In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1576

DERRICK GARDNER,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

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.

ARGUED FEBRUARY 29, 2012—DECIDED MAY 25, 2012

Before BAUER, ROVNER, and WOOD, Circuit Judges.

WOOD, 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 ineffective 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 produced 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 prejudiced 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 encounter 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 statements” 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 conference, 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 responded, 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 discussed “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 suppressed 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 expectation 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 suppression hearing had to remain consistent with his notguilty 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 apartment 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 increased 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 determined 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 possession 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 assistance 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 assistance 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 defendants will not have the necessary knowledge

unless the lawyer discusses the point. But these arguments 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 counsel rendered constitutionally deficient performance

when, relying on a misunderstanding of the law, he refused 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 correctly 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’ patdown 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 necessarily 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 expectation of privacy). He need not confess under oath to possession 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 obtained 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 defendant 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 Strickland, 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 attorneys 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 suppress 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 counsel’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. Instead, 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 successful 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 REVERSE the district court’s decision

and REMAND for an evidentiary hearing to determine

whether counsel’s failure to file a suppression motion

prejudiced Gardner and for any other proceedings consistent with this opinion.

5-25-12