State v. Dunkel

• Decision Date: 10 August 2006
• Docket Number: No. 20040875-CA.,20040875-CA.
• Citation: 2006 UT App 339,143 P.3d 290
• Parties: STATE of Utah, Plaintiff and Appellee, v. Casper Michael DUNKEL III, Defendant and Appellant.
• Court: Utah Court of Appeals

143 P.3d 290

2006 UT App 339

STATE of Utah, Plaintiff and Appellee, v. Casper Michael DUNKEL III, Defendant and Appellant.

No. 20040875-CA.

Court of Appeals of Utah.

August 10, 2006.

John T. Caine, Richards Caine & Allen, Ogden, for Appellant.

Mark L. Shurtleff, Attorney General, and Christine F. Soltis, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges GREENWOOD, ORME, and THORNE.

OPINION

ORME, Judge:

¶ 1 Casper Michael Dunkel III appeals from a conviction based on his guilty plea to the crime of operation of a clandestine laboratory, a first degree felony. See Utah Code Ann. §§ 58-37d-4, -5 (2002). Dunkel raises concerns about the validity of a traffic stop and the scope of his consent to the ensuing search of his vehicle. We affirm.

BACKGROUND

¶ 2 On the evening of October 11, 2002, Weber County Deputy Sheriff Steve Haney stopped Dunkel for an apparent traffic violation. While requesting Dunkel's driver's license and registration, Deputy Haney — a drug recognition expert — thought Dunkel appeared lethargic, had droopy eyes, and seemed disoriented. Absent the scent of alcohol, Deputy Haney was suspicious that Dunkel was under the influence of some type of narcotic. When questioned about drug use, Dunkel denied recently consuming any illegal drugs, admitting only to taking his prescription Xanax earlier in the day. Deputy Haney had Dunkel exit the car to test his sobriety, and Dunkel failed the various field sobriety tests Deputy Haney administered. Deputy Haney then asked Dunkel for permission to search the car for drugs, and Dunkel consented.

¶ 3 Deputy Haney searched the car from bumper to bumper, including the trunk. When Deputy Haney opened the trunk, with keys he had retrieved from the ignition, he found it held a "big blue storage container." This discovery prompted Deputy Haney to ask, "What do we have here?" or "What's in this?" And Dunkel replied to the questions with something along the lines of "I don't know" or "I'm not sure. It's a friend of mine's and I can't give you permission to search it." Deputy Haney proceeded to open the blue container and found that it held equipment and other objects typically associated with the operation of a methamphetamine laboratory. Dunkel was then placed under arrest.

¶ 4 Charged with possession of clandestine laboratory precursors and equipment, Dunkel filed a motion to suppress the evidence found in the container. Dunkel argued that the search of the container violated his Fourth Amendment rights. He contended that the statements he made to Deputy Haney when asked about the container in the trunk either expressly revoked or limited his consent to the search of the container.

¶ 5 The trial court denied Dunkel's motion. It found that Dunkel's statements to Deputy Haney about the container manifested that Dunkel did not own the container and that he did not have the authority from its owner to consent to a search of it. The court concluded that Dunkel's statements "did not revoke his consent to search the vehicle" and that Dunkel did not have standing to seek to suppress the contents of the container because he claimed he did not own the container. Dunkel subsequently entered a conditional guilty plea, preserving his right to appeal the trial court's ruling on the motion to suppress, and Dunkel was sentenced to a term of five years to life in the Utah State Prison.

ISSUES AND STANDARDS OF REVIEW

¶ 6 Dunkel appeals the trial court's denial of his motion to suppress. On such an appeal, "[w]e review the trial court['s] factual findings underlying the denial of a motion to suppress for clear error, while conclusions of law are reviewed for correctness." State v. Galli, 967 P.2d 930, 933 (Utah 1998).

¶ 7 Dunkel also argues that his trial counsel was ineffective — or alternatively, that the trial court committed plain error — by failing to question the legality of the original traffic stop and, thus, that we should now consider his argument concerning the traffic stop. "An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law." State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. Likewise, "[p]lain error is a question of law reviewed for correctness." State v. Smit, 2004 UT App 222, ¶ 7, 95 P.3d 1203.

ANALYSIS

I. Validity of the Traffic Stop

¶ 8 We first address Dunkel's argument that the initial traffic stop was itself illegal. Dunkel asserts that Deputy Haney lacked a reasonable articulable suspicion to justify the stop. The State contends, however, that we cannot consider Dunkel's challenge to the traffic stop because he did not specifically raise the issue below or preserve it for appeal by the terms of his conditional plea agreement.¹ Nevertheless, even assuming that Dunkel may now properly raise this issue through a claim of ineffective assistance of counsel or plain error, his argument is without merit.

