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.
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."
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.