James E. Smith v. United States of America

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 9, 2006*
Decided March 14, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2822
JAMES E. SMITH,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 03 C 6413
Matthew F. Kennelly,
Judge.
O R D E R
James Smith was convicted of counterfeiting, 18 U.S.C. § 471, after a state
arrest for retail theft led to the discovery of his home-based counterfeiting operation.
We dismissed his direct appeal under Anders v. California, 386 U.S. 738 (1967), and
Smith then filed a motion under 28 U.S.C. § 2255 arguing that his trial counsel was
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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No. 05-2822 Page 2
ineffective for not moving to suppress the counterfeiting evidence on the ground that
it was tainted by an unlawful arrest. The district court denied relief, reasoning that
Smith could not show prejudice because a motion to suppress would have failed. We
affirm.
Niles, Illinois, police officer Ronald Brandt arrested Smith after security
guards at a Target store informed him that Smith was seen and videotaped taking
goods off shelves and “returning” them for cash and store credit. The security guards
also informed Brandt that they observed Smith enter the store without the items he
“returned.” While searching Smith incident to the arrest, Brandt discovered
counterfeit currency and narcotics. Brandt notified the Secret Service, and Smith
confessed to an agent that he made the counterfeit currency at home. Agents
searched Smith’s home with his consent and discovered a printer and additional fake
bills.
Smith was charged in federal court with counterfeiting, as well as retail theft
and narcotics possession in state court. At a preliminary examination in state court,
the judge concluded that a finding of probable cause could not be made as to the theft
offense because while testifying at the hearing, Officer Brandt did not specify which
of the two Target security guards observed Smith removing items from the shelves
and which guard saw him returning those items. Still, a state grand jury indicted
Smith, although the trial judge ultimately granted a judgment of acquittal on the
theft charge after excluding critical evidence for which the prosecution had not
established a foundation. Smith was later convicted on the federal counterfeiting
charges.
During Smith’s state court proceedings and at the evidentiary hearing on his
§ 2255 motion, Officer Brandt testified that he arrested Smith based on
representations from the Target security guards that they observed Smith removing
shelved items and “returning” those items for cash and store credit. This
information, said Brandt, gave him probable cause to arrest Smith for “fraudulent
return.” See 720 Ill. Comp. Stat. 5/1-6A-3(f) (defining retail theft to include returning
items not legally possessed for cash, credit, or other property).
Smith’s trial counsel in the federal case, Gene Steingold, testified at the § 2255
evidentiary hearing that he considered moving to suppress the evidence obtained as a
result of the arrest. But, after speaking with Smith’s state public defender and
reviewing the police and Target store security reports, Steingold ultimately concluded
that the effort would be unsuccessful because the arrest was supported by probable
cause.

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No. 05-2822 Page 3
Smith argues, though, that the state-court acquittal demonstrates that a
motion to suppress premised on a lack of probable cause for his arrest would have
succeeded and, thus, his counsel was ineffective. We review the district court’s
rejection of that argument under the framework established in Strickland v.
Washington, 466 U.S. 668 (1984), which requires proof that an attorney’s deficient
performance prejudiced the defendant. Martin v. Grosshans, 424 F.3d 588, 590 (7th
Cir. 2005). In the context of a motion to suppress, the prejudice prong of Strickland
requires that the defendant prove that the motion would have succeeded. Owens v.
United States, 387 F.3d 607, 611 (7th Cir. 2004).
Eyewitness accounts almost always provide probable cause to arrest unless
evidence suggests that the information or its source is not credible. Pasiewicz v. Lake
County Forest Pres. Dist., 270 F.3d 520, 524 (7th Cir. 2001). Here there was no
indication that the information from the security guards should not be credited; they
provided Officer Brandt with a videotape of Smith’s wrongdoing, and Brandt himself
was well acquainted with the guards (he testified during Smith’s state court
proceedings that he personally responds to 20 or 30 calls each year from Target). In
the absence of a reason to doubt the security guards, Brandt had no duty to
investigate further before arresting Smith. See id.; Woods v. City of Chicago, 234
F.3d 979, 997 (7th Cir. 2000). Moreover, although Smith argues otherwise, his
acquittal on the theft charge is immaterial; information giving rise to probable cause
for an arrest need not be sufficient to convict. See Anderer v. Jones, 385 F.3d 1043,
1050 n.9 (7th Cir. 2004), amended on rhr’g, 412 F.3d 794 (7th Cir. 2005); Braun v.
Baldwin, 346 F.3d 761, 766 (7th Cir. 2003). Also unpersuasive is his argument that
his attorney should have known to file the motion because a state court judge
concluded at a preliminary examination, see 725 Ill. Comp. Stat. 5/109-3, that
probable cause to let the theft case proceed was lacking. Not only did a state grand
jury later conclude otherwise, see 725 Ill. Comp. Stat. 5/112-4(b); People v. Mennenga,
551 N.E.2d 1386, 1390-91 (Ill. App. Ct. 1990) (explaining that a finding of no probable
cause at a preliminary hearing does not preclude indictment by grand jury), but our
review focuses on whether Officer Brandt had probable cause to make an arrest, not
on whether the prosecutor mustered sufficient evidence of the technical elements of
the offense later in a courtroom, see Spiegel v. Cortese, 196 F.3d 717, 724 n.1 (7th Cir.
1999) (explaining that police officers are not required to establish probable cause as
to every element of an offense before making an arrest); Driebel v. City of Milwaukee,
298 F.3d 622, 643 (7th Cir. 2002). Thus, Smith cannot show that he was prejudiced
by his counsel’s failure to file a motion to suppress the arrest.
Nor do we think that Smith’s counsel was deficient for failing to file a frivolous
motion to suppress. Counsel investigated the possibility of filing a suppression
motion but decided not to challenge the evidence based on his reasoned conclusion
that probable cause supported the predicate arrest. See Brown v. Sternes, 304 F.3d

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No. 05-2822 Page 4
677, 692 (7th Cir. 2002) (noting that it can be a reasonable exercise of judgment to
terminate further investigation of a fruitless issue). Moreover, our own analysis here
supports counsel’s judgment that a motion to suppress would have failed. See United
States v. Jackson, 103 F.3d 561, 575 (7th Cir. 1996) (noting that the Sixth
Amendment does not require counsel to pursue a futile motion to suppress).
AFFIRMED.

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