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            DISTRICT OF COLUMBIA COURT OF APPEALS

                          No. 11-CM-612 & 11-CM-613

                          LAMONT A. BILES, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                        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)
(Argued October 4, 2012                               Decided October 23, 2014)


      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 for the court 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.
                                         2

      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 (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.
                                         3

                                  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
                                          4

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:

      1
         The record does not indicate whether Mr. Biles saw the search. Officer
Davis testified that two police officers on the scene ―walked Mr. Biles over to the
[police] vehicle as [she] simultaneously had gone over to the box.‖ Mr. Biles was
already handcuffed and under arrest when police received the informant‘s call.
                                         5

             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.
                                         6

      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
                                         7

of his belongings—violated his due process rights under Brady v. Maryland, 373

U.S. 83, 87 (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 (1972),

whether the accused requests it or not, Strickler v. Greene, 527 U.S. 263, 280

(1999) (citing United States v. Agurs, 427 U.S. 97, 107 (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 (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 (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
                                          8

―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

(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


      2
         The heading for the government‘s argument on the favorability prong
reads: ―The Material Was Not Plainly Exculpatory or Impeaching.‖
                                         9

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 (1981), even though

neither the attorneys nor the trial judge mentioned Edwards).
                                         10

      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
                                        11

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.



      3
            Many courts have similarly assumed without deciding that such
information can be favorable for Brady purposes. See, e.g., United States v. Veras,
51 F.3d 1365, 1375 (7th Cir. 1995) (finding ―no fault‖ with the district court‘s
conclusion that ―‗[b]ecause the suppressed evidence would not have affected the
outcome of the suppression hearing or the trial, defendant‘s due process rights
were not violated and his motion for a new trial pursuant to Brady and Giglio is
denied‘‖); United States v. Williams, 10 F.3d 1070, 1077 (4th Cir. 1993) (―[W]e
assume arguendo but decline to address definitively on the merits the issue of
whether Brady should call for disclosure of material evidence at pre-trial
suppression hearings‖ because ―[t]he evidence allegedly withheld by the
government regarding conflicting eyewitness reports was not material to the
determination of probable cause‖ to arrest the defendants.); United States v.
Taylor, 471 F. App‘x 499, 520 (6th Cir. 2012) (―Assuming without deciding that
Brady applies to suppression hearings, we nonetheless conclude that the evidence
about Agent Lucas was not material to the suppression-hearing proceedings or to
the trials held in this case.‖); United States v. McCoy, 348 F. App‘x 900, 902 (4th
Cir. 2009) (―Assuming, without deciding‖ that evidence regarding the legality of a
Terry stop was ―was both favorable and withheld under Brady, McCoy failed to
prove that the new evidence was material.‖); United States v. Bullock, 130 F.
App‘x. 706, 723 (6th Cir. 2005) (noting the ―questionable relevance‖ of Brady to
―whether the suppression hearing might have come out the other way,‖ but
concluding that appellant could not show prejudice); United States v. Johnson, No.
96-2008, 1997 WL 381926 (10th Cir. July 7, 1997) (―[A]ssuming that the evidence
identified by Mr. Johnson was in fact withheld by the prosecution and favorable to
Mr. Johnson . . . we hold that the evidence was not material, and that its
nondisclosure by the prosecution does not constitute a Brady violation,‖ where the
                                          12

      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 (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


evidence would have undermined the officer‘s credibility during a pretrial
suppression hearing where the officer and the defendant disputed whether the
defendant had consented to a car search.).
      4
          A split of authority exists on the different but related question whether
Brady applies to information that would impeach police officers‘ affidavits in
support of search warrants. Compare United States v. Barton, 995 F.2d 931, 935
(9th Cir. 1993) (concluding ―that the due process principles announced in Brady
and its progeny must be applied to a suppression hearing involving a challenge to
the truthfulness of allegations in an affidavit for a search warrant‖ where the
concealed information would have impeached the police officer‘s claim that he had
probable cause to search the defendant‘s home), with United States v. Colkley, 899
F.2d 297, 303 (4th Cir. 1990) (declining to extend Brady to the warrant application
process so as to avoid ―perniciously prolix affidavits that would distract police
officers from more important duties and render the magistrate‘s determination of
probable cause unnecessarily burdensome‖). The logistical concerns raised in
Colkley are not present in Mr. Biles‘s case, which involves disclosure of
information relevant to a trial court‘s pretrial suppression ruling, not a magistrate‘s
probable cause determination at the warrant phase.
                                         13

