State v. Baker

2010 UT 18
229 P.3d 650
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20080351
Plaintiff and Petitioner,
v.
F I L E D
Luke Zachary Baker,
Defendant and Respondent. 	March 12, 2010
---
Fourth District, Provo
The Honorable Lynn W. Davis
No. 041403985
Attorneys: 	Mark Shurtleff, Att’y Gen., Marian Decker, Asst.
Att’y Gen., Salt Lake City, for plaintiff
Aaron P. Dodd, Provo, for defendant
---
On Certiorari to the Utah Court of Appeals
---
PARRISH, Justice:
INTRODUCTION
¶1 	Defendant Luke Zachary Baker entered a conditional
guilty plea to possession of methamphetamine and drug
paraphernalia in a drug free zone in violation of Utah Code
section 58-37-8. 	Mr. Baker was the passenger in a vehicle that
was stopped for a broken taillight. 	He claims that the police
exceeded the permissible length and scope of the stop when they
conducted a dog sniff on the car and then ordered him out of the
car and searched him. 	He moved to suppress the drugs and drug
paraphernalia obtained during the search of his person. 	The
district court denied his motion to suppress, but the court of
appeals reversed.

No. 20080351 	2
¶2 	We granted certiorari to review the court of appeals’
decision on two issues: first, whether the court of appeals erred
in its construction or application of the Fourth Amendment to the
United States Constitution as to the permissible length and scope
of detention of the passengers in a vehicle that police have
stopped; and second, whether the court of appeals erred in its
construction or application of the Fourth Amendment relating to
the circumstances under which searches for weapons may be
conducted. 	Although we conclude that the officers improperly
extended the duration of the stop by having a drug dog sniff the
perimeter of the vehicle, we hold that the evidence should not be
excluded on this basis because the officers relied in good-faith
on settled judicial precedent when they conducted the dog sniff.
However, we also conclude that the officers did not have an
objectively reasonable belief that Mr. Baker was armed and
dangerous at the time they frisked him and discovered the drugs
and drug paraphernalia that were the subject of the motion to
suppress. 	We therefore affirm the court of appeals.
BACKGROUND
¶3 	Sometime after midnight on January 30, 2005, Officer
Raymond Robertson of the Pleasant Grove Police Department stopped
the car in which Mr. Baker was a backseat passenger because it
had no light illuminating the back license plate. 	Upon a records
search of the driver’s identification, Officer Robertson
discovered that her driver license had been suspended for a drug
violation. 	He then called for a K-9 unit and arrested the driver
for driving on a suspended license.
¶4 	While Officer Robertson was placing the driver under
arrest, two other officers, Officer Mike Bartell and Officer
Chris Rockwood, arrived as backup. 	Officer Bartell made contact
with the passengers in the vehicle. 	The middle backseat
passenger, not Mr. Baker, immediately advised the officer that he
had a knife and handed it over to Officer Bartell for the
duration of the stop. 	Officer Bartell asked if there were any
other knives or weapons in the vehicle. 	The four passengers
proceeded to give him twelve other knives, including pocket
knives and small throwing knives. 	Officer Bartell confiscated
the knives, left the passengers in the car, and waited for the K-
9 unit to arrive. 	Officer Bartell considered the passengers to
be nonthreatening and cooperative.
¶5 	Officer Robertson estimates that twelve minutes elapsed
between the time when he initially placed the driver under arrest
and the arrival of the K-9 unit. 	He estimates that he had
finished searching the driver incident to arrest and had placed

3 	No. 20080351
her in the back of the patrol car about a minute before the K-9
unit arrived. 	When Officer Lopez, the K-9 officer, arrived and
walked his dog around the car, the dog indicated the presence of
drugs on the rear driver’s side door handle and on the trunk.
Officer Robertson and the two assisting officers then ordered the
passengers out of the car and frisked them. 	When Officer
Rockwood frisked Mr. Baker, he discovered a marijuana pipe.
During booking, officers also discovered a small bag of
methamphetamine in his possession. 	At the preliminary hearing,
Officer Robertson testified that he did not fear for his safety
at the time he authorized Officer Rockwood to frisk the
passengers.
¶6 	As part of his defense, Mr. Baker moved to suppress the
marijuana pipe and the bag of methamphetamine that the officers
found in his possession. 	Officers Bartell, Rockwood, and
Robertson all testified at the motion hearing. 	Officer Bartell
testified that the passengers cooperated with him when they
offered him their knives and that they did nothing to make him
fear for his safety. 	Although he testified that all the
passengers gave him knives, and that some were pocket knives,
while others were larger, he did not identify what type of knife
or knives Mr. Baker gave him. 	Officer Rockwood testified that he
frisked Mr. Baker because the K-9 unit indicated on the vehicle
and “because on any traffic stop a police officer is always aware
of officer safety.” 	But Officer Robertson agreed that “in this
particular case the reason that [he] decided to search Mr. Baker
was not because [he] was afraid for [his] safety.” 	After the
district court denied his motion to suppress the evidence, Mr.
Baker entered a conditional guilty plea. 	The court of appeals
reversed the district court, and we granted certiorari. 	We have
jurisdiction pursuant to Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶7 	On certiorari, this court reviews the decision of the
court of appeals for correctness, giving no deference to its
conclusions of law. 	Thomas v. Color Country Mgmt., 2004 UT 12,
¶ 9, 84 P.3d 1201. 	When reviewing a district court’s denial of a
motion to suppress, the appellate court disturbs the district
court’s findings of fact only when they are clearly erroneous.
State v. Worwood, 2007 UT 47, ¶ 12, 164 P.3d 397. 	The appellate
court reviews the district court’s legal conclusions for
correctness. 	State v. Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.
“When a case involves the reasonableness of a search and seizure,
we afford little discretion to the district court because there
must be state-wide standards that guide law enforcement and
prosecutorial officials.” 	State v. Warren, 2003 UT 36, ¶ 12, 78

