2022 UT App 61

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

RACHEL NICOLE BEAMES,

Appellant.

Opinion

No. 20200699-CA

Filed May 12, 2022

Third District Court, West Jordan Department

The Honorable William K. Kendall

No. 191401971

Emily Adams and Benjamin Miller, 

Attorneys for Appellant

Simarjit S. Gill and Jennifer K. Zeleny, 

Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which 

JUDGE RYAN M. HARRIS concurred. JUDGE MICHELE M.

CHRISTIANSEN FORSTER dissented, with opinion. 

ORME, Judge:

¶1 Rachel Nicole Beames appeals her convictions for 

possession of a controlled substance and possession of drug 

paraphernalia. She argues that her trial counsel was ineffective for 

not seeking to suppress drug evidence located as a result of a 

drug-sniffing dog’s search of her vehicle. We agree and reverse.
State v. Beames

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BACKGROUND1

¶2 In April 2019, a police officer (Officer) saw a car “parked 

behind [a] Walmart in kind of a strange area where no one could 

see it.” Officer went to “observe” the car and noticed two people 

inside it, one of whom was Beames. He approached to speak with 

them. Officer asked for their identification, which they provided.

¶3 Officer then left, but a driver license check revealed both

licenses to be invalid, so Officer “pulled back around in the 

parking lot to make sure they didn’t leave and drive on invalid 

licenses.” At this point, Officer noted that Beames was in the 

driver’s seat. She then drove the car to a different spot in the 

parking lot, but Officer did not initiate a stop because Beames 

never left the parking lot. While performing further records 

checks on Beames and her passenger, who was later revealed to 

be her boyfriend (Boyfriend), Officer discovered that Boyfriend

“[h]ad been previously trespassed from all Walmarts 

worldwide.” Officer decided to investigate and again initiated

contact with Beames and Boyfriend. At some point, other officers 

arrived on the scene.

¶4 Officer “asked [Beames] to stay in the vehicle,” but he 

asked Boyfriend to exit the car, which Boyfriend did 

“voluntarily.” Beames then “stepped out of the vehicle as well”

after another officer (Handler Officer), who had also recently 

arrived on the scene with his drug-sniffing dog, “ha[d] her get out 

of the vehicle.” Dashcam footage of the encounter shows Beames 

and Boyfriend outside the vehicle. The doors of the vehicle were 

open, but the footage does not begin early enough to reveal how

or why the doors were left open. While Officer was talking to 

Boyfriend, and another officer was talking to Beames, Officer 

1. “On appeal, we recite the facts from the record in the light most 

favorable to the jury’s verdict and present conflicting evidence 

only as necessary to understand issues raised on appeal.” State v.

Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
State v. Beames

20200699-CA 3 2022 UT App 61

asked Handler Officer and his dog “if he’d perform a sniff of the 

vehicle.” Handler Officer then brought Timber, a drug-sniffing 

dog, to the “front driver’s side wheel” and, expecting only a 

perimeter sniff, gave Timber “the search command.” But Timber, 

while still on a leash and seemingly before he made any sort of 

alert or indication, “immediately jump[ed] in the car.” Although 

Handler Officer did not “tell him to do it,” Timber went “right on 

in there and he starts fiercely sniffing” and then exited the car on 

the passenger side. Timber was in the vehicle this first time for a 

total of only seven seconds. Handler Officer, standing near the 

driver’s side door where the dog had entered, then ordered 

Timber to “come here,” and Timber returned to the inside of the 

car through the passenger’s side door, whereupon Handler 

Officer shut the driver’s door. Handler Officer then moved 

around the car to the passenger’s side and stood by the open door 

looking into the car.

¶5 Timber, who was in the car for nearly a full minute this 

time, then indicated the possible presence of drugs, and Handler 

Officer thereafter searched the car. During this search, Handler 

Officer found a makeup box containing a glass pipe and 

methamphetamine in a compartment on the passenger’s side of 

the car. After Handler Officer announced what he found, Officer 

began to arrest Boyfriend. Beames asked why Boyfriend was 

being arrested and told Officer, “Whatever it is, it’s mine.” When 

Officer continued to arrest Boyfriend, she protested: “I’m telling 

you that it’s mine, so why are you still arresting him?” Officer 

responded that he was continuing with the arrest because he 

found the box by where Boyfriend’s feet would have been when 

he was seated in the car. Beames responded, “Wasn’t it in a 

women’s frickin’ eyelash thing?”

¶6 Due to Beames’s “relatively uncooperative” attitude and 

her statements that the box was hers, Officer also placed her under 

arrest. Officer then spoke with Beames further, and she stated that 

“she was aware of the items being in the car, however, they 

weren’t hers, she was just saying they were” to protect Boyfriend.
State v. Beames

20200699-CA 4 2022 UT App 61

¶7 The State charged Beames with possession of a controlled 

substance and possession of drug paraphernalia.2 Beames’s 

appointed counsel (Trial Counsel) did not seek to suppress the 

drug evidence found during the search, and after the court bound 

Beames over following a preliminary hearing, the case proceeded 

to trial. 

¶8 At trial, Officer and Handler Officer testified consistent 

with the facts previously laid out. The State also presented the 

dashcam footage from a police car showing Timber searching the 

car and bodycam footage in which the statements Beames made 

when Boyfriend was being arrested can be heard. Beames testified 

in her own defense. She stated that the drugs were not hers and

that she said that they were only to help Boyfriend, who was on 

parole at the time. She also testified that she “asked if the drugs 

were found in like an eyelash thingy or eyelash container” 

because her sister, who uses drugs, kept them in such a container 

and had driven the car earlier that day. Beames stated that she 

was unaware that her sister left drugs in the car.

¶9 The jury subsequently found Beames guilty as charged.

Beames appeals.

