OPINION OF THE COURT
HASTIE, Circuit Judge.
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.1 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 Gock-ley to bring in for inspection the contract and the power of attorney. Felt-man questioned Gockley again in September and again asked to see the documents mentioned and requested during the earlier interview. Feltman and Gock-ley met again, apparently by chance, in October and Gockley mentioned Clement Smith as a person likely to have informa[234]*234tion 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 cheek 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 Gock-ley 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 [235]*235his 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 “cdl 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.
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OPINION OF THE COURT
HASTIE, Circuit Judge.
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.1 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 Gock-ley to bring in for inspection the contract and the power of attorney. Felt-man questioned Gockley again in September and again asked to see the documents mentioned and requested during the earlier interview. Feltman and Gock-ley met again, apparently by chance, in October and Gockley mentioned Clement Smith as a person likely to have informa[234]*234tion 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 cheek 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 Gock-ley 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 [235]*235his 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 “cdl 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. 488, 83 S.Ct. 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 ‘[s]ix or seven officers had broken the door and followed on Toy’s heels into the bedroom where his wife and child were sleeping’ and ‘[h]e 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 [236]*236such 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 Felt-man, 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 p. m. or 12:15 a. m., depending upon which of Captain Feltman’s statements of his recollection is accurate.
During the morning of November 19, the prisoner was removed from the City [237]*237Hall lockup to the State Police Barracks outside of the city, admittedly to facilitate questioning. Interrogation continued from 11:00 a. m. until 2:00 p. m. by which time the information incorporated in the statement bearing that date had been obtained. During the interrogation of November 19, there was some discussion of counsel. Gockley’s testimony is that he requested counsel and was told that he could not have counsel until the police had a sufficient case against him. Captain Feltman’s stated recollection was: “I didn’t at no time say I would see the judges to get him — who am I to see the judges to get him a lawyer?”
On the transcripts of the trial and the habeas corpus hearings, we find the conclusion inescapable that, knowing they had insufficient evidence to prosecute Gockley, the police arrested and detained him for the purpose of questioning him without interruption, at greater length and more frequently and effectively than could have been done while he was at large, and thus building a criminal ease against him. And this intended result was achieved. The “fruit” which the police intended to harvest and did harvest from the illegal arrest and detention was the very statement that is now challenged. That statement was “directly derived from, and thereby tainted by * * * [Gockley’s] illegal arrest” and detention. See Commonwealth ex rel. Craig v. Maroney, supra, 348 F.2d at 29.
In these circumstances, there is no need to inquire whether the prisoner was forced to talk or merely induced to do so without coercion beyond that inherent in persistent interrogation during illegal detention. If the police are to be deterred from using illegal arrest and detention as a means of obtaining self-incriminating statements, evidence thus obtained must be excluded.
A second statement made by Gockley on December 8 was also introduced in evidence. It purports to be an amplification and correction of what he said on November 19. Gockley had remained in custody during the intervening period. He had been subjected to further interrogation. He had not had access to counsel. Indeed, he had not communicated with anyone but the police.
True, on the basis of the November 19 statement a warrant had been issued charging him with murder and his detention thereafter may be viewed as grounded upon that charge. But because he never was free to communicate with friends or counsel and made the second statement as an amplification of the first, the invalidating taint of the first statement infected the second as well. Both were fruits of the illegal November detention for the purpose of interrogation.
The dissenting opinion correctly poses the critical questions in this case: whether Gockley’s arrest was illegal and, if so, whether his statements to the police were the “fruits” of such illegal arrest. The record shows without significant conflict in testimony the facts known to the police when they arrested Gockley on a charge of forgery. What divides the court is a difference in judgment whether those facts sufficed to create in the mind of a reasonably cautious man anything more than suspicion that Gockley had forged a signature on the check in question.2 Similarly, the relation of arrest and detention to the prisoner’s admissions does not depend upon any dispute as to what in fact happened. We differ only in the significance we attach to essentially undisputed facts.
