Eugene R. Frazier v. United States , 419 F.2d 1161 ( 1969 )

SPOTTSWOOD W. ROBINSON, Circuit Judge:

This is an appeal¹ from a conviction for the armed robbery ² of the Meridian Market on August 24, 1966. The Government’s proof against appellant consisted of in-court identifications by the proprietor and an employee of the market, and an oral confession by appellant while detained by the police after his arrest. Appellant offered no evidence in his own behalf. He now argues, as he did at trial, that the presiding judge should have excluded both the confession and the identifications, and thus left the Government with a case no better than his defense.

Both confessions and identifications made while an accused is in police custody without benefit of counsel are constitutionally suspect.³ Appellant’s contentions on this appeal thus not atypically invoke doctrinal considerations that would have a vitiating effect on each prong of the Government’s presentation unless exempted by special conditions. Accordingly, we must examine closely the circumstances surrounding appellant’s confession and identifications in order to determine whether they pass the strict tests for admissibility which have been judicially prescribed.

I

Appellant was arrested at 4:15 p. m. on September 7,1966, pursuant to a warrant issued in connection with a robbery at Mike’s Carry Out, and was taken to a precinct station. Upon arrival at about 4:30 p. m., the arresting officer immediately telephoned Detective Sergeant Robert T. Keahon, of the Robbery Squad, who instructed him to book appellant and bring him directly to the Robbery Squad office at police headquarters. At a pretrial hearing, held to pass upon the admissibility of the confession, Keahon testified that all arrestees brought to a precinct station are subsequently conveyed to headquarters for processing, that is, fingerprinting, photographing and completion of the “line-up sheet.” In addition, Keahon stated that he was personally in possession of appellant’s arrest warrant, “was familiar with the case, and * * * was going to handle the case. * * * ”

The arresting officer called in a police wagon from the streets and, when it arrived, drove appellant through closing hour traffic to police headquarters, and presented him to Keahon at 5:20 p. m. Keahon ascertained that appellant had been advised of his rights¹ by the arresting officer, and read to him from a form which gave the Miranda⁴ warnings in some detail. Appellant said he understood the contents of the form, did not want a lawyer, and would obtain one the next morning if necessary. He then signed a statement to the effect that he knew his rights and did not desire the assistance of counsel.

Keahon then “started talking to him about the Mike’s Carry Out,” the offense for which he had been arrested, but before he could utter more than a few words, appellant exclaimed, “I don’t care, I want to clear Ted. Teddy didn’t do it. * * * Teddy didn’t shoot that woman in the High’s store or rob her. I did.” “Teddy,” it developed, was one Theodore Moore, who had been arrested for a robbery at a High’s Market. With that, appellant proceeded to confess, without prompting, to a series of other recent crimes, the fourth of which was the Meridian Market holdup for which he was convicted in this case. Keahon testified that he asked appellant no questions whatever about that affair except to identify the market appellant was admitting he had robbed.

The Meridian Market confession was made at 5:45 p. m. When appellant finished confessing to various other offenses, Keahon brought in witnesses to identify him.⁵ Formal processing was completed at about 7:30 p. m., and appellant was taken before the United States Commissioner on the following morning.

II

Appellant contends that his confession was inadmissible under Mallory v. United States⁶ because it was obtained during a period of unnecessary delay in his presentment before a judicial officer. The Government denies a Mallory violation and argues that, even if there were one, the confession is admissible under Title III of the so-called District of Columbia Crime Bill.⁷ We think the record raises a substantial question as to whether appellant’s transfer from the precinct station to police headquarters was an unnecessary delay in terms of contemporary judicial construction of Rule 5(a) of the Federal Rules of Criminal Procedure.⁸ We do not, however, reach that question, or the sensitive issues concerning the applicability⁹ and constitutionality of Title III which lurk behind it, because the case is properly resolvable on another basis.

Appellant attacks his confession on Miranda¹⁰ as well as Mallory grounds, alleging that he did not effectively waive his Fifth Amendment privilege against self-incrimination. Our decisions have recognized the importance of inquiry as to whether the accused was effectively apprised of his rights when the admissibility of a confession under Mallory is at stake.¹¹ And as we recently observed in Naples v. United States,¹² which involved a pre-Miranda confession, the evolution in our understanding of Mallory has

“paralleled the visible movement by the Supreme Court towards the application of Fifth and Sixth Amendment considerations to the pre-arraignment period. That movement culminated, of course, in Miranda, in the shadow of which Rule 5 (a) now resides and which has probably made academic problems of the kind we confront on this record.”¹³

Now we must consider directly the effect on Mallory of a Miranda that has come of age.

