Rose v. United States

WAGNER, Associate Judge,

dissenting:

The majority’s determination that it should not decide this case on the merits raises an important question: whether the government’s litigating position relieves this court of its obligation to conduct a de novo review of a motion to suppress evidence, as we have heretofore, applying relevant case precedents. The majority answers this question in the affirmative, albeit under a discretionary standard. The position the court takes is contrary to well established legal principles. The result is that the court not only overturns what, in my opinion, is a correct judgment, it also departs from longstanding principles which have guided our independent review of questions of law in appeals from the denial of motions to suppress.

Apparently agreeing with the propositions that the courts of this jurisdiction will not set aside a conviction on a confession of error alone and that the “public interest prevents shifting the responsibility for reversal from the appellate court to the prosecuting official,” 1 the majority nevertheless declines to do so here based primarily upon two flawed premises. The first is its view that these tenets apply only to confessions of error, but not to “concessions” of error, as the majority characterizes the government’s position. 2 No such distinction can be discerned in the authorities. 3 *539 The second is that this court should ignore a binding case precedent in assessing the validity of appellant’s claim of error because appellee (the government) does not rely upon it, and the public should be bound by its “tactical decision” in that regard. 4 In Part I of this opinion, I explain the fallacies in these arguments and focus on the basic principles which should guide this court to consider the implications of a pertinent Supreme Court case on our disposition of the case in spite of the government’s decision not to rely on it. In Part II, I explain why the judgment of the trial court should be affirmed.

I.

The answer to the fundamental and preliminary question raised by the majority’s disposition and posited at the beginning of this opinion is well settled. In Young, the Supreme Court resolved how the court should treat the government’s confession of error in this way:

The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. See Parlton v. United States, 75 F.2d 772 . The public interest that a result be reached which promotes a well-ordered society is foremost in every criminal proceeding. That interest is entrusted to our consideration and protection as well as to that of the enforcing officers. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.

Young, supra note 1, 315 U.S. at 258-59, 62 S.Ct. at 511-12; accord, Rinaldi v. United States, 434 U.S. 22, 23 , 98 S.Ct. 81, 82 , 54 L.Ed.2d 207 (1977); United States v. Kepner, 843 F.2d 755 , 763 and n. 6 (3rd Cir.1988); Cachoian v. United States, 452 F.2d 548, 550 (5th Cir.1971); Georges v. United States, 262 F.2d 426, 427 (5th Cir.1959); United States ex rel. Marino v. Holton, 227 F.2d 886, 894 (7th Cir.1955), cert. denied, 350 U.S. 1006 , 76 S.Ct. 650 , 100 L.Ed. 868 (1956).

The decision in Rinaldi, supra, reflects the Supreme Court’s continued adherence to the principle that the court has responsibility for making an independent determination of the law in spite of the government’s concession on a particular issue. In Rinaldi, a defendant, who was convicted of violating the laws of both the State of Florida and the United States, claimed that his federal conviction was obtained in violation of established federal policy. The Solicitor General agreed and urged the court to vacate the judgment of the court of appeals and remand to the district court for dismissal of the indictment. 434 U.S. at 23 , 98 S.Ct. at 82 . Nevertheless, the Supreme Court deemed it necessary to conduct an independent evaluation of the circumstances as disclosed by the record before resolving the question. 5 Id.

*540 The courts of this jurisdiction have also refused to set aside a criminal conviction on the basis of a confession of error based on the principle that “public policy prevents shifting responsibility for reversal from the appellate court to the prosecuting official.” Turner v. District of Columbia, 98 A.2d 786, 787 (D.C.1953); accord, Dowell v. United States, 87 A.2d 630, 631 (D.C.1952); Hainsworth v. District of Columbia, 72 A.2d 776, 777 (D.C.1950). In Parlton, supra, cited by the Supreme Court in the passage from Young quoted above, where the Attorney General filed a confession of error to two of appellant’s assignments of error on appeal, the court nevertheless considered the alleged errors, stating that it could not on the strength of that official action alone, “acquit [itself] of [its] responsibility to examine the whole record before setting aside a conviction for crime.” 64 App.D.C. at 170 , 75 F.2d at 773 . These cases support the principle that the court’s resolution of claimed errors must rest on independent determinations that the law mandates a particular result. This court should not overturn the presumptively correct judgment of the trial court unless it is demonstrated that the judgment is erroneous. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C.1982) (trial court’s judgment is presumed valid, and appellant has burden of demonstrating error). If we allow the government’s confession of error to become the pivotal factor, then we abdicate our responsibility to administer justice according to law. It is primarily the difference in our views about these principles which separate me from the majority in this case and prompts this dissent.

