United States v. Howard T. Poole

Thus, hold a failure court. hearing

Bryant-type due to unwillingness apply deci- court’s sion, failure to counsel’s and not majority “timely issue, as the raise” the Bryant-

suggests. Indeed, if by counsel’s failure foreclosed claim was may re- promptly, appellant

to act of counsel.

ceived ineffective assistance DeCoster,

In ob- that one of the held we

ligations to make of defense counsel was information

“efforts to secure prosecution and law

possession of the 1204.) (Id. at authorities.”

enforcement short, denied In hearing into full factual

benefits missing report either because Bryant, apply trial court’s refusal Thus, I ineffectiveness.

his counsel’s concluding colleagues my join cannot must suffer it is

that consequences.5 of America

UNITED STATES POOLE, Appellant.

Howard T.

No. 72-1533. Appeals,

United States Court Circuit. District of Columbia

Argued 1973. March Jan.

Decided may Bryant. hearing fin- majority have uncovered A the de- “fail to see how [s] corroborating strongly gerprint prejudice this han- fendant can assert pellant’s defense, have indicated dling or it trial the matter Bryant. satisfy government alleged, prejudicé failed to . . .” The protected suffered, was a denial of Judge,' FAHY,

Before Circuit Senior ROBB, and' LEVENTHAL and Circuit Judges. Judge:

LEVENTHAL, Circuit appeal is an from a conviction rape, robbery for armed and as- armed weapon. deadly sault The of- place February 17, took fense secretary when to a United States parking was in the lot Senator accosted Building shortly of the Senate Office appel- after lunch. It is contended that police lant’s should not evidence, admitted in it been improperly and invol- was obtained was agree, untary. We do af- and we firm.

I. FACTS AND BACKGROUND The Offense complainant testified that she get about into her car when was grabbed pellant on the driver’s door secretary’s side, pointed pistol threatened “blow head head and [her] kept quiet off” unless she over, and moved got then which she did. He into and, waving pistol, drove the car still alley, into an where he or- victim open purse dered her to and hand her money. him her being satisfied, Not and afraid watched, appellant to an aban- drove garage, doned ordered his to take victim raped off her and her. clothes When done, appellant removed a scarf secretary’s purse wiped and portions of the automobile that thought touched, he had for the obvious removing fingerprints.1 purpose of He charge plate then secured a with his vic- name and tim’s address warned her anyone crimes, she told of his boys going “my out and kill to come O’Donoghue, Washington, your Ross D. C. children.” he left. With that (appointed Court) appellant. later, complainant About a week as-. Johnson, Atty., police preparation Julius A. Asst. U. S. sisted a artist Jr., composite Titus, with whom Harold H. U. her S. of a sketch of assailant. Atty., Atty., reproduced Terry, John A. U. Asst. This was distributed to S. appellee. were brief all the area. print 1. One clear later found identified. but not Tr. IV-111. pointed revolver from his holster The Arrest him to halt. and ordered rape, on three weeks after About object, Appellant discarded an later Szewczyk 2, 1971, Police Officers March pistol, contain- identified as .38 calibre clothes, pa- Wyatt, in casual rounds, live and continued five in- trolling squad near their car flight. When he was overtaken Streets, N.E., a tersection 3rd A police searched, the .38 found several only place Capitol few Hill a area cartridges pocket. his calibre сoat Building. Office Senate blocks arrested, Appellant immediately was they p. m., a observed At about 8:15 rights handcuffed and of his to advised they who, (appellant), man on foot thought, to remain counsel and silent. police sketch resembled rapist. They he did noted that Questioning going path person travel the eighteen-year-old youth, Appellant, an engaged another, place one but rather to transported District to the First was crossing changes of direction charged Headquarters, where was designated other than corner streets at paths. dangerous carrying weapon. a point At one the man was seem- p. There until he was held about 11:45 taking ingly path to so as maintain a questioned m. He various about door covert observation a church generally to rob- crimes—he admitted nearby. to woman was seen When a support day to a narcotics beries habit, his $60 church, appellant started leave supply supporting de- but did not changed direction, her direction tails. joined developed when she Appellant of his at was advised shortly after a man who left the church Immedi- least four times on March 2. she did. ately arrest, read Police he was after his Szewczyk point, decid- At this Officer Subsequently, Department at Form 47.2 directly, got appellant ed out to confront m., appel- p. m., p. m., 10:35 badge holding patrol and, again given his his car the Miranda warn- lant hand, questioning from one ings, told as moved identified himself. He his subject appеllant him, another, fa- to the officers to talk with to wanted subject appellant replied, matter were shouting, “what miliar with the new which three done, in. each of these latter have I have I done.” When called On what signed appellant ocassions, statement Szewczyk his a him to take Officer asked stating po- under- pocket, heard and hand out of he fled. The had warnings appellant to pursued, and consented lice stood the and when pulled being presence stopped, turned, pistol, questioned out a without Szewczyk Officer removed service counsel. questions Arizona, Following you

