Full opinion text
PER CURIAM. These appeals were heard together. In regard to Count 3 in No. 13069, a majority of the court are of opinion there was no error. In regard to the other counts of No. 13069, and in each of the other cases, a majority of the court are of opinion there was prejudicial error in admitting in evidence certain statements the police obtained from appellant. The conviction on Count 3 is affirmed. The other convictions are reversed. DANAHER, Circuit Judge. We consolidated the appeals in these cases because the common question involved the receipt in evidence of Trilling’s confessions or admissions made to police before Trilling was arraigned. Were the circumstances such that all must be excluded? A codefendant, Watts, had pleaded guilty to all counts, but Trilling had moved to exclude all confessions and admissions on the ground there had been unnecessary delay in arraignment. In the separately tried cases, hearings out of the presence of the jury were conducted by three different District Judges, each of whom concluded that the confessions should be received, subject to determination by the jury as to their voluntary character. While the appeals were pending, the Supreme Court decided Mallory v. United States. As there applied, Fed.R.Crim.P. 5(a), 18 U.S.C.A., seems to permit differing results in varying situations. It is not simply a matter of hours, one way or another, but of police purpose and conduct in the light of circumstances. Thus, confessions of guilt as to the first two counts of case No. 13069 and as to each of the two counts in Nos. 13165 and 13212 are in a different category from an admission of guilt as to the third count of No. 13069, wherein Trilling and Watts had been charged with breaking and entering a warehouse owned by Johnson & Wimsatt, Inc. Upon ample “probable cause,” Trilling had been arrested solely on this charge. A police officer, a long-time friend of the family, who had had nothing to do with Trilling’s arrest, after learning that Trilling had been locked up pending arraignment, confronted Trilling with the evidence against him, and he readily admitted his guilt. We believe that, under the circumstances to be set forth, the Mallory decision does not call for the exclusion of Trilling’s admission. Out of sequence, turning first to this Johnson warehouse count, a majority of the court are in agreement that the conviction should be affirmed. We take up the Johnson warehouse count in Part I. I Working the midnight shift, from 12:00 until 8 :00 A.M., September 1, 1955, Detective Trammelle and Detective Davis were patrolling in the warehouse district where there had been a series of burglaries. About 2:15 A.M., they drove up to a warehouse owned by Johnson & Wimsatt, Inc., located on Twenty-fourth Place, N. E., a dead end street. There were four or five other warehouses on that street. There, within a few feet of the Johnson warehouse, they came upon a Dodge car, headed toward the street’s dead end. As the police approached, Trilling got out from behind the wheel. The police asked if it was his car and he said no, he was driving it for Watts. He produced a driver’s permit and also the registration card for the car. While Trammelle talked with Trilling, the officer noted in his book the names, permit numbers, and addresses of Trilling and Watts. Davis in the unlighted warehouse district went about with a flashlight examining the buildings but discovered no damage. Trilling and Watts were not then further detained. The Company’s yard manager, one Williams, arrived at the Johnson warehouse about 6:45 on the morning of September 1. He discovered that a window in one of the rear rooms had been broken, that the office had been ransacked, that invoices and papers had been scattered about, and that someone had attempted to open an inventory file resembling a safe. He notified police immediately. Pursuant thereto, during the course of the day, September 1, a technician, Officer Miller, from the Identification Bureau, visited the Johnson warehouse to examine the premises for possible latent fingerprints. He discovered that a pane of glass had been broken out of a window, and he dusted with a fine camel’s hair brush on the glass to pick up whatever moisture or oil or perspiration might have been left on the glass by the prowler’s fingers. He explained that the powder adheres to and forms an impression where a fingerprint has been left. He found prints on the inside of the pane of glass, and thereupon brought the latent prints to the identification office where they were photographed and “blown up.” He secured prints of a man’s right forefinger and the right middle finger. The next midnight roll call having been completed about 12:01 A.M., on September 2, Trammelle and Davis having reported for duty at the Twelfth Precinct, a notation was read off from the teletype from Central Headquarters that the Johnson warehouse had been entered the previous night. They went back to the Identification Bureau of the Metropolitan Police to determine whether or not fingerprints had been found at the scene by the examining officers, and then learned of Miller’s discovery. Trammelle asked that the officers in the Identification Bureau check the fingerprints, and Trammelle was informed that the fingerprints had been identified as those of Trilling found on the premises. Trammelle and Davis then went looking for Trilling whom they placed under arrest at his home about 5:30 in the morning of September 2. Officers Trammelle and Davis questioned Trilling about the break at the Johnson warehouse, both in the car on the way to the lockup and after their arrival. Trilling denied all knowledge of the episode. Trilling was booked at No. 12 Precinct at 7:14 A.M., September 2, 1955, and later was transferred to the Central Cell Block at 7:40 A.M. Neither Trammelle nor Davis had any further conversation with Trilling after he had been booked. Without more, there not only was ample “probable cause” for the arrest of Trilling, but there was overwhelmingly enough evidence to sustain his conviction. If there never had been another count in this case, and if there had been no other evidence, it would seem impossible that any jury could have failed to convict Trilling of breaking into the Johnson warehouse with intent to steal. But there was more. The blown up photographs of the fingerprints found by Technician Miller at the scene were compared with blown up photographs of current fingerprints of Trilling taken after his arrest, on September 2nd. Miller’s qualifications as a technician were conceded. A bench conference established that immediate identification of the Trilling prints, found at the warehouse, could be made since the officers could readily compare the latent prints found on the glass with those of record following Trilling’s earlier conviction. The latter could speedily be located since Trammelle had Trilling’s name. The trial judge pointed out that reference to the 1948 prints should not be made lest counsel in that manner get before the jury the existence of Trilling’s prior record. Defense counsel sought, and was granted, permission to examine the witness before the exhibits should be offered