State v. Bui-Cornethan , 2021 UT App 56 ( 2021 )

2021 UT App 56THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TU FAN BUI-CORNETHAN,
Appellant.
Opinion
No. 20190208-CA
Filed May 27, 2021
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 181905704
Lori J. Seppi and Brady Smith, Attorneys
for Appellant
Sean D. Reyes and Nathan Jack, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 Acting on an informant’s tip of suspected drug activity,
police officers approached Tu Fan Bui-Cornethan and an
acquaintance (HT) in a darkened cul-de-sac and inquired about
their activities. In the ensuing twelve minutes, Bui 1 and HT were
separated and questioned, the men emptied their pockets, HT
was frisked, and the area was searched. By their own admission,
the officers found no evidence linking the men to illegal activity.
But before the officers left, one asked Bui if he had any weapons
1. Consistent with the parties’ briefing, we refer to the defendant
as Bui.
State v. Bui-Cornethan
on him. Bui denied that he was carrying, but when the officer
told Bui he was going to frisk him, Bui admitted to having a
handgun. Bui’s weapon was retrieved, and the State charged
him with, among other things, possession of a firearm by a
restricted person.
¶2 Bui moved to suppress the evidence, but the district court
denied the motion, concluding that Bui’s Fourth Amendment
rights were not implicated in what it deemed to be a consensual
encounter. We disagree with the district court and reverse. We
conclude that the motion to suppress should have been granted
because the encounter was a level two seizure that was
unlawfully extended when the officer inquired about the gun.
BACKGROUND 2
¶3 Late one evening in May 2018, Officer Allred spoke on the
telephone for ten to fifteen minutes with a citizen informant
regarding suspicious activity in a cul-de-sac near Irving Street.
After identifying himself and sharing his general address, the
informant described what he believed to be drug-related activity
in the neighborhood. The informant told Allred about a Hispanic
male with tattoos on his face, along with “maybe some other
individuals,” who loitered around a black wrought iron fence in
the area. The informant went on to explain that cars would pull
up, the tattooed male would have a short exchange through the
car windows, and then the vehicles would drive off. Based on
Allred’s training and experience, he believed the informant’s tip
described activity that was consistent with drug trafficking.
2. We recite the facts in detail because “the legal analysis of a
search and seizure case is highly fact dependent.” State v.
Hansen, 2002 UT 125, ¶ 5, 63 P.3d 650 (cleaned up).
20190208-CA 2 2021 UT App 56State v. Bui-Cornethan
¶4 Officer Allred and his trainee, Officer Shupe, proceeded
to the area described by the informant. There, at the end of a cul-
de-sac, the officers found a black iron fence, which was at the
edge of an apartment complex. The officers saw HT standing
near the fence and Bui sitting on a cement block. HT matched the
informant’s description: Hispanic with tattoos on his face. The
officers made a U-turn, parked facing the men, and shined their
squad car’s headlights and spotlight on Bui and HT. But they did
not turn on the car’s red and blue lights or siren.
¶5 With the fence to the men’s backs, the uniformed officers
approached to within five feet of the men, with Allred on their
right and Shupe on their left. Allred asked, “What’s going on
gentlemen?” explaining that they were “investigating” because
they “had some suspicious activity in this area.” HT said that he
was visiting his cousin who lived in a nearby apartment and that
he “likes to hang out” in the area because the apartment was hot.
During this questioning, a third officer, Officer Ruff, arrived at
the scene. Ruff parked his police vehicle, with his headlights on,
at the edge of the cul-de-sac. He then exited the car and stood
next to HT who was now sitting on the cement block.
¶6 As Ruff arrived, Allred motioned to Bui with his hand
and told him “to come over there and talk to [him] for a minute,
by [his] car.” Bui complied. Then, after asking Bui more
questions, Allred asked Bui to wait by the car while he searched
the area.
