State v. Worwood

2007 UT 47
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20060048
Plaintiff and Respondent,
v.
F I L E D
Mitchell Worwood,
Defendant and Petitioner. 	June 22, 2007
---
Fourth District, Nephi Dep’t
The Honorable Donald J. Eyre
No. 031600152
Attorneys: 	Mark L. Shurtleff, Att’y Gen., J. Frederic Voros,
Jr., Asst. Att’y Gen., Salt Lake City, Jared W.
Eldridge, Nephi, for plaintiff
Scott P. Card, Jennifer K. Gowans, Provo, for
defendant
---
On Certiorari to the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	In this case, we consider the constitutional scope of
an investigative detention conducted under reasonable suspicion.
The detention at issue occurred when an off-duty highway
patrolman, Korey Wright, stopped Marshall Worwood on suspicion
that he was driving under the influence of alcohol. 	Wright did
not conduct field sobriety tests at the site of the initial
encounter. 	Instead, Wright detained Worwood in Wright’s truck
and transported him down a canyon to Wright’s home, where an on-
duty officer conducted field sobriety tests. 	The district court
denied Worwood’s motion to suppress, and the court of appeals
affirmed. 	We reverse the court of appeals, finding that Wright
exceeded the scope of what was reasonably necessary to further
his investigation.

No. 20060048 	2
FACTUAL AND PROCEDURAL BACKGROUND
¶2 	On June 20, 2003, Korey Wright, an off-duty Highway
Patrol trooper, was driving with passenger Skylar Fautin down
Deep Canyon in Juab County after a day of horseback riding.
Wright saw defendant Mitchell Worwood standing by a truck that
was partially blocking the road. 	Wright noticed “a big wet spot
on the road” and a beer can behind the truck. 	Worwood got into
the truck and pulled it off the road, presumably so that Wright
could pass him.
¶3 	Suspecting that Worwood had been drinking, Wright
pulled up next to Worwood’s truck. 	Wright did not identify
himself as a police officer but stated that, given their small
community, Worwood “knew who [he] was.” 	From the driver’s seat
of Wright’s truck, he asked Worwood if everything was all right.
Worwood responded that he had pulled over to urinate. 	Wright
observed that Worwood’s speech was slow and slurred and that his
eyes were bloodshot. 	Wright then exited his vehicle, approached
Worwood, and while standing by Worwood’s truck door, noticed the
smell of alcohol. 	At some point during the encounter, Wright
also observed a cooler that had been recently emptied.
¶4 	From these facts, Wright determined that Worwood had
“some alcohol in him,” so he stepped out of his truck, walked
over to Worwood, and stated, “[W]e’d better have a trooper look
at you before you drive anymore.”
¶5 	Wright asked Worwood to step out of his own truck and
get into Wright’s truck. 	Without a means of contacting an on-
duty officer in the canyon, Wright instructed Fautin to drive
Worwood’s truck down the canyon, call the police from the dairy
at the bottom of the canyon, and reconvene at Wright’s house.
Wright, in turn, drove Worwood a mile and a half down the canyon
to Wright’s own home, where they were met by on-duty Officer
Kevin Wright.
¶6 	Officer Kevin Wright performed four field sobriety
tests on Worwood at Korey Wright’s residence. 	Two tests, the
horizontal gaze and nystagmus tests, determined possible
intoxication from eye movement. 	The third required Worwood to
walk nine steps, heel to toe, and turn. 	The fourth test required
Worwood to stand on one leg for thirty seconds. 	When Worwood
failed these tests, Officer Kevin Wright arrested him.

1 Utah Code Ann. § 41-6a-503(2) (2005).
2 See State v. Worwood, 2005 UT App 539, ¶ 4, 127 P.3d 1265.
3 Id. ¶ 9.
4 Id. ¶ 13 (Thorne, J., dissenting).
5 Id. ¶ 16 (Thorne, J., dissenting).
3 	No. 20060048
¶7 	Worwood pled not guilty to the charge of driving under
the influence with two prior convictions, a third degree felony. 1
He then filed a motion to suppress on the basis of alleged
violations of the Fourth Amendment and article I, section 14 of
the Utah Constitution. 	In view of the court of appeals’ holding
and the arguments of both parties, we limit our suppression
analysis to the field sobriety tests. 2
¶8 	The district court denied the suppression motion. 	It
found that the initial conversation between Wright and Worwood
was consensual and did not amount to a detainment and that
Wright’s subsequent detention of Worwood fell within the bounds
of a constitutional investigative detention.
¶9 	After this ruling, Worwood entered a conditional guilty
plea and appealed to the court of appeals. 	In a narrow holding,
the appeals court affirmed, stating, “[W]e cannot conclude that
an off-duty law enforcement officer exceeds the permissible scope
of an investigatory detention when he transports a driver he
suspects to be intoxicated a short distance from an uninhabited
area to meet an on-duty officer for further investigation.” 3
Judge Thorne dissented, claiming that Wright’s actions amounted
to a de facto arrest. 4 	Alternatively, Judge Thorne argued that
under an investigative detention analysis, the duration and scope
of the stop were unreasonable. 5
¶10 	We granted Worwood’s petition for a writ of certiorari
to determine “[w]hether delay in the performance of a field
sobriety test and transportation of a suspect” are
constitutional.
STANDARD OF REVIEW
¶11 	This court reviews the court of appeals’ decision for
correctness, with particular attention to whether the court of
appeals reviewed the trial court’s decision under the correct

