Oliver v. United States

FERREN, Associate Judge,

dissenting:

There was neither an emergency, as defined by the case law, nor consent to a war-rantless entry. The trial court accordingly erred in denying the motion to suppress the identity of the baby and the confession ultimately taken from appellant at the police station. Specifically, the baby’s identification was not lawfully before the court because the police violated appellant’s constitutional rights in entering her home to take the baby and, thus, in obtaining the resulting identification. Appellant’s confession also was not lawfully in evidence because it followed a concededly unlawful arrest, without sufficient attenuation of that taint to allow its admissibility. Absent this evidence, there was no basis for conviction, and reversal is therefore required.

I. Emergency Exception to the Warrant Requirement?

A.

I agree with my colleagues that the “probable cause” requirement under the emergency exception to the warrant requirement, as elaborated in United States v. Booth, 455 A.2d 1351, 1355-56 (D.C.1983), and succeeding cases, “reflects the need for solid facts,” ante at 1166, showing “reasonable grounds to believe some kind of emergency existed.” Ante at 1166 (quoting W.R. LaFave, Search and SEIZURE § 6.6(a), at 698 (2d ed. 1987)). On this record, the required “reasonable grounds” based on “solid facts” are lacking. Heart-wrenching as any child-kidnapping obviously is, I cannot say there was an emergency here justifying a warrantless entry into appellant’s home.

The record shows that, on the morning of October 24, 1989, when Detective Jenkins and his investigative team entered appellant’s home, the officers were deemed to have had the five categories of information from the investigative file summarized in the majority opinion. Ante at 1166-67. 1 It is important, however, to add critical facts known to the officers which the majority has recited, ante at 1161-62, but has omitted from its legal discussion, ante at 1166-67, facts that undermine the majority’s finding of probable cause.

Sergeant Denkins of the National Guard (a lunch-hour volunteer at D.C. General Hospital) — who had been watching the babies with her friend, Cornell Benjamin, and a first-time volunteer, “Karen,” just before the baby was found missing — not only “failed to identify appellant as ‘Karen’ ” on October 23, ante at 1166, but also provided testimony for the suppression hearing and at trial that appellant was heavier, shorter, and lighter-complected than “Karen,” ante at 1161, and was not the woman with whom she remembered volunteering. 2 Sergeant Denkins further *1174 testified at trial that when she had visited appellant’s home with the officers a second time an hour later on October 28, she not only had “failed to identify the baby,” ante at 1166, but also had explained to the officers that the baby missing from the nursery had unusual reddish, tapered hair, whereas the baby at appellant’s home had browner, curlier hair. Ante at 1162. For these two reasons — positive, .detailed nonidentifieations both of appellant and of the baby as the putative kidnapper and victim, respectively— it is necessary, to say the least, that for the officers to have had probable cause (ie., reasonable grounds) to believe several hours later, on October 24, that appellant was the kidnapper, they must have had “solid facts” either repudiating these nonidentifications or at least effectively establishing probable cause in their own right, despite the noniden-tifications. Such new, “solid facts” never came to light, leaving the majority with a flawed legal analysis.

B.

For purposes of applying the emergency doctrine, my colleagues agree that the only reason the infant might have been “in danger of bodily harm,” Booth, 455 A.2d at 1355 , was the possibility that he was, indeed, the kidnapping victim. Indeed, everyone agrees that, but for this possibility, the infant appeared to be well cared for and safe on October 23. Appellant’s room was equipped with nursery equipment and baby clothes, and Detective Jenkins, apparently satisfied with the baby’s environment, told appellant that the baby would be returned to her if the infant could not be identified at the hospital. Moreover, confirming the detective’s perception that the baby had not appeared to be in danger, Ms. Braxton, the nursing assistant, testified at trial that the infant “was all right” when the police brought him to the hospital.

This case, therefore, as the majority itself acknowledges, “is unlike the typical emergency exception case where blood at the scene, gunshots, or cries for help will give the police ‘probable cause, based on specific, articulable facts, to believe that immediate entry is necessary to assist someone in danger of bodily harm,’” ante at 1167 (quoting Booth, 455 A.2d at 1355 ). Here, the emergency, if any, turned solely on the question whether the officers had probable cause to believe that the baby in appellant’s home was the victim of a kidnapping. If there was such probable cause, then presumably, by the very fact of a kidnapping — a felony — the baby was in danger; 3 if, however, there was not probable cause, then from all appearances there was no danger, and thus no emergency.

Because the police viewed appellant as the only possible kidnapper (there were no other suspects), the question whether there was probable cause to justify a warrantless, emergency entry into appellant’s home to save the baby, as a victim of kidnapping, was the same as the question whether there was probable cause to arrest appellant for kidnapping. As elaborated below, if there was not probable cause to arrest appellant, then there was not probable cause on the facts here to search her home.

C.

It is theoretically true that the question whether there is probable cause to justify a search of particular property is different from the question whether there is probable cause to arrest the property owner; evidence of drug transactions, for example, at a particular location does not necessarily implicate any particular person. See State v. Caicedo, 135 N.H. 122 , 599 A.2d 895, 897 (1991); see generally United States v. Webster, 750 F.2d 307, 318 (5th Cir.1984) (citing 1 LaFave, Search and SeizuRE § 2.1(b) (1978)); United States v. Melvin, 596 F.2d at 492, 495-96 (1st Cir.1979). It is also true that the police can have probable cause to search particular property for the fruits of a crime, reasonably suspecting the property owner committed the crime, but without having probable cause to arrest the owner; a reliable tip, for example, may warrant the search of particular premises for the instrumentalities of a bomb *1175 ing without supplying enough cause to arrest the property owner unless and until the search reveals illegal firearms. See Melvin, 596 F.2d at 496; see generally W.R. LaFave & J.H. ISRAEL, CRIMINAL PROCEDURE § 3.3, at 184-85 (1984).

