United States v. Larry E. Evans
438 F.2d 162
D.C. Cir.
1971
Check Treatment

*1 gave explanation find- no of this VI. aminer ing this case in the circumstances closing we reconsider required do so. we feel he was adopt Board’s failure state whether Appeals opinions as ed the Examiners’ “available To considered be its un own. We believe this failure adds actively must an for work” individual necessarily to the in these confusion (Woodward Lothrop, employment & seek cases; considering complicated tes Unemploy District Columbia Inc. v. hearings, timony given at some of U.S.App. Bd., Compensation ment possible one it is that the Board based (1968)), F.2d D.C. grounds of these more decisions job unreasonably his restrict must other than those motivated the which generally A.L.R.2d search. See Appeals opin Examiners. In a recent (1952). a substantial feel there is We ion of the District of Columbia Court presented to whether here as Appeals, the court that recommended Dorsey her search. so restricted Mrs. specifically Board state Appeals decision Examiner’s an There is adopted has decision.9 Examiner’s holding indi jurisdiction that an in this agree completely We recom with this making job search an active vidual was mendation and call it to at the Board’s though his efforts he concentrated even tention. ap only employer, making fewa on one proceed- App.Ex.Dec.No. proaches Reversed and to others. remanded for ings opinion. Unempl.Ins.Rep. consistent with this 2 CCH ¶ 1956). (October how In that

ever, explained that the Examiner jobs claim few

were for which very qualified, made ant that job he

strenuous efforts to obtain sought, of obtain and that chances (Id. good. at job were UNITED STATES America 12,508). that concluded The Examiner “placed restrictions no claimant Larry EVANS, Appellant. E. availability” thereby im (Id.), on his No. 23046. plying inher restrictions is no ent Here there market.' Appeals, States Court of any relied indication the factors District Columbia Circuit. present.8 upon in earlier case were Argued April 23,1970. suggest do not mean Decided Jan. 1971. apply must same test both Board however, feel, it is do cases. We Rehearing Petition for Denied forth set Feb. incumbent board 1971. why they explanation found as to job to con her limited search sufficient work, active for

stitute an search they may

remand so so. do quires Nursery Jessup, registered Woodridge claimants for School employment (D.C.App.1970) A.2d 199 at 202 n. 16 work at office avail- Jessup applying the court was able for work. 46-309 § D.C.Code Pro- Columbia Administrative District seg. Act, et There is an at cedure D.C.Code 1-1501 § indication that least portions present. hearing (1970 Supp.), supersedes At the So- ciety’s representative suggested Unemployment Compensation Act. at question government agen- been the time would have Their recommendation particularly poor places Unemployment cies were if the Com- as valid Dorsey applicable seeking employment. pensation in its Mrs. Act (Dorsey Hearing entirety. 16.) *2 Gordy, Washington, Mr. James F. D.

C., with Jr., whom Delaney, Mr. Paul H. Washington, (both appointed D. C. court) brief, appel- on was for lant. Minkoff, Atty., Mr. Richard M. De-

partment Justice, with whom Messrs. Flannery, Atty., Thomas A. and Terry, Atty., John A. Asst. U.S. brief, appellee. on the for BAZELON, Judge, Before Chief Mc- GOWAN, Judge, Circuit MAT and *, Judge, THEWS Senior District Unit ed States District District Court of Columbia. Judge:

