State v. Stewart

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.1 The

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 boyfriend2 and
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 drug-
recognition expert, 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&P officer 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 central nervous 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 court denied.
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

20130672-CA 4 2014 UT App 289
 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).4 “During a lawful traffic
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, although Defendant 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 ill-
effects 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

20130672-CA 7 2014 UT App 289
 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 second ineffective-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.

20130672-CA 8 2014 UT App 289
 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

20130672-CA 9 2014 UT App 289
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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 initial request 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 police officer
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