Kirby v. Illinois

Mr. Justice Stewart announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist join.

In United States v. Wade, 388 U. S. 218, and Gilbert v. California, 388 U. S. 263, this Court held “that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel and calls in question the admissibility at trial- of the in-court identifications of the accused by witnesses who attended the lineup.” Gilbert v. California, supra, at 272. Those cases further held that no “in-court identifications” are admissible in evidence if their “source” is a lineup conducted in violation of this constitutional standard. “Only a per se exclusionary rule as to such testimony can be an effective sanction,” the Court said, “£o assure that law [*684] enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.” Id., at 273. In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.

On February 21, 1968, a man named Willie Shard reported to the Chicago police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler’s checks and a Social Security card. On February 22, two police officers stopped the petitioner and a companion, Ralph Bean, on West Madison Street in „ Chicago.[1] When asked for identification, the petitioner produced a wallet that contained three traveler’s checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard’s name on them were also found in Bean’s possession. When asked to explain his possession of Shard’s property, the petitioner first said that the traveler’s checks were “play money,” and then told the officers that he had won them in a crap game. The officers then arrested the petitioner and Bean and took them to a police station.