State of Utah v. Phillip Don Burdick

¶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

State v. Burdick

1. 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, 937 P.2d 145, 147 (Utah

Ct. App. 1997). We recite all other facts in a light most favorable to

the jury's verdict. See State v. Hamilton, 2003 UT 22, ¶ 18, 70 P.3d

111.

20110878-CA 2 2014 UT App 34

a suspect. The person 1 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.

State v. Burdick

2. At trial, Detective Warren explained that he was placing

Defendant under arrest for possession of drug paraphernalia based

on his possession of the syringe.

20110878-CA 3 2014 UT App 34

¶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.”

State v. Burdick

20110878-CA 4 2014 UT App 34

¶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, recaptioned

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.

State v. Burdick

20110878-CA 5 2014 UT App 34

¶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

State v. Burdick

20110878-CA 6 2014 UT App 34

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 (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). "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 (1993). Defendant does not argue that

it was improper for Detective Warren to conduct the pat down.

Our inquiry is therefore focused on the proper scope of the pat

down under these circumstances.

¶13 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

State v. Burdick

3. Consent to search for specific items generally entails consent to

search "areas and containers that might reasonably contain those

items.” United States v. Romero, 247 F. App'x 955, 965 (10th Cir.

2007). Consent to search for weapons on the person, unless

otherwise limited, would therefore intuitively extend beyond a

mere pat down to a search of the pockets or other areas where a

weapon may be found. See, e.g., Stagg v. State, 678 S.E.2d 108, 111

(Ga. Ct. App. 2009) (concluding that the defendant had not "only

consented to a pat-down” but had "agreed to a general request for

consent to search his person for guns, knives, needles, or weapons”

that extended to a search of the contents of his pockets); State v.

Quale, 201 P.3d 273, 278 (Or. Ct. App. 2009) (concluding that under

objective evaluation of consent, a search for weapons included

"any place that weapons might be found, including [the

defendant's] backpack”). However, because we ultimately

conclude that Detective Warren's pat down complied with the

more stringent requirements of Terry, we need not address the

precise scope of Defendant's consent here.

20110878-CA 7 2014 UT App 34

of Terry. Rather, the scope 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, 500 U.S. 248, 251 (1991). Nevertheless, the object

of both a Terry frisk and the consent search at issue here is to

determine whether a suspect is in possession of any weapons that

pose a threat to officer safety. And while the scope of a Terry frisk

is less expansive than that of a full search, we find Terry and its

progeny instructive in analyzing the permissible scope of a

weapons search under these circumstances. See Terry, 392 U.S. at 26

(explaining that a Terry frisk "may realistically be characterized as

something less than a 'full' search”).3

¶14 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, 508 U.S. 366 (1993), explained that a frisk for

weapons under Terry does not include "squeezing, sliding and

State v. Burdick

20110878-CA 8 2014 UT App 34

otherwise manipulating the contents of the defendant's pocket—a

pocket which the officer already knew contained no weapon.” Id.

at 378 (citation and internal quotation marks omitted). However, if

an officer "lawfully pats down a suspect's outer clothing and feels

an object whose contour or mass makes its identity immediately

apparent, there has been no invasion of the suspect's privacy

beyond that already authorized by the officer's search for

weapons.” Id. at 375.

¶15 Defendant claims that Detective Warren manipulated his

clothing to discern that his pocket contained a syringe and in so

doing exceeded the scope 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

needles 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—I 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 testified only that he

patted the outside of Defendant's clothing in order to discern that

the object in his pocket was a syringe, and nothing in this testimony

suggests that he manipulated Defendant's clothing or his pocket.

Defendant has failed to direct this court to any record evidence that

State v. Burdick

20110878-CA 9 2014 UT App 34

Detective Warren's actions were anything other than patting the

outside of Defendant's pocket. He asserts only that Detective

Warren "potentially said” he manipulated some part of

Defendant's clothing in a police report that is not in the record

before this court. And Defendant's argument that Detective

Warren's "real careful” pat down represents an intrusive and

impermissible search is belied by the context of Detective Warren's

testimony, which makes clear that he was taking care to avoid

contact with any hidden needles, not carefully inspecting

Defendant's pocket.