―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



      5
        The courts in Smith and Gamez-Orduno ultimately rejected the Brady
claims in those cases on grounds that the suppressed information was not
―material‖ to the outcome of the hearing. We discuss materiality infra in Part II.C.
      6
         Some courts have simply noted that, for plain error purposes, the
applicability of Brady to Fourth Amendment suppression hearings was not
―obvious.‖ See, e.g., United States v. Nelson, 193 F. App‘x 47, 50 (2d Cir. 2006)
(remanding on other grounds and declining to answer ―[w]hether Brady and its
                                         14

      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



progeny require disclosures in advance of pre-trial hearings‖—―an open question
in this circuit‖); United States v. Stott, 245 F.3d 890, 902 (7th Cir. 2001) (stating
that ―we cannot say that the law is clear on the question of whether Brady should
apply to suppression hearings‖); United States v. Bowie, 198 F.3d 905, 912 (D.C.
Cir. 1999) (stating that ―it is hardly clear that the Brady line of Supreme Court
cases applies to suppression hearings‖). The Bowie court, briefly reflecting on an
argument the appellant ―faintly‖ and ―obliquely‖ made in a heading of his reply
brief, reasoned in dicta that suppression hearings ―do not determine a defendant‘s
guilt or punishment,‖ and thus presumably would be beyond the scope of Brady.
Bowie, 198 F.3d at 912. But the court explicitly made clear that the issue was not
briefed and that it was not purporting to formally consider or decide it. Id. For the
reasons stated in this opinion, we find this dicta unpersuasive.
                                          15

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


       7
         It is worth noting that the Jencks Act, which codified in large part the
Supreme Court‘s decision in Jencks v. United States, 353 U.S. 657 (1957), setting
forth the government‘s obligation to disclose prior statements of its witnesses for
impeachment purposes, applies at suppression hearings. See 18 U.S.C. § 3500 (b)
(2006) (requiring prosecutors to disclose any statement of a witness in the
possession of the United States that relates to the subject testified to by the witness
on direct examination); Fed. R. Crim. Proc. 26.2 (g) (extending this requirement to
suppression hearings); D.C. Super. Ct. R. Crim. Proc. 26.2 (g) (same).
                                         16

―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,
                                          17

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
                                        18

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


      8
         The police report signed by Officer Davis stated: ―Mr. Biles was arrested.
Mr. Biles[‘s] movies [w]ere stored in a box adjacent to door #2 on a crate. Mr.
Biles was in possession of 156 DVD‘s . . . .‖ And as the trial court noted, the
version of events Officer Davis presented at trial was ―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 . . . .‖
      9
          The sheer volume of questions asked by counsel of Officer Davis about
the informant indicates the extent to which counsel was distracted by the
government‘s unexpected midtrial disclosure. Rather than focusing on whether the
warrantless search fit into any recognized exception to the warrant requirement,
counsel spent considerable time asking, for example, whether the informant was
employed by MPD, how Officer Davis knew the informant, what it meant to be the
informant‘s ―handler,‖ how the informant referred to Mr. Biles in the phone call,
whether the informant‘s past tips had been reliable, whether the informant had a
relationship with Mr. Biles, whether Officer Davis knew what the informant did
for a living, whether Officer Davis knew the informant‘s criminal history, whether
the informant had any pending criminal cases, whether Officer Davis and the
                                         19

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

informant had discussed Mr. Biles before the informant called Officer Davis,
whether the informant was under the influence of drugs or alcohol when he or she
made the phone call, how many of the informant‘s eight prior tips were related to
the Florida Avenue flea market, how long the informant had been providing MPD
with tips, whether the prior tips were accurate, whether the informant got paid for
the tip about Mr. Biles, how much the informant ordinarily got paid, whether prior
tips had led to arrests, whether prior tips had led to convictions, and whether the
informant been paid for a tip that led to an arrest in a separate investigation that
Officer Davis had been conducting. Following this lengthy cross-examination,
counsel asked the court to order the government to disclose ―information on the
cases that this individual has worked on before to see if there were convictions‖
and argued that although Officer Davis had testified that the informant had
provided eight tips that led to arrests, ―[t]he fact that they arrested someone based
on a confidential tip doesn‘t prove that tip to have been correct or valid or anything
else.‖
                                         20