Other cases are particularly pertinent to the applicability of the Young principle in cases involving a de novo review of the legal issues. This court has adhered consistently to the proposition that in reviewing claims that the trial court erred in denying a suppression motion, we must make an independent determination of questions of law. See Brown v. United States, 590 A.2d 1008, 1020 (D.C.1991); Giles v. United States, 400 A.2d 1051, 1054 (D.C.1979); Brooks v. United States, 367 A.2d 1297, 1304 (D.C.1976). Our review of the trial court’s legal conclusions in granting or denying a motion to suppress evidence is de novo. Gomez v. United States, 597 A.2d 884, 889 (D.C.1991); Brown, 590 A.2d at 1020 ; Cauthen v. United States, 592 A.2d 1021, 1022 (D.C.1991). On appeal from denial of a motion to suppress, “[essentially, our role is to ensure that the trial court had a substantial basis for concluding that no constitutional violation occurred.” Brown, 590 A.2d at 1020 . These standards do not allow us to ignore applicable precedents which determine the validity of the trial court’s ruling even if overlooked by the parties. Thus, it is well settled that this court may affirm the trial court’s ruling on a suppression, motion for reasons other than those given by the trial court. Alston v. United States, 518 A.2d 439 , 440 n. 2 (D.C.1986); Puree v. United States, 482 A.2d 772, 775 (D.C.1984). Even absent the trial court’s findings of fact and an expression of reasons for denying a motion to suppress, we have recognized our responsibility to be “[t]o determine whether the court’s denial of the motion to suppress is sustainable under any reasonable view of the evidence.” In re B.K.C., 413 A.2d 894, 901 (D.C.1980). In the face of these principles, it would be an abdication of our responsibility to reverse a correct ruling of *541 the trial court on a de novo review where the applicable law clearly supports it.

The cases upon which the majority relies to support its position that basic principles of appellate jurisprudence weigh against a complete review, are analytically distinguishable and inapposite to our de novo review. 6 The cases cited involve primarily unequivocally waived issues by the appealing party, rather than, as here, an omitted exposition by appellee on a particular authority relevant to the issue actually presented. 7 Moreover, none of the cases suggest that appellate courts should ignore the implications of a principle of law or binding case precedent on the final result in reaching a decision. On the contrary, in United States v. Pryce, 291 U.S.App.D.C. 84 , 938 F.2d 1343 (1991), cert denied, — U.S. -, -, 112 S.Ct. 1488 , 1679, 117 L.Ed.2d 629 , 118 L.Ed.2d 396 (1992), cited by the majority in support of its position that the Bryant/Harris 8 analysis should not be undertaken as a matter of discretion, both the concurring and dissenting opinions express the view that the court would not ignore a controlling legal precedent simply because a party failed to invoke it. Pryce, 291 U.S.App.D.C. at 92-93 , 938 F.2d at 1351-52 . 9 The majority also overlooks an important caveat to its premise which is identified in one of the other cases upon which it principally relies. In Carducci v. Regan, 230 U.S.App.D.C. 80, 86 , 714 F.2d 171, 177 (1983), in reviewing a dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), the appellate court declined to consider a due process claim of first impression of major importance to all federal competitive service employees, where appellant did no more than assert a due process violation without discussion and failed to *542 brief, argue or explain the claim. Significantly, the court gave the following caveat to its holding which is applicable here:

Of course not all legal arguments bearing upon the issue in question will always be identified by counsel, and we are not precluded from supplementing the contentions of counsel through our own deliberation and research.

