State v. Taylor

2017 UT App 89

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROY D. TAYLOR,
Appellant.

Opinion
No. 20150767-CA
Filed June 2, 2017

Fourth District Court, Heber Department
The Honorable Roger W. Griffin
No. 141500331

Corbin B. Gordon, Dan H. Matthews, and Jarom B.
Bangerter, Attorneys for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and JILL M. POHLMAN concurred.

ROTH, Judge:

¶1 Roy D. Taylor challenges the trial court’s denial of his
motion to suppress evidence of drugs discovered during a
consent search of his car. The court admitted the evidence, and a
jury convicted Taylor of possession of a controlled substance
with intent to distribute and possession of drug paraphernalia.
We affirm.

¶2 In October 2014, Officer Paul Scott saw Taylor traveling
toward Heber City. Taylor and his car matched the description
given to police by a confidential informant who indicated Taylor
would be transporting methamphetamine. Scott then followed
behind Taylor and saw him commit a traffic violation by
 State v. Taylor

following the car in front of him too closely. Scott pulled Taylor’s
car over for the violation. He later admitted that the stop was a
pretext designed to give him an opportunity to follow up on the
confidential informant’s tip.

¶3 Officer Scott asked Taylor for his license and registration.
Taylor had a friend in the passenger seat, so he separated the
two for his safety by having Taylor stand by the front bumper of
the police cruiser while the passenger remained in the stopped
car. Scott then began checking Taylor’s documentation, which
took roughly “three to five minutes.” While the records check
was ongoing, two other officers, having learned of the stop over
the radio, arrived on the scene. One of them spoke with Taylor
and asked to search his car. Taylor consented. The search
uncovered a glass pipe with residue and burn marks, a box of
clear plastic bags, and a digital scale. The officers arrested Taylor
and transported him to jail. They later discovered that he had
stashed a bag of methamphetamine in the police car along the
way.

¶4 The State charged Taylor with possession or use of a
controlled substance with intent to distribute under Utah Code
section 58-37-8(2)(a)(i) and possession of drug paraphernalia
under section 58-37a-5(1). Taylor moved to suppress the drug
evidence uncovered during the search on the alternative theories
that either the stop was not supported by reasonable suspicion
or Taylor’s detention exceeded the permissible scope of the
traffic stop. The State opposed the motion and the trial court
held a hearing on the matter.

¶5 At the end of the hearing, the court stated that it found
Officer Scott’s “testimony [to be] credible.” And based on that
testimony, the court found “that the defendant [Taylor] was
following too closely so that the stop was proper.” The court
then requested additional briefing to address a lingering legal
question about the validity of pretext stops. The State briefed the
issue, and Taylor’s counsel conceded the State’s position, namely
that a traffic stop motivated by pretext is valid so long as a legal

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 State v. Taylor

basis for the stop exists. The court did not enter a formal order
regarding the motion to suppress, but it is apparent that the
motion was denied because the contested evidence was
presented at trial. The jury found Taylor guilty as charged, and
he timely appealed.

¶6 Taylor raises three arguments on appeal: (1) the stop of
his vehicle was illegal under the Fourth Amendment to the
United States Constitution because police “fabricated” the
reason for the stop; (2) the police questioning and request for
consent to search his vehicle “impermissibly broadened and
extended and thus exceeded the scope of the stop” in violation of
the Fourth Amendment; and (3) his trial counsel provided
ineffective assistance during the suppression phase of his case. 1
“We review a trial court’s decision to grant or deny a motion to
suppress for an alleged Fourth Amendment violation as a mixed
question of law and fact.” State v. Fuller, 2014 UT 29, ¶ 17, 332
P.3d 937. “While the court’s factual findings are reviewed for
clear error, its legal conclusions are reviewed for correctness,
including its application of law to the facts of the case.” Id. And
“[w]hen 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 determine whether the defendant was deprived of
the effective assistance of counsel as a matter of law.” State v.
Tirado, 2017 UT App 31, ¶ 10, 392 P.3d 926.

