*1 FRAZIER, Appellant, Eugene R. America,

UNITED STATES Appellee.

No. 21426. Appeals

United States Court Circuit. District of Columbia

Argued May

Decided March Rehearing Denied

Petition for June concurring Judge,

Burger, Circuit dissenting part. *2 Siegler, Washington,

Mr. Ira S. D. C. (appointed by court) appellant. for Finkelstein, Mr. Joel M. Asst. U. S. Atty., with whom Messrs. David G. Bress, Atty., Q. Nebeker, U. S. and Frank Atty., brief, Asst. U. S. were appellee. Bazelon, Judge, Before Chief

Burger Robinson, Judges. Circuit Robbery bring directly Squad ROBINSON, him Cir- W. SPOTTSWOOD pre- police headquarters. At a office at Judge: cuit hearing, pass upon the held to ad- trial appeal1 from a conviction This is an confession, missibility Keahon robbery Meridian the armed brought that all arrestees testified August Gov Market subsequently con- precinct station are against appellant con proof ernment’s *3 processing, veyed headquarters for by the identifications in-court sisted of photographing is, fingerprinting, that employee of the mar proprietor and an “line-up completion sheet.” and by appellant ket, confession and an oral addition, he was Keahon stated police his after the while detained possession appellant’s personally in Appellant no evidence offered arrest. warrant, with arrest “was familiar argues, as he did He now his own behalf. * * * going to handle case, and was judge presiding should trial, ” * * * the case. and confession have excluded both identifications, thus left Govern and arresting called officer his de a case no better than ment with wagon and, ar- the streets when it from fense. through closing rived, appellant drove police headquarters, and identifications and

Both confessions hour traffic to p. presented cus- m. made an accused him Keahon at 5:20 while tody appellant con- counsel are had benefit of Keahon ascertained that without stitutionally rights1 by suspect.3 arrest- been advised atypi- appeal officer, thus not from form tentions on this read to him and warnings cally gave considerations that invoke doctrinal the Miranda4 which vitiating Appellant effect on each said he under- have a some detail. would form, prong presentation did not stood the contents Government’s exempted special lawyer, conditions. obtain one the unless want a and would closely Accordingly, morning necessary. then must examine if He we next surrounding appellant’s signed that he circumstances statement effect rights in order to not desire the confession and identifications and did knew they pass the strict determine whether assistance of counsel. admissibility which have tests for been talking him Keahon then “started prescribed. judicially Carry Out,” the offense about the Mike’s arrested, he had but be- which

I fore he could utter more than a few exclaimed, words, appellant “I don’t Appellant p. arrested at was 4:15 m. care, Teddy clear Ted. didn’t I want to September 7,1966, pursuant to a warrant * * * Teddy do didn’t shoot that it. robbery issued in connection with a High’s her. woman in the store or rob Out, Carry Mike’s taken to a was “Teddy,” developed, one I did.” precinct Upon arrival station. at about Moore, arrested Theodore who had been m., p. arresting im- 4:30 officer High’s robbery Market. With for a at a Sergeant mediately telephoned Detective confess, that, appellant proceeded to Keahon, Robbery Squad, Robert T. appellant prompting, other who instructed him to to a series of book without Bry- together 21,427, nois, L. Heard No. U.S. 84 S.Ct. identifications, pending (1964). son v. now before Ed.2d As court, appeal Wade, is an from a which United States (1967) ; for the same offense. 18 L.Ed.2d conviction S.Ct. California, 388 U.S. Gilbert (1967 ed.), since § 22-2901 D.C.Code (1967) ; E.Ed.2d 1968). (Supp. I amended Denno, Stovall v. 388 U.S. 18 L.Ed.2d confessions, Arizona, 3. As to Arizona, 4. Miranda v. (1966); Illi- see also Escobedo v. U.S. at 467 - crimes, appellant’s fourth of which was whether transfer from recent holdup precinct police headquarters the Meridian Market which station unnecessary delay Keahon of con- in this case. was an temporary judicial terms he was convicted ques- appellant testified he asked construction of Rule except 5(a) that affair about the Federal Rules of Criminal tions whatever appellant however, identify not, market was ad- Procedure.8 reach to mitting We do question, he had robbed. issues con- or the sensitive cerning applicability9 constitu- Market confession was The Meridian tionality of III Title lurk behind appellant p. m. made at 5:45 When it, properly because the case resolv- confessing other to various finished able on another basis. offenses, brought Keahon witnesses identify processing him.5 Formal his confession attacks m., completed p. ap Mallory grounds, at about 7:30 Miranda10 as well as *4 pellant alleging effectively the United was taken before that not waive he did following against on the privilege Commissioner States his Fifth Amendment morning. self-incrimination. decisions have Our recognized importance inquiry of as effectively II to whether the accused was apprised rights admis when the confession contends that his Mallory sibility of under a confession Mallory United under inadmissible recently at stake.11 And observed as we during States6 because was obtained States,12 Naples in in v. United which delay unnecessary period in his a of confession, pre-Miranda volved a presentment judicial officer. a before Mallory understanding evolution in our of Mallory viola denies a Government has argues that, tion if there were even by “paralleled the visible movement one, the confession admissible under ap- Supreme towards Court Title III of the District of Co so-called plication of Fifth and Amend- Sixth lumbia Bill.7 think the record Crime We pre-arraign- ment considerations to the question raises as to a substantial empowered nearby commit aspect er officer 5. This of the case is discussed persons against charged fra, pt. with offenses IV. ”* * * laws of the United States. 6. 354 U.S. 5(a). F.R.Crim.P. (1957). oper- 9. The is whether the statute 7. 81 Stat. III 735-736 Title retroactively require admission of ates pertinent part provides: in prior to its enact- a confesson obtained 301(a) Any person “Sec. arrested unnecessary de- ment in the course of an ques- the District of Columbia be lay presenting an accused before a respect any tioned with matter for a judicial officer. period exceed im- three hours mediately following Arizona, his arrest. Such 10. Miranda v. note 3. person shall be advised of and accorded Naples 11. See rights applicable respecting his under law App.D.C. 249, 258, 382 F.2d * * * any interrogation. such (1967), and cases in n. 10. In Al cited “(b) Any statement, admission, or con- ston v. United person fession made an arrested with- 66, 67-68, 73-74 immediately following in three hours Judge McGowan, separate opinion, in his arrest shall not be excluded from evidence not, appellant deemed the fact “was in the courts of of District Colum- interrogation, to his informed solely delay present- bia because of to remain silent or of the fact ment.” give such answers as he chose to making might 8. “An officer an under arrest a be used him” trial a upon complaint warrant issued a or “decisive consideration” in his conclusion person making Mallory required barring an arrest without war- a of the con person rant shall take the arrested with- fession. unnecessary delay out before the nearest Supra available commissioner or before oth- note 11. gressive society. period. culmi- movement ment That self-confident nated, procedural course, Miranda, requirement in the For this checks (a) reprehensible practices now resides resort to shadow of Rule those degree’ which, probably made academic known as ‘third which has though problems rejected universally on kind we confront as inde fensible, way still find into record.”13 their use. implica It aims to avoid all the evil directly the ef- Now we must consider interrogation persons tions of secret Mallory Miranda that has fect accused crime.” age. come guard against Mallory itself has stood Although premised explicitly degree,” the “third but also Mallory grounds, has been constitutional pressures upon “the in Police Station ultimately effectuation concerned with prisoners interrogation secret under protections Fifth against Amendment and Sixth counsel, without relative friend.”18 dangers involuntary self- These, course, precisely the con- are incrimination in stationhouses cerns of Miranda. the other rogation inter- evils inherent Mallory of an accused secret.14 these in solution delay presentment iquities before enforcement exclu “[T]he [in Mallory admonished, sionary magistrate],” requirement “must rule give opportunity brought judicial not be of a nature to accused “before quickly possible officer for the a confession.”15 as so extraction that he *5 * * 19 may parent rights opinion, Its McNabb v. United be advised States,16 imperfect proposition remedy that But this rested was at best