Id. (emphasis added). 10 In this case, we are not called upon to identify or raise “sua sponte” the issue. Appellant has raised the issue, and we need only apply the pertinent legal principles to the case. In my opinion, we can neither fully address appellant’s claim of error nor discharge our obligation to review de novo the question of law pertinent to the disposition of the case without considering the effect of the Supreme Court’s decision in New York v. Harris, supra note 8, on the outcome. For these reasons, and for others appearing later in this opinion, it is my view that we should decide the merits of appellant’s claim of error in the trial court’s decision denying the motion to suppress.

II.

In my opinion, the trial court did not err in denying appellant’s motion to suppress evidence and identification, and reversal of appellant’s two convictions for drug offenses on that ground is not warranted. The majority’s decision rests upon two faulty premises as I see it. The first is that appellant established a legitimate expectation of privacy in the apartment where the police arrested him. On this issue, I disagree with the majority’s application of the law to the facts, and thus, reach a different result. The second, as I have already discussed, is that this court should not apply relevant case precedents in its de novo review of the trial court’s legal conclusion that no constitutional violation occurred because appellee conceded or waived the legal argument on appeal. A de novo review will reveal that the exclusionary rule does not preclude the admission of the appellant’s identification and the evidence seized from him under the principles extracted from Harris, supra. Therefore, I would affirm.

To establish standing in a case such as this, a defendant has the burden of showing that he has a legitimate expectation of privacy in the area where the police found him. Rawlings v. Kentucky, 448 U.S. 98, 104 , 100 S.Ct. 2556, 2561 , 65 L.Ed.2d 633 (1980); Moore v. United States, 468 A.2d 1342, 1345 (D.C.1983); United States v. Booth, 455 A.2d 1351, 1353 (D.C.1983). Unless a defendant meets that burden, he cannot challenge the government’s intrusion into the claimed area of privacy under the Fourth Amendment. Rakas v. Illinois, 439 U.S. 128, 143 , 99 S.Ct. 421, 430 , 58 L.Ed.2d 387 (1978). An expectation of privacy may be subjective, and it is legitimate “ ‘if it is one that society is prepared to recognize as reasonable.’ ” Lewis v. United States, 594 A.2d 542, 544 (D.C.1991) (quoting Minnesota v. Olson, 495 U.S. 91, 95-96 , 110 S.Ct. 1684, 1687-88 , 109 L.Ed.2d 85 (1990)), cert. denied, — U.S. -, 112 S.Ct. 1225 , 117 L.Ed.2d 460 (1992). Factors pertinent to that determination include:

“whether the defendant has a [property or] possessory interest in the thing' seized or the place searched, whether he has the right to exclude others from the place, whether he has exhibited a subjective expectation that it would remain free from governmental invasion, whether he took normal precautions to maintain his privacy and whether he was legitimately on the premises.”

*543 United States v. Robinson, 225 U.S.App. D.C. 282, 288, 698 F.2d 448, 454 (1983) (quoting United States v. Hadel, 649 F.2d 1152, 1155 (5th Cir.1981)); see also Booth, 455 A.2d at 1353 . Further, it is not sufficient that one is simply “legitimately on the premises.” Olson, 495 U.S. at 97 , 110 S.Ct. at 1688 . Considering the facts of this case in light of established criteria for the analysis, in my opinion, appellant failed to make the requisite showing.

According to appellant’s testimony, he was passing his aunt’s apartment with friends when she called to him from the window to ask if he had any cigarettes. Appellant said he went inside the apartment to give her the cigarettes and planned to “come right back out” because his two friends were waiting. Appellant testified that he visited his aunt and uncle once or twice a week to check on them, but that he did not “make it a habit.” According to appellant, he was there only a minute or thirty seconds before the police knocked. Appellant’s uncle, Samuel Rose, testified that he had not expected appellant to visit that day. There was testimony that while appellant and the undercover officer were conversing in the hallway, a woman opened the door to the apartment and asked appellant if he wanted her to leave the door open. Appellant responded, “No, I’m coming in.” Appellant extended the undercover officer an invitation to return to the area or to the apartment for more drugs. He also remarked that he did not know why the person inside asked if he wanted the door left open, since he had a key. 11 Appellant offered no evidence that he was ever an overnight guest, a former tenant, kept clothing in the apartment, contributed financially to the payment of rent, or that he had access or control over the premises except as described here.

