COPPOLA v. UNITED STATES

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Argument of William B. Mahoney

Chief Justice Earl Warren: -- Coppola, Petitioner, versus United States.

Mr. Mahoney.

Mr. William B. Mahoney: Mr. Chief Justice and members of the Court.

The writ in this particular matter covers two judgments, the petitioner, after separate trials, having been convicted of the federal statute relative to bank robberies and incidental crimes.

The question presented here arises from the fact that the petitioner, Coppola, made an oral and a written statement to federal officers while he was being illegally detained in the custody of the Buffalo Police Department in violation of Section 165 of the Code of Criminal Procedure of the State of New York.

The question presented here is as to whether or not that oral and written admission were admissible under the principle of Anderson against the United States in which case the McNabb rule of exclusion was applied to a statement made to a federal officer while be -- being illegally detained by the sheriff of the State of Tennessee.

And a further question arises, namely, that irrespective of the collaboration and the working agreement that was mentioned in the Anderson case and was the basis for that particular decision, whether or not in the interest of fair play that the oral and the written statement were inadmissible because of the fact that they were held illegally.

That is, the petitioner was held illegally after an arrest on suspicion as well as being detained in violation of the code provision that I've just mentioned to the Court.

In this particular situation --

Justice John M. Harlan: This -- this --

Mr. William B. Mahoney: -- there were two indictments --

Justice John M. Harlan: This is not a coerced confession case.

Well, I understand (Voice Overlap) --

Mr. William B. Mahoney: It's not a coerced, no, Your Honor.

It's the illegal detention under the Anderson and the McNabb rule.

There were two indictments returned against the petitioner and others.

The first indictment charged that on February 15th of 1956, the petitioner and an individual by the name of D'Antuono, entered a branch bank of the Manufacturers and Traders Trust Company in the City of Buffalo, New York and that they escaped with something in or around $50,000.

The indictment charged the petitioner and D'Antuono when actually committing that particular crime.

The second indictment that was returned at the same time had to do with a different date, namely October 2nd, 1956.

It was a different bank, the Liberty Branch or a branch of the Liberty Bank of Buffalo and in that particular indictment, the petitioner was not accused of having perpetrated the robbery of the bank.

That part of the indictment was directed against the same D'Antuono as well as three other individuals; John Roche, Millio, and Simmons, but there were three additional counts in that indictment that accused the defendant of aiding and abetting in that particular matter.

As I said, there were two separate trials.

The defendant was found guilty in both of them, was sentenced to 20 years, the second sentence to run consecutively -- consecutively with the first.

Now, relative to the M. & T. and I'd like to approach that in as much as the earliest in time, on February 15th of 1956, the M. & T. Branch Bank was entered by two men, both of whom were masked.

Money was taken and there was an escape.

As early as February 27th of 1956, that's approximately 12 days after, the petitioner was taken into custody by the Federal Bureau of Investigation in the City of Buffalo, New York.

And while he was merely held at their office, a telephone call was made to the officers of the bank instructing them that at the close of the business hours on that particular day that they should hold their employees in the same positions that they were in on February 15th when the holdup occurred.

And after that arrangement was made, the petitioner was taken to the locale of the M. & T. Bank.

And when the F. B. I. men got him out there in the east side of the city, they handed him a silk stocking and told him to pull it over his face.

And after he had done that, the door was opened, and of course this was after the banking hours of the day.

The door was opened and the F. B. I. gave him directions to hold his hand in this particular fashion to enter into the bank.

And then, they directed him to follow their instructions which were the substance of what had been given to the F. B. I. by the employees of the bank on the 15th of February, 1956, the day the holdup occurred.

As a result of it, the petitioner followed the instructions of the F. B. I. and he went around the bank, he approached the manager then the assistant manager, then the cashier's cages, he did certain things relative to drawers, and then he also followed their instructions until he got outside of the bank.

When they --

Justice Potter Stewart: How long after the robbery did this occur, Mr. Mahoney?

Mr. William B. Mahoney: Approximately 12 days Your Honor, the difference between February 15th and February 27th of 1956. When he got outside of the bank, the petitioner was released by the F. B. I. Investigation, of course, as you can readily appreciate, followed from that particular time, but with no molestation as far as actual custody interrogation of the petitioner was concerned.

Now, as to the Liberty Bank, we have a situation where the petitioner was not an actual participant but nevertheless, he was accused of being an aider and an abetter.

When these cases came on for trial and they came on for trial, the first of them in July of 1957, we had testimony in the M. & T. Bank case that emanated from witnesses, one of whom was a man by the name of Byars.

And Byars was a deputy sheriff of the County of Erie who was doing some undercover work for the F. B. I. and he testified as to some admissions that the petitioner had made to him concerning the M. & T. or the Manufacturers and Traders Bank job and in addition to it, D'Antuono, the co-defendant in the M. & T. job, testified for the Government.

And then Gordon Eddy and a man by the name of Jensen, two members of the F. B. I. testified after a preliminary hearing without the presence of the jury, testified as to an oral and a written confession that they secured from the petitioner in the Buffalo police headquarters on the night of January 10th, 1957.

Now, that's approximately 11 months after the commission of the crime and approximately 10 1/2 months from the time that the petitioner had reenacted the crime at the direction of the F. B. I.

After the hearing without the presence of the jury, the Court decided as a matter of law that there was no illegal detention and just brushed aside the fact that Anderson against the United States, McNabb against the United States were not applicable.

In the Liberty Bank job, it was practically the same type of testimony, Byars again, the deputy sheriff having testified, D'Antuono, and again Eddy after an examination of Mr. Eddy out of the presence of the jury, the Court ruled as a matter of law that there was no unnecessary delay that there was no application of the Anderson Rule.

Before a panel court in the Second Circuit, both judgments were reversed with one judge dissenting and they reversed on the grounds that the factual picture in the Coppola cases, both of them, that the confessions were improperly received in evidence under the authority of Anderson against the United States.

At that particular time, Judge Moore indicated a dissent in July of 1959 with the statement that an opinion would follow later.

That opinion was never handed down until December 4th of the same year.

That was the same day that the Court of Appeals granted the application of the Government for a hearing en banc and that order was dated December the 4th, 1956, which was the date of Judge Moore's dissenting opinion.

Before the Court en banc, which was made up at that time of five members, the Court affirmed the judgment of the lower court with two judges dissenting, Judges Waterman and Clark and they held that there was -- the Anderson rule was not applicable, and that what the F. B. I. members had done with the local police, were consistent with normal police procedure and affirmed.

Now, in addition to the factual picture here, I've referred to Byars the special deputy sheriff of the County of Erie.

The testimony in the case shows that as early as November 5, 1956, which was approximately two months before the petitioner's arrest that Byars had conversed with the petitioner.

And that the petitioner had made the admission to Byars about complicity in the Manufacturers and Traders robbery.

And that he was making written reports to the F. B. I. and the testimony is positive that throughout November and December of 1956, the Federal Bureau of Investigation had received a number of reports relative to the so-called admissions -- excuse me -- that had been made by the petitioner, Coppola, to Byars.

Now, as of January 7 of 1957, special agent Roche and I might say, Your Honors that the special agent Roche that I refer to is one of the three prime movers of the members of the Federal Bureau of Investigation, whose conduct in the Anderson case was construed as making or carrying out a working arrangement with state police in the Anderson case itself, Roche having taken three of the statements in the Anderson case back in 1940.

Now, a special agent in charge of the Buffalo office and having Byars report in his possession of having as the proof shows here that Roche testified without the presence of the jury that we and the Buffalo police from the time of the robbery in February, 1956 up to and including January 7, when Roche contacted the Buffalo police, that we worked this case mutually.

Whenever we had a problem that we were confronted with, we assigned an agent and a police officer to work it out and they worked it out between them.

And in connection with that, the examination of Roche that was being conducted was so surprising to the Court and although the record has sufficiently close Your Honors that it never shows any inflection of a voice whatsoever, and I respectfully refer you to page 112 of the record and this was the examination that was being conducted by myself and it starts right at the top of the page.

But Your Honors will notice at approximately the middle of the page while I'm examining this officer about the cooperation that occurred between February of 1956 and the time of the arrest which was January 10, 1957, I asked him, “And during the investigation, you would -- cooperated more or less with the local authorities and they with you?”

“That's correct.”

Then I asked him, “When I say cooperated, you'd relay information to them” and here's his answer.

“Well, we worked very closely with the Detective Bureau of the Buffalo Police Department and we worked the case mutually.”

And you worked very closely and the Court exclaimed at that time to the agent on the stand, “What are you saying?”

In spite of the fact that the Court evidently was somewhat surprised at the utterances that were being made by special agent Roche of the F. B. I. at that time, you will find at page 113 and it's the second question from the top, “What was the type of your conduct?”

His answer is, “If we had any information we wanted to work on mutually, we would work with the detectives and we would assign a detective and an agent together to work it out.”

“And that was done relative to the M&T stick up, was it not, ”answer, “Correct.”

Now, that's the part that -- of the collaboration and the cooperation and the working arrangement that was in existence for a period of eight, nine, or 10 months from February 1956 up to and including January of 1957.

In addition to that, you have what I've referred to of Byars, the special deputy sheriff, that he had been making these written reports to the F. B. I. in November and December of 1956.

Now, we approach 1957, January.

On January the 5th of 1957, Roche contacts Chief Golombeck or Chief of Detectives Golombeck, of the Buffalo Police Department.

He makes a query of them as to whether or not, there's an unsolved crime on their books involving one Paul, that's all the information that was given.

Golombeck's retort was to the effect that yes, we have a situation on our book and for a -- relative to a Redlinski and with that information, then Roche at his office in the F. B. I. takes photographs of the petitioner and two others and takes them over the headquarters to Golombeck and at that particular time, there's testimony here coming from Golombeck to the effect that an identification was made by Redlinski of the petitioner.

Now, that was January 7th, 1957.

In spite of the identification that appears in the record, nothing was done by the Buffalo police as far as the petitioner was concerned.

He wasn't bothered on the 7th.

He wasn't bothered on the 8th, nor on the 9th of January of 1957.

