(dissenting):
Whether or not there was error in the instruction by reason of our decision in Naples v. United States, 120 U.S.App. D.C. 123, 131, 344 F.2d 508, 516, must await the en banc hearing referred to by the court. I accordingly limit my opinion to consideration of the confessions. I find reversible error in this connection. There are, in my view, three confessions involved in this case — appellant’s oral statement that he “grabbed the woman,” made before formal arrest, his oral statement after the formal arrest, detailing the account of the crime, and his oral statement made the next day to his mother in the presence of a policeman. The first two confessions were made during *1216secret in-custody interrogation, and, according to the testimony of Detective Alexander, who assisted in this, it was not until appellant had twice confessed that he was told of his right to counsel, whereupon he refused to sign the prepared written statement, saying “he’d sooner talk to a lawyer.” 1 Under Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694, these two confessions are compelled self-incriminations, obtained in violation of the Fifth Amendment and inadmissible, unless Miranda does not apply because this case was tried prior to that decision. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 decided one week after Miranda, the Court held that the principles of Miranda need be given only prospective effect; but the Court added:
We recognize that certain state courts have perceived the implications of Escobedo [v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977] and have therefore anticipated our holding in Miranda. Of course, States are still entirely free to effectuate under their own law stricter standards than those we have laid down and to apply those standards in a broader range of cases than is required by this decision.
384 U.S. at 733, 86 S.Ct. at 1781.
Miranda and Escobedo were state cases, and the decision of the Court not to require their application to cases previously tried was influenced by considerations affecting the administration of criminal justice in the States, with slight pertinence in this jurisdiction. LaShine v. United States, 126 U.S.App.D.C. 71, 374 F.2d 285, 291 (dissenting opinion). See Johnson, supra, 384 U.S. at 731, 86 S.Ct. at 1780, where the Court pointed out, “Prior to Escobedo and Miranda, few States were under any enforced compulsion on account of local law to grant requests for the assistance of counsel or to advise accused persons of their privilege against self-incrimination.”
Moreover, I can fairly say that the implications of Escobedo, insofar as here relevant, were anticipated in my dissenting opinion in Jackson v. United States, 119 U.S.App.D.C. 100, 105, 337 F.2d 136, 141, cert. denied, 380 U.S. 935, 85 S.Ct. 944, 13 L.Ed.2d 822. For this reason also, as well as for reasons elaborated in my dissent in LaShine v. United States, supra, I think I am free, notwithstanding Johnson v. State of New Jersey, to say that Miranda should be applied to this federal case which was pending on this direct appeal when Miranda was decided.
It seems to me, moreover, that the detailed confession' — and perhaps the initial one “ [I] grabbed the woman,” though in view of the court’s position I need not decide that — is inadmissible under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Wade brings the Sixth Amendment right to the assistance of counsel to another kind of pre-trial confrontation, a line-up identification. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, decided the same day, however, this constitutional ruling was held not to be retroactive. Therefore, were a problem of line-up identification involved in the present case, Wade would not govern it. But we are not concerned with such an identification. We are concerned with confessions obtained during in-custody interrogation, after Escobedo, from a twenty-one year old man having a very abbreviated education, an I.Q. making him unacceptable for military service, and no prior criminal record or experience with the police. During the interrogation he was under “strong suspicion” — the officer’s words — of having committed a terrible crime. He was without counsel, judge or jury. He had confessed fully when he was advised of the right to counsel, altogether ineffectively in the circumstances. The case against him in all essentials was complet*1217ed by the pre-trial confessions obtained at the police station. The public trial which later occurred, following his plea of not guilty, was little more than a formality. Peculiarly applicable is the following from the opinion in Wade:
[T]oday’s law enforcement machinery involves critical confrontations of the accused by the prosecution at pretrial proceedings where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.
The Court proceeded:
In recognition of these realities of modern criminal prosecution, our cases have construed the Sixth Amendment guarantee to apply to “critical” stages of the proceedings. The guarantee reads: “In all criminal prosecutions, the accused shall enjoy the right * * to have the Assistance of Counsel for his defence.” The plain wording of this guarantee thus encompasses counsel’s assistance whenever necessary to assure a meaningful “defence.”
