Date: 02-13-2014

Case Style: State of Utah v. Phillip Don Burdick

Case Number: 2014 UT 34

Judge: Christiansen

Court: The Utah Court of Appeals on appeal from the Second District Court, Ogden Department

Plaintiff's Attorney: Sean D. Reyes and Kenneth A. Bronston, Attorneys for Appellee

Defendant's Attorney: Samuel P. Newton, Attorney for Appellant

Description: ¶1 Defendant Phillip Don Burdick appeals from his convictions
for possession of a controlled substance in a drug-free zone,
possession of drug paraphernalia, and interference with an
arresting officer. We affirm.
BACKGROUND
¶2 On August 11, 2010, detectives with the Riverdale City
Police Department went to an address in Ogden, Utah, to search for
State v. Burdick
1. In reviewing the trial court’s ruling on a motion to suppress
evidence, we recite the relevant facts in the light most favorable to
the trial court’s findings. State v. Montoya, 937 P.2d 145, 147 (Utah
Ct. App. 1997). We recite all other facts in a light most favorable to
the jury’s verdict. See State v. Hamilton, 2003 UT 22, ¶ 18, 70 P.3d
111.
20110878-CA 2 2014 UT App 34
a suspect. The person 1 who answered the door of the residence,
Mirowski, consented to the detectives’ request to enter the house.
Once inside, the detectives saw two other men in the living room
of the house: a known drug user, Temple, who was half asleep on
the couch, and Defendant, “in a daze from sleeping.” While one
detective went with Mirowski to look for the suspect elsewhere in
the house, Detective Warren stayed in the living room and began
a “casual conversation” with Defendant and Temple. During this
conversation, Detective Warren noticed several knives, a
screwdriver, and a marijuana pipe on a toolbox on the floor in front
of Temple. When Mirowski and the other detective returned to the
living room, Mirowski admitted that the marijuana pipe belonged
to him. Detective Warren noticed that Defendant was “moving a
lot,” and that he was “starting to get agitated and nervous and kind
of fidgeting around.” At the same time, Temple “kind of sat up”
and Detective Warren saw beneath him a bag of methamphetamine
and a methamphetamine pipe.
¶3 Detective Warren continued to notice Defendant “reaching
around just agitated and making further movements.” As
Defendant “began to mov[e], he lifted his leg up and underneath
his leg was a knife.” Detective Warren saw the knife, “a hunting
buck knife type,” and he asked Defendant to stand up so he could
take the knife for the detectives’ safety. Detective Warren then
seized the knife and moved it to a different area. Detective Warren
asked Defendant whether he had anything else on his person that
the detective needed to worry about, and asked for permission to
search Defendant. At that time, Defendant refused to allow the
search, so Detective Warren asked him to sit down and hold still.
State v. Burdick
2. At trial, Detective Warren explained that he was placing
Defendant under arrest for possession of drug paraphernalia based
on his possession of the syringe.
20110878-CA 3 2014 UT App 34
¶4 The detectives obtained Mirowski’s consent to continue
searching the residence for narcotics, and Detective Warren briefly
left the living room with Mirowski. As Detective Warren came back
through the living room, Defendant “was moving around
nervously again, agitated, like he was trying to get into his pockets,
possibly access something.” Detective Warren told Defendant that
he was making him nervous and again asked Defendant for
permission to search his person, “just for weapons to make sure
you don’t have nothing that’s going to hurt me?” This time,
Defendant consented to a search for weapons. Defendant then
stood up, turned away from Detective Warren, and put his hands
on top of his head. Before searching him, Detective Warren asked
Defendant, “Do you have anything that’s going to poke me, stick
me, or hurt me?” Defendant said no.
¶5 Detective Warren patted the waistband of Defendant’s pants
and his pockets and located an object he identified as a syringe in
Defendant’s right pocket. Detective Warren asked why Defendant
did not tell him about the syringe. Defendant became upset and
yelled, “I didn’t f’ing say you could search me for syringes!”
Detective Warren then advised Defendant that he was under arrest,
took him into custody, and sat him in a chair.2 Before seating
Defendant in the chair, Detective Warren searched around the chair
and saw nothing there. Detective Warren’s attention was drawn to
Mirowski and Temple for a time, but he soon saw that Defendant
had resumed his furtive movements. When Detective Warren
asked him what he was doing, Defendant complained about the
handcuffs he was wearing. Detective Warren checked the
handcuffs and conducted a second search of the area around
Defendant “to make sure he wasn’t discarding or accessing
anything.”
State v. Burdick
20110878-CA 4 2014 UT App 34
¶6 As the detectives resumed their investigation, Defendant
continued to make the same furtive movements. In response,
Detective Warren asked Defendant to stand up. He then walked
Defendant a few steps from the chair and saw on the floor at
Defendant’s feet “a pink bag with a white crystal substance right in
front [of the chair] where it was not there clearly before.” As
Detective Warren picked up the pink bag, Defendant said, “God,
damn it.” The bag contained methamphetamine. Defendant
admitted that he was a methamphetamine user but denied that the
methamphetamine was his. However, when Detective Warren
suggested that he might ask Temple or Mirowski to whom the bag
belonged, Defendant protested, “Well don’t go do that.”