ISSUE AND STANDARD OF REVIEW

¶10 Beames asserts that Trial Counsel was ineffective for failing 

to seek suppression of the drug evidence as the fruit of an 

impermissible search under the Fourth Amendment. “When a 

claim of ineffective assistance of counsel is raised for the first time 

on appeal, there is no lower court ruling to review and we must 

decide whether the defendant was deprived of the effective 

2. There is no information in the record regarding any charges 

filed against Boyfriend.
State v. Beames

20200699-CA 5 2022 UT App 61

assistance of counsel as a matter of law.” Layton City v. Carr, 2014 

UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

ANALYSIS

¶11 An ineffective assistance of counsel claim requires a 

defendant to establish both that (1) “counsel’s performance was 

deficient” and (2) “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To 

establish deficient performance, i.e., that trial counsel’s actions 

“fell below an objective standard of reasonableness,” the 

defendant must overcome the “strong presumption that 

counsel’s conduct falls within the wide range of reasonable 

professional assistance.” Id. at 688–89. Indeed, “even if an [act or] 

omission is inadvertent and not due to a purposeful strategy, 

relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871

(quotation simplified). Instead, “even if a court concludes that 

counsel made an error, the ultimate question is always whether, 

considering all the circumstances, counsel’s acts or omissions 

were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,

462 P.3d 350.

¶12 To establish prejudice, “a defendant must present 

sufficient evidence to support a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Archuleta v. Galetka, 2011 UT 73, ¶ 40,

267 P.3d 232 (quotation simplified). “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” 

Strickland, 466 U.S. at 694. And when a defendant asserts that his 

counsel performed deficiently in failing to bring a Fourth 

Amendment claim, “in order to demonstrate actual prejudice,” 

the defendant “must also prove that his Fourth Amendment claim 

is meritorious and that there is a reasonable probability that the 

verdict would have been different absent the excludable evidence 

in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 

477 U.S. 365, 375 (1986).
State v. Beames

20200699-CA 6 2022 UT App 61

¶13 In Kimmelman, the United States Supreme Court did not 

specifically explain what it meant by “meritorious” in analyzing 

an ineffective assistance of counsel claim, but the structure of the 

quoted language suggests that “meritorious” does not mean that 

the claim was necessarily guaranteed to succeed. Rather, it 

suggests that the claim had enough merit to it to lead to the 

conclusion that there is “a reasonable probability that the verdict 

would have been different,” which is the ultimate inquiry under 

Strickland. Id. And a few years later, in Lockhart v. Fretwell, 506 U.S. 

364 (1993), Justice Stevens noted, “Kimmelman at one point refers 

to the necessity for a ‘meritorious’ Fourth Amendment claim,” 

which “represents no more than straightforward application of 

Strickland’s outcome-determinative test for prejudice.” Id. at 380 

n.6 (Stevens, J., dissenting). Justice Stevens then stated, 

Simply put, an attorney’s failure to make a Fourth 

Amendment objection will not alter the outcome of 

a proceeding if the objection is meritless, and hence 

would not be sustained. Nothing in Kimmelman 

suggests that failure to make an objection supported 

by current precedent, and hence likely to be sustained, 

would amount to anything less than ineffective 

assistance.

Id. (emphasis added). We agree with Justice Stevens’s view and 

determine that Kimmelman’s use of the word “meritorious” does 

not add an additional burden on a defendant to prove that the 

motion would certainly have been granted. We read it to 

simply mean that the defendant must show that the Fourth 

Amendment motion would likely have been successful, which is 

consistent with the “straightforward application of Strickland’s 

outcome-determinative test for prejudice.” Id.

¶14 This holding is also consistent with our Supreme Court’s 

reading of “meritorious” in Winward v. State, 2012 UT 85, 293 P.3d 

259, albeit in a slightly different ineffective assistance of counsel 

context. In that case, the Court addressed a threshold question of 
State v. Beames

20200699-CA 7 2022 UT App 61

whether a defendant’s ineffective assistance of counsel claim,

brought pursuant to the Post-Conviction Remedies Act, contained 

“a meritorious defense” necessary to meet an exception to certain 

procedural requirements contained in the Act. Id. ¶ 18. The Court 

noted that “[t]o establish a meritorious defense based on the 

ineffective assistance of counsel,” the defendant does not bear the 

additional burden to prove that the defense certainly would have 

succeeded, but rather the defendant simply had “to prove both 

that he received deficient performance from his trial counsel, and 

that this deficient performance prejudiced the outcome of his 

trial.” Id. ¶ 22. This framework is consistent with Utah’s 

ineffective-assistance jurisprudence, which does not require that 

a defendant pursuing an ineffective assistance claim establish that 

the outcome would certainly have been different, but only that 

there is “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different.” Archuleta, 2011 UT 73, ¶ 40 (emphasis added) 

(quotation otherwise simplified).

¶15 Finally, this understanding of “meritorious” is consistent 

with the term’s use in other contexts, where it does not mean a 

sure winner but only something with a solid basis in the facts and 

law. See Gillman v. Gillman, 2021 UT 33, ¶ 41, 493 P.3d 655 (noting 

that a “meritorious defense,” as part of an analysis of whether a 

district court should have set aside a default judgment for good 

cause under rule 55 of the Utah Rules of Civil Procedure, is a 

defense that “is good at law so as to give the factfinder some 

determination to make” and “does not mean the court must 

consider whether the defendant will ultimately succeed on the 

merits”) (quotation simplified); Menzies v. Galetka, 2006 UT 81, 

¶ 108, 150 P.3d 480 (holding that in the context of a motion to set 

aside judgment under rule 60(b) of the Utah Rules of Civil 

Procedure, “a defense is sufficiently meritorious if . . . it is entitled

to be tried”) (emphasis added) (quotation otherwise simplified); 

Bresee v. Barton, 2016 UT App 220, ¶ 49, 387 P.3d 536 (stating that 

in the context of bad-faith attorney fees awarded by statute, 

meritorious claims are those that contain both “a factual basis”
State v. Beames

20200699-CA 8 2022 UT App 61

and “a theoretical basis in law for those claims”) (emphasis added) 

(quotation otherwise simplified).