Based upon the showing that appellant was visiting a relative’s apartment only momentarily, which he did from time to time, and appellant’s remark to the undercover officer that he had a key, the majority concludes that appellant has demonstrated a sufficient expectation of privacy to challenge the police entry into the apartment. This is a slender thread to which to tie a claim that appellant had a cognizable protected interest in the premises. Guest status, particularly for a visit of a few minutes duration, is insufficient to demonstrate the type of connection with the premises which would establish a reasonable expectation of privacy under applicable precedents. See Prophet v. United States, 602 A.2d 1087, 1091 (D.C.1992).

In reaching the conclusion that appellant established standing in the trial court, the majority relies heavily upon appellant’s statement to the undercover officer at the time of the drug sale that he possessed a key to the apartment where the police located him. From this evidence, the majority draws inferences which are not the only reasonable ones and which were not made by the trier of fact. The circumstances under which appellant obtained any key and the extent to which he was authorized by the lawful occupant of the premises to use it were not in evidence. Furthermore, the statement of the woman apparently in charge of the premises was contrary to appellant’s assertion that he had a key. Nevertheless, the majority infers “that appellant had his aunt’s and uncle’s permission to enter the apartment as he wished, day or night, that he could therefore expect to use it as a place of refuge, and that appellant was in a position to admit or exclude someone from the apartment.” It is not our appellate function to engage in such factfinding by selecting which of the possible inferences to draw. It is the province of the factfinder to draw reasonable inferences from the evidence. Shelton v. United States, 505 A.2d 767, 769 (D.C.1986); Mallory v. United States, 178 A.2d 918, 920 (D.C.1962); Capital Transit Co. v. Bingman, 94 U.S.App.D.C. 75, 76-77 , 212 F.2d 241, 242-43 (1954); Trout v. Lehman, 702 F.2d 1094, 1100 (1983), vacated on other grounds, 465 U.S. 1056 , 104 S.Ct. 1404 , 79 L.Ed.2d 732 (1984). When appellant’s *544 naked assertion that he had a key is examined in the context of the record as it actually exists, without elaboration, and considering the lack of other factors pertinent to the standing inquiry as described in Robinson, supra, any claim that appellant had standing is dispelled. 12

Moreover, appellant took no precautions to maintain any privacy here, which further detracts from his claim. See Robinson, supra, 225 U.S.App.D.C. at 288 , 698 F.2d at 454 . Not only did appellant answer the knock at the door, according to the trial court’s factual findings, but he had invited the undercover officer to return to make another purchase. Whatever expectation of privacy existed to exclude the police or other unwanted visitors from entering the premises, that interest could not extend to secreting appellant from the view of one who knocked at the door, if appellant chose to open it. The Fourth Amendment does not preclude the police from simply knocking at the door of an abode. One who opens the door without compelling those on the other side to identify themselves or without taking other precautions to prevent being seen can have no reasonable expectation that the caller will not see him. See Katz v. United States, 389 U.S. 347, 351 , 88 S.Ct. 507, 511 , 19 L.Ed.2d 576 (1967) (“What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”); United States v. Santana, 427 U.S. 38, 42 , 96 S.Ct. 2406, 2409 , 49 L.Ed.2d 300 (1976); see also United States v. Colyer, 878 F.2d 469, 477 (D.C.Cir.1989). Here, once appellant opened the door, the police could readily observe and identify him as the person described in the lookout broadcast. Thus, they had “more than enough,” in the trial court’s words, to detain or arrest appellant at that point. The officers’ subsequent entry across the threshold of the apartment to seize appellant “contributed nothing to the evidentiary basis for arresting him.” See Bryant, supra note 8, 599 A.2d at 1111 (citing New York v. Harris, supra note 8).