Wade, supra, 388 U.S. at 224-225, 87 S.Ct. at 1931. (Italics in Court’s opinion.)
It is obvious that the secret in-custody interrogation, aided by the address book pressed upon the accused after he denied complicity in the crime,2 was a critical stage of the proceedings. It was, in fact, the decisive stage. Even assuming the inapplicability of Miranda, the applicability of Wade is not therefore precluded. Miranda rests upon the Fifth Amendment privilege. Wade rests upon a more inclusive principle, “established as long ago as Powell v. State of Alabama,” 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, and,
It is central to that principle that in addition to counsel’s presence at trial,4 the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsells absence might derogate the accused’s right to a fair trial.5 The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment — the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution. Cf. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.
In sum, the principle of Powell v. Alabama and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself. It calls upon us to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.
Wade, supra, at 226-227, 87 S.Ct. at 1932 (footnotes omitted).
The extension by Wade of the Sixth Amendment right to counsel to pre-trial identification, with qualifications not here material, was a new application of the right, though one Court of Appeals recently had made the same ruling. Wade v. United States, 358 F.2d 557 (5th Cir.). But the principle was not new, as is demonstrated by the above quotations from the Court’s opinion. Nonretroactivity was based on the newness of the application of the principle, not on an enunciation of a new constitutional principle. The basis for the non-retroac*1218tive ruling, therefore, does not exist in our case of confessions obtained by secret in-custody interrogation of an accused without counsel. This critical stage of the criminal proceedings requires under Wade the assistance of counsel, as guaranteed by the Sixth Amendment, to protect the fairness of the trial, not, as in Miranda, to protect alone the privilege of the Fifth Amendment, nor, as in Escobedo, shorn of its implications, to enable the accused to have access to his counsel as requested. Should Johnson v. State of New Jersey nevertheless preclude the application of Wade to this “confession” case tried before Miranda but subsequent to Powell v. State of Alabama and Escobedo? In view of the “fair trial” principle in relation to the right to counsel exposited in Wade, and the pertinence of that principle to “confession” cases as distinguished from those of pre-trial identification, do we not have here an entirely fresh question of retroactivity, not decided by Johnson v. State of New Jersey? Whatever the answer to these questions, Wade fortifies me in my view that, within the latitude allowed by Johnson v. State of New Jersey, Miranda itself should be applied in this federal jurisdiction to this case. See, again, my dissents in Jackson and LaShine, both supra.
I would also reverse and remand for a new trial on the basis of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479, for the admission of the detailed confession, if error, is reversible error. Not only was it introduced before the jury, it led to the search and consequent seizure of damaging evidence used at trial. And even if the initial confession, “[I] grabbed the woman on the street,” was admissible under Mallory as made prior to arrest, it is reversible error, as I understand is conceded, to have admitted the detailed confession if it were inadmissible. See Cunningham v. United States, 119 U.S.App.D.C. 262, 340 F.2d 787; Watson v. United States, 98 U.S.App.D.C. 221, 234 F.2d 42. I think it was inadmissible under Mallory, for reasons now to be stated.
There is no dispute that when first questioned about the crime the officers regarded Fuller as a suspect. The investigation had focused upon him. At the pre-trial hearing on the motion to suppress, Officer Boyd, who led in the questioning, was asked, “But you had a good idea it was the defendant, didn’t you ?” He responded, “ * * * we had a strong suspicion since his address book was found on the scene that it had been him, yes, sir.”3 There is no dispute, also, that when first questioned the suspect denied complicity. “Now, when you walked in that room, he denied any implication, didn’t he, at first when you first talked to him? A. [Officer Boyd] His first remark to that respect was that he didn’t know what we were talking about.” In Officer Boyd’s testimony before the jury this appears:
We all walked over to a table and took seats. Detective Alexander sat across the table from me and Fuller sat on the end of the table.
Q. And what did you say to the Defendant Fuller?
A. We told him that we wanted to talk to him about a woman being slain in the District.
He stated he didn’t know anything about it. We showed him a red address book, asked—
After further questioning the officer testified Fuller stated “that yes, he was the man who — that he had grabbed the woman on the street.” The officer continued :
I then told him he was going to be held and he was charged with the crime, that anything that he told us would be used against him; asked him if he wanted to tell us about the crime in detail. He started at that time and went through it step by step, and this *1219conversation took from 15 to 20 minutes.
