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United States v. Maley.

No. 20-2073. D.N.M. Judge Kelly. 28 USC § 2255 Motion—Ineffective Assistance of Counsel—Fourth Amendment—Plain View—Probable Cause.

June 14, 2021

An undercover FBI agent identified defendant as a methamphetamine supplier when he observed him consummating a drug deal out of his travel trailer in New Mexico. A pickup truck was parked outside. Officers performed a background check on defendant and found that he was a convicted felon.

When officers returned several months later, the travel trailer was no longer there. Defendant was indicted, and an arrest warrant was issued. Officers found that defendant had recently applied for an Arizona ID card with a Tucson address and that he used the same address to register several vehicles. An officer located defendant’s travel trailer and pickup truck at that address, along with his wife’s double-wide trailer. The following day, officers arrived at defendant’s address to make an arrest. Defendant’s two adult sons were outside and yelled a warning. Concerned that another person was on the property, the officers first searched the double-wide trailer and then entered the travel trailer. They did not find defendant, but they observed a shotgun in plain view in the travel trailer, and subsequently located 30 other firearms that were hidden. Defendant was later apprehended in New Mexico.

Defendant was convicted in New Mexico district court of various conspiracy and drug offenses and possession of a firearm by a felon. Defendant also faced charges in Arizona based on evidence found in the travel trailer in Arizona, but in that case, his counsel filed a successful motion to suppress. Defendant then filed a 28 USC § 2255 motion, arguing that had his New Mexico counsel filed a motion to suppress, it likely would have been granted and he would not have been convicted on the felon in possession of a firearm count. The district court denied the motion and granted a certificate of appealability on whether (1) officers had probable cause to believe that defendant would be in his travel trailer when they entered it, and (2) if probable cause were lacking, whether his New Mexico counsel’s failure to file a motion to suppress constituted ineffective assistance of counsel.

The Tenth Circuit first addressed whether defendant was prejudiced by the motion denial. Here, officers found at least one gun in plain view upon their initial entrance to the travel trailer. This was sufficient to convict defendant of the felon in possession charge, so the district court properly determined that defendant was not prejudiced by his lawyer’s failure to file a suppression motion.

As to the first issue, because the officers had an arrest warrant but not a search warrant, they could enter the travel trailer only if there was reason to believe defendant was inside. Here, officers had a reasonable belief that defendant lived at the residence because it was the address on his ID card and the address where his vehicles were registered, the travel trailer was fully hooked up on-site and an agent had previously seen defendant living in it, the pickup truck was on-site, and defendant’s sons shouted a warning. Further, it was Sunday at 9 a.m., a time when officers could reasonably believe defendant would be at home. Therefore, the officers had probable cause to enter the trailer, and there is no reasonable probability that the verdict against defendant would have been different had counsel filed a motion to suppress.

Based on this ruling, the Tenth Circuit did not address whether counsel’s representation fell below an objective standard of reasonableness.

The ruling was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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