¶7 In his search, Allred found a discarded broken crack pipe
near the fence. 3 Finding no other evidence of a crime, Allred
returned to HT and asked, “Do you have anything on you?” HT
replied that he had only his cell phone. Allred then asked,
3. Officer Ruff opined that it is not unusual to find randomly
discarded drug paraphernalia in the area.
20190208-CA 3 2021 UT App 56State v. Bui-Cornethan
“Don’t care if I look do you?” HT answered, “No, go ahead bro.”
Next, Allred instructed HT to stand up and proceeded to frisk
him, but Allred found nothing. Allred asked HT one final time if
he had any drugs on him. HT denied having any drugs and even
turned out his pockets, showing Allred they were empty.
¶8 Allred then returned to Bui, who was still waiting in front
of the squad car, and asked, “What about you?” Bui responded,
“Sup bro?” And Allred clarified, “Got any drugs on you?” Bui
stated that he did not. Allred then said, “Care if I check?” In
response, Bui offered to empty his pockets and he revealed that
they were empty except for a wallet. Bui then opened the wallet
and showed its contents to Allred. It did not contain any drugs.
¶9 Allred told Bui that he and HT were in “a high crime
area” and that their presence “over in the corner” was
suspicious. Allred then pulled out a notepad and started taking
Bui’s information, including his name and where he lived.
Allred then returned to HT and asked him for his address and
whether he had been involved in a fight nearby earlier that
night. By now, a fourth officer (and a third squad car) had
arrived at the scene.
¶10 Officers remained “pretty close” to HT and Bui
throughout the investigation. But Allred felt that the situation
was fairly “low key” and that the two men “could easily have a
legitimate reason to be there.” Additionally, Allred did not
believe that he had reasonable suspicion to detain Bui even after
finding the broken crack pipe.
¶11 Finally, having found no drugs or evidence of a crime,
Allred approached Officer Ruff, who had returned to his squad
car. Ruff informed Allred that Bui was “one of our most
notorious gangsters” and that he was associated with “all kinds”
of gangs. Ruff also mentioned that Bui had been involved in
shootings in the past. The exchange between Officers Allred and
Ruff lasted about ninety seconds.
20190208-CA 4 2021 UT App 56State v. Bui-Cornethan
¶12 Nearly twelve minutes after arriving on the scene, Allred
returned to Bui and asked, “You don’t have any weapons on
you, do you?” Bui responded, “No sir.” Allred then instructed
Bui, “Let me check real quick.” Surrounded by all four officers,
Bui raised his hands and asked whether it was “required for
[them] to touch [him].” Allred responded, “I’m just going to pat
you down, make sure you don’t have any weapons,” and then
asked Bui again, “Do you have weapons on you?” This time, Bui
admitted to having a handgun in his waistband. The other
officers then handcuffed Bui while Allred located and removed
the gun from Bui’s waistband.
¶13 Bui was charged with theft by receiving stolen
property,4 possession of a firearm by a restricted person, and
carrying a concealed firearm without a permit. Bui pleaded
not guilty to the charges and filed a motion to suppress all
evidence obtained as a result of the search, claiming the stop
violated his Fourth Amendment rights. Bui argued that he was
detained within the meaning of the Fourth Amendment and
that his detention was not justified because the officers did not
have a reasonable, articulable suspicion that he had been or
was about to be engaged in criminal activity. Bui further argued,
in the alternative, that even if the officers were justified in
initially detaining him, they unlawfully extended the scope of
the stop.
¶14 After an evidentiary hearing, the district court denied
Bui’s motion to suppress, ruling that “[t]he interaction between
officers and [Bui] was a voluntary, level one encounter.” The
court also concluded, “[i]n the alternative,” that the “officers had
reasonable articulable suspicion to initiate a level two stop based
on the citizen tip” and that the “scope of the stop was not
4. The State alleged that the handgun found on Bui previously
had been reported as stolen.
