Disorderly conduct is a really annoying charge.

The first problem is that the offense is usually so broad and poorly defined that it is too easy for police to charge and too easy for the government to prove at trial.  For example, since intent to cause a “public inconvenience” is a major element of the offense in Pennsylvania, the problem I had in Philadelphia was that any police activity, any gathering of curious onlookers as a result of this activity, and anything less than absolute compliance by the suspect with the officer instructions inevitably resulted in the inclusion of this offense in the list of charges against a client.

The second problem with the offense is that, while it is only a minor misdemeanor, an arrest on this charge often serves as the legal basis for more serious charges.  For example, once the police arrest the suspect for disorderly conduct, they are now legally entitled to search him for weapons and contraband.  This means that an arrest for disorderly conduct often leads to felony drug and firearms charges.

The good news in this city is that the D.C. Court of Appeals issued a decision last week, In Re T.L., in which it narrowed the scope of the offense in the District.  Specifically, it held that, in order to satisfy the “breach of peace” requirement under the statute, the government must prove either that (1) the defendant’s speech or conduct was likely to trigger violence or (2) it was “unreasonably loud and disruptive.”

In D.C., the government must prove two elements in order to secure a conviction for disorderly conduct.  The government must first prove specific intent; in this case, that the defendant acted with intent to provoke a “breach of the peace” or under circumstances such that a breach of peace might occur.  Second, the government must prove that the defendant either: (1) acted in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregated with others on a public street and refused to move on when ordered by the police; (3) shouted or made a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interfered with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook or handbag; or (5) caused a disturbance on public transportation.

In the case at hand, the Court was faced with situation in which the defendant had been stopped on the street by a police officer who confiscated a large sum of cash from the defendant.  When the defendant objected, calling out loudly for his mother to come help him, the officer placed him under arrest for disorderly conduct.  Upon searching the defendant incident to arrest, the officer discovered 24 ziplock bags of crack cocaine hidden in the defendant’s pants and placed him under arrest for possession of cocaine with the intent to distribute.

In denying the defendant’s pretrial motion to suppress the evidence, the trial court reasoned that, because the defendant “continued to scream and shout and began drawing a crowd of people to come out from the neighborhood,” the officer had probable cause to arrest him for disorderly conduct.  The recovery of the cocaine was then legally valid under the “search incident to arrest” exception to the Fourth Amendment requirement for a warrant.

In overturning this decision, and in vacating both the misdemeanor and felony charges, the Court of Appeals spelled out two ways in which the government could have proven the “breach of peace” requirement.

The first way would have been to prove that the defendant’s speech or conduct was likely to trigger violence.  A police officer who has “objective reason to believe that violence is imminent need not stand by and await its outbreak before he attempts to control the situation with a disorderly conduct arrest.”  However, in this case, the Court held that the government failed to meet this burden:  “[T]hough T.L. loudly protested Officer Elliott’s seizure of his money (and called upon his mother for help), he did not urge the onlookers to intervene on his behalf or otherwise manifest an intent to provoke them to violence.  And while T.L.’s yelling may have annoyed the neighbors who were attracted to the commotion, there is no evidence they were hostile or likely to become violent.”

The second way would have been for the government to prove that the defendant’s speech was “unreasonably loud and disruptive.”  “The government has a substantial interest in protecting its citizens from unwelcome noise, an interest that is perhaps at its greatest when government seeks to protect the well-being, tranquility, and privacy of the home.”

Again, however, the Court held that the government had not met this requirement in the T.L. case.  It was the police officer’s wrongful conduct – the confiscation of the defendant’s money without cause to do so – that created the disturbance in the first place. And the defendant’s yelling lasted only a few minutes before he was arrested.  The Court therefore held that the defendant’s “loud but peaceful protestations and calls for his mother’s help in reaction to [the officer’s] unjustified seizure of his money were a response to an emergency situation and were not unreasonable under the circumstances.”

Gilbert Arenas (Associated Press)

“Ur new story.  U were n the training rm when u got out there were 3 guns on ur chair with a note.  That said pick one.  Send to javaris ill take the Blame. He didn’t have a gun he didn’t do anything.  Ill come up with the story.  But that all he needs to say.”

