The opinion of the court was delivered by: VANARTSDALEN
VanARTSDALEN, District Judge.
Petitioner seeks a writ of habeas corpus. Convicted on May 8, 1969 of aggravated robbery by Honorable G. Fred DiBona, Judge, Court of Common Pleas, Criminal Division, Philadelphia County, Pennsylvania, on a waiver of a jury trial, he was sentenced to serve a minimum of two and a maximum of ten years in prison. Petitioner filed appeal to the Pennsylvania Superior Court, which in a per curiam opinion, affirmed the conviction. Commonwealth v. Hollman, 216 Pa. Super. 834, 266 A. 2d 491 (1970). The Supreme Court of Pennsylvania denied the petition for allowance of an appeal on August 20, 1970, No. 128-A, Misc. Docket 18.
Petitioner contends that his federal constitutional rights, guaranteed by the Fourteenth Amendment, including the Fourth and Sixth Amendments that have been made applicable to state proceedings under the Fourteenth Amendment, were violated. The attack is three-fold. Petitioner alleges that the police, without probable cause, took him into custody, and thereupon photographed him, which photograph constituted an illegal search and seizure, violating the Fourth and Fourteenth Amendments. The photograph so taken was hereafter utilized for a photographic identification by the robbery victim without counsel being present to represent petitioner. Petitioner asserts such identification deprived him of the right to counsel during a critical stage of the proceedings, in violation of the Sixth and Fourteenth Amendments. Finally, the photographic identification was inherently suggestive and it tainted the in-court identification to such an extent as to prevent a fair trial as mandated by the Fourteenth Amendment.
These same basic issues were consistently raised and decided on the merits during the state court pretrial suppression hearing, trial, direct appeal to the Superior Court and in the petition for appeal to the Supreme Court. The Post Conviction Hearing Act of Pennsylvania, Pa. Stat. tit. 19, § 1180 et seq., § 1180-3(d) (Supp. 1971), does not permit the relitigation of these identical issues, nor may the same matters again be raised by habeas corpus in the state courts. Commonwealth v. Conard, 212 Pa. Super. 133, 240 A. 2d 388 (1968); citing Commonwealth v. Allen, 428 Pa. 113, 237 A. 2d 201 (1968). Petitioner has, therefore, exhausted his State remedies and may now seek relief through the federal courts.
A pretrial suppression hearing was held giving a full and fair examination of the questions concerning the arrest and photographic identification. The transcript of this hearing and of the trial have been made a part of this record. The facts are not disputed. The issues were argued by briefs submitted by the District Attorney's Office of Philadelphia County and by petitioner's appointed counsel, the Public Defender Association of Philadelphia. A further evidentiary hearing is unnecessary to determine the present issues. 28 U.S.C.A. § 2254 (1971); Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States ex rel. Stukes v. Shovlin, 329 F. Supp. 911 (E.D. Pa. 1971).
The relevant facts surrounding the robbery are as follows: -- Robert Thomas was robbed at gunpoint in his well lighted grocery store by two men, whom he observed for approximately five minutes during the course of the robbery from as close as a few inches away. Immediately following the robbery he gave a description of the robbers to the police, which description was broadcast over the police radio. The investigating officers and the victim testified at the pretrial suppression hearing and at the trial concerning the descriptions given and broadcast. The description was that the robbers were two Negro males in their early twenties; one was about five feet nine inches tall, weighed one hundred fifty pounds, had black hair which was processed -- that is, straightened and combed forward, and wore a dark blue overcoat. The other, subsequently identified as petitioner, was five feet ten inches tall, weighed one hundred fifty pounds, had black hair, and wore a tan camelhair overcoat. (Transcript of Trial, pp. 6, 11, 19 and 30.) The robbery occurred about 7:45 P.M. on December 11, 1968. At approximately 11:00 P.M. on the following day, a radio police patrol car apprehended two men approximately two blocks from the scene of the robbery who appeared to the police in the patrol car to fit the description that they had heard broadcast over the police radio. The "suspects" were taken by the police to the Central Detective Division. Petitioner was one of the two suspects. He was "warned of his rights" (Transcript of Trial, p. 13) and photographed without objection and without requesting counsel to be present. An attempt to contact the victim at that time was unsuccessful, and consequently no "line-up" identification was conducted while the suspects were then in the police station. After being photographed, petitioner was discharged.
