State v. Hintze

2022 UT App 117

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHAD HINTZE,
Appellant.

Opinion
No. 20200787-CA
Filed October 14, 2022

Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 181903394

David A. Ferguson, Attorney for Appellant
Simarjit S. Gill, Hyrum J. Hemingway, and Joey L.
Blanch, Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
DAVID N. MORTENSEN concurred. JUDGE RYAN D. TENNEY
dissented, with opinion.

HARRIS, Judge:

¶1 One day in 2016, Chad Hintze was sitting on a park bench
with a teenage family friend when three uniformed officers
approached him and began asking him questions. During this
questioning, officers learned Hintze’s name and that he was a
convicted sex offender. Because he was a sex offender, Hintze was
not legally permitted to be in the park. As a result, the State
charged Hintze with one count of “violation by sex offender of
protected area.”

¶2 But the State failed to prosecute the case—or even notify
Hintze of the charge—for over two years. Hintze finally learned
about the pending charge when corrections officials told him that
State v. Hintze

it made him ineligible for parole on another matter. Soon after
learning about the pending charge, Hintze filed a motion to
dismiss it, arguing that the State’s delay in prosecuting him had
violated his Sixth Amendment right to a speedy trial. The district
court denied his motion, and Hintze later entered a conditional
guilty plea that reserved his right to challenge the court’s decision.

¶3 Hintze now takes up that challenge, and asks us to reverse
the district court’s denial of his motion to dismiss. We find merit
in Hintze’s arguments, and agree that his Sixth Amendment right
to a speedy trial was violated. On that basis, we reverse his
conviction and remand with instructions to dismiss the charge.

BACKGROUND

¶4 In 2011, Hintze was convicted of attempted unlawful
sexual activity with a minor. See Utah Code Ann. § 76-4-101
(LexisNexis 2008); id. § 76-5-401. Because of this conviction,
Hintze was required to register as a sex offender. See id. § 77-27-
21.5(1)(n)(i)(V) (Supp. 2010). 1 And subject to a few exceptions not
at issue in this case, it is accordingly a crime for Hintze to “be in a
protected area.” Id. § 77-27-21.7(3)(a) (Supp. 2022). By statute, “a
community park that is open to the public” qualifies as a
protected area. Id. § 77-27-21.7(1)(b)(i)(D).

The June 2016 Park Incident

¶5 On June 7, 2016, Hintze and a teenage girl were “eating
snacks” and sitting “on [a] park bench” along the Jordan River
Trail when three uniformed officers on bike patrol approached

1 . Because of changes to the statutes that required Hintze to
register as a sex offender, we cite the versions in effect at the time
of his 2011 conviction. The current requirements for who qualifies
as a sex offender can be found in Utah Code section 77-41-102(17)
(LexisNexis Supp. 2022).

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them. The officers stopped right in front of Hintze and the
teenager and parked their bikes in front of and to the side of the
bench where Hintze and the teenager were sitting.

¶6 The first officer asked, “[H]ow’s it going guys? How old
are you guys?” Hintze responded that he was twenty-three years
old, and the teenager responded that she was thirteen. 2 The officer
then asked how they knew each other. Hintze responded that they
were siblings. But the officer doubted this because of “their
complexions,” so he said to Hintze, “[It] doesn’t look like you
guys are siblings.” In response, Hintze told the officer that he was
actually “adopted.” When the officer pressed back on that, Hintze
then replied that he was actually “kind of adopted into the
family” and was “a family friend.” At this point (which was about
a minute into the encounter), the officer asked Hintze for his name
and birth date, which Hintze provided.

¶7 While the first officer and Hintze were engaged in that
conversation, the teenager called her mother. The teenager
handed the phone to one of the other officers, and he then spoke
to the teenager’s mother. During that brief conversation, the
mother provided the officer with Hintze’s name and told him that
Hintze was “a family friend.” The officer responded by explaining
that the officers “just wanted to make sure there wasn’t anything

2 . The very early portions of the encounter (including this
particular moment) were caught on video but not on audio. When
describing this question and answer at the subsequent hearing,
the officer testified that Hintze told him that he was twenty-two.
But based on the birthdate that Hintze then gave the officer in a
portion for which the audio was recorded (which matches
Hintze’s birthdate as indicated elsewhere in the record), Hintze
would have been twenty-three. The difference between twenty-
two and twenty-three is immaterial for purposes of the issues on
appeal. For consistency, we assume for purposes of our analysis
that Hintze was twenty-three at the time of this incident.

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else going on here” and that they “just wanted to make sure” that
the teenager “was safe.” The officer then hung up and gave the
phone back to the girl. As the encounter continued, an officer
radioed in to dispatch “to check the identity” and run a warrants
check on Hintze using the name and birth date provided by
Hintze. From this, the officer learned that Hintze was a registered
sex offender.

¶8 The girl’s mother soon came and picked her daughter up,
while the officers continued to talk with Hintze. After talking with
him for about twenty minutes, the officers decided not to place
Hintze under arrest, telling him that they didn’t “feel that’s the
best avenue at this juncture.” The officers instead allowed Hintze
to walk away.

The Initial Delay in Prosecution

¶9 The State did not immediately file charges against Hintze
based on the June 2016 park incident described above.

¶10 In March 2017, however, Hintze was charged with forcible
sexual abuse, a second-degree felony, in a separate and unrelated
case (case no. 171903226, hereinafter “Case 3226”). In June 2017,
Hintze pleaded guilty in Case 3226 to an amended charge of
attempted forcible sexual abuse, a third-degree felony. And in
August 2017, Hintze was sentenced to a prison term of zero-to-
five years based on that conviction.

¶11 On March 15, 2018, Hintze had an initial parole hearing in
Case 3226, but the Board of Pardons and Parole (the Board) chose
not to release him. Instead, it scheduled another hearing for
March 2020, and told Hintze that he needed to complete a sex
offender training program “before being considered for parole.”

¶12 On March 23, 2018, the State finally filed a charge against
Hintze related to the June 2016 incident described above (and
which is ultimately at issue in this appeal). In the information, the

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State charged Hintze with one count of “violation by sex offender
of protected area,” a class A misdemeanor. See Utah Code Ann.
§ 77-27-21.7. After the State filed this charge, however, there was
“a mistake somewhere” on the part of the State, and as a result,
Hintze “did not receive notice” of this charge for two years.
Indeed, the State took no action to advance the case until
prompted to do so by Hintze in March 2020.

¶13 By January 2020, while still in prison on Case 3226, Hintze
had finished the sex offender treatment program that corrections
officials had asked him to complete. But at his March 2020 parole
hearing, the Board denied his request for parole. Hintze later
testified that “what stopped [him] from being paroled” was the
discovery that a “warrant” had been “filed that needed to be
adjudicated.” All parties agree that this was a reference to the
charge in this case for the June 2016 park incident.

¶14 On March 16, 2020, just days after finally learning of the
existence of the charge, Hintze wrote a letter to the district court
in this case. In this letter, Hintze explained that he had “a case
pending/warrant” and asked “to set up video court.” He also
wrote that he could not afford an attorney “and would like to be
appointed one.” Hintze’s initial appearance was finally held on
June 4, 2020—some twenty-seven months after the charge was
initially filed—and trial counsel (Counsel) appeared on his behalf
on June 10, 2020.

¶15 Counsel’s first action was to request a preliminary hearing,
which was held on July 8, 2020. Following the hearing, the court
bound Hintze over for trial on the pending charge. After the
bindover, Hintze requested discovery from the State, and then—
some five weeks after the bindover order—he filed two motions.

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Hintze’s Motion to Suppress

¶16 One of the motions was to suppress evidence, in which
Hintze argued that he was unconstitutionally seized before he
gave his name to the officer. In support of his motion, Hintze
made two principal arguments. First, he argued that he was
seized when officers “pulled up in front of the park bench,”
“stood above him,” and “launch[ed] into accusatory questioning”
about his relationship with the teenager. Hintze argued that if he
had “stood up to walk away” at that point, “he would have run
into one of the three officers.” In his view, this constituted a
seizure. Second, Hintze argued that there was not reasonable
suspicion to support a seizure at that point because “[t]here are a
host of lawful reasons why a Hispanic adult male might sit on the
same park bench as a White underage female.” While
acknowledging that he gave officers shifting explanations for his
relationship with the teenager, Hintze asserted that there was still
not a “particularized, articulable suspicion of a crime” at that
point because people occasionally “give inconsistent, vague,
evasive, or equivocating answers to police questioning” and also
because Hintze’s ultimate explanation (that he was something of
an adopted brother) “is a fairly minimal faux pas” given that he is
a “family friend.”

¶17 The State opposed the motion and, after a hearing, the
court denied it. Although the court found that “[t]he officers did
ask the individuals their age very quickly,” it concluded that “this
[was] a casual encounter up to the point that the name [was]
requested.” And in the court’s view, the officers had “reasonable
articulable suspicion to investigate the relationship between
[Hintze] and the young girl, given that [Hintze] ha[d] told the
officer three different things regarding their relationship.” The
court further opined that the encounter was “still a level 1 stop”
when the officer asked Hintze for his name because the officer had
“turn[ed] away from [Hintze], turn[ed] his back to him and
[began] dealing with dispatch.” This, combined with the “very

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short” duration of the interaction, Hintze’s “casual” actions in
continuing to snack and drink as the officers questioned him, and
the fact that the officers had not drawn their weapons and had
used a “normal” tone of voice, led the court to conclude that
“someone in [t]his situation” would not “feel detained.”

Hintze’s Motion to Dismiss

¶18 Hintze’s other motion was to dismiss the charge, claiming
that his Sixth Amendment right to a speedy trial had been
violated. Hintze relied on the four factors set forth in Barker v.
Wingo, 407 U.S. 514 (1972), arguing as follows:

• Factor 1 (length): Two years had elapsed since his charge
in this case, which was “sufficient to trigger a speedy trial
analysis.”

• Factor 2 (reason for delay): He was “not responsible for the
delay in his prosecution.”

• Factor 3 (assertion of right): He had timely asserted his
right to a speedy trial, beginning with his March 2020 letter
to the court and continuing with his August 2020 motion
to dismiss, and had done nothing to delay the proceedings.

• Factor 4 (prejudice): He was prejudiced by the delay
because he was “denied parole” in Case 3226 after “this
case was filed.”

See id. at 530.

¶19 The State also opposed this motion, and the district court
later denied it as well. In its ruling, the court concluded that “the
length of delay certainly trigger[ed]” a full four-factor Barker
inquiry. With respect to those factors, the court (1) acknowledged
that there had been a two-year delay but (2) determined that the
reason for the delay was “a somewhat neutral factor” since there

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was no evidence of bad faith on the part of the State. The court
then concluded that (3) “[n]othing in [Hintze’s March 2020] letter
. . . assert[ed] a right to a speedy trial,” though it “certainly stated
I’d like a lawyer and I’d like to come to court.” And finally, with
regard to prejudice, (4) the court determined that there had not
“been any prejudice to Mr. Hintze” that was not “incumbent on
having criminal charges pending against an individual,” and it
also concluded that the reason for Hintze’s parole denial in March
2020 was “somewhat speculative” because it was unclear whether
the Board would have actually granted Hintze parole at that time.
Looking at “the totality of the circumstances,” the court ruled that
Hintze’s right to a speedy trial had not been violated.

Hintze’s Conditional Guilty Plea and Sentence

¶20 On September 21, 2020, Hintze entered a conditional guilty
plea to the charged offense, reserving the right to appeal the
denial of the two motions described above and agreeing to be
sentenced that day.

¶21 When Counsel then addressed the court about the
potential sentence, Counsel noted that Hintze had been
incarcerated in Case 3226 while this charge was pending. Based
on that period of incarceration, Counsel asked the court not to
impose an additional sentence here but to simply “close this case.”
In Counsel’s view, Hintze should essentially be given “credit for
time served.”

¶22 When the prosecutor addressed the court, she asserted that
“we’d be in a different posture” if the case had been timely
prosecuted. Elaborating, she told the court that because Hintze
had previously “committed crimes against minor individuals,”
“under normal circumstances” the State “would be asking for jail
time” in this case and that it would be asking “for it to run
consecutive” to his sentence for Case 3226. She said that the State
would have made that request because this offense “required

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some additional punishment” in light of Hintze’s history. But
even so, she “agree[d] with Defense counsel that” because this
case had been “pending for two years,” and because Hintze had
been “in prison anyway” during that time, the State would not
“ask[] for additional time in this case.” She accordingly agreed
with the request for the court to “close the case.”

¶23 The court followed that recommendation. The court
explained that although it had denied the speedy trial motion, it
was “certainly . . . concerned about the failure to prosecute and
move the case forward.” “[F]or those reasons,” the court
concluded that it was “particularly appropriate to just simply
close the case” and not “impos[e] any further sentence.”

ISSUE AND STANDARD OF REVIEW

¶24 Hintze now appeals, and challenges the district court’s
denial of his motion to dismiss, which was based on an alleged
violation of the Sixth Amendment right to a speedy trial.
“Whether a defendant’s right to a speedy trial has been violated
presents a question of law, which we review for correctness.” 3
State v. Steele, 2010 UT App 185, ¶ 14, 236 P.3d 161.

3. Hintze also challenges the district court’s denial of his motion
to suppress, which raised Fourth Amendment search and seizure
issues. Judge Tenney discusses those issues at length in his
dissenting opinion, and we note—for whatever it might be
worth—that we do not take issue with Judge Tenney’s analysis in
that regard. But because we reverse Hintze’s conviction on Sixth
Amendment grounds—a matter upon which we do disagree with
Judge Tenney—we need not reach Hintze’s arguments regarding
the propriety of the court’s denial of his motion to suppress, and
therefore do not incorporate any analysis of those arguments into
our opinion.

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ANALYSIS

¶25 “The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to a speedy and public
trial.” State v. Thompson-Jacobson, 2022 UT App 29, ¶ 9, 508 P.3d
604 (quotation simplified). This right is a “fundamental” one, and
“is imposed by the Due Process Clause of the Fourteenth
Amendment on the States.” State v. Younge, 2013 UT 71, ¶ 16, 321
P.3d 1127 (quotation simplified). But it is also an “amorphous,
slippery, and necessarily relative” right, Vermont v. Brillon, 556
U.S. 81, 89 (2009) (quotation simplified), and it is one that “must
take into account the defendant’s rights as well as the rights of
public justice,” State v. Samora, 2022 UT App 7, ¶ 18, 504 P.3d 195
(quotation simplified).

¶26 In Barker v. Wingo, 407 U.S. 514 (1972), the court set forth
the familiar four-factor framework by which we evaluate a Sixth
Amendment speedy trial claim. Under this framework, we
consider (1) the “[l]ength of delay,” (2) “the reason for the delay,”
(3) “the defendant’s assertion of his right,” and (4) whether there
was “prejudice to the defendant” resulting from the delay. Id. at
530. When assessing whether a defendant’s speedy trial right was
violated, courts “engage in a difficult and sensitive balancing
process.” Id. at 533. “None of the factors are necessary or
sufficient; rather, the factors are related and should be considered
together with other relevant circumstances.” United States v.
Koerber, 10 F.4th 1083, 1109 (10th Cir. 2021) (quotation simplified);
see generally Bennett v. Bigelow, 2016 UT 54, ¶ 38 n.65, 387 P.3d 1016
(“Although we are not bound to follow precedent from the circuit
courts of appeal on questions of federal constitutional law, the
reasoning in these cases is persuasive . . . .”).

