State v. Hintze

2025 UT App 82

THE UTAH COURT OF APPEALS

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

Opinion
No. 20200787-CA
Filed May 30, 2025

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

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

JUDGE RYAN D. TENNEY authored this Opinion, in which
JUDGES RYAN M. HARRIS and DAVID N. MORTENSEN concurred.

TENNEY, Judge:

¶1 This case is before this court for a second time. In the first
appeal, Chad Hintze challenged the district court’s decisions to
deny (1) a motion to dismiss on speedy trial grounds and (2) a
motion to suppress statements Hintze had made during an
encounter with law enforcement. In this court’s first opinion, the
majority concluded that “the State’s delay in prosecuting him had
violated his Sixth Amendment right to a speedy trial.” State v.
Hintze (Hintze I), 2022 UT App 117, ¶ 2, 520 P.3d 1. The Utah
Supreme Court granted review and then reversed that decision.
State v. Hintze (Hintze II), 2025 UT 3, ¶¶ 39–98, 567 P.3d 506. At the
close of its opinion, the supreme court “remand[ed] to the court
of appeals for further proceedings on Hintze’s motion to
suppress.” Id. ¶ 98.
State v. Hintze

¶2 We note that the suppression issue was fully briefed and
capably argued in the original appeal. We further note that, after
the case returned to this court on remand, the parties were given
the opportunity to point this court to any additional authority
relating to the suppression issue that had been issued since Hintze
I. Neither party alerted this court to any such authority. As set
forth below, we now conclude that the district court erred by
denying Hintze’s motion to suppress, and we therefore reverse
that decision and remand the case for further proceedings.

BACKGROUND 1

¶3 In 2011, Hintze was convicted of attempted unlawful
sexual activity with a minor. See Utah Code § 76-4-101 (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) (2011). 2
Subject to a few exceptions not at issue in this case, it is
accordingly a crime for Hintze to “be in any protected area.” Id.
§ 77-27-21.7(2) (2016). 3 By statute, “a community park that is open

1. This Background is largely drawn from the majority opinion’s
Background from Hintze I, 2022 UT App 117, 520 P.3d 1.

2. Because of later changes to the statute that required Hintze to
register as a sex offender, we cite the version 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(19).

3. We cite the version of the statute that was in effect in 2016 when
Hintze violated his sex offender registry conditions. Since 2020,
the legislature has made minor changes to the numbering and
wording of the statute. The statute was then renumbered in 2025
as Utah Code section 53-29-306.

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State v. Hintze

to the public” qualifies as a protected area. Id. § 77-27-21.7(1)(a)(iv)
(2016).

The June 2016 Park Incident

¶4 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
them. The officers stopped right in front of Hintze and the
teenager and, as discussed in more detail below, parked their
bikes in front of and to the side of the bench where Hintze and the
teenager were sitting.

¶5 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. 4 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

4 . 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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a minute into the encounter), the officer asked Hintze for his name
and birthdate, which Hintze provided.

¶6 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
else going on” 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 teenager. As the encounter continued, another officer
radioed in to dispatch “to check the identity” and run a warrants
check on Hintze using the name and birthdate provided by
Hintze. From this, the officer learned that Hintze was a registered
sex offender.

¶7 The teenager’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.

Hintze’s Motion to Suppress

¶8 In March 2018, the State charged Hintze with one count of
“violation by sex offender of protected area,” a class A
misdemeanor. See Utah Code § 77-27-21.7(2) (2016).

¶9 Hintze later filed a motion to suppress, arguing that he had
been seized in violation of the Fourth Amendment “before he
gave his name” to the officers. Hintze made two principal
arguments in this motion. First, he argued that he had been seized
at that point because officers had “pulled up in front of the park

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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,” “he would have
run into one of the three officers.” Second, Hintze argued that
there was not reasonable suspicion at that point to support a
seizure 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” 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.”

