(concurring).
Although I generally agree with Chief Judge Lumbard’s opinion, the issues here decided have been so much debated, and many judges and commentators seem to me to have read into Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964), so much more than that decision will fairly bear, that a brief statement of my position seems warranted.
*130Cone’s case does not come close to those in which inculpatory admissions have been held “involuntary” and hence inadmissible on general due process grounds. See Culombe v. State of Connecticut, 367 U.S. 568, 81 S.Ct. 1860 (1960). Hence the only constitutional questions are whether his interrogation violated the Sixth Amendment’s guarantee of the Assistance of Counsel or the Fifth’s against self-incrimination.
The Sixth Amendment commands that “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” It was altogether consistent with the language and the known purpose of this clause1 to hold it to be applicable at a preliminary hearing before a magistrate, as the Supreme Court did in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), and White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). Such a preliminary hearing is part of a “criminal prosecution,” the suspect has become an “accused,” and he is beginning his “defense.” Equally clearly, an indictment or information marks a stage when a “criminal prosecution” has begun and a suspect has become an “accused”; such surprise as there was in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), lay in its holding that the Assistance of Counsel clause applied to questioning by a confederate acting at the government’s behest, as it clearly would have to questioning by the prosecutor himself.
It would indeed make a mockery of these decisions if the police or the prosecutor could postpone the accrual of the precious right to the Assistance of Counsel by unduly delaying the initiation of the “criminal prosecution.” This is the root principle of Escobedo v. State of Illinois, supra, as exemplified by the key statements that under the facts “Petitioner had become the accused * * * ” 378 U.S. at 485, 84 S.Ct. at 1762, and “Petitioner had, for all practical purposes, already been charged with murder,” 378 U.S. at 486, 74 S.Ct. at 1762.
What is not always easy is to find when that “critical” stage, 378 U.S. at 486, 84 S.Ct. at 1762, has been reached. Police interrogation does not fall into two neat piles, one of which can be readily labeled “investigatory” and the other “accusatory.” Although the very fact of arrest does show that in a sense the investigation “has begun to focus on a particular suspect,” 378 U.S. at 490, 84 S.Ct. at 1765,1 find no sufficient evidence that the Supreme Court has decided that at this early stage, when those authorized to make “accusations” often have not even been informed, every person arrested has already become an “accused,” entitled to the full protection of the Assistance of Counsel clause; and the consequences of such a ruling would be so serious that an inferior court ought not to anticipate. Any such view would be wholly inconsistent with the Court’s statement, 378 U.S. at 492, 84 S.Ct. at 1766, “Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime,’ * * * by gathering information from witnesses and by other ‘proper investigative efforts.’ Haynes v. Washington, 373 U.S. 503, 519 [83 S.Ct. 1336, 1346, 10 L.Ed.2d 513].” Police questioning truly designed to find out about the crime and its ramifications does not cease to be “investigatory” because the police hope or even expect that the subject of the interrogation will inculpate himself. Such questioning is in sharp contrast to the hammering for the sole purpose of eliciting a confession of a crime already “solved” that is so nearly equivalent to extracting a plea of guilty at an arraignment as to fall within the “penumbra,” see Griswold v. State of Connecticut, 381 U.S. 479, 483-484, 85 S.Ct. 1678, 14 L.Ed. 2d 510 (1964), of the Assistance of Counsel clause. Since the portion of the Escobedo decision dealing with the Sixth Amendment is readily and fairly distinguishable on this ground, we are not obliged to consider the much mooted ques*131tion of the extent to which it also rested on the presence of Escobedo’s lawyer in the police station and the thwarting of Escobedo’s efforts to see him.
Rather similar considerations apply with respect to the argument based on the Fifth Amendment’s guarantee against self-incrimination. If one were to look only to the words, “nor shall be compelled in any criminal case to be a witness against himself,” there would be strong reason to believe that the Amendment has no application to interrogation by officers having no legal power to compel a person to speak.2 But police or prosecutors ought not to be allowed to circumvent the Amendment through compelling, by physical or moral pressure, what a magistrate or a grand jury could not do by command. I take it that the Supreme Court so decided in Escobedo, 378 U.S. at 488, 84 S.Ct. at 1763, although without the discussion one would expect for an issue of such importance. On the other hand, the Amendment does speak in terms of compulsion; and the Court has surely not yet held, as feared by Mr. Justice Jackson in his dissent in Ashcraft v. Tennessee, 322 U.S. 143, 161, 64 S.Ct. 921, 88 L.Ed. 1192 (1944), that the mere facts of arrest, or even of detention in a police station, demonstrate the existence of compulsion. See Culombe v. State of Connecticut, 367 U.S. 568, 576, 578-580, 588-592, 81 S.Ct. 1860 (1961) (opinion of Mr. Justice Frankfurter).
Although difficult border-line cases in the application of these constitutional principles will necessarily arise, Cone’s case is about as far from the border as one could be. It is true that when as here a federal appellate court is reviewing a federal conviction, it can insist on a greater degree of protection to the defendant than the Constitution compels. To that end, pursuant to authority delegated by Congress, the Supreme Court has adopted Fed.R.Crim.P. 5, requiring that arrested persons be taken before a commissioner “without unnecessary delay” and has implemented this with the rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), excluding inculpatory statements during interrogation that is unnecessarily prolonged. Whether the Supreme Court may wish to go further and invoke its rule-making power to require that, in the future, federal officers must give warnings to arrested persons and, if so, what, when and how, and with what consequences for failure, is for that Court alone to say.
LUMBARD, Chief Judge, concurs in this opinion.
. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal.L.Rev.929, 943-944 (1965).
. See, for conflicting views, 8 Wigmore, Evidence § 2252, at 328-329 and n. 27; Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 27-30 (1949); Note, The Privilege Against Self-Incrimination: Does It Exist in the Police Station?, 5 Stan.L.Rev. 457 (1953); 1 Morgan, Basic Problems of Evidence 146-148 (1961); Maguire, Evidence of Guilt § 2.03, at 15-16 (1959); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, Magna Carta Essays 25-32 (1965).