dissenting.
Prior to his first murder trial, Gregory Mung Sen Tu, the petitioner, moved to suppress certain items of physical evidence seized, pursuant to a search and seizure warrant, from his Las Vegas motel room. A hearing was held on the motion, during the course of which the State proffered as to the items seized and the location from which they were seized. The petitioner characterizes the proffer as a stipulation.1 I agree with that characterization. The stipulation was corroborated by the trial testimony of Officer Turner, one of the Maryland investigating officers.2 The theory the State offered in sup*431port of the admissibility of the evidence was the plain view doctrine, contending that the items were legitimately seized because the police were legitimately on the premises and the items were in plain view.
The trial court denied the petitioner’s motion to suppress and admitted the evidence. On appeal, reasoning that the State failed to prove the applicability of the plain view doctrine, the Court of Special Appeals reversed, suppressing the evidence and remanding the case to the circuit court for a new trial.
*432On remand, the State proposed to offer the same evidence, but to justify its admission on a different theory. The prosecutor informed the court that, contrary to testimony at trial and the prosecutor’s stipulation, six of the subject seven items were never seized from the petitioner’s motel room pursuant to the search warrant; rather, they were seized by the Las Vegas Police Department, incident to the petitioner’s lawful arrest. The prosecutor proffered, therefore, that Turner would testify at the second suppression hearing, that the testimony he gave at the first trial was “mistaken,” and that he realized his error only when reviewing the files in the State’s Attorney’s office in preparation for the retrial.3 The prosecutor also acknowledged that he too “had missed it,” explaining:
Your Honor, this was a complicated trial in which the officers already indicated that there were hundreds of pieces of evidence that were seized * * * This information was provided in discovery from the very beginning ... I missed it ... I can tell the court feels terrible about what happened, but I guess the point of the matter is that I don’t think the State should be punished when we have adequately shown to you that it was not taken from the El Rancho.
Adding “I don’t think it serves the ends of justice or serves the ends of the laws that exist in this State to suppress that information when clearly it was not found within the El Rancho Hotel,” he argued that the custodial items “were not seized pursuant to the warrant, ... were never the subject of *433the [Court of Special Appeals’] opinion in this case, not governed by the opinion in this case, and therefore available and admissible for the State in the retrial.”4
Notwithstanding that the record was clear that the State stipulated that the items at issue were seized from the petitioner’s motel room, the circuit court ruled “that the State’s position prevails in this case, and the items as requested will be received at trial.” Affirming that ruling, the majority holds that “the custodial items were not barred by the law of the case doctrine,” Majority op. at 428, a holding that has far reaching and potentially dangerous ramifications. Accordingly, I dissent.
As long ago as 1867, this Court stated, referencing the law of the case doctrine:
No principle is better established than that a decision of the Court of Appeals once pronounced in any case is binding upon the court below and upon this Court in the subsequent proceedings in the same case, and cannot be disregarded or called into question. It is the law of the case binding and conclusive upon the parties, not open to question or examination afterwards in the same case.
Waters v. Waters, 28 Md. 11, 22 (1867). More recently, we explained it thusly:
[P]rior to the creation of the intermediate appellate court, this Court had established a firm judicial policy against the piecemeal trial of cases. We refused to allow successive appeals in a case that posited the same questions that had been previously decided by this Court in a prior appeal of the same case. We forbade the parties, on any subsequent appeal of the same case, to raise any question that could have been raised in the previous appeal on the record as it existed in the trial court. We stated our position and the *434reasons therefor rather cogently in Fidelity-Baltimore Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367, 372, 142 A.2d 796, 798 (1958):
Once this Court has ruled upon a question properly presented on appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the “law of the case” and is binding on the . litigants and courts alike, unless changed or modified after reargument, and neither the question decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal. (Citations omitted).
Loveday v. State, 296 Md. 226, 229, 462 A.2d 58, 59 (1983). See also Korotki v. Springer, 218 Md. 191, 193-194, 145 A.2d 767, 768 (1958) (the law of the case applies whether the judgment on appeal is reversed or affirmed and it applies to “all matters decided by the appellate court”). This is consistent with the universal application of the doctrine in both federal and state courts. See Gohman v. St. Bernard, 111 Ohio St. 726, 146 N.E. 291, 292 (1924), in which it is said:
It is a rule of general application that the decision of an appellate court in a case is the law of that case on the point presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal.
See also United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198, 70 S.Ct. 537, 544, 94 L.Ed. 750, 761 (1950); Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir. Ill.1972); Pincus v. Pabst Brewing Co., 752 F.Supp. 871, 872-873 (E.D.Wis.1990); Kowis v. Howard, 3 Cal.4th 888, 12 Cal.Rptr.2d 728, 729, 838 P.2d 250, 251 (1992); In Re Estate of Baird, 193 Cal. 225, 223 P. 974, 978 (1924); Alumet v. Bear Lake Grazing Co., 119 Idaho 946, 812 P.2d 253, 257 (1991); Stroh Brewery Co. v. Director of New Mexico Dep’t of Alcoholic Beverage Control, 112 N.M. 468, 816 P.2d 1090, 1096 (1991).
