Coleman v. United States, 17444.

• Decision Date: 19 April 1963
• Docket Number: No. 17444.,17444.
• Parties: Tony A. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 191, 317 F.2d 891 (1963)

Tony A. COLEMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 17444.

United States Court of Appeals District of Columbia Circuit.

Argued February 15, 1963.

Decided April 19, 1963.

Mr. John W. Kern, III, Washington, D. C., with whom Mr. Cecil A. Beasley, Jr., Washington, D. C. (both appointed by this court) was on the brief, for appellant.

Mr. William C. Weitzel, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Before WASHINGTON, DANAHER and BURGER, Circuit Judges.

DANAHER, Circuit Judge.

This case presents an attack upon rulings by the trial judge as to the admissibility of evidence. Two phases are involved, the first dealing with an oral admission after arrest upon adequate probable cause.¹ The other had to do with earlier and totally unrelated offenses as to which the police had no evidence of complicity by the appellant except oral admissions and a confession elicited during interrogation after a time when he should have been presented before a committing magistrate.

The "seventh count" charged an attempted housebreaking which took place at 12:25 A.M. on February 24, 1961. The offense occurred practically in the presence of an officer who placed the appellant under arrest and took him to the precinct. There, as will appear, the appellant admitted his purpose to gain admittance to a delicatessen store at 944 Eye Street, N. W. The appellant argued in the District Court and here that his oral admission should not have been received in evidence against him² for he was not presented before the Commissioner until about 10 o'clock the next morning.

The other phase, the real heart of the case, involves admissions and a written confession which predicated counts one through six, which, respectively, charged housebreaking and larceny, each pair of counts relating to offenses which occurred on February 16, 19, and 21, 1961. After the appellant had been brought to the precinct on the attempted housebreaking charge, two detectives who were out in a cruiser were sent for. They took the appellant to a back room where they interrogated him. Their purpose was to ascertain appellant's possible complicity in certain "open" cases, burglaries in which, it was said, a common "technique" or pattern had been followed. The Government has argued here that court decisions applying the exclusionary rule in cases where there has been unnecessary delay in presenting the accused before a magistrate, apply only to "one-of-a-kind" situations. It is contended that the detectives here might properly have been "concerned that perhaps appellant was confused and had been confessing to some of these housebreakings when in fact he did not commit them." They had been committed in the same area in which the appellant had been arrested. They were said to have possessed certain similarities in execution and in the type of items stolen. We do not doubt that the police had a genuine interest in what appellant might have to say — but they had no evidence against him respecting counts one to six. We turn to more minute details.

About 12:25 A.M. on February 24, 1961, an officer observed the appellant who was then standing in the doorway of a delicatessen store. As the officer approached, appellant moved away some 10 to 15 feet, but by then, the officer could obtain a view of the doorway. He observed that a padlock had been knocked off and was hanging on one side of the door. He asked the appellant what he was doing in the neighborhood and was told that appellant was waiting for a friend. The officer then perceived an iron bar protruding from appellant's overcoat pocket. Appellant explained that he carried the 18-inch tire iron for self-protection. The officer arrested the appellant and searched him, finding in his pocket a pair of pliers and a screw driver. Appellant was then taken to the precinct, where the arresting officer reported to a sergeant. The arresting officer did not question the appellant at the precinct, but placed him in a "license room." It seems clear enough that Coleman thus, in light of such uncontroverted evidence, had not been brought to headquarters that a "process of inquiry" might be pursued to elicit "damaging statements to support the arrest and ultimately his guilt."³

But with the appellant in custody, an officer at headquarters sent for two detectives "to interrogate the defendant," as a Government witness testified. Apparently they were in charge of the investigation into the three earlier "open" cases. They arrived about 1 A.M., and took Coleman to their office in the rear of the precinct. While questioning appellant to gain information for a "line-up" sheet as to the attempted housebreaking for which he had been arrested, a detective asked Coleman if he had attempted an entrance to the delicatessen. As the appellant at first denied complicity and the occurrence was readily susceptible to quick verification, one of the detectives went out to the store and returned with paint samples and chips taken from the door, and confronted Coleman.⁴ Appellant's original denial then became "within a few minutes,"⁵ a frank admission after he saw the samples of paint and wood chips which, the detectives told appellant, were to be sent to the F.B.I. laboratory for purposes of comparison with particles found on the jimmy. The appellant stated "he was trying to break in 944 Eye St." Appellant's oral admission simply supplemented what was already known to, and at trial, clearly established by the testimony of the officer. We have not been shown unlawful police "purpose" or such a lack of "circumstances of legality"⁶ as to require reversal on this aspect of the case.

But that is not the end of the matter, for the interrogation went forward. The appellant was not then brought before a committing magistrate. The record shows that trial counsel developed that a Municipal Judge could have been called to conduct a preliminary hearing. An Assistant United States Attorney was available for nighttime appearances. But the police did not call one of the prosecutors nor was a judge notified. With ample evidence upon which to present Coleman, the detectives did not even "book" him — then, or throughout the night.⁷

Instead, it develops, the detectives really were interested in ascertaining whether or not the appellant was implicated in three other housebreaking episodes which had occurred on February 16, February 19 and February 21, 1961. All of these "open" cases involved small restaurants in the neighborhood, and in each, access had been gained by the use of a jimmy, such as the appellant's tire iron. The detectives questioned the appellant over the next hour or so. He finally admitted that he had broken into the premises involved, after which the police took him out of the precinct and put him into a police car that together they might view the scenes of the offenses in question. Thereafter the entire party returned to the precinct about 3:30 A.M. Over the next hour or so, one of the detectives typed up the appellant's confession, and Coleman signed it.

It would seem unnecessary in view of the Mallory opinion and our own subsequent decisions, that we now do more than point to what the Supreme Court has said is the "scheme for initiating a federal prosecution."⁸

First, wrote Mr. Justice Frankfurter, there must be no arrest on mere suspicion but only upon probable cause. Next, Rule 5 requires the prompt⁹ presentation of the accused before a committing magistrate. The accused must be advised of his rights as the Rule provides, and particularly he must be warned that "he is not required to make a statement and that any statement made by him may be used against him." The presence or the absence of "judicial caution" may often be the touchstone¹⁰ by which the courts ultimately are to determine whether or not confessions are to be received in evidence at the trial.

Upon the basis of the distinction previously discussed, the conviction on count seven will be affirmed.

As to counts one to six, inclusive, many hours after the initial brief delay, the appellant was presented before the Commissioner, some time after 10 A.M. During that period of protracted and unnecessary delay, the appellant's oral admissions and confession as to these counts were elicited from him, and at the trial, were received over the objection of trial counsel. The objection should have been sustained, and because it was not, the conviction on these counts must be reversed.

Affirmed in part.

Reversed in part.

WASHINGTON, Circuit Judge.

I concur in the reversal of the convictions on Counts 1 through 6. As to the conviction on Count 7, the misdemeanor, it is my view that since the sentence imposed on that count has been served in full the appeal is moot as to any issues arising from that conviction. See St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). While there may exist some question as to the continuing scope and vitality of the St. Pierre decision, the modifications that have been enunciated in subsequent Supreme Court decisions do not affect the instant case. A Federal court should not pass judgment on a contention arising in circumstances like the present unless the judgment might have some material effect, Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The burden is on the appellant (or petitioner) to show this effect to the court. See St. Pierre and Pollard, supra.¹

Even if it were true that review should be afforded in all cases of felony convictions, it remains clear that here, where a man with a long criminal record, cf. Parker v....