State v. Miller ( 2019 )

2019 UT App 18THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL J. MILLER,
Appellant.
Opinion
No. 20170084-CA
Filed January 31, 2019
Third District Court, Silver Summit Department
The Honorable Paige Petersen
No. 151500325
Cory A. Talbot, Tamara L. Kapaloski,
Dawn M. David, and Brandon T. Christensen
Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGE JILL
M. POHLMAN concurred. JUDGE GREGORY K. ORME dissented,
with opinion.
HAGEN, Judge:
¶1 Michael J. Miller appeals the district court’s denial of his
motion to suppress evidence of marijuana discovered during a
traffic stop. Miller entered a plea to one count of possession of a
controlled substance with intent to distribute, reserving the right
to appeal the denial of his motion to suppress. He argues that the
traffic stop was impermissibly prolonged without reasonable
suspicion when the officer conducting the traffic stop asked him
to walk back to the patrol car, engaged him in unrelated
questioning before and during the citation process, and waited
State v. Miller
to run a records check until later in the stop. Because none of
these actions unconstitutionally extended the stop, we affirm.
BACKGROUND 1
The Traffic Stop
¶2 At 10:41 p.m., a Utah Highway Patrol Trooper (the officer)
stopped Miller for driving seventy miles per hour on I-80, five
miles per hour above the posted limit. After Miller gave the
officer his driver license and the car rental agreement, the officer
asked Miller to come back to his patrol vehicle. The officer
testified that he asks drivers to come back to his patrol vehicle in
90% of traffic stops because he sometimes needs to gather
additional information from drivers. In addition, by having
Miller sitting in the passenger seat of the patrol vehicle and
conversing with him, the officer “could try and gain suspicion
while actively filling out a citation.”
¶3 Miller followed the officer back to the patrol vehicle.
Although Miller had a crutch with him and “was limping a little
bit,” the district court found that “it didn’t take him an excessive
amount of time to get back to the patrol [vehicle].” Once Miller
was in the passenger seat, the officer stood at the passenger door
and asked Miller, “What’d ya do to your ankle?” Miller told the
officer how he came to be injured, and the officer asked no
follow-up questions. Within one minute, the officer “was back
on his side of the car and he began to fill out the citation.”
¶4 Over the next seven minutes, the officer filled out the
citation while conversing with Miller. The officer asked Miller
1. “We recite the facts in detail because the legal analysis in a
search and seizure case is highly fact dependent.” State v.
Warren, 2003 UT 36, ¶ 2, 78 P.3d 590.
20170084-CA 2 2019 UT App 18State v. Miller
“some questions about his license and the car and where he
rented it.” But “the majority of the conversation was the
defendant making conversation with the [officer] about various
topics[,] such as children and marriage and relationships.” In
reviewing the dashboard camera recording of the conversation,
the district court found that Miller initiated much of the
conversation and that the questions the officer asked “did not
take up much of that time.” The court also credited the officer’s
testimony that “during this time he was filling out the citation.”
¶5 After finishing all but one section of the citation, the
officer informed Miller that he needed to call Miller’s
information into dispatch. In his testimony, the officer explained
that the final section of the citation requires him to identify the
offenses or traffic code violations committed and whether he will
issue a ticket or a warning. The officer “leave[s] the violations
part, the offenses part blank until [he hears] back from dispatch
in case there’s any other offenses that [he] might be adding to the
citation.” The district court accepted the officer’s testimony that
“he needed to hear back from dispatch before he could complete
the citation.”
¶6 The officer testified that, approximately eleven minutes
after he officer initiated the stop, he called into dispatch for a
“license records and criminal-history check.” On the dashboard
camera recording, an automated voice announces, “License is
valid.” The officer’s statements to dispatch are largely inaudible,
but he testified that he asked the dispatch operator to run a
criminal-history or “Triple I” check, which he typically requests
only when the driver has roused his suspicions. The parties also
agree that the officer’s request included a check for outstanding
warrants. While waiting for dispatch to respond with additional
information, the officer deployed his police service dog around
Miller’s car.
¶7 Approximately sixty seconds after the call to dispatch, the
dog alerted the officer to the presence of a controlled substance.
20170084-CA 3 2019 UT App 18State v. Miller
Several minutes after the dog signaled the alert, dispatch
responded with the results of the criminal-history check. A
subsequent search of Miller’s car uncovered seventy-one pounds
of marijuana.
Miller’s Motion to Suppress
¶8 The State charged Miller with one count of possessing a
controlled substance with intent to distribute and one count of
speeding. After a preliminary hearing at which the officer
testified, Miller was bound over for trial.
¶9 Miller moved to suppress all evidence discovered during
the search of his vehicle, arguing that the “search and seizure
went well beyond the time necessary to conduct and conclude a
routine traffic stop involving a speeding ticket for going 5 over.”
In support of the motion, Miller relied on the officer’s testimony
at the preliminary hearing and did not request an opportunity to
present further evidence.
¶10 The district court denied the motion to suppress. In an
oral ruling, the district court addressed “whether the unrelated
investigations[,] which were some of the questioning and the
dog search, . . . had the effect of extending [the] stop.” First, the
court concluded that the officer did not measurably extend the
stop by conversing with Miller in the patrol vehicle. The court
found that the officer “said much less than [Miller]” and the
questions he did ask “were going on simultaneously with him
filling out a portion of the citation.”
