Full opinion text
BROWNING, Circuit Judge: Jesse James Gilbert appeals from his conviction of the armed robbery of four banks in violation of 18 U.S.C.A. § 2113 (a) and (d). I Appellant contends that objects taken from his person at the time of his arrest were erroneously admitted in evidence because the arrest was made without probable cause. Two warrants for appellant’s arrest for bank robbery were outstanding. The validity of these warrants is not questioned. Rather, appellant contends that at the moment of arrest the officers lacked probable cause to believe the person they arrested was appellant. At the hearing on appellant’s motion to suppress, the FBI agent who made the arrest testified as follows. On the night of February 26, 1964, he and three other agents were sent by their superior officer to the corner of Frankford and Levick streets in Philadelphia, Pennsylvania. They had been told that appellant might be in that vicinity. They had read a full description of appellant, and had examined his photograph. They had been told that appellant had been identified while purchasing a hair piece and would probably be wearing it, and that he would probably be wearing dark-rimmed glasses. They had known of the outstanding warrants. They had known that appellant was also charged with shooting and killing a policeman with a .45-caliber weapon, that he was armed with such a weapon, and that he was considered extremely dangerous. Arriving at the designated corner, the agents observed a man in an outdoor phone booth, and approached to identify him. Because there was no light in the phone booth, the man — appellant—“was taken hold of by the arm and pulled outside. Nothing — it was general [sic]. Not a violent gesture.” As appellant emerged from the dark phone booth into the lighted street, the arresting agents saw that he wore a hair piece and dark-rimmed glasses. Appellant was asked to identify himself. He took his wallet from his rear pocket and showed the agents a driver’s license, bearing a false name. The arresting agent took hold of appellant’s left arm. Feeling something hard, he un2iipped appellant’s jacket, and from a “quick-draw” holster removed a loaded .45-caliber automatic with a shell in the chamber, ready to fire. A tattoo mark appellant was known to have was found on his left forearm. Appellant then admitted his identity. The district court concluded there was probable cause to arrest appellant when the arresting agent saw appellant’s hair piece and dark-rimmed glasses. Appellant does not seriously contest this conclusion. However, he contends that the arrest occurred earlier — either when the FBI agents blocked his exit from the phone booth, or when they physically removed him from it — and that at neither instant did the agents have probable cause to believe that he was the man named in the warrants. We think the actions of the agents, prior to the moment they acquired probable cause to arrest, were reasonable, and did not violate appellant’s Fourth Amendment rights. If the agents had simply accosted appellant and asked him to identify himself, no one could question the propriety of their conduct. Cf. Keiningham v. United States, 307 F.2d 632, 633 (D.C. Cir. 1962); Green v. United States, 259 F.2d 180, 181 (D.C. Cir. 1958); La Fave, Arrest 345 (1965). They did more than that. They laid hands upon appellant, and constrained his physical movements. The question is whether this physical restraint, supported by less than probable cause to believe the person affected was the one named in the warrant, violated the Fourth Amendment. Relying primarily upon Rios v. United States, 364 U.S. 253, 262, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960), we have recently held that “there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations”; and that the test of the validity of such a brief detention is whether “from the totality of the circumstances” it appears that the detention was based upon “reasonable grounds” and “was not arbitrary or harassing.” Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). Supporting authority from this court includes Davis v. People of State of California, 341 F.2d 982, 986 (9th Cir. 1965) ; Lipton v. United States, 348 F.2d 591, 593 (9th Cir. 1965); Busby v. United States, 296 F.2d 328, 331 (9th Cir. 1961) . Substantial considerations favor the recognition of a carefully limited right of brief police detention on less than probable cause to believe the person detained has committed a felony. If even slight interference with freedom of personal movement is invariably conditioned upon a showing of prior probable cause, then either the standard of probable cause will be lowered, and with it the protection against formal arrests and substantial interferences with liberty; or police activity which appears perfectly proper when measured against a standard of reasonableness will nonetheless be forbidden. American Law Institute, Model Code of Pre-Arraignment Procedure, Tent. Draft No. 1, Commentary 95-97 (1966); Bator & Vorenberg, 66 Colum.L.Rev. 62, 64-67 (1966); La Fave, Arrest 346 (1965); Note, 78 Harv.L.Rev. 473, 474-75 (1964); Barrett, 1960 Sup. Ct.Rev. 47, 65-66 (Kurland ed.); Leagre, 54 J.Crim.L. 393, 416-20 (1963). On the other hand, it must be recognized that the potential for serious abuse of a police power to detain on less than probable cause is great, and the exercise of that power must be subjected to closest judicial scrutiny. Moreover, any official exertion of custody over the person is a “seizure” within the meaning of the Fourth Amendment, and may be sustained only if not “unreasonable” under the circumstances. A.L.I. Model Code, supra, at 94-95; Bator & Vorenberg, supra, 66 Colum.L. Rev. at 65-66; Leagre, supra, 54 J.Crim. L. 396, 419-20. See also Schmerber v. State of California, 384 U.S. 757, 767-768, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The agents’ conduct in the present case met the standard of reasonableness. Their duty, imposed by the warrant, was to find appellant and arrest him. They had substantial reason to believe he might be in the immediate vicinity. It was proper to identify anyone in the area who met appellant’s general description. Appellant could not be seen clearly in the darkened phone booth. To give him notice, no matter how short, by asking him to step into the light might have imperiled life, for appellant had demonstrated his willingness to kill to avoid arrest, and he was known to be armed. His removal from the phone booth was accomplished with minimum force. The period of involuntary detention before probable cause was acquired was short — seconds at most. It was neither longer nor more oppressive than necessary to the discharge of the agents’ duty to identify appellant and arrest him, and it was put to no other purpose. II Appellant sought to exclude the testimony of various witnesses identifying him