author: BILLINGS, Presiding Judge.

text:
    2004 UT App 56
    James WEBB, Plaintiff and Appellant, v. UNIVERSITY OF UTAH, a division of the State of Utah; Park Plaza Condominium Owners’ Association, a Utah nonprofit corporation; and Jonette Webster, Defendants and Appellee.
    No. 20020985-CA.
    Court of Appeals of Utah.
    March 11, 2004.

      Brent Gordon, Driggs Bills & Day, PC, Salt Lake City, for Appellant.
    Mark L. Shurtleff, atty. gen., Sandra L. Steinvoort, and Nancy L. Kemp, asst. atty. gen., Salt Lake City, for Appellee.
    Before BILLINGS, P.J., BENCH, Associate P.J., and THORNE, Jr., J.
   OPINION

BILLINGS, Presiding Judge.

¶ 1 James Webb appeals the trial court’s order granting the University of Utah’s (University) motion to dismiss pursuant to rule 12(b)(6) of the Utah Rules of Civil Procedure. We reverse and remand.

BACKGROUND

¶ 2 Webb was a student in an earth science course at the University. As part of the course curriculum, students were required to attend an off-campus field trip to examine fault lines in. the Salt Lake County area. During the trip, Webb and other students were directed to walk through a condominium complex to examine a particular ■ fault line. The sidewalks within this private residential property were covered with snow and ice, and as Webb and others walked on the sidewalks toward the viewing area, one of Webb’s fellow students lost her footing on the slippery surface. To steady herself, she grabbed onto Webb for support and caused Webb to slip on the ice, fall to the ground, and sustain injuries.

¶ 3 Webb filed suit against the University and others, alleging that the University was negligent by directing students into a “dangerous area” on a school-organized field trip. The University moved to dismiss, arguing that no special relationship existed between Webb and the University that gave rise to a duty on the part of the University. The trial court agreed and dismissed Webb’s claims against the University on that ground alone. Webb appeals.

ISSUE AND STANDARD OF REVIEW

¶ 4 Webb contends that the trial court erred by dismissing his claims against the University when it concluded that the University owed Webb no duty. A rule 12(b)(6) motion to dismiss “is appropriate only where it clearly appears that the plaintiff ... would not be entitled to relief under the facts alleged or under any state of facts [the plaintiff] could prove to support the[] claim.” Prows v. State, 822 P.2d 764, 766 (Utah 1991). “Because the propriety of a 12(b)(6) dismissal is a question of law, we give the trial court’s ruling no deference and review it under a correctness standard.” St Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 196 (Utah 1991). “The issue of whether a duty exists is entirely a question of law to be determined by the court.” Ferree v. State, 784 P.2d 149, 151 (Utah 1989).

ANALYSIS

¶ 5 “[T]o prevail upon a negligence claim under Utah law, a plaintiff must establish, among other things, that the defendant owed him or her a duty of care.” Young v. Salt Lake City Sch. Dist., 2002 UT 64,¶ 12, 52 P.3d 1230. Webb characterizes the University’s duty of care as a duty to exercise ordinary and reasonable care when directing its students to take a certain route on a required field trip. The University characterizes the duty differently, as a duty to protect Webb from the icy conditions at the condominium complex. The University then argues that because the duty is a duty to protect, Webb must establish a special relationship between himself and the University, which Webb has not. The trial court agreed with the University and found that the University did not owe Webb a duty to protect him from the icy conditions.

¶ 6 We disagree that Webb must demonstrate a special relationship with the University. The duty alleged in Webb’s complaint is not a duty to protect, but rather the University’s duty not to act negligently in providing instruction. Specifically, Webb alleges that the University directed him to enter a dangerous area on a school-sponsored and required field trip. Thus, this is not a case where a failure to act is alleged. Therefore, the special duty doctrine relied upon by the University is not helpful. See Hunsaker v. State, 870 P.2d 893, 897 (Utah 1993) (finding no special duty to protect a member of the general public from a paroled violent felon); Higgins v. Salt Lake County, 855 P.2d 231, 236 (Utah 1993) (finding no special duty to protect a member of the general public from a discharged mental patient); Rollins v. Petersen, 813 P.2d 1156, 1161 (Utah 1991) (finding no special duty to protect a member of the general public from an escaped mental patient); Ferree v. State, 784 P.2d 149, 151 (Utah 1989) (finding no special duty to protect a member of the general public from a prisoner on weekend release); Christenson v. Hayward, 694 P.2d 612, 613 (Utah 1984) (finding no special duty to protect a member of the general public from a drunk driver who had been stopped by the police).

¶ 7 Further, we conclude that this case is distinct from Beach v. University of Utah, 726 P.2d 413 (Utah 1986). In Beach, a student brought suit against the University for injuries she had sustained when she fell from a cliff during a weekend field trip. See id. at 414. The fall occurred while Beach was voluntarily intoxicated and after the daily course work had been completed. See id. On her way to her tent at night, Beach became disoriented and subsequently fell from the cliff. See id. at 415. Beach argued that the University was negligent by failing “to supervise and protect her.” Id. The Utah Supreme Court disagreed. It first recognized that “[t]he law imposes upon one party an affirmative duty to act only when certain special relationships exist between the parties.” Id. The court then concluded that because “Beach’s situation was not distinguishable from that of the other students on the trip ... no special relationship arose between the University and Beach.” Id. at 416. Thus, “the University had no affirmative obligation to protect or supervise [Beach] and no duty was breached.” Id.

¶8 The crucial difference between Beach and the facts in this case is that Webb’s fall occurred while Webb was acting pursuant to instructions given by the University during course work. The University directed Webb to cross the condominium complex, whereas Beach was acting on her own when she fell. Beach claimed that the University had a special duty to protect her from her own actions, but the court found otherwise. We cannot ignore this distinction. Had Beach fallen from the cliff after her instructor had directed all the students to cross a treacherous path on the edge of the cliff, Beach certainly could have stated a negligence claim against the University even though Beach’s situation was not distinguishable from that of the other students. While the University does not have a custodial relationship with its students, see id. at 418, the University does owe a duty to exercise ordinary and reasonable care when it affirmatively acts in directing its students to perform certain tasks as part of its curriculum.

¶ 9 A second case involving the University, Cannon v. University of Utah, 866 P.2d 586 (Utah Ct.App.1993), also supports our result. In Cannon, this court upheld summary judgment for the University where the plaintiffs were injured in an auto-pedestrian accident when they used an off-campus crosswalk just off University property while walking to a University sporting event. See id. at 587-88. The Cannons alleged that the University police were negligent because, prior to the Cannons’ arrival, the officers had ceased directing traffic and were simply sitting in the police car. See id. at 588. We recognized that “the officers did not owe any specific duty to the Cannons which they did not already owe to the general public.” Id. at 590. Accordingly, we held that the University had no special relationship with, and thus owed no duty to, the Cannons. See id.

¶ 10 However, in reaching our conclusion we stated, “it is important to note that the Cannons did not rely on the aid of the officers when they attempted to cross the street.” Id. In other words, it was crucial that the officers were not directing the Cannons into the dangerous area. In this case, Webb alleges that he crossed the condominium complex because the University directed students to do so. Just as the officers in Cannon would have owed a duty to use ordinary and reasonable care if they had aided the Cannons across the street, the University owed a duty to Webb to use ordinary and reasonable care when directing Webb to walk across the condominium complex. Thus, the trial court erred when it concluded that the University, as a matter of law, owed no duty to Webb.