6 State v. King, 2006 UT 3, ¶ 12, 131 P.3d 202; State v.
Rynhart, 2005 UT 84, ¶ 9, 125 P.3d 938.
7 State v. Levin, 2006 UT 50, ¶ 23, 144 P.3d 1096; State v.
Brake, 2004 UT 95, ¶ 15, 103 P.3d 699.
8 Levin, 2006 UT 50, ¶ 20; State v. Hansen, 837 P.2d 987,
988 (Utah Ct. App. 1992).
9 Worwood, 2005 UT App 539, ¶ 3 n.1; State v. Arguelles,
2003 UT 1, ¶¶ 67-68, 63 P.3d 731.
10 See, e.g., Brake, 2004 UT 95, ¶¶ 2, 35 & n.3; State v.
Warren, 2003 UT 36, ¶ 2, 78 P.3d 590.
No. 20060048 	4
standard. 6 	In cases involving Fourth Amendment questions under
the United States Constitution, we review mixed questions of law
and fact under a correctness standard in the interest of creating
uniform legal rules for law enforcement. 7
¶12 	Factual findings underlying a motion to suppress are
evaluated for clear error. 8 	As the court of appeals correctly
stated, parties challenging the facts under a clear error
standard have a judicially imposed obligation to marshal the
evidence in support of the challenged finding. 9 	In his briefs to
us and to the court of appeals, Worwood seems to dispute the
district court’s finding that Wright smelled alcohol on Worwood
prior to detaining him in Wright’s truck, but Worwood failed to
actually challenge this finding by marshalling the evidence. 	We
consequently accept the trial court’s factual findings as
conclusive. 	Because its findings are quite sparse, however, we
also look to the record consistent with the district court’s
findings. 10
ANALYSIS
¶13 	We first consider Worwood’s state constitutional claim,
but find it to be procedurally barred. 	We then turn to Worwood’s
claims under the Fourth Amendment of the United States
Constitution and find that Wright’s initial encounter with
Worwood was justified under reasonable suspicion. 	The scope and
coercive nature of the stop, however, exceeded the constitutional
bounds of an investigative detention. 	Because the field sobriety
tests were conducted as a result of the unreasonable scope and
coercive nature of the stop, we hold that the results of those
tests must be suppressed.

11 See, e.g., Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122
P.3d 506, reversed, 126 S. Ct. 1943 (2006).
12 See West v. Thomson Newspapers, 872 P.2d 999, 1005-07
(Utah 1994).
13 Id. at 1006 (quoting Christine M. Durham, Employing the
Utah Constitution in the Utah Courts, Utah B.J., Nov. 1989, at
26).
14 See, e.g., State v. Thompson, 810 P.2d 415, 418 (Utah
1991) (finding that Utah citizens have a “right to be secure
against unreasonable searches and seizures” of their bank
records, although the Fourth Amendment provides no such
protection); State v. Larocco, 794 P.2d 460, 465-71 (Utah 1990)
(providing greater state constitutional protection from
warrantless vehicle searches than that provided under the Fourth
Amendment).
15 See State v. Harris, 2004 UT 103, ¶ 23, 104 P.3d 1250;
State v. Calliham, 2002 UT 86, ¶ 32 n.8, 55 P.3d 573.
5 	No. 20060048
I. 	WORWOOD’S STATE CONSTITUTIONAL CLAIM IS
PROCEDURALLY BARRED
¶14 	We would have welcomed an analysis under article I,
section 14 of the Utah Constitution; however, we find Worwood’s
state constitutional claim to be procedurally barred and
inadequately briefed. 	We have repeatedly instructed counsel on
the consequences of failing to properly preserve and develop a
state constitutional law claim. 11 	Still, this instruction bears
repeating, given the frequency with which these claims are
inadequately briefed before this court.
¶15 	When interpreting state constitutional provisions that
are similar or identical to those in the federal constitution, we
encourage a primacy approach. 12 	Under the primacy model, “‘a
state court looks first to state constitutional law, develops
independent doctrine and precedent, and decides federal questions
only when state law is not dispositive.’” 13
¶16 	In developing an independent body of state search and
seizure law, we have held that article I, section 14 of the Utah
Constitution often provides greater protections to Utah citizens
than the Fourth Amendment, despite nearly identical language. 14
In order to further develop state constitutional law, however,
claims must be properly presented to this court. 15 	In criminal
cases, “‘specific preservation of claims of error must be made a

16 State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989)
(quoting State v. Tillman, 750 P.2d 546, 551 (Utah 1987)).
17 State v. Cruz, 2005 UT 45, ¶ 33, 122 P.3d 543 (quoting
State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993)); accord
State v. Cram, 2002 UT 37, ¶ 9, 46 P.3d 230 (“[T]o preserve a
claim or an objection for appellate review, the defendant must
raise a timely or contemporaneous claim or objection.”).
18 Brown, 856 P.2d at 361.
19 State v. Holgate, 2000 UT 74, ¶¶ 11-13, 10 P.3d 346;
State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996).
20 State v. Lafferty, 749 P.2d 1239, 1247 n.5 (Utah 1988);
accord Brigham City v. Stuart, 2005 UT 13, ¶ 14, 122 P.3d 506
(“[W]e are resolute in our refusal to take up constitutional
issues which have not been properly preserved, framed and briefed
. . . .”), reversed, 126 S. Ct. 1943 (2006).
21 See, e.g., State v. Debooy, 2000 UT 32, ¶ 12, 996 P.2d
546; Soc’y of Separationists v. Whitehead, 870 P.2d 916, 940
(Utah 1993) (“The federal rulings set the floor for federal
(continued...)
No. 20060048 	6
part of the trial court record’” before the issue can be heard on
appeal. 16 	The issue must be “‘raised to a level of
consciousness’” that allows the trial court an adequate
opportunity to address it. 17 	It follows, then, that
perfunctorily mentioning an issue, without more, does not
preserve it for appeal. 18 	Although inapplicable in this case, a
court may consider an unpreserved issue when plain error is
apparent or in an exceptional circumstance. 19 	Furthermore, in
part on the basis of the principle that preservation requires the
lower court to be cognizant of a discreet issue, we have
repeatedly refrained from engaging in state constitutional law
analysis unless “an argument for different analyses under the
state and federal constitutions is briefed.” 20
¶17 	On some level, we understand counsel’s hesitance to
robustly address state constitutional issues in the lower courts.
The similarity between the Fourth Amendment and article I,
section 14 of the Utah Constitution plus the fledgling
development of state search and seizure law makes some reliance
on principles from federal cases likely. 	And because the federal
search and seizure rules provide a floor from which state
constitutional law can depart, interpretations of these
provisions will oftentimes substantially overlap. 21 	Finally, as

