Calvin F. Smith v. United States

413 F.2d 366

Opinions

PER CURIAM:

The primary issue raised by this appeal, and plausibly tendered by circumstances the record discloses, is whether the police procedures used in the pretrial photographic identification of appellant by the robbery victim violated due process and, if so, were the lineup and in-court identifications of appellant tainted thereby. Since the issue was not raised in the District Court, with the result that the factual picture is incomplete, we remand this case for the taking of such evidence and the making of such findings as may be appropriate, using the criteria announced in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968),

* and applying the principles announced in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). See also Wright v. United States, 131 U.S.App.D.C. 279, 404 F.2d 1256 (No. 20,153 decided January 31, 1968). Jurisdiction of this appeal is retained by this court.

Remanded.

These criteria include (1) the necessity to use photographs for identification; (2) the number of photographs of different persons used in the identification procedure; and (3) the information or instructions, if any, given by the police to the identifying witness immediately prior to the identification.