THOMPSON, Associate Judge:
Appellant Earl Porter appeals from the trial court's denial of his D.C.Code § 23-110 motion, in which he sought relief on the ground that he received ineffective assistance from his trial counsel. The motion argued that Porter's trial counsel was ineffective in failing to seek suppression of evidence recovered from the scene of an alleged robbery. The trial court assumed that appellant's trial counsel was remiss in that regard and that a motion to suppress would have been successful, but it denied the § 23-110 motion because the remaining evidence against appellant was "overwhelming." Because the factual record is not sufficiently developed to permit us to conclude that the omitted motion to suppress would have resulted in exclusion of a significant quantum of evidence, and because we also are unable to agree with the trial court that there is no reasonable probability that the outcome of Porter's trial would have been different had some or all of the evidence in question been excluded, we are constrained to vacate the trial court's ruling on the § 23-110 motion, and to remand for further proceedings.
Appellant was tried on one count of robbery of a senior citizen, stemming from an event in October of 2003; and on charges of armed robbery, possession of a firearm during a crime of violence ("PFCV"), and possession of an unregistered firearm, all stemming from an incident in December
The October robbery charge was based on the testimony of John Anderson, who testified that he drove to the home of Marvella Bruce, with whom he had previously had intercourse, hoping to have intercourse with her. Anderson testified that when he arrived, he saw appellant, but accompanied Bruce into her bedroom after she assured him that appellant would not interfere. Anderson then testified that after he had been alone with Bruce for several minutes, appellant burst into the room with his hand under his shirt. Anderson testified that Bruce told him not to move and to empty his pockets. After giving appellant $345 and a watch, Anderson was allowed to take his keys and leave.
Vincent Walker recounted a similar story. He testified that in the early morning of December 4, 2003, after he had finished his evening work as a cigar salesman and had a few drinks, he encountered Bruce on the side of the road. He assumed she was a prostitute, let her into his car, and asked her to take him somewhere more secluded. She took him to the same house that Anderson testified he had visited in October. Once at the house, Walker and Bruce negotiated a price for a sex act. As Walker was undressing, appellant entered the room, pointed a sawed-off shotgun at Walker, and ordered him to sit on the couch. Walker testified that at some point, Bruce took his car keys, went to his car, came back and reported, "all he's got in there is cigar stuff." Walker testified that appellant took his bracelet, cufflinks, watch, earrings and other personal effects. Appellant then returned Walker's keys and told him he was lucky to be leaving with his life. When Walker returned to his car, he noticed that the interior was in disarray, the trunk was open, and his backpack had been "rummaged through."
Walker testified that he then drove to a nearby 7-Eleven store and called the police. After police met Walker at the store (at about 4:07 a.m.), he accompanied them back to the scene, and four officers (Officers Tighe, Frost, Jackson, and Terrell) approached the house he had described. Officer Kevin Tighe testified that the officers knocked on the door, identified themselves, and then asked and were granted permission to briefly sweep the house "for our safety and your safety," explaining that they were investigating an armed robbery. Officer Tighe testified that Bruce told him that she and "two adult males" (appellant and Tyrone Hunt) were the only ones in the house. Officer Tighe further testified that the purpose of the sweep was "to make sure that there was nobody else in the house ... other than the three people that we were aware of," because "[w]e didn't want anybody jumping out with firearms."
Officers escorted Bruce, appellant, and Hunt, in turn, outside for "show up" identifications, and Walker positively identified Bruce and appellant as the robbers. At the time, appellant was wearing a bracelet that Walker later identified as his. Appellant and Bruce were arrested and secured in police cars. During Hunt's show-up appearance, Walker identified Hunt only as a man he (Walker) "had seen in front of the location when he was leaving out after the robbery." Thereafter, according to Officer Tighe's written report,
On March 26, 2004, the jury returned verdicts finding appellant not guilty of the October incident, but guilty of the December armed robbery of Walker and of the associated weapons charges.
On April 15, 2009, the court convened the parties to issue its final ruling. The court told the parties that it would conduct an evidentiary hearing if they wanted, but that it would not hear evidence as to the second entry (i.e., the request for an evidentiary hearing would have "to be based on something in regards to the first time and the third time [i.e., the entry pursuant to the search warrant], but not the second time"). The court did not specifically address the government's argument that some of the evidence recovered during the second entry was admissible because officers had seen the evidence in plain view during their initial entry and could have seized it. Instead, in its brief ruling from the bench, the court said that it "would ... suppress" the evidence from the "second search," distinguishing this case from cases in which "the searching party was already on the scene entitled to be there." The court reasoned, however, that appellant was not prejudiced by his counsel's failure to file a motion to suppress because of the strength of the remaining evidence: the evidence that appellant was found in the house, matched Walker's description of his assailant, and was wearing Walker's bracelet; appellant's "incredible trial testimony";
To succeed on an ineffective assistance of counsel claim, a defendant must show (1) that trial counsel made errors so serious that counsel was not functioning as the counsel guaranteed under the Sixth Amendment; and (2) that counsel's deficiency prejudiced the defendant such that it deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also 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." Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To satisfy the prejudice prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional error[], the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The defendant "need not show, however, that [he] ... would necessarily have been acquitted" in the absence of his attorney's errors. Frederick v. United States, 741 A.2d 427, 439 (D.C.1999). A "reasonable probability" of a different outcome is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. When making the prejudice determination, we must "consider the totality of the evidence," including the strength of the evidence supporting the verdict. Id.
