(dissenting in No. 6195).
I cannot concur in the opinion of the court so far as Leo is concerned*, for two reasons. In the first place, there was no state insulation. It is true that Leo’s arrest was not requested by the government, but at the same time it seems equally clear that the police acted solely in what they believed would be the government’s interest. Leo was not arrested for intoxication, but apparently only on a police hunch because he was outside John’s rooming house and unhappy to see them. On inquiry he was told that he was “under suspicion of a mail robbery job in Dorchester.” He was then booked for “suspicion of felony, to wit, a robbery.” The fact that the officer in charge of records could not identify the robbery does not indicate that it was not the postal one expressed orally to Leo. I find no affirmative evidence supporting this court’s statement (the district court, made no such finding) that he was “booked on state charges.” Insofar as such booking would extenuate the actions of the federal officials, I believe it should be the government’s burden to establish it. The fact that at some later time Leo was held on state charges, apparently after the lineup, which, again, was not shown to have been before the postal inspector’s interview, does not of itself meet the burden.
*404This matter, therefore, comes down to this. Leo, admittedly, was unlawfully arrested. After denying that he had any appreciable amount of money he was searched, again without probable cause, and the incriminating bills were found on his person. This, incidentally, revealed the falsity of his prior statement about lack of funds. That an inconsistent statement may itself be an improper product of an illegal arrest, see Commonwealth v. Palladino, 1964 Mass. A.S. 175, 195 N.E.2d 769. The district court found that it was proper not to take Leo before a Commissioner at 3:20 a. m. because of his intoxication. It made no finding with respect to why he should not have been taken by 9:30 a. m., and I can think of no good reason. A review of the record dispels any thought that the intoxication continued. Rather, so far as appears, Leo was simply held in detention on suspicion of a federal offense so that he could be interviewed by the postal inspectors. The government could not accept this gift and disclaim the imperfections. The mere fact that it had not requested the arrest does not mean to me that the excessive detention was not under the circumstances a “working arrangement” condemned in this respect in Anderson v. United States, 1943, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829. The court’s citation of United States v. Coppola, 2 Cir., 1960, 281 F.2d 340, aff’d per curiam 365 U.S. 762, 81 S.Ct. 884, 6 L.Ed.2d 79, where the defendant was held on bona fide state charges seems inapposite. In my view that Mallory is applicable the defendant’s statements and production of the bills during detention cannot be made use of by a finding that they were “voluntary.” Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. Among other things, a defendant is entitled to be told by a magistrate, not by a government inspector, what are his rights.
Furthermore, I cannot agree that Leo’s action in turning over the bills was “voluntary” in any real sense. Rather, this was fruit of the original illegal search. It is to be borne in mind that Leo’s first position, the one he would have preferred to take, was that he did not have this money. When he was later asked by the government officers “if he would like to empty out his pockets” he knew they then knew what was in them. He may well have thought that the best defense was to attempt to make a clean front. Such “voluntariness” does not mean that his conduct was not the product of the initial improper police action. Indeed, this seems as clear a case for the defendant as Commonwealth v. Spofford, 1962, 343 Mass. 703, 180 N.E.2d 673, where a number of federal decisions are collected. I regard the case in this respect as directly within the purview of Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. This rule, of course, applies, whether the improper police action was federal or state. Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669.
On either of these grounds I believe Leo’s motion to suppress should have been granted.
The errors as to Leo do not affect John. The court expressly ruled that the evidence of what Leo said, and the $20 bills themselves, were admitted only as to Leo, and were not to be considered on the conspiracy count. Cf. United States v. Harris, 7 Cir., 1954, 211 F.2d 656; cert. den. 348 U.S. 822, 75 S.Ct. 34, 99 L.Ed. 64S. And, in the charge, the court reminded the jury to segregate the evidence that had been separately admitted as to each defendant. I believe this was sufficient.