Rose v. United States , 629 A.2d 526 ( 1993 )

FERREN, Associate Judge:

After his convictions for distribution of cocaine and possession with intent to distribute, D.C.Code § 33 — 541(a)(1) (1988 Repl.), appellant seeks review of the trial court’s denial of his motion to suppress tangible evidence and an out-of-court identification. He argues that the trial court should have excluded this evidence because the police obtained it as a result of a war-rantless entry into his aunt and uncle’s apartment. The government replies that appellant lacks standing to object to the warrantless entry. We conclude that the record requires us to hold that appellant has standing. It follows on this record — as the government concedes — that the evidence must be suppressed.¹

I.

According to the government’s evidence,² the circumstances of appellant’s arrest were as follows. At about 6:00 p.m. on May 1, 1990, Officer Rene Davis of the Metropolitan Police Department, working undercover, saw appellant come out of an apartment building and walk toward another at 3253 23rd Street, S.E.³ Officer Davis signalled to appellant that she wished to purchase rock cocaine. Appellant motioned to her to approach. Officer Davis did so and asked appellant if she could buy two $20 pieces of rock cocaine. Officer Davis and appellant then went into the 23rd Street apartment building where, on the landing between the second and third floors, the officer gave appellant $40 in prerecorded bills in exchange for two plastic bags of rock substances. While this transaction was taking place, a door opened to apartment 24 on the second floor, and a woman asked appellant if he wanted her to leave the door unlocked. He said no. Officer Davis then asked appellant whether he would still be there if she came back in five minutes, to which appellant replied that he would either be “out here” or in the apartment where the woman was. He also told Officer Davis that, because he had a key, he did not know why the woman had asked him if he wanted her to leave the door unlocked. Officer Davis then returned to her car and radioed to an arrest team, reporting that she had just made a drug purchase and describing the seller⁴ and where he could be found.

Two members of the arrest team, Officer Calvin Jones and Sergeant Joseph Zovak, then entered the apartment building and, not seeing the subject in the hallway, knocked at the apartment indicated by Officer Davis. According to Officer Jones, a woman⁵ answered the door, and Sergeant Zovak announced that they were police officers looking for a suspect in relation to a narcotics offense. There is no indication in the record that the officers ever obtained or displayed a warrant either to arrest appellant or to search apartment 24. Officer Jones testified that the woman opened the door, stepped back, and said “Okay,” admitting the officers into the apartment. As the officers crossed the threshold, they saw appellant walking into the living room. They approached appellant, detained him, and patted him down, finding nothing. They then escorted him outside the apartment to the street, where Officer Davis, riding by, identified appellant as the person who had sold her the cocaine. Appellant was placed under arrest, and Officer Green, the transport officer, searched him, finding a ziplock bag containing a piece of rock cocaine in appellant’s pants pocket.

Appellant did not testify at trial, but at the suppression hearing he gave the following account. After returning home from work he had gone to the store. On his way back from the store he passed by his aunt’s apartment at 3253 23rd Street on the 22nd Street side; she was in the window and asked him for a cigarette. Appellant went up to her apartment and began talking with his aunt and uncle there. Appellant stated that he did not make it “a habit” to go over to his aunt’s, but he did “check on” his uncle and aunt “once or twice a week.” A minute or thirty seconds after he arrived at the apartment there was a knock on the door. Appellant testified that he opened the door and that police officers appeared with handguns and shotguns. The officers did not display any warrant, nor did they request permission to enter the apartment, although they did identify themselves as police. They pushed their way inside the apartment, and one man grabbed appellant by his shirt, shoved him up against a wall, proceeded to search appellant’s pockets and socks, and then opened and dropped appellant’s pants. One of the officers told appellant he was not under arrest but asked him to walk outside. The officer then escorted appellant outside the apartment building while holding onto him by the back of his pants.

Appellant’s uncle, Samuel Rose, testified both at the suppression hearing and at trial. He said that he lives with his sister Betty Jean Mack, appellant’s aunt, at 3253 23rd Street, S.E. He added that appellant visited the apartment every other day, or once or twice a week. Rose also testified that he visited appellant at the home of appellant’s mother, where appellant lived. Rose confirmed that appellant had opened the door when there was a knock and that the police officers then rushed in, pinned appellant against the wall, and searched him, dropping appellant’s trousers.

