Appeal from the Superior Court of the District of Columbia (FEL7540--03) (Hon. Maurice A. Ross, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Argued March 24, 2011; Reargued November 9, 2011
Before THOMPSON and OBERLY, Associate Judges,and NEWMAN, Senior Judge.*fn1
Opinion for the court by Associate Judge THOMPSON.
Dissenting opinion by Senior Judge NEWMAN at p. 25.
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 2003. The jury acquitted appellant of the October robbery count, but found him guilty on all charges related to the December incident.
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,*fn1 an officer escorted Hunt back inside the house while the officers awaited a WALES (i.e., Washington Area Law Enforcement System database) check on Hunt.*fn2 Also according to the written report, during that time, Officers Frost and Jackson told Officer Tighe 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." Tighe then went back into the house, this time accompanied by Walker (an entry that the parties and the trial court referred to as the "second entry"). Asked at trial whether he was "given permission to enter the premises at that point," Officer Tighe responded, "Well, there was an officer still there." Inside the house, Walker proceeded to identify various items of property that had been taken from his person or his car. According to Officer Tighe's report, after Walker left the house and after Hunt was arrested, a crime scene search technician took photographs of the scene. Officer Tighe also took some Polaroid photos of the scene and the property and seized the property that Walker had identified. The officers did not see a shotgun, but police returned the next day with a warrant and recovered a sawed-off shotgun from the attic of the house.
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.*fn3
In December 2007, appellant filed his D.C. Code § 23-110
motion. He argued that his trial counsel was ineffective in that he
failed to file a motion to suppress the evidence seized during the
second entry into the home (i.e., all of the physical evidence except
the bracelet and the
shotgun). At a hearing on December 3, 2008, the trial court assumed
that the motion to suppress would have been granted if filed, but told
the parties that in its view the remaining evidence against appellant
was "overwhelming" and reasoned that appellant therefore was not
prejudiced by his counsel's omission and was not entitled to relief
(but afforded the parties time to file supplemental memoranda).
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"; and "most importantly[,] the shotgun." This appeal followed.
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 (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 (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. 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. 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; 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 (1990) (internal quotation marks omitted)).
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 notseen. Clark,593 A.2d 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.*fn4 We held that the "seizure" of "items which [were] in plain view during an emergency" was "permissible," id. at 197, reasoning that to hold that even though Officer Cole had the right to seize the items, "his colleague acted unlawfully in doing so would improvidently exalt form over substance." Id. at 198 (concluding that "where, as in the present case, the responding officers remained on the premises for a reasonable time and were still there when the crime scene search officer seized the items in plain view, the legality of the seizure cannot reasonably be questioned").*fn5 We were troubled by the admission of the slug, which the initial officer had not seen, but we determined that its admission was harmless. Id. at 198 n.25.
The government argues that the facts of this case are analogous to those of Clark: The police legally entered the residence and saw inculpatory items in plain view, and (according to Officer Tighe's trial testimony) one of the officers was still in the residence when another officer (Tighe) entered the residence and seized those items. But, on the present record, we are unable to discern how far the analogy extends.
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 itemsdescribed 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.*fn6
In addition, while Officer Tighe testified at trial that "there was an officer still there" when he re-entered the home, the court (not having conducted an evidentiary hearing on appellant's post-trial § 23-110 motion) made no finding on the issue. The point is relevant because our case law has required that the emergency-response officer remain present to justify warrantless entry by evidence-collection officers. See Settles, 615 A.2d at 1112 (observing that "[t]he Clark court distinguished Douglas-Bey on the grounds that in Douglas-Bey the officers who seized the evidence had made a new entry onto premises after the officer who made the initial emergency entry had departed . . . ."); Douglas-Bey,490 A.2d at 1140 (observing that the officer who made the initial entry "could have stayed on the scene for the short period it took the others to arrive, thus not triggering the warrant clause of the Fourth Amendment." (Nebeker, J., concurring)).*fn7
Even if we could take as fact Officer Tighe's testimony about an officer's being "still there" at the time of the second entry, Officer Tighe's written report suggests another divergence from Clark: it indicates that, before the second entry occurred, each of the officers at least briefly exited the house in connection with the show-up identifications.*fn8 Conceivably, the re-entry into the house by the officer who allowed Hunt to return to shelter on that December early morning, but accompanied him back inside, was "no more than an actual continuation of the first entry,"*fn9 justified as necessary to continue ensuring against Hunt's possibly "jumping out with" the shotgun that Walker had described or to preserve the crime scene. But the limited record does not permit us to judge whether, objectively, that officer had a legitimate basis for his continued (or resumed) presence in the house. Cf. La Fournier v. State, 280 N.W.2d 746, 750 (Wis. 1979) ("Whether a subsequent entry is detached from an initial exigency and warrantless entry or is a continuation of the lawful initial entry can be determined only in light of the facts and circumstances of each case.").*fn10
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 had identified his property "in plain view" in the house. As we have frequently observed, a prosecutor's emphasis on certain evidence is "at least a highly relevant measure" of the prejudicial impact of that evidence. Ellis v. United States, 941 A.2d 1042, 1050 (D.C. 2008) (quoting Andrews v. United States, 922 A.2d 449, 461 (D.C. 2007)).