¶16 In this case, Beames asserts that Trial Counsel was 

ineffective for not seeking to suppress the drug evidence found in 

the car because the search of her car was constitutionally 

impermissible. Specifically, she contends that because Timber

“did not have probable cause to enter the car, this search violated 

the Fourth Amendment, and the fruits from that search . . . should 

have been suppressed.”

¶17 Because Beames presents her claim in the context of an 

ineffective assistance of counsel claim, and cannot directly 

challenge the admission of the evidence, we must first analyze, 

based on the record before us, whether a motion to suppress the 

evidence on Fourth Amendment grounds appears meritorious.3

3. Because Trial Counsel never filed a motion to suppress, we do 

not have the benefit of testimony from an expert on drug-sniffing 

dogs regarding when and how they alert to or indicate the 

presence of drugs. Rather, we have only Handler Officer’s 

testimony from the preliminary hearing and from trial that 

explains how Timber alerts or indicates, but not in the same detail 

typical of such cases. See State v. Ruiz, 2021 UT App 94, ¶¶ 7–15, 

497 P.3d 832. Thus, on this record, we cannot say with certainty 

that a motion to suppress would have succeeded because we do 

not know what other evidence might have been presented if Trial 

Counsel had moved to suppress the evidence in a timely fashion. 

The dissent latches on to this and asserts, “Even though we have 

testimony from Handler Officer about Timber’s alerts and a 

general description of Timber’s actions during the sniff, Handler 

Officer was never asked if Timber alerted during his first entry

into the vehicle,” and it is not “this court’s place to presume that 

constitutional error occurred merely because there is no definitive 

evidence on the particular factual issue that is determinative 

here.” See infra ¶ 43. The dissent then posits that, “[a]ccordingly, 

(continued...)
State v. Beames

20200699-CA 9 2022 UT App 61

We proceed in this manner because if the motion would have 

failed in any event, Beames has no ground to complain that Trial 

Counsel was ineffective for failing to bring it. See State v. Makaya, 

2020 UT App 152, ¶ 9, 476 P.3d 1025 (“A futile motion necessarily 

fails both the deficiency and prejudice prongs of the Strickland

it was Beames’s obligation to provide an adequate record on 

appeal to demonstrate that Timber did not quickly alert when he

first entered the vehicle to show that she would have prevailed 

had a motion to suppress been filed.” See infra ¶ 44.

 First, we disagree with the dissent’s characterization of the 

record as inadequate. Here, we have the dashcam video as well as 

Handler Officer’s testimony and, while it is true that Handler 

Officer’s testimony was not given in the context of a motion to 

suppress, his testimony (supplemented by the video) did detail, 

rather specifically, the actions Timber took and his eventual alert. 

And it seems unlikely that Handler Officer would speak in terms 

of Timber alerting only when he re-entered the car if, in Handler 

Officer’s judgment, he alerted during his brief initial entry as well. 

Experience suggests that a drug-sniffing dog’s handler who 

effected a successful search for drugs would routinely want to 

establish that he had probable cause to support the search at the 

earliest possible point in time. Second, we do not “presume that 

constitutional error occurred,” as the dissent asserts. Rather, we 

simply determine that Beames has shown, based on the adequate 

record before us—a record that contains Handler Officer’s clear 

testimony that Timber alerted only when he entered the car the 

second time and video footage that supports that assertion—that 

a Fourth Amendment claim here was reasonably likely to have

succeeded. This is a far cry from presuming constitutional error 

and is in line with the framework of an ineffective assistance of 

counsel claim, under which we do not need to say for certain that 

the motion would have succeeded. In this context, it is sufficient 

to determine that the motion appears meritorious, i.e., that it was 

“likely to be” granted, see Lockhart v. Fretwell, 506 U.S. 364, 380 n.6 

(1993) (Stevens, J., dissenting) (emphasis added); supra ¶¶ 13–15,

and that Trial Counsel was unreasonable in not pursuing it.
State v. Beames

20200699-CA 10 2022 UT App 61

analysis because it is not unreasonable for counsel to choose not

to make a motion that would not have been granted, and forgoing

such a motion does not prejudice the outcome.”). See also

Kimmelman, 477 U.S. at 375 (noting a defendant asserting 

ineffective assistance of counsel for counsel’s failure to bring a 

Fourth Amendment claim must “prove that his Fourth 

Amendment claim is meritorious”). But even if the motion 

appears meritorious, it does not automatically follow that counsel 

was ineffective for not pursuing it. Rather, we must then “assess 

whether counsel may have had a sound strategic reason for not”

moving to suppress, mindful that we “must always base [our] 

deficiency determination on the ultimate question of whether 

counsel’s act or omission fell below an objective standard of 

reasonableness.” State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871. See

State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350 (“[T]he ultimate 

question is always whether, considering all the circumstances, 

counsel’s acts or omissions were objectively unreasonable.”).

I. Timber’s Search

¶18 The Fourth Amendment protects “an individual’s right 

against unreasonable searches and seizures,” State v. Rigby, 2016 

UT App 42, ¶ 7, 369 P.3d 127, safeguarding “[t]he right of the 

people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures” by the government, 

U.S. Const. amend. IV. And “because warrantless searches are per 

se unreasonable, police officers generally need a warrant to search 

a place in which a person has a reasonable expectation of 

privacy.” Rigby, 2016 UT App 42, ¶ 8 (quotation simplified).

¶19 “There are, of course, exceptions to the general rule, one of 

which is the so-called automobile exception.” Id. (quotation 

simplified). This exception permits police officers to search an 

automobile if it “is readily mobile and probable cause exists to 

believe it contains contraband.” Pennsylvania v. Labron, 518 U.S. 

