BILES v. UNITED STATES

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District of Columbia Court of Appeals.

Lamont A. BILES, Appellant, v. UNITED STATES, Appellee.

Nos. 11–CM–612, 11–CM–613.

Decided: October 23, 2014

Before THOMPSON and BECKWITH, Associate Judges, and FARRELL, Senior Judge. Anna B. Scanlon, for appellant. David B. Goodhand, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and John P. Mannarino and James A. Petkun, Assistant United States Attorneys, were on the brief, for appellee.

On January 8, 2011, and then again on February 4, 2011, police arrested appellant Lamont Biles for peddling counterfeit DVDs at the Florida Avenue flea market in northeast Washington, D.C. Mr. Biles was later convicted, in a separate bench trial for each incident, of attempted deceptive labeling in violation of D.C.Code § 22–3214.01(d)(1) (2001).

On appeal from his convictions, Mr. Biles contends that the government's midtrial disclosure in the first case of facts indicating that police had illegally searched Mr. Biles's backpack and his stash of DVDs kept him from filing what would have been a winning suppression motion and violated his right, under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), “to use the favorable material effectively in the preparation and presentation of [his] case,” Miller v. United States, 14 A.3d 1094, 1107 (D.C.2011) (quoting Edelen v. United States, 627 A.2d 968, 970 (D.C.1993)). This late disclosure, he says, “continued to prejudice the defense” in his second case. The government counters that it is not clear or obvious, under the plain-error standard of review it urges us to use, that Brady applies to suppression hearings; that in any event Mr. Biles obtained the information in time to make good use of it; and that Mr. Biles's Fourth Amendment argument fails on the merits because he had no reasonable expectation of privacy in the items that were searched. Finding the government's arguments untenable, we reverse Mr. Biles's convictions.

I. Background

Mr. Biles's bench trial for the January 8 incident began in Superior Court on April 11, 2011. Officer William Wilson of the Metropolitan Police Department (MPD) testified that he was walking the flea market in plain clothes, “trying to observe any criminal activity,” when Mr. Biles approached and asked if he wanted to buy any DVDs. Officer Wilson made “eye to eye contact” with Mr. Biles, “told him no, I don't need any DVDs,” and then reported the incident to Officer Diane Davis, a uniformed MPD officer also on patrol. Officer Davis testified that when she approached Mr. Biles shortly thereafter, he “just indicated he was not selling DVDs.” She arrested and handcuffed Mr. Biles and, “[w]ithin a moment” of the arrest, received a phone call from a paid confidential informant who could see the officers.

Over the phone, the informant directed Officer Davis to a box beside “door number two”—one of three doorways into the market building, located approximately eight feet from where Mr. Biles had been standing—and stated, “That Mr. Biles, that's where he stores his movies.” A stack of crates approximately three feet high sat next to the doorway, and as Officer Davis testified, a “box was sitting on top of the crates, and there was a knapsack bag that was on top of the box.” Lifting up the backpack, Officer Davis discovered DVDs in the box. Opening the backpack, she found Mr. Biles's personal identification card and his Social Security card.1 A government expert later testified that the DVDs were counterfeit.

When Officer Davis testified that “[t]he source phoned me” and “directed me to the location of the box,” defense counsel asked to approach and objected that “[t]here's no mention whatsoever” in the pretrial discovery materials “of a source giving any kind of direction,” and that “we've never heard anything of it before this testimony.” Defense counsel argued that “I didn't have an opportunity to do motions” or to “investigate it,” and asked the court to “exclude any evidence [found] as a result of the tip.” When the prosecutor said that he himself had learned about the informant “maybe 10 minutes before this case began” and had not realized that the informant had not been disclosed before trial “as part of police paperwork,” the court told the prosecutor that “that was three hours ago and you should have told counsel as soon as you found out,” “because she may have had a motion available to her.” When the prosecutor proposed limiting Officer Davis's testimony, the trial court interrupted that “[w]ell, you really can't, because it's how she got to the box,” and continued:

The court: “I mean it's fundamental because it's what led them to the box. Otherwise they wouldn't have gone to the box.”

The prosecutor: “Right.”

The court: “I mean but for that phone call.”

The prosecutor: “That's right.”

The court: “Because it's not at all the way it was posited with respect to the opening [statement] that they just found it incident to the arrest, like it was right there by him․”

The trial court nevertheless rejected the defense's oral motion to suppress the fruits of the informant's tip on two grounds—first, that “the confidential informant was not the reason why the defendant was stopped and about to be arrested,” and second, that “the defendant has never asserted the DVDs were his. So there's a standing issue. I mean the only thing to suppress is the DVDs, and he's never asserted they're his, and so he doesn't really have standing to, I think probably to try to suppress it.” The trial court concluded that “I think that sort of closes the door on anything further with respect to the confidential informant.” The court then allowed the government to finish its case in chief and postponed the remainder of the trial to give the defense the additional time it requested to investigate the informant. The defense presented no witnesses when the trial resumed on May 4, 2011.

