2014 UT App 289

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### T H E 

### U TA H 

### C O U RT O F 

### A P P E A L S

S TAT EOF U TAH

, Plainti ff and Appellee,

v. S HANNON S T E W

AR T , Defendan t and Appellant.

Memor andumDeci si on No. 20130672-CA Filed D ecember 11, 2014

Fifth Di stric t Co urt, Cedar Ci ty Depar tment The Honorable G. Michael Westfall

No. 081500713

Matthew D . Carling, Atto rney fo r Appellant Sean D. Reyes and Deborah L. Bulkeley, At tor neys

for Appellee

J UD G E G RE G OR

Y K. O R M Eauthore d thi s Memorandum Dec i si on, in whi ch J UD G E S J. F RE D E RI C V OR O S J R . and S T E PH E N L. R OTH

concu rr ed.

ORM E, Judge:

¶1 Defend a nt Shannon St ewart appeals her convic tion for possess i on or use of a contro lled sub stance, a thi rd degree felony, and possess i on of drug paraphernalia, a clas s B mi sdemeanor. We affi rm.
¶2 On the ni ght of December 1, 2008, a poli ce offi cer pul l ed Defendan t ov er becau se her taill ig hts were not work ing. The 1

1. “[W]e rev i ew the recor d facts in a l ig ht mo st favor able to the jury ’s ver di ct and reci te the facts ac cordin gly.” State v. Bro wn , 948 (continued...)State v. Stewa rt

poli ce offi cer approached Defendan t’s vehic le and to ld her the reason for the stop. The polic e offi cer notic ed that Defendant was “jitter y” and that she was “dancing aro und in the car” as she ret rieved her li cens e and reg i strat i on. Defendant told the poli ce
o ff icer that she was upset becau se Adult Probation and Paro l e (AP&P) ha d a r rived at her home to chec k on her boyfriend and 2 had int e r r upt ed her daughter’ s bi rt hday party , but she also told hi m di fferent stor i es that “di dn’t make sense.”

¶3 Whi le talking wi th Defendan t, the poli ce offi cer notic ed that she was slurring her words and that her “pupi ls were constric ted” and di d not respond to li ght. The poli ce offi cer, a certifi e d d rugre c ogni ti on exper t, recog ni zed De fe n d ant’ s s ym p to m s a s c on s i s te nt wi th the use of a narc o t i c li ke “Percocet or a Lort ab or a pain medi cati on.” Suspecting that Defendant was driving under the influ ence, the poli ce offi cer asked Defendan t to step outsi de her vehic le so that he could questi on her outsi de of the presence of the chi ldren in the car. Once she was outsid e t he v ehi cle, Defendan t told the poli ce offi cer that she too k three Lort abs a day, Prozac, and other pain medi cati on, but she also clai med that she was not under t he influ ence becau se she was i mmu ne to any si de effects o f he r medi cati on.
¶4 The poli ce offi cer then went back to hiscar to r un a li cens e
a nd warrants chec k on Defendan t. Whi le he was in hi s car , t he poli ce offic e r called an AP&P offi cer, who confi rmed that Defendan t had been at the home when AP&P agents arr i ved for a fi eld vis i t wi th her boyfriend, who was also a resi dent in the home. The AP&P offi cer repo rt ed that they had asked Defendant to leave becau se she was not cooper atin g wi th them. The AP&P offi cer then told the poli ce o ffi cer th a t t he y had found a box in a bathroo m in

1. (...continued) P.2d 337, 339 (Utah 1997).

2. Defendan t refe r s t o the probat i oner as her boyfriend; the St ate refer s to hi m as h er husband

.

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the home containing syringes and a cotto n ball wi th methamphetamine resi due. 3

¶5 Upon lear ning of the drug di scovery , the poli ce offi cer ret urned to Defendan t and asked her to pull up her sleeves so that he could look for injection si tes. The poli ce offi cer observe d needle marks and brui sing on both of Defendan t’s arms. The poli ce offi cer then conduc ted three fi eld so bri ety tests, all of whi ch Defendan t fai led. At thi s poin t, the po l ice o ffic er beli eved that Defendan t could not oper ate a vehic le becau se she was under the influ ence of i llegal drugs or pain medi cati o n, and he arr ested her for driving under the influ ence and placed her in the back seat of hi s patro l car. Whi le Defendan t was wai tin g in the car, the AP &P offi c e r deli ver ed the box found in the bathroo m to the poli ce offi cer. Defendan t’s mother also arr i ved o n the scene to pi ck up the chi ldren.

