The opinion of the court was delivered by: GESELL
Two issues are presented on this motion to suppress identification heard immediately before trial. It is claimed that the circumstances of the initial identification were unduly suggestive and that the defendant's rights under the Sixth Amendment were denied because an attorney for the defendant was not present when an on-scene identification was made by the complaining witnesses shortly after the alleged robbery.
The facts are simple and were but slightly disputed at the hearing. Miles Long Sandwich Shop was robbed at about 11:45 p.m. on March 25, 1968, by a man who entered during business hours and forced waitresses to turn over the contents of the cash register. The robber was wearing dark glasses ("shades") and a hat. The premises were brightly lighted by fluorescent lights and the waitresses, who were identifying witnesses at the scene, had had adequate opportunity to observe the man. When he left he got into a car and drove off with another man who was waiting in the car. An accurate description of the getaway car, including its exact tag number, was obtained from a taxi cab driver.
The robbery was immediately reported to the police and a lookout was broadcast at 12:05 a.m. that night. Alert police spotted the car at 12:08 a.m. The two occupants were arrested forthwith, advised of their rights and charged with the Miles Long Sandwich Shop robbery. A large sum of money was found on defendant's person and also a petty cash slip of the Miles Long Sandwich Shop when the occupants of the car were searched at the point of arrest. When the defendant was arrested he denied any participation. The driver of the car, however, admitted being in the parking lot of the Miles Long Sandwich Shop about the time of the robbery. The police had probable cause to make the arrest, although the officers, of course, had no way of then knowing the complete reliability of the lookout which had caused the arrest. Two police wagons immediately responded to the arrest scene by 12:13 a.m., along with other officers. The car, which fitted the lookout description, was impounded. In the meantime, other police, including detectives, had responded to the Miles Long Sandwich Shop and were there when the two police wagons, each containing one of the suspects, arrived at the robbery scene at about 12:25 or 12:30 a.m. The place of arrest was 10 or 15 minutes from the scene of the offense and the wagons went directly to the scene. The defendant had not been booked or taken before a Commissioner when taken to the scene.
After considering the evidence as a whole, the Court is persuaded that the impromptu identification at the scene was not so unduly suggestive as to violate the standards of due process under Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), as interpreted by the Court of Appeals in Wise v. United States, 127 U.S.App.D.C. 279, 383 F.2d 206 (1967), cert. denied, 390 U.S. 964, 88 S. Ct. 1069, 19 L. Ed. 2d 1164 (1968). The witnesses made positive identification, uninfluenced by the police or the atmosphere at the time. The Court feels that this is clear beyond a reasonable doubt considering the demeanor of the identifying witnesses and all the surrounding facts and circumstances. No grounds for suppressing the identification therefore exist under Stovall. The identification resulted from conscientious police work carried out with no improper motive and in a responsible, non-suggestive manner. It was confirmatory in character and gave greater assurance that a citizen who denied involvement was not being unjustly accused. Unless it must now be said that the defendant was nonetheless entitled under the Sixth Amendment of the Constitution to have counsel present at the scene on this occasion, it is clear that the identification was fair and proper and should not be suppressed because limits set by the demands of due process were exceeded.
Counsel was not present, of course, and under the circumstances there was no attempt at waiver nor could a meaningful waiver have been made. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), and cases that have followed have established the right of defendant to counsel at any critical confrontation arranged by the prosecution at pretrial proceedings. This general rule, however, was specifically made prospective by Stovall and its meaning, scope and effect is now just coming into sharper focus as post- Wade cases reach the active trial docket of the courts. Wade itself involved a lineup held after indictment and appointment of counsel for defendant but without the presence of counsel. In contrast, defendant here had been arrested and charged before the identification confrontation occurred but there had been no further procedural formalities. The problem, then, is whether the language and rationale of Wade extend to the factual circumstances before this Court, that is, whether defendant is entitled to counsel at any identification occurring subsequent to arrest.