in evidence. Miller testified that throughout the history of the use of fingerprints for purposes of identification, it had never been shown that any two persons’ fingerprints have been the same. Questioned by the judge as to whether or not there was a minimum basis upon which points of identification might depend, he testified that some eight or nine such points constitute a minimum. In the exhibits before the court he ruled off some twenty points of identification and showed that there were more than twice the minimum number of points established and others that could have been ruled off. Defense counsel elicited from the witness an explanation of the four different basic types of fingerprints, loops, whorls, arches and tinted arches. After the prints had been received in evidence as Government’s exhibits (one set, those found at the warehouse, the other set, those made at headquarters following the arrest), cross examination went forward, each member of the jury having been handed photographs of the exhibits. The witness described the process of identification. The fingertips of the hand and the soles of a person’s foot are covered with small holes which secrete oils and perspiration which form in lines very much like a chain. Tiny as a pinpoint, each of these holes makes its imprint. The witness explained the piece of glass from the Johnson warehouse window had been grasped by one whose thumb was on the outside and whose fingers were on the inside, thus making an impression which loomed up after being dusted with a fine black powder which adhered to the oil or perspiration which had come from the minute holes in the fingers. Defense counsel next brought out that a second point of identification involves the relationship of certain lines of holes to a number of other lines in the fingerprint. So, in relation to No. 3, in relation to No. 4, and to yet other points in the print, a basis for comparison was established. Without here setting forth further detail, it may be understood that the witness explained item by item. He was questioned as to ridges, arches, bends and lines, until finally we find the witness at a drawing board. There for the jury he drew out the details, culminating in a conclusive demonstration of the basis for the technician’s opinion as an expert that the two sets of fingerprints were the same. The proof was irrefutable and complete. Trilling did not take the stand. Detectives Trammelle and Davis had gone off duty about 8:00 A.M. Before Trammelle left headquarters he conferred with Detective-Sergeant Friel of the Safe Squad and briefed him upon the events of the previous thirty hours. Sergeant Friel for many years had known Trilling’s parents. He sent for Trilling about a quarter after 8. His testimony shows: “I talked to Trilling after I had received certain information from Detective Trammelle and confronted him with certain things, and after confronting Trilling with those things, why Trilling admitted breaking into that place with the co-defendant. “Q. At what time was this, approximately? A. About 8:20 or 8:30.” At 8:40 Sergeant Friel’s presence in court was required and he left Trilling in the Identification Bureau with Sergeant Clark. Sergeant Friel did not reduce to writing the admission by Trilling. The admission was not necessary to establish a case against Trilling on this count. The disclosure was not necessary to support the arrest or ultimately the conviction. It was not the product of coercion in any respect whatever. It was voluntarily given within a few minutes of Trilling’s being confronted by Friel with the evidence already amassed against him. Of course we know that Trilling was not then arraigned, but as to the foregoing aspect of this case, the failure to arraign is immaterial, even if detention thereafter became illegal. Sergeant Friel’s testimony, although not necessary to the result here and in that sense immaterial, was not erroneously received, indeed it seems to come squarely within the Court’s ruling in United States v. Mitchell. “* * * [T]he foundations for application of the McNabb doctrine are here totally lacking. Unlike the situation in other countries * * * under the prevailing American criminal procedure, as was pointed out in the McNabb case, ‘The mere fact that a confession was made while in the custody of the police does not render it inadmissible.’ [McNabb v. U. S.] 318 U.S. 332, at page 346, 63 S.Ct. [608], at page 615, 87 L.Ed. 819. Under the circumstances of this case, the trial courts were quite right in admitting, for the juries’ judgment, the testimony relating to Mitchell’s oral confessions * * *." As the opinion proceeds, Mr. Justice Frankfurter points out: “Obviously the circumstances of disclosure by Mitchell are wholly different from those which brought about the disclosures by the Mc-Nabbs. Here there was no disclosure induced by illegal detention, no evidence was obtained in violation of any legal rights, but instead * * * the prompt acknowledgement by an accused of his guilt, and the subsequent rueing apparently of such spontaneous cooperation and concession of guilt.” It is true that Trilling then could have been arraigned. As to the Johnson warehouse count, this man had not been taken to police headquarters for the purpose of interrogation looking to the extraction of “damaging statements” to support his arrest. Quite the contrary, probable cause was complete. I do not understand that any of my colleagues challenge the conclusion of sufficiency of probable cause. Moreover, the “damaging statements” were not even necessary to support an ultimate finding of guilt within the meaning of the Mallory case. Just as in the Mitchell situation, Trilling was not arraigned, but his admission should not be barred even if it may be said his later detention became illegal, as the Mitchell case points out. “But in any event, the illegality of [Trilling’s] detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct.” (Emphasis added.) The command of the Rules and their purpose are fully explained in Mallory which we followed in our second Watson case, where Watson’s detention was for the purpose of extracting damaging statements and a reenactment of the crime to support his arrest and, finally, his guilt. Just as the circumstances in Mallory precluded a holding that arraignment had not been accomplished “without unnecessary delay,” the converse is true here. The questioning of Trilling by the arresting officers was fruitless and met only with denials. They booked him at No. 12 Precinct at 7:14 and had no more talk with him. He was not taken to headquarters to be subjected to a process of inquiry. He was not taken there for the purpose of extracting a confession. The arresting officers had sought admissions, yes, but in the face of his denials they locked him up to await arraignment. No one else talked with him until Friel spoke with him about 8:15 or 8:20. By then Trilling had been transferred to the Central Cell Block awaiting arraignment, which could readily have occurred as the courts were about to open. What next happened was that the Safe Squad intervened, as well as the officers of Homicide who were interested in the Aristo murder case. Instead