State v. Beames

2022 UT App 61

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
RACHEL NICOLE BEAMES,
Appellant.

Opinion
No. 20200699-CA
Filed May 12, 2022

Third District Court, West Jordan Department
The Honorable William K. Kendall
No. 191401971

Emily Adams and Benjamin Miller,
Attorneys for Appellant
Simarjit S. Gill and Jennifer K. Zeleny,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGE RYAN M. HARRIS concurred. JUDGE MICHELE M.
CHRISTIANSEN FORSTER dissented, with opinion.

ORME, Judge:

¶1 Rachel Nicole Beames appeals her convictions for
possession of a controlled substance and possession of drug
paraphernalia. She argues that her trial counsel was ineffective for
not seeking to suppress drug evidence located as a result of a
drug-sniffing dog’s search of her vehicle. We agree and reverse.
 State v. Beames

BACKGROUND 1

¶2 In April 2019, a police officer (Officer) saw a car “parked
behind [a] Walmart in kind of a strange area where no one could
see it.” Officer went to “observe” the car and noticed two people
inside it, one of whom was Beames. He approached to speak with
them. Officer asked for their identification, which they provided.

¶3 Officer then left, but a driver license check revealed both
licenses to be invalid, so Officer “pulled back around in the
parking lot to make sure they didn’t leave and drive on invalid
licenses.” At this point, Officer noted that Beames was in the
driver’s seat. She then drove the car to a different spot in the
parking lot, but Officer did not initiate a stop because Beames
never left the parking lot. While performing further records
checks on Beames and her passenger, who was later revealed to
be her boyfriend (Boyfriend), Officer discovered that Boyfriend
“[h]ad been previously trespassed from all Walmarts
worldwide.” Officer decided to investigate and again initiated
contact with Beames and Boyfriend. At some point, other officers
arrived on the scene.

¶4 Officer “asked [Beames] to stay in the vehicle,” but he
asked Boyfriend to exit the car, which Boyfriend did
“voluntarily.” Beames then “stepped out of the vehicle as well”
after another officer (Handler Officer), who had also recently
arrived on the scene with his drug-sniffing dog, “ha[d] her get out
of the vehicle.” Dashcam footage of the encounter shows Beames
and Boyfriend outside the vehicle. The doors of the vehicle were
open, but the footage does not begin early enough to reveal how
or why the doors were left open. While Officer was talking to
Boyfriend, and another officer was talking to Beames, Officer

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

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 State v. Beames

asked Handler Officer and his dog “if he’d perform a sniff of the
vehicle.” Handler Officer then brought Timber, a drug-sniffing
dog, to the “front driver’s side wheel” and, expecting only a
perimeter sniff, gave Timber “the search command.” But Timber,
while still on a leash and seemingly before he made any sort of
alert or indication, “immediately jump[ed] in the car.” Although
Handler Officer did not “tell him to do it,” Timber went “right on
in there and he starts fiercely sniffing” and then exited the car on
the passenger side. Timber was in the vehicle this first time for a
total of only seven seconds. Handler Officer, standing near the
driver’s side door where the dog had entered, then ordered
Timber to “come here,” and Timber returned to the inside of the
car through the passenger’s side door, whereupon Handler
Officer shut the driver’s door. Handler Officer then moved
around the car to the passenger’s side and stood by the open door
looking into the car.

¶5 Timber, who was in the car for nearly a full minute this
time, then indicated the possible presence of drugs, and Handler
Officer thereafter searched the car. During this search, Handler
Officer found a makeup box containing a glass pipe and
methamphetamine in a compartment on the passenger’s side of
the car. After Handler Officer announced what he found, Officer
began to arrest Boyfriend. Beames asked why Boyfriend was
being arrested and told Officer, “Whatever it is, it’s mine.” When
Officer continued to arrest Boyfriend, she protested: “I’m telling
you that it’s mine, so why are you still arresting him?” Officer
responded that he was continuing with the arrest because he
found the box by where Boyfriend’s feet would have been when
he was seated in the car. Beames responded, “Wasn’t it in a
women’s frickin’ eyelash thing?”

¶6 Due to Beames’s “relatively uncooperative” attitude and
her statements that the box was hers, Officer also placed her under
arrest. Officer then spoke with Beames further, and she stated that
“she was aware of the items being in the car, however, they
weren’t hers, she was just saying they were” to protect Boyfriend.

20200699-CA 3 2022 UT App 61
 State v. Beames

¶7 The State charged Beames with possession of a controlled
substance and possession of drug paraphernalia. 2 Beames’s
appointed counsel (Trial Counsel) did not seek to suppress the
drug evidence found during the search, and after the court bound
Beames over following a preliminary hearing, the case proceeded
to trial.

¶8 At trial, Officer and Handler Officer testified consistent
with the facts previously laid out. The State also presented the
dashcam footage from a police car showing Timber searching the
car and bodycam footage in which the statements Beames made
when Boyfriend was being arrested can be heard. Beames testified
in her own defense. She stated that the drugs were not hers and
that she said that they were only to help Boyfriend, who was on
parole at the time. She also testified that she “asked if the drugs
were found in like an eyelash thingy or eyelash container”
because her sister, who uses drugs, kept them in such a container
and had driven the car earlier that day. Beames stated that she
was unaware that her sister left drugs in the car.

¶9 The jury subsequently found Beames guilty as charged.
Beames appeals.

