This is an appeal1 from a conviction for the armed robbery2 of the Meridian Market on August 24, 1966. The Government's proof against appellant consisted of in-court identifications by the proprietor and an employee of the market, and an oral confession by appellant while detained by the police after his arrest. Appellant offered no evidence in his own behalf. He now argues, as he did at trial, that the presiding judge should have excluded both the confession and the identifications, and thus left the Government with a case no better than his defense.

Both confessions and identifications made while an accused is in police custody without benefit of counsel are constitutionally suspect.3 Appellant's contentions on this appeal thus not atypically invoke doctrinal considerations that would have a vitiating effect on each prong of the Government's presentation unless exempted by special conditions. Accordingly, we must examine closely the circumstances surrounding appellant's confession and identifications in order to determine whether they pass the strict tests for admissibility which have been judicially prescribed.

* Appellant was arrested at 4:15 p. m. on September 7, 1966, pursuant to a warrant issued in connection with a robbery at Mike's Carry Out, and was taken to a precinct station. Upon arrival at about 4:30 p. m., the arresting officer immediately telephoned Detective Sergeant Robert T. Keahon, of the Robbery Squad, who instructed him to book appellant and bring him directly to the Robbery Squad office at police headquarters. At a pretrial hearing, held to pass upon the admissibility of the confession, Keahon testified that all arrestees brought to a precinct station are subsequently conveyed to headquarters for processing, that is, fingerprinting, photographing and completion of the "line-up sheet." In addition, Keahon stated that he was personally in possession of appellant's arrest warrant, "was familiar with the case, and * * * was going to handle the case. * * *"

The arresting officer called in a police wagon from the streets and, when it arrived, drove appellant through closing hour traffic to police headquarters, and presented him to Keahon at 5:20 p. m. Keahon ascertained that appellant had been advised of his rights by the arresting officer, and read to him from a form which gave the Miranda4 warnings in some detail. Appellant said he understood the contents of the form, did not want a lawyer, and would obtain one the next morning if necessary. He then signed a statement to the effect that he knew his rights and did not desire the assistance of counsel.

Keahon then "started talking to him about the Mike's Carry Out," the offense for which he had been arrested, but before he could utter more than a few words, appellant exclaimed, "I don't care, I want to clear Ted. Teddy didn't do it. * * * Teddy didn't shoot that woman in the High's store or rob her. I did." "Teddy," it developed, was one Theodore Moore, who had been arrested for a robbery at a High's Market. With that, appellant proceeded to confess, without prompting, to a series of other recent crimes, the fourth of which was the Meridian Market holdup for which he was convicted in this case. Keahon testified that he asked appellant no questions whatever about that affair except to identify the market appellant was admitting he had robbed.

The Meridian Market confession was made at 5:45 p. m. When appellant finished confessing to various other offenses, Keahon brought in witnesses to identify him.5 Formal processing was completed at about 7:30 p. m., and appellant was taken before the United States Commissioner on the following morning.

Appellant contends that his confession was inadmissible under Mallory v. United States6 because it was obtained during a period of unnecessary delay in his presentment before a judicial officer. The Government denies a Mallory violation and argues that, even if there were one, the confession is admissible under Title III of the so-called District of Columbia Crime Bill.7 We think the record raises a substantial question as to whether appellant's transfer from the precinct station to police headquarters was an unnecessary delay in terms of contemporary judicial construction of Rule 5(a) of the Federal Rules of Criminal Procedure.8 We do not, however, reach that question, or the sensitive issues concerning the applicability9 and constitutionality of Title III which lurk behind it, because the case is properly resolvable on another basis.

