UNITED STATES of America, v. Charles R. BROWN, Appellant.
Nos. 77-2106, 78-1646
United States Court of Appeals, District of Columbia Circuit.
Decided Aug. 10, 1981.
229
Argued En Banc Oct. 20, 1980.
For the reasons stated, the unions’ petition for review and the Board‘s cross-application for enforcement are both
Denied.
Ellen Sue Shapiro, Washington, D. C. (Appointed by this Court), for appellant.
Before ROBINSON, Chief Judge, and WRIGHT, McGOWAN, TAMM, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.
Opinion for the court filed by Circuit Judge ROBB.
Concurring opinion filed by Circuit Judge WILKEY.
ROBB, Circuit Judge:
On the afternoon of July 5, 1977 Officers Harvey, Robinson and Galante of the Metropolitan Police Department were patrolling in a police vehicle on T Street, N.W., in the City of Washington. Harvey was driving. The officers saw the defendant Brown in a kneeling position, peering through the mail slot in the door of a basement apartment at 1500 T Street. Harvey stopped the police car and Officers Robinson and Galante got out and went up the walk toward Brown. As the officers approached, identifying themselves as police, Brown stood up, looked over his shoulder at them, and “started knocking on the front door.” At this time when the policemen were about a foot away from him, Brown “threw” (Officer Robinson‘s Testimony, TR. 66, 67, 96) or “shoved” (Officer Galante‘s testimony, TR. 105, 106) a brown paper bag into a bush growing in a tree box to the left of the front door. The bush was approximately two feet six inches tall and the paper bag lodged in its lower branches. Officer Robinson recovered the bag which contained 57 glassine bags of heroin. The heroin was divided evenly among the bags and had a “street value” of approximately $5,000. When Brown was searched at the stationhouse the police found in his shirt pocket a sheet of notebook paper recording the names of persons to whom drugs had been sold and the amount of money owed for the drugs. Brown also had four empty glassine bags in his pants pocket.
After a jury trial Brown was convicted of possession of heroin with intent to distribute in violation of
Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.
The government‘s suggestion for rehearing en banc having been granted and argument heard by the court sitting en banc, we now vacate the opinion of the panel and affirm the judgment of the District Court.
The record discloses that Brown‘s trial counsel was an experienced criminal lawyer. At the hearing on the motion for a new trial he testified that 90% of his practice consisted of criminal cases. In those cases search and seizure questions frequently arose, especially in drug cases. In particular, as counsel for a defendant in a previous case, he had researched the law on search and seizure as it related to abandoned property. In that case police officers had seen a man “slipping something behind his back“. Counsel had filed a motion to suppress, which was denied.
Defense counsel is not required to file a motion to suppress in every case in which evidence obtained by a search is offered against a defendant. On the contrary, counsel must exercise his best professional judgment in deciding whether there are sufficient grounds for filing a motion. Were this not so counsel would be required to file a motion to suppress in every case, to protect himself against a charge of incompetency. See United States v. Aulet, 618 F.2d 182, 187-88 (2d Cir. 1980). A defendant is of course entitled to the reasonably competent assistance of counsel acting as a diligent, conscientious advocate. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973); United States v. Moore, 180 U.S.App.D.C. 227, 554 F.2d 1086 (1976). This means counsel‘s professional judgment must be an informed judgment based on adequate preparation and knowledge of the facts and applicable law. If counsel makes such a judgment and it falls within the range of competence demanded of attorneys in criminal cases, we may not find him ineffective because the perfect vision of hindsight indicates that his judgment may have been mistaken. United States v. Smith, 179 U.S.App.D.C. 162, 168, 551 F.2d 348, 354 (1976); United States v. Moore, supra; United States v. Blue Thunder, 604 F.2d 550, 554-55 (8th Cir.), cert. denied 444 U.S. 902, 100 S.Ct. 215, 62 L.Ed.2d 139 (1979).
