UT: Defense “counsel was [not] ineffective for not filing a motion to suppress based on an unresolved proposition of law.”

“We cannot conclude that Edgar’s trial counsel was ineffective for not filing a motion to suppress based on an unresolved proposition of law.” State v. Edgar, 2017 UT App 53, 2017 Utah App. LEXIS 53 (March 23, 2017):

[*P16] We agree with the State that Edgar’s counsel did not perform deficiently under the then-current state of the law. Edgar “bears the burden of demonstrating why, on the basis of the law in effect at the time of trial, his or her trial counsel’s performance was deficient.” See State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993). Edgar is correct that “the impermissibility of prolonging a traffic detention without reasonable suspicion was well-established in several Utah cases before Edgar’s trial began.” What was not well-established, though—and still is not—was that evidence of drug impairment does not support a reasonable suspicion that drugs were in the vehicle. The law on this issue is not settled in Utah, and non-Utah case law supports the proposition that driving while impaired may support a reasonable suspicion that the driver is transporting contraband in the vehicle. Because Edgar cannot demonstrate that the law in effect at the time of trial supports his contrary proposition, his claim of ineffective assistance of counsel for failure to file a motion to suppress on that ground fails.

[*P17] Edgar has identified no controlling case law. Our supreme court has held that the presence of drug paraphernalia in a defendant’s car, “in addition to the driver’s apparent impairment, gave rise to reasonable suspicion that [the defendant] was using or possessed illegal drugs.” State v. Simons, 2013 UT 3, ¶ 23, 296 P.3d 721. But our supreme court has not resolved whether evidence of drug impairment alone supports reasonable suspicion justifying further investigation. Judicial decisions from other jurisdictions suggest that the appearance of drug impairment, without more, may support reasonable suspicion that a driver has drugs in the car. See, e.g., United States v. Donnelly, 475 F.3d 946, 952-53 (8th Cir. 2007) (holding that bloodshot, glazed-over eyes, apparent nervousness, and other signs of impairment, combined with the absence of alcohol-based impairment, “formed the basis for a reasonable suspicion that [the defendant] may have been transporting and using drugs”); United States v. Neeman, No. 99-3666, 2000 U.S. App. LEXIS 8451, 2000 WL 489581, at *1 (8th Cir. Apr. 26, 2000) (per curiam) (holding that red, watery eyes provided reasonable suspicion to search a defendant’s vehicle for drugs); State v. Kaleohano, 99 Haw. 370, 56 P.3d 138, 148 (Haw. 2002) (holding that when an officer failed to detect an odor of alcohol emanating from the driver’s person, it was reasonable for him to infer that the driver’s impairment could be drug-related and that the driver’s vehicle might contain drugs); People v. Redding, 2011 IL App (4th) 100263-U, 2011 WL 10481819, at *5 (Ill. App. Ct. 2011) (holding that evidence that the defendant’s eyes were glassy and bloodshot and did not dilate when the officer shined her light into them, combined with knowledge of a prior drug offense gave “rise to the reasonable inference defendant was operating a motor vehicle while under the influence of a drug”); Taylor v. Commonwealth, No. 2015-CA-000337-MR, 2016 Ky. App. Unpub. LEXIS 429, 2016 WL 3574606, at *2 (Ky. Ct. App. June 24, 2016) (holding that falling asleep behind the steering wheel of a car, combined with other signs of impairment, gave rise to “a reasonable suspicion that [the defendant] was driving under the influence of drugs or alcohol, and consequently, a reasonable suspicion that the vehicle harbored evidence of the crime of arrest”); State v. Cook, 83 So. 3d 1259, 1260 (La. Ct. App. 2012) (holding that the “observed impairment of the driver … while clearly involving alcohol, raises the considerable possibility for the involvement of other drugs used by the defendant,” and it was “therefore reasonable to believe that evidence of the crime of arrest … would be located in the vehicle”); State v. Malmquist, No. A14-2017, 2015 Minn. App. Unpub. LEXIS 1052, 2015 WL 7356579, at *3 (Minn. Ct. App. Nov. 23, 2015), (holding that because the defendant admitted to using drugs the previous day and exhibited signs of impairment that suggested recent drug use, the deputies had reasonable suspicion to suspect that his vehicle might contain drugs or drug paraphernalia).

[*P18] We cannot conclude that Edgar’s trial counsel was ineffective for not filing a motion to suppress based on an unresolved proposition of law; “counsel cannot be faulted for failing to advance a novel legal theory which has never been accepted by the pertinent courts.” See State v. Love, 2014 UT App 175, ¶ 7, 332 P.3d 383 (alteration, citation, and internal quotation marks omitted).