LEYENTHAL, Circuit Judge:
On a three-count indictment charging first degree felony-murder, first degree premeditated murder, and rape, appellant was found guilty as charged on counts one and three and convicted of manslaughter as a lesser included offense of the second count. A motion for a judgment of acquittal notwithstanding the verdict on the rape count was denied. United States v. Fuller, 243 F.Supp. 203 (D.D.C.1965). Concurrent with a life sentence for the felony-murder, he has been sentenced to 5-to-15 and 10-to-30 years respectively for manslaughter and rape. On this appeal he challenges the admission into evidence of two incriminatory oral statements and the search [1204]*1204for and seizure of some of his wearing apparel, introduced at trial.
I
Some time Sunday morning, August 16, 1964, an assailant accosted a 57-year old Negro woman as she walked along a Washington street, dragged her into an alley behind some stores, and while assaulting her sexually, caused her death by a blow on the head. The body was found the next day lying in a stairwell at the rear of a house. The two police officers investigating the crime, both detectives, found several items strewn about the scene of the crime and obtained other items picked up in the vicinity by others prior to the discovery of the body. One of these items was a small, red address book which a storekeeper found in a water drain behind his shop shortly after he opened for business Monday. On the first page of this book appeared the name and address of William H. Fuller, the appellant. After interviewing persons in the neighborhood in a vain search for eye-witnesses, the two officers drove to the address indicated in the book, asked for appellant, and learned he was at work at the Washington Suburban Sanitary Commission in nearby Maryland. They were taken to his place of employment by a Montgomery County officer, in an unmarked police car. They had the supervisor locate appellant, and identified themselves to appellant. By this time it was about 4:00 p. m. on August 17, the day after the homicide.
At this point, the facts are contested. But two separate hearings were held before two different District Judges who had and evidently utilized the opportunity to observe demeanor and evaluate relative credibility. The testimony at both hearings was substantially identical, and both judges reached similar conclusions. The facts, as found by those judges,1 are these:
The officers told appellant that they wanted to speak with him about an incident in Washington, that he did not have to talk to them, but that if he chose to talk to them the interview could be héld either on the spot or at a local police station. It was quitting time and the premises were crowded and noisy, with garbage trucks returning to their garages and men leaving for the day. Appellant said he had no objection to accompanying the three officers to the Montgomery County police station. This was about 4:05 p. m. Appellant testified that he considered himself under arrest, though he conceded he was not then told he was under arrest.
On arrival at the Silver Spring police station at about 4:15, the Metropolitan police officers and appellant were given a small, unused office in the back of the station for their talk. He was told about the subject of the investigation and discussed his activities over the weekend. When he was asked about the crime, he said he didn’t know anything about it. The officers showed him the address book, and appellant admitted it was his. Asked if he could explain how it got to the scene of the crime, he said he had lost it. Shortly thereafter appellant asked what would happen if he told them about it. He was told that if it concerned the crime, he would be placed under arrest and whatever he said might be used against him. He asked if his mother would have to know and was told she would find out if he admitted committing the crime. Appellant then said that he “grabbed the woman.” This statement came shortly after the interview began, about 10 minutes according to the officers, about 15 minutes according to appellant. The officers then announced appellant was under arrest, advised him that he did not have to make a statement and that any statement could be admitted in evidence against him. Appellant then related the rape and homicide in detail, in a narrative lasting fifteen or twenty minutes.
It is uncontroverted that there was no violence or even abuse directed toward appellant before this confession. The [1205]*1205most that is even adverted to in appellant’s testimony is a statement that he was tapped a couple of times, patted on the shoulder, in a non-violent way.2 Both District Judges described the conduct of the policemen involved as “exemplary.” Prior to the statement appellant was told if he wished he could go down to get a drink from the soft-drink machine the group had seen in the station house. Appellant’s only claim to medication was that he mentioned he had a headache, and was given two aspirin tablets.3 Appellant was not told of a right to a lawyer, and he did not ask for one. There is a suggestion that appellant sought to phone his mother, but according to testimony credited by the hearing judges, appellant rather seemed concerned about whether his mother had to know what he had done.
After the oral confession, appellant was asked to make a written statement. This he declined to do, although he signed a statement indicating that he refused to make a written confession, but conceding that everything he said orally was true. (This writing was not introduced in evidence, since appellant’s motion to suppress his confessions, although denied as to the oral confessions, was granted as to this written statement on the ground appellant should have been arraigned promptly after his first oral confession.) At that point the questioning was discontinued and at the request of the District officers the Maryland police arrested appellant as a fugitive from justice, pending extradition proceedings.
