State v. Gallegos

• Decision Date: 29 October 1998
• Citation: 967 P.2d 973
• Parties: 355 Utah Adv. Rep. 8 STATE of Utah, Plaintiff and Appellee, v. David A. GALLEGOS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 973

967 P.2d 973

355 Utah Adv. Rep. 8

STATE of Utah, Plaintiff and Appellee, v. David A. GALLEGOS, Defendant and Appellant.

Court of Appeals of Utah.

Oct. 29, 1998.

Michael J. Boyle, Ogden, for Defendant and Appellant.

Jan Graham, Marian Decker, and Norman E. Plate, Salt Lake City, for Plaintiff and Appellee.

Before BENCH, GREENWOOD and JACKSON, JJ.

OPINION

GREENWOOD, Judge:

Defendant David A. Gallegos appeals his convictions for possession of methamphetamine, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2)(i) (1996); possession of cocaine, a third degree felony, in violation of Utah Code Ann. § 58-37-8(2) (1996); and possession of drug paraphernalia, a class B misdemeanor, in violation of Utah Code Ann. § 58-37a-5(1) (1996). We conclude the convictions were based on evidence obtained in an unlawful search and that defendant's counsel provided ineffective assistance by failing to object to admission of this evidence at trial, and remand the case to the trial court for a determination of whether defendant has standing to assert his Fourth Amendment unreasonable search claim.

BACKGROUND

In mid-June 1995, Deputies Zwemke and Hartley learned that there was an outstanding arrest warrant for defendant for burglary. They received information from a confidential informant that defendant was staying in an apartment rented by Corinna Pasalles. On June 29, the deputies approached the apartment and noticed that a car known to be used by defendant was parked nearby. After calling for back up, the deputies entered the apartment and found a male and female on the couch in the front living room. The deputies then proceeded to a back bedroom where they found defendant hidden in a hole cut into the floor, covered by carpet. With guns drawn, they ordered defendant out of the hole and to put his hands in the air. As defendant crawled out of the hole, he reached his right hand between the mattress and box spring of a bed about two feet away. The deputies again told defendant to raise his hands. After a few moments, defendant complied. Deputy Zwemke then took defendant into custody and handcuffed him. In a search of defendant's person, Deputy Zwemke found a syringe in defendant's left front pocket. Deputy Zwemke then removed defendant to the apartment's living room. At about the same time, Deputy Hartley searched between the mattresses where defendant had put his hand and found a fully loaded .22 caliber pistol. After another officer arrived to watch defendant, Hartley and Zwemke went back into the bedroom and conducted a further search to ensure there were no additional unsecured weapons in that room. Ms. Pasalles was in the bedroom at the time. During this search, Deputy Zwemke noticed a purple tin on a shelf in the closet of the bedroom. Deputy Zwemke inspected the tin's contents and found five small plastic baggies, two containing cocaine residue and two containing methamphetamine residue. The tin also contained a scale-like object, two razor blades, and copies of defendant's birth certificate, social security card, and Utah identification card.

Defendant was charged with possession of a dangerous weapon by a convicted person, possession of methamphetamine, possession of cocaine, and possession of drug paraphernalia. At the preliminary hearing, Deputies Hartley and Zwemke explained the circumstances under which they had located defendant and found the gun between the mattresses. Deputy Zwemke explained that after the gun was found, he returned to the bedroom "to assist to locate any other weapons that might be concealed within the apartment in the bedroom area." While searching, he "found a small purple metal tin container in the closet which had assorted paraphernalia items and also five small plastic baggies with a white powdery salmon colored substance," and a copy of defendant's birth certificate. The tin was about three inches by four inches by two inches, and had no lid. "I was just making sure there wasn't any guns or anything." Defendant was handcuffed and in the front room at the time. Ms. Pasalles was standing behind Deputy Zwemke when he found the tin.

Defendant filed a motion to suppress both the gun and the evidence found in the purple tin. Although the State at that time challenged defendant's standing to assert a Fourth Amendment protection in the searched bedroom, the parties agreed to let the trial court first determine whether the search was reasonable, since a determination on that point might render the standing issue moot.

