Wise v. Murphy

• Citation: 275 A.2d 205
• Decision Date: 16 March 1971
• Docket Number: No. 5456.,No. 4480 Original.,4480 Original.,5456.
• Parties: Clarence WISE, Jr., Petitioner, v. The Honorable Tim MURPHY and The Honorable Alfred Burka, Respondents. John DOE, Petitioner, v. The Honorable Tim MURPHY, Respondent.

275 A.2d 205

Clarence WISE, Jr., Petitioner, v. The Honorable Tim MURPHY and The Honorable Alfred Burka, Respondents.

John DOE, Petitioner, v. The Honorable Tim MURPHY, Respondent.

No. 4480 Original.

No. 5456.

District of Columbia Court of Appeals.

Argued en banc October 21, 1970.

Decided March 16, 1971.

Norman Lefstein, Washington, D. C., with whom Matthew Zwerling, Washington, D. C., was on the petitions, for petitioners.

Earl J. Silbert, Atty., Dept. of Justice at the time of argument, with whom Thomas A. Flannery, U. S. Atty., John A. Terry and John O'B. Clarke, Jr., Asst. U. S. Attys., and Frederick D. Hess and Carl S. Rauh, Attys., Dept. of Justice, were on the opposition to petitioners' memorandum of law, for respondents.

Warren R. King, Asst. U. S. Atty., also filed an appearance for respondent in No. 5456.

Before HOOD, Chief Judge, and KELLY, FICKLING, KERN, GALLAGHER and NEBEKER, Associate Judges, sitting en banc.^*

NEBEKER, Associate Judge:

These consolidated cases are before the court on petitions for extraordinary relief in the nature of prohibition. Because of the importance of the constitutional issue presented, we, sua sponte, ordered en banc consideration.¹ That constitutional question is whether, absent facts warranting formal arrest for rape, a person identified from photographs as the possible perpetrator may be required by court order and under other constitutional safeguards² to stand in a lineup to be viewed by the victim.

In both cases, the District of Columbia Court of General Sessions judge, sitting as a magistrate,³ has issued a summons and an order requiring the subjects to appear before him, with counsel, or for the appointment of counsel, and to set a time and date for the lineup. The summonses also informed the subjects of the date and time of the offense. The affidavits submitted by the Government were furnished to the subjects and their counsel.

Under the contemplated lineups, it is clear that if identified, the person will be arrested and dealt with according to law.⁴ If not identified, protective measures have been ordered insulating the event from future public and official notice.

It is apparent from the transcript in the John Doe case that discovery of far greater magnitude than ordinarily required will be given before the contemplated lineup. Appointed counsel requested, and the Assistant United States Attorney agreed, that he be furnished with previous statements of description by the victims and any other witnesses to the offense, and that he be permitted to interview such persons before the lineups. All statements made at the lineups will be recorded with a view to permitting verbal reconstruction and eliminating the possibility that counsel may also have to be a witness at any future proceedings. At oral argument before this court, the United States also agreed that, as usual in lineups in the District of Columbia, photographs of the lineups will be made, and the names and addresses of all participants will be kept for possible visual reconstruction of the lineups.

In addition, when questioned as to the nature of the lineup and potential future harm in the event of negative results, the United States, at oral argument, acknowledged that it could arrange a lineup without using convicted or suspected prisoners together with the necessary security safeguards and devices. It also agreed that nothing resulting from such lineup need be used officially in any other way. Thus, the lineup need not be photographed for use in connection with any other proceeding concerning others standing in it. The subjects need not be commingled with others accused or suspected of crime. The total time for assembly and viewing need hardly be more than a few minutes. In short, the process is to be as antiseptic as possible.

We are first confronted with jurisdictional questions relating to the power of the judicial officer, in the first instance to issue such an order, and to our jurisdiction to review it. For reasons to be discussed, we resolve those questions in favor of the contemplated lineup and our review of those orders prior to lineup.

Necessarily then, we conclude that court-ordered lineups predicated on reasonable grounds short of a basis for formal arrest can be squared with the Fourth Amendment — the test being whether the particular intrusion is reasonable when based on all the known facts and legitimate law enforcement interests. Of course, balance of the competing interests must be most careful.

