WONG SUN v. UNITED STATES

I think that I can best be helpful to the Court at the outset by reviewing in a cursory way the factual background against which the legal issues holds here are raised.

The place in which the events germane here occurred was San Francisco.

The time was June 4, 1959 and the hour was 2 a.m.

At that time, a Chinese named Hom Way was arrested by federal narcotics officers and in his possession was found an ounce of heroin.

He was taken to federal narcotics headquarters in San Francisco and there began a systematic interrogation of Hom Way.

At 5:30 in the morning of the same day --

Justice Felix Frankfurter: What was the hour you said he was arrested?

Mr. Edward Bennett Williams: At 2 a.m.

Justice Felix Frankfurter: Which headquarters?

Mr. Edward Bennett Williams: He -- at -- he was taken forthwith to headquarters.

His arrest was made at 2 a.m. Mr. Justice Frankfurter.

Justice Felix Frankfurter: 2 a.m.

Mr. Edward Bennett Williams: And he was then interrogated.

And at 5:30 a.m., he identified the source of his heroin as being one “Blackie Toy” who operated a laundry on Leavenworth Street in the heart of Chinatown in San Francisco.

Justice John M. Harlan: Is he the gentleman whose name is on the papers?

Mr. Edward Bennett Williams: That is never cleared off by the record, Mr. Justice Harlan.

He was identified by Hom Way as the source of his heroin.

The name given was “Blackie Toy” and it was stated by Hom Way that he operated a laundry on Leavenworth Street and forthwith a posse was formed, a posse of seven agents from the Federal Narcotics Bureau who immediately went to Leavenworth Street in San Francisco.

And they stopped at a laundry known as “Oye's Laundry”, O-Y-E-S Laundry.

Now, Hom Way, if the Court please, had never before, as the record shows, given information to federal narcotics authorities and so his reliability was wholly untested.

The agents went to Leavenworth Street without a warrant, search or arrest.

One agent named Alton Wong, likewise a Chinese, went to the door of Oye's Laundry at 6:30 a.m.

Justice Potter Stewart: Was daylight, wasn't it?

Mr. Edward Bennett Williams: It was daylight as the record shows, yes sir.

The other agents lurked off on the sidelines at positions invisible to occupants of the laundry.

Alton Wong rang the bell and then he knocked on the door.

The occupant of Oye's Laundry came to the door.

He is petitioner James Wah Toy.

Petitioner James Wah Toy opened the door.

At this point, Agent Alton Wong said to him, “I have come for my laundry and dry cleaning.”

And petitioner James Wah Toy said, “The laundry doesn't open until 8 a.m.”

He undertook to close the door whereupon Agent Wong took out his badge of authority and said, “I am a federal narcotics officer.”

Justice Potter Stewart: Mr. Williams, I think the chronology there, in my point of view if you please, there might be of some importance.

You said that he undertook to close the door?

Mr. Edward Bennett Williams: Yes, sir.

Justice Potter Stewart: Before Agent Wong told him he was a federal narcotics agent?

Mr. Edward Bennett Williams: I believe that --

Justice Potter Stewart: When does the -- can you refer us to the --

Mr. Edward Bennett Williams: I -- the record is not completely consistent on that Mr. Justice Stewart.

But the fact of the matter is that it is clear that petitioner James Wah Toy regarded the incident as closed that the time he told him that the laundry did not open until 8 a.m.

And it was at that juncture that Agent Wong flashed the badge of authority and petitioner James Wah Toy slammed the door closed.

At this point, the record shows giving it the most favorable inference to the Government that petitioner Toy ran back through the laundry to his living quarters, which were in the back of the laundry where he occupied rooms with his wife and child.

The agent at this point broke open the door, breaking the lock on the door, hurried to the laundry, into the living quarters of petitioner Toy, into the room where his wife and child were in bed.

And at this juncture, James Wah Toy reached to open the drawer of a night table whereupon the agent pulled his gun, his handcuffs and placed the petitioner under arrest.

Now at this juncture, none of the other agents was present in the laundry.

They, thereafter, came into the laundry and the search was made of the laundry.

And the search was fruitless.

Nothing was found of interest to the narcotics agents.

Now at this juncture, I think I should also point out if the Court please, that petitioner Toy at the time that he opened the door and at no time thereafter insofar as this whole record shows was the “Blackie Toy” referred to by Hom Way because Hom Way's role is completed.

And we never hear again of Hom Way in this whole case.

He didn't testify at trial.

We hear his name not once more in the whole record.

And there's no showing that the agent who rang the bell, who knocked on the door had even been given the information that Hom Way had identified “Blackie Toy” as the source of his heroin.

And of course, there is no equation of “Blackie Toy” with James Wah Toy in this whole record.

When the agents began interrogation of James Wah Toy, the petitioner, in his bedroom, he was told that Hom Way had identified him as the source of one ounce of heroin.

He immediately denied his guilt and responded, “But I can tell you where there are some narcotics.”

They showed interest, the agent showed interest when he said, “I know a man named Johnny who has narcotics in his room.”

And he told the agents where Johnny lived.

And he told the agents precisely where the room in the house was which Johnny occupied.

And the agents immediately went to the place indicated by petitioner Toy where they arrested one Johnny Yee.

Johnny Yee, as the record shows, immediately surrendered about an ounce of heroin.

And he was interrogated.

This was at 8 a.m. of the same morning.

And he was asked with respect to the source of the heroin found in his possession.

And he said, “I've got this heroin from Toy”, petitioner Toy.

“And one known to me only as “Sea Dog.”

Unknown Speaker: Who?

Mr. Edward Bennett Williams: “Sea Dog.”

They asked him who's --

Justice Felix Frankfurter: That's an English name?

Mr. Edward Bennett Williams: It's an English name, yes sir.

That's an Anglo-Saxon version of a Chinese name as it turns out, Mr. Justice Frankfurter.

He was asked who “Sea Dog” was and he said he knew him by no other name.

And so the agents then went back to headquarters and they asked petitioner Toy if he knew a man named “Sea Dog.”

He said, “Yes, I know a man named “Sea Dog.

His -- his real name is Wong Sun.”

And so with that, the agents went off with petitioner Toy to Franklin Street in San Francisco to make the arrest of Wong Sun.

All of these arrests of course being accomplished without warrants of arrest and without search warrants.

They went to the home on Franklin Street, indicated by petitioner Toy.

They made entry.

They went to the bedroom of Wong Sun.

They found him sleeping.

They arrested him.

They searched and again the search was fruitless.

Now, if the Court please, petitioner Toy and Wong Sun were indicted.

They were indicted in two counts.

They were indicted first for a conspiracy to violate Title 21 of the United States Code Section 174, which is a statute which makes it a felony to transport or conceal narcotics or to facilitate the transportation or concealment of narcotics knowing the same to have been illegally imported.

And they were likewise indicted for the substantive violation of the same statute.

They came on for trial --

Chief Justice Earl Warren: May I ask, what became of Johnny Yee?

Mr. Edward Bennett Williams: The record --

Chief Justice Earl Warren: Was he indicted?

Mr. Edward Bennett Williams: The record shows Your Honor that Johnny Yee was indicted in another case and pleaded guilty.

And the Government undertook to use Johnny Yee as a witness in this case at trial.

The case came on before a judge without a jury and Johnny Yee was called as the Government's prime witness.

It was obviously the intention of the prosecutors can be gleaned from this record to prove his case by calling Johnny Yee who was going to give evidence so the prosecutor thought against these petitioners and then he went off for the narcotics inquisition and had his prima facie case.

However, Johnny Yee proved to be a recalcitrant witness.

In fact, he stated that a statement that he had therefore given was entirely false.

And he did not testify against Wong Sun or of petitioner Toy in any respect material to the indictment which was brought against him.

And so he was dismissed.

And so the prosecutor then had to take another course in proving this case.

So he undertook to prove his case this way.

He put in the arrest of petitioner Toy at his home, combination of laundry and home.

He showed the purportedly exculpatory statement that petitioner Toy made at the time of the arrest, “I have no narcotics but I can tell you where you can find some.”

Then he showed the arrest of Johnny Yee and he offered physically into evidence the narcotics which were taken at Johnny Yee's home.

And then, he offered in evidence two statements given by these petitioners subsequent to their arrest, one statement by petitioner Toy which was begun on June 5 the day after his arrest and completed on June 9, another statement which was made by Wong Sun which was given on June 9, both of which contained incriminatory admissions.

The record, if the Court please, is totally silent with respect to any arraignment procedure with respect to the two petitioners in this case.

Now, the trial judge after admitting all of this evidence over the timely and appropriate objections of trial counsel announced that he -- it was his inclination to find these petitioners guilty under the first count which was the conspiracy count and to find them not guilty on the substantive count.

But Government counsel quickly pointed out to the trial judge that the Government would feel more sanguine about its record on appeal if he inverted his verdict and found the petitioners not guilty on the conspiracy count and guilty on the substantive count and the trial judge deferred to the Government's wishes in this respect and entered a verdict of not guilty on the conspiracy count and guilty on the substantive count.

Justice Potter Stewart: Now, what was the substantive count again?

Mr. Edward Bennett Williams: The substantive count Your Honor was a violation of 21 U.S.C. 174 which is the concealment or transportation of a narcotic knowing the same to have been illegally imported.

Justice Potter Stewart: Well now then, this was concealment of or some connection with the concealment of the heroin taken from Johnny Yee?

That's the only narcotics as I understand --

Mr. Edward Bennett Williams: The only narcotic in evidence.

Justice Potter Stewart: In evidence?

Mr. Edward Bennett Williams: Yes, sir.

Justice Potter Stewart: So its relation to the --

Mr. Edward Bennett Williams: Yes, sir.

Justice Potter Stewart: That which proceeds from Johnny Yee?

Mr. Edward Bennett Williams: Yes, sir.

Justice Potter Stewart: They were convicted then of what?

Concealment or otherwise, is that --

Mr. Edward Bennett Williams: They were convicted of the substantive offense of concealing and/or transporting or facilitating one or either with knowledge that the heroin was illegally imported.

Justice Felix Frankfurter: Were these -- were they jointly charged in a single -- in account or --

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: -- jointly charged --

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: That was presumably as joint principles?

Mr. Edward Bennett Williams: Yes, sir.

They were charged jointly both in the conspiracy and substantive counts.

Now, if the Court please, since -- it was imposed and they appealed to the Ninth Circuit.

The Ninth Circuit unanimously found that the arrests of both petitioners were unlawful.

But two of the judges refused to attach any evidentiary consequence to these unlawful arrests.

One judge dissenting from the majority felt that the evidence gained as a result of the unlawful arrests should have been excluded and that therefore the convictions should have been reversed.

Now, the Government in this Court undertakes to go behind the finding, the unanimous finding of the Ninth Circuit.

And it seeks to have this Court validate those arrests and therefore obviate the necessity for deciding the evidentiary question.

The Government devotes a great portion of its brief to arguing that the arrests of both Toy and Wong Sun were lawful and so to say that that is the end of the matter and there's no need to touch the evidentiary questions.

And therefore it becomes necessary to discuss these arrests.

I think that the Government's attempt to validate these arrests is a very dramatic attempt at bootstrap levitation because the Government in its brief practically concedes that at the time that the agents went to petitioner Toy's premises, they had no probable cause for arresting him.

The Government doesn't argue that at the time they went to his premises at 6:30 in the morning on June 4 that they then and there had probable cause to arrest him.

