(dissenting from affirmance).
I
The objection to the admission in evidence of the confessions of rape should have been sustained in my opinion. The court holds that “the defendant, after receiving valid Miranda warnings, knowingly and voluntarily waived his rights to remain silent and to counsel.” Assuming the waivers referred to, the confession itself is not for that reason voluntary — it is simply not inadmissible for non-compliance with Miranda. Furthermore, the Fifth Amendment privilege against compelled self-incrimination places the responsibility upon the appellate court to determine' independently whether undisputed facts show a violation of this constitutional protection.1 This standard of review is not carried out by the holding with respect to the Miranda waiver above noted.
II
On the issue of voluntariness of the confessions it is preliminarily noted that when a confession has resulted from in-custody interrogation by the police, as here, its admissibility is suspect, in contrast with a confession made in open court by plea of guilty, or perhaps in contrast with a confession due to in-custody interrogation but adhered to rather than being subsequently repudiated.2 This is so because of the importance attached by the Founders to the integrity of human personality represented by the Fifth Amendment privilege, as well as by the inherent coereiveness of such interrogation.3 The suspect character of such confessions is due also to the difficulty a court has in recapturing long after the events the weight of the pressures exerted upon an accused person by in-custody interrogation by several skilled officers to extract an acknowledgment of guilt while he is under their complete domination, without friend, relative, impartial observer or *127counsel. Such a confession is suspect also because unless excluded from evidence the subsequent public trial with counsel before a judge and jury is not in reality a trial of the defendant’s guilt or innocence but is in substance a trial of what occurred in secret at the police interrogation. Yet the Constitution provides :
In all criminal prosecutions, the accused shall enjoy the right to a . public trial, by an impartial jury . . . to be confronted with the witnesses against him and to have the Assistance of Counsel for his defense.
U.S.Const, amend. VI.
The courts must enforce the substance of these provisions and not be satisfied with their shadow. See United States v. Wade, 388 U.S. 218, 224-225 (1967); Miranda, swpra, 384 U.S. at 448, 457, 86 S.Ct. 1602. When a confession obtained in those circumstances which here are undisputed, by secret interrogation of an eighteen-year-old frightened youth, is admitted at his later trial, these constitutional provisions are neglected by the court.
It is no answer to say he waived his right to counsel after being advised of the right. The fact is he did not have counsel and the issue of voluntariness of the confessions must be decided with that in mind. The Supreme Court recognizes that even with a lawyer present coercion may be exercised. Miranda, supra, 384 U.S. at 470, and see 475-476, 86 S.Ct. 1602. It is claimed he was advised that anything he said might be used against him. Even so, it does not follow that what he said was voluntary. It also is claimed he was advised he need not say anything. But, again, the issue of voluntariness remains.4 A Miranda waiver does no more than remove the Miranda bar to the admission of a confession. It does not solve the issue of its voluntariness. United States v. Bernett, 161 U.S.App.D.C. -, 495 F.2d 943 (1973) (statement of position of Judge Robinson).
Ill
The facts on that issue are outlined as follows: Appellant was an eighteen-year-old drug addict. He was accosted on the street, though not then arrested, by two plainclothed officers because they thought he resembled a suspect who had been described as having committed crimes in the neighborhood. He ran and was pursued at gunpoint. The pursuing officer later testified, “I had my service revolver out and I aimed it at the defendant, again telling him to halt.” “He continued running . . . , shouting, ‘Don’t shoot, don’t shoot.’ ” “. . .1 caught up with him and grabbed him by the collar, handcuffed him and advised him of his constitutional rights.” “. . . He was visibly shaken. . I think the fact that I almost shot him bothered him, and also bothered me.” Appellant had discarded a gun as he ran; it was recovered by one of the officers and appellant was arrested for carrying a concealed weapon. This was at 8:30 p. m.
Arrested and being booked for carrying a concealed weapon he was first interrogated about a number of robberies, instead of being taken before a magistrate in accordance with Rule 5(a) F.R. Crim.P. He admitted several robberies and denied others.5 It is not clear exactly how many officers engaged in interrogating him. But Officer Szewczyk, the arresting officer, said that he was interrogated — “interviewed” as he expressed it — by detectives from the First District, a detective from the Robbery Squad and then by detectives from the Sex Squad, who had been called from another station. He also testified, on *128being asked whether he interrogated defendant about any robberies, that he had not, adding, “I didn’t have a chance to . Everybody else was interrogating him . . . two — two or three.” “Is it fair to say,” he was asked, “that between 8:30 in the evening and 2:00 a. m. . . . Mr. Poole was being questioned continuously by police officers, whether they be Robbery Squad, Sex Squad or members of the First District?” He answered, “Quite a bit of the time, yes, sir.”
