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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                No. 13-CM-1173

                           JAMEL EVANS, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CMD-6109-13)

                        (Hon. John McCabe, Trial Judge)

(Argued December 16, 2014                                 Decided August 6, 2015)

      Murray Kamionski for appellant.

      James A. Ewing, Assistant United States Attorney, with whom Ronald C.
Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Chrisellen R. Kolb, and Karen Seifert, Assistant United States Attorneys,
were on the brief, for appellee.

      Before BECKWITH and MCLEESE, Associate Judges, and FERREN, Senior
Judge.

      Opinion for the court by Associate Judge MCLEESE.

      Concurring opinion by Senior Judge FERREN at page 43.

    Opinion concurring in part and dissenting in part by Associate Judge
BECKWITH at page 47.
                                        2

      MCLEESE, Associate Judge:         Appellant Jamel Evans challenges his

convictions for attempted possession of unregistered firearms and attempted

unlawful possession of ammunition.       Mr. Evans argues that the trial court

erroneously admitted evidence obtained in violation of the Fourth Amendment and

that the evidence was insufficient to support his convictions. We agree with Mr.

Evans’s Fourth Amendment claim but conclude that the evidence was sufficient.

We therefore reverse and remand for further proceedings.



                                        I.



      Viewed in the light most favorable to the verdict, the government’s evidence

at trial indicated the following. In April 2013, Mr. Evans called 911 to report a

domestic-violence assault. When Officer Daniel Gray responded, he found Mr.

Evans and Shantay Taylor arguing in the parking lot of an apartment building. Mr.

Evans was bleeding, and Ms. Taylor had blood on her clothes. Ms. Taylor said

that Mr. Evans had punched her several times. Mr. Evans stated that the two had

been in his apartment and that Ms. Taylor had hit him, scratched him, and

assaulted him with an ashtray. Mr. Evans told the police that he was trying to get

Ms. Taylor out of his apartment. Neither Mr. Evans nor Ms. Taylor indicated that

anyone else was involved in the incident or was present in Mr. Evans’s apartment.
                                        3



      While Officer Gray and his partner were talking with Mr. Evans and Ms.

Taylor, Officer Michael Wendt arrived and walked into the apartment building.

Officer Wendt saw blood outside of apartment 201, and the door to that apartment

was open. Officer Wendt entered the apartment and looked through the apartment

room by room. In one bedroom, he saw a gun leaning against the wall of an open

closet. He also saw a .38-caliber round of ammunition, sitting on a dresser in the

same bedroom. Officer Wendt entered a second bedroom but did not see any

contraband in plain view in that bedroom.



      In a subsequent search of the apartment pursuant to a search warrant, the

police recovered a 16-gauge shotgun from a bedroom closet. There was men’s

clothing in that closet. 1 The bedroom was messy and contained an unmade bed. In

the same bedroom, the police recovered the round of .38-caliber ammunition from




         1
            The government introduced a number of photographs into evidence at
trial, including photographs depicting the contents of the closet. Those
photographs were returned to the prosecutor at the close of the trial. Although
exhibits admitted into evidence are part of the record on appeal, D.C. App. R.
10 (a)(1), neither party has taken steps to make the photographs available to this
court. The parties do not appear to dispute the contents of the photographs, and we
therefore rely on the trial court’s findings and the undisputed statements of the
parties about the photographs.
                                          4

the top of the dresser. On top of that dresser the police also found a pill bottle with

the name Yvette Murray.



      In a closet in a second bedroom, the police found a .22-caliber rifle. It is

unclear whether the door to that closet was open or closed when the police entered

the apartment. The rifle was right inside the door to the closet, in the same

position as the gun in the first closet. The second bedroom also contained an

animal cage. On top of that cage was a box containing rounds of 9-millimeter

ammunition. An extra-large men’s jacket was also lying on top of the cage. The

police found six zip lock bags containing marijuana in one of the pockets of that

jacket. It is unclear whether the second bedroom contained a bed. The police

found a judicial summons in the apartment. The name “Christina Brunson” and

the apartment’s address appeared on that summons. Finally, Mr. Evans had not

registered the guns or any .38-caliber weapon.



      The trial court found Mr. Evans guilty of attempted possession of both guns

and of the round of .38-caliber ammunition. The trial court acquitted Mr. Evans of

the charges relating to the ammunition inside the box in the second bedroom and

the marijuana inside the coat in that bedroom.
                                        5

                                       II.

      Mr. Evans argues that Officer Wendt’s initial search of the apartment was

unlawful under the Fourth Amendment and that the evidence of the contraband

recovered from the apartment was inadmissible. We agree.




                                       A.




      We first provide additional factual background relevant to Mr. Evans’s

Fourth Amendment claim. The evidence indicated that Officer Wendt arrived at

the parking lot outside 622 Eastern Avenue within two minutes after he heard the

radio call concerning an alleged domestic-violence incident at that address. When

he arrived, two officers were already separately interviewing Mr. Evans and Ms.

Taylor. Officer Wendt saw blood on Mr. Evans’s head and heard Mr. Evans say

that he been hit with an ashtray. Officer Wendt could see that Ms. Taylor was

excited, but he did not speak with her. After standing and watching for less than

five minutes, Officer Wendt entered the apartment building.




      When Officer Wendt saw blood outside of Apartment 201, he entered that

apartment. He entered because he was concerned that another victim might be
                                         6

inside, he was looking for weapons, and he wanted to determine whether the

apartment needed to be secured as a crime scene. Officer Wendt looked through

the apartment room by room, checking whether anyone else was in the apartment.




       After Officer Wendt noticed a gun and a round of ammunition in the

apartment, police officers secured the apartment and obtained an emergency search

warrant. The affidavit in support of the search warrant described the altercation

between Ms. Taylor and Mr. Evans. The affidavit also described Officer Wendt’s

entry into apartment 201 and his discovery of a shotgun and a round of

ammunition. The affidavit also indicated that Ms. Taylor told police that Mr.

Evans sold marijuana and that she had seen Mr. Evans bagging up marijuana in the

apartment that morning. The affidavit alleged that there was probable cause to

believe that the apartment contained the contraband Officer Wendt had seen,

additional weapons and ammunition, marijuana, and other evidence of a drug

offense. 2


             2
             The search warrant was admitted into evidence in connection with the
motion to suppress. Although the parties agreed that the evidence admitted in
connection with the motion to suppress could also be considered as evidence with
respect to guilt or innocence, neither the parties nor the trial court treated the
allegations in the affidavit in support of the search warrant as substantive evidence
on the issue of guilt or innocence. For that reason, and because consideration of
those allegations as substantive evidence would raise significant issues of
                                                                       (continued…)
                                         7




                                         B.




      The United States argues primarily that Officer Wendt’s warrantless entry

was lawful under the “emergency aid” exception to the warrant requirement. We

conclude otherwise.




      The Fourth Amendment permits an officer to enter a dwelling without a

warrant if the officer has “an objectively reasonable basis for believing” that entry

is necessary “to render emergency assistance to an injured occupant or to protect

an occupant from imminent injury.” Brigham City, Utah v. Stuart, 547 U.S. 398,

406, 403 (2006). Although this court has previously required that police have

“probable cause to believe that immediate entry [was] necessary,” United States v.

Booth, 455 A.2d 1351, 1355 (D.C. 1983), we have not had occasion to address that

requirement in light of Brigham City’s use of the phrase “reasonable basis for

believing.” Compare, e.g., United States v. Infante, 701 F.3d 386, 392-93 (1st Cir.

2012) (“reasonable-basis standard “approximat[es] probable cause”), with, e.g.,

(…continued)
admissibility, we do not consider those allegations in assessing the sufficiency of
the evidence.
                                        8

United States v. Porter, 594 F.3d 1251, 1258 (10th Cir. 2010) (reasonable-belief

standard “is more lenient than the probable cause standard”). We need not address

the potential implications of Brigham City in this case. Even applying a less

stringent reasonable-belief standard, we conclude that the police did not have

adequate reason to believe that immediate entry was necessary to provide

emergency aid.




