State v. Martinez-Castellanos , 440 P.3d 896 ( 2019 )

2019 UT App 50THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ABISAI MARTINEZ-CASTELLANOS,
Appellant.
Opinion
No. 20130432-CA
Filed April 4, 2019
Fourth District Court, Nephi Department
The Honorable M. James Brady
No. 101600146
Linda M. Jones and Noella A. Sudbury, Attorneys
for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGE DAVID N. MORTENSEN concurred. JUDGE GREGORY K. ORME
concurred specially, with opinion.
APPLEBY, Judge:
¶1 This case is on remand from the Utah Supreme Court.
Abisai Martinez-Castellanos was convicted of two counts of
possession of or use of a controlled substance, one count of
possession of drug paraphernalia, and one count of driving with
a controlled substance in the body after a Utah Highway Patrol
trooper (Officer) found drugs and drug paraphernalia in his car
during a traffic stop.
¶2 Martinez-Castellanos appealed his convictions to this
court, arguing that his trial attorney (Trial Counsel)
was ineffective during jury selection and for failing to
adequately litigate a motion to suppress evidence. He also
State v. Martinez-Castellanos
argued that the district court erred in post-trial proceedings in
which separate conflict counsel was appointed to represent
Martinez-Castellanos on whether Trial Counsel was ineffective
during the motion to suppress stage.
¶3 On appeal, this court determined that, although each of
Martinez-Castellanos’s claims constituted error, based on
the lack of sufficient prejudice, none of those errors warranted
reversal on its own. We made that determination, in
part, because his claims regarding the motion to suppress
required a showing that the motion was meritorious, and
the lack of representation that he received on that motion
made us reluctant to resolve the issue based on the facts in
the record. We nonetheless reversed and remanded for a
new trial because the cumulative effect of the errors
undermined our confidence that Martinez-Castellanos received a
fair trial.
¶4 On certiorari, the Utah Supreme Court reversed our
decision, concluding that, without a determination that the
motion to suppress was meritorious, two of the three errors
could not have caused Martinez-Castellanos any harm and
therefore could not cumulate into reversible error. But the court
noted that, with such a determination, each of those errors
would support a reversal on its own. Thus, the court remanded
the case for us to determine the narrow issue of whether the
motion to suppress was meritorious.
¶5 Based on the record and arguments before us, we
conclude that the motion to suppress was not meritorious.
Specifically, Martinez-Castellanos has failed to demonstrate a
reasonable probability that the motion would have been granted
but for Trial Counsel’s ineffective assistance. We therefore affirm
Martinez-Castellanos’s convictions because the errors in the
district court did not result in sufficient prejudice to warrant
reversal. But because of an error in Martinez-Castellanos’s
sentence for one of the counts of possession of a controlled
substance, we vacate his sentence on that count and remand for
the district court to correct the error.
20130432-CA 2 2019 UT App 50State v. Martinez-Castellanos
BACKGROUND
¶6 During a traffic stop in 2010, Officer discovered drugs and
drug paraphernalia in Martinez-Castellanos’s car. 1 Officer
arrested Martinez-Castellanos and obtained a blood sample
that later tested positive for a marijuana metabolite at a
level consistent with recent use. The State charged
Martinez-Castellanos with two counts of possession or use of a
controlled substance, one count of possession of drug
paraphernalia, and one count of driving with a controlled
substance in the body.
¶7 Before trial, Trial Counsel filed a motion to suppress all
evidence seized “at the time of [Martinez-Castellanos’s] arrest,”
including the drugs and drug paraphernalia found in the car and
the blood sample. The motion asserted that this evidence “was
seized in violation of Martinez Castellanos’s constitutional rights
to be free from unreasonable searches and seizures.” In the
motion, Trial Counsel requested an evidentiary hearing “to
determine if appropriate consent was given and, if there was no
consent given, that all evidence seized be suppressed and not be
admitted as evidence in any proceeding hereafter.”
¶8 A week after Trial Counsel filed the motion to suppress,
the district court held an evidentiary hearing on the motion, at
which Officer was the only witness. Officer first discussed his
relevant “training and experience with drug interdiction and
detection.” He said he had “been an officer for about 20 years in
various capacities,” and had “been on the Utah Highway Patrol
drug and interdiction squad since 2001.” He had “been through
numerous training classes associated with the interdiction
1. We limit our discussion of the facts to those relevant to the
issue before us. For a more complete recitation of facts, see State
v. Martinez-Castellanos, 2017 UT App 13, ¶¶ 2–24, 389 P.3d 432,
rev’d, 2018 UT 46, or State v. Martinez-Castellanos, 2018 UT 46,
¶¶ 5–31, 428 P.3d 1038.
