Defendant was convicted by a jury of armed robbery, MCLA 750.529; MSA 28.797, and sentenced to serve 7-1/2 to 20 years in prison. He now brings this delayed appeal.
On September 12, 1967, a man entered a Detroit branch office of Associаte Finance Company, walked up to a teller’s window serviced by one Cecilia (Des-Marais) Hill, gave her a paper bag, and demanded money. Mrs. Gayle (Fortner) Stefanski, the cashier at a neighboring window, stаted that she saw her cohort hand a paper bag over the counter to the defendant. The manager of the office, having also observed the transaction, gave chase unsuccessfully. Keith Benning, another witness for the prosecution, testified to the following: On September 12,1967, he was sitting in a truck which was parked near the finance company when a 1966 shiny red Ford Galaxie 500 pulled up in front of him and stopped; lеaving the motor running, the driver got out, kicked the tire, and got back in, whereupon another man ran out of the alley, jumped into the car, and they sped off; he did not see the running man’s face; however, he did notice that the rear license plate was hanging from a piece of wire; he noted the license number of the car. 1 Joseph Sweeney, of the Detroit Police Department, stated that he had received a radio description of the car allegedly involved in the robbery and recalled having seen such a car in his patrol area. The day after the robbery he spotted the car, and arrested thе driver, who is the defendant in this case. The car was seized by the police.
The same day the defendant was arrested, Mrs. Hill, Mr. Benning, and the manager of the finance *766 company came down to the policе station for the purpose of attempting to identify the accused at a lineup. 2 The lineups were conducted separately with defendant being represented by counsel at each. The results of thе showups were as follows: Both the manager and Mrs. Hill were unable to identify the defendant and, in fact, made incorrect identifications ; Mr. Benning failed to make any identification. However, Mr. Benning, prior to the showup, did identify the car in custody as the same one he had observed the day of the robbery, while Mrs. Hill subsequently identified the defendant at the preliminary examination and then proceeded to make an in-court identification at trial. 3
On September 14, 1967 (the morning following the unsuccessful lineup identifications), defendant was released from custody though his car was retained by the police. Subsequently, Mrs. Stefanski identified the defendant from а group of five or six photographs shown to her by the police without defendant’s counsel being present. 4 Responding to a message left at his home by police, defendant voluntarily returned to the police station on September 18, 1967, to get his car. He was then held at the station and placed in a lineup where he was identi *767 fied by Mrs. Stefanski, and rearrested. Defendant was represented by counsel at this lineup. Mrs. Stеfanski subsequently made an in-eourt identification of defendant.
Three issues are raised on appeal, only one of which merits discussion. Defendant questions, for the first time on appeal (no objection being made before or during trial), the propriety of the pretrial photographic identification; specifically defendant’s failure to be represented by counsel during said proceeding. At the outset it must bе noted that counsel’s failure to object at trial to a pretrial identification procedure does not preclude appellate review of an alleged violation of a constitutional right.
People
v
Schumacher,
“The constitutional right of the defendant to the presence of counsel at all critical stages of the pretrial proceedings includes a right to counsel at the ‘identification parade’ or lineup and at photographic identification.” 5
In
People
v
Rowell,
“The photographic identification stage is as critical as the lineup stage, perhaps more so. The danger of misidentification at the photographic identification stage is as great, perhaps greater. Just
*768
as the facts and circumstances of a lineup identification cаnnot be readily reconstructed at trial
(United States
v
Wade,
Again, this Court in a footnote to
People
v
Robert Thomas,
In light of the preceding authority, we hold that an accused being held in custody is entitled to be represented by counsel at any photographic identification proceeding. However, when the accused is not in custody a different situatiоn is presented. The above-cited decisions, which have afforded a defendant the right to counsel at such a proceeding, have limited this right to situations where the accused is in custody at the time. There is gоod reason for the distinction. Initial identification by photograph has been widely and effectively used in law enforcement. The display of photographs has proven to be a valuable tool in apprehending offenders while at the same time “sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of pho
*769
tographs”.
Simmons
v
United States,
However, just as our Court has recognized situations under the concept of “custodial interrogations” when an аccused is entitled to his
Miranda
warnings though not technically under arrest, likewise, we cannot exclude the possibility that under unusual circumstances a suspect may have a right to counsel during a pretrial photographic identification though at the time he is not in custody. In
People
v
Adams,
“A clue to the dividing line may be furnished by the Court’s repeated use of the term ‘accused’ and its reference in Wade,388 US at p 225 ;87 S Ct 1926 ;18 L Ed 2d 1149 , to Escobedo v Illinois,378 US 478 ;84 S Ct 1758 ;12 L Ed 2d 977 (1964). We have particularly in mind the passage in that opinion, 378 US at рp 485-486;84 S Ct at p 1762 ;12 L Ed 2d 983 :
“‘[T]he investigation had ceased to be a general investigation of “an unsolved crime” * * * .’ ”
Turning to the photographic display in the present case, we are of the opinion that this was no longer *770 an in-the-field identification. Its purpose was to build a case against the defendant by eliciting identification evidence, not to extinguish a case against an innocent bystander. The police had already arrеsted the defendant. He was already provided with counsel at the lineups which took place on September 13th. Though at the time of the photographic display he was not in custody, his car had been rеtained. The photographic identification took place shortly after the defendant was released. Though defendant was set free, the police apparently still felt he was their man. We cannot allow the defendant to be stripped of his right to counsel during the photographic display by the mere fact that he had been released immediately prior to it. For these reasons we feel cоnstrained to hold that in this particular situation defendant was entitled to be represented by counsel at the photographic identification even though he was not in custody at the time.
Although defense counsеl did not ask for an evidentiary hearing on the question of whether the lineup and in-court identification by Mrs. 'Stefanski was tainted by the alleged illegal photographic identification, we are satisfied that defendant is entitled to such a separate hearing. 7 If the trial court determines that said lineup was tainted but the in-court identification was of independent origin, defendant’s conviction should stand affirmed. If he finds to the contrary, thеn a new trial is in order free of all evidence of said tainted proceedings.
Defendant’s other allegations of error have been considered and from this record, we determine there is no reversiblе error on the points raised.
Remanded for proceedings consistent herewith.
Notes
The license number that was given to the police by the witness turned out to be two digits off the actual license number of defendant’s automobile.
Mrs. Stefanski did not participate in attеmpting to identify the defendant in a lineup on this date.
At trial, Mrs. Hill explained her initially erroneous identification thus: “Because they all looked the same to me”. She went on to indicate that there was no question that defendant was the man.
There is conflicting testimony as to how long after defendant’s release the pretrial photographic identification took place. One officer testified it occurred on September 14th, while another indicated it was on the 14th, 15th or 16th. Mrs. Stefanski at the preliminary examination indicated that it occurred on September 18th just before she was taken to identify the defendant at a lineup. Hоwever, at trial she stated she could not recall when the photographs were shown her.
Likewise, there is conflicting testimony as to where she observed the photographs. One officer testified that he had gone out to the finance company to conduct the identification. Mrs. Stefanski at the preliminary examination indicated it took place at the police station, but was unable at trial to reсall its location.
Citing as authority
People
v
Adams,
It must be noted that in the
per ewriam
opinion of
People
v
Wilkins,
See
People
v
Robert Thomas,