¶7 We begin by examining Taylor’s Fourth Amendment
claims. “[T]he touchstone of the Fourth Amendment is
reasonableness,” which “is measured in objective terms by
examining the totality of the circumstances.” Ohio v. Robinette,
519 U.S. 33, 39 (1996) (citation and internal quotation marks

1. Taylor also argues that the information police learned from the
confidential informant did not create reasonable suspicion to
stop his car. Because we conclude that the stop was
independently justified based on a traffic violation we do not
reach that question.

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 State v. Taylor

omitted). “To decide whether police conduct during a traffic
stop is reasonable, we consider whether the stop was (1)
‘justified at its inception’ and (2) carried out in a manner
‘reasonably related in scope to the circumstances [that] justified
the interference in the first place.’” State v. Martinez, 2017 UT 26,
¶ 12 (alteration in original) (quoting United States v. Sharpe, 470
U.S. 675, 682 (1985)).

¶8 Taylor’s first argument is that the stop was not justified at
its inception. In essence, he asserts that Officer Scott wanted to
search Taylor for drugs and, when he could not find a valid
reason to stop Taylor, he made one up. Specifically, Taylor
claims that Scott “followed [Taylor’s] vehicle for a period of time
and[,] finding no reason to pull him over, the officer fabricated
an offense, claiming he could tell that [Taylor’s] car was
following too close to the vehicle ahead of him.” In other words,
Taylor alleges that Scott lied.

¶9 Taylor bases much of his legal position on our supreme
court’s holding in State v. Lopez, 873 P.2d 1127 (Utah 1994). In
Lopez, the court noted that “an officer’s subjective suspicions
unrelated to the traffic violation for which he or she stops a
defendant can be used by defense counsel to show that the
officer fabricated the violation.” Id. at 1138. The court explained
that subjective intent exists on a sliding scale: “The more
evidence that a detention was motivated by police suspicions
unrelated to the traffic offense, the less credible the officer’s
assertion that the traffic offense occurred.” Id. at 1138–39. Taylor
essentially argues that, because Officer Scott admitted the stop
was a pretext for a drug investigation based on the confidential
informant’s tip, the trial court should not have found his
testimony about the legal basis for the stop credible.

¶10 Taylor’s argument, however, runs headlong into the trial
court’s credibility finding. The trial judge stated on the record, “I
think [Officer Scott’s] testimony is credible, that the defendant
was following too closely.” That credibility determination poses
a major hurdle for Taylor because “we accord deference to the

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trial court’s ability and opportunity to evaluate credibility and
demeanor.” State v. Davie, 2011 UT App 380, ¶ 18, 264 P.3d 770
(citation and internal quotation marks omitted). Indeed, “we
defer to [the trial court’s] findings unless the record
demonstrates clear error.” Id. (citation and internal quotation
marks omitted). And the sliding scale for assessing officer
credibility articulated in Lopez does not impinge upon this
principle. Lopez explains that a trial court may be skeptical of
police testimony related to pretext stops, not that appellate
courts may be skeptical of a trial court’s credibility
determination. See Lopez, 873 P.2d at 1138–39.

¶11 Although it is clear that Taylor would like us to conduct a
plenary review of the record in the hope that we might make a
different credibility determination, we defer to the trial court’s
findings unless the record demonstrates clear error, see Davie,
2011 UT App 380, ¶ 18, which Taylor has not established. For
instance, Taylor alleges that Officer Scott did not explain in
detail how he was able to judge Taylor’s following distance from
his police cruiser, which was behind Taylor on the roadway. But
Scott testified that Taylor’s car was following “[c]loser” than “[a]
car length away” from the car in front of him. Thus, Scott’s
conclusion that there had been a “following” violation was
based on his own observations. Such relatively specific
testimony was not simply a “vague representation[] . . . that Mr.
Taylor had followed too close,” as Taylor now asserts. And
while it is true, as Taylor points out, that Scott did not remember
whether the vehicle Taylor was following was a four door or a
two door, he did remember that it was “[a] passenger car” rather
than a motorcycle or truck. Finally, we note that, contrary to
Taylor’s assertion, Scott testified specifically about how long he
observed Taylor’s car following too closely: “it was probably half
a mile, quarter mile.” While the officer might have provided
more detailed testimony in some respects, no objection was
lodged. The testimony that he had personally observed a traffic
violation was thus evidence on which the trial court could
properly rely. Cf. State v. Christensen, 2014 UT App 166, ¶ 15, 331
P.3d 1128 (noting that even evidence with an allegedly weak

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foundation, once admitted, is sufficient to support a finding of
fact).