as a participant in the robbery of the respective banks, on the ground that these courtroom identifications were based in whole or in part upon (1) a prior examination by each witness of a photograph of appellant which was unlawfully seized during an illegal search of appellant’s apartment; and (2) a prior viewing of appellant at an unlawful police lineup. A. Seizure of the Photograph The circumstances leading to the seizure of the photograph were as follows. At approximately 11:00 a. m. on January 3, 1964, two armed men robbed the Mutual Savings and Loan Association of Alhambra, California. A police officer was shot and killed. One of the robbers was wounded, but both escaped. Shortly thereafter the automobile which the robbers had driven from the bank was found abandoned about eight blocks away. The wounded robber was found in a second automobile nearby, and was taken to a hospital. A witness reported that two men had driven away from the scene in a third automobile. These facts were related to an FBI agent who arrived upon the scene about noon. He radioed the information to his office. Another FBI agent was dispatched to the hospital to interview the wounded robber. The interview continued intermittently over several hours. The wounded man, Edgar Weaver, died at 9:00 p. m. that evening. Early in the interview, Weaver admitted his participation in the robbery, and said that a man named “Gilbert” was his accomplice. The agent telephoned this information to his office. Weaver then “came up with the name ‘Skinny Gilbert.’ ” The agent called his office with this additional information, and, in response, his office gave him appellant’s name, “Jesse James Gilbert,” and asked the agent to find out from Weaver if he was the one. Weaver confirmed this identification. He also reported, accurately, that appellant was then a prison escapee. Weaver also told the agent that he and appellant spent the previous night in apartment 28 of an apartment house with an “Hawaiian-sounding” name located two blocks from the corner of Los Feliz Boulevard and Riverside Drive in Glendale, California. The agent immediately informed his office. It was then about 12:30 p. m. The FBI office, by radio, dispatched another man, Agent Keil, to the indicated area with instructions to locate the apartment; and instructed two other agents, Agents Schlatter and Onsgard, to join with local police officers, secure arms, and proceed to the area. Agent Keil located the “Lanai Apartments” at 3717 Los Feliz Boulevard, near Riverside Drive, and advised his office. He then spoke to the manager, who told him that “Robert Flood,” in whose name apartment 28 was rented, had just left through an exit to a rear driveway, stating that he was going to San Francisco for several days. Agent Keil immediately checked the driveway but saw no one. A stairway led from the driveway to the second floor where apartment 28 was located. Agent Keil secured the key to apartment 28, and turned it over to Agents Schlatter and Onsgard, who had just arrived. Agents Schlatter and Onsgard had picked up local police reinforcements and arms, as instructed, and proceeded to the address of the apartment house relayed to them by radio, arriving three or four minutes after Agent Keil. They had been advised by radio of other pertinent information, outlined above, as it was obtained. Agent Schlatter was also aware, from his own knowledge, that there was an outstanding warrant for the arrest of appellant as a prison escapee. The FBI agents and police officers surrounded the building. Agent Schlatter with others, armed with shotguns and pistols, approached apartment 28. Agent Schlatter unlocked the door, and he and the others entered. Looking for anyone who might be within, they searched through the rooms, under beds, and in closets. The apartment was empty. About the apartment, in plain view, were a notebook opened to a sketch, marked “Alhambra” and depicting the area of the robbed bank, a quantity of currency, a clip from a .45-caliber pistol, and an envelope of the type used to deliver photographs. Nothing but the pictures was disturbed. These were taken immediately to the robbed bank to determine whether any of the witnesses could identify the person in the photographs as one of the robbers. The other items were seized subsequently under a warrant secured several hours later — this. seizure is not now questioned. At trial the government did not rely upon the seized photographs as evidence. Appellant, in cross-examining witnesses who identified him as a participant in the robberies involved here, brought out the fact that prior to the trial most of the witnesses had identified appellant from photographs, including one of those taken from appellant’s apartment. Appellant argues that the courtroom identification should have been suppressed as fruits of an unlawful seizure. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Appellant’s contention was rejected by the California Supreme Court in an appeal from his conviction of the murder of the police officer. People v. Gilbert, 63 Cal.2d 690, 47 Cal.Rptr. 909, 919-920, 408 P.2d 365, 374-375 (1965). We arrive at the same conclusion, holding, for reasons set out below, that (1) the entry and (2) the search, and (3) the seizure, were all lawful. 1. The Entry. Appellant argues that the FBI agents and police officers lacked probable cause to enter the apartment to make an arrest because (1) Weaver, the wounded man, was not known to them to be a reliable informer; and (2) the information which they had indicated that apartment 28 was unoccupied. The second contention is quickly answered. As the agents and police approached the door to apartment 28, they knew that three men might have participated in the robbery; that only one— Weaver — was accounted for; and that the other two had fled in the same automobile. While one man had apparently left apartment 28, he might have returned by way of the rear stairs. Agent Schlatter testified that the agents and police entered the apartment for the purpose of making an arrest, believing one or more of the robbers might be within. The precautions which they took in surrounding the building, in approaching the apartment heavily armed, and in opening the door and entering without announcement reflected this purpose and belief. Appellant’s “probable cause” contention is also unfounded. “In testing the sufficiency of probable cause for an officer’s action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge” (Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960)), and “is sufficiently accurate to lead the officers directly to the suspect.” Wong Sun v. United States, 371 U.S. 471, 480, 83 S.Ct. 407, 413, 9 L.Ed.2d 441 (1963); see also Broeder, 42 Neb.L.Rev. 483, 501-02, 508-12 (1963). Weaver’s information obviously met the requirement of particularity. We think it also satisfied the requirement