With pet custody, many judges avoid making orders, viewing this issue as just one more thing the parties will fight about. Also, pets have traditionally been classified under the law as nothing more than “property,” which ignores the emotional connection people have with their pets. Some parties have taken advantage of this situation by excluding the other party from have any contact with the pet or, worse, injuring or killing the animal.
As a result, the law will change effective January 1, 2007 to recognize the court’s authority to make orders concerning pet custody in domestic violence cases. We can assist in seeking appropriate orders for the protection of pets and to maintain the relationship each party and the children have with that animal.
Family Code §6320 provides “(a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, credibly impersonating as described in [Pen. Code §528.5], falsely personating as described in [Pen. Code §529], harassing, telephoning, including, but not limited to, making annoying telephone calls as described in [Pen. Code §653m], destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.
The facts in Martinez v. Robledo (2012) 210 Cal.App.4th 384 were that the (1) Family dog was shot by neighbor; the owner of the dog sued for negligence and conversion, seeking $20,790 in veterinarian bills plus punitive damages; (2) During surgery, the veterinarian nicked and cut dog’s intestine, causing internal bleeding, and left surgical gauze inside her body, which was not disclosed by the vet. The vet charged $4,836.16 for the procedure. The dog began vomiting blood, showed pain and developed internal bleeding. Emergency surgery center saved dog’s life, billing P $37,766. First vet refused to pay for the emergency bills. The owner sued for negligence and unfair business practices.
Trial courts ruled the measure of damages would be limited to the market value of the dogs; the parties entered into stipulated judgments for the purpose of appealing the damages issue. Court of Appeal consolidated, reversed. and remanded for further proceedings. Pet owner is not limited to market value, but may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to wrongful injury.
“Given the Legislature’s historical solicitude for the proper care and treatment of animals, and the array of criminal penalties for the mistreatment of animals, as well as the reality that animals are living creatures, the usual standard of recovery for damaged personal property—market value—is inadequate when applied to injured pets. [¶] We agree with the Kimes court that allowing an injured pet’s owner to recover the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury is a rational and appropriate measure of damages. Such evidence is admissible under [Civil Code §3333] as proof of a plaintiff’s compensable damages. And a defendant may present evidence showing the costs were unreasonable under the circumstances.” (Id. at p. 392.)Pet owner is not limited to market value, but may recover the reasonable and necessary costs incurred for the treatment and care of the pet attributable to wrongful injury.


§ 53-3 Permit required; fees.
§ 53-5 Sight distance waiver.
§ 53-6 Submission of plans; applicability of state standards.
§ 53-7 Issuance of certificate of occupancy; bond.
§ 53-9 Waiver of requirements and appeals.
§ 53-10 Water on Township roads.
§ 53-12 Violations and penalties.
§ 53-13 Paving and improvement waiver.
Streets, sidewalks and building numbers — See Ch. 88.
This chapter shall be known and may be cited as the "Driveway Ordinance of the Township of Liberty."
The purpose of this chapter is to set standards for the design, location and construction of driveways and driveway openings in order to promote the safety, public well-being, convenience and general welfare of the Township through, among other things, the lessening of soil erosion, ensuring emergency vehicle access, promotion of traffic safety and preservation of Township roads and road structures.
It is also the intent of this chapter to exercise exclusive jurisdiction by the Township of Liberty over all driveways into Township streets and to exercise concurrent jurisdiction with the County of Warren and State of New Jersey Department of Transportation when any such portion of a driveway is located within the jurisdiction limits of a county or state highway. Therefore, all references contained herein to "Township road," "road," "street" or "public road" shall be construed to mean Township, county or state street or highway.
An application for a driveway permit shall include a plan of the proposed driveway in accordance with § 53-6, prepared by a licensed engineer in the State of New Jersey. The applicant shall also deposit with the municipality a fee in the amount of $500 to cover the estimated cost of the professional review of the application by the Municipal Engineer and other professionals and a fee in the amount of $50 to cover the administration costs of the Township. Where the review and inspection costs exceed the initial escrow deposit, the applicant shall pay the additional amount prior to the final release of the driveway permit and issuance of a certificate of approval (CA).
Permit applications shall be reviewed and permits issued by the Township Engineer.
The Building Subcode Official shall not issue a building permit until the official has been notified by the Township Engineer that a driveway permit for the subject building has been issued.
Major and minor subdivisions shall not be exempt from permit requirements; nor exempt where the driveway construction is by the owner, developer, or his successor.
The paving of an existing driveway is exempt from this chapter. However, if physical modifications or alterations are made to an existing driveway, which would create a negative effect on adjoining properties or on public rights-of-way within the municipality, a driveway permit may be required if deemed necessary by the Township Engineer.
All driveways shall be constructed and maintained in such a manner as to prevent erosion of the soil from them and its deposition upon the street or road and in gutters, catch basins, inlets, drains or culverts.
All driveways constructed or altered shall be constructed in such a manner as not to interfere with the drainage along the existing pavement or traveled way, nor shall runoff from a driveway discharge onto the traveled way. Where curbs are installed, water may not discharge more than two feet beyond the curb. Under no circumstances shall the driveway be allowed to extend beyond the edge of the existing pavement and traveled way thereby creating a hump or uneven driving surface on the pavement or traveled way.
All driveways shall meet the abutting roadway at a horizontal angle of 90°.
For the purposes of this subsection, sight distance should be considered to be "stopping sight distance" per AASHTO (American Association of State Highway and Transportation Officials) recommendations.
Roads which are not posted for speed limits shall be considered to be 50 mph (State of New Jersey driving laws should be considered to be the bottom line), unless in the opinion of the Township Engineer, the applicant's Engineer can demonstrate in writing that the horizontal geometric considerations, location, acceptable design criteria and driver expectancy considerations dictate otherwise.
Driveway entrances onto county and state roads shall comply with county and state sight distance requirements.
Design criteria shall be based on AASHTO (American Association of State Highway and Transportation Officials) recommendations with regard to driver expectancy and perception, roadway alignment, vertical grade of approach to intersection, driver reaction time and driver braking time.
d = 1.47(V)(t) + 1.075(V2/a) = stopping sight distance for level wet pavement.
d = 1.47(V)(t) + V2/[30([a/32.2] +/- G)] = stopping sight distance for variable road grades with wet pavement.
Braking deceleration rate, 11.2 ft/s2.
Braking reaction time, 2.5 seconds.
Road grade measured in feet/feet.
The sight distance measurement shall be from a sight point 3.5 feet above the ground on the center line of the driveway and from eight to 15 feet behind the curbline or edge of pavement) of the major road. The sight distance should be to an object in the road measuring 3.5 feet in height and with a minimum of 0.5 feet of grade clearance to view the object.
Clear sight triangles shall be established connecting the sight points described above and shall be maintained in order to provide clear vision between sight points.
All applicants shall take the required action to obtain the required sight distance, immediately after receipt of initial driveway permit approval and during the commencement of the driveway construction.
Issuance of a temporary or a permanent certificate of occupancy shall be subject to compliance with the provisions of this section and approval of the driveway construction.
Driveways at corner lots shall be located at least 50 feet from the edge of the pavement of the intersecting roadway.
The slope of the driveway shall not exceed 6% either upwards or downwards for a distance of at least 20 feet from the curb or gutter line. The Township Engineer may require additional precautions when the proposed vertical grade of the driveway is between 10% and 15% in the first 100 feet from the point 20 feet or more from the curb line or gutter line. Changes in vertical grades shall intersect with smooth vertical curves not less than 12 feet in length.
The driveway shall be paved with a minimum of two inches compacted thickness of bituminous concrete, type FABC — 1, over a minimum of four inches compacted thickness of soil aggregate, type 5A or 2B (or dense graded aggregate), Masonry pavers or concrete may be substituted for the bituminous concrete, outside of the public road right-of-way and on an acceptable base material. The Township Engineer shall approve the substituted construction materials.
Where the driveway crosses a ditch or swale, the Township Engineer may require either maintaining the existing swale or installing a suitably sized pipe or a combination of the two methods.
Driveway length is measured along the center line of the driveway from the dwelling to the road surface edge.
All driveways shall be paved for 25 feet from the existing edge of pavement, with a minimum of two inches compacted thickness of bituminous concrete, type FABC – 1, over a minimum of four inches compacted thickness of soil aggregate, type 5A or 2B (or dense graded aggregate). Masonry pavers or concrete may be substituted for the bituminous concrete, outside of the public road right-of-way and on an acceptable base material. The Township Engineer shall approve the substituted construction materials.
Consideration shall be given to the effect of increased runoff on downstream properties. The Township Engineer may require that measures be taken to limit runoff rates from the proposed driveway to values prevailing before development.
Driveways less than 200 feet in length shall have the minimum pavement width of 10 feet.
Driveways of 200 feet or more in length shall be cleared and graded to a minimum width of 14 feet and shall have a cartway at a minimum width of 10 feet (paved if required). Horizontal curves shall be aligned to have a minimum center line radius, which will accommodate emergency vehicles (i.e., fire truck and rescue squad). The minimum design standard to be utilized for turning movements is the American Association of State Highway and Transportation Officials SU design vehicle.
