Adams v. United States
| Citation | 399 F.2d 574,130 US App. DC 203 |
| Decision Date | 21 June 1968 |
| Docket Number | No. 20547,20548,20549.,20547 |
| Parties | John E. ADAMS, Appellant, v. UNITED STATES of America, Appellee. Ernest J. STUCKEY, Appellant, v. UNITED STATES of America, Appellee. Melvin R. ROOTS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Mr. Warren C. Zwicky, (appointed by this court), Washington, D. C., for appellant in No. 20,547.
Mr. George C. Dreos, (appointed by this court), Washington, D. C., for appellant in No. 20,548.
Mr. David E. Varner, (appointed by this court), Washington, D. C., for appellant in No. 20,549.
Mr. A. Lee Fentress, Jr., Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Allan M. Palmer, Asst. U. S. Attys., were on the brief, for appellee.
Mr. James A. Strazzella, Asst. U. S. Atty., also entered an appearance for appellee. Mr. Scott R. Schoenfeld, Asst. U. S. Atty., also entered an appearance for appellee in No. 20,549.
Before BURGER, WRIGHT and McGOWAN, Circuit Judges.
These three appeals are from convictions under a joint indictment founded upon the robbery of a liquor store. Two issues are common to each appeal. They are (1) the existence of probable cause for arrest and accompanying search, and (2) the admissibility of testimony of a police station identification made during a period of illegal detention in violation of Rule 5(a), FED.R.CRIM.P.1 The former involves problems of intra-police department communication; and we find no error in the District Court's ruling on this point.2 We cannot agree, however, with its conclusion in respect of the asserted Rule 5(a) violation, which leaves us with no alternative but to reverse the judgments of conviction and to remand for a new trial. Cf. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L. Ed.2d 1479 (1957).
Appellants were arrested a few minutes after the police, at 1:40 P.M. on November 5, 1965, received a report of an attempted robbery of a North Carolina Avenue liquor store in the District of Columbia. They were taken from the point of arrest to the Robbery Squad offices at Police Headquarters. Arriving there at 2:00 P.M., they were put in several police line-ups during the next two hours. At 4:00 P.M. they were booked for the attempted robbery for which they were arrested, but there was no presentment to a magistrate on that charge that day. Remaining in custody, they were placed in several more police lineups between 4:00 P.M. and 8:00 or 9:00 that evening, and again the following morning between 8:30 and 10:00 A.M. It was in this latter series of exposures that they were identified by the owner of another liquor store, Whitaker's Wines and Liquors, as the persons who had robbed his store four days earlier, that is to say, November 2, 1965. At 10:00 A.M. on November 6, 1965, they were presented to a magistrate on the charge for which they had been arrested and booked, namely, the attempted robbery of the North Carolina Avenue store. Prosecution of that charge was apparently not pressed, however, inasmuch as the convictions appealed from are based upon an indictment for the robbery of the Whitaker store.
No challenge was made to the complainant's in-court identification of appellants, but a pre-trial motion was made to suppress testimony by Whitaker that he had first made an identification at the second day's line-ups. A hearing was held, and it was urged upon the District Court, as here that the line-up identification was the fruit of a period of illegal detention because of "unnecessary delay" within the meaning of Rule 5(a). At that hearing, the police testimony was that the arrest was made without warrant and only upon the probable cause supplied by the report of the attempted robbery at the North Carolina Avenue store. Upon arrival at Police Headquarters, so the police testimony goes, appellants were "advised of their rights" and then questioned for two hours about a number of unsolved, or "open," holdups. A number of line-ups were held throughout this period and until eight or nine o'clock that evening.
In the first of such line-ups, which means at some point between 2:00 and 4:00 P.M., appellants were identified by a witness from the North Carolina Avenue store as the perpetrators of the attempted robbery there. Several more line-ups followed in which appellants were viewed by a number of complaining witnesses in other robberies. After two hours of this, appellants were booked for the attempted robbery for which they were arrested. Line-ups continued until 8:00 or 9:00 that evening. Kept at Police Headquarters overnight, line-ups were resumed the next morning, and more complaining witnesses in still more open cases were brought in. One of these was Whitaker, who identified appellants as the robbers of his store on November 2. Presentment of appellants to a magistrate was then made on the attempted robbery charge for which they had been arrested and booked the day before.