¶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,

313 F.3d 1228, 1238 (10th Cir. 2002); see also State v. Ellis, 2012 UT

App 272, ¶ 8, 287 P.3d 471 ("[T]he allowable scope of a Terry frisk

is determined by the reasonableness of the officer's belief that an

object might be a weapon or might contain one, not by the degree

of his certainty that an object is or contains a weapon.”). We are not

convinced that a syringe is so nondescript that Detective Warren

could not have reasonably believed he had discovered a syringe

through a pat down. See, e.g., State v. Hunter, 615 So. 2d 727, 734

(Fla. Dist. Ct. App. 1993) ("We conclude that the officer was

justified in taking the item out of [the defendant's] pocket as a

result of a legitimate frisk for weapons and the officer's reasonable

belief that the object she felt was a syringe that could be used as a

weapon.”); State v. Eells, 696 P.2d 564, 565 (Or. Ct. App. 1985)

(observing that the officer discovered a syringe in the defendant's

pocket while conducting a frisk for weapons); Moore v.

Commonwealth, 487 S.E.2d 864, 866, 869 (Va. Ct. App. 1997)

(concluding that an officer's Terry frisk, during which the officer

"detected and removed from [the defendant's] pocket an

unsheathed syringe,” was reasonable under the circumstances); see

also Dickerson, 508 U.S. at 376 ("The very premise of Terry, after all,

is that officers will be able to detect the presence of weapons

State v. Burdick

4. 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.

20110878-CA 10 2014 UT App 34

through the sense of touch and Terry upheld precisely such a

seizure.”).

¶18 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 once Detective Warren identified the syringe under

these circumstances—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,

615 So. 2d at 734.

¶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, 508 U.S. 366, 375 (1993), we

conclude that Detective Warren's pat down of Defendant did not

exceed the scope of a Terry frisk or the scope of Defendant's

consent to search for weapons.

B. Defendant Has Not Demonstrated Error in the Trial Court's

Determination that a Syringe Can Be Used as a Weapon.4

¶20 Defendant argues that the trial court's determination that a

syringe can be used as a weapon "neglects the statute's plain

State v. Burdick

20110878-CA 11 2014 UT App 34

language” that defines a "dangerous weapon” and is therefore in

error. Defendant asserts that a weapon for purposes of a Terry frisk

is defined by Utah Code section 76-10-501, which provides,

"'Dangerous weapon' means an item that in the manner of its use

or intended use is capable of causing death or serious bodily

injury.” Utah Code Ann. § 76-10-501(6)(a) (LexisNexis 2012).

Defendant argues that a syringe does not meet the statutory

definition of a weapon under this section because syringes are most

commonly used for medical purposes and produce "almost nonexistent”

wounds, and the syringe in this case was not used for any

criminal conduct. See id. § 76-10-501(6)(b) (setting forth factors to be

used in determining whether an object is a dangerous weapon

under Utah Code section 76-10-501(6)(a), including the "character

of the wound produced,” "the manner in which the . . . object . . .

was used,” and "the other lawful purposes for which the . . .

object . . . may be used”).

¶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 -532. 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, 392 U.S. 1, 26, 30 (1968).

¶22 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

State v. Burdick

5. 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, 508 U.S. 366, 375–76 (1993). Under the "plain feel”

doctrine of Dickerson, if an object's incriminating character is not

immediately apparent, further search or seizure of the object is not

justified. See id. While Detective Warren ultimately arrested

Defendant for possession of drug paraphernalia, the trial court

ruled that the seizure of the syringe was justified because Detective

Warren identified it as a weapon, not because he identified it as

contraband by its "plain feel.” Defendant's argument therefore fails

to address the basis of the trial court's ruling, and we need not

address it further. See Golden Meadows Props., LC v. Strand, 2010 UT

App 257, ¶ 17, 241 P.3d 375.

