(concurring in part and dissenting in part):
I agree that the identification testimony was properly admitted under the principles recently set forth by this court in Clemons v. United States, 138 U.S. App.D.C. 27, 408 F.2d 1230 (Dec. 6, 1968) en banc, but I do not agree with those parts of the majority opinion relating to the inadmissibility of statements which Appellant made to the police.
(D
The sole issue separating me from the majority is whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) required Appellant’s statements to be excluded from the evidence. In answering this question affirmatively the majority leans heavily on Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), the standing of which has been drawn into serious doubt by recent Congressional enactments.1 The majority’s cognizance2 of the message that this series of legislation bears for Mallory and their apparent agreement with the lower court’s finding that Mallory was not violated here,3 belies Mallory’s true significance to the issues at hand. Moreover it is unsound to treat Mallory and Miranda as closely related; the former is a quanti-tive test of time delay, the latter is a qualitative test of the circumstances of the interrogation.4
Of more concern is the majority’s expansion of Miranda into a per se exclusionary rule, thereby transcending the Fifth Amendment requirement that only those statements elicited through compulsion be excluded from evidence. Indeed, Miranda itself cannot be read as going beyond the language of the Fifth Amendment.5 Any lingering doubts on *1172this score were resolved by a recent exposition on the subject by the Supreme Court. In discussing the scope of Miranda the Court pertinently noted in Hoffa v. United States, 385 U.S. 293, 303-04, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966), that, “since at least as long ago as 1807, when Chief Justice Marshall first gave attention to the matter in the trial of Aaron Burr, all have agreed that a necessary element of compulsory self-incrimination is some kind of compulsion.” (Emphasis added) (footnote omitted)
In Miranda the Supreme Court held that certain warnings must be given to a suspect before “custodial interrogation” could be conducted. The underlying assumption was that these warnings were necessary to prevent the subversion of trial rights at unsupervised pretrial confrontations between an accused and the State. Whereas pre-Miranda eases had alternately invoked the Fifth and Sixth Amendments 6 Miranda made eléar that the Fifth Amendment was the central value at stake. The articulation of a stringent waiver requirement was merely a device through which the Court sought to ensure that Fifth Amendment guarantees were not unduly impaired at pretrial interrogations. The guidelines set forth in Miranda were means servicing constitutionally prescribed ends; as artifices of implementation they are subordinate and only incidental to the rights they were designed to secure. By postulating a waiver concept .the Court did not intend to eclipse the threshold inquiries into the presence of compulsion and the quality of police conduct attending the making of inculpatory statements. This is the background of controlling legal principles on which this case ought to be decided. I do not agree that they give rise to a plausible claim of improper police tactics amounting to coercion requiring reversal or remand.
(2)
Frazier was presented to Officer Kea-hon at headquarters at 5:20 P. M. Their meeting was prefaced by Keahon’s reading the Miranda warnings to him from PD-47 (a form card which all police officers carry and which had previously been read to Frazier by Officer Sandy upon his arrest). He repeated these warnings to Frazier when he read PD-54, a form which advised him of his Fifth and Sixth Amendment rights 7 and contained a statement of an intention to waive his right to remain silent and his right to counsel. Thereafter, at 5:30 P. M., Frazier himself read this form, orally stated that he understood its meaning,8 and signed the waiver.
Officer Keahon testified that he then read the arrest warrant relating to the robbery of Mike’s Carry Out Shop and *1173started to question Frazier on that robbery. But, after Keahon had spoken but a few words, Frazier blurted out his desire to clear a third person who had been arrested for the robbery and shooting at a High’s Store. Within minutes Frazier, by way of exculpating others, admitted to his involvement in the robberies at the High’s Store, at Mike’s Carry Out Shop, at the Dodge Market, and at the Meridian Market — the last robbery being the one for which he was convicted in this case. During this discourse Frazier objected to Officer Kea-hon’s taking written notes. Keahon testified: “At the beginning of his admission, I started to write notes, and he stopped me and said: ‘Don’t write anything down. I will tell you about this but I don’t want you to write anything down.’ ” [Tr. 72.]
The admission of the Meridian Market robbery was unsolicited and appears to have been volunteered. Officer Keahon testified that he did not ask Frazier whether he participated in the Meridian Market robbery and that the only questions asked in relation to that robbery during the initial confession were for the purpose of corroborating the identification of the market. Thus it seems that the confession was totally spontaneous and voluntary.
Following the statements Frazier was retained in the robbery squad office for nearly two hours, where he was quizzed in detail about the four robberies, reiterated his confessions, was displayed to several witnesses, and reenacted several of the robberies. Thereafter he was placed in a cell for the night because a Commissioner was not available and was presented the following morning.
