McLaughlin, Staley and Ganey, Circuit Judges.
These actions were brought in the district court under the Civil Rights Act of 1871, 42 U.S.C. § 1983, to enjoin the defendants, Philadelphia law enforcement, police and prison officials from compelling the appellants to participate in a form of police investigative proceeding known as a lineup.*fn1 The district court denied the relief sought, holding that the appellants failed to establish that they were or will be denied any right guaranteed by the Constitution. The appeals were consolidated for disposition here.
The essential facts are substantially the same in all of the cases. The facts in No. 15359 are typical. There, the appellant Roosevelt Morris had been indicted and was awaiting trial for burglary and other related offenses. He was confined in the Philadelphia Detention Center because, as the trial court found, he was unable to post bail due to his indigency. After Morris had been indicted, the victim of a burglary and rape, crimes not included in the indictment, identified some of her belongings discovered in Morris' possession when he was apprehended. This fact, coupled with the similarity between Morris' modus operandi and the method used against this victim led the police to request that Morris be viewed by the victim for the purpose of identification. In each of the other cases the police also sought to have victims of crimes view the appellants to either substantiate or negate evidence which caused the police to suspect that the appellants were guilty of further crimes.
The contentions of appellants are briefly these. They maintain that to compel them to appear in a lineup to be viewed by victims of crimes not included in their indictments without first being properly arrested for such crimes constitutes a denial of due process. They further argue that they are denied equal protection of the law because other persons also under indictment, but who are free on bail, may not be compelled to participate in a lineup. Appellants contend that this constitutes invidious discrimination because it is based on a condition of wealth. We are asked to reverse the district court's denial of the injunctions on either or both of these grounds.
We will first consider whether appellants will be denied due process. They contend that their incarceration is solely for the purpose of binding them over for trial on the charges for which they have been indicted. They maintain that compelling them to leave their cells and to participate in a lineup,*fn2 involving crimes other than those for which they have been indicted, cannot be done absent a valid arrest for those additional crimes. They further assert that their compulsory removal and participation would constitute an arrest without probable cause. See Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). These contentions stand or fall on whether an arrest must be made in every case before a suspect, not yet accused of the crime, can be placed in a lineup for the purpose of identification.
The right of the police to investigate unsolved crimes cannot be denied. Spano v. People of State of New York, 360 U.S. 315, 327, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959) (concurring opinion), as cited in Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). The scope of investigative measures used by the police necessarily includes identification of the suspected perpetrator by the victim or witnesses. In most cases this is the most positive method of solution. Indeed, the appellants readily concede that the use of a lineup is not illegal per se and can be a proper police practice. The lineup, however, is not the only means of identifying a suspect; an individual not in custody may be placed under surveillance -- he may be viewed on the streets, entering or leaving his home or place of business, at places of amusement, or at any other place where he is not entitled to privacy. In addition, the police, a victim or witness to a crime may also view a suspect in custody in either his cell or the prison yard. See Butler v. Crumlish, 229 F. Supp. 565, 566, 568, terminated and permanent injunction denied, 237 F. Supp. 58 (E.D.Pa.1964). It is clear that a suspect need not be under arrest to be observed. There is no law or decision which says that a man, free or incarcerated, has a constitutional right not to be observed and possibly identified as the perpetrator of a crime even though no formal charges have been made.
Appellants do not deny that they may be viewed while participating in their normal prison routine; however, they assert that they may not be compelled to present themselves for observation. In denying the injunction, Judge Luongo found that "it is not feasible to have inmates subjected to the view of victims in cell blocks, dormitories or other general population areas because of the danger of harm to the viewers and the threat to the security of the institution." Morris v. Crumlish, 239 F. Supp. 498, 499. In view of this finding, the appellants' assertion, practically speaking, is that they may not be viewed at all. Thus, the police official, charged with the responsibility of solving crimes and apprehending the perpetrators, would be deprived of his most positive method of crime solution -- identification of the suspect.
It has been said that the line between proper police procedures and those offensive to due process is difficult to draw. Haynes v. Washington, 373 U.S. 503, 515, 83 S. Ct. 1336, 10 L. Ed. 2d 513 (1963). But where there are competing concerns, the line to be drawn must be guided by the rules of fundamental fairness. Cicenia v. La Gay, 357 U.S. 504, 509, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958). The determination of such rules "necessarily depends upon all the circumstances of the case." Crooker v. State of California, 357 U.S. 433, 439-440, 78 S. Ct. 1287, 1292, 2 L. Ed. 2d 1448 (1958); Escobedo v. State of Illinois, 378 U.S. at 491, 84 S. Ct. 1758.
Lineups are held generally on Thursday evenings at the Detention Center. Both the suspect and his attorney are notified that he is to be placed in a lineup; the attorney is also given the opportunity to be present. The suspect remains in the custody of the prison guards on one side of a glass partition which divides the room into two parts; the victims and witnesses of crimes stand on the other side of the room. Such procedure makes the suspects available for identification, while maintaining security and protecting the victims and witnesses. No other solutions are apparent. We think that the use of the lineup, as found by the district court in these cases, is a reasonable solution to a practical problem and that it is in accord with the rules of fundamental fairness.
The contention made by the appellants that there first must be an arrest before they are taken from their cells to be placed in a lineup has no merit, for the sole physical attribute of an arrest is the taking into custody. Here, it would be anomalous to require an arrest, for the appellants are already in custody. Compare Barrett v. United States, 270 F.2d 772, 775-776 (C.A.8, 1959); United States ex rel. Bogish v. Tees, 211 F.2d 69, 72 (C.A.3, 1954). It is clear that the Constitution does not always require that the interests of the police in quickly and efficiently solving crimes yield to every assertion of a violation of due process. Cicenia v. La Gay, supra, 357 U.S. at 509, 78 S. Ct. 1297; United States ex rel. Hart v. Maroney, 230 F. Supp. 468, 476 (W.D.Pa., 1964).
This case is unlike Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10 L. Ed. 2d 513, where police conduct was also alleged as offensive to due process. There the Court, in deciding that question, was quick to point out the lack of necessity of the particular conduct involved despite the contention that the tactic was necessary in the interests of justice. We find that the lineup procedure as employed by the Philadelphia police and prison authorities is a reasonable procedure necessitated by the particular circumstances here, and is not violative of due process. Escobedo v. State of Illinois, 378 U.S. at 491, 84 S. Ct. 1758.
We must next consider whether the use of the lineup procedure, as appellants contend, makes them active participants in a police investigation. Appellants do not detail their objections on this score; aside from its equal protection implications which we will subsequently discuss, we believe this argument has self-incrimination overtones. See Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). However, we find no merit in such a contention. The privilege against self-incrimination was analyzed by the Supreme Court in a classic opinion by Mr. Justice Holmes, Holt v. United States, 218 U.S. 245, 31 S. Ct. 2, 54 L. Ed. 1021 (1910), where it was said:
"* * * The prohibition of compelling a man * * * to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof." Holt v. United States, supra at 252-253, 31 S. Ct. at 6. (Emphasis supplied.)
Dean Wigmore discussed the method of identification as being in violation of the privilege against ...