¶7 The State charged Defendant with possession of a controlled
substance in a drug-free zone, possession of drug paraphernalia,
and interference with an arresting officer. Following his
preliminary hearing, Defendant filed a pro se motion to suppress
evidence, despite his counsel’s position that there was no legal
basis for such a motion. After a hearing on that motion, and again
acting pro se, Defendant filed a revised version of his motion, recaptioned
as a motion to dismiss. Defendant claimed that Detective
Warren’s search of his person was a violation of the “stop and
frisk” doctrine, that he had consented only to a weapons search,
and that the discovery of the methamphetamine was fruit of the
poisonous tree. The trial court denied Defendant’s motion, ruling
that the search was not a “stop and frisk” but rather a consensual
search. The trial court also determined that Detective Warren’s
seizure of the syringe was justified because the syringe could be
used as a weapon and that the bag of methamphetamine was in
plain view. Defendant attempted to file another pro se motion to
dismiss based on Utah Code section 77-9-3, arguing that the
detectives’ investigation outside their statutory jurisdiction
exceeded the scope of their law enforcement authority. However,
the trial court apparently never addressed or ruled on this pro se
motion.
State v. Burdick
20110878-CA 5 2014 UT App 34
¶8 At trial, the jury found Defendant guilty on all counts.
Defendant appeals, arguing that the trial court erred in denying his
motion to suppress evidence and that he received ineffective
assistance of counsel.
ISSUES AND STANDARDS OF REVIEW
¶9 Defendant argues that the trial court erred in denying his
motion to suppress evidence. “We review for clear error the factual
findings underlying a district court’s decision to deny a motion to
suppress. Whether the district court correctly denied the motion to
suppress, however, is a legal conclusion that we review for
correctness.” State v. Applegate, 2008 UT 63, ¶ 5, 194 P.3d 925
(citations omitted).
¶10 Additionally, Defendant argues that his trial counsel was
ineffective for failing to raise his previously filed pro se motion to
dismiss based on the officer’s lack of jurisdiction to conduct the
search. Defendant also argues that his trial counsel was ineffective
for failing to move for a directed verdict, because he asserts that
insufficient evidence was submitted to demonstrate that he
constructively possessed a controlled substance. When ineffective
assistance of counsel claims are raised for the first time on appeal,
we decide the issues raised as a matter of law. See State v. C.D.L.,
2011 UT App 55, ¶ 12, 250 P.3d 69.
ANALYSIS
I. The Trial Court Correctly Denied Defendant’s Motion to
Suppress Evidence.
¶11 Defendant argues that the trial court erred in denying his
motion to suppress evidence because he gave consent only for
Detective Warren to search him for weapons and Detective
Warren’s pat down of Defendant went beyond what is legally
State v. Burdick
20110878-CA 6 2014 UT App 34
allowable in a weapons frisk. Defendant also argues that his
subsequent arrest for possession of the drug paraphernalia found
during that weapons frisk was not based on probable cause,
because the syringe might have served a legitimate medical
purpose. Defendant thus contends that the bag of
methamphetamine was discovered subsequent to an illegal search
and arrest and is therefore “fruit of the poisonous tree” that should
have been suppressed. In considering Defendant’s motion to
suppress, the parties stipulated to the trial court’s use of the facts
presented at the preliminary hearing.
A. Detective Warren’s Pat Down Did Not Exceed the
Permissible Scope of a Search for Weapons.
¶12 Defendant argues that Detective Warren’s pat down
exceeded the permissible scope of a search for weapons under
Terry v. Ohio, 392 U.S. 1 (1968). Under Terry, an officer may perform
a protective frisk of an individual whom the officer reasonably
suspects is “‘armed and presently dangerous’” but only for the
purpose of discovering “‘weapons which might be used to harm
the officer or others nearby.’” State v. Peterson, 2005 UT 17, ¶ 9, 110
P.3d 699 (quoting Terry, 392 U.S. at 24, 26). “Because the only
permissible objective of the Terry frisk is the discovery of weapons
that may be used against the officer or others, a protective search
[that] goes beyond what is necessary to determine if the suspect is
armed . . . is no longer valid under Terry and its fruits will be
suppressed.” Id. ¶ 12 (alteration and omission in original) (citation
and internal quotation marks omitted); see also Minnesota v.
Dickerson, 508 U.S. 366, 373 (1993). Defendant does not argue that
it was improper for Detective Warren to conduct the pat down.
Our inquiry is therefore focused on the proper scope of the pat
down under these circumstances.
¶13 We first note that the trial court’s finding that Defendant
consented to a search of his person for weapons is not challenged
on appeal. Thus, the pat down performed by Detective Warren was
a consensual search and is not directly subject to the requirements
State v. Burdick
3. Consent to search for specific items generally entails consent to
search “areas and containers that might reasonably contain those
items.” United States v. Romero, 247 F. App’x 955, 965 (10th Cir.
2007). Consent to search for weapons on the person, unless
otherwise limited, would therefore intuitively extend beyond a
mere pat down to a search of the pockets or other areas where a
weapon may be found. See, e.g., Stagg v. State, 678 S.E.2d 108, 111
(Ga. Ct. App. 2009) (concluding that the defendant had not “only
consented to a pat-down” but had “agreed to a general request for
consent to search his person for guns, knives, needles, or weapons”
that extended to a search of the contents of his pockets); State v.
Quale, 201 P.3d 273, 278 (Or. Ct. App. 2009) (concluding that under
objective evaluation of consent, a search for weapons included
“any place that weapons might be found, including [the
defendant’s] backpack”). However, because we ultimately
conclude that Detective Warren’s pat down complied with the
more stringent requirements of Terry, we need not address the
precise scope of Defendant’s consent here.