*435Important and well founded policy considerations underlie the law of the case doctrine. By its application, piecemeal appeals are avoided, thus furthering the judicial goals of economy, fairness, and finality. As a consequence, a party to a case is denied a second opportunity to litigate an issue which has already been tried and decided in the same case; that party is not given a second bite of the apple, especially, when due to his or her own negligence or incompetence, the first one was insufficient. Moreover, the doctrine recognizes that if litigants are permitted to prosecute consecutive appeals on different theories whenever an earlier theory has proven unsuccessful, the goal of finality will become more, rather than less, elusive. On this point, this Court has observed:
[If the concept of finality did not include both questions decided and those that could have been decided] ..., any party to a suit could institute as many successive appeals as the fiction of his imagination produced new reasons to assign as to why his side of the case should prevail, and the litigation would never terminate.
Fid-Balto. Bank v. John Hancock, 217 Md. at 372, 142 A.2d at 798. See also Chayt v. Board of Zoning Appeals, 178 Md. 400, 403, 13 A.2d 614, 615 (1940).
I acknowledge, as our cases also recognize, that the law of the case doctrine is not totally inflexible. See Loveday, 296 Md. at 229, 462 A.2d at 59 (emphasis added) (“We refused to allow successive appeals in a case that posited the same questions that had been previously decided by this Court in a prior appeal of the same case”); Korotki, 218 Md. at 194, 145 A.2d at 768 (“Some of the cases intimate that something in the nature of a bill of review might lie for newly discovered evidence or perhaps fraud, even after affirmance in whole or in part by this Court”). Indeed, it is well settled that the doctrine does not apply when “one of three ‘exceptional circumstances’ exists: the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision on the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.” Smith International, Inc. v. Hughes Tool Compa*436ny, 759 F.2d 1572, 1576, (Fed.Cir.1985). For obvious reasons, the majority wisely does not rely on the latter two of those exceptions. No contrary decision of the law applicable to the issue in this case has intervened. The decision of the Court of Special Appeals in Tu I was not clearly erroneous in light of the facts on which it was decided.
Instead, the majority adopts the exception championed by the intermediate appellate court: “[t]he ‘law of the case’ doctrine does not preclude reconsideration of an issue decided in an earlier appeal if the evidence on remand is substantially different.” See Tu v. State, 97 Md.App. 486, 497, 631 A.2d 110, 115 (1993), (Tu II). According to the majority, where the appellate opinion reversing the defendant’s conviction does not contain express directions as to the scope of the remand proceedings,
[t]he erroneous denial of a motion to suppress does not, in and of itself, preclude any trial court reconsideration of the admissibility of the State’s evidence that was the subject of the suppression motion, at least if the reconsideration presents a legal theory that was not ruled upon on the prior appeal. Further facts that are relevant to applying their previously unadjudicated legal theory and that were not previously presented may be considered by the trial court, even if those facts were known to the State at the time of the original trial court ruling.
Majority op. at 420. This interpretation, the majority states, is “distilled” from United States v. Shotwell Manufacturing Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957) and Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).
The majority thus clearly sanctions the relitigation, using facts known to the State at the time of the initial proceedings, of a previously decided suppression motion, so long as the proponent advances a legal theory that was not the basis of *437the court’s prior ruling.5 What is not so clearly stated, but, nevertheless is implicit, given the facts of this case, is that reconsideration is proper even when the viability of the new theory depends upon testimony that directly conflicts with the testimony and, in this case, the stipulation offered at the earlier suppression hearing and trial. In other words, as interpreted by the majority, the “substantially different” evidence exception allows the State to justify the reconsideration of the admissibility of previously suppressed evidence by, itself, providing a different version of the facts previously offered, unsuccessfully, in opposition to the defendant’s motion to suppress. According to the majority, therefore, evidence offered at a second hearing is “substantially different” if it was not offered at the first one; it need not be “newly discovered.” Furthermore, in this case, admissibility is not affected by the State’s responsibility for the record on which the Court of Special Appeals relied when it decided Tu I, or its responsibility to work its way through any confusion which may be caused by an admittedly complex case.
Whether analyzed simply on its unique facts or on the basis of the law of the case doctrine, the majority is just plain wrong. The law of the case aside, the State cannot be permitted to change its stipulation, presumably made in good faith and certainly on which the parties and the courts clearly relied, whenever it learns that the theory it had espoused is not viable. Unless there is good cause, i.e., a showing that it was induced into making the stipulation by the defendant, that *438the defendant otherwise has responsibility for the State’s mistake in that regard, or “grounds which would justify the setting aside of a contract such as mutual mistake, fraud, invalidity and the like,” Peddicord v. Franklin, 270 Md. 164, 175, 310 A.2d 561, 567 (1973), the State is bound by the stipulation. Id.; Benson v. Mays, 245 Md. 632, 639, 227 A.2d 220, 224 (1967) (Where all of applicable evidentiary facts were stipulated between counsel, the lower court accepted the stipulation, and its opinion was based on truth of facts so stipulated, the stipulation was held binding on appellant and he could not disclaim its effect on appeal); C & K Lord, Inc. v. Carter, 74 Md.App. 68, 536 A.2d 699 (1988) (stipulation has binding force of contract and will not be set aside absent showing of good cause such as collusion, fraud, mutual mistake or other grounds that would justify setting aside of contract); Oubre v. District of Columbia Dep’t of Employment Servs., 630 A.2d 699, 702 (D.C.1993) (Stipulation of facts is binding upon parties to litigation and upon courts); Joyner v. Jonathan Woodner Co., 479 A.2d 308, 311 (D.C.App.1984) (generally matters stipulated to at trial cannot be argued on appeal); Baker v. Reese, 372 S.W.2d 788, 789 (Ky.1963) (“The court is bound [by stipulation] in the absence of some reason to invalidate it.”); Wagner v. Myers, 355 Mich. 62, 93 N.W.2d 914, 917 (1959) (setting aside a stipulation carries a heavy burden of persuasion, since every presumption of judicial care, of professional competence, and of decretal stability is against the overthrow, in the appellate court, of such stipulations and orders and decrees based thereon); Marrujo v. Chavez, 77 N.M. 595, 426 P.2d 199, 202 (1967) (not sufficient reason to set aside stipulation where ample facts in the record should have alerted a person of reasonable prudence to the apparent error prior to the final agreement embodied in the stipulation.). But see Roth v. Morton’s Chefs Services Inc., 173 Cal.App.3d 380, 385, 218 Cal.Rptr. 684, 687 (2d Dist.1985) (A court may set aside a stipulation entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts stipulated have changed or there has been a change in the underlying conditions that could not have been anticipated, *439or where special circumstances exist rendering it unjust to enforce the stipulation). This is especially the case where, as here, not only did the parties rely on the stipulation, but it formed the basis for the decision of both the trial court and the appellate court that reviewed the case. The fact that the State offered testimony in corroboration of the stipulation further militates in favor of the State being held bound by the stipulation.
