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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 18-CO-894

                          JAMES CAMPBELL, APPELLANT,

                                          V.

                            UNITED STATES, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (CF2-10147-14)

                         (Hon. Milton Lee, Motion Judge)
(Submitted October 10, 2019                             Decided January 30, 2020)
      Vincent A. Jankoski was on the brief for appellant.

      Jessie K. Liu, United States Attorney, and Elizabeth Trosman, Elizabeth H.
Danello, Bernard Delia, and Kristina Ament, Assistant United States Attorneys,
were on the brief for appellee.

     Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge, and
NEBEKER, Senior Judge.


      THOMPSON, Associate Judge:         Appellant James Campbell argues that the

Superior Court erred in denying his D.C. Code § 23-110 (2012 Repl.) motion. We

affirm the ruling of the motion judge.
                                         2

                                         I.



      The factual background of this case is set out more fully in this court’s

opinion in Campbell v. United States, 163 A.3d 790 (D.C. 2017) (“Campbell I”).

The following is a brief summary of the facts pertinent to the instant appeal. At

approximately 3:00 a.m. on June 9, 2014, Metropolitan Police Department

(“MPD”) Officer George Poor was on routine patrol in the area of Third and I

Streets, N.W., Washington, D.C., when he observed an Infiniti sedan parked on a

grassy median between two parking lots in the vicinity of Mount Carmel Baptist

Church. Because the area was known for prostitution, the car was parked in an

unusual manner, and the rear passenger window of the car was missing and had

been replaced with a towel, Officer Poor decided to drive into the parking lot, turn

on his emergency lights, and approach the Infiniti on foot with a flashlight. The

car was not running and no lights were on in the vehicle. As Officer Poor shined

his flashlight into the car, he observed an individual, later identified as Mr.

Campbell, slumped in the driver’s seat of the car. The officer testified that the

individual’s lack of reaction to the emergency lights and to the officer’s approach

made him “somewhat concerned for the well-being of the person inside the car[.]”

At this point, Officer Poor knocked on the driver’s window to get Mr. Campbell’s

attention. As Officer Poor was looking into the vehicle, he observed a bottle of
                                         3

Absolut vodka “a third to maybe halfway empty” in the front center console, in the

proximity of Mr. Campbell’s right arm. When asked by Officer Poor whether he

had been drinking, Mr. Campbell admitted to taking “a couple of sips” of the

vodka. Officer Poor arrested Mr. Campbell for possession of an open container of

alcohol (“POCA”). In the search incident to that arrest, he recovered the key to the

car in appellant’s pocket, two stolen watches, and a screwdriver, as well as

paperwork indicating that Mr. Campbell was not the owner of the Infiniti. A

further search at the police station revealed four shards of glass in Mr. Campbell’s

pocket, which appeared to be consistent with the shards found on and near the

shattered window of the Infiniti.



      On October 3, 2014, Mr. Campbell, through his counsel, filed a motion to

“suppress any tangible evidence obtained as a result of [his] illegal stop” and

subsequent arrest, arguing that Officer Poor had no reason to stop Mr. Campbell

because his vehicle was parked in a private parking lot, the officer had no basis to

believe the vehicle was parked illegally, there was no basis for an investigative

detention, the officer did not believe that the car was stolen or that the driver was

in distress, there had been no calls raising concern regarding the vehicle or its

occupant, and none of appellant’s actions warranted the belief that criminal activity

was afoot.    At an October 30, 2014, pre-trial status hearing, trial counsel
                                           4

characterized the motion to suppress as “a very basic motion. It’s just based soley

[sic] on the stop.” Counsel also agreed with the trial court that the basis of the

motion was “the legitimacy of the stop.” Because of the unexceptional nature of

the arguments raised in the motion to suppress, trial counsel estimated that a

motions hearing would be brief, and consented to have the motion resolved on the

basis of the testimony at trial instead.



      On November 4, 2014, the trial court denied Mr. Campbell’s suppression

motion, addressing it after resolving appellant’s motion for judgment of acquittal.