Both prongs of the ineffective assistance of counsel inquiry present mixed questions of law and fact. Strickland, 466 U.S. at 698, 104 S.Ct. 2052; see also Cosio v. United States, 927 A.2d 1106, 1123 (D.C. 2007). We accept the trial court's factual findings unless they lack evidentiary support, and we review the trial court's legal conclusions, including the court's conclusion as to prejudice, de novo. Id.; Mercer v. United States, 864 A.2d 110, 118 (D.C. 2004).
The focus of appellant's brief on appeal is that the trial court erred in reasoning that he was not prejudiced by his trial counsel's failure to seek suppression of the evidence from the second entry. We address that argument infra, but we begin with the government's argument that we can uphold the trial court's denial of appellant's § 23-110 motion on the alternative ground that appellant's trial counsel was not ineffective in failing to file a suppression motion, because the motion would not have been meritorious. Specifically, the government argues that, contrary to the trial court's reasoning, much of the evidence seized during the second entry would have been admissible under the so-called "plain view" doctrine as applied by this court in Clark v. United States, 593 A.2d 186 (D.C.1991).
We described the plain view doctrine in Umanzor v. United States, 803 A.2d 983 (D.C.2002), stating that the doctrine "allow[s] the warrantless seizure of evidence observed in plain sight when: (1) an officer [did] not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed; (2) the evidence's incriminating character is immediately apparent; and (3) the officer has a lawful right of access to the object itself." Id. at 998-99 (quoting Horton v. California, 496 U.S. 128, 136-37,
The government urges that Clark, in which we applied the plain view doctrine on what the government contends were facts materially similar to the facts of this case, controls the analysis here and warrants affirmance of the trial court's ruling. In Clark, we held that a pistol and a clip were admissible under the plain view doctrine where one officer (Officer Cole) had entered an apartment, the scene of a fatal shooting, legally (i.e., in response to an emergency call) and had seen the pistol and clip in plain view, and a crime scene technician later entered without a warrant and seized those items as well as a slug, which the initial officer had not seen. Clark, 593 A.2d at 198-99, n. 25. Of primary importance in our analysis were the facts that the initial officer, "who had made a concededly legal" entry, actually saw the pistol and clip and that the initial officer was "still on the scene when the crime scene search officer arrived" and seized the evidence. Id. at 197-98.
The government argues that the facts of this case are analogous to those of Clark:
To begin with, even though Officer Tighe's written report recounts that fellow officers told him that "during their sweep of the house they observed in plain view several items that they believed was [sic] property taken from [Walker] during the robbery," including "several cigar boxes and some other items," the record does not otherwise disclose how many and which of the items described at trial were seen in plain view during the initial, legal sweep. At trial, while Officer Tighe agreed with the prosecutor that the items Walker identified during the second entry were "items visible in the house without having to engage [in] any type of opening drawers or closets," the officer also testified that at least one item—a "cigar cutter"—was in a drawer (and thus possibly was not in plain view). Additionally, the officer testified about recovery of a "gym type bag ... [that] contained cigar boxes and cigar-type products" (emphasis added). The record suggests that some of the other recovered property also might not have been in plain view. For example, Officer Tighe testified that Walker's jacket and scarf were on the sofa and were "covering" other items of Walker's property that the government introduced into evidence. Similarly, Walker testified that a crocheted tissue box with his name on it—a gift from one of Walker's cigar customers, which the government argued "stood out as belonging to [Walker]"—was "sitting underneath the table in the living room" of the home—i.e., possibly not in plain view, or possibly not noticed by the officers during their initial sweep.
Further, Officer Tighe testified that he brought Walker into the house to "see if he could notice or locate any of his property that had been taken from him." It is not clear whether (and it seems unlikely that) all of the items that Walker "noticed" and identified were ones that the officers conducting the initial sweep had recognized as Walker's allegedly stolen property and thus (possibly) could have been seized under the plain view doctrine. The government—conceding as it did in the trial court that Officer Tighe's re-entry "with the victim" was "not justified by the Fourth Amendment" and acknowledging the illegality of any exploratory "search" that took place during the second entry (as distinguished from Officer Tighe's seizure of items that the officers saw in plain view and recognized as incriminatory during their initial sweep)—agrees that any evidence that was the fruit of the Fourth Amendment violation was inadmissible.
