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03/21/80 United States of America v. Charles R. Brown


March 21, 1980






Before: BAZELON, Senior Circuit Judge, ROBB, Circuit Judge, and BRYANT,* Chief Judge, United States District Court for the District of Columbia.


Appeals from the United States District Court for the District of Columbia (D.C. Criminal Nos. 77-00451 and 77-00451-01) 1980.CDC.63



Opinion for the Court filed by Senior Circuit Judge BAZELON.

Dissenting opinion filed by Circuit Judge ROBB.

BAZELON, Senior Circuit Judge : In No. 78-1646 Charles Brown appeals his conviction following a jury trial for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841 (1977); in No. 77-2106 he appeals the denial of his motion for a new trial based upon the alleged incompetence of trial counsel in rejecting his suggestion to file a pretrial suppression motion. Because we find that Rule 12 of the Federal Rules of Criminal Procedure does not bar consideration of appellant's suppression claim, we remand for consideration of that issue. *fn1 I.

According to the government's testimony at trial, at approximately 3:15 pm on the afternoon of July 15, 1977, three police officers observed Brown in a kneeling position peering through the mail slot of the door to the basement apartment at 1500 T Street, N.W. Their suspicions aroused, Officers Robinson and Galante dressed in plainclothes but with their guns drawn, alighted from their patrol car and approached appellant. As Officer Robinson reached the first of five steps down to the basement door, Brown looked over his shoulder, stood up, and began knocking on the door with his back to the approaching officers. At the same time, he reached out with his left hand and either "shoved" or "threw" *fn2 a small paper bag into a bush in the permanent brick planter box beside the door, eighteen feet from the nearest public sidewalk. Officer Robinson, who was by now only a foot from Brown, immediately retrieved the bag from the bush and examined its contents. Finding several smaller plastic bags containing a white powder, Robinson placed Brown under arrest. In a subsequent search of appellant at the station house, the police recovered four empty glassine bags, a bottle cap cooker, a syringe, and a piece of paper with various handwritten notations.

At trial, the government introduced into evidence the paper bag and the items found on Brown at the station house without objection from appellant's court-appointed counsel. Government narcotics experts then testified that the paper bag contained over 100 grams of roughly 2% heroin, the bottle cap and syringe were often used by addicts to inject narcotics, and that the sheet of paper appeared to be a list of people to whom drugs were sold, including the prices and quantities purchased.

In response, the defense called two witnesses. Kenneth Williams testified that he lived in the house where the arrest took place and that Brown, a friend of his, frequently visited, calling to him through the mail slot in order to be heard over the stereo. *fn3 Another friend, Michael Gaskins, testified that he had been with Brown immediately before his arrest, but had not seen the brown paper bag that was later seized. *fn4

Brown was convicted of possession of heroin with intent to distribute, and this court appointed different counsel to represent him on appeal. *fn5 Upon reviewing the trial transcript, appellate counsel concluded that the drugs, tally sheet and other evidence seized from Brown should have been excluded as the fruits of an illegal search and seizure, and that trial counsel's failure to move to suppress this evidence constituted ineffective assistance. In accordance with the procedure contemplated in United States v. DeCoster, *fn6 appellate counsel thereupon filed a motion for a new trial in the district court. *fn7

At the hearing that followed, trial counsel as the only witness testified that he rejected Brown's suggestion prior to trial to file a suppression motion because he "thought the motion would have been frivolous. ..." *fn8 Based primarily on some research for a motion he had filed in a prior case, counsel said he had concluded that the paper bag would be admissible as abandoned property. *fn9 He conceded, however, that there was no tactical reason for not seeking to suppress the evidence and that the defense strategy would not have been harmed or altered in any by such a motion. *fn10

At the close of the hearing, the district court denied appellant's motion for a new trial, concluding that counsel's decision not to seek exclusion of the government's evidence was "the product of deliberate and informed decision, not oversight or inadvertence." *fn11 Brown's appeal from that decision was then consolidated with his appeal from conviction and sentencing. II.

In both appeals Brown renews his claim of ineffective assistance of counsel. It is clear, however, that the gravamen of his complaint is that illegally obtained evidence was admitted against him at trial, for he supports his ineffective assistance claim solely by citing trial counsel's failure to file a pretrial suppression motion. *fn12 Rather than address the separate constitutional question of ineffective assistance, we therefore consider whether Brown may still raise his suppression claim directly.

