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Adrian T. Johnson v. U.S., 7th Cir No. 08-1777, 5/14/10

7th circuit decision

Permissive Driver, Standing to Challenge Car Search

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. … 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. … 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 ….

Settled though the principle might be it does tend to come up from time to time. Even so, the case probably wouldn’t be worth posting except that it discusses the problem in the context of ineffective assistance of counsel and reaches an interesting conclusion. Read on.

Ineffective Assistance of Counsel – Suppression Motion
Counsel’s tactical reasons for not filing a suppression motion were invalid. First, counsel thought that Johnson couldn’t assert a privacy interest because he didn’t own the car. This, as noted, is wrong, and “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.” Because counsel’s decision-making was infected by “a misapprehension of law” it was deficient. Second, counsel thought that  a “credibility determination” made at the suppression hearing would impair the lack-of-knowledge defense to be asserted at trial. This

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 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.

Interesting, to be sure, but possibly misleading nonetheless — not so much for what the court says but what it leaves unsaid. Suppressed evidence can’t used as substantive evidence in the state’s case-in-chief (as the block quote indeed suggests), but can be used as impeachment, U.S. v. Havens, 446 U.S. 620 (1980). Thus: by testifying at a suppression hearing, Johnson would risk being cross-examined as to whether the drugs were his and having that answer used against him if he later testified at trial. Fact is, he (almost certainly, it appears) would have denied knowledge at the suppression hearing so he wouldn’t have really risked impeachment at trial. In brief, the first ground for deficient performance — denial of knowledge was an unsupportable basis for not pursuing suppression — is the decisive ground. The point presently is that, contrary to a possible impression left by the decision, prosecuting a suppression motion isn’t necessarily risk-free.

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