author: THORNE, Judge: DAVIS, Judge

text:
    2003 UT App 266
    STATE of Utah, Plaintiff and Appellee, v. Matthew L. DESPAIN, Defendant and Appellant.
    No. 20010761-CA.
    Court of Appeals of Utah.
    July 25, 2003.
    Rehearing Denied Aug. 21, 2003.

      (G. Fred Metos, McCaughey & Metos, Salt Lake City, for Appellant. '
    Mark L. Shurtleff, Attorney General, Jeffrey T. Colemere, Smart Schofield Shorter & Lunceford, and Kirk M. Torgensen, Attorney Generals Office, Salt Lake City, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge:

{1 Defendant Matthew Despain appeals from his conditional guilty plea to operating a clandestine drug laboratory, a second degree felony, in violation of Utah Code Annotated Section 58-37d-4 (Supp.2001). We affirm.

BACKGROUND

T2 On November 6, 1999, Despain, his wife, and their young son were traveling southbound on SR 40, near Heber, Utah. At about midnight, near the intersection of SR 40 and SR 189, Heber City Police Officer Troy Slaugh noticed that the license plate attached to Despain's fifth wheel trailer was not properly lit. Accordingly, Slaugh called dispatch with the license plate number and learned that the vehicle belonged to Despain. Slaugh immediately recognized that he had had contact with Despain recently and that the previous contact had resulted in Despain being charged with both a narcotics violation and a concealed weapon violation.

T3 Armed with this information, Slaugh initiated a traffic stop of Despain. Despain pulled over and Slaugh parked behind the fifth-wheel trailer. Both Slaugh and his partner, Officer Rusty Olsen, then got out of the patrol car and cautiously approached Despain's vehicle. As the officers neared the bed of Despain's truck, Despain's rottweiler stood up, lunged toward Slaugh and began barking furiously, causing both officers to draw their sidearms and retreat back to the patrol car. Slaugh then yelled for Despain, who at that point had exited his truck, to meet the officers near the patrol car, away from the truck and the dog. Despain, instead, got back into the cab of the truck and closed the door, obscuring his subsequent actions from the officers' view. Slaugh again yelled to Despain, ordering him to meet the . officers by the patrol car. Despain then exited the truck and walked back to the officers.

1 4 While he walked, both officers noticed that Despain was dressed in blue jeans and a very loose, baggy shirt that hung down over his hips. When he reached the officers, Slaugh asked for Despain's driver license and registration while Olsen asked Despain if he was carrying any weapons on his person. Despain admitted that he had two knives and began reaching toward his waist. Olsen intervened, grabbing and searching Despain, whereupon he discovered and confiscated two knives. The first knife, a smaller knife with a folding blade, was attached vertically to Despain's belt and was in a secured covered sheath. The second knife, however, was a large heavy knife with a fixed blade, loosely placed in a sheath attached horizontally across Despain's belly unsecured by either a cover or a strap. After a short consultation, Slaugh placed Despain under arrest for possession of a concealed dangerous weapon. The officers then conducted a search of the vehicle incident to the arrest and discovered evidence that Despain intended to produce, or was in the process of producing, methamphetamine.

T5 Following his arrest, the State charged Despain with possession or operating a clandestine drug laboratory, possession or use of a controlled substance by a person with a prior conviction, transportation or possession of items prohibited in a correctional and mental health facility, reckless endangerment, possession of drug paraphernalia, and carrying a concealed dangerous weapon. Despain filed a motion to suppress all evidence discovered as a result of Olsen's question, arguing that the question was not supported by reasonable suspicion. Thus, Despain argues his arrest and the subsequent search of his vehicle incident to the arrest were unconstitutional.. On November 15, 2000, the trial court conducted a suppression hearing. The court then denied Despain's motion, following which Despain entered into a plea agreement with the State, pleading guilty to the clandestine drug lab charge. In accepting the plea agreement, pursuant to State v. Sery, 758 P.2d 935 (Utah Ct.App.1988), Despain preserved the suppression issue for appeal.

ANALYSIS

16 Despain argues that the trial court erred in denying his motion to suppress the evidence discovered as a result of Olsen's question concerning weapons possession. " 'We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroncous standard." " State v. Kohl, 2000 UT 35, ¶ 9, 999 P.2d 7 (quoting State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994)). "However, we review the trial court's conclusions of law based on these findings 'for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts' " Id. (quoting State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996)).

17 "To determine whether a search or a seizure is constitutionally reasonable, we must first determine whether the officer's action was ' "justified at its inception." ' " State v. Chapman, 921 P.2d 446, 450 (Utah 1996) (quoting State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (additional citation omitted). "If so, we then consider whether the resulting detention was ' "reasonably related in seope to the circumstances that justified the interference in the first place." ' " Id. (citations omitted). "[A] traffic stop is justified at its inception when 'the stop is "incident to a traffic violation committed in [an officer's] presence." ' " State v. Hansen, 2002 UT 125, ¶ 30, 63 P.3d 650 (alterations in original) (citations omitted). - Moreover, "during a traffic stop an officer 'may request a driver's license and vehicle registration, conduct a computer check, and issue a citation.' " Id. at T 31 (quoting Lopez, 873 P.2d at 1132) (additional citations omitted). " ' "Any further temporary detention for investigative questioning after [fulfilling] the purpose for the initial traffic stop" ' constitutes an illegal seizure, unless an officer has probable cause or a reasonable suspicion of a further illegality." Id. (quoting State v. Godina-Luna, 826 P.2d 652, 655 (Utah Ct.App.1992) (alteration in original) (additional citations omitted)).

T8 However, " '[wlhere 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, [or question the individual regarding the presence of weapons,] to discover weapons that might be used against him.' " State v. Warren, 2001 UT App 346, ¶ 13, 37 P.3d 270 (quoting State v. Carter, 707 P.2d 656, 659 (Utah 1985)), cert. granted, 2002 Utah LEXIS 152. However, if the Terry frisk, which may be limited to the officer simply asking about the presence of weapons, is challenged by the defendant following his arrest, "the State must [support the officer's action by] present[ing] articulable facts that would reasonably lead an objective officer to conclude that the suspect may be armed." Id. at ¶ 14 (quoting Carter, 707 P.2d at 659).

T9 In the instant case, there is no question, and Despain does not argue otherwise, that the traffic stop was justified at its inception. The license plate on Despain's fifth-wheel trailer was not properly illuminated, thus, pursuant to Utah Code Annotated Section 41-6-120(b) (1998), Slaugh and Olsen were justified in stopping Despain to cite him for the violation. However, it is also clear that Olsen's questioning of Despain concerning weapons possession lies outside the seope of the reason for the initial stop. Therefore, we must determine whether the ciream-stances that the officers encountered during the stop supported either "a reasonable suspicion of a further illegality" sufficient to justify the question, Hansen, 2002 UT 125 at ¶ 31, 63 P.3d 650, or the reasonable belief that Despain was armed and dangerous. See Warren, 2001 UT App 346 at ¶ 13, 37 P.3d 270.

10 Despain argues that the trial court erred in relying upon the prior encounter between Slaugh and Despain to support its decision that Olsen's question was supported by reasonable suspicion. We agree. However, "[i]t is well settled that we may affirm a judgment of a lower court if it is sustainable on any legal ground or theory apparent on the record." State v. Finlayson, 2000 UT 10, ¶ 31, 994 P.2d 1243.

111 In the instant case, the record supports Olsen's actions because the cireum-stances surrounding the traffic stop support a reasonable belief that Despain was armed and dangerous. " '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 "patdown" search of the individual, for question the individual regarding the presence of weapons,] to discover weapons that might be used against him.' " Warren, 2001 UT App 346 at ¶ 13, 37 P.3d 270 (quoting Carter, 707 P.2d at 659. However, if the Terry frisk, or the questioning of a citizen about the presence of a weapon, is challenged by the defendant following his arrest, "the State must present articulable facts that would reasonably lead an objective officer to conclude that the suspect may be armed." Id. at 114 (quoting Carter, 707 P.2d at 659). The basis for this policy is the recognition that "facts and circumstances unique to the particular suspect and/or factual context may give rise to a reasonable suspicion the suspect may be armed." Warren, 2001 UT App 346 at ¶ 15, 37 P.3d 270.

[ 12 Here, it was well after nightfall when the officers approached Despain's vehicle. Before they reached the cab of the truck, they were accosted by an apparently dangerous dog, prompting both officers to draw their sidearms and retreat to their patrol car where Slaugh noticed for the first time that Despain had dismounted his vehicle. Slaugh then instructed Despain to meet the officers at the patrol car, an instruction which Des-pain completely ignored. He instead reentered the cab of his truck and closed the door concealing any actions he may have taken within the truck, When Despain finally complied with Slaugh's repeated request to meet the officers at the patrol car he approached them wearing an untucked, overly-large shirt that obscured from the officers view any object that Despain may have secreted in or around his waistband.

13 Based on the factual cireumstance of this case, we conclude that an objective police officer in Olsen's position would have drawn a similar conclusion-that Despain may in fact be armed and dangerous-and that an objective officer, concerned for his safety and the safety of others, would have asked Des-pain the same question. See Warren, 2001 UT App 346 at ¶ 14, 37 P.3d 270 (quoting Carter, 707 P.2d at 659). Thus, we conclude that Olsen's question to Despain was supported by a reasonable suspicion that Des-pain was armed and dangerous.

