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EXHIBIT 14(2)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Nos. 13069, 13165 and 13212

JOHN E. TRILLING, APPELLANT

V.

UNITED STATES OF AMERICA, APPELLEE

Appeals from the United States District Court
for the District of Columbia

Decided April 17, 1958

Mr. John Idomir for appellant.

Mr. E. Tillman Stirling, Assistant United States Attor ney, with whom Messrs. Oliver Gasch, United States Attorney, and Lewis Carroll, Assistant United States Attorney, and Forbes W. Blair, Assistant United States Attorney at the time the brief was filed, were on the brief, for appellee. Messrs. Harold D. Rhynedance, Jr., and Joel D. Blackwell, Assistant United States Attorneys, entered appearances for appellee. Mr. Richard J. Snider, Assistant United States Attorney, also entered an appearance in No. 13165 for appellee. Mr. Milton Eisenberg, Assistant United States Attorney, also entered an appearance in No. 13212 for appellee.

Before: EDGERTON, Chief Judge, and PRETTYMAN, WILBUR K. MILLER, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting in banc.

PER CURIAM: These appeals were heard together. In regard to Count 3 in No. 13069, a majority of the court

are of opinion there was no error. In regard to the other counts of No. 13069, and in each of the other cases, a majority of the court are of opinion there was prejudicial error in admitting in evidence certain statements the police obtained from appellant. The conviction on Count 3 is affirmed. The other convictions are reversed.*

DANAHER, Circuit Judge: We consolidated the appeals in these cases because the common question involved the receipt in evidence of Trilling's confessions or admissions made to police before Trilling was arraigned. Were the circumstances such that all must be excluded? A codefendant, Watts, had pleaded guilty to all counts, but Trilling had moved to exclude all confessions and admissions on the ground there had been unnecessary delay in arraignment. In the separately tried cases, hearings out of the presence of the jury were conducted by three different District Judges, each of whom concluded that the confessions should be received, subject to determination by the jury as to their voluntary character. While the appeals were pending, the Supreme Court decided Mallory v. United States.1 As there applied, FED. R. CRIM. P. 5(a) seems to permit differing results in varying situations.

* Circuit Judges Danaher and Burger vote to affirm the conviction on Count 3 in No. 13069 and to reverse the other convictions. Judge Danaher files an opinion (p. 2) in which Judge Burger joins. Judge Burger files a separate concurring opinion (p. 15). Circuit Judges Prettyman, Wilbur K. Miller and Bastian concur in Part I of Judge Danaher's opinion.

Chief Judge Edgerton and Circuit Judges Bazelon, Fahy and Washington vote to reverse all the convictions. Judge Bazelon files an opinion (p. 16) in which Judge Edgerton joins. Judges Fahy and Washington file a statement (p. 39). Circuit Judges Prettyman, Wilbur K. Miller and Bastian vote to affirm all the convictions. Judge Prettyman files an opinion (p. 39) in which Judges Miller and Bastian join.

1354 U.S. 449 (1957).

It is not simply a matter of hours, one way or another, but of police purpose and conduct in the light of circumstances.

Thus, confessions of guilt as to the first two counts of case No. 13069 and as to each of the two counts in Nos. 13165 and 13212 are in a different category from an admission of guilt as to the third count of No. 13069, wherein Trilling and Watts had been charged with breaking and entering a warehouse owned by Johnson & Wimsatt, Inc. Upon ample "probable cause," Trilling had been arrested solely on this charge. A police officer, a long-time friend of the family, who had had nothing to do with Trilling's arrest, after learning that Trilling had been locked up pending arraignment, confronted Trilling with the evidence against him, and he readily admitted his guilt. We believe that, under the circumstances to be set forth, the Mallory decision does not call for the exclusion of Trilling's admission. Out of sequence, turning first to this Johnson warehouse count, a majority of the court are in agreement that the conviction should be affirmed. We take up the Johnson warehouse count in Part I.