CONCLUSION

¶ 11 The University owes its students the duty to exercise ordinary and reasonable care when it directs students to engage in specific activities ás part of its educational instruction. Webb alleged that the University failed to exercise such care when it instructed him to cross an allegedly dangerous condominium complex as a part of a required field trip. Thus, the trial court erred when it concluded that the University owed no duty to Webb. Accordingly, we reverse and remand.

¶ 12 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.

      . "When determining whether a trial court properly granted a rule 12(b)(6) motion to dismiss, we accept the factual, allegations in the complaint as true and consider them and all reasonable inferences to be drawn from them in a light most favorable to the plaintiff.” St. Benedict’s Dev. Co. v. St. Benedict's Hosp., 811 P.2d 194, 196 (Utah 1991). We state the facts of this case accordingly.

      . Webb also claims that he contracted with the University for the performance of a service and, therefore, "[u]nder fundamental principles of tort law, the University owed [him] a duty ... to act as a reasonably prudent person when it undertook ... [to] provid[e] educational instruction.” However, Webb failed to preserve this issue by raising it in the trial court. Webb does not argue plain error or exceptional circumstances. Absent plain error or exceptional circumstances, Utah appellate courts will not decide issues that are raised for the first time on appeal. See Chapman v. Uintah County, 2003 UT App 383,¶ 10, 81 P.3d 761. Hence, we do not reach the merits of Webb’s contract argument.

      . The distinction between act and omission applies generally and determines whether a plaintiff must demonstrate a special relationship to maintain a negligence claim. See Restatement (Second) of Torts §§ 302, 314 (1965); see also Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986) (citing Restatement (Second) of Torts § 314(a) (1964), for guidance).

      . Were Webb alleging that the University was negligent by failing to control his fellow student who caused Webb to fall, the University would be correct that the "failure to protect" line of cases applies.

      . The Arizona Court of Appeals distinguished Beach in a similar way. See Delbridge v. Maricopa County, 182 Ariz. 55, 893 P.2d 55, 59 (Ct.App.1994) (distinguishing "non-curricular activities" from those "supervised by the instructor and included in the curriculum”).

      . Because we recognize that the line between the University acting and the University protecting its students is not always easy to draw, we note that were a special relationship required in this case, the facts alleged by Webb are sufficient to establish a special relationship. Where one party controls another party's acts, a special relationship exists because the controlling party "assumes responsibility for another’s safety or deprives another of his or her normal opportunities for self-protection." Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986) (citing Restatement (Second) of Torts § 314(A) (1964)). "Determining whether one party has an affirmative duty to protect another ... requires careful consideration of the consequences for the parties and society at large.” Id. at 418. Failure to find a special relationship under the facts of this case would permit the University to escape all liability when it injures students by requiring them to engage in activities fraught with unreasonable risks. Such adverse consequences for society would require that we find a special relationship in these circumstances.

      . Because we review only whether the University owed Webb a duty, we express no opinion whether the facts alleged are sufficient to demonstrate a breach of that duty or a sufficient causal link leading to Webb's injuries. For instance, if there were safe routes across the condominium complex, but Webb chose a dangerous path, it would not necessarily follow that the University directed Webb into a dangerous area.


source: Caselaw Access Project

author: JACKSON, Judge:

license: Public Domain

text:
    2004 UT App 73
    STATE of Utah, Plaintiff and Appellant, v. Charles Bryan CUSHING, Defendant and Appellee.
    No. 20020539-CA.
    Court of Appeals of Utah.
    March 18, 2004.

      Mark L. Shurtleff, Atty. Gen., and Marian Decker, Asst. Atty. Gen., Salt Lake City, for Appellant.
    Rudy J. Bautista and Catherine E. Lilly, Salt Lake City, for Appellee.
    Before BILLINGS, P.J., GREENWOOD, and JACKSON, JJ.
   AMENDED OPINION

JACKSON, Judge:

¶ 1 The State of Utah appeals the trial court’s order dismissing with prejudice enhanced counts of possession of methamphetamine, a second degree felony, and possession of marijuana, a class A misdemeanor, in violation of Utah Code Ann. §§ 58-37-8(2)(a)(i), —8(4)(c) (1998); and interference with a peace officer, a class B misdemeanor, in violation of Utah Code Ann. § 76-8-305 (1999). We affirm.

BACKGROUND

¶ 2 On May 1, 2001, Detective Jensen of the West Jordan City Police Department observed a white Nissan nearly collide with another car, as well as his own unmarked patrol car. Detective Jensen followed the Nissan and initiated a traffic stop. When Detective Jensen turned on his “wig-wag” and red and blue lights, he recognized the driver of the Nissan to be Rita Morrison, a known drug offender. He did not, however, recognize the passenger in Morrison’s car.

¶ 3 Morrison did not immediately pull over, and Detective Jensen activated his siren. Detective Jensen observed Morrison looking back at him, but she continued driving several seconds until she reached the parking lot of an apartment complex known by Detective Jensen as one of the worst complexes in the city for criminal activity. Before Morrison’s car came to a complete stop, the passenger door opened and Defendant Charles Bryan Cushing jumped out and began “almost [jogging]” toward the complex.

¶ 4 Detective Jensen identified himself as a police officer and asked Cushing to stop and stay with the car as a safety precaution. Cushing ignored Detective Jensen’s request, instead looking back at Detective Jensen and immediately “launching into a full sprint.” Detective Jensen pursued Cushing, but did not apprehend him before he ran into apartment number four. Detective Jensen worried that Cushing was attempting to evade detection of contraband or to obtain a weapon inside the apartment. This worry stemmed from Cushing’s association with a known drug offender in an area known for violent crime, and from Detective Jensen’s experience that “the propensity for violence among ... drug users is higher than the norm.”

¶ 5 Detective Jensen remained at the door of the apartment to wait for backup officers to arrive. Five minutes later, another man exited the apartment in a nervous and suspicious manner, carrying a garbage bag. The man identified himself as Edward Majera and claimed that another man named Cameron Larsen was also in the apartment, but that no one had run into the apartment. The officers knocked on the apartment door, and Larsen responded, identifying himself as the leaseholder. Larsen also denied that anyone had run into the apartment or that anyone else remained inside. Detective Jensen explained that he had observed Cushing, as yet unidentified by name, run into the apartment, and Larsen nervously admitted that Cushing was hiding under a bed in the apartment.

¶ 6 Detective Jensen obtained Larsen’s permission to enter the apartment, and Larsen responded, “Yeah, I don’t want him in my apartment.... [Y]ou can go get him out but I’m not going to help you. This guy will kill me.” Larsen further informed Detective Jensen that Cushing always had a gun on him and expressed further concern for his safety if Cushing discovered Larsen’s cooperation with the police. Majera expressed similar concerns.

¶ 7 Rather than entering the apartment immediately, Detective Jensen opened the front door and called to Cushing inside the apartment. Detective Jensen further indicated that a police dog would be sent in shortly to find Cushing. Several minutes later, Cushing exited the apartment, was handcuffed and placed in a patrol car. He was detained there until police could complete a search of the apartment, with Larsen’s verbal and written consent. The police discovered methamphetamine and marijuana in the front room, as well as a pistol near where the drugs were found.