As to the latter motion, the trial court reasoned, without objection from appellant’s

trial counsel, that the evidence sufficed for conviction on the POCA count because

the bottle of liquor was unsealed and was in physical proximity to appellant. In

addressing the motion to suppress, the trial court reasoned that the officer’s

observation that the vehicle had a broken window and was parked on grass instead

of in one of the many available parking spaces, his further observation that there

was “somebody possibly asleep [or unconscious] in the driver’s seat,” and his

knowledge that the area was known for prostitution gave the officer “at least

reasonable articulable suspicion” to investigate further. Appellant’s trial counsel

responded that the vehicle’s location on private property meant that anything

strange about where the vehicle was parked did not give the officer “a right to
                                         5

approach.” When the court then remarked that the officer’s (flashlight-assisted)

observation of a half-empty bottle of vodka in the vehicle provided probable cause,

appellant did not object that an open container on private property did not provide

probable cause to believe that appellant had committed a POCA violation, but said

only that he would “submit on the evidence at this point[.]”



      On November 5, 2014, the jury found appellant guilty of first-degree theft

(vehicle), receiving stolen property (“RSP”) (vehicle), unauthorized use of a

vehicle (“UUV”), and POCA. In his direct appeal, appellant argued that his arrest

for POCA, i.e., for possession of an open container in a vehicle “in or upon any

street, alley, park, or parking area,” D.C. Code § 25-1001(a)(2) (2012 Repl.), was

unlawful because the statute did not reach his conduct:        possessing an open

container of alcohol on a grassy strip in a parking lot on private property.

Appellant also argued that because his arrest for POCA was unlawful, the trial

court erred in denying his motion to suppress the various fruits of the search

incident to arrest.   On July 20, 2017, this court reversed appellant’s POCA

conviction, reasoning that the grassy median on private property on which he was

parked did not constitute a “parking area” within the meaning of § 25-1001(a)(2),

and that appellant’s conduct was outside the ambit of the POCA statute. Campbell

I, 163 A.3d at 795–98. However, we affirmed appellant’s convictions for first-
                                          6

degree theft and UUV, rejecting appellant’s argument that the trial court erred in

not suppressing the evidence of those crimes as the fruits of appellant’s unlawful

arrest for POCA. See id. at 798, 798 n.13.1 We did so on the ground that appellant

had waived that basis for suppression because his suppression motion and related

oral argument before the trial court “did not put the trial court on notice, even in

vague terms, of the question of statutory construction now before this court.” Id. at

798 n.13.



      On August 1, 2017, Mr. Campbell filed a § 23-110 motion under the theory

that his trial counsel provided ineffective assistance of counsel in that he failed to

argue that the POCA statute did not reach possession of an open container in the

area where he was parked. The trial court denied appellant’s motion without a

hearing, finding that trial counsel “did raise the contention that the car was parked

on private property” and “did raise the claim alleged to have been omitted.” The

court therefore ruled that appellant failed to make the required showing that his

trial counsel’s performance was deficient.




      1
           “As both parties agree[d] that Mr. Campbell’s conviction for receiving
stolen property should not stand in light of his simultaneous conviction for first-
degree theft, we also remand[ed] to allow the [trial] court to vacate the conviction
for receiving stolen property.” Id. at 798.
                                         7

      This appeal followed. Appellant argues that the trial court’s rationale for

denying his § 23-110 motion — i.e., that trial counsel did argue that appellant’s

possession of an open container of alcohol while parked on private property did not

constitute a POCA violation — was erroneous and in conflict with this court’s

decision and mandate in Campbell I.



                                             II.



      The following principles guide our analysis.       In order to demonstrate

ineffective assistance of counsel, a defendant must show both that his counsel’s

performance was deficient, and that this deficiency prejudiced the defense.