2. now with- If want to answer Miranda lawyer present you have the a will still 16 L.Ed.2d 694 out any answering develop- right stop Metropolitan Department time. You Police to answering any right stop ed reads follows also have the to Form as : lawyer. you to a time until talk WARNING you arrest. Before we ask WAIVER You you you any you questions, had read or read understand what 1. Have must your rights?.............. warning your rights as to are. rights?...... you right these understand You 2. Do silent. You have the remain any questions? you required anything say Do answer 3. wish to to us are not Any- any questions. any time or answer attorney pres- you you you say thing Do wish have 4. can used questioning? during .............. ent court. lawyer Signature line below. of defendant on a 5. You have the to talk to you we and to advice before you during questioning. Date 6. Time............ him with one, Signature lawyer you officer........ and want If cannot afford Signature you. lawyer provided of witness....... will Shortly p. m., after 10 officers Identificatiоn Squad, called in had been view Sex appellant appeared lineup, in a When resemblance com- present, counsel March sketch, posite arrived at the sta- admitting complaining witness, nerv- arresting (Tr. IV-97). tion After identify- ousness, him, identify did not through, Kelly of officers were Officer ing tentatively A someone else. few partner Squad went to and his the Sex later, testifying weeks after before the photo- where took a another room grand jury, Sergeant Way- she asked pubic graph hair sam- bright photograph her show ples 97-98). (Tr. IV— lineup. viewing photograph, On any Kelly suggestion, she he then identified Mr. testified that of- photo- her assailant. This cigarette, fered started to Poole graphic identification, well as an in- establishing appellant, talk trial, court identification at were al- rights appellant been of his had advised objection. lowed in evidence over (Tr. Kelly IV-100). Officer confronted appellant “that he a fact was II. IDENTIFICATION ISSUES good very look-alike as the com- as far posite complainant and if could make mayWe note outset that composite suspect a that well of a a legal significant there no are issues drawing, photograph a that she saw regard identification or the iden suspect, likely she could most procedures. Appellant’s legal tification identify (Tr. IV-98). him.” Officer challenges are obviated United States Kelly possibility also Poole told Ash, that through could identification there fingerprints analysis L.Ed.2d 619 which determined and pubic “At hair. I asked Mr. that time there no to counsel when rape Poole if he committed and he photographs displayed complain to a told Then ‘no.’ he hesitated me a little purpose ant for the of identification of Tague, my bit and he asked Detective suspect. Brown, In United partner, (Tr. leave the room.” IV- U.S.App.D.C. 43, 461 F.2d 134 98). they alone, were When Officer (en (1972) banc), upheld we the show Kelly cigarette, offered Poole another photograph of a counselled line possibility Poole asked about the up in significantly circumstances not high Kelly appellant bond. Mr. told different. they if he wanted to confess could go Squad, to the Sex but there would be promises. Appellant then looked III. OF ADMISSIBILITY bit, said, “Okay, around a little let’s CONFESSION go Squad.” questioning, Sex On he raped said he had secretary, Appellant’s Being A. Waivers After gave details included items Rights Advised His appeared had press. never in the point, At Kelly stopped Officer ap- view, defendant, In our pellant, they Squad, went to the Sex ar- receiving warnings, valid Miranda know riving p. m., appel- about and there ingly rights voluntarily waived his lant,’ again rights, agreed advised of his Appel remain silent and to counsel. to make a written statement offi- given warnings lant was on sitting cer typewriter. pre- at the A Szewczyk street Officer when arrest trial suppress motion to this written p. ed at m. He 8:35 was read the warn statement trial, was unsuccessful. At ings stationhouse at about 9 confession m. was offered in objection. Quantrelle admitted ovеr (Tr. 11-83), Officer given freely with- During in fact sign was form.3 asked Poole to (Tr. 136). any II kind.” Quantrelle conversation, out coercion learned Mr. addiction, heroin appellant sure, To be gave pellant no indication —verbal arrested, years youth of 18 when undergoing he was otherwise —that 10th dropped out of school had 85-86). (Tr. He did not II withdrawal "chronolog young grade. Though he was condition; complain physical his about unacquainted ically, pain; appear he did not to be procedures. shows The record criminal running (Tr. eyes appear did not to be previously arrested as that he had been conversation, 11-73). during this Also many twenty times, included having committed admitted to charges among prior armed rob although robberies, he denied certain subsequently pleaded bery, to which he 11-87). (Tr. complicity in others. (Tr. (Sentencing 8). guilty. A-37), Tr. being Although denies rights had of his each He been advised street, admits that his warned time He understood he was arrested. rights him station- read to at the were they upon ar when read were shortly arrival. He fur after his house 34), (Tr. A rival at the stationhouse expressly he under testified that ther they impatience and indicated when saying, he did stood what again.5 (Tr. 95). him II were read to lawyer, tell and did not not ask to call trial, appellant’s At vol- attack on the police he to them. would talk untariness of his confession was based (Tr. 34-35). record And the reveals A undergoing testimony he that was his two other least occasions heroin withdrawal when he made rights prior appellаnt was advised of his testimony statement. This contradict- Although is testimony to confession. witnesses; fact, appel- in ed all other respects police in of the was certain testimony lant’s to the sudden onset compare appellant, variance with that of severity symptoms and immediate of 20, his g., e. Tr. II with Tr. A (Tr. 30), lend much credence A does not testimony on matter is some own this story. his trial court believed The inconsistent.4 issue is what The one point, police and we on this see credibility. warrant to reverse. appellant ca- had the We conclude that rights. pacity to waive He claims his inconsistently, is now Somewhat ignorant easily young, that he was appellant speculated un- that was not cowed, un- and that as a heroin addict dergoing may have withdrawal, he well dergoing he withdrawal was drug-induced lethargy. in a state of been power his to resist the blandishments of approach This kind of double barrelled interrogators. are not These assertions not could vitiate most if all statements supported the record. addicts, It if counseled. even narcotic say present findings case to supports suffices The record support spec- simply the record trial record establish- incapacity appellant. preponderance ulation about of the ‍​​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌‌​​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‍es “more than a testimony by the trial credited in 1, that was not with- evidence No. aware, judge depicted suspect was and, 2, that his drawal at the time No. rights persisted appellant printed the sub- -when name him that Ms 3. The fact his though ject robbery rape, testified, time, shifted from Officer Quantrelle ordinarily preferable procedure (Tr. 85). times, as as- this suring not unusual. II other any receiving appellant signed a statement officer name and the waivers. warnings testify as to the will be able to See, g., e. Tr. A 33-35. Squad Kelly given. testi- Officer Sex appellant fully rights on to the scene that when he came fied aware of his With already keep silent, police he had elicited from counsel and to rights. special informed of those been not bound to make a effort to inform impatient, stupe- police even rather than either on a waiver of keep counsel, Pettyjohn fied or silent tormented.6 and Frazier establish that substan- approach We set forth in follow purpose protection rights tial of basic Frazier, U.S.App. United interpose separate require- does not this (1973) (en D.C. F.2d 891 ment, though for even advices banc), in held which we that where the given by police rather officer than a procedure the Miranda follow court, significant. they are nonetheless carefully, appellate courts should be slow supra, As the Court stated in Miranda responsibilities. to mandate additional 384 U.S. at 1625: S.Ct. at case, point In the all indications instant voluntary informed and waiver of warning needed order to counsel and to remain si only make aware [defendant] lent. privilege, but also of the conse- quences foregoing only it. B. Claim Detention Un- of Unlawful through an these awareness of conse- 5(a) der Rule quences any that there can be assur- Appellant also that the con contends understanding ance of real and intelli- suppressed fession should have been gent privilege. exercise More- that it was obtained while warning over, may serve to make unduly detained the stationhouse be acutely the individual more aware that presentment fore to a in vio phase he is sary system faced the adver- 5(a) lation of Rule Federal Rules not in —that of Criminal Procedure. v. Unit presence persons acting solely States, ed 77 S.Ct. his interest. 1 L.Ed.2d 1479 like conten A fully rejected tion discussed and extent and nature of a sus Pettyjohn U.S.App. pect’s detention of course be taken D.C. de cert. account, part totality into nied, 1383, L. pertinent circumstances, determining (1970) Ed.2d 676 v. United Frazier whether a confession was inadmissible U.S.App.D.C. 180, 419 F.2d aspect for lack of voluntariness. This of the III, case is discussed section C. holdings say juncture ap What Those were based we at this is that understanding pellant entitled, the primary pur is not in view that the of his pose waivers, Mallory rule is to an automatic interdiction of ensure suspects voluntary rights that a are the advised of their confession on basis of Mallory 5(a). counsel, prevent to silence and Rule the prolonged coercion inherent in custodial C. Claim that Was Invol- intelligent isolation. When there is Confession untary Totality Under Circum- waiver of the to counsel and to of stances silent, remain and the voluntari accused ly interrogation, submits to aim dissenting colleague this of Our concludes accomplished. the rule is totality While that the of circumstances re- logic might as a matter of formal quire appellate of determination lack argued requires that the law immediate of voluntariness in confession. the We presentation magistrate, to a under Rule therefore review the circumstances 5(a), person voluntarily of a who totality talks whose are said to result a (Tr. 11-135) 6. The trial them; court found : ative that he was able to sort contrary, robbery another, On the all the evidence that out one thus indi- heard, except Poole’s, by cating have thinking, Mr. the he he that was that was officers, unanimously alert; various it was testi- at all he was alert that times by going fied to the officers there that were no what on. he talked to was When signs physical They mother, showing of discomfort. he was remorse for any pain not aware that was in or dis- the crime he admitted had committed any kind; cooper- comfort of that he was taking identify him, physical subject Poole was conclusion that would representing pubic hairs, compulsion. to him of his they possibly had could hairs questioning ab- 1. The property of match those found put heavy counsel a sence of burden stating they complainant, and fingerprints.” of on rights, Government show a waiver possibly had some waiving a of but case shows involuntary be- A confession is rights, repeated point and waiver Squad com- a officer shows а cause Sex posite impatience. of Poole’s sketch, developed help with the is a said was says suspect complainant, a youth says frightened was good look-alike, -very if a com- a is large growing when arrested. A good compos- plainant make that could percentage of are arrested offenders drawing, if she was shown ite youths. They uneasy probably when likely photograph identi- “she most could youth presumably arrested. Their fy (Tr. IV-98). pressure him.” along account, into the na- taken incriminating not what evidence prior ture of the offense involved and compulsion refers law means when it determining they record, whether except voluntariness, that undermines police let should be off pathological perhaps highly unusual ac- an arrest. takes it into situations. determining count whether “compulsion” invalidat- Nor was there given probation should be instead of oth- because Sex sentence, or un- er should be sentenced Squad tests officer told But der the Youth Corrections Act. performed normally cases, sex youth immunize the alone does taking fingerprints and hairs. young appraisal from an extent of not, sketch, a like the statement asking criminality. current This means already incriminating, evidence lawyer knowingly questions, if a possibility other statement youth may.be questioned al- waived the may incriminating suspect lawyer though present. (Tr. IV-111). developed. There was offense, assertion that Poole “print positive” rape a though аrrested, given fillip frightened when person (Id.) unknown. still noting gunpoint, that he arrested hair, taking pubic As to emphasize requires circum- that we prints, taking may, have been like the arrest; appellant’s resem- stances seizure,7 and it a search suspicious blance to the sketch and his defend- taken into account been identify street conduct led possibili- opening door to the ant talk; only and ask to it was themselves might evi- ty police the establish shouted, flight, took incriminating him, not it was but dence pistol the and turned drew his toward compulsion his statement that drained a police, that was arrested. analysis not The of voluntariness. by noting inva- that it was an on it can We fail to what basis advanced 4. see finger- personality. fairly pressures was the of So be said that constitut- sion “compulsion photograph. the print and So was a to confess” drawing sample held presented police in that was of the blood the action California, “confronting him the com- in 757, Schmerber [Poole] likely telling posite, 16 L.Ed.2d the victim most him poisoned search, required think it and not in what a we do are not We consider may juncture, appropriate determine a search and seizure circumstances such police cause had reasonable the The under discussion whether be had. pos- rape (as involuntary as well and arrest defendant whether the confession weapon) deadly process. are what case of or session its use denial of due presented incident sеarch incidents of a reasonable as a claim has not been or focused fruit of such an arrest. is the somehow the confession privilege glossed not to involve -the would have to over in order compulsion overriding and be con- to find self-incrimination will: (and process appel- with both due circumstances of arrest sistent being arrested) protection privacy past experience embodied lant’s diluting of taking apprehension Fourth Amendment. the inference of

