Wise v. Murphy , 1971 D.C. App. LEXIS 284 ( 1971 )

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 file 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 n.10. If this power is viewed as “All Writs” power under Section 1651 (a), supra, the same inquiry, in language of that Act, is whether the process issues “in aid of” jurisdiction to issue arrest warrants. Clearly, the challenged process was an exercise of jurisdiction to determine whether specific statutory power should or should not be utilized.¹¹ Thus, the summonses and orders conformed to accepted concepts of delegated judicial power and do not reflect usurpation of authority not duly conferred by law. See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1967), revealing examples of court-ordered eavesdropping in aid of judicial power without reference to a specific authorizing statute.¹²

B. The Jurisdiction of This Court

In their supplemental memoranda, the parties take the view that this court has All Writs jurisdiction to entertain a re-. quest for and issue a writ in the nature of prohibition. They rely on language in Morrow v. District of Columbia, supra at 165, 417 F.2d at 733. We posed the question since the alleged offense is rape and jurisdiction over that felony is vested in the United States District Court for the District of Columbia. See note 12 supra. We would have no potential jurisdiction as required under the All Writs Act, 28 U.S.C. § 1651 (1964).¹³ The Government observed at oral argument that D.C.Code 1967, § 11-963, confers jurisdiction on the “Court of General Sessions” to hold preliminary hearings and commit or admit to bail persons charged on complaint with a felony, and that this court has supervisory authority over that court. Compare, however, D.C.Code 1967, § 11-981 relating to the power of “each judge” of that court to issue arrest warrants.

We now think it is unnecessary for us to resolve that question for in the determination of our jurisdiction it becomes apparent that the orders of the magistrate are final and thus appealable under D.C. Code 1967, § 11-741 (a) (1). What is finally decided by the challenged orders is the question whether the subject will be required to stand in a lineup. This view of finality of decision is consistent with that expressed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). We observe that it makes no difference on the question of finality that the issue of admissibility of any lineup identification may subsequently be litigated. The question of admissibility of evidence in a criminal trial is a separate issue from the one with which we are now concerned. The instant orders are analogous to pretrial bail orders in criminal cases. Such bail orders are final as they relate to pretrial liberty and the Supreme Court has so held in rejecting the use of extraordinary writ to obtain review of such orders. Stack v. Boyle, 342 U.S. 1, 6-7, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

In light of our conclusion, infra, that a lineup order prior to formal arrest can be squared with the Fourth Amendment under appropriate circumstances, the right to review by direct appeal of such orders becomes an integral part of the procedure. We view the opportunity for immediate and expedited direct review of such orders as essential to the balancing, on the scale of reasonableness, of the interests of law enforcement and the right to individual liberty. In this unique area of executive-judicial law enforcement activity it is necessary to have a means whereby the reasonableness for the proposed intrusion on liberty can be reviewed before the fact. We are prepared to supply this ingredient by an expedited appeal and disposition of such cases. See Rule 4(111) of the General Rules of this court effective February 1, 1971. Accordingly, we deny issuance of the requested writs but treat the materials before us as appeals from final orders taken pursuant to D.C.Code 1967, § ll-741(a) (1).

II

The Contemplated Lineup Is a Reasonable Intrusion on Liberty and Hence is Constitutionally Permitted

Petitioners, relying on a traditional approach taken in most search and seizure cases, take the position that the contemplated lineups amount to an unreasonable deprivation of liberty and would violate the Fourth Amendment. This position is bottomed on the idea that no such intrusion can be lawful unless there is “probable cause”. By that term they mean probable cause for formal arrest—that is, probable cause to believe that a crime was committed and that the person suspected probably committed it.¹⁴ Concededly, in that sense we are not here dealing with the usual probable cause arrest case. While the former ingredient is obviously present, the element of “probable” identification sufficient for formal arrest is lacking in this instance. The parties so agree and we so hold.