The trial court found Mr. Biles guilty of attempted deceptive labeling. In its findings of fact, the court noted that the backpack, which “had Mr. Biles's personal information in there,” was “covering up the top of the DVDs, protecting it from sight.” Mr. Biles was guilty, the court found, even though he “didn't have the DVDs on him”—much like some “drug transactions,” where “somebody is going to keep their stash nearby where they know it's safe and in their line of sight so it can't be taken by anybody else, but also not on them so they can walk away and not be held accountable.” The court further credited Officer Wilson's testimony that Mr. Biles “looked right at him and said I have DVDs for sale.”

In a separate trial on April 18, 2011, Mr. Biles was convicted of attempted deceptive labeling for the February 4 incident, based largely upon Officer Davis's testimony that she linked the DVDs found in that case to Mr. Biles based on her observation of Mr. Biles's backpack near them—a backpack she knew was Mr. Biles's because of the identification cards found inside during the January 8 search. Mr. Biles appealed both convictions.

II. Analysis

Mr. Biles argues that his first conviction must be reversed on grounds that the government's midtrial disclosure on April 11—specifically, that Officer Davis had uncovered the DVDs and his identification cards through a warrantless search of his belongings—violated his due process rights under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The Due Process Clause of the Fifth Amendment to the U.S. Constitution requires that the government timely disclose to the defense information that is “favorable to an accused,” id. at 87; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), whether the accused requests it or not, Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (citing United States v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The government's disclosure obligations encompass information known to police even if unknown to the prosecutor. Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

“There are three components of a true Brady violation”: the disputed information must be (1) “favorable to the accused, either because it is exculpatory, or because it is impeaching,” (2) “suppressed” by the government, “either willfully or inadvertently,” and (3) material. Strickler, 527 U.S. at 281–82. Information is material when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A reasonable probability of a different result occurs when the suppression “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678). When the information is favorable, suppressed, and material, we must reverse “irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. The burden is on Mr. Biles to prove a Brady violation. Mackabee v. United States, 29 A.3d 952, 959 (D.C.2011).

A. Whether the Information Was Favorable

The government's sole argument on the question whether Officer Davis's testimony about the discovery of Mr. Biles's belongings was “favorable” for Brady purposes is that Mr. Biles did not sufficiently preserve his Brady claim, and that under the plain-error standard of review of United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), he cannot demonstrate that it is “clear” and “obvious” that Brady applies to suppression hearings.2 The government does not argue that the late disclosure of information material to the outcome of a pretrial suppression hearing cannot violate Brady, aside from saying the law is not clear. Instead, the government leaves for the second and third prongs of Brady its fallback arguments, contending that “even if this Court concludes that appellant has preserved his Brady claim, the claim still fails because appellant cannot show that the government suppressed the material or a reasonable probability of a different outcome.”

The record in this case makes sufficiently clear that the trial court was fairly apprised of the nature of Mr. Biles's claim. When Officer Davis first testified that an informant had phoned her and directed her to the DVDs, defense counsel asked the court to exclude the evidence stemming from this call, stating that there was “no mention whatsoever” of this information in pretrial discovery materials, that she had “never heard anything of it before this testimony,” and that she “didn't have an opportunity to do motions” or “an opportunity to do anything on this.” The trial judge then described the withheld information as “fundamental because it's what led them to the box” and chided the prosecutor that he “should have told counsel as soon as [he] found out” because Mr. Biles's counsel “may have had a motion available to her .” While counsel did not invoke Brady by name, the claim she was making had the clear hallmarks of a Brady claim—that the government failed to disclose information favorable to the accused that would have made a difference to the outcome of the proceeding—and it is preserved for appellate review. See, e.g., Parsons v. United States, 15 A.3d 276, 279 (D.C.2011) (holding that defense counsel's request to exclude seized drugs, combined with counsel's closing argument that evidence of the informant's reliability was “insufficient and not correct,” was enough to preserve for appeal a Fourth Amendment claim); Tindle v. United States, 778 A.2d 1077, 1081 (D.C.2001) (holding that Mr. Tindle preserved his claim under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), even though neither the attorneys nor the trial judge mentioned Edwards ).