matching may repeat- suspect’s gunpoint; from an hairs be a arrest at rights step government ed advice inves- as to not reasonable to counsel and speak tigation.8 finding these are The fact the substantiated waiver; pubic nature of Squad from the the use hairs stems the Sex composite reflecting sketch the offense.9 not impermissible pressure straightfor- are a 5. The facts of this case far presentation incriminating ward evi- overbearing cry kind of ; dence and so on. might arguably psychological constitute Perhaps a seasoned advocate would compulsion. There were no threats or suspect-client, say tell anything, Don’t promises. not even a case where This is you say. no matter what show or sympathetic policeman under- voiced provide But Miranda does for waiver standing predicament. of defendant’s counsel. The lack of counsel does not exaggerated may the officer While compulsion become а matter law possibility that additional evidence suspect young because the is a narcotic might found, reality the com- (at addict least with- absence of posite hardly sketch can be faulted. agony), drawal who is advised sub- stringent Even the more case of use incriminating, stantial evidence that agents police of informant or other possibility of the that other evi- automatically ruses does not undermine may dence link him crime. statements voluntariness elic- The ultimate determination of volun- ited. non, and waiver, tariness vel is for this 6. The fact that Poole was a narcotic make, although rightly court to we are negative addict not voluntariness. guided by the trial insofar as this testimony of- credited depend demeanor, must matters, like complain ficer is did captured that cannot be in a cold record. pains day, of withdrawal until the next On our own review of the we record pain did not seem to be in exhibit e. opinion Government has running eyes g., a and that he adducing pertinent met burden its alert, impa- aware of his happened, as to facts what and of show- testimony Appellant’s tient. own is un- ing that the defendant’s confession was dercut when his admission that voluntary and not coerced and that the running police, a half-hour knowingly intelligently defendant arriving stationhouse, before at the privilege against waived his self-incrimi- experiencing any was pains withdrawal nation and his to retained or (Tr. A-30). pointed jurispru- counsel. Under court, dence of this the conviction for “totality of circumstances” deadly assault with a must be weapon be shorthand to denote that vacated,11 judgment but otherwise the greater whole is parts. than the sum of its affirmed. true, That is often but here parts there are of the evidence which So ordered. Allen, F.Supp. 1041, 8. Enten, United States v. 337 10. v. United States & Lemonakis 158 (E.D.Pa.1972) ; Murphy, 162, 1043 U.S.App.D.C. (1973) ; Wise v. 485 F.2d 941 of. 205, (D.C.C.A.1971). Payne, 275 A.2d 214-215 United States v. Kinnard & 150 U.S. App.D.C. 386, (1972). 465 F.2d 566 Cf., Sheard, U.S.App. 9. Benn, U.S.App. United States v. 11. 154 See United States v. 155 9, denied, 180, (1973) ; D.C. F.2d 473 139 cert. D.C. 476 F.2d 1127 United 943, 2784, 412 Johnson, U.S.App.D.C. 28, 93 S.Ct. 37 L.Ed.2d 404 v. States 155 475 (1973) (benzidine penis). (1973). test on F.2d 1297

123 Judge (concur- represented LEVENTHAL, main silent and to be Circuit operated pro ring) counsel, and held this : any purpose hibit detention for the concurring opin- Occasionally I a add conducting interrogations and my majority opinion ion own to product any must detention such court,1 when I have a for the written rulings ex excluded evidence. presen- thought appropriate for that is Supreme tend from the de Court’s 1957 reflection and an individual tation as Mallory cision to this decision court’s authoritative that need pronouncement. be cast as Spriggs States, United 118 U.S. v. Indeed, one of App.D.C. 248, (1964). The 335 F.2d 283 concurring prime of the virtues Judge Spriggs opinion, by Fahy, ac opinion. knowledged “may well be” that ruling place on a our The fact that we prior forms must be filled out by appellant not to be taken as waiver magist prisoner’s appearance before ruling his confes or a concession yet dur rate4 held that a confession under have been inadmissible sion would form-filling period ing inаdmis appel Mallory. particular facts of sible, Mallory not mere since intended night, an arrest at case involve lant’s 5(a) ly procure compliance with Rule judicial no meant that there was which unreliability broadly at the to strike 5(a) presentment Rule until under police in secret of evidence obtained day.2 indicat There are decisions next terrogation, safeguard the consti and to delay reason is that mere right guarantees of to counsel tutional delay “unnecessary within Rule against public compelled trial and 3 5(a).” court is not called self-incrimination.5 doctrine, apply or to de or consider directly Spriggs concerned was not the confes whether termine of whether there could be with the issue police, have inadmissible sion would been interrogations after arrest under Mallory How in the absence waiver. no waiver, there was a doctrine of ever, appropriate to note think it suspect had been contention that given the current status of rule right to counsel the advice preclude does not our determination provided. which a would waiver. effectiveness passages opinion which There are decision, conception Miranda that a “secret Prior to 1966 at the strike interrogation” rul- courts had in a be sustained Federal series could ings given 5(a), vitality suspect’s or full actions basis requires presentment impliedly knowledge, without un- at least and hence necessary judicial officer, reject delay doc- that a waiver the idea would suspect meaningful.6 of his to re- advises could trine Rusk, F.Supp. 1247, (2d See, g., Collins, 1. e. v. Bellei 296 v. 462 792 Cir. States (D.D.C.1969) (three-judge court), 266, 1972) ; Mills, 1252 v. 434 F.2d United States 1060, rev’d, (8th 1970), denied, L.Ed. 28 cert. Cir. (1971) (1971). ; 2d 499 L.Ed.2d 828 Vita, n. 1 v. 294 F.2d United States Appellant approxi- 2. Poole was arrested States, (2d 1961) Lockley ; v. Cir. United mately p. m., magis- at a time when 8 :30 (1959) ; U.S.App.D.C. 163, 270 F.2d could have been trate before whom U.S.App. Washington United readily brought is the available. D.C. 258 F.2d 696 bring practice in the District of Columbia U.S.App.D.C. F.2d at 286. 4. persons evening the court- arrested in the morning, later, after counsel house next Ibid. presentment appointed, un- to conduct it was of little ‍​​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌‌​​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‍conse- 6. The court said that Superi- 5(a) der Rule before quence told the said he what the officer Magistrate. or a Court prisoner (that statement he need make no Marrero, “In the him. and it could be used 450 F.2d 373 See United States affecting varying (2d 1972), 933, denied, different 92 circumstances cert. Cir. experience, (1972) ; persons, 991, in differences S.Ct. 30 L.Ed.2d 808 United 124 tarily States, 119 U. . . . and if confession In United such Greenwell v. given by 49, 962, person