This case, however, is different: there was no basis whatsoever, let alone probable cause, for the police to search appellant’s home unless there was probable cause to believe appellant was a kidnapper — and thus subject to arrest as such. From all appearances, there was nothing about the baby in appellant’s home that gave any cause for concern; there was no cause to search appellant’s home, or any other home where a baby was known to live, unless there was probable cause to believe a particular occupant — in this case appellant — had committed a crime that changed the baby’s status from safe to imperilled. In short, all the police information that aroused suspicion came from appellant, not from the baby; there was no ground for search independent of appellant’s suspected status as a criminal. In this particular case, therefore, the two theoretically separate probable cause questions — to search and to arrest — merge; absent the latter, the former fails.

My colleagues cite decisional and treatise law for the unassailable proposition that probable cause to search and probable cause to arrest present theoretically separate questions. But they do not test this general proposition with the facts. They do not— and cannot — demonstrate that two different factual (and legal) analyses can be applied to the search and arrest questions here; their citation of theoretical legal principles is used to justify a finding of probable cause to search while creating a smokescreen to cover their operating assumption, ante at 1168-70, that the police did not have probable cause to arrest.

Before I address the facts showing why there was no probable cause to arrest (and thus no probable cause to search), it is critical to note, as the majority acknowledges, ante at 1168, that the prosecutor himself conceded at the suppression hearing that the police officers did not have probable cause to arrest appellant for kidnapping at the time they took her from her home to the Robbery Branch:

I don’t think probable cause for the arrest existed at that time,[ 4 ] basically because of the fact that there had been the misidentification.[ 5 ] [The officers] had to continue with their investigation. There had to be further questions of Ms. Oliver.

(Emphasis added.) For this reason alone— on the facts here — this court would have a sound basis for concluding there was no emergency; the Supreme Court itself, as the majority acknowledges, ante at 1168, has noted that a prosecutor’s concession of no probable cause “precludes our considering” the record facts to determine whether the probable cause standard was actually satisfied. Arizona v. Hicks, 480 U.S. 321 , 326 n.*, 107 S.Ct. 1149 , 1153 n.*, 94 L.Ed.2d 347 (1987).

But even when looking at the facts, I conclude the prosecutor’s assessment was correct. Contrary to the majority, I cannot say that, immediately before Detective Jenkins and the other officers entered appellant’s home on October 24, they had “probable cause, based on specific, articulable facts,” Booth, 455 A.2d at 1355 , to believe that the baby was indeed the kidnapping victim and, thus, “in danger of bodily harm,” id. It is true that, when the officers returned to appellant’s home on October 24, Detective Jenkins had discovered that Howard University Hospital “employed no doctor named ‘Worth’ and that appellant had not been a patient at the hospital within the past five years.” Ante at 1167. But, contrary to the majority *1176 view, this discovery did not “dramatically change[ ] the whole equation.” Ante at 1167. The majority implicitly acknowledges this much: despite the information previously received from Ms. Washington and Ms. Hawkins, ante at 1161 & n. 3, 1166-67, indicating that appellant had lied about the baby, Sergeant Denkins’ very specific, unequivocal statements that appellant was not “Karen,” the presumed kidnapper, and that appellant’s baby was not the one taken from the hospital, were affirmative nonidentifications that effectively negated a finding of probable cause to search (or arrest). I cannot agree that the information learned from Howard University Hospital on October 24, while adding to suspicions about appellant, was enough — to the point of creating probable cause — to overcome Sergeant Denkins’ express nonidentifications exonerating appellant the day before.

In the first place, this added information did not cause the “collapse of appellant’s story.” Ante at 1167. Rather, as the majority itself acknowledges two sentences later, “[t]he new information seemed to confirm the strange pattern of conduct reported by Ms. Washington and Ms. Hawkins,” ante at 1167 (emphasis added); there was merely confirmation of what the police already knew from two other sources: appellant was a liar. The majority adds “[i]t would seem remarkable that a new mother would lie about where she gave birth.” Ante at 1167. And yet the majority itself reports that appellant had earlier lied to Ms. Hawkins about the hospital where she had given birth and abandoned a baby. Ante at 1161 n. 3. Again, the October 24 lie was a lie no more remarkable than appellant’s established pattern of lying. Sergeant Denkins had testified, however, that (despite such lies) appellant was not “Karen” and appellant’s baby was not the one abducted. A cumulative he did not erase the force of that exoneration.

Next, it may be true that “Sergeant Den-kins had no reason whatever to think at the time of her earlier acquaintance with either Karen or the baby that she would be cahed upon to make a positive identification of either of them at a later time.” Ante at 1167. But even if that were true, the fact is, at the “later time” she was called upon to speak, Sergeant Denkins gave very specific noniden-tifieations. She may not have known she would be called on to identify “Karen” and the baby, but, despite that lack of awareness, she apparently did know, to a detailed certainty, who they were not.

Finally, the majority adds that, “given the shifting and uncertain personnel in the nursery, Karen was not the only individual who might have absconded with the infant.” Ante at 1167. That is a pure makeweight. My colleagues are — with no discernible authority — taking judicial notice of a fact (“shifting and uncertain personnel”) that the government has not “noticed” in presenting its arguments at trial or on appeal. To the contrary, the premise under which Detective Jenkins and his fellow officers — and later the prosecutor — were operating was that “Karen” was the kidnapper, and that there would not be a basis for entering appellant’s home if appellant, in fact, were not “Karen.”