“[legislation [comparable delay presentment 5 Rule because some in is * * concedes, (a)] *, requiring po- and, Mallory that the unavoidable as may promptness delays purposes lice reasonable additional for must with some detaining legal justifiable.20 postponements for arrested be show cause Such important are, persons, course, susceptible safe- constitutes an to abuses as assuring guard only protec- any others, experience in has ex —not emplified difficulty also in secur- tion but for the innocent inherent as guilty by ing certaining meth- purpose of the the real conviction either pro- challenged delay to a themselves ods commend or the actual nature 258, cause, probable U.S.App.D.C. F.2d at at 382 without 13. 127 rest made may independently of Mal arise 474. subsequently lory evidence as to whether U.S.App. States, Spriggs 118 14. 5(a) of Rule must obtained violation (1964). 283, 248, 251, 286 F.2d 335 D.C. illegal ar be excluded as fruit 455, at 1360. States, 15. at 77 354 U.S. 130 v. United rest. See Adams (1968) ; U.S.App.D.C. 203, F.2d 574 399 608, 332, 87 L.Ed. 63 S.Ct. 16. 318 U.S. U.S.App. Bynum States, 104 819 (1958). Mallory, 368, D.C. 262 F.2d 465 343-44, 614. 17. Id. at at 63 S.Ct. regardless however, applies legality arrest, which has been Spriggs 18. note v. United only evidence, testimonial read to exclude 250, 14, U.S.App.D.C. at 335 F.2d 118 Adams, supra, 130 see cases U.S. cited at 285. 576, App.D.C. 205, 4, at at n. 454, 19. 354 77 S.Ct. at 1359. U.S. 4, n. is more than incidental ill-suited for Mallory progeny also have voiced and its impact problem. on that may police possibility that concern at the 455, delay interrogate, use a 354 U.S. at 77 S.Ct. See or otherwise presentation magistrate, ob- also Alston before a v. United note support probable F.2d the ar- cause tain (opinion Judge McGowan). appears ar- an rest. Whenever it Thus, interrogations convincing out closed carried behind absent evi waiver, dence stationhouse doors.21 confession admitted, regardless dispatch with Miranda, Supreme Court presented which the accused is before a through uncertain detour eschewed this magistrate. Conversely, should the Gov problem of 5(a) Rule and attacked carry burden, ernment its think it we directly. interrogation held It custodial follows that in the confession is to the assist is entitled that the accused solely ground admissible that the questioned he is ance of before counsel magis accused was not taken before a and, effect, he confession possible trate at the A earliest moment. custody in exclusive makes while necessarily, valid Miranda waiver is arraignment presumptively waiver,23 the duration of the also a waiv Fifth and inadmissible under the Sixth warning judicial er of an immediate can confessions Amendments. Such rights.24 Mir constitutional And what if, if, affirma the accused stand anda, interpretation, as a constitutional tively understandingly waives liberty yield, leaves an accused at rights, “a and the bears Government may, believe, forego equally he under we heavy attempting to show burden” in exacting lory.25 Mal Provided the such a waiver.22 majority he wishes to remain silent Compare manner the dissent with attorney. g., or that he opinions in, wants e. Coor Arizona, supra U.S.App.D.C. 259, 384 U.S. at F.2d 473-74, L.Ed.2d 694. (1964), 86 S.Ct. cert. denied 382 U.S. (1966); L.Ed.2d implicitly 24. Miranda assumes that States, 116 U.S. Muschette v. United convey possible for the to the App.D.C. F.2d 989 understanding accused sufficient grounds other vacated on rights to enable him to an intelli- make (1964) ; 1927, 12 L.Ed.2d 1039 gent police warning, waiver. A to be U.S.App. States, 104 Heideman v. United given proper effective, must be cert. denied D.C. understanding. solicitude actual Moreover, coercive a waiver made *6 illustra This case itself is likely atmosphere police custody of is less difficulty: police practice the tive of the voluntary to be than one made before a headquarters persons processing of at Thus the Government commissioner. may may precinct arrested the weighty proving carries such a burden of police adminis be to efficient essential involving waiver in cases confessions to essential, ; it nonethe tration if it is police. irrespective gives the of But who presents opportunities obvious less warnings confessions, the or takes the the interrogation. improper question ultimate is whether the waiver voluntary given is in full the word. the sense of warnings the have been After If an accused did not understand what a interrogation continues without “[i]f the magistrate him, ensuing attorney told an confes- presence and a state- the of an be- sion would not be rendered admissible heavy taken, burden rests ment is a rights he had advised his cause by government demonstrate that the the to judicial Similarly, a officer. under intelligently knowingly and defendant Miranda, may even a waiver be valid privilege self-incrimi- waived his though the warn- right ap- made on basis of to retained or nation and his ings. * * * pointed This Court counsel. always proof high standards of has set conclude, however, 25. We do not in rights, for the of constitutional waiver waiving right silent, to his remain Zerbst, [58 S. Johnson right impliedly accused also waives his we 1461] Ct. 82 L.Ed. complain prior violation of Rule applied re-assert these standards custody interrogation.” 5(a). Bather, Mallory we construe v. Ari- Miranda require exclusion of otherwise ad an zona, note 384 U.S. at m issible confession because of a brief de at 1628. lay obtaining in a Miranda waiver. 23. A valid waiver ceases to be effective any in whenever accused indicates

