Tu v. State , 336 Md. 406 ( 1994 )

RODOWSKY, Judge.

This case has been tried to judgment of conviction, appealed, reversed, retried to judgment of conviction, appealed, affirmed, and is now before us on certiorari review of that affirmance. The first conviction was reversed for error in denying the defendant’s motion to suppress evidence seized by the police. On direct appeal from the second conviction, and here, the defendant contends that the mandate on the first appeal, and the opinion on which that mandate was based, foreclose reconsideration by the trial court of the admissibility of the seized evidence. That argument requires us to examine the concept known as “the law of the case.”

An agreed statement of facts furnishes the general background.

“Gregory Mung Sen Tu was charged with murdering his wife, Lisa, to whom he had been married for about ten years. There were no witnesses to the murder and Lisa’s body was never found. The State’s theory was that Tu had hidden the body in a couch on which Lisa normally slept and then had the couch hauled to a county landfill where it was completely incinerated within minutes, precluding its discovery.

“The State’s evidence that Lisa Tu was murdered fell into several categories. First, there was evidence of Lisa’s sudden and unexplained disappearance on July 13, 1988. Numerous friends, relatives and associates testified that all communication with Lisa ceased as of that date, as did financial transactions on her bank accounts and credit cards. There was also evidence that Lisa had never disappeared before, she had indicated that she had no plans to travel anywhere that summer, and personal possessions, without which Lisa never traveled, were found. The State also showed that blood found in the basement of her home and on the covering of the couch on which she slept was, with a high degree of probability, that of Lisa or a close relative of Lisa’s.

“The State’s case that Petitioner was the perpetrator of this crime rested on several factors. Tu’s possible motives were shown by evidence of Tu’s financial difficulties, an insurance policy on Lisa’s life under which Tu was the beneficiary, deterioration of the relationship between Tu and Lisa, and Tu’s awareness that Lisa was having an affair with another man. Evidence of opportunity included the presence in the house of two knives and Tu’s purchase of at least one handgun. The State also presented evidence that, on July 16, Tu arranged for a trash collector to haul away the couch, notwithstanding that it’s condition did not warrant destruction.

“Finally, there was evidence of Tu’s conduct following Lisa’s disappearance. Shortly after Lisa’s disappearance, Tu told relatives that she had flown to California to visit a sick friend, Eve Wang. Wang testified, however, that she had not been sick, that she had not invited Lisa to visit, and that Lisa did not, in fact, visit her after July 12. After Tu learned that he was a suspect, he flew to Taiwan, returned to Maryland briefly for questioning, then flew to Las Vegas, where, despite telling friends here that he was looking for Lisa, he sought employment, gambled, and telephone calls were made from his room to two adult entertainment agencies and a prostitute’s beeper.

“The defense sought to show that Lisa had indeed gone to California. Tu produced United Airlines records indicating that a ticket had been issued in the name of L. L. Tu for a flight on July 14, 1988 from Dulles airport to Los Angeles and then to San Francisco, and the airline ticket itself was marked in a way indicating that the ticket had been used from Dulles to Los Angeles. Appellant also presented the testimony of a United Airlines Customer Service Representative, Nancy Mulcahy, who recalled telling a detective in August, 1988, that she saw a woman resembling Lisa board an aircraft for Los Angeles in mid-July of that year. The State responded with evidence that the airline seat for the ticket allegedly used by Lisa Tu on July 14, 1988 was empty. There was also other evidence Ms. Mulcahy may have been mistaken.”

(Footnotes and record references omitted).

At his initial trial Tu was convicted of first degree murder and sentenced to life imprisonment. Prior to that trial Tu unsuccessfully had sought to suppress certain evidence seized in Las Vegas, Nevada. Both the circuit court and, on review of the initial conviction, the Court of Special Appeals considered that (1) the State was justifying seizure by a warrant issued for the search of Tu’s hotel room, and (2) that the contested items were beyond the scope of the search warrant. The trial court, however, applied the plain view exception to the warrant requirement.¹ In an unreported opinion (Tu I), the Court of Special Appeals held that the State had not proved the applicability of the plain view exception.

Following reversal, the State determined it would retry Tu. At a hearing prior to retrial the State, over objection by Tu, presented evidence, believed by the trial court, that six of the contested items had not been seized from Tu’s hotel room at all. Rather, those six items were obtained from the Las Vegas police, as custodian of the property in Tu’s possession when he was arrested. The State also produced evidence showing that a seventh item of evidence seized in the hotel room was indeed within the plain view exception. The circuit court ruled that the seven items would not be suppressed. At the retrial Tu was convicted of second degree murder and sentenced to thirty years.

