dissenting:
While I concur totally with the majority’s holding that the trial court committed reversible error in denying Porter’s post-trial motion under D.C.Code § 23-110, I emphatically dissent from its decision to remand for an evidentiary hearing on the alleged “plain view” issue.
This case was first argued with Judge Kramer as a member of the division. I was drawn to replace her when she retired, the case was set for reargument, and, at my request, the parties were directed by the court to file supplemental briefs to address four questions. They were:
(1) Assume that we find that the trial court erred in holding on the record before it that the second prong of Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), was not satisfied; and assume further that we decide that the record before us is insufficient to sustain the “second search” under the “plain view” doctrine; should we remand for an evidentiary hearing on the “plain view” issue?
(2) By what jurisprudential standard (legal test versus ad hoc) should we determine whether a remand for an evi-dentiary hearing is appropriate in cases such as this? See, e.g., McFerguson v. United States, 770 A.2d 66 (D.C.2001); Barnett v. United States, 525 A.2d 197 (D.C.1987); Brooks v. United States, 367 A.2d 1297 (D.C.1976); D.C.Code § 17-306 (2001).
(3) Should the jurisprudential standard referenced in (2) above be different where the issue is before us on direct appeal as in McFerguson, Barnett, or Brooks, or is before us, as in this case, on appeal, from a ruling on a post-trial motion?
(4) If so, why so? What should be the jurisprudential standard when we are reviewing this type for denial of post-trial relief, as is this case?
The parties submitted briefs addressing each of the questions; I have found these briefs particularly helpful in addressing these questions.
*269Our remand authority emanates from D.C.Code § 17-306 (2001). As the United States says in its brief, Congress patterned § 17-306 upon 28 U.S.C. § 2106 (2006), and intended § 17-306 to be virtually identical to § 2106. As we have held, § 17-306 “confers authority on this court in identical terms to section 2106.” Foster v. United States, 290 A.2d 176, 178 n. 6 (D.C.1972); accord, Gathy v. United States, 754 A.2d 912, 915 (D.C.2000).
The Supreme Court construed the provisions of 28 U.S.C. § 2106 in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). There, it established the jurisprudential standard which guides the exercise of discretion,1 by federal appellate courts, including the Supreme Court, in deciding whether to remand a case for an evidentiary hearing in situations such as those present in this case. That standard is: are there “special circumstances suggesting such an exceptional course.” Giordenello, supra, 357 U.S. at 488, 78 S.Ct. 1245. In Steagald v. United States, 451 U.S. 204, 208-09, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), the Court discusses a situation which meets this jurisprudential standard. See also United States v. Shotwell Mfg. Co., 355 U.S. 233, 236-41 & n. 17, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957) (cited with approval in Giordenello ); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568-69, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).
This standard has been followed by the various United States Courts of Appeal, see, for example, United States v. Archibald, 589 F.3d 289, 296 (6th Cir.2009); United States v. Nee, 261 F.3d 79, 86-87 (1st Cir.2001); United States v. Leonzo, 311 U.S.App.D.C. 134, 136, 50 F.3d 1086, 1088 (1995); EEOC v. Westinghouse Elec. Corp., 925 F.2d 619, 628-29 (3d Cir.1991); United States v. Thompson, 710 F.2d 1500, 1503-04 (11th Cir.1983); and the highest court of several states, see, for example, State v. Bell, 334 Md. 178, 638 A.2d 107, 114 (1994); and People v. Shuey, 13 Cal.3d 835, 120 Cal.Rptr. 83, 533 P.2d 211, 219 n. 4 (1975), abrogated on other grounds in Segura v. United States, 468 U.S. 796, 799, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).
Where our D.C. statute, rule or the like, is substantially identical to a federal counterpart, we look to the federal counterpart as persuasive authority. See, e.g., Kumar v. District of Columbia Water & Sewer Auth., 25 A.3d 9, 16-17 (D.C.2011) (holding that in interpreting the D.C. Human Rights Act we look to federal jurisprudence interpreting Title VII of the Civil Rights Act of 1964); United States v. Little, 851 A.2d 1280, 1282 n. 1 (D.C.2004) (concluding that in construing D.C.Code § 23-110 we rely on federal jurisprudence construing 28 U.S.C. § 2255); Wittenberg v. United States, 366 A.2d 128, 129, 132 & n. 5 (D.C.1976) (applying District embezzlement statute consistent with federal embezzlement statute); see also Appendix (listing our cases to like effect covering a vast variety of statutes and rules).