Strickland v. Washington, 466 U.S. 668 (1984).         To establish deficiency, a

defendant must show that trial counsel “made errors so serious that counsel was

not functioning as the counsel guaranteed the defendant by the Sixth Amendment.”

Dickerson v. District of Columbia, 182 A.3d 721, 730 (D.C. 2018) (internal

quotations omitted). To show prejudice, a defendant must show that there is a

“reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694. We need

not address both prongs of the test if appellant does not meet the burden of one or

the other showing. Id. at 697.
                                          8



      “Where defense counsel’s failure to litigate a Fourth Amendment claim

competently is the principal allegation of ineffectiveness, the defendant must also

prove that his Fourth Amendment claim is meritorious and that there is a

reasonable probability that the verdict would have been different absent the

excludable evidence in order to demonstrate actual prejudice.” Porter v. United

States, 37 A.3d 251, 256 (D.C. 2012). More specifically, and as is pertinent here, a

contention of prejudice arising from a failure to effectively litigate a motion

requires a multi-step analysis. Turner v. United States, 116 A.3d 894, 934–35

(D.C. 2015). The defendant must first demonstrate a “reasonable probability that a

competent attorney” would have filed the motion the question. Id. He must then

demonstrate a reasonable probability that the motion, if properly litigated, would

have been granted, and that if the motion had been granted, it is reasonably

probable that the trial would have ended in an acquittal. Id.



      An appellate court may affirm a judgment on any valid ground, including

reasons other than those given by the trial court, so long as the appellant has had “a

reasonable opportunity to be heard with respect to the reasoning on which the

proposed affirmance is to be based[.]” Randolph v. United States, 882 A.2d 210,

218 (D.C. 2005); see also Wilson-Bey v. United States, 903 A.2d 818, 844 n.45
                                         9

(D.C. 2006) (using discretion to entertain the government’s harmless error claim

even where it had waived the argument by failing to raise the argument to the

division, because it had made the argument in its brief to the en banc court, and

both appellants were given the opportunity to respond).



      “We review the trial court’s denial of appellant’s D.C. Code § 23-110

motion without a hearing for an abuse of discretion.” Copeland v. United States,

111 A.3d 627, 630 (D.C. 2015) (internal quotations omitted).



                                      III.



      The government agrees with appellant (as do we) that the trial court’s

rationale in denying the § 23-110 motion was “incorrect,”2 but urges us to sustain


      2
          As described above, appellant’s trial counsel argued that the vehicle’s
location on private property meant that the officer had no right to approach the
vehicle, however strange it might have looked. Counsel did not argue that an open
container in a vehicle parked on private property failed to establish probable cause
to believe that appellant, the individual at the steering wheel, had committed a
POCA violation. Even if the record were ambiguous on these points, our
determination in Campbell I that appellant’s trial counsel waived the statutory
“parking area” argument for suppression is the law of the case and barred the trial
court from reconsidering the issue of whether counsel waived the argument. See In
re Baby Boy C., 630 A.2d 670, 678 (D.C. 1993) (“It is well established that once
the court has decided a point in a case, that point becomes and remains settled
unless or until it is reversed or modified by a higher court[]”; noting that “[t]his
                                                                      (continued…)
                                         10

the trial court’s ruling on the alternative ground that even if the statutory argument

for suppression been raised at trial, it “would not have been meritorious,” meaning

that counsel’s failure to advance the argument did not prejudice appellant.

Specifically, the government contends that Officer Poor’s belief, i.e., that the

grassy median between the two private parking lots came within the reach of the

POCA statute, was a reasonable mistake, see Heien v. North Carolina 3; and that

even though Officer Poor lacked probable cause to arrest appellant for a POCA

violation, he had probable cause to arrest him for driving under the influence of

alcohol (“DUI”). Appellant argues that Mr. Campbell’s arrest for POCA was

unreasonable because MPD was already on notice at the time of the arrest that the

POCA statute did not cover conduct on private property. 4           Additionally, he