¶ 9 It is well settled that if a traffic violation is committed in an officer's presence, the officer has not only reasonable suspicion, but probable cause to stop the vehicle. See, e.g., State v. Preece, 971 P.2d 1, 5 (Utah Ct.App.1998). Although Deputy Haney could not clearly remember while testifying whether Dunkel had run a stop sign or failed to yield the right of way after stopping at the stop sign, it is clear that Dunkel committed some sort of traffic violation in Deputy Haney's presence. And Dunkel's testimony at the suppression hearing that he apologized to Deputy Haney corroborates Deputy Haney's report that a traffic violation had been committed.

¶ 10 Consequently, Dunkel's assertion that his counsel was ineffective for failing to pursue a challenge to the traffic stop is without merit because such a challenge would have proved futile. See Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) ("`[T]he failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance.'") (citation omitted). For the same reason, the trial court's failure to address the constitutionality of the traffic stop was not plain error. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) (stating that the first step in establishing plain error is to show that "[a]n error exists").

II. Denial of the Motion to Suppress

¶ 11 Dunkel does not dispute that his initial consent to the search of his car was voluntary. Instead, he claims that his subsequent statements to Deputy Haney about the container in the trunk either limited the scope of the vehicle search to which he had consented or served to withdraw his prior consent. Dunkel thus argues that Deputy Haney's search of the container was illegal and his motion to suppress should have been granted. Without reaching the issue, we assume for purposes of this appeal that Dunkel had proper standing to challenge the search of the container in his trunk. We nonetheless conclude that Dunkel's statements did not alter the scope of his consent to the search or effectively withdraw his prior consent, and thus, his motion to suppress was properly denied.

¶ 12 Consent to a police search is, of course, an exception to the warrant requirement of the Fourth Amendment. See, e.g., State v. Dunn, 850 P.2d 1201, 1217-18 (Utah 1993) ("One of the narrow exceptions to the warrant requirement is brought into play when a defendant voluntarily consents to a search, thereby waiving the constitutional requirement of a warrant."). Accord Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It is also well settled that a person may limit the scope of the search to which he consents. See Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). But where, as here, the person's initial consent to the search is reasonably understood to give general and unqualified permission to search a vehicle, such permission "usually extends to [the vehicle's] entirety, absent objection or limitation by the driver." United States v. Gregoire, 425 F.3d 872, 880 (10th Cir.2005).²

¶ 13 In addition, a person's general "[c]onsent to search for specific items includes consent to search those areas or containers that might reasonably contain those items." United States v. Kimoana, 383 F.3d 1215, 1223 (10th Cir.2004). See also Jimeno, 500 U.S. at 251, 111 S.Ct. 1801 (concluding that because "the scope of [the] search is generally defined by its expressed object," general consent to search for narcotics authorizes search "beyond the surfaces of the car's interior" and includes "containers within that car which might bear drugs"). Thus, general consent to search a vehicle for drugs extends the scope of the search to the trunk and most containers found therein that could contain narcotics. See State v. Castner, 825 P.2d 699, 705 (Utah Ct.App.1992) (concluding that because the defendant gave general consent to search, "the scope of the consent given extended to the contents of the containers found in the interior of the vehicle and the trunk").

¶ 14 Courts have almost universally acknowledged, however, that even general consent, once given, "may be withdrawn or limited at any time prior to the completion of the search."³ 4 Wayne R. LaFave, Search and Seizure § 8.1(c), at 45-46 (4th ed.2004). See, e.g., Painter v. Robertson, 185 F.3d 557, 567 (6th Cir.1999); United States v. Ho, 94 F.3d 932, 934 (5th Cir.1996); United States v. Jachimko, 19 F.3d 296, 299 (7th Cir.1994); Baxter v. State, 77 P.3d 19, 25 (Alaska Ct. App.2003); Burton v. United States, 657 A.2d 741, 746 (D.C.1994). Yet, in order to effectively withdraw a valid consent to a search — or to subsequently place limitations on the scope of the search — courts have generally required that a person do so by "an unequivocal act or statement." United States v. Ross, 263 F.3d 844, 846 (8th Cir. 2001) (internal quotations and citation omitted). See, e.g., United States v. Miner, 484 F.2d 1075, 1076 (9th Cir.1973) (finding withdrawal of implied...