The officers had noticed appellant’s resemblance to a composite sketch of the person who had raped a secretary two weeks earlier in the general vicinity where appellant was arrested and they advised their superior of this fact, suggesting that the Sex Squad be notified. Following the interrogation about the robberies, the interrogation then turned to the rape. Officer Kelly and Detective Tague of the Sex Squad had arrived for this purpose and took up the interrogation at approximately 10:00 p. m. They took appellant to another room where they photographed him. He was required partially to strip so they could take samples of his pubic hair. The following then occurred according to Officer Kelly's own testimony:
After we took the pictures and the pubic hairs, I offered Mr. Poole a cigarette. He accepted it and I confronted him with the fact that we had pictures and that the complainant made, through the composite, such a strong resemblance of the man who assaulted her that she could most likely identify him.
I then informed him that the hairs that we had of his could possibly match the ones found on the property of the complainant.
Then, also, at the time we didn’t know — We knew we had fingerprints, but there was no report back from the Mobile Crime Lab and we also confronted him with the fact that we possibly had some fingerprints.
Then he asked Detective Tague if he could leave the room.
Q Let me ask you: How did you initiate the conversation ?
A Well, I asked him — I took the composite and I asked Mr. Poole if he committed the assault and at the time, he said no.
[Witness identifies the composite.]
* -X- -X- * -X- *■
A So, Detective Tague left the room at the request of Mr. Poole because he wanted to talk with just one of us, which was myself.
And I asked him — I confronted him with the facts we had.
And he asked me about, “well, what kind of bond would I receive?”
[Thus he had incriminated himself.]
I then said to him, “If you did do it, tell me now and we will go down to the Sex Squad but,” I said, “I don’t want you to admit to anything that you didn’t do.”
Then he said to me, “Okay, let’s go to the Sex Squad.”
And I said, “Well, wait a minute.” I said, “What are you telling me?”
And he said, “Well, yes, I did it. I raped [the] secretary,” [naming whose secretary she was].
At 10:30 p. m. Officer Kelly decided to take him to the Sex Squad Office in another part of Washington.6
Confronting him with the composite, telling him the victim most likely would identify him,7 the physical taking of his pubic hairs, thus invading his personality, Miranda, supra, 384 U.S. at 460, 86 S.Ct. 1602, the representation to him that the hairs they had could possibly match those found on the property of the complainant, and stating that they *129possibly had some fingerprints, thus confronting “him with the facts we had” ■ — which they did not have 8 — were pressures obviously designed to, and did, exert compulsion to confess after appellant had repeatedly denied the rape according to the undisputed testimony. He was confronted with a hopeless situation grounded upon then unsupported factual representations, see footnote 8, supra, pressed upon him as demonstrating his guilt.
The situation above described is based upon undisputed evidence. Thus the confession, “I did it,” was patently involuntary. It was not “the unfettered exercise of his own will.” Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). This method of inducing a confession overcomes what assurance of voluntariness might arise from a previous waiver of rights. There is here clear and undisputed evidence of effective compulsion. It is not established that “the making of the statement was voluntary.” Bram v. United States, supra, 168 U.S. at 549, 18 S.Ct. at 189, 42 L.Ed. 568.
The foregoing is by no means all the undisputed evidence. There is also no dispute that appellant was a heroin addict. Appellant claims that during the period he was held under interrogation he was suffering withdrawal pains and was promised help if he confessed. As to this matter Officer Szewczyk testified that while he was filling out an arrest form appellant told him of his addiction in response to the officer’s inquiry. Officers Quantrelle and Waybright, who also engaged in the questioning, were also advised of his addiction. At the suppression hearing appellant testified that he confessed in order to obtain treatment for withdrawal which he said the police promised. While they denied this, Officer Quantrelle admitted to advising appellant that help was available if needed when he would be brought to the central cell block after their interrogation. The officers denied seeing any physical indication of withdrawal pains during the interrogations, but Officer Szewczyk testified that when bringing appellant to the central cell block after the interrogation had been completed in the early morning appellant complained of withdrawal pains, and “ . I told him that it was up to the sergeant at the Central Cellblock to have him transported to the hospital for treatment.” The officer also said, most significantly, “I informed the sergeant that he said he might be having withdrawals.”