On December 14, 1968, the victim, Mr. Thomas, was located, and shown approximately twelve photographs, one of which was the photograph of Mr. Hollman taken at the police station. All of the photographs were polaroid, and all were similar to the description of petitioner. (Transcript of Trial, p. 17.) The victim made a positive identification of petitioner from among those photographs. Mr. Hollman and the suspect apprehended with him were thereupon formally arrested on warrants and indicted.
At the trial, the victim made a positive in-court identification of petitioner. The victim had ample opportunity to observe the accused; the victim was positive in his identification; the victim's identification testimony was not weakened by any prior failure to identify or prior inconsistent identification; and after cross-examination, the testimony remained positive and unqualified. In federal courts such in-court identification could be treated by the finder of the facts as a statement of fact by the victim. See United States v. Barber, 442 F.2d 517 (3rd Cir. 1971). In addition, at the trial, the pretrial photographic identification testimony, having been ruled admissible at a pretrial suppression hearing, was received in evidence.
Petitioner contends that the pretrial photographic identification was unconstitutionally admitted into evidence at the trial, because it was obtained as the product of an illegal search and seizure. Petitioner further contends that the pretrial photographic identification made without counsel being present to represent petitioner violated his constitutional right to have counsel at all critical stages of the proceedings against him. Finally, petitioner contends that the incourt identification was necessarily tainted by the prior inherently suggestive photographic identification.
Fingerprints taken while a suspect is being held in custody without probable cause constitutes "illegally seized evidence" which must be excluded at trial. Davis v. Mississippi, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676 (1969). The Fourth Amendment's prohibition of illegal searches and seizures is protected by making inadmissible at trial everything that has the "* * * common characteristic of being something of evidentiary value which the public authorities have caused an arrested person to yield to them during illegal detention. If one such product of illegal detention is proscribed, by the same token all should be proscribed." Id. at 724, 89 S. Ct. at 1396, citing with approval Bynum v. United States, 104 U.S. App. D.C. 368, 262 F.2d 465, 467 (1958). If fingerprints improperly obtained must be excluded so also logically must photographs. The exclusionary rule of the Fourth Amendment is applicable to state court proceedings under the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Consequently, photographs taken of a suspect while held in custody without "probable cause" would constitute illegally seized evidence that must be totally excluded in both federal and state court criminal proceedings.
Was there probable cause for the original apprehension of petitioner as a suspect? Although one police officer testified that petitioner was not under arrest when he was photographed at the police station, the testimony clearly reveals to the contrary. Petitioner was in actual custody of the police, as a suspect in the robbery, and he was not free to leave until after he was photographed. This detention would constitute an arrest requiring "probable cause" on the part of the arresting officers. Therefore, the Court's duty is to determine if probable cause existed by reviewing the facts and circumstances known to the arresting officers at the time of the arrest, to determine if the facts are sufficient to cause reasonable and prudent men to conclude that the person to be arrested has committed, or is committing, a crime. United States v. 1964 Ford Thunderbird, Webster Bivens, 445 F.2d 1064, p. 1068 (3rd Cir. 1971). "The determination of probable cause deals with probabilities which are 'factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
Petitioner cites Commonwealth v. Berrios, 437 Pa. 338, 263 A. 2d 342 (1970) which was cited as controlling in United States ex rel. Richardson v. Rundle, 325 F. Supp. 1262, 1264-1265 (E.D. Pa. 1971). In Berrios, the Pennsylvania Supreme Court condemned an arrest and search and seizure based upon a generalized description of the defendant. The description in Berrios given in connection with a shooting was that of three males, two Negroes in dark clothing, and one Puerto Rican in light clothing, leaving the scene walking east on Ontario Street. About twenty minutes later, police saw a Negro in dark clothing and a Puerto Rican in light clothing walking together in an easterly direction on Ontario Street about three blocks from the shooting. On searching Berrios, the police found a gun for which he was charged with and convicted of carrying a concealed deadly weapon, and carrying a firearm without a license. He was not charged with the shooting. In the present case, the descriptions, in addition to location, number of men involved, color of clothing and race (as in Berrios), the police also had a correct description of ages, heights, weights and type of hair (including an unusual, particularized if not unique hair style as to one suspect). Therefore, the Berrios case is not apposite to the facts presently ...