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August 2, 1974

A. T. RUNDLE, Superintendent

The opinion of the court was delivered by: LUONGO

 In 1965, Lorenzo Richardson (relator) was convicted in state court on a charge *fn1" of aggravated robbery and sentenced to a term of 7 1/2 to 15 years. Following unsuccessful state appeals and a denial by the United States Supreme Court of a writ of certiorari, Richardson petitioned this court for a writ of habeas corpus. On April 5, 1971, I granted the writ on the ground that a holster and cartridge admitted in evidence at Richardson's trial were obtained as the result of an unlawful frisk. U.S. ex rel. Richardson v. Rundle, 325 F. Supp. 1262 (E.D. Pa. 1971). Richardson had also contended that his constitutional rights were violated by the circumstances under which he was identified by the victim of the robbery. Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967). Because relator had not exhausted state court remedies on the identification issue, I declined to reach it. On June 8, 1972, the Court of Appeals reversed the grant of the writ of habeas corpus, holding that the frisk was lawful and remanded the matter to this court to consider whether the identification procedure violated due process. *fn2" 461 F.2d 860 (3d Cir. 1972).

 The facts surrounding the challenged identification were adduced at relator's state court trials. *fn3" The record was supplemented only minimally by a habeas hearing held on June 25, 1974.

 On the evening of February 18, 1963, Louis Lipschultz was alone in his drugstore at 1500 West Tioga Street, Philadelphia. At approximately 9:45 p.m., as Lipschultz was about to close the store, two men came in. One of the men had on sunglasses, but their faces were otherwise uncovered. Lipschultz was standing behind the counter, approximately 20 to 25 feet from the door where the robbers entered. The two men walked directly toward him. The man without sunglasses pulled a gun and told Lipschultz, "This is a hold-up. Stick 'em up." The man with sunglasses walked to the cash register and tried to open it. Lipschultz turned toward him and shoved him. At that moment, the gunman, who had stepped behind Lipschultz when he turned toward the cash register, struck him on the head and knocked him unconscious. Before Lipschultz regained consciousness, the robbers fled the drugstore.

 At about this time, *fn4" Police Officers John Penko and Ralph Meehan were cruising in a patrol wagon in an easterly direction on Tioga Street in Philadelphia. Having been informed by their superiors of a recent rash of robberies of drugstores by teenage gangs in the area, they were en route to checking out the Lipschultz drugstore at closing time. About a half block from their destination, the officers observed four black male teenagers, all wearing iridescent raincoats and pork pie hats, running from the steps of the drugstore in the direction of the police wagon. The boys ran past the police vehicle, turned south onto Sydenham Street at the next corner and then turned into an alley leading toward 15th Street. The police became suspicious and gave chase, but lost the boys when they turned into the alley. The officers proceeded to the next block (Ontario Street) where they observed a group of black youths on the corner of 15th and Ontario wearing the same type clothing as those observed running from the drugstore. At the approach of the patrol vehicle, three of the youths ran south on 15th Street. They were pursued by Officer Penko in the patrol wagon. Meanwhile, Officer Meehan, who had alighted from the vehicle, seized the fourth, Richardson, who had started to walk west on Ontario Street. Meehan escorted Richardson toward the patrol wagon. He frisked Richardson and found an empty leather holster and a.22 caliber bullet in his pants pocket. A moment later, Jacqueline Gaines, who had witnessed the chase, walked up and handed Officer Meehan a.25 caliber pistol which she stated one of the youths had dropped at the corner of 15th and Ontario. At this point, Meehan placed Richardson in the patrol wagon.

 The officers then proceeded to the drugstore. Mr. Lipschultz had just regained consciousness from the blow on the head, and he was applying ice to his wound. The police asked if anything had happened there and Lipschultz said that he had been held up. Officer Meehan responded, "Well, come out here. I think we got the man." Upon reaching the police wagon, the officers told Richardson to slide forward so that Lipschultz could see him. Richardson stuck his head out of the back of the wagon, and Lipschultz identified him as one of the men who had robbed him. There was a light in the front of the wagon but it provided no illumination at the rear. Richardson was not asked to step out of the wagon. Lipschultz had not provided the police with any description of the robbers before viewing and identifying Richardson as one of the men who robbed him. Later that evening at the police station, Lipschultz again confronted Richardson singly (not in a lineup) and again identified him as one of the men who had robbed him. At this time, he had the opportunity to view relator fully. Lipschultz was shown another suspect at the police station, but he did not identify him as one of the two men who had been in his store.

 On these facts, relator argues that the confrontation at the police wagon was so inherently "suggestive" that the admission into evidence of that identification violated due process. He argues further that Lipschultz' later identifications, at the police station and at trial, were irreparably tainted by the first unlawful showup.

 The standard for determining whether the confrontation between Lipschultz and relator violated due process is furnished by a series of Supreme Court cases, of which Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1973), is the most recent and comprehensive. *fn5" The Court, speaking through Justice Powell, made it clear that while "suggestive confrontations are disapproved," and "unduly suggestive ones are condemned," 409 U.S. at 198, suggestiveness alone does not require the exclusion of the resulting out-of-court identification. The crucial question is whether based on a totality of the circumstances, there "is a very substantial likelihood of . . . misidentification." Biggers, supra, at 198. The main focus is on the reliability of the out-of-court identification, rather than the suggestiveness of the confrontation, and "the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." 409 U.S. at 199-200.

 Of these indicia of reliability spelled out by the Supreme Court in Biggers, the amount of time elapsing between crime and confrontation assumes great importance. In the instant case, the challenged showup occurred within minutes after the robbery. The lower courts have been virtually unanimous in approving prompt, on-the-scene show-ups "despite inevitable elements of suggestivity, because of the general reliability of identifications close in time to the offense." *fn6" The Court of Appeals for the District of Columbia has most persuasively explained the reasons for viewing such show-ups as an exception to the general rule that a witness should not confront a suspect singly. As Judge (now Chief Justice) Burger wrote for the panel in Bates v. United States, 132 U.S. App. D.C. 36, 405 F.2d 1104, 1106 (1968):

"There is no prohibition against a viewing of a suspect alone in what is called a 'one-man showup' when this occurs near the time of the alleged criminal act; such a course does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. The rationale underlying this is in some respects not unlike that which the law relies on to make an exception to the hearsay rule, allowing spontaneous utterances a standing which they would not be given if uttered at a later point in time. An early identification is not error . . . . Prudent police work would confine these on-the-spot identifications to situations in which possible doubts as to identification needed to be resolved promptly; absent such need the conventional line-up viewing is the appropriate procedure."

 Chief Judge Bazelon elaborated in Russell v. United States, 133 U.S. App. D.C. 77, 408 F.2d 1280, 1284 (1969):

"Recognition of a person or face would seem to be as much the product of a subjective mental image as of articulable, consciously remembered characteristics. A man may see clearly in his 'mind's eye' a face or a figure which he is hard put to describe adequately in words. Though the image of an 'unforgettable face' may occasionally linger without any translation into words, photographic recall is most often ephemeral. Vivid in the flash of direct observation, it fades rapidly with time. And the conscious attempt to separate the ensemble impression into particular verbalized features, in order to preserve some recollection, may well distort the original accurate image so that it is the verbalized characteristics which are remembered and not the face or the man.
Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will 'if anything promote fairness, by assuring reliability' . . . ."

 For these reasons, "absent special considerations of unfairness, prompt on-the-scene confrontations do not entail due process ...

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