Hastie, Chief Judge,*fn* and Adams and Gibbons, Circuit Judges. Adams, Circuit Judge (dissenting).
Appellant Gockley, a state prisoner, is serving a ten to twenty year term of imprisonment after conviction of murder in the second degree of Clement Smith. The conviction was affirmed by the Supreme Court of Pennsylvania. Commonwealth v. Gockley, 1953, 411 Pa. 437, 192 A.2d 693.
In a petition to the district court for habeas corpus Gockley has alleged that his conviction was unconstitutionally obtained through the use of an involuntary confession extracted while he was under illegal arrest.*fn1 After a full hearing the district court held that the questioned confession was made voluntarily while the accused was under lawful arrest. Accordingly, the petition was denied. E.D.Pa.1970, 314 F. Supp. 839. This appeal followed.
We consider first the circumstances of Gockley's arrest as established by the record. Properly concerned about the March, 1960 disappearance of Mabel Klein, a local resident, the Reading police sought intermittently for several months to discover her whereabouts. In August, hearing that Gockley had been seen working on the Klein premises, police Captain Feltman questioned him about the missing woman. He explained that she had gone to Georgia, that she had left him with a power of attorney and a contract to make some repairs on her property, and that she telephoned him periodically. Feltman asked Gockley to bring in for inspection the contract and the power of attorney. Feltman questioned Gockley again in September and again asked to see the documents mentioned and requested during the earlier interview. Feltman and Gockley met again, apparently by chance, in October and Gockley mentioned Clement Smith as a person likely to have information about Mabel Klein. Upon inquiry, the police discovered that Smith also had disappeared and learned that, upon the basis of an authorization purportedly signed by Smith, his personal effects had been surrendered to Gockley. On October 31, the police once more asked to see the power of attorney and the repair contract. On this occasion they accompanied Gockley to his home where he produced and surrendered two documents, both bearing the purported signature of Mable Klein. On November 14, Captain Feltman sent the documents to the Federal Bureau of Investigation in Washington for hand writing analysis. Expert examination indicated that the signatures probably were not genuine and in December the documents were returned to Feltman.
In the meantime, on November 16, two days after the documents had been sent to Washington, a Policewoman Wanger appeared before a magistrate and executed and submitted her affidavit as follows:
"That on information received which affiant, upon investigation, verily believes to be true that one EDWIN W. GOCKLEY did fraudulently make, sign, alter, utter and publish a certain check in the sum of $200.00 dated March 8, 1960, payable to cash, and drawn on City Bank and Trust Company of Reading, Pennsylvania, and did sign the name of MABEL L. KLEIN to said check, to the prejudice of said MABEL L. KLEIN and with intent to defraud the said MABEL L. KLEIN contrary to an Act of Assembly in such case made and provided."
Upon the basis of this affidavit, the magistrate issued a warrant for Gockley's arrest for alleged forgery. Subsequently, the magistrate testified that he had no recollection whether he was given any other information than that set out in the affidavit. The state has offered no proof that anything more was told to the magistrate.
The district court, appropriately citing Giordenello v. United States, 1958, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503 held the warrant invalid because it did not appear from the affidavit or otherwise that the magistrate was supplied with particular facts from which he could reasonably have reached an independent conclusion that there was probable cause to believe that Gockley had forged the checks in question. We agree that the present record compels the conclusion that the arrest warrant was invalid. Cf. Whiteley v. Warden, decided March 29, 1971, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306.
On November 17, a Reading police captain and a state police officer took Gockley into custody under the illegal arrest warrant. However, the district court held, as urged by the appellee, that the arrest was legal because the police had enough incriminating information to constitute probable cause justifying an arrest without a warrant.
Since Gockley was arrested on a charge of forging a specified check, our inquiry must be whether the police had information which would "warrant a man of reasonable caution in the belief" that he had forged that document, Carroll v. United States, 1925, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L. Ed. 543. It is not enough that the information at hand sufficed to arouse suspicion. Henry v. United States, 1959, 361 U.S. 98, 101, 80 S. Ct. 168, 4 L. Ed. 2d 134.
Certainly Gockley's statements about the disappearance of Smith and Miss Klein, coupled with the subsequent inability of the police to find any confirmation of his assertions concerning their whereabouts, were suspicious circumstances. So too was his delay in producing Miss Klein's "power of attorney." Yet there is nothing to show that the signatures on the documents he ultimately produced and surrendered or on the check upon which the charge of forgery was based were obvious forgeries. Indeed, the action of the police, some two weeks after Gockley surrendered the document and only two days before they sought a warrant for his arrest, in sending the power of attorney to the FBI for report whether or not it seemed genuine indicates that at the time of the arrest, the police were merely suspicious of Gockley's conduct and doubtful about the authenticity of the documents. Without more to confirm those proper suspicions we think that the arrest must be characterized as having been made without probable cause.
We conclude that Gockley's arrest on November 17 and his detention through November 19, the day during which he made an incriminating statement concerning Smith's disappearance that thereafter was introduced in evidence against him on a subsequent charge of murdering Smith, were illegal.
This brings us to the question whether the relation of the illegal arrest and detention to the prisoner's statement was such as to make the subsequent use of that statement as evidence against him a denial of due process of law, regardless of any other coercive circumstances.
