2017 UT App 53
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL JOHN EDGAR,
Appellant.
Opinion
No. 20150597-CA
Filed March 23, 2017
Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 141400828
Emily Adams, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN
concurred.
VOROS, Judge:
¶1 Michael John Edgar appeals his convictions for various
drug offenses arising from a traffic stop. He contends that his
trial counsel performed ineffectively in not challenging the
length of his detention. Specifically, he argues that the officers on
the scene unduly prolonged the traffic stop without reasonable
suspicion that drugs were in the car—in effect slow-walking the
business of the stop to buy time for a drug-sniffing dog to arrive.
We affirm.
State v. Edgar
BACKGROUND
¶2 On March 15, 2014 police pulled Edgar over for a traffic
violation at 7:35 p.m. and asked for his license, insurance, and
registration. The responding officer noticed that Edgar’s pupils
were constricted, his voice raspy, his hands shaky. The officer
further noticed that Edgar had a hard time getting his license out
of his wallet and that Edgar’s facial features ‚appeared to be
loose‛ and ‚relaxed.‛ At 7:39 the responding officer called for
backup to perform a DUI investigation and for a canine unit.
¶3 At 7:44 the backup officer arrived; he questioned Edgar
until 7:46. The backup officer also noticed that Edgar’s voice was
‚very raspy‛ and that ‚he appeared to be very nervous, he was
looking around,‛ and he was ‚very distracted.‛ Both officers
then left Edgar’s car to assist some pedestrians on the sidewalk
for about one minute. The responding officer then moved his
patrol car behind the backup officer so that the backup officer
could capture the field sobriety test on his dash camera. The
officers returned to Edgar’s car at 7:50 and explained to him why
they believed they needed to conduct field sobriety tests.
¶4 At 7:52 the canine unit arrived and the responding officer
briefed the dog handler on the situation. At 7:55 the dog handler
asked Edgar to step out of his car so the dog could perform the
sniff. The dog sniff took approximately two minutes; the dog
alerted on the passenger and driver side doors.
¶5 At 7:57 the backup officer began the field sobriety tests;
they ended at 8:01. The officers searched the car and found
drugs, drug paraphernalia, and a hatchet. The officers arrested
Edgar, searched him, and found more drugs.
¶6 A jury convicted Edgar of two counts of possession or use
of a controlled substance, second degree felonies; use or
possession of drug paraphernalia, a class A misdemeanor; and
unlawful possession of a dangerous weapon, a class A
misdemeanor.
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State v. Edgar
ISSUE AND STANDARD OF REVIEW
¶7 Edgar contends that his attorney was ineffective for not
moving to suppress the evidence found pursuant to an
unconstitutionally prolonged traffic stop. Specifically, Edgar
argues that his counsel should have argued that the police
unconstitutionally prolonged the detention ‚from the time they
formed reasonable suspicion that Edgar was driving impaired
until the time they performed field sobriety tests‛ in order for
the drug-sniffing dog to arrive.
¶8 ‚An ineffective assistance of counsel claim raised for the
first time on appeal presents a question of law.‛ State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162.
ANALYSIS
¶9 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); see
also State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. To
demonstrate prejudice, the defendant ‚must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.‛
Strickland, 466 U.S. at 694. ‚A reasonable probability is a
probability sufficient to undermine confidence in the outcome.‛
Id. Additionally, ‚there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the same
order or even to address both components of the inquiry if the
defendant makes an insufficient showing on one.‛ Id. at 697; see
also Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182 (‚Because
failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address
[the defendant’s] claims under either prong.‛).
¶10 ‚A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of
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State v. Edgar
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.‛ Strickland, 466 U.S. at 689.
Consequently, to ‚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.‛ State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993).
Counsel ‚cannot be faulted for failing to advance a novel legal
theory which has never been accepted by the pertinent courts.‛
State v. Love, 2014 UT App 175, ¶ 7, 332 P.3d 383 (citation and
internal quotation marks omitted).
¶11 The Fourth Amendment to the United States Constitution
guarantees the ‚right of the people to be secure . . . against
unreasonable searches and seizures.‛ U.S. Const. amend. IV.
‚[S]topping an automobile and detaining its occupants
constitutes a ‘seizure’‛ within the meaning of the Fourth
Amendment even where ‚the purpose of the stop is limited and
the resulting detention quite brief.‛ Delaware v. Prouse, 440 U.S.