Some twenty hours later appellant was taken before a magistrate.
The court puts aside Mallory by holding that once the confession was begun— “[I] grabbed the woman on the street” —the police were not required to interrupt it and comply with Rule 5(a),4 citing Walton v. United States, 334 F.2d 343 (10th Cir.), cert. denied, 379 U.S. 991, 85 S.Ct. 706, 13 L.Ed.2d 612, which in turn cites United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140; and our cases Perry v. United States, 102 U.S.App.D.C. 315, 253 F.2d 337, cert. denied, 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed. 2d 816 and Gardiner v. United States, 116 U.S.App.D.C. 270, 323 F.2d 275, cert. denied, 375 U.S. 976, 84 S.Ct. 495, 11 L.Ed.2d 421. In Walton it does not appear when the arrest first occurred. Moreover, there was never a denial by Walton of complicity.
None of the above cases presents the problem we have here. All may be characterized as “threshold confession” cases. In distinguishing them I rely upon the principle that the Mallory rule has greater efficacy than a bare holding that the arrestee must be taken before a magistrate without unnecessary delay. In administering the rule the courts are required to protect it from being rendered ineffective by evasions which defeat its purpose. Spriggs v. United States, 118 U.S.App.D.C. 248, 335 F.2d 283.
When the initial confession was made the continuity of the confessions was carefully broken by the officers themselves by changing the status of the suspect to that of an arrested accused. Their testimony shows they were at pains to stress the absence of an arrest before the initial confession. They stressed that they interrupted the accused after this initial confession, charged him, and warned him. This course of conduct no doubt was due to the desire of the officers to emphasize that when they first began to question the accused, Mallory did not apply because they had made no arrest. While the time was short between the formal arrest5 and the further questioning which elicited the detailed confession, if the confession is not brought within Mallory, notwithstanding the argument there was no “unnecessary delay” after the arrest, Mallory is evaded. The prosecution cannot, consistently with Mallory, obtain a confession by secret in-custody interrogation prior to arrest, then immediately arrest the suspect, resume the secret interrogation, elicit then another and more detailed confession, and use the no “unnecessary delay” feature of Rule 5(a) to render this later confession admissible on the theory of continuity in the making of the confessions. If a continuity theory is to be relied upon, then the whole period of questioning, including that before the arrest, must be considered. In passing upon the admissibility of self-incriminating statements obtained by secret police interrogation, when except for the formalities the trial occurs, it is unacceptable to me to consider Mallory by departmentalizing the period of the secret interrogation, breaking it by an arrest for the purpose only of calculating “unnecessary delay” after the arrest, but not breaking it at all in determining that the confession was continuous.6 If the con*1220fession is to be considered as uninterrupted then the issue of its admissibility-must take account of the period of interrogation before the confession began.7
Moreover, I find the continuity theory applied here inconsistent with this court’s recent decision in Naples v. United States, 127 U.S.App.D.C. 249, 382 F.2d 465. It is clear that the police had abundant probable cause when they admittedly arrested appellant and as stated in Naples, 382 F.2d at 471,
It is the function of the police to investigate crime, to arrest when there is probable cause to do so, and to put the prisoner in the channels leading to his prosecution. It is not the function of the police to convict. And it is the purpose of Rule 5(a) to draw a line between these functions.