It, therefore, appears appropriate first to inquire whether under the Fourth Amendment it is possible to view a lawful deprivation of personal liberty by governmental action as anything but a formal arrest. Obviously, restrictions by the state on personal liberty occur often without thought to placing formal criminal charges. One may reasonably be stopped and asked questions by the police or requested to furnish identification.¹⁵ Indeed, the Supreme Court has sanctioned momentary on-street detention under the Fourth Amendment even though it does not “eventuate in a trip to the station house and prosecution for crime”, Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), and even though traditional probable cause for formal arrest was lacking. Such detention was accurately and legally characterized as a “seizure” of the person within the protective scope of the Fourth Amendment.¹⁶ Id. at 16-20, 88 S.Ct. 1868. Surely then, the orders here reviewed are not constitutionally invalid merely because they do not entail a formal arrest based on traditional ingredients of that type of probable cause.

A significant case relevant to this issue was decided last term by the United States Supreme Court, Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969). The New York court held that the state possessed authority consistent with the Fourth Amendment to conduct brief custodial interrogation of “ ‘those persons reasonably suspected of possessing knowledge of the crime under investigation in circumstances involving crimes presenting a high degree of public concern affecting the public safety.’ ” Id. at 104, 90 S.Ct. at 293 citing from People v. Morales, 22 N.Y.2d 55, 65, 290 N.Y.S.2d 898, 907, 238 N.E.2d 307, 314 (1968). The Supreme Court, faced with an argument that the detention was forbidden when it was ‘for custodial questioning on less than probable cause for a traditional arrest * * * ”, Morales v. New York, supra at 104, 90 S.Ct. at 293 (emphasis supplied), chose not to decide the question absent a record necessarily presenting the issue for decision. The Court in recognizing that this question went beyond the holding in Terry v. Ohio, supra, remanded for an evidentiary hearing. In so doing it is worthy of note that the Court suggested three circumstances in which the interrogation might be considered proper— (1) “that there was probable cause for an arrest”; (2) “that Morales’ confrontation with the police was voluntarily undertaken by him”; and, most significant for the instant case, (3) “that the confessions were not the product of illegal detention.” 396 U.S. at 105, 90 S.Ct. at 293. At the very least this would seem to suggest that there is some room under the Fourth Amendment for legal detention on facts short of probable cause for a “traditional arrest”. See also Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394 (1969).

We recognize, however, that what is contemplated here is a seizure of the person. To be sure it is a more severe seizure than the momentary one of Terry, but obviously of lesser magnitude than a formal arrest.

Counsel for petitioners view the severity of such lineup detention as including the risk of possible misidentification and subsequent criminal charges. While it may be realistic to do so, those possibilities do not elevate such a proposed lineup detention to the level of formal arrest. Moreover, properly conducted identification procedures have been viewed by the Supreme Court as reducing the possibility of misidentification to an accepted level such that the question is appropriately one for the fact-finder at trial. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967 (1967). See also note 16 supra. Indeed, it is possible that under proper circumstances a lineup may not even be a “critical stage” of the accusatory process requiring presence of counsel. United States v. Wade, supra 388 U.S. at 239, 87 S.Ct. 1926.

Of course, as reflected in Terry v. Ohio, supra, we are bound to test this intrusion against established Fourth Amendment standards. In so doing, it is necessary to apply the constitutional mandate of reasonableness. Camara v. Municipal Court, 387 U.S. 523, 535, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

“In order to assess the reasonableness of [the contemplated seizure] as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to [seize] against the invasion which the [seizure] entails.’ ” Terry v. Ohio, supra, 392 U.S. at 20-21, 88 S.Ct. at 1879 quoting from Camara v. Municipal Court, supra 387 U.S. at 534-535, 536-537, 87 S.Ct. 1727. Recognizing the seriousness of the intrusion, we take note of the governmental interest on the other end of the scales.

The police are confronted with a woman who reports that she was forced into an alley in a high-crime area and raped at knife point at about 10:40 p. m. Surely, there exists a compelling interest for the state to apprehend the offender — not only to punish him but also to improve a desperate situation regarding urban safety and lawlessness. To this extent the Government has not only a right, but indeed a duty, to employ every reasonable law enforcement device to maintain the integrity of the state in its role of insuring an ordered and peaceful community. Cf. Terry v. Ohio, supra, 392 U.S. at 23-24, 88 S.Ct. 1868, recognizing safety of the police as a factor in that decision. In a similar context, this governmental interest was recognized in Adams v. United States, supra, and in United States v. Greene, supra.