A

¶27 The first Barker factor—the length of the delay—presents
“a double enquiry.” See Doggett v. United States, 505 U.S. 647, 651

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State v. Hintze

(1992). The first part of this double enquiry asks whether the delay
was long enough to even trigger a full-blown Barker analysis;
indeed, “if the delay is not uncommonly long, the inquiry ends
there.” See Younge, 2013 UT 71, ¶ 18 (quotation simplified). Delays
in excess of one year are usually deemed something longer than
mere “ordinary” delay, and thus long enough to trigger a Barker
inquiry. See Doggett, 505 U.S. at 652 & n.1; see also Thompson-
Jacobson, 2022 UT App 29, ¶ 10 (stating that, “as a general matter,
a delay approaching one year is enough to trigger a speedy-trial
inquiry” (quotation simplified)). For purposes of this inquiry, the
clock starts running when the defendant is charged, and it stops
running when he is tried or otherwise adjudicated. See Barker, 407
U.S. at 533; Samora, 2022 UT App 7, ¶ 22. 4 In this case, the State
filed charges against Hintze in March 2018, but took no action in
the matter until after March 2020, and did not complete its
prosecution of Hintze until September 2020. This was a delay of
over two years, and it was therefore more than enough to trigger
the full four-factor Barker inquiry.

¶28 But the second part of the “double enquiry” is also worth a
mention. In that part of the analysis, we must consider “the extent
to which the delay stretches beyond the bare minimum needed to
trigger judicial examination of the claim.” See Doggett, 505 U.S. at

4. In this sense, because a Sixth Amendment speedy trial claim
looks to the delay from the filing of charges through the case’s
resolution, it is different from a claim that the government
violated the defendant’s rights by unnecessarily delaying the
filing of charges, which is separately analyzed under the Fifth
Amendment’s Due Process Clause. See, e.g., State v. Hales, 2007 UT
14, ¶ 42, 152 P.3d 321; State v. Charles, 2011 UT App 291, ¶ 22, 263
P.3d 469. Indeed, “no Sixth Amendment right to a speedy trial
arises until charges are pending.” United States v. MacDonald, 456
U.S. 1, 7 (1982). Accordingly, even though the State took over two
years to even file the charge, for purposes of our analysis we do
not consider pre-filing time as part of the “delay” at issue.

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651–52. In this case, the State did nothing for two years—twice the
length of time needed to trigger the Barker inquiry—in a relatively
simple case that could have easily been resolved well within that
time period. We disagree entirely with the dissent’s conclusion
that the only time period that really matters is “the six months
between March and September 2020.” See infra ¶ 137. The State
forgot about this case for over two years after filing it, and that
entire time period is relevant to the speedy trial analysis. In our
view, this first Barker factor weighs clearly in favor of Hintze.

B

¶29 The second Barker factor requires us to examine the reason
for the delay and, specifically, “whether the government or the
criminal defendant is more to blame for that delay.” See Doggett,
505 U.S. at 651. This is a crucial factor; indeed, the Supreme Court
has described this factor as “[t]he flag all litigants seek to capture.”
See United States v. Loud Hawk, 474 U.S. 302, 315 (1986); see also
United States v. Seltzer, 595 F.3d 1170, 1177 (10th Cir. 2010)
(referring to this factor as “especially important”).

¶30 In this case, the blame for the initial two-year delay
between March 2018 and March 2020 rests entirely with the State.
In many speedy trial cases, courts must analyze whether
particular discrete periods of delay are attributable to one side or
the other, and must first assess whether the defendant—as some
defendants do, see, e.g., United States v. Koerber, 10 F.4th at 1110
(stating that the defendant “intentionally delayed his case in order
to try and obtain a dismissal with prejudice” on speedy trial
grounds)—was purposely attempting to delay the case. Those
kinds of hijinks are simply not at issue here; indeed, Hintze was
unaware of the charges until March 2020, and he played no role
in the delay up to that point. And the record contains no
indication that Hintze bears any responsibility for any delay in
obtaining appointed counsel; he requested an attorney in mid-
March 2020 and was appointed one in early June 2020, and not

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even the State suggests that this period of delay ought to be
attributed to Hintze. After Hintze obtained counsel, the case
proceeded relatively smoothly, without significant apparent
delay on the part of either side.

¶31 After concluding that the State was solely responsible for
any delay, we must next assess whether the State’s reason for the
delay was “deliberate, neutral, or valid.” See Thompson-Jacobson,
2022 UT App 29, ¶ 13. “It is incumbent upon the government to
present acceptable reasons for the delay.” United States v.
Margheim, 770 F.3d 1312, 1326 (10th Cir. 2014). All parties here, as
well as the dissent, agree that the State’s reason for delaying this
case was simple negligence: the State appears to have forgotten
about the case. And negligence is “an example of a neutral reason
for delay.” See Thompson-Jacobson, 2022 UT App 29, ¶ 13.

¶32 But even negligence-based neutral reasons for delay are
weighed against the State: “Although negligence is obviously to
be weighed more lightly than a deliberate intent to harm the
accused’s defense, it still falls on the wrong side of the divide
between acceptable and unacceptable reasons for delaying a
criminal prosecution once it has begun.” Doggett, 505 U.S. at 657.
After all, “the ultimate responsibility for such circumstances must
rest with the government rather than with the defendant,” and
therefore even negligence should be weighed against the State. See
Barker, 407 U.S. at 531.

¶33 Thus, this crucial second factor weighs quite clearly against
the State here, albeit less heavily than if there had been evidence
of deliberate intent to harm Hintze’s defense.

C

¶34 The third Barker factor requires examination of the
defendant’s assertion of his right to a speedy trial. It is, of course,
primarily the responsibility of “the courts and the prosecutors to

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assure that cases are brought to trial,” but defendants bear some
responsibility to demonstrably assert their right to a speedy trial.
Id. at 529. Accordingly, “the defendant’s assertion of or failure to
assert his right to a speedy trial is one of the factors to be
considered.” Id. at 528.

¶35 To be sure, Hintze did not file a formal motion invoking
his right to a speedy trial until August 2020. But Hintze did not
even know of the existence of this case until March 2020, so the
two-year period between March 2018 and March 2020 cannot be
held against him. Hintze obviously could not have invoked his
right to a speedy trial during that time period.

¶36 And starting in March 2020, as soon as Hintze learned of
the existence of this case, he took appropriate action aimed at
speedily moving his case along toward trial. Indeed, his first
action was to send a pro se handwritten letter to the court on
March 16, 2020 asking “to set up video court”—a reasonable
request given the fresh outbreak of COVID-19 that was then
sweeping the world—and informing the court that he could not
“afford an attorney and would like to be appointed one.” Read
liberally, in light of Hintze’s pro se status at the time he wrote the
letter, what Hintze was asking for was to get his case moving
toward resolution, through trial or otherwise. It is an indication
that—far from trying to delay his criminal case—Hintze was
trying to accelerate it.

¶37 Hintze’s letter is therefore different from the pro se letter at
issue in Thompson-Jacobson. In that case, the defendant was
incarcerated in Nevada and sent a letter, in 2009, to the Utah court
“requesting a motion to dismiss form, information about his case,
and a list of all the criminal defense forms.” See 2022 UT App 29,
¶ 5 (quotation simplified). The court forwarded a copy of the letter
to the prosecutor’s office, but there was apparently no response to
the defendant’s letter, and the defendant did not follow up, at
least not until 2013 after the State began to take action on the case.

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Id. ¶¶ 5–6. Later, when the defendant claimed a Sixth Amendment
violation, the court declined “to construe [the defendant’s] letter
as an assertion of a right” to a speedy trial. Id. ¶ 16.

¶38 In this case, Hintze did not just request “forms” and
“information.” He specifically asked for a hearing and for a public
defender. Those are distinct requests that are each consistent with
a desire to get the case moving toward trial after an inexplicable
two-year delay. And unlike the defendant in Thompson-Jacobson,
Hintze—upon being appointed counsel in June 2020—took timely
follow-up action to invoke his right to a speedy trial: he
immediately requested a preliminary hearing, which was held in
July 2020, and about a month later filed his motion to dismiss on
speedy trial grounds. Viewed with this context in mind, Hintze’s
March 2020 pro se letter was, in our view, a clear attempt to get
the case moving more speedily toward trial.

¶39 We certainly acknowledge—and do not disagree with—
the dissent’s point that a defendant’s invocation of his right to a
speedy trial should be sufficiently specific to put the State on
notice that the right is being invoked. See infra ¶ 83. But context
matters. See Thompson-Jacobson, 2022 UT App 29, ¶ 23 (stating that
the four Barker factors are to be assessed in “light of all the
circumstances”). Without a doubt, a defendant who ambiguously
mentions only that he would like his case to move along more
promptly, and then spends the next few months dragging his feet
as opposed to taking actions that indicate a desire for a speedy
trial, has clearly not done enough to specifically invoke the Sixth
Amendment’s speedy trial protections. But a pro se defendant
who makes a request that his case—after two years of
unexplained delay—be put on a track toward trial, and then
quickly follows that request up with a request for a preliminary
hearing and a specific motion invoking the Sixth Amendment,
has taken actions that result in the third factor weighing in his
favor.

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¶40 But more to the point, even if the dissent were correct that
a defendant’s invocation of the speedy trial right—in order to
constitute action sufficient to tilt the third Barker factor in his
favor—has to specifically mention a “trial,” Hintze made
precisely such an invocation here as soon as he was sure that there
actually was going to be a trial. Recall that his first action—taken
pro se—was to request counsel and a court hearing. His second
action, after obtaining counsel, was to request a preliminary
hearing, which of course is a proceeding designed to determine if
the State’s case is strong enough to bother staging a trial. It was
not until the preliminary hearing was over with, and the court had
bound Hintze over for trial on the pending charge, that the
prospect of a trial became a reality. And Hintze’s very next action
in the case—taken just weeks after the bindover—was to file a
motion specifically invoking his right to a speedy trial. Certainly,
a defendant could invoke his or her right to a speedy trial even
before a preliminary hearing is held. But it is not necessarily
inconsistent with the exercise of the right to a speedy trial for a
defendant to first seek a preliminary hearing to test whether there
will even be a trial at all.

¶41 Ultimately, this third factor is not so much about the
granular question—What precise language did the defendant use
in invoking the right?—as it is about the overarching one:
“whether the defendant’s behavior during the course of the
litigation evinces a desire to go to trial.” See United States v.
Koerber, 10 F.4th 1083, 1110 (10th Cir. 2021). Defendants who drag
their feet and only half-heartedly express an interest in a speedy
trial will have this factor weighed against them. On the other
hand, defendants who do everything they could possibly do to
“evince[] a desire to go to trial” will have this factor weighed in
their favor. And given the facts of this case, the arrow on this
factor’s Weigh-O-Meter is flatlined toward Hintze’s side.

¶42 Nothing about Hintze’s course of action was dilatory;
indeed, there is no hint of any effort on his part to delay these

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State v. Hintze

proceedings or to drag his feet for a while before invoking his
right to a speedy trial. From the moment he discovered the
existence of this case, he tried to get the case moving toward trial,
and from the moment he learned that there would actually be a
trial he specifically invoked his right to have any such trial occur
speedily. In our view, it is unreasonable to expect Hintze to have
more emphatically or timely invoked his right to a speedy trial,
and, under these circumstances, the third Barker factor weighs
quite clearly in Hintze’s favor.

D

¶43 The fourth and final Barker factor requires an examination
of the extent to which Hintze was prejudiced by the State’s delay
in bringing the case toward trial. This factor—along with the
second one, as noted above—is a crucial factor: although a
“showing of prejudice may not be absolutely necessary in order
to find a Sixth Amendment violation,” courts “have great
reluctance to find a speedy trial deprivation where there is no
prejudice.” See United States v. Gould, 672 F.3d 930, 939 (10th Cir.
2012) (quotation simplified).

¶44 In some cases, the length of delay is so egregious that
prejudice is presumed to have occurred, and the defendant is
relieved of any burden to demonstrate specific prejudice. See
Doggett, 505 U.S. at 655 (recognizing that “excessive delay
presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify,” and therefore
concluding that “affirmative proof of particularized prejudice is
not essential to every speedy trial claim”). When the delay
stretches beyond four or five years, courts often presume
prejudice. See United States v. Serna-Villareal, 352 F.3d 225, 232 (5th
Cir. 2003) (“Indeed, this Court and others generally have found
presumed prejudice only in cases in which the post-indictment
delay lasted at least five years.”); see also Doggett, 505 U.S. at 655,
657–58 (finding presumed prejudice where the delay amounted to

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State v. Hintze

more than eight years, six of which were attributable to the
government). Here, though, the two-year delay at issue is not long
enough for us to simply presume that Hintze was prejudiced by
the State’s delay.

¶45 Accordingly, Hintze must demonstrate actual prejudice
caused by the State’s two-year delay in bringing this case to trial.
“[U]nreasonable delay between formal accusation and trial” can
cause “more than one type of harm.” See Doggett, 505 U.S. at 654.
Typically, courts list three types of harm that are commonly
associated with delays in prosecution of a criminal case:
“oppressive pretrial incarceration”; “anxiety and concern of the
accused”; and impairment of the accused’s defense, such as
“dimming memories and loss of exculpatory evidence.” Id.
(quotation simplified). But courts have also recognized other
related types of harm in this context, particularly in cases
involving defendants who are already incarcerated on other
charges. Indeed, the United States Supreme Court stated:

At first blush it might appear that a man already in
prison under a lawful sentence is hardly in a
position to suffer from “undue and oppressive
incarceration prior to trial.” But the fact is that delay
in bringing such a person to trial on a pending
charge may ultimately result in as much oppression
as is suffered by one who is jailed without bail upon
an untried charge. First, the possibility that the
defendant already in prison might receive a
sentence at least partially concurrent with the one he
is serving may be forever lost if trial of the pending
charge is postponed. Secondly, under procedures
now widely practiced, the duration of his present
imprisonment may be increased, and the conditions
under which he must serve his sentence greatly
worsened, by the pendency of another criminal
charge outstanding against him.

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State v. Hintze

Smith v. Hooey, 393 U.S. 374, 378 (1969). And just a few years later,
the Court noted that “no court should overlook the possible
impact pending charges might have on [an incarcerated
defendant’s] prospects for parole and meaningful rehabilitation.”
Moore v. Arizona, 414 U.S. 25, 27 (1973); see also Strunk v. United
States, 412 U.S. 434, 439 (1973) (noting that an already-incarcerated
individual might sustain prejudice in the form of “uncertainties in
the prospect . . . of receiving a sentence longer than, or consecutive
to, the one he is presently serving,” and that “other factors such
as the prospect of rehabilitation may also be affected adversely”).

¶46 Since then, many courts—for a variety of reasons—have
found prejudice in cases involving already-incarcerated
defendants. See, e.g., United States v. Seltzer, 595 F.3d 1170, 1180
(10th Cir. 2010) (stating that the defendant was prejudiced by
delay, because he “was denied the right to a bond hearing in state
court” in another matter “and kept incarcerated” on that other
matter “longer than might otherwise be necessary”);
Commonwealth v. Rodriguez, 405 N.E.2d 124, 130 (Mass. 1980)
(concluding that a defendant sustained Barker prejudice because
the delay affected “his parole eligibility and [his] ineligibility for
prison programs”); State v. Chambers, 2020 MT 271, ¶ 16, 474 P.3d
1268 (recognizing that the defendant “was eligible for parole” in
another county on a different charge and that the charges at issue
“affected his parole eligibility” in the other county and rendered
him “not able to pursue a sentence that would run concurrently
with” the sentence he was serving in the other county); Turner v.
State, 545 S.W.2d 133, 139 (Tex. Crim. App. 1976) (concluding that
a defendant had shown prejudice where “he was deprived of the
possibility of receiving a sentence at least partially concurrent
with his federal sentence” and where “the detainer that was
placed on him . . . may well have prejudiced his opportunity for
clemency, pardon, [or] parole”).

¶47 Hintze does not claim that his ultimate defense to these
charges was impaired by the State’s delay in prosecuting the case.

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State v. Hintze

Nor does he claim that he was made to suffer excessive pretrial
incarceration in this case, because he was not being held on this
charge. Instead, he asserts that the State’s delay in prosecuting this
case caused him to serve additional time behind bars by depriving
him of the chance for either (a) parole in March 2020 in Case 3226,
or (b) a chance to serve his sentence in this case concurrently with
the sentence that had previously been imposed in Case 3226. We
find Hintze’s arguments persuasive.

