A. Was Relator Represented by Counsel at the Lineup?
Based upon the uncontradicted testimony of Mr. Earley that he did not undertake to represent relator at the October 13 lineup, we find that relator was without counsel at that lineup. Our finding is unaffected by the facts that in general terms the lineup appeared to be a fair, i.e., unsuggestive one, and that nothing is known to have been said by the police officers to any of the victims or witnesses as they viewed the lineup which could be construed as suggestive;
it is also unaffected by the fact that Mr. Earley's presence may well have contributed to a prophylactic atmosphere. We do not agree with, nor have we been cited precedent for, the proposition that Mr. Earley's presence on behalf of Gray in connection with an unrelated charge constructively satisfied the asserted requirement that relator be represented. Although the Wade Court left open the question "whether the presence of substitute counsel might not suffice where notification and presence of the suspect's own counsel would result in prejudicial delay," 388 U.S. at 237 (emphasis supplied),
that issue is not fairly raised in the present context where the police knew that relator was in custody more than a week before the lineup (and that he would remain so), had already obtained a warrant for his arrest, and had obtained three positive photographic identifications from the four existing witnesses almost a full week before the lineup.
No prejudicial delay would have resulted in the police investigation by advising relator of the impending lineup so that he could engage counsel.
Furthermore, although Mr. Earley's presence doubtless helped to assure a fair composition to the lineup, he was not even aware of any charges relating to the Greenberg robbery. He therefore would not be attuned to any communication between the police and the witnesses to the Greenberg robbery (one of whom was a victim, see Wade, supra, 388 U.S. at 230). Moreover, he could not focus on the lineup as it related specifically to the Greenberg robbery
and therefore would have been hard pressed to evaluate "recognition by viewers, and . . . manifestation by the viewers of the identification or lack of identification." United States v. Daniels, 506 F.2d 791, 795 (3d Cir. 1974) (Adams, J., concurring), cert. denied, 421 U.S. 967, 95 S. Ct. 1957, 44 L. Ed. 2d 454 (1975). See Wade, supra, 388 U.S. at 228-35, 87 S. Ct. 1933-36.
We thus conclude that, if Wade and Gilbert are otherwise applicable to this case, Mr. Earley's presence did not amount to sufficient compliance with its mandate.
B. The Right to Counsel at the Lineup Identification -- An Application of Kirby
With the decisions in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967), the Supreme Court sought to provide some assurance that a defendant in a criminal case would not be convicted as a result of a critical out-of-court identification procedure which was or might have been unnecessarily suggestive of his guilt. The corrective measure which the Supreme Court applied was to require, under the Sixth Amendment's guarantee of the right to counsel, that a defendant placed in a lineup be given the opportunity to have representation by counsel. By this means the Court introduced into identification procedures an observer who could: (1) take steps to make certain that a lineup was not suggestive; or (2) at least note the ways in which a lineup was likely to lead to misidentification, for purposes of later suppression motions or for cross-examination of witnesses testifying to positive in-court or out-of-court identifications. To enforce its requirement, the Court announced a per se exclusionary rule for evidence of out-of-court identifications at which counsel was not present and not intelligently waived. Gilbert, 388 U.S. at 272-273. The question whether in-court identifications were then admissible would depend on whether the government could show by clear and convincing evidence that the in-court identification arose from an independent source and therefore was not tainted by the prior illegality. Wade, 388 U.S. at 240.
In 1972, however, the Supreme Court sought to define explicitly the stage at which the right to counsel arose and thus the stage at which the Wade-Gilbert exclusionary rule was triggered. In Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972), the Court announced that the right to counsel, which was the basis for the exclusionary rule, arose only "at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." 406 U.S. at 689.
The question of exactly when a prosecution has been initiated was not put to rest by the Kirby pronouncement. In determining when adversary judicial proceedings are in fact initiated the cases have reached varying results depending not only on the facts of the given case, but also upon the law of the jurisdiction in which the facts arose. The question is a difficult one in the general context involved here, i.e., where the person asserting a Wade-Gilbert claim is under arrest or is somehow restrained of his liberty but has not been indicted or arraigned or had a preliminary hearing. More specifically, it is not always clear whether or when the issuance of an arrest warrant (based upon a neutral judicial finding of probable cause) or the event of an actual arrest, with or without a warrant, constitutes the initiation of adversary criminal judicial proceedings.
The Third Circuit has considered this area of the law on two occasions, but neither case is dispositive here. In United States v. Coades, 468 F.2d 1061 (3d Cir. 1972), the Court held that two defendants who had been arrested for a bank robbery and were in custody but had not yet had preliminary hearings were not entitled under Kirby to counsel at their (several) lineups. And in Government of the Virgin Islands v. Navarro, 513 F.2d 11, 18 (3d Cir.), cert. denied, 422 U.S. 1045, 45 L. Ed. 2d 698, 95 S. Ct. 2662 (1975), after upholding a District Court finding that a suspect who was subjected to a "showup" in a police station was not under arrest, the Court added by way of dictum that even if the showup had followed an arrest the failure to provide counsel would not have tainted the identification. The Court stated that "the presence of counsel is not constitutionally required at a confrontation held after arrest but before the initiation of 'judicial criminal proceedings.'" 513 F.2d at 18.
However, neither Coades nor Navarro required the Third Circuit to adjudicate or consider the question of the right to lineup counsel after the issuance of a formal arrest warrant, as opposed to a warrantless arrest. Moreover, where we are dealing with the importance of the issuance of a state arrest warrant for Kirby purposes, we must still consider the impact of state law on the point. In this case the state law is expressed in Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1976).
We will also consider in this regard two Second Circuit cases in which the effect of the issuance of an arrest warrant is discussed.
We turn first to the case of United States ex rel. Robinson v. Zelker, 468 F.2d 159 (2d Cir. 1972), cert. denied, 411 U.S. 939, 36 L. Ed. 2d 401, 93 S. Ct. 1892 (1973), on which the Pennsylvania Supreme Court relied in Richman. In that case, a police officer was on the scene of an armed robbery and shooting and gave chase to the escaping felons, first by car and then on foot through mid-town Manhattan. He apprehended two occupants of the get-away car, but lost the foot race to the third. Based in part on the officer's description, a judge "directed that a complaint issue charging appellant (Robinson) with the crimes of robbery in the first degree, assault in the first degree and possession of a weapon as a felony." Id. at 162. Thereafter Robinson was apprehended and identified by the eyewitness police officer at an uncounseled showup.
In holding that the arrest warrant initiated the prosecution for Kirby purposes,
the Court relied in part upon the applicable provision (§ 144) of the New York Code of Criminal Procedure, which by its own terms (apparently with the statute of limitations in mind) stated: "A prosecution is commenced . . . when an information is laid before a magistrate charging the commission of a crime and a warrant of arrest is issued by him. . . ." Id. at 160 n.2. In the same footnote the Court noted that the issuance of an arrest warrant was the equivalent of the filing of an indictment under § 144. The Court concluded:
Here the arrest warrant itself commanded that appellant be brought forthwith before the Criminal Court "to answer the said charge, and to be dealt with according to law." These were formal criminal proceedings, for the warrant had been signed by a judge based on an "information upon oath" that appellant did commit the crimes of assault, robbery and possession of a dangerous weapon. This being true, Wade required counsel at the show-up . . . . Time was not of the essence, a lineup could have been arranged and there appeared to be no "substantial countervailing policy considerations" against requiring the presence of counsel as suggested in Wade. [ Id. at 163 (citation omitted).]