20190208-CA 5 2021 UT App 56State v. Bui-Cornethan
unreasonably extended.” Bui then entered a conditional guilty
plea to possession of a firearm by a restricted person, reserving
his right to appeal the denial of his motion to suppress. 5 Bui was
sentenced to one to fifteen years at the Utah State Prison. He
now appeals.
ISSUE AND STANDARD OF REVIEW
¶15 Bui contends that the district court erred in denying his
motion to suppress evidence he contends was obtained in
violation of the Fourth Amendment. “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. We review
the court’s factual findings for clear error and its legal
conclusions for correctness, “including its application of law to
the facts of the case.” Id.; see also State v. Martinez, 2017 UT 43,
¶ 9, 424 P.3d 83 (explaining that in reviewing Fourth
Amendment questions, appellate courts afford “no deference to
the district court’s application of law to the underlying factual
findings”).
ANALYSIS
¶16 The Fourth Amendment to the United States Constitution
protects people “against unreasonable searches and seizures.”
U.S. Const. amend. IV. “This inestimable right of personal
security belongs as much to the citizen on the streets of our cities
as to the homeowner closeted in his study to dispose of his secret
affairs.” Terry v. Ohio, 392 U.S 1, 8–9 (1968).
5. As part of the plea agreement, the other two charges were
dismissed.
20190208-CA 6 2021 UT App 56State v. Bui-Cornethan
¶17 Utah courts recognize three different levels of
constitutionally permissible encounters between police officers
and citizens. State v. Alverez, 2006 UT 61, ¶ 10, 147 P.3d 425. A
level one encounter is a “consensual encounter,” which does not
implicate the Fourth Amendment. Id. (cleaned up); see also State
v. Adams, 2007 UT App 117, ¶ 10, 158 P.3d 1134. An officer may
approach an individual and ask questions, but “[a]s long as the
person . . . remains free to disregard the questions and walk
away, there has been no intrusion upon that person’s liberty or
privacy as would under the Constitution require some
particularized and objective justification.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.); see
also Adams, 2007 UT App 117, ¶ 10. On the other hand, a level
two encounter is a seizure within the meaning of the Fourth
Amendment. Alverez, 2006 UT 61, ¶ 10. It occurs “when the
officer, by means of physical force or show of authority has in
some way restrained the liberty of the person.” Adams, 2007 UT
App 117, ¶ 10 (cleaned up). To be constitutionally permissible,
an officer must have a “reasonable, articulable suspicion” that a
person has committed or is about to commit a crime before the
person can be detained. Alverez, 2006 UT 61, ¶¶ 10, 14 (cleaned
up). A level two “detention must be temporary and last no
longer than is necessary to effectuate the purpose of the stop.” Id.
¶ 10 (cleaned up). Finally, a level three encounter occurs when a
police officer arrests a suspect based on probable cause that an
offense has been or is being committed. Id.
¶18 Bui contends that his encounter with the police
officers was a level two encounter, requiring the officers to
have a reasonable, articulable suspicion that he had committed
or was about to commit a crime. He contends that the officers
lacked such suspicion and that his detention thus violated the
Fourth Amendment. Bui further contends that even if the
officers had reasonable suspicion to detain him, the detention
was unlawfully extended after that suspicion had been
dispelled.
20190208-CA 7 2021 UT App 56State v. Bui-Cornethan
¶19 In contrast, the State argues, and the district court
determined, that the encounter was a consensual, level one
encounter that did not trigger Fourth Amendment protections.
The State alternatively argues (and the court concluded) that the
officers had the requisite suspicion to detain Bui and that his
detention was not unreasonably extended.
¶20 We agree with Bui. As we explain below, we conclude
that Bui’s encounter with the officers was a level two
encounter that required reasonable suspicion to detain him.
We further conclude that even assuming the officers
had reasonable, articulable suspicion that Bui had committed
or was about to commit a drug-related offense, the officers
unreasonably extended the detention after that suspicion was
dispelled.
