Before BAZELON, Chief Judge, and BASTIAN and McGOWAN, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1964.CDC.65
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BAZELON
A jury found appellant not guilty by reason of insanity on three counts of rape and one count of assault to commit rape. It found him guilty on four counts of robbery, five counts of assault with a dangerous weapon, and nine counts of housebreaking. The court committed appellant to St. Elizabeths Hospital on the verdicts of not guilty by reason of insanity and imposed sentences on the guilty verdicts to begin from date of imposition *fn1 We are urged to reverse the guilty verdicts chiefly on the ground that the trial court erred in admitting several damaging oral and written statements which the police elicited from appellant in violation of Rule 5(a), FED.R.CRIM.P., and of his right to counsel.
These statements were obtained in the following circumstances. After Mrs. M., a rape victim, had identified appellant's photograph, Detective Wallace arrested appellant, without a warrant, at his home at approximately 3:50 p.m. on a Sunday, and took him immediately to the Ninth Precinct Police Station where he was charged on the arrest book with rape and housebreaking. Appellant denied the charges. At 4:20 or 4:25, Mrs. M. positively identified him in a line-up as her assailant, and Detective Wallace, the arresting officer, was "perfectly satisfied" with her identification. But appellant continued to deny the charges. Sex Squad Detectives Wolfgang and Kline arrived at the precinct station at about 4:30 and were informed of Mrs. M.'s positive identification. Within five or ten minutes Detective Wolfgang began interrogating Ricks, and Detective Kline began efforts to reach an Assistant United States Attorney by telephone for advice as to a "night arraignment." Kline reached an Assistant at 5:10 p.m., and upon being told that "it would be perfectly all right to hold the man over until Monday morning," Kline made no effort to locate a committing magistrate.
At 5:30 Detective Wolfgang brought Mrs. M. into Ricks' presence, where she related her version of the alleged crime. During this confrontation, which lasted until 6:00 p.m., Ricks did not depart from his claim of innocence. But after Mrs. M. stepped out of the room, Ricks admitted raping her, and he apologized to her when she returned.
At 6:05 p.m. Ricks was placed in a second line-up before a Miss S., who had been raped over seven months earlier, and before a son-in-law of Mrs. L., a victim of a more recent assault with a razor blade. Neither identified Ricks.
As Ricks left this line-up, Wallace told him that his fingerprints were found on the razor blade, and said, "Calvin, you might as well tell the truth." Ricks said nothing, but a few moments later he passed Mrs. L.'s son-in-law in the corridor and said, "You're the man that chased me out of the house when the woman on the second floor screamed." At 7:00 p.m. Ricks was placed in a third line-up before a Miss A., who was unable to identify him as her attacker seven months previously. When the police ended their questioning of Ricks at 7:00 p.m. on Sunday, he had denied attacking Misses A., S. and C., and admitted attacking Mrs. M. and Mrs. L.
Ricks, who had no counsel, was taken before a Commissioner the next day (Monday) at 10:20 a.m. The Commissioner stated the charges and advised Ricks of his right not to make any statement and his right to retain counsel and to have a preliminary hearing. The Commissioner stated that Ricks could choose either (1) to have a hearing, (2) to waive the hearing, or (3) to postpone the hearing "for the purpose of contacting counsel or contacting any member of his family relative to securing counsel for him." *fn2 When Ricks chose the latter, the hearing was continued for three days and he was held without bond. Immediately after Ricks' appearance before the Commissioner, Detective Wolfgang obtained Ricks' permission for an interview in the Commissioner's cellblock. Ricks agreed to Wolfgang's suggestion that Mrs. M. join them, but when Mrs. M. entered, Ricks asked her to leave. Then in the presence of only Detective Wolfgang, Ricks admitted several crimes, including those charged here, orally and by writing on cards and signing his name opposite various items on a list of open crimes. He stated that he wanted to apologize to his victims. Wolfgang left about 11:55 a.m.
At 2:23 that afternoon Ricks was taken before a judge of the United States District Court for a hearing on the United States Attorney's request to release Ricks to the police "to assist in the solution of various . . . crimes." Ricks agreed to go with the police, although the judge told him that he did not have to and that anything which transpired could be used against him. The judge did not tell Ricks that he had a right to counsel, nor did he offer to appoint counsel. Ricks was released to the police for four hours during which he repeated his earlier admissions.
At trial all of Ricks' statements were admitted into evidence over his objection.
