DC: Withheld information about a viable search issue was a Brady violation

Withheld information about a search issue that would likely have been successful is Brady information. Here, the issue developed during trial. Biles v. United States, 2014 D.C. App. LEXIS 439 (October 23, 2014):

Turning to the merits, the government, again, identifies no reason Brady should not apply to the failure to disclose information material to suppression hearings, and we likewise find no basis in our case law. We have repeatedly held that information tending to show the inadmissibility of government evidence is “favorable” evidence that must be disclosed under Brady. In Gaither v. United States, 759 A.2d 655 (D.C. 2000), amended by 816 A.2d 791 (D.C. 2003), we remanded for findings on whether the government had withheld Brady information pertaining to suggestive identification procedures. In Smith v. United States, 666 A.2d 1216, 1224-25 (D.C. 1995), we held that the government violated Brady by failing to disclose a witness statement that undermined the admissibility of a government witness’s purportedly spontaneous utterance. And in James v. United States, 580 A.2d 636 (D.C. 1990), we similarly evaluated under Brady a late-disclosed witness statement that “cast[] serious doubt” upon the trial court’s finding that another statement it admitted “was truly spontaneous.” Id. at 638.

And while we have never had occasion to explicitly address whether information is “favorable” for Brady purposes if it relates to a defendant’s claim at a Fourth Amendment suppression hearing rather than at trial, we have assumed as much in at least one case. In Porter v. United States, 7 A.3d 1021 (D.C. 2010), Eugene Porter contended that his due process rights under Brady were violated when the government failed to turn over information about an informant that, in Mr. Porter’s view, would have shown that police lacked probable cause to arrest and search him and that his motion to suppress evidence should have been granted. Id. at 1023. This court, never questioning that Brady applied in such circumstances, held that the information at issue “was not material to the defense” given that the informant did not testify and that the police were not aware of the information when they decided to arrest and search Mr. Porter. Id. at 1026.