¶11 Second, the court concluded that the dog sniff did not
measurably extend the stop. Because the officer could not finish
the citation until he heard back from dispatch on the records
check, the court found that he could not have completed the
mission of the traffic stop within the sixty seconds it took for the
dog to alert the officer to the presence of drugs. The court also
20170084-CA 4 2019 UT App 18State v. Miller
rejected Miller’s argument that it was impermissible for the
officer to fill out a portion of the citation before calling dispatch:
Is it possible that [the officer] could have shaved
off some time if he had called dispatch first? It’s
possible, but that [would be] speculation on my
part . . . . [And] that would basically be the Court
holding that the [officer] has to call dispatch
immediately upon getting back to his car. And
that’s micromanaging. That would be the Court
telling the officer the order in which he has to
perform the duties that are related to and
permissible steps at a traffic stop.
The court concluded that the officer “was reasonably diligent in
pursuing the mission of the traffic stop” and that “his unrelated
questioning and the dog sniff did not measurably extend the
stop, but took place during the time that he was conducting a
permissible investigation that was related to the reason for the
stop.”
¶12 Following the denial of his motion to suppress, Miller
pled guilty to possession of marijuana with the intent to
distribute, reserving his right to appeal the district court’s denial
of his motion to suppress. He now appeals.
ISSUE AND STANDARD OF REVIEW
¶13 Miller contends that the district court erred in denying his
motion to suppress the evidence discovered during the officer’s
search of his car. “We review a trial 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. Fuller,
2014 UT 29, ¶ 17, 332 P.3d 937. “While the court’s factual
findings are reviewed for clear error, its legal conclusions are
20170084-CA 5 2019 UT App 18State v. Miller
reviewed for correctness, including its application of law to the
facts of the case.” Id.ANALYSIS
¶14 The Fourth Amendment to the United States Constitution
protects citizens from “unreasonable searches and seizures.” U.S.
Const. amend. IV. 2 “[T]he ‘touchstone of the Fourth Amendment
is reasonableness,’ which ‘is measured in objective terms by
examining the totality of the circumstances.’” State v. Baker, 2010
UT 18, ¶ 10, 229 P.3d 650 (alteration in original) (quoting Ohio v.
Robinette, 519 U.S. 33, 39 (1996)). In evaluating the
reasonableness of a traffic stop, we assess whether the stop was
“justified at its inception” and “reasonably related in scope to
the circumstances that justified the interference in the first
place.” Id. ¶ 12 (quotation simplified). Miller does not challenge
the justification for the stop because it is undisputed that the
officer had probable cause to stop Miller for speeding. 3
2. Miller also cites Article 1, Section 14 of the Utah Constitution,
but he does not argue that the state constitution affords greater
protection than the Fourth Amendment. To the extent he
attempts to raise a separate argument based on the state
constitution, he has inadequately briefed this argument. See State
v. Fuller, 2014 UT 29, ¶ 50, 332 P.3d 937 (declining to review a
state constitutional claim where the appellant’s brief “contains
bald citations to authority without development of that authority
and reasoned analysis based on that authority” (quotation
simplified)).
3. The dissent takes issue with the justification for the stop, citing
the officer’s testimony that he does not stop every driver going
five miles per hour over the speed limit and that he primarily
looks for “out-of-state plates” that “are huge with drug
transportation.” See infra ¶ 38. The officer’s subjective motivation
(continued…)
20170084-CA 6 2019 UT App 18State v. Miller
Therefore, we must determine only whether the traffic stop,
which was justified at its inception, was reasonable in duration
and scope.
¶15 When a vehicle is pulled over for investigation of a traffic
violation, “[t]he temporary seizure of driver and passengers
ordinarily continues, and remains reasonable, for the duration of
the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (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.” 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.¶16 Miller contends that the officer impermissibly prolonged
the traffic stop without reasonable suspicion of additional
(…continued)
for stopping Miller would have been relevant under the pretext
doctrine, which examined “the detaining officer’s state of mind
[to] divine his or her true motives for making the stop.” State v.
Lopez, 873 P.2d 1127, 1137 (Utah 1994). However, in Lopez, the
Utah Supreme Court rejected that doctrine, holding that “a
traffic stop based on probable cause or reasonable suspicion that
the driver has violated any one of the multitude of applicable
traffic and equipment regulations is lawful under the Fourth
Amendment,” regardless of whether a reasonable officer “would
have stopped the defendant for the traffic violation absent a
desire to search for evidence of more serious crime.” Id. at 1140
(quotation simplified). Because “the Fourth Amendment simply
does not require an officer’s state of mind to perfectly
correspond to his or her legally justified actions,” id. at 1137, the
officer’s reasons for making the stop are irrelevant where, as
here, it is undisputed that the officer observed a traffic violation
that objectively justified the stop.
20170084-CA 7 2019 UT App 18State v. Miller
criminal activity. Specifically, he argues that the officer extended
the stop by asking him to walk back to the patrol car, engaging
him in unrelated questioning before and during the citation
process, and waiting to run a criminal-history check until later in
the stop. The State does not contend that the officer had
reasonable suspicion to extend the length of the stop to
investigate other criminal activity. Therefore, we consider
whether the officer’s actions prolonged the time “reasonably
required to complete” the mission of the traffic stop. See State v.
