(specially concurring in an opinion in which McFADDEN, J., concurs).
I concur with the majority’s affirmance of the conviction. However, I emphatically disagree with that language condemning the police station identification and holding such procedure defective.
It should be pointed out initially that this case does not involve right to counsel. In my judgment the majority is overly entranced with the “landmark” cases of United States v. Wade, supra, and Gilbert v. California, supra. I suggest that neither Wade nor Gilbert are persuasive nor do they furnish any precedential value for the case at bar. The Wade court was badly split and seven opinions were filed. The individual justices concurred with and dissented from various parts of other opinions so that they did not reach a clear holding. Likewise Gilbert resulted in a badly split court with six individual opinions being filed. In my judgment Wade and Gilbert, if they stand for anything at all, apply only in situations where an accused was not furnished counsel at post-indictment lineups. Any loose language in Wade or Gilbert purporting to extend their holdings beyond such narrow confines has been repudiated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L. E.2d 411 and most recently in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Although the majority opinion alludes to Stovall v. Denno decided the same day as Wade and Gilbert, it unfortunately does not furnish the factual circumstances from which that case arose. In Stovall a doctor and his wife were stabbed. The doctor died and the wife was hospitalized for surgery. The defendant was arrested less than 24 hours later and brought to the hospital room for identification by the wife:
“Petitioner was handcuffed to one of five police officers who, with two members of the staff of the District Attorney, brought him to the hospital room. Petitioner was the only Negro in the room. Mrs. Behrendt identified him from her hospital bed after being asked by an officer whether he ‘was the man’ and after petitioner repeated at the direction of an officer a ‘few words for voice identification.’ None of the witnesses could recall the words that were used. Mrs. Behrendt and the officers testified at the trial to her identification of the petitioner in the hospital room, and she also made an in-court identification of petitioner in the courtroom.
“ * * * He claimed that among other constitutional rights allegedly denied him at his trial, the admission of Mrs. Behrendt’s identification testimony violated his rights under the Fifth, Sixth, and Fourteenth Amendments because he had been compelled to submit to the hospital room confrontation without the help of counsel and under circumstances •which unfairly focused the witness’ attention on him as the man believed by the police to be the guilty person.” 388 U.S. 293, at 295-296, 87 S.Ct. 1967, at 1969, 18 L.Ed.2d 1199.
The court stated:
“We turn now to the question whether petitioner, although not entitled to the application of Wade and Gilbert to his case, is entitled to relief on his claim that in any event the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. * * * (Emphasis supplied)
“ ‘Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, “He is *534not the man” could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.’ ” 388 U.S. 293, at 301-302, 87 S.Ct. 1967, at 1972-1973, 18 L.Ed.2d 1199.
Obviously the facts in Stovall are strikingly similar to the case at bar, with the exception of the hospitalization of the identifying witness.
The majority opinion alludes to Kirby v. Illinois but suggests that Kirby should be restricted solely to consideration of the failure to furnish counsel when a suspect is subjected to pre-indictment confrontations. The Kirby court refused to hold that the right to counsel extended to a pre-indictment confrontation. In Kirby two men robbed one Shard on the street. The following day Shard was brought to the police station for an identification.
“Immediately upon entering the room in the police station where the petitioner and Bean were seated at a table, Shard positively identified them as the men who had robbed him two days earlier. No lawyer was present in the room, and neither the petitioner nor Bean had asked for legal assistance, or been advised of any right to the presence of counsel.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, at 1880, 32 L.Ed.2d 411.
The court in Kirby said:
“In the present case we are asked to extend the Wade-Gilbert per se exclusionary rule to identification testimony based upon a police station showup that took place before the defendant had been indicted or otherwise formally charged with any criminal offense.” 92 S.Ct. at 1879.
“A pretrial motion to suppress Shard’s identification testimony was denied, and at the trial Shard testified as a witness for the prosecution. In his testimoney [sic] he described his identification of the two men at the police station on February 22, and identified them again in the courtroom as the men who had robbed him on February 20.” 92 S.Ct. at 1880.
“In this case we are asked to import into a routine police investigation an absolute constitutional guarantee historically and rationally applicable only after the onset of formal prosecutorial proceedings. * * * We decline to depart from that rationale today by imposing a per se exclusionary rule upon testimony concerning an identification that took place long before the commencement of any prosecution whatever.” 92 S.Ct. at 1882-1883.
The court continued:
“What has been said is not to suggest that there may not be occasions during the course of a criminal investigation when the police do abuse identification procedures. Such abuses are not beyond the reach of the Constitution. * * * When a person has not been formally charged with a criminal offense, Stovall strikes the appropriate constitutional balance between the right of a suspect to be protected from prejudicial procedures and the interest of society in the prompt and purposeful investigation of an unsolved crime.” 92 S.Ct. at 1883.
The United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), effectively repudiated the majority’s philosophy herein. Five of the justices supported the majority view in Biggers while three concurred in a single dissent. The majority stated:
“Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for *535the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process. (Emphasis supplied)
“What is less clear from our cases is whether, as intimated by the District Court, unnecessary suggestiveness alone requires the exclusion of evidence. While we are inclined to agree with the courts below that the police did not exhaust all possibilities in seeking persons physically comparable to petitioner, we do not think that the evidence must therefore be excluded.” 93 S.Ct. at 382.