ISSUE AND STANDARD OF REVIEW

¶10 Beames asserts that Trial Counsel was ineffective for failing
to seek suppression of the drug evidence as the fruit of an
impermissible search under the Fourth Amendment. “When 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
decide whether the defendant was deprived of the effective

2. There is no information in the record regarding any charges
filed against Boyfriend.

20200699-CA 4 2022 UT App 61
 State v. Beames

assistance of counsel as a matter of law.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

ANALYSIS

¶11 An ineffective assistance of counsel claim requires a
defendant to establish both that (1) “counsel’s performance was
deficient” and (2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish deficient performance, i.e., that trial counsel’s actions
“fell below an objective standard of reasonableness,” the
defendant must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 688–89. Indeed, “even if an [act or]
omission is inadvertent and not due to a purposeful strategy,
relief is not automatic.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871
(quotation simplified). Instead, “even if a court concludes that
counsel made an error, the ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350.

¶12 To establish prejudice, “a defendant must present
sufficient evidence to support a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Archuleta v. Galetka, 2011 UT 73, ¶ 40,
267 P.3d 232 (quotation simplified). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. And when a defendant asserts that his
counsel performed deficiently in failing to bring a Fourth
Amendment claim, “in order to demonstrate actual prejudice,”
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).

20200699-CA 5 2022 UT App 61
 State v. Beames

¶13 In Kimmelman, the United States Supreme Court did not
specifically explain what it meant by “meritorious” in analyzing
an ineffective assistance of counsel claim, but the structure of the
quoted language suggests that “meritorious” does not mean that
the claim was necessarily guaranteed to succeed. Rather, it
suggests that the claim had enough merit to it to lead to the
conclusion that there is “a reasonable probability that the verdict
would have been different,” which is the ultimate inquiry under
Strickland. Id. And a few years later, in Lockhart v. Fretwell, 506 U.S.
364 (1993), Justice Stevens noted, “Kimmelman at one point refers
to the necessity for a ‘meritorious’ Fourth Amendment claim,”
which “represents no more than straightforward application of
Strickland’s outcome-determinative test for prejudice.” Id. at 380
n.6 (Stevens, J., dissenting). Justice Stevens then stated,

Simply put, an attorney’s failure to make a Fourth
Amendment objection will not alter the outcome of
a proceeding if the objection is meritless, and hence
would not be sustained. Nothing in Kimmelman
suggests that failure to make an objection supported
by current precedent, and hence likely to be sustained,
would amount to anything less than ineffective
assistance.

Id. (emphasis added). We agree with Justice Stevens’s view and
determine that Kimmelman’s use of the word “meritorious” does
not add an additional burden on a defendant to prove that the
motion would certainly have been granted. We read it to
simply mean that the defendant must show that the Fourth
Amendment motion would likely have been successful, which is
consistent with the “straightforward application of Strickland’s
outcome-determinative test for prejudice.” Id.

¶14 This holding is also consistent with our Supreme Court’s
reading of “meritorious” in Winward v. State, 2012 UT 85, 293 P.3d
259, albeit in a slightly different ineffective assistance of counsel
context. In that case, the Court addressed a threshold question of

20200699-CA 6 2022 UT App 61
 State v. Beames

whether a defendant’s ineffective assistance of counsel claim,
brought pursuant to the Post-Conviction Remedies Act, contained
“a meritorious defense” necessary to meet an exception to certain
procedural requirements contained in the Act. Id. ¶ 18. The Court
noted that “[t]o establish a meritorious defense based on the
ineffective assistance of counsel,” the defendant does not bear the
additional burden to prove that the defense certainly would have
succeeded, but rather the defendant simply had “to prove both
that he received deficient performance from his trial counsel, and
that this deficient performance prejudiced the outcome of his
trial.” Id. ¶ 22. This framework is consistent with Utah’s
ineffective-assistance jurisprudence, which does not require that
a defendant pursuing an ineffective assistance claim establish that
the outcome would certainly have been different, but only that
there is “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Archuleta, 2011 UT 73, ¶ 40 (emphasis added)
(quotation otherwise simplified).

¶15 Finally, this understanding of “meritorious” is consistent
with the term’s use in other contexts, where it does not mean a
sure winner but only something with a solid basis in the facts and
law. See Gillman v. Gillman, 2021 UT 33, ¶ 41, 493 P.3d 655 (noting
that a “meritorious defense,” as part of an analysis of whether a
district court should have set aside a default judgment for good
cause under rule 55 of the Utah Rules of Civil Procedure, is a
defense that “is good at law so as to give the factfinder some
determination to make” and “does not mean the court must
consider whether the defendant will ultimately succeed on the
merits”) (quotation simplified); Menzies v. Galetka, 2006 UT 81,
¶ 108, 150 P.3d 480 (holding that in the context of a motion to set
aside judgment under rule 60(b) of the Utah Rules of Civil
Procedure, “a defense is sufficiently meritorious if . . . it is entitled
to be tried”) (emphasis added) (quotation otherwise simplified);
Bresee v. Barton, 2016 UT App 220, ¶ 49, 387 P.3d 536 (stating that
in the context of bad-faith attorney fees awarded by statute,
meritorious claims are those that contain both “a factual basis”

20200699-CA 7 2022 UT App 61
 State v. Beames

and “a theoretical basis in law for those claims”) (emphasis added)
(quotation otherwise simplified).

¶16 In this case, Beames asserts that Trial Counsel was
ineffective for not seeking to suppress the drug evidence found in
the car because the search of her car was constitutionally
impermissible. Specifically, she contends that because Timber
“did not have probable cause to enter the car, this search violated
the Fourth Amendment, and the fruits from that search . . . should
have been suppressed.”