Appellant attacks his confession on Miranda10 as well as Mallory grounds, alleging that he did not effectively waive his Fifth Amendment privilege against self-incrimination. Our decisions have recognized the importance of inquiry as to whether the accused was effectively apprised of his rights when the admissibility of a confession under Mallory is at stake.11 And as we recently observed in Naples v. United States,12 which involved a pre-Miranda confession, the evolution in our understanding of Mallory has

"paralleled the visible movement by the Supreme Court towards the application of Fifth and Sixth Amendment considerations to the pre-arraignment period. That movement culminated, of course, in Miranda, in the shadow of which Rule 5(a) now resides and which has probably made academic problems of the kind we confront on this record."13

Now we must consider directly the effect on Mallory of a Miranda that has come of age.

Although not explicitly premised on constitutional grounds, Mallory has been ultimately concerned with effectuation of Fifth and Sixth Amendment protections against the dangers of involuntary self-incrimination in stationhouses and with the other evils inherent in police interrogation of an accused in secret.14 "[T]he delay [in presentment before a magistrate]," Mallory admonished, "must not be of a nature to give opportunity for the extraction of a confession."15 Its parent opinion, McNabb v. United States,16 rested on the proposition that

"[l]egislation [comparable to Rule 5 (a)] * * *, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the `third degree' which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime."17

Mallory itself has stood guard against not only the "third degree," but also "the pressures in a Police Station upon prisoners under secret interrogation without counsel, relative or friend."18 These, of course, are precisely the concerns of Miranda.

The Mallory solution for these iniquities was enforcement by an exclusionary rule of the requirement that the accused be brought "before a judicial officer as quickly as possible so that he may be advised of his rights * * *."19 But this remedy was at best imperfect because some delay in presentment is unavoidable and, as Mallory concedes, additional delays for some purposes may be justifiable.20 Such postponements are, of course, as susceptible to abuses as any others, and experience has exemplified the difficulty inherent in ascertaining either the real purpose of a challenged delay or the actual nature of interrogations carried out behind closed stationhouse doors.21

In Miranda, the Supreme Court eschewed this uncertain detour through Rule 5(a) and attacked the problem of custodial interrogation directly. It held that the accused is entitled to the assistance of counsel before he is questioned and, in effect, that any confession he makes while in exclusive police custody prior to arraignment is presumptively inadmissible under the Fifth and Sixth Amendments. Such confessions can stand if, but only if, the accused affirmatively and understandingly waives his rights, and the Government bears "a heavy burden" in attempting to show such a waiver.22

Thus, absent convincing evidence of waiver, no confession may be admitted, regardless of the dispatch with which the accused is presented before a magistrate. Conversely, should the Government carry its burden, we think it follows that the confession is not inadmissible solely on the ground that the accused was not taken before a magistrate at the earliest possible moment. A valid Miranda waiver is necessarily, for the duration of the waiver,23 also a waiver of an immediate judicial warning of constitutional rights.24 And what Miranda, as a constitutional interpretation, leaves an accused at liberty to yield, he may, we believe, forego equally under Mallory.25 Provided the exacting standards for waiver are met, the overriding purpose of Mallory has been served.26

By no means is this to say that unjustified delay in compliance with Rule 5(a) has no bearing on the admissibility of a confession forthcoming during a period of such delay. As Miranda made clear,

"[w]hatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege."27

Thus, the greater the tardiness in presentment prior to a confession, the heavier the Government's already "heavy burden" of showing effective waiver. Certainly some conceivable delays are so long that no subsequent confession could be deemed the product of voluntary waiver. And nothing in Miranda affects the admissibility vel non of evidence of any sort obtained during detention following an illegal arrest.28

Thus the vital question here is whether appellant voluntarily and understandingly waived his Miranda rights. If he did not, his confession was inadmissible under Miranda. If he did, the confession was admissible even if the purpose inspiring his transfer to police headquarters was interrogation for the production of evidence.29

The record discloses that appellant objected when, as he began his string of confessions, Sergeant Keahon started to take notes on his confession. How strenuously he objected does not appear, but it is noteworthy that Keahon stopped writing at that point. He testified entirely from memory to the details of the confession, which was made a year before the trial began, explaining that

"at the beginning of his admission, I started to write notes, and he stopped me and said: Don't write anything down. I will tell you about this but I don't want you to write anything down."30