6. The dissent asserts that the trial court's ruling that a syringe can

be used as a weapon is "impermissibly 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

(continued...)

20110878-CA 12 2014 UT App 34

syringe from Defendant's pocket. 5 "On appeal, the appellant is

required to clearly define the issues and provide accompanying

argument and authority; a reviewing court is not simply a

depository in which the appealing party may dump the burden of

argument and research.” State v. Honie, 2002 UT 4, ¶ 67, 57 P.3d

977. And we may not "assume the role of an advocate by

researching all applicable law and searching the entire record for

each and every indication of possible or potential error.” Id.

(citation and internal quotation marks omitted). Because Defendant

has failed to meet his burden of demonstrating error, I would

affirm the trial court's determination that a syringe can be used as

a weapon without expressing an opinion on the separate question

of whether a syringe is necessarily a dangerous weapon under

Utah law.6

State v. Burdick

6. (...continued)

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 to any record

evidence that the syringe did not have a needle. It is Defendant's

burden on appeal to demonstrate error in the trial court's ruling.

To do so he must "clearly define the issues and provide

accompanying argument and authority,” State v. Honie, 2002 UT 4,

¶ 67, 57 P.3d 977, and provide an adequate record for review, State

v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 ("[W]hen an appellant

fails to provide an adequate record on appeal, we presume the

regularity of the proceedings below.”). Under these circumstances

and given Defendant's limited briefing of his challenge to the trial

court's determination, I cannot "assume the role of an advocate”

and grant relief to Defendant on the basis of an argument he has

neither raised nor adequately supported. See Honie, 2002 UT 4, ¶ 67

(citation and internal quotation marks omitted).

20110878-CA 13 2014 UT App 34

C. Defendant's Probable Cause Argument Is Not Preserved.

¶23 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, 2010 UT

App 376, ¶ 10, 246 P.3d 1194 ("Because hypodermic needles and

syringes have legitimate medical purposes, . . . mere possession

does not establish probable cause that they are drug

paraphernalia.”). However, Defendant's argument that Detective

Warren did not have probable cause to arrest him for possessing

drug paraphernalia is foreclosed, as the State points out, because

Defendant failed to raise this argument before the trial court and

failed to argue plain error or exceptional circumstances on appeal.

State v. Burdick

20110878-CA 14 2014 UT App 34

¶24 "As a general rule, claims not raised before the trial court

may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11, 10

P.3d 346. To preserve an issue for appeal, the issue must be

specifically and timely raised before the trial court in such a way

that the trial court has an opportunity to rule on the issue, and "the

challenging party must introduce supporting evidence or relevant

legal authority.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99

P.3d 801. "[T]he preservation rule applies to every claim, including

constitutional questions, unless a defendant can demonstrate that

exceptional circumstances exist or plain error occurred.” Holgate,

2000 UT 74, ¶ 11 (citations and internal quotation marks omitted).

¶25 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, 2006 UT 4,

¶ 19, 128 P.3d 1171. Thus, we recognize that Defendant should be

"accorded every consideration that may reasonably be indulged.”

Id. (citation and internal quotations marks omitted). Nevertheless,

"a party who represents himself will be held to the same standard

of knowledge and practice as any qualified member of the bar.” Id.

(citation and internal quotation marks omitted). Thus, "even

though this court 'generally is lenient with pro se litigants' and is

'understandably loath to sanction them for a procedural misstep

here or there,' we cannot advocate on their behalf or ignore the

requirements necessary to preserve an issue for appeal.” Tolle v.

Fenley, 2006 UT App 78, ¶ 70, 132 P.3d 63 (Thorne, J., concurring)

(quoting Lundahl v. Quinn, 2003 UT 11, ¶ 4, 67 P.3d 1000).

