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March 28, 1985

JOSE RAMOS, Defendant

The opinion of the court was delivered by: KRAM



 The defendant, Jose Ramos, has moved pursuant to Rule 41 of the Federal Rules of Criminal Procedure to suppress as evidence post-arrest statements made by him to Assistant United States Attorney Robert L. Folks prior to his presentment before a United States Magistrate. For the reasons stated below, the motion to suppress is DENIED.


 Mr. Ramos was arrested at approximately 4:00 p.m. on December 13, 1984, in the vicinity of West 111th Street and St. Nicholas Avenue, for allegedly steering an undercover agent to a seller to purchase cocaine. He was taken to the 26th Police precinct, at 530 West 126th Street, for processing. There, he was fingerprinted, photographed, and interviewed by the arresting officers regarding his name, age, address, etc.

 At 8:50, some five hours after his arrest, he was interviewed at the 26th Precinct by Assistant United States Attorney Folks for a period of twenty minutes. At this interview, Mr. Ramos was advised by AUSA Folks that he had a right to remain silent and a right not to answer any questions. He was further advised that he had a right to counsel; that, if he could not afford one, an attorney would be appointed for him; and that an attorney could be appointed before the interview and could be present during the interview if desired. After each statement of rights, Mr. Ramos was asked if he understood the statement. Mr. Ramos responded, in most cases with a nod, that he understood all the rights described. *fn1" Mr. Ramos was then asked questions about his background. Thereafter, Mr. Ramos was asked questions, and made certain statements, relating to the conduct for which he was arrested. Following the interview, Mr. Ramos was taken to the Metropolitan Correctional Center, where he was held overnight.

 The next day, Mr. Ramos was processed by the United States Marshal's Service and interviewed by a Pretrial Services Officer, who prepared a written report. Some time that afternoon, he was taken to the United States Magistrate's courtroom, where, for the first time, he spoke to the attorney appointed to represent him. He was presented before a Magistrate at 2:30 p.m.

 Mr. Ramos was formally charged in a two count indictment, handed up on January 4, 1985, with the alleged conduct which led to his arrest on December 13, 1984. Mr. Ramos was arraigned on January 11, 1985, on the charges contained in that indictment, and pled not guilty. The case was assigned to me. This motion to suppress the statements Mr. Ramos made to AUSA Folks in the interview the night before his presentment ensued.


 The admissibility of confessions is governed by section 3501, Title 18 United States Code. Section 3501(a) provides that a confession shall be admissible in evidence "if it is voluntarily given." There is no allegation here that Mr. Ramos gave his statements to Mr. Folks other than voluntarily. Moreover, section 3501(c) provides that a confession may be suppressed if more than six hours have elapsed between the arrest and the making of the confession, unless the delay is found to have been reasonable. United States v. Perez, 733 F.2d 1026 (2d Cir. 1984). In Perez, Judge Weinfeld had suppressed statements similar to those at issue here because they were made in an interview with an AUSA some eight hours after arrest, and because the delay in presenting the defendant before a magistrate, almost twenty-four hours after arrest, was unreasonable. Id., aff'g United States v. Toney, 579 F. Supp. 652 (S.D.N.Y. 1984). Mr. Ramos's statements were made approximately five hours after his arrest, so they do not fall within this provision. Under the governing statute, therefore, Mr. Ramos's statements would not be suppressed. See Toney, 579 F. Supp. at 656 ("A statement obtained within six hours of arrest is not inadmissible solely because of pre-arraignment delay, under 18 U.S.C. ยง 3501(c).").

 The defendant nevertheless argues that these statements should be suppressed. Mr. Ramos challenges the practice of pre-presentment interviews of arrested persons followed by the United States Attorney's Office in this district *fn2" on two grounds: first, that it causes unnecessary delay in the presentment of arrested persons before a United States Magistrate, in violation of Rule 5(a) of the Federal Rules of Criminal Procedure; second, that it prevents indigent defendants like himself from intelligently and knowingly exercising or choosing to waive their Fifth and Sixth Amendment rights with the benefit of advice from a neutral judicial officer, and is therefore unconstitutional.

 Rule 5(a) of the Federal Rules of Criminal Procedure provides in pertinent part that "any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate" (emphasis added). Courts, enforcing Rule 5(a) (and its predecessor statutes), had long held that the violation of a defendant's right to prompt presentment before a magistrate required the suppression of any confessions made by the defendant after arrest. See Mallory v. United States, 354 U.S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957); McNabb v. United States, 318 U.S. 332, 87 L. Ed. 819, 63 S. Ct. 608 (1943). This exclusionary rule, derived from the court's "supervisory authority over the administration of criminal justice in the federal courts," id., 318 U.S. at 341, is known as the McNabb-Mallory rule.

 Defendant argues here that the general practice of the United States Attorney's Office in interviewing defendants prior to presentment perforce unnecessarily delays that presentment in violation of Rule 5(a). Essentially, defendant is urging this Court to apply the McNabb-Mallory rule to all pre-presentment interviews and suppress any confessions derived therefrom. Congress, however, in enacting section 3501(c), has restricted the application of the McNabb-Mallory rule. See Perez, 733 F.2d at 1035. As discussed above, pre-confession delays of less than six hours no longer lead to the suppression of confessions solely based on delay. Thus, Rule 5(a) and section 3501(c) are in pari materia and must be construed together. Rule 5(a) cannot be said to have been violated when the AUSA interview, and the resultant confession, occurs within six hours of arrest, at least not, as here, where that interview in no way affects the speed with which the defendant is presented before a magistrate. *fn3"

 Even if the application of section 3501(c) does not preclude the suppression of Mr. Ramos's confession under Rule 5(a), the delay in presenting Mr. Ramos before a magistrate was not unnecessary. He was arrested late in the afternoon, and his processing at the police precinct evidently took some time. By the time the standard, appropriate processing at the police precinct was completed, there was no Magistrate or Pretrial Services Officer on duty before whom Mr. Ramos could have been taken. Accordingly, it was necessary to hold him overnight, and defer processing him to the next morning. Lodging a defendant overnight because no magistrate is available does not constitute an unnecessary delay in bringing the defendant before a magistrate. United States v. Marrero, 450 F.2d 373, 378 (2d Cir. 1971), cert. denied, 405 U.S. 933, 30 L. Ed. 2d 808, 92 S. Ct. 991 (1972). The ...

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