United States v. Howard T. Poole

*123 LEVENTHAL, Circuit Judge

(concurring) :

Occasionally I add a concurring opinion of my own to a majority opinion written for the court, 1 when I have a thought that is appropriate for presentation as an individual reflection and that need not be cast as authoritative pronouncement. Indeed, that is one of the prime virtues of the concurring opinion.

The fact that we place our ruling on a waiver by appellant is not to be taken as a concession or ruling that his confession would have been inadmissible under Mallory. The particular facts of appellant’s case involve an arrest at night, which meant that there was no judicial presentment under Rule 5(a) until the next day. 2 There are decisions indicating that mere delay for this reason is not “unnecessary delay within Rule 5(a).” 3 The court is not called upon to consider or apply that doctrine, or to determine the question whether the confession would have been inadmissible under Mallory in the absence of waiver. However, I think it appropriate to note that the current status of the Mallory rule does not preclude our determination of the effectiveness of appellant’s waiver.

Prior to the 1966 Miranda decision, the Federal courts had in a series of rulings given full vitality to Rule 5(a), which requires presentment without unnecessary delay to a judicial officer, who advises the suspect of his right to remain silent and to be represented by counsel, and held this operated to prohibit any detention for the purpose of conducting interrogations and that the product of any such detention must be excluded from evidence. The rulings extend from the Supreme Court’s 1957 decision in Mallory to this court’s decision in Spriggs v. United States, 118 U.S.App.D.C. 248 , 335 F.2d 283 (1964). The Spriggs opinion, by Judge Fahy, acknowledged that it “may well be” that forms must be filled out prior to the prisoner’s appearance before a magistrate 4 yet held that a confession during the form-filling period was inadmissible, since Mallory is not intended merely to procure compliance with Rule 5(a) but broadly to strike at the unreliability of evidence obtained by secret police interrogation, and to safeguard the constitutional guarantees of right to counsel and public trial and against compelled self-incrimination. 5

Spriggs was not directly concerned with the issue of whether there could be police, interrogations after arrest under a doctrine of waiver, for there was no contention that the suspect had been given the advice of the right to counsel which a magistrate would have provided. There are passages in the opinion which strike at the conception that a “secret police interrogation” could be sustained on the basis of the suspect’s actions or knowledge, and hence impliedly at least would reject the idea that a waiver doctrine could be meaningful. 6

*124 In Greenwell v. United States, 119 U.S.App.D.C. 43, 49 , 336 F.2d 962, 968 (1964) the court raised the question whether, absent an opportunity for independent legal advice, there can be a truly voluntary and intelligent waiver of the right to prompt presentment. But it limited its holding to a statement that the “courts look with great suspicion” on evidence that an arrested person, during a period of unnecessary delay, consented voluntarily to cooperate with the police — in short to a presumption of involuntariness.

Then came Miranda v. Arizona in 1966. It was, of course, directed to the vice of secret police interrogation, and to the protection of the Fifth and Sixth Amendment rights. But in announcing a rule of due process for the States which embraced those rights by incorporation, what it prohibited was questioning of persons in custody unless they were apprised of those rights and made a voluntary and effective waiver. The Supreme Court referred to Mallory, though based on “supervisory rules [5(a)] . . . excluding evidence obtained in default of [a] statutory obligation” as related to the same considerations of Fifth Amendment policy, and noted that “when Federal officials arrest an individual they must as always comply with the dictates of the congressional legislation.” 384 U.S. at 463, 86 S.Ct. at 1622, 16 L.Ed.2d 694 .

The reference in Miranda to a Federal supervisory rule based on statute, going beyond that required by the Constitution for the States, must be taken in conjunction with 18 U.S.C. § 3501 , effective June 19, 1968. The relevant provision of section 3501 in this connection is contained in § 3501(c) that a confession “shall not be inadmissible solely because of delay in bringing [the person arrested and in custody] before a magistrate . if such confession is found by the trial judge to have been made voluntarily . . . and if such confession was made or given by such person within six hours immediately following his arrest or other detention. . .

In view of the Miranda warnings and waiver, there is no need in this case even remotely to consider whether the other provisions of § 3501, which purport to make a confession “admissible in evidence if it is voluntary” are operative to rescue a confession that violates the constitutional rights safeguarded by Miranda. As to the relationship between 3501(c) and Mallory it has been said that the text and legislative history make it “obvious that the prime purpose of Congress in the enactment of § 3501 was to ameliorate the effect of the decision in Mallory ... to remove delay alone as a cause for rejecting admission into evidence of a confession.” United States v. Halbert, 436 F.2d 1226, 1231 (9th Cir. 1970). But that would still leave open whether 3501 would require admission in evidence of a confession attacked not merely on ground of delay after arrest but also on the ground that the defendant, without advice as to his rights and waiver, was subject to harassment. United States v. Marrero, 450 F.2d 373, 378 (2d Cir. 1971).

Another limitation on § 3501(c) may apply in the circumstances of Adams v. United States, 130 U.S.App.D.C. 203 , 399 F.2d 574 , although that opinion, decided June 21, 1968, did not discuss the then recently effective § 3501(a). In that case, a person arrested for a robbery, brought to the Robbery Squad at 2 p. m. and booked at 4 p. m., was then put in lineups for possible detection of other crimes as to which there was no probable cause to arrest or detain him. The court excluded the result of the lineups, as in legal effect, at least as of 4 p. m., the incident of an unlawful arrest and custody for investigation. The heart of that decision was set forth in *125 Judge McGowan’s opinion in these words: 7

Here, the lawful basis for appellants’ arrest and detention rested solely on the probable cause for the belief that they had committed an attempted robbery on November 5 at the North Carolina Avenue store. There was no probable cause to detain them under arrest for other matters. Rule 5(a) provides that presentment without unnecessary delay shall be made on the charge for which they were arrested. To continue their custody without presentment for the purpose of trying to connect them with other crimes is to hold in custody for investigation only, and that is illegal; its operative effect is essentially the same as a new arrest and, if not supported by probable cause, it is an illegal detention.