No. 20080351 	4
P.3d 590 (internal quotation marks omitted); see also Brake, 2004
UT 95, ¶ 15, (noting that we afford no deference to the district
court’s 	“application of law to the underlying factual findings
in search and seizure cases”).
ANALYSIS
¶8 	The State argues that the court of appeals erred in its
construction of the Fourth Amendment when it reversed the
district court’s denial of Mr. Baker’s motion to suppress. 	The
court of appeals held that the officers impermissibly extended
the duration of the stop for the twelve minutes between the
arrest of the driver and the arrival of the K-9 unit. 	State v.
Baker, 2008 UT App 115, ¶ 12, 182 P.3d 935. 	It further held that
concern for officer safety did not provide an alternative
justification for the stop because “in this particular situation,
the mere presence of the knives, which had been confiscated at
the time the officers decided to search the passengers,” did not
provide the officers with reasonable suspicion that the
passengers were “armed and presently dangerous.” 	Id. ¶ 17
(internal quotation marks omitted).
¶9 	We first hold that the officers impermissibly detained
Mr. Baker after concluding the purpose of the initial stop, which
was to investigate and then arrest the vehicle driver. 	We then
adopt the good-faith exception to the exclusionary rule and apply
it to the facts of this case, concluding that the officers
reasonably relied on settled judicial precedent when they
impermissibly extended Mr. Baker’s detention by having the drug
dog sniff the vehicle. 	We then consider whether the positive
indication of the drug dog justified the subsequent frisk of Mr.
Baker, either because it gave rise to an objectively reasonable
belief on the part of law enforcement that Mr. Baker was armed
and dangerous or because it gave rise to probable cause that Mr.
Baker possessed illegal drugs under exigent circumstances that
excused the need for a warrant. 	We conclude that the search of
Mr. Baker’s person was not justified based on grounds of officer
safety because the officers lacked reasonable articulable
suspicion that the passengers posed a threat to their safety at
the time they conducted the pat-down search of Mr. Baker. 	And
while the drug dog sniff may have provided the officers with
justification to search Mr. Baker for drugs, either because the
officers had probable cause to arrest him or because exigent
circumstances justified a warrantless search, the State does not
raise this argument on appeal. 	We therefore do not address it.

5 	No. 20080351
I. 	THE OFFICERS IMPROPERLY EXTENDED MR. BAKER’S DETENTION AFTER
THEY FINISHED PROCESSING THE DRIVER’S ARREST
¶10 	The Fourth Amendment to the United States Constitution
protects citizens from “unreasonable searches and seizures” of
“their persons, houses, papers, and effects” by the government.
U.S. Const. amend IV. 	“[T]he ‘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) (quoting Florida v. Jimeno, 500 U.S. 248,
250 (1991)); see also Pennsylvania v. Mimms, 434 U.S. 106, 109
(1977). 	Reasonableness under the Fourth Amendment “depends ‘on a
balance between the public interest and the individual’s right to
personal security free from arbitrary interference by law
officers.’” State v. Warren, 2003 UT 36, ¶ 31, 78 P.3d 590
(quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878
(1975)).
¶11 	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. James, 2000 UT 80, ¶ 10, 13 P.3d 576. 	This
“automobile exception” to the warrant rule arises because
occupants of a vehicle have a lesser expectation of privacy
“[d]ue to the mobile nature of vehicles and their highly
regulated status.” 	Id. 	But “‘one does not lose the protection
of the Fourth Amendment while in an automobile.’” 	State v.
Lopez, 873 P.2d 1127, 1131 (Utah 1994) (quoting State v.
Schlosser, 774 P.2d 1132, 1135 (Utah 1989)).
¶12 	We apply a two-step test to determine whether a traffic
stop is reasonable under the Fourth Amendment. 	State v.
Applegate, 2008 UT 63, ¶ 9, 194 P.3d 925. 	“The first step is to
determine whether ‘the police officer’s action [was] justified at
its inception.’ 	In the second step, we must determine whether
the detention following the stop was ‘reasonably related in scope
to the circumstances that justified the interference in the first
place.’” 	Id. (quoting State v. Lopez, 873 P.2d at 1131-32)
(alteration in original); see also Lopez, 873 P.2d at 1134
(holding that an officer can run a warrant check on a car during
a legal traffic stop if doing so does not “significantly extend[]
the period of detention beyond that reasonably necessary to
request defendant’s license and registration and to issue a
citation”).
¶13 	During a lawful traffic stop, “[t]he temporary seizure
of driver and passengers ordinarily continues, and remains

No. 20080351 	6
reasonable, for the duration of the stop.” 	Arizona v. Johnson,
129 S.Ct. 781, 788 (2009). 	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. 	See id. at 787. 	But without additional
reasonable suspicion, the officer must allow the seized person to
depart once the purpose of the stop has concluded. 	State v.
Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650; see also State v.
Bissegger, 2003 UT App 256, ¶ 20, 76 P.3d 178 (finding that
requesting permission to search a car after the driver
successfully completed a field sobriety test exceeded the scope
of the initial stop).
¶14 	In this case, Officer Robertson was justified at the
inception of the stop to detain the vehicle to investigate the
broken taillight. 	See Lopez, 873 P.2d at 1132 (“[A] police
officer is constitutionally justified in stopping a vehicle if
the stop is incident to a traffic violation committed in the
officers’ presence.” (internal quotation marks omitted).
However, the reasonableness of Mr. Baker’s detention fails under
the second prong. 	We first hold that the purpose of the stop
concluded when the officers finished processing the arrest. 	We
then hold that the drug dog sniff that occurred after the
purposes of the stop had been completed violated Mr. Baker’s
Fourth Amendment rights.
A. 	When a Traffic Stop Culminates in the Arrest of a Vehicle
Driver, the Purpose of the Stop as to the Passengers Ends When
the Officers Have Finished the Activities Incident to the Arrest
¶15 	Mr. Baker argues that the police officers exceeded the
lawful scope and duration of the stop by detaining the passengers
once they had decided to arrest the driver. 	The State contends
that police may lawfully detain passengers until all purposes of
the stop have concluded. 	If the stop results in the arrest of
the driver, they argue that passengers are lawfully detained
until officers have concluded all actions incident to the arrest
of the driver. 	We agree with the State. 	However, we find that
the police had concluded all actions incident to the arrest of
the driver when they detained Mr. Baker to await the arrival of
the K-9 unit.
¶16 	The United States Constitution permits three types of
police stops:
(1) An officer may approach a citizen at any
time and pose questions so long as the
citizen is not detained against his will; (2)

