LAMONT A. BILES, APPELLANT,
UNITED STATES, APPELLEE
Argued October 4, 2012.
Appeals from the Superior Court of the District of Columbia. (CMD-557-11 & CMD-2107-11). (Hon. Brook Hedge, Trial Judge), (Hon. Geoffrey M. Alprin, Trial 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.
Before THOMPSON and BECKWITH, Associate Judges, and FARRELL, Senior Judge. OPINION by Associate Judge BECKWITH. Concurring opinion by Senior Judge FARRELL at page 30. Opinion concurring in the judgment by Associate Judge THOMPSON at page 31.
Beckwith, Associate Judge :
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.
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. 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.
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 ...