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June 22, 1990


Appeal from the Superior Court of the District of Columbia; Hon. Steffen W. Graae, Trial Judge

Belson, Steadman, and Schwelb, Associate Judges.

The opinion of the court was delivered by: Schwelb

Simpson was convicted by a jury of unlawful possession of cocaine with intent to distribute it, in violation of D.C. Cede § 33-541 (a) (1) (1988). He contends for the first time on appeal that the drugs in question were seized in violation of the Fourth Amendment and should have been suppressed. We find no error.


The facts can be briefly summarized. Officers of the Metropolitan Police Department on "truant patrol" were pursuing a suspected truant who had eluded them. During the chase, they observed Simpson, who was then eighteen years of age, and a companion, a fifteen-year-old juvenile, entering a red Hyundai automobile. Suspecting that the youths might be truants, the officers pulled up close to the Hyundai, so that the driver's door of that vehicle was blocked. They directed each of the youths to get out of the car. One of the officers told Simpson to hand him his registration and operator's license, and Simpson did so. The license revealed that Simpson wad too old to be a truant. Simpson then walked away with his documents still in the possession of the police.

According to one of the officers, Simpson then removed a brown paper bag from his waistband and dropped it into the engine compartment of an abandoned station wagon which was located nearby. The officer recovered the bag and found that it contained sixteen plastic bags filled with crack cocaine. Simpson's arrest and conviction followed.

Simpson contends on appeal that the police lack statutory or other authority to detain truants. *fn1 He argues that in this case the officers lacked articulable suspicion that he had engaged in any unlawful conduct, and that his detention was therefore unlawful. According to Simpson, the improper detention precipitated his alleged discarding of the drugs and rendered their seizure unlawful as the fruit of the poisonous tree.


No motion to suppress tangible evidence was filed in the trial court. District of Columbia Code § 23-104 (a) (2) (1989) provides that "a motion to suppress evidence shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds of the motion." See also Giles v. District of Columbia, 548 A.2d 48, 51 (D.C. 1988); Super. Ct. Crim. R. 12 (b) (3). Simpson does not claim, nor can he, that either of these exceptions is applicable to the present case. Accordingly, we conclude that he has waived the issue on appeal. Streater v. United States, 478 A.2d 1055, 1058 (D.C. 1984).


Simpson next contends that his trial attorney's failure to file a motion to suppress the cocaine constituted ineffective assistance of counsel. He has not, however, filed a collateral attack on the judgment pursuant to D.C. Code § 23-110 (1989). See Shepard v. United States, 533 A.2d 1278 (D.C. 1987). Instead, he asks this court to rule on direct appeal that the trial record demonstrates beyond doubt that the seizure was unlawful. For that reason, says Simpson, no further factual record is required. Conceding, as he must, that the government, not having been confronted with a motion to suppress tangible evidence, has never had an occasion to adduce the testimony of the officers or to introduce Other evidence on matters relevant to the validity of the seizure, Simpson argues that he is nevertheless entitled to prevail because the trial record fully discloses the reasons for the stop and establishes their insufficiency as a matter of law.

We cannot agree. To prevail upon a showing of ineffective assistance of counsel, Simpson must demonstrate both that his trial attorney's performance fell below an objective standard of reasonableness and that there is a reasonable probability that the error affected the outcome of the trial to his prejudice. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Even if we were to assume, for the sake of argument only, that Simpson has established that trial counsel's performance was inadequate, *fn2 we are in no position to determine that the motion to suppress would probably have been granted if his attorney had filed one, for we simply do not know what facts the government might have adduced in opposition to it.

At Simpson's trial, the government's sole obligation was to prove his possession of the drugs and his intent to distribute them. Evidence with respect to events leading up to Simpson's arrest was relevant only to put the case in its proper setting. See Toliver v. United States, 468 A.2d 958, 961 (D.C. 1983). The prosecutor had no occasion to, and did not, direct his attention to issues which would have been relevant to a motion to suppress tangible evidence. In the present case, a competent prosecutor faced with such a motion would surely have explored such questions, among others, as whether Simpson had "standing" to move to suppress the contraband; *fn3 whether officers believed Simpson to be a truant, and why; and whether the detention was at an end after his operator's license had revealed that he was not of truancy age, so that he was then free to leave. Common sense surely compels the Conclusion that if these and other Fourth Amendment-related issues had been presented, the evidence adduced by the prosecution would have been different from that on which it relied to prove Simpson's possession of the drugs with intent to distribute them. Inevitably, the government's attention while opposing a suppression motion would have focused on matters which were of no consequence at proceedings relating solely to Simpson's guilt or innocence.

The government claims that the facts revealed at trial, without more, require us to sustain the seizure. Simpson responds that the identical facts compel suppression. We need not and do not decide whether suppression is warranted or unwarranted on the present constricted record. "This court is in the best position to assess a claim of ineffective assistance of counsel where a separate motion has been filed and an appropriate record has been made." Mack v. United States, 570 A.2d 777, 785 (D.C. 1990). The government has the right to contribute to the creation of such a record, and a defendant may not unilaterally decide that the issue shall be determined solely on the basis of the trial record, eschew the filing of a ยง 23-110 motion, and thus foreclose the prosecution's opportunity to adduce evidence relevant to ineffective assistance ...

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