In connection with these observations, it is well to recognize and discuss the alternatives left to the police if they are denied the help of the neutral and detached judicial branch in this type of case. Certainly, the police should not be forced into making an unlawful formal arrest. Any evidence obtained incident thereto would be suppressed. This includes some identification evidence, e. g., Davis v. Mississippi, supra; and Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1958), both relating to fingerprints. Cf. United States v. Greely, 138 U.S.App.D.C. 161, 425 F.2d 592 (1970), relating to a trial court ruling suppressing identification testimony based on an illegal arrest.

If the police are to know whether the right man has been singled out, or whether they must continue to look for him, they will be forced to arrange some other confrontation. Such possibilities come to mind as arranging for the woman to go to the subject’s home, place of employment, or other location that he frequents. In addition, it will not do for the police to arrange a confrontation by requesting the subject to appear for some informal “hearing” in the United States Attorney’s office,¹⁷ or the police station.¹⁸ Nor could a courtroom confrontation be utilized.¹⁹ Aside from the obvious suggestibility inherent in such procedures, it is apparent that the subject and his counsel are deprived of meaningful cross-examination as to the verity of any courtroom identification.²⁰

What, thus, becomes obvious is that the administration of criminal justice can and ought to devise a procedure which reasonably makes persons “available for line-up identification in respect of other crimes for which there is less than probable cause to [make a formal] arrest.” Adams v. United States, 130 U.S.App.D.C. 203, 208, 399 F.2d 574, 579 (1968).²¹ Indeed, in its interim order in Shaykar v. Curran, No. 24,826 (D.C.Cir., filed November 12, 1970; interim unpublished order dated January 25, 1971), relating to a government motion to compel prearrest fingerprinting and furnishing of hair sample, a division of that court composed of Chief Judge Bazelon and Circuit Judges Leventhal and MacKinnon recently recognized “the need of the Government for expedition and efficiency in its criminal investigation processes” as it relates to identification procedures short of formal arrest. Though in its order dated January 25, 1971, set forth in the margin,²² that court does not view it as precedent, it is obvious that the court recognizes both the need to fashion such procedures and the need to acknowledge constitutional room for them. Surely, Miss Shaykar would not be forced by that order to submit to such limited interference with liberty unless that court deemed the basis therefor to be reasonable and therefore constitutional. If under that court’s order Miss Shaykar is not identified, the necessity to decide the issue will have been, by the terms of the order, evaded. It is inescapable, however, that the court, though wishing not to be viewed as doing so, has in reality resolved the constitutionality of the invasion on liberty there directed. It cannot and should not be otherwise. A court or magistrate does not issue a warrant and the police thereafter execute it — all with the understanding that the same issuing authority may later declare what was earlier authorized to be unreasonable and unconstitutional. This is why we decide the constitutional issue rather than “avoid” it as the main dissent would have us do. Clearly, present resolution of that issue “is essential to a proper disposition of [the] case”. Fickling, J., dissenting, note 11 infra. See D.C.Code 1967, § 17-306. This is particularly true where the question is novel and the public need so great. This would, in reality, seem to be the view of the present six members of the circuit court who participated in the Shaykar order; United States v. Greene, supra; and Adams v. United States, supra, as well as Circuit Judge (now Chief Justice) Burger in his concurring opinion in Adams, where he expressed concern for “arbitrary interference with liberty.” Id. 130 U.S.App.D.C. at 210, 399 F.2d at 581.

The issue is hardly an “abstract” one, as Judge Gallagher views it, when it is necessary for us to decide between a cryptic holding that the facts presented are not enough to warrant the intrusion or whether no set of facts short of formal probable cause can pass constitutional muster. To simply hold the present facts insufficient implicitly says that some set of facts would be sufficient for the proposed lineup.

