419 F.2d 1161 (D.C. Cir. 1969), 21426, Frazier v. United States

Docket Nº:21426.
Citation:419 F.2d 1161
Party Name:Eugene R. FRAZIER, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 14, 1969
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1161

419 F.2d 1161 (D.C. Cir. 1969)

Eugene R. FRAZIER, Appellant,


UNITED STATES of America, Appellee.

No. 21426.

United States Court of Appeals, District of Columbia Circuit.

March 14, 1969

Argued May 21, 1968.

Page 1162

Mr. Ira S. Siegler, Washington, D.C. (appointed by this court) for appellant.

Mr. Joel M. Finkelstein, Asst. U.S. Atty., with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and BURGER and ROBINSON, Circuit judges.

Page 1163


This is an appeal 1 from a conviction for the armed robbery 2 of the Meridian Market on August 24, 1966. The Government's proof against appellant consisted of in-court identifications by the proprietor and an employee of the market, and an oral confession by appellant while detained by the police after his arrest. Appellant offered no evidence in his own behalf. He now argues, as he did at trial, that the presiding judge should have excluded both the confession and the identifications, and thus left the Government with a case no better than his defense.

Both confessions and identifications made while an accused is in police custody without benefit of counsel are constitutionally suspect. 3 Appellant's contentions on this appeal thus not atypically invoke doctrinal considerations that would have a vitiating effect on each prong of the Government's presentation unless exempted by special conditions. Accordingly, we must examine closely the circumstances surrounding appellant's confession and identifications in order to determine whether they pass the strict tests for admissibility which have been judicially prescribed.


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 pre-trial 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 4 warnings in some detail. Appellant said he understood the contents of the form, did not want a lawyer, and would obtain one the next morning if necessary. He then signed a statement to the effect that he knew his rights and did not desire the assistance of counsel.

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

Page 1164

recent crimes, the fourth of which was the Meridian Market holdup for which he was convicted in this case. Keahon testified that he asked appellant no questions whatever about that affair except to identify the market appellant was admitting he had robbed.

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. 5 Formal processing was completed at about 7:30 p.m., and appellant was taken before the United States Commissioner on the following morning.


Appellant contends that his confession was inadmissible under Mallory v. United States 6 because it was obtained during a period of unnecessary delay in his presentment before a judicial officer. The Government denies a Mallory violation and argues that, even if there were one, the confession is admissible under Title III of the so-called District of Columbia Crime Bill. 7 We think the record raises a substantial question as to whether appellant's transfer from the precinct station to police headquarters was an unnecessary delay in terms of contemporary judicial construction of Rule 5(a) of the Federal Rules of Criminal Procedure. 8 We do not, however, reach that question, or the sensitive issues concerning the applicability 9 and constitutionality of Title III which lurk behind it, because the case is properly resolvable on another basis.

Appellant attacks his confession on Miranda 10 as well as Mallory grounds, alleging that he did not effectively waive his Fifth Amendment privilege against self-incrimination. Our decisions have recognized the importance of inquiry as to whether the accused was effectively apprised of his rights when the admissibility of a confession under Mallory is at stake. 11 And as we recently observed in Naples v. United States, 12 which involved a pre-Miranda confession, the evolution in our understanding of Mallory has

'paralleled the visible movement by the Supreme Court towards the application of Fifth and Sixth Amendment considerations to the pre-arraignment

Page 1165

period. That movement culminated, of course, in Miranda, in the shadow of which Rule 5(a) now resides and which has probably made academic problems of the kind we confront on this record.' 13

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. 14'The delay (in presentment before a magistrate), ' Mallory admonished, 'must not be of a nature to give opportunity for the extraction of a confession.' 15 Its parent opinion, McNabb v. United States, 16 rested on the proposition that

'legislation (comparable to Rule 5(a)) * * *, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard-- not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the 'third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime.' 17

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.' 18 These, of course, are precisely the concerns of Miranda.

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 * * *.' 19 But this remedy was at best imperfect because some delay in presentment is unavoidable and, as Mallory concedes, additional delays for some purposes may be justifiable. 20 Such postponements are, of course, as susceptible to abuses as any others, and experience has exemplified the difficulty inherent in ascertaining either the real purpose of a challenged delay or the actual nature of

Page 1166

interrogations carried out behind closed stationhouse doors. 21

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. 22

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, 23 also a waiver of an immediate judicial warning of constitutional rights. 24 And what Miranda, as a constitutional interpretation, leaves an accused at liberty to yield, he may, we believe, forego equally under Mallory. 25 Provided the exacting

Page 1167

standards for waiver are met, the overriding purpose of Mallory has been served. 26

By no means is this to say that unjustified delay in compliance with Rule 5(a) has no bearing on the...

To continue reading