In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1777
A DRIAN T. JOHNSON,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-01146—Michael H. Mihm, Judge.
A RGUED O CTOBER 9, 2009—D ECIDED M AY 14, 2010
Before P OSNER, R OVNER, and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. Adrian T. Johnson was con-
victed of possession with intent to distribute at least
50 grams of crack cocaine in violation of 21 U.S.C.
§ 841(a)(1). He had two prior drug convictions and,
accordingly, received a mandatory life sentence under
21 U.S.C. § 841(b)(1)(A)(iii).
Johnson brought a motion in the district court to
vacate his sentence pursuant to 28 U.S.C. § 2255, which
2 No. 08-1777
the district court denied. That motion asserted that he
was denied effective assistance of counsel because his
attorney, based on a misapprehension of the law, failed to
seek suppression of the crack cocaine at trial. He also
contended that his attorney rendered ineffective
assistance in failing to challenge his initial seizure by
the police. See generally Fuller v. United States, 398 F.3d 644,
648 (7th Cir. 2005) (noting that ineffective assistance
claims may properly be brought in a § 2255 motion re-
gardless of whether they could have been pursued
on direct appeal).
I.
The incident resulting in Johnson’s arrest and conviction
took place on the night of February 22, 2006. Johnson,
driving a vehicle he borrowed from a relative, parked the
vehicle on a block in an area that was considered a high-
crime high-density area and therefore subject to en-
hanced police patrols. Two officers who were patrolling
the area observed him emerge from the car and walk
toward an apartment building. The officers testified that
he held in his hand a brown bag that appeared to con-
tain open alcohol. The officers watched as Johnson pro-
ceeded up the apartment stairs to the second floor, at
which time he knocked on a door for approximately
30 seconds. Receiving no response, Johnson then
prepared to descend the stairs, abandoning the bag and
its contents on the second floor landing. The officers
approached Johnson and ordered him to retrieve the
bag. When he did so, they confirmed that it contained a
No. 08-1777 3
bottle of beer that was approximately two-thirds full and
still cold. A check for outstanding warrants proved nega-
tive, and the officers detained Johnson to write a citation
for the alcohol violation. While writing that citation, they
ran a computer check on Johnson and retraced his steps
to the car. When Johnson protested that they need not
search the area because he had not tossed anything along
that path, Officer Edelman asked if there was anything
in the car that he should know about. Johnson re-
sponded that there was not, and Edelman then questioned
Johnson as to whether he cared if Edelman searched the
car. According to the officers, Johnson responded, “Go
ahead.” Officer Edelman stated that before entering the
vehicle he observed by flashlight what appeared to be
a bag of marijuana above the driver’s visor. Upon
entering the vehicle, he found a black stocking cap with
a plastic bag of what appeared to be a large rock of crack
cocaine inside. In addition, in the backseat he discovered
a digital scale and two boxes of plastic sandwich bags. At
that point, Johnson was becoming disruptive and the
officers subdued him and placed him under arrest. The
search of the vehicle is the basis of the ineffective assis-
tance claim before this court.
II.
Johnson argues that he was denied the effective assis-
tance of counsel when his attorney failed to file a motion
to suppress the crack cocaine based on the unconstitu-
tional search of the car. His defense counsel pursued
other pretrial motions, including a motion to suppress
4 No. 08-1777
and motion in limine aimed at keeping his alcohol posses-
sion and incriminating statements out of evidence.
Despite Johnson’s request, however, his attorney chose
not to file a motion to suppress the crack cocaine evi-
dence found in the search of the vehicle.
In order to succeed on a claim of ineffective assistance
of counsel, Johnson must demonstrate both deficient
performance and prejudice. Specifically, he must show
that defense counsel’s performance fell “outside the
wide range of professionally competent assistance” and
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466
U.S. 668, 690, 694 (1984); Allen v. Chandler, 555 F.3d 596,
600 (7th Cir. 2009); Bynum v. Lemmon, 560 F.3d 678, 685
(7th Cir. 2009). Johnson asserts that the police had no
constitutionally-valid basis to search the car, and that
a motion to suppress could have resulted in the suppres-
sion of the fruits of that search. Because that search
yielded the crack cocaine which formed the basis of the
charge and the centerpiece of the government’s case, the
decision not to seek suppression was a critical one.
A.
In analyzing the deficient performance prong of the
test, we consider whether the decision to forego a
motion to suppress was a reasonable trial strategy. Con-
duct of counsel at trial is deficient if it is unreasonable
under prevailing professional norms. Pole v. Randolph,
570 F.3d 922, 934 (7th Cir. 2009). We have repeatedly
No. 08-1777 5
recognized, however, that a decision of trial counsel
based on a misapprehension of law may constitute ob-
jectively unreasonable performance. United States v.