The strong implication is that appellant thought his confession could not be used against him so long as nothing was committed to writing. If, as his avowed motive for confessing suggests, he was brooding over a guilty conscience while the warnings were being given, he might well have failed to absorb their message. Or he may simply have been laboring under the common misapprehension that the police could not use in court anything he said unless they were able to introduce a written statement. Whatever the reason, the evidence raises a serious question as to whether he intelligently waived his right to remain silent.31

Appellant was given the Miranda warnings in their entirety. He signed what purported to be an express waiver. If there were no other evidence in the record, the Government would have discharged its burden, and no further inquiry would be necessary. But while "[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver,"32 Miranda teaches that in many circumstances it does not.33 Here, Sergeant Keahon's testimony suggests powerfully that the waiver was not understandingly made; in addition, the hour appellant spent in custody before the ceremonial "waiver" casts doubt on whether it was voluntarily made. Since the Government offered no evidence to dispel these doubts, we cannot say on this record that it carried its "heavy burden * * * to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination * * *."34

The Government argues, however, that because the question was not raised below, appellant should not be allowed to present it here. We disagree. Appellant's counsel35 was initially confronted with the signed waiver and what appeared to be a spontaneous confession. It is scarcely surprising that he prepared a Mallory, not a Miranda, argument. The evidence connoting that appellant did not understandingly waive his rights did not develop until the direct examination of Sergeant Keahon. Defense counsel then made an apparent attempt to raise the issue in a general way, but the matter was lost in the Mallory argument he was pursuing. We do not demand more of appellants as a condition to litigation of issues fundamental in the criminal process.

Nonetheless, because the Government had no clear warning that it would need to produce more evidence, we are reluctant to reverse for a new trial. Appellant's ban on note-taking inveighs against intelligent waiver, but this inference might be overcome, for example, if Sergeant Keahon admonished him that even an oral confession would be used against him, and appellant replied that he knew that but still did not want anything written down. Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand. Accordingly, we shall remand the record in this case to the District Court for an evidentiary hearing and findings of fact on the validity of appellant's purported waiver.36

Appellant also contends that the trial judge erred in permitting two eyewitnesses to the Meridian Market robbery to identify him at the trial as a participant. His argument is that these incourt identifications were products of prior extrajudicial identifications made in circumstances so unnecessarily suggestive and promotive of faulty recognition as to impinge on due process of law.37 We deferred our disposition of this case to enable evaluation of appellant's claim in the light of the recent Clemons38 decision by the full court.

One, but only one, of the pretrial episodes complained of falls within the area of constitutional condemnation. More than a month after appellant's arrest, Louis I. Reznick, the owner of the market, and William Simpson, an employee, both of whom were present when the holdup occurred, viewed appellant while confined in a cellblock. Appellant was the only person they were shown, and both witnesses knew at the time that appellant had confessed. As the Government now itself characterizes the incident, this single-suspect cellblock confrontation was "indeed suggestive"; so much so, we hasten to add, as to render it offensive to due process.39

The Government, however, did not rely upon the out-of-court identifications at the trial.40 The question, then, is whether the in-court identifications had a source sufficiently independent of the cellblock exhibition as to be free from its taint.41 The trial court found that there was no taint, and we deem the evidence adequate to support that finding.42

Reznick and Simpson each testified at trial that they remembered appellant from impressions received at the time of the robbery. The offense was perpetrated by two men during daylight hours over a period of several minutes during which both Reznick and Simpson had excellent opportunities to scrutinize the two robbers. Afterwards, they gave the police detailed joint descriptions of the culprits, one of which depicted appellant reasonably well. In addition, Reznick selected appellant's photograph out of "a box of pictures" given him by the police shortly after appellant's arrest. This evidence, we hold, was sufficient to support the finding that Reznick's identification was not tainted by the cellblock confrontation.43

As to Simpson, who made no prior photographic identification, the proof on independent source for his in-court identification included a very significant event. On the night of appellant's arrest, Simpson was brought to police headquarters to identify him. According to the uncontradicted testimony of Detective Keahon,

"when Mr. Simpson walked into the office, he saw Frazier and he said: There's the man that approached me in the back and stated, this is a holdup. And at the same time the Defendant Frazier shook his head; and I asked him what did he mean by shaking his head; and he said: Yes, that is the man that was behind the meat counter."