A maximum of three single-family dwellings may be served by a common driveway, subject to the approval of the municipal agency having jurisdiction over the subdivision application, which proposes to create the lots that will share the driveway.
Any portion of a driveway utilized by more than two dwellings shall have a minimum paved cartway width of 16 feet and be graded to a minimum width of 20 feet.
Common driveways shall have deeded provisions for maintenance, parking, and snow removal; however, the Township shall not be responsible for enforcement of this provision.
All common driveways shall be paved in accordance with § 53-4I of this chapter, for a minimum of 100 feet from the intersection of the major road, into the property being served.
Driveways of 250 feet or more in length shall have facilities suitable for emergency vehicle (i.e., fire truck and rescue squad) turnaround and for the passing of larger vehicles consisting of the following: A turn-off area at a minimum width of 12 feet and length of 30 feet shall be provided along the driveway not less than 75 feet from the dwelling. The turn-off area shall be paved with soil aggregate type 5A or 2B at a minimum compacted thickness of four inches.
Multifamily, commercial and industrial driveway widths shall be designed to accommodate commercial vehicles and higher traffic volumes but in no case shall exceed a maximum width of 35 feet.
Driveway allotment and adjacent driveway openings.
The maximum number of driveway openings permitted from a residential lot to any one public road (the term "public road" is any road set forth in N.J.S.A. 40:55D-35 and said driveway point of access must front on such a public road as so defined) shall be one.
Adjacent driveway openings. A minimum clear distance of 50 feet shall separate any two driveways (on the same premises or on adjoining lots) entering upon a single public road, as measured along the public road right-of-way line.
No new driveway shall be constructed with a vertical grade exceeding 15%.
In cases where the vertical grades exceed 15% for a new driveway, prior to the issuance of a driveway permit, a written confirmation from the Township emergency services including but not limited to the rescue squad, Fire Department and Police Department must be obtained to confirm that safe access can be achieved to the new home site.
In addition, a professional engineer licensed in the State of New Jersey (engineer) must provide a certification that measures have been taken to control stormwater runoff rates (volumes and velocities) from the proposed driveway, as compared to those prevailing values prior to development based on plans and calculations that the engineer has reviewed, revised and/or prepared.
New driveways shall be located a minimum of five feet from property boundaries with the exception of the designated boundary which the driveway crosses to exit the property.
The construction of any driveway or home in the municipality that is part of a major subdivision is subject to the standards promulgated by the New Jersey Soil Conservation Committee and administered by the Warren County Soil Conservation District. The enforcement of this provision shall be the responsibility of the Warren County Soil Conservation District; a permit from whom is required prior to issuance of a building permit by the Township Construction Code Official.
A written description, detailing the reasons a waiver is needed, to be considered only when no complying alternative can be found.
Upon receipt of all the required information, the Engineer will review and inspect the proposal and report all findings to the applicant and Township Committee within 20 days for waiver under § 53-9.
A plat or site plan shall show the driveway for its entire length and the intersecting road for a minimum distance of 100 feet in either direction. The plan shall show the pavement limits, gutter line, drainage structures, utility poles, trees or bushes or other features along the road. The plan shall show the location of the driveway dimensioned in feet from a sideline of the property, five feet minimum and dimensioned in feet from the nearest utility pole and shall show the number of the pole. The plan shall also show the width and construction material of the driveway and shall show necessary drainage improvements and clearing required to achieve the sight distance required in § 53-4D.
A profile of the driveway beginning at the center line of the intersecting public road, showing existing and proposed grades and elevations along the center line of the driveway for its entire length. Elevations shall be referenced to an elevation datum (benchmark) which shall be shown on the plans.
Details as necessary of any drainage structures, gutters, cross sections and construction items shall be provided on the plans.
In the event that the construction of any particular driveway in the municipality is subject to the standards promulgated by the New Jersey Soil Conservation Committee and administered by the Warren County Soil Conservation District, such standards shall apply whenever such standards are more stringent, detailed or comprehensive than the standards contained herein.
The Building Subcode Official shall not issue a certificate of occupancy until he has been notified by the Township Engineer that the driveway has been issued a certificate of approval.
If due to inclement weather conditions it is not feasible in the judgement of the Township Engineer to complete the driveway, the permittee may submit a bond, in the form of a certified check or cash bond, thereby allowing the Township Engineer to release a temporary certificate of approval (TCA), which would allow the Building Subcode Officer to issue a temporary certificate of occupancy (TCO). The guarantee shall be held to insure that the driveway will be completed within one year. The bond amount will be based upon the cost of the remaining improvements as determined by the Township Engineer, but in no case shall be less than $1,000.
Upon submission and approval of the bond by the Township Attorney, the Building Subcode Official may issue a temporary certificate of occupancy. Upon final completion of the driveway and approval by the Township Engineer, a permanent certificate of occupancy will be issued. The Township Treasurer will release the bond when directed in writing by the Engineer and authorized to do so by the Township Committee.
In the event that the driveway is not completed within one year after the temporary certificate of occupancy has been issued, and if the permittee, upon 10 days' notice, does not complete the improvements required by the approved plans under this chapter, the Township may complete the driveway using the funds available from the bond via a private paving and or excavating contractor.
The paving of an existing driveway servicing an existing single-family dwelling for which a certificate of occupancy has been issued prior to the passage of this chapter shall be subject to this chapter, unless waived by the Township Committee under § 53-9 of this chapter.
Waiver of requirements. Strict enforcement of the terms and sections of this chapter may be waived by the Township Committee upon recommendation of the Township Engineer whenever such enforcement would not be in the best interests of the Township or would place undue hardship upon the applicant.
The Liberty Township Planning Board and Liberty Township Board of Adjustment are hereby established, constituted and appointed as driveway appeal boards to hear and decide driveway appeals pursuant to this chapter.
The Liberty Township Planning Board sitting as a driveway appeal board shall have the power to hear and decide appeals by any interested party where it is alleged by the appellant that there is an error in any order, requirement, decision or refusal made by the Municipal Clerk, Zoning Officer or engineer based on or made in the enforcement of this chapter. Such appeal shall be taken within 20 days by filing a notice of appeal with the Municipal Clerk, specifying the grounds of such an appeal. The officer from whom the appeal is taken shall immediately transmit to the Planning Board all the documents constituting the record upon which the action appealed from was taken. An appeal to the Planning Board shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made. Such appeal shall be heard with its usual rules of practice and procedure, where applicable.
Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property, or by reason of exceptional topographic conditions, or by reason of other extraordinary or exceptional situations or conditions of such piece of property, the strict application of any subsection of this chapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property, the Liberty Township Planning Board, upon an application or appeal relating to such property, may grant a variance from such strict application of such subsection of this chapter so as to relieve such difficulties or hardship, provided however, that no variance or other relief may be granted hereunder which would create any substantial public danger or substantial public inconvenience. No variance or other relief may be granted under the terms of this subsection unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of this chapter, nor the standards promulgated by the New Jersey Soil Conservation Committee and administered by the Warren County Soil Conservation District nor the intent or purposes of the land use procedures (Chapter 72) of Liberty Township.
The Liberty Township Board of Adjustment sitting as a driveway appeal board shall be empowered to grant the above described variance or other relief whenever the same is applied for in connection with the review of an application before the Board of Adjustment.
Notice of appeals pursuant to this subsection, if necessary, shall be given by the applicant in the manner prescribed by N.J.S.A. 40:55D-12 (the Municipal Land Use Law).
The fee for filing a driveway appeal pursuant to this subsection shall be $500. Where review costs exceed, or are anticipated to exceed, the initial escrow deposit, the applicant shall pay the additional amount prior to the final release of the driveway permit.
No person, firm or corporation shall divert, direct, pump or discharge water onto the surface of any Township road or Township right-of-way, wherein said road will cause unsafe traveling conditions and/or cause the road surface to deteriorate and/or cause erosion of same.
The Township Engineer of the Township of Liberty or his/her designee is hereby designated to enforce this chapter.
Any person or persons or firm or corporation violating any provision of this chapter which results in damage to or obstruction of any street or road, gutter, storm drain, catch basin, inlet or culvert shall be responsible for all expenses incurred by the Township in repairing such damage or removing the obstruction, in addition to a fine not to exceed $1,000 or imprisonment for a period not to exceed 90 days, or both. Each and every day that a violation continues after notification thereof shall constitute an additional, separate and specific violation.
The Township Engineer has recommended that the paving and improvement requirements should be modified in the interest of public safety and welfare and has specified, in writing, the revised paving and improvement requirements.
The value of the work to be performed on existing streets under the above revised requirements is approximately equal to that under the Township specifications.
The developer has agreed to the revised paving and improvements on existing streets by the adoption of a resolution by the Township Committee.
The Township agrees to the revised requirements for paving and improvements on existing streets by the adoption of a resolution by the Township Committee.


text:
Appeal from Circuit Court, Harrison County.
Suit by Mary E. Wible against William H. Ashcraft and others. From a judgment for defendants, plaintiff appeals.
