Muldrow v. United States

• Decision Date: 06 September 1960
• Docket Number: No. 16804.,16804.
• Citation: 281 F.2d 903
• Parties: Tony E. MULDROW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F.2d 903 (1960)

Tony E. MULDROW, Appellant, v. UNITED STATES of America, Appellee.

No. 16804.

United States Court of Appeals Ninth Circuit.

September 6, 1960.

Arthur S. Freedman, Emil M. Stranz, Norwalk, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Timothy M. Thornton, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS and BARNES, Circuit Judges and BURKE, District Judge.

BARNES, Circuit Judge.

Appellant was convicted in two counts of violation of 18 U.S.C. § 1708 prohibiting the taking and opening of mail left for collection. He was sentenced to one year's confinement on each count, the sentences to run concurrently, and credit was given for fifty-two days already served. This Court has jurisdiction of the appeal from this conviction. 28 U.S. C. § 1291.

One Friday night in San Bernardino, California, a passerby saw appellant wandering down the street drunkenly. The passerby testified that he saw Muldrow take a package from on top of a mail depository, and rip it open. The package originated in New York and was addressed to a person in San Bernardino. The box from whence the package was taken was a depository, not a mailman's collection point.

The passerby called the police, and after some looking around appellant was located and arrested by the local police officer. Appellant was held in the San Bernardino jail. At 9:30 A.M. on Monday, the federal authorities were notified. A federal officer then checked with the addressee of the package and the passerby. He was unable to contact the United States Commissioner in San Bernardino because he was in trial. The federal officer took custody of appellant at 2 o'clock in the afternoon. He took appellant to his own office and questioned him for half an hour or an hour, during the course of which questioning appellant signed a confession. The officer thereupon took appellant before a committing magistrate in Riverside, California, eleven miles away. The testimony is that appellant was taken before the magistrate at 3 o'clock in the afternoon.

Appellant's first contention is that the admission of the confession into evidence was reversible error under Rule 5(a)¹ of the Federal Rules of Criminal Procedure, 18 U.S.C.A., and the McNabb doctrine. McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Cf. Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. The first case was decided before the Criminal Rules of Procedure were adopted, but the language involved is the same in all three cases. Their legal principle is here confused by the fact that appellant was held for over two days by local police officers before he came into federal custody. All time elements after appellant came into federal custody are not clear, but it is clear that the federal officer took appellant to his office and elicited a confession before taking him before a magistrate. There is language in Mallory v. United States, supra, 354 U.S. at page 454, 77 S.Ct. at page 1359, which indicates that this procedure is improper:

"The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on `probable cause.\' The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be `booked\' by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt."

(Emphasis added.) On its face this language indicates the federal officer should have taken the appellant directly to the magistrate without stopping at his office for questioning and elicitation of a confession.

The government insists that there was no "unnecessary delay" in the arraignment of appellant, which is what Rule 5(a) proscribes. It contends that the time appellant was held in custody by local officers cannot be held against the federal officer. It seems to us that this factual situation should occupy some middle ground. It should not be ignored entirely, nor can it be considered as federal custody. We think it should be taken into account in determining the reasonableness of the delay that did ensue after the federal officer took custody. See Carpenter v. United States, 4 Cir. 1959, 264 F.2d 565, holding state custody is not to be considered unless on behalf of the federal government.

The government contends that the appellant bore the burden of proving that the delay was in fact unreasonable, and failed to meet such burden. The government cites Joseph v. United States, 5 Cir. 1957, 239 F.2d 524. This places the burden on appellant, and states that the mere fact that the confession was obtained before arraignment does not invalidate it. The government also cites United States v. Heideman, D.C.Cir., 1958, 21 F.R.D. 335, 337 (Judge Holtzoff), for the point that the framers of the rules did not intend that "without unnecessary delay" should mean "immediately," and allowed a confession to be introduced on somewhat similar facts.

The government likewise relies on a recent case in this Circuit: Williams v. United States, 1959, 273 F.2d 781. Neither side has cited Ginoza v. United States, decided by this Circuit on June 6, 1960, 279 F.2d 616.

It is obvious that "without unnecessary delay" does not and cannot mean "instantly." The language of Mallory indicates that the "without unnecessary delay" of the statute is equivalent to "as quickly as possible." Such phrase means as quickly as is possible after certain matters have been attended to. As this Court suggested in Ginoza, supra 279 F.2d 620, such matters might well be (a) the "booking" of a suspect, (b) a "quick verification through third parties" of a "story volunteered by the accused," (c) a search of the arrested person. Indeed, all such matters are vital to protect against arraignments which the facts, as finally established, do not justify.

The McNabb opinion shows that reasonable promptness in taking a prisoner before a committing magistrate and the showing of legal cause why an arrested person is detained was necessary to check "resort to those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use." This procedural requirement "outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection." McNabb, supra, 318 U.S. at page 344, 63 S.Ct. at page 614.²

In Upshaw v. United States, supra, 335 U.S. at page 412, 69 S.Ct. at page 171, Mr. Justice Black held that the McNabb rule was to apply to voluntary as well as involuntary confessions. The purpose of the requirement for prompt commitment was to prevent "secret interrogation of persons accused of crime."³

But as pointed out in United States v. Mitchell, 1944, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140, this cannot be an absolute rule. If it were, a voluntary confession of the commission of a crime to an arresting officer immediately after arrest would be inadmissible. As Mr. Justice Reed points out in his dissent in the Upshaw case (note 38, at page 436 of 335 U.S., at page 183 of 69 S.Ct.), the Notes to Rules of Criminal Procedure, as prepared under the direction of the Advisory Committee, state at page 30 with reference to the phrase "within a reasonable time" that such language was intentionally used so as to save confessions, "where the delay in committal was brief and reasonably explained * * *." (Emphasis added.)

In the Mallory case, the period of detention was shorter (seven to ten hours) than in McNabb and Upshaw, but the availability of...