20110878-CA 7 2014 UT App 34
of Terry. Rather, the scope of a consensual search is governed by an
objective standard of what a “reasonable person [would] have
understood by the exchange between the officer and the suspect.”
Florida v. Jimeno, 500 U.S. 248, 251 (1991). Nevertheless, the object
of both a Terry frisk and the consent search at issue here is to
determine whether a suspect is in possession of any weapons that
pose a threat to officer safety. And while the scope of a Terry frisk
is less expansive than that of a full search, we find Terry and its
progeny instructive in analyzing the permissible scope of a
weapons search under these circumstances. See Terry, 392 U.S. at 26
(explaining that a Terry frisk “may realistically be characterized as
something less than a ‘full’ search”).3
¶14 A Terry frisk “must be limited to that which is necessary for
the discovery of weapons which might be used to harm the officer
or others nearby.” Id. The United States Supreme Court in
Minnesota v. Dickerson, 508 U.S. 366 (1993), explained that a frisk for
weapons under Terry does not include “squeezing, sliding and
State v. Burdick
20110878-CA 8 2014 UT App 34
otherwise manipulating the contents of the defendant’s pocket—a
pocket which the officer already knew contained no weapon.” Id.
at 378 (citation and internal quotation marks omitted). However, if
an officer “lawfully pats down a suspect’s outer clothing and feels
an object whose contour or mass makes its identity immediately
apparent, there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for
weapons.” Id. at 375.
¶15 Defendant claims that Detective Warren manipulated his
clothing to discern that his pocket contained a syringe and in so
doing exceeded the scope of a Terry frisk for discovery of a
weapon. At the preliminary hearing, Detective Warren testified,
I . . . patted on top of [Defendant’s] right pocket, and
when I did that, I felt an object—and granted I’m
always careful whenever I deal with people because
needles and things like that. And so I patted real
careful, and when I patted him and felt the object, I
identified it as a syringe. So I asked him—I said,
“Why didn’t you tell me you had a syringe? You
know, it could stick me.”
Because only Detective Warren testified at the preliminary hearing,
the trial court determined that his testimony represented the facts
of the case for purposes of the suppression motion. The trial court
found that “[Detective] Warren felt an object in [Defendant’s]
pocket which he immediately recognized as a syringe from the
outside of the clothing.”
¶16 Detective Warren’s description of the pat down and the trial
court’s findings based on that testimony fall within the confines of
a permissible Terry frisk. Detective Warren testified only that he
patted the outside of Defendant’s clothing in order to discern that
the object in his pocket was a syringe, and nothing in this testimony
suggests that he manipulated Defendant’s clothing or his pocket.
Defendant has failed to direct this court to any record evidence that
State v. Burdick
20110878-CA 9 2014 UT App 34
Detective Warren’s actions were anything other than patting the
outside of Defendant’s pocket. He asserts only that Detective
Warren “potentially said” he manipulated some part of
Defendant’s clothing in a police report that is not in the record
before this court. And Defendant’s argument that Detective
Warren’s “real careful” pat down represents an intrusive and
impermissible search is belied by the context of Detective Warren’s
testimony, which makes clear that he was taking care to avoid
contact with any hidden needles, not carefully inspecting
Defendant’s pocket.
¶17 While Defendant argues that it would have been impossible
for Detective Warren to identify the object in his pocket as a syringe
from a mere pat down, Detective Warren needed only a reasonable
belief that the object he discovered was a syringe that could be
used as a weapon to investigate further. See United States v. Harris,
313 F.3d 1228, 1238 (10th Cir. 2002); see also State v. Ellis, 2012 UT
App 272, ¶ 8, 287 P.3d 471 (“[T]he allowable scope of a Terry frisk
is determined by the reasonableness of the officer's belief that an
object might be a weapon or might contain one, not by the degree
of his certainty that an object is or contains a weapon.”). We are not
convinced that a syringe is so nondescript that Detective Warren
could not have reasonably believed he had discovered a syringe
through a pat down. See, e.g., State v. Hunter, 615 So. 2d 727, 734
(Fla. Dist. Ct. App. 1993) (“We conclude that the officer was
justified in taking the item out of [the defendant’s] pocket as a
result of a legitimate frisk for weapons and the officer’s reasonable
belief that the object she felt was a syringe that could be used as a
weapon.”); State v. Eells, 696 P.2d 564, 565 (Or. Ct. App. 1985)
(observing that the officer discovered a syringe in the defendant’s
pocket while conducting a frisk for weapons); Moore v.
Commonwealth, 487 S.E.2d 864, 866, 869 (Va. Ct. App. 1997)
(concluding that an officer’s Terry frisk, during which the officer
“detected and removed from [the defendant’s] pocket an
unsheathed syringe,” was reasonable under the circumstances); see
also Dickerson, 508 U.S. at 376 (“The very premise of Terry, after all,
is that officers will be able to detect the presence of weapons
State v. Burdick
4. The analysis set forth in part I.B. represents the reasoning of only
Judge Christiansen, as neither Judge McHugh nor Judge Davis
concurs in the reasoning of this section of the lead opinion.
However, because Judge McHugh concurs in the result, our
ultimate conclusion that all of Defendant’s convictions should be
affirmed is unaffected.