Steptoe Johnson, James M. Guiher and Oscar J. Andre, for appellant.
Charles B. Johnson and William G. Johnson, for appellees.
"I have already given to my beneficiaries, except my granddaughter hereinafter named, their respective shares in my estate by deeds dated the 11th day of February, 1928, and now desiring to give to my granddaughter, Mary Wible, such further amounts out of my estate, in addition to the property already deeded to her, as I feel she is entitled to receive in order that she may have an equal share of my estate; I therefore give, devise and bequeath unto my granddaughter, Mary Wible, all the rest and residue of my estate, real personal, and mixed, of whatever kind, character and description, and wheresoever situate, that I may own at the time of my death, after the payment of my just debts and funeral expenses as above provided, to be hers absolutely forever."
Francis Marion Ashcraft died February 10, 1930. Shortly thereafter the plaintiff, Mary E. Wible, moved onto the "home place" and notified defendant, William H. Ashcraft, by letter, that she claimed title thereto by virtue of a deed executed by the testator to her, as grantee, on January 24, 1928, the same having been recorded February 3, 1928. In this deed, which was executed in consideration of $10.00 and "love and affection", a life estate had been reserved to the grantor.
William H. Ashcraft sought to impeach the will, under Code 1931, 41-5-11. However, its validity was upheld by court order of July 2, 1932, based on jury verdict. And, on November 4, 1932, the present suit was instituted by Mary E. Wible for the purpose of having the deed of February 14, 1928, conveying the "home place" to William H. Ashcraft, set aside as a cloud. The defendant's answer, with respect to his claim for affirmative relief, avers in substance, among other things, that if the prayer of the plaintiff's bill should be granted, the will of Francis Marion Ashcraft, now deceased, would be frustrated, and defendant, the son of said testator, disinherited, and prays that plaintiff be estopped from claiming under deed of January 24, 1928, and said will.
The trial court took the position that the will called for an election on the part of plaintiff, and, in view of the fact that the latter was in possession of the personal property disposed by the will, found for the defendant, and decreed cancellation of plaintiff's deed — in other words, elected for her. It is from such decree that the plaintiff appeals.
Plaintiff, at the outset, asserts that defendant is estopped, by reason of his attempt to impeach the will, from laying claim to the "home place" by virtue of the will. But does a proceeding under Code 1931, 41-5-11, jeopardize any rights defendant may have under the will? The statute gives any person in interest, with certain exceptions, the right to make such attack. But once the validity of the will is established, it must, under the law, be administered truly in accordance with its provisions. Otherwise, the testator's wishes would be frustrated. The tenor of our decisions are to this effect. We held in Mathews v. Tyree, 53 W. Va. 298, 44 S.E. 526, that the institution of a suit to construe a will does not necessarily preclude a party entitled to do so from impeaching the validity of the paper. And, in Kerr v. Lunsford, 31 W. Va. 659, 8 S.E. 493, that in a suit seeking to impeach a will, that when a final decree is pronounced in favor of a will on the verdict of a jury rendered on an issue of devisavit vel non, the functions of the suit are exhausted, and the bill should be dismissed; that in such suit the construction of the will cannot be involved.
The primary issue raised by this appeal is whether or not the terms of the will are sufficient to require the plaintiff to elect.
The appellant denies the application of the doctrine of election for the reason that the will does not mention the name of the defendant; does not describe the property; and that the testator did not intend the real estate to pass by will. The appellee, however, takes the position that the reference to the deeds is sufficient to incorporate them into the will, and that although the legal title passed subject to testator's life estate, with the execution of the deeds, what was done thereunder is necessary to a construction of the will with reference to the bequest of the personalty, and that, in so far as the disposition of the personalty was concerned, the several tracts of real estate were disposed by the will.
"An unattested or imperfectly attested paper may be incorporated in a will by reference, if the terms of the will, assisted (if necessary) by the surrounding circumstances, are sufficient to identify the paper, and to show the intention of giving effect to it." Allen v. Maddock, 11 Moore P. C. 427, 14 Reprint 757, 26 Eng. Rul. Cas. 439. The foregoing rule, followed by the English courts, has been frequently cited and followed in this country. Newton v. Seaman's Friend Society, 130 Mass. 91, 39 Am. Rep. 433. In the latter case Chief Justice Gray said: "If a will executed and witnessed as required by statute, incorporates in itself by reference any document or paper not so executed and witnessed, whether the paper be in the form of a will or codicil, or a deed or indenture, or a mere list or memorandum, the paper so referred to, if it was in existence at the time of the execution of the will, and is identified by clear and satisfactory proof as the paper referred to therein, takes effect as part of the will, and should be admitted to probate as such." The same rule was invoked by the Supreme Court of Virginia in the case of Pollock v. Glassell, 2 Gratt. (Va.) 439.
Have the deeds been incorporated into the will in the present case? A reference is made to the transfer to "my beneficiaries" by deeds "dated the 11th day of February, 1928"; the deeds were in existence at the time of the execution of the will; and the intent to incorporate them for purpose of explanation is sufficiently shown by the words "and now desiring to give to my granddaughter, Mary Wible, such further amounts out of my estate, in addition to the property already deeded to her, as I feel she is entitled to receive in order that she may have an equal share of my estate." True, the will does not set out in detail the property conveyed by the deeds, or the names of the several grantees; but this is not necessary where the deeds can be identified with sufficient certainty to warrant their incorporation. The appellant does not deny the existence of the deeds, or that the four in question are the ones referred to in the will.
But the appellant insists that there must be a clear intention on the part of the testator to dispose, by will, of property which does not belong to him; and that this intention must appear from the words of the will itself — not by extrinsic evidence.
It is at this point that the appellant and appellee seem to differ in their applicability of the doctrine of "election". The appellant would confine it to cases in which the testator makes transfer, by will, of property other than his own. She stresses the fact that the legal title, subject to the life estate, passed on the date of the execution of the deeds. But is the doctrine so limited?
"The principle of equitable election arises where an obligation is imposed upon a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both." Swan v. Swan's Exrs., 136 Va. 496, 117 S.E. 858, 864; Rau v. Krepps, 101 W. Va. 344, 133 S.E. 508. Or, as stated in point 1, syllabus, Tolley v. Poteet, 62 W. Va. 231, 57 S.E. 811: "One entitled to any benefit under a will or other instrument must, if he claims that benefit, abandon every right and interest the assertion of which would defeat even partially any of the provisions of that instrument."
While it is true that the legal title to the property passed, subject to the life estate, on February 14, 1928, it must be borne in mind that such transfers were in contemplation of death, and a part of a plan for the disposition of the testator's entire estate, both real and personal. So, when we consider the bequest to the appellant we must take into account the transfer by deed of the "home place" to William H. Ashcraft. The latter's deed can have no standing except under the testator's plan for the disposition of his property. It, however, shows the testator's intention regarding the disposition of the personalty. Such being the case, the appellant is put on election as to whether she will relinquish the "home place", or renounce the specific bequest of the personal property.
But, was the chancellor warranted in setting appellant's deed aside on the theory that there had been an election? It is true that the appellant had taken charge of the personalty under the will. But she did this on the theory that it was an absolute gift under the will. Now that it has been determined that the right to the personalty is contingent upon her election to give up the " home place," she should be accorded an opportunity to act, either to renounce the bequest, or give up the property theretofore conveyed to her by deed. In this particular the chancellor was in error. We, therefore, reverse the decree in this respect, and remand the case for the purpose of according the appellant the right to elect. In all other respects the ruling of the chancellor is affirmed.

matches: v. v. v. v. v. v. v. v.


Respondent McLaughlin brought a class action seeking injunctive and declaratory relief under 42 U.S.C. § 1983, alleging that petitioner County of Riverside (County) violated the holding of Gerstein v. Pugh, 420 U. S. 103, by failing to provide "prompt" judicial determinations of probable cause to persons who, like himself, were arrested without a warrant. The County combines such determinations with arraignment procedures which, under County policy, must be conducted within two days of arrest, excluding weekends and holidays. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because the time for providing him a "prompt" probable cause determination had already passed and he had failed to show, as required by Los Angeles v. Lyons, 461 U. S. 95, that he would again be subject to the allegedly unconstitutional conduct. The District Court never explicitly ruled on the motion to dismiss, but accepted for filing a second amended complaint -- the operative pleading here -- which named respondents James, Simon, and Hyde as additional individual plaintiffs and class representatives, and alleged that each of them had been arrested without a warrant, had not received a prompt probable cause hearing, and was still in custody. The court granted class certification and subsequently issued a preliminary injunction requiring that all persons arrested by the County without a warrant be provided probable cause determinations within 36 hours of arrest, except in exigent circumstances.