of being arraigned at court, where full compliance with the requirements of the Rule could have followed, Trilling was taken for questioning in cases wholly unrelated to that for which he had been validly arrested. Thereafter followed the circumstances developed in Part II of this opinion. But Trilling’s intervening admission to Friel in no way came within the interdiction of the Rule and the Mallory application of it. On the contrary, the admission to Friel within a few minutes of an interview and in no respect shown to have been the product of wrongdoing by police should be governed by the Mitchell case, supra. Thus weighed, the admission to Friel was properly received. In any event, the evidence was overwhelming as to Trilling’s guilt on the Johnson warehouse count. It would seem the jury could properly have come to no other conclusion on this count. Thus, even if the statement to Friel could be said to have been erroneously admitted, this judgment as to the third count in No. 13069 should stand Affirmed. II Here I state my separate views as to the impact of the Mallory rule as applied to the written confessions received as to the first two counts of No. 13069 and the remaining counts in cases Nos. 13165 and 13212. I agree that the confessions should have been excluded, and as a consequence the convictions must be reversed. The illegality under Rule 5(a) which bars the evidence stems from the conduct and the purpose of the police, as the. Supreme Court has pointed out in the cases I shall cite. I do not understand that the Supreme Court has said the mere passage of time is the touchstone as to incompetence of a prisoner’s admissions while in custody. Questions are not forbidden but an arrest and conviction are not to depend upon the answers during a period of what may become illegal detention. Thus the Rule requires arraignment “without unnecessary delay,” but reasonableness, dependent upon circumstances, is still a factor. I do not suppose a man intoxicated when arrested, or one confined in a hospital and there placed under arrest, must be arraigned any more promptly than circumstances permit. I would assume, to illustrate, that one charged as a rapist and known only to his victim might be placed in a “lineup” for purposes of identification. Having been so identified, his admissions thereupon are not automatically to be barred. I would assume it is still the rule that the burden is upon the accused to show that his admissions have been induced by illegality. I take it, then, that the “brief delay” mentioned in the Mallory case must be related to varying circumstances. Accordingly the mere passage of time which reasonably may elapse in differing situations following a valid arrest, will not cause to be excluded contemporaneous admissions. But, police elicitation from the accused during a period of unlawful detention of damaging statements to support the arrest and finally guilt, is a wholly different matter. So applying the test, as I see it, the circumstances do not bar the oral admission as treated in Part I, supra. Measured by the same yardstick, the confessions on all other counts must be excluded as the cases I shall cite seem so clearly to require. First, I dissociate myself from Judge Bazelon’s opinion, and particularly do I dissent from his conclusion that confessions obtained by questioning an accused before arraignment are not admissible in evidence. I do not understand the Mallory case so to hold. Surely if the Supreme Court had intended to adopt any such automatic rule of exclusion, it would have been a simple matter to say so. On the contrary, the Court actually said that “the duty enjoined upon arresting officers to arraign ‘without unnecessary delay’ indicates that the command does not call for mechanical or automatic obedience.” Rather, as I see it, the Court was saying that the Mallory detention of a suspect was unlawful under the circumstances so carefully spelled out, that the unlawful detention produced the disclosure, and therefore the confession, being “the fruits of wrongdoing” by the police officers, was rendered inadmissible. In so deciding, but with emphatic stress upon a different circumstantial aspect, the Court was simply applying the rule as traced out in Tillotson v. United States. There the problem before us specifically involved the admissibility of a confession by a suspect before arraignment. We concluded the trial judge had not erred in receiving the confession although it was a razor-thin question whether or not the appellant had sustained her burden of showing that there had been an unnecessary delay in arraignment. The Supreme Court had denied certiorari in the Tillotson case only the year before the Mallory case. On the other hand, we found no basis for distinction between the Mallory circumstances and those developed in the second Watson case. There we followed the Court’s Mallory teaching that an accused is not to be taken to police headquarters for the purpose of extracting damaging statements upon which to base a charge of crime and ultimately to establish his guilt. He was not to be taken to headquarters to be subjected to a “process of inquiry” to determine whether or not he should be charged. Mallory held simply that a suspect “is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” (Emphasis supplied.) In short, police are not to arrest a suspect and then “use an interrogating process at police headquarters in order to determine whom they should charge.” Thus Mallory squarely accords with Upshaw v. United States where the “petitioner was illegally detained for at least thirty hours for the very purpose of securing these challenged confessions.” Similarly, Mallory is to be reconciled with United States v. Carignan which explained that “Mitchell’s confession, made before commitment, but also before his detention had been illegally prolonged, was admitted as evidence because it was not elicited ‘through illegality.’ The admission, therefore, was not ‘use by the Government of the fruits of wrongdoing by its officers.’ Upshaw v. United States, supra, 335 U.S. at page 413, 69 S.Ct. at page 172, [93 L.Ed. 100].” Applying the rule of Mallory then, as I read it, after making a valid arrest the officers had failed to arraign Trilling “without unnecessary delay” at an hour when reasonably they could, and as the law requires, should have arraigned him. They detained him for the very purpose of eliciting from him “damaging statements” upon which ultimately to establish his guilt of the six charges of breaking and entering and theft, respectively, involved in the counts under consideration. They had no other evidence to establish his guilt as to these counts. Thus Trilling’s detention in order to procure the challenged confessions was illegal. Because that detention was illegal and actually produced the disclosures, the confessions constituted “fruits of wrongdoing.” Therefore they were improperly received in evidence, and these convictions must be Reversed. BURGER, Circuit Judge, concurring with Judge DANAHER: I think the result reached by Judge DANAHER is compelled by the Mallory case and therefore concur with him, but only because I conclude we are not free to