There is also the undisputed testimony of the nurse at the jail where defendant was received March 3.9 She testified that on March 3 he was seen by the medical technical assistant who recorded he was “[i]n withdrawal, needle marks on forearm, Methadone 30 milligrams.” She also testified that for six days he was on methadone detoxification. The medical records also show an entry by a doctor, apparently made on April 1; “perirectal aspect, heroin addiction.”
The Government does not question the fact that appellant took heroin twice on the day of his arrest at approximately one o’clock in the morning and twelve hours later at one p. m. Heroin addiction is discussed in some detail in the recent decision of this court in United States v. Moore, 158 U.S.App.D.C. 375, 486 F.2d 1139, cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973). I refer particularly to the statement in the dissenting opinion of Judge Wright, there supported, that withdrawal usually *130begins eight to ten hours after the last dose, with acute withdrawal symptoms being manifested within 48 to 72 hours. (486 F.2d at 1232.) It seems more than likely that during the period of his interrogation appellant was experiencing at least some of the throes of withdrawal, as he repeatedly testified, followed at some point by acute withdrawal pains when he was admitted to the infirmary the following day and given a dosage of methadone slightly larger than normal. This analysis gains credence from the fact that during the interrogation he was given coffee with plenty of sugar, cookies and candy. The need for sweets is symptomatic of withdrawal.
In weighing the effect of the interrogation to obtain a confession the court must consider that appellant may have been unusually vulnerable to compulsion either because of the pangs of withdrawal or the hope of avoiding them by confessing to gain needed help. Moreover, we are in the dark as to the effect of his undisputed addiction itself upon the issue of voluntariness of the confession.10 Had appellant been taken without unnecessary delay before a magistrate, as required by Rule 5(a), F.R. Crim.P., this crucial matter, bearing heavily upon the issue of voluntariness, might have been resolved. The sum of the drug factor in this case, particularly the evidence bearing on the issue of withdrawal which is undisputed, cannot be ignored on the issue of voluntariness simply by an uncritical acceptance of the finding of the trial judge that appellant was not having withdrawal pains.
Another significant item, ignored by the court, is that after the detailed confession was written up and signed, defendant was permitted to talk to his mother on the telephone. The officer who heard this conversation testified he told his mother, “ T had to get it off my back’ or ‘get her off my back’ — something to that effect.”11 The defendant’s mother testified that he said, “Mama, I had to tell them something. They are worrying me to death,” and he said, “They are going to help me. . . . ” One can hardly avoid wondering whether the “something like” “I had to get it off my back” was in fact “I had to get them off my back,” that is, as the mother said, “I had to tell them something. They are worrying me to death.” And his statement that he said to his mother that “they are going to help me” gains credence by reason of the uncontestable evidence of addiction and the fact that he knew he faced withdrawal pains while in custody even if their actual timing is not definite.
There is one further item of evidence I wish to note. It appears that prior to any confession appellant at the precinct station requested permission to make a telephone call, but no call was made until he was permitted to use the telephone in the early hours of the morning, after signing the written confession.
I think it clear that compulsion of a character to render the confessions inadmissible was exerted upon appellant. Moreover, any doubts in that regard, under the standard of proof established by Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), should be resolved by exclusion of the confession, for we cannot place ourselves in his situation and accurately judge the subjective factors operative upon him due to the interrogation and its incidents, including his addiction and possible withdrawal pains, with help to come after confessing. And secret in-custody interrogation eludes accuracy of reproduction at a subsequent hearing.
Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.
******
The atmosphere carries its own badge of intimidation.
*131Miranda, supra, 384 U.S. at 448, 457, 86 S.Ct. at 1614, 16 L.Ed.2d 694. And see United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).12
I would hold the confessions inadmissible and remand for a new trial on evidence other than the confessions.