Respectfully, I believe my colleagues find an emergency based on their understandable concern for finding a kidnapped baby, not because there were “solid facts” giving the police “probable cause” (ie., “reasonable grounds”) to believe that the baby with appellant was a particular kidnap victim. As it turned out, of course, the baby was the kidnap victim, and this reality causes us all to say “Thank God he’s safe.” But, at least from my understanding of the Fourth Amendment, this reality has caused my colleagues, in effect, to say that this is the kind of case in which the emergency exception should be loosened or bent or reshaped— whatever it takes — to save a helpless stolen baby. But of course the Supreme Court repeatedly has warned that the seriousness of the offense under investigation cannot itself be a factor creating an emergency justifying a warrantless search. See Thompson v. Louisiana, 469 U.S. 17, 21 , 105 S.Ct. 409, 411 , 83 L.Ed.2d 246 (1984); Welsh v. Wisconsin, 466 U.S. 740, 753 , 104 S.Ct. 2091, 2099 , 80 L.Ed.2d 732 (1984); Payton v. New York, 445 U.S. 573, 583-90 , 100 S.Ct. 1371, 1378-82 , 63 L.Ed.2d 639 (1980); Mincey v. Arizona, 437 U.S. 385, 394 , 98 S.Ct. 2408, 2414 , 57 L.Ed.2d 290 (1978). By sustaining applica *1177 tion of the emergency doctrine for the war-rantless search in this case, my. colleagues are using the seriousness of a child-kidnapping to justify an otherwise impermissible entry into a private residence. This we cannot properly do. The Supreme Court has explained:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals.... We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.

McDonald v. United States, 335 U.S. 451, 455-56 , 69 S.Ct. 191, 193 , 93 L.Ed. 153 (1948).

The police, with their reasonable suspicions, were not without resources to check out the situation further, consistent with maintaining the child’s safety and with the dictates of the Constitution. They could have tried, more effectively than they did, to obtain a third consensual interview with appellant. See infra Part II. If that failed, they could have attempted to obtain the assistance of appellant’s brother in persuading appellant to tell the truth, to the point where the police had probable cause to believe that appellant was a kidnapper — or that she was not. To make this third approach to appellant and her brother more effective, the police could have arranged for visits by concerned hospital personnel, who had means of identifying the kidnapped baby. The police could have maintained a presence outside the home, as a deterrent to harm to the child inside. Other strategies also might have proved profitable.

There was always a risk, of course, that harm could come to the child as long as he was within appellant’s grasp and no one else’s. But from the perspective of the law— indeed, the Constitution — this country has long subscribed to the principle that risks of harm inside a closed, private residence, whatever those risks may be, are tolerable when compared with the intolerable, warrantless invasions likely to occur unless “emergencies” excusing the warrant requirement are limited to those based at least on “solid facts,” ante at 1166, giving rise to probable cause. In this case, there may have been reasonable suspicion, within the meaning of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and succeeding cases; but because, on the facts here, there was no probable cause to arrest appellant for kidnapping, as the government concedes, there was no “probable cause,” — i.e., there were no reasonable grounds to believe — “based on specific, articulable facts[ ] ... that immediate entry [was] necessary to assist someone in danger of bodily harm inside the premises.” Booth, 455 A.2d at 1355-56 . The police violated appellant’s Fourth Amendment rights. 6

II. Alleged Consent to the WARRANTLESS ENTRY

Because the government, alternatively, has argued that appellant consented to police entry on October 24 — which, if true, would obviate the need for a warrant (or for any discussion of the emergency exception) — I turn to that issue.

By justifying the warrantless entry under the emergency exception, my colleagues do not need to address the trial court’s finding of a consensual police entry. It is reasonable to infer, however, that by ignoring the trial court’s ruling, after remand, on an issue that logically precedes consideration of a noncon-sensual, warrantless entry, my colleagues *1178 manifest, at the very least, their skepticism about the trial court’s ruling. In having to address the issue, I conclude, as a matter of law, that the trial court’s crucial findings were clearly erroneous and that there was no consensual entry.

A.

On April 22,1994, we remanded the record to the trial court for supplemental findings of fact and conclusions of law as to “whether the police had received consent to enter appellant’s home on October 24,1989, and, if so, whether this consent extended to permit entry into appellant’s bedroom in the basement.” Specifically, we asked the trial court to “make findings of fact and conclusions of law, supported by evidence in the record,” clarifying:

(1) whether anyone consented to the initial police entry into the house; and, if so, (2) who gave the consent; whether this person had authority to consent to the entry into the house; whether this consent, if given, also extended to entry into appellant’s bedroom in the basement; and (3) in any event, whether consent to enter the house and appellant’s bedroom could be imputed to appellant, including whether appellant herself consented to police entry into the house or into her bedroom.

On May 6, 1994, the trial court made the following supplemental findings of fact and conclusions and incorporated them in the record:

At about 11:00 a.m. October 24th, Detective Rufus Jenkins and other police officers visited Defendant’s home_ The officers were met at the door by Defendant’s brother, Lamard Oliver. The officers stated their desire to speak with Defendant. Mr. Oliver then called Defendant, apparently to inform her of the officers’ presence after which Defendant inquired as to whether she should get dressed. Mr. Oliver then, with police officers following, proceeded down a stairwell to the basement of the house which apparently consisted of one large room.

* * * * * *

By proceeding to the basement of the house in apparent response to the police officers’ expressed desire to speak with Defendant and continuing to the basement with the officers following, Mr. Oliver, thereby expressed his willingness to accommodate the officers by leading them to the basement for the purpose of speaking with his sister. By so doing, Mr. Oliver consented to entry into the house, including the basement area where Defendant was then located.