¶10 In light of these arguments, Hintze asked the court to
suppress the “incriminating evidence” the officers had obtained
as well as any “fruit of the poisonous tree.” In passing, Hintze
suggested that one of the “fruits” of the unconstitutional seizure
was the discovery that Hintze “was a registered sex offender.”

¶11 The State opposed the motion and, after a hearing, the
court denied it. Although the court found that the “officers did
ask the individuals their age very quickly,” it concluded that the
encounter was “a casual encounter up to the point that the name
[was] requested.” The court further concluded that the encounter
was “still a level 1 stop” at the moment the officer asked Hintze
for his name, given that the officer had “turn[ed] away from
[Hintze], turn[ed] his back to him and [began] dealing with
dispatch.” This, combined with the “very 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.” The court further observed that, even

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if the encounter could be regarded as “a level 2 stop” at the
moment that the officer asked Hintze for his name, it was
permitted because the officers had “reasonable articulable
suspicion to investigate the relationship between [Hintze] and the
young girl.” This was so, according to the court, because Hintze
had “told the officer three different things regarding their
relationship,” the apparent age gap between Hintze and the girl,
and the testimony showing that officers had “viewed two
individuals sitting on a park bench who appeared to be of
disparate ages and didn’t appear to be related.” As a result of its
conclusion that Hintze was not unconstitutionally seized, the
court did not address Hintze’s arguments about the “fruits” of
any unconstitutional seizure.

Hintze’s Conditional Guilty Plea and Sentence

¶12 On September 21, 2020, Hintze entered a conditional guilty
plea to the charged offense, reserving the right to appeal the
denial of his motion to suppress and the denial of his motion to
dismiss the charges based on a speedy trial violation.

¶13 As indicated above, this court initially reversed the denial
of Hintze’s motion to dismiss, but the supreme court has now
reversed that decision. We accordingly now address Hintze’s
challenge to the denial of his motion to suppress.

ISSUE AND STANDARD OF REVIEW

¶14 “We review a trial court’s decision to grant or deny a
motion to suppress for an alleged Fourth Amendment violation
as a mixed question of law and fact.” State v. Fuller, 2014 UT 29,
¶ 17, 332 P.3d 937. “While the court’s factual findings are
reviewed for clear error, its legal conclusions are reviewed for
correctness, including its application of law to the facts of the
case.” Id. The question of whether a particular encounter was
consensual or instead constituted a seizure presents a legal

20200787-CA 6 2025 UT App 82
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question. See State v. Perkins, 2009 UT App 390, ¶ 26, 222 P.3d 1198;
Salt Lake City v. Ray, 2000 UT App 55, ¶ 8, 998 P.2d 274.

ANALYSIS

¶15 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
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).

¶16 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. The district court ruled
below, and the State contends on appeal, that it was a consensual
level one encounter. Hintze, however, argues that it was a level
two encounter that already amounted to a seizure. And if it was a

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level two encounter by that point, we must then determine
whether that seizure was justified by reasonable suspicion.

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

A. Seizure

¶18 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
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).

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

¶20 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

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of officers, the officer-to-citizen ratio, whether the officers were
uniformed, and whether the officers were armed.

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

¶22 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.” While not
dispositive, these circumstances support the conclusion that this
encounter constituted a seizure.

¶23 Second, the positioning of the officers’ bikes. An
“officer’s positioning of [his or] 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 or her vehicle to block
a citizen’s path, because this would naturally be seen as infringing
on the citizen’s “freedom of movement.” Id. at 1227; see also State
v. Smith, 2022 UT 13, ¶¶ 3, 26, 513 P.3d 629 (concluding that

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officers seized a defendant when they “parked in a manner
intended to prevent [the defendant’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).

¶24 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 defendant’s] vehicle at a forty-five degree
angle,” “did not block the vehicle in,” and left room so that it was
“possible for [the defendant] 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
that it faced the driver’s side of the car, it did not obstruct the car’s
path of exit or otherwise impede” the driver’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”).

¶25 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 (or bikes) 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 defendant] to keep
walking” did not seize the defendant). 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.