In No. 4480 Original (Wise), the United States, on reflection, views the facts as sufficient to warrant formal arrest. We are thus told the course earlier chosen has been abandoned and a request is made to remand the case for dismissal of the lineup order. This we do, but we further conclude that even in cases warranting formal arrest the. United States should be permitted in cases it deems appropriate to request this kind of lineup or other identification procedure⁵ from the magistrate as an alternative to formal arrest. In this way the traditional division of functions between the executive and judicial branches can be preserved in this innovative procedure.

In No. 5456 (John Doe) we conclude, for the reasons to be discussed, there is insufficient particularity and specificity of known facts reflected in the material submitted to warrant under Fourth Amendment standards the kind of intrusion contemplated. Because the device of court-ordered lineups, short of grounds for formal arrest, is novel, our disposition will permit the Government to resubmit the matter to the magistrate with a more specific and articulated basis for ordering participation in the lineup.

Our decision then will require treatment of the jurisdictional questions in Part I of this opinion and the constitutional issue as it relates to the facts in the case of John Doe in Part II. The facts respecting No. 4480 Original (Wise) will not be discussed in light of the disposition outlined, and further factual references will be to the "John Doe" case only.

I

A. The Judicial Power of the Magistrate to Issue the Challenged Process

Assuming the power of this court to determine jurisdiction in the first instance, we treat the question whether the magistrate has power under any circumstances to issue process, short of commanding formal arrest, requiring participation in an otherwise proper lineup.⁶ It is clear that by both the Federal Rules of Criminal Procedure⁷ and D.C.Code 1967, § 11-981, judges of the District of Columbia Court of General Sessions may issue warrants for offenses against the United States committed in the District of Columbia. Counsel for petitioners argue that Rule 4(a), Federal Rules of Criminal Procedure, operates to limit such power to issuance of warrants or summonses only when "it appears * * * that there is probable cause to believe that an offense has been committed and that the defendant has committed it * * *." (Emphasis supplied.) The import of this argument assumes that the rule imposes a limitation on the grounds for issuance of that and similar process. We do not view the nature and purpose of those rules as limiting that authority. This is neither the purpose of the rules⁸ nor the purpose of Congress in providing authority for their adoption.⁹ Indeed, an example revealing that the rules do not preclude substantive changes in case law is Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), where, notwithstanding the limitation on the scope of items properly the subject of a search warrant under Rule 41(b), Federal Rules of Criminal Procedure, the Supreme Court appears to contemplate future issuance of a search warrant for previously forbidden items described as "mere evidence."

The United States, on the other hand, argues that authority to issue the challenged summonses and orders derives from inherent power in aid of the authority to issue warrants pursuant to D.C.Code 1967, § 11-981. Cf. Morrow v. District of Columbia, 135 U.S.App.D.C. 160, 166, 417 F.2d 728, 734 (1969), dealing with exercise of inherent authority to order limitation on official use of arrest records. It is also argued that this power emanates from the All Writs Act, 28 U.S.C. § 1651(a) (1964). The United States, in addition, relies on United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193, 197 n. 7 (1970), and Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968). While those cases relate to the constitutional issue presented here they are of little help on the purely jurisdictional point because in both cases that court appears to assume the existence of judicial power to order lineup participation. No derivation of that power was discussed or even questioned.¹⁰ Adams, of course, is an example of the use of that power where grounds for formal arrest are lacking as to other similar offenses.

We conclude there are two predicates upon which power to issue the challenged orders may be based. First, judges of the District of Columbia Court of General Sessions like judges of this court have "judicial power * * * to issue different types of remedies to effectuate [their] conceded jurisdiction over some subject matter [(here the power of those judges to issue warrants pursuant to D.C.Code 1967 § 11-981, against persons accused of crime committed in the District of Columbia)]." See Morrow v. District of Columbia, supra 417 F.2d at 732 n. 10. That power may also be viewed as emanating from the All Writs Act, 28 U.S.C. § 1651(a) (1964). Morrow v. District of Columbia, supra 417 F.2d at 734-735. In either event, it is necessary that a judge of that court act in connection with "subject matter independently within [the court's] jurisdiction" and not in connection with assumed omnificent ancillary jurisdiction concerning a "matter over which, but for a pending matter, it would have no jurisdiction" at all. Morrow v. District of Columbia, supra 417 F.2d at 732-733...