A
¶21 “A level one encounter becomes a level two stop when a
reasonable person, in view of all the circumstances, would
believe he or she is not free to leave,” Adams, 2007 UT App 117,
¶ 10 (cleaned up), or to “disregard questioning,” State v. Hansen,
2002 UT 125, ¶ 39, 63 P.3d 650. “This is true even if the purpose
of the stop is limited and the resulting detention brief.” Adams,
2007 UT App 117, ¶ 10 (cleaned up). “Circumstances
demonstrating that a level two stop is under way include the
presence of more than one officer, the display of an officer’s
weapon, physical touching of the person, or use of commanding
language or tone of voice.” Id.; see also Mendenhall, 446 U.S. at 554(opinion of Stewart, J.). Further, “the manner of questioning, the
content of the questions, and the context in which the questions
are being asked can convert mere questioning into a level two
seizure if, under all of the circumstances,” the questioning
demonstrates “a show of authority sufficient to restrain [a
person’s] freedom of movement.” Alverez, 2006 UT 61, ¶ 12
(cleaned up). With these principles in mind, and viewing the
20190208-CA 8 2021 UT App 56State v. Bui-Cornethan
circumstances in their totality, we conclude that Bui’s encounter
with the officers was a level two stop.
¶22 First, the presence of four armed and uniformed officers
constituted a show of authority that escalated the nature of the
detention. See Adams, 2007 UT App 117, ¶ 10 (stating that the
presence of more than one officer supports finding a level two
stop); State v. Merworth, 2006 UT App 489, ¶¶ 8–9, 153 P.3d 775(recognizing that a seizure may be found where there was “the
threatening presence of several officers”). The encounter began
with two officers and two suspects, but in less than two minutes,
a second police car appeared on the scene and a third officer
joined Officers Allred and Shupe. And just a few minutes after
that, another officer arrived in his squad car, bringing the total
officers to four, outnumbering Bui and HT two-to-one. The State
suggests that we should discount the number of officers by one
because Shupe was only a trainee and Allred required qualified
backup. But while we appreciate the officers’ need for safety, we
are tasked with viewing the circumstances from the objective
perspective of a reasonable suspect, not from the unarticulated
viewpoint of the officers. See Alverez, 2006 UT 61, ¶ 10; see also
Mendenhall, 446 U.S. at 554 n.6 (opinion of Stewart, J.) (“[T]he
subjective intention of [the officer] . . . is irrelevant except insofar
as that may have been conveyed to the [suspect].”). And Bui was
not told that Shupe was only a trainee, who “doesn’t count as a
backup officer.” Rather, from a reasonable person’s perspective,
three squad cars and four uniformed officers appearing on scene
within just a few minutes of one another would be viewed as a
show of authority. Thus, this fact weighs in favor of finding a
level two stop.
¶23 Second, the manner of the officers’ approach was
sufficiently confrontational that a reasonable person would view
it as a show of authority. When Allred and Shupe spotted Bui
and HT, they made a quick U-turn and parked directly in front
of the men, illuminating them with the cruiser’s headlights and
20190208-CA 9 2021 UT App 56State v. Bui-Cornethan
spotlight. Similarly, when the other two officers arrived, they too
left their headlights on in the cul-de-sac. The officers’ need to
illuminate a darkened cul-de-sac is understandable. And the use
of a spotlight, on its own, would not elevate a stop from a level
one to a level two. See State v. Justesen, 2002 UT App 165, ¶¶ 14–
16, 47 P.3d 936 (reversing a district court’s conclusion that an
officer’s “activation of his overhead lights alone was sufficient to
escalate the encounter to a level two stop”). But considering the
officers’ approach in its entirety, it supports the finding of a level
two encounter.
¶24 Third, the content of the questions and the context in
which they were asked also weigh in favor of finding a level two
stop. At the outset, we note that we see no error in the district
court’s finding that the officers did not use “commanding
language or tone of voice.” But the fact that the officers’ tone was
conversational does not mean the inquiries were not accusatory.