of reliability. It is true that the agents “had no basis in experience for confidence in the reliability of [Weaver’s] information” (Wong Sun v. United States, supra, 371 U.S. at 480, 83 S.Ct. at 413), but “a substantial basis for crediting the hearsay” (Jones v. United States, supra, 362 U.S. at 272, 80 S.Ct. at 736) may be found in other circumstances, particularly in the officer’s verification of details of the informant’s statement before the officer acts. United States v. Nori, 352 F.2d 910, 911 (7th Cir. 1965); Katz v. Peyton, 334 F.2d 77, 78 (4th Cir. 1964); Jones v. United States, 326 F.2d 124, 128-129 (9th Cir. 1963); Costello v. United States, 324 F.2d 260, 262 (9th Cir. 1963); Naples v. United States, 113 U.S.App. D.C. 281, 307 F.2d 618 (1962); United States v. Irby, 304 F.2d 280, 283 (4th Cir. 1962); Rodgers v. United States, 267 F.2d 79, 85, 88 (9th Cir. 1959); Comment, 53 Calif.L.Rev. 840, 842 (1965); Note, 25 Ohio St.L.J. 502, 519 (1964). The independent determination by the FBI office of appellant’s full name from the nickname furnished by Weaver, and Weaver’s confirmation of this identification; the verification of Weaver’s information that appellant was an escapee; and the location of the Lanai Apartments, and of apartment 28, on the basis of Weaver’s description, were facts known to Agent Schlatter which lent credence to Weaver’s story. Moreover, a man of reasonable caution could find reason for reliance in the fact that Weaver was a fully confessed participant in the crime, mortally wounded, and beyond expectation of personal benefit by incriminating the innocent. We conclude that reliance upon Weaver’s information was reasonable; and, of course, his accusation established probable cause. As we have noted, the FBI agents and local police broke into appellant’s apartment without first announcing their authority and purpose as required by 18 U.S.C.A. § 3109. Appellant contends that the entry was for this reason unlawful. Wong Sun v. United States, supra, 371 U.S. at 482-484, 83 S.Ct. 407, 9 L.Ed.2d 441; Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958); Ng Pui Yu v. United States, 352 F.2d 626, 631 (9th Cir. 1965); Blakey, 112 U.Pa.L.Rev. 499, 516-26 (1964); Kaplan, 49 Calif.L.Rev. 474, 500-03 (1961). Agent Schlatter testified that because of the possible presence of an armed murderer in the apartment he believed an announcement before entry might increase, “extremely,” the personal peril to the officers. The Supreme Court of California has held that the entry into apartment 28 fell within an exception to the state’s announcement requirement (Calif. Penal Code § 844) because compliance “might have alerted the suspect and increased the officers’ peril.” People v. Gilbert, supra, 63 Cal.2d 690, 47 Cal.Rptr. at 919, 408 P.2d at 375. See also Ker v. State of California, 374 U.S. 23, 37-41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). Although the question appears to be one of first impression, expressly reserved in Miller v. United States, supra, 357 U.S. at 309, 78 S.Ct. at 1190, we think a similar exception is to be read into the unqualified language of 18 U.S. C. A. § 3109. This appears to be the common-law rule. People v. Maddox, 46 Cal.2d 301, 294 P.2d 6, 9 (Sup.Ct.Calif. 1956), quoted with approval in Ker v. State of California, supra, 374 U.S. at 39-40, 83 S.Ct. 1623; Restatement (Second), Torts § 206 comment d; Wilgus, 22 Mich.L.Rev. 798, 802 (1924); Blakey, 112 U.Pa.L.Rev. 499, 505-06 (1964). See also Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456, 463 (D.C.Cir. 1949). Even the Justices who disagreed with the result in Ker v. State of California agreed that some exceptions to the rule of prior announcement are to be recognized. 374 U.S. at 54-65, 83 S.Ct. 1623. This much admitted, it would be difficult to justify refusal to excuse prior announcement where to require it would create palpable peril to the life or limb of the arresting officers. See Blakey, 112 U.Pa.L.Rev. 499, 542-43 (1964); Kaplan, 49 Calif.L.Rev. 474, 502 (1961). The entry of the agents was therefore lawful. 2. The Search. Once lawfully on the premises the agents could properly observe what was in plain sight. Ker v. State of California, supra, 374 U.S. at 36-37, 83 S.Ct. 1623. Viewed realistically, this included the photographs. Although the photographs were in an envelope, the envelope was on top of a dresser and its exterior revealed its contents — it was the type of envelope commonly used in transmitting photographs, and was clearly marked with the name and address of the studio. See Chapman v. United States, 346 F.2d 383, 385-387 (9th Cir. 1965). But even if discovery of the photographs involved a search, the search did not offend the Fourth Amendment. The officers had probable cause sufficient to support issuance of a search warrant; in addition to the information available before entry, the knowledge which the officers lawfully acquired of the sketch, the money, and the gun clip made the complicity of the former occupant or occupants in the bank robbery virtually certain. The officers had no search warrant, and since there was no arrest to which a warrantless seizure might be incident, the seizure was lawful only if necessitated by exigent circumstances (Cipres v. United States, 343 F.2d 95, 98 n. 9 (9th Cir. 1965)); but such circumstances were plainly present, for time was of the essence if the photographs were to assist in the identification and pursuit of the fleeing robbers (Caldwell v. United States, 338 F.2d 385, 387 (8th Cir. 1964). See also, Schmerber v. State of California, supra, 384 U.S. at 770-771, 86 S.Ct. 1826, 16 L.Ed.2d 908; Ker v. State of California, supra, 374 U.S. at 41-42, 83 S.Ct. 1623; Cipres v. United States, supra, 343 F.2d at 98, last paragraph of n. 9). Discovery of the photographs was therefore lawful. 3. The Seizure. But this does not necessarily justify their seizure. As the Supreme Court said in Abel v. United States, 362 U.S. 217, 234, 80 S.Ct. 683, 695, 4 L.Ed.2d 668 (1960), “not every item may be seized which is properly inspectible by the Government in the course of a legal search; for example, private papers desired by the Government merely for use as evidence may not be seized, no matter how lawful the search which discovers them, Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 265, 65 L.Ed. 647 * * Appellant contends that his photographs fell within this rule. The much criticized rule forbidding the seizure of “mere evidence” in an otherwise valid search has been recently rejeeted in notable decisions of the highest courts of California and New Jersey. People v. Thayer, 63 Cal.2d 635, 47 Cal. Rptr. 780, 408 P.2d 108 (1965); State v. Bisaccia, 45 N.J. 504, 213 A.2d 185 (1965). As an inferior appellate court, that course is not open to us. We may, however, in light of the substantial objections which have been raised to the rule, confine