do otherwise. I do this reluctantly because what Judge Prettyman has said makes sense and ought to be the law. The steady expansion of the meaning of “unnecessary delay” by the courts since Rule 5(a) has been in effect suggests to me that this area of the law cannot be developed properly on a case-by-case basis, even though that is sometimes appropriate; Rule 5(a) should be re-examined by the rule making process or by Congress. BAZELON, Circuit Judge, with whom EDGERTON, Chief Judge, concurs: Appellant was arrested on Sepember 2, 1955, for a housebreaking at the premises of Johnson & Wimsatt, Inc., the crime charged in count three of No. 13069. Detective Davis, one of the two arresting officers, testified that they arrested him between 5:00 and 5:30 A.M. and that they questioned him, in an attempt to obtain a confession, for an hour or an hour and a half, commencing in the police car en route to headquarters and continuing after arrival. They made no attempt to bring appellant before a committing magistrate as required by Rule 5(a), Fed.R.Crim.P. Being unsuccessful in their attempts to obtain a confession, they booked appellant at about 7:40 A.M. on an “open charge.” (R. 201-02, 213-14.) Detective Trammelle, the other arresting officer, briefing Detective Sergeant Friel, a member of the next shift, preparatory to going off duty at 8:00 A.M., told him that appellant had already been “made” on the Johnson & Wimsatt charge, but, despite questioning, had refused to confess. (R. 86, 951-52.) The new shift also made no attempt to comply with Rule 5(a). Instead, Detective Sergeant Friel took over the questioning and at 8:45 A.M., after about a half hour of additional questioning, in which he pointed out to appellant “that they had made him on fingerprints and he was foolish to stand there and try to beat a case like that,” appellant finally confessed the Johnson & Wimsatt crime. (R. 611-12, 951-52.) He had then been held more than three hours. Thereafter, beginning at about 10:00 A.M., appellant was questioned by relays of other officers about the crime he had already confessed and also some fifteen unsolved housebreakings and an unsolved homicide. That questioning elicited additional admissions about the Johnson & Wimsatt crime and oral confessions of the other crimes involved in this appeal and of several not here involved. At about 2:30 P.M., one of the confessions was reduced to writing and signed. Thereafter, between 3:00 and 4:00 P.M., appellant was brought before a judge of the Municipal Court, was charged with the one crime he had confessed in writing, waived preliminary hearing and was committed to jail in default of $5,000 bail. Instead of being removed to jail as the commitment required, however, he was taken back to police headquarters, in the company of two deputy marshals, and the police resumed questioning him. In the course of that resumed questioning, which continued until about 10:30 P.M., two more of appellant’s oral confessions were reduced to writing and signed. I would reverse all the convictions here involved because, with respect to each, one or more of the above-described confessions were erroneously received in evidence over appellant’s objection. In my opinion all were inadmissible. The Pre-Commitment Confessions The duty of an arresting officer under Rule 5, Fed.R.Crim.P., is to bring the arrested person before a judicial officer without unnecessary delay. As the Supreme Court said in Mallory v. United States, 1957, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479, after arrest “[t]he next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be ‘booked’ by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.” To me, this means that confessions obtained by questioning an arrested person before thus arraigning him are not admissible in evidence. The various confessions appellant made before he was taken to the Municipal Court were therefore inadmissible. I see no reason for distinguishing in this respect between the one confession made at 8:45 A.M., and the several made between 10:00 A.M. and 2:30 P.M. That the 8:45 A.M. confession was obtained before the beginning of the business day does not make it admissible. As we pointed out in Akowskey v. United States, 1946, 81 U.S.App.D.C. 353, 354, 158 F.2d 649, 650 “both by law and practice” a prisoner may be brought before a committing magistrate “at any hour.” The prosecutor in his oral argument before us in Mallory v. United States, 104 U.S.App.D.C._, 259 F.2d 796, conceded that a confession is not made admissible merely because it is obtained at an hour which is inconvenient for arraignment. In that case, however, he successfully argued that it was permissible to hold the prisoner at police headquarters from the time of his arrest at 8:00 P.M. until some time before noon of the next day without arraigning him and to question him and obtain a confession during this period of delay of arraignment. Similarly here he argues that it was permissible to put off appellant’s arraignment from his arrest at 5:00 or 5:30 A.M. until between 3:00 and 4:00 P.M. and to question him and obtain confessions during that period of delay. Both here and in the Mallory case, it should be noted, the police were dealing with an ignorant and friendless prisoner. When it comes, however, to a prisoner who is not ignorant and friendless, the Government has sometimes found it both proper and possible to bring him before a committing magistrate in the middle of the night. Thus, according to an undisputed affidavit, in the recent Hoffa case, the defendant was arrested at about 11:00 P.M. and was brought to the United States Courthouse at about midnight. His request that his counsel be called was complied with and counsel arrived at about 12:30 A.M. At about 1:00 A.M., the United States Commissioner arrived and the commitment proceeding began. Nor is the 8:45 A.M. confession admissible on a theory that the police have a right to some questioning of the accused before arraigning him. The Government points to the Supreme Court’s statement in Mallory that “The duty enjoined upon arresting officers to arraign ‘without unnecessary delay’ indicates that the command does not call for mechanical or automatic obedience.” 