CONCLUSION

T14 Based on Despain's conduct during the traffic stop, it was reasonable for Olsen to believe that Despain was possibly armed and dangerous. Accordingly, we affirm the trial court's denial of Despain's motion to suppress.

T 15 I CONCUR:; PAMELA T. GREENWOOD, Judge.

DAVIS, Judge

(concurring and dissenting):

{16 I concur with the majority's analysis through footnote 8, together with its recital of the law applicable to "frisk" or "patdown" searches or questions about the presence of weapons.

1 17 Since we are bound by the record and caselaw respecting Officer Olsen's apparently limited knowledge, and must approach this case accordingly, I cannot agree with the majority's conclusion that Officer Olsen had reasonable, articulable suspicion to inquire whether Despain possessed any weapons. " "Investigative questioning that further detains the driver must be supported by reasonable suspicion of more serious criminal activity. Reasonable suspicion means suspicion based on specific, articulable facts drawn from the totality of the cireumstances facing the officer at the time of the stop." " State v. Lafond, 2003 UT App 101, ¶ 13, 68 P.3d 1043 (citations omitted), cert. denied, 72 P.3d 685, 2003 Utah LEXIS 59 (Utah 2003). "The legality of a frisk for weapons[ or a question regarding 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 [Utah Code Ann. § T7i-7-16 (1999)]." Lafond, 2003 UT App 101 at ¶ 18, 68 P.3d 1043 (footnote omitted).

118 Two basic scenarios warrant a Terry frisk for weapons: (1) the "facts and cireum-stances unique to the particular suspect and/or factual context"; and (2) "the inherent nature of the crime being investigated." Id. at 119 (quotations and citations omitted). Under the first scenario, the "facts and circumstances" that "may give rise to reasonable suspicion [that al suspect may be armed" include bulges in clothing or other items appearing to be weapons; or a suspect who denies possessing a weapon, yet aggressively approaches an officer. Id. (quotations and citations omitted). Factors that do not amount to reasonable, articulable suspicion include a suspect's wearing of layered, baggy clothing; or mere nervousness not accompanied with aggressive or threatening behavior. See id. at TI 20-21.

119 Under the second scenario, the types of crimes whose nature "suggest[s] the presence of weapons include: robbery, burglary, rape, assault with weapons, homicide, and dealing in large quantities of narcotics." Id. at 119 (quotations and citations omitted). Lesser traffic offenses do not fit within this category. For lesser traffic offenses we have required "particular facts [to] lead [an] officer to believe that a suspect is armed." Id. (quotations and citations omitted).

20 Neither seenario existed in this case. Officers Slaugh and Olsen stopped Despain because the license plate light on his trailer was not lighted and after they ascertained the trailer was registered to Despain. Officer Slaugh remembered Despain from a pri- or encounter that resulted in narcotics and concealed weapon charges. Apparently, Officer Slaugh did not communicate this information to Officer Olsen, and Officer Olsen testified that he had no knowledge of Despain's prior encounter with Officer Slaugh,. The majority then holds that the following facts establish that Officer Olsen had reasonable, articulable suspicion to ask Despain about weapons: Despain approached the officers "wearing an untucked, overly large shirt that [could have] obscured any object that [he] may have [hidden] in his waistband"; Des-pain exited the cab of his truck, re-entered the cab, closed the door (thus "completely ignor[ing]" the officers), and then re-exited the cab; the officers encountered "an apparently dangerous dog" in the bed of the truck; and the traffic stop occurred at night.

{21 In my view, these cireumstances do not amount to reasonable, articulable suspi-clon. First, there was no evidence that would indicate that Officer Olsen could reasonably believe that Despain possessed weapons on his body. No evidence was presented that Despain's clothing exhibited bulges or any other indications of weapons that would warrant a question regarding weapons. See id. Rather, Officer Olsen could point only to Despain's untucked, overly large shirt that may have obscured any weapon hidden in Despain's waistband. This court has found that "baggy, layered clothing," does not amount to reasonable, articula-ble suspicion by itself. Id. at T21. Similarly, Officer Olsen's belief that Despain may have tucked away a weapon in his waistband, absent any evidence that would otherwise indicate the presence of a weapon, does not amount to reasonable, articulable suspicion. See id. (noting that "officer's testimony that he performed a patdown search because suspect ' "potentially may have been armed" ... add[ed] nothing' to the reasonable suspicion determination because 'in every encounter with a citizen by the police, the citizen may potentially be armed. " (alterations in original) (quoting People v. Dickey, 21 Cal.App.4th 952, 27 Cal.Rptr.2d 44, 46 (1994))); of. State v. White, 856 P.2d 656, 661 (Utah Ct.App.1993) (holding that "simply wearing a winter coat" is not a factor that would indicate whether a suspect was armed).

(22 Second, there was no evidence that Despain aggressively approached the officers. See Lafond, 2003 UT App 101 at ¶ 20, 68 P.3d 1043. Although Despain re-entered the cab when the officers first ordered him to approach them, he eventually complied and walked toward them. While the majority argues that Despain "completely ignored" the officers' request, this characterization is an overstatement. There is no evidence that indicates how long Despain "ignored" the officers' request to approach. The record does show that Despain exited the cab and approached the officers after the officers second order. Logic suggests that Despain re-entered the cab of his vehicle to retrieve documentation, particularly when confronted by two police officers with their dangerous weapons drawn.

123 While it makes sense for the officers to retreat from the "apparently dangerous dog," I fail to see how this creates a reasonable, articulable suspicion that Despain may have been armed. If anything, the presence of Despain's dangerous dog cuts against the notion that Despain would feel the need to carry weapons.

1 24 Finally, the majority factors the nighttime traffic stop into its reasonable, articula-ble suspicion analysis. I fail to see how a nighttime traffic stop creates a reasonable, articulable suspicion that an individual may be armed. Individuals may be armed day or night. Our law requires officers to point to "specific, articulable facts" regarding the suspect to allow an officer to conduct a Terry frisk or to question a suspect for weapons. Id. at 113 (quotations and citations omitted). The time of day of a police encounter adds nothing relevant to the reasonable, articula-ble suspicion analysis.

1 25 Based on the foregoing, I dissent from the majority's conclusion that Officer Olsen had reasonable, articulable suspicion to inquire whether Despain had any weapons.

      . Despain does not challenge the officer's search of his vehicle and trailer incident to his arrest.

      . The State urges this court to adopt a rule that would make an officer's inquiry into the presence of weapons reasonable per se regardless of whether the question is supported by other reasonable suspicion. See United States v. Holt, 264 F.3d 1215, 1225-26 (10th Cir.2001) (concluding that an officer's questioning of a motorist concerning the presence of a loaded weapon does not violate the Fourth Amendment of the United States Constitution. Thus, in the Tenth Circuit, questions concerning loaded weapons are considered to be within the normal course of a traffic stop.). Without addressing the applicability of Holt to the instant case, we decline to adopt such a rule because (1) adopting such a position would be contrary to existing supreme court doctrine, see State v. Hansen, 2002 UT 125, ¶¶ 30-32, 63 P.3d 650 (highlighting the limited and prescribed behavior allowed by police officers during the temporary detention of a citizen); and (2) our conclusion that Despain's behavior following the stop reasonably led the officers to believe that he was armed and dangerous forecloses any need to adopt the position urged by the State. Accordingly, we limit our analysis to the traditional confines of police-citizen encounters and reserve our analysis of the State's suggestion for an appropriate case.

      . The trial court relied on the prior contact between Slaugh and Despain to support its decision to deny Despain's motion to suppress. However, Slaugh merely asked Despain for his license and registration, while it was Olsen who asked Des-pain about weapons. Moreover, Olsen did not know of the prior encounter between Slaugh and Despain and the testimony of Slaugh makes clear that Olsen had no reason to believe anything more than a simple traffic stop was occurring prior to their approaching the truck to complete - the traffic stop. Accordingly, because Olsen had no history with Despain and was not aware of Slaugh's history with Despain, the trial court erred in considering the prior encounter as material to the issue.

      . Despain does not challenge the trial court's factual findings; thus, we accept them as drafted by the court.


source: Caselaw Access Project

author: THORNE, Judge: JACKSON, Presiding Judge

license: Public Domain

text:
    2003 UT App 274
    Tyler HANSEN and Workers' Compensation Fund of Utah, Plaintiffs and Appellants, v. Amanda S. EYRE and The Nature Conservancy, Defendants and Appellees.
    No. 20020498-CA.
    Court of Appeals of Utah.
    July 25, 2003.
    Rehearing Denied Aug. 19, 2003.

      Edward T. Wells and Mel S. Martin, Mel S. Martin PC, Murray, for Appellant.
    Lloyd R. Jones, Petersen & Hansen, Robert L. Janicki, and Michael K. Woolley, Strong & Hanni, Salt Lake City, for Appel-lees.
    Before Judges JACKSON, GREENWOOD, and THORNE.
   OPINION

THORNE, Judge:

{1 Appellants Tyler Hansen and the Workers' Compensation Fund appeal the trial court's denial of their motion for partial summary judgment. We affirm.

BACKGROUND

T2 On February 17, 2000, Hansen was riding his bicycle eastbound, on the left hand side of the street and against the flow of traffic, but within the confines of a marked bicycle path. As he approached the intersection of 200 South and 500 East, Amanda Eyre was waiting in her car for the flow of westbound traffic to subside so that she could turn right into the westbound lane of 200 South. When Eyre was satisfied that the flow of traffic was sufficiently light to allow her to successfully make her right turn, she accelerated around the corner. However, before Eyre could complete her turn, she and Hansen collided, injuring Hansen. When the accident occurred, both Hansen and Eyre were operating within the seope of their employment.