648, 653 (1979). However, ‚what the Constitution forbids is not
all searches and seizures, but unreasonable searches and
seizures.‛ Terry v. Ohio, 392 U.S. 1, 9 (1968) (citation and internal
quotation marks omitted). ‚And in determining whether the
seizure and search were ‘unreasonable,’‛ we make a dual
inquiry. Id. at 19–20. First we examine ‚whether the officer’s
action was justified at its inception‛; then we examine whether
the officer’s action ‚was reasonably related in scope to the
circumstances which justified the interference in the first place.‛
Id. at 20.
¶12 During a lawful traffic stop, the ‚temporary seizure of
driver and passengers ordinarily continues, and remains
reasonable, for the duration of the stop.‛ Arizona v. Johnson, 555
U.S. 323, 333 (2009). ‚If, 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
20150597-CA 4 2017 UT App 53
State v. Edgar
suspicion.‛ State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650 (citing
Johnson, 555 U.S. at 332–33).
¶13 The Supreme Court has held that ‚a dog sniff conducted
during a lawful traffic stop does not violate the Fourth
Amendment’s proscription of unreasonable seizures.‛ Rodriguez
v. United States, 135 S. Ct. 1609, 1612 (2015) (citing Illinois v.
Caballes, 543 U.S. 405 (2005)). However, the Fourth Amendment
does not allow ‚a dog sniff conducted after completion of a
traffic stop.‛ Id. Accordingly, ‚a police stop exceeding the time
needed to handle the matter for which the stop was made
violates the Constitution’s shield against unreasonable seizures.‛
Id. ‚A seizure justified only by a police-observed traffic
violation, therefore, ‘become[s] unlawful if it is prolonged
beyond the time reasonably required to complete th[e] mission’
of issuing a ticket for the violation.‛ Id. (alterations in original)
(quoting Caballes, 543 U.S. at 407). And if ‚an officer can
complete traffic-based inquiries expeditiously, then that is the
amount of ‘time reasonably required to complete [the stop’s]
mission.’‛ Id. at 1616 (alteration in original) (quoting Caballes, 543
U.S. at 407). However, independent reasonable suspicion of
criminal activity may justify detaining a suspect beyond
completion of the traffic infraction for the purpose of conducting
a dog sniff. Id.
¶14 Here, Edgar concedes both that the officer had reasonable
suspicion to pull him over and that, based on the officer’s
observations during the stop, the officer had reasonable
suspicion that Edgar was drug-impaired. At that point, the
Fourth Amendment requires officers to complete their traffic-
based inquiries expeditiously. However, Edgar contends that,
rather than acting expeditiously to complete their inquiries, the
officers dragged their feet in performing field sobriety tests until
the drug-sniffing dog arrived. This delay, Edgar maintains,
violated Fourth Amendment standards. And he argues that
because ‚the impermissibility of prolonging a traffic detention
without reasonable suspicion was well-established in several
Utah cases before Edgar’s trial began,‛ his trial counsel ‚should
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State v. Edgar
have been aware of these precedents and their application to this
case.‛
¶15 The State responds that the officers did not unduly
prolong the stop pending the arrival of the drug dog but acted
with appropriate diligence to confirm or dispel their suspicion
that Edgar was drug-impaired. In the alternative, the State
argues that in any event the officers did not prolong Edgar’s
detention without reasonable suspicion—that the officer’s
observation of Edgar’s apparently drug-impaired state
supported reasonable suspicion that Edgar might be
transporting drugs. The State maintains that this reasonable
suspicion allowed the officers to temporarily continue to detain
Edgar until the drug dog arrived to investigate the possibility
that Edgar’s car contained drugs. In response, Edgar denies that
the officer’s observations of his apparently drug-impaired state
supported reasonable suspicion that would permit them to
pursue the possibility that he had drugs in the car. For that they
required the dog sniff—hence the officers’ need to slow-walk the
investigation of his impairment, including the field sobriety
tests.
¶16 We agree with the State that Edgar’s counsel did not
perform deficiently under the then-current state of the law.