In Mapp v. Ohio, 1961, 367 U.S. 643, 655, 81 S. Ct. 1684, 1691, 6 L. Ed. 2d 1081 the Supreme Court announced that " all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." (italics added) Two years later, in Wong Sun v. United States, 1963, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441, the Court made the admissibility of challenged statements of suspects after their illegal arrest turn on the question whether the statements had "been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint." 371 U.S. at 488, 83 S. Ct. at 417.
Judge, now Chief Judge, Friendly, concurring in Collins v. Beto, 5th Cir. 1965, 348 F.2d 823, has pointed out that Wong Sun involved statements of two accused persons and that the rationale of the decision is illuminated by the Court's invalidation of the statement of one but not of the other:
"* * * Wong Sun prohibits the introduction in a state criminal trial of a confession that is the result of an arrest violating the Fourth Amendment, just as Mapp prohibits the reception of an object obtained through an unconstitutional search. Where the problems become different is the less clear causal relation between the unconstitutional act and the 'fruit.' When the police, by a search violating the Fourth Amendment, seize contraband or overhear a conversation disclosing the location of stolen goods, the connection between the unconstitutional intrusion and the booty offered at trial is so automatic and inevitable that the latter is readily seen as the 'fruit' of the unconstitutional act. But when the object improperly seized is a person and the alleged 'fruit' is a statement by him, there intervenes the individual's own decision to speak. In Wong Sun itself the causal problems were at the temporal extremes. Toy's statement, which the Court required to be excluded along with the narcotics to which it led, came directly after 'six or seven officers had broken the door and followed on Toy's heels into the bedroom where his wife and child were sleeping' and 'he had been almost immediately handcuffed and arrested.' 371 U.S. at 486, 83 S. Ct. at 416. By contrast, Wong Sun's statement, held to have been properly admitted despite his unlawful arrest, was made after he 'had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement * * *.' 371 U.S. at 491, 83 S. Ct. at 419." 348 F.2d at 834-835.
Also illuminating is the more recent case of Davis v. Mississippi, 1969, 394 U.S. 721, 89 S. Ct. 1394, 22 L. Ed. 2d 676, where the question was whether due process required the exclusion of fingerprints obtained in booking a prisoner after an illegal arrest. In excluding such evidence, the Court analogized and affirmed the rule of Wong Sun, saying:
"We agree with and adopt the conclusion of the Court of Appeals for the District of Columbia Circuit in Bynum v. United States, 104 U.S.App.D.C. 368, 370, 262 F.2d 465, 467 (1958):
'True, fingerprints can be distinguished from statements given during detention. They can also be distinguished from articles taken from a prisoner's possession. Both similarities and differences of each type of evidence to and from the others are apparent. But all three have the decisive common characteristic of being something of evidentiary value which the public authorities have caused an arrested person to yield to them during illegal detention. If one such product of illegal detention is proscribed, by the same token all should be proscribed,'" 394 U.S. at 724, 89 S. Ct. at 1396.
True, as Judge Friendly pointed out in his above quoted analysis, the direct causal relation between an arrest and an incidental seizure of an article in the possession of the person arrested, or between an arrest and the fingerprinting required in the booking of all arrested persons, is clear and direct. On the other hand the relation between an arrest and a statement given during the consequent detention may be more attenuated. But the Davis opinion shows that all are to be treated alike, at least so long as the evidence obtained can fairly be said to be the "fruit" or "product" of the arrest.
This court has recognized the causal issue that is relevant where a statement is obtained during illegal police detention following an illegal arrest. In Commonwealth of Pennsylvania ex rel. Craig v. Maroney, 1965, 348 F.2d 22, we said:
"There are two factors which seem to be of major significance in determining the relationship between an illegal arrest and, as here, the subsequent confession:
(a) the proximity of an initial illegal custodial act to the procurement of the confession; and
(b) the intervention of other circumstances subsequent to an illegal arrest which provide a cause so unrelated to that initial illegality that the acquired evidence may not reasonably be said to have been directly derived from, and thereby tainted by, that illegal arrest." 348 F.2d at 29.
The arrest of Gockley on November 17 was much more than a causa sine qua non of his November 19 statement during the resulting detention. The record compels the conclusion that the very purpose of the arrest on a charge of forgery was to obtain and maintain such control over him as would facilitate persistent and effective interrogation about the disappearance of Smith and Miss Klein. This deliberate misuse of arrest is underscored by the fact that Gockley was never granted an arraignment or a bail hearing on the forgery charge. At the hearing in the district court on this petition for habeas corpus, Captain Feltman, the Reading police officer who had been in charge of the Gockley case, was asked why Gockley was not taken before a magistrate. He replied that he did not know, except that they were questioning him. Moreover, much of the questioning was addressed to the obtaining of information about the disappearance of Smith and Miss Klein, rather than the forgery charge upon which he never was prosecuted.
While Captain Feltman's several statements in the record as to the length of the periods of interrogation are to some extent conflicting, fairly read they show police interrogation of the prisoner for several hours during the evening of November 17, shortly after his arrest. He was questioned again during the day of November 18. And that night he was questioned from 7:00 or 8:00 p.m. to 11:30 ...