WA Legal Roundup: Division III
Smackdown Moses Lake style!
The police were called to the home of Mr. Trujillo as he was seen beating a woman in his front yard at 2:00 a.m. When the police arrived they found a drunken Trujillo, an even drunker Ms. Steffler and personal effects scattered across the front lawn. After questioning both parties, they decided to arrest Trujillo for Domestic Violence Assault 4. Upon searching Trujillo the officers found a 1/2 ounce of cocaine in his pocket. For personal use, I’m sure.
Trujillo was charged with DV4 and possession with intent to deliver. At trial Trujillo agreed that there was probable cause for arrest, but there was insufficient evidence to convict on the charge of DV4. The court agreed and dismissed the DV charge, but not the possession charge for which Trujillo was subsequently found guilty.
Trujillo’s appeal is based on the constitutionality of his arrest and subsequent search, even though he did not challenge this at the trial level an in fact agreed there was probable cause. He also claims ineffective assistance of counsel.
So can Trujillo raise a constitutional search issue when he not only did not object, but acknowledged that the police had probable cause? NO! "A defendant waives the right to challenge the trial court's admission of evidence gained by an illegal search or seizure by failing to move to suppress the evidence at trial." Insert NUMEROUS case citations.
So can Trujillo challenge a warrantless search for the first time on appeal based on ineffective assistance of counsel? He can only if he can show from the record that the trial court would likely have granted a motion to suppress the evidence found as a result of warrantless search. In addition, Trujillo had to show that his lawyer's work was deficient and that he was prejudiced by the failures.
A defense lawyer performs deficiently when his or her representation falls below an "objective standard of reasonableness based on consideration of all of the circumstances.” An appellant must show that "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”
Citations removed. Reviewing the record, there was sufficient evidence to support the finding of probable cause to arrest Trujillo even though in the end there was not enough evidence to convict. Thus even if Trujillo had challenged the arrest and search, he probably would have lost and thus his counsel did not act deficiently.