The Court of Appeals for this Circuit has not decided this question. There are indications in some of the on-scene Stovall identification cases decided after Wade but before the doctrine was effective that counsel's presence would be held necessary, see Wise v. United States, supra, and Wright v. United States, 131 U.S. App. D.C. 279, 404 F.2d 1256 (D.C.Cir., January 31, 1968), but the matter has not been authoritatively determined. The Supreme Judicial Court of Massachusetts in Commonwealth v. Bumpus, 354 Mass. 494, 238 N.E.2d 343 (1968), concluded in June that the Wade doctrine should not extend to confrontations occurring prior to the formal proceedings; in other words, during the preliminary investigatory stage before counsel has been appointed. On September 16th of this year, however, the United States Court of Appeals for the Fifth Circuit, considering a case closely analogous on the facts to the present case, concluded that the Wade doctrine must apply. In Rivers v. United States, 400 F.2d 935 (5th Cir. 9/16/68), that Court determined that the clear import if not the holding of Wade was to require the presence of counsel at any identification confrontation following arrest. Thus, this Court is confronted with a matter of first impression in this jurisdiction which must be resolved in spite of ambiguities created by an imprecise decision of the Supreme Court and conflicting opinions of knowledgeable Appellate Courts.
Wade was decided by a sharply divided Court in the comfortable context of a situation where formal charges had been lodged, the defendant had counsel and the identification then occurred later without notice to defendant's counsel. This was considered a critical stage of the proceeding and an unconstitutional denial of counsel. The Government urges that the Wade rule should be limited to identifications after indictment or information has been lodged. This, however, is not possible under the broad language of the Wade opinion. Indeed, the dissenting Justices emphasized the all-inclusive nature of the ruling as stated by the majority. An on-scene identification after arrest is a critical stage of the proceeding and the defendant appears under Wade to be entitled to counsel and a formal lineup. In short, where arrest has taken place, subsequent identification must be attempted only after the defendant has counsel and a lineup can be arranged. Most reluctantly the Court is required to suppress the identification. The effect of this is to rule out of this proceeding any in-court visual identification by the witnesses who were at the scene, for the Government offered no proof which even suggested that an in-court identification could be accomplished independent of the influence of the improper on-scene confrontation.
Were this an isolated case, it would have no particular consequence. Hundreds of arrests have taken place on the streets of Washington since Wade and undoubtedly there have been many on-scene identifications: some from compelling necessity, some after hot pursuit, some where police sought confirmation, and others, for one reason or other. The variety of fact situations is obvious but the rule of law to be applied is unclear. A host of difficult problems will arise to plague the police and the courts for years to come unless the Wade rule is promptly clarified and its application made both practical and precise. There is no valid reason why there should be the present uncertainty. We are not permitted the luxury of the past where constitutional principles evolved from case to case in a leisurely and academic fashion. The Wade rule affects the daily routine of police in every major metropolitan area and they are entitled to know what identification procedures are required as a basis for a successful subsequent prosecution.
Many different situations occur on our streets daily which, as a practical matter, warrant if not require the police to present a suspect to a complaining witness shortly following detention or arrest. Indeed, such confrontations often occur even without any special police effort to bring them about. Defense counsel cannot always be riding in police cruisers. If police are no longer able to get identification confrontation promptly while the complainant's recollection is fresh, a drastic change in police procedures must take place. The police need greater flexibility than an absolute application of the Wade ruling as presently drawn appears to portend.
We must beware of a tendency to move in the direction of placing primary, if not absolute, reliance upon incourt identification for the in-court identification is the most hazardous of all. It is made after the defendant has been introduced to identifying witnesses in the courtroom in the course of the voir dire. The defendant sits apart from others, is easy to spot, and he may even wear prison garb. As rulings are presently developing, an in-court identification must be suppressed if any questionable or suggestive confrontation has previously occurred. It is only the most exceptional case that an in-court identification will be said to be wholly uninfluenced by prior identification confrontations. Thus we seem to be moving toward a ...