TN: Def’s post-conviction burden is to show that the motion to suppress would have prevailed

On a post-conviction petition that defense counsel was ineffective, the defense has to put on proof to show that there is some reason to believe that the motion to suppress would have been granted if it had been pursued at trial. Here, there was nothing in the record to conclude much of anything, and looking back at the trial record doesn’t help either. It suggests abandonment, but the issue was never explored. Gatewood v. State, 2017 Tenn. Crim. App. LEXIS 113 (Feb. 17, 2017):

From the record before us, we cannot determine the likelihood of success for a motion to suppress the search of Petitioner’s cellphone. At the evidentiary hearing, only trial counsel and Petitioner testified. Trial counsel testified that he believed such a motion would have been “frivolous.” Petitioner did not present any proof to contradict this testimony because a suppression hearing was not litigated at the post-conviction evidentiary hearing.

Having reviewed the record from Petitioner’s direct appeal, it is silent as to the location of Petitioner’s cellphone once removed from his vehicle. By the time the police arrived at the scene of the crime, the victim had moved the cellphone to his porch; however, no testimony or other evidence addresses where the cellphone was while Petitioner shot the victim, retrieved his automobile keys, and fled. Thus, we cannot determine whether Petitioner abandoned his expectation of privacy in the cellphone when he left the crime scene because we do not know if he knew the victim had taken the cellphone in the first place.

Similarly, we cannot determine whether the search of the cellphone was justified by exigent circumstances. Petitioner did not call any of the law enforcement officers to testify about the circumstances surrounding the search of the cellphone. Trial testimony on this matter was limited because the issue was not contested, and the affidavit of complaint entered into evidence during the evidentiary hearing is not enough to address the issue.

On the record before us, Petitioner has failed to carry his burden of proving by clear and convincing evidence that trial counsel provided ineffective assistance by failing to file a motion to suppress a search of his cellphone because Petitioner did not prove that a motion to suppress would have been successful.