20130432-CA 3 2019 UT App 50State v. Martinez-Castellanos
squad” and was a certified “drug recognition expert” as well as a
drug-recognition-expert “instructor.”
¶9 Next, Officer detailed the traffic stop. He said he initially
stopped Martinez-Castellanos because the registration stickers
on his California license plates did not comply with California
law. And when Officer “first walked up to the car,” he
noticed Martinez-Castellanos making “jittery movements.”
Martinez-Castellanos handed Officer the car’s registration and
“an expired Colorado driver’s license,” assuring Officer that “he
had a valid Utah license” but “just didn’t have it with him.” The
registration revealed that, although the car “was properly
registered . . . , the proper stickers weren’t put on it yet.” Officer
and Martinez-Castellanos then “had a conversation about” the
improper registration stickers.
¶10 During the conversation, Officer noticed again that
Martinez-Castellanos “was a little bit jittery.” That is, he had
“rapid speech and rapid . . . jittery movements.” This made
Officer “a little bit concerned that he might have been on some
type of stimulant.” Officer testified, “[B]ased on my training and
experience as a police officer and dealing with thousands of cars
that I’ve stopped in my career, this made me . . . [think] he was
under the influence of something.” According to Officer,
Martinez-Castellanos’s behavior was “more . . . than what you’d
expect based upon nervousness of a driver.” He explained that,
in his experience, “there’s a difference” between “nervousness”
and a person who is “jittery” and “talking really fast.”
¶11 On cross-examination, Officer admitted he had never
“seen [Martinez-Castellanos] before” and did not “know
anything at all about him” other than what he observed during
the stop. But he said, “[B]ased on all the people I arrest for
stimulants and deal with,” Martinez-Castellanos’s “jittery
movements” and “rapid speech” “[made me think] he could
have been under [the influence of] stimulants.”
¶12 After informing Martinez-Castellanos that his registration
stickers were improper, Officer returned to the patrol vehicle
20130432-CA 4 2019 UT App 50State v. Martinez-Castellanos
and “ran checks,” which confirmed that Martinez-Castellanos
had a valid Utah driver license. But the report also revealed that
Martinez-Castellanos “had a criminal history,” including “drug
offenses.” Specifically, he had miscellaneous theft charges dating
back to 1997, a charge from 2001 that led to a felony conviction
for controlled substance possession, a felony charge for
controlled substance possession from 2006, and a 2007 probation
revocation for possession of a controlled substance. Officer said
that Martinez-Castellanos’s criminal history “heightened [his]
suspicions that [Martinez-Castellanos] might be [under] the
influence of something.”
¶13 Officer then returned to Martinez-Castellanos’s car
and, based on his suspicion of impairment, told Martinez-
Castellanos he was going to perform “field sobriety tests”
because “he was bouncing around a little bit.” On
cross-examination, Trial Counsel asked Officer to clarify
“the basis for doing the field sobriety tests.” Officer said the
main “reason for doing it” was the “jittery movements” and
“rapid speech,” which led him to believe that Martinez-
Castellanos was under the influence of “stimulants.” Further,
although Martinez-Castellanos’s criminal history “wasn’t the
reason [he] did it,” he said the prior drug-related activity “added
to [his] suspicions.”
¶14 Upon re-approaching the car, Officer asked
Martinez-Castellanos to exit the vehicle and then performed
various sobriety and drug-recognition tests. Based on those tests,
Officer concluded that Martinez-Castellanos was under the
influence. Officer arrested Martinez-Castellanos and proceeded
to search the car, discovering the drugs and drug paraphernalia.
Later, at the jail, Martinez-Castellanos’s blood tested positive for
marijuana at a level consistent with recent use.
¶15 Officer’s “dash-cam” filmed the traffic stop, but
Trial Counsel did not review the video before the hearing.
Following Officer’s testimony, Trial Counsel requested
the video, and the district court instructed counsel for the
State to arrange for him to obtain it. The court then said, “Many
20130432-CA 5 2019 UT App 50State v. Martinez-Castellanos
times in these types of motions, we have an evidentiary hearing,
and then the parties, based on the evidence, sometimes like to
submit a brief.” And the judge asked counsel for both parties,
“[I]f you wanted me to simply make rulings based on what I’ve
heard, or if you intended to brief this before I make a decision.”
