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Seventh Circuit Denies Motion to Suppress Waiver of Waiver

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By Robyn Hagan Cain on September 13, 2011 4:05 PM

Fontez Combs was a peddler of wares in Southern Illinois. A noble pursuit, except his wares were cocaine, heroin, and marijuana.

Combs, the subject of a Drug Enforcement Administration (DEA) investigation, was arrested after a DEA task force executed a federal search warrant on his home and recovered drugs, ammunition, and a gun.

Combs's defense lawyer, who replaced an appointed federal public defender, requested and received a continuance to review the search warrant in the case. Combs subsequently instructed the lawyer to file a motion to suppress the evidence in his case based on perceived discrepancies between content of DEA surveillance videos and the search warrant affidavit.

The lawyer missed the deadline to file the motion … twice. (The trial court actually granted two continuances). Counsel never sought leave to file out of time, and when, over two months after the continuance expired, the lawyer filed the motion to suppress, the motion was denied.

The trial court emphasized that it gave defense counsel “ample opportunity, subtle hints, and finally a blunt invitation to seek an extension of the motion deadline,” and yet counsel had done nothing. The court reasoned that it had done everything possible “to illuminate the path to properly filing a suppression motion” but could not “practice law for counsel” and, thus, given the passage of time and looming trial date, would not extend the motions deadline or the trial date.

The lawyer admitted that he had dropped the ball and begged that Combs should not suffer for his mistakes. The court, however, refused to grant the continuance. Combs, in turn, entered an unconditional guilty plea, and did not reserve the right to challenge the denial of the motion to suppress on appeal.

Combs appealed the trial court’s refusal to let him file an untimely motion to suppress to the Seventh Circuit Court of Appeals, and argued that the government shared the blame for the filing delay.

So did the government share the blame?

The Seventh Circuit claims the question is irrelevant because a guilty plea “forecloses independent inquiry” into pre-plea claims. Combs, who clearly wasted his money hiring a private defense attorney, waived his right to appeal all non-jurisdictional defects arising before the plea - including the denial of the motion to suppress - when he entered an unconditional guilty plea.

Combs almost caught a lucky break, because the government neglected to argue in its brief that he was precluded from asserting pre-plea claims. When the Seventh Circuit Court of Appeals raised the issue at arguments, the government even conceded that it may have “waived the waiver” of Combs’s claims.

The court, however, would not accept the waiver of the waiver. The Seventh Circuit ruled that even if the government can forego a defense—whether by design or neglect— the court is not obligated to accept the government’s waiver.

Two continuances? Government errors? It’s almost as if the universe wanted to consider Combs’s motion to suppress. Do you think that the Seventh Circuit Court of Appeals should have heard the appeal after the government’s waiver-of-waiver?

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