20110878-CA 10 2014 UT App 34
through the sense of touch and Terry upheld precisely such a
seizure.”).
¶18 Given Detective Warren’s testimony relating his extensive
experience conducting pat downs over seven years of law
enforcement work, we are not persuaded by Defendant’s argument
that it would have been impossible for Detective Warren to identify
the syringe from a pat down without exceeding the bounds of
Terry. And once Detective Warren identified the syringe under
these circumstances—given the discovery of a knife under
Defendant’s leg, Defendant’s furtive movements, and the presence
of drugs and the other weapons in the room—he was justified in
removing the object from Defendant’s pocket to ascertain whether
what he believed to be a syringe had an attached needle or was
otherwise a weapon that could harm him or another. See Hunter,
615 So. 2d at 734.
¶19 Because Defendant has not shown that Detective Warren did
more than “pat[] down a suspect’s outer clothing and feel[] an
object whose contour or mass [made] its identity immediately
apparent,” see Minnesota v. Dickerson, 508 U.S. 366, 375 (1993), we
conclude that Detective Warren’s pat down of Defendant did not
exceed the scope of a Terry frisk or the scope of Defendant’s
consent to search for weapons.
B. Defendant Has Not Demonstrated Error in the Trial Court’s
Determination that a Syringe Can Be Used as a Weapon.4
¶20 Defendant argues that the trial court’s determination that a
syringe can be used as a weapon “neglects the statute’s plain
State v. Burdick
20110878-CA 11 2014 UT App 34
language” that defines a “dangerous weapon” and is therefore in
error. Defendant asserts that a weapon for purposes of a Terry frisk
is defined by Utah Code section 76-10-501, which provides,
“‘Dangerous weapon’ means an item that in the manner of its use
or intended use is capable of causing death or serious bodily
injury.” Utah Code Ann. § 76-10-501(6)(a) (LexisNexis 2012).
Defendant argues that a syringe does not meet the statutory
definition of a weapon under this section because syringes are most
commonly used for medical purposes and produce “almost nonexistent”
wounds, and the syringe in this case was not used for any
criminal conduct. See id. § 76-10-501(6)(b) (setting forth factors to be
used in determining whether an object is a dangerous weapon
under Utah Code section 76-10-501(6)(a), including the “character
of the wound produced,” “the manner in which the . . . object . . .
was used,” and “the other lawful purposes for which the . . .
object . . . may be used”).
¶21 Defendant’s argument neglects the plain language of Utah
Code section 76-10-501, which provides that the definitions in that
section are specific to title 76, chapter 10, part 5 of the Utah Code,
which sets out offenses related to the transfer, possession, or
modification of weapons. See id. §§ 76-10-500 to -532. However,
none of the weapon offenses governed by these provisions are
implicated in a protective Terry frisk, and the definition of a
dangerous weapon contained in that part of the Utah Code does
not control here. I therefore do not agree that the trial court’s
determination that a syringe can be used as a weapon is in conflict
with or otherwise foreclosed by Utah Code section 76-10-501. Terry
itself does not define a weapon, but allows an officer to seize or
neutralize “weapons which might be used to harm the officer or
others nearby” or that “might be used to assault” the officer. Terry
v. Ohio, 392 U.S. 1, 26, 30 (1968).
¶22 Defendant has advanced no other challenge to the trial
court’s determination that the syringe could be used as a weapon
and that Detective Warren was therefore permitted to remove the
State v. Burdick
5. Defendant also argues that even if Detective Warren identified
the syringe in his pocket, he was not justified in searching further
or seizing the syringe because syringes have legitimate medical
uses. He argues that the syringe’s identity as contraband was
therefore not immediately apparent, as required by Minnesota v.
Dickerson, 508 U.S. 366, 375–76 (1993). Under the “plain feel”
doctrine of Dickerson, if an object’s incriminating character is not
immediately apparent, further search or seizure of the object is not
justified. See id. While Detective Warren ultimately arrested
Defendant for possession of drug paraphernalia, the trial court
ruled that the seizure of the syringe was justified because Detective
Warren identified it as a weapon, not because he identified it as
contraband by its “plain feel.” Defendant’s argument therefore fails
to address the basis of the trial court’s ruling, and we need not
address it further. See Golden Meadows Props., LC v. Strand, 2010 UT
App 257, ¶ 17, 241 P.3d 375.
6. The dissent asserts that the trial court’s ruling that a syringe can
be used as a weapon is “impermissibly broad” and not supported
by the record in this case, because there is no evidence in the record
that a needle was attached to the syringe. While such a challenge
(continued...)
20110878-CA 12 2014 UT App 34
syringe from Defendant’s pocket. 5 “On appeal, the appellant is
required to clearly define the issues and provide accompanying
argument and authority; a reviewing court is not simply a
depository in which the appealing party may dump the burden of
argument and research.” State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d
977. And we may not “assume the role of an advocate by
researching all applicable law and searching the entire record for
each and every indication of possible or potential error.” Id.
(citation and internal quotation marks omitted). Because Defendant
has failed to meet his burden of demonstrating error, I would
affirm the trial court’s determination that a syringe can be used as
a weapon without expressing an opinion on the separate question
of whether a syringe is necessarily a dangerous weapon under
Utah law.6
State v. Burdick
6. (...continued)
might have merit in an appropriate case, Defendant simply has not
raised such a challenge to the sufficiency of the evidence
supporting the trial court’s finding or even asserted in his brief that
a needle was not attached to the syringe. Even assuming that his
challenge to the trial court’s finding under the purported statutory
definition of a dangerous weapon could be read to encompass such
an argument, Defendant has not directed this court to any record
evidence that the syringe did not have a needle. It is Defendant’s
burden on appeal to demonstrate error in the trial court’s ruling.
