2014 UT App 289

_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

SHANNON STEWART,

Defendant and Appellant.

Memorandum Decision

No. 20130672-CA

Filed December 11, 2014

Fifth District Court, Cedar City Department

The Honorable G. Michael Westfall

No. 081500713

Matthew D. Carling, Attorney for Appellant

Sean D. Reyes and Deborah L. Bulkeley, Attorneys

for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,

in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH

concurred.

ORME, Judge:

¶1 Defendant Shannon Stewart appeals her conviction for

possession or use of a controlled substance, a third degree felony,

and possession of drug paraphernalia, a class B misdemeanor. We

affirm.

¶2 On the night of December 1, 2008, a police officer pulled

Defendant over because her taillights were not working. The 1

1. “[W]e review the record facts in a light most favorable to the

jury’s verdict and recite the facts accordingly.” State v. Brown, 948

(continued...)
State v. Stewart

police officer approached Defendant’s vehicle and told her the

reason for the stop. The police officer noticed that Defendant was

“jittery” and that she was “dancing around in the car” as she

retrieved her license and registration. Defendant told the police

officer that she was upset because Adult Probation and Parole

(AP&P) had arrived at her home to check on her boyfriend and 2

had interrupted her daughter’s birthday party, but she also told

him different stories that “didn’t make sense.”

¶3 While talking with Defendant, the police officer noticed that

she was slurring her words and that her “pupils were constricted”

and did not respond to light. The police officer, a certified drugrecognitionexpert, recognized Defendant’s symptoms as consistent

with the use of a narcotic like “Percocet or a Lortab or a pain

medication.” Suspecting that Defendant was driving under the

influence, the police officer asked Defendant to step outside her

vehicle so that he could question her outside of the presence of the

children in the car. Once she was outside the vehicle, Defendant

told the police officer that she took three Lortabs a day, Prozac, and

other pain medication, but she also claimed that she was not under

the influence because she was immune to any side effects of her

medication.

¶4 The police officer then went back to his car to run a license

and warrants check on Defendant. While he was in his car, the

police officer called an AP&P officer, who confirmed that

Defendant had been at the home when AP&P agents arrived for a

field visit with her boyfriend, who was also a resident in the home.

The AP&P officer reported that they had asked Defendant to leave

because she was not cooperating with them. The AP&P officer then

told the police officer that they had found a box in a bathroom in

1. (...continued)

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

2. Defendant refers to the probationer as her boyfriend; the State

refers to him as her husband.

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State v. Stewart

the home containing syringes and a cotton ball with

methamphetamine residue.3

¶5 Upon learning of the drug discovery, the police officer

returned to Defendant and asked her to pull up her sleeves so that

he could look for injection sites. The police officer observed needle

marks and bruising on both of Defendant’s arms. The police officer

then conducted three field sobriety tests, all of which Defendant

failed. At this point, the police officer believed that Defendant

could not operate a vehicle because she was under the influence of

illegal drugs or pain medication, and he arrested her for driving

under the influence and placed her in the back seat of his patrol car.

While Defendant was waiting in the car, the AP&Pofficer delivered

the box found in the bathroom to the police officer. Defendant’s

mother also arrived on the scene to pick up the children.

¶6 The police officer then advised Defendant of her Miranda

rights and asked if she understood her rights. According to the

police officer, Defendant said that she would be willing to

cooperate even though “she knew it would go against her” and

that “there would be some questions she probably would want an

attorney with, but other questions she would be willing to

answer.”After Defendant mentioned an attorney, the police officer

told her that if she wanted an attorney he was not going to

question her. Defendant then said that she would cooperate and

answer some of the police officer’s questions.

¶7 Thereafter, the police officer asked Defendant about the box

without telling her where it had been found, and Defendant told

him that she knew about the box being under the bathroom sink

and that the syringes were hers. Defendant also admitted that, two

days earlier, she had relapsed from a period of sobriety.

3. The police officer testified at trial that he did not use the

information he obtained from AP&P as a basis for his initial belief

that Defendant was under the influence.

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State v. Stewart

¶8 The police officer took Defendant to the police station and

obtained a warrant for a blood and urine sample. The tests later

came back negative for any illegal drugs, but Defendant did test

positive for hydrocodone, a central nervous system depressant

found in prescription pain medications that could have explained

all of Defendant’s symptoms except for her jitteriness. Defendant

also tested positive for diphenhydramine, a centralnervous system

depressant found in several over-the-counter medications.

