D.Haw.: A frivolous motion to suppress can harm the cause

Not filing a frivolous motion to suppress isn’t ineffective assistance of counsel, and it could harm the cause more than help. United States v. Sesepasara, 2022 U.S. Dist. LEXIS 147899 (D. Haw. Aug. 18, 2022):

“Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious[.]” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986). Indeed, filing frivolous motions to suppress can be detrimental to a defendant:

A lawyer’s zeal on behalf of his client does not require him to file a motion which he knows to be meritless on the facts and the law. Also, the premise that the defendant has nothing to lose by such a motion is false. The defendant stands to lose two things of value — a significant quantity of his lawyer’s scarce time, and some of his lawyer’s credibility with the judge. Lawyers are not called “counsel” for nothing. The judge is counseled by the lawyers as to how he should proceed. The attentiveness with which the judge listens to the lawyers’ advice is tempered by his judgment about the credibility of the particular lawyer. An unmeritorious motion to suppress may cost the particular defendant some deference by the judge to his lawyer’s advice on other issues later in the case. It will certainly cost the particular defendant the time his lawyer wastes in the library and at his desk generating valueless paper, when he could be working on better motions, interviewing witnesses, examining locations and evidence, researching likely evidentiary issues, and preparing for trial.

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994). Moreover, as would have likely happened in this case, the filing of a frivolous motion to suppress can result in a less favorable plea negotiation. See ECF No. 121-4 at 1.

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