Martinez, 2017 UT 43, ¶ 12, 424 P.3d 83 (quoting Illinois v.
Caballes, 543 U.S. 405, 407 (2005)).
I. Request to Accompany the Officer to the Patrol Car
¶17 Miller first contends that the officer unlawfully prolonged
the stop by asking him to exit his vehicle and accompany the
officer to the patrol car. “An otherwise lawful traffic stop can
become unreasonable if it is prolonged beyond the time
reasonably required to complete that mission.” State v. Martinez,
2017 UT 43, ¶ 12, 424 P.3d 83 (quotation simplified). But the
“mission” of a traffic stop is two-fold: “‘to [1] address the traffic
violation that warranted the stop and [2] attend to related safety
concerns.’” Id. ¶ 14 (quoting Rodriguez v. United States, 135 S. Ct.
1609, 1614 (2015)). Because traffic stops “are especially fraught
with danger to police officers,” Michigan v. Long, 463 U.S. 1032,
1047 (1983), an officer may “take certain negligibly burdensome
precautions in order to complete his mission safely,” Rodriguez,
135 S. Ct. at 1616.
¶18 In Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per
curiam), the Supreme Court noted that officers face appreciable
risks during traffic stops, such as being assaulted by a seated
driver who can make unobserved movements or being injured
by passing traffic. See id. at 110–11. Acknowledging “it would be
unreasonable to require that police officers take unnecessary
risks in the performance of their duties,” the Court held that
“once a motor vehicle has been lawfully detained for a traffic
20170084-CA 8 2019 UT App 18State v. Miller
violation, the police officers may order the driver to get out of
the vehicle without violating the Fourth Amendment[].” Id. at
110, 111 n.6 (quotation simplified). Some circuits have
interpreted this to mean that officers may also ask drivers to join
them in the patrol vehicle. E.g., United States v. Riley, 684 F.3d
758, 764 (8th Cir. 2012) (stating that “a reasonable investigation
during a traffic stop may include . . . requesting the driver to sit
in the patrol car” (quotation simplified)). According to the
Supreme Court, when weighed against the “legitimate and
weighty” concern for officer safety, the additional intrusion
occasioned by asking lawfully seized drivers to exit their
vehicles is “at most a mere inconvenience.” Mimms, 434 U.S. at110–11.
¶19 Here, Miller had been lawfully detained for speeding
when the officer asked him whether they could walk back to the
patrol vehicle together. Miller agreed to walk back to the patrol
vehicle, assuring the officer that he was able to do so. Although
Miller limped slightly, the district court found that “it didn’t
take him an excessive amount of time to get back to the patrol
car.” To the extent that the officer’s request added any time to
the stop, 4 we conclude it was a negligibly burdensome
4. According to the officer, he routinely asks drivers to
accompany him to the patrol vehicle so he can complete the
tasks associated with the traffic stop and “gather further
information from them.” By eliminating the need to walk back
and forth between vehicles, the officer may have been able to
complete his tasks more expeditiously. The officer also
acknowledged that increasing his interaction with the driver
may allow him to gain additional reasonable suspicion over the
course of the stop. To the extent the officer may have had
ulterior motives in asking Miller to join him in the patrol car,
“the fact that the officer does not have the state of mind which is
hypothecated by the reasons which provide the legal justification
(continued…)
20170084-CA 9 2019 UT App 18State v. Miller
precaution outweighed by the legitimate interests in officer
safety. See Rodriguez, 135 S. Ct. at 1616.
¶20 Citing Rodriguez, Miller argues that officers may not ask
drivers to step out of their vehicles unless safety is an actual
concern because such a request detours from the officer’s
mission and unconstitutionally prolongs the stop. According to
Miller, officers must develop reason to believe that they are in
danger before they may take precautionary measures previously
approved by the Supreme Court. To the contrary, Rodriguez
emphasizes that, unlike a general interest in criminal
enforcement, “the government’s officer safety interest stems
from the mission of the stop itself.” Id. Additional reasonable
suspicion is required only when the officer exceeds the scope of
the traffic stop. See State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650.
Because “reasonable officer safety measures are related to the
mission—and therefore to the scope—of a traffic stop itself,”
Martinez, 2017 UT 43, ¶ 14, the officer’s request did not require
additional reasonable suspicion that Miller posed a danger.
II. Unrelated Questioning
¶21 Miller next contends that the officer detoured from the
traffic stop’s mission when he asked Miller questions unrelated
to the traffic violation. The Supreme Court has held that officers
may ask questions unrelated to the purpose of a traffic stop “so
long as those inquiries do not measurably extend the duration of
the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009); see also
Muehler v. Mena, 544 U.S. 93, 101 (2005) (holding that because the
officers’ unrelated questioning did not prolong the detention,
there was no additional seizure requiring independent
(…continued)
for the officer’s action does not invalidate the action taken as
long as the circumstances, viewed objectively, justify that
action.” Scott v. United States, 436 U.S. 128, 138 (1978).