McGOWAN, Circuit jury of Appellant convicted was dangerous burglary, assault larceny. petit His weapon, and appeal is challenge to this conviction by the trial that his pretrial fatally tainted victim was Judge, Bazelon, dissented Chief transgressed confrontation opinion. filed That is- Amendments. Fifth and Sixth explored by the District sue was hearing evidentiary before in an summoned, ulti- jury the court against mately appellant’s con- decided By reference claims. stitutional by this rec- precise shown circumstances ruling. ord, sustain a house- complaining witness Washington testi- Northeast wife day saw first fied that she occurred. alleged offenses before walking her she occasion On and, home vicinity her dog in the appear- testimony, described she day follow- On time. at that ance about again at ing, she walking the same 294(c). U.S.Code, * Section designation, pursuant to Title Sitting by intercept side, him on the other girl. After the witness little with her custody by threatening to took him into la- few minutes home a to her returned ter, stop. dog house, did not if the threat- loose appellant entered By ar- knife, physically time another her with ened dragged it, scene, Mitchell asked rived house with her about *3 room, appel- money. to take because had more The victim as searched for he the call lant back to the where the house was in testified originated. police im- gave po- followed He hour, and she about mediately descrip- in his car. behind shortly a detailed thereafter lice mind. time. She parted hastily. peared area, near testified, when she saw put Mitchell into a close an opportunities diately pant When he had the Mitchell, ly tion of About A broadcast alley left the victim on to police her home with range accompanied late nearby told her appellant founded two who was she saw recognize afternoon pursue appellant. her radio lookout was immediate- was and and was weeks soon saw building to observe attacker. to fix walking feet companion The police in a by later, so the victim of October the victim give his away. his male heard to call the companion went along on person features coming dog.1 Appellant upon unusual for the acquaintance appellant at description, She the street wire, he walking and Officer Officer out of police. imme- in her appel- third ap- de- meeting was in found when he A I A IA Mitchell’s Q A There was Q Q Q A Yes. Q You [*] What What did Do there and I Was with? ject What he told did them who had victim’s asked them asked who you you say [*] asked it Officer did did I testimony you? cruiser, recall you tell them on you say got they [*] what? three of them these walked over say had called. if this was the sub- what, Mitchell called. to them? (cid:127)* terms: Officer? as three them? chasing. if to what [*] as to this as and asked you spoke anything, standing people? follows: [*] What way he along said, ap- A He “What is this all the street towards him about? peared you I have a man in the one to in the the car. to be referred Are lady said, stopped And who called?” I radio lookout. He his car him, said, “Yes.” “Was waited for the to reach And this a burglary suspect, Mitchell, And I ran what?” didn’t when say anything, through alley. I looked Mitchell around at him. drove follows: Cruiser 654. The radio lookout was Officer “Disp: “Disp: “Set. 91: Mitchell’s car was Any 91-10-99. Scout gro house last 3rd Street jacket, grey pants A-Adam. subject Capitol. Described as Ne- tennis sist 91? A-Adam male. He’s other shoes. She’s at unit 5:34 week complainant broke into her N.E. toward designated got is now and white 9 can says a blue East as- “Dist: “Cr. 654: “Cr. 654: “Cr. % 654: [*] 10-4, Cruiser lookout? from She’s at address around you have a car meet me (unreadable). towards subject A. Did I subject Jit got here?” again? that. A St. is on 3rd. wliat was A-Adam East you copy [*] at Terrace Capitol I Would 1n N.E. go- over and to come And then he said her after defendant ar- reported. the man ? see this is rested (Emphasis supplied.) Yes, sir, A I was. understanding his Mitchell described Q you Were com- officer to while the victim was municate with time companion phone police, her with the he was arrested until the time she chasing appellant.2 therefore He identify came over to the vehicle to this com asked both victim him? standing panion, who with her when Yes, sir, A I’m sure that I was. appellant, arrived him. walk over car with II happened: This account what Well, up opened A went *4 The contentions made to the District de- the door for her to see the respect Court with propriety the sitting fendant was the in-eourt upon identification focused car, immediately and almost —she our in States, decision Russell v. United standing became was outside —she U.S.App.D.C. 77, 133 1280, 408 F.2d very nervous, upset, excited and denied, 928, cert. 1786, 395 U.S. said, “Yes, definitely and (1969).3 23 L.Ed.2d 245 that’s the man.” case we held that the return Q Now, anything you did tell her police the anof arrestee to the scene about the circumstances under the crime for identification the vic anything which he