IV
Apart from the foregoing based on the involuntariness of the confessions, they were inadmissible in my opinion on the independent ground spelled out in Adams v. United States, 130 U.S.App.D. C. 203, 399 F.2d 574 (1968). The defendants in that case were arrested in the afternoon for a particular attempted robbery. They were booked for that crime and put in several lineups without being presented to a magistrate for several days. One of them was identified at one of the lineups as having committed a different robbery. He was never prosecuted for the robbery for which he had been arrested, but on the trial for the one for which he was thus identified, the identification was admitted. This court (Burger, Wright and McGowan, JJ.) reversed. The opinion of Judge McGowan, in which Judge Wright concurred, states:
The purpose of Rule 5(a) is to get persons lawfully arrested out of the police station and before a magistrate. At least in those cases where, as here, delay in presentment succeeds in turning up complicity in another and more serious crime than the one for which probable cause to arrest exists, the Rule can be made irrelevant by failing to prosecute the crime for which the arrest was made. This is not an available technique.
On the precise facts shown by this record, we think the effect of Rule 5(a) is to convert, at least as of 4:00 P.M. on the afternoon of appellants’ arrest, their continued detention at the police station into an unlawful arrest without probable cause in respect of the crime for which they were con-*132vieted. It is not, thus, the precise scope of the Mallory exclusionary rule which is determinative here but, rather, the sweep of the general policy of excluding evidence gathered during a period of detention following upon an unlawful arrest. The applicable case among our precedents is Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1959), in which this court held that fingerprints taken from one illegally arrested must be excluded, and where it espoused the principle that anything of evidentiary value produced by such detention is proscribed. (Footnote omitted.)
130 U.S.App.D.C. at 206, 399 F.2d at 577. In his concurrence, Judge Burger, now our Chief Justice, states:
Necessary delay can reasonably relate to time to administratively process an accused with booking, fingerprinting and other steps and sometimes even to make some limited preliminary investigation into his connection with the crime for which he was arrested, especially when it is directed to possible exculpation of the one' arrested. However, when delay of presentment to the magistrate is for the purpose of investigation of other crimes, then there is no doubt that the “delay” has become “unnecessary.”
130 U.S.App.D.C. at 208, 399 F.2d at 579.
As in Adams, Rule 5(a) was plainly violated in the present case.
In his concurring opinion in Adams, Judge Burger did not accept the “divisible arrest” theory of the majority. In view, however, of Wade, supra, he applied the Mallory exclusionary rule to the lineup identification:
Now that the right to counsel is an integral part of the lineup procedure, the warnings that are given at presentment and the opportunity to have counsel appointed are highly relevant to the lineup situation. See Fed.R.Crim.P. 5(b); 18 U.S.C. § 3006 A (b) (1964). Since the MaUory rule was a response to the protections afforded by prompt presentment, it is appropriately applied to the lineup situation in the wake of Wade.
130 U.S.App.D.C. at 209, 399 F.2d at 580.
Under the views of both the majority and Judge Burger the exclusion of the lineup identification was based on the fact that it was obtained as the consequence of illegal detention, due, in the majority’s view, to the unlawful arrest without probable cause for the robbery for which he was tried, and, in Judge Burger’s view, due to the unlawfulness of the detention in violation of Rule 5(a). In appellant’s case the confession was obtained during the illegal detention in violation of Rule 5(a) as was the lineup identification in Adams, and, as in Adams, it was for a different crime from that which led to the arrest. Appellant was not arrested for rape prior to the oral confession to Officer Kelly. After that, and not before, Officer Kelly directed that appellant be booked for the rape. It would seem logical to apply to a confession to another crime obtained during such illegal detention the same rule that is applied to an identification with respect to another crime. When an arrest for one offense on probable cause is utilized to detain a suspect indefinitely, for the purpose of investigating by lineups, as in Adams, or by in-custody interrogation, as here, with respect to other crimes, it is the unlawfulness of the detention which leads to the resulting evidence. This is so whether that unlawfulness is attributed to no probable cause for arrest for the other crime or to violation of Rule 5(a). We cannot escape the duty of insisting that in the administration of criminal justice evidence be obtained by lawful means.
