Wise v. Murphy

alternatively chal- General has also Appellee Court of of Columbia District then Pub- authority both jurisdiction, con- original has lenged Sessions Washing- District with the Commission2 currently lic Utilities Columbia, of: Commission Transit District Area Metropolitan ton gov- regulation adopt a or promulgate in the District committed offenses pub- of a passengers erning the conduct only punishment which the fine trial service. Since transportation lic * * supplied.) (Emphasis *. jurisdiction, that he lacked judge believed validity ruling of- Therefore, jurisdiction he made no when over Therefore, feel we do not regulation. District of Co- within the fense committed to rule for us appropriate is con- punishable fine it would lumbia Court, jurisdiction question on the District now. ferred “[W]hen no expressed un- upon Sessions case comes also conferred General from which question, expressly provides controlling other- the statute views on a less case rather to remand the appropriate wise. question merits of that deal with the * * No. P.U.C. Appellant alleges that Order ” Dandridge Williams, *. II, ar- adopted by title section n.6, XII, Metropolitan Washington ticle L.Ed.2d 491 Compact, was consent- which Area Transit Congress reflect- approved by instruction to reinstate ed to Reversed with ed in 1-1410. information. D.C.Code § XII, II, article 18(d) of title Section compact provides: willfully person knowingly and

Any statute, any

violating provision of this rule, requirement, or or-

any regulation, ** * shall, upon con- der thereto thereof, be fined not more than viction Jr., Petitioner, WISE, Clarence the first not more offense and $100 subsequent offense. than $500 Tim The Honorable MURPHY and The Hon- day Each of such violation shall consti- Burka, Respondents. orable Alfred separate offense. tute DOE, Petitioner, John penalty imposed by 18(d) section Hence, only. a fine 1-1415 unless Section MURPHY, Respondent. The Honorable Tim otherwise, expressly provides which not, plainly does General Sessions has Original, Nos. 4480 5456. jurisdiction current District Court Appeals. District Columbia Court of impose penal- under 11-963(a) Section 18(d). ties accordance with section Argued en bane Oct. 1970. charge over the instant Jurisdiction Decided March Superior virtue now vested of District Columbia Court Reform Procedure Act Pub.L.

Criminal Stat. (§ ll-923(a)), pass opinion

486. We on the charges filed in jurisdiction similar Superior February Court after Service Commission. Now Public C., Lefstein, Washington, D.

Norman Washing- Zwerling, Matthew with whom peti- ton, C., the petitions, D. tioners. Silbert, Atty., Dept, of Earl Justice J. Thomas whom argument,

the time of file The affidavits submitted Atty., A. offense. Flannery, U. S. A. John sub- Clarke, were furnished Jr., Asst. U. S. Government O’B. John jects and Carl and their counsel. Attys., and Frederick D. Hess S. Rauh, Attys., Dept, Justice, were on lineups, it contemplated Under opposition petitioners’ memorandum be identified, will person the clear that if law, respondents. for according law.4 dealt arrested with and also Atty., King, R. U. Warren Asst. S. identified, protective If measures respondent for in No. appearance filed an from insulating the event been ordered 5456. notice. public official future and HOOD, KEL Judge, Before Chief and in the transcript the apparent from LY, FICKLING, KERN, GALLAGHER greater far discovery of Doe case John NEBEKER, Judges, sitting and Associate required be ordinarily will magnitude en banc.* Ap- contemplated lineup. given the before As- the

pointed requested, and counsel agreed, that Attorney sistant United States NEBEKER, Judge: Associate previous statements he be furnished with the cases before These consolidated any other description victims and of the extraordinary relief petitions for court offense, he be and that witnesses to the Because of prohibition. in the nature of before permitted persons to interview importance the constitutional issue of lineups. made at All statements presented, we, en banc sponte, sua ordered view lineups will with be recorded ques constitutional consideration.1 That elim- permitting reconstruction and verbal whether, warranting tion is facts absent may al- inating possibility that counsel rape, person identified formal arrest pro- any future so a witness have to be possible perpetra photographs as from ceedings. argument At before oral required by and tor order be that, court, agreed also the United States safeguards2 to under other constitutional lineups in the District of Co- as in usual lineup in the victim. stand to be viewed lineups lumbia, of will photographs of all made, addresses names and and the cases, In both the District of Columbia possible visual kept for participants bewill sitting judge, as of Court General Sessions lineups. reconstruction magistrate,3 summons and issued a has be- requiring subjects appear addition, questioned when In him, counsel, appoint- potential future lineup fore or for the with nature of the and results, counsel, negative a time and date ment to set the event harm argument, in- acknowl- lineup. The summonses also at oral arrange lineup with- subjects and time of of the date edged formed that it could Pub.L.No.91-358, Judges Reilly Yeagley Pair, Associate Act cedure S,tat. July 473, approved were not members of the court at participate argument time of lias ceased and did Sessions Court General Superior of the Dis- or these consideration decision of exist and ju- general Columbia, cases. a court trict However, risdiction, replaced un- it. juris- (b) (3) Act, complete transfer D.C.Code 11-705 & der in, Superior (Supp. 1970). will diction to August The offense occur until Wade, 2. United States v. 388 U.S. deal, rape, petitions which these with (1967),; L.Ed.2d jurisdic- for the time within remains Denno, Stovall States District Court tion of 18 L.Ed.2d respondent as to such offense the legal capacity. judges in the same remain Co- Under Section 111 of District of Pro- note 11 lumbia Court Reform and 4.See Criminal infra. using suspected prisoners magistrate

out procedure5 cation. from the convicted together with security safe- arrest. In this alternative formal guards and agreed way devices. It also division of functions traditional nothing resulting from such need branch- between executive Thus, officially way. pro- any preserved other used es can be innovative photographed need not cedure. proceed- use with connection other conclude, (John No. 5456 we Doe) ing concerning others standing it. discussed, is in- reasons to be subjects commingled need not be particularity specificity sufficient suspected others accused or crime. known facts reflected in the sub- material for assembly total time need viewing mitted to warrant under Amend- Fourth hardly more than a few be minutes. ment standards the of intrusion con- kind short, process as antiseptic the be to templated. Because the device of court- possible. lineups, grounds of for ordered short jurisdic- We are first confronted with novel, arrest, disposition formal our will questions power of the relating tional to the permit to resubmit the Government in first is- officer, instance to magistrate spe- matter to the with more order, to jurisdiction sue such our ordering cific and basis articulated discussed, to it. review For reasons lineup. participation in the questions in favor of we resolve those require then Our decision will treatment of contemplated and our review questions in I jurisdictional of the Part prior lineup. orders those opinion and issue of the constitutional this then, Necessarily we conclude court- of relates facts case predicated on reasonable lineups ordered respecting in Part II. The facts Doe John arrest grounds short of a basis formal dis- Original No. will not be (Wise) squared can with the Fourth Amend- outlined, light disposition in cussed particu- being ment—the test whether will be to factual references further on when lar intrusion is reasonable based only. Doe” case “John legitimate en- all the known facts and law course, balance forcement interests. Of most competing interests must be of careful. Mag- The Judicial Power A. of Challenged to Issue the istrate Original (Wise), In No. 4480 Process States, reflection, facts views the on We to warrant formal

as sufficient arrest. has of this Assuming power chosen course earlier are thus told the in in the first request is jurisdiction made been to determine abandoned and question whether stance, the line for dismissal of we treat remand case any circum do, power con under up magistrate but we further has order. This we com warranting process, formal short clude that even cases issue stances to participa arrest, requiring per States should formal manding the. United lineup.6 It is to re appropriate proper deems in cases it in an otherwise mitted Rules identifi- Federal lineup or other quest this both kind clear sample. Mississippi, nisliing note See 5. Davis v. hair infra (1969), 1394, 22 L.Ed.2d text. related Curran, 24,826 (D.C. Shaykar No. finger- Cir., 1970, Necessarily would be interim filed November included unpublished January process. Missis- printing Davis v. See order dated government supra 1971), sippi, relating motion to note 5. to a compel prearrest fingerprinting and fur- authority to power Criminal Procedure7 D.C.Code inherent aid 11-981, judges D.C.Code pursuant District Colum- warrants issue § Columbia, District bia issue Court of General Sessions Morrow 11-981. § Cf. against U.S.App.D.C. warrants for offenses 13 dealing exercise 1969), District of Co- States committed 734, ( F.2d petitioners argue that limitation authority lumbia. Counsel inherent Pro- 4(a), Rule Federal Rules of Criminal of arrest records. use on official from cedure, power operates power limit emanates argued that also Act, 1651(a) issuance of summonses 28 U.S.C. warrants All Writs * * * addition, appears “it when (1964). The United Greene, 139 believe that offense cause to relies on United U.S.App.D.C. has 197 n.7 been committed and defendant * States, (Emphasis committed and Adams v. United import argument as- supplied.) The F.2d 574 U.S.App.D.C. imposes constitu that the limitation to the rule relate those cases

sumes While are of grounds of that and similar presented for issuance here tional point process. jurisdictional the nature and help purely We view do little purpose limiting appears au- rules as those both cases that court because purpose power of thority. This is neither existence of assume in purpose derivation Congress the rules8 nor the of lineup participation. No quest adoption.9 or providing authority for their even power was discussed of that example Indeed, Adams, course, revealing that the rules is example of ioned.10 in grounds preclude changes power do not substantive where use that of Warden, Penitentiary v. other sim lacking case is Md. as to law formal 1642, 18 Hayden, 387 U.S. ilar offenses. where, notwithstanding (1967), 782

