State v. Fretheim

2015 UT App 197THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DONALD WILLIAM FRETHEIM,
Defendant and Appellant.
Memorandum Decision
No. 20131068-CA
Filed August 6, 2015
Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 121500639
Matthew D. Carling, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES JOHN A. PEARCE and KATE A. TOOMEY
concurred.
ORME, Judge:
¶1 Defendant Donald William Fretheim appeals his
convictions for two counts of possession of a controlled
substance, second degree felonies, and one count of possession
of drug paraphernalia, a class A misdemeanor. We affirm.
¶2 In 2013, two narcotics officers knocked on Defendant’s
apartment door.1 The officers explained to Defendant that they
1. ‚On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.‛ State v. Nichols, 2003 UT
(continued…)
State v. Fretheim
had been investigating a drug problem across the street and that
their investigation had led them to Defendant’s apartment. The
officers asked if they could come inside; Defendant consented
and let them in. One of the officers instantly noticed a
suspicious-looking crushed soda can on the floor. It had holes
punched in the top and ‚burnt residue‛ inside. When asked,
Defendant admitted that he used the can to smoke marijuana
and that ‚there may be‛ other illegal items around the
apartment. The officers asked for permission to search, which
Defendant granted. During the search, the officers found
marijuana, a marijuana pipe, methamphetamine, and ‚a small
light bulb that had been used to ingest methamphetamine.‛ The
officers then advised Defendant of his Miranda rights. Defendant
agreed to speak with the officers and admitted that all of the
contraband belonged to him.
¶3 Before trial, Defendant moved to suppress the drug
evidence on the grounds that the search of his apartment was
unreasonable because ‚it was not supported by probable cause
and exigent circumstances‛ and because it was ‚impossible to
know‛ if his consent was voluntary given the brevity of the
police report. The trial court denied Defendant’s motion.
Following a bench trial, the court convicted Defendant as
charged. Defendant appeals.
¶4 Defendant first argues that the trial court erroneously
denied his motion to suppress because (1) the officers lacked
reasonable suspicion to ask for permission to enter or to search
his apartment and (2) his consent was involuntary as ‚he
[believed he] could not refuse entry or search‛ as a probationer.
‚In an appeal from a trial court’s denial of a motion to suppress
(…continued)
App 287, ¶ 1 n.1, 76 P.3d 1173 (citation and internal quotation
marks omitted).
20131068-CA 2 2015 UT App 197State v. Fretheim
evidence, we review the trial court’s factual findings for clear
error*,+ and we review its conclusions of law for correctness.‛
State v. Perkins, 2009 UT App 390, ¶ 8, 222 P.3d 1198 (alteration in
original) (citation and internal quotation marks omitted). While
it is far from clear that Defendant’s suppression claim is
preserved for appeal, we readily conclude that Defendant’s
Fourth Amendment rights were not violated.
¶5 The Fourth Amendment to the United States Constitution
protects citizens from unreasonable searches and seizures. U.S.
Const. amend. IV. ‚Warrantless searches are per se
unconstitutional under the Fourth Amendment unless
conducted pursuant to a recognized exception to the warrant
requirement. One such exception includes searches conducted
pursuant to consent.‛ State v. Bisner, 2001 UT 99, ¶ 43, 37 P.3d
1073 (internal citations omitted). ‚A consent is valid only if (1)
the consent was given voluntarily, and (2) the consent was not
obtained by police exploitation of *a+ prior illegality.‛ State v.
Tripp, 2010 UT 9, ¶ 27, 227 P.3d 1251 (alteration in original)
(citation and internal quotation marks omitted).
¶6 Defendant’s contention that the officers lacked reasonable
suspicion to ask for permission to enter or search his apartment
is wide of the mark. The Fourth Amendment does not require
police officers to have reasonable suspicion to conduct a so-
called ‚knock-and-talk‛ investigation. ‚*A+ police officer not
armed with a warrant may approach a home and knock,
precisely because that is no more than any private citizen might
do.‛ Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013) (citation and
internal quotation marks omitted). See also Kentucky v. King, 131
S. Ct. 1849, 1862 (2011) (‚*W+hether the person who knocks on
the door and requests the opportunity to speak is a police officer
or a private citizen, the occupant has no obligation to open the
door or to speak.‛). ‚So long as a reasonable person would feel
free to disregard the police and go about his business, the
encounter is consensual and no reasonable suspicion is
20131068-CA 3 2015 UT App 197State v. Fretheim
required.‛ Florida v. Bostick, 501 U.S. 429, 434 (1991) (citation and
internal quotation marks omitted). This is precisely the situation
here, and Defendant was free to ignore the knock at his door and
to decline the officers’ requests for conversation and, eventually,
entry.
