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September 3, 1968

Cassino CLARK

The opinion of the court was delivered by: MASTERSON

 The defendant, Cassino Clark, has been charged in an indictment filed August 1, 1967, with one count of robbery of a post office using a dangerous weapon in violation of Title 18 U.S.C. ยง 2114. He now moves both to suppress material evidence, taken from his person and from his residence, and to suppress at trial the identification testimony of five government witnesses. A full hearing on these two motions was conducted between January 2 and January 5, 1968, and subsequently counsel briefed and argued the relevant legal issues. At the hearing the following relevant facts were established.

 At approximately 3:25 P.M. on June 29, 1967, a lone Negro male entered the United States Post Office at 5848 Market Street in Philadelphia, Pennsylvania. He walked over to the service counter and, while brandishing a sawed-off shot gun, he vaulted over the counter into the private work area of the Post Office. At this time he ordered the Post Office employees to lie on the ground and not to look at him. He also ordered one of them, Mr. Harry White, to fill an overnight bag with money. After getting approximately $1200.00 he dashed out of the Post Office.

 A short time after the robbery two members of the Philadelphia Police Department, Detective Ralph Geary and Detective George Busch, arrived at the Post Office and interviewed the employees who had witnessed the robbery. N.T. pp. 19-20. A member of the Philadelphia Mobile Crime Detection Unit, Mr. Harry Gratman, accompanied them, and, after sealing off an area of the Post Office including the service-counter, he "lifted" several palm prints from the counter. N.T. p. 25.

 At approximately 6:45 P.M. an officer from the Laboratory informed Detective Busch that a comparison of the palm prints indicated that the defendant was the person whose prints had been lifted from the Post Office counter. Shortly thereafter Busch obtained a warrant for the arrest of the defendant from a Philadelphia magistrate. N.T. p. 28. Busch's affidavit in support of the warrant, which was introduced into evidence at the hearing, contained only the simple statement that the defendant had committed the Post Office robbery. *fn2"

 That evening at 9:00 P.M. Captain Gregore Sambor of the Philadelphia Police, apprised of Clark's implication by both the palm print comparison and the report from the informer, directed a prowl car officer, Sergeant Clark Rich, to be on the lookout for a pink and white Rambler in which the informer had said Clark would be riding. N.T. pp. 128, 186. Sergeant Rich sighted the car making an improper turn at an intersection, but the car eluded his chase. This officer then sent out a "wanted message", based upon the traffic violations he had observed, and at 9:50 P.M. the car was apprehended. The arresting officers, Patrolmen Howard Bradway, Carl Richards, and Robert McBride, who had not been told why the car was to be stopped, were told to take the two occupants of the car, the defendant and the driver, to the West Detective Division at 5500 Pine Street in Philadelphia. Detective Busch was at the police station when they arrived and he searched the defendant, removing a key and $287.00 in cash from him. N.T. pp. 18-19.

 Some time prior to the defendant's arrest, Stephen Combs, an Inspector for the Post Office Department, pursuant to the directions of Captain Sambor requested five Post Office employees, Edmond Lederer, Harry White, Reuben Brachman, Hobart Maddox, and James J. Vaccaro, to come to the West Detective Division for the purpose of viewing photographs of suspects. N.T. pp. 127, 303. At the direction of Captain Sambor, six photographs, to be as "* * * similar as possible * * *", had been taken from the police files. N.T. pp. 271, 284. Because the defendant was then a strong suspect, based upon the palm print identification and the informer's information, his photograph was included among the group of six. The pictures were of six Negro males, all of about the same general height, weight, build, complexion and age. N.T. pp. 107, 127, 134. *fn3" The police arranged the photographs two abreast in a line. N.T. p. 298.

 Shortly after 10:00 P.M. Combs asked four of the employees who had remained at the station to look into a detention room. N.T. pp. 112, 287. The defendant was sitting in this room with five other Negro men, i.e. the driver of the Rambler, two Negro policemen dressed as civilians, and two other men who were brothers and suspects in connection with an unrelated crime. N.T. pp. 147-149. The men all were dressed similarly: all wore dark civilian slacks, none wore a tie, all were handcuffed, and all wore short-sleeve shirts - four of the men wore white shirts while the defendant and his companion wore Banlon shirts. N.T. pp. 119, 130. The men were not particularly similar, however, in regards to their physical characteristics. *fn4"

 Inspector Combs led each of the four witnesses individually to a window in the door of the room for purposes of making the observation. Combs neither mentioned the defendant's name to these witnesses nor did he suggest that the defendant was a strong suspect. N.T. pp. 115, 301-302. Maddox and White again positively identified the defendant as the robber. N.T. pp. 114, 131, 154, 157. Lederer and Brachman also testified, however, that they had identified the defendant at that time. N.T. pp. 368, 354.