They argued that the events which took place at the premises provide the link necessary to support a finding of probable cause.

They say that from the fact that the agents went there that one of them knocked on the door of petitioner Toy at 6:30 in the morning that thereafter when he attempted to deceive petitioner Toy as to his purpose for being there and that thereafter went petitioner Toy closed the door and left that his hurried departure constituted sufficient to warrant probable cause for his arrest at that juncture.

I think it's significant to note at this point that at the trial, petitioner Toy's use of the English language was so circumscribed that it was necessary to use an interpreter for him at trial.

But the Government would argue --

Justice Potter Stewart: This was Toy?

Mr. Edward Bennett Williams: Yes, sir.

The Government --

Justice Potter Stewart: Let see if I get this.

This is based on the fact that he shut the door in Agent Wong's faces and ran back to the living quarters?

Mr. Edward Bennett Williams: The Government argues that at the time that he ran that there then arose a probable cause for his arrest.

Justice Potter Stewart: Well, that doesn't -- excuse me.

I didn't -- I beg your pardon, I have interrupted you.

But doesn't the argue -- that the Government's arguments depend upon its reading the evidence as showing that he didn't run until the agent identified himself as an agent that so long as they were just talking about when the laundry was going to open, he stood there first and perhaps not very happily because he'd been waken up but (Voice overlap)?

Mr. Edward Bennett Williams: The Government arg -- the Government's argue -- argument certainly hinges on the fact that the departure was caused by his identification as a narcotics agent.

Justice Potter Stewart: And that it didn't happen until he had identified --

Mr. Edward Bennett Williams: Yes sir.

Justice Potter Stewart: -- himself as an agent?

Mr. Edward Bennett Williams: That's right sir.

That's true.

Now, of course, what the Government is in effect arguing here is that the erratic or emotional behavior of a victim of an unlawfully intrusion or an invasion of rights supplies a missing link that was otherwise not present at the time that the invasion of the rights took place.

In other words, the Government is arguing that by virtue of the fact that this man reacted first to the gover -- to the agent's attempt to deceive him and then to his subsequent state with that he was a narcotics agent, the fact that he reacted at 6:30 in the morning and hurried back to his living room gives probable cause for his arrest where it theretofore did not exist.

I think it's most significant however, to look at what the agent who made the arrest says about the arrest because certainly what he says is a basis for influence that he did not regard that he had a probable cause for arresting Toy until such time as Toy reached for the drawer of his night table inside of his bedroom.

At page 53 of the record, I call the Court's attention to this colloquy, first at the top of the page, “Do you recall breaking the lock or breaking the door in anyway?”

He says, “I did not break the door, sir.

However, it was necessary for Government counsel to stipulate at the trial that the door was broken and that the lock was broken.”

Justice Potter Stewart: Well, he said, “I was only using the force necessary to open the door.”

Mr. Edward Bennett Williams: Yes, but the Government stipulated, Your Honor, that the lock was broken and then it was broken at the time that he went.

Thereafter, the question was propounded, “You chased him down the hallway into his bedroom?”

“Yes sir.”

“Put handcuffs on him and placed him under arrest, is that right?”

“Not until he put his hand into the nightstand drawer.”

“Then you put the handcuffs on him and placed him under arrest and had drawn your pistol just before that, is that right?”

“I had drawn a pistol because he reached into the drawer.

I didn't know what he had.”

Now, if the Court please, over and above that there was clearly a violation here of Section 3109 of Title 18 which makes it a requirement for federal officers before they break a door to announce the nature of their authority and the purpose of their visit.

Not only did the officer who made the arrest here not announced the purpose of his visit, the purpose of his presence there before he broke the door but he actively attempted to deceive a man whom he did not know to be the “Blackie Toy” for whom he was looking, a man who's identity he did not know, he not only didn't comport with the statute but he specifically and directly violated the statute by attempting to perpetrate a ruse on the occupant of the premises when the door was opened at 6:30 in the morning.

And I suggest to the Court that certainly this case falls within the purview of Miller against the United States decided in 1957 by this Court, wherein an arrest was invalidated because of failure to comply with the statutory requirements imposed upon federal officers before breaking doors and entering.

Again, I suggest to the Court that if ever there was a case which required the procuring of an arrest warrant before an arrest was attempted this is it, no reason is advanced why those agents after they listened to the tale of Hom Way did not take him to a commissioner of the City of San Francisco, have him swear to the State in which he had made to the officers, get an arrest warrant and go to the premises in question in de facto an arrest with a warrant on --

Justice Felix Frankfurter: That argument was within --

Mr. Edward Bennett Williams: -- Toy --

Justice Felix Frankfurter: This alternative argument in count of -- if I understand that neither decision of this Court, the mere fact that there was an ample opportunity to get a warrant wasn't preclude probable cause arising, the existence of -- the nonexistence of (Inaudible).

Mr. Edward Bennett Williams: But I think it also falls, Your Honor, within the language of this --

Justice Felix Frankfurter: I'm not sympathetic to that view, but that's of the decisions of this Court.

Mr. Edward Bennett Williams: I think it falls within the language, Your Honor, of this Court.

In fact of an opinion on which Your Honor wrote the majority opinion for this Court, Jones against the United States wherein you articulated the premise for the majority that simply because an arrest would have been lawful had a warrant been procured and the facts were such that a warrant could have been procured does not validate that same arrest when it is made without a warrant.

Otherwise --

Justice Felix Frankfurter: (Inaudible) been found.

Mr. Edward Bennett Williams: Otherwise Rule 4 for his meaningless and has no purpose in the statutory law of the United States if the police can arrest every time without a warrant wherein they could arrest if they had taken the time to procure a warrant under factual situations where they could get one.

Justice Felix Frankfurter: The consequences you draw have not found -- fair with the Court.

Mr. Edward Bennett Williams: I unders --

Justice Felix Frankfurter: I don't -- I'm so sympathetic that if you want to take time to argue, I'm not going to stop you.

Mr. Edward Bennett Williams: I feel -- if the Court please, that if that statutory requirement has any meaning, if it has application to any case, certainly, it most have application in the case at bar because no reason can be advanced for not getting an arrest warrant.

Here is the classic case for the submission of facts to a judicial or quasi-judicial officer who is a buffer between the citizen and the police.

Justice Felix Frankfurter: I should think that we have even more -- it would be more -- if we had more classifications, where months had elapsed of observation and no warrant was afforded.

Mr. Edward Bennett Williams: Yes, sir.

Now in this case, the arrest of Wong Sun was accomplished in the same way.

Wong Sun, if the Court please, was arrested upon the statement of Johnny Yee, so far as the record goes, Johnny Yee was theretofore had known by the police.

Justice John M. Harlan: Could I ask you a question --

Mr. Edward Bennett Williams: Yes, sir.

Justice John M. Harlan: -- before you leave the other gentleman Mr. Toy.

You don't refer at all to the impact whether the word of Wei Hom's original information upon the character or the acts of this defendant when they've hurried to pursue him down the hall, weren't the agents entitled to take that into account in assessing the -- for drawing inferences on what is quite meant?

Mr. Edward Bennett Williams: Well, I think that is quite -- must be putted in its frame of reference and the frame of reference embraced in these facts we're dealing, number one, with a man who finds a stranger at his door at 6:30 in the morning who says he wants his laundry.

We're dealing secondly with a man whose illiteracy is demonstrated by the record here and whose fluency with the English language is so meager that it was necessary to employ an interpreter before him at the trial.

Thirdly, we're dealing with this situation that a badge is flashed upon him by a man theretofore unknown to him who has said that he was there for his laundry at 6:30 in the morning.

Then the door was shut giving the Government the most favorable inference to be drawn from the record and giving it again the most favorable inference to be drawn from the record, he hurries back to his living quarters where his wife and child are sleeping.

Now, the Government would contend that his hurrying back from the door adds what is necessary to supply probable cause.

But they overlooked completely the fact, if the Court please, that never at any time is the man who answered the door equated with “Blackie Toy” who was named by Hom Way, never at anytime is this laundry equated with the laundry referred to by Hom Way.

In fact, the record shows that this was not Blackie Toy's restaurant or so designated, it was Oye's Restaurant in the heart of China Town were presumably there are many Chinese laundries on a long street in the City of San Francisco, Leavenworth Street.

This happened to be 1733 Leavenworth Street as the record shows.

So I say that it is bootstrap levitation because they are engaging in a wholly gratuities assumption that the man who answered the door against whom they attempted to perpetrate a ruse was one and the same man who was referred to by Hom Way and we do not have the benefit at any point in this record of Hom Way's testimony because he is -- completely disappears once reference is made to him by the narcotics agents.

Justice John M. Harlan: The address of this laundry was not -- that cannot be tied up to the restaurant which Hom Way gave?

Mr. Edward Bennett Williams: No, sir.

It's the same street.

But this is a long street in Chinatown.

And the record shows that this particular number was 1733 of that street.

And there is no tie up here, Your Honor.

There's no showing that we're dealing with one and the same person.

Now, the Government engages, if the Court please, in an even more specious argument in an effort to support the arrest of Wong Sun because they say, “True, we have the word of an untested informant here but this is different from Toy's arrest because we have two informants with respect to Wong Sun.”

Now, who were those two informants?

One of them is Johnny Yee.

Johnny Yee said at the time of his arrest, “I secured the narcotics from a fellow known as “Sea Dog.”

Then they go back to headquarters and they asked Toy, “Do you know a man named “Sea Dog”?”

And he said, “Yes, I know Wong Sun.”

“Do you know where he lives?”

“Yes, he lives in Franklin Street.”

“Will you take us to him?”

“Yes.”

And so they go to him.

They roused him out of bed and arrested him, searched his premises, find nothing and the Government says, “This arrest was alright because they had two informants.”

They had one man who has said "Sea Dog" sold the narcotics and they had another man who said “Sea Dog” was Wong Sun.

Justice Felix Frankfurter: Does that make not two?

Mr. Edward Bennett Williams: It makes two, Your -- it makes two, Your Honor.

And again I say this is of -- this is an argument from bootstrap because one merely identifies as Your Honor readily observes the person known as “Sea Dog” who was -- whose real name was unknown to Johnny Yee.

Petitioner Toy never said Your Honor that Wong Sun was the source of any heroin or narcotics.

But he was only asked who “Sea Dog” was so there's really only one witness here which the Government attempts to argue is a basis for a lawful arrest because the testimony is in two parts.

Now, for these reasons, it is our contention that the arrest was unlawful.

And it's further our contention that this arrest constituted the violation of the petitioner's rights under the Fourth Amendment because the Fourth Amendment protects persons as well as things from unreasonable seizures.

And it's our contention that this arrest violated the Fourth Amendment and that this Court has so stated in both Giordenello case in 1959 and in the Hendricks case in 1960.

Now, since 1914, this Court has attached a very significant evidentiary cons -- consequence to the seizure of physical evidence during an unlawful search.

It has struck down that evidence as inadmissible as being the result of unlawful police action.

Now, I think that the basic reason behind the federal exclusionary rule, the basic reason for which it was adopted was to discourage and deter lawless law enforcement because we recoil at the concept of the -- in justifying the means and the administration of criminal justice.

And I suppose that the communist form of that thinking is to forget what we're trying to do sometimes.

What we're trying to do by the federal exclusionary rule is to strike down lawless law enforcement illegal police action.

Now, if the federal exclusionary rule isn't accomplished in that purpose, if it doesn't accomplish that purpose then we're paying too high a price for it when we reverse convictions that would otherwise have stood.