At the trial, Whitaker was first examined by the prosecution about the circumstances of the robbery. He was next asked to relate the fact of his identification of appellants at Police Headquarters eight months before. Only after this did he make an in-court identification.3 A police officer also recounted in detail Whitaker's identification of appellants at Police Headquarters. It is the testimony as to the out-of-court identification that is at issue here.
The Government does not here contend that there was no violation of Rule 5(a). It argues, rather, that the exclusionary rule of Mallory is confined to testimonial statements, and that that rule does not encompass identifications made during a period of unnecessary delay. It relies upon earlier cases in this court assertedly to that effect.4 But no one of these cases involves the admissibility of testimony of an identification made at a police line-up during a period of delay in presentment prompted solely by a purpose to try to connect the defendant with crimes other than the one for which he has been arrested. These cases do variously indicate that this court does not regard a Rule 5(a) violation as automatically flowing from a police line-up or other effort to check the defendant's relationship to the crime for which he was arrested on probable cause. Lewis, for example, involved a handwriting sample, the availability of which the court felt could not have been affected by prompt presentment. There is a dictum in Mitchell v. United States, 114 U.S.App. D.C. 353, 316 F.2d 354 (1963), to the effect that, even if the delay for this purpose is too long, testimony of the identification is admissible if it was not the fruit of a testimonial admission. But this all falls far short of holding that arrest may be made for one crime, the detention continued beyond the limits of Rule 5(a) for investigatory purposes vis-a-vis other crimes, and the evidence obtained during such secondary detention used to convict of such other crimes.
Here, the lawful basis for appellants' arrest and detention rested solely on the probable cause for the belief that they had committed an attempted robbery on November 5 at the North Carolina Avenue store. There was no probable cause to detain them under arrest for other matters. Rule 5(a) provides that presentment without unnecessary delay shall be made on the charge for which they were arrested. To continue their custody without presentment for the purpose of trying to connect them with other crimes is to hold in custody for investigation only, and that is illegal; its operative effect is essentially the same as a new arrest and, if not supported by probable cause, it is an illegal detention.
It will not do to say that Rule 5(a) is not involved because appellants were not prosecuted on the charge for which they were arrested, booked, and eventually presented. The purpose of Rule 5(a) is to get persons lawfully arrested out of the police station and before a magistrate. At least in those cases where, as here, delay in presentment succeeds in turning up complicity in another and more serious crime than the one for which probable cause to arrest exists, the Rule can be made irrelevant by failing to prosecute the crime for which the arrest was made. This is not an available technique.
On the precise facts shown by this record, we think the effect of Rule 5(a) is to convert, at least as of 4:00 P.M. on the afternoon of appellants' arrest, their continued detention at the police station into an unlawful arrest without probable cause in respect of the crime for which they were convicted. It is not, thus, the precise scope of the Mallory exclusionary rule which is determinative here but, rather, the sweep of the general policy of excluding evidence gathered during a period of detention following upon an unlawful arrest.5 The applicable case among our precedents is Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1959), in which this court held that fingerprints taken from one illegally arrested must be excluded, and where it espoused the principle that anything of evidentiary value produced by such detention is proscribed. Speaking for the court, Judge Hastie said (at p. 467 of 262 F.2d):
In these situations it is deemed a matter of overriding concern that effective sanctions be imposed against illegal arrest and detention and the risks of overreaching inherent in such action. Even though highly probative and seemingly trustworthy evidence is excluded in the process, this loss is thought to be more than counterbalanced by the salutary effect of a forthright and comprehensive rule that illegal detention shall yield the prosecution no evidentiary advantage in building a case against the accused. All of this is bottomed on the Constitution itself. The Fourth Amendment makes protection of the...
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