21 (...continued)
constitutional protections which we must respect in interpreting
the scope of our own constitution’s provisions.”).
7 	No. 20060048
a practical matter, trial courts may be reluctant to decide
search and seizure issues on grounds that deviate from well-
established, albeit murky, federal constitutional principles.
¶18 	Nevertheless, in keeping with our preservation policy,
a state constitutional law argument must be raised in the trial
court, preserved through the appellate process, and adequately
briefed to us. 	As with most legal arguments, there is no magic
formula for an adequate state constitutional analysis. 	Arguments
based, for example, on historical context, the constitution’s
text, public policy, or persuasive authority would all meet our
briefing requirements. 	But cursory references to the state
constitution within arguments otherwise dedicated to a federal
constitutional claim are inadequate. 	When parties fail to direct
their argument to the state constitutional issue, our ability to
formulate an independent body of state constitutional law is
compromised. 	Inadequate briefing denies our fledgling state
constitutional analysis the full benefit of the interested
parties’ thoughts on these important issues.
¶19 	Throughout the appellate process, Worwood has claimed
that his appeal is partially based on article I, section 14 of
the Utah Constitution. 	No distinct legal argument or analysis
supports this assertion, however. 	Instead, in motions and briefs
to the trial court and the court of appeals, Worwood nominally
relies on article I, section 14, but actually bases his argument
exclusively on the Fourth Amendment. 	Worwood neither attempts
any separate state constitutional analysis nor suggests that the
two constitutional protections are anything but coextensive. 	In
his brief to us, Worwood’s state constitutional analysis is
limited to the truism that article I, section 14 may provide
greater protections to Utah citizens than the Fourth Amendment.
But he failed to advance a unique state constitutional analysis.
Because Worwood’s state constitutional claim was neither properly
preserved in the trial court, properly presented to the court of
appeals, nor adequately briefed to us, we decline to reach it.
II. 	WRIGHT’S ACTIONS VIOLATED THE FOURTH AMENDMENT
¶20 	We now turn to Worwood’s claim under the federal
constitution and hold that the scope of Worwood’s detention
exceeded the constitutional bounds of an investigative detention,
transforming it into a de facto arrest without probable cause.
From the point when Wright required Worwood to get into Wright’s

22 State v. Markland, 2005 UT 26, ¶ 10 n.1, 112 P.2d 507
(quoting State v. Johnson, 805 P.2d 761, 763 (Utah 1991)).
23 Id. ¶ 10 (citing United States v. Arvizu, 534 U.S. 266,
273 (2002)).
24 Id. (quoting State v. Chapman, 921 P.2d 446, 450 (Utah
1996)).
25 Black’s Law Dictionary 1273 (7th ed. 1999).
No. 20060048 	8
truck for transport down Deep Canyon, Wright’s actions were not
reasonably necessary to further his investigation.
A. 	Wright’s Interaction with Worwood Was an Investigative
Detention Requiring Reasonable Suspicion of Criminality
¶21 	The Fourth Amendment allows for three different kinds
of police-citizen encounters, each permitting a different degree
of intrusion and requiring a different level of justification.
“(1) An officer may approach a citizen at any
time and pose questions so long as the
citizen is not detained against his will;
(2) an officer may seize a person if the
officer has an articulable suspicion that the
person has committed or is about to commit a
crime . . . ; (3) an officer may arrest a
suspect if the officer has probable cause to
believe an offense had been committed or is
being committed.” 22
¶22 	Both parties concede that the encounter between Wright
and Worwood was at least a seizure, rather than a consensual
interaction. 	Consequently, we focus on the nature of an
investigative detention, also known as a level two stop, and the
kinds of actions that are justified in the course of such a
detention.
¶23 	Investigative detentions are bound by the Fourth
Amendment. 23 	Justification for an investigative detention exists
when an officer has “‘reasonable, articulable suspicion that the
person has been, is, or is about to be engaged in criminal
activity.’” 24 	Reasonable suspicion requires a “particularized
and objective basis, supported by specific and articulable
facts.” 25 	Courts should evaluate these facts in their totality,

26 State v. Alverez, 2006 UT 61, ¶ 14, 147 P.3d 425.
27 Markland, 2005 UT 26, ¶ 10 (quoting Terry v. Ohio, 392
U.S. 1, 27 (1968)).
28 Florida v. Royer, 460 U.S. 491, 497-500 (1983) (holding
that the state must prove that the seizure was “sufficiently
limited in scope and duration to satisfy the conditions of an
investigative seizure”); United States v. Carhee, 27 F.3d 1493,
1496 & n.2 (10th Cir. 1994).
29 United States v. Sharpe, 470 U.S. 675, 689 (1985)
(Marshall, J., concurring) (citing Terry, 392 U.S. at 26).
30 Id. (quoting Terry, 392 U.S. at 26); Dunaway v. New York,
442 U.S. 200, 212 (1979) (indicating that intrusions based on
reasonable suspicion rather than probable cause are justified
only when they fall “short of the kind of intrusion associated
with an arrest”).
31 Kaupp v. Texas, 538 U.S. 626, 630-31 (2003) (finding that
a de facto arrest occurred when police took a scantily clad,
adolescent suspect from his home in the middle of the night to
police headquarters); Hayes v. Florida, 470 U.S. 811, 815-16
(continued...)
9 	No. 20060048
rather than looking at each fact in isolation. 26 	Although the
standard requires more than an “‘inchoate and unparticularized
. . . hunch,’” it does not require an officer to rule out
innocent conduct or establish the likelihood of criminal conduct
to the same degree as required for probable cause. 27 	When
challenged, the state has the burden of proving the
reasonableness of the officer’s actions during an investigative
detention. 28
¶24 	In considering the constitutionality of an
investigative detention, we remain mindful of the Supreme Court’s
two initial justifications for allowing seizures based on
reasonable suspicion, rather than on probable cause. 	First, a
detention based on a reasonable and articulable suspicion is
justified when the need to prevent “imminent criminal activity
. . . outweigh[s] the . . . privacy interests implicated by a
limited [investigatory] stop.” 29 	Second, a detention is supposed
to involve a “‘wholly different kind of intrusion upon individual
freedom’ than a traditional arrest.” 30 	Because a detention is
supposed to be less intrusive than an arrest, we are particularly
cognizant of the level of coercion involved, given the suspected
crime. 31 	These justifications inform our analysis of the

