Defense lawyers flub ‘planted gun’ case, rules 7th Circuit

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A convicted felon may get a new trial because his lawyers misread the Fourth Amendment implications of their client’s contention that a gun found on his person was planted by police.

Derrick Gardner is the beneficiary of a decision handed down by the 7th Circuit on May 25. In October 2002, Gardner had the misfortune of being found standing outside the entrance to a Chicago apartment building just as a pair of police officers pulled up. The two officers were responding to a radio dispatch for an “assault in progress” by a “man with a gun” at #407 of said building.

There are two versions of what happened next.

According to the police, Gardner approached their patrol car and responded “407” when asked where he was coming from. Then, Gardner voluntarily placed his hands on their patrol cruiser and submitted to a pat down.

The officers found a 9 mm handgun in Gardner’s jacket pocket, which was big trouble because the man had multiple prior felony convictions.

According to Gardner’s account of his arrest, police stopped and frisked him without reasonable suspicion. In particular, Gardner complains that, while the radio dispatch said that the black male suspected of committing the assault in apartment #407 was 5′ 7″” and weighed around 165 pounds, he is 6’2’’ and a healthy 225 pounds.

Gardner says that he was just hanging out minding his own business when police arrived.

Moreover, Gardner claims that he did not have a gun at the time and that the weapon allegedly found by police was in actuality a plant. Despite his protestations, a federal grand jury indicted Gardner for being a felon in possession of a firearm.

Before trial, Gardner wanted the firearm suppressed on the ground that police had committed an illegal stop and frisk.

But Gardner’s appointed lawyers concluded that their client’s Fourth Amendment challenge was an effort in futility so long as he continued to insist that the firearm was a plant. Their appraisal of the issue of Fourth Amendment standing was bolstered by the trial judge.

In a pretrial conference during which Gardener reiterated that he had been the victim of an illegal search, the district court explained that Gardner could not file a motion to suppress an item taken from him while at the same time denying that the item was in his possession in the first place.

So Gardner was convicted and the federal courts ultimately settled on a 15-year prison term. Of course, Gardner sought post-conviction relief on the ground of ineffective assistance of counsel.

The 7th Circuit decided that all the legal minds in the case – Gardner’s appointed lawyers, the federal prosecutors and the trial judge – were wrong when it came to Gardner’s instinct that his motion to suppress should have been filed and decided.

As Circuit Judge Diane Wood observed in her opinion in the case, 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.”

The judge recognized that Gardner readily made that minimal showing:

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. Thus, he certainly had the necessary privacy interest to support a challenge to the officers’ pat-down 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.

The government countered that any effort to suppress the gun was doomed to failure because Gardner’s insistence that he did not possess a gun meant that that the search was not the “but-for” cause of the weapon’s discovery.

But Wood batted that argument aside:

A 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.” Gardner easily could have satisfied that burden by pointing to the police reports asserting that the officers found a gun in his pocket. 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. 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.

Turning from the pure Fourth Amendment question to Gardner’s claim of ineffective assistance of counsel, the judge rejected the notion that the failure of Gardner’s lawyers to file a motion to suppress fell within the realm of reasonable trial strategy.

“Counsel’s belief that the law required Gardner to confess to possession, which the district court echoed, was a misapprehension of law that prevented counsel from seeking to suppress critical evidence,” Wood wrote.

(Gardner v. U.S.)

Gardner is not out of the woods yet. On remand, he will still have to establish that he was prejudiced by his lawyers’ deficient performance. As Wood pointed out, this will require an assessment by the district court of the likelihood that a motion to suppress would have been granted.

So Gardner still has a ways to go before getting a new trial.