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



      10
           At oral argument the question arose, during Mr. Biles‘s counsel‘s
argument, whether the government could have ―suppressed‖ evidence for Brady
purposes if the defendant himself may have known about it. The Supreme Court
has not explicitly addressed and state and federal courts are split on this ―due
diligence‖ question. In the District of Columbia, the federal court of appeals has
held that because the government is responsible for ―any favorable evidence
known to the others acting on the government‘s behalf,‖ it is not the defendant‘s
burden to obtain it. In re Sealed Case, 185 F.3d 887, 896 (D.C. Cir. 1999) (citation
omitted). Here, the government has not suggested that this is a case in which—like
the typical ―due diligence‖ scenario—defense counsel failed to look through a file
or the defendant refused to answer a specific question by counsel or the court about
a favorable witness he knew about. Mr. Biles knew the location of the items, but
there is no indication that he was trained in Fourth Amendment jurisprudence. His
attorney, on the other hand, is trained in the law but had no reason to know the true
basis for the warrantless search. Even if counsel had explicitly asked Mr. Biles
why police arrested him and whether officers saw the items in question, there is
little indication from the Gerstein affidavit or any other evidence in the record that
Mr. Biles or his counsel had reason to understand the precise basis for, or timing
of, his arrest or the search of the items. Moreover, the question whether the ―due
diligence‖ doctrine is consistent with Brady and its progeny is an unresolved and
complicated one. See generally Kate Weisburd, Prosecutors Hide, Defendants
Seek: The Erosion of Brady Through the Defendant Due Diligence Rule, 60
U.C.L.A. L. Rev. 138 (2012). We decline to address the issue in a case where the
                                        21

        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 (2009) (quoting Katz v. United States, 389 U.S.

347, 357 (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



government has not briefed it and where the facts make clear that the doctrine
would not squarely apply.
                                           22

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
      11
           The government agreed at argument that a defendant‘s failure to assert
ownership of property, while potentially relevant to whether he has abandoned the
property and thus retains no reasonable expectation of privacy with respect to it,
does not defeat his ―standing‖ to assert a Fourth Amendment claim. See, e.g.,
Rakas v. Illinois, 439 U.S. 128, 138-39 (1978) (choosing to ―dispens[e] with the
rubric of standing‖ for Fourth Amendment purposes and instead to focus solely on
the question whether the movant‘s personal Fourth Amendment rights were
violated, thus allowing any standing issues to be ―subsumed‖ within ―substantive
Fourth Amendment doctrine‖).
      12
          At oral argument the government disclaimed any reliance on the search-
incident-to-arrest exception. This is consistent with the trial court‘s comment on
April 11 that ―but for that phone call‖ from the informant the police ―wouldn‘t
have gone to the box‖ and the trial court‘s suggestion that the government had
inaccurately implied ―that [the police] just found it incident to the arrest, like it was
right there by him.‖ Indeed, although it is not an issue in this appeal, the record
indicates no legal justification for Mr. Biles‘s warrantless arrest.
                                          23

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
                                         24

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 (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).
                                           25

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

      13
          The government does not appear to dispute that the outcomes of both the
first and second trials would have been different absent the ability to introduce the
items in question.
                                       26

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

      14
          The government offered this testimony to prove Mr. Biles‘s knowledge of
the counterfeit nature of the DVDs—an element of the crime. Defense counsel
objected, arguing that it ―has nothing to do with the knowledge element‖ and that
―[i]f it only goes to knowledge, she only needs to testify to what they were, not
where they were, how she found them or any of the other information.‖ The court
ruled that it would ―permit this testimony to stand for the purpose that [the
government] has suggested.‖
      15
            The government‘s expert later concluded that the DVDs ―were pirated‖
because they lacked the ―true name and address of manufacturer‖ and many ―were
still in the movie theaters at the time of the individual‘s arrest.‖
                                          27

