The opinion
Bronson, J.
(dissenting). Although a close question, I respectfully dissent from my brethren’s opinion that the photographic identification procedure employed in this case was improper.
In the instant case, defendant was represented by counsel at the time of the photographic identification. This Court has held that where a lineup is attacked as defective, if counsel was present during the procedure, the burden of proof is on the defendant to establish the impermissibility of the identification process utilized. People v Curtis, 34 Mich App 616, 617 ; 192 NW2d 10 (1971), People v Morton, 77 Mich App 240, 244 ; 258 NW2d 193 (1977). In my opinion, this same rule applies where defendant argues that a photographic identification was improper. See, People v Herndon, 98 Mich App 668 ; 296 NW2d 333 (1980). This rule, coupled with the principle that an appellate court will refrain from overturning a lower court’s ruling at a suppression hearing unless "clearly erroneous”, convinces me that defendant’s conviction should be affirmed.
In my opinion, the evidence presented at the suppression hearing could justify the conclusion that an insufficient number of persons with defendant’s physical characteristics were available for a corporeal lineup. People v Anderson, 389 Mich *309 155, 186, fn 22 ; 205 NW2d 461 (1973). It is true that the officer in charge of the case, Sergeant Voetsch, stated that three other black males were also in the Inkster City Jail at the time of the photographic identification procedure. However, my reading of the record is contrary to the majority’s in that I find nothing suggesting that these black males’ physical characteristics were sufficiently similar to defendant’s to warrant their inclusion in a lineup.
I also disagree with the majority concerning the extent of the Inkster Police Department’s duty to attempt to obtain sufficient subjects to conduct a corporeal lineup. As the majority notes, Sergeant Voetsch admitted that the Inkster police had cooperated with neighboring communities in the past to obtain subjects for a lineup. He also stated, however, that such cooperative efforts had only taken place on a few rare occasions. I know of no case law mandating inter-agency cooperation in arranging lineups. Furthermore, considering that the identification procedure had to be set up the day before the New Year — when county police departments were shorthanded due to the holidays —it strikes me as unreasonable to expect time-consuming, and likely futile, efforts to be made by the understaffed Inkster Police Department.
As to the availability of off-duty officers who might have served as lineup participants, the record does not reveal that there was any reasonable likelihood that subjects could have been derived from the black police with the Inkster Police Department. The fact that the lineup was to be conducted during the height of the winter festivities when many officers were on vacation should be borne in mind when assessing what attempts to secure subjects were legally required.
I would affirm.