      As a preliminary matter, we note that the United States bore the burden of

establishing the legality of Officer Wendt’s warrantless entry. See, e.g., Womack

v. United States, 673 A.2d 603, 617 (D.C. 1996) (“[I]f a warrantless search or

seizure produced evidence that the government seeks to introduce at trial, the

burden is on the government to overcome the presumption of illegality by

justifying the search based on facts that could bring it within certain recognized,

limited exceptions to the warrant requirement.”); Sandoval v. Las Vegas Metro.

Police Dep’t, 756 F.3d 1154, 1164 (9th Cir. 2014) (“the government bears the

burden of showing specific and articulable facts to justify” invocation of

emergency-aid exception) (internal quotation marks omitted). Without deciding

the issue, we also accept the United States’s statement during oral argument that

the legality of Officer Wendt’s entry must be assessed based not solely on what

Officer Wendt knew at the time of entry, but also on what the other investigating
                                         9

officers on the scene knew at that time. Cf., e.g., Parsons v. United States, 15 A.3d

276, 279 (D.C. 2011) (“The doctrine of collective knowledge is firmly established

in this jurisdiction and provides that although individual officers may not have

sufficient knowledge to establish probable cause, the information collectively

known, even if not communicated by one officer to the other, can be sufficient.”)

(internal quotation marks and brackets omitted); Turner v. United States, 623 A.2d

1170, 1172 n.2 (D.C. 1993) (collective-knowledge doctrine “must apply equally to

information augmenting or diminishing the objective basis the police have for

conducting a seizure”).




      In this case, Officer Wendt knew at the time of entry that he had been called

to the scene to respond to an alleged incident of domestic violence; that other

officers were separately interviewing a man and a woman in the parking lot of the

building to which the police had been called; that the man was bleeding profusely

from the head, all over the ground; that the man said that he had been hit by an

ashtray; and that there was blood leading into the apartment. Other officers on the

scene had interviewed Mr. Evans and Ms. Taylor for five or ten minutes before

Officer Wendt entered the apartment. Officer Gray had spoken with Ms. Taylor,

who described an altercation involving only herself and Mr. Evans. It is less clear

whether Officer Gray had spoken to Mr. Evans by the time Officer Wendt entered
                                         10

the apartment, or precisely what Mr. Evans had said to another officer who spoke

to Mr. Evans first. It appears, however, that by the time of Officer’s Wendt’s entry

the police also had an account from Mr. Evans describing a physical altercation

involving only Mr. Evans and Ms. Taylor.




      In defending the legality of Officer Wendt’s entry, the United States

contends that Officer Wendt could reasonably have feared that there might have

been someone else injured in the apartment. Although it was of course possible

that someone else was in the apartment in need of assistance, we must apply a

reasonable-basis standard, not a bare-possibility standard.    See, e.g., Nelms v.

Wellington Way Apts., LLC, 513 F. App’x 541, 545 (6th Cir. 2013) (unpub.) (under

emergency-aid doctrine, officers’ “decision to enter must be based on more than a

hunch or the mere possibility that someone inside needs immediate aid”) (internal

quotation marks omitted); cf., e.g., Ramsey v. United States, 73 A.3d 138, 152

(D.C. 2013) (“bare possibility” insufficient to establish reasonable articulable

suspicion to support investigative detention).




      At the time of the entry in this case, the police had no specific reason to

believe that an unknown third party was in the apartment and in need of emergency
                                         11

aid.   Mr. Evans and Ms. Taylor had given accounts of the incident without

suggesting that a third party was in the apartment. Moreover, those accounts and

the officers’ observations of the blood flowing from Mr. Evans fully explained the

blood Officer Wendt saw by the apartment. It is true that Mr. Evans and Ms.

Taylor might have been lying to cover up the fact that an injured third party was

still in the apartment. But the United States has not pointed to anything that would

have given the officers reason to believe that Mr. Evans and Ms. Taylor in fact

were lying. Courts in other jurisdictions addressing comparable circumstances

have found inadequate justification for a warrantless entry. See, e.g., United States

v. Wolfe, 452 F. App’x 180, 183-84 (3d Cir. 2011) (unpub.) (officer’s warrantless

search of second floor of home unreasonable under emergency-aid doctrine, where

police were admitted to home after responding to 911 call, victim was bleeding

from hand and told police that he had been shot in hand while outside home, and

victim’s mother said that no one else was present in home; searching officer had no

reason to believe trail of blood on stairs to second floor belonged to anyone other

than victim or that additional victims or threats were in home); Hannon v. State,

207 P.3d 344, 344-48 (Nev. 2009) (officer’s warrantless entry into apartment

unreasonable under emergency-aid doctrine, where officer responded to 911 call

for possible domestic-violence assault, man and woman answered door, both

appeared upset but uninjured, and both said that no one else was present; officer
                                        12

had no reason “to believe that [the] apartment may have harbored an unidentified

third person in need of emergency assistance”); People v. Allison, 86 P.3d 421,

427-30 (Colo. 2004) (officer’s warrantless search of second floor of residence

unreasonable under emergency-aid doctrine, where police officers responded to

911 call, woman with bloody nose let officers into residence, residence was in

disarray, woman initially denied having been assaulted but eventually admitted that

her husband had assaulted her, husband came downstairs and was placed under

arrest, woman was removed from residence for interfering with officers, and both

woman and husband described physical fight involving only two of them; “the

police here had no indication that children were involved or that any third party

might have participated in the dispute and needed emergency assistance”);

Richardson v. City of Antioch, 722 F. Supp. 2d 1133, 1141-42 (N.D. Cal. 2010)

(officer’s warrantless entry into home was unreasonable under emergency-aid

doctrine, where apparent victims were outside home and “safely in company of

police,” there were no signs of danger coming from home, and twenty-six minutes

passed from time apparent victims exited home to time police entered home). 3


         3
            Although the United States suggests in passing in a footnote that the
police could reasonably have been concerned about possible evidence tampering,
we conclude that immediate warrantless entry to prevent evidence tampering was
not reasonably necessary. As we have already explained, the police lacked a
reasonable basis to believe that a third party was in the apartment. See, e.g.,
United States v. Dawkins, 305 U.S. App. D.C. 83, 89-90, 17 F.3d 399, 405-06
                                                                   (continued…)
                                         13




                                         C.




      The United States also advances two arguments in support of the contention

that the evidence recovered from the apartment should have been admitted even if

Officer Wendt’s entry was unlawful. First, the United States argues that the

seizure of the guns and ammunition was not the forbidden fruit of Officer Wendt’s

entry, because the police officers seized those items pursuant to a search warrant

that was adequately supported by probable cause to believe that the apartment

contained evidence of assault and of Mr. Evans’s possession of marijuana.

Second, the United States argues that the police in any event acted in good faith.

The United States did not make these arguments in the trial court, and the trial

court did not address them. Nevertheless, “we may affirm a judgment on any valid

ground, even if that ground was not relied upon by the trial judge or raised or

considered in the trial court, so long as doing so would not be procedurally unfair.”


(…continued)
(warrantless entry into dwelling to prevent destruction of evidence was
unreasonable, because officers lacked reasonable belief that anyone was inside
dwelling), amended, 356 U.S. App. D.C. 61, 327 F.3d 1198 (1994); cf. Illinois v.
McArthur, 531 U.S. 326, 333-34 (2001) (discussing with approval technique of
sealing apartment from outside while obtaining warrant, in order to preserve
evidence).
                                        14

Logan v. LaSalle Bank Nat’l Ass’n, 80 A.3d 1014, 1020-21 (D.C. 2013) (internal

quotation marks omitted); Jaiyeola v. District of Columbia, 40 A.3d 356, 372-73

(D.C. 2012) (in absence of procedural unfairness, court may in its discretion

uphold judgment on theory different from that relied upon by trial court); cf.

generally Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 39 (1989) (Supreme

Court will consider grounds for affirmance not “raised below . . . only in

exceptional cases”) (internal quotation marks omitted). We do not find the United

States’s newly raised arguments to provide a basis for affirmance.