(3)
The record demonstrates entirely reasonable police activity satisfying the deterrent purposes underlying the Miranda rule. There is not a scintilla of evidence suggesting that what had been forthcoming from Appellant’s lips was the result of unreasonable or improper police conduct. The fact that Appellant may not have desired the statement to be transcribed does not compel the conclusion that he was being subjected to the kind of police activity found unconscionable in Miranda. The most that can be said from Appellant’s statements is that he may have unintentionally incriminated himself. The Fifth Amendment, however, serves neither to discourage nor to prohibit self-incrimination, it militates only against compulsory self-incrimination. The record does not even remotely suggest that Appellant was being compelled to incriminate himself, no less compelled to utter any words at all. There is not the slightest indication that Appellant was unaware of his rights or labored under a misbelief that his failure to speak could be used against him as evidence of guilt. There is no intimation that the environment would have neither permitted nor honored a non-waiver.
In fact, no issue is even purportedly raised as to Appellant’s willingness to make the statements that were eventually used against him. Indeed, evidence of his volition may be inferred from his voluntary participation later that evening in a series of identification procedures. In view of the obvious spontaneity surrounding its making, the statement could plainly have been used as a threshold oral confession.9
In this regard it also bears noting that the “plus factors” so frequently contributing to a rejection of a confession are not present in this case. Frazier was repeatedly told of his right to counsel and his right to remain silent; he confessed immediately and without prior denials; he never repudiated his confession and he did not make any allega*1174tions of coercive threats or physical abuses.10
By equating Frazier’s insistence that the police not write notes with a desire not to incriminate himself, the majority engages in sheer speculation of Appellant’s thought processes which places a premium on the capacity of judges to probe Appellant’s mind. This approach bears an unfortunate resemblance to the sophistry engaged in by the courts which labored under the albatross of Betts v. Brady.11 Indeed, the rule requiring courts to peer through kaleidoscopes in search of constitutional violations inevitably deteriorated into measuring the constitutional right in terms of the suspect’s need — and invariably a horribly guilty suspect at that. Although this theory received currency during the era of “special circumstances”, twenty years of inconsistent application which produced no judicially manageable standards eventually persuaded the Supreme Court in Miranda12 to turn to an essentially objective13 mode of analysis.
*1175Since the underlying purpose of Miranda was to curb police improprieties, the use of objective criterion provided courts with a more workable method of evaluating the reasonableness of police conduct. The unhappy theory holding the police accountable for environmental and personality factors unavoidably unique to each suspect and frequently beyond the pale of police perception came to rest in the shadow of an exclusionary rule grounded in deterrence. Indeed, the Supreme Court in Johnson v. New Jersey14 confirmed the essentially deterrent underpinnings of Miranda and thereby placed its imprimatur on an interpretation focusing on the reasonableness of police conduct instead of the vagaries of human nature.
Miranda did not set down a per se proscription against pretrial questioning; it was addressed primarily to abusive and unwarranted tactics designed to subvert constitutional rights. Even if Frazier unwittingly incriminated himself, the police should not be held accountable in the absence of some evidence of deceit or misconduct on their part. Here, of course, there is no such evidence. Indeed, the majority clothes Appellant’s remarks with a significance bearing no relationship to the record or to ordinary human experience. Throughout the majority opinion is circumspect avoidance of any discussion relating to coercion or improper police conduct. To the extent Appellant’s utterances may be construed as indicating a misunderstanding of the consequences of his making incriminatory statements the majority has failed to supply a nexus between this and the presence of improper police conduct amounting to coercion.
I have difficulty perceiving the basis for the majority’s argument that it was unreasonable for the police to proceed with questions after Frazier made an apparently valid waiver. Although this waiver was not irrevocable,15 there is nothing to show that Frazier indicated “in any manner, at any time prior to or during questioning, that he wish[ed] to remain silent” or that he wanted an attorney. Miranda v. Arizona, supra at 473-474, 86 S.Ct. at 1627.
Having complied with the postulates of Miranda, it was the absolute duty of the police as law enforcement agents to investigate promptly the circumstances of the crime and the suspect’s possible participation. I am somewhat at a loss to know what more the Government could or should have done to comply with the directives of Miranda. Even if Frazier did not understand the privilege against self-incrimination, the majority’s approach is unrealistic and goes beyond the mandates of any decided cases. It seemingly expects the police to detect indications of misunderstanding and lack of knowledge which are so subtle that *1176not even judges would recognize the problem.