Our previous decisions which do not reference 28 U.S.C. § 2106 (2006) and such cases as Giordenello and its progeny when deciding remand questions pursuant to our authority under § 17-306, such as McFerguson v. United States, 770 A.2d 66 (D.C.2001), Barnett v. United States, 525 A.2d 197 (D.C.1987), Brooks v. United States, 367 A.2d 1297 (D.C.1976), do not impair our ability to invoke 28 U.S.C. § 2106 now to construe § 17-306. See District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C.1996); Murphy v. McCloud, 650 A.2d 202, 205 (D.C.1994) (“The rule of stare decisis is never properly invoked unless in the decision put forward as precedent the *270judicial mind has been applied to and passed upon the precise question”) (internal quotation marks omitted). There is no indication that we have ever previously considered the applicability of the federal analogue to our jurisdictional authority under § 17-306. We should explicitly hold here that 28 U.S.C. § 2106 and cases construing it are “persuasive authority” for us in construing § 17-306; plainly put, we should follow Giordenello and its progeny.2
Contrary to the picture painted by the majority, the United States had a full and fair opportunity to litigate the plain view issue before Judge Ross. A more detailed recitation of the trial court proceedings than done in the majority opinion is necessary to show what occurred. In his § 23-110 motion, in so far as relevant to our decision, Porter challenged both the original warrantless entry into the premises where he, and the only other two persons present there were removed for identification proceedings and a third warrantless entry and search where the robbery proceeds at issue were seized. In its opposition to Porter’s motion, the United States conceded that the third entry had been unlawful. As the United States stated with respect to this entry in its opposition to the motion: “[T]he police’s re-entry with the victim into [the] house was not justified by the Fourth Amendment given that [Bruce] consented only to the police’s initial entry into her home and to their request that they be permitted to check the home to see who was there. See Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (“[A] suspect may of course delimit as he chooses the scope of the search to which he consents.”). However, we disagree that this would have entitled defendant to any relief if a motion to suppress had been filed.”
The government propounded two grounds for this contention: (1) “inevitable discovery,” and/or (2) the items could have been seized under the “plain view” doctrine during the initial entry. Judge Ross rejected both these asserted bases.3 That concession by the United States that the third entry could not be justified constitutionally on other grounds consistent with the Fourth Amendment was also required, as will be further explicated hereafter in my discussion of Michigan v. Tyler, 436 U.S. 499, 511-12, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), as it relates to the plain view doctrine.
Judge Ross scheduled a hearing on Porter’s motion; prior to the hearing he caused his chambers to inquire of both parties whether either desired an eviden-tiary hearing.4 Both parties indicated they *271did not. During the hearing, the United States did not raise the plain view issue. Post-hearing, the United States filed a supplemental pleading again raising the plain view issue. In his response, Porter protested what he claimed was a change of position by the government, and most importantly for our purposes, asserted if the United States desired to assert a “plain view” rationale, an evidentiary hearing was necessary to elucidate that issue. In response, the government stated that it maintained its view that the third entry and search was illegal.
After Judge Ross scheduled a hearing for April 15, 2009 (a hearing that, it appears, the parties contemplated might encompass an evidentiary hearing), the United States and Porter filed a “Joint Motion” to vacate that hearing. In that joint motion, the United States reiterated what it had said in its Opposition to Porter’s Motion to Vacate Sentence motion (“[T]he police’s re-entry ... was not justified by the Fourth Amendment.”), and in its Sur-Reply to Porter’s Reply to its Opposition (“[W]e maintain our view that the second search was illegal.”), by yet again informing Judge Ross that the government was not now claiming that the third entry and search was legal and further vowing that “[tjhis remains and will remain, the position of the United States” (emphasis added).
The joint motion further stated: “The parties recently have conferred about this matter and agree that the remaining issues to be resolved are legal ones — i.e. the same issues that were before the Court at the conclusion of the December 3, 2008 hearing. Because resolution of those issues does not require the taking of evidence, the parties jointly request that the Court vacate the April 15, 2009, hearing in this case.”
The record thus indicates that wherever the government asserted the plain view rationale, Porter pointed out to Judge Ross the need for an evidentiary hearing so that he could “confront the witnesses.” Each time (according to my count, at least “thrice”) in the face of such assertion of rights, the United States eschewed such an evidentiary hearing, indicating to Judge Ross and to Porter that the United States was willing to rely (“gamble”?) on Judge Ross’s willingness to deny the motion on the ground that both the majority and I now reject.5
Sound jurisprudence cautions against remands for such “second bites” as the majority orders here. The evidence on which the government seeks to rely to uphold the search was fully known to the government at the time of the post-trial hearing. Because this is so, we should say as the U.S. Court of Appeals for the Third Circuit did in EEOC v. Westinghouse Electric Corp.: *272where a party “simply chose for tactical reasons, of its own accord, not to pursue grounds, for relief that it had[,] ... we cannot remand.” 925 F.2d 619, 628 (3d Cir.1991); accord, e.g., Leonzo, supra, 311 U.S.App.D.C. at 136, 50 F.3d at 1088; Thompson, supra, 710 F.2d at 1503-05. What the United States Court of Appeals for the District of Columbia said in an analogous (albeit not identical) circumstance bears repeating here:
In our jurisprudential system, trial and appellate processes are synchronized in contemplation that review will normally be confined to matters appropriately submitted for determination in the court of first resort. Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spurned on appeal. Canons of this tenor reflect, not obeisance to ritual, but considerations of fairness to the court and the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact. The injunction that trial ventilation precede appellate exploration best subserves that policy without appreciable imposition upon the litigants. It requires them to deal fairly and frankly with each other and with the trial tribunal with respect to their controversies. It prevents the trial of cases piecemeal or in installment. It tends to put an end to litigation. We think that sound judicial administration embraces importantly the elimination of expenditures of time and energy — by parties as well as courts — incidental to potentially unnecessary appeals.
Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967) (footnotes omitted) (internal quotation marks omitted).
In our prior cases where we have remanded for further proceedings relating to suppression issues such as present in this case, there always had been evidentiary hearings on the suppression motions. This is so in each of the comparable cases I have found, McFerguson v. United States, 770 A.2d 66 (D.C.2001); Martin v. United States, 567 A.2d 896 (D.C.1989); Barnett v. United States, 525 A.2d 197 (D.C.1987); Brooks v. United States, 367 A.2d 1297 (D.C.1976). In each of those cases we determined that the trial court had failed to make adequate findings of fact based on that evidentiary record to enable us to perform our appropriate appellate review. We remanded for such further findings of fact.6 My research has found no case from this court where we have remanded for a de novo evidentiary hearing where none previously had been conducted as the majority authorizes in this case; neither the United States nor the majority cite one.
Plain View
The Doctrine
The “plain view” doctrine was explicated by Justice Stewart, writing for the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). There the Court enunciated a number of points critical to our consideration.
It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evi*273dence seized by the police will be in plain view, at least at the moment of seizure. The problem with the “plain view” doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
An example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character.... Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus the police may inadvertently come across evidence while in “hot pursuit” of a fleeing suspect.... And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. ... Finally, the ‘plain view’ doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
The rationale for the “plain view” exception is evident if we keep in mind the two distinct constitutional protections served by the warrant requirement. First, the magistrate’s scrutiny is intended to eliminate altogether searches not based on probable cause. The premise here is that any intrusion in the way of search or seizure is an evil, so that no intrusion at all is justified without a careful prior determination of necessity.... The second, distinct objective is that those searches deemed necessary should be as limited as possible....
The “plain view” doctrine is not in conflict with the first objective because plain view does not occur until a search is in progress. In each case, this initial intrusion is justified by a warrant or by an exception such as “hot pursuit” or search incident to a lawful arrest, or by an extraneous valid reason for the officer’s presence. And, given the initial intrusion, the seizure of an object in plain view is consistent with the second objective, since it does not convert the search into a general or exploratory one. As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement. Where, once an otherwise lawful search is in progress, the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous — to the evidence or to the police themselves — to require them to ignore it until they have ob*274tained a warrant particularly describing it.
The limits on the doctrine are implicit in the statement of its rationale. The first of these is that plain view alone is never enough to justify the warrantless seizure of evidence....
Coolidge, supra, 403 U.S. at 465-71, 91 S.Ct. 2022 (footnotes and citations omitted); see also Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987).
Justice Scalia, writing for the Court, further explicated the doctrine in Hicks. There he held that to seize items under the plain view doctrine, probable cause to seize the item is required. “To hold otherwise would be to cut the plain view doctrine from its theoretical and practical moorings.” Hicks, supra, 480 U.S. at 326, 107 S.Ct. 1149.
A further requirement for application of the plain view doctrine is that the evidence must be seized during a constitutionally permissible entry. Michigan v. Tyler, 436 U.S. 499, 511-12, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978) (concluding evidence seized during unlawful entry into premises is obtained in violation of Fourth Amendment); Coolidge, supra, 403 U.S. at 443, 470-71, 91 S.Ct. 2022 (“[W]here the police know in advance the location of the evidence and intend to seize it, the situation is altogether different[, and a warrant is required.]”); accord, Douglas-Bey v. United States, 490 A.2d 1137, 1138-39 (D.C.1985); Shamaeizadeh v. Cunigan, 338 F.3d 535, 549 (6th Cir.2003) (“Although the plain view doctrine would likely have justified Wiles’s seizure of immediately incriminating drug paraphernalia during the first search, it clearly cannot justify the second and third searches.”); DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir.1993) (“The fact that the horses had been seen in plain view on the previous day did not insulate this second separate warrantless entry and seizure.” (citing Michigan v. Tyler)).
