On the afternoon of June 16, 1965, the third-floor apartment of Norma J. Sword was broken into, and from it were purloined a large stereo set, an extensive collection of records and a piggy bank containing coins. Information vital to the apprehension and prosecution of appellant as a participant in the affair was supplied by Lois M. Vines, a second-floor neighbor. Between 1:30 and 2:00 p. m. on that date, she heard noises emanating from Miss Sword's apartment, and minutes later saw two men, one with black gloves and a brown paper bag, exit from the basement of the building and leave in a green 1956 Plymouth. Mrs. Vines, checking immediately, found the door to the Sword apartment open, and located the stereo set just outside the building. Then perceiving the Plymouth returning, she retreated to her apartment, and through her window watched the two men put the stereo set into the car. She jotted down the license plate number and later gave it to the police, together with physical descriptions of the two men.

About 2:25 p. m., two police officers received a radio report on the housebreaking, and a few minutes later spotted the Plymouth, which was parked and unoccupied about ten blocks away. During a brief surveillance of the vehicle, appellant came out of a building close by and got into the driver's seat. The officers then engaged him in conversation, observing in open view on the back seat several records, a brown bag of pennies, two screwdrivers, and a pair of black gloves. Appellant could not produce the registration card for the automobile, and told the officers that he had obtained it on loan from his brother about noon. Thereupon, he was arrested and the trunk was searched for the stereo set.1 Compliably with appellant's request, he was escorted to the nearby apartment of a friend, who informed the officers that appellant had been there for the past hour and a half. Appellant was then conducted to a precinct station, where shortly thereafter the events with which this appeal is primarily concerned occurred.

For the purpose of a possible identification, Mrs. Vines was brought to the station. Approaching it, she noticed the Plymouth, which had been parked in the vicinity, and remarked that it was the car she had seen earlier. She was taken inside, first to a room the transpirations in which the record does not reveal, and then to the threshold of an adjoining room. In the latter were appellant and about a half-dozen police officers in plain clothes. Several of the occupants, including appellant, were Negroes. Appellant was seated and, under Mrs. Vines' scrutiny, was requested to stand and turn around, which he did. At some point, Mrs. Vines identified him as one of the two participants in the pilferage of Miss Sword's apartment.

Indicted and placed on trial on counts of housebreaking2 and grand larceny,3 appellant insisted that at the time of the offenses he was in the company of friends. Two of them so testified, and appellant's brother corroborated several aspects of his story.4 On the other hand, and additionally to the Government's circumstantial showing, Mrs. Vines, without objection, related her prior identification of appellant at the precinct station, and twice again identified him in the courtroom. The jury convicted on both counts.

Three contentions are presented for our consideration. We find merit in but one,5 which at the outset we distinguish from another which of late we have quite frequently encountered.6 When identified by Mrs. Vines at the precinct station, appellant was unrepresented by counsel, but of this no point is sought to be made, nor could it be. In United States v. Wade7 and Gilbert v. State of California,8 decided after appellant's trial, the Supreme Court held that a suspect must, as a matter of Sixth Amendment right, be afforded the assistance of counsel at a pretrial lineup.9 But the Court announced contemporaneously in Stovall v. Denno10 that this constitutional rule is to operate prospectively.11 Beyond this, we have declined to apply, in the exercise of our supervisory authority in this jurisdiction, the Wade-Gilbert principle retroactively.12

What appellant does urge is that the circumstances surrounding his station house confrontation with Mrs. Vines induced an identification which was not the product of the witness' objective judgment, and that the Government's capitalization on it resulted in a deprivation of due process. Stovall confirmed the proposition that a confrontation with a view to identifying a suspect may be "so unnecessarily suggestive and conducive to irreparable mistaken identification that he [is] denied due process of law."13 And this issue an accused may litigate despite non-retroactivity of the Wade-Gilbert requirement of counsel at such confrontations.14

The record before us reflects conditions auguring the possibility that the limits set by the demands of due process were exceeded here. "A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification."15 Moreover, "[t]he practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned."16 From what appears here, there was no lineup, in the commonly accepted sense of the word; rather, the exhibition which may have engendered Mrs. Vines' positive identification was of appellant alone.17 We have declared that "[t]he presentation of only one suspect in the custody of the police, raises problems of suggestibility that bring us to the threshold of an issue of fairness."18 To this may be added the fact that minutes before the confrontation the identifying witness had recognized the automobile which the culprits had employed in their criminality.

