U.S. v. Johnson, 82-1222

• Decision Date: 04 May 1983
• Docket Number: No. 82-1222,82-1222
• Parties: UNITED STATES of America, Appellee, v. Bruce Wayne JOHNSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 317

707 F.2d 317

UNITED STATES of America, Appellee, v. Bruce Wayne JOHNSON, Appellant.

No. 82-1222.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1982.

Decided May 4, 1983.

Donald L. Wolff, Wolff & Frankel, Clayton, Mo., for appellant.

Robert T. Haar, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before McMILLIAN and JOHN R. GIBSON, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Bruce Wayne Johnson appeals the district court's ¹ denial of his petition for post conviction relief under 28 U.S.C. Sec. 2255. Johnson was convicted of three federal firearm offenses: possession of a firearm by a felon in violation of 18 U.S.C.App. Sec. 1202(a)(1); possession of a twelve gauge, unregistered sawed-off shotgun in violation of 26 U.S.C. Secs. 5861(d) and 5871; and possession of the same twelve gauge shotgun without serial numbers in violation of 26 U.S.C. Secs. 5842, 5861(i) and 5871. Johnson alleges that he received ineffective assistance of counsel at his trial because his attorney failed to move for suppression of the firearms, which Johnson contends were seized during an illegal search of the residence. We affirm.

At the time of the search Johnson was a suspect in a state capital murder case arising out of a shooting in St. Louis County, and was believed to be keeping drugs at his residence. The police had been conducting surveillance of Johnson's home for a month or more before they obtained a search warrant. The police had reason to believe they would find drugs ² and firearms at Johnson's residence. Since there apparently were no state charges which could be brought concerning the firearms, the police contacted a federal Alcohol, Tobacco & Firearms (ATF) agent and requested that he participate in the search. The police sought and obtained a state search warrant listing drugs and drug paraphernalia as the only items to be searched for. No federal warrant was obtained. Pursuant to the state warrant the St. Louis County police, accompanied by an ATF agent, searched Johnson's residence. No drugs were found, ³ but they discovered a .38 caliber revolver and a sawed-off shotgun during a search of Johnson's bedroom. The revolver was found under his bed and the shotgun was found between the mattresses of the bed. The ATF agent who accompanied the police did not take part in the search until the residence had been entered and secured by the police, and he seized no weapons.

Both state capital murder charges and federal firearms charges were brought against Johnson. Johnson was acquitted of capital murder. He waived a jury trial on the federal charges and was tried by the court. Johnson's trial counsel, Allen Harris, filed several pretrial motions, but he did not file a motion to suppress the weapons, which constituted the primary evidence against Johnson, because he did not believe such a motion was meritorious. Instead, he defended Johnson on the theory that constructive possession of the weapons had not been proven. Johnson was convicted on all three counts, and his conviction was affirmed by this court. ⁴

Johnson subsequently filed a Sec. 2255 petition in district court, making various allegations of ineffective assistance of counsel. An attorney was appointed for Johnson and an evidentiary hearing was held before a magistrate. After making a detailed analysis of Johnson's allegations, the magistrate recommended that his petition be denied, and the district court adopted this recommendation.

At the Sec. 2255 hearing Johnson's trial attorney, Allen Harris, testified that he had not moved to suppress the firearms because he was unaware of a line of cases, relied on by Johnson in this appeal, indicating that the search of Johnson's residence was illegal. Harris testified that had he been familiar with this line of cases he would have filed a motion to suppress, and that he believed such a motion would have succeeded.

On appeal, Johnson's attorney has abandoned several of the points raised before the district court, and confines his argument to trial counsel's failure to file a motion to suppress the weapons. ⁵

The government argues that since Johnson waived his right to make a motion to suppress at trial, he must meet the standards set out in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) in order to prevail on his Sec. 2255 petition. In Frady the Supreme Court held that a Sec. 2255 petitioner must demonstrate both cause for his procedural default and prejudice resulting from the alleged violation of his rights. Johnson in turn argues that his counsel's ineffectiveness is adequate cause for failure to make the motion to suppress under the Frady standard, and that prejudice has been established since the motion, had it been made, would have been successful.

