United States v. Ronald S. Greene, 429 F.2d 193

United States v. Ronald S. Greene

429 F.2d 193

D.C. Cir.

1970

Check Treatment

*1 designed carry clearly February out tions set forth order of statutory protection 1970 does not extend duties. persons sponsoring engaged or in ac- regulation, lim- conclude that conforming tivities not notice system fixed, permit and de- given in such form. questioned permits nial of the four evi- power dence a reasonable exercise of the Judge MacKINNON would imposed particular and officials grant appellees’ motion. reasonableness the adminis- fixing lim- trative the 100-500 action it is fact that it is an buttressed regu- power

exercise of the minimal late and that violations have occurred no rights appellants’ or are threatened UNITED STATES of America assembly speech, petition. or free accordingly would affirm the District GREENE, Appellant. Ronald S. Court. No. 22923.

PER CURIAM. Appeals, United States Court of ORDER District of Columbia Circuit. Having appellees’ Argued motion considered Jan. of this reconsideration court’s order April Decided February 10, 1970, is- and permitting

suance of a “further order” Regulations

enforcement of Department lite, pendente of the Interior stay accompanying request for a following days mandate sеven motion, having

action such con- appellants’

sidered motion for the man- forthwith; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ap- date to issue and there

pearing adequate timely why no reason occur,

issuance the mandate should not

or that there should be a reversion permit system pendente lite, it is

Ordered the Court that afore- said motions are denied. The how- being

ever, of the view that the nature system clarified, of the nоtice should be

directs that February the order of (1) provide be modified that the District Court is authored and directed implement system pro- the notice viding form, suggested may Government, giving for the prospective notice of demonstrations sponsors

which the shall furnish reliable persons par- estimates of the number ticipating, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the estimated duration of demonstration, including pro- the times

posed conclusion, beginning for its activity the character of the in con- templation, (2) provide further preliminary injunctive relief as *2 key

ployees, Harpеr, witness was the making in- appellant, an both appellant well of as court identification jury relating exami- as to the on direct pretrial nation the circumstances of ap- he made of identification which had was, however, prior pellant. a There evidеnce, suppress which' motion to this hearing subject evidentiary of an was the jury. that presence At out of the of the hearing, Harper that he had testified by appel- shop been confronted gun, a forced to lant armed with go floor on the into a back room аnd lie employees, with Mrs. Jackson two other Hyattsville, Dukes, Jr., Mr. Charles A. days later, Prioleau. A few Mrs. court), ap- (appointed by this Md. Harper photographs of was shown books pellant. Metropolitan by Sergeant of the Harper’s he Stein, Police. U. S. Mr. Ellsworth John Asst. picked picture Atty., out a whom Messrs. Thomas A. thought Terry, robber but he that of Flannery, Atty., be U. S. and John A. sure; expressed he a wish brief, Atty., couldn’t on the Asst. U. S. were photograph in the of the appellee. flesh.1 WRIGHT, Before McGOWAN and