31 (...continued)
(1985) (“At some point in the investigative process, police
procedures can qualitatively and quantitatively be so intrusive
with respect to a suspect’s freedom of movement and privacy
interests as to trigger the full protection of the Fourth and
Fourteenth Amendments.”); Royer, 460 U.S. at 499 (“Detentions may
be ‘investigative’ yet violative of the Fourth Amendment absent
probable cause. 	In the name of investigating a person who is no
more than suspected of criminal activity, the police may not
. . . seek to verify their suspicions by means that approach the
conditions of arrest.”); Dunaway, 442 U.S. at 212 (taking a
suspect from a neighbor’s home in a police car to a police
station interrogation room is “in important respects
indistinguishable from a traditional arrest”).
32 Terry, 392 U.S. at 19-20.
33 Id. at 20.
34 Id. at 19 (quoting Warden v. Hayden, 387 U.S. 294, 310
(1967) (Fortas, J., concurring)); Sharpe, 470 U.S. at 682; State
v. Johnson, 805 P.2d 761, 763 (Utah 1991).
No. 20060048 	10
permissible boundaries of investigative detentions.
1. 	Wright’s Initial Stop of Worwood Was Justified Under
Reasonable Suspicion
¶25 	Our analysis of the reasonableness of an officer’s
actions in the context of an investigative detention requires a
dual inquiry. 32 	We first consider “whether the officer’s action
was justified at its inception.” 33 	We next consider whether the
length and scope of the detention are “‘strictly tied to and
justified by’ the circumstances which rendered its initiation
permissible.” 34
¶26 	As to the first inquiry, Wright observed articulable
facts that Worwood had been or was about to drive under the
influence, which justified his initial stop. 	He saw a large
water spot on the road, a crushed beer can, and later, a cooler.
He saw Worwood behind the wheel of his truck. 	He also smelled
alcohol on Worwood’s breath. 	This evidence justified Wright’s
reasonable suspicion of criminal activity and some intrusion into
Worwood’s personal liberty.
2. 	Considering the Totality of the Circumstances, the Scope of
Worwood’s Detention Exceeded that Justified Under Reasonable
Suspicion and Constituted a De Facto Arrest

35 People v. Celis, 93 P.3d 1027, 1032-33 (Cal. 2004)
(finding that brandishing weapons and handcuffing a drug
trafficking suspect was justified given the suspected crime, but
acknowledging that a routine traffic stop would “rarely justify”
a comparable police response).
36 Sharpe, 470 U.S. at 686 (citing Michigan v. Summers, 452
U.S. 692, 701 n.14 (1981)).
37 Id. at 687.
38 Id. at 686-87; State v. Warren, 2003 UT 36, ¶ 14, 78 P.3d
590.
39 Brigham City v. Stuart, 126 S. Ct. 1943, 1948 (2006)
(quoting Scott v. United States, 436 U.S. 128 (1978)); accord
Whren v. United States, 517 U.S. 806, 813 (1996) (“Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis.”); Graham v. Connor, 490 U.S. 386, 397 (1989)
(indicating that a Fourth Amendment reasonableness inquiry
requires the court to consider “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation”); State v. Lopez, 873 P.2d 1127, 1136-38 (Utah 1994)
(continued...)
11 	No. 20060048
¶27 	We next consider the reasonableness of the
investigative detention’s scope and duration. 	Because the
constitutionality of an investigative detention turns on the
interconnection between the purpose of the stop and its
subsequent scope, the specific means of detention used by the
police in one instance does not create the outer limit for a
constitutional investigative detention in every case. 35
¶28 	In evaluating the scope of a stop, the court should
foremost consider “whether the police diligently pursued a means
of investigation that was likely to confirm or dispel their
suspicions quickly.” 36 	That being said, officers are not
required to use the least intrusive means available in pursuing
their investigation; the question is merely “whether the police
acted unreasonably in failing to . . . pursue” alternatives. 37
The reasonableness of a detention should be evaluated on the
basis of the totality of the circumstances facing the officer,
not on judicial second-guessing. 38 	The court should consider
whether “‘the circumstances, viewed objectively, justify [the]
action,’” “regardless of the individual officer’s state of
mind.” 39 	While an officer’s subjective inferences based on the

39 (...continued)
(“[S]ubjective focus on the officer’s state of mind at the time
of the stop is inconsistent with Fourth Amendment law.”).
40 State v. Alverez, 2006 UT 61, ¶ 15, 147 P.3d 425.
41 Florida v. Royer, 460 U.S. 491, 504-05 (1983).
42 See, e.g., In re Carlos M., 269 Cal. Rptr. 447, 452 n.4,
452-55 (Ct. App. 1990) (holding that an officer was expeditiously
pursuing his investigation when he transported two suspects to a
hospital to be identified by a rape victim).
43 Dunaway v. New York, 442 U.S. 200, 212 (1979) (holding
that a detention where a suspect was “taken from a neighbor’s
home to a police car, transported to a police station, and placed
in an interrogation room” “was in important respects
indistinguishable from a traditional arrest”).
44 Id.; Royer, 460 U.S. at 502-03 (holding that a suspect
interrogated in “a police interrogation room” while the police
held his airline ticket, identification, and luggage was “[a]s a
practical matter . . . under arrest”); Wayne R. LaFave, Search &
(continued...)
No. 20060048 	12
objective facts affect a court’s determination of whether
reasonable suspicion exists, improper subjective motivations do
not negate what would otherwise be a reasonable search based on
objectively reasonable facts. 40
¶29 	Given the facts of this particular investigative
detention, we pause to consider the circumstances under which
extending the length of an investigative detention to transport a
suspect to another location is justified under reasonable
suspicion. 	An officer’s concerns about safety and security can
justify extending the scope of an investigative detention. 41
Transporting a suspect to a known crime scene or to the location
of a known witness is often justified as the most expeditious
means of achieving the purpose of the initial stop. 42
¶30 	But transporting a suspect can change the level of
coercion involved in an investigative detention to the degree
that it is no longer justified under reasonable suspicion. 	An
investigatory detention can become so intrusive that it escalates
into a de facto arrest. 43 	For instance, moving a suspect from a
public place to an enclosed, police-dominated location can change
the level of justification required from reasonable suspicion to
probable cause. 44 	On the other hand, transporting a defendant