H67 met, untary relinquishment privi- standards for waiver are over- of the riding Mallory lege.” purpose of has been serv- ed.26 Thus, greater pre- tardiness confession, sentment to a say By no is this to means “heavy already heavier the Government’s unjustified compliance delay in with showing burden” of effective waiver. bearing 5(a) Rule has no ad Certainly delays so some conceivable are forthcoming missibility of confession a long subsequent that no could confession during delay. period a As of such product voluntary be deemed the waiv- clear, Miranda made nothing And er. Miranda affects testimony of the au- “[w]hatever admissibility vel non of evidence rights by an thorities as waiver following during sort obtained detention accused, lengthy inter- the fact illegal arrest.28 rogation or incommunicado incarcera- III is made is tion before a statement Thus is wheth- the vital here strong accused did evidence that appellant voluntarily er and understand- rights. validly In these waive his ingly rights. If waived his fact that individ- circumstances the not, did he confession inadmis- was eventually a statement ual made did, sible Miranda. If under he conclusion that consistent with the pur- fession even if the admissible interroga- compelling of the influence pose inspiring head- transfer to finally do It is interrogation him to so. pro- forced quarters tion for the duction of notion a vol- evidence.29 inconsistent Mallory upon 5(a) rele the ac little same reason that has confers also Rule persuade expeditious goal assuring opportunity prompt vance to the a cused hearing prob preliminary magistrate, of the existence of determination at a significant proh cause, 5(c), is not a anti able it there Rule under delays problem While, holding bail him. dote to the cause able course, force, hearings. policy see remains early 5(a) provide Rule also serves to Adams magistrate warning may important counsel, Mallory coinci has it enforced protecting interest at a if no an accused’s dentally, in no effect since has line-up. Williams v. criminating See as a is obtained evidence — U.S.App.D.C. —, delay, 419 F.2d 740 it has been and since result Thus, 1968). unnecessary (Dec. 20, apply identification not to where read delay magistrate presentment in the absence of coun evidence obtained oc independently sel be excluded Coor a confession. curs after *7 Wade, U.S.App.D.C. 21, v. Gilbert States, rules of United States 119 note Denno, California, 785, Bailey 260, and Stovall v. all F.2d Unit 340 at during 241, 3, U.S.App.D.C. an States, if it is obtained note 328 117 ed delay” presentment. “unnecessary 972, If in cert. denied 377 U.S. F.2d right validly (1964) ; has the to counsel been L.Ed.2d 741 12 Miranda, however, Lockley U.S.App. is waived under 106 v. United Moreover, ; in (1959) sue will arise. even not 915 Porter D.C. waiver, U.S.App.D.C. if was in the counsel absence v. United challenged present (1958), fact tion, confronta at the cert. denied resulting is if identification the U.S. admissible, Mallory not (1959) ; does otherwise and see States v. require Mitchell, 65, 70-71, exclusion because of a viola its 5(a). tion of Rule Williams 88 L.Ed. 1140 —, supra, found, 5(a) probable Rule If cause is n. n. 9. 419 F.2d at promote early serves to consideration still bail. accused’s to This of an admission 27. 384 86 S.Ct. at 1629. U.S. at has taken on added function of rule 19, supra. 28. See note importance with the enactment Act, Naples States, supra Reform Stat. Bail Cf. seq. for the § 3146 et But U.S.C. appellant reason, record discloses that ob- ment. Whatever the the evi- when, began jected string he as his dence raises a serious as to confessions, Sergeant intelligently to he Keahon started whether waived his to take notes on How stren- remain his confession. silent.31 objected uously appear, does not he given the Mi was stopped noteworthy it is that Keahon warnings entirety. randa signed He their writing point. at that He testified en- purported express what to be tirely memory from to the details If waiver. there no evi were other confession, year be- made a was record, dence the Government began, explaining fore the trial that discharged burden, would have its admission, beginning “at inquiry necessary. no further would be notes, stopped I to and he started write express But while that statement “[a]n anything me and Don’t said: write willing the individual is to make a state you I I down. will about this but tell attorney ment and not fol does want an anything you don’t to want write closely by lowed a statement con could down.” waiver,”32 stitute a Miranda teaches strong implication is many that in circumstances it not.33 does appellant thought that his confession Here, Sergeant sug testimony Keahon’s against long could not be used him so as gests powerfully that the waiver was If, nothing writing. was committed to made; understandingly addition, the confessing sug as his avowed motive for custody appellant spent hour before gests, brooding guilty he was over a ceremonial casts doubt “waiver” warnings conscience while the were be voluntarily whether it made. was Since ing given, might he failed to well have to Government offered evidence message. may simply absorb their heOr doubts, say dispel these we cannot laboring have misapprehension common under the “heavy this record its that carried that could * * * anything they use in court he said unless that burden demonstrate were to introduce state- able a written knowingly intelligent- defendant dissenting agree 30. We cannot with our “anything said can and fact colleague (infra p. 1176) “[t]he rec- will be used the individual only possibility ord raises Id. at at 1625. court.” put into evidence those warning statements were needed in order make This al- consequences made time him of fore aware leged equivocations.” The confession at going privilege speak. his “It issue the fourth in a series made through an awareness of these con appellant Sergeant Keahon, sequences who testi- as there can be appellant put stop understanding note- fied that in surance of real taking beginning privilege.” admis- telligent “[a]t Id. exercise of the sion,” narrating suggests, when the first explanation he And as this a warn Sergeant robbery in the series. If Kea- is not under is not if it effective Thus, contrary hon was not admonished about note- stood. to the thesis challenged taking incriminating until after confes- dissent, statements given, “compelled” involuntary, sion was we must disbelieve and thus explanation why meaning he had no notes Fifth Amend within the concerning ment, it. even where the are not *8 supra. 24, v. fault. note See Procter Cf. 31. The thrust of Miranda is in order that 241, States, United 131 permit opportunity “a full to exercise 243-244, 819, (1968). 821-822 privilege against self-incrimination, adequately Arizona, supra 3, the accused must be and 32. Miranda v. note 384 ef- * * fectively apprised rights (emphasis 475, *.” at 86 S.Ct. at 1628 U.S. added). 