L.Ed.2d scope proper- of items limitation on predi are two conclude We ly subject of search warrant under the chal issue power to upon which cates 41(b), Rule Federal Rules of Criminal First, judges based. orders lenged Procedure, appears to Supreme Court of Gen Columbia of the District of contemplate future issuance of search have of this judges like eral Sessions previously forbidden items de- warrant * * power “judicial different as “mere scribed evidence.” con to effectuate types [their] remedies of subject mat States, hand, some over jurisdiction on the The United other ceded to is judges those power of argues authority the chal- [(here to issue ter to D.C.Code pursuant lenged from summonses orders derives warrants sue They proceeding. 4(a) applicable judges shall be 7. Rule of criminal procedure, simplicity in secure the District Columbia of strued to of Gen elim- taking governed and the in eral action administration Sessions when fairness expense unjustifiable de- 1 rule. See & 54 Fed.R.Crim.P. ination of ; Advisory (a) (2) lay. of Comm. on sum- be Act, or should not utilized.11 quired under the All 28 U.S.C. Writs accepted ob- (1964).13 The and orders Government monses conformed § that, petitioners protest proceedings unimportant identified at that 11. It if such is subject may lineup, the sub- are secret counsel for ject obtaining a warrant. See first would be excluded. Fed.R.Crim.P. without (d), (e). See 4-136 and Carroll The views § & Government D.C.Code impracticable. Parry, App.D.C. (1919). procedure The as lawful but jurisdiction, duty, why, see no all other court had and indeed a We reason crime, grand proceedings jury inquiries Rule into asserted to conduct under Fed.R.Crim.P., including, body type this of that determination could a “probable an summons and enforced cause believe that and order issued and that court. offense has been committed the district place it”—the before the defendant committed that take grand body jury any that must same must made more than determination which handwriting, fingerprint, before course, an Of witness a laboratory issuance of arrest warrant. required, police may analysis. All that the. an arrest seek jury grand if if wants further evidence warrant after the identification identification, they appropriate. is that the function on deem that to be performed lawful manner a elsewhere passing note, We before on appear before and that grand witness posed by question jurisdiction, a of our our jury of results inform it supplemental requesting earlier testimony availability on and thus the the supra. In that memoranda. See note point States for trial. See United order, prompted parties to dis- we .1968). Doe, (2d Cir 405 F.2d 436 sought by cuss whether the relief jury grand course, use of Of such through was available process with to be consistent would have process grand its district court aid of as set standards the Fourth Amendment jury proceedings. appear Both to have opinion. this in Part II of forth misapprehended customary nature 13.Although power would proceedings the trial court those we and of the and the take the view that the jurisdiction grand potential jury. They if the ultimate have prosecutive in misde- contemplated lineup decision results take would have to charge. jury place grand meanor before convened lib- to individual argument right that D.C.Code forcement oral served unique jurisdiction erty. area executive- on the In this 11-963, confers § nec- activity it is pre- to hold law enforcement “Court of Sessions” General whereby rea- essary liminary or admit to to have means hearings commit complaint proposed intrusion persons charged with sonableness bail fact. liberty before the felony, supervisory can be reviewed court has that supply ingredient authority Compare, prepared We are that court. how- over ever, disposition relating expedited appeal D.C.Code 11-981 § power judge” 4(111) court to Rule the General “each of that cases. See February Rules this court effective issue arrest warrants. of the Accordingly, deny issuance we unnecessary think now We requested be- writs but treat materials question resolve us to de fore final taken appeals us as from orders jurisdiction termination of our becomes pursuant ll-741(a) (1). to D.C.Code § apparent magistrate orders appealable are final and thus under D.C. II (a) Code 11-741 What Lineup Is a Contemplated Reasonable finally challenged decided orders is Liberty Intrusion on and Hence is Consti- question subject will be re whether Permitted tutionally quired stand lineup. This view finality of decision is with that consistent Petitioners, relying aon traditional expressed in Industrial Cohen Beneficial approach taken search and seizure most Corp., Loan cases, position that take the the contem 93 L.Ed. 1528 ob We plated lineups amount to unreasonable that it no on the serve makes difference deprivation liberty and would violate finality of admis the issue position Fourth Amendment. This is bot sibility any lineup identification tomed idea on the such intrusion subsequently litigated. question of “probable can there is be lawful unless admissibility in a criminal of evidence By that term mean cause”. separate trial is a one issue from the is, probable cause for formal arrest—that which we are now The instant concerned. to believe a crime committed pretrial analogous orders are bail orders probably suspected and that the com person criminal cases. Such bail orders are Concededly, in that we mitted sense it.14 they liberty pretrial final as to relate dealing probable the usual not here with Supreme rejecting the Court has so held ingre cause arrest case. former While extraordinary of re the use to obtain writ of obviously present, dient element Boyle, view of such orders. Stack v. 342 for “probable” identification sufficient 1, 6-7, (1951). 72 96 3 L.Ed. U.S. S.Ct. lacking formal this instance. conclusion, light infra, our of parties agree we so The so hold. prior to arrest can be formal squared with the Fourth It, therefore, Amendment under appears appropriate circumstances, appropriate to re- right the Fourth inquire first whether under by appeal possible view direct of such be- orders it is to view a lawful Amendment procedure. an integral part liberty comes by govern of deprivation personal of opportunity view the ar We for immediate anything as but formal mental action expedited by review of such orders state Obviously, direct restrictions rest. balancing, thought of essential on the scale liberty often without personal occur reasonableness, of law en- charges. of the interests One placing formal criminal 14. This is the standard under Fed.R.Crim. district court under son to answer 4(a) 5(c). P. for arrest or issuance an Fed.R.Crim.P. holding per- summons and for an arrested

212 reasonably ques question

may stopped necessarily and asked a record pre- absent police requested senting to furnish for tions issue decision. Indeed, Supreme in recognizing question

identification.15 this be- went momentary yond Ohio, on-street holding sanctioned supra, evidentiary hearing. detention under Fourth Amendment remanded for an In so tripa though doing worthy even does not “eventuate in it is it note that the Court prosecution for suggested house and three the station circumstances in which the Ohio, 1, 16, crime”, Terry 88 interrogation might proper— be considered “that (1) probable L.Ed.2d there was cause S.Ct. arrest”; though (2) traditional “that even Morales’ confrontation lacking. de with was voluntarily for formal arrest was Such undertaken him”; and, in- legally significant charac most accurately tention was case, stant within the confessions person terized as “seizure” of the “that were product scope illegal Amendm not the protective the Fourth detention.” very at at At the Id. 1868. Sure ent.16 88 S.Ct. U.S. S.Ct. are not least would that there ly then, suggest reviewed seem orders here some Fourth Amendment merely room under the constitutionally invalid because legal facts prob- detention short of on tradi do not entail a formal arrest based able cause for a See type “traditional arrest”. ingredients tional Mississippi, also Davis v. U.S. cause. significant A case relevant by the term United States was decided last however, recognize, that what is con- We York, Court, v. New Supreme Morales templated person. here is seizure of the 291, 24 L.Ed.2d sure it is more severe seizure than To held that the New York court (1969). The momentary Terry, obviously one but possessed authority consistent state than a magnitude lesser formal arrest. brief custo- Amendment to conduct Fourth “ severity petitioners view the persons rea- Counsel ‘those interrogation

dial including knowledge of such detention suspected possessing sonably possible risk of misidentification and subse- investigation in circum- crime under quent charges. high criminal While presenting involving crimes stances so, possibilities those do not affecting pub- realistic do public degree of concern ” proposed lineup detention such a elevate safety.’ Id. at lic Moreover, Morales, prop- level of formal arrest. 22 N.Y.2d People citing from procedures erly conducted identification 238 N.E.2d 290 N.Y.S.2d Court, Supreme Court as have been viewed Supreme faced reducing possibility of misidentification argument the detention with an ques- that the accepted level such ‘for custodial when was forbidden at one the fact-finder appropriately for cause for than tioning on less * * 218, ”, Wade, 388 v. v. U.S. Morales United States trial. traditional Denno, 104, 388 (1967); at v. York, 90 293 87 1926 Stovall supra at S.Ct. S.Ct. New 293, See also (1967). 1967 decide the S.Ct. to U.S. 87 supplied), chose (emphasis interroga- D.C.App., Lee, or a seizure for such detention 271 v. States properly purposes. under Handled (1970). tive A.2d 566 2, supra Wade, note United States v. pur- Denno, 2, supra Terry note the Stovall v. recognized decision 16. It expressly pose propriety has expressly detention undecided left proper. v. upon also Davis Mis- “investigative been held See than less [s]’ ‘seizure 729, sissippi, supra 5, at 394 purposes note U.S. for of ‘detention’ Ohio, Terry Adams v. United interrogation.” 89 S.Ct. 1394 and v. and/or States, U.S.App.D.C. 130 n. 1879 392 U.S. 88 S.Ct. (1968). concerned are not here We Ohio, 23-24, supra, supra. Indeed, possible note 16 it is at 392 U.S. proper lineup may recognizing safety police