¶9 Based on the contents of the box, Defendant was charged

with possession or use of a controlled substance and possession of

drug paraphernalia. She was also charged with driving under the

influence of alcohol or drugs, operating an unsafe or improperly

equipped vehicle, and driving without a valid vehicle registration.

Defendant filed a motion to suppress the evidence obtained

pursuant to the extension of the traffic stop but subsequently

withdrew the motion. On the day of trial, Defendant filed a motion

to suppress her post-arrest statements, which the trial courtdenied.

Defendant also pled guilty to the vehicle registration charge and

the State dismissed the DUI and operation of an unsafe vehicle

charges. A jury convicted Defendant of possession or use of a

controlled substance and possession of drug paraphernalia. 

¶10 On appeal, Defendant first argues that her trial counsel was

ineffective for withdrawing her first motion to suppress. Defendant

asserts that the police officer extended the scope of the traffic stop

without a reasonable suspicion to do so, and thus, any evidence

obtained thereafter should have been suppressed. “An ineffective

assistance of counsel claim raised for the first time on appeal

presents a question of law, which we review for correctness.” State

v. Walker, 2010 UT App 157, ¶ 13, 235 P.3d 766 (citation and internal

quotation marks omitted). 

¶11 To prove ineffective assistance of counsel, Defendant must

show both “that counsel’s representation fell below an objective

standard of reasonableness” and “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result

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State v. Stewart

of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 688, 694 (1984). “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.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). 

¶12 The Fourth Amendment to the United States Constitution

protects citizens from “unreasonable searches and seizures.” U.S.

Const. amend. IV. “Although police must have a warrant to

conduct most searches and seizures, ‘officers may temporarily

detain a vehicle and its occupants upon reasonable suspicion of

criminal activity for the purpose of conducting a limited

investigation of the suspicion.’” State v. Baker, 2010 UT 18, ¶ 11, 229

P.3d 650 (quoting State v. James, 2000 UT 80, ¶ 10, 13 P.3d 576). 

¶13 To determine whether a traffic stop is reasonable under the

Fourth Amendment, we apply a two-step test. Baker, 2010 UT 18,

¶ 12. First, we must determine “whether the police officer’s action

[was] justified at its inception” and, second, we must ordinarily

determine “whether the detention following the stop was

reasonably related in scope to the circumstances that justified the

interference in the first place.” Id. (alteration in original) (citation

and internal quotation marks omitted). “During a lawful traffic

4

stop, ‘[t]he temporary seizure of driver and passengers ordinarily

continues, and remains reasonable, for the duration of the stop.’”

4. As to the first inquiry, Defendant does not dispute that the

officer was justified in pulling the vehicle over for having

inoperable taillights. See State v. Lopez, 873 P.2d 1127, 1132 (Utah

1994) (“[A] police officer is constitutionally justified in stopping a

vehicle if the stop is incident to a traffic violation committed in the

officers’ presence.”) (citation and internal quotation marks

omitted).

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State v. Stewart

Id. ¶ 13 (alteration in original) (quoting Arizona v. Johnson, 555 U.S.

323, 333 (2009)). And “[i]f, during the scope of the traffic stop, the

officer forms new reasonable articulable suspicion of criminal

activity, the officer may also expediently investigate his new

suspicion.” Baker, 2010 UT 18, ¶ 13. Reasonable suspicion is

“suspicion based on specific, articulable facts drawn from the

totality of the circumstances facing the officer at the time of the

stop.” State v. Hogue, 2007 UT App 86, ¶ 7, 157 P.3d 826 (citation

and internal quotation marks omitted). 

¶14 “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.” State v.

Worwood, 2007 UT 47, ¶ 35, 164 P.3d 397. “Of course, when some

but not all of these factors are present, an officer may at least have

a reasonable, articulable suspicion that a suspect has been driving

under the influence, and that suspicion will warrant prolonging a

suspect’s detention for further investigation so that the officer’s

suspicion can be dispelled or confirmed.” State v. Beckstrom, 2013

UT App 104, ¶ 9, 300 P.3d 773.