Allred asked Bui and HT what was “going on,” but did so in the
context of explaining that the officers were “investigating”
“suspicious activity in this area,” implying that Bui and HT may
be participants in criminal activity. Further, Allred directly
asked both Bui and HT if they were carrying drugs, invited both
men to empty their pockets, frisked HT, and told Bui that
because they were in a “high crime area” their presence “over in
the corner” was suspicious. While there is no “per se rule that
accusatory questioning will always create a level two
encounter,” Merworth, 2006 UT App 489, ¶ 12 (McHugh, J.,
concurring), a reasonable person may not feel free to walk away
under circumstances where an officer’s questioning and actions
plainly telegraph that the officer believes the individual is
presently engaged in the illegality the officers claim to be
investigating, see Alverez, 2006 UT 61, ¶ 12 (concluding that the
question, “Did you know your car is suspected as being
involved in drug dealing?” was “accusatory in nature” and
created a confrontational encounter demonstrating a show of
authority (cleaned up)); see also Hansen, 2002 UT 125, ¶ 45
20190208-CA 10 2021 UT App 56State v. Bui-Cornethan
(expressing doubt about “whether a reasonable person,” after
being asked about contraband, “would feel free to leave before
being issued a warning or citation, or at least being told he or she
could leave”).
¶25 This is especially true in this case, where Allred almost
immediately separated Bui and HT and sought to control Bui’s
movement throughout the encounter. When officers first arrived,
Bui was sitting on a concrete block with his back to the black
iron fence. Rather than question Bui in that location, Allred
directed Bui to move away from HT and to the front of the
illuminated police cruiser. While Allred did not aggressively
command Bui to move, his instruction—however stated—sought
control of Bui’s movement and suggested that he was not free to
go about his business as he had been doing before the officers
arrived. See State v. Alvey, 2007 UT App 161, ¶ 5 (finding a level
two stop because the officer directed the individual where to
stand and questioned him in front of the police cruiser’s
headlights); see also Commonwealth v. Jones, 378 A.2d 835, 840 (Pa.
1977) (finding the officer’s request that an individual be seated in
the car supported the conclusion that the individual was seized
within the meaning of the Fourth Amendment because, “while
stated as a question, it sought control of [the individual’s]
movement”). Similarly, Allred asked Bui to wait in front of the
police cruiser while Allred searched the area where Bui had been
sitting. Although phrased as a request, Allred’s statement
implied that he expected Bui not to leave until after Allred had
completed his search, particularly because other officers
remained close by when Allred stepped away. See Adams, 2007
UT App 117, ¶ 11 (explaining that a stop is more likely a level
two when the officer steps away from the suspect to perform
another task, such as a warrants check, and the suspect is
presumably supposed to wait for the officer to return).
¶26 In sum, we conclude that Bui’s encounter with the police
was a level two seizure within the meaning of the Fourth
20190208-CA 11 2021 UT App 56State v. Bui-Cornethan
Amendment. Four police officers in three squad cars descended
on Bui and HT in the dark of night to question them about their
“suspicious activity.” The officers maintained a respectful and
casual tone throughout, but their approach was confrontational,
Allred’s questions were accusatory, and the officers displayed
their authority by controlling Bui’s movements, including by
asking him to wait by a police car while they investigated
further. Considering the totality of these circumstances, a
reasonable person in Bui’s position would not have felt free to
walk away.
B
¶27 Because the encounter was a level two stop, the officers
needed to have reasonable, articulable suspicion for the stop to
survive scrutiny under the Fourth Amendment. See Alverez, 2006
UT 61, ¶ 10. The district court concluded that the informant’s tip
provided the officers with the requisite suspicion, and we
assume, without deciding, that the district court was correct.