its application to situations where it will clearly serve the purposes upon which it is said to be based. (1) Self-incrimination. Photographs of an accused, used only as a means of identification, are no more within the privilege against self-incrimination than his physical appearance (Smith v. United States, 117 U.S.App. D.C. 1, 324 F.2d 879, 882 (1963); United States v. Amorosa, 167 F.2d 596, 599 (3d Cir. 1948); 2 Wharton, Criminal Evidence § 659, p. 95 (1966 Cum.Supp.); 8 Wigmore, Evidence § 2265, p. 386-88 (12th ed. 1961); Inbau, Self-Incrimination 38-41 (1950); see also Schmerber v. State of California, supra, 384 U.S. at 763-764, 86 S.Ct. 1826, 16 L.Ed.2d 908; Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 54 L.Ed. 1021 (1910)) and are in this respect indistinguishable from his fingerprints. United States v. Thompson, 356 F.2d 216, 224 n. 7 (2d Cir. 1965); Napolitano v. United States, 340 F.2d 313, 314 (1st Cir. 1965); Smith v. United States, supra, 117 U.S.App.D.C. 1, 324 F.2d at 882; United States v. Iacullo, 226 F.2d 788, 792 (7th Cir. 1955); United States v. Kelly, 55 F.2d 67, 68-69 (2d Cir. 1932); 1 Underhill, Criminal Evidence § 144, p. 270 (5th ed. 1956); Inbau, supra, 32-38. The only use made of the seized photographs was that of showing them to witnesses to the robberies for the purpose of identification. There is nothing to indicate that they were relied upon as being in any other way incrimináting — for example, as connecting appellant with the stolen currency, the sketch of the robbery scene, and the cartridge clip also found in apartment 28. (2) Privacy. Since the photographs were either in plain sight following the officers’ legal entry, or were disclosed in a proper though warrantless search, no substantial right of privacy was offended. (3) General search. There was no general exploratory search for evidence of guilt. The agents testified that they confined their initial search to locating occupants of the room or indications of their identity and possible location, and there is nothing to question the agents’ good faith. Only the pictures were taken. “The search in the present case was * * * properly limited to and incident to the purpose of the officers’ entry.” People v. Gilbert, supra, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d at 375. See also Harris v. United States, 331 U.S. 145, 153, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); United States v. Lefkowitz, 285 U.S. 452, 465-466, 52 S.Ct. 420, 76 L.Ed. 877 (1932); United States v. Guido, 251 F.2d 1, 4 (7th Cir. 1958); Matthews v. Correa, 135 F.2d 534, 537 (2d Cir. 1943). (4) Property. There was undoubtedly an interference with appellant’s property right in the photographs. Although this rationale for the rule figures prominently in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886), and Gouled v. United States, 255 U.S. 298 (1921), even these early opinions recognize that the owner’s right to undisturbed possession of his property must sometimes give way to an overriding social interest. The pressing public interest in the speedy identification and pursuit of the escaping murderers far outweighed the slight inconvenience appellant might have sustained from the temporary invasion of his possessory interest in his property. Cf. Caldwell v. United States, 338 F.2d 385, 387 (8th Cir. 1964); see also Restatement (Second), Torts § 265, comment e. We conclude that the photograph was properly seized. DUNIWAY, Circuit Judge. Judge BARNES and I concur in the foregoing portion of the opinion of Judge BROWNING, to whom the preparation of the opinion in this case was assigned. We are unable, however, to concur in his views as to the other questions presented on this appeal. As to those questions, our opinion is as follows: II. B. The Lineup. Gilbert claims that the court should have suppressed the testimony of eleven witnesses who identified him as a participant in the four robberies. He asserts that each identified him at a police lineup and that his being required to participate violated rights guaranteed to him by the Fifth, Sixth, and Fourteenth Amendments. However, no mention of the Fourteenth was made at the trial. Here is what the record shows. The government presented the testimony of fourteen persons, each an eyewitness to one of the offenses with which Gilbert was charged. Each one identified Gilbert, in the courtroom, as one of the robbers. Each then described the particular robbery that the witness had seen, in some detail, including Gilbert’s participation in it. No objection was made, no motion to suppress the testimony of the witness was made either before trial, or before or at the time the witness testified. No request was made that the witness be first examined on voir dire, or out of the presence of the jury, to lay a foundation for the contention that Gilbert now makes. On cross examination, twelve of the witnesses were asked if they had identified Gilbert at a police lineup. One did not. The other eleven did. Gilbert and his counsel then obtained from some of these witnesses a description of what happened at the lineup. In some instances, the government, on re-direct, brought out further evidence on the subject, primarily to emphasize that the men in the lineup were identified only by number, not by name. None of the evidence thus elicited was made the basis of an objection, a motion to suppress, a request for a hearing out of the presence of the jury, or anything else before the witness was excused. After all of these eleven witnesses had testified and been excused, Gilbert made the motion set out in the margin. We think that Gilbert’s motion was insufficient, that it came too late, and that we are therefore not required to consider the contentions that he now makes. Judge Browning, however, would not only consider them but also make them a basis for a reversal of the judgment. We disagree, and state our views as to their merits. It was stipulated that Gilbert did not have counsel present at the lineup. Neither did the government. We assume, for the purpose of considering the matter, that, as Gilbert asserts, he informed the marshals that he did not want to attend and demanded counsel, and he was taken to the lineup anyway. The lineup occurred on March 26, 1964, after Gilbert had been indicted and had obtained counsel. It was held in an auditorium used for that purpose by the Los Angeles police. Some ten to thirteen prisoners were placed on a lighted stage. The witnesses were assembled in a darkened portion of the room, facing the stage and separated from it by a screen. They could see the prisoners but could not be seen by them. State and federal officers were also present and one of them acted as “moderator” of the proceedings. Each man in the lineup was identified by number, but not by name. Each man was required to step forward into a marked circle, to turn, presenting