But the foundations for application of the McNabb doctrine are here totally lacking. Unlike the situation in other countries, see, for instance, §§ 25 and 26 of the Indian Evidence Act, 1872,1 under the prevailing American criminal procedure, as was pointed out in the McNabb case, "The mere fact that a confession was made while in the custody of the police does not render it inadmissible." 318 U. S. at 346. Under the circumstances of this case, the trial courts were quite right in admitting, for the juries' judgment, the testimony relating to Mitchell's oral confessions as well as the property recovered as a result of his consent to a search of his home. As the issues come before us the facts are not in dispute and are quickly told. In August and carly October 1942, two houses in the District of Columbia were broken into and from each property was stolen. The trail of police investigation led to Mitchell who was taken into custody at his home at 7 o'clock in the evening on Monday, October 12, 1942, and driven by two police officers to the precinct station. Within a few minutes of his arrival at the police station, Mitchell admitted guilt, told the officers of various items of stolen property to be found in his home and consented to their going to his home to recover the property. It is 1 § 25: "No confession made to a Police officer, shall be proved as against a person accused of any offence." § 26: "No confession made by any person whilst he is in the custody of a Police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." 2 In both cases Mitchell denied the testimony of the officers that he had in fact made prompt and spontaneous confession and consent to the search of his home, and on the basis of such denial motions were made to exclude the evidence. The trial judges ruled that whether these statements were in fact made in the circumstances narrated were questions of fact for the juries. As such they were left to the these admissions and that property which supported the convictions, and which were deemed by the court below to have been inadmissible. Obviously the circumstances of disclosure by Mitchell are wholly different from those which brought about the disclosures by the McNabbs. Here there was no disclosure induced by illegal detention, no evidence was obtained in violation of any legal rights, but instead the consent to a search of his home, the prompt acknowledgement by an accused of his guilt, and the subsequent rueing apparently of such spontaneous cooperation and concession of guilt. But the circumstances of legality attending the making of these oral statements are nullified, it is suggested, by what followed. For not until eight days after the statements were made was Mitchell arraigned before a committing magistrate. Undoubtedly his detention during this period was illegal. The police explanation of this illegality is that Mitchell was kept in such custody without protest through a desire to aid the police in clearing up thirty housebreakings, the booty from which was found in his home. Illegality is illegality, and officers of the law should deem themselves special guardians of the law. But in any event, the illegality of Mitchell's detention does not retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. juries, and we here accept their verdict as did the court below. Mitchell, it must be emphasized, merely denied that he made these statements and so did not contest the time of making them. While at the trial there was a claim by Mitchell that he was abused by the police officers, in the state of the record that issue is not here. This power is not to be used as an indirect mode of disciplining misconduct. Judgment reversed. MR. JUSTICE DOUGLAS and MR. JUSTICE RUTLEDGE concur in the result. MR. JUSTICE BLACK dissents. MR. JUSTICE REED: As I understand McNabb v. United States, 318 U. S. 332, as explained by the Court's opinion of today, the McNabb rule is that where there has been illegal detention of a prisoner, joined with other circumstances which are deemed by this Court to be contrary to proper conduct of federal prosecutions, the confession will not be admitted. Further, this refusal of admission is required even though the detention plus the conduct do not together amount to duress or coercion. If the above understanding is correct, it is for me a desirable modification of the McNabb case. However, even as explained I do not agree that the rule works a wise change in federal procedure. In my view detention without commitment is only one factor for consideration in reaching a conclusion as to whether or not a confession is voluntary. The juristic theory under which a confession should be admitted or barred is bottomed on the testimonial trustworthiness of the confession. If the confession is freely made without inducement or menace, it is admissible. If otherwise made, it is not, for if brought about by false promises or real threats, it has no weight as proper proof of guilt. Wan v. United States, 266 U. S. 1, 14; Wilson v. United States, 162 U. S. 613, 622; 3 Wigmore Evidence (1940 Ed.) § 882. As the present record shows no evidence of such coercion, I concur in the result. EXHIBIT 11 Opinion of the Court. UPSHAW v. UNITED STATES. 335 U.S. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. No. 98. Argued November 12, 1948.—Decided December 13, 1948. Arrested on suspicion without a warrant, petitioner confessed 30 hours later, while being held without having been taken before a committing magistrate as required by Rule 5 (a) of the Federal Rules of Criminal Procedure. The only reason given by the arresting officer for the delay in his arraignment was that there was not enough evidence to hold him and the police wished to question him further. At his trial in a federal court, the confession was admitted in evidence over his objection and the jury found that it was voluntary. Held: The confession was inadmissible and a conviction based thereon is reversed. McNabb v. United States, 318 U. S. 332, followed. United States v. Mitchell, 322 U. S. 65, distinguished. Pp. 410-414. 83 U. S. App. D. C. 207, 168 F. 2d 167, reversed. Petitioner was convicted of grand larceny in a federal district court. The Court of Appeals affirmed. 83 U. S. App. D. C. 207, 168 F. 2d 167. This Court granted certiorari. 334 U. S. 842. Reversed, p. 414. Joel D. Blackwell argued the cause for petitioner. With him on the brief was James T. Wright. Robert S. Erdahl argued the cause for the United States. With him on the brief were Solicitor General Perlman and Beatrice Rosenberg. MR. JUSTICE BLACK delivered the opinion of the Court. The petitioner was convicted of grand larceny in the United States District Court for the District of Columbia and sentenced to serve sixteen months to four years in prison. Pre-trial confessions of guilt without which peti 410 Opinion of the Court. tioner could not have been convicted' were admitted in evidence against his objection that they had been illegally obtained. The confessions had been made during a 30hour period while petitioner was held a prisoner after the police had arrested him on suspicion and without a warrant. Petitioner's objection to the admissibility of the confessions rested on Rule 5 (a) of the Federal Rules of Criminal Procedure and our holding in McNabb v. United States, 318 U. S. 332. Rule 5 (a) provides that "An officer making an arrest . . . shall take the arrested person without unnecessary delay before the nearest available" committing magistrate and when the arrested person appears before the magistrate "a complaint shall be filed forthwith." Petitioner contended that the officers had violated this rule in detaining him as they did without taking him before a committing magistrate. In the McNabb case we held that confessions had been improperly admitted where they were the plain result of holding and interrogating persons without carrying them "forthwith" before a committing magistrate as the law commands. In this case the District Court thought that the McNabb ruling did not apply because the detention of petitioner "was not unreasonable under the circumstances as a matter of law." Consequently, that court held the confessions admissible. On appeal to the United States Court of Appeals for the District of Columbia, the United States Attorney and his assistants detailed the circumstances of petitioner's arrest and detention and After the evidence was all in, the trial judge stated that without the confessions there was "nothing left in the case." The trial judge instructed the jury to acquit if they found that the petitioner had not confessed "voluntarily but because he was beaten." On this issue of physical violence the jury found against the petitioner, and therefore this issue is not involved in this case. |