In short, in a number of ways, the facts of this case arguably are materially different from those of Clark. Given the deficiencies in the factual record, we cannot uphold the court's denial of appellant's § 23-110 motion on the alternative ground urged by the government (i.e., that the motion to suppress that his trial counsel failed to file would not have resulted in the exclusion of evidence).
Nor can we uphold the trial court's ruling by affirming its reasoning that appellant was not prejudiced by his trial counsel's failure to seek suppression of the evidence from the second entry. To the contrary, appellant has persuaded us that the evidence acquired during the second entry "alter[ed] the entire evidentiary picture," and that there is a reasonable probability that without certain portions of it, the jury would not have voted unanimously to convict him.
In particular, appellant argues, the crocheted tissue box with the name "Vincent" on it and the other cigar-related paraphernalia tied him to the robbery of Walker. During his testimony, Officer Tighe identified photographs of those and other items of recovered property (including "several... wooden cigar boxes" recovered from a bedroom in the house and other cigar boxes found in the dining room), and the court instructed jurors to "pass [the photographs] down one at a time" to "take a close look" at them. During Walker's direct testimony, too, the prosecutor had him describe seriatim, and then introduced into evidence, items of his property that he had identified within the house. The prosecutor emphasized this evidence during his opening, closing, and rebuttal arguments. He told the jury in his opening statement that they were "going to see the items that were recovered from the house" and that "when you have an opportunity to see these items you are going to know beyond a reasonable doubt that ... this man is guilty of these charges." The prosecutor finished his closing by telling the jury, "I would bet you a room full of cigars that you know what happened now after all the evidence is in." And, during rebuttal argument, he told the jury that the "evidence in this case is in this box [of recovered items]" and reminded the jury that Walker
The government argues that this evidence was merely "corroborative," and that the bracelet and the shotgun gave the jury all it needed to convict. We agree with appellant, however, that the volume of cigar materials and the tissue box were far more damaging than the bracelet, a more common item that less clearly belonged to cigar-salesman Walker.
As the government contends, and as the trial judge recognized, the shotgun recovered from the attic during execution of the search warrant, which matched Walker's description to police of the gun used in the robbery, was an important buttress to the case against appellant. But as appellant argues, recovery of the firearm corroborated Walker's claim that he had been in the home and had seen a firearm, not that he was robbed. The government also cites the trial judge's observation that Walker's testimony was very credible and that, in sharp contrast, appellant's testimony was "incredible" and "contradictory." But we cannot discount the possibility that appellant would not have testified if much or all of the very damaging evidence from the second entry had been suppressed. This is another reason why—if we assume arguendo that a motion to suppress evidence seized during the second entry would have succeeded—we cannot say that no prejudice ensued from trial counsel's failure to file such a motion.
To summarize the foregoing, given the record before us, we cannot affirm the trial court's blanket denial of appellant's § 23-110 motion.
In sharp contrast, appellant urges that a remand would not be appropriate. Appellant asserts that the government "thrice declined the opportunity to present evidence in the trial court on the precise issue that would be the subject of any remand." Appellant also argues that under Kimmelman, in the context of appellant's claim that his trial counsel was ineffective for failing to file a motion to suppress, it was the government's burden to justify the warrantless seizure of evidence (and thus, appellant implies, the government's burden to request an evidentiary hearing).
For the reasons that follow, we think the government has the better of the argument.
The procedural record is less one-sided and more complicated than appellant asserts. As appellant emphasizes, the government did repeatedly decline the opportunity for a hearing. But the prosecutor told the court initially that if the court was "not inclined" to "deny the 23[-]110 just
In appellant's view, Kimmelman makes clear that the government bore the burden of establishing that the evidence seized during the second entry need not have been excluded. Appellant argues that the government should not be permitted to avoid the consequences of its choice not to insist on an evidentiary hearing to elicit facts in support of its claim that the evidence was admissible. There are several reasons why we are not persuaded by this argument. First, the language in Kimmelman on which appellant relies ("the State . . . is entitled to an opportunity to establish that [the] search came within one of the exceptions we have recognized to the Fourth Amendment's prohibition against warrantless searches," 477 U.S. at 390-91, 106 S.Ct. 2574) appears to be dictum. The Court made its comment in the portion of its opinion in which it rejected respondent's argument that the record was "sufficiently complete to enable th[e] Court to apply Strickland's prejudice prong directly" without a remand. Id. at 390, 106 S.Ct. 2574. The Court upheld the decision of the U.S. Court of Appeals for the Third Circuit to remand on the ground that the record was "incomplete with respect to prejudice." Id. In addition to observing that "[n]o evidentiary hearing ha[d] ever been held on the merits of respondent's Fourth Amendment claim," id., the Court noted that "respondent may be unable to show that absent the evidence [that respondent claimed should have been suppressed,]there is a reasonable probability that the trial judge would have had a reasonable doubt as to his guilt." Id. at 391, 106 S.Ct. 2574. This shows that the Court's remark on which appellant relies was "not necessary for the disposition of the case," and therefore is "not binding on us." Holiday v. United States, 683 A.2d 61, 101 n. 16 (D.C.1996).
