(dissenting).
I am unable to agree that the knowledge of Officer Fitzgerald at the time of arrest gave him probable cause to believe that Burbank had committed the crime. The description provided by the eyewitnesses, which lacked significant identifying characteristics, coupled with Fitzgerald’s prior knowledge of the defendant’s appearance, behavior and address does not constitute information sufficient for probable cause to believe that defendant committed the crime. Our system of justice may well need to develop a procedure which safeguards the rights of a suspect, but allows the police, with less than probable cause, to compel a suspect to be viewed by witnesses. In this case, however, no one has suggested that the detention of Burbank was less than full arrest.
If the arrest was unlawful, as I believe it was, the confession given subsequent to this arrest could still be admissible if the prosecution can demonstrate that it “was sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441, 454 (1963). The determination of whether the confession was made voluntarily, despite the illegal arrest, will depend on a consideration of several relevant factors besides absence of coercion: whether Miranda warnings were properly administered; the temporal proximity of the arrest and the confession; the presence of intervening circumstances; and the nature and purpose of the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416, 427-28 (1975).
The initial determination of the voluntariness of a confession, and subsequently its admissibility, must be made separately from and before it is admitted at trial. Jackson v. Denno, 378 U.S. 368, 391, 84 S.Ct. 1774, 788-89, 12 L.Ed.2d 908, 923-24 (1964). I must conclude from a careful examination of the transcript of the suppression hearing that no clear finding of voluntariness was made by the state trial court. The relevant excerpt hereinafter quoted demonstrates that the trial court ruled that the confession was admissible based on a prima facie though admittedly disputed showing that Miranda warnings were given and that no coercion was used. This finding by the court falls short of the constitutionally *368mandated procedure which is required “to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.” Jackson, supra, at 391, 84 S.Ct. at 1788, 12 L.Ed.2d at 924. The substance of the ruling made at the suppression hearing is contained in the following paragraphs:
It is surely a question that can be put before the jury, for the consideration of the jury at the time of the trial, when and if any statements are to be introduced, but the issue before the Court on the preliminary motion is an issue of law, and an issue as to whether the Court must exclude the statements from evidence, and, as I have stated before, it is a disputed question of fact, there is a prima facie showing of the Miranda warnings given and that there was no force or coercion used against the defendants, therefore, it seems to me that I have no alternative but to decide this question of law by admitting whatever statements there are, by granting their admissibility into evidence.
So, I will overrule the motion to suppress the confession.
The trial court was apparently conforming to the requirements as to admissibility of an allegedly coerced confession followed in many states before the decision in Jackson.
I reach this conclusion fully aware that the Supreme Court of Illinois, looking at the same record, was satisfied that: “The trial court heard this evidence and found that the statement was voluntarily given and not coerced. We do not find this determination to be against the manifest weight of the evidence.” People v. Burbank, 53 Ill.2d 261, 266, 291 N.E.2d 161, 165 (1972). We are, however, required to make an independent inquiry concerning a challenged state court procedure. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 759-60, 9 L.Ed.2d 770, 788-89 (1963). My reading of the ruling on the voluntariness of the confession compels me to conclude that the trial court did not resolve the disputed facts, and did not find the confession voluntary in fact.
Based on this analysis, I believe that the judgment ordering release should be affirmed, or at a minimum, the cause remanded for a hearing to determine the voluntariness of the confession.
APPENDIX
UNITED STATES OF AMERICA ex rel. RONALD BURBANK, Petitioner, vs. WARDEN, ILLINOIS STATE PENITENTIARY, Respondent.
No. 73 C 2527
MEMORANDUM OF DECISION
On October 17,1974, the Court of Appeals reversed the Order of this Court dismissing the instant petition for writ of habeas corpus for failure to exhaust state remedies. This case now comes before the Court on remand from the Court of Appeals to hold a hearing on the claims raised in the petition. United States of America, ex rel. Ronald Burbank v. Warden, Illinois State Penitentiary, 506 F.2d 1402 (7th Cir. 1974). Accordingly, pursuant to 28 U.S.C. Section 2243, this Court must now “summarily hear and determine the facts, and dispose of the matter as law and justice require.”
Originally, petitioner raised six claims in his habeas corpus petition. Two of the claims, which had previously been litigated in the Illinois Supreme Court adversely to the petitioner, have now been abandoned. (Petitioner’s Memorandum of Law at page 3). The remaining four claims are now before the Court and will be considered separately. The first three of these claims have been decided adversely to petitioner *369on appeal in the Illinois Supreme Court; the fourth claim has never been raised in state court proceedings.
I.
USE OF A COERCED CONFESSION
Petitioner alleges that the oral admissions used against him at trial were not the product of a “rational intellect and free will.” In support of this allegation, petitioner contends that prior to making any admissions he was advised that the son of the person killed was a police officer who was present in the station and that petitioner would be turned over to that officer if he did not confess.
At the hearing on the motion to suppress, detectives Fitzgerald and Luth testified that they gave petitioner Miranda warnings. (R. 13, 17, 19, 21-23). They also denied ever having made those threats to the petitioner.
Based on the testimony of these detectives the trial court denied the motion to suppress, stating:
The issue before the court is really two, first issue is were the Miranda warnings given, and second, is there a prima facie showing that whatever statements that were made by the two accused is there a prima facie showing that the statements were voluntary and trustworthy. [Tjhere is a prima facie showing of the Miranda warnings given and that there was no force or coercion used against the defendants . (R. 37-38).
Although there is some confusing language in the state court record, this court finds that the state court did in fact rule on the voluntariness of the admissions when it overruled the motion to suppress.