Turning to the merits, the government, again, identifies no reason Brady should not apply to the failure to disclose information material to suppression hearings, and we likewise find no basis in our case law. We have repeatedly held that information tending to show the inadmissibility of government evidence is “favorable” evidence that must be disclosed under Brady. In Gaither v. United States, 759 A.2d 655 (D.C.2000), amended by 816 A.2d 791 (D.C.2003), we remanded for findings on whether the government had withheld Brady information pertaining to suggestive identification procedures. In Smith v. United States, 666 A.2d 1216, 1224–25 (D.C.1995), we held that the government violated Brady by failing to disclose a witness statement that undermined the admissibility of a government witness's purportedly spontaneous utterance. And in James v. United States, 580 A.2d 636 (D.C.1990), we similarly evaluated under Brady a late-disclosed witness statement that “cast[ ] serious doubt” upon the trial court's finding that another statement it admitted “was truly spontaneous.” Id. at 638.

And while we have never had occasion to explicitly address whether information is “favorable” for Brady purposes if it relates to a defendant's claim at a Fourth Amendment suppression hearing rather than at trial, we have assumed as much in at least one case. In Porter v. United States, 7 A.3d 1021 (D.C.2010), Eugene Porter contended that his due process rights under Brady were violated when the government failed to turn over information about an informant that, in Mr. Porter's view, would have shown that police lacked probable cause to arrest and search him and that his motion to suppress evidence should have been granted. Id. at 1023. This court, never questioning that Brady applied in such circumstances, held that the information at issue “was not material to the defense” given that the informant did not testify and that the police were not aware of the information when they decided to arrest and search Mr. Porter.3 Id. at 1026.

The only courts we know to have squarely addressed the issue on the merits have held that the failure to disclose information material to a ruling on a Fourth Amendment suppression motion can constitute a Brady violation.4 In Smith v. Black, 904 F.2d 950, 965–66 (5th Cir.1990), vacated on other grounds, 503 U.S. 930, 112 S.Ct. 1463, 117 L.Ed.2d 609 (1992), the government failed to disclose evidence that would have bolstered the impeachment of a detective who testified at a suppression hearing involving the warrantless seizure of evidence from the defendant's car and home. The Fifth Circuit concluded that “objections may be made under Brady to the state's failure to disclose material evidence prior to a suppression hearing,” id. at 965, and that “the appropriate assessment for Brady purposes” was whether the nondisclosure “affected the outcome of the suppression hearing,” id. at 956–66. In United States v. Gamez–Orduno, 235 F.3d 453 (9th Cir.2000), the government failed to timely disclose a codefendant's statement that contradicted the government's assertion that the defendants lacked standing to challenge on Fourth Amendment grounds the Border Patrol's warrantless search of the trailer where the defendants resided. The Ninth Circuit concluded that “[t]he suppression of material evidence helpful to the accused, whether at trial or on a motion to suppress, violates due process if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. at 461.5 In addition, at least one court has held that Brady applies to suppression hearings alleging Miranda violations. See Nuckols v. Gibson, 233 F.3d 1261, 1266–67 (10th Cir.2000) (finding a Brady violation where “the prosecution withheld evidence that would have allowed defense counsel the means to test [the police officer's] credibility” where the admissibility of Mr. Nuckols's confession “hinged upon proof” that he initiated the interview).6

We agree that the suppression of material information can violate due process under Brady if it affects the success of a defendant's pretrial suppression motion. We have described as “eminently sensible” a broad formulation of the government's Brady obligation that would reach the kind of evidence “that would suggest to any prosecutor that the defense would want to know about it,” Miller v. United States, 14 A.3d at 1110 (quoting Leka v. Portuondo, 257 F.3d 89, 99 (2d Cir.2001)); see also Mackabee, 29 A.3d at 962 (D.C.2011), and a rule prohibiting the government from suppressing favorable information material to a Fourth Amendment suppression hearing would impose little if any additional burden on prosecutors and police beyond the obligations that court rules and professional standards already impose. See, e.g., USAM § 9–5.001.C.2 (requiring disclosure of information that “might have a significant bearing on the admissibility of prosecution evidence”); D. MASS. L.R. 116.1(c)(1)(B) (requiring that the government disclose within 28 days of arraignment a written description of an incriminating warrantless search, including an inventory of items seized); D. MASS. L.R. 116.2(a)(2) (requiring disclosure of information that “tends to ․ cast doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief”).7

Having held that the failure to disclose information material to a pretrial suppression ruling can implicate Brady, we conclude that the withheld information here, which tended to show that the search could not be justified as a routine search of a suspect's wingspan incident to arrest, was favorable for purposes of the Brady doctrine.