S.App.D.C. 43, made or 968 was such with- following (1964) immediately in six the court raised hours whether, opportunity inde arrest or other detention. . absent an for . pendent legal advice, a tru there can be warnings In view of the Miranda and ly voluntary intelligent waiver of waiver, there need in is no this case prompt presentment. But it remotely even to consider whether the holding limited to a its statement provisions 3501, pur- other of § great suspicion” the “courts look with port to make a confession “аdmissible person, on evidence that an arrested voluntary” operative if it is during delay, period unnecessary of to rescue a confession that violates voluntarily cooperate consented rights safeguarded by constitutional Mi- presumption to a short —in relationship randa. As to the between involuntariness. 3501(c) Mallory it has been said Then came Miranda v. Arizona legislative history the text and was, course, directed to the prime purpose make it “obvious that the police interrogation, vice of secret Congress in the enactment of § protection the Fifth and to the Sixth towas ameliorate the effect of the deci- rights. announcing But in Amendment sion in lay ... to remove de- process a rule of due for the States rejecting alone as a cause for admis- rights by incorpo- which embraced those sion into evidence of a confession.” prohibited question- ration, what it Halbert, 1226, United States v. 436 F.2d persons custody they unless (9th 1970). Cir. But that would rights apprised of those and made open still leave whether 3501 would re- voluntary and effective waiver. quire admission in evidence aof confes- Supreme Mallory, Court referred to merely ground sion attacked not on though “supervisory based rules delay ground after arrest but also on the [5(a)] excluding . . . evidence ob- defendant, without advice toas obliga- statutory tained in default of [a] waiver, subject tion” as related to same considera- harassment. Marrero, United policy, tions of Fifth Amendment 373, (2d 1971). 450 F.2d Cir. noted that “when Federal ar- officials Another 3501(c) may limitation on § always rest an individual comply must as apply in the circumstances of Adams congres- with the dictates States, U.S.App.D.C. legislation.” sional 384 U.S. at 574, although 399 F.2d 16 L.Ed.2d 694. opinion, de 21, 1968, cided June did not discuss the The reference in Miranda to a Federal recently 3501(a). then effective In supervisory statute, going § rule based on beyond required by case, person the Constitution arrested for a rob bery, brought conjunc- Robbery for the Squad must be taken in at 2 p. p. m., tion with m. and 18 U.S.C. booked at effective was then § put lineups possible provision June 1968. The relevant detection of other section 3501 in this connection crimes to which is con- there was no probable 3501(c) tained in that a cause to arrest or detain him. § solely “shall not court be inadmissible excluded legal because the line result of ups, delay bringing person effect, arrest- least as [the m., custody] ed and in the incident before a of an unlawful arrest custody investigation. such confession is found the trial heart of have been made volun- that decision was set forth in attributes, counsel, education and other individual secret impossible accurately U.S.App.D.C. relative to measure friend.” pressures upon prisoners in a Police 335 F.2d Station at 285. purposes Rule the the Judge opinion in subversion these McGowan’s 5(a) made handmaid- to is not words:7 constitutionally defective en of the appel- Here, for the lawful basis investigation. arrest for rested sole- arrest and detention lants’ ly probable robbery charge necessary delay To continue their arrest for other provides presentment for the ble to connect to hold Carolina Avenue period which is determinative here victed. arrest rest arrest, record, we think the effect of Rule excluding only, scope P.M. 5(a) er, effect is ^[******] On on the crime cause, it police without they and that is on the and, of detention for sweep their continued on November essentially cause probable had committed precise station evidence convert, them with other which if not is an custody Mallory exclusionary probable for which presentment afternoon not, thus,. to detain them under shall be illegal store. illegal; matters. Rule into an facts supported they cause at gathered during following purpose for custody general cause least 5 at the North were arrested. detention. shown same There for the an investigation made on the detention its unlawful ar- without appellants’ attempted were con- but, crimes operative policy as a new without of 4:00 respect precise trying proba- belief rath- 5(a) this rule un- no is portance probable rights, 5(a) for 3501(c) admittance trate, son arrested the Adams by persuading awareness of arrest pellant Poole, which there was sidered to the moving reach of sary delay related to that rest him. probable fense Adams would premise which — sketch, possession veering pertinent judicial for court concluded if he is including provision toward opportunity cause Adams, of the cause to if he was questioning a lawful of a confession from his conduct ruling when a Assuming such continued in detention and in specific presentment to hold held, questioning the Senator’s the woman at the church advice of a that would not arrested. stand consistent with arrest him for the law’s probable arrest, custody during man gun, him offense. by about gain secured police resemblance noting without person provision appeared, for the sufficed an unneces- cause to ar- a crime on is there secretary. suspect’s street assumed freedom counsel; officers’ help is con- magis- lawful accept crime is no Rule per- im- for of- unlawful arrest. 3501(e) And leaves intact of course * * * * * * Mallory the reach of that case insofar as unnecessary concept legal delay is, of what makes con- clear that an templation, a “divisible detention” involuntari- arrest not, extraordinary. ness, though per in our view, In- se conclusive deed, necessary to be a one if seems that issue.8 U.S.App.D.C. 206-207, 3501(c) “Moreover, 7. 130 added: 18 U.S.C. § judicial evidence, nullify 577-578. rule only application in circum- restricts its 8. This seems to be the thrust of United to the case stances are not relevant U.S.App.D.C. Robinson, apparently before statement us.” This terse held, 439 F.2d 553 The court in an refers, context of one opinion by Judge Judge Fahy, authored following paragraphs same under giv- dissenting, McGowan the statement point (point III, A), opinion a rul- hospital en the inmate of a mental 5(a)’s non-compliance Rule was, investigating officer a homicide compulsion safeguard operative “left facts, involuntary. Judge Fahy which, safeguards, caused judicial those referred to as a evi- rule of involuntary.” 