was arrested or eyewitnesses tim or other did not fall defendant, about the himself? afoul of either the Fifth Amendment’s requirement process of due or the Sixth No, sir, really A I didn’t because guarantee Amendment’s of the assist know what was all about. pointed ance Appellant of counsel. he knew was assault wanted for the in confrontation took Russell know didn’t what was. offense, a few after the minutes Q you anyone tell Did hear else her whereas in this instance the exhibition anything about the circumstances complaining to the witness under which arrested place nearly took two weeks after anything him- about the defendant alleged Thus, commission of the crimes. self? said, so the considerations moved court this to rule as it did No, A sir. here, wholly Russell are without force Q your knowledge, you and the strictures of the To Wade-Gilbert *4 trilogy fully operative.2 Stovall first officer communicate with companion States, employee 3. See v. was an also Wise United 127 U.S. App.D.C. 206, denied, 279, cert. museum two doors from the victim’s 383 F.2d 964, 1069, home, acquainted 390 19 and was the vic- U.S. 88 L.Ed.2d with S.Ct. States, (1968); 1164 Bates 132 v. was to the United tim. museum 36, U.S.App.D.C. hysterical (1968); 1104 405 F.2d victim came in a condition States, U.S.App. report upon Jackson United 134 v. assault her the time 18, 149, (1969); days 153-154 D.C. 412 F.2d of that offense. Thirteen later Miller, (No. 22,- States v. employee standing on the sidewalk 332, 1970). 23, March decided For in front of the with the victim museum see state ease accord another friend when the victim Bumpus, v. Commonwealth 354 Mass. her as- identified denied, 494, (1968), N.E.2d employee 238 343 cert. testified sailant. The museum 1034, 651, 89 21 fled, S.Ct. L.Ed.2d when went he first police and, 579 building into the to call turning phone over vic- 218, tim, Wade, again give U.S. United States went outside chase 1926, (1967); appellant. Gil- S.Ct. 18 D.Ed.2d urged Government, contrarily, 1970). 12, course, This, ber echoes relatively Douglas, the District Court the observation of Mr. Justice unique dissenting Biggers en- Tennessee, character of accidental 408, 404, 979, counter on street of the victim U.S. L.Ed. assailant, recogni- spontaneous (1968), course, 2d 1267 due “[0]f forthcoming process always tion that was is not violated when former, creat- and the that was situation fail lineup assemble but con flight suspect, the vic- duct showup.” ed a one-man it Stovall telephone police, Supreme to the call self tim’s found no due ensuing process It stressed surely radio lookout. violation what was testimony by suggestive Mitchell showups Officer the most ever neces- that he purpose not to assure held. It concluded in that instance that sarily had committed the man who special action under cir but, rather, present to be certain crime cumstances was a reason re- response street detained able particular problem was in fact lookout sponse the radio pioneer faced. And in the light, subject. said dealing process photo Viewed case its with due Government, of Russell graphic identification, the rationale Unit Simmons v. applicable, and Officer Mitchell ed having for not taken be faulted 19 L.Ed.2d 1247 the Court *5 po- by directly to person seized declined, “either our the exercise of supervisory or, less, power, lice station. a still as requirement,” matter of constitutional remarking Court, The District after pretrial photographic to ban all identifi with these it had “never seen a case cation, pressed as had to do. facts,” those facts war- concluded “Instead,” Court, said “we hold that general “exception ranted an each case must considered on its be own rule,” pre- of ruled the fact facts;” premise and from that could introduced trial identification Court evolved a which it char standard government, by well evidence as into acterized as one “accords with our by made as an in-eourt identification resolution of a issue” similar in Stovall. companion. her the victim and both things consequence, done all these decision, In our recent Green which trial.5 at the by also involved an arrest made reason rape recognition aof chance of victim’s recently rec We have occasion “ days her after attacker on the street ten unques [Although ognize offense, that Fifth remarked present tionably highly suggestive a process not breached Amendment due single identi suspect for to a witness single presentation a fication, some circum nevertheless suspect recollection “to witness whose justified.” procedure may stances the fresh,” exceedingly offense is still Green, U.S.App. United 141 States v. require- Amendment’s nor the Sixth (decided 136, D.C. 436 F.2d 290 Novem- might prove This record 263, be. California, lation bert v. strong especially likelihood on (1967); Stovall 18 L.Ed.2d 1178 source, independent victim since Denno, of an 388 U.S. to her observation both as testified L.Ed.2d 1199 attacked, before twice Although place after our this trial took itself, lasted during which attack Tiano decision Clemons en press- prosecution, The one hour. U.S.App.D.C. 