Further, this court has said that "while in a pretrial suppression hearing, the burden is placed on the government, the situation is reversed on collateral attack." Wright v. United States, 608 A.2d 763, 765 n. 7 (D.C.1992). Appellant denigrates this statement as a non-holding "unaccompanied by explanation or legal citation." Appellant may be correct that this court "has never focused [at any length] on the question of whether the government bears the burden of justifying a warrantless search or seizure when the issue is raised through an ineffectiveness claim for trial counsel's failure to file a motion to suppress." For present purposes, however, it is enough to observe that, in light of what we said in Wright, the government had good reason for thinking that appellant had the burden to show that the omitted motion to suppress would have resulted in exclusion of evidence.
Appellant's contention that, in any event, he met any burden he had of showing that a motion to suppress "would have been successful" merely by "demonstrat[ing] that the items were seized during a warrantless search" is not convincing. Under Clark, on the assumption that Officer Tighe's warrantless re-entry occurred while another officer justifiably was "still there," Tighe's re-entry to seize items that were in plain view during the initial entry did not involve any additional intrusion on privacy.
We also cannot agree with appellant that Giordenello requires us to recognize that a remand would be inappropriate here. Giordenello claimed that his arrest pursuant to a warrant was illegal because the complaint on which the warrant was issued was defective. 357 U.S. at 484, 78 S.Ct. 1245. He moved to suppress heroin found in his bag at the time of his arrest, but the district court denied his motion after an evidentiary hearing. Id. at 482, 78 S.Ct. 1245. In the trial court and on appeal, the government "defended the legality of petitioner's arrest by relying entirely on the validity of the warrant." Id. at 487, 78 S.Ct. 1245. The government did not prevail on that issue, as the Supreme Court agreed that the complaint was "defective in not providing a sufficient basis upon which a finding of probable cause could be made." Id. at 485, 78 S.Ct. 1245. However, before the Supreme Court, the government also advanced a new "principal contention": that "Texas law permit[ted] arrest without a warrant upon probable cause that the person arrested has committed a felony," and that on the basis of facts to which the arresting officer had testified in the district court, the officer "must be deemed, within the standards of Texas law, to have had the probable cause necessary to arrest petitioner without a warrant." Id. at 488, 78 S.Ct. 1245. The Court stated that these "belated contentions [were not] open to the Government" and refused "[t]o permit the Government to inject its new theory into the case at this stage." Id. The Court said that doing so would "unfairly deprive petitioner of an adequate opportunity to respond. . . because in the District Court petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine [the arresting officer] or to adduce evidence of his own to rebut the contentions that the Government" made for the first time in the Supreme Court. Id. It was in that context that the Court added that it would not be "sound judicial administration to send the case back to the District Court for a special hearing," because "[t]he facts on which the Government
The pertinent facts here differ significantly from those of Giordenello. Unlike in Giordenello, the theory that the government has advanced on appeal is not a new one. The government repeatedly argued in its trial court pleadings that the evidence seized during the second entry was admissible under the plain view doctrine even though the second entry itself was unlawful. Thus, the instant case is not one in which the government "failed to raise [the argument it advances on appeal] in a timely fashion during the litigation." Steagald v. United States, 451 U.S. 204, 208-09, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (relying on the fact that the government's argument that the defendant "lacked a reasonable expectation of privacy in the searched home" "was never raised by the Government in the courts below"). Second, in Giordenello, an evidentiary hearing was actually held, and, unaware of the government's "new" theory, Giordenello forwent an opportunity to cross-examine the arresting officer and was not alerted to the need to develop evidence to rebut the government's theory. In this case, by contrast, appellant declined the opportunity for a hearing even after receiving the government's July 2008 opposition to the § 23-110 motion, in which the government relied on the plain view doctrine. Appellant also was alerted to the need to adduce evidence pertinent to the issue in case the government were to have requested a hearing. Against this background, we are not persuaded that a remand for an evidentiary hearing would be an "exceptional course" or that we must have "special circumstances" to order a remand.
