OCTOBER TERM, 1993
Syllabus
POWELL v. NEVADA
CERTIORARI TO THE SUPREME COURT OF NEVADA No.92-8841. Argued
February 22, 1994-Decided March 30,1994
Petitioner Powell was arrested on November 3, 1989, for felony
child abuse. Not until November 7, however, did a Magistrate find
probable cause to hold him for a preliminary hearing. The child in
question subsequently died of her injuries, and Powell was charged
additionally with her murder. At the trial, the state prosecutor
presented prejudicial statements Powell had made to the police on
November 7. The jury found him guilty and sentenced him to death.
On appeal, the Nevada Supreme Court, sua sponte, raised the
question whether the 4-day delay in judicial confirmation of
probable cause violated the Fourth Amendment, in view of County of
Riverside v. McLaughlin,
500 U. S. 44, which held
that a judicial probable-cause determination must generally be made
within 48 hours of a warrantless arrest, and that, absent
extraordinary circumstances, a longer delay is unconstitutional.
The state court decided that McLaughlin was inapplicable to
Powell's case, because his prosecution commenced prior to the
rendition of that decision.
Held: The Nevada Supreme Court erred in failing to recognize
that McLaughlin's 48-hour rule must be applied retroactively, for
under Griffith v. Kentucky,
479 U. S. 314, 328, "a
... rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, ... not yet final"
when the rule is announced. Although the 4-day delay here was
presumptively unreasonable under McLaughlin, it does not
necessarily follow that Powell must be set free or gain other
relief. Several questions remain open for decision on remand,
including the appropriate remedy for a delay in determining
probable cause (an issue not resolved by McLaughlin), the
consequence of Powell's failure to raise the federal question, and
whether introduction at trial of what Powell said on November 7 was
"harmless" in view of a similar, albeit shorter, statement he made
prior to his arrest. Pp. 83-85.
108 Nev. 700,838 P. 2d 921, vacated and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ.,
joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST,
C. J., joined, post, p. 85.
Michael Pescetta argued the cause and filed briefs for
petitioner.
80
Dan M. Seaton argued the cause and filed a brief for
respondent.
Miguel A. Estrada argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were
Solicitor General Days, Assistant Attorney General Harris, and
Deputy Solicitor General Bryson.*
JUSTICE GINSBURG delivered the opinion of the Court.
In Gerstein v. Pugh,
420 U. S. 103 (1975), we
held that the Fourth Amendment's shield against unreasonable
seizures requires a prompt judicial determination of probable cause
following an arrest made without a warrant and ensuing detention.
County of Riverside v. McLaughlin,
500 U. S. 44 (1991),
established that "prompt" generally means within 48 hours of the
warrantless arrest; absent extraordinary circumstances, a longer
delay violates the Fourth Amendment. In the case now before us, the
Supreme Court of Nevada stated that McLaughlin does not apply to a
prosecution commenced prior to the rendition of that decision. We
hold that the Nevada Supreme Court misread this Court's precedent:
"[A] ... rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, ... not yet
final" when the rule is announced. Griffith v. Kentucky,
479 U. S. 314, 328
(1987).
*Briefs of amici curiae urging affirmance were filed for the
State of Utah et al. by Jan Graham, Attorney General of Utah, Carol
Clawson, Solicitor General, and
J. Kevin Murphy, Assistant
Attorney General, Grant Woods, Attorney General of Arizona, John M.
Bailey, Chief State's Attorney of Connecticut, Robert A. Marks,
Attorney General of Hawaii, Larry EchoHawk, Attorney General of
Idaho, Robert T. Stephan, Attorney General of Kansas, Chris Gorman,
Attorney General of Kentucky, Richard p. Ieyoub, Attorney General
of Louisiana, Scott Harshbarger, Attorney General of Massachusetts,
Joseph P. Mazurek, Attorney General of Montana, Fred DeVesa,
Attorney General of New Jersey, Susan B. Loving, Attorney General
of Oklahoma, Lee Fisher, Attorney General of Ohio, and T. Travis
Medlock, Attorney General of South Carolina; and for the Criminal
Justice Legal Foundation by Kent S. Scheidegger.