5(a), dence essential to be to effectuate confessions untary foregoing simply complexities identify not is inadmissible I —it rulings non-compliance propose dispositive with Miranda. Further- not more, privilege Fifth Amendment should handled issue be how compelled waiver, self-incrimination in in absence of this case places responsibility upon appel- adherence to the Pet- but to underscore independently rulings concerning tyjohn late court to determine' and Frazier undisputed rights. a viola- whether facts show of defendant’s waiver protection.1 tion of this constitutional aspect is a final of this case There is not carried This standard review that I me: confess that concerns I must holding by respect out by partic- am somewhat troubled not above noted. Miranda waiver by general problem of case but ular may near the narcotic addict who II hope withdrawal.9 I would the issue of voluntariness On propriate in authorities preliminarily noted that confessions it is arranged departments either have health from in- has resulted when arrange procedure or will able to interrogation by custody police, para-medical whereby appropriate or admissibility here, suspect, in is con- its personnel be available medical would open confession made in trast with a provide hours” transitional “after by guilty, plea perhaps or court medication, perhaps methadone, as an with a confession due to in-cus- contrast Compare procedure. interim United tody interrogation but adhered to rather (2d Collins, 792, v. F.2d 462 796 being repudiated.2 subsequently than 1972). Cir. importance at- is so because integrity tached to the Founders Judge FAHY, (dissent- Circuit personality represented Senior human affirmance). from privilege, Fifth as well as Amendment of such the inherent coereiveness interrogation.3 suspect The character due of such confessions also objection The the admission evi- long recapturing difficulty court rape has should dence of the confessions weight pres- after the events the my opinion. have been sustained person by defendant, sures exerted an accused after court holds that “the in-custody several receiving warnings, valid Miranda know- skilled officers to extract an acknowl- ingly voluntarily waived his guilt edgment while he is remain and to counsel.” As- silent complete domination, their suming to, the con- the waivers referred friend, relative, impartial or observer vol- itself is not for that reason fession 2. in these circumstances is essential Even 9. whether or not it is He need attention evidencing corroborated, the care proposed it be that he him. fact hоwever, the basis of a withdrawal, of the law not to sentence on not under- is near does States, waiver, warnings v. 348 U.S. confession. Smith United cut effective 147, 152-153, 194, 99 L.Ed. 192 rights, 75 S.Ct. immune or that he is established (1954). questioning. from Supreme Among 737, Carolina, Court the decisions of 86 Davis v. North 384 U.S. Boyd States, reflecting Haynes (1966) ; v. 1761, this are United 16 L.Ed.2d 895 S.Ct. 616, 524, 746 Washington, 503, 515, 116 6 S.Ct. 29 L.Ed. U.S. v. 83 S.Ct. (1886) ; Ohio, 1336, (1963) Haley Bram v. ; v. 10 L.Ed.2d 513 (1897) ; 532, 183, 42 596, 601, 302, 18 L.Ed. 568 S.Ct. 224 92 L.Ed. 332 U.S. (1948) ; 68 S.Ct. Florida, supra, York, and the more v. Chambers Malinski v. New U.S. subject in Miran 401, (1945) ; the whole 781, recent review of 65 S.Ct. 89 L.Ed. 1029 1602, Arizona, 436, Tennessee, da v. 86 S.Ct. U.S. Ashcraft v. 64 S. U.S. (1966). (1944) ; 16 L.Ed.2d 694 v. Ct. 88 L.Ed. 1192 Lisenba California, 86 L. U.S. Florida, (1941) ; Ed. 166 Chambers 84 L.Ed. 716 suspect fession. solve the issue a confession counsel. Such evi- voluntariness. Ber its United States also unless excluded because U.S.App.D.C. -, 495 nett, subsequent public trial with dence the (statement Judge position ‍​​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌‌​​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‍jury (1973) counsel before guilt Robinson). reality a trial of the defendant’s substance a trial innocence but Ill police in- in secret what occurred facts on are outlined as that issue pro- terrogation. Yet the Constitution eighteen- Appellant an follows: was vides : drug year-old accosted He was addict. prosecutions, the ac- In all criminal though arrested, street, then not enjoy right a cused shall by plainclothed because two officers public trial, by impartial . thought suspect they he a who resembled jury to be with . . . confronted having had been described committed against him the witnesses neighborhood. ran in the He crimes and to have the Assistance of Counsel pursued pursuing gunpoint. at was defense. his my testified, officer had service later “I U.S.Const, VI. amend. defend- out and I it at the revolver aimеd must The courts enforce substance again telling ant, halt.” “He him provisions and not be satisfied these running shouting, , continued . . . ” with shadow. their See United States shoot, . .1 don’t “. ‘Don’t shoot.’ Wade, (1967); U.S. 224-225 grabbed by caught up him with him and swpra, Miranda, collar, handcuffed him advised a S.Ct. 1602. When confession obtained rights.” him of his constitutional are those circumstances which here visibly shaken. “. . . He was by undisputed, of an secret I think that almost . I the fact frightened eighteen-year-old youth, him, and also both- him shot bothered trial, consti his later these admitted at Appellant a ered had discarded me.” neglected by provisions tutional ran; gun one recovered as he it was court. was arrest- of the officers weapon. carrying ed for a concealed say It is waived no answer to he This was at 8:30 m. being advised to counsel carry- right. being not have The fact did Arrested and booked he ing weapon in- first counsel and the issue voluntariness a concealed he was robberies, terrogated with confessions decided about a number must be magis- being Supreme a that in mind. Court rec- instead of before taken ognizes 5(a) lawyer present F.R. Rule even trate accordance with Miranda, su- robberies coercion He several be exercised. Crim.P. admitted pra, 475-476, not clear ex- and denied others.5 and see It many engaged actly in in- It advised S.Ct. 1602. is claimed was how officers he might terrogating Szewczyk, anything him. he said be used But Officer so, arresting officer, he was him. Even it does follow the said interrogated voluntary. as he ex- whаt he said was —“interviewed” pressed also he he need from First is claimed was advised detectives it — Robbery say But, District, anything. again, issue a detective from Squad A Miranda and then detectives voluntariness remains.4 Squad, called waiver more than remove had been does no Sex testified, on station. also Miranda of a con- another He bar the admission hearing appellant arresting suppression ad- He never advised that au- 5. At committing support legal obligation mitted to robberies thorities were under day habit, F.R.Crim.P., 5(a), denied $60.00 him without heroin to take any specific robbery. unnecessary delay magistrate. confessing before in this omission will discussed further on opinion. interrogated and we con- pos- being de- Mobile Crime Lab also whether he asked any robberies, him had fronted fact we fendant about sibly fingerprints. had not, adding, have a chance some “I didn’t weeks between 8:30 person being advised their where resemblance robberies, Squad, Sex officers, whether a bit Following gesting “Is First District?” He it fair to him 2:00 a. questioned . appellant earlier officers that the Everybody . the the time, yes, m. to a had Squad . superior say,” interrogation interrogation had noticed was arrested composite . Sex raped continuously the two—two or . he was or members of else sir.” Squad evening answered, of this . Mr. general secretary two sketch asked, “that then interrogat- about the Poole fact, and notified. Robbery vicinity three.” turned “Quite they sug- kind of bond would I room the committed the assault and at cause he with the facts we had. he said no. he could leave the room. of which was composite initiate And I ^[*] A Then he asked A Q And he asked me [Witness us, Well, Let me So, -X- asked wanted and I asked Mr. Detective conversation ? identifies the request -X- ask asked him—I myself. to talk with you: Detective about, “well, what ^[*] him—I took the of Mr. Poole be- Tague confronted How -X- composite.] Poole Tague receive?” left just one did ^[*] n time, him you if rape. Kelly to the and Officer Detective Tague Squad the had arrived Sex he had incriminated [Thus himself.] interroga- purpose up and took the him, you I then said to “If did do They approximately p. tion at 10:00 m. it, go tell me now and we will down to appellant took to another room where Squad but,” said, “I don’t the Sex I