7 	No. 20080351
an officer may seize a person if the officer
has an articulable suspicion that the person
has committed or is about to commit a crime;
however, the detention must be temporary and
last no longer than is necessary to
effectuate the purpose of the stop; (3) an
officer may arrest a suspect if the officer
has probable cause to believe an offense had
been committed or is being committed.
State v. Johnson, 805 P.2d 761, 763 (Utah 1991) (internal
quotation marks omitted). 	Generally, the officer’s level of
suspicion determines the allowable level of intrusion into the
privacy of the stopped individual. 	Under Arizona v. Johnson,
police may constitutionally detain passengers if they have
probable cause or reasonable articulable suspicion of the
driver’s traffic violation or other criminal activity. 	129 S.
Ct. at 784 (holding that when an investigatory stop is lawfully
based on the suspicion of the driver’s vehicular violation,
“[t]he police need not have, in addition, cause to believe any
occupant of the vehicle is involved in criminal activity”).
Thus, even though an officer has no suspicion at all regarding
passenger criminal activity, the officer may still detain
passengers during the course of the lawful traffic stop. 	Police
have this unique authority to detain passengers absent any
suspicion because traffic stops are brief and fraught with
potential danger. 	Id. at 786-87. 	The United States Supreme
Court noted that “[t]he motivation of a passenger to employ
violence to prevent apprehension of . . . a crime . . . is every
bit as great as that of the driver.” 	Id. at 787 (internal
quotation marks omitted).
¶17 	“Once a traffic stop is made, the detention ‘must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop.’” 	Lopez, 873 P.2d at 1132 (quoting Florida
v. Royer, 460 U.S. 491, 500 (1983)). 	“[T]he stop ends when the
police have no further need to control the scene, and inform the
driver and passengers they are free to leave.” 	Arizona v.
Johnson, 129 S. Ct. at 788. 	A court should not micromanage the
details of a traffic stop to ensure that no actions of the police
improperly extend the stop so long as the duration of the stop is
reasonable under the totality of the circumstances. 	State v.
Worwood, 2007 UT 47, ¶ 28, 164 P.3d 397 (noting that we will not
engage in “judicial second-guessing” when evaluating the totality
of the circumstances). 	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

No. 20080351 	8
detention were reasonable. 	Id. 	For instance, officers may run a
warrants check on the driver of the vehicle “so long as it does
not significantly extend the period of detention beyond that
reasonably necessary to request a driver’s license and valid
registration and to issue a citation.” 	Lopez, 873 P.2d at 1133.
However, we have clearly stated that once the lawful purpose of
the stop has concluded, the occupants of the vehicle must be
released from their temporary seizure. 	Hansen, 2002 UT 125,
¶ 31, 63 P.3d 650.
¶18 	In this case, the court of appeals held that the
detention of the passengers became illegal as soon as the arrest
was made. 	State v. Baker, 2008 UT App 115, ¶ 13, 182 P.3d 935.
We disagree. 	Once Officer Robertson discovered that the driver’s
license had been suspended for drugs and decided to arrest her,
he could still detain the passengers while he completed any tasks
incident to the arrest, including paperwork that is customarily
performed at the scene. 	After concluding the arrest, however,
Officer Robertson was required to release the passengers unless
he had reasonable articulable suspicion that they were engaged in
criminal activity.
¶19 	The lawful purpose of a traffic stop that results in
the arrest of the vehicle driver is complete when all procedures
incident to the arrest have taken place. 	At that time, officers
must release any passengers who were detained incident to the
detention of the vehicle. 	We now examine whether the officers
had lawful justification to extend the stop in order to conduct a
search incident to arrest. 	We then assess whether officer safety
concerns justified the continued detention of the passengers.
1. 	Arizona v. Gant Prohibits Routine Searches Incident to the
Arrest of a Vehicle Occupant
¶20 	Prior to the recent United States Supreme Court
decision in Arizona v. Gant, 129 S. Ct. 1710 (2009), issued after
oral arguments had been completed in this case, officers could
conduct a search of the passenger compartment of a vehicle
whenever the driver was arrested. 	Knowles v. Iowa, 525 U.S. 113,
118 (1998); New York v. Belton, 453 U.S. 454, 460 (1981).
Although such a search was premised on protecting the safety of
officers and preserving evidence of the crime, a police officer’s
right to conduct the search was not dependent on whether the
arrestee could actually access the passenger compartment of the
vehicle or whether the failure to search could actually result in
the loss of evidence pertaining to the crime underlying the
arrest. 	Knowles, 525 U.S. at 118. 	Under this framework, upon
the arrest of a vehicle driver, law enforcement officers could

1 Because the driver of the vehicle was arrested for driving
with a suspended license, the State does not argue that there was
any evidence-preservation justification for searching the vehicle
once the arrest was processed.
9 	No. 20080351
lawfully detain vehicle occupants who were not under arrest and
whom they did not suspect were involved in criminal activity
until they had concluded their search of the vehicle incident to
the arrest of the driver.
¶21 	Gant did not overrule the Knowles and Belton line of
cases, but it narrowed the situations in which officers can
conduct a search incident to arrest to times “when the arrestee
is unsecured and within reaching distance of the passenger
compartment at the time of the search” or when the police could
expect to find evidence of the offense for which the arrestee had
been arrested. 1 	Gant, 129 S. Ct. at 1719. 	While the Supreme
Court framed its analysis as clarifying rather than overruling
its holding in Belton, the practical effect of Gant is to
prohibit searches of a vehicle incident to the arrest of a
vehicle occupant absent additional justification. 	Id. at 1722-
23; see also, id. 1724-25 (Scalia, J., concurring). 	Because Gant
represents a significant break from the prior bright-line rule
authorizing a vehicle search incident to arrest under all
circumstances, we asked the parties to provide us with
supplemental briefing as to the effect of the Gant ruling on this
case.
¶22 	The State argues that Gant does not prevent officers
from conducting a search incident to arrest when some of the
vehicle passengers have not been arrested because officers still
have a need to control the scene. 	Mr. Baker contends that Gant
prevents officers from conducting routine searches of an
arrestee’s vehicle and that the presence of passengers does not
affect this holding. 	We agree with Mr. Baker. 	Gant clearly
holds that absent evidence-preservation concerns, “[p]olice may
search a vehicle incident to a recent occupant’s arrest only if
the arrestee is within reaching distance of the passenger
compartment at the time of the search . . . unless police obtain
a warrant or show that another exception to the warrant
requirement applies.” 	Id. at 1723-24 (emphasis added). 	Gant
does not limit this holding to situations where there are no
passengers in the vehicle.
¶23 	Under Gant, the officers in this case were not
permitted to conduct a search incident to the arrest of the
vehicle driver and thus had concluded the purpose of the stop
when they completed processing her arrest. 	Both sides agree that