81
I
Petitioner Kitrich Powell was arrested on Friday, November 3,
1989, for felony child abuse of his girlfriend's 4-yearold
daughter, in violation of Nev. Rev. Stat. § 200.508 (1991). That
afternoon, the arresting officer prepared a sworn declaration
describing the cause for and circumstances of the arrest. Not until
November 7, 1989, however, did a Magistrate find probable cause to
hold Powell for a preliminary hearing. That same day, November 7,
Powell made statements to the police, prejudicial to him, which the
prosecutor later presented at Powell's trial. Powell was not
personally brought before a Magistrate until November 13, 1989. By
that time, the child had died of her injuries, and Powell was
charged additionally with her murder.
A jury found Powell guilty of first-degree murder and, following
a penalty hearing, sentenced him to death. On appeal to the Nevada
Supreme Court, Powell argued that the State had violated Nevada's
"initial appearance" statute by failing to bring him before a
magistrate within 72 hours, and that his conviction should
therefore be reversed.
The Nevada statute governing appearances before a magistrate
provides:
"If an arrested person is not brought before a magistrate within
72 hours after arrest, excluding nonjudicial days, the
magistrate:
"(a) Shall give the prosecuting attorney an opportunity to
explain the circumstances leading to the delay; and
"(b) May release the arrested person if he determines that the
person was not brought before a magistrate without unnecessary
delay." Nev. Rev. Stat. § 171.178(3) (1991).
Powell emphasized that 10 days had elapsed between his arrest on
November 3, 1989, and his November 13 initial appearance before a
Magistrate. In view of the incriminating
82
statements he made on November 7, Powell contended, the unlawful
delay was prejudicial to him. Under Nevada law, Powell asserted,
vindication of his right to a speedy first appearance required that
his conviction be reversed, and that he be set free. Appellant's
Opening Brief in No. 22348 (Nev.), p. 85.
The district attorney maintained before the Nevada Supreme Court
that there had been no fatal violation of Nevada's initial
appearance statute. First, the district attorney urged, the
confirmation of probable cause by a Magistrate on November 7
occurred within 72 hours of the November 3 arrest (excluding the
intervening weekend). This probablecause finding, the district
attorney contended, satisfied the 72-hour prescription of Nev. Rev.
Stat. § 171.178. In any event, the district attorney continued,
under Nevada law, an accused waives his right to a speedy
arraignment when he voluntarily waives his right to remain silent
and his right to counsel. Powell did so, the district attorney
said, when he made his November 7 statements, after he was read his
Miranda rights and waived those rights. See Respondent's
Answering Brief in No. 22348 (Nev.), pp. 56-60. In reply, Powell
vigorously contested the district attorney's portrayal of the
probable-cause determination as tantamount to an initial appearance
sufficient to satisfy Nev. Rev. Stat. § 171.178's 72-hour
prescription. Powell pointed out that he "was neither present [n]or
advised of the magistrate's finding." Appellant's Reply Brief in
No. 22348 (Nev.), p. 1.
The Nevada Supreme Court concluded, in accord with the district
attorney's assertion, that Powell had waived his right under state
law to a speedy arraignment. 108 Nev. 700, 705, 838 P. 2d 921,
924-925 (1992). If the Nevada Supreme Court had confined the
decision to that point, its opinion would have resolved no federal
issue. But the Nevada Supreme Court said more. Perhaps in response
to the district attorney's contention that the Magistrate's
November 7 probable-cause notation satisfied Nev. Rev. Stat. §
171.178 (a
83
contention the State now disavows), the Nevada Supreme Court,
sua sponte, raised a federal concern. That court detoured from its
state-law analysis to inquire whether the November 3 to November 7,
1989, delay in judicial confirmation of probable cause violated the
Fourth Amendment under this Court's precedents.
County of Riverside v. McLaughlin,
500 U. S. 44 (1991), the
Nevada Supreme Court recognized, made specific the probable-cause
promptness requirement of Gerstein v. Pugh,
420 U. S. 103 (1975);
McLaughlin instructed that a delay exceeding 48 hours presumptively
violates the Fourth Amendment. Merging the speedy initial
appearance required by Nevada statute and the prompt probable-cause
determination required by the Fourth Amendment, the Nevada Supreme
Court declared: "The McLaughlin case renders [Nev. Rev. Stat. §
]171.178(3) unconstitutional insofar [as] it permits an initial
appearance up to seventy-two hours after arrest and instructs that
non-judicial days be excluded from the calculation of those hours."
