dissenting:
It is fascinating (and somewhat disquieting) to observe how, at the same time, mesmerized deference to legal precedent can defy such precedent. We routinely speak of a “two-part inquiry” that a defendant must satisfy “in order to prevail on a motion to suppress identification.” First we say, that a defendant must establish that the identification procedure was “unduly (or impermissi-bly) suggestive.” Second, we say that a defendant cannot prevail if the “totality of the circumstances” shows “that the identification was nevertheless reliable.” (Citing Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), and Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)). I do not—I could not—question the soundness of this precedent as a general proposition, especially when applied to post-conviction appeals. I write this “purported” dissent because, in the posture of the instant case, I am disturbed about the conflicting signals that we are giving trial judges with regard to a “sequential” “two-prong test,” when today my colleagues broadly declare, “In short: if no undue suggestivity, no suppression—period—without regard to reliability.” See also United States v. Hunter, 692 A.2d 1370 (D.C.1997). Therefore, under the factual pattern of the record before us, I would not reverse, but remand the case to the trial court in order that she might say the magic words, “I find that there was ‘undue suggestivity’ in the identification procedure” (a conclusion which I read the record as supporting), before re-entering her finding of unreliability (which likewise is supported).
Let me restate the posture of this ease: this is a pretrial appeal brought by the government to reverse a trial court’s suppression of an accused’s identification. While the government, unquestionably, has the right to appeal the trial court’s suppression of evidence (see D.C.Code § 23-104(a)(1) (1996)), obviously it does not have an automatic right to reversal. Recognizing therefore that we are bound by the trial court’s factual findings, see United States v. Walton, 411 A.2d 333, 336 (D.C.1979) (where, in an appeal by the government from the granting of a motion to suppress, we affirmed “although we might have arrived at other conclusions from this evidence than did the trial court”), the government urges that the court applied the wrong legal standard in suppressing the identification. Relying essentially on ease law involving post-trial appeals by convicted defendants, the government argues that the trial court must have found first that the police conduct, in establishing identification, *765was unduly suggestive before it could find (as it did) that the identification was unreliable; therefore, in failing to follow this sequence, the court, in finding unreliability, was usurping the function of a yet-to-be sworn jury in violation of constitutional due process. I have difficulty with this analysis for several reasons.
In the first place, I do not read the record as showing that the trial court did not decide the issue of suggestivity. Rather a knowledgeable trial court was parroting what appellate courts have uniformly recited (ie., that there is inherently a degree of sugges-tivity in all single show-ups) before pointing out that the suggestivity here was not “fatal”—a latter remark that I construe as indicating her sensitivity to the fact that, even if this suggestivity was beyond the bounds of acceptable police conduct, that did not end the inquiry because “reliability” was the “central question” or “the linchpin” in determining the admissibility of identification testimony.1 Biggers, supra, 409 U.S. at 199, 98 S.Ct. at 382; Brathwaite, supra, 432 U.S. at 114, 97 S.Ct. at 2253. The court’s comments, as well as her questions, were indicative of her assessment that Mr. Brown’s identification (as the tallest man in a holding or processing area of a cellblock) was not only unduly suggestive, but likewise unreliable under the circumstances leading to that identification.2
Second, while we have held (in a case of first impression) that if a police procedure is not unduly suggestive, a trial court did not abuse its discretion when it delayed (at the government’s request, and over the objection of a defendant), the finding of reliability until after a victim testified at trial,3 we have encouraged trial judges, even when finding no suggestivity, to make explicit reliability findings. Greenwood, supra note 3, 659 A.2d at 828. More recently, in Williams v. United States, we had this to say:
We take this opportunity to reiterate that it is in the best interest of the government and the defense, and also conducive to the efficient administration of justice, that the trial court rule on the reliability of an identification even when it does not find that there was undue suggestivity. We strongly suggest once more that if the identification process is called into question the trial court should rule on both aspects of the inquiry as a matter of course.
Williams v. United States, 696 A.2d 1085, 1086 (D.C.1997) (emphasis added) (citing Greenwood, supra note 3, 659 A.2d at 828, and Henderson v. United States, 527 A.2d 1262, 1269 (D.C.1987)).
In the Williams case, we held (in the post-trial review of the defendant’s conviction) that the record supported the trial judge’s ruling that neither a photo array nor the line-up was “so impermissibly suggestive as *766to give rise to a very substantial likelihood of irreparable misidentification.” Id. Are we today telling the trial judges that in the absence of a showing of undue suggestivity, they cannot deal with the reliability inquiry unless they are prepared to find reliability (as opposed to unreliability)?
Mr. Brown has not yet gone to trial. He was afforded due process at the pre-trial stage when the government was given the opportunity to prove, that despite police activity which (in view of our differences today as to the record, may or may not have been “unduly suggestive”), was nevertheless reliable on the “totality of circumstances”—facts particularly within the knowledge of the government. The government failed to meet that burden.
Nevertheless, I would remand the record to the trial judge to permit her to clear up any ambiguity as to her findings on the issue of undue suggestivity.
.Thus here the trial court explained:
The suggestivity is not fatal under the circumstances of this case. That’s why it’s a two-prong test because there must be inherent reliability after we go past suggestivity because the identification fails, and what exactly is this court supposed to look at in determining whether or not the identification fails?
The trial court, thereafter, went to the "totality of circumstances,” beginning with "the opportunity to view,” and the fact that appellant was charged with carrying a pistol that no one ever saw until it was thrown from a speeding automobile from the opposite side of the cramped area where appellant was seated. At this time, the court knew from government representations that the gun did not bear the fingerprints of appellant but those of another tall passenger in the car who was arrested but "no papered” along with the remaining four passengers, none of whom were photographed (as was appellant).
The trial court noted, "The issue is not so much that they can identify [appellant]. The issue is whether they can identify him as the perpetrator—the guy with the gun.”
. Indeed this court has held that even unnecessarily suggestive procedures will not support an automatic bar to in-court testimony. Such testimony is not to be suppressed if the trial court finds that under "the totality of circumstances” the identification was reliable. See Middleton v. United States, 401 A.2d 109, 133 (D.C.1979) (quotations and citations omitted). See also Brath-waite, supra, 432 U.S. at 106, 97 S.Ct. at 2249. Cf. Allen v. United States, 697 A.2d 1 (D.C.1997).
. The trial court observed, “If I am not required to make those determinations at the motions hearing, then I obviously retain some discretion to defer when I am going to make them and I am exercising that discretion.” Greenwood v. United States, 659 A.2d 825, 828 (D.C.), cert. denied, U.S. -, 116 S.Ct. 326, 133 L.Ed.2d 227 (1995).