In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1576
D ERRICK G ARDNER,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 577—Ronald A. Guzmán, Judge.
A RGUED F EBRUARY 29, 2012—D ECIDED M AY 25, 2012
Before B AUER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. A federal jury convicted
Derrick Gardner of possession of a firearm by a felon,
prohibited by 18 U.S.C. § 922(g)(1), after police frisked
him and discovered a pistol inside his coat pocket.
Gardner insisted that the police had planted the gun
on him; this led his lawyer to believe that he could not
argue that the firearm was the fruit of a suspicionless
search. In this collateral proceeding under 28 U.S.C. § 2255,
2 No. 10-1576
Gardner argues that his trial counsel rendered ineffec-
tive assistance in two respects: (1) by refusing to move
to suppress the firearm as the product of an unreasonable
search; and (2) by not explaining to Gardner that his
testimony at a suppression hearing could not be used at
trial as evidence of his guilt. See Simmons v. United
States, 390 U.S. 377, 394 (1968). The parties agree that if
the district court incorrectly determined that counsel’s
performance was adequate, an evidentiary hearing
would be necessary to determine prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
We reject Gardner’s Simmons argument, but we agree
with his first point. Gardner’s insistence that the police
planted the gun on him neither justified nor compelled
counsel to refrain from challenging the search that pro-
duced the weapon. We thus reverse the district court’s
decision and remand for the court to determine whether
counsel’s failure to move to suppress the weapon preju-
diced Gardner.
I
In October 2002 two police officers responded to a radio
dispatch reporting an “assault in progress” by a “man with
a gun” at unit 407 of a Chicago apartment building.
According to the officers’ testimony at trial, when they
arrived they saw Gardner just outside an entrance to the
building, about 50 feet from their car. Gardner approached
them, and one officer asked him where he was coming
from. He responded “407” and voluntarily placed his
hands on the squad car for a pat-down search. The
No. 10-1576 3
officers quickly found a nine-millimeter pistol in his
jacket pocket and arrested him.
The account that Gardner eventually gave of the en-
counter bore no resemblance to that of the officers. He
flatly denied that he offered to be searched. Instead, he
said, he was “minding his own business” outside of the
apartment building when the officers approached him
and ordered him to submit to a search. In addition,
Gardner “dispute[d] that he was actually carrying a
gun, or that the officer retrieved a gun from his person.”
What Gardner could not deny, however, was the fact
that he had several prior felony convictions at the time
of the encounter when he was allegedly carrying the
gun. This led to his indictment on one count of possession
of a firearm by a felon. 18 U.S.C. § 922(g)(1). Gardner
wanted to challenge the search that produced the gun, but
his first appointed counsel refused to file a motion to
suppress. Frustrated, Gardner himself filed a pro se
motion that sought to suppress “all evidence and state-
ments” stemming from the frisk. According to Gardner,
who is African-American, the officers knew from the
radio dispatch that the assailant was a black male
weighing 165 pounds and with a height of 5' 7". Because
Gardner weighs 225 pounds and is 6' 2", he argued in
his pro se submission that the police lacked reasonable
suspicion to detain and frisk him under Terry v. Ohio,
392 U.S. 1 (1968). Gardner’s counsel believed that
Gardner’s motion could not succeed unless Gardner
was prepared to admit under oath that he had
possessed the seized gun. Because of this conflict,
4 No. 10-1576
counsel moved to withdraw. The district court granted
the motion, struck Gardner’s pro se motion, and appointed
Gardner new counsel.
New counsel also refused to move to suppress the
gun, but he did not try to withdraw. As a result, Gardner
accused him of providing ineffective assistance and
asked the court to dismiss him, but the court refused. The
trial judge later stated at a pretrial conference that “you
cannot file a motion to suppress an item taken from
you while at the same time denying that the item was
taken from you. It’s just that simple . . . . And two
attorneys have told you that.” Later at the pretrial con-
ference, Gardner reiterated that he was not carrying a
gun when the police searched him, saying “I ain’t never
seen the weapon.”
After a two-day trial at which the defense called no
witnesses, Gardner was convicted. Before sentencing,
he filed a pro se motion for a new trial in which he
argued that the court had never properly ruled on his
motion to suppress. At sentencing the prosecutor re-
sponded, without disagreement from Gardner’s counsel,
that if Gardner did “not have a possessory interest in the
firearm, then he has no Fourth Amendment interests to
vindicate.” Counsel added that he had repeatedly dis-
cussed “this same issue” with Gardner, to no avail. The
court denied Gardner’s motion for several reasons: the
motion had not been signed, filed by counsel, or served
upon the prosecution; and Gardner’s denial of possession
divested him of “standing.”
Following a successful appeal based on United States v.
