Owens v. U.S.

• Citation: 387 F.3d 607
• Decision Date: 19 October 2004
• Docket Number: No. 03-1507.,03-1507.
• Parties: Anthony OWENS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 607

387 F.3d 607

Anthony OWENS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 03-1507.

United States Court of Appeals, Seventh Circuit.

Argued August 3, 2004.

Decided October 19, 2004.

Appeal from the United States District Court for the Southern District of Indiana, Larry J. McKinney, Chief Judge.

Eldad Z. Malamuth (argued), Mayer, Brown, Rowe & Maw, Washington, DC, for Petitioner-Appellant.

Stephan E. Oestreicher, Jr. (argued), Department of Justice, Crim. Div., Appellate Section, Washington, DC, for Respondent-Appellee.

Before POSNER, ROVNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

Anthony Owens filed a motion under 28 U.S.C. § 2255 to set aside his drug conviction and sentence because his trial lawyer fumbled what should have been a successful motion to suppress evidence seized pursuant to a warrant to search Owens's house. The district court denied the motion, and Owens appeals. He is met at the threshold by our decision in Holman v. Page, 95 F.3d 481, 488-92 (7th Cir.1996), which holds that a failure to make a Fourth Amendment objection to the admission of evidence, however meritorious the objection, cannot amount to ineffective assistance of counsel in a constitutional sense if the evidence was reliable, so that its admission, even if improper, created no risk that an innocent person would be convicted. Owens asks us to overrule Holman, noting its inconsistency with the case law of the other circuits and the long shadow cast over it by subsequent decisions of the Supreme Court. We need not consider his request unless we decide that his lawyer indeed booted a good Fourth Amendment claim, so let us begin with that question.

The warrant pursuant to which evidence (consisting mainly of cocaine, marijuana, and guns) was used against Owens at his trial was based on a barebones affidavit, signed by a detective, which stated that three months earlier an informant had bought "a quantity of crack" from Owens at a house believed to be Owens's residence. There was no indication either of the actual quantity of crack or of the reliability of the informant. Owens's trial lawyer moved to suppress the evidence, arguing that a sale of an unknown quantity of an illegal drug three months before a search warrant was sought does not, without more (as in United States v. Pless, 982 F.2d 1118, 1125-26 (7th Cir.1992)), establish probable cause to believe that the search of the premises on which the sale took place would turn up contraband or evidence of crime. The argument should have been a winner. Sgro v. United States, 287 U.S. 206, 212, 53 S.Ct. 138, 77 L.Ed. 260 (1932); United States v. Helton, 314 F.3d 812, 821-23 (6th Cir.2003); United States v. Weaver, 99 F.3d 1372, 1378-79 (6th Cir.1996); United States v. Wagner, 989 F.2d 69, 74-75 (2d Cir.1993). If the quantity was slight — which, for all the judge issuing the warrant could have known, it was — there would be no basis for thinking either that the premises were a crack house or that the money received in the sale would still be on the premises. It would be just as likely that either Owens or someone with access to his house had made a single, isolated sale, perhaps to a desperate acquaintance.

So inadequate was the affidavit that the search cannot be saved by United States v. Leon, 468 U.S. 897, 923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which holds that the fruits of a search pursuant to a warrant should not be suppressed unless the officers who conducted it could not reasonably have believed that the warrant was supported by probable cause. See United States v. Zimmerman, 277 F.3d 426, 437 (3d Cir.2002); United States v. Weaver, supra, 99 F.3d at 1380-81; United States v. Wilhelm, 80 F.3d 116, 122-23 (4th Cir.1996); United States v. Leake, 998 F.2d 1359, 1367 (6th Cir.1993); United States v. Baxter, 889 F.2d 731, 733-34 (6th Cir.1989). The continued validity of Holman v. Page is therefore inescapably presented—provided of course that Owens's lawyer was ineffectual in failing to get the fruits of the search suppressed. He was, even though, as we noted, he made the right argument. The trouble arose because he failed to argue in addition that it was Owens's house in which the crack was found. (Owens's defense at trial was going to be that he had no connection with the house.) This omission enabled the government to riposte that if it wasn't Owens's house, no right of his had been violated by the search. And so the motion to suppress failed.