Trial Counsel said he “would like to . . . submit a brief on the
matter” after reviewing a transcript of the suppression hearing
as well as the dash-cam video.
¶16 The court set a briefing schedule, allowing thirty days for
Trial Counsel to submit a brief in support of the motion to
suppress and fifteen days for the State to respond. Trial Counsel
did not file a brief. A week after the deadline, the court granted
Trial Counsel’s request for additional time, but Trial Counsel
again failed to meet the deadline. The State then filed a
memorandum in opposition to the motion to suppress, and Trial
Counsel did not respond to it. The dash-cam video was attached
to the State’s memorandum.
¶17 After receiving the State’s opposition, the court issued an
order denying the motion. It said, “[H]aving reviewed testimony
given [at the hearing] and [the State’s] memorandum,
the Motion to Suppress is hereby denied.” Trial Counsel filed a
motion to set aside the decision to deny the motion to
suppress. He attached a transcript of the evidentiary hearing,
and again requested time to file a brief in support of the
motion to suppress. The court allowed Trial Counsel an
additional week. Trial Counsel again failed to meet the deadline,
and the court reinstated its order denying the motion to
suppress.
¶18 Two days before trial, Trial Counsel filed a motion to
dismiss in which he renewed the motion to suppress. He
asserted that the dash-cam video demonstrated there was “no
basis” for the stop, but he did not file a supporting
memorandum. The court denied the motion. Following a
one-day trial, a jury convicted Martinez-Castellanos of two
felonies for possession or use of a controlled substance and two
related misdemeanors.
20130432-CA 6 2019 UT App 50State v. Martinez-Castellanos
¶19 After trial, the district court appointed conflict counsel to
represent Martinez-Castellanos in post-trial proceedings
regarding Trial Counsel’s failure to file a memorandum in
support of the motion to suppress following the evidentiary
hearing and whether those actions constituted ineffective
assistance of counsel. The court specifically identified Trial
Counsel’s failure to adequately litigate the issue of whether
“there was reasonable suspicion” when Officer had
Martinez-Castellanos “step out of the car and . . . perform . . .
field sobriety tests.”
¶20 About one month later, conflict counsel submitted a
memorandum captioned “Amicus Brief.” The brief argued that
Trial Counsel’s failure to file a supporting memorandum did not
prejudice Martinez-Castellanos. Specifically, it said that the
court’s denial of the motion to suppress, “with or without legal
memorandum, is a finding and conclusion of law that the State
met its burden in establishing that the evidence was obtained
legally.”
¶21 The court agreed with the position articulated by
conflict counsel, withdrew its notice, and re-instated
Trial Counsel to represent Martinez-Castellanos in the
remaining proceedings. The court noted conflict counsel’s
opinion that “it was the Court’s duty to make its decision based
on the evidence presented” and said, “I can understand his
position on that.”
¶22 Martinez-Castellanos was sentenced to zero to five years,
but the court suspended that sentence and placed him on
probation. Trial Counsel then filed a motion for a judgment
notwithstanding the verdict. In the motion, he requested that the
court suppress the evidence from the traffic stop. But the motion
once again did not include a supporting memorandum and Trial
Counsel did not flesh out the constitutional issues raised in the
motion. Instead, Trial Counsel attached the transcripts of the
preliminary hearing, the suppression hearing, and Officer’s trial
testimony. He specifically noted “a substantial change of
[Officer’s] testimony regarding the reason for the stop and the
20130432-CA 7 2019 UT App 50State v. Martinez-Castellanos
time and delay in the stop.” And he asserted that the order
denying the motion to suppress “should be set aside and
reconsidered because of the new testimony that was offered at
trial.” Without explanation, the court denied the motion.
¶23 Martinez-Castellanos appealed his convictions to this
court. State v. Martinez-Castellanos, 2017 UT App 13, 389 P.3d 432,
rev’d, 2018 UT 46, 428 P.3d 1038. He raised three issues. First, he
argued “he was denied the right to participate in the
jury-selection process.” Id. ¶ 25 (quotation simplified). Second,
he argued that Trial Counsel provided ineffective assistance of
counsel by failing to file a proper motion to suppress evidence
seized during the traffic stop. Id. ¶ 26. Third, he argued “that the
district court erred in failing to ensure that he had the effective
assistance of counsel at all stages of the proceedings.” Id.
(quotation simplified).