The majority find the relation of cause and effect between illegal detention and the detainee’s statement to be direct and unmistakable, particularly since it is clear that detention was intended to fa[238]*238cilitate further interrogation needed to build a case, rather than the prompt charging of the suspect on evidence already at hand. We have pointed out in this connection that the excuse given by the police for not taking Gockley before a magistrate was that they still were questioning him. The dissenting opinion counters with the argument that the fact that 44 hours (of which 12 or 15 were devoted to interrogation) elapsed between arrest and completion of the prisoner’s first statement “provided ample time for dissipation of any taint obtaining from the arrest.” But the wrong in this case, the “taint,” is not merely the illegality of the initial arrest but also the illegality of the continuing detention pursuant to illegal arrest for the purpose of controlled, persistent and repeated questioning such as could not have been accomplished without arrest and detention. “It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on ‘probable cause.’ ” Frankfurter, J., in Mallory v. United States, 1957, 354 U.S. 449, 456, 77 S.Ct. 1356, 1360, 1 L.Ed.2d 1479. This is as true of state officers as of the federal officers whose conduct Mr. Justice Frankfurter condemned.
The dissent also reasons that testimony to the effect that Gockley suffered from “paranoia vira,” a condition that made him a compulsive talker with “delusions of grandeur,” somehow insulated the illegal arrest and detention from the prisoner’s statements. But when the illegal detention is intended to and does enable the police to question the suspect more persistently and effectively than otherwise would have been possible, the fortuitous circumstances that a trait of personality may have facilitated the enterprise is beside the point. We are dealing with a consequence of violation of the Fourth Amendment, not a question whether a confession was coerced within the meaning of the Fifth Amendment. Indeed, this point in the dissenting argument amounts to no more than saying that Gockley’s personality defect may have made unconstitutional procedure work better than it might have worked with some other suspect.
Part III of the dissenting opinion addresses itself to the question whether Gockley’s statements were so coerced that their procurement violated his Fifth Amendment privilege against compulsory self-incrimination, despite the fact that the court has not found it necessary to decide or even discuss that question in this opinion. Rather, we have undertaken to demonstrate that the evidence in question was the product of illegal arrest and detention, and thus was obtained in violation of the Fourth Amendment guarantee against unreasonable search and seizure. We now observe merely that the Fifth Amendment issue dealt with by the dissent is not free from doubt, since it required between 12 and 15 hours of interrogation during a 44-hour period of detention to obtain the challenged statement; throughout this period the prisoner was denied counsel, and the police would not take him to a magistrate until they had obtained the admissions they sought. In cases of this sort, there is no sure way of locating the boundary between persuasion and coercion. And there is no need to make the attempt here.
Part IV of the dissenting opinion questions whether “federal habeas corpus is an appropriate vehicle for the vindication of the fourth amendment rights” that have been violated in the manner of procuring otherwise competent evidence. The short, but in a lower court conclusive, affirmative answer to this question has been given by the Supreme Court in the already quoted dis-positive language of Mapp v. Ohio, supra, that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” The Court has consistently adhered to that holding. The dissent finds comfort in the fact that dissenting Justices occasionally have expressed dissatisfaction with the Mapp [239]*239rule. But that does not make it any less binding upon us. Indeed, Chief Justice Burger, in his most recent and elaborate criticism of the Mapp rule has been at pains to add that he would not “abandon the Suppression Doctrine until some meaningful alternative [statutory remedy against governments for police violations of Fourth Amendment rights] can be developed.” See Bivens v. Six Unknown Fed. Narcotics Agents, decided June 21, 1971, 403 U.S. 388, 420, 91 S.Ct. 1999, 2017, 29 L.Ed.2d 619. Otherwise, he feared that the police might gain the impression that “an open season on ‘criminals’ had been declared.” Id.