B. Whether the Information Was Suppressed

To prove a Brady violation, a defendant must show not only that the information at issue was “favorable” to the accused, but that it was “suppressed.” Evidence is “suppressed” for Brady purposes if the government failed to disclose it “in time to permit [the defense] to contemplate its implications” and to make “new investigative, strategic and tactical decisions,” “not only in the presentation of its case, but also in its trial preparation.” Miller, 14 A.3d at 1111–12. “[W]here disclosure of Brady is concerned, there is no time for strategic delay and ‘as soon as practicable’ should be the approach.” Vaughn v. United States, 93 A.3d 1237, 1257 (D.C.2014) (quoting Miller, 14 A.3d at 1111). See also United States v. Coppa, 267 F.3d 132, 142 (2d Cir.2001) (requiring disclosure “no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made”); Edelen v. United States, 627 A.2d 968, 970 (D.C.1993) (disclosure must be “at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case, even if satisfaction of this criterion requires pre-trial disclosure”) (quotation marks and citation omitted). Here, the government says it did not suppress information about the true basis for the post-arrest search of the DVD stash and backpack because Mr. Biles still had “plenty of time to make effective use of it” during the lengthy continuance from April 11 to May 4.

After a full review of the record, we conclude that the government's untimely midtrial disclosure of a completely new and different basis for the search—that is, the government's disclosure that the DVDs and items in Mr. Biles's backpack were not, in fact, retrieved from the area of Mr. Biles's wingspan, incident to arrest—denied Mr. Biles a fair opportunity to challenge the legality of the search. In the confused aftermath of Officer Davis's unexpected testimony about the informant and the warrantless search, counsel tried to quickly digest the import of the new information, orally moved to “exclude” the evidence, and asked permission to question Officer Davis at length about the informant. The trial court allowed questioning about the informant's prior cases but denied the request to exclude the fruits of the search, and in the process made clear its position that Mr. Biles lacked standing to move to exclude the fruits of the search on any basis because he “has never asserted the DVDs were his,” telling counsel “that sort of closes the door on anything further with respect to the confidential informant.” Thus, even if counsel had possessed the wherewithal in the wake of the belated disclosure to think beyond the informant-related issues and to appreciate the full legal significance of the warrantless search, she had no reason to further move to suppress the fruits of the search on any basis after the trial court's standing ruling. Counsel “cannot be faulted for believing that, by then, the die had been cast.” Brooks v. United States, 39 A.3d 873, 882 (D.C.2012). See also Wilkins v. United States, 582 A.2d 939, 942 n. 7 (D.C.1990) (noting that “defense counsel did not need to object again to preserve his claim of error on appeal” once the court “implicitly overruled [an] objection”); United States v. Freeman, 357 F.2d 606, 613 (2d Cir.1966) (concluding that a colloquy with counsel “sufficiently enlightened the court as to the point being raised,” and that any further showing would have been “an exercise of futility”).

Given the strength of Mr. Biles's would-be claim that the warrantless search did not fit within any recognized exception to the warrant requirement, and the fact that Officer Davis's unexpected disclosures ran directly counter to the version of the facts presented by the government in documents previously given to counsel,8 it is hard to read counsel's failure to further pursue the suppression issue as logically attributable to anything but the trial court's dismissive ruling and the “hasty and disorderly conditions under which the defense was forced to conduct its essential business.” Miller, 14 A.3d at 1113 (quoting Leka, 257 F.3d at 101).9 As for the government's suggestion that Mr. Biles should have sought reconsideration of the court's standing ruling, we have rejected the notion that when forced to respond to belatedly disclosed material, counsel must “evaluate immediately all potential ramifications of the evidence ‘or else waive the right to complain later.’ “ Miller, 14 A.3d at 1114 (quoting James, 580 A.2d at 643). While an “ideally vigilant” lawyer may have quickly produced authority to persuade the trial court that Mr. Biles did have standing to challenge the search, Mr. Biles was not required to seek reconsideration of the trial court's decision. See James, 580 A.2d at 644 (“[A]ppellant's failure to move for a mistrial or to ask the court to revisit its spontaneous utterance ruling does not bar his claim here.”); S.E.C. v. Mayhew, 121 F.3d 44, 53–54 (2d Cir.1997) ( “Generally, a party disadvantaged by a district court's ruling is not required to move for reconsideration in the district court as a precondition to an appeal from the ruling.”).