On balance, and realistically viewing the impact of a court-ordered lineup of the kind here contemplated on liberty,²³ we conclude, under the test expressed in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727 (1967), that the public interest can validly require this intrusion.

Under proper circumstances, and against a backdrop of required specificity,²⁴ such a device as court-ordered lineups can prove to be reasonably related to governmental and private rights, and thus a constitutional balance regarding both.²⁵ Grave reservations exist, however, as to whether this type of court-ordered lineup, not connected with a formal arrest, may be used constitutionally in other than serious felonies involving grave personal injuries or threats of the same. The governmental interest, though serious, is not of the same magnitude in commercial crimes involving property or money such as forgery or false pretenses or other less serious offenses. While the “sounder course” is to view all intrusions “in light of all exigencies of the case”, Terry v. Ohio, 392 U.S. 1, 17 n. 15, 88 S. Ct. 1868, 1878 (1968), it would seem that some offenses, not involving serious personal injury or danger, weigh less as a part in the “central element in the analysis of reasonableness.” Id. In such cases it is highly likely that the governmental interests in law enforcement cannot outweigh the right of liberty, or freedom from being ordered into even the most antiseptic lineup, under circumstances short of traditional probable cause for formal arrest. Of course, each case must be considered on its own facts.

We are not unmindful that the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), while suggesting and thus appearing to sanction a similar procedure to secure fingerprints of unarrestable suspects, observed that such procedure is a more scientific method of identification than eyewitness identification. Id. at 727-728, 89 S.Ct. 1394. In our judgment, that opinion tends to support our conclusion that court-ordered identification procedure for unarrestable suspects can be constitutional; certainly it does not indicate any intended prohibition against the identification procedure to be used in this case. Indeed, eyewitness identification, though less scientific, is not always less accurate.²⁶ Moreover, the Supreme Court appeared to have been more concerned with unfair, suggestive and thus the least accurate eyewitness identification when it discussed the difference between the human and the scientific method. Indeed, it is significant that the Court referred to this difference in the context of avoiding forbidden interrogation, searches, harassment, and “improper line-up and the ‘third degree.’ ” Id. at 727, 89 S.Ct. at 1398. None of these prohibited events are contemplated or will be permitted under the proposed procedure. We, therefore, do not believe that Davis v. Mississippi, supra, can be read as casting constitutional doubt on this type of court-ordered lineup where Fifth and Sixth Amendment rights are to be fully protected.

We turn then to the question whether on the facts as presented the requisite specificity as to articulable facts was present in order to permit meaningful evaluation of the reasonableness of the proposed lineup by the neutral and detached judicial officer. Terry v. Ohio, supra 392 U.S. at 21-22 nn. 19 & 20, 88 S.Ct. 1868 and related text. That, of course, is the constitutional touchstone of such an order.

The record reveals a complaint of rape at knife point and a statement by the victim that one subject’s photograph among pictures of “possible suspects” reveals “facial features * * * similar to those of the man who assaulted her. * * * ” The victim also said that to be positive she would have to see the suspect in person.

We are not unmindful that often this is all the police are told by a complainant²⁷ and we do not wish to imply that more specific or dogmatic identification from the victim is expected or constitutionally required. Surely, the police should not be encouraged to demand more positive identification than the victim is honestly able to furnish. But such tentative and hesitant identification must be taken in complete context to know whether a lineup may reasonably be required.

For instance, the magistrate was not informed as to the victim’s opportunity to observe the subject before and during the rape. More significantly, all that is revealed is that the subject’s photograph was selected from a group of pictures of possible suspects. The judicial officer was, thus, unable to evaluate the understandably tentative and hesitating photographic identification against facts known by the police as to why they concluded these photographs were of possible suspects.