The Court of Appeals affirmed, rejecting the County's Lyons-based standing argument and ruling on the merits that the County's practice was not in accord with Gerstein's promptness requirement because no more than 36 hours were needed to complete the administrative steps incident to arrest.
plaintiffs' claims were subsequently rendered moot by their receipt of probable cause hearings or their release from custody, they preserved the merits of the controversy for this Court's review by obtaining class certification. See, e.g., Gerstein, 420 U.S. at 420 U. S. 110-111, n. 11. This Court is not deprived of jurisdiction by the fact that the class was not certified until after the named plaintiffs' claims became moot. Such claims are so inherently transitory, see, e.g., id. at 420 U. S. 110, n. 11, that the "relation back" doctrine is properly invoked to preserve the case's merits for judicial resolution, see, e.g., Swisher v. Brady, 438 U. S. 204, 438 U. S. 213-214, n. 11. Pp. 500 U. S. 50-52.
2. The County's current policy and practice do not comport fully with Gerstein's requirement of a "prompt" probable cause determination. Pp. 500 U. S. 52-59.
(a) Contrary to the Court of Appeals' construction, Gerstein implicitly recognized that the Fourth Amendment does not compel an immediate determination of probable cause upon completion of the administrative steps incident to arrest. In requiring that persons arrested without a warrant "promptly" be brought before a neutral magistrate for such a determination, 420 U.S. at 420 U. S. 114, 420 U. S. 125, Gerstein struck a balance between the rights of individuals and the realities of law enforcement. Id. at 420 U. S. 113. Gerstein makes clear that the Constitution does not impose on individual jurisdictions a rigid procedural framework for making the required determination, but allows them to choose to comply in different ways. Id. at 420 U. S. 123. In contrast, the Court of Appeals' approach permits no flexibility, and is in error. Pp. 500 U. S. 52-55.
(b) In order to satisfy Gerstein's promptness requirement, a jurisdiction that chooses to combine probable cause determinations with other pretrial proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Providing a probable cause determination within that time frame will, as a general matter, immunize such a jurisdiction from systemic challenges. Although a hearing within 48 hours may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably, courts evaluating the reasonableness of a delay must allow a substantial degree of flexibility, taking into account the practical realities of pretrial procedures. Where an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends or the fact that, in a particular case, it may take longer to consolidate pretrial proceedings. Pp. 500 U. S. 55-58.
such as this class action. Its regular practice exceeds the constitutionally permissible 48-hour period because persons arrested on Thursdays may have to wait until the following Monday before receiving a probable cause determination, and the delay is even longer if there is an intervening holiday. Moreover, the lower courts, on remand, must determine whether the County's practice as to arrests that occur early in the week -- whereby arraignments usually take place on the last day possible -- is supported by legitimate reasons or constitutes delay for delay's sake. P. 500 U. S. 58-59.
888 F.2d 1276 (CA 9, 1989), vacated and remanded.
In Gerstein v. Pugh, 420 U. S. 103 (1975), this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. This case requires us to define what is "prompt" under Gerstein.
This is a class action brought under 42 U.S.C. § 1983 challenging the manner in which the County of Riverside, California (County), provides probable cause determinations to persons arrested without a warrant. At issue is the County's policy of combining probable cause determinations with its arraignment procedures. Under County policy, which tracks closely the provisions of Cal.Penal Code Ann. § 825 (West 1985), arraignments must be conducted without unnecessary delay and, in any event, within two days of arrest. This two-day requirement excludes from computation weekends and holidays. Thus, an individual arrested without a warrant late in the week may, in some cases, be held for as long as five days before receiving a probable cause determination. Over the Thanksgiving holiday, a 7-day delay is possible.
warrants for felonies do not receive a probable cause determination until the preliminary hearing, which may not occur until 10 days after arraignment. 2 App. 298-299. Before this Court, however, the County represents that its policy is to provide probable cause determinations at arraignment for all persons arrested without a warrant, regardless of the nature of the charges against them. Ibid. See also Tr. of Oral Arg. 13. We need not resolve the factual inconsistency here. For present purposes, we accept the County's representation.
"'an order and judgment requiring that the defendants and the County of Riverside provide in-custody arrestees, arrested without warrants, prompt probable cause, bail and arraignment hearings.'"
Pet. for Cert. 6. Shortly thereafter, McLaughlin moved for class certification. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because he had failed to show, as required by Los Angeles v. Lyons, 461 U. S. 95 (1983), that he would again be subject to the allegedly unconstitutional conduct -- i.e., a warrantless detention without a probable cause determination.
In light of the pending motion to dismiss, the District Court continued the hearing on the motion to certify the class. Various papers were submitted; then, in July, 1988, the District Court accepted for filing a second amended complaint, which is the operative pleading here. From the record it appears that the District Court never explicitly ruled on defendants' motion to dismiss, but rather took it off the court's calendar in August, 1988.
"all present and future prisoners in the Riverside County Jail, including those pretrial detainees arrested without warrants and held in the Riverside County Jail from August 1, 1987 to the present, and all such future detainees who have been or may be denied prompt probable cause, bail or arraignment hearings."
In March, 1989, plaintiffs asked the District Court to issue a preliminary injunction requiring the County to provide all persons arrested without a warrant a judicial determination of probable cause within 36 hours of arrest. 1 App. 21. The District Court issued the injunction, holding that the County's existing practice violated this Court's decision in Gerstein. Without discussion, the District Court adopted a rule that the County provide probable cause determinations within 36 hours of arrest, except in exigent circumstances. The court "retained jurisdiction indefinitely" to ensure that the County established new procedures that complied with the injunction. 2 App. 333-334.
The United States Court of Appeals for the Ninth Circuit consolidated this case with another challenging an identical preliminary injunction issued against the County of San Bernardino. See McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (1989).
The Court of Appeals rejected Riverside County's Lyons-based standing argument, holding that the named plaintiffs had Article III standing to bring the class action for injunctive relief. 888 F.2d at 1277. It reasoned that, at the time plaintiffs filed their complaint, they were in custody and suffering injury as a result of the defendants' allegedly unconstitutional action. The court then proceeded to the merits and determined that the County's policy of providing probable cause determinations at arraignment within 48 hours was "not in accord with Gerstein's requirement of a determination promptly after arrest,'" because no more than 36 hours were needed "to complete the administrative steps incident to arrest." Id. at 1278.
The Ninth Circuit thus joined the Fourth and Seventh Circuits in interpreting Gerstein as requiring a probable cause determination immediately following completion of the administrative procedures incident to arrest. Llaguno v. Mingey, 763 F.2d 1560, 1567-1568 (CA7 1985) (en banc); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1139-1141 (CA4 1982). By contrast, the Second Circuit understands Gerstein to "stres[s] the need for flexibility" and to permit States to combine probable cause determinations with other pretrial proceedings. Williams v. Ward, 845 F.2d 374, 386 (1988), cert. denied, 488 U. S. 1020 (1989). We granted certiorari to resolve this conflict among the Circuits as to what constitutes a "prompt" probable cause determination under Gerstein.
would no longer be "prompt." Thus, at least as to the named plaintiffs, there is no standing, because it is too late for them to receive a prompt hearing and, under Lyons, they cannot show that they are likely to be subjected again to the unconstitutional conduct.
We reject the County's argument. At the core of the standing doctrine is the requirement that a plaintiff "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U. S. 737, 468 U. S. 751 (1984), citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U. S. 464, 454 U. S. 472 (1982). The County does not dispute that, at the time the second amended complaint was filed, plaintiffs James, Simon, and Hyde had been arrested without warrants and were being held in custody without having received a probable cause determination, prompt or otherwise. Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs' injury was at that moment capable of being redressed through injunctive relief. The County's argument that the constitutional violation had already been "completed" relies on a crabbed reading of the complaint. This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint.
"[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires."
United States Parole Comm'n v. Geraghty, 445 U. S. 388, 445 U. S. 399 (1980), citing Gerstein, supra, 420 U.S. at 420 U. S. 110, n. 11. In such cases, the "relation back" doctrine is properly invoked to preserve the merits of the case for judicial resolution. See Swisher v. Brady, 438 U. S. 204, 438 U. S. 213-214, n. 11 (1978); Sosna, supra, 419 U.S. at 419 U. S. 402, n. 11. Accordingly, we proceed to the merits.
"must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest."
Id. at 420 U. S. 125 (emphasis added).
The Court thus established a "practical compromise" between the rights of individuals and the realities of law enforcement. Id. at 420 U. S. 113. Under Gerstein, warrantless arrests are permitted, but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause. Id. at 420 U. S. 114. Significantly, the Court stopped short of holding that jurisdictions were constitutionally compelled to provide a probable cause hearing immediately upon taking a suspect into custody and completing booking procedures. We acknowledged the burden that proliferation of pretrial proceedings places on the criminal justice system, and recognized that the interests of everyone involved, including those persons who are arrested, might be disserved by introducing further procedural complexity into an already intricate system. Id. at 420 U. S. 119-123. Accordingly, we left it to the individual States to integrate prompt probable cause determinations into their differing systems of pretrial procedures. Id. at 420 U. S. 123-124.
