CA9: Not questioning search likely sound strategy where defense at trial was disassociation from the drugs and the place they were found

Defendant’s IAC claim on his search isn’t proper for direct appeal, and it should proceed in a 2255. “However, counsel may have had strategic reasons not to file a suppression motion to avoid having Birrueta testify. For example, testifying at the suppression hearing may have impacted his ability to disassociate himself from the drugs in the shed at trial–a defense that he in fact presented. See United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289-90 (9th Cir. 1994). The record is silent as to counsel’s reasoning in opting not to file the motion, so this issue is a more appropriate subject for collateral review, where the record could be further developed.” United States v. Birrueta, 2015 U.S. App. LEXIS 12202 (9th Cir. July 15, 2015). [This is dicta, but it’s essentially asking the accused: You really want to go there?]

Defense counsel did not file a motion to suppress, but he did object at trial to admission of the evidence. Still, defendant can’t show IAC because he can’t show that the motion would have been granted. Ray v. State, 2015 Tex. App. LEXIS 7330 (Tex.App.–Houston (14th July 16, 2015).*