In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1777

ADRIAN T. JOHNSON,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 07-01146—Michael H. Mihm, Judge.

ARGUED OCTOBER 9, 2009—DECIDED MAY 14, 2010

Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Adrian T. Johnson was convicted 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 regardless 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 highcrime high-density area and therefore subject to enhanced 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 contain open alcohol. The officers watched as Johnson proceeded 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 negative, 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 responded 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 assistance claim before this court.

II.

Johnson argues that he was denied the effective assistance of counsel when his attorney failed to file a motion

to suppress the crack cocaine based on the unconstitutional 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 possession and incriminating statements out of evidence.

Despite Johnson’s request, however, his attorney chose

not to file a motion to suppress the crack cocaine evidence 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 suppression 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. Conduct 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 objectively 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 nonowner 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 expectation 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 contraband 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 circumstances, 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 occupant 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 dispositive 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 knowledge 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 established 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 contents. 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. Therefore, Borsberry was not required to choose between

his preferred trial strategy and a motion to suppress—both options could have been fully pursued without 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 testimony 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 Amendment 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 suppress 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 sufficient 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 consented 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 obtained 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 assistance 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 evidence as to why they believed that it was open. It is not

hard to imagine facts that could lead an officer to reasonably 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 VACATED and the case REMANDED for

further proceedings consistent with this opinion. Circuit

Rule 36 shall apply on remand.

5-14-10