I

Working the midnight shift, from 12:00 until 8:00 A.M., September 1, 1955, Detective Trammelle and Detective Davis were patrolling in the warehouse district where there had been a series of burglaries. About 2:15 A.M., they drove up to a warehouse owned by Johnson & Wimsatt, Inc., located on Twenty-fourth Place, N. E., a dead end street. There were four or five other warehouses on that street. There, within a few feet of the Johnson warehouse, they came upon a Dodge car, headed toward the street's dead end. As the police approached, Trilling got out from behind the wheel. The police asked if it was his car and he said no, he was driving it for Watts. He produced a driver's permit and also the registration card for the car. While Trammelle talked with Trilling, the

officer noted in his book the names, permit numbers, and addresses of Trilling and Watts. Davis in the unlighted warehouse district went about with a flashlight examining the buildings but discovered no damage. Trilling and Watts were not then further detained.

The Company's yard manager, one Williams, arrived at the Johnson warehouse about 6:45 on the morning of September 1. He discovered that a window in one of the rear rooms had been broken, that the office had been ransacked, that invoices and papers had been scattered about, and that someone had attempted to open an inventory file resembling a safe. He notified police immediately.

Pursuant thereto, during the course of the day, September 1, a technician, Officer Miller, from the Identification Bureau, visited the Johnson warehouse to examine the premises for possible latent fingerprints. He discovered that a pane of glass had been broken out of a window, and he dusted with a fine camel's hair brush on the glass to pick up whatever moisture or oil or perspiration might have been left on the glass by the prowler's fingers. He explained that the powder adheres to and forms an impression where a fingerprint has been left. He found prints on the inside of the pane of glass, and thereupon brought the latent prints to the identification office where they were photographed and "blown up." He secured prints of a man's right forefinger and the right middle finger.

The next midnight roll call having been completed about 12:01 A.M., on September 2, Trammelle and Davis having reported for duty at the Twelfth Precinct, a notation was read off from the teletype from Central Headquarters that the Johnson warehouse had been entered the previous night. They went back to the Identification Bureau of the Metropolitan Police to determine whether or not fingerprints had been found at the scene by the examining officers, and then learned of Miller's discovery. Trammelle asked that the officers in the Identification Bureau check the fingerprints, and Trammelle was in

formed that the fingerprints had been identified as those of Trilling found on the premises.2 Trammelle and Davis then went looking for Trilling whom they placed under arrest at his home about 5:30 in the morning of September 2.

Officers Trammelle and Davis questioned Trilling about the break at the Johnson warehouse, both in the car on the way to the lockup and after their arrival. Trilling denied all knowledge of the episode.3 Trilling was booked at No. 12 Precinct at 7:14 A.M., September 2, 1955, and later was transferred to the Central Cell Block at 7:40 A.M. Neither Trammelle nor Davis had any further conversation with Trilling after he had been booked.

Without more, there not only was ample "probable cause" for the arrest of Trilling, but there was overwhelmingly enough evidence to sustain his conviction. If there never had been another count in this case, and if there had been no other evidence, it would seem impossible that any jury could have failed to convict Trilling of breaking into the Johnson warehouse with intent to steal.

But there was more. The blown up photographs of the fingerprints found by Technician Miller at the scene were compared with blown up photographs of current fingerprints of Trilling taken after his arrest, on September 2nd. Miller's qualifications as a technician were conceded. A bench conference established that immediate identification of the Trilling prints, found at the warehouse, could

2 Trilling's prints were already on file as a result of his conviction in June 1948, at Des Moines, Iowa, for violation of the Dyer Act.

3 Of course, a prisoner's denials are not barred, under the Mallory rule or any other; only "damaging statements" are interdicted in any event. Cf. Cohen v. United States, 144 F.2d 984, 989 (9 Cir. 1944), cert. denied, 323 U.S. 797 (1945).

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