On Tu’s appeal from his second conviction the Court of Special Appeals held that “[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.” Tu v. State, 97 Md.App. 486, 497, 631 A.2d 110, 115 (1993) (Tu II). Tu petitioned, and the State conditionally cross-petitioned, for certiorari. We issued the writ, limited to the following one of the questions presented by Tu:

“Did the trial court err when it held that evidence previously held by the Court of Special Appeals to be inadmissible could be admitted into evidence?”

Addressing that legal question requires understanding the holding of Tu I. That understanding, in turn, requires a more detailed statement of the pertinent facts.

I

The trail leading to the contested evidence begins with a warrant-authorized search by the Montgomery County police of the Tus’ home in Potomac on September 7, 1988. While there, the police answered a telephone call from a car rental agency, located in the Stardust Hotel in Las Vegas, inquiring about an overdue car rental in Tu’s name.² After a Maryland arrest warrant was issued on September 9 charging Tu with murder, the warrant was teletyped to the Las Vegas police. The car rental agency, if contacted by Tu, was to arrange to have him return the car in person, and the agency was to alert the Las Vegas police of the arrangements. Tu was arrested at the Stardust Hotel on Saturday, September 10. Montgomery County Detectives Michael Turner (Turner) and Roger Thomson (Thomson), accompanied by an Assistant State’s Attorney, went to Las Vegas to continue the investigation and to return the arrestee to Maryland.

Personal belongings in Tu’s possession at the time of his arrest and, after exchange for jail garb, his clothing, had been taken into the custody of a Las Vegas law enforcement property custodian who had inventoried the items. The Montgomery County detectives arrived in Las Vegas on the evening of Sunday, September 11. While Turner and local officers interviewed Tu, Thomson photocopied the property custodian’s inventory list and Tu’s papers and documents that were being held in the custody of the Las Vegas authorities. When Tu was returned to Maryland, the Nevada authorities transferred custody of Tu’s belongings to Turner and Thomson. These included six of the contested items of evidence involved in the circuit court ruling which is challenged here. The six items are hereinafter called the “custodial items.”

The custodial items are (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 laundry ticket, bearing control number 2042, but not identifying the issuing business, issued to a person named, “Wong,” and indicating the charge would be $1.15. Included within the State’s theories of the relevance of the custodial items was that they, or their fruits, indicated conduct inconsistent with Tu’s statements that he was searching for his missing wife.

In his post-arrest interrogations, Tu told the police that he was staying at the El Rancho Hotel in Las Vegas at the time of his arrest. Turner testified that Tu consented to a police search of his room, but that, out of an abundance of caution, a search warrant was obtained. Tu’s room at the El Rancho was searched on Monday, September 12, 1988. Included among the authorized objects of the search were “[cjredit cards and/or receipts of transactions.”³ In a doorless closet, i.e., a small alcove containing a rod from which to hang clothing, hung a freshly laundered shirt in a clear plastic cover, to which was attached a ticket, bearing control number 2011, issued to a person named, “G. Wong,” for which the charge was either $1.05 or $1.95. That ticket is the seventh contested item of evidence.

A ruling on a motion to suppress ordinarily is reviewed on the record made at the suppression hearing, standing alone. McMillian v. State, 325 Md. 272, 281, 600 A.2d 430, 434-35 (1992); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990); Trusty v. State, 308 Md. 658, 670-72, 521 A.2d 749, 755-56 (1987). The foregoing description of the State’s acquisition of the contested exhibits is based upon the transcript of the second suppression hearing. To serve as the record on appeal in this case, the parties furnished only the transcripts of the second suppression hearing and of. the retrial, without including any exhibits introduced at either proceeding and without including the transcript of the first suppression hearing.⁴

With respect to any support at the first suppression hearing for applying the plain view exception, Tu I advises:

“After the application, search warrant, and return were admitted in evidence at the suppression hearing, the State rested. There was no testimony by Detective Turner in response to direct examination or cross-examination as to where or under what circumstances the items in [Tu’s] motel were seized.”

The Court of Special Appeals, citing Wiggins v. State, 315 Md. 232, 250-51, 554 A.2d 356, 364-65 (1989), reasoned that, in order for the plain view exception to apply, the police must have been immediately aware of the evidentiary significance or contraband nature of an item observed. Thus, there was no support at the first suppression hearing for the circuit court’s having applied plain view. The Court of Special Appeals, however, did not catalogue items that were to be suppressed.

In reciting the facts, leading up to its above-described holding, the Court of Special Appeals in Tu I noted that the parties had not included in the record the application for search warrant, the search warrant, and the return thereon, although these documents had been introduced at the first suppression hearing. The opinion in Tu I notes that the court called upon counsel for both parties to supplement the record, but the court had received only the application and the warrant, without the return. In order to state the facts the court turned to Turner’s testimony at trial in which he apparently described what had been seized from Tu’s room. The court divided the items, so described by Turner, between those found in Tu’s briefcase and those found elsewhere in the hotel room. To the extent relevant here, the first category included “a communication with a prostitute” (referring to the greeting card described supra) and the business card of the Silver Dragon. In the second category the Court of Special Appeals included the keno card and “a dry cleaning receipt indicating [Tu’s] use of another false name.”