In my view, even assuming appellant had standing, the outcome of . this case is controlled by the principles established by the Supreme Court in Harris. In Harris, the Court held that where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the state’s use of a statement made by the defendant at the police station, despite the fact that he was arrested earlier at his home in violation of Payton. 13 Accepting the trial court’s ruling that the police had probable cause to arrest Harris before they physically entered his home without a warrant or consent, the Supreme Court concluded that Harris’ statement made at the station later was not the product of the unlawful intrusion into Harris’ home; and, therefore, it was admissible. Harris, supra, 495 U.S. at 20 , 110 S.Ct. at 1644 . 14 The Supreme Court reasoned that suppressing the statement taken outside the house

would not serve the purpose of the [exclusionary] rule that made Harris’ in-house arrest illegal. The warrant requirement for an arrest in the home is imposed to protect the home, and anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere, has been excluded, as it *545 should have been; the purpose of the rule has thereby been vindicated.... If we did suppress statements like Harris’, moreover, the incremental deterrent value would be minimal. Given that the police have probable cause to arrest a suspect in Harris’ position, they need not violate Payton in order to interrogate the suspect. It is doubtful therefore that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton. As a result, suppressing a stationhouse statement obtained after a Payton violation will have little effect on the officers’ actions, one way or another.

Id. at 20-21, 110 S.Ct. at 1644 . The Court also noted that “anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere, has been excluded, as it should have been[.]” Id. at 20, 110 S.Ct. at 1644 . 15

In this case, the police seized nothing after entering the apartment, neither the identification nor the drugs. The trial court found that the police had probable cause to arrest appellant before they intruded into the apartment. In that regard, the court stated:

So it seems to me that there is really no serious question in my mind. I know of no real authority that says under those .circumstances the officers standing on the threshold, looking across the threshold, seeing the defendant, could not place him — take him into custody. Either probable cause to arrest, which I think they had then, or reasonable suspicion. I think there is more than reasonable suspicion. They could have taken him even under those circumstances.

Moreover, I seriously question the defendant having any standing about being hauled out of his aunt’s home under those circumstances. Nothing was searched. The entry was not in any way — The move was not part of the officers to search the premises [sic]. No suggestion that the officers looked around. Went in, got the body, and took the body out.... I frankly do not know if any search took place once the officers crossed the threshold.... [B]ut whether frisk or search is immaterial because there was nothing seized there. So there is nothing to suppress, even if an illegal search was held.

In my view, the government is correct that Bryant, which was decided after the hearing on appellant’s suppression motion, is distinguishable. In Bryant, we concluded that the case did not fall within the rule in Harris because in Harris “the discovery of the defendant inside his home contributed nothing to the evidentiary basis for detaining him.” 599 A.2d at 1111. In Bryant, police had already entered the house and begun searching it before they saw appellant and seized him in the basement. Dispositive to our decision to reverse in Bryant was that the broadcast description of Bryant was “too general to justify seizing anyone under Terry. 16 Numerous males in various parts of the city might have matched that description.” Id. at 1112 (citations omitted).

Unlike Bryant, the police here had not yet unlawfully entered the apartment before they had the predicate for appellant’s arrest. Here the description of appellant was detailed enough to provide the basis for a lawful seizure. 17 In ruling that the evidence could be admitted, the trial judge stated:

I credit the testimony of [appellant] as to who answered the door, and it was the defendant who answered that door and was standing there in the door when the officers got there. However, I’m not sure ... that either version makes any difference, because there he is standing at the door, he fits the description that *546 was broadcast. My judgment had a combination of description as well as the physical location more than enough to establish probable cause.

(Emphasis added). Therefore, the unlawful entry yielded nothing, as the trial court stated, except appellant’s person. As in Harris,

[tjhere could be no valid claim ... that Harris was immune from prosecution because his person was the fruit of an illegal arrest.... Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed.... For Fourth Amendment purposes, the legal issue is the same as it would be had the police arrested Harris on his doorstep, illegally entered his home to search for evidence, and later interrogated Harris at the station house.

