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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.