Spence, 450 F.3d 691, 694-695 (7th Cir. 2006); Bynum,
560 F.3d at 684-85.
In an affidavit submitted to the district court, Johnson’s
defense attorney at the original trial, Joseph M.
Borsberry, acknowledged that Johnson wanted him to
file a motion to suppress the evidence based on the
Fourth Amendment violations. He stated that he chose
not to file such a motion because
the motor vehicle in which the cocaine was found was
allegedly owned by one of Mr. Johnson’s relatives.
Since Mr. Johnson did not have an ownership interest
in the motor vehicle or a reasonable expectation of
privacy, I felt it should be a better trial strategy to
use the fact that Mr. Johnson did not own the vehicle
as an issue in trial. In my opinion there was no
Fourth Amendment violation in searching the
vehicle because of a lack of reasonable expectation
of privacy in the vehicle of another.
As the statement by Borsberry makes clear, the decision
not to file the motion to suppress was based on the belief
that Johnson lacked a reasonable expectation of privacy
in the vehicle because he was not the owner. The
district court, in denying the § 2255 motion, repeated
that proposition. The court also denied the certificate of
appealability—which we ultimately granted—as to that
and all other issues. Both Borsberry and the district
court, however, erred in assessing Johnson’s ability to
challenge the search.
6 No. 08-1777
It is well-established that a driver of a borrowed vehicle
may establish a reasonable expectation of privacy in a
vehicle even though that driver is not the owner of the
vehicle. See United States v. Garcia, 897 F.2d 1413, 1418-19
(7th Cir. 1990); United States v. Thomas, 447 F.3d 1191, 1197-
98 (9th Cir. 2006); United States v. Soto, 988 F.2d 1548, 1553
(10th Cir. 1993); United States v. Miller, 821 F.2d 546, 548-49
(11th Cir. 1987). In determining whether such a non-
owner may claim a privacy interest in a car that he is
driving, courts consider two factors: whether the driver
manifested a subjective expectation of privacy in the
area searched; and whether that expectation of privacy
is one that society would find objectively reasonable.
United States v. Amaral-Estrada, 509 F.3d 820, 826-27 (7th
Cir. 2007). Courts have repeatedly recognized the right
of a driver to assert a Fourth Amendment right to be
free from unreasonable searches of a vehicle where the
driver is operating that vehicle with the permission of
the owner. Garcia, 897 F.2d at 1418-19; Soto, 988 F.2d at
1553; Miller, 821 F.2d at 548-49; see also Thomas, 447 F.3d
at 1197-98 (holding that even a driver not listed as an
authorized driver for a rental car could nevertheless
have an expectation of privacy if given permission to
use the car by an authorized driver). In lawfully
possessing and controlling the car, the driver has the
right to exclude others which corresponds with an ex-
pectation of privacy. Similar to an owner driving the
car, the authorized driver may have an expectation of
privacy in that circumstance. The inquiry is a fact specific
one, however, because as we recognized in Amaral-Estrada,
some facts may eviscerate any implication of a subjective
No. 08-1777 7
expectation of privacy. In that case, Amaral-Estrada was
operating the car for the purpose of transporting contra-
band such as U.S. currency, and his expectation was that
others would enter the car, taking and leaving items
therein. Amaral-Estrada, 509 F.3d at 826-27. In those cir-
cumstances, there was no subjective expectation of
privacy and therefore he could not challenge the search
of the vehicle. Id.
As the driver of the vehicle borrowed from his relative,
Johnson could have sought to establish that he had a
reasonable expectation of privacy in the vehicle and that
the search violated the Fourth Amendment. The facts
relating to this issue are of course scarce in the record,
because it was never explored at trial. Nevertheless, those
facts that are present do nothing to cast doubt on the
existence of that reasonable expectation of privacy and in
fact support a finding that Johnson exercised possession
and control of the vehicle in a manner establishing
an objectively reasonable expectation of privacy. The
evidence indicates that Johnson borrowed the vehicle
from a relative and that he was the driver and sole occu-
pant of the vehicle during the relevant time period. There
is no indication that he opened the vehicle to general
access by other individuals such as would defeat that
expectation of privacy.
An evidentiary hearing on the issue would make the
issue clear. For our purposes, it is enough that based on a
misapprehension of the applicable law, his attorney
chose not to file a motion that could have been disposi-
tive of the case against Johnson.
8 No. 08-1777
Borsberry identified a related reason for the decision
in his affidavit, stating that he believed that it was a
better defense at trial for Johnson to claim a lack of knowl-
edge that the drugs were in the vehicle. Borsberry also
stated that in a motion to suppress the court would have
to make a credibility determination between the police
and Johnson, and that Johnson “would have a better
chance with a jury trial on the factual issues than with
a judge on the legal issues.” The government takes up
this mantra, arguing that the decision not to file the
motion was a tactical one, involving a choice between
two inconsistent positions: the assertion of a privacy
interest in the car and its contents versus the claim that
Johnson had no knowledge of the car’s contents and no
desire to protect them from anyone. According to the
government, that is an objectively reasonable basis for
refusing to file the motion, and it does not matter whether
that was defense counsel’s subjective reasoning.