At the second suppression hearing Turner testified that his testimony at the initial trial was mistaken in that he identified custodial items as having been seized when the search warrant was executed at the El Rancho Hotel. Turner explained that he realized his error when reviewing files in the State’s Attorney’s Office in preparation for the forthcoming retrial of Tu and saw the photocopied inventory list and photocopied documents that Thomson had made from papers and documents already in the custody of the Nevada authorities prior to the search at the El Rancho Hotel. 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.⁵

Thus, Tu’s position on the instant appeal is that, as a matter of law, the circuit court at the second suppression hearing could not consider the materially different facts relating to the custodial items, and could not receive further clarification concerning seizure of the laundry ticket found in the hotel room. Tu has chosen “law of the case” as the horse to ride to the above-described result, but it will not carry him that far.⁶

II

The law of the case doctrine lies somewhere beyond stare decisis and short of res judicata. Professor Moore gives the following overview:

“The law of the case, like stare decisis, deals with the circumstances that permit reconsideration of issues of law. The difference is that while stare decisis is concerned with the effect of a final judgment as establishing a legal principle that is binding as a precedent in other pending and future cases, the law of the case doctrine is concerned with the extent to which the law applied in decisions at various stages of the same litigation becomes the governing principle in later stages. As applied to interlocutory decisions by the trial court, the principal purpose of the doctrine is efficiency of disposition. It encourages the court to get on with the proceedings, leaving earlier errors, if any, to be corrected on post-trial motion or on appeal. As applied to appellate court decisions, it serves the dual function of enforcing the mandate and precluding multiple appeals to review the same error. Like stare decisis, the doctrine of the law of the case is quite rigidly applied to force obedience of an inferior court, but more flexibly in its application to reconsideration by the court that made the earlier decision.”

IB J.W. Moore, J.D. Lucas & T.S. Currier, Moore’s Federal Practice ¶ 0.401, at 1-2 to 1-3 (2d ed. 1993) (footnotes omitted) (Moore).

The aspect of the doctrine that Tu argues is called “the mandate rule.” See Moore ¶ 0.404[10]. “When a case is appealed and remanded, the decision of the appellate court establishes the law of the case, which must be followed by the trial court on remand.” Id. ¶ 0.404[1], at II-3. See Chayt v. Board of Zoning Appeals, 178 Md. 400, 13 A.2d 614 (1940) (trial court on remand may not reduce breadth of appellate-mandated injunction against zoning violation). “What remains within the power of decision of the [trial] court after remand depends, of course[,] on the scope of the mandate.” Moore ¶ 0.404[10], at 11-61. “When the remand is general, however, the [trial] court is free to decide anything not foreclosed by the mandate.” Id. at 11-63 to 11-64.

We have shown that Tu I held that the State had failed to prove at the first suppression hearing that the plain view doctrine applied to items, beyond the scope of the warrant, that the court understood were seized at the hotel. Chief Judge Wilner, writing in Tu II for the Court of Special Appeals, correctly described that court’s earlier holding, saying: “We did not declare the items to be inherently and generically inadmissible but merely inadmissible upon the circumstances presented to us in that case.” 97 Md.App. at 498, 631 A.2d at 116. Thus, the circuit court, at the second suppression hearing, did not directly violate the precise holding of Tu I, at least as it applies to the custodial items.

At the second suppression hearing the court accepted the State’s testimony that the custodial items were not seized at the hotel. Tu does not contend that the custodial items are subject to suppression if they may be considered to have been acquired from the Nevada authorities as described in the testimony at the second suppression hearing. Cf. Gee v. State, 291 Md. 663, 435 A.2d 1387 (1981) (where property that was on person of arrestee at time of valid arrest is held in custody of arresting police department, arrestee has no reasonable expectation of privacy in the property sufficient to prevent inspection and seizure as evidence of another crime by another police department).

Consequently, Tu’s argument ■ necessarily is that the mandate in Tu I implicitly prohibits or limits the trial court from receiving additional or contradictory evidence and from considering a different legal theory—one under which suppression would be denied. In the broadest application of his argument, Tu would have us foreclose, under the law of the case doctrine, any reconsideration by a trial court of the suppression of those items of evidence involved in the appellate ruling granting suppression. Appellate courts that have ruled on suppression issues do not consider that the law of the case doctrine so broadly restricts trial courts on remand.

