MA: No IAC for seeking to use evidence from bad search in murder trial — Practice pointer in action

Defense counsel does not always want to exploit a bad search. In this murder case, a search warrant was issued for defendant’s house and his car that was not on the curtilage was searched under the warrant for the house. The state conceded that the search of the car was bad. However, during the trial, it became tactically important to defense counsel to go into what was found, and it became important during cross-examination of the investigating officers because it showed inconsistencies in the investigation. “Counsel in fact highlighted the inconsistencies just described in his cross-examination of Detective McDermott and Trooper Foley, and he argued the point forcefully in closing.” It was not ineffective assistance of counsel to do so. Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010).

This case underscores what experienced defense counsel will inevitably encounter. As discussed in § 45.18 of the Treatise, do you need the evidence from the illegal search to prove another point that is more beneficial? You can file a motion to suppress, but, as the trial date closes in, the defense strategy for witness examination may be evolving and may require foregoing the motion to suppress entirely. Or, you may try the motion and win it, and then unexpectedly find you need to use the evidence at trial anyway. It happens, and it has happened to me. After all, no matter how well prepared you are, a trial always includes a series of unanticipated events that requires quick thinking and judgment calls based on one’s experience. Just because you won or can win a motion to suppress doesn’t mean that you have to remain locked in to it as the trial progresses. Usually the object is winning the criminal trial, not just the motion to suppress.