MOSK, J. I dissent.
Taking the majority conclusions seriatim, I would hold that (1) an arrest warrant based on the complainant’s information and belief is valid; (2) sections 806, 813, and 952 of the Penal Code have consistently and reasonably been interpreted in practice as authorizing the issuance of warrants of arrest based upon complaints couched in the language of the charged offense, and the sections are not violative of the Fourth Amendment; (3) handwriting exemplars are admissible regardless of whether they are taken before or after arrest and the nature of the arrest itself is irrelevant; (4) the admission of defendant’s handwriting exemplars was neither error nor prejudicial.
Penal Code section 806 specifically authorizes complaints sworn to on the information and belief of the affiant. As a result, a practice has developed among California law enforcement officers of preparing and signing complaints on information and belief, and in so doing the officers on occasion merely employ the language of the criminal statute allegedly violated. This has been deemed appropriate under accepted interpretations of Penal Code sections 806, 813, and 952. No California ease has held to the contrary, although all three statutes have been in the code since its adoption in 1872.
Authorities relied upon by the majority are distinguishable. Giordenello v. United States (1958) 357 U.S. 480 [2 L.Ed.2d 1503; 78 S.Ct. 1245], involved the supervisory power of the federal courts in applying rule 4(a) of the Federal Rules of Criminal Procedure to federal prosecutions. Aguilar v. Texas [432](1964) 378 U.S. 108 [12 L.Ed.2d 123, 84 S.Ct 1509], considered the specificity requirements and legality of a warrant to search and not to arrest. To date no United States Supreme Court case has categorically rejected California’s statutory scheme of permitting a magistrate to exercise his judicial discretion to issue an arrest warrant upon a complaint sworn to on information and belief. In this state a judicial function, the magistrate’s discretion, is involved in issuance of the warrant of arrest; the complaint is merely an accusatory pleading and the beginning, not necessarily the end, of the magistrate’s inquiry. The process is seldom pro forma in practice. It is not uncommon for the magistrate to informally interrogate the complainant at length before issuance of the arrest warrant. He must be satisfied as to the sufficiency of the complainant’s information and belief before exercising his judicial authority (Pen. Code, §813). Since Barnes v. Texas (1965) 380 U.S. 253 [13 L.Ed.2d 818, 85 S.Ct. 942], is merely a per curiam opinion, it is not persuasive authority upon which to base categorical rejection of our generally accepted practice. Indeed, the majority concede in section II of their opinion that California’s statutory scheme authorizing the issuance of arrest warrants does not violate the Fourth Amendment. I agree generally with their rationale and completely with their conclusion. Since the officers and the magistrate complied with the statutes, the absence of constitutional infirmity in the process should compel us to conclude that the warrant issued here was valid.
Nevertheless, I would join the majority in a caveat to law enforcement agencies for the future. While a complaint may be sworn to on information and belief, it is preferable out of an excess of caution that the complaint briefly indicate the underlying circumstances — the factual information — upon which the belief is based that a violation of law occurred and that the person whose arrest is sought committed the crime.
Even if we were to agree argxiendo that the arrest warrant here was fatally defective, we would be obliged, under the authority of People v. Bilderbach (1965) 62 Cal.2d 757 [44 Cal.Rptr. 313, 401 P.2d 921], to exclude only that evidence obtained as the direct and proximate result of the illegal arrest. The test, devised in Wong Sun v. United States (1963) 371 U.S. 471, 488 [9 L.Ed.2d 441, 455, 83 S.Ct. 407], is “ 1 whether granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means [433]sufficiently distinguishable to be purged of the primary taint.’” (Italics added.)
Thus if the officers, using the faulty warrant, had seized existing objects from the person or immediate constructive possession of the defendant at the time of the arrest, as the contraband in Bilderbach, or had extracted a statement from him, as in Wong Sun, such objects or statement would necessarily be denied evidentiary consideration. That is not the case at bench. No evidence was taken here in “exploitation” of an illegal warrant.
Nevertheless the majority find “no basis upon which to conclude that the connection between the exemplars and the illegal arrest has ‘become so attenuated as to dissipate the taint’ ” and they further explain that by “attenuation” they mean “at least an intervening independent act by the defendant or a third party which breaks the causal chain linking the illegality and evidence.” They concede that consent by the defendant would provide such intervening act necessary to produce the requisite degree of attenuation.
Accepting the concession that freely given consent purges the taint of an allegedly unlawful arrest under Wong Sun, I find it difficult thereafter to follow the labyrinthine course to the majority’s conclusion, for no one has heretofore raised any serious issue of the defendant’s consent having been freely given.
