelated to the purpose of
the traffic stop without offending the Fourth Amendment “so
long as [unrelated] inquiries do not measurably extend the
duration of the stop,” they cannot earn “bonus time to pursue an
unrelated criminal investigation” by expeditiously completing
all traffic-related tasks. 135 S. Ct. at 1615–16. “If an officer can
complete traffic-based inquiries expeditiously, then that is the

State v. McLeod
20151060-CA 	7 	2018 UT App 51
amount of time reasonably required to complete [the stop’s]
mission.” 	Id. 	(alteration 	in 	original) 	(citation 	and 	internal
quotation marks omitted). A traffic stop prolonged beyond that
point is unlawful unless it is supported by reasonable suspicion
of other criminal activity. See Baker, 2010 UT 18, ¶ 13.
¶20 	The State acknowledges that the officer had completed
the purpose of the traffic stop when he returned to McLeod’s
vehicle following the records check. Accordingly, reasonable
suspicion was required to detain McLeod further and inquire as
to whether he had anything illegal in his car.
¶21 	The State argues that the officer had reasonable suspicion
to prolong the traffic stop and urges us to affirm the denial of the
motion to suppress on that alternative basis. Even though the
district 	court 	determined 	that 	the 	officer 	lacked 	reasonable
suspicion, 	we 	may 	affirm 	“on 	any 	legal 	ground 	or 	theory
apparent on the record.” Bailey v. Bayles, 2002 UT 58, ¶ 10, 52
P.3d 	1158 	(citation 	and 	internal 	quotation 	marks 	omitted).
However, we are “limited to the findings of fact made by the
trial court and may not find new facts or reweigh the evidence in
light of the new legal theory or alternate ground.” Id. ¶ 20.
¶22 	The State argues that McLeod’s “prior suspicious conduct
in a high-drug-crime area, combined with his conduct during the
traffic stop, constituted reasonable suspicion.” To support its
argument, 	the 	State 	points 	to 	the 	following 	circumstances:
(1) McLeod’s “conduct approaching three separate people while
there” and his “prompt departure upon learning that police
were nearby,” (2) McLeod’s “furtive movements during the
traffic stop,” and (3) McLeod’s “presence in an area known to be
high in drug-dealing.” As noted infra ¶ 11, the district court
concluded 	that 	these 	facts 	did 	not 	give 	rise 	to 	reasonable
suspicion to investigate any criminal activity beyond the traffic
violation. Based on the court’s factual findings, we agree that the
totality of the circumstances did not provide the officer with a

State v. McLeod
20151060-CA 	8 	2018 UT App 51
particularized 	and 	objective 	basis 	to 	believe 	McLeod 	was
involved in criminal activity.
¶23 	Reasonable suspicion is an elusive concept that is “not
readily, or even usefully, reduced to a neat set of legal rules.”
Ornelas v. United States, 517 U.S. 690, 695–96 (1996) (citation and
internal 	quotation 	marks 	omitted). 	To 	determine 	whether
reasonable suspicion exists, we must examine the “totality of the
circumstances” to establish “whether the detaining officer [had]
a 	particularized 	and 	objective 	basis 	for 	suspecting 	legal
wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273 (2002)
(citation and internal quotation marks omitted); see also State v.
Markland, 2005 UT 26, ¶ 11, 112 P.3d 507 (stating that “[c]ourts
must view the articulable facts in their totality and avoid the
temptation to divide the facts and evaluate them in isolation”
(alteration in original) (citation and internal quotation marks
omitted)). Officers may “draw on their own experience and
specialized training” to make inferences that “might well elude
an untrained person.” Arvizu, 534 U.S. at 273 (citation and
internal quotation marks omitted). While reasonable suspicion
requires officers to articulate more than a “hunch,” they are not
required to “rule out the possibility of innocent conduct.” State v.
Richards, 2009 UT App 397, ¶ 9, 224 P.3d 733 (citation and
internal quotation marks omitted).
¶24 	First, the State argues that McLeod acted suspiciously by
approaching three people on a sidewalk 	and then walking
around the corner when at least one person pointed to the
officer. “[N]ervous, evasive behavior is a pertinent factor in
determining reasonable suspicion.” Illinois v. Wardlow, 528 U.S.
119, 124 (2000). But the district court made no factual finding
characterizing McLeod’s conduct as evasive and the limited
evidence presented does not compel such an inference. There is
no suggestion that McLeod engaged in headlong flight, “the
consummate 	act 	of 	evasion,” 	id., 	or 	even 	that 	he 	abruptly
changed course in response to the presence of the officer. Based

