Opinion
Case No. 20000854-CA.
FILED: December 6, 2001. (Not For Official Publication)
Third District, Tooele Department, The Honorable David S. Young.
Julie George, Salt Lake City, for Appellant.
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee.
Before Judges Jackson, Billings, and Davis.
MEMORANDUM DECISION
Brent Cobb challenges his convictions for possession of a controlled substance, a second degree felony under Utah Code Ann. § 58-37-8(2)(a)(i) (Supp. 1999), and possession of drug paraphernalia, a class B misdemeanor under Utah Code Ann. § 58-37a-5(1) (1998). We affirm.
Cobb first argues the trial court should have suppressed the evidence found in his car prior to his being placed under formal arrest. An "officer `may, as a contemporaneous incident of [an] arrest, search the passenger compartment of [the arrestee's] automobile.'" State v. Rochell, 850 P.2d 480, 484 (Utah Ct.App. 1993) (quoting New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864 (1981)). The officer may make this search "if: (1) the arrest is lawful; (2) the search is of the area within the arrestee's immediate control; and (3) the search is conducted contemporaneously to the arrest." State v. Giron, 943 P.2d 1114, 1118 (Utah Ct.App. 1997) (internal citations omitted).
An open container of alcohol inside Cobb's car lay in plain view of the officer standing outside the passenger side of Cobb's car and gave the officer probable cause to lawfully arrest Cobb without a warrant. See Utah Code Ann. § 41-6-44.20 (1998). Thus, Cobb's arrest without a warrant was lawful. Next, Cobb was detained near the car, and the car was within his immediate control. See Giron, 943 P.2d at 118-19. Further, although Cobb was not under arrest at the time the search was conducted, the contemporaneous search was proper because "the formal arrest followed quickly on the heels of the challenged search." Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564 (1980); accord In re K.K.C., 636 P.2d 1044, 1046 (Utah 1981); Spurgeon, 904 P.2d at 227.
Moreover, the officers permissibly searched "`the passenger compartment'" of Cobb's car and the "`contents of any containers found within the passenger compartment,'" incident to his arrest. Rochell, 850 P.2d at 484 (quoting Belton, 453 U.S. at 460, 101 S.Ct. at 2864); see also In re K.K.C., 636 P.2d at 1046 (affirming denial of motion to suppress evidence where police officer conducted a search of the cab of defendant's pickup incident to arrest when officer saw beer bottles between seats, and search of cab yielded bags of marijuana stashed under floor mat and in unlocked tape case). Because the search was proper, the trial court properly admitted the evidence, and no evidence submitted resulting from the search was "`fruit of the poisonous tree.'" Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417 (1963).
Finally, Cobb argues that his trial counsel was ineffective because he merely objected to the evidence during the trial, and failed to file a motion to suppress evidence prior to trial and failed to file a motion for a new trial after his conviction. To prove ineffective assistance of counsel, Cobb must show that his trial counsel's performance "fell below an objective standard of reasonable professional judgment," and "that counsel's deficient performance was prejudicial." State v. Litherland, 2000 UT 76,¶ 19, 12 P.3d 92. "`"The failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance."'" State v. Whittle, 1999 UT 96,¶ 34, 989 P.2d 52 (quoting Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983)). We have concluded that the search was proper under the search incident to arrest exception to warrantless searches, thus any motion or objection by Cobb's trial counsel would have been futile. See id. Accordingly, Cobb's trial counsel did not provide ineffective assistance.
We affirm.
WE CONCUR: Judith M. Billings, Judge, James Z. Davis, Judge.