I suggest that the holdings of Wade and Gilbert are suspect and in any event only apply to cases involving line-up procedures in the absence of counsel which take place a considerable period of time after the initial identification opportunity and in any event after the institution of formal proceedings against a defendant. Stovall, as reiterated in Kirby and Biggers, applies to a showup or head-to-head confrontation a short time following an initial identification opportunity where the interest of society is served by the “prompt and purposeful investigation of an unsolved crime.” Further, as stated in Biggers “the admission of evidence of a showup without more does not violate due process.” And “unnecessary suggestiveness alone [does not in and of itself] require the exclusion of evidence.”
I also regret the majority’s attempt to find solace in this court’s opinion in State v. Raine, 93 Idaho 862, 477 P.2d 104. In Raine the defendant had attempted to pass a forged check at a store in Coeur d’Alene. The proprietor said he intended to call the bank and thereupon the defendant ran from the store. Later that day the proprietor went to the police station and identified the defendant in a head-to-head confrontation. “There was no official ‘lineup’ conducted by the police and no showing that a viewing was planned.” At trial evidence of that police station identification was admitted. The defendant urged error in denial of his motion to suppress the proprietor’s police station identification. This court stated:
“This Court does not condone highly suggestive police station identification procedures. However, assuming arguendo that such was the case (which is by no means clear from the record), according to the applicable case law, appellant’s contentions are without merit.” 93 Idaho 862, at 863, 477 P.2d 104, at 105.
I believe the majority’s finding that the police station identification herein is defective is susceptible to the critical language of Mr. Justice White in Wade:
“The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information. It matters not how well the witness knows the suspect, whether the witness is the suspect’s mother, brother, or long-time associate, and no matter how long or well the witness observed the perpetrator at the scene of the crime. The kidnap victim who has lived for days with his abductor is in the same category as the witness who has had only a fleeting glimpse of the criminal. Neither may identify the suspect without defendant’s counsel being present. The same strictures apply regardless of the number of other witnesses who positively identify the defendant and regardless of the corroborative evidence showing that it was the defendant who had committed the crime.
“The premise for the Court’s rule is not the general unreliability of eyewitness identifications nor the difficulties inherent in observation, recall and recognition. The Court assumes a narrower evil as the basis for its rule — improper police suggestion which contributes to erroneous identifications. The Court-apparently believes that improper police *536procedures are so widespread that a broad prophylactic rule must be laid down, requiring the presence of counsel at all pretrial identifications, in order to detect recurring instances of police misconduct. I do not share this pervasive distrust of all official investigations.” 388 U.S. 218, at 251-252, 87 S.Ct. 1926, at 1944-1945, 18 L.Ed.2d 1149.
It appears to me that the inadvertent exposure of witness Downs to the suspects in this case within two hours of the time of the commission of the robbery constituted a perfectly natural reaction on the part of law enforcement personnel. Even if the exposure had been deliberate, rather than inadvertent, I would still hold that the identification procedure at the police station was not defective.
The majority opinion states:
“These suggestive circumstances were too influencing, too inclined to prompt an erroneous identification for us to conclude that this manner of identification was proper.”
A disinterested person saw what he believed to be an armed robbery taking place. At some personal risk to himself he gained an opportunity to observe the robbers and noted the license number of their car. Based on his observations the police were enabled to promptly take the suspects into custody approximately two hours later. The witness went to the police station to make photographic identification. The suspects when arrested were naturally brought to the police station. Since the suspects had supposedly been involved in an armed robbery involving threats to kill, they were manacled and their weapons taken from them. I thoroughly disagree with the majority’s statement that these were “suggestive circumstances” which were "too influencing, too inclined to prompt an erroneous identification.”
I believe that such questions were for the jury, as were additional questions: did the witness have a sufficient opportunity to observe the defendants at the place of the crime; how long after the initial identification did the witness next have an opportunity to see the suspects; what was the condition of the witness’ eyesight; what was the available lighting at the scene of the crime. I believe it is patent error for this court on the basis of a cold record without any opportunity to hear, see and observe the witnesses, including the defendants who took the stand, to denominate these circumstances suggestive, erroneous, and defective. The rule announced by the court today is overbroad. It suggests that any head-to-head identification without a formal lineup is defective, suggestive and too inclined to prompt an erroneous identification. The majority finds this so regardless of where or how soon any identification might take place following a crime. If, for example, in the case at bar the police arrived at the scene of the crime and apprehended the suspects two blocks from the store, the Witness Downs could not have identified them on the spot without a formal lineup. Thus, the police would have had no probable cause upon which to detain or arrest the suspects.
The rule announced today is based on the premise that all eyewitness identifications are unreliable and susceptible to improper police suggestions. While I am not so naive as to believe police misconduct does not exist, I do not share the majority’s pervasive distrust of all law enforcement investigations.
The factual pattern of this case is not dissimilar from Stovall v. Denno, Kirby v. Illinois and Neil v. Biggers. The latest decisions of the United States Supreme Court do not require the language of the majority opinion, nor the announcement of this court’s rule of “defective” identifications.