Not content with that, on January the 9th of 1957 and this is not stated to the Court as any criticism of the Federal Bureau of Investigation for making such a report, but on January 9th, 1957, Roche again calls Golombeck and tells him that we have some information that there's going to be a robbery tomorrow morning on the east side of the City of Buffalo.

And in addition to Roche informing the -- Golombeck of that fact, he also testified that he went to the office of John Dwyer, the District Attorney of Erie County and informed him of the same fact and also told Mr. Dwyer that we are investigating Coppola, the petitioner, relative to the Manufacturers and Traders stickup in February, 1956 and the Liberty Bank stickup in October of 1956.

The following morning, Golombeck takes four or five different squads and fans them out around the eastside of the City of Buffalo.

At approximately 10 am in the morning with a shotgun in the hands of one officer and with Golombeck and Harry Klenk, who is head the homicide squad, they ordered the petitioner and two others, D'Antuono and Simmons over to occur.

Justice Charles E. Whittaker: Where did they find them?

Mr. William B. Mahoney: On a street, in an automobile.

Justice Charles E. Whittaker: That was near the place that you had information to be robbed?

Mr. William B. Mahoney: In the -- in the vicinity of it, yes.

When I say blocks, I want that fairly clear to the Court.

They admit that the arrest was on suspicion.

There's no doubt about that, Harry Klenk admits that in the testimony, Golombeck admits it in the testimony.

They admit they had no warrant for the arrest of the petitioner and there's nothing in this testimony that indicates that Golombeck was making an arrest because of an identification that was made on the 7th of January by Redlinski of the petitioner.

He does say, that as Golombeck does say in his record that he knew that an officer had the authority or the right to make an arrest for a felony not committed in his presence if he had reasonable grounds to believe it had been committed.

That's as far as Golombeck would go in his testimony.

Justice John M. Harlan: Are you -- are you arguing, Mr. Mahoney that the state arrest was at the request of the F. B. I.?

Mr. William B. Mahoney: Yes, Your Honor.

That as a result of this not at the -- when you say request, I would like to make my position --

Justice John M. Harlan: (Voice Overlap) Roche had told Golombeck was your argument that that was all French for saying that police arrest him and the F. B. I. --

Mr. William B. Mahoney: In other words, what I'm saying is they didn't come out and give many mandate or command.

You go out and arrest Coppola and hold him in your custody until we get an opportunity.

Justice John M. Harlan: The lower courts found to contrary of it?

Mr. William B. Mahoney: The panel court found to the contrary that it had -- the arrests have been made at the suggestion or the request of the working arrangement and the collaboration.

Then the En Banc Court overturned that, three judges stating that there was insufficient to bring it within the Anderson rule and there were two dissents in that.

Justice Tom C. Clark: When did you first raise it in court?

Mr. William B. Mahoney: When did I first raise that, Your Honor?

Justice Tom C. Clark: Yes.

Mr. William B. Mahoney: In the trial itself.

That's why just as soon as they swore, federal agent Eddy, I objected and asked for a hearing without the presence of the jury.

And that hearing was conducted not only in the M. & T. Bank case, but it was also conducted in the Liberty Bank case.

Both of those hearings took place without presence of the jury.

Justice Tom C. Clark: The Government claims that you did not (Inaudible)

Mr. William B. Mahoney: No.

If Your Honor -- what the Government claims in this particular case is that a -- a question arose that first came in the second case which was the Liberty Bank case and at that particular time, Assistant District Attorney Browton who was trying the case for the Government utilized the word that I made a claim that the arrest was made at the behest of the F. B. I., and I asserted that I did not make that claim.

And the word behest that was used to be perfectly candid with the Court, my only contact with it had been that it meant some kind of a command or a mandate.

But knowing that Roche was one of the agents in the 1940 case that came before this Court and that's Anderson against the -- Anderson against the United States, I think you can readily appreciate that knowing that and even if I didn't know it, I wouldn't ask an officer, “Did you command or did you direct or did you mandate that” because the stereotype answer that you generally receive is in the negative and certainly, I don't think count --

Justice Tom C. Clark: You claim they're working together?

Mr. William B. Mahoney: Yes, Your Honor.

I do when I say that Mr. Roche's testimony relative to the working together the assigning of a -- an F. B. I. agent with the detective to work out the details throughout the entire year of 1956 is a very strong indication of the fact that they were working together.

Justice Tom C. Clark: That one is on this case.

Mr. William B. Mahoney: Pardon me.

Justice Tom C. Clark: Is that on this case?

Mr. William B. Mahoney: Yes, Your Honor.

It was on the M. & T. case.

It wasn't on anything at that particular time that had to do with a state violation unless you would want to bring into this particular picture that the robbery of a bank is both a violation of a federal statute as well as a state.

That has been urged by the Government in this case, but what they were working on was that Roche was the one that was directing the activities to solve the M. & T. and the Liberty Bank.

And it was he who is contacting Golombeck and assigning his agents to work with the detective, and the police assigning the detective to work with an F. B. I. agent in order to get out a solution to those particular crimes.

Now, as I say that on January 10th, the arrest was made, and it was made by these particular officers.

And may I say to you that just as soon as the arrest was made by Detective Chief Golombeck and the head of the homicide squad, and this is brought out through the testimony of Agent Roche prior to the time that they've delivered the petitioner and the two others to the headquarters, Golombeck from his car or from a stop they made phones Roche at the office of the F. B. I., “We've made the arrest and we're on our way to headquarters.”

In other words, that the statement was made by Golombeck to Roche by telephone that “We've arrested the petitioner and the others and we're on our way to headquarters.”

That was at approximately 11 o'clock or within an hour after the man had been taken over to the side of the street itself.

Before noon on that particular day, January 10th, 1957, Roche leaves F. B. I. headquarters and he's into the Chief of Detectives Office in the Buffalo Police Department and as I say, that was shortly before noon.

Now, may I say this to you that Roche definitely admitted in his examination and you will find this in the record at 107 and 108, and that is that they were on their way to headquarters and in connection with that, may I call your attention to the record of 115 and 116 wherein Roche said in substance that he expected such a call from Golombeck if anything developed.

Now, as I say, shortly before noon, you have Roche in headquarters and he went over there, and this is the purpose for which he went over and again, I respectfully call your attention to the Record 113 and 114 and you will find there that Roche said his purpose in going to police headquarters was to find out if anything occurred as to the M. & T. Bank, the Liberty Bank, and the branch of the Marine Trust as it developed that there was some conversation between Byars and Coppola relative to an anticipated foray in the future involving the Marine Trust, but that has never materialized and this is the sole reference to it in the record itself.

Chief Justice Earl Warren: When they were arrested on that morning, was -- were they -- were they equipped to commit any robbery?

Mr. William B. Mahoney: They found nothing on them, Your Honor with the exception of some keys.

Chief Justice Earl Warren: Some what?

Mr. William B. Mahoney: Keys.

Chief Justice Earl Warren: Keys.

Mr. William B. Mahoney: Keys.

They had no weapons, no instruments of any kind and it's conceded by both Golombeck and Klenk who were the two prime arresting officers, there was a third one by the name of Segate along with them but he was merely a patrolman and had been taken along, but both Golombeck and Klenk said that they were arrest -- they arrested them on suspicion.

That in addition to it, they had no warrant, and in addition to it, Klenk, as I will point out later, put no charge against the petitioner until 1 o'clock on the afternoon of January 11th of 1957 or the day following their arrest.

Now --

Chief Justice Earl Warren: And what was that charge?

Mr. William B. Mahoney: That charge was 2124 and 404 -- 404, Your Honor.

That's robbery and larceny --

Chief Justice Earl Warren: Yes.

Mr. William B. Mahoney: -- under the penal law of the State of New York.

Now --

Justice Tom C. Clark: Was that Redlinski?

Mr. William B. Mahoney: Redlinski, Your Honor.

That's correct.

Justice Tom C. Clark: What did the F. B. I. (Inaudible)

Mr. William B. Mahoney: Pardon me?

Justice Tom C. Clark: (Inaudible) to that conversation.

You say the F. B. I. told the police and told them about this Redlinski?

Mr. William B. Mahoney: Do you want their page in the record?

Justice Tom C. Clark: I was wondering at that time did they mention Coppola as being one of the to make this robbery a tenant robbery.

Mr. William B. Mahoney: Yes, Your Honor.

They had information to that effect.

That answered the question, sir?

Justice Tom C. Clark: In fact, Coppola himself.

Mr. William B. Mahoney: Yes.

Coppola would be involved.

Now, after Roche got into headquarters at approximately at noon time, his contacts were then with Golombeck, Chief of Detectives, Klenk, both of whom were the arresting officers, John Dwyer, the District Attorney of Erie County, who had been apprised the day before and when he found out that there had been no interrogation of Coppola at that particular time, then all four of them went to lunch.

They were gone to lunch until 2:30 in the afternoon.

Now, I say that that is a definite significant factor because unless you would want to take just one definite stand and say that it was merely a sociable gathering over that period of time from approximately noon until 2:30, I certainly think that that is a factor that can be taken into consideration by the Court as to a continuation of that working arrangement that was existent between Roche and his agents on the one hand and Golombeck and Klenk on the other.

What --

Justice John M. Harlan: Who paid for the lunch?

Mr. William B. Mahoney: Excuse me.

Justice John M. Harlan: Who paid for the lunch?

Mr. William B. Mahoney: I think that's a confidential communication.[Attempt to Laughter]

It was never ascertained as far as the record was concerned.

However, as I say, I think that the Court is in a position to draw the inference that at that particular lunch, there was discussion about the arrest that had been made and the charge that should or should not be preferred in a detention that should take place and who was to do the examining and the reason that I say this to the Court is because of this factor.

When the four of them returned to headquarters at 2:30, Harry Klenk, one of the arresting officers, the head of the homicide squad, started the interrogation of the petitioner Coppola.

And although he was questioning him about some state crime, nevertheless, he admitted that he interrogated him about the Manufacturers and Traders Trust stickup or holdup and he also interrogated him about the Liberty Bank situation.

Justice Potter Stewart: Suppose those are -- are state offenses also, aren't they?