Now, if benefits are allowed to the police when they violate the legal and constitutional rights of the citizenry, we cannot expect that lawless law enforcement will cease because it's elementary that there's no penalty, there's no sanction that's impose upon the policeman for breaking the law in this area.

The only thing the court's can do is to make it unprofitable for them to do this.

And the only way that the court's can make it unprofitable for the policeman to do this is to strike down both the indirect and the derivative benefits that flow from invasion of constitutional rights and from the invasion of the lawful rights of the citizenry.

Justice Felix Frankfurter: But there's no disagreement within the court on the general proposition that you've just announced as the disagreement as to what scope and the region of the Fourth Amendment.

Mr. Edward Bennett Williams: Yes, sir.

Now --

Justice Felix Frankfurter: And that turn greatly on -- as I see it, on one's view of the historical compulsions of that amendment?

Mr. Edward Bennett Williams: Yes, sir.

But if we take an inconsistent position and we allow verbal evidence which is secured as the result of an unlawful arrest --

Justice Potter Stewart: I don't quite see how this verbal evidence was secured as the result of unlawful arrest if this was verbal evidence which was volunteered.

Mr. Edward Bennett Williams: Yes, sir.

Justice Potter Stewart: It didn't result from the legality of the arrest, that's the part I -- that's the step I can't seem to take into --

Mr. Edward Bennett Williams: Well, Your Honor, this Court has articulated over the past 16 years in the line of cases that we referred to as the McNabb, Upshaw Mallory line of cases.

The fact that notwithstanding a confession maybe voluntarily made if it is caused by illegal federal police action --

Justice Potter Stewart: Well, the Mallory --

Mr. Edward Bennett Williams: -- it is inadmissible.

Justice Potter Stewart: Mallory-McNabb --

Mr. Edward Bennett Williams: So that --

Justice Potter Stewart: -- it made during any period of guilty plea.

Mr. Edward Bennett Williams: Yes, so that notwithstanding there may be a free exercise of the volitional facet of the arrested party's mind.

That is struck down.

Now, the Government would argue that because Toy didn't have to speak because he spoke freely that the evidence should go in, when I say this is at war with the whole line of cases wherein this Court has struck down voluntarily made statements because the police violated the statutory right.

Then I say the reason has far more force and cogency when you have the violation of the constitutional right as you have here.

And that's what we have here, the violation of a constitutional right and a statement made by petitioner Toy at the threshold of his detention.

And of course, we must recognize that the McNabb, Upshaw and Mallory cases have created a pressure on the federal police to get threshold confessions on the premise that confessions obtained thereafter maybe inadmissible because of the statutory breach.

Justice John M. Harlan: You don't rely on the fruit's doctrine and of the --

Mr. Edward Bennett Williams: I do rely on the fruit's doctrine, yes, sir.

Unknown Speaker: Yes.

Justice John M. Harlan: (Inaudible)

Mr. Edward Bennett Williams: Yes, sir.

Yes sir.

I do rely on the fruit's doctrine.

Justice William J. Brennan: You mean that's basically what you rely on.

Mr. Edward Bennett Williams: Yes, sir.

Justice John M. Harlan: Well, I got thrown off by your reference to McNabb.

Mr. Edward Bennett Williams: Well --

Justice John M. Harlan: I thought fruit's doctrine --

Mr. Edward Bennett Williams: I referred to the --

Justice John M. Harlan: -- is something different from the McNabb line --

Mr. Edward Bennett Williams: -- McNabb-Mallory line of cases in this frame Mr. Justice Harlan that the argument that voluntariness of the victim necessarily -- it breaks the causal niche of police illegality doesn't hold because this Court has given birth to a line of cases where the voluntariness of the victim in the phase of the violation of his legal rights has not caused him to forfeit his legal position because Government argues in its brief that the fact that Toy didn't have to speak, the fact that he could've remained silent and that he chose to speak and exculpate himself in the phase of this arrest breaks the chain of causality between the illegal action of the police and the evidence which is sought to be admitted and that can't be squared with McNabb, Upshaw, Mallory line of cases.

But I do rely on the fruit doctrine, Mr. Justice Harlan because as a result of the Nardone cases, the federal courts throughout the land have taken the position that evidence which is secured as the result of wiretaps may not offered in a federal courtroom so that if police tap my wire and hear my discussion with X.

And as a result of hearing my discussion with X, they learnt the identity of Y and they therefore find that Y is a witness who can give evidence against me.

They have no other source of -- to Y except the wiretap, the Court's have consistently struck down the testimony of Y as being the fruit of the poisonous tree notwithstanding Mr. Justice Stewart that Y voluntarily agrees to testify after he is found.

Justice John M. Harlan: Well, the thing that confuses me is I don't understand what McNabb and Mallory got to do with your argument.

I understand that he -- I understand the fruit's doctrine alright, and I would suppose that was the essence of your argument.

Mr. Edward Bennett Williams: Has this to do with my argument that I think it completely again says what the Government says in its brief and what I assume it will argue in this Court that the voluntariness of a victim's action necessarily breaks the chain of causality between the Government's illegal action and the statement that he makes because in all the McNabb line of cases, the statement is voluntary yet it's inadmissible.

Justice John M. Harlan: Well, if McNabb and Mallory is simply a prophylactic rule that the courts laid down under its supervisory powers and you're saying that that should be extended to this kind of a case, is that what you're saying?

Mr. Edward Bennett Williams: I'm saying that the same philosophical rationale applies here.

The reason as I understand the Mallory line of cases is to discourage the police from illegally detaining the arrested victims and --

Justice John M. Harlan: Now, I understand you.

Mr. Edward Bennett Williams: Yes, sir.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript:

Argument of Edward Bennett Williams

Chief Justice Earl Warren: -- Wong Sun and James Wah Toy, Petitioners, versus United States.

Mr. Williams, you may continue your argument.

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

When the Court recessed on last Thursday, we were discussing the evidentiary consequences of the unlawful arrest of petitioner, Toy.

Specifically, we were discussing the admissibility of the oral statement which he made immediately after his arrest in his home.

That statement, you will recall, was a denial of the fact that he had sold narcotics to one Hom Way, and a further statement to the narcotics officers that he knew were there was some heroin namely in the home of one Johnny, whom we later learned to be a Johnny Yee.

It is our contention if the Court please, that since the arrest of petitioner Toy was unlawful, his detention was unlawful ab initio.

And since his detention was unlawful ab initio, the statement which was offered against him at his trial was a statement made during his unlawful detention.

This Court, in a line of cases since 1943, has held that statements made by an accused during a period of unlawful detention are inadmissible against him by reason of the fact that they were obtained in violation of a statutory right.

It is our contention if the Court please, that a fortiori statements made during a period of illegal detention brought about by a violation of his constitutional rights should be rendered inadmissible by this Court.

Now, just as physical, tangible and visible evidence seized in violation of the Fourth Amendment had been held to be inadmissible by the Court so too unequivocally, this Court held last year in the case of Silverman against the United States that verbal, oral evidence is likewise protected within the Fourth Amendment.

And if this evidence has seized in violation of the defendant's Fourth Amendment rights, it is likewise excludable.

Now, our research, if the Court please, has found only two cases in all of federal jury's prudence that are apposite to the case at bar, none from this Court.

In 1940, the United States Court of Appeals for the District of Columbia Circuit had before in a case on all force with this.

The decision was written by Judge Vinson for unanimous court including Chief Judge Groner and Judge Edgerton.

The facts were these.

A taxi cab at 1 o'clock in the morning struck a parked car.

The taxi cab was abandoned by its driver.

The police came on the scene.

They found the registration in the taxi cab, and they went to the home of the appellant.

They made an unlawful entry into his home.

They went to the second floor, they found him.

And he immediately admitted that he had been driving the car which was involved in the accident.

The question before the Appeals' Court was whether that statement, that oral statement made as the result of an unlawful entry might be admitted against him in his trial for drunk and driving.

And the Court of Appeals unanimously held that the protection of the Fourth Amendment and the exclusionary rule, which came into being in 1914 in the Weeks case, rendered that oral statement inadmissible against him and struck down the evidence as having been obtained through the violation of the Fourth Amendment.

Again, in a case exactly in point with the case at --

Justice Potter Stewart: Before you --

Mr. Edward Bennett Williams: -- bar --

Justice Potter Stewart: -- before you leave that first case Mr. Williams, as you explain it to us, it strikes me that that case involved these overtones of the Fifth Amendment as well as the Fourth Amendment which makes it, in some ways unlike the case now before us, doesn't it, where here, we're not talking about self-incriminatory statements so much as statements by one person allegedly wrongly arrested which incriminated another person?

Mr. Edward Bennett Williams: It turned out if the Court please that in this case, of course, that statement made by the petitioner was used as one of the most cogent pieces of incriminatory evidence against Toy because that is the precise statement upon which the Government relies as corroborative of a subsequent alleged confession.

So I feel if the Court please that that was, as used by the Government, an incriminatory statement within the purview of the Fifth as well as the Fourth Amendment.

Unknown Speaker: Self-incrimination?

Mr. Edward Bennett Williams: Yes, sir.

Because of the use to which it was put by the Government at his trial and the use to which it's put before this Court what it's argued by the Government that it is corroborative, corroborative evidence of a subsequent confession.

Now, the case of Somer against the United States is even closer.

That case was decided in 1943 by the Court of Appeals for the Second Circuit.

Judge Learned Hand wrote for unanimous court.

The facts were these.

Agents of the Alcoholic Tax Unit entered the apartment of one Somer in Brooklyn, New York.

They found there his wife and they found a steel in operation.

His wife said to the officers who arrested her that her husband would be home in 20 minutes.

And so they went downstairs and stood in front of the building and awaited the return of appellant Somer.

Somer came along in his car 20 minutes later, and there was whiskey in the backseat.

He was arrested and the whiskey was seized.

He went to trial.

A motion was filed to suppress the evidence.

The Trial Judge did in fact suppress the evidence found in the apartment on the ground that it was gained as a result of an unlawful entry and unlawful arrest.

But the trial court refused to suppress the evidence found outside in the automobile of -- of appellant Somer.

When the case went to the Second Circuit, Judge Hand writing for unanimous court found that if the police had gone down to the front of the house and waited for Somer because of the information which they received from Mrs. Somer resulting from their unlawful entry that it could not be admitted against the appellant Somer.

And it sent the case back to the lower court for determination as to whether that was the sole motivating force which impelled the police to go downstairs and wait for his return.

Justice Felix Frankfurter: Mr. Williams, does your argument means that whatever is said concededly voluntarily acceptance so far as police arresting itself implies the purse of power.

But the whole argument is on the assumption that but for the so-called “poisonous tree” this was a voluntary statement, was it not?

Mr. Edward Bennett Williams: I feel --

Justice Felix Frankfurter: I think that's far.

Mr. Edward Bennett Williams: I feel, if the Court please, that on this record, there is causal relationship between the unlawful entry and the statement.

Justice Felix Frankfurter: I understand that but forget that.

The statement as such you're not attacking at being coerced.

Mr. Edward Bennett Williams: I am not attacking as its being coerced expect insofar as an unlawful arrest as elements of coercion in it.

Justice Felix Frankfurter: Well, can't we agree either this is a coerced -- to me, they're two different documents namely, a coerced confession stands on inadmissibility on the ground that this it was coerced.

Your point is this is to be excluded because the police sought not to be allowed to profit by illegal conduct.