¶15 Defendant argues that the police officer observed only

“innocent behavior” before he asked Defendant to exit her vehicle

and that prescription drug use could explain all of Defendant’s

behavior. We disagree.5

¶16 To begin with, the police officer did not learn about

Defendant’s prescription drug use until after Defendant got out of

her vehicle. Before the police officer asked Defendant to get out of

her vehicle, he observed that Defendant was “jittery,” she was

“dancing around in the car,” her pupils were constricted, and her

5. In so stating, we do not accept the premise that innocent

behavior precludes reasonable suspicion. See, e.g., United States v.

Sokolow, 490 U.S. 1, 9 (1989) (noting that a collection of

circumstances, each “quite consistent with innocent travel,” may,

“taken together, . . . amount to reasonable suspicion”).

20130672-CA 6 2014 UT App 289
State v. Stewart

speech was slurred. In addition, althoughDefendant stated that she

was upset because AP&P interrupted her daughter’s birthday

party, she also “started telling [the officer] different stories

that . . . didn’t make sense.” These circumstances provided the

police officer with adequate suspicion that Defendant was

operating her vehicle under the influence and justified extending

the stop to inquire about Defendant’s sobriety. See Hogue, 2007 UT

App 86, ¶ 8 (concluding that the defendant’s “dilated pupils,

nervous demeanor, and jerky body movements” provided the

officer with reasonable suspicion that the defendant was operating

his vehicle under the influence).

¶17 After Defendant got out of her vehicle, the police officer

learned that she was on several prescription medications.

Admittedly, Defendant’s prescription medications could have

accounted for her constricted pupils. And at the time Defendant

told the police officer about her medications, she also claimed that

she was not under the influence because she was immune to any illeffects of her pain medications given her longstanding use of them.

To the extent the officer believed this claim, he would be rightly

concerned that her behavior was explained by ingestion of alcohol

or illegal drugs. Accordingly, given the totality of the

circumstances, we conclude that the police officer possessed

reasonable, articulable suspicion that Defendant was under the

influence of some intoxicant and that he was therefore entitled to

extend the stop to administer field sobriety tests. See Beckstrom,

2013 UT App 104, ¶¶ 3, 10–11 (concluding that glossy eyes, slurred

speech, and the smell of alcohol justified the brief detention

necessary to administer field sobriety tests).

¶18 Because the police officer’s observations of Defendant

provided him with reasonable suspicion to administer the tests,

Defendant cannot show that her first motion to suppress would

have been granted had her trial counsel not withdrawn it. Having

determined that Defendant’s first motion to suppress would not

have succeeded on the merits, we conclude that Defendant’s

ineffective-assistance claim based on the first motion to suppress

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State v. Stewart

necessarily fails. See Kimmelman v. Morrison, 477 U.S. 365, 375

(1986).

¶19 Defendant next argues that her trial counsel rendered

ineffective assistance by failing to timely file her second motion to

suppress, based on the claimed violation of Defendant’s Miranda

rights.Defendant’s secondineffective-assistance claim also presents

a question of law. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To

prove ineffective assistance of counsel, Defendant must show “that

counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466

U.S. 668, 687 (1984).

¶20 As noted above, “the failure to file a suppression motion

does not constitute per se ineffective assistance of counsel.”

Kimmelman, 477 U.S. at 384. Before we reach Defendant’s

ineffective-assistance claim, “‘we must first decide whether

[D]efendant’s Miranda rights were actually violated,’ because ‘[i]f

they were not, trial counsel’s tardiness in bringing the suppression

motion was not prejudicial and the ineffective assistance claim

fails.’” State v. Ferry, 2007 UT App 128, ¶ 12, 163 P.3d 647 (alteration

in original) (quoting State v. Snyder, 860 P.2d 351, 354 (Utah Ct.

App. 1993)).

¶21 The Fifth Amendment to the United States Constitution

“protects individuals from being compelled to give evidence against

themselves.” State v. Rettenberger, 1999 UT 80, ¶ 11, 984 P.2d 1009

(emphasis in original) (citations and internal quotation marks

omitted). In Miranda v. Arizona, 384 U.S. 436 (1966), the United

States Supreme Court held that law enforcement officers

conducting custodial interrogations must give certain warnings

prior to questioning suspects and must follow certain procedures

after giving these warnings. Id. at 444, 478–79. One of the warnings

is that the defendant has the right to an attorney during custodial

interrogation. See id. at 479. If the defendant “indicates in any

manner and at any stage of the process that he wishes to consult

with an attorney before speaking there can be no questioning.” Id.

at 444–45.

