¶1Opinion Concurring in Result
¶2Constitutional error was committed by the trial court when over defense counsel’s objection he permitted *250the prosecution’s major witness to testify that she had selected appellant from a line-up as her assailant as that line-up was conducted while appellant was being illegally detained in the Crawfordsville Police Station. Brown v. Illinois, (1975) 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416; Wong Sun v. United States, (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Pirtle v. State, (1975) 263 Ind. 16, 323 N.E.2d 634; Williams v. State, (1976) 264 Ind. 664, 348 N.E.2d 623.
¶3The City Court warrant for failure to appear on a reckless driving charge issued in 1969, six years prior to appellant’s arrest on such warrant, did not authorize the police to arrest and detain appellant for the purposes of interrogating him and of placing him in a line-up as a suspect in a kidnapping case, and moreover, the prosecution did not show that the police had independent probable cause to arrest appellant for kidnapping. The police officer in charge of the case and the arrest testified that he used the arrest warrant for purposes unrelated to the failure to appear case, namely, to subject appellant to interrogation about the kidnapping and to put him in a line-up to be viewed by the victim of the kidnapping. Immediately upon arriving at the police station appellant was subjected to that interrogation and line-up. He was not treated in any manner consistent with his having been arrested for failure to appear on a reckless driving charge. No purpose intended to be served by the warrant as issued was in fact served. Moreover, the officer testified that no single effort had ever been made to serve the warrant between the date of its issuance in 1969 and its use in 1975. In my view that warrant did not authorize the police to arrest appellant for kidnapping. See Ludlow v. State, (1974) 262 Ind. 266, 314 N.E.2d 750.
¶4The police had no information at the time of the arrest which would have caused a person of reasonable caution to believe that appellant had committed this offense. Wong Sun v. United States, supra; Gerstein v. Pugh, (1975) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54. The police had a description of the assailant by size, age and color of hair. He *251had grease under his fingernails and was driving a light colored late model car with a dark top. Appellant had a criminal record which was not detailed in the evidence. Appellant and his car met this general description. Given this information twenty days after the crime, in the form of a probable cause affidavit, I believe a magistrate would not have issued an arrest warrant for appellant.
¶5The Miranda rights advisement and appellant’s conditional and hesitant agreement to stand in a line-up did not, I believe, dissipate the taint cast upon the line-up and its subsequent verbal description in court by the illegal arrest and detention. The rights advisement did not relate to the staging of a line-up. The hesitant consent was given minutes after appellant arrived at the station house under arrest and constituted no more than a submission to police authority. Sayne v. State, (1972) 258 Ind. 97, 279 N.E.2d 196.
¶6I vote to affirm this conviction in spite of the constitutional error in the admission of evidence because I am convinced beyond a reasonable doubt that the jury did not use that evidence of the line-up identification in arriving at that degree of certainty necessary to find appellant guilty beyond a reasonable doubt. Chapman v. California, (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Fahy v. Connecticut, (1963) 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. Other evidence showed that appellant sought on two different occasions on the same day in the same shopping center parking lot to finagle a ride with a woman through the use of the identical unique artifice. With one he was successful in getting a ride and carrying out his unlawful plan. With the other he was not. However, both women spoke to him at length and had ample opportunity to observe him. Both unequivocally identified him at trial.
¶7Prentice, J., concurs.
¶8Note. — Reported at 369 N.E.2d 617.