In so doing, we gave proper deference to the demands of federalism. We recognized that "state systems of criminal procedure vary widely" in the nature and number of pretrial procedures they provide, and we noted that there is no single "preferred" approach. Id. at 420 U. S. 123. We explained further that "flexibility and experimentation by the States" with respect to integrating probable cause determinations was desirable, and that each State should settle upon an approach "to accord with [the] State's pretrial procedure viewed as a whole." Ibid. Our purpose in Gerstein was to make clear that the Fourth Amendment requires every State to provide prompt determinations of probable cause, but that the Constitution does not impose on the States a rigid procedural framework. Rather, individual States may choose to comply in different ways.
cause upon completing the administrative steps incident to arrest. Plainly, if a probable cause hearing is constitutionally compelled the moment a suspect is finished being "booked," there is no room whatsoever for "flexibility and experimentation by the States." Ibid. Incorporating probable cause determinations "into the procedure for setting bail or fixing other conditions of pretrial release" -- which Gerstein explicitly contemplated, id. at 420 U. S. 124 -- would be impossible. Waiting even a few hours so that a bail hearing or arraignment could take place at the same time as the probable cause determination would amount to a constitutional violation. Clearly, Gerstein is not that inflexible.
"requir[ing] a probable cause determination to be made as soon as the administrative steps incident to arrest were completed, and that such steps should require only a brief period."
888 F.2d at 1278 (emphasis added) (internal quotations omitted). This same reading is advanced by the dissent. See post at 500 U. S. 59 (opinion of MARSHALL, J.); post at 500 U. S. 61-63, 500 U. S. 65 (opinion of SCALIA, J.). The foregoing discussion readily demonstrates the error of this approach. Gerstein held that probable cause determinations must be prompt -- not immediate. The Court explained that "flexibility and experimentation" were "desirab[le]"; that "[t]here is no single preferred pretrial procedure"; and that "the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole." 420 U.S. at 420 U. S. 123. The Court of Appeals and the dissent disregard these statements, relying instead on selective quotations from the Court's opinion. As we have explained, Gerstein struck a balance between competing interests; a proper understanding of the decision is possible only if one takes into account both sides of the equation.
early 1800's to the effect that an arresting officer must bring a person arrested without a warrant before a judicial officer "as soon as he reasonably can.'" Post at 500 U. S. 61 (emphasis in original). This vague admonition offers no more support for the dissent's inflexible standard than does Gerstein's statement that a hearing follow "promptly after arrest." 420 U.S. at 420 U. S. 125. As mentioned at the outset, the question before us today is what is "prompt" under Gerstein. We answer that question by recognizing that Gerstein struck a balance between competing interests.
But flexibility has its limits; Gerstein is not a blank check. A State has no legitimate interest in detaining for extended periods individuals who have been arrested without probable cause. The Court recognized in Gerstein that a person arrested without a warrant is entitled to a fair and reliable determination of probable cause, and that this determination must be made promptly.
cause determinations must be "prompt." This vague standard simply has not provided sufficient guidance. Instead, it has led to a flurry of systemic challenges to city and county practices, putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations. See, e.g., McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (CA9 1989); Scott v. Gates, Civ. No. 84-8647 (CD Cal.Oct. 3, 1988); see also Bernard v. Palo Alto, 699 F.2d 1023 (CA9 1983); Sanders v. Houston, 543 F.Supp. 694 (SD Tex.1982), affirmance order, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000 (DC 1978).
often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.
Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that, in a particular case, it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.
accommodation between legitimate competing concerns. We do no more than recognize that such accommodation can take place without running afoul of the Fourth Amendment.
Everyone agrees that the police should make every attempt to minimize the time a presumptively innocent individual spends in jail. One way to do so is to provide a judicial determination of probable cause immediately upon completing the administrative steps incident to arrest -- i.e., as soon as the suspect has been booked, photographed, and fingerprinted. As JUSTICE SCALIA explains, several States, laudably, have adopted this approach. The Constitution does not compel so rigid a schedule, however. Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process -- such as bail hearings and arraignments -- may be chosen. Even then, every effort must be made to expedite the combined proceedings. See 420 U.S. at 420 U. S. 124.
permissible, meaning that the County is not immune from systemic challenges, such as this class action.
As to arrests that occur early in the week, the County's practice is that "arraignment[s] usually tak[e] place on the last day" possible. 1 App. 82. There may well be legitimate reasons for this practice; alternatively, this may constitute delay for delay's sake. We leave it to the Court of Appeals and the District Court, on remand, to make this determination.
In Gerstein v. Pugh, 420 U. S. 103 (1975), this Court held that an individual detained following a warrantless arrest is entitled to a "prompt" judicial determination of probable cause as a prerequisite to any further restraint on his liberty. See id. at 420 U. S. 114-116, 420 U. S. 125. I agree with JUSTICE SCALIA that a probable cause hearing is sufficiently "prompt" under Gerstein only when provided immediately upon completion of the "administrative steps incident to arrest," id. at 420 U. S. 114. See post at 500 U. S. 62-63. Because the Court of Appeals correctly held that the County of Riverside must provide probable cause hearings as soon as it completes the administrative steps incident to arrest, see 888 F.2d 1276, 1278 (CA9 1989), I would affirm the judgment of the Court of Appeals. Accordingly, I dissent.
I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, 410 U. S. 113 (1973) (right to abortion does exist) with Maryland v. Craig, 497 U. S. 836 (1990) (right to be confronted with witnesses, Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed.
The Court views the task before it as one of "balanc[ing] [the] competing concerns" of "protecting public safety," on the one hand, and avoiding "prolonged detention based on incorrect or unfounded suspicion," on the other hand, ante at 500 U. S. 52. It purports to reaffirm the "practical compromise" between these concerns struck in Gerstein v. Pugh, 420 U. S. 103 (1975), ante at 500 U. S. 53. There is assuredly room for such an approach in resolving novel questions of search and seizure under the "reasonableness" standard that the Fourth Amendment sets forth. But not, I think, in resolving those questions on which a clear answer already existed in 1791, and has been generally adhered to by the traditions of our society ever since. As to those matters, the "balance" has already been struck, the "practical compromise" reached -- and it is the function of the Bill of Rights to preserve that judgment, not only against the changing views of Presidents and Members of Congress, but also against the changing views of Justices whom Presidents appoint and Members of Congress confirm to this Court.
The issue before us today is of precisely that sort. As we have recently had occasion to explain, the Fourth Amendment's prohibition of "unreasonable seizures," insofar as it applies to seizure of the person, preserves for our citizens the traditional protections against unlawful arrest afforded by the common law. See California v. Hodari D., 499 U.S.
621 (1991). One of those -- one of the most important of those -- was that a person arresting a suspect without a warrant must deliver the arrestee to a magistrate "as soon as he reasonably can." 2 M. Hale, Pleas of the Crown 95, n. 13 (1st Am. ed. 1847). See also 4 W. Blackstone, Commentaries *289, *293; Wright v. Court, 107 Eng.Rep. 1182 (K.B. 1825) ("[I]t is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can"); 1 R. Burn, Justice of the Peace 276-277 (1837) ("When a constable arrests a party for treason or felony, he must take him before a magistrate to be examined as soon as he reasonably can") (emphasis omitted). The practice in the United States was the same. See e.g., 5 Am.Jur.2d §§ 76, 77 (1962); Venable v. Huddy, 77 N.J.L. 351, 72 A. 10, 11 (1909); Atchison, T. & S.F.R. Co. v. Hinsdell, 76 Kan. 74, 76, 90 P. 800, 801 (1907); Ocean S.S. Co. v. Williams, 69 Ga. 251, 262 (1883); Johnson v. Mayor and City Council of Americus, 46 Ga. 80, 86-87 (1872); Low v. Evans, 16 Ind. 486, 489 (1861); Tubbs v. Tukey, 57 Mass. 438, 440 (1849) (warrant); Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 254 (1940). Cf. Pepper v. Mayes, 81 Ky. 673 (1884). It was clear, moreover, that the only element bearing upon the reasonableness of delay was not such circumstances as the pressing need to conduct further investigation, but the arresting officer's ability, once the prisoner had been secured, to reach a magistrate who could issue the needed warrant for further detention. 5 Am.Jur.2d §§ 76, 77 (1962); 1 Restatement of Torts § 134 (Comment b) (1934); Keefe v. Hart, 213 Mass. 476, 482, 100 N.E. 558, 559 (1913); Leger v. Warren, 62 Ohio St. 500, 57 N.E. 506, 508 (1900); Burk v. Howley, 179 Pa. 539, 551, 36 A. 327, 329 (1897); Kirk & Son v. Garrett, 84 Md. 383, 405, 35 A. 1089, 1091 (1896); Simmons v. Vandyke, 138 Ind. 380, 384, 37 N.E. 973, 974 (1894) (dictum); Ocean S.S. Co. v. Williams, supra, at 263; Hayes v. Mitchell, 69 Ala. 452, 455 (1881); Kenerson v. Bacon, 41 Vt. 573, 577 (1869); Green v. Kennedy, 48 N.Y.
We discussed and relied upon this common law understanding in Gerstein, see 420 U.S. at 420 U. S. 114-116, holding that the period of warrantless detention must be limited to the time necessary to complete the arrest and obtain the magistrate's review.
with the magistrate's neutral judgment evaporate."