¶24 A majority panel of this court determined that each of
Martinez-Castellanos’s claims constituted error. Id. ¶ 77. But we
concluded that none of the errors independently warranted
reversal because Martinez-Castellanos had not shown sufficient
prejudice. Id. ¶ 78. We noted that a showing of prejudice for two
of his claims depended on whether the motion to suppress was
meritorious. Id. ¶¶ 73–74. That is, Martinez-Castellanos was
required to demonstrate a reasonable probability that “a proper
motion would have resulted in suppression of the evidence” and
“the verdict would have been different absent the excludable
evidence.” Id. ¶ 74 (quotations simplified).
¶25 On that issue, we noted that both parties’ arguments
“appear to have some merit, and we would ordinarily go on to
resolve the issue based on the facts in the record.” Id. ¶ 76. But
we were “reluctant to resolve the issue . . . particularly because it
was so poorly developed in the trial court.” Id. Based on this
concern, we did not determine whether the motion was
meritorious. Id. ¶¶ 74–76. We nonetheless reversed and
remanded for a new trial based on our conclusion that the
cumulative effect of the errors undermined our confidence that
Martinez-Castellanos received a fair trial. Id. ¶ 81.
20130432-CA 8 2019 UT App 50State v. Martinez-Castellanos
¶26 On certiorari, the Utah Supreme Court reversed our
decision, determining that we erred in concluding cumulative
error warranted reversal. State v. Martinez-Castellanos, 2018 UT
46, ¶ 55, 428 P.3d 1038. The court explained that “[w]ithout a
determination that the motion to suppress is meritorious, at least
two of the three errors at issue cannot conceivably cause harm to
[Martinez-Castellanos], so they cannot cumulate into reversible
error.” Id. ¶ 4. But the court also said that “if his motion to
suppress would have been successful had it been argued before
the [district] court, then . . . it would have created a certainty of a
different result.” Id. ¶ 53. Thus, it remanded the case for us to
determine the narrow issue of whether Martinez-Castellanos’s
motion to suppress was meritorious. Id. ¶ 54.
ANALYSIS
I. Motion to Suppress
¶27 On remand, we must determine whether
Martinez-Castellanos’s motion to suppress the traffic stop and
blood draw evidence was meritorious. See State v.
Martinez-Castellanos, 2018 UT 46, ¶ 50, 428 P.3d 1038. To prevail
on this issue, Martinez-Castellanos must demonstrate “a
reasonable probability” that the motion would have been
granted but for Trial Counsel’s failure to adequately litigate his
Fourth Amendment claim. See State v. Mitchell, 2013 UT App 289,
¶ 12, 318 P.3d 238. To that end, he argues that Officer
unreasonably extended the scope of the traffic stop to
“investigate [him] for substance abuse and to search the car.”
Specifically, he asserts that, under “the totality of the
circumstances,” there “is insufficient [evidence] to justify an
extended detention.”
¶28 We are not persuaded that this claim is meritorious. Based
on the record and arguments before us, we conclude that
Officer’s actions were justified by a “reasonable suspicion” that
Martinez-Castellanos was under the influence of a controlled
substance. See State v. Baker, 2010 UT 18, ¶ 13, 229 P.3d 650.
20130432-CA 9 2019 UT App 50State v. Martinez-Castellanos
¶29 The Fourth Amendment to the United States Constitution
protects citizens from “unreasonable searches and seizures.” U.S.
Const. amend. IV. Under that amendment, “stopping an
automobile and detaining its occupants constitute[s] a seizure.”
State v. Hansen, 2002 UT 125, ¶ 28, 63 P.3d 650(quotation simplified). To determine whether a traffic stop was
reasonable, “[w]e apply a two-step test.” Baker, 2010 UT 18, ¶ 12.
First, we ask “whether the traffic stop was justified at its
inception.” State v. Gurule, 2013 UT 58, ¶ 22, 321 P.3d 1039(quotation simplified). If the stop was justified at its inception,
“we proceed to . . . determine whether the detention following
the stop was reasonably related in scope to the circumstances
that justified the interference in the first place.” Id.(quotation simplified).
¶30 Because Martinez-Castellanos concedes the stop was
justified at its inception, we limit our analysis to the second step.
“During the pendency of a traffic stop, if officers gain reasonable
suspicion of additional criminal activity, they may turn their
attention from the original purpose of the traffic stop to
expediently investigate their new suspicion.” Id. ¶ 31
(quotation simplified). To support reasonable suspicion, “the
likelihood of criminal activity need not rise to the level required
for probable cause, and it falls considerably short of satisfying a
preponderance of the evidence standard.” State v. Markland, 2005
UT 26, ¶ 10, 112 P.3d 507 (quotation simplified). Thus, although
officers may not extend the scope of a traffic stop based
on “merely an inchoate and unparticularized suspicion or
hunch,” “a determination that reasonable suspicion exists need
not rule out the possibility of innocent conduct.” Id.(quotations simplified).
