The police officers denied holding Brown incommunicado and testified that he did not make a request to see anyone. Brown's first statement was obtained on the evening of April 27, 1957, a few hours after he had been transferred from the Youth Study Center. Most of the intervening time was spent in moving him to his ultimate destination (see footnote 5). Brown's second statement was given on the evening of April 29, after he had spoken with his father.
It is apparent that Judge Brown believed the testimony of the police officers and did not accept relator's testimony as credible. There is ample support in the record for the state court's finding.
To be admissible, a confession must be the product of a rational intellect and free will. Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961); United States ex rel. Smith v. Brierly, 267 F. Supp. 274 (E.D. Pa.), aff'd 384 F.2d 992 (3d Cir. 1967).
Since neither Miranda v. Arizona, supra, nor Escobedo v. Illinois, supra, are retroactive [ Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966)], the failure of the police officers to warn relator of his constitutional rights is only one factor in determining the voluntariness of a confession. Davis v. North Carolina, 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966). If the totality of the circumstances indicate that the confession was voluntary, it is admissible. Fuller v. United States, 132 U.S. App. D.C. 264, 407 F.2d 1199 (1967); United States ex rel. Kern v. Maroney, 275 F. Supp. 435 (W.D. Pa. 1967). The circumstances surrounding the obtaining of the confessions must be examined to determine the cumulative impact on relator's mind. See Moser v. United States, 381 F.2d 363 (9th Cir.), cert. denied, 389 U.S. 1054, 88 S. Ct. 802, 19 L. Ed. 2d 850 (1967); United States ex rel. Heath v. Rundle, 298 F. Supp. 1207 (E.D. Pa. 1969).
I am satisfied from the review of the state record that Brown's confessions were the product of a rational intellect and free will. He had had confrontations with the law before, and hence, was not unfamiliar with police interrogation procedures. There was no constant or prolonged questioning; no use of physical or psychological force; no trickery or cajolery. There was no evidence, except for relator's own testimony which Judge Brown apparently did not believe, that relator was held incommunicado. Such an assertion, furthermore, is refuted by the short period of questioning involved before relator's first written statement [ cf. United States ex rel. Johnson v. Rundle, 286 F. Supp. 765 (E.D. Pa. 1968)] and by his father's visit prior to his second confession. Under such circumstances, I agree that the confessions were voluntary. See United States v. Moriarty, 375 F.2d 901 (7th Cir.), cert. denied, 388 U.S. 911, 87 S. Ct. 2116, 18 L. Ed. 2d 1350 (1967); United States ex rel. Johnson v. Rundle, supra ; United States ex rel. Kern v. Maroney, supra.
2. Arrest and Seizure.
Brown contends that he was illegally seized by police officers when he was transferred from the Youth Study Center. In effect, he argues that the transfer constituted an illegal arrest and the confessions were the fruit of that unlawful conduct. The argument is without merit. The "sole physical attribute of an arrest is the taking into custody." Rigney v. Hendrick, 355 F.2d 710, 713 (3d Cir. 1965), cert. denied, 384 U.S. 975, 86 S. Ct. 1868, 16 L. Ed. 2d 685 (1966). In the instant case relator was already in proper custody of state officials. It would be anomalous to require the re-arrest of a person already in custody. Rigney v. Hendrick, supra ; Hayes v. United States, 367 F.2d 216 (10th Cir. 1966).
Since the state record reveals that none of the claims presented by relator's petition are meritorious, the writ will be denied, without hearing.