author: ORME, Judge.

text:
    2003 UT App 101
    STATE of Utah, Plaintiff and Appellee, v. Robin M. LAFOND, Defendant and Appellant.
    No. 20010970-CA.
    Court of Appeals of Utah.
    April 3, 2003.

      Happy Morgan, Grand County Public Defender, Moab, and Kristine M. Rogers, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, and Joanne C. Slotnik, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges JACKSON, GREENWOOD, and ORME.
   AMENDED OPINION

ORME, Judge.

T1 Robin M. Lafond appeals her convietion of illegal possession of a controlled substance in violation of Utah Code Ann. § 58-3T-8@)(a)(i) (1998). Lafond contends that because the investigating officer had no reasonable suspicion to justify the frisk and resulting search of her person, the district court erroneously denied her motion to suppress. We agree and reverse.

BACKGROUND

T2 "Because a determination of the reasonableness of ... police conduct is highly factual in nature, we review the facts in detail." State v. Trujillo, 739 P.2d 85, 86 (Utah Ct.App.1987). On March 23, 2001, at approximately 9:45 pm., Utah Highway Patrolman Steve Salis observed a vehicle traveling east on Interstate 70. Officer Salis determined by radar that the car was traveling at the rate of four miles per hour over the speed limit, and as the car passed him he also noticed that the license plate light was not working. Officer Salis conducted a traffic stop, approached the vehicle on the driver's side, and asked the driver for his driver's license, vehicle registration, and proof of insurance. The driver told Officer Salis that he did not have a driver's license but that he did have an identification card. At this time, Lafond, the passenger in the vehicle, interjected that the vehicle was hers and that she was not driving because she was tired.

13 When Officer Salis asked the driver why he did not have a Utah driver's license, the driver explained that his license was previously suspended for a DUI, and that he was eligible to reapply for a license but had not yet done so. During his questioning of the driver, Officer Salis noticed that the driver was holding a large "refill" eup and that there was a Crown Royal bag on the front seat that appeared to have something in it. Officer Salis then informed the two that he had stopped them for speeding and for a defective license plate light and asked La-fond to produce the vehicle registration.

T4 In response to this request, Lafond looked on the front seat and floorboard, retrieved a small leather coin purse and placed it between her legs, and then began searching through the glove compartment. Officer Salis, who was shining a flashlight in the direction of the glove box, noticed a cup holder on the console containing small green particles that he believed were marijuana. Officer Salis did not detect any odor of alcohol or marijuana, and the driver did not seem impaired.

T5 In the meantime, Lafond had located the registration, which indicated the car was properly registered to her, and handed it to Officer Salis. Officer Salis then asked La-fond to produce proof of insurance, and La-fond resumed her search through the glove box. She was "moving very fast" and seemed nervous to Officer Salis. Officer Sal-is then asked the subjects if there was anything illegal in the vehicle. Lafond stated that there was not. Officer Salis asked if Lafond had any weapons or alcohol in the vehicle, and Lafond stated she did not. Officer Salis asked Lafond if she had any mariJuana in the vehicle, and she said she did not. Officer Salis then asked Lafond if anyone had smoked marijuana in the vehicle lately, and Lafond stated she did not think so, but was not sure, as she had just retrieved the car that morning after loaning it to a friend for about a week.

T6 Officer Salis then obtained permission from Lafond to search the vehicle and asked her to step outside. Before doing so, Lafond retrieved a pack of cigarettes and the coin purse that she had previously placed between her legs, as well as another small purse from the front seat. With these items, Lafond exited the vehicle. Onee outside, Officer Sal-is instructed Lafond to sit down near the front of the vehicle, and as she was walking to that location, he noticed Lafond put her hands in her front pockets. Lafond was wearing two layers of clothing, including large camouflage pants and a large sweater. He noticed her pockets were bulging and asked Lafond what she had put in her pockets. Lafond denied placing anything in them. Officer Salis then instructed Lafond to remove the bag she had placed in her pocket. Lafond retrieved the purse from her left front pants pocket and placed it on the hood of the car. Officer Salis, noticing the bulge in the right front pants pocket, instructed Lafond to remove the other bag from that pocket. Lafond denied having anything in that pocket and turned away from Officer Salis.

T7 As Officer Salis approached Lafond, reaching for her right pocket, Lafond pulled out the leather coin purse and dropped it on the ground. Officer Salis picked up the purse and asked Lafond what it was. La-fond replied that she "dofes] leather work." Officer Salis interpreted this response and Lafond's behavior as nervous and evasive, although he did not perceive Lafond's demeanor as hostile or threatening. Officer Salis then instructed Lafond to stand and face away from him. Lafond complied, and Officer Salis patted down the exterior of her right front pocket. While doing so, Officer Salis felt what he believed to be a pipe and asked Lafond to remove the object from her pocket. Lafond refused, and Officer Salis put his hand into her pocket and pulled out a small torch, a glass pipe, and a small glass jar containing what was later determined to be methamphetamine. Officer Salis then searched Lafond and made her empty her pockets. Officer Salis told the driver to get out of the car and searched him as well. Officer Salis then handcuffed the driver and Lafond and conducted a search of the vehicle, which revealed no additional contraband.

18 Lafond was subsequently arrested and charged with possession of methamphetamine. She pleaded not guilty and moved to suppress the evidence seized by Officer Salis. After the district court denied her motion to suppress, Lafond changed her plea to guilty, reserving the right to appeal from the denial of her motion to suppress. See generally State v. Sery, 758 P.2d 935, 939 (Utah Ct.App.1988) (authorizing conditional pleas).

ISSUES AND STANDARD OF REVIEW

T 9 On appeal, Lafond argues that (1) Officer Salis's questions regarding weapons and illegal drugs exceeded the seope of the original traffic stop; (2) Officer Salis searched her absent probable cause or exigent cireum-stances; and (8) even if Officer Salis's conduct amounted only to a Terry frisk for weapons, the frisk was not justified by reasonable suspicion.

10 "[Flactual findings underlying a trial court's decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroncous standard[.]" State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996), cert denied, 916 P.2d 909 (Utah 1996). "[Wlhether a particular set of facts gives rise to reasonable suspicion is a question of law, which is reviewed for correctness." State v. Chapman, 921 P.2d 446, 450 (Utah 1996). "The legal standard for reasonable suspicion, however, 'is highly fact dependent,' " id. (citation omitted), and therefore we accord "a measure of discretion ... to the [district court's] application of the legal standard to the facts." Moreno, 910 P.2d at 1247.