{3 Following the accident, Hansen, along with the Workers' Compensation Fund, filed suit. In essence, Hansen claimed that Eyre had violated various sections of the Utah Code, and at least one provision of the Salt Lake City ordinances, thereby causing the accident. Hansen filed a motion for partial summary judgment, asking the trial court to rule that Hansen "had a legal right to ride a bicycle in an eastbound direction in the designated bicycle lane on the north side of 200 South Street in Salt Lake City." Hansen based his motion on Salt Lake City, Ut., Ordinance 12.80.070 (Supp.1998) which reads, in relevant part: "It is unlawful for operators of bicyeles: ... [tlo ride upon the left-hand side of any street, except when they are within a marked bicycle lane or when riding upon a one-way street."

{4 Eyre opposed Hansen's motion, arguing that the Salt Lake City Ordinance conflicted with state law and, therefore, Hansen could not have a right to ride against the flow of traffic as a matter of law. The trial court entertained oral argument and then, in a written decision, denied Hansen's motion. In its decision, the trial court determined that the ordinance relied upon by Hansen operated outside Salt Lake City's reasonable police powers because "state law was and is (and probably always has been) clear that bicycles are to ride in the direction of motor vehicle traffic.... An ordinance that purports to allow otherwise is in conflict with state law." The trial court, however, decided to leave to the trier of fact the impact of its decision on the issue of negligence. Hansen subsequent ly petitioned the supreme court for interlocutory review. The court granted Hansen's petition and transferred the case to this court, pursuant to Utah Code Annotated seetion 78-2-2(4). See Utah Code Ann. § 78-2-2(4) (2002). We affirm.

ISSUE AND STANDARD OF REVIEW

T5 Hansen argues that the trial court erred in its statutory interpretation and, as a result, erred in denying his motion for summary judgment. Issues of statutory interpretation present questions of law that we review for correctness. See Toone v. Weber County, 2002 UT 103, ¶ 4, 57 P.3d 1079. We review the granting or denial of a summary judgment motion for correctness, with no deference given to the trial court's decision. See id.

ANALYSIS

T6 Hansen asserts that pursuant to Salt Lake City, Ut., Ordinance 12.80.070(1) (Supp. 1998) he had an absolute right to travel against the flow of traffic while in a designated bicycle lane. Therefore, he argues, the trial court erred in denying his motion for partial summary judgment. Eyre, in contrast, argues that section 12.80.070(1) conflicts with existing state law and is thus invalid. Because these statutory arguments are intertwined, we address them in concert.

T7 Well-settled rules of statutory interpretation instruct us that

[when interpreting a statute, this court looks first to the statute's plain language to determine the Legislature's intent and purpose. We read the plain language of the statute as a whole, and interpret its provisions in harmony with other statutes in the same chapter and related chapters. We follow the "cardinal rule that the general purpose, intent and purport of the whole act shall control, and that all the parts be interpreted as subsidiary and harmonious to its manifest object."

Miller v. Weaver, 2003 UT 12, ¶ 17, 66 P.3d 592 (citations omitted). Moreover,

[sItatutes are considered to be in pari materia and thus must be construed together when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object. If it is natural or reasonable to think that the understanding of the legislature or of persons affected by the statute would be influenced by another statute, then those statutes should be construed to be in pari materia, construed with reference to one another and harmonized if possible.

Utah County v. Orem City, 699 P.2d 707, 709 (Utah 1985) (footnotes omitted).

18 In this case, the statutory act in question is Utah's Traffic Rules and Regulations (Traffic Control Act). See Utah Code Ann. §§ 41-6-1 to -186 (1998 & Supp.2002). Within the Traffic Control Act, Article 11 contains the majority of the statutes applicable to the use and operation of bicycles. See id. § 41-6-88 to -90.5. However, section 41-6-84 expands the seope of applicable regulations beyond Article 11, stating: R

Except as ... specified under this article, a person operating a bicycle or any vehicle or device propelled by human power or a moped has all the rights and is subject to the provisions of this chapter applicable to the operator of any other vehicle.

Id. (emphasis added).

T9 Thus, we must begin our analysis with an examination of certain terms material to the instant case. First, Utah Code Annotated section 41-6-1(55) defines "vehicle" as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks." Id. § 41-6-1(55) (1998). Clearly then, for purposes of the Traffic Control Act, a bicycle is a vehicle. Section 41-6-1 also defines the term "roadway." See id. § 41-6-1(39). A roadway, for purposes of the Traffic Control Act, is "that portion of highway improved, designed, or ordinarily used for vehicular travel, exclusive of the sidewalk, berm, or shoulder, even though any of them are used by persons riding bicycles or other human-powered vehicles." Id. Thus, the areas of highway not considered part of the roadway include, exclusively, "berm{(s]," "shoulder[s]," and "sidewalk{s]." Id. Accordingly, by both implication and plain language, bicycle paths located on "that portion of highway improved, designed, or ordinarily used for vehicular travel" are part of the roadway and subject to the limitations of the Traffic Control Act. Id.

{10 The import of these terms to the instant case becomes clear when we examine Utah Code Annotated section 41-6-58, which states that "[on all roadways of sufficient width, a vehicle shall be operated upon the right half of the roadway." Id. § 41-6-58 (1998). Applying the definitions provided within the Traffic Control Act to section 41-6-53, "[on all roadways of sufficient width [whether or not traveling in a designated bicycle path], a [bicycle] shall be operated upon the right half of the roadway." Id. Therefore, absent a clear exception to this rule within the Traffic Control Act, Salt Lake City may not, in the exercise of its police power, allow bicycle riders to ride against the flow of traffic.

1 11 Hansen argues that such an exception exists in Utah Code Annotated section 41-6-87 (1998). Section 41-6-87, in relevant part, sets forth: "A person operating a bicycle or a moped upon a roadway at less than the normal speed of traffic at the time and place and under the conditions then existing shall ride as near as practicable to the right-hand edge of the roadway except when" the rider is "overtaking and passing another vehicle proceeding in the same direction" of travel, "preparing to make a left turn," or as "reasonably necessary" to avoid obstacles. Id. § 41-6-87(l)(a)-(c). Section 41-6-87 further states: "If a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use the path and not the roadway." Id. § 41-6-87(8) (emphasis added). We do not interpret this language to provide the exception urged by Hansen.

112 The term "adjacent" is defined to mean "not distant," "nearby," or "having the vertex and one side in common." Merriam Webster's Collegiate Dictionary 14 (10th ed.1999). In use, adjacent "may or may not imply contact but always implies absence of anything of the same kind in between." Id. Thus, section 41-6-87(8) has application only in cireumstances where a bicycle path lies not upon or within the borders of a roadway, but instead when the path lies off of, and next to, the roadway. Only when the path is adjacent to (i.e., separate from) the roadway is a rider required to use the path instead of the right edge of the roadway.

118 Under the cireumstances presented here, section 41-6-87(8) has no application because the path traveled by Hansen is a part of the roadway and not adjacent to it. Moreover, even if the facts of this case suggested that section 41-6-87(3) was applicable, under our general rules of statutory construction "the provision more specific in application governs over the more general provision." Hall v. Department of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958. Here, the Traffic Control Act specifically directs that "Toln all roadways of sufficient width, a vehicle shall be operated upon the right half of the roadway." Utah Code Ann. § 41-6-538. In contrast, section 41-6-87(8) is silent concerning the direction of travel required or allowed. See id. § 41-6-87(8). Accordingly, the specific language of section 41-6-58 governs the direction of travel that vehicles, including bicycles, must follow when on a roadway. Thus, bicycles, like cars, must "operate[ ] on the right half of the roadway," and must conform with the flow of traffic applicable to all vehicles. Id. § 41-6-58.

T14 Finally, while not controlling in this case, effective April 30, 2001, the Legislature amended section 41-6-87 to include the following language: "A person operating a bicycle or moped on a highway shall operate in the designated direction of traffic." Utah Code Ann. $ 41-6-87(2) (Supp.2002). This language reinforces the notion that the Legislature never intended to permit bicycle traffic to flow against the direction of traffic, regardless of the existence of bicycle paths.

CONCLUSION

115 We affirm the trial court's decision denying Hansen's motion for partial summary judgment. Moreover, we conclude that to the extent that subsection one of Salt Lake City, Ut., Ordinance 12.80.070 permits the riding of a bicycle against the flow of traffic, it is invalid.

{16 I CONCUR: PAMELA T. GREENWOOD, Judge.

JACKSON, Presiding Judge

(dissenting):

T17 I respectfully dissent from my colleagues' decision. Although the majority opinion makes a persuasive case for affirming the trial court's decision, I believe that to construe Utah Code Ann. § 41-6-87(1) (1998) as the majority has done poses several problems. These problems arise as the result of a statutory scheme that is hardly a model of clarity and consistency.

When construing a statute, we look first to the plain meaning of the words used and their statutory context. The plain language rule also requires that we give effect to all the terms of a statute so that no one provision is construed in isolation. Furthermore, " 'if doubt or uncertainty exists as to the meaning or application of an act's provisions, the Court should analyze the act in its entirety and harmonize its provisions in accordance with the legislative intent and purpose." "

Kimball Condos. Owners Ass'n v. County Bd. of Equalization, 943 P.2d 642, 648 (Utah 1997) (citations omitted). Further, "when two statutory provisions conflict in their operation, the provision more specific in application governs over the more general provision." Hall v. Department of Corr., 2001 UT 34, ¶ 10, 24 P.3d 958.