The handwriting exemplars were obtained by officers during a process of interrogating the defendant in his office. The officers advised him of his constitutional rights as prescribed in 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],1 There can be no denial that [434]adequate Escobedo-Dorado admonitions were given and were directly related to the request for handwriting exemplars.2
After being given appropriate Escobedo-Dorado admonitions, and declining- a proffered opportunity to telephone his counsel, the defendant waived his rights and willingly submitted handwriting exemplars. Unquestionably the waiver was knowingly made; the defendant was not a naive victim of police imposition.3 This ease involves a knowledgeable defendant in the familiar, comfortable environment of his own business office; elements in the shrewdly devised plot were a $5,800 check, and elaborate efforts to enmesh an official of a banking institution in the check-passing fraud.
In giving Escobedo-Dorado warnings under these circumstances, the officers were more cautious and solicitous of defendant than current authority requires. This court held in People v. Graves (1966) 64 Cal.2d 208 [49 Cal.Rptr. 386, 411 P.2d 114], that such admonitions need not be given as a prerequisite to obtaining hand-writing exemplars. We reasoned (at p. 211) there is “no support in Escobedo for invoking the right to counsel to block scientific crime investigation. Reliance on handwriting exemplars for expert analysis is not a substitute for thorough scientific investigation of crime but an excellent example of such investigation. To preclude the police from asking for such exemplars would foster reliance instead on the very inquisitorial methods of law enforcement that Escobedo deems suspect.” (Fn. omitted.)
The Escobedo-Dorado admonitions, though not compulsory under the Graves doctrine, clearly provided that “intervening independent act” which the majority require to break the causal chain between the arrest they find invalid and the obtaining of the exemplars. Thus even under the formidable standards prescribed by the majority, the exemplars were admissible.
I would not have reached that point, however. Although generally the physical evidence seized pursuant to an arrest depends upon the legality of the arrest to justify its seizure, the taking of exemplars, fingerprints, blood samples, photographs, and similar devices receive their legitimacy [435]independently as part of approved scientific law enforcement investigatory processes (People v. Graves, supra, 64 Cal.2d 208, 211; 8 Wigmore on Evidence (McNaughton rev. 1961) §2265).
The prosecution met its burden of showing that the defendant freely gave the handwriting exemplars on both occasions. The police officers so testified. The record discloses no hint of conflict on the issue, for there is not one line of testimony suggesting an absence of consent. Thus the majority rely solely upon the time element, stressing that the first exemplars were given “shortly after the illegal arrest.” Whether the exemplars were given before, during or after arrest is wholly irrelevant, if not given in exploitation of an illegal arrest and if there was an independent intervening act between the purportedly illegal arrest and the writing of the exemplars. As I have shown, the Escobedo-Dorado admonitions were such independent intervention.
Finally, the majority opinion contains no supportable rationale whatever for excluding the second set of exemplars taken at a later time at the sheriff’s station, other than reference to the ‘ ‘ compulsion inherent in custodial surroundings. ’ ’ That issue was settled two years ago in Graves, where exemplars taken in the police department offices and again later while defendant was in custody were held admissible in evidence.
The admission of the handwriting exemplars was not error, and consequently not prejudicial. Therefore, I would affirm the judgment.
MeComb, J., and Burke, J., concurred.
Respondent’s petition for a rehearing was denied May 9, 1968. MeComb, J., Mosk, J., and Burke, J., were of the opinion that the petition should be granted.
This case came to trial on June 20, 1966, one week after the effective date of the rule in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. (See Johnson v. New Jersey (1966) 384 U.S. 719 [16 L.Ed.2d 882, 86 S.Ct. 1772].) However, at that time defendant and his counsel stipulated in open court that the cause be submitted on the testimony contained in the transcript of proceedings had at the preliminary hearing. The preliminary examination took place on January 28 and February 1, 1966, at which time Bseohedo-Dorado and not Miranda was the rule in effect. Had counsel later desired to invoke Miranda, he had two subsequent opportunities to seek relief from his stipulation: on June 20, 1966, the court continued the case to August 5, 1966, and on that date to August 15, 1966. On the latter date defendant was found guilty of count 3, and the remaining counts were ordered dismissed for insufficiency of the evidence.
See footnote 8, majoiity opinion, for the quotation from Deputy Sheriff Hargraves ’ testimony. In addition, at another point the officer testified, “I asked him if he wished to call an attorney, and he stated that he did not wish to do so at that time. ’ ’
Most familiar in this law enforcement field is the saga of the hapless wino who passes a rubber check to his friendly bartender in a neighborhood pub. This is clearly not such a case.