Mr. Edward Bennett Williams: That's true.

Justice Felix Frankfurter: Much illegality to exercise a force but illegal conduct in an improper arrest, is that right?

Mr. Edward Bennett Williams: That is true Your Honor but --

Justice Felix Frankfurter: Now, therefore I want to ask --

Mr. Edward Bennett Williams: I --

Justice Felix Frankfurter: I understand what you add.

But that's a different argument.

I don't like to mix -- one does mix his drink, I don't like to do it myself.

Mr. Edward Bennett Williams: I of course, have to say --

Justice Felix Frankfurter: But which is which?

Which are you standing on?

If you say it's coerced -- if you say that every arrest necessarily implies coercion, I can understand that too, but I'd like to know what your argument is?

Mr. Edward Bennett Williams: I say two things Mr. Justice Frankfurter.

Number one, that the police should not profit from their own wrongdoing --

Justice Felix Frankfurter: (Voice Overlap)

Mr. Edward Bennett Williams: -- the -- and this would be profiting from their own wrongdoing because it is caused by an illegal arrest.

I say secondly --

Justice Felix Frankfurter: Now, wait a minute, are you --- is that -- is that a period?Is that at that end of the sentence?

Mr. Edward Bennett Williams: It is --

Justice Felix Frankfurter: That's a separate argument.

Mr. Edward Bennett Williams: It's the end of the sentence but it's not the end of my thought, sir.

Justice Felix Frankfurter: No, but that's an argument by itself or isn't?

Mr. Edward Bennett Williams: It's an argument by itself but I rely upon an additional argument, sir because I will not waive the fact that in arrest has elements of coercion when the arrest is unlawfully made.

Justice Felix Frankfurter: Well, can I then address myself to the first part of your argument?

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: What happened to your thought?

Or do I go into the second half if I ask you, are you arguing that whenever there is an illegal arrest, no matter how otherwise voluntarily the utterance of the arrested person maybe but he says it cannot be admitted into evidence.

Mr. Edward Bennett Williams: I am saying exactly that Mr --

Justice Felix Frankfurter: Alright.

Mr. Edward Bennett Williams: -- Justice Frankfurter unless the effect of the involuntarily arrest is terminated in one of three ways that occurred to me, by his arraignment, by representation of counsel or by his release.

Justice Felix Frankfurter: You mean their statements come afterwards but if the statements -- I'm not combating you.

I'm not --

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: -- disagreeing with you.

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: I'm trying to find out --

Mr. Edward Bennett Williams: I understand, sir.

Justice Felix Frankfurter: -- with greater clarity than I best so far as ascertain what is in your mind?

That's all I'm trying to do.

Mr. Edward Bennett Williams: If --

Justice Felix Frankfurter: And I want to know my -- I don't care about yes or no answers usually.

But I think this is susceptible of an answer.

Is your position that anything said by an arrested person, no matter how otherwise it would be deemed to have been voluntary, it made during the course of the illegal arrest is to be excluded?

Mr. Edward Bennett Williams: Yes, sir.

Justice Felix Frankfurter: Alright, now I understand it.

Mr. Edward Bennett Williams: Yes, sir.

Chief Justice Earl Warren: Do we have to go that far in this case?

Mr. Edward Bennett Williams: We don't have to go that far in this case.

Chief Justice Earl Warren: Isn't this the arrest that came at 6:30 in the morning?

Mr. Edward Bennett Williams: Yes, sir.

Chief Justice Earl Warren: When the -- when the man closed the door and then went back to the room where his wife and baby were in -- in bed and where the police came in and drew a revolver on him and put him under arrest?

Mr. Edward Bennett Williams: Yes, sir.

Chief Justice Earl Warren: It might be an element of coercion there.

Mr. Edward Bennett Williams: That's why I haven't abandoned that Mr. Chief Justice.

I haven't abandoned that argument.

I feel very strongly that that is another element which must be considered as a factor in determining whether this statement should be excluded.

But I do say to Mr. Justice Frankfurter's question, yes, sir that is my position.

Justice Felix Frankfurter: I understand.

Mr. Edward Bennett Williams: That if it is made during illegal detention, it goes out on the same rational as it went out under the edict of this Court in the Mallory case.

Justice Felix Frankfurter: On -- and that -- on that attitude, on that view, it doesn't make any difference whether the wife and the child were present.

Mr. Edward Bennett Williams: I think it doesn't make any difference too as far as --

Justice Felix Frankfurter: On that view, it may -- it maybe an ingredient in determining coercion.

Mr. Edward Bennett Williams: But it doesn't make any difference.

Justice Felix Frankfurter: Alright.

Mr. Edward Bennett Williams: I subscribe to that on that view.

Justice Felix Frankfurter: Alright.

Mr. Edward Bennett Williams: Yes, sir.

Now, the Government, if the Court please, has cited three cases as supporting its position, presumably a counsel has combed the whole field of federal decisions in an effort to bolster his position here.

And he cites three cases, Smith against The United States decided in this Circuit in 1958.

I refer to the District of Columbia.

That case does not support the Government's position because the Court of Appeals in the Smith case found the arrest to have been lawful, and it distinguished the Smith case from the Nueslein case.

It specifically said the arrest is lawful in any consolation that the Government may get in this case comes from dictum.

The case of United States against Walker which came out of the Second Circuit in 1952 is cited by the Government.

Again, the Court of Appeals for the Second Circuit specifically said that the appellant had failed to prove that the arrest was illegal, and so I say that that case likewise is not apposite.

And finally, he cites a case in 1945 which likewise came out of this Circuit called Gibson against the United States.And the Government fails to distinguish between two counts in an indictment.

One of which was struck down and one of which was not.

The one which was not struck down, which was affirmed, was supported by virtue of the fact that after the appellant had been unlawfully arrested and, Mr. Justice Frankfurter, after he had been released, he --he then made a statement to the police when he came to headquarters the next day and said, “I have more marijuana in another apartment.”

And of course since a release had terminated the effect of the illegal detention, the Court of Appeals for this Circuit permitted it.

Now, we likewise say that the narcotic seized in the apartment of Yee was in admissible as fruit of the poisonous tree within the purview of the Nardone decision and the Silverthorne decision.

And finally we say that the confessions which were given on the fifth and ninth of the month, some days after, were inadmissible because the record is absolutely salient with respect to any arraignment in this case.

The only thing that appears about an arraignment is the statement made on page 6 of the Government's brief where the Government says that the petitioners were arraign but there is nothing in the record to support it.

Now, in that statement appeared in Government's brief, since it was unsupported by the record, we wrote to San Francisco to determine the facts of the arraignment.

The facts of the arraignment time-wise are as represented by the Government.

But the facts of the arraignment show that at the time of the arraignment, warrants of arrest were issued on complaints by the officers.

I think that that is the demonstrative of the fact that at least in the arresting officers' minds, they did not have valid basis for those arrest without a warrant, which had been consummated many hours before.

Finally, there is one question which I think is dispositive of the case apart from the evidentiary consequences of the unlawful arrest.

And that is, that it has been hornbook law, articulated by this Court many times that a confession cannot support a conviction standing alone.

It must be corroborated.

Each element to the offense must be corroborated.

There is no corroborative evidence in this record with respect to these petitioners because the only evidence apart from the confession is number one, Toy's statement that there were narcotics in the possession of Yee, number two, the narcotics found in Yee's possession and number three, Yee statement that he knew Toy and Sun.

But there is no evidence, number one, that either petitioner concealed the narcotic, transported the narcotic, knew that the narcotic was illegally imported or that either petitioner possessed the narcotic.

The statute says that possession alone will support a conviction.

That is true, a conviction against the possessor but not against someone who is not the possessor and he -- who is not related to the possessor in a conspiratorial relationship and these men were acquitted on the count of conspiracy.

And so I say for that reason, these convictions cannot stand under Smith against The United States which made it a requisite that a confession be corroborated with respect to every element of the offense.

Now, I'd like to reserve the balance of my time for rebuttal if I may.

Chief Justice Earl Warren: You have very little but I'll -- I'll give you five minutes more to, if -- if you desire.

Mr --

Justice Felix Frankfurter: Thank you sir.

Chief Justice Earl Warren: -- whatever.

Mr. Solicitor General, you may have the next five minutes if you desire.

Argument of Cox

Mr. Cox: May it please the Court.

At first blush, this case is undoubtedly a troublesome and indeed, for me, it was a wearisome case.

The Government is not less concerned in the Court I think with accusations that federal agents in making arrest and searches have acted in violation of the Fourteenth Amendment.

And -- or the kind of first general impression one gets upon looking at this back quickly certainly lay some basis for thinking that perhaps that occur --

Unknown Speaker: Did that occurs in the Fourth?

Mr. Cox: I meant the Fourth, yes.

Upon examining the exact issues and upon looking at exactly what happened here with care and precision and particularly upon looking at the facts as they appeared to the arresting officers at the critical point in times, then I think the Court will get as I did, a conviction that there was no violation of law, despite the superficial appearances, that the agents acted with propriety and that there was no error in the court below.

Chief Justice Earl Warren: Well, the court below found that it was illegal, didn't it?

Mr. Cox: The court -- there was no -- that there was no error in the trial court's finding that the arrest was lawful and in the judgment of the court below.

Now, the trial court --

Chief Justice Earl Warren: The Court of Appeals --

Mr. Cox: -- found that the -- to the trial court didn't find that the arrests were illegal.

Chief Justice Earl Warren: The Court of Appeals specifically found that it was illegal, isn't it?

Mr. Cox: The Court of Appeals and we think that it erred in that -- in that statement.

No error in the judgment below it.

Now, one can get at the probably most accurately here, by looking at the objections that were raised at trial.

Petitioner's principal objection was to the admission of evidence.

They asked the District Court to exclude three things.

First, their confessions which were given voluntarily at the police station, four or five days after the arrest and after they had been released on their own recognizance.

There was no bail there when they were released upon arraignment.

Second, they seek to have excluded this ounce of heroin have found not at the premises of Wah Toy but a lot -- quite long distance way in the City of San Francisco sometime later.

There was nothing illegally seized at Wah Toy's premises.

And third, they seek to have excluded the directions given by Wah Toy as to where the agents would find this heroin.

The argument of course is that the arrestment of Wah Toy was unlawful, that the illegality of his arrest by the agents from following that lead to get the narcotics, that the narcotics therefore should be excluded from evidence.

And even if I understand it correctly, they say that since the defendants confess four days later, those voluntary confessions after arraignment and release should also be excluded under the logical conclusion their argument.

Now, manifestly the whole house of cards collapses if this, we submit to be the case, the original rest -- arrest was lawful.

In this respect, we think the District Court was correct.

The facts clearly must be taken as the District Court presumably found them and we think that the court below erred.

This question involves no legal issue that is in any way debated.

What it caused for is a simple matter of fact appraisal of the circumstances that confronted Agent Wong at the time that he went into the house.

And we think and I shall argue them in some detail, that those circumstances constituted probable cause for the arrest.

Justice Felix Frankfurter: When you say it doesn't involve an illegal question but merely a question of fact --

Mr. Cox: No the -- well, it's a legal conclusion.

Justice Felix Frankfurter: This Court divides frequently.

Lower courts divide frequently and divide closely as to whether or not there was probable cause as a question for determination by a court.

Mr. Cox: Well, I didn't -- I didn't -- I was really attempting to contrast this question with what I take to be the second issue in the case where there is a noble point of law.

And the all I was really trying to is to contrast the two in that respect.