938, 940 (1996). And as relevant to the case at hand, because “[a]

drug dog is an instrumentality of the police,” its actions in 
State v. Beames

20200699-CA 11 2022 UT App 61

searching vehicles are also “governed by the Fourth 

Amendment.” United States v. Pulido-Ayala, 892 F.3d 315, 318 (8th 

Cir. 2018). Nonetheless, “a drug-trained dog may walk the 

perimeter of a lawfully detained vehicle even if police have no 

reasonable suspicion that the vehicle occupants are engaged in 

drug-related activity so long as the dog sniff search does not 

extend the duration of the stop.”4 State v. Baker, 2010 UT 18, ¶ 29, 

229 P.3d 650 (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)). But

if a dog enters a vehicle “prior to the establishment of probable 

cause,” its subsequent search “may raise Fourth Amendment 

concerns because people have a reasonable expectation of privacy 

in the interior of their automobiles.” State v. Ruiz, 2021 UT App 

94, ¶ 19, 497 P.3d 832 (quotation simplified). A drug dog entering 

a vehicle without probable cause, however, is not a per se 

violation of the Fourth Amendment. Rather, if a drug dog enters 

a vehicle before probable cause is established, its ensuing search 

of the vehicle can be permissible under the Fourth Amendment if 

“(1) the dog’s leap into the car was instinctual rather than 

orchestrated and (2) the officers did not ask the driver to open the 

point of entry, such as a hatchback or window, used by the dog.” 

Id. ¶ 20 (quoting United States v. Vazquez, 555 F.3d 923, 930 (10th 

Cir. 2009)).

¶20 These two considerations go hand in hand. “First, 

‘instinctive’ implies the K-9 enters the car without assistance, 

facilitation, or other intentional action by its handler.” Id. ¶ 21

(quotation simplified). “A drug-sniffing dog’s instinctive actions 

do not violate the Fourth Amendment where there is no evidence 

that the police asked a suspect to open the vehicle so the dog could 

jump in or any evidence the police handler encouraged the dog to 

jump in the car.” Id. (quotation simplified). Second, how the dog’s 

access point came to be open to allow for the dog’s entry is also 

relevant. For example, “the fact that the passenger window of the 

vehicle is open, creating an opportunity for the dog to breach the 

4. Beames does not contend that Timber’s search extended the 

duration of the encounter.
State v. Beames

20200699-CA 12 2022 UT App 61

interior of the vehicle, does not render a search unlawful,

provided that the officer does not open the window, order the 

window be opened, or order the window to remain open.” Id. ¶ 22 

(quotation simplified). But if the officer orchestrates the opening 

of a point of entry to create “the opportunity for a drug-sniffing 

K-9 to enter a vehicle, that entry violates the Fourth Amendment 

because the officer facilitated the K-9 sniff of the vehicle’s

interior.” Id. (quotation simplified).

¶21 Therefore, we first consider whether there was probable 

cause even before Timber initially entered the car that would have 

allowed Timber’s entry. Holding that there was no probable cause

at the outset, we then consider whether Timber’s actions while in 

the car the first time—given that it is fairly obvious Timber’s first 

entry was instinctual and not directed by Handler Officer—

provided probable cause for Timber to re-enter the car. 

Concluding that, based on the record before us, Timber’s actions 

while in the car the first time do not appear to have provided

probable cause, we next consider whether Timber instinctually

re-entered the car or was directed to re-enter by Handler Officer.

We then hold that Timber did not instinctually re-enter the car on 

the occasion when he indicated the presence of drugs, and on this 

basis alone, there is a reasonable probability that the search was 

unconstitutional. See United States v. Ayala, 446 F. App’x 78, 80 

(10th Cir. 2011) (“Officers may not, however, rely on a dog’s alert

. . . if they encourage the dog to enter [the vehicle].”).

A. Probable Cause

¶22 “Determinations of whether probable cause exists require 

a common sense assessment of the totality of the circumstances 

confronting the arresting or searching officer. Probable cause is

more than suspicion but less than certainty.” State v. Spurgeon, 904 

P.2d 220, 226 (Utah Ct. App. 1995) (internal citation omitted).

¶23 Here, there was no probable cause at the outset that 

permitted the officers to search the interior of the car because they
State v. Beames

20200699-CA 13 2022 UT App 61

had no reason to believe that a search would uncover contraband 

or evidence of a crime.

5 See Pulido-Ayala, 892 F.3d at 318 (“Police 

ordinarily cannot search the interior of an automobile unless they 

have probable cause to believe that the vehicle contains 

contraband or other evidence of a crime.”). Officer initially 

investigated the car because it was in “a strange area where no 

one could see it.” After interacting with Beames and Boyfriend, 

Officer discovered that both their driver licenses were invalid,

and he “pulled back around in the parking lot to make sure they 

didn’t leave and drive on invalid licenses.” Officer then initiated 

contact again after he discovered that Boyfriend “[h]ad been 

previously trespassed from all Walmarts worldwide” and, given 

their proximity to a Walmart, he decided to investigate. There is 

no hint in any of this that Officer reasonably suspected the 

presence of illegal drugs in the car.

¶24 Instead, the record established that Officer investigated

only because both occupants of the car had invalid driver licenses 

and Boyfriend might have been trespassing at Walmart. This 

contrasts with Utah appellate decisions holding, for example, that 

police had probable cause to search for drugs because there 

were drugs or paraphernalia in open view, see State v. Gurule, 2013 

UT 58, ¶ 30, 321 P.3d 1039 (“Because [the officer] did not perform 

5. The State contends that there is an “absence of evidence” 

regarding whether probable cause existed at the outset. 

Consequently, the State asserts, Beames “cannot overcome the 

strong presumption that Trial Counsel acted reasonably.”

Although this is a sound legal concept, it simply does not apply 

here. There is plenty of evidence before us on which we can base 

an assessment about whether the officers had probable cause at 

the outset. We have the testimony of both officers and video 

footage of the search. Officer testified about his reasoning for 

investigating, and Handler Officer testified in detail about the 

actions of Timber. Thus, between that testimony and the video, 

there is clearly enough record evidence for us to evaluate whether 

there was probable cause to support a search from the outset.
State v. Beames

20200699-CA 14 2022 UT App 61

an invasive search of the vehicle, but rather only looked at 

what he could see in plain-view, his plain-view search was 

proper.”), or because a scent of drugs was present, see State v.