both profiles as well as a face and back view, to walk, to put on or take off certain articles of clothing. When a man’s number was called and he was directed to step into the circle, he was asked certain questions: where he was picked up, whether he owned a car, whether, when arrested, he was armed, where he lived. Each was also asked to repeat certain phrases, both in a loud and in a soft voice, phrases that witnesses to the crimes had heard the robbers use: “Freeze, this is a stickup; this is a holdup; empty your cash drawer ; this is a heist; don’t anybody move.” Either while the men were on the stage, or after they were taken from it, it is not clear which, the assembled witnesses were asked if there were any that they would like to see again, and told that if they had doubts, now was the time to resolve them. Several gave the numbers of men they wanted to see, including Gilbert’s. While the other prisoners were no longer present, Gilbert and 2 or 3 others were again put through a similar procedure. Some of the witnesses asked that a particular prisoner say a particular phrase, or walk a particular way. After the lineup, the witnesses talked to each other; it is not clear that they did so during the lineup. They did, however, in each other’s presence, call out the numbers of men they could identify. FIFTH AMENDMENT “ * -x- * nor shan any person * * * be compelled in any criminal case to be a witness against himself * * United States Const., Amendment 5. Gilbert does not assert that he was asked any incriminating questions, much less that he gave any incriminating answers, during the lineup. His contention is that his being required to participate in the lineup violated his privilege against self-incrimination because it compelled him to furnish evidence against himself. The evidence so furnished was himself, his voice, and his movements. We hold that his fifth amendment privilege was not violated. It has long been the view of the courts and of leading commentators that the privilege is limited to incriminating communications. Mr. Justice Holmes, speaking for the Court in Holt v. United States, 1910, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021, stated the principle as follows: “Another objection is based upon an extravagant extension of the 5th Amendment. A question arose as to whether a blouse belonged to the prisoner. A witness testified that the prisoner put it on and it fitted him. It is objected that he did this under the same duress that made his statements inadmissible, and that it should be excluded for the same reasons. But the prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof.” Wigmore agrees: “ * * * the privilege is limited to testimonial disclosures. It was directed at the employment of legal process to extract from the person’s own lips an admission of guilt, which would thus take the place of other evidence.” 8 Wigmore, Evidence § 2263 (McNaughton rev. ed. 1961.) The most recent pronouncement by the Supreme Court, in Schmerber v. State of California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 is to the same effect. And every federal court that has passed upon the question so far as we can discover, has taken the same position. See, e. g., United States ex rel. Stovall v. Denno, 2 Cir., 1966, 355 F.2d 731, 734-738; Rigney v. Hendrick, 3 Cir., 1965, 355 F.2d 710, 713-714; Kennedy v. United States, D.C.Cir., 1965, 353 F.2d 462, 466; Copeland v. United States, D.C.Cir., 1964, 343 F.2d 287, 290; Caldwell v. United States, 8 Cir., 1964, 338 F.2d 385; Smith v. United States, 1963, 117 U.S. App.D.C. 1, 324 F.2d 879, 882; United States v. Iacullo, 7 Cir., 1955, 226 F.2d 788, 793; Smith v. United States, D.C. Cir., 1950, 187 F.2d 192, 193-99; Swingle v. United States, 10 Cir., 1945, 151 F.2d 512, 513; McFarland v. United States, 1945, 80 U.S.App.D.C. 196, 150 F.2d 593, 594. There is much state authority to the same effect, e. g., State v. Fisher, Ore., 1966, 410 P.2d 216, 217; People v. Graves, Cal., 1966, 49 Cal.Rptr. 386, 411 P.2d 114, 115-116; People v. Gilbert, Cal., 1965, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365, 376-377 cert. granted, 1966, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003; People v. Lopez, Cal., 1963, 32 Cal.Rptr. 424, 384 P.2d 16, 27-28. The foregoing cases involve such matters as police lineups, Rigney v. Hendrick, supra, Williams v. United States, supra, Copeland v. United States, supra, Caldwell v. United States, supra, People v. Gilbert, supra, People v. Lopez, supra, including requiring the suspect to speak, not to elicit information but for voice identification, Rigney v. Hendrick, supra, People v. Lopez, supra, confrontation of the suspect by the victim at the time of arrest for purposes of identification, Kennedy v. United States, supra, similar confrontation at the police station, Smith v. United States, 187 F.2d, supra, or at a hospital to which the victim had been taken, United States ex rel. Stovall v. Denno, supra, or in court, Swingle v. United States, supra, fingerprints and palm prints, Smith v. United States, D.C.Cir., 324 F.2d, supra. United States v. Iacullo, supra, exemplars of handwriting, State v. Fisher, supra, People v. Graves, supra, examination of one’s body to find blood on it, McFarland v. United States, supra, and the taking of a blood sample, Sehmerber v. State of California, supra. They also make it clear that it is permissible to require that the suspect put on or take off clothing, move, assume certain poses, or speak, as Gilbert was required to do. Because one’s voice is as much a physical characteristic as the col- or of his eyes, we reject the notion, advanced by some authorities, that requiring the suspect to speak, where doing so does not involve communicating what he knows, violates his privilege. SIXTH AMENDMENT “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.” United States Const., Amendment 6. Gilbert would have us extrapolate from certain decisions of the Supreme Court a rule that he had a right to consult counsel before being required to participate in the lineup, and to have the assistance of counsel during the lineup. He deduces from this rule a further result, that when these claimed rights are denied, no witness who was present at the lineup may give identifying testimony against him at his trial. We reject both the purported rule and the claimed result. The cases from which the purported rule is extracted fall into two categories. One group of cases calls the Sixth Amendment to the aid of the Fifth when the police seek information from the suspect who is in custody or on bail. Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Miranda v. State of Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The foregoing statement relates to the factual situations in these cases. The legal theories that they apply vary somewhat. In Massiah, an indicted federal defendant who had a lawyer was arraigned, pled not guilty, and was released on bail. A codefendant, posing as a friend but actually cooperating with the government, obtained incriminating statements from him. These were admitted at his trial. The Supreme Court reversed. Before the Supreme Court, Massiah relied upon the Fourth Amendment’s prohibition of unreasonable search and seizure, and upon the Fifth and Sixth Amendments. The Court said that it did not reach the Fourth Amendment claim. It did not say that it was relying only on the Sixth. It speaks of the right to counsel and says that a defendant is “as much entitled to such aid [of counsel] during that period” (from arraignment until the beginning of trial) “as at the trial itself.” (P. 205, 84 S.Ct. at p. 1202) Its holding is twice stated, first at p. 206, 84 S.Ct. at p. 1203: “We hold that the petitioner was denied the basic protections of that [Sixth Amendment] guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” The second statement is at p. 207, 84 S.Ct. at p. 1203: “All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.” We note that, in both statements, there is emphasis upon “his own incriminating statements.” These phrases certainly point to the Fifth Amendment. The Court limited its holding to the obtaining of such evidence. It also said (p. 207, 84 S.Ct. at p. 1203): “We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted.” However one reads the Massiah case, it certainly is not a ruling upon the type of case now before us. Escobedo, likewise, does not deal with such a case as this one. There, the police had a suspect in custody and questioned him until he confessed. In doing so, they disregarded his request to see his lawyer, and the lawyer’s request to see him. Relying upon Massiah, the Court held that the confession should have been excluded. It based its decision on the Sixth Amendment right to counsel. (See particularly, 378 U.S. at 484-488, 84 S.Ct. 1758.) But it also tied that right, in the context of the case, to the Fifth Amendment privilege against self-incrimination. “The fact that many confessions are obtained during this period points up its critical nature as a ‘stage when legal aid and advice’ are surely needed. Massiah v. United States, supra, at 204, 84 S.Ct. at 1202; Hamilton v. [State of] Alabama, supra; White v. [State of] Maryland, supra. The right to counsel would indeed be hollow if it began at a period when few confessions were obtained. There is necessarily a direct relationship between the importance of a stage to the police in their quest for a confession and the criticalness of that stage to the accused in his need for legal advice. Our Constitution, unlike some others, strikes the balance in favor of .the right of the accused to be advised by his lawyer of his privilege against self-incrimination. See Note, 73 Yale L.J. 1000, 1048-1051 (1964). “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” (Id. at 488-489, 84 S.Ct. at 1764.) And it summarizes its holding as follows: “We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342 83 S.Ct. [792,] at 795 [9 L.Ed.2d 799] and that no statement elicited, by the police during the interrogation may be used against him at a criminal trial.” (Id. at 490-491, 84 S.Ct. at 1765.) Again, there is emphasis upon “eliciting incriminating statements.” We note, too, that the Court distinguished Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448, because “In that case the Court merely rejected the absolute rule sought by petitioner, that ‘every state denial of a request to contact counsel [is] an infringement of the constitutional right without regard to the circumstances of the case.’ Id., 357 U.S., at 440, 78 S.Ct. at 1292. (Emphasis in original.)” We also note that the Court limited its holding: “Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime,’ Spano v. People of State of New York, 360 U.S. 315, 327, 79 S.Ct. 1202, 1209, 3 L.Ed.2d 1265 (Stewart, J., concurring), by gathering information from witnesses and by other ‘proper investigative efforts.’ Haynes v. [State of] Washington, 373 U.S. 503, 519, 83 S.Ct. 1336, 1346, 10 L.Ed.2d 513. We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (Id. at 492, 84 S.Ct. at 1766.) Miranda, a group of four cases, is basically an explanation and extension of the Escobedo holding. (See 384 U.S. at 441-442, 86 S.Ct. 1602.) In Miranda, the Court said of Escobedo: “That case was but an explication of basic rights that are enshrined in our Constitution — that ‘No person * * * shall be compelled in any criminal case to be a witness against himself,’ and that ‘the accused shall * * * have the Assistance of Counsel’ — rights which were put in jeopardy in that case through official overbearing.” (Id. at 442, 86 S.Ct. at 1611.) There then follows a brief discussion of the history and purpose of the privilege against self-incrimination, and a summary statement of the holding: “Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” (Id. at 444, 86 S.Ct. at 1612.) The entire opinion deals explicitly with statements obtained from the accused. It does not relate in any way to the type of case now before us. The only reference to police lineups appears at p. 453, 86 S.Ct. 1602, and deals with the misuse of a lineup to trick the accused into confessions, not with the use of a lineup for purposes of identification. And the discussion of the law, in part II of the opinion, deals primarily with the Fifth Amendment. Speaking of Escobedo, the Court said: “A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. In Escobedo, however, the police did not relieve the defendant of the anxieties which they had created in the interrogation rooms. Rather, they denied his request for the assistance of counsel, 378 U.S. at 481, 488, 491, 84 S.Ct. at 1760, 1763, 1765. This heightened his dilemma, and made his later statements the product of this compulsion. Cf. Haynes v. State of Washington, 373 U.S. 503, 514, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513 (1963). The denial of the defendant’s request for his attorney thus undermined his ability to exercise the privilege — to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.” (Id. at 465-466, 86 S.Ct. at 1623.) Moreover, part III of the opinion makes it clear that the right to consult counsel, and the right to have counsel present, are to protect the Fifth Amendment privilege : “The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today.” (P. 469, 86 S.Ct. p. 1625.) ****** “Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. State of Illinois, 378 U.S. 478, 485, n. 5, 84 S.Ct. 1758, 1762. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” (P. 470, 86 S.Ct. p. 1625.) ****** “The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance.” (P. 472, 86 S.Ct. p. 1626.) Once again, the Court limited its holding: “Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 492, 84 S.Ct. 1758, 1765, 12 L.Ed. 2d 977. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him.” (P. 477, 86 S.Ct. p. 1629.) ****** “As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions.” (P. 481, 86 S.Ct. p. 1631.) We think it clear that the foregoing cases do not require a holding that Gilbert had a right to consult counsel before being placed in a lineup, or to the presence of counsel at a lineup. The other cases relied upon are White v. State of Maryland, 1963, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 and Hamilton v. State of Alabama, 1961, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. These cases, we think, are not remotely in point. In Hamilton, the Court held that a defendant had a Sixth Amendment right to counsel at an Alabama preliminary hearing, because such a hearing is, in that state, “a critical stage in a criminal proceeding.” (P. 53, 82 S.Ct. p. 158.) In Alabama, the defense of insanity must then be pleaded, pleas in abatement must then be made, and motions to quash based upon defects in the drawing of a grand jury must then be made; otherwise, these rights are lost. The Court held that, at such a hearing, the defendant has a right to counsel. White is similar. It holds that White had a right to counsel at his Maryland preliminary hearing. There White, not represented by counsel, pleaded guilty at such a hearing. Later, upon arraignment, he pled not guilty. As his trial, the guilty plea was used against him. The Court held that White’s preliminary hearing was a “critical stage.” Both of these cases dealt with proceedings of a formal nature, before a judge or magistrate, at which an ignorant defendant could (and in White, did) lose, through ignorance, rights that a lawyer could protect. Of course the defendant should have had counsel in those cases. But their relation to this case is, to say the least, difficult to discern. It is quite true that, unlike the first group of cases, they do not expressly involve the Fifth Amendment. It is equally true that they do not lay down a rule that would require counsel at a police lineup. They merely require that a defendant have (or waive) counsel at a proceeding at which he loses rights that counsel could have protected. No doubt that is why they were cited in Massiah and in Escobedo, which applied their- rationale to the pre-trial loss of Fifth Amendment rights. More pertinent than any of the foregoing cases, we think, is Schmerber v. State of California, 1966, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. There a defendant, arrested for drunken driving, was compelled despite his refusal to do so on advice of counsel to give a sample of his blood to be tested for alcoholic content. After rejecting his Fifth Amendment claim, the Court turned to his Sixth Amendment right to counsel claim, and disposed of it as follows: “Since petitioner was not entitled to assert the privilege, he has no greatér right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel’s advice, to be left inviolate. No issue of counsel’s ability to assist petitioner in respect of any rights he did possess is presented. The limited claim thus made must be rejected.” (P. 766, 86 S.Ct. p. 1833) But it is asserted that here counsel could have assisted Gilbert by advising Gilbert not to participate, or seeing to it that the lineup was fairly conducted. This, however, begs the question left open by Schmerber, which is, could counsel have assisted him “in respect of any rights he did possess?” To answer this question in the affirmative would be to say that Gilbert and his counsel, not the police, had the right to decide whether a lineup or some other identification procedure should be held at all, and if it be held, how and under what circumstances. With one exception, the authorities to date are clear that these are not “rights [Gilbert] did possess.” “There is no law or decision which says that a man, free or incarcerated, has a constitutional right not to be observed and possibly identified as the perpetrator of a crime even though no formal charges have been made.” Rigney v. Hendrick, 3 Cir., 1965, 355 F.2d 710, 712. “The absence of counsel at the time of the confrontation at the scene of the crime did not deprive Appellant of a right to silence, a right to withhold evidence or any other right which could have been effectively asserted had counsel been present.” Kennedy v. United States, D.C.Cir., 1965, 353 F.2d 462, 466. “If Stovall had had counsel, what could counsel have done to thwart the identification? He could not have demanded Stovall’s immediate release so that no one might see him. He could not have arranged to have Stovall continuously wear a hood or mask over his face to avoid identification, nor could he have ordered the police forthwith to halt their identification activities. Counsel would not have said ‘Cease further efforts at identification: Stovall has admitted his guilt’ because Stovall had not done so. “Again adverting to the opinion in Kennedy, supra, counsel could not have prevented the hospital room identification because ‘An accused has no right to be viewed in a line-up rather than singly/ Here, as in Kennedy, counsel could not ‘have altered the course of events’ as to identification, and since no confession or ‘any other evidence respecting which counsel could have rightfully advised Appellant to refuse to yield’ was obtained, there was no deprivation of Sixth Amendment rights.” United States ex rel. Stovall v. Denno, 2 Cir., 1966, 355 F.2d 731, 739. The exception is Wade v. United States, 5 Cir., 1966, 358 F.2d 557. Wade is a two to one decision. Judge Tuttle wrote the majority opinion; Judge Jones dissented. The casting vote was by Judge Waterman of the Second Circuit, who was one of the three dissenters in United States ex rel. Stovall v. Denno, supra. The decision simply follows the dissent in that case. We decline to follow it. The same arguments as to assistance that counsel might render could also be made as to the taking and analysis of blood samples (Schmerber v. State of California, supra), the taking and comparison of fingerprints (Smith v. United States, D.C.Cir., 1963, 324 F.2d 879), the obtaining and comparison of handwriting exemplars (State v. Fisher, Ore., 1966, 410 P.2d 216; People v. Graves, Cal., 1966, 49 Cal.Rptr. 386, 411 P.2d 114), and to many other investigative procedures. As to each of these activities, and others like them, it can be argued that matters of judgment and proper procedure can vitally affect the result. Why, then, should not defense counsel, accompanied if necessary by experts, participate in all of them, from beginning to end, to see that acceptable, fair procedures are used, scientific standards are maintained, and only the very best evidence is thus developed? One answer, we would think, lies in the need for expedition. Another is the disruptive effect upon investigators who would have