Mr. William B. Mahoney: The --

Justice Potter Stewart: (Inaudible) bank as well, isn't it?

Mr. William B. Mahoney: The larceny.

Yes, Your Honor.

That's what I answered to --

Justice Potter Stewart: Yes.

Mr. William B. Mahoney: -- I think Justice Warren or Clark before that, they are state violations.

Justice Potter Stewart: Yes.

Yes.

Mr. William B. Mahoney: Now, he doesn't claim and -- and he never claimed in his testimony that -- as to whether or not his interrogation was concerning the federal side of an order of the State.

The record is devoid of any testimony as to which of the two factors he examined them about, but at 3:30, when his interrogation, Coppola ceased, Roche and Dwyer both of whom had remained at headquarters during Klenk's interrogation of Coppola, then those two individuals, Roche, the special agent, and Dwyer, they took up a joint questioning of the petitioner Coppola.

And in that questioning, Roche was concerned with the M. & T. job and he was concerned with the Liberty Bank job, and he was also concerned as to whether or not he could get permission from the petitioner to affect the search of his home which was in Niagara Falls, some 26 miles away.

Now, that joint conference between these two men, the special agent Roche and the District Attorney ended at approximately 4:00 o'clock.

Now, in the City of Buffalo, our city court, where arraignments on state offenses are held, adjourns at 5:00 o'clock at night.

The United States Commissioners have no designated hours but they're generally there doing the regular business hours of the day and that would be 5:00 o'clock.

What they did with Coppola at that particular time was to put him back in confinement and he stayed in confinement until approximately 9:00 o'clock, that particular night, this is January 10th of 1957.

At about 8:00 o'clock, special agent Roche assigned six deputies, two of whom were assigned to Coppola, to go to police headquarters for the purpose of getting a statement.

And I might say at this particular time and I do urge this upon the Court that in as much as they had the written reports of Byars to the effect of an admission having been made by the defendant or by the petitioner as to both of these cases, it would seem to me that they were no longer investigating because they had more than sufficient proof.

That is the federal agents had more than sufficient proof in their possession where they could have gone over to a Commissioner on November the 5th, 1956 or up until the end of December of 1956 and secured a warrant for the arrest of the petitioner.

And they -- if their evidence was believable, it was more than sufficient to warrant a conviction on a question of fact in the federal courts.

But it would seem to me at this particular stage that when Roche engages in these calls of January 7th and 9th and then he's so active on January 10th, and then he assigns men to go over and interrogate Coppola, he's not interested in investigation of a crime nor is he interested in trying to absolve somebody who might be suspected but his sole interest on that basis or his sole interest is the basis of going over and getting a statement for the purpose of conviction.

So what happens?

They go out -- they're assigned there at about 8:00 o'clock at night.

And now this is agent Eddy and Jensen's testimony that they went over to headquarters at approximately 8:00 o'clock at night, that they waited --

Justice Tom C. Clark: Was that first night?

Mr. William B. Mahoney: Pardon me, Your Honor.

Justice Byron R. White: First day of arrest?

Mr. William B. Mahoney: Yes, Your Honor, this is January 10th, and at about 9:00 o'clock, the police officers took the petitioner out of the cell block and brought him to a small office where the two agents, Eddy and Jensen were seated.

That the interrogation started at about 9:02 at night and it finished at 12:45 the following morning.

And during that particular time, their testimony was to the effect that they secured the oral admission and then the written admission from Coppola.

Now, during that particular time and while they were in custody, this is another significant factor, Harry Klenk, the head of the homicide, who stated that he was investigating alleged state crimes between the hours of 9:00 and 12:45 the following morning, on three occasions, he went to the cell block that is located on the fourth floor for the purpose of processing whatever had to be done relative to the investigation of a state crime.

On each occasion, he found that they were still being interrogated by the federal agents and he did not pursue what he had in mind relative to the investigation of state crime, but he merely -- whether a matter of convenience as the Government contends or a matter of courtesy, nevertheless, that's what did occur.

Justice Potter Stewart: This was in the Erie County Jail or Buffalo City Jail?

Mr. William B. Mahoney: This was in police headquarters of the Buffalo Police Department.

Justice William J. Brennan: He was in a lockup here.

Mr. William B. Mahoney: Yes, Your Honor, the lockup.

Now, these men were -- the petitioner as well as the others that have been brought in that particular day, they were then incarcerated until approximately 11:00 o'clock the following morning.

At 10:00 o'clock the following morning, special agent Roche sent one of his agents over to U.S. Commissioner to secure a warrant to file the information of course and then he made a request to the Buffalo police to deliver them over to a Commissioner's office for purpose of arraignment, that is deliver him into the custody of the F. B. I.

Justice Charles E. Whittaker: When was that reached?

Mr. William B. Mahoney: That was January the 11th at approximately 11:00 a.m.

You must bear in mind and I think as I develop this argument that you'll be satisfied that there was no state charge had been placed at this hour of January 11th or at 11:00 o'clock or January the 11th at 11:00 o'clock.

There was no state charge had been placed against the petitioner at that particular time.

Justice Charles E. Whittaker: (Voice Overlap) demand.

The Government then demanded custody of petitioner?

Mr. William B. Mahoney: On January 11th,Your Honor?

Justice Charles E. Whittaker: Yes, when they filed the charge before the United States Commissioner that you say about 11:00 o'clock, did the Government then demand custody?

Mr. William B. Mahoney: The Government called police headquarters and talked to Klenk and asked him if he would deliver the petitioner in this case to the office of the U.S. Commissioner to surrender him to the F. B. I.

Justice Charles E. Whittaker: Did they do that?

Mr. William B. Mahoney: At that particular time, that was not done because at 11:00 o'clock in the morning, the petitioner was taken over to the office of the District Attorney in what we call an Erie County hall and they were held there or he was held there until approximately 1:00 p.m.

And shortly after that, the petitioner was taken to the City Court of Buffalo where he was arraigned at approximately 2:00 p.m. on the afternoon of January the 11th, 1957, on the charge of the Redlinski holdup.

I might add to the Court --

Justice Tom C. Clark: They had been booked on that before?

Had they then booked on that charge?

Mr. William B. Mahoney: He was not booked according to Klenk until 1:00 or 1:10 on January 11th, 1957.

And I have --

Justice Tom C. Clark: At the same day he was -- same time he was arraigned.

Mr. William B. Mahoney: About an hour before arraignment, Your Honor, yes.

There is and I might say to you at this time that there is some dispute on the part of Golombeck about being booked on a charge but I think I'll clarify that for the satisfaction of the Court when I discuss that particular facet.

As I say, the man was arraigned at two o'clock in the afternoon, sometime between 2:00 and 3:00 o'clock, and he was turned over then to the Federal Bureau of Investigation who brought him before a U.S. Commissioner and he was arraigned for the first time before a U.S. Commissioner at 4:00 p.m. on January the 11th of 1957.

Now, as I've said to the Court here, this is a series of events, the evidence of which in the petitioner's opinion as well as my own, certainly shows that there was a definite working agreement between the F. B. I. and the Buffalo police as to the M. & T. and the Liberty Bank jobs from February 1956 up to and including that call of January 7th, 1957.

When a man states that we mutually work the case together, I can conceive of no other deduction that could be consistently drawn that that wouldn't spell out a working arrangement.

When he adds to it that we would assign our officers one with the other to work out the details of the case in order to further the investigation, that couldn't be anything other than the working arrangement that was mentioned in Anderson against the United States as I have read that particular decision.

Justice Felix Frankfurter: Do you think that's a term -- do you think that as a term of art of working arrangement?

Do you think that's a technical phrase Mr. -- Senator Mahoney?

Mr. William B. Mahoney: No, I don't think so, Your Honor.

Justice Felix Frankfurter: Just a colloquial phrase which relates to a set of circumstances to be --

Mr. William B. Mahoney: That's --

Justice Felix Frankfurter: -- demonstrated in each case.

Mr. William B. Mahoney: That's true.

Justice Felix Frankfurter: It's not a litmus paper test, isn't it?

Mr. William B. Mahoney: No, very true.

But I say this -- that's why I say to the Court here that the circumstances, not one, not two, but a number of them that would show as to what they were doing in that year of 1956.

And that there was no hesitancy on the part of Mr. Roche to admit that fact while he was being examined without the presence of the jury.

Justice Tom C. Clark: I think that --

Justice Felix Frankfurter: I think I -- I beg your pardon.

Mr. William B. Mahoney: I'm sorry.

Justice Felix Frankfurter: I should think the two cases cited after the phrase working arrangement or a few words after by as the Gambino indicates what was meant.

Mr. William B. Mahoney: By the Gambino case, Your Honor?

Justice Felix Frankfurter: I say the Gambino case and the Byars case cited for and used the following sentence using the phrase “working arraignment” indicates what is meant by working arrangement, doesn't it?

Mr. William B. Mahoney: I would say that there, it's suggestive of just what is meant and even in spite of that particular fact, I do say to the Court that the circumstances proven here, the continuity of them, the number of them, and the substance of what occurred certainly would seem to me to bring it within the Byars case that they had a hand in it.

Justice Felix Frankfurter: But won't you -- won't you go beyond -- all that I was suggesting, Senator Mahoney is that working arrangement isn't a talismanic phrase.

Mr. William B. Mahoney: No.

That's true, Your Honor.

Justice Tom C. Clark: Do you think it means more than an effort to try to solve the crime?

Mr. William B. Mahoney: Well, the question then arises, Your Honor, as to the breath of what is an effort to solve a crime.

Justice Tom C. Clark: Not just that there's an exchange of information, anything they heard as to any leads on any crime that was -- bank robbery I suppose is well known in the community.

Mr. William B. Mahoney: Well, and I -- I certainly think that cooperation between those agencies would be commendable, and I wouldn't be one -- for one at any time that I would criticize it.

But when it goes beyond that cooperation and when this circumvention starts to assert itself and the means employed in order to circumvent some of the rules that have been enunciated by this Court and we can see from a factual picture of this kind that they are working not only from what Roche have to say but a strange situation and I'd like to call this to the Court's attention.

The Government in its argument at page 45 of its brief in calling the Court's attention to the record in the Anderson case, they say this.

