I agree that there is no merit in the appeal save the issue of identification by the use of photographs. As to it, I adhere to the views I have expressed in dissent in United States v. Collins, 416 F.2d 696 (4 Cir. 1969), and United States v. Marson, 408 F.2d 644 (4 Cir. 1968), and I would reverse. See also, United States v. Ash, 461 F.2d 92 (D.C. Cir. 1972); contra United States ex rel. Reed v. Anderson, 461 F.2d 739 (3 Cir. 1972) (overruling United States v. Zeiler, 427 F.2d 1305 (3 Cir. 1970).
Factually, this case is unlike United States v. Canty, 430 F.2d 1332 (4 Cir. 1970). Here defendant, although in custody on another charge, was suspected of having committed the crime for which he was prosecuted and convicted. A police officer had questioned him about it; and, as a result of questioning and an identification furnished by the victim, the police officer took defendant’s picture and exhibited it to the identifying witness. I think that defendant’s right to counsel had attached.