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Lancaster v. State3/28/2002
v. State, 977 P.2d 1289, 1292 (Wyo. 1999); Dennis v. State, 963 P.2d 972, 977 (Wyo. 1998). Furthermore, ineffective assistance of counsel is not shown where counsel had no defense to present. Munden v. State, 698 P.2d 621, 624 (Wyo. 1985). In particular, counsel is not ineffective for failing to pursue a motion to suppress where there is no underlying justification for the motion. Beadles, 984 P.2d at 1086; Starr v. State, 888 P.2d 1262, 1266 (Wyo. 1995), overruled on other grounds sub nom. Jones v. State, 902 P.2d 686 (Wyo. 1995).
[ ] The second element of the Strickland test for ineffective assistance of counsel, assuming counsel's deficient performance has been shown, is proof that prejudice to the appellant resulted. This requires a showing of the existence of "a reasonable probability that, but for counsel's errors, the outcome of the trial would have been different." Herdt, 891 P.2d at 799; Starr, 888 P.2d at 1266. In the case of a failure to seek suppression of inadmissible evidence, prejudice will result where, in the absence of that evidence, "only a limited amount of evidence was available to the prosecution to support a conviction." Dickeson, 843 P.2d at 612.
DISCUSSION
[ ] The allegation underlying the claim of ineffective assistance of counsel in this case is that trial counsel failed to move to suppress the statements and evidence obtained as a result of the arresting officer's search of appellant's wallet. *fn14 The focus of our inquiry, then, is the law of search and seizure as it relates to such incidents of police-citizen contact. *fn15
[ ] Neither the federal nor the state constitution forbids all searches and seizures; rather, they prohibit unreasonable searches and seizures. Guerra v. State, 897 P.2d 447, 452 (Wyo. 1995). Warrantless searches and seizures are unreasonable per se, with but a few exceptions. Gehnert v. State, 956 P.2d 359, 362 (Wyo. 1998); Morris v. State, 908 P.2d 931, 935 (Wyo. 1995). Those exceptions include:
"1) search of an arrested suspect and the area within his control; 2) a search conducted while in hot pursuit of a fleeing suspect; 3) a search and/or seizure to prevent the imminent destruction of evidence; 4) a search and/or seizure of an automobile upon probable cause; 5) a search which results when an object is inadvertently in the plain view of police officers while they are where they have a right to be; 6) a search and/or seizure conducted pursuant to consent; and 7) a search which results from an entry into a dwelling in order to prevent loss of life or property." Morris, 908 P.2d at 935 (quoting Ortega v. State, 669 P.2d 935, 940-41 (Wyo. 1983), overruled on other grounds sub nom. Jones, 902 P.2d at 692).
When a proper objection or motion is made by a defendant, the state bears the burden of proving that one of these exceptions applies. Mickelson v. State, 906 P.2d 1020, 1022 (Wyo. 1995); Dickeson, 843 P.2d at 610.
[ ] The appellant relies primarily on two cases to support his assertion that his attorney was ineffective. In Dickeson, the defendant's arson conviction was reversed because she did not receive effective assistance of counsel. Counsel's deficiency was the failure to file a motion to suppress evidence seized without a warrant under circumstances not fitting one of the exceptions to the warrant requirement. Dickeson, 843 P.2d at 613. Similarly, in Morris, the defendant's controlled substance convictions were reversed because the court did not suppress evidence seized from the defendant's wallet, where there was no warrant and no exception applied. Morris, 908 P.2d at 937. In the instant case, the appellant insists that, although he consented to a pat-down search for weapons before getting into
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