Defense work requires that one is not distracted by the formidable arguments on the other side of the courtroom. It is easy to call it being cognizant of the other side and trying to strategize against every eventuality. It doesn’t always pan out.
I wrote a memorandum once for a Mapp suppression hearing that included a paragraph that I thought lent it a fine air of credibility and sound judgment. It was easy for me to see that the gun should be suppressed, because the police had no warrant, no exigent circumstances; not even a story that made any sense. They had used security guards at a public housing unit to gain entry to the apartment. They interviewed a maintenance man who said he hadn’t seen the tenant take out the garbage for two weeks, so they “reasonably” assumed the apartment was abandoned. But they believed the tenant’s guest was there. They entered in a stack, found several people inside in the living room, and the client in the bedroom. They said they could see the butt end of a gun sticking out from under the bed and the client reached for it. In my memorandum, I explained why the officers had no valid consent to search at all, making their view of the gun Unconstitutional, seen from an illegal vantage point. I wrote:
And while a good faith exception to consent is noted, the Court immediately defines the contours of that exception:
“Under Illinois v. Rodriguez, even if the third party did not have the requisite relationship to the premises, and therefore lacked the authority to give a valid consent, official reliance on his consent may validate the search if it was reasonable for the officers to believe he had the requisite relationship.” 497 U.S. at 179, 110 S.Ct. at 2796. “Rodriguez, however, validates only searches that are based on a reasonable mistake as to the facts, not those based on an erroneous legal conclusion drawn from the known facts.” Id., 415 U.S. at 171 n. 7, 94 S.Ct. 993 n. 7.
Here the mistake of fact was hardly reasonable; the facts [the police officer] cited in his attempt to call a leased apartment ‘vacant’, such as the garbage not being taken out, were unreasonable especially in light of the fact that he testified that he looked up [the address] and found it was leased to [the tenant].
When it came time for the Mapp hearing, the client was granted standing to complain about the unwarranted search. He fell under the “well established overnight guest exception” the judge said—an exception which sometimes treats people differently than it would if they were in an apartment as mere transient guests visiting. (For those transient guests, standing is impossible to obtain. Standing is the right to complain about a Fourth Amendment violation.).
And then, as I began to believe this client had a shot to walk away from the mess he was in because he lived in a country that demands due process before liberty is lost, he lost the suppression hearing. And guess what the judge used to bolster his finding that the police made a reasonable mistake of fact? Rodriguez.
The take away for me is that in practice, I have to be sparing when I bring up the other side’s potential argument, and stop trying to hit the balloon preemptively with a nailgun. Let the other side do their own work. They may show up to the party with entirely different balloons.