¶6 The poli ce offi cer then advis ed Defendan t of he r Mir anda rights and asked i f she understood her right s. A ccor ding to the poli ce offi cer, Defendan t sai d that she would be wi lling to cooper ate even though “she knew i t would go again st her” and that “there would be some questi ons she probably would want an atto rney wi th, but other questi on s sh e would be wi lling to

answ er.”Aft er Defendan t menti oned an atto rney, the poli ce offi cer told her that i f she wanted an atto r ne y he was not going to questi on her. Defendant then sai d th a t she would cooper ate and

answ er some of t he poli ce offi cer’s questi ons.
¶7 Thereafter, the poli ce offi cer asked Defendan t about the box wi thout tellin g her where i t had bee n found, and Defendan t told hi m that she knew about the box being under t he bathroo m sink and that the syringes were hers. Defendan t also admi tte d that, two days earlier, she had relapsed from a period of sobriety.

3. The poli ce offi cer test ifie d a t tr i al that he di d not use the information he obtained from AP &P as a basi s for hi s ini tial beli ef that Defendant was u nder the influenc e.

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¶8 The poli ce offi cer too k Defendant to the poli ce station and obtained a warrant for a blood and urine sampl e. The te st s later

came back negative for any i llegal drugs, but Defendant did test posi tive for hydro codone, a central nerv ous system depressant found in prescri ption pain medi cati ons that could have explain ed all o f Defendant’s symptom s except for her jitter iness

. Defendan t also tested posi tive for di phenhydramine, a central n e rv ous system depressant found in several o ver -the-counter medi cati ons.
¶9 Based on the contents of t he box, Defendant was charged wi th possess i on or use of a contro lled sub stance and possess i on of drug paraphernali a. She was also charged w i th d riving u nder the influ ence of alcohol or drugs, oper atin g an uns afe or i mproper ly equi pped vehic le, and driving wi thout a valid vehic le reg i strat i on. Defendan t fi led a motion to supp ress the e v ide nc e obtained pursuant to the ext ensi on of the tr affi c stop but sub sequently wi thdrew the motion. On the day of tr i al, Defendan t fi led a motion to supp ress her post-arr est statements, whi ch the tr i a l c ou rt d e ni ed. Defendan t also pled gui lty to the vehicle reg i strat i on charge and the St ate di smi ssed the DUI and oper ation of an uns afe vehic l e charges. A jury conv icted Defendan t of possess i on or use of a contro lled substanc e and posses si on of drug par aphernali a.
¶10 On appeal, Defendan t fi rst arg ues that her tr i al couns el was ineffec tive for wi thd ra w in g h e r fi rs t m otion to supp ress. Defendan t asserts that the poli ce offi cer ext ended the scope of the tr affi c stop wi thout a reasonable suspic io n t o do so, and thus, any evidenc e obtained there after should have been supp ressed. “An ineffec tive assi stance of couns el clai m rais ed for the fi rst tim e on appeal presents a questi on of law, whi ch we rev i ew for corr ectness.” State

v. Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766 (ci tation and internal quotat i on marks omitted).

¶11 To prov e ineffec tive assi stance of coun sel, Defendant mus t show both “that couns el’s repr e se nt ation fell below an objective standard of reaso na bleness ” and “that there i s a reasonable probabi li ty that, but for couns el’s unprofessi onal err or s, the result

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of the proceeding would have bee n d iffer ent.” Strickland v. Washington , 466 U.S. 668, 688, 694 (1984). “Where defense couns el’s fai lure to li tigate a Four th Amendm e nt cl ai m competently i s the p r incip al allegation of ineffec tiveness, the defendant mus t also pr o v e t ha t hi s Four th Amendment clai m i s meritorious and that there i s a reasonable probabi li ty that the ver di ct would have b een di fferent a bs e nt the excludable evidenc e in or der to demonstrate actual prej udi ce.” Kimm elman v. Morrison , 477 U.S. 365, 375 (1986).

¶12 The Four th Amendment to the Uni ted S tate s Constituti on prot ects citi zens fro m “unreasonable searches and sei zures.” U.S. Const. a me nd

. IV. “Although poli ce mus t have a warrant to conduc t most sea r ches and sei zures, ‘offi cers may tempor arily detain a vehic le and i ts occu p ants upon reasonable sus pi ci on of

cr iminal acti vity for the purpose of conduc tin g a li mi ted investigati on of the sus pi ci on.’” State v. Baker, 2010 UT 18, ¶ 11, 229 P.3d 650 (qu oting State v. Ja mes , 2000 UT 80, ¶ 10, 13 P.3d 576).