¶12 Even if we thought Officer Scott’s testimony lacked
concrete detail in a way that undermined his credibility, we are
not at liberty to substitute our judgment on that topic for the trial
court’s. “Our role is not to reweigh the evidence, but to
determine only if the appellant has demonstrated a lack of
evidentiary support for the trial court’s findings.” Utah Dep’t of
Transp. v. TBT Prop. Mgmt., Inc., 2015 UT App 211, ¶ 23, 357 P.3d
1032; see also American Fork City v. Thayne, 2012 UT App 130, ¶ 4,
279 P.3d 840 (per curiam) (“[A] challenge to the district court’s
credibility determination fails if a defendant has provided no
reason for this court to depart from the deference we grant the
trial court to make credibility determinations.” (citation and
internal quotation marks omitted)). Taylor has neither
demonstrated a lack of evidentiary support for the trial court’s
findings nor persuaded us to depart from our ordinary
deferential review. We therefore affirm the trial court’s
determination that Scott was credible and, with it, the court’s
resulting conclusion that the stop was justified at its inception.
See State v. Martinez, 2017 UT 26, ¶ 12.

¶13 We next address Taylor’s argument that the police request
for permission to search his car “went beyond the scope of the
traffic stop and was illegal under the Fourth Amendment.”
Specifically, Taylor alleges that “Scott delayed issuing the
citation or warning for the alleged violation, thus allowing the
other narcotics officer . . . to obtain consent to search the
vehicle.” Taylor, however, does not support his allegation of
delay with any citations to the record.

¶14 What the record shows is this: Once Officer Scott had
Taylor’s license and registration information, it took “three to
five minutes” for the police dispatcher to check the information
and “come back with a clearance.” When asked to confirm that
the records check “wasn’t immediate,” Scott stated, “No, it takes
time to—to check those files.” During that time, two other

20150767-CA 6 2017 UT App 89
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officers arrived on the scene and began talking to Taylor. Indeed,
Scott testified that the other officers “had arrived prior to [him]
receiving that information” from dispatch. And when asked
directly if he had done “anything to stall that information [from]
getting to [him],” Scott answered, “No, sir.” Finally, Scott
testified he had not talked with the other officers while he was
waiting for dispatch and that, after dispatch cleared Taylor’s
information, “[he] was informed by [the other officer] that
consent was given by [Taylor] for a search.”2

¶15 It is settled law that a “seizure justified only by a police-
observed traffic violation . . . becomes unlawful if it is prolonged
beyond the time reasonably required to complete the mission of
issuing a ticket for the violation.” Rodriguez v. United States, 135
S. Ct. 1609, 1612 (2015) (brackets, citation and internal quotation
marks omitted). However, “[a]n officer’s inquiries into matters
unrelated to the justification for the traffic stop . . . do not
convert the encounter into something other than a lawful
seizure, so long as those inquiries do not measurably extend the
duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333 (2009);
see also Illinois v. Caballes, 543 U.S. 405, 407–08 (2005) (holding
that, so long as a lawful seizure was not “prolonged beyond the
time reasonably required to complete” the original reason for the
detention, “the shift in purpose” “from a lawful traffic stop into
a drug investigation” was not unlawful). The critical question,
then, is not whether the officer’s request for permission to search
Taylor’s vehicle was related to the purpose of the stop, but
whether that question prolonged—i.e., added time to—the stop.
See Rodriguez, 135 S. Ct. at 1616.