108 Nev., at 705,838 P. 2d, at 924. While instructing that,
henceforth, probable-cause determinations be made within 48 hours
of a suspect's arrest, the Nevada Supreme Court held McLaughlin
inapplicable "to the case at hand," because that recent precedent
postdated Powell's arrest. 108 Nev., at 705, n. 1, 838 P. 2d, at
924, n. 1. McLaughlin announced a new rule, the Nevada Supreme
Court observed, and therefore need not be applied retroactively.
108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1.
Powell petitioned for our review raising the question whether a
state court may decline to apply a recently rendered Fourth
Amendment decision of this Court to a case pending on direct
appeal. We granted certiorari, 510 U. S. 811 (1993), and now reject
the state court's prospectivity declaration.
II
Powell's arrest was not validated by a magistrate until four
days elapsed. That delay was presumptively unreason-
84
able under McLaughlin's 48-hour rule. The State so concedes.
Appellee's Answer to Petition for Rehearing in No. 22348 (Nev.), p.
7; Tr. of Oral Arg. 28. The State further concedes that the Nevada
Supreme Court's retroactivity analysis was incorrect. See ibid. We
held in Griffith v. Kentucky, 479 U. S., at 328, that "a new rule
for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct
review or not yet final." Griffith stressed two points. First, "the
nature of judicial review ... precludes us from '[s]imply fishing
one case from the stream of appellate review, using it as a vehicle
for pronouncing new constitutional standards, and then permitting a
stream of similar cases subsequently to flow by unaffected by that
new rule.'" Id., at 323 (quoting Mackey v. United States,
401 U. S. 667, 679 (1971)
(Harlan, J., concurring in judgment)). Second, "selective
application of new rules violates the principle of treating
similarly situated defendants the same." Griffith, supra, at 323.
Assuming, arguendo, that the 48-hour presumption announced in
McLaughlin qualifies as a "new rule," cf. Teague v. Lane,
489 U. S. 288, 299-310
(1989), Griffith nonetheless entitles Powell to rely on McLaughlin
for this simple reason: Powell's conviction was not final when
McLaughlin was announced.
It does not necessarily follow, however, that Powell must "be
set free," 108 Nev., at 705, n. 1, 838 P. 2d, at 924, n. 1, or gain
other relief, for several questions remain open for decision on
remand. In particular, the Nevada Supreme Court has not yet closely
considered the appropriate remedy for a delay in determining
probable cause (an issue not resolved by McLaughlin), or the
consequences of Powell's failure to raise the federal question, or
the district attorney's argument that introduction at trial of what
Powell said on November 7, 1989, was "harmless" in view of a
similar, albeit shorter, statement Powell made on November 3, prior
to his arrest. See Brief for Respondent 22. Expressing no opin-
85
ion on these issues, * we hold only that the Nevada Supreme
Court erred in failing to recognize that Griffith v. Kentucky calls
for retroactive application of McLaughlin's 48-hour rule.
***
For the reasons stated, the judgment of the Nevada Supreme Court
is vacated, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE joins,
dissenting.
After concluding that the Nevada Supreme Court erred by failing
to follow our decision in Griffith v. Kentucky, 479 U. S.
*JUSTICE THOMAS would reach out and decide the first of these
questions, though it is not presented in the petition for review.
He would rule inappropriate "suppression of [Powell's November 7]
statement ... because the statement was not a product of the
McLaughlin violation." Post, at 89. It is "settled law," he
maintains, post, at 88, that if probable cause in fact existed for
Powell's detention, then McLaughlin's 48-hour rule, though
violated, triggers no suppression remedy. Quite the opposite,
JUSTICE THOMAS recognizes, is "settled law" regarding search
warrants: A court's postsearch validation of probable cause will
not render the evidence admissible. See Vale v. Louisiana,
399 U. S. 30, 35, 34
(1970) (absent circumstances justifying a warrantless search, it is
"constitutional error [to] admi[t] into evidence the fruits of the
illegal search," "even though the authorities ha[d] probable cause
to conduct it").