under circumstances a as a not even of the ac- stage” be a “critical factor that decision. In a similar con- cusatory presence text, governmental recog- process requiring interest was Wade, supra States, supra, counsel. United States v. in Adams nized v. United Greene, at and in supra. U.S. 87 S.Ct. 1926. United States v. Ohio, course, Terry observations, reflected connection with these Of In supra, recognize we are bound to test this intrusion well to and discuss alterna against they police established Fourth Amendment tives left to the if are denied the necessary doing, help standards. In so it is to neutral and detached apply type reason- Certainly, constitutional mandate of branch in this of case. Court, Municipal police making ableness. Camara v. should not forced into Any S.Ct. 18 L.Ed.2d 930 formal ob U.S. unlawful arrest. evidence suppressed. tained incident thereto would be evidence, some identification This includes “In order to assess the reasonableness By g., Mississippi, supra; e. Davis v. general as a contemplated [the seizure] U.S.App.D.C. num v. United focus proposition, it is ‘first to relating to F.2d 465 both (1958), al- upon the interest which governmental Greely, fingerprints. Cf. upon the legedly justifies official intrusion 425 F.2d 592 U.S.App.D.C. constitutionally protected interests ruling relating suppressing trial court private citizen,’ ready test for there is ‘no illegal testimony based on an identification determining for reasonableness other arrest. against balancing need [seize] ” police invasion entails.’ If the are to know whether which [seizure] 20-21, out, Ohio, supra, right singled at man been or whether they him, Mu- quoting at from Camara v. must to look for continue 534-535, Court, arrange other con- nicipal supra 387 will be forced some Recognizing possibilities frontation. come to mind Such intrusion, go take note to the arranging seriousness of we the woman governmental subject’s home, place employment, interest on the other frequents. addi- end of the scales. that he other location tion, police arrange not do it will police are confronted with a woman subject requesting the a confrontation reports that she was forced into who “hearing” in appear for some informal high-crime raped in a alley area office,17 or Attorney’s the United States Surely, point p. m. knife at about 10:40 Nor could courtroom station.18 compelling interest exists Aside from be utilized.19 confrontation only apprehend state to the offender —not pro- inherent suggestibility obvious desper- punish improve him but also subject and cedures, that the apparent it is safety and regarding ate urban situation meaningful deprived his counsel To this extent lawlessness. Govern- verity of as to cross-examination right, indeed a ment has not but identification.20 courtroom en- every reasonable law duty, employ integrity What, thus, obvious becomes to maintain forcement device justice can insuring of criminal an order- state in its role administration reason- procedure which v. community. ought to devise peaceful ed and Cf. U.S.App. States, U.S.App. Greene, 134 19. Mason v. United v. 139 United States (1969); 280, 9, 1176 F.2d Clem 414 429 F.2d D.C. D.C. (1970). 193 U.S.App.D.C. States, 133 ons v. United U.S.App. States, 133 v. United Williams 27, (1968). 1230 408 F.2d 185, (1969); D.C. 409 Cun F.2d 471 218, Wade, U.S.App. ningham States, 388 U.S. v. United States v. United 133 (1967). 1926 D.C. 409 F.2d 168 line-up prearrest furnishing ably persons fingerprinting makes “available for and of respect sample, identification in other crimes hair of that com of division court posed Judge to Bazelon Circuit which there less of Chief and Judges recently Adams and arrest.” v. United Leventhal MacKinnon [make formal] recognized F.2d the U.S.App.D.C. need Government “the Indeed, efficiency in its in interim for and its criminal (1968).21 expedition 24,826 Shaykar Curran, (D. in as it relates to investigation processes” order No. C.Cir., 12, 1970; formal filed November interim identification short of procedures January 1971), Though January its unpublished order dated arrest. in order dated compel relating margin,22 motion that government to to set forth subject following part significant Court, 21. It is this this to decision in the Adams case States conditions: Appeals for the Dis report First, Shaykar Miss to shall obviously trict of had in also Columbia Circuit taking finger- district court for re mind defendant who was samples prints, palm-prints, hair entry and by magistrate leased the Bail under days this within from the Reform Act of U.S.C. length con- order. strictures seq. et In the case a bailed defend by designed ditions the detention ant, case, contemplated rigorously ob- district be court must court-ordered tion though entails brief deten served; particularly, petitioner be tois person liberty. Al then at hours, longer detained no than four opinion of the court did obligated any inter- to to submit constitutionality discuss the of such lim rogation any Pe- or to make statement. grounds for ited detention formal absent may accompanied by law- titioner yer during her arrest, court con it is certain session; an Assistant templated persons liberty being or at present. Attorney may If U. also be S. grounds for dered into a on less petitioner’s requests, counsel so a Court if formal It would arrest. seem session; Reporter present shall be regarding such rec constitutional doubts regarding he the all shall record statements procedure sugges existed the ommended tion would not have been made. objections including any proceeding, See also by procedures used. counsel to Greene, U.S.App. may subject Second, the Government D.C. taken, so as well as similar evidence embodying recommendation. a similar already possession, evidence its essential scientific considers tests 24,826 January 25, 22. No. investigative effort. Govern- Kyin-oo Shaykar, Petitioner Cleo adequate provision for ment shall make experts (a) petitioner, her counsel and Respondent Curran, Edward M. Honorable of the nature advised advance - Judge; Bazelon, Leven Before: Chief Government; proposed by tests MacKinnon, Circuit thal and (b) opportunity in advance to have Judges, in Chambers. suggestions comments and make Government testers or ad- alternative ORDER place procedures. This shall take ditional This cause came on for consideration in which in the form of a conference petitioner’s petition writ of for a exchange experts meaningfully can prohibition and for immediate considera- views, conference information and argued by counsel. thereof and was by by counsel and be attended important Petitioner and diffi- raises Attorney; the confer- Assistant U. S. questions interpretation ap- cult requests so if ence either counsel shall plication of the Fourth Amendment. See preserved later considera- Mississippi, Davis v. tape reporter’s notes or tion recording. either 1394, 22 89 S.Ct. In L.Ed.2d 676 requests petitioner If so of this order balance need experts unfeasible, her shall this is be more these Court for novel time consider present the tests. questions fully with the need of efficiency Third, protection expedition Pe- afforded Government for investigation processes, of the district titioner the order in its criminal inventory regarding evi- of taking, of an return it is days of its taken within ORDERED the Court dence prob- stay if of that evidence District destruction Court’s by the effect, pending is not found able cause tinued in further order precedent, J., it note 11 See Fickling, dissenting, not as is court does view infra. particu is recognizes 17-306. This that the court both the D.C.Code obvious larly is novel and procedures and the true where need to such fashion would, public in great. need This so acknowledge to constitutional room need reality, present seem the view of Surely, to be Shaykar Miss would for them. par court who six members the circuit by order to not be submit to forced order; ticipated Shaykar in the liberty with un such limited interference Greene, and Adams supra; States v. less that court deemed the basis therefor to as as Circuit supra, well reasonable therefore constitutional. in his Judge Justice) Burger Chief (now Shaykar court’s order is under that Miss If Adams, ex opinion he concurring in where necessity to identified, not decide the pressed “arbitrary for interference concern been, by issue will have the terms liberty.” U.S.App.D.C. with Id. order, inescapable, however, evaded. is . F.2d at 581 court, wishing not to be though so, doing reality viewed as resolved one, hardly as The issue “abstract” constitutionality of invasion it, it is Judge Gallagher when neces- views liberty there directed. It cannot and should sary cryptic us to between for decide magistrate be otherwise. A court or presented are not holding that the facts issue a and the does warrant or whether enough to warrant the intrusion thereafter it —all the under execute facts short formal no set of standing issuing authority the same To pass muster. cause can constitutional may later declare what was earlier au simply present facts insufficient hold thorized to be unreasonable unconstitu says set of facts would implicitly that some why tional. This is we decide the constitu lineup. proposed be sufficient tional rather than “avoid” it as the issue Clearly, us main dissent would have do. balance, realistically viewing On present of that issue “is essential resolution lineup of the disposition impact of a court-ordered proper to case”. [the] may properly return, time of the evidence sueli ef- whether continued Katzenbach, 122 fect. submitted. See Smith U.S.App.D.C. Fourth, any growing evidence out of extends Since Petitioner’s interest samples may these and tests be included taking of her use as well as magistrate in the evidence submitted to a questions prints samples; hair prob- for a determination for of Pro- Writ raised Petition (a) able a warrant for for remain determination hibition alive petitioner’s arrest, (b) hold and/or taken is If the evidence this Court. petitioner answer, Rule see Federal destroyed, for counsel the Government Rules of Procedure. Criminal This sugges- promptly this file in court will way dition binds this Meanwhile counsel for tion of mootness. finding that such evidence constitu- shall the Government both Petitioner tionally purpose. Pe- be used either ready file briefs to be undertake may apply titioner for re- this Court promptly not thus the ease is event wrongful lief from arrest and deten- petitioner or the Gov- and either mooted tion; time, at such this Court will con- application to this court make ernment sider whether evidence obtained modify This this order. vacate compliance Petitioner’s with this Order precedent; taken to be order is lawfully petition- can be used to sustain presenting means of intended as a er’s detention. Court. case to the issues Fifth, samples neither the actual ob- Judge Bazelon concurs Chief pursuant Order, tained to this nor evi- provide foregoing order, but would performed thereon, dence from tests shall stay part condition of the second grand jury be submitted Petitioner, request her ex- that at the purpose pending further reporter perts, lawyer shall and a may apply to court. The Government testing present session. at the condition; this Court from relief time, Per Curiam the Court will consider 216 Supreme are unmindful that the liberty,23 contemplated we con We

