[146 NJSuper Page 383] This matter presents the important issue concerning the scope of the state prosecutor's power to compel an individual who has been arrested to appear in a lineup for other unrelated crimes. Andrew Foy and Zachery Foy were arrested on September 23, 1976 and charged with the armed robbery of Krauszer's Dairy Store in Franklin Township, New Jersey. While they were in jail on this charge the prosecutor attempted to hold a lineup where victims of five other Franklin Township robberies would have an opportunity to view both individuals. Andrew and Zachery Foy refused to participate in the lineups, claiming that there was no probable cause linking them to these robberies. The prosecutor then filed this motion and oral argument was heard on October 1, 1976. At oral argument he produced an affidavit by Detective Grogan which set forth the State's reasons for holding the proposed lineups. The affidavit is reproduced in the margin.*fn1 After reading the [146 NJSuper Page 384] affidavit, counsel for defendants admitted, and this court agrees, that sufficient justification to place the Foys in a lineup was established for the September 23, 1976 robbery (par. 3), the September 21, 1976 robbery (par. 4), and the September 18, 1976 robbery (par. 6). Defense counsel attacked the allegations in paragraphs 5, 7 and 8 as insufficient to establish a nexus linking either of the Foys to the alleged crimes. The prosecutor countered by asserting, in the alternative, that the requisite nexus was established and, if not, that since the individuals were already incarcerated, albeit on unrelated charges, the fact of custody deprived them from objecting to the lineups.
Because of the importance of the issue involved, the court requested that briefs be submitted and set down October 15, 1976 for further argument. During this period, on October 5, 1976, the court was advised by the prosecutor that Zachery Foy had been released on bail. The prosecutor, recognizing the limited nature of his proofs and the fact that Zachery Foy was now out on the street, withdrew his request to compel Zachery Foy to appear in a lineup for the crimes alleged in paragraphs 5, 7 and 8 of Detective Grogan's affidavit. Andrew Foy, however, was unable to post bail and the prosecutor's motion with respect to the Somerset Farms robbery alleged in paragraph 5 of the affidavit is still before this court.
While the prosecutor admits that he has produced insufficient information to have this court order a lineup where the defendant is not already in custody, he argues that United States v. Anderson , 160 U.S. App. D.C. 217, 490 F.2d 785 (1974), and related cases clearly authorize the State to do so in this instance. In Anderson defendant was arrested in connection with an attempted armed robbery which occurred on April 1, 1972. While in jail on this charge he was placed in a lineup and viewed by victims of a previous robbery. The only similarity between the two robberies was they both took place in the same building. The court, in rejecting defendant's contention that he was made to appear in a lineup without a finding of probable cause, focused on the nature of the Fourth Amendment intrusion. The court held that since the defendant was already in custody, the lineup implicated no additional liberty infringements. Therefore, so long as the lineup itself comported with due process standards, a suspect already in custody could lawfully be placed in a lineup for any number of offenses. Id. at 789.*fn2 See also, People v. Hodge , 186 Colo. 189,
526 P. 2d 309 (Sup. Ct. 1974) (en banc); State v. Fierro , 107 Ariz. 479, 489 P. 2d 713 (Sup. Ct. 1971); People v. Hall , 24 Mich. App. 509, 180 N.W. 2d 363 (Ct. App. 1970), aff'd, 396 Mich. 650, 242 N.W. 2d 377 (Sup. Ct. 1976).
This court agrees that the constitutional prohibition against unreasonable search and seizure would not be violated if the State's motion were granted. The act of having one's facial features viewed does not constitute a search, for the Fourth Amendment extends no protection to what a person "knowingly exposes to the public." Katz v. United States , 389 U.S. 347, 351, 88 S. Ct. 507, 511, 19 L. Ed. 2d 576, 581 (1967). See also, Cardwell v. Lewis , 417 U.S. 583, 591, 94 S. Ct. 2464, 2469, 41 L. Ed. 2d 325, 335 (1974); United States v. Dionisio , 410 U.S. 1, 14, 93 S. Ct. 764, 771, 35 L. Ed. 2d 67, 79 (1973); United States v. Roders , 475 F.2d 821 (7 Cir. 1973); In re Toon , 364 A.2d 1177 (D.C. App., 1976). Nor is the Fifth Amendment's prohibition against self-incrimination implicated. United States v. Wade , 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
This court is also unwilling to rule that the movement of a defendant from his jail cell to the room in which the lineup is conducted constitutes a "seizure" within the meaning of the Fourth Amendment. Incarcerated individuals may validly be subjected to the rules of the prison "so long as the conditions of confinement do not otherwise violate the Constitution." Meachum v. Fano , 427 U.S. 215, 224, 96 S. Ct. 2532, 2538, 49 L. Ed. 2d 451, 459 (1976). If the administrative transfer of an individual from one prison to another without a prior hearing is constitutionally sanctioned, Meachum v. Fano, supra; Rocca v. Groomes , 144 N.J. Super. 213 (App. Div. 1976), then surely temporary intraprison movement is not constitutionally infirm.
The failure of this court to rule favorably on defendant's motion based on Fourth Amendment criteria is not determinative of the issue. "Even though evidence is not within a testimonial privilege, the due process clause protects against the use of excessive means to obtain it." United States v. Doe , 405 F.2d 436, 438 (2 Cir. 1968). Considerations of due process and equal protection greatly concern this court. The equal protection issue is most readily apparent. Although Andrew and Zachery Foy, brothers, were arrested for the same armed robbery charge, only Andrew Foy, or so the prosecutor contends, can still be compelled to appear in a lineup and be viewed by victims of other crimes. The reason for this distinction is not in the heavier quantum of evidence against Andrew Foy, but that Zachery Foy is free on bail. Since Zachery Foy is presently at liberty he may not be temporarily detained except on "articulable facts [sufficient] to permit meaningful evaluation of the reasonableness of the proposed lineup." Wise v. Murphy , 275 A.2d 205, 217 (D.C. App. 1971). Thus, it appears that Zachery Foy is able to be beyond the reach of the State merely because his personal finances exceed those of his brother.
The claim that this result would constitute a denial of equal protection has been raised in a number of jurisdictions
and, with the exception of New York, been rejected. United States v. Anderson , 406 F.2d 719 (4 Cir.), cert. den., 395 U.S. 967, 89 S. Ct. 2114, 23 L. Ed. 2d 753 (1969); United States v. Evans , 359 F.2d 776 (3 Cir.), cert. den., 385 U.S. 863, 87 S. Ct. 120, 17 L. Ed. 2d 90 (1966); Rigney v. Hendrick , 355 F.2d 710 (3 Cir. 1965), cert. den., 384 U.S. 975, 86 S. Ct. 1868, 16 L. Ed. 2d 685 (1966); State v. Fierro , 107 Ariz. 479, 489 P. 2d 713 (Sup. Ct. 1971); People v. Nelson , 40 Ill. 2d 146, 238 N.E. 2d 378 (Sup. Ct. 1968); People v. Stringer , 129 Ill. App. 2d 251, 264 N.E. 2d 31 (App. Ct. 1970), aff'd, 52 Ill. 2d 564, 289 N.E. 2d 631 (Sup. Ct. 1972); People v. Hall , 24 Mich. App. 509, 180 N.W. 2d 363 (Ct. App. 1970), aff'd , 396 Mich. ...