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Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience:  I have 15 years experience in criminal litigation including several years as a felony prosecutor
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Hi, I was arrested and indicted last summer for failure to

Customer Question

Hi, I was arrested and indicted last summer for failure to stop and render aid, the alleged incident happening over 3 years ago. I secured a lawyer and after I received copies of all the evidence, I found (on my own) that the search warrant and initial bench arrest warrant was issued by a magistrate (municipal judge) outside their venue and jurisdiction. The law in my state, requires the warrant to be signed by a judge/magistrate within both venue and jurisdiction, as well as a signed order of return. The vehicle (which was the focus of the warrant) was over 100 miles away & by state law should have been decided in that physical location. My attorney has met with the assistant DA a plea offer of 10 years (the maximum). The case is circumstantial, based on the testimony of a fired employee. I want to submit a motion to suppress the vehicle based on unlawful search, what would be the argument NOT to suppress? It can't be a good faith mistake with full info. My lawyer is acting uncertain.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Joseph replied 4 years ago.

It sounds like you've got a rather unusual situation. In your attorney's defense, it is always difficult to state with any real certainty what a judge would do with a motion to suppress. There are very few certainties and many shades of grey.

 

It sounds like his suggestion is that the prosecutor would argue "inevitable discovery", meaning that they would have turned up the evidence anyway. Obviously, I wasn't part of the discussion with your attorney. If he was, in your opinion, indicating that the law enforcement "could have done this correctly, but chose not to", then I would agree with you, this seems like a weak argument. However, if he's arguing, as I suggested, the inevitable discovery, that might be a stronger argument.

 

Inevitable discovery, as the term implies, means that, even without the unlawful activity, law enforcement would have ultimately obtained the evidence anyway. In your situation, the prosecutor would need to have some viable argument that the officers WOULD have gotten into the car anyway.

 

Based on your information, this would be my best argument as to why NOT to suppress the evidence.

 

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Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience: I have 15 years experience in criminal litigation including several years as a felony prosecutor
Joseph and 6 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
Thanks Joseph - that was much clearer than my attorney's answer. I actually asked "Why would a judge not suppress?" He never used the term 'inevitable discovery', but rather said the most probable argument from prosecutors was - the outcome would be the same had they gone through proper channels.
My follow-up question is "how can you prove something 100 miles away would inevitably be discovered? And, in being so discovered, wouldn't a search warrant still be needed for seizing and impounding the property?"
I had never heard the term inevitable discovery, but it seems like that would hurt our 4th amendment rights, because how can you disprove the argument? (By the way, the case had been closed for over a year, as far as investigation when this informant came forward). Thanks again,
Expert:  Joseph replied 4 years ago.

I'm happy to SPECULATE as to what might happen here, but please keep in mind, that's exactly what it is, speculation. While I can appreciate your concerns about your attorney, he is clearly in a better position than me to address this concern.

 

As to that, you might want to consider changing attorneys. It sounds like you're very dissatisfied with him, YOU did the research, not him, he has done little for you as to a plea offer and hasn't followed up on the search warrant issue.

 

Anyway, enough preaching....

 

To demonstrate inevitable discovery, the prosecutor would call the lead investigator. The investigator would discuss all avenues he had pursued, the evidence he had obtained, etc. Ultimately, the prosecutor would want the investigator to testify that, through his other leads, he would have ultimately located the car and conducted a lawful search of the car.

 

As to still needing a search warrant, it depends. For instance, they wouldn't need a warrant to see the outside of the car and/or anything in plain sight within the vehicle. Additionally, their observations of these things (the outside of the car and anything in plain sight), might provide an additional basis for a warrant.

 

What will happen here? Tough to say. I would suggest setting up an office conference with your attorney. Discuss all your issues/concerns with him. After the meeting, make a decision as to whether you stick with him or hire another attorney. Assuming the offer is still the maximum, you've got nothing to lose in pursuing the motion.

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