¶28 But even if the officers had the requisite suspicion to
detain Bui, “officers must diligently pursue a means of
investigation that is likely to confirm or dispel their suspicions
quickly, and it is unlawful to continue the detention after
reasonable suspicion is dispelled.” State v. Chism, 2005 UT App
41, ¶ 12, 107 P.3d 706 (cleaned up). This means a stop that was
within the bounds of the Fourth Amendment may become
unlawful “by virtue of its intolerable intensity and scope” if the
search is not “strictly tied to and justified by the circumstances
which rendered its initiation permissible.” Terry v. Ohio, 392 U.S.
1, 18–19 (1968) (cleaned up). Once the initial purpose of the stop
has concluded, the person must be allowed to leave and any
further detention, without additional reasonable suspicion, is an
illegal seizure. State v. Hansen, 2002 UT 125, ¶ 31, 63 P.3d 650; see
also State v. Simons, 2013 UT 3, ¶ 35, 296 P.3d 721 (explaining that
the Fourth Amendment “allows for a de minimis extension at
20190208-CA 12 2021 UT App 56State v. Bui-Cornethan
any point before the conclusion of an otherwise lawful
detention,” but that once the purpose of the detention has
concluded, further questioning without new reasonable
suspicion is unlawful (emphasis added)); State v. Baker, 2010 UT
18, ¶ 28, 229 P.3d 650 (“Even a small intrusion beyond the
legitimate scope of an initially lawful search is unlawful under
the Fourth Amendment.” (cleaned up)).
¶29 Bui argues that the stop was unlawfully extended because
its purpose—to investigate suspected drug activity—had
concluded before Allred inquired about weapons. Bui asserts
that he should have been allowed to leave once there was no
longer any reasonable suspicion that he was involved in the
suspected illegal drug activity and that Allred’s inquiries about
having weapons on his person unlawfully prolonged the stop.
The State disagrees. It contends that the stop was not unlawfully
extended and that Allred’s questions about weapons did not go
beyond the stop’s original scope because Allred’s exchange with
Officer Ruff was “[t]o further investigate the reported drug
activity.”
¶30 It can be difficult to discern the exact moment when
reasonable suspicion has been dispelled and the purpose of a
stop has concluded. See, e.g., Simons, 2013 UT 3, ¶ 50 (Lee, J.,
concurring) (stating that the “line designating the formal
conclusion of a stop for Fourth Amendment purposes” may be
“fuzzy” and difficult “to referee”). But based on the record
before us, we agree with Bui that before Allred asked about
weapons, the purpose for the detention had concluded because
Allred had dispelled whatever reasonable suspicion he had that
Bui had committed or was about to commit a drug-related
offense.
¶31 Based on the informant’s tip, Allred suspected that Bui
was engaged in street-level drug trafficking. Thus, the purpose
of the stop was to investigate that suspicion. To confirm or
20190208-CA 13 2021 UT App 56State v. Bui-Cornethan
dispel it, Allred asked Bui for his name and address and
questioned him about what he was doing in the area. Allred also
searched the area for evidence of a drug-related crime and found
only a discarded crack pipe, which was not unusual for the area
and which he did not consider to be Bui’s. Allred also asked Bui
if he had any drugs on him, and when Bui said no, Allred had
Bui empty his pockets and even examined the contents of Bui’s
wallet to confirm that he did not have any drugs on his person.
Each of these actions was reasonably likely to dispel whether Bui
had been or was about to be involved in a drug-related crime.
Indeed, Allred testified that he did not believe he had reasonable
suspicion to detain Bui.
¶32 At that point, Bui should have been “allowed to depart.”
See Hansen, 2002 UT 125, ¶ 31. But rather than allow Bui to go
about his business, Allred left Bui’s side to speak with Ruff. Ruff
then explained that he knew Bui from past experience and that
Bui had been involved in gang activity and had been known to
carry firearms. The State contends that this exchange of
information was in furtherance of Allred’s investigation into the
reported drug activity. But the State’s claim is purely
speculative. Allred testified that after questioning Bui, searching
the area, and having Bui empty his pockets, he lacked reasonable
suspicion to detain Bui. Yet he continued the investigation
without explaining how making additional inquiry of Ruff, who
had been called in for backup, was reasonably related to
dispelling or resolving his original suspicion. See Rodriguez v.
