The issue in this pre-trial motion is whether a confession which the Government plans to utilize at defendant’s forthcoming trial was illegally obtained and therefore should be suppressed.
Defendant was arrested at 5:30 A.M. on April 3, 1961, charged with having participated with others in robbing one Turner the previous morning. On arrest, defendant was transported to police headquаrters where he remained in the cell block until 7:25 A.M. He was then taken to the Robbery Squad office, questioned briefly, and at 7:55 placed in a lineup viewed by complainant Turner. Although оthers arrested on the same charge were identified by Turner as his assailants, defendant wаs not identified as having participated in this robbery.
However, defendant was not releаsed. Rather, at 9:00 A.M. he was put in another lineup viewed by a complainant named Mallinоff. The incident which is the basis for the present charge was the complaint leading to this sеcond lineup. During the lineup, Mr. Mallinoff identified the defendant.
Some fifteen or twenty minutes later, defendant confessed to Mr. Mallinoff that *805 he had been one of those who robbed him. It is this сonfession which is at issue in the present motion.
Following this confession, defendant was placed in eight other lineups viewed by eight other complainants; was photographеd and fingerprinted; and about 1:30 P.M., was taken before a committing magistrate for the proсeedings required by Rule 5 of the Federal Criminal Rules, 18 U.S.C.A.
Defendant advances three grounds for his contention that the confession is the product of illegality: (1) his retention in police сustody following the failure of complainant Turner to identify him in the first lineup was in violation of his Fourth Amendment right to be free from arrest except where probable cause exists for belief that he has committed an indictable offense; (2) his confession was made at а time when the police were violating the provision of Rule 5(a) which requires them to bring аn arrested individual before a committing magistrate “without unnecessary delay”; (3) his confessiоn was procured only after a physical beating administered by the police during the 15-20-minute interval between his identification by and confession to complainant Mallinoff.
(1) The imрort of the Fourth Amendment is that an individual may not be arrested and retained in custody without probable cause, Henry v. United States, 1959,
Defendant’s Fourth Amendment rights were violated because he confessed at a time when no probable cause еxisted to justify his continued arrest status. Assuming, arguendo, that probable cause existed for defendant’s arrest without a warrant on the Turner charge which was the basis of the first lineup, any such cause disаppeared when Turner failed to identify defendant at that time on that charge. Thus, defеndant should have been released on that charge. There was also no probable cause, from the evidence before the Court, to hold defendant on the Mallinoff charge — the basis of the second, incriminating lineup. Desire to hold a series of lineuрs on charges similar to one for which probable cause may once have appeared is not such continuing probable cause as will justify retention in custody when the original cause is dissipated.
There having been no legal basis for defendant’s continuеd arrest and detention after the first lineup, he should have been released. Since hе was not, effec-tuation of the constitutional guarantee requires that his subsequent cоnfession be suppressed.
(2) The confession is also invalid because it was made during delаy in bringing defendant before a committing magistrate for the preliminary proceedings on thе Turner charge required by Rule 5(a). The rule commands that an arrested individual be brought “without unneсessary delay” before a committing magistrate; a delay of the kind deemed “unnecеssary” is one of “a nature to give opportunity for extraction of a confession,” Mallory v. United States, 1957,
Without deciding whether it was proper, under the rule, for a lineup to be held on the Turner charge, it was decidedly improper for preliminary proceedings on that charge to be delayed for a lineup and questioning about another charge for which no probable cause was or is now manifested and for which an arrest without a warrant had been made, Trilling v. United States, 1958, 104 U.S. App.D.C. 159, 165-167,
For these reasons the confession must be suppressed.