The reasons for holding the State to its stipulation in this case are obvious. If the State is permitted to obtain admission of previously suppressed evidence upon showing nothing more than that it made a mistake, there being no contention that the defendant somehow bears responsibility for it, the requirement of competence that we demand of counsel will be severely undermined. Rather than requiring that counsel act competently and carefully, we would encourage counsel to do just the opposite. If reconsideration of a prior ruling can be obtained by offering testimony that counsel stipulated to the wrong set of facts because both counsel and the police misconstrued the evidence and the court believes that testimony, there really is no incentive to take care when reviewing cases or making stipulations. Indeed, because a change in fact pattern will almost always require that a new theory be advanced, on remand, reconsideration will almost always be possible. Therefore, careful preparation may come to be seen as too risky; careful preparation would insure a party only one opportunity to suppress the evidence, rather than the two that it could get if it were sloppy. Moreover, this rule is very susceptible to fraud and perjury. To be sure, a change in testimony, in many instances, may be honest and legitimate, albeit the result of negligence; however, whenever the change in testimony need be based on nothing more substantial than that presented in this case, it is not at all inconceivable that it may constitute perjury. And it is no answer that the judge must believe the witness or that the instances in which actual perjury is involved may be few. The danger is that the rule the majority adopts permits perjury, which, as a matter of *440policy, cannot be countenanced, however few the actual instances.
The majority fares no better under the law of the case analysis. In fact, none of the cases upon which it relies actually supports its position.
In Shotwell, the respondents were convicted of tax evasion. The Circuit Court of Appeals for the 7th Circuit reversed their convictions, holding that the admission of evidence they voluntarily disclosed in order to obtain immunity from criminal prosecution violated their privilege against self-incrimination. While the case was pending in the Supreme Court on petition for certiorari, the Government moved for a limited remand to the District Court for further proceedings, in which it proposed to prove, via the testimony of two witnesses who had not previously testified, that the respondents’ earlier testimony was perjured and fraudulent, thus, undermining the appellate’s court decision. Granting the Government’s motion, the Court analyzed the Government’s motion in terms of what would have been allowed had the posture of the case been remand after reversal. It pointed out that, “upon appellate reversal of a conviction the Government ... [may] strengthen its case in any way it can by the introduction of new evidence.” Id. 355 U.S. at 243, 78 S.Ct. at 252, 2 L.Ed.2d at 241. The Court concluded that the Government had made a convincing showing that the respondents’ voluntary disclosures were perjured and fraudulent and suggested that the proffered evidence would have been admissible in that posture of the case. It therefore remanded the case to the district court to give the Government, “in the peculiar circumstances,” “a similar opportunity here.” Id.
Shotwell Manufacturing Co., I submit, at best, stands for the unremarkable proposition that a suppression ruling “should not be construed as binding at a new trial where substantial newly discovered evidence is available.” Id. at 252, 78 S.Ct. at 256-257, 2 L.Ed.2d at 246 (Black, J., dissenting). Although atypical of a law of the case action, the appellate court having remanded the case without making a *441final determination of the issue presented, it nevertheless may be relevant to the point for which the majority uses it, to define the “substantially different” evidence exception. It is clear, however, that it does not support the majority’s interpretation of that exception. The evidence at issue in Shotwell Manufacturing Co. was not known at the time of the initial proceedings; rather, “[i]n support of its motion the Government ... filed with the Court the affidavits ... which they executed after the Government filed its petition for certiorari.” Id. at 239, 78 S.Ct. at 249, 2 L.Ed.2d at 238. Indeed, to the extent that Shotwell Manufacturing Co. addresses the “substantially different” evidence exception, the version it references is antithetical to that which the majority adopts. An allegation of fraud or perjury necessarily involves evidence not known when the testimony constituting the fraud or perjury was given.