467, (em- 384 U.S. at phasis 1624 86 S.Ct. at added). Specifically included among warnings 1602, 475-76, the Court found es- L.Ed. Id. 86 S.Ct. at adequate apprisal sential to an is notice 2d 694. hearing findings dentiary ly privilege waived self-in- of fact on * * validity appellant’s purported crimination waiver.36 argues, how Government ever, was not that because IV below, al appellant not be should raised disagree. Appellant present it here. We also lowed contends that trial initially judge permitting eyewit- Appellant’s con two counsel35 was erred signed robbery and what nesses to the fronted with the waiver Meridian Market spontaneous appeared identify partici- confes a him at trial as a scarcely pant. argument surprising that he It is His is that these sion. Miranda, Mallory, prepared products a not a ar court identifications were connoting gument. prior extrajudicial that The evidence made identifications understandingly sug- appellant unnecessarily did not waive in circumstances so gestive recogni- rights develop promotive faulty direct until the did not Sergeant impinge process Keahon. De tion on due examination as to apparent disposition at counsel then made an law.37 fense tempt We our deferred general ap- in a raise the issue this case enable evaluation way, pellant’s light lost matter re- but claim the of the argument Mallory pursuing. We he was cent the full court. Clemons decision appellants a as do more not demand One, one, pre but litigation funda of issues condition episodes complained trial of falls within process. in the criminal mental area constitutional condemnation. Nonetheless, because Gov appellant’s More ar than month after warning it ernment had no clear that rest, Rezniek, I. the owner Louis evidence, produce need to more would market, Simpson, em an and William new we are reluctant to reverse ployee, present of whom when both were note-taking in trial. veighs against ban holdup occurred, appellant viewed waiver, intelligent but while confined in a cellblock. overcome, might be this inference example, Sergeant shown, only person they was the were if Keahon admonished time both witnesses knew him that even oral confession would appellant As the Gov had confessed. against him, appellant re be used plied the in itself characterizes ernment now did not that he still knew cident, single-suspect con this cellblock anything Absent want written down. suggestive”; so frontation was “indeed evidence, comparable additional some add, so, much to render we hasten to waiver, understanding quality, of how process.39 to due offensive ever, Ac cannot stand. his confession however, Government, cordingly, remand the record we shall rely upon iden- did the out-of-court for an case to District evi- Court (Jan. 1256, Arizona, supra 3, 285, 34. Miranda F.2d at 1259-1262 v. note 31, 1968). pretrial 475, Since identifica- U.S. at decisions before the occurred tions appeal. 35. Not his counsel on this and Gilbert Wade United States Appellant, course, may 3, California, supra wish to testi fact both note fy hearing. unrepresented appellant See Simmons v. then 389-394, 390 U.S. does not constitu- counsel establish (1968) ; supra Denno, 19 L.Ed.2d tional violation. Stovall Bailey U.S.App. S.Ct. 1967. note 388 U.S. at D.C. F.2d 305 U.S.App. States, 133 38. Clemons v. United Denno, (en 37. See banc Dec. Stovall v. note D.C. 1967; 1968). U.S. at Simmons v. 967; Wright 38, 42, 46-47, *9 F.2d at Id. at v. United 39. at States, U.S.App.D.C. 279, 1245, at 282- 1249-1250. question, testimony at trial.40 The tifications uncontradicted of Detec- then, Keahon, is whether the in-court identifica tive independ sufficiently tions had a source Simpson “when Mr. walked into the ent of the exhibition as to be cellblock office, he saw Frazier and he said: free from court its taint.41 The trial approached There’s the man that me taint, found that no there and we was stated, in the back and a hold- this is support adequate deem the evidence up. And at the same time the De- finding.42 head; fendant Frazier shook his and I by asked him what did he mean shak- Simpson Reznick and testified at each head; Yes, and he said: they appellant trial remembered is the man that was behind the meat impressions from received at time of counter.” robbery. perpetrat- The offense was during by daylight ed two men hours Ordinarily, an identification during period over a minutes several arising suggestive out of so a confronta Simpson which both Reznick and had ex- tion constitutionally would itself be dub opportunities cellent to scrutinize the Here, however, ious.44 did Afterwards, gave they two robbers. the Simpson identify appellant, appellant joint descriptions detailed Simpson. also identified There can be culprits, depicted appel- one of which by no doubt on the record that “the reasonably addition, lant well. Rez- counter,” man that was behind the meat appellant’s photograph nick selected out appellant Simpson’s presence referred to pictures” given of “a box of him the robbery. there at the time of the At police shortly appellant’s after arrest. juncture, urge this to confess was so evidence, hold, This we sufficient to was strong that he even acted out one of the support finding that Reznick’s iden- holdups other to which he had confessed tification was tainted the cell- eyewitnesses in order to convince hesitant block confrontation.43 to that crime that he had indeed been perpetrator. statement, however, His Simpson, As to who made no here, is relevant it is because evi photographic identification, proof on guilt thus, indirectly, dence independent for his source in-court iden- reliability identification, Simpson’s very significant tification included a directly but rather because it tends night appellant’s event. On the ar- independent confirm the of an existence rest, Simpson brought head- challenged source for the identification. quarters identify According him. to And, this, hardly there could jury 40. The did hear a reference to States, supra 42. In Clemons v. United during cellblock confrontation 38, direct U.S.App.D.C. 33, note at 38 of However, examination Reznick. even 1236, 1241, emphasized we if importance Reznick’s reference amounted to an un- of the trial court’s considered intentional judgment introduction into evidence of on this in the absence episode, the out-of-court enlightenment by there Supreme of further . identification, error if like id., opinion its Judge Court. See also sequel, “independent Leventhal, court had U.S.App.D.C. 49, at States, source.” Clemons v. United F.2d at 1252. supra 38, U.S.App.D.C. 45, note at reliability 43. The of Reznick’s in-court 408 F.2d at 1248. additionally supported identification Wade, supra by appellant’s Simpson United States v. note concession that correctly 388 U.S. at appellant 18 L.Ed. had 'identified as a supra California, 1149; 2d participant Gilbert v. robbery. in Meridian Market note 388 U.S. at See the text at note 45. infra 1178; Clemons v. United States, supra U.S.App.D.C. Compare note Clemons v. United 1237; Wright supra Wright at 38; note note App.D.C. 404 F.2d 1261. 404 F.2d at

