Before PRETTYMAN, Senior Circuit Judge, and WILBUR K. MILLER and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1963.CDC.159
Petition for Rehearing En Banc Denied Sept. 25, 1963.
Robert A. Muschette and another were indicted May 8, 1961, for housebreaking and petit larceny. In a trial which began June 19, 1961, the jury was unable to reach a verdict, but a second trial in the following December resulted in conviction. Muschette was sentenced to imprisonment for a term of from two to six years to run concurrently with a four-to-twelve-year sentence imposed in an unrelated case in June, 1961, which he was serving when he was tried in the present case.
Muschette appeals, urging that his confession, without which he says he could not have been convicted, was extracted from him by physical abuse during a period of unnecessary delay in presenting him to a committing magistrate following his unlawful arrest without a warrant.
Evidence for the prosecution showed that during the night of April 6-7, 1961, police were attracted to a clothing store by the ringing of its burglar alarm. The store had been entered from an adjoining vacant building through a hole dug in the masonry wall, and a small safe had been carried from the first floor to a landing halfway up stairs leading to the second floor. The burglars set off the alarm as they ascended the stairs, so they abandoned the safe on the landing and fled the scene.
The officers found near the hole a sledge hammer, a watch, a crowbar and an army duffel bag containing a hacksaw and another crowbar. Imprinted on the duffel bag were a name and army serial number: "Jeffrey H. Matthews 13491323." It was revealed during a hearing out of the presence of the jury that Jeffrey H. Matthews, having been located and interviewed by the police, acknowledged ownership of the bag and stated he had last seen it about two weeks before when he was living with Robert A. Muschette at 403 M Street, N.E.
At about 2:00 p.m. April 7, police officers went to that address with the obvious purpose of asking Muschette about the duffel bag Matthews had said he had left there. They interviewed him in his upstairs room, to which he invited them to get away from the noise of a party going on in the lower part of the house. The officers observed in plain view a pair of trousers on which brick and mortar dust was seen. When Muschette, who admitted he owned the trousers, was asked about the source of the brick and mortar dust, he appeared confused and told two conflicting stories. Thereupon, at about 2:20 p.m. the officers arrested him and took him to the Safe Squad office in police headquarters, arriving there about 2:35 p.m. Within ten minutes thereafter, Muschette made an oral confession which took about five or ten minutes. Typing the statement was somewhat delayed because the stenographer assigned to that office was ill and arrangements had to be made for a typist from another office. However, it was completed and signed by Muschette and witnessed about 3:45 p.m. He was presented to the United States Commissioner a few minutes after 4:00 o'clock.
Prior to the trial, Muschette made a pro se written motion to suppress as evidence the articles taken from his room, contending that his arrest was illegal because the police did not have a warrant or probable cause and that therefore the seizure was unlawful. The motion was denied, but none of the articles seized was introduced as evidence in the subsequent trial.
Testifying at the trial, Muschette fixed the visit of the officers at an earlier hour, thus enlarging the interval between his arrest and his presentment to the Commissioner. He also claimed they arrested him before they had seen the soiled trousers. He denied committing the crime and repudiated the confession, saying the officers were repeatedly striking him on the sides of his head with a telephone directory *fn1 and he confessed to avoid the continuance of this physical abuse. The question whether the confession was voluntary was submitted to the jury and its verdict shows it did not accept Muschette's statement that he had been coerced by police brutality.
The discovery of Jeffrey Matthews' duffel bag containing burglary tools and his statement about it fully justified the police in going to 403 M Street and interviewing Muschette about it. Indeed, the information then in hand required that they inquire of Muschette whether the duffel bag had in truth ever been in his house, and if so how it happened to be at the scene of the crime. But clearly at that point they had no cause to arrest Muschette. Naturally Matthews assigned the incriminating bag to some place other than his own possession, but the probability of the truth of his immediate response was, to say the least, doubtful. There may have been, at that stage of events, cause to arrest Matthews but certainly none to arrest Muschette. And, moreover, even Matthews did not inculpate Muschette; he merely said he had left the bag at Muschette's house. So the officers went to Muschette's house.
The officers knew the burglars had broken through a brick wall into the store where the duffel bag and the burglary tools were discovered; and, of course, they had seen the litter of shattered brick and mortar caused by breaking the opening through which the burglars had crawled. On a chair in Muschette's room, in plain view, was a pair of trousers and on the trousers was telltale brick and mortar dust. Muschette admitted ownership but told conflicting stories. Here, then, in the cumulated data, was probable cause, so they arrested him.
As the jury determined, from evidence which amply justified their conclusion, that the confession had not been extracted by police brutality but was voluntarily given, we turn to consider whether, after Muschette's arrest, there was unnecessary delay in presenting him to a committing magistrate which, under the Supreme Court's Mallory ...