c30:Nos. 15349, 15350, 15357-15359, 15384

FREEDMAN, Circuit Judge
(dissenting).
The panel, now with the approval of the full court, appears to me to have erred on an important constitutional question which it has unnecessarily reached out to decide.
The panel has dealt in one opinion with a number of appeals which were argued together. It selected the facts in one of the appeals, that involving Roosevelt Morris (No. 15359), which it described as a “typical” case, and stated that the essential facts were substantially the same in all the appeals, including that of Rigney, who alone has filed a petition for rehearing.
The facts are that the police were about to subject the accused, over his protest, to a police line-up while he was in the custody of the prison authorities because of his financial inability to post bail pending his trial. The involuntary line-up was intended to afford an opportunity to the victim of another crime to view, inspect and listen to the accused. Although the parties never specifically raised the question, it is clear in the Morris case that at the time of the lineup where he was to be viewed by the victim of another crime, there was probable cause for his arrest for that offense. Since the appellants conceded that a police line-up would be permissible if they had been arrested on the new charges their contention amounted to no more than an insistence on the formality of a new arrest to obtain custody over a defendant who had already been arrested on an earlier offense and was then in confinement because of his inability to furnish bail. If the panel had limited its opinion to this question it would have reached all that was necessary to the decision of the equal protection issue which had been presented to it. And it would have observed the rule that constitutional questions should not be decided in a case which can be determined without reaching them. Brandeis, J., concurring in Ashwander v. T. V. A., 297 U.S. 288, 289, 346-347, 56 S.Ct. 466, 80 L.Ed. 688 (1936); Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Picking v. Pennsylvania Railroad Co., 151 F.2d 240 (3 Cir. 1945), cert. denied, 332 U.S. 776, 68 S.Ct. 38, 92 L.Ed. 361 (1947).
Because the opinion nevertheless undertakes to disapprove Butler v. Crum-lish, 229 F.Supp. 565 (E.D.Pa.1964), 237 F.Supp. 58 (E.D.Pa.1964), which I decided in the District Court, and offers no conclusion on whether in Rigney’s case the facts justify a finding of probable cause for his re-arrest, I feel bound to express my views on the claim of denial of the equal protection guarantee of the Fourteenth Amendment.
I speak necessarily at this point without the benefit of the argument of counsel on both sides in the present appeals. Conscious of this limitation, and subject to it, I believe that the views which were put forth in preliminary form in Butler v. Crumlish are sound. Within its general framework it may well be that some narrower lines may be drawn. For example, the principle against discrimination between those imprisoned for want of bail and those who are free on bail may be recognized and yet made innocuous as to a line-up held in the customary interval between an arrest and the fixing of bail. Judge Kraft made this distinction in United States v. Evans, 239 F.Supp. 554 (E.D.Pa.1965).
The distinction at issue in Butler v. Crumlish was made in that class of cases in which a defendant’s bail had been fixed and the police sought to subject him to a line-up regarding a second, suspected offense, for which they had no probable cause for his arrest. The police have not asserted a right to re-arrest without probable cause a bailed defendant and force him into a line-up, and yet they seek to impose a line-up upon a defendant who is in exactly the same status but is imprisoned for want of bail. The discrimination therefore exists between those who, on the one hand, are imprisoned for want of bail, and those who, on the other hand, are free on bail. This was the case in Butler v. Crumlish, and Rigney’s petition for rehearing claims it is the fact in his case. In Butler v. Crum-lish I concluded that while such distinctions as are necessitated by confinement while awaiting trial may be made between those who supply bail and those who cannot, the unequal subjection to line-ups is in no way related to such confinement and therefore constitutes an invidious discrimination — a classification having no basis except the impermissible one of financial means. “In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color.” Black, J., in Griffin v. People of State of Illinois, 351 U.S. 12, 17, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). It followed that those for whom the doors of the jail were open but through which they could not pass because they could not tender the required bail, were entitled to the same immunity from compulsory line-up by the police as were the defendants who had been able to supply bail. “When a bailed defendant is suspected of another crime the police invite him to come to the police station. If he appears, a much more informal ‘line-up’, the so-called ‘divisional line-up’, is held. If he refuses to appear, the police can do nothing beyond intensifying their efforts to obtain sufficient evidence to constitute probable cause for his arrest on the new charge. True the police assert that most such defendants voluntarily appear when asked to do so, out of an eagerness to remove the suspicion of guilt of another offense. But the comparison between those who are free on bail and those in prison for want of bail means nothing unless it is applied to those in each class who refuse to cooperate. The man who is at liberty may say no to the police; the man in prison for want of bail cannot.” Butler v. Crumlish, 229 F.Supp. at 567.
I cannot rid myself of the conviction that the simple fact of confinement for want of bail does not authorize the police to deal with a presumptively innocent citizen as if he were a creature subject to their will. As I said in Butler v. Crumlish: “The confinement of the un-bailed defendant while awaiting trial is a necessary restraint on his liberty, but it confers no authority on the police to take him into their dominion to investigate other possible offenses. The police are not the managers of the prison, and the circumstance that a number of defendants are confined in one place adds nothing to their authority over them.” (229 F.Supp. at 567).
It is to me strange that at this late date in the developing recognition of the rights of accused but unconvicted and presumably innocent defendants, the Court is unable to equal the sensitive recognition expressed in a less refined era, almost half a century ago, by a respected Philadelphia judge: “It seems to be forgotten that an accused is not a convict, and that it is only strong necessity that compels his detention before trial. It is a restraint of the liberty of his person which is unavoidable. It certainly should not be aggravated by the infliction of any unnecessary indignity.
“An accused, but unconvicted, prisoner is not to be bundled about the county at the beck and call of every policeman or prosecutor who may wish to see him. * * * His rights are not different because he is accused of a crime. He has not been convicted and he is presumed to be innocent.” Finletter, J., in Commonwealth v. Brines, 29 Pa.Dist. 1091 (1920), quoted in Butler v. Crum-lish, 229 F.Supp. at 567.
The evil of such discrimination is made all the more invidious by the outmoded system of bail. Originating in a stable society and calling for the pledged security of a freeholder, his family or friends, it is now in great urban areas of highly mobile populations largely in the hands of professional bondsmen who necessarily condition the writing of bonds on the receipt of premiums. Those who are without means to pay insurance premiums thus are forced to remain in jail for want of bail. The oppressive results on the poor and the vagrant may not be brushed aside by insistent claims of police necessity. Defendants who are in confinement solely because of lack of funds may no more be conscripted into a police lineup in the investigation of other offenses for which there is as yet not even preliminary proof of their guilt, than a prosperous defendant who is free on bail may be forced to enter a prison to join them in being viewed in a line-up. The equal protection provision of the Fourteenth Amendment spreads its benevolent protection on rich and poor alike, bailed or unbailed and equally presumed to be innocent until proven guity beyond a reasonable doubt.
I have, of course, not had the benefit of argument in the present cases. For this reason and because of the unusual significance of the questions involved and the obvious existence of differences of opinion regarding them, my ultimate conclusion at this time is only that the cases should be reheard before the full court. On such a rehearing there would be room for consideration of the scope of the equal protection clause as it might apply even in cases where probable cause for arrest exists and the distinction is sought to be made between the imposition of involuntary line-up on defendants in such cases only and not on the others of the general population. The opportunity would also be afforded to examine the due process of law contention that all line-ups are unconstitutional in any event because they coerce the defendant into an involuntary participation in his criminal prosecution. All these difficult and significant problems, in my view, require rehearing before the court en banc, and since a majority now vote to deny the petition for rehearing, I respectfully dissent.

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