¶17 Because Beames presents her claim in the context of an
ineffective assistance of counsel claim, and cannot directly
challenge the admission of the evidence, we must first analyze,
based on the record before us, whether a motion to suppress the
evidence on Fourth Amendment grounds appears meritorious. 3

3. Because Trial Counsel never filed a motion to suppress, we do
not have the benefit of testimony from an expert on drug-sniffing
dogs regarding when and how they alert to or indicate the
presence of drugs. Rather, we have only Handler Officer’s
testimony from the preliminary hearing and from trial that
explains how Timber alerts or indicates, but not in the same detail
typical of such cases. See State v. Ruiz, 2021 UT App 94, ¶¶ 7–15,
497 P.3d 832. Thus, on this record, we cannot say with certainty
that a motion to suppress would have succeeded because we do
not know what other evidence might have been presented if Trial
Counsel had moved to suppress the evidence in a timely fashion.
The dissent latches on to this and asserts, “Even though we have
testimony from Handler Officer about Timber’s alerts and a
general description of Timber’s actions during the sniff, Handler
Officer was never asked if Timber alerted during his first entry
into the vehicle,” and it is not “this court’s place to presume that
constitutional error occurred merely because there is no definitive
evidence on the particular factual issue that is determinative
here.” See infra ¶ 43. The dissent then posits that, “[a]ccordingly,
(continued…)

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 State v. Beames

We proceed in this manner because if the motion would have
failed in any event, Beames has no ground to complain that Trial
Counsel was ineffective for failing to bring it. See State v. Makaya,
2020 UT App 152, ¶ 9, 476 P.3d 1025 (“A futile motion necessarily
fails both the deficiency and prejudice prongs of the Strickland

it was Beames’s obligation to provide an adequate record on
appeal to demonstrate that Timber did not quickly alert when he
first entered the vehicle to show that she would have prevailed
had a motion to suppress been filed.” See infra ¶ 44.
First, we disagree with the dissent’s characterization of the
record as inadequate. Here, we have the dashcam video as well as
Handler Officer’s testimony and, while it is true that Handler
Officer’s testimony was not given in the context of a motion to
suppress, his testimony (supplemented by the video) did detail,
rather specifically, the actions Timber took and his eventual alert.
And it seems unlikely that Handler Officer would speak in terms
of Timber alerting only when he re-entered the car if, in Handler
Officer’s judgment, he alerted during his brief initial entry as well.
Experience suggests that a drug-sniffing dog’s handler who
effected a successful search for drugs would routinely want to
establish that he had probable cause to support the search at the
earliest possible point in time. Second, we do not “presume that
constitutional error occurred,” as the dissent asserts. Rather, we
simply determine that Beames has shown, based on the adequate
record before us—a record that contains Handler Officer’s clear
testimony that Timber alerted only when he entered the car the
second time and video footage that supports that assertion—that
a Fourth Amendment claim here was reasonably likely to have
succeeded. This is a far cry from presuming constitutional error
and is in line with the framework of an ineffective assistance of
counsel claim, under which we do not need to say for certain that
the motion would have succeeded. In this context, it is sufficient
to determine that the motion appears meritorious, i.e., that it was
“likely to be” granted, see Lockhart v. Fretwell, 506 U.S. 364, 380 n.6
(1993) (Stevens, J., dissenting) (emphasis added); supra ¶¶ 13–15,
and that Trial Counsel was unreasonable in not pursuing it.

20200699-CA 9 2022 UT App 61
 State v. Beames

analysis because it is not unreasonable for counsel to choose not
to make a motion that would not have been granted, and forgoing
such a motion does not prejudice the outcome.”). See also
Kimmelman, 477 U.S. at 375 (noting a defendant asserting
ineffective assistance of counsel for counsel’s failure to bring a
Fourth Amendment claim must “prove that his Fourth
Amendment claim is meritorious”). But even if the motion
appears meritorious, it does not automatically follow that counsel
was ineffective for not pursuing it. Rather, we must then “assess
whether counsel may have had a sound strategic reason for not”
moving to suppress, mindful that we “must always base [our]
deficiency determination on the ultimate question of whether
counsel’s act or omission fell below an objective standard of
reasonableness.” State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871. See
State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350 (“[T]he ultimate
question is always whether, considering all the circumstances,
counsel’s acts or omissions were objectively unreasonable.”).

I. Timber’s Search

¶18 The Fourth Amendment protects “an individual’s right
against unreasonable searches and seizures,” State v. Rigby, 2016
UT App 42, ¶ 7, 369 P.3d 127, safeguarding “[t]he right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures” by the government,
U.S. Const. amend. IV. And “because warrantless searches are per
se unreasonable, police officers generally need a warrant to search
a place in which a person has a reasonable expectation of
privacy.” Rigby, 2016 UT App 42, ¶ 8 (quotation simplified).

¶19 “There are, of course, exceptions to the general rule, one of
which is the so-called automobile exception.” Id. (quotation
simplified). This exception permits police officers to search an
automobile if it “is readily mobile and probable cause exists to
believe it contains contraband.” Pennsylvania v. Labron, 518 U.S.
938, 940 (1996). And as relevant to the case at hand, because “[a]
drug dog is an instrumentality of the police,” its actions in