As the Illinois Supreme Court noted when confronted with this same issue on direct appeal:
The preliminary inquiry as to whether the defendant has been properly warned and whether he knowingly waived his rights is for the trial court. In making its determination the court need not be convinced beyond a reasonable doubt and its findings will not be disturbed unless it can be said that they are against the manifest weight of the evidence. [Citations omitted].
******
At the hearing on the motion, defendant stated that the officers told him the murdered man was the father of a policeman and unless he told them what they wanted they would turn him over to the deceased’s son. The officer stated that they may have told the defendant that the deceased was the father of a policeman but denied the alleged threats and denied telling defendant that the son was in the police station. The trial court heard this evidence and found that the statement was voluntarily given and not coerced. We do not find this determination to be against the manifest weight of the evidence. People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343.
Under the facts and circumstances of this case the Court finds that the petitioner was given a full and adequate hearing upon the voluntariness of his confession at the pretrial hearing on the motion to suppress. The Court agrees with the finding of the Illinois Supreme Court that the trial court properly found that the statement was voluntarily given and not coerced.
II.
UNCONSTITUTIONAL RESTRICTIONS ON CROSS-EXAMINATION
Petitioner contends that he was denied his Sixth Amendment rights when his cross-examination of a police officer at trial was improperly restricted. Specifically upon cross-examination of one of the interrogating police officers petitioner’s counsel sought to inquire into the circumstances surrounding the making of the oral admissions. Such inquiry was disallowed by the trial judge.
Under the facts and circumstances of this case, the Court finds that the prosecutor’s *370objection to defense counsel’s cross-examination of the police officer was properly sustained.
At the hearing on the motion to suppress the officer denied threatening the defendant in this manner. Accordingly, with the defendant choosing not to take the stand, the purpose of such leading questions— without any further proof of such threats and where the defendant knows of the officer’s earlier denial — is to create an unjustified inference in the minds of the jury that such threats were made. Such cross-examination has been held improper for prosecutors and defendants alike because the mere asking of the leading question concerning threats and the denial carry a harmful innuendo which is unsupported by any evidence. See People v. Burbank, 291 N.E.2d 161, at 166. Similarly the restriction on cross-examination did not amount to a constitutional deprivation like that found in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. See People v. Burbank, 291 N.E.2d 161, at 166; and McGautha v. California, 402 U.S. 183, at 213, 91 S.Ct. 1454, at 1470, 28 L.Ed.2d 711, at 729-30. Thus, the Court finds that the action of the trial court in sustaining the prosecutor’s objection to defense counsel’s line of interrogation does not amount to reversible error.
III.
RIGHT TO COUNSEL AT LINEUP
Petitioner contends that he had a right to counsel at the post arrest lineup, and that denial of that right rendered the resulting testimony about the lineup identification inadmissible at trial. Further, petitioner contends that the police purposely delayed the filing of charges against the defendant until after the lineup so as to vitiate his right to counsel at said lineup. This Court does not agree.
As the Illinois Supreme Court noted:
In the case before us the defendant had been arrested as a murder suspect sometime after 10:00 A.M. and following interrogation had been placed in a lineup between 2:00 and 2:30 P.M. the same day. He had not been formally charged with murder at that time. Under the decision in Kirby [Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411], his right to counsel as announced in Wade [U. S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149] and Gilbert [Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178] had not attached prior to the lineup. People v. Burbank, 291 N.E.2d 161, at 167-68.
Petitioner contends that the exclusionary rule of Wade and Gilbert should have been applied to the identification testimony in this case. The Court finds no evidence of an attempt by the police to vitiate defendant’s right to counsel at the lineup by deliberately delaying commencement of adversary proceedings. Under the facts of this case, a delay of four or four and one-half hours between arrest and lineup is not an unnecessary delay.
Further, the Court notes that the exclusionary rule of Wade-Gilbert is not a per se rule. The admissibility of the identification testimony depends upon whether the witness’ identification of the petitioner is based on a source independent of the witness’ observation of him at the identification procedure. United States v. Pigg, 471 F.2d 843 (7th Cir. 1973).
In reviewing the record the Court notes that the girls who identified the defendant not only had the opportunity to observe the defendant at the time of the crime but also their attention was called to the defendant by virtue of their interest in good looking boys. The girls stated that their attention had been called to the defendant before he entered the store where the crime took place because they thought he was good looking. They waited in front of the store for defendant to come out and when he did they recognized him again as the man who entered. They described him as wearing a gold shirt and dark trousers and as having curly hair.
Under such circumstances there was strong evidence that the identification was based upon this incident. Since the identi*371fication testimony of the witnesses was also based upon an identification independent of the lineup, defendant’s attempts to exclude such testimony were properly overruled. See United States v. Pigg, supra. Under the totality of the circumstances, the Court finds that the failure of the trial court to exclude identification testimony does not amount to reversible error.
IV.
UNLAWFUL ARREST CLAIM
Petitioner alleges that his arrest was not based upon probable cause but he was merely arrested as a suspect in a murder case. Therefore, petitioner contends that his arrest was unlawful and that all fruits of such an arrest are inadmissible at trial. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).
The Court finds that the state court record is insufficient upon which to make a finding on this claim since the state court did not deal with this issue. Accordingly, the Court finds that an evidentiary hearing is necessary on the claim of unlawful arrest.
CONCLUSION
Upon review of the state court record and all the briefs on file in this cause, the Court finds that as to the claims of use of a coerced confession, improper restriction of cross-examination, and deprivation of right of counsel at the lineup, the instant petition for writ of habeas corpus must be denied. However, as to petitioner’s claim of an unlawful arrest, which was not raised in the state court proceedings, the Court finds there to be insufficient evidence in the state court record upon which to make a ruling at this time. Accordingly, ruling upon the claim of unlawful arrest will be deferred until an evidentiary hearing can be held on that claim.
/s/ William Lynch
Judge, United States District
Court
Dated: May 30, 1975.