The trial court denied appellant’s suppression motion. The court credited appellant’s testimony that appellant, not a woman (as Officer Jones had testified), had answered the door when the police knocked. The court did not make any finding as to whether appellant or anyone else had consented to the officers’ entry into the apartment. The court did find, however, that the “combination of [the] description [given by Officer Davis] as well as the physical location [was] more than enough to establish probable cause.” The court also found that there were exigent circumstances, not in the sense that there was imminent danger, but insofar as the police needed to prevent destruction of evidence and make an identification, because “the police don’t know who this guy is.” The court ruled that under these circumstances the police, upon seeing appellant across the threshold, had probable cause or at least reasonable suspicion that justified taking appellant into custody. Moreover, the court “seriously questioned] the [appellant’s] having any standing about being hauled out of his aunt’s home under those circumstances,” although the court did not make a formal finding as to whether appellant had standing to object to the warrant-less entry. Finally, the court concluded that even if there had been an unlawful arrest, the subsequent identification procedure was not tainted because the undercover officer had had plenty of opportunity to observe appellant.

II.

A.

We note at the outset that on appeal the government has abandoned any claim that the detention and search of appellant in his aunt and uncle’s home was justified by exigent circumstances, as the trial court ruled. Nor has the government renewed on appeal its claim, which the trial court did not address, that everyone concerned had consented to the warrantless entry.⁶ Furthermore, the government acknowledged at oral argument that if appellant had standing to challenge the officers’ war-rantless — and thus illegal⁷ — entry, then the subsequent seizure and ride-by identification of appellant, as well as the plastic bag of cocaine found upon appellant, would be tainted by the illegality of the entry and thus would have to be suppressed.⁸ The government, therefore, has chosen to rest its argument in support of the trial court’s ruling solely on the proposition that appellant lacked standing to object to the officers’ warrantless entry.⁹

As we noted above, the trial court did not make factual findings or explicitly rule on the issue of appellant’s standing. The trial court’s failure to consider appellant’s standing in more detail, however, may have been due, at least in part, to the government’s failure to contest standing at the outset. Although appellant, in his motion • to suppress, alleged that he had “standing to challenge the legality of the entry,” the government’s opposition did not contest standing. Indeed, the government did not even mention standing until the prosecutor did so briefly in oral argument at the end of the suppression hearing. Defense counsel at that point indicated she had understood the government was conceding the issue—an understanding that may have caused counsel to fail to present additional evidence.

The question, then, is whether we can rule on the standing issue on this record. In principle, of course, the trial court—not the appellate court—finds facts. But this court may rule on the standing issue as a matter of law, even if the trial court has not made essential findings of fact, if the evidence of standing is sufficient and uncontroverted. See Martin v. United States, 567 A.2d 896, 902 (D.C.1989), appeal after remand, 605 A.2d 934 (D.C.), cert. denied, — U.S. -, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992). That is the case here. Before looking at the evidence, however, it is necessary to inform the analysis by reference to the applicable law.

B.

Standing to object to a search or seizure as a violation of constitutional rights “depends on whether the' person claiming the protection of the Fourth Amendment ‘has a legitimate expectation of privacy in the invaded place.’ ” Lewis v. United States, 594 A.2d 542, 544 (D.C.1991) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978)), cert. denied, — U.S. -, 112 S.Ct. 1225, 117 L.Ed.2d 460 (1992). “‘A subjective expectation of privacy is legitimate if it is one that society is prepared to recognize, as reasonable.’” Id. (quoting Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 1687-88, 109 L.Ed.2d 85 (1990), omitting other citations and internal quotation marks). Such an expectation need not be limited strictly to the confines of a person’s home, temporary or otherwise, in order to be reasonable. See Olson, 495 U.S. at 96 n. 5, 110 S.Ct. at 1688 n. 5.

In Martin, 567 A.2d at 902-03, we concluded that a part-time resident of his grandparents’ home had a protected privacy interest in that home. More recently, the Supreme Court held in Olson that an overnight guest had a legitimate expectation of privacy in the premises, sufficient to give him standing to challenge a warrant-less entry and arrest. We did not intend our ruling in Martin, nor do we understand the Supreme Court’s holding in Olson, to mean that overnight guest status, at the very least, is a sine qua non of standing to challenge a search or seizure in a residence other than one’s own home. It remains true, of course, that in order to establish standing to challenge a search or seizure, a visitor in another’s home bears the burden of showing that the visitor had a reasonable expectation of privacy in that home. See Prophet v. United States, 602 A.2d 1087, 1091 (D.C.1992). But being an overnight guest is not the sole means by which a guest may satisfy that burden.¹⁰ In this case, therefore, we cannot say as a matter of law that appellant lacked standing to object to the officers’ warrantless entry simply because he never claimed that he had been an overnight guest in his aunt and uncle’s apartment.

There is other evidence in the record sufficient to establish that appellant had a reasonable expectation of privacy in the premises. First, it is uncontested that this apartment was the home of appellant’s close relatives, his aunt and uncle. Second, appellant testified, and his uncle confirmed, that appellant regularly visited his aunt and uncle — “once or twice a week.” This, again, is uncontested. Third, the government sponsored testimony by Officer Davis, both at the suppression hearing and at trial, that appellant said he had a key to the apartment.¹¹ Neither at trial nor at the suppression hearing did the government attempt to negate or qualify that statement through further questioning. of Officer Davis, appellant, or appellant’s uncle. We recognize, of course, that the statement is hearsay, but since it was admitted in evidence without objection or qualification by the government, a court may consider it and accord it full probative value.¹² Given the facts that the government sponsored this testimony twice, and that there is no contrary evidence, we conclude that the only reasonable inference to be drawn from this evidence is that appellant indeed had a key to the apartment.