ANALYSIS

1 11 "The Fourth Amendment of the United States Constitution guarantees the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." " State v. Lopez, 873 P.2d 1127, 1131 (Utah 1994) (quoting U.S. Const. amend. IV). The parties agree that "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth] Amendment[ ], even [if] the purpose of the stop is limited and the resulting detention quite brief" Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Accord State v. Patefield, 927 P.2d 655, 659 (Utah Ct.App.1996) ("[There is no question that [defendant] was seized by [the officer's] traffic stop."). However, " 'what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures." " Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968) (quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960)). Accord State v. Chapman, 921 P.2d 446, 450 (Utah 1996).

{12 "[In determining whether the seizure and search were 'unreasonable/ " we ask, first, "whether the officer's action was justified at its inception" and, second, "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879. Accord State v. O'Brien, 959 P.2d 647, 649 (Utah Ct.App.1998). La-fond does not argue that Officer Salis's stop of her vehicle-ostensibly for speeding and an unlighted license plate-was unjustified. See, e.g., Patefield, 927 P.2d at 657 (holding that officer's stop for "having a burned-out license plate bulb" was "justified at its inception" under Terry ); State v. Sepulveda, 842 P.2d 913, 917 (Utah Ct.App.1992) ("A police officer may legally stop a vehicle incident to a traffic offense."). Therefore, we consider only the second prong of Terry-whether Officer Salis's questioning and subsequent search of Lafond unconstitutionally exceeded the seope of the original stop.

I. The Questioning

118 Lafond argues that given the purpose of the traffic stop, Officer Salis had no basis for asking extraneous questions, including questions about weapons and illegal drugs. Indeed, the law is well settled that "Lolnce a traffic stop is made, the detention 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " State v. Lopes, 873 P.2d 1127, 1132 (Utah 1994) (quoting Florida v. Royer, 460 U.S. 491, 500, 108 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1988)). Furthermore, "[the scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1652, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring)). Accord State v. Johnson, 805 P.2d 761, 763 (Utah 1991).

This means that

an officer conducting a routine traffic stop may request a driver's license and vehicle registration, conduct a computer check, and issue a citation. However, onee the driver has produced a valid driver's license and evidence of entitlement to use the vehicle, "he must be allowed to proceed on his way, without being subjected to further delay by po-Hice for additional questioning."
Investigative questioning that further detains the driver must be supported by reasonable suspicion of more serious erimi-nal activity. Reasonable suspicion means suspicion based on specific, articulable facts drawn from the totality of the cireum-stances facing the officer at the time of the stop.

Lopez, 873 P.2d at 1132 (quoting State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990)) (other citations omitted).

114 Moreover, even if "reasonable suspicion of more serious criminal activity does arise, the scope of the stop is still limited. The officers must ' "diligently [pursue] a means of investigation that [is] likely to confirm or dispel their suspicions quickly, during which time it [is] necessary to detain the defendant." ' " Id. (quoting State v. (Grovier, 808 P.2d 133, 136 (Utah Ct.App.1991) (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985))) (alterations in original).

115 After Officer Salis asked the driver for his license, vehicle registration, and proof of insurance, his suspicions were aroused by the following facts: (1) the driver admitted that his lHeense was previously suspended for a DUI; (2) the driver was holding a large refill cup; (8) there was a purple Crown Royal bag on the front seat that appeared to have something in it; (4) when asked to locate the vehicle registration, La-fond looked on the front seat and floorboard, retrieved a small leather coin purse and placed it on the seat between her legs; and (5) there was a cup holder on the console containing small green particles that looked like marijuana.

T16 We think that these cireum-stances, taken together, constitute "specific, articulable facts" sufficient to warrant "reasonable suspicion of more serious criminal activity," id., specifically, on-the-road consumption of alcohol and marijuana. In light of this reasonable suspicion, Officer Salis was justified in asking Lafond whether there was anything illegal in the vehicle, whether there was any alcohol or marijuana in the vehicle, and whether anyone had smoked marijuana in the vehicle lately. These questions, in and of themselves, were closely tied to Officer Salis's observations and suspicions and did not unconstitutionally prolong Lafond's detention. See State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989) ("An investigative detention is justified if a police officer has a reasonable and articulable suspicion that the automobile's occupants are 'involved in criminal activity' ") (quoting United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985)). We therefore turn our attention to whether the subsequent frisk and search of Lafond were constitutionally justified.

II. The Search

T17 Lafond argues that Officer Salis searched her without probable cause or exigent cireumstances. In the alternative, Lafond contends that even if Officer Salis's conduct amounted only to a Terry frisk, the frisk was nevertheless conducted without reasonable suspicion that she was armed and dangerous.

118 We first determine whether Officer Salis was constitutionally justified in frisking Lafond. The legality of a frisk for weapons, absent probable cause, is governed by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny.

In Terry, the Supreme Court established a narrowly drawn exception to the Fourth Amendment requirement that police obtain a warrant for all searches. Where a police officer validly stops an individual for investigatory or other purposes and reasonably believes that the individual may be armed and dangerous, the officer may conduct a "frisk" or "pat-down" search of the individual to discover weapons that might be used against him.

State v. Carter, 707 P.2d 656, 659 (Utah 1985). While it is not necessary that an officer "actually have been in fear," id., the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880. Accord Carter, 707 P.2d at 659 ("A mere unparticularized suspicion or hunch is not sufficient.").

{19 This court recently explained that "ItJwo basic scenarios may warrant a Terry frisk." State v. Warren, 2001 UT App 346,¶ 15, 37 P.3d 270, cert. granted, 2002 Utah LEXIS 152.

In the first, facts and cireumstances unique to the particular suspect and/or factual context may give rise to a reasonable suspicion the suspect may be armed, such as a suspect with a bulge in his clothing that appears to be a weapon or a suspect who is hesitant in denying that he is armed and aggressively approaches the officer immediately upon being stopped. In the second scenario ... the inherent nature of the crime being investigated [may] lead[ ] to the reasonable suspicion that the suspect may be armed.... Crimes that, by their nature, suggest the presence of weapons include: "robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics.... But for other types of crimes, such as trafficking in small quantities of narcotics, possession of marijuana, illegal possession of liquor, ... driving under the influence and lesser traffic offenses ..." there must be particular facts which lead the officer to believe that a suspect is armed.

Id. (quoting 4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 255-56 (3d ed.1996)) (citations omitted). See Carter, 707 P.2d at 660 ("[A] police officer may lawfully frisk a burglary suspect [because] 'it is reasonable ... to believe that a burglar may be armed with weapons ... and that a pat-down search is necessary for the officer's safety' ") (citation omitted).

