D.N.M.: Def’s conditional plea and slight chance of success on appeal aren’t enough to avoid detention at plea

Defendant litigated a motion to suppress and lost, and then he entered a conditional plea. Because his sentencing range is 10 years or more, he is ordered into custody. The court is not convinced there is a debatable issue for appeal to justify defendant’s remaining free until the appeal is decided. (Essentially, as judicial hostility to the exclusionary rule grows and the exclusionary rule gets pared down at SCOTUS every turn, only the really guilty actually benefit, so defendant can start doing his time.) United States v. Ramos, 2016 U.S. Dist. LEXIS 180246 (D.N.M. Dec. 30, 2016):

In the end, Congress wants the people to be released pending appeal to be people who are likely to win an appeal. Even if the Court were to use 18 U.S.C. § 3143(b) now, in the presentencing context, the Court cannot say that it is likely that Ramos will be successful on appeal. The Court worked hard on the Motion to Suppress. It feels confident about its decision. Ramos is likely to go to prison for a lengthy period of time for transporting such a large amount of methamphetamine. Finally, it is not unjust for Ramos to serve some time in prison for his crime, which he readily admits he committed; if he escapes a lengthy prison term because the police blundered, it is no great injustice that he stay in prison — for a relatively short period of time — until the Court of Appeals decides that the Court should have granted a motion to suppress.8 Accordingly, the Court will apply the standard found pursuant to § 3143(a), which governs Ramos’ Appeal, because the Court has not yet sentenced Ramos.

8. The Court has recognized that “both scholars and judges have posited that exclusion of probative, reliable evidence of a defendant’s guilt is too high a price to pay for the unknown degree of deterrence that exclusion achieves.” United States v. Christy, 785 F. Supp. 2d 1004, 1039 n.8 (D.N.M. 2011) (Browning, J.) (citing Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 U. Ill. L. Rev. 363, 369-70, 442-43 (1999); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 795-800 (1994)(“[I]f deterrence is the key, the idea is to make the government pay, in some way, for its past misdeeds, in order to discourage future ones. But why should that payment flow to the guilty? Under the exclusionary rule, the more guilty you are, the more you benefit.”); Hon. Malcolm Richard Wilkey, A Call for Alternatives to the Exclusionary Rule, 62 Judicature 351 (1978-79); Hon. Malcolm Richard Wilkey, The Exclusionary Rule: Why Suppress Valid Evidence?, 62 Judicature 214 (1978-79)).

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