But even if we assume arguendo that "special circumstances" were a prerequisite to a remand, we could find them here, on several bases: because of the approach that the trial court took (i.e., merely assuming that the evidence would have been suppressed and focusing instead on the government's "overwhelming" evidence to conclude that suppression would not have made a difference in the outcome of appellant's trial; and affording the parties a last opportunity to have an evidentiary hearing regarding the first and third entries, but not the second); the lack of certainty about which party bore the burden to request a hearing to establish facts pertinent to resolution of the Fourth Amendment claim; and what appears to be appellant's misunderstanding about the government's having "abandoned" in the trial court its claim that some of the seized evidence was admissible under the plain view doctrine.
We conclude that a remand procedure such as we ordered in Brooks is the appropriate resolution. There we said that because the "incompleteness of the record preclude[d] a proper determination" of the admissibility of the evidence in question, 367 A.2d at 1311, we would remand the case for an evidentiary hearing.
Accordingly, we vacate the judgment of the trial court denying appellant's § 23-110 motion, and we remand the matter for further proceedings consistent with this opinion.
So ordered.
NEWMAN, Senior Judge, dissenting:
While I concur totally with the majority's holding that the trial court committed reversible error in denying Porter's post-trial motion under D.C.Code § 23-110, I emphatically dissent from its decision to remand for an evidentiary hearing on the alleged "plain view" issue.
This case was first argued with Judge Kramer as a member of the division. I was drawn to replace her when she retired, the case was set for reargument, and, at my request, the parties were directed by the court to file supplemental briefs to address four questions. They were:
The parties submitted briefs addressing each of the questions; I have found these briefs particularly helpful in addressing these questions.
The Supreme Court construed the provisions of 28 U.S.C. § 2106 in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). There, it established the jurisprudential standard which guides the exercise of discretion,
This standard has been followed by the various United States Courts of Appeal, see, for example, United States v. Archibald, 589 F.3d 289, 296 (6th Cir.2009); United States v. Nee, 261 F.3d 79, 86-87 (1st Cir.2001); United States v. Leonzo, 311 U.S.App.D.C. 134, 136, 50 F.3d 1086, 1088 (1995); EEOC v. Westinghouse Elec. Corp., 925 F.2d 619, 628-29 (3d Cir.1991); United States v. Thompson, 710 F.2d 1500, 1503-04 (11th Cir.1983); and the highest court of several states, see, for example, State v. Bell, 334 Md. 178, 638 A.2d 107, 114 (1994); and People v. Shuey, 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211, 219 n. 4 (1975), abrogated on other grounds in Segura v. United States, 468 U.S. 796, 799, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
Where our D.C. statute, rule or the like, is substantially identical to a federal counterpart, we look to the federal counterpart as persuasive authority. See, e.g., Kumar v. District of Columbia Water & Sewer Auth., 25 A.3d 9, 16-17 (D.C.2011) (holding that in interpreting the D.C. Human Rights Act we look to federal jurisprudence interpreting Title VII of the Civil Rights Act of 1964); United States v. Little, 851 A.2d 1280, 1282 n. 1 (D.C.2004) (concluding that in construing D.C.Code § 23-110 we rely on federal jurisprudence construing 28 U.S.C. § 2255); Wittenberg v. United States, 366 A.2d 128, 129, 132 & n. 5 (D.C.1976) (applying District embezzlement statute consistent with federal embezzlement statute); see also Appendix (listing our cases to like effect covering a vast variety of statutes and rules).
Our previous decisions which do not reference 28 U.S.C. § 2106 (2006) and such cases as Giordenello and its progeny when deciding remand questions pursuant to our authority under § 17-306, such as McFerguson v. United States, 770 A.2d 66 (D.C. 2001), Barnett v. United States, 525 A.2d 197 (D.C.1987), Brooks v. United States, 367 A.2d 1297 (D.C.1976), do not impair our ability to invoke 28 U.S.C. § 2106 now to construe § 17-306. See District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C.1996); Murphy v. McCloud, 650 A.2d 202, 205 (D.C.1994) ("The rule of stare decisis is never properly invoked unless in the decision put forward as precedent the
Contrary to the picture painted by the majority, the United States had a full and fair opportunity to litigate the plain view issue before Judge Ross. A more detailed recitation of the trial court proceedings than done in the majority opinion is necessary to show what occurred. In his § 23-110 motion, in so far as relevant to our decision, Porter challenged both the original warrantless entry into the premises where he, and the only other two persons present there were removed for identification proceedings and a third warrantless entry and search where the robbery proceeds at issue were seized. In its opposition to Porter's motion, the United States conceded that the third entry had been unlawful. As the United States stated with respect to this entry in its opposition to the motion: "[T]he police's re-entry with the victim into [the] house was not justified by the Fourth Amendment given that [Bruce] consented only to the police's initial entry into her home and to their request that they be permitted to check the home to see who was there. See Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("[A] suspect may of course delimit as he chooses the scope of the search to which he consents."). However, we disagree that this would have entitled defendant to any relief if a motion to suppress had been filed."