kind here on 721, Mississippi, U.S. clude, in Davis v. 394 expressed in Camara Court under the test 1394, 676 (1969), 22 L.Ed.2d while Municipal Court, 523, 89 U.S. 87 S.Ct. S.Ct. 387 appearing thus sanction suggesting can public that the interest (1967), 1727 fingerprints to secure procedure a similar validly require this intrusion. suspects, that such observed unarrestable circumstances, proper Under against method of procedure is a scientific more backdrop required specificity,24 such a eyewitness identifica- identification device as lineups prove court-ordered 727-728, can 1394. In our Id. at 89 S.Ct. tion. reasonably be governmental related to support our tends judgment, opinion private rights, and thus a constitutional bal- court-ordered identification conclusion regarding ance both.25 suspects Grave reservations can be procedure for unarrestable exist, however, as to type whether this constitutional; certainly it does not indicate lineup, court-ordered against with the identi- prohibition connected any intended arrest, may formal constitutionally used procedure used in case. fication to be identification, in other than involving Indeed, though serious felonies eyewitness grave personal injuries or scientific, always threats of the accurate.26 is not less less interest, governmental same. The though appeared to Moreover, Supreme unfair, serious, is magnitude sug- not of the same in been more concerned have eyewit- involving commercial crimes property or the least accurate gestive and thus money forgery such as or pretenses false or discussed when ness identification other less serious and the offenses. While the human difference between significant “sounder course” is to Indeed, view all intrusions it is method. scientific case”, “in all light exigencies to this difference Court referred that the 15, Terry Ohio, 392 n. interro- avoiding U.S. forbidden S. context of harassment, searches, “improper Ct. (1968), would seem that gation, ” offenses, at involving per- some serious Id. degree.’ ‘third line-up and the injury danger, weigh part prohibited sonal or as a less of these None 1398. 89 S.Ct. per- analysis contemplated “central element will events We, procedure. Id. In such cases it is proposed reasonableness.” under the mitted highly likely governmental therefore, in- Davis v. Mis- not believe do casting outweigh terests in law enforcement cannot read supra, can sissippi, right liberty, being from of court- type or freedom doubt stitutional antiseptic ordered into even most line- Fifth Sixth where ordered protected. up, fully under circumstances short of traditional rights are to be Amendment arrest. formal Of whether to the then turnWe course, each must be considered on its case spec- requisite presented facts as facts. own begun a result functions was 23. Those interests are well discussed suggestion Ohio, in Adams v. States, U.S.App.D.C. Municipal and Camara v. Court. (1968). So-called 399 F.2d 578-579 n proved lineups a useful “Adams” “ ** par- justifying And improving the effectiveness tool ticular officer must intrusion convicting both as law enforcement point specific articulable be able guilty innocent. and release which, together taken with rational facts See also Stevenson, United States v. U. facts, reasonably from those inferences S.App.D.C. (No. 23,922, decided Decem- Ohio, Terry v. warrant intrusion.” 3, 1970). ber 392 U.S. at eyewitness “unforgettable face” in desirability 26.The and reasonableness recognized. already Russell lineups involving is well identification arrested U.S.App.D.C. suspects v. United is well fact. Such established interlacing of executive and an innovative Ohio, at present supra, v. 88 S. ificity as to articulable facts was 392 U.S. upon. and cases there relied permit meaningful in order to evaluation Ct. police for the think it is proposed of the line- We of the reasonableness specify they at their conclu- how arrived by judicial and detached of- up the neutral of group in the sion that the individuals Terry Ohio, supra at 21- U.S. ficer. It suspects. photographs possible and related were nn. 19 & 88 S.Ct. 1868 they sex of- course, may previous be that were That, text. of is constitutional operandi, or fenders with similar modus touchstone of such order. commit they opportunity had complaint rape The record reveals a of residence, employment, offense because of point a statement knife the victim vicinity in the presence generally or known subject’s photograph among pic- that one those may of the offense. suspects” reveals “possible tures of “facial acquaintances of persons previous were * * * similar to those of the features cases, suspects ” possible victim. some * * * man assaulted her. The vic- who similar may out singled because positive tim also said that to be she would or a description. These characteristics suspect person. have to see the may factors of these and other combination are not unmindful that often We their police conclusions led police complainant27 are told all the suspects. There regarding group imply and we do wish to that more every reason, exception of a case dogmatic or specific identification from the informant, involving a reliable confidential expected constitutionally re- victim they police disclose all factors Surely, police quired. should not be en- possess likelihood shedding light couraged positive demand more identifi- cor- is the that the tentative identification honestly victim cation than the able to elements, missing rect As to the one. But such tentative and hesitant furnish. judicial simply agreed with officer complete identification must taken in gave the conclusion of judicial sanction to lineup context to know whether a rea- subject police that the selection of this required. sonably be deductively enough to war- was accurate instance, magistrate in- For was not lineup. subjective ordering rant “If opportunity test, formed as the victim’s to ob- protec- good faith were the alone subject during serve before would Amendment tions Fourth rape. significantly, More all that is reveal- be ‘secure evaporate, people and the would houses, subject’s photograph papers, ed is was in their persons, group pictures pos- effects,’ from selected in the discretion was, Ohio, suspects. judicial police.” sible officer 379 U.S. Beck v.

thus, (1964). understandably unable to L.Ed.2d evaluate hesitating photographic iden- tentative recitation sufficiently detailed aWith against facts known tification will facts the officer articulable photographs these why concluded func- all-important perform his be able to suspects. possible were of reasonableness evaluating impact, against its proposed presented intrusion the limited facts Under possible, on though intru the extent invite limited to proposed “would way, the vice personal liberty. In this constitutionally guaranteed upon sions assist- writs of general old nothing more substantial warrants rights based faithful remain and we hunches ance28 is avoided inarticulate [possible] dissenting) ; g., J., (Douglas, Greene, 27. E. 139 U.S. States v. App.D.C. 9, Henry 4 L.Ed.2d Hayden, Warden, Penitentiary Md. 18 L.Ed.2d positive identification,” against use make a found that to our fundamental commitment suspect grounds there were reasonable dragnet technique. petitioner. line- Accordingly, reverse ordered we request up (John Doe) in case No. without granted upon the so-called promptly conditioned prejudice to the Government’s “antiseptic” procedure outlined submitting specific more information majority’s opinion. required opinion. in this In case No. remand, per the Original (Wise) we for a petitioner in this court The moved

government’s request, permit dismissal prohibition. writ of lineup of the order for the the unless therefore, and, line- Government to use the grant should conclude I would the writ up that a accomplishing holding before arrest. the respectfully formal dissent from of of Columbia Court judge the District