(…continued)
law of the case doctrine applies with equal force in a second or successive appeal
to a decision rendered in a prior appeal.”); see also Willis v. United States, 692
A.2d 1380, 1382 (D.C. 1997) (“The mandate of an appeals court precludes the trial
court on remand from reconsidering matters which were either expressly or
implicitly disposed of upon appeal.”) (brackets and internal quotation marks
omitted).
      3
          574 U.S. 54, 57 (2014) (holding that a traffic stop, which a police officer
initiated upon his mistaken understanding that the state vehicle law required two
working brake lights, was lawful under the Fourth Amendment because the
officer’s mistake was reasonable).
      4
          Appellant also argues that the government’s arguments are not properly
before this court because they were not raised below. We disagree. Appellant first
made his statutory argument in his brief in Campbell I, and the government raised
                                                                        (continued…)
                                         11

contends that his arrest cannot be justified on the basis of probable cause that he

had been driving while intoxicated (“DWI”) because there was no evidence that he

operated a motor vehicle on a highway at the same time that he was under the

influence of alcohol. We conclude that the government has the better of these

arguments, which we take in turn.



      In Heien, a police officer pulled over a car for having a broken brake light,

purporting to enforce a state law requiring that “all originally equipped rear lamps”

be “in good working order.” Heien, 574 U.S. at 57 (citing to N.C. Gen. Stat. Ann.

§ 20-129(d)). The North Carolina Court of Appeals subsequently held that the

statutory term “rear lamps” does not include brake lights, and that thus there was

no statutory basis for the stop. When the matter made its way to the United States

Supreme Court, the Court ruled that the ambiguous statutory phrase, coupled with

the lack of precedent interpreting the provision at the time of the traffic stop, made

(…continued)
its Heien argument at that time in response, asserting that even if the trial court
plainly erred in not recognizing that where the car was parked fell outside the reach
of the POCA statute, “suppression would be unwarranted because Officer Poor
relied on a mistaken, but objectively reasonable, understanding of the POCA
statute.” In opposing appellant’s §23-110 motion, the government did not again
cite Heien, but did argue that Officer Poor had a “reasonable belief” that appellant
“had violated the prohibition against possessing an open container of alcohol in a
. . . parking area.” Appellant thus has had “a reasonable opportunity to be heard
with respect to the reasoning on which” the government urges us to affirm.
Randolph, 882 A.2d at 218.
                                         12

it objectively reasonable for the officer to deem a faulty brake light as constituting

a violation of the statute.      Id.   Therefore, the Court held, the stop was

constitutional, and it affirmed the North Carolina Supreme Court’s determination

that the fruits of the stop (cocaine found after a consensual search of the vehicle)

were admissible. Id.



      Analogous to the vehicle code provision involved in Heien, at the time of

Mr. Campbell’s arrest, our POCA statute was without a definition of “parking

area” and was ambiguous as to what constituted the same, and this court had not

yet had an opportunity to resolve the ambiguity. It was reasonable for Officer Poor

to rely on the ordinary meaning of the term “parking area,” see, e.g., Boyle v.

Giral, 820 A.2d 561, 568 (D.C. 2003) (“We look to the plain meaning of a statute

first, construing words according to their ordinary meaning.”), especially given that

this court had previously affirmed a POCA conviction based on possession of an

open container of vodka in the parking lot of a private employer. See Derosiers v.

District of Columbia, 19 A.3d 796, 798 (D.C. 2011). The question presented in the

instant appeal is not whether the grassy median upon which Mr. Campbell was

parked qualifies as a “parking area” that falls within the ambit of the POCA statute

(we have already decided that it does not), but only whether Officer Poor’s belief

that it so qualified was objectively reasonable at the time of appellant’s arrest. We
                                         13

conclude that the officer’s mistaken belief was objectively reasonable, and that his

action in arresting Mr. Campbell was reasonable, albeit mistaken. Cf. United

States v. Diaz, 854 F.3d 197, 203–5 (2d Cir. 2017) (“Officer Aybar had probable

cause to arrest Diaz for a violation of New York’s open-container law based on a

reasonable belief that an apartment-building stairwell is a public place for purposes

of that law[,]” an assessment that was “premised on a reasonable interpretation of

an ambiguous state law, the scope of which had not yet been clarified”; citing

Heien).