Paladino, 401 F.3d 471, 483-85 (7th Cir. 2005), that resulted
No. 10-1576 5
in a reduction of his prison term to 15 years, Gardner
moved under § 2255 to vacate his conviction. He argued
that his lawyer’s refusal to file a suppression motion
constituted ineffective assistance because it was based
on the mistaken belief that the gun could not be sup-
pressed as long as Gardner disputed possession. This
was wrong, Gardner argued, because the police claimed
to have found the gun during a search of his pocket, over
which he had an expectation of privacy. And that ex-
pectation of privacy, Gardner continued, gave him
grounds to challenge the search regardless of whether
he admitted or denied possession of the gun.
In an affidavit attached to the § 2255 motion, Gardner
also acknowledged for the first time that the officers
did recover a gun from his pocket. He explained that
he had contested possession in his motion to suppress
only because he had believed that his assertions at a sup-
pression hearing had to remain consistent with his not-
guilty plea or they would be used against him at trial.
He had not known otherwise, Gardner said, because
counsel had not advised him of the rule in Simmons,
390 U.S. at 394. Gardner also reiterated in the affidavit
that he never told the officers that he had visited apart-
ment 407 or volunteered for a pat-down; instead, he
elaborated, an officer ran up to him and forced him to
the squad car for the pat-down search. The government’s
response included an affidavit from Gardner’s second
counsel, who said that he did not recall advising Gardner
of the Simmons rule, but that he did remember telling
Gardner that if he testified falsely at any hearing or at
trial, his guidelines imprisonment range could be in-
creased by two levels.
6 No. 10-1576
The district court denied the § 2255 motion. It ruled
that counsel was not ineffective for failing to move to
suppress because Gardner’s position before trial that
the police had planted a gun on him made any effort to
suppress the gun a “nonstarter.” The court then deter-
mined that counsel was not ineffective for failing to
mention the Simmons rule because Gardner never told
counsel that he had in fact possessed the gun. Without
an assertion that Gardner was prepared to admit posses-
sion to his lawyer, the court reasoned, the lawyer could
not be faulted for failing to advise Gardner that such
an admission could be made at a suppression hearing
without fear that the admission would then be usable
at trial as evidence of his guilt.
We issued a certificate of appealability on the
question whether Gardner “received ineffective assis-
tance when his trial counsel refused to file a motion to
suppress on his behalf and did not explain to Gardner
that any testimony he provided at a suppression
hearing could not be used against him at trial.”
II
Within the general issue of the effectiveness of
counsel, Gardner focuses on two instances of deficient
performance: first, counsel’s refusal to move to suppress
the gun that the police allegedly extracted from his pocket,
and second, counsel’s failure to advise Gardner of the
Simmons rule. The government primarily addresses the
second issue and takes the position that the first is
outside the scope of the certificate. We reject the latter
No. 10-1576 7
contention. The certificate of appealability itself refers
to two potential sources of incompetence—the refusal to
file a motion and failure to render Simmons advice—not
one. In addition, a certificate based on ineffective
assistance of counsel brings up for appellate review all
actions of counsel that the petitioner addressed in the
district court. Stevens v. McBride, 489 F.3d 883, 894 (7th
Cir. 2007) (citing Peoples v. United States, 403 F.3d 844,
848 (7th Cir. 2005)). The government does not contest
that Gardner raised both grounds of ineffective assis-
tance in his § 2255 motion, and so both are properly
before us.
We begin with Gardner’s Simmons argument, which
we conclude does not support a finding of deficient
performance. Gardner argues that competent counsel
would have surmised that he denied possession for the
sole reason that he did not know that Simmons prevents
the government from using admissions received at a
suppression hearing as evidence of guilt at trial. Gardner
urges that the right created in Simmons has meaning
only if defendants are aware of it, and that lay de-
fendants will not have the necessary knowledge
unless the lawyer discusses the point. But these argu-
ments assume a duty to discuss Simmons even when
counsel has no reason to disbelieve a client’s denial of
possession. Gardner does not point to any evidence in
the record contradicting the district court’s finding that
Gardner himself did not tell counsel that he possessed
the gun, and so counsel had no reason to delve into a
series of “what if’s” based on hypothetical possession.
Although a savvy criminal defense lawyer might well
8 No. 10-1576
question a client’s denial of possession in this type of
proceeding, we are not prepared to hold that a competent
lawyer must always assume that her clients lie when
they deny possession. See Emmett v. Kelly, 474 F.3d 154,
168 (4th Cir. 2007) (ruling that a competent defense
counsel need not “presume that his client . . . is being
deliberately misleading” because otherwise counsel
would be in “an impossible position” of being “unable to
trust the word of the client . . . .”); United States v. Ausmus,
774 F.2d 722, 727 (6th Cir. 1985) (“Professional standards
do not require counsel to disbelieve a client and check
with other sources unless counsel has a basis for such
disbelief.”).