So ordered. authority to of has the General Sessions1 appear suspect rape order a in a case FICKLING, (dissent- Judge Associate where, probable concededly, no a ing): arrest exists for the issuance of an cause states majority The against warrant him. rape gave The victim a police of two authority from emanates describing statement sur- circumstances separate though closely related sources: rounding the assault. Four later months Statute, 28 (1) the All Writs U.S.C. § photo- victim was shown a number of 1651,2 inherent (2) and court’s graphs possible of suspects, one whom power.3 accept these I cannot either of thought might she be her assailant. grounds authority contemplated police submitted an affidavit assert- in Part I. give my order and I reasons will ing the judge above facts of the Dis- think- give my Part II I will reasons for trict of Columbia Court Sessions of General ing the order is unconstitutional. (now Superior requested Court) and petitioner order which would direct the I PART appear below, lineup. hearing At the Columbia, 135 In Morrow District by was conceded the Government (1969), U.S.App.D.C. by was found judge “Sec- Appeals stated that Circuit Court peti- existed for literally encompass the D.C. However, solely judge, looking [es] tioner. by ‘established Appeals, Court containing affidavit ” Unquestionably, this Congress.’ Act of victim’s statement “the facial features reasoning applies in the case same photograph were similar those Court, which also was her, General Sessions be sure man who assaulted but to Congress. an Act of created person she would have to see him in States, Superior S.Ct ed Court District Now (1966), are cited L.Ed.2d 394 of Columbia. ju examples of exercise of spe power without reference dicial 1651. Writs. U.S.C. However, authorizing I (a) Supreme statute. all cific requirements point Congress strict would out established Act of courts upon appro- cause were insisted all writs authority and, though juris- respective the court priate in aid of their discussed, specifically usages I agreeable orders was not to the dictions and Supreme expect principles assume of law. assumed that Fed.R.Crim.P. also authority eases, were eavesdropping since searches v. United sufficient Katz 3. The involved. v. Unit- and Osborn L.Ed.2d power Recognizing that “All arrest —is hasten to Writs” sufficient. would Court, point everyone I now resides Sessions out that of us within General proper- potential it can jurisdiction. reach the of whether ly issuing purpose he exercised for the An 11-981 will examination of Section innovative There order. jurisdiction demonstrate it confers no statutory upon the two built-in restrictions in a case as this and therefore power: (1) exercise of this it can be used power exercise of cannot be Section 1651 only in respective jurisdic- aid aof court’s justified as “in aid of” 11-981. Section tion, purpose for its exercise Under Section 11-981 General Sessions agreeable must usages princi- to the judge only "against can issue warrants but ples of law. persons crimes and accused offenses The effect is, first restriction accused, judge has no Until someone is prevent statutory courts from this using jurisdiction a to issue warrant whatsoever power expand jurisdiction. to their As Here, admittedly, under Section 11-981. Professor Moore has stated only suspicion; we have no one has been officially accused a crime. It well of ** it is settled does not § investigating private- be that an officer has enlarge jurisdiction, a as estab- court’s ly made an to accusation one or more of statute; by

lished the or Constitution assume, colleagues. his It is reasonable to purpose the of 1651is to effectuate § however, Congress something meant jurisdiction.4 established more it substantial when used the term that, purposes Since “accused.” believe for the D.C.Code gives 11-9815 § 11-981, of Section no one is accused of jurisdiction the General Sessions Court complaint crime until a or an generally, affidavit over warrants probable majority compliance which cause in appears personal to shows conclude 4(a) against jurisdiction suspect re- GS Crim.Rule is filed is not over particular person, or an indictment quired, specific nor is when jurisdiction over or, is, my opinion 4’s subject is filed. It is that Rule potential matter if it then provision jurisdiction e., for summonses is the that at point some —i. potential power source for this might possible legally future it to power “[s]ubject spe- Moore, 54,10 to title 23” and Federal Practice ¶ J. cifically [2], (2d 1966). § 23-561. at 64 ed. Upon judges is- 6.Rule 4. Warrant or Summons 5. Section 11-981. Power of Complaint Di- sue warrants returnable to Criminal (a) ; vision record. Issuance. complaint, appears judge If from the Each District Co- may, filed from an affidavit or affidavits Sessions lumbia Court of General prob- Sundays comjilaint, any time, including with the there is legal holidays, complaint offense cause to believe that under oath able view, defend- lias been committed and that return- or actual issue warrants it, lias committed a warrant ant able to the criminal division against persons issue the arrest of the defendant shall accused of crimes court any law to District officer authorized offenses committed Upon request every case, he it. of .the execute of Columbia. attorney government proceedings for the a summons of his make a record shall purpose. kept More of a warrant shall issue. for that instead in a to be book may is- free of than one warrant or summons shall be issued The warrants complaint. charge. de- If a sue on the same response judges appear February fendant fails to After issue, summons, power Superior shall to issue warrant attorney government specific types Dis- unless the warrants under requests sum- Reform and the issuance another trict of Columbia Court 1970, Pub. mons. Procedure Act of Criminal 11-941). This (§ L. No. Yet, recognizes, power requirement majority order. The rule’s as the powers of a prohibition against “The inherent cause a clear the use limited. jurisdiction; not increase its a lesser standard. do powers as are essential are limited to such states to the existence of the court and * * * orderly efficient exercise of its process issues [challenged] jurisdiction.” 20 Courts § issue arrest jurisdiction of” “in aid Am.Jur.2d earlier, (1965).8 As I stated challenged Clearly, warrants. attempt is an juris- to extend process jurisdiction was an exercise of diction therefore cannot be based statutory specific determine whether power. inherent power should not utilized. should or Perhaps greatest fault is an statement This erroneous majority’s aspect reasoning on this challenged me that seems clear to Morrow, phrase case is belief that the attempt estab- process was an exercise to subject jurisdiction “conceded over some might give which then lish matter,” some is satisfied the fact that in an arrest jurisdiction to issue judge judge situations a General Sessions imagine more It is hard to warrant. jurisdiction an arrest warrant. jurisdiction attempt blatant extend concept broad employment of such a court, explicitly practice which is subject jurisdiction, com- matter while by condemned Section 1651. pletely ignoring personal jurisdiction, Earlier, restric- pointed I a second out unjustified. extension totally Such a vast power: the All tion the exercise of Writs judicial power frightening. of the agree- purpose for its exercise must here, jurisdic- judges the sense have used usages principles of law. able to the subjects. tion list of over an innumerable believe, in Part Since I for reasons stated judge, Can a relations who domestic dissent, violates II of this that the order actions, order a jurisdiction divorce over Amendment, also the Fourth this restriction man, wife suspected by married his prevents reliance on Section adultery, to file sworn admission denial conduct, though of such even no divorce inherent majority relies on the also action or related case has been filed? basis power of a court as an alternative jurisdic- judge has “conceded Since lineup support issuance of the order. cases, he might saywe tion” over divorce that, essentially this recognizes, however, or, alterna- power has inherent to do this reason- or fall on the same basis must stand his tively, jurisdiction that it is “in aid of” ing as the All Writs Statute. might simplify future divorce since an order Columbia, brought? if action one is Is such In Morrow v. District can saying judge recog- so different from that a supra, Appeals the Circuit rape suspect order a to stand in “power of a court nized inherent him might in enable since the future this to ef- types issue different remedies one asked warrant if issue an arrest jurisdiction over some fectuate its conceded can- my opinion, powers inherent for? In this court’s subject posited matter” and some writs, until there is ap- play not come into here extraordinary power to issue actually cases, dispute specific subject before matter propriate I do not thereon.7 court, alleged independent trial deny nor the exist- proposition, this do I power. power. inherent inherent of a trial court’s ence powers ancillary juris are also discussed at Inherent 7. The court also discussed [6], Moore, supra distinction, J. note 0.60 ¶ see Morrow diction. For the Columbia, supra, U.S. v. District of App.D.C. at 732 at 164 n. n. issue; be no need to to issue should there would Bestowing power judges9 order, despite question. its reach the Courts constitutional type this nature, deciding should refrain from constitutional grave “antiseptic” can disposi- the con- issues when not return of sequences such as the case.11 investigatory arrest. Gatlin demned U.S.App.D.C. principle points up This an additional practices F.2d 666 Unlike opinion. problem majority’s I have with other and under foreign some countries orders Despite the fact that it finds these generally courts government, forms of justify improper, expended effort is great investigatory are not the United States ing type of this issuance Rather, function agencies. Clearly, future case. even under neutrality and detachment.10 calls for case, majority’s view of the constitu their au- Normally, do not lend our courts reached,12 nor tional issue need not thority investigation until to an should reached.13 established. Rather cause has been however, dissent, writing Since I am establishment, function aid its the court’s do I feel am not so restricted. Not has been that standard judge is to whether under- free to the constitutional Police, by grand juries met. aided rather, but, I am pinnings ruling of this investigatory arm prosecutors, as the serve compelled to so. do alter If government. we wish a citizen forcing holds moment relationship assuming — against his will station to come to calling constitutionally that we can— further, and, stand on compelling him to upon police investigation aid a courts to lineup under display “antiseptic” in an cause, then to establish helping contempt imprisonment threat change. legislature should initiate Rather, it states court is not an arrest. upon merely a “lesser intrusion this is PART II supported liberty” and be can suspicion”; it is not an since “lineup “articulable Finding that the instant order” not arrest, need cause to arrest probable judicial scope legitimate exceeded the balancing employing a be shown. After power, normally disposed I would be cases, that, test, in some majority the holds prohibition merely state that the writ law, presume broad con- not of constitutional the does appropriate pretend magistrates of the exercise of siderations that mere have such judicial power prevent power. such There has been discussion determina- actually compelled by magistrate, power tions unless nor of a the inherent Barr v. litigation before the Court.” assertion that Section 1651 extends 204, Matteo, 171, 172, magistrates. 355 U.S. 78 S.Ct. (1957) ; 205, 2 L.Ed.2d 179 108, Aguilar Texas, U.S. 84 10. See v. 378 v. CIO, 106, 110, 68 335 U.S. (1964) ; 1509, L.Ed.2d 12 723 S.Ct. (1948); 1349, 92 L.Ed. 1849 S.Ct. 10, States, v. United 333 U.S. Johnson (4th Franke, F.2d 27 Heed v. 297 (1948). 367, 92 L.Ed. 436 68 S.Ct. 1961). Cir. duty Supreme has a 11. Even the the or- In this case the court reversed presented constitutional avoid decision on inadequate dered because of proper questions dis- “unless essential constitutionality Hence, record. Brucker, position of a case.” Harmon v. issue “es- is not an such a 433, 435, 579, 581, 2 355 U.S. 78 S.Ct. disposition proper [the] sential Surely (1958). we have a L.Ed.2d 503 case.” greater duty even restraint to show similar with a 13. When faced doc- the fundamental to observe Supreme us, unnecessary that before constitutional trine York, 396 U.S. questions v. New Morales Sohm should avoided. (1969), refused U.S.App.D.C. 382, Fowler, 24 L.Ed.2d S.Ct. ques- serious constitutional decide F.2d complete and parties] of a in the absence how much [the matter “[N]o important proper of an favor the settlement record. however, of warrant volved,16 here form upon liberty can coexist an intrusion and, consequently, contemplated is Fourth Amendment.14 with the be considered. clause must Warrant up made The Fourth Amendment the Fourth overriding standard The . reasonableness two clauses: reasonableness;17 ap- when Amendment It states: Warrant clauses. however, of the War- plicable, the effect to be secure people right of than upon less is that seizures rant clause effects, houses, persons, papers, their per se. probable are unreasonable cause searches against unreasonable inquiry into reasonableness No further violated, seizures, and no shall coupled necessary. Terry decision issue, upon probable but Warrants shall Mississippi, 394 from Davis with dicta affirmation, cause, supported or Oath L.Ed.2d place to describing the particularly Fourth left effect of (1969), searched, things to persons cause probable requirement for Amendment be seized.15 conclusions alternative unclear. Several Ohio, S.Ct. 392 U.S. may be drawn.18 allowed 20 L.Ed.2d 889 the Court in all is that possible conclusion One admit- weapons, limited which search for How- must be shown. probable cases cause tedly seizure, despite the fact involved standard ever, flexible completely ais sense, cause, probable traditional aof the circumstances varying with all out that was absent. The Court pointed probable concept, case. This' variable police dealing swift, on-the-spot cause, opinion dissenting stems from action Brinegar v. United Justice Jackson * * * been, historically has not which be, practical and as a matter could present 93 L.Ed. our Unlike subjected procedure. warrant concept issue— we focus on one where Instead, conduct involved is there believe cause to case must be Amend- tested Fourth person guilty this test of a crime —19 general un- proscription against ment’s variety would call for examination of a reasonable searches and seizures. [Id. gravity factors such as: 1879.] crime; whether the are concerned mainly The Court pre- seemed indicate that War- with detention rather vention; rant apply clause did and therefore seriousness of the intrusion type existence of was not in- necessitated of detention em- za, agrees (9th 1970) (border 14. Whether one that this is an F.2d 876 Cir. search). arrest, question but can person is there is a seizure of the which 18. I refer to inter- these because are governed by the Fourth Amendment. pretations which would come closest supporting majority’s result. amI IV. 15. amend. U.S.Const. saying only these are the inter- 16. The Court stated: pretations possible. Terry not meant was . police If this case involved conduct to be definitive. As one commentator subject to the Warrant Clause put it Amendment, have to Fourth we would foray this was Court’s first into “probable cause” ascertain whether particular this it thus thicket is justify the search seizure existed to understandable made conscious place. However, took which effort to leave sufficient room for later not the case. [392 U.S. movement almost direction. 1868, at 1879.] UaFave, “Street Encounters” Terry, Sibron, Peters;' Constitution: Wyman James. Beyond, 67 Mich.L.Rev. Terry (1971) ; L.Ed.2d 408 (hereinafter LaFave). cited as 1868; supra Ohio, El Brinegar States, supra; v. United v. GS kins Guadalupe-Gar See also (1960) ; Crim.Rule 4. Crim.Rule GS United States v. instance, ployed. ing For where crime something less than an arrest involved, recognized. is involved a “seizure” is murder Since serious however, deten- only seeking a 10-minute Fourth police applies,20 Amendment fingerprints, taking purpose of reasonableness tion for the standard and the War- issuing justified in rant might requirement clause’s magistrate for probable quantum may of evidence cause though the a warrant be satisfied and the seizure only probable sanctioned, cause despite show sufficient to a failure to meet probable cause probable rather than traditional suspect, cause to believe test. believe, Moreover, It if the victim guilt. when these lesser detentions down are police officer shot happened to be involved that probable variable cause duty, quantum same comes play this into suspicion the course becomes legitimate. might lengthy more justify of evidence the issuance of a search detention or even appears adopts majority essence, cause be- probable