¶ 8 Cushing moved the court to suppress the drugs, and the court granted the motion. The trial court determined that Detective Jensen’s investigation of Cushing was justified by Cushing’s unprovoked flight. The trial court further concluded that the otherwise justified Tern/ stop became excessive when Cushing was made to sit handcuffed in a patrol car’ while police searched the apartment into which he had fled. The trial court also concluded that the excessive detainment tainted Larsen’s independent consent to search the apartment.

¶ 9 The State appealed, but we remanded for the trial court to certify that the rulings were final and appealable, pursuant to Utah Code Aim. § 77-18a-1 (1999) and State v. Troyer, 866 P.2d 528 (Utah 1993), as substantially impairing the State’s case. On remand and pursuant to the State’s motion to dismiss with prejudice, the trial court certified the case as final and appealable without holding a hearing.

ISSUES AND STANDARDS OF REVIEW

¶ 10 Cushing argues the State has no right of appeal and this court has no jurisdiction to hear this case pursuant to Utah Code Ann. § 77-18a-l (1999) and State v. Troyer, 866 P.2d 528 (Utah 1993), because Cushing was not afforded a hearing and a meaningful opportunity to object to the State’s motion to dismiss. Whether this court has jurisdiction presents a question of law that we review for correctness. See Beaver County v. Qwest, Inc., 2001 UT 81,¶ 8, 31 P.3d 1147.

¶ 11 The State challenges the trial court’s conclusion that police exceeded the scope of an otherwise permissible Terry stop by securing Cushing in a patrol car while they searched the apartment. Whether a particular set of facts gives rise to reasonable suspicion is a question of law that we review for correctness. See State v. Chapman, 921 P.2d 446, 450 (Utah 1996). “The legal standard for reasonable suspicion, however, ‘is highly fact dependent and the fact patterns are quite variable.’ The legal standard therefore conveys a measure of discretion to the trial court in our application of the correctness standard to a given set of facts.” Id. (citations omitted).

ANALYSIS

I. Jurisdiction

¶ 12 We first address whether we have jurisdiction to hear the State’s appeal. Cushing argues that, pursuant to Utah Code Ann. § 77-18a-l (1999) and State v. Troyer, 866 P.2d 528 (Utah 1993), the trial court must hold a hearing to determine whether suppression of the drug evidence substantially impairs the State’s ease. The trial court did not hold a hearing. Further, Cushing argues, although the drug charges could not stand without the drug evidence, the remaining charge of interference with a peace officer could still be brought. Thus, Cushing argues, the case should not have been dismissed and the suppression ruling was neither final nor appealable, depriving this court of jurisdiction.

¶ 13 Utah law provides that “[a]n appeal may be taken by the prosecution from ... (e) an order of the court granting a pretrial motion to suppress evidence when upon a petition for review the appellate court decides that the appeal would be in the interest of justice.” Utah Code Ann. § 77-18a-l(2). However, such an appeal is limited to those cases where the suppression ruling substantially impairs the State’s case:

We believe that trial court certification is more effective than relying on the prosecution's assurances that the suppression ruling substantially impairs the State’s case] because it gives the defendant a chance to object before the dismissal is entered while still permitting review by the appellate court. We will therefore review suppression orders on appeal from a dismissal only where the trial court certifies that the evidence suppressed substantially impairs the prosecution’s case.

Troyer, 866 P.2d at 531. The purpose of requiring a dismissal with prejudice is to bar the State from refiling charges against the defendant if the suppression ruling is affirmed on appeal. See id. These requirements underscore the fact that the prosecution’s ability to appeal is substantially narrower, by legislative design, than that of a defendant. See id. Otherwise, “ ‘the State [would have] an appeal of right from virtually every adverse pretrial order,’ for the State will almost always be able to dismiss a case, appeal from that dismissal, and then refile the charges, whatever the outcome of the appeal.” Id. at 530-31 (quoting State v. Waddoups, 712 P.2d 223, 224 (Utah 1985)).

¶ 14 Cushing argues that because the trial court did not hold a hearing on the State’s motion to dismiss, he was not allowed “a chance to object before the dismissal [was] entered.” Id. at 531. Had he been afforded such an opportunity, Cushing maintains, he would have objected on grounds that, although the drug charges could no longer stand, the charge of -interference with a peace officer yet remained. The State could have moved forward on that charge, Cushing argues, and the suppression order should not, therefore, be considered final and ap-pealable and this court has no jurisdiction over the State’s appeal.

¶ 15 We are not persuaded by Cushing’s argument for three reasons. First, Cush-ing’s argument seems to assume that Troyer considered a hearing the only appropriate venue in which a defendant may object to the State’s motion to dismiss. However, we read nothing in Troyer that would lend itself to this interpretation. Objections may be made on paper as well as in person.

¶ 16 Second, Cushing’s argument misconstrues the Troyer requirements. Cushing argues that because a minor charge remained unaffected by the suppression order the State could still go forward and the suppression order thus is not final or appealable. However, Troyer requires substantial impairment to the State’s case, rather than complete impairment. See id. The suppressed drug evidence provided the basis for at least two-thirds of the State’s case, including an enhanced second-degree felony charge for methamphetamine possession and an enhanced class A misdemeanor charge for marijuana possession. These two charges carry possible sentences of “not less than one year nor more than 15 years,” and one year. See Utah Code Ann. §§ 76-3-203, -204(1) (1999). After the suppression order, however, Cush-ing’s remaining class B misdemeanor charge carried a possible sentence of a six month term. See id. § 76-3-204(2). Thus, we conclude the State’s case was substantially impaired, and the trial court properly dismissed the case regardless of the remaining minor charge.

¶ 17 Third, Troyer itself does not require rigid, mechanical application. After concluding that “trial court certification ... will be required before the State may appeal and seek review of suppression orders after dismissal,” the supreme court immediately stated, “[i]n this case, however, we see no need to remand the ease to the trial court for certification. It is undisputed that the cumulative effect of the suppression orders left the prosecution unable to proceed.” Troyer, 866 P.2d at 531-32. Thus, jurisdiction is conferred upon an appellate court pursuant to a final appealable order if it has sufficient indi-cia of substantial impairment to the State’s case. Where the supreme court refused in Troyer to remand the case pursuant to its own newly-proclaimed rule, we would be misguided indeed to refuse jurisdiction simply because the trial court did not hold a hearing on the motion.

¶ 18 Accordingly, we conclude the trial court’s certification was sufficient under Troyer, the dismissal was a final appealable order, and we thus have jurisdiction over the State’s appeal.

II. The Trial Court’s Suppression Order

¶ 19 The trial court concluded the initial traffic stop was lawful because Detective Jensen observed Morrison driving erratically, giving rise to a reasonable belief that she was intoxicated. It noted that the initial stop “only justified an investigation of Ms. Morrison’s actions [and that] any investigation of Mr. Cushing must be based on a separate articulable suspicion.” The trial court concluded that Cushing’s “unprovoked flight in a high crime area gave rise to an articulable suspicion of -wrongdoing” justifying a Tern/ stop.

[Shopping 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.... However, what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.
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.

