Appeal from Superior Court of Whatcom County. Docket No: 95-1-00661-5. Date filed: 12/21/95. Judge signing: Hon. Steven J. Mura.
PER CURIAM. Jose Martinez-Jimenez appeals from his conviction for possession of cocaine with intent to deliver. He contends that he was denied effective assistance when his trial counsel failed to argue that the seizure of three ounces of cocaine from his car's "gear shift boot" exceeded the lawful scope of a search incident to arrest.
On the basis of the record before this court, Martinez-Jimenez has not established either that trial counsel's failure to move for suppression on different grounds constituted deficient performance or that he was prejudiced by the alleged deficient performance. Accordingly, we affirm.
On August 23, 1995, police officers in Whatcom County executed a search warrant at the home of Bill Herbst, a suspected drug dealer. During the course of the search, Herbst agreed to cooperate and arrange a drug transaction with his supplier, whom he identified as appellant Martinez-Jimenez. Martinez-Jimenez, who was known to the officers, was already under investigation for suspected drug dealing. Herbst then telephoned Martinez-Jimenez and requested that he deliver three ounces of cocaine.
Shortly thereafter, officers observed Martinez-Jimenez leave his house with a shovel. A few minutes later, he returned, got into his car, and drove off. Officers then stopped Martinez-Jimenez's car near Herbst's residence and arrested him. During a search of Martinez-Jimenez's car incident to the arrest, three ounces of cocaine were removed from "inside the gear shift boot of the car." At the suppression hearing, one of the officers described the search as follows: "There was a plastic cover, and if you lift the boot, I guess if you lifted that up it was concealed in there."
Martinez-Jimenez was charged with one count of possession of cocaine with intent to deliver. Prior to trial, he moved to suppress the cocaine on the basis that the officers lacked probable cause to arrest him. Defense counsel conceded that if the stop was supported by probable cause, the cocaine was lawfully seized incident to the arrest. The trial court denied the motion to suppress. Martinez-Jimenez waived his right to a jury trial, and the trial court found him guilty based on stipulated facts.
On appeal, Martinez-Jimenez does not challenge the trial court's Conclusion that his arrest was supported by probable cause. Rather, he contends trial counsel was ineffective for failing to move to suppress the cocaine on the additional ground that the search of his car exceeded the lawful scope of a search incident to arrest.
In order to establish that he was denied effective assistance of counsel, a defendant must make two independent showings: (1) that trial counsel's performance was deficient; and (2) that the deficiency prejudiced the defendant. State v. Thomas, 109 Wash. 2d 222, 225-26, 743 P.2d 816 (1988); Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
There is a strong presumption that counsel's representation was effective, and the failure to move for suppression does not constitute per se deficient representation under the first prong of the Strickland test. State v. McFarland, 127 Wash. 2d 322, 337, 899 P.2d 1251 (1995) (overruling State v. Tarica, 59 Wash. App. 368, 798 P.2d 296 (1990)). Indeed, the fact that counsel in this case vigorously argued that the officers lacked probable cause to arrest suggests that he made a reasoned decision not to seek suppression on the theory now urged on appeal. See McFarland, 127 Wash. 2d at 337 n.3.
Martinez-Jimenez bears the burden of showing "from the record a sufficient basis to rebut the 'strong presumption' counsel's representation was effective." McFarland, 127 Wash. 2d at 337. Based on the record before this court, he has failed to satisfy this burden. See McFarland, 127 Wash. 2d at 337.
Martinez-Jimenez has also failed to satisfy his burden of showing, "based on the record developed in the trial court," that the result of the proceeding would have been different but for the alleged deficient performance. Because defense counsel challenged only the arrest and conceded that the search was valid if incident to a lawful arrest, the record contains virtually no information about the circumstances surrounding the search itself beyond the determination that the cocaine was "hidden inside the gear shift boot of the car." Consequently, the record provides no support for Martinez-Jimenez's assertion that the trial court would have granted the motion to suppress.
Moreover, to the extent the issue can be addressed, the record suggests that the trial court would have rejected a challenge to the scope of the search. See McFarland, 127 Wash. 2d at 334 n.2. Martinez-Jimenez argues that the validity of the search requires a balancing of his privacy interests against the existing exigencies and that in this case, "the act of concealing an item in the gear shift boot of a vehicle manifests a subjective expectation of privacy" that outweighed any justification for the search.
Contrary to Martinez-Jimenez's arguments, however, State v. Stroud, 106 Wash. 2d 144, 720 P.2d 436 (1986), expressly rejected the contention that the validity of a vehicle search incident to the arrest of the driver requires a case-by-case balancing of privacy interests against the exigencies of the arrest:
To weigh the actual exigent circumstances against the actual privacy interests on a case-by-case basis would create too difficult a rule to allow for both effective police enforcement and also protection of individual rights. However, a reasonable balance can be struck. During the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant. Stroud, 106 Wash. 2d at 152.
The court again rejected a case-by-case balancing in State v. Fladebo, 113 Wash. 2d 388, 779 P.2d 707 (1989). In Fladebo, the defendant was arrested for DWI and placed into a patrol car. Officers then removed the defendant's purse from the car seat and searched it in her presence. In concluding that the purse was not a locked container and therefore did not fall within the Stroud exception, the court rejected the defendant's argument that the validity of the search depended on a balancing of the exigencies of the arrest against the individual's privacy interests. Fladebo, 113 Wash. 2d at 395. Under the Stroud ...