We examine Johnson's contentions in light of both the Frady standard and Fourth Amendment requirements. We turn first to Johnson's ineffective assistance of counsel argument to determine whether the cause requirement of Frady has been met. In order to establish ineffective assistance of counsel, Johnson must show (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances, and (2) that he was prejudiced by the attorney's ineffectiveness. Harris v. Housewright, 697 F.2d 202 (8th Cir.1982); Eldridge v. Atkins, 665 F.2d 228 (8th Cir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982); United States v. McMillan, 606 F.2d 245, 247 (8th Cir.1979).

The failure to make a motion to suppress what is essentially the only evidence against a defendant can be sufficient to establish lack of diligence on the part of the attorney if the motion would have succeeded. United States v. Easter, 539 F.2d 663 (8th Cir.1976), cert. denied 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977). In determining whether there was prejudice to appellant from the asserted lack of diligence, we must look into the underlying issue of whether a motion to suppress the weapons, if one had been made, would have been successful. Johnson contends that the seizure of the firearms was unconstitutional because the warrant authorizing the search permitted the police to search only for narcotics, and because the search was conducted jointly by state and federal officers even though the only warrant obtained related to state narcotics offenses.

This circuit has upheld searches involving the same elements as the search conducted here. In United States v. Wright, 641 F.2d 602 (8th Cir.), cert. denied 451 U.S. 1021, 101 S.Ct. 3014, 69 L.Ed.2d 394 (1981), an ATF agent had learned that defendant, a convicted felon, had purchased a firearm and falsified the records of the purchase, and that defendant was selling drugs from his motel room in Springfield, Missouri. In order to corroborate this information, the ATF agent recruited two Springfield police officers to help in an undercover investigation. After persuading defendant to open his motel room door by telling him that they had car trouble, the ATF agent and the police officers observed a white powdery substance and drug paraphernalia on a desk or dresser in the room. They then returned to the Springfield Police Department and applied for a search warrant stating that they had observed the white powdery substance which they believed to be drugs. A state judge issued a search warrant authorizing the officers to search only for controlled substances. Several police officers and a second ATF agent executed the warrant later that evening, seizing drugs, drug paraphernalia, a notebook listing prices and quantities of drugs and a shotgun which one of the officers found during a "protective sweep" of the room.

The search in Wright was conducted jointly by state and federal agents. We upheld the validity of the search in the absence of evidence that "the state search warrant was used as a subterfuge for a contemporaneous, warrantless search by ATF special agents for weapons." 641 F.2d at 606, n. 4. We cannot conclude in this case that the state warrant authorizing a search for narcotics was a subterfuge for a warrantless ATF search. There is no indication that the state warrant was not obtained in good faith. The fact that federal and state agents collaborated in the search, or that the presence of illegal firearms was strongly suspected by federal agents before the search, or even the fact that probable cause may have existed to obtain a search warrant for the firearms, does not amount to a showing that the state search warrant was used as "a subterfuge". ⁶ All these factors were present in the Wright case. In this case there was in fact less federal involvement than in Wright, where the ATF agent himself instituted the investigation and helped obtain the state search warrant.

In Wright, as in this case, the warrant authorized a search for drugs only and did not specifically list the firearm which was seized. We nevertheless upheld the search in Wright, finding that the seizure of the firearm fell within the "plain view" exception to the warrant requirement. We considered the three requirements of plain view, finding that (1) the intrusion itself was lawful because it was authorized by a valid state search warrant, (2) the discovery of the shotgun was inadvertent because "[a]lthough the officers probably expected to find a firearm in view of the ATF's information about appellant's purchase of a firearm and falsification of the federal transaction record, and in fact might have been able to obtain a search warrant for a firearm, there is no indication in the record that the search warrant for controlled substances was obtained in bad faith or that it was used as an excuse to seize the firearm in plain view and thus evade the warrant requirement," 641 F.2d at 605-06, and (3) the incriminating nature of the evidence was immediately apparent. In...