1171 answering question irreparable In this affirmative- any likelihood “substantial 45 ly majority Mallory heavily leans identification.” mistaken States, 449, v. United 354 77 U.S. S.Ct. the District case to remand the We 1356, (1957), 1 L.Ed.2d the stand- 1479 proceedings consistent with Court ing of which has been drawn into seri- opinion. this Congressional en- ous doubt recent Remanded. cognizance2 majority’s actments.1 The message leg- that this series Judge (concurring BURGER, Circuit ap- Mallory their islation bears for dissenting part): part agreement parent with the court’s lower finding agree Mallory testi identification violated I significance here,3 Mallory’s mony properly under true admitted belies recently court un- to the it is principles forth issues at hand. Moreover set States, Mallory U.S. Miranda as 138 sound to treat closely related; United in Clemons v. 6, (Dec. quanti- 27, App.D.C. 1230 former 408 F.2d agree delay, 1968) banc, is a I do tive test time the latter en but majority opinion qualitative re parts test of the circumstances those inadmissibility interrogation.4 lating state made ments majority’s ex- Of more concern is the police. pansion per of Miranda se exclu- into sionary rule, transcending thereby (D only requirement Fifth Amendment through com- those statements elicited separating me from the The sole issue pulsion In- be excluded from evidence. Arizona, majority Miranda v. is whether deed, Miranda read as itself cannot 1602, 436, 384 86 S.Ct. U.S. going beyond language of the Fifth (1966) required state- 694 lingering Any from the evidence. Amendment.5 doubts ments to be excluded States, Herman, Supreme Re note 4. Court and 45. Simmons v. United Interrogation, 967, 384, 36, 25 19 L. strictions on Police 88 S.Ct. 390 U.S. (1961). States, 449, 1247; Ohio L.J. 451 In Clemons v. United Ed.2d 47, U.S.App.D.C. event, Mallory 38, has never been inter 133 preted requiring to termi 408 F.2d at 1250. purposes nate an of ar interview 1. and Safe Streets Omnibus Crime Control raignment suspect when a to make wants (1968); Dist Stat. Act of 82 197 guilt. Fuller a confession of In Bill, Stat. Crime 81 rict Columbia States, United (1967). 273 & & n. 13 n. en, majority opinion at notes See 7-9 banc on other issues reheard majority accompanying men- States, 19,532 (D.C. text. Tbe Fuller v. United Cir., No. Bill, Judge tbe District of September 26, 1968), tions Columbia decided Act is also relevant. 5(a) tbe Omnibus “Rule did not re Leventhal noted: incorporates substantially quire Its Title II break off the in the detectives arraign of Columbia try appellant Title III of the District terview and generally, Note, II Bill. See Title Crime him im rather than allow to make an A Act: of the Omnibus Crime Control mere assertion mediate elaboration of the Study Conflict, 57 in Constitutional guilt”. (Citing Walton (1968). And Bell v. see Geo.L.J. (10th Cir. Maryland, U.S. Comley 1964), cert. denied sub nom. (1964), dealing with the L.Ed.2d 822 379 U.S. retroactivity. legislative (1965).) 13 L.Ed.2d 612 Mallory of confessions the exclusion powers, supervisory expressly rested on not on the Court disclaimed Mallory beyond Constitution. intention to traverse L.Ed.2d strictures the Constitution. At ; (1957) opinion stated, 1479 States, see McNabb v. United outset of its the Court * * * 332, 340, prem- “We start here with the holding L.Ed. 819 ise that our is not an innovation *11 by rights ex a recent and this score were resolved ordinate to incidental subject position Supreme they designed By postu- on the were to secure. discussing lating scope concept of Mir Court. a did waiver .the Court pertinently eclipse anda the noted in not Court intend to threshold quiries presence compulsion Hoffa into 385 U.S. of 303-04, 408, 414, quality police 17 L.Ed.2d and the 87 attend- conduct S.Ct. long ing that, making inculpatory least as 374 “since at state- ago background Marshall ments. This con- when Chief as Justice gave trolling legal principles first attention to the matter in the which Burr, agreed ought agree trial of Aaron all have case to decided. I do not be give necessary compulsory they plausible that a element of to rise a claim improper amounting police com self-incrimination is some kind tactics to pulsion.” added) (footnote (Emphasis requiring coercion reversal remand. omitted) (2) Supreme In Miranda the Court held presented Frazier was to Officer Kea- warnings given to a certain must be headquarters hon at at P. Their 5:20 M. suspect interrogation” before “custodial meeting prefaced by was Keahon’s read- underlying could The as- be conducted. ing warnings the Miranda to him from sumption warnings was that these were (a PD-47 form card all necessary prevent to subversion carry previously and officers which had rights unsupervised pretrial trial at Sandy been read to Frazier Officer frontations and the between accused arrest). upon repeated He these his pre-Miranda had State. Whereas eases warnings PD-54, to Frazier he read when alternately and invoked the Fifth Sixth a form Fifth which advised him Amendments Miranda made eléar that rights and Amendment and con- Sixth the Fifth Amendment the central was to tained a an intention statement of value at The stake. articulation right waive and his to remain silent stringent merely requirement waiver right Thereafter, to counsel. at 5:30 sought through a device which the Court M., form, P. Frazier read this himself guar-