Our second position is that the evidence was properly admitted even if the arrest, contrary to what I believe, was unlawful.

And petitioner, of course, to get a reversal must -- must persuade the court on both points.

If we prevail on either, then the judgment should be affirmed.

At the conclusion of my argument, I direct myself very briefly to this question about whether the confessions were properly corroborated.

Justice Felix Frankfurter: Before you move on, you happen to recall of this Court in cases where the matter was open to it has disagreed with the Court of Appeals which is found against the Government on nonexistence of probable cause.

And this Court has found that the Court of Appeals is wrong, that the arrest did have probable cause just open, do you remember?

Mr. Cox: The Brinegar case, it seems to me to be a possibility, that's in that category.

But I don't -- except for that case, I don't recall any with assurance where the -- before the court charged with finding what happened had found that there was probable cause then the Court of Appeals disagreed in finding the ultimate fact, they're applying for general standard to facts.

This Court was asked to revert it.

Brinegar, I think, had an off head guess involved at.

My first point then as I said, is that the arrest, although without warrant, were lawful because based upon probable cause.

The legal standard for determining the legality of an arrest without warrant is well-settled.

The criminal codes specifically give narcotic agents the authority to make arrest without warrant for violations of any law of the United States relating to narcotic drugs, where the person making the arrest has reasonable grounds to believe that the person's to be arrested -- person to be arrested has committed or is committing such violation.

The reasonable grounds required by the statute are equivalent, the Court has said to the probable cause required by the Fourteenth Amendment.

Probable cause is reasonable ground for belief of guilt.

It certainly something less than evidence that would justify a conviction, it's evidence that permits of some mistake on the part of the arresting officer, provided that the mistake was a reasonable one made by a man acting on facts leading sensibly to the conclusions of probability, to quote from this Court's opinion in the Draper case.

So the issue here is whether at the time Agent Wong went into the house, he had probable cause to believe that Wah Toy had committed or was committing the crime of concealing unlawfully imparted narcotics.

And I would like to take the Court first through the facts with respect to Wah Toy's arrest and then with the facts with respect to Wong Sun's arrest which I think will show as I've said that the agent had ground for this reasonable belief.

Let's take Wah Toy first.

The agent had first information given him by Hom Way would certainly seems to us to have justified questioning Toy.

And while perhaps not probable cause by itself, appointed suspicion and was a fact that the agent would properly keep in his mind as he proceeded with his duties.

Hom Way, the informer was believed by the agent to be reliable.

He testified to that both on direct and cross-examination, and he had known him for six weeks.

There's not the slightest hint contrary to Mr. Williams' suggestion, that there was any protracted interrogation of Hom Way.

We do know there was a period of time between his arrest and the time when he gave the information, but we don't know anything about what happened to him.

That Hom Way's statement was hearsay and would not be admissible in evidence, of course does not derogate from the fact that it would be one circumstance supporting probable cause as this Court held in the Draper case.

Justice John M. Harlan: Could I ask you a question?

This maybe a little awkward be.

Do you know whether it's the usual practice in narcotic enforcement to arrest that out of warrant in view of the statute -- in view of this case?

Mr. Cox: I couldn't say whether it is the usual practice.

I know it very commonly occur.

I know too, that the -- there is great pressure in narcotics cases to act quickly but there's no narcotic is so easily disposed of.

I think that's one of the important factors here.

But in terms of any statistical rule one way or another, I couldn't say Justice Harlan.

This evidence, I think that is the evidence that they had information from Hom Way certainly shows that the evidence acted properly in going to Blackie Toy to question him.

Justice William J. Brennan: That was the -- did Hom Way give them address, post address?

Mr. Cox: Hom Way simply said that there was laundry on Leavenworth Street.

The agents then went to Oye's Laundry at 733 Leavenworth Street.

Justice William J. Brennan: What?

Mr. Cox: Oye's laundry.

O-Y-E' - S.

The agent did testify that Hom Way did not give an exact address.

And that is all we know because no argument was made in the District Court where the evidence could have been developed to suggest that there was any doubt as to whether James Wah Toy was Blackie Toy or whether the agents had proper reason to go to Oye's Laundry.

It would seem to me that the fact that they went to Oye's Laundry was the best proof in the world that they knew either from the general description of -- although not an exact address or perhaps because the agents, some of whom were themselves of Chinese descent, were confident agents and knew the area and knew that it was Blackie Toy who run the laundry or perhaps Hom Way gave them a description of the premises without telling them the exact address.

Justice William J. Brennan: Was Agent Wong a Chinese?

Mr. Cox: Yes, sir.

There were two Wong's, William Wong and Alfred Wong.

Justice William J. Brennan: But the conversation with Toy was an English, was it?

Mr. Cox: That doesn't appear.

And for all we know that may have been in Chinese.

I don't say it was.

I know that the agent was Chinese.

We also know so far as the conversation goes Justice Brennan that James Wah Toy had been to school in this country from which we should infer that he lived in the country for a long time.

We know that he testified it in English.

We know that he was able to read his confession in English and understood and could -- understood all of the words and could pronounce all but one.

And we also know from another witness who had known him back to 1953 or 1954 I think it was.

So that -- there's really not the slightest reason that I can see to doubt that he understood the events I'm about to come to that happened --

Justice William J. Brennan: Well, didn't Mr. Williams --

Mr. Cox: -- at the door.

Justice William J. Brennan: -- suggest on -- on Friday with there was something about that conversation to indicate that Toy might (Voice Overlap) --

Mr. Cox: Well, he -- he certainly suggested this.

He was drawing inferences.

I think wild speculative inferences from the fact that their interpreter is present at the trial.

But if you read what happened is a remark at the trial that he's testifying in English.

And as I said, there's explicit testimony that he was able to read and pronounce all the words in his statement in English, and there's also testimony that he said he had had a few years of school.

And there's a further evidence that one of the witnesses knowing back as I say round 1953 or 1954.

So in the light of those facts, it seems to me, there is no basis for assuming that he didn't understand what the agent meant when he said I'm a narcotics agent and that he didn't understand the badge of course the fact that he then slammed the door and then turned around and run.

It's most persuasive that he understood only too well.

It -- I've returned to the reasonableness of the agents going.

Chief Justice Earl Warren: Did the court appoint an interpreter for him?

Mr. Cox: The court had an interpretive presence.

There were several members.

There were three Chinese here.

And it does appear that an interpreter was appointed for the trial.

It also appears that there were occasions in -- there was the comment during the examination of Wah Toy on voir dire that he and the interpreter we're talking back and forth.

And I think it was the court that it may have been counsel, who said he's testifying in English but they're discussing it in Chinese.

Apparently, no one in the room knew what was said in the Chinese.

That's the full evidence on what happened in the court.

Justice William J. Brennan: But I gather it does not affirmatively appear either from Toy or from Agent Wong whether their conversation that morning was in English or in Chinese.

Mr. Cox: No, it does not.

It does appear that they understood each other well enough to ask for the laundry and to be told to come back later.

And as I say, it appears that in our view, he knew when to run.

I come back to the point of the propriety of the agents conduct enduing to this laundry.

They went at 6:30 in the morning which I submit under the circumstances was not an unreasonable hour.

It was daylight.

8 o'clock is a common time for opening businesses in that community.

Indeed, Wah Toy was going to open his day at 8 o'clock.

There was some urgency about pursuing this lead there and there.

Hom Way had been arrested.

When one close to a narcotics group has been arrested, his -- the word of his disappearance spreads rather rapidly.

Narcotics are very easily disposed of.

If you took too long in pursuing the point, they might be disposed of in the interim.

Now, I don't suggest that Hom Way's information taking a -- taking alone would constitute probable cause.

We do submit that it was certainly a sufficient reason to go to the laundry and to pursue the investigation further.

So the laundry went -- so the investigator went to the laundry, knocked on the door, I emphasize that Alton Wong went to the door alone, there was no (Inaudible) at the door.

There was one agent thereby himself and attempted to draw the man who came to the door into conversation.

When the -- Wah Toy, as it turned out to be, attempted to break off the conversation.

The agent took out his badge, said, “I'm a narcotics agent.”

And at that point and only then that Wah Toy slammed the door and run down the hall so that there may be no doubt about this.

Let me ask the Court to turn to the relevant passage in the record.

On page 51, bottom of the page on the right hand side, they brought the witness up to the time where he -- where Wah -- Wah Toy told him to come back and the witness finished there.

“And at that time, he got the door halfway open and I pulled my badge out”, describe what you mean by halfway open.

“He get the door one hand on the door.

The door is open about -- I would say about 30 degrees open.

And he was talking to me through the door.

And he told me to come back at 8 o'clock.

I told him I pulled my badge out and told him, "I am a federal narcotics agent.

And at that time, he slammed the door and started running.”

In other words, after he pulled his badge out, the agent has pulled his badge out and after he had said, “I am a narcotics agent”.

Running where?”

“Running inside his living quarter.”

“Could you see it?”

“Yes, sir.”

“What is it, a glass door?”

“Yes, it is glass door.”

“No obstruction, that is correct?”

“No, sir.”

So they further declaimed that this wasn't a bursting in, simply on the strength of what Hom Way has said.

It was a bursting in after a man who had fled as soon as he was informed that there was police.

And bursting in after a man as to whom the agent already had some information tending to link him with a narcotics violation.

At this point, he had the two things.

He had the statement of Hom Way that Wah Toy has been dealing in narcotics which was given by a man he believed to be reliable, although conceitedly he had never had information coming before.

But he said he believed him to be reliable.

And he had the fact that the minute -- although the man was willing to talk to him, open the door when he knocked on it, that the minute he said, “I'm a narcotics agent” and showed his badge then the man turned and ran.

We're now adding the information from Hom Way -- Hom Way.

And this turning and running together, it seems to me, that there was a clearest ground for the evidence to conclude -- for the agent to conclude that this man is running to destroy his narcotics.

Experience as a narcotics agent would've demonstrated over and over again that when a -- a man -- the narcotics train, is approach of by an agent and learns that he is an agent.

The first thing he attempts to do is to get rid of the narcotic and to escape perhaps if he can but narcotics can so easily disposed of that this invariably an effort to slap it off in some manner.

And certainly, the agent could rationally conclude that this is what happened here.

Let me look at it in another way.

Why else would the man have run?

Look at it from the point of view of the agent.

It's certainly no reason to suppose -- for him to suppose that the law in agent was a burglar.

It was daylight.

The agent himself was of Chinese descent like Wah Toy so I do not think one can present a picture even if he otherwise could to be a stranger in the city confronted with a lot of people who were not likely to be sympathetic to him.

The agent had identified himself before Wah Toy ran.

And so again, there was -- this would destroy the notion of the burglary.

Mr. Williams says, “Well this was the erratic behavior of a victim of unreasonable intrusion.

But there had been no intrusion.

It's only when you jumble the facts all up together and don't take the situation as it confronted the agent at that time which is the decisive question that you can say that this was the result of the erratic behavior resulting from an unreasonable intrusion because there'd simply been none.

Now, I would concede of course that a citizen has a right to break off a conversation with a police officer.

There was no reason why Wah Toy shouldn't have simply said, “I don't care to talk to you,” have shut the door and gone quietly back to bed.

But I submit that one would not -- who is a that frame of mind, who is standing on the sanctity of his health, wouldn't suddenly turn at the moment it was -- he learn this man was a narcotics agent, slam the door and run back to the other part of the house.

It does -- it doesn't seem to me that would be the normal way to react.