Under the limited facts presented the proposed lineup “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than [possible] inarticulate hunches * Terry v. Ohio, supra, 392 U.S. at 22, 88 S. Ct. at 1880, and cases there relied upon. We think it is necessary for the police to specify how they arrived at their conclusion that the individuals in the group of photographs were possible suspects. It may be that they were previous sex offenders with similar modus operandi, or that they had opportunity to commit the offense because of residence, employment, or known presence generally in the vicinity of the offense. It may be that those persons were previous acquaintances of the victim. In some cases, possible suspects may be singled out because of similar characteristics of description. These or a combination of these and other factors may have led the police to their conclusions regarding this group of suspects. There is every reason, with the exception of a case involving a reliable confidential informant, for the police to disclose all factors they possess shedding light on the likelihood that the tentative identification is the correct one. As to the missing elements, the judicial officer simply agreed with and gave judicial sanction to the conclusion of the police that the selection of this subject was deductively accurate enough to warrant ordering the lineup. “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.” Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 229, 13 L.Ed.2d 142 (1964).

With a sufficiently detailed recitation of articulable facts the judicial officer will be able to perform his all-important function of evaluating the reasonableness of the proposed intrusion against its impact, though limited to the extent possible, on personal liberty. In this way, the vice of old general warrants and writs of assistance²⁸ is avoided and we remain faithful to our fundamental commitment against use of dragnet technique.

Accordingly, we reverse the ordered lineup in case No. 5456 (John Doe) without prejudice to the Government’s promptly submitting more specific information as required in this opinion. In case No. 4480 Original (Wise) we remand, per the government’s request, to permit dismissal of the order for the lineup unless the Government should conclude to use the lineup before accomplishing formal arrest.

So ordered.

1 . D.C.Code 1967, § 11-705 (b) (2) & (3) (Supp. in, 1970).

2 . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967),; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

3 . Under Section 111 of the District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub.L.No.91-358, 84 S,tat. 473, approved July 29, 1970, the Court of General Sessions lias ceased to exist and the Superior Court of the District of Columbia, a court of general jurisdiction, has replaced it. However, under that Act, complete transfer of jurisdiction to the Superior Court will not occur until August 1, 1972. The offense of rape, with which these petitions deal, remains for the time within the jurisdiction of the United States District Court and as to such offense the respondent judges remain in the same legal capacity.

4 .See note 11 infra.

5 . Davis v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and Shaykar v. Curran, No. 24,826 (D.C. Cir., filed November 12, 1970, interim unpublished order dated January 25, 1971), relating to a government motion to compel prearrest fingerprinting and fur-nisliing of hair sample. See note 22 infra and related text.

6 . Necessarily included would be the fingerprinting process. See Davis v. Mississippi, supra note 5.

7 . Rule 4(a) was applicable to judges of the District of Columbia Court of General Sessions when taking action governed by that rule. See Fed.R.Crim.P. 1 & 54 (a) (2) ; Notes of Advisory Comm. on Rules, 18 U.S.C. (Appendix), Rule 54, Note to Subdivision (a) (2), paras. 1 & 3 (1964). Cf. In re Gates, D.C.App., 248 A.2d 671, 675 (1968). Now see Section 111 of the District of Columbia Court Reform and Criminal Procedure Act of 1970, (§§ 11-923(c) (2) & 11-946), Pub. L.No.91-358, approved July 29, 1970, 84 Stat. 486, 487.

8 . Fed.R.Crim.P. 2 provides:

These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.

9 . 18 U.S.C. § 3771 (1964) authorizes adoption of “rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict * * (Emphasis supplied.)

10 . Prior to en banc argument in these cases, we, sua sponte, requested supplemental memoranda on this point, our jurisdiction, and other issues not earlier dealt with in the pleadings. (See note 12 infra.)

11 . It is unimportant that, if identified at the lineup, the police may arrest the subject without first obtaining a warrant. See D.C.Code 1967, § 4-136 and Carroll v. Parry, 48 App.D.C. 453 (1919). The court had jurisdiction, and indeed a duty, to conduct proceedings under Rule 5, Fed.R.Crim.P., including, a determination as to “probable cause to believe that an offense has been committed and that the defendant has committed it” — the same determination which must be made before issuance of an arrest warrant. Of course, the. police may seek an arrest warrant after the lineup identification if they deem that to be appropriate.