¶48 In March 2018, at the time the charges were filed in this
case, Hintze was incarcerated at the Utah State Prison. He had
been sentenced to a zero-to-five-year term in August 2017 after he
pled guilty to one count of attempted forcible sexual abuse, a
third-degree felony. Hintze had one other previous offense—a
2011 class A misdemeanor conviction for attempted unlawful
sexual activity with a minor. In March 2018—about a week before
the charges were filed in this case, and when he had served just a
few months of his prison sentence in Case 3226—he came up for
a parole hearing but was not granted parole; the Board scheduled
another parole hearing for March 2020, and told Hintze that he
needed to complete sex offender treatment in the prison. By
January 2020, Hintze had completed the required treatment, and
presented himself to the Board once again in March 2020; at that
point, Hintze had served more than two-and-a-half years of his
maximum five-year sentence. But the Board again denied his
request for parole, this time telling him that because he had an
outstanding unresolved criminal case—this case—he would not
be paroled, at least not until that case was resolved.

¶49 Hintze asserts that, if this case had been timely prosecuted
in 2018, he would have been paroled in March 2020 in Case 3226.
Stated another way, Hintze contends that, because of the State’s
delay in bringing this case, he ended up serving several additional
months in jail—from March until at least the fall of 2020—in Case
3226. Hintze’s argument certainly has strength, and requires us to
examine more closely both (1) the hypothetical world that would

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State v. Hintze

have existed had the State timely prosecuted this case, and (2) the
precise level of causal link that is required for Hintze to
demonstrate prejudice in this context.

1

¶50 To assess prejudice, we must ask ourselves whether the
State’s delay in prosecuting this case caused any harm to Hintze.
And to meaningfully undertake that inquiry, we must compare
what actually happened with what would have happened to
Hintze had the State moved forward with the case in 2018. We
acknowledge that engaging in this type of counterfactual
hypothetical exercise necessarily entails some level of guesswork.
But this seems definitionally bound up in any prejudice inquiry:
after all, prejudice cannot be meaningfully assessed without some
comparative examination of what did happen to Hintze and what
we think would have happened to Hintze under hypothetical
circumstances that did not actually come to pass. See State v. Ellis,
2018 UT 2, ¶ 42, 417 P.3d 86 (declaring that “[p]rejudice analysis
is counterfactual,” and stating that such an analysis requires
consideration of “a hypothetical—an alternative universe in
which” the error or event in question did not occur).

¶51 Under the circumstances presented here, if the State had
moved forward with prosecution of this case in a timely manner
in 2018, Hintze would quite probably have spent less overall time
incarcerated. There are several potential scenarios to consider.

¶52 First, we must consider the hypothetical world in which
Hintze filed a motion to suppress in 2018—as he eventually did in
2020—and in which that motion was granted (as Judge Tenney
believes it should have been, a conclusion with which we do not
disagree). Had that occurred in 2018, the State would have had to
decide whether to dismiss the case in the interests of justice, or to
proceed to trial with limited evidence. If the State had decided to
dismiss the case, or if Hintze had won an acquittal at a trial in

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State v. Hintze

which the State could present only limited evidence, the previous
existence of this case would not have negatively impacted
Hintze’s chances for parole in March 2020. Hintze testified, at the
motion to dismiss hearing, that “what stopped [him] from being
paroled” was the presence of this unresolved case. That testimony
stands unrebutted on the record before us. Accordingly, we have
no evidence-based reason to believe that, if this case had been
resolved in Hintze’s favor prior to March 2020, he would have
been denied parole. Any contrary conclusion is based on extra-
record speculation. If we limit our analysis to what appears in the
record before us, we have no choice but to conclude that it is more
likely than not that, had the thing that “stopped” Hintze “from
being paroled” been removed from the equation, Hintze would
have been paroled.

¶53 But even if we indulge in extra-record speculation—as is
sometimes required by the nature of a prejudice inquiry—about
what would have happened at the March 2020 parole hearing, it
is clear that Hintze’s request for parole would have been far from
frivolous under the circumstances. Indeed, we think he would
have been a good candidate for parole, based on what we know
about this case. By March 2020, he had served over two-and-a-half
years in prison, more than half of his maximum sentence. He had
successfully completed sex offender treatment, as he had been
asked to do at his last parole hearing. And he would have had no
unresolved criminal cases. At that point, we can certainly envision
corrections officials deciding to free up a bed at the prison by
affording Hintze an opportunity to demonstrate, under
supervision in the community, that he could use the tools he
learned in his recent treatment program. Indeed, under those
circumstances, we think it quite probable that Hintze would have
been granted parole. It is, of course, possible to speculate
otherwise. But we find it reasonably probable that, had this case
been resolved in Hintze’s favor in 2018, he would have been
afforded the opportunity for parole in March 2020.

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State v. Hintze

¶54 And that conclusion does not change even if we assume,
for the purposes of the discussion, that the motion to suppress
would have been denied in 2018 (as it was in reality). In that
alternative scenario, it remains very likely that the case would
have been resolved—likely through a plea—well prior to March
2020. And even if Hintze had pled guilty to (or been convicted of)
the misdemeanor charge following the denial of his suppression
motion, his overall time behind bars would likely not have been
materially affected.

¶55 Let’s start with the uncontroversial proposition that, if this
case had been a standalone case involving a defendant who was
not already incarcerated in another case, the defendant would
likely have received a relatively light sentence. The crime, after
all, involved a man sitting on a park bench with a teenage family
friend; there were no allegations of other improper behavior.
Recall that, in reality, the judge sentenced Hintze to no additional
jail time, and simply closed the case. To be sure, the State
indicated at sentencing that, “under normal circumstances,” it
would have asked for at least some “jail time” as opposed to
simply closing the case. But in our standalone-case scenario, we
do not find it likely that a judge would have ordered the
defendant to spend more than thirty to sixty days behind bars.

¶56 Hintze’s situation was different, of course, because he was
already in prison on Case 3226. Because of that, a hypothetical
2018 sentencing judge might very well have decided to just
sentence Hintze to the maximum indeterminate sentence—up to
365 days behind bars, to be served in the prison where Hintze was
already being housed—and then asked the parties for input on
whether the sentence should be imposed concurrently with, or
consecutively to, the sentence Hintze was already serving in Case
3226. We know that the State would have asked for the sentence
to “run consecutive” to the prison sentence Hintze was already
serving. We imagine the defense would have asked for concurrent
sentences. And we think, in all likelihood, the sentencing judge

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State v. Hintze

would have imposed concurrent sentences. But ultimately,
whether the judge imposed concurrent or consecutive sentences
would not likely have mattered much to Hintze’s overall time
behind bars, because there is no indication either in the record
before us or in our own understanding of the situation that the
outcome of that sentencing conundrum would have had much
effect on Hintze’s parole eligibility.

¶57 As we understand it, had Hintze been ordered to serve a
concurrent sentence, his presumptive total maximum prison
sentence would have been increased by 36.5 days (10% of the
shorter sentence), meaning that he would have been facing a
prison sentence of zero-to-5.1 years (instead of zero-to-five years).
See Adult Sent’g & Release Guidelines 26 (Utah Sent’g Comm’n 2021)
(stating that, for concurrent sentences, “10% of the shorter
sentence [will be] added to the full length of the longer sentence”).
And had Hintze been ordered to serve consecutive sentences, his
total maximum prison sentence would have been increased by 146
days (40% of the shorter sentence), meaning that he would have
been facing a prison sentence of zero-to-5.4 years (instead of zero-
to-five years). See id. (stating that, for consecutive sentences, “40%
of the shorter sentence [will be] added to the full length of the
longer sentence”). There is nothing in the record to indicate that
these slight increases in Hintze’s presumptive maximum sentence
would have had any negative impact on Hintze’s parole eligibility
or the scheduling of parole hearings. In all likelihood, Hintze
would still have been scheduled for a hearing in March 2020.

¶58 The question, then, is whether—in our hypothetical
universe—Hintze would have been paroled at that hearing. We
have already explained why we think Hintze would probably
have been paroled in March 2020 if this case had been earlier
resolved in his favor. And we do not think the outcome of that
March 2020 parole hearing would have been any different if he
had pled guilty to this misdemeanor count in 2018. He still would
have been a good candidate for parole. He still would have

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State v. Hintze

completed sex offender treatment and served roughly half of his
maximum sentence. And he still would have been in a position
where corrections officials would likely have wanted to see how
he would perform under supervision in the community before
their ability to supervise him expired.

¶59 As noted, one can certainly speculate in the opposite
direction, as the dissent does. See infra ¶¶ 118–120. But our
speculation is at least as solid as the dissent’s; indeed, as we see it,
it is at least reasonably probable that, under the specific
circumstances presented here, Hintze would have been afforded
the opportunity for parole in March 2020 if this case had been
resolved in 2018. And since Hintze was not, in actuality, released
from prison until at least the fall of 2020, Hintze has made a
credible showing that he spent additional time behind bars as a
result of the State’s delay in prosecuting this case. Additional time
spent incarcerated, if proven, counts as actual prejudice for
purposes of the Barker analysis. See Barker, 407 U.S. at 532 (listing
“oppressive pretrial incarceration” as one of the types of harm
commonly associated with delays in bringing a case to trial).

2

¶60 We recognize, of course, that a defendant’s right to a
speedy trial is not violated if his claims of prejudice are
“insubstantial, speculative, and premature.” See United States v.
Ewell, 383 U.S. 116, 122 (1966). In this vein, courts have
emphasized that a defendant in this situation must demonstrate
more than the “mere possibility” of prejudice. See United States v.
Vaughan, 643 F. App’x 726, 732 (10th Cir. 2016) (stating that
the “mere possibility of prejudice is not sufficient to support
the position that . . . speedy trial rights were violated” (quotation
simplified)); see also United States v. Butner, 350 F. Supp. 3d
1036, 1043 n.1 (D.N.M. 2018) (holding that the “mere possibility
of a concurrent sentence is too speculative to constitute
prejudice”).

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State v. Hintze

¶61 But while it is clear that a “mere possibility of prejudice” is
too speculative, relatively little has been written with regard to
what the actual causal standard is in this context. And there are
several different possible causal standards. Some courts have held
that defendants can demonstrate prejudice in this context if they
can show a “reasonable possibility of prejudice,” which is
presumably a higher standard than a “mere” possibility of
prejudice. See Tribble v. United States, 447 A.2d 766, 772 (D.C. 1982)
(concluding that the defendant had failed to show a “reasonable
possibility of prejudice” resulting from the delay); State v.
Campbell, 662 P.2d 1149, 1155 (Idaho Ct. App. 1983) (requiring a
defendant to “make a showing of reasonable possibility of
prejudice”); State v. Johnson, 167 S.E.2d 274, 283 (N.C. 1969)
(finding prejudice due to a “reasonable possibility of prejudice”
because of the defendant’s lost chances to seek concurrent
sentencing and earlier parole); State v. Ivory, 564 P.2d 1039, 1044
(Or. 1977) (citing U.S. Supreme Court authority and deeming it
“proper to adopt the rule” in which “the prejudice factor is met if
the evidence taken as a whole shows some reasonable possibility
of prejudice”); see also Moore v. Arizona, 414 U.S. 25, 27 (1973)
(instructing courts not to “overlook the possible impact pending
charges might have on [a defendant’s] prospects for parole”
(emphasis added)); Woody v. United States, 370 F.2d 214, 219 (D.C.
Cir. 1966) (stating that the defendant must produce a “plausible”
claim of prejudice to succeed in a speedy trial claim); State v.
Edwards, 750 S.W.2d 438, 442 (Mo. 1988) (stating that the level of
prejudice sufficient to “require reversal” in the speedy trial
context is “actual prejudice apparent on the record or by
reasonable inference—not speculative or possible prejudice”
(quotation simplified)).

¶62 In other familiar contexts, including the Sixth Amendment
context involving ineffective assistance of counsel claims, we
require defendants to show a “reasonable probability of a
different outcome.” See State v. Garcia, 2017 UT 53, ¶¶ 36, 44, 424
P.3d 171 (stating that, in the ineffective assistance of counsel

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State v. Hintze

context, a defendant must show “a reasonable probability of a
different outcome” in order to demonstrate prejudice); Tillman v.
State, 2005 UT 56, ¶ 29, 128 P.3d 1123 (stating that, in the context
of a prosecutor’s failure to disclose exculpatory material, a
defendant, to demonstrate prejudice, must show “a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different”); see also
State v. Richardson, 2013 UT 50, ¶ 40, 308 P.3d 526 (stating that
errors in interpreting rules of evidence require reversal when
“there is a reasonable likelihood that the verdict would have been
different” (quotation simplified)). The “reasonable probability”
standard is of course more demanding than a “reasonable
possibility” standard, but—at least in the prosecutorial disclosure
context—it has sometimes been described as less demanding than
the familiar “more likely than not” standard, see Tillman, 2005 UT
56, ¶ 29 n.7, which is of course another possible standard that
could be applied in the Barker speedy trial context.

¶63 In our view, it makes the most sense to apply, in this
context, the same standard that we apply in other similar contexts:
the “reasonable probability” standard. Utah courts are familiar
with that standard, and a robust body of case law exists setting
out the contours of what a defendant must show to meet it.

¶64 Applied to the speedy trial context, this means that a
defendant—in cases where the causal link for prejudice is at
issue—must demonstrate at least a reasonable probability that he
or she sustained actual prejudice as a result of the State’s failure
to prosecute the case in a timely manner. This standard can
readily be applied to all types of Barker prejudice. See Barker, 407
U.S. at 532 (identifying three “interests of defendants” that “the
speedy trial right was designed to protect”: “oppressive pretrial
incarceration,” “anxiety and concern of the accused,” and
impairment of the defense’s case). In an “impairment of defense”
situation, for example, a defendant must not only show that a
witness or other evidence has been rendered unavailable by the

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State v. Hintze

State’s delay, but also that the missing evidence would have been
important enough to the trial to make a different outcome
reasonably probable. In an “anxiety and concern” situation,
defendants need to show more than simply that they suffered
from anxiety; they need to show that it is reasonably probable that
the anxiety was caused by the State’s delay rather than by some
other preexisting issue.

¶65 Similarly, as applied to a “pretrial incarceration” situation,
defendants need to show that any claimed additional
incarceration was causally linked to the State’s delay. In the
typical situation, in which a defendant is incarcerated on the case
in question, the showing is often easily made (and may sometimes
simply be assumed). But where a defendant is already
incarcerated on another charge, it will usually be far from obvious
that the defendant’s incarceration is due to the State’s delay in
prosecuting the case in question rather than simply to the
sentence the defendant was already serving; in such situations,
defendants need to show a causal link between the State’s delay
and any claimed additional jail time. And defendants can make
that showing by demonstrating that it is reasonably probable that
any additional incarceration was due to the State’s delay on the
case in question rather than to another ground.

¶66 In this context, our supreme court has often stated that “a
reasonable probability is a probability sufficient to undermine our
confidence in the outcome.” See State v. Grunwald, 2020 UT 40,
¶ 22, 478 P.3d 1 (quotation simplified). And in this case, our
confidence in the outcome of the March 2020 parole proceeding—
where the thing that “stopped” Hintze “from being paroled” was
the existence of this outstanding case—is undermined. After
considering everything we know about the situation, we find it at
least reasonably probable that, had the State timely prosecuted
this case in 2018 as it should have, Hintze would have been
paroled in March 2020, and that therefore Hintze ended up
serving additional time behind bars as a result of the State’s

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State v. Hintze

delay—time that he would not have served if the State had
prosecuted this case promptly.