27, F.2d finding, independent source an for denied, (1968), cert. limiting its evidence and further 22 L.Ed.2d 567 identification, foreclosed to an in-eourt itself of our court not avail the trial did promising basis a most itself judicial suggestion adminis that efficient worst, or, at unexceptionable affirmance by the furthered court’s tration would be always finding on supplementary for a a remand source, ruling independent independent source. alleged its decision on the vio- whatever start, however, “the in- Russell. violated where with a ment of counsel * * * days speedy chance encounter on the street 13 terest justifies arrange sponta- after a formal the offense. The the failure victim ” * * * neously recognition lineup founda- These are the asserts the fact of companion, Russell doctrine and the tions which our flees. ap- largely hurriedly reports their The victim what she rests. po- police, positeness has seen to to the action taken and the chase be- gins metropolitan city. case in a under circumstances lice The radio is, places policeman similar lookout each us as we said before vi- cinity duty Green, under difficult one.” detain situation in “a and inves- tigate anyone who resembles broad- point It is relevant to remind at description. cast Officer Mitchell hears process, all, that due remains lookout, quickly figure spots a matter action which bottom of official appears the street who to fit the radioed patently principle jus- “offends some description, custody and takes him into tice and con- so rooted traditions when he flees. people ranked science of our to be as Officer Mitchell’s as to his Similarly, respects fundamental.”7 purpose taking appellant recog- guarantee the counsel the Sixth nition scene rather than to the Amendment, Supreme treat- Court’s appears station credible, to be and no ment matter the 1967 Wade one, either here, in the trial court or has unmistakably preoccupa- trial reveals suggested that it was not. He said that dangers po- tion with the inherent in a nothing he knew about the crime for practice lice rule which had been the was wanted. Accord- exception. rather than the ingly, not, been, it was nor could it have present purpose record before us does link His it. pattern litigated pretrial job, it, usual immediate as he conceived was mainly pattern simply identifications. That picked up to be sure that *6 pretrial woven of subject confrontations that oc- the man who of the ra- (1) itself, cur well after the crime person dio lookout. initi- Since surroundings in police official when the ated that lookout was a short distance have had the under away, arrest for it seemed reasonable to him to ask time, (2) or at the scene of the of- appellant her then and there was the police captured fense when the have man about whom she had tele- suspect shortly crime, phoned police. in problem Snyder Massachusetts, Our formulation of the in v. Green 291 U.S. 330, 332, was in these terms: 54 S.Ct. L.Ed. might argued (1934) (overruled grounds, It on con- other Mal similar loy Hogan, siderations obtain in this 378 U.S. 84 S.Ct. strong (1963)). Supreme interest 12 L.Ed.2d formulations, ranging identification to determine Court’s whether various police officers have from arrested conduct “shocks man con by science,” California, who was seen on the street the vic- Rochin hand, 165, 172, tim. On other L.Ed. 183 argued important (1951), impinges upon to that which rights “implicit concept the officers have arrested the in the of ordered offender, they liberty,” Connecticut, not whether have Palko v. recently 319, 325, arrested the 149, 152, seen on the 82 L.Ed. 288 street; suggestive appear contemplate therefore con- all ascer gradations frontation cannot be held to confirm tainable between that official might does, the street identification when it action which and that which does not, taint the witness’s recollection of the exceed civilized The hazards limits. using metaphor actual offense. of a line fixed are, lyrically The state of however, the record in Gi-een was of demarcation require Frankfurter, X, not such Field, as to a resolution of the illuminated * * Concurring *, matter. 71 Harv.L.Rev. 77 meeting was us, And this case the first such too. It seems reasonable recognition in the spontaneous aof no trace record find in this we meeting unexpected Had on the street. purpose circumvent deliberate good flight appellant his made and Sixth the Fifth commands eventually arrest- occasion and defined have been as those Amendments context, pretrial could ed in another certainly victim Supreme in the by recognition included do we Neither identification context. thereby testimony, any in her identification totality un- record of this in the see acceptable adding weight. All that Officer degree probability that Of- its do, did, sought rise, gave in the Mitchell Mitchell’s action ficer formulation, assurance that he seek reasonable Supreme Simmons Court’s report not, response ir- to the victim’s very likelihood “to a substantial wrong encounter, picked up tes- reparable misidentification.” any man.8 timony simply lend does not itself

