This is an appeal
Both confessions and identifications made while an accused is in police custody without benefit of counsel are constitutionally suspect.
Appellant was arrested at 4:15 p. m. on September 7, 1966, pursuant to a warrant issued in connection with a robbery at Mike's Carry Out, and was taken to a precinct station. Upon arrival at about 4:30 p. m., the arresting officer immediately telephoned Detective Sergeant Robert T. Keahon, of the Robbery Squad, who instructed him to book appellant and bring him directly to the Robbery Squad office at police headquarters. At a pretrial hearing, held to pass upon the admissibility of the confession, Keahon testified that all arrestees brought to a precinct station are subsequently conveyed to headquarters for processing, that is, fingerprinting, photographing and completion of the "line-up sheet." In addition, Keahon stated that he was personally in possession of appellant's arrest warrant, "was familiar with the case, and * * * was going to handle the case. * * *"
The arresting officer called in a police wagon from the streets and, when it arrived, drove appellant through closing hour traffic to police headquarters, and presented him to Keahon at 5:20 p. m. Keahon ascertained that appellant had been advised of his rights by the arresting officer, and read to him from a form which gave the Miranda
Keahon then "started talking to him about the Mike's Carry Out," the offense for which he had been arrested, but before he could utter more than a few words, appellant exclaimed, "I don't care, I want to clear Ted. Teddy didn't do it. * * * Teddy didn't shoot that woman in the High's store or rob her. I did." "Teddy," it developed, was one Theodore Moore, who had been arrested for a robbery at a High's Market. With that, appellant proceeded to confess, without prompting, to a series of other
The Meridian Market confession was made at 5:45 p. m. When appellant finished confessing to various other offenses, Keahon brought in witnesses to identify him.
Appellant contends that his confession was inadmissible under Mallory v. United States
Appellant attacks his confession on Miranda
Now we must consider directly the effect on Mallory of a Miranda that has come of age.
Although not explicitly premised on constitutional grounds, Mallory has been ultimately concerned with effectuation of Fifth and Sixth Amendment protections against the dangers of involuntary self-incrimination in stationhouses and with the other evils inherent in police interrogation of an accused in secret.
Mallory itself has stood guard against not only the "third degree," but also "the pressures in a Police Station upon prisoners under secret interrogation without counsel, relative or friend."
The Mallory solution for these iniquities was enforcement by an exclusionary rule of the requirement that the accused be brought "before a judicial officer as quickly as possible so that he may be advised of his rights * * *."
In Miranda, the Supreme Court eschewed this uncertain detour through Rule 5(a) and attacked the problem of custodial interrogation directly. It held that the accused is entitled to the assistance of counsel before he is questioned and, in effect, that any confession he makes while in exclusive police custody prior to arraignment is presumptively inadmissible under the Fifth and Sixth Amendments. Such confessions can stand if, but only if, the accused affirmatively and understandingly waives his rights, and the Government bears "a heavy burden" in attempting to show such a waiver.
Thus, absent convincing evidence of waiver, no confession may be admitted, regardless of the dispatch with which the accused is presented before a magistrate. Conversely, should the Government carry its burden, we think it follows that the confession is not inadmissible solely on the ground that the accused was not taken before a magistrate at the earliest possible moment. A valid Miranda waiver is necessarily, for the duration of the waiver,
By no means is this to say that unjustified delay in compliance with Rule 5(a) has no bearing on the admissibility of a confession forthcoming during a period of such delay. As Miranda made clear,
Thus, the greater the tardiness in presentment prior to a confession, the heavier the Government's already "heavy burden" of showing effective waiver. Certainly some conceivable delays are so long that no subsequent confession could be deemed the product of voluntary waiver. And nothing in Miranda affects the admissibility vel non of evidence of any sort obtained during detention following an illegal arrest.
Thus the vital question here is whether appellant voluntarily and understandingly waived his Miranda rights. If he did not, his confession was inadmissible under Miranda. If he did, the confession was admissible even if the purpose inspiring his transfer to police headquarters was interrogation for the production of evidence.