The seeming anxiety of judges to protect every accused person from every consequence of his voluntary utterances is giving rise to myriad rules, sub-rules, variations and exceptions which even the most alert and sophisticated lawyers and judges are taxed to follow. Each time judges add nuances to these “rules” we make it less likely that any police officer will be able to follow the guidelines we lay down. We are approaching the predicament of the centipede on the flypaper — each time one leg is placed to give support for relief of a leg already “stuck”, another becomes captive and soon all are securely immobilized. Like the hapless centipede on the flypaper, our efforts to extricate ourselves from this self-imposed dilemma will, if we keep it up, soon have all of us immobilized. We are well on our way to forbidding any utterance of an accused to be used against him unless it is made in open court. Guilt or innocence becomes irrelevant in the criminal trial as we flounder in a morass of artificial rules poorly conceived and often impossible of application.
The record raises the possibility that the only statements put into evidence were those made prior in time to Appellant’s alleged equivocations.16 Police who act reasonably on facts presently in their possession should not be ascribed a taint by virtue of subsequent utterances of a suspect which might be said to exhibit symptoms forbidden by Miranda. The use of such a relating-back theory does violence to Miranda17 and brings us beyond the point of diminishing return in enforcing an exclusionary rule grounded in deterrence of proscribed police conduct.18 The Constitution does not prohibit police interrogation of suspects who have waived the right to counsel and the majority opinion will not and should not impede interrogation after a waiver. What the holding will do is confuse and baffle police — as it will many judges.
. Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197 (1968); District of Columbia Crime Bill, 81 Stat. 734 (1967).
. See majority opinion at notes 7-9 and accompanying text. Tbe majority mentions only tbe District of Columbia Bill, but tbe Omnibus Act is also relevant. Its Title II substantially incorporates Title III of the District of Columbia Crime Bill. See generally, Note, Title II of the Omnibus Crime Control Act: A Study in Constitutional Conflict, 57 Geo.L.J. 438 (1968). And see Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964), dealing with the question of legislative retroactivity.
. In Mallory the exclusion of confessions rested on supervisory powers, not on the Constitution. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); see McNabb v. United States, 318 U.S. 332, 340, 63 S.Ct. 608, 87 L.Ed. 819 (1943).
. Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio L.J. 449, 451 (1961). In any event, Mallory has never been interpreted as requiring the police to terminate an interview for purposes of arraignment when a suspect wants to make a confession of guilt. In Fuller v. United States, 132 U.S.App.D.C. 264, 273 & n. 13, 407 F.2d 1199, 1208 & n. 13 (1967), reheard en, banc on other issues Fuller v. United States, No. 19,532 (D.C. Cir., decided September 26, 1968), Judge Leventhal noted: “Rule 5(a) did not require that the detectives break off the interview and try to arraign appellant rather than allow him to make an immediate elaboration of the mere assertion of guilt”. (Citing Walton v. United States, 334 F.2d 343, 347 (10th Cir. 1964), cert. denied sub nom. Comley v. United States, 379 U.S. 991, 85 S.Ct. 706, 13 L.Ed.2d 612 (1965).)
. The Miranda Court expressly disclaimed any intention to traverse beyond the strictures of the Constitution. At the outset of its opinion the Court stated, “We start here * * * with the premise that our holding is not an innovation *1172in our jurisprudence, but is an application of principles long recognized and applied in other settings”. 384 U.S. at 442, 86 S.Ct. at 1611.
. Compare Escobedo v. Illinois, 378 U.S. 478, 491, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), with Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944) and Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936).
. The warning reads as follows:
You are under arrest. Before we ask you any questions, you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advise [sic] before we question you and to have him with you during questioning. If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer, you will still have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.
. Officer Keahon testified as follows: “He [Frazier] stated that he did understand the form and that he did not want a lawyer. * * * He stated ‘If I need a lawyer, I will get one in the morning.’ ” [Tr. 63-64.]
. E. g., United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944); Bailey v. United States, 117 U.S.App.D.C. 241, 328 F.2d 542 (1964) (Miller, J.); Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572 (1962) (Edgerton, J.); Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (1957) (Burger, J.).
. Compare, e. g., Greenwell v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962 (1984) (allegations of coercion); Spriggs v. United States, 118 U.S.App. D.C. 248, 335 F.2d 283 (1963) (prior denials; repudiation of the confession).
. 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), in which the “special circumstances” doctrine was evolved to determine the necessity for counsel in non-capital offenses.
. By the time of Miranda, Betts had already been overruled by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), holding the right to counsel universally applicable at trial in felony cases without regard to “special circumstances”. In Cicenia v. Lagay, 357 U.S. 504, 78 S.Ct. 1297, 2 L.Ed.2d 1523 (1958), and Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958), the Betts analysis had been directly transposed on the determination of the admissibility of a confession. Both of these cases were distinguished and partially overruled in Escobedo v. Illinois, 378 U.S. 478, 491-492, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and were completely overruled in Miranda, supra at 479 n. 8, 86 S.Ct. 1602, 16 L.Ed.2d 694. Of special interest is the discussion and rejection in Miranda of the “special circumstances” into which the rule of Betts necessitated an inquiry. Id. at 468-469 & n. 38, 86 S.Ct. 1602, 16 L.Ed. 2d 694.