to ensure that Fifth Amendment orally stated that he its mean- understood unduly impaired pre- at antees were ing,8 signed and the waiver. interrogations. guidelines trial set servicing forth in Miranda means were Officer Keahon testified he then ends; constitutionally prescribed ar- relating read the arrest to warrant they implementation robbery Shop tifices of sub- Carry are Out Mike’s jurisprudence, applica- any questions. any in our but is an time or to answer ap- principles long recognized say Anything you tion of can be used plied settings”. right you in other at U.S. You have the to Court. lawyer 1611. 86 S.Ct. at talk to a for advise before [sic] question you we have him with to Compare Illinois, U.S. Escobedo you you during questioning. If cannot 478, 491, S.Ct. lawyer lawyer one, afford a and want a (1964) and Massiah v. United you. you provided If will be want 1199, 12 L.Ed.2d U.S. questions to answer now without a Tennessee, (1964), with Ashcraft v. lawyer, you right will still have the L.Ed. 1192 S.Ct. stop answering questions Mississippi, (1944) and Brown v. right stop time. You also have the 80 L.Ed. 682 answering you time until talk to lawyer. warning reads as follows: Keahon follows: “He Officer testified as under arrest. Before we ask You are stated that he did understand [Frazier] you any you questions, must under- law- the form and that he did not want a * * * your rights yer. You stand what are. have He stated ‘If I need a ” get morning.’ lawyer, to remain silent. You are I will one in required say anything 63-64.] us [Tr. rob- question Frazier on that rule. There not a scintilla of evi- started But, spoken suggesting bery. had dence Keahon after that what had been forthcoming words, out his lips blurted from Frazier few person had improper who clear third result unreasonable or desire robbery shoot- for the conduct. The fact been arrested High’s minutes Within have at a Store. desired statement others, Frazier, exculpating by way compel transcribed does not the con- *12 being rob- subjected in the to clusion that admitted his involvement he was to Store, High’s activity Mike’s police the kind of the un- beries Carry found Market, Dodge Shop, at the Out conscionable Miranda. most that The last Appellant’s Market —the can at the Meridian be said from and statements being robbery he was may unintentionally one for which is that he the have During dis- this in this case. criminated convicted The Fifth Amend- himself. ment, objected Kea- however, to Officer course Frazier serves neither to dis- tes- taking courage notes. Keahon prohibit written nor hon’s to self-incrimina- tion, beginning only against compulsory of his admis- “At the tified: militates notes, sion, he and I started to write self-incrimination. record does any- ‘Don’t stopped remotely suggest Appellant write even me and said: that was you this thing being compelled himself, tell about down. I will to incriminate anything you compelled to don’t write no but I want less utter to words ” slightest all. There [Tr. 72.] down.’ the indica- tion that was unaware Market of Meridian The admission the rights or a labored under misbelief appears to robbery and was unsolicited against speak to his failure could be used Keahon Officer been volunteered. have guilt. him as evidence of There is Frazier that he did not ask testified intimation the environment would participated Meridian in the he whether permitted have neither nor honored ques- robbery that the Market non-waiver. robbery to that relation tions asked for fact, during confession were purportedly the initial In no issue is even corroborating identifi- purpose willingness raised eventually Thus it seems cation of market. make the statements that were totally spontaneous Indeed, confession was used him. evidence voluntary. his volition inferred from his voluntary participation later that eve- Following Frazier was the statements ning pro- in a of identification series robbery squad office in the retained spon- cedures. view obvious hours, quizzed nearly he was two where taneity surrounding making, its robberies, re- four about the in detail plainly statement have used could confessions, displayed to was his iterated as a threshold oral confession.9 witnesses, several reenacted several he was Thereafter robberies. noting regard In this it also bears night placed because in a cell “plus frequently that contributing factors” so was available a Commissioner rejection to a confes- morning. following presented the present are not this Frazier sion case. right repeatedly told coun- (3) right silent; and his he sel remain entirely immediately rea- confessed and without demonstrates record denials; activity satisfying repudiated de- he never sonable allega- underlying fession and he did not make purposes terrent Mitchell, U.S.App.D.C. 181, g., 313 F.2d 572 States 9. E. United (1962) J.) ; Metoyer (Edgerton, 88 L.Ed. U.S.App.D.C. Bailey (1944) ; (1964) (1957) (Burger, J.). 