United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957), is one of those cases. In that criminal tax prosecution the defendants had moved in the district court to suppress evidence allegedly obtained by Treasury agents from the defendants pursuant to the voluntary disclosure policy formerly applied by the Treasury Department. The district court denied the motion, holding that the voluntary disclosure was ineffective, but without discussing the fifth amendment. 355 U.S. at 236 n. 5, 78 S.Ct. at 248 n. 5. The court of appeals reversed, concluding that the voluntary disclosure was effective and that the fifth amendment barred the Government’s use of the evidence. Id. After the Government had petitioned for certiorari, it moved in the Supreme Court for a limited remand to the district court in order to attempt to show that the voluntary disclosure defense was fraudulent and concocted with the assistance of corrupt Treasury agents. Id. at 236, 24CM4, 78 S.Ct. at 248, 250.

The Court granted the Government’s motion. Justice Harlan, -writing for the majority, rejected the defendants’ fairness argument, for reasons pertinent here.

“Their objection that it is ‘unfair’ to allow the Government at this stage of the proceedings to ‘bolster’ the record relating to the suppression issue is likewise unacceptable. It is undeniable, of course, that upon appellate reversal of a conviction the Government is not limited at a new trial to the evidence presented at the first trial, but is free to strengthen its case in any way it can by the introduction of new evidence. We think that in the peculiar circumstances of this case the fair administration of justice requires that the Government should have a similar opportunity here.”

Id. at 243, 78 S.Ct. at 251.

Justice Black, joined by Chief Justice Warren and Justice Douglas, dissented, but the dissenting justices had no disagreement as to how the mandate of the court of appeals would operate on subsequent proceedings in the district court. Justice Black wrote:

“As I stated ... the case should simply be left alone and allowed to go back for a new trial. There the Government can offer all the evidence it has or can secure so that a new record can be made on the suppression issue. In my judgment it cannot seriously be contended that the Government would be barred from introducing evidence on that issue at a new trial. While it is true that the Court of Appeals ordered the disclosures suppressed, on the evidence in the record then before it, such 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 (emphasis added).

In Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), the Court distinguished Shotwell. There, at the district court and the court of appeals levels, the accused unsuccessfully had sought to suppress narcotics seized from his person at the time of his arrest under a warrant. The accused contended that the complaint underlying the warrant failed to demonstrate probable cause. In the Supreme Court the Government, for the first time in the litigation, sought to support the arrest and search incident by relying on state law that permitted a warrantless arrest where there was probable cause that the arrestee had committed a felony. 357 U.S. at 487, 78 S.Ct. at 1250. The Court would not consider the new issue as part of the then pending case. Addressing possible disposition of the type that had been made in Shotwell, the Court, again speaking through Justice Harlan, said:

“Nor do we think that it would be sound judicial administration to send the case back to the District Court for a special hearing on the issue of probable cause which would determine whether the verdict of guilty and the judgment already entered should be allowed to stand. 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. Cf. United States v. Shotwell Mfg. Co. ... This 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.”

357 U.S. at 488, 78 S.Ct. at 1251 (emphasis added). The Chief Justice, Justice Black, and Justice Douglas joined in the majority opinion in Giordenello. Three dissenters (Justices Clark, Burton, and Whittaker) would have considered the warrantless arrest argument in the appeal then before the Court and, a fortiori, would not preclude consideration of the issue on remand. Id. at 492, 78 S.Ct. at 1253.

Shotwell and Giordenello involved reversals of convictions by appellate opinions that do not contain any express directions for the scope of proceedings on remand. From those cases we distill that reversal for the 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 that 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.

Giordenello was applied in United States v. Salazar, 805 F.2d 1394 (9th Cir.1986). The Ninth Circuit reversed a drug crime conviction where the drugs had been seized without a warrant from an automobile occupied by the accused. Although the district court erred by denying suppression in reliance on the automobile exception, the appellate court specifically noted that, in the event of a new trial, Giordenello permitted the Government to seek to justify the accused’s warrantless arrest on probable cause grounds and to seek to justify the .seizure of the drugs as a search incident to arrest. Id. at 1400.

Indistinguishable from the instant matter is State v. Grosvenor, 402 N.W.2d 402 (Iowa 1987). Grosvenor’s first conviction on drug charges was reversed because of the failure to suppress evidentiary items seized from Grosvenor’s room under a search warrant that was limited to common areas of the building where Grosvenor resided. The appellate court’s opinion reversing the first conviction stated that the items seized included $800 in Grosvenor’s wallet, found in a jacket in a closet in his room. Id. at 404. Prior to the second trial the state proved that Grosvenor had been arrested in the street and that the wallet containing the $800 had been removed from his person at that time. Admitting the funds into evidence was upheld on appeal from the conviction on retrial. Citing Iowa cases exclusively, the court reasoned that the law of the case doctrine “is not applicable ... if the facts before the court upon the second trial are materially different from those appearing upon the first,” and that “the doctrine does not preclude consideration of issues that could have been, but were not, raised in the first appeal.” Id. at 405.