The strong implication is that appellant thought his confession could not be used against him so long as nothing was committed to writing. If, as his avowed motive for confessing suggests, he was brooding over a guilty conscience while the warnings were being given, he might well have failed to absorb their message. Or he may simply have been laboring under the common misapprehension that the police could not use in court anything he said unless they were able to introduce a written statement. Whatever the reason, the evidence raises a serious question as to whether he intelligently waived his right to remain silent.
Appellant was given the Miranda warnings in their entirety. He signed what purported to be an express waiver. If there were no other evidence in the record, the Government would have discharged its burden, and no further inquiry would be necessary. But while "[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver,"
The Government argues, however, that because the question was not raised below, appellant should not be allowed to present it here. We disagree. Appellant's counsel
Nonetheless, because the Government had no clear warning that it would need to produce more evidence, we are reluctant to reverse for a new trial. Appellant's ban on note-taking inveighs against intelligent waiver, but this inference might be overcome, for example, if Sergeant Keahon admonished him that even an oral confession would be used against him, and appellant replied that he knew that but still did not want anything written down. Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand. Accordingly, we shall remand the record in this case to the District Court for an evidentiary hearing and findings of fact on the validity of appellant's purported waiver.
Appellant also contends that the trial judge erred in permitting two eyewitnesses to the Meridian Market robbery to identify him at the trial as a participant. His argument is that these incourt identifications were products of prior extrajudicial identifications made in circumstances so unnecessarily suggestive and promotive of faulty recognition as to impinge on due process of law.
One, but only one, of the pretrial episodes complained of falls within the area of constitutional condemnation. More than a month after appellant's arrest, Louis I. Reznick, the owner of the market, and William Simpson, an employee, both of whom were present when the holdup occurred, viewed appellant while confined in a cellblock. Appellant was the only person they were shown, and both witnesses knew at the time that appellant had confessed. As the Government now itself characterizes the incident, this single-suspect cellblock confrontation was "indeed suggestive"; so much so, we hasten to add, as to render it offensive to due process.
The Government, however, did not rely upon the out-of-court identifications
Reznick and Simpson each testified at trial that they remembered appellant from impressions received at the time of the robbery. The offense was perpetrated by two men during daylight hours over a period of several minutes during which both Reznick and Simpson had excellent opportunities to scrutinize the two robbers. Afterwards, they gave the police detailed joint descriptions of the culprits, one of which depicted appellant reasonably well. In addition, Reznick selected appellant's photograph out of "a box of pictures" given him by the police shortly after appellant's arrest. This evidence, we hold, was sufficient to support the finding that Reznick's identification was not tainted by the cellblock confrontation.
As to Simpson, who made no prior photographic identification, the proof on independent source for his in-court identification included a very significant event. On the night of appellant's arrest, Simpson was brought to police headquarters to identify him. According to the uncontradicted testimony of Detective Keahon,
Ordinarily, an identification arising out of so suggestive a confrontation would itself be constitutionally dubious.
We remand the case to the District Court for proceedings consistent with this opinion.
BURGER, Circuit Judge (concurring in part and dissenting in part):
I agree that the identification testimony was properly admitted under the principles recently set forth by this court in Clemons v. United States, 133 U.S. App.D.C. 27, 408 F.2d 1230 (Dec. 6, 1968) en banc, but I do not agree with those parts of the majority opinion relating to the inadmissibility of statements which Appellant made to the police.
The sole issue separating me from the majority is whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) required Appellant's statements to be excluded from the evidence. In answering this question affirmatively the majority leans heavily on Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the standing of which has been drawn into serious doubt by recent Congressional enactments.
Of more concern is the majority's expansion of Miranda into a per se exclusionary rule, thereby transcending the Fifth Amendment requirement that only those statements elicited through compulsion be excluded from evidence. Indeed, Miranda itself cannot be read as going beyond the language of the Fifth Amendment.