                                        1.




      We conclude that considerations of procedural fairness preclude affirmance

based on the United States’s forbidden-fruit argument.         The United States

acknowledges that its argument on this point could prevail only if, assuming that

Officer Wendt had not entered the apartment and seen the gun and the round of

ammunition, the officers nevertheless would have obtained a warrant to search for

evidence of the assault or of Mr. Evans’s alleged marijuana possession.       Cf.

Murray v. United States, 487 U.S. 533, 543 (1988) (under independent-source

doctrine, unlawful warrantless entry into warehouse would not require suppression
                                        15

of evidence obtained during subsequent search of warehouse pursuant to warrant,

if (1) warrant is based on information independent of what officers saw during

initial warrantless entry and (2) trial court makes factual finding that officers

would have sought warrant even if they had not previously entered warehouse). In

this case, however, the trial court had no occasion to make a factual finding as to

what the officers would have done if Officer Wendt had not entered the apartment.

Moreover, the officers did not testify about what they would have done if Officer

Wendt had not entered the apartment.




      The United States argues, however, that this court could itself conclude that

the officers would have gotten a warrant even if Officer Wendt had not entered the

apartment. Specifically, the United States contends that the warrant itself proves

that point, because the warrant refers only to a drug offense when specifying the

violation of law at issue. We disagree with the United States’s contention in three

respects. First, the search warrant does not shed very direct light on what the

officers would have done if Officer Wendt had not entered the apartment.

Although the warrant’s sole legal citation involves a drug violation, the warrant

also recites the allegation that police had seen a firearm in the apartment. In

addition, the warrant authorizes the police to search for and seize that firearm and

any other firearms, ammunition, and related paraphernalia. The current record thus
                                         16

is not clear about what the officers would have done if Officer Wendt had not

entered the apartment. Second, in any event, it is not our function to decide issues

of fact. See, e.g., V.C.B. v. United States, 37 A.3d 286, 291 (D.C. 2012) (“It is

incumbent upon us, in this case as in any other, to eschew appellate fact-finding

and to avoid usurping the function of the trial court.”) (citation and internal

quotation marks omitted); cf. In re L.J., 906 A.2d 249, 254-55 n.5 (D.C. 2006)

(declining to consider alternative ground for affirmance raised for first time on

appeal, because trial court had not made necessary factual findings); cf. Murray,

487 U.S. at 542-43 (where trial court made no explicit finding as to whether

officers would have obtained warrant to search warehouse if they had not

previously entered warehouse without warrant and seen evidence, court of appeals

could not resolve that issue; “[I]t is the function of the District Court rather than

the Court of Appeals to determine the facts, and we do not think that the Court of

Appeals’ conclusions are supported by adequate findings.”). Third, it would be

particularly inappropriate for this court to decide an essentially factual question

raised for the first time on appeal, because such an approach would deprive Mr.

Evans of the opportunity to develop a record on that factual issue. See, e.g., In re

Walker, 856 A.2d 579, 586 (D.C. 2004) (declining to affirm based on alternative

argument not raised in or decided by trial court; such affirmance would be
                                           17

procedurally unfair, because appellant had no “opportunity to make an appropriate

factual . . . presentation with respect thereto”).




      At oral argument, the United States contended in the alternative that the case

should be remanded to the trial court for further proceedings on the question

whether the officers would have sought a warrant if Officer Wendt had not entered

the apartment. We disagree. First, the United States raised this contention for the

first time at oral argument, and Mr. Evans therefore has not had an opportunity to

brief the issue. See, e.g., Jung v. Jung, 844 A.2d 1099, 1112 n.9 (D.C. 2004) (“We

usually do not consider claims raised for the first time during oral argument

because of the unfairness to the opponent, who has not had an opportunity to

consider and present a response.”). Second, the government bore the burden of

proof on the question whether the police would have sought a warrant even if

Officer Wendt had not entered the apartment. See, e.g., State v. Cardenas, 155

P.3d 704, 709-10 (Idaho 2006) (“The burden of proof is on the prosecution to

establish an independent source.”) (internal quotation marks omitted); cf. Nix v.

Williams, 467 U.S. 431, 444 (1984) (under inevitable-discovery doctrine,

government must “establish by a preponderance of the evidence that the

information ultimately or inevitably would have been discovered by lawful

means”); Barnett v. United States, 525 A.2d 197, 200 (D.C. 1987) (“the burden is
                                           18

on the government to go forward with evidence that will bring the case within one

or more exceptions to the exclusionary rule”).          The United States had a full

opportunity at the original suppression hearing to develop the factual record it

deemed necessary to support the admissibility under the Fourth Amendment of the

evidence at issue. We are not inclined to remand to give the United States a

second opportunity to develop the record on this point. Cf., e.g., Barnett, 525 A.2d

at 200 (declining United States’s request for remand to introduce additional

evidence with respect to Fourth Amendment motion; “We are not persuaded that

the government should have a second chance to elicit facts supporting an

affirmance of the trial court's ruling as the record indicates that it had a full and fair

opportunity to present whatever facts it chose to meet its burden of justifying the

warrantless arrest and resulting search and seizure.”); United States v. Leonzo, 311

U.S. App. D.C. 134, 136, 50 F.3d 1086, 1088 (1995) (declining to permit United

States to present new evidence at resentencing after remand, because United States

“had the burdens of production and persuasion, and [court saw] no reason why

[United States] should get a second bite at the apple”).
                                          19

                                          2.




      The United States also argues that suppression is not appropriate because the

officers acted in objectively reasonable good faith. Specifically, the United States

argues that Officer Wendt’s decision to enter the apartment without a warrant was

“close enough to the line of validity” to make it reasonable for the officers to

thereafter rely on the trial court’s decision to issue a search warrant authorizing the

police to seize the evidence at issue. Because that argument raises a pure question

of law, and Mr. Evans had an opportunity to respond to that argument in this court,

we exercise our discretion to consider it, even though the United States did not

raise the argument in the trial court and the court did not rule on the argument.

See, e.g., Sheetz v. District of Columbia, 629 A.2d 515, 519 n.5 (D.C. 1993)

(considering alternative ground for affirmance not raised in trial court, where

alternative ground was legal in character and appellants had adequate opportunity

to respond).    We conclude, however, that the United States’s argument is

foreclosed by our decision in Smith v. United States, 111 A.3d 1 (D.C. 2014).




      In Smith, police officers obtained an arrest warrant for the defendant based

on evidence they had seized during an earlier traffic stop. 111 A.3d at 4. When
                                          20

the police executed the arrest warrant, they recovered marijuana. Id. Concluding

that the original traffic stop was unlawful, the trial court suppressed the evidence

seized during that traffic stop. Id. at 5. The trial court declined, however, to

suppress evidence of the marijuana the police seized during execution of the arrest

warrant, because the officers who executed the warrant were entitled to rely on the

issuance of the warrant. Id. at 5-6.




      On review, this court held that the trial court should also have suppressed the

evidence of the marijuana seized during execution of the arrest warrant. 111 A.3d

at 6-9.   The court first ruled that the initial traffic stop violated the Fourth

Amendment, even assuming that the traffic stop rested on a reasonable mistake of

law. Id. at 6-7. The court further concluded that the issuance of an arrest warrant

based on illegally obtained evidence did not “purge the taint” of the initial

illegality. Id. at 7-9. Finally, the court explained that, under our cases, suppression

was required under the exclusionary rule even if the initial traffic stop “was close

enough to the line of validity” to constitute a “good faith attempt to comply with

the” law. Id. at 8 n.9 (internal quotation marks omitted; citing In re T.L., 996 A.2d

805 (D.C. 2010)).
                                          21

      Although Smith involved an arrest warrant and the present case involves a

search warrant, we see no reason why that detail should affect the analysis. We

therefore view the exclusionary-rule analysis in Smith as fully applicable to the

present case. Under the logic of Smith, the subsequent issuance of the search

warrant in this case, based on information obtained during Officer Wendt’s

unlawful entry, did not operate to attenuate the illegality of Officer Wendt’s entry.