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.*fn11 Jurors could reasonably have doubted that the bracelet appellant was wearing during the show-up identification, which Officer Tighe testified had no identifying marks on it, was Walker's. Or, as appellant argues, jurors could reasonably have suspected that Walker had bartered the generic bracelet as part of a prostitution arrangement. Explaining away the extensive cigar materials and the tissue box with Walker's first name on it doubtless would have been far more difficult.
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.*fn12
To summarize the foregoing, given the record before us, we cannot affirm the trial court's blanket denial of appellant's § 23-110 motion.*fn13 Anticipating this result, we asked the parties to submit supplemental briefs addressing whether we should remand this matter for further development of the factual record. In its response, the government noted that because "the trial court indicated that it was essentially going to assume the success of any suppression motion . . . , appellant never had a true opportunity to meet his burden and develop the facts which might have demonstrated inapplicability of the plain-view doctrine." The government asserted that because of this "special circumstance," "this [c]court's pragmatic jurisprudential remand standard counsels in favor of providing appellant a second opportunity for such an evidentiary hearing." Thus, although the government did not initially suggest remand as a possible resolution, it now urges us to remand if we are unable simply to affirm the trial court's ruling.
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).*fn14 Appellant contends that a remand inappropriately would give the government a "second bite at the apple." Finally, appellant argues that under Giordenello v. United States, 357 U.S. 480 (1958), the "exceptional course" of a remand would be inappropriate since there are no "special circumstances" to justify it.*fn15 Id. at 488. In particular, appellant cites the Supreme Court's statement in that case that it would not be "sound judicial administration to send the case back to the [trial court]" where "[t]he facts on which the Government now relies . . . were fully known to it at the time of trial, and there are no special circumstances suggesting such an exceptional course."
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 based on the papers and our argument here today,"
then "I think we are in a position of probably both of us wanting a, I
guess a hearing on some issue. I don't know whether it has to be on
all the issues that are raised because there's [sic] so many parts of
this fourth amendment analysis." Appellant likewise repeatedly (we
count five or six times) declined the opportunity for a hearing, and
the parties ultimately jointly advised the court that the motion could
be resolved without an evidentiary hearing (appellant apparently
misapprehending the government to be abandoning its position that the
evidence seized during the second entry was admissible).*fn16
The parties did so
after the court had made it all but certain that it would rule that,
because the government's evidence was "overwhelming," appellant could
not show prejudice from his trial counsel's failure to file a motion
to suppress. In that circumstance, the government understandably did
not request an evidentiary hearing. Moreover, as described above, at
the April 15, 2009 hearing, the court told the parties that it would
not hear evidence about the second entry.
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) 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. 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. 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).*fn17
While Supreme Court dictum is "entitled to high respect from an inferior tribunal," United States v. Poindexter, 727 F. Supp. 1501, 1505 (D.D.C. 1989), in this case there is a particular reason to take the dictum in Kimmelman on which appellant relies with a large grain of salt: the difficulty we face in reconciling that dictum with the Supreme Court's recognition earlier in the opinion that "[w]here defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must . . . prove that his Fourth Amendment claim is meritorious. . . ." Id. at 375 (italics added).*fn18
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.*fn19 The government also had good reason for thinking that the burden to request any evidentiary hearing necessary to make that showing lay with appellant.*fn20
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.*fn21 While we will not relieve the government of its concession that Officer Tighe's re-entry "with the victim . . . was not justified by the Fourth Amendment," we see no reason why, without more, that Fourth Amendment violation should require the suppression of the evidence that the officers could have seized during their initial entry (and that Officer Tighe could have seized during a solo re-entry) on the basis of the plain-view doctrine. "[T]he general rule is that only those items which were unconstitutionally seized are to be suppressed; those which were constitutionally seized may stand." Klingenstein v. State, 624 A.2d 532, 536 (Md. 1993). Blanket suppression of seized evidence may be warranted where police have shown "a flagrant disregard" for the limitations of their authorized search, such as by searching "as if no limiting warrant existed, rummaging at will among defendants' offices and files[.]" United States v. Heldt, 668 F.2d 1238, 1259 (D.C. Cir. 1981). Otherwise, "only the improperly-seized evidence will be suppressed; the properly-seized evidence remains admissible." United States v. Srivastava, 540 F.3d 277, 293 (4th Cir. 2008) (citation and internal quotation marks omitted).*fn22 On the present record, we cannot say that complainant Walker's entry with police into the house he had entered with Bruce's consent just an hour or so earlier and the scope of what police allowed him to do within the house (according to Officer Tighe's written report, "look around the house" "to see if he could identify the property as being his") involved such a flagrant disregard for the privacy of the home that it should affect the admissibility of the property that Officer Tighe could have seized. We know of no authority that requires us to hold otherwise, and we also see no reason to "put the police in a worse position than they would have been in if no unlawful conduct had transpired." Nix v. Williams, 467 U.S. 431, 445 (1984). Thus, on the record before us, we cannot say that appellant met his burden of showing that a motion to suppress "would have been successful" as to a significant quantum of evidence merely by "demonstrat[ing] that the items were seized during a warrantless search."