It may be contended now, however, with reference to Judge Burger’s concurring opinion in Adams, that the detention of the appellant had not become unlawful under Rule 5(a), although in Adams Judge Burger held a similar detention was unlawful. This contention *133would rest upon the views expressed by this court subsequent to Adams that a Miranda waiver is a waiver also of the obligation of the arresting authorities to comply with Rule 5(a). The opinions of this court in Frazier v. United States, 136 U.S.App.D.C. 180, 419 F.2d 1161 (1969), and Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969), are to that effect. I respectfully urge that this is a mistaken position, and should be reconsidered, for it is inconsistent with the position of the Supreme Court in Miranda, as appears from the following portion of the opinion in that case, which the Frazier and Pettyjohn opinions seem to have overlooked :
Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and this Court’s effectuation of that Rule in 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), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner “without unnecessary delay” and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343-344, 63 S.Ct. 608, 614, and in Mallory, 354 U.S., at 455-456, 77 S.Ct. 1356, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself.32
384 U.S. at 463, 86 S.Ct. at 1622.
It hardly need be added that none of the Miranda warnings given in the present case advised appellant of his right to be taken without unnecessary delay before a magistrate. Not only was that right not waived, but a Miranda waiver, applicable to state prosecutions, leaves intact the application in federal cases of Rule 5(a) and the decisions effectuating its provisions.
V
It seems quite clear that the confessions, obtained in the course of a violation of Rule 5(a), would therefore be inadmissible for that reason alone under the Mallory rule but for the erroneous waiver ruling of this court above discussed, unless the enactment subsequent to Miranda of 18 U.S.C. § 3501 13 now precludes application of the Mallory rule. Section 3501 became effective June 19, 1968, two days before Adams was decided. The Adams court, however, did not consider section 3501, although it was mentioned without elaboration in the Government’s petition for rehearing, which was' denied without opinion September 9, 1968.
In my view there are serious questions whether section 3501 can be sustained as a modification of the Mallory rule — questions of constitutional substance as indicated by the Miranda reference to the Rule. But since I think the convictions with respect to the rape *134and its related charges should not be sustained on grounds independent of the Mallory rule, I need not pursue my resolution of those questions. There are, however, several additional comments I wish to make with respect to the present opinion of the court:
I have no disagreement with the majority as to the seriousness of the crime or the strength of evidence of appellant’s guilt apart from the confessions. The court does not suggest, however, application of the harmless error rule. The court holds there was no error in the admission of the confessions. In that situation the seriousness of the crime and the strength of other evidence of guilt may not- properly be considered on the issue of voluntariness of the confessions. The Supreme Court has been very clear as to this. In Davis v. North Carolina, 384 U.S. 737, 739, 86 S.Ct. 1761, 1763, 16 L.Ed.2d 895 (1966), where the voluntariness of the confession was to be determined in a collateral attack upon the conviction the Court said:
We are not called upon in this proceeding to pass on the guilt or innocence of the ‘ petitioner of the atrocious crime that was committed. Nor are we called upon to determine whether the confessions obtained are true or false. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).
In Rogers v. Richmond the matter is carefully and fully explained by Mr. Justice Frankfurter for the Court.
Moreover, the serious crime situation among the young does not excuse coercive in-custody interrogation of a particular youth under arrest. Quite the opposite is the case, as pointed out in the famous opinion for the Court of Mr. Justice Black in Chambers v. Florida, supra, in 1940, and that of Mr. Justice Douglas for the Court in later years in Gallegos v. Colorado, 370 U.S. 49, 53, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). The Court there cites the earíier case and goes on to note, “[t]he youth of the suspect was the crucial factor in Haley v. Ohio, . . . [332 U.S. 596, 599-600, 68 S.Ct. 302, 92 L.Ed. 224 (1947)]”, adding, “[t]he fact that petitioner was only 14 years old puts this case on the same footing as Haley v. Ohio, supra,” even though there was “no evidence of prolonged questioning.” 370 U.S. at 53, 54, 82 S.Ct. at 1212. The point is, simply, that the youth of an arrestee weighs against voluntariness of his confession, notwithstanding the prevalence of crime among the young.
For these additional reasons the court in my opinion is not now following the proper standards governing appellate review of the issue of voluntariness. My position in this regard also gains strength from the several references by the majority to appellant’s capacity, which, though relevant, is not a criterion for determining the issue of volun-tariness.
