Evening star. [volume] (Washington, D.C.) 1854-1972, 1958-04-06

thing he says may be used against
him. He must admit the &C
cused to bail in all noncapital
cases and in capital cases where
the circumstances warrant it.
Unless the accused valves a pre-
liminary examination, the COM
missioner must hear the evil
dence against him within rea-
sonable time and discharge him
unless it appears that there Is
probable cause to believe he has
committed an offense.
Rule 5 is the law Of the land.
If a police officer fiouts its require
ments, he is flouting the law Of
the land. It has long been settled
that Federal officers cannot use the
fruits of their own wrongdoings
to secure convictions. Evidence Sc
cured by physical coercion. un-
lawful search and seizure. and
overlapping is for this reason in
admissible in the Federal courts.
In the celebrated McNabb case.
decided in 1913. the defendants
were questioned for an inordinate
length of time before they were
taken before a commissioner and
informed Of their rights. The
Supreme Court reversed their con-
victions on the ground that con-
LESSONS secured during such UNI
lawful detention could not be used
against them. The Mallory rule.
therefore, is nothing more than
the application Of a 15-year-old
principle in new case.
FouIty Logic
The principal argument adj
vanced against the Mallory rule is
actually the most cogent evidence
Of the necessity for it. The police
and the prosecutors point out that
the commissioner must release an
arrested person unless there is
probable cause" to believe that
he has committed q crime. They
then urge that they are often un-
able to show probable cause"
until they have secured a confess
sion.
This logic has one fatal flaw.
Under Rule 4 Of the Federal Rules
of Criminal Procedure, police Of
ficer cannot secure an arrest war
rant unless there is probable
cause" to believe that the arrested
person has committed crime.
This requirement is dictated by
the Fourth Amendment, which
provides that an arrest warrant
shall not issue except upon prob
able cause" The same require
ment Of probable cause" has al
ways applied to arrests without
warrant. II an arrest is lawful
under Rule and the Fourth
Amendment. therefore. there is al
ready probable cause" and no
confession is necessary in order to
hold the accused for action by the
grand jury.
II, on the other hand. there is
no probable cause" at the time
of the arrest. the accused should
not have been arrested to begin
with, and he should be promptly
taken before a commissioner and
released as the law requires.
When the police insist upon an
opportunity to question arrested
persons in order to develop prob
able cause" they are really asking
for the right to arrest upon sus-
picion. They are asking for the
right to arrest at large and inter-
rogate at leisure. This is q prac-
tice which has been universally
adopted by tota1itarian states.
II the police want the right to
make dragnet arrests they should
ask for a constitutional amend
ment. AS long as Rule 4 and the
Fourth Amendment remain on the
books. however. we should demand
that our law enforcement officers
obey them,
Bills Before Congress
Two bills are now pending be-
fore Congress to repeal the
Mallory rule. H. r. $500. which
was introduced by Representative
Heating Of New York aud which
has been approved almost in its
original form by the House Jul
dietary Committee. provides that
no confession shall be inadmissible
solely because Of a delay in taking
the defendant before a commits
sioner.
This bill is q license for lawless
law enforcement. 1t leaves UNI
changed the plain commandment
Of Rule S. But 1t invites the police
to ignore this commandment
whenever they need a confession
to validate an invalid arrest.
Thirty years ago. Mr.. Justice
Brandeis penned the classic in
dictment Of any system in which
the police are above law. He
wrote:
Crime is contagious. II the govern
ment becomes q low breoker, IL. breeds
contempt Tor low; il invites every mon
10 become o low unto himself; Il
invites onorchy. To declare thot in
the administration Of the criminal