As a resident of the house, .Mr. Oliver had apparent authority to admit others to areas not exclusively assigned to someone else. The area of the basement where Defendant was sleeping had apparently not been partitioned nor is there any indication that the basement in its entirety had been designated for Defendant’s exclusive use.... Moreover the court finds that Defendant herself, though annoyed with the officers’ persistence, nevertheless expressed her willingness to accommodate their desire to enter the basement to converse with her by simply asking if she should get dressed when she was called by her brother.

The court concludes that both Defendant and her brother consented to entry into the basement and that both had apparent authority to grant such consent

We then gave the parties twenty days to file, simultaneously, memoranda on the trial court’s supplemental findings and conclusions. In appellant’s memorandum in response to the trial court’s findings, she contends that (1) the trial court’s factual findings are not supported by evidence in the record, and that (2) the trial court failed to hold the government to its burden of proving “clear and positive testimony” of consent that is “unequivocal and specific,” Judd v. United States, 89 U.S.App.D.C. 64, 66 , 190 F.2d 649, 651 (1951), because (a) Mr. Oliver’s actions cannot justify entry under the doctrine of implied consent, and (b) Mr. Oliver lacked both actual and apparent authority to consent to entry of appellant’s bedroom. 7

*1179 I agree with appellant that the government failed to meet its burden of proving, with “clear and positive testimony,” id., that Mr. Oliver and/or appellant volunteered consent to police entry, free from “duress or coercion, express or implied.” Schneckloth v. Bustamonte, 412 U.S. 218, 248 , 93 S.Ct. 2041, 2058 , 36 L.Ed.2d 854 (1973).

B.

I summarize, first, the law applicable when the government contends a person consented to a warrantless entry of the home. “It is axiomatic that the ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ” Welsh, 466 U.S. at 748 , 104 S.Ct. at 2096 (quoting United States v. United States District Court, 407 U.S. 297, 313 , 92 S.Ct. 2125, 2134 , 32 L.Ed.2d 752 (1972)). Because the warrant requirement protects the public from needless intrusions into the home, “[i]t is a ‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton, 445 U.S. at 586 , 100 S.Ct. at 1380 . In sum, “the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id at 590, 100 S.Ct. at 1382 .

An individual can waive the warrant requirement by consenting to a search and seizure. See Schneckloth, 412 U.S. at 219 , 93 S.Ct. at 2043 ; Judd, 89 U.S.App.D.C. at 65-66 , 190 F.2d at 650-51 . The government, however, must prove consent with “clear and positive testimony.” Judd, 89 U.S.App.D.C. at 66 , 190 F.2d at 651 . Furthermore, consent must be “voluntarily given, and not the result of duress or coercion, egress or implied.” Schneckloth, 412 U.S. at 248 , 93 S.Ct. at 2058 . Because “[i]ntimidation and duress are almost always implicit in such situations” where officers display their badges and declare their intentions to search, Judd, 89 U.S.App.D.C. at 66 , 190 F.2d at 651 , the government — to establish consent — must show more than the mere “acquiescence to a claim of lawful authority,” Bumper v. North Carolina, 391 U.S. 543, 549 , 88 S.Ct. 1788, 1792 , 20 L.Ed.2d 797 (1968); it must clearly establish the absence of intimidation and duress. See Schneckloth, 412 U.S. at 248, 93 S.Ct. at 2058 ; Judd, 89 U.S.App.D.C. at 66 , 190 F.2d at 651 . 8

*1180 This court treats findings of consent as factual determinations, reversible only if clearly erroneous. See In re J.M., 619 A.2d 497, 500-01 (D.C.1992). A trial “court’s findings are clearly erroneous ‘to the extent that they fail to recognize [important] incidents and reject or fail to draw the inferences which we have found inescapable from the record.’” Griffin v. City of Omaha, 785 F.2d 620, 628 (8th Cir.1986) (quoting Alexander v. National Farmers Organization, 687 F.2d 1173, 1203 (8th Cir.1982), cert. denied, 461 U.S. 937 , 103 S.Ct. 2108 , 77 L.Ed.2d 313 (1983)); see Biggs v. Stewart, 361 A.2d 159, 163 (D.C.1976) (trial court’s findings are clearly erroneous when not “sufficiently comprehensive and pertinent to the issues as to provide a basis for the decision” or when not supported by evidence in record).

With these principles of law in mind, I turn to the evidence.

C.

As to the initial police entry into the home, I conclude — as elaborated below — that the trial court’s finding of consent is clearly erroneous for the following reasons: (1) The trial court failed to make findings as to what precisely occurred at the threshold of the house, despite remand of the record with clear instructions to do so. This omission necessarily reflects the government’s failure to prove, with “clear and positive testimony,” Mr. Oliver’s or appellant’s consent, free from “duress or coercion, express or implied.” (2) Even if the trial court had fully credited Detective Jenkins’ testimony that Mr. Oliver had admitted the officers to the house (which the court did not), that testimony could not support a finding of implied consent because (a) Mr. Oliver did not know that the police officers were outside before he opened the door, (b) the officers never requested permission to enter the home, and (e) Mr. Oliver’s merely walking away from the front door to speak to appellant, his sister, in another part of the house — apparently without any body gesture inviting entry — did not imply permission for the police to enter, rather than wait while Mr. Oliver consulted with appellant.

Detective Jenkins was the government’s only witness at the suppression hearing who testified regarding the officers’ initial entry into appellant’s home on October 24. In addition, a defense witness, appellant’s brother, Lamard Oliver, testified about the officers’ entry. Through the testimony of these two witnesses, therefore, the government had the burden of showing that the officers crossed the threshold of the home with voluntary consent rather than the mere “acquiescence to a claim of lawful authority.” Bumper, 391 U.S. at 549 , 88 S.Ct. at 1792 . I cannot conclude that the government met its burden.