Furthermore, the fact that the apartment belonged to appellant’s close relatives, coupled with the facts that he was a regular visitor and had a key, compel any reasonable finder of fact to infer that appellant had his aunt’s and uncle’s permission to enter the apartment as he wished, day or night, that he could therefore expect to use it as a place of refuge, and that appellant was in a position to admit or exclude someone from the apartment.¹³ Appellant’s status in his aunt and uncle’s home, therefore, was considerably more than that of a casual visitor, distinguishing his situation from that of a mere party guest, as in Lems, or that of an adolescent visiting the home of one of his friends, as in Prophet. See supra note 10.

Taken together, these three factors — appellant’s close kinship with the owners of the apartment, his regular visits, and his possession of a key — generate essentially the same expectations the Supreme Court found in the situation of an overnight guest:

That the guest has a host who has ultimate control of the house is not inconsistent with the guest having a legitimate expectation of privacy. The house-guest is there with the permission of his host, who is willing to share his house and his privacy with his guest. It is unlikely that the guest will be confined to a restricted area of the house; and when the host is away ..., the guest will have a measure of control over the premises. The host may admit or exclude from the house as he prefers, but it is unlikely that he will admit someone who wants to see or meet with the guest over the objection of the guest.

Olson, 495 U.S. at 99, 110 S.Ct. at 1689.¹⁴ We therefore conclude that appellant had a subjective expectation of privacy in the premises that was reasonable and legitimate; consequently, he has standing to move for suppression of the evidence attributable to the warrantless entry.

Given the government’s concession that the evidence must be suppressed if appellant has standing to make the motion, see supra note 8 and accompanying text, we must reverse the judgments of conviction and remand for a new trial, if the government so desires, without the tangible and identification evidence attributable to the warrantless entry.

III.

Because our dissenting colleague reaches the merits issue, we feel obliged to say more fully why we believe this court ought not to do so.

A.

In appellant’s brief, counsel first argued lack of exigent circumstances (the basis for the trial court’s ruling validating the war-rantless entry). The government, in its answering brief, said “it does not renew the exigent circumstances argument on appeal.” Appellant’s counsel then argued lack of consent. The government did not reply, either in its brief or at oral argument. See supra note 6. Finally, appellant’s counsel contended that the police lacked probable cause, or even reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to seize appellant until after the police had illegally entered the Rose apartment without a warrant. It follows from this illegal entry, said appellant’s counsel, that under Bryant v. United States, 599 A.2d 1107 (D.C.1991), the identification evidence and the later-seized cocaine should have been suppressed. The government elected not to challenge appellant’s Bryant analysis and thus, for purposes of this appeal, effectively conceded the suppression motion in the event we were to rule appellant had standing to argue it. See supra note 8.

The government’s only merits argument, therefore, assumed that appellant lacked standing to challenge the warrantless entry. See Appellee’s Brief at 26. The government accordingly argued that the seizure of appellant in the apartment was not unlawful, very simply, because the police, upon seeing appellant, at least had reasonable suspicion under Terry to seize, remove, and detain him for identification, after which they had probable cause to arrest, search, and seize cocaine from him. The government, therefore, has not presented this court with the difficult question whether, despite a warrantless entry by the police, the identification and drug evidence should be admitted in evidence under New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), or instead, because of the warrantless entry, the evidence should be suppressed under Bryant (a case distinguishing Harris ).¹⁵

B.

Our dissenting colleague argues that we should go ahead and address the Harris/Bryant issue on our own. Fundá-mentally, Judge WAGNER relies on a line of cases in which the government confesses error and joins in an appellant’s request for reversal of a criminal conviction.¹⁶ When that happens, as this court put it long ago, we cannot set aside the conviction “on confession of error alone”; the “public interest prevents shifting the responsibility for reversal from the appellate court to the prosecuting official.” Fletcher v. United States, 49 A.2d 88, 88 (D.C.1946) (citing Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942), and Parlton v. United States, 64 App.D.C. 169, 75 F.2d 772 (1935)). In such a case, this court will decide the appeal based on our independent review of the merits after “a thorough examination of the record.” Id.; see Turner v. District of Columbia, 98 A.2d 786, 787 (D.C.1953); Dowell v. United States, 87 A.2d 630, 631 (D.C.1952); Hainsworth v. District of Columbia, 72 A.2d 776, 777 (D.C.1950).¹⁷

This approach is unremarkable. Indeed, we take the same position whenever defense counsel on appeal, citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), advises the court that counsel can find no nonfrivolous issue warranting reversal of the client’s conviction. We review counsel’s memorandum but make our own, independent examination of the record before affirming (or reversing) the conviction. See Gale v. United States, 429 A.2d 177 (D.C.), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981).

