UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and Danaher and Robinson, Circuit Judges. Danaher, Circuit Judge, concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
At day-break on June 28, 1967, one George McCann investigated the sounds of a blaring radio and breaking glass at the Community Shoe Shine shop. The radio was sitting on the sidewalk outside the broken shop window. Stationing himself in a brightly-lighted gas station across the street, he saw a man emerge from the shop, look across at him, and proceed past him up the street. McCann went directly to a nearby police station and reported the incident three or four minutes after it occurred. The police broadcast a radio look-out, and officers in a responding squad car promptly encountered appellant in the vicinity. Since he matched the radioed description of the suspect and fled from the approaching police car, the officers pursued him to the porch of a house. There they discovered that he had a radio in one hand and a hatful of cigarettes and small change concealed under his coat. He also had a coat hanger and a screwdriver in his pocket, and on this particular summer night he was wearing gloves. They arrested him*fn3 and drove him to the shoe shine shop where McCann identified him as the man he had seen coming out of the shop.
At trial, a police officer described the out-of-court identification, and in addition McCann identified appellant in court. McCann also testified that the radio found in appellant's possession looked like the one he had seen on the sidewalk while appellant was in the shop. The owner of the shop established that cigarettes and change had been taken from his vending machines.*fn4 Appellant, as the sole defense witness, denied having been in the shop and presented an implausible alibi which appeared even less plausible under cross examination. Impressive as was the government's case, however, it was not so overwhelming as to render a Wade or Stovall violation harmless error under the stringent standard set by Chapman v. California.*fn5 I
In Wade, the Supreme Court held that a post-indictment lineup is a "critical stage" in the criminal process at which the presence of counsel is required*fn6 Since McCann first identified appellant after Wade was decided, we must determine whether the Wade rule applies to prompt confrontations with an eyewitness at the scene of the crime.
The first court to confront this difficult question held that it does not. In Commonwealth v. Bumpus,*fn7 the eye-witness had feigned sleep while a burglar prowled his bedroom, and immediately afterwards had called the police with a description. The police then picked up the defendant in the neighborhood and brought him back, without counsel, for identification. A unanimous court held Wade distinguishable on its facts and rationale and affirmed the conviction*fn8
But some of the language in Wade implies that a suspect has a right to counsel at any pretrial confrontation arranged by the police, regardless of the circumstances. The Wade Court said it was obliged to "scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant's basic right to a fair trial . . .."*fn9 Scrutinizing, it discovered that
the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.*fn10 It went on to observe:
The pretrial confrontation for purposes of identification may take the form of a lineup, also known as an "identification parade" or "showup," as in the present case, or presentation of the suspect alone to the witness, as in Stovall v. Denno . . .. It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification.*fn11
In all these confrontations the Court said the absence of counsel presents "serious difficulty in depicting what transpires . . .."*fn12 On the strength of this language, the Fifth Circuit Court of Appeals recently concluded that Wade
applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place . . ..*fn13
Accordingly, in United States v. Kinnard,*fn14 Judge Gesell of the District Court for the District of Columbia felt compelled to exclude an on-the-scene identification occurring some 45 minutes after the robbery, in spite of his own vehement dissent to the wisdom of prohibiting such identifications.
The passage in the Wade opinion which most nearly confronts the circumstances of the instant case provides ...