(concurring in the result).
I concur in the result reached by my colleagues. It is regrettable that the prisoner here was illegally detained at the time of his “voluntary confession”. Moreover, he was in jail neither as a person charged with the commission of a crime nor as a person awaiting arraignment. Instead, state officers, for their own convenience, had jailed him as a “material witness”, pursuant to the New York statute permitting such interference with the freedom of movement of persons not suspected of, and not charged with, crime.
I regret that it appears necessary to rationalize the result we reach by stating that, after all, the failure to comply with the prerequisites justifying petitioner’s detention was an immaterial and inconsequential slip-up by those officers charged with protecting the unsuspected as well as with pursuing the suspected.
In view of the content of the record, it would appear that petitioner still has an opportunity to present his case in the state courts by way of a motion for re-argument in the New York State Court of Appeals.
It seems clear we must affirm the court below, Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961), even though we would not hesitate to declare void a prisoner’s confession to a federal crime made in like circumstances if the prisoner were detained by federal officers.