. Analogously, in the arrest area a suspect’s testimony of his understanding of the events
would not be decisive but would be material. Compare United States v. MeKethan, 247 F.Supp. 324, 328-329 (D.D.C.1965), aff’d by order (D.C. Cir.No. 20059, 1966), where Judge Youngdahl states “the test must be not what the defendant himself * * * thought, but what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes, * * * a reasonable man, interpreting these words [of the detective] and the acts accompanying them * * McKethan has recently been cited with approval in Hicks v. United States, 127 U.S.App. D.C. 209, 382 F.2d 158 (July 7, 1967).
Fuller v. United States, 132 U.S.App. D.C. 264, 273 n. 11, 407 F.2d 1199, 1208 n. 11 (1967) (Leventhal, J.), reheard en bane on other issues Fuller v. United States, No. 19,532 (D.C.Cir., decided September 26, 1968).
As Judge Bazelon’s dissent in Hall v. United States, (D.C.Cir., decided February 24, 1969) indicates, he too would subscribe to “reasonableness” of police conduct as the touchstone of exclusionary rules. Judge Bazelon said there, echoing a multitude of judicial holdings
It is not searches and seizures as such which the Fourth Amendment enjoins, but only “unreasonable searches and seizures,” and the reasonableness of police conduct under the Fourth Amendment is ordinarily gauged by what the police reasonably and in good faith believed to be the facts at the time of their action. Thus, an arrest made on probable cause is not invalidated because the police were in fact mistaken in their good faith reasonable belief. * * *
I fail to see how admission of the fruits of such police conduct could sully the integrity of the judicial process. Here was no shocking affront to the dignity of a citizen, cf. Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952), no police “contempt for law,” no “flagrant disregard” of prescribed procedures, no “willful disobedience of (the) * * * Constitution. * * * ” (slip op. at 6, 9)
*1175Although the Hall case involved the Fourth Amendment everything said in the dissent relates equally to the exclusion of reliable evidence under the Fifth Amendment; see Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886); where the Court noted that “the fourth and fifth amendments run almost into each other.” Compare Note, Consent Searches: A Reappraisal After Miranda v. Arizona, 67 Colum.L. Rev. 130 (1967).
Just as reasonableness has been the guidepost for protecting privacy, it also serves as the basis for determining the existence of compulsion. In assessing the legality of an arrest the question is framed in terms of whether the police officer had probable cause to believe a crime had been committed; similarly, in determining the admissibility of a confession, the question is whether there was sufficient reason for the police to believe that the suspect had consented to being questioned. In both instances the judicially declared objective of the rules is to prevent the police from reaping the benefit of official misconduct. Here Appellant is unable even to allege any police misconduct, hence the underlying predicate of the exclusionary rule is totally absent. In such circumstances there can be no justification for suppressing the evidence.
. 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed. 2d 882 (1966), holding Miranda not retroactive.
. Miranda v. Arizona, supra at 444-445, 86 S.Ct. 1602, 16 L.Ed.2d 694.
. Although the majority argues that the record unambiguously demonstrates the contrary, see note 30 of majority opinion, it is unnecessary to resolve their speculation since the precise moment of these equivocations is not crucial either to the majority’s or to my theory of the case. The majority neither claims nor are they able to demonstrate how the precise moment of equivocal utterance is relevant for determining the breadth of Appellant’s understanding of his rights. Similarly, since the police would have been acting well within the bounds of reason by questioning the suspect after he had equivocated, a fortiori it would have been proper for them to question him before. That the moment of equivocal utterance is totally unrelated to determining the reasonableness of police conduct is further indicated by the majority’s careful abstention from any discussion of the one issue on which this case turns.
. Cf., e. g., cases cited in note 9, supra. In these cases the Court held that “unnecessary delay” occurring after a confession does not retroactively infect the confession. See also Bayer v. United States, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947).
. Cf. Thornton v. United States, 125 U.S. App.D.C. 114, 119-120, 368 F.2d 822, 827-828 (1966), holding that an unconstitutional seizure is not a proper ground for collateral attack; Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 389-390 (1964). See also the dissenting opinion of Judge Bazelon in Hall v. United States, (D.C. Cir., decided February 24, 1969) where he states: “Even if a search that was reasonable when made can be retroactively invalidated under the Fourth Amendment, such a search does not taint either its fruits, or, through them, the judicial process.” (Slip op. at p. 9) (emphasis added.)