District Court, Cedar City Department The Honorable Keith C.
Barnes No. 131500333
W. Sessions, Attorney for Appellant
D. Reyes and Thomas B. Brunker, Attorneys for Appellee
Ryan M. Harris authored this Opinion, in which Judges Gregory
K. Orme and Michele M. Christiansen concurred.
Mark John Lantz (Defendant) was the owner of, and passenger
in, a vehicle that was pulled over by a law enforcement
officer (Officer) in a routine traffic stop. Officer found
marijuana, methamphetamine, and drug paraphernalia in the
vehicle. Before trial, Defendant's counsel moved to
suppress this evidence, then withdrew the motion to suppress.
Defendant appeals, arguing that his counsel was
constitutionally ineffective by not pressing the motion to
suppress. We disagree, and therefore affirm.
On June 21, 2013, while patrolling Interstate 15, Officer
noticed a vehicle with a malfunctioning rear turn signal and
an apparently malfunctioning front right wheel. According to
Officer, the vehicle was "bouncing all over the
road" and "looked extremely unsafe." Officer
pulled over the vehicle, which was occupied by a driver
(Driver) and Defendant, who was sitting in the front
passenger seat. After approaching the vehicle, Officer began
speaking with both Driver and Defendant, and they informed
Officer that Defendant was the registered owner of the
vehicle, and that neither one of them had a valid
driver's license. During the conversation, Officer
smelled the odor of burnt marijuana emanating from the
vehicle. Based on that, Officer asked Driver to step out of
the car, at which point Driver admitted that both Driver and
Defendant had smoked marijuana very recently at a truck stop
about 20 miles away.
At some point, Defendant also got out of the car, and Officer
asked Defendant a series of questions. Because no
witness-either at trial or at the pretrial evidentiary
hearing in connection with the motion to suppress-was ever
asked about Miranda warnings, there is no indication
in the record, one way or the other, whether Officer gave
Defendant Miranda warnings prior to asking
questions. Among other things, Officer asked Defendant if he
had any illegal drugs in the car, and Defendant refused to
answer. Officer then asked Defendant if the drugs were
"on him or in the car" and, according to Officer,
this time Defendant responded by stating that
"[t]hey're in the car." At this point, Officer
detained Defendant and searched the vehicle. Officer found
approximately $2, 000 in cash on Defendant's person, and
found marijuana, methamphetamine, and drug paraphernalia in
the car. According to Officer, after being asked about some
of the paraphernalia, Defendant admitted it was his. Officer
arrested both Defendant and Driver. After taking Defendant to
jail, Officer explained to Defendant that Officer was seizing
the money that had been found on Defendant because Officer
believed the money was associated with drugs. Officer
testified that Defendant replied by saying "Yes, "
and Officer believed that statement to be an affirmation that
the money was associated with drugs.
Lantz's version of events differed from Officer's.
Lantz testified at trial that he had no idea that there was
methamphetamine in the vehicle, and denied that he ever told
Officer that there was. Indeed, Lantz testified that he
refused to answer any of Officer's questions, and that he
never replied by saying "Yes" to Officer's
remark that the money was being seized.
Prior to trial, Defendant's counsel filed a motion to
suppress any and all evidence resulting from the traffic
stop. Defendant's counsel predicated this motion on the
argument that Officer had "illegally detained, searched,
and arrested" Defendant in violation of the Fourth
Amendment to the United States Constitution. Defendant made
no argument based on the Fifth Amendment, and specifically no
argument that his incriminating statements should be
suppressed due to the absence of Miranda warnings.
After an evidentiary hearing, Defendant's counsel asked
for leave to file a memorandum supporting the motion, which
the court granted. However, Defendant's counsel did not
ever file any such memorandum, and later opted to voluntarily
withdraw the motion to suppress.
After trial, a jury convicted Defendant of two counts of
possession of a controlled substance and one count of
possession of drug paraphernalia. Defendant appeals, and asks
us to review one issue: whether his trial counsel rendered
ineffective assistance by failing to press a motion to
suppress. When a defendant asserts, for the first
time on appeal, that his trial counsel was ineffective,
"there is no lower court ruling to review and we must
determine whether the defendant was deprived of the effective
assistance of counsel as a matter of law." State v.
Tirado, 2017 UT App 31, ¶ 10, 392 P.3d 926.
To succeed on a claim that counsel was constitutionally
ineffective, Defendant "must show: (1) that
counsel's performance was objectively deficient, and (2)
a reasonable probability exists that but for the deficient
conduct defendant would have obtained a more favorable
outcome at trial." State v. Clark, 2004 UT 25,
¶ 6, 89 P.3d 162. To satisfy the first element,
Defendant "must overcome the strong presumption that
[his] trial counsel rendered adequate assistance by
persuading the court that there was no conceivable
tactical basis for counsel's actions."
Id. (alteration in original) (citations and internal
quotation marks omitted). Trial counsel is given "wide
latitude in making tactical decisions, " and courts
"will not question such decisions unless there is no
reasonable basis supporting them." Id.
(citation and internal quotation marks omitted). To satisfy
the second element, Defendant must demonstrate that
"'any deficiencies in counsel's performance
[were] prejudicial to the defense.'" State v.
Mohamud, 2017 UT 23, ¶ 14, 395 P.3d 133 (alteration
in original) (quoting Strickland v. Washington, 466
U.S. 668, 692 (1984)).
As to the first element, Defendant contends that his trial
counsel's performance was deficient because his trial
counsel did not submit a memorandum in support of the motion
to suppress. Defendant maintains that this action constituted
"neglect" rather than "a strategic
decision" because "there was no action of any kind
taken to further or withdraw the [m]otion." Defendant
also appears to argue that his trial counsel's
performance was deficient because his trial counsel moved
only to suppress all evidence resulting from the traffic
stop, instead of specifically moving to suppress
Defendant's "confession." While it is not
entirely clear which of his statements Defendant considers to
have been his "confession, " Defendant seeks to
bolster the assertion that his trial counsel should have
moved to suppress it by alleging for the first time on appeal
that Defendant was not Mirandized prior to the
"confession." We are unpersuaded.
First, we note that Defendant is mistaken as to the actions
taken by his trial counsel. In fact, Defendant's trial
counsel affirmatively withdrew the motion to suppress.
Further, to the extent Defendant's arguments can be read
as asserting that his trial counsel should not have withdrawn
the motion, Defendant does not argue that the motion to
suppress would have been granted had it not been withdrawn.
The motion to suppress that counsel filed (and later
withdrew) rested on the assertion that Officer had violated
Defendant's rights guaranteed by the Fourth Amendment,
but Defendant makes no argument concerning the Fourth
Amendment on appeal. Because Defendant does not set forth any
facts or law on appeal supporting the proposition that his
Fourth Amendment motion to suppress would have been
successful, a thorough review of that proposition would
require this court to conduct extensive independent research.
Accordingly, the issue is inadequately briefed. See State
v. Turner, 2012 UT App 189, ¶ 29, 283 P.3d 527
(stating that "[a]n issue is inadequately briefed when