44 (...continued)
Seizure: A Treatise on the Fourth Amendment § 9.2(g) (4th ed.
2004) (indicating that a change in the degree of coerciveness may
“justify the conclusion that the movement of a suspect has
transformed the stop into an arrest even though the relocation
was not to a police facility”).
45 See United States v. Nurse, 916 F.2d 20, 22, 24 (D.C.
Cir. 1990) (escorting a defendant into the main public concourse
of a train station from an outside taxi stand did not change the
level of coercion enough to exceed the limitations of reasonable
suspicion); United States v. Mendenhall, 446 U.S. 544, 563 (1980)
(Powell, J., concurring) (detaining a suspect in a public place
is less coercive than detention where the suspect is “isolated
from assistance”).
46 2005 UT App 41, ¶ 15, 107 P.3d 706 (citation, internal
quotation marks, and brackets omitted).
13 	No. 20060048
may be benign when the movement does not change the level of
coercion involved in the stop. 	For example, an investigative
detention is not necessarily transformed into a de facto arrest
when the suspect is moved a short distance from one public place
to another. 45 	We agree with the court of appeals’ analysis in
State v. Chism that “[i]nvestigative acts that are not reasonably
related to dispelling or resolving the articulated grounds for
the stop are permissible only if they do not add to the delay
already lawfully experienced and do not represent any further
intrusion on the detainee’s rights.” 46
¶31 	While we are cognizant that there may be circumstances
when moving a suspect is necessary because of safety and security
concerns, such circumstances are not evident in this case.
Although the initial encounter occurred on a dirt road, Wright
did not indicate that the road conditions prohibited him from
conducting field sobriety tests. 	He made no indication that the
grade, pitch, or width of the road created safety concerns that
prohibited him from conducting such tests, and we find no
objective facts in the record indicating that such a concern
would have been reasonable. 	There is no indication of traffic
and no indication that the weather or time of day prevented
Wright from accurately conducting the tests. 	There is no
indication that Wright was concerned about his safety, having
come upon the situation while off-duty, in his private car, and
unarmed. 	Further, there is no indication that Worwood was
belligerent or even uncooperative. 	Although the record is silent
on these potentially determinative factors, had any of them been

No. 20060048 	14
present, a more expansive detention may have been justified under
reasonable suspicion.
¶32 	Next, Worwood was not detained and transported to
expedite the conclusion of the investigatory detention; if
anything, Wright’s actions prolonged the investigative detention
with no justifiable purpose. 	After ascertaining that Worwood had
slurred speech and bloodshot eyes and smelled of alcohol, the
next reasonable step to confirm or dispel Wright’s suspicions was
to conduct field sobriety tests. 	Instead of taking this step,
Wright instructed Worwood to get into Wright’s truck, drove him
down Deep Canyon, and detained him at Wright’s private residence
until an on-duty officer arrived to conduct field sobriety tests.
These actions were unreasonable because there is no indication in
the factual record that Wright was unable to conduct field
sobriety tests at the initial scene of the stop.
¶33 	Finally, the facts of Worwood’s detention in their
totality push the coercive nature of this detention beyond the
narrow bounds of a constitutional investigative detention.
Wright’s statement to Worwood that “we’d better have a trooper
look at you before you drive anymore” indicates that compliance
was mandatory. 	Worwood was then detained in Wright’s vehicle,
and his truck was driven away by a stranger--Skylar Fautin--while
Worwood remained in Wright’s truck. 	Wright drove Worwood to
Wright’s personal residence to await the arrival of Officer Kevin
Wright. 	Whether Worwood sat in the back or front of Wright’s
vehicle and whether Worwood was detained inside or outside of
Wright’s residence are unknown facts that may also bear on the
level of coercion. 	Had concerns about safety, security, or the
need to expedite the investigation justified Wright’s movement of
Worwood, these unknown facts may have been critical. 	In this
case, however, the fact that Worwood was placed in Wright’s truck
and moved to Wright’s private residence increased the level of
coercion without justification. 	Consequently, we find that
Wright’s detention of Worwood exceeded the permissible scope of a
constitutional investigative detention.
3. 	Wright Did Not Have Probable Cause to Justify a De Facto
Arrest
¶34 	Because Worwood’s detention amounted to a de facto
arrest, we now consider whether there was probable cause to
justify an arrest. 	“Probable cause exists where the facts and
circumstances within the officer’s knowledge and of which they
had reasonably trustworthy information are sufficient in

47 State v. Menke, 787 P.2d 537, 542 (Utah Ct. App. 1990)
(citation, internal quotation marks, and brackets omitted).
48 See State v. Vailpando, 2004 UT App 95, ¶¶ 3-4, 89 P.3d
209; Layton City v. Noon, 736 P.2d 1035, 1038 (Utah Ct. App.
1987). 	But see Commonwealth v. Eckert, 728 N.E.2d 312, 319
(Mass. 2000) (finding probable cause exclusively from
observations of red and watery eyes, slurred speech, and the
smell of alcohol).
49 2004 UT App 172U, para. 3.
15 	No. 20060048
themselves to warrant a man of reasonable caution in the belief
that an offense has been or is being committed.” 47
¶35 	During the course of the stop, Wright smelled alcohol
and observed Worwood’s bloodshot eyes and slurred speech. 	Utah
courts generally find that probable cause for DUI exists when
slurred speech, bloodshot eyes, and the smell of alcohol are
accompanied by failed field sobriety tests. 48 	However, in
American Fork City v. Singleton, the court of appeals found
probable cause for DUI without the benefit of field sobriety
tests when the suspect had “glassy, bloodshot eyes,” swayed when
he walked, and became belligerent when asked to take a field
sobriety test. 49 	But there was more evidence of the suspect’s
possible drunkenness in Singleton than was present here,
including at least one piece of evidence typically garnered from
a traditional field sobriety test: 	unsteady walking.
¶36 	We conclude that Worwood’s bloodshot eyes and slurred
speech and the smell of alcohol did not provide sufficient
trustworthy information for Wright to conclude that Worwood had
exceeded the legal alcohol limit. 	Consequently, there was no
probable cause for Worwood’s de facto arrest. 	Further,
concluding otherwise would essentially eliminate any incentive
for officers to conduct field sobriety tests, a policy outcome
that would introduce needless subjectivity and potential abuse
into drunk driving assessments.
4. Sufficiency of Worwood’s Suppression Motion
¶37 	Before proceeding to our suppression analysis, we pause
to consider the dissent’s contention that Worwood’s challenge
below was so ill-defined that the State could not adequately
address his suppression motion. 	After carefully reviewing the
record, we conclude that Worwood made and preserved before the
trial court the arguments that he later made on appeal. 	In his
initial memorandum in support of his motion to suppress, Worwood