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,


      16
          See supra Part II.B. See also Kritsidimas v. Sheskin, 411 A.2d 370, 373
(D.C. 1980) (stating that suppression motions ―demand detailed judicial
consideration of specific facts‖ and ―often require hearings and findings of fact,‖
which are ―the kinds of judicial exercises the ‗law of the case‘ doctrine is designed
to prevent being repeated‖); Jenkins v. United States, 284 A.2d 460, 463-64 (D.C.
1971) (stating that rulings on pretrial suppression motions constitute the law of the
case).
                                         28

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

      17
          While we have characterized the Fourth Amendment challenge to the
warrantless search as a meritorious claim, our precise holding in that regard—that
under Brady, we find a reasonable probability that the delayed disclosure affected
the outcome in this case—does not strictly preclude further litigation of the
suppression issue on remand.
                                         29

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.




      18
          Given this resolution, we do not reach Mr. Biles‘s other claims of error:
that the midtrial disclosure of ―the distance of the box of DVDs‖ from Mr. Biles
―denied the defense the opportunity to investigate, craft, and present a more
detailed challenge to the government‘s constructive possession case,‖ and that ―the
government did not establish by clear and convincing evidence that the appellant
was actually guilty of deceptive labeling before allowing testimony about his
previous arrest into evidence.‖
                                          30

       FARRELL, Senior Judge, concurring: 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
                                           31

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 (2009). Judge Thompson‘s analysis provocatively

raises questions of this sort, but this case is not the place to consider them.


      THOMPSON, Associate Judge, concurring in the judgment: 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


      1
         The majority opinion discussed this only in the context of explaining why
the information not disclosed prior to trial was material for Brady purposes. But
the majority‘s analysis fully explains why the trial court erred in ruling that
appellant lacked standing to raise a Fourth Amendment claim, thereby effectively
foreclosing a suppression motion. The salient points of that analysis are (1) that by
keeping his backpack on top of the box of DVDs, thereby protecting the DVDs
from sight, and at the same time keeping both items in his ―line of sight so [they
could not] be taken by any[body] else[,]‖ appellant was both exercising dominion
and control over the items and maintaining his expectation of privacy as to each
item and its contents; and (2) that since appellant had a reasonable expectation of
                                         32

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



privacy with respect to the items, the items were not in ―the area ‗within his
immediate control,‘‖ Chimel v. California, 395 U.S. 752, 763 (1969), and there
were no exigent circumstances, Officer Davis‘s warrantless search of the backpack
and the box violated the Fourth Amendment, and the DVDs and identification
cards she found inside should have been suppressed. The trial court‘s error in
ruling that appellant lacked standing to seek suppression was not harmless,
because, as the majority opinion notes, without the DVDs, the government could
not prove that they were counterfeit, and without the identification cards, the
government would have had trouble linking appellant to the DVDs.
      2
          On the present record, it certainly seems that trial-counsel should have
been able to determine, upon interviewing her client, (1) that the police did not find
DVDs on his person or within his reach during a search incident to arrest, and (2)
that the DVDs which the Gerstein affidavit stated were ―stored in a box adjacent to
door #2 on a crate‖ were not in plain sight and were under a backpack that police
would have had to open and search to find identifying information associating it
with appellant. With that information, even without knowing that a confidential
informant had led the officer to the box and backpack, counsel would have had
what she needed to file a motion to suppress, on Fourth Amendment grounds, the
box of DVDs and the backpack and its contents. After the trial testimony that first
informed trial counsel about the confidential informant‘s having led the officer to
the box of DVDs that was eight feet away from appellant at the time of his arrest,
the court continued the trial for twenty-three days to give counsel time to respond
to the new information. That was enough time for what the majority opinion calls
the ―aftermath of confusion‖ to dissipate. It is difficult for me to believe that
counsel did not have time to identify the Fourth Amendment issue and to find the
case law (the majority opinion cites Rakas v. Illinois, 439 U.S. 128, 138-40 (1978)
(―dispensing with the rubric of standing‖ for Fourth Amendment purposes)) that
she could have presented to the trial court to explain why appellant did not lack
―standing‖ to raise a Fourth Amendment claim.
                                          33

