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CA5: IAC claim for not challenging alleged consent search merits a hearing

By John Wesley Hall, Jr.

Defendant showed sufficient doubt about counsel's performance in failing to file a motion to suppress and urging a guilty plea before the videotape of the stop was even made available to the defense. The videotape the defendant reason to fire defense counsel and hire another lawyer, and the pleadings and the video were sufficient to show a likelihood of success as to consent not being voluntary. On the merits of the stop, it was based on a traffic violation, but the record is devoid of anything showing reasonable suspicion. On the merits of the search, the defendant was asked to follow the police officer to another location for the writing of his warning, but the officer retained the paperwork during this "decamp[ment]." The court does not decide the merits of the consent issue because there was no suppression hearing, but it is outlined for the District Court...continue to full post

Full post as published by Fourth Amendment on December 19, 2008 (boomark / email).