Wright, 1999 UT App 86, ¶ 10, 977 P.2d 505 (“It is undisputed here 

that [the officer] smelled marijuana before he searched. That 

fact alone gave him probable cause to search[.]”). There was 

nothing of the kind in this case to suggest that the car contained 

evidence that a drug offense “has been or is being committed.” See

State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986) (quotation 

simplified).

¶25 Additionally, the record before us contains no indication 

that Timber’s initial behavior outside the car could have supplied 

probable cause for officers to search the inside of the car. When 

Timber was given a command to search the exterior perimeter,

he did not alert to or indicate the presence of drugs before he 

entered the car for the first time. Rather, he almost immediately 

jumped into the vehicle on his own instinct and not as 

commanded. Cf. United States v. Vazquez, 555 F.3d 923, 929–30 

(10th Cir. 2009) (holding that, because a drug dog first alerted on 

the outside of the car to the presence of drugs, its entry and 

discovery of drugs inside the car did not violate the Fourth 

Amendment).

¶26 This is not the end of our probable cause analysis, however, 

because the State contends that even if the officers did not have 

probable cause at the outset, Timber instinctually entered the car 

the first time and then gave an “earl[y] indication” to the presence 

of drugs. This, the State posits, provided Handler Officer with 

probable cause to direct Timber to re-enter the car. The State bases 

this argument on Handler Officer’s preliminary hearing 

testimony, asserting that his testimony proves that Timber gave 

an alert or indication the first time he was in the car. We disagree. 

Based on our review of Handler Officer’s preliminary hearing 

testimony, his trial testimony, and the dashcam footage, the 

record before us contains no evidence that Timber alerted to or 

indicated the presence of drugs until after he re-entered the car. 
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20200699-CA 15 2022 UT App 61

¶27 At trial, Handler Officer testified that Timber alerts to 

drugs by doing a “head check a couple of times,” moving his head 

back and forth and “working his way into his scent.” Handler 

Officer also testified that he taught Timber “his indication, which 

is his final response,” and which Timber provides in a “passive” 

manner by “sit[ting] down” or by “star[ing] at the source of the 

odor.” Handler Officer then testified, with our emphasis, that 

when he gave Timber the command to search the exterior of the 

car, Timber “immediately jump[ed] in the car” and “start[ed] 

fiercely sniffing.” Timber then promptly exited the car and, only 

after Handler Officer instructed him to return, did Timber come

“back on in the . . . passenger side” and “[a]t this point . . . he’s now 

sitting in a positive indication.” At the preliminary hearing, 

Handler Officer testified that he “started [Timber] on a front 

driver side fender. He pulled me into the car, and I had to drop 

his leash he went into the car so fast. At that point, I went around 

to the passenger side to get him and he was sitting in a positive 

indication on the passenger floorboard.” This testimony, when 

combined with the dashcam footage showing Timber leaving the 

car seven seconds after first entering—with Handler Officer 

coming to the passenger side only after Timber re-entered the 

car—and Timber then lingering some fifty-one seconds on his 

second entry, provides enough evidence that Timber indicated 

the drugs only on his second entry into the car, and not his first.

This is consistent with Handler Officer’s trial testimony that it was 

when Timber came “back on in the . . . passenger side” that 

Timber sat “in a positive indication.” Thus, nothing in the record 

before us supports the notion that Handler Officer had probable 

cause to direct Timber back into the car based on any sort of alert 

or indication during Timber’s first entry.

¶28 Having apparently not indicated or alerted during his first 

entry into the car, the only act Timber did here that might bear on

probable cause was to “fiercely sniff[]” for drugs. This, however, 

did not provide probable cause because, based on Handler 

Officer’s testimony, fiercely sniffing is not how Timber alerts to or 

indicates drugs. For probable cause to be established based on a 
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20200699-CA 16 2022 UT App 61

drug dog’s search, the dog must alert or indicate—fiercely 

sniffing is not enough. See State v. Perkins, 2019 UT App 117, ¶ 21, 

446 P.3d 145 (holding that “the dog alert on the truck . . . 

established probable cause”) (emphasis added); United States v.

Parada, 577 F.3d 1275, 1282 (10th Cir. 2009) (“Our other dog alert 

cases do not specify whether the dog’s response was a general 

alert or a final indication; we have simply noted that the dog’s 

‘alert’ provides probable cause.”); Vazquez, 555 F.3d at 929 (“Once 

[the drug dog] alerted to the vehicle’s front and rear bumpers, the 

officers had probable cause to search the car and its contents.”) 

(emphasis added). If we were to hold otherwise, we would 

impermissibly expand justification for warrantless searches of 

automobiles simply because a drug-sniffing dog is brought in and 

begins to sniff vigorously for drugs—which, of course, is part of 

its job description—but does not alert or indicate.

B. Timber’s Re-entry Into the Car

¶29 Beames asserts that Handler Officer’s “words and actions 

facilitated the dog’s search inside the car” and he “encourag[ed] 

the dog to re-enter the car.” We agree.6

6. For purposes of our analysis, we assume that Timber’s initial 

entry into the vehicle was instinctual and not facilitated by the 

officers. But because Timber left the car in seven seconds and did 

not appear to alert to or indicate the presence of drugs during his 

brief first entry, this instinctual leap does not render the eventual 

discovery of drugs in this case permissible because the re-entry 

now becomes the critical point in the analysis. Thus, we view 

Timber’s initial exit from the vehicle as a break requiring a restart 

of the analysis to determine whether Timber’s re-entry was 

instinctual rather than orchestrated. If we were to hold otherwise, 

a drug dog could instinctually enter a vehicle and not alert or 

indicate, then exit and be ready to be placed back in its kennel 

only for the handling officer to have second thoughts and direct

(continued...)
State v. Beames

20200699-CA 17 2022 UT App 61

¶30 Here, after first entering the car and “fiercely sniffing,” 

Timber exited the car in seven seconds, without appearing to alert

or indicate, and he seemed to be headed around the back of the 

car to reunite with Handler Officer. But Handler Officer altered 

that chain of events. Handler Officer, who was still standing on 

the driver’s side of the car, ordered Timber to “come here.”