In the case before us trial counsel‘s previous research had made him familiar with the law relating to the abandonment of personal property. He was fully informed of the facts through discovery and interviews with his client. On this basis counsel decided that the court would hold that Brown had abandoned the heroin. Accordingly, counsel concluded that a motion to suppress would be futile. His “failure to move to suppress was thus the product of deliberate and informed decision, not oversight or inadvertence.” United States v. Smith, supra, 179 U.S.App.D.C. at 167, 551 F.2d at 353 [Footnote omitted]. We think the decision was neither unreasonable nor plain error. Certainly it was not a mistake so serious that it constituted ineffective assistance of counsel. By the same token, it did not constitute “cause shown” to grant relief from the waiver provision of Rule 12(f).
Brown‘s counsel on appeal contend that trial counsel‘s decision to forego a motion to suppress was based on inadequate research or misinterpretation of the law. On the contrary we think that counsel‘s judgment was a reasonable assessment of both the facts and the law. As the panel opinion recognized, abandonment is primarily a matter of intent, and intent may be inferred from the words and actions of the defendant and other objective facts. Police pursuit does not of itself render abandonment involuntary. United States v. Col-
The Court, of course, heard the trial and recalls that the entire picture was that this man wanted to disassociate himself from the bag completely in hopes the police would not think he had anything to do with it.
(Motion TR. 18-19)
A case similar to this one in many respects is City of St. Paul v. Vaughn, 306 Minn. 337, 237 N.W.2d 365 (1975). In that case the defendant, driving his automobile, stopped in front of a dry cleaning establishment. When he saw a police squad car pull up behind him he ran into the cleaning establishment, followed by the police, and tucked an eyeglass case under the counter. Police retrieved the case, found it contained a hypodermic syringe and other drug paraphernalia, and arrested the defendant. The Supreme Court of Minnesota held that the defendant had abandoned the eyeglass case. After quoting from United States v. Colbert, supra, the court said that the defendant
argues ... that his intention was merely to hide the case not to relinquish his right of ownership. That is not the test. The distinction between abandonment in the property-law sense and abandonment in the constitutional sense is critical to a proper analysis of the issue. In the law of property, the question, as defendant correctly states, is whether the owner2 has voluntarily, intentionally, and unconditionally relinquished his interest in the property so that another, having acquired possession, may successfully assert his superior interest. Brown, Personal Property (3 ed.) § 1.6. In the law of search and seizure, however, the question is whether the defendant has, in discarding the property, relinquished his reasonable expectation of privacy so that its seizure and search is reasonable within the limits of the Fourth Amendment. Cf. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In essence, what is abandoned is not necessarily the defendant‘s property, but his reasonable expectation of privacy therein.
237 N.W.2d at 370-371 [Footnote omitted]. The reasoning of the Minnesota court might well be applied to Brown‘s action in discarding his bag of heroin.2
Trial counsel‘s representation of Brown, including his failure to move to suppress the evidence, did not fall below the level of effective assistance of counsel. Accordingly there was no “cause shown” to grant relief from the waiver provision of
The opinion of the panel is vacated, and the judgment of the District Court is affirmed.3
So ordered.
WILKEY, Circuit Judge, concurring:
I concur in the excellent opinion of Judge Robb for the court. I am writing here solely to point out an alternate ground for decision in this case not otherwise considered today. The court‘s opinion addresses a relatively narrow issue involving the application of
At issue in this case is whether the exclusionary remedy can be invoked after trial by a defendant whose lawyer failed to file a pretrial suppression motion at the appropriate time before trial. The appellant here contends that he has a right to a post-trial consideration of his exclusionary rule claim because his attorney‘s failure to raise that claim in a timely fashion constituted a serious, prejudicial error amounting to a serious defect in the assistance rendered to him by his counsel.
