E.D. Michigan rejects 2255 Petition based on ineffective assistance of counsel.

In this case, the Defendant, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2255 to vacate his conviction. In this case, the Defendant’s arrest was enabled through the use of cell-site location information. The main thrust of the Petition was that the Defendant was denied effective assistance of counsel where counsel did successfully suppress evidence stemming from his arrest.

The case started with a heroin overdose where the woman’s cell phone had the defendant’s number in the phone. Police obtained an order from a Michigan State Court judge authorizing T-Mobile to generate emails notifying them of the location of the Defendant’s phone. The court order relied on the federal Pen Register or Trap and Trace Device statute (18 U.S.C. §§ 3123-24) as well as the Stored Communication Act (18 U.S.C. § 2703(d)).

In making his ineffective assistance claim, he argued that the failure to move to suppress the cell-site location evidence when the District Court was making a query of trial counsel about the “silver platter” doctrine was a deficiency in counsel’s performance.

The doctrine is a “long-rejected loop-hole in the exclusionary rule which provided that ‘it is not a search by a federal official [and not subject to the exclusionary rule] if evidence secured by state authorities is turned over to the federal authorities on a silver platter.’ Lustig v. United States, 338 U.S. 74, 78-79, 69 S. Ct. 1372, 93 L. Ed. 1819 (1949) (plurality opinion).”

Before ruling on the good faith exception, the Court noted that the doctrine is absolutely irrelevant to the Fourth Amendment issues in his case. The Court held that the Motion to Suppress would have been denied if it was made based on the good faith exception, citing Davis v. United States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011).

“What mattered for purposes of the suppression ruling was not whether the officers’ conduct was ultimately proven legal or illegal, but rather whether their conduct comported with what they had reason to believe the law was at the time they executed their search. See, e.g., United States v. Williams, 2018 U.S. Dist. LEXIS 129639, 2008 WL 3659585 (Aug. 2, 2018)” (See September 9 blog post).

The case is McConico v. United States, 2019 U.S. Dist. LEXIS 11663, 2019 WL 316539 (E.D. Michigan) January 24, 2019.

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