Although not explicitly premised on constitutional grounds, Mallory has been ultimately concerned with effectuation of Fifth and Sixth Amendment protections against the dangers of involuntary self-incrimination in stationhouses and with the other evils inherent in police interrogation of an accused in secret.¹⁴ “[T]he delay [in presentment before a magistrate],” Mallory admonished, “must not be of a nature to give opportunity for the extraction of a confession.”¹⁵ Its parent opinion, McNabb v. United States,¹⁶ rested on the proposition that

“[legislation [comparable to Rule 5 (a)] * * *, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘third degree’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime.” ¹⁷

Mallory itself has stood guard against not only the “third degree,” but also “the pressures in a Police Station upon prisoners under secret interrogation without counsel, relative or friend.”¹⁸ These, of course, are precisely the concerns of Miranda.

The Mallory solution for these iniquities was enforcement by an exclusionary rule of the requirement that the accused be brought “before a judicial officer as quickly as possible so that he may be advised of his rights * * ¹⁹ But this remedy was at best imperfect because some delay in presentment is unavoidable and, as Mallory concedes, additional delays for some purposes may be justifiable.²⁰ Such postponements are, of course, as susceptible to abuses as any others, and experience has exemplified the difficulty inherent in ascertaining either the real purpose of a challenged delay or the actual nature of interrogations carried out behind closed stationhouse doors.²¹

In Miranda, the Supreme Court eschewed this uncertain detour through Rule 5(a) and attacked the problem of custodial interrogation directly. It held that the accused is entitled to the assistance of counsel before he is questioned and, in effect, that any confession he makes while in exclusive police custody prior to arraignment is presumptively inadmissible under the Fifth and Sixth Amendments. Such confessions can stand if, but only if, the accused affirmatively and understandingly waives his rights, and the Government bears “a heavy burden” in attempting to show such a waiver.²²

Thus, absent convincing evidence of waiver, no confession may be admitted, regardless of the dispatch with which the accused is presented before a magistrate. Conversely, should the Government carry its burden, we think it follows that the confession is not inadmissible solely on the ground that the accused was not taken before a magistrate at the earliest possible moment. A valid Miranda waiver is necessarily, for the duration of the waiver,²³ also a waiver of an immediate judicial warning of constitutional rights.²⁴ And what Miranda, as a constitutional interpretation, leaves an accused at liberty to yield, he may, we believe, forego equally under Mallory.²⁵ Provided the exacting standards for waiver are met, the overriding purpose of Mallory has been served.²⁶

By no means is this to say that unjustified delay in compliance with Rule 5(a) has no bearing on the admissibility of a confession forthcoming during a period of such delay. As Miranda made clear,

“[w]hatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.” ²⁷

Thus, the greater the tardiness in presentment prior to a confession, the heavier the Government’s already “heavy burden” of showing effective waiver. Certainly some conceivable delays are so long that no subsequent confession could be deemed the product of voluntary waiver. And nothing in Miranda affects the admissibility vel non of evidence of any sort obtained during detention following an illegal arrest.²⁸

III

Thus the vital question here is whether appellant voluntarily and understandingly waived his Miranda rights. If he did not, his confession was inadmissible under Miranda. If he did, the confession was admissible even if the purpose inspiring his transfer to police headquarters was interrogation for the production of evidence.²⁹

The record discloses that appellant objected when, as he began his string of confessions, Sergeant Keahon started to take notes on his confession. How strenuously he objected does not appear, but it is noteworthy that Keahon stopped writing at that point. He testified entirely from memory to the details of the confession, which was made a year before the trial began, explaining that

“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.” ³⁰

The strong implication is that appellant thought his confession could not be used against him so long as nothing was committed to writing. If, as his avowed motive for confessing suggests, he was brooding over a guilty conscience while the warnings were being given, he might well have failed to absorb their message. Or he may simply have been laboring under the common misapprehension that the police could not use in court anything he said unless they were able to introduce a written statement. Whatever the reason, the evidence raises a serious question as to whether he intelligently waived his right to remain silent.³¹