50 United States v. De La Fuente, 548 F.2d 528, 533 (5th
Cir. 1977) (“[T]he burden of production and persuasion generally
rests upon the movant in a suppression hearing . . . [;]
[however,] if a defendant produces evidence that he was arrested
or subjected to a search without a warrant, the burden shifts to
the government to justify the warrantless arrest or search.”);
United States v. Crocker, 510 F.2d 1129, 1135 (10th Cir. 1975)
(“Logic dictates that a pre-trial Motion to Suppress filed by an
accused does in fact cast the burden upon the movant to present
facts necessary to sustain his position.”).
51 United States v. Carhee, 27 F.3d 1493, 1496 (10th Cir.
1994) (“As to the warrantless encounter, [the defendant] bears
the burden of proving whether and when the Fourth Amendment was
implicated . . . . The government then bears the burden of
proving that its warrantless actions were justified . . . .”).
No. 20060048 	16
established multiple bases for challenging the constitutionality
of Wright’s stop. 	First, Worwood argued that Wright’s actions
constituted a seizure. 	Second, after reciting the appropriate
legal standard and the specific facts surrounding this stop,
Worwood argued that “the officer lacked sufficient objective
facts to constitute reasonable suspicion or probable cause to
arrest.” 	Third, Worwood alternatively argued that if the court
finds reasonable suspicion, “the detention was unreasonable as to
scope and length of time.” 	Finally, Worwood argued that he was
unconstitutionally arrested because he “was taken into custody
. . . and not free to leave at the scene of the police
encounter.”
¶38 	Throughout its opposition to Worwood’s suppression
motion, the State never argued that Worwood’s federal challenge
was vague, incomplete, or lacking requisite specificity.
Additionally, at the preliminary hearing on the suppression
motion, the State and Worwood had equal opportunity to illicit
relevant facts from both Kevin Wright and Korey Wright. 	We
accordingly reject the dissent’s suggestion that Worwood’s
suppression motion was inadequate or that the State viewed it as
such.
¶39 	It has long been the law that once a defendant
adequately challenges a warrantless seizure, the State bears the
burden of proving the reasonableness of law enforcement’s action.
In order to meet his initial burden of production, 50 a defendant
seeking to suppress evidence must articulate how law
enforcement’s action infringed the Fourth Amendment. 51 	On the
basis of our review of the record, we find that Worwood’s Fourth
Amendment challenge was quite adequate. 	He clearly challenged

52 Id.; United States v. Roch, 5 F.3d 894, 897 (5th Cir.
1993); Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment 11.2(b), at 42 (4th ed. 2004) (“[I]f the police
acted without a warrant the burden of proof is on the
prosecution.”).
53 Florida v. Royer, 460 U.S. 491, 500 (1983).
54 Terry v. Ohio, 392 U.S. 1, 20-22 (1968).
17 	No. 20060048
the constitutionality of the initial stop, as well as the scope
of the stop, and supported that challenge with factual
references.
¶40 	Once a valid constitutional challenge is made, the
burden shifts to the State to prove that its warrantless action
was justified. 52 	And a dearth of evidence cannot be assumed to
support the reasonableness of an officer’s actions during an
investigative detention. 	Such an assumption turns this
well-established proof requirement on its head. 	The United
States Supreme Court has long held that “[i]t is the State’s
burden to demonstrate that the seizure it seeks to justify on the
basis of a reasonable suspicion was sufficiently limited in scope
and duration to satisfy the conditions of an investigative
seizure.” 53 	Officers, and consequently the state, are burdened
by the requirement of reasonableness throughout an investigative
detention because of the “Fourth Amendment’s general proscription
against unreasonable searches and seizures.” 54 	This burden is
not contingent on what specific evidence is challenged in a
defendant’s suppression motion, but rather on the nature of the
constitutional challenge.
B. 	The Field Sobriety Tests Must Be Suppressed as
Evidence Obtained from an Unconstitutional Detention
¶41 	Having concluded that the field sobriety tests were
conducted after an unconstitutionally expansive investigatory
detention of Worwood, we next consider whether the tests are
subject to suppression. 	Because we find that the field sobriety
tests were obtained as a result of Worwood’s illegal detention,
we reverse the court of appeals’ affirmation of the district
court’s denial of Worwood’s suppression motion.
¶42 	When applicable, the exclusionary rule keeps out of
trial evidence primarily or derivatively obtained through a
violation of an individual’s constitutional rights (the “fruit”

55 State v. Topanotes, 2003 UT 30, ¶ 13, 76 P.3d 1159.
56 Weeks v. United States, 232 U.S. 383, 393-98 (1914).
57 Michigan v. Hudson, 126 S. Ct. 2159, 2163 (2006) (citing
United States v. Leon, 468 U.S. 897, 907 (1984)).
58 Topanotes, 2003 UT 30, ¶¶ 13-14.
59 Hudson, 126 S. Ct. at 2164; Segura v. United States, 468
U.S. 796, 815 (1984).
60 Topanotes, 2003 UT 30, ¶ 13.
61 Id. ¶ 14.
62 Id. ¶ 16.
No. 20060048 	18
of unconstitutional police conduct). 55 	It was first adopted to
deter unlawful police conduct by preventing police from
benefitting from activities violative of the Fourth Amendment. 56
Because of the high social cost attendant with suppressing
evidence, 57 however, the rule is not operable when the evidence
in question has been cleansed of the taint of illegality, a
circumstance that can occur in a number of different ways. 58
¶43 	Evidence will not be excluded as fruit of an illegal
search or seizure if the illegality is not the “but for” cause of
the evidence’s discovery. 59 	The causal chain between the
illegality and the discovered evidence can be broken if the
evidence was also “discovered through independent and lawful
activity”--in other words, through an independent source. 60 	The
independent source doctrine has a forward-looking corollary in
the inevitable discovery doctrine. 	While the independent source
doctrine looks at what was actually discovered, the inevitable
discovery doctrine considers what hypothetically would have been
discovered. 61 	For courts to apply the inevitable discovery
doctrine, “there must be persuasive evidence of events or
circumstances apart from those resulting in illegal police
activity that would have inevitably led to discovery.” 62 	In sum,
the independent source and inevitable discovery doctrines are two
ways that the causal link between the initial illegality and the
evidence can be broken.
¶44 	Even if the illegality is the “but for” reason for the
evidence’s discovery, it should still be admitted if it is
“sufficiently attenuated to dissipate the taint” of the