¶13 To deter mine whether a tr affi c stop i s reasonable under the Four th Amend ment, we apply a two-step test. Baker, 2010 UT 18, ¶ 12. First, we mus t deter mine “whether the poli ce offi cer’s acti on [was ] justifi ed at i ts incepti on” and, second, we mus t or dinaril y deter mine “whether the detention fo llowing the stop was reasonably relat ed in scope to the circum stances that justifi ed the interfer en ce in the fi rst place.” Id. (alterat i on in or i gin al) (ci tation and internal quotat i on marks omi tte d). “During a lawfu l tr affi c 4 stop, ‘[t]he tempor ary sei zure of driver and pass enger s or dinaril y continues, and remain s r easonable, for the duration o f t he stop.’”

4. As to the fi rst inqui ry , Defendan t d o e s not di spute that the offi cer was justifi ed in pulling t he v ehi cle ov er for havin g inoperable taill i ghts. See State v. L opez, 873 P.2d 1127, 1132 (Utah 1994) (“[ A] poli ce o ffi cer i s cons tituti onally j usti fi ed in stopping a vehic le i f the stop i s inci dent to a tr affi c violati on commi tte d in the offi cers’ presence. ” ) (ci tation and internal quotat i on marks omi tte d).

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Id. ¶ 13 (alterat i on in or i gin al) (quoting Arizona v. Johnson , 555 U.S. 323, 333 (2009)) . And “[i ]f, du ring the sc ope of the traffi c stop, the offi cer fo rms new reasonable art i culab le sus pi ci on of cri minal acti vity, the offi cer may also expediently investigate hi s new
sus pi ci on.” Baker, 2010 UT 18, ¶ 13. Reasonable sus pi ci on i s “sus pi ci on based on speci fi c, art i culab le facts drawn from the tot ali ty of t he circum stances facing the offi cer at the tim e of the stop.” State v. Hogue, 2007 UT App 86, ¶ 7, 157 P.3d 82 6 (c it a tion and internal quot ation marks omi tte d).

¶14 “ Utah courts gener ally find that probable caus e for DU I exis t s wh e n slurred speech , bloodshot eyes, and the smell of alcohol are accompani ed by fai led fi eld so br ie t y tests.” State v. Worw ood, 2007 UT 47, ¶ 35, 16 4 P.3d 397. “Of course, when some but not all of these factors are present, an offi cer may at least have

a reasonable, art i culab le sus pi ci on that a sus pect has been driving under the influ ence, and that su spi ci on w i ll warrant prolo nging a
sus pect’s detention for further investigati on so tha t t he offi cer’s

sus pi ci on can be di spelled or confi rmed.” State v. Beckstrom , 2013 UT App 104, ¶ 9, 300 P.3d 773.

¶15 Defendan t arg ues that the poli ce offi cer observ e d o nly “innocent behavi or ” before he asked Defendan t to exit her vehic le and that prescri ption d r ug use could explain all of Defendan t’s behavi or . We di sagree. 5

¶16 To begin wi th, the poli ce offi cer di d not learn a bo ut Defendan t’s prescri ption drug use unti l after Defendan t got out of her vehic le. Before the poli ce offi cer asked Defendan t to get out of her vehic le, he observe d that Defendan t was “jitter y,” she was “dancing aro und in the car,” her pupi ls w ere cons tr i cted, and her

5. In so statin g, we do not accept the premi se that inn o ce nt behavi or precludes re asona bl e sus pi ci on. See, e.g. , United States v. Sokolow , 490 U.S. 1, 9 (1989) (notin g that a collecti on of ci rcums tances, each “qui te consi stent wi th innocent tr avel,” may, “take n tog ether, . . . amount to r easonable su spi ci on”).

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speech was slurred. In add i ti on , a l thou gh D e fe n dant stated that she

was upset becau se AP& P int err upted her daughter’ s bi rt hday party , she also “start ed tellin g [the offi cer] di fferent st or i es that

. . . di dn’t make sens e.” These ci rcums tances prov i ded the poli ce offi cer wi th adequate sus pi ci on that Defendant wa s oper atin g her vehic le under t he influ ence and justifi ed ext ending the stop to inqui re about Defendan t’s sobri ety

. See Hogue, 2007 UT App 86, ¶ 8 (conc luding tha t t he defendant’s “di lated pupi ls,

nerv ou s demeanor, and jer ky body movements” prov i ded the offi cer wi th reasonable sus pi ci on that the defendant was oper atin g hi s vehi cle un der the influ ence).