opposing counsel breathing down their necks. We are inclined to doubt that once it began to appear that the evidence was likely to point to the guilt of the accused, his counsel’s participation would be constructive. Another is that a criminal trial is not supposed to be a sporting contest. We conduct it as an adversary proceeding. But that does not mean that everything done by the state, preparatory to trial, for the purpose of proving or disproving guilt, is suspect as sloppy or biased or fraudulent. Society has a legitimate interest in convicting the guilty, just as it has in seeing that the innocent are not tried or convicted, and in seeing that a person who is tried is tried fairly. See Williams v. United States, 1965, 120 U.S.App.D.C. 244, 345 F.2d 733, 736, separate opinion of Burger, J. Scientific crime detection plays a part in serving all of these interests. So does the police lineup. The defendant’s protection against errors or mistakes lies in full exposure of the facts at trial, through cross-examination and the presentation of contrary evidence, and in the impartiality and good sense of the judge and jury. No doubt it will be said that all that we are concerned with is a lineup; that a lineup differs from the other investigatory activities that we have mentioned in that they are “scientific” while a lineup is not, that the lineup involves the active participation of the accused, and that we should await another day to talk about matters not now before us. But the difference is one of degree. And there is at least one reason applicable to the lineup, but not to the other activities mentioned, that further justifies holding that the state, not the defendant or his counsel, should continue to control it. The purpose of a lineup is to permit witnesses to the crime, often the victims, to identify the criminal. It is still unfortunately true, in this country at least, that in many cases witnesses need protection from intimidation and worse. It is said that English practice demonstrates that the presence of counsel at a lineup is helpful, and that in one American city, Philadelphia, when the police hold a lineup they notify the suspect’s attorney and permit him to be present. (See Rigney v. Hendricks, 3 Cir., 1965, 355 F.2d 710, 712.) These practices are illuminating, but that does not require that they be elevated into constitutional rights. Opinions may well differ as to whether a better procedure could have been followed at Gilbert’s lineup. Thus it is claimed that the assembling of the witnesses in the same auditorium, and permitting them to communicate with each other, was calculated to produce a' consensus at the expense of individual judgment. The assumption seems to be that this is unfair. Not necessarily. Our own experience indicates the contrary; very often, in trying to recall some past event or fact, we find it helpful to discuss the matter with others who were present. Recollection by concensus may be more accurate than that by individual judgment. Whether that was so here would, we think, be for the jury to decide, not for defense counsel to have a right to decide before or during the lineup. The testimony of witnesses who identify the defendant at a lineup can be as devastating to a defendant at trial as that of witnesses who testify to the results of fingerprints or handwriting comparison, or the chemical analysis of body fluids. In that sense, it can be said that such testimony may “make the trial no more than an appeal” from the investigative activities of the police. (The quotation is from Escobedo, 378 U.S. at 487, 84 S.Ct. at 1763). It can equally be said that the use of such testimony may critically affect the outcome of the trial. (Cf. Hamilton and White, supra.) But thus to use Escobedo or Hamilton or White, as Gilbert would have us do, and as the court did in Wade, supra, is to put those decisions to a use never contemplated. We refer again to the limiting language of the Court’s opinions in Massiah, Escobedo and Miranda, quoted above. And see the comments of Judge Burger in Kennedy v. United States, D.C. Cir., 1965, 353 F.2d 462, 464-466 and Williams v. United States, 1965, 120 U.S. App.D.C. 244, 345 F.2d 733, 734-736 (separate opinion). We cannot find support in any of the opinions of the Supreme Court for so broad a rule as is now pressed upon us, that the Sixth Amendment requires that the right to counsel be extended to all confrontations between the state and the accused during the course of a prosecution which may critically affect the outcome. Such a notion is flatly rejected in Schmerber v. State of California, supra. We have difficulty in imagining a “confrontation” that could more “critically affect the outcome” than the one that occurred in Schmerber. Moreover, the basic “confrontation” at a lineup was not between the state and the accused; it was between the accused and eyewitnesses to the crime, including his victims. We are aware, as is Judge Friendly, of “the Supreme Court’s new concept that the right to the assistance of counsel embraces activities outside the courtroom.” (United States ex rel. Stovall v. Denno, supra, dissenting opinion at p. 743, n. 3.) Such an awareness, however, does not answer the question here posed, namely, what activities outside the courtroom does the right embrace ? We doubt that Judge Friendly means all such activities; Schmerber shows the error of such a view. Other courts have rejected Sixth Amendment claims similar to those made by Gilbert. United States ex rel. Stovall v. Denno, supra, 355 F.2d at 739 (en banc, 6-3 decision); Kennedy v. United States, supra, D.C., 353 F.2d at 464-466; Williams v. United States, supra; State v. Fisher, supra, 410 P.2d at 216, 217; People v. Graves, supra, 411 P.2d at 115-116; People v. Gilbert, supra, 408 P.2d at 376, cert. granted, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003 (involving the same lineup as is here involved); People v. Lopez, supra, 384 P.2d at 26-27. We also reject them. Let it now be assumed, however, that we are wrong, and that Gilbert did have a right to counsel at the lineup. What effect should the failure to honor the right have upon the availability of the testimony of the witnesses at trial ? Gilbert would have us hold that they should not be permitted to testify at all. The Wade case seems to agree. We cannot accept such a view. The concept of a tainted witness, as distinguished from tainted evidence, is to us a novel one. So far as we can discover, no court except the Wade court has yet embraced it. The courts have excluded that part of the testimony of a witness that describes what he saw or heard on an occasion when his seeing or hearing was in violation of a constitutional right of the accused. See Wong Sun v. United States, 1963, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d 441. And under the “fruit of the poisonous tree” doctrine (Nar