Hearing loud noises inside an apartment combined with occupant fully opening the door not being fully dressed deemed sufficient to meet exigent circumstances standard to justify warrantless entry into a home.

Ball v. United States (decided May 24, 2018)

Players: Associate Judges Glickman and Easterly, Superior Court Judge Okun, sitting by designation. Opinion by Judge Okun. Dissent by Judge Easterly. Sicilia C. Englert for Mr. Ball. Trial Judge: Patricia Broderick.

Facts: Around five am, police received a radio run for an “assault in progress” at an apartment building. When two officers arrived, they were met by a resident who identified himself as the person who had called because he had heard “yelling and screaming” coming from Apartment 3. As the officers began to approach the apartment, they both testified to hearing yelling and screaming coming from apartment 4, but said the resident was also pointing at that same apartment as the one he meant. One officer said he heard a “distressed female . . . yelling as if she was in pain or struggling” and the other officer said he heard a lot of “commotion.” The officers knocked several times on the door and identified themselves as police. After “one to three minutes,” a woman opened the door halfway and appeared to the officers to be “somewhat panicked and concerned.” One officer described her as being in “a daze.” The officers asked her what was happening inside the apartment but she did not answer, instead she looked back into the apartment and opened the door fully. The officers then saw a second woman inside the apartment who appeared in the process of getting dressed.

After observing these two women and not receiving any responses to their questions, the officers entered the apartment. There, they observed the appellant with his body “partially obscured by a wall.” The police asked appellant to show his hands but according to the officers he did not and instead kept looking back towards the couch in the living room and reaching towards it. One officer then “wrestled” appellant to the ground and both officers handcuffed him after a struggle that lasted one to two minutes. An officer claimed that the couch moved away from the wall during the struggle and that allowed him to see a black handgun lying behind the couch when they eventually stood up. Once they recovered the gun, the police searched the rest of the apartment “for their safety and the safety of the occupants,” and found “one bag of marijuana from the top of a refrigerator, one bag of marijuana from a television stand in the living room, and a grinder with traces of marijuana on the couch.”

Prior to trial, appellant filed a motion to suppress evidence seized from his apartment because the police entered without a warrant and without consent. The government countered that exigent circumstances permitted the police to enter and that the woman who answered provided the needed consent by fully opening the door. The trial court agreed with the government that there were exigent circumstances to justify the entry, but did not rule on the government’s claim of consent.

Issue: Did exigent circumstances justify the warrantless entry into defendant’s apartment?

Holding: Yes. The court concluded that the officers had an “objectively reasonable basis for believing that they needed to enter appellant’s apartment in order to provide emergency assistance to the occupants of that apartment,” despite neither woman that they observed asking for assistance or making any statements to them to indicate they need assistance, and without seeing any injuries on either woman. While the court said such factors often appear in other cases that justify warrantless entry into a home on an exigent circumstances theory, they are not requirements. To meet the standard, the court relied on the following factors: 1) the officers were responding to a call for an “assault in progress;” 2) the police corroborated the information in the call by first speaking with the resident who made the 911 call and then by claiming to also hear screams and loud noises coming from the apartment; 3) the one to three minute delay in opening the door after the police knocked and announced their presence; 4) the woman answering the door failing to respond to the officer’s questions but appearing to be “somewhat panicked and concerned;” and 5) and that after the door was fully opened, the officers saw a second woman who appeared to be partially dressed. The court did admit that it was a “close” case, but believed in the totality the circumstances meet the necessary standard.

