The opinion of the court was delivered by: WOOD
The plaintiffs in this case challenge a practice employed on occasion by the defendant police officials of seeking citizens on the street who are not suspected of any crime to participate in lineups. Jurisdiction is grounded on 42 U.S.C. § 1983, and the four named plaintiffs seek both damages and injunctive relief from the aforementioned practice which they contend deprives them of their rights under the Fourth and Fourteenth Amendments. In their complaint plaintiffs also alleged a class action, but we denied that motion without prejudice prior to trial.
On June 24, 1970, we entered an order that pursuant to Rule 65(a)(2) the trial of the action on the merits be advanced and consolidated with the hearing of the application for a preliminary injunction. After trial on July 16 and 17, 1970, and a review of the record, we render the following final Findings of Fact, Discussion and Conclusions of Law.
1. The plaintiffs in this case are Lewis Butcher, age 20, Lawrence Smith, age 15, Fred Carter, age 19, and Edwin Ballard, age 17. All are residents of the City of Philadelphia.
2. The defendants are the Police Commissioner of the City of Philadelphia and the named officers who are under his command.
3. On the afternoon of September 15, 1969, Chief Inspector Joseph Golden ordered Captain John Clark to arrange for a lineup which was to be held that evening in the Major Crimes Division of the Police Administration Building. The lineup was to include two persons who the police suspected were responsible for various robberies in Philadelphia. Several victims of the robberies were to be present at the lineup. (Stipulation)
4. Captain John Clark thereafter ordered Lieutenant John Dougherty to make certain arrangements for the line-ups. (Stipulation) Acting in pursuance of these orders, Lieutenant Dougherty looked for but was unable to find a sufficient number of police personnel or criminal suspects in custody at the Police Administration Building who he deemed suitable for use as "fill-ins" in the lineup. (N.T. 236-244) He thereupon informed Captain Clark of his difficulty in finding a sufficient number of suitable people on the premises at the Police Administration Building to use as "fill-ins". (Ibid.)
5. Inspector Edwin Parker was then ordered to have several uniformed officers obtain "fill-ins" off the street for use in the lineup.
6. Officers Richard McHugh and Joseph Kelly were thereupon directed to report to Room 104 of the Police Administration Building. (N.T. 167, 217) They were there given a photograph of the two robbery suspects and directed to obtain persons of a like description off the street to stand in the lineup that evening. (N.T. 167, 217-8)
8. After some further discussion, Butcher walked to the rear of the van, Officer McHugh opened the door, and Butcher got in. (N.T. 172-3) Officers McHugh and Kelly thereupon drove back to the Police Administration Building and took Butcher to Room 104. (N.T. 173)
9. Officers McHugh and Kelly then set out again and proceeded along Ninth Street. At Ninth and Vine Streets they observed the plaintiffs Ballard, Carter, Smith, as well as another youth, Kenneth Freeman. Carter was carrying something in a large paper bag. Officer Kelly, who was still driving the van, pulled over and asked Carter what was in the paper bag. Without comment, Carter gave the bag, which contained a half-gallon bottle ...