Timber complied with that command by re-entering the car via 

the open passenger door. Once Timber re-entered the car, Handler 

Officer closed the driver’s door and moved to stand beside the 

open passenger’s door, effectively confining Timber in the car for 

Timber to conduct a search. After this re-entry, with Timber 

remaining in the car for nearly a minute, Timber indicated the 

presence of drugs. 

¶31 Because Timber’s second entry into the car was 

orchestrated by Handler Officer, who directed Timber back into 

the car and blocked his exit, Timber’s re-entry into the car cannot 

be considered instinctual. Thus, Timber’s presence in the car

needed to be justified by probable cause to search the car, and here 

it was not. Accordingly, the officers’ search of the vehicle, 

facilitated by Timber’s nose, was contrary to constitutional 

principles. See State v. Ruiz, 2021 UT App 94, ¶ 20, 497 P.3d 832; 

United States v. Ayala, 446 F. App’x 78, 80 (10th Cir. 2011) (holding 

the dog back into the vehicle to continue sniffing for drugs. If the 

dog then alerted to or indicated drugs during this second attempt, 

in this hypothetical scenario that search would be allowed. This 

conclusion, however, would run afoul of the Fourth Amendment. 

The dog’s failure to alert to or indicate drugs after instinctually 

entering the vehicle the first time would fail to provide probable 

cause and, without probable cause, the dog could re-enter only so 

long as it did so instinctually again and not at the behest of its 

handler. See State v. Ruiz, 2021 UT App 94, ¶ 20, 497 P.3d 832. 

Thus, we hold that when a drug dog enters a vehicle instinctively, 

but then exits on its own accord without alerting to or indicating 

drugs, any re-entry must be analyzed anew.
State v. Beames

20200699-CA 18 2022 UT App 61

that without probable cause, a drug dog’s search is impermissible 

if officers “encourage the dog to enter” the vehicle).

C. Conclusion

¶32 In summary, based on the record before us, a motion to 

suppress the evidence discovered in the vehicle appears 

meritorious—that is, it would have had a reasonable likelihood of 

success. The record contains no indication that the officers had

probable cause at the outset or during Timber’s first entry into the 

car and, as a result, for the search following Timber’s re-entry to 

be permissible, Handler Officer must not have orchestrated it and 

Timber’s re-entry into the car must have been purely instinctual. 

In this instance, that was clearly not the case: Timber’s second 

entry into the vehicle was orchestrated by Handler Officer, who 

encouraged Timber to re-enter the car, whereupon Handler 

Officer shut the driver’s side door to keep Timber in the car to 

search for drugs.

II. Ineffective Assistance of Counsel

¶33 Having determined that, based on the record before us, a 

motion to suppress appears meritorious, we must now determine 

if Trial Counsel rendered ineffective assistance in not filing such 

a motion. We readily hold that Trial Counsel’s performance was 

deficient and that this prejudiced Beames.

¶34 Here, the drug evidence was the only tangible evidence the 

State presented of Beames’s guilt, and had it been suppressed, the 

State would have undoubtedly dismissed the charges against her. 

Thus, there was not “a sound strategic reason for not [moving to 

suppress],” see State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871, and

reasonable counsel would have done so because it was Beames’s 

only realistic chance to avoid a conviction, cf. State v. Bell, 2016 UT 

App 157, ¶ 23, 380 P.3d 11 (holding that counsel was ineffective

for not making a “risk-free” merger motion that would have 

succeeded “under [the] correct application of the law”). By not 
State v. Beames

20200699-CA 19 2022 UT App 61

doing so, Trial Counsel “made errors so serious that counsel was 

not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” See Strickland v. Washington, 466 U.S. 668, 687

(1984).

¶35 The State argues that Trial Counsel could have acted 

reasonably in not moving to suppress the evidence because 

Boyfriend was on parole at the time. Citing Utah Code section

77-23-301, the State contends that because the law “permit[s] 

warrantless searches of residences, vehicles, and personal effects 

of persons on parole without probable cause,” Trial Counsel

could have reasonably not moved to suppress on the basis that 

the State would have responded that Boyfriend’s parole status 

allowed a suspicionless search.7 As explained below, this 

argument is unavailing. 

¶36 When analyzing whether police conduct is appropriate 

under the Fourth Amendment, we review the facts objectively 

and do not consider the subjective intent of the officers. Whren v.

United States, 517 U.S. 806, 814 (1996). This does not mean, 

however, when defending a later challenge to a search, that the 

State is allowed to concoct any reason whatsoever to justify the 

search. Rather, the justification for the search “depends upon the 

reasonable conclusion to be drawn from the facts known to the 

arresting officer at the time” of the search, Devenpeck v. Alford, 543 

U.S. 146, 152 (2004) (emphasis added), and “the Government 

cannot rely upon post hoc rationalizations to validate those 

seizures that happen to turn up contraband,” United States v.

Foster, 634 F.3d 243, 249 (4th Cir. 2011). See also United States v.

Martinez-Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose of 

the Fourth Amendment “is to prevent hindsight from coloring the 

evaluation of the reasonableness of a search or seizure”); United

7. In so asserting, the State glosses over the fact that the car did 

not belong to Boyfriend and that no “effects” were searched other 

than a makeup box that the officers apparently did not believe 

was tied to Boyfriend once Beames spoke up. 
State v. Beames

20200699-CA 20 2022 UT App 61

States v. Hughes, 606 F.3d 311, 316 (6th Cir. 2010) (holding that 

“police officers may not look for after-the-fact justifications for 

stops that would otherwise be impermissible; following a stop, 

the government should not begin poring through state and local 

traffic ordinances looking for any that a suspect might have 

violated”); Clark v. Coleman, 448 F. Supp. 3d 559, 569–70 (W.D. Va. 