250 F.2d 30 F.2d 542 (Miller, J.); Jackson physical through peer kaleidoscopes threats tions coercive courts to abuses.10 search of constitutional inevi violations tably measuring into deteriorated By equating Frazier’s insistence constitutional sus terms of the with a desire not write notes pect’s horribly invariably need—and himself, majority not to incriminate guilty Although suspect at that. engages speculation Appel- in sheer theory during currency received the era thought processes places a lant’s which “special circumstances”, twenty years judges premium capacity on the application pro of inconsistent approach probe Appellant’s mind. This judicially manageable duced no stand an unfortunate resemblance bears eventually persuaded Supreme ards engaged sophistry the courts which Court in Miranda12 turn to an es under the albatross of Betts v. labored sentially objective13 analysis. mode of Brady.11 Indeed, requiring rule 10. w pect’s testimony Betts necessitated an 468-469 & n. the events Illinois, of completely at 479 n. 2d 694. and Both of these cases were 357 U.S. and 694. Of 357 U.S. felony cases without right, circumstances” circumstances”. counsel directly transposed on the determination D.C. termine L.Ed.2d 799 cumstances” doctrine was evolved to de- ready capital offenses. denials; 962 Spriggs States, Analogously, MeKethan, not what would By material. Youngdahl 316 U.S. Cir.No. *13 Compare, (D.D.C.1965), the rejection partially the time of (1958), (1984) 248, (1958), (1942), 12 L.Ed.2d been overruled universally applicable 119 372 U.S. the v. special admissibility repudiation of the 20059, 1966), 335 F.2d 283 overruled in 455, United necessity e. U.S.App.D.C. 43, Compare (1963), holding the states be decisive but would be in Miranda of the and Crooker (allegations overruled in 78 S.Ct. 78 S.Ct. g., into which the interest 62 Betts aff’d which the In Cicenia v. Miranda, the arrest area a F.Supp. 324, 335, 83 S.Ct. States, Greenwell v. S.Ct. “the test must be defendant regard 491-492, of a confession. (1964), analysis inquiry. understanding 1287, 2 L.Ed.2d Gideon v. Wain 1297, 2 L.Ed.2d Miranda, counsel 1252, where of the discussion (1963) 118 v. Betts order distinguished Escobedo “special the confession). at trial California, coercion) ; States and were 336 had been U.S.App. 328-329 “special “special rule of himself had Id. at Lagay, United Judge L.Ed. (prior (D.C. L.Ed. non- sus- cir- al of scribe to “reasonableness” of n. 11 D.C. duct as the touchstone of Fuller v. a multitude of ary 24, 1969) indicates, he too would sub- rules. tember bane on States, Here was no fornia, fruits of such obedience of prescribed procedures, tion. ment L.Ed. 183] their action. lieved to be the facts in their ing them probable cause is not cause the ^[*] police reasonably It As dignity Fourth Amendment fendant’s police conduct under the Fourth Amend- D.C. which the seizures,” and the reasonableness of Hicks v. United able the detective] and the acts have recently able * * I fail ^[*] is not searches and seizures as such Judge law,” integrity (1967) (Leventhal, J.), man, man, 209, Judge 26, 1968). No. is ^[*] thought * * * * 342 U.S. 165 [72 S.Ct. other 273 n. ordinarily to see how admission United good 19,532 (D.C.Cir., shoes, 382 F.2d 158 police innocent thought, but what a reason Bazelon’s dissent “unreasonable searches and interpreting ** Bazelon said citizen, judicial holdings (the) (D.C.Cir., Thus, police of had he been issues Fuller ” shocking “flagrant disregard” cited with faith were in fact mistaken and in (slip op. * * * gauged by no of * * * conduct could cf. an arrest made on reasonable any crime, judicial police no “willful dis Rochin v. Cali these invalidated be- affront (July 7, 1967). McKethan has decided Febru- good there, echoing exclusionary decided the time approval accompany police in Hall v. reheard en 1199, “contempt v. words a reason what Constitu 6, 9) U.S.App. faith be- U.S.App. process. enjoins, the de to the of United belief. would sully Sep- the [of of utterances underlying purpose of Mir- extent Since indicating improprieties, be construed as a misunder- police anda to curb standing consequences of provided his mak- objective criterion the use major- incriminatory statements method a more workable courts with ity police supply has failed to a nexus between evaluating the reasonableness police holding presence improper theory unhappy this conduct. The amounting coercion. conduct police for environmental accountable unavoidably personality factors difficulty perceiving the basis I have suspect frequently be- unique to each majority’s argument it was for the police perception came yond pale proceed unreasonable for the exclusionary of an to rest in the shadow questions Frazier made with after Indeed, grounded rule in deterrence. Although apparently waiver. valid Supreme New in Johnson v. Court irrevocable,15 waiver was there essentially Jersey14 deter- confirmed nothing to that Frazier indicated show underpinnings of Miranda rent manner, “in or time thereby placed imprimatur an in- its during questioning, that he wish[ed] focusing terpretation reasonable- an attor- remain silent” that he wanted instead ness conduct ney. Arizona, at 473- vagaries of human nature. 