      Appellant counters that the government’s Heien argument is refuted by the

“Report and Recommendations of the Police Complaints Board to Mayor Adrian

M. Fenty, the Council of the District of Columbia, and Police Chief Cathy Lanier

dated August 17, 2009” (“Report”). The Report recognized that MPD’s then-

current enforcement of the POCA statute could lead to arbitrary enforcement and

constitutional challenge in the context of complaints that individuals were arrested

for POCA violations while on private, residential property. It cited officers’ “lack

[of] a clear understanding of the concept of “parking,” a form of public property

subject to POCA which is commonly used as residential property,” 5 and “a clear

need for MPD to take action to properly educate its officers about how legally to

      5
          See the discussion of “parking” in Campbell I, 163 A.3d at 795–97.
                                          14

enforce POCA in the residential context.” Report at 7. The Report also advised

MPD to conduct training on “all aspects of POCA enforcement” with a focus on

the residential context, since this is “the area of greatest confusion[.]” Id.




      While the Report may have put MPD on notice about the intricacies of the

POCA statute as it applies in residential areas (particularly front and back yards),

we are not persuaded that the Report (or any training that might have followed it)

undermines the reasonableness of Officer Poor’s pre-Campbell I belief that

appellant’s possession of an open bottle of vodka in a vehicle parked in a grassy

median in a church parking lot violated the POCA statute. That being the case, we

cannot conclude that the officer’s arrest of appellant for POCA, albeit not

authorized by the POCA statute, was in violation of the Fourth Amendment.




      Officer Poor also likely had probable cause to arrest Mr. Campbell for DUI.

See D.C. Code § 50-2206.11 (2012 Repl.) (“No person shall operate or be in

physical control of any vehicle in the District . . . [w]hile the person is under the

influence of alcohol . . . .”). When Officer Poor encountered appellant, he was

“semiconscious or unconscious, a half-empty bottle of Absolut vodka was in the

vehicle’s center console[,]” and appellant acknowledged that he had drunk some of
                                         15

the vodka. Campbell I, 163 A.3d at 792. According to the Gerstein affidavit,

appellant’s “eyes were glazed and he had trouble focusing his attention.” The

jury’s guilty verdict as to UUV established that he “took, used, or operated” the

car, and Office Poor’s testimony about not seeing the car in the parking lot during

his earlier rounds established that the car had been driven recently. In addition, we

agree with the government that the evidence that the car was parked on the grassy

median when, as Officer Poor put it, “there w[ere] plenty of other available

parking” spaces in the two parking lots permitted an inference that appellant drove

the car there while under the influence of alcohol. And in any event, the evidence

that appellant was alone in the car “in front of the [steering] wheel” with the key to

the car in his pocket, showed that he “was capable of starting the vehicle should he

have awakened and, in his impaired state, made a decision to drive” and thus “was

in physical control of the vehicle for the purpose of [the DUI statute].” Bell v.

District of Columbia, 132 A.3d 854, 857 (D.C. 2015).




      Because Officer Poor’s conduct in arresting Mr. Campbell for a POCA

violation was reasonable under Heien and because Officer Poor also likely had

probable cause to arrest appellant for DUI, appellant has not shown a reasonable

probability that his motion to suppress would have been successful even if his trial

counsel had included in it the statutory-construction argument on which appellant
                                         16

prevailed in his direct appeal. Accordingly, appellant has not shown a reasonable

probability that the fruits of the search incident to his POCA arrest would have

been deemed inadmissible by the trial court, and thus has not shown prejudice

from trial counsel’s omission. We therefore affirm the trial court’s denial of

appellant’s D.C. Code § 23-110 motion.



                                     So ordered.
