(concurring).
Since I am not certain that Judge Seitz and I interpret the Supreme Court lineup decisions in the same way an expression of my view of this case is in order.
*4In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) the Supreme Court fashioned an exclusionary rule of evidence to deter law enforcement authorities from exhibiting an accused to a witness before trial for identification purposes without notice to and in the absence of counsel. The Wade rule was aimed at minimizing the possibility of a conviction resting on a mistaken identification by preventing unfairness at the pretrial confrontation and assuring meaningful examination of the identification witness’ testimony at trial. The exclusionary rule was qualified, however, to the extent that assuming the law enforcement authorities had conducted a lineup in the absence of counsel, the in-court eyewitness testimony would nevertheless be admissible at trial if the court first determined that this identification was not tainted by the illegal lineup, but had an independent origin.
In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) the Court reiterated that it was fashioning a prophylactic rule. It held that, as in Wade, the in-court identification testimony was admissible, despite a violation of the rule requiring the presence of counsel if it could be shown, even after the trial, that the in-court identification had an independent source. Testimony that certain witnesses had identified Gilbert at the now illegal lineup, however, could not be admitted. This testimony was excluded not because it was unreliable — the court never reached that point — but because it was “. . . the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’ Wong Sun v. United States, 371 U.S. 471, 488 [83 S. Ct. 407, 9 L.Ed.2d 441].” Gilbert v. California, supra, at 272-273, 87 S.Ct. at 1956-1957.
Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967) makes clear that the Wade and Gilbert cases lay down a prophylactic rule not dependent on reliability of the testimony or fairness of the lineup. It holds that the Wade rule is not retroactive, and that the admissibility of eye witness testimony not prohibited by the Wade exclusionary rule but following some pre-trial confrontation, is measured by a due process totality of circumstances test.
In this case there was ample opportunity to cross examine the witness Tom-sic, and nothing in the totality of circumstances suggests that the admission of the testimony violated the due process test laid down in Stovall. The attorney for appellant sought, however, the opportunity for a Wade hearing. By this I understand that he desired the opportunity to establish that the law enforcement authorities arranged the confrontation between Tomsic and the appellant at the courtroom door. If he could have established this fact, then the government would have had to establish that Tomsic’s in-court identification had an origin independent of the confrontation.
Judge Seitz’s opinion orders a remand for a hearing to determine whether the circumstances of Tomsic’s encounter with appellant was a “critical confrontation” within the holding of United States v. Wade, supra. I understand that this hearing will be directed not at whether the corridor confrontation was unduly suggestive, but solely at whether the law enforcement authorities arranged it. If they did not the inquiry should cease. If they did, then the government must show that Tomsic’s in-court testimony had an independent origin.
This case should not be read as holding that in the absence of a Wade violation a defendant is entitled to a separate Stovall v. Denno hearing outside the presence of the jury.