The majority accepts as fact all the testimony of the officers to which the court refers, whether or not disputed; yet the trial judge did not resolve these factual disputes in their details at the suppression hearing, and I do not suggest the judge was required to do so. He concluded generally that the confession was “freely given without coercion of any kind,” and that appellant during the custodial interrogation was not suffering withdrawal pains.14 My conclusion that the confesssions were involuntary rests upon undisputed facts, reinforced by circumstances which may be in dispute. In contrast the majority reaches the opposite conclusion by accepting disputed facts as to which the trial court made no specific finding, disregards the inherently coercive character of secret, in-custody interrogation pointed out in Miranda, supra, 384 U.S. at 448, 457, 86 S.Ct. 1602, 16 L.Ed.2d 694, disregards the reference by the Su*135preme Court there to the fact that privacy results in a gap in our knowledge as to what goes on in an interrogation room,15 and accepts the testimony of the officers not as their testimony but as fact16
That the court has departed from the proper standard of review as to the voluntariness of the confession is further demonstrated by the court’s discussion of the taking of the pubic hair sample and the accompanying circumstances. The majority states that the officers had the right thus to invade his personality, citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and United States v. Sheard, 154 U.S.App.D.C. 9, 473 F.2d 139, cert. denied, 412 U.S. 943, 93 S.Ct. 2784, 37 L.Ed.2d 404 (1973). In Schmerber the Court upheld as against the claim of violation of the Fifth Amendment privilege and the Fourth Amendment protection from unreasonable search and seizure, the admission in evidence of an analysis of blood taken 'from an individual suspected of drunkenness. In Sheard the question was as to the admissibility of a benzidine test to the pubic area of the accused, which this court upheld. In the present case no issue is raised as to the admissibility of any evidence respecting pubic hairs, and no contention is made the officers were without legal right in obtaining them. What is' contended, and, respectfully, cannot in reason be denied, is that the complete domination thus assumed over appellant, with its special invasion of his personality, was a significant factor to be considered in determining the issue of voluntariness, as was the stripping of Bram, the mature second mate on a freighter, in determining the issue of voluntariness of his incriminating statement. Bram v. United States, 168 U.S. 532, 561-562, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
VI
The concurring opinion of Judge Leventhal states, “The fact that we place our ruling on a waiver by appellant is not to be taken as a concession or ruling that his confession would have been inadmissible under Mallory.” The suggestion is that appellant’s, detention under interrogation from shortly after 8:30 p. m. until nearly 1:30 a. m. was not “unnecessary delay” within the meaning of Rule 5(a), F.R.Crim.P. and Mallory, a position not advanced by the Government. The fact is the delay in this case before the written confession was signed was actually longer than the period of interrogation which preceded the confession in Mallory, the case which gave rise to the Rule. Furthermore, the possible unavailability of a magistrate made no difference to the Supreme Court in Mallory. This view in the concurring opinion, therefore, departs from Mallory and from the application in this jurisdiction of the Rule for which the case stands. See, Greenwell v. United States, 119 U.S.App.D.C. 43, 336 F.2d 962 (1964); Spriggs v. United States, 118 U.S.App. *136D.C. 248, 335 F.2d 283 (1964) 17; Naples v. United States, 113 U.S.App.D.C. 281, 307 F.2d 618 (en banc, 1962). The two cases from this jurisdiction cited by the concurring opinion in its footnote 3 give no support to its position. In Lockley v. United States, 106 U.S.App.D.C. 163, 270 F.2d 915 (1959), the confession came fifteen minutes after the arrest and in Washington v. United States, 103 U.S.App.D.C. 396, 258 F.2d 696 (1958), within twenty minutes.
The suggestion of Judge Leventhal’s concurring opinion that, since appellant’s arrest at night prevented judicial presentment under Rule 5(a) until the next morning, a confession obtained by interrogation during this delay might not be inadmissible under Mallory envisages the possibility that arrests could be made at night followed if need be by night-long, secret interrogation to obtain a confession, in stark derogation of the obligation under Rule 5(a). Although dissenting for other reasons in Spriggs v. United States, supra, Judge Burger, now Chief Justice, stated the following course to be followed under Mallory when a magistrate is not available at night:
The heart of the problem, as I see it, is that once it can fairly be said that there is probable cause to charge a detained person, he is not to be interrogated. He may be held to await the reasonable availability of a judicial officer. If the arrest occurs at midnight, it is absurd to talk of calling a Judge or Commissioner out of his bed to conduct a hearing which may take only 10 minutes and can as readily be held in regular business hours the following morning. Moreover, police officers or other witnesses may not be available outside regular business hours. But during the interval while the detained person is awaiting presentment before a judicial officer, substantive interrogation must, under the controlling authorities, be suspended. It is not delay per se which is prohibited by Mallory, it is the interrogation process which is restricted.