JUSTICE THOMAS maintains, however, that our precedents,
especially New York v. Harris,
495 U. S. 14 (1990),
already establish that no suppression is required in Powell's case.
In Harris, we held that violation of the Fourth Amendment's rule
against warrantless arrests in a dwelling, see Payton v. New York,
445 U. S. 573
(1980), generally does not lead to the suppression of a postarrest
confession. But Powell does not complain of police failure to
obtain a required arrest warrant. He targets a different
constitutional violation-failure to obtain authorization from a
magistrate for a significant period of pretrial detention. Whether
a suppression remedy applies in that setting remains an unresolved
question. Because the issue was not raised, argued, or decided
below, we should not settle it here.
86
314 (1987), the Court remands this case without deciding whether
the ultimate judgment below, despite the error, was correct. In my
view, the lower court's judgment upholding petitioner's conviction
was correct under settled legal principles, and therefore should be
affirmed.
I
The petition for certiorari in this case presented a single
question for review-namely, whether a particular decision of this
Court concerning criminal procedure should apply retroactively to
all cases pending on direct review. This question was well settled
at the time the petition was filed, and had been since our decision
in Griffith, in which we stated that "a new rule for the conduct of
criminal prosecutions is to be applied retroactively to all cases,
state or federal, pending on direct review or not yet final." 479
U. S., at 328. The Nevada Supreme Court made a statement to the
contrary in a footnote in its opinion. See infra, at 87.
Notwithstanding this obvious mistake, Griffith's rule of
retroactivity had generated little or no confusion among the lower
courts. In my view, under these circumstances, the writ was
improvidently granted.
According to this Court's Rule 10.1, "[a] petition for a writ of
certiorari will be granted only when there are special and
important reasons therefor." Not only were there no special or
important reasons favoring review in this case, but, as Justice
Stewart once wrote: "The only remarkable thing about this case is
its presence in this Court. For the case involves no more than the
application of well-settled principles to a familiar situation, and
has little significance except for the [parties]." Butz v. Glover
Livestock Commission
Co., 411 U. S. 182, 189 (1973)
(dissenting opinion). As the Court has observed in the past, "it is
very important that we be consistent in not granting the writ of
certiorari except in cases involving principles the settlement of
which is of importance to the public as distinguished from that of
the
87
parties, and in cases where there is a real and embarrassing
conflict of opinion and authority between the circuit courts of
appeal." Layne & Bowler Corp. v. Western Well Works, Inc.,
261 U. S. 387,
393 (1923). We make poor use of judicial resources when, as here,
we take a case merely to reaffirm (without revisiting) settled law.
See generally Estelle v. Gamble,
429 U. S. 97, 115 (1976)
(STEVENS, J., dissenting); United States v. Shannon,
342 U. S. 288, 294-295
(1952) (opinion of Frankfurter, J.).
Now that we have invested time and resources in full briefing
and oral argument, however, we must decide how properly to dispose
of the case. The Court vacates and remands because the Nevada
Supreme Court erred, not in its judgment, but rather in its
"prospectivity declaration." Ante, at 83. The "declaration" to
which the Court refers is the state court's statement that our
decision in County of Riverside v. McLaughlin,
500 U. S. 44 (1991), does
"not apply retroactively." 108 Nev. 700, 705, n. 1, 838 P. 2d 921,
924, n. 1 (1992). The Court correctly rules that McLaughlin does
apply retroactively. See Griffith, supra. Rather than remanding, I
believe that the Court in this instance can and should definitively
resolve the case before us: "Our job ... is to review judgments,
not to edit opinions .... " Phillips Petroleum Co. v. Shutts,
472 U. S. 797,
823 (1985) (STEVENS, J., concurring in part and dissenting in
part). See also K mart Corp. v. Cartier, Inc.,
485 U. S. 176, 185
(1988); Black
Of course, when there is a need for further factfinding or for
proceedings best conducted in the lower courts, or where the
ultimate question to be decided depends on debatable points of law
that have not been briefed or argued, we regularly determine that
the best course is to remand. See, e.
g., Pierce v.