Ordinarily, an identification arising out of so suggestive a confrontation would itself be constitutionally dubious.44 Here, however, not only did Simpson identify appellant, but appellant also identified Simpson. There can be no doubt on the record that by "the man that was behind the meat counter," appellant referred to Simpson's presence there at the time of the robbery. At this juncture, his urge to confess was so strong that he even acted out one of the other holdups to which he had confessed in order to convince hesitant eyewitnesses to that crime that he had indeed been the perpetrator. His statement, however, is relevant here, not because it is evidence of guilt and thus, indirectly, of the reliability of Simpson's identification, but rather because it tends directly to confirm the existence of an independent source for the challenged identification. And, with this, there could hardly be any "substantial likelihood of irreparable mistaken identification."45

We remand the case to the District Court for proceedings consistent with this opinion.

Remanded.

BURGER, Circuit Judge (concurring in part and dissenting in part):

I agree that the identification testimony was properly admitted under the principles recently set forth by this court in Clemons v. United States, 133 U.S. App.D.C. 27, 408 F.2d 1230 (Dec. 6, 1968) en banc, but I do not agree with those parts of the majority opinion relating to the inadmissibility of statements which Appellant made to the police.

(1)

The sole issue separating me from the majority is whether Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) required Appellant's statements to be excluded from the evidence. In answering this question affirmatively the majority leans heavily on Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957), the standing of which has been drawn into serious doubt by recent Congressional enactments.1 The majority's cognizance2 of the message that this series of legislation bears for Mallory and their apparent agreement with the lower court's finding that Mallory was not violated here,3 belies Mallory's true significance to the issues at hand. Moreover it is unsound to treat Mallory and Miranda as closely related; the former is a quantitive test of time delay, the latter is a qualitative test of the circumstances of the interrogation.4

Of more concern is the majority's expansion of Miranda into a per se exclusionary rule, thereby transcending the Fifth Amendment requirement that only those statements elicited through compulsion be excluded from evidence. Indeed, Miranda itself cannot be read as going beyond the language of the Fifth Amendment.5 Any lingering doubts on this score were resolved by a recent exposition on the subject by the Supreme Court. In discussing the scope of Miranda the Court pertinently noted in Hoffa v. United States, 385 U.S. 293, 303-04, 87 S. Ct. 408, 414, 17 L. Ed. 2d 374 (1966), that, "since at least as long ago as 1807, when Chief Justice Marshall first gave attention to the matter in the trial of Aaron Burr, all have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion." (Emphasis added) (footnote omitted)

In Miranda the Supreme Court held that certain warnings must be given to a suspect before "custodial interrogation" could be conducted. The underlying assumption was that these warnings were necessary to prevent the subversion of trial rights at unsupervised pretrial confrontations between an accused and the State. Whereas pre-Miranda cases had alternately invoked the Fifth and Sixth Amendments6 Miranda made clear that the Fifth Amendment was the central value at stake. The articulation of a stringent waiver requirement was merely a device through which the Court sought to ensure that Fifth Amendment guarantees were not unduly impaired at pretrial interrogations. The guidelines set forth in Miranda were means servicing constitutionally prescribed ends; as artifices of implementation they are subordinate and only incidental to the rights they were designed to secure. By postulating a waiver concept the Court did not intend to eclipse the threshold inquiries into the presence of compulsion and the quality of police conduct attending the making of inculpatory statements. This is the background of controlling legal principles on which this case ought to be decided. I do not agree that they give rise to a plausible claim of improper police tactics amounting to coercion requiring reversal or remand.

