State v. Burdick

• Decision Date: 13 February 2014
• Docket Number: No. 20110878–CA.,20110878–CA.
• Citation: 320 P.3d 55,754 Utah Adv. Rep. 61
• Parties: STATE of Utah, Plaintiff and Appellee, v. Phillip Don BURDICK, Defendant and Appellant.
• Court: Utah Court of Appeals

320 P.3d 55

754 Utah Adv. Rep. 61

STATE of Utah, Plaintiff and Appellee,

v.Phillip Don BURDICK, Defendant and Appellant.

No. 20110878–CA.

Court of Appeals of Utah.

Feb. 13, 2014.

Samuel P. Newton, Attorney for Appellant.

Sean D. Reyes and Kenneth A. Bronston, Salt Lake City, Attorneys for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Opinion, in which Judge CAROLYN B. MCHUGH concurred in the result. Judge JAMES Z. DAVIS concurred in part and dissented in part, with opinion.

Opinion

CHRISTIANSEN, Judge:

¶ 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 a suspect. ¹ The person 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.

¶ 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.”

¶ 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, re-captioned 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.

¶ 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 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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 88 S.Ct. 1868). “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, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Defendant does not argue that it was improper for Detective Warren to conduct the pat down. Our inquiry is therefore focused on the...