Id. at 420 U. S. 113-114 (emphasis added). We said that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty," id. at 420 U. S. 114, "either before or promptly after arrest," id. at 420 U. S. 125. Though how "promptly" we did not say, it was plain enough that the requirement left no room for intentional delay unrelated to the completion of "the administrative steps incident to arrest." Plain enough, at least, that all but one federal court considering the question understood Gerstein that way. See, e.g., Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (CA7 1986), cert. denied, 481 U.S. 1028 (1987); Bernard v. Palo Alto, 699 F.2d 1023, 1025 (CA9 1983) (per curiam); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1140 (CA4 1982); Mabry v. County of Kalamazoo, 626 F.Supp. 912, 914 (WD Mich.1986); Sanders v. Houston, 58 F.Supp. 694, 699-701 (SD Tex.1982), aff'd, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000, 1004 (DC 1978). See also People ex rel. Maxian v. Brown, 164 App.Div.2d 56, 62-64, 561 N.Y.S.2d 418, 421-422 (1990), aff'd, 77 N.Y.2d 422, 568 N.Y.S.2d 575, 570 N.E.2d 223 (1991); Note, Williams v. Ward: Compromising the Constitutional Right to Prompt Determination of Probable Cause Upon Arrest, 74 Minn.L.Rev.196, 204 (1989). But see Williams v. Ward, 845 F.2d 374 (CA2 1988), cert. denied, 488 U. S. 1020 (1989).
"recognition that the Fourth Amendment does not compel an immediate determination of probable cause upon completing the administrative steps incident to arrest."
is required. But what the Court today means by "not immediate" is that the delay can be attributable to something other than completing the administrative steps incident to arrest and arranging for the magistrate -- namely, to the administrative convenience of combining the probable cause determination with other state proceedings. The result, we learn later in the opinion, is that what Gerstein meant by "a brief period of detention to take the administrative steps incident to arrest" is two full days. I think it is clear that the case neither said nor meant any such thing.
Since the Court's opinion hangs so much upon Gerstein, it is worth quoting the allegedly relevant passage in its entirety.
determination must be made by a judicial officer either before or promptly after arrest."
420 U.S. at 420 U. S. 123-125 (footnotes omitted; emphasis added).
"[i]ncorporating probable cause determinations into the 'procedure for setting bail or fixing other conditions of pretrial release' . . . would be impossible,"
ante at 500 U. S. 54; but it is clear that, if and when it is impossible, Gerstein envisioned that the procedural "experimentation," rather than the Fourth Amendment's requirement of prompt presentation to a magistrate, would have to yield.
ed.1989). It was the purpose of the Fourth Amendment to put this matter beyond time, place and judicial predilection, incorporating the traditional common law guarantees against unlawful arrest. The Court says not a word about these guarantees, and they are determinative. Gerstein's approval of a "brief period" of delay to accomplish "administrative steps incident to an arrest" is already a questionable extension of the traditional formulation, though it probably has little practical effect, and can perhaps be justified on de minimis grounds. [Footnote 2] To expand Gerstein, however, into an authorization for 48-hour detention related neither to the obtaining of a magistrate nor the administrative "completion" of the arrest seems to me utterly unjustified. Mr. McLaughlin was entitled to have a prompt impartial determination that there was reason to deprive him of his liberty -- not according to a schedule that suits the State's convenience in piggybacking various proceedings, but as soon as his arrest was completed and the magistrate could be procured.
believing, as I do not, that "combining" the determination with other proceedings justifies a delay -- we necessarily disagree as well on the subsequent question, which can be described as the question of the absolute time limit. Any determinant of "reasonable promptness" that is within the control of the State (as the availability of the magistrate, the personnel and facilities for completing administrative procedures incident to arrest, and the timing of "combined procedures" all are) must be restricted by some outer time limit, or else the promptness guarantee would be worthless. If, for example, it took a full year to obtain a probable cause determination in California because only a single magistrate had been authorized to perform that function throughout the State, the hearing would assuredly not qualify as "reasonably prompt." At some point, legitimate reasons for delay become illegitimate.
I do not know how the Court calculated its outer limit of 48 hours. I must confess, however, that I do not know how I would do so either, if I thought that one justification for delay could be the State's "desire to combine." There are no standards for "combination," and as we acknowledged in Gerstein the various procedures that might be combined "vary widely" from State to State. 420 U.S. at 420 U. S. 123. So as far as I can discern (though I cannot pretend to be able to do better), the Court simply decided that, given the administrative convenience of "combining," it is not so bad for an utterly innocent person to wait 48 hours in jail before being released.
If one eliminates (as one should) that novel justification for delay, determining the outer boundary of reasonableness is a more objective and more manageable task. We were asked to undertake it in Gerstein, but declined -- wisely, I think, since we had before us little data to support any figure we might choose. As the Court notes, however, Gerstein has engendered a number of cases addressing not only the scope of the procedures "incident to arrest," but also their duration.
made "without unnecessary delay," it has recently concluded that no more than six hours should be required, except at night. Uniform Rules of Criminal Procedure, 10 U.L.A. App. Criminal Justice Standard 104.1 (Spec.Pamph.1987). Finally, the conclusions of these commissions and judges, both state and federal, are supported by commentators who have examined the question. See, e.g., Brandes, supra, at 478-485 (discussing national 24-hour rule); Note, 74 Minn.L.Rev. at 207-209.
In my view, absent extraordinary circumstances, it is an "unreasonable seizure" within the meaning of the Fourth Amendment for the police, having arrested a suspect without a warrant, to delay a determination of probable cause for the arrest either (1) for reasons unrelated to arrangement of the probable cause determination or completion of the steps incident to arrest, or (2) beyond 24 hours after the arrest. Like the Court, I would treat the time limit as a presumption; when the 24 hours are exceeded, the burden shifts to the police to adduce unforeseeable circumstances justifying the additional delay.
have taken to arrange for his arraignment, up to a maximum of 48 hours.
Justice Story wrote that the Fourth Amendment "is little more than the affirmance of a great constitutional doctrine of the common law." 3 J. Story, Commentaries on the Constitution 748 (1833). It should not become less than that. One hears the complaint, nowadays, that the Fourth Amendment has become constitutional law for the guilty; that it benefits the career criminal (through the exclusionary rule) often and directly, but the ordinary citizen remotely if at all. By failing to protect the innocent arrestee, today's opinion reinforces that view. The common law rule of prompt hearing had as its primary beneficiaries the innocent -- not those whose fully justified convictions must be overturned to scold the police; nor those who avoid conviction because the evidence, while convincing, does not establish guilt beyond a reasonable doubt; but those so blameless that there was not even good reason to arrest them. While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty, we today repudiate one of its core applications so that the presumptively innocent may be left in jail. Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days -- never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as our own.
The Court dismisses reliance upon the common law on the ground that its "vague admonition" to the effect that "an arresting officer must bring a person arrested without a warrant before a judicial officer as soon as he reasonably can'" provides no more support than does Gerstein v. Pugh's, 420 U. S. 103 (1975), "promptly after arrest" language for the "inflexible standard" that I propose. Ante at 500 U. S. 55. This response totally confuses the present portion of my opinion, which addresses the constitutionally permissible reasons for delay, with 500 U. S. which addresses (no more inflexibly, I may say, than the Court's 48-hour rule) the question of an outer time limit. The latter -- how much time, given the functions the officer is permitted to complete beforehand, constitutes "as soon as he reasonably can" or "promptly after arrest" -- is obviously a function not of the common law, but of helicopters and telephones. But what those delay-legitimating functions are -- whether, for example, they include further investigation of the alleged crime or (as the Court says) "mixing" the probable cause hearing with other proceedings -- is assuredly governed by the common law, whose admonition on the point is not at all "vague": only the function of arranging for the magistrate qualifies. The Court really has no response to this. It simply rescinds the common law guarantee.
Ordinarily, I think, there would be plenty of time for "administrative steps" while the arrangements for a hearing are being made. But if, for example, a magistrate is present in the precinct and entertaining probable cause hearings at the very moment a wrongfully arrested person is brought in, I see no basis for intentionally delaying the hearing in order to subject the person to a cataloging of his personal effects, fingerprinting, photographing, etc. He ought not be exposed to those indignities if there is no proper basis for constraining his freedom of movement, and if that can immediately be determined.
The Court claims that the Court of Appeals "concluded that it takes 36 hours to process arrested persons in Riverside County." Ante at 500 U. S. 57. The court concluded no such thing. It concluded that 36 hours (the time limit imposed by the District Court) was "ample" time to complete the arrest, 888 F.2d 1276, 1278 (CA9 1989), and that the county had provided no evidence to demonstrate the contrary. The District Court, in turn, had not made any evidentiary finding to the effect that 36 hours was necessary, but, for unexplained reasons, said that it "declines to adopt the 24-hour standard [generally applied by other courts], but adopts a 36-hour limit, except in exigent circumstances." McLaughlin v. County of Riverside, No. CV87-5597 RG (CD Cal., Apr.19, 1989). 2 App. 332. Before this Court, moreover, the county has acknowledged that "nearly 90 percent of all cases . . . can be completed in 24 hours or less," Brief for District Attorney, County of Riverside, as Amicus Curiae 16, and the examples given to explain the other 10 percent are entirely unpersuasive (heavy traffic on the Southern California freeways, the need to wait for arrestees who are properly detainable because they are visibly under the influence of drugs to come out of that influence before they can be questioned about other crimes; the need to take blood and urine samples promptly in drug cases) with one exception: awaiting completion of investigations and filing of investigation reports by various state and federal agencies. Id. at 16-17. We have long held, of course, that delaying a probable cause determination for the latter reason -- effecting what Judge Posner has aptly called "imprisonment on suspicion, while the police look for evidence to confirm their suspicion," Llaguno v. Mingey, 763 F.2d 1560, 1568 (CA7 1985) -- is improper. See Gerstein, 420 U.S. at 420 U. S. 120, n. 21, citing Mallory v. United States, 354 U. S. 449, 354 U. S. 456 (1957).