they photographed him. He was re- you anything want admit to to quired partially strip they so could you didn’t do.” samples pubic take lowing fol- his hair. The me, go “Okay, Then he said to let’s according then occurred to Offi- Squad.” to the Sex Kelly's testimony: cer own “Well, said, IAnd a minute.” wait pictures After we the took and the said, you telling I me?” “What pubic hairs, cig- I Mr. offered Poole “Well, yes, said, And he I did I it. accepted arette. He it and I confront- raped [naming secretary,” [the] pic- ed him with fact the that we had secretary whose she was]. complainant made, tures through that the Kelly At 10:30 m. decided Officer strong composite, the such a Squad to take him to the Office Sex resemblance of the man who assaulted part Washington.6 another likely identify her that she could most Confronting composite, him with the him. telling likely him the victim would most informed him then hairs identify him,7 taking physical his possibly that we had of could his pubic hairs, personali- invading thus property match the found on ones ty, Miranda, supra, at complainant. representation to him

Then, also, possibly they the time could we didn’t hairs had property fingerprints, match know—We knew we had those found on the stating they report but there complainant, back from the Shortly grand jury graph appellant after arrival there he and at was forced strip put during jail pointed appellant on a shirt. out trial. She also trial. original lineup complainant 7. At the iden- another, photo- tified hut later identified a they this, police promised. denied fingerprints, thus While possibly had some advising Quantrelle confronting admitted we had” Officer the facts “him with n —which help pres appellant was available 8—were not have did brought designed to, did, ex needed when he would be obviously sures interroga- their cell block after central compulsion after confess ert seeing any according denied rape tion. physical officers repeatedly denied had pains testimony. withdrawal indication of undisputed He during interrogations, hopeless but Officer situation confronted grounded Szewczyk bringing unsupported testified that when upon factual then supra, to the central cell block footnote representations, see completed demonstrating had been pressed upon him as early cоmplained morning appellant guilt. “ pains, of withdrawal described is based The situation above sergeant up I told him that it was undisputed Thus the evidence. him to have Central Cellblock confession, it,” patently in- “I did transported hospital for treat- voluntary. unfettered It was not “the sig- said, ment.” The officer also most Malloy v. Ho- exercise of his own will.” gan, nificantly, sergeant “I informed 1, 8, might having withdraw- he said 12 L.Ed.2d method als.” inducing a confession what overcomes testimony undisputed might There is also arise assurance voluntariness jail previous rights. where defendant of the nurse at the waiver of testified undisputed 3.9 She received March There is evi- was here clear by the compulsion. he was seen that on March 3 dence of effective It is not recorded making assistant the medical technical established that “the withdrawal, voluntary.” needle marks statement v. he was “[i]n was Bram milligrams.” forearm, States, supra, on Methadone United at days he for six also testified that at 42 L.Ed. 568. She methadone detoxification. was on foregoing by no means all the by entry show medical doctor, apparently also records undisputed evidence. There also no 1; April on made dispute appellant that was a ad- heroin aspect, “perirectal heroin addiction.” Appellant during dict. claims that the period the interrogation he The Government held under was suffering appellant he heroin twice took was fact that withdrawal pains promised approximately help day of at was his arrest if he As confessed. morning twelve to this Szewczyk matter o’clock in the Officer one testified filling p. m. Heroin addic that while hours later at one he was out an arrest appellant in the form in detail tion discussed some told him of addiction response this court inquiry. to the recent decision of officer’s Of- Quantrelle Moore, U.S.App.D.C. Waybright, ficers who al- engaged denied, so questioning, F.2d cert. also 486 were advised of sup- his addiction. L.Ed.2d At the pression hearing appellant particularly to statement I refer testified that Wright, Judge dissenting opinion he confessed in order to obtain treat- usually supported, that withdrawal ment withdrawal there which he said the interroga- pubic 8. No he was under hairs or fibers It will be recalled from clothing m. 2 until March found tion from about 8:30 car or on the day secretary clothing. early morning 3. The time her March Nor were there clear; any jail identifying fingerprints is not at he was received found on the prison- car, except usually testimony fingerprint that for one there was clear jail brought was the court to the neither are identified nor ers introduced trial. A shirt was later between 6 o’clock. taken from him to be sent to the FBI to see if fibers matched any secretary’s clothing. found on the “Mama, eight said, that he begins mother testified ten after last hours to something. They symptoms had them are to tell dose, withdrawal with acute worrying death,” said, me and he being to 48 to 72 hours. manifested within ” “They going help 1232.) to me. . . (486 more than are It seems wondering hardly during can avoid whether period inter- One likely of his “something get “I had to experiencing at the my like” appellant rogation was off get withdrawal, them back” “I had to fact throes of least some is, my back,” off the mother testified, as repeatedly followed he something. said, “I had to tell pains them point acute withdrawal some worrying They infirmary me to And are death.” admitted to when he was he mother dosage statement that said to his given following day going gains “they help me” slightly larger normal. than methadone the uncontestable credence reason of gains analysis credence of addiction and the fact that during fact pains knew faced withdrawal sugar, given plenty of coffee with custody while in even if their actual candy. The need for sweets cookies and timing is definite. symptomatic of withdrawal. who heard mother on the back’ told his thing fession fendant was withdrawal which finding of the trial simply might heavily upon Crim.P., confession.10 Had istrate, been of his over, drawal or confessing must consider either because of the gation Another In ignored court, drug unusually weighing issue of voluntariness we effect.”11 to that have been by undisputed addiction itself was written having mother, unnecessary delay are in the dark as factor in this ‘get this crucial is that obtain this conversation testified significant required by on the issue uncritical the issue permitted to her bearing gain hope withdrawal vulnerable telephone. The officer “ a confession resolved. T had to off effect needed up and cannot undisputed, my аvoiding item, on case, particularly acceptance of the detailed con- matter, of voluntariness The defendant’s pangs of with- before voluntariness, pains. get it off the issue back’—some- help. More- The talk ignored by signed, been compulsion 5(a), the court them bearing interro- sum to his effect taken mag- F.R. my de- duction at a after interrogation ble withdrawal due to the dents, subjective situation and be resolved sion, missible was exerted der the Lego Moreover, any any signing the written confession. character he was telephone call, station I wish to of intimidation. terrogation rooms. turn The Privacy as There is one further item I think it clear that ^[******] early to what in fact for we cannot 619, confessing. v. including atmosphere results permitted standard requested permission Twomey, note. 30 L.Ed.2d 618 results hours of the factors subsequent by interrogation render the eludes in doubts in that pains, appellant exclusion his addiction and accurately judge in 404 And secret no call carries its own gap place appears operative upon proof use the secrecy accuracy goes with hearing. in confessions compulsion upon appellant. ourselves in his morning, at the our established on in and its inci- help 477, 489, telephone the confes- regard, of evidence made until knowledge to make a in-custody precinct to come prior this should repro- badge possi- inad- him un- in- 92 in “ Emphasis produces 11. reality added. 10. . . in heroin . lethargic tranquil, in user state ” Moore, supra, United States v. (dissenting opinion). F.2d at 1228 457, supra, the one for which he was thus identi- Miranda, at fied, the identification was admitted. And L.Ed.2d see S.Ct. at (Burger, Wright Wade, court and Mc- Gowan, JJ.) opinion reversed. L.Ed.2d Judge McGowan, Judge Wright in which (1967).12 concurred, states: inadmis- I hold the confessions would get purpose 5(a) Rule trial on evi- and remand for a new sible persons lawfully out arrested than the dence other confessions. magistrate. police station before where, here, At least in those cases IV presentment delay in in succeeds turn- foregoing Apart based complicity up in another and more confessions, involuntariness than the for serious crime one my opinion on they were inadmissible probable exists, cause to arrest ground spelled independent out failing Rule made can be irrelevant U.S.App.D. States, 130 Adams United prosecute the for which the crime (1968). The de- C. was made. This is not an arrest arrested fendants that case were technique. available attempted particular afternoon for a precise They this robbery. On facts shown were booked record, put lineups we think the effect of crime and in several 5(a) convert, being presented at least as of 4:00 for sev- to a appellants’ days. P.M. on the afternoon of identified One eral of them having arrest, lineups at their continued detention commit- at one robbery. station into an unlawful ar- ted was never a different He probable respect robbery prosecuted for which he rest without cause for the arrested, con- the trial for which had been but on crime p. warnings importance at m. On of the Miranda initial verbal confession 10:30 Kelly although examination, in find- direct examination Officer said be ob- facies on close ing involuntary advising appellant of his the confessions I have as- served others testimony signifi- rights. is, however, There sumed a valid Miranda waiver. No warning any warn- of the officers who testified as to cance attaches to the oral except weapon ing appellant of his time of the arrest. I-Iis discarded arresting footnote, none had been retrieved one of the have discussed warning being interrogated. testimony respect officers he was not their subsequent warning given p. until the 10:35 warn- And last m. o’clock 11:30 sig- ing given signature, is also of no after the oral confession. satisfactory proof of nificance because the initial confession had There is thus no been obtained at 10 :30 m. waiver time remaining warnings, Of the the earlier to a different room different of- one switched given by rape. Joseph ficers, was Officer and from robberies to the Quantrelle C. appellant’s pen-print- accordingly at m. a serious 9 :00 and bore There is Appellant signing appellant adequately ed name. was warned of denied the waiv- whether respect alleged warning rights in- er. If that and waived his terrogation with to the were critical rape. expert testimony handwriting This was a remand for about the pre- necessary sig- my opinion. arrеst and would be matter unconnected with the Miranda, supra, interrogation. nature has no resemblance whatever to his vious Under prior signature, Szewczyk, at at such admitted and Officer 384 U.S. warnings 86 S.Ot. given might waiver, did the as here have been so-called “witness” to the testi- satisfy interrogators appellant the the fied that he did see not burden of fact appellant continuing oppor- sign Furthermore, assure the it. at 9 o’clock that eve- to tunity opportu- rights. ning begun interrogate “The the had to exercise his to appellant nity rights rape. exercise these must be afford- about the to interrogation.” throughout warning given p. m., him the at “Time: ed to 10:35 disputed 2235”, orally Even if we assume that the was after had con- waived, warning given Kelly. was fessed Officer o’clock to Government episode subsequent Kelly ap- unrelated to the admits that Officer never advised this interrogation was pellant rape. rights, Kelly of ac- about the his and Officer cording testimony to his own the obtained protections response not, thus, precise af- It is vieted. scope exclusionary prompt presentment, it is forded appropriately applied rule lineup but, sit- here rath- determinative which is general policy sweep uation in the wake of Wade. of er, the of during excluding gathered U.S.App.D.C. F.2d at following period of detention an 580. applicable unlawful arrest. The among case majority both the Under views of Bynum precedents our Judge Burger exclusion of the U.S.App.D.C. 368, lineup based on the identification was 262 F.2d 465 in which this as the conse- fact that it was obtained fingerprints court held taken illegal detention, due, quence illegally from one be ex- arrested must view, majority’s arrest to the unlawful cluded, espoused where it robbery probable cause for evidentiary principle anything Judge tried, and, in produced by value such detention is Burger’s view, due the unlawfulness proscribed. (Footnote omitted.) Rule in violation of detention U.S.App.D.C. 399 F.2d at 5(a). In case Judge concurrence, Burger, 577. In his during illegal detention was obtained Justice, now our Chief states: 5(a) in violation of Rule as was the line- Necessary delay reasonably can relate up Adams, and, identification in administratively process to time to an Adams, it was for a different crime booking, fingerprinting accused with Ap- from that which led to the arrest. steps and other even to sometimes pellant rape prior was not arrested for preliminary make some inves- limited Kelly. to the oral confession to Officer tigation into connection with the that, Kelly before, After and not Officer arrested, espe- crime for which he was directed that be booked for the cially possible when it is directed rape. logical apply It would seem exculpation of the one'arrested. How- a confession to another crime obtained ever, presentment delay when during illegal such detention same purpose is for the applied rule to an identification investigation crimes, ‍​​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌‌​​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‍other then resрect to another crime. anWhen “delay” there doubt that the has probable arrest for one offense on cause “unnecessary.” become suspect is utilized to detain a indefinite- purpose ly, investigating by for the U.S.App.D.C. 399 F.2d at lineups, Adams, by in-custody inas interrogation, here, respect 5(a) Adams, plainly inAs crimes, other unlawfulness of present violated in the case. the detention which leads to result- concurring opinion Adams, In evidence. This is so whether that Judge Burger accept did not the “divisi- proba- unlawfulness is attributed to no theory majority. arrest” ble In ble cause arrest for the other crime view, however, Wade, supra, 5(a). or to violation Rule We cannot plied Mallory exclusionary escape duty insisting rule to lineup identification: justice administration of criminal evi- dence be obtained lawful means. Now that the to counsel is an in- tegral part lineup procedure, however, now, be contended warnings given Judge Burger’s are at with reference to con- presentment opportunity curring opinion Adams, and the in that the de- appointed highly counsel rel- tention had not become lineup although 5(a), evant situation. unlawful See under Rule in 5(b); Judge Burger Fed.R.Crim.P. 18 U.S.C. Adams 3006 held a § similar de- (b) (1964). A MaUory Since the rule tention This contention unlawful.