¶67 This is, of course, a conclusion based in part on educated
guesswork. One can—and the dissent certainly has, see infra
¶¶ 108–120—certainly spin a scenario or two (also, of course,
based on guesswork) in which that would not have been the case.
And we recognize that sentencing judges and parole boards have
wide discretion in imposing sentences and in granting parole. For
precisely this reason, in many cases in which a defendant claims
prejudice from something like a lost chance at parole or a
concurrent sentence, the defendant’s claims may be too
speculative to credit. See, e.g., United States v. Nixon, 919 F.3d 1265,
1275 (10th Cir. 2019) (stating that the defendant’s “theory of
prejudice . . . rests on speculation”). But that does not mean that
all such claims are too speculative to credit. In some cases—like
this one—the claim will be sufficiently supported by the facts of
the case, by reasonable inferences to be drawn therefrom, and by
common experience, and will therefore rise above mere
speculation. Indeed, on the facts presented here, we consider it
more speculative to conclude that Hintze was not prejudiced than
to conclude that he was. Stated another way, we consider it at least
reasonably probable that Hintze sustained actual prejudice in the
form of longer incarceration as the result of the State’s delay. And
this is sufficient. Accordingly, the important fourth Barker factor
also weighs, at least to some extent, in Hintze’s favor.

E

¶68 Our final task is to balance the four factors. But we need
not linger very long at this task, because all four factors weigh in
Hintze’s favor. Under these circumstances, the Barker balancing
test comes out quite clearly in Hintze’s favor, and compels us to
conclude that Hintze’s constitutional right to a speedy trial was
violated here.

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State v. Hintze

¶69 As discussed above, in our view it is reasonably probable
that Hintze sustained prejudice—additional incarceration—as a
result of the State’s delay in prosecuting this case. But even if the
result of the prejudice analysis had been somewhat less clear, the
balancing test would still have come out in Hintze’s favor. The
first three factors—including the important second factor
regarding who is to blame for the delay—all weigh clearly in
Hintze’s favor. And where that is the case, Hintze should win the
balancing test unless the prejudice analysis points convincingly
toward an absence of prejudice. See, e.g., United States v. Brown,
169 F.3d 344, 351 (6th Cir. 1999) (stating that the “amount of
prejudice that the defendant must show depends on the reasons
for the delay”); United States v. Lonich, 23 F.4th 881, 896–97 (9th
Cir. 2022) (stating that the “amount of prejudice required to
trigger a Speedy Trial Clause violation is inversely proportional
to the length and reason for the delay” (quotation simplified)).
Stated another way, given the fact that the first three Barker factors
so clearly line up in Hintze’s column, he should win the overall
balancing test even if one were to conclude that the prejudice
question was kind of a close one. See Barker, 407 U.S. at 533 (stating
that “none of the four factors” are dispositive, and that courts
should “engage in a difficult and sensitive balancing process . . .
carried out with full recognition that the accused’s interest in a
speedy trial is specifically affirmed in the Constitution”). As
demonstrated by the amount of ink spilled on this issue in this
opinion, the prejudice question here is at least that.

CONCLUSION

¶70 Accordingly, we reverse the district court’s order denying
Hintze’s motion to dismiss and remand this case with instructions
for the district court to dismiss the charge.

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State v. Hintze

TENNEY, Judge (dissenting):

¶71 In the above opinion, the majority holds that Chad Hintze’s
Sixth Amendment right to a speedy trial was violated, thus
necessitating the dismissal of the charge. I respectfully dissent
from that decision. As I explain below in Part I, while the State
admittedly took two years to prosecute Hintze, the delay was an
inadvertent mistake (as opposed to being an act of intentional
delay), the case was resolved within weeks of the time that Hintze
first asserted his right to a speedy trial, and, most importantly,
Hintze has not demonstrated that he suffered any actual
prejudice from the delay. Under these circumstances, I don’t
believe that Hintze’s constitutional right to a speedy trial was
violated. I would therefore affirm the district court’s denial of that
motion.

¶72 Because I would affirm that denial, I would then reach the
other issue that Hintze has raised on appeal: whether the district
court should have granted his motion to suppress. On that, I agree
with Hintze. As I explain in Part II, I believe that officers seized
Hintze before they developed reasonable suspicion that any
criminal activity was afoot. I would therefore reverse the district
court on that basis and remand for further proceedings.

I. Sixth Amendment Right to a Speedy Trial

¶73 The Sixth Amendment right to a speedy trial is
“amorphous, slippery, and necessarily relative.” Vermont v.
Brillon, 556 U.S. 81, 89 (2009) (quotation simplified). When a
defendant claims that his right to a speedy trial was violated,
courts assess the claim by balancing four factors: (1) the “[l]ength
of delay,” (2) “the reason for the delay,” (3) “the defendant’s
assertion of his right,” and (4) whether the delay caused
“prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530
(1972).

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State v. Hintze

¶74 In Part I.A, I’ll first discuss how I believe each factor should
be assessed in this case. In Part I.B, I’ll then discuss how I would
balance the factors in this case. As explained there, I don’t believe
that Hintze’s speedy trial right was violated under the
circumstances of this case.

A. The Barker factors

1. Length of the delay

¶75 The first Barker factor looks at the length of the delay. “The
length of the delay is to some extent a triggering mechanism. If
the delay is not uncommonly long, the inquiry ends there.” State
v. Younge, 2013 UT 71, ¶ 18, 321 P.3d 1127 (quotation simplified).
If it is, however, courts then consider all of the factors. See Doggett
v. United States, 505 U.S. 647, 652 n.1 (1992). While the length of
delay that will provoke a full “speedy-trial inquiry is necessarily
dependent upon the peculiar circumstances of the case,” “as a
general matter, a delay approaching one year is enough to trigger
a speedy-trial inquiry.” State v. Thompson-Jacobson, 2022 UT App
29, ¶ 10, 508 P.3d 604 (quotation simplified).

¶76 Here, Hintze was charged in March 2018, and he pleaded
guilty in September 2020. This was a delay of over two years, and
it was therefore more than enough to trigger the full four-factor
inquiry.

2. Reason for the delay

¶77 The second Barker factor looks to “whether the government
or the criminal defendant is more to blame for that delay.”
Doggett, 505 U.S. at 651. This court has previously explained that
the reasons for delay can be classified as “deliberate, neutral, or
valid.” Thompson-Jacobson, 2022 UT App 29, ¶ 13; accord Barker, 407
U.S. at 531 (recognizing the “different weights” of various reasons
for delay, including the “more neutral reason” of the State’s
“negligence or overcrowded courts”); Younge, 2013 UT 71, ¶ 19

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State v. Hintze

(recognizing that “there are more neutral reasons for delay”).
Although neutral reasons for delay are “weighted less heavily”
than deliberate ones, they still weigh against the State because the
“ultimate responsibility for such circumstances must rest with the
government rather than with the defendant.” Barker, 407 U.S. at
531; see also Doggett, 505 U.S. at 657.

¶78 Here, the prosecutor explained that there was “a mistake
somewhere” that caused the delay. Hintze agreed with this
characterization in his appellate brief, and he has never argued
that the State made any deliberate effort to delay the case.
Moreover, once this mistake was discovered, the case moved
forward relatively quickly: Hintze learned of the outstanding
charges in March 2020, he was appointed counsel in June 2020, the
parties fully litigated two potentially dispositive defense motions
in August and September 2020, and the case was resolved by way
of a plea in September 2020.

¶79 Thus, this case falls under the neutral category of reasons
for the delay. See Thompson-Jacobson, 2022 UT App 29, ¶ 13. So
while this factor does weigh against the State, it does so less
heavily than it would if there had been a showing of deliberate
delay by the State.

3. Assertion of the speedy trial right

¶80 The third factor considers the “defendant’s assertion of his
right” to a speedy trial. Barker, 407 U.S. at 530. Such an inquiry is
appropriate because while the “primary burden” is “on the courts
and the prosecutors to assure that cases are brought to trial,” a
defendant still “has some responsibility to assert a speedy trial
claim.” Id. at 529. And like the other Barker factors, this factor is
analyzed in “light of all the circumstances.” Thompson-Jacobson,
2022 UT App 29, ¶ 23.

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State v. Hintze

¶81 This factor hasn’t received much attention in past Utah
appellate decisions. Other courts that have looked at it, however,
have recognized (persuasively, I think) that this factor turns on
whether and when “the government and the court were put on
notice that a defendant has asserted his right to a speedy trial.”
United States v. Black, 918 F.3d 243, 263 (2d Cir. 2019) (quotation
simplified); accord United States v. Battis, 589 F.3d 673, 681 (3d Cir.
2009) (focusing on whether the defendant made “a reasonable
assertion of the right so as to put authorities on notice of his Sixth
Amendment claim” (quotation simplified)); State v. Buckner, 738
S.E.2d 65, 72 (Ga. 2013) (holding that a defendant must “put the
government on notice that he would prefer to be tried as soon as
possible” (quotation simplified)).

¶82 It makes sense that this factor should turn on notice of this
particular kind of request. Once the defendant informs the State
that he is asserting his right to a speedy trial, the State knows that
it must act expeditiously to bring the case to trial, lest it potentially
be on the hook for a speedy trial violation. But in a similar vein,
by making such a request, the defendant is also informing the
court that he’s desirous to move forward to trial, which then acts
as something of an assurance that the defendant will now do his
part to move the case toward a prompt and final resolution. 5

5. This is why the analysis of the third Barker factor isn’t limited to
when the defendant asserted the right. Rather, it also takes into
account “whether the defendant’s behavior during the course of
litigation” actually “evince[d] a desire” to “go to trial.” United
States v. Koerber, 10 F.4th 1083, 1110 (10th Cir. 2021) (quotation
simplified); see also Barker v. Wingo, 407 U.S. 514, 521 (1972)
(“Delay is not an uncommon defense tactic.”). If a defendant has
asserted his right to a speedy trial but then acts to delay that trial,
he accordingly does not receive the benefit of this factor. See, e.g.,
State v. Samora, 2022 UT App 7, ¶ 29, 504 P.3d 195 (the third factor
(continued…)

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State v. Hintze

¶83 But because this factor largely hinges on when the
defendant provided the State and the court with such notice, the
defendant’s action must be sufficiently specific. In this sense, the
defendant’s “speedy-trial demand” should be “unambiguous.”
Henson v. State, 407 S.W.3d 764, 769 (Tex. Crim. App. 2013). Or, to
put it differently, a “defendant invoking his speedy trial right
must do so in a manner concretely enough to put the government
on notice that he would prefer to be tried as soon as possible.”
Labbee v. State, 869 S.E.2d 520, 532 (Ga. Ct. App. 2022) (quotation
simplified). And while this might not require the talismanic
utterance of a particular phrase, “at the very least, a defendant
should manifest his desire to be tried promptly.” United States v.
Duran-Gomez, 984 F.3d 366, 378 (5th Cir. 2020) (quotation
simplified).

¶84 Our recent decision in in State v. Thompson-Jacobson, 2022
UT App 29, 508 P.3d 604, illustrates this. There, a pro se defendant
wrote a letter to the court requesting “a motion to dismiss form,
information about his case, and a list of all the criminal defense
forms.” Id. ¶ 5 (quotation simplified). A speedy trial issue later
arose on appeal, and the inquiry partially turned on whether this
letter qualified as an assertion of the speedy trial right. We
“acknowledge[d] the difficulty faced by” a pro se defendant “in
asserting his right to a speedy trial without the assistance of
counsel.” Id. ¶ 16. But even so, we concluded that “those

did not weigh in the defendant’s favor because “it was almost
exclusively [the defendant] who delayed the trial”); State v. Miller,
747 P.2d 440, 443 (Utah Ct. App. 1987) (the delay was not
“weighed heavily against the” State where the defendant’s own
“antics” caused delays in prosecution); Koerber, 10 F.4th at 1109–
10 (the third factor “weigh[ed] heavily” against the defendant
because, although he had asserted the right to a speedy trial, he
then “requested several continuances and deadline extensions,”
behavior that was “hardly characteristic of a desire for a speedier
process”).

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State v. Hintze

difficulties” did “not allow us to construe” the letter “as an
assertion of a right that was neither mentioned nor alluded to.” Id.
We further held that it “would set poor precedent” to “imply that
any ex-parte communication with the court” that merely
“indicat[es] a desire to move forward with the prosecution”
qualifies as an assertion of the right to a speedy trial. Id. (quotation
simplified).

¶85 I believe that the same core defect exists here too. Hintze
asks us to construe his March 2020 letter as an assertion of his right
to a speedy trial. In that letter, Hintze provided the district court
with his identifying information, his location in jail, and the case
number for the pending charge in this case. Hintze also asked the
court to appoint him an attorney, and he further said that he
“would like to set up video court.” But Hintze did not request a
trial, let alone a speedy trial, nor did he cite or somehow invoke
the Sixth Amendment. Because of this, I don’t see anything in this
letter that would have put the State and the court on notice that
Hintze was invoking this specific right, as opposed to making a
request to, in the words of Thompson-Jacobson, “move forward
with the prosecution” in some undefined or more general way. Id.
(quotation simplified).

¶86 The majority holds otherwise, choosing to “[r]ead” the
letter “liberally” and concluding that Hintze was asking the court
“to get his case moving toward resolution, through trial or
otherwise.” Supra ¶ 36 (emphases added); see also supra ¶ 38
(construing the letter as evincing “a desire to get the case moving
toward trial” (emphasis added)). But Hintze never said anything
in that letter about requesting a “trial,” let alone a speedy one, nor
did he say anything about being ready or willing to promptly
“resolve” the case as a whole. All that Hintze said was that he
wanted “counsel” and “video court.”

¶87 I’m cognizant of the fact that Hintze was pro se at this
point. But even so, I just don’t know what Hintze meant by “video

20200787-CA 36 2022 UT App 117
State v. Hintze

court.” Since nothing had yet happened in the case, and since
Hintze was requesting counsel in that same paragraph, I think the
most natural reading is that he was asking for something akin to
a scheduling conference or even an initial appearance (which,
after all, is where courts would typically appoint counsel). To be
fair, maybe he did mean to ask for something more. But if he did,
he certainly didn’t say what, exactly, it was that he was asking for.

¶88 This is why I part ways with the majority about how to
assess Hintze’s letter. The majority places great emphasis on its
view that by requesting “counsel” and “video court,” Hintze “was
trying to accelerate” the case. Supra ¶ 36. And when discussing
what Hintze did after writing this letter, the majority makes much
of the fact that Hintze requested a preliminary hearing a short
time later. See supra ¶ 40.

¶89 But a criminal case has many steps, and for case-specific or
idiosyncratic reasons, a particular defendant might want to
“accelerate” the case and get to or through some of the case’s
earlier steps without ever wanting to get to the final step of a trial,
let alone speedily. A previously unrepresented defendant might
want a hearing so that the court can appoint counsel, and he might
want counsel even if he has no desire to ever go to trial. He might
also want a preliminary hearing in the hopes that the court will
dismiss the charges, thereby sparing him the prospect of going to
trial; and even if he suspects that some of the charges will survive
the preliminary hearing, he might still want that preliminary
hearing because of the potential strategic benefits that would
come from testing the State’s case or from whittling down the
number of pending charges. And a defendant might also want to
file motions for reasons that have nothing to do with moving
forward to trial. The Tenth Circuit’s recent decision in United
States v. Koerber, 10 F.4th 1083, 1009 (10th Cir. 2021), provides an
example of this, where the defendant filed numerous and lengthy
motions in support of his effort to “intentionally delay[] his case.”
(Quotation simplified.)

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State v. Hintze

¶90 But Barker’s third factor doesn’t turn on the defendant’s
mere participation in the pretrial process. Barker was much more
specific: the Court directed courts to consider the “defendant’s
assertion of his speedy trial right.” 407 U.S. at 531. This is a
particular right that has a particular source and a particular
meaning, and I think that Barker meant what it said. So to gain the
benefit of this factor, I believe that a defendant must do something
that puts the court and the State “on notice that he would prefer
to be tried as soon as possible.” Labbee, 869 S.E.2d at 532 (emphasis
added). While I respect where my colleagues are coming from, I
don’t believe that requests for “counsel” or “video court” or even
a preliminary hearing (which is, of course, a decidedly different
thing than a trial) are individually or collectively the same as a
request for a speedy trial.

