Accept a Good Deal or Roll the Dice?
John Katz posts at Underdog Blog about a possibly illegal search that led to his client’s arrest for possession of marijuana. Describing an informal discussion (off the record) with the police officer and the prosecutor:
He said he patted down my client down for his own safety, which he said he routinely does. Yow! The Supreme Court limits patdowns to situations where a police officer has reasonable, articulable suspicion to believe that the patdown will find contraband, ordinarily a weapon. This police officer was running afoul of this Terry decision.
After the discussion, the prosecutor offered a good resolution which the client accepted. (From the sounds of it, the Austin equivalent to the offer was a deferred disposition/dismissal for a Class C offense).
But wait, some might say, if the defense lawyer had an opportunity to win the case outright for his client, why not press forward with the pretrial motion to suppress? That way, the client would get no punishment, no community service, no small fine, no nothing. Well, as Katz goes on to say:
I could have advised my client to go to trial, but I expected that the officer would have thrown in some specifics for having reasonable and articulable suspicion that my client was armed (which he was not), which included his alleged significant nervousness, and the nighttime roadside location. Suppressing this patdown -- which was followed by my client's allegedly fessing up that the hard object in his pocket was a pot pipe -- was no shoe-in.
Unlike TV and movies, where judges seem to endlessly toss murder cases before trial because of undotted T’s, in reality, suppression hearings are difficult to win. I think Katz did well to advise his client to accept the 100% certain “stay out of trouble and get your dismissal” deal here.
And even if the hearing turned out the way the lawyer expects it to, with no extra facts popping up to bolster the state’s case, do you really want to spend the extra money appealing the case if the judge sees the law differently than you do? Often when a Travis County prosecutor agrees to dismiss your case if you’ll do something minor in return, my advice is: take the 100% guaranteed good result, rather than roll the dice and risk blemishing your criminal history.