¶26 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

State v. Burdick

7. 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

founded, the trial court allowed counsel to withdraw so that

Defendant could proceed with his motion pro se. The trial court

then appointed new counsel for Defendant shortly after the hearing

on Defendant's motion.

20110878-CA 15 2014 UT App 34

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.

¶27 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.7 His appellate

counsel could have argued plain error or exceptional circumstances

but did not. See Delaney v. Labor Comm'n, 2008 UT App 141U,

para. 5 (declining to depart from our preservation rule where

appellate counsel for a previously pro se litigant did not argue

plain error or exceptional circumstances on appeal). Accordingly,

we decline to review Defendant's challenge to the legality of his

arrest.

¶28 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, 371 U.S. 471, 488 (1963). Accordingly, we

conclude that the trial court did not err in denying Defendant's

motion to suppress evidence.

II. Defendant's Trial Counsel Was Not Ineffective for Failing to

Raise Defendant's Previously Filed Pro Se Motion to Dismiss.

¶29 Defendant argues that his trial counsel was ineffective in

failing to formally pursue Defendant's pro se motion to dismiss

State v. Burdick

8. Defendant does not argue that the trial court erred in declining

to rule on his pro se motion, perhaps recognizing that "[w]hen 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, 2006 UT App 327, ¶ 33, 143 P.3d 302 (citation and

internal quotation marks omitted).

20110878-CA 16 2014 UT App 34

based on the detectives' alleged lack of jurisdiction to conduct their

investigation. To succeed 8 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, 466 U.S. 668, 687 (1984). To

establish that counsel's performance was deficient, a defendant

"must show that counsel's representation fell below an objective

standard of reasonableness." Id. at 688. This showing requires the

defendant to overcome the "strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. To establish the prejudice prong of an

ineffective assistance of counsel claim, the defendant "must show

that a reasonable probability exists that, but for counsel's error, the

result would have been different.” State v. Millard, 2010 UT App

355, ¶ 18, 246 P.3d 151 (citation and internal quotation marks

omitted).

¶30 "[T]he burden of proving that counsel was ineffective is

placed firmly upon the defendant.” State v. C.D.L., 2011 UT App 55,

¶ 39, 250 P.3d 69. "If a defendant is aware of any 'nonspeculative

allegation of facts, not fully appearing in the record on appeal,

which, if true, could support a determination that counsel was

ineffective,' defendant bears the primary obligation and burden of

moving for a temporary remand.” State v. Litherland, 2000 UT 76,

¶ 16, 12 P.3d 92 (quoting Utah R. App. P. 23B). "Otherwise, an

inadequate record, even one riddled with ambiguities, deficiencies,

and the like, 'will be construed in favor of a finding that counsel

performed effectively.'” C.D.L., 2011 UT App 55, ¶ 39 (quoting

Litherland, 2000 UT 76, ¶ 17).

State v. Burdick

9. 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).

20110878-CA 17 2014 UT App 34

¶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

section 77-9-3.9 He contends that "there is no evidence from the

record that the officers were working in cooperation with the local

authority as required for [Utah Code section 77-9-3(1)(c)].” (Internal

quotation marks omitted.)

¶32 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 scene—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

State v. Burdick

20110878-CA 18 2014 UT App 34

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, 2000 UT 76, ¶ 17. We must

therefore construe this omission in the record in favor of a finding

that the Defendant's motion would have been unavailing. Counsel

therefore did not perform deficiently in declining to pursue

Defendant's pro se motion to dismiss.

III. Trial Counsel Was Not Ineffective for Failing to Move for a

Directed Verdict.

¶34 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, 466 U.S. 668, 687

(1984). However, "[i]t is well settled that counsel's performance at

trial is not deficient if counsel refrains from making futile

objections, motions, or requests.” State v. Perez-Avila, 2006 UT App

71, ¶ 7, 131 P.3d 864 (citing State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d

546).