At least two courts, when applying law of the case, require a preliminary showing before permitting trial court consideration of additional evidence on remand. One is the Appellate Court of Illinois. See People v. Hattery, 183 Ill.App.3d 785, 132 Ill.Dec. 58, 539 N.E.2d 368, cert. denied, 127 Ill.2d 627, 136 Ill.Dec. 596, 545 N.E.2d 120 (1989). After that court affirmed the denial of an accused’s motion to suppress his confession, but reversed on other grounds, the accused was allowed, prior to retrial, to attempt again to show that his confession resulted from a pretextual arrest on an unrelated charge. On appeal from the second conviction the court held that the trial court correctly reconsidered the pretext issue because the “defendant met his burden of showing additional evidence that had become available since his earlier suppression hearing.” 132 Ill.Dec. at 73, 539 N.E.2d at 383. But the movant did not show “that the trial court’s finding, that defendant’s confession was not the product of an unreasonable seizure based on a pretextual arrest, was manifestly erroneous.” Id. at 81, 539 N.E.2d at 391.

The rule in Colorado seems to be similar to that in Illinois. In People v. Roybal, 655 P.2d 410 (Colo.1982), an interlocutory appeal by the state, the court held that because there was no probable cause to arrest the defendant for drunk driving, certain written statements given by the defendant while in custody should be suppressed. Following that appellate decision, but before trial, the defense moved, to suppress the results of a blood alcohol test, alleging that the test was also a result of the illegal arrest. The state sought to reopen the question of probable cause and present the testimony of an additional investigating officer, directed to that issue. People v. Roybal, 672 P.2d 1003, 1005 (Colo.1983). The trial court would.not reopen and, on a second interlocutory appeal, the Colorado Supreme Court again affirmed. Id. at 1006. The court, however, commented in dicta that “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.” Id. at 1006 n. 7.

In the case before us the State has cited State v. Edwards, 214 Conn. 57, 570 A.2d 193 (1990), and United States v. Eubanks, 591 F.2d 513 (9th Cir.1979). Tu submits that these cases support his position. In Edwards the conviction was reversed because certain evidence should have been suppressed that had been allowed by the trial court on the theory that the police had effected a valid stop and frisk. In remanding, the appellate court said that “[a]s a consequence, the defendant is entitled upon retrial to the suppression of [the evidentiary items] that were illegally seized from his backpack, unless the state adduces an alternate, legitimate ground for their seizure.” Edwards, 570 A.2d at 203. In Eubanks the conviction was reversed because of an insufficient foundation for the co-conspirator exception to the hearsay rule. The court concluded its opinion by saying that “[o]n retrial, the prosecution is not precluded from introducing additional evidence that would permit the inference that Gonzales’ statements were made in furtherance of the conspiracy.” Eu-banks, 591 F.2d at 521. Tu considers that statements of the type found in Edwards and Eubanks are essential if an appellate court intends to prevent the ordinary operation of the mandate rule and to permit on remand consideration of additional evidence or of an alternative theory bearing on the suppression or admissibility of the same evidence. The State reads these statements as consistent with the GiordenelloSalazar-Grosvenor line of cases in that the Edwards and Eubanks courts are simply describing what is permitted on remand under the ordinary operation of the law of the case doctrine.

Whatever the Edwards and Eubanks courts might have intended, the rule advocated by the State is better. First, where the decision on appeal will result in a remand and possible retrial, an appellate court cannot predict whether there will be new facts on retrial. It can decide only on the facts before it on the appeal producing the remand. Second, 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. It would mean that appellate courts would have to articulate that which is not decided in remanded cases, as well as that which is decided. Third, the rule for which the State contends is more consistent with the decisions of this Court applying or discussing the law of the case doctrine.

Prior to the instant criminal cause, no Maryland appellate court in a reported decision has dealt with the interplay between suppression motions in criminal cases and the mandate rule subset of the law of the case doctrine. In the civil arena, decisions of this Court have recognized in a variety of contexts that the evidence may change in further trial court proceedings that follow an appellate decision. We present a few illustrations.

The litigation in Whitridge v. Parkhurst, 20 Md. 62 (1863), and Frisby v. Parkhurst, 29 Md. 58 (1868), involved an oral family settlement in which a mother and her daughter agreed upon the disposition to be made of inherited property on their deaths. The first appeal affirmed an injunction granted to creditors of the mother. Proof of one of the defenses offered, namely, the existence of the family settlement, rested on the deposition testimony of the family attorney taken in another case. 29 Md. at 60. On the first appeal this Court held that the conversations testified to by the attorney could not prove a binding contract. 20 Md. at 85. Thereafter, in this nineteenth century equity proceeding, the defendants fully deposed the attorney and used the more complete deposition as evidence on the merits. 29 Md. at 68. The final decree, favorable to the creditors, was reversed on the second appeal. This Court said that the attorney “has clearly, distinctly and unequivocally sworn that there was an agreement....” Id. at 66. This Court said that “[t]he state of facts, thus presented, is very different from the proof upon the former appeal, and it is admitted by the counsel for the [creditors] that the evidence must be the same to make the decision upon the former appeal binding upon this.” Id. at 67.