The United States in its supplemental brief before this court and during reargument seeks to suggest, as does the majority opinion, that the question of whether a police officer was already present in the premises at the time the police made the third entry accompanied by the victim is somehow relevant to the lawfulness of the seizures during that entry. The appropriate answer to this contention is a straightforward one. The United States conceded below, at least three times, as its obligation for integrity in advocacy compelled it to do, see Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (duty of United States Attorney in criminal prosecution), see also Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (same), Napue v. Illinois, 360 U.S. 264, 269-70, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (same), that the third entry was constitutionally unlawful. Even if there was an officer still remaining within the premises when this entry was made, that officer’s presence there was no longer constitutionally permissible, the consent for his/her presence having expired when all the persons in that premises had been removed therefrom for identification. As a result of that removal and identification process both Porter and Bruce had been arrested while the third person, Hunt, had been exculpated for the crime, but arrested on unrelated charges. Only two persons having been implicated by the victim as having been involved in the scheme to rob him at gun point and the police having verified that no other possible miscreant was on the premises, no constitutionally valid basis existed for an officer to remain within the premises.7 As stated previously, the United *275States candidly concedes this point as aforesaid citing Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). That concession is constitutionally correct and required. In addition to Florida v. Jimeno, see Thompson v. Louisiana, 469 U.S. 17, 20-23, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984); Mincey v. Arizona, 437 U.S. 385, 391-95, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).8
The government’s position was again plainly and clearly enunciated in its brief filed pursuant to our re-briefing order. There it stated:
although the police re-entry with the victim into Bruce’s home was not justified by the Fourth Amendment given that she consented only to the police’s initial entry, suppression of the seized robbery proceeds would have been inappropriate because Mr. Walker’s (the victim’s) personal property was in “plain view” in the home when the police checked the home to see who was there, and the police could thus have seized those items during their initial sweep. (Emphasis added.)
The government urged that the illegality of the seizing entry did not render the seized items inadmissible in spite of the exclusionary rule announced in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). For authority for this position the government cites to Clark v. United States, 593 A.2d 186, 197-98 (D.C.1991), and Settles v. United States, 615 A.2d 1105, 1112 (D.C.1992). At re-argument, in response to questions, the government made explicit its contention that the illegality of the seizing entry is constitutionally irrelevant and its contention that Clark is authority for this proposition.
The facts of Clark bear repeating. In response to a call of a shooting, Officer Cole arrived at Clark’s apartment at 9:50 p.m. He went into the bedroom where the shooting had occurred and observed in plain view decedent’s body, a pistol with which she had apparently been shot, and an ammunition clip containing unspent bullets. Cole remained on the premises to preserve the crime scene. At approximately 10:20 p.m., an evidence technician arrived, entered, photographed the body, and retrieved the pistol and ammunition clip, i.e., the “plain view” evidence. It is this entry by the evidence technician while Cole was still lawfully on the premises that the government reads our opinion in Clark to have held to be a constitutionally unlawful entry. Query? Would the coroner’s office personnel entering to retrieve the dead body, while Cole remained on the premises, have been a constitutionally unlawful entry? Obviously not. Nor was the entry by the evidence technician. There was no additional intrusion on any privacy *276interest protected by the Fourth Amendment. Indeed, there is nothing in the opinion in Clark which speaks to how the evidence technician obtained entry, whether by consent, exigent circumstances (as seems clear from the stated facts), or otherwise. Settles is equally inapposite for the same reason and provides no support for the government’s contention. It is important for all to remember what the Supreme Court said in Armour & Co. v. Wantock:
It is timely again to remind counsel that words of our opinions are to be read in the light of the facts of the case under discussion. To keep opinions within reasonable bounds precludes uniting into them every limitation or variation which might be suggested by the circumstances of cases not before the Couri. General expressions transposed to other facts are often misleading.
323 U.S. 126, 132-33, 65 S.Ct. 165, 89 L.Ed. 118 (1944) (emphasis added); accord, Kraft v. Kraft, 155 A.2d 910, 913 (D.C.1959).
The majority ultimately eschews such a reading of Clark and Settles. This is not surprising given the teachings of Coolidge, supra, 403 U.S. at 470-71, 91 S.Ct. 2022 (“[W]here the police know in advance the location of the evidence and intend to seize it, the situation is altogether different[, and a warrant is required.]”); Shamaeizadeh, supra, 338 F.3d at 549 (“Although the plain view doctrine would likely have justified Wiles’s seizure of immediately incriminating drug paraphernalia during the first search, it clearly cannot justify the second and third searches.”); DiCesare, supra, 12 F.3d at 978 (“The fact that the horses had been seen in plain view on the previous day did not insulate this second separate warrantless entry and seizure.” (citing Michigan v. Tyler)). In this regard, consider by way of contrast, the doctrine of inevitable discovery. See McFerguson, supra, 770 A.2d at 74-77 (holding that for inevitable discovery, “the lawful process which would have ended in the inevitable discovery [must] have ... commenced before the constitutionally invalid seizure.” (alterations in original) (internal quotation marks omitted)).
Unable to justify a remand on the government’s flawed reading of Clark and Settles, the majority resorts to what, in my view, is an impermissible re-writing of the government’s repeatedly given concessions. The majority says:
The government conceding as it did in the trial court that Officer Tighe’s reentry “with the victim” was not justified by the Fourth Amendment and acknowledging the illegality of any “search” that took place during the second entry as distinguished from Officer Tighe’s seizure of items in plain view and recognized as incriminatory during the initial sweep agrees that any evidence that was the fruit of the Fourth Amendment violation was inadmissible.