118 U.S.App.D.C. at 253, 335 F.2d at 288.
VII
The problem in this case with respect to Rule 5(a), aside from the possible application of 18 U.S.C. § 3501, already referred to in my opinion,18 does' not turn on whether there was a violation of Rule 5(a) — such a violation clearly appears unless compliance with Rule 5(a) was waived — but upon whether the Miranda waivers constituted a waiver of the obligation of compliance by the officers with Rule 5(a), as held in Pettyjohn, supra. The majority relies on this waiver theory to solve the complexities of the Mallory issues to which Judge Leventhal refers. The difficulty with this reliance, however, is the Miranda opinion itself. See the quotation from the opinion, 384 U.S. at 463, 86 S.Ct. 1602, 16 L.Ed.2d 694, supra. There the Court explicitly preserves the vitality in federal cases of Rule 5(a) and the cases thereunder, citing Mallory. The Supreme Court was careful to surround a Miranda waiver of rights with safeguards designed to protect its authenticity. The opinion is largely devoted to these safeguards. In preserving at the same time in federal cases the vitality of Rule 5(a) and Mallory, the Court clearly excluded Rule 5(a) and Mallory from the embrace of a Miranda waiver applicable to state cases. Such a waiver and the reaffirmation of Rule 5(a) and Mallory are mutually exclusive. In' neither Petty-john nor in Frazier opinion is this situation noted. Miranda, I respectfully *137suggest, cannot be held silently to have destroyed what it explicitly preserves.
I respectfully dissent on the ground that affirmance of the rape and its associated convictions rests upon confessions which were inadmissible. I add that, as I have noted from time to time, the majority position in my opinion rests substantially upon an erroneous standard of appellate review of the issue of volun-tariness of the confessions.
While under the views I have expressed justice may still remain to be done in this case, I think it has not yet been accomplished consistently with the Fifth Amendment privilege against compelled self-incrimination, all else aside.
. Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Haley v. Ohio, 332 U.S. 596, 601, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 64 S. Ct. 921, 88 L.Ed. 1192 (1944); Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L. Ed. 166 (1941); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940).
. Even in these circumstances it is essential that it be corroborated, evidencing the care of the law not to sentence on the basis of a confession. Smith v. United States, 348 U.S. 147, 152-153, 75 S.Ct. 194, 99 L.Ed. 192 (1954).
. Among the decisions of the Supreme Court reflecting this are Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Chambers v. Florida, supra, and the more recent review of the whole subject in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. He was never advised that arresting authorities were under a legal obligation under Rule 5(a), F.R.Crim.P., to take him without unnecessary delay before a magistrate. This omission will be discussed further on in this opinion.
. At the suppression hearing appellant admitted to committing robberies to support his $60.00 a day heroin habit, but he denied confessing to any specific robbery.
. Shortly after arrival there he was forced to strip and put on a jail shirt.
. At the original lineup the complainant identified another, hut later identified a photograph of appellant at the grand jury and at trial. She also pointed out appellant during trial.
. No pubic hairs or fibers from appellant’s clothing were found in the car or on the secretary or her clothing. Nor were there any identifying fingerprints found on the car, except for one clear fingerprint which was neither identified nor introduced at trial. A shirt was later taken from him to be sent to the FBI to see if fibers matched any found on the secretary’s clothing.
. It will be recalled he was under interrogation from about 8:30 p. m. March 2 until the early morning of March 3. The time of day he was received at the jail is not clear; there was testimony that usually the prisoners are brought from the court to the jail between 6 and 8 o’clock.
. “ . . . in reality heroin produces a tranquil, lethargic state in the user . ” United States v. Moore, supra, 486 F.2d at 1228 (dissenting opinion).
. Emphasis added.