{ 18 When reading the statute as a whole, I would conclude the trial court erred by ruling that section 41-6-87 prohibits the use of a left-hand bicycle path. It is true that section 41-6-87(1) sets forth a general rule requiring bicyclists to "ride as near as practicable to the right-hand edge of the roadway." Utah Code Ann. § 41-6-87(1). However, it seems clear to me that subsection (1) does not apply in cases where a roadway has an adjacent bicycle path, since it never mentions bicycle paths and since subsection (8) does.

119 Subsection (8) requires the use of a bicycle path when one exists. See Utah Code Ann. § 41-6-87(8). Thus, while subsection (1) certainly sets forth a rule of general application, it does not govern the specific situation where a bicycle path exists. Thus, "the provision more specific in application [subsection (8)] governs over the more general provision [subsection (1)]." Hall, 2001 UT 34 at ¶ 10, 24 P.3d 958.

T 20 To conclude otherwise, as the majority does, would pose at least three serious problems that would prevent us from harmonizing all portions of the statute. First, if we concluded that subsection (1) requires bicyclists to stay to the right side of the roadway even when a left-hand bicycle path exists, we would necessarily create an exception to subsection (8) that the legislature did not include. Specifically, subsection (8) provides that "[Ilf a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use the path and not the roadway." Utah Code Ann. § 41-6-87(8). It does not say "bicycle riders shall use the path and not the roadway, unless the path is on the left-hand side of the roadway." Subsection (8) requires the use of an existing bicycle path without limitation as to which direction the bicyclist must ride, and does not limit bicyclists to one side of the road.

1[ 21 Second, to construe section 41-6-87 as the majority does renders subsection (8) inoperable. If we concluded that subsection (1) required bicyclists to ride on the right side of the road and precluded them from riding in a left-hand bicycle path, then subsection (8) would be inoperable whether there is a bicycle path on either side or both sides. See Utah Code Ann. § 41-6-87(1) (requiring bicyclist to stay to the far right of the "roadway"); Utah Code Ann. § 41-6-1(89) (defining "roadway" as "that portion of highway ... ordinarily used for vehicular travel"). The bicyclist would then be required to ignore the specific mandate to ride in the designated bicycle path, whether adjacent to the right or the left of the roadway, and follow the more general rule by staying as far to the right of the roadway as possible.

122 Third, such a construction would render subsections (1) and (8) contradictory, thus subverting the rule that we must " © "harmonize its provisions." ' " Kimball, 9483 P.2d at 648 (citations omitted). If a bicyclist stays to the far right of the roadway where a left-hand, but no right-hand bicycle path exists, she would violate the mandate of subsection (8) to ride in the designated bicycle path. On the other hand, if she followed the mandate of subsection (8) by riding in the designated bicycle path, she would violate the general provisions of subsection (1) that require her to stay to the far right of the roadway.

1 23 In order to harmonize and give effect to all portions of section 41-6-87, I would conclude that subsection (1) sets forth a general rule that does not contemplate a roadway with designated bicycle paths. Instead, subsection (8) applies and requires the use of a bicycle path where one exists. Further, section 41-6-87 does not prohibit the use of a left-hand bicycle path, and I would hold a rider may use the left-hand bicycle path regardless of whether a right-hand path also exists.

«[ 24 Thus, I believe the trial court erred in concluding Utah Code Ann. § 41-6-87(1) (1998) prohibits the use of a left-hand bicycle path. I believe the trial court further erred in concluding that, because Salt Lake City, Ut., Ordinances § 12.80.070(I) (1989) expressly permits the use of a left-hand bicycle path in contradiction to section 41-6-87, it is therefore invalid. Finally, I believe the trial court erred in ruling that "[t]he jury instructions will have to be properly tailored that [Hansen] was not justified by ordinance nor state law in traveling in the direction he was against traffic." Accordingly, I would reverse the trial court's denial of Hansen's summary judgment motion with respect to this issue and remand.

      . Eyre also filed a cross-motion for summary judgment on the same subject, which the trial court later denied. However, the disposition of Eyre's motion is not at issue in this appeal.

      . Utah's Traffic Code expressly denies to local authorities the power to create rules or ordinances that conflict with existing state law. See Utah Code Ann. § 46-6-16 (1998) ("A local authority may not enact or enforce any rule or ordinance in conflict with the provisions of this chapter.").

      . The parties agree that there is no dispute as to the material facts of this case. Thus, we focus our examination on the correctness of the trial court's legal conclusions.

      . Utah Code Annotated section 41-6-53 articulates four exceptions to this rule, none of which involve bicycles. See Utah Code Ann. § 41-6-53(1)(a)-(d) (1998).

      . Hansen presented two additional issues on appeal, both of which essentially take the form of requesting from this court a ruling that would foreclose the issue of comparative negligence on remand. However, neither issue comports with the requirements of rule 24 of the Utah Rules of Appellate Procedure. See Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 ("An issue is inadequately briefed when the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." (quotations and citation omitted)). Thus, we do not address either point. Moreover, from our reading of the record, the trial court has yet to issue any definitive ruling on these issues, thus, without a final order concerning these matters, we are without jurisdiction to address them. See State v. Norris, 2002 UT App 305, ¶ 7, 57 P.3d 238 ("[Without a final order on the record, [this] court has no jurisdiction to hear an appeal.").


author: VOIGT, Justice. GOLDEN, J.,

text:
    2003 WY 96
    Edward A. FENDER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-29.
    Supreme Court of Wyoming.
    Aug. 19, 2003.

      Representing Appellant: Kenneth M. Ko-ski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Will Bierman, Deputy Public Defender.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[T1] Edward A. Fender (appellant) entered a conditional "no contest" plea to possession of marijuana in violation of Wyo. Stat, Ann. § 35-7-1031(c)@)(A) (LexisNexis 2003), a misdemeanor. On appeal, appellant challenges the district court's denial of his motion to suppress a baggie of marijuana seized from his pants pocket. We affirm.

ISSUES

[¶ 2] Appellant phrases the issues on appeal as follows:

Whether the trial court erred when it denied Mr. Fender's motion to suppress because (1) his presence as a passenger in a car in which two other occupants were arrested on outstanding warrants for failure to appear did not provide reasonable articulable suspicion to warrant a pat-down search and (2) the pocket bulge seen and felt by the officer could not have appeared to be a weapon?

The State phrases the issue thus: "Did the district court err in denying appellant's motion to suppress?"

FACTS

[T3] At approximately 7:19 p.m. on June 30, 2001, Wyoming Highway Patrol Trooper Douglas Deskin (Deskin) stopped a gold Chrysler Sebring for speeding on Wyoming Highway 113 in Crook County. The vehicle contained four male occupants. Deskin contacted the driver, Michael Stensland (Stens-land), age eighteen, who informed the officer that he did not have a driver's license with him, but provided the officer his name and date of birth. Deskin noticed a "slight odor" of aleohol about Stensland, and in determining whether Stensland had a valid driver's license, Deskin discovered an active "failure to appear" warrant for Stensland's arrest in Crook County. Deskin requested backup assistance, and onee another officer arrived, Deskin approached Stensland, informed him of the warrant, arrested him, and placed him into Deskin's patrol vehicle.

[¶ 4] Stensland stated that he wanted the Sebring's right rear passenger to drive the Sebring in Stensland's absence. That passenger, Nathan Luth (Luth), age nineteen, provided Deskin a driver's license, and in determining whether the license was valid, Deskin discovered an active "failure to appear" warrant for Luth's arrest in Campbell County. Deskin noticed a "smell" of alcohol about Luth, informed him of the warrant, and arrested him. In searching Luth's person, Deskin discovered ZigZag paper and a "warm" tin can containing a green leafy substance Deskin believed to be marijuana and the endings of three joints, a "little smoke coming off of the butts as if they were just smoked." Deskin had Luth sit on the ground near the right front of Deskin's patrol vehicle.

[T5] For "officer safety," Deskin then contacted the Sebring's left rear passenger, appellant, age twenty-one, while the other officer simultaneously contacted the Sebr-ing's right front passenger, Rickie Fischer (Fischer). Appellant gave Deskin a South Carolina driver's license. Deskin asked appellant to "step out" of the vehicle and at some point placed appellant in handcuffs for "officer safety." Deskin then overheard that the other officer had discovered an active "failure to appear" warrant for Fischer's arrest in Campbell County. |

[T6] Deskin decided to initiate a "pat down search" of appellant "to see if he had any weapons or anything that could" be "sed against" the officers. Deskin visually noticed a bulge in appellant's left front pocket. Deskin testified as follows regarding his pat-down of appellant's pants:

Q. What did you feel when you did that?
A. - There was a bulge in the front of his pants that could have been almost anything. It could resemble anything from loose change to something within his pants to a knife. I had no idea what it was.
Q. So what did you do?
A. I reached inside to determine what was inside of his pants and pulled out a baggy full of green leafy material which I recognized from my training as marihuana.

Appellant was ultimately arrested. A search of the vehicle yielded two twelve-packs of beer, a marijuana pipe or paraphernalia, and a baggy containing a crystal substance later identified as tree resin. According to Des-kin, appellant admitted that the pipe was his.