Moreover, under Smith, suppression is required in this case without regard to

whether Officer Wendt’s entry was “close enough to the line of legality” as to

reflect a good-faith effort to comply with the law. 4




      Because the evidence discovered as a result of Officer Wendt’s entry in the

apartment was inadmissible, we reverse Mr. Evans’s convictions.




          4
            The United States has filed a petition for rehearing or rehearing en banc
in Smith, contending that the Supreme Court’s subsequent decision in Heien v.
North Carolina, 138 S. Ct. 530 (2014), undermines Smith’s holding that the traffic
stop at issue in Smith violated the Fourth Amendment even if the traffic stop rested
on a reasonable mistake of law. The United States did not seek rehearing with
respect to Smith’s exclusionary-rule analysis. In the present case, the United States
has neither relied on Heien nor argued that Officer Wendt’s entry was lawful under
the Fourth Amendment because it rested on a reasonable mistake of law.
                                         22

                                        III.



      Mr. Evans argues that the evidence did not permit the trial court to find

beyond a reasonable doubt that he possessed the guns and the round of

ammunition. Although it is unclear whether the United States could feasibly retry

Mr. Evans in light of our suppression ruling, we nevertheless address Mr. Evans’s

challenge to the sufficiency of the evidence, because a ruling in Mr. Evans’s favor

on that issue would bar retrial on Double Jeopardy grounds. See, e.g., Hobbs v.

United States, 18 A.3d 796, 802 (D.C. 2011) (even when reversing on other

grounds, “we are obliged to address” sufficiency claims) (brackets and internal

quotation marks omitted); cf. also Kelly v. United States, 639 A.2d 86, 89 (D.C.

1994) (“It would generally be preferable, for reasons of judicial economy, for the

court to address the sufficiency of the evidence before remanding the case for a

new trial.”). We conclude that the evidence was sufficient to support Mr. Evans’s

convictions.



      In considering a challenge to the sufficiency of the evidence, “we view the

evidence in the light most favorable to the government, giving full play to the right

of the jury to determine credibility, weigh the evidence, and draw justifiable

inferences of fact, and making no distinction between direct and circumstantial
                                          23

evidence.” Medley v. United States, 104 A.3d 115, 127 n.16 (D.C. 2014) (internal

quotation marks omitted). “We evaluate sufficiency based on the evidence that

was before the trial court, even if it was admitted erroneously.” Best v. United

States, 66 A.3d 1013, 1019 (D.C. 2013) (citing Lockhart v, Nelson, 488 U.S. 33,

40-42 (1988)). “[T]he evidence is sufficient if, after viewing it in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt . . . .” Smith v. United

States, 55 A.3d 884, 887 (D.C. 2012) (internal quotation marks omitted). This

court will not reverse a trial court’s factual findings after a bench trial unless those

findings are “plainly wrong or without evidence to support [them].” D.C. Code

§ 17-305 (a) (2012 Repl.). “[A]lthough a [fact-finder] is entitled to draw a vast

range of reasonable inferences from evidence, [the fact-finder] may not base a

verdict on mere speculation.” Schools v. United States, 84 A.3d 503, 508 (D.C.

2013) (internal quotation marks and citation omitted). “[A]ppellate review of the

sufficiency of the evidence is not toothless,” and “[w]e have an obligation to take

seriously the requirement that the evidence in a criminal prosecution must be

strong enough that a [fact-finder] behaving rationally really could find guilt beyond

a reasonable doubt.” Rivas v. United States, 783 A.2d 125, 136 (D.C. 2001) (en

banc).
                                            24

       Although Mr. Evans was charged with and found guilty of attempted

possession, the trial court did not rely on the doctrine of attempt in finding Mr.

Evans guilty, instead concluding that Mr. Evans constructively possessed the guns

and the round of ammunition. See generally, e.g., Evans v. United States, 779

A.2d 891, 894 (D.C. 2001) (“a person charged with an attempt to commit a crime

may be convicted even though the evidence shows a completed offense”) (internal

quotation marks omitted). In this court, the government also does not rely on the

law of attempt, or on other doctrines such as aiding and abetting, instead relying

solely on the doctrine of constructive possession to defend the sufficiency of the

evidence. We limit our analysis accordingly. See, e.g., United States v. Truong,

425 F.3d 1282, 1289 n.2 (10th Cir. 2005) (declining to consider possible

alternative basis for sustaining jury verdict, where fact-finder did not consider

basis and government did not argue basis on appeal); cf. Chiarella v. United States,

445 U.S. 222, 237 (1980) (“[W]e cannot affirm a criminal conviction on the basis

of a theory not presented to the jury . . . .”).



       To establish that Mr. Evans constructively possessed the guns and the round

of ammunition, the government had to prove beyond a reasonable doubt that Mr.

Evans (1) knew of the presence of those items, (2) had the power to exercise

dominion and control over the items, and (3) intended to exercise dominion and
                                        25

control over the items.    See, e.g., Schools, 84 A.2d at 507-08.       Mr. Evans

challenges the sufficiency of the evidence with respect to all three of these

requirements.




       Before addressing the three requirements at issue, we summarize the key

evidence, viewed in the light most favorable to the verdict, and the inferences that

in our view could reasonably be drawn from that evidence. (1)           Mr. Evans

described the apartment as his and told the police he was trying to get Ms. Taylor

out of the apartment. (2) By inference, Mr. Evans lived in and had control over

the apartment. (3) Mr. Evans and Ms. Taylor had been in the apartment during

their altercation a brief time before the police arrived. (4) There was no evidence

that anyone else was in the apartment at the time of the altercation. (5) There was

no evidence as to when anyone other than Mr. Evans and Ms. Taylor had last been

in the apartment. (6) One of the guns was in plain view in a bedroom, inside an

open closet that contained men’s clothing. (7) The round of ammunition was also

in plain view in that bedroom. (8) There was an unmade bed in that bedroom. (9)

Although there was a second bedroom in the apartment, it was unclear whether

there was a bed in that bedroom, which contained a dog cage. (10) The second

gun was inside a closet in that bedroom, near the door and apparently unhidden.

(11)   There was no evidence that a man other than Mr. Evans lived in the
                                         26

apartment, had control over the apartment, or had visited the apartment. (12) Ms.

Taylor had been in the apartment, Ms. Murray may have been in the apartment on

an earlier occasion, and Ms. Brunson had at some unspecified time received mail at

the apartment. (13) There was no evidence that the officers saw, or that the

photographs showed, any women’s clothing in the apartment at the time of the

search.




      Although Mr. Evans argues that this evidence was insufficient to support a

finding beyond a reasonable doubt that he was aware of the guns and the round of

ammunition, we conclude that a finder of fact could rationally find knowledge

beyond a reasonable doubt. See, e.g., Stewart v. United States, 395 A.2d 3, 6 (D.C.

1978) (sufficient evidence that defendant Stewart knew of contraband in home,

where defendant Stewart lived in home but was not present at time of search, and

substantial quantity of contraband was readily observable throughout home); cf.,

e.g., Schools, 84 A.3d at 503 (in finding sufficient evidence that defendant knew

about items of contraband in apartment in which defendant lived, court points out

that items “were in plain view, supporting an inference that [appellant] knew of

them”); Smith, 55 A.3d at 887 (if contraband is found in occupant’s home, “a juror

may infer that the occupant has . . . knowledge of its presence”).
                                         27




      Mr. Evans also contends that he was not in a position to exercise dominion

and control over the guns and the round of ammunition, because he was outside the

apartment at the moment the police entered the apartment and seized those items.

Our cases foreclose that contention. See, e.g., Moore v. United States, 927 A.2d

1040, 1050-51 (D.C. 2007) (although defendant was absent from apartment at time

contraband was discovered, sufficient evidence that defendant had ability to

exercise dominion and control over contraband, where defendant lived in

apartment, had key to apartment, and was stopped driving car in immediate

vicinity during search of apartment); cf., e.g., United States v. Kitchen, 57 F.3d

516, 521 (7th Cir. 1995) (although defendant was incarcerated at time gun was

recovered, “the jury might nevertheless have determined he constructively

possessed the guns before he was incarcerated,” when he would have “had the

power to exercise control over the [guns]”); United States v. Horodner, 993 F.2d

191, 193 (9th Cir. 1993) (defendant had constructive possession of gun left at shop

for repair, because he retained right to possess and control gun).