2020) (declining to consider the officer’s “post hoc rationalization” 

for the traffic stop and subsequent search because it could not “be 

squared with the evidence presented”). 

¶37 On the record before us, there is no indication that either 

Officer or Handler Officer knew about Boyfriend’s parole status 

before they conducted the search.8 In fact, had they known about 

his status, and if ownership of the car and makeup kit are as 

inconsequential as the State posits, see supra note 7, they 

presumably would have just searched the car without bothering 

to bring in a drug dog. But Officer’s reason for undertaking the

investigation was based on Boyfriend being trespassed from all 

Walmarts worldwide and both occupants of the vehicle having

8. On cross-examination, Handler Officer testified that he had 

previously been a corrections officer at the state prison and knew 

Boyfriend from the time he spent there. Trial Counsel then asked 

him if Boyfriend “explain[ed] to you that he was on parole at the 

time,” and Handler Officer replied, “I believe so, yes.” But 

comparing Officer’s testimony with the dashcam footage, it is 

clear that Handler Officer discovered Boyfriend’s parole status 

after he and Timber searched the car. Officer testified that he was 

the one who asked Boyfriend to exit the car and while he was 

“speaking with [Boyfriend], we had [Handler Officer] nearby, and 

I asked if he’d perform a sniff of the vehicle.” This is consistent 

with the video footage as well, which shows Officer talking with 

Beames while Handler Officer and Timber are searching the car. 

Thus, any conversation between Handler Officer and Boyfriend 

in which Handler Officer became aware of Boyfriend’s parole 

status occurred after the search and cannot be used as a 

justification for the search.
State v. Beames

20200699-CA 21 2022 UT App 61

suspended driver licenses—not Boyfriend’s then-unknown status 

as a parolee. Based on the objective facts existing at the time of the 

search, the search could not therefore be justified on the post hoc 

rationalization that Boyfriend was a parolee. Because Boyfriend’s 

parole status was not known to the officers at the time of the 

search, reasonable counsel would not have forgone a motion to 

suppress on that basis.

¶38 Finally, determining prejudice in this case is a simple 

exercise. Even the dissent acknowledges that, had a motion to 

suppress been filed and granted, the State’s main piece of 

evidence would have been inadmissible, and Beames likely 

would not have been convicted. See infra note 10. We conclude 

that a motion to suppress would have been meritorious. Had 

counsel filed such a motion, there is a reasonable likelihood that 

it would have been granted and that there would have been a 

different outcome in this case. See Strickland, 466 U.S. at 694.

CONCLUSION

¶39 Trial Counsel provided ineffective assistance when she 

failed to file a motion to suppress the drug evidence. We vacate 

Beames’s convictions and remand for further proceedings

consistent with this opinion.

CHRISTIANSEN FORSTER, Judge (dissenting):

¶40 I agree with the majority that certified drug-sniffing K9 

Timber’s initial entry into Beames’s vehicle was instinctual,9 but 

9. Beames also argues that the police officers unconstitutionally 

facilitated Timber’s entry into the vehicle because the officers 

opened the doors of the vehicle and left them open to allow 

Timber to jump in. But there is no record evidence that explains 

(continued...)
State v. Beames

20200699-CA 22 2022 UT App 61

because I disagree that Beames has met her burden to prove that 

a motion to suppress would have succeeded, I respectfully 

dissent. As articulated by the majority, to prevail on her 

ineffective assistance of counsel claim, Beames must satisfy the 

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 

(1984). See Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232. She 

must first establish that, despite the strong presumption that trial 

counsel acted competently and that the challenged action was the 

product of sound trial strategy, counsel’s representation “fell 

below an objective standard of reasonable professional judgment” 

such that he or she was not functioning as the counsel guaranteed 

by the Sixth Amendment. See id. (quotation simplified). Second, 

Beames must also establish prejudice because “[a]n error by 

counsel . . . does not warrant setting aside the judgment of a 

criminal proceeding if the error had no effect on the judgment.” 

how Beames’s car doors came to be open or to prove that the 

officers intentionally left the doors open to facilitate the K9 sniff. 

And as explained in this dissent, Beames bears the burden to 

demonstrate the record adequately supports her claim of 

ineffective assistance, and the absence of evidence cannot support 

such a determination. While “interior sniffs may become 

constitutionally infirm in the event that the interior sniff is 

accomplished or facilitated by the officer-handler,” a dog’s 

instinctual behavior does not violate the Fourth Amendment 

where the canine acts “on its own initiative and is neither 

encouraged nor placed into the vehicle by law enforcement.” 

United States v. Sharp, 689 F.3d 616, 619–20 (6th Cir. 2012) 

(quotation simplified); see also United States v. Pierce, 622 F.3d 209, 

214 (3d Cir. 2010) (applying the “considerable body of 

jurisprudence” to conclude that the dog’s sniffs around the 

interior of the vehicle did not violate the Fourth Amendment 

where the handler neither caused nor directed the dog to sniff); 

United States v. Winningham, 140 F.3d 1328, 1331 & n.2 (10th Cir. 

1998) (finding a constitutional violation where the police officer 

opened the vehicle and thus “facilitated” the dog’s intrusion into 

the interior).
State v. Beames

20200699-CA 23 2022 UT App 61

Strickland, 466 U.S. at 691. Thus, the burden is on Beames to 

demonstrate a reasonable probability that the outcome of her case 

would have been different absent counsel’s error. See State v. 

Garcia, 2017 UT 53, ¶¶ 34–38, 424 P.3d 171. “A reasonable 

probability is a probability sufficient to undermine confidence in 

the outcome” of the proceeding. Strickland, 466 U.S. at 694.