Later that evening the Metropolitan police secured a search warrant from a judge of the District of Columbia Court of General Sessions authorizing the seizure of the clothes appellant told the officers he wore during the commission of the crime. The application was for the search for and seizure of “dark brown trousers, red shirt, pair of men’s shorts, and reddish brown patent leather shoes,” set forth in the application and warrant as “instrumentalities of a crime, i. e., 1st degree murder.” The warrant specifically authorized a search of the first floor of appellant’s home. As a result of this search the police secured objects for scientific analysis which culminated in expert testimony at trial revealing the presence of blood on appellant’s trousers, some of which was of the victim’s type, and detecting fibers recovered from the surface of the victim’s clothing that matched in color and texture threads from appellant’s trousers and red shirt.
The following day, August 18, the Metropolitan police obtained an arrest warrant for appellant, and at about 1:30 that afternoon he was taken before a Montgomery County, Maryland, magistrate for extradition. There he was advised of the charges pending against him in the District of Columbia and of his right to an extradition hearing. The judge informed him of his right to remain silent, but apparently the only reference to counsel meant that counsel could be obtained for purposes of an extradition proceeding. Appellant pro se waived extradition.
As appellant was being escorted from the Rockville Courthouse in the custody of a Metropolitan police detective, appellant’s mother appeared, identified herself to the detective, and asked whether she might talk with her son. The detective explained that she might but that he would have to be present, and advised appellant that anything he might say to his mother might be used against him. Appellant said he wanted to talk to his mother. A room was designated in the courthouse for appellant to talk to his mother and there appellant admitted to his mother that he had killed a woman with his hands.
Again, these are the facts as testified to by the police and found by the District [1206]*1206Judges. Appellant denied that he had been advised of his right to remain silent and testified that he asked the officer whether he would have to tell his mother what happened, whereupon the officer said he might as well because she would find out eventually anyway.
Appellant was then returned to the District of Columbia, and at about 4:35 that afternoon received a preliminary hearing before a judge of the Court of General Sessions who fully advised him concerning his privilege against self-incrimination and his right to have counsel appointed to represent him.
As a result of the determinations at the pre-trial suppression hearing and the trial hearing, the first oral confession, the admission to his mother, and the articles of clothing seized under warrant, were admitted in evidence at the trial. Appellant claims each of these rulings was reversible error.
II Appellant’s Confession to the Detectives.
We consider first the admissibility of appellant’s oral confession at the Montgomery County police station. Three inter-related strands of law must be taken into account in considering the admissibility of this confession. Stated summai'ily at this introductory juncture, the doctrines hold that a defendant’s confession is inadmissible—
(1) If it was elicited by the police at a time when the accused should have already been brought, pursuant to Rule 5(a), Fed.R.Crim.P., before a magistrate who would have advised him of his right to remain silent and made arrangements for consultation with counsel; or
(2) If it was elicited by the police when accused was without counsel, at a time and under circumstances which required either the assistance of counsel or its intentional waiver; or
(3) If the prosecution fails to establish that the confession was voluntary, and was not the product of either physical or psychological coercion that displaces the free will of the accused.
The presentation and effectuation of the constitutional privilege against self-incrimination is a common concern of all of these doctrines, although their contours are neither defined by nor limited to the protection of that privilege.