 After all of the employees had looked into the detention room they remained at the station house for several minutes, during which time they saw the police take the defendant from the room. N.T. pp. 310, 311. At about this time, between 11:00 and 11:30 P.M., and after both the display of the photographs and the observation of the defendant in the detention room, Detective Geary interrogated the defendant and told him that he was being arrested. N.T. p. 245. *fn5"

 Detective Busch then obtained a search warrant for the defendant's premises from the same Magistrate who had issued the arrest warrant earlier that day. N.T. pp. 32-35. Issuance of this warrant was based upon the witnesses' identification of the defendant. N.T. pp. 39, 43-44. *fn6" Busch served the warrant at approximately 11:25 P.M. and at that time he seized from the defendant's premises the following articles: a sawedoff shotgun, two shotgun shells, a pair of sunglasses, adhesive tape, handcuffs with a key inserted in them, brown manilla paper, and miscellaneous papers including a probation card made out in the defendant's name. N.T. pp. 19, 46-47.

 Finally, several weeks after the date of the robbery, the police asked Vaccaro, who had left the police station on the night of June 29th before any of the witnesses had looked into the detention room, to come to the West Detective Division to identify some money purportedly associated with the Post Office robbery. N.T. p. 385. At that time the police asked Vaccaro to walk by a cell in the station-house. N.T. pp. 385, 390-391. The evidence indicates that at that time Vaccaro observed the defendant confined in one of these cells and identified him as the robber. N.T. pp. 390-391.


 The defendant relates each of his motions to suppress to several allegedly improper police procedures which took place during the early stages of the government's proceedings against him which are described above. His contentions, and the Court's disposition of them, may be understood best by chronologically outlining the alleged improprieties.

 The defendant's initial contention is that his arrest was illegal. He argues that the arrest warrant obtained by Detective Busch was defective because Busch presented the magistrate with no factual information upon which the latter independently could have determined whether or not there was probable cause for the arrest. See, Aguilar, supra, 378 U.S. at p. 114, 84 S. Ct. 1509. The defendant maintains that, because his arrest was made subsequent to the time when the allegedly defective warrant was issued, it can not be considered as a valid arrest without a warrant based upon probable cause. Instead, he argues that if the warrant was defective the arrest itself must also be defective. *fn7" He concludes, therefore, that all evidence produced as a result of this allegedly illegal arrest, including the evidence taken from his person and the material evidence later produced by the search, must be suppressed as "* * * fruits of the forbidden tree". See, Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Moreover, he contends that the alleged illegality of his arrest independently taints all identification testimony which could be offered at trial by the five witnesses who observed him at the West Detective Division because the opportunity for their identification resulted directly from that illegal arrest.

 Secondly, the defendant contends that the police acted improperly in presenting photographs of suspects to the prospective identification witnesses. He argues both that counsel should have been present at this time and that the totality of circumstances at this time were "* * * unnecessarily suggestive and conducive to an irreparable mistaken identification". The defendant therefore concludes that testimony at trial relating to the photographic identification must be barred. See, Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, (1968), and Stovall v. Denno, 388 U.S. 293, 301-303, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Moreover, he contends that any other identification testimony at trial by those witnesses to whom the photographs were shown must be barred because such testimony would not be "* * * based upon observations of the suspect other than the (allegedly tainted photographic) * * * identification." See, United States v. Wade, 388 U.S. 218, 240, 87 S. Ct. 1926, 1939, 18 L. Ed. 2d 1149 (1967), Simmons, supra, and Stovall, supra. Finally, he maintains that the illegal arrest also vitiates the search, because the warrant authorizing that search was based upon identifications improperly elicited at the photographic display, and that, therefore, all material evidence produced by the search must be suppressed.

 Thirdly, the defendant contends that the police acted improperly in permitting the prospective witnesses to observe him while he was in the detention room. He argues that this procedure constituted the type of pre-trial confrontation which the Supreme Court in Wade held could not be conducted in the absence of counsel. He therefore maintains that testimony relating to this confrontation must be barred. See, Gilbert v. State of California, 388 U.S. 263, 273-274, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) and, also, that any in-court identification by the witnesses who observed him in the detention room must be barred because such testimony would not have an "* * * independent source * * *" See, Gilbert, supra, 388 U.S. at p. 272, 87 S. Ct. 1951 and Wade, supra, 388 U.S. at pp. 240-242, 87 S. Ct. 1926. Finally, he maintains that this illegal viewing of his person independently destroys the foundation of the search because the warrant authorizing the search was based upon it.

 Fourth the defendant contends that it was improper for the police to permit the four prospective witnesses who had remained at the police station to observe him being led away from the detention room in the custody of the police. By reasoning similar to that outlined above, he argues that this conduct must result in the suppression at trial of all identification testimony relating to this event, at least, by these four witnesses.

 Finally, the defendant contends that it was improper for the police to take the witness James Vaccaro to the police station several weeks after his arrest and to permit him to observe the defendant while the latter was detained there in a cell. He argues that this procedure was "* * * unnecessarily suggestive and conducive to irreparable mistaken identification "* * *" and that, therefore, any testimony by Vaccaro which relates to this occurrence must be barred at trial. See, Stovall, supra, 388 U.S. at pp. 301-303, 87 S. Ct. at p. 1967. He contends also that all other in-court identification testimony by Vaccaro must be barred at trial because it would be testimony tainted by this improper procedure. See, Wade, supra, 388 U.S. at p. 240, 87 S. Ct. 1926.