120 The State does not argue that the frisk of Lafond can be justified under the second scenario, i.e., that the inherent nature of the crimes being investigated in this cage-illegal consumption of alcohol and possession of drugs-automatically provides the requisite reasonable suspicion that Lafond was armed and dangerous. See State v. White, 856 P.2d 656, 664-66 (Utah Ct.App.1993) (holding that officer's suspicion of cocaine use did not justify immediate frisk of defendant because that crime is not inherently violent). Rather, the State contends that facts and circumstances unique to Officer Salis's encounter with Lafond gave rise to a reasonable belief that Lafond was armed with weapons that may be used against him. Specifically, the State relies upon the following testimony from Officer Salis:

Well, she had removed two bags from the vehicle before exiting the vehicle. As she was walking towards me, she had both hands in her pockets. She was wearing two layers of clothes. She was wearing a large pair of camouflage pants over other clothing. She, also, had a large sweater on. And as she's walking towards me, after she removes her hands from her pockets, I could see both of her pockets are buiging, and she's also very nervous and very evasive, [and] doesn't want to come into contact with me.

We have previously held that because nervous behavior, such as "avoidance of eye contact, is consistent with innocent as well as criminal behavior," such conduct "can be afforded no weight in determining a detaining officer's reasonable suspicion of criminal activity." State v. Robinson, 797 P.2d 431, 436 (Utah Ct.App.1990). We are likewise relue-tant to assign any particular importance to nervous conduct when determining reasonable suspicion in the context of a Terry frisk for weapons, at least, as in this case, when the nervousness is unaccompanied by any hostile, threatening, or aggressive behavior. Although "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop," Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997), it is not difficult to understand why such an experience would make a person nervous.

{21 Absent Lafond's nervous and evasive behavior, the State's justifications, derived from Officer Salis's testimony, essentially boil down to these: (1) Lafond removed two small purses from the vehicle, (2) her pockets were bulging, and (8) she wore baggy, layered clothing. We conclude that these circumstances, taken together, do not constitute "specific and articulable facts" such that "a reasonably prudent man ... would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 21, 27, 88 S.Ct. at 1880, 1888. Although Officer Salis hypothesized that "there could have been weapons in the bags which [La-fond] removed from the vehicle," we are unpersuaded by such a statement absent additional facts. See People v. Dickey, 21 Cal.App.4th 952, 27 Cal.Rptr.2d 44, 46 (1994) (holding officer's testiniony that he performed a patdown search because suspect " 'potentially may have been armed ... add[ed] nothing" to the reasonable suspicion determination because "[iln every encounter with a citizen by the police, the citizen may potentially be armed").

22 Indeed, the facts of record are to the contrary. Officer Salis did not testify that there were any suspicious or distinctive bulges in the bags as he observed them in the car, nor did he testify that the size and/or shape of the bags were consistent with even the possibility that they contained weapons. In fact, Officer Salis's testimony, at least as to one of the bags, suggests the opposite, for he described it as "a small coin purse or cigarette purse." As to the other bag, Officer Salis described it as "a small purse-like . or some type of bag." The fact that these bags were pliable enough to be stuffed into Lafond's front pants pockets, as well as the fact that the bags were later determined to be empty, belie any inference that the bags would have looked as though they might well contain weapons.

123 As to the bulging pockets, they likely should not be viewed as any more suspicious than the bags themselves. Once Lafond had exited the vehicle, Officer Salis instructed her to "remove the bag" from her pocket, which indicates that he watched her transfer the bags from the front seat to her pockets as she moved from the vehicle to a position in front of it, as Officer Salis directed. If these particular pocket bulges were created under Officer Salis's watchful eye, this case is in a much simpler posture than the more common scenario in which an officer encounters a suspect with bulging pockets, the contents of which are completely unknown.

1 24 But even if Officer Salis was completely ignorant of the contents of Lafond's pockets, or if the bulges were of a configuration not fully explainable by the bags, he did not testify that the bulges were in any way suspicious or otherwise characteristic of pockets that contained weapons. Wallets, billfolds, keys, handkerchiefs, eyeglass cases, and a host of other common and innocuous items create bulges in pockets. Pockets were made to carry things, and we reject the proposition that an officer may conduct a Terry frisk merely because he observes that a pocket has something in it. See People v. Howard, 147 A.D.2d 177, 542 N.Y.S.2d 536, 539 (1989) ("This court has frequently held that the mere observation of an undefinable bulge in a person's pocket is insufficient as a basis for a frisk or search ... [because uJn-like a waistband bulge which is a telltale of a weapon, a pocket bulge could be caused by any number of innocuous objects.") (citations omitted), appeal dismissed, 74 N.Y.2d 943, 550 NY.S.2d 275, 549 N.E.2d 477 (1989); Stanley v. Commonwealth, 16 Va.App. 873, 433 S.E.2d 512, 515 (1998) ("An officer may not, simply by observing some item causing a 'bulge' in one's clothing, conduct a general frisk where the nature of the bulge or the surrounding cireumstances do not reasonably support the conclusion that ... the person is armed and dangerous."). Cf. People v. Miles, 196 Cal.App.3d 612, 242 Cal.Rptr. 107, 110 (1987) (holding that officer had reasonable suspicion to conduct patdown search 6 when he saw 'an exaggerated bulge in defendant's left jacket pocket and that .... [blecause of the bulge and the manner in which the jacket swung, the officer 'knew it was some type of heavy object, possibly a gun' "); People v. May, 33 Cal.App.3d 888, 109 Cal.Rptr. 396, 397-98 (1973) (holding weapons search was justified when "[dJefen-dant had a bulge in his right rear pants' pocket," the bulge was consistent with that made by a handgun, and the officer "concluded that ... the object [may be} a handgun"); Byrd v. United States, 579 A.2d 725, 729 (D.C.1990) ("[PJolice had reasonable grounds to order [defendant] out of car and to frisk him upon seeing a bulge in [defendant's] pocket that was thought by the police officer possibly to be a gun."); State v. Schneider, 389 N.W.2d 604, 604-05 (N.D.1986) (holding Terry frisk was justified when officer, while issuing traffic ticket, "noticed a bulge under [defendant's] leather coat that appeared to be a revolver in a shoulder holster"); Commonwealth v. Wascom, 236 Pa.Super. 157, 344 A.2d 630, 631-32 (1975) (holding frisk was lawful when "the officer noticed what appeared to be a knife protruding from the [defendant's] coat pocket").

