Brady applies to pre-trial suppression motions

Lamont A. Biles v. United States, Nos. 11-CM-612 & 11-CM-613 (decided October 23, 2014).

Players: Associate Judges Thompson and Beckwith; Senior Judge Farrell. Opinion by Judge Beckwith; concurring opinion by Judge Farrell; opinion concurring in the judgment by Judge Thompson. Anna Scanlon for appellant. David Goodhand for the United States. Trial Judge Brook Hedge (first trial); Judge Geoffrey Alprin (second trial).

Facts: Appellant was twice convicted, in separate trials, for trying to sell counterfeit DVDs at a flea market on two different occasions. In the first incident, appellant offered to sell DVDs to an officer wearing plain clothes. The officer said he was not interested, and reported this discussion to another officer, Davis. When approached by Officer Davis, appellant said he was not selling DVDs. Officer Davis arrested him and, relying on an informant tip, found, about eight feet away from appellant, a stack of crates with counterfeit DVDs underneath appellant’s backpack, which contained his ID. In the second incident, about a month after the first, Officer Davis found appellant’s backpack lying near crates containing counterfeit DVDs. Although Officer Davis did not find an ID inside appellant’s backpack this time, she knew the backpack (and thus the DVDs) belonged to him because she recognized it from the first incident.

Issue: Did the prosecutor violate Brady by belatedly disclosing, in the middle of the first trial, that Officer Davis found the backpack containing appellant’s ID and the counterfeit DVDs about eight feet away from appellant rather than, as the prosecutor had implied, as part of a search incident to appellant’s arrest?

Holding: Yes.

• Appellant preserved his Brady claim, even though trial counsel “did not invoke Brady by name,” because counsel made an objection with “the clear hallmarks of a Brady claim” by seeking exclusion of the government’s physical evidence as a sanction for the prosecutor’s belated disclose of the informant tip.

• Brady applies to facts “tending to show the inadmissibility of government evidence,” including — as here — facts that would support a successful Fourth Amendment motion.

• Here, the suppressed information tended to show that Officer Davis’s warrantless search of appellant’s backpack and crates, which were outside of appellant’s “wingspan,” did not fall within the search-incident-to-arrest exception to the warrant requirement.

• The prosecutor “suppressed” this information because the belated disclosure made the defense unable to “use the favorable material effectively.” The “confused aftermath” of the belated disclosure made counsel unable to “appreciate [its] full legal significance” during the first trial. This led the trial court to erroneously rule that the government’s physical evidence was admissible, and counsel had no obligation to seek reconsideration of this ruling, which constituted “law of the case” for both trials.

Practice tips:

• During discovery, cite this case to demand that the government turn over any information that would tend to justify suppression of its evidence. And if the government fails to comply, seek Brady sanctions.

• Cite this case when the government argues that your appellate claim was not preserved at trial because counsel either (a) didn’t specifically cite the controlling rule or (b) didn’t seek reconsideration of the trial court’s initial ruling.  JM

Read full opinion here.