We now return to Gardner’s first issue—whether coun-
sel rendered constitutionally deficient performance
when, relying on a misunderstanding of the law, he re-
fused to move to suppress the results of Gardner’s frisk.
See Johnson v. United States, 604 F.3d 1016, 1019-21 (7th Cir.
2010); Bynum v. Lemmon, 560 F.3d 678, 684-85 (7th
Cir. 2009); United States v. Spence, 450 F.3d 691, 694-95
(7th Cir. 2006). Gardner’s attorneys, the prosecutor, and
even the district court all believed that he had to admit
to actual possession of the gun to challenge its seizure.
Yet no one cited a case that supports this principle. The
district court referred to United States v. Colón Osorio, 360
F.3d 48, 52 (1st Cir. 2004), but in that case the First
Circuit declined to address whether a district court cor-
rectly denied a motion to suppress where the defendant
had argued that the police planted the firearm he
wanted to exclude.
No. 10-1576 9
In fact, no such case could have been found. A defendant
who wishes to bring a Fourth Amendment challenge
need only show that he had a legitimate expectation of
privacy in the area searched. Minnesota v. Carter, 525
U.S. 83, 87-88 (1998); United States v. Crowder, 588 F.3d 929,
934 (7th Cir. 2009); United States v. Alexander, 573 F.3d
465, 472 (7th Cir. 2009); United States v. Yang, 478 F.3d 832,
835 (7th Cir. 2007). As Gardner has argued throughout
this case, and as the government concedes, he had a
reasonable expectation of privacy in his own person
and clothing. E.g., United States v. Gray, 491 F.3d 138, 146
n.3 (4th Cir. 2007). Thus, he certainly had the necessary
privacy interest to support a challenge to the officers’ pat-
down search of his pockets as unconstitutional on the
ground that the officers lacked reasonable suspicion to
frisk him. And if the frisk was unconstitutional, then the
officers’ discovery of the gun, which they say resulted
from the frisk, would have been barred at trial. See
United States v. Tyler, 512 F.3d 405, 412 (7th Cir. 2008);
United States v. Swift, 220 F.3d 502, 506-07 (7th Cir. 2000).
The government counters that any effort to suppress
the gun would have nonetheless failed because
Gardner’s insistence that he did not possess a gun neces-
sarily means that the search was not the “but-for” cause of
the discovery of the gun. See Hudson v. Michigan, 547
U.S. 586, 592 (2006) (stating that but-for causation is a
“necessary . . . condition for suppression”). Therefore, the
government maintains, the gun could not have been
suppressed even if the search was unlawful. But an
unlawful search does “cause” the discovery of a planted
gun if the search enabled the police to plant it. A
10 No. 10-1576
defendant seeking to have evidence suppressed as the
fruit of an illegal search need only establish a “factual
nexus between the illegality and the challenged evidence.”
United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999)
(citing United States v. Kandik, 633 F.2d 1334, 1335 (9th
Cir. 1980)); see also United States v. Marasco, 487 F.3d 543,
547 (8th Cir. 2007). Gardner easily could have satisfied
that burden by pointing to the police reports asserting
that the officers found a gun in his pocket. Cf. United
States v. Singleton, 987 F.2d 1444, 1449 (9th Cir. 1993)
(explaining that courts must look at evidence from both
sides when determining whether defendant has expecta-
tion of privacy). He need not confess under oath to pos-
session to show a “factual nexus.” Furthermore, if the
body frisk was unconstitutional, then the officers would
not have been permitted to testify about anything—
including the gun—that they allegedly found as a result
of it. See Wong Sun v. United States, 371 U.S. 471, 485
(1963); United States v. Acox, 595 F.3d 729, 733 (7th
Cir. 2010). Without a foundation for how the police ob-
tained the gun, the government would not have been
able to admit the gun at trial, and the case against
Gardner would have collapsed.
If we were to adopt the government’s view, a
defendant who truthfully contends that police stopped
him unlawfully and planted a gun on him during a
suspicionless search would be able to challenge the
search only by perjuring himself at a suppression
hearing by falsely stating that he possessed the gun. It
should go without saying, however, that perjury is never
required—it is not even permitted. Such lies could also
No. 10-1576 11
expose a defendant to impeachment at trial if he later
truthfully denied possession. See United States v. Salvucci,
448 U.S. 83, 93-94 & n.8 (1980); Reinert v. Larkins, 379
F.3d 76, 96 n.5 (3d Cir. 2004); Guenther v. Holmgreen, 738
F.2d 879, 886 n.7 (7th Cir. 1984). To avoid perjury
and impeachment, the defendant’s only alternative
would be to forfeit a challenge to the search and rest
his hopes on the jury’s believing his testimony that the
police planted a gun. The law is not that harsh. A defen-
dant with two legitimate defenses to a possession charge
is not forced to pick just one—indeed, he is entitled
to present inconsistent positions if he wishes. See
Mathews v. United States, 485 U.S. 58, 64-66 (1988); see also
Johnson, 604 F.3d at 1021 (noting no inherent conflict
between defense that police search of car violated
Fourth Amendment and defense that defendant had no
knowledge of drugs found in car); United States v. Moran,
503 F.3d 1135, 1146-47 (10th Cir. 2007) (explaining that
to prove possession of firearm by felon government
must prove that possession was voluntary).