In sum, the government's belated midtrial disclosure of the true basis for the search, coupled with the trial court's standing ruling, closed the door on any future Fourth Amendment suppression motion. It thus foreclosed any meaningful opportunity on Mr. Biles's part “to use the information with some degree of forethought,” Miller, 14 A.3d at 1112, and to frame and litigate what should have been a successful motion.10

C. Whether the Information Was Material

Mr. Biles argues that information about the warrantless search of his belongings was material for Brady purposes because had he known about it, he could have filed a timely suppression motion that would have been granted, thus depriving the government of the most important evidence in its case—the DVDs and the identification cards linking Mr. Biles to the DVDs. He argues that because this scenario would have resulted in an acquittal or dismissal, he has demonstrated a reasonable probability—in fact, much more than a reasonable probability—that “had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. Based on our review of the record and the relevant case law, we agree.

“ ‘[S]earches 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.’ “ Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). In defending the legality of the warrantless search in this case, the government does not rely on the trial court's “standing” ruling—which it appears to agree was erroneous11 —or the search-incident-to-arrest warrant exception, which it agrees does not apply.12 Rather, the government relies solely on an abandonment argument. In its view, “Officer Davis did not invade any reasonable expectation of privacy on appellant's part when she first moved the backpack to see the DVDs, and then looked inside that backpack” because Mr. Biles “abandoned the DVD stash and his backpack by leaving them in a public area” and by telling Officer Davis that he “was not selling DVDs.” Because he had no reasonable expectation of privacy, the government argues, there was no “search” implicating the Fourth Amendment, the discovered items would not have been suppressed, and there was no reasonable probability of a different outcome.

We do not agree that Mr. Biles's statement to Officer Davis that he “was not selling DVDs” indicates that Mr. Biles relinquished an expectation of privacy in the contents of the backpack—which Mr. Biles never mentioned in the statement—or in the box of DVDs beneath the backpack. At the time of the statement, the police had not seen or been alerted to the existence or location of the backpack or box of DVDs, which were sitting eight to ten feet away. The trial court's findings also indicate that the items were not discarded or exposed to public view. In explaining its judgment that Mr. Biles was guilty of attempted deceptive labeling, the trial court found that the backpack was “covering up the top of the DVDs, protecting it from sight” and that by keeping “his knapsack on top of” the DVDs, Mr. Biles “in essence, was claiming dominion and control and keeping it in place and securing it for himself and covering it so others wouldn't see what was under there.” He knew they were “safe and in [his] line of sight so [they could not] be taken by anybody else.”

Thus, while the events took place in a “public” market, Mr. Biles's expectation, manifest in his actions and in no way contradicted by his response to police inquiries, was that the items would remain private. See Katz, 389 U.S. at 351 (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”) (citations omitted); id. at 352 (noting that the appellant acted to exclude the “uninvited ear” by shutting the phone booth door); Brown v. United States, 627 A.2d 499, 503–04 (D.C.1993) (considering whether appellant “took reasonable precautions to maintain privacy” and concluding that by leaving the door open, he had not). This case thus differs from cases in which a movant seeks to discard an item or places it in public view. See, e.g., Allison v. United States, 623 A.2d 590, 591 (D.C.1993) (concluding that the appellant abandoned his gun by discarding it while fleeing a police officer). Other than Mr. Biles's statement and the items' location, the government suggests no basis—and we see none—for finding that he relinquished his expectation of privacy. This expectation, moreover, was not defeated merely because Mr. Biles stood in a public market; rather, it remained “one that society is prepared to recognize as ‘reasonable,’ “ Katz, 389 U.S. at 361 (Harlan, J., concurring), particularly where Mr. Biles kept his belongings protected from view and “in [his] line of sight.”

Because Mr. Biles had a reasonable expectation of privacy in his belongings and because the warrantless search of those items did not fall within an exception to the Fourth Amendment's warrant requirement, the DVDs hidden under his backpack and the identification cards recovered from the backpack should have been suppressed. See United States v. Chadwick, 433 U.S. 1, 15, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (prohibiting “warrantless searches of luggage or other property seized at the time of an arrest” unless conducted incident to arrest or in exigent circumstances). Without the DVDs, the government could not prove that the DVDs were counterfeit, and without the identification cards, the government would have had trouble linking Mr. Biles to the DVD stash. We accordingly find a reasonable probability that the government's failure to timely disclose the information affected the outcome of the trial by preventing Mr. Biles from litigating a winning motion to suppress the government's most damning evidence against him. The government's suppression of this information therefore “undermines confidence in the outcome of the trial,” and requires reversal of Mr. Biles's first conviction. Kyles, 514 U.S. at 434.