The analogy between the Parkhurst litigation and the matter before us is limited. By its nature, an interlocutory injunction is not intended to be a final adjudication of the merits. See Hunter v. Atchison, Topeka & Sanie Fe Ry. Co., 188 F.2d 294 (7th Cir.1951); Moore ¶ 0.404[4.-7], at 11-38.

The caveat proceedings in Smith v. Diggs, 128 Md. 394, 97 A. 712 (1916), and Diggs v. Smith, 130 Md. 101, 99 A. 952 (1917), also illustrate a certain lack of rigidity in applying the law of the case doctrine. Issues had been transferred by an orphans’ court to a court of law for decision by a jury. The only issue actually submitted to the jury was fraud in procuring the will. The caveators prevailed before the jury, but, on the first appeal, this Court ruled that the court of law erred in failing to instruct the jury “that there was no legally sufficient evidence from which it could find that the will was procured by fraud.” 128 Md. at 400, 97 A. at 715. The mandate read: “Rulings reversed and cause remanded.” Id. On remand the court of law conducted an entirely new trial, at which additional evidence was presented by the caveators. The court of law ruled that the caveators’ case was legally insufficient. On the second appeal this Court made no comment concerning the procedure followed on remand.⁷ With respect to the law of the case doctrine, this Court said that “[a]ll that is necessary upon this appeal is to consider to what extent additional testimony adduced at the second trial should operate to modify the conclusion then reached.” 180 Md. at 102, 99 A. at 953. The holding on the second appeal was that “[t]he additional testimony offered in this case beyond that which was presented upon the first trial .. . was without sufficient probative force to warrant leaving it to a jury.... ” Id. at 105, 99 A. at 955.

In cases where the plaintiffs allegations or proof are determined on the first appeal to be legally sufficient, and, on a second appeal, the defendant questions the legal sufficiency of the proof on remand, it is necessary to determine whether the facts proved are substantially those previously adjudicated. See Fidelity-Baltimore Nat'l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367, 142 A.2d 796 (1958); Maryland Coal Co. v. Baker, 85 Md. 688, 36 A. 768 (1897) (memorandum opinion). In other words, facts may change from trial to trial of the same case.

A number of this Court’s nineteenth century decisions contain statements to the effect that the mandate rule subset of the law of the case doctrine would not apply where the facts on remand are substantially or materially different from those before the appellate court on the first appeal. See Baltimore & Ohio R.R. Co. v. Resley, 14 Md. 424, 440 (1859) (“[A]s the additional evidence does not materially alter the case, those prayers which were then held [7 Md. 297] to be correct must govern the same questions arising on the present record.”); Brown v. Somerville, 8 Md. 444, 454 (1855) (“Whatever principles were settled on the former appeal must govern this Court on the present, unless the record shows a materially different case.”); Preston v. Leighton, 6 Md. 88, 97 (1854) (“The case being substantially the same [because additional proof did not vary the applicable law], whatever was decided on the former appeal must govern on this.”).

Tu relies on' the policy of efficiency underlying the law of the case doctrine. He does not cite any authority dealing with suppression issues, but he emphasizes the litigation in Springer v. Korotki, 215 Md. 310, 137 A.2d 655 (1958) (Korotki I) and particularly in Korotki v. Springer, 218 Md. 191, 145 A.2d 767 (1958) (Korotki II). The decision in Korotki II is distinguishable from the instant matter. Korotki had sold his neighborhood grocery business to his long-time friend, Springer. 215 Md. at 311, 137 A.2d at 656. Under the contract Korotki warranted that sales during a test week prior to closing would be not less than $650. Sales of $742.28 were recorded during the test period. Id. at 312, 137 A.2d at 656. Springer closed, but thereafter sales declined. Springer learned from Joyner, the neighborhood barber, that Korotki had repaid Joyner fifty cents on every dollar of purchases that Joyner had made at the grocery during the test period, and that Korotki had pledged Joyner to silence. Id. at 313, 137 A.2d at 657.

Springer sued for rescission and restitution in equity. Korotki denied the truth of Joyner’s testimony and denied cheating his friend Springer who had once saved Korotki’s life. The trial judge, as trier of fact, did not accept Joyner’s testimony and found that Springer had not met the burden of proof. Id.

In Korotki I this Court reversed the trial judge on the evidence, concluding that the findings were “clearly wrong.” Id. That appellate conclusion rested principally on Korotki’s income tax returns which showed that the weekly average of sales was $549 for thirty-one weeks preceding the test week. This Court remanded the case for further proceedings not inconsistent with the opinion. Id. at 315, 137 A.2d at 658. Back in the trial court, Korotki sought to present additional evidence directed to showing that Joyner had lied in his testimony. The trial court refused to reopen and entered a decree awarding Springer his remedy. 218 Md. at 193, 145 A.2d at 768.