In Miranda the Supreme Court held that certain warnings must be given to a suspect before "custodial interrogation" could be conducted. The underlying assumption was that these warnings were necessary to prevent the subversion of trial rights at unsupervised pretrial confrontations between an accused and the State. Whereas pre-Miranda cases had alternately invoked the Fifth and Sixth Amendments
Frazier was presented to Officer Keahon at headquarters at 5:20 P. M. Their meeting was prefaced by Keahon's reading the Miranda warnings to him from PD-47 (a form card which all police officers carry and which had previously been read to Frazier by Officer Sandy upon his arrest). He repeated these warnings to Frazier when he read PD-54, a form which advised him of his Fifth and Sixth Amendment rights
Officer Keahon testified that he then read the arrest warrant relating to the robbery of Mike's Carry Out Shop and
The admission of the Meridian Market robbery was unsolicited and appears to have been volunteered. Officer Keahon testified that he did not ask Frazier whether he participated in the Meridian Market robbery and that the only questions asked in relation to that robbery during the initial confession were for the purpose of corroborating the identification of the market. Thus it seems that the confession was totally spontaneous and voluntary.
Following the statements Frazier was retained in the robbery squad office for nearly two hours, where he was quizzed in detail about the four robberies, reiterated his confessions, was displayed to several witnesses, and reenacted several of the robberies. Thereafter he was placed in a cell for the night because a Commissioner was not available and was presented the following morning.
The record demonstrates entirely reasonable police activity satisfying the deterrent purposes underlying the Miranda rule. There is not a scintilla of evidence suggesting that what had been forthcoming from Appellant's lips was the result of unreasonable or improper police conduct. The fact that Appellant may not have desired the statement to be transcribed does not compel the conclusion that he was being subjected to the kind of police activity found unconscionable in Miranda. The most that can be said from Appellant's statements is that he may have unintentionally incriminated himself. The Fifth Amendment, however, serves neither to discourage nor to prohibit self-incrimination, it militates only against compulsory self-incrimination. The record does not even remotely suggest that Appellant was being compelled to incriminate himself, no less compelled to utter any words at all. There is not the slightest indication that Appellant was unaware of his rights or labored under a misbelief that his failure to speak could be used against him as evidence of guilt. There is no intimation that the environment would have neither permitted nor honored a non-waiver.
In fact, no issue is even purportedly raised as to Appellant's willingness to make the statements that were eventually used against him. Indeed, evidence of his volition may be inferred from his voluntary participation later that evening in a series of identification procedures. In view of the obvious spontaneity surrounding its making, the statement could plainly have been used as a threshold oral confession.
In this regard it also bears noting that the "plus factors" so frequently contributing to a rejection of a confession are not present in this case. Frazier was repeatedly told of his right to counsel and his right to remain silent; he confessed immediately and without prior denials; he never repudiated his confession and he did not make any allegations
By equating Frazier's insistence that the police not write notes with a desire not to incriminate himself, the majority engages in sheer speculation of Appellant's thought processes which places a premium on the capacity of judges to probe Appellant's mind. This approach bears an unfortunate resemblance to the sophistry engaged in by the courts which labored under the albatross of Betts v. Brady.
Miranda did not set down a per se proscription against pretrial questioning; it was addressed primarily to abusive and unwarranted tactics designed to subvert constitutional rights. Even if Frazier unwittingly incriminated himself, the police should not be held accountable in the absence of some evidence of deceit or misconduct on their part. Here, of course, there is no such evidence. Indeed, the majority clothes Appellant's remarks with a significance bearing no relationship to the record or to ordinary human experience. Throughout the majority opinion is circumspect avoidance of any discussion relating to coercion or improper police conduct. To the extent Appellant's utterances may be construed as indicating a misunderstanding of the consequences of his making incriminatory statements the majority has failed to supply a nexus between this and the presence of improper police conduct amounting to coercion.
