OH8: Hard to show prejudice for IAC on not raising a motion to suppress until mid-trial

Defense counsel didn’t file a motion to suppress because she didn’t see a reason for it until testimony at trial revealed the issue. Therefore, the defense made a mid-trial motion to suppress. The trial court denied it on two grounds: untimeliness and based on the testimony at trial. The court can’t say on what it has before it that a pretrial motion to suppress would be granted to satisfy the prejudice prong. Raising the issue mid-trial is just too different, and a lot more evidence is in. State v. Oliver, 2018-Ohio-3667, 2018 Ohio App. LEXIS 3966 (8th Dist. Sep. 13, 2018):

[*P38] Unlike in Wright, the appeal in this case follows a jury trial. It is difficult for a defendant to establish in hindsight on the basis of evidence contained in a trial transcript, that a suppression motion would have been granted. State v. Morrison, 4th Dist. Highland No. 03CA13, 2004-Ohio-5724. “[T]he record developed at trial is generally inadequate to determine the validity of the suppression motion” because the issues at trial are different than the issues at a suppression hearing. State v. Culbertson, 5th Dist. Stark No. 2000CA00129, 2000 Ohio App. LEXIS 5257,*13-14 (Nov. 13, 2000); State v. Hohvart, 7th Dist. Mahoning No. 06 MA 43, 2007-Ohio-5349 (insufficient evidence presented at trial to determine whether a motion to suppress would have been successful); see also State v. Abass, 5th Dist. Stark No. 2016CA00200, 2017-Ohio-7034; State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109; State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482.

[*P39] Following the close of the state’s case and prior to making a Crim.R. 29 motion for acquittal, Oliver moved to suppress the drugs that were discovered as part of the search of his hotel room. (Tr. 423.) Counsel indicated that she was unaware prior to trial of the circumstances surrounding the search because there was no indication in Officer Bayer’s report regarding how the police gained access to the room. However, after Officer Bayer testified that he entered Oliver’s room at the request of the hotel manager to remove any other occupants from the room, counsel then realized that the search may have been unlawful, thus precipitating her mid-trial motion to suppress. After hearing arguments from both sides, including the state’s objection that the motion was untimely, the trial court denied the motion to suppress as untimely, but also because “the testimony has been given on the subject.” (Tr. 426.) Arguably, trial counsel did in fact move to suppress the evidence and the trial court considered the merits of the motion when it denied the oral motion. If that were true, Oliver’s challenge on appeal would be moot.

[*P40] In this case, the record is undeveloped to determine if a suppression motion would have likely been granted. The issue at trial was whether the state presented sufficient evidence to prove that Oliver committed the offenses as indicted; not whether the search of Oliver’s hotel room was lawful. Therefore, the state did not need to set forth any testimony or evidence from the hotel manager regarding Oliver’s status as a hotel guest to satisfy its burden of proving its case again Oliver. Accordingly, we cannot say that the motion, if filed, would have likely been granted because the state presumably would have elicited testimony from the hotel manager about Oliver’s status as a hotel guest to justify the warrantless search.