20200787-CA 10 2025 UT App 82
State v. Hintze

¶26 They were. The body camera 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 intersecting 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
person would have believed that he did not have “freedom of
movement.” Struhs, 940 P.2d at 1227.

¶27 The State nevertheless contends that a person in this
position would have felt free to leave anyway. The State bases this
assertion on Immigration and Naturalization Service 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, we conclude that Delgado and Drayton are
distinguishable from this case in two key ways.

¶28 First, Delgado and Drayton both involved police-citizen
encounters in spaces where the individuals had already

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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.

¶29 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
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.

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¶30 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.

¶31 Second, in Delgado, the government “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.” Drayton, 536 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).

¶32 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. We’re hard
pressed to imagine that a reasonable person 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 we’re likewise hard pressed to imagine that police
officers would ever regard this as acceptable behavior. This is
therefore strongly suggestive that a seizure occurred.

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¶33 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
(quotation simplified). 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).

¶34 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
“accusatory in nature” are suggestive that a detention is
underway. Alverez, 2006 UT 61, ¶ 12.

¶35 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, we 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 the ages of Hintze and the teenager came “very quickly.”
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

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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.

¶36 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
questions, get [off the bench], and [walk] away.” Alverez, 2006 UT
61, ¶ 12.

*****

¶37 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

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visitation restrictions), and which is accordingly the information
at issue in Hintze’s motion to suppress.

¶38 Under these circumstances, we don’t believe that a
reasonable 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, we agree
with Hintze that he had been seized at the moment that he gave
his name to the officers.

B. Reasonable Suspicion

¶39 “Having determined that a level two Fourth Amendment
seizure did occur in this case,” we now “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
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).

¶40 “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. We believe that the
potentially relevant circumstances here are these:

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State v. Hintze

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

• Hintze and the teenager had different complexions. 5

• 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.

• 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.

¶41 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.

5. 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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State v. Hintze

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, we don’t believe that there would be a
reasonable basis at that point for suspecting that something
criminal was afoot.

¶42 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. We
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 “vague,
inconsistent or evasive answers” can support reasonable
suspicion (quotation simplified)); see also 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).

¶43 But even so, we conclude 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, and they placed
themselves directly between Hintze 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, we conclude that Hintze
was seized when the first officer started the conversation by
almost immediately asking accusatory questions and then
questioning Hintze’s initial answers.

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State v. Hintze

¶44 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.

¶45 We therefore conclude that at the moment the officers
asked Hintze for his name, Hintze had been seized in violation of
the Fourth Amendment. Because of this, we conclude that the
district court erred in denying Hintze’s motion to suppress the
statements that Hintze made to officers in response to those
questions. 6

6. In his motion to suppress, Hintze asked the court to suppress
the “incriminating information” that officers obtained from the
unconstitutional seizure, and as discussed, the focus of the
briefing (both below and on appeal) has been on Hintze’s
response to the question about his name. This is why we’ve
concluded that that response should have been suppressed.
We note, however, that Hintze also asked the court to
suppress any “fruit of the poisonous tree”—i.e., evidence that
officers learned about as a result of that unconstitutional seizure.
And in passing, Hintze suggested that this included the fact that
Hintze “was a registered sex offender.” But because the district
court concluded that Hintze was not unconstitutionally seized, it
never ruled on whether any other evidence was
unconstitutionally obtained as a result of that seizure (and, if so,
what it was), nor did the court rule on whether officers would
have obtained any such evidence through some other means. The
parties also have not given this issue any attention in the appellate
briefing. As a result, we have no occasion to weigh in on those
issues in the first instance. On remand, the district court should
(continued…)

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State v. Hintze

CONCLUSION

¶46 For the foregoing reasons, we reverse the denial of Hintze’s
motion to suppress, and we remand the case for further
proceedings consistent with this opinion.

determine what, if any, additional evidence should be suppressed
as a result of the seizure that had occurred at the moment that the
officer asked for Hintze’s name.

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