25 The State does not cite any authority to suggest that an otherwise innocuous-looking pocket bulge may constitute the basis for a Terry frisk. For example, in State v. Carter, 707 P.2d 656 (Utah 1985), a case relied upon by the State, the Court upheld the legality of a Terry frisk based in part on the fact that "the defendant had a large bulge in his front pocket," but more importantly, because the defendant was suspected of being involved in a burglary, which, as we have stated, is one of the crimes that, by its very nature, is likely to involve a weapon. Id. at 660. Similarly, in State v. Rochell, 850 P.2d 480 (Utah Ct.App.1993), we upheld a Terry frisk in part because (1) "[the defendant] had a bulge in his pocket;" (2) "the officer believed the bulge could have been a weapon;" and (3) "when asked whether he had any weapons, [the defendant] 'was hesitant in answering no.' " Id. at 483 (footnote omitted). And while we have stated that reasonable suspicion may be generated by "a suspect with a bulge in his clothing that appears to be a weapon," Warren, 2001 UT App 346 at ¶ 15, 37 P.3d 270 (emphasis added), we have not extended this rationale to include amorphous bulges that are not suspicious or in any other way characteristic of bulges created by weapons. Indeed, such a holding would effectively validate the use of an "un-particularized suspicion or hunch" to justify the physical intrusion of a weapons pat-down, a practice that Terry forbids. Carter, 707 P.2d at 659.

26 We are similarly unpersuaded by the State's argument that Lafond's layered clothing contributed to a reasonable suspicion that she was armed. We see nothing particularly unusual about such dress given the fact that the incident occurred in March at approximately ten o'clock in the evening. See White, 856 P.2d at 658, 661 (holding that possibility "defendant's heavy coat could be concealing weapons" was insufficient to justify frisk).

1 27 Because we hold that Officer Salis had no reasonable suspicion that Lafond was armed and dangerous so as to justify a Terry frisk, it necessarily follows that he had no probable cause to justify an outright search of Lafond. Our holding also forecloses the State's argument that the search of Lafond can be justified under the "plain feel" doe-trine. That doctrine requires that the officer is lawfully in a position to feel the contraband, see Minnesota v. Dickerson, 508 U.S. 366, 879, 113 S.Ct. 2130, 2139, 124 L.Ed.2d 334 (1993), and, as we have concluded, in this case Officer Salis simply had no right " 'to touch the person questioned." " Terry, 392 U.S. at 11 n. 5, 88 S.Ct. at 1874 n. 5 (citation omitted). See also Ybarra v. Illinois, 444 U.S. 85, 93 n. 5, 100 S.Ct. 338, 343 n. 5, 62 L.Ed.2d 238 (1979) ("Since we conclude that the initial patdown of [defendant] was not justified under the Fourth and Fourteenth Amendments, we need not decide whether or not the presence on [defendant's] person of 'a cigarette pack with objects in it' yielded probable cause to believe that [defendant] was carrying any illegal substance.").

CONCLUSION

[ 28 Even if Officer Salis's questioning beyond what was necessary for the traffic stop was proper, and even if Lafond's consent to search the vehicle was untainted by any improper prolonging of the detention, the pat-down and search of Lafond's person was illegal under the Fourth Amendment. Given the inherent nature of the crimes being investigated, and in the absence of reasonable suspicion suggesting the presence of weapons, there simply was no occasion to frisk Lafond. The district court's denial of the motion to suppress is reversed, and the case is remanded for such further proceedings as may now be appropriate.

1 29 WE CONCUR: NORMAN H. JACKSON, Presiding Judge, PAMELA T. GREENWOOD, Judge.

      . This Amended Opinion replaces the court's original Opinion in Case No. 20010970-CA, issued February 21, 2003.

      . Officer Salis was working a "DUI shift," which, according to the officer, is a "five-hour slot[ ]" where the officer is "specifically looking for impaired drivers." The officer must patrol between 9:00 p.m. and 2:00 a.m. and stop at least ten vehicles.

      . Officer Salis testified that he routinely stops vehicles that are traveling four miles per hour over the speed limit, although he was not planning to issue a speeding ticket in this particular instance.

      . Crown Royal is a Canadian whiskey. It is typically sold in a distinctive purple velvet bag equipped with gold-colored drawstrings. The Crown Royal bag spotted by Officer Salis was ultimately determined to contain nothing illegal.

      . On cross-examination of Officer Salis, Lafond's counsel asked, "Is it your belief today that if we were to test [the particles] that [they] would turn out to be marijuana?" Officer Salis responded: 'I'm not sure. There's just a very small amount. I mean ... I would not say one way or another if it is or not." Lafond interprets Officer Salis's response as evidence that he was vacillating on whether or not the particles appeared to him to be marijuana. Therefore, Lafond attacks the district court's finding that [there were green particles in the ashtray that the officer thought might be marijuana." We find no merit in this argument. Officer Salis consistently testified that, at the time, he "believed {[the particles] were marijuana" and that they "appeared to be marijuana." Whether the particles actually were marijuana is a separate question. Because the particles were never tested, it is now impossible to know, and Officer Salis's response that he "would not say one way or another"" if the particles actually were marijuana does not detract from his testimony that the particles appeared to be marijuana.

      . Neither of the bags retrieved from Lafond's pockets contained any contraband, but it is unclear when Officer Salis determined this.

      . Lafond also argues that three of the district court's factual findings are clearly erroneous. We find no merit in these arguments, and in light of our disposition, we decline to address them further. See State v. Allen, 839 P.2d 291, 303 (Utah 1992) ("In accord with the established principles of review applicable to all cases ... [courts need not] analyze and address in writing every issue or claim raised.").

      . We put little stock in the additional facts that Lafond was "moving very fast" and "appeared very nervous." ""Mere furtive gestures of an occupant of an automobile do not give rise to an articulable suspicion suggesting criminal activity." State v. Schlosser, 774 P.2d 1132, 1137 (Utah 1989). See also State v. Lovegren, 829 P.2d 155, 158 (Utah Ct.App.1992) ("[Nlervous behavior when confronted by a police officer does not give rise to a reasonable suspicion of criminal activity."); State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct.App.1992) ("The fact that defendants were nervous does not raise a reasonable suspicion of criminal activity."). For example, "turning to the left and to the right, appearing fidgety, bending forward, and turning to look at the officer, do not, without more, show a reasonable possibility that criminal conduct had occurred or was about to occur." Schlosser, 774 P.2d at 1138. "When confronted with a traffic stop, it is not uncommon for drivers and passengers alike to be nervous and excited...." Id.

