Defense counsel considered and chose not to file a motion to suppress. At the time (2008) the law was less clear than now about automobiles on the curtilage and computers in the car as a “container.” Jardines and Collins came much after. CoA denied. Alberts v. Perry, 2021 U.S. App. LEXIS 29927 (6th Cir. Oct. 5, 2021)*:
Reasonable jurists could not disagree with the district court’s merits-based denial of Alberts’s claim for relief. To establish ineffective assistance of counsel, a defendant must show both that: (1) counsel’s performance was deficient, i.e., that counsel’s representation fell below an objective standard of reasonableness; and (2) the deficient performance resulted in prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The test for prejudice is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. When a habeas petitioner bases an ineffective assistance claim on counsel’s failure to bring a suppression motion, the “[p]etitioner 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.'” Robinson v. Howes, 663 F.3d 819, 825 (6th Cir. 2011) (quoting Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)).
The district court noted that at the evidentiary hearing on Albert’s state post-conviction petition, trial counsel testified that, in moving to suppress the evidence, he focused on the problems with the search warrant and the supporting affidavit and that, on remand, he believed that his challenge to the warrant had preserved any challenge to the search of the laptop computer as a “container” under the automobile exception. Counsel further testified that his understanding of the law at the time the matter was remanded for consideration of the automobile exception was that a computer was a “container” subject to search under the exception, but that “post-Riley,” he would have filed a separate motion to suppress the computer evidence. And on appeal, appellate counsel, relying on Riley, argued that the search of the computer was not covered by the automobile exception. Counsel’s testimony makes clear he made the arguments that, at the time, he believed made the strongest case for suppression. And, in fact, he was initially successful in the trial court. “When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). Such decisions, made for tactical purposes and based on reasonable grounds, are not sufficient to show ineffective assistance of counsel. See Strickland, 466 U.S. at 687.
In addition, an attorney’s failure to foresee a change in the law is not ineffective assistance. See, e.g., United States v. Burgess, 142 F. App’x 232, 240-41 (6th Cir. 2005). A habeas court must assess the adequacy of counsel’s performance based on “counsel’s perspective at the time,” Strickland, 466 U.S. at 689, rather than “in the harsh light of hindsight,” Bell v. Cone, 535 U.S. 685, 702 (2002). Therefore, “subsequent legal developments are relevant only if those developments were ‘clearly foreshadowed by existing decisions.'” Baker v. Voorhies, 392 F. App’x 393, 400 (6th Cir. 2010) (quoting Thompson v. Warden, Belmont Corr. Inst., 598 F.3d 281, 288 (6th Cir. 2010)). Aside from this narrow exception, “counsel is not ineffective for failing to predict the development of the law.” Thompson, 598 F.3d at 288.
At the time of Alberts’s trial, it was far from clear that the automobile exception might not apply to the search of a locked car parked within the curtilage of a home. Three months before trial, the Supreme Court clarified that the curtilage of a home is considered part of the home itself for purposes of the Fourth Amendment and that therefore any unlicensed intrusion into the curtilage to gather evidence is considered a search for which consent or a warrant must be obtained. Jardines, 569 U.S. at 6-8. Jardines defined a home’s curtilage as “the area ‘immediately surrounding and associated with the home,'” id. at 6 (quoting Oliver v. United States. 466 U.S. 170, 180 (1984)), and “‘intimately linked to the home, both physically and psychologically,’ . . . where ‘privacy expectations are most heightened,'” id. (quoting California v. Ciraolo, 476 U.S. 207, 213, (1986)). It was not until 2018 that the Supreme Court held in Collins v. Virginia, 138 S. Ct. 1663, 1671, 1675 (2018), that the automobile exception does not permit the warrantless entry of a home’s curtilage in order to search a vehicle and concluded that a driveway, under certain circumstances, can be considered part of the home’s curtilage. Cases from this court finding that driveways were not considered part of the curtilage of a home show that the Supreme Court’s holding in Collins—to the extent it could even support Alberts’s argument for suppression—was not “clearly foreshadowed” at the time of Alberts’s trial. See, e.g., United States v. Galaviz, 645 F.3d 347, 355-56 (6th Cir. 2011); United States v. Estes, 343 F. App’x 97, 101 (6th Cir. 2009).