Both Detective Jenkins and Mr. Oliver agreed that Mr. Oliver answered the door in response to the officers’ knock. After this point, however, their descriptions of what occurred differed significantly. Detective Jenkins described how the officers entered appellant’s home as follows: “We told him that we were police officers, proper identification was shown and told him that we wanted to talk with Ms. Lisa Oliver.... [Mr. Oliver] admitted us in the house to come in. He stepped back from the door and admitted us into the hallway foyer at the home there.”

Mr. Oliver described the same event differently: “They asked was Lisa home. I said, yes. And I said, ‘I’ll get her for you’ and I went to get her. When I turned around, they was — they came on in the house.” When cross-examined, Mr. Oliver denied that *1181 he had consented to the officers’ entry by admitting them into the foyer:

Q: But you let them in, didn’t you?

A: No, I didn’t let them in. I opened the door for them.

Q: You opened the door for them?

A: Yes.

Q: All right. Then they walked in?

A: I answered the door, they walked in on their own.

Q: They didn’t — did they have to brush by you physically?

A: No. I left to go get Lisa and when I came back, they was already in.

Q: Well, when you say you opened the door for them, sir, did you open the door, while they were—

A: No. If you knock on my door and I open the door to see who it is—

Q: Isn’t it a fact that at no time did you tell them to stay outside?

A: I didn’t tell them to stay outside.

Q: Isn’t it a fact that you said, “Okay, Officers, come in, I’ll get my sister”, because you didn’t think anything was wrong?

A: No, I didn’t. I don’t let the police in my house like that. Nothing.

Neither Detective Jenkins’ nor Mr. Oliver’s account of the initial entry on October 24 addressed who opened the screen door (the existence of which no one disputed). When discussing the entries that occurred on October 23, however, Mr. Oliver explained that, although he had left the front door open, the screen door was closed but unlatched.

Unfortunately, the trial court failed to make findings regarding the critical issue: what precisely occurred on October 24 at the threshold of the house. In fact, the trial court did not address how the officers entered the house. Instead, the tidal court skipped to the point where the officers followed Mr. Oliver down the basement stairs:

The officers stated their desire to speak with Defendant. Mr. Oliver then called Defendant, apparently to inform her of the officers’ presence after which Defendant inquired as to whether she should get dressed. Mr. Oliver then, with police officers following, proceeded down a stairwell to the basement which apparently consisted of one room.

How the officers happened to enter the house is clearly material to any finding of consent. Although usually a trial court’s failure to make findings on a material issue requires remand, see Tauber v. District of Columbia, 511 A.2d 23, 28 (D.C.1986), there comes a point where the failure to make findings reflects the government’s inability to prove its case, as opposed to the trial court’s mere oversight in addressing the issue. Because the government did not explore the consent issue at the suppression hearing, and because we have already remanded the record specifically for findings of consent, and, further, because the government has not moved the trial court to clarify its findings before this court considers them after the remand, I believe we have reached that failure-of-proof point here. The trial court’s failure to address the details of the officers’ entry reflects the government’s failure to present “clear and positive testimony” of voluntary consent, Judd, 89 U.S.App.D.C. at 66 , 190 F.2d at 651 , “not the result of duress or coercion, express or implied,” Schneckloth, 412 U.S. at 248 , 93 S.Ct. at 2058 .

Indeed, even if the trial court had completely credited Detective Jenkins’ testimony regarding the initial entry, I do not believe that this testimony could support a finding of voluntary consent. Detective Jenkins testified that Mr. Oliver “admitted us in the house to come in. He stepped back from the door and admitted us into the hallway foyer at the home there.” Detective Jenkins never testified that Mr. Oliver opened the screen door or otherwise gestured in a manner that implied he was consenting to the officers’ entry. Furthermore, nothing in Detective Jenkins’ testimony suggested that the officers ever asked Mr. Oliver to enter the home. Instead, Detective Jenkins’ conclusion that Mr. Oliver “admitted” the officers into the foyer was based solely on the fact that Mr. Oliver had stepped back from the door and had not objected once the officers had come inside.

*1182 Certainly, “consent to enter a house may be implied as well as expressed.” Terrell v. United States, 361 A.2d 207, 210 (D.C.), cert. denied, 429 U.S. 984 , 97 S.Ct. 501 , 50 L.Ed.2d 594 (1976) (quoting United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir.1975)). Indeed, several courts, including this court, have concluded that opening a door and stepping back can constitute an implied invitation to enter. See e.g., id. (consent implied where officer knocked on door and identified himself as police officer, and codefendant opened door and walked back into room without saying anything); United States v. Griffin, 530 F.2d 739 (7th Cir.1976) (consent implied where defendant slammed door on officers after first time they knocked but then opened door and stepped back in response to second time they knocked);. Turbyfill, 525 F.2d at 57 (consent implied where officers identified themselves, occupant opened door a few feet and stepped back, and officers opened unlocked screen door and entered house); Bobbins v. MacKenzie, 364 F.2d 45, 48 (1st Cir.), cert. denied, 385 U.S. 913 , 87 S.Ct. 215 , 17 L.Ed.2d 140 (1966) (consent implied where officer identified himself and his desire to talk with defendant, and defendant responded, “Just a minute,” unlocked and opened door, and then walked back inside room).