Neither in the trial court, orally or in writing, nor in this court, orally or in writing, has the government ever parsed its concessions in such a fashion. Rather, as is shown by its opposition to Porter’s motion to suppress in the trial court, and its brief and argument before us, the government’s concessions relating to the police re-entry with or without the victim was based solely on the expiration of consent, citing as it did to Florida v. Jimeno, 500 U.S. at 252, 111 S.Ct. 1801. Likewise, in its brief filed prior to re-argument, the government stated “although the police reentry with the victim into Bruce’s house was not justified by the Fourth Amendment given that she had consented only to the police initial entry. ...” (emphasis added). I repeat, at no stage of these proceedings has the government suggested *277the reading the majority now propounds. This is not surprising for I submit, if the government had done so, it would have been rightly subject to criticism for taking one position in the trial court and a contradictory position before us. See, e.g., Duk Hea Oh v. National Capital Revitalization Corp., 7 A.3d 997, 1010 (D.C.2010) (“[A] defendant may not take one position at trial and a contradictory position on appeal.”); In re L.M., 5 A.3d 18, 19 (D.C.2010) (same); Cox v. United States, 999 A.2d 63, 67 n. 5 (D.C.2010) (same). What the government does not seek to do, I suggest that the majority is seeking to do in its stead. And all without any party, or indeed the court, having an opportunity to ventilate and explore this construction during oral argument, since this construction first surfaced in the majority opinion. I find this inappropriate. See Ford v. United States, 533 A.2d 617, 624-25 (D.C.1987) (en banc) (“ ‘The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.’ ” (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983) (citations omitted))); see also Rose v. United States, 629 A.2d 526, 536-37 (D.C.1993) (same).
In rejecting the majority’s attempt to re-write the government’s concessions, I am reminded of the quote from Senator Sam Erwin of North Carolina in retort to John Ehrlichman during the Senate Watergate Hearings: “Because I understand the English language. It is my mother tongue.”
Evidentiary Issues
The offense in this case occurred in 2003. The remand hearing in this case, which the majority authorizes, if held, will occur in 2012, approximately nine years after the offense and a number of years after the hearings before Judge Ross. If such a hearing is held, major evidentiary and proof problems will arise. Can the victim be located and produced to testify? Are the police officers still available? Given the passage of time, and its natural impact on human memory, what is the value of this testimony in 2012 about what they recollect about events occurring in 2003 pertaining to: (1) what was taken from the victim; (2) what the victim told the police was taken from him; (3) what did the police see during the first entry; (4) was this evidence in plain view during the first entry; (5) was such sighting during the constitutionally permissible period of the first entry; (6) was the incriminating nature of this evidence readily apparent; (7) did probable cause exist to seize this evidence at a constitutionally permissible period of first entry presence; (8) did they have to move items to see other items, see, for example, Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); and (9) which items are excludable, even under the majority opinion, given the participation of the victim. This difficulty is particularly acute given the apparent dearth of written documents that could be used to “refresh” the witnesses’ recollection, even assuming such “refreshing” could, in fact, occur so belatedly.
The apparent answer of the majority to these evidentiary hurdles seems to be that they work to the detriment of Porter’s burden. The majority does so by declaring that portion of Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986), which speaks directly to the issue before us to be dictum. I disagree. While the Court, earlier in the Kimmelman opinion, discussed a defendant’s burden to establish both prongs of a *278Strickland9 violation it is when the Court is discussing the burden of establishing the constitutional validity of a warrantless search that the Court speaks of the government’s burden in language the majority dismisses as dictum. More importantly, however, there was no reason for Porter to proceed with an evidentiary hearing even if the majority is correct (which I dispute) that it was his burden to do so, given the United States’ repeated and comet concessions that the third entry leading to the evidentiary seizures at issue here was constitutionally unlawful. Apparently, counsel for Porter, as do I, recognized that as long as these concessions were not repudiated, Michigan v. Tyler, supra, doomed any invocation of the plain view doctrine to failure. Whenever Porter thought the United States was retreating from its concessions, he demanded an evidentiary hearing to “confront the witnesses.” The response of the United States was to reaffirm its adherence to the concessions. Indeed, even the majority seems to acknowledge that Judge Ross clearly recognized the legal effect of the concessions by the United States as dooming any relevance of plain view, because the majority quotes from Judge Ross’s ruling that he was prepared to entertain argument with respect to the first and third entries but not the second. Judge Ross said:
“And there were a few other details I recounted last time.... I wanted to give [both sides] a chance to argue, but I essentially think that ... I didn’t know if you wanted an evidentiary hearing or what, but I still think that you’re right. It has to be based on something in regards to the first [search] and the third [search], but not the second [search].”