¶31 Essentially, “reasonable suspicion requires an objectively
reasonable belief that an individual is engaged in . . . criminal
activity,” Gurule, 2013 UT 58, ¶ 31 (quotation simplified), “based
on specific, articulable facts drawn from the totality of
the circumstances facing the officer at the time of the stop,” State
v. Navarro, 2017 UT App 102, ¶ 17, 400 P.3d 1120(quotation simplified). Courts must “judge the officer’s conduct
20130432-CA 10 2019 UT App 50State v. Martinez-Castellanos
in light of common sense and ordinary human experience and
accord deference to an officer’s ability to distinguish between
innocent and suspicious actions.” Markland, 2005 UT 26, ¶ 11
(quotation simplified). The ultimate question is whether “the
facts available to the officer . . . [would] warrant a man of
reasonable caution in the belief that the intrusion the officer
plans is justified in order to investigate the criminal activity.”
State v. Anderson, 2013 UT App 272, ¶ 12, 316 P.3d 949(quotation simplified).
¶32 The State argues that Martinez-Castellanos’s arguments
on appeal would not “have persuaded the [district] court to
grant the motion to suppress.” Specifically, it asserts that those
arguments fail to show that Officer lacked “reasonable suspicion
to investigate whether [Martinez-Castellanos] was under the
influence of a controlled substance.” We agree.
¶33 At the evidentiary hearing, Officer said that he began to
suspect Martinez-Castellanos was under the influence when he
approached the car and observed “jittery movements.” His
suspicion grew as the stop developed because he observed more
“jittery movements” as well as “jittery speech” and he noticed
that Martinez-Castellanos was “talking really fast.” A review of
the relevant case law reveals that Martinez-Castellanos’s
behavior during the traffic stop, as it is described in the record
before us, supports a finding of reasonable suspicion. See State v.
Stewart, 2014 UT App 289, ¶ 16, 340 P.3d 802 (determining that
an officer had “adequate suspicion that [the defendant] was
operating her vehicle under the influence” when he “observed
that [the defendant] was jittery, she was dancing around in the
car, her pupils were constricted, and her speech was slurred”
(quotation simplified)); see also Wilder v. Turner, 490 F.3d 810, 815
(10th Cir. 2007) (determining the same when the officer observed
“a moderate odor of alcohol, pinkish and watery eyes, a flushed
face, unusually slow and deliberate speech, and slow hand
movements”); State v. Hogue, 2007 UT App 86, ¶ 8, 157 P.3d 826(determining the same when an officer observed the defendant’s
“dilated pupils, nervous demeanor, and jerky body
movements”);
20130432-CA 11 2019 UT App 50State v. Martinez-Castellanos
¶34 Granted, general nervousness and fast speech, without
more, may not be enough to support reasonable suspicion. See
Salt Lake City v. Ray, 2000 UT App 55, ¶¶ 5, 19, 998 P.2d 274(determining that there was no reasonable articulable suspicion
when the defendant “appeared nervous, although not agitated,
and she talked fast and repeatedly shifted her weight from one
foot to the other”); see also State v. Humphrey, 937 P.2d 137, 143
(Utah Ct. App. 1997) (noting that “nervousness,” alone, “cannot
support reasonable suspicion”). But Officer explained that
Martinez-Castellanos’s behavior was “more than what you’d
expect based upon nervousness of a driver.” That is, Officer’s
“training and experience as a police officer and dealing with
thousands of cars that [he had] stopped in [his] career” led him
to believe that Martinez-Castellanos “was under the influence of
something.” In his words, “based on all the people I arrest for
stimulants and deal[] with,” Martinez-Castellanos’s behavior
“made me think” he “could have been under [the influence of]
stimulants.”