133 interroga- ming very by fact expressed upon the views rest would tion itself.32 that a subsequent Adams court this also a waiver waiver is Miranda today in not indicate 32. Our decision arresting any course, manner, obligation authorities rules thesе disregarded. federal offi- be When can opinions 5(a). comply individual, they must as cials arrest an States, Frazier v. United court in this comply always dictates of the with the 180, 1161 U.S.App.D.C. legislation congressional 419 cases and 136 Hogan generally, & thereunder. See States, Pettyjohn v. (1969), United McNabb-Mallory Snee, Rule: Its 69, U.S.App.D.C. 419 F.2d 651 136 Rescue, Rise, 1 47 Geo.L.J. Rationale respectful- (1969), effect. are to position, ly urge a mistaken that this at 1622. 463, S.Ct. 86 reconsidered, it is in- and should be hardly none of need added that position of the Su- consistent with the warnings given in the the Miranda appears Miranda, preme in Court present appellant of his case advised unnecessary following opin- right portion of the to be taken magistrate. only delay Not before case, the Frazier and ion in that waived, a Miran- was that Pettyjohn opinions to have over- seem waiver, applicable prosecu- da to state : looked application tions, in leaves intact 5(a) federal of Rule and the deci- cases adoption Because of the Con- effectuating provisions. sions its gress 5(a) the Federal of Rule Procedure, and this Rules of Criminal V in of that Rule effectuation Court’s quite It seems clear that the confes- States, McNabb United sions, obtained in the course of viola- 332, (1943), 608, 87 L.Ed. 819 S.Ct. 5(a), tion of Rule would therefore in- Mallory admissible for that reason alone under 449, 1356, 1 L.Ed.2d 1479 Mallory rule but for the erroneous in had little occasion we have ruling waiver of this court above dis- century past quarter rеach the cussed, subsequent unless the enactment dealing Miranda of now 18 U.S.C. constitutional issues § precludes application Mallory interrogations. super- federal These rule. Section 3501 became effective visory rules, requiring production of days June two before Adams person an arrested before commis- court, was decided. The Adams how- unnecessary delay” sioner “without ever, did not consider section al- excluding in de- obtained though it was mentioned without elabo- statutory obligation, fault of ration in petition the Government’s responsive to the were nonetheless rehearing, which was' denied without same of Fifth Amend- considerations opinion September 9, 1968. unavoidably policy ment face us ques- my are serious In view there McNabb, now as to the In States. sus- can be tions whether section U.S., 343-344, S.Ct. modification tained as a Mallory, 455-456, U.S., questions sub- constitutional rule— recognized we both the ref- the Miranda as indicated stance dangers and the I think But the Rule. since erence to rape respect propriateness prophylaxis the convictions with stem- provision to have been 13. The is found the trial relevant of section 3501 voluntarily . . such made . connection contained section per- given 3501(c) made or such confession was that a confession “shall not be inad- immediately following solely delay bringing son six hours missible because of within ” custody] person . . detention. arrest or other [the arrested and before such ... 134 (1962). charges 1209, L.Ed.2d The be S.Ct. 8 325

and its related should not grounds independent of the Court there cites earíier case and the sustained on my goes note, youth rule, pursue on need not reso- sus- “[t]he I pect Haley are, questions. crucial There was the factor v. lution of those 596, Ohio, 599-600, I . however, additional . U.S. [332 several comments respect present 302, (1947)]”, 92 the S.Ct. L.Ed. 224 wish to make adding, petitioner opinion fact that “[t]he of court: the only puts years old this case on the disagreement I the ma have no footing Ohio, Haley supra,” same as v. jority of the crime as to the seriousness though even there was “no evidence of strength appel of or the of prolonged 53, questioning.” guilt apart the confessions. lant’s point is, 54, 82 at 1212. The sim- S.Ct. suggest, however, ap court not ply, youth weighs that the of an arrestee plication error the rule. harmless confession, voluntariness of his error in The court holds there notwithstanding prevalence the of crime the In admission confessions. among young. the the situation seriousness strength For the crime and the other evidence these additional reasons court guilt my opinion following may properly not- now the be considered not proper governing appellate the on of voluntariness the con standards re- issue My Supreme view of the issue fessions. very Court has been voluntariness. position regard gains in this clear In Davis v. North also this. as strength 739, Carolina, 737, several references 86 S.Ct. 1761, 1763, appellant’s capacity, the majority to 16 L.Ed.2d 895 which, though relevant, a criteri- where voluntariness of confes determining on for sion was to be determined in a the issue of volun- collateral upon attack tariness. conviction Court said : majority accepts fact all testimony of the to which the officers upon pro- called We disputed; refers, court yet whether or not ceeding guilt pass or inno- ‘ judge the trial did not resolve these petitioner cence of the atro- disputes factual in their details at the cious crime that was committed. Nor suppression hearing, sug- and I do not are we called determine gest required to do so. whether the confessions obtained are generally He concluded that the confes- Rogers Richmond, true or false. v. “freely given sion was without coercion U.S. L.Ed.2d any kind,” appellant during and interrogation the custodial was not suf- Rogers

In Richmond the matter fering pains.14 My withdrawal conclu- carefully fully explained by Mr. Jus- sion that the confesssions involun- tice Frankfurter for the Court. tary upon undisputed facts, rests rein- forced Moreover, circumstances serious crime situation among young dispute. majority In does not excuse coer- contrast interrogation opposite in-custody partic- cive reaches conclusion ac- youth cepting Quite disputed ular op- arrest. facts as which the posite case, specific finding, pointed trial regards is the court made no out in the dis- opinion inherently famous the Court of coercive charac- Mr. secret, in-custody Justice ter of Florida, Black in Chambers v. supra, pointed supra, Miranda, that Mr. out in Justice 384 U.S. Douglas years 448, 457, for the Court in later L.Ed.2d Gallegos disregards Colorado, 49, 53, reference Su- Miranda, majority lieving importance 14. The finds waiv- had knowingly voluntarily examination, I waived his ers is weakened on close Although ,in to remain silent and to as- counsel. considered the voluntariness issue on the my give sumption footnote above reasons for be- the Miranda were valid. waivers