In Korotki II we affirmed, saying that “this Court adjudicated the issue as to the right to rescission and that becomes the law of the case.” Id. We explained that the mandate “left open on remand only the question as to the relief that might be necessary or proper to effectuate that purpose.” Id. at 193-94, 145 A.2d at 768. Further, under former Maryland Rule 871 (now Rule 8—604(d)(1)), dealing with remand, the order and the opinion “ ‘shall be conclusive as to the points finally decided thereby.’ ” Id. at 194, 145 A.2d at 769.

The Korotki I mandate, properly interpreted, had not left open any issues of liability. The mandate in the instant matter is not so limited. When the cause against Tu was returned to the trial court, the judgment of conviction no longer existed, and the trial court was free to make rulings that did not conflict with that which had been decided by the Court of Special Appeals. Further, in Korotki I this Court took the highly unusual steps of rejecting trial court fact-findings and of finding contrary facts at the appellate level. Thus, when Korotki sought to prove facts contrary to those found by this Court, he bumped squarely into the mandate rule. Here, the court in Tu I did not make fact-findings. It held only that there was no evidence to support the trial court’s fact-finding.

At the second suppression hearing in the instant matter the State proved to the satisfaction of the trial court that the custodial items were not seized at the El Rancho Hotel and that the custodial items were not subject to suppression under the actual facts and under a legal theory other than that involved in the decision in Tu I. To permit reopening under those circumstances is consistent with the general tenor of this Court’s decisions and with the Giordenello-Salazar-Grosvenor line of cases. There is no conflict with the law of the case because the holding in Tu I adjudicated only those aspects of the suppression/admissibility of the custodial items that were presented in that appeal. We hold that the custodial items were not barred by the law of the case doctrine.

Ill

At the second suppression hearing the State also proved that the laundry ticket bearing control number 2011 was seized at the El Rancho Hotel. We shall assume, arguendo, that the ticket is not a “receipt” as that term is used in the search warrant, and that it is the “dry cleaning receipt” referred to in Tu I. The State undertook to justify admission of the laundry receipt by the plain view doctrine, the same theory on which the trial court had relied at the first suppression hearing. In support of plain view, the State produced at the second suppression hearing additional evidence that was available at the time of the first suppression hearing. We need not decide here whether the law of thé case doctrine prohibited the trial court from considering the State’s more specific factual explanation for applying plain view.

Assuming, arguendo, that the ticket bearing control number 2011 should have remained suppressed on remand, its introduction into evidence at trial was harmless beyond a reasonable doubt. Among the custodial items which we have held were not subject to suppression was laundry receipt bearing control number 2042. That was admitted into evidence at trial. The significance of both receipts is that they bear the name, ‘Wong,” from which the jury might infer that Tu was using an assumed name in order to cover his trail. Thus the ticket numbered 2011 was merely cumulative of ticket numbered 2042.

Neither laundry ticket identified the issuing cleaning establishment. The Montgomery County and Las Vegas police canvassed the Las Vegas “Strip” area. They located Duo Cleaners where a laundered and boxed shirt, marked with the laundry’s counterpart of ticket numbered 2042, was being held for customer “Wong.” From a photograph of Tu the Duo proprietor identified Tu as “Wong.” He also identified Tu as “Wong” in person at trial.⁸

There was other evidence at trial of Tu’s false self-identification. Tu stayed at Caesars Palace in Las Vegas from August 15 to August 23, registering in his name but giving a nonexistent address in Los Angeles as his residence. He traveled to Florida and back August 23 to August 25. A Delta Airlines ticket for Tu’s return flight from Pensacola to Las Vegas was issued in the name, “T. Gregory.” He stayed at the Stardust Hotel from August 25 to August 31, having registered with a second nonexistent Los Angeles address as his residence. On August 31, 1988 he completed a written application for employment at the Silver Dragon Restaurant giving the name, “Gregory Sen,” on an application left with the restaurant’s hostess. The restaurant’s manager interviewed “Gregory Sen” on Sunday, September 4. The hostess and manager each identified Tu as “Gregory Sen,” both from a photograph of Tu during the investigation by the police, and in person at trial. A professional poker player from Las Vegas identified Tu at trial as a person, known to him only as “Gregory,” with whom the witness had played cards. Gregory told the witness that he was from San Francisco.

Thus, if laundry ticket bearing number 2011 was improperly admitted, the error was harmless beyond a reasonable doubt. See, e.g., Rubin v. State, 325 Md. 552, 578, 602 A.2d 677, 690 (1992). Harmless error is a potential issue in every certiorari review. See Rule 8-131(b)(l).