D. Effect on the Second Trial

We reverse Mr. Biles's second conviction for attempted deceptive labeling because the government in the second trial heavily relied on the same evidence illegally obtained in the earlier January 8 incident, and there is “a reasonable probability that, had the evidence been disclosed to the defense” in the first trial, as we have concluded that it should have been, the result of the second trial “would have been different.” Bagley, 473 U.S. at 682.13

On February 4, 2011, the same Officer Davis arrested Mr. Biles for peddling counterfeit DVDs at the Florida Avenue flea market, again on an informant's tip. At trial on April 18, 2011, Officer Davis testified that Mr. Biles did not possess DVDs on his person and that she did not see Mr. Biles sell DVDs. But she did see a backpack about eight feet away that was “distinct” to her because she “recognized it” from her previous arrest.14 She “went over and recovered the property and then [she] brought that property back to show him what [she] had recovered.” She then searched the backpack, which contained “nothing that had Mr. Biles'[s] name on it.” She nonetheless recognized it as Mr. Biles's because she had searched it on January 8, when his “personal property was inside the book bag with his name on it.” The backpack had been leaning against a stack of crates, and atop the crates, Officer Davis found a shoe box containing 52 DVDs.15 In closing argument, the government emphasized that “the one fact in this case that links and ties the defendant to these DVDs” is that Officer Davis “saw the defendant's own bag, the bag she knew was his, next to the crate where the DVDs were located,” and “[t]he fact that his bag is there is the one thing that harms their case, and they can't get past it.” Judge Alprin found Mr. Biles guilty based in part on “pretty strong evidence in the case that this was Mr. Biles['s] backpack” and that “the DVDs in controversy” were sitting near the bag. Defense counsel asked the trial court to reconsider and “appreciate that the prior arrest may have influenced your decision,” to which the court replied: “The arrest didn't. The circumstances of it did, though.”

The government argues that Mr. Biles's Brady claim with respect to this second trial fails “for the same reasons” as the first, but we have already rejected those reasons. Nor do we agree that Mr. Biles “had enough time to make sufficient use of the material” in the second trial, where the court in the first trial foreclosed that opportunity by ruling that Mr. Biles lacked standing to challenge the search.16 Officer Davis's testimony that on January 8, Mr. Biles's “personal property was inside the book bag with his name on it” became the predominant evidence of guilt at this trial. Nothing else so definitively linked Mr. Biles to the shoebox of DVDs, as the police did not see Mr. Biles selling DVDs and did not find DVDs in his physical possession when searching him incident to arrest. Absent this testimony, derived from the illegal search on January 8, we do not have confidence in the outcome of the trial.

III. Conclusion

Until the arresting officer took the witness stand at trial, the defense did not know that the government had conducted a warrantless search of Mr. Biles's belongings that could not be justified under any exception to the warrant requirement. The officer's disclosure of the true basis for the search—an informant's tip, rather than a search incident to arrest—was favorable to a winning Fourth Amendment motion that would have excluded key evidence of guilt in both trials. Yet in the chaotic aftermath of the midtrial disclosure, and following the trial court's ruling that Mr. Biles lacked standing to further argue for exclusion of the items, Mr. Biles could not make effective use of the disclosed information. As there is “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different,”17 Bagley, 473 U.S. at 682, we reverse the judgments of conviction and remand Mr. Biles's cases for further proceedings consistent with this opinion.18

So ordered.

Had appellant brought this appeal on Fourth Amendment grounds, we almost certainly would have reversed his convictions on that basis, for reasons apparent from Judge Beckwith's opinion and footnote 1 of Judge Thompson's opinion concurring in the judgment. But appellant has not sought reversal on that ground, and accordingly the government discusses the legality of the search and seizure only as part of its Brady materiality analysis. Judge Thompson suggests that our unwillingness to stray from the framework presented by the parties leads us unnecessarily to decide a novel issue of Brady's applicability (vel non ) to Fourth Amendment suppression hearings. But the government, for its part, barely alludes to that issue as a basis for us to find no “plain error” in the trial court's resolution of an (in its view) unpreserved Brady claim. And even then, the government does not suggest the refined distinction Judge Thompson makes between “impeaching” Brady evidence, applicable to suppression hearings, and “exculpatory” Brady evidence, inapplicable to them in her view unless negating guilt on the general issue, even if favorable to a winning suppression motion.

I join Judge Beckwith's opinion because it seems to me consistent with the understanding of our cases. Judge Thompson's position, or a variant of it, is one I can imagine the government advancing in a future case, but not before a good deal of reflection. Should Brady have no bearing, for example, on a prosecutor's purposeful, deliberate concealment of evidence—whether “exculpatory” or not—that he knows would require Fourth Amendment suppression if revealed? Or might the government, borrowing from exclusionary rule analysis, limit itself to arguing that a Brady reversal perhaps years after trial for a prosecutor's inadvertent, unintentional nondisclosure of evidence favorable to a defense suppression motion—but not otherwise “exculpatory”—exacts too great a cost to a conviction returned on probative and reliable evidence of guilt. Cf. Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Judge Thompson's analysis provocatively raises questions of this sort, but this case is not the place to consider them.