In either situation, under Young/Parl-ton/Fletcher or under Anders, there is a kind of role reversal. The prosecutor or the defense counsel, relying on his or her responsibility as an officer of the court, expresses an opinion of a kind that ordinarily would be made by a judge, whereas the appellate court, acting on its responsibility to be sure counsel has not defaulted, acts to assure that the rights of the government or the defendant, as the case may be, are duly respected, a function ordinarily performed by counsel. The policy justifying this approach is the belief that the prosecutor or defense lawyer should not completely give up the government’s or the client’s cause — which that lawyer should be advocating — without a judicial check on such behavior.

But this case is different. The government urges affirmance and has selected the arguments it believes are best suited to achieve that end: (1) lack of standing to seek suppression of evidence based on a warrantless entry, coupled with (2) admission of identification and physical evidence based, respectively, on Terry and probable cause. Far from confessing error, the government has vigorously argued for affir-mance. Once the government has thereby assumed its traditional role of advocate, rather than the unusual stance of error-confessor, the adversary system should be allowed to function as such; the court no longer is needed, automatically, to act as an institutional failsafe to make sure that the government has not compromised its prosecutorial responsibility.

In this case, the government, as is typical of responsible counsel, has declined to advocate what it perceives to be losing arguments. It apparently sees no merit in trying to justify the entry based on consent or on exigent circumstances, and either believes the Harris argument is unpersuasive or deliberately ignores Harris to make sure we rule directly on the standing issue. See text accompanying note 22 infra. So we ask: do these tactical judgments by the prosecutor, resulting in a measure of forbearance, mean that this court should nonetheless second-guess the government’s appellate strategy by invoking and examining, sua sponte, various arguments the government has decided not to make?

The Young/Parlton/Fletcher line of cases would require our doing so only on the assumption that the government — by invoking only a standing argument against appellant’s Bryant contention — in effect is proffering a disguised confession of error. But the government is not doing that; it is vigorously pressing for affirmance pursuant to a coherent strategy fundamentally premised on a strong, and not unreasonable, belief that appellant lacks standing to challenge the warrantless entry. The fact that the government relies exclusively on alleged lack of standing, a procedural argument, without an accompanying merits defense of the trial court’s suppression ruling in case the standing argument fails, does not transform the government’s argument for affirmance into a confession of error.

It is one thing if the government altogether throws in the towel by joining in appellant’s request for reversal. In that case, the court, as we have seen, is obliged to check out the capitulation by examining the record; the court has an institutional role as a failsafe against abandonment of the prosecutorial function. But it is quite another thing, when the government seeks affirmance based on reasonable appellate strategy, for this court to scrutinize whether the government — while undertaking its usual role — is doing so well enough. Were we obliged to do this in every case, we would be doing a job the prosecutor is supposed to do and would be coming perilously close to exercising an executive branch function. This confusion of roles would be inconsistent with the neutrality expected of the judiciary in our adversary system of justice.

If we were to take our dissenting colleague’s approach and address the Harris/Bryant issue sua sponte, but then reach a conclusion (contrary to her own) that Harris did not justify the warrantless entry, presumably we would then be obliged to evaluate the entry by reference to arguably exigent circumstances — and, failing affirmance on that basis, by reference to possible consent. At what point, then, under the dissenter’s theory should this court stop playing the role ordinarily assigned to the government?

For perspective, it is interesting to note that in deciding claims of ineffective assistance of counsel on appeal, we do not hold defense counsel accountable for failing to make every conceivable argument that the appellant wants to make; we evaluate performance, to a considerable extent, by deference to counsel’s judgment about the relative merits of arguments and about the best tactical approach to take. See Jones v. Barnes, 463 U.S. 745, 751-52, 103 S.Ct. 3308, 3312-13, 77 L.Ed.2d 987 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.”). We see no reason to judge the government by any less deferential standard when it pursues affirmance of a conviction, rather than confessing error.

It is important to realize that, in declining to go sua sponte beyond consideration of the “standing” argument the government advances for affirmance, we are not relying for reversal “merely [on] the stipulation of the parties,” Young, 315 U.S. at 259, 62 S.Ct. at 512, or “on confession of error alone,” Fletcher, 49 A.2d at 88. Rather, we are reviewing an adversarial clash of arguments for and against reversal of appellant’s conviction and refusing to venture beyond the arguments presented. The confession of error cases do not suggest that the court must sua sponte explore the merits of a trial court ruling in the government’s favor whenever the government — although battling against reversal — loses on procedural grounds and has failed to proffer a merits argument for affirmance. It may be true that the reviewing court, for sound reason, should choose sua sponte to examine the merits of the trial court’s ruling in a particular case under such circumstances, but that is different from a requirement to do so in every instance.