¶7 Defendant’s assertion of involuntariness is equally
without merit. Defendant conceded at trial that he affirmatively
expressed consent to the officers’ entry and search of his
apartment. Thus, his argument is that his consent was
involuntary solely because ‚he *believed he+ could not refuse
entry or search‛ as a probationer. Whether consent is voluntarily
given is determined by the totality of the circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Bisner, 2001
UT 99, ¶¶ 45–46. ‚Consent is not voluntary if it is obtained as
‘the product of duress or coercion, express or implied.’‛ Bisner,
2001 UT 99, ¶ 47 (quoting Schneckloth, 412 U.S. at 227) (listing
factors indicating a lack of duress or coercion).
¶8 Defendant cites no authority to support the proposition
that his subjective belief that he could not refuse consent single-
handedly rendered his consent involuntary. Indeed, the United
States Supreme Court has held that ‚*w+hile knowledge of the
right to refuse consent is one factor to be taken into account,‛
Schneckloth, 412 U.S. at 227, ‚knowledge of a right to refuse
[consent] is not a prerequisite of a voluntary consent,‛ id. at 234.
See also State v. Hansen, 2002 UT 125, ¶ 54, 63 P.3d 650(employing the holding from Schneckloth). Defendant has not
argued that his consent was the product of duress or coercion,
and there is no evidence that the officers exerted any pressure or
force on Defendant in securing his consent to their entry into and
search of his apartment. See Bisner, 2001 UT 99, ¶ 47. There is
also no evidence that the officers claimed authority to enter or
search his apartment based on his probation status or on any
other basis. See id. Defendant’s mistaken belief that he could not
refuse consent, standing alone, is not enough to render his
20131068-CA 4 2015 UT App 197State v. Fretheim
consent involuntary.2 We therefore conclude that the trial court
did not err when it denied Defendant’s motion to suppress.
¶9 Defendant next argues that his trial counsel was
constitutionally ineffective because he did not move to suppress
Defendant’s pre-Miranda statements. ‚An ineffective assistance
of counsel claim raised for the first time on appeal presents a
question of law.‛ State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. To
establish his claim of ineffective assistance of counsel, Defendant
‚must show that counsel’s performance was deficient‛ and that
‚the deficient performance prejudiced the defense.‛ See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶10 After Defendant was advised of his Miranda rights, he
admitted that all of the drugs and paraphernalia found in the
apartment belonged to him, and he has never contested the
admissibility of his post-Miranda statements. Because
Defendant’s post-Miranda statements are more expansive and
2. Defendant, as a probationer, was required to permit his
probation officers to enter and search, but that condition of his
probation did not authorize others in law enforcement to enter
without Defendant’s consent or without a properly issued search
warrant. See State v. Burningham, 2000 UT App 229, ¶ 9, 10 P.3d
355 (‚*W+hile a probation officer’s search need only be
supported by reasonable suspicion, police officers are required
to abide by the usual warrant and probable cause requirements
of the Fourth Amendment.‛). Defendant’s apparent confusion on
this point is inconsequential, as the inquiry is an objective, not a
subjective, one. See Florida v. Jimeno, 500 U.S. 248, 251 (1991)
(‚The standard for measuring the scope of a suspect’s consent
under the Fourth Amendment is that of ‘objective’
reasonableness—what would the typical reasonable person have
understood by the exchange between the officer and the
suspect?‛).
20131068-CA 5 2015 UT App 197State v. Fretheim
more incriminating than the information contained in his pre-
Miranda statements, see supra ¶ 2, even if the pre-Miranda
statements could have been successfully suppressed, Defendant
cannot establish prejudice under Strickland. See 466 U.S. at 687.
¶11 Defendant also argues that trial counsel was ineffective
‚for failing to challenge the police report as being too vague or
inconsistent in relation to the testimony given at the suppression
hearing.‛ The State contends that Defendant’s claim fails because
the police report is not in the record. We agree with the State.
‚[W]here, on direct appeal, [a] defendant raises a claim that trial
counsel was ineffective . . . , [the] defendant bears the burden of
assuring the record is adequate‛ for review. State v. Litherland,
2000 UT 76, ¶ 16, 12 P.3d 92. Because the police report is not in
the record on appeal its contents remain unknown. ‚Where the
record appears inadequate in any fashion, ambiguities or
deficiencies resulting therefrom simply will be construed in
favor of a finding that counsel performed effectively.‛ Id. ¶ 17.
¶12 Affirmed.
20131068-CA 6 2015 UT App 197