ROBB, Judges. Sergeant Wesley he testified photographs three of showed all Judge: McGOWAN, Circuit employees; “liked” appeal jury This from a conviction photograph couldn’t robbery dangerous assault with sure; the two said that and that women (22 weapon 2901, 502) pre- D.C.Code §§ picture taller “the had resemblance deriving from sents issues up.” A few the two that held them one of days later, Wesley char issued he what that, by victims. We find reference Harper and acterized “summonses” as rulings earlier intro- of this appellant. each notified document duction of of this identification evidence appear at States аddressee to the United direct Government as Attorney’s in the General Ses Office ease necessitates reversal. sions on Satur Courthouse A.M. 9:00 I day, 16. The form used December margin.2 this is set forth in the dry cleaning robbery shop of a approach Wesley said that he used this December the em- 1967. One Harper’s testimony on score actual this follows: was as IN THE DISTRICT OF COLUMBIA picked Yes, I the man this out — COURT OF GENERAL picked out, picture I was almost I BRANCH SESSIONS say positive. for sure. Like couldn’t Wesley, Mr. “I would like to told STATES UNITED ATTORNEY’S By person.” picture, it see this FLOOR, 1st 5th & OFFICE gun person like who looked STS., E N.W. me. _ To hearing, prose- the course this hereby appear in- are notified to You represented did not intend cution below: dicated jury before the to adduce evidence Attorney’s viewing photographs Of- In the United States fice, Harper; on the First Floor of Room was adhered and that intention Court of General District of Columbia to. investigation step” unmistakably rejected by in his the trial the “next he court. did believe that and because appellant. had cause to arrest Appellant presented an alibi defense *3 jury. employees, the The two store Mrs. responded to Harper that he testified Jackson, Prioleau and each testified Mrs. knowing pre- “summons,” without they appellant not the man was had Upon cisely en- was. what robbery. seen at the time of the tering he was notified room to which go, 10 12 saw some or men to he said he II recog- immediately standing around, and parties The devoted much group a about nized in argument time in brief and be immediately went ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍three other He men. ap question fore us to of whether and told the officer over to the desk pellant was, legal contemplation, in under me seated there that “the man who presented arrest when he at himself Wesley up is here in this room.” was Attorney’s response S.U. in Office present, Harper told not was However, “summons.” since our deci did, he wait until he arrived. When Long States, sion in v. United аppellant was the. him that told App.D.C. (1969), it 424 F.2d 799 Appellant thereupon placed robber. right is clear that the Amendment Sixth under arrest. pretrial at counsel a confrontation purposes Appellant he also re- testified that does not turn automatically sponded upon said that to the summons. He existence vel legal non he told the officer at the desk that he arrest. See also Mason report States, U.S.App.D.C. United had notice to did 134 against any (1969). charge not him. He F.2d 1176 In know Mason the pretrial out, of room confrontation in went into hall issue took place waiting prior after several times while arrest but to indict It, come, therefore, ment. that Har- nullified thought that, per was in because the room first Wade involved a when indictment, custody defendant in arrived.3 after right pretrial to counsel for identi suppression At the conclusion of the purposes only fication attaches after in testimony, argument the court heard oral appeal, On the dictment. instant suppres- and thereafter ruled position right Government’s is that colloquy sion. The of court and counsel being prior does not come into to ar sides, reported transcript, for both in the Long, building Mason, rest. upon ne clarity is a model of in terms iden- gates proposition. not, does tifying speaking to the true issues. course, mean that no identification con present purposes, however, For is frontation without counsel can ever be enough to note that a Amendment Sixth following valid arrest. See Russell v. appellant’s right issue of at counsel States, U.S.App.D.C. 77, United arranged by the confrontation means of denied, F.2d 1280, cert. unmistakably “summons” was raised 23 L.Ed.2d 245 Building Sts., suрpression Sessions at 5th and E 3. The N. other witness at the W.; hearing was Mrs. Prioleau. She testified Assign- photo- witness room she was shown the book of ment Branch graphs of the District of Columbia and was asked whether she rec- ognized Court of General photograph Sessions said address: оne at_o’clock (a. m.) m.) (p. particular. She said that she could not. the_day of_, 19_, for_and depart a witness do not _ without leave. UNITED STATES ATTORNEY FOR THE DISTRICT OF COLUMBIA ruling Long, Long, respect con Due for our inAs therefore, requires Harper and that we Dis find the frontation between suppression ruling Supreme triсt place Court’s Court’s here took And, trilogy.4 the Government Wade error. since Wade-Gilbert-Stovall thus, counsel, ques right of the identification a threshold introduced evidence of the con made at the uncounselled confrontation of the fairness tion process case, weighed in the due its direct the deterrent frontation Amendment; and, as rule of the Court the iden Fifth scale Long, require tification cases commands reversal “we find its we said in equally applicable trial. new See v. United ment of counsel Clemons *4 ap 27, States, U.S.App.D.C. informal, pre-arrest of F.2d confrontation 133 408 1230, (Emphasis (en banc), denied, pellant squad 1234 cert. 394 in room.” the Long 1318, supplied). in 964, U.S. 89 S.Ct. 22 L.Ed.2d 567 characterized We (1969). Supreme in Wade Since the case the Court’s rationale Government’s up solely difficulty Har to that the attendant rested be rеconstructing per’s accurately identification, especially the exact and since eyewitnesses holdup the confronta other two circumstances of the to the man, tion, testified that the role counsel was not the useful which possible opera play process we in see no room here for can suggesting might Chapman-Harrington6 tion procedures the es in which cape valve, legally Government, quite render unas which the confrontation the properly, think, suggested to we sailable thereafter. has not warranting us as affirmance here. Long by request the involved a verbal police suspect to are not to dilemma to the We insensitive the victims Sergeant Wesley placed in police which at the was come down to the station tentatively Harper, identify- when ponderable dis- same see no time. We ing appellant photographs, tinction written from the between and the ex- pressed get person. the wish him “summons” the victim in used here to to Responsible suspect together police hardly the U. S. Attor- action at would ney’s encompass dropping in both is that Office.5 vice the matter at point because, believed, simply pur- a confrontation for identification poses object, provision probable there is no is but no was cause arrest. to Any protec- proper scope for made rational view of Sixth Amendment police investigation right counsel, surely tion of to in Wade would assume come, be so critical ad- the time had in fair and efficient fairness justice public give ministration in these both suspect, situa- tions. a chance to see if Denno, 293, linеup viewing appear 4. Stovall v. 388 87 for U.S. S.Ct. a formal 1967, ; eyewitnesses (1967) 18 L.Ed.2d 1199 Gilbert v. the crime for which California, 263, 1951, 388 U.S. S.Ct. 18 arrested crimes in 87 and of other operandi. ; (1967) volving L.Ed.2d 1178 States v. a similar modus See United Wade, 218, 1926, States, U.S.App. 87 18 388 U.S. L. United 130 S.Ct. Adams v. (1967). ; 203, 574, (1968) Ed .2d 1149 F.2d 578-579 D.C. 399 Allen, U.S.App.D.C. United States v. 133 face, supra, 2 5. The “summons” on its Note 84, ; (1969) Spriggs 408 F.2d v. 1287 designed appears an to be instrument 177, Wilson, U.S.App.D.C. F.2d 136 419 bring in, either interview or actual Allen, (1969). 759 As we stated giving witnesses availability Adams order assumes prosecution the defense. It both contemplated rights its addressee of the suggests that a ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍embraced nowhere Wade-Gilhert-Stovall. suspect confront a criminal is to pur- Harrington California, v. 395 the victim ; (1969) Compare 284 poses. L.Ed.2d so-called Adams California, arrestee, Chapman 87 S. an at the v. time order under magistrate, presentment L.Ed.2d 705 before the Ct. Headquarters appear at Police directed to improved him. could have had robbed situation for fact man who however, appellant. Long Wade-Gilbert-Stovall, Nevertheless, States, strongly U.S.App.D.C. United intimated Court has (1969), requires F.2d ordinari- opportunity should me to concur that such an lineup. ly appellant’s in the а formal reversal of con- means ordinarily are viction. lineup Formal facilities headquarters. only police So available