I agree with my colleagues that appellant is entitled to a reversal of his convictions. That is because the principal evidence on which his convictions were based was the fruit of a warrantless search, as to which the trial court should not have foreclosed what would have been a meritorious Fourth–Amendment suppression motion.1 Alternatively, I think appellant has grounds for a likely-meritorious motion for a new trial based on ineffective assistance by his trial counsel.2 However, I cannot join the majority opinion because it bases the reversal of appellant's convictions on a conclusion that the delayed disclosure about the “true basis” for the search of the backpack and box of DVDs constituted a Brady violation. That is a conclusion with which I cannot agree; I believe it expands the reach of Brady in a way that is not justified [and in a way whose ramifications we perhaps cannot foresee].

It is well-settled that for there to be “a true Brady violation[,]” “[t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (italics added). My reason for not joining the majority opinion is that the information at issue here—that a confidential informant let Officer Davis know that the DVDs stored near door # 2 were appellant's stash—was inculpatory, not exculpatory, and was not impeaching of any witness. As to the latter point, I note that appellant has not claimed that the information Officer Davis provided at trial about what led her to search the box and backpack impeached the statements she made in her Gerstein affidavit. In the Gerstein, Officer Davis stated in pertinent part:

Mr. Biles movies where [sic] stored in a box adjacent to door # 2 on a crate. Mr. Biles was in possession of 156 DVD's [sic] some of which are [sic] still being shown in theaters․ Seized from Mr. Biles right front pants pocket was $135.30 in U.S. currency.

The Gerstein did not falsely state that DVDs were found on appellant's person or within his reach, and appellant has not claimed that the affidavit falsely implied that either was the case.3 I agree that if the affidavit had done so, the government's failure to timely correct such a false statement and disclose the true basis for the search would have violated the government's obligations under Brady.4 See United States v. Bagley, 473 U.S. 667, 679 n. 8, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (“[T]he Brady rule has its roots in a series of cases dealing with convictions based on the prosecution's knowing use of perjured testimony.”).5 But, again, appellant has not made that claim, and that is not the basis for the majority opinion's finding of a Brady violation.

Because the information about the “true basis” for the search of the backpack and box of DVDs was neither exculpatory nor impeaching, it was not covered by Brady.6 The majority opinion avoids this conclusion by emphasizing the language, used in Brady and its progeny, that it is the “suppression by the prosecution of evidence favorable to an accused ” that violates due process, Brady, 373 U.S. at 87–88 (italics added), and by arguing that it is “favorable to the accused” to know of information that would support a motion to suppress evidence on Fourth Amendment grounds. However, the “favorable to the accused” evidence the Supreme Court had in mind was evidence “which, if made available, would tend to exculpate [the defendant] or reduce the penalty․” Id.; see also Bagley, 473 U.S. at 676–77 (rejecting any distinction between impeachment evidence and exculpatory evidence, because the reliability of a given witness may be determinative of guilt or innocence); United States v. Agurs, 427 U.S. 97, 112 n. 20, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (“It has been argued that the [Brady materiality] standard should focus on the impact of the undisclosed evidence on the defendant's ability to prepare for trial, rather than the materiality of the evidence to the issue of guilt or innocence․ Such a standard would be unacceptable ․ [because it] would necessarily encompass incriminating evidence as well as exculpatory evidence, since knowledge of the prosecutor's entire case would always be useful in planning the defense.”).7

The majority opinion also relies on this court's statement that an “eminently sensible” formulation of the government's Brady obligation is that it reaches any evidence “that the defense would want to know about․” Miller v. United States, 14 A.3d at 1110 (quoting Leka v. Portuondo, 257 F.3d 89, 99 (2d Cir.2001)); see also Mackabee v. United States, 29 A.3d 952, 962 (D.C.2011). However, as used in all those cases, that formulation was meant to guide the government with respect to whether the disclosure obligation applies to evidence that is only arguably exculpatory. See Miller, 14 A.3d at 1110 (delayed disclosure of “testimony, given shortly after the crime was committed, to the effect that the gunman used his left hand to shoot the victim (in a case in which the defendant is right-handed)․”); Leka, 257 F.3d at 98 (delayed disclosure of the “true nature” of the testimony of an additional eyewitness to the murder, whose testimony cast doubt on the trial testimony presented by other eyewitnesses); Mackabee, 29 A.3d at 962 (failure to disclose fact that an eyewitness “pointed to two other individuals in the photographs, saying that the shooter ‘sort of looks like one of these guys,’ while not pointing to appellant.”). None of the cases suggests that information or evidence is covered by Brady if it is neither exculpatory or impeaching but simply is information or evidence that the defense would like to know for some strategic advantage.8