In sum, the issue in this case is not whether we are obliged to decide the appeal after an independent review of the record under the Young/Parlton/Fletcher line of cases, for the government has not confessed error. The issue is whether we should decide sua sponte, as a matter of soundly exercised discretion, to address particular arguments for affirmance the government has eschewed. We turn to that inquiry.

C.

It is a basic principle of appellate jurisprudence that points not urged on appeal are deemed to be waived.¹⁸ That principle applies to the government no less than to the defendant in a criminal case. “Parties, prosecutors included, should select the arguments they do and don’t make with great care.” United States v. Leichtnam, 948 F.2d 370, 375 (7th Cir.1991) (eit-ing Wilson v. O’Leary, 895 F.2d 378, 384 (7th Cir.1990) (“Procedural rules apply to the government as well as to defendants.”)). Courts generally decline to consider arguments thus waived — even where the waived point might arguably have led to affirmance of a conviction.¹⁹ “[WJhere counsel has made no attempt to address the issue, we will not remedy the defect, especially where ... ‘important questions of far-reaching significance’ are involved.” Carducci v. Regan, 230 U.S.App.D.C. 80, 86, 714 F.2d 171, 177 (1983) (citation omit ted).²⁰ This principle should be observed especially where, as here, the government appears to have deliberately conceded an issue as a matter of appellate strategy, rather than merely failing to argue the point inadvertently.

Such self-restraint on our part is a corollary of our adversarial system, in which “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.” Id., quoted in Ford v. United States, 533 A.2d 617, 624 (D.C.1987) (en banc). This is not to say an appellate court is absolutely precluded from reaching an issue sua sponte; it is not. See Carducci, 230 U.S.App.D.C. at 86, 714 F.2d at 177. But even when the courts have elected to do so, as in a sua sponte analysis of harmless error, see supra note 20, they have done so only when a statute required it²¹ or when the record was not complex and resolution of the issue was easy, “beyond serious debate.” United States v. Pryce, 291 U.S.App.D.C. 84, 89, 938 F.2d 1343, 1348 (1991) (per Williams, J.), cert. denied, — U.S. -, -, 112 S.Ct. 1488, 1679, 117 L.Ed.2d 629, 118 L.Ed.2d 396 (1992), supra note 20. In this case, in contrast, resolution of the Harris/Bryant issue is not compelled by statute and, in any event, would be very difficult; the question is a close one, as the government’s concession itself indicates. We do not agree with Judge WagneR that “applicable law clearly supports” the trial court’s ruling. Post at-(emphasis added).

Under these circumstances, we conclude that a sua sponte inquiry into the Harris/Bryant issue would be inappropriate for five reasons. First, appellant made his Bryant argument on appeal, and the government, through its concession, has effectively agreed with him. Thus, appellant has had no opportunity to reply to a Harris argument presented in its most favorable light. We therefore could not reach the issue, in fairness to appellant if not to the government, without calling for supplementary briefing. That would further prolong the period of appellate uncertainty, to appellant’s detriment, and would force the government to argue an issue it has elected not to address.

Second, the government, like appellant, has had its day in court. If we were to decide to review not only the issue the government has contested (standing) but also the one it has effectively conceded (Harris/Bryant), we might be reaching out unnecessarily — at an undesirable cost in time and resources to all parties — to answer two difficult questions when a ruling on one would do. If, for example, the government had contested the Harris/Bryant issue and had a winning argument (as the dissent says it does), we might well have reached that issue and ruled for the government by assuming, solely for the sake of argument — and not deciding as we do here — that appellant had standing.²²

Third, as already noted, the Harris/Bryant issue as applied to the facts here is complex; this is not a matter we could easily resolve because the answer is “beyond serious debate.” Pryce, supra note 20, 291 U.S.App.D.C. at 89, 938 F.2d at 1348 (per Williams, J.).

Fourth, in declining to reach the Harris/Bryant issue we are not setting any precedent on that issue, which is one of the concerns cited for the courts’ unwillingness to reverse solely on a confession of error. See Young, 315 U.S. at 259, 62 S.Ct. at 512; Parlton, 64 App.D.C. at 169, 75 F.2d at 772.

Finally, although the public is entitled to have valid judgments of conviction sustained, the public ordinarily must be bound by the actions of its counsel, just as a criminal defendant normally is. That is how the adversary system works. It is true that criminal defendants, as a matter of constitutional right, sometimes can prevail on collateral attacks on their convictions based on ineffective assistance of counsel, whereas there is no constitutional counterpart justifying affirmance of a conviction based on ineffective appellate advocacy by the government. But most of the time, criminal defendants do not prevail on ineffectiveness claims, because appellate courts give broad leeway to tactical decisions of counsel which bind their clients.²³ Similarly, the public should be bound by the prosecutor’s tactical decision on appeal here, especially because this court confronts a deliberate decision by the government, not an inadvertent failure, to argue Harris/Bryant.

