APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
A. WEXLER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant was convicted of armed robbery and sentenced to four to eight years. From this judgment, he appeals *fn1 and presents the following issues for review: (1) whether Supreme Court Rule 413 (Ill. Rev. Stat. 1973, ch. 110A, par. 413) extends the sixth amendment exclusionary rule announced by United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951, to lineups conducted prior to the commencement of adversary judicial proceedings; and (2) whether the lineup was so unnecessarily suggestive and conducive of irreparable misidentification that he was denied due process of law.
On March 15, 1974, at 8:55 a.m., while on burglary surveillance in the area of 31st Street and Union Avenue, Chicago police officers Krakausky and Geides observed a turquoise 1964 Chevrolet bearing the license number LA 5784 pull up and park. A man whom they later identified as Daniel Relich exited this automobile and entered a nearby building at 3038 South Union. Within two to three minutes, a black-over-green 1967 Chevrolet with license number 976 979 drove up, and the driver (whom the officers later identified as defendant) entered the same building. At approximately 9:10 a.m., Relich and defendant emerged from the building and entered their respective vehicles. The officers followed them for a few blocks and, when the two cars went in separate directions, they returned to their surveillance positions.
At 9:30 a.m. that day, Barbara Cuba arrived in the alley behind the tavern which she and her husband owned and which was located at 3423 South Racine, five or six blocks from 31st and Union. She had just withdrawn a large sum of money to be used in cashing the payroll checks of patrons, and her purse contained $2,600 in $10 bills, $100 in rolled quarters, and a wallet containing approximately $70. Parking her vehicle, she noticed a turquoise Chevrolet with two male occupants pull up behind her and block the entrance to the alley. The driver emerged, wearing a clear plastic welder's mask over his eyes and carrying a gun. He demanded her purse and, when she determined he was not joking, she handed her purse to him. The gunman then returned to his car, and she turned around to observe the other occupant of the car through the open door. She remained in the alley until she had memorized the license number of the vehicle, which she memorialized on a paper plate as soon as she entered the tavern. The plate was admitted into evidence and bore the number LA 5784. The police were called and, upon their arrival, she described the gunman (whom she later identified as defendant) as being in his early twenties, 5'6" or 5'7" tall, weighing 140 pounds, dark complexion, black hair, and wearing an army jacket with blue or grey pants. On cross-examination, she testified that she was quite sure that he was Mexican.
At 9:40 a.m. that same morning, Officers Krakausky and Geides heard a simulcast on their police radio which was a want for two armed robbery suspects. One was described as a male, white or Mexican, 22 to 23 years of age, 5'6" or 5'7" tall, 140 pounds, dark complected, and wearing a green army fatigue jacket; the other was described as a male, white or Mexican, 22 to 23 years old, dark complected, and wearing a dark jacket. Additionally, the suspects were reported as last seen driving a 1964 Chevrolet bearing license number LA 5784.
At 9:55 a.m., the 1967 Chevrolet bearing license number 976 979 returned to the 3038 South Union address with two men in the car. As this was the same car both officers had seen earlier in connection with the vehicle having license number LA 5784, Krakausky and Geides approached it, announced their office, and ordered the two men out of the car. When the car started to move, Krakausky pulled the driver (whom he later identified as defendant) from the vehicle, searched him, and recovered a gun from his pocket. The other occupant, identified as Relich, was searched and $2,600 in $10 bills, $100 in rolled quarters, and a lady's wallet containing identification documents bearing the name of Cuba and $79 were found in his possession. Defendant and Relich were then arrested, and the turquoise Chevrolet was later found in a supermarket parking lot two blocks from the scene of their arrest.
Meanwhile, Ms. Cuba was being interviewed by other policemen in front of her tavern when a call emanating from a portable police radio announced the capture of the suspects involved in robbing her. She was then taken to the police station, where she was shown and identified as her own the money, wallet, and identification documents taken from Relich. Thereafter, when she viewed a lineup consisting of defendant, Relich, four policemen, and another individual, she identified defendant as the gunman and Relich as the companion who had remained in the car.
At trial, defendant moved to suppress the lineup as suggestive and the in-court identification as tainted. The motion, consolidated with the State's case in chief, was denied.
• 1 Defendant first contends that his lineup was conducted in violation of his right to due process in that it was held without affording him the opportunity to have counsel present. While agreeing that application of the sixth amendment exclusionary rule announced in Wade and Gilbert, which remedies the denial of the right to counsel, is not mandated by the United States Constitution where lineups are held prior to the initiation of adversary judicial proceedings (Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877; People v. Palmer (1969), 41 Ill.2d 571, 244 N.E.2d 173), he argues that the Illinois Supreme Court by its enactment of Supreme Court Rule 413 (Ill. Rev. Stat. 1973, ch. 110A, par. 413), intended to extend the right to counsel to lineups occurring prior to the commencement of such proceedings. No authority is advanced by defendant in support of his position other than the citation of Rule 413 itself. The State, however, contends that an extension of Kirby is not the intended application of Rule 413. That rule provides in pertinent part:
"Disclosure to Prosecution
(a) The person of the accused. Notwithstanding the initiation of judicial proceedings, and subject to constitutional limitations, a judicial officer may require the accused, among other things, to:
(b) Whenever the personal appearance of the accused is required for the foregoing purposes, reasonable notice of the time and place of such appearance shall be given by the State to the accused and his counsel, who shall have the right to be present. Provision may be made for appearances for such purposes in an order admitting the ...