No. 20080351 	10
the arrested vehicle driver did not have access to the vehicle
after she was handcuffed and placed in the back of the police
cruiser. 	And Officer Robertson’s testimony makes clear that
there was at least a minute delay between completion of the
driver’s arrest and the arrival of the K-9 unit. 	Prior to Gant,
officers could have lawfully detained the passengers after
processing the arrest in order to conduct a search of the
arrestee’s vehicle regardless of actual officer safety or
evidence preservation concerns. 	But under the new interpretation
of Belton announced in Gant, the officers were required to
release the passengers, including Mr. Baker, when they finished
processing the arrest unless they had reasonable articulable
suspicion that the passengers were engaged in or about to be
engaged in criminal activity.
¶24 	The State argues that we should not apply Gant
retroactively because it represents a “clear break” from prior
Supreme Court precedent. 	But Griffith v. Kentucky eliminated the
“clear break” exception to retroactive application of newly
declared constitutional rules for cases pending on direct review.
479 U.S. 314, 328 (1987). 	“[F]ailure to apply a newly declared
constitutional rule to criminal cases pending on direct review
violates basic norms of constitutional adjudication.” 	Id. at
322. 	Because Mr. Baker’s case is here on direct review, we are
required to apply Gant.
2. 	Officer Safety Did Not Justify Continued Detention
¶25 	The State also argues that even if the officers were
not permitted to detain Mr. Baker, at the time the dog sniff
occurred, the officers had reasonable articulable suspicion that
he may be armed and dangerous, which meant the purposes of the
stop were not complete until the officers had frisked Mr. Baker
to ensure officer safety. 	We disagree.
¶26 	During a lawful traffic stop, officers may conduct a
pat-down search of the driver and other vehicle occupants “upon
reasonable suspicion that they may be armed and dangerous.”
Arizona v. Johnson, 129 S Ct. at 787 (internal quotation marks
omitted). 	As with all level two Terry stops, officers must
“‘diligently pursue[] a means of investigation that [is] likely
to confirm or dispel their suspicions quickly.’” 	Worwood, 2007
UT 47, ¶ 28 (quoting United States v. Sharpe, 470 U.S. 675, 686
(1985)).
¶27 	The State urges us to find that the officers’
reasonable belief that Mr. Baker and his fellow passengers were
armed and dangerous justified continued detention to allow the

11 	No. 20080351
officers to conduct a search of the passengers at the time of the
officers’ choosing. 	In support of this argument, they point to
the lateness of the hour and the unusual number of knives
collected from the vehicle occupants. 	In order to determine
whether the officers illegally extended the time of Mr. Baker’s
detention, we need not address whether these factors provided the
officers with reasonable suspicion to conduct a protective pat-
down search of the vehicle occupants because the officers did not
conduct such a search during the lawful duration of the stop.
Rather, the officers detained Mr. Baker without searching him
while they waited for the K-9 unit and conducted a dog sniff of
the exterior of the vehicle prior to conducting any search.
Reasonable belief that an individual is armed and dangerous
justifies a protective pat-down search, not an extended
detention. 	Thus, even if the officers had a reasonable belief
that Mr. Baker was armed and dangerous, they illegally prolonged
his detention by not taking steps to confirm or dispel this
suspicion.
B. 	No De Minimis Exception Allows Officers to Conduct a Dog
Sniff After the Purpose of the Stop Has Concluded
¶28 	The State also argues that because there was only a
short amount of time between the completion of the arrest of the
driver and the arrival of the K-9 unit, we should hold that any
extension of the detention of the passengers was de minimis. 	But
“even a small intrusion beyond the legitimate scope of an
initially lawful search is unlawful under the Fourth Amendment.”
Schlosser, 774 P.2d at 1135.
¶29 	Because a trained narcotics-detection dog alerts police
only to the presence of contraband, and there is no Fourth
Amendment right to possess contraband, the United States Supreme
Court has held that a dog sniff is not a search under the Fourth
Amendment. 	United States v. Place, 462 U.S. 696, 707 (1983).
Based on the premise that a dog sniff is not a search, the
Supreme Court has also found that a drug-trained dog may walk the
perimeter of a lawfully detained vehicle even if police have no
reasonable suspicion that the vehicle occupants are engaged in
drug-related activity so long as the dog sniff search does not
extend the duration of the stop. 	Illinois v. Caballes, 543 U.S.
405, 408 (2005). 	However, “[a] seizure . . . can become unlawful
if it is prolonged beyond the time reasonably required to
complete that mission.” 	Id. at 407.
¶30 	Some jurisdictions have held that because police may
conduct a dog sniff of the exterior of the vehicle during the
course of a lawful traffic stop, they may also detain vehicle

No. 20080351 	12
occupants for a short amount of time after the purpose of the
stop has concluded in order to conduct a dog sniff search. 	See
United States v. $ 404,905.00 in U.S. Currency, 182 F.3d 643,
647-48 (8th Cir. 1999) (allowing a dog sniff after the purpose of
the traffic stop had concluded because a traffic stop is based on
probable cause, and police have more authority than they do
during a typical Terry stop); Hugueley v. Dresden Police Dep’t,
469 F. Supp. 2d 507, 512 (W.D. Tenn. 2007) (finding that the
dividing line between the end of the traffic stop and the dog
sniff was artificial because police could have conducted the dog
sniff prior to the conclusion of the stop); State v. Box, 73 P.3d
623, 629 (Ariz. Ct. App. 2003) (adopting Eighth Circuit rule
because detention of a driver who has violated a traffic law is
akin to an arrest based on probable cause); State v. De La Rosa,
657 N.W.2d 683, 689 (S.D. 2003) (allowing a dog sniff after the
conclusion of a traffic stop because allowing a dog sniff only
after officers informed traffic offenders that they were free to
go would incentivize officers “to falsely tell traffic offenders
they are free to go, only for the purpose of eliciting their
uncoerced agreement to search their automobiles”). 	However, many
jurisdictions have recognized that any extension of a stop after
officers have completed the purpose of their stop violates the
Fourth Amendment. 	United States v. Wood, 106 F.3d 942, 946 (10th
Cir. 1997) (invalidating drug sniff that occurred after the
lawful duration of the stop had concluded because there was no
reasonable suspicion to detain the driver between the conclusion
of the stop and the arrival of the drug dog); People v. Brandon,
140 P.3d 15, 19 (Colo. Ct. App. 2005) (granting a motion to
suppress a dog search that occurred after the purpose of the stop
had concluded even though the dog was in the patrol vehicle
throughout the lawful duration of the stop); State v. Louthan,
744 N.W.2d 454, 461-62 (Neb. 2008) (requiring reasonable
suspicion to extend a stop and explicitly rejecting the Eighth
Circuit de minimis exception for dog sniffs); cf. State v.
Cunningham, 954 A.2d 1290, 1296 (Vt. 2008) (finding no de minimis
extension of the stop permissible under Chapter I, Article 11 of
the Vermont Constitution). 	Some courts in jurisdictions that
have allowed a de minimis extension of a stop in order to conduct
a dog sniff have declined to apply the de minimis rule to
situations where officers had already determined to conduct an
illegal search, but happened to start that search with a dog
sniff which then provided probable cause for a more intrusive
search. 	Urioso v. State, 910 So. 2d 158, 161-62 & n.5 (Ala.
Crim. App. 2005) (declining to find probable cause based on a
drug sniff that occurred after officers obtained involuntary
consent to search); People v. Matthews, 831 N.E.2d 627, 633 (Ill.
Ct. App. 2005) (“[I]f the decision to search does not satisfy