. The importance of the Miranda warnings facies on close examination, although in finding the confessions involuntary I have assumed a valid Miranda waiver. No significance attaches to the oral warning at the time of the arrest. I-Iis discarded weapon had been retrieved by one of the arresting officers and he was not being interrogated. And the last warning given at 11:30 p. m. with appellant’s signature, is also of no significance because the initial confession had been obtained at 10 :30 p. m.
Of the remaining warnings, the earlier one was given by Officer Joseph C. Quantrelle at 9 :00 p. m. and bore appellant’s pen-printed name. Appellant denied signing the waiver. If that alleged warning were critical a remand for expert testimony on handwriting would be necessary in my opinion. This signature has no resemblance whatever to his admitted signature, and Officer Szewczyk, the so-called “witness” to the waiver, testified that he did not in fact see appellant sign it. Furthermore, at 9 o’clock that evening the police had not begun to interrogate appellant about the rape.
The warning given at 10:35 p. m., “Time: 2235”, was after appellant had orally confessed to Officer Kelly. The Government admits that Officer Kelly never advised appellant of his rights, and Officer Kelly according to his own testimony obtained the initial verbal confession at 10:30 p. m. On direct examination Officer Kelly said be observed others advising appellant of his rights. There is, however, no testimony of any of the officers who testified as to warning appellant of his rights except that I have discussed in this footnote, and none of their testimony is with respect to a warning subsequent to 9 o’clock until the 10:35 warning given after the oral confession.
There is thus no satisfactory proof of waiver at the time the interrogation switched to a different room by different officers, and from robberies to the rape. There is accordingly a serious question whether appellant was adequately warned of and waived his rights with respect to the interrogation about the rape. This was a matter unconnected with the arrest and previous interrogation. Under Miranda, supra, 384 U.S. at 479, 86 S.Ot. at 1630, such prior warnings as might here have been given did not satisfy the burden of the interrogators to assure the appellant a continuing opportunity to exercise his rights. “The opportunity to exercise these rights must be afforded to him throughout the interrogation.” Even if we assume that the disputed 9 o’clock warning was given and rights waived, this episode was unrelated to the subsequent interrogation about the rape.
. The relevant provision of section 3501 in this connection is contained in section 3501(c) that a confession “shall not be inadmissible solely because of delay in bringing [the person arrested and in custody] before a magistrate ... if such confession is found by the trial judge to have been made voluntarily . . . and if such confession was made or given by such person within six hours immediately following his arrest or other detention. . . . ”
. Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally, Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958).
. The majority finds that appellant had knowingly and voluntarily waived his rights to remain silent and to counsel. Although ,in my footnote 12, above I give reasons for believing the importance of the Miranda, waivers is weakened on close examination, I have considered the voluntariness issue on the assumption the Miranda waivers were valid.
. To the same effect see United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Ashcraft v. Tennessee, 322 U.S. 143, 152, 64 S.Ct. 921, 88 L. Ed. 1192 (1944), and Gallegos v. Colorado, supra, 370 U.S. at 50-51, 82 S.Ct. at 1211, where it is said:
Confessions obtained by “secret inquisitorial processes” (Chambers v. Florida, 309 U.S. 227, 237, 60 S.Ct. 472, 84 L.Ed. 716) are suspect, . . . “always evidence concerning the inner details of secret inquisitions is weighted against an accused.
. This approach of the court also leads to several particular factual conclusions which in my opinion are unwarranted. Thus it is said that appellant “drew” his gun as though he threatened the officer because when being pursued he turned toward the officer, rather than interpreting the situation as a discarding of the gun as he ran. It is also said that he signed one of the Miranda warnings and consent forms by printing his name although he not only denies this signing, but the alleged signature has no resemblance whatever to his admitted signature and the officer who signed as “witness” testified that he did not in fact “witness” the signing. Again, the majority states appellant “says he was frightened” when arrested. As I have pointed out my reference to the frightened condition of appellant is based on the arresting officer’s own testimony, who said he “was visibly shaken. ...”
. I should supplement somewhat Judge Lev-enthal’s description of Spriggs by pointing out that the form-filling process there was so protracted as to amount to “unnecessary delay.” Moreover, Spriggs in no way departs from the rule, so fully explained in Rogers v. Richmond, supra, that the admissibility of confessions does not depend upon their reliability but upon the circumstances under which they were obtained.
. See my footnote 13, supra, and text following.