Judge Easterly dissented, notinjg that appellant was in “the privacy of his own home,” he was “naked and the women were in some state of undress. The trio was loud. A downstairs neighbor called the police. The police responded and then entered his apartment, without permission and without a warrant. In protest, [appellant] cried out, ‘This is my house. I live here. This is my house.’ He seemed to think the police had no authority to barge into his house. I would have thought that such an entry was precisely what the Fourth Amendment prohibits.” Judge Easterly wrote that while police were authorized to approach the door and knock on it, they never obtained any additional information from that point on that would have warranted crossing the threshold into the apartment. The dissent found it of no consequence that the woman who answered appeared “panicked and concerned,” because that could have been due to police knocking on the door at five in the morning. The dissent stressed that the court should have also factored into its decision what the police did not see once the door was opened: neither woman appeared to be in “pain or struggling, bleeding or bruised, crying or upset, or in any apparent physical danger. There was no sign of broken objects, upended furniture, or any evidence of a struggle or physical altercation.” The dissent concluded that the majority decision is an endorsement of “surmise and speculation,” which the court’s precedent in cases such as Evans v. United States, 122 A.3d 876 (D.C. 2015) and Washington v. United States, 585 A.2d 167 (D.C. 1991), provide as insufficient to equate exigent circumstances.

Of Note:

• Judge Easterly’s dissent, combined with the majority admitting it was a “close case,” provides a roadmap of how to limit the impact of this decision to its facts in any future case where exigent circumstances is at issue. BM

A question about the Youth Rehabilitation Act produces four opinions, but no firm answers.

Briscoe v. United States (decided March 29, 2018)

Players: Associate Judges Thompson and McLeese, and Senior Judge Ruiz. Opinion by Judge Thompson. Concurring Opinion by Judge McLeese. Separate Statement by Judge Thompson. Dissent by Judge Ruiz. Donna L. Biderman for Mr. Briscoe. Trial Judge: Milton C. Lee

Facts: Briscoe was convicted of robbery while armed, assault with a  dangerous weapon, and possession of a firearm during a crime of violence (PFCV). Because of Briscoe's young age, his attorney asked for a "lenient" sentence under the Youth Rehabilitation Act (YRA). The trial judge imposed a five-year sentence, the mandatory minimum under both the statute for a robbery (or other crime of violence) while armed (D.C. Code § 22-4502(a)) and the PFCV statute (D.C. Code § 22-4504(b)). The judge stated that five years might be "a little too harsh," but imposed that sentence anyway.

Issue: Did the trial court have discretion under the YRA to impose a sentence below the mandatory minimums ordinarily required by the while-armed and PFCV statutes?

Holding: No plain error. The Court reviewed this claim only for plain error because, although defense counsel asked the trial court to make expungement possible under the YRA, "he never argued that the court had discretion not to impose the mandatory-minimum sentences." The attorney's request for a "lenient" sentence did not apprise the court that he was asking for a  below-minimum sentence.

The majority rejected the argument that it was bound by Green v. United States, 974 A.2d 248 (D.C. 2009). In Green the government had conceded that the mandatory minimums in the while-armed and PFCV statutes do not apply in YRA-eligible case. The Court accepted the concession in Green, but, according to the majority, had not decided the issue. Therefore, Green was not binding precedent on that issue.

Analyzing the issue "afresh," the majority held that it was not plain error to apply the mandatory minimum provisions of the "while armed" and PFCV statutes. The YRA authorizes a suspended sentence or a sentence of "treatment and supervision" in place of imprisonment. D.C. Code § 24-903. Both the while-armed and PFCV statutes impose five-year minimums and prohibit (in gun cases) suspension of sentence before the five-year minimum has been served. Thus, the question is whether the YRA trumps the while-armed and PFCV statutes, or vice versa.

For the while-armed statute, the court recognized that Briscoe "possibly has ... the better of the argument." The court noted that § 22-4502(e)(1) expressly forbids a YRA sentence after a person's first while-armed offense — implying that a YRA sentence could be imposed for the first while-armed offense.

For PFCV, however, the Court found nothing in the statute or legislative history to suggest that the statute permits below-minimum sentences under the YRA.  The Court therefore could not find any error that was plain in the PFCV sentence.  For that reason, any assumed error in the armed robbery sentence could not affect Briscoe's "substantial rights" because the sentences were concurrent.

Of Note

• Although the majority opinion suggests that the YRA does not authorize a below-minimum sentence in a PFCV case, it does not so hold. It merely holds that any error was not obvious enough to qualify as plain error. Defense attorneys may continue to argue for below-minimum sentences in these cases.  Support for those arguments can be found in both the majority and dissenting opinions.