warrant. latter alternative.21 Under this test comes one of a number of factors balanced crucial is whether there is an overriding in a test to determine the stand- is, arrest.22 If there then we must look frisk, Search, ar- ard of reasonableness. probable traditional cause. rest, probable or detention—variable the intrusion holds that applies to all. proposed libérty brought by the upon about day believe it is far too late in the formal arrest. is less than a argue theory applies that this to arrests less As are considered intrusions which or full criminal searches. Such result arrests, situations refers would call for a juris- of our reversal reasonably and also states that “[o]ne prudence surrounding this area of the law. by the stopped questions and asked developed Courts have the standard of identifica requested to furnish and, cause to believe until it is tion,” Lee, citing United States v. D.C. met, any arrest is legally unreasonable. App., “stop” If 271 A.2d 566 If type however, of detention employed, the majority forcefully means to detain does not involve arrest or a full crim- for any purpose other than a search for search, inal we are faced with a different weapons', specifical we are then in an area question. ly left by Terry;23 unanswered The Lee There conclusion, possible another case being a voluntary stop upon involved in the wake of Terry, regard to the asked opinion for identification and the status of cause. With alter- plainly Terry’s ques leaves unanswered native the existing calling standard open. Lee, See supra United States v. probable cause to believe is observed where (cid:127) at 567 an arrest or full criminal search is in- volved; when that standard met, is not force- discussing police power When the conduct is unreasonable per se. How- fully detain citizens on the street ever, the existence of a detention involv- investigation, in a controversial we are 20. 16, 392 U.S. at 88 police bring 1868. er the choose to someone to booking. majority a station 21. for formal Observance states that a “formal ar- procedures generally of these formal rest” is not involved and therefore tradi- nothing probable to do with the time of an arrest. tional necessary. cause is not apparent Since it is to me that the con- 23. 392 U.S. at 19 n. templated lineup justified order nothing today cannot be We thus decide even test, under cerning standards of this propriety the constitutional my I approval need not here investigative upon indicate “seizure” less disapproval. probable purposes than for of “de- cause interrogation. tention” 22. The uses the term and/or “formal” ar- exactly rest. am not Anything sure is what in Lee that that indicates Surely meant this. police it right investiga- could not mean have a to detain for up upon to set a pure distinction based wheel- tion is dicta.

224 very is little room maneuver that to There can there largely unchartered area.25 it is In the instant case of arrest. have the short police