This is about the ninth line from the top of the page.

The record shows that the federal agents and the state officers worked hand in hand with each other.

Again, the facts -- the actual facts are not brought out or admitted but I'd -- would refer you to page 102 of the record before yourself.

On my recross examination of Detective Golombeck and when I was querying him as to why he would make a call -- a telephone call from outside of headquarters before he brought these men to headquarters to inform special agent Roche that “we've made the arrest, we're on our way to headquarters,” his answer was this.

“We work hand in hand with them in the sheriff's office.”

Now, the very phraseology that the Government says was present in the Anderson case is just about what Golombeck admits in the examination of himself before the trial judge.

Justice Felix Frankfurter: Senator Mahoney, all -- all words are rather sharp instruments.

Mr. William B. Mahoney: That's true.

Justice Felix Frankfurter: You can't avoid them -- avoid that.

Would you accept in order to get the case out of the atmosphere of -- of insisting it in -- into that phrase and don't -- were a binding phrase, would you accept the colloquial phrase that the two sets of officials were partners in this enterprise with the power and responsibility that the partners had or the power of control that the partners had.

Mr. William B. Mahoney: Yes.

Justice Felix Frankfurter: Should you accept that as the colloquial way of trying to express the same idea that lay behind that phrase, in the context of the Anderson case?

I don't mean to be -- introduce this by saying that all words are treacherous, but that's the -- that's the idea of a working arrangement.

Mr. William B. Mahoney: Sure that they were partners --

Justice Felix Frankfurter: Not that while somebody's in complete control of somebody else he had lead to somebody else to talk to and that's a very different thing from -- from the -- what I call partners being active companions in a common enterprise.

Mr. William B. Mahoney: Well, and -- and I would say again in answer to that, Your --

Justice Felix Frankfurter: I'm not suggesting that --

Mr. William B. Mahoney: No.

Justice Felix Frankfurter: -- this does or doesn't come within the phrase.

I'm just trying to rip any technical connotations out of the phrase.

Mr. William B. Mahoney: Well, I -- I would say very candidly to the Court that I think that the admissions made by special agent Roche as well as those made by Chief of Detectives Golombeck show that they were partners in this venture and not only were they partners in it but what came from the lips of special agent Roche was that he and his agents under him were partners with Golombeck and Klenk, and members of the Buffalo Police Department of a lesser rank and I --

Justice Felix Frankfurter: When you -- when you use language like that, you imply as -- you imply responsibility on the part of federal officials, don't you?

Mr. William B. Mahoney: That's true.

That's true.

Justice Felix Frankfurter: And that's implied in --

Mr. William B. Mahoney: Yes.

Justice Felix Frankfurter: -- that it isn't by grace of the state authority were they're allowed to do something but they had a responsible, active controlling share.

That's part of your argument, isn't it?

Mr. William B. Mahoney: That's true, Your Honor.

Now --

Justice John M. Harlan: Could I ask one question?

Mr. William B. Mahoney: Yes, Your Honor.

Justice John M. Harlan: Is there any evidence that the period of interrogation whether by police, by the state police, or by the federal officers prolonged while this man was -- at the request of the F. B. I., while he was in the hands of the state authority?

Mr. William B. Mahoney: Your Honor please, the -- the testimony in sort of a capsule form is that the interrogation was from 2:30 until 3:30 on January 10th, from 3:30 to 4:00 on that same day --

Justice John M. Harlan: Yes.

Mr. William B. Mahoney: Then there was some additional interrogation by the police officers relative to what they were interested in and then the interrogation of the petitioner started at 9:02 p.m. on January 10th and ended at 12:45 a.m. on January the 11th, 1957.

Justice John M. Harlan: Well, if I didn't make myself clear, is there -- and during that whole period of time, is there any evidence that there was a -- there was a -- that a point had been reached where the State was willing to have this fellow arraigned --

Mr. William B. Mahoney: No.

no.

Justice John M. Harlan: -- but delayed because of something that the F. B. I. did or because they wanted to accommodate the F. B. I.?

Mr. William B. Mahoney: The only -- the only evidence in the case was that the State had never indicated that it was going to do anything else throughout the 10th as well as the 11th of January up until 1:10 p.m. to hold a man on suspicion or as they call it on open charge.

Does that answer it?

Justice John M. Harlan: Yes.

Thank you.

Mr. William B. Mahoney: Thank you, Your Honor.

Now, I think it's quite significant, Your Honors that what I've said here about these three -- these four individuals being in police headquarters and going to lunch on that particular day.

That that certainly has tremendous significance to myself and it had significance to Judge Waterman with whom Judge Washington joined on the panel court before the Court of Appeals.

I don't think that being a little realistic that we could think that four officers who had congregated together for one purpose, M. & T. and this came from the lips of Mr. Roche, “For the M. & T. and the Liberty Bank and no other purpose that they could sit through a period of 12:00 until 2:30 in the afternoon without discussing some phase of it.”

And I think it's just as consistent with whatever might be said in the opposite that they discussed at that particular time as “How shall we proceed from here?

Who'll do the approaching?

How long we got to hold him or how long shall we hold him?”

Because it doesn't seem that we would be at all realistic in the event that we came to the conclusion that they only discussed last night's poker game or last night's theatre that they might have attended on that particular occasion.

Again --

Justice Tom C. Clark: Who interrogated him first?

Mr. William B. Mahoney: Pardon me, Your Honor?

Justice Tom C. Clark: Who interrogated him first after the lunch?

Mr. William B. Mahoney: Klenk.

Justice Tom C. Clark: Klenk, who's he with?

Mr. William B. Mahoney: He's the Buffalo police and he interrogated as soon as he came back from lunch but his interrogation as I said before covered among other things the Manufacturers and Traders Trust and also the Liberty Bank.

Justice Potter Stewart: At the trial of -- were there -- was there any effort to ascertain either by the defense or the prosecution as to what had in fact been discussed during lunch?

Mr. William B. Mahoney: No, Your Honor.

Justice Potter Stewart: I suppose each side was afraid of what the answers might be?

Mr. William B. Mahoney: Well I -- if they weren't afraid, they were really careful.

I think again as to what I had to say about behest which I said to the Court, always in my mind, was somewhat of a command or a mandate or a direction.

That's what it always implied to me and certainly, you wouldn't be making inquiries of that kind as defense counsel, did your command, did your mandate --

Justice Potter Stewart: I didn't mean any mandate but I just wondered if there's any inquiry at all --

Mr. William B. Mahoney: No.

Justice Potter Stewart: -- as to what --

Mr. William B. Mahoney: There was none, Your Honor.

Justice Felix Frankfurter: Senator Mahoney, either now or later, I don't want to break into your argument, before you sit down, will you be good enough to tell us whether these disclosures made by the defendants, whether they would have been admitted, whether they were admissible in case these people had been tried for a state offense, just take your (Inaudible), the arrest of -- whether -- whether under New York state law, there were illegalities on the part of the state law enforcement officials which would have led to the exclusion of this same testimony in a state proceeding -- just when you get around to it (Voice Overlap) --

Mr. William B. Mahoney: Thank you, Your Honor.

May I -- I'd like to definitely pinpoint this to the Court at this time if I may because the Government in the lower court that is in the Court of Appeals and I notice again in their brief that they talk about the defendant having been booked at 3:45 and 4:15 on the afternoon of January 10th, 1957 in police headquarters.

Now, frankly, I think that their reading of the record, probably in the first instance they were justified in drawing that deduction but if they had gone further in Golombeck's testimony, they would have readily have seen that when it was called to Golombeck's attention relative to the 3:45 and 4:15 being on the book in the detective bureau that he practically admitted that he was in error and that officer Klenk's testimony was correct and just to pinpoint that to the Court, I would respectfully refer you to page 81 of the record.

You will note that right at the top of it, “And you held him on suspicion until 1:00 o'clock or 10 minutes to 1:00 January 11th, 1957?”

Answer - “Yes, sir.”

Then of course I asked this next question and I could never understand the ruling of the Court, but I think the Court will appreciate it, but now, in keeping with the continuity of the expression that I made, I would like to call Your Honors' attention to the next page.

At the bottom of the page, the second last question.

“The charge was placed against this man on the afternoon of the 10th, the day of the arrest?”

Answer - “Not the charge of robbery, it was placed on the 11th.”

Now, that was direct examination by Mr. Fallon, the District Attorney.

You'll note that from page 81 and then Golombeck testified somewhat to the contrary, Your Honors, on page 91 of the record and at this particular time, he was being examined by Mr. Fallon.

Justice Potter Stewart: At page 91, you say?

Mr. William B. Mahoney: 91.

This is Officer Klenk again who -- whose testimony I just referred to at page 82.

The first question at the top of the page, Your Honor, is I'm now examining now as to Exhibit 41 which is police blotter.

“Does this time indicate on here under this time column, does that indicate the time that they were brought down from the cell block and officially put on the memorandum of arrests on the afternoon of the same day?”

Answer - “Yes.”

“Then the time in here has an indication as to when they were brought into thee?”

The answer - “Detective bureau.”

Detective bureau answered, that's right.

“And that indicates the time of their arrival at the detective bureau?”

“Yes sir.”

Now, just to -- I notice my time is running short, at page 97 for reference to the Court, you'll find that Golombeck at that particular time -- I should've said page 99, Your Honor.

Question about the second third -- second last question at the bottom of the page.

In this particular case, we have testimony here to the effect that is the time they were brought from the cell block into the detective bureau.

Well then, it must be so.

He contracted what he had said on page 97.

Now, in answer to Justice to Frankfurter's query, may I say this?

In answer to your question which I understood to be that “Would that evidence be admissible by state officers in the state courts of New York State?

That --

Justice Felix Frankfurter: That is my question.

Mr. William B. Mahoney: -- I think I got it.

Thank you.

In as much as we do not follow the exclusionary rule as you well know --

Justice Felix Frankfurter: Yes.

Mr. William B. Mahoney: -- People against (Inaudible), which is very familiar to yourself and other kindred cases.

But I would say that if this testimony had been introduced in the state courts of New York State that my objection to it certainly would have been overruled.