To repeat: there may be occasions when an appellate court should bail out the government by raising sua sponte an argument on appeal that the government has failed to raise. But this is not such a case.

Reversed and remanded.

1 . Appellant also contends that the trial court erred in failing to respond to a note from the jury, and that this lack of response improperly coerced the jury into returning a guilty verdict on the charge of possession with intent to distribute. Because we reverse on other grounds, we do not reach this issue.

2 . In reviewing the denial of appellant’s suppression motion, we consider both the evidence offered at the suppression hearing and the undisputed trial testimony. See Martin v. United States, 567 A.2d 896, 902 n. 16 (D.C.1989), appeal after remand, 605 A.2d 934 (D.C.), cert. denied, — U.S. -, 113 S.Ct. 632, 121 L.Ed.2d 563 (1992).

3 . It appears from the record that Officer Davis was working on the 22nd Street side of the building but that the actual address of the building in question, as given by appellant and his uncle, is 3253 23rd Street.

4 . Specifically, Officer Davis described the seller as follows:

Black male, medium to dark complexion, blue baseball cap with a white patch and his hat was turned around backwards, white short sleeve shirt over top of a black sweat jacket, what looked like a black sweat jacket and blue pants.

5 . Sergeant Jones admitted, however, that in the report he filled out on the day of the arrest, he had written that “S-l" (appellant) had answered the door.

6 . The government argued at the suppression hearing that the entry was consented to, but the motions judge made no finding on this question. While appellant argued lack of consent on appeal, the government did not address the issue either in its brief or at oral argument. That issue, therefore, is no longer in the case.

7 . See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (absent exigent circumstances, Fourth Amendment prohibits warrantless, nonconsensual entry by police into felony suspect’s home).

8 . The government has not contested suppression in the event we conclude that appellant has standing to raise that issue. In its brief on appeal, the government has written: “Although we believe that this Court’s decision in Bryant [v. United States, 599 A.2d 1107 (D.C.1991),] may be distinguishable, in this appeal, we do not contend that the ‘ride-by’ identification evidence is admissible without regard to whether the warrantless entry and seizure of appellant in the apartment was lawful.”

9 . The government further contends that, assuming appellant lacked standing to challenge the warrantless entry, appellant’s Fourth Amendment rights were not otherwise violated. Given our disposition of the standing issue, we do not reach this question.

10 ., Our decisions in Prophet and Lewis are not to the contrary. While it is true that we used the "overnight guest" criterion in rejecting appellants’ standing claims in both of those cases, we did not need to consider other means of establishing a reasonable expectation of privacy because appellants failed to advance any other legitimate basis for their claims. Lewis was only a party guest who took a nap in a bedroom where other partygoers were coming and going. See Lewis, 594 A.2d at 544, 546. Prophet had only been in the home of a friend for about three or four minutes when the police arrived. See Prophet, 602 A.2d at 1089, 1091.

11 .At the suppression hearing, Officer Davis, the undercover agent who purchased drugs from appellant, testified as follows:

I told him [appellant], I said, well, if I come back where are you going to be. And he says, I’m going to be — if I’m not right out here. I’ll be in that apartment where that girl is at. I said, okay, I can just come right up there, and he said, yes. He said. I’m going right back up there now. I have a key, I can get in, you know, I don’t need her to leave the door unlocked. I don’t know why she [the woman who had opened the apartment door, presumably appellant’s aunt] is asking.

At trial Officer Davis essentially repeated the same testimony:

I said, "I’ll probably be back.” So, he said, "I'll either be out here or in that apartment you saw that girl come out of.” He said, "I don’t know why she asked me if I wanted her to lock it. I have got a key. I can get back in.”

12 . See, e.g., Mack v. United States, 570 A.2d 777, 782 (D.C.1990) (“'Hearsay evidence admitted without objection may be properly considered by the trier of fact and given its full probative value.’” (quoting Alston v. United States, 509 A.2d 1129, 1131 n. 9 (D.C.1986))); Bullock v. United States, 243 A.2d 677, 678-79 (D.C.1968) (“The weight of authority in this country, and in this jurisdiction, is that hearsay testimony to which no objection is made may be properly considered along with other evidence in determining the facts.”); J.A. Bock, Annotation, Consideration, in Determining Facts, of Inadmissible Hearsay Evidence Introduced Without Objection, 79 A.L.R.2d 890 (1961 & Supp.1990, 1992).