354 U.S. at page 455, 77 S.Ct. at page 1359, 1 L.Ed.2d 1479. From this it is argued that circumstances may justify questioning the accused before arraigning him. The conclusion does not follow from the premise. What the Court meant by the quoted language is made plain by the example it immediately gave: “Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession.” Ibid., emphasis supplied. Even if a “brief delay” in arraignment may sometimes be proper or even inevitable, it does not follow that the police may question the prisoner during the delay for the purpose of getting a confession. This is especially true when the purpose of the delay itself is to provide an opportunity for the questioning. Criminal cases involve a conflict between the defendant’s personal rights and what the police and the prosecutor think is effective law enforcement. Any consideration of that conflict must start with the proposition that the defendant is presumed to be innocent until due process of law finds him guilty. That process is not the province of the police. Their function is to arrest the defendant and bring him before a judicial authority. Rule 5 and its predecessor statutes, which were the basis of the McNabb rule, are an expression of the deep antipathy of Anglo-American law for any imprisonment except by judicial authority. Centuries ago in England, in resistance to the royal practice of arbitrary imprisonment, the rule was developed that a person may be imprisoned only by order of a magistrate after a hearing which demonstrates his probable guilt of a specific charge. Many years ago, our Supreme Court said: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific Ry. Co. v. Botsford, 1891, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734. A warrant of arrest issued under Rule 4, Fed.R.Crim.P., is “authority of law” for a policeman to abridge the individual’s liberty. And, as has often been held, so is the existence of probable cause to believe the individual guilty of an offense which has occurred. Under either authority, however, the policeman’s custody of the individual lasts only long enough to bring the suspect before a magistrate. The warrant usually commands that to be done “forthwith.” If the arrest is made without a warrant, Rule 5 commands that it be done “without unnecessary delay.” The reason for these commands is that the object of the arrest is to assure that the defendant will be present to respond to a charge at the proper time. Arrest is not for the purpose of providing an opportunity to question the defendant. Five members of the Bill of Rights Committee of the American Bar Association, in “A Memorandum on the Detention of Arrested Persons” written in 1944, reported: “We have found no indication that there was ever any law in the United States or England authorizing a prisoner to be detained for the purpose of facilitating investigation. Exactly the contrary has been repeatedly declared by state judges interpreting prompt production statutes similar to the Acts of Congress already quoted [those involved in McNabb].” In Mallory, the Supreme Court said: “Presumably, whomever the police arrest they must arrest on ‘probable cause.’ It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on ‘probable cause.’ ” That there may be no arrest without probable cause is a fundamental principle of liberty. And so well settled is it that we never even hear it questioned today. The police never question the principle. But, as the Supreme Court has said in regard to a different subject “we would have to be that ‘blind’ Court * * * that does not see what ‘[a] 11 others can see and understand’ not to know that” the police do not always follow it. Rumely v. United States, 1953, 345 U.S. 41, 44, 73 S.Ct. 543, 545, 97 L.Ed. 770. As a Presidential Commission pointed out in 1947, the number of cases of police violation of such civil rights reaching the courts shows “that improper police conduct is still widespread, for it must be assumed that there are many instances of the abuse of police power which do not reach the courts. Most of the victims of such abuses are ignorant, friendless persons, unaware of their rights, and without the means of challenging those who have violated those rights.” The impact of crime is always frightening. But a police system operating-above the law is even more frightening, for it tends to destroy the very roots of the social order by bringing into disrepute the whole machinery of law enforcement. To defend against crime, society can increase the number of police; it can improve police efficiency; it may find that an earnest attempt to seek out and eliminate the conditions which breed crime is an even more effective defense. To defend against police lawlessness, we must make it unprofitable. Society cannot tolerate “abuses of power by ‘inefficient and delinquent officials’ — sometimes from excessive but misguided zeal, sometimes to win applause by producing a victim when popular clamor demands the solution of a crime. Respect for law, which is the fundamental prerequisite of law observance, hardly can be expected of people in general if the officers charged with enforcement of the law do not set the example of obedience to its precepts.” National Commission of Law Observance and Enforcement (Wickersham Commission), Report No. 11, Lawlessness in Law Enforcement 1 (1931). The rule that excludes confessions obtained by questioning an arrested person before arraignment does not, of course, prevent either the prosecutor or the police from putting questions to a suspect before they arrest him. Nor, if he is willing, are they forbidden to question him in jail after he has been committed, or in his home if he has been released on bail. But they may not, at any time, require him to answer. He never loses his constitutional right to remain silent. The Fifth Amendment forbids compelling him to speak against himself not only at his trial, but also in such formal pretrial proceedings as grand jury investigations, Counselman v. Hitchcock, 1892, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110, and indirectly, i. e., by excluding involuntary confessions, in such informal ones as police interrogations. Bram v. United States, 1897, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568. An interrogation at police headquarters is all too frequently ‘ a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements * * Mallory v. United States, 354 U.S. at page 454, 77 S.Ct. at page 1359. Before the arrested person is arraigned, he “is under the exclusive control of the police, subject to their mercy, and beyond the reach of counsel or of friends.” Carignan v. United States, 1951, 342 U.S. 36, 46, 72 S.Ct. 97, 102, 96 L.Ed. 48, concurring opinion of Mr. Justice Douglas. Arrest and the atmosphere of a police station automatically instill in the prisoner a fear which conduces to the extraction of damaging statements, particularly when he is ignorant of his rights and unfortified by counsel. At arraignment, the magistrate must advise him (1) that he has a right to a preliminary hearing at which the police must prove that there is probable cause to hold him; (2) that he has a right to counsel; (3) that he is free to refuse to speak; and (4) that any statement he makes may be used against him. Undoubtedly the police machine operates in lower gear after this advice has been given. The United States Attorney’s office complained in another case, “We would find the place crawling with attorneys telling him ‘you don’t have to talk to the police.’ ” Watson v. United States, 1956, 98 U.S.App.D.C. 221, 226, 234 F.2d 42, 47. The utility for police purposes of questioning an arrested person before arraigning him lies in the element of compulsion which results from his fear, in combination with his ignorance, even when no violence is used and no threats are either expressed or purposely implied. The argument for permitting the use of confessions obtained by questioning before arraignment therefore comes to this, that society’s interest in convicting the guilty justifies the use of a degree of compulsion against the guilty and the innocent alike. But however effective in catching criminals fear and ignorance may be, the Fifth Amendment and Rule 5 bar their use because they cannot be reconciled with a civilized community’s minimum standards of fairness. “Rights intended to protect all must be extended to all, lest they so fall into desuetude in the course of denying them to the worst of men as to afford no aid to the best of men in time of need.” Goldman v. United States, 1942, 316 U.S. 129, 142, 62 S.Ct. 993, 999, 86 L.Ed. 1322 (dissenting opinion of Mr. Justice Murphy). “It is believed that the following statements of fact are correct, at least for hundreds of cities and in large classes of eases: “(1) The use of physical heating-up, in variant degrees of brutality, not only is practised, but is deemed justifiable, on the ground of necessity. The necessity is said to exist chiefly in the cases of notorious gangsters and syndicated rascals, where direct testimony or adequate circumstantial evidence is not expected to be available; and the practice is said, to be limited to such cases. “(2) The use of mental strain, by continuous interrogation, without food and without rest, by relays of officers, is equally prevalent, and is equally deemed justifiable; nor is it limited to the foregoing classes of cases. “(3) The use of false pretences, deceiving the suspect into believing that silence will no longer avail, is habitually used, and is deemed justifiable. By ‘false pretences’ is meant such assertions as ‘Your pal has told us the whole story and blames you, so you might as well tell your story and refute Mm if you can’; or ‘We have just found the goods where you hid them, and we have a complete case; so you may as well come clean’; the foregoing assertions being false. “This frank justification of habitual use of falsities, where a person deemed guilty has been arrested, leads one to infer that a false denial of having used brutality, when inquiry is made at the trial, would also be deemed justifiable, for mutual protection by the participants. “(4) The use of the foregoing methods, when candidly justified, is placed on the ground that in many cases it would be impossible to obtain other evidence of any sort sufficient to take the case to a jury, and that therefore a confession is indispensable, if such persons are to be brought to justice at all. This doctrine approximates almost exactly the legal rule, obtaining in the Middle Ages in Continental law down to the time of the Code Napoleon, that no person could be condemned until he had confessed; which of course led to the lawful and habitual use of torture to complete the final formality. A police belief that a confession is indispensable, and that it is therefore obtainable by the above methods, naturally tends to laxity in searching thoroughly for other evidence.” [Emphasis in original.] It is suggested that the 8:45 A.M. confession is admissible under United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140. But I find it impossible to conclude that appellant “promptly and spontaneously admitted his guilt,” Upshaw v. United States, 335 U.S. at page 413, 69 S.Ct. at page 171, 93 L.Ed. 100, explaining United States v. Mitchell, supra, from a record showing that he denied guilt when he was arrested and continued to deny it under questioning by two relays of officers at police headquarters. Cf. Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337. He did not confess until he had been held three hours and questioned at least an hour and a half. It is also suggested that, even if receiving the 8:45 confession in evidence was error, the error was not prejudicial, because there was ample other evidence to justify the conviction. The jury knew that appellant had been seen near the scene of the crime and that his fingerprints had been found on the broken window. But also before the jury and looming large in the prosecutor’s summation were appellant’s confession of the crime and the physical evidence of the tools used in the crime, which evidence the police obtained as a result of the confession. Weighing the evidence is a jury function. I am unable to say that the confession and the derivative physical evidence did not tip the scales in favor of conviction. See Krulewitch v. United States, 1949, 336 U.S. 440, 445, 69 S.Ct. 716, 93 L.Ed. 790. For that reason alone, I would disagree with those of my colleagues who would hold that receiving the confession in evidence was not prejudicial error. But there is also another reason which makes receiving the confession reversible error. Without reaching the question whether a violation of Rule 5 is also a violation of a constitutional right, I think the same consideration that would require reversal if the point were constitutional requires reversal even if it is not. That consideration is that a right may be “too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 1942, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680. The right to speedy arraignment before a magistrate is such a fundamental and absolute right and, in formulating the rule of evidence excluding confessions obtained in violation of that right, the Supreme Court was “guided by considerations of justice not limited to the strict canons of evidentiary relevance.” McNabb v. United States, 318 U.S. at page 341, 63 S.Ct. at page 613, 87 L.Ed. 819. The Post-Commitment Confessions The confessions obtained after appellant had been arraigned before a magistrate and taken back to police headquarters were inadmissible for three reasons. 1. They merely supplemented or reduced to writing inadmissible pre-com-mitment confessions. It has never been held that “making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” United States v. Bayer, 1947, 331 U.S. 532, 541, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654. But a confession which is made a few hours after an inadmissible one and while the confessor is still in detention, albeit no longer police detention, and which is inextricably intertwined with the earlier confession, is the fruit of the earlier one and equally inadmissible. 2. These later confessions were obtained in the course of violating the magistrate’s commitment order. A confession made while in lawful detention after commitment may be admissible. See United States v. Carignan, 1951, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48. But appellant’s detention at police headquarters after a magistrate had ordered him committed to jail was not lawful detention. “The complicated process of criminal justice is * * * divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication.” McNabb v. United States, 318 U.S. at page 343, 63 S.Ct. at page 614. Pointing out that the-apprehension of suspects is a police function and their detention a judicial function, the Court held that the prisoner-must be removed from police to judicial control as soon after arrest as possible. Rule 5 embodies that objective. 