United States v. Erving

• Decision Date: 31 January 1975
• Docket Number: No. 74-CR-55.,74-CR-55.
• Citation: 388 F. Supp. 1011
• Parties: UNITED STATES of America, Plaintiff, v. David ERVING, Jr., Defendant.
• Court: U.S. District Court — Western District of Wisconsin

388 F. Supp. 1011

UNITED STATES of America, Plaintiff, v. David ERVING, Jr., Defendant.

No. 74-CR-55.

United States District Court, W. D. Wisconsin.

January 31, 1975.

David C. Mebane, U. S. Atty. by Warren W. Wood, Asst. U. S. Atty., Madison, Wis., for plaintiff.

Paul R. Nesson, Jr., Voss, Nesson & Koberstein, S.C., Madison, Wis., for defendant.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

An indictment was returned herein on June 27, 1974, charging that on June 10, 1974, defendant had passed three Federal Reserve one-dollar notes which had been altered to appear as $20 notes, in violation of 18 U.S.C. § 472. Defendant has moved to suppress as evidence statements made by him in the course of an in-custody interrogation on June 11, 1974. I have previously entered certain findings of fact and conclusions of law from the bench, to the effect that the statements at issue were made voluntarily. The said findings and conclusions remain in full force, except as they may be modified or amplified by this opinion and order. The remaining issue concerns the absence of any hearing before a judicial officer prior to the time the statements were given.

I find as fact those matters set forth hereinafter under the heading "Facts."

Facts

Defendant was arrested on a state charge by city police officers in the City of Madison, Dane County, Wisconsin, at about 12:20 a. m., June 11, 1974. The cause for his arrest was a complaint that he had passed one or more "raised" (from $1 to $20) Federal Reserve notes at a Madison tavern on the evening of June 10, 1974. Defendant was taken from the point of arrest to the county jail and he remained in custody there until about noon on June 12, 1974.

Special Agent James Christensen of the United States Secret Service is stationed in Milwaukee, Wisconsin, which is about 80 miles east of Madison. The Secret Service in Milwaukee was informed by the Madison police concerning the complaint and arrest, and Agent Christensen was assigned to travel to Madison to investigate. He traveled to Madison promptly after being notified, and arrived in Madison some time during normal office hours on the morning of June 11. He was informed that four persons had been arrested by the Madison police in connection with the incident. Together with Detective Gordon Erickson of the Madison police department, he proceeded to interview the four persons, one by one. Defendant Erving was the third of the four to be interviewed. The interview of the defendant Erving was conducted in a room in the Madison police department, commencing at about 11:40 a. m. At no time subsequent to the arrest or prior to the conclusion of the challenged interview was the defendant in the custody of a federal officer. At no time subsequent to the arrest or prior to the commencement of the challenged interview had an interrogation of the defendant been conducted.

Initially during the interview, the defendant denied involvement in the alleged offense. He was told by the interrogating officers that there was a witness who could identify him as having passed one or more of the raised bills, and also that one of the raised bills had been found in his possession in the course of a search following the arrest. Defendant then gave a statement admitting the offense.¹

Both the jail in which defendant was confined and the police department in which he was interrogated were located in a building within which were also located several courts and judicial officers with jurisdiction in cases involving offenses against state laws and local ordinances. The said building was located no more than 100 yards from another building in which was located the office of a United States Magistrate. At no time subsequent to his arrest and prior to the conclusion of the challenged interview was the defendant taken before any court or magistrate. His initial appearance before a magistrate in connection with the incident for which he was arrested June 11, 1974, did not occur until September 30, 1974, and his arraignment did not occur until October 23, 1974. June 11, 1974, was a Tuesday and it was not a legal holiday. At all times during the challenged interview, Agent Christensen and Detective Erickson were aware that the defendant had not been taken before a court or magistrate.

Considering all of the circumstances surrounding the giving of the confession, including all of the circumstances referred to in 18 U.S.C. § 3501(b), specifically including the time which elapsed between the arrest of the defendant and the making of the confession, specifically including the time which elapsed between the arrest of the defendant and the time of his initial appearance before a magistrate, and specifically including the time which elapsed between the arrest of the defendant and his arraignment, I find that the confession was made voluntarily.

Opinion

The basic question raised by this motion is whether a confession, voluntarily made subsequent to arrest and prior to an appearance before a magistrate, may ever be suppressed in a federal district court solely because of the duration of the interval between the time of arrest and the time the confession was made.

If the answer is that a voluntary confession may never be suppressed solely because of such an interval, the motion to suppress in the present case must be denied, without more. But if the answer is that a voluntary confession may sometimes be suppressed solely because of such an interval, further inquiry must be made. An excellent account of the background to this question may be found in 1 Wright, Federal Practice and Procedure, Criminal §§ 71-76 (1969; through 1973 pocket part). Among other things, this background includes McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Rule 5(a), Federal Rules of Criminal Procedure; Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); and a 1968 act of Congress (18 U.S.C. § 3501). Prior to the enactment of 18 U.S.C. § 3501, it is clear that a voluntary confession could sometimes be suppressed solely because of such an interval.

In pertinent part, 18 U.S.C. § 3501 provides:

(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

(c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.

It is beyond debate that in enacting § 3501 in 1968, Congress was reacting unfavorably to court decisions which members regarded as conducive to the acquittal of guilty persons. The essence of Congressional intent was that the admissibility or inadmissibility of confessions should turn upon whether they are given voluntarily, rather than upon whether the police conform to certain standards of behavior. See United States v. Halbert, 436 F.2d 1226, 1234-1237 (9th cir. 1970). This basic policy is plainly stated in subsection (a): "a confession . . . shall be admissible in evidence if it is voluntarily given." This policy is implemented by the provision in subsection (b) that in determining the issue of voluntariness, the court is to "take into consideration all the circumstances surrounding the giving of the confession," including five factors, one of which is "the time elapsing between arrest and arraignment of the defendant making...