¶91 By treating these as being the functional equivalent
anyway, I’m worried that the majority risks watering this factor
down so much that it will lose its intended and independent
meaning. In District of Columbia v. Cruz, 828 A.2d 181 (D.C. 2003),
the D.C. Court of Appeals expressed a similar concern in a slightly
different context. There, local defense attorneys had a practice of
“generally assert[ing] the constitutional rights of defendants at
arraignment hearings,” and the issue on appeal was whether such
an assertion qualified as an assertion of the right to a speedy trial
for purposes of the Barker test. Id. at 183. The court of appeals held
that it didn’t, explaining that “if such a generalized assertion of all
constitutional rights were sufficient, this prong of the test would
be meaningless.” Id. The court instead insisted that, for purposes
of this factor, “a defendant must make a specific assertion of a
speedy trial violation.” Id. Like the D.C. Court of Appeals, I would
require something more specific too.

¶92 In my view, Hintze didn’t invoke the right until August
2020, which was when he filed his motion to dismiss based on the
State’s alleged failure to speedily try him. I believe that we should

20200787-CA 38 2022 UT App 117
State v. Hintze

therefore regard August 2020, not March 2020, as the operative
date for purposes of the third Barker factor.

¶93 This leaves the final question, which is how to assess this
factor. As an initial matter, and at the risk of stating what should
be obvious, I don’t believe that we can hold it against Hintze that
he didn’t assert the speedy trial right from the filing of the charge
in March 2018 until March 2020, given that Hintze didn’t yet
know about the charge during that entire period. See generally
Thompson-Jacobson, 2022 UT App 29, ¶ 23 (holding that this factor
is analyzed in “light of all the circumstances”). I also don’t believe
that Hintze’s failure to assert the right from March 2020 to June
2020 should be counted against him, and this is so because he
didn’t yet have counsel. See Barker, 404 U.S. at 529 (recognizing a
difference between a defendant who “knowingly fails to object”
on speedy-trial grounds and “a situation in which no counsel is
appointed”).

¶94 What we’re left with, then, is this: Hintze’s counsel was
appointed in June 2020, and he asserted the right in August 2020.
I agree that this was a relatively prompt assertion of the right. For
reasons I discuss more fully below in Part I.B, however, I don’t
believe that, under the particular circumstances of this case, this
factor ultimately compels us to conclude that Hintze’s speedy trial
right was violated.

4. Prejudice

¶95 The fourth Barker factor looks at whether there was
“prejudice to the defendant.” Barker, 407 U.S. at 530.

¶96 For this factor to weigh in favor of the defendant, the
defendant must make a “persuasive allegation that prejudice
resulted from the delay.” State v. Stilling, 770 P.2d 137, 143 (Utah
1989). As explained by the Supreme Court, the mere “possibility
of prejudice” is generally insufficient. United States v. Loud Hawk,

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State v. Hintze

474 U.S. 302, 315 (1986); accord Jackson v. Ray, 390 F.3d 1254, 1264
(10th Cir. 2004). In State v. Mejia, 2007 UT App 337, ¶ 14, 172 P.3d
315, we therefore faulted the defendant for providing “no factual
support” for his prejudice argument. And in a string of cases, the
Tenth Circuit has likewise held that a defendant must “show
definite and not speculative prejudice” to gain the benefit of this
factor. See, e.g., Koerber, 10 F.4th at 1110; United States v. Medina,
918 F.3d 774, 782 (10th Cir. 2019); United States v. Madden, 682 F.3d
920, 929 (10th Cir. 2012).

¶97 It’s therefore understood that in most cases, the defendant
must show actual prejudice to gain the benefit of this factor. But
there’s an exception to that requirement: namely, in cases of
“excessive delay,” some forms of prejudice can be presumed.
Doggett, 505 U.S. at 655; see also Thompson-Jacobson, 2022 UT App
29, ¶¶ 21–22. I don’t see any authority suggesting that a two-year
delay qualifies as “excessive” for purposes of this inquiry,
however, so I don’t believe that Hintze is entitled to the
presumption of prejudice. As a result, to claim the benefit of this
factor, Hintze must demonstrate that this delay actually
prejudiced him.

¶98 When assessing claims of speedy trial prejudice, courts
commonly look to the three interests that the right was “designed
to protect.” Barker, 407 U.S. at 532. These interests are: “(i) to
prevent oppressive pretrial incarceration; (ii) to minimize
anxiety and concern in the accused; and (iii) to limit the possibility
that the defense will be impaired.” Id.; see also Thompson-Jacobson,
2022 UT App 29, ¶ 18. “Of these, the most serious is the last.” State
v. Cornejo, 2006 UT App 215, ¶ 33, 138 P.3d 97 (quotation
simplified).

¶99 In this case, Hintze doesn’t argue that his defense was
“impaired” by the delay. To the contrary, he acknowledges in his
brief that he is not making such an argument. He has therefore

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State v. Hintze

conceded “the most serious” of the interests that are typically at
issue in a speedy trial prejudice analysis. Id. 6

¶100 Hintze instead focuses on the two other protectible
interests, arguing that the delay in prosecuting him caused both
“oppressive pretrial incarceration” and unwarranted “anxiety.”
But under the unique circumstances of this case, Hintze faces a
daunting hurdle: during the entire period in which this case was
pending, Hintze was incarcerated because of his unrelated
conviction in Case 3226.

¶101 This must matter. After all, if a defendant “was
incarcerated for a separate offense during the delay,” “as a
practical matter,” his existing incarceration will typically impair
his ability to show that a delay in prosecuting him for another
offense was the actual source of any “oppressive pretrial
incarceration” or anxiety based on his incarceration. West v.
Symdon, 689 F.3d 749, 753 (7th Cir. 2012). So here, while there was
indeed a two-year delay in bringing Hintze to trial in this case,
Hintze still needs to show how this delay (as opposed to the effects
of his incarceration in the unrelated Case 3226) actually caused
him any oppressive incarceration or anxiety. And on the anxiety
front, Hintze’s burden is further complicated by his own
admission that he didn’t even know about this charge until March
2020. Having had no knowledge about this case until then, Hintze
could not have suffered any anxiety from this case until, at the
very earliest, March 2020.

6. I acknowledge that there might be some circumstances in which
an already-incarcerated defendant might be able to make an
impairment-of-defense claim (such as when he can show that
there was a loss of evidence in the meantime). But as noted, Hintze
makes no such claim here, instead relying on the fact of
incarceration itself and the associated anxiety.

20200787-CA 41 2022 UT App 117
State v. Hintze

¶102 In light of this, Hintze’s prejudice argument turns on his
assertion that if this case had been resolved more speedily, he
would have been released from prison in Case 3226 in March 2020
and that those extra months of incarceration (i.e., the months of
incarceration between March and September 2020) are sufficient
to show Barker prejudice. The majority accepts this assertion based
on two principal conclusions: (1) its belief that, “in all likelihood,
the sentencing judge” in this case “would have imposed
concurrent sentences” with the sentence previously imposed in
Case 3226 and (2) its belief that, even if the sentences had run
consecutively, it’s still “likely” that Hintze would have been
paroled in Case 3226 sometime sooner than he actually was. Supra
¶ 56. I believe that the majority is mistaken on both conclusions,
and this is so for both general and case-specific reasons. 7

7. The majority briefly sets forth a third possibility: namely, that
based on my analysis of why the motion to suppress should have
been granted (an analysis that the majority does “not disagree”
with), that motion might have been granted in 2018, thus leading
to either a non-prosecution or an acquittal, thereby removing this
case as an impediment to Hintze being paroled in March 2020.
Supra ¶ 52.
Unlike the majority, however, I don’t believe that we can
rewind the clock and act as if the district court would have seen
the light on the suppression issue in the first instance. It seems to
me that, for purposes of a speedy trial analysis, we should assume
that the district court would have acted as it did originally,
meaning that Hintze would have prevailed on the suppression
issue only following an appeal of the denial of his motion to
suppress.
In any event, I’m also not convinced that granting the
suppression motion necessarily does weaken the State’s case in an
outcome-determinative way. Hintze’s motion sought to suppress
his statement to the first officer about his name. But while that
(continued…)

20200787-CA 42 2022 UT App 117
State v. Hintze

¶103 First, the general reasons. On the concurrent/consecutive
component of this, the majority points to a pre-Barker decision
from 1969 in which, in a single sentence, the Supreme Court
opined that the “possibility” that an incarcerated defendant might
have lost the chance to receive a concurrent sentence in some
other case might be enough to establish speedy trial prejudice.
Supra ¶ 45. And on the broader loss-of-parole-possibility
component, the majority points to a few cases suggesting that
such a loss might be enough too. Supra ¶¶ 44–45.

¶104 But the Supreme Court has more recently stated that the
mere “possibility of prejudice is not sufficient” to carry the
defendant’s burden on the fourth Barker factor. Loud Hawk, 474
U.S. at 315. Given that statement, I think we should be very wary
of concluding that a defendant has established Barker prejudice
based on our speculation about how a purely discretionary
sentencing decision might have played out in a hypothetical
counterfactual world where the defendant had been more
speedily prosecuted. In such a scenario, the number of uncertain
variables in play, particularly with respect to the predicate
sentencing decision itself, makes the situation an ill fit for a
subsequent judicial determination that Barker prejudice (which,

conversation was occurring, a separate officer spoke to the
teenager and then to her mother, and during the conversation
with the mother, that officer also learned Hintze’s name. Hintze
has not sought to suppress the information obtained from the
mother (and if he did, he’d need to establish, among others, that
he has standing to make such a challenge). But if that information
stays in, the State could still identify Hintze as a sex offender who
was not legally permitted to be in the park. For this additional
reason, I don’t believe that our apparently shared view on the
proper resolution of Hintze’s suppression motion provides a basis
for concluding that Hintze suffered Barker prejudice.

20200787-CA 43 2022 UT App 117
State v. Hintze

again, turns a showing of “actual prejudice”) has actually been
established.

¶105 Numerous cases have expressed such wariness. In United
States v. Nixon, 919 F.3d 1265, 1275 (10th Cir. 2019), for example,
the Tenth Circuit recently considered a case in which the
defendant claimed that a delay in prosecuting him had prejudiced
him by impairing his ability to earn “good-time credits,” which
could have then supported his earlier release from federal prison.
But the Tenth Circuit explained that it was uncertain whether the
defendant actually would have behaved well in prison in a
hypothetical world in which the case had been resolved more
quickly, and it also pointed out that even if he had, “prison
officials” still “enjoy[ed] discretion as to whether to award good-
time credits.” Id. Because of “the uncertainties of how [the
defendant] would behave” and of “how authorities would
exercise their discretion,” the Tenth Circuit concluded that the
defendant’s “theory of prejudice rest[ed] inherently on
speculation.” Id. Because of this, the court held that these
speculative possibilities could not establish prejudice on a speedy
trial claim. Id. at 1275–76.

¶106 The Tenth Circuit’s reticence has been shared by a wide
array of courts, with courts commonly concluding that a
defendant did not establish Barker prejudice by speculating that a
discretionary sentencing decision might have gone differently in
a hypothetical world in which the prosecution at issue proceeded
more quickly. See, e.g., United States v. Gonzalez-Avina, 234 F.
App’x 758, 760 (9th Cir. 2007) (rejecting a claim that the delay in
federal prosecution impaired the defendant’s ability to receive
state “good time credits,” thereby violating the defendant’s
speedy trial right, reasoning that “the possibility that [the
defendant] would have served a shorter sentence absent the
pending federal complaint is speculative at best, and will not
support a finding of a Sixth Amendment violation”); United States
v. Butner, 350 F. Supp. 3d 1036, 1043 n.1 (D.N.M. 2018) (rejecting a

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State v. Hintze

claim that the delay prevented the defendant from receiving
concurrent sentences, noting that a “defendant does not have a
right to serve his sentences concurrently” and that the “Tenth
Circuit has made clear . . . that the mere possibility of a concurrent
sentence is too speculative to constitute prejudice”); United States
v. Lainez-Leiva, 957 F. Supp. 390, 392 (N.D.N.Y. 1997) (rejecting a
concurrent-sentences based prejudice claim “because the
Defendant’s criminal history, consisting of four convictions for
criminal possession of a weapon, makes the likelihood of the
Defendant obtaining a concurrent sentence highly speculative”);
Wilson v. State, 329 So. 3d 71, 83–84 (Ala. Crim. App. 2020)
(rejecting a concurrent-sentences-based prejudice claim as
“speculative” because there was “no guarantee that the circuit
court would have ordered” the sentences to run concurrently);
Matthews v. State, 325 A.2d 897, 901–02 (Md. Ct. Spec. App. 1974)
(rejecting the defendant’s argument that she was prejudiced
because “she was denied the possibility of parole because of the
pending charges” because there was “nothing in the record to
demonstrate that [she] would have been paroled even if the
instant case had not been pending”); Commonwealth v. Anderson,
378 N.E.2d 451, 498 (Mass. App. Ct. 1978) (holding that the
defendant failed to show prejudice because the “possibilities that
the outstanding charges may have prevented him from obtaining
parole or concurrent sentences [were] speculative and
unsupported by the evidence”); Commonwealth v. Campbell, 366
N.E.2d 44, 55 (Mass. App. Ct. 1977) (rejecting a defendant’s claim
that the delay prevented her from being paroled because the claim
was “unsupported by evidence or affidavit in the record, [and]
must be treated as speculative”); State v. Irish, 140 N.E.3d 209, 227
(Ohio Ct. App. 2019) (rejecting the defendant’s claim that “he was
prejudiced by the delay because he could have requested a
sentence concurrent to what he was already serving,” because
“the theoretical and speculative loss of the opportunity for a
defendant to serve the sentence on the pending charge
concurrently with the sentence in another case is insufficient to

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State v. Hintze

constitute substantial prejudice to the defendant” (quotation
simplified)).

¶107 Both of the decisions that are driving the majority’s
conclusion are entirely discretionary. The concurrent/consecutive
decision is discretionary with the district court. See, e.g., State v.
Samul, 2015 UT App 23, ¶ 21, 343 P.3d 719. And on the parole
decision, the Board has “unfettered discretion . . . to fix the term
of imprisonment” after a defendant has been sentenced by the
district court. Neese v. Utah Board of Pardons & Parole, 2017 UT 89,
¶ 23, 416 P.3d 663 (quotation simplified). Given the purely
discretionary nature of both decisions, I would require Hintze to
point to something much more definitive before concluding that
he has carried his burden of establishing Barker prejudice. In my
view, his prejudice claim fails for this reason alone.

¶108 Second, even if such discretionary questions could lead to
a prejudice determination in some cases, I don’t believe that
Hintze has shown prejudice on the record before us. Indeed,
there’s good reason from this record to believe that both decisions
would have gone against Hintze if this case had been more
promptly resolved.

¶109 Let’s start with the concurrent/consecutive question.
Again, the majority thinks that “in all likelihood, the sentencing
judge would have imposed concurrent sentences” in this case if it
had been prosecuted more quickly. Supra ¶ 56. I’m not sure why
this is so.

¶110 In her argument at sentencing, the prosecutor told the
court that if this case had not been delayed, she would have asked
the court to impose a “consecutive” term of incarceration on
Hintze. She said that the reason for this request would have been
that as a twice-convicted sex offender, Hintze had now also been
convicted of being in a public park with a teenage girl, an offense
for which she believed Hintze should receive “some additional

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State v. Hintze

punishment.” But even so, she then agreed that Hintze should not
receive any “additional time” in this case—but only because the
case had “been pending for two years” and Hintze had been “in
prison anyway.” After hearing arguments from defense counsel,
the court then agreed to impose no additional jail time on Hintze
for this offense. And in doing so, the reason it gave was its
“concern[] about the failure to prosecute and move the case
forward.”