      Relatedly, Mr. Evans argues that the evidence failed to establish that the

guns were “convenient of access and within reach.” Although our cases have not
                                         28

always been clear on this point, the requirement that a gun be “convenient of

access and within reach” is a component of offenses involving “carrying on or

about the person,” not of offenses involving the broader concept of possession.

See, e.g., White v. United States, 714 A.2d 115, 119-20 (D.C. 1998) (“‘possession’

is a broader concept than to ‘carry on or about the person’”; to establish carrying,

“the government’s evidence must go beyond mere proof of constructive possession

and must show that the pistol was in such proximity to the person as to be

convenient of access and within reach”) (internal quotation marks omitted);

Halicki v. United States, 614 A.2d 499, 503 n.9 (D.C. 1992) (court has

occasionally equated concepts of “carrying” and “possession” without discussing

whether concepts are in fact same).       Because Mr. Evans was convicted of

possessory offenses, the evidence need not have established that the guns were

convenient of access and within reach.




      Finally, Mr. Evans argues that the evidence failed to establish that he

intended to exercise dominion and control over the guns and the round of

ammunition. We conclude that the evidence was sufficient on this point as well.
                                           29

        Under the language of some of our cases, the evidence of intent to exercise

dominion and control in this case seems sufficient. For example, we have said

that,




        [w]here knowledge and ability to exercise control over contraband are
        shown, the additional evidence necessary to prove constructive
        possession is comparatively minimal. We have recognized that such
        additional evidence may include evidence showing the accused’s
        control or occupancy of the premises in which the contraband is
        found. Indeed, a jury is generally entitled to infer that a person
        exercises constructive possession over items found in his home; that
        is, by virtue of the contraband being found in an occupant's home, a
        juror may infer that the occupant has both knowledge of its presence
        and intent to exercise dominion and control of the contraband. It is
        usually easy to establish that the owner of a car or the occupant of a
        living area has constructive possession of illicit items recovered from
        these places. Although this inference does apply even if a person
        shares the premises with others, it is plainly not as strong an inference
        in that circumstance. Therefore, there must be something more in the
        totality of the circumstances—a word or deed, a relationship or other
        probative factor—that, considered in conjunction with the evidence of
        proximity and knowledge, proves beyond a reasonable doubt that the
        defendant intended to exercise dominion or control over the
        contraband, and was not a mere bystander. Ultimately, whether
        constructive possession has been proved beyond a reasonable doubt in
        any given case depends on a fact-specific inquiry into all the
        circumstances.




Smith, 55 A.3d at 887 (brackets, citations, and internal quotation marks omitted);

see also, e.g., Ramirez v. United States, 49 A.3d 1246, 1249 (D.C. 2012) (Although

constructive possession requires more than mere presence of accused or proximity
                                           30

to contraband, “[i]n general, . . . a jury is entitled to infer that a person exercises

constructive possession over items found in his home. Evidence suggesting that a

defendant has regular access to the premises, such as possession of a key, may also

be sufficient to establish constructive possession. The inference that a person who

occupies an apartment has dominion and control over its contents applies even

when that person shares the premises with others, although it is plainly not as

strong an inference in that circumstance.”) (citations and internal quotation marks

omitted); Moore v. United States, 927 A.2d at 1050 (“[a] wide variety of additional

probative evidence may suffice” to establish constructive possession; “Evidence

showing the accused’s control or occupancy of the premises in which the

contraband is found may also serve to prove constructive possession.”); Wells v.

United States, 515 A.2d 1108, 1113 (D.C. 1986) (“Sufficient evidence [to establish

constructive possession] has included evidence that the illegal substances were in

plain view; or that the accused lived in the room or home where the contraband

was found . . . .”) (footnotes omitted).




      Under this approach, the additional evidence -- beyond the mere fact that

Mr. Evans lived in an apartment containing contraband -- would include that there

were several items of contraband, the items were in two different rooms, and two
                                       31

of the items were in plain view. Moreover, given the absence of any evidence that

a man other than Mr. Evans occupied or had even visited the apartment, a

reasonable factfinder could conclude beyond a reasonable doubt that Mr. Evans

lived in the bedroom from which the police recovered one gun and the round of

ammunition, and that the men’s clothing in the closet in that bedroom belonged to

Mr. Evans. Cf. Reid v. United States, 466 A.2d 433, 435 (D.C. 1983) (jury’s

finding of constructive possession supported not only by admission but also “by

the fact that the gun was found in a box of men’s clothing in the apartment in

which [defendant] was the sole male occupant”). This case thus is comparable to

cases in which we have found sufficient evidence of constructive possession where

contraband was found in close proximity to other personal items linked to an

occupant.   See Smith, 55 A.3d at 887-90 (sufficient evidence that defendant

constructively possessed contraband inside child’s backpack in master bedroom of

apartment defendant occupied; although others also occupied apartment and

contraband was not in plain view, backpack was conspicuous and located near

items belonging to defendant, and evidence indicated that defendant had been

alone in master bedroom for week before police search discovered contraband in

backpack); Stewart, 395 A.2d at 6 (sufficient evidence that defendant Stewart

constructively possessed marijuana in apartment where defendant Stewart lived;

although another defendant also lived in apartment and defendant Stewart was not
                                        32

present at time of search, apartment contained substantial quantity of marijuana,

readily observable throughout apartment, and some of marijuana was on dresser in

bedroom near items bearing defendant Stewart’s name); Hooker v. United States,

372 A.2d 996, 996-97 (D.C. 1977) (sufficient evidence that defendant

constructively possessed contraband found in bedroom occupied by defendant in

home defendant shared with mother; although contraband was not in plain view

and others “might have had occasional access to the room,” bedroom contained

defendant’s personal belongings; some contraband was in nightstand; and some

contraband was in dresser drawer that contained papers bearing defendant’s name

and what could be inferred to be defendant’s underwear); see generally Schools, 84

A.3d at 510 (“We have often found that evidence was sufficient to establish a

defendant’s constructive possession of contraband where the contraband was

recovered in proximity to the defendant’s personal items such as mail or personal

papers, photographs, and identification cards.     Here, however, there was no

evidence that any . . . personal effects linked to appellant were found in the back

bedroom where the gun and ammunition were found.”).




   The analysis with respect to the second gun is quite similar to the analysis with

respect to the first, given that (1) there is no evidence that anyone other than Mr.
                                        33

Evans had control over the apartment; (2) there is no evidence that any other male

lived in the apartment or had even visited the apartment; (3) there was male

clothing in both bedrooms and no evidence of female clothing in either bedroom;

and (4) although it is unclear whether the closet door in the second bedroom was

open at the time the police entered, neither gun was covered from view. We also

note that the inference of constructive possession as to each gun is to a degree

supported by the presence of the other. Cf., e.g., United States v. Dykes, 365 U.S.

App. D.C. 381, 385 n.5, 406 F.3d 717, 721 n.5 (2005) (“where a defendant is

charged with unlawful [constructive] possession of something, evidence that he

possessed the same or similar things at some other time is quite relevant to his

knowledge and intent with regard to the crime charged”); United States v. Taylor,

728 F.2d 864, 865-66, 870 n.7 (7th Cir. 1984) (inference that defendant

constructively possessed machine gun and silencer under couch supported by

presence of other contraband elsewhere in apartment, including other firearms); cf.

also Calloway v. District of Columbia Hous. Auth., 916 A.2d 888, 890 (D.C. 2006)

(in concluding that constructive possession was proven by preponderance of

evidence, court notes that contraband was found “at three separate locations in the

property leased to [appellant]”).
                                        34

      On the other hand, language from some of our cases makes it far less clear

whether there was sufficient evidence in this case of Mr. Evans’s intent to exercise

dominion and control over the guns and the round of ammunition. For example,

we have said that, “[i]n cases where the accused is a resident of premises to which

others have access, courts will not normally impute possession of an illegal item

without proof that the accused is actually involved in some criminal enterprise of

which the contraband is a part.” Curry v. United States, 520 A.2d 255, 264 (D.C.