In light of all this, I will not dwell further in a rebuttal of the majority’s analysis of who had the burden of proof, etc. on the suppression portion of this post-trial motion.
Conclusion
My principal concern leading me to emphatically dissent in this case is not with the individual litigant, Porter. I am satisfied that a proper application of the plain view doctrine and the constitutional hurdles existing in establishing the admissibility of the challenged evidence, as well as the evidentiary problems I have noted, will likely cause the government not to seek a further hearing and to concede the result compelled by Michigan v. Tyler and their concessions pertinent thereto. Further, if such a hearing were held, I am sanguine that the constitutional issues which I have discussed will lead the trial court to reject the plain view doctrine as inapposite in this case as did Judge Ross previously. If I am wrong on both these points, I am confident that future appellate review by another division of this court will vindicate Porter’s constitutional rights.
Rather, the concerns which prompt me to so strongly dissent are jurisprudential, relating to the integrity, propriety, and efficiency of our judicial process. These concerns have been central to me and have motivated my service on this court since I joined it on October 14, 1976, over thirty-five years ago. See, e.g., Davis v. United States, 564 A.2d 31 (D.C.1989) (en banc) (standards of appellate review); United States v. Felder, 548 A.2d 57 (D.C.1988) (holding that review is de novo in questions of collateral estoppel); Johnson v. United States, 398 A.2d 354 (D.C.1979) (exercise of discretion and appellate review thereof). It is these concerns that caused me to request the court pose to the parties the questions we did for supplemental briefing and argument. It is to these con*279cerns I speak in conclusion. This court should explicitly adopt the holding of the Supreme Court in Giordenello and its progeny.10 A faithful application of that standard: “special circumstances suggesting such an exceptional course,” mandates that we not remand this case for further proceedings. Any holding such as that in the majority opinion suggesting that the facts of this case meet that rigorous standard, in my view, makes a mockery of that standard. If this case does, I submit it is impossible to postulate a case which would not. It is because of these jurisprudential concerns about the judicial process that I “emphatically dissent.”
Appendix
1. Statutes
a. District of Columbia Human Rights Act (“DCHRA”) & Title VII of Civil Rights Act of 1964
i. Kumar v. District of Columbia Water & Sewer Auth., 25 A.3d 9, 16 (D.C.2011)
ii. Arthur Young & Co. v. Sutherland, 631 A.2d 354, 361 n. 17 (D.C.1993)
b. DCHRA (D.C.Code § 2-1402.11(a) (2001)) & Americans with Disabilities’ Act
i. Teru Chang v. Inst. for Public-Private P’ships, Inc., 846 A.2d 318, 324 (D.C.2004)
c. District of Columbia Arbitration Act and Federal Arbitration Act
i. Bolton v. Bernabei & Katz, PLLC, 954 A.2d 953, 960 n. 5 (D.C.2008)
ii. Hercules & Co. v. Beltway Carpet Service, Inc., 592 A.2d 1069, 1072-73 (D.C.1991)
d. Federal embezzlement statute & D.C.Code embezzlement
i. Wittenberg v. United States, 366 A.2d 128, 132 & n. 5 (D.C.1976)
e. Federal Habeas Corpus Statute
i. U.S. Supreme Court
(1) Swain v. Pressley, 430 U.S. 372, 377, 97 S.Ct. 1224, 1228, 51 L.Ed.2d 411 (1977)
ii. D.C. Court of Appeals
(1) United States v. Little, 851 A.2d 1280, 1282 n. 1 (D.C.2004).
(2) Peoples v. Roach, 669 A.2d 700, 702 (D.C.1995)
(3) Butler v. United States, 388 A.2d 883, 886 n. 5 (D.C.1978)
f. Federal wiretap statute D.C. wiretap statute
i. United States v. Sell, 487 A.2d 225, 228-29 (D.C.1985)
g. Statutory waiver of sovereign immunity
i. Kelton v. District of Columbia, 413 A.2d 919, 921 & n. 4 (D.C.1980)
h. D.C. Workers Compensation Act
i. Dillon v. District of Columbia Dep’t ofEmpl. Servs., 912 A.2d 556, 559 n. 5 (D.C.2006)
ii. Porter v. District of Columbia Dep’t of Empl. Servs., 518 A.2d 1020, 1024 (D.C.1986) (Rogers, J., dissenting)
i. Federal Anti-Injunction Act and the D.C. Anti-Injunction Act
i. District of Columbia v. Craig, 930 A.2d 946, 953 n. 7 (D.C.2007)
ii. District of Columbia v. United Jewish Appeal Fed’n, 672 A.2d 1075, 1079 n. 3 (D.C.1996)
j. Federal APA and DCAPA
*280i. Lee v. District of Columbia Bd. of Appeals & Review, 423 A.2d 210, 216 (D.C.1980)
ii. Basiliko v. District of Columbia, 283 A.2d 816, 818 (D.C.1971)
k. Probation Act
i. Willis v. United States, 250 A.2d 569, 570 (D.C.1969)
l. Federal bail statute
i. Scott v. United States, 633 A.2d 72, 73 & n. 1 (D.C.1993)
m. Drug Free Zones law, federal and D.C.