Giordenello similarly does not help the majority. There, a federal officer obtained a warrant for the petitioner’s arrest. The complaint on which the arrest warrant was based contained no allegation that the officer had personal knowledge, failed to indicate the source of the officer’s belief that the petitioner was trafficking drugs, and did not set forth any other basis upon which probable cause could be found. The petitioner was arrested pursuant to the warrant and drugs in his possession were seized. The trial court denied the petitioner’s motion to suppress that evidence and the Texas Court of Appeals affirmed. In the Supreme Court, the Government sought to justify the arrest on an alternative basis, which it had not previously argued. The Court refused to consider it, in the process also rejecting the Government’s Shotwell Manufacturing Co. argument:
“The facts on which the Government now relies to uphold the arrest were fully known to it at the time of trial, and there are no special circumstances suggesting such an exceptional course.”
Id. 357 U.S. at 488, 78 S.Ct. at 1251, 2 L.Ed.2d at 1511 (citation omitted). It added, however:
*442This is not to say, however, that in the event of a new trial the Government may not seek to justify petitioner’s arrest without relying on the warrant.
Id.
Emphasizing the latter sentence, the majority concludes that the Government’s new theory could be raised on remand and that facts of which the Government had knowledge when it defended the first suppression motion could be used in support. Because Giordenello specifically authorized consideration of a new theory on remand, it is too broad a reading to “distill” from it a general rule that it is always proper, when an appellate court reverses, to relitigate the issue reversed using a theory not previously litigated.6 Such an expansive reading is also inconsistent with the law of the case doctrine in that it undermines the concept of finality.7 Notwithstanding the majority’s assertion that it “distilled” its holding from Shotwell Manufacturing Co. and Giordenello; it really is a hybrid of the “substantially different” evidence exception, which, as the majority applies it, can only leave confusion in its wake.
The majority also contends that State v. Grosvenor, 402 N.W.2d 402 (Iowa 1987), is “[indistinguishable from the instant matter.” Majority op. at 420. On the contrary, Grosve*443nor is readily distinguishable.8 Notwithstanding that the court used a “substantially different” evidence rationale, the result in that case is more appropriately explained under the “clearly erroneous/manifest injustice” analysis.
In Grosvenor, the defendant was convicted of possession of marijuana with intent to deliver and possession of psilocybin. His convictions were reversed on appeal to the Iowa Court of Appeals, which held that the search warrant, pursuant to which the subject contraband was seized, did not authorize a search of the defendant’s room. That court’s opinion stated that the defendant’s wallet was among items unlawfully seized from that room. The record of the first trial reflected, however, that the wallet was seized incident to the defendant’s arrest; the arresting officer testified, according to the first trial transcript, “After discovery of the marijuana near his room, [the defendant] was placed under arrest by me for the marijuana, and following his arrest I removed from him this wallet containing $877.” Id. at 404. Prior to the second trial, “the trial court reserved ruling on the motion [to suppress], concluding that a fact issue existed concerning where and when defendant’s wallet was taken from his person.” Id. At the retrial, the trial court admitted evidence offered by the State tending to prove that “the defendant’s wallet was not seized from the defendant’s room but was removed from defendant’s trouser pocket in a search of the defendant’s person which occurred outside the residence after his arrest.” Id. The Iowa Supreme Court affirmed. Noting that “the facts before the court upon the second trial are materially *444different from those appearing upon the first,” Id. at 405, it applied the “substantially differeht” evidence exception.
The officer in Grosvenor, did not change his testimony; at best, he merely clarified it. Moreover, and most important, the Court of Appeals—not the prosecutor, and certainly not the arresting officer—misinterpreted the evidence. The record of the first trial was clear, the officer seized the defendant’s wallet incident to his arrest and not from a jacket in the closet in the defendant’s room. As indicated, because the appellate court clearly and erroneously misconstrued the record in the case below it, this case is more readily explained on the “clearly erroneous” exception to the law of the case doctrine.
To be sure, between the reversal and the remand, further investigation may uncover new evidence. The “substantially different” evidence exception to the law of the case doctrine undoubtedly is designed to allow for that contingency. Consequently, the exception must contemplate that “substantially different” evidence and “newly discovered” evidence are one and the same. See Smith Intl.,, Inc., 759 F.2d at 1579; People v. Roybal, 672 P.2d 1003, 1006 (Colo.1983); Ulmet v. United States, 17 Cl.Ct. 679, 693 (1989). Because it does not so treat them, the majority’s interpretation of the exception in this case is erroneous.9
*445No other court has interpreted the “substantially different” evidence exception as the majority does. Not one of the smattering of courts that have employed it has considered a State witness’ testimony that is reconsidered and, therefore, diametrically different from that which he or she gave at the prior proceedings, to be “substantially different,” so as to trigger a reconsideration of the admissibility of previously suppressed evidence. Indeed, most courts have refused to apply the “substantially different” evidence exception when the proffered evidence could have been offered during the first proceedings.