There are two problems with that line of reasoning. First,
it is premised on a false dilemma because there is no
inherent conflict between a trial defense based on his
lack of knowledge that the drugs were in the car, and
a motion to suppress contending that the search violated
his reasonable expectation of privacy in the vehicle. It is
simply inconceivable that in order to assert a claim of a
reasonable expectation of privacy in an area, a defendant
needs to demonstrate complete knowledge of all items
within that area. Such a premise would eviscerate any
reasonable expectation of privacy in a home, as it would
vanish if any items were found in the home of which
the defendant was unaware. The test is whether the
No. 08-1777 9
defendant had a subjective expectation of privacy in the
vehicle which is objectively reasonable. See Amaral-Estrada,
509 F.3d at 826-27; Garcia, 897 F.2d at 1418-19.
At an evidentiary hearing, Johnson could have estab-
lished that he had authorized possession of the vehicle
and an intent to exclude others from it. We have found
that such an objectively reasonable expectation can be
established by the driver of a borrowed car, and
have not required a showing that the authorized driver
be capable of accurately inventorying the vehicle’s con-
tents. Johnson could argue that he possessed such an
expectation of privacy even though he was unaware
that the drugs had been concealed within the car. There-
fore, Borsberry was not required to choose between
his preferred trial strategy and a motion to sup-
press—both options could have been fully pursued with-
out one adversely impacting the other.
In part, Borsberry’s reluctance to pursue the motion
appears to be based on a misunderstanding of another
legal proposition. Borsberry was apprehensive that the
court’s credibility determination in a motion to suppress
would adversely impact Johnson’s defense in a jury trial.
In short, he was concerned with the impact that testi-
mony in the motion to suppress would have on the trial.
The Supreme Court in Simmons v. United States, 390
U.S. 377, 394 (1968), however, made clear that “when a
defendant testifies in support of a motion to suppress
evidence on Fourth Amendment grounds, his testimony
may not thereafter be admitted against him at trial on
the issue of guilt unless he makes no objection.” See also
10 No. 08-1777
Owens v. United States, 387 F.3d 607, 608-09 (7th Cir. 2004).
Accordingly, any testimony by Johnson in support of a
motion to suppress could not have been introduced
against him at trial, and that concern was not a proper
basis on which to forego the motion to suppress.
Because the decision not to pursue the Fourth Amend-
ment challenge in a motion to suppress was based upon
a misunderstanding of the applicable law and not based
on a reasonable trial strategy, Johnson has established
a genuine issue of material fact as to whether his trial
counsel’s performance was deficient under the Sixth
Amendment.
B.
The remaining issue in the ineffective assistance claim
is whether Johnson was prejudiced by that deficient
performance. It is clear that a successful motion to sup-
press would have destroyed the case against Johnson.
The issue, however, is whether that motion would have
been successful—or more properly, whether there is a
reasonable probability that, if counsel had pursued the
motion, the result of the criminal case would have been
different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome. Strickland,
466 U.S. at 694. The government maintains that even if
Johnson had a protectable interest in the vehicle, the
motion could not have been successful because he con-
sented to the search. At this stage of the process, however,
we cannot assume that Johnson gave such consent. Johnson
asserts that he did not consent to the search, and an
No. 08-1777 11
evidentiary hearing is necessary to resolve that issue. If
the district court determines that he did not give such
consent, and that he established a reasonable expectation
of privacy in the vehicle, then the failure to file a motion
to suppress was prejudicial unless the government can
establish an independent constitutional basis for the
search.
Even if the district court determines on remand that
Johnson gave consent, Johnson asserts that the initial
seizure was invalid and therefore that any consent ob-
tained as a result of that seizure is invalid as well. Again,
the testimony relevant to this issue is sparse because it
was not pursued at trial and the district court did not
conduct an evidentiary hearing on the ineffective assis-
tance claim. The officers stated that they saw Johnson
carrying what appeared to be open alcohol in a brown
bag. There is no indication as to what caused them to
believe that the bag contained alcohol, nor is there evi-
dence as to why they believed that it was open. It is not
hard to imagine facts that could lead an officer to reason-
ably suspect that a brown bag in fact contained open
alcohol, but any efforts to determine whether the
officers possessed a reasonable suspicion that he was
carrying open alcohol would be rank speculation at this
point.
III.
Therefore, an evidentiary hearing is necessary to
resolve the factual issues that are critical to the analysis
of the ineffective assistance claim. The decision of the
12 No. 08-1777
district court is V ACATED and the case R EMANDED for
further proceedings consistent with this opinion. Circuit
Rule 36 shall apply on remand.
5-14-10