On the other hand, "a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it,"19 and the record on this appeal does not disclose some, and conceivably many, of the circumstances which may bear importantly on the due process issue. This undoubtedly is a consequence of the fact that the issue was not raised in the District Court.20 That the question was not broached there is quite understandable since the principle giving rise to it appears to have enjoyed its first successful invocation in federal litigation only after appellant's trial had been concluded,21 and in any event its added stature was not bestowed by Stovall until this appeal was pending.22 But lacking the development that only adversary treatment can produce, the record in this connection all too frequently maintains silence in the face of crying needs for additional enlightenment.

We are uninformed as to the characteristics which by Mrs. Vines' observation served to distinguish appellant from other persons.23 We know relatively little as to the similarities and the differences, respecting appellant and those in the room with him, in age, height, weight, dress and other physical features.24 We are not clear as to whether the contested identification was made before or after appellant was asked to stand.25 Nor can we tell whether, all circumstances considered, a lineup was feasible.26 These are but illustrative of relevant details we cannot fathom from what is before us.

Since the inadequacy of the record precludes our decision of the issue, we remand the case to the District Court27 for an evaluation of appellant's claim. The court, in application of the standard enunciated in Stovall, will determine whether the method of appellant's identification was "so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law."28 If no due process violation is found, the conviction must stand. If, on the other hand, such a violation is found, the dispositional principles delineated in Wade29 and Gilbert30 should be applied analogously. In sum, the District Court will award appellant a new trial unless it is "able to declare a belief that" Mrs. Vines' testimony as to her identification of appellant at the precinct station "was harmless beyond a reasonable doubt."31 In the event of another trial, any and all testimony as to Mrs. Vines' identification at the station will be excluded,32 and the Government will be afforded "the opportunity to establish by clear and convincing evidence that" her in-court identification was "based upon observations of the suspect other than the [station house] identification."33 And if, but only if, that burden is carried may Mrs. Vines again undertake upon a retrial an identification of appellant in the courtroom.

Remanded for further proceedings.

I believe that due process is violated whenever the police unjustifiably fail to hold a lineup. Since mistaken identifications are probably the greatest cause of erroneous convictions,1 we must require the fairest identification procedures available under the circumstances. With the stakes so high, due process does not permit second best.

I think this is what the Supreme Court meant in Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967) and United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). In Stovall it held that a defendant was entitled to show that the confrontation in his case "was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law." 388 U.S. at 301-302, 87 S. Ct. at 1972 (emphasis supplied). The Court went on to say that "The practice of showing suspects singly to persons for the purpose of identification, and not as a part of a lineup, has been widely condemned." It affirmed defendant's conviction only because the record revealed that "the showing of Stovall to [the eyewitness-victim] in an immediate hospital confrontation was imperative." Id. at 302, 87 S. Ct. at 1972 (emphasis supplied).

The clear thrust of Stovall is that, without justifying circumstances, a one-man showup is too unnecessarily suggestive to satisfy due process. A lineup must be conducted unless it will necessitate a delay which is likely to make identification impossible or less reliable.2

In Wade the Court pointed out that cross-examination at trial "cannot be viewed as an absolute assurance of accuracy and reliability [in courtroom identifications]. Thus, in the present context, where so many variables and pitfalls exist, the first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself." 388 U.S. at 235, 87 S.Ct. at 1936. In other words, we must insist on the fairest feasible identification procedures and not rely on the courts' ability to gauge the psychological effects of more suggestive procedures.

In light of Stovall and Wade, I must reject the majority's assertion that I am making a new "constitutional pronouncement."3 I would remand to the District Court to give the Government an opportunity to show that the failure to hold a lineup was justified. Due process requires this showing.