The government propounded two grounds for this contention: (1) "inevitable discovery," and/or (2) the items could have been seized under the "plain view" doctrine during the initial entry. Judge Ross rejected both these asserted bases.
Judge Ross scheduled a hearing on Porter's motion; prior to the hearing he caused his chambers to inquire of both parties whether either desired an evidentiary hearing.
After Judge Ross scheduled a hearing for April 15, 2009 (a hearing that, it appears, the parties contemplated might encompass an evidentiary hearing), the United States and Porter filed a "Joint Motion" to vacate that hearing. In that joint motion, the United States reiterated what it had said in its Opposition to Porter's Motion to Vacate Sentence motion ("[T]he police's re-entry . . . was not justified by the Fourth Amendment."), and in its Sur-Reply to Porter's Reply to its Opposition ("[W]e maintain our view that the second search was illegal."), by yet again informing Judge Ross that the government was not now claiming that the third entry and search was legal and further vowing that "[t]his remains and will remain, the position of the United States" (emphasis added).
The joint motion further stated: "The parties recently have conferred about this matter and agree that the remaining issues to be resolved are legal ones—i.e. the same issues that were before the Court at the conclusion of the December 3, 2008 hearing. Because resolution of those issues does not require the taking of evidence, the parties jointly request that the Court vacate the April 15, 2009, hearing in this case."
The record thus indicates that wherever the government asserted the plain view rationale, Porter pointed out to Judge Ross the need for an evidentiary hearing so that he could "confront the witnesses." Each time (according to my count, at least "thrice") in the face of such assertion of rights, the United States eschewed such an evidentiary hearing, indicating to Judge Ross and to Porter that the United States was willing to rely ("gamble"?) on Judge Ross's willingness to deny the motion on the ground that both the majority and I now reject.
Sound jurisprudence cautions against remands for such "second bites" as the majority orders here. The evidence on which the government seeks to rely to uphold the search was fully known to the government at the time of the post-trial hearing. Because this is so, we should say as the U.S. Court of Appeals for the Third Circuit did in EEOC v. Westinghouse Electric Corp.:
Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (footnotes omitted) (internal quotation marks omitted).
In our prior cases where we have remanded for further proceedings relating to suppression issues such as present in this case, there always had been evidentiary hearings on the suppression motions. This is so in each of the comparable cases I have found, McFerguson v. United States, 770 A.2d 66 (D.C.2001); Martin v. United States, 567 A.2d 896 (D.C.1989); Barnett v. United States, 525 A.2d 197 (D.C.1987); Brooks v. United States, 367 A.2d 1297 (D.C.1976). In each of those cases we determined that the trial court had failed to make adequate findings of fact based on that evidentiary record to enable us to perform our appropriate appellate review. We remanded for such further findings of fact.
The "plain view" doctrine was explicated by Justice Stewart, writing for the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There the Court enunciated a number of points critical to our consideration.
Coolidge, supra, 403 U.S. at 465-71, 91 S.Ct. 2022 (footnotes and citations omitted); see also Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
Justice Scalia, writing for the Court, further explicated the doctrine in Hicks. There he held that to seize items under the plain view doctrine, probable cause to seize the item is required. "To hold otherwise would be to cut the plain view doctrine from its theoretical and practical moorings." Hicks, supra, 480 U.S. at 326, 107 S.Ct. 1149.
A further requirement for application of the plain view doctrine is that the evidence must be seized during a constitutionally permissible entry. Michigan v. Tyler, 436 U.S. 499, 511-12, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (concluding evidence seized during unlawful entry into premises is obtained in violation of Fourth Amendment); Coolidge, supra, 403 U.S. at 443, 470-71, 91 S.Ct. 2022 ("[W]here the police know in advance the location of the evidence and intend to seize it, the situation is altogether different[, and a warrant is required.]"); accord, Douglas-Bey v. United States, 490 A.2d 1137, 1138-39 (D.C.1985); Shamaeizadeh v. Cunigan, 338 F.3d 535, 549 (6th Cir.2003) ("Although the plain view doctrine would likely have justified Wiles's seizure of immediately incriminating drug paraphernalia during the first search, it clearly cannot justify the second and third searches."); DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir.1993) ("The fact that the horses had been seen in plain view on the previous day did not insulate this second separate warrantless entry and seizure." (citing Michigan v. Tyler)).
