Lead Opinion
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.
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.
In a closet in a second bedroom, the police found a .22-caliber rifle. It is un-
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.
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 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 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.
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,
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,
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
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 Fed.Appx. 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,
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 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 havé found inadequate justification for a warrantless entry. See, e.g., United States v. Wolfe,
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.” Logan v. LaSalle Bank Nat’l Ass’n,
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
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 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,
At oral argument, the United States contended in the alternative that the case should be remanded to the trial
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,
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.
Although Smith involved an arrest warrant and the present ease 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.
Because the evidence discovered as a result of Officer Wendt’s entry in the apartment was inadmissible, we reverse Mr. Evans’s convictions.
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,
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 evidence.” Medley v. United States,
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,
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 control over the items. See, e.g., Schools,
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,
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,
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 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,
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.
Under the language of some of our cases, the evidence of intent to exercise dominion and control in this ease seems sufficient. For example, we have said that,
[wjhere 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,
Under this approach, the additional evi-' dence — 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 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,
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. 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,
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,
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
The law of constructive possession has been described as a “thicket” and a “chaotic patchwork.” Thompson v. United States,
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.8d 492, 499 n. 6 (D.C. 2014). See also, e.g., Armour & Co. v. Wantock,
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,
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
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 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.
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.
Concurring opinion by Senior Judge FERREN.
Opinion concurring in part and dissenting in part by Associate Judge BECKWITH.
Notes
. 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.
. 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
. 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,
. The United States has filed a petition for rehearing or rehearing en banc in Smith, contending that the Supreme Court’s subsequent decision in Helen v. North Carolina, - U.S. -,
Concurrence Opinion
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 con
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.
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,
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 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.”
Accordingly, I join Judge McLeese’s opinion for the court.
. Smith v. United States,
. Smith,
. Ante at 887-88.
. Ante at 879-80.
. Ante at 893.
. Ante at 894.
. Cf. United States v. Dykes,
. Ante at 890-91.
. Post at 897; see Schools v. United States,
Concurrence Opinion
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 found in plain view. Ante at 893-94. 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 894.
Though the court concludes its discussion of our case law by finding sufficient evidence that Mr. Evans constructively possessed the plural “guns,” ante at 894, 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 891, none of the three principal factors the court relies on in deeming the evidence
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 891. 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,
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 itself sufficient to establish constructive possession beyond a reasonable doubt.” Ante at 893 (citing Rivas v. United States,
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,
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 there was evidence that the apartment was Mr. Ev
These circumstances are not sufficient under our case law to establish beyond a reasonable doubt that Mr. Evans eonstruc-tively 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.
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,
. 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 879-80, 890-91, 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 878-79, 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 888, even if supported by the record, is not very probative if the officer never saw it during his search of the house.
. 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 890-91, id. at 895 (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.
.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 895-96.
. 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[.]”
. 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.