Rule 12 of the Federal Rules of Criminal Procedure provides that failure to make a suppression motion before trial "shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver." *fn13 Because trial counsel did not file a suppression motion before trial, the question presented is whether Brown can now satisfy the rule's "cause" exception. *fn14

In United States v. Davis, 411 U.S. 233 (1973), the Supreme Court identified two elements in this "cause" exception. *fn15 Faced with a federal prisoner's belated objection to the composition of the grand jury that indicted him, the Court interpreted Rule 12 to require a demonstration of both "cause" for his failure to object at trial and "actual prejudice" from the alleged constitutional violation. *fn16 Although the Court has applied the same twostep analysis in subsequent cases to determine whether relief is warranted, *fn17 it has "[left] open for resolution in future decisions the precise definition of the 'cause'-and-'prejudice' standard," *fn18 stating only that the test is to be "narrower" than the "deliberate bypass" test of Fay v. Noia, 372 U.S. 391 (1963). *fn19 For guidance in interpreting "cause-and-prejudice" we therefore turn to relevant case law and the underlying policy of Rule 12. *fn20

The principle of procedural waiver embodied in Rule 12 is designed to encourage pretrial rulings on matters capable of resolution independently of trial. *fn21 Courts accordingly have barred relief under the rule where failure to raise an evidentiary objection can be identified as a rationally-based defense strategy. *fn22 At the same time, courts have recognized that Rule 12, like the other federal rules, was intended to secure "the just determination" of criminal proceedings. *fn23 The rule thus does not require courts to relinquish traditional vigilance against violations of constitutional rights, *fn24 nor should it be interpreted to require waiver of constitutional rights where it would be manifestly unfair to the defendant.

A. Cause *fn25

With these considerations in mind, we can discern at least two categories of explanation to show the "cause" for relief under Rule 12: *fn26

1) Cause exists when the information underlying a constitutional claim is unavailable at the time the claim should be raised . A defendant cannot fairly be held to have waived a constitutional right where it would have been impossible to assert the right at an earlier time. This category of cause should include both factual discoveries -- for example, juror misconduct revealed after trial *fn27 -- and resolution of legal matters that are indeterminate at the time of trial. *fn28

2) Cause exists when the record reveals attorney error affecting substantial constitutional rights of the defendant . The Supreme Court has observed that the assistance of counsel is "one of the safeguards... deemed necessary to insure fundamental human rights of life and liberty." *fn29 When a lawyer's performance does not fall "within the range of competence demanded of attorneys in criminal cases," *fn30 a defendant clearly has cause for relief. *fn31 Even when counsel's performance is generally competent, however, he may, through oversight or ignorance, fail to present a substantial constitutional claim. Binding a defendant to the materially deficient judgment of his attorney would be a senseless penalty in most cases because most defendants lack the legal sophistication to monitor their attorney's performance. *fn32 Whether "born of the inadvertence, negligence, inexperience, or incompetence of trial counsel," *fn33 serious attorney error should therefore be considered in assessing whether relief is warranted. *fn34

B. Prejudice

In Davis, the Supreme Court added to the "cause" provision of Rule 12 the requirement that a defendant demonstrate "actual prejudice." *fn35 This second requirement bars review of constitutional objections that would prove inconsequential and, by focusing on the severity of the deprivation imposed on the defendant, permits greater latitude for relief when confronting miscarriages of justice. *fn36

In application, the "actual prejudice" test would seem to be analogous to the "harmless error" doctrine. *fn37 Thus, in Wainwright v. Sykes, 433 U.S. 72, 91 (1978), the Court refused to grant relief from waiver because "[the] other evidence of guilt presented at trial... was substantial to a degree that would negate any possibility of actual prejudice. ..." *fn38 We may therefore assume that "actual prejudice" should be found whenever there is a reasonable possibility that the disputed evidence or procedure affected the outcome of trial. *fn39 III.

If the evidence objected to by appellant was acquired unlawfully, its introduction at his trial cannot reasonably be deemed harmless. *fn40 Brown thus has no difficulty in surmounting Rule 12's "prejudice" requirement. The critical inquiry is whether the record provides a basis for finding the requisite "cause" of Rule 12. To decide this question, we must examine the reasonableness of his trial counsel's failure to file a suppression motion.

The police officers who retrieved and examined the paper bag at the scene of Brown's arrest did not have a warrant. The legality of their actions is therefore subject to the Supreme Court's instruction "that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Each of these exceptions has bee "jealously and carefully drawn" so as not to frustrate "the essential purpose of the fourth Amendment to shield the citizen from unwarranted intrusions into his privacy." Jones v. United States, 357 U.S. 493, 498-99 (1958).

In the present case, the officers did not obtain appellant's consent prior to searching the bag, *fn41 nor did they seize the bag incident to appellant's arrest. *fn42 Similarly, the search cannot be justified on the basis of the special exceptions to the warrant requirement developed for automobiles, *fn43 border crossings, *fn44 licensed premises, *fn45 or objects in plain view. *fn46 Further, at oral argument, the government conceded the search could not be sustained under the "stop-and-frisk" doctrine of Terry v. Ohio . *fn47

The only remaining basis for the search is thus a theory of "abandonment": that the defendant had "so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search." *fn48 To uphold the search on this basis, the officers conducting the search must have been aware of objective facts indicating the requisite intent to abandon. *fn49

In the prototypical abandonment case, a suspect being chased by the police throws or drops an incriminating item into the street or other publkc place and later disavows any interest in it. *fn50 Based on the suspect's words and deeds, *fn51 courts have found the police justified in concluding that the suspect has relinquished any expectation of privacy in the abandoned item.

