(concurring). As to the right to counsel at pretrial police “lineups” or “showups,” the United States Supreme Court has laid down a rule bind*108ing upon all courts in the land. As stated in Wade,1 rephrased in Gilbert,2 repeated in Simmons,3 the rule is that, absent an intelligent waiver, presence of counsel is required at a post-indictment lineup.
The repeated reference to post-indictment lineups is more than something thrown in for good measure. Any post-indictment proceeding clearly is a part of the ac-cusatorial phase of the criminal process. This involves more than recognizing that a post-indictment lineup is more a part of the preparation for trial than a matter of identifying a possible suspect. It involves the availability or procurability of counsel to be present at the lineup without extended delay. As was the ease in Wade at that stage, counsel will in most cases have been appointed by the court or retained by defendant and thus counsel’s presence at the lineup can easily be arranged. If counsel has not been retained or court appointed, the certainty of an early appearance before a magistrate precludes the possibility of any lengthy delay in arranging the lineup. At earlier stages the practical difficulties of appointing or arranging for the presence of counsel appear formi*109dable. Thus the limiting of the Wade-Gilbert rule to post-indictment situations has sound reasons to recommend it. Regardless of the reasons, the limitation is stated in the rule. If the rule is to be extended to earlier stages or other situations, the court that authored the rule should do the extending.
It is clear that a post-warrant lineup in Wisconsin is the equivalent of the post-indictment situation involved in Wade-Gilbert.4 However, here the majority goes beyond the rule as stated in Wade-Gilbert to find a right to counsel in a post-arrest, pre-warrant or pre-indictment situation. The trip beyond the Wade-Gilbert rule is short enough, limited to the special fact situation of this case, but it is a trip that the writer would not make.
The majority opinion is limited to lineups, presumably limited to police station lineups, and certainly limited to lineups that are not a part of the “investigatory stage of the criminal process.” The trouble will be that police officers have no crystal ball to determine whether a particular post-arrest lineup will or will not subsequently be found to have been investigatory rather than accus-atorial in purpose. If law officers elect to run this gauntlet, and, if the lineup is later held to have been held for purposes other than that of simply identifying a suspect, an in-court identification based on such lineup is inadmissible, and a guilty person may escape conviction. Equally important, if the probability of challenge, the possibility of unconstitutionality, plus the practical difficulties of arranging for appointment of counsel at the post-arrest stage, cause a shying away from all post-arrest lineups, those not guilty will have lost the early opportunity of being cleared which a fair lineup presents. The substitution of identification from police department “mug files” may prove to be a pyrrhic victory, at least for the innocent. A lineup can send a suspect home *110cleared of involvement as well and as often as it can result in Ms being1 held for trial.
The Wade-Gilbert rule, applying to post-indictment or post-warrant situations, is clear and definite — in its limits as well as in its application. The same cannot be said for this majority’s extension of the rule that requires law officers to determine in advance whether a particular lineup is investigatory or accusatory in nature. Effective law enforcement will be hampered, and the search for truth will not be served by the majority holding. The Illinois Supreme Court has expressly limited Wade and Gilbert to post-indictment lineups.5 Unless or until the United States Supreme Court extends its Wade-Gilbert rule, the writer would limit the right to counsel to post-indictment or post-warrant situations.
“. . . there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was ‘as much entitled to such aid [of counsel] ... as at the trial itself.’ . . .” (Emphasis supplied.) United States v. Wade (1967), 388 U. S. 218, 236, 237, 87 Sup. Ct. 1926, 18 L. Ed. 2d 1149.
“. . . We there [United States v, Wade] held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel . . . .” (Emphasis supplied.) Gilbert v. California (1967), 388 U. S. 263, 272, 87 Sup. Ct. 1951, 18 L. Ed. 2d 1178.
“. . . The rationale of those cases [i.e., United States v. Wade and Gilbert v. California] was that an accused is entitled to counsel at any ‘critical stage of the prosecution,’ and that a post-indictment lineup is such a ‘critical stage.’ ” (Emphasis supplied.) Simmons v. United States (1968), 390 U. S. 377, 382, 383, 88 Sup. Ct. 967, 19 L. Ed. 2d 1247.
See Wright v. State, ante, p. 75, 175 N. W. 2d 646.
People v. Palmer (1969), 41 Ill. 2d 571, 244 N. E. 2d 173; People v. Townsend (1969), 111 Ill. App. 2d 316, 250 N. E. 2d 169.