495 U.S. at 18 , 110 S.Ct. at 1643 (citing United States v. Crews, 445 U.S. 463, 474 , 100 S.Ct. 1244, 1251-52 , 63 L.Ed.2d 537 (1980)). Similarly, in this case, the showup identification and drugs were “seized” from appellant outside his aunt’s apartment. The police did not have to enter to establish articulable suspicion or probable cause, and the entry contributed nothing to the justification for seizure. Therefore, appellant’s identification and the evidence seized from him did not result from the illegal entry into the apartment, and the trial court did not err in denying the motion to suppress. See Harris, 495 U.S. at 20 , 110 S.Ct. at 1644 .

Finally, as discussed above, I cannot agree with the majority that the Bryant/Harris issue was not addressed on appeal. Appellant relied heavily on Bryant to support his claim that the trial court erred in denying the motion to suppress. Without citing Harris, the trial court also based its ruling, at least in part, on an analysis supportable under Harris. The trial court found that the police had probable cause for appellant’s arrest before the officers crossed the threshold of the apartment and that nothing had been seized inside the apartment, as a result of which there was nothing to suppress. In Harris, these same issues were critical to the court’s determination of the suppression motion against Harris. In order for appellant to demonstrate trial court error, he would be required to square his position based on Bryant with the Supreme Court’s ruling in Harris, 18 or distinguish it, particularly in view of the trial court’s factual findings. Therefore, I cannot agree with the majority that appellant was not called upon or has not had a fair opportunity to address the issue. Thus, we do not have before us a case where an issue was not raised, as the majority suggests, but rather one where a controlling authority was not pressed by the appellee in support of the issue.

The predicate factual findings have been made to address the Harris issue, and we have only to apply the law which, in my view, is consistent with the trial court’s legal conclusion. Because it is our duty to undertake a de novo review of the trial court’s ruling on this Fourth Amendment issue, even if the government has decided not to add its voice to the argument raised by the trial court and by appellant, we are not absolved from our responsibility to test the trial court’s legal conclusion against the applicable authorities. Young, supra, 315 U.S. at 258-59, 62 S.Ct. at 511-12.

For the foregoing reasons, I would affirm the decision of the trial court. Therefore, I must dissent from the decision of the court.

. Fletcher v. United States, 49 A.2d 88 (D.C.1946) (citing Young v. United States, 315 U.S. 257 , 62 S.Ct. 510 , 86 L.Ed. 832 (1942)). See ante at 533. The majority points out correctly that in such cases, "this court will decide the appeal based on our independent review of the merits after ‘a thorough examination of the record.’” See Parlton v. United States, 64 App.D.C. 169 , 75 F.2d 772 (1935). The majority apparently agrees with this principle, noting that "if the government altogether throws in the towel by joining in appellant’s request for reversal!)] ... the court has an institutional role as a failsafe against abandonment of the prosecutorial function." See ante at 534. However, the majority seems to restrict this precept to only those cases in which the government as appellee capitulates on all issues raised by appellant, rather than on just some. I perceive no reasoned basis for such a narrow construction of our obligation to review an appellant's claim that the presumptively correct judgment of the trial court is in error.

. In Parts I and II of the majority opinion, the Court takes the position that “[gjiven the government’s ‘concession’ that the evidence must be suppressed if appellant has standing to make the motion, ..., we must reverse the judgments of conviction and remand for a new trial, if the government so desires, without the tangible and identification evidence attributable to the war-rantless entry.” Ante at 532; see also ante at 528, 530 n. 8. This, the majority contends, is not a confession of error, which precedents in this jurisdiction hold warrant independent judicial review. In Part III of the opinion, the court attempts, unsuccessfully in my opinion, to distinguish the two. Ante at 533-535.