i. Goodson v. United States, 760 A.2d 551, 553-54 (D.C.2000)
n. Breaking and Entering, federal and D.C.
i. Jones v. United States, 336 A.2d 535, 538 n. 4 (D.C.1975)
o. Contempt, federal and D.C.
i. United States v. Maye, 675 A.2d 57, 59 (D.C.1996)
2. Rules
a. See generally
i. D.C.Code § 11-743 (2001)
ii. D.C.Code § 11-946 (2001)
b. Federal Rules of Criminal Procedure & Superior Court Rules of Criminal Procedure
i. Rule 6
(1) Law v. United States, 488 A.2d 914, 915 (D.C.1985)
ii. Rule 8
(1) Goldkind v. Snider Bros., Inc., 467 A.2d 468, 472 (D.C.1983)
(2) Joyner v. United States, 540 A.2d 457, 459 n. 1 (D.C.1988)
iii. Rule 16
(1)Rowland v. United States, 840 A.2d 664, 678 n. 16 (D.C.2004)
(2) Davis v. United States, 623 A.2d 601, 605 n. 12 (D.C.1993)
(3) Waldron v. United States, 370 A.2d 1372, 1373 (D.C.1977)
iv. Rule 17
(1) Brown v. United States, 567 A.2d 426, 428 n. 6 (D.C.1989)
v. Rule 25
(1) In re D.M.R., 373 A.2d 235, 237 (D.C.1977)
vi. Rule 32
(1) Warren v. United States, 436 A.2d 821, 841 n. 45 (D.C.1981)
vii. Rule 33
(1) Sellars v. United States, 401 A.2d 974, 978 (D.C.1979)
(2) Diamen v. United States, 725 A.2d 501, 506 (D.C.1999)
viii. Rule 35
(1) Brown v. United States, 795 A.2d 56, 61 (D.C.2002)
(2) United, States v. Nunzio, 430 A.2d 1372, 1374 n. 6 (D.C.1981)
(3) McDaniels v. United States, 385 A.2d 180, 181 n. 2 (D.C.1978) (per curiam)
ix. Rule 43
(1) Campbell v. United States, 295 A.2d 498, 501 (D.C.1972)
(2) Arnold v. United States, 443 A.2d 1318, 1327 n. 10 (D.C.1982)
c.Federal Rules of Civil Procedure & Superior Court Rules of Civil Procedure
i. Rule 3
(1) Varela v. Hi-Lo Powered Stirrups, 424 A.2d 61, 65 (D.C.1980)
ii. Rule 6
(1) Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 807 (D.C.1984)
iii. Rule 8
*281(1) Feldman v. Gogos, 628 A.2d 103, 104 n. 1 (D.C.1993)
(2) Whitener v. Washington Metropolitan Area Transit Authority, 505 A.2d 457, 458 (D.C.1986)
iv. Rule 11
(1) Park v. Sandwich Chef, 651 A.2d 798, 802 n. 4 (D.C.1994)
(2) Montgomery v. Jimmy’s Tire & Auto Center, Inc., 566 A.2d 1025, 1027 (D.C.1989)
v. Rule 15
(1) Arrington v. District of Columbia, 673 A.2d 674, 680 n. 6 (D.C.1996)
(2) Strother v. District of Columbia, 372 A.2d 1291, 1297 n. 15 (D.C.1977)
(3) Pritchett v. Stillwell, 604 A.2d 886, 888 n. 2 (D.C.1992)
(4) International Tours & Travel, Inc. v. Khalil, 491 A.2d 1149, 1153 n. 7 (D.C.1985)
vi. Rule 19
(1) Kelley v. Cox, 105 A.2d 255, 256 n. 3 (D.C.1954)
vii. Rule 24
(1) Vale Properties, Ltd. v. Canterbury Tales, Inc., 431 A.2d 11, 13 n. 3 (D.C.1981)
viii. Discovery Rules Generally
(1) Snyder v. Maryland Casualty Co., 187 A.2d 894, 895 (D.C.1963)
(2) Doherty v. Shamley, 132 A.2d 862, 863-64 (D.C.1957)
ix. Rule 26
(1) Gubbins v. Hurson, 885 A.2d 269, 277 n. 3 (D.C.2005)
(2) Adkins v. Morton, 494 A.2d 652, 656 & n. 5 (D.C.1985)
(3) Abbey v. Jackson, 483 A.2d 330, 334-35 & n. 5 (D.C.1984)
(4) Floyd v. Leftwich, 456 A.2d 1241, 1245 n. 4 (D.C.1983)
x. Rule 41
(1) Waters v. Castillo, 755 A.2d 478, 481 (D.C.2000)
(2) Taylor v. Washington Hospital Center, 407 A.2d 585, 590 n. 4 (D.C.1979)
(3) Bazata v. National Ins. Co., 400 A.2d 313, 314 n. 1 (D.C.1979)
(4) Boks v. Charles E. Smith Management, Inc., 453 A.2d 113, 114 n. 1 (D.C.1982)
(5) Beckwith v. Beckwith, 379 A.2d 955, 959 n. 5 (D.C.1977)
xi. Rule 43-1
(1) Durant v. United States, 551 A.2d 1318, 1331 (D.C.1988) (Newman, J., concurring)
xii. Rule 54
(1) Dyhouse v. Baylor, 455 A.2d 900, 901 n. 3 (D.C.1983) (per curiam)
xiii. Rule 54-11
(1) Herbin v. Hoeffel, 727 A.2d 883, 888 n. 10 (D.C.1999)
xiv. Rule 60
(1) Lynch v. Meridian Hill Studio Apts., Inc., 491 A.2d 515, 518 n. 4 (D.C.1985)
d. Other Rules
i. Super. Ct. Neg. R. 1(a)
(1) In re C.A.P., 356 A.2d 335, 343 (D.C.1976) (“While there are no corresponding federal neglect rules, we nonetheless look to the scope and effect of the federal rules for guidance in determining the scope and effect of the Superior Court rules.”)