13 	No. 20080351
[F]ourth [A]mendment principles, the decision cannot be saved
merely because [the police officer] used a dog.”).
¶31 	Although this court has never considered whether a stop
can be extended for a brief period of time in order to conduct a
dog sniff, we have made clear that any detention of an individual
after the purpose for the initial detention has concluded
violates the Fourth Amendment. 	Indeed, we have specifically held
that an officer cannot prolong a driver’s detention after
concluding the purpose of the original stop without reasonable
belief that the driver of the car was involved in other illegal
activity. 	Hansen, 2002 UT 125, ¶ 32.
¶32 	In Hansen, the officer pulled the driver over for an
illegal lane change and lack of car insurance. 	Id. ¶¶ 6, 8.
After returning the driver’s license and registration and giving
him a verbal warning to get insurance on his car, the officer
inquired if there were drugs and alcohol in the car and asked the
driver for consent to search, which he gave. 	Id. ¶¶ 12-14. 	We
ruled that the driver’s consent was the fruit of an illegal
detention because the officer continued to question him after the
purpose of the stop had concluded. 	Id. ¶ 32.
¶33 	Similarly, in this case, the officers conducted the dog
sniff after the lawful purposes of the stop--investigating the
broken taillight and arresting the driver for driving with a
suspended license--had concluded. 	We fail to see how detaining
the occupants of the vehicle beyond the lawful purpose of the
stop in order to conduct a dog sniff differs in any meaningful
way from detaining occupants in order to request consent to
search their car. 	Both a dog sniff and a consent search are
legal under the Fourth Amendment only when they are performed
during the course of a lawful stop. 	Further, in this case it
appears that the officers had already determined to conduct a
routine search of the vehicle incident to the arrest of the
driver at the time the dog sniff occurred. 	Such a search is
unconstitutional, and the fact that officers used a dog to
initiate the search cannot cure the search’s infirmities under
the Fourth Amendment.
¶34 	Having determined that the officers unlawfully detained
Mr. Baker after effectuating the arrest of the driver, we now
consider whether we should apply the exclusionary rule to the
evidence found during the dog sniff of the car.

2 	We have not had the opportunity to determine whether
such an exception exists under the Utah Constitution, and we do
not do so today. 	See Sims v. Collection Div. of Utah State Tax
Comm’n, 841 P.2d 6, 11 n.10 (Utah 1992); State v. Thompson, 810
P.2d 415, 419-20 (Utah 1991). Because no state constitutional
arguments were made in this case, we limit our analysis to the
federal good-faith exception. 	See Brigham City v. Stuart, 2005
UT 13, ¶ 12, 122 P.3d 506, rev’d on other grounds, 547 U.S. 398
(2006) (“Where the parties do not raise or adequately brief state
constitutional issues, our holdings become inevitably contingent.
They carry within them an implicit qualification that if properly
invited to intervene, our state's Declaration of Rights might
change the result and impose different demands on police officers
and others who in a very real sense are the everyday guardians of
constitutional guarantees against unreasonable searches and
seizures”).
No. 20080351 	14
II. 	THE OFFICERS REASONABLY RELIED ON STATE V. BELTON AND ITS
PROGENY WHEN THEY IMPROPERLY EXTENDED THE DURATION OF THE STOP
¶35 	The United States Supreme Court has adopted a good-
faith exception to the exclusionary rule in some situations when
application of the rule would not serve a deterrent effect. 2
Herring v. United States, 129 S. Ct. 695, 700 (2009); Illinois v.
Krull, 480 U.S. 340, 352-53 (1987); United States v. Leon, 468
U.S. 897, 905-06 (1984). 	“The fact that a Fourth Amendment
violation occurred . . . does not necessarily mean that the
exclusionary rule applies.” 	Herring, 129 S. Ct. at 700.
Evidence should not be excluded when the application of the
exclusionary rule does not deter improper police conduct or when
the benefits of deterrence do not outweigh the cost. 	Id.
“‘[E]vidence should be suppressed only if it can be said that the
law enforcement officer had knowledge, or may properly be charged
with knowledge, that the search was unconstitutional under the
Fourth Amendment.’” 	Id. at 701 (quoting Krull, 480 U.S. at 348-
49).
¶36 	A good-faith exception to the exclusionary rule exists
when an officer acts in reasonable reliance on a warrant, Leon,
468 U.S. at 920, in reasonable reliance on a statute later
declared unconstitutional, Krull, 480 U.S. at 349, or in
“objectively reasonable reliance on a subsequently recalled
warrant.” 	Herring, 129 S. Ct. at 703. 	On the other hand, no
good-faith exception applies when a police officer reasonably
relies on an illegal subpoena issued by the state attorney
general because application of the rule in such a case has a
deterrent effect on the issuance of illegal subpoenas by the
state’s highest law enforcement official. 	State v. Thompson, 810