United States, 575 U.S. 348, 356 (2015) (“On-scene investigation
into other crimes, however, detours from [the stop’s] mission.”).
And without a reasonable basis to prolong the investigation by
speaking to Ruff, the further detention of Bui and the subsequent
weapons search and arrest were unlawful. See Chism, 2005 UT
App 41, ¶ 22 (“With no continuing reasonable suspicion, [the
officer’s] detention of [the suspect] to further investigate the
validity of his identification, and the resulting arrest and search,
were all unlawful.”); see also Hansen, 2002 UT 125, ¶ 32
20190208-CA 14 2021 UT App 56State v. Bui-Cornethan
(concluding that questioning a driver about alcohol, drugs, and
weapons in his vehicle unlawfully extended the traffic stop
where the officer had already verified the driver’s license and
registration and completed his computer check); State v.
Bissegger, 2003 UT App 256, ¶¶ 19–20, 76 P.3d 178 (concluding
that the suspect’s successful completion of a field sobriety test
dispelled suspicion that he was driving under the influence and
thus the officer’s subsequent request to search the car was
unlawful). 6
¶33 In summary, “[i]f football is a game of inches, Fourth
Amendment jurisprudence can be a matter of seconds.” State v.
Adams, 2007 UT App 117, ¶ 19, 158 P.3d 1134 (Orme, J.,
dissenting). Although Allred’s inquiry of Ruff lasted only ninety
seconds, it unlawfully extended the scope of Bui’s detention
because there is no evidence that it was reasonably related to the
6. The State argues that Chism and Hansen are not comparable
because “[n]either case involved a reasonable suspicion of drug
activity—something not so easily verifiable with a driver’s
license or easily resolved through issuing a citation.” We
acknowledge that reasonable suspicion of drug activity may
generally be more difficult to dispel than suspicion of a traffic
violation or underage tobacco possession. But that does not
change the fact that there is an absence of record support for the
State’s assertion that Allred’s inquiries of Ruff were reasonably
related to the informant’s tip. Because there is no evidence that
Allred asked Ruff questions relating to the drug dealing
allegations, we are in no position to simply assume that Allred’s
inquiries of Ruff were reasonably related to dispelling the
suspicion that gave rise to the stop. See State v. Chism, 2005 UT
App 41, ¶ 15, 107 P.3d 706 (stating that to be permissible under
the Fourth Amendment, investigative acts that prolong a
detention must be “reasonably related to dispelling or resolving
the articulated grounds for the stop” (cleaned up)).
20190208-CA 15 2021 UT App 56State v. Bui-Cornethan
purpose of the stop. Allred and the other officers detained Bui
based on an informant’s tip of street-level drug trafficking near
Irving Street. Allred efficiently dispelled that suspicion by
questioning Bui, searching the area, and having Bui empty his
pockets. After suspicion was dispelled, Allred continued
investigating Bui without new reasonable, articulable suspicion.
Thus, Bui’s continued detention and the officers’ resulting search
was unlawful, and the evidence obtained should have been
suppressed. See Terry, 392 U.S. at 29 (“[E]vidence may not be
introduced if it was discovered by means of a seizure and search
which were not reasonably related in scope to the justification
for their initiation.”).
CONCLUSION
¶34 The encounter between Bui and the officers was a level
two stop because, in view of all the circumstances, a reasonable
person would not have felt free to disregard the officers’
questioning and walk away. And assuming the officers had
reasonable, articulable suspicion to initially detain Bui for
suspected drug activity, Allred’s exchange with Ruff about
weapons unlawfully extended the stop because it occurred after
that suspicion had been dispelled. We therefore reverse the
district court’s order denying Bui’s suppression motion and
remand to the district court to allow Bui to withdraw his guilty
plea and for such other proceedings as may now be appropriate.
20190208-CA 16 2021 UT App 56