dissenting:
The District Court held that the in-court identifications of appellant as *1049one of the robbers by five eyewitnesses were admissible as based in each instance on a source independent of previous identifications of appellant by these witnesses at two lineups which the court had found tainted,1 and, also, as to three of the witnesses, independent of photographs of appellant they had viewed but which were missing from the police files and were not available for inspection by the court. This court affirms, although none of the five identifying witnesses ascribed their identification at trial to a source independent of the suggestive lineups or missing photographs. I respectfully dissent.
At the conclusion of a pretrial suppression hearing at which the lineup identifications were considered the District Court’s ruling appears from the following exchange:
[The Assistant United States Attorney] : . . . now that the Court has suppressed the lineup, I wonder if the Court would make a specific finding that the record that we have before us has shown, by clear and convincing evidence, independent source?
The Court: I believe that is so, and I will make such a finding.
* * * * * *
I have no question with the independent source of any of those witnesses.
Defense counsel duly objected. There has been no testimony at any time by any of the witnesses that their identifications were or would be at trial based upon a source independent of the lineups which offended due process. One of the five witnesses, Mr. McGriff,2 was asked at the suppression hearing the basis for his identification. He replied: “It was based on what I saw during the robbery and based on the photos that I have seen of him since then.” Neither the District Court nor counsel similarly questioned the other witnesses.
As held in United States v. Sanders, 156 U.S.App.D.C. 210, 479 F.2d 1193 (1973), following United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and see Gilbert v. California, 388 U.S. 263, 272-273, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the identifying evidence at trial would be admissible only upon clear and convincing evidence adduced by the Government that it would rest upon a source independent of the pretrial tainted identifications. To this effect, in addition to United States v. Sanders, supra, are our cases of United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92, 105-106 (1972) (en banc), rev’d on other grounds, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973); Mason v. United States, 134 U.S.App.D.C. 280, 414 F.2d 1176, 1182 (1969); Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230 (1968) (en banc). Cf. Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). The court now departs from this previously established framework within which this case falls.
The question before this court is not whether the witnesses could have identified appellant independently of the tainted lineups and, as to three witnesses, the missing photographs, but whether it was established by clear and convincing evidence that their trial identifications were in fact independent of such influences. We know from his own statement that it was not in the case of Mr. McGriff, and we have no testimony one way or another from the other four witnesses. The five witnesses testified at the trial upon the background of their recollections of the robbery, their subsequent view of the tainted lineups, and, as to three of the witnesses, their viewings of the missing photographs, and we have no evidence, much less clear and convincing evidence, that these identifications were not based on this mingling of both tainted and untainted observations of appel*1050lant. At no time was there any inquiry as to the possible effect of the tainted lineups or missing photographs except in the case of Mr. McGriff.3
After the District Court suppressed the lineup identifications as illegal and tainted it was within the court’s competence to decide that the taint was not so heavy as to preclude trial identifications stemming in each instance from a source independent of the taint, and the missing photographs in the case of three of the witnesses; but I think it was not within the court’s competence to rule on the record of the suppression hearing that the trial identifications would in fact stem from such a source independent of these influences.
The majority opinion considers the several factors enumerated in Wade which bear upon whether an in-court identification is fatally tainted by a prior unlawful lineup, and states that here the possibility that the eyewitnesses’ in-court identifications were tainted seems slight. Under Wade, however, the taint in the present case stemming from the suppressed lineups persisted unless it were established by clear and convincing evidence that it would not affect the prospective trial testimony of the witnesses. The taint was deep enough to require suppression of the lineup identifications as a violation of due process. To state on the appeal that the possibility of tainted in-court identifications seems slight does not comply with the rule of proof by clear and convincing evidence of an independent source. Moreover, the court omits reference to the missing photographs which had also been shown to three of the witnesses.
It is altogether possible that the eyewitnesses, excluding Mr. McGriff, might have been able to identify appellant solely by what they remembered of the robbery, eliminating from their minds the subsequently tainted source and the use of the missing photographs, but their ability to do so was not developed. Therefore, we must assume that their identifications at trial were a conglomeration of all that had gone before. Even in cases where the witnesses have explicitly testified that the in-court identification is independent of intervening tainted identification procedures this court has refused to allow the in-court identification to stand because the showing was not clear and convincing. United States v. Gambrill, 146 U.S.App.D.C. 72, 449 F.2d 1148 (1971); United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363 (1971).4
. There were two lineups. As to one the court specifically ruled he would “eliminate it for identification.” As to an earlier one, there is some confusion, but for our purposes it is resolved by a stipulation of counsel on the appeal that the photographs of both lineups were suppressed.
. At one of the lineups he had identified the “wrong suspect.”
. Were lie the only one of the five who was affected by the taint, the harmless error rule might have been successfully invoked. Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. The court adverts in footnote 26 to my reference to Mr. McGriff’s testimony that his identification was based on photographs seen since the robbery as well as on what he saw during the robbery. The advertence of the court is that an “immeasurable quantum” is likely to be added to the certainty of a witness’ identification by any viewing of any photograph at any time, but “these trace residuals the Supreme Court seemed willing to accept as not ‘impermissibly suggestive.’ ”
It is demonstrable that the record before the District Court and this court in the present case furnishes no basis for a suggestion even that Mr. McGriff’s reliance in part upon photographs in his identification of appellant was of an “immeasurable quantum” or within the compass of “trace residuals.” Two sets of photographs were seen by Mr. McGriff. One set was composed of separate pictures of two lineups, each of which lineups the District Court found was so impermissibly suggestive as to violate due process of law. This finding is undisturbed. The other set of photographs was missing from police files and was not available to the District Court or to this court to view. Accordingly there is no basis whatsoever for a suggestion that those photographs were not impermissibly suggestive.