A. Mallory Doctrine
The primary contention of defense trial counsel, raised both at the pre-trial hearing on the motion to suppress and at trial, is that the confession was inadmissible under the rule of Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and its progeny, which establish that an admission cannot be used in evidence if taken at a time when the police were in violation of Rule 5(a), Fed.R.Crim.P., which requires that an officer making an arrest shall take the arrested person “without unnecessary delay” before an official empowered to commit persons charged with crime. We assume arguendo that the principles of Rule 5(a) are applicable even though the arrest was outside the District.4
Rule 5(a), and the line of Mallory-type cases, are directed at forbidding post-arrest confinement and interrogation without the prompt determination by an objective magistrate that there is probable cause to detain the suspect. However, we see no basis for disturbing the finding of the judge who heard the pretrial motion that appellant was not under arrest when he began to make his statement. We preface consideration of the question whether appellant was under arrest at the time of his statement by some general observations. If appellant’s presence and participation in the questioning was voluntary, and at a time when no arrest had [1207]*1207occurred, the Mallory rule is inapplicable.5 Detention of a witness for the purpose of asking questions is not necessarily an arrest, at least if the detention is brief enough.6 Even a mere stopping, however, may constitute an arrest if the officer’s purpose is to assert custody over the individual in connection with a crime, a purpose he may be more likely to set forth in order to justify a simultaneous search.7 Where an officer intends to establish custody over the person involved, a minimal control may trigger his obligation to comply with Rule 5(a). Even where the officer denies that he intended to make an arrest his actions may sufficiently manifest an arrest to require compliance with Rule 5 (a).8 Where the officer goes to the point of asking the person to accompany him to a police station or similar place, that fact alone may be sufficient to invoke the protection of Rule 5(a) unless it is reasonably clear that it is a request and not a compulsory obligation that is involved.9
In the case before us the following facts were testified to by the police officers and their testimony was accepted by both district judges:
When the detectives drove up to appellant’s place of employment the only item linking appellant to the crime was an address book bearing his name and found near the scene of the crime. Although the address book made appellant a suspect it did not establish probable cause to arrest him — a view shared by the District Court and this court. The officers did not intend to arrest appellant unless and until further information established probable cause. It was possible that he might himself be able to explain his loss of the book or prove to be a source of information as to others. When they identified themselves —they were in plain clothes — they gave appellant the option of whether to talk to them at all about their investigation. Appellant said he was willing to talk to them, and they asked whether he wanted to talk at his place of employment or at the station house in Silver Spring. Appellant said he would rather not talk at his place of employment. This item of testimony, which must obviously be subjected to close scrutiny, is given credence by the fact that many of appellant’s co-employees were in attendance at that hour, which was quitting time, and that it was noisy in the garage where the trash trucks were returning. The detectives testified they saw no quiet place nearby for conversation.
At the Maryland police station they were shown upstairs to an unused room, containing a table and some leather chairs, where they sat down and began their conference. Prior to his making the statement that he grabbed the woman, appellant was told he was free to get a soft drink at the vending machines they passed on the way to this room.
Appellant testified that he believed he was under arrest from the time he got into the car with the officers. Appellant’s testimony admittedly fell short of an outright declaration of arrest,10 but [1208]*1208we may assume for present purposes that his testimony if believed would support his Mallory claim.11 However the motions judge, denying the motion to suppress, made it clear that he did not believe the appellant’s version of the events and did believe the account of the officers.12 He concluded that the detectives did not have probable cause to arrest appellant, that the officers fully understood that, and that appellant had no reason to think he was under arrest at that time.
It is conceded that appellant was never told he was under arrest until after, and this is important, a relatively brief questioning of approximately 15 minutes. The detectives testified that their purpose was to find out how appellant’s notebook got to the scene of the crime (whether he had given it to anyone else, etc.). Appellant was asked to account for his actions over the weekend. He inquired why he was being asked about this, and was told the police were investigating the rape-homicide committed over the weekend. At first appellant denied any knowledge of the matter. During the interview he was asked to identify the red address book. He was further asked if he could account for its presence at the scene of the crime, whether he had any enemies, etc. He said he had lost it. But shortly after he was shown the address book, appellant asked what would happen if he told what he knew, how much time he could get, would he have to be locked up over night. He was told if he had anything to do with the matter, he would be arrested and it would be up to the courts to decide what to do with him.
“Shortly thereafter he said that he would tell us, that he had grabbed a woman on the street.” Rule 5(a) did not require that the detectives break off the interview and try to arraign appellant rather than allow him to make an immediate elaboration of the mere assertion of guilt.13 The detectives told him he was under arrest. They warned him again that anything he said could be used against him, and at that time he proceeded to relate in detail, step by step, what had happened. He related in effect that he was in a state of excitement when he left his unrequiting girl friend that fateful night, that he saw and seized the victim, hit her when she screamed, and had sexual relations.