Justice Felix Frankfurter: Well, and I -- I assume and knew there was -- Judge Cardozo's opinion before -- before --

Mr. William B. Mahoney: Before.

Justice Felix Frankfurter: But -- and you referred to page 82, Senator Mahoney.

Mr. William B. Mahoney: Yes, Your Honor.

Justice Felix Frankfurter: What charges were faced against number 10?

Answer - “Investigation.”

Is that loose talk or is there really under in New York practice as a man -- his investigation or charge under which a man is held?

Mr. William B. Mahoney: If Your Honor please, I -- I think I can answer it this way.

Investigation without anything being designated as to investigation -- but then again on the 11th, the Redlinski charge came into being because an information was filed in the city court of Buffalo.

To this day, there hasn't been anything done by the local authorities including Golombeck, Klenk, and others as to that Redlinski charge and that's supposedly occurred in 1957 in January and here it is, 1961.

Justice Felix Frankfurter: Well, is that common practice just to put down investigation?

Mr. William B. Mahoney: Yes.

Justice Felix Frankfurter: That is --

Mr. William B. Mahoney: I found that to be --

Justice Felix Frankfurter: And to -- and to call any charge, sounds a little odd, doesn't it?

Mr. William B. Mahoney: In what?

Justice Felix Frankfurter: That an investigation is called a charge that was at large.

Mr. William B. Mahoney: Well, I know.

Justice Felix Frankfurter: There's no warrant of arrest --

Mr. William B. Mahoney: No warrant of arrest.

Justice Felix Frankfurter: No warrant of arrest, no charge, it's just an investigation.

Mr. William B. Mahoney: But it's just loose talk on the part of those police officers that, you know, they're talking a certain type of jargon and you can't control them, but I would say that if that was definitely loose talk --

Justice Felix Frankfurter: While your -- while the Court of Appeals -- while you haven't got the exclusionary rules, they have from time to time and sets things about this, the Court of Appeals.

It is large --

Mr. William B. Mahoney: Very definite and they've set convictions aside our Court of Appeals.

People against Lovello, the Mummiani case is and other one where they have set it aside because of a failure to arraign promptly in violation of Section 165 of the Code.

Justice Felix Frankfurter: Well -- well, is your answer saying that the evidence would not be excluded also covers that they -- the question whether failure to obey the statute leads them to set aside the conviction.

Mr. William B. Mahoney: Failure to obey does lead them to set aside the conviction.

Justice Felix Frankfurter: Then I'll repeat my question.

In this case, would failure to arraign -- what would be the effect of the failure to arraign?

Mr. William B. Mahoney: I think, Your Honor, in view of what our Court of Appeals has said that there definitely would be a reversal if this testimony were allowed to be introduced in state court and merely because of the violation on the part of the police officers in detaining illegally.

That's my thinking concerning our Court of Appeals.

Justice Felix Frankfurter: A little difficult of -- there and -- for me to reconcile that with the general rule that --

Mr. William B. Mahoney: That's true.

Justice Felix Frankfurter: -- the mere fact of the evidence is obtained from the circumstances of -- it pursues him illegal or in violation of the Constitution.

Mr. William B. Mahoney: Well, we have a section --

Justice Felix Frankfurter: You now have a search and seizure provision, haven't you, in New York?

Mr. William B. Mahoney: Yes, we have.

Justice Felix Frankfurter: So that now, evidence may be procured in violation of the search and seizure provision of the State Constitution, but that would not exclude the evidence, but failure to arraign in time might lead to a reversal.

Mr. William B. Mahoney: Yes, Your Honor.

That --

Justice Felix Frankfurter: A little difficult to reconcile.

Mr. William B. Mahoney: It's true.

It is.

Thank you.

Chief Justice Earl Warren: Mr. Heffron.

Argument of Howard A. Heffron

Mr. Howard A. Heffron: Mr. Chief Justice and may it please the Court.

The Anderson case was decided at the same time as in McNabb decision came down and as we see it, the rule of the Anderson case is a corollary of the McNabb principle.

And that Anderson, in effect says that federal agents may not do indirectly through a State investigation what they could not do directly.

So that as we see it, the search under the Anderson principle is to find culpable conduct by federal agents; such conduct which would warrant this Court in finding that they had deliberately violated the rules of federal procedure in a situation in which they had sufficient control and power to adhere to those rules.

Justice Felix Frankfurter: When you say culpable, we get into trouble sometimes, we use moral terms.

All they have to do on the McNabb and Anderson is not obey the requirement of prompt arraignment.

They may be -- they may not -- they may be zealous, they maybe high minded, they may have not thought about it, and they just fail to arraign him for several days.

That would exclude the statements, wouldn't it under McNabb?

Mr. Howard A. Heffron: Yes, it would.

Justice Felix Frankfurter: So when you say culpable, you introduce an element of -- of moral responsibility that isn't required.

Mr. Howard A. Heffron: Well, I --

Justice Felix Frankfurter: It may -- it may accompany to transaction but it isn't a test.

Mr. Howard A. Heffron: No, we would not insist that that is a test.

Now, in this case, what we have is a bank robbery which was at the same time a state crime as well as a federal crime.

There's no doubt that both sets of authorities were interested in solving this bank robbery.

The F. B. I. had an informant who was in communication with this defendant and who made various submissions to the informant which were duly conveyed to the F. B. I. and the investigation proceeded.

There came a time in the course of this investigation when the informant advised the F. B. I. that the petitioner and his accomplices were planning a state offense, the robbery of a tavern in Buffalo.

Now, at that point, the F. B. I. investigation had not yet been completed.

They still had an informant in contact with this petitioner and they were receiving reports of -- of a nature which interested them.

There were various accomplices named.

At one time, the informant reported that he'd been told that a man named Jimmy had been involved in the Liberty Bank robbery with no further identification.

So there was good reason for the investigation to continue.

Then the F. B. I. learned through its informant of the -- of a projected state crime and they faced a dilemma.

Their investigation, they decided, should continue, at least they're not willing to bring it to an end at this time.

They have an informant.

They're receiving information of value to them.

On the other hand, a state crime is about to be committed.

Under these circumstances, they had no choice but to convey this information to the state authority so that the state authorities could then make -- take appropriate action to prevent this robbery of a tavern from being accomplished.

That's precisely what happened here.

The F. B. I. in the course of its investigation ascertained information about an independent state crime unrelated in any way to the federal crime which was under investigation.

And as part of their responsibility, they felt they had to convey this information to the state police.

When the state police received this information, they apprehended Coppola. Now, there's some question as to legality of the arrest.

The -- the Chief of Police of Buffalo testified that before he apprehended this petitioner, that he had been advised by one Redlinski that the petitioner was the man who robbed his butcher store, that he had shown Redlinski a photograph of petitioner, Redlinski and identified him.

When the car was stopped and the police officers searched the car, under the seat they found not only the keys referred to by Mr. Mahoney, but silk stockings.

Silk-stocking was as the mask used by the bank robbers in the M. & T. Bank job.

Now, having the prisoners in custody, the state police then removed them to the jail in the city.

Now, up to this point, we say, we have nothing more than a normal kind of police cooperation. The F. B. I. has information about a state crime.

They feel they must turn this information over to the state police.

Justice Felix Frankfurter: Well, up to this time, doesn't anything that calls for interpretation.

Up to this time, you haven't gotten anything yet insofar as the federal benefit of the -- of the arrangement, whatever arrangement there has been, have you?

Mr. Howard A. Heffron: No.

No, there's nothing here.

Justice Felix Frankfurter: So there's no problem as yet.

Mr. Howard A. Heffron: As we see it, there is --

Justice Felix Frankfurter: Is that right?

Mr. Howard A. Heffron: That's right.

There is no problem at --

Justice Felix Frankfurter: Alright.

Mr. Howard A. Heffron: -- this point.

Now, then these men are brought in -- are brought to a police headquarters and the state police interrogate them about various state crimes, about these bank robberies.

The F. B. I. requests permission to interrogate the man and they are told when we're ready in effect.

And when we're ready means in this case at 9:00 in the evening which is when the F. B. I. were finally permitted access to interrogate this man uninterrupted.

Now, up until that time, the man was in control of the state police.

He was being held on charges of an independent state crime.

He had been arrested by state police pursuant to these charges.

There's no suggestion in the record that this arrest was anything other than that which it appeared to be, an arrest on independent state offense.

As a matter of fact, I can advise the Court that on January 23rd, an indictment was returned in the state court in Buffalo charging this petitioner with the Redlinski robbery, which was the one the Chief of Police had had the victim identify petitioner prior to the apprehension of these men.

That indictment still subsists and there's --

Justice Charles E. Whittaker: Is that the --

Mr. Howard A. Heffron: There's been no trial under it.

Justice Charles E. Whittaker: Is that the robbery that occurred at the Butcher shop?

Mr. Howard A. Heffron: Yes, that is the Butcher shop robbery.

Justice Charles E. Whittaker: On January 4 --

Mr. Howard A. Heffron: Yes.

Justice Charles E. Whittaker: -- 1957.

Justice Potter Stewart: January 23rd of what year, the indictment was returned?

Mr. Howard A. Heffron: Of 1957.

It was 13 days after they had apprehended.

Now, it's -- was stipulated below that the interviews which the F. B. I. had with the petitioner did not delay his arraignment under state law.

Those interviews took place in the evening and that the -- the counsel agreed below that it was impossible to arraign the man until the following morning.

So what we have here is an arrest of a man for an independent state crime.

He is taken into custody by state police.

When they are permitted by state police, the F. B. I. interviewed the man.

Thereafter, on the following day, he is arraigned for his state crime and just as soon as he is released to federal agents, he is arraigned promptly on his federal crime.

Justice Felix Frankfurter: How much upon do you -- how much time transpired -- took place between the arraignment either by state or federal -- under state or a federal charge other than the investigation -- arraignment I'm talking about.

How much time elapsed between disclosures made by them, talk subsequently used in the federal trial and the arraignment?

Mr. Howard A. Heffron: I'm not sure I -- I understand -- I understand the question.

Justice Felix Frankfurter: That the Federal -- the F. B. I. people talk with the petitioner before he was arraigned.