Appellant was given the Miranda warnings in their entirety. He signed what purported to be an express waiver. If there were no other evidence in the record, the Government would have discharged its burden, and no further inquiry would be necessary. But while “[a]n express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver,”³² Miranda teaches that in many circumstances it does not.³³ Here, Sergeant Keahon’s testimony suggests powerfully that the waiver was not understandingly made; in addition, the hour appellant spent in custody before the ceremonial “waiver” casts doubt on whether it was voluntarily made. Since the Government offered no evidence to dispel these doubts, we cannot say on this record that it carried its “heavy burden * * * to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination * * ³⁴

The Government argues, however, that because the question was not raised below, appellant should not be allowed to present it here. We disagree. Appellant’s counsel³⁵ was initially confronted with the signed waiver and what appeared to be a spontaneous confession. It is scarcely surprising that he prepared a Mallory, not a Miranda, argument. The evidence connoting that appellant did not understandingly waive his rights did not develop until the direct examination of Sergeant Keahon. Defense counsel then made an apparent attempt to raise the issue in a general way, but the matter was lost in the Mallory argument he was pursuing. We do not demand more of appellants as a condition to litigation of issues fundamental in the criminal process.

Nonetheless, because the Government had no clear warning that it would need to produce more evidence, we are reluctant to reverse for a new trial. Appellant’s ban on note-taking inveighs against intelligent waiver, but this inference might be overcome, for example, if Sergeant Keahon admonished him that even an oral confession would be used against him, and appellant replied that he knew that but still did not want anything written down. Absent some additional evidence, comparable in quality, of understanding waiver, however, his confession cannot stand. Accordingly, we shall remand the record in this case to the District Court for an evi-dentiary hearing and findings of fact on the validity of appellant’s purported waiver.³⁶

IV

Appellant also contends that the trial judge erred in permitting two eyewitnesses to the Meridian Market robbery to identify him at the trial as a participant. His argument is that these in-court identifications were products of prior extrajudicial identifications made in circumstances so unnecessarily suggestive and promotive of faulty recognition as to impinge on due process of law.³⁷ We deferred our disposition of this case to enable evaluation of appellant’s claim in the light of the recent Clemons ³⁸ decision by the full court.

One, but only one, of the pretrial episodes complained of falls within the area of constitutional condemnation. More than a month after appellant’s arrest, Louis I. Rezniek, the owner of the market, and William Simpson, an employee, both of whom were present when the holdup occurred, viewed appellant while confined in a cellblock. Appellant was the only person they were shown, and both witnesses knew at the time that appellant had confessed. As the Government now itself characterizes the incident, this single-suspect cellblock confrontation was “indeed suggestive”; so much so, we hasten to add, as to render it offensive to due process.³⁹

The Government, however, did not rely upon the out-of-court identifications at the trial.⁴⁰ The question, then, is whether the in-court identifications had a source sufficiently independent of the cellblock exhibition as to be free from its taint.⁴¹ The trial court found that there was no taint, and we deem the evidence adequate to support that finding.⁴²

Reznick and Simpson each testified at trial that they remembered appellant from impressions received at the time of the robbery. The offense was perpetrated by two men during daylight hours over a period of several minutes during which both Reznick and Simpson had excellent opportunities to scrutinize the two robbers. Afterwards, they gave the police detailed joint descriptions of the culprits, one of which depicted appellant reasonably well. In addition, Rez-nick selected appellant’s photograph out of “a box of pictures” given him by the police shortly after appellant’s arrest. This evidence, we hold, was sufficient to support the finding that Reznick’s identification was not tainted by the cell-block confrontation.⁴³

As to Simpson, who made no prior photographic identification, the proof on independent source for his in-court identification included a very significant event. On the night of appellant’s arrest, Simpson was brought to police headquarters to identify him. According to the uncontradicted testimony of Detective Keahon,

“when Mr. Simpson walked into the office, he saw Frazier and he said: There’s the man that approached me in the back and stated, this is a holdup. And at the same time the Defendant Frazier shook his head; and I asked him what did he mean by shaking his head; and he said: Yes, that is the man that was behind the meat counter.”

Ordinarily, an identification arising out of so suggestive a confrontation would itself be constitutionally dubious.⁴⁴ Here, however, not only did Simpson identify appellant, but appellant also identified Simpson. There can be no doubt on the record that by “the man that was behind the meat counter,” appellant referred to Simpson’s presence there at the time of the robbery. At this juncture, his urge to confess was so strong that he even acted out one of the other holdups to which he had confessed in order to convince hesitant eyewitnesses to that crime that he had indeed been the perpetrator. His statement, however, is relevant here, not because it is evidence of guilt and thus, indirectly, of the reliability of Simpson’s identification, but rather because it tends directly to confirm the existence of an independent source for the challenged identification. And, with this, there could hardly be any “substantial likelihood of irreparable mistaken identification.” ⁴⁵

We remand the case to the District Court for proceedings consistent with this opinion.