State v. Lafond, 2003 UT App 101,¶¶ 11-12, 68 P.3d 1043 (quotations and citations omitted). “If reasonable suspicion of more serious criminal activity ... arise[s], 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.” State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (quotations and citations omitted) (second, third, and fourth alterations in original). For example, once the officers apprehend a suspect pursuant to reasonable suspicion, they may frisk the suspect in order to dispel or confirm whether the suspect is carrying a weapon. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

¶ 20 Neither party challenges the trial court’s conclusion that the initial traffic stop was justified. Further, we agree with the trial court that Cushing’s flight in a high crime area to evade Detective Jensen gave rise to reasonable suspicion of more serious criminal activity sufficient to detain him. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), resolves the issue. In that case, the defendant fled unprovoked in an area known for a high incidence of drug trafficking. These two considerations alone were enough for the United States Supreme Court to determine that reasonable suspicion existed.

An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a “high crime area” among the relevant contextual considerations in a Terry analysis.

Id. at 124, 120 S.Ct. at 676 (citations omitted). Further, “[h]eadlong flight — wherever it occurs — is the consummate act of evasion: [i]t is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id.

¶ 21 In this case, Cushing fled unprovoked from a DUI stop in an area known by the detective to be a high crime area. Thus, this case is indistinguishable from Wardlow, and the apprehension and detention of Cushing does not pose a problem. See also United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607 (1975) (stating “obvious attempts to evade officers can support a reasonable suspicion”).

¶ 22 However, the scope of that reasonable suspicion “is still limited.” State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994). The officers may not pursue a line of investigation not “reasonably related in scope to the circumstances which justified the interference in the first place.” Lafond, 2003 UT App 101 at ¶ 12, 68 P.3d 1043. This limited justification to detain a suspect does not give officers carte blanche investigative authority. It must be particularly noted that police authority to detain a suspect on reasonable suspicion is a creature of exigency. See Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Once the suspect is in police custody, the threat is dispelled, and the officers find nothing giving rise to an expanded scope of suspicion or probable cause, police investigative authority generally dissolves. See id. at 25-26, 88 S.Ct. at 1882; State v. Chapman, 921 P.2d 446, 452-53 (Utah 1996) (stating unduly long detention may cast doubt upon reasonableness); Lopez, 873 P.2d at 1132.

¶ 23 In this case, police handcuffed Cushing and searched his person to determine whether he had a weapon or if any drugs were readily apparent. Upon determining that Cushing had neither drugs nor weapons, they placed him in a patrol car to wait while they expanded their investigation by searching his apartment. Police authority to detain Cushing and continue their investigation ended when their suspicions that Cushing had contraband or dangerous weapons on his person were dispelled. “Once the purpose of the initial stop is concluded, ... the person must be allowed to depart. ‘ “Any further temporary detention for [investigation] after [fulfilling] the purpose for the initial ... stop” ’ constitutes an illegal seizure, unless an officer has probable cause or a reasonable suspicion of a further illegality.” State v. Hansen, 2002 UT 125,¶ 31, 63 P.3d 650 (quoting State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct.App.1992) (quoting State v. Robinson, 797 P.2d 431, 435 (Utah Ct.App.1990))) (second alteration in original).

¶24 The State argues that “reasonable suspicion of further illegality,” id., existed because Cushing’s roommates perceived him to be a continuing threat. As noted above, however, this concern was neutralized when police finally removed Cushing from the apartment, cuffed him, secured him in a patrol car, and ultimately found nothing illegal on him.

¶ 25 Even assuming, however, that Cushing’s temporary foray into his apartment gave rise to reasonable suspicion because it allowed him time to secrete contraband or weapons, neither reasonable suspicion nor probable cause can justify the warrantless entry of a home. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable .... ‘It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.’ ” Pay-ton v. New York, 445 U.S. 573, 586, 588 n. 26, 100 S.Ct. 1371, 1380-81, 63 L.Ed.2d 639 (1980) (citations omitted). If probable cause to believe a search of the home will yield evidence of contraband is insufficient, then reasonable suspicion certainly will not do:

“[T]he Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch. Of course, neither reasonable suspicion nor probable cause would suffice to permit the officers to make a warrant-less entry into a person’s house for the purpose of obtaining fingerprint identification.”

Hayes v. Florida, 470 U.S. 811, 817, 105 S.Ct. 1643, 1647, 84 L.Ed.2d 705 (1985) (citation omitted).

¶ 26 Thus, the search of Cushing’s pei'son and his detainment in the patrol car cut off all possible justifications for entering and searching his apartment. That search was in no way “reasonably related in scope to the circumstances which justified [Cushing’s detainment] in the first place.” State v. Lafond, 2003 UT App 101,¶ 12, 68 P.3d 1043 (quotations and citations omitted). Although the police were justified in the initial stop and were justified in pursuing and briefly detaining Cushing based on his evasive behavior, they were entirely unjustified in expanding the scope of their search once then-reasonable suspicions were dispelled. Accordingly, the trial court correctly suppressed the evidence seized pursuant to that unreasonable search, and we affirm.

¶ 27 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge and PAMELA T. GREENWOOD, Judge.

      . This Amended Opinion replaces the Opinion issued by the court on October 9, 2003. The last sentence in the last footnote has been removed.

      . The State also challenged the trial court’s conclusion that the evidence was tainted by arguing that the evidence was seized pursuant to a valid third-party consent. It withdrew that challenge in its reply brief, however, because it became clear that the consent argument had not properly been preserved for our review.

      . The analysis in Cushing's brief goes further, arguing that his roommates’ consent to search the apartment was tainted by the illegality of Cushing’s continued detention. He maintains police exploited the improper detention in order to obtain the consent of his roommates. However, Cushing's continued detention itself did not taint the consent because the police undoubtedly would have sought and obtained consent even if Cushing had been released.


author: KITE, Justice.

text:
    2004 WY 41
    The STATE of Wyoming, Petitioner, v. Robert NEWMAN, Respondent.
    No. 03-58.
    Supreme Court of Wyoming.
    April 19, 2004.

      Representing Petitioner: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.
    Representing Respondent: Donald Cole, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] After three days of trial before a jury, the district court declared a mistrial on the basis of prosecutorial misconduct and dismissed with prejudice the charges against Robert Newman on the ground that the six-month deadline for speedy trial had passed and a second trial on re-filed charges would further exceed the deadline. The State filed a petition for review challenging the order, which this Court granted conditioned upon the parties briefing the question of the appropriateness of the State’s challenge by means of a petition for review. We hold that the petition for review is appropriate under these narrow circumstances and reverse the dismissal with prejudice, holding that the speedy trial time period ceased to run when the court granted a mistrial and, therefore, the district court abused its discretion in dismissing the case with prejudice.

ISSUES

[¶ 2] We address the following issues:

1. Whether under these unusual circumstances the State may utilize a petition for review to challenge the district court’s order of dismissal with prejudice.

2. Whether the district court erred in dismissing the case with prejudice.

FACTS

[¶ 3] Mr. Newman was charged on August 2, 2002, with aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (Michie 1997). After vacating several trial settings, the district court scheduled the trial to begin February 3, 2003. On January 30, 2003, at a re-arraignment hearing, the prosecution advised the district court the State was not ready to proceed with trial because it was waiting on a report from the state crime lab. When asked by the court what the defense’s position was on another continuance of the trial date, counsel for Mr. Newman responded:

[H]e would like to go to trial as soon as possible-[M]y client would like to proceed. I guess he would be willing to waive a speedy trial if the Court does continue this. But I will tell you, Your Honor, that he would like to proceed with this as soon as possible.

