Appellant was convicted of aggravated assault by a jury in Superior Court, Pinal County, Arizona, on June 29, 1970. Under Arizona’s multiple offender statute, A.R.S. § 13-1650, he was sentenced to a term of not less than nine and not more than ten years in the Arizona State Prison. Appellant’s conviction was affirmed by the Arizona Supreme Court, State v. Sample, 107 Ariz. 407, 489 P.2d 44 (1971), and he appeals to this Court from a denial of his petition for a writ of habeas corpus by the United States District Court for the District of Arizona on February 14, 1972. Appellant raises four issues. The first concerns the admissibility of certain oral and written statements made by appellant to the arresting agents following his arrest. The second concerns the admissibility of certain objects taken from appellant’s home after that arrest. The remaining two involve appellant’s prior conviction in the Texas State Court. He urges that that conviction was unconstitutional because of lack of counsel at sentencing. Under these circumstances it is contended that the present sentence is constitutionally infirm and the threat *821of the use of the prior conviction for impeachment purposes was a denial of due process of law.
I
Following the death of his wife, appellant was arrested outside his home at 7:30 A.M. and taken to the police station. Appellant was informed of his constitutional rights as set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter the Chief of Police declined to take a statement from him at that time because appellant was nervous and upset. Nevertheless, the police did ask appellant what instrument he had used to strike his wife. Appellant responded and his answer was admitted into evidence at the trial.
At 2:00 P.M. the Justice of the Peace refused to arraign appellant, doubting appellant’s ability to comprehend the charges in view of his emotional state. Furthermore, the magistrate indicated that he would not arraign appellant until he had received the advice of court-appointed counsel. Defense counsel was then appointed, and appellant acquiesced in the appointment. Despite this, the police took a written statement from appellant shortly thereafter without the presence of counsel, and this written statement was also admitted into evidence.
Under Miranda it is clear that if an individual indicates his desire for counsel, all interrogation must cease until an attorney is present. Miranda v. Arizona, supra, at 474, 86 S.Ct. 1602. In this case the magistrate, with ample reason, felt appellant to be incapable of making this decision and determined himself 'that the presence of counsel was required. The evidence supporting the magistrate’s decision is clear and adequate, including the actions and observations of the Chief of Police. We therefore hold that the written statement which was elicited from appellant without the presence of counsel should not have been admitted in evidence, and that its admission constituted an infringement of appellant’s federally protected rights under the teaching of Miranda.
Appellee contends that in view of certain statements spontaneously uttered by appellant upon seeing the police for the first time, the admissibility of which is undisputed,1 such error as has occurred in the present ease is harmless error. Under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1966), before a constitutional error can be held harmless, the court must be convinced that it was harmless beyond a reasonable doubt. See also Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1968); Tafoya v. Eyman, 455 F.2d 1265 (9th Cir. 1972). Viewed in the setting of this case, we are not so convinced.
We need not reach the other errors alleged with respect to the admission in evidence of other of appellant’s statements. We do note, however, that once it has been determined that a person taken into custody is too upset to assert or waive his rights knowingly and intelligently under Miranda, all questioning should cease until such time as that person is clearly capable of so responding.
II
Appellant also contends that the admission in evidence over objection of certain objects seized from his home, after he had been taken to and detained at the police station, constituted a violation of his Fourteenth Amendment rights as established in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1960) and Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1913), and that the trial court’s admission of such evidence was constitutionally impermissible.
Appellee concedes and the record below clearly indicates that this was not a search incident to a lawful arrest, as *822set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and under the circumstances present, a search warrant was necessary. The search was not conducted contemporaneously with the arrest, thus distinguishing this case from Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1969), and there was no danger that evidence would be secreted or destroyed since the empty dwelling was being guarded by a policeman. The appellee having given no reason why a warrant could not be obtained, we find the failure to have done so constitutional error. Again, we are not convinced that the introduction at trial of the illegally seized items, which included a bloody bowl, a belt, a belt buckle, a broken bottle, sheets and pillowcases, and certain photographs, was harmless error under Chapman v. California, swpra.
Ill
Finally, appellant challenges his prior Texas conviction for murder as unconstitutional, due to his lack of counsel at the sentencing, which, it is contended, renders the present sentence under the multiple offenders statute constitutionally infirm, and the threat of use of the prior conviction for impeachment purposes, a denial of due process of law.
In view of our holdings, we need not reach these questions except to note that, while sentencing is a “critical stage” of the criminal process, as defined in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), requiring the presence of counsel, Rule 32(a)(1) of the Federal Rules of Criminal Procedure, and Martin v. United States, 182 F.2d 225 (5th Cir. 1950); McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844 (1953); Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L.Ed.2d 336 (1967), it is well settled that the underlying conviction stands, and appellant’s only remedy is resentencing, a course of action unnecessary under today’s holding. Walsh v. United States, 374 F.2d 421 (9th Cir. 1967).
Similarly, the issues raised by the use of a constitutionally infirm sentencing procedure for purposes of impeachment need not be reached here, though we suggest the trial court take note of the problem should it again arise.
For the foregoing reasons, the District Court’s order is reversed. Upon remand, the District Court will hold the appellant’s petition for habeas relief in abeyance for a reasonable period of time, not exceeding ninety days, in order to afford the Arizona authorities, should they so choose, to retry the .appellant without the introduction of the inadmissible evidence which has been discussed. If a retrial in the Arizona courts is not recommended within such prescribed period, then the District Court should grant the appellant’s petition for habeas relief. Reversed and remanded, with directions.
. Appellant stated, “My God, I killed my wife.’