135 personality, pri- special of his invasion preme to the fact there Court significant knowledge in de- factor to be considered gap our vacy in in results voluntariness, interrogation termining as the issue of goes in an as to what stripping Bram, testimony the mature of the was the room,15 accepts of the and freighter, testimony in determin- second mate on as but their officers not as ing of in- the issue of voluntariness fact16 criminating v. Bram United statement. departed the from has the court That 561-562, States, 532, 18 168 S.Ct. U.S. vol to the proper review as of standard 183, (1897). 42 568 L.Ed. is further the confession untariness of by the court’s discussion demonstrated sample VI taking pubic hair the of accompanying circumstances. Judge and concurring opinion the of Lev majority the officers states place states, “The fact that we enthal right person invade his thus to had the by appellant ruling on waiver our California, citing 384 ality, v. ruling Schmerber not to be taken a concession as 757, 1826, L.Ed.2d 908 86 16 S.Ct. U.S. in confession would have been Sheard, 154 (1966) v. and States Mallory.” sugges United admissible 139, 9, de U.S.App.D.C. 473 cert. аppellant’s, tion is detention under 2784, L. 943, 93 nied, 412 interrogation shortly U.S. from after 8:30 the In Schmerber Ed.2d 404 nearly m. until a. m. not “un 1:30 vio upheld claim of the Court as delay” meaning necessary within the privilege Amendment Fifth lation of the 5(a), Mallory, a F.R.Crim.P. and protection Amendment the Fourth and position not advanced the Govern seizure, unreasonable search delay ment. The fact is in this case the analysis in evidence the admission signed the written confession was before individual sus 'from an taken blood actually longer period than the pected In Sheard of drunkenness. preceded which the confes admissibility of a was as to gave Mallory, the case sion which rise pubic area to the benzidine test Furthermore, possible the Rule. accused, upheld. In court which this unavailability no made present is raised case no issue as Supreme difference Court Mal admissibility any respecting evidence concurring lory. opin This view in the hairs, made pubic no contention is ion, therefore, departs from legal the officers were without application jurisdiction in this contended, obtaining is' them. What the case Rule for which stands. de and, respectfully, cannot reason be See, States, v. Greenwell 119 U. United complete nied, domination S.App.D.C. (1964); 43, F.2d 962 Spriggs U.S.App. its appellant, with assumed over v. thus appellant gun though v. as said that “drew” his the same effect see United To 1926, being Wade, 218, 224, because when threatened officer 87 S.Ct. officer, pursued (1967) ; Tennes turned rather Ashcraft v. toward L.Ed.2d 921, interpreting 152, seе, L. a discard- than the situation as 64 S.Ct. Colorado, Gallegos gun he ran. is also said Ed. 1192 signed warnings 50-51, supra, that he the Miranda 82 S.Ct. one of 370 U.S. at by printing forms his name al- it is consent where said: inquisitori- though signing, only “secret he not denies this obtained Confessions (Chambers Florida, alleged signature processes” has resemblance al 716) signature 84 L.Ed. whatever to his admitted “always signed suspect, officer . . “witness” testified signing. concerning in- that he inner of secret did not fact “witness” details Again, “says weighted against majority quisitions an accused. states frightened” he was when arrested. As pointed my fright- out reference to approach ened leads condition is based court also testimony, particular arresting officer’s own who said several factual conclusions visibly my opinion Thus “was shaken. ...” are unwarranted. presentment officer, 17; judicial (1964) Na before a F.2d 283 D.C. interrogation must, U.S.App.D.C. States, substantive under ples v. 113 United 1962). controlling authorities, (en banc, The be 618 sus- F.2d 307 pended. delay per by jurisdiction It is not cited se which from this two cases by prohibited Mallory, concurring opinion is in- footnote 3 it is the in its terrogation process position. which is restrict- give support In Lock to its U.S.App.D.C. ed. ley United v. (1959), confession 270 F.2d U.S.App.D.C. 335 F.2d at the arrest fifteen minutes after came Washington States, 103 U.S.App.D.C. 396, VII twenty minutes. within problem respect The in this case with suggestion Judge Leventhal’s The possible 5(a), to Rule plication aside from concurring appel- opinion that, since 3501, already of 18 U.S.C. re- § night judicial prevented lant’s presentment аrrest my opinion,18 ferred into does'not turn 5(a) until under Rule on whether there was a violation Rule by morning, a obtained next interrogation during 5(a) clearly appears a violation —such might delay this compliance 5(a) unless with Rule Mallory not be inadmissible under envis- upon waived—but whether Miranda ages possibility arrests could be waivers constituted a of the waiver obli- night need made at followed if gation compliance by the officers night-long, secret to obtain 5(a), with pra. Pettyjohn, Rule as held in su- derogation confession, in stark majority The on this waiver relies obligation Although 5(a). Rule theory complexities to solve the dissenting Spriggs other reasons Mallory Judge issues to which Leventhal Judge States, supra, Burger, v. United difficulty refers. The with this reli- following Justice, now Chief stated ance, however, opinion is the Miranda it- Mallory course to be followed under quotation self. opin- See from when night: is available at ion, supra. L.Ed.2d There Court ex- plicitly preserves vitality in federal it, problem, heart as I see 5(a) cases of Rule and the cases there- fairly is that it can said once be charge under, citing Mallory. Supreme probable there is to a de- cause Court was careful to surround a Miran- person, tained gated. he is be interro- not to safeguards da waiver of de- may He be held to await the signed protect authenticity. its availability judicial reasonable of a of- opinion largely devoted to these safe- ficer. If the arrest occurs at mid- guards. preserving In аt the same time calling night, it absurd talk of vitality federal 5(a) cases of Rule Judge or Commissioner out his bed Mallory, clearly the Court excluded hearing may conduct a which take 5(a) Mallory from the embrace only readily minutes can as applicable Miranda waiver to state regular held in hours the fol- business cases. Such waiver reaffir- lowing morning. Moreover, police of- 5(a) mation of Rule ficers or other witnesses not be mutually Petty- exclusive. In' neither regular available outside business john opinion nor in Frazier sit- this during hours. But the interval while Miranda, respectfully uation noted. I person awaiting the detained Rogers Richmond, supra, Judge the admis- supplement 17. I should somewhat Lev- sibility depend upon of confessions description Spriggs pointing enthal’s reliability upon their the circumstances form-filling process out there was under which were obtained. protracted “unnecessary so amount delay.” Moreover, way Spriggs my 13, supra, in no de- 18. See footnote and text fol- lowing. parts fully explained rule, so silently suggest, cannot be held

destroyed preserves. explicitly what ground respectfully dissent Washington, D. Shannon, T. William rape and its asso- that affirmance appel- court), for (appointed this C. ciated convictions rests confessions Washington, D. Ogilby, B. Remsen lant. that, I add were inadmissible. en- court), also (appointed time, C. I have the ma- noted time appellant. appearance for my tered jority position opinion rests sub- Jr., Ross, Asst. S.U. D. stantially upon Edward an еrroneous standard of Silbert, S.U. Atty., Earl J. whom appellate review of the issue volun- Terry, S. Asst. U. A. Atty., and John tariness of confessions. brief, appellee. Atty., under the I ex- While views Atty. Jr., at the Titus, S.U. H. Harold pressed may justice still remain ‍​​‌‌‌​‌‌​​​‌‌‌‌​‌​‌​​​​​‌‌‌​​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‍filed, entered also time the record case, yet done in think has appellee. appearance for consistently accomplished been HASTIE,* Circuit Senior privilege Before Fifth Amendment com- ROBB, Judge, Circuit pelled self-incrimination, WRIGHT all aside. else Judges.

PER CURIAM: Appellant of a violation was convicted Act, 18 Bomb Threats U.S.C. § (1970). presented 844(e) appeal in evi- to the admission relates pretrial identification voice dence recording. Ap- single UNITED STATES America argues pretrial pellant identifi- v. suggestive un- impermissibly cation was HICKS, Appellant. Joseph K. Denno, 87 S. der Stovall 1967, No. 72-1783. L.Ed.2d Ct. Appeals, United States Court of evidence. inadmissible in therefore District of Columbia Circuit. be that the circumstances well March Argued surrounding can identification voice April Decided suggestive similar circum- respect identifica- visual stances with person photograph. The tion question factors of whether same suggestion supra, Stovall, discussed in 1967, apply 301-302, ear equally to identification made eye. Assuming principles announced pretrial apply do voice identi- Stovall fication, here still the conviction must that, find be affirmed because we case, any of this error circumstances pretrial identifica- the admission tion evidence here is harmless Chapman California, 18, (1967). L.Ed.2d 705 Affirmed.

* sitting by designation pursuant Circuit, 294(d) Third § Of the 28 U.S.C.

Case Details

Case Name: United States v. Howard T. Poole

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 17, 1974

Citation: 495 F.2d 115

Docket Number: 72-1533

Court Abbreviation: D.C. Cir.