ponderable apprehension that victim virtues of In Russell we stressed the looking appel- would, this case a crime victim of re- pursuant Mitchell’s lant to Officer fresh, and, while the recollection is to a image quest, confirm arresting degree, lesser concern for not encoun- street formed of wrong The former considera- man. Rather, the ter a before. few moments tion, special of this circumstances eloquently speaks to the effect evidence record, particularly strikes us as firmly image in her etched that that relevant. When there is a chance en- spent in con- close mind the hour she recogni- spontaneous provoking counter a ma- he was tact with when tion in- of the credible character here con- rauder her home. What essentially volved, problem is not Mitchell had firmed was that Officer of fresh recollection. The second consid- response to the ra- blundered his testimony, appears, eration dio lookout. Mitch- have been much Officer and, think, properly and true, ell’s mind undoubtedly understandably important pub- urges us, so. An Mitchell that Officer comprehended was, shown, legally empow- lic interest within on the facts second foundation distinct appellant directly ered to have taken indignity the inconvenience and station and to have booked arrestee, specific suffered relates crime innocent him there for whatever to the effective re- utilization of the officer then have found would *7 If the en- sources. Officer Mitchell had to connected. That would have wrong man, it was the pretrial to essential under abled next confrontation the shape lineup, circumstances that he to all return search- take the of formal with vicinity right patently characterize one as that values promptly possible. But, tricky proceeding. as It that of manner busi- record, to special ness effectuate radio of that lookouts in circumstances this city been, afternoon, and, area on a often the even would not have as so late though correspondence appellant’s only the vic- of encounter between description appearance to suspect in interim tim and the be- lookout may arguably trial. have afforded Officer tween the offense plicit showing wonder, why pros- indeed, mistake had been no 8. One thought important enlarge in made to arrest man who was ecution subject testimony beyond going of the radio lookout. The its direct ease would, course, recognition appellant of free defense have been the victim’s of bring to this in con- confrontation cross- street arrest and his examination, perils doing weight sequence so but of of thereof. appear are obvious. not Government’s case would materially an ex- increased have worry,9 BAZELON, (dissenting): Judge Mitchell with little cause Chief nothing about we see unreasonable agree am unable the court precautions to take extra he decided admitting testimony of the scout against per- possible not are error. We car identification constitutional discharge duty, of his as suaded that his error. facts he saw it under the exact before us, palpably the con- took him outside fines the Constitution. The heart of the court’s lies decision would, think, re- be delusive to its conclusion Mitchell’s that Officer gard this conviction in this our affirmance conduct case was reasonable: sweeping extension as wholesale nothing He said that knew he about thereby opening up wholesale the crime for which possibilities showups from remote Accordingly, not, wanted. it was nor point what offense of time.10 Given been, purpose could have link respect record shows with job, to it. His immediate of this victim chance street encounter it, simply he conceived sure to be appellant, and the circumstances picked up that he had the man who Mitchell entered into which Officer subject was the of the radio lookout.1 picture, we do not consider No claim here made really do with Russell has much to Officer Mitchell made an honest mistake way, this result we Put another reach. thought the situation no sup- would, judgment, record in our Russell; different does the court ported had affirmance even Russell argue that he believed he was re- gone way. the other turning to the scene of the Affirmed. crime minutes its commission.2 exceptions contemplated 9. Officer Mitchell’s was that The 60-minute rule to this many people there were the block are where either the sus- pect appellant, where he first saw or the victim has been “there admitted hospital response in a were some.” In as to critical condition consequence “anyone crime. else general area that matched the de- scription” lookout, supra. 1. P. contained the radio replied negative. lie said elapsed justify ten minutes at outside be- The record does not a conclusion sight ajjpellant thought tween his first the that Officer Mitchell he was in viewing situation, himof a Russell and if the court had rely possibility, the victim. wished on such a would have had to remand the case for regard, findings. note in this without com- further clearly hopes opinion, ment or intimation of Government currently operating apparently suggesting that such an honest mis- self-imposed Mitchell, under a limitation in take had as its line time been made Officer suspects questioning the return to the scene of at the identifi- *8 hearing the crime for cation identification. Memoran- shows: Q (Series 1970) Now, dum Order 16 of No. was a radio run that Metropolitan Department, being Police said he was chased someone dated other May 15, 1970, provides, among assault, from the of an that scene correct, things, that sir? say [Officer Mitchell] A It didn’t suspect being “If a min- he was chased from the scene is arrested within 60 alleged assault; being utes of an area of an was chased an offense and within he subject proximate reasonably and he was wanted for as- to crime, scene of the shall be sault. he returned offense, remarking It police that the initial the scene of the or the is also worth eyewitnesses dispatch, supra, transported p. 1 shall be 164 n. stated arrest, (inaccurately) of for identifica- that offense took scene week,” Mitchell, suspect.” tion of the “last and Officer 170 recognition therefore, ease, turn on a here should sion are faced We Supreme by the laid down that the rules knew police officer who awith Wade, rule, an examination who Court but Russell not within was policies underlie principles suspect returned nevertheless judgment rules, whether and on a show- those a one-man complaining witness policies princples lack suffi- context, those think up. Given at hand application to the situation identify cient

