Army CCA: Def showed IAC from defense counsel’s decision to forgo a motion to suppress; failure to show nexus was unreasoned and entitled to no Strickland deference

Defendant on post-conviction showed that trial defense counsel’s decision to forgo a motion to suppress for failure to show nexus was unreasoned and entitled to no Strickland deference. United States v. Close, 2017 CCA LEXIS 432 (Army Ct. Crim. App. June 27, 2017) (memorandum):

Appellate defense counsel indicated at oral argument that Nieto’s publication prompted their focus on the search issue in this case. On the related issue of whether Nieto broke new ground in search and seizure jurisprudence, appellate defense counsel essentially conceded that it did not. We agree and emphasize that, had Nieto established a new legal principle in 2017, it would be manifestly unreasonable to upend the result of a criminal trial because trial defense counsel did not account for that yet-unknown principle in 2014. Instead, just as the trial defense team failed to correctly identify the constitutional issues presented by the search warrant in this case, so too did the appellate defense team until our superior court reminded practitioners of extant fundamental constitutional protections against unreasonable search and seizure. Specifically, as in this case, “a [law enforcement officer's] profile alone without specific nexus to the person concerned cannot provide the sort of articulable facts necessary to find probable cause to search[.]” Nieto, 76 M.J. at 106 (quoting United States v. Macomber, 67 M.J. 214, 220 (C.A.A.F. 2009)).

Mindful of our duty to give great deference to reasoned, tactical decisions of defense counsel at trial, we can find no sound rationale in either CPT JK’s or JW’s affidavit. Captain JK does not recall identifying an issue with the search warrant. JW’s affidavit, on the other hand, offers a rather muddled and ultimately unhelpful recollection of his reason for not filing a suppression motion. His affidavit seems to conflate the concept of inevitable discovery—which the record in this case does not support—with the idea that the factfinder was going to hear Ms. AM’s testimony anyway. In fact, Ms. AM’s testimony in this case was far from inevitable. First, the defense moved to exclude it; and, second, the government did not call her to testify. Considering these affidavits in light of the warrant application’s lack of showing any particularized “nexus” between appellant’s laptop and his other digital media devices, we conclude the trial defense team was deficient.

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