20200699-CA 10 2022 UT App 61
 State v. Beames

searching vehicles are also “governed by the Fourth
Amendment.” United States v. Pulido-Ayala, 892 F.3d 315, 318 (8th
Cir. 2018). Nonetheless, “a drug-trained dog may walk the
perimeter of a lawfully detained vehicle even if police have no
reasonable suspicion that the vehicle occupants are engaged in
drug-related activity so long as the dog sniff search does not
extend the duration of the stop.” 4 State v. Baker, 2010 UT 18, ¶ 29,
229 P.3d 650 (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)). But
if a dog enters a vehicle “prior to the establishment of probable
cause,” its subsequent search “may raise Fourth Amendment
concerns because people have a reasonable expectation of privacy
in the interior of their automobiles.” State v. Ruiz, 2021 UT App
94, ¶ 19, 497 P.3d 832 (quotation simplified). A drug dog entering
a vehicle without probable cause, however, is not a per se
violation of the Fourth Amendment. Rather, if a drug dog enters
a vehicle before probable cause is established, its ensuing search
of the vehicle can be permissible under the Fourth Amendment if
“(1) the dog’s leap into the car was instinctual rather than
orchestrated and (2) the officers did not ask the driver to open the
point of entry, such as a hatchback or window, used by the dog.”
Id. ¶ 20 (quoting United States v. Vazquez, 555 F.3d 923, 930 (10th
Cir. 2009)).

¶20 These two considerations go hand in hand. “First,
‘instinctive’ implies the K-9 enters the car without assistance,
facilitation, or other intentional action by its handler.” Id. ¶ 21
(quotation simplified). “A drug-sniffing dog’s instinctive actions
do not violate the Fourth Amendment where there is no evidence
that the police asked a suspect to open the vehicle so the dog could
jump in or any evidence the police handler encouraged the dog to
jump in the car.” Id. (quotation simplified). Second, how the dog’s
access point came to be open to allow for the dog’s entry is also
relevant. For example, “the fact that the passenger window of the
vehicle is open, creating an opportunity for the dog to breach the

4. Beames does not contend that Timber’s search extended the
duration of the encounter.

20200699-CA 11 2022 UT App 61
 State v. Beames

interior of the vehicle, does not render a search unlawful,
provided that the officer does not open the window, order the
window be opened, or order the window to remain open.” Id. ¶ 22
(quotation simplified). But if the officer orchestrates the opening
of a point of entry to create “the opportunity for a drug-sniffing
K-9 to enter a vehicle, that entry violates the Fourth Amendment
because the officer facilitated the K-9 sniff of the vehicle’s
interior.” Id. (quotation simplified).

¶21 Therefore, we first consider whether there was probable
cause even before Timber initially entered the car that would have
allowed Timber’s entry. Holding that there was no probable cause
at the outset, we then consider whether Timber’s actions while in
the car the first time—given that it is fairly obvious Timber’s first
entry was instinctual and not directed by Handler Officer—
provided probable cause for Timber to re-enter the car.
Concluding that, based on the record before us, Timber’s actions
while in the car the first time do not appear to have provided
probable cause, we next consider whether Timber instinctually
re-entered the car or was directed to re-enter by Handler Officer.
We then hold that Timber did not instinctually re-enter the car on
the occasion when he indicated the presence of drugs, and on this
basis alone, there is a reasonable probability that the search was
unconstitutional. See United States v. Ayala, 446 F. App’x 78, 80
(10th Cir. 2011) (“Officers may not, however, rely on a dog’s alert
. . . if they encourage the dog to enter [the vehicle].”).

A. Probable Cause

¶22 “Determinations of whether probable cause exists require
a common sense assessment of the totality of the circumstances
confronting the arresting or searching officer. Probable cause is
more than suspicion but less than certainty.” State v. Spurgeon, 904
P.2d 220, 226 (Utah Ct. App. 1995) (internal citation omitted).

¶23 Here, there was no probable cause at the outset that
permitted the officers to search the interior of the car because they

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had no reason to believe that a search would uncover contraband
or evidence of a crime. 5 See Pulido-Ayala, 892 F.3d at 318 (“Police
ordinarily cannot search the interior of an automobile unless they
have probable cause to believe that the vehicle contains
contraband or other evidence of a crime.”). Officer initially
investigated the car because it was in “a strange area where no
one could see it.” After interacting with Beames and Boyfriend,
Officer discovered that both their driver licenses were invalid,
and he “pulled back around in the parking lot to make sure they
didn’t leave and drive on invalid licenses.” Officer then initiated
contact again after he discovered that Boyfriend “[h]ad been
previously trespassed from all Walmarts worldwide” and, given
their proximity to a Walmart, he decided to investigate. There is
no hint in any of this that Officer reasonably suspected the
presence of illegal drugs in the car.

¶24 Instead, the record established that Officer investigated
only because both occupants of the car had invalid driver licenses
and Boyfriend might have been trespassing at Walmart. This
contrasts with Utah appellate decisions holding, for example, that
police had probable cause to search for drugs because there
were drugs or paraphernalia in open view, see State v. Gurule, 2013
UT 58, ¶ 30, 321 P.3d 1039 (“Because [the officer] did not perform

5. The State contends that there is an “absence of evidence”
regarding whether probable cause existed at the outset.
Consequently, the State asserts, Beames “cannot overcome the
strong presumption that Trial Counsel acted reasonably.”
Although this is a sound legal concept, it simply does not apply
here. There is plenty of evidence before us on which we can base
an assessment about whether the officers had probable cause at
the outset. We have the testimony of both officers and video
footage of the search. Officer testified about his reasoning for
investigating, and Handler Officer testified in detail about the
actions of Timber. Thus, between that testimony and the video,
there is clearly enough record evidence for us to evaluate whether
there was probable cause to support a search from the outset.

