The Campaign For DA


Green On "Search And Seizure"

Edit: Actual courtroom Someone asked me about my lost Motion to Suppress hearing, so here's a rundown. (And let me know if this crap is boring or entertaining.) I have a client charged with possession of marijuana less than two ounces - a Class B misdemeanor. I filed a Motion to Suppress in the county court at law here in Decatur (where the case is pending) because I thought there was a chance that he was illegally detained. Here is the basic law: The cops cannot violate the constitution or a statute when they detain someone. If they do so, any evidence that is found as a result of the illegal detention cannot be used by the prosecutor at his trial. This is known as the "exclusionary rule" (which the Supreme Court has indicated may not be long for this world.) When, for example, the evidence that is suppressed is, say, marijuana, it makes it impossible for the State to prosecute someone for, say, marijuana possession. So we have a hearing. The players are me, County Attorney Greg Lowery representing the State, and Judge Melton Cude presiding. (Amberly is the court reporter who will simply make a face at me every time I say something crazy.) So the following facts came out in the public hearing. My client is sitting in his car in the parking lot of Red's in Bridgeport. For the uninitiated, Red's is one of the few places you can find a beer in a bar in Bridgeport. It is also a place that the cops constantly patrol because they want to jack with folks who visit Red's. (Sorry, I digressed.) The cops, in this case, drive by Red's parking lot and see my client sitting in his car. Horror of horrors, my client looks down and away from the officers' stare. This, one of the cops will testify, causes him to wonder if my client might be sick or otherwise in distress. (Kill me.) So they do a U-turn and pull into the parking lot to "check on him." (I did not realize the cops in Bridgeport were so sensitive. ) My client, as soon as the cops drive by, moves his car a few feet into a parking slot. He gets out of his car and then begins walking normally (not hurriedly) to the side door of Red's. The cops pull up. One of them jumps out right behind my client's bumper and yells, "Come here"at my client who is probably 15 feet away. My client stops and (allegedly) a small amount of marijuana was later found on him. Here is the issue: The cops have absolutely no right to detain a citizen simply because he looks down when the cops look at him. Nor do they have the right to stop someone who then gets out of his car and heads towards a bar. If those are all the facts, then I'm going to win the Motion to Suppress. It is the "my client was jacked with by The Man" defense. But wait. Apparently there is more. The cop testifies that as soon as he got out of the car he immediately smelled the "strong odor"of marijuana and one second later he tells my client to "come here." I asked him if he intended to stop my client even had he not smelled the marijuana. His answer was "yes, just to make sure he was OK." So this is what it boils down to: If the facts are (1) cop gets out of the car, (2) yells at my client to "come here", and (3) then smells marijuana, we have an illegal detention. He stopped my client for no valid reason and the fact that he smelled marijuana after the fact won't save the illegal detention. But if the facts are (1) cop gets out of car, (2) he smells marijuana, and (3) he then tells my client to "come here" THEN we have a valid detention because the cop has a "reasonable suspicion" that my client might be associated with the marijuana smell. But, as stated above, the cop says that he smelled the odor of marijuana before he said "come here." So although he was in the act of making an illegal detention, his testimony of the odor of alcohol makes the detention legal. The judge overruled my Motion and ruled that the State could use the marijuana. What else is he supposed to do? Hey, these facts are fishy. Something, pardon the pun, doesn't smell right. But the only way I win that Motion would be for the judge to essentially say, "I don't believe that crap about the odor of marijuana." That, dear reader, is never going to happen. Do I believe the cop? I'm skeptical but he was pretty smooth and seemed earnest. Another fear most people in my position would worry about is that the cop was coached by the prosecutor before the hearing. You know, a little pre-gram prep of, "Listen, cop, if you were to have smelled marijuana before you said anything to the defendant, then you're home free." Trust me, prosecutors do this all the time. But, trust me again, the prosecutor in this case, Greg Lowery, wouldn't do this. There have been times when he has met with a cop behind closed doors before a Motion to Suppress and then walked out and said, "After talking to the cop, I agree with your motion." So, I'm stuck with the judge's ruling. There is no reason to appeal it because the appellate court would say Judge Cude has every right to believe the cop. The only other option is having a trial where, amazingly, a jury could be asked, in addition to my client's guilt or innocence, whether they believe there was an illegal detention. That, in Wise County, is one dicey proposition. But probably the most disturbing thing is that all this time and energy is wasted on freakin' marijuana possession. [As for comments, don't bad mouth Judge Cude or Greg Lowery, I'm not an idiot - I'm not going to post them. Everything else is probably fair game.]