Mallory’s command that an accused be taken before a magistrate “as quickly as possible” has not been inter[1209]*1209preted to render inadmissible every statement made by an accused to the police subsequent to his arrest. The time lapse between arrest and - statement, here but a matter of moments, is, while important, admittedly not controlling. Instead our cases have shown an overriding concern lest a person who is arrested and taken into custody by the police, purportedly for purpose of prompt arraignment, be subjected instead to a detour, physical or temporal, taken for the purpose of eliciting a confession. Where an accused is arrested on the street, the officers may not interrupt their journey to the police station to begin interrogating him at the side of the road.14 Nor may they begin such questioning as an interjection into the process of booking.15 Recently this court has held that an officer who arrests a suspect on his assumption of probable cause for arrest is under a duty to take him to the magistrate and may not instead taken him to another officer whose purpose is to question the suspect in order to obtain evidence of guilt, Naples v. United States, 127 U.S.App.D.C. 249, 382 F.2d 465 (July 25, 1967).
Here, however, appellant was not arrested, nor was there probable cause to arrest him, until his statement at the police station that he had grabbed the woman. He was being questioned and asked to explain away items casting suspicion when he uttered the words that involved him with the deceased and led to his arrest. His clarification and elaboration concerning that involvement was part of a continuous narrative. The continuity of the statement would have been more obvious but no more real had the police officers permitted the interview to continue without any announcement. It would be unreasonable to declare that the continuation of the confession has been impaired merely because the officers took steps that were if anything helpful to the suspect by making an announcement of arrest and by renewing the warning that any statement could be used against him, a warning that accords with the objectives of our jurisprudence.
The announcement and warning were neither intended nor reasonably understood as terminating the interview in fact, and we do not think they had that effect as a matter of law. This is not a case of an interruption or detour either to initiate or rearrange a questioning, as by bringing in a new questioner, or changing the scene. We do not say that the police could continue a prolonged probe after having grounds to arrest a man in the station house. But under circumstances where the questioning was not being initiated or rearranged but was rather being continued, and continued for a relatively brief extent that clarified and filled out a conclusory statement of involvement, we do not consider that the announcement and protective warning had the effect of terminating the interview.
We have given consideration to the possibility of ruling that with the significant change in status that took place with the arrest — depriving the suspect of freedom to leave the scene — the police lost all lawful right to ask further questions. There would be reason for such a blanket rule as providing the only certain assurance against questioning that is really intended only to elicit proof of guilt for trial purposes. But the protective rules of our jurisprudence have been fashioned so as to provide a maximum of protection without insisting on an absolute rigidity that interferes with fair needs of society in police administration. The fact that a defendant says something incriminating enough to require detention is not a warrant for sealing him off hermetically. There is the possibility of confusion and misunderstanding. Even in the case at bar the appellant’s statement, though manifestly enough to warrant and indeed require compulsory detention, was blurred to some extent, as to just what it was appellant said he had done. There are [1210]*1210possibilities of prevarication, as well as confusion, that may warrant some continuation of the questioning. We think the balance of risks and protection is best achieved by putting a burden on the police who seek to justify questioning in the absence of protections, as the Court did in Miranda in permitting the police to show waiver of right to counsel. The general burden of showing that there was no unnecessary delay is reinforced by a specific burden of showing that the continuation of the pre-arrest questioning, without a break, was not merely to gather proof for the trial, but sought an elaboration for sake of clarity and certainty in relatively brief compass.
We would feel differently if we shared the premise of our dissenting colleague, that the officers took Fuller to the station house against his will with a view to obtaining a confession. But two judges, both with the opportunity to assess credibility, have found that this was not the case. Without comparable access to the witnesses, we do not feel justified in overturning their determination. The approval of the two judges is fairly indicated by the comment of the hearing judge that the questioning by the officers was “very fine police work.” They did not specifically focus on that part of the questioning that followed the warning. The questioning was treated by both counsel and judges as essentially unified in time and purpose, terminated only when the officers came to prepare a written statement. Defense trial counsel argued that from its outset the questioning was in violation of Mallory. We do not require a remand for, in addition to the approval of the district judges already noted, our own consideration of the nature and significantly brief extent of the on-going questioning following the warning makes plain to us that it did not interject a taint condemning the conduct of the police officers as a disregard of Rule 5 and Mallory.
The significance of the Mallory rule has unquestionably been reduced as to trials since June 1966, which are governed by the requirement of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), guaranteeing the assistance of counsel to suspects questioned while in police custody. But insofar as we are now focusing on the rule excluding admissions from arrested persons who should previously have been brought before a magistrate and judicially advised of their rights, we see no basis for upsetting the determination of the District Court!