Edgar ‚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.‛ See State v. Dunn, 850 P.2d 1201,
1228 (Utah 1993). Edgar is correct that ‚the impermissibility of
prolonging a traffic detention without reasonable suspicion was
well-established in several Utah cases before Edgar’s trial
began.‛ What was not well-established, though—and still is
not—was that evidence of drug impairment does not support a
reasonable suspicion that drugs were in the vehicle. The law on
this issue is not settled in Utah, and non-Utah case law supports
the proposition that driving while impaired may support a
reasonable suspicion that the driver is transporting contraband
in the vehicle. Because Edgar cannot demonstrate that the law in
effect at the time of trial supports his contrary proposition, his
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State v. Edgar
claim of ineffective assistance of counsel for failure to file a
motion to suppress on that ground fails.
¶17 Edgar has identified no controlling case law. Our
supreme court has held that the presence of drug paraphernalia
in a defendant’s car, ‚in addition to the driver’s apparent
impairment, gave rise to reasonable suspicion that [the
defendant] was using or possessed illegal drugs.‛ State v. Simons,
2013 UT 3, ¶ 23, 296 P.3d 721. But our supreme court has not
resolved whether evidence of drug impairment alone supports
reasonable suspicion justifying further investigation. Judicial
decisions from other jurisdictions suggest that the appearance of
drug impairment, without more, may support reasonable
suspicion that a driver has drugs in the car. See, e.g., United States
v. Donnelly, 475 F.3d 946, 952–53 (8th Cir. 2007) (holding that
bloodshot, glazed-over eyes, apparent nervousness, and other
signs of impairment, combined with the absence of alcohol-
based impairment, ‚formed the basis for a reasonable suspicion
that [the defendant] may have been transporting and using
drugs‛); United States v. Neeman, No. 99-3666, 2000 WL 489581, at
*1 (8th Cir. Apr. 26, 2000) (per curiam) (holding that red, watery
eyes provided reasonable suspicion to search a defendant’s
vehicle for drugs); State v. Kaleohano, 56 P.3d 138, 148 (Haw.
2002) (holding that when an officer failed to detect an odor of
alcohol emanating from the driver’s person, it was reasonable
for him to infer that the driver’s impairment could be drug-
related and that the driver’s vehicle might contain drugs); People
v. Redding, No. 4-10-0263, 2011 WL 10481819, at *5 (Ill. App. Ct.
Oct. 12, 2011) (holding that evidence that the defendant’s eyes
were glassy and bloodshot and did not dilate when the officer
shined her light into them, combined with knowledge of a prior
drug offense gave ‚rise to the reasonable inference defendant
was operating a motor vehicle while under the influence of a
drug‛); Taylor v. Commonwealth, No. 2015-CA-000337-MR, 2016
WL 3574606, at *2 (Ky. Ct. App. June 24, 2016) (holding that
falling asleep behind the steering wheel of a car, combined with
other signs of impairment, gave rise to ‚a reasonable suspicion
that [the defendant] was driving under the influence of drugs or
20150597-CA 7 2017 UT App 53
State v. Edgar
alcohol, and consequently, a reasonable suspicion that the
vehicle harbored evidence of the crime of arrest‛); State v. Cook,
83 So. 3d 1259, 1260 (La. Ct. App. 2012) (holding that the
‚observed impairment of the driver . . . while clearly involving
alcohol, raises the considerable possibility for the involvement of
other drugs used by the defendant,‛ and it was ‚therefore
reasonable to believe that evidence of the crime of
arrest . . . would be located in the vehicle‛); State v. Malmquist,
No. A14-2017, 2015 WL 7356579, at *3 (Minn. Ct. App. Nov. 23,
2015), (holding that because the defendant admitted to using
drugs the previous day and exhibited signs of impairment that
suggested recent drug use, the deputies had reasonable
suspicion to suspect that his vehicle might contain drugs or drug
paraphernalia).
¶18 We cannot conclude that Edgar’s trial counsel was
ineffective for not filing a motion to suppress based on an
unresolved proposition of law; ‚counsel cannot be faulted for
failing to advance a novel legal theory which has never been
accepted by the pertinent courts.‛ See State v. Love, 2014 UT App
175, ¶ 7, 332 P.3d 383 (alteration, citation, and internal quotation
marks omitted).
¶19 Edgar thus cannot satisfy ‚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.‛ See Dunn, 850
P.2d at 1228. Accordingly, he cannot show that his counsel’s
performance was deficient, and his claim for ineffective
assistance of counsel necessarily fails. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
CONCLUSION
¶20 For the foregoing reasons, the judgment of the trial court
is affirmed.
20150597-CA 8 2017 UT App 53