The evidence was overwhelming that it was indeed Owens's house in which the crack was found. The lawyer's decision to bet his all on a denial of that fact and by doing so forfeit a compelling ground for excluding evidence essential to convict his client was therefore a blunder of the first magnitude. Had he acknowledged that it was Owens's house, the motion to suppress would have been granted and Owens would have been acquitted. And in the unlikely event that the motion failed, the defense could change course and try to prove at trial that it was not Owens's house after all. His earlier denial would not be a bar. "[W]hen 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." Simmons v. United States, 390 U.S. 377, 394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Apparently Owens's lawyer was not familiar with the Simmons rule; he should have been.

So we come to Holman v. Page, where we reasoned as follows. A claim of ineffective assistance of counsel requires proof not only that the lawyer's handling of the defense failed to come up to minimum professional standards but also that his failure "prejudiced" the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Evidence seized in an illegal search is usually—in this case as in Holman—reliable, and on this ground the Supreme Court had held in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), that a violation of the Fourth Amendment cannot be a ground for habeas corpus (or for its equivalent for federal prisoners, such as Owens—the grant of a section 2255 motion) unless the defendant could not have presented a Fourth Amendment defense at trial. Therefore, we reasoned in Holman, if a lawyer's failure to argue a Fourth Amendment defense were deemed prejudicial and thus could support a finding of ineffective assistance of counsel, this would allow a Fourth Amendment claim to be smuggled in by the back-door route of a Sixth Amendment claim.

The essence of Holman's analysis was thus a narrow definition of "prejudice": the defendant is prejudiced by his lawyer's inadequacy only if that inadequacy created a risk of convicting an innocent person. Provided the evidence seized in an illegal search is reliable, suppressing that evidence is not required in order to protect the innocent—it is merely a tool for deterring violations of the Fourth Amendment. Yet this rationale, far from being compelled by Stone v. Powell, is, we now realize, inconsistent with that decision. The Court had, remember, said that a federal habeas corpus claim could be based on a Fourth Amendment violation if the defendant hadn't had an opportunity to present his Fourth Amendment defense at his trial. Stone v. Powell, supra, 428 U.S. at 494, 96 S.Ct. 3037; Cabrera v. Hinsley, 324 F.3d 527, 531-32 (7th Cir.2003); Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir.2002). If the defendant hasn't had effective assistance of counsel at trial, he has been deprived of that opportunity, and the back door to postconviction relief swings open. And so the Court held in Kimmelman v. Morrison, 477 U.S. 365, 383, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), rejecting the argument "that Stone's restriction on federal habeas review of Fourth Amendment claims should be extended to Sixth Amendment ineffective-assistance-of-counsel claims which are founded primarily on incompetent representation with respect to a Fourth Amendment issue."

The holding of Kimmelman v. Morrison — that the Sixth Amendment does provide a remedy for counsel's failure to argue a Fourth Amendment defense—is inconsistent with holding that a defendant is not prejudiced by, and therefore has no Sixth Amendment grievance concerning, a failure to suppress illegally seized evidence. It is true that Justice Powell's concurring opinion argued that the use of illegally seized, but reliable, evidence is not "prejudice," because its use does not make the defendant's trial "unfair." Id. at 391-98, 106 S.Ct. 2574. But he acknowledged that the majority opinion tugs the other way. Id. at 391, 106 S.Ct. 2574. We quote the relevant language of the majority opinion, italicizing the critical sentence: "We also reject the suggestion that criminal defendants should not be allowed to vindicate through federal habeas review their right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence—evidence which is `typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.'... [W]e have never intimated that the right to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt. Furthermore, petitioners do not suggest that an ineffective-assistance claim asserted on direct review would fail for want of actual prejudice whenever counsel's primary error is failure to make a meritorious objection to the admission of reliable evidence the exclusion of which might have affected the outcome of the proceeding. ...