Remanded.

1 . Heard together with No. 21,427, Bry-son v. United States, now pending before this court, which is an appeal from a conviction for the same offense.

2 . D.C.Code § 22-2901 (1967 ed.), since amended (Supp. I 1968).

3 . As to confessions, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977 (1964). As to identifications, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 E.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

4 . Miranda v. Arizona, supra note 3, 384 U.S. at 467-473, 86 S.Ct. 1602.

5 . This aspect of the case is discussed infra, pt. IV.

6 . 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

7 . 81 Stat. 734, 735-736 (1967). Title III in pertinent part provides:

“Sec. 301(a) Any person arrested in the District of Columbia may be questioned with respect to any matter for a period not to exceed three hours immediately following his arrest. Such person shall be advised of and accorded his rights under applicable law respecting any such interrogation. * * *

“(b) Any statement, admission, or confession made by an arrested person within three hours immediately following his arrest shall not be excluded from evidence in the courts of the District of Columbia solely because of delay in presentment.”

8 . “An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available commissioner or before any other nearby officer empowered to commit persons charged with offenses against the laws of the United States. * * * ” F.R.Crim.P. 5(a).

9 . The question is whether the statute operates retroactively to require admission of a confesson obtained prior to its enactment in the course of an unnecessary delay in presenting an accused before a judicial officer.

10 . Miranda v. Arizona, supra note 3.

11 . See Naples v. United States, 127 U.S. App.D.C. 249, 258, 382 F.2d 465, 474 (1967), and cases cited in n. 10. In Alston v. United States, 121 U.S.App.D.C. 66, 67-68, 348 F.2d 72, 73-74 (1965), Judge McGowan, in his separate opinion, deemed the fact that appellant “was not, prior to his interrogation, informed of his right to remain silent or of the fact that such answers as he chose to give might be used against him” at trial a “decisive consideration” in his conclusion that Mallory required barring of the confession.

12 . Supra note 11.

13 . 127 U.S.App.D.C. at 258, 382 F.2d at 474.

14 . Spriggs v. United States, 118 U.S.App. D.C. 248, 251, 335 F.2d 283, 286 (1964).

15 . 354 U.S. at 455, 77 S.Ct. at 1360.

16 . 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943).

17 . Id. at 343-44, 63 S.Ct. at 614.

18 . Spriggs v. United States, supra note 14, 118 U.S.App.D.C. at 250, 335 F.2d at 285.

19 . 354 U.S. at 454, 77 S.Ct. at 1359. Mallory and its progeny have also voiced concern at the possibility that police may interrogate, or otherwise use a delay in presentation before a magistrate, to obtain probable cause to support the arrest. Whenever it appears that an arrest was made without probable cause, a question may arise independently of Mallory as to whether evidence subsequently obtained in violation of Rule 5(a) must be excluded as fruit of the illegal arrest. See Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968); Bynum v. United States, 104 U.S.App. D.C. 368, 262 F.2d 465 (1958). Mallory, however, which applies regardless of the legality of the arrest, and which has been read to exclude only testimonial evidence, see cases cited in Adams, supra, 130 U.S. App.D.C. at 205, n. 4, 399 F.2d at 576, n. 4, is ill-suited for more than incidental impact on that problem.

20 . 354 U.S. at 455, 77 S.Ct. 1356. See also Alston v. United States, supra note 11, 121 U.S.App.D.C. at 68, 348 F.2d at 74 (opinion of Judge McGowan).

21 . Compare the majority with the dissenting opinions in, e. g., Coor v. United States, 119 U.S.App.D.C. 259, 340 F.2d 784 (1964), cert. denied 382 U.S. 1013, 86 S.Ct. 621, 15 L.Ed.2d 527 (1966); Muschette v. United States, 116 U.S. App.D.C. 239, 322 F.2d 989 (1963), vacated on other grounds 378 U.S. 569, 84 S.Ct. 1927, 12 L.Ed.2d 1039 (1964); Heideman v. United States, 104 U.S.App. D.C. 128, 259 F.2d 943, cert. denied 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1958). This case itself is illustrative of the difficulty: the police practice of processing at headquarters persons arrested at the precinct may or may not be essential to efficient police administration ; if it is essential, it nonetheless presents obvious opportunities for improper interrogation.