      . The specific question about weapons is on a different footing, as nothing in Officer Salis's observations suggested the presence of firearms. The State refers us to United States v. Holt, 264 F.3d 1215 (10th Cir.2001), in which the court concluded that "an officer conducting a traffic stop may ask the driver about the presence of loaded weapons [even] in the absence of particularized suspicion of the existence of such firearms." Id. at 1217. We need not reach this issue. Even assuming the question about weapons was proper and did not unconstitutionally prolong Lafond's detention, the subsequent frisk and search were unconstitutional, necessitating reversal, as explained in section IL

      . The Terry holding has been codified in Utah Code Ann. § 77-7-16 (1999), which states: "A peace officer who has stopped a person temporarily for questioning may frisk the person for a dangerous weapon if he reasonably believes he or any other person is in danger." Id. "[This] section must be interpreted to meet the constitutional requirements of Terry v. Ohio [.]" State v. Roybal, 716 P.2d 291, 292 (Utah 1986).

      . We note that in this case, Officer Salis asked Lafond to step out of the vehicle after she consented to a search of her car. Lafond does not argue that her consent was invalid and, therefore, we do not consider that issue.

      . Lafond argues that Officer Salis's conduct exceeded a frisk and constituted a search from the outset, requiring probable cause and not the lesser reasonable suspicion, because before he effected the pat-down, "he required her to identify and produce the contents of her pockets." Although we resolve this case on the narrower ground that Officer Salis acted without reasonable suspicion that Lafond was armed or dangerous, there is ample authority to support the proposition that requiring a suspect to disclose the contents of his or her pockets constitutes a search requiring probable cause. See, e.g., United States v. Ward, 682 F.2d 876, 880 (10th Cir.1982) (characterizing directive to empty pockets as a search); State v. Ching, 107 Or.App. 631, 813 P.2d 1081, 1083 (1991) (agreeing with trial court that officer's command that defendant "empty his pockets" was " 'the equivalent of a search by the police' "); 4 Wayne R. LaFave, Search & Seizure § 9.5(b), at 271 (3d ed.1996) (observing that officer in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), exceeded permissible scope of search when he thrust his hand into suspect's pockets and that "[the same result would obtain if the officer, in lieu of a pat-down, simply ordered the suspect to empty his pockets"). Cf. People v. Lipscomb, 179 A.D.2d 1043, 579 N.Y.S.2d 302, 303 (1992) (Even assuming "that the officers were entitled to conduct a protective frisk, they were not entitled to require defendant to empty his pockets.").


source: Caselaw Access Project

author: THORNE, Judge. ORME, Judges

license: Public Domain

text:
    2003 UT App 100
    STATE of Utah, Plaintiff and Appellant, v. Tracy VALDEZ, Defendant and Appellee.
    No. 20010772-CA.
    Court of Appeals of Utah.
    April 3, 2003.

      Mark L. Shurtleff, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellant.
    Margaret P. Lindsay and Patrick V. Lindsay, Aldrich, Nelson, Weight & Esplin, Provo, for Appellee.
    Before Judges DAVIS, ORME, and THORNE.
   OPINION

THORNE, Judge.

{1 The State of Utah appeals the trial court's order suppressing all evidence discovered on Tracy Valdez following an investigatory detention. We affirm.

BACKGROUND

12 On February 26, 2001, Officer Bryan Robinson, an officer with the Pleasant Grove Department of Public Safety, drove to the home of Monique Young to execute an arrest warrant on Ms. Young. After knocking on Ms. Young's door and informing her of the purpose of their presence, Robinson, along with an unidentified officer, agreed to accompany Ms. Young to her bedroom to allow her to dress more appropriately for the weather.

T3 Upon entering the bedroom, both officers saw Valdez, lying face down upon the bed, apparently asleep and covered with either a blanket or a coat. Because Robinson could not see Valdez's hands, he yelled for Valdez to "wake up," and "(let me see your hands." Valdez, however, did not respond to Robinson, thus, Robinson grabbed Valdez by the upper arm and began to shake both Valdez and the bed while repeating his demand that Valdez wake up and show his hands. Then, according to Robinson's testimony, Valdez "kind of gloltl ] up and wlolke[ ] up," apparently showing his hands in the process, at which time Robinson asked Valdez for some identification. Valdez denied having any identification, prompting Robinson to ask Valdez to provide his name and date of birth,. Valdez answered that his name was Sean Tracy Michaels, born December 4, 1961. Robinson called dispatch to check the name Valdez had given for outstanding warrants and to run an NCI check.

T4 However, at some point during this process, Robinson overheard Ms. Young tell the other officer in the room that Valdez was lying. He also heard Ms. Young tell the other officer Valdeg's real name. Robinson then asked dispatch to run a check for outstanding warrants and an NCI check on the name provided by Ms. Young. Dispatch informed Robinson that a valid statewide warrant was outstanding for the person named by Ms. Young. Robinson again asked Valdez if he had any form of identification. This time, Valdez produced a Utah State Identification Card identifying him as "Tracy Manuel Valdez" and Robinson placed him under arrest. During the search subsequent to his arrest, Robinson discovered several small baggies hidden beneath Valdez's belt and a metal vial containing the residue of a white crystal substance, later identified as methamphetamine.

15 Valdez was charged with possession of methamphetamine in a drug-free zone with a prior conviction, possession of drug paraphernalia, and providing false information to a peace officer. Following a preliminary hearing, Valdez filed a motion to suppress, arguing that the evidence underlying the criminal charges resulted from a seizure that was not supported by reasonable articulable suspicion that he, Valdez, had been, or was about to be, involved in any criminal activity. Following a hearing, the trial court granted the motion and suppressed all evidence that resulted from the encounter. The State subsequently dismissed the charges and now appeals the trial court's suppression order.

ISSUE AND STANDARD OF REVIEW

16 In challenging the trial court's suppression order, the State argues that the trial court erred in both its factual findings and its conclusions of law. We will reverse a trial court's factual findings only if we conclude that they are clearly erroneous, which requires a demonstration that the "factual findings ... are not adequately supported by the record." State v. Troyer, 910 P.2d 1182, 1186 (Utah 1995). The trial court's conclusions of law, however, are reviewed for correctness. See id. Because cases involving search and seizure are fact intensive, we grant the trial court's legal determinations a measure of discretion in applying the standard to the given facts. See State v. Chapman, 921 P.2d 446, 450 (Utah 1996).