Evidence offered on the motion to suppress consisted solely of the tape recording of the preliminary hearing. After listening to the tape, the trial court ruled orally

that the statutory interpretation under section [77-7-9 of the Utah Code], the about his person means the area that is within the defendant's reach at the time of the arrest, not the search. And that it may be searched incident to an arrest to ascertain the existence of a weapon. Therefore, the court denies the motion to suppress the finding of the weapon.

Court also rules that the drugs found in the tin were in plain view of the officer who entered lawfully. And that the evidence was clearly incriminating on its face. For that reason, that evidence also is not suppressed.

A jury trial began December 18, 1995.

At trial, Ms. Pasalles testified that the bedroom in which defendant was found was approximately eleven feet wide by twenty feet long. Deputy Zwemke again explained that, once the gun was found, he went back into the bedroom to make sure that there were no more unsecured weapons in that area. "[J]ust looking in the closet area, up on a high shelf in the closet, I found a purple tin." Zwemke stated that he then picked up the tin to see what was in it:

Q. Okay. And you actually had to pick it up before you could look inside of it?

A. Well, yeah. It was kind of up on a shelf. I couldn't--wasn't tall enough to see up on top there.

Q. Okay. So when you picked it up, you could feel its weight.

A. Well, yeah.

Q. Did it feel like it had any weapons in it?

A. I didn't know until I looked.

Q. Okay. Didn't feel heavy enough to have a gun in it.

A. Probably not heavy enough for a gun, no.

Q. Wasn't big enough to put a very big knife in it, right?

A. No, but--

Q. Okay. Now, after you picked it up and you looked inside of it, what did you do with the box?

A. After I looked, when I grabbed it, I looked down and looked to see what was in there, the contents, and that's when I noticed these little baggies that were laying in the bottom of the box....

The jury found defendant guilty of the drug-related charges, but not guilty of possession of a dangerous weapon by a convicted person. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

Defendant's primary contention on appeal is that the trial court should have excluded drug evidence found in the purple tin as evidence resulting from an unreasonable search. Specifically, defendant argues that his trial counsel was ineffective for failing to renew his suppression motion when it became evident from Deputy Zwemke's trial testimony that the tin's contents were not immediately obvious to the detective and thus were not, in fact, in his plain view. ¹ Defendant asserts his counsel's deficient performance prejudiced him because the evidence found in the tin was the only evidence supporting his drug possession convictions, and the evidence was not otherwise admissible since the State failed to provide sufficient facts to demonstrate that the search was reasonable as a search incident to arrest, the only alternative theory argued by the State.

"When, as in this case, the claim of ineffective assistance is raised for the first time on appeal, we resolve the issue as a matter of law." State v. Strain, 885 P.2d 810, 814 (Utah Ct.App.1994) (footnote omitted); see also State v. Callahan, 866 P.2d 590, 593 (Utah Ct.App.1993).

ANALYSIS

To bring a successful ineffective assistance of counsel claim, "a defendant must show that trial counsel's performance was deficient in that it 'fell below an objective standard of reasonableness,' and that the deficient performance prejudiced the outcome of the trial." State v. Garrett, 849 P.2d 578, 579 (Utah Ct.App.1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)).

I. Deficient Performance

Defendant argues that his trial counsel was ineffective for failing to renew his motion to suppress the drug evidence found in the tin when it became obvious during trial that the tin evidence was not in Detective Zwemke's plain view prior to the detective's taking the tin from the closet shelf.

To establish that counsel's performance was deficient, "the defendant must overcome the presumption that under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id.(quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted)). Although " 'failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance,' " Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994) (quoting Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983)), "where a defendant can show that there was no conceivable legitimate tactical basis for counsel's deficient actions, the first prong of Strickland is satisfied." State v. Snyder, 860 P.2d 351, 359 (Utah Ct.App.1993) (finding no tactical basis for failure to file motion to suppress damaging statements within time required under statute).

At the preliminary hearing, Deputy Zwemke testified that, after Deputy Hartley found a gun between the mattresses in the bedroom and brought the gun into the living room to show the other officers, Zwemke returned to the bedroom to help locate any other weapons that might be concealed in the bedroom. While searching, Deputy Zwemke "found a small purple metal tin container in the closet which had assorted paraphernalia...