State v. McLeod
20151060-CA 	9 	2018 UT App 51
on the testimony, McLeod’s conduct in walking around the
corner could just as easily be characterized as going about one’s
business. See id. at 125. Without more, we cannot give this factor
any significant weight in the reasonable suspicion calculus.
¶25 	Second, 	the 	State 	relies 	on 	what 	it 	characterizes 	as
McLeod’s “furtive gestures” during the traffic stop. Furtive
gestures may be a relevant factor in the reasonable suspicion
analysis if they are “coupled with prior reliable information
indicating possible criminal conduct.” State v. Schlosser, 774 P.2d
1132, 1138 n.5 (Utah 1989). But the mere fact that McLeod was
“moving all around” while the officer conducted a records check
does not weigh heavily in favor of reasonable suspicion. While
the 	district 	court 	referred 	to 	the 	State’s 	characterization 	of
McLeod’s movements as “furtive,” it did not make any factual
finding that McLeod’s actions were suspicious. See Angel Inv’rs,
LLC v. Garrity, 2009 UT 40, ¶ 39, 216 P.3d 944 (“Stating the
[party’s] assertion without ruling on the validity of the assertion
does not constitute a finding of fact.”). In his testimony, the
officer acknowledged it is not unusual for drivers who could not
produce a license and registration to continue looking for those
items. The fact that the district court specifically considered the
alleged furtive movements and still concluded that there was no
reasonable suspicion to prolong the stop persuades us that
McLeod’s behavior was not inherently suspicious or strongly
indicative of criminal behavior.
¶26 	Finally, we recognize that a location’s reputation for being
a “high crime area” is a relevant factor for courts to consider as
part of the reasonable suspicion analysis. See Wardlow, 528 U.S. at
124. While the district court did not make specific findings of fact
regarding the character of the neighborhood in this case,4 the
4. At the hearing on the motion to suppress, the district court
received evidence on both this case and a related case we also
(continued…)

State v. McLeod
20151060-CA 	10 	2018 UT App 51
officer testified that 200 South 500 West is a high-crime area
known 	for 	drug 	trafficking 	and 	aggravated 	crimes. 	This
undisputed testimony weighs in favor of the State’s argument,
but “[a]n individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable,
particularized suspicion that the person is committing a crime.”
Id.
¶27 	Taken together, the totality of the circumstances were
insufficient for the officer to form a particularized and objective
basis to suspect that McLeod was involved in criminal activity
beyond the observed traffic violation. Because the purpose of the
stop 	was 	completed, 	McLeod’s 	further 	detention 	without
reasonable suspicion of additional criminal activity violated the
Fourth Amendment thereby tainting McLeod’s consent to search
the 	vehicle. 	Accordingly, 	we 	decline 	to 	affirm 	McLeod’s
conviction on the State’s proposed alternative ground.
CONCLUSION
¶28 	We 	accept 	the 	State’s 	concessions 	that 	the 	officer
prolonged McLeod’s detention beyond the time necessary to
complete the traffic stop and that reasonable suspicion was
required to further detain him and ask questions unrelated to the
purpose of the stop. While we disagree with the district court
that the traffic stop was not unlawfully extended, we do agree
with 	the 	district 	court 	that 	the 	officer 	lacked 	reasonable
suspicion to believe McLeod was engaged in other criminal
activity. 	As 	a 	result, 	we 	conclude 	that 	McLeod’s 	Fourth
(…continued)
decide today, State v. McLeod, 2018 UT App 52. In that case, the
district court made a finding that this area—the so-called Rio
Grande district on Salt Lake City’s west side—is a high-crime
area.

State v. McLeod
20151060-CA 	11 	2018 UT App 51
Amendment rights were violated and that he is entitled to
suppression of the evidence discovered during the traffic stop.
¶29 	We therefore reverse and remand for further proceedings
consistent with this opinion.