• Judge McLeese's concurrence emphasized why, in the majority's view, the Court was not bound by Green.

• Judge Thompson wrote a separate statement, responding to a point in the dissent, explaining why she did not think that the appellant in this case and in Green were "similarly situated."

• Judge Ruiz dissented, concluding that the trial court plainly erred in thinking it was bound by the mandatory minimums. Judge Ruiz reasoned that the Court was bound by Green because the opinion did not say it was merely accepting the government's concession or assuming the issue without deciding it. She also analyzed the statutes to conclude that the YRA trumps the mandatory minimums in the while-armed and PFCV statutes.

• The Court summarily rejected a claim that sanctions should have been imposed for the government's failure to preserve surveillance video of the robbery. Although an investigator testified that he saw a camera in the alley where the robbery occurred, he was never able to get the footage from the property owner.  Because the footage was never in the government's possession, it had no duty under Brady or Rule 16 to turn it over to the defense. DG

Read the full opinion here.

Time’s Up on Those Contempt Charges!

Brookens v. United States (decided April 5, 2018)

Players: Associate Judges Thompson and Easterly, and Senior Judge Ferren. Opinion by Judge Easterly. Johnny Barnes for Mr. Brookens. Trial Judge: José M. López

Facts: In 1986, appellant was charged and convicted of several counts of contempt based on his unauthorized practice of law in violation of then-existing Rule 49. At the time same that it convicted appellant of some of the charges brought against him, the Court acquitted appellant of those counts which alleged he had engaged in the unauthorized practice of law by representing others before a District agency. The Court read then-existing Rule 49 to prohibit only the unauthorized representation of others before courts, not agencies. The Court then issued an injunction prohibited appellant from (1) representing others before any court in the District, (2) holding himself out as a lawyer in the District, (3) engaging in the practice of law in the District, and (4) engaging in any other unauthorized practice of law prohibited by Rule 49.

In 1998, Rule 49 was revised to include a prohibition on the unauthorized practice of law before any District agency.

In 2011, appellant was charged with being in contempt of the 1986 injunction, stemming from his representation of others (namely, a tenant association to which he belonged) before District Agencies. Of the four charges that proceeded to trial, two charged conduct occurring in 2005. Two remaining charges alleged he had violated the 1986 injunction by violating Rule 49 and by representing others before a District agency—on at least one occasion between January 1996 and June 2008. The trial court found appellant guilty of all four counts. The Court of Appeals reversed.

Issue 1: Does D.C. Code §23-113(a)(5), which sets forth a three-year catchall statute of limitations for misdemeanor offenses apply to charges of criminal contempt?

Answer: Yes. The Court holds explicitly for the first time that criminal contempt is a crime just like any other and therefore criminal contempt charges prosecuted in Superior Court are crimes subject to the jurisdictional limitations for the District’s statute of limitations.

Furthermore, each individual contemptuous act is its own offense, and the government may not circumvent the statute of limitations by charging contempt as an on-going crime covering an extension period of time, as was done in this case. The statute of limitations begins to run from the time of the specific contemptuous conduct.

Issue 2: Was there sufficient evidence to support appellant’s convictions for conduct that was not time-barred by the statute of limitations where the 1986 injunction did not bar him from representing others in front of agencies (as opposed to courts).

Answer: No. At the time the Court issued the 1986 injunction, it explicitly held that the then-existing Rule 49 did not cover conduct before government agencies, and therefore acquitted appellant of all conduct occurring before such agencies, as opposed to in Superior Court. The Court holds now that—unless expressly worded to incorporate future changes in an existing law—an injunction must be read to reflect the law as it existed at the time of the injunction. Thus, that Rule 49 has since been amended to include a prohibition on the unauthorized proactive of law before agencies as well as courts, does not render appellant’s actions contemptuous of the 1986 injunction. CP

Read the full opinion here.

Dissent offers guidance on standard for entitlement to evidentiary hearing on IAC claim

Brown v. United States (decided March 29, 2018).