To do so he must “clearly define the issues and provide
accompanying argument and authority,” State v. Honie, 2002 UT 4,
¶ 67, 57 P.3d 977, and provide an adequate record for review, State
v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (“[W]hen an appellant
fails to provide an adequate record on appeal, we presume the
regularity of the proceedings below.”). Under these circumstances
and given Defendant’s limited briefing of his challenge to the trial
court’s determination, I cannot “assume the role of an advocate”
and grant relief to Defendant on the basis of an argument he has
neither raised nor adequately supported. See Honie, 2002 UT 4, ¶ 67
(citation and internal quotation marks omitted).
20110878-CA 13 2014 UT App 34
C. Defendant’s Probable Cause Argument Is Not Preserved.
¶23 Defendant next argues that Detective Warren did not have
probable cause to arrest him for possession of drug paraphernalia,
because a syringe can be used for medical purposes and is therefore
not per se paraphernalia or contraband. See State v. Nimer, 2010 UT
App 376, ¶ 10, 246 P.3d 1194 (“Because hypodermic needles and
syringes have legitimate medical purposes, . . . mere possession
does not establish probable cause that they are drug
paraphernalia.”). However, Defendant’s argument that Detective
Warren did not have probable cause to arrest him for possessing
drug paraphernalia is foreclosed, as the State points out, because
Defendant failed to raise this argument before the trial court and
failed to argue plain error or exceptional circumstances on appeal.
State v. Burdick
20110878-CA 14 2014 UT App 34
¶24 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10
P.3d 346. To preserve an issue for appeal, the issue must be
specifically and timely raised before the trial court in such a way
that the trial court has an opportunity to rule on the issue, and “the
challenging party must introduce supporting evidence or relevant
legal authority.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99
P.3d 801. “[T]he preservation rule applies to every claim, including
constitutional questions, unless a defendant can demonstrate that
exceptional circumstances exist or plain error occurred.” Holgate,
2000 UT 74, ¶ 11 (citations and internal quotation marks omitted).
¶25 A review of Defendant’s pro se motion and the transcript
from the March 2, 2011 suppression hearing demonstrates that
Defendant argued only that the scope of the pat down went
beyond what Terry allows. On appeal, Defendant suggests that,
considering the leniency this court should afford him as a pro se
criminal defendant, Defendant sufficiently preserved his probable
cause claim by filing his pro se motion. Our “approach to pro se
litigants seeks to balance the procedural demands of litigation and
the rights of unrepresented parties.” State v. Winfield, 2006 UT 4,
¶ 19, 128 P.3d 1171. Thus, we recognize that Defendant should be
“accorded every consideration that may reasonably be indulged.”
Id. (citation and internal quotations marks omitted). Nevertheless,
“a party who represents himself will be held to the same standard
of knowledge and practice as any qualified member of the bar.” Id.
(citation and internal quotation marks omitted). Thus, “even
though this court ‘generally is lenient with pro se litigants’ and is
‘understandably loath to sanction them for a procedural misstep
here or there,’ we cannot advocate on their behalf or ignore the
requirements necessary to preserve an issue for appeal.” Tolle v.
Fenley, 2006 UT App 78, ¶ 70, 132 P.3d 63 (Thorne, J., concurring)
(quoting Lundahl v. Quinn, 2003 UT 11, ¶ 4, 67 P.3d 1000).
¶26 Even granting Defendant some leniency due to his pro se
status, he simply did not argue to the trial court that Detective
Warren lacked probable cause to arrest him for possessing
State v. Burdick
7. Indeed, Defendant was represented by counsel at the time he
attempted to file his motion to suppress. However, because counsel
did not believe that Defendant’s proposed motion was well
founded, the trial court allowed counsel to withdraw so that
Defendant could proceed with his motion pro se. The trial court
then appointed new counsel for Defendant shortly after the hearing
on Defendant’s motion.
20110878-CA 15 2014 UT App 34
suspected drug paraphernalia even if the seizure of the syringe was
proper. Thus, the trial court had no opportunity to rule on the issue
of whether Detective Warren’s discovery of the syringe gave rise
to probable cause for an arrest.
¶27 Moreover, while Defendant appeared pro se before the trial
court at the suppression hearing, he was represented by counsel at
trial and is represented by counsel on appeal.7 His appellate
counsel could have argued plain error or exceptional circumstances
but did not. See Delaney v. Labor Comm’n, 2008 UT App 141U,
para. 5 (declining to depart from our preservation rule where
appellate counsel for a previously pro se litigant did not argue
plain error or exceptional circumstances on appeal). Accordingly,
we decline to review Defendant’s challenge to the legality of his
arrest.
¶28 Because we determine that Detective Warren’s pat down
and subsequent arrest of Defendant were proper, we need not
reach Defendant’s argument that the bag of methamphetamine
should be suppressed as “fruit of the poisonous tree.” See Wong
Sun v. United States, 371 U.S. 471, 488 (1963). Accordingly, we
conclude that the trial court did not err in denying Defendant’s
motion to suppress evidence.