In Smith Intl., Inc., supra., Smith International, Inc. (Smith) filed a complaint against Hughes Tool Company (Hughes), seeking a declaratory judgment that a Hughes patent was invalid. Hughes filed a counterclaim, asserting that Smith had infringed not only the subject patent, but another patent as well. Following a trial, the district court found both of the Hughes’ patents to be invalid. The Court of Appeals for the Ninth circuit reversed on the grounds that Smith had not met its burden of proving Hughes’ patents invalid. The court reinstated Hughes’ patent infringement claim, and remanded the case for further proceedings on the counterclaim. On remand, Hughes’ motion for a preliminary injunction enjoining Smith’s use of one of its patents was denied and Hughes appealed to the Court of Appeals for the Federal Circuit. The court reversed and remanded with instructions to issue the injunction. On remand, Smith moved the district court for partial summary judgment in its favor or to order a separate trial, or, in the alternative, to dissolve the preliminary injunction. Proffering evidence that he claimed was “new evidence,” Smith proposed to prove that Hughes defrauded the patent office to obtain its original patent. The district court concluded “that Smith either was aware of this new evidence or could have discovered it by reasonable diligence before the trial of the case,” id. at 1578, hence “Smith ha[d] no new evidence”. Id. at 1579.
Smith argued, on appeal that “the ground for the exception of the law of the case doctrine is the existence of ‘substantially *446different’ and not ‘newly discovered’ evidence.” Id. at 1579. Affirming, the Court of Appeals for the Federal Circuit observed that the “substantially different” evidence exception serves the same purpose as the “newly discovered” evidence requirement, concluding that, “the district court’s interpretation of that exception furthers the underlying purpose of the law-of-the-case doctrine,” id., “to ‘provide finality to judicial decisions.’ ” Id.
To the same effect is People v. Roybal, 672 P.2d 1003 (Colo.1983), in which the Supreme Court of Colorado refused to allow, in a second proceeding, evidence the prosecutor chose not to use during the first proceeding. In that case, a police officer investigating an automobile accident, in which the defendant was involved, noticed that the defendant smelled of alcohol. After his arrest, the defendant gave a written statement about the collision. He later took a blood alcohol test at the police station. The defendant moved to suppress both the statement and evidence concerning the blood alcohol test. Although the trial court suppressed the statement, ruling, as the defendant had argued, that the smell of alcohol alone did not establish probable cause for arrest, it admitted the blood alcohol test. Id. at 1004. The former ruling was affirmed on the State’s interlocutory appeal. Id. On remand, the defendant again moved to suppress the blood alcohol test, arguing, this time, that it was the product of an illegal arrest.10 Without objection, and, in fact, agreeing that an evidentiary hearing on the issue was appropriate, id., the prosecutor countered by offering testimony not offered at the first suppression hearing to prove that there was probable cause for the arrest. The trial court refused to consider it, reasoning that the Supreme Court’s previous ruling was the law of the case. The Supreme Court affirmed, stating:
*447[T]he only explanation the prosecution offers as to why these witnesses were not brought forward at the first hearing is that it did not anticipate that the trial court would rule that there was no probable cause. The amount of the available evidence that the prosecution elects to present at a suppression hearing is left to the district attorney’s discretion. However, unless suppression hearings are to be conducted “by installment,” as the trial court put it, the prosecution must be prepared to abide the consequences of an adverse ruling when it elects not to offer available probative evidence.
Id. at 1006. In a footnote, the court acknowledged the “substantially different” evidence exception, distinguishing between evidence that was available at the first proceeding, and “newly-discovered” evidence:
If the prosecution had proffered newly-discovered evidence, the result might be different. A trial court may reconsider its own suppression order when there is new, probative evidence available and the prosecution shows good cause why that evidence was not introduced previously. 3 W. LaFave, Search and Seizure, § 11.2(f) at 527 (1978). Even where a trial court’s suppression order has been affirmed on interlocutory appeal, we believe that in appropriate circumstances newly-discovered evidence could justify the trial court’s reconsideration of its earlier ruling. Here, however, the evidence that the prosecution now wishes to adduce was available at the first hearing, but the district attorney made a tactical decision not to present it.
Id., n. 7 (emphasis added). See also Ulmet v. United States, 17 Cl.Ct. 679, 681 (1989), in which the court reasoned that “the ‘substantially new’ evidence exception appears to contemplate a situation in which a case is remanded to the lower court and new facts are developed following the remand, after which, on further appeal, the appellate court changes its original opinion based on the new evidence.” Id. at 693.
In this case, the State lost the suppression hearing on appeal because the evidence it stipulated to did not support *448the legal theory it argued. It now asks us to sanction the reconsideration of the admissibility of that evidence on the basis of a new legal theory, not previously used, based upon facts that, far from being newly discovered, should have been fully known at the time of the first proceedings, but which both the investigating officer and prosecutor, for no reason other than neglect, allegedly misconstrued. The correction of its former evidence, we are told, is a sufficient basis on which to support the finding that the record on remand is substantially different. That the intermediate appellate court in Tu II, “did not declare the items to be inherently and generically inadmissible,” and the mandate did not specifically state that they were, are seen as additional support for this position.
We have already seen that this approach is directly contradicted by the manner in which most courts view the “substantially different” evidence exception. Conceding, however, that the record in this case is rendered different by the change of testimony, it. certainly is not “substantially different.” The record on remand is based on the same evidence as formerly presented. The contested items are the same. The witnesses are the same. All that has changed is the testimony of a witness.
No exception to the law of the case doctrine covers this situation. The majority simply creates an exception to the exception under which the State is rewarded for its incompetence and negligence. It also provides fertile ground for perjury. It is clear that the State should have known that the items were seized by the Las Vegas police, incident to the petitioner’s arrest, rather than in plain view in his motel room. As such, the State should be treated as having chosen not to use available evidence. It has been held that “[a] departure from the law of the case was not warranted when the plaintiffs intentionally had chosen not to use the “new evidence” at trial.” Baumer v. U.S., 685 F.2d 1318, 1321 (11th Cir.1982). I would submit that a departure from the law of the case is not warranted when a litigant should have known of pertinent facts, did not present them, and cannot show good cause why they were not introduced previously.