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 (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 US currency.
                                         34



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 (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

      3
         Appellant‘s trial counsel acknowledged that the Gerstein did not state that
the officer found the DVDs ―incident to [appellant‘s] arrest.‖
      4
         Thus, to be clear, I do not disagree that in some cases, the late disclosure
of information material to the outcome of a pretrial suppression hearing can violate
Brady. (I acknowledge that possibility even though, as some other courts have
observed, ―[s]uppression hearings do not determine a defendant‘s guilt or
punishment, yet Brady rests on the idea that due process is violated when the
withheld evidence is ‗material either to guilt or punishment. . . .‘‖ United States v.
Bullock, 130 F. App‘x 706, 723 (6th Cir. 2005) (quoting United States v. Bowie,
198 F.3d 905, 912 (D.C. Cir. 1999)).) I would agree, for example, that the
untimely disclosure of information that would impeach a government suppression-
hearing witness is covered by Brady.
      5
         Cf. United States v. Gamez-Orduno, 235 F.3d 453, 461-62 (9th Cir. 2000)
(―[T]he government had argued, in its briefs and orally at the suppression hearing,
that appellants lacked Fourth Amendment standing because they were trespassers
in the trailer with no connection to the Carrillos. . . . By withholding the report
while making factual representations inconsistent with it, the government violated
due process by ‗depriving [appellants] of liberty through a deliberate deception of
court and jury . . .[which is] as inconsistent with the rudimentary demands of
justice as is the obtaining of a like result by intimidation.‘‖ (quoting Brady, 373
                                         35

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


U.S. at 86); United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993) (―[T]he due
process principles announced in Brady and its progeny must be applied to a
suppression hearing involving a challenge to the truthfulness of allegations in an
affidavit for a search warrant.‖).
      6
             To the extent that the information at issue can be characterized as
information that the DVDs were not on appellant‘s person, there is another reason
why the delayed information was not a Brady violation: ―Evidence is not
‗suppressed‘ if the defendant either knew, or should have known, of the essential
facts . . . .‖ Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (internal quotation
marks omitted); Henson v. United States, 399 A.2d 16, 19 (D.C. 1979) (no Brady
violation in failure to disclose a transcript of the defendant‘s parole hearing
because the defendant was present at the parole hearing and was fully aware of the
existence and contents of the testimony given there); Smith v. United States, 363
A.2d 667, 668 (D.C. 1976) (―[T]he rule of Brady applies‖ where there is ―the
discovery after trial of information which had been known to the prosecution but
unknown to the defense.‖).
                                         36

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

(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



      7
          See also DeLuca v. State, 553 A.2d 730, 746 (Md. Ct. Spec. App. 1989)
(observing that the Supreme Court‘s opinion in Agurs ―was a full-fledged
explication of Brady,‖ which ―reaffirmed that ‗exculpatory‘ means ‗exculpatory‘
as it referred to the subject matter of Brady‘s duty to disclose as ‗evidence highly
probative of innocence.‘‖); Downs v. Fla. Dep’t of Corr., 738 F.3d 240, 260 (11th
Cir. 2013) (―[T]he existence of informants . . . constitutes Brady material only
when the informant . . . would offer or lead to exculpatory or impeaching
information favorable to the defendant.‖); United States v. Perdue, 8 F.3d 1455,
1461 (10th Cir. 1993) (explaining that the Brady requirement that the prosecution
―disclose evidence favorable to the accused‖ was not implicated because, even
though the withheld evidence might have assisted the defense, it was neither
impeachment nor exculpatory evidence and thus was not ―favorable‖ to the
                                        37