¶35 "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., 2011 UT App 55, ¶ 15, 250 P.3d

69 (omission in original) (citation and internal quotation marks

omitted). Thus, if the State presented "no competent evidence”

from which the jury could find that Defendant had constructively

possessed the methamphetamine, then trial counsel "should have

moved for a directed verdict, and failure to do so would likely

State v. Burdick

20110878-CA 19 2014 UT App 34

constitute deficient performance.” See id. (citations and internal

quotation marks omitted). Conversely, if the State presented "some

evidence . . . from which a reasonable jury could find” that

constructive possession had been proven beyond a reasonable

doubt, "a directed verdict could not properly be granted” and trial

counsel's decision not to raise a futile motion for a directed verdict

would not be deficient performance. See id. (omission in original);

see also Perez-Avila, 2006 UT App 71, ¶ 7. In determining whether a

motion for directed verdict could have been granted, we view the

evidence presented at trial in the light most favorable to the State.

State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183.

¶36 "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.

Gonzalez-Camargo, 2012 UT App 366, ¶ 17, 293 P.3d 1121 (quoting

State v. Workman, 2005 UT 66, ¶ 31, 122 P.3d 639). "Whether a

sufficient nexus exists 'depends upon the facts and circumstances

of each case.'” Id. (quoting Workman, 2005 UT 66, ¶ 31). In

determining whether the nexus in a particular case is sufficient,

several factors may be important, including ownership or

occupancy of the residence where the drugs were found, the

"presence of [the] defendant at the time drugs were found,” the

"defendant's proximity to the drugs,” the defendant's "previous

drug use,” "incriminating statements or behavior” by the

defendant, and the "presence of drugs in a specific area where the

defendant had control.” Workman, 2005 UT 66, ¶ 32.

¶37 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

State v. Burdick

20110878-CA 20 2014 UT App 34

of methamphetamine by Defendant's feet, 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.

¶38 Defendant argues that each circumstance 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, 2004 UT 5, ¶ 29, the facts taken

together amount to "some evidence” from which a reasonable jury

could find that there was a sufficient nexus between Defendant and

the bag of methamphetamine that his constructive possession of

methamphetamine was proved beyond a reasonable doubt, see

C.D.L., 2011 UT App 55, ¶ 15; see also Workman, 2005 UT 66, ¶ 35

("Taken alone, it is not likely that any one, or even a small group,

of these factors would be enough to establish a sufficient nexus

between [the defendant] and the clandestine lab. However, we hold

that the cumulative effect of these factors is such that a reasonable

jury could have concluded that there was a sufficient nexus

between [the defendant] and the clandestine lab to satisfy the

possession element of the statute.”).

¶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, 396 P.2d 872, 874 (Utah 1964); accord People v.

Garcia, 971 N.E.2d 1150, 1154 (Ill. App. Ct. 2012) ("Possession of

State v. Burdick

20110878-CA 21 2014 UT App 34

contraband can be, and often is, joint. Evidence of a defendant's

possession of drugs therefore does not rule out possession by

another defendant.”).

¶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., 2011 UT App 55, ¶ 15,

250 P.3d 69 (citation and internal quotation marks omitted).

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 scope 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 trial

counsel did not provide ineffective assistance of counsel in failing

to formally raise Defendant's argument that the Riverdale City

detectives lacked jurisdiction to conduct their investigation in

Ogden City. Finally, Defendant's trial counsel was not ineffective

for not moving for a directed verdict at the close of the State's case,

because such a motion would have been futile. We affirm

Defendant's convictions.

DAVIS, Judge (concurring in part and dissenting in part):

¶42 I dissent from the lead opinion solely with regard to its

analysis under Part I.B., in which Judge Christiansen endorses the

trial court's determination that the syringe could be used as a

State v. Burdick

10. Because Judge McHugh concurs only in the result of affirming

Defendant's conviction, the lead opinion has majority support and

thus precedential value only with respect to the portions of the

opinion with which I concur. Part I.B. of the lead opinion, in which

I do not concur, represents only the view of the author, and thus

has no precedential value.

