State v. Beames

• Decision Date: 12 May 2022
• Docket Number: 20200699-CA
• Parties: STATE of Utah, Appellee, v. Rachel Nicole BEAMES, Appellant.
• Court: Utah Court of Appeals

511 P.3d 1226

STATE of Utah, Appellee,

v.Rachel Nicole BEAMES, Appellant.

No. 20200699-CA

Court of Appeals of Utah.

Filed May 12, 2022

Emily Adams and Benjamin Miller, Attorneys for Appellant

Simarjit S. Gill and Jennifer K. Zeleny, Salt Lake City, 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.

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.

BACKGROUND¹

¶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 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.

¶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 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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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, 104 S.Ct. 2052. 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, 104 S.Ct. 2052. 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, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

¶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, 113 S.Ct. 838, 122 L.Ed.2d 180 (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, 113 S.Ct. 838 (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...