No I can't think of any other explanations that the agent could have put on this conduct.

There's no suggestion that he -- that Wah Toy had smelled his breakfast burning and runaway for that reason or something like that.

Toy didn't suggest any explanation.

Toy simply said, “It didn't happen that way.”

Justice John M. Harlan: You said he was taking long steps?

Mr. Cox: Well, first he said he didn't run then he said he was -- he was pushed into saying he was taking long steps but I take it that the District Judge didn't' believe that and certainly didn't have to believe it ended on the -- this Court should at this stage take the fact as to what happened in the terms most favorable to the Government.

Wah Toy told several difference stories about this incident in other respect.

Chief Justice Earl Warren: The officer told two different stories to -- to Wah Toy, didn't he?

Mr. Cox: The officer --

Chief Justice Earl Warren: Came he -- would he came, he --

Mr. Cox: The officer --

Chief Justice Earl Warren: -- lied to him --

Mr. Cox: -- first asked the laundry.

That's true.

Chief Justice Earl Warren: Yes, he lied to him and said he was there for the laundry.

Mr. Cox: But it seems to me that that had nothing to do with the later entry.

And it hasn't yet been held that an officer commits any wrong if he uses his rules to draw a man into conversation.

Indeed, it hasn't yet been held that obtaining entry into a house by a rules is a -- if the entry is otherwise -- if the search is otherwise proper, is a violation of the Fourth Amendment.

Let me make it clear, we don't have that here.

And I don't think the propriety of the attempted rules to draw the man into conversation in anyway takes the right upon probab -- finding a probably cause to go into the building and to make the arrest.

I don't want to stress the point too much but let's look at this from the agent's point of view and say what else should he have done because I think when you ask that question, it becomes even clearer that it was probable cause to make the arrest.

And certainly at this stage, he shouldn't trap the man.

I take it nobody would say that he should have gone away and said, well that's not a very coro -- cooperative citizen but we will forget the whole thing.

Should he have gone and try to get arrest with search warrants then and there?

If he had, he's certainly risk the distraction of the contraband.

As I said before, there is one sure thing that anybody engage in the narcotics trap attempts to do is to get rid of the morphine or heroin or whatever it is when the police come close, and it --

Justice Felix Frankfurter: Mr --

Mr. Cox: -- can be done very quickly.

It's something to be washed right down the drain.

Justice Felix Frankfurter: Solicitor, this Court has held over my protest constantly that the opportunity to get a search warrant doesn't nullify arrest of searching without warrant.

Mr. Cox: Yes.

I'm aware that it has but in this case, I don't think that issue was presented.

Justice Felix Frankfurter: No, I -- I mean here.

Here, there was no opportunity.

Mr. Cox: Here, there was no opportunity.

And here too, if he hadn't acted quickly, there was an opportunity for Wah Toy to warn any co-conspirators and for Wah Toy to escape.

Now, some of those possibilities could have been minimized by calling the agents half a block away and posting them at the doors of the house.

But I suppose they would have had no more right to arrest Wah Toy when he came out than the agent had to arrest him then and there when he fled.

And certainly, posting the man outside would not have, in anyway, prevented the destruction of the heroin or prevented warning co-conspirators of the appellant.

Chief Justice Earl Warren: General, did they -- did they have the right to arrest him at the time they went to the door?

Mr. Cox: We make no such argument.

We stand and all I -- the two combinations of the two bits of evidence.

To this extent Mr. Chief Justice, we do differ very strongly with the court below.

We think that the attempt to lay down a -- sort of a subordinate rule about probable cause applicable to informers by the court below where it says that if the informer has previously given the information that proved reliable then his tip constitutes probable cause.

But if he hasn't, it isn't probable cause.

We think that is a very grave mistake, and we're much concern about that as a general proposition because we think that the ultimate question is whether there is probably cause that whether a -- information from an informer constitutes probable cause, depends on many things other than just whether he has given the information before.

It depends on who he is, his station in the community, what is known about him or what kind of evidence he gives.

Indeed in the Draper case, if the Court will recall, was given in great detail and it was possible to verify.

So, I do want to say that we are concerned about the Court's declaration.

We think that it made a basic mistake there.

But in this case, Mr. Chief Justice, come back again to a direct answer to your question.

No, I do not assert that on the basis of Hom Way's statements alone, the agents would have been justified in making the arrest.

We think more important than that was this flight and flight --

Unknown Speaker: (Voice Overlap)

Mr. Cox: -- was the flight from the agent the minute the man learned the retreat if that's a more acceptable word but turning and running which is what he did and over and over again in cases.

The Court's have held almost without exception that running away from one known to be a -- an officer investigating a crime is itself, the strongest kind of evidence furnishing probable cause.

Now, I don't say that that alone would have constituted reason to breakthrough the door and to make the arrest.

But here, there was the two together and the two together and taking the agent's position, we think certainly gave him reasonable grounds to believe that this man was concealing or had concealed heroin and that's enough for the purposes of this case.

There's one illustration that is very close indeed, I don't want to bother the Court of precedents because this case is on probable cause turn very much on their own fact.

But there is a case decided in California where the agents were somewhat more information from an informer than there was here and some other confirmatory evidence went to a house where they thought narcotics were concealed and knocked on the door and when the man came, he discovered they were police officers.

He slammed the door in their faces and they could hear his steps running into the inside of the apartment.

The California courts held that there was probable cause to go in under those circumstances and they did see is the narcotic.

Under such circumstances, the Court said the act of the man in slamming and locking the door indicated that the man was fleeing from and attempting to prevent the officer from apprehending him.

The information which the officer had received and the conduct of the appellant in the presence of the officer constituted probable cause to arrest appellant.

We think the basic mistake of the court below was in taking these two things each separately.

It may well have been true that the information given by Hom Way alone did not constitute probable cause.

It might well have been that if this had happened with the officer who had gone up to the door with no reason to go there and other lack of information and the man turned and fled that that alone wouldn't constitute probable cause.

But I submit that anyone in the position of this officer when he had the two bits of information, who has had -- who had to face the question, “What do I do now?”

would have answered by saying, “It is my duty to arrest this man.”

So he went in and followed him.

Now, if -- if he did have probable cause in that stage then of course the arrest is lawful and the whole of the petitioner's case collapses.

There is one other point which I should -- with which I should deal before leaving this matter of probable cause to arrest Wah Toy.

The agent pushed through and broke the lock on the door, broke the door right around the lock one or the other, immediately that he heard Wah Toy -- saw Wah Toy attempt to slam the door and saw through the glass door, he couldn't miss any of this, Wah Toy running down the hallway.

The agent did not stop and say again, “We are police.

I have come to arrest you.

I asked admission.”

In other words, the argument is made to the Court that there was a failure to conform with the various statutory rule laid down in Miller against the United States.

But note that this was not a case of coming and breaking into the door or climbing into the window without any previous announcement to the occupant.

Indeed, there was an announcement and it was the announcement that led the occupant to try to slam the door and run.

The Court in the Miller case or this case we submit comes within the well-recognized exception that announcement is unnecessary where the officer has reason to believe that it's useless or that it will result in the destruction of evidence or the destruction of contraband.

In the Miller case itself acknowledged that there were state decisions holding the justification for noncompliance exist in exigent circumstances.

As for example, when the officers may say in -- may in good faith believe that the person arrested is fleeing or attempting to destroy evidence, plainly, this is such a case.

The same rule has been recognized by the California courts, and the same rule has been announced by the American Law Institute in the restatement of torts.

So that I think there is really nothing here to the point that some further announcement was necessary to make this arrest proper.

I turn now, although Mr. Williams do not stress it in argument, to the point that he argues in his brief to it that there was no probable cause for the arrest of Wong Sun.

In this instance, it seems to us that there's really no merit to the argument at all.

When the officers went to arrest Wong Sun, they had the statement of Johnny Yee.

Johnny Yee, you'll remember is the man to whom Wah Toy had appointment, and said he has the narcotic, he's the man who sells narcotics.

And it was in Johnny Yee's house that the agents found something less than the ounce of heroines.

Johnny Yee said that he got the heroin from "Sea Dog.”

And -- but he couldn't say who "Sea Dog" was.

He just knew him as a man named "Sea Dog.”

Here is one item that the agents had when they went to arrest Wong Sun.

And this statement by Johnny Yee was certainly supported by the fact that Johnny Yee did have narcotics.

They no longer just a tip, it was a tip by somebody who had the narcotics which gave some support to it.

Furthermore, this information fitted in with Toy's assertion that Yee had the narcotics.

And it was corroborated that Toy's statement was corroborated by his close description of the inside of Johnny Yee's house and of the habits of Johnny Yee's friend.

In addition, the agents, before they went to arrest Wong Sun, had Toy's identification of “Sea Dog.”

They'd identified him, they told where his house was and indeed he took him to the house and pointed it out.

So that this -- this corroborated but Yee had said still further, “You had two men giving information”, according to Wong Sun.

I think the agents were also entitled to take into the account although it was fairly remote that Hom Way's original story had put them on this trail although it did not work out exactly as Hom Way has said.

And finally, the record does contain that some indications that the agents knew “Sea Dog” have awe.

One of the agents when they we -- went to make the arrest and greeted Sea Dog's wife by her first name.

She apparently knew him.

And we know that “Sea Dog” had had a prior conviction.

So that again while this is slate and I think the information from Yee and Toy are the crucial thing, this still more gave reasonable grounds for believes that Wong Sun was guilty of concealing narcotics.

Now in his case, there's no argument directly that the manner of making the arrest of the agents' testimony meant as it is plain that they were admitted by his wife and sister and that the wife said that he was in a certain room that they then went in and arrest him.

So I submitted in conclusion upon this point that as in the case of Wah Toy, there was probable cause for the arrest of Wong Sun and that the case the petitioner made for the exclusion of the evidence, the foundation is called out from under and that the Court should affirm the judgment below without ever reaching the question of whether the exclusionary rules would keep this out -- evidence out if the arrest were unlawful.

I would like now to go on and consider that point since it was in the opinion below and the ground on which that court rested and has been briefed and argued here.

We submit that even if the entry into Wah Toy's house and his arrest were unlawful, nevertheless, the narcotics found in another house pursuant to Toy's direct and the confessions made five days later when these men weren't even in custodies were properly admitted in evidence.

And we make the same contention with respect to the statement by Wah Toy at the time of his arrest that narcotics would be found in Johnny Yee's house.

Now of course, I concede that there is a well-established general rule that excludes from admission in evidence after an unlawful search and seizure all physical evidence, seized as the result of the unlawful search, all observations made by the police while unlawfully in the premises, any conversation overheard by the police while unlawfully in the building and in addition, any other evidence which is the direct product of the Government's unlawful action.

Plainly, the first three categories that we can set aside as irrelevant here, there was nothing tangible seized at Wah Toy's house.

And there's no claim that there was an unlawful search or indeed any search at Johnny Yee's house because he voluntarily handed over the narcotics.

There was nothing observed at Wah Toy's house.

There are no conversations overheard as in the Spyke case which were improperly obtained by the agents.

The confessions of the heroin was taken from Yee's, the confessions as I say came five days later and the statement, “You can go to Yee's to get the narcotics,” we contend was voluntarily given and related only by coincidence in time to the assumed to be unlawful arrest and that no sense a product of it.

Justice Felix Frankfurter: You deal with the Nueslein case later but at this --

Mr. Cox: I shall.