      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



defendant); Barton, 995 F.2d at 934 (rejecting as ―without merit‖ the argument that
because the introduction of certain inculpatory evidence (an odorless marijuana
plant found in the defendant‘s home) at a suppression hearing ―would have
resulted in the exclusion of incriminating evidence‖ (because it would have
undermined police officer‘s sworn statement in a warrant affidavit that they
smelled marijuana in the defendant‘s house) the evidence was thereby exculpatory;
and stating that ―[w]hile it is true that resolution of a suppression motion can and
often does determine the outcome of the case, . . . the successful suppression of
incriminating evidence is unrelated to the actual culpability of an accused. . . .
Because the marijuana evidence was inculpatory, the failure to preserve this
evidence does not amount to the destruction of exculpatory evidence in violation of
Brady and its progeny.‖); United States v. Kidding, 560 F.2d 1303, 1313 (7th Cir.
1977) (―Defendant has not cited to us, nor have we found, any case which
recognizes a defendant‘s due process right to inculpatory evidence in the
possession of the government.‖).
                                         38

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.


      8
          Cf. Weatherford v. Bursey, 429 U.S. 545, 559-60 (1977) (―It does not
follow from the prohibition against concealing evidence favorable to the accused
that the prosecution must reveal before trial the names of all witnesses who will
testify unfavorably. There is no general constitutional right to discovery in a
criminal case, and Brady did not create one; . . . . Brady is not implicated here
where the only claim is that the State should have revealed that [it] would present
the eyewitness testimony of a particular agent against the defendant at trial.‖).
                                          39

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
                                         40

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


      9
         The federal circuit opinions cited in the majority opinion also involved the
untimely disclosure of information that could have been used to impeach the
testimony of a government witness. In Smith v. Black, 904 F.2d 950, 965-66 (5th
Cir. 1990), vacated on other grounds, 503 U.S. 930 (1992), the Brady violation
was the government‘s failure to disclose written witness statements, a lineup
report, police reports and notes from a radio call that could have impeached a
police sergeant‘s testimony at a suppression hearing. In Nuckols v. Gibson, 233
F.3d 1261, 1267 (10th Cir. 2000), the withheld information ―would have provided
the defense with the opportunity to call into question whether Ware had a motive
for his testimony regarding the initiation of the interrogation resulting in
Petitioner‘s confession.‖
                                          41

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-


      10
        Note that this language is included in a section entitled ―Additional
impeachment information that must be disclosed.‖ USAM § 9-5.001 (C) (italics
added).
                                          42

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


      11
           The Massachusetts District Court rules have been called ―the most
extensive local criminal discovery rules in the nation.‖ United States v. Jones, 620
F. Supp. 2d 163, 170 (D. Mass. 2009) (quoting an American College of Trial
Lawyers report).
      12
           See Jones, 620 F. Supp. 2d at 170-73.
      13
          The driving force behind Brady is that ―absence of the withheld evidence
may result in the conviction of an innocent defendant . . . .‖ Connick v. Thompson,
131 S. Ct. 1350, 1385 (2011); see also United States v. Brown, No. 13-4654, 2014
U.S. App. LEXIS 11034, at *7 (4th Cir. June 13, 2014) (―‗The Brady right . . .
exists to . . . minimize the chance that an innocent person would be found
guilty.‘‖). That concern is not implicated when the undisclosed information is
information that would enable a defendant to obtain the suppression of inculpatory
evidence and thereby avoid conviction. I note that I have not been able to find a
single other opinion that squarely holds that the government has a duty under
Brady to disclose non-exculpatory, non-impeaching information on the sole basis
that it could provide a basis for a suppression motion. Perhaps that is in part
because — unlike the due process requirement that the prosecution disclose
exculpatory evidence and not rely on perjured testimony — the exclusionary rule,
whose application suppression motions seek, is not a constitutional requirement.
                                         43

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.




United States v. Leon, 468 U.S. 897, 905-06 (1984) (explaining that the
exclusionary rule is not required by the Fourth or Fifth Amendments).
      14
          As the majority opinion acknowledges, counsel never mentioned Brady
by name. The record — specifically, counsel‘s statements that ―we really don‘t
know who the tip is from‖ and that a continuance of the trial would give her ―time
to investigate this source‖ — suggests that she may instead have been expressing
concern that she had not had an opportunity to file a motion requesting disclosure
of the identity of the confidential informant to pursue the possibility that the
informant might give testimony undercutting the evidence that appellant
constructively possessed the box of DVDs. Cf. Goodson v. United States, 760
A.2d 551, 552-53 (D.C. 2000).
