Before: BAZELON, Senior Circuit Judge, ROBB, Circuit Judge, and BRYANT,* Chief Judge, United States District Court for the District of Columbia.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
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
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
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 ...