¶17 After Defendant got out of her vehic le, the poli ce offi cer learned that she was on several pres cri ption medi cati ons. Admi tte dly, Defendan t’s prescri ption medi cati ons could have

accoun ted for her constric ted pupils. And at the tim e Defendan t told the poli ce offi cer about her medi cati ons, she also clai med that she was not under the influ ence becau se she was i mmu ne to any i lleffects of her pain medi cati ons given her longstanding use of them. To the ext ent the offi cer beli eved thi s cl a im, he would be rightly concerned that her behavi or was explain ed by ingestion of alcohol

or i llegal drugs. Accordingly, given the tot ali ty of the ci rcums tances, we conclu de that the poli ce offi cer possess ed reasonable, art i culab le sus picion that Defendan t was under the influ ence o f some intox i cant and t hat he was ther efore entitled t o ext end the stop to admini ster fi eld so br iety tests. See Beckstrom , 2013 UT App 104, ¶¶ 3, 10–11 (conc luding that glossy eyes, slurred sp eech, and the smell of alcohol justifi ed the bri ef detentio n
necess ary to admini ster field sobri ety tests).

¶18 Becaus e the poli ce offi cer’s ob ser vat i ons of Defendan t prov i ded hi m wi th reasonable sus pi ci on to admini ster t he tests, Defendan t ca nn o t show that her fi rst motion to supp ress would have been gr anted had her tr i al couns el not wi thdrawn i t. Havin g deter mined that Defendant’s fi rst motion to supp ress would not have suc ceeded o n t he merits, we conclu de that Defendan t’s ineffec tive-ass i stance cla im based on the fi rst motion to supp ress

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necess arily fai ls. See K i m melman v. Morrison , 477 U.S. 365, 375 (1986).

¶19 Defendan t next arg ues that her tr i al couns el r e ndered ineffec tive assi stance by fai ling to tim ely fi le her second motion to supp ress, based on the clai med violati on of Defendant’s Miranda ri ghts

. D e fe n d ant’ s s e c on d in e ffe c tive
- a s s i s tan c e c lai m also presents

a questi on o f l a w. State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162. To prov e ineffec tive assi stance of couns el, Defendant mus t show “that

couns el’s perfor manc e was defi ci ent” and “ t ha t the defi ci ent perfor manc e prej udi ced the defense.” Strickland v. Washington , 466 U.S. 668, 687 (1984).

¶20 As noted above, “the fai lure to fi le a supp r e ssi on motion does not consti tute per se ineffect iv e assi stance of couns el.” Kimm elman , 477 U.S. at 384. Before we reach Defendan t’s ine ffec tive-ass i stance clai m, “‘we mus t fi rst deci de whether [D] efendant’s Miranda rights were actually v i olated,’ becau se ‘ [i ]f they were not, tr i al couns el’s tar diness in bringing the supp ressi on motion was not prej udi ci al and the ineffec tive assi stance clai m fai ls.’” State v. Ferry, 2007 UT App 128, ¶ 12, 163 P.3d 647 (alterat i on in or i gin al) (quoting State v. Snyde r, 860 P.2d 351 , 3 5 4 (Utah Ct. App. 1993)).

¶21 The F ifth Amendment to the Uni ted St ates Constituti on “prot ects individu als from being compelled to give evidenc e again st themselves.” State v. Rettenberger, 1 9 99 UT 80, ¶ 11, 984 P.2d 1009 (emphas i s in o r igin al) (ci tations and internal quotat i on marks omi tte d). In Miranda v. Arizona , 3 84 U.S. 436 (1966), the Uni ted St ates Supreme Court held t ha t law enforcement offi cers conduc tin g cus todial interr ogat i ons mus t give certain warnings prior to questi oning sus pects and must follow cert ain procedures after giving these warnings. Id. at 444, 478–79. One of the warnings i s that the defen dant has the ri ght to an attor ney durin g custodi al interr ogat i on. See id. at 479. If the defendant “indi cates in any
manner and at any stage of the process that he wi shes t o co ns ul t wi th an atto rney before speaking there can be no questi oning.” Id. at 444–45

.

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¶22 The Utah Supreme Court has held that i f “a defendant makes an ambi guous or equi vo cal request fo r a n atto rney, questi oning w i th respec t to the subject matter of the investigati on
mus t i mmedi ately stop, and any further questi oning mus t be li mi ted to clari fying the request. If the defendant then makes clear that he or she desi res to have couns el present, further questi oning i s prohibi ted.” State v. Woo d, 868 P.2d 70, 85 (Utah 1993), overruled