11 Cyc.Fed.Procedure §§ 40.40, 40.50 (3d ed. 1952). It requires the magistrate before whom the prisoner is brought either to discharge him or to “hold him to answer in the district court,” admitting him to bail as the rules provide. In this district, if the magistrate decides that the prisoner should be held he is authorized to-commit him to the District of Columbia Jail. The magistrate may not lawfully return him to the custody of the police. He did not in this case. He properly committed appellant “to jail.” The marshal violated the magistrate’s order by taking appellant back to police headquarters for hours of further questioning. The United States Attorney argues, that the marshal could lawfully take him back as long as he did not surrender custody to the police. But this argument rests on the false assumption that the magistrate had committed the prisoner to the custody of the marshal. Since appellant’s detention violated the commitment order and had no other lawful basis, it was unlawful. 3. The record does not show that the magistrate informed appellant, as Rule 5 requires, of his constitutional right to remain silent. The purpose of a Rule 5 arraignment is two-fold: that “the arrested person * * * may be advised of his rights and * * * that the issue of probable cause may be promptly determined.” Mallory v. United States, 354 U.S. at page 454, 77 S.Ct. at page 1359, 1 L.Ed.2d 1479. By waiving preliminary hearing, appellant may have consented to being detained without a determination of probable cause. But there is no suggestion that he consented, or could validly have consented, to the magistrate’s failure to inform him of his rights. The right to refuse to answer questions is useless unless one knows he has it. A prisoner who has been told by a magistrate that he need not speak and that he is entitled to a lawyer and to a preliminary hearing and who, after adequate consultation with counsel, either has or waives a preliminary hearing, is in a very different position from a prisoner who has not been told of his rights ■and, after a perfunctory conversation with a lawyer who knows nothing of his case, waives preliminary hearing and is committed to jail. In the latter case, the prisoner is almost as much exposed to the illegal extraction of confessions after commitment as before. Appellant testified that when he was taken to the Municipal Court the judge ■offered to assign a lawyer, but that no one told him he had a right to remain silent under questioning. (R. 193.) The prosecution does not challenge this testimony. Nor does the only Municipal Court paper filed in the District Court show that appellant was advised of his rights. Even if he had been fully advised of his rights by a court-appointed lawyer at his Rule 5 arraignment, this would have been no adequate or legal substitute for the advisory statement which the magistrate was bound to give him. Moreover the circumstances of the consultation with counsel virtually precluded any possibility that it could aid appellant. He testified without contradiction that the judge asked him if he wanted a lawyer and, when he said he did, appointed a man sitting in the courtroom. The judge told the lawyer to go outside and talk to appellant. “ * * * they sent me out one door, and he went out the other door, and I was in the bull pen in back, and he came out and lit a cigarette, and by the time I walked over there, he was ready to come back in, and he said something to me, but I don’t remember what he said, and we came on back into, in front of the judge.” (R. 1180, 1182.) Thereupon, appellant waived preliminary-hearing and was committed to jail in default of bond. He did not know the lawyer’s name and never saw him again. (R. 1183.) The testimony of the officer who took appellant to court for commitment tends to corroborate appellant’s account of the commitment proceedings. The Government made no attempt through this witness to contradict any part of appellant’s account. Nor did the Government call any other witness to challenge appellant’s testimony, or even try to challenge it by cross-examination. The Government does not even challenge the statement of appellant’s present counsel that efforts to locate the commitment lawyer have been unavailing, because his name, as given on the Municipal Court complaint form, does not appear in any directory. A confession obtained by questioning a prisoner who has not had the benefit of the substance as well as the form of the proceeding which is designed to inform him of his rights, may not be used in evidence against him. If I have said more in the foregoing than is necessary for the disposition of this case, it is because I think the constantly recurring problems involved in the case warrant it. Despite the length of this opinion, moreover, I think it desirable to mention one additional error committed by the lower court in one of these cases. In No. 13212, the trial judge opened his charge to the jury with the following: “Ladies and gentlemen of the jury, this case has taken a considerable time to try. Actually the amount of evidence introduced is small and the case is simple. We have spent perhaps more time on it than the evidence warrants. Hut the reason for that is this, that under our system of administering justice we give everyone a full hearing before the case is decided. Sometimes this results in what seems to be an unnecessary consumption of time; but that is our method of administering justice. The books sometimes say that due process of law is the process that hears before it condemns. So at the risk of what seemed to be an unnecessary consumption of time, you have given the defendant a very full hearing and then proceed to the decision.’’ [Emphasis supplied.] This instruction could have been understood as implying that the trial was only a formality. FAHY, Circuit Judge, and WASHINGTON, Circuit Judge, would reverse the convictions on all counts and remand the cases for new trials on the authority of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100, and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. PRETTYMAN, Circuit Judge, with whom WILBUR K. MILLER and BASTIAN, Circuit Judges, agree, concurring in part and dissenting in part: These are convictions in three separate trials, before three different judges and three different juries, for four different robberies involving safe-cracking. I concur in the affirmance of the one judgment of conviction, being the third count in No. 13069, based upon the Johnson & Wimsatt offense. I agree with what Judge Danaher has written concerning that judgment. I dissent from the reversals. As the whole of the day’s events should be viewed in considering these problems, I shall discuss all four cases. The problem centers about the admission of certain confessions. The judgments are being reversed because of the court’s understanding of the Mallory case. My study has divided itself into three parts: (1) the opinion and decision of the Supreme Court in Mallory; (2) the facts in the Trilling cases, i. e., the cases at bar; and (3) the application of the rule of Mallory to the facts in Trilling. I divide my opinion accordingly. It will be long, because I disagree with my brethren both vigorously and thoroughly. The matter is important, because it involves several phases of police practices in the apprehension and subsequent trial of criminals. I The Mallory Case We should view the opinion and decision in the Mallory case as the Supreme Court viewed the case, not