THE PEOPLE, Plaintiff and Respondent, v. THOMAS LAMAS VARNUM, Defendant and Appellant.
Thomas Lamas Varnum, in pro. per., and Lester M. Fleischner, under appointment by the Supreme Court, for Defendant and Appellant.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Gordon Ringer, Deputy Attorney General, for Plaintiff and Respondent.
At a previous trial the jury fixed the penalty at death for the kidnaping and murder. We reversed the judgment only as to penalty because of errors condemned in People v. Morse (1964) 60 Cal. 2d 631 [36 Cal. Rptr. 201, 388 P.2d 33]. (People v. Varnum (1964) 61 Cal. 2d 425 [38 Cal. Rptr. 881, 392 P.2d 961].) Before retrial, however, we issued a writ of habeas corpus and reversed the judgment in its entirety on the ground that confessions introduced in evidence had been obtained in violation of Escobedo v. Illinois (1964) 378 U.S. 478 [12 L. Ed. 2d 977, 84 S. Ct. 1758]. The judgment was not final when Escobedo was decided. (In re Varnum (1965) 63 Cal. 2d 629 [47 Cal. Rptr. 769, 408 P.2d 97].) On this appeal defendant does not challenge his conviction of assault with intent to rob James Fields. He challenges only his conviction of the robbery, kidnaping, and murder of Norman Merrill.
The transcript testimony of John Ashton Victoria, who testified at the first trial but could not be located for the second, was the most damaging evidence against defendant. At the time of the crime Victoria, a schoolboy, fry cook, and busboy, was living with Edward Jackson who was convicted with defendant at the first trial. Victoria recounted an evening meeting in Jackson's apartment where defendant and his accomplices planned the robbery. They had one gun, and a neighbor, Thomas Hanks, lent them another, a Colt, which defendant carried in the waistband of his trousers when they left the apartment. They returned about midnight. Victoria testified that defendant gave the Colt to Hanks and that the trio discussed their having killed the victim. Defendant divided the money among the three conspirators, and each gave some to Hanks for the use of his gun.
Defendant's fingerprints were found at the service station on the cardboard box in which credit receipts were kept and on the horn ring and the inside of the left front window of the car used to kidnap the victim. A ballistics expert testified that the lethal bullets had been fired by a Colt such as the one Victoria testified defendant had taken with him.
The foregoing evidence is sufficient to support the verdicts. [2a] Defendant contends, however, that the trial court erred in admitting the alleged murder weapon into evidence, on the ground that it was located as a result of interrogations conducted without the preliminary protections required by Escobedo v. Illinois (1964) 378 U.S. 478 [12 L. Ed. 2d 977, 84 S. Ct. 1758], and People v. Dorado (1965) 62 Cal. 2d 338 [42 Cal. Rptr. 169, 398 P.2d 361].
Police offiers conducted a fruitless search for the gun throughout the building where the Jacksons lived. They then prevailed upon Jackson, who was in jail and had confessed, to telephone his wife, who was in the women's jail, and ask her to reveal the hiding place of the gun. Mrs. Jackson said it was in the fuse box in the hallway of the apartment building, where an officer later found it. The officers thus learned of the hiding place of the gun from both Jackson and his wife who had not been advised of their constitutional rights. The inquiry had focused on both of them, and they were not in custody merely as potential witnesses but had been handcuffed while being transported to jail and had been booked for the murder. Although Mrs. Jackson was not prosecuted for the offense, she was entitled to be advised of her rights before being subjected to police inspired and supervised questioning [66 Cal. 2d 812] by her husband while she was in custody charged with murder. The information elicited from Victoria that implicated defendant also implicated Jackson as a direct participant and indicated that his wife might have encouraged commission of the robbery.
Under these circumstances information and physical evidence secured as a result of questioning the Jacksons without warning them of their rights could not be used against them. (People v. Stoner (1967) 65 Cal. 2d 595, 600 [55 Cal. Rptr. 897, 422 P.2d 585]; People v. Dorado, supra, 62 Cal. 2d 338, 353-354; People v. Bilderbach (1965) 62 Cal. 2d 757, 763-767 [44 Cal. Rptr. 313, 401 P.2d 921]; People v. Ditson (1962) 57 Cal. 2d 415, 439 [20 Cal. Rptr. 165, 369 P.2d 714].) The question remains, however, whether defendant has standing to challenge the violations of the Jacksons' rights.
In cases of searches and seizures conducted in violation of the Fourth Amendment we have held that the defendant has standing to object even when his own rights were not violated. (People v. Martin (1955) 45 Cal. 2d 755, 760-761 [290 P.2d 855].) Otherwise the deterrent effect of the exclusionary rule would be seriously weakened. Defendant contends that we should apply the same rule to Escobedo-Dorado-Miranda violations effectively to deter unlawful police interrogations. Noncoercive questioning is not in itself unlawful, however, and the Fifth and Sixth Amendment rights protected by Escobedo, Dorado, and Miranda are violated only when evidence obtained without the required warnings and waiver is introduced against the person whose questioning produced the evidence. The basis for the warnings required by Miranda is the privilege against self-incrimination (Miranda v. Arizona (1966) 384 U.S. 436, 457-470 [16 L. Ed. 2d 694, 713-721, 86 S. Ct. 1602, 10 A.L.R.3d 974]), and that privilege is not violated when the information elicited from an unwarned suspect is not used against him. (See Murphy v. Waterfront Com. of New York Harbor (1964) 378 U.S. 52, 78-79 [12 L. Ed. 2d 678, 694-695, 84 S. Ct. 1594].) Similarly the right to counsel protected by Escobedo and Dorado is not infringed when the exclusion of any evidence obtained through the violation of the rules of those cases precludes any interference with the suspect's right to effective representation. (See Massiah v. United States (1964) 377 U.S. 201, 206-207 [12 L. Ed. 2d 246, 250-251, 84 S. Ct. 1199].)  Unlike unreasonable searches and seizures, which always violate the Constitution, there is nothing unlawful in questioning an unwarned suspect [66 Cal. 2d 813] so long as the police refrain from physically and psychologically coercive tactics condemned by due process and do not use against the suspect any evidence obtained. fn. 1 [2b] Accordingly, in the absence of such coercive tactics, there is no basis for excluding physical or other nonhearsay evidence acquired as a result of questioning a suspect in disregard of his Fifth and Sixth Amendment rights when such evidence is offered at the trial of another person.
[4a] Defendant next contends that the trial court erred in impeaching Thomas Hanks, a witness called by the prosecution. Hanks had already been convicted and sentenced to prison for his part in the crimes, and the prosecution called him to testify that he lent the murder weapon to defendant for the purpose of the contemplated robbery. When Hanks took the stand he claimed his privilege against self-incrimination.proceeding in the presence of the jury, the trial court brought out the fact that Hanks was no longer subject to prosecution because he had already been convicted. It therefore ordered him to answer the questions. Hanks then denied any personal involvement and any knowledge of defendant's having taken part in the crimes.
 We have held that "evidence of the earlier crime must [66 Cal. 2d 815] meet the rules of admissibility governing proof of that crime or be otherwise properly admissible in the penalty proceeding." (People v. Purvis (1961) 56 Cal. 2d 93, 97 [13 Cal. Rptr. 801, 362 P.2d 713]; People v. Hamilton (1963) 60 Cal. 2d 105, 129-131 [32 Cal. Rptr. 4, 383 P.2d 412]; People v. Bentley (1962) 58 Cal. 2d 458, 460-461 [24 Cal. Rptr. 685, 374 P.2d 645].)  Moreover, because evidence of other crimes "may have a particularly damaging impact on the jury's determination whether the defendant should be executed ..." they must be proved beyond a reasonable doubt before the jury may consider them. (People v. Polk (1965) 63 Cal. 2d 443, 450 [47 Cal. Rptr. 1, 406 P.2d 641]; see also People v. Terry (1964) 61 Cal. 2d 137, 149 [37 Cal. Rptr. 605, 390 P.2d 381].) Accordingly, at the trial on the issue of penalty the corpus delicti of an earlier crime must be established before an uncorroborated extrajudicial confession can be admitted (People v. Hamilton, supra), and an earlier crime cannot be proved by hearsay (People v. Purvis, supra).  For the same reasons Penal Code section 1111, prohibiting proof of an earlier crime by the uncorroborated testimony of an accomplice, also applies at the trial on the issue of penalty.
