I got assigned an appeal a little while back with an interesting issue.  The case centered on one of the city’s local after-hours joints, where drinks are dispensed without benefit of a license from the Liquor Commission, and, horror of horrors, people gamble, too.  Since there’s no other crime in Cleveland, the vice squad had set up surveillance of the joint for lack of anything better to do. 

The undercover cop who went in the first night to scope out the place saw that my client, whom we’ll call Walter, was tending bar, which in this case meant sitting at the kitchen table and pouring drinks for everybody.  They got a warrant, and the next night, in the company of the SWAT team, took the place down.  After rounding up the eight or nine people who were there and sitting them down, handcuffed, at the dinner table, the cops started yelling at Walter that they knew there was a gun in the house, and he’d better tell them where it was or they’d have to tear the place down.  He told them it was behind a dresser in the bedroom, which it was, and for his trouble got charged with having a weapon under disability.

There was nothing else tying Walter to the house — no evidence was introduced as to who owned it — or the gun; the undercover cop had testified that he’d seen a couple people carrying guns the night before, but neither of them was Walter.  Nor did anyone testify that Walter had been advised of his Miranda rights before his admissions about the gun had been elicited.  He was unquestionably in custody, so those statements should have been suppressed.  Except that his defense attorney hadn’t filed a motion to do that.

I’m not big on making arguments on appeal that trial counsel was ineffective; in all the appeals I’ve done over the past 30 years, I think I’ve raised that maybe three or four times.  I don’t like Monday-morning quarterbacking lawyers who have to make split-second decisions in the heat of trial.  Plus, it’s rarely a successful approach.  The standard is exceedingly hard to meet, and appellate courts are extremely deferential, often willing to fluff off even questionable decisions under the rubric of “trial strategy.”  And there’s loads of case law that says the failure to file a motion to suppress isn’t per se ineffective assistance.

But there are a handful that say it is when a motion obviously lies and the defendant was prejudiced by the failure to file one, and that’s what I figured I had here.  So I put it together, and last week we had oral argument.

The State’s brief contended that we didn’t really know whether Miranda warnings had been given, because there’d been no hearing on the motion to suppress, and the issue of warnings wouldn’t have been an issue at trial.  The Catch-22 nature of that argument is apparent — we can’t tell whether the lawyer should have filed a motion to suppress because there wasn’t a hearing since the lawyer didn’t file a motion to suppress — but I decided to go one better.  It’s been my experience that if a defendant’s statement is introduced at trial, prosecutors will almost always introduce evidence that he was given Miranda warnings, too, just so some hot-shot on the jury won’t tell everybody during deliberations, “Hey, the guy wasn’t told his rights, so we can’t use the statement.”  I told that to the panel, then pointed over to the prosecutor and said, “I know Mr. X very well, and he’s an extremely competent and effective prosecutor.  Believe me, if Miranda warnings had been given, Mr. X would have made sure the jury knew that.”  The prosecutor had told me when I’d filed my brief that I was “rotten” for making the IAC claim.  Payback’s a bitch, dude.

So the oral argument went very well, and I was feeling pretty good.  Until I read the 8th District’s decision last week in State v. Smith. 

Smith involved a Bullshit Traffic Stop (changing lane without signaling), which ended up with the cops finding a jacket containing cocaine packets lying on the front seat of the car.  Smith denied at trial that it was his, but that claim was complicated by the fact that, at the stop, he’d said he was just “holding it for his Uncle Darryl.”  On appeal, he argued that his counsel was ineffective for not trying to suppress statement, since he was under arrest at time he made it.  Sound familiar?

So what does the court do?  Not much.  After reciting the same basic law I mentioned above, the court concludes:

A motion to suppress is particularly unnecessary where the facts demonstrate, as they did in this case, that the defendant had been placed under arrest before he made an incriminating statement. In the process of making an arrest, police officers routinely provide a warning to the arrestee that “any statement” may be used against him. Presumably, counsel knew of this fact, and decided to forego filing a motion to suppress evidence on this basis.

Got that?  Basically, no motion to suppress was necessary, because the officers must have advised the defendant of his rights, since that’s what officers routinely do when they arrest someone.

Now, I think Smith was results-oriented decision-making, that is, that the court reached the result it wanted, then came up with the reasoning to support it.  An IAC claim was a stretch, especially since Smith’s lawyer had gotten him acquitted of the charge of trafficking in cocaine, despite Smith having fourteen grams of the stuff, and had persuaded the judge to put Smith on probation after the trial.

Still, I’m not feeling as good as I did last week. 

Especially since the judge who wrote the opinion in Smith was one of the judges on my panel.