as somebody else viewed, or may view, the facts and the dispute. The victim of the rape had sought help in detaching a hose in a sink in the basement of the apartment house. Mallory was alone in the janitor’s apartment; he helped her. Very shortly thereafter a man, who was masked but whose general features were identified as resembling those of Mallory and his two grown nephews, committed the rape in the basement. The woman had heard no one descend the wooden stairs. Mallory disappeared from the apartment shortly after the crime was committed. The Court was of the view that from the early stages of the investigation the police had ample evidence for regarding Mallory as “the chief suspect”. It clearly indicated that probable cause for a charge existed from the time of the arrest. Mallory was arrested the next afternoon between two and two-thirty. He was questioned one way or another until about nine-thirty that night, when he confessed orally, and further until eleven-thirty or twelve-thirty, when he made a written confession. He was not warned or advised of his rights. The signed confession was introduced in evidence against him. The Court said: “The circumstances of this case preclude a holding that arraignment was ‘without unnecessary delay.’ ” And it held: “We cannot sanction this extended delay, resulting in confession”. The detection of the guilty person in a crime usually progresses from one stage to another as the facts are discovered. At first there may be no suspect at all. Then, as the facts are uncovered, a suspicion, but a mere suspicion, develops. No arrest is permitted by law at that point. The police cannot arrest without “probable cause”, i. e., reasonable ground for belief that the suspected person is the guilty one. Then, as more facts are revealed, mere suspicion ripens into probable cause. At that point a valid arrest can be made. When the arrest is made, the accused person must be arraigned without unnecessary delay. Sometimes all these various stages happen quickly; sometimes there are long delays between them. When a ease develops thus normally, there are three periods of police inquiry which must upon occasion be subjected to scrutiny. The first is before probable cause for an arrest has appeared. The police are then trying to ascertain the identity of the guilty person. The second period is after the arrest and before arraignment. The police, having reasonable grounds for belief that the arrested person is the guilty one, are endeavoring to make certain, or at least more likely, that their belief is correct. The third period is after arraignment. The police then may be tying up loose ends or may still be trying to secure a confession as a handy tool at trial. Mallory dealt specifically with the second, or middle, of these periods. Rule 5(a) of the Federal Rules of Criminal Procedure and the McNabb case also dealt with that problem. I shall therefore deal first with the problem of the period between arrest and arraignment. The rule is plain: A confession obtained from an accused during a period of unnecessary delay between arrest and arraignment is not admissible against him. The rationale is equally plain. The Supreme Court is concerned, as is this court, about a police practice of holding a person and subjecting him to questioning in order to secure a confession. The concern is realistic. Voluntary confessions are favored by the law; but from the viewpoint of the police confessions are a short and easy route to conviction. The route is alluring, tempting. But across it lies a very real and rugged principle of our concept of the-state-and-the-citizen. The bedrock of the principle is that no man shall be compelled to testify against himself. In Bram v. United States the Supreme Court discussed the subject at length and with copious citations, pointing out that the prohibition was a protest “against the inquisitorial and manifestly unjust methods of interrogating accused persons”. The subject was discussed again in Ziang Sung Wan v. United States. The Supreme Court in McNabb, Mallory, et ah, formalized a rule on the matter. Rule 5(a) incorporated the basic requirement. A person held by the police unnecessarily long after arrest, without warning or advice,, is under compulsion by the very fact of being held at the place and under those-circumstances. The Court blocked that route to confessions. But the Court did not lay down a mechanical rule. “The circumstances of this ease”, said the Court, precluded a different holding. The Court used expressions such as: “[H]e [the an'ested person] is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements” and “the delay must not be of a nature to give opportunity for the extraction of a confession”, “resulting in confession,” “tempting utilization of intensive interrogation”. The Court said “process” of inquiry, “extraction” of the confession, “intensive interrogation”. The Court did not preclude any question or specify any time. It sought to convey an idea — an idea of inquisitorial injustice, delay with a result or an objective. The character of the questioning is a key factor. Matters of fact are-involved, not matters of semantics or of comptometer calculation. As I read the cases, the Supreme Court holds that whether a given delay between arrest and arraignment is unnecessary depends upon a realistic appraisal of the circumstances. In each of the line of cases McNabb, Upshaw, Mallory, the Court described and then emphasized as critical the facts and circumstances. In McNabb the Court said “in the circumstances disclosed here”. In Upshaw it stressed the facts of the detention and the questioning. In the Fourteenth Amendment cases the Court has always ■emphasized the circumstances. I refuse to agree that the Supreme Court in Mallory established a bare time rule to govern the admission of confessions. It has never said, or intimated, that a confession obtained by one hour of intensive pressure is admissible but one obtained by two hours of casual inquiry is not admissible. And it has not said that a confession obtained at eight-fifty o’clock in the morning is admissible but one obtained at nine-ten the same morning is not. I can conceive of no rationale which would support any such rule; in this I suppose I am in disagreement with the Uniform Arrest Act. The word in the Rule is “unnecessary”. Unnecessary for what ? I think the Rule does not preclude a reasonable delay, reasonably essential to proper — emphasize “proper” — police procedure. The Rule does not prohibit any and all delay; it prohibits unnecessary delay. It does not forbid all delay except the minimum •of minutes necessary physically for the routine requirements of transportation, preparation of papers, arousing a magistrate during off-hours, identification, etc. The term “unnecessary delay” has a content of substance, embodying allowance for proper police procedure. Reasonable and proper police action is not precluded. A delay is to be judged unnecessary-or-not upon a realistic appraisal by the court of the circumstances of the delay. The purpose and intent of the Rule was to prevent opportunity for oppressive treatment. It must be interpreted according to its purpose and inte