474, 86 at 1627. per se Miranda did not set down Having complied postulates against pretrial question- proscription Miranda, duty of the absolute primarily ing; to abu- it was addressed *14 agents police the law enforcement as designed tactics sive and unwarranted investigate promptly to circumstances the rights. if Even to subvert constitutional suspect’s possible the crime and unwittingly him- Frazier incriminated participation. I at a loss am somewhat self, police held ac- the not be should to more the know what Government of evidence countable in the absence some comply could or have done to should part. or on their of deceit misconduct if of Miranda. the directives Even Here, course, no evi- of is such there privilege Frazier did not understand the Indeed, majority clothes dence. the against self-incrimination, majority’s the significance remarks with beyond approach goes is and unrealistic bearing relationship or to the record no Through- any It the of decided cases. ordinary experience. mandates to human majority circumspect opinion seemingly expects police out the is the to detect relating to any avoidance of discussion misunderstanding lack dications of improper police conduct. To coercion knowledge subtle that which are so Although Hall involved the the case admissibility confession, mining the everything said in Fourth Amendment question is whether there was suf- the equally dissent to exclu the relates the police ficient reason for the to believe Fifth sion of reliable evidence under the being suspect the had consented to Amendment; Boyd see ju- questioned. In both instances the 616, 630, 524, 532, objective dicially the rules declared (1886); L.Ed. where noted the Court reaping prevent police from is to the “the fourth and fifth amendments Here benefit of official misconduct. the Compare run almost into each other.” any allege is unable even to Note, Reappraisal Consent A Searches: underlying police misconduct, hence the Arizona, After Miranda v. Colum.L. exclusionary predicate rule is the totally Rev. In such circumstances absent. Just reasonableness has been the justification sup- there can be guidepost protecting privacy, it also pressing evidence. the determining serves as the basis for ex- the 16 L.Ed. compulsion. assessing istence of the le- holding not 2d 882 gality of an arrest the is framed retroactive. police in terms of whether the officer had probable cause to Arizona, supra 444-445, believe a crime had 15. Miranda v. committed; similarly, in deter- 16 L.Ed.2d 694. recognize prob- judges relevant the criminal trial as we would even flounder in of artificial rules a morass lem. poorly impossible conceived and often judges pro- seeming anxiety of The application. every every person from tect accused voluntary possibility that record sequence utterances raises sub-rules, rules, put giving myriad evidence statements into rise Appel- exceptions even were those made time which variations alleged lawyers sophisticated equivocations.16 Police lant’s most alert and reasonably presently in judges Each time follow. who act on facts are taxed to possession judges “rules” we their not be ascribed nuances to these should add subsequent likely police officer a taint utter- it virtue make less might guidelines suspect we said ances of a to follow will be able pre- approaching symptoms Mir- lay to exhibit forbidden We are down. fly- relating-back centipede anda. The use of such dicament leg placed theory paper Miranda17 and one does violence to time —each already leg brings beyond give point support diminish- for relief us enforcing exclusionary “stuck”, captive and becomes return in another securely grounded proscribed Like immobilized. rule in deterrence of all are soon flypaper, hapless centipede does on the conduct.18 Constitution interrogation from prohibit police to extricate ourselves sus- our efforts will, keep self-imposed pects coun- if we dilemma who have waived majority opinion up, immobilized. all us sel will soon have forbidding way interrogation impede aft- are well our and should not We holding of an accused be used will do utterance er a waiver. What open made in it will him unless it is is confuse and baffle —as many judges. ir- or innocence becomes court. Guilt argues majority Although 9, supra. Cf., g., in note e. cases cited unambiguously demonstrates “un record held that In these cases the Court opinion, majority delay” occurring contrary, necessary see a con note 30 after *15 specula- unnecessary retroactively their to resolve it is infect fession does Bayer precise of these moment tion since the See also confession. equivocations either is not crucial theory my majority’s (1947). the case. L.Ed. 1654 they majority are claims nor neither precise how demonstrate able Thornton Cf. equivocal 119-120, App.D.C. 114, rele- is utterance moment of Ap- determining (1966), holding the breadth an uncon vant 827-828 rights. ground understanding proper pellant’s not a stitutional seizure is Search, Similarly, attack; Amsterdam, have would since the for collateral Comment, acting Seizure, bounds within the well A and Section 2255: suspect by questioning 389-390 reason U.Pa.L.Rev. after equivocated, opinion Judge dissenting it would also he had See fortiori proper (D.C. them in Hall have been Bazelon equivo- February 1969) Cir., That the moment where him before. decided totally deter- unrelated to if a search that was he states: “Even cal utterance mining when made can be retroac reasonableness reasonable tively ma- Fourth invalidated under further indicated duct jority’s Amendment, taint dis- a search abstention from such does careful fruits, or, through them, which this issue on either its one cussion 9) judicial process.” (Slip op. p. case turns. (emphasis added.)