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State v. Stewart

¶22 The Utah Supreme Court has held that if “a defendant

makes an ambiguous or equivocal request for an attorney,

questioning with respect to the subject matter of the investigation

must immediately stop, and any further questioning must be

limited to clarifying the request. If the defendant then makes clear

that he or she desires to have counsel present, further questioning

is prohibited.” State v. Wood, 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) (reaffirming

Wood as applied to suspects who have been given, but not yet

waived, their Miranda rights); State v. Gutierrez, 864 P.2d 894, 901

(Utah Ct. App. 1993) (noting that the clarification approach for

evaluating an equivocal invocation of the right to counsel consists

of two inquiries: “first, whether an accused actually invoked [a

Miranda right], and second, if so, whether that request was

scrupulously honored through clarification efforts”) (alteration in

original) (citation and internal quotation marks omitted). “A

simple, straightforward effort to clarify the request is appropriate.”

Wood, 868 P.2d at 84. “When an ambiguous request is accompanied

by a voluntary, expressed willingness to talk, that should not

preclude all further conversation between the suspect and the

interrogating officer.” Id.

¶23 Here, Defendant’s request for an attorney was ambiguous.

The police officer testified that he read Defendant her Miranda

rights and asked her if she understood her rights. Defendant stated

that she did, and so the police officer asked Defendant if she was

willing to talk to him without an attorney present. Defendant said

that she would be willing to cooperate even though “she knew it

would go against her” and that “there would be some questions

she probably would want an attorney with, but other questions she

would be willing to answer.” Defendant’s remark that she would

want an attorney for some questions constituted an ambiguous

request for an attorney, and thus, it was the police officer’s

responsibility to clarify Defendant’s request.

¶24 The police officer did so here. After Defendant mentioned

the possibility of conferring with an attorney, the police officer told

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State v. Stewart

Defendant that if she wanted an attorney he would not be able to

talk to her. Defendant stated that she would “talk a little bit.” The

police officer testified that he then “made sure that [Defendant]

understood what her rights were” and “that she could have her

attorney,” and that Defendant “said that she wanted to cooperate.”

By ensuring that Defendant understood her rights and that she

could have an attorney present before questioning, the police

officer fulfilled his duty to clarify Defendant’s request for an

attorney. Although Defendant’s initialrequest was ambiguous, she

subsequently “expressed [a] willingness to talk” to the police

officer after he clarified that she understood her rights. See id.

Accordingly, Defendant’s Miranda rights were not violated when

she chose to answer the questions asked, and she cannot show that

trial counsel’s tardiness in bringing the second motion to suppress

was prejudicial. See State v. Ferry, 2007 UT App 128, ¶ 12, 163 P.3d

647.

¶25 Moreover, Defendant was not prejudiced by trial counsel’s

late filing of the second suppression motion because a minute entry

reflects that although the trial court found Defendant’s motion

untimely, the court still allowed Defendant’s counsel to argue the

motion prior to trial (outside of the potential jurors’ presence)

before ultimately denying it. Consequently, because we conclude

that Defendant’s Miranda rights were not violated and because the

trial court considered and denied Defendant’s motion, Defendant

cannot demonstrate that she was prejudiced by trial counsel’s late

filing of the motion, and thus, she cannot prove that trial counsel

was ineffective for failing to file the second motion to suppress in

a more timely manner.6

¶26 We conclude that Defendant cannot demonstrate that the

outcome of her trial would have been different had counsel not

6. Defendant also claims that the trial court erred when it failed to

consider Defendant’s second motion to suppress prior to the start

of her trial. This contention is without merit. As previously

indicated, the court addressed and denied Defendant’s motion

before her trial began.

20130672-CA 10 2014 UT App 289
State v. Stewart

withdrawn her first motion to suppress because the motion would

have been denied. Defendant’s behavior provided the policeofficer

with reasonable, articulable suspicion to extend the traffic stop and

administer field sobriety tests. We further conclude that Defendant

cannot demonstrate that the outcome of her trial would have been

different had counsel timely filed her second motion to suppress

because that motion would also have been denied, because

Defendant’s Miranda rights were not violated.

¶27 Affirmed.

20130672-CA 11 2014 UT App 289