(2)

Frazier was presented to Officer Keahon at headquarters at 5:20 P. M. Their meeting was prefaced by Keahon's reading the Miranda warnings to him from PD-47 (a form card which all police officers carry and which had previously been read to Frazier by Officer Sandy upon his arrest). He repeated these warnings to Frazier when he read PD-54, a form which advised him of his Fifth and Sixth Amendment rights7 and contained a statement of an intention to waive his right to remain silent and his right to counsel. Thereafter, at 5:30 P. M., Frazier himself read this form, orally stated that he understood its meaning,8 and signed the waiver.

Officer Keahon testified that he then read the arrest warrant relating to the robbery of Mike's Carry Out Shop and started to question Frazier on that robbery. But, after Keahon had spoken but a few words, Frazier blurted out his desire to clear a third person who had been arrested for the robbery and shooting at a High's Store. Within minutes Frazier, by way of exculpating others, admitted to his involvement in the robberies at the High's Store, at Mike's Carry Out Shop, at the Dodge Market, and at the Meridian Market — the last robbery being the one for which he was convicted in this case. During this discourse Frazier objected to Officer Keahon's taking written notes. Keahon testified: "At the beginning of his admission, I started to write notes, and he stopped me and said: `Don't write anything down. I will tell you about this but I don't want you to write anything down.'" [Tr. 72.]

The admission of the Meridian Market robbery was unsolicited and appears to have been volunteered. Officer Keahon testified that he did not ask Frazier whether he participated in the Meridian Market robbery and that the only questions asked in relation to that robbery during the initial confession were for the purpose of corroborating the identification of the market. Thus it seems that the confession was totally spontaneous and voluntary.

Following the statements Frazier was retained in the robbery squad office for nearly two hours, where he was quizzed in detail about the four robberies, reiterated his confessions, was displayed to several witnesses, and reenacted several of the robberies. Thereafter he was placed in a cell for the night because a Commissioner was not available and was presented the following morning.

(3)

The record demonstrates entirely reasonable police activity satisfying the deterrent purposes underlying the Miranda rule. There is not a scintilla of evidence suggesting that what had been forthcoming from Appellant's lips was the result of unreasonable or improper police conduct. The fact that Appellant may not have desired the statement to be transcribed does not compel the conclusion that he was being subjected to the kind of police activity found unconscionable in Miranda. The most that can be said from Appellant's statements is that he may have unintentionally incriminated himself. The Fifth Amendment, however, serves neither to discourage nor to prohibit self-incrimination, it militates only against compulsory self-incrimination. The record does not even remotely suggest that Appellant was being compelled to incriminate himself, no less compelled to utter any words at all. There is not the slightest indication that Appellant was unaware of his rights or labored under a misbelief that his failure to speak could be used against him as evidence of guilt. There is no intimation that the environment would have neither permitted nor honored a non-waiver.

In fact, no issue is even purportedly raised as to Appellant's willingness to make the statements that were eventually used against him. Indeed, evidence of his volition may be inferred from his voluntary participation later that evening in a series of identification procedures. In view of the obvious spontaneity surrounding its making, the statement could plainly have been used as a threshold oral confession.9

In this regard it also bears noting that the "plus factors" so frequently contributing to a rejection of a confession are not present in this case. Frazier was repeatedly told of his right to counsel and his right to remain silent; he confessed immediately and without prior denials; he never repudiated his confession and he did not make any allegations of coercive threats or physical abuses.10

By equating Frazier's insistence that the police not write notes with a desire not to incriminate himself, the majority engages in sheer speculation of Appellant's thought processes which places a premium on the capacity of judges to probe Appellant's mind. This approach bears an unfortunate resemblance to the sophistry engaged in by the courts which labored under the albatross of Betts v. Brady.11 Indeed, the rule requiring courts to peer through kaleidoscopes in search of constitutional violations inevitably deteriorated into measuring the constitutional right in terms of the suspect's need — and invariably a horribly guilty suspect at that. Although this theory received currency during the era of "special circumstances", twenty years of inconsistent application which produced no judicially manageable standards eventually persuaded the Supreme Court in Miranda12 to turn to an essentially objective13 mode of analysis.