on other grounds by State v. Mirquet, 914 P.2d 1144, 1147 n.2 (Utah 1996). See State v. Leyva , 951 P.2d 738, 743 (Utah 1997) (reaffi rming Woo d as appli ed to sus pects who have been given, but not yet wai ved, their Miranda rig ht s) ; State v. Gutierrez , 864 P.2d 894, 901 (Utah Ct. App. 1993) (notin g th a t the clari fi cati on approach for evaluating an equi vo cal invocation of the right to couns el consi sts of two inqui ries : “fi rst, whether an a ccu sed actually invok ed [a Miranda right], and second, i f so, whether that request was scrupu lously honor ed thro ugh clari fi cati on efforts”) (alterat i on in
or i gin al) (ci tation and internal quotat i on marks omi tte d). “A si mpl e, s tr a i ghtfor ward effort to clari fy the request i s appropr i ate.” Woo d, 868 P.2d at 84. “When an ambi guous request i s accompani ed by a vo luntar y , expr essed wi llingness to talk, that should not preclude all further conver sati on between the sus pect and the interr ogat ing offi cer.” Id.

¶23 Here, D efendant’s request for an atto rney was ambi guous. The poli ce offi cer testifi ed tha t he r e ad Defendan t her Miranda rights and asked her i f she understood her rights. Defendant stated that she di d, and so the poli ce offi cer asked Def endant i f she was wi lling to talk to hi m wi thout an atto rney present. Defendan t sai d that she would be wi lling to cooper ate even though “ sh e knew i t would go again st her” and that “there would be some questio ns she probably would want an atto rney wi th, but other questi ons she would be w i lling to answ er.” Defendant’s remark that she would want a n a t t o rney for some questi ons consti tuted an ambi guous request for an atto rney, and thus, i t was the poli ce o ffi cer’s responsibi li ty t o clarif

y Defendant’s request.

¶24 The poli ce offi cer di d so here. After Defenda nt menti oned the possi bi li ty of conferring wi th an atto rney, the poli ce offi cer told

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Defendan t thati f sh e wanted an atto rney he would not be able t o talk to her. Defendan t s tate d that sh e would “talk a li ttle bi t.” The poli ce offi cer testifi e d t hat he then “made sure that [Defendant] understood what her rights were” and “that she coul d have her atto rney,” and that Defendan t “sai d that she wanted to cooper ate.” By ensur ing that Defendan t understood her rights and that she could have an at t o rney present before questi oning, the poli ce offi cer fu l fi lled hi s duty to clari fy Defendan t’s request for an atto rney. Although Defendant’s ini ti a l request was ambi guous, she sub sequently “expr essed [a] wi llingness to talk” to t he poli ce offi cer after he clari fi ed that she understood he r r ig ht s. See id. According l y , Defendan t’s Miranda rights were not violated when she chose to answ er the questi ons asked, and she cannot show that tr i al couns el’s tar diness in bringing the second motion to supp ress
was prej udi ci al. See State v. Ferry, 2007 UT App 128, ¶ 12, 163 P.3d 647.

¶25 Mor eov er, Defendan t was not prej udi ced by tr i al couns el’s late fi ling of the second supp ressi on motion becau se a minute entry

r e flects that although the tr i al court found Defendan t’s mo t io n unti mely, the c ourt sti ll allowed Defendant’s c ounsel to argue the motion prior to tr i al (outsi de of the potent i al j ur or s’ presence) before ultim ately deny ing i t. Consequently, becau se we conclu de that Defendan t’s Miranda rights were not violated and becau se the tr i al court consi dered and deni ed Defendan t’s m otion, Defendan t cannot demonstrate that she was prej udi ced by tr i al couns el’s late fi ling of the motion, a nd t hu s, she cannot prov e that tr i al couns el was ineffec tive for fai ling to fi le the second m otion to suppress in a more t i mely manner. 6

¶26 We conclu de that Defendan t cannot d emonstrat e that the outcome of her tr i al would have been di fferent had couns el not

6. Defendan t also clai ms that the tr i al court err ed when i t fai led to consi der Defendan t’s second motion to su ppress prior to the start of her tr i al. Thi s contention i s wi thout merit. As prev i ously indi cated , t he court addressed and deni ed Defendan t’s motion before her tr i al began.

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wi thdrawn her fi rst motion to supp ress becau se the motion would h a ve been deni ed. Defendan t’s behavi or prov i ded the poli c e offi c e r wi th reasonable, art i culab le sus pi ci on to ext end the tr affi c stop and admini ster fi eld sobri ety tests. We further conclu de that Defendan t cannot demonstrate that the outcome of her tr i al would have been di ff e r e nt had couns el tim ely fi led her second motion to supp ress becau se that motion would also have been deni ed, becau se Defendan t’s Miranda rights were not v i olated.

¶27 Affi rmed.

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