15 	No. 20080351
P.2d 415, 420 (Utah 1991) (interpreting the federal good-faith
exception to the exclusionary rule).
¶37 	The officers in the case at hand reasonably relied on
settled judicial precedent when they conducted the search
incident to arrest. 	As recently as 2004, the Supreme Court
reaffirmed that the holding in New York v. Belton, 453 U.S. 454
(1981), meant that “when a police officer has made a lawful
custodial arrest of an occupant of an automobile, the Fourth
Amendment allows the officer to search the passenger compartment
of that vehicle as a contemporaneous incident of arrest.”
Thornton v. United States, 541 U.S. 615, 617 (2004) (allowing a
search of a vehicle incident to the arrest of a “recent occupant”
of that vehicle). 	Our court also has held that “[t]he fact of a
lawful arrest, standing alone, authorizes a search.” State v.
Trane, 2002 UT 97, ¶ 23, 57 P.3d 1052 (internal quotation marks
omitted) (emphasis omitted); see also State v. Kent, 665 P.2d
1317, 1319 (Utah 1983) (upholding search conducted incident to
the arrest of a driver).
¶38 	The United States Court of Appeals for the Ninth and
the Tenth Circuits have come to opposite conclusions about
whether the good-faith exception to the exclusionary rule should
apply to evidence found in searches conducted in violation of
Gant. 	Compare United States v. Gonzalez, 578 F.3d 1130 (9th Cir.
2009), with United States v. McCane, 573 F.3d 1037 (10th Cir.
2009). 	The Ninth Circuit held that applying the good-faith
exception to the exclusionary rule would amount to denying
defendants retroactive application of the rule in Gant.
Gonzalez, 578 F.3d at 1132-33. 	The parties in the Tenth Circuit
case stipulated to retroactive application, but the court
“decline[d] to apply the exclusionary rule when law enforcement
officers act in objectively reasonable reliance upon the settled
case law of [the jurisdiction].” 	McCane, 573 F.3d at 1045. 	We
find the Tenth Circuit’s approach more persuasive and hold that
evidence obtained in objective reasonable reliance on settled
judicial precedent that is later overturned should not be
excluded.
¶39 	In this case, the officers relied on a practice deemed
constitutional by both the Supreme Court and this court in order
to conduct their search. 	Thus, admitting the evidence police
found during the time when the officers reasonably believed they
had not completed the lawful purpose of their stop would not
serve to deter officers from unconstitutionally detaining vehicle
passengers. 	We note that this is not a case where police
interpreted an ambiguous law in their own favor. 	See State v.
Shoulderblade, 905 P.2d 289, 294 (Utah 1995) (declining to apply

3 Mr. Baker argues that we should strike the portion of the
State’s brief that mentions FBI statistics about assaults on
police officers during traffic stops and a news article about a
mentally imbalanced woman who shot a police officer during a
traffic stop because the statistics and news article were not
part of the record on appeal. 	However, the State is not using
the statistics or news article as proof of any fact in evidence,
but rather using them to bolster its claim that traffic stops are
dangerous and require extra safety precautions to protect
officers. 	Compare Northland Ins. Co. v. Cont’l W. Ins. Co., 550
N.W.2d 298, 303 (Minn. Ct. App. 1996) (allowing admission of
statements from another case’s briefs because the information was
not presented as evidence of what happened, but rather to expand
the court’s understanding of that judicial opinion), with State
v. Burrell, 697 N.W.2d 579, 589 n.1 (Minn. 2005) (excluding a
newspaper article introduced to support factual details of a
murder victim’s alleged manner of death). 	Accordingly, we deny
Mr. Baker’s motion to strike.
No. 20080351 	16
a good-faith exception to the exclusionary rule to evidence
discovered during “a suspicionless, investigatory roadblock,”
even though such a roadblock was not clearly unconstitutional at
the time it was implemented because it would create an incentive
“to violate constitutional guarantees by seizing upon an
ambiguity”). 	If the case law had been ambiguous prior to the
time the officers conducted a search later definitively declared
unconstitutional, the good-faith exception would not apply and
the evidence would be excluded.
¶40 	Having declined to apply the exclusionary rule to
evidence gathered during the unconstitutional detention of Mr.
Baker, we now turn to the question of whether officers could
frisk him after the drug dog alerted to the presence of drugs in
the vehicle, either because they believed he was armed or
dangerous or because the dog sniff gave rise to probable cause
that Mr. Baker was in possession of illegal drugs. 	We hold that
the officers did not have an objectively reasonable belief that
Mr. Baker may be armed and dangerous sufficient to justify a
protective frisk. 3 	And because the State did not argue, either
on appeal or in the district court, that the evidence obtained
during the dog sniff gave rise to probable cause justifying a
warrantless search for illegal drugs, we do not consider that
argument.

17 	No. 20080351
III. 	POLICE OFFICERS HAD NO REASON TO BELIEVE THAT MR. BAKER WAS
ARMED AND DANGEROUS SUFFICIENT TO JUSTIFY A PAT-DOWN SEARCH
¶41 	“[O]fficers who conduct ‘routine traffic stop[s]’ may
‘perform a pat-down of a driver and any passengers upon
reasonable suspicion that they may be armed and dangerous.’”
Arizona v. Johnson, 129 S. Ct. 781, 787 (2009) (quoting Knowles
v. Iowa, 525 U.S. 113, 117-118 (1998) (second alteration in
original)). 	Because a pat-down search is “an intrusion of
greater magnitude” than a background check or ordering a driver
and passengers from a car, officers may not perform a pat-down
search absent reasonable articulable suspicion. 	State v. Warren,
2003 UT 36, ¶ 25, 78 P.3d 590. 	“[T]he only permissible objective
of the . . . frisk is the discovery of weapons that may be used
against the officer or others.” 	State v. Peterson, 2005 UT 17,
¶ 12, 110 P.3d 699 (internal quotation marks omitted). 	A
“weapons search” is valid “only if the officer reasonably
believes both that the suspect is dangerous, and that he may
obtain immediate control of weapons.” 	State v. Brake, 2004 UT
95, ¶ 26, 103 P.3d 699. 	We evaluate the reasonableness of a
weapons search “objectively according to the totality of the
circumstances.” 	Warren, 2003 UT 36, ¶ 14.
¶42 	In order to determine whether a stop was reasonable, we
look to whether the “specific facts . . . , considered with
rational inferences from those facts, reasonably warrant the
intrusion.” 	Id. 	The State argues that the presence of the
knives voluntarily relinquished to the officers prior to the
arrest of the driver was sufficient to give rise to reasonable
articulable suspicion that Mr. Baker was armed and dangerous.
The State further argues that the officers did not have to take
Mr. Baker’s word that he did not possess more knives or another
weapon, that they could consider the drug dog’s alert on the car
as support that Mr. Baker was armed and dangerous, and that the
court of appeals put too much weight on the officers’ subjective
lack of fear and unlawful actual purpose for searching the
passengers.
¶43 	We hold that when an individual voluntarily
relinquishes a knife, particularly when it is just a small pocket
knife, the knife alone does not give an officer automatic
justification to conduct a protective frisk. 	Rather, we evaluate
the officer’s reasonable articulable suspicion under the totality
of the circumstances.

