concurring in part and dissenting in part:
While I agree in the result reached by the majority in its treatment of the law in parts I, II, and IIIA of its opinion, I cannot assent to the imprecise handling of the law in the remainder thereof and therefore note my disapproval.
Today’s holding gives to any judge, in any court, at any time, the power to issue an order regarding the dissemination of an arrest record of a defendant who, for whatever reason, has his case dismissed. It is my view that such a grant of power in this case neither conforms to the applicable law nor adheres to a sound approach to criminal justice.
The majority, in treating the case law in this area in footnote fashion,1 lays down valuable precedent for the propositions that: (1) determinations regarding arrest records of defendants are ancillary to a criminal court’s principal jurisdiction of determining guilt or innocence of a particular individual; (2) orders will issue requiring certain agencies charged with maintaining criminal records not to disseminate those records where the criminal proceeding terminated in favor of that individual; and (3) these agencies, through representation by the city attorney, are before the court for jurisdictional purposes even though not before the court as a named party. The precedential value of these holdings is readily apparent and footnote citations of authority coupled with seven or eight pages of policy discussion hardly seem adequate to fortify so far-reaching a decision.
The court, apparently striving to achieve a legal first in treating the significant legal question of whether de*747terminations with respect to an arrest record are ancillary to a criminal proceeding, outlines four standards it utilizes in resolving that question, and each of which, I suppose, must be met before ancillary jurisdiction attaches. They say that a matter is ancillary where it arises from, forms the basis for, or is an integral part of the main proceeding and to this extent, I agree. An arrest record clearly forms the basis out of which prosecution thereon arises. Beyond this point I cannot go for the court then proceeds to say that a matter is ancillary where its resolution can be determined without a new and substantial fact-finding proceeding. If this be so, then it is my position that an order barring distribution of an arrest record cannot be ancillary to the main proceeding because it could not be entered without a new and substantial fact-finding proceeding by the court. This is so because when a court sits in law to determine guilt or innocence of a party, it reviews certain facts relative to proof of the elements of a crime and its jurisdiction extends only to the making of that determination fairly. However, when the question of dissemination of the accused’s arrest record is undertaken, the court sits “in equity,” so to speak, and a whole new fact-finding proceeding begins. Questions must be answered such as: who keeps the records, where, and for how long? How is the record kept? Who has access to the record and who is notified of the arrest? Who, if anyone, may obtain copies, what do they look like, and do they accurately portray the disposition? Was there probable cause for the arrest or was it maliciously prosecuted? What are the police needs for the records? Do these needs bear a rational connection to the needs of society in criminal detection and prevention? These and other questions2 must be looked into by the court so as to fairly decide these issues, and to say that these questions are neither new nor substantial with respect to the main proceeding is an ingenious approach to what “fact-finding” actually entails.
The court goes on to say that a matter is ancillary where the order would not operate to deprive a party of a substantial procedural or substantive right. If this also is true then the order in question cannot be ancillary for a party to that proceeding is the public trust which, by statute, has an important substantive right in maintaining records of arrests and in using them consistent with the promotion of public safety and welfare. When an order is entered in derogation of that use, without a full fact-finding hearing, the public is deprived of due process of law. Finally, the majority holds that a matter will be ancillary where its resolution must be effected to protect the integrity of the main proceeding or its disposition, without such resolution, would be frustrated. If this, too, is true then I cannot see how dissemination of an arrest record with the disposition thereof properly noted could serve either to frustrate the disposition of the main proceeding or to penetrate its integrity. The fact remains, regardless of the ultimate outcome, that the defendant was arrested.
“In the absence of statutory direction * * * the power to maintain * * * a city police system carries with it the right * * * to exercise reasonable discretion in such maintenance * * *. Courts should be cautious about interference * * *.” State ex rel. Mavity v. Tyndall, 224 Ind. 364, 366, 66 N.E.2d 755, 757 (1946). As the majority notes, few courts have sought to interfere and then, only when the arrest was a form of harassment of Negroes seeking to exercise their voting rights,3 or where the attempt to keep the arrest record of an individual amounted to a form of spite.4
*748Courts have traditionally restrained themselves from entering this area on the theory that “it is the daily practice of police officers and detectives of crime to use [arrest records] for the discovery and identification of criminals, and that, without such means many criminals would escape detection. * * * It is one of the usual means employed in the police service of the country, and it would be a matter of regret to have its use unduly restricted upon any fanciful theory. * * * ” Shaffer v. United States, 24 App.D.C. 417, 426 (1904). In 1909 a Maryland court followed the reasoning of Shaffer and noted that the “populous communities which now exist, and the modern facilities for swift and frequent communications and rapid transit, afford hitherto unknown facilities for evading arrest or fleeing from justice, which should be offset in the public interest by providing the agencies, charged with the duty of preserving the public peace and arresting persons reasonably suspected of the Commission of crimes, with the most efficient means of detecting and identifying them * * Downs v. Swann, 111 Md. 53, 55, 73 A. 653, 655, 23 L.R.A.,N.S., 739 (1909). Was that statement any less pertinent sixty years ago than it is today when a man might fall from an assassin’s bullet in Memphis, and his killer thereafter be apprehended in London?