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 State v. Beames

an invasive search of the vehicle, but rather only looked at
what he could see in plain-view, his plain-view search was
proper.”), or because a scent of drugs was present, see State v.
Wright, 1999 UT App 86, ¶ 10, 977 P.2d 505 (“It is undisputed here
that [the officer] smelled marijuana before he searched. That
fact alone gave him probable cause to search[.]”). There was
nothing of the kind in this case to suggest that the car contained
evidence that a drug offense “has been or is being committed.” See
State v. Dorsey, 731 P.2d 1085, 1088 (Utah 1986) (quotation
simplified).

¶25 Additionally, the record before us contains no indication
that Timber’s initial behavior outside the car could have supplied
probable cause for officers to search the inside of the car. When
Timber was given a command to search the exterior perimeter,
he did not alert to or indicate the presence of drugs before he
entered the car for the first time. Rather, he almost immediately
jumped into the vehicle on his own instinct and not as
commanded. Cf. United States v. Vazquez, 555 F.3d 923, 929–30
(10th Cir. 2009) (holding that, because a drug dog first alerted on
the outside of the car to the presence of drugs, its entry and
discovery of drugs inside the car did not violate the Fourth
Amendment).

¶26 This is not the end of our probable cause analysis, however,
because the State contends that even if the officers did not have
probable cause at the outset, Timber instinctually entered the car
the first time and then gave an “earl[y] indication” to the presence
of drugs. This, the State posits, provided Handler Officer with
probable cause to direct Timber to re-enter the car. The State bases
this argument on Handler Officer’s preliminary hearing
testimony, asserting that his testimony proves that Timber gave
an alert or indication the first time he was in the car. We disagree.
Based on our review of Handler Officer’s preliminary hearing
testimony, his trial testimony, and the dashcam footage, the
record before us contains no evidence that Timber alerted to or
indicated the presence of drugs until after he re-entered the car.

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 State v. Beames

¶27 At trial, Handler Officer testified that Timber alerts to
drugs by doing a “head check a couple of times,” moving his head
back and forth and “working his way into his scent.” Handler
Officer also testified that he taught Timber “his indication, which
is his final response,” and which Timber provides in a “passive”
manner by “sit[ting] down” or by “star[ing] at the source of the
odor.” Handler Officer then testified, with our emphasis, that
when he gave Timber the command to search the exterior of the
car, Timber “immediately jump[ed] in the car” and “start[ed]
fiercely sniffing.” Timber then promptly exited the car and, only
after Handler Officer instructed him to return, did Timber come
“back on in the . . . passenger side” and “[a]t this point . . . he’s now
sitting in a positive indication.” At the preliminary hearing,
Handler Officer testified that he “started [Timber] on a front
driver side fender. He pulled me into the car, and I had to drop
his leash he went into the car so fast. At that point, I went around
to the passenger side to get him and he was sitting in a positive
indication on the passenger floorboard.” This testimony, when
combined with the dashcam footage showing Timber leaving the
car seven seconds after first entering—with Handler Officer
coming to the passenger side only after Timber re-entered the
car—and Timber then lingering some fifty-one seconds on his
second entry, provides enough evidence that Timber indicated
the drugs only on his second entry into the car, and not his first.
This is consistent with Handler Officer’s trial testimony that it was
when Timber came “back on in the . . . passenger side” that
Timber sat “in a positive indication.” Thus, nothing in the record
before us supports the notion that Handler Officer had probable
cause to direct Timber back into the car based on any sort of alert
or indication during Timber’s first entry.

¶28 Having apparently not indicated or alerted during his first
entry into the car, the only act Timber did here that might bear on
probable cause was to “fiercely sniff[]” for drugs. This, however,
did not provide probable cause because, based on Handler
Officer’s testimony, fiercely sniffing is not how Timber alerts to or
indicates drugs. For probable cause to be established based on a

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drug dog’s search, the dog must alert or indicate—fiercely
sniffing is not enough. See State v. Perkins, 2019 UT App 117, ¶ 21,
446 P.3d 145 (holding that “the dog alert on the truck . . .
established probable cause”) (emphasis added); United States v.
Parada, 577 F.3d 1275, 1282 (10th Cir. 2009) (“Our other dog alert
cases do not specify whether the dog’s response was a general
alert or a final indication; we have simply noted that the dog’s
‘alert’ provides probable cause.”); Vazquez, 555 F.3d at 929 (“Once
[the drug dog] alerted to the vehicle’s front and rear bumpers, the
officers had probable cause to search the car and its contents.”)
(emphasis added). If we were to hold otherwise, we would
impermissibly expand justification for warrantless searches of
automobiles simply because a drug-sniffing dog is brought in and
begins to sniff vigorously for drugs—which, of course, is part of
its job description—but does not alert or indicate.

B. Timber’s Re-entry Into the Car

¶29 Beames asserts that Handler Officer’s “words and actions
facilitated the dog’s search inside the car” and he “encourag[ed]
the dog to re-enter the car.” We agree.6

6. For purposes of our analysis, we assume that Timber’s initial
entry into the vehicle was instinctual and not facilitated by the
officers. But because Timber left the car in seven seconds and did
not appear to alert to or indicate the presence of drugs during his
brief first entry, this instinctual leap does not render the eventual
discovery of drugs in this case permissible because the re-entry
now becomes the critical point in the analysis. Thus, we view
Timber’s initial exit from the vehicle as a break requiring a restart
of the analysis to determine whether Timber’s re-entry was
instinctual rather than orchestrated. If we were to hold otherwise,
a drug dog could instinctually enter a vehicle and not alert or
indicate, then exit and be ready to be placed back in its kennel
only for the handling officer to have second thoughts and direct
(continued…)

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 State v. Beames

¶30 Here, after first entering the car and “fiercely sniffing,”
Timber exited the car in seven seconds, without appearing to alert
or indicate, and he seemed to be headed around the back of the
car to reunite with Handler Officer. But Handler Officer altered
that chain of events. Handler Officer, who was still standing on
the driver’s side of the car, ordered Timber to “come here.”
Timber complied with that command by re-entering the car via
the open passenger door. Once Timber re-entered the car, Handler
Officer closed the driver’s door and moved to stand beside the
open passenger’s door, effectively confining Timber in the car for
Timber to conduct a search. After this re-entry, with Timber
remaining in the car for nearly a minute, Timber indicated the
presence of drugs.