According to the majority opinion, this court has “repeatedly held that information tending to show the inadmissibility of government evidence is ‘favorable’ evidence that must be disclosed under Brady.” That characterization is at best misleading. The point to be noticed is that the cases that the majority opinion cites in support of that proposition all involved the untimely disclosure of evidence that was potentially impeaching of a government witness. In Gaither v. United States, 759 A.2d 655 (D.C.2000), amended by 816 A.2d 791 (D.C.2003), we remanded for the trial court to consider the appellant's claim that “the government withheld evidence that materially impeached Fennel, the government's principal witness.” Id. at 662. In Smith v. United States, 666 A.2d 1216 (D.C.1995), the Brady claim was based on the “revelation [for the first time] at trial, that the complainant/declarant purposefully misrepresented during [a 911] call that the robber had a gun in his face․” Id. at 1224. We held that this was Brady material, explaining that “[p]rior inconsistent statements of a key government witness may be sufficiently material to guilt as to constitute Brady material.” Id. at 1224–25. In James v. United States, 580 A.2d 636 (D.C.1990), the witness's statement to police that was disclosed only on the fifth day of trial was one that, in addition to bearing on whether another statement by the witness was an excited utterance, “was used by appellant's counsel during cross-examination ․ and in closing argument in an attempt to impeach the credibility and the motives of” two government witnesses. Id. at 641. And in Porter v. United States, 7 A .3d 1021 (D.C.2010), where the claim was that the government violated Brady by failing to turn over information about facts bearing on the potential bias of a confidential informant (information that the defense argued could have shown that the police lacked probable cause to arrest and search the defendant), we noted first that “Brady material can include both exculpatory and impeachment evidence” but stated repeatedly that the information “could not have been used to impeach the informant because he did not testify[,]” and then merely made the “[f]urther” observation that the information could not have been used to call into question the existence of probable cause because the information did not exist at the time the officers made their decision to arrest and search the defendant. Id. at 1025–26. In each of these cases, the fact that the withheld information had a bearing on the admissibility of certain evidence, or that it bore on whether police had probable cause, may have been relevant to whether the withheld information was material, but none of the cases suggests that information that is neither exculpatory nor impeaching is covered by Brady.9

I recognize that the government did little to develop the argument that the information at issue here was “not plainly exculpatory or impeaching”; indeed, the government made that assertion only in a heading in its brief. However, as I have previously expressed, my understanding of our responsibility as an appellate court is that we are to decide cases in accordance with law, a responsibility that is “not to be diluted by counsel's oversights” and that on occasion obligates us to “raise sua sponte an argument on appeal that the government has failed to raise.” Tuckson v. United States, 77 A.3d 357, 375–77 (D.C.2013) (Thompson, J., dissenting) (internal quotation marks and alterations omitted).

My colleagues in the majority observe that a rule prohibiting the government from suppressing information of the type involved here “would impose little if any additional burden on prosecutors and police beyond the obligations that [some court's] rules and professional standards already impose.” They cite the section of the United States Attorneys' Manual that requires disclosure of information that “might have a significant bearing on the admissibility of prosecution evidence,” USAM § 9–5.001.C.2,10 and local rules 116.1(c)(1)(B) and 116.2(a)(2) of the United States District Court for the District of Massachusetts (requiring, respectively, that the government provide a written description of an incriminating warrantless search and disclose information that “tends to ․ cast doubt on the admissibility of evidence that the government anticipates using in its case-in-chief․”).11 See L.R. 116.1(c)(1)(B); L.R. 116.2(a)(2). I have no quarrel with these rules as a matter of policy, but I note that they have been the subject of much debate and discussion (focused on whether the Federal Rules of Criminal Procedure should be amended to incorporate the broad discovery obligations they describe).12 I am not persuaded that we should take sides in this debate about the appropriate scope of discovery through a novel extension of our Brady jurisprudence (i.e., by declaring that, as a matter of constitutional due process, the prosecution is obligated to ferret out and disclose any information that could support a Fourth Amendment suppression motion).13 We should particularly avoid that course in this case, where it is far from clear that trial counsel raised a Brady claim,14 where the record suggests no reason why counsel could not have ascertained the pertinent information (that the DVDs were not on appellant's person or within his reach) through some very basic questioning of her client, and where we have an alternative basis for affording appellant relief.

BECKWITH, Associate Judge:

Concurring opinion by Senior Judge FARRELL at page 30. Opinion concurring in the judgment by Associate Judge THOMPSON at page 31.

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