12 . We note, before passing on to the issue of our jurisdiction, a question posed by our earlier order requesting supplemental memoranda. See note 10 supra. In that order, we prompted the parties to discuss whether the relief sought by the United States was not available through district court process in aid of its grand jury proceedings. Both appear to have misapprehended the customary nature of those proceedings and the power of the grand jury. They take the view that the contemplated lineup would have to take place before a convened grand jury and petitioners protest that such proceedings are secret and counsel for the subject would be excluded. See Fed.R.Crim.P. 6 (d), & (e). The Government views the procedure as lawful but impracticable.

We see no reason why, as in all other grand jury inquiries into asserted crime, that body could not have this type of summons and order issued and enforced by the district court. It is not necessary that the lineup take place before the grand jury any more than that body must witness a fingerprint, handwriting, or laboratory analysis. All that is required, if the grand jury wants further evidence on identification, is that the function be performed elsewhere in a lawful manner and that a witness appear before the grand jury to inform it of the results and thus the availability of testimony on the point for trial. See United States v. Doe, 405 F.2d 436 (2d Cir.1968).

Of course, such use of grand jury process would have to be consistent with the Fourth Amendment standards as set forth in Part II of this opinion.

13 .Although we and the trial court would have potential jurisdiction if the ultimate prosecutive decision results in a misdemeanor charge.

14 . This is the standard under Fed.R.Crim. P. 4(a) for issuance of an arrest or summons and for holding an arrested person to answer in the district court under Fed.R.Crim.P. 5(c).

15 . United States v. Lee, D.C.App., 271 A.2d 566 (1970).

16 . It is recognized that the Terry decision expressly left undecided the propriety of “investigative ‘seizure [s]’ upon less than probable cause for purposes of ‘detention’ and/or interrogation.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 (1968). We are not here concerned with such a seizure for detention or interrogative purposes. Handled properly under United States v. Wade, supra note 2, and Stovall v. Denno, supra note 2, the purpose of lineup detention expressly has been held proper. See also Davis v. Mississippi, supra note 5, 394 U.S. at 729, 89 S.Ct. 1394 and Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).

17 . United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193 (1970).

18 . Williams v. United States, 133 U.S.App.D.C. 185, 409 F.2d 471 (1969); Cunningham v. United States, 133 U.S.App.D.C. 133, 409 F.2d 168 (1969).

19 . Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176 (1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968).

20 . United States v. Wade, 388 U.S. 218, 236, 87 S.Ct. 1926 (1967).

21 . It is significant that in this part of the decision in the Adams case the United States Court of Appeals for the District of Columbia Circuit obviously also had in mind a defendant who was released by the magistrate under the Bail Reform Act of 1966, 18 U.S.C. § 3146 et seq. In the case of a bailed defendant, as in this case, the contemplated court-ordered lineup entails brief detention of the person then at liberty. Although the opinion of the court did not discuss the constitutionality of such limited detention absent grounds for formal arrest, it is certain that the court contemplated persons at liberty being ordered into a lineup on less grounds for formal arrest. It would seem that if constitutional doubts regarding such recommended procedure existed the suggestion would not have been made. See also United States v. Greene, 139 U.S.App.D.C. 9, 429 F.2d 193, 197 (1970), embodying a similar recommendation.

22 . No. 24,826 January 25, 1971

Cleo Kyin-oo Shaykar, Petitioner

v.

Honorable Edward M. Curran, Respondent Before: Bazelon, Chief Judge; Leven - thal and MacKinnon, Circuit Judges, in Chambers.

ORDER

This cause came on for consideration on petitioner’s petition for a writ of prohibition and for immediate consideration thereof and was argued by counsel.