wrong the reasonableness mechanically point in is no so that there the essen- conduct as officer’s pro- The court applying the rules here. in this case. tial issue in that fashion ceeded absolutely to Officer clear It was me, appli- To do so in this case. should in fact arrested Mitchell that he had con- leads cation of that method right is, whom man—that find constitutional must clusion we complaining spotted a few witness error. to re- his desire Hence minutes before. identification turn to the scene II Whether for immediate confirmation. complainant had the man held we In Russell United States later be- on the street would seen require exclu- does not that Wade necessary step jury question, a come identifica- on-the-scene sion the conclusion towards suspect. freshly apprehended tions of a complain- man who assaulted was the exception later extended This in this ant light, weeks before. Viewed two similar identifications where cover does look the situation witness is taken to the scene much like Russell: recognized permitting arrest.5 being the crime to the scene of returned fly procedures such seemed commission, immediately after its Supreme manifest face Court’s being of an to the scene returned any pretrial confrontation.6 concern with immediately identification, on-the-street then, question, after it occurred. said: exception to the we carve out

whether compelled confrontation [T]he excep- parallel the Russell Wade rule the accused and the State between say police conduct To tion. victim or to elicit witnesses to a crime peculiarly not answer here was reasonable does evidence is dangers riddled with innumerable begs ques- question; it either might only part deci- tion of it. Our variable factors serious- or states succeeding requires clearly (which cases heard an address he asked retreated) any pretrial to have and who heard and scrutinize confrontation description the sus- remembered the the accused to determine whether presence pect, suggested never said or even necessary of his counsel particular part of he failed to hear that right preserve to a basic the defendant’s dispatch. right mean- fair as affected trial ingfully to the witnesses cross-examine U.S.App.D.C. 77, 408 F.2d 1280. against effective assist- him and to have denied, S.Ct. cert. itself. of counsel at the trial ance (1969). 23 L.Ed.2d poten- analyze calls us to prejudice to defendant’s tial substantial Wade, particular rights 4. United States v. con- inheres ability L.Ed.2d 1149 of counsel frontation and the help prejudice.” avoid *9 Miller, 22,332 (D. 5. United States v. No. 23, 1970). C.Cir., March 227, Wade, at U.S. States Alabama, original]. [emphasis Powell principle at “[T]he 158, L.Ed.