ANALYSIS

T7 On July 31, 2001, the trial court issued a suppression order that included detailed findings of fact and conclusions of law. Among the findings material to this appeal, the trial court found that the officers arrived at Ms. Young's home with an arrest warrant and that she asked them for permission to retrieve clothing more appropriate for the weather. The officers agreed, conditioned on her allowing them to accompany her. The officers followed Ms. Young into a bedroom, where she was allowed to dress. In the room, the officers noticed a man, Valdez, apparently asleep, lying face down on the bed with his hands obscured from the officers' view. Concerned that they could not see his hands, one of the officers awakened Valdez by yelling at him and shaking him until he roused. After he awoke, and, apparently, turned to see the officers, thus showing his hands, the officers asked for his identification.

8 Based on these findings, the trial court concluded that the officers detained Valdez at the moment they grabbed and shook him. In support of this conclusion, the trial court cited the following facts: The encounter was in a private home, there were two officers in the room, and Ms. Young was already clearly in custody. However, the trial court continued, the initial detention was justified because the officers' concern for their safety was reasonable given the circumstances. However, the trial court concluded that after Valdez awoke and showed his hands to the officers, their safety concerns were alleviated, and any further detention or investigation of Valdez was unjustified by the circumstances. Thus, asking Valdez for his identification, or for information concerning his identity, was beyond the scope of the reason for the initial detention and any information resulting from the unreasonable extension of the detention must be suppressed.

1 9 The State, on appeal, argues:

The trial court failed to recognize that officers reasonably concerned for their safety were authorized to ask defendant to identify himself; even if the officer unreasonably believed defendant to be armed and dangerous, his request for defendant's name was a justifiably minimal intrusion given the civreumstances of the encounter.

110 The Fourth Amendment establishes in the people the right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV.

"[The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the cireumstances of the particular governmental invasion of a citizen's personal security[,l " [which] "depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. "

Maryland v. Wilson, 519 U.S. 408, 411, 117 S.Ct. 882, 884-85, 137 L.Ed.2d 41 (1997) (citations omitted). We will generally consider the detention of a citizen reasonable, and thereby constitutional, only if the officers involved in the detention can articulate a reasonable suspicion that the person being detained " 'has committed or is in the act of committing or is attempting to commit a public offense" " State v. Fridleifson, 2002 UT App 322,¶ 8, 57 P.3d 1098 (quoting Utah Code Ann. § 77-7-15 (1999)). Thus, when faced with a question regarding the reasonableness of a seizure, "we must first determine whether the officer's action was ' "justified at its inception." *' If so, we must then consider whether the resulting detention was * "reasonably related in seope to the circumstances that justified the interference in the first place." '" State v. Chapman, 921 P.2d 446, 450 (Utah 1996) (quoting State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968))).

T11 In the instant case, the State concedes that the officers detained Valdez when they took action to rouse him by loudly demanding that he wake up, grabbing his shoulder, and shaking him until he responded. Thus, we must first examine whether the detention was " ' "justified at its inception." ' " Id. (citations omitted). Under normal cireumstances, we would conclude that the detention was not justified, because the officers involved could not, and indeed never attempted to, articulate any facts that would support a reasonable suspicion that Valdez had committed, or was in the act of committing, a public offense at the time of his detention. See Fridleifson, 2002 UT App 322 at ¶ 8, 57 P.3d 1098. Absent sufficient facts to support such a suspicion, we would normally conclude that the detention violated Valdez's Fourth Amendment rights and affirm the trial court's order on this ground.

112 However, due to the specific facts of this case, we must conduct a further examination into the reasonableness of seizing a third party during the execution of an arrest warrant. Our conclusion in this matter is guided by several United States Supreme Court cases, none of which directly address this specific situation, but when read in concert indicate that the limited seizure of a third party during the execution of an arrest warrant may, under certain very limited circumstances, be permissible without the otherwise necessary showing of facts supporting a reasonable suspicion of criminal activities.

113 We begin by noting that the State's reliance on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), for a broad, generalized officer safety exception is misplaced. If this case were controlled by Terry, the detention would have been unlawful at its outset. See id. at 27, 88 S.Ct. at 1888. In Terry the court held that

where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that erimi-nal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.

Id. at 30, 88 S.Ct. at 1884. Therefore, while officer safety was a concern addressed in Terry, the decision did not create a broad or general "officer safety" exception to the requirements of the Fourth Amendment. Nor did Terry in any way eliminate the requirement that an officer must first be able to articulate specific facts to support a reasonable suspicion of criminal activity before making further inquiries of the suspect. Thus, we must look elsewhere to determine the legality of the officers' initial detention of Valdez.

¶ 14 In Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), the Supreme Court reviewed a state court decision permitting the search of a defendant while he was "on premises being searched pursuant to a search warrant, to protect [police officers] from attack or to prevent the disposal or concealment of anything deseribed in the warrant." Id. at 87, 100 S.Ct. at 340; see also id. at 89-90, 100 S.Ct. at 341. Underlying the state court's determination was a state law permitting police to detain and search persons found on premises subject to a search warrant. See id. at 89, 100 S.Ct. at 341. On review, the Supreme Court held that while the search warrant was supported by probable cause, the specific search of the defendant was not. See id. at 90-91, 100 S.Ct. at 342. In so holding, the court concluded that "a person's mere propinguity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id. The court went on to state that "[this [probable cause] requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another...." Id. Thus, the court determined that the searches of the defendant violated both the Fourth and the Fourteenth amendments and reversed the judgment of the state court. See id. at 97, 100 S.Ct. at 345. The court did not, however, address the propriety of a non-investigative detention of a person while a search warrant was executed.

15 Later, in Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the court did address the issue of the propriety of temporarily seizing persons found on premises subject to a search warrant. See id. at 695 n. 4, 101 S.Ct. at 2590 n. 4. Summers arose when "police officers were about to execute a warrant to search a house for narcotics" and they encountered the defendant, an occupant of the house, outside. Id. at 698, 101 S.Ct. at 2589. The officers asked the defendant to assist them in gaining entry to the house, and then detained him while they searched the house. See id. After examining a long line of seizure cases, the court concluded that "[ilf the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home." Id. at 704-05, 101 S.Ct. at 2595 {footnote omitted). The court did not limit the application of this detention power to merely the owner of the premises. Rather, the court stated that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Id. at 705, 101 S.Ct. at 2595 (footnotes omitted) (emphasis added),

16 Summers, however, while establishing that under certain limited cireumstance police officers can detain a citizen without a reasonable suspicion that the individual is involved in criminal activity, is not dispositive of the present situation. The holding in Summers is predicated upon the officers being in possession of a valid search warrant targeted at discovering contraband on the premises, see id., and not on a valid arrest warrant for a third party. And, as the Supreme Court has made clear, "while an arrest warrant and a search warrant both serve to subject the probable-cause determination of the police to judicial review, the interests protected by the two warrants differ." Steagald v. United States, 451 U.S. 204, 212-13, 101 S.Ct. 1642, 1648, 68 L.Ed.2d 38 (1981).