¶111 Thus, on this record, we have a direct statement from the
prosecutor that she would have asked for consecutive sentences if
there had been no delay (coupled with cognizable reasons for that
request), as well as a statement from the court in which the only
reason it gave for not imposing any additional period of
incarceration was the delay. So in a hypothetical world where that
delay was removed, the only thing this record tells us is that
Hintze was likely on track to receive consecutive sentences, not
concurrent sentences. There’s no basis in this record for
concluding otherwise.

¶112 Accounting for this, the majority surmises that this “would
not likely have mattered much” in the end given the vagaries of
the sentencing guidelines and the parole decision, supra ¶ 56,
which leads to the real focus of its analysis: the question of what
the Board would have done with Hintze’s incarceration in Case
3226 if this case had been resolved sooner. After all, his conviction
in this case was for a class A misdemeanor (subject to up to one
year of jail), while the conviction in Case 3226 was for a third-
degree felony (subject to 0–5 years in prison).

¶113 The record shows that in March 2018, the Board scheduled
a parole hearing for March 2020, with Hintze being instructed that
he needed to complete a sex offender training program “before
being considered for parole.” The record further shows that
Hintze completed his sex offender training program in January
2020. The record then shows that the Board decided at the March

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State v. Hintze

2020 hearing not to release Hintze in Case 3226. Of some potential
note, Hintze later testified at the suppression hearing in this case.
When asked “what stopped [him] from being paroled” in March
2020, Hintze responded: “A warrant was filed that needed to be
adjudicated, this current one.” All parties agree that this was a
reference to the charge in this case.

¶114 In his brief, Hintze initially claims that this means “that he
suffered a delay in parole eligibility as a result of this case.”
(Emphasis added.) The majority seems to accept this framing,
relying on cases in which the defendant’s parole eligibility was
compromised by the delayed case, supra ¶ 46, and then analyzing
the impact of the case at issue in this appeal on “Hintze’s parole
eligibility,” supra ¶¶ 56–57.

¶115 But Hintze points to nothing in the record showing that the
Board thought that Hintze wasn’t “eligible” for parole in March
2020. Instead, Hintze only points to the fact that he was denied
parole in March 2020. The fact that he was denied parole,
however, doesn’t mean that the Board thought that Hintze was
ineligible. It could just as readily mean that the Board thought he
was eligible, considered him for parole at that hearing, and then
chose not to parole him as an exercise of its “unfettered
discretion.” Neese, 2017 UT 89, ¶ 23 (quotation simplified). I see
nothing in the record that says otherwise.

¶116 This leaves Hintze’s testimony that what “stopped” him
from being paroled in March 2020 was that this case “needed to
be adjudicated.” Based on this testimony, the majority concludes
that it’s “at least reasonably probable that, had the State timely
prosecuted this case in 2018 as it should have, Hintze would have
been paroled in March 2020.” Supra ¶ 66. But I think there’s a
critical flaw in this conclusion: namely, it rests on the assumption
that the only thing the Board cared about when it was informed
of this case was that the case was pending, as opposed to the Board

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State v. Hintze

also believing that the outcome of this case might matter to its
determination of when Hintze should be released.

¶117 Even in the cited passage of testimony, Hintze didn’t
directly say the outcome of this case didn’t matter to the Board.
(Nor, for that matter, did he call anyone else who had direct
knowledge to testify about this either.) I think this assertion thus
fails for lack of proof. In any event, I also find the majority’s
speculative conclusion about how it thinks this would have
played out to be difficult to accept. Based on Hintze’s criminal
record that included the 2011 conviction and the 2017 conviction
in Case 3226, the Board was willing to have a parole hearing for
Hintze in March 2020. But in the hypothetical scenario in which
we’re now dwelling—one that adds a conviction in this case to
that same mix—here’s what the Board would have been
confronted with:

• In 2011, Hintze was convicted of attempted unlawful
sexual activity with a minor, a class A misdemeanor.

• Based on the June 2016 park incident at issue in this case,
Hintze was convicted of unlawfully going to a public park,
and the uncontestable facts show that he did so with a
young teenage girl. And since the Board would have had
the authority to look at the facts of record, I think it’s worth
noting that although the teenager’s mother confirmed for
officers that Hintze was indeed a family friend, she also
told officers that Hintze had neglected to tell her that he
was a convicted sex offender. I think it’s fair to surmise that
some parents and some Board members might think this
was a curious omission.

• In 2017, Hintze was convicted in Case 3226 for attempted
forcible sexual abuse, a third-degree felony. In the State’s
opposition to Hintze’s speedy trial motion in this case, the
State informed the court that this 2017 conviction was

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State v. Hintze

based on an incident in “approximately 2014–2015,”
wherein Hintze “walked in on a 14-year-old girl who was
in the shower,” “touched the outside of her vagina,” and
“told her she needed to shave.” Hintze never disputed the
characterization of the facts that supported that
conviction. 8

¶118 Again, even under the majority’s construct, the initial
question is whether Hintze has established that the Board would
have released him in March 2020 (rather than delaying things for
six months like it actually did) if the conviction in this case had
been entered before March 2020. Unlike the majority, I don’t
believe that this is likely. After all, in the real-world version, it
looked to the Board like Hintze committed one sex offense in 2011

8. Because Hintze did not dispute this characterization, I think
we’re safe relying on it here. Regardless, in the sworn plea
statement in that case (case no. 171903226), Hintze admitted that
he had “entered a bathroom where the victim was showering,”
“turned off the lights,” “opened the shower curtain,” and then
“touched the victim on the outside of her vagina with his hand.”
He further admitted that this “touching was not consensual.” The
Board would certainly have had access to this document.
In any event, under rule 201(b)(2) of the Utah Rules of
Evidence, we may also take judicial notice of a fact that “is not
subject to reasonable dispute” and “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Utah R. Evid. 201(b)(2). We have previously
suggested (without deciding) that a court can take “judicial notice
that court filings contained certain allegations, or that findings of
fact were made by another court,” though we posited that it might
cross the line for a court to take judicial notice that the facts from
the prior case were actually true. State v. Cooper, 2011 UT App 412,
¶ 15 n.8, 275 P.3d 250. Here, I believe that we can, at minimum,
take judicial notice that Hintze previously admitted to these
particular facts under oath when entering his plea in Case 3226.

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followed by another offense in 2014 or 2015—two offenses
separated by a gap of a few years. But adding this conviction to
the mix would have shown the Board that after committing a sex
offense involving a teenage girl in 2011, and after then walking in
on a showering 14-year-old girl and touching her vagina in 2014
or 2015, Hintze violated the terms of his sex offender status in June
2016 by going to a public park (and, of note, with yet another
teenage girl). These are three offenses involving three teenage
girls within a five-year period.

¶119 “Once is an accident, twice is a coincidence, three times is
a pattern.” League of Women Voters of Fla., Inc. v. Lee, 2022 WL
969538, at *26 (N.D. Fla. Mar. 31, 2022). Here, nothing suggests
that Hintze’s first offense was an accident. And more to the point,
adding this conviction and these additional details to Hintze’s
first and second offenses now makes it seem like Hintze has a
pattern of engaging in criminal conduct that involves teenage
girls. And that pattern, I believe, would have been even clearer to
the Board if this case had been resolved before Hintze’s March
2020 parole hearing. So if the question before us is whether, in the
hypothetical world in which the Board had three convictions to
consider in March 2020, the Board would have been more lenient
toward Hintze than it was in the real world in which the third case
was simply unresolved in March 2020, I think the most likely
answer to that question is no. 9

9. In speculating otherwise, the majority relies, in part, on the
sentencing guidelines, noting that if the sentences had been
ordered to run consecutively, the guidelines would recommend
an additional 146 days of incarceration for this offense. Supra ¶ 57.
But Utah’s sentencing guidelines “do not create any right or
expectation on behalf of any individual,” and their
recommendations are “advisory only” and “not mandatory.”
Adult Sent’g & Release Guidelines 5, 77 (Utah Sent’g Comm’n 2021).
(continued…)

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State v. Hintze

¶120 I recognize that I might be wrong about this and that it’s
possible that the Board would have gone the way the majority
thinks it would have gone. As noted by the majority, we’re both
indulging in some “guesswork” here.

¶121 But in my view, the fact that we’re both engaged in
guesswork is the very reason that Hintze’s prejudice argument
fails. This is Hintze’s motion, and because of that, he bears the
burden of establishing that he suffered actual prejudice from the
delay in prosecuting him for the June 2016 park offense. With
respect, I believe that there’s just too much maybe at the heart of
the majority’s conclusion that Hintze was prejudiced. Maybe the
district court would have granted the motion to suppress in 2018,
or maybe it would have ordered concurrent sentences, or maybe
the Board would have let Hintze out of prison in Case 3226 in
March 2020 even if it now had a third conviction to consider.
Maybe.

¶122 But again, the Supreme Court has instructed that the mere
“possibility of prejudice is not sufficient” to establish prejudice.
Loud Hawk, 474 U.S. at 315. There’s simply nothing concrete in this
record that establishes that Hintze would have been released any
sooner but for the delay, so his claim of prejudice must necessarily
turn on the “possibility” that he might have been prejudiced. I
would therefore reject his prejudice claim for failure of proof
alone; if pressed, however, I would also reject it because I believe
that it’s more likely that Hintze would have remained

While they “create a starting point” for decision making, the
Board can still consider other “aggravating and mitigating
circumstances” before reaching its final decision. Id. at 6. For the
reasons discussed, I think this is all too speculative to establish
Barker prejudice, and in any event, I think the aggravating
circumstances here—a pattern of criminal conduct involving
teenage girls—suggest that the Board would likely have looked
on a request for earlier release with some disfavor.

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State v. Hintze

incarcerated for the same period of time anyway. As a result, I
believe that this factor must weigh against Hintze in the speedy
trial analysis. 10

10. The majority notes that “relatively little has been written with
regard to what the actual causal standard is” for proving Barker
prejudice. Supra ¶ 61. After noting the existence of “several
different possible causal standards” among the cases, the majority
adopts a “reasonable probability” standard that is similar, in its
view, to the causal standard for prejudice that is employed in
ineffective assistance cases. Supra ¶ 63.
Of the possibilities in play, I note that some jurisdictions
hold that the quantum of proof for Barker prejudice varies
depending on how the other Barker factors are resolved. See, e.g.,
United States v. Brown, 169 F.3d 344, 351 (6th Cir. 1999) (the
“amount of prejudice that the defendant must show depends on
the reasons for the delay”); United States v. Lonich, 23 F.4th 881,
896–97 (9th Cir. 2022) (the “amount of prejudice required to
trigger a Speedy Trial Clause violation is inversely proportional
to the length and reason for the delay” (quotation simplified));
Ussery v. State, 596 S.W.3d 277, 283 (Tex. App. 2019) (the
“accused’s burden of proof” in “showing prejudice varies
inversely with the State’s degree of culpability for the delay”
(quotation simplified)). But I don’t believe it’s necessary to
definitively decide whether this or any other identified causal
standard should be adopted here, however, because I don’t
believe that Hintze has shown prejudice under any of the
identified standards.
Regardless, even accepting the majority’s “reasonable
probability standard,” I note that in the analogous (and similarly
worded) ineffective assistance context, it’s true that a “reasonable
probability” is enough to establish prejudice, but even so, there
must still be a concrete factual underpinning for any conclusion
that there was prejudice. In this sense, the “demonstration of
(continued…)

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State v. Hintze

B. Balancing the factors

¶123 This leads to the final task, which is to determine whether
Hintze’s right to a speedy trial was violated. Again, the “speedy-
trial right is amorphous, slippery, and necessarily relative.”
Brillon, 556 U.S. at 89 (quotation simplified). And it also “take[s]
into account” both the “defendant’s rights” and “the rights of
public justice.” State v. Samora, 2022 UT App 7, ¶ 18, 504 P.3d 195
(quotation simplified).

¶124 As discussed, courts determine whether the right was
violated through Barker’s “four-factor balancing test.” Younge,
2013 UT 71, ¶ 17 (quotation simplified). But unlike some
balancing tests, this is not a discretionary balancing in which
appellate courts defer to the district court. Rather, this task
presents a legal question. See State v. Steele, 2010 UT App 185, ¶ 14,
236 P.3d 161. As a result, it’s up to the reviewing courts to decide
through some sort of legal alchemy whether the particular mix of
factors in a particular case constituted a Sixth Amendment
violation.

¶125 There’s some inherent imprecision associated with this
task. And this imprecision is a product, in part, of the interrelated
nature of the four factors. Barker cautioned that “none of the four
factors” should be regarded as “either a necessary or sufficient
condition to the finding of a deprivation of the right of speedy

prejudice must be a ‘demonstrable reality’” and “not simply a
‘speculative matter.’” Ross v. State, 2019 UT 48, ¶ 111, 448 P.3d
1203 (quoting State v. Chacon, 962 P.2d 48, 50 (Utah 1998)). As
explained above, I believe that Hintze’s prejudice claim runs far
afield of any demonstrable facts and is instead impermissibly
speculative. Thus, even under the causal approach adopted by the
majority, I don’t believe that there is a reasonable probability that
Hintze would have been released earlier without this delay in
prosecution.

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State v. Hintze

trial.” 407 U.S. at 533. And it further explained that the factors are
“related” and “must be considered together with such other
circumstances as may be relevant.” Id.

¶126 But even so, it often turns out that some factors favor the
defendant in a case while others favor the government. Because
of this, courts in such cases must somehow decide which factor(s)
matter most.

¶127 There’s been some inconsistency in the caselaw about how
to assess this. As noted by the majority, for example, the Supreme
Court in one case suggested that the “reason for delay” (the
second factor) is the “flag all litigants seek to capture.” Loud Hawk,
474 U.S. at 315 (1986). And with respect to prejudice (the fourth
factor), the Court has called it a “fundamental error” to require
“an affirmative demonstration of prejudice” to “prove a denial of
the constitutional right to a speedy trial.” Moore v. Arizona, 414
U.S. 25, 26 (1973). But on that same prejudice factor, the Court has
also (and more recently) said that prejudice is a “necessary
ingredient” that is “required to establish a violation of the Sixth
Amendment Speedy Trial Clause.” Reed v. Farley, 512 U.S. 339, 353
(1994).

¶128 As I understand how this is supposed to work, all factors
matter, but they don’t all matter equally. Instead, the prejudice
factor is essentially first among equals, and in the absence of
demonstrated prejudice, a defendant likely cannot establish that
his right to a speedy trial was violated.

¶129 The reason for this prejudice-tilted construct is the remedy
that is associated with a Sixth Amendment speedy trial violation.
The Supreme Court has “repeatedly recognized that the
commission of a constitutional error at trial alone does not entitle
a defendant to automatic reversal. Instead, most constitutional
errors can be harmless.” Washington v. Recuenco, 548 U.S. 212, 218
(2006) (quotation simplified). The exception to this, of course, is

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State v. Hintze

for cases involving structural error, wherein prejudice is
presumed. See State v. Bunker, 2019 UT App 118, ¶ 10, 446 P.3d
153. But the Court has “found structural errors only in a very
limited class of cases,” id. (quoting Johnson v. United States, 520
U.S. 461, 468 (1997)), and it has further cautioned that structural
errors are indeed “rare,” Recuenco, 548 U.S. at 218.

¶130 The “only possible remedy” for a violation of the Sixth
Amendment right to a speedy trial is the dismissal of the charges.
Strunk v. United States, 412 U.S. 434, 440 (1973) (quotation
simplified). As a result, if a court were to hold that a defendant
had established a violation of this right without a showing of
prejudice, the court would essentially be treating a speedy trial
violation as if it were a new form of structural error.

¶131 But Barker accounted for this, albeit in something of a
curious way: it made prejudice part of the test itself, thus
contemplating that prejudice does play some role in this analysis.
But by making prejudice part of the test, Barker left it to the courts
to determine how to balance prejudice alongside the other three
factors.