Justice Felix Frankfurter: -- but at this point, I just want to recall that in that -- in the opinion, it said that the -- the utterance, the ejaculations of a cabdriver in that case were something that was quote found the opinion puts in --

Mr. Cox: Yes, yes --

Justice Felix Frankfurter: -- the opinion puts --

Mr. Cox: yes.

Justice Felix Frankfurter: -- in the quotation mark --

Mr. Cox: Yes, it does.

Justice Felix Frankfurter: -- found.

Now, was this found?

Mr. Cox: Well, I've -- I submitted that it was not.

Justice Felix Frankfurter: But it was found in the sense in which of course in this law.

Mr. Cox: Well, I think there --

Justice Felix Frankfurter: I mean there maybe other distinctions but it was --

Mr. Cox: Well, yes -- yes, I -- if I understand you correctly, it's found --

Justice Felix Frankfurter: In quotation mark.

Mr. Cox: Yes, it took place in -- I would state accurately, the statement was made while they were there unlawfully on the premises.

There was certainly a coincidence in point of time.

And I suppose that one would not have occurred but for the other thing -- but for an action would certainly satisfy.

The fruit of the poison tree doctrine, we submit, does not bar from evidence everything that comes into the possession of the Government that is found in the sense that Justice Frankfurter was just using the word after an unlawful search seizure.

The original case Silverthorne was of course one where the connection was very mediate.

The Government was seeking to put in an evidence Photostats of materials, they never would have known existed but for the unlawful entry.

In Nardone, the Court held that it was error to prevent inquiry into whether the Government's other evidence had been achieved as a result of the original unlawful wiretapping.

The case was reversed for the purposes of making that affirmed.

Even in Nardone, the Court said that as a matter of good sense, however, such connection may become so attenuated as to dissipate the tape -- tape.

What we have I suggest, is a question of proximity and degree.

The aim here is certainly to eliminate the incentive for misconduct by the police.

It's to avoid stultifying and debasing the Court by convicting man of crime on the basis of evidence obtained through crime.

On the other hand, it is also been -- has also been the effort of the Court, it's clear in this on several occasion, to avoid the mistake of immunizing those who may be guilty of simply because of the misconduct of the Government agent.

There's a balance to be struck.

And I would say that the way to strike it was in terms of appraising the relationship between the misconduct and the evidence sought to be used.

Now, I'd like next to illustrate to the Court -- put to the Court a number of illustrations in support of those general observations.

I do not contend that they're on all force with this case but I will come closer to this case as I go through in the sense the preposition is illustrated by the fact that a man who has been the victim of an unlawful search and seizure may nevertheless be prosecuted.

I suppose that his plea of guilty may in some remote sense be stimulated by the fact that the agents walked in on him when he was in possession of the -- of the contraband or the instruments of crime.

Nevertheless, the mere fact that such a guilty plea follows after an unlawful search that does not make it legally irrelevant and of course the conviction based on such a plea withstand.

There's an interesting case here in the District Circuit which illustrates the point.

In (Inaudible) against the United States as the name of the case, in this case the man was unlawfully detained at the police station.

During the period of unlawful detention, one of the victims of the crime came in and identified him.

And later, the victim testified at the trial that this was the man.

He argued that since he'd brought to the victim's -- brought to the witnesses' attention during the unlawful detention that this testimony should not be admitted but the Court held that it was admissible and deferring conviction.

Again in the Bynum case, a man was fingerprinted during an unlawful detention.

It was held that those fingerprints could not be used as evidence to compare with the fingerprints left at the scene of the crime, and the original conviction was reversed.

But when the case came back based upon evidence of the man's fingerprints taken from the FBI files compared with those at the scene of the crime, the court, the same court held that conviction was proper even though in the sense the original fingerprint and original comparison had led to the idea that they should get out Bynum's prints from a standing FBI file.

Perhaps a closer case in point is United States against Bayer where the Court will remember that it was held with only one justice dissenting that a second confession given by a man who had already confessed during a period of unlawful detention was nevertheless admissible in evidence if it was indeed voluntary.

And the Court recognized that the original confession undoubtedly played some part in the later decision to confess but said that this is too remote from the wrong by the police and permitted the conviction to stand.

Finally, there are a very considerable number of cases holding that confessions given after an unlawful arrest are admissible in evidence.

This is -- I don't mean confessions, during an unlawful detention, I -- I'm not saying anything inconsistent with the McNabb case.

I'm speaking simply of a confession made immediately after an arrest without probable cause or a confession made sometime later where the original arrest is challenged but there has been no unlawful detention.

In those cases, the Second, Fifth, Ninth, Tenth and District of Columbia Circuits have all held the confession to be admissible in evidence.

And there a fair number of state court cases even in states that had followed the exclusionary rule of Silverthorne which have held that such confessions are admissible.

Now, let me apply that latter rule to some of the evidence that petitioner seeks to have excluded.

The confessions here were made four days after the arrest.

By that time, the man had been arraigned that originally bail had been set and then on the motion of the United States, they had been released on their own recognizance.

They weren't even in custody at the time they made the confession.

Justice Potter Stewart: When you say they did arraign, do you mean they -- they appear before United States Commissioner?

Mr. Cox: They've been before United States Commissioner.

They were taken on the Fourth and the Fifth before the United States Commissioner.

Justice Potter Stewart: And what happened there?

Mr. Cox: Well, they were charged with narcotics violations.

The bail was set.

And then later in that day, the representatives of the United States at the request of the Narcotics Bureau went back and asked the Commissioner to reduce them on their own recognizance.

And they did it.

I will be happy to see that it gets to the clerk one Photostats of the record, of the proceedings before the Commissioner.

If I can have ten made, I will do it but this is a Photostatic copy and I am not sure whether it can be recopied.

Justice William J. Brennan: Mr. Solicitor, one of the point Mr. Williams makes that at this time there has been warrants (Inaudible)

Mr. Cox: It seems to me utterly irrelevant.

Justice William J. Brennan: What -- what's the -- what's the chronology in that?

Mr. Cox: Well, all I can tell is that the -- the record shows that on the June 5, this is for Wong Sun a warrant was issued to the United States Marshal.

There is no return.

I think that they were all right there at the time.

Justice William J. Brennan: But when the warrant was issued, were they actually in custody?

Mr. Cox: Well, I -- I don't know anymore about it.

It appears here.

I --

Justice William J. Brennan: I gather you were saying was that --

Mr. Cox: There is no return from --

Justice William J. Brennan: -- (Voice Overlap) --

Mr. Cox: -- which I infer -- from which infer that Wong Sun was physically present in the proceeding before the Commissioner when the warrant was issued.

But that is purely inference from this doctrine.

Justice William J. Brennan: Well is that to suggest that the proceedings before the -- there's only one proceeding and that involve both?

Mr. Cox: No, there were two proceedings, the one -- the one for James Wah Toy and Johnny Yee.

There was one proceeding involving Johnny Yee and James Wah Toy dated June 4.

That's the day they were at the laundry.

And again, a warrant that shows that a warrant was issued for the arrest of Johnny Wee -- Johnny Yee and James Wah Toy, the U.S. Marshal or rather authorized officer.

Justice William J. Brennan: Well, the only -- only thing I'm trying to get clear is were they in fact under arrest and detain at the time the warrant issued?

Mr. Cox: Well, I don't -- there are only two possibilities and I can't tell you how -- which is the correct one.

One is that they had not been arrested and that Wah Toy on the Fourth after questioning him at his house had not been immediately taken down to the Narcotics Office and that later, they got warrant for his arrest.

The other possibility is that he was detained and held until he was released on his own recognizance at -- well, it doesn't say -- it doesn't say the exact hour or at least it's not legible.

It simply says that the $5000 bail was reduced to order releasing each defendant on his own recognizance.

Unknown Speaker: Do you know anything about that?

Mr. Cox: I don't -- we don't have any additional information.

I do -- Mr. Williams made something of it.

It seems to me that it's utterly irrelevant.

I doubt very much whether any inference adverse to the agents could be thought at the time they went before the Commissioner.

Anyway, the arrest was completed at that point.

The question is what they thought they were doing and what they did do back at the time they went in (Voice Overlap) --

Justice William J. Brennan: Now, in any of that, is it your position that the confessions admission to which objection is taken were given after they had been released on (Voice Overlap) --

Mr. Cox: Oh, yes, sir.

They were given on June 9 long after they have been re -- long after eight hours -- three days after they have been released on their own recognizance.

And there's elaborate testimony on the record, I'm sorry, I misunderstood you.

There's elaborate testimony in the record that they came down to the Narcotics Office and there's the usual description of what the agent said to them and that they voluntarily signed this statement.

There was three days in between.

By any irregardless of what the question is as to their status between the arrest and the formal release on their own recognizance.

There were three additional days.

Justice William J. Brennan: Well, Mr. Williams as I gather, (Inaudible) see that there is an exception in respect of a confession given after release from an unlawful detention.

And is it your position that this fits in the exception that Mr. Williams --

Mr. Cox: I would think it -- it's my position that it fits in for the exception.

But of course, my view of the law is not quite the same as his.

I would say that not on -- that this -- I would say first that the McNabb Rule to what he says creates an exception is not a rule dealing with arrests at all.

It's a rule dealing with unlawful detention.

And so far as I know, there has never been a decision in this Court or indeed any other court except to possibly the Nueslein case in which the mere fact that (Inaudible) was unlawfully arrested was held to be grounds for excluding a voluntary confession, such scattered law as there is dealing with confessions made during improper searches and seizures are moved from the unlawful arrest.

The search and seizure such laws there is, is entirely in our favor with the possible exception of the Nueslein case.

Now, I want to suggest this very important distinction to Your Honors.

I think cases that I referred to and we've cited in our brief are consistent.

There are certainly some statements made during an unlawful search or seizure which I properly excluded from evidence.

The best illustration perhaps, the clearest illustration is the case in Mississippi, Harris against the State.

In the first case, Quan against the State which we refer to, the Court had held although they had the exclusionary rule like the federal rule that a confession or a statement, an admission made during an unlawful search was admissible in evidence if it was truly voluntarily.

It said there was no necessary or essential connection between an illegal search and statements freely and voluntarily made to the officers, and it went on to like in the making of such statement to a consent to a search.

Now, this later case came up in which the police had unlawfully seize a man's suitcase.And then they ask the man, what's in it?

And the man said whiskey.

It's within a dry area.

And the Court held that the admission as to what was in the suitcase that the police were obviously going to open and look at was -- that that was as inadmissible in evidence as if they had opened the suitcase.

And I choose the Mississippi cases because it contrast the Harris case with the earlier case found against the State which makes the point that I'm trying to make and that is that the question is whether the admission or confession just happens to be coincident with the search in point of time but it's really the product of a voluntary exercising will on the part of the defendant or whether it is in some way the result of the pressure put on him by the unlawful search.

Now, in the suitcase case is obviously it is.

The Nueslein case comes close to ours but I think it's rather distinguishable on that same ground.

The officers in Nueslein went in to the taxi driver's house either opening the door or the door was opened, I don't know which it was.

There was no one there, somehow rose people upstairs, and the taxi driver was upstairs in the bathroom, and he came down the stairs 10 or 15 minutes later.

And in that stage, he made admissions about driving the car it was evidently and visibly intoxicated.

Now, there are two factors I think which go to suggest that he -- this was not a free and voluntary statement.

One was that he's been drinking.

It was a statement obtained from him while he was under the influence of intoxicant.

Another was it seems to me that the case is one where he was under considerable pressure to explain his condition.