¶35 Our precedent is clear that “[c]ourts must . . . accord
deference to an officer’s ability to distinguish between innocent
and suspicious actions.” Markland, 2005 UT 26, ¶ 11
(quotation simplified). At the time of the traffic stop, Officer had
twenty years of experience as a police officer and had been on
the Utah Highway Patrol drug and interdiction squad for the
previous nine years. He was also certified as a drug recognition
expert as well as a drug-recognition-expert instructor. Although
“experience and training alone might lead to only a hunch,”
Anderson, 2013 UT App 272, ¶ 27, “the Fourth Amendment is
satisfied” if “the underlying facts, and reasonable inferences
drawn from those facts, justify the conclusion that reasonable
suspicion existed,” Markland, 2005 UT 26, ¶ 19. Here, the
evidence leads us to conclude that Officer’s experience and
training allowed him to determine that Martinez-Castellanos’s
“rapid speech” and “jittery movements” constituted
“suspicious,” rather than “innocent,” behavior. See id. ¶ 11.
¶36 Further, Martinez-Castellanos’s behavior was not the only
relevant factor. Instead, Officer’s suspicion “heightened” when
20130432-CA 12 2019 UT App 50State v. Martinez-Castellanos
he learned of Martinez-Castellanos’s criminal history. Officer
specifically noted the history of illegal drug activity, which
included multiple drug-related charges as well as a felony
conviction and a probation revocation for possession of a
controlled substance.
¶37 This court has previously determined that “information
regarding an individual’s past . . . criminal activity can be a
factor in determining reasonable suspicion.” Humphrey, 937 P.2d
at 143. Indeed, “in conjunction with other factors, criminal
history contributes powerfully to the reasonable suspicion
calculus.” United States v. Santos, 403 F.3d 1120, 1132
(10th Cir. 2005); see also State v. Dennis, 2007 UT App 266, ¶¶ 10,
12, 167 P.3d 528 (upholding a finding of reasonable suspicion
based on “the early morning hour, the officers’ knowledge of the
truck’s occupants and their criminal histories, the truck’s earlier
presence at a location known for drug activity, and the
occupants’ nervousness”). Accordingly, we conclude that
Officer’s observations during the traffic stop, combined with
Martinez-Castellanos’s criminal history, “were sufficient to
warrant a prudent person’s belief” that Martinez-Castellanos
was under the influence. See Hogue, 2007 UT App 86, ¶ 11
(quotation simplified).
¶38 Martinez-Castellanos identifies several arguments
that should have been fleshed out in a memorandum supporting
the motion to suppress. First, he asserts that the evidence
“fails to show support that [his] speech or manners were
rapid or unusual.” And he argues that “the district court
should be given the opportunity in remand proceedings
to assess the evidence.” To support his argument,
Martinez-Castellanos claims that Officer’s testimony about
his observations of Martinez-Castellanos during the
stop changed at trial. According to Martinez-Castellanos, at
trial, Officer “stated only that Martinez-Castellanos had rapid
speech and movements.” But Martinez-Castellanos’s assertion
does not accurately represent Officer’s testimony. At trial,
Officer said he observed “rapid speech and rapid movements”
that, “based on [his] training and experience,” made him
20130432-CA 13 2019 UT App 50State v. Martinez-Castellanos
“believe that [Martinez-Castellanos] might have been under the
influence of a controlled substance.” After reviewing the
transcript, we disagree with Martinez-Castellanos’s claim that
Officer “changed his testimony” “over the course of the
proceedings.”
¶39 Martinez-Castellanos also makes much of the fact
that Officer “admitted he was not familiar with
Martinez-Castellanos” and conceded that his “manner
could have been his ‘normal way.’” He argues that Officer
“qualified his observations about ‘rapid mannerisms’” by saying
he “did not know if rapid manners were [Martinez-
Castellanos’s] ‘personal traits’ or ‘personal speech.’” But again,
Martinez-Castellanos’s description does not put Officer’s
testimony in context. Officer made these statements while
explaining his decision to perform the sobriety tests. He said that
“fast speech and fast movements” are “commonly what [he sees]
when people are under the influence or have been using a
controlled substance.” And he clarified that the sobriety tests
allowed him to quickly confirm or dispel his suspicions and
determine “whether that’s his normal way” or “it’s a controlled
substance on board.”
¶40 Further, “it is settled law that an officer is not obligated to
rule out innocent conduct prior to initiating an investigatory
detention.” Markland, 2005 UT 26, ¶ 17. “Because the balance
between the public interest and the individual’s right to personal
security tilts in favor of a standard less than probable cause in
[these] cases, the Fourth Amendment is satisfied if the officer’s
action is supported by reasonable suspicion to believe that
criminal activity may be afoot.” United States v. Arvizu, 534 U.S.