¶132 To avoid inadvertently converting a speedy trial violation
into a form of structural error, many courts have concluded that a
defendant must affirmatively demonstrate prejudice unless the
other three factors all weigh so heavily in the defendant’s favor
that prejudice can safely be presumed. See, e.g., United States v.
Reagan, 725 F.3d 471, 487 (5th Cir. 2013) (“Once a speedy trial
analysis is triggered, the court determines whether the first three
Barker factors weigh so heavily in favor of the defendant that
prejudice is presumed. In the absence of such a presumption, the
defendant must affirmatively demonstrate prejudice.” (quotation
simplified)); United States v. Machado, 886 F.3d 1070, 1081 (11th Cir.
2018) (holding that a “defendant must demonstrate actual
prejudice unless each of the first three factors weighs heavily
against the government” (quotation simplified)); State v. Flowers,

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State v. Hintze

503 A.2d 1172, 1177 (Conn. 1986) (“Thus, an affirmative showing
of actual prejudice is not essential to a speedy trial claim when the
defendant is able to show that the other three factors weigh
heavily against the State.”); State v. Griffin, 274 A.3d 558, 565 (N.H.
2022) (“Although we typically require a defendant to demonstrate
actual prejudice from a delay to prevail on a speedy trial claim,
when a defendant does not—or cannot—articulate the particular
harm caused by the delay, we inquire whether the length and
reason for the delay weigh so heavily in the defendant’s favor that
prejudice need not be specifically demonstrated.”); State v. Garza,
212 P.3d 387, 400 (N.M. 2009) (“However, if the length of delay
and the reasons for the delay weigh heavily in [the] defendant’s
favor and [the] defendant has asserted his right and not
acquiesced to the delay, then the defendant need not show
prejudice for a court to conclude that the defendant’s right has
been violated.”); Fairbourn v. State, 2020 WY 73, ¶ 59, 465 P.3d 413
(“Should the defendant fail to demonstrate prejudice, the other
three Barker factors must weigh heavily in his favor to establish a
speedy trial violation.” (quotation simplified)). By structuring the
Barker analysis along these lines, these courts assess Barker
prejudice under Barker’s full four-factor rubric, but they do so
while still ensuring that, as with most of our other constitutional
rights, reversal of a conviction happens only when the defendant
was prejudiced. 11

11 . As noted, the Supreme Court has held that in cases of
“excessive” delay, speedy trial prejudice can be presumed, and
the reason for this is the likelihood that an exceedingly long delay
might impair the defendant’s ability to “prove or, for that matter,
identify” how he was prejudiced. United States v. Doggett, 505 U.S.
647, 655 (1992). In such a circumstance, the exceedingly long delay
essentially satisfies the requirement from these cases that the
defendant must show prejudice in the absence of a strong
showing on all the other factors. But as also noted, this case does
(continued…)

20200787-CA 57 2022 UT App 117
State v. Hintze

¶133 Other courts have chosen to elevate prejudice in a slightly
less structured way. The Tenth Circuit, for example, has held that
although a “showing of prejudice may not be absolutely necessary
in order to find a Sixth Amendment violation,” courts should
“have great reluctance to find a speedy trial deprivation where
there is no prejudice.” United States v. Gould, 672 F.3d 930, 939
(10th Cir. 2012) (quotation simplified); see also United States v.
Frias, 893 F.3d 1268, 1275 (10th Cir. 2018) (finding no Sixth
Amendment violation where all but the fourth Barker factor
weighed at least slightly in the defendant’s favor); cf. United States
v. Margheim, 770 F.3d 1312, 1329 (10th Cir. 2014) (“However, in
most circumstances, failure to specify prejudice will eviscerate the
defendant’s [speedy-trial] claim.”).

¶134 And in a somewhat similar vein, many other courts have
simply held that prejudice should be considered the prime or
most important factor in the Barker analysis. The Utah Supreme
Court has suggested as much. See State v. Ossana, 739 P.2d 628, 631
(Utah 1987) (“Finally and most importantly, Barker requires an
inquiry into whether [the] defendant was prejudiced by the
delay.” (emphasis added)). And on this front, other courts have
been more overt. See, e.g., United States v. Shulick, 18 F.4th 91, 102
(3d Cir. 2021) (referring to prejudice as “the most important factor
in the Barker analysis”); United States v. Lozano, 962 F.3d 773, 781
(4th Cir. 2020) (“Prejudice, while not essential to the establishment
of a violation of the right, is a prime issue and a critical factor.”
(quotation simplified)); Symdon, 689 F.3d at 752 (“Prejudice is the
most important of the four Barker factors.”); State v. Leslie, 708 P.2d
719, 725 (Ariz. 1985) (en banc) (holding that of “these four factors,
the length of the delay is the least conclusive and the prejudice
suffered by the defendant is the most important”); State v. Lloyd,
440 A.2d 867, 872 (Conn. 1981) (“[T]he linchpin of the speedy trial
claim is a showing of prejudice . . . .”); Shaw v. State, 645 So. 2d 68,

not present such a circumstance, because there is no claim here
that the delay qualifies as “excessive” for purposes of this test.

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State v. Hintze

70 (Fla. Dist. Ct. App. 1994) (“Actual prejudice is the final and
most important factor . . . .”); State v. Brackett, 377 P.3d 1082, 1090
(Idaho Ct. App. 2016) (“The nature and extent of prejudice is the
most important of the Barker factors.”); State v. Rodriguez, 494 P.3d
155, 163 (Kan. Ct. App. 2021) (“The lack of prejudice to the
defendant weighs heavily in applying the Barker analysis.”);
Phillips v. State, 227 A.3d 779, 795 (Md. Ct. Spec. App. 2020) (“The
most important factor in the Barker analysis is whether the
defendant has suffered actual prejudice.” (quotation simplified));
Berryman v. State, 337 So. 3d 1116, 1133–34 (Miss. Ct. App. 2021)
(“In practice, Barker’s fourth factor—prejudice—often proves to
be the most important in the analysis. While an affirmative
demonstration of prejudice is not strictly necessary to prove a
denial of the constitutional right to a speedy trial, the absence of
prejudice may outweigh the other three factors.” (quotation
simplified)); Coleman v. State, 640 S.W.3d 159, 166 (Mo. Ct. App.
2022) (“The fourth and most important [Barker] factor is prejudice
to the defendant.”); State v. Montoya, 2015-NMCA-056, ¶ 25, 348
P.3d 1057 (“The heart of the speedy trial right is preventing
prejudice to the accused.”(quotation simplified)); State v. Berry,
141 S.W.3d 549, 568 (Tenn. 2004) (“The most important question,
although not determinative in every case, is whether the delay
caused any prejudice to the defendant.”); State v. Turner, 2013 VT
26, ¶ 12, 70 A.3d 1027 (“Finally, the fourth factor looks at the
actual prejudice as a result of the delay. This is the most important
factor.”).

¶135 I agree with the courts that have held that unless the other
factors all weigh heavily in the defendant’s favor, some
affirmative showing of actual prejudice is required for the
defendant to prevail on his speedy trial claim. Again, without
such a requirement, a speedy trial violation would essentially
become a new form of structural error, and I don’t believe that the
Constitution requires that outcome. At minimum, however, I also
agree with the courts that have held that prejudice should at least
be considered the most important of the Barker factors and that, in

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State v. Hintze

the absence of demonstrated prejudice, a speedy trial claim
should normally be rejected.

¶136 With all this in mind, I now turn to the question of how to
balance the four factors in this case, accounting for their
interrelated nature, the unique circumstances of this case, and the
ultimate primacy of prejudice. Again, by way of something of
recap, I view the factors as follows.

¶137 First, it’s true that the actual length that it took to prosecute
Hintze was two years. But courts commonly assess Barker’s length
factor and its prejudice factor together. See, e.g., Doggett, 505 U.S.
at 656 (explaining that the “importance” of the prejudice factor
“increases with the length of delay”); Ossana, 739 P.2d at 631
(“Barker requires an inquiry into whether [the] defendant was
prejudiced by the delay.”); Thompson-Jacobson, 2022 UT App 29,
¶ 11 (explaining that “the extent to which the delay stretches”
beyond the minimum to justify review is “relevant because the
presumption that pretrial delay has prejudiced the accused
intensifies over time” (quotation simplified)). Putting them
together here, I think that what really matters in this case is that
the effective length of the delay was six months. Again, Hintze
didn’t even know about this case for the first eighteen months
after the charge was filed, so there’s no possibility that he suffered
any anxiety or stress from the pending charge at that time. And
because of Hintze’s conviction in Case 3226, even Hintze agrees
that he would have been incarcerated through at least March 2020
for that unrelated reason anyway. Since he was convicted by plea
in September 2020, I believe that our resolution of this case must
turn on the six months between March and September 2020.

¶138 Second, I agree that the reason for the delay weighs against
the State. But no one has ever suggested that the State delayed
prosecuting Hintze deliberately or for any tactical reason. Instead,
by all accounts, it appears to have been an inadvertent mistake.
Such mistakes of course shouldn’t happen. And I agree that in a

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State v. Hintze

case in which a proper balancing of the other factors weighed
against the State, even a negligent delay could support a violation
(and, hence, a dismissal). But as discussed shortly, I don’t believe
this is so here.

¶139 Third, I agree that if a defendant makes a timely assertion
of his right to a speedy trial, the third factor should ordinarily
weigh in his favor. But again, the idea behind that factor seems to
be that once the defendant asserts his constitutional right to a
speedy trial, the State must do its part to see that the defendant
receives the speedy trial that he’s now requested. And that’s
exactly what happened here: after Hintze asserted the right to a
speedy trial in his August 2020 motion to dismiss, the State
promptly responded to the motion, the court ruled on the motion
in September 2020, and the case was then resolved by way of a
plea that very same month. In a circumstance like this one, where
the defendant’s assertion of the right was so quickly followed by
the State’s active participation in resolving the case, I have
difficulty seeing how this factor could compel us to conclude that
the Sixth Amendment was somehow violated. In these particular
circumstances, I believe that this factor is more appropriately
viewed as something of a wash.

¶140 Fourth, we’re left with prejudice. As discussed at length
above, I don’t believe that Hintze has established that he was
prejudiced by the delay in this case. His prejudice arguments are
inherently speculative, so I believe that they fail for this reason
alone. And on their merits, his arguments ask us to assume that
the Board would have placed little stock in the fact that, after
being convicted of two sex offenses involving teenage girls,
Hintze now stood convicted of unlawfully being in a public park
(while with yet another teenage girl, no less). This runs contrary
to how I think this would have likely played out.

¶141 So putting these all together, here’s how I see this case
balancing out: Hintze knew about this charge for six months

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before he pleaded guilty to it, the earlier delay wasn’t the product
of any deliberate action by the State, the case was resolved about
a month from the time that Hintze first asserted his right to a
speedy trial, and there’s no actual proof that the delay (whether it
be six months or two years) caused Hintze any actual prejudice.
Under this mix of circumstances, I don’t believe that the Sixth
Amendment was violated. I would therefore affirm the district
court’s denial of Hintze’s motion to dismiss, and I respectfully
dissent from the majority’s contrary conclusion.

II. Fourth Amendment Seizure

¶142 Hintze also challenges the district court’s denial of his
motion to suppress, and the issue has been fully briefed and
capably argued by both parties. Because I would reject Hintze’s
argument about the alleged speedy trial violation, I would
accordingly reach this issue. And in my view, we should reverse
the district court’s denial of Hintze’s motion to suppress. Cf. State
v. Larrabee, 2013 UT 70, ¶ 42 n.1, 321 P.3d 1136 (Lee, J., dissenting)
(explaining that a “core role of a dissenting opinion is to outline
the grounds on which it would dispose of the case—whether or
not those grounds are identical to those addressed by the
majority” and then setting forth an “alternative argument for
reversal” that was advanced by the defendant but not reached by
the majority).

¶143 The Fourth Amendment protects “against unreasonable
searches and seizures.” U.S. Const. amend. IV. To determine
whether there was an unreasonable search or seizure, courts must
first determine the nature of the police-citizen encounter at issue.
There are three types:

A level one encounter occurs when a police officer
approaches a citizen and asks questions, but the
person is not detained against his will and remains
free to leave. A level two encounter occurs when a

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police officer temporarily seizes an individual
because the officer has a reasonable, articulable
suspicion that the person has committed or is about
to commit a crime. Finally, a level three stop occurs
when a police officer has probable cause to believe
that a crime has been committed and effects an
arrest of the suspect.

State v. Mitchell, 2019 UT App 190, ¶ 12, 455 P.3d 103 (quotation
simplified).

¶144 As noted, Hintze’s motion was targeted at the moment
when the first officer asked him for his name. This was the
moment of demarcation because, again, once officers learned
Hintze’s name, they had a basis for discovering that Hintze was a
sex offender and not legally permitted to be at the park. Given
this, the question is what kind of encounter was underway when
the officers asked Hintze for his name: was it a consensual level
one encounter (which is the State’s view)? Or, instead, was it a
level two encounter that already amounted to a seizure (which is
Hintze’s view)? If it was a level two encounter at that point, we
must then determine whether that seizure was justified by
reasonable suspicion.

¶145 As set forth in Part II.A, I believe that Hintze had already
been seized when the officer asked him for his name. As set forth
in Part II.B, I believe that this seizure was not supported by
reasonable suspicion.

A. Seizure

¶146 A Fourth Amendment seizure occurs when an officer “by
means of physical force or show of authority, terminates or
restrains” a person’s “freedom of movement.” State v. Anderson,
2015 UT 90, ¶ 10, 362 P.3d 1232 (quotation simplified). “A show
of authority is sufficient to constitute a seizure if in view of all of
the circumstances surrounding the incident, a reasonable person

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would have believed that he was not free to leave.” Id. (quotation
simplified). “Thus it is a hypothetical reasonable person’s
interpretation of an officer’s actions—not the officer’s intent—that
determines whether an individual has been seized by an officer
through a show of authority.” Id. Although this is a circumstance-
dependent inquiry, it is still “helpful” to examine past cases in
which courts addressed these issues and then “compar[e]” those
cases “to our facts.” State v. Bean, 869 P.2d 984, 986 (Utah Ct. App.
1994).

¶147 In my view, there are several circumstances that are of
particular importance to our resolution of this case.

¶148 First, the presence of multiple armed and uniformed
police officers. When determining whether “a reasonable person
would have believed that he was not free to leave,” courts
commonly look to whether there was a “threatening presence of
several officers.” United States v. Mendenhall, 446 U.S. 544, 554
(1980). In assessing this, courts look to such things as the number
of officers, the officer-to-citizen-ratio, whether the officers were
uniformed, and whether the officers were armed.

¶149 In a recent case, for example, we concluded that “the
presence of four armed and uniformed officers constituted a show
of authority,” particularly because the officers “outnumber[ed]
[the suspects] two-to-one.” State v. Bui-Cornethan, 2021 UT App
56, ¶ 22, 490 P.3d 191. In another case, we held that a suspect was
seized in part because he “was confronted with two uniformed
officers,” each of whom was equipped “with badge, gun, the
whole works.” Salt Lake City v. Ray, 2000 UT App 55, ¶ 13, 998 P.2d
274 (quotation simplified). By contrast, we reached a different
conclusion when “only two officers” questioned “five males.”
State v. Merworth, 2006 UT App 489, ¶ 9, 153 P.3d 775. And we also
held that there was no seizure in a case where “only one officer”
questioned a single suspect, and, although the officer was armed,
he “used no show of force such as drawing his weapon or flashing

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his police lights.” State v. Adams, 2007 UT App 117, ¶ 14, 158 P.3d
1134.

¶150 In this case, three officers approached two citizens, so the
officers outnumbered the citizens. Moreover, all three officers
were uniformed, and as the district court put it, “[t]hey certainly
had weapons[, although] none of them [were] drawn.” Although
not dispositive, these circumstances support a conclusion that this
encounter constituted a seizure.