B. Lack of Counsel
Every confession is obviously a critical confrontation between the accused and the state, where counsel could render valuable assistance. Miranda v. State of Arizona, 384 U.S. 436, 467-479, 86 S.Ct. 1602 (1966). The underlying doctrine was recently reiterated and extended to other confrontations in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). But this constitutional right to counsel was given only a prospective requirement. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Appellant was tried in 1965, and this court does not apply Miranda retroactively, see La Shine v. United States, 126 U.S.App.D.C. 71, 72 n. 1, 374 F.2d 285, 286 n. 1 (1967).
We turn to the question whether the confession was inadmissible in the light of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
Massiah, we think, has no bearing on the first confession. There the Court condemned the eliciting of statements, in clandestine fashion, from a man under indictment, without the presence of the lawyer he had already obtained.
Nor is the confession inadmissible under Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758 (1964). As elaborated in Johnson, 384 U.S. at 733 734, 86 S.Ct. 1772, the Escobedo decision rests on a group of factors (378 U.S. at [1211]*1211490-491, 84 S.Ct. 1758), amounting overall to a denial of counsel vitiating a confession: (1) the investigation has focused on a particular aspect; (2) he has been taken in police custody; (3) a process of interrogation lending itself to eliciting incriminating statements has been undertaken; (4) the suspect has requested and been denied the opportunity to consult with a lawyer; and (5) the police have not effectively warned him of his right to remain silent. Whether or to what extent the first three elements were present in appellant’s case are questions that need not be resolved, for it is plain that under the facts as reliably found by the District Court neither of the last two objectionable elements infects this case.16
The fact that we have not extended Escobedo to the contours of Miranda for prospective application, and have not applied Miranda retrospectively, does not mean that we are indifferent to the need to strike a proper balance between the state and the criminal defendant. The Supreme Court’s decisions on prospective and retrospective application are, indeed, a part of the balance struck. In addition, as will shortly appear, the Supreme Court keeps in mind, and so do we, that vigilance must be exercised to assure that the conduct of the agents of the State was sufficiently fair to retain convictions based on confessions at trials held prior to Miranda. The prosecution is required to make a showing that the confession was voluntary, and we now turn to the problem of voluntariness. With voluntariness established, we see no more reason for retroactively imposing a requirement of counsel in this case than in any other case involving confessions.
C. Voluntariness
During the pre-trial hearing appellant’s counsel stated that his motion to suppress the confession was based solely , on an alleged violation of Mallory, and expressly disavowed any contention of lack of voluntariness. However, at the second hearing, during the trial, while the principal focus was again on Mallory problems, there was some incidental probing as to whether the investigating officers pressured appellant into making a confession. Because of the profound significance of the values protected by the rule excluding involuntary confessions, we have undertaken an independent canvass of the record to ascertain whether the prosecution established that this was a voluntary confession. In this regard we have been sensitive to the principle that even where Miranda is not accorded retroactive application, whether or not its four-fold prospective requirements were in fact met has a key bearing on the resolution of the abiding issue of whether a confession was voluntary. In 1966, shortly after Johnson decided that Miranda did not automatically control cases tried before its announcement, the Supreme Court cautioned, see Davis v. State of North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966):
The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo and Miranda is not limited in any manner by these decisions. On the contrary, the fact that a defendant was not advised of his right to remain silent or of his right respecting counsel at the outset of interrogation, as is now required by Miranda, is a significant factor in considering the voluntariness of statements later made.
Even though the requirements of Miranda are not “directly applicable” to a prior trial, they are “relevant on the issue of voluntariness.” 17 We have made a careful appraisal of appellant’s confession in light of these principles, but we are convinced that the prosecution established that his statements were “voluntary”.
[1212]*1212We share the evident conclusions of both District Judges that even though appellant was not apprised at the beginning of the investigation that he was entitled to counsel, he was told he was not obliged to make any statement. Further, we find not the slightest basis for supposing that physical pressure was exerted. As to the possibility of psychological inducements made to overbear appellant’s will, we are clear that no artifice was employed, no promises made. Appellant graduated from elementary school and dropped out in his second year of high school. He was questioned only for a matter of minutes before he acknowledged his guilt. The room provided by the Montgomery County authorities for the questioning was merely an unused office, furnished with leather chairs and a table, adjacent to the detective’s squad room.
The question is whether the prosecution has established that appellant’s will had not been overborne by the police officers. Although the extent of the burden on the prosecution was not articulated by the trial judge, and differences have been expressed in judicial opinions as to the appropriate standard,18 this subject presents no problem in this case for his statements on the face of the record make it plain that the trial judge perceived no genuine possibility that the confession was not voluntary, and we see no basis for upsetting his conclusion.