13 . The dissent questions whether the record compels an inference that appellant had an unrestricted right to use his key to enter the apartment as he wished. See Post at 543-544. We have no hesitation in concluding that when a nephew is a regular visitor, and has a key, to his aunt and uncle’s apartment, the burden of producing evidence that the key had a restricted use shifts to the party opposing the nephew's assertion of a legitimate expectation of privacy in that apartment. The government has not proffered any such evidence.

14 . See also Rakas, 439 U.S. at 149, 99 S.Ct. at 433, observing that in the earlier case of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), Jones had a legitimate expectation of privacy insofar as

Jones not only had permission to use the apartment of his friend, but had a key to the apartment with which he admitted himself on the day of the search and kept possessions in the apartment. Except with respect to his friend, Jones had complete dominion and control over the apartment and could exclude others from it.

In Rakas, the Supreme Court rejected the "legitimately on premises” standard for determining standing, previously adopted in Jones, as too broad, but it did not question the conclusion that the defendant in Jones had standing. Rakas, 439 U.S. at 141-42, 99 S.Ct. at 429-30.

15 . Although the government noted in its concession that "Bryant may be distinguishable," see supra note 8, the government did not say Bryant "was” distinguishable. For all we can tell, therefore, the government relied solely on the standing argument not merely because it thought it should prevail on that issue but also because it believed that lack of standing was its only winning argument — i.e., that if appellant had standing to challenge the warrantless entry, his Bryant argument for suppression was sound.

16 . See, e.g., Young v. United States, 315 U.S. 257, 62 S.Ct. 510, 86 L.Ed. 832 (1942); Turner v. District of Columbia, 98 A.2d 786 (D.C.1953); Dowell v. United States, 87 A.2d 630 (D.C.1952); Hainsworth v. District of Columbia, 72 A.2d 776 (D.C.1950); Fletcher v. United States, 49 A.2d 88 (D.C.1946); Parlton v. United States, 64 App.D.C. 169, 75 F.2d 772 (1935); Cachoian v. United States, 452 F.2d 548 (5th Cir.1971); Georges v. United States, 262 F.2d 426 (5th Cir.1959).

17 . The premise underlying this approach is a belief, traceable to old English caselaw, that the court’s reliance on a government confession of error would establish a legal precedent embracing appellant’s argument, and that the court, not the prosecutor, should be the institution performing the evaluative function that announces the law. See Parlton, 64 App.D.C. at 169, 75 F.2d at 772; see also Young, 315 U.S. at 259, 62 S.Ct. at 512. This rationale is not necessarily convincing, however, because a reviewing court can expressly agree to honor a confession of error, for policy reasons, without necessarily reaching the merits of appellant’s contentions and announcing them as precedent. Indeed, the Supreme Court itself — both before and after Young — has reversed criminal convictions merely on a confession of error without evidencing any opinion about the merits. See Casey v. United States, 343 U.S. 808, 72 S.Ct. 999, 96 L.Ed. 1317 (1952); Weare v. United States, 276 U.S. 599, 48 S.Ct. 321, 72 L.Ed. 724 (1928). In Casey — a case remarkably similar to this one— the Court (with three justices dissenting on the basis of Young) made very clear that it could reverse a conviction and vacate a lower court opinion, on confession of error, without creating new precedent:

The controlling claim in this case is that there was an unreasonable search and seizure of evidence, the admission of which vitiated the convictions. Before determining these issues conflicting views as to the facts in this case and the inferences to be drawn from them would have to be resolved. The Solicitor General confesses error and asks that the judgment below should be reversed as to all the petitioners, leaving of course the way open for a new trial. To accept in this case his confession of error would not involve the establishment of any precedent.

Accordingly we reverse the judgment as to all the petitioners.

Casey, 343 U.S. at 808, 72 S.Ct. at 999. Reflective of this division of authority within the Supreme Court itself, the United States Court of Appeals for the District of Columbia Circuit has noted that "the rule in the state courts is not uniform”: the highest courts of some states have held that "the filing of a confession justifies a reversal without more" whereas in other states "the opinion is expressed that the record should be looked into.” Parlton, 64 App.D.C. at 169-70, 75 F.2d at 772-73. Thus, although the District of Columbia courts take the latter approach, following Young and Parlton, that is not irresistibly the only option — as the Supreme Court’s ruling in Casey clearly demonstrates.

18 . See Ramos v. United States, 569 A.2d 158, 162 n. 5 (D.C.1990); Underdown v. District of Columbia, 217 A.2d 659, 662 (D.C.1966); Cratty v. United States, 82 U.S.App.D.C. 236, 243, 163 F.2d 844, 851 (1947); 16 Charles A. Wright et al., Federal Practice and Procedure § 3974, at 421 n. 1 (1977).