This does not mean that the majority would subscribe to the dissenting view if this court were free to do so. More than ten years ago, the writer of this opinion attempted to state the rationale of decisions like this in Bynum v. United States, 1958, 104 U.S.App.D.C. 368, 262 F.2d 465, 468-469, and language there used has been quoted with approval as recently as Davis v. Mississippi, 1969, 394 U.S. 721, 725, n. 4, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676:
“* * * [T]he matter of primary judicial concern in all cases of this type is the imposition of effective sanctions implementing the Fourth Amendment guarantee against illegal arrest and detention. Neither the fact that the evidence obtained through such detention is itself trustworthy or the fact that equivalent evidence can conveniently be obtained in a wholly proper way militates against this overriding consideration. It is entirely irrelevant that it may be relatively easy for the government to prove guilt without using the product of illegal detention. The important thing is that those administering the criminal law understand that they must do it that way. * * * ”
Mr. Justice Brennan, speaking for the Court in Miller v. United States, 1958, 357 U.S. 301, 313, 78 S.Ct. 1190, 1197, 2 L.Ed.2d 1332, expressed the central concept this way:
“We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of criminal law proves that tolerance of shortcut methods in law enforcement impairs its enduring effectiveness. * * * ”
In the Mapp case itself, Mr. Justice Clark stated in some detail why, in the Court’s view, the Fourth Amendment requires “that no man is to be convicted [in a state or federal court] on unconstitutional evidence.” 367 U.S. at 657, 81 S.Ct. at 1692. He considered and rejected the often repeated complaint that the “criminal is to go free because the constable has blundered.” Ordinarily, it is not the “blundering” constable but the official who deliberately uses constitutionally prohibited means of obtaining evidence, as was done in Gock-ley’s case, whose work product cannot constitutionally be used as evidence. Moreover, it is not ordered in these situations that the “criminal go free,” but rather that the accused be retried on constitutionally acceptable evidence. It is this requirement that, in Mr. Justice Clark’s words, “founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.” 367 U.S. at 660, 81 S.Ct. at 1694.
One other innovation proposed by the dissenting opinion calls for comment. It is argued that federal habeas corpus should not be granted to a prisoner who has been convicted by a state court, absent an allegation and some indication of ultimate innocence by the [240]*240prisoner. And it is concluded that ha-beas corpus should be denied here because Gockley has not asserted his innocence and the evidence of guilt is substantial.
Of course Gockley pleaded not guilty at his arraignment, so it is not clear what would be gained by requiring him to do so again in his petition for habeas corpus. In any event it is proposed that beyond asserting innocence, the petitioner should be required to persuade the federal court that there is some substantial doubt of his guilt. Presumably, if this requirement were imposed, both sides would be entitled to introduce evidence on the issue of guilt or innocence in the habeas corpus proceeding. At the conclusion of this quasi-trial, the federal court would be entitled to deny habeas corpus on the ground that the state record and whatever new evidence had been introduced left the court convinced of the petitioner’s guilt. In the view of the majority, such inquiry whether the accused is guilty is a. role appropriate only for the courts of the accusing state. The federal courts should confine their inquiry to the fairness of the state procedure that led to conviction. Of course if the unfair procedure clearly did not prejudice the accused, it could properly be disregarded. Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. But here the challenged admissions of the prisoner provided the only basis upon which the jury could have found malice aforethought.
In sum, the dissenting opinion expresses considerably more than a preference for the rule of Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, rather than Mapp v. Ohio, supra, that overruled Wolf. It seems to advocate retreat on a rather broad front from principles and concepts that now govern federal action upon applications of state prisoners for habeas corpus. For the reasons we have stated, this court is not persuaded that such retreat is permitted under the authoritative pronouncements of the Supreme Court.
The judgment will be reversed. The district court will order the release of Gockley unless, within a reasonable period to be specified in that court’s order, the state shall grant the prisoner a new trial.