Ill Appellant’s Subsequent Admission to His Mother in the Presence of a Detective.
We think the District Court was correct in denying- the motion to suppress the admission made by appellant to his mother.
At the outset we note that we do not consider and are not called upon to consider whether the admission to the mother would have been admissible if the prior confession were inadmissible. That would present the applicability of the doctrine that excludes an admission that is a fruit of the “poisonous tree.” 19
Considering by itself the admission made by appellant to his mother, we begin by pointing out that there is not the slightest suggestion that the police lured .her there to evoke a further admission from appellant. The uncontested fact is that she went to Maryland on her own initiative. After extradition proceedings had been completed in Rockville, she asked the escorting officer whether she could speak with her son. The officer responded that he would have no objection, so long as they both realized that he would have to remain present. The officer testified that about five minutes earlier, when appellant was turned over to him for return to the District, he warned appellant of his rights. There was no request for privacy, either by appellant when he expressed the desire to see his mother, or by the mother when she came over. When the officer specifically indicated to appellant that he would have to remain present, appellant replied that would be all right. This same caveat was repeated when appellant’s mother actually came over to them, and the officer’s presence was not challenged or objected to. With the officer in attendance, appellant’s mother asked him what he had done, and appellant repeated his prior admission that he had killed a woman and dropped his address book near the scene.
We do not find this officer’s conduct shocking or unwarranted. Appellant was an accused murderer being returned to the District after waiving extradition. Appellant and his mother had a human right to talk to each other, which the officer granted, but appellant had no legal right to see his mother alone [1213]*1213at this time,20 nor did either of them ask for a private place to talk. At the pre-trial hearing, when defense counsel sought to elicit from this officer that appellant was then certainly under arrest when he made the admission, was “in custody”, and yet the officer insisted on listening to his conversation with his mother, the officer replied with the reasonable explanation: “That is why I stood by — because he was in my custody.” This was not a surreptitious eavesdropping like that in Massiah. Both mother and son were aware of the presence of the officer. Appellant had been advised of his right to remain silent and of the fact that anything he might say could be used against him.
This court appreciates that “expanded ' concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused’s will has been overborne.” Jackson v. Denno, 378 U.S. 368, 390, 84 S.Ct. 1774, 1788, 12 L.Ed.2d 908 (1964). But we do not think the circumstances of the second admission were “unfair” so that it should be purged as being not truly voluntary.
Of course garnering a confession by artifice is no more permissible than achieving the same result by some cruder coercion. Spano v. People of State of New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716,, 98 L.Ed. 948 (1954). Here there were no stratagems that reflected unfairness or vitiation of appellant’s free will. The second admission was properly received in evidence.
IV. The Seizure of Appellant’s Clothing under Warrant.
Until appellant reached this court all of his efforts to suppress the bloody and incriminating garments seized under warrant» were couched in terms of “fruit of the poisonous tree.” The argument presented to the district judges at the two hearings was predicated on the contention that appellant’s first confession at the Maryland police station was tainted, and that the inadmissibility of that confession rendered the clothing likewise inadmissible, since the supporting affidavit undeniably revealed that the officer was relying on the details of this statement as the basis for the averment that he was “positive” that the described apparel was to be found in appellant’s home. But we have already agreed with both judges that the confession was not illegally obtained or suppressable.
On appeal, counsel also argued that under cases like Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 65 L.Ed. 647 (1921), the principle became established that the Fourth Amendment barred the seizure of “mere evidence” of a crime and tolerated only the seizure of contraband and the fruits or instrumentalities of a crime. The vitality of that rule was drawn in question by Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and we called upon the parties for additional memoranda. While we were considering these, the Supreme Court granted review of Hayden v. Warden, 363 F.2d 647 (4th Cir. 1966), which promised to shine authoritative light on this troublesome question. We have held the case for that guidance.
On May 29, 1967, the Supreme Court released its opinion explicitly repudiating as out of step with sound notions of the policy of the Fourth Amendment, and its interrelation with the Fifth, any distinction based purely on superior proprietary interest in the objects of a search and seizure. Warden, Md. Penitentiary [1214]*1214v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). We regard Hayden as conclusive basis for rejecting appellant’s argument that his constitutional rights were violated in August 1965 when officers procured a warrant to seize the blood-stained clothing that helped identify his connection with the murder.