The United States in its supplemental brief before this court and during reargument seeks to suggest, as does the majority opinion, that the question of whether a police officer was already present in the premises at the time the police made the third entry accompanied by the victim is somehow relevant to the lawfulness of the seizures during that entry. The appropriate answer to this contention is a straightforward one. The United States conceded below, at least three times, as its obligation for integrity in advocacy compelled it to do, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (duty of United States Attorney in criminal prosecution), see also Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (same), Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (same), that the third entry was constitutionally unlawful. Even if there was an officer still remaining within the premises when this entry was made, that officer's presence there was no longer constitutionally permissible, the consent for his/her presence having expired when all the persons in that premises had been removed therefrom for identification. As a result of that removal and identification process both Porter and Bruce had been arrested while the third person, Hunt, had been exculpated for the crime, but arrested on unrelated charges. Only two persons having been implicated by the victim as having been involved in the scheme to rob him at gun point and the police having verified that no other possible miscreant was on the premises, no constitutionally valid basis existed for an officer to remain within the premises.
The government's position was again plainly and clearly enunciated in its brief filed pursuant to our re-briefing order. There it stated:
The government urged that the illegality of the seizing entry did not render the seized items inadmissible in spite of the exclusionary rule announced in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). For authority for this position the government cites to Clark v. United States, 593 A.2d 186, 197-98 (D.C.1991), and Settles v. United States, 615 A.2d 1105, 1112 (D.C.1992). At reargument, in response to questions, the government made explicit its contention that the illegality of the seizing entry is constitutionally irrelevant and its contention that Clark is authority for this proposition.
The facts of Clark bear repeating. In response to a call of a shooting, Officer Cole arrived at Clark's apartment at 9:50 p.m. He went into the bedroom where the shooting had occurred and observed in plain view decedent's body, a pistol with which she had apparently been shot, and an ammunition clip containing unspent bullets. Cole remained on the premises to preserve the crime scene. At approximately 10:20 p.m., an evidence technician arrived, entered, photographed the body, and retrieved the pistol and ammunition clip, i.e., the "plain view" evidence. It is this entry by the evidence technician while Cole was still lawfully on the premises that the government reads our opinion in Clark to have held to be a constitutionally unlawful entry. Query? Would the coroner's office personnel entering to retrieve the dead body, while Cole remained on the premises, have been a constitutionally unlawful entry? Obviously not. Nor was the entry by the evidence technician. There was no additional intrusion on any privacy
323 U.S. 126, 132-33, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (emphasis added); accord, Kraft v. Kraft, 155 A.2d 910, 913 (D.C.1959).
The majority ultimately eschews such a reading of Clark and Settles. This is not surprising given the teachings of Coolidge, supra, 403 U.S. at 470-71, 91 S.Ct. 2022 ("[W]here the police know in advance the location of the evidence and intend to seize it, the situation is altogether different[, and a warrant is required.]"); Shamaeizadeh, supra, 338 F.3d at 549 ("Although the plain view doctrine would likely have justified Wiles's seizure of immediately incriminating drug paraphernalia during the first search, it clearly cannot justify the second and third searches."); DiCesare, supra, 12 F.3d at 978 ("The fact that the horses had been seen in plain view on the previous day did not insulate this second separate warrantless entry and seizure." (citing Michigan v. Tyler)). In this regard, consider by way of contrast, the doctrine of inevitable discovery. See McFerguson, supra, 770 A.2d at 74-77 (holding that for inevitable discovery, "the lawful process which would have ended in the inevitable discovery [must] have . . . commenced before the constitutionally invalid seizure." (alterations in original) (internal quotation marks omitted)).
Unable to justify a remand on the government's flawed reading of Clark and Settles, the majority resorts to what, in my view, is an impermissible re-writing of the government's repeatedly given concessions. The majority says:
Neither in the trial court, orally or in writing, nor in this court, orally or in writing, has the government ever parsed its concessions in such a fashion. Rather, as is shown by its opposition to Porter's motion to suppress in the trial court, and its brief and argument before us, the government's concessions relating to the police re-entry with or without the victim was based solely on the expiration of consent, citing as it did to Florida v. Jimeno, 500 U.S. at 252, 111 S.Ct. 1801. Likewise, in its brief filed prior to re-argument, the government stated "although the police re-entry with the victim into Bruce's house was not justified by the Fourth Amendment given that she had consented only to the police initial entry. . . ." (emphasis added). I repeat, at no stage of these proceedings has the government suggested
In rejecting the majority's attempt to re-write the government's concessions, I am reminded of the quote from Senator Sam Erwin of North Carolina in retort to John Ehrlichman during the Senate Watergate Hearings: "Because I understand the English language. It is my mother tongue."