 The government has opposed both of defendant's motions. It contends initially that the defendant's arrest was proper because the arresting officers, armed with the knowledge conveyed to their direct superiors by the informer, had probable cause to believe that the defendant had committed the Post Office robbery. Conceding that the warrant itself might have been invalid, the government argues that this does not destroy the legality of the separate procedures actually employed in bringing the defendant into custody.

 The government also contends that neither the display of the photographs nor the observation of the defendant in the detention room at the West Detective Division occurred at a critical stage of the prosecution requiring the presence of defense counsel. It contends also that neither of these procedures were conducted in an "* * * impermissibly suggestive * * *" fashion which would require the barring at trial of any related identification testimony. Conceding that either of these procedures might have been improper, however, the government argues that incourt identification testimony by these witnesses still should be admissible at trial because such testimony would be based upon untainted observations of the defendant. See, Wade, supra, 388 U.S. at pp. 240-241, 87 S. Ct. 1926.

 Some time after the argument of the defendant's motions the government informed the Court that it was withdrawing as witnesses at the trial two of the five Post Office employees, i.e. Edmond L. Lederer and James J. Vaccaro. Accordingly, the Court does not have to resolve those contentions of the defendant which relate to the proposed testimony by those two witnesses. For reasons discussed in detail below, the Court has reached the following decisions as to the defendant's other contentions:

 1) The defendant's motion to suppress testimony at trial by the three Post Office employees relating directly to the two separate confrontations at the West Detective Division between the defendant and one or more of these witnesses in the absence of defense counsel must be granted;

 2) The defendant's motion to suppress all identification testimony at trial by these three witnesses must be denied to the extent that these witnesses will be permitted to testify about the photographic display and about occurrences at the time of the robbery, and will be permitted to make in-court identifications of the defendant; and,

 3) The defendant's motion to suppress material evidence taken from his person and from his residence must be denied in its entirety.

 It should be emphasized that in denying portions of the defendant's motions to suppress the Court presently holds only that certain challenged police procedures were not constitutionally defective. Although testimony and evidence relating to and/or produced by those procedures therefore may be admissible as a constitutional matter, the trial court must still rule on whether part or all of this evidence should be admissible at trial as an evidentiary matter. For example, there is precedent which bars testimony at trial about previous out-of-court identification, such as testimony here relating to the witnesses' identification of the defendant in the police-station, on the basis that such testimony is hearsay. See, United States v. DeSisto, 329 F.2d 929, 932-934 (C.A. 2, 1964), and 71 A.L.R.2d 442 et seq. There also is precedent which holds that it is improper to admit on direct examination photographs which police have presented prior to the trial to the government witnesses. See, United States v. Reed, 376 F.2d 226, 228 f.n. 2 (C.A. 7, 1967). Finally, the trial court must decide whether the prejudice to the defendant possibly produced by the introduction at trial of certain of the material evidence, e.g. the probation card made out in his name, exceeds the probative value of that evidence.


 The defendant's contention that his arrest was illegal is based primarily upon his assertion that, although the arrest itself might have been proper if no warrant had been obtained, since it was made pursuant to an illegal warrant it therefore was unlawful. An initial difficulty with this proposition is that the evidence suggests that the arrest in fact was not made "pursuant" to the arrest warrant, but that, instead, Captain Sambor ordered the arrest because of his knowledge of the informer's report and the laboratory findings with respect to the palm prints. Assuming, however, that the arrest was made pursuant to the warrant, at least in the sense that the arrest followed the issuance of the warrant, and assuming also that the warrant was defective under Aguilar, supra, the defendant's contention still must be rejected.

 The law is clear that an arrest is lawful despite the fact that the arresting officers apparently relied upon an invalid arrest warrant if the "* * * officers had adequate knowledge independent of the warrant to constitute probable cause * * *" United States v. White, 342 F.2d 379, 381 (C.A. 4, 1965). In other words, a valid arrest will not be invalidated merely because the arresting officers possessed an invalid warrant at the time when they effected the arrest. See generally, Giordenello v. United States, 357 U.S. 480, 485-488, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 (1958), Stallings v. Splain, 253 U.S. 339, 40 S. Ct. 537, 64 L. Ed. 940 (1920), United States v. Hall, 348 F.2d 837, 841 (C.A. 2, 1965), Willis v. United States, 106 U.S.App.D.C. 211, 271 F.2d 477, 478 (1959), and Hagans v. United States, 315 F.2d 67, 69 (C.A. 5, 1963).

 In determining whether the defendant's arrest, considered as an arrest without a warrant, was lawful, the Court must decide whether the arrest was "reasonable" within the context of the 4th Amendment of the Constitution which protects persons against unreasonable arrests, i.e., "seizures", as well as against unreasonable searches:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be ...

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