20170084-CA 10 2019 UT App 18State v. Miller
reasonable suspicion). Therefore, the “critical question . . . is not
whether the officer’s [questions were] related to the purpose of
the stop, but whether [those questions] prolonged—i.e., added
time to—the stop.” See State v. Taylor, 2017 UT App 89, ¶ 15, 402
P.3d 790. Here, Miller challenges the officer’s unrelated
questioning at two distinct points during the traffic stop—first,
when the officer paused by the passenger door of the patrol car
to ask about Miller’s injury, and, second, when the officer asked
about Miller’s travel plans while completing the citation.
¶22 First, Miller argues that the officer measurably extended
the stop by asking, “What’d ya do to your ankle?” But this
single, casual inquiry did not unreasonably extend the stop. As
our supreme court has recognized, a brief exchange of
pleasantries, such as, “‘How ‘bout them Georgia Bulldogs?’ does
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.” State v. Simons, 2013 UT 3, ¶ 32, 296 P.3d 721(quotation simplified). The Fourth Amendment’s reasonableness
standard affords flexibility and “reasonable breathing space,”
which “leaves room for traffic stop extensions that are de
minimis in length but not independently justified by reasonable
suspicion.” Id. ¶ 40 (Lee, J., concurring). “Otherwise, the
constitution would be implicated by such commonplace acts as a
police officer’s small talk or rumination about the weather.” Id.
¶23 Miller argues that Rodriguez abolished such a de minimis
extension doctrine. But, as the Utah Supreme Court recognized
even before Rodriguez, there is a distinction between a de
minimis extension during a lawful detention and a de minimis
extension once the purpose of the stop is completed. Simons,
2013 UT 3, ¶ 35. While a de minimis extension might be
reasonable “at any point before the conclusion of an otherwise
lawful detention, . . . ‘once the lawful purpose of the stop has
concluded, the occupants of the vehicle must be released from
their temporary seizure.’” Id. (quoting State v. Baker, 2010 UT 18,
20170084-CA 11 2019 UT App 18State v. Miller
¶ 17, 229 P.3d 650); see also State v. Martinez, 2017 UT 43, ¶ 23, 424
P.3d 83 (distinguishing Rodriguez, in part, because “the extension
in Rodriguez took place after the mission of the stop had been
concluded”); State v. Sosa, 2018 UT App 97, ¶ 12, 427 P.3d 448(distinguishing Rodriguez and Baker “because the request for a
dog sniff and the resulting alert occurred during the traffic stop,
not after its completion”). Because the authority for the seizure
ends when the traffic stop is completed, even a de minimis
extension constitutes an unlawful detention absent independent
reasonable suspicion. Simons, 2013 UT 3, ¶ 35. But while a
motorist is lawfully detained, the question is not whether the
officer might have completed the stop in an incrementally more
efficient manner, but whether the officer pursued his
investigation in “a diligent and reasonable manner.” United
States v. Sharpe, 470 U.S. 675, 687 (1985). “‘The touchstone of the
Fourth Amendment is reasonableness.’” Martinez, 2017 UT 43,
¶ 11 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Reading
Rodriguez as broadly as Miller suggests would eliminate the very
flexibility the reasonableness standard affords.
¶24 Miller also contends that the officer extended the
detention by asking questions unrelated to the stop while filling
out the citation. Relying on State v. Duhaime, 2011 UT App 209,
258 P.3d 649, Miller argues that the officer’s questions regarding
his travel plans were unrelated to the traffic stop’s mission and
therefore unconstitutionally prolonged the detention. In
Duhaime, this court suggested that questions about travel plans
may “exceed the scope of a traffic stop because the objective of
such questions is not to gain some insight into the traffic
infraction providing the legal basis for the stop, but to uncover
inconsistent, evasive or false assertions that can contribute to
reasonable suspicion or probable cause regarding drugs.” Id.
¶ 11 (quotation simplified). Because this court ultimately
reversed on other grounds, those observations were dicta. And,
under the facts presented here, there is no need to decide
whether questions about the driver’s travel plans go beyond the
20170084-CA 12 2019 UT App 18State v. Miller
purpose of a typical traffic stop. Even assuming that the officer’s
questions were unrelated to the purpose of the stop, they did not
measurably extend the detention.
¶25 The United States Supreme Court has “held repeatedly
that mere police questioning does not constitute a seizure.”
Muehler, 544 U.S. at 101 (quotation simplified). Therefore, where
police questioning does not prolong an otherwise valid
detention, no additional reasonable suspicion is required
because “there [is] no additional seizure within the meaning of
the Fourth Amendment.” Id. In the traffic stop context, the Court
has 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.” Johnson, 555 U.S. at 333. In other words, if there is no
measurable extension of the traffic stop, no additional reasonable
suspicion of criminal activity is needed to justify unrelated
questions because those inquiries do not implicate the Fourth
Amendment.
¶26 Here, the officer testified that he “always continue[d] to
actively be working on the citation while . . . speaking with
[Miller].” 5 The district court credited this testimony in finding
that the officer’s unrelated questioning “did not measurably
extend the stop.” Because the stop was not measurably
extended, the officer’s questions did “not convert the encounter
into something other than a lawful seizure.” See id.