22 . After the warnings have been given “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. * * * This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458 [58 S. Ct. 1019, 82 L.Ed. 1461] (1938), and we re-assert these standards as applied to in-custody interrogation.” Miranda v. Arizona, supra note 3, 384 U.S. at 475, 86 S.Ct. at 1628.

23 . A valid waiver ceases to be effective whenever the accused indicates in any manner that he wishes to remain silent or that he wants an attorney. Miranda v. Arizona, supra note 3, 384 U.S. at 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694.

24 . Miranda implicitly assumes that it is possible for the police to convey to the accused sufficient understanding of his rights to enable him to make an intelligent waiver. A police warning, to be effective, must be given with proper solicitude for actual understanding. Moreover, a waiver made in the coercive atmosphere of police custody is less likely to be voluntary than one made before a commissioner. Thus the Government carries such a weighty burden of proving waiver in cases involving confessions to the police. But irrespective of who gives the warnings or takes the confessions, the ultimate question is whether the waiver is voluntary in the full sense of the word. If an accused did not understand what a magistrate told him, an ensuing confession would not be rendered admissible because he had been advised of his rights by a judicial officer. Similarly, under Miranda, a waiver may be valid even though made on the basis of police warnings.

25 . We do not conclude, however, that in waiving his right to remain silent, the accused also impliedly waives his right to complain of a prior violation of Rule 5(a). Bather, we construe Mallory not to require exclusion of an otherwise admissible confession because of a brief delay in obtaining a Miranda waiver.

26 . Rule 5(a) also confers upon the accused a prompt opportunity to persuade a magistrate, at a preliminary hearing under Rule 5(c), that there is no prohable cause for holding him. While, of course, that policy remains in force, see Adams v. United States, supra note 19, 130 U.S.App.D.C. at 208, 399 F.2d at 579, Mallory has enforced it only coincidentally, since it has no effect if no incriminating evidence is obtained as a result of the delay, and since it has been read not to apply where the unnecessary delay in presentment to a magistrate occurs after a confession. Coor v. United States, supra note 21, 119 U.S.App.D.C. at 260, 340 F.2d at 785, Bailey v. United States, 117 U.S.App.D.C. 241, 328 F.2d 542, cert. denied 377 U.S. 972, 84 S.Ct. 1655, 12 L.Ed.2d 741 (1964); Lockley v. United States, 106 U.S.App. D.C. 163, 270 F.2d 915 (1959); Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685, 692 (1958), cert. denied 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959) ; and see United States v. Mitchell, 322 U.S. 65, 70-71, 64 S.Ct. 896, 88 L.Ed. 1140 (1944).

If probable cause is found, Rule 5(a) still serves to promote early consideration of an accused’s admission to bail. This function of the rule has taken on added importance with the enactment of the Bail Reform Act, 80 Stat. 214 (1966), 18 U.S.C. § 3146 et seq. But for the same reason that Mallory has little relevance to the goal of assuring expeditious determination of the existence of probable cause, it is not a significant antidote to the problem of delays in bail hearings.

Rule 5(a) also serves to provide early warning by a magistrate of the right to counsel, which may be important in protecting an accused’s interest at a line-up. See Williams v. United States, — U.S.App.D.C. —, 419 F.2d 740 (Dec. 20, 1968). Thus, identification evidence obtained in the absence of counsel may be excluded independently of the rules of United States v. Wade, Gilbert v. California, and Stovall v. Denno, all supra note 3, if it is obtained during an “unnecessary delay” in presentment. If the right to counsel has been validly waived under Miranda, however, this issue will not arise. Moreover, even in the absence of a waiver, if counsel was in fact present at the challenged confrontation, and if the resulting identification is otherwise admissible, Mallory does not require its exclusion because of a violation of Rule 5(a). Williams v. United States, supra, 136 U.S.App.D.C. at —, n. 9, 419 F.2d at 746, n. 9.

27 . 384 U.S. at 476, 86 S.Ct. at 1629.

28 . See note 19, supra.

29 . Cf. Naples v. United States, supra note 11.