I have difficulty perceiving the basis for the majority's argument that it was unreasonable for the police to proceed with questions after Frazier made an apparently valid waiver. Although this waiver was not irrevocable,
Having complied with the postulates of Miranda, it was the absolute duty of the police as law enforcement agents to investigate promptly the circumstances of the crime and the suspect's possible participation. I am somewhat at a loss to know what more the Government could or should have done to comply with the directives of Miranda. Even if Frazier did not understand the privilege against self-incrimination, the majority's approach is unrealistic and goes beyond the mandates of any decided cases. It seemingly expects the police to detect indications of misunderstanding and lack of knowledge which are so subtle that
The seeming anxiety of judges to protect every accused person from every consequence of his voluntary utterances is giving rise to myriad rules, sub-rules, variations and exceptions which even the most alert and sophisticated lawyers and judges are taxed to follow. Each time judges add nuances to these "rules" we make it less likely that any police officer will be able to follow the guidelines we lay down. We are approaching the predicament of the centipede on the flypaper — each time one leg is placed to give support for relief of a leg already "stuck", another becomes captive and soon all are securely immobilized. Like the hapless centipede on the flypaper, our efforts to extricate ourselves from this self-imposed dilemma will, if we keep it up, soon have all of us immobilized. We are well on our way to forbidding any utterance of an accused to be used against him unless it is made in open court. Guilt or innocence becomes irrelevant in the criminal trial as we flounder in a morass of artificial rules poorly conceived and often impossible of application.
The record raises the possibility that the only statements put into evidence were those made prior in time to Appellant's alleged equivocations.
"Sec. 301(a) Any person arrested in the District of Columbia may be questioned with respect to any matter for a period not to exceed three hours immediately following his arrest. Such person shall be advised of and accorded his rights under applicable law respecting any such interrogation. * * *
"(b) Any statement, admission, or confession made by an arrested person within three hours immediately following his arrest shall not be excluded from evidence in the courts of the District of Columbia solely because of delay in presentment."
If probable cause is found, Rule 5(a) still serves to promote early consideration of an accused's admission to bail. This function of the rule has taken on added importance with the enactment of the Bail Reform Act, 80 Stat. 214 (1966), 18 U.S.C. § 3146 et seq. But for the same reason that Mallory has little relevance to the goal of assuring expeditious determination of the existence of probable cause, it is not a significant antidote to the problem of delays in bail hearings.
Rule 5(a) also serves to provide early warning by a magistrate of the right to counsel, which may be important in protecting an accused's interest at a line-up. See Williams v. United States, ___ U.S.App.D.C. ___, 419 F.2d 740 (Dec. 20, 1968). Thus, identification evidence obtained in the absence of counsel may be excluded independently of the rules of United States v. Wade, Gilbert v. California, and Stovall v. Denno, all supra note 3, if it is obtained during an "unnecessary delay" in presentment. If the right to counsel has been validly waived under Miranda, however, this issue will not arise. Moreover, even in the absence of a waiver, if counsel was in fact present at the challenged confrontation, and if the resulting identification is otherwise admissible, Mallory does not require its exclusion because of a violation of Rule 5(a). Williams v. United States, supra, 136 U.S.App.D.C. at ___, n. 9, 419 F.2d at 746, n. 9.
Fuller v. United States, 132 U.S.App. D.C. 264, 273 n. 11, 407 F.2d 1199, 1208 n. 11 (1967) (Leventhal, J.), reheard en banc on other issues Fuller v. United States, No. 19,532 (D.C.Cir., decided September 26, 1968).
As Judge Bazelon's dissent in Hall v. United States, (D.C.Cir., decided February 24, 1969) indicates, he too would subscribe to "reasonableness" of police conduct as the touchstone of exclusionary rules. Judge Bazelon said there, echoing a multitude of judicial holdings
Although the Hall case involved the Fourth Amendment everything said in the dissent relates equally to the exclusion of reliable evidence under the Fifth Amendment; see Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886), where the Court noted that "the fourth and fifth amendments run almost into each other." Compare Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 COLUM.L. REV. 130 (1967).
Just as reasonableness has been the guidepost for protecting privacy, it also serves as the basis for determining the existence of compulsion. In assessing the legality of an arrest the question is framed in terms of whether the police officer had probable cause to believe a crime had been committed; similarly, in determining the admissibility of a confession, the question is whether there was sufficient reason for the police to believe that the suspect had consented to being questioned. In both instances the judicially declared objective of the rules is to prevent the police from reaping the benefit of official misconduct. Here Appellant is unable even to allege any police misconduct, hence the underlying predicate of the exclusionary rule is totally absent. In such circumstances there can be no justification for suppressing the evidence.