1987). See also, e.g., Wheeler v. United States, 484 A.2d 170, 173 (D.C. 1985)

(“Even where the government proves that the defendant is a resident of the place

where illegal items are seized, the courts are wary of imputing possession to the

defendant absent proof of his involvement in some criminal enterprise.”). We have

also said that the inference that “a person exercises constructive possession over

items found in his own home . . . may be unwarranted where the defendant shares

the premises with other people.” Schools, 84 A.3d at 509. See also, e.g., In re

R.G., 917 A.2d 643, 649 (D.C. 2013) (“[W]hen two or more people are occupying

a place, a defendant’s control over the place is not by itself enough to establish

constructive possession of contraband found there.”).
                                        35

      More concretely, we have in several cases found the evidence of

constructive possession insufficient even though the contraband at issue was found

in premises occupied by the defendant. See, e.g., Schools, 84 A.3d at 509-12

(although evidence supported finding that defendant actually possessed distribution

quantity of drugs found in bedroom of apartment, insufficient evidence that

defendant constructively possessed firearm and ammunition hidden in dresser

drawer in same room, even though defendant had apparently been sleeping in room

at time police entered; others resided in apartment, there was evidence that

defendant did not usually occupy room, other personal items in room were not

linked to defendant, and expert testimony that guns and drugs are “sometimes”

linked added little); In re R.G., 917 A.2d at 649-51 (insufficient evidence that

juvenile respondent constructively possessed loaded pistol found behind plastic

sheet on windowsill in bedroom respondent shared with adult boyfriend;

respondent and boyfriend were in bed at time police entered, there was evidence

that other occupants frequented bedroom, respondent denied knowledge or

possession of pistol and testified without contradiction that boyfriend had “come in

from the street at 3 a.m.,” pistol was not “mixed in with [respondent’s]

belongings,” and there was no other ammunition in room); In re T.M., 577 A.2d

1149, 1151-54 (D.C. 1990) (insufficient evidence that juvenile respondents

constructively possessed pistol and ammunition found in plain view in bedroom in
                                       36

apartment; bedroom was occupied by six people at time police entered; apartment

was leased by Mr. Jones; although there was evidence that respondents had been

staying in apartment for three days and paying rent to Mr. Jones, there was no

evidence that they had clothes or personal belongings there; although Mr. Jones

had seen similar gun three days earlier, on sofa where one respondent was

sleeping, no evidence directly tied respondents to that gun; no evidence tied

respondents to drug evidence also recovered from apartment; evidence that

occupants all tried to hide when police entered apartment using battering ram was

not “sufficient to put the prosecution over the top”); Curry, 520 A.2d at 264-65

(insufficient evidence that defendant Curry constructively possessed loaded

handgun hidden among women’s clothing in drawer of bedroom nightstand;

personal papers in defendant Curry’s name were on dresser in same bedroom;

defendant Curry shared apartment with others and there was evidence that she

stayed there intermittently; defendants Jones and Washington were convicted of

conducting drug-selling operation from apartment; defendant Curry was not

present at time of search and was not shown to have been present in preceding five

hours; and five others were present at time of search and could have hidden gun

among defendant Curry’s belongings); id. at 265-66 (same as to defendants Jones

and Washington; although they had access to apartment, they did not sleep there;

handgun was in bedroom hidden among women’s clothing; others had access to
                                        37

apartment and were present at time of search; and although there was evidence that

defendant Jones and Washington were selling drugs from apartment, no evidence

tied handgun to drug-selling); Thompson v. United States, 293 A.2d 275, 176-77

(D.C. 1972) (per curiam) (insufficient evidence that defendant constructively

possessed marijuana in envelope on table in living room of apartment; unclear

whether defendant resided in apartment or whether her grandmother and brother

instead did; some of defendant’s clothing was hanging in bedroom closet; and at

time of police entry apartment was occupied by five or six people, with defendant

apparently alone in bedroom and others in living room).




      The law of constructive possession has been described as a “thicket” and a

“chaotic patchwork.” Thompson v. United States, 546 A.2d 414, 416 (D.C. 1988)

(internal quotation marks omitted). Fortunately, we need not traverse the entire

thicket to resolve this case. We do venture three general observations, though.

First, as we have repeatedly emphasized, “whether constructive possession has

been proved beyond a reasonable doubt in any given case depends on a fact-

specific inquiry into all of the circumstances.” Smith, 55 A.3d at 887. It therefore

can be very difficult to formulate bright-line rules concerning constructive

possession that are applicable in all circumstances. Cf., e.g., Commonwealth v.
                                          38

Carroll, 507 A.2d 819, 821 (Pa. 1986) (“Constructive possession by its nature is

not amenable to ‘bright line’ tests.”).




      Second, as we have also repeatedly emphasized, broad language in our

opinions “must be understood in context.” BDO Seidman, LLP v. Morgan, Lewis

& Bockius LLP, 89 A.3d 492, 499 n.6 (D.C. 2014). See also, e.g., Armour & Co.

v. Wantock, 323 U.S. 126, 132-33 (1944) (“It is timely again to remind counsel that

words of our opinions are to be read in the light of the facts of the case under

discussion. To keep opinions within reasonable bounds precludes writing into

them every limitation or variation which might be suggested by the circumstances

of cases not before the Court.”). It therefore can be perilous to treat statements

made in deciding a particular sufficiency issue in a particular case as laying down

sweeping rules applicable in all circumstances. For example, although there is

language in Wells suggesting that constructive possession is sufficiently

established as long as there is proof that contraband was in plain view or that the

defendant lived in the room or home where the contraband is found, 515 A.2d at

1113, such a bright-line rule would be contrary to the holdings of cases such as

Schools, In re R.G., In re T.M., Curry, and Thompson. Conversely, although there

is language in cases such as In re R.G. suggesting that constructive possession
                                         39

cannot be established in the absence of “some action, some word, or some conduct

that links the individual” to the contraband at issue, 917 A.2d at 649, the holdings

of cases such as Smith, Stewart, and Hooker establish otherwise. See also, e.g.,

Schools, 84 A.3d at 510 (constructive possession can be adequately established by

proof that contraband was found near defendant’s personal items); Smith, 55 A.3d

at 887 (constructive possession can be established by “a word or a deed, a

relationship or other probative factor”) (emphasis added).




      Third, there can be an important distinction between concluding that given

evidence would reasonably permit a jury to infer constructive possession and

concluding that the same evidence is by itself sufficient to establish constructive

possession beyond a reasonable doubt. We made that point at some length in

Rivas, 783 A.2d at 131-33. Cf. also County Court v. Allen, 442 U.S. 140, 166-67

(1979) (explaining distinction between permitting jury to infer conclusion from

predicate facts and permitting jury to rely on predicate facts as “sole and sufficient

basis for a finding of guilt”). We therefore must be cautious in treating statements

about whether it would be reasonable to infer constructive possession as

necessarily equivalent to holdings about what evidence is by itself sufficient to

establish constructive possession beyond a reasonable doubt.
                                         40




      Turning back to the particular circumstances of this case, we conclude that a

reasonable fact-finder could find beyond a reasonable doubt that Mr. Evans

intended to exercise dominion and control over the guns and ammunition. As we

have already explained, a fact-finder in our view could reasonably conclude

beyond a reasonable doubt both that Mr. Evans lived in the bedroom where one

gun and a round of ammunition were found in plain view and that the clothes in the

closet in that bedroom belonged to Mr. Evans. That being so, this case seems

comparable to cases such as Smith, Stewart, and Hooker, in which we upheld

findings of constructive possession based on the presence of contraband in plain

view in a residence occupied by a defendant, where the contraband was proximate

to personal items linked to the defendant. It is true that in Smith, Stewart, and

Hooker the personal items at issue bore the defendant’s name, but we do not view

that difference as critical given the strength of the inference in this case that the

clothes in the bedroom closet were Mr. Evans’s.