Unlike this case, however, these decisions concerned situations where the person opening the door already knew that police officers were outside. Thus, the action of opening the door and stepping back clearly showed an intent to admit (as opposed to merely a desire to see) the person on the other side. As the United States Court of Appeals for the First Circuit has explained:

When a householder, knowing the identity and purpose of his [or her] caller, opens his [or her] door and turns back inside, he [or she] expresses by his [or her] actions as adequate a consent to entry as he [or she] would by a verbal invitation. To be distinguished are cases where a householder opens a door not knowing who is there and finds himself faced with armed authority. In such cases the act of opening the door may merely be to see who is there, and turning back may only be retreating. But a police[ officer] who identifies himself [or herself] and his [or her] purpose from the other side of a closed door has every reason to assume that the act of unlocking and opening the door, without more, is a consent to talk, and that the walking back into the room is an implied invitation to conduct the talking inside.

Robbins, 364 F.2d at 48 (emphasis added).

Furthermore, nothing in Detective Jenkins’ testimony suggested that the officers ever asked Mr. Oliver if they could enter the home. Both Detective Jenkins and Mr. Oliver testified that, when Mr. Oliver answered the door, the police merely told him that they wanted to speak with appellant. As the United States Court of Appeals for the Ninth Circuit has noted:

We do not expect others to walk in to our homes, even if the door is open, without first requesting permission to enter. That the police would so enter, without request, creates an impression of authority to do so.

United States v. Shaibu, 920 F.2d 1423, 1427 (9th Cir.1990).

The facts of appellant’s case are quite similar to the facts of Shaibu . In that case, four police officers buzzed Shaibu’s apartment from the security gate. Over the intercom, Shaibu asked who was there. Although he received no response, he sounded the gate release, and the officers entered the apartment complex. As the officers were walking down the hall towards Shaibu’s apartment, Shaibu opened his apartment door and went out to meet them. One of the officers asked Shaibu whether the suspect for whom they were looking was in his apartment. Shaibu turned and walked into the apartment, leaving the door open, and the officers followed him inside. The Ninth Circuit declined to find that Shaibu had given the officers implied permission to enter the apartment, because the police had never requested permission to enter. The court explained:

It is one thing to infer consent from actions responding to a police request. It is quite another to sanction the police walking in to a person’s home without stopping at the door to ask permission.

* * ;|: * * *

*1183 We hold that in the absence of a specific request by police for permission to enter a home, a defendant’s failure to object to such entry is not sufficient to establish free and voluntary consent. We will not infer both the request and the consent.

Id., at 1427-28 ; see Howard v. Pung, 862 F.2d 1348, 1352 (8th Cir.1988) (act of stepping back while opening door not sufficient evidence of tacit consent), cert. denied, 492 U.S. 920 , 109 S.Ct. 3247 , 106 L.Ed.2d 593 (1989); State v. Clark, 844 S.W.2d 597, 599 (Tenn.1992) (no inference of consent where defendant stepped back after opening door, and officers entered without invitation). But see United States v. Garcia, 997 F.2d 1273, 1281 (9th Cir.1993) (inference of consent where trial court found that defendant interpreted officers’ request to talk as request to enter, and defendant responded affirmatively to request and stepped back to clear way for officers’ entry). Likewise, I believe that when the police do not specifically ask to enter a home, the resident’s unequivocal, voluntary consent cannot be inferred merely from failure to object to the entry, at least when no body language indicates an invitation to enter.

D.

The trial court’s second major finding, that Mr. Oliver consented to the officers’ entry into the basement, is also clearly erroneous. Once the trial court credited appellant’s and Mr. Oliver’s testimony that appellant “inquired as to whether she should get dressed,” rather than crediting Detective Jenkins’ testimony that appellant had invited the officers to “come on down,” the court could not reasonably infer, without more, that Mr. Oliver voluntarily had consented to leading the male police officers into his sister’s bedroom, knowing that she was not properly dressed. As I concluded with respect to the officer’s initial entry into the house, Mr. Oliver’s failure to object when the police followed him down the basement steps, without asking his permission to do so, cannot reasonably be the basis for inferring consent, rather than submission to the officers’ authority.

Consider the record evidence. Once again, the trial court was faced with the conflicting testimony of Detective Jenkins and Mr. Oliver. In addition, appellant testified regarding the entry into her bedroom in the basement. All three witnesses agreed that Mr. Oliver called down to appellant to tell her that the police were there. Their testimony differed as to how appellant responded, however.

Detective Jenkins testified that appellant responded, “Have them come down.” He explained that Mi*. Oliver then told the officers, “Come on down,” and they all went downstairs. Mr. Oliver, on the other hand, testified that appellant responded, “Should I put on clothes?” Mr. Oliver explained that when he walked down the stairs, two or three officers followed him. Appellant testified that when her brother came to the basement door and told her that the police were there, she told him that she was going to “put something on” and would come up to talk with them.

Although the trial judge did not specify which witness he credited, it is clear from the findings that he credited appellant’s and Mr. Oliver’s testimony that appellant asked whether she should get dressed; the judge did not credit Detective Jenkins’ testimony that appellant and Mr. Oliver invited the officers to “come on down.” The trial court’s findings state:

Mr. Oliver then called Defendant, apparently to inform her of the officers’ presence after which Defendant inquired as to whether she should get dressed. Mr. Oliver then, with police officers following, proceeded down a stairwell to the basement of the house....