The district court vacated the February 3, 2003, trial date and the trial was re-set for March 3, 2003. On February 25, 2003, Mr. Newman filed a motion to dismiss on the basis that the speedy trial time had passed. The district court held a hearing on the motion on February 27, 2003. At the close of the hearing, the district court denied the motion and the case proceeded to trial on March 3, 2003.

[¶ 4] On the morning of the third day of trial, March 5, 2003, Mr. Newman appeared in the courtroom wearing his military uniform. In chambers, prior to trial, the prosecution raised the issue of Mr. Newman appearing in uniform, asserting that he represented to the court in his motion to dismiss that he had been demoted to errand boy and thus he should not be allowed to portray himself before the jury as a member of the United States Air Force. The district court pressed on with the trial, stating that Mr. Newman was entitled to wear his uniform. After lunch on the same day, the prosecution again raised the issue of the uniform in chambers and claimed that Mi’. Newman was violating military code by appearing in court in his uniform. The district court again declined to become involved in the issue, stating that whether or not Mr. Newman was entitled to wear his uniform was an issue for the military, not the state district court.

[¶ 5] The following day, March 6, 2003, defense counsel and the prosecution again appeared in chambers at which time defense counsel informed the district court that during the morning recess the previous day outside the presence of the jury the prosecution questioned Mr. Newman directly about why he was wearing his uniform. Defense counsel moved for a mistrial on the basis of prosecutorial misconduct. The district court heard the prosecutor’s version of the exchange and then took testimony from Mr. Newman as well as his parents and another prosecutor who were in the courtroom during the exchange. The district court found that the prosecution communicated directly with a party represented by counsel in violation of Rule 4.2 of the Wyoming Rules of Professional Conduct, held the violation was sufficient grounds for a mistrial, and dismissed the case with prejudice. The district court entered an order to that effect on March 11, 2003.

[¶ 6] On March 25, 2003, the district attorney filed a petition for writ of review in this Court, seeking reversal of the district court’s order dismissing the charges with prejudice. We issued an order to show cause why the writ should not be dismissed, questioning whether under Wyo. Stat. Ann. § 9-1-804 (LexisNexis 2003) the district attorney, as opposed to the attorney general, had the authority to pursue a criminal case in this Court. We gave the district attorney fifteen days to respond and served a copy of the show cause order on the attorney general’s office. Within that time frame, the attorney general filed an entry of appearance and response to the order. The district attorney also filed a timely response to the order to show cause. After reviewing the responses, we issued an order allowing the case to proceed. In addition to the issues raised in the petition, we asked the parties to brief the question of whether a petition for writ of review is available to the State as a means to obtain review of the district court’s order in this case.

STANDARD OF REVIEW

[¶ 7] The question of whether the State is permitted to challenge the district courts order of dismissal with prejudice by way of a petition for writ of review is purely one of law, which we consider de novo. In-nis v. State, 2003 WY 66, ¶ 8, 69 P.3d 413, ¶ 8 (Wyo.2003). The question of whether to grant a writ of review is committed to the sound discretion of this Court, the exercise of which is limited to rare and unusual cases. Wright v. State, 707 P.2d 153, 156 (Wyo.1985). Speedy trial issues are reviewed de novo by this Court. Dean v. State, 2003 WY 128, ¶ 50, 77 P.3d 692, ¶ 50 (Wyo.2003).

DISCUSSION

Availability of petition for writ of review

[¶ 8] The State contends the petition for writ of review was a proper way to seek review of the district court’s ruling. The State argues writs of certiorari are a creation of the common law, which this Court is empowered to issue in its discretion by art. 5, § 3 of the Wyoming Constitution. The State contends a petition for writ is appropriate here because a bill of exceptions would have no affect on the district court’s ruling in Mr. Newman’s case, but would instead apply only to future cases. Mr. Newman contends the law in this state has long been that a bill of exceptions provides the exclusive avenue for the State to challenge an adverse ruling by a district court in a criminal proceeding. We hold that under the particular facts of this case, a writ of review is appropriate. In reaching that result, however, we emphasize that in all but the most extraordinary circumstances a bill of exceptions provides the exclusive means for the State to challenge adverse rulings made during the trial of a criminal case.

[¶ 9] Article 5, § 3 of the Wyoming Constitution provides in relevant part as follows:

§ 3. Supreme court generally; original jurisdiction.
The supreme court shall have original jurisdiction in quo warranto and mandamus as to all state officers, and habeas corpus. The supreme court shall also have power to issue writs of mandamus, review, prohibition, habeas corpus, certiorari, and other writs necessary and proper to the complete exercise of its appellate and revi-sory jurisdiction.

Wyo. Stat. Ann. § 7-12-102 to 104 (Lexis-Nexis 2003), the statutes governing bills of exception, provide as follows:

§ 7-12-102. Right of district attorney to take exceptions; certification; rules.
The district attorney may take exceptions to any opinion or decision of the court made during the prosecution of a criminal case. Before being filed in the supreme court, the bill of exceptions shall be presented to the trial court which shall certify whether the contents of the bill are correct. If certified, the trial court shall sign the bill containing the exceptions and affix the seal of the court and the bill shall be made part of the record. The bill of exceptions shall be governed by rules as shall be promulgated by the Wyoming supreme court.
§ 7-12-103. Filing of bill by attorney general in supreme court.
Following certification of a bill of exceptions by the trial court as provided by W.S. 7-12-102, the attorney general may apply to the supreme court for permission to file the bill for review and decision upon the points presented. If the supreme court allows the bill to be filed, the judge who presided at the trial in which the bill was taken shall appoint a competent attorney to argue the case against the state and shall fix a reasonable fee for his service to be paid out of the treasury of the county in which the bill was taken.
§ 7-12-104. Decision of supreme court upon bill.
(a) If the bill of exceptions is allowed to be filed, the supreme court shall render a decision on each point presented.
(b) The decision of the supreme court shall determine the law to govern in any similar case which may be pending at the time the decision is rendered, or which may afterwards arise in the state, but shall not reverse nor in any manner affect the judgment of the court in the case in which the bill of exceptions was taken.

[¶ 10] The interpretation of these provisions has been an evolving process in Wyoming jurisprudence, with older cases holding a bill of exceptions was the exclusive means for the State to challenge adverse rulings in criminal cases and more recent cases recognizing this Court’s discretionary authority in limited circumstances to review State challenges to pre-trial rulings in criminal cases by means of a writ. In State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977 (1906), where the State sought both a bill of exceptions and a petition in error, the Court held the petition would not be considered because the Court was without authority to decide questions raised by the State in a criminal case except as provided in the bill of exceptions statutes. The Court said, “[i]t is only upon a compliance with the provisions of the statute in question that this court obtains jurisdiction to review any ruling of the district court adverse to the State in criminal prosecutions.” Id. at 979. This rule was routinely followed in Wyoming until the 1980s as reflected in State v. Ginther, 53 Wyo. 17, 77 P.2d 803, 807 (1938) (“the prosecution in a criminal case in this state is given by statute no method of review of adverse rulings except through the medium indicated in [the bill of exceptions statutes]”); State v. Benales, 365 P.2d 811 (Wyo.1961); State v. Heberling, 553 P.2d 1043, 1045, fn. 1 (Wyo.1976); State v. Selig, 635 P.2d 786, 788 (Wyo.1981) (“a bill of exceptions is the exclusive means for the prosecution to seek review of an adverse ruling made during the trial.”)