63 Segura, 468 U.S. at 815.
64 Id. at 804-05 (quoting Wong Sun v. United States, 371
U.S. 471, 488 (1963)).
65 Hudson, 126 S. Ct. at 2164; Wong Sun, 371 U.S. at 491.
66 Hudson, 126 S. Ct. at 2164, 2165 (holding that the
interests protected by the knock and announce rule “ha[d] nothing
to do with the seizure of the evidence”).
67 Id. at 2163 (citation and internal quotation marks
omitted).
68 203 F.3d 356, 357 (5th Cir. 2000) (per curiam).
69 Id. at 357.
19 	No. 20060048
illegality. 63 	The court asks whether the challenged evidence was
obtained “‘by exploitation of [the initial] illegality or instead
by means sufficiently distinguishable to be purged of the primary
taint.’” 64 	Attenuation can occur if the connection between the
illegality and the evidence is too remote. 65 	It can also occur
if “the interest protected by the constitutional guarantee that
has been violated would not be served by suppression of the
evidence obtained.” 66 	As a final policy consideration, the
exclusionary rule is applicable only “where its deterrence
benefits outweigh its substantial social costs.” 67
¶45 	The State argues that the challenged field sobriety
test results were “conducted on the basis of pre-detention
reasonable suspicion.” 	The State argues that because there was a
constitutional basis for the field sobriety tests without the
illegal detention, the evidence was not obtained by exploiting
the initial illegality. 	In short, the State argues that there
was no causal chain linking the Fourth Amendment violation to the
field sobriety tests.
¶46 	In support of this argument, the State cites cases in
which the causal links between the illegality and the evidence
were never established. 	For instance, in United States v.
Ibarra-Sanchez, officers found evidence of a crime after
conducting a legal stop but an illegal arrest. 68 	Because the
probable cause that led to the discovery of the challenged
evidence was the fruit of the legal stop rather than the illegal
arrest, there was no causal connection between the illegal arrest
and the discovered evidence. 69 	And in Hudson v. Michigan, police
had enough evidence to establish probable cause and obtain a

70 126 S. Ct. 2159, 2162 (2006).
71 Id. at 2164.
72 2003 UT 30, 76 P.3d 1159.
73 Id. ¶¶ 2, 5.
74 Id. ¶ 3.
75 Id.
No. 20060048 	20
warrant, but violated the knock-and-announce rule. 70 	The Court
stated that “the constitutional violation of an illegal manner of
entry was not a but-for cause of obtaining the evidence. 	Whether
that preliminary misstep had occurred or not, the police would
have executed the warrant they had obtained, and would have
discovered the gun and drugs inside the house.” 71
¶47 	The circumstances of both cases differ from those
present here. 	Unlike Ibarra-Sanchez and Hudson, Worwood’s
illegal detention was the but-for cause of Officer Kevin Wright’s
administration of the field sobriety tests at Wright’s home.
There was no intervening event to break the causal chain. 	The
fact that before the illegality reasonable suspicion would have
justified further investigation does not break the actual
linkages between the illegal detention and the field sobriety
tests. 	Investigations under reasonable suspicion do not have a
shelf life, unlike a transportable warrant. 	An officer must
either confirm the suspicion by establishing probable cause for
arrest or dispel the suspicion and release the suspect. 	Wright
took neither constitutional path. 	Instead, he not only exploited
the illegality in order to obtain the evidence needed for
probable cause, he arguably created the illegality in order to
obtain the evidence without conducting the arrest himself. 	The
field sobriety tests would not have been obtained absent the
illegality or different choices by Wright.
¶48 	Under our decision in State v. Topanotes,72 we cannot
assume that Wright would have conducted a field sobriety test at
the scene of the initial encounter if he had not chosen to
illegally transport Worwood. 	In Topanotes, officers retained the
defendant’s identification during a consensual stop, elevating
the stop to one requiring reasonable suspicion. 73 	A subsequent
warrants check revealed two outstanding arrest warrants. 74 	In
the search incident to arrest, officers found heroin on the
defendant. 75 	Relying on the defendant’s cooperative nature
throughout the stop, the State argued that the heroin would have

76 Id. ¶ 19.
77 Id. ¶ 20.
78 Id.; cf. Segura, 468 U.S. at 816 (declining to assume
that the defendant and her cohorts would have destroyed the
evidence sought in the warrant had the initial illegal entry not
occurred).
79 Topanotes, 2003 UT 30, ¶ 19.
21 	No. 20060048
been inevitably discovered had the defendant not been unlawfully
detained. 76 	We rejected this argument, reasoning that just
because the defendant was cooperative while her identification
was seized, that did not mean that she would have been
cooperative if she had been truly free to leave. 77
¶49 	We reaffirm our conclusion in Topanotes that “[c]ases
that rely upon individual behavior as a crucial link in the
inevitable discovery chain, particularly when that behavior is
heavily influenced by the illegality that did occur, rarely
sustain an inevitable discovery theory.” 78 	Absent the
illegality, Wright may have conducted the field sobriety tests on
the roadside, but he may have just as likely released Worwood to
avoid the trouble of making an off-duty arrest.
¶50 	Finally, we find that the deterrent benefits of
suppression in this case clearly outweigh its social costs.
Allowing an officer to capriciously move a defendant without fear
that subsequently obtained evidence would be suppressed creates
an incentive for police misconduct. 	Denying the defendant’s
suppression motion encourages an “if we hadn’t done it wrong, we
would have done it right” defense, insulating officers from any
repercussions from unconstitutionally extending investigative
detentions. 79
CONCLUSION
¶51 	Under the Fourth Amendment, we find that the scope of
Worwood’s detention exceeded the bounds of a constitutional
investigative stop. 	Although Wright’s initial stop of Worwood
was justified under reasonable suspicion, the subsequent
detention was needlessly extended from the point when Worwood was
confined in Wright’s truck. 	As the field sobriety tests were
discovered because of the unreasonably excessive scope of the
investigatory detention, we hold that the results of the tests
should be suppressed. 	We remand this case to the court of

