i have a public defender and dont feel he did well at the hearing. i was a passenger in a vehicle that got stopped and the driver saw the illegal search but was not at the hearing to testify. the officer stated he could tell what was in my pocket from the outline of it (it was a hypodermic needle) and that he arrested me and then took it out but he actually went through my pockets first and then arrested me, which the driver could see. what are my options if i lose the hearing and the evidence is not suppressed? i am charged with possession of the needle as well as 2 counts of poss. of a controlled substance as the officer then found drugs in my wallet. officer testimony was full of false statements but my lawyer, in my opinion, failed to properly question the officer
First, if you lost the Mapp hearing, you cannot challenge the search at trial. The only way to do what you want would POSSIBLY be to hire a new attorney and have him move the Court for a new hearing. There's not much chance of getting that done, however, as most Judges will hold that questions of ineffective assistance of counsel are to be brought up on appeal. That is not to say it is 100% impossible, but it is a very hard uphill fight.
If you're unhappy with your public defender, you can ask the Court to assign you a new lawyer though you will have to give good reasons. You have an absolute right to hire your own attorney.
One thing you should note, however, is that far more suppression hearings are lost than won - even though a "fair" assessment of the facts would seem to indicate that any given hearing should have been successful. It's sort of the nature of the beast (the historical and socio-legal issues of this are far too lengthy to discuss here). But, again, having said that if you are unhappy with your assigned lawyer then you should consider hiring someone else.
No, if you lose the mapp hearing and the evidence and search are admissible then you cannot challenge the search at trial. That would render the whole hearing pointless.
You can argue it, but the evidence will be admitted before the jury and they do not care if it was an illegal search. However there is a very slim possibility that additional facts may come out at trial which might make the judge overrule his previous decision and then suppress and dismiss.
Any response I provide is meant as a general view on the subject and is no way intended to be specific legal advice to any individual. If you wish specific advice, you should hire and consult with an attorney of your choosing.
Technically yes, but it is a very long shot because the jury will hear the evidence that was suppressed, and they likely won't care it should have been suppressed. The whole point of Mapp is so jury does NOT hear the evidence. If they hear it they probably won't care if it was an illegal search. Good luck
This answer is provided for informational purposes only and does not constitute legal advice. You should not take action based upon this information without consulting legal counsel. This answer is not intended to create, and does not create, an attorney-client relationship. PLEASE REMEMBER: All claims and legal matters have statutes of limitations and/or other important time periods that apply to them. This means that you must take action on all claims or legal matters within the required time period(s) or your claims could be barred by the statute of limitations or dismissed. Contact our office or another competent attorney immediately to discuss the particular facts of any claim or legal issue you might have in order to learn what time periods apply to your particular situation.
Once a search and seizure issue is decided at a Mapp hearing, it cannot be re-litigated at trial. If you are unhappy with your current attorney, you can hire a new one, who can argue to the judge for a new Mapp hearing. If you don't do that, you are stuck with the evidence being admissible at trial.
I am a criminal defense and DWI/DUI attorney practicing in Westchester and the NYC Metro area. My answers are intended for general informational purposes only, based upon the limited information provided in the questions, and do not establish any attorney-client relationship. All readers of my answers are advised to contact an attorney in order to discuss their questions in full and get full answers. Thank you.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline