Greenwell v. United States, 18193.

• Decision Date: 13 August 1964
• Docket Number: No. 18193.,18193.
• Citation: 336 F.2d 962,119 US App. DC 43
• Parties: Harold W. GREENWELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

119 US App. DC 43, 336 F.2d 962 (1964)

Harold W. GREENWELL, Appellant, v. UNITED STATES of America, Appellee.

No. 18193.

United States Court of Appeals District of Columbia Circuit.

Argued March 30, 1964.

Decided August 13, 1964.

COPYRIGHT MATERIAL OMITTED

Mr. Dean F. Cochran (appointed by this court), Washington, D. C., for appellant.

Mr. B. Michael Rauh, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker, Asst. U. S. Atty., and Frederick G. Smithson, Asst. U. S. Atty. at the time the record was filed, were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and McGOWAN, Circuit Judges.

WRIGHT, Circuit Judge.

Appellant, a youthful indigent, was convicted of robbing a District of Columbia bank in violation of 18 U.S.C. § 2113(a). This case has been here before,¹ and we have also previously considered the conviction of the co-defendant with whom he was tried.² Before us now are appellant's contentions that illegally obtained oral and written confessions, as well as certain illegally obtained physical evidence, were used against him at his trial.

I.

According to police testimony, appellant was arrested at about 9:00 P.M. on a weekday evening, September 26, 1961, inside a motion picture theater in Fort Worth, where he was sitting with his wife and infant child. The arresting officers — two F.B.I. agents assisted by two local policemen — informed him of the outstanding federal arrest warrant under which they were acting, and he readily admitted he was the man sought.³ Immediately after the arrest, the agents put appellant and his wife and child in a police vehicle and drove to the home of her mother where the wife and child were left. Continuing on in the car, the officers drove a few blocks and then parked on the street under a street lamp. The officers gave appellant their own substitute for a magistrate's advice as to his rights, and proceeded to interview him concerning the crime for which the warrant had issued. Within a few minutes, according to police testimony given at trial, appellant confessed to the crime in general terms.

During this interview, according to the arresting officers, appellant voluntarily stated to them that there was a sum of money at his parents' home, the proceeds of the robbery. Immediately thereafter the four officers took appellant to that house where the group entered two bedrooms. While the police held him by the belt, according to their own testimony, appellant uncovered from their hidden caches a number of items, including $2,083.00 in currency and a toy pistol. The seized items were taken by the officers and used against appellant at trial; a number of bills were found to have serial numbers identical with money stolen from the bank, and the toy gun was also connected to the holdup.

After the recovery of the evidence in appellant's parents' home, the F.B.I. agents brought him to local police headquarters. There, according to the agents, he voluntarily signed an extensive written confession covering the crime in some detail. Appellant was not brought before a magistrate until the next afternoon.

As noted in our prior opinion: "The Government's and appellant's versions of the relevant facts — as developed in the pre-trial documents and trial testimony — were diametrically opposed. * * * Appellant * * * testified that he was `grabbed . . . in the back of his pants,' threatened with physical violence, slapped in the face when he refused to confess orally, and tricked or beaten into signing the written confession; moreover, he denied consenting to the `search' of his mother's home." 115 U.S.App.D.C. at 45, 317 F.2d at 109.⁴

II.

The law requires an arresting officer to bring an accused before a magistrate "as quickly as possible." Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Naples v. United States, 113 U.S.App.D.C. 281, 284, 307 F.2d 618, 621 (1962) (en banc).⁵ We must decide whether appellant was "promptly taken before a judicial officer as the law required," or was "questioned while held in `plain disregard of the duty enjoined by Congress upon Federal law officers' promptly to take his before a judicial officer." Upshaw v. United States, supra Note 5, 335 U.S. at 413, 69 S.Ct. at 171, explaining McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943).

A basic purpose of Rule 5(a), F.R.Cr.P., is to make certain that a person arrested is advised by a judicial officer of his constitutional right to counsel and of his privilege against self-incrimination "without unnecessary delay." If the police detain an accused "until he has confessed," and only then, "when any judicial caution has lost its purpose, * * * arraign him," Mallory v. United States, supra, 354 U. S. at 455, 77 S.Ct. at 1360, the confession is inadmissible no matter how much, or how little, time was required to obtain it. The duration of the delay is not determinative, for "the problem is not to be solved by watching the clock * * *." Muschette v. United States, 116 U.S.App.D.C. 239, 241, 322 F. 2d 989, 991 (1963), rev'd mem. on other grounds, 378 U.S. 569, 84 S.Ct. 1927, 12 L.Ed.2d 1039 (1964). Once the police delay presentment for the production of evidence, the detention becomes illegal and the time for admissible threshold confessions has passed. See Spriggs v. United States, 118 U.S.App.D.C. ___, 335 F.2d 283 (1964); Perry v. United States, 118 U.S.App.D.C. ___, 336 F.2d 748 (No. 17,846 decided July 31, 1964). Compare United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944).

III.

Applying this standard, appellant's first confession must be excluded. Appellant's statements were not spontaneous admissions made immediately on arrival at a police station, while awaiting booking. Compare Naples v. United States, supra, 113 U.S.App.D.C. at 283, 307 F.2d at 620. The parking of the police vehicle en route from the place of arrest was admittedly a detour from the path toward prompt presentment, taken for the purpose of securing statements from the accused as to the crime. Cf. Akowskey v. United States, 81 U.S.App.D.C. 353, 158 F.2d 649 (1946). Interviews by Government agents with accused persons in the absence of counsel may be employed to develop investigative leads as to others, but not to produce evidence for the trial of the accused. Cf. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (and see New York cases cited id., 377 U.S. at 205, n. 5, 84 S.Ct. at 1202 n. 5); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

Ordinarily, arrest is the culmination, not the beginning, of police investigation. Under our adversary system confessions, including those obtained after the accused has been advised of his rights by the police, are not the normal proofs upon which convictions are obtained.⁶ Secret extra-judicial examination to produce damning evidence cannot be allowed to render useless or unavailing the right to "a trial `in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law.'" Massiah v. United States, supra, 377 U.S. at 204, 84 S.Ct. at 1202. To admit such evidence "would make the trial no more than an appeal from the interrogation; and the `right to use counsel at the formal trial would be a very hollow thing if, for all practical purposes, the conviction is already assured by pretrial examination.'" Escobedo v. Illinois, supra, 378 U.S. at 487, 84 S.Ct. at 1763.

The physical evidence recovered from the home of appellant's parents must also be excluded. After arrest, an accused is not to be taken by the police to some location where he can be used to develop Government evidence of guilt. This court has so decided with respect to using an accused to re-enact the crime. Naples v. United States, supra; Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106 (1957); Jones v. United States, 113 U.S.App.D.C. 256, 307 F.2d 397 (1962). The same principle applies to using the accused, before presentment, to recover the proceeds or the means of the crime, as evidence. In Watson v. United States, supra, 101 U.S.App.D.C. at 353, 249 F.2d at 109, where we considered the defendant's "admissions, his reenactment of the crime, his consent to the visit to his apartment and his turning over the clothing," we held: "All must fall together, as Mallory v. United States requires, for he was not arraigned until `judicial caution had lost its purpose.'" And in Naples the re-enactment itself, as it reached the jury through "police description of the actions of * * * the unwarned and uncounselled prisoner," was held excludable. 113 U.S.App.D.C. at 284-285, 307 F.2d at 621-622. Similarly here, the recovery, as it reached the court through police description of the actions of the unwarned and uncounselled prisoner, as well as through the physical objects recovered, should have been excluded.

The Government suggests that prompt recovery of the money was necessary to prevent its being removed by appellant's wife, who knew of his arrest. This argument goes to the reasonableness of an immediate search of the parents' home, without a warrant, by one or more of the four arresting officers, or other available police. But it could not authorize delaying appellant's presentment to take him to that home, and to use him to recover the items from their hidden storage places in the bedrooms. The currency and toy pistol were thus things "of evidentiary value which the public authorities have caused the accused to yield to them during illegal detention." Bynum v. United States, 104 U.S.App. D.C. 368, 370, 262 F.2d 465, 467 (1958).

The physical objects are excludable for another reason. The police were able to find the objects only because the appellant, during a period of illegal delay, told them of the location of the evidence. Like the narcotics in Wong Sun v. United States, 371 U.S....