The exclusionary remedy, however, is not a personal right to which a defendant is entitled. That idea has been clearly rejected by the Supreme Court. The appellant in this case has no entitlement whatever to the benefits of the exclusionary remedy. The exclusionary remedy exists solely for the purpose of removing what incentive there might otherwise be to unconstitutional police conduct.3
Had his attorney moved at the appropriate time for suppression of the evidence at issue, the appellant would have been serving merely as an instrument of the public‘s interest in the suppression of unconstitutionally obtained evidence. When an attempt is made after trial to suppress evidence under the exclusionary rules, the only appropriate inquiry is whether the public interest in deterring the unconstitutional seizure of evidence outweighs the public interest in the orderly conduct of trials and in the finality of criminal convictions.4 The interest of the individual defendant concerned is immaterial, except insofar as it provides an incentive for him to bring before the court arguments based on the public interest.
The true question in this case, then, is whether posttrial imposition of the exclusionary remedy for whatever reason would provide an incremental disincentive to unconstitutional police action outweighing the costs. I conclude it plainly does not. I would therefore affirm for that reason without the need for inquiry into the performance of the appellant‘s counsel.
I. THE AIMS OF THE EXCLUSIONARY REMEDY
The exclusionary remedy has not always been a fixture in
The costs of the rule have always been well understood, and they have become even more apparent since the rule has been applied against the states to all criminal cases rather than limited to the much shorter list of federal crimes. The uncommonly high costs this rule has imposed on the judicial process at criminal trials has frequently been noted by the Supreme Court. Justice Jackson put it this way:
Rejection of the evidence does nothing to punish the wrong-doing official, while it may, and likely will, release the wrong-doing defendant. It deprives society of its remedy against one lawbreaker because he has been pursued by another. It protects one against whom incriminating evidence is discovered, but does nothing to protect innocent persons who are the victims of illegal but fruitless searches.8
These extraordinary costs perhaps were more easily borne when the operation of the exclusionary remedy was limited to white collar federal crimes such as income tax evasion and counterfeiting. And the willingness to bear these costs was perhaps greater in an era more sensitive than ours to the dangers of a powerful, centralized federal government. But once the rule was applied to the states and the less antiseptic state crimes—murder, rape, robbery, arson—the high costs the rule exacts became less tolerable.9 So when applications of the rule were litigated before them, courts began to look longer and harder before imposing the rule to ensure that its purposes would in fact be served in the cases before them. As courts saw criminals guilty of the most wicked crimes go free as the incidental beneficiaries of the rule‘s operation, they began to refuse to invoke the rule in situations in which its asserted purposes could only marginally be fulfilled.10 A
The attempt to cabin the rule‘s operation to that core of circumstances in which the rule‘s central functions at least arguably would be vindicated required that the rule‘s foundations be better elaborated. The rhetoric to be found in various cases invoking the rule over the years was combed, the chaff discarded, and only the kernel retained.
The results of this process were admirably summarized in the opinion for the Court in Stone v. Powell.12 Justice Powell noted that two principal reasons for application of the rule had been advanced, but that only one played more than a “limited role”13 in determining whether the rule would be applied in particular concrete situations. “The primary justification for the exclusionary rule,” wrote Justice Powell, “is the deterrence of police conduct that violates
In support of this contention Justice Powell noted five circumstances17 in which the interest in promoting judicial integrity does not prevent the introduction in the courtroom of illegally obtained evidence or persons: (1) courts do not exclude unconstitutionally seized evidence if the defendant consents to its introduction, or even if he simply fails to object;18 (2) courts do not exclude unlawfully obtained evidence if the defendant objecting to its introduction was not the victim of the constitutional violations of which he complains;19 (3) court proceedings do not abate when the defendant‘s presence has been unconstitutionally obtained by unlawful seizure of his person;20 (4) illegally seized evidence can be used in grand jury investigations;21 and (5) evidence tainted by the unconstitutional means by which it was obtained can be used at trial to impeach a defendant.22 To this list we may now add a sixth situation considered in Stone v. Powell: (6) a defendant may not use the admission at his trial of unconstitutionally obtained evidence as a basis for collateral attack on his criminal conviction.
