Lead Opinion
Opinion
[ 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
12 On August 11, 2010, detectives with the Riverdale City Police Department went to an address in Ogden, Utah, to search for a suspect.
13 Detective Warren continued to notice Defendant "reaching around just agitated and making further movements." As Defendant "began to movie], 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.
T4 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.
1 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 fing 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.
T 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 erystal 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."
T 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, re-captioned as a motion to dismiss. Defendant claimed that Detective Warren's search of his person was a
18 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
T9 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,
{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.,
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 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.
[4,5] 112 Defendant argues that Detective Warren's pat down exceeded the permissible seope of a search for weapons under Terry v. Ohio,
113 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 of Terry. Rather, the seope 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,
114 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,
115 Defendant claims that Detective Warren manipulated his clothing to discern that his pocket contained a syringe and in so doing exceeded the seope 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 nee-dies 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-1I 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
I 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,
118 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 onee Detective Warren identified the syringe under these cireumstances-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,
{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,
B. Defendant Has Not Demonstrated Error in the Trial Court's Determination that a Syringe Can Be Used as a Weapon
120 Defendant argues that the trial court's determination that a syringe can be
{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 -582. 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,
122 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 syringe from Defendant's pocket.
123 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,
124 "As a general rule, claims not raised before the trial court may not be raised on appeal." State v. Holgate,
125 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,
126 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 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.
127 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.
128 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,
II. Defendant's Trial Counsel Was Not Ineffective for Failing to Raise Defendant's Previously Filed Pro Se Motion to Dismiss.
129 Defendant argues that his trial counsel was ineffective in failing to formally pursue Defendant's pro se motion to dismiss based on the detectives' alleged lack of jurisdiction to conduct their investigation.
1 30 "[The burden of proving that counsel was ineffective is placed firmly upon the defendant." State v. C.D.L.,
{$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 seetion 77-9-8.
132 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 seene-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 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,
III, Trial Counsel Was Not Ineffective for Failing to Move for a Directed Verdict.
134 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,
135 "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.,
136 "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. Gonzales-Camargo,
137 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 of Defendant's feet, methamphetamine by 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.
138 Defendant argues that each cireum-stance 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,
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,
{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.,
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 seope 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 tri
Notes
. 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,
. At trial, Detective Warren explained that he was placing Defendant under arrest for possession of drug paraphernalia based on his possession of the syringe.
. Consent to search for specific items generally entails consent to search "areas and containers that might reasonably contain those items." United States v. Romero,
. 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.
. 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,
. The dissent asserts that the trial court's ruling that a syringe can be used as a weapon is "im-permissibly 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 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
. 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
. Defendant does not argue that the trial court erred in declining to rule on his pro se motion, perhaps recognizing that "[when 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,
. 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).
Concurrence in Part
(concurring in part and dissenting in part):
[ 42 I dissent from the lead opinion solely with regard to its analysis under Part LB., in which Judge Christiansen endorses the trial court's determination that the syringe could be used as a dangerous weapon.
4 48 The trial court's ruling on Defendant's motion to suppress includes the impermissi-bly 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 L.B. Cf. United States v. Rue,
{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 LB., "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,
1 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
T 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.
. Because Judge McHugh concurs only in the result of affirming Defendant's conviction, the lead opinion has majority support and thus prec-edential value only with respect to the portions of the opinion with which I concur. Part LB. of the lead opinion, in which I do not concur, represents only the view of the author, and thus has no precedential value.
. It is also worth noting that the syringe ultimately tested negative for controlled substances.