No. 20060048 	22
appeals to remand to the district court for a ruling consistent
with this opinion.
---
¶52 	Chief Justice Durham, Justice Durrant, and Justice
Nehring concur in Justice Parrish’s opinion.
---
WILKINS, Associate Chief Justice, dissenting:
¶53 	I respectfully dissent.
¶54 	My colleagues conclude that the off-duty officer’s
initial “stop” of Worwood was constitutionally justified, and
that further investigation could have been undertaken at that
time by use of field sobriety tests without offense to the
constitution. 	However, they also conclude that the constitution
is offended by the off-duty officer transporting Worwood from the
rural mountain dirt road where he was discovered behind the wheel
of his vehicle smelling of alcohol with bloodshot eyes and
slurred speech. 	This, they conclude, results in a de facto
arrest without adequate justification. 	I disagree.
¶55 	Worwood filed a motion to suppress “the evidence” due
to unspecified and unidentified violations of the Fourth
Amendment and article I, section 14 of the Utah Constitution. 	He
made no argument based upon the alleged violation of the state
constitutional provision he cited. 	He did little more with the
federal constitutional claim.
¶56 	On the basis of this thin legal effort, the State was
required to respond in defense of the acts of the off-duty
officer in moving Worwood down the Deep Canyon road a mile and a
half to meet an on-duty officer who had the communication,
record-keeping, security, and containment equipment not possessed
by the off-duty officer when he chanced to encounter Worwood on
the mountain road. 	Against the ill-defined challenge leveled by
Worwood, the State presented evidence of the actions and
circumstances surrounding the eventual formal arrest of Worwood,
a serial drunk driver. 	We do not know from the record before us
what evidence was available to the State but not presented at the
time of the trial court hearing on Worwood’s motion to suppress
“the evidence” against him. 	Had Worwood presented a clear and
concise challenge to the degree of detention to which he had been
subjected, and the basis upon which he considered the objective
facts surrounding that detention to have been inadequate as a

23 	No. 20060048
matter of constitutional law, the State may well have been able
to address those challenges. 	Although the State bears the burden
of proving the reasonableness of an officer’s actions during an
investigative detention, that burden arises only when the actions
and their reasonableness have been challenged. 	Such a challenge
has to be recognizable to be sufficient.
¶57 	As my colleagues note, there are many probative and
useful facts that we cannot discern from the record. 	For
example, we do not know what concern the road conditions at the
time of the first contact may have presented. 	We do not know the
grade, width, pitch, surface quality, or other condition of the
road surface. 	We know not the weather, time of day, light
conditions, or other site factors that might have influenced the
off-duty officer’s decision to move Worwood down canyon to
investigate further. 	We do not know if the officer was concerned
about his safety, or that of his companion, or of Worwood, since
the officer was in his private vehicle, unarmed, without
communication equipment, and off-duty. 	We do not know if Worwood
was uncooperative, or even belligerent, or if the officer was
aware of Worwood having a reputation for resistant behavior. 	We
do not know why the officer took Worwood the additional mile and
one half to meet an on-duty officer. 	We do not know if Worwood
was required to ride in front or back of the off-duty officer’s
vehicle, or whether he was taken inside or remained outside of
the residence to which he was taken to meet the on-duty officer.
¶58 	We do not know from the record whether or not Worwood
was unsteady on his feet at the time he moved from his truck to
the off-duty officer’s vehicle. 	This alone may have been enough
to justify Worwood’s arrest without administration of field
sobriety tests.
¶59 	All of these unknown objective facts were within the
personal knowledge of the off-duty officer, and presumably could
have been competently testified to at the time of Worwood’s
motion to suppress “the evidence” against him. 	Had they been
placed in contest by Worwood, it is difficult to imagine that the
State, when it had the off-duty officer on the stand, would not
have sought to present the evidence to the trial court.
¶60 	Unlike my colleagues, I conclude that the objective
facts in the record are sufficient to justify the actions of the
off-duty officer. 	In addition, given the inadequate challenge
mounted by Worwood, the State has adequately defended those
actions. 	Only by virtue of a careful analysis made for the first
time on appeal, and by the court at that, has Worwood finally
produced a meaningful challenge. 	The State, and the off-duty

No. 20060048 	24
officer, have been denied any opportunity to prove the
reasonableness of the actions taken by the failure of the
challenger to raise the questions now found to be so troubling by
my colleagues.
¶61 	Finally, I am troubled by the suggestion in the
majority opinion that the “benefits” of suppression of the field
sobriety tests against Worwood “clearly outweigh the social
costs.” 	This cost-benefit analysis appears to rely heavily on
two presumptions with which I do not agree: first, that not
suppressing the evidence of drunk driving in this instance would
create an incentive for law enforcement officers to knowingly
violate the law as embodied in the United States Constitution;
and second, that the consequences of repeat drunk driving are
preferred to those of the incentive our decision would create to
violate the law.
¶62 	In response, I believe the perverse incentive feared by
my colleagues is a fiction. 	I believe the suppression of
otherwise valid incriminating evidence against an accused wrong-
doer has little impact on police conduct. 	Those officers
genuinely devoted to the fair and reasonable application of the
law will do exactly as they do now: they will continue to seize
drugs found in transit, stop crimes in progress, and struggle to
understand and apply the myriad decisions of the various courts
restricting their scope of action. 	Those few, and I do believe
it is a very small minority of all law enforcement officers, who
knowingly violate the law in their efforts to enforce it, will
continue to do so, but with greater care in how it is reported
and recorded. 	Neither category of officer will be any more
likely to abide the law than they already were prior to our
decision today.
¶63 	In addition, I believe the scourge of death and
devastation brought to unsuspecting and innocent others by those
who choose to drive under the disabling influence of alcohol or
drugs is the greater social evil at issue in this case.
¶64 	Without regard to these beliefs and policy concerns, it
is my view that the law dictates a different result in this case
than that arrived at by my colleagues. 	To be perfectly clear: I
am not of the view that failings in Worwood’s initial suppression
motion lessen the State’s burden to prove the reasonableness of
the officer’s conduct. 	It is simply my view that the initial
burden falls upon the defendant to present to the trial court a
clearly articulated challenge, or to suffer the risks that his
challenge will be unsuccessful, as here. 	We require parties to
place their opponents and the court on notice of the boundaries

25 	No. 20060048
of the dispute. 	This is intended to assist the court in
identifying and making just and fully informed decisions.
Moreover, the proponent of the motion has the burden of proving
the factual predicate of the action sought. 	A proponent failing
to do so is not entitled to relief.
¶65 	I would affirm the court of appeals, the decision of
the trial court, and the conviction of Mr. Worwood.
---