266, 273 (2002) (quotation simplified). Thus, even if we were to
accept as true the assertion that Martinez-Castellanos’s behavior
was “at least as consistent with lawful behavior as with the
commission of a crime,” we nonetheless conclude that “the
underlying facts, and reasonable inferences drawn from those
facts, justify the conclusion that reasonable suspicion existed” to
support Officer’s decision to perform the sobriety tests.
Markland, 2005 UT 26, ¶¶ 18–19.
20130432-CA 14 2019 UT App 50State v. Martinez-Castellanos
¶41 Martinez-Castellanos also argues that the dash-cam video
is “objective evidence” that “fails to support that [his] speech or
manners were rapid or unusual.” Specifically, he claims the
video shows that Officer “did most of the talking and had a very
brief interaction with Martinez-Castellanos before he took
actions to extend the stop,” and that Martinez-Castellanos was
“polite and cooperative.”
¶42 We give little weight to this argument because the
dash-cam video was before the district court when it denied
the motion to suppress. The video was provided to the court as
part of the State’s opposition, and in denying the motion,
the court said it had “reviewed testimony given and
memorandum provided.” (Emphasis added.) Accordingly, we
consider this argument only to the extent that a supporting
memorandum’s written interpretation of the dash-cam video
would have assisted in persuading the district court to grant the
motion.
¶43 As Martinez-Castellanos notes, the dash-cam video is
“objective evidence.” It speaks for itself. And based on the
parties’ arguments, we conclude that a supporting
memorandum detailing the video would have been of little
assistance to the court. The State disagrees with
Martinez-Castellanos’s description of the video, arguing that he
has failed to show “the dash-cam video refutes [Officer’s]
observations.” According to the State, ”[i]t is difficult, if not
impossible, to accurately evaluate [Martinez-Castellanos’s]
manner and speech” in the dash-cam video because
Martinez-Castellanos’s movements are “mostly indiscernible,”
most of what he says “is largely unintelligible,” and “what is
intelligible arguably supports [Officer’s] characterization.”
¶44 On appeal, however, it is not our role to make
such factual determinations. Indeed, Martinez-Castellanos
acknowledges in his reply brief that this court should not
“make its own interpretations of the evidence.” He
argues instead that the district court “is in the best position to
assess whether [Officer’s] testimony . . . is unsupported by
20130432-CA 15 2019 UT App 50State v. Martinez-Castellanos
objective information.” But as previously discussed, the district
court received the video before denying the motion to suppress
and seems to have considered it along with the State’s
memorandum. Thus, even assuming we agree with
Martinez-Castellanos that a supporting memorandum that
included a favorable interpretation of the dash-cam video
“would have been relevant to the district court under the totality
of the circumstances,” we conclude that he has failed to show a
reasonable probability that presenting such an interpretation
would have persuaded the district court to grant the motion.
¶45 Next, Martinez-Castellanos argues that his “criminal
history is insufficient to support reasonable suspicion even when
it is considered with other factors because the history was three
years old.” To support this argument, he cites State v. Brooks, 849
P.2d 640 (Utah Ct. App. 1993). Brooks was a probable cause case
in which this court determined that the defendant’s “criminal
record does nothing to establish that he is currently dealing in
controlled substances, particularly since the most recent arrest
was . . . at least two years prior to the events in the case at bar.”
Id. at 644; see also State v. Keener, 2008 UT App 288, ¶ 12 n.6, 191
P.3d 835 (determining that “arrests from five to fourteen years
prior” were “too old” to support probable cause, but
“drug-related arrests—the most recent of which was only seven
months prior” were properly considered (emphasis omitted)).
But unlike Brooks, this is a reasonable suspicion case, and
Martinez-Castellanos provides no authority for his assertion that
“the 3-year-old history was [too] stale” to support reasonable
suspicion.
¶46 Granted, courts should analyze a person’s criminal
history as a whole, considering factors such as the timing,
frequency, and seriousness of the pertinent crimes. See
Humphrey, 937 P.2d at 141 (“Reasonable suspicion is based on
objective facts, which are given due weight in light of the
reliability of the information and the reasonable inferences
drawn from those facts.” (quotation simplified)). But
here, Martinez-Castellanos’s criminal history included drug-
related behavior spread over the previous nine years. The
20130432-CA 16 2019 UT App 50State v. Martinez-Castellanos
report revealed various charges, a felony conviction, and a
probation revocation for possession of a controlled substance.