This is the text message Washington Wizards basketball player Gilbert Arenas sent to another teammate on December 22, 2009.  This was a day after Arenas was involved in the locker room incident with fellow Wizard Javaris Crittendon that led to gun charges for both players.

You are reading these words here because the Washington Post had access to the text message.  So did the prosecution.  The prosecution is now using the text message as part of its argument that Arenas should serve some jail-time for his role in the incident.

The lesson?  Think of Richard Nixon and Watergate. Cover up efforts can often lead to more trouble than the original offense.  They can lead to additional criminal charges, such as obstruction of justice.  They can come in at trial as an acknowledgement of guilt on the original charges, thereby making life more difficult for your lawyer.  And, as Gilbert Arenas is finding out, they can complicate things for you during sentencing.

The Washington Post reported this morning that Gilbert Arenas of the Washington Wizards has pleaded guilty in D.C. Superior Court to the felony charge of Carrying a Pistol Without a License (CPWL).  The offense carries a maximum fine of $5,000 fine and up to 5 years in jail.  Sentencing in front of D.C. Superior Court Judge Robert Morin has been set for March 26, 2010.  According to the Post, the plea was part of a deal in which the prosecutors – the U.S. Attorney’s Office, which prosecutes this type of case in D.C. – have agreed not to ask for more than six months in jail.

Photograph by Associated Press

According to Section 22-4504(a) of the D.C. Code, it is illegal to carry a pistol without a license or any deadly or dangerous weapon that is capable of being concealed.  If the possession is outside the person’s “dwelling place,” business place or property, the crime is a felony.  Otherwise, it is a misdemeanor subject to a $1,000 and a maximum 1 year sentence.  (While still on the books in D.C., the misdemeanor charge  of possession within one’s home was recently struck down by the U.S. Supreme Court in District of Columbia v. Heller as violating the Second Amendment.)

Judge Robert Morin is known in D.C. as a very capable, pleasant and reasonable judge.   While he is not bound by the terms of the plea agreement, a point he reportedly emphasized to Arenas at the hearing, I think it is unlikely, absent some gross error or injustice, that he will tinker with an agreement that has been so carefully worked out by the two sides. Arenas is represented by Kenneth L. Wainstein, a partner and member of the White Collar Defense and Corporate Investigations Practice at O’Melveny & Myers LLP.

In “Gilbert Arenas’ Rush to Lose,” prominent New York lawyer and legal blogger Scott Greenfield criticizes Arenas and his lawyer for failing to challenge the charges under Heller.  Writes Greenfield:

“Almost all the stars were aligned in this case.  The only two stars out of place were Arenas and Wainstein.  And Arenas gave up without a fight.  We will never know whether he could have beat the case by challenging the law under Heller.  We will never know whether it was Wainstein or Arenas who made the decision, and whether it was a good choice or a bad choice.  It’s likely that Judge Morin is too good a judge to use the Arenas sentence to make an example of him rather than treat him like a human being, but we’ll never know whether Wainstein told Arenas how fortunate he was that, given a bad situation, he had the opportunity to fight.”

Gilbert Arenas' lawyer Kenneth L. Wainstein

While I have tremendous respect for Mr. Greenfield and am a regular reader of Simple Justice, I have to disagree with him on this one. First of all, Heller applies to firearms in one’s home, not the locker room where the Arenas incident took place.  Justice Scalia’s decision specifically emphasizes that the Second Amendment right is not unlimited, and I do not agree, as Greenfield suggests, that Arenas’ possession of the firearm in his place of business – the locker room – is a “tiny baby step from possession in the home.”  It is in fact an enormous step.

Second, based on my experience (and Greenfield acknowledges this), few clients want to become the poster child for anything.  Most clients are embarrassed by the criminal charges and just want to put the whole sorry matter behind them as quickly and as quietly as possible.  Even if Arenas could fight the case all the way up to the Supreme Court and win, could you blame Arenas for not wanting his name to become synonymous with firearm possession?