Since the underlying purpose of Miranda was to curb police improprieties, the use of objective criterion provided courts with a more workable method of evaluating the reasonableness of police conduct. The unhappy theory holding the police accountable for environmental and personality factors unavoidably unique to each suspect and frequently beyond the pale of police perception came to rest in the shadow of an exclusionary rule grounded in deterrence. Indeed, the Supreme Court in Johnson v. New Jersey14 confirmed the essentially deterrent underpinnings of Miranda and thereby placed its imprimatur on an interpretation focusing on the reasonableness of police conduct instead of the vagaries of human nature.

Miranda did not set down a per se proscription against pretrial questioning; it was addressed primarily to abusive and unwarranted tactics designed to subvert constitutional rights. Even if Frazier unwittingly incriminated himself, the police should not be held accountable in the absence of some evidence of deceit or misconduct on their part. Here, of course, there is no such evidence. Indeed, the majority clothes Appellant's remarks with a significance bearing no relationship to the record or to ordinary human experience. Throughout the majority opinion is circumspect avoidance of any discussion relating to coercion or improper police conduct. To the extent Appellant's utterances may be construed as indicating a misunderstanding of the consequences of his making incriminatory statements the majority has failed to supply a nexus between this and the presence of improper police conduct amounting to coercion.

I have difficulty perceiving the basis for the majority's argument that it was unreasonable for the police to proceed with questions after Frazier made an apparently valid waiver. Although this waiver was not irrevocable,15 there is nothing to show that Frazier indicated "in any manner, at any time prior to or during questioning, that he wish[ed] to remain silent" or that he wanted an attorney. Miranda v. Arizona, supra at 473-474, 86 S. Ct. at 1627.

Having complied with the postulates of Miranda, it was the absolute duty of the police as law enforcement agents to investigate promptly the circumstances of the crime and the suspect's possible participation. I am somewhat at a loss to know what more the Government could or should have done to comply with the directives of Miranda. Even if Frazier did not understand the privilege against self-incrimination, the majority's approach is unrealistic and goes beyond the mandates of any decided cases. It seemingly expects the police to detect indications of misunderstanding and lack of knowledge which are so subtle that not even judges would recognize the problem.

The seeming anxiety of judges to protect every accused person from every consequence of his voluntary utterances is giving rise to myriad rules, sub-rules, variations and exceptions which even the most alert and sophisticated lawyers and judges are taxed to follow. Each time judges add nuances to these "rules" we make it less likely that any police officer will be able to follow the guidelines we lay down. We are approaching the predicament of the centipede on the flypaper — each time one leg is placed to give support for relief of a leg already "stuck", another becomes captive and soon all are securely immobilized. Like the hapless centipede on the flypaper, our efforts to extricate ourselves from this self-imposed dilemma will, if we keep it up, soon have all of us immobilized. We are well on our way to forbidding any utterance of an accused to be used against him unless it is made in open court. Guilt or innocence becomes irrelevant in the criminal trial as we flounder in a morass of artificial rules poorly conceived and often impossible of application.

The record raises the possibility that the only statements put into evidence were those made prior in time to Appellant's alleged equivocations.16 Police who act reasonably on facts presently in their possession should not be ascribed a taint by virtue of subsequent utterances of a suspect which might be said to exhibit symptoms forbidden by Miranda. The use of such a relating-back theory does violence to Miranda17 and brings us beyond the point of diminishing return in enforcing an exclusionary rule grounded in deterrence of proscribed police conduct.18 The Constitution does not prohibit police interrogation of suspects who have waived the right to counsel and the majority opinion will not and should not impede interrogation after a waiver. What the holding will do is confuse and baffle police — as it will many judges.