20110878-CA 22 2014 UT App 34

dangerous weapon.10 See supra ¶¶ 20–22. As to all other parts of the

lead opinion, I concur.

¶43 The trial court's ruling on Defendant's motion to suppress

includes the impermissibly 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 I.B. Cf. United States v. Rue, 988 F.2d 94, 96 (10th Cir.

1993) (syringe used as a stabbing implement, indicating that it had

an attached needle, was considered a deadly weapon); People v.

Autry, 283 Cal. Rptr. 417, 418 (Cal. Ct. App. 1991) ("[A]

contaminated hypodermic needle is one of the more deadly objects

one can imagine outside of firearms.”); State v. Nimer, 2010 UT

App 376, ¶ 3, 246 P.3d 1194 (the defendant admitted to having

syringes with uncapped needles attached in his pocket); State v.

White, 856 P.2d 656, 658 (Utah Ct. App. 1993) (a police officer

removed an uncapped needle from the defendant's pocket). A

syringe, by definition, is not necessarily accompanied by an

attached needle. See, e.g., Syringe, Merriam–Webster Online,

http://www.merriam-webster.com/dictionary/syringe (last visited

Feb. 3, 2014) (defining "syringe” as "a device used to inject fluids

into or withdraw them from something,” "a device that consists

of a nozzle of varying length and a compressible rubber bulb

and is used for injection or irrigation,” and "an instrument

(as for the injection of medicine or the withdrawal of

bodily fluids) that consists of a hollow barrel fitted with a

plunger and a hollow needle”); Syringe, Oxford Dictionaries,

http://www.oxforddictionaries.com/us/definition/american_engli

State v. Burdick

20110878-CA 23 2014 UT App 34

sh/syringe (last visited Feb. 3, 2014) (defining "syringe” as "a tube

with a nozzle and piston or bulb for sucking in and ejecting liquid

in a thin stream, used for cleaning wounds or body cavities, or

fitted with a hollow needle for injecting or withdrawing fluids”

(emphasis added)).

¶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 I.B., "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, 392 U.S. 1, 26, 30 (1968)). Similarly, the general definition of

a dangerous weapon provided in the Utah Code broadly defines a

dangerous weapon as "any item capable of causing death or

serious bodily injury.” Utah Code Ann. § 76-1-601(5)(a) (LexisNexis

2012). However, under either approach, I cannot see how the

syringe in this case, without evidence of an attached needle, would

be "capable of causing death or serious bodily injury,” see id.

¶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 victim

verbally or in any other manner that he is in control of such an

item.” Id. § 76-1-601(5)(b). Here, Defendant denied having any

sharp objects on his person and he did not attempt to access the

syringe. Indeed, it is not clear that Detective Warren handcuffed

Defendant because of any threat he may have perceived from the

presence of the syringe where, after Detective Warren commented

on feeling the syringe in Defendant's pocket, Defendant turned

toward him aggressively with an arm raised, visibly upset and

yelling. Furthermore, Detective Warren did not "disarm”

Defendant after discovering the syringe, see Terry, 392 U.S. at 30,

State v. Burdick

11. It is also worth noting that the syringe ultimately tested

negative for controlled substances.

20110878-CA 24 2014 UT App 34

but did so some time later, implying that Detective Warren did not

"reasonably believe” the syringe was a dangerous weapon. See

Utah Code Ann. § 76-1-601(5)(b). However, by endorsing the trial

court's determination on this record that a syringe can be used as

a weapon, Part I.B. effectively holds that anyone carrying a syringe

for a legitimate purpose, e.g., an insulin-dependent diabetic, is

guilty of carrying a weapon.

¶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.11

See above