¶ 17 In Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), the court addressed a situation that more closely resembles the instant case. In Wilson, the court was faced with determining the propriety of an officer, in the course of executing a routine traffic stop, ordering the passenger of the automobile to exit the vehicle without an independent reasonable suspicion tying the passenger to criminal activity. See id. at 410, 117 S.Ct. at 884. After explaining that "reasonableness 'depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers," ' " id. at 411, 117 S.Ct. at 885 (citations omitted), the court determined that, on balance, the intrusion was minimal, and though it was indeed a detention it was not an illegal detention. See id. at 414-15, 117 S.Ct. at 886. The court, in part, based this decision on the logic underlying Summers, and in doing so repeated that " 'the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.' " Wilson, 519 U.S. at 414, 117 S.Ct. at 886 (quoting Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594 (footnote omitted)).

118 Therefore, we conclude that under certain cireumstances officers may detain a person without reasonable suspicion of criminal activity for the sole purpose of " 'ex-ercis[ing] unquestioned command of the situation.. " Id. However, absent authority to the contrary, see Wilson, 519 U.S. at 414-15, 117 S.Ct. at 886; Summers, 452 U.S. at 705, 101 S.Ct. at 2595, each situation is subject to a necessity determination through examination of the totality of the circumstances. See Wilson, 519 U.S. at 413-14, 117 S.Ct. at 886; Summers, 452 U.S. at 701-03, 101 S.Ct. at 2593-95. Thus, we examine the totality of the cireumstances surrounding the initial detention of Valdez to determine whether or not the action was " (Justified at its inception, " Chapman, 921 P.2d at 450 (quoting Lopez, 873 P.2d at 1132 (quoting Terry, 392 U.S. at 9, 88 S.Ct. at 1878-79)), as necessary for the officers to " 'exercise unquestioned command of the situation." " Wilson, 519 U.S. at 414, 117 S.Ct. at 886 (quoting Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594 {footnote omitted)).

119 Here, the record shows that the officers arrived at Ms. Young's home with a valid warrant for her arrest. After informing her of the warrant and their intention to take her to jail, Ms. Young requested permission to retrieve additional clothing and the officers followed her into her home. Upon entering her bedroom, the officers noticed Valdez, lying on the bed with his hands obscured from view. After examining these facts, we conclude that the trial court correctly concluded that the officer's initial detention of Valdez was lawful. Under the circumstances, it was reasonable for Robinson to exercise command over the situation. Detaining Valdez to ensure that no harm came to either the officers or Ms. Young was minimally intrusive, necessary to ensure safety in the situation and thus, not a violation of the Fourth Amendment. The trial court did not find, however, that an investigatory detention, where information of any kind is sought, was necessary to secure the safety of the participants. Therefore, the officer safety justification proffered by the State cannot be extended, no matter how minimally intrusive.

120 We can find no authority supporting an abandonment of the rule requiring that any further detention or investigation, beyond what is necessary to control the scene, be " ' "reasonably related in seope to the cireumstances that justified the interference in the first place." ° " Chapman, 921 P.2d at 450 (quoting Lopes, 873 P.2d at 1132 (quoting Terry, 392 U.S. at 9, 88 S.Ct. at 1878-79)). Support for this position can be found in State v. Johnson, 805 P.2d 761 (Utah 1991), where the Utah Supreme Court "held that running a warrants check on a passenger in an automobile that had been properly stopped exceeded the appropriate scope of detention." Chapman, 921 P.2d at 4538 (emphasis omitted) (citing Johnson, 805 P.2d at 764). Thus, even a "minimal intrusion" requires the police officer to provide a basis for the action. Therefore, absent any specific facts to support a reasonable suspi-clon of eriminal activity on the part of Valdez, Robinson's detention of Valdez was limited to the reason justifying its inception-in this case, controlling the scene.

1 21 The trial court found, and we are not presented with a factual basis to disturb its finding, that nothing supported the officers' investigation into Valdez's identity during the detention. The trial court further found that no articulable facts existed to support a reasonable suspicion that Valdez was involved in any criminal activity. Therefore, Robinson's request for Valdez's identification, or, absent that, information concerning his identity, exceeded the scope of the reason justifying the initial detention and unnecessarily expanded its duration and scope. Thus, we conclude that the trial court correctly suppressed any evidence gathered from that point forward.

CONCLUSION

122 After examining the totality of the cireumstances, and because the police officers possessed a valid arrest warrant for the resident of the home, we conclude that the officers' authority to exercise unquestioned command of the arrest seene extended to the temporary detention of Valdez to ensure he was not in a position to cause harm to either the officers or Ms. Young. However, absent a reasonable suspicion that Valdez had been or was presently involved in a criminal activity, the seope of this detention was limited to ensuring Valdez had no weapon in his hands and was in no position to violently interfere with the arrest. Therefore, we affirm the trial court's decision to suppress the evidence discovered as a result of Officer Robinson's unlawful extension of the seope and duration of the detention. Accordingly, we affirm.

1 23 I CONCUR: JAMES Z. DAVIS, Judge.

ORME, Judges

(concurring and dissenting).

24 I concur in the small portion of the majority's opinion devoted to the single issue actually before us on appeal. I dissent from the gratuitous treatment of matters not at issue in this appeal. My limited purpose in writing separately is to call attention to the fact that most of the main opinion is dicta, pure and simple, and thus without any prece-dential value.