In the case before us we thus confront a simple question: would the incremental deterrence to police misconduct created by the provision of a post-trial opportunity to litigate an exclusionary rule question outweigh the costs of invoking the rule?
II. THE COSTS OF THE RULE
We begin by examining what is to be found in the pan on the costs side of the balance. Here we find not only the costs associated with all applications of the exclusionary rule but also additional costs arising from the disruption of orderly trial procedure, which any relaxation of the rules regarding what must be done before trial entails.
The general disadvantages of the exclusionary rule are well known. First, “the physical evidence ... excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.”26 The truthfinding function of a trial is thus subverted whenever the rule is successfully invoked. Second, “the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding.”27 What should be a trial of the defendant becomes instead an
In addition to these these general costs which must be borne whenever the exclusionary rule is applied, there are other costs peculiar to the situation before us. Permitting post-trial litigation of questions regarding the suppression of evidence necessarily undercuts the purposes of
On the other hand, if the evidence survives a pretrial suppression hearing, the defendant may well seek a plea-bargained settlement, or may decide to plead guilty in the face of overwhelming—and admissible—evidence against him. Either way, much will be saved by an early determination of the admissibility of evidence which may be challenged on constitutional grounds.
There are yet other purposes served by the requirement of
We thus see that the costs, both general and particular, of permitting post-trial attempts to suppress evidence on exclusionary rule grounds are high indeed.
III. THE SPECULATIVE BENEFITS OF POST-TRIAL EXCLUSION
We now turn to see what can be found in the pan on the benefits side of the balance. For only if the benefits outweigh the costs can the exclusionary remedy be afforded to the defendant. At the outset it is impor-
The Supreme Court has underscored this point time and again. The Court made this point long ago, even before its decision in Mapp v. Ohio applying the exclusionary remedy to the states, when it emphasized that “[t]he rule is calculated to prevent, not to repair.”33 The Court has reiterated the point right up to the present day. For example, in Stone v. Powell the Court put it this way: “Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure ....”34 And again in United States v. Calandra the Court wrote: “[T]he rule is a judicially created remedy designed to safeguard
The appellant thus does not have a personal entitlement to the benefits of the rule. In consequence he cannot complain on his own account that he has been deprived of its benefit. In his arguments before us he serves merely as an instrument of the public interest, motivated undoubtedly by self-interest, but constrained to channel his efforts on his own behalf into the presentation of arguments on behalf of the public. Should he prevail, he will receive payment in the form of the reversal of his conviction. But should he fail, he has lost nothing to which he has a personal claim.
The sole benefit of decisional significance the exclusionary remedy provides is the deterrent effect its present application may have on future police conduct. The appellant‘s argument must then be that a police officer will be less likely to commit unconstitutional acts if he knows that, should the defendant‘s lawyer fail to make a timely pretrial suppression motion through plain error, the defendant will have a post-trial opportunity to litigate his
I submit this argument is absurd on its face. Apart from the unlikelihood that police officers who are not also criminal lawyers will even be aware of this court‘s interpretations of
I conclude that the pan on the benefits side of the balance is empty, or at the very least contains only highly speculative advantages with the weight of a feather.
This is therefore a straightforward case. The balancing process which the Supreme Court has followed in deciding whether or not the exclusionary remedy should be extended to new situations tilts solely to one side. This is simply not an appropriate circumstance for the application of the exclusionary remedy.
The rule provides a windfall benefit to the defendant who successfully invokes it. We have so far accepted this result, despite its adverse effect on the security of the law-abiding public, because the deterrence of future police misconduct we hope to obtain can be purchased only at this price. In effect, by adopting the exclusionary remedy the courts have decided to hire criminals to act as private attorneys general to prosecute the police for constitutional violations. When successful, these private attorneys general are handsomely rewarded with liberty they do not deserve. It is not too much to ask that to earn their reward they file their claims at the appropriate time.