*449Under such circumstances, the “substantially different” evidence standard is simply not met. The holding in this case increases the likelihood, significantly, I submit, that, in subsequent cases, remanded after reversal for failure to suppress evidence, perjured testimony will be proffered as the basis for, in effect, reversing the appellate decision.
The petitioner argues that the “mandate rule”11 precludes the admission of the contested items. That argument is not without merit. The “mandate rule,” generally provides that “what remains within the power of decision of the court after remand depends ... on the scope of the mandate.” Moore ¶ 0.404[10], at 11-61. Id. The petitioner asserts that, unless the mandate specifically reserves the right of the State to proceed on an alternate theory, the State is precluded from relitigating the suppression issue. Like the State, which believes that a specific reservation adds nothing to the usual operation of the rule, he relies on State v. Edwards, 214 Conn. 57, 570 A.2d 193 (1990), and United States v. Eubanks, 591 F.2d 513 (9th Cir.1979). The majority concludes that “the rule advocated by the State is better,” Majority op. at 423, thus overlooking significant and critical factors.
Ordinarily, the admissibility of “newly discovered”, “substantially different” evidence is determined by the appellate mandate. “While a mandate is controlling as to matters within its compass; on the remand a lower court is free as to other issues.” Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 781, 83 L.Ed. 1184 (1939). It is, therefore, critical that the issues decided by the appellate court are known. See Chayt v. Board of Zoning Appeals, supra., (If the order departs from the mandate either by allowing more or less than contained in its terms, it is illegal *450and subject to review by the court); Schapiro v. Baltimore Trust Co., 143 Md. 50, 53, 121 A. 849, 850 (1923) (“The principal question presented at the threshold of the case is whether the decree of the lower court * * * conforms to and is in accordance with the opinion and mandate of this Court on the former appeal. If so, it is the law of the case binding and conclusive upon this Court, the court below, and all parties in subsequent proceedings in the same case, and cannot be disregarded by us”). See also Wheeler v. Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir.1984); Seese v. Volkswagenwerk, A.G., 679 F.2d 336, 337 (3rd Cir.1982); Cleveland v. Federal Power Comm’n, 561 F.2d 344, 346 (D.C.Cir.1977).
As we have seen, the majority and the petitioner read those cases in which the appellate mandate expressly authorizes what can be introduced on remand quite differently. See Edwards, 570 A.2d at 203; Eubanks, 591 F.2d at 521. While the majority says they simply state what would be admissible under an exception to the law of the case doctrine, the petitioner maintains that the absence of an enabling mandate absolutely precludes the trial court from reconsidering the factual underpinnings of the previously decided issue, that, in other words, no additional evidence may be considered. I reject both approaches. The law of the case is not implicated when the .mandate itself authorizes the introduction of additional evidence or reliance on an alternate theory. On the other hand, the absence of an enabling mandate or any implication that can be inferred from the mandate,12 means only that the exceptions to the law of the case doctrine apply—that, for example, a threshold showing that the proffered evidence is newly discovered and, therefore, substantially different, must be made.
In this case, the intermediate appellate court reversed the judgment of the circuit court and remanded the case for a new *451trial. Because its mandate did not authorize a relitigation of the suppression issue, the law of the case doctrine applied; the State had to demonstrate the applicability of an exception to the doctrine if it hoped to gain admissibility of the suppressed evidence. The State did not even attempt to show that its proffered new legal theory was based upon “newly discovered,” “substantially different” evidence, or fell within another of the exceptions, nor could it. And as we have shown, neither has the majority been able to fit this case within the “substantially different” evidence exception. Hence, the circuit court’s reconsideration of the admissibility of the subject evidence was error, being violative of the holding in Tu I.13
*452The majority asserts that “a rule that would preclude correction on remand of inaccuracies in the facts at the first trial, unless the appellate court expressly permitted that to be done, is unworkable from the appellate standpoint.” Majority op. at 423. On the contrary, what is unworkable is a rule that would allow alleged factual inaccuracies to be corrected simply because the moving party “made a mistake.” The potential for the use of fraud in an effort to reverse an appellate mandate is tremendous. That is the effect of the majority’s holding. It will open up a Pandora’s box of increased litigation as to the scope of remand. Litigants will be encouraged to scan appellate opinions for new legal theories to be raised on remand and those so inclined will not be above “supplying” or manufacturing the facts to support them.14
Of course, a litigant, on remand, may bolster his or her case. It is true that witnesses may be more comfortable and may make better witnesses the second time around; their recollections may be more lucid. As indicated, new evidence may also become available. On the other hand, a litigant should not be allowed to use substantially the same evidence, in substantially the same way, when the effect and purpose is to circumvent an appellate decision. Therefore, the circuit court erroneously admitted the custodial items into evidence.15 I would reverse the judgment of the Court of Special Appeals.