Players: Chief Judge Blackburne-Rigsby, Associate Judge Glickman, Senior Judge Nebeker.  Opinion for the court by Judge Nebeker.  Dissent by Judge Glickman.  Cecily E. Baskir for Appellant.  Trial judge: Ann O’Regan Keary.

Facts: The story of this appeal began in 1997, when Appellant was convicted of first-degree murder.  Fast forward to 2008.  That year, while serving his sentence at a federal penitentiary in California, Appellant attempted to stab a correctional officer.  Appellant’s federal public defender had him evaluated by a psychiatrist, who testified at his 2010 trial.  In the opinion of the psychiatrist, Appellant suffers from PTSD stemming from a 1991 shooting.  As a result of this condition, according to the psychiatrist, Appellant was unable to appreciate the wrongfulness of his actions at the time of the assault. After a mistrial, the 2008 charge was eventually dismissed.  Appellant then sought to attack his 1997 conviction, arguing that his trial counsel was ineffective for failing to investigate Appellant’s mental condition.  Appellant noted that he had told his lawyer about the 1991 incident that was the cause of his PTSD.  Appellant also pointed out that he had no history of violence before the 1991 incident and no motive to shoot the decedent in the 1997 incident.  The trial court denied Appellant’s ineffective-assistance-of -counsel motion without a hearing, reasoning that Appellant had failed to present any evidence to explain why he had failed to raise this claim during his direct appeal.  

Issue: Were trial counsel in the 1990s ineffective for failing to investigate a possible insanity defense, and was appellate counsel ineffective for failing to raise this issue in the direct appeal?   Holding:  No.  There were no observable symptoms or statements from Appellant that could reasonably have called attention to the possibility of an insanity defense at the time of Appellant’s trial.  Appellant therefore failed (1) to show that his trial counsel was ineffective for failing to investigate Appellant’s mental condition and (2) to show cause for the delay in bringing this claim.

Of Note: The DCCA focuses on whether Appellant established that his trial counsel was ineffective and whether the ineffectiveness was the cause of Appellant’s failure to raise this claim in a timely manner.  The basis for the Court’s reasoning is specific to the unique facts of this case.  Judge Glickman’s dissent, however, could be more broadly applicable.  Judge Glickman focuses on the narrower (and arguably more germane) question of whether Appellant was entitled to an evidentiary hearing and appointment of counsel on his claim.   

• As Judge Glickman notes, there is a “strong statutory presumption in favor of holding a hearing.”  All that Appellant was required to do was proffer sufficient facts to show that, with an attorney’s help, he may be able to overcome the procedural bar and demonstrate that his trial counsel was ineffective.   
• The extent of the trial court’s discretion on whether to hold an evidentiary hearing on a § 23-110 claim is “quite narrow.” Slip op. at 15 (quoting Bellinger v. United States, 127 A.3d 505, 514-15 (D.C. 2015)).  The court “shall” grant a hearing “[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”  Id. (quoting D.C. Code § 23-110(c) (emphasis added by J. Glickman).   
• The Court has “declared repeatedly that ‘any question regarding the appropriateness of a hearing on a § 23-110(c) motion should be resolved in favor of holding a hearing[.].’” Slip op. at 15-16 (quoting Newman v. United States, 705 A.2d 246, 261 (D.C. 1997)).   
• In addition, “in reviewing a summary denial, we must be satisfied that under no circumstances could the petitioner establish facts warranting relief.”  Slip op. at 16 (quoting Bellinger, 127 A.3d at 515).  
•  In Judge Glickman’s view, Appellant’s proffer was sufficient to require an evidentiary hearing and appointment of counsel.  Appellant claimed that a mental health examination would have revealed that he suffered from mental illness and could have mounted a meritorious insanity defense, and that the basis for this claim (the expert opinion from his 2010 federal trial) was not available until long after the conclusion of his direct appeal.  On the present record, there was not sufficient evidence to determine that Appellant knew or should have known that he had a mental disorder before his 2008 evaluation.  In Judge Glickman’s view, it was therefore premature of the trial court to deny this pro se motion without an evidentiary hearing.  NG

Read the full opinion here.