[T7] Appellant moved to suppress the baggie Deskin discovered in appellant's pants pocket. After a hearing, during which hearing the district court heard Deskin's testimony and trial counsel's argument based on that testimony, the district court denied the motion. The district court found that the search "for weapons was a reasonable search under the circumstances" and, relying on Perry v. State, 927 P.2d 1158 (Wyo.1996), stated that the "concern for officer safety in the context of a lawful arrest allows an officer the right to frisk companions of an arres-tee for the possible concealment of weapons."

[T8] Appellant subsequently entered a conditional "no contest" plea (preserving his right to appeal the district court's suppression ruling) to possession of marijuana in violation of Wyo. Stat. Ann. § 35-7T-1031(c)(N(A), a misdemeanor, and appeals from the judgment and sentence issued pursuant to that plea.

STANDARD OF REVIEW

[¶ 9] Our standard of review is as follows:

Findings on factual issues made by the district court considering a motion to suppress are not disturbed on appeal unless they are clearly erroncous. Wilson v. State, 874 P.2d 215, 218 (Wyo.1994). Since the district court conducts the hearing on the motion to suppress and has the opportunity to assess the credibility of the witnesses, weigh the evidence, and make the necessary inferences, deductions, and conclusions, evidence is viewed in the light most favorable to the district court's determination. Id. The issue of law, whether an unreasonable search or seizure has occurred in violation of constitutional rights, is reviewed de novo. Id.; Brown v. State, 944 P.2d 1168, 1170-71 (Wyo.1997).

McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999).

DISCUSSION

[¥ 10] Appellant argues that Deskin's pat-down of appellant was based on "no more than [appellant's] association" with the vehicle's other occupants, not a reasonable articu-lable suspicion that appellant was armed or dangerous, and therefore violated the Fourth Amendment to the United States Constitution and Wyo. Const. art. 1, § 4. A great deal of appellant's argument concerns the propriety of evaluating the cireumstances of the instant case according to what appellant characterizes as a literal or categorical application of the so-called " 'automatic-companion rule' " referenced in Perry, 927 P.2d 1158, as opposed to a "totality of the cireumstances" approach, which approach appellant advocates. However, the State does not argue that the pat-down of appellant was justified by a literal or categorical application of the automatic companion rule, but rather that the pat-down was reasonable under the totality of the cireumstances.

[T11] We will first resolve appellant's arguments regarding Wyo. Const. art. 1, § 4. "A state constitutional analysis is required unless a party desires to have an issue decided solely under the Federal Constitution." Damato v. State, 2003 WY 13, ¶ 8, 64 P.3d 700, 704 (Wyo.2003). Appellant argues that a "categorical" approach based on the automatic companion rule is inconsistent with Wyo. Const. art. 1, § 4 because in Vasquez v. State, 990 P.2d 476 (Wyo.1999), this Court interpreted that section to provide greater protection than the Fourth Amendment to the United States Constitution and rejected a bright-line or categorical approach in favor of a totality of the circumstances approach. Since the State has not advocated for such a categorical approach, we need not address this argument.

[¥12] Appellant also summarily argues that merely because Wyo. Const. art. 1, § 4 has been interpreted to provide greater protection than the Fourth Amendment to the United States Constitution based on the issues presented in Vasquez, Deskin's pat-down in the instant case violated the Wyoming Constitution. Appellant's analysis on this issue does not constitute the "precise, analytically sound approach [required] when advancing an argument to independently interpret the state constitution." Vasquez, 990 P.2d at 484. A failure to present proper argument supporting " 'adequate and independent state grounds, ... prevents this court, as a matter of policy, from considering other than the federal constitutional principles at issue...." Wilson v. State, 874 P.2d 215, 219 (Wyo.1994) (quoting Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). See also Meek v. State, 2002 WY 1, ¶ 7 n. 2, 37 P.3d 1279, 1282 n. 2 (Wyo.2002).

[T13] The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. Generally, the "three tiers of police-citizen encounters" include

"communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief 'seizures' that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause."

Perry, 927 P.2d at 1163 (quoting United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982)).

An investigatory or Terry stop represents a seizure which implicates the Fourth Amendment, requiring the presence of specific, articulable facts and rational inferences giving rise to a reasonable suspicion that a person has committed or may be committing a crime. Wilson v. State, 874 P.2d 215, 219-220 (Wyo.1994) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); see also McChesney v. State, 988 P.2d 1071, 1074 (Wyo.1999). There is a dual inquiry for evaluating the reasonableness of an investigatory stop: (1) whether the officer's actions were justified at the inception; and (2) whether it was reasonably related in scope to the cireumstances which justified the interference in the first instance. Wilson, 874 P.2d at 223 (quoting United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 680, 83 LEd.2d 604 (1985) and Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879)). The conduct of an officer is judged by an objective standard which takes into account the totality of the cireumstances. Terry, 392 U.S. at 21-22, 88 S.Ct. at 1879-81; United States v. Lang, 81 F.3d 955, 965 (10th Cir.1996).

Putnam v. State, 995 P.2d 632, 637 (Wyo.2000). Appellant does not question the propriety of the initial stop or whether Deskin's actions were justified at the inception of the encounter.

[¶ 14] In making a routine traf-fie stop,

"a law enforcement officer may: request a driver's license and vehicle registration; run a computer check; and issue a citation." Burgos-Seberos v. State, 969 P.2d 1131, 1133 (Wyo.1998) (citing United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997)); see also, Wilson, 874 P.2d at 224. Generally, the driver must be allowed to proceed without further delay once the officer determines that the driver has a valid license and is entitled to operate the vehicle. Burgos-Seberos, 969 P.2d at 1133. "In the absence of the particular individual's valid consent, an officer may expand an investigative detention only if there exists an 'objectively reasonable and articulable suspicion' that criminal activity has occurred or is occurring." United States v. Williams, 271 F.3d 1262, 1267 (10th Cir.2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1610, 152 LEd.2d 624 (2002) (citing United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998))....
... [(Aln officer ... may conduct a pat-down search if he or she harbors an articu-lable and reasonable suspicion that the person is armed and dangerous. Knowles v. Iowa, 525 U.S. 113, 117-18, 119 S.Ct. 484, 488, 142 L.Ed.2d 492 (1998) (citing [Pennsylvania v.] Mimms, 434 U.S. [106] at 111, 98 S.Ct. [330] at 334-35 [54 L.Ed.2d 331 (1977)], and Terry, 392 U.S. at 27, 88 S.Ct. at 1883)....

We find that the analysis of the factors supporting reasonable suspicion should be governed by United States v. Wood, 106 F.3d 942 (10th Cir.1997). As the Tenth Circuit stated in Wood, we must determine if the totality of the cireumstances demonstrates the existence of objectively reasonable suspicion. ... Id. at 946.

"The 'whole picture' must be taken into account. Common sense and ordinary human experience are to be employed, and deference is to be accorded a law enforcement officer's ability to distinguish between innocent and suspicious actions. Inchoate suspicions and unpar-ticularized hunches, however, do not provide reasonable suspicion. Even though reasonable suspicion may be founded upon factors consistent with innocent travel, some facts must be out-rightly dismissed as so innocent or susceptible to varying interpretations as to be innocuous. We therefore examine, both individually and in the aggregate, the factors found by the trooper and the district court to give rise to reasonable suspicion to detain. ..."

Id. ...

The Court has said:

"Articulating precisely what 'reasonable suspicion' and 'probable cause' mean is not possible. They are commonsense, nontechnical conceptions that deal with ' "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ' Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)); see United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-1586, 104 L.Ed.2d 1 (1989). As such, the standards are 'not readily, or even usefully, reduced to a neat set of legal rules.! Gates, supra, at 232, 103 S.Ct. at 2329. We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 694-696, 66 LEd.2d 621 (1981), and probable cause to search as existing where the known facts and cireum-stances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176, 69 S.Ct. at 1310-1311; Gates, supra, at 238, 103 S.Ct. at 2332."

Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 1661, 134 L.Ed.2d 911 (1996).

The Tenth Cireuit has recently distinguished between reasonable suspicion and probable cause:

"Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause."

United States v. Tuter, 240 F.3d 1292, 1296 n. 2 (10th Cir.), cert. denied, 534 U.S. 886, 122 S.Ct. 195, 151 L.Ed.2d 137 (2001) (citing Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

Damato, 2003 WY 13, ¶¶ 13-18, 64 P.3d at 706-08.

[T15] Deskin stopped the vehicle, containing four male occupants traveling together, for speeding at an evening hour on what appears to have been a rural highway in Crook County. The officer determined that the driver, age eighteen, and the right rear passenger, age nineteen, were both subjects of active arrest warrants. Both individuals also smelled of alcohol, and the right rear passenger possessed a tin can containing suspected marijuana and the endings of three "joints" with "smoke coming off of the butts as if they were just smoked."

[T16] Deskin asked appellant, the left rear passenger, to step out of the vehicle and appellant produced a South Carolina driver's license. 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).