5. Miller argues that “even the best multi-taskers will be
distracted from their main task while engaging in a
conversation.” But the potential loss of efficiency while
multitasking cannot be enough, standing alone, to impermissibly
extend the stop; otherwise, the Supreme Court’s holding in
Arizona v. Johnson, 555 U.S. 323 (2009), would have no
application.
20170084-CA 13 2019 UT App 18State v. Miller
III. Records Check
¶27 Finally, Miller contends that the officer prolonged the
stop by asking dispatch to conduct a records check, during
which the officer conducted the dog sniff. “Beyond determining
whether to issue a traffic ticket, an officer’s mission includes
ordinary inquiries incident to the traffic stop.” Rodriguez v.
United States, 135 S. Ct. 1609, 1615 (2015) (quotation simplified).
“Typically such inquiries involve checking the driver’s license,
determining whether there are outstanding warrants against the
driver, and inspecting the automobile’s registration and proof of
insurance.” 6 Id. These checks are part of the stop’s mission
because they “serve the same objective as enforcement of the
6. In State v. Lopez, 873 P.2d 1127 (Utah 1994), the Utah Supreme
Court held that “running a warrants check during the course of a
routine traffic stop does not violate the Fourth Amendment, 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.” Id. at 1133. This
holding was based on the concern that “[r]unning a warrants
check without reasonable suspicion of criminal activity beyond
the traffic offense itself arguably exceeds the reasonable scope of
a traffic stop.” Id. at 1132. Rodriguez has since clarified that
checking for outstanding warrants is directly related to the
mission of ensuring highway safety and is part of the stop itself.
See 4 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth
Amendment § 9.3(c) (5th ed. 2018) (citing Lopez and other pre-
Rodriguez cases but noting “that the Supreme Court in Rodriguez
v. United States expressly approved determining whether there
are outstanding warrants against the driver as a valid aspect of
carrying out a traffic stop, given the fact that traffic stops are
especially fraught with danger to police officers, which means
such action is permissible even if it does prolong the traffic stop”
(quotation simplified)).
20170084-CA 14 2019 UT App 18State v. Miller
traffic code: ensuring that vehicles on the road are operated
safely and responsibly.” Id. For example, a warrants check can
“determine whether the apparent traffic violator is wanted for
one or more previous traffic offenses,” which serves “objectives
sufficiently related to the initial reason for the stop, in much the
same way as does the license/registration check.” 4 Wayne R.
LaFave, Search & Seizure: A Treatise on the Fourth Amendment
§ 9.3(c) (5th ed. 2018).
¶28 Although police may not “extend an otherwise-completed
traffic stop, absent reasonable suspicion, in order to conduct a
dog sniff,” Rodriguez, 135 S. Ct. at 1614, a dog sniff conducted
during a lawful detention does not implicate the Fourth
Amendment, Illinois v. Caballes, 543 U.S. 405, 409 (2005). Because
the records checks listed in Rodriguez are within the scope of a
lawful traffic stop, a dog sniff that occurs while an officer is
performing these checks does not require additional reasonable
suspicion. State v. Sosa, 2018 UT App 97, ¶ 14, 427 P.3d 448(holding that a dog sniff requested and performed before the
officer completed a records check did not violate the Fourth
Amendment).
¶29 Notwithstanding this authority, Miller contends that the
traffic stop was extended beyond the time necessary to complete
the stop’s mission because, in addition to the routine record
checks Rodriguez identified as mission-related, the officer
requested a criminal-history check. But nothing in the record
supports the assumption that but for the criminal-history check,
the officer would have otherwise completed the “ordinary
inquiries incident to the traffic stop” before the dog alert.
Rodriguez, 135 S. Ct. at 1615 (quotation simplified). One of these
ordinary inquires is “determining whether there are outstanding
warrants against the driver.” Id. Both Miller and the State agree
that the records check the officer requested included a check for
warrants. And although the officer testified that it might take a
dispatcher several minutes to go through a lengthy criminal-
history to determine what information was pertinent to the stop,
20170084-CA 15 2019 UT App 18State v. Miller
there was no testimony as to how long it typically takes to
complete a warrants check alone. The district court found that
the drug dog signaled an alert within sixty seconds after the
officer contacted dispatch. Without evidence in the record that a
warrants check would have been completed in less than sixty
seconds, there is no basis to conclude that the officer’s request
for a more thorough criminal-history check prolonged the stop.
¶30 Miller also argues that, by not contacting dispatch at the
outset of the stop, the officer manipulated the stop’s order of
operations to give himself “bonus time” to conduct the dog sniff.
As an initial matter, the officer’s subjective intent is irrelevant so
long as the actions taken by the officer are objectively reasonable.
See Scott v. United States, 436 U.S. 128, 138 (1978). Fourth
Amendment jurisprudence forecloses ”any argument that the
constitutional reasonableness of traffic stops depends on the
actual motivations of the individual officers involved.” Whren v.
United States, 517 U.S. 806, 813 (1996). Therefore, we consider
whether the scope of the stop was objectively reasonable under
the totality of the circumstances, without regard to the officer’s
subjective intent.
¶31 As Miller correctly points out, the authority for a seizure
“ends when tasks tied to the traffic infraction are—or reasonably
should have been—completed.” Id. at 1614. But the question is
whether the officer pursued his investigation in “a diligent and
reasonable manner,” not whether the investigation may have
been accomplished by less intrusive means. United States v.
