Police Station where some eight additional photographs were exhibited to her from which she identified the petitioner. Upon cross-examination, she stated that she picked out the petitioner's photograph from a book labeled "Moral Offenders," but was totally unaware of this title until after her identification was made. Her testimony of the identification procedure was corroborated by Detective Donald Elmer of the Cherry Hill Township Police Department, who further testified that while Miss Clark was viewing the photographs, one Linda Campiglia (an alleged kidnapping victim by someone on the previous day) was attempting to identify her abductor at the same time. Both women simultaneously identified the petitioner as their abductor. It was established that Miss Campiglia had earlier viewed about twenty photographs at the Cherry Hill Police Station without making an identification.
The Trial Judge determined that the photographic viewings were not "impermissibly suggestive," were untainted and conducted fairly and justly. He permitted the in-court and pretrial identifications to be testified to as part of the State's case. We agree with his determination.
In a trilogy of cases
dealing with lineups, the United States Supreme Court recognized that an accused has the right to have counsel present at a pretrial, post-indictment lineup. The Court grounded its decision on the principle that an accused is entitled, under the sixth amendment, to be represented by counsel at any "critical stage" of the criminal process. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). "Critical stage" was defined by the Court as "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." Id. at 226, 87 S. Ct. at 1932. See also Coleman v. Alabama, 399 U.S. 1, 7, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1969).
Our own Third Circuit Court of Appeals, in United States v. Zeiler, 427 F.2d 1305 (3 Cir. 1970) [hereinafter cited as Zeiler I ],
extended the Wade principle to pretrial photographic identification. Id. at 1307.
It should be noted, however, that in Zeiler I, the accused was already in custody at the time the police conducted the photographic identification. Consequently, since the investigation "focused" on a particular individual "in custody" it was clear that a critical stage of the proceedings had been reached. Cf. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); and Nelson v. Peyton, 415 F.2d 1154 (4 Cir. 1969), cert. denied, Cox v. Nelson, 397 U.S. 1007, 90 S. Ct. 1235, 25 L. Ed. 2d 420 (1970). To the contrary, in the instant case, the photographic viewing occurred during the investigatory stage of the case, when the petitioner was not in custody. Therefore, this is not a case like Zeiler I, where the postcustody photographic identification could have easily been carried out in the presence of counsel. Clearly, when a suspect is still at large photographic identification is "not only mandatory but a matter of some urgency." United States v. Fowler, 439 F.2d 133, 134 (9 Cir. 1971).
Moreover, a number of recent cases have properly refused to extend Zeiler I to the pre-custody stage. Simmons v. United States, supra; United States ex rel. Woods v. Rundle, 326 F. Supp. 592, 594 (E.D. Pa. 1971); United States v. Sanders, 322 F. Supp. 947, 955 (E.D. Pa. 1971); and United States ex rel. Oliver v. Commonwealth, 321 F. Supp. 192, 193 (E.D. Pa. 1970). This court is in complete agreement with these decisions holding that Zeiler I is inapplicable to pre-custodial photographic identification and that no right to counsel attaches at this preliminary stage of an investigation.
Accordingly, petitioner's contention that his sixth amendment rights were abridged when Miss Clark viewed photographs in the absence of his counsel is totally without merit.
Although it is clear from the above analysis that petitioner was not entitled to counsel at the photographic identification, it is incumbent upon this court to evaluate the "totality of the surrounding circumstances" to ascertain if the "procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, supra, 390 U.S. at 384, 88 S. Ct. at 971. Commentators have often voiced the fear that station-house photographic identification is susceptible to undue police suggestion. See Comment, Photographic Identification: The Hidden Persuader, 56 Iowa L. Rev. 408 (1970); Note, Right to Counsel at Pretrial Photographic Identification, 2 Rutgers-Camden L.J. 347, 350 & n. 25 (1970). See generally P. Wall, Eye-Witness Identification in Criminal Cases (1965). Moreover, the Supreme Court apparently formulated its "impermissibly suggestive" test in response to the inherent possibility of inaccuracy attendant to the identification of suspects by photograph. Simmons v. United States, supra, 390 U.S. at 383-384, 88 S. Ct. 967.
One way in which suggestibility may come into play is when the police tell a witness that he is viewing pictures of individuals who have been either arrested or convicted of crimes similar to the one charged. See P. Wall, supra, at 82-83. Although the facts of the case at bar indicate that Miss Clark viewed photographs from a blue loose-leaf type notebook marked "Moral Offenders," she maintained that she was unaware of this title until after the identification was made. Therefore, no undue suggestion can be attributed to her identification from this factor.
Another danger of suggestibility arises when, as here, a witness is allowed to view mug shots in the presence of other witnesses. See P. Wall, supra, at 83. In this situation, there plainly is a risk that an uncertain witness may be persuaded to go along with a co-witness who is able to make a positive identification. This court fully recognizes that subtle psychological stimuli may come into play and taint the reliability of an identification when more than one witness is permitted to view a display of photographs. Although this procedure may pose a possibility of unfairness, we are satisfied that the identification under review was not so "impermissibly suggestive" as to run afoul of the test set out in Simmons. As one court aptly pointed out, the "impermissibly suggestive" standard is difficult to apply "because the articulation of the test describes a result but not how the result is reached." United States v. Cunningham, 423 F.2d 1269, 1272 (4 Cir. 1970). Notwithstanding the ambiguity of the Simmons test, the Court implicitly recognized certain guidelines for conducting a photographic identification. According to these standards police should not: 1) "display to the witness only the picture of a single individual who generally resembles the person he saw," or 2) "show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized," or 3) "indicate to the witness that they have other evidence that one of the persons pictured committed the crime." 390 U.S. at 383, 88 S. Ct. at 971.
The record indicates that none of these suggestive practices were utilized in the instant case. Additionally, it should be recalled that both witnesses previously viewed photographs at the Cherry Hill Police Headquarters without making an identification. This indicates that both exercised caution and care. Consequently, viewing the "totality of circumstances," we find that the identification procedure under review was not "impermissibly suggestive."
Despite our holding above, we recognize that dual identification raises the possibility of suggestion. Accordingly, it is incumbent on this court to ascertain if there was an "independent basis" for Miss Clark's in-court identification. In determining this question we are guided by the principle set out in Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441 (1963). In that case the Supreme Court stated:
We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959).