406 U.S. 682 (1972)
On February 20, 1968, Willie Shard was robbed on a Chicago street of a wallet containing traveler's checks and a Social Security card.1 The following day Shard reported the robbery to Chicago police. On February 22 two officers stopped petitioner Thomas Kirby and Ralph Bean on West Madison Street.2 Kirby produced a wallet holding three traveler's checks and a Social Security card in Shard's name, and papers bearing Shard's name were found on Bean.3 The officers arrested both men and took them to a police station.4
Only after arrival at the station and checking records did the officers learn of the Shard robbery. A police car was sent to Shard's place of employment and brought him to the station.5 Immediately upon entering the room where Kirby and Bean sat at a table, Shard identified them as the robbers from two days earlier.6 No lawyer was present and neither man had requested or been advised of any right to counsel.7
More than six weeks later Kirby and Bean were indicted for the robbery.8 A pretrial motion to suppress Shard's identification testimony was denied. At trial Shard described his station-house identification and again identified the defendants in court.9 The jury convicted both men. The Illinois appellate court affirmed Kirby's conviction, and the Supreme Court granted certiorari limited to the applicability of Wade and Gilbert to pre-indictment confrontations.10
Whether the Sixth and Fourteenth Amendments guarantee an accused the right to counsel at a police station showup conducted before the initiation of any adversary judicial criminal proceedings?11
A person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him by way of formal charge, preliminary hearing, indictment, information, or arraignment.12
No. The station-house showup occurred on February 22 immediately after arrest when Shard identified Kirby and Bean.13 More than six weeks passed before indictment.14 No lawyer was present and no advice of rights was given.15 The facts establish that the showup took place before any formal charging or arraignment.16 Therefore the adversary judicial process had not begun and the explicit guarantees of the Sixth Amendment did not yet apply.17
The Sixth and Fourteenth Amendments do not guarantee an accused the right to counsel at a police station showup conducted before the initiation of any adversary judicial criminal proceedings.18
Related opinions on this issue
Chief Justice Burger concurred in the judgment.19 He stated that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a criminal prosecution.20 Burger therefore joined in the plurality opinion and in the judgment affirming the conviction.21
He referenced his dissenting opinion in Coleman v. Alabama, 399 U.S. 1, 21, as supporting this position that formal initiation of proceedings triggers the Sixth Amendment protections.22 Burger's concurrence emphasized the formal charging as the critical point distinguishing routine investigations from adversary proceedings where the right to counsel is guaranteed.23
Justice Powell concurred in the result reached by the Court.24 He indicated that he would not extend the Wade-Gilbert per se exclusionary rule to identification testimony obtained from a pre-indictment showup.25 Powell joined the judgment without fully endorsing the reasoning of the plurality opinion regarding the attachment of the right to counsel.26
His position reflects a narrower approach, focusing on not expanding the exclusionary rule beyond post-indictment contexts while avoiding broader pronouncements on when the Sixth Amendment right to counsel attaches during criminal investigations.27 Powell's concurrence in the result alone underscores his reluctance to adopt the full rationale of the plurality.28
Joined by Justice Douglas And Justice Marshall
Justice Brennan dissented, joined by Justices Douglas and Marshall.29 He argued that the distinction between pre-charge and post-charge lineups has no basis in the realities of criminal investigation.30 The dangers of suggestion and misidentification remain identical regardless of when formal charges are filed.31
The need for counsel is equally great at either stage.32 He would have applied the principles of Wade and Gilbert and reversed the judgment.33 Brennan stressed that the hazards to fair trial from suggestive identifications exist equally after arrest.34
The plurality's emphasis on formal charging is inconsistent with Wade's focus on critical stages where counsel is necessary to protect the right to a fair trial.35 The showup in this case was particularly suggestive, underscoring the need for counsel.36
Whether the per se exclusionary rule of United States v. Wade and Gilbert v. California applies to identification testimony derived from a lineup or showup that occurred prior to formal charging or indictment?39
The Wade-Gilbert per se exclusionary rule applies only to identification testimony based upon a lineup or showup conducted after the initiation of adversary judicial criminal proceedings.40
No. The per se exclusionary rule does not apply because the showup took place before indictment or any formal charge.41 Shard identified Kirby and Bean at the station on February 22.42 The indictment followed more than six weeks later.43 The rationale of Wade and Gilbert limits the rule to post-indictment confrontations that occur after the government has committed itself to prosecution.44
The per se exclusionary rule of United States v. Wade and Gilbert v. California does not apply to identification testimony derived from a lineup or showup that occurred prior to formal charging or indictment.45