J7J though derogate justification ly, crucially, specific Even a fair even exception may apply for the Russell trial.7 case, may excessively this it seem say, dangers, par- are These needless apply technical to Wade to a scout car single suspect ticularly is acute when a sponta- identification which a follows custody. viewed neous street; identification on the dangers in the found a balance to these spontaneous may identification alone greater accuracy identifications fresh line-up “taint” the witness’s later or in- of the witnessed made within minutes example, court For identification. crime. may identify witness the defendant on and, getting the street a close look at may clearly A in his “mind’s man see him, particular observe features or char- figure eye” which he is a face or a acteristics that she had not noticed when adequately put hard to describe may the crime was committed. She then Though image an “un- words. rely upon picks these features when she may occasionally forgettable lin- face” line-up the defendant out of a or when ger any translation into without she identifies the defendant in court. words, photographic of- recall is most intervening In such a scout ephemeral. in the flash of ten Vivid sugges- car identification —however rapidly it fades direct observation contributing tive—would not be attempt conscious And the time. later identification. impression separate the ensemble features, particular however, say, sponta- into verbalized We cannot recollection, preserve order to generally neous identifications will taint original may well distort the later identifications in the manner de- accurate image so that is verbalized scribed and that the scout car identifica- remembered characteristics which tion will have no effect. In the first place, got the man. may not the face or witness have picked close look at the man she Balancing doubts left all the street, street. If he across perception mysteries of human ease, as he inwas this or if his features recognition, appears that partially hat, concealed like in circumstances confrontations may witness decided that is anything “if will those of this case highly likely assailant, he is promote assuring fairness, reliabil- get still want to a closer look before she * * ity *.”8 absolutely precisely certain. may prejudicial, “closer look” which Clearly justification excep- for an given suggestive nature scout tion to Wade is absent case. identifications. where the Even witness passed Two weeks had crime. since the positive thinks she has been in her iden- ample This is time for witness’s men- street, tification image on the scout car con- tal of the criminal to fade or to may allay frontation doubts imperceptibly shift as it is reflected fully she is not upon. conscious. Where spontaneous And while a identifi- witness has called the to come and may cation at a later date be evidence suspects, arrest the man fear of em- pre- a vivid recollection has been subtly encourage served, barrassment alone guarantee ob- identify they apprehend her to viously present in Russell that whatever and then subsequent him in image remember vivid preserved in the mind during identifications. the “few moments” between sighting image arrest is fact the sum, scout car confrontations after of the criminal. spontaneous identifications on the street 1933, quoted 7. Id. at at U.S.App.D.C. 8. 133 at 408 F.2d at States, supra, Russell App.D.C. [emphasis added; v. United 133 U.S. footnote omit- 408 F.2d at 1282. ted]. *10 posedly reliability man should have some generally innocent assure do not exception to decision to return to degree voice complaining another such a “Protecting justified. rule is witness. the Wade giving choice at them no innocent” point, to tempting, at this is ring very all has a hollow to me. argument swayed re- one like in cases this turn to the scene Second, it me innocent in- unnecessary of detentions will reduce protected by adequately the re men are matter, it suspects. initial As an nocent probable quirement police have Russell, emphasized that must be they suspect. In arrest a cause before though “expeditious innocent release of example, appellant ar this for suspects” a factor mentioned time he rested of the' within minutes decision,9 a fac- it was considered sighted and described to been only determined it had tor been police perpetrator of a as the violent of the confronta- that the circumstances crime; spotted by officer and he was promote anything question “if tions in initial within two blocks arrested assuring reliability.” fairness, by For wearing precise sighting, clothes which already given, I can- the reasons I have given complain ly description fit the surrounding say that circumstances ant; spotted in the direc first in this to the one confrontations similar complainant her com tion in reliability, I find nor do case assure will fled, panion actions and his said any opinion of the such conclusion suspi upon seeing police car were therefore, no court.11 lends slightest doubt There is not the cious. support invocation to the court’s probable cause to arrest there was “protecting the innocent.” therefore, suspect, probable this apart applicability holding Even from the for him reasonable cause a argument Russell, however, length line-up.12 re- of time to conduct ducing unnecessary inno- fact, presentation detention innocent First, very argument suspects particular I be- cent is weak. case in this man, easy neglect he as lieve that an innocent it and un shows how tois dangers princi necessarily compromise of misidentifica- aware of the the Wade lawyers are, judges ample probable ple. tion as would Not was there necessary generally prefer suspect, to have the there to arrest but cause fairly line- time taken for a conducted no indication that other men seen logic up. protecting given description the innocent fit area also sup- position Furthermore, complainant.13 that the time forces might Id. 12. It lack of an ade- be noted that quate description furnish the p. 171, supra. 10. See probable need to arrest cause page 168, hamstring entirely. does ask wheth On court Stewart v. them gave “to U.S.App.D.C. 274, er Officer Mitchell’s action rise irreparable (1969), police substantial likelihood of took F.2d 1110 officers sure, complainant misidentification.” To be with them question neighborhood in the affirma were answered for an ear and cruised tive, likely spotting is not to seem conduct three hour and a half before correctly, descriptions. complainant’s Quite reasonable. the court an men who fit question negative. complainant swers the been able to fur- If had not however, difficulty, description, is that still nish a verbal challenge permissible relevant to a the iden to take neighbor- Den tification as a violation of Stovall v. no, a search L.Ed. hood. 2d is not relevant upon Wade, challenge inmen the area where 13. The to a based absence other supports fitting description proper question further the cir is whether probable finding for the arrest cause to reliabili cumstances were so conducive perfectly possible appellant. ty But of identification that no rea might description complainant’s apply son to the Wade rule.