No. 20080351 	18
A. 	We Do Not Consider the Thirteen Knives Recovered From the
Passengers in Isolation From the Totality of the Circumstances
¶44 	In considering whether police had reasonable
articulable suspicion that an individual posed a threat to their
safety, “[c]ourts must view the articulable facts in their
totality and avoid the temptation to divide the facts and
evaluate them in isolation from each other.” 	Warren, 2003 UT 36,
¶ 14. 	Thus, while the fact that a suspect turned a knife over to
the police may, in some situations, create an objectively
reasonable belief that the suspect is armed and dangerous, it
does not create automatic authorization for officers to conduct a
frisk.
¶45 	The State argues that the circumstances in this case
are indistinguishable from those justifying the weapons search in
Michigan v. Long, 463 U.S. 1032 (1983). 	In Long, police officers
on late night patrol of a rural area investigated a vehicle that,
after driving erratically and at excessive speeds, veered off the
road and into a ditch. 	Id. at 1035. 	The driver ignored the
officers’ initial request to produce his operator’s license and
registration and appeared to the officers to be under the
influence of something. 	Id. at 1036. 	When the driver approached
his car to retrieve the information sought by the officers, they
noticed a large hunting knife on the floor of the vehicle. 	Id.
Because they feared for their safety, they confiscated the knife
and conducted a search of the driver and the vehicle, which
uncovered marijuana. 	Id. 	Although it is true that the driver
was not searched until officers noticed the presence of the
knife, the court also considered the lateness of the hour, the
driver’s erratic driving behavior, the driver’s apparent
intoxication, and the driver’s failure to cooperate with simple
requests as indications that the officers held a reasonable fear
for their safety. 	Id. at 1050.
¶46 	The only commonalities between Long and this case are
the lateness of the hour and the presence of a knife. 	The
officers in this case did not believe that Mr. Baker was engaged
in any illegal activity--in fact he was only detained incidental
to the detention of the driver. 	The officers also reported that
Mr. Baker and his fellow passengers all cooperated with the
officers during their investigation. 	Further, the officers
denied fearing for their safety. 	And while the officers
suspected drug possession, that is not a crime for which an
offender is likely armed. 	See section III. A. 2. infra.
¶47 	We note that in this case Mr. Baker’s cooperation, the
officers’ subjective lack of fear for their safety, and lack of

19 	No. 20080351
suspicion that Mr. Baker was involved in a crime associated with
violence mitigates the presence of the thirteen knives. 	As a
result, we cannot conclude that the presence of the knives
automatically justified a pat-down search of Mr. Baker. 	Taking
all the facts together, we agree with the court of appeals in
that the police officers in this case did not have an objectively
reasonable belief that Mr. Baker was armed and dangerous
sufficient to justify a frisk for weapons.
B. 	The Court of Appeals Properly Considered the Officers’
Subjective Belief Concerning Their Safety and the Purpose for the
Pat-Down Search of Mr. Baker
¶48 	The State argues that the court of appeals placed undue
weight on the officers’ lack of subjective fear and unlawful
actual purpose to conduct the pat-down search. 	Specifically, it
argues that while the officers did not testify to being afraid,
they testified that traffic stops always present safety concerns,
particularly when the passengers possess knives. 	The State
argues that the court of appeals invalidated the search because
the officers had an improper purpose when conducting the
search--they were looking for drugs not weapons.
¶49 	Although a pat-down search will not be invalidated
merely because the officers on the scene did not actually fear
for their safety, we give “an officer’s subjective factual
determination based on experience and specialized training . . .
due weight as part of the objective analysis.” 	Warren, 2003 UT
36, ¶ 20. 	An officer’s generalized concern about the inherent
dangerousness of traffic stops does not support an objectively
reasonable belief that a particular suspect detained during a
traffic stop is armed and dangerous. 	Id. at ¶ 29. 	Additionally,
an officer’s “subjective understanding of the law is irrelevant.”
State v. Applegate, 2008 UT 63, ¶ 20, 194 P.3d 925.
¶50 	As an important factor in its totality of the
circumstances determination, the court of appeals noted that “all
three officers [on the scene during the traffic stop] testified
as to having no heightened fear for their safety.” 	State v.
Baker, 2008 UT App 115, ¶ 18, 182 P.3d 935. 	The court also
mentioned that the officers were searching for drugs when they
performed the search but only in the context of explaining the
officers’ subjective lack of fear. 	Id. 	When the facts that
support reasonable suspicion are as tenuous as they are in this
case, the fact that the officers did not actually fear for their
safety can weigh heavily on the ultimate determination that there
was no objective reason to believe that Mr. Baker posed a threat
to their safety. 	The court of appeals properly took the

No. 20080351 	20
officers’ subjective lack of fear into account when evaluating
the totality of the circumstances.
C. 	Suspicion of Drug Possession Does Not Support Reasonable
Suspicion That an Individual Is Armed and Dangerous
¶51 	If an officer suspects that an individual “‘has
committed, was committing or was about to commit a type of crime
for which the offender would likely be armed,’” the officer
automatically has the right to frisk the individual to search for
weapons. 	State v. White, 856 P.2d 656, 663 (Utah Ct. App. 1993)
(quoting Wayne R. LeFave, 3 Search and Seizure, § 9.4(a) at 506
(2d ed. 1987)). 	When an officer suspects an individual has
committed some other type of crime, such as possession of a small
amount of drugs, “‘there must be particular facts which lead the
officer to believe that a suspect is armed.’” 	Brake, 2004 UT 95,
¶ 32 (quoting State v. Warren, 2001 UT App 346, ¶ 15, 37 P.3d
270).
¶52 	Officers in this case knew that the license of the
driver had been suspended for drugs and that a drug dog sniff had
revealed the presence of narcotics in the vehicle. 	Thus, they
had reasonable suspicion that the car’s occupants, including Mr.
Baker, may possess narcotics. 	But the suspected possession of
narcotics does not logically support an objectively reasonable
belief that Mr. Baker was armed and dangerous. 	Unless officers
can point to a specific reason why suspected possession of
narcotics by an individual led them to believe the individual to
be armed and dangerous, their suspicion of drug possession cannot
support a reasonable belief that the individual posed a threat.
D. 	Considering the Totality of the Circumstances, the Officers
Did Not Have an Objectively Reasonable Belief That Mr. Baker Was
Armed and Dangerous
¶53 	We have previously applied the totality of the
circumstances test in a similar situation and held that an
officer did not have objectively reasonable suspicion that a
detained individual posed a threat. 	Warren, 2003 UT 36, ¶ 34.
In Warren, an officer observed the defendant talking to a
pedestrian through his car window in a deserted area of downtown
at 4:45 a.m. and suspected that he may be involved in
prostitution. 	Id. ¶ 3. 	However, the officer did not hear the
discussion between the pedestrian and the driver and was not in a
position to observe any conduct between them, such as the
exchange of money. 	Id. 	After concluding the encounter with the
pedestrian, the defendant made a lane change without signaling,
so the officer pulled him over based solely on the traffic