******

On the precise facts shown by this record, we think the effect of Rule 5(a) is to convert, at least as of 4:00 P.M. on the afternoon of appellants’ arrest, their continued detention at the police station into an unlawful arrest without probable cause in respect of the crime for which they were convicted. It is not, thus,. the precise scope of the Mallory exclusionary rule which is determinative here but, rather, the sweep of the general policy of excluding evidence gathered during a period of detention following upon an unlawful arrest.

* * * * * *

The concept of what is, in legal contemplation, a “divisible detention” is not, in our view, extraordinary. Indeed, it seems to be a necessary one if the subversion of the purposes of Rule 5(a) is not to be made the handmaiden of the constitutionally defective arrest for investigation.

The court concluded by noting the importance of the rights secured by Rule 5(a) — judicial advice of a suspect’s rights, including provision of counsel; and the opportunity to gain his freedom by persuading the magistrate there is no probable cause to hold him for the crime for which he was arrested.

Adams would stand consistent with 3501(c) if that law’s provision for admittance of a confession from a person arrested and in custody is assumed to premise a lawful arrest, and to accept the Adams ruling that a person is considered to be in detention without lawful arrest if he is held, during an unnecessary delay in presentment to a magistrate, for questioning about a crime on which there was no probable cause to arrest him. Assuming such continued reach of Adams, that would not help appellant Poole, for the police officers’ awareness of appellant’s resemblance to the sketch, his conduct on the street in moving toward the woman at the church and veering when a man appeared, and his possession of a gun, sufficed for probable cause to arrest him for the offense against the Senator’s secretary. The pertinent questioning of appellant related to that specific offense.

And of course 3501(e) leaves intact the reach of Mallory insofar as that case makes clear that an unnecessary delay after arrest is evidence of involuntariness, though not per se conclusive on that issue. 8

*126 I identify the foregoing complexities not to propose dispositive rulings on how the Mallory issue should be handled in this case in the absence of waiver, but to underscore adherence to the Pet-tyjohn and Frazier rulings concerning waiver of defendant’s rights.

There is a final aspect of this case that concerns me: I must confess that I am somewhat troubled not by the particular case but by the general problem of the narcotic addict who may be near withdrawal. 9 I would hope that the appropriate authorities in the police and health departments either have arranged or will be able to arrange a procedure whereby appropriate para-medical or medical personnel would be available “after hours” to provide transitional medication, perhaps methadone, as an interim procedure. Compare United States v. Collins, 462 F.2d 792, 796 (2d Cir. 1972).

. See, e. g., Bellei v. Rusk, 296 F.Supp. 1247, 1252 (D.D.C.1969) (three-judge court), rev’d, 401 U.S. 815 , 91 S.Ct. 1060 , 28 L.Ed. 2d 499 (1971).

. Appellant Poole was arrested at approximately 8 :30 p. m., at a time when no magistrate before whom he could have been brought was readily available. It is the practice in the District of Columbia to bring persons arrested in the evening to the courthouse next morning, and later, after counsel is appointed, to conduct the presentment under Rule 5(a) before a judge of the Superi- or Court or a United States Magistrate.

. See United States v. Marrero, 450 F.2d 373 (2d Cir. 1972), cert. denied, 405 U.S. 933 , 92 S.Ct. 991 , 30 L.Ed.2d 808 (1972); United States v. Collins, 462 F.2d 792 (2d Cir. 1972); United States v. Mills, 434 F.2d 266, 273 (8th Cir. 1970), cert. denied, 401 U.S. 925 , 91 S.Ct. 908 , 27 L.Ed.2d 828 (1971); United States v. Vita, 294 F.2d 524 , 529 n. 1 (2d Cir. 1961); Lockley v. United States, 106 U.S.App.D.C. 163 , 270 F.2d 915 (1959); Washington v. United States, 103 U.S.App. D.C. 396, 258 F.2d 696 (1958).

. 118 U.S.App.D.C. at 251 , 335 F.2d at 286 .

. Ibid.

. The court said that it was of little consequence what the officer said he told the prisoner (that he need make no statement and it could be used against him. “In the varying circumstances affecting different persons, with differences in the experience, *124 education and other individual attributes, it is impossible to measure accurately the pressures in a Police Station upon prisoners under secret interrogation without counsel, relative or friend.” 118 U.S.App.D.C. at 250 , 335 F.2d at 285 .

. 130 U.S.App.D.C. at 206-207, 399 F.2d at 577-578 .

. This seems to be the thrust of United States v. Robinson, 142 U.S.App.D.C. 43 , 439 F.2d 553 (1970). The court held, in an opinion authored by Judge Fahy, Judge McGowan dissenting, that the statement given by the inmate of a mental hospital to the police officer investigating a homicide was, under the facts, involuntary. Judge Fahy referred to Mallory as a judicial rule of evidence essential to effectuate Rule 5(a), and added: “Moreover, 18 U.S.C. § 3501 (c) does not nullify this judicial rule of evidence, but only restricts its application in circumstances which are not relevant to the case before us.” This terse statement apparently refers, if one may judge from the context of the following paragraphs under the same point of the opinion (point III, A), to a ruling that the non-compliance with Rule 5(a)’s safeguard “left operative the compulsion which, without those safeguards, caused the confessions to be involuntary.”

. He may need attention whether or not it is proposed to question him. The fact that he is near withdrawal, however, does not undercut an effective waiver, after warnings of his rights, or established that he is immune from questioning.