30 . We cannot agree with our dissenting colleague (infra p. 1176) that “[t]he record raises the possibility that the only statements put into evidence were those made prior in time to Appellant’s alleged equivocations.” The confession at issue was the fourth in a series made by appellant to Sergeant Keahon, who testified that appellant put a stop to note-taking “[a]t the beginning of his admission,” when he was narrating the first robbery in the series. If Sergeant Kea-hon was not admonished about note-taking until after the challenged confession was given, we must disbelieve his explanation as to why he had no notes concerning it.

31 . The thrust of Miranda is that in order to permit “a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights * * *.” 384 U.S. at 467, 86 S.Ct. at 1624 (emphasis added). Specifically included among the warnings the Court found essential to an adequate apprisal is notice of the fact that “anything said can and will be used against the individual in court.” Id. at 469, 86 S.Ct. at 1625. This warning is needed in order to make him aware of the consequences of foregoing his privilege not to speak. “It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege.” Id. And as this explanation suggests, a warning is not effective if it is not understood. Thus, contrary to the thesis of the dissent, incriminating statements may be involuntary, and thus “compelled” within the meaning of the Fifth Amendment, even where the police are not at fault. Cf. note 24, supra. See Procter v. United States, 131 U.S.App.D.C. 241, 243-244, 404 F.2d 819, 821-822 (1968).

32 . Miranda v. Arizona, supra note 3, 384 U.S. at 475, 86 S.Ct. at 1628 (emphasis added).

33 . Id. at 475-76, 86 S.Ct. 1602, 16 L.Ed. 2d 694.

34 . Miranda v. Arizona, supra note 3, 384 U.S. at 475, 86 S.Ct. at 1628.

35 . Not his counsel on this appeal.

36 . Appellant, of course, may wish to testify at that hearing. See Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Bailey v. United States, 128 U.S.App. D.C. 354, 389 F.2d 305 (1967).

37 . See Stovall v. Denno, supra note 3, 388 U.S. at 302, 87 S.Ct. 1967; Simmons v. United States, supra note 36, 390 U.S. at 384, 88 S.Ct. 967; Wright v. United States, 131 U.S.App.D.C. 279, at 282-285, 404 F.2d 1256, at 1259-1262 (Jan. 31, 1968). Since the pretrial identifications occurred before the decisions in United States v. Wade and Gilbert v. California, both supra note 3, the fact that appellant was then unrepresented by counsel does not establish a constitutional violation. Stovall v. Denno, supra note 3, 388 U.S. at 300, 87 S.Ct. 1967.

38 . Clemons v. United States, 133 U.S.App. D.C. 27, 408 F.2d 1230 (en banc Dec. 6, 1968).

39 . Id. at 38, 42, 46-47, 408 F.2d at 1241, 1245, 1249-1250.

40 . The jury did hear a reference to the cellblock confrontation during the direct examination of Reznick. However, even if Reznick’s reference amounted to an unintentional introduction into evidence of the out-of-court episode, there was no . error if this identification, like its in-court sequel, had an “independent source.” Clemons v. United States, supra note 38, 133 U.S.App.D.C. at 45, 408 F.2d at 1248.

41 . United States v. Wade, supra note 3, 388 U.S. at 240, 87 S.Ct. 1926, 18 L.Ed. 2d 1149; Gilbert v. California, supra note 3, 388 U.S. at 272, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Clemons v. United States, supra note 38, 133 U.S.App.D.C. at 34, 408 F.2d at 1237; Wright v. United States, supra note 37, 131 U.S. App.D.C. at 284, 404 F.2d 1261.

42 . In Clemons v. United States, supra note 38, 133 U.S.App.D.C. at 33, 38 of 408 F.2d 1236, 1241, we emphasized the importance of the trial court’s considered judgment on this question in the absence of further enlightenment by the Supreme Court. See also id., opinion of Judge Leventhal, 133 U.S.App.D.C. at 49, 408 F.2d at 1252.

43 . The reliability of Reznick’s in-court identification is additionally supported by appellant’s concession that Simpson had correctly 'identified appellant as a participant in Meridian Market robbery. See the text infra at note 45.

44 . Compare Clemons v. United States, supra note 38; Wright v. United States, supra note 37, 131 U.S.App.D.C. at 56, 404 F.2d at 1259.

45 . Simmons v. United States, supra note 36, 390 U.S. at 384, 88 S.Ct. 967, 19 L. Ed.2d 1247; Clemons v. United States, supra note 38, 133 U.S.App.D.C. at 47, 408 F.2d at 1250.