21 	No. 20080351
violation. 	Id. ¶ 4. 	The officer soon discovered that the
defendant was driving on a suspended license and requested that
he exit the vehicle to sign a citation. 	Id. ¶ 5. 	Although the
officer admitted at trial that he had no reason to believe that
the defendant was armed, he conducted a pat-down search and
discovered drugs. 	Id. ¶ 6.
¶54 	On appeal, we ruled that the officer did not have
reasonable articulable suspicion to believe the driver was armed
and dangerous. 	Id. ¶ 33. 	We reasoned that the pat-down search
could be “supported by the inherent dangerousness of a traffic
stop, the lateness of the hour, the deserted downtown location,
the lie by [the defendant] regarding the status of his license,
the need to impound [the defendant’s] car, and [the officer’s]
suspicion that [the defendant] was involved in drug activity or
prostitution.” 	Id. ¶ 32. 	However, considering the totality of
the circumstances, “including [the defendant’s] cooperative
behavior, his response that he did not have any weapons on him,
his willing compliance with the order to exit his vehicle,” and
the officer’s subjective belief that the defendant was not armed
or dangerous, we concluded that the officer had no objectively
reasonable belief that the defendant posed a threat to the
officer’s safety. 	Id. ¶¶ 32-33.
¶55 	The frisk in this case is similar to the officer’s
frisk of the defendant in Warren. 	As in Warren, the officers’
suspicion that Mr. Baker could pose a threat could be supported
by the inherent dangerousness of traffic stops, the lateness of
the hour, a hunch that Mr. Baker may be involved in drug-related
activity, and the potential need to impound the car in which he
was traveling. 	Additionally, Mr. Baker and the defendant in
Warren were similarly cooperative. 	But unlike the defendant in
Warren, Mr. Baker had not told officers a verifiable lie, was
suspected only of drug possession not drug trade, and was not the
individual who had precipitated the initial traffic stop. 	The
only material difference between the two cases was Mr. Baker’s
voluntary relinquishment of a knife, a fact mitigated by Mr.
Baker’s cooperation, lack of threatening behavior, and the
officers’ subjective lack of fear for their safety. 	Considering
the totality of the circumstances, we find that the police did
not have objective reasonable articulable suspicion to frisk Mr.
Baker.
¶56 	The court of appeals properly considered the presence
of the knives as part of the totality of the circumstances and
found that “in this particular situation, the mere presence of
the knives, which had been confiscated at the time the officers
decided to search the passengers, is not a ‘specific and

No. 20080351 	22
articulable fact[] which, taken together with the rational
inferences from [that] fact[], would lead a reasonable person to
conclude that the suspect may be armed and presently dangerous.’”
State v. Baker, 2008 UT App 115, ¶ 17, 182 P.3d 935 (quoting
Terry v. Ohio, 392 U.S. 1, 29 (1967)).
IV. 	WE DO NOT ADDRESS WHETHER THE OFFICERS HAD PROBABLE CAUSE TO
SEARCH MR. BAKER FOR DRUGS
¶57 	The issue of whether a drug dog’s positive indication
on a vehicle gives rise to probable cause to arrest or search the
passengers of that vehicle under exigent circumstances, excusing
the requirement of a warrant, is an issue of first impression in
this court. 	The drug dog’s positive indication on the rear
driver’s side door of the vehicle may have given police probable
cause to arrest the occupants of the car including Mr. Baker or
to seek a search warrant. 	And the difficulty of obtaining a
warrant in the middle of the night combined with a likelihood
that Mr. Baker would destroy evidence before police could obtain
a warrant could have created exigent circumstances sufficient to
justify the pat-down search. 	See State v. Duran, 2007 UT 23 ¶ 7,
156 P.3d 795 (finding that “prevention of the imminent
destruction of evidence” can satisfy the “exigent circumstances”
requirement (internal quotation marks omitted)); State v.
Rodriguez, 2007 UT 15, ¶¶ 43-44, 156 P.3d 771 (noting that the
court could consider the difficulty of obtaining a warrant in
determining whether exigent circumstances justify a search,
although “[t]he mere possibility of delay does not give rise to
an exigency” (internal quotation marks omitted)). 	But the State
has not argued that the officers had probable cause to search Mr.
Baker for drugs. 	Had the State raised this argument, it may have
dictated a different outcome. 	But where the law in this area is
unsettled and we are without the benefit of adversarial briefing
on the subject, we would be ill-advised to resolve this case on
that basis. 	See Pearson v. Pearson, 2008 UT 24, ¶ 10 n.8, 182
P.3d 353 (declining to consider a potentially valid argument that
was not briefed or argued); Morgan v. Quailbrook Condo. Co., 704
P.2d 573, 577 n.4 (Utah 1985) (same).
CONCLUSION
¶58 	Because officers had finished processing the arrest of
the driver and were not allowed to conduct a search incident to
her arrest, we hold that they had improperly extended the
duration of Mr. Baker’s detention at the time the dog sniff
occurred. 	However, we decline to apply the exclusionary rule to
the evidence obtained as a result of this violation because the
officers acted in good faith reliance on previous precedent that

23 	No. 20080351
allowed them to conduct a search of the vehicle incident to
arrest. 	But we find that the officers lacked reasonable
articulable suspicion that the passengers posed a threat to their
safety at the time they conducted the pat-down search of Mr.
Baker. 	Accordingly, we affirm the decision of the court of
appeals.
---
¶59 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins and Justice Nehring concur in Justice Parrish’s
opinion.