Is that right?

Mr. Howard A. Heffron: Yes.

Justice Felix Frankfurter: How much time elapsed between the time that they talked to him and the time that he was arraigned?

Mr. Howard A. Heffron: They talked to him at -- from 9:00 o'clock in the evening until midnight or past midnight.

He was arraigned the following day at about one o'clock in the afternoon.

Justice Felix Frankfurter: So the -- they just intervened the night and before noon, is that right?

Mr. Howard A. Heffron: Yes, sir.

Justice Felix Frankfurter: Alright.

Mr. Howard A. Heffron: And --

Justice William J. Brennan: The state arraignment was at 12:00.

Mr. Howard A. Heffron: Yes, sir.

Justice William J. Brennan: Federal arraignment was at 4:00.

Mr. Howard A. Heffron: Yes.

Justice Charles E. Whittaker: Isn't the federal (Inaudible).

I understood -- if I made a -- made a mistake.

I understood that the Federal Government filed information to that and was brought to them on next morning.

Mr. Howard A. Heffron: That's right.

At -- at 10 o'clock in the morning, following this evening of interrogation, a complaint was filed before the United States Commissioner charging Coppola with the -- with the bank robbery.

Justice Felix Frankfurter: Was there any talk between after the midnight talk?

There was a talk from 9:00 which terminated at 12:00.

Was there any further talk between the F. B. I. the following fore noon which was used in the trial?

Mr. Howard A. Heffron: No.

there was none.

The --

Justice Felix Frankfurter: Well, now, suppose you had -- suppose all this had taken place through federal law enforcement, through F. B. I. no state federal problem intervened, suppose he'd been arrested that day and suppose they had questioned him from 9:00 to 12:00 and he'd been arraigned the next morning on the McNabb would the Government not -- not use this, the confess -- the statements or if they came here with a confessed error.

Mr. Howard A. Heffron: Well, if you -- if you assume the arrest took place that evening which was not the case here.

In fact, in this case, the police officers apprehended this man approximately 9:45 in the morning --

Justice Felix Frankfurter: Of that day?

Mr. Howard A. Heffron: Of that day.

Justice Felix Frankfurter: But what was therefore the -- we have to canvas, I think the relation of the F. B. I. to the arrest and to the condition into which he was placed until the F. B. I. began their talk -- investigation --

Mr. Howard A. Heffron: Well --

Justice Felix Frankfurter: -- at 9:00 at night.

Now, what was it, with great particularity?

What was the F. B. I.'s relation to the time that he was arrested by the state officials and the talk began by the F. B. I. at 9:00 at night?

Mr. Howard A. Heffron: Well, the relation was one where the F. B. I. had supplied information which led to this man's arrest.

Justice Felix Frankfurter: That was antecedent –

Mr. Howard A. Heffron: Yes, and they awaited an opportunity to interview the prisoner.

They requested permission to interview the prisoner and they finally --

Justice Felix Frankfurter: That same day -- that same day?

Mr. Howard A. Heffron: That same day.

They were finally granted permission at 8:00 o'clock that night.

Now --

Justice William J. Brennan: They had lunch with the state officers.

Mr. Howard A. Heffron: Yes, they had lunch with the state officers.

Justice Felix Frankfurter: They have anything to do except furnishing the information on the basis of which the state police made the arrest.

Mr. Howard A. Heffron: No, they did not.

Justice Felix Frankfurter: Did they have anything to do with the actual arrest, the physical arrest?

Mr. Howard A. Heffron: No.

Justice Felix Frankfurter: During the course of the day, did they seek to talk to the prisoner?

Mr. Howard A. Heffron: Yes, they did.

Justice Felix Frankfurter: Well, I mean they asked permission to talk --

Mr. Howard A. Heffron: -- but did they actually come into his presence and -- and began to talk with him?

Mr. Howard A. Heffron: There is one occasion at 3:30 in the afternoon when the F. B. I. agent Roche and the District Attorney Dwyer jointly saw petitioner.

The testimony is that Roche asked for permission to search the petitioner's apartment and the petitioner, at first agreed, whereupon Roche left to get a form of consent for the petitioner to sign.

When he returned with the form, petitioner said, “I'd rather not sign this.”

Justice Felix Frankfurter: He'd rather what?

Mr. Howard A. Heffron: “I'd rather not sign this form” and that was the end of that interview.

Now, the next occasion that the F. B. I. has any contact with the man is at 9:00 o'clock that night.

They had arrived at police headquarters at 8:00 and requested permission to interview the man.

He was then out in a lineup where various victims had been called in to identify him.

He did not return until 9:00 o'clock.

There's no question that at this -- during this entire period, the custody was that of the State's.

This was -- this took place at police headquarters.

When the F. B. I. requested permission to interview them, they had to wait.

The detective -- the -- the city detective Klenk testified that he had come in to try and take the man away for a show-up.

While the F. B. I. were interviewing them, he did not out of courtesy.

He said they were my prisoners, I could have taken them if I had wanted to.

Justice Felix Frankfurter: Who said that?

Mr. Howard A. Heffron: The city detective.

Justice Felix Frankfurter: Giving the word control or the conception of control has looser the meaning as you think is warranted, would you say that anytime during the course of that day, the F. B. I. had control over this person?

Mr. Howard A. Heffron: No, I would not.

This maybe --

Justice Felix Frankfurter: Where do you think -- at what point, if ever, is any aspect of control over the disposition of petitioner --

Mr. Howard A. Heffron: Well --

Justice Felix Frankfurter: -- arise in the F. B. I.?

Mr. Howard A. Heffron: Subsequent to his arraignment on the state charges, he was turned over to United States Marshals.

Justice Felix Frankfurter: That's at 1:00 o'clock.

What other --

Mr. Howard A. Heffron: Subsequent, yes, and brought before the United States Commissioner that afternoon.

There is no contention here that there was any delay in that period.

Justice Felix Frankfurter: Well, was -- within that period, were there any further statements before --

Mr. Howard A. Heffron: No.

The only statements that are --

Justice Felix Frankfurter: 9:00 to 12:00

Mr. Howard A. Heffron: -- offered here were in the evening session.

Justice Felix Frankfurter: I ask you again whether if everything that took place with reference to the petitioner and the conduct of the F. B. I., the State were out of it entirely.

Would the Government feel obligated to say yes?

This is in disregard in violation of McNabb, Anderson.

Mr. Howard A. Heffron: We assume that the F. B. I. arrested this man at 9:45 in the morning and did not arraign him until the following afternoon.

Justice Felix Frankfurter: Well, did they -- but you say you can't assume that and it's --

Mr. Howard A. Heffron: Well --

Justice Felix Frankfurter: -- contrary to facts in the statement.

Mr. Howard A. Heffron: Well, that's right.

That is not -- that is not this case.

Justice Felix Frankfurter: Alright.

Justice Tom C. Clark: Is there anything in the record as to why Mr. Roche went over to the lunch at 12 o'clock or whatever it was?

Mr. Howard A. Heffron: Well, there is no question that Mr. Roche wanted an opportunity for the F. B. I. to interview this man.

Justice Tom C. Clark: Is that why he went over there?

Mr. Howard A. Heffron: He went over there to find out precisely what had happened. Find out, I presume, whether or not the defendant had already made statements relating to these bank robberies.

Justice Felix Frankfurter: When you say presume, does the record shed any light itself?

Mr. Howard A. Heffron: No.

The record only -- it only appears in the record that he was interested in finding out what had occurred or what developments took place.

Now, there -- there are many differences between this case and the Anderson case.

We've attempted an exhaustive analysis of the Anderson record and we've made references in our brief.

The differences are many in -- in our view of decisive importance here.

In Anderson, it was a joint investigation of the same crime, blowing up of the TVA Lines which was both a federal offense and a state offense, a joint investigation of the same crime which resulted in the detention which was allegedly unlawful.

In Anderson, the arrest and detention were admittedly for the purpose of investigating the very crime upon which the F. B. I. was working together with the state police.

Here, the arrest and detention were in connection with an unrelated state offense.

In Anderson, the detention was for the purpose of permitting the F. B. I. to interrogate --

Chief Justice Earl Warren: What -- what offense?

What -- what particular offense now do -- do you mean the --

Mr. Howard A. Heffron: In this --

Chief Justice Earl Warren: -- unrelated offense?

The --

Mr. Howard A. Heffron: The Butcher robbery as well as the -- the alleged conspiracy to rob a tavern which was thwarted when -- when these men were apprehended by the city police.

Chief Justice Earl Warren: Is there anything in -- in the record besides the testimony of the police officers that they -- that they had arrested him for this butcher robbery?

Mr. Howard A. Heffron: Any -- anything other than the testimony of the police officer.

Chief Justice Earl Warren: Yes.

Was there anything on the record that -- that shows whether he was -- it just showed, did it not, that his arrest was for investigation?

Mr. Howard A. Heffron: Yes, well --

Chief Justice Earl Warren: Is there anything on the record that shows investigation for what?

Mr. Howard A. Heffron: Yes.

Well, there is a card, a booking card which is filled out when a prisoner arrives at -- at the detective headquarters portion --

Chief Justice Earl Warren: Yes.

Mr. Howard A. Heffron: -- of the jail.

That card shows under charge, it has a -- it has a -- an appropriate heading charge and it shows the butcher robbery as well as another crime, an unrelated straight -- state crime of burglary in Niagara Falls.

Now, there is some dispute --

Justice Hugo L. Black: Is that in the record, do you say?

Mr. Howard A. Heffron: Pardon.

Justice Hugo L. Black: Is that in the record?

Mr. Howard A. Heffron: Yes.

Justice Hugo L. Black: You don't remember the page, do you?

Don't bother if you do not remember, I'll find it.

Mr. Howard A. Heffron: Well, it -- the references to it appear at different portions of the record and they're cited in our brief.

Chief Justice Earl Warren: And was that to be in there simultaneously when he's being brought in or -- or at a later date?

Mr. Howard A. Heffron: Well, there is some question about that as Mr. Mahoney indicates.

A police officer Klenk testified that the charges were placed against the man on the 11th rather than the 10th.