II. Defendant’s Trial Counsel Was Not Ineffective for Failing to
Raise Defendant’s Previously Filed Pro Se Motion to Dismiss.
¶29 Defendant argues that his trial counsel was ineffective in
failing to formally pursue Defendant’s pro se motion to dismiss
State v. Burdick
8. Defendant does not argue that the trial court erred in declining
to rule on his pro se motion, perhaps recognizing that “[w]hen a
defendant is represented by counsel, he generally has no authority
to file pro se motions, and the court should not consider them.”
State v. Wareham, 2006 UT App 327, ¶ 33, 143 P.3d 302 (citation and
internal quotation marks omitted).
20110878-CA 16 2014 UT App 34
based on the detectives’ alleged lack of jurisdiction to conduct their
investigation. To succeed 8 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). To
establish that counsel’s performance was deficient, a defendant
“must show that counsel’s representation fell below an objective
standard of reasonableness.“ Id. at 688. This showing requires the
defendant to overcome the “strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.” Id. at 689. To establish the prejudice prong of an
ineffective assistance of counsel claim, the defendant “must show
that a reasonable probability exists that, but for counsel’s error, the
result would have been different.” State v. Millard, 2010 UT App
355, ¶ 18, 246 P.3d 151 (citation and internal quotation marks
omitted).
¶30 “[T]he burden of proving that counsel was ineffective is
placed firmly upon the defendant.” State v. C.D.L., 2011 UT App 55,
¶ 39, 250 P.3d 69. “If a defendant is aware of any ‘nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective,’ defendant bears the primary obligation and burden of
moving for a temporary remand.” State v. Litherland, 2000 UT 76,
¶ 16, 12 P.3d 92 (quoting Utah R. App. P. 23B). “Otherwise, an
inadequate record, even one riddled with ambiguities, deficiencies,
and the like, ‘will be construed in favor of a finding that counsel
performed effectively.’” C.D.L., 2011 UT App 55, ¶ 39 (quoting
Litherland, 2000 UT 76, ¶ 17).
State v. Burdick
9. Section 77-9-3 provides, in relevant part,
(1) Any peace officer authorized by any
governmental entity of this state may exercise a
peace officer’s authority beyond the limits of such
officer’s normal jurisdiction as follows:
. . . .
(c) when participating in an investigation of
criminal activity which originated in the officer’s
normal jurisdiction in cooperation with the local
authority . . . .
Utah Code Ann. § 77-9-3 (LexisNexis 2012).
20110878-CA 17 2014 UT App 34
¶31 Specifically, Defendant argues that the Riverdale City police
detectives were conducting a Riverdale City investigation in Ogden
City without Ogden City’s cooperation as required by Utah Code
section 77-9-3.9 He contends that “there is no evidence from the
record that the officers were working in cooperation with the local
authority as required for [Utah Code section 77-9-3(1)(c)].” (Internal
quotation marks omitted.)
¶32 The State responds that Defendant has failed to demonstrate
from the record that the detectives were not working in cooperation
with Ogden City. In his reply brief, Defendant asserts,
The [detectives] did not seek cooperation from
Ogden City. No Ogden police officers were present.
They went to the address alone. It is the State, rather
than [Defendant], that seeks to assume the officers
must somehow have obtained consent from Ogden
City. Nothing in the record supports that assertion.
The officers never called Ogden City, nor were
Ogden police officers present at the scene—all
indicators of a cooperative police investigation.
¶33 Defendant assumes that the detectives did not cooperate
with the Ogden police because the Ogden police were not present
during the investigation. He reads into the record that the
State v. Burdick
20110878-CA 18 2014 UT App 34
detectives did not call, obtain consent from, or otherwise seek
cooperation from the Ogden police. But, in fact, the record is silent
as to whether the detectives sought cooperation from the Ogden
police. That deficiency in the record was Defendant’s responsibility
to correct on appeal. See Litherland, 2000 UT 76, ¶ 17. We must
therefore construe this omission in the record in favor of a finding
that the Defendant’s motion would have been unavailing. Counsel
therefore did not perform deficiently in declining to pursue
Defendant’s pro se motion to dismiss.
III. Trial Counsel Was Not Ineffective for Failing to Move for a
Directed Verdict.
¶34 Finally, Defendant argues that his trial counsel was
ineffective for failing to move for a directed verdict at the close of
the State’s case because there was insufficient evidence presented
at trial that he constructively possessed a bag of
methamphetamine. As stated, 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). However, “[i]t is well settled that counsel’s performance at
trial is not deficient if counsel refrains from making futile
objections, motions, or requests.” State v. Perez-Avila, 2006 UT App
71, ¶ 7, 131 P.3d 864 (citing State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546).
¶35 “A directed verdict should not be granted if, upon reviewing
the evidence and all inferences that can be reasonably drawn from
it . . . some evidence exists from which a reasonable jury could find
that the elements of the crime had been proved beyond a
reasonable doubt.” State v. C.D.L., 2011 UT App 55, ¶ 15, 250 P.3d
69 (omission in original) (citation and internal quotation marks
omitted). Thus, if the State presented “no competent evidence”
from which the jury could find that Defendant had constructively
possessed the methamphetamine, then trial counsel “should have
moved for a directed verdict, and failure to do so would likely
State v. Burdick
20110878-CA 19 2014 UT App 34
constitute deficient performance.” See id. (citations and internal
quotation marks omitted). Conversely, if the State presented “some
evidence . . . from which a reasonable jury could find” that
constructive possession had been proven beyond a reasonable
doubt, “a directed verdict could not properly be granted” and trial
counsel’s decision not to raise a futile motion for a directed verdict
would not be deficient performance. See id. (omission in original);
see also Perez-Avila, 2006 UT App 71, ¶ 7. In determining whether a
motion for directed verdict could have been granted, we view the
evidence presented at trial in the light most favorable to the State.