On the public interest side of the balance, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver or passenger. Regrettably, traffic stops may be dangerous encounters.... In the case of passengers, the danger of the officer's standing in the path of oncoming traffic would not be present except in the case of a passenger in the left rear seat, but the fact that there is more than one occupant of the vehicle increases the possible sources of harm to the officer.
On the personal liberty side of the balance, the case for the passengers is in one sense stronger than that for the driver. There is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain the passengers. But as a practical matter, the passengers are already stopped by virtue of the stop of the vehicle. The only change in their cireumstances which will result from ordering them out of the car is that they will be outside of, rather than inside of, the stopped car. Outside the car, the passengers will be denied access to any possible weapon that might be concealed in the interior of the passenger compartment. It would seem that the possibility of a violent encounter stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop. And the motivation of a passenger to employ violence to prevent apprehension of such a crime is every bit as great as that of the driver.
In summary, danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal.

Id. at 413-15, 117 S.Ct. 882 (footnote omitted).

[¶ 17] At some point thereafter, Deskin also placed appellant in handcuffs for "officer safety." Appellant does not argue that placing appellant in handcuffs transformed the encounter to that of a full-scale arrest and, except for one isolated, concluso-ry statement in his appellate brief, appellant does not otherwise question the officer's use of handcuffs.

In Terry, the Supreme Court of the United States forcefully relied upon the necessity to preserve officer safety in potentially explosive situations:
"In addition [to the government's interest in investigating crime], there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties."
Terry, 392 U.S. at 23, 88 S.Ct. at 1881[.]

Perry, 927 P.2d at 1164 (emphasis in original). " 'Since police officers should not be required to take unnecessary risks in performing their duties, they are "authorized to take such steps as [are] reasonably necessary to protect their personal safety and maintain the status quo during the course of [a Terry ] stop." '" Putnam, 995 P.2d at 637-38 (quoting United States v. Lang, 81 F.3d 955, 966 (10th Cir.1996)); see also United States v. Shareef, 100 F.3d 1491, 1502 (10th Cir.1996). Because "safety may require the police to freeze temporarily a potentially dangerous situation, both the display of firearms and the use of handcuffs may be part of a reasonable Terry stop." United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993).

"[T]he use of firearms, handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a full custodial arrest-for which probable cause is required-when the cireumstances reasonably warrant such measures." United States v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir.1994).... Such measures are warranted however, only if "the facts available to the officer would warrant a man of reasonable caution in the belief that the action taken was appropriate." Id.

Shareef, 100 F.3d at 1502; see also Eckenrod v. State, 2003 WY 51, ¶ 16, 67 P.3d 635, 640 (Wyo.2003); Brown v. State, 944 P.2d 1168, 1172 (Wyo.1997); and United States v. Perdue, 8 F.3d 1455, 1462-63 (10th Cir.1993). In determining whether an officer's conduct during an investigatory stop is reasonable, a court " 'should take care to consider whether police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing! " Shareef, 100 F.3d at 1505 (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.E.2d 605 (1985)). A "Terry investigation ... involves a police investigation 'at close range, Terry, 392 U.S., at 24, 88 S.Ct. 1868, when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a 'quick decision as to how to protect himself and others from possible danger....' " Long, 463 U.S. at 1052, 103 S.Ct. 3469 (emphasis in original).

[¶ 18] Considering the totality of the cireumstances at this point in the encounter, and especially appellant's lack of cogent argument on the issue, we do not feel compelled to second-guess the officer's decision in the instant case that his safety required briefly handeuffing appellant. We also note how apparently swiftly the situation developed from a stop for a speeding violation to one involving alcohol consumption, evidence of marijuana use and possession, and the officer's discovery that first the driver, and also the right rear passenger, were the subjects of active arrest warrants. Our consideration of these cireumstances does not mean that law enforcement is automatically authorized to employ restrictive procedures of this nature in every investigatory detention.

[¶ 19] Deskin then learned that the right front passenger, too, was the subject of an active arrest warrant, and also visually noticed a suspicious bulge in appellant's left front pocket. By this time, the existing circumstances included the following:

1. Deskin stopped the vehicle for speeding at an evening hour on what appears to have been a rural highway.

2. The vehicle contained four male occupants. Until appellant was ultimately arrested for the instant offense, only two law enforcement officers were present during the encounter with the vehicle's four occupants.

8. The four occupants were traveling together in the confined space of the vehicle and were expecting "a good evening at the lake...." The driver, age eighteen, and the right rear passenger, age nineteen, smelled of alcohol. The right rear passenger possessed a "warm" can containing suspected marijuana and the ends of three "joints" with smoke coming off them "as if they were just smoked." Appellant was the left rear passenger.

4. The vehicle's driver, right front passenger, and right rear passenger were the subjects of active arrest warrants for failure to appear.

5. In close proximity to appellant, Deskin visually noticed a suspicious bulge in appellant's left front pocket.

[¶ 20] We find that the totality of the cireumstances, and the rational inferences accompanying them, objectively demonstrate the requisite level of suspicion for Deskin to have determined whether appellant indeed possessed a weapon of some kind. Such a pat-down "necessitates a limited intrusion extending to 'the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. "_ Perry, 927 P.2d at 1164 (quoting Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968)). Accordingly, Deskin acted reasonably in conducting the pat-down of appellant's pants, and it did not exceed the scope of the cireumstances which justified the interference.

"The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the cireumstances would be warranted in the belief that his safety or that of others was in danger.... And in determining whether the officer acted reasonably in such circumstances, due weight must be given ... to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."

Putnam, 995 P.2d at 637 (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).

[¥211 Appellant next argues that even if Deskin acted reasonably in conducting the pat-down, the officer "had no basis to extend that into a search of [appellant's] pocket and a seizure of its contents." According to appellant, neither Deskin's "description of what he felt, nor what he actually removed from [appellant's] pocket, supports the conclusion that before he searched the pocket he believed it contained a weapon." (Emphasis in original.)

[¶ 22] In Perry, 927 P.2d at 1164-65, we stated the following:

The pat-down search itself, however, must "be confined in seope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Terry, 392 U.S. at 29, 88 S.Ct. at 1884.
The law does not require the officer to be absolutely certain the object felt is a weapon. A leading treatise sets out the appropriate standard.
"Under the better view, then, a search is not permissible when the object felt is soft in nature. If the object felt is hard, then the question is whether its 'size or density' is such that it might be a weapon. But because 'weapons are not always of an easily discernable shape, it is not inevitably essential that the officer feel the outline of a pistol or something of that nature. Somewhat more leeway must be allowed upon 'the feeling of a hard object of substantial size, the precise shape or nature of which is not discernible through outer clothing, oak »
Wayne R. Lafave & Jerold H. Israel, Search and Seizure § 9.5(c) (8d ed.1996).

In Perry, the officer "encountered a hard object, approximately five inches long and three-quarters of an inch wide" and testified that he "didn't know" if the object was a weapon. Perry, 927 P.2d at 1164. We found that because the object the officer encountered was "a hard object of substantial size" with an imprecise shape or nature "not dis-cernable through outer clothing," the object "reasonably could have been a weapon" and the officer was "justified in determining whether it was or not." Id. at 1165.

[¶ 24] Affirmed.

GOLDEN, J.,

dissenting.

[¶ 25] Although I agree with the Court's opinion on the first issue, I respectfully disagree with its opinion on the second issue. Officer Deskin testified that when he patted down Mr. Fender he felt "a bulge ... that could have been almost anything ... from loose change to something within his pants to a knife. I had no idea what it was." Without further probing the contour or mass of the unseen but felt object until he negated the possibility that Mr. Fender possessed a knife or some other such obvious weapon that Mr. Fender could use to harm the officer, which additional probing is not prohibited by Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), Officer Deskin reached into Mr. Fender's pocket and pulled out a baggy containing a green leafy substance.

[¶ 26] I agree with the Court's statement that "more precise testimony would have been helpful in evaluating this issue." I disagree with the Court's statement that "it is rational to infer from the officer's testimony that the object in [Mr. Fender's] pants pocket was hard (the object felt as if it could have been loose change or a knife, both of which items possess characteristics indicative of a hard object), was of a size or density that it could have been a knife. ..." I disagree that it is rational to infer from the officer's ambiguous and equivocal testimony that the object was hard. The officer testified that the bulge "could have been almost anything from ... loose change to something within his pamts to a knife. I had no idea what it was." (Emphasis supplied). The officer's testimony reveals nothing about the object's size, shape, density or rigidity. Because the test is an objective one, I am unable to conclude from such ambiguous and equivocal testimony that a reasonable officer in those circumstances would have believed that the item could likely be a weapon.

[¶ 23] The district court found in the instant case that Deskin discovered a "large bulge" in appellant's left front pocket. Des-kin did not testify that the bulge was "large" per se, but that the bulge he felt "could resemble anything from loose change to something within his pants to a knife." Although more precise testimony would have been helpful in evaluating this issue, it is rational to infer from the officer's testimony that the object in appellant's pants pocket was hard (the object felt as if it could have been loose change or a knife, both of which items possess characteristics indicative of a hard object), was of a size or density that it could have been a knife, and that the object's precise shape or nature was not discernible through appellant's clothing. Based on the facts presented in the instant case, we conclude that the object reasonably could have been a weapon such as some form of a knife, and Deskin was justified in determining whether it was indeed a weapon.

      . According to Deskin, due to a fireworks display at Keyhole Reservoir on that date, he was patrolling Highway 113 with stationary radar. Highway 113 is a "byway from U.S. 14 to Pine Haven or also to the reservoir."

      . Deskin "wanted to make sure he has a valid driver's license so that he can drive the car. I didn't want somebody who was suspended or had an expired license to operate that vehicle."

      . Wyo. Const. art. 1, § 4 provides:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.