The judgment is reversed insofar as it relates to penalty. In all other respects, it is affirmed.
Tobriner, J., Sullivan, J., and White, J., fn.  concurred.
I concur with the majority in the reversal as to penalty, but I dissent insofar as the majority affirm the balance of the judgment challenged by defendant. That too should be reversed.
At the trial there was introduced the murder weapon, a most important piece of evidence for the prosecution. This gun had been discovered by the police as a direct result of the improper interrogation of Edward Jackson and his wife, also [66 Cal. 2d 816] charged with the murder here involved. The majority opinion frankly admits that the interrogation of the Jacksons was at the accusatory stage--they were both in jail charged with the murder, suspicion had focused on them, and the questions were asked to elicit incriminating information against Varnum as well as the Jacksons. Admittedly, the interrogation of the Jacksons violated the rules laid down in Escobedo v. Illinois, 378 U.S. 478 [12 L. Ed. 2d 977, 84 S. Ct. 1758], and People v. Dorado, 62 Cal. 2d 338 [42 Cal. Rptr. 169, 398 P.2d 361]. There can be no doubt that had this evidence been offered against the Jacksons they could properly have objected to its admission into evidence. But, say the majority, Varnum, also charged with the murder, has no "standing" to challenge the invasion of the Jacksons' constitutional rights. If this holding is correct then a big hole has been blown in the barriers erected by Escobedo, and its progeny. The beneficent purposes intended by Escobedo and the more recent case of Miranda v. Arizona, 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974], have been to a great extent defeated. I am convinced that the United States Supreme Court will not and should not permit such a contraction of its purposes.
This result is reached by the majority although they admit that in the case of an unlawful search and seizure third persons have standing to urge an illegal search although their rights are not directly violated. (People v. Martin, 45 Cal. 2d 755 [290 P.2d 855].) The majority assert, correctly, that the basis of this rule is that otherwise "the deterrent effect of the exclusionary rule would be seriously weakened." Certainly one can say, with even greater emphasis, that the rule here adopted by the majority will seriously impair the deterrent effect on improper police activities intended by Escobedo. A reading of Escobedo, Dorado, and Miranda demonstrates that the rules there adopted were adopted largely to deter improper police activities, just as the unlawful search and seizure rules were adopted for the same purpose. The same rule should be applied to both situations.
The majority seem to think that the problem here involved differs from the unlawful search and seizure situation because the search and seizure was ab initio illegal, while here the original interrogation of the Jacksons was "lawful," and would become unlawful only when and if the confession or its fruits were introduced into evidence against the Jacksons. Since the confession was never introduced against the Jacksons no error was committed. Thus it is said: "Noncoercive questioning is not in itself unlawful" and again, "there is nothing unlawful in questioning unwarned suspects so long as the police refrain from physically and psychologically coercive tactics." Such "reasoning" discloses a misconception of the rules under discussion. Improper interrogation, without the requisite warnings, violated the Fifth and Sixth Amendment rights of the witness. It is "unlawful" to interrogate a suspect without giving him the required warnings from the very moment of the first question. The right of privacy recognized in Escobedo and Miranda has been violated the moment interrogation starts. The fact that the most important sanction imposed for violating that right of privacy is inadmissibility of the confession into evidence, and that the defendant cannot complain in his criminal trial unless the confession is introduced, does not make the interrogation lawful. The same can be said about an unlawful search and seizure; yet there is no doubt that the unlawful search is unlawful when committed, and not when the fruits of such search are introduced into evidence. The one thing made crystal clear by Escobedo and certainly by the explanation of that case in Miranda is that it is unlawful to interrogate without giving the required warnings.
What the sanction may be if the confession is not introduced we need not now determine. All that we have to determine is that the interrogation was unlawful. Violation of the Fourth Amendment occurs at the time of the unlawful search. Violation of the Fifth Amendment occurs the moment defendant is induced to give incriminating information. Violation of the Sixth Amendment occurs the moment the accused is interrogated without being informed of the right to counsel. What the majority fail to realize is that Escobedo, Dorado and Miranda pushed back the impact of the Fifth and Sixth Amendments from the courtroom to the police station.
Carried to its logical conclusion the rule that interrogation is not unlawful until the results of that interrogation are [66 Cal. 2d 818] introduced in evidence in a criminal trial, suggested by the majority, would mean that the privilege against self-incrimination does not exist when a witness is interrogated by a legislative committee because legislative committees are not engaged in criminal trials. I am sure the majority intended no such ridiculous result, but that would seem to be the result of their reasoning.
In support of its contention that the violation of the privilege against self-incrimination does not occur until the evidence is used against the accused the majority rely on Murphy v. Waterfront Com. of New York Harbor, 378 U.S. 52, 78-79 [12 L. Ed. 2d 678, 694-695, 84 S. Ct. 1594]. That is the case that repudiated the old rule that one jurisdiction could compel a witness to testify where his testimony, although not incriminatory in that jurisdiction might incriminate him under the laws of another jurisdiction. The state had granted the witness immunity under state law, but he claimed the privilege on the ground that his testimony would incriminate him under federal law.
It was held that under its grant of immunity the state could compel the witness to testify and that the witness' privilege would be protected by precluding the federal authorities from using the testimony in a criminal prosecution against him. But this holding does not support the thesis of the majority. The court adopted the rule announced to "accommodate the interests of the State and Federal Governments in investigating" crime. Unless the state under its immunity statute could take the testimony the whole purpose of the immunity statutes would be defeated in many, if not most, situations for which they were designed. No such competing state and federal interests are here involved.
Implicit in the holding that noncoercive questioning is lawful until the confession is introduced in a criminal trial is the concept that such noncoercive interrogation is desirable and to be encouraged. To the contrary Escobedo, Dorado and Miranda tell us in no uncertain terms that all such interrogations are to be discouraged. Insofar as we permit the fruits of an interrogation in violation of those cases to be introduced into evidence we are encouraging not deterring unlawful police activity.
The practical effects of such a holding cannot be minimized. What the majority have done is to attempt to turn a doctrine protective of constitutional rights into a rule of evidence. It must be remembered that the rule of the majority holding that interrogation without warnings is lawful not only encourages such interrogations but also encourages officers to ignore express requests for counsel and to ignore assertions of reliance on the privilege against self-incrimination. Under Dorado and Miranda the same rules are applicable to both situations. In Miranda the court unequivocally covered the situation under discussion in the following language. (Miranda v. Arizona, 384 U.S. 436, at pp. 473-474 [16 L. Ed. 2d 694 at p. 723, 86 S. Ct. 1602, 10 A.L.R.3d 974].) "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Footnote omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present."
I interpret those words as limitations on police activity--the majority do not. A conscientious police officer must, of course, try to obtain evidence by every lawful means. Now he is impliedly told by the majority that, where there are multiple suspects, he may, without giving the required warnings and despite the suspect's request for counsel or desire to remain silent, interrogate one suspect in violation of these rights in the hope of getting admissible evidence against the other suspects. The majority opinion can be interpreted as not only condoning but in effect encouraging such violation of fundamental constitutional rights.
I would hold the admission of the gun was error, and under [66 Cal. 2d 820] the facts clearly prejudicial. I would reverse the entire judgment appealed from.
I concur in the affirmance of the judgment as to guilt but dissent from the reversal of the judgment as to penalty. In my opinion it is not reasonably probable that a result more favorable to defendant would have been reached had the asserted error relating to the testimony of Thomas Hanks not been committed. (Cal. Const., art. VI, § 13; People v. Watson, 46 Cal. 2d 818, 836-837 [299 P.2d 243].) Hanks testified that he, defendant and others committed two robberies on the street, that defendant was unarmed on both occasions, and that on neither occasion was the victim hurt. These offenses were of a minor character compared to the other crimes defendant committed, and they added little to the prosecution's case. It appears that defendant brutally killed his robbery victim, James Merrill, by shooting him twice in the back after robbing him and kidnaping him for the purpose of robbery. Defendant also committed an assault with an intent to commit robbery upon James Fields, and during the commission of that offense after Fields had fallen defendant pointed his revolver directly at Fields and pulled the trigger. In addition defendant has twice been convicted of the unlawful taking or driving of a vehicle.
Under the circumstances, in my opinion the alleged error relating to Hanks' testimony did not result in a miscarriage of justice, and I would affirm the judgment in its entirety.
FN 3. Defendant contends that in its instructions on the law of accomplice responsibility the trial court in effect directed the jury to find him guilty. The court instructed that if anyone had committed the crimes charged, then Hanks, as a matter of law, was an accomplice. Because the jury already knew that Hanks had been convicted for his part in the crimes, defendant argues, the jury could only conclude that he was defendant's accomplice. The instruction, however, like the revelation of Hanks' conviction, in no way connected defendant with Hanks.
FN 4. Pen. Code, § 1111, was enacted in 1872. The penalty trial procedure, provided by Pen. Code, § 190.1, was not established until 1957.
FN . Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.