And although the most recent offense—the probation
revocation—was three years before the traffic stop, we conclude
that, “when viewed in conjunction with other factors,”
Martinez-Castellanos’s criminal history supported Officer’s
decision to perform the sobriety tests. See United States v. Moore,
795 F.3d 1224, 1230 (10th Cir. 2015) (explaining that, “when
viewed in conjunction with other factors that suggest criminal
activity may be occurring, criminal history can be a powerful
contributor to the reasonable suspicion analysis”).
¶47 In sum, based on the record and arguments before us, we
conclude that Officer’s actions were justified by a reasonable
suspicion that Martinez-Castellanos was under the influence of a
controlled substance. Thus, Martinez-Castellanos has failed to
demonstrate a reasonable probability that the motion to
suppress would have been granted had Trial Counsel made
“timely and proper arguments” supporting the motion.
II. Clerical Error
¶48 Although we affirm Martinez-Castellanos’s convictions,
the State nonetheless asks us to remand the case to correct
a “clerical error” in Martinez-Castellanos’s sentence.
Specifically, it asserts that the district court “entered [the]
conviction on Count II (hydrocodone possession) as a
third degree felony” when it “should have been entered only as
a Class B misdemeanor.” According to the State, this
error occurred because an amendment to the original
information made at the preliminary hearing was later omitted
from the amended information. Martinez-Castellanos agrees that
his conviction for hydrocodone possession was incorrectly
entered and he asks us to “remand the case to correct his
sentence.”
¶49 Under the Utah Rules of Criminal Procedure, “[c]lerical
mistakes in judgments, orders or other parts of the record
and errors in the record arising from oversight or omission
20130432-CA 17 2019 UT App 50State v. Martinez-Castellanos
may be corrected by the court at any time after such notice,
if any, as the court may order.” Utah R. Crim. P. 30(b). Further,
in Martinez-Castellanos’s case, possession of hydrocodone
is defined by statute as “a class A misdemeanor.” See Utah
Code Ann. 58-37-8(2)(b)(ii) (LexisNexis Supp. 2018) (establishing
that a person convicted of possessing a “schedule II”
controlled substance “is guilty of a class A misdemeanor on a
first or second conviction, and on a third or subsequent
conviction is guilty of a third degree felony”); see also id.§ 58-37-4(2)(b)(i)(A)(X) (designating hydrocodone as a “schedule
II” controlled substance). But “the district court sentenced him as
if the offense were a third-degree felony.” State v. Williams, 2018
UT App 176, ¶ 11. “This was an illegal sentence.” Id.¶50 We therefore vacate Martinez-Castellanos’s sentence for
the possession of hydrocodone conviction and remand to the
district court for resentencing on that count. See id.CONCLUSION
¶51 Martinez-Castellanos has failed to demonstrate that his
motion to suppress was meritorious. Accordingly, we affirm his
convictions because the errors in the district court did not result
in sufficient prejudice to warrant reversal. But we vacate
Martinez-Castellanos’s sentence for the possession of
hydrocodone conviction and remand to the district court for
resentencing on that count.
ORME, Judge (concurring specially):
¶52 I concur in the court’s opinion which, of necessity, is
confined to the narrow issue on remand, specifically “whether
the motion to suppress was meritorious.” Supra ¶ 4. But I still
hold the view that “a serious miscarriage of justice occurred
here,” State v. Martinez-Castellanos, 2017 UT App 13, ¶ 82, 389
P.3d 432 (Orme, J., concurring in part and concurring in the
result), rev’d, 2018 UT 46, 428 P.3d 1038, separate and apart from
20130432-CA 18 2019 UT App 50State v. Martinez-Castellanos
the ultimate merits of the suppression motion that competent
counsel would have more thoroughly developed.
¶53 The famous Highway Patrol veteran who served as the
foreperson on the jury “had no business being on the jury
that convicted Martinez-Castellanos.” Id. ¶ 90. See id. ¶¶ 85–89.
That he did so serve was a result of constitutionally ineffective
representation on the part of defense counsel, id. ¶¶ 89–90,
and plain error on the part of the district court, id. ¶ 89.
“The prejudice in this case is so palpable . . . that
Martinez­Castellanos’s entitlement to a new trial is in no sense a
close question.” Id. ¶ 90. I find it regrettable that this significant
issue got rolled into a cumulative error analysis when this
appeal first came to us, permitting the resolution embraced by
the Utah Supreme Court, namely, that there was no reversible
error if the other two errors—the ones that turned on the
ultimate merit of the suppression motion—fell by the wayside,
leaving nothing to “cumulate” with the obvious jury
impropriety “into reversible error.” Supra ¶ 4.
20130432-CA 19 2019 UT App 50