State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183.
¶36 “To establish constructive possession, the State must ‘prove
that there was a sufficient nexus between the accused and the drug
to permit an inference that the accused had both the power and the
intent to exercise dominion and control over the drug.’” State v.
Gonzalez-Camargo, 2012 UT App 366, ¶ 17, 293 P.3d 1121 (quoting
State v. Workman, 2005 UT 66, ¶ 31, 122 P.3d 639). “Whether a
sufficient nexus exists ‘depends upon the facts and circumstances
of each case.’” Id. (quoting Workman, 2005 UT 66, ¶ 31). In
determining whether the nexus in a particular case is sufficient,
several factors may be important, including ownership or
occupancy of the residence where the drugs were found, the
“presence of [the] defendant at the time drugs were found,” the
“defendant’s proximity to the drugs,” the defendant’s “previous
drug use,” “incriminating statements or behavior” by the
defendant, and the “presence of drugs in a specific area where the
defendant had control.” Workman, 2005 UT 66, ¶ 32.
¶37 Defendant maintains that the evidence introduced at trial
was insufficient to establish that there was a nexus between himself
and the bag of methamphetamine sufficient to satisfy constructive
possession. However, the following relevant evidence was
introduced at trial: Detective Warren located a syringe, which can
be used to inject methamphetamine, in Defendant’s pocket;
Defendant was persistently fidgety and made furtive movements
when the detectives were present; Detective Warren found the bag
State v. Burdick
20110878-CA 20 2014 UT App 34
of methamphetamine by Defendant’s feet, where Defendant had
been sitting, in an area that Detective Warren had previously
searched and cleared; Defendant admitted that he was a
methamphetamine user; Defendant said “God, damn it” when
Detective Warren picked up the bag of methamphetamine; and
Defendant indicated to Detective Warren that he did not want
Detective Warren to ask the other people at the residence to whom
the bag of methamphetamine belonged. This evidence was
sufficient to send the question of constructive possession to the
jury.
¶38 Defendant argues that each circumstance in isolation is
insufficient to demonstrate his constructive possession of the bag
of methamphetamine. However, when viewed in the light most
favorable to the State, see Montoya, 2004 UT 5, ¶ 29, the facts taken
together amount to “some evidence” from which a reasonable jury
could find that there was a sufficient nexus between Defendant and
the bag of methamphetamine that his constructive possession of
methamphetamine was proved beyond a reasonable doubt, see
C.D.L., 2011 UT App 55, ¶ 15; see also Workman, 2005 UT 66, ¶ 35
(“Taken alone, it is not likely that any one, or even a small group,
of these factors would be enough to establish a sufficient nexus
between [the defendant] and the clandestine lab. However, we hold
that the cumulative effect of these factors is such that a reasonable
jury could have concluded that there was a sufficient nexus
between [the defendant] and the clandestine lab to satisfy the
possession element of the statute.”).
¶39 Defendant also argues that there was evidence to support
his argument that one of the other men in the room could have just
as likely possessed the methamphetamine. However, evidence that
one of the other men may have constructively possessed the
methamphetamine does not mean that Defendant could not also
constructively possess the methamphetamine—possession of a
controlled substance need not be exclusive and is often joint. See
State v. Winters, 396 P.2d 872, 874 (Utah 1964); accord People v.
Garcia, 971 N.E.2d 1150, 1154 (Ill. App. Ct. 2012) (“Possession of
State v. Burdick
20110878-CA 21 2014 UT App 34
contraband can be, and often is, joint. Evidence of a defendant's
possession of drugs therefore does not rule out possession by
another defendant.”).
¶40 Because there was “some evidence” from which a jury could
have found beyond a reasonable doubt that Defendant
constructively possessed the methamphetamine, a directed verdict
would not have been properly granted. Defendant’s trial counsel
therefore did not perform deficiently in failing to bring a “futile
directed verdict motion.” See State v. C.D.L., 2011 UT App 55, ¶ 15,
250 P.3d 69 (citation and internal quotation marks omitted).
CONCLUSION
¶41 The trial court did not err in denying Defendant’s motion to
suppress, because Defendant voluntarily consented to a pat down
of his person and Detective Warren’s pat down did not exceed the
permissible scope of a Terry frisk. Defendant did not preserve his
argument that Detective Warren did not have probable cause to
arrest him for possession of drug paraphernalia. Defendant’s trial
counsel did not provide ineffective assistance of counsel in failing
to formally raise Defendant’s argument that the Riverdale City
detectives lacked jurisdiction to conduct their investigation in
Ogden City. Finally, Defendant’s trial counsel was not ineffective
for not moving for a directed verdict at the close of the State’s case,
because such a motion would have been futile. We affirm
Defendant’s convictions.
DAVIS, Judge (concurring in part and dissenting in part):
¶42 I dissent from the lead opinion solely with regard to its
analysis under Part I.B., in which Judge Christiansen endorses the
trial court’s determination that the syringe could be used as a
State v. Burdick
10. Because Judge McHugh concurs only in the result of affirming
Defendant’s conviction, the lead opinion has majority support and
thus precedential value only with respect to the portions of the
opinion with which I concur. Part I.B. of the lead opinion, in which
I do not concur, represents only the view of the author, and thus
has no precedential value.