¶31 Because Timber’s second entry into the car was
orchestrated by Handler Officer, who directed Timber back into
the car and blocked his exit, Timber’s re-entry into the car cannot
be considered instinctual. Thus, Timber’s presence in the car
needed to be justified by probable cause to search the car, and here
it was not. Accordingly, the officers’ search of the vehicle,
facilitated by Timber’s nose, was contrary to constitutional
principles. See State v. Ruiz, 2021 UT App 94, ¶ 20, 497 P.3d 832;
United States v. Ayala, 446 F. App’x 78, 80 (10th Cir. 2011) (holding

the dog back into the vehicle to continue sniffing for drugs. If the
dog then alerted to or indicated drugs during this second attempt,
in this hypothetical scenario that search would be allowed. This
conclusion, however, would run afoul of the Fourth Amendment.
The dog’s failure to alert to or indicate drugs after instinctually
entering the vehicle the first time would fail to provide probable
cause and, without probable cause, the dog could re-enter only so
long as it did so instinctually again and not at the behest of its
handler. See State v. Ruiz, 2021 UT App 94, ¶ 20, 497 P.3d 832.
Thus, we hold that when a drug dog enters a vehicle instinctively,
but then exits on its own accord without alerting to or indicating
drugs, any re-entry must be analyzed anew.

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 State v. Beames

that without probable cause, a drug dog’s search is impermissible
if officers “encourage the dog to enter” the vehicle).

C. Conclusion

¶32 In summary, based on the record before us, a motion to
suppress the evidence discovered in the vehicle appears
meritorious—that is, it would have had a reasonable likelihood of
success. The record contains no indication that the officers had
probable cause at the outset or during Timber’s first entry into the
car and, as a result, for the search following Timber’s re-entry to
be permissible, Handler Officer must not have orchestrated it and
Timber’s re-entry into the car must have been purely instinctual.
In this instance, that was clearly not the case: Timber’s second
entry into the vehicle was orchestrated by Handler Officer, who
encouraged Timber to re-enter the car, whereupon Handler
Officer shut the driver’s side door to keep Timber in the car to
search for drugs.

II. Ineffective Assistance of Counsel

¶33 Having determined that, based on the record before us, a
motion to suppress appears meritorious, we must now determine
if Trial Counsel rendered ineffective assistance in not filing such
a motion. We readily hold that Trial Counsel’s performance was
deficient and that this prejudiced Beames.

¶34 Here, the drug evidence was the only tangible evidence the
State presented of Beames’s guilt, and had it been suppressed, the
State would have undoubtedly dismissed the charges against her.
Thus, there was not “a sound strategic reason for not [moving to
suppress],” see State v. Ray, 2020 UT 12, ¶ 36, 469 P.3d 871, and
reasonable counsel would have done so because it was Beames’s
only realistic chance to avoid a conviction, cf. State v. Bell, 2016 UT
App 157, ¶ 23, 380 P.3d 11 (holding that counsel was ineffective
for not making a “risk-free” merger motion that would have
succeeded “under [the] correct application of the law”). By not

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 State v. Beames

doing so, Trial Counsel “made errors so serious that counsel was
not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” See Strickland v. Washington, 466 U.S. 668, 687
(1984).

¶35 The State argues that Trial Counsel could have acted
reasonably in not moving to suppress the evidence because
Boyfriend was on parole at the time. Citing Utah Code section
77-23-301, the State contends that because the law “permit[s]
warrantless searches of residences, vehicles, and personal effects
of persons on parole without probable cause,” Trial Counsel
could have reasonably not moved to suppress on the basis that
the State would have responded that Boyfriend’s parole status
allowed a suspicionless search. 7 As explained below, this
argument is unavailing.

¶36 When analyzing whether police conduct is appropriate
under the Fourth Amendment, we review the facts objectively
and do not consider the subjective intent of the officers. Whren v.
United States, 517 U.S. 806, 814 (1996). This does not mean,
however, when defending a later challenge to a search, that the
State is allowed to concoct any reason whatsoever to justify the
search. Rather, the justification for the search “depends upon the
reasonable conclusion to be drawn from the facts known to the
arresting officer at the time” of the search, Devenpeck v. Alford, 543
U.S. 146, 152 (2004) (emphasis added), and “the Government
cannot rely upon post hoc rationalizations to validate those
seizures that happen to turn up contraband,” United States v.
Foster, 634 F.3d 243, 249 (4th Cir. 2011). See also United States v.
Martinez-Fuerte, 428 U.S. 543, 565 (1976) (noting that a purpose of
the Fourth Amendment “is to prevent hindsight from coloring the
evaluation of the reasonableness of a search or seizure”); United

7. In so asserting, the State glosses over the fact that the car did
not belong to Boyfriend and that no “effects” were searched other
than a makeup box that the officers apparently did not believe
was tied to Boyfriend once Beames spoke up.

