Greg Lowery, the current Wise County Attorney and odds on favorite to become the next District Attorney, and I have been having a debate for the last few months over the following issue: Should a prosecutor refuse to pursue a case if the cops obtained the critical evidence in violation of the law.
Today we used this scenario to make this as simple and clean as possible: Say a trooper does not have a reason to stop a car on Highway 287 but does so anyway. Pick any reason you want, he didn't like the way the driver looked, the driver's race, the make of the car, or the color of the car. Pick a reason. It doesn't matter because we'll stipulate it was an illegal stop. He then searches the driver of the car, again without reason, and finds marijuana. The driver readily admits the marijuana is his. So there you have it: (1) No question of an illegal search and seizure by the cop, and (2) No question the driver was in violation of our Possession of Marijuana laws.
We know the following would happen under the above facts (assume, once again, the facts are not in dispute): If the defendant, either alone or through his lawyer, files a Motion to Suppress the marijuana, it will be granted by the judge. Just like a law prohibiting marijuana use, we have another law that says any evidence seized in violation of the law cannot be used and must be suppressed. In a marijuana possession case where such a Motion is granted, there would be nothing left for the prosecutor to do but to dismiss the case.
Now here's the kicker: If the Defendant does not file the Motion to Suppress and never raises the issue at his trial, there is nothing that requires the judge to step in on his own and stop the case. The Defendant must make the Motion or file the appropriate objection. If he doesn't, he has given up or "waived" the issue. If he is convicted either by a guilty plea or even by a jury, he can't even raise it for the first time on appeal. The appellate court will affirm the conviction and hold the issue has been waived.
So here's the issue: We have an obviously guilty Defendant. We have evidence that was unquestionably seized in violation of the law. If you are the prosecutor, whose obligation is "not to convict but to see that justice is done", do you file the case when you see an obvious search and seizure violation? Do you hope the Defendant or his lawyer never raise the issue? Or do you consider your obligation to seek "justice" to mean that an illegal stop and search of a defendant is just as important to condemn as the violation of marijuana possession and kill the case when it comes across your desk?
Have at it folks. (But one request: Try to keep away from negative comments about particular individuals in the Wise County system whether they be prosecutors, cops, judges or lawyers. I have to work with these folks. I'm not that big of a fool.)
at 8:23 PM