(concurring).
Judge Fahy’s opinion in this case was released on May 11, 1965. A statement of my views was to be released later. I am now publishing it separately, as follows:
I agree that appellant’s conviction must be reversed and remanded for a new trial because of the inadequacy of the finding on the voluntariness of appellant’s confession. I have some difficulty, however, with the majority’s dismissal of appellant’s contention that his confession should have been excluded because it was obtained in violation of ¿is right to counsel. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). While I agree that this point would not justify reversal on the present record, facts developed in the course of a new trial might well compel the exclusion of this confession on Escobedo, or perhaps Mallory, grounds. The present record does not provide an adequate basis to conclude with confidence that appellant was not under arrest at the time of his interrogation;1 and the trial court did not sufficiently explore the question of whether appellant’s experience as a police officer rendered advice of counsel unnecessary.
If a fully developed record reveals that appellant was under arrest at the time of his interrogation and that his experience as a police officer did not ren*756der legal advice unnecessary, his confession should be excluded. Because the present record is in these respects unsatisfactory, I do not think we should prejudge these matters. The majority opinion should not be read as precluding appellant from filling out the record on these points in a new trial.
My views on the right to counsel in police interrogation will be set out more fully in the near future, in a case now pending in this court. In my opinion the facts noted by the majority that no indictment had been returned and no charge had been brought against appellant at the time of the confession are irrelevant. Escobedo v. Illinois, supra, and see United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3d Cir., May 20, 1965).
. See Scarbeck v. United States. 115 U.S.App.D.C. 135, 317 F.2d 546 (1962), cert. denied, 374 U.S. 856, 83 S.Ct. 1897, 10 L.Ed.2d 1077 (1963); Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963), cert. denied, 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982 (1964).