D.C. Council: The presumption is in favor of release of juveniles. DCCA: No, seriously, it is.

In re K.G. (decided February 15, 2018)

Players: Associate Judges Beckwith and Easterly, Senior Judge Ruiz. Opinion by Judge Easterly.  PDS for K.G. Trial Judge: Jennifer M. Anderson.

Facts:  K.G., a child, plead involvement to a count of possession of cocaine, and returned to his grandmother's custody pending disposition.  K.G. was later arrested for new drug offenses that were allegedly committed after he turned 18, and thus were charged in adult court.  Although K.G. had been released in his adult case five weeks earlier, the Office of the Attorney General asked him to be placed in secured detention.  The court granted this request, finding that K.G. was a "significant danger to others."  First, the court noted that distribution of cocaine is defined as a "dangerous crime" under the adult detentions statute.  The court also relied on "technical violations" of K.G.'s supervision, such as curfew violations, failure to enroll in drug treatment, and failure to complete computer training.

K.G. filed an interlocutory appeal pursuant to D.C. Code § 16-2328(a).

Issue: Was detention of K.G. authorized by the juvenile detention statute?

Holding:  No. The DCCA provided guidance on amendments to the juvenile detention statute, D.C. Code § 16-2310, that went into effect in April 2017.  Section 16-2310 now further restricts a judge’s authority to order detention.  Under the amended statute, a child can only be detained if that child represents a “significant harm” to the person or property of others, or is a flight risk. Until this case, there was no answer to the question about what exactly “significant harm” means.

The DCCA explained that a child can be detained only if “their particular behavior could cause direct, significant harm to the person or property of a particular individual (or individuals).”  Further, a “generalized harm to the District community at large” is insufficient for detention.  This language brings many changes to the way children were previously detained in juvenile court.

First, technical violations such as not attending school or class, positive drug tests, failing to enroll in drug treatment, or curfew violations are the types of behaviors that are insufficient for detention under § 16-2310, and therefore they are not to be considered in a detention analysis. Second, the standard means that the presumption against detention is much stronger and has teeth. Third, in cases that do not involve a firearm, the court must look to “case specific information” to make the significant harm finding.  Fourth, although the DCCA does not prescribe a particular formula for what behavior would amount to a significant harm, we know that at least a kid on release pending disposition after pleading guilty to possession of cocaine, who was rearrested on adult distribution of cocaine charges, and had technical violations (school, curfew, and drug testing) is not a significant harm to the person or property of others.

Of Note:

• Any attorney practicing in juvenile court needs to read K.G. in full to understand its impact on juvenile detention.

• A quick word on procedure regarding D.C. Code § 16-2328: The DCCA made it clear that a detained child, whose case is pre-trial or pre-disposition, is entitled to an emergency interlocutory appeal under § 16-2328. However, § 16-2328 only applies to the original order detaining the child order by a family court judge and not to later orders denying motions for reconsideration of detention. Because § 16-2328(a) requires the notice of appeal to be filed within two days of the detention order, defense counsel must make a quick decision as to whether to appeal.  The filing of an appeal does not bar defense counsel from also moving to reconsider the detention ruling in the trial court.—Terrence Austin, guest blogging.

Read the full opinion here.

Case Note: APOWA is not unconstitutionally vague

Fadero v. United States (decided March 22, 2018)

Players: Associate Judges Glickman, Fisher, and Thompson.  Opinion by Judge Fisher.  Trial judge: Ronna Lee Beck.

