(specially concurring):
While I concur in the judgment and opinion of the Court, I add a statement of my own lest I be understood to have abandoned the views I expressed in dissent in Marson and Collins.*
At the time that photographs were shown the witnesses, I would infer that the authorities exhibiting the photographs knew that the defendant was in custody in the District of Columbia on an unrelated charge, because they arranged to obtain the photographs from the District of Columbia authorities. But the defendant was not under arrest for this robbery and, as found by the district judge, he had not become particularly suspect of this crime. In my view, the obligation to provide him with counsel (or to obtain a valid waiver of the right to counsel) before exhibiting his photograph for this charge had not yet attached.
The decision in United States v. Zeiler, 427 F.2d 1305 (3 Cir. 1970), is additional support for my position. In addition to the majority’s view in Marson and Collins, United States v. Bennett, 409 F.2d 888 (2 Cir. 1969); United States v. Baker, 419 F.2d 83 (2 Cir. 1969); United States v. Ballard, 423 F.2d 127 (5 Cir. 1970); McGee v. United States, 402 F.2d 434 (10 Cir. 1968), cert. den., 394 U.S. 908, 89 S.Ct. 1020, 22 L.Ed.2d 220 (1969); and Rech v. United States, 410 F.2d 1131 (10 Cir. 1969), are to the contrary.