concurring in result only.
I reluctantly concur with the result of this ease. Contrary to the majority’s opinion, I believe the Louisville Police Department’s “unwritten policy” of questioning a person arrested pursuant to a warrant before the accused has been either taken to jail or taken before a judge is in direct conflict with RCr 3.02(1). RCr 3.02(1) specifically states that “[a]n officer making an arrest under a warrant issued upon a complaint shall take the arrested person without unnecessary delay before a judge as commanded in the warrant.” (emphasis added). This rule ensures that once an individual is arrested pursuant to a warrant, they will be promptly returned to the custody of the court where they may exercise their right to bail. Ky.Const. § 16. Because RCr 3.02(1) only requires that law enforcement officers return the accused to the custody of the courts prior to questioning, it does not interfere with their general ability to question an accused. Basically, RCr 3.02(1) only removes a police officer’s discretion as to when to question an accused.
In the ease sub judice, appellant was arrested pursuant to a warrant which directed the arresting officer to ‘Tiring him [appellant] forthwith before the Judge.” The warrant further contained a yellow post-it note attached to it with handwritten instructions to “contact any city police robbery detective for interview before booking.” Consequently, after arresting appellant, instead of following the mandates of RCr 3.02(1) and the warrant, the arresting officers followed the directions of the post-it note and first took appellant to the robbery squad office.
In our majority opinion this Court held that “[t]he lack of a prompt appearance before a judicial officer is only one fact in an overall determination whether to suppress evidence.” Citing Little v. Commonwealth, Ky., 438 S.W.2d 527 (1969), we maintained that appellant cannot allege prejudice when he has failed to show that the delay was unnecessary and that the delay caused any prejudice to his fundamental rights. We go on to state that “because there was neither coercion or duress in obtaining the post-arrest statement”, there was no violation of the spirit of RCr 3.02.
I disagree, as RCr 3.02(1) was clearly violated. The policy of the Louisville Police Department violates, presumably knowingly, the clear language of RCr 3.02(1). If they do not make a criminal procedure rule of this Court, they should ask this Court to change it, not knowingly deviate from it themselves. *330While the conviction in this case should be affirmed, future convictions that are obtained under similar circumstances should be considered by this Court to have been obtained in bad faith, thus setting the stage for a reversal of the conviction. Ultimately, we should be wary of issuing opinions which, in effect, give the police the discretionary power to do what they will with a defendant in a warrant case. If we fail to enforce the clear language of RCr 3.02(1), we risk opening up a Pandora’s box by giving the police the right to deviate from the dictates of our criminal rules and run afoul of § 2 of the Kentucky Constitution which protects against the governmental exercise of arbitrary and absolute power.
Our opinion also addresses the issue of “unnecessary delay.” The majority cites Smith v. Commonwealth, Ky., 920 S.W.2d 514 (1996), as supporting the idea that unnecessary delay should not invalidate any confession or statements made during the post-arrest period unless coercive tactics were used. “While it is true that Smith did address unnecessary delay, that was not the main issue decided in that ease and, thus, should only be considered as dicta. Furthermore, unnecessary delay is really not the appropriate issue in this case. The real issue is whether the police, after they apprehended appellant subject to the arrest warrant, had the discretionary power to determine whether they would follow the dictates of the warrant, or alter it and take appellant to their own arena to interrogate him before delivering him to a judicial officer. According to RCr 3.02(1), they did not. Thus, their procedure violates RCr 3.02(1) and, being the standard practice of the Louisville Police Department despite the language of the rule, it is a “flagrant disregard for the rule” and should warrant a reversal in future cases.
JAMES LEVIN, Special Justice, and STUMBO, J., join in this opinion.