. Moreover, the word "concession” is by definition a synonym for "confession.” See Black’s Law Dictionary 296 (6th ed. 1990) (to confess is defined, inter alia, as ”[t]o admit as true; to assent to; to concede”). The fact that the government concedes or confesses error on less than all issues is not a basis for declining to review independently appellant’s claim that the trial court erred in its ruling. See Young, supra note 1 .

. The majority lists five reasons for not reaching the merits issue raised by appellant's claim of error, including the two principal ones mentioned above and others which may be viewed as related to, or arising as a result of, these two. Therefore, I address them together rather than respond to them seriatim.

. The majority observes that the Supreme Court has reversed criminal convictions solely upon the government’s confession of error before and since its decision in Young where it enunciated the rule that "our judicial obligations compel us to examine independently the errors confessed." Young, supra note 1 , 315 U.S. at 258-59 , 62 S.Ct. at 511-12 ; see ante at 545, n. 17. They cite two per curiam opinions, Casey v. United States, 343 U.S. 808 , 72 S.Ct. 999 , 96 L.Ed. 1317 (1952) and Weare v. United States, 276 U.S. 599 , 48 S.Ct. 321 , 72 L.Ed. 724 (1928). It cannot be ascertained from the brief report of the Weare case, which antedated Young , whether the decision rested solely upon a confession of error without the court satisfying itself that reversal was warranted. In Casey , the Supreme Court accepted the government’s confession of error, indicating that to do so would not involve the establishment of precedent and that the controlling claim required resolution of conflicting views of the facts and inferences to be drawn from them. 343 U.S. at 808 , 72 S.Ct. at 999 . The three *540 dissenting justices were of the view that the facts were not in dispute and that the question involved only the reach of the Supreme Court’s decision in a particular case. Id. at 811 , 72 S.Ct. at 1001 . Thus, the dissent urged following the Young rule in its review of the case. Id. at 809-810, 72 S.Ct. at 999-1000 . In my opinion, the decision in Casey cannot be read as a rejection of the Young rule. Moreover, the courts of this jurisdiction follow the Young rule, as the majority concedes today, and as I discuss later in the opinion.

The majority also suggests that we set no new precedent by avoiding the Harris/Bryant analysis. In my view, our published decision in this case not only sets new precedent, it alters prior ones. Particularly, today’s decision establishes new parameters restricting our de novo review of trial court orders denying motions to suppress. Only the en banc court should overrule prior authorities of this court. Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751 , 752 n. 2 (D.C.1983) (en banc).

. For example, in Ramos v. United States, 569 A.2d 158 (D.C.1990), it was the appellant who did not raise or even suggest until oral argument that his Fifth Amendment right not to testify at a post-trial hearing on behalf of his former co-defendant had been violated. Id. at 162 n. 5. Although the court observed that the edict of D.C.App.R. 28(a)(3), (4) and (5) requiring a statement of issues was mandatory, it actually addressed the issue, concluding that there was nothing in the record to suggest that the appellant's Fifth Amendment rights were violated. Id. Similarly, in Underdown v. District of Columbia, 217 A.2d 659 (D.C.1966), observing that appellants had raised other points in their assignment of errors, the court considered them waived, but went on to conclude that the errors alleged were non-prejudicial. Id. at 662 .

. See United States v. Leichtnam, 948 F.2d 370, 375 (7th Cir.1991) (court expressed view that government's best argument against claims of instructional error and constructive amendment to indictment was waived, which government neither briefed nor argued; therefore, court left with merits review without plain error screen); Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.1990) (under Circuit Rule 28(f), argument for reversal not appearing until reply brief not considered); Griffin v. United States, 618 A.2d 114 , 119 n. 11 (D.C.1992) (standing issue not addressed by trial court nor raised on appeal not considered); United States v. Harris, 942 F.2d 1125, 1134-35 (7th Cir.1991) (criminal conduct not referred to in indictment or jury instructions is waived as a basis for conviction); United States v. McNeil, 286 U.S.App.D.C. 26, 30 , 911 F.2d 768, 772 (1990) (where not clear to court that defendants properly invoked speedy trial claim, but government believed they did, court considered claim on merits); United States v. Turner, 898 F.2d 705, 711 (9th Cir.) (government’s failure to contest in accordance with statute, a sentence below the guideline range, waives any challenge to it), cert. denied, 495 U.S. 962 , 110 S.Ct. 2574 , 109 L.Ed.2d 756 (1990); United States v. Woods, 888 F.2d 653, 654 (10th Cir.1989) (failure to exhaust administrative remedies does not preclude judicial review where no objection raised), cert. denied 494 U.S. 1006 , 110 S.Ct. 1301 , 108 L.Ed.2d 478 (1990); Streater v. United States, 478 A.2d 1055 , 1057 n. 3 (D.C.1984) (failure to raise res judicata bar in opposition to motion to reopen direct appeal is too late for consideration after motion granted and appeal being considered on the merits).