. The majority refers to the six items the State contends were seized by the Las Vegas police incident to Tu's arrest and subsequently inventoried by its property custodian as the "custodial items.” They include: "(1) a business card for a Las Vegas restaurant, the Silver Dragon; (2) a Keno card; (3) a greeting card, reading on the outside, "You’ve got everything that I like,” and on the inside, ‘Good equipment and bad intentions,' together with that card’s envelope addressed from Tu to a female other than Mrs. Tu; (4) a card with the name Dennis Shostack and a telephone number on the reverse side; (5) Tu’s passport; and (6) a laundiy ticket, bearing control number 2042, but not identifying the issuing business, issued to a person ‘Wong,’ and indicating the charge would be $1.15.” Majority op. at 411-412. It should be noted, however, that the testimony at the first trial, and “the evidence at the suppression hearing, indicated that they were in a briefcase which was seized from Tu’s motel room.
The seventh item is a laundiy ticket bearing control number 2011 as to which there is no dispute that it was seized from the petitioner’s motel room.
. The State has never denied that it so stipulated. Indeed, as evidenced by the following colloquy, it seems to admit that it did:
Mr. Wolf: "In fact, Mr. McCarthy stipulated that those items came from the hotel room at the prior hearing. And stipulations, as we have talked about today, are binding in this case.
*431Mr. McCarthy: "... I don’t believe I ever did present the Court with a copy of my memorandum on the stipulations, but I will give you that ... But in any case, I would indicate that whenever it comes to stipulations, this is on page three of that particular memorandum, and I think this is basically black letter law, as can be seen by reviewing the law, when there is an allegation of mistake in position of surprise, stipulations are not binding as a matter of law.”
Moreover, the transcript of the first suppression hearing supports this construction of what occurred. When, at the first suppression hearing, defense counsel attempted to cross examine Officer Turner regarding “anything that was found as a result of an investigation taken after seizing the petitioner’s phone book,” the State interrupted and proffered that the items were not seized incident to Tu's arrest, as defense counsel’s examination had suggested. It insisted, referring in particular to the greeting card, the Dennis Shostack card, and the Silver Dragon restaurant card, that the items were located in Tu’s briefcase, which was seized pursuant to the warrant. Defense counsel accepted the proffer. Officer Turner then confirmed the accuracy of the proffer.
I gather from footnote 5 of the majority’s opinion that the majority’s rejection of the petitioner’s and my contention that the State stipulated to the items seized and their location when seized is based on the fact that Turner was on the witness stand when the State made its proffer and that Turner later confirmed the proffer at the petitioner’s request. The majority does not take into account the fact that, prior to Turner’s confirmation, defense counsel accepted the State’s proffer. It is elementary that a proffer is an offer of proof, which, if accepted, obviates the need for the proponent to offer testimony or other evidence on the issue to which the proffer relates. A stipulation, on the other hand, includes an agreement between opposing counsel concerning what should constitute the evidence at trial. Clearly, an offer of proof, when accepted, becomes a stipulation. Whether or not Turner’s confirmation of the State’s proffer constitutes his testimony, it does not change the fact that the State stipulated to the items seized and their location when seized.
. Officer Turner testified that Officer Thomson, another Maryland investigating officer, photocopied both a property custodian's inventory list and Tu's papers and documents that were being held in the custody of the Las Vegas authorities. He further stated that when Tu was returned to Maryland, the Nevada authorities transferred the custody of Tu's belongings to them. Officer Turner then testified that, "I looked at the photocopies and saw that the Silver Dragon card was photocopied, saw that the greeting card was photocopied, and some other things were photocopied as well, which led me to believe that my testimony initially had been an error, and these items were in fact from Mr. Tu’s personal property as opposed to being from the proceeds from the search warrant of his room at the El Rancho Hotel.” Officer Thomson corroborated this testimony.
. Contrary to the prosecutor’s suggestion made during argument that Officer Turner had testified mistakenly only with regard to two of the items of evidence, on cross-examination, Turner, himself, testified that his prior testimony was that all of the disputed items came from the petitioner's motel room.
. The majority does not take account of the fact that a litigant may, and should, if feasible, present alternative theories of admissibility at a suppression hearing. Indeed, the litigant who chooses to place all of his or her eggs in one basket, may be barred from using an alternative theory at a subsequent hearing. See Loveday v. State, 296 Md. 226, 229, 462 A.2d 58, 59 (1983) ("neither the question decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal”); Fidelity-Baltimore Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367, 372, 142 A.2d 796, 798 (1958) (“We forbade the parties, on any subsequent appeal of the same case, to raise any question that could have been raised in the previous appeal”). Adopting the majority’s approach would potentially greatly expand the appellate process, a result the law of the case doctrine strives to avoid.
. The proviso in that case does not necessarily refer to the ground the Government sought to raise on appeal. On remand, the Government is, of course, free to strengthen its case with other evidence, not only that to which the Court specifically referred in the opinion. Moreover, the fact that a defendant’s arrest may be proven to be legal does not mean that the evidence previously suppressed thereupon is admissible. In Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the Court specifically declared the evidence suppressed; conspicuously, it did not state that the suppressed evidence could subsequently be admitted, after reconsideration of the arrest issue, which it also specifically authorized, on remand.
. In United States v. Salazar, 805 F.2d 1394, 1400 (9th Cir. Cal.1986), like in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the court specifically authorized the trial court to reconsider the admissibility of the previously suppressed evidence on an alternative, and not previously litigated, theory.