19 . In Leichtnam, for instance, the court reversed a conviction on the ground that the government had improperly broadened the underlying indictment, notwithstanding the absence of any objection by defense counsel at trial, because the government did not assert on appeal that the defendant had failed to preserve the issue. The conviction might have been easily affirmed on plain error review, the court observed, but because the government did not make this argument on appeal, it had "waived waiver as a defense,” leaving the court "to confront Leichtnam’s argument on the merits and without the screen of the plain error standard.” 948 F.2d at 375. In United States v. Harris, 942 F.2d 1125 (7th Cir.1991), the government had won convictions of two women for income tax evasion based on their failure to declare as income money that they had received from a wealthy widower "partial to the company of young women.” Id. at 1127. The Harris court reversed the conviction of one of the defendants on the ground that current caselaw appeared to favor the defendants' position that this money was a gift, rather than income. The court noted that the government had presented other evidence at trial that this defendant had willfully failed to file a tax return. Because the government did not argue this point on appeal, however, the court declined to consider it as an alternative basis for affirming the conviction. See id. at 1134-35. In United States v. McNeil, 286 U.S.App.D.C. 26, 911 F.2d 768 (1990), the court reversed the convictions of several defendants because of the government’s failure to comply with the provisions of the Speedy Trial Act. The court noted it was not clear that the defendants had properly invoked their speedy trial rights in the trial court, but because the government failed to raise this issue in its brief on appeal and conceded it at oral argument, the court deemed it as waived. See id. at 30, 911 F.2d at 772. Also, in Griffin v. United States, 618 A.2d 114 (D.C.1992), where this court reversed a conviction for failure to comply with the "knock and announce" requirements of D.C.Code § 33-565(g) (1988 Repl.), we declined to explore the issue of standing, sua sponte, where the government did not raise it on appeal. See id. at 119 n. 11. See generally United States v. Turner, 898 F.2d 705, 711 (9th Cir.) (government waived challenge to sentence that was miscomputed in defendant's favor), cert. denied, 495 U.S. 962, 110 S.Ct. 2574, 109 L.Ed.2d 756 (1990); United States v. Woods, 888 F.2d 653, 654 (10th Cir.1989) (government waived issue of whether defendant seeking credit on prison sentence had exhausted administrative remedies), cert. denied, 494 U.S. 1006, 110 S.Ct. 1301, 108 L.Ed.2d 478 (1990); United States v. Moya-Gomez, 860 F.2d 706, 746 n. 33 (7th Cir.1988) (government waived claim that appellant, by failing to move for judgment of acquittal at trial, had lost opportunity to challenge sufficiency of evidence), cert. denied, 492 U.S. 908, 109 S.Ct. 3221, 106 L.Ed.2d 571 (1989); cf. Streater v. United States, 478 A.2d 1055, 1057 n. 3 (D.C.1984) (government waived point it failed to raise in opposition to appellant’s motion to reopen direct appeal of conviction).

20 . Recently, over a strong dissent — and each for a different reason — two members of a panel of the United States Court of Appeals for the District of Columbia Circuit decided to affirm a conviction, despite trial court error, when the government declined to argue harmless error. See United States v. Pryce, 291 U.S.App.D.C. 84, 938 F.2d 1343 (1991), cert. denied, — U.S. -, -, 112 S.Ct. 1488, 1679, 117 L.Ed.2d 629, 118 L.Ed.2d 396 (1992); id., 291 U.S.App.D.C. at 93, 938 F.2d at 1352 (Silberman, J., dissenting). One member of the majority did so sua sponte because the relevant portions of the record were “reasonably short and straightforward" and satisfaction of the harmless beyond a reasonable doubt standard was "beyond serious debate.” Id. at 89, 938 F.2d at 1348 (per Williams, J.). The other member of the Pryce majority reached the issue sua sponte because he believed a federal statute and a corresponding federal rule required him to do so. See id. at 92, 938 F.2d at 1351 (Randolph, J., concurring) (citing 28 U.S.C. § 2111 and Fed.R.Crim.P. 52(a)). See also United States v. Giovannetti, 928 F.2d 225, 226-27 (7th Cir.1991) (appellate court has discretion to overlook failure to argue harmlessness of error, depending on complexity of record, certainty of harmlessness, and effects of reversal).

21 . See Pryce, 291 U.S.App.D.C. at 92, 938 F.2d at 1351 (Randolph, J., concurring), supra note 20.

22 . Standing, of course, concerns only the defendant’s right to assert his or her claims on the merits, not our jurisdiction to hear those claims. Consequently, in contrast with a jurisdictional question, we are not necessarily obliged to resolve a question of standing before reaching the merits if we can demonstrate that the defendant would lose on the merits even if she or he had standing. See, e.g., Edwards v. United States, 619 A.2d 33, 35 (D.C.1993) (assuming, without deciding, that appellant had standing to claim that his rights were violated by warrantless entry, trial court did not err in denying suppression of evidence because entry justified by exigent circumstances).

23 . In evaluating a claim of ineffective assistance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).