Underwood,
487 U. S.
552, 574 (1988) (vacating award of attorney's fees and
remanding for recalculation of fee award). Those concerns, however,
do not require a remand in this case. In defense of the judgment
below, re-
88
spondent and its
amici have properly raised a number of
arguments, see
Blum v.
Bacon, 457 U. S. 132, 137, n. 5
(1982), which have been fully briefed. As I explain below, at least
one of those arguments provides a ground for decision that would
require only the application of settled law to the undisputed facts
in the record before us. Under these circumstances, remanding will
merely require the needless expenditure of further judicial
resources on a claim that lacks merit.
II
While in petitioner's care on November 2, 1989, 4-year-old Melea
Allen suffered massive head and spinal injuries. When petitioner
took her to the hospital the following day, November 3, she was
comatose and suffering respiratory failure. Petitioner told doctors
and nurses that she had fallen from his shoulders during play. When
emergency room personnel discovered that Melea also had numerous
bruises and lacerations on her body-injuries that suggested she had
been abused repeatedly-they called the police. Petitioner spoke to
the officers who responded to the call and again explained that the
child's injuries were the result of an accidental fall.
Several hours later, the police arrested petitioner for child
abuse. Within an hour of the arrest, officers prepared a
declaration of arrest that recited the above facts to establish
probable cause. Petitioner was still in custody on November 7,
when, after receiving
Miranda warnings, he agreed to give a
second statement to the police. He repeated the same version of
events he had given at the hospital before his arrest, but in
slightly more detail. On that same day, a Magistrate, relying on
the facts recited in the declaration of arrest described above,
determined that petitioner's arrest had been supported by probable
cause. The next day Melea died, and petitioner was charged with
first-degree murder.
Petitioner contends that respondent's delay in securing a prompt
judicial determination of probable cause to arrest
89
him for child abuse violated the rule that a probable-cause
determination must, absent extenuating circumstances, be made by a
judicial officer within 48 hours of a warrantless arrest.
McLaughlin, supra. The McLaughlin error, petitioner argues,
required suppression of the custodial statement he made on November
7, which was introduced against him at trial.
Against that argument, respondent and its amici raise several
contentions: first, that suppression of evidence would never be an
appropriate remedy for a McLaughlin violation; second, that the
statement at issue here was not a product of the McLaughlin error,
or at least that the connection between the McLaughlin violation
and the statement is so attenuated that suppression is not
required; third, that suppression is inappropriate under Illinois
v. Krull,
480 U. S.
340 (1987), because the officers acted in good-faith reliance
on a state statute that authorized delays of up to 72 hours
(excluding weekends and holidays) in presenting a defendant to a
magistrate; and finally, that even if the statement should have
been suppressed, admitting it at trial was harmless error. Even
assuming, arguendo, that suppression is a proper remedy for
McLaughlin errors, see ante, at 85, n., I believe that, on the
facts of this case, suppression of petitioner's statement would not
be appropriate because the statement was not a product of the
McLaughlin violation.
Our decisions make clear "that evidence will not be excluded as
'fruit' [of an unlawful act] unless the illegality is at least the
'but for' cause of the discovery of the evidence." Segura v. United
States,
468 U. S.
796, 815 (1984). As Segura suggests, "but for" causation is a
necessary, but not sufficient, condition for suppression: "[W]e
have declined to adopt a per se or but for rule that would make
inadmissible any evidence ... which somehow came to light through a
chain of causation that began with a [violation of the Fourth or
Fifth Amendment]." New York v. Harris,
495 U. S. 14, 17
90
(1990) (internal quotation marks omitted). See also United
States v. Ceccolini,
435 U. S. 268, 276
(1978).
Contrary to petitioner's arguments, the violation of McLaughlin
(as opposed to his arrest and custody) bore no causal relationship
whatsoever to his November 7 statement. The timing of the
probable-cause determination would have affected petitioner's
statement only if a proper hearing at or before the 48-hour mark
would have resulted in a finding of no probable cause. Yet, as the
Magistrate found, the police had probable cause to suspect
petitioner of child abuse, cf. Illinois v. Gates,
462 U. S. 213 (1983), and
there is no suggestion that the delay in securing a determination
of probable cause permitted the police to gather additional
evidence to be presented to the Magistrate. On the contrary, the
Magistrate based his determination on the facts included in the
declaration of arrest that was completed within an hour of
petitioner's arrest. Thus, if the probable-cause determination had
been made within 48 hours as required by McLaughlin, the same
information would have been presented, the same result would have
obtained, and none of the circumstances of petitioner's custody
would have been altered.