long as the taken law was deprivation liberty personal

no could arrest, without cause to

occur problem compel of how to was one lineup

suspect present for a himself

viewing.7 Sergeant Wesley’s solution SYSTEM, D. C. TRANSIT INC. and problem in instance is not an ac- this Washington, Maryland Virginia and ceptable But, one. said of one of as we Company, Petitioners, Coach *5 police colleagues Long, we do not v. assume wilful on his WASHINGTON METROPOLITAN AREA is, to circumvent What he Wade. needs COMMISSION, Respondent, TRANSIT legal Adams, we said in some creative Co., A. Gray B. & W. Transit - thinking рolice- of how Line, Inc., Intervenors. proceed

man should under these circum- No. 22893. need, plainly which stances. day evident on the Wade-Gilbert-Stovall Appeals, United States Court of nearly years ago, were decided has three District of Columbia Circuit. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍long recеiving time in the at- been Argued 13, Jan. 1970. thorny tention it nature of merits.8 The May 21, Decided 1970. obvious, problem surely but that is failing bring no reason thought the best upon it

to bear in the interest seeing competing inter- whether fairly can

ests reconciled.

Reversed. (concurring):

ROBB, Judge nothing suggestive in unfair or Harper’s

the admitted circumstances of

spontaneous recognition him;

as the man who nor do robbed presence

understand of counsel how the Approximately year policе is, Wade, improvisation, course, from one precisely point Adams, time we Court for the first held that made 5, supra. is not Note cause to arrest an indis- every pensable condition to conceivable police liberty. Terry 1970, Department personal 9, March restraint of On asking Ohio, 1868, v. Justice announced that was Con- gress require legislation that, federal L.Ed.2d After judicial suspects submit, Court, Mississippi, criminal under Davis compulsion, variety investigatory to a 89 S.Ct. L.Ed.2d lineups procedures, including (1969), formal threw out idea a sus- .that Department’s propos- pect judicial perhaps could, super- identification. The under very vision, appears compelled similar to be to S. al to submit himself to fingerprint Sess.), Congress, imagina- 91st 1st was in- examinations. authority judicial tive troduced on October Senator utilization areas, distinguished these difficult McClellan.