In the present case the abandonment question has never been squarely addressed, *fn52 and appellant was denied the opportunity to give his own account of the search when trial counsel failed to file a suppression motion. *fn53 But from the evidence presented at trial, it would appear that the seizure contested by appellant differed in material respects from the prototypical case of abandonment. The government witnesses testified that Brown was kneeling before the front door mailslot when they first noticed him; as they approached, he turned his back, began knocking on the door, and "shoved" or "threw" the bag into a planter next to the door; the officers then seized the bag without asking Brown whether he had any interest in it. Thus, according to the government's testimony, Brown was not in flight or under arrest at the time of the alleged abandonment, nor was he on public property, nor did he disavow an interest in the bag. From this record alone, it would appear that Brown may have been attempting to hide the bag, see Work v. United States, 243 F.2d 660, 662 (D.C.Cir. 1957), or to free his hands to open the door, either of which would be inconsistent with an intent to abandon. Resolution of this uncertainty requires a focused inquiry. *fn54

We are therefore convinced that trial counsel made a serious misjudgment in not filing a suppression motion. Plainly, a motion in these circumstances would not have been frivolous; if anything, the facts disclosed by the record indicate that appellant's suppression claim may well be substantial. Because counsel testified there was "no tactical advantage gained" by not filing a motion, we must conclude that his decision was based upon an inadequate understanding of the relevant case law. *fn55

We are loathe to visit upon Brown this error by his attorney, particularly because Brown himself suggested filing the suppression motion. Elsewhere, when attorneys have failed to lodge critical motions because of oversight or misunderstanding, courts have found ineffective assistance of counsel *fn56 or plain error *fn57 in order to provide relief. We find that this record establishes the requisite "cause" for relief under Rule 12, and accordingly hold that Brown has not waived his right to contest the introduction of the seized items at trial. *fn58 IV.

To give appellant the opportunity to present his suppression claim, we remand the record to the district court. This procedure will not only offer appellant his first opportunity to take the stand on the suppression issue, but will also permit the government, which has never been called upon to justify the contested search, *fn59 to introduce evidence in support of its theory of abandonment. *fn60

We emphasize that our holding today is limited to the finding that Rule 12 does not bar appellant from raising his suppression claim. *fn61

Remanded for further proceedings consistent with this opinion .


ROBB, Circuit Judge, dissenting : I dissent.

On the afternoon of July 5, 1977 Officers Harvey, Robinson and Galante of the Metropolitan Police Department were patrolling in a police vehicle on T Street, N.W., in the City of Washington. Harvey was driving. They saw the defendant Brown in a kneeling position, peering through the mail slot in the door to a basement apartment at 1500 T Street. Harvey stopped the police car and Officers Robinson and Galante got out and went up the walk toward Brown. As the officers approached, identifying themselves as police, Brown stood up, looked over his shoulder at them, and "started knocking on the front door." At this time, when the policemen were about a foot away from him, Brown "threw" (Officer Robinson's testimony, TR. 66, 67, 96) or "shoved" (Officer Galante's testimony, TR. 105, 106) a brown paper bag into a bush growing in a tree box to the left of the front door. The bush was approximately 2 feet 6 inches tall and the paper bag lodged in its lower branches. Officer Robinson recovered the bag which contained 58 glassine bags of heroin. The heroin was divided evenly among the bags and had a "street value" of approximately $5,000. When Brown was searched at the stationhouse the police found in his shirt pocket a sheet of notebook paper recording names of persons to whom drugs had been sold and the amounts of money owed for the drugs. Brown also had four empty glassine bags in his pants pocket.

Before trial the government disclosed these facts to counsel for the defendant. Confronted with the facts counsel, an experienced criminal lawyer, decided that a motion to suppress would be frivolous.I think he was right. It is plain to me, as it was to trial counsel and the district judge, that Brown wanted to get rid of his bag of heroin; as the district judge put it he "wanted to disassociate himself from the bag completely." His purpose was like that of any narcotics dealer or gambler who flushes incriminating evidence down the drain; no drain being available he dumped his drugs in the bush. In these circumstances counsel would have suborned perjury had he caused Brown to testify that he did not intend to abandon the paper bag. What the majority calls Brown's "first opportunity to take the stand on the suppression issue" will be an invitation to lie in support of a dishonest defense.

I would affirm the judgment of the District Court.


** Student Counsel.


* Sitting by designation pursuant to 28 U.S.C. § 292(a).

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