. Bryant v. United States, 599 A.2d 1107 (D.C.1991); New York v. Harris, 495 U.S. 14 , 110 S.Ct. 1640 , 109 L.Ed.2d 13 (1990).

. In Pryce , the three judge panel, each of whom wrote a separate opinion, addressed whether the court should undertake a harmless error analysis where the government failed to raise the issue. 291 U.S.App.D.C. at 89 , 938 F.2d at 1348 . Unlike the question involved here, it is the government’s burden to demonstrate that trial court error is harmless. See Arizona v. Fulminante, 499 U.S. 279 , -, 111 S.Ct. 1246, 1257 , 113 L.Ed.2d 302 (1991). Therefore, it is understandable that Judge Williams, writing for the court, expressed concern that the court would be shouldering a burden for which one of the parties was responsible if it undertook the harmless error analysis on its own initiative. Pryce, 291 U.S.App.D.C. at 88 , 938 F.2d at 1347 .

. Also relying on Ford v. United States, 533 A.2d 617, 624 (D.C.1987) (en banc), for its position, the majority quotes the language from Car-ducci, but in Carducci , that language is followed by the caveat quoted above which recognizes that an appellate court is not precluded from applying the law or addressing an issue even if not identified by the parties. In any event, the language in Ford is dicta. In Ford , the court simply declined to be bound in deciding an issue by a prior case in which the issue was not raised or decided. 533 A.2d at 624-25 . In Griffin, supra note 7 , the trial court had not reached the issue involved, and the government had not raised it at all. 618 A.2d at 119 n. 11. Here, the trial court, as recognized by both parties, extensively addressed whether the entry into the apartment was lawful before concluding that, whether it was or not, no evidence had been seized as a result.

. Appellant’s uncle testified at trial that he let appellant into the apartment that day after appellant knocked.

. See also Everroad v. State, 570 N.E.2d 38, 45-46 (Ind.App.1991) (appellants had no standing to challenge seizure of contraband from their mother's house where one only occasionally spent the night and the other was in the process of moving out and stayed there only "off and on.”)

. Payton v. New York, 445 U.S. 573, 576 , 100 S.Ct. 1371, 1374-75 , 63 L.Ed.2d 639 (1980) (“The Fourth Amendment ... prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.")

.The majority appears to be under the impression that if it were to reach the Harris issue, it would have to evaluate the lawfulness of the entry, which this court is required to do in reviewing a suppression motion based on an alleged Fourth Amendment violation. See ante at 534-535. However, under Harris, as previously noted and as discussed infra, whether the entry was lawful is irrelevant if nothing was seized as a result of the alleged violation of the suspect’s Fourth Amendment rights. Even assuming standing and an unlawful entry, Harris is clear that if nothing was seized, there is nothing for the trial court to suppress.

. Harris had also made an incriminating statement inside the house, but it was suppressed by the trial court, and its suppression was not challenged on appeal.

. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

.Officer Davis’ description was for a "black male, medium to dark complexion, blue baseball cap with white patch and his hat turned around backwards, white short sleeve shirt over top of black sweat suit ... and blue pants.”

. Without elaboration, the government in its brief also stated its belief that Bryant is distinguishable from Harris.