“Roe” was at best a very reluctant participant in Roe v. Wade, and later blamed the case for ruining her life.

When I practiced criminal law in Pennsylvania, there was a very famous pro-defendant suppression case called Commonwealth v. Marlon Banks.  You could hardly litigate a motion to suppress on a drug case without citing Banks. One of my colleagues was thus overjoyed when, who should walk into her office but the one and only Marlon Banks, facing yet another drug charge.  Banks was largely unaware that he had become such a celebrity.  He was also tremendously embarrassed by it.

How fun would it be to cite Banks while defending Banks?  The closest I ever came to that type of situation was when I used another famous Pennsylvania case — Commonwealth v. Dunlap — to argue a motion to suppress in front of the same trial judge who had been overturned on the case.  Coincidentally, the arresting officer was even the same and, damn, wouldn’t you know but he made the exact same mistake while arresting my client.  I walked up to the assistant district attorney after the motion and asked:  Am I the only person who noticed this coincidence?  The ADA smiled.  “I’m guessing the judge didn’t miss it,” she replied.

Since I’ve already digressed, I’ll conclude with a story my criminal procedure professor told us in law school.  When his mother found out that Ernesto Miranda of the famous Miranda v. Arizona case had died, she told her son:  “Oh, what a shame.  After all that man has done for our country!”  I’m thinking Miranda wasn’t too proud of his involvement in that case either.

A defendant can in some cases be convicted of a criminal offense in Washington, D.C. for doing nothing more than possessing a particular object or substance.

According to D.C. law, for example, it is illegal to possess marijuana, heroin, cocaine and other substances that are controlled under the D.C. Controlled Substances Act.  Possession of other substances, such as oxycontin and percoset, is illegal without a valid prescription.

In addition to certain drugs and other controlled substances, D.C. law restricts the class of people who may be in legal possession of firearms, guns, ammunition, and dangerous weapons.  It is, for example, illegal for a drug addict or person who has been convicted of a felony to possess a firearm.  D.C. law also restricts the methods, means or modes of carrying a firearm, gun or weapon.  For example, carrying a firearm without a valid license pistol would subject a person to the criminal charge of carrying a pistol without a license (CPWL).

For the purposes of D.C. law, there are two forms of possession:  (1) actual possession, and (2) constructive possession.

Actual possession is obvious.  This means that the person has physical possession of tangible property by, for example, holding it in his/her hand or by carrying it on his/her body or person.

“Constructive possession” is a little bit more complicated.

Courts will often “construe” legal terms, concepts or situations in order to achieve some type of judicial or equitable objective.  In the area of landlord-tenant relations, for example, a court might find that a tenant who is still in actual physical possession of a particular apartment has in fact been “constructively evicted” from the apartment due to unlivable conditions caused by the landlord’s neglect.  Likewise, in the area of trusts and estates, a court might find that a “constructive trust” exists even where there is no actual trust just because the court believes this would be the fair thing to do.

This is the same idea when applied to criminal law.  The defendant does not have to be in actual physical possession of the object if the prosecution can prove that the person both knew about the object and had the “power and intent at a given time to control” it.  A firearm in your bedroom closet or a packet of cocaine on a park bench next to where you are sitting can both be found to be in your constructive possession for purposes of criminal prosecution.

In addition, assuming both have the ability and intent to control the property, two or more people can be found to have joint constructive possession of a single object.  A court could find, for example, that the driver and front-seat passenger both have constructive possession of a firearm in the console between them.

However, merely being near an object or knowing of its location is NOT sufficient to prove possession.  As the D.C. Court of Appeals held in Rivas v. U.S., 783 A.2d 125, 128 (D.C. 2001)(en banc), intent to control the object, as well as the power to control it, is an essential element that the prosecution must prove beyond a reasonable doubt.  Specifically, the court held that “there must be something more in the totality of the circumstances – a word or deed, a relationship or other probative factor – that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the [person] intended to exercise dominion or control over the [object], and was not a mere bystander.”  Another opinion, Guishard v. U.S., 669 A.2d 1306, 1312 (D.C. 1995), has held that the person need to have “intended to guide its destiny.”