Moreover, it cannot be argued that the McLaughlin error somehow
made petitioner's custody unlawful and thereby rendered the
statement the product of unlawful custody. Because the arresting
officers had probable cause to arrest petitioner, he was lawfully
arrested at the hospital. Cf. Harris, supra, at 18.1 The
presumptively unconstitutional delay in
1 The fact that the arrest was supported by probable cause and
was not investigatory in nature fully distinguishes this case from
our decisions in Taylor v. Alabama,
457 U. S. 687 (1982),
Brown v. Illinois,
422 U. S. 590 (1975), and
Dunaway v. New York,
442 U. S. 200 (1979).
Where probable cause for an arrest is lacking, as it was in each of
those cases, evidence obtained as a result of the Fourth Amendment
violation "bear[s] a sufficiently close relationship to the
underlying illegality [to require suppression]." New York v.
Harris,
495 U. S.
14, 19 (1990). The presence of probable cause, by contrast,
validates the arrest and attendant custody, despite "'technical'
violations of Fourth Amendment rights" that may
91
securing a judicial determination of probable cause during a
period of lawful custody did not render that custody illegal. We
have never suggested that lawful custody becomes unlawful due to a
failure to obtain a prompt judicial finding of probable cause-that
is, probable cause does not disappear if not judicially determined
within 48 hours. Cf. United States v. Montalvo-Murillo,
495 U. S. 711, 722 (1990)
("[A] person does not become immune from detention because of a
timing violation").
In short, the statement does not even meet the threshold
requirement of being a "product" of the McLaughlin violation.2
Petitioner's statement, "while the product of an ar-
have occurred during either. Brown, supra, at 611 (Powell, J.,
concurring in part). See also Harris, supra, at 18 (holding that
even though the police violated the rule of Payton v. New York,
445 U. S. 573
(1980), by arresting a suspect in his house without a warrant, the
resulting custody was lawful because the arrest was supported by
probable cause, and that therefore the suspect's subsequent
custodial statement was admissible).
As the Court notes, ante, at 85, n., a different rule applies to
search warrants. In that context, we have insisted that, absent
exigent circumstances, police officers obtain a search warrant,
even if they had probable cause to conduct the search, see, e. g.,
Coolidge v. New Hampshire,
403 U. S. 443, 454-455
(1971), and we have required suppression of all fruits of an
unlawful search, unless an exception to the exclusionary rule
applies. See generally Illinois v. Krull,
480 U. S. 340, 347-349
(1987). The same rule has not been applied to arrests. "[W]hile the
Court has expressed a preference for the use of arrest warrants
when feasible, it has never invalidated an arrest supported by
probable cause solely because the officers failed to secure a
warrant." Gerstein v. Pugh,
420 U. S. 103, 113 (1975)
(citations omitted). Nor has the Court required suppression of
voluntary custodial statements made after an arrest supported by
probable cause based solely on the officers' failure to obtain a
warrant. See Harris, supra. Petitioner's statement was the product
of his arrest and custody, and there is no reason to think that the
rules we have developed in the search warrant context should apply
in this case.
2 Thus, conventional attenuation principles are inapplicable in
this case, for as we pointed out in Harris, "attenuation analysis
is only appropriate where, as a threshold matter, courts determine
that 'the challenged evidence is in some sense the product of
illegal governmental activity.''' 495 U. S., at 19 (quoting United
States v. Crews,
445
U. S. 463, 471 (1980)).
92
rest and being in custody, was not the fruit of the fact" that a
judicial determination of probable cause was not made within the
48-hour period mandated by McLaughlin. Harris, supra, at 20. Under
these circumstances, suppression is not warranted under our
precedents.
***
For the foregoing reasons, the judgment below should be
affirmed.
I respectfully dissent.
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