173 afternoon, hardly 250, 1726, 5:40 395 89 23 L.Ed.2d difficulty pre (1969), exceedingly at which the 284 it will an hour rare paring line-up, a find if error con- harmless when that error guilt of testimony doubts about the cerns the substantial arrested, they sole crime, the man and victim witness of a extraordinary.14 where no other evidence links circumstances, to that crime. In a such identifi- I the scout conclude that claim of harmless error would not ordi- cation this case did not occur narily consideration; deserve serious “substan- kind of situation for which peculiar do facts of this case countervailing policy tial considerations” closely possibili- force me to examine permit general exception another to the ty of error. harmless requirement Wade I would of counsel.15 question, hold that error to was constitutional critical Ias understand Chapman Harrington, allow the to introduce evi- Government is not wheth beyond of that er it dence identification into its case. is clear a reasonable doubt jury ap would have convicted pellant illegally if it had not heard the Ill evidence, though admitted even members opinion this court —the author of this Finding a Wade not au- violation does occasionally spoken included —have if tomatically require the con- reversal of Instead, it were.16 I think it is clear why state viction. remains for me to that the appel test must be whether the not I do think that admission beyond late court is convinced a reason improper harm- evidence this case illegally able doubt admitted standards less error. Given the strict evidence did contribute ver to the California, Chapman 386 laid down in v. dict, alternatively, sway or U.S, did not 18, 824, 705 L.Ed.2d 17 jury17 short, members what California, Harrington v. 22,- g., Miller, E. 16. States v. No. United comparatively detailed, two 23, J.) (March 1970) (Bazelon, 332 C. vicinity men found fit immediate slip op. imagine 9: a at “We cannot description. such a case Goldberg’s different if result probable well be arrest cause to barred”; Taylor had been United put line-up, both men and them in a U.S.App.D.C. 248-249, States, 246, though 134 it is even clear them 1142, ; (1969) F.2d 1144-1145 “In 414 must be innocent. Ghapman applying we must look to all evidence, prosecution defense States, Stewart v. United U.S. Cf. bring judgment alike, and our App.D.C. 274, (1969) to bear 418 F.2d 1110 (confrontation of whether is clear m.) ; at 4:00 Russell v. a. beyond States, m.). supra to us reasonable doubt (5:00 United a. guilty would verdict have resulted even jury supra, States, never heard the chal 15. See Russell v. United testimony.” lenged sugges U.S.App.D.C. make no at 408 F.2d at quoting tion these in Wade, at all decisions were United States v. correct, improper even that test at S.Ct. 1926. applied. appropriate was in fact do I think it Nor to affirm particular exception case to the See, g., Spontaneous e. Hamilton v. United Wade rule. identifications (D.C. length U.S.App.D.C. victims substantial of time 433 F.2d 526 1970) Cir., July 31, “[W]e 531: crimes have been committed beyond extraordinary. g., a reasonable doubt be find See e. weight overwhelming Green, U.S.App.D.C. cause of the States evidence, (1970) admission Klein’s out-of- F.2d discussed jury’s opinion, supra. important, did not court statements affect court’s More ** verdict fear that ad hoe of ex determinations ceptions per se rule Wade would substantially. tend to undercut soon illegal cording impact speculation is critical how the comes jury, weight Appellate judges escape on the not the cannot evidence out. impressions. they may such untainted evidence. But *12 make them or sole criteria for reversal from I essen- draw these conclusions judgments Those are affirmance. reading of tially no than careful more exclusively always given jury, for the Chapman Harrington. opin- These legal- necessary minimum evidence point brief, in no ions so there is ly the conviction sufficient sustain extensively quoting from them here. * * * unaffected the error. Chapman ex- that Court in clear plicitly away turned from what Turning hand, I now to case at “overwhelming test” evidence called the think, initially, that in the absence the test set and associated itself with testimony about the car identifica- scout Connecticut, Fahy out in tion, jurors some would have felt com- (1963): L.Ed.2d 171 pelled closely to look at much more possibili- a reasonable “whether there is immediately following complain- events might ty complained of evidence alley sighting ant’s the man to the conviction.”18 contributed juror might se- across street. A dissenting Brennan, in Har- Mr. Justice riously ini- doubt the of that correctness majority rington, of over- accused the tial identification but still wonder Chapman ruling adopting the over- right arrested whelming test; whatever evidence but might in mind man. What stand out his majority ambiguity opinion exists appellant, is that when seen Of- first agree Mitchell, permit ficer this court seems have been walk- does ing along opposite the street its end of said at the The Court him. direction from that would which Chap- opinion: depart from do not “We going expect a man to be if he were man-, inference. nor do dilute it fleeing place complain- from the where reaffirm it.” him, ant first the direction the two tests The difference between complainant to have claims small, scopes inquiry over- only seen run. Not but lap. weight evi- of the untainted (de- only still two or blocks three any certainly relevant dence in case is pending upon postulates how one his determining impact possible on the path) sighting. from the Since illegally jury evi- admitted of certain complainant companion both and her Nevertheless, be cases there will dence. agree off, ran that the man the time be- guilt where the other evidence sighting initial tween her and the illegal overwhelming, evi- where the important dispatch a deter- becomes persuasive particularly dence was likely mination whether Chapman require Harrington and kind. fleeing An man still be so close. would might recall that these reversed. We appar- implicit that seems contradiction Rutledge, discuss- words Justice complain- testimony of ent between rule error the federal harmless companion ant to what street and her Kotteakos v. United fleeing com- turned down 1239, 1247, L. 750, 763-764, recognize plicates I further. matter (1946): Ed. 1557 appel- according Mitchell to Officer ran he saw the lant when appellate func- court’s [I]t appellant’s explanation own guilt innocence. tion determine * * * implausible. time is actions at speculate it to Nor is Nevertheless, given puzzling fea- ac- probable decide reconviction 86-87, at 230. 18. 375 U.S. chase, of the

tures I feel there is jurors, across street. These swayed too, possibility might real that what allayed have had their doubts jury this issue members scout car identification. complainant’s prompt say beyond Since cannot a reason- right arrested. admitting able doubt that the error addition, pos- I cannot rule about the scout car identifica- jury sibility verdict, tion did some members not contribute to the qualms spontaneous iden- about the would reverse these convictions and re- tification made late the afternoon mand for a new trial.