For these reasons the judgment of the Court of Special Appeals is affirmed.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER, GREGORY MUNG SEN TU. ■

1 . The judge who presided at the first suppression hearing was not the judge who presided at the second suppression hearing and the retrial.

2 . As we discuss, infra, the jury heard evidence that Tu also used assumed names while in Las Vegas.

3 . Other objects within the scope of the warrant were "[tjrace evidence of blood like substance on items of clothing, shoes, etc.; ... [financial records, withdrawals of large sums of cash ... [ajirline ticket documentation; ... .380 caliber handgun and/or other offensive weapons; ... [cjorrespondence to other individuals in approximately the last 60 days; [and Ijarge sums of cash.”

4 . We have subsequently obtained from the Clerk of the Circuit Court for Montgomery County the exhibits from the second suppression hearing and from the retrial that were in that clerk's possession. We have also caused the record to be further supplemented with the transcript of the first suppression hearing and of the first trial. The transcript of the first suppression hearing confirms that its description in Tu I was substantially accurate.

5 . Underlying the law of the case issue is Turner’s change in his testimony. We do not agree with the characterization by the dissent in the matter sub judice that the State had stipulated at the first suppression hearing as to the place where the custodial items had been seized.

Tu’s written suppression motion was a form motion that contained no specifics whatsoever. In a brief preliminary statement at the first suppression hearing, the State advised that it would be calling Turner. The State represented that nine search warrants had been executed in three states and that all of the materials seized were seized pursuant to search warrants.'

Turner took the stand and, in the course of direct examination, identified the warrant and return for Tu’s room at the El Rancho Hotel in Las Vegas.

On cross-examination defense counsel elicited testimony that evérything seized from the hotel room was listed on the return of the search warrant. Defense counsel then inquired about derivative evidence. When Turner had no recollection of any evidence derived from some telephone numbers, the following transpired:

"[PROSECUTOR]: Your Honor, I would proffer what I know, if they would allow it. I know that there were—

"[DEFENSE COUNSEL]: I will accept the proffer. I am just trying to find out if there is any—

"[PROSECUTOR]: I know that, for instance, in terms of some of the papers we followed up on a card that was made out to a girl named Terry.

“THE WITNESS: Yes.

"[DEFENSE COUNSEL]: But that was seized from Mr. Tu, wasn’t it, as a result of his arrest?

"[PROSECUTOR]: That was in his briefcase, I believe—

"THE WITNESS: That was in his briefcase.

“[PROSECUTOR]: —and that was seized—. The card to Terry was in his briefcase in his room when the room in Las Vegas was searched. There also was a card in the briefcase—and I am proffering all of this and if the detective’s recollection is different, I think these are the facts. There was a card and the name of a restaurant on it____

"[PROSECUTOR]: Just for the record, I think all the things that I have just indicated I think [defense counsel] either knows about or is available to him in terms of looking at the documents themselves.

"[DEFENSE COUNSEL]: Except I didn’t know where they came from.

"THE COURT: —know the documents, but I don’t know what you might have done as a result.

"[DEFENSE COUNSEL]: Yes, I didn’t those [sic] [know?] that the items were in the briefcase.

“BY [DEFENSE COUNSEL]:

“Q Just for purposes of the record, Detective Turner, the fact to which [the prosecutor] just proffered, do you believe that to be true and accurate according to your memory?

"A Yes, sir.”

(Emphasis added).

If this were a case in which the State and the accused had stipulated as to the facts, our analytical framework would very likely be different. In any event, we intimate no opinion as to what the result here would be if the parties indeed had entered into a stipulation of facts.

6 . Tu made no argument before the Court of Special Appeals or in his petition for certiorari based on Maryland Rule 4-252(g)(2). The interpretation and scope of that Rule are not before us.

7 . Later decisions of this Court in caveat cases tried on issues in a court of law have recognized that an appellate court may determine that a directed verdict should have been granted and may reverse without a new trial. See Schmeizl v. Schmeizl, 184 Md. 584, 42 A.2d 106 (1945); Johnston v. Schmidt, 158 Md. 555, 149 A. 283 (1930).

8 . When the police found ticket 2011 at the El Rancho Hotel, they already legally possessed ticket 2042, which was among the custodial items, discussed supra. Even if ticket 2011 is considered, under the law of the case and not under the facts found at the second suppression hearing, to have been illegally seized, the investigation actually conducted by the police demonstrates what they would have done if they had found only ticket 2042. Thus, the exclusionary rule would not bar the evidence given by the laundry proprietor. See Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377, 387-88 (1984); Oken v. State, 327 Md. 628, 654, 612 A.2d 258, 271 (1992); Stokes v. State, 289 Md. 155, 163-65, 423 A.2d 552, 556-57 (1980). The exclusionary rule is not intended to put the police in a worse position than they would have occupied had the alleged violation of the accused's rights not occurred. See Nix, e.g., 467 U.S. at 443, 104 S.Ct. at 2508.