20110878-CA 22 2014 UT App 34
dangerous weapon.10 See supra ¶¶ 20–22. As to all other parts of the
lead opinion, I concur.
¶43 The trial court’s ruling on Defendant’s motion to suppress
includes the impermissibly broad finding that “[a] syringe can
be used as a weapon.” Without evidence that a needle was
attached to the syringe in Defendant’s pocket, I do not see how
this syringe, or a syringe in general, could be per se a weapon
under any of the analytical frameworks referenced by the trial
court or in Part I.B. Cf. United States v. Rue, 988 F.2d 94, 96 (10th Cir.
1993) (syringe used as a stabbing implement, indicating that it had
an attached needle, was considered a deadly weapon); People v.
Autry, 283 Cal. Rptr. 417, 418 (Cal. Ct. App. 1991) (“[A]
contaminated hypodermic needle is one of the more deadly objects
one can imagine outside of firearms.”); State v. Nimer, 2010 UT
App 376, ¶ 3, 246 P.3d 1194 (the defendant admitted to having
syringes with uncapped needles attached in his pocket); State v.
White, 856 P.2d 656, 658 (Utah Ct. App. 1993) (a police officer
removed an uncapped needle from the defendant’s pocket). A
syringe, by definition, is not necessarily accompanied by an
attached needle. See, e.g., Syringe, Merriam–Webster Online,
http://www.merriam-webster.com/dictionary/syringe (last visited
Feb. 3, 2014) (defining “syringe” as “a device used to inject fluids
into or withdraw them from something,” “a device that consists
of a nozzle of varying length and a compressible rubber bulb
and is used for injection or irrigation,” and “an instrument
(as for the injection of medicine or the withdrawal of
bodily fluids) that consists of a hollow barrel fitted with a
plunger and a hollow needle”); Syringe, Oxford Dictionaries,
http://www.oxforddictionaries.com/us/definition/american_engli
State v. Burdick
20110878-CA 23 2014 UT App 34
sh/syringe (last visited Feb. 3, 2014) (defining “syringe” as “a tube
with a nozzle and piston or bulb for sucking in and ejecting liquid
in a thin stream, used for cleaning wounds or body cavities, or
fitted with a hollow needle for injecting or withdrawing fluids”
(emphasis added)).
¶44 Here, there is no evidence that the syringe Detective Warren
felt in Defendant’s pocket during his weapons search had a needle
attached to it. And Defendant represented to Detective Warren that
he “‘absolutely’” did not have any needles or other sharp objects
on his person. As stated in Part I.B., “Terry itself does not define a
weapon, but allows an officer to seize or neutralize ‘weapons which
might be used to harm the officer or others nearby’ or that ‘might
be used to assault’ the officer.” See supra ¶ 21 (Quoting Terry v.
Ohio, 392 U.S. 1, 26, 30 (1968)). Similarly, the general definition of
a dangerous weapon provided in the Utah Code broadly defines a
dangerous weapon as “any item capable of causing death or
serious bodily injury.” Utah Code Ann. § 76-1-601(5)(a) (LexisNexis
2012). However, under either approach, I cannot see how the
syringe in this case, without evidence of an attached needle, would
be “capable of causing death or serious bodily injury,” see id.
¶45 The same statute also provides that “a facsimile or
representation” of a dangerous weapon is a dangerous weapon
where “the actor’s use or apparent intended use of the item leads
the victim to reasonably believe the item is likely to cause death or
serious bodily injury” or “the actor represents to the victim
verbally or in any other manner that he is in control of such an
item.” Id. § 76-1-601(5)(b). Here, Defendant denied having any
sharp objects on his person and he did not attempt to access the
syringe. Indeed, it is not clear that Detective Warren handcuffed
Defendant because of any threat he may have perceived from the
presence of the syringe where, after Detective Warren commented
on feeling the syringe in Defendant’s pocket, Defendant turned
toward him aggressively with an arm raised, visibly upset and
yelling. Furthermore, Detective Warren did not “disarm”
Defendant after discovering the syringe, see Terry, 392 U.S. at 30,
State v. Burdick
11. It is also worth noting that the syringe ultimately tested
negative for controlled substances.
20110878-CA 24 2014 UT App 34
but did so some time later, implying that Detective Warren did not
“reasonably believe” the syringe was a dangerous weapon. See
Utah Code Ann. § 76-1-601(5)(b). However, by endorsing the trial
court’s determination on this record that a syringe can be used as
a weapon, Part I.B. effectively holds that anyone carrying a syringe
for a legitimate purpose, e.g., an insulin-dependent diabetic, is
guilty of carrying a weapon.
¶46 Accordingly, while I do not necessarily disagree that
Defendant inadequately briefed this issue, see supra ¶ 22 & n.5, I
would overlook any inadequacy to clarify that a syringe, contrary
to the trial court’s finding, is not per se a weapon and that the
evidence in this case does not support a finding that this syringe,
even if a needle had been attached, could be used as a weapon. To
the extent reversal of that finding would undermine the trial
court’s ruling on the motion to suppress, I would reverse the trial
court’s denial of that motion and reverse Defendant’s
paraphernalia charge.11

Outcome: See above

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