[¶ 11] The first suggestion of change in Wyoming jurisprudence with respect to the rule that a bill of exceptions was the exclusive means available to the State for obtaining review of adverse rulings in criminal cases came in Justice Raper’s concurring opinion in State v. Faltynowicz, 660 P.2d 368, 372 (Wyo.1983). The case came to the Court on the State’s petition for bill of exceptions seeking to challenge the district court’s dismissal of a misdemeanor complaint during arraignment on the ground that it did not state the year of the alleged crime. The Court granted the bill of exceptions and held that omitting the date in the complaint was not grounds for dismissing criminal charges absent prejudice to the defendant. Justice Raper agreed with the holding but expressed his view that, so long as jeopardy had not attached, the State was not confined to a bill of exceptions to obtain review of an adverse decision in a criminal case. He said:

I seriously question that the legislature has the authority to restrict our “complete” appellate jurisdiction to hear appeals taken by the State in proper cases if in fact the bill of exceptions procedure does that. There is no constitutional prohibition against the State taking an appeal in a criminal case as long as it is to an issue which would not place the defendant in jeopardy for a second time. Section 11, Art. 1, Wyoming Constitution, supra. When a statute and the constitution collide, the constitution prevails.
We can, and should, avoid the constitutional issue of the legislature’s authority to do so if we can reasonably interpret the statute in such a way that it is not viewed as unconstitutional. We can do that here by holding the design of §§ 7-12-102 through 7-12-105 to be applicable only in those cases where the defendant has been placed in jeopardy, and appeals can be taken by the state in all other cases. In other cases the State may appeal within the spirit of § 11, Art. 1, Wyoming Constitution, supra.

[¶ 12] That same year, in Wright v. State, 670 P.2d 1090, 1099 (Wyo.1983), Justice Thomas, also in a concurring opinion, expressed his support for a rule allowing the Court in exceptional cases to review pursuant to a petition for writ of review sentencing determinations made by trial judges. Citing article 5, § 3 of the Wyoming Constitution, he concluded such discretionary review was constitutionally authorized, warranted if the sentence imposed shocked the conscience of the appellate court, and appropriate where the sentence fell within the statutory parameters leaving the defendant with no valid appeal of the sentence.

Id. at 375. Thus, Justice Raper was of the view that the bill of exceptions provided the exclusive means for the State to obtain review of adverse rulings only where a defendant in a criminal ease had been placed in jeopardy.

[¶ 13] Not long thereafter, in City of Laramie v. Mengel, 671 P.2d 340 (Wyo.1983), the Court granted a writ of certiorari after the City, joined by the attorney general, sought permission to file a bill of exceptions for review of a municipal court ruling that an ordinance and statute allowing the introduction in a criminal trial of evidence of a DUI defendant’s refusal to take a blood alcohol chemical test violated the constitutional right against self-incrimination. The Court stated:

We conclude that in this instance the court appropriately exercised its discretionary authority in issuing the writ of certiorari. The City of Laramie has no appeal from the order of its judges, and it does not have available to it even the review encompassed by the statutes providing for a bill of exceptions. The issue, further is one in which the people of the City of Laramie and the people of the State of Wyoming in other cities where the ruling of the Municipal Judges of the Municipal Court of the city of Laramie might be followed have an interest. The ruling itself is premised upon constitutional grounds and makes the issue one of constitutional magnitude....
The question sought to be reviewed in this case we perceive to be one of great public import and of first impression. We therefore have concluded to exercise our authority to review the issue pursuant to a writ of certiorari in our discretion so that the matter can be conclusively ruled upon.

Id. at 345. Thus, in Mengel, the rationale for allowing a writ was that no appeal and no bill of exceptions were available to the City and the issue was one of first impression, constitutional magnitude and great public importance.

[¶ 14] Thereafter, the Court expanded Mengel by holding in State v. Heiner, 683 P.2d 629 (Wyo.1984) that it had the authority pursuant to a writ of certiorari to review a district court’s pre-trial ruling suppressing evidence in a criminal case, even though review was available to the State pursuant to a bill of exceptions. In Heiner, the State filed its petition for writ of review after the district court entered its order suppressing the evidence and before the jury was impaneled. Thus, jeopardy had not attached. This Court said:

The threshold question of the authority of this court to review these evidentiary rulings by the trial court pursuant to a writ of certiorari is settled in principle by the decision of this court in [Mengel].... We did note in [.Mengel ] that review pursuant to the statutes providing for a bill of exceptions was not available to the city. In that opinion we quoted language from Call v. Town of Afton, in which the court observed in substance that the writ of cer-tiorari subserves a good purpose in instances in which an appeal (or a bill of exceptions) is not plain, speedy and adequate. With respect to rulings which suppress important evidence to be offered by the State in a criminal prosecution the inadequacy of the bill of exceptions after an acquittal is patent....
In this case, like [Mengel], the rulings of the district court were premised upon constitutional grounds, which results in the presentation to this court of issues of constitutional magnitude. Whether constitutional protections with respect to inculpa-tory statements of an accused and evidence obtained from the person or property of the accused are to be extended to private individuals is a significant question of first impression in the State of Wyoming. Consequently, we conclude that because of the importance of the evidence suppressed or the use of which is potentially denied to the State of Wyoming; the constitutional magnitude of the issues raised; and the importance of determining the rale with respect to such matters in the State of Wyoming, the court appropriately exercised its discretion in granting the writ of certiorari in this case.

Heiner, 683 P.2d at 632 (some citations omitted). Thus, with Heiner, the law in Wyoming evolved to allow the State to file a petition for writ of review of pre-trial rulings in criminal cases where a bill of exceptions was available but inadequate, and the question for review was one of first impression, constitutional magnitude and great importance.

[¶ 15] Just a month later, the Court held in State v. Sodergren, 686 P.2d 521, 528 (Wyo.1984) that it had the authority pursuant to a writ of certiorari to review a district court’s dismissal of criminal charges, again concluding that the issue for review involved a constitutional question of great public import. As in Heiner, no jury had been impaneled and, therefore, jeopardy had not attached. It is not entirely clear whether, in granting the writ, the Sodergren Court concluded a bill of exceptions was an inadequate remedy, although arguably that can be presumed from the outcome. The State filed both a bill of exceptions and a petition for writ and the Court granted the writ. Having granted the writ, the Court held the vehicular homicide statute unconstitutional, reversed the district court’s order dismissing the case for lack of subject matter jurisdiction, and remanded for further proceedings. Addressing the appropriateness of the writ, the Court said:

The propriety of a writ of certiorari in matters such as this was decided in [Men-gel],... The issue in this case involves a constitutional question and is of great public import. However, we do serve notice on the bar that we will exercise our discretion to grant certiorari only in unusual circumstances and upon rare occasions.

Sodergren, 686 P.2d at 527-28.

[¶ 16] More recently, in State v. Welch, 873 P.2d 601 (Wyo.1994) and State v. Evans, 944 P.2d 1120, 1124 (Wyo.1997) we followed the lead of Heiner and accepted writs to review district court pre-trial rulings suppressing evidence. We said in Evans:

In this case, the district court’s decision was also premised upon constitutional grounds, presenting this Court with issues of constitutional magnitude; the record indicates that the suppression or use of the evidence is important to the prosecution of this case because of the limited amount of evidence which exists; and whether the district court made a serious error of law concerning the State’s burden of proof presents a significant question. Accordingly, we find our review to be appropriate.

Evans, 944 P.2d at 1124.

