Twists and Turns and Finally . . . A Win!
Yesterday, I started a trial for felony possession of cocaine. My client didn't really have much of a defense (ie., I was wearing someone else's clothes or the officer planted it on me), but the prosecutor had refused to offer him a misdemeanor, so he didn't really have much to lose by going to trial. We decided to tee it up. Maybe she won't get all the witnesses she needs for chain of custody or something. Who knows? When you've got almost nothing to lose, you might as well take a shot.
So, we began yesterday morning with a hearing on whether my client's statements to law enforcement were admissible. Honestly, I wasn't clear why the prosecutor wanted them in. All my client had said, in two separate statements, was, "It's not mine. The other officer planted it on me," and "It's not mine; those aren't my shorts." If I were the prosecutor, I wouldn't be offering those statements myself, but whatever. It's her case to prove. So, through the testimony elicited in the hearing, something unexpected happened. The officer described the circumstances of the search in a way slightly different than in his report. He testified that he had responded to a vandalism complaint, and detained a few young men, including my client. When he ran my client's name through dispatch, he discovered that he was a runaway from Seattle. After talking to my client's parents on the phone, it was arranged to transport him to the police station where his parents would pick him up. As part of police procedure, he conducted a pat-down search for weapons before transporting him in the patrol car. During the patdown search, he felt a small rock in one of his pockets. Not knowing what it was, he pulled it out of the pocket, and, wouldn't you know it, it looked like crack. So now, my client is under arrest. When he is strip-searched at detention, they find more crack.
Now, the wheels in my head start turning. First, I thought about what a stupid, boneheaded move it was not to file a motion to suppress. I think I have fallen into a bit of a bad pattern of not filing them when it seems clear from the report that the search was legal. But now I'm thinking, "That doesn't sound like a legal search. What the hell do I do? Have I waived it by not filing the motion pre-trial? Should I pretend I don't realize it's illegal so I don't look bad? No, I obviously can't do that. What the hell do I do?"
When the court took its morning break, I called my office and frantically asked one of my colleagues for some advice on making a motion to suppress once trial had already started. He told me I could and should do it. Of course, I knew this was right. But, it felt good to have backup. He offered to start finding the cases for me. When we came back to court, I advised the court of my oral motion. Over the state's objection, she agreed to let me argue it, and recessed for a couple hours to give us time to find caselaw.
I came back to the office and went to work. Two of my colleagues helped me by pulling together some of the relevant Washington cases. I did my best to pull my argument together. Heading over to court, having read the cases, I was pretty confident of a ruling in our favor.
The prosecutor recalled the officer to elicit some additional testimony. I asked him about what he thought the object was when he felt it. He stated that when he felt the rock, had no idea what it was. "It could have been anything," he said. Again, I'm thinking, SLAM DUNK. You can't do anything more than a patdown search unless, by plain feel, you immediately recognize something as a weapon or contraband, or, stretching it a little, if something has the size and density of a weapon, but requires further investigation. Then, you can do a more intrusive search to determine if it is, in fact, a weapon. So, I ask him about the size of it. He won't admit to it being the size of a pebble. All he'll say is that it is smaller than a golf ball. But, he never offers any testimony that he thought it was any type of weapon in particular. Just that, "It could have been anything."
So, we argue the motion, and the judge quickly rules against me. She explained that a weapon could be small--a razor blade, a piece of wire, a rock, a firecracker, etc. And since he didn't know what it was, it was legal for him to pull it out of my client's pocket and determine if it were a weapon. She was not swayed by my argument that her ruling essentially created an exception that swallowed the whole rule. It seemed to me that her ruling was that anytime an officer felt anything that he couldn't rule out 100% as being a weapon, he is entitled to do a further search to determine what it is. The way I read the caselaw, an officer can only conduct a further search if he reasonably believes it is a weapon. But, that was that. I told my client I thought we had an excellent argument for appeal, but we'd go on with the trial.
And then, something else unexpected happened. When the same officer was testifying at trial, the actual drugs were offered into evidence. I threw up some chain of custody objections, and the court didn't admit them, but allowed the state to get the necessary witness to establish chain of custody. But again, the wheels in my head started turning, and I decided to get some more information in the record about the size of this rock, with the intention of re-urging my motion to suppress, and having a better record for appeal. So, this morning, after crossing the officer about the relevant guilt-innocence questions (with almost no defense, there weren't many), I ended with two final questions. I asked him to look at the exhibit and describe the size of the rock that he had found in my client's pocket. He described it as "pea-sized." I asked him to refer to the lab report, and confirm that the weight of that rock was .17 grams. He did. No further questions.
So, we take another break so I can interview the new chain of custody witness. It looks like the prosecutor has what she needs to establish chain of custody, so I'm feeling 99.9% sure of a conviction. I intend to re-urge my motion to suppress, but don't really expect anything to come of it at this stage. I'm just doing it for the record on appeal.
But then, something else unexpected happened. When we came back from our break, the judge announced that she had to do something before starting back up. After hearing the additional testimony from the officer about the size of the rock, she decided that she must reverse her prior ruling and grant my motion to suppress. She said there was no way he could have thought an object that size could be a weapon, and even if he did, he didn't testify that he did. The crack found in my client's pocket was suppressed, and the addditional crack found in the detention search was suppressed as fruit of the poisonous tree. Fourth amendment vindicated. Case over. Not guilty.
It was fantastic! So, what did I learn, or re-learn, here?
1) Always file a motion to suppress, even when it looks like everything was legal.
2) Don't ever let your fear of admitting a screw-up prevent you from raising every necessary legal issue for your client.
3) One of the best things about working in a public defender's office is having colleagues to back you up in those frantic moments that come up in the middle of a trial.
4) Judges sometimes do the right thing when you least expect it.
5) You never know what is going to happen in a trial that might turn a hopeless case into a winner.
6) It feels really good to win.
My client is a good kid with no prior convictions. He had run away from home and fallen in with some not so good people. Now, he's back home, and doing well. And he can now move forward with his life without a felony drug conviction making his life that much harder.