The court here leaves the impression that it also does not choose to enter this area in any substantial degree as it leaves open the resolution of the scope of this problem for the District of Columbia Court of Appeals on remand. However, the court does hold that it is “apparent from the Duncan Report, the testimony at the compliance hearing, and even from statements in the District’s brief, that in the District of Columbia restraints may be put on dissemination of arrest records * * (Citation omitted.) (Majority opinion at 22.) With this statement I have'no great quarrel for I believe that a court of the District of Columbia; namely, the United States District Court for the District of Columbia, does have the power to enjoin unlawful police practices but only in cases where the Police Department is made a party and the many issues are fairly tried.5 What I disagree with in the court’s opinion is that the D.C. Court of General Sessions, sitting in criminal division, has the power to meet and fairly decide the policy, legality and even the constitutionality of the complained of practices through its assertion of ancillary jurisdiction. The police department is lawfully in possession of these records and only an independent fact-finding proceeding before a court of general equity jurisdiction can be used to test any subsequent unlawful use thereof.6 I, too, abhor any practice of the Police Department which serves to make available copies of an accused’s arrest record, indiscriminately, to the private sector of the community. A man’s arrest record, under our system of innocence until proven otherwise, should be of no consequence to those not engaged in official crime prevention and detection, but I am unwilling to replace an evil that exists with an equally evil substitute. However, as a means for identification and apprehension of criminals, an arrest record does serve the police community as a most valuable tool. Nation, state and city-wide crime detection and prevention are based upon a system of information and communication. Statistical experience tells them that persons with arrest records commit a higher percentage of crimes than persons who do not have arrest records.7 When a young lady notifies the police that eight young nurses have been brutally murdered in their dormitory by a man of a given description, the police take that description and any finger prints *749taken from the scene and disseminate that information to police officials in the outlying counties and states. Armed with that information, fervent prayer and hard work, the police ofttimes apprehend the killer. Anything tending to disrupt that system should not be lightly undertaken.
The majority opinion, in any event, proceeds to pile brushwood around the stake of effective law enforcement. In the case before Judge Alexander the information was dismissed on the ground that it was brought by an improper pros-ecutorial authority. At no time was the allegation made that the arrest here in question was improper. Insofar as I can determine there is no authority for the holding of an arrest invalid where prosecution thereon was frustrated by a procedural mishap. The appellant, Morrow, not only succeeded in evading the truth but also achieved the issuance of an order directing virtual expungement of his arrest record. If such treatment is accorded and condoned in this case, then every defendant, whose ease terminates in his behalf, has the right, by citing In re Alexander, to invoke the “ancillary jurisdiction” of the trial court to enjoin dissemination of his arrest record. I cannot condone such treatment for it is my view, as I have said, that should a defendant desire to enjoin such dissemination on the grounds of illegal arrest or even where a guilty defendant feels that the dissemination is violative of his rights and the applicable law, each should come into the district court and press his right. That is exactly what that court was created for and when it is properly utilized both the system and the right are upheld. To hold otherwise is to transform a government of law into a gobernó a batere — a government to be fought.
Finally, I turn to the question of whether an order prohibiting dissemination of police records can run against the Police Department where it is not a party named. The majority’s position is that since the Corporation Counsel represented the District of Columbia government in the prosecution of this case and since the Police Department is merely a branch of the District government, it can be bound by an order since its duties are relevant to the main proceeding. What this position fails to realize is that the Corporation Counsel wears many hats, and even though each hat bears the District of Columbia label, each signifies a different function. The division which seeks to prosecute would not be the division which sought to defend the Police Department practices. I think fundamental fairness to all interests demands notice and participation by that branch charged with the duty being challenged. For these reasons, I would, respectfully, dissent in .part.
. See majority opinion notes 44 and 45.
. It took some 80 pages of questions and answers before the D.C. Court of General Sessions began to get the Police Department procedures in proper perspective!
. United States v. McLeod, 385 F.2d 734 (5th Cir. 1967).
. United States v. Kalish, 271 F.Supp. 968 (D.P.R.1967).
. Gomez v. Layton, 129 U.S.App.D.C. 289, 394 F.2d 764 (1968).
. See Voelker v. Tyndall, 226 Ind. 43, 75 N.E.2d 548 (1947).
. See Uniform Crime Reports — 1967, p. 35 (Federal Bureau of Investigation annual publication of Crime in the United States).