Nevertheless, the officers in this case renewed the interrogation, asking the arrestee “if he wanted to tell us about the crime in detail.” The delay created thereby was unnecessary in the full factual setting of this interrogation, and as I read the record the delay was for the ’ purpose of further insuring a conviction. As emphasized in Naples, 382 F.2d at 474, “the purpose of the interrogation, whether it be long or short, can never be anything but critical. That purpose is * * * the crucial fact in measuring the reasonableness of delay in presentment after arrest.” 8
The court states that the “maximum of protection” furnished by our protective rules is not so absolutely rigid as to interfere with the fair needs of society in police administration. But I think such rules, fair to society, do not permit the admission in evidence at trial of the detailed oral confession in this case. The court clothes that confession with admissibility within the rules on a theory that self-incrimination brought about by secret in-custody interrogation by police of a suspect after his arrest may avoid confusion and misunderstanding possibly attributable to something of an incriminating nature previously elicited from the arrestee. I urge that a desire for clarification is not a criterion by which to judge the admissibility at a subsequent trial of a confession obtained by such interrogation of an arrestee without counsel or effective waiver of the right to counsel. The imposing structure of decisions — Mallory, Escobedo, Miranda, Wade — does not remotely suggest the acceptability of such a criterion which, indeed, would undermine the rules delineated by those decisions. While Naples emphasizes the relative importance of purpose, compared with the time involved in the interrogation, an innocent purpose —clarification—cannot render admissible a confession which factors other than purpose would render inadmissible.
The court places upon the police the burden of proving the innocence of the purpose. Yet the court holds the confession properly admitted at this trial although neither of the two judges who passed upon its admissibility followed the standard of proof now first announced. One judge considered only the quantum of time involved in “unnecessary delay” and the concern of the other judge was whether Fuller had been arrested when he was brought to the police station.9
*1221*****«•
Mallory itself, years before Escobedo, Miranda and Wade, opposes, it seems to me, the present approach of the court:
The arrested person may, of course, be “booked” by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest .and ultimately his guilt.
In every case where the police resort to interrogation of an arrested person and secure a confession, they may well claim, and quite sincerely, that they were merely trying to check on information given by him. Against such a claim and the evil potentialities of the practice for which it is urged stands Rule 5(a) as a barrier.
354 U.S. at 455-456, 77 S.Ct. at 1359-1360.
As to whether or not the confessions were voluntary suffice it to say that under Miranda the confessions were not voluntary. They were compelled self-incriminations. The holding of our court that Miranda does not require their exclusion as involuntary because of the non-retroactive ruling in Johnson v. State of New Jersey, does not mean that the confessions were voluntary.
As to the search and seizure, the search warrant rests upon the detailed confession. Were that confession in my opinion admissible I would agree, for the reasons set forth in Part IV of the court’s opinion, that the admission in evidence of the articles seized did not constitute plain error affecting substantial rights.'
I respectfully dissent.
. After this refusal the officers were able to obtain a written statement affirming the truth of appellant’s oral confession. This was suppressed at the pre-trial hearing of appellant’s motion to suppress for violation of the Mallory rule.
. “He stated he didn’t know anything about it. We showed him a red address book, asked — ”; again, “His first remark * * * was that he didn’t know what we were talking about.”
. It is of no significance that in response to an immediately following question by the court he said he did not at that time have enough probable cause to arrest defendant.
. I assume without deciding that the court properly assimilates Rule 5(a) to Rule 40, the latter here applying.
. The opinion of the court states the District of Columbia detectives were aware that in Maryland it was necessary to call on the Maryland police to make the arrest; yet the opinion accepts the view that the detectives made the arrest, when appellant said he “grabbed the woman.”
. As may be seen from the analysis of the facts bearing upon the confessions the ultimate question of their admissibility draws upon the principles enunciated in Mallory, Escobedo, Miranda and Wade. It should not be necessary in determining the issue of admissibility to consider separately the application of each of these cases to separate phases of a continuous course of conduct. The totality of their impact should be the basis of decision. It seems to me that the Supreme *1220Court lias concluded in these cases considered together that when an accused decides to stand trial rather than plead guilty he is not to be convicted on the basis of a previous non-public trial by the police, without counsel, judge or jury.
. It is no injustice to the defectives for me to say that it is unrealistic to accept the view that appellant in being questioned by them was merely “asked to explain away items casting suspicion when he uttered the words that involved him with the deceased and led to his arrest.” I think he was questioned to obtain a confession.
. The purpose of the officers in this case appears from such facts as the renewal of the interrogation after arrest, the attempt to have appellant sign a written version of his detailed oral confession, and, upon Fuller’s refusal to do so, the securing of a written statement affirming the truth of the oral confession.
. My premise is not, as the court suggests, that Fuller was taken to the sta*1221tion against his will. I do conclude, however. that he was taken there, as in fact eventuated, to obtain a confession.