The main issue in this pro se § 23-110 motion was whether the phrase “grave risk of causing significant bodily injury,” incorporated in the crime of felony assault on a police officer while armed (APOWA), is unconstitutionally vague.  Appellant relied on the Supreme Court’s ruling in Johnson v. United States, 135 S. Ct. 2551 (2015).  In Johnson, the Supreme Court considered a provision in the Armed Career Criminal Act (ACCA) that includes conduct “that presents a serious potential risk of physical injury to another” in the definition of “violent felony.”  The Supreme Court found that provision to be unconstitutionally vague.  The DCCA rejected Appellant’s argument that if the “serious potential risk of physical injury” clause in the ACCA offends due process, the “grave risk” language incorporated in APOWA must as well. The problem with the ACCA was that it required judges to determine whether the “ordinary” way a crime unfolded created a serious risk of potential injury – a “highly subjective exercise.”  In contrast, determining whether a defendant committed a violent act that created a “grave risk of causing significant bodily injury” is a question of fact that involves an inquiry into the defendant’s actual conduct.  The provision does not require judges to imagine the risk posed by the “ordinary” APOWA.  NG

Read the full opinion here.

DCCA: The floor of a public restroom may be a "hidden observation post" for purposes of attempted voyeurism.

Valenzuela-Castillo v. United States (decided March 8, 2018)

Players: Associate Judges Thompson and Easterly and Senior Judge Farrell. Opinion for the Court by Judge Farrell. Dissenting Opinion by Judge Easterly. Karl R. Tetzlaff for Appellant. Trial Judge Patricia Broderick.

Facts: Following a bench trial, appellant was found guilty of attempted voyeurism. Viewed in a light most favorable to the conviction, the evidence showed that the complainant encountered appellant on the way to the women’s restroom in a restaurant sometime after midnight. Appellant was leaving the men’s restroom with a broom and dustpan. The complainant had just finished eating, and the restaurant had few other customers. Surveillance footage showed appellant looking at the complainant as she went in the women’s restroom.

The restroom was unoccupied. It contained multiple stalls separated by floor-to-ceiling partitions. The stall doors were approximately one foot off of the ground. The complainant occupied the last stall. After she had been in there for some time, she got an uneasy feeling, looked down, and saw appellant’s face under the door. She had not heard him knock or enter. Upon seeing him, she screamed and cursed and told him to leave. He got up and ran out, saying nothing. The trial court found appellant guilty of attempted voyeurism by apparent reference to statutory provision making it illegal “to occupy a hidden observation post . . . for the purpose of secretly or surreptitiously observing an individual who is . . . [u]sing a bathroom or rest room.”

Issue: Did appellant attempt to “occupy a hidden observation post” within the meaning of the voyeurism statute?

Holding: Yes. Although the statute does not define “hidden observation post,” appellant occupied such a post “by any common-sense understanding” because he “staged his behavior” to avoid detection: he “checked to see that no one was near the rest room, then silently entered it, dropped to the ground, and positioned his head sideways near the floor to look under the door in a way calculated not to draw attention.” Black’s Law Dictionary defines “observation post,” for military purposes, as any “position” from which a target can be watched. This broad definition is consistent with the intent expressed by the Mayor to the City Council before the statute was passed. Contrary to appellant’s argument, this definition would not include nearly all public areas because it is based on the steps appellant took, albeit ineffectively, to ensure that his vantage point was “private.” The dissent’s argument that appellant was engaged in simple invasive viewing likewise ignores these steps.

Dissent: No. The bathroom floor was not a “hidden observation post” because it allowed appellant to be seen by the complainant and anyone who came in the bathroom. The majority’s attempt to read “hidden observation post” to cover this circumstance ignores that simple invasive viewing was already prohibited by the disorderly conduct statute when the Council passed the voyeurism statute. The Council’s intent in creating a separate voyeurism offense was to punish conduct that went beyond simple invasive viewing, such as the use of surveillance devices or specialized “hidden observation posts.” Although the Council later redefined disorderly conduct to exclude simple invasive viewing, the Court cannot use voyeurism to fill the resulting gap. The majority’s interpretation of “observation post” to mean body positioning is inconsistent with the common definition of “post” as a fixed location and risks punishing innocent activity, such as looking under a stall to ensure it is unoccupied.

Of Note:
The Court has held that “conduct[] designed to enable appellant to observe the victim while himself unseen [may meet] the statutory requirement that [the defendant] occupy a hidden observation post,” or, in any case, that the requirement he attempt to do so. Whether such conduct exists in a given case is a fact-specific inquiry. WC.

Read the full opinion here.