ii. Federal Rule of Appellate Procedure & D.C. Court of Appeals Rule 4
(1) In re AK. V, 747 A.2d 570, 574 n. 10 (D.C.2000)
*282(2) Thomas v. United States, 586 A.2d 1228, 1230 n. 3 (D.C.1991) (per curiam)
. See Johnson v. United States, 398 A.2d 354 (D.C.1979).
. In answer to the third question we posed to the parties for supplemental briefing and reargument, i.e., whether the jurisprudential standard we should apply is "different where the issue is before us on direct appeal ... from a ruling on a post-trial motion,” both parties agreed that the same jurisprudential standard is applicable in both direct appeals and on post-trial motions such as in this case. So do I.
. In its opposition to Porter’s motion, the government devoted four pages to "inevitable discovery” and only three-quarters of a page to "plain view” (citing only Umanzor v. United States, 803 A.2d 983 (D.C.2002)). On this appeal, the government correctly abandons any relevance on inevitable discovery. See McFerguson, supra, 770 A.2d at 74-77. The short answer to the contention that the items "could have” been seized during the first entry under the plain view doctrine is that they were not seized then.
.At the outset of the first hearing before Judge Ross on December 3, 2008, Judge Ross stated:
I did want to put on the record that I offered both parties the opportunity to present live witnesses for an evidentiary hearing to supplement the record. It was my understanding through my law clerk that neither party wanted to call witnesses and that *271the parties just wanted to ... have oral argument.
It is only fair to note that although we agree and hold that Judge Ross erred in his ultimate ruling, he did all that a judge could be expected to do to afford the United States an opportunity to proceed with an evidentiary hearing. The United States elected to eschew these opportunities. As I set forth later in my discussion of Michigan v. Tyler, supra, given the concessions by the United States, Porter had no need for an evidentiary hearing.
. That the United States did not deem the proceedings of Judge Ross with respect to an evidentiary hearing as depriving it of anything it desired is perhaps demonstrated by its failure, in its briefing before the original merits division in this case, to request that if we found the record before us insufficient to sustain Judge Ross on the alternative rationale of "plain view,” that we then remand the record (or case) to the trial court for an evidentiary hearing. In my view, this is of particular significance when one realizes the paucity of evidence in the record before us relevant to this issue.
. In McFerguson, we left to the discretion of the trial judge whether to conduct a further evidentiary hearing. 770 A.2d at 76.
. In its opinion, the majority references the written report of Officer Tighe referring to the *275officer who accompanied Hunt back inside. This was the second entry. In fact, it is not this "re-entry” that is at issue in this case, although why the police would take someone back into the premises, in which they suspected a sawed-off shotgun is secreted, to “ensuring against someone’s jumping out with’ the shotgun” defies logical explanation. This is particularly so since everyone had previously been removed therefrom. However, this is entirely besides the point. The re-entry at issue is the later one in which the victim was taken back into the premises to see if he could identify any of his property. In fact, the shotgun was recovered much later as a result of a constitutionally valid search pursuant to a search warrant.
. Likewise, if the entry were sought to be justified under the "exigent circumstances” doctrine (armed robbery with suspects likely still present on premises), the "exigent circumstances” would have also expired. See Maryland v. Buie, 494 U.S. 325, 331-34, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990); United States v. Harris, 629 A.2d 481, 492 (D.C.1993).
. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. I am satisfied that the majority’s failure to explicitly adopt the Giordenello standard does not interfere with a subsequent division of this court doing so.