[¶ 17] Just after the Welch decision and before Evans, we decided Crozier v. State, 882 P.2d 1230, 1236 (Wyo.1994) in which we cited the Cornwell line of cases for the proposition that a bill of exceptions is the exclusive means for the prosecution to seek review of an adverse ruling in a criminal case. Crozier differs from Heiner, Sodergren, Welch and Evans in two significant ways. First, in Crozier, the State sought review by means of a cross-appeal, not a petition to file a bill of exceptions or writ of review, and so the parties never argued, and this Court did not address, whether a writ was appropriate under Crozier’s facts. Second, the State sought review of an adverse post-trial ruling entered after jeopardy had attached. In light of these differences, we set out the circumstances of Crozier in some detail.

[¶ 18] Crozier was originally charged with one count of disposing of stolen property on December 15, 1989. That case was dismissed without prejudice after it was discovered on the first day of trial with the jury seated that the wrong date was charged. The State then re-filed charges, alleging one count of possession of stolen property and one count of disposing of stolen property on November 15, 1989. Crozier moved to dismiss the second count on double jeopardy grounds and the district court reserved ruling on the motion until the evidence was presented. A jury convicted him on both counts. The district court sentenced Crozier on the first count but dismissed the second count. Crozier appealed his conviction on the first count, claiming vindictive prosecution, and the State cross-appealed asserting error in the dismissal of the second count. This Court dismissed the State’s cross-appeal, concluding there was no legislative authorization for the State to appeal in a criminal ease, and the State’s cross-appeal was in effect the same as an appeal. Our decision quoted State v. Benales, 365 P.2d 811, 812 (Wyo.1961), for the principle that “a bill of exceptions is the exclusive means for the prosecution to seek review of an adverse ruling made during the trial.” Crozier, 882 P.2d at 1236 (emphasis added).

[¶ 19] Crozier raises the question of whether a writ is appropriate in Mr. Newman’s case given that the State seeks review of an adverse ruling made during the trial. In answering this question, it is significant that in Crozier we did not have before us the question of the appropriateness of a bill of exceptions or writ of review. Given this distinction, we are reluctant to extend the Crozier holding beyond the circumstances that were before us a cross-appeal by the State from an adverse post-trial ruling in a criminal case. Additionally, Crozier cannot be considered in isolation but must be given the weight it is due in light of the other decisions bearing on the question before us. A careful reading of those decisions makes apparent the importance of other factors in determining whether review by means of a writ is appropriate under the circumstances of Mr. Newman’s case.

[¶ 20] We have said that the authority to review a trial court determination by way of a writ is available if no other plain, speedy and adequate remedy exists for the party seeking review. Mengel, 671 P.2d at 344; In Re General Adjudication of All Rights to Use Water in the Big Horn River System, 803 P.2d 61, 67 (Wyo.1990). Here, no other adequate remedy exists because a bill of exceptions would have no effect on the rulings made in this case, but would apply only in future cases as provided in § 7-12-104(b). We have also said that the authority to review a trial court determination by way of a writ is available where a question of first impression, constitutional magnitude and great public import is raised. Mengel, 671 P.2d at 345 and Heiner, 683 P.2d at 632-33. Here the question of whether the district court properly dismissed the charges with prejudice, preventing the State from re-filing them and bringing Mr. Newman to trial, is a question of first impression, constitutional magnitude and great public import involving speedy trial and separation of powers issues. Art. 1, § 9 of the Wyoming Constitution guarantees the right to a speedy trial in criminal cases. Art. 2, § 1 provides that the powers of government in Wyoming are divided into three departments: legislative, executive and judicial, none of which shall exercise powers belonging to another department. Under the latter provision, we have said:

“The prosecutive decision traditionally has been exercised by the executive department, and an attempt by the judicial branch of government to exercise that authority by purporting to foreclose the refiling of a criminal charge in the absence of a constitutional or statutory proscription is constitutionally prohibited as a violation of the separation of powers doctrine.”

Hilderbrand v. Padget, 678 P.2d 870, 872 (Wyo.1984) (citations omitted). See also Justice Thomas’ concurring opinion in Faltynowicz, 660 P.2d at 377, in which he concluded a trial court cannot inhibit the re-filing of a criminal charge without contravening the separation of powers provision. Looking at these two factors, i.e., the inadequacy of a bill of exceptions and the constitutional magnitude of the question — the State’s petition for writ of review would seem to be appropriate. However, as demonstrated by the above discussion of Wyoming jurisprudence, never before has this Court granted a petition for a writ of review filed by the State seeking review of an adverse trial ruling in a criminal case. This is so because once a jury is impaneled and a trial has commenced, jeopardy ordinarily attaches and any holding by this Court would not affect the particular case under review (i.e. jeopardy having attached, the State could not re-file the charges) but would affect instead only future cases in which the same issue arose. Under the particular facts of Mr. Newman’s case, however, where the State sought review of the district court’s order dismissing the case with prejudice after granting a defense motion for a mistrial based upon prosecutorial misconduct, different principles apply and the question of whether re-filing the charges would place Mr. Newman in jeopardy for a second time remains to be decided. Under these unusual and extraordinary circumstances, we find the writ to be appropriate.

[¶ 21] For double jeopardy to bar re-trial in a case where the district court grants a defense motion for a mistrial based upon prosecutorial misconduct, the defense must show prosecutorial intent to goad the defense into moving for a mistrial. Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). In Kennedy, the Court stated:

Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion ... does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for a mistrial constitutes “a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.” Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, “the important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.

Id. at 675-76, 102 S.Ct. 2083 (citations omitted).

[¶ 22] In Mr. Newman’s ease, the question of whether the prosecution intended to goad the defense into moving for a mistrial has not been decided. Mr. Newman moved for a mistrial based upon the prosecution’s alleged violation of the ethical rules and his constitutional right to counsel. The district court concluded the prosecution’s conduct provided grounds for a mistrial, granted the defense motion and dismissed the ease with prejudice on the basis of speedy trial concerns. The question of whether the prosecution had the intent to goad the defense into moving for a mistrial was not at issue below. The parties raised the issue in their briefs to this Court because it is relevant to the issue of double jeopardy, which in turn is directly relevant to the question of whether a writ of review or a bill of exceptions provides the avenue for the State to obtain review of an adverse ruling in a criminal case. The distinctive feature of this case is that the double jeopardy issue was not decided by the district court and, given the procedural posture of the case, cannot be decided unless and until the State re-files the charges against Mr. Newman. At that point, Mr. Newman is entitled to raise the bar of double jeopardy by presenting evidence that the prosecution intended to goad him into moving for a mistrial the first time around. Until evidence and argument is presented on the issue and the district court makes a determination based upon hearing and weighing the testimony presented, this Court has no basis upon which to review the issue. While evidence exists in the record from which it can be argued that was the prosecution’s intent, the issue is not properly before us.

[¶ 23] We hold that the writ of review is appropriate in this case. The State has no other adequate remedy, the issues presented are of constitutional magnitude and public importance and, under the particular circumstances of this case, it is not established that allowing the writ will place Mr. Newman in jeopardy for a second time. In reaching this result, however, we emphasize that this case presents rare and unusual circumstances. In the vast majority of cases, a bill of exceptions provides the exclusive avenue for the State to obtain review in a criminal case from an adverse ruling made after trial has commenced. We turn to the question of whether the district court erred in dismissing the case with prejudice.

