330 F.2d 535 (5th Cir. 1964), 20482, Rogers v. United States

Docket Nº:20482.
Citation:330 F.2d 535
Party Name:Clarence D. ROGERS, Appellant, v. UNITED STATES of America, Appellee.
Case Date:April 08, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 535

330 F.2d 535 (5th Cir. 1964)

Clarence D. ROGERS, Appellant,


UNITED STATES of America, Appellee.

No. 20482.

United States Court of Appeals, Fifth Circuit.

April 8, 1964

Rehearing Denied May 22, 1964.

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Charles R. Wheeler, Fort Worth, Tex., for appellant.

William L. Hughes, Jr., Charles Cabaniss, Asst. U.S. Attys., Fort Worth, Tex., Barefoot Sanders, U.S. Atty., for appellee.

Before BROWN, WISDOM and BELL, Circuit Judges.

WISDOM, Circuit Judge.

The appellant, Clarence D. Rogers, was convicted under 18 U.S.C.A. § 495 on two counts of forging, publishing, and uttering a United States Government check. On appeal he challenges the denial of a motion to suppress from evidence a signed confession and a handwriting sample. He contends that the police obtained this evidence while they were detaining him illegally. We affirm.


There is no substantial dispute over the facts.

The United States Secret Service sent agent Robert A. Stewart to Fort Worth, Texas, to investigate the forged endorsement of a United States Government check for income tax refund. The morning of August 11, 1961, accompanied by a postal inspector and two Fort Worth detectives, Stewart went to the liquor store of Mr. Fred Haberzettle, who had cashed the check. One of the detectives had had previous dealings with Haberzettle

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and knew him to be a man of honesty and reliability. Haberzettle told the officers that a man named Nelm Swallow brought the check into his store to be cashed, and that the payee's name was signed across the back of the check. At the time, Swallow mentioned to Haberzettle that Lonnie Williams owned a part of the check. Later when the check was returned to Haberzettle from his bank as a forgery, he got in touch with Swallow. In an attempt to frighten him and recover the money, Haberzettle led Swallow to believe that his partner in this crime had already been picked up by the police and was in jail. Swallow fell for it. He responded, 'Who, Chuck Rogers? (or) You mean Chuck Rogers is in jail?', thus changing his story about Williams and implicating the defendant.

After interviewing Haberzettle, the four officers talked with Williams. Williams told them that Chuck Rogers was C. D. Rogers, the defendant, and that he was working for the Lone Star Printing Company. One of the detectives knew that C. D. Rogers was an ex-convict who had served at least four prison sentences and who had been convicted of forgery. Williams said that Swallow and Rogers were frequently seen together and that Swallow's place of business, a 'beer joint' across the street, was permanently closed and that the landlord could not find Swallow to collect the rent.

The officers then went in search of Swallow. He and his wife were not at home. At this time, between Noon and 12:30 P.M., the officers went to the Lone Star Printing Company, and asked Rogers to accompany them to City Hall.

Rogers was taken directly to the forgery detail. The officers immediately informed him that he was not required to give any information and that anything he might say could be used against him. The detectives questioned him for a period not longer than fifteen minutes during which he admitted having had the check in his possession but insisted that he had won it in a crap game. The Fort Worth police booked him on 'suspicion of forgery'.

Swallow was apprehended and brought to City Hall between 1:30 and 1:45 P.M. While he was being questioned, the officers, in accordance with Rule 5(a) of the Federal Rules of Criminal Procedure, attempted to locate the United States Commissioner for a hearing. Since the Commissioner did not have regular office hours, it was necessary to reach him through the Marshal's office, a procedure that usually took about two hours. After questioning Swallow, Agent Stewart returned to Rogers who made a signed confession and gave a handwriting specimen. There is no indication that any coercive means, physical or psychological, were employed during this time. At 3:30 that same afternoon, Rogers and Swallow, accompanied by the officers, walked to the Federal Courthouse where they were brought before the Commissioner for their hearing.

Rogers argues that his confession and his handwriting sample should have been suppressed from evidence for two reasons. First, he contends that the period of time between the arrest and the hearing before the Commissioner was an 'unnecessary delay' within the meaning of Rule 5(a) and any evidence obtained during this unnecessary portion of the detention should have been excluded by operation of the McNabb-Upshaw-Mallory rule. 1 McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819;

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Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; and Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. Second he contends that the arrest was illegal, because it was made without probable cause, and that this illegality made the confession and the handwriting sample inadmissible.


As Mr. Justice Black stated in Upshaw: '(A) confession is inadmissible if made during an illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological * * *.'' 335 U.S. at 413, 69 S.Ct. at 172, 93 L.Ed. 100. A violation of Rule 5(a) of the Federal Rules of Criminal Procedure 2 therefore renders any evidence obtained during the illegal portion of the detention per se inadmissible, without regard to proof of coercion. United States v. Levition, 2 Cir. 1951, 193 F.2d 848, cert. den'd 1952, 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350; 2 Morgan, Basic Problems of Evidence, 237 (3rd ed. 1961).

In applying the per se test it is necessary to attempt to determine the outer limits of the necessary delay during which interrogation of the prisoner will be permissible. United States v. Walker, 2 Cir. 1949, 176 F.2d 564, cert. den'd 1949, 338 U.S. 891, 70 S.Ct. 239, 94 L.Ed. 547. In this determination, we need not struggle with difficult constitutional questions turning on the existence and degree of physical coercion and the extent of the elusive concept of psychological coercion. Instead, we must consider such facts as the availability of a committing magistrate, the length of the delay before the prisoner is taken before the magistrate, and the police purpose or justification, if any, for the delay.

When an arraigning officer is immediately available and detention is prolonged for the purpose of eliciting a confession through police interrogation, Rule 5(a) is violated from the outset. Mallory v. United States, 354 U.S. 449, 455, 77 S.Ct. 1356, 1 L.Ed.2d 1479. When a commissioner is honestly unavailable over a weekend or holiday and the detention stretches for two or three days, there may be no violation of Rule 5(a) even though a confession may have been obtained (unconstitutionally) by brutal physical coercion. United States v. Walker, supra. And while police officers may detain a prisoner incident to a search of the surrounding premises (Williams v. United States, 9 Cir. 1960, 273 F.2d 781, cert. den'd 1960, 362 U.S. 951...

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