Search and seizure – Effective assistance

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Where a defendant, whose motion to suppress evidence found by the police was denied, now moves for a new trial based on his assertion that his counsel was ineffective in not seeking interlocutory review of the order denying the suppression motion, the motion for a new trial must be denied because of the defendant’s inability to show that an application for interlocutory review would have been successful and that counsel’s failure to seek such review created a substantial risk of a miscarriage of justice.

“There was more than sufficient basis from the collective testimony of the witnesses that the area was a high crime area and there had been criminal activity generated at the location and at the specific address which the officers were watching. The combination of: 1. the time of the encounter, two in the morning; 2. the fact that the defendant and his companion acknowledged that they did not live at that address; 3. that they did not have any identification; and 4. that the defendant then fled, gave the police a sufficient basis to justify a stop and seizure. When the officers tackled him and he resisted, they had more than sufficient basis to justify a pat frisk and determine whether he had a weapon.”

Commonwealth v. Bodkin (Lawyers Weekly No. 16-003-11) (8 pages) (Wexler, J.) (Lynn District Court) (Docket No. 0913CR2401) (Feb. 10, 2011).