Dismissal with prejudice

[¶ 24] In its order, the district court stated: “The trial of this case was commenced beyond the 6 month speedy trial deadline. A further delay caused by the conduct of the prosecutor would place the trial further beyond that deadline. For that reason the ease should be dismissed with prejudice.” The State argues the district court erred in dismissing the case with prejudice. The State’s argument is premised in large part upon the underlying assertion that the district court abused its discretion in granting a mistrial. Mr. Newman’s argument that the district court did not err in dismissing the charges with prejudice is likewise piggybacked upon the argument that the district court did not abuse its discretion in granting the mistrial. We hold the district court erred in dismissing the case with prejudice but do not reach the question of whether it abused its discretion in granting a mistrial because the issue is moot. The district court granted the motion for mistrial, the jury was released and any determination made at this juncture by this Court would have no practical effect on that outcome.

[¶ 25] This Court has consistently analyzed speedy trial claims under both W.R.Cr.P. 48 and the constitution. Newport v. State, 983 P.2d 1213, 1217 (Wyo.1999). Rule 48(b)(8) of the Wyoming Rules of Criminal Procedure provides:

A dismissal for lack of a speedy trial under this rule shall not bar the state from again prosecuting the defendant for the same offense unless the defendant made a written demand for a speedy trial or can demonstrate prejudice from the delay.

Considering this language, we said in Newport that Rule 48(b)

protects a defendant’s right to have a speedy original trial; however, it does not address a defendant’s right to have a speedy retrial following a mistrial. When the prosecution of a defendant is disrupted by a mistrial, the commencement of the original trial, if it was timely, satisfies the time requirements of W.R.Cr.P. 48(b), and subsequent retrials are excluded from the requirements of the rule.

Id. at 1217 (citation omitted). Thus, so long as Mr. Newman’s original trial was timely, any subsequent retrial was excluded from the requirements of the rule and the fact that such a retrial under the facts of this case necessarily would have occurred beyond the time for speedy trial was not a basis for dismissing the case with prejudice. The question for our consideration under the Rule 48 analysis, therefore, is whether the original trial commencing on March 3 was timely.

[¶ 26] Rule 48(b) of the Wyoming Rules of Criminal Procedure provides in relevant part as follows:

(b) Speedy trial.
(2) A criminal charge shall be brought to trial within 180 days following arraignment unless continued as provided in this rule.
(4) Continuances exceeding 180 days from the date of arraignment may be granted by the trial court as follows:
(B) On motion of the attorney for the state or the court if:
(i)The defendant expressly consents;
(ii)The state’s evidence is unavailable and the prosecution has exercised due diligence; or
(iii)Required in the due administration of justice and the defendant will not be substantially prejudiced; (C) If a continuance is proposed by the state or the court, the defendant shall be notified. If the defendant objects, the defendant must show in writing how the delay may prejudice the defense.

The district court granted the State’s motion to continue the trial past the 180 days because a portion of the State’s evidence was unavailable. In making that determination, the trial court concluded after a hearing that the prosecution exercised due diligence. We find nothing in the record warranting a different conclusion and hold the continuance was properly granted. Thus, the district court properly granted the State’s motion to continue the trial. Thereafter, when the 180-day period came and went and Mr. Newman filed his motion to dismiss on the basis of a speedy trial violation, he had the burden of showing how the delay prejudiced him. Given that the trial was held within two weeks of the 180-day period, we are unable to find substantial prejudice. We hold that the original trial, which commenced on March 3, was timely and satisfies the time requirements of Rule 48. Newport, 983 P.2d at 1217. Any subsequent retrial was excluded from the requirements of the rule and under Rule 48 dismissal of the case with prejudice was not appropriate.

[¶ 27] Generally, even when Rule 48 has not been violated, a speedy trial claim is subject to constitutional analysis, meaning the four-part test articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) applies. Rodiack v. State, 2002 WY 137, ¶ 11, 55 P.3d 1, ¶ 11 (Wyo.2002). This test requires us to balance 1) the length of delay; 2) the reason for delay; 3) the defendant’s assertion of his right; and 4) the prejudice to the defendant. Id. The ultimate question is whether the delay in bringing the accused to trial was unreasonable, that is, whether it substantially impaired the right of the accused to a fair trial. Id. From the record before us, we hold dismissal with prejudice after the mistrial, on the basis of speedy trial concerns, was not warranted under the constitutional analysis. One hundred and ninety-nine days passed between Mr. Newman’s arraignment and the date the district court granted the mistrial; most of that time was attributable to the court’s crowded docket and the parties’ efforts to reach a plea agreement; and no evidence was presented that delaying the trial to March 3 impaired Mr. Newman’s right to a fair trial.

[¶ 28] Given that the district court dismissed the case with prejudice and no new trial date was set, the issue of whether Mr. Newman’s speedy trial rights would be violated by the delay between the order of dismissal and any second trial is not before us. In the event the State re-files charges against Mr. Newman upon issuance of the mandate from this Court following this appeal, the speedy trial issue could arise again. For purposes of resolving the issues raised on appeal, we hold only that no speedy trial violation had occurred up to the point when the district court granted the mistrial and dismissed the case with prejudice. The district court’s conclusion that any second trial would necessarily violate Mr. Newman’s right to speedy trial was premature.

      . The re-scheduling that occurred prior to the February 3, 2003, date was due primarily to the district court’s crowded docket and efforts to join the trials of, and reach plea agreements with, Mr. Newman and his two co-defendants. The State and Mr. Newman's co-defendants reached agreements before February 3, 2003, leaving only Mr. Newman to stand trial.

      . Mr. Newman contends the petition should be dismissed because the district attorney, rather than the attorney general, requested the writ without authority to do so. He cites Wyo. Stat. Ann. § 9-1-603 (LexisNexis 2003), which requires the attorney general to "represent the state in criminal cases in the supreme court." As noted, in this case the district attorney filed the petition and the attorney general’s office entered an appearance only after being served with notice of the petition by this Court. Mr. Newman asserts the attorney general's late entry of appearance was insufficient to bring the petition into compliance with the statute. We previously considered this issue in connection with the order to show cause. Implicit in our order allowing the petition to go forward was our conclusion that the attorney general's prompt entry of appearance upon receipt of the order to show cause brought the petition into compliance with the statute.

      . Wyoming Rule of Appellate Procedure, 13.01 further provides:
      (a) All applications to the supreme court for interlocutory or extraordinary relief from orders of the district courts, including such applications as are established by statute ... may be made as petitions for a writ of review. Granting of a petition is within the discretion of the supreme court.

      . This section is preceded in the statutes by the following provision:
      § 7-12-101. Manner of appeal.
      A defendant may appeal his conviction in any criminal case in the manner provided by the Wyoming Rules of Appellate Procedure and the Wyoming Rules of Appellate Procedure for Courts of Limited Jurisdiction.

      . The majority opinion states the Court denied the petition for bill of exceptions and granted the petition for writ of review. In his dissenting opinion, Justice Rose agrees both were filed but characterizes the situation somewhat differently: "Originally, in the case at bar, the Attorney General petitioned for a bill of exceptions.... Thereafter, and for reasons which remain undisclosed — at least to me — he withdrew the petition and, in its stead, filed a petition for a writ of certiorari.” Sodergren, 686 P.2d at 531.

      . Interestingly, had this matter come before the Court on a petition for bill of exceptions, upon granting the petition we would have been obligated to answer the question.