A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Thursday, August 14, 2008

Training Prosecutors: Garbage In, Garbage Out

It happens very rarely, a prosecutor reads a motion to suppress in a small drug case or misdemeanor, finds it to be well taken, and agrees to dismiss the case. And no, I'm not talking about the routine b.s. motions that are not well taken, but debatable.

I'm talking about the one where the officer basically says he had a "hunch" the client was selling or possessing drugs, and conducted a search. The ones that law students look at in criminal law class and know right away that the Fourth Amendment has been excoriated.

Then yesterday I realized why this rarely happens, and again, I'm talking about dead-bang obvious motions, so spare me the "most defense motions are worthless......" argument.

Simple facts: some unidentified person tells the officer my client is smoking pot. Officer sees my client driving through parking lot normally, does not see him smoking pot. Pulls him over, finds pot. Pretty obvious. Differing minds could not disagree on these set of facts.

The prosecutor told me incredulously "we would never dismiss a case because a motion was well taken."

Now she didn't learn this in school, she was trained to conduct herself this way. She was told: "let the judge decide." Senior prosecutors will deny this, but then tell me, where did she get her training? Where did she learn that her position is an effective use of resources?

I know the answer, she was seeing if I'd take a plea.

No need.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


  1. It's one of the useful weapon's of criminal defense, file a motion and be prepared to argue the merits. Too often, some people fail to read between the lines. Somebody told me ... but no facts to support that assertion and most of the time somebody is not even named. Smarter cops don't even put it in the report. The write out ... saw the driver weaving and pulled him over. [As if any pretense for a traffic stop is automatically grounds to conduct a search ... leaving out the part about anonymous ex-wife told me he was doing drugs --- even though there is a pending divorce-custody battle] Too often the accused is presumed guilty rather than the presumption of innocence that they are entitled to under the law.
    Sincerely, http://www.glenrgraham.com
    Glen R. Graham, Tulsa Criminal Attorney, Tulsa, Oklahoma

  2. Anonymous10:39 AM

    Don't forget the completely meritorious motion, that is well supported by the facts and completely covered by prior decisions, and that would utterly destroy the prosecutions case, but which the prosecutor still argues against because he/she knows the judge will never grant a motion that would castrate a prosecution pre-trial.

    Its cool though, I enjoy writ work.

    I just feel bad for my clients having to sit around an extra 6-9 months till their case gets rightfully decided.

  3. Anonymous4:46 PM

    Recently had a client arrested and charged with disorderly conduct for saying "fuck you, motherfucker" to a Cooper City cop who came to her door looking for her son. That was it; no conduct more egregious than cursing at the cop. Sent a memo to the ASA (who I'll not name, lest she get fired for having done the right thing) explaining that under the law, such comments (while probably not the brightest idea in the world) are protected by the 1st Amendment and do not meet the elements of disorderly conduct. Although it took about a month-and-a-half, and probably a dozen follow-up calls and emails before my memo got read, the prosecutor actually agreed and nolle prosse'd the case!! Probably a one-in-a-thousand situation, but I thanked her on the record in open court for having the courage to do the right thing.

  4. Just give that young prosecutor time. He'll learn to never do it again.