could not be deemed voluntary although in the Judd case one of the judges dissented.
By contrast, in the case at bar, the defendant made a confession and informed the police that two articles that might be of importance were in his possession in his room. There is much greater probability that such a consent would be given voluntarily than the consents of the type involved in the Judd and Higgins cases. This is made very clear in Judge Edgerton's opinion in the Higgins case (93 U.S.App.D.C. 340, 209 F.2d 820) in which he stated, 'Words or acts that would show consent in some circumstances do not show it in others. * * * If a valid confession precedes a search by police, permission may show true consent to the search.'
Gibson v. United States, 80 U.S.App.D.C. 81, 149 F.2d 831, also cited by the defendant is not in point. There the police, in possession of a warrant of arrest, entered the wrong apartment and were admitted by its occupants. The Court held that, under such circumstances, failure to protest against the search or mere acquiescence in it did not constitute an affirmative voluntary consent. Cradle v. United States, 85 U.S.App.D.C. 315, 178 F.2d 962 is likewise not in point because the seizure involved in that case was upheld.
The defendant raises one other point that requires brief notice. The defendant claims that, since the seizure took place and perhaps information concerning the existence of the articles was obtained after the time when the defendant should have been brought before a committing magistrate, the Government is not at liberty to make use of the evidence. This Court is of the opinion that the so-called McNab doctrine may not be carried that far.
As a matter of fact, Rule 5 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which governs the arraignment of a prisoner before a committing magistrate, imposes no penalty for failure to bring the prisoner before a committing magistrate 'without unnecessary delay'. An examination of the history of the Federal Rules of Criminal Procedure will show that a proposal was made but rejected by the Advisory Committee that any confession obtained during a period of undue delay should be inadmissible. The reason why it was rejected is obvious, because otherwise the penalty for the miscalculation or mistake of the officer would be imposed on the public and not on the officer.
The opinion of the Court of Appeals in this case holds, however, that the written confession must be excluded. This is the law of the case and is binding on this Court at this trial. To be sure, this Court is of the opinion that the Court of Appeals sub silentio overruled the Watson case in Rettig v. United States, D.C.Cir., 239 F.2d 916. The Rettig case is particularly important because the opinion was rendered by the entire Court en banc. Five of the nine circuit judges held that failure to bring a defendant before a committing magistrate in due time, standing alone, in and of itself, is not sufficient to warrant the exclusion of a confession made within the period of undue delay.
This Court is of the opinion, however, that since the opinion of the Court of Appeals in this case is the law of this case, it must govern the trial and the subsequent decision in the Rettig case cannot apply to it. The Court knows of no authority, however, to the effect that any information or any articles obtained during the period of undue delay in arraignment must be excluded. Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690, cited by the defendant, does not sustain the defendant's position on this point. In that case, the information obtained by the police was secured after an unlawful entry into premises in violation of the Fourth Amendment. In other words, it was secured in violation of a constitutional right of the defendant.
The right to an arraignment before a committing magistrate without undue delay is not, however, a constitutional right. There is no right under the due process clause of the Constitution to a preliminary hearing before a magistrate. That right is purely statutory. I say 'statutory' because the Federal Rules of Criminal Procedure have the force and effect of statutes and are more than merely rules of court. The mere fact that the police have made a mistake or a miscalculation in determining when the defendant should be arraigned should not visit upon the public the consequence of excluding from evidence objects obtained during that period if, as the Court holding here, they were obtained legally and not in violation of the Fourth Amendment.
The Court must observe that the primary purpose of a trial of a criminal case is to determine whether the defendant has or has not committed the offense with which he is charged. If an affirmative determination is made it must, of course, be based on proof beyond a reasonable doubt. Moreover, this determination must be reached in accordance with civilized standards and applicable rules of law. Nevertheless, the guilt or innocence of the defendant is the issue to be determined and everything else is secondary.
The object of the criminal law is to protect the public against depredations of a criminal. On the other hand, its purpose is also to prevent the conviction of the innocent, or the conviction of a person whose guilt is not established beyond a reasonable doubt. The Court must balance all these aims of the trial. This view was eloquently stated by Mr. Justice Cardozo in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 122, 54 S. Ct. 330, 338, 78 L. Ed. 674:
'* * * justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.'
A similar view was expressed by Chief Justice Vanderbilt in State v. Tune, 13 N.J. 203, 217, 98 A.2d 881, 888. His comments are important not only because New Jersey has, in effect, adopted the Federal Rules of Criminal Procedure but also because Chief Justice Vanderbilt was the Chairman of the Advisory Committee appointed by the Supreme Court to draft the Federal Rules of Criminal Procedure. He says:
'* * * although we are ever alert to protect the rights of the individual accused, we should remember that the people of this State must also be protected. In weighing the rights of the individual and those of the State, we must not be carried away in our desire to protect the individual accused to such an extent that the safety of the public is jeopardized.'
In view of the considerations that have been reviewed, the motion to suppress is denied.
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