      . "It is logical and completely reasonable to infer that a person under the influence may be more likely to commit an impulsive violent act against a police officer than one who is sober." State v. McGill, 2000 WI 38, ¶ 31, 234 Wis.2d 560, 609 N.W.2d 795, 803, cert. denied, 531 U.S. 906, 121 S.Ct. 250, 148 L.Ed.2d 180 (2000). The Wisconsin Supreme Court went on to state that the "odor of intoxicants and marijuana (and the commonsense inference that the defendant was under the influence and therefore potentially more dangerous to the officer) represents only one piece of the total factual picture here and therefore only part of the ... justification for this frisk." Id., 2000 WI 38, 131 n. 3, 609 N.W.2d at 803 n. 3. Similarly, if an individual had been consuming alcoholic beverages, "his judgment might have been impaired and his inhibitions reduced. In such a state [he] might be more likely to resort to violence as a perceived solution to the apparent impending ... investigation." United States v. Sanders, 994 F.2d 200, 207 (5th Cir.), cert. denied, 510 U.S. 955, 114 S.Ct. 408, 126 L.Ed.2d 355, cert. denied, 510 U.S. 1014, 114 S.Ct. 608, 126 L.Ed.2d 572 (1993).
      See generally United States v. Hishaw, 235 F.3d 565, 570-71 (10th Cir.2000), cert. denied, 533 U.S. 908, 121 S.Ct. 2254, 150 L.Ed.2d 241 (2001) and People v. Hardrick, 60 P.3d 264, 267-68 (Colo.2002) ("although no weapons were found at the scene, drugs were found, thus increasing the risk of violence").

      . But assume arguendo that we were now to hold that, under Terry, the police could not frisk [an individual] once he was handcuffed; and further assume that the police could not otherwise develop probable cause sufficient to arrest him, but that they still had reasonable grounds to believe that he was armed and presently dangerous. What options would remain? - Clearly, the police could not keep [the individual] handcuffed indefinitely. But neither could they simply remove the handcuffs, for then the danger would return in full force, again justifying the officers' frisking of [the individual] for weapons. Continuing, if the officers were again to handcuff [the individual] so that they could accomplish the frisk in relative safety, the danger justifying a frisk would again cease to exist. The circular nature of this premise is obvious and need not be pursued ad absurdum, for it is built on a flawed foundation.
      [The] argument is entirely dependent on the assumption that, by handcuffing a suspect, the police instantly and completely eliminate all risks that the suspect will flee or do them harm. As is sadly borne out in the statistics for police officers killed and assaulted in the line of duty each year, however, this assumption has no basis in fact. '
      Handcuffs are a temporary restraining device; they limit but do not eliminate a person's ability to perform various acts. They obviously do not impair a person's ability to use his legs and feet, whether to walk, run, or kick. Handcuffs do limit a person's ability to use his hands and arms, but the degree of the effectiveness of handcuffs in this role depends on a variety of factors, including the handcuffed person's size, strength, bone and joint structure, flexibility, and tolerance of pain. Albeit difficult, it is by no means impossible for a handcuffed person to obtain and use a weapon concealed on his person or within lunge reach, and in so doing to cause injury to his intended victim, to a bystander, or even to himself. Finally, like any mechanical device, handcuffs can and do fail on occasion.
      Sanders, 994 F.2d at 209 (footnotes omitted).


author: GOLDEN, Justice.

text:
    2003 WY 95
    Becky E. DURHAM, Appellant (Plaintiff), v. Brian DURHAM, Appellee (Defendant).
    No. 02-130.
    Supreme Court of Wyoming.
    Aug. 19, 2003.

      Representing Appellant: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.
    Representing Appellee: DaNece Day Koe-nigs of Lubnau, Bailey & Dumbrill, P.C., Gillette, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] The district court granted the parties a divorce, awarded primary custody of the parties' two children to Becky E. Durham (mother), and ordered Brian Durham (father) to pay child support. In this appeal, mother challenges the district court's child support order, claiming the district court abused its discretion in imputing to her gross income of $35,000 per year, equal to a salary she carned in Virginia in 1992. She contends the district court's imputation of income is not supported by the record because there is no evidence regarding whether mother could earn such a salary in Gillette, Wyoming, where she now resides. Mother also claims the district court abused its discretion in allocating the expense of travel for visitation. We agree with mother that the record does not support the district court's imputation of income. We reverse and remand for further proceedings.

ISSUES

[T2] The parties generally agree on the following issues:

1. Whether the District Court erred when it imputed [to mother] $35,000.00 gross annual income for purposes of caleu-lating [mother's] child support contribution?
2. Whether the District Court erred when it ordered [mother] to pay all of the reasonable and necessary travel expenses for the parties' children to visit [father] twice per year for 2003 and beyond and/or deviated from the presumptive child support guidelines because of [father's] difficulty and expense of visitation travel?

FACTS

[T3] The parties were married on September 19, 1992. During the marriage, the parties made their home in Alexandria, Virginia. Throughout the course of the marriage, father was employed by Navy Sea Systems Command. At the time of the marriage, mother was employed by American Express, where she earned $35,000 in 1992, the last year she worked for that entity. After the parties married, mother's employment with American Express ended, and she became a homemaker and worked part time for the parties' church. Mother earned, on average, between $10,000 and $12,000 per year. Two daughters were born of the marriage, the first on April 28, 1997, and the second on November 18, 1998. Eventually, irreconcilable differences developed.

[T4] The parties separated around October 28, 1999. During that week, while father was out of the country on a work assignment, mother left the marital home without notify, ing father, taking the children with her. Mother and the children moved from Virginia to Gillette, Wyoming, where they took up residence with mother's parents. After settling in Gillette, mother began teaching piano lessons, performing piano accompaniments, and teaching music lessons to children. In the year 2000, mother grossed approximately $7,000 from those and her other endeavors.

[T5] Mother filed for divorce, in Campbell County, in May of 2000. The district court held a two-day divorcee trial on December 21-22, 2000, and issued a decision letter on January 29, 2001. The district court awarded mother the primary care, custody and control of the parties' children. Father was granted visitation and ordered to pay child support. With respect to child support, the decision letter provides:

Child Support: The court finds that [mother] is intentionally underemployed. By her own testimony she is but a few hours away from an MBA and in her last year of full-time employment, 1992, made $35,000. She is now employed teaching music to children, which, while a commendable endeavor, is not one that adequately meets her earning potential and accompanying benefit to the minor children. [Mother] chooses this course. The court imputes annual gross income to [mother] at $35,000 per year. The court imputes [mother's] net monthly income at $2,388, after appropriate deductions.
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[Father's] net monthly income is $5387. The parties total child support obligation to the children is $1590. - Under the Child Support Guidelines, [father's] share of the support obligation is $1105. However, given the distance that [father's] children now reside from him, and the difficulty and expense of visitation, the court finds that a deviation from the guidelines is appropriate and, therefore assesses an obligation of $450 per month per child for a total of $900 per month, commencing February 1, 2001. W.S. § 20-6-802(b)(vii).

[¶ 6] With respect to expense of travel for visitation, the decision letter also noted that "Igliven the substantial distance of the parties from one another, occasioned by [mother's] move, and the ages of the children the court finds that special considerations concerning travel expenses should be made." The district court determined that, beginning in 2003, mother "shall bear the reasonable and necessary expenses for two visits (round trip) for the children per year."

[¶ 7] After the district court issued its decision letter, the parties could not agree on a final order in a timely fashion. Consequently, the district court bifurcated the proceedings. On December 21, 2001, it entered a decree of divorce, which served to divorce the parties and leave all remaining issues for a future order. Finally, on March 26, 2002, the district court entered its "Order of Child Custody, Visitation and Support and Property and Debt Division." That order implemented child support in accord with the district court's decision letter. This appeal followed.

STANDARD OF REVIEW

[T8] Decisions concerning child support are committed to the sound diseretion of the district court. Carlton v. Carlton, 997 P.2d 1028, 1031 (Wyo.2000); Reavis v. Reavis, 955 P.2d 428, 431 (Wyo.1998); Scherer v. Scherer, 931 P.2d 251, 253-54 (Wyo.1997).

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the cireamstances and without doing so arbitrarily or capriciously. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999) (citations and quotations omitted).

DISCUSSION

A. Imputed Income

[T9] Mother claims the district court abused its discretion when, for purposes of caleulating child support, it imputed to her an annual income of $85,000. Mother does not challenge the district court's determination that she is underemployed and that income should be imputed. Instead, her complaint is that the amount of imputed income is too high given the record in this matter. Specifically, mother asserts that the record does not contain evidence of employment opportunities or prevailing wages in Gillette. In addition, she points out that the only time she made $35,000 a year was in 1992 in Virginia. In response, father contends it is reasonable to impute income to mother at $85,000, especially considering that she has a degree in business administration and is four classes short of attaining a Masters Degree in Business Administration (MBA).