Sharpe, 470 U.S. 675, 687 (1985). “A creative judge engaged in post
hoc evaluation of police conduct can almost always imagine
some alternative means by which the objectives of the police
might have been accomplished.” Id. at 686–87. “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. Baker, 2010 UT 18, ¶ 17, 229 P.3d 650.
20170084-CA 16 2019 UT App 18State v. Miller
¶32 The district court properly declined Miller’s invitation to
micromanage the details of the stop by “telling the officer the
order in which he has to perform the duties that are related to
and permissible steps at a traffic stop.” Other courts that have
addressed this issue have similarly refused to require officers to
initiate computer checks at the outset of traffic stops. See, e.g.,
United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004)
(recognizing that “neither our prior cases nor any other caselaw
of which we are aware institutes a per se rule requiring an officer
immediately to obtain the driver’s license and registration
information and initiate the relevant background checks before
asking questions”); People v. Chavez-Barragan, 2016 CO 66, ¶¶ 27–
28, 379 P.3d 330 (holding that officers “failure to multitask” by
calling in the driver license and registration at the outset of the
traffic stop was not a constitutional violation).
¶33 The Georgia Supreme Court’s analysis of a similar fact
pattern is instructive. In State v. Allen, 779 S.E.2d 248 (Ga. 2015),
the officer waited until “[a]bout eight minutes into the stop”
before he radioed for a computer records check on both the
driver and passenger. Id. at 251. While awaiting the response
from dispatch on the passenger, the officer deployed a drug
detection dog around the car. Id. Approximately three-and-a-half
minutes later, the dog signaled an alert, giving the officer
probable cause to continue the detention and search the car for
narcotics. Id. at 260. The question on appeal was “whether the
free-air dog sniff that resulted in probable cause to detain [the
car’s occupants] and search inside their car was done while some
other task related to the mission of the traffic stop was still being
conducted, so that the sniff did not add any time to the stop.” Id.at 253–54.
¶34 In Allen, it was undisputed that the officer “walked his
dog around the car while waiting for the results of the computer
check” and that he “had finished all other mission-related
actions by the time he retrieved his dog.” Id. But the court noted
that Rodriguez had “rejected the proposition that the
20170084-CA 17 2019 UT App 18State v. Miller
constitutional analysis depends on the order in which the
officers complete their actions.” Id. at 259. The court explained:
The sequence of the officer’s actions during a traffic
stop is not determinative; instead, the primary
question is whether the activity at issue was related
to the mission of the stop. If it is not, like a dog
sniff, it can be done only concurrently with a
mission-related activity, or it will unlawfully add
time to the stop. If, on the other hand, the task is a
component of the traffic-stop mission, it may be
done at any point during the stop. It does not
matter if a mission-related activity takes place as
soon as the stop begins or, as is the case here, after
other mission-related activities have been
completed.
Id. at 258–59. Because the court determined that a background
check on a passenger is a mission-related activity, it held that
such a mission-related activity could not unlawfully prolong the
stop regardless of the order in which the officer accomplished
those tasks. 7
7. It is unclear whether our supreme court would reach the same
conclusion under the facts in Allen. Recently, the Utah Supreme
Court considered whether a background check of a passenger
unconstitutionally prolonged a traffic stop. The court began “by
underscoring that reasonable officer safety measures are related
to the mission—and therefore to the scope—of a traffic stop
itself.” State v. Martinez, 2017 UT 43, ¶ 14, 424 P.3d 83. This
statement suggests that the court would agree with the Georgia
Supreme Court that a background check on a vehicle’s occupant
does not prolong an otherwise lawful stop because it is mission-
related and therefore within the scope of the stop itself.
However, the court went on to analyze whether the officer’s
(continued…)
20170084-CA 18 2019 UT App 18State v. Miller
¶35 Here, the officer requested the records check about eleven
minutes into the stop, after completing all but one part of the
citation. The district court credited the officer’s testimony “that
he needed to hear back from dispatch before he could complete
the citation.” Although the officer received an immediate
automated response that the license was valid, he did not yet
have any information on whether Miller had outstanding
warrants. Because checking outstanding warrants is a
mission-related component of a traffic stop, this task did not
extend the detention beyond its permissible scope. See 4 Wayne
R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment
§ 9.3(c) (5th ed. 2018) (noting that, under Rodriguez, “determining
whether there are outstanding warrants against the driver [is] a
valid aspect of carrying out a traffic stop, . . . which means such
action is permissible even if it does ‘prolong’ the traffic stop”
(quotation simplified)). Although it may have been more
efficient to call dispatch at the outset of the stop, we decline to
prescribe the order in which an officer must complete
mission-related tasks during a traffic stop so long as the officer is
pursuing the investigation in a reasonably diligent manner.
CONCLUSION
¶36 We conclude that the officer did not unconstitutionally
extend the duration of the traffic stop by asking Miller to sit in
(…continued)
questioning and background check of the passenger
“unreasonably extended the stop in question,” id. ¶ 19, an
analytical step that would be unnecessary if such actions were
part of the stop’s mission. Here, we need not reach the issue of
whether the broader criminal background check was within the
scope of the stop because it is undisputed that the officer was
also waiting for information on whether Miller had any
outstanding warrants when the drug dog signaled an alert.