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 State v. Beames

States v. Hughes, 606 F.3d 311, 316 (6th Cir. 2010) (holding that
“police officers may not look for after-the-fact justifications for
stops that would otherwise be impermissible; following a stop,
the government should not begin poring through state and local
traffic ordinances looking for any that a suspect might have
violated”); Clark v. Coleman, 448 F. Supp. 3d 559, 569–70 (W.D. Va.
2020) (declining to consider the officer’s “post hoc rationalization”
for the traffic stop and subsequent search because it could not “be
squared with the evidence presented”).

¶37 On the record before us, there is no indication that either
Officer or Handler Officer knew about Boyfriend’s parole status
before they conducted the search. 8 In fact, had they known about
his status, and if ownership of the car and makeup kit are as
inconsequential as the State posits, see supra note 7, they
presumably would have just searched the car without bothering
to bring in a drug dog. But Officer’s reason for undertaking the
investigation was based on Boyfriend being trespassed from all
Walmarts worldwide and both occupants of the vehicle having

8. On cross-examination, Handler Officer testified that he had
previously been a corrections officer at the state prison and knew
Boyfriend from the time he spent there. Trial Counsel then asked
him if Boyfriend “explain[ed] to you that he was on parole at the
time,” and Handler Officer replied, “I believe so, yes.” But
comparing Officer’s testimony with the dashcam footage, it is
clear that Handler Officer discovered Boyfriend’s parole status
after he and Timber searched the car. Officer testified that he was
the one who asked Boyfriend to exit the car and while he was
“speaking with [Boyfriend], we had [Handler Officer] nearby, and
I asked if he’d perform a sniff of the vehicle.” This is consistent
with the video footage as well, which shows Officer talking with
Beames while Handler Officer and Timber are searching the car.
Thus, any conversation between Handler Officer and Boyfriend
in which Handler Officer became aware of Boyfriend’s parole
status occurred after the search and cannot be used as a
justification for the search.

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 State v. Beames

suspended driver licenses—not Boyfriend’s then-unknown status
as a parolee. Based on the objective facts existing at the time of the
search, the search could not therefore be justified on the post hoc
rationalization that Boyfriend was a parolee. Because Boyfriend’s
parole status was not known to the officers at the time of the
search, reasonable counsel would not have forgone a motion to
suppress on that basis.

¶38 Finally, determining prejudice in this case is a simple
exercise. Even the dissent acknowledges that, had a motion to
suppress been filed and granted, the State’s main piece of
evidence would have been inadmissible, and Beames likely
would not have been convicted. See infra note 10. We conclude
that a motion to suppress would have been meritorious. Had
counsel filed such a motion, there is a reasonable likelihood that
it would have been granted and that there would have been a
different outcome in this case. See Strickland, 466 U.S. at 694.

CONCLUSION

¶39 Trial Counsel provided ineffective assistance when she
failed to file a motion to suppress the drug evidence. We vacate
Beames’s convictions and remand for further proceedings
consistent with this opinion.

CHRISTIANSEN FORSTER, Judge (dissenting):

¶40 I agree with the majority that certified drug-sniffing K9
Timber’s initial entry into Beames’s vehicle was instinctual, 9 but

9. Beames also argues that the police officers unconstitutionally
facilitated Timber’s entry into the vehicle because the officers
opened the doors of the vehicle and left them open to allow
Timber to jump in. But there is no record evidence that explains
(continued…)

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 State v. Beames

because I disagree that Beames has met her burden to prove that
a motion to suppress would have succeeded, I respectfully
dissent. As articulated by the majority, to prevail on her
ineffective assistance of counsel claim, Beames must satisfy the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668
(1984). See Archuleta v. Galetka, 2011 UT 73, ¶ 38, 267 P.3d 232. She
must first establish that, despite the strong presumption that trial
counsel acted competently and that the challenged action was the
product of sound trial strategy, counsel’s representation “fell
below an objective standard of reasonable professional judgment”
such that he or she was not functioning as the counsel guaranteed
by the Sixth Amendment. See id. (quotation simplified). Second,
Beames must also establish prejudice because “[a]n error by
counsel . . . does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”

how Beames’s car doors came to be open or to prove that the
officers intentionally left the doors open to facilitate the K9 sniff.
And as explained in this dissent, Beames bears the burden to
demonstrate the record adequately supports her claim of
ineffective assistance, and the absence of evidence cannot support
such a determination. While “interior sniffs may become
constitutionally infirm in the event that the interior sniff is
accomplished or facilitated by the officer-handler,” a dog’s
instinctual behavior does not violate the Fourth Amendment
where the canine acts “on its own initiative and is neither
encouraged nor placed into the vehicle by law enforcement.”
United States v. Sharp, 689 F.3d 616, 619–20 (6th Cir. 2012)
(quotation simplified); see also United States v. Pierce, 622 F.3d 209,
214 (3d Cir. 2010) (applying the “considerable body of
jurisprudence” to conclude that the dog’s sniffs around the
interior of the vehicle did not violate the Fourth Amendment
where the handler neither caused nor directed the dog to sniff);
United States v. Winningham, 140 F.3d 1328, 1331 & n.2 (10th Cir.
1998) (finding a constitutional violation where the police officer
opened the vehicle and thus “facilitated” the dog’s intrusion into
the interior).

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 State v. Beames

Strickland, 466 U.S. at 691. Thus, the burden is on Beames to
demonstrate a reasonable probability that the outcome of her case
would have been different absent counsel’s error. See State v.
Garcia, 2017 UT 53, ¶¶ 34–38, 424 P.3d 171. “A reasonable
probability is a probability sufficient to undermine confidence in
the outcome” of the proceeding. Strickland, 466 U.S. at 694.