A finding of consent clearly would be warranted if the trial court had credited Detective Jenkins’ testimony. Once the trial court credited Mr. Oliver’s testimony that appellant “inquired as to whether she should get dressed,” however, it follows that neither appellant nor her brother could be said to have voluntarily consented to the officers’ entry into the basement. And yet the trial court concluded that both appellant and her brother consented to the entry:

*1184 By proceeding to the basement of the house in apparent response to the police officers’ expressed desire to speak with Defendant and continuing to the basement with the officers following, Mr. Oliver thereby expressed his willingness to accommodate the officers by leading them to the basement for the purpose of speaking with his sister. By so doing, Mr. Oliver consented to entry into the house, including the basement area where Defendant was then located.... Moreover the court finds that Defendant herself, though annoyed with the officers’ persistence, nevertheless expressed her willingness to accommodate their desire to enter the basement to converse with her by simply asking if she should get dressed when she was called by her brother.

Absent a request by the officers to enter, voluntary consent cannot be inferred merely from one’s failure to object to the entry or, in this case, from walking away from the front door toward the basement to talk with appellant downstairs. More specifically, one cannot infer on this record that Mr. Oliver voluntarily consented to lead two or three male police officers into his sister’s bedroom knowing she was not properly dressed. The only logical inference from these facts is that Mr. Oliver submitted to the officers’ authority by failing to object when the officers followed him down the basement steps. Submission to authority cannot support a finding of consent. See Schneckloth, 412 U.S. at 233 , 93 S.Ct. at 2050 ; Bumper, 391 U.S. at 548-49 , 88 S.Ct. at 1791-92 .

E.

Finally, the trial court’s finding that appellant herself consented to the officers’ entry into the basement by “simply asking if she should get dressed when she was called by her brother” is also clearly erroneous. It is, in fact, a virtual non-sequitur; someone who is asked for an interview does not routinely invite the interviewer into her room while undressed. All that can reasonably be inferred from appellant’s inquiry is that she was not fully dressed. If anything else were inferable, it would be that appellant either would come upstairs to meet with the officers, after getting dressed, or would not consent to anyone’s entry into the basement until she had had an opportunity to dress. See United States v. Wenzel, 485 F.Supp. 481, 483 (D.Minn.1980) (“Most persons when not fully clothed do not explicitly or impliedly consent to another person’s entry.”); Walls v. Commonwealth, 2 Va.App. 639 , 347 S.E.2d 175, 179 (1986) (same). 9

* * * H* * *

Adopting the reasoning of Shaibu , I conclude it is inescapable from the record that the government failed to prove Mr. Oliver’s voluntary consent to the initial entry into the home by clear and positive testimony. The trial court’s finding that Mr. Oliver proceeded to the basement with the officers following, in the absence of additional factual findings regarding the basis for actual entry into the home, does not support the trial court’s finding that Mr. Oliver consented to the initial entry. Furthermore, given the trial court’s finding that appellant “inquired as to whether she should get dressed” rather than inviting the officers to “come on down,” I also conclude it is “inescapable from the record” that neither appellant nor Mr. Oliver voluntarily consented to the officers’ entry of the basement. The trial court’s findings of consent, therefore, are clearly erroneous, and the warrantless entries into the house and bedroom cannot be justified on that ground.

III.

Ag a consequence of the Fourth Amendment violation here — no emergency, no consent, no warrant — this court should order the trial court to suppress the resulting identification of the baby as the kidnapped infant. See Wong Sun v. United States, 371 U.S. 471, 486 , 83 S.Ct. 407, 416 , 9 L.Ed.2d 441 (1963). 10 We also should order the trial court *1185 to suppress appellant’s confession at the police station. See id. The government concedes that appellant was unlawfully arrested, absent probable cause at the time to believe she was the kidnapper. Her subsequent confession, after learning that the (unlawfully seized) baby had been identified — and after having conversations with her boyfriend and with her brother, Mr. Oliver — was not the result of sufficient attenuation of the taint from the warrantless entry, the unlawful arrest, and the seizure of the baby to justify admissibility of the confession. See Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975). Consequently, I would grant the motion to suppress, reverse appellant’s convictions, and remand for further proceedings consistent with this opinion.

. Contrary to appellant’s contention, I agree with the majority that, at the time Detective Jenkins and his fellow officers entered appellant’s home on October 24, they were, as a matter of law, deemed privy to the so-called Hawkins information because it was part of the police investigative file. Ante at 1161 & n. 3, 1166, 1167 n. 14. See In re 638 A.2d 1123 , 1128-33 (D.C. 1993).

. Sergeant Denkins testified at trial. Her statements were presented at the suppression hearing through the testimony of Detective Jenkins.

. I agree with the majority’s view that cases from "[o]ther jurisdictions have reflected the[] unique qualities of kidnapping in holding that kidnapping may create exigent or emergency circumstances, even without direct evidence of a threat of bodily harm to a victim." Ante at 1167.

. It is interesting to note that the prosecutor conceded there was no probable cause even after the police officers had confronted appellant in her home on October 24 with the information that Howard University Hospital had no Dr. Worth and showed no record of her delivery the previous day, and appellant had failed to respond to one more apparent lie, instead asking the police to leave her alone.

. The prosecutor was referring to Sergeant Den-kins' observations on October 23 that appellant was not "Karen,” who had been in the nursery just before the kidnapping, and that appellant’s baby was not the infant who had been taken from the hospital.

. Having concluded that Booth's "probable cause” requirement is not met here, I need not consider the other two Booth criteria the police officers had to satisfy; failure to meet any of the three precludes a warrantless entry under the emergency exception. See Booth, 455 A.2d at 1355-56 .

. In its supplemental memorandum, the govern-merit asserts that “because appellant has never *1179 challenged the legality of the officers’ entry into the basement, she has doubly forfeited this issue — in the trial court and in this Court.” I disagree.