20170084-CA 19 2019 UT App 18State v. Miller
the patrol car, by engaging in unrelated conversation, or by
requesting a records check. Accordingly, we affirm the district
court’s denial of Miller’s motion to suppress drug evidence
found pursuant to a lawful dog sniff.
ORME, Judge (dissenting):
¶37 I respectfully dissent from the majority’s assessment of
the “reasonableness” of the stop, primarily because of the
circumstances surrounding the criminal-history check the officer
conducted on Miller. While I agree with the majority that in
most instances “[a] court should not micromanage the details
of a traffic stop,” State v. Baker, 2010 UT 18, ¶ 17, 229 P.3d 650,
there are cases where the actions of an officer raise such concern
that further scrutiny of the stop is required, see Rodriguez v.
United States, 135 S. Ct. 1609, 1615 (2015) (providing that the
incidental checks conducted by an officer may not be performed
“in a way that prolongs the stop”) (emphasis added). See also
Baker, 2010 UT 18, ¶ 17 (“A court should not micromanage the
details of a traffic stop . . . so long as the duration of the stop is
reasonable under the totality of the circumstances.”) (emphasis
added).
¶38 In this case, there are two causes for concern. First, Miller
was stopped for going five miles above the posted speed limit,
which is simply not something for which Utah drivers are pulled
over when traveling on an interstate highway, in their own lane,
during decent weather. And in his testimony, the officer
acknowledged that he typically does not pull drivers over for
such an insignificant infraction and that he actually pulled Miller
over because Miller had “out-of-state plates” and such plates
“are huge with drug transportation.” 8 He also testified that his
8. Such plates are also “huge” with legitimate visitors from out
of state, who are far from a rarity in Utah, a state that actively
(continued…)
20170084-CA 20 2019 UT App 18State v. Miller
actions throughout the stop were driven by an intent to “gain
suspicion” on Miller, raising questions about how diligent the
officer was in wrapping up the issuance of a citation for the
traffic offense. And second, the officer admitted that he
“spend[s] more time” on certain stops, including running a
criminal-history check on people he finds suspicious. Such
admissions by an officer should, as a practical matter, trigger
closer scrutiny of whether the officer deliberately acted in a
manner to prolong the duration of the stop.
¶39 Here, the officer’s request for a “Triple I check” 9 was
based on a “suspicion” 10 that he had regarding Miller, not
anything related to Miller’s traffic offense or anything regarding
a safety concern that arose during the stop. I agree with Miller
that the officer prolonged the stop by requesting a “Triple I
check” as a means to buy himself additional time to conduct the
dog sniff.
(…continued)
positions itself as a tourist mecca. See, e.g., Utah Office of
Tourism, Calendar Year 2017—Utah TravelTrakAmerica Visitor
Profile Report & Insights 16 (May 2018), https://travel.utah.
gov/wp-content/uploads/CY17-Utah-Report-05182018.pdf [https:
//perma.cc/SS39-REZK] (“Utah hosts over 19 million visitors
annually.”).
9. A Triple I check refers to the “Interstate Identification Index,”
a “federal-state system for the exchange of criminal history
records.” 28 C.F.R. § 20.3(m) (2018).
10. Although the officer used the word “suspicion,” he did not
use the term in its Fourth Amendment sense—a “reasonable
articulable suspicion” of criminality. See State v. Baker, 2010 UT
18, ¶ 13, 229 P.3d 650. He used the term as meaning a feeling,
guess, or hunch.
20170084-CA 21 2019 UT App 18State v. Miller
¶40 Officers “may conduct certain unrelated checks during an
otherwise lawful traffic stop,” but they “may not do so in a way
that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.”
Rodriguez, 135 S. Ct. at 1615. There are, to be sure, certain
investigative activities unrelated to a traffic infraction that “are
so common as to now be a part of [a] ‘routine’” for officers
during a stop, including “a records check via radio or computer
regarding the criminal history of those stopped.” 4 Wayne R.
LaFave, Search & Seizure: A Treatise on the Fourth Amendment
§ 9.3(c), at 508 (5th ed. 2012). This type of inquiry “serves to
identify drivers who deserve (at least in the officer’s mind) more
intense scrutiny,” id. at 519, and aims at “detecting evidence of
ordinary criminal wrongdoing” rather than “ensuring that
vehicles on the road are operated safely and responsibly,”
Rodriguez, 135 S. Ct. at 1615 (quotation simplified). For a
relatively minor traffic infraction, a criminal history “counts for
very little [in assessing guilt for the infraction], but may lead to
interrogation that is intense, very invasive and extremely
protracted,” LaFave, Search & Seizure § 9.3(c), at 517–18
(quotation simplified), “even though the purpose of the stop had
nothing to do with such prior criminal history and even though
there had not yet developed any reasonable suspicion of more
serious criminal activity,” id. at 518–19.
¶41 But, in certain circumstances, officer safety may justify
running a criminal-history check because, “[b]y determining
whether a detained motorist has a criminal record or
outstanding warrants, an officer will be better apprized of
whether the detained motorist might engage in violent activity
during the stop.” United States v. Holt, 264 F.3d 1215, 1221‒22
(10th Cir. 2001) (en banc) (per curiam), abrogated on other grounds
as recognized by United States v. Stewart, 473 F.3d 1265 (10th Cir.