¶41 Here, where Beames’s ineffectiveness claim is based on
counsel’s decision not to file a suppression motion, she must
demonstrate her counsel performed deficiently and that she was
prejudiced by showing that she would have prevailed on the
unargued suppression motion and that there is a reasonable
probability that a successful motion would have affected the
outcome of the trial. See Kimmelman v. Morrison, 477 U.S. 365, 375
(1986) (“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.”);
see also State v. Martinez-Castellanos, 2018 UT 46, ¶ 45, 428 P.3d 1038
(“A trial counsel’s failure to file a . . . motion to suppress can only
cause harm to a defendant when the motion would have been
successful had the [motion] been filed.”). 10 This normally requires
a counterfactual analysis exploring what might have been if
counsel had raised and fully litigated the suppression issue to
conclusion.

¶42 The majority determines that because we have in the
record on appeal the testimony of Handler Officer from the
preliminary hearing and the trial and the video footage of the

10. I agree with the majority that if a suppression motion had been
meritorious and the evidence of the controlled substances found
in Beames’s vehicle excluded, a reasonable probability exists that
the trial outcome would have been different because most likely
there never would have been a trial at all. See supra ¶ 38.

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 State v. Beames

search of Beames’s vehicle, “[t]here is plenty of evidence before
us on which we can base an assessment about whether the officers
had probable cause.” Supra note 5. Unlike the majority, however,
I do not believe the record in this case contains the information
necessary to fully address and resolve Beames’s contention that
Timber did not quickly alert or indicate the presence of drugs
until after the dog re-entered the vehicle. It is true that Handler
Officer never specifically labeled Timber’s immediate jump into
the vehicle and fierce sniffing on “the center console wheel area
of the passenger side” as an alert sufficient to establish probable
cause to justify further sniffing and a search, but Handler Officer
was never asked that specific question and did not testify that
what Timber did was not an alert. Since there was no motion to
suppress filed, the focus at the preliminary hearing and at trial
was not whether officers had probable cause to search based upon
Timber’s alert to the presence of drugs in the vehicle; rather, the
focus at trial was whether the State could prove that Beames was
knowingly in possession of a controlled substance and
paraphernalia. See Florida v. Harris, 568 U.S. 237, 248 (2013) (“The
question—similar to every inquiry into probable cause—is
whether all the facts surrounding a dog’s alert, viewed through
the lens of common sense, would make a reasonably prudent
person think that a search would reveal contraband or evidence
of a crime. A sniff is up to snuff when it meets that test.”). In
addition, because Timber cannot be seen in the video after he
jumps into the vehicle, nobody just watching the dashcam video
of Timber’s seven seconds in the vehicle can definitively
determine, without further explanation from Handler Officer,
that Timber’s fierce sniffing was something different from his
alert when “[h]e closes his mouth real tight and he starts breathing
in real heavy because he starts getting excited.”

¶43 And because it is Beames’s burden on appeal to
demonstrate that a suppression motion “would have been
successful,” see Martinez-Castellanos, 2018 UT 46, ¶ 45, the absence
of evidence cannot be used to support her claim, see, e.g., People v.
Burnett, 128 N.E.3d 1094, 1098 (Ill. App. Ct. 2019) (rejecting the

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 State v. Beames

defendant’s “attempt[] to spin the lack of testimony about
probable cause into a conclusion that there was no probable
cause” (quotation simplified)). “[W]here, on direct appeal, [a]
defendant raises a claim that trial counsel was ineffective . . . , [the]
defendant bears the burden of assuring the record is adequate.”
State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92. Further, if “the
record appears inadequate in any fashion, ambiguities or
deficiencies resulting therefrom simply will be construed in favor
of a finding that counsel performed effectively.” Id. ¶ 17; see also
State v. Penman, 964 P.2d 1157, 1162 (Utah Ct. App. 1998) (“When
a defendant raises an ineffective assistance claim for the first time
on appeal, the claim will be reviewed only if the . . . record is
adequate to permit decision of the issue.” (quotation simplified)).
Though the issue was different from the issue presented here, the
United States Supreme Court’s decision in Massaro v. United
States, 538 U.S. 500 (2003), is instructive in this situation:

When an ineffective-assistance claim is brought on
direct appeal, appellate counsel and the court must
proceed on a trial record not developed precisely for
the object of litigating or preserving the claim and
thus often incomplete or inadequate for this
purpose. Under Strickland v. Washington, . . . a
defendant claiming ineffective counsel must show
that counsel’s actions were not supported by a
reasonable strategy and that the error was
prejudicial. The evidence introduced at trial,
however, will be devoted to issues of guilt or
innocence, and the resulting record in many cases
will not disclose the facts necessary to decide either
prong of the Strickland analysis. If the alleged error
is one of commission, the record may reflect the
action taken by counsel but not the reasons for it.
The appellate court may have no way of knowing
whether a seemingly unusual or misguided action
by counsel had a sound strategic motive or was

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 State v. Beames

taken because the counsel’s alternatives were even
worse.

Id. at 504–05. Even though we have testimony from Handler
Officer about Timber’s alerts and a general description of
Timber’s actions during the sniff, Handler Officer was never
asked if Timber alerted during his first entry into the vehicle, nor
do I think the video substantiates any lack of alert. As such, I do
not think it is this court’s place to presume that constitutional
error occurred merely because there is no definitive evidence on
the particular factual issue that is determinative here.

¶44 Accordingly, it was Beames’s obligation to provide an
adequate record on appeal to demonstrate that Timber did not
quickly alert when he first entered the vehicle to show that she
would have prevailed had a motion to suppress been filed. In my
opinion she has not done so, and I would affirm the convictions.

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