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Counsel – Ineffective Assistance – Deficient Performance: Failure to File Suppression Motion

State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta

Issue/Holding: Counsel was not ineffective for failing to file a suppression motion based on his assessment that the arrest was supported by probable cause; “the highly incriminating evidence against Cash known” to the authorities before the arrest in fact supported probable cause, ¶¶24-25.

What if there had been an arguable basis for the suppression and no non-tactical basis for failing to file it? Would Cash’s burden have been to show a successful outcome to the motion? Yes, if Cash had taken the case to trial: “To satisfy the Strickland test where the asserted attorney error is a defaulted Fourth Amendment claim, a defendant must first prove that the Fourth Amendment claim is meritorious,” U.S. v. Stewart, 7th Cir. No. 03-2377, 11/9/04. Same, re: suppression of eyewitness ID, Thomas v. Varner, 3rd Cir No. 04-2856, 1/18/06 (“Thomas must show that he would likely have prevailed on the suppression motion and that, having prevailed, there is a reasonable likelihood that he would not have been convicted”). But where the conviction is plea-based, there is authority for a different showing, that had a reasonable person known about the grounds for suppression he or she wold have been “plausibly motivated” not to plead guilty, U.S. v. McTiernan, 9th Cir No. 07-50430, 10/21/08.

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