1 25 It is important to understand that this case is in an unusual posture. It is not the typical Fourth Amendment case in which a defendant appeals, challenging the trial court's conclusion at every step in the analytic chain and necessarily requiring this court to treat each step. See, e.g., State v. Chapman, 921 P.2d 446 (Utah 1996); State v. Leonard, 825 P.2d 664 (Utah Ct.App.1991), cert. denied, 843 P.2d 1042 (Utah 1992). Rather, this is one of those rare appeals by the State. In bringing its appeal, the State agrees with the trial court's initial conclusions, begging to differ only with its last one. And Defendant did not cross-appeal, thereby placing the preliminary determinations in issue. While the preliminary determinations entail admittedly interesting questions, and I can understand the temptation to reach out and provide answers to such questions, a long tradition of self-discipline precludes appellate courts from offering advisory opinions. See State v. Smith, 817 P.2d 828, 830 (Utah Ct.App.1991). In the exercise of judicial restraint, appellate courts should limit their decisions to actual controversies. See State v. Herrera, 895 P.2d 359, 371 (Utah 1995).

26 In this case, the State does not disagree with the trial court's decision about when a detention for Fourth Amendment purposes first occurred. Most importantly, the State does not even hint at the possibility that the detention was anything other than fully lawful at its inception. Concomitantly, the State raises no issue about the propriety "of seizing a third party during the execution of an arrest warrant," despite the majority's claim that the "reasonableness" of so doing "must" be examined, ostensibly because of the "specific facts of this case." The only challenge mounted by the State in this appeal is to the trial court's determination that once Defendant's hands were revealed, there was no legal basis on which to extend the detention and require him to produce identification. That is the single issue this court should be addressing, although Judges Thorne and Davis, caught up in discussing the intriguing non-issues, do not even get to it until paragraph 20 of their opinion.

T27 I have no problem whatsoever with the majority's treatment of the issue properly before us, and thus concur in paragraphs 20 and 21 of the lead opinion. I dissent from the balance of the opinion, because such a sweeping foray into Fourth Amendment jurisprudence is not appropriate given the single, simple, straightforward issue raised by the State.

      . The record is silent concerning the basis for the arrest warrant, the nature of Ms. Young's alleged crimes, or whether the officers had some reason to suspect Ms. Young of associating with people who might present some danger to the arresting officers.

      . When Ms. Young answered the door, she was wearing boxer shorts, and presumably a shirt, but was not wearing clothing sufficient to insulate her from the February weather.

      . ""It is quite plain that the Fourth Amendment governs 'seizures' of the person which do not eventuate in a trip to the station house...." Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968).

      . Contrary to the dissent's assertion concerning our need to address the justification of the initial detention, this issue is properly before this court. While it is clear that the State has no reason to question the justification of the initial detention, Valdez not only has reason, but does in fact question the justification of the initial detention. This court has a long history of addressing material points raised by an appellee in response to arguments made by an appellant. Moreover, the dissent's position shirks our duty to consider whether the actions of the officers in this case were " ' "reasonably related in scope to the circumstances that justified the interference in the first place." '" State v. Chapman, 921 P.2d 446, 450 (Utah 1996) (quoting State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (quoting Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1878-79, 20 L.Ed.2d 889 (1968))). To properly make this determination, we must first determine what justified the initial detention, which in turn requires an examination of the reasonability of the initial detention.

      . This limited detention does not grant the police license to conduct an investigation of the third party, absent a reasonable suspicion that the third party has been or is involved in a criminal activity. See Chapman, 921 P.2d at 450. The State's argument that knowledge of the third party's identity, and the resulting background check for outstanding warrants and criminal history, is vital to insuring the safety of the officers was not established in this fact situation or in the case law. See State v. Johnson, 805 P.2d 761, 763-64 (Utah 1991).

      . The police officers detained a total of eight people in the house while they conducted the search. See Michigan v. Summers, 452 U.S. 692, 693 n. 1, 101 S.Ct. 2587, 2589 n. 1, 69 L.Ed.2d 340 (1981).

      . The court arrived at the decision after examining the totality of the circumstances, including (1) the absence of any articulable reason to detain the passenger, (2) the fact that the passenger had already been stopped "by virtue of the stop of the vehicle," (3) the fact that the only change in circumstance involved would be the actual location of the passenger, and (4) by removing the passenger from the vehicle, the passenger was denied access "to any possible weapon that might be concealed in the interior of the passenger compartment." Maryland v. Wilson, 519 U.S. 408, 413 414, 117 S.Ct. 882, 886, 137 L.Ed.2d 41 (1997).

      . Admittedly, in both Summers and Wilson, the court created what are best described as "bright line rules" concerning situations similar to the situations presented in those cases. See Wilson, 519 U.S. at 414-15, 117 S.Ct. at 886; Summers, 452 U.S. at 705, 101 S.Ct. at 2595. However, it is clear to this court, from the context of both decisions, that the reasons underlying the creation of the "bright line rule" rests in the repeatability of those situations, thus avoiding the necessity for examining similar situations on a case-by-case basis.

      . We find the boundaries of the situations presented in Summers and here to be similar to those defined in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), where the Supreme Court announced the rule permitting an officer to control the "the area from within which [a defendant being arrested] might gain possession of a weapon or destructible evidence." Id. at 763, 89 S.Ct. at 2040.

      . We distinguish the unlawful nature of the officer's action in the present case, from similar actions that are permitted during the course of a voluntary encounter. During a voluntary encounter an officer is permitted to ask any citizen for information concerning his or her identity so long as the citizen feels free to refuse the request and retire from the encounter unhindered by the officer.

      . The State argues that "there is no express evidence that Defendant showed his hands to Officer Robinson or did anything else to allay the officer's concerns for his safety." However, the reason our rules require a party challenging factual findings to marshal all of the evidence and the inferences that can be made from the evidence in support of the findings is because it is through this material that we review the findings. If, from the inferences alone, we are able to conclude that the findings are not clearly erroneous, we do not need the findings to be supported by direct evidence. Therefore, we conclude that the State's argument concerning the lack of any direct evidence of Valdez's showing his hands is without merit.

      . The State also argues that the request for Valdez's identification, and the subsequent effort to check for outstanding arrest warrants, was a minimal intrusion. We disagree. We have concluded that the minimal intrusion permitted under these circumstances ends at the officer's authority to detain Valdez to control the situation. As stated clearly in State v. Johnson, "the leap from asking for the passenger's name and date of birth to running a warrants check on her severed the chain of rational inference from specific and articulable facts and degenerated into an attempt to support an as yet 'inchoate and unparticularized suspicion or "hunch." ' " 805 P.2d 761, 764 (Utah 1991) (citations omitted). Here, the officer's legal authority, absent additional information, extended only to the temporary detention of Valdez, and Robinson's foray into investigation equals nothing more than "an attempt to support an as yet "inchoate and unparticularized suspicion or "hunch," ' " id. (citations omitted), which, much like the officer's actions in Johnson, cannot be categorized as a minimal intrusion.