MD: Defense counsel in drug case had conflict of interest in representing police officer in a divorce case who arrested and searched client and the search wasn’t contested

Defense counsel had a conflict of interest where he represented both a drug case client and the police officer who arrested and searched him and his cell phone. Defendant made a sufficient showing of actual prejudice to warrant a new trial where defense counsel didn’t contest the search. Podieh v. State, 2020 Md. LEXIS 363 (Aug. 14. 2020) (the police officer was a divorce client, and the lawyer was handling both sides of the divorce; in that case, the wife actually sued the lawyer for negligence in favoring the husband police officer):

Under the facts known to Mr. Discavage while representing Petitioner, filing a suppression motion remained objectively reasonable throughout the representation. Following the traffic stop in February 2015, Petitioner faced single counts of possession of a controlled dangerous substance and possession with intent to distribute a controlled dangerous substance. Those charges occurred as a result of Deputy Ensor’s alleged detection of the odor of marijuana. No other evidence indicated that Petitioner possessed drugs until Deputy Ensor questioned Petitioner about the marijuana. Filing a motion to suppress under those circumstances was the objectively reasonable course of action for two primary reasons. First, the drugs would have been inadmissible in the traffic stop case if Petitioner prevailed on the motion. Second, Petitioner is a non-citizen, and Mr. Discavage was aware of that from the onset of the representation. Mr. Discavage was also aware that criminal proceedings against Petitioner posed immigration consequences for him. As Petitioner’s immigration counsel explained, “unless Petitioner was able to negotiate a plea to Possession of Marijuana – less than 30 grams, Petitioner was ‘screwed.'” Under those circumstances, Mr. Discavage should have challenged the traffic stop in an attempt to subvert his client’s criminal charges, and therefore prevent potential immigration issues. Nothing in the record explains why a motion to suppress was not filed. See Gagnon v. Scarpelli, 411 U.S. 778, 787, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973) (“[L]awyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients’ positions and to contest with vigor all adverse evidence and views.”).

As for the third prong of Mickens, Petitioner argues that the failure to file a motion to suppress was linked to Mr. Discavage’s conflict of interest. We agree and affirm the post-conviction court’s finding that filing a motion to suppress in the traffic stop case was inherently in conflict with Mr. Discavage’s relationship with Deputy Ensor. Had Mr. Discavage filed a motion to suppress in the traffic stop case, Deputy Ensor would have been called to testify. In that situation, Mr. Discavage would have cross-examined Deputy Ensor and questioned his recollection and attacked his credibility, i.e., questioned whether Deputy Ensor genuinely detected the odor of marijuana and properly conducted the traffic stop and arrest. Such a confrontation between defense counsel and the arresting officer called as the State’s witness is innately adversarial.

In juxtaposition, Deputy Ensor would likely have been a fact witness in the civil case, the very subject of which related to the allegation that Mr. Discavage improperly favored Deputy Ensor in his divorce from Ms. Ensor. Mr. Discavage would undoubtedly be better served by a friendly witness—one who was at the center of the controversy—than one that is hostile or ornery. In the criminal cases, Mr. Discavage would impugn Deputy Ensor; in the civil case, Mr. Discavage would rely on Deputy Ensor to absolve Mr. Discavage of wrongdoing. Maintaining a positive rapport with Deputy Ensor for the sake of a positive outcome in the civil case was inherently in conflict with cross-examining Deputy Ensor in Petitioner’s criminal cases.

Accordingly, we hold that Petitioner satisfied his burden of proof in establishing that the failure to file a motion to suppress was linked to Mr. Discavage’s on-going relationship with Deputy Ensor. Petitioner established that Mr. Discavage labored under a conflict of interest and satisfied all three prongs of the Mickens test. Because counsel had a conflict of interest that adversely affected the representation, the Sullivan rule is met, and Petitioner is entitled to a new trial with conflict-free representation.