We also asked the parties to provide memoranda on the question of the compatibility of this warrant with the requirements of Rule 41(b), Fed.R.Crim. P.21 That Rule specifies that a warrant “may be issued under this rule to search for and seize any property (1) Stolen or embezzled in violation of the laws of the United States; or (2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; or (3) Possessed, controlled, or designed or intended for use or which is or has been used in violation of” an irrelevant provision of the United States Code.
In stating what the printed affidavit specified were to be the “alleged grounds for search and seizure” the affiant officer inserted that the clothes were “instrumentalities” of the crime of first degree murder. There is no basis for disputing the bona fides of the application; it accords in substance with the approach used in United States v. Guido, 251 F.2d 1, 3-4, cert. denied, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed.2d 843 (1958), where the Seventh Circuit justified the seizure of a bank robber’s shoes as “instrumentalities” of the crime and noted that they were used to “get away” from the scene of the crime. The Supreme Court in Hayden indicated its awareness that “pressure against the [mere evidence] rule in the federal courts has taken the form * * * of broadening the categories of evidence subject to seizure, thereby creating considerable confusion in the law.” 387 U.S. at 309, 87 S.Ct. at 1651.
We do not decide now whether the clothing worn by a suspect at the scene of a crime may be part of the “means” ■of the crime within Rule 41(b) (2). Such a conclusion could be justified under a broad interpretation that considered the criminal’s clothing at the scene of the crime to be the means of a crime, e. g. in cases where the clothing helped conceal identity, such as a hat pulled down, a coat pulled up, or both, or possibly a ski mask or stocking over the face, and also in cases where the clothing by being appropriate to the time and place avoids calling attention to the presence of the criminal.
We prefer to rest our decision on the ground that no objection was made in the trial court that Rule 41(b) (2) does not authorize a warrant for clothing worn at the scene of the crime. We do not consider this the type of deficiency that we should regard as plain error “affecting substantial rights” within Rule 52(a). No violation of a constitutional right is involved. And although the issue could be framed in terms of reliance on a statutory “right,” the Supreme Court indicated in Hayden that the particular lan-. guage “is attributable more to chance than considered judgment.” 387 U.S. at 308, 87 S.Ct. at 1650, Rule 41, the Court pointed out, merely incorporated the categories then deemed within the ambit of constitutional seizures.22
In view of the ruling in Hayden, sustaining a warrantless search for and seizure of the clothing of the accused, it would be anomalous for this court to [1215]*1215suppress a search for particular clothing made only after application to a magistrate for permission. Justice Brennan’s opinion for the Court in Hayden points out that the values protected by the Fourth Amendment are the right of privacy and the freedom from intrusion under indiscriminate general authority. “Protection of these interests was assured by prohibiting all ‘unreasonable’ searches and seizures, and by requiring the use of warrants, which particularly describe ‘the place to be searched, and the persons or things to be seized’, thereby interposing ‘a magistrate between the citizen and the police.’ ” 387 U.S. at 301, 87 S.Ct. at 1647.
Assuming that a trial court must honor an objection to the seizure of clothing that is timely grounded on the wording of Rule 41(b) (2), this would permit the prosecution to conduct the trial with other admissible evidence. Permitting the objection to be raised on appeal would undo the trial. This would hardly be countenanced if an appellant raised for the first time on appeal the contention that evidence offered by the prosecution was not in accordance with, say, the book-entry statute.23 This clothing evidence is reliable in nature, the kind of evidence permitting scientific analysis which the courts seek to encourage the police to use, in contrast with confessions of the accused. No fundamental right of.privacy was invaded. This point is not “plain error affecting substantial rights” so much as a belated reliance on a statutory classification that at time of passage extended to all items that then appeared to be within the presumable legislative reach. While we do not say that the objection is a mere technicality that can be blandly ignored by a trial court, we do not think the interest of justice requires that it be entertained for the first time on appeal.
V
As to the rape conviction, we find no other grounds that merit discussion and conclude that the judgment on this count must be affirmed.
As to the judgment entered on the first degree murder verdict, however, the court is, sua sponte, ordering rehearing en banc of the issue presented by the contention that the trial court committed reversible error in failing to instruct the jury that it could not convict both on count one, charging first degree felony-murder, and on count two, charging second degree murder (as reduced by the trial court from a charge of first degree premeditated murder).24
Entry of the order affirming the conviction of rape will be stayed pending determination of this question.
So ordered.