I -- I think from a -- a fair reading of the record indicates that the officer was confused as to whether the -- the question or meant by charge, simply the state court or the state police's allegation of a charge which appeared on the card or the formal charge in Court.

The Chief of Police testified at one point that the -- the charge that he directed, that the charge be placed upon the card that afternoon.

So there is a conflict here.

Justice Felix Frankfurter: Mr. Heffron, on -- you just -- in the phrase, the police card, on page 82, what did the police card say and then the question, the QA that I put to Senator Mahoney, “What charges were placed against him on the 10th?”

Answer - investigation.

Am I to infer from your answer to the Chief Justice that on this -- that the answer “investigation” would appear to be more particularized on the police card, namely, that they put down the butcher shop robbery and whatever it is, and the other things.

Is that right?

Mr. Howard A. Heffron: Yes, the card itself indicates with particularity two separate and distinct charges, one for robbery and one for burglary.

Justice Felix Frankfurter: But state police -- the policeman here answered generally of investigation, that's what he --

Mr. Howard A. Heffron: Yes.

Justice Felix Frankfurter: And in due course, it wasn't -- find the record as to the --

Justice Hugo L. Black: Where is the card?

Justice Felix Frankfurter: Where is the card?

Is the card an -- as an (Inaudible)

Justice Hugo L. Black: That's what I -- it was --

Mr. Howard A. Heffron: The card is in exhibit and I assume that's with the clerk.

That's Government Exhibit 41 and at the time when the Chief of Police testified, he was asked whether he would explain about the card and he says -- it shows -- this is at Record 84, it shows on January 10th, 1957 at 3:45 p.m., he was booked, gave the address, the name, so and so, can read and write, charges 2124 of the penal law.

“What is that?”

“Robbery” “and does it show the complainant?”

“Yes.”

“Who was it?”

“Paul Redlinski.”

Then later on January 10th, at 4:15 he was booked on the charge of 404, the penal law or burglary and the third degree felony on the complaint of Albert Zydel.

Justice Felix Frankfurter: Mr. Heffron, can you tell (Inaudible) how many pages of the stenographic minutes of this trial that has gone to the clerk as against the printed record?

Mr. Howard A. Heffron: Well, in terms of the testimony which was developed at the preliminary hearing --

Justice Felix Frankfurter: The whole of proceeding.

Mr. Howard A. Heffron: The --

Justice Felix Frankfurter: The whole -- the whole proceeding.

How many --

Mr. Howard A. Heffron: Well the trial --

Justice Felix Frankfurter: -- stenographic -- how many pages from flimsy papers are filed with our clerk on the basis of which this record is made up about?

Mr. Howard A. Heffron: Oh, I would say over 1000 pages clearly.

Justice Felix Frankfurter: Over 1000 pages.

Mr. Howard A. Heffron: But I would say this that the bulk of the testimony at the hearings which pertained to the issue of the illegal detention and admissibility of confession by far, virtually all of that is in the printed record.

The remainder of the transcript relates to the actual testimony at the trial relating to the petitioner's participation in the robbery.

Justice Felix Frankfurter: I understand that but for all one know, there maybe some reference as to some of these matters in the -- in the trial on the merits to crop out somehow or other, what they did and what they didn't do, the police.

I suppose Mr. Mahoney did all he could to get our cross examination what he could get from him.

Mr. Howard A. Heffron: Well, the testimony at the trial was -- was actually a duplicate of what took place at the preliminary hearings.

Justice Felix Frankfurter: That makes it all the more important, is what took place?

Mr. Howard A. Heffron: Well, we know of nothing different in that transcript.

Justice Felix Frankfurter: I'm not suggesting.

All I'm saying is -- unnaturally (Inaudible)

Mr. Howard A. Heffron: Now, I was --

Justice Felix Frankfurter: (Inaudible)

Mr. Howard A. Heffron: -- going on with the difference between the Anderson case and this case.

In Anderson, there is testimony that the sheriff told the F. B. I. that his informant and that was a state informant, in Anderson.

That -- that the following named men were implicated in the -- in the blasting.

And that he intended to bring them in for the F. B. I. to interview.

And there is testimony that the F. B. I. agent said, “We concur to that extent.”

It's clear from the Anderson record that the purpose of arresting the man and the purpose of detaining them was so that the F. B. I. could interview them.

In the Anderson case, it is also clear that it was the F. B. I. interrogation which caused the length of the detention.

There, as I've said before, the arrest was for the purpose of permitting the F. B. I. to interview these men and they, in fact, did almost all the interviewing.

Justice Felix Frankfurter: They were -- what was the -- the largest number of hours of anyone of the various defendants involved in Anderson?

Mr. Howard A. Heffron: I believe it went six days.

Justice Felix Frankfurter: By the F. B. I.?

Mr. Howard A. Heffron: Yes, sir.

Now, in substance then, as we see it in the Anderson case, the investigations of both the State and the F. B. I. had so fused that it was appropriate to -- to charge the F. B. I. for the failure to arraign these men.

They had as much control in effect over them.

They benefited by the detention.

The detention was brought about so that they could interview the men.

It was proper under all the circumstances to charge the F. B. I. with the -- with the failure, failures of the state police who had formal custody to arraign these men.

And by the -- by the citation in the Anderson opinion, particularly the Byars case, which in effect held that where the investigation is joint and the federal agents participate in the illegality, the -- the acts must be treated as if the federal agents had performed them solely by themselves.

We say we don't have that sort of case here at all.

We have the F. B. I. investigating this man and in the course of their investigation, they receive information of an independent, unrelated state crime which is about to be committed.

They have no alternative even though it may jeopardize their investigation, even though an arrest by state police here will cut off the source of their information because their informant will no longer have access, even though it may run directly contrary to their own interest in finding out the names of additional accomplices, a place where the -- the money may have been hidden, where the firearms are.

Even though it may have run contrary to all these interests, there is no alternative under the circumstances but to advise the police in order to -- to postulate that that kind of cooperation is the kind of working arrangement which this Court condemned in Anderson, we say is just not correct.

Justice Hugo L. Black: What position do you take, if you have taken any, on whether the delay in arraignment was illegal under New York law?

Mr. Howard A. Heffron: We have assumed that it was illegal under New York law in our brief.

Now, this matter with respect to the working arrangement, this issue is an issue which was resolved against the petitioner by two District Judges and four Circuit Judges.

Justice Hugo L. Black: May I say that I asked clerk for Exhibit Number 41 and he says, no exhibits have been filed.

There's no (Inaudible)

Mr. Howard A. Heffron: I'm -- I just -- I don't know.

I didn't anticipate in having the record on appeal brought before this Court.

Justice Felix Frankfurter: May I put -- may I revert back to my question about what would have -- have happened if this had been the federal courts exclusively?

Suppose the -- suppose they had arrested the -- the petitioner at 9:00 o'clock and they've questioned him until 12:00, and had not arraigned them until -- arraigned him until 10:00 o'clock next morning, they're still (Inaudible) facts.

Would you --

Mr. Howard A. Heffron: At 9:00 p.m., I take it.

Justice Felix Frankfurter: I beg your pardon.

9:00 p.m.

Mr. Howard A. Heffron: 9:00 p.m.

Justice Felix Frankfurter: 9:00 p.m., they questioned him until 12:00, arraigned him at 10:00 o'clock next morning.

No more than that.

Would that be McNabb?

Mr. Howard A. Heffron: Well, I -- I would say that would depend on other circumstances whether the Commissioner --

Justice Felix Frankfurter: I said just those -- or -- or --

Mr. Howard A. Heffron: -- was -- was available at some point.

Justice Felix Frankfurter: So it falls back, just that.

Mr. Howard A. Heffron: I don't --

Justice Felix Frankfurter: You say there have to be more facts.

Mr. Howard A. Heffron: There have to be more facts.

Justice Felix Frankfurter: Alright, alright.

Chief Justice Earl Warren: We'll recess now.

[Recess]

Mr. Howard A. Heffron: Mr. Chief Justice, on the question of whether the New York state courts would exclude these confessions if this had been a state prosecution, our understanding that the New York Court of Appeals has not adopted any exclusionary rule, but on the contrary, it has expressly held that it is not bound by the Mallory decision and will not adopt a similar exclusionary rule.

So it is our understanding that these confessions would be admissible in a state trial.

As a matter of fact, we know of no jurisdiction which has adopted a rule similar to the McNabb-Mallory principle.

Wharton's Criminal Evidence, the most recent edition, states with respect to the McNabb principle, that following the adoption of the federal rule, the state courts have generally either expressly rejected it or ignored it.

And we know of no state jurisdiction which has held that a confession must be excluded where it was procured during a detention illegal under state law.

Justice Hugo L. Black: Mr. Heffron, my question had not quite gone that far.

I have to say, there's been any -- what was the law in New York without reference to this delay, is it legal or illegal, the delay, this length of time.

I -- I didn't ask about the exclusionary rule.

Mr. Howard A. Heffron: I see.

Justice Hugo L. Black: Did you look at --

Mr. Howard A. Heffron: We have -- we have assumed in our brief that under the circumstances of this case, the delay was illegal --

Justice Hugo L. Black: Well, that was the point I --

Mr. Howard A. Heffron: -- that this man should have been arraigned.

Justice Felix Frankfurter: New York has the common statute of requiring from the arraignments the -- the --

Mr. Howard A. Heffron: Yes.

That is correct.

Justice Felix Frankfurter: I'm not talking about what consequences follow.

Mr. Howard A. Heffron: That's right.

New York -- New York --

Justice Felix Frankfurter: But that's the meaning under the -- of the New York statute.

Mr. Howard A. Heffron: New York statute uses the same language as a federal rule, unnecessary delay.

Justice Hugo L. Black: Yes.

Well, that was still not quite what I was asking.

I think your answer and I want to be sure on that, under the circumstances here, are we to assume that it was illegal to get this man's statement without -- without arraigning him as the statute requires, illegally?

Do the circumstances here bring it toward in the promptness that's required by the state statute?

Mr. Howard A. Heffron: Yes.

We have assumed that the delay here was illegal.

Justice John M. Harlan: (Inaudible)

Mr. Howard A. Heffron: Yes, I believe they did.