The offense in this case occurred in 2003. The remand hearing in this case, which the majority authorizes, if held, will occur in 2012, approximately nine years after the offense and a number of years after the hearings before Judge Ross. If such a hearing is held, major evidentiary and proof problems will arise. Can the victim be located and produced to testify? Are the police officers still available? Given the passage of time, and its natural impact on human memory, what is the value of this testimony in 2012 about what they recollect about events occurring in 2003 pertaining to: (1) what was taken from the victim; (2) what the victim told the police was taken from him; (3) what did the police see during the first entry; (4) was this evidence in plain view during the first entry; (5) was such sighting during the constitutionally permissible period of the first entry; (6) was the incriminating nature of this evidence readily apparent; (7) did probable cause exist to seize this evidence at a constitutionally permissible period of first entry presence; (8) did they have to move items to see other items, see, for example, Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); and (9) which items are excludable, even under the majority opinion, given the participation of the victim. This difficulty is particularly acute given the apparent dearth of written documents that could be used to "refresh" the witnesses' recollection, even assuming such "refreshing" could, in fact, occur so belatedly.
The apparent answer of the majority to these evidentiary hurdles seems to be that they work to the detriment of Porter's burden. The majority does so by declaring that portion of Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), which speaks directly to the issue before us to be dictum. I disagree. While the Court, earlier in the Kimmelman opinion, discussed a defendant's burden to establish both prongs of a
In light of all this, I will not dwell further in a rebuttal of the majority's analysis of who had the burden of proof, etc. on the suppression portion of this post-trial motion.
My principal concern leading me to emphatically dissent in this case is not with the individual litigant, Porter. I am satisfied that a proper application of the plain view doctrine and the constitutional hurdles existing in establishing the admissibility of the challenged evidence, as well as the evidentiary problems I have noted, will likely cause the government not to seek a further hearing and to concede the result compelled by Michigan v. Tyler and their concessions pertinent thereto. Further, if such a hearing were held, I am sanguine that the constitutional issues which I have discussed will lead the trial court to reject the plain view doctrine as inapposite in this case as did Judge Ross previously. If I am wrong on both these points, I am confident that future appellate review by another division of this court will vindicate Porter's constitutional rights.
Rather, the concerns which prompt me to so strongly dissent are jurisprudential, relating to the integrity, propriety, and efficiency of our judicial process. These concerns have been central to me and have motivated my service on this court since I joined it on October 14, 1976, over thirty-five years ago. See, e.g., Davis v. United States, 564 A.2d 31 (D.C.1989) (en banc) (standards of appellate review); United States v. Felder, 548 A.2d 57 (D.C.1988) (holding that review is de novo in questions of collateral estoppel); Johnson v. United States, 398 A.2d 354 (D.C.1979) (exercise of discretion and appellate review thereof). It is these concerns that caused me to request the court pose to the parties the questions we did for supplemental briefing and argument. It is to these concerns
1. Statutes
2. Rules
In Part C.2. infra, we discuss why, at least on the present record, we are unwilling to accept appellant's argument that blanket suppression of all of the evidence seized during the second entry would have been required.
Kimmelman, 477 U.S. at 390-91, 106 S.Ct. 2574.
We also observe that, whether dictum or not, the statement in Kimmelman on which appellant relies does not imply that, here, the government bore the burden of proving facts pertinent to whether the plain view doctrine is applicable. Again, the statement in Kimmelman suggests that, in the context of an ineffective-assistance-of-counsel motion, the government has the burden to establish facts necessary for the applicability of "one of the exceptions . . . to the Fourth Amendment's prohibition against warrantless searches." 477 U.S. at 390-91, 106 S.Ct. 2574 (italics added). However, as the Supreme Court recognized in an opinion issued just a few years prior to Kimmelman, "`[p]lain view' is perhaps better understood, . . . not as an independent `exception' to the Warrant Clause, but simply as an extension of whatever the prior justification for an officer's `access to an object' may be." Texas v. Brown, 460 U.S. 730, 738-39, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (explaining that "`plain view' provides grounds for seizure of an item when an officer's access to an object has some prior justification under the Fourth Amendment[]"). In other words, notwithstanding courts' (including this court's) frequent reference to the plain view "exception" to the warrant requirement, the plain view doctrine is not "one of the exceptions" to which the Court made reference in Kimmelman.
It is only fair to note that although we agree and hold that Judge Ross erred in his ultimate ruling, he did all that a judge could be expected to do to afford the United States an opportunity to proceed with an evidentiary hearing. The United States elected to eschew these opportunities. As I set forth later in my discussion of Michigan v. Tyler, supra, given the concessions by the United States, Porter had no need for an evidentiary hearing.