[T 10] In defining "income" for child support purposes, the legislature has determined that, "[glross income also means potential income of parents who are voluntarily unemployed or underemployed." Wyo. Stat. Ann. $ 20-2-303(a)(i) (LexisNexis 2008). In turn, imputation of income is controlled by Wyo. Stat. Ann. § 20-2-807 (LexisNexis 2008), which provides in pertinent part:

(b) A court may deviate from the presumptive child support established by W.S. 20-2-304 upon a specific finding that the application of the presumptive child support would be unjust or inappropriate in that particular case. In any case where the court has deviated from the presumptive child support, the reasons therefor shall be specifically set forth fully in the order or decree. In determining whether to deviate from the presumptive child support established by W.S. 20-2-304, the court shall consider the following factors: "eo ok ok
(xi) Whether either parent is voluntarily unemployed or underemployed. In such case the child support shall be computed based upon the potential earning capacity (imputed income) of the unemployed or underemployed parent. In making that determination the court shall consider:
(A) Prior employment experience and history;
(B) Educational level and whether additional education would make the parent more self-sufficient or significantly increase the parent's income;
(C) The presence of children of the marriage in the parent's home and its impact on the earnings of that parent;
(D) Availability of employment for which the parent is qualified;
(E) Prevailing wage rates in the local area;
(F) Special skills or training; and
(G) Whether the parent is realistically able to earn imputed income.

[¶ 11] A deviation from the child support guidelines is permitted only when the trial court makes a finding that it would be unjust or inappropriate to follow them in a particular case and it specifically sets forth in full the reasons for the deviation in the divorce decree. Raymond v. Raymond, 956 P.2d 329, 334 (Wyo.1998); Wood v. Wood, 964 P.2d 1259, 1265 (Wyo.1998); Sharpe v. Sharpe, 902 P.2d 210, 214 (Wyo.1995). Nothing in this statute prevents a district court from imputing income to a custodial parent, and we affirmed the imputation of income to a custodial mother in In re Paternity of IC, 971 P.2d 603, 607 (Wyo.1999). Also, in cases involving imputed income, we have required evidentiary support for imputation of income at a certain rate. Id. at 608; Whitt v. State ex rel. Wright, 2001 WY 128, ¶¶ 14-15, 36 P.3d 617, ¶¶ 14-15 (Wyo.2001).

[T12] We agree with mother that the district court's decision is not supported by the record. While the record does include evidence of mother's employment history and education level, it does not include any evidence regarding availability of employment and prevailing wage rates in the local area. Thus, while it is true that mother has a degree in business administration and that she earned $35,000 in Virginia in 1992, the district court record includes nothing to support the proposition that mother is realistically able to earn, in the Gillette area, the income imputed to her. See Connell v. Connell, 718 So.2d 842 (Fla.App. 2 Dist.1998).

[T13] Indeed, the parties seemed to acknowledge this lack of evidentiary support in making their written closing arguments to the district court. Interestingly, in their child support calculations, both parties proposed that the district court impute income to mother based on the minimum wage. In fact, the imputed income proposed by the parties was identical. The written closing arguments underscore the problem on this issue: the record does not support the decision to impute income to mother at the rate of $35,000 per year. The district court's decision to do so therefore must be reversed.

B. Allocation of Visitation Expenses

[T 14] In her second issue, mother argues the district court abused its discretion with respect to allocation of visitation expenses. First, mother claims an abuse of discretion in the district court's downward deviation in child support to offset visitation expense to father. Second, mother complains that, beginning in 2003, she is required to pay for two of the children's visits. Mother contends the district court's order allows the father to "have his cake and eat it, too" because not only is father's child support obligation reduced because of visitation expense, mother also has to pay for two visits per year. Father responds that, while this action was pending, he exercised his visitation rights often and that he will continue to do so, as permitted by the district court's visitation order. Father contends that, under the cir-eumstances, making mother pay for two trips per year is not unreasonable. Also, father points out that mother resides with her parents, thus reducing her living expenses.

[T{15] Before addressing these issues, we must note that the district court's decisions regarding allocation of visitation expenses are premised on an imputed income to mother of $35,000. Because we have determined the record does not support imputation of income at that amount, we cannot address these issues without the risk of offering an advisory opinion. However, for the sake of judicial economy and to reduce the litigation expenses for the parties, we will address the issues as best we can under the cireumstances.

[T16] It must also be preliminarily noted that the district court granted father liberal visitation rights. Beginning in 2003, when the oldest child will be of school age, father is permitted visitation on basically every other weekend, on alternating major holidays, and for Father's Day. The district court also granted father summer custody of the children, beginning in 2003.

[T17] Turning to mother's issues, she attacks, in two different ways, the downward deviation from the presumptive child support amount. Mother contends, first, that the district court erred in failing to consider all the factors contained in § 20-2-807(b). See-ond, she contends that the district court's decision is not supported by the record. As detailed in its decision letter, the district court found father's presumptive support obligation was $1,105 per month. Taking into account the difficulty and expense to father in exercising visitation, the district court deviated from that amount, reducing father's support obligation to $900 per month. In doing so, the district court relied on § 20-2-307(b)(vil), which permits a district court to deviate from the presumptive support amount in consideration of the "cost of transportation of the child to and from visitation."

[T18] With respect to mother's first contention, she presents no authority for the proposition that the district court, in making its determination to deviate from the presumptive support amount, must examine all the factors listed in § 20-8-807(b) and that it cannot rely on only one of the factors. In addition, even though the district court's decision relies on only one factor, that does not necessarily mean the district court did not consider the others. We reject this contention.

[T19] As for mother's contention that the record does not support the district court's decision, the record reveals that, because of mother's relocation with the children to Wyoming, father must ineur substantial expenses in exercising visitation. While this matter was pending in the district court, father made five trips to Wyoming, and the children traveled to Virginia, with their mother, once. Father testified that his visits to Wyoming cost between $700 and $1200. Mother also presented testimony and exhibits concerning travel costs from her trip to Virginia with the children. Thus, unlike mother's claim with respect to imputed income, there is adequate support in the record to sustain the district court's decision to deviate. Under the circumstances, the district court's decision to deviate is well within the bounds of reason, and we find no abuse of discretion on the deviation decision. In re Paternity of IC, 971 P.2d at 607-08. We further find that, under these cireumstances, a downward deviation would be permissible regardless of whether the district court imputes income at $35,000 or at minimum wage.

[¶ 20] However, we recognize that the district court's decision on the amount of deviation was based on a presumptive child support amount that was, in turn, based on imputed income of $35,000. Thus, while we affirm the decision to deviate, we must reverse the amount of deviation. The district court maintains the discretion to adjust the amount of deviation in light of the proceedings on remand.

[T21] Mother also challenges the district court's requirement that she pay for two visits per year, starting in 2008. In addition to challenging the allocation itself, mother argues that requiring her to pay for two trips per year, when combined with the deviation from the presumptive support amount due to transportation, amounts to an abuse of discretion. We first note that the district court has statutory authority to allocate the costs of transporting the children pursuant to Wyo. Stat. Ann. § 20-2-202(a)(i1) (LexisNexis 2003). Second, as noted above, father was granted liberal rights to visitation, and the visitation expenses are substantial. Finally, we note that other courts have approved a decision requiring a parent to share in the expense of a situation that he or she helped to create. Stanton v. Abbey, 874 S.W.2d 493, 501 (Mo.App. E.D.1994) ("We do not find it inequitable for mother to pay the transportation costs which result from her moving [from Missouri] to California with the children."). Here, because the district court relied on the imputed income of $35,000 in making its decision on this issue, and because the parties' respective incomes, whether imputed or otherwise, are key factors in allocating the expense of visitation, we must also reverse on this issue to allow the district court to reconsider its decision in light of the proceedings on remand.

[¶ 22] For the foregoing reasons, this case is reversed and remanded to the district court for proceedings consistent with this opinion.

      . Imputing income to mother at minimum wage ($896 /month) would, utilizing the other number used by the district court, result in a presumptive support obligation for father of approximately $1,175 per month, as opposed to that found by the district court, $1,105 per month. See Wyo. Stat. Ann. 20-2-304(a)(ii) (LexisNexis 2003). In fact, $1,175 per month is the amount mother calculated and proposed in her written closing argument.

      . With respect to visitation, the district court's order provided:
      Visitation. The defendant shall have the right of visitation with the parties' minor children as set forth herein:
      1. At all times, holiday visitation shall take precedence over regular visitation.
      we ok
      3. 2003 and Beyond (When the Oldest Child is School Age).
      a. Every weekend when Fridays are odd-numbered, beginning at 6:00 p.m. on Friday until 6:00 p.m. on the following Sunday.
      b. Holiday Visitation.
      1. Alternating major holidays, with said major holidays being defined as New Years (the second half of the break from school), Spring Break/Easter (April school break), July Fourth (for a period of four days), Thanksgiving and Christmas (the first half of the break from school).
      Beginning in 2003, the Defendant shall have New Years, July Fourth and Christmas in odd-numbered years and he shall have Spring Break/Easter and Thanksgiving in even-numbered years. The calendar of the school which the children attend shall be the calendar used to determine visitation.
      2. The schedule shall alternate each year so that the party who has the children for a particular holiday during the year will not have the children on the same holiday the following year.
      3. The Plaintiff shall have the children on Mother's Day and the Defendant shall the children on Father's Day.
      c. Summer Custody. From five (5) days after school recesses in the spring until five (5) days before school resumes in the fall. During Defendant's summer custody, Plaintiff shall have custody of the minor children for two (2) weekends commencing at noon on Friday and continuing until 5:00 p.m. on Sunday. In 2004 and beyond, when Plaintiff has the children for July Fourth, she shall have only one other visit during Defendant's summer custody.

      . Wyo.Stat. Ann. § 20-2-202(a)(i) provides in part:
      (a) The court may order visitation it deems in the best interests of each child and the court shall:

      (ii) Provide for the allocation of the costs of transporting each child for purposes of visitation[.]