Petitioner raises important and difficult questions of interpretation and application of the Fourth Amendment. See Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In order to balance the need of this Court for more time to consider these novel questions fully with the need of the Government for expedition and efficiency in its criminal investigation processes, it is

ORDERED by the Court that the stay of the District Court’s order is continued in effect, pending further order of this Court, subject to the following conditions:

First, Miss Shaykar shall report to the district court for the taking of fingerprints, palm-prints, and hair samples within 10 days from the entry of this order. The strictures on length and conditions of the detention designed by the district court must be rigorously observed; particularly, petitioner is to be detained no longer than four hours, and is not obligated to submit to any interrogation or to make any statement. Petitioner may be accompanied by her lawyer during this session; an Assistant U. S. Attorney may also be present. If petitioner’s counsel so requests, a Court Reporter shall be present at the session; he shall record all statements regarding the proceeding, including any objections by counsel to procedures used.

Second, the Government may subject the evidence so taken, as well as similar evidence already in its possession, to any scientific tests it considers essential to the investigative effort. The Government shall make adequate provision for petitioner, her counsel and experts (a) to be advised in advance of the nature of the tests proposed by the Government; (b) to have opportunity in advance to make comments and suggestions to the Government testers for alternative or additional procedures. This shall take place in the form of a conference in which the experts can meaningfully exchange information and views, a conference that may be attended by counsel and by an Assistant U. S. Attorney; the conference shall if either counsel so requests be preserved for later judicial consideration by either reporter’s notes or tape recording. If petitioner so requests and this is not unfeasible, her experts shall be present at the tests.

Third, the protection afforded to Petitioner by the order of the district court regarding return of an inventory of evidence taken within 45 days of its taking, and destruction of that evidence if probable cause to arrest is not found by the time of sueli return, is continued in effect.

Fourth, any evidence growing out of these samples and tests may be included in the evidence submitted to a magistrate for a determination that there is probable cause (a) to issue a warrant for petitioner’s arrest, and/or (b) to hold petitioner to answer, see Rule 5 Federal Rules of Criminal Procedure. This condition in no way binds this Court to a finding that such evidence may constitutionally be used for either purpose. Petitioner may apply to this Court for relief from wrongful arrest and detention; at such time, this Court will consider whether the evidence obtained by Petitioner’s compliance with this Order can lawfully be used to sustain petitioner’s arrest and detention.

Fifth, neither the actual samples obtained pursuant to this Order, nor evidence from tests performed thereon, shall be submitted to a grand jury for any purpose pending further order of the court. The Government may apply to this Court for relief from this condition; at such time, the Court will consider whether the evidence may properly be submitted. See Smith v. Katzenbach, 122 U.S.App.D.C. 113, 119, 351 F.2d 810, 816.

Since Petitioner’s interest extends to the use as well as the taking of her prints and hair samples; the questions raised by the Petition for Writ of Prohibition remain alive for determination by this Court. If the evidence taken is destroyed, counsel for the Government will promptly file in this court a suggestion of mootness. Meanwhile counsel for both Petitioner and the Government shall undertake to be ready to file briefs promptly in the event the ease is not thus mooted and either petitioner or the Government make application to this court to modify or vacate this order. This order is not to be taken as a precedent; it is intended as a means of presenting the issues in this case to the Court.

Chief Judge Bazelon concurs in the foregoing order, but would provide as part of the second condition of the stay that at the request of Petitioner, her experts, lawyer and a court reporter shall be present at the testing session.

Per Curiam

23 . Those interests are well discussed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), and Camara v. Municipal Court. 387 U.S. 523, 87 S.Ct. 1727 (1967).

24 . “ * * * And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880.

25 . The desirability and reasonableness of such lineups involving already arrested suspects is a well established fact. Such an innovative interlacing of executive and judicial functions was begun as a result of the suggestion in Adams v. United States, 130 U.S.App.D.C. 203, 207-208, 399 F.2d 574, 578-579 (1968). So-called “Adams” lineups have proved ■ a useful tool in improving the effectiveness of law enforcement both as to convicting the guilty and release of the innocent. See also United States v. Stevenson, U. S.App.D.C. (No. 23,922, decided December 3, 1970).

26 .The “unforgettable face” in eyewitness identification is well recognized. Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284 (1969).

27 . E. g., United States v. Greene, 139 U.S. App.D.C. 9, 429 F.2d 193 (1970).

28 . Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (Douglas, J., dissenting) ; Henry v. United States, 361 U.S. 98, 100-101, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).