United States v. Charles R. Brown, (2 Cases) , 663 F.2d 229 ( 1981 )

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 station-house 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 21 U.S.C. § 841 (1977). He appealed. He also appealed the denial of his motion for a new trial based upon the alleged incompetency of his trial counsel¹ in failing to file a pretrial motion to suppress the evidence against him. A panel of this court, one judge dissenting, held that Rule 12(f) of the Federal Rules of Criminal Procedure “does not bar consideration of appellant’s suppression claim”; and the panel remanded the record to the District Court “for consideration of that issue.” The panel found that the “record establishes the requisite cause for relief under Rule 12” in that “trial counsel made a serious misjudgment in not filing a suppression motion.” United States v. Brown, No. 77 — 2106 (D.C.Cir., Mar. 21, 1980).

Rule 12(f), Fed.R.Crim.P. provides:

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 siting 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.

Trial counsel was given full discovery of the evidence by the prosecutors assigned to the case. In addition he conferred with Brown on several occasions concerning the case and the proper strategy for defense. Two days before trial, in a “very short conversation on the order of about thirty seconds, perhaps a minute”, Brown asked him to file a motion to suppress. Counsel told Brown he thought the motion would not lie because the bag containing the narcotics had been abandoned. Brown did not protest, and nothing more was said about filing a motion. Counsel and Brown decided to defend on the basis that the government had to prove beyond a reasonable doubt that Brown possessed the narcotics. Trial counsel testified that this defense “was simply determined by the facts of the case as I found them to be during discovery and my conversation with Brown.” In support of the defense counsel called a witness who testified before the jury that he had been with Brown when Brown was arrested and for two hours before that time, had seen the bag of narcotics when the policeman pulled it out of the bush, and that he was “positive” that at no time had he seen Brown in possession of the bag.

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). Rule 12(f) would have no force if any mistake by counsel which an appellate court considers “serious”, although not amounting to ineffective assistance, would excuse failure to comply with the rule.

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. Colbert, 474 F.2d 174, 176 (5th Cir. 1973). In view of the conduct of Brown on the occasion when he discarded the bag of heroin it is plain to us that trial counsel could reasonably conclude that Brown intended to abandon the bag and that a court would so hold. This view of the evidence was confirmed by the district judge who remarked, during the hearing on the motion for a new trial:

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 owner 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 Rule 12(f).

The opinion of the panel is vacated, and the judgment of the District Court is affirmed.³

So ordered.

1 . After the verdict new counsel were appointed to represent Brown.

2 . We do not of course hold that as a matter of law the bag of heroin was abandoned; we say only that, in light of the facts and the law, trial counsel’s decision was neither unreasonable nor plain error.

3 . We reject Brown’s additional contention that it was error to admit the prior conviction of a defense witness for impeachment purposes. See Fed.R.Evid. 609(a).