"The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on 'probable cause.' The 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."4
We think Mallory requires exclusion of the statements which the police elicited from Ricks on the day of his arrest. Mrs. M. positively identified Ricks to the satisfaction of the arresting officer about thirty minutes after the arrest. At least at that point, if not earlier5, the police were required to take Ricks before a committing magistrate unless further delay was occasioned by some proper purpose, such as the checking of a volunteered alibi or explanation "susceptible of quick verification."6 It is said that such verification is required for the accused's protection against wrongful charges7 But Ricks did not volunteer an alibi or explanation. Instead he maintained his innocence throughout the approximately two hours of detention after his arrest. The police activity during that period hardly reflects "the ordinary administrative steps required to bring a suspect before the nearest available magistrate."8 And the questioning which preceded Ricks' statements precludes any claim that they constituted "spontaneous threshold confessions."9
Nor can the delay of a preliminary hearing be justified on the ground that police activity for that period was required to investigate other unsolved crimes for which there was no probable cause to arrest the accused10 The ban against delay was not lifted each time the accused was confronted with another charge. Apparently the police were aware of this, for shortly after Mrs. M.'s positive line-up identification of Ricks, they tried to reach an Assistant United States Attorney about a "night arraignment." It is clear, however, that neither the Assistant's advice nor the posited inaccessibility of a committing magistrate licensed the police to continue "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."11
Appellant maintains that his statements on Monday after his appearance before the Commissioner must also be excluded because they were the "fruit" of his earlier illegally obtained admissions. See Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962). We do not reach that question, however, because these statements must be excluded on another ground.
"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. 332, 343, 63 S. Ct. 608, 614, 87 L. Ed. 819 (1943).This division underlies the scheme of the Federal Rules of Criminal Procedure. Detection and apprehension are police functions. But "without unnecessary delay" after arrest the police must relinquish custody and control of the accused to the committing magistrate, a judicial officer. His function is to advise the accused of his rights under Rule 5 and to conduct a hearing as soon as possible to determine whether there is sufficient probable cause to warrant further detention of the accused. Pending that determination, and in the absence of bail, the accused is transferred to jail where he is in the custody of the warden12 subject to judicial, and not police, control13 The purpose of the transfer is "to avoid all the evil implications of secret interrogation" by the police. See McNabb v. United States (supra) 318 U.S. at 344, 63 S. Ct. at 614. Those implications would not be avoided if the police were free to continue interrogation after the transfer.
Here Ricks was committed to jail pending the determination of probable cause, and the hearing thereon was continued solely for the purpose of granting him an opportunity to obtain counsel14 But the police nipped this opportunity in the bud by virtually following upon Ricks' heels, from the Commissioner's hearing room into the cellblock, to continue their interrogation15 And later the same day, an Assistant United States Attorney moved in the District Court for Ricks' release to the police for four hours16 Despite the fact that Ricks had not yet obtained counsel17, the District Court released him to the custody of the police.
If Ricks had had counsel, the police would not have interrogated him in private and at length in the Commissioner's cellblock18 Nor could they have taken him uncounselled into the District Court for the hearing which culminated in his delivery to the police and further interrogation19 The mere fact that Ricks had not yet obtained counsel did not allow police to "continue to hound [him] . . . to give evidence against [himself] . . . until there is no escape at the trial . . .."20 Ricks' right to counsel did not depend on a race with the police. The police activities here violated the general scheme of the Federal Rules of Criminal Procedure, and the specific order of the Commissioner implementing Ricks' right to counsel.
The Supreme Court has recently ruled that a confession obtained by a police agent from an uncounselled defendant on bail after indictment could not be used against him at trial. Massiah v. United States, 84 S. Ct. 1199, 1204 (1964). The Court recognized as a "constitutional rule" the New York doctrine that "Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime." People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70, 175 N.E.2d 445, 448 (1961). Mr. Justice White, in dissent, recognized that the Court's holding "would seem equally pertinent to statements obtained at any time after the right of counsel attaches, whether there has been an indictment or not . . .." And the New York Court of Appeals in People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E. 103 (1962), and People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651 (1962), has barred confessions obtained in the absence of counsel both after probable cause had been found and during continuance in the probable cause hearing21
We need not decide whether the logic of Massiah requires all Federal courts to exclude such pre-indictment confessions since we may, and do, reach our conclusion here in the exercise of our local supervisory power22
Reversed and remanded for a new trial.
BASTIAN, Circuit Judge (dissenting):, Appellant was indicted under a twenty-four count indictment charging as follows: Counts 1 through 5 (crimes against M.S.):
1. Housebreaking with intent to steal.
2. Housebreaking with intent to commit an assault.
3. Assault with a dangerous weapon.
Counts 6 through 9, and Count 11 (crimes against K.A.)1
6. Housebreaking with intent to steal.
7. Housebreaking with intent to commit an assault.
9. Assault with a dangerous weapon.
Counts 13 and 14 (crimes against L.L., B.L. and S.L.):
13. Housebreaking with intent to steal.
14. Assault with a dangerous weapon.
Counts 15 through 19 (crimes against L.M.):
15. Housebreaking with intent to steal.
16. Housebreaking with intent to commit an assault.
17. Assault with a dangerous weapon.
Counts 20 through 24 (crimes ...