¶151 Second, the positioning of the officers’ bikes. An
“officer’s positioning of her vehicle is certainly a factor that” can
weigh “in favor of finding under a totality of the circumstances
that [a] defendant was seized.” State v. Struhs, 940 P.2d 1225, 1228
(Utah Ct. App. 1997). Such positioning is particularly relevant if
the officer uses his vehicle to block a citizen’s path, because this
would naturally be seen as infringing on the citizen’s “freedom of
movement.” Id.; see also State v. Smith, 2022 UT 13, ¶¶ 3, 26, 513
P.3d 629 (concluding that officers seized a suspect when they
“parked in a manner intended to prevent [the suspect’s] vehicle
from exiting and to allow the officers to shine a spotlight directly
into the vehicle” (quotation simplified)); State v. Smith, 781 P.2d
879, 882 (Utah Ct. App. 1989) (concluding that the defendant’s
“liberty was restrained and a seizure occurred,” in part, because
the officer “blocked [the] defendant’s car” with his own).

¶152 By contrast, we’ve held that the positioning of an officer’s
vehicle did not suggest that there was a seizure when the officer
“parked in front of [a suspect’s] vehicle at a forty-five degree
angle,” “did not block the vehicle in,” and left room so that it was
“possible for [the suspect] to drive away.” State v. Merlen, 2002 UT
App 181U, para. 2. Other courts have similarly concluded that
there wasn’t a seizure in situations in which officers did not
effectively block the citizen in. See, e.g., United States v. Tafuna, 5
F.4th 1197, 1201 (10th Cir. 2021) (considering it important that
although the officer’s “police vehicle was parked at an angle so

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that it faced the driver’s side of the car, it did not obstruct the car’s
path of exit or otherwise impede Defendant’s movement”); cf.
State v. Rigby, 2016 UT App 42, ¶ 21, 369 P.3d 127 (acknowledging
“Utah’s historical pattern of tracking federal law in [the Fourth
Amendment] area both in principle and in practice”).

¶153 Here, the officers were on bikes, not in cars. But the same
analysis would apply, particularly where, as here, the citizens
were on foot as opposed to being in cars of their own. See, e.g.,
People v. Taylor, 2018 CO 35, ¶ 12, 415 P.3d 821 (explaining that an
officer on bike patrol who stopped his bike and left “room on that
portion of the sidewalk for [the suspect] to keep walking” did not
seize the suspect). So, as with a car case, the question is whether
the officers’ vehicles (i.e., their bikes) were positioned such that
they would restrain Hintze’s freedom of movement.

¶154 They were. The bodycam footage from the lead officer was
introduced below and is in the record. This video shows that the
three officers pedaled up to the bench where Hintze and the
teenager were sitting. The bench was on a concrete patch that was
alongside a paved path, there was a fence behind the bench (at
something of an angle), and there was a busy road behind the
path. To either side of the bench was overgrown grass. The officer
who questioned Hintze was at the right of this group of officers,
and he stopped on the path just a few feet in front of Hintze. This
officer got off his bike and parked his bike to his right, near the
end of the bench on the side where Hintze was sitting. This officer
and his bike would have been in the way if Hintze had tried
walking away on the path in that direction. A second officer was
positioned in the middle of the trio. He parked his bike
immediately in front of Hintze, positioning his bike mere inches
from Hintze’s knee. That second officer and a third officer who
was behind him were positioned on the portion of pavement to
the left of Hintze and the path in that direction, thereby blocking
Hintze in that direction as well. Thus, from the very outset of this
encounter, Hintze was effectively surrounded, and a reasonable

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person would have believed that he did not have “freedom of
movement.” Struhs, 940 P.2d at 1227.

¶155 The State nevertheless contends that a person in this
position would have felt free to leave anyway. The State bases this
assertion on I.N.S. v. Delgado, 466 U.S. 210 (1984), and United States
v. Drayton, 536 U.S. 194 (2002). Relying on those cases, the State
argues that government agents can “directly question[]
individuals about potential criminal or quasi-criminal” activities
“while other government agents [stand] by the exits” without
effectuating a seizure. Unlike the State, however, I believe Delgado
and Drayton are distinguishable in two key ways.

¶156 First, Delgado and Drayton both involved police-citizen
encounters in spaces in which the individuals had already
submitted themselves to some degree of confinement before
encountering the officers. In Delgado, for instance, government
agents interviewed factory workers inside several factories. 466
U.S. at 212. When assessing whether agents had done anything to
restrict the workers’ freedom of movement, the Supreme Court
thought it significant that “when people are at work[,] their
freedom to move about has been meaningfully restricted, not by
the actions of law enforcement officials, but by the workers’
voluntary obligations to their employers.” Id. at 218. The Court
accordingly concluded that the agents’ questioning did not
“prevent” the workers “from moving about the factories” because
it did not limit the workers’ freedom of movement more than their
own employment already had. Id.

¶157 Drayton involved a different setting but a similar dynamic.
There, police officers approached and questioned individuals on
board a bus. 536 U.S. at 197–98. Reviewing a Fourth Amendment
challenge to the questioning, the Court thought it significant that
the passengers had already restricted their own movement by
choosing to enter and then stay on the bus. Id. at 201–02. Relying
on Florida v. Bostick, 501 U.S. 429 (1991), the Court reinforced the

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notion that “the traditional rule, which states that a seizure does
not occur so long as a reasonable person would feel free to
disregard the police and go about his business,” is “not an
accurate measure of the coercive effect of a bus encounter”
because a “bus rider’s movements are” already “confined” by the
rider’s decision to get on the bus. Drayton, 536 U.S. at 201
(quotation simplified); see also Bostick, 501 U.S. at 435–36
(explaining that “the degree to which a reasonable person would
feel that he or she could leave is not an accurate measure of the
coercive effect of the encounter” when “the person is seated on a
bus and has no desire to leave”). Thus, although individuals’
“movements [are] ‘confined’ in a sense” while they sit on a bus,
this restriction is “the natural result of [the bus rider’s] decision to
take the bus,” which is a “factor independent of police conduct.”
Bostick, 501 U.S. at 436.

¶158 Unlike Delgado’s workers or Drayton’s passengers, Hintze
did not encounter officers in a place in which he had already
voluntarily restricted his own movement. Rather, at the time of
this encounter, he was sitting on a park bench on an open and
public path. Until officers arrived and positioned themselves
between Hintze and the path, Hintze would have been entirely
free to get up and leave. These cases are therefore distinguishable
on that basis alone.

¶159 Second, in Delgado, “INS placed agents near the exits of the
factory sites” and “near the factory doors.” 466 U.S. at 218
(emphases added). The Supreme Court took note of this precise
positioning, explaining that the “presence of agents by the exits
posed no reasonable threat of detention to these workers while
they walked throughout the factories on job assignments.” Id. at
219 (emphasis added). The positioning in Drayton was similar.
There, one officer was near the front of the bus; but even so, the
Court thought his presence there was non-coercive because, by
kneeling on the driver’s seat and facing the rear of the bus, he was
not “blocking the aisle or otherwise obstructing the bus exit.” 536

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U.S. at 198. The same was true for his partner, who approached
passengers while standing “next to or just behind each passenger
with whom he spoke” to “avoid blocking the aisle.” Id. (emphasis
added).

¶160 This stands in contrast to what happened here. Again, the
three officers positioned themselves and their bikes in between
Hintze and the path by which he would conceivably leave. If he
tried walking away from the encounter, Hintze would have had
to brush by these uniformed officers or their bikes. I’m hard
pressed to imagine that an ordinary citizen would feel
comfortable doing so in an attempt to terminate an encounter,
particularly while the officers were in the act of asking him
questions, and I’m likewise hard pressed to imagine that police
officers would ever regard this as acceptable behavior. This is
therefore strongly suggestive that a seizure occurred.

¶161 Third, the nature of the questioning. An officer can
“approach[] a citizen and ask[] questions” without moving
beyond a level one encounter. Mitchell, 2019 UT App 190, ¶ 12. In
this sense, officers do not seize a person by “merely approaching
an individual on the street or in another public place, by asking
him if he is willing to answer some questions,” or “by putting
questions to him if the person is willing to listen.” Bostick, 501 U.S.
at 434 (quotation simplified).

¶162 But even so, the “manner of questioning, the content of the
questions, and the context in which the questions are being asked
can convert mere questioning into a level two seizure if, under all
of the circumstances, a reasonable person would not feel free to
leave.” State v. Alverez, 2006 UT 61, ¶ 12, 147 P.3d 425 (quotation
simplified). With respect to the manner of questioning, “the use
of language or tone of voice indicating that compliance with the
officer’s request might be compelled” can suggest that the
conversation is coercive. Mendenhall, 446 U.S. at 554. And with
respect to the content of the questions, questions that are

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“accusatory in nature” are suggestive that a detention is
underway. Alverez, 2006 UT 61, ¶ 12.

¶163 Here, the district court found that the officers’ “tone of
voice was normal,” and Hintze hasn’t challenged that finding on
appeal. But even so, I regard the content of the questioning as
having been at least somewhat accusatory in nature from
essentially the start of the encounter. The officers did not
approach Hintze and begin by casually “asking him if he [was]
willing to answer some questions” or anything similar. Bostick,
501 U.S. at 434 (quotation simplified). Rather, as the officers
approached, the first officer asked, “[H]ow’s it going guys? How
old are you guys?” As noted by the district court, this question
about Hintze’s and the teenager’s ages came “very quick[].” After
Hintze and the teenager responded, the first officer then asked
Hintze about his relationship to the teenager. When Hintze said
that they were siblings, the officer told Hintze that he thought
Hintze didn’t “look like” the teenager’s sibling. The officer then
immediately asked Hintze several follow-up questions about the
nature of his relationship to the teenager, and Hintze’s shifting
answers were in response to those questions.

¶164 As discussed below, it’s true that a person’s shifting story
can contribute to a determination that reasonable suspicion
existed. But the initial issue here is whether Hintze had already
been seized. And on that front, it matters that these officers didn’t
casually approach Hintze and ask him if he was willing to answer
questions; rather, when they approached Hintze, the lead officer
started by asking questions about his age and relationship to the
teenager (questions that by their nature already suggested some
degree of suspicion by the officer), and when Hintze answered the
first question about his relationship to the teenager, the officer
responded by openly questioning the truthfulness of Hintze’s
answer. At that moment, the questioning had become accusatory.
Because Hintze was now being asked accusatory questions, this,
too, suggested that he was no longer “free to disregard the

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questions, get [off the bench], and [walk] away.” Alverez, 2006 UT
61, ¶ 12.

*****

¶165 This all leads back to the questions of whether a seizure
occurred, and, if so, when. And again, when assessing this, we
must consider the totality of the circumstances. So to recap, two
citizens were approached by three uniformed officers, the officers
were armed, and the officers almost immediately positioned
themselves and their bikes between Hintze and the path that he
would take if he tried to leave. After the lead officer asked about
Hintze’s relationship to the teenager, the officer asked follow-up
questions that suggested that he thought Hintze was not telling
him the truth. All of this occurred before the officer asked Hintze
for his name, which is the question that led to the incriminating
information about Hintze’s sex offender status (and park
visitation restrictions) and which is accordingly the information
at issue in Hintze’s motion to suppress.

¶166 Under these circumstances, I don’t believe that an ordinary
person in Hintze’s position would have felt free to stand up, brush
by the officers, ignore the pending accusatory questions, and
terminate the encounter. Because of this, I agree with Hintze that
he had been seized by the time he gave his name to the officers.

B. Reasonable Suspicion

¶167 “Having determined that a level two Fourth Amendment
seizure did occur in this case,” I would then “turn to whether the
officers had a reasonable and articulable suspicion of criminal
activity in order to justify [the] detention.” Alverez, 2006 UT 61,
¶ 13. “Reasonable suspicion requires an objectively reasonable
belief that an individual is engaged in or is about to be engaged
in criminal activity.” State v. Gurule, 2013 UT 58, ¶ 32, 321 P.3d
1039 (quotation simplified). While “officers need not rule out the

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possibility of innocent conduct, and the likelihood of criminal
activity need not rise to the level required for probable cause,
reasonable suspicion must be supported by specific and
articulable facts and rational inferences,” and it “cannot be merely
an inchoate and unparticularized suspicion or hunch.” Id.
(quotation simplified). When conducting this analysis, we “look
to the totality of the circumstances to determine whether, taken
together, the facts warranted further investigation by the police
officer[s].” Alverez, 2006 UT 61, ¶ 14 (quotation simplified).

¶168 “Here, the parties do not contest the objective facts
apparent to” the officers “or the order in which they occurred.”
State v. Simons, 2013 UT 3, ¶ 23, 296 P.3d 721. I think the potentially
relevant circumstances here are these:

• Officers saw Hintze and a teenage girl sitting on a park
bench together.

• Hintze and the teenager had different complexions. 12

• Officers approached the two, asked them their ages, and
asked them about their relationship.

• In response to the question about their ages, officers
learned that Hintze was twenty-three and the teenager was
thirteen.

• After Hintze gave an initial response to the question about
their relationship, the questioning officer suggested that he
thought Hintze was not telling the truth.

12. The officer seemed to think that the difference in complexions
mattered because it might suggest that the two were not
biologically related.

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• In response to further questioning, Hintze gave shifting
answers about his relationship to the teenager.

• Moments later, the officer asked Hintze for his name.

The question, then, is whether the circumstances prior to Hintze
being seized supported a reasonable suspicion that criminal
activity was underway, thereby justifying the investigatory
detention.

¶169 It’s true that Hintze and the teenager were of different ages
and complexions and were sitting together on a park bench. But
to support a seizure—i.e., to give officers the authority to restrain
their movement—there must have been a reasonable suspicion
that “criminal activity [was] afoot.” Terry v. Ohio, 392 U.S. 1, 30
(1968). Here, when officers saw the pair, they weren’t holding
hands or kissing; in fact, they weren’t even touching each other.
They also weren’t hiding or sitting in a secluded place. Rather,
they were eating snacks on a public park bench in the middle of
the day. Moreover, they didn’t “attempt to leave the area when
the police approached.” State v. Goddard, 2021 UT App 124, ¶ 27,
501 P.3d 1188; cf. Illinois v. Wardlow, 528 U.S. 119, 124 (2000)
(explaining that an individual’s “unprovoked flight” or “evasive
behavior” can be “pertinent” “in determining reasonable
suspicion”). Instead, as officers approached, the two remained
seated on the bench, apparently unconcerned. So without
something more, I don’t believe that there would be a reasonable
basis at that point for suspecting that something criminal was
afoot.

¶170 The “something more” that the State points to is the fact
that Hintze then gave shifting answers to the lead officer’s
questions about the nature of his relationship with the teenager.
And I do recognize that a person’s shifting answers to questions
from an officer can contribute to reasonable suspicion. See State v.
Duhaime, 2011 UT App 209, ¶ 15, 258 P.3d 649 (recognizing that

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“vague, inconsistent or evasive answers” can support reasonable
suspicion (quotation simplified)); State v. Little, 2012 UT App 168,
¶ 5, 280 P.3d 1072 (noting that “the officers developed additional
reasonable suspicion upon hearing the inconsistent stories told
by” the defendant and his mother).

¶171 But even so, I believe that Hintze had already been seized
before he started giving those shifting answers. Again, three
uniformed officers approached Hintze and positioned themselves
and their bikes around him, positioning themselves directly
between him and the path by which he would conceivably leave.
This was likely enough by itself to constitute a seizure. But even
if it wasn’t, I believe that Hintze was seized when the first officer
started the conversation by almost immediately asking accusatory
questions and then questioning Hintze’s initial answers.

¶172 Thus, even before Hintze’s story had started to
meaningfully shift, the officers had already blocked his
movement and communicated to him that he was suspected of
wrongdoing. At that moment, a reasonable person would not
have felt free to leave. But at that moment, there also wasn’t yet a
reasonable basis for suspecting that Hintze was engaged in or
about to engage in criminal conduct. Because of this, I believe that
the district court erred in denying Hintze’s motion to suppress.

¶173 In short, I disagree with the majority’s conclusion that
Hintze’s right to a speedy trial was violated. But even so, I agree
with Hintze that officers unlawfully seized him without
reasonable suspicion. I would therefore remand the case for
further proceedings consistent with that result.

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