Can I sue my public defender or make any claim that she has violated my 4th amendment rights if she is incompetent and allowed a search without my consent?

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Can I sue my public defender or make any claim that she has violated my 4th amendment rights if she is incompetent and allowed a search without my consent?

I am charged with a felony gun possession. I have a Public Defender. I have claimed a 1385.5 violation as my residence has been searched 3 times by police without a search warrant. In fact I was arrested in my home without a search warrant or warrant for arrest and prior to any investigation or even any evidence of any crime. My PD has not only been entirely ineffective but she recently “ordered” a search of the personal computer that police seized from me. She did this along with the prosecutor without my consent when I asked to have it returned during plea negotiations. I go to trial in 4 days (or I can take a deal tomorrow).

Asked on June 25, 2015 under Criminal Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

If your PD allowed the search, the search will most likely be upheld in court--at least in trial court--because the prosecutor and/or police reasonably relied upon your attorney's authorization, and she is allowed to speak on your behalf in matters like this. That's not to say that you can't make a motion to exclude the evidence, and it would be worthwhile trying, but you need to bear in mind that there's a good chance the judge will allow it.

If the evidence from this search is material (critical) to you being convicted (if you are convicted), it may be possible to appeal based on "ineffective assistance of counsel": the lawyer made a bad decision, and did so without consulting her client.

You also may have grounds for a malpractice claim against her, again for making an objectively bad decision and, worse, doing so without your consent.


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