Appellant moved to suppress her confession and the identification of the baby as the fruits of an unlawful search and seizure. Once appellant had shown that the entry and seizure occurred without a warrant, however, the burden of proving an exception to the warrant requirement shifted to the government. During the suppression hearing, the government argued that the “emergency exception” justified the warrantless entry and seizure of the baby. Because the trial court agreed with the government’s argument, the court did not consider whether other exceptions to the warrant requirement, such as consent to entry, also applied.

On appeal, the government realized that we might not agree with the trial court that the emergency exception justified the warrantless entry and seizure. The government accordingly argued that, if we had doubts about application of the emergency exception, the government should be allowed to argue that consent justified the entry and seizure. We remanded the record at the government’s suggestion for findings ás to consent.

The burden of proving that free and voluntary consent authorized the initial entry always has remained with the government. See Schneckloth v. Bustanionte, 412 U.S. 218, 221-22, 93 S.Ct. 2041, 2044-45 , 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788, 1791 , 20 L.Ed.2d 797 (1968). If there is any fault in the failure to present the consent issue until after the remand, it is the government’s, for failure to be sure the trial court ruled on consent, in the alternative, at the suppression hearing.

. From time to time, this court has relied on Judd’s "clear and positive testimony” requirement as a correct statement of the law, remaining intact after Schneckloth. See Martin v. United States, 567 A.2d 896, 905 (D.C.1989); Welch v. United States, 466 A.2d 829, 844 (D.C.1983). Judd’s additional requirement that consent be “unequivocal and specific,” however, has been updated by Schneckloth’s formulation that, based on examination of “all the circumstances,” consent will be found if "voluntarily given, and not the result of duress or coercion, express or implied.” Schneckloth, 412 U.S. at 248-49 , 93 S.Ct. at 2058-59 ; see In re J.M., 619 A.2d 497, 500 (D.C.1992) (en banc). Thus, I apply the following standard drawn from Judd and Schneckloth : to prove consent, the government must provide "clear and positive testimony,” *1180 Judd , 89 U.S.App. at 66, 190 F.2d at 651 , such that, taking “all the circumstances" into consideration, the court finds consent was "voluntarily given, and not the result of duress or coercion, express or implied,” Schneckloth, 412 U.S. at 248-49 , 93 S.Ct. at 2058-59 . Although it may appear to be a tautology, this court's shorthand for this formulation is "voluntary consent." This standard is consistent with, and reflects the means by which, the "government bears the burden of proving voluntary consent by a preponderance of the evidence." Oliver v. United States, 618 A.2d 705, 709 (D.C.1993) (citing Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed,2d 797 (1968), and United States v. Matlock, 415 U.S. 164 , 178 n. 14, 94 S.Ct. 988 , 996 n. 14, 39 L.Ed.2d 242 (1974)). Any less clear proof would not sufficiently demonstrate that the suspect had not merely submitted to a show of authority, which of course "does not satisfy the government’s burden of proof.” Id. See also Burton v. United States, 657 A.2d 741 ,-n. 5 (D.C. Dec. 12, 1994) (Schwelb, J., dissenting).

. Because I conclude that the trial court’s consent findings are clearly erroneous, it is not necessary to address whether Mr. Oliver had apparent or implied actual authority to consent to the officers' entry of appellant’s bedroom in the basement.

. The government's argument that appellant lapks standing to challenge the seizure, and thus *1185 the subsequent identification, of the baby has no merit. First, appellant is not asserting the infant’s Fourth Amendment rights; she is asserting her own rights in maintaining control and custody of the child. See United States v. Place, 462 U.S. 696 , 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983) (seizure of luggage for 90-minutes without probable cause is unreasonable). Second, the Supreme Court has repeatedly recognized one's right to challenge seizures of goods unlawfully possessed. See Hicks, 480 U.S. 321 , 107 S.Ct. 1149 (stolen goods); Illinois v. Andreas, 463 U.S. 765 , 103 S.Ct. 3319 , 77 L.Ed.2d 1003 (1983) (drugs); Warden v. Hayden, 387 U.S. 294, 305-06 , 87 S.Ct. 1642, 1649 , 18 L.Ed.2d 782 (1967) ("we have given recognition to the interest in privacy despite the complete absence of a property claim by suppressing the very items which at common law could be seized with impunity”). No different rule applies to an allegedly stolen baby.

The government also contends that even if the entry was unconstitutional, the identification of the baby is admissible under United States v. Ceccolini, 435 U.S. 268 , 98 S.Ct. 1054 , 55 L.Ed.2d 268 (1978), and United States v. Crews, 445 U.S. 463 , 100 S.Ct. 1244 , 63 L.Ed.2d 537 (1980). I disagree and take issue with my colleagues' musings about these decisions. Ante at -n. 20. Here, the baby's out-of-court identification clearly was obtained through exploitation of the primary illegal entry, see Wong Sun, 371 U.S. at 487-88 , 83 S.Ct. at 417 , and was not at all attenuated from the purpose of the entry. Compare Ceccolini, 435 U.S. at 276-78 , 98 S.Ct. at 1060-61 (witness’ testimony not excluded because witness exercised free will in testifying and exclusion of her testimony would perpetually disable her from testifying about relevant and material facts regardless of how unrelated such testimony might be to purpose of original illegal search); Crews, 445 U.S. at 477 , 100 S.Ct. at 1253 (in-court identification need not be suppressed as fruit of defendant's unlawful arrest when police’s knowledge of defendant’s identity and victim's independent recollection of defendant antedate the unlawful arrest and are untainted by it). Furthermore, enforcing the exclusionary rule in this situation will deter officers from proceeding in this manner in the future. Cfi Ceccolini, 435 U.S. at 280 , 98 S.Ct. at 1062 ("Application of the exclusionary rule in this situation could not have the slightest deterrent effect” on the officer’s behavior).