State v. Martinez-Castellanos

2019 UT App 50
T HE U TAH COURT OF A PPEALS
S TATE OF U TAH ,
Appellee,
v.
A BISAI M ARTINEZ -C ASTELLANOS,
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 K ATE A PPLEBY authored this Opinion, in which
JUDGE D AVID N. M ORTENSEN concurred. JUDGE GREGORY K. O RME
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

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20130432-CA 	2 	2019 UT App 50
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.

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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.

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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

State v. Martinez-Castellanos
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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

State v. Martinez-Castellanos
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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.

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¶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

State v. Martinez-Castellanos
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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.

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¶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.

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¶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

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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”);

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¶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

State v. Martinez-Castellanos
20130432-CA 	13 	2019 UT App 50
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

State v. Martinez-Castellanos
20130432-CA 	14 	2019 UT App 50
“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.

State v. Martinez-Castellanos
20130432-CA 	15 	2019 UT App 50
¶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

State v. Martinez-Castellanos
20130432-CA 	16 	2019 UT App 50
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

State v. Martinez-Castellanos
20130432-CA 	17 	2019 UT App 50
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

State v. Martinez-Castellanos
20130432-CA 	18 	2019 UT App 50
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

State v. Martinez-Castellanos
20130432-CA 	19 	2019 UT App 50
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
Martinez-Castellanos’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.