2007). Such circumstances, however, must be based on a
“subjective assessment of [a] safety risk.” See State v. Brake, 2004
UT 95, ¶ 24, 103 P.3d 699.
20170084-CA 22 2019 UT App 18State v. Miller
¶42 In this case, officer safety was not a concern. It was a full
eleven minutes into this uneventful stop before the officer
requested Miller’s criminal history, during which time Miller
had done or said nothing to suggest he posed a threat to the
officer’s safety. At that point, the officer had essentially
completed his citation, and it would have been more efficient, as
well as safer, ultimately, for the officer to finish the last section of
the citation and send Miller on his way. There was also nothing
in Miller’s behavior throughout those eleven minutes that
suggested the officer’s safety was at risk. And in his own words,
the officer admitted that his only reason for requesting Miller’s
criminal history was to “gain suspicion,” not to confirm or dispel
a reasonable suspicion he had already formed or because, at the
tail end of the stop, he suddenly became reasonably concerned
about his safety. Because there was no officer safety or
reasonable suspicion justification, the criminal-history check was
“aimed at detecting evidence of ordinary criminal wrongdoing”
and “detour[ed]” from the stop’s mission. Rodriguez, 135 S. Ct. at1615‒16 (quotation simplified).
¶43 The State suggests that, because the criminal-history
check occurred simultaneously with the warrants check, it is
merely a matter of speculation as to how much time this
informational detour added to the stop. The majority accepts this
view, holding that there is no evidence “that a warrants check
would have been completed in less than sixty seconds.” Supra
¶ 29. But criminal-history checks are a “somewhat
time­consuming task[]” that “can easily add to the total length of
the stop,” and often “take longer to process than the usual
license and warrant requests.” LaFave, Search & Seizure § 9.3(c),
at 517 (quotation simplified). While the length of license and
warrant checks may also vary, these types of checks are typically
brief, especially given that most officers have computers
installed in their patrol cars that give them access to this type of
20170084-CA 23 2019 UT App 18State v. Miller
data “almost instantaneous[ly].” 11 Id. at 512‒13. See also id. at 508
n.155, 517. Cf. United States v. Sanders, 248 F. Supp. 3d 339, 342
(D. R.I. 2017) (officer testifying that the results for a license and
warrants check “came back almost instantaneously”) (quotation
simplified); State v. Martinez, 2017 UT 43, ¶ 21, 424 P.3d 83(officer testifying that it usually takes less than five seconds to
run a license and warrants check).
¶44 Even in this case, the officer testified that a criminal
record check can vary from one to eight minutes, but the length
depends on the time it takes a dispatcher to locate a driver’s
criminal history and parse through that information to find any
“pertinent” information that might be helpful to the officer. For
example, the officer testified that there was an instance where 47
pages of criminal history took dispatch “seven, eight minutes” to
go through. Here, it took dispatch over seven minutes to report
back to the officer with Miller’s criminal history. Suffice it to say,
a criminal-history check adds measurable time to a more routine
records check, and it is therefore unreasonable for an officer,
without any safety justification or reasonable suspicion of
criminal wrongdoing, to burden a stop for an exceedingly minor
traffic infraction with a time-consuming investigation of a
driver’s criminal history.
¶45 Seemingly, the officer had a hunch that Miller was
engaged in criminal wrongdoing and, as he testified, he was
therefore going “to spend more time on it.” “In assessing
whether a detention is too long in duration . . . we consider it
appropriate to examine whether the police diligently pursued a
means of investigation that was likely to confirm or dispel their
suspicions quickly, during which time it was necessary to detain
11. In reviewing the video recording, it appears that the officer
did run a license check, prior to requesting the Triple I check,
which “almost instantaneously” announced that Miller’s license
was valid.
20170084-CA 24 2019 UT App 18State v. Miller
the defendant.” United States v. Sharpe, 470 U.S. 675, 686 (1985)
(emphasis added). But nothing in the officer’s actions suggests
that he acted diligently to conclude the traffic stop. Rather, he
acknowledged that it is his practice to deliberately prolong stops
to “gain suspicion” on certain drivers, which includes requesting
criminal histories as a means to “gain suspicion.” He did so in
this case to buy additional time to conduct the dog sniff because
he had essentially finished the citation and had already
conducted the license check and, in fairness, Miller should then
have been sent on his way. Regardless of whether the warrants
check was simultaneous to the criminal-history check, there was
no purpose for requesting Miller’s criminal-history check, given
its timing so late in the stop, other than to extend the length of
the stop. See Rodriguez, 135 S. Ct. at 1615 (“An officer, in other
words, may conduct certain unrelated checks during an
otherwise lawful traffic stop. But . . . he may not do so in a way
that prolongs the stop, absent the reasonable suspicion
ordinarily demanded to justify detaining an individual.”). Here,
the officer was not reasonably diligent in concluding the purpose
for the traffic stop, and he detained Miller beyond what was
necessary for the completion of a singularly minor traffic offense.
¶46 I would reverse.
20170084-CA 25 2019 UT App 18