      One could reasonably debate whether, when the circumstances of each case

are considered as a whole, the evidence of constructive possession in this case,

Smith, Stewart, and Hooker is stronger or weaker than the evidence of constructive
                                        41

possession in Schools, In re R.G., In re T.M., Curry, and Thompson. But none of

the latter group of cases involved contraband in plain view in the defendant’s

bedroom, next to items linked to the defendant. Moreover, several of those cases

involved circumstances, not present in this case, that significantly weakened any

inference of constructive possession. In Schools, the firearm and ammunition were

hidden and there was evidence that the defendant did not usually occupy the

bedroom at issue. 84 A.3d at 509-12. In In re R.G., the firearm was not in plain

view and was not mixed in with the juvenile respondent’s belongings, there was a

single firearm, and another was person equally close to the firearm at time of the

police search. 917 A.2d at 649-51. In In re T.M., there were six people present in

the bedroom at issue, and there was no evidence that the juvenile respondents kept

personal belongings in the apartment. 577 A.2d at 1151-54. As to defendant

Curry in the Curry case, the pistol was not in plain view, there was no evidence

that Ms. Curry had been in the apartment in the five hours preceding the police

search, other occupants of the apartment were present at the time of the search and

could have hidden the pistol, and those other occupants were convicted of selling

drugs from the apartment. 520 A.2d at 264-65. As to the male defendants in

Curry, they did not sleep in the apartment, the handgun was in a bedroom hidden

among women’s clothing, and others had access to the apartment and were present

at the time of the search. Id. at 265-66. Finally, in Thompson, it was unclear
                                           42

whether the defendant resided in the home, the contraband was inside an envelope

in the living room, the defendant was in a bedroom at the time of the police search,

and four or five other people were in the living room. 293 A.2d at 176-77.




      In sum, we find ourselves unable to say that the trial court in this case acted

irrationally by finding beyond a reasonable doubt that Mr. Evans constructively

possessed the guns and the round of ammunition recovered from his apartment.

Under the applicable standard of review, we therefore conclude that the evidence

was sufficient to support the trial court’s verdict.




                                          IV.




      For the foregoing reasons, we reverse Mr. Evans’s convictions and remand

for further proceedings.




                                                       So ordered.
                                          43

        FERREN, Senior Judge, concurring: I join the court’s resolution of the Fourth

Amendment issue, but write to explain why I believe that the road to finding

sufficiency of the evidence, based on constructive possession, is reasonably

straight.




        We have said that a fact-finder “is generally entitled to infer that a person

exercises constructive possession over items found in his home,” or, more

generally, found in premises he controls or occupies.1 On the facts here, therefore,

the only circumstance that would dilute that inference, as applied to appellant

Evans, would be a finding that he “share[d] the premises with others,” 2 suggesting

that there was a reasonable possibility that someone other than Evans possessed the

shotgun, rifle, and ammunition.




        1
        Smith v. United States, 55 A.3d 884, 887 (D.C. 2012) (citation and internal
quotation marks omitted) (ante at 29); see Ramirez v. United States, 49 A.3d 1246,
1249 (D.C. 2012) (ante at 29-30); Moore v. United States, 927 A.2d 1040, 1050
(D.C. 2007) (ante at 30).
        2
            Smith, 55 A.3d at 887; see Ramirez, 49 A.3d at 1249; Moore, 927 A.2d at
1050.
                                        44

      The evidence shows that Evans arguably shared his apartment on occasion

with three women: Taylor, Brunson, and Murray. I believe, however, that a

reasonable fact-finder could have found—as the trial judge did here—that this

evidence was too weak to deflate the inference (sufficient for conviction) that the

constructive possessor was Evans, no one else.




      First, although the evidence was sufficient for a finding that Taylor had been

staying for an undeterminable time with Evans at his apartment, the evidence of

Taylor as alternative possessor is substantially weakened by the “plain view” and

“linkage” evidence attributable to Evans in the first bedroom where the shotgun

and ammunition were found, 3 and by the evidence that the jacket found in the

second bedroom, where the rifle was found, belonged to a large man, not a

woman. 4




       Second, aside from a pill bottle (Murray) and a summons (Brunson)—

neither of which showed a date in the trial record—there was no evidence that

      3
          Ante at 25-26.
      4
          Ante at 4.
                                          45

either woman “shared” the premises enough to undermine the inference that Evans

constructively possessed the contraband in both bedrooms by virtue of his

occupancy and control of the apartment.




      As Judge McLeese makes clear, we are not resolving whether, as a matter of

law, the evidence “is by itself sufficient to establish constructive possession

beyond a reasonable doubt”; rather we are deciding whether the evidence “would

reasonably permit a jury [or, as here, the court as fact-finder] to infer constructive

possession.”5 I conclude that it would. The fact that the rifle in the second

bedroom, unlike the shotgun and ammunition in the first bedroom, was not in

“plain view,” or “next to items linked to” Evans, 6 is of no consequence to the

outcome; the absence of those factors does not, in my view, remove the rifle from

Evans’s constructive possession, for three reasons. First, a man’s, not a woman’s,

jacket was retrieved from the bedroom where the rifle was found. It may or may

not have belonged to Evans, but, as noted earlier, it presumably would not have

belonged to Taylor, let alone Murray or Brunson, the only other possessory

candidates. Second, the method of storing the rifle in the second bedroom (inside
      5
          Ante at 39.
      6
          Ante at 41.
                                         46

the closet door and leaning against either the wall or the door) was identical to that

used for storing the shotgun in the first (Evans’s) bedroom 7—a method suggesting,

especially in the same apartment, that if the shotgun belonged to Evans the rifle did

as well.8 Third, the cases on which our dissenting colleague relies all reveal

situations in which the premises were unquestionably shared among the defendant

and other suspects with virtually equal access to the contraband, far from the

situation here.9




      7
         Cf. United States v. Dykes, 406 F.3d 717, 722 n.5 (D.C. Cir. 2005) (noting
that possession of “same or similar things” at another time relevant to “knowledge
and intent” regarding crime charged); ante at 33.
      8
          Ante at 32-33.
      9
         Post at 50; see Schools v. United States, 84 A.3d 503, 510 (D.C. 2013)
(reversing conviction based on constructive possession of unregistered firearm and
ammunition because, in addition to appellant, “several others” lived in or had
access to the premises); In re R.G., 917 A.2d 643, 648-49 (D.C. 2007) (reversing
conviction based on constructive possession because appellant’s boyfriend was in
bed with appellant, and government offered no evidence that boyfriend did not
possess unregistered pistol and ammunition); In re T.M., 577 A.2d 1149, 1152
(D.C. 1990) (reversing convictions of both appellants based on constructive
possession where several others were in close proximity to unregistered firearm
and ammunition), abrogated by Rivas v. United States, 783 A.2d 125 (D.C. 2001)
(en banc) (eliminating separate rule for constructive possession in vehicles); Curry
v. United States, 520 A.2d 255, 266 (D.C. 1987) (reversing convictions of all
defendants who lived or stayed in apartment or visited there because government
did not establish that each had constructive possession of weapon); Thompson v.
United States, 293 A.2d 275, 276 (D.C. 1972) (per curiam) (reversing conviction
for possession of marijuana for failure to prove actual or constructive possession in
                                                                       (continued…)
                                        47




      Accordingly, I join Judge McLeese’s opinion for the court.




      BECKWITH, Associate Judge, concurring in part and dissenting in part: I join

the court’s resolution of Jamel Evans’s Fourth Amendment claim, and I also agree

with my colleagues that the record contains sufficient evidence to support Mr.

Evans’s conviction for possession of the firearm and ammunition found in the first

bedroom. I disagree, however, that the evidence is sufficient to prove that Mr.

Evans constructively possessed the gun found in the closet of the second bedroom.