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. 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. 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. 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. 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. 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 now relies to uphold the arrest were fully known to it at the time of trial, and there are no special circumstances suggesting such an exceptional course."
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 (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.*fn23 Analogous to what we instructed in Brooks, we direct that the hearing "shall be limited to the development of sufficient facts to permit rulings as to whether the discovery and taking [of the evidence seized during the second entry] fall within the proper limits of the plain view doctrine." Id. at 1311. This should include development of the facts as to (1) whether another officer was still in the house at the time Officer Tighe re-entered with Walker; (2) if so, what the facts or circumstances were that might (or might not) have justified the officer's resumed presence in the house as a continuation of the first entry; and (3) specifically which items the officers saw and immediately recognized as incriminating during the first entry.*fn24
The trial court "should make determinations as to (1) which [(if any)] items should be considered inadmissible," id., and (2) whether the nature or number of any item or items that were not admissible establishes a reasonable probability that the outcome of appellant's case would have been different if the item(s) had been suppressed. "If the latter question is answered in the [positive], a new trial [on the robbery and PFCV charges] should be ordered." Id.
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.
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:
(1) Assume that we find that the trial court erred in holding on the record before it that the second prong of Strickland v. Washington, 466 U.S. 668 (1984), was not satisfied; and assume further that we decide that the record before us is insufficient to sustain the "second search" under the "plain view" doctrine; should we remand for an evidentiary hearing on the "plain view" issue?
(2) By what jurisprudential standard (legal test versus ad hoc) should we determine whether a remand for an evidentiary hearing is appropriate in cases such as this? See, e.g., 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); D.C. Code § 17-306 (2001).
(3) Should the jurisprudential standard referenced in (2) above be different where the issue is before us on direct appeal as in McFerguson, Barnett, or Brooks, or is before us, as in this case, on appeal, from a ruling on a post-trial motion?
(4) If so, why so? What should be the jurisprudential standard when we are reviewing this type for denial of post-trial relief, as is this case?
The parties submitted briefs addressing each of the questions; I have found these briefs particularly helpful in addressing these questions.
Our remand authority emanates from D.C. Code § 17-306 (2001). As the United States says in its brief, Congress patterned § 17-306 upon 28 U.S.C. § 2106 (2006), and intended § 17- 306 to be virtually identical to § 2106. As we have held, § 17-306 "confers authority on this court in identical terms to section 2106." Foster v. United States, 290 A.2d 176, 178 n.6 (D.C. 1972); accord, Gathy v. United States, 754 A.2d 912, 915 (D.C. 2000).
The Supreme Court construed the provisions of 28 U.S.C. § 2106 in Giordenello v. United States, 357 U.S. 480 (1958). There, it established the jurisprudential standard which guides the exercise of discretion,*fn1 by federal appellate courts, including the Supreme Court, in deciding whether to remand a case for an evidentiary hearing in situations such as those present in this case. That standard is: are there "special circumstances suggesting such an exceptional course." Giordenello, supra, 357 U.S. at 488. In Steagald v. United States, 451 U.S. 204, 208-09 (1981), the Court discusses a situation which meets this jurisprudential standard. See also United States v. Shotwell Mfg. Co., 355 U.S. 233, 236-41 & n.17 (1957) (cited with approval in Giordenello); Whitely v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568-69 (1971).
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, 638 A.2d 107, 114 (Md. 1994); and People v. Shuey, 533 P.2d 211, 219 n.4 (Cal. 1975), abrogated on other grounds in Segura v. United States, 468 U.S. 796, 799 (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 judicial mind has been applied to and passed upon the precise question.") (internal quotation marks omitted). There is no indication that we have ever previously considered the applicability of the federal analogue to our jurisdictional authority under § 17-306. We should explicitly hold here that 28 U.S.C. § 2106 and cases construing it are "persuasive authority" for us in construing § 17-306; plainly put, we should follow Giordenello and its progeny.*fn2
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 (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.*fn3 That concession by the United States that the third entry could not be justified constitutionally on other grounds consistent with the Fourth Amendment was also required, as will be further explicated ...