Before trial, the witness, Mrs. Fine, identified appellant at a single-suspect cellblock confrontation and again in the Court of General Sessions under uncertain circumstances. Even if these confrontations violated due process, however, we are satisfied that Mrs. Fine's in-court identification had an independent source. The robbery occurred in broad daylight and took several minutes, during which she stood face-to face with the robber. Immediately afterwards, the police showed her photographs of five men, not including appellant, and she could identify none of them. Subsequently, a police officer testified that he showed her five more pictures of Negro males, from which she unhesitatingly selected appellant's photo. According to her own recollection, she looked through half a book of photos before spotting appellant, and then later identified his photo in other books. Whichever recollection is correct, not only does this prior photographic identification pass the due process test of Simmons v. United States,*fn23 but in the circumstances it also establishes an independent source for her in-court identification. III. No. 21,439
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, and Burger and Robinson, Circuit Judges.* Burger, Circuit Judge (concurring in part and dissenting in part).
The appellant in these cases seeks reversal of three different but interrelated convictions. He was apparently the companion in crime of one Eugene Frazier whose appeal from a robbery conviction was recently before us in Frazier v. United States. *fn1 In No. 21,427, appellant attacks his conviction as co-defendant with Frazier in the trial for the Frazier robbery. In No. 21,437, he seeks reversal of a conviction for a different robbery, of which Frazier was acquitted. No. 21,439 involves a conviction for carrying the dangerous weapon found on appellant at the time of his arrest for the latter robbery.
In both robbery trials, Frazier's confession was improperly introduced into evidence against appellant. *fn2 The Government confesses error as to these convictions and requests a remand for new trials. We delayed the remands for two reasons. Initially, since all three cases also raise issues concerning the admissibility of identification evidence under Stovall v. Denno, *fn3 we held them for the court's en banc consideration of the implications of Stovall in Clemons v. United States. *fn4 In addition, in all three cases appellant challenges the admissibility of evidence claimed to be tained fruit of Frazier's confession, which was allegedly obtained in violation of Miranda v. Arizona. *fn5 Since it thus appeared that the admissibility of evidence against appellant might turn on whether Frazier's confession was a "poisonous tree," we originally decided to await the results of the remand on the Miranda issue we ordered in Frazier. However, a recent Supreme Court decision clearly establishes that notwithstanding any past indications to the contrary, appellant has no standing to complain of any violation of Frazier's Fifth Amendment rights. *fn6 Accordingly, these cases are now ripe for decision. I. No. 21,427
As the Government concedes, this conviction must be reversed because of the erroneous admission into evidence against appellant of his co-defendant's confession. The Government has also suggested that since the circumstances surrounding out-of-court eyewitness identifications of appellant are unclear from the record, appellant should be permitted at any new trial to challenge these witnesses' in-court identifications, even though the court below originally rejected such a challenge. We accept that suggestion. However, in Frazier v. United States (supra) we upheld the admission of in-court identifications of appellant's co-defendant Frazier made by the same witnesses, and this holding permits us to narrow the field of inquiry left open in the case at bar.
Since the witnesses, Reznick and Simpson, identified appellant before trial at the same single-suspect cellblock confrontation we found offensive to due process in Frazier, the question is whether their in-court identifications had an independent source. *fn7 On this question, Frazier indicates that Reznick and Simpson had a good opportunity to observe their assailants at the time of the offense. *fn8 They gave a reasonably accurate description of both robbers shortly thereafter. In these circumstances, we held that Reznick's photographic identification of Frazier, made in the absence of prejudicial suggestivity long before the improper cellblock confrontation, established an independent source for his in-court identification. *fn9 The record was confused as to whether Simpson also made a prior photographic identification of Frazier. Resolving the doubt in favor of Frazier, we rested our independent source finding for Simpson's identification on another ground, which is not available to support his identification of appellant Bryson. *fn10 Thus, under Frazier, the crucial question at any new trial will be whether Reznick and Simpson made reliable photographic identifications of appellant prior to the improper cell-block confrontations. The record leaves some doubt as to whether Bryson was ever identified from photographs.
Appellant also argues that the eyewitness identifications were obtained solely by exploitation of information learned from Frazier's confession. If Frazier's confession was obtained in violation of Miranda, he says the identifications were therefore tainted fruits. However, even if they are fruits of a poisonous tree, appellant is not entitled to have them excluded from evidence against him.
In Long v. United States, *fn11 we held that a defendant had no standing to challenge fruits of a violation of another party's Fifth Amendment rights. This conclusion was in accord with the long-standing rule that a testimonial privilege may be claimed only by the holder of the privilege. *fn12 The same rule has also been applied to Fourth Amendment violations. *fn13
Some recent Supreme Court opinions had appeared to portend a retreat from this rule, at least in Fourth Amendment cases and by extension in other constitutional cases as well. *fn14 But these portents were nipped in the bud by Alderman v. United States. *fn15 There, the Court held that only those whose own property or privacy has been invaded may obtain exclusion of the fruits of illegal wiretapping. *fn16 It said:
We adhere . . . to the general rule that Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. . . .
What petitioners appear to assert is an independent constitutional right of their own to exclude relevant and probative evidence because it was seized from another in violation of the Fourth Amendment. But we think there is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion. *fn17
Fifth Amendment rights are, a fortiori, personal rights, as the opinion of Mr. Justice Fortas in Alderman makes clear. *fn18 His dissent on the standing question would allow a broader vicarious assertion of Fourth Amendment rights because the Fourth Amendment exclusionary rule serves primarily to enforce the blanket prohibition against unreasonable searches and seizures for the benefit of the general public. *fn19 But he concedes that "only the person whose right has been violated can claim the protection of [the] . . . privilege [against self-incrimination]." *fn20 Indeed, the only ...