      After a comprehensive survey of our case law and a useful breakdown of its

competing strands, the court turns to the circumstances of this case and concludes,

in light of this case law, “that a reasonable fact-finder could find beyond a

reasonable doubt that Mr. Evans intended to exercise dominion and control over

the guns and ammunition” based on the evidence that Mr. Evans lived in the first

bedroom where the ammunition and one of the guns were found, that clothes in the

closet in that bedroom belonged to him, and that that gun and ammunition were


(…continued)
room where “four or five other persons were gathered” and “could have brought it
there”).
                                          48

found in plain view. Ante at 40. These facts, the majority opinion notes, make this

case comparable to the decisions “in which we upheld findings of constructive

possession based on the presence of contraband in plain view in a residence

occupied by a defendant, where the contraband was proximate to personal items

linked to the defendant.” Ante at 40.



      Though the court concludes its discussion of our case law by finding

sufficient evidence that Mr. Evans constructively possessed the plural “guns,” ante

at 40, and asserts that “[t]he analysis with respect to the second gun is quite similar

to the analysis with respect to the first,” ante at 32, none of the three principal

factors the court relies on in deeming the evidence sufficient with respect to the

gun in the first bedroom applies to the gun found in a closet in the second

bedroom. This gun was not in plain view. 1 It was not proximate to personal items

linked to Mr. Evans.     And the evidence in the record indicates that the first



      1
          The majority says it is unclear whether the door to the closet in which the
gun was found was open or closed when police entered the apartment, ante at 4,
33, but given that the rifle was positioned right by the closet door and that Officer
Wendt saw no contraband in plain view when he entered and looked around the
second bedroom during his initial room-by-room search of the apartment, ante at 3,
it is apparent that the gun was not in plain view. The majority’s description of the
rifle’s location as “apparently unhidden,” ante at 25, even if supported by the
record, is not very probative if the officer never saw it during his search of the
house.
                                        49

bedroom, not the room where this gun was found, was Mr. Evans’s room. 2



      The majority opinion instead relies heavily on an assertion that “the

inference of constructive possession as to each gun is to a degree supported by the

presence of the other.” Ante at 33. In support of this conclusion, the court cites a

nonbinding decision concluding that a defendant’s possession of “the same or

similar things at some other time is quite relevant to his knowledge and intent with

regard to the crime charged.” Id. (quoting United States v. Dykes, 406 F.3d 717,

722 n.5 (D.C. Cir. 2005)). In Dykes, the court held that the fact that Dykes had

been arrested nearby a week before in possession of marijuana was “further

evidence” that he possessed marijuana that was found in a bedroom. Id. at 722.



      As the court reminds us later in the opinion, there is an “important

distinction” between “concluding that given evidence would reasonably permit a

jury to infer constructive possession and concluding that the same evidence is by


      2
         While both the court’s opinion and Judge Ferren’s opinion emphasize the
lack of record evidence that others had “control over” the apartment, ante at 31-33,
id. at 44-45 (Ferren, J., concurring), it is worth noting here that the government’s
evidence that Mr. Evans was the primary occupant of the apartment—an officer’s
statement that Mr. Evans was trying to expel Ms. Taylor from “his” apartment—
was less than robust, and that it was not Mr. Evans’s burden to disprove possession
by presenting evidence about the extent to which Ms. Taylor or others had resided
in the apartment.
                                         50

itself sufficient to establish constructive possession beyond a reasonable doubt.”

Ante at 39 (citing Rivas v. United States, 783 A.2d 125, 131-33 (D.C. 2001) (en

banc)). Under the facts of this case, whatever the relevance of the gun in the closet

of the first bedroom, it does not establish Mr. Evans’s constructive possession of

the second gun beyond a reasonable doubt.



      In nearly every respect, the circumstances pertaining to the second gun align

more with the cases the court cites that reverse on sufficiency grounds—namely

Schools v. United States, 84 A.3d 503 (D.C. 2013), In re R.G., 917 A.2d 643 (D.C.

2007), In re T.M., 577 A.2d 1149 (D.C. 1990), Curry v. United States, 520 A.2d

255 (D.C. 1987), and Thompson v. United States, 293 A.2d 275 (D.C. 1972) (per

curiam).   The court distinguishes these cases because “none . . . involved

contraband in plain view in the defendant’s bedroom, next to items linked to the

defendant.” Ante at 41. But that characterization only describes the gun in the first

bedroom. The gun in bedroom two was not in Mr. Evans’s bedroom, it was not in

plain view, and it was not “recovered in proximity to the defendant’s personal

items,” Schools, 84 A.3d at 510.



      Other circumstances further weaken any inference that Mr. Evans intended

to exercise dominion and control over the rifle in the closet of that room. While
                                         51

there was evidence that the apartment was Mr. Evans’s apartment, the record

contains signs that other people were connected to the two-bedroom apartment and

that Mr. Evans may not have been its sole occupant. An officer testified that the

second bedroom looked “[l]ived in” like the first bedroom. Police found a judicial

summons in the apartment addressed to a woman at that address, as well as a

prescription in another woman’s name—facts, the trial court noted, that “certainly

support[] a possible inference that someone else either resided there or had been

there perhaps and that’s why those items were there.”          The trial judge also

acquitted Mr. Evans of possessing other items in the second bedroom because he

was not convinced beyond a reasonable doubt that the jacket in which the

marijuana was found or the box in which the ammunition was found were Mr.

Evans’s. 3 And Shantay Taylor—the woman with whom Mr. Evans was arguing

when police responded to a report of domestic violence and whom the prosecutor

described as Mr. Evans’s girlfriend—had been in the apartment, and Mr. Evans’s

statement that he was trying to get her out of the apartment supports an inference

      3
          Defense counsel argued in closing that the trial judge “had the ability for
the last two days to observe the defendant sitting to my left. He clearly does not
wear an extra-large jacket. . . . So then the question then becomes based on the
Government’s evidence, whose jacket is this? We don’t know who’s [sic] jacket it
is.” Although Judge Ferren describes Ms. Taylor, Ms. Brunson, and Ms. Murray
as the “only other possessory candidates,” his acknowledgement that the jacket
may not have belonged to Mr. Evans suggests at least one other possessory
candidate, particularly given Judge Ferren’s view that it is unlikely the large men’s
jacket was Ms. Taylor’s. Ante at 44-46.
                                           52

that she had been staying there.4



      These circumstances are not sufficient under our case law to establish

beyond a reasonable doubt that Mr. Evans constructively possessed the gun in the

second bedroom. So the court relies upon Mr. Evans’s constructive possession of

the gun in the first bedroom to sustain a conclusion beyond a reasonable doubt that

he intended to exercise dominion and control over the second gun. Yet absent

some telling link between the rifle in the second bedroom and the gun or

ammunition in the first bedroom—such as a match between the ammunition and

the rifle, which the evidence does not show—this court’s conclusion that a

factfinder could reasonably find Mr. Evans guilty of possessing the gun in the first

bedroom is not sufficient to surmount all the circumstances that cut the other way

as to the second gun. 5




      4
         The prosecutor drew the same inference, stating, in response to defense
counsel’s motion for judgment of acquittal, that “Your Honor can conclude that the
apartment does, in fact, belong to the defendant, that Ms. Taylor had been staying
at that apartment with him, [and] that he had kicked her out of the apartment,
which was the source of the argument[.]”
      5
         The trial court itself found its verdict on this count to be “a closer call,” in
part because the government’s photograph of the closet in the second bedroom did
not depict the items in that closet as clearly as its photograph of the closet in the
first bedroom.
                                        53

        Under our case law, the determination in this case that Mr. Evans

constructively possessed the gun in the second bedroom, while “plausible, . . .

cannot bear the weight of proof beyond a reasonable doubt.” James v. United

States, 39 A.3d 1262, 1270 (D.C. 2012) (quoting Commonwealth v. Rodriguez, 925

N.E.2d 21, 26 (Mass. 2010)). I respectfully dissent from that portion of the court’s

opinion.