. In that case, the law of the case test applied was the "doctrine does not preclude consideration of issues that could have been, but were not, raised in the first appeal.” State v. Grosvenor, 402 N.W.2d 402, (Iowa 1987). That is not the Maryland test. See Loveday v. State, 296 Md. 226, 229, 462 A.2d 58, 59 (1983) ("neither the question decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal”); Fidelity-Baltimore Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367, 372, 142 A.2d 796, 798 (1957) ("We forbade the parties, on any subsequent appeal of the same case, to raise any question that could have been raised in the previous appeal ... ”).
. ■ The majority also does not heed the admonition that "[an] appellate court should reconsider a point of law previously decided on a former appeal only as a matter of grace, and not as a matter of right.” In re Adoption of Baby Girl "C", 511 So.2d 345, 349 (Fla.Dist.Ct.App.2d Dist.1987) (quoting Strazzula v. Hendrick, 177 So.2d 1, 4 (Fla.1965)). A party ought not be able to reserve for presentation, on sequential appeals, as many legal theories as it has or as it may be able to hypothesize. "Because application of any of these exceptions of the law of the case doctrine could alter the results of the decision of the appellate court, [it must follow that] exceptions should be narrowly construed and only utilized when the situation, specifically and unequivocally or unquestionably requires an exception’s application.” Ulmet v. United States, 17 Cl.Ct. 679, 681 (1989). Consequendy, courts that have applied the exceptions to the law of the case have done so only in the rarest of circumstances.
. Initially the defendant sought suppression on an alternative basis: he asserted a due process deprivation because the blood samples had been destroyed and contended that the evidence was inadmissible due to lack of consent. People v. Roybal, 672 P.2d 1003, 1004 (Colo.1983).
. Black’s Law Dictionary defines mandate as:
“A precept or order issued upon the decision of an appeal or writ of error, directing action to be taken, or disposition to be made of [a] case, by [an] inferior court. Official mode of communicating judgment of appellate court to lower court, directing action to be taken or disposition to be made of cause by trial court” Blacks Law Dictionary, 962 (6th ed. 1990).
. The majority fails to point out that any implication that can be logically inferred from a mandate may also bar subsequent litigation on the subject. See Pincus v. Pabst Brewing Co., 752 F.Supp. 871, 873 (E.D.Wis.1990) (Issues decided either expressly or by necessary implication will be binding on remand and on subsequent appeal).
. In an effort to reconcile the disparity of its holding with the mandate rule, the majority also attempts to distinguish the case sub judies and Korotki v. Springer, 218 Md. 191, 145 A.2d 767 (1958), a case upon which Tu heavily relies. In Korotki, the Court recognized and left open the possibility of "something in the nature of a bill of review ... for newly discovered evidence or perhaps for fraud, even after affirmance in whole or in part,” Id. at 194, 145 A.2d at 768; however, it made clear that, when the case has been reversed and remanded, "the order entered by [a] court in remanding [a] case, and the opinion ... on which said order is passed, shall be conclusive as to the points finally decided thereby. In such an order remanding a case, [the] court will express the purpose for so remanding and in its opinion filed with said order will determine all questions which may have been properly presented.” Id. at 769. The majority reasons that Korotki is distinguishable because the Korotki court’s mandate, "properly interpreted, had not left open any issues of liability”, while "[t]he mandate in the instant matter is not so limited.” Majority op. at 427. That is not a valid distinction.
The mandate in Korotki required "further proceedings not inconsistent with this opinion.” The Court rejected the appellants' “contention ... that the chancellor erred in declining, prior to the entry of the decree, to hear evidence proffered by the appellants, and alleged to have been newly discovered.” It reasoned that, because “[t]he general effect of the proffer was to disprove the facts found by this Court on the previous appeal, to rebut and discredit the testimony [at the first trial] and to show ... perjury and [subornation ofj perjury,” it violated the law of the case doctrine. Id. at 193, 145 A.2d at 768. The holding in Korotki, then, is much broader than the majority wants to admit. Although in Tu I, the mandate simply stated, "Judgment Reversed,” the last sentence of the section of the opinion discussing the suppression issue was clear as to what was contemplated, “a new trial.” Applying the Korotki rule, that mandate certainly does not sanction the retrial of the suppression issue, which the Court, on appeal, clearly decided. If the issue left open by the Court—whether review might be had upon a *452showing of newly discovered evidence or fraud.—-were resolved favorably to the State, it becomes important that it has proffered neither newly discovered evidence nor fraud.
. The majority stresses the fact that the trial judge believed Officer Turner's change in testimony: "The circuit court at the second suppression hearing found 'that the State’s position prevails in this case, and the items as requested will be received at trial,’ thus necessarily finding Turner’s testimony at the second suppression hearing to be the fact of the matter.” Majority op. at 414. That is not a sufficient answer. What is at stake here is the integrity of the trial process. That can only be assured by adherence to precedent and to the rules which assure fair trials, including finality of judgments.
. Rather than decide the merits of the petitioner's challenge to the admission of a laundry ticket taken from the petitioner’s motel room on a "more specific factual explanation for applying plain view,” Majority *453op. at 428, the majority relies on "harmless error.” Given my view of the matter, I would hold that the laundry ticket was barred by the law of the case doctrine. Moreover, for the reasons I have previously stated, most notably in Rubin v. State, 325 Md. 552, 591, 602 A.2d 677, 696 (1992) (Bell, J., Dissenting), its admission into evidence was far from harmless.