Justice Potter Stewart: Mr. Heffron, there are a couple of two or three New York decisions cited at -- at the bottom of page 25 of the petitioner's brief in which he says, to answer the proposition that the willful violation, perhaps the keyword is willful, by the police of the prompt arraignment statute have been considered sufficient and I'm reading -- have sufficient cause for reversal of convictions in New York.

Can you tell us what your view of those cases is?

Mr. Howard A. Heffron: Well, I'm not familiar with the particular --

Justice Potter Stewart: (Inaudible) and Lovello, appear at page -- at the bottom of page 25, seem to be somewhat inconsistent of what you've just told.

Mr. Howard A. Heffron: As we understand it, there is no distinction taken in the New York cases between a willful violation or some other violation.

The New York Court of Appeals has expressly refused to adopt an exclusionary principle similar to the McNabb rule.

The Court of Appeals has stated that the legal nature of the detention is a factor which maybe considered in connection with all the other circumstances.

Justice William J. Brennan: Well, is that to say, Mr. Heffron that the mere illegality in the sense of too long delay is not itself a reason for reversal of a conviction?

Mr. Howard A. Heffron: Is not itself a reason for excluding a confession --

Justice William J. Brennan: I understand.

Now what's its effect on the conviction?

Illegal delay, is that of itself a basis for reversal?

Mr. Howard A. Heffron: No, no.

So far as we know, no.

Justice William J. Brennan: To these cases that Mr. Justice Stewart referred to, at least Mr. Mahoney has suggested do hold that unless the keyword is willful.

Mr. Howard A. Heffron: No.

Justice William J. Brennan: But they are --

Mr. Howard A. Heffron: No.

Justice William J. Brennan: -- and then a basis for --

Mr. Howard A. Heffron: It is our understanding that there is no such rule.

New York Court has indicated that where a request to charge is made which request the trial judge to charge that there was an illegal detention here and that that delay, an illegality in the detention maybe considered along with all the other factors in the case has bearing on the issue of voluntariness, New York Court of Appeals has held that such a charge should be given where it is requested.

Justice Potter Stewart: You have the cases cited in your brief also (Inaudible)

Mr. Howard A. Heffron: There -- yes, sir on page 43 of our brief.

Justice Potter Stewart: Page 43 (Inaudible) 28?

Mr. Howard A. Heffron: Yes, that's correct.

Now, the second point which petitioner makes here is one which assumes that there was no working arrangement, no cooperation, no joint investigation here such as would under the Anderson case, require exclusion of the confession.

This point urges that even though there been -- there has been no such cooperation that nevertheless the Court ought to hold that the confessions are inadmissible.

Now, we submit that there is no basis in the decisions of this Court for such a result.

Under that hypothesis, the McNabb-Mallory rule is inapplicable.

Federal agents have not disobeyed the mandate of the Federal Rules of Criminal Procedure.

They have done nothing wrong at all.

They have taken the prisoner as they found him and they have interviewed him.

There's no basis for the application of the McNabb restriction.

The Court has -- in dealing with evidence of this kind, this Court has never excluded this kind of evidence unless an exclusion was an implementation of a federal constitutional command, statutory or rule of procedure.

None of these is involved here.

Petitioner does not claim that he was deprived of any constitutional rights.

He does claim that he was -- that his detention violated a state rule of procedure and that would be the basis upon which he asked the Court to proceed.

Now the Court has never excluded evidence of this kind absent of violation of a federal constitutional command, statute or rule of procedure.

None of those are involved here.

The general rule at common law and as I've indicated in all of the state jurisdictions has been that a confession is nonetheless admissible despite any illegality in the detention which preceded it.

The test is one of voluntariness.

The illegal custody maybe a factor in determining whether the confession was voluntary, but no state jurisdiction has gone beyond that.

And indeed as we understand it, the rule in this Court prior to McNabb, the general common law rule on confessions was that a confession is inadmissible even if it is made while the prisoner is in custody so long as it is voluntary and meets the test of voluntariness and there's no issue here of voluntariness.

That question was not even raised below.

It was submitted to the jury and resolved against petitioner.

He did not raise it in the Court of Appeals.

He does not raise it here.

So this confession qualifies as admissible under the rules of all the states as far as we can tell, under the general common law principle regarding admissibility of confessions which this Court had -- had adhered to prior to the McNabb rule.

Now, if the circumstances do not call for application of the McNabb rule, that is if there is no finding here that federal officers in -- in someway were involved with the illegality and therefore should be disciplined by -- by an exclusion here, there's no basis as we see it upon which to exclude this confession.

Justice Felix Frankfurter: Mr. Heffron, as I -- if I correctly had heard, Senator Mahoney very early in his argument, or almost at the beginning, he was interrogated by Mr. Justice Harlan and he was asked whether he claimed that this is a coerced confession case.

And he said quite clearly and unambiguously the answer was no.

This is not a coerced confession case.

So then we've got at -- we've got in any event nothing more than some illegality under state procedure some illegality declared by the state law.

Now, you say in your footnote which Justice Stewart has called attention, your courts have construed the local arraignment statute as making -- is making it illegal for the police officers to delay.

You cite a lot of cases of which only one (Inaudible) is in the next paragraph in which you state in general rule of New York, that is illegally obtained evidence is not excludable.

What I want to put to you is this.

I don't want what one would have to -- I would have to read all those cases to find what that means.

It's illegal.

Does it that a policeman can be put on trial that he could be disciplined, that he could be discharged, that he could be sued for by the individual who detained him illegally, etcetera, etcetera.

At all events, it's not of a constitu -- of -- it's not of a constitutional -- as if this is not of significance, is that right?

Mr. Howard A. Heffron: That is -- that's right.

Justice Felix Frankfurter: Which brings me to the Perkins case -- to the Elkins case, you correct me but I understood the Elkins case to stand for the proposition that if what is done in the state proceedings, if what is done by a state official would if done by federal officials, as constituted a breach to the Fourth Amendment, constitutional violation, a violation of some constitutional right, it will be so -- the evidence will be dealt with as it would have been if it had been done by the federal officials, is that right?

Is that what Elkin says?

Mr. Howard A. Heffron: I think that's what it did say.

Justice Felix Frankfurter: Pardon me.

Mr. Howard A. Heffron: Yes.

I believe --

Justice Felix Frankfurter: The standard is the federal standard of constitutional analogy on the search and seizure.

Is that right?

Mr. Howard A. Heffron: Yes, I believe that's correct.

Justice Felix Frankfurter: Correct me if I'm wrong, I do not recall or rather thought the opposite that the case did not go on the proposition.

That if there was conduct in securing evidence, util -- sought to be utilized in the federal courts who's violated a state law, but not the Federal Constitution, that that evidence would be excluded merely if the -- let me put it clearly and squarely, if the federal -- if the federal prosecution avails itself of evidence illegally secured by state officials, such evidence is not excludable in the federal courts.

Is that right?

Mr. Howard A. Heffron: Yes.

That is my understanding.

Justice Felix Frankfurter: So then, the mere fact, no matter what illegality may involve in -- under New York law in these transactions, that in and of itself does not exclude the evidence in the federal courts.

Mr. Howard A. Heffron: That is our point here.

Justice Felix Frankfurter: And therefore, the only basis of dealing with this question or the problem -- the only problem is whether in fact the official -- the evidence was secured by the federal officials in circumstances, which if there had be no intervention of state authorities, they would be held responsible for it under McNabb.

Is that right?

Mr. Howard A. Heffron: That is correct.

That is as we see this case.

The petitioner has raised this point though and we are trying to deal with it as best we can.

If you eliminate the factor of federal cooperation to constitute a working arrangement within Anderson, you eliminate the basis for any rule of exclusion as it has been applied by this Court.

The Court has stated that the -- the fundamental purpose of the rule of exclusion is to prevent and not to repair.

Now, a rule of exclusion here would not serve any useful purpose by hypothesis on this branch of the argument.

Federal agents have done nothing wrong.

If anything illegal has been done, it's been done by state officials who have been engaged in investigating an independent state crime.

A rule of exclusion here would not serve to encourage state police to adhere to their own local rules of procedure on the possibility that during their investigation of an unrelated state crime, a confession to a federal offense might be obtained from the prisoner which would be admissible in the state court, but which would not be admissible in the federal court under the extension of McNabb proposed here by petitioner.

That would be a sanction but it would produce no desirable effect.

It would not be disciplining the state police and since by hypothesis, the federal agents here have done nothing wrong.

It would not serve any useful function with respect to them.

Once you eliminate McNabb and once you eliminate any deprivation of constitutional rights, we say that the Court is thrown back on the usual rule which applies to confessions, a rule which the States have applied and which this Court applied before it promulgated the McNabb rule as a means to enforce the mandate of the Federal Rules of Criminal Procedure.

When you resort to the normal common law rules of evidence here which all the State applied as far as we can tell and which this Court applied prior to McNabb, the only basis upon which this confession maybe excluded is that it was involuntary and there is no contention that it was involuntary here.

That being so as we see it, there is no basis upon which the confession can be excluded.

It was properly admitted.

Justice Felix Frankfurter: Just in the interest of that was -- you see Mr. Heffron, I had my recollection verified.

Michigan is the sole state in union which in 1960 adopted the Mallory rules, for your information.

Mr. Howard A. Heffron: Well, my information, I gather, was not as current as that.

As far as I could tell --

Justice Felix Frankfurter: And that's why I'm telling it to you.

Mr. Howard A. Heffron: But if I may summarize on this branch of the argument, absent involvement by federal officers the reason for applying a McNabb-Mallory rule of exclusion is not present.

There is no basis upon which to apply the sanction if there has been no unlawful conduct which is designed to punish.

And under the normal rules of evidence, a confession is admissible even though it is obtained while a prisoner is held in custody providing that it meets all the tests of voluntariness.

A confession here does meet those tests and therefore we say it was properly admissible and there's no basis in the McNabb rule to exclude it.

Chief Justice Earl Warren: (Inaudible)

Rebuttal of William B. Mahoney

Mr. William B. Mahoney: No reply Your Honor.

Thank you.