¶41 Here, where Beames’s ineffectiveness claim is based on 

counsel’s decision not to file a suppression motion, she must 

demonstrate her counsel performed deficiently and that she was 

prejudiced by showing that she would have prevailed on the 

unargued suppression motion and that there is a reasonable 

probability that a successful motion would have affected the 

outcome of the trial. See Kimmelman v. Morrison, 477 U.S. 365, 375 

(1986) (“Where defense counsel’s failure to litigate a Fourth 

Amendment claim competently is the principal allegation of 

ineffectiveness, the defendant must also prove that his Fourth 

Amendment claim is meritorious and that there is a reasonable 

probability that the verdict would have been different absent the 

excludable evidence in order to demonstrate actual prejudice.”); 

see also State v. Martinez-Castellanos, 2018 UT 46, ¶ 45, 428 P.3d 1038 

(“A trial counsel’s failure to file a . . . motion to suppress can only 

cause harm to a defendant when the motion would have been 

successful had the [motion] been filed.”).10 This normally requires 

a counterfactual analysis exploring what might have been if 

counsel had raised and fully litigated the suppression issue to 

conclusion.

¶42 The majority determines that because we have in the 

record on appeal the testimony of Handler Officer from the 

preliminary hearing and the trial and the video footage of the 

10. I agree with the majority that if a suppression motion had been 

meritorious and the evidence of the controlled substances found 

in Beames’s vehicle excluded, a reasonable probability exists that 

the trial outcome would have been different because most likely 

there never would have been a trial at all. See supra ¶ 38.
State v. Beames

20200699-CA 24 2022 UT App 61

search of Beames’s vehicle, “[t]here is plenty of evidence before 

us on which we can base an assessment about whether the officers 

had probable cause.” Supra note 5. Unlike the majority, however, 

I do not believe the record in this case contains the information 

necessary to fully address and resolve Beames’s contention that 

Timber did not quickly alert or indicate the presence of drugs 

until after the dog re-entered the vehicle. It is true that Handler 

Officer never specifically labeled Timber’s immediate jump into 

the vehicle and fierce sniffing on “the center console wheel area 

of the passenger side” as an alert sufficient to establish probable 

cause to justify further sniffing and a search, but Handler Officer 

was never asked that specific question and did not testify that 

what Timber did was not an alert. Since there was no motion to 

suppress filed, the focus at the preliminary hearing and at trial 

was not whether officers had probable cause to search based upon 

Timber’s alert to the presence of drugs in the vehicle; rather, the 

focus at trial was whether the State could prove that Beames was 

knowingly in possession of a controlled substance and 

paraphernalia. See Florida v. Harris, 568 U.S. 237, 248 (2013) (“The 

question—similar to every inquiry into probable cause—is 

whether all the facts surrounding a dog’s alert, viewed through 

the lens of common sense, would make a reasonably prudent 

person think that a search would reveal contraband or evidence 

of a crime. A sniff is up to snuff when it meets that test.”). In 

addition, because Timber cannot be seen in the video after he 

jumps into the vehicle, nobody just watching the dashcam video 

of Timber’s seven seconds in the vehicle can definitively 

determine, without further explanation from Handler Officer, 

that Timber’s fierce sniffing was something different from his 

alert when “[h]e closes his mouth real tight and he starts breathing 

in real heavy because he starts getting excited.”

¶43 And because it is Beames’s burden on appeal to 

demonstrate that a suppression motion “would have been 

successful,” see Martinez-Castellanos, 2018 UT 46, ¶ 45, the absence 

of evidence cannot be used to support her claim, see, e.g., People v. 

Burnett, 128 N.E.3d 1094, 1098 (Ill. App. Ct. 2019) (rejecting the 
State v. Beames

20200699-CA 25 2022 UT App 61

defendant’s “attempt[] to spin the lack of testimony about 

probable cause into a conclusion that there was no probable 

cause” (quotation simplified)). “[W]here, on direct appeal, [a] 

defendant raises a claim that trial counsel was ineffective . . . , [the] 

defendant bears the burden of assuring the record is adequate.” 

State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92. Further, if “the 

record appears inadequate in any fashion, ambiguities or 

deficiencies resulting therefrom simply will be construed in favor 

of a finding that counsel performed effectively.” Id. ¶ 17; see also 

State v. Penman, 964 P.2d 1157, 1162 (Utah Ct. App. 1998) (“When 

a defendant raises an ineffective assistance claim for the first time 

on appeal, the claim will be reviewed only if the . . . record is 

adequate to permit decision of the issue.” (quotation simplified)). 

Though the issue was different from the issue presented here, the 

United States Supreme Court’s decision in Massaro v. United 

States, 538 U.S. 500 (2003), is instructive in this situation:

When an ineffective-assistance claim is brought on 

direct appeal, appellate counsel and the court must 

proceed on a trial record not developed precisely for 

the object of litigating or preserving the claim and 

thus often incomplete or inadequate for this 

purpose. Under Strickland v. Washington, . . . a 

defendant claiming ineffective counsel must show 

that counsel’s actions were not supported by a 

reasonable strategy and that the error was 

prejudicial. The evidence introduced at trial, 

however, will be devoted to issues of guilt or 

innocence, and the resulting record in many cases 

will not disclose the facts necessary to decide either 

prong of the Strickland analysis. If the alleged error 

is one of commission, the record may reflect the 

action taken by counsel but not the reasons for it. 

The appellate court may have no way of knowing 

whether a seemingly unusual or misguided action 

by counsel had a sound strategic motive or was 
State v. Beames

20200699-CA 26 2022 UT App 61

taken because the counsel’s alternatives were even 

worse.

Id. at 504–05. Even though we have testimony from Handler 

Officer about Timber’s alerts and a general description of 

Timber’s actions during the sniff, Handler Officer was never 

asked if Timber alerted during his first entry into the vehicle, nor 

do I think the video substantiates any lack of alert. As such, I do 

not think it is this court’s place to presume that constitutional 

error occurred merely because there is no definitive evidence on 

the particular factual issue that is determinative here.

¶44 Accordingly, it was Beames’s obligation to provide an 

adequate record on appeal to demonstrate that Timber did not 

quickly alert when he first entered the vehicle to show that she 

would have prevailed had a motion to suppress been filed. In my 

opinion she has not done so, and I would affirm the convictions.