We also reject the possibility that counsel’s failure to
move to suppress was based on a reasonable trial
strategy rather than a misapprehension of law. See Strick-
land, 466 U.S. at 689. Gardner’s second lawyer stated in
his affidavit that he advised Gardner against falsely
testifying at any hearing (perfectly reasonable advice
in isolation). The district court appeared to infer from
this statement that counsel decided against moving to
suppress the gun as a matter of prudence because
Gardner’s denial of possession might be deemed
perjurious, leading to an increase in his offense level at
12 No. 10-1576
sentencing for obstruction of justice. See U.S.S.G. § 3C1.1.
We reject this inference, which even the government
does not embrace, because it is contradicted by the rest
of the record. The trial judge twice told Gardner in
the presence of his second counsel that both of his attor-
neys had correctly advised him that he was forbidden
from asking to suppress the gun while denying that
the police found it on him and then took it. The second
time, counsel confirmed that he had repeatedly advised
Gardner on this “issue.” We thus conclude that Gardner’s
lawyers abstained from moving to suppress because
they thought, incorrectly, that the law prohibited them
from doing so absent a confession to possession, and
not because it was prudent.
Counsel’s belief that the law required Gardner to
confess to possession, which the district court echoed,
was a misapprehension of law that, as in Johnson, 604
F.3d at 1019-21, prevented counsel from seeking to sup-
press critical evidence. The only remaining question,
which the government does not discuss but which we
consider important enough to raise, is whether counsel’s
performance is somehow excused because the district
court endorsed the error. We think that a blanket rule
to this effect—i.e., no matter how egregious the district
court’s error, counsel has no independent obligation
to perform competently—would be inconsistent with
the guarantee of effective assistance of counsel that the
Sixth Amendment assures and that Strickland elaborates.
Under that regime, counsel, not the court, is responsible
for protecting the interests of the accused, and it is coun-
sel’s performance that must be assessed objectively.
No. 10-1576 13
Moreover, we know from Bowles v. Russell, 551 U.S.
205 (2007), that fundamental mistakes by the district
court (in that case, believing that it could extend the time
in which to file a civil appeal) do not necessarily
excuse counsel’s actions. In Bowles, the error could not
be overlooked because it had jurisdictional significance.
Here, it does not, but if counsel had understood the
law properly and filed the proper motion, the district
court might have realized that it needed to revisit the
governing cases and the error would have been nipped
in the bud. Any error that the district court made with
respect to the suppression motion could have been
cured on appeal.
Because the district court found it unnecessary to
reach the second part of the ineffectiveness inquiry—
prejudice—we cannot resolve the case at this stage. In-
stead, the proper step is to remand for an evidentiary
hearing on prejudice. This will require an assessment of
the likelihood that a motion to suppress would have
been granted. We do not regard the outcome of that
inquiry as inevitable one way or the other. As far as we
can tell at this point, although this is not a case where
the motion to suppress would certainly have been suc-
cessful but for counsel’s blunder, see Owens v. United
States, 387 F.3d 607, 607-09 (7th Cir. 2004), Gardner
might have prevailed, see Johnson, 604 F.3d at 1020-21; see
also Gentry v. Sevier, 597 F.3d 838, 851-52 (7th Cir. 2010)
(finding deficient performance when record gave no
indication that the motion to suppress critical evidence
that counsel refused to file would have been futile).
Gardner’s allegations that the police accosted him with-
14 No. 10-1576
out provocation, coupled with the evidence of his
physical dissimilarity to the armed assailant described
by the dispatcher, could have resulted in a ruling that the
pat-down search violated the Fourth Amendment. See
Ienco, 182 F.3d at 523-24. The government may try to
impeach Gardner’s credibility, but of course credibility
determinations are for the district court to make in the
first instance. See, e.g., Formella v. U.S. Dep’t of Labor,
628 F.3d 381, 391 (7th Cir. 2010).
Accordingly, we R EVERSE the district court’s decision
and R EMAND for an evidentiary hearing to determine
whether counsel’s failure to file a suppression motion
prejudiced Gardner and for any other proceedings con-
sistent with this opinion.
5-25-12