¶16 Given that the trial court found Officer Scott’s testimony
credible, as we have discussed, the evidence fully supports a
conclusion that the duration of Taylor’s detention was not
extended by police questioning. After pulling Taylor over, Scott

2. Taylor concedes in his reply brief that “the officers were
careful not to extend the duration” of the stop.

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began the process of running a license and registration check.
During the short time required to do so, other officers arrived.
One officer, after checking to make sure Scott was “okay and
safe,” introduced himself to Taylor and “asked him if there was
anything dangerous, illegal, of any kind in the vehicle.” Taylor
responded no, and then the officer “asked him if he minded if
[the police] searched the vehicle.” Taylor consented to that
request before the records check was complete.3

¶17 The trial court thus correctly concluded that the duration
of the stop was reasonable and the police did not measurably
extend it—Taylor consented to the search before the original
purpose of the traffic stop was complete. See Johnson, 555 U.S. at
333. And once consent was given, the search itself did not have
independent constitutional significance. See Muehler v. Mena, 544
U.S. 93, 100–01 (2005) (holding that “mere police questioning”
about immigration status during an otherwise lawful detention
does not constitute “a discrete Fourth Amendment event”
(citation and internal quotation marks omitted)); Florida v.
Bostick, 501 U.S. 429, 434–35 (1991) (stating that, “[e]ven when
officers have no basis for suspecting a particular individual, they
may generally ask questions of that individual,” including
“request[ing] consent to search his or her luggage”).

¶18 Finally, we turn to Taylor’s contention that he received
ineffective assistance of counsel during the suppression phase of
his case. He argues that his counsel performed deficiently in four
ways: (1) counsel’s failure “to question Officer Scott on his
testimony regarding the nature of the stop”; (2) counsel’s failure
“to question the officer regarding why other officers
immediately appeared on the scene of a routine traffic stop”; (3)
counsel’s failure “to question about the anonymous tip”; and (4)

3. In his opening brief Taylor concedes this point,
acknowledging that Officer Scott finished the records check “[a]t
some point after the other narcotics officer had obtained
consent.”

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counsel’s failure “to respond to additional briefing by the State
following the hearing on the Motion to Suppress.”

¶19 To succeed on a claim of ineffective assistance of counsel,
a defendant must show both “that counsel’s performance was
deficient” and “that the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). When
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 . . . to demonstrate actual prejudice.” Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986).

¶20 Here, Taylor has offered no analysis designed to
overcome the rule “that counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.” Strickland,
466 U.S. at 690. But even if we assume for argument’s sake that
defense counsel’s performance was deficient, Taylor still has not
persuaded us that he was prejudiced by it. Indeed, he does not
explain what evidence would have come to light had counsel
pursued the additional lines of questioning identified in his brief
as examples of his counsel’s deficiency. For instance, Taylor
baldly asserts that counsel “left unexplored the facts that would
have established [Scott’s] credibility was completely lacking.”
But he does not even hint at what those facts might have been.
Likewise, Taylor does not explain how the answers to questions
like “why [he] allowed other officers to question the Defendant
while he was running the background check” would have
convinced the trial court that the stop was illegal had trial
counsel asked them.

¶21 And finally, with regard to Taylor’s claim that trial
counsel was deficient in failing to file a brief after the
suppression hearing, Taylor fails to acknowledge trial counsel’s
own explanation to the trial court. Counsel stated that he did not
file a response to the State’s supplemental briefing on pretext
stops, essentially because he saw nothing to disagree with in the

20150767-CA 9 2017 UT App 89
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State’s position: “[T]hat’s why I didn’t file it. My research
showed that . . . the law is pretty clear that the fact that [the stop]
was a pretext does not preclude [the officer] from having a valid
stop.” Given that the law controlling pretext stops has been
settled in Utah since 1994, see State v. Lopez, 873 P.2d 1127, 1137
(Utah 1994) (stating that “the Fourth Amendment simply does
not require an officer’s state of mind to perfectly correspond to
his or her legally justified actions”), counsel’s failure to engage
with the State on that point could not have been prejudicial to
Taylor’s defense, see State v. Edgar, 2017 UT App 53, ¶ 10 (“[T]o
establish a claim of ineffectiveness based on an oversight or
misreading of law, a defendant bears the burden of
demonstrating why, on the basis of the law in effect at the time
of trial, his or her trial counsel’s performance was deficient.”
(citation and internal quotation marks omitted)). Accordingly,
Taylor has not demonstrated that his counsel was ineffective.

¶22 We thus conclude that neither the traffic stop nor the
ensuing consent search violated Taylor’s Fourth Amendment
rights and that Taylor has not shown that he received ineffective
assistance of counsel. Affirmed.

20150767-CA 10 2017 UT App 89