be no doubt but that the a fact. that we have detention conceded right stop to to and answer ask someone police, that the There can be no doubt but questions despite probable cause. lack any man inno- suspect, and reasonable Relating to “On the Remington, The Law this a cent of a crime consider Detention, would and Frisk Questioning Street” they consider detention. would Whether ing Suspected and Police Arrest Persons depends it an arrest on their definition General, Privileges 51 Crim.L.C. J. Ohio, supra of that v. 392 term. not an arrest. & This is P.S. 386 U.S. at 88 indicates States, supra, 128 Bailey v. United U.S. every Despite detention is an arrest. App.D.C. at 389 F.2d at 315. Where may not the fact that detention and arrest suspicion police acting on intuitive synonymous, to deten- assert however, hunch, or a mere is established it contemplated by power in the face of no to semantic participate citizen’s refusal halt or their answer that, appear nonsense. It would questions. States, Green 104 v. United least, present two factors before must be U.S.App.D.C. 259 F.2d 181 justi- a distinction from an arrest could be fied: (1) the time involved must be validity of a accepts one Whether brief, oñly tremely it (2) must involve interroga- detention for brief on-the-street stop rather an affirmative command tion,26 only upheld it is clear that it can to move somewhere else.27 these Within if distinguished it can be from an arrest confines, narrow it is conceivable that the for, arrest, if there is an then traditional Fourth Amendment reasonableness stand- probable necessary. cause is When ard might be satisfied.28 States, Kelley realized that v. United stop trip ato step from a brief U.S.App.D.C. 396, (1961), 298 F.2d 310 stint the station house forced suspect court found an arrest when a giant step is a backward was ordered to leave a an- restaurant contend To age investigatory arrests.29 questions, swer few should be clear ly Bailey States, allow a detention less U.S.App. v. United adopt up 2 hours. Delaware cause n. D.C. however, Act, been inter (1967) it has J., concurring). ed this preted (Leventhal, n. 10 requiring opinion, Terry, In his written before State, Judge nothing detention. DeSalvatore wrong Leventhal finds Storey (Sup.Ct.Del. A.2d 244 stopping up citizens sus clear Thompson, 1960) ; picious circumstances but indicates his (D.Del.1968). F.Supp. uncertainty of the effect a refusal Pre-Arraign- questions. Model Code The A.L.I. “[I]t answer stand still and (Tent.Draft No. way 2.02 just ment Procedure § hold be that 1966) way authorizes detention ing who reacts someone upon probable cause. minutes less than questioning.” time is that for this shorter The reason Sang Immigration 26. See Yam Kwai v. objectives of the drafters felt Service, U.S.App. and Naturalization any pre-arrest should limited detention (both 411 F.2d 683 D.C. verifying securing identification concurring McGowan, J., Wright, cooperation. asking For these J., dissenting). purposes, be more than should 20 minutes Commentary adequate. at 98-99. See 27. But see Price D.C. Report and Recommendations 29.See Mun.App., A.2d where Ar- on Police Committee per Commissioners’ this court ruled that a restraint of a Investigation It is in- period rests for liberty for even a short son’s full police years ago teresting that (Emphasis added.) is an time arrest. only way they urging could that (see were 28. The Act Arrest War- Uniform they bring sus- crime was if could Act, control ner, The Uniform Arrest Va.L. prob- pects on less than into the station purported- (1942)), Rev. would that violation not make arrest renders Amendment does a formal this is not are likewise bound legitimate. meaningless. To Courts “arrest” the term Texas, Aguilar v. to a the amendment. See that a citizen can be ordered tend supra note 10. and then police against his will station stage and on a further to stand ordered will, viewed, and again against his a Mississippi, supra,

be I read Davis v. beyond reason. not be under arrest significant roadblock to this order. lineup is does it matter that suggests What Dicta in that case that in some “antiseptic” ? The fact official permissible limited situation it might be kept record will be and therefore the suspect’s despite take a a lack fingerprints will, hopefully, pub- spared probable citizen some be stressed the cause.32 lic recognize humiliation reliability plus is irrelevant.30 I of that evidence scientific that this liberty” per- is less an upon relatively upon “intrusion slight intrusion than placing a jail days, technique man in for a ex- security. few sonal This was yet, nonetheless, pressly eyewitness both are iden- distinguished arrests. from lineups tification. It is are less LaFave, Professor champion rather, fingerprints; scientific than probable variable doctrine, would Perhaps are not scientific at a more all. old this contemplated lineup beyond the significant distinction the two between permissible limits of the Fourth Amend- processes is the character of the detention. ment. He has stated: Fingerprints anywhere can be taken in a victims, A full lineup by the —attended Lineups, however, matter of minutes. nec- witnesses, offender, suspected and his essarily time; also, involve more the sus- attorney displays several other —which pect must be ordered to move rather than persons bearing some to the resemblance merely stop.33 suspect hardly can arranged be within

time limits that pass would muster for stress wish to In conclusion I a temporary any attempt seizure. If “the majority’s concern share the is to be made identify suspect safety urban desperate regarding situation as the him, offender or to clear it must Yet, is to if this nation and lawlessness.” done other means.31 free, judici- remain it is ary all perspective The fact that magistrate or a maintain judge times to in a authorizes violation of the Fourth act constitutional manner. this, 1398] able cause. line thousands U.S. at [394 “investigatory de- will arrests” This is conceivable that occurred. practice procedures are not discon- condemned its termine possible. result would be com- tinuance demanded. Such a were, investigatory pelled if is limited These arrests for instance course, illegal. involving “rubric Gatlin a certain v. United situations practi- historically supra. police conduct” cally beyond scope the Warrant the use of Mr. Wise’s name Is accompany- supra n. clause. See very potential public source of case ing then We would text. humiliation? concept of variable look to the supra LaFave, note at 117. Terry. explain the rationale cause to regard light- we cannot take too In this palm prints 33.Fingerprints well as ly that: statement Court’s easily case, samples obtained could We have no occasion hair suspect’s however, even on own home to determine whether the re- major If quirements inconvenience. without of the Fourth Amendment street privacy by narrowly desired, un- be obtained could be met circumscribed could public The whole procedures obtaining, during avoided. attraction due completed procedure less investigation, could course of a criminal trip fingerprints and a whom few minutes individuals necessary. hardly there is no cause to arrest. station 226

GALLAGHER, opinion Judge, lacking Associate dissent- and decides are as so Judge prevent lineup to an ing (in part), with whom Associate affirmance of FICKLING, order joins: under review. finally it When reached consideration cast am that this court has I concerned facts, it so to determine “whether did ad an judicial aside restraint entered presented requisite on facts as opinion grave constitutional visory on specificity pres- as to articulable facts was question. not Courts have been cautioned in meaningful ent to permit evalua- g., time of mind. do this from out E. proposed tion of the reasonableness Case, 409, 2 1 436 Hayburn’s L.Ed. Dall. lineup by and detached neutral Ferreira, 13 How. (1792); United States v. acknowledges officer.” It that this “is the 40, v. 14 (1851); 42 L.Ed. an constitutional touchstone of order.” 507, 301, 53 Evans, 297, 213 29 S.Ct. U.S. proceeds It factual to set out various voids v. United (1909); L.Ed. 803 Muskrat by any record —but means all 346, 250, 31 55 L.Ed. U.S. S.Ct. Then, them as as I am far concerned. Public (1911); Workers astonishment, my the court concludes Mitchell, 75, 89, 67 (C.I.O.) v. 330 U.S. presented facts do not enable evaluation . 556, Rescue (1947); 91 L.Ed. 754 S.Ct. in- proposed of “the reasonableness Court, Army Municipal U.S. ** against impact trusion its on Barr (1947); 91 L.Ed. 1666 S.Ct. Yet, personal liberty.” previously it had Matteo, 355 U.S. decided this constitutional stated had (1957); L.Ed.2d 179 United States issue had concluded that: Fruehauf, 146, 157, 81 S.Ct. balance, realistically viewing On 5 L.Ed.2d denied, reh. U.S. lineup impact a court-ordered Hall v. (1961); 6 L.Ed.2d contemplated liberty, the kind here on L. Beals, 396 * * * public we in- conclude admittedly is record Ed.2d validly require terest can intrusion. square prevent so confronta barren Before issue. tion with the constitutional advisory opin- so we an advance And must be may occur there this confrontation proposed ion line- that the So, faced major facts. essential void more, up order is if but constitutional restraining it instead of

with this void undetermined, yet supplied. facts can be self, abstract has reached for the why “advisory opinions This are concept order under involved advisory merely They are opinions. ghosts hope I stamped approval. review its slay.”1 excursion for this will a one time But, says the constitutional majority, court, give. for reasons will present issue because should be avoided resolution of that essential predicate, it is to under- As a proper disposition the case. This It con- done. what the court has stand true, they say, ques- particularly where per- concept compelling siders new public great. tion is novel and the need is so reasonable appear son where here, Where, as just point. But that is grounds suspect committed believe a novel issue which constitutional grave (probable crime cause) the court deeply personal cuts into liberties suspect cededly lacking some cause —but which opinion should not vault into concludes present he it is committed —and prece- generations seeks to overthrow the Fourth Amendment this accords with lacking in concededly dents a record Having is therefore constitutional. on the the issue facts decide this, the facts essential grips done comes to labor the redundant of the merits. would be waning moments case Advisory Frankfurter, Opinions”, 37 Harv.L.Rev. “A Note

