Steven R. Rann v. Atchison, 7th Cir No. 11-3502, 8/3/12

By Wisconsin State Public Defender
Aug 6, 2012

seventh circuit court of appeals decision

Habeas Review – IAC/Suppression Claim, Generally

Under Strickland, Rann must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Grosshans, 424 F.3d at 590 (citing Strickland, 466 U.S. at 687). When reviewing claims of ineffective assistance of counsel in habeas petitions, however, we must honor any reasonable state court decision, since “only a clear error in applying Strickland’s standard would support a writ of habeas corpus.” Holman v. Gilmore, 126 F.3d 876, 882 (7th Cir. 1997). As Rann’s ineffective assistance of counsel claim arises from his counsel’s failure to move to suppress evidence, Rann must prove “ ‘that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.’ ” Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir. 2010) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).1 Strickland requires that we presume counsel “ ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ ” Ebert, 610 F.3d at 411 (quoting Strickland, 466 U.S. at 690).

Left unsaid: “To satisfy the Strickland test where the asserted attorney error is a defaulted Fourth Amendment claim, a defendant must first prove that the Fourth Amendment claim is meritorious,” United States v. Stewart, 388 F.3d 1079, 1084 (7th Cir.2004). In other words, in the IAC context, the defendant has to prove a 4th A violation, an inversion of the usual order of suppression litigation, at least with respect to warrantless searches. The court here ultimately concludes that Rann’s 4th A claim can’t prevail, therefore his IAC claim must fall; failure to state the operative principle is probably mere oversight. Worth noting: the court’s suggestion it would entertain an argument that habeas review of 4th amendment issues are barred under Stone v. Powell, 428 U.S. 465 (1976), if the state has afforded a full and fair opportunity to litigate the matter. The state didn’t preserve such an argument here, otherwise, the court strongly hints, it would take up the question.

Search & Seizure – Private / Government Search – Digital Storage Devices

Warrantless police inspection of privately obtained digital storage devices (zip drive; camera memory card) didn’t violate the fourth amendment. There is no dispute that the devices were obtained by private citizens without police involvement; rather, the question is whether, by inspecting the content, the police “exceed(ed) the scope of the private search.”

We have not yet ruled on the application of Jacobsen to a subsequent police search of privately searched digital storage devices, but the Fifth Circuit has in United States v. Runyan, 275 F.3d 449 (5th Cir. 2001). There, Runyan was convicted on child pornography charges after his ex-wife and several of her friends entered his residence and assembled a collection of digital media storage devices, which they turned over to the police. Id. at 456. Even though Runyan’s ex-wife and her friends had only viewed a “randomly selected assortment” of the disks, the police searched each disk and found a trove of child pornography images. Id. at 460. The court applied Jacobsen to these facts and partially upheld the government search, holding that a search of any material on a computer disk is valid if the private party who conducted the initial search had viewed at least one file on the disk. Id. at 465. Analogizing digital media storage devices to containers, the Fifth Circuit ruled that “police exceed the scope of a prior private search when they examine a closed container that was not opened by the private searches unless the police are already substantially certain of what is inside that container based on the statements of the private searches, their replication of the private search, and their expertise.” Id. at 463. Since the police could be substantially certain, based on conversations with Runyan’s ex-wife and her friends, what the privately-searched disks contained, they did not exceed the scope of the private search when they searched those specific disks. Id. at 465.2

We find the Fifth Circuit’s holding in Runyan to be persuasive, and we adopt it. …

Likewise, even if the police more thoroughly searched the digital media devices than S.R. and her mother did and viewed images that S.R. or her mother had not viewed, per the holding in Runyan, the police search did not exceed or expand the scope of the initial private searches. Because S.R. and her mother knew the contents of the digital media devices when they delivered them to the police, the police were “substantially certain” the devices contained child pornography. See Runyan, 275 F.3d at 463. Accordingly, the subsequent police search did not violate the Fourth Amendment, and Rann’s ineffective assistance of counsel claim must fail.