227 reasonably may days these to solve taken as not in- great need public put squarely areas. them prevent violence in urban forward tended crimes Equip- be- many inescapably.” times & Diesel I much too Aircraft have said as 752, 763, anxiety, though, Corp. Hirsch, we should In ment v. 331 U.S. 67 fore.2 our 1493, 1498, preservation (1947). sight not of the need for S.Ct. 91 L.Ed. 1796 lose art so prone shape litigation, freedom of the individual. are “Counsel control, in needs. far as it is within balancing in the wise two their lies is true comprehensive rulings. be- This involving conflict secure cases eternal for and his freedom of individual both counsel tween the defendants society, their of these on control stuff desire Government. Such “[t]he facts, upon But the part appreciate. is judgment not difficult contests its responsibilityUnited facts.”3 Union, etc., supra, International States v. court is to answer This “authorized 592, (Emphasis at at 541. 352 U.S. 77 S.Ct. questions”, Johnson, 282 White academic v. added.) 373, 367, 115, 51 75 L.Ed. 388 S.Ct. U.S. So, necessity being rather than there (1931). questions are not “Constitutional ab- constitutionality of the decide hypothetically.” Anniston be decided here, concept stract involved 353, 337, Davis, 301 57 Mfg. Co. v. U.S. the fac- duty deciding to avoid because 816, denied, 823, 1143, S.Ct. 81 L.Ed. reh. York, New tual void. E. v. g., Morales 772, 3,82 302 S.Ct. 599 (1937), U.S. 58 L.Ed. 102, 291, 299 396 90 S.Ct. 24 L.Ed.2d U.S. Farm Bald- citing Borden’s Products Co. v. (1969); States v. International United 194, 187, win, 208-210, 79 293 55 S.Ct. U.S. 591-592, Union, etc., supra, at 77 352 U.S. adjudica- “[Ojnly L.Ed. 281 (1934). Little, 529; v. S.Ct. District Columbia tion on the merits can the con- provide 3-4, 1, 468, 599 339 U.S. 70 94 S.Ct. L.Ed. setting sharpens crete factual de- (1950); Equipment Aircraft & Diesel process especially liberative demanded Hirsch, Corp. Army supra; v. v. Rescue v. constitutional decision.” States United Court, Municipal supra, 331 575- U.S. 591, Union, etc., International 352 U.S. 576, 67 1409. S.Ct. (1957). 77 1 563 S.Ct. L.Ed.2d present- Without facts the issues cannot be majority When the does wrestle with the ed “clarity, precision and certain- facts —or rather of them —it sets lack demands; ty”4 which decision constitutional inquiry pursued. out several lines to be “ * * * before of con- question] striking that it [a so does because “[u]n- law, both far reach- stitutional novel presented proposed der the limited facts * * * ing importance, passed upon upon con invite intrusions ‘would [is] ‘the facts should essential decision stitutionally guaranteed rights based [its] be definitely found the lower nothing [possible] more substantial [court] ” ” ** upon adequate Farm evidence.’ Borden’s Having inarticulate *.’ hunches Baldwin, Products Co. explored, v. enumerated factors every majority L.Ed. concludes that “[t]here ** Line, 275 Schappi v. citing Hammond Bus to disclose reason light they possess shedding L.Ed. U.S. all factors likelihood, “are (1927). questions Constitutional the tentative identific upon presenta- (Emphasis be entertained dubious is the correct one.” ation5 or, certainly, presenta- tions most added.) when Frye, Army Municipal Court, See, g., 2. e. D.C. 4. Rescue App., (1970) ; L.Ed. A.2d Gaskins States, D.C.App., 262 A.2d 810 ; D.C. Clarke v. United pertinent state- I do not consider App., 256 A.2d 782 complainant dig- rises to ment of Frankfurter, supra nity “tentative identification.” note of a that the record explored,

As read'the factors to be 293. The Court concluded satisfactory evaluation requiring permit did Government surrounding apprehension and probable the facts the may obtain well amount to what arrest,6 It that an a defendant. said say cause to I this is detention of the must (1) opinion hearing might develop that evidentiary curious result after a laborious arrest, or for constitutionality hypo- probable a deciding the was cause confrontation with the lineup suspicion (2) on the defendant’s bottomed thetical order probable police voluntary, the confession cause was rather the traditional illegal detention. product It not the to arrest. demonstrates the recklessness was Court, But, the “in the absence deciding issues serious constitutional said necessarily pre- squarely can the record that without facts. How essential the fully con- sents the issue and illuminates majority opinion be read with the being context which really fidence as to what decided? factual the arises, grapple with we choose course, agree, anything I which ques- legality of custodial question of the may to arrest should lead to cause for tioning probable cause on less than the pursued. But course taken 105-106, at full-fledged arrest.” Id. compounds puzzlement majority simply my supplied.) (Emphasis at 293. advisory why as have rendered the lesson to should think I opinion constitutionality pro- the on this court drawn from Morales lineup I posed might add that order. the novel and grapple now with should just puzzled why judicial am as as presented here grave constitutional officer extraordinary step took the precisely reason. for the same entering lineup carrying novel order implications it far-reaching with with up- reliance majority places The similar inquiry apparent little or no on his factual interim order Circuit Court’s part. open, expressly leaves record (No. 24,826). But that Shaykar Curran has example, for whether Government it clear that pains to make court seemed suspect as explored so much whether procedure con- following was the unusual “ interrogation voluntarily would submit * * * cerning samplings the scientific (Tr. 16). It no indication that contains 1-1— for more the need of this Court balance investigative all been ex- avenues have fully questions these novel time to consider plored request order for ex- the need of Government resort; was nor does it show whether a last efficiency in its criminal in- pedition and rape examination of the victim usual * * vestigation processes [and] fact, it In con- specimens. made for presenting the is- is intended as a means of ” testimony at tains no all. * * * I think we take sues. should not strain to draw at its word Morales v. New majority points does, conclusion, majority as York, supporting validity supra, already adjudged the con- the court But contemplated lineup order. procedures when stitutionality of There, in thing. Morales no such does not.7 it has court said defendant, by the nection with confession view, contem- that “the my ruling had whether the Court before it permis- constitutionally questioning lineup” is “may plated detain custodial upon as prudently traditional relied may less than sible * * restraint binding because precedent Id. at necessary impli- will be that Circuit carries with This eventually procedures inquiry brings some such if additional endorse cation relating substantially negative evidence but results a further scientific suspect involving point been has not conclusion should is that yet. not be entered. reached window, sought and the court went out ques- this serious constitutional decide vacuum, re- virtually with the doing I have related. In

sulting infirmities contrary to reams of

so the went to the

Supreme going decisions back government.” Baker v.

“foundation

Grice, way This is the a court L.Ed. 748

incurs “self-inflicted wounds.” unprecedented lightly so en-

tered officer should not

stand; agree and I with the gross-

this limited extent.9 Because of the case,

ly inadequate record in this I would pause

vacate the order without to enter- questions

tain the otherwise raised.

Marshall PEYTON, Jr., Appellant,

UNITED Appellee. STATES,

No. 5442. Appeals.

District of Columbia

Submitted Feb.

Decided March C., Glaser, Washington, D.

Michael L. court, appellant. appointed by this Atty., Flannery, U. S. Thomas A. Brewer Terry, C. Madison A. whom John Attys., Ransom, S. Asst. U. S. John brief, appellee. on the were YEAGLEY, PAIR, REILLY Before Judges. Associate Hughes, Supreme Original, Honorable v. The 8. Charles Evans Clarence Wise Murphy et al. the United Tim agreed 9. I am also accord on the dismis- companion sal of the case in No. Notes Rules, (Appendix), 18 U.S.C. Rule adop- (1964) (a) (2), paras. authorizes & Note to Subdivision 1 3 3771 § 18 U.S.C. practice, pleading, Gates, D.C.App., In re of “rules of tion Cf. pro- respect all procedure see Section A.2d Now including ceedings prior verdict 111 of the District Columbia Court ** supplied.) (Emphasis Procedure Act Reform Criminal 11-946), 11-923(c) 1970, (§§ & Pub. argument L.No.91-358, approved July 29, 1970, these en banc 10. Prior supple- requested sponte, cases, we, sua Stat. ju- point, our on this memoranda mental risdiction, provides: earlier issues not and other Fed.R.Crim.P. (See pleadings. provide note These rules are dealt with intended just every infra.) determination concepts delegated judicial power and accused of crime against persons authority Columbia)].” usurpation of not reflect in the District do committed Columbia, supra duly by law. See also Katz v. District of Morrow v. conferred See States, may also United power at That 417 F.2d 732 n.10. (1967), and emanating the All Writs 19 L.Ed.2d 576 Osborn be viewed as from Act, Morrow 1651(a) (1964). U.S.C. § examples Columbia, at revealing 417 F.2d 17 L.Ed.2d 394 supra District event, eavesdropping in aid of court-ordered In either 734-735. judicial power act without reference judge of that court connec- independently specific authorizing statute.12 “subject tion with matter jurisdiction” within [the court’s] This Court B. The Jurisdiction an- omnificent connection with assumed cillary jurisdiction concerning “matter memoranda, supplemental In their matter, which, pending for a over but parties take court has the view Mor- jurisdiction” at all. would jurisdiction a re-. All entertain Writs Columbia, supra F.2d row v. District quest writ in nature of for and issue a viewed power n.10. If this 732-733 prohibition. They language in rely on power as “All under Section Writs” Columbia, supra at Morrow District inquiry, language (a), supra, same ques- posed 733. We “in Act, process issues is whether rape and alleged since offense arrest war- of” to issue jurisdiction aid jurisdiction felony vested over that process was Clearly, challenged rants. for the Dis- District Court to determine jurisdiction an exercise of 12 supra. trict note We of Columbia. See statutory power should specific whether as re- potential jurisdiction have no would Thus,

Case Details

Case Name: Wise v. Murphy

Court Name: District of Columbia Court of Appeals

Date Published: Mar 16, 1971

Citation: 275 A.2d 205

Docket Number: 4480 Original, 5456

Court Abbreviation: D.C.