For example, as the case cited by the petitioners in Delaware case and Brinegar against the State in which the officers had unlawfully arrested a man.

He was later tried for some offense where there had to be proofs that he'd been drinking whether it was a driving under the influence of liquor or manslaughter or something like that.

I don't know.

And the agents testified about his conduct during the period of the unlawful arrest and detention.

There wasn't any admission.

I think Nueslein that comes very close to that.

The only additional fact is that he did attempt to give us some explanations about himself, but it seems to me, there were pressures to try and explain a way what the officer had unlawfully obtained.

Now, here in our case --

Justice Felix Frankfurter: Before you move onto this case, what was the illegality in Nueslein?

Mr. Cox: Well on first place the only offense was a misdemeanor and it wasn't commented in their presence.

And therefore, there was no right to make an arrest without warrant at all.

They did go into the man's house whether to arrest him or to search or to ask questions.

No one knows.

It was an unlawful entry.

They had no permission --

Justice Felix Frankfurter: There was no -- there was no unlawful arrest.

Was then arresting Nueslein?

Mr. Cox: As I remember, he was taking down to the --

Justice Felix Frankfurter: Afterwards?

Mr. Cox: -- police station later.

Afterwards, yes.

Justice Felix Frankfurter: When the -- when the utterance is made, when he shouted down --

Mr. Cox: I don't know if he'd been told -- oh when he first shouted down, there hasn't been any arrest.

Justice Felix Frankfurter: There'd been no arrest?

Was there --

Mr. Cox: No.

Justice Felix Frankfurter: any illegality?

Mr. Cox: I should think that the police officers to walk in to his house was an illegality.

Justice Felix Frankfurter: The point of my question is that to me there's a great difference between conceded unquestioned illegality and conduct which requires this Court to decide whether it was or was not probable cause, suppose to me a very different situation.

Mr. Cox: And that I -- I quite agree because one of the -- it's a question whether the agents have gone in for the purpose of getting unlawful evidence or whether they have been called on to make the judgment often in closed questions and then to attribute this interim consequences.

They really don't serve the purpose at all.

The -- well, to -- to try and pull -- try and pull this together, our position with respect to these oral statements is first that the confession, as I think I've shown, were frightfully remote both in terms of intervening events, in terms of the time and in terms of the exercise of freewill -- of a exercising freewill by the man who confessed from any even arguably unlawful entry.

The statement made by Wah Toy, I would point out, was not even a confession.

It certainly wasn't an effort to explain away something the agents had found.

There was no pressure of that conduct.

It was an effort perhaps to divert suspicion from himself.

He said, “No, I've never done anything wrong but go over Johnny Yee house.”

So that it's quite different from the case in which -- or the arrest has caused the search, has uncovered something which the owner of the house feels impelled to try to explain a way.

It's rather like a -- other case in the District of Columbia where a man was arrested.

It was alleged that there was not probable cause.

As soon as he was arrested, he produced a small quantity of narcotics and turned it over to the agent.

Later, they searched him and found a large quantity of narcotics.

And the Circuit Court here held that the small quantity was admissible in evidence whereas if he turned over the whole thing because he says, “There was no use.

You're rampaging through my clothes.

I'll give it to you.”

Of course, it wouldn't have been admissible in evidence.

And I think the significant difference is that the way he did it showed that this was a calculated act which he had -- had chose to do or not to do and not of the result of something forced upon him by the illegal conduct of the police.

And so here, Yee's statements, that was the kind of statement, it was in the clearance so far as anything in his housewife, was the kind of calculated effort to get the police to go somewhere else and think well of him which cannot be regarded as the product of any overpowering influence by the presence of the officers.

Now, the remaining question in the case is whether the confessions were sufficiently corroborated by other efforts.

We've dealt with this in detail in our briefs.

The chief corroboration here just to devote a sentence or two to it is of course the finding of the narcotic.

There they were and you will note if you examine it with the care that the exact quantity of narcotics found tallies very closely with the confession saying that we took one piece, one ounce of heroin to Johnny Yee's.

And then later, we smoked some of it because the amount that was gone was a small amount, just about equivalent to what they might have smoked on the two nights in question.

Again, the interplay of the knowledge of each of these two men and so far as Johnny Yee testified his knowledge in the others tends to show that the confessions were trustworthy that they were not the product of a disordered mind or one pressured into erratic behavior by the fact that he was arrested and charged with crime.

We submit, therefore, Your Honor that the judgment below should be affirmed but on the first ground I argued with the second left I think more wisely, although we believe we're right to some future occasion.

Chief Justice Earl Warren: We'll recess now.

Print this transcript Transcript:

Argument of Edward Bennett Williams

Mr. Edward Bennett Williams: May it please the Court.

I think that there is one fatal flaw in the argument made by the Government with respect to the validity of petitioner Toy's arrests.

The fact of the matter is that nowhere in the record is there an equation of Blackie Toy who was mentioned by Hom Way with petitioner Toy.

The Solicitor conceded that if Alton Wong was at the door of Oye's Laundry at 6:30 in the morning without reason then the flight of the men who opened and response to his knock would be meaningless insofar as probable cause is concerned.

So far as the record shows, there was no reason nor could there have been for Alton Wong, the narcotics agent to believe that the man who opened the door of Oye's Laundry at 6:30 in the morning was the man who was mentioned by Hom Way.

He was told by Hom Way and in fact he was the agent who was so told another was that the narcotic was bought at a laundry on Leavenworth Street from Blackie Toy.

I think this Court can judicially notice because it is the fact demonstrable from a map that Leavenworth Street is several miles long and it runs through the heart of Chinatown in the Northeast section of San Francisco.

The laundry was not known as Toy's Laundry but Oye's Laundry.

When he rang the bell and a man opened the door, he had no reason in the world to believe that the man who opened the door in response to his knock and ring was the Blackie Toy mentioned by Hom Way.

Justice Potter Stewart: Suppose let him to go to that laundry.

Mr. Edward Bennett Williams: The record is silent on that and I don't think.

Justice Potter Stewart: But certainly --

Mr. Edward Bennett Williams: I don't think we can reason from hindsight as the Solicitor attempted to do to the validity of the arrest.

He says that fact that the defendant ended up as the petitioner ended up as the defendant would justify there going there.

I don't think that can be made.

And the record also shows, if the Court please that James Wah Toy, and I direct the Court's attention to page 36, testified through an interpreter.

Again, if the Court please, the Solicitor said that the facts as they confronted Alton Wong, the agent, should be the decisive in this matter.

Well, the fact as they confronted Alton Wong are well revealed at Page 53 in the record where he testified that the arrest and the seizure and the taking into custody of the petitioner was accomplished after he got into the room, and certainly it is a reasonable and I think the only reasonable inference that the arrest was made was because the petitioner reached for his nightstand.

Now, finally, if the Court please, the Solicitor said that an arraignment took place in this case.There is nothing in the record to show an arraignment.

It is absolutely silent.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I believe that that is so.

I believe an arraignment took place.

The record is silent on it.

But if we are going to accept the fact that the arraignment, Mr. Justice Brennan, I think that we must accept all of the facts concerning the arraignment and when he made the representation in his brief that an arraignment took place, we secured the records and the records of the arraignment showed that the arrest of these two men were accomplished by warrant issued by the Commissioner.

Now, the Solicitor says, this lands itself to one of two inferences, either that there was no arrest made in Toy's bedroom, and that the arrest was not made until he was taken before the Commissioner or alternatively that an arrest was made there and a new arrest was made at the Commissioner's.

If there was no arrest made or the warrants didn't issue until they appeared before the Commissioner, if the Court please, and complaints were sworn to by the narcotics agents.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: They had already been of course early that morning and they've taken this man into custody insofar as the record shows.

In other words, the agents here, the testimony of the agents, I think is certainly contradictory to the record of the Commissioner.

Now, if it is the fact that they were not arrested, if Toy was not arrested, then how in the name of reason can the breaking in of his door be justified at 6:30 in the morning?

And the Solicitor concedes that the papers on the arraignment are ambiguous with respect to whether the arrest was accomplished on his premises or thereafter at the Commissioner's office where a warrant was issued because these arraignment papers clearly show that the arrest was accomplished with a warrant and not without a warrant contrary to the testimony given at the trial by the agents in justifying the admissibility of all the evidence which went in.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I concede, Mr. Justice Brennan, that if an arraignment took place and if we accept this extra record fact that the confessions were admissible.

I will concede that, because I believe that an arraignment or representation of counsel or the release of the defendants breaks the chain of causality between the illegal police act and the subsequent evidence that is obtained.

Justice Felix Frankfurter: (Inaudible)

Mr. Edward Bennett Williams: There is not this --

Justice Felix Frankfurter: (Inaudible)

Mr. Edward Bennett Williams: There is not Mr. Justice Frankfurter, if you accept the fact that the agents went through a meaningless act in front of the Commissioner.

Justice Felix Frankfurter: (Inaudible)

Mr. Edward Bennett Williams: Oh, there would be no doubt as to the validity of arrest after the warrant was issued but it doesn't remove the cloud of doubt over the question with which we are concerned here as to whether or not the detention of these men was legal prior to their appearance before the Commissioner.

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: And I think if the Court please that there has been no answer to our position, no answer to our position that where you have unlawful detention here in violation of a constitutional right as we contend there was here.

Certainly, there is stronger reason for the exclusion of evidence obtained during that detention than there is in the Mallory line of cases where there was a violation of statutory --

Unknown Speaker: (Inaudible)

Mr. Edward Bennett Williams: The narcotics would not have been admitted nor would the statement of Toy that either narcotic could be found at his house.

And there would then be no corroboration whatsoever.

Our contention is now there is not corroboration sufficient to stand a conviction but all corroboration would be gone under that hypothesis.

We don't concede for the purpose of this that there was an arraignment because the record is silent on it, but if the fact, they represented by the Government, and I don't again say that for a moment that they are making their statement in good faith.

If that is accepted as a fact and I think all of the facts must be accepted with respect to the arraignment namely that an arrest was perpetrated at this time.

For these reasons, we respectfully ask that the -- the convictions of the petitioners in this case be reversed.

Thank you very much.

Print this transcript Transcript:

Argument of Edward Bennett Williams

Chief Justice Earl Warren: Number 36, Wong Sun and James Wah Toy, Petitioners, versus the United States.

Mr. Williams.

Mr. Edward Bennett Williams: Mr. Chief Justice, may it please the Court.

This case is here this morning for reargument.

I think it would be useful and helpful to the Court if I reset the factual backdrop against which the legal issues are framed at the very outset.

On June 4 of 1959, in the City of San Francisco, federal narcotics agents arrested one Hom Way at 2 a.m. in the morning.

He was found to be in possession of one ounce of heroin.

He was taken to Federal Narcotics headquarters in the City of San Francisco in the date of night and he was interrogated there through the night until at 5:30 a.m.

He stated that he had obtained the heroin, which was found in his possession, from a man named “Blackie Toy” who operated a laundry on Leavenworth Street in the City of San Francisco.

Federal narcotics agents then left narcotics headquarters accompanied by local police, they were altogether seven in number.

And they went to Leavenworth Street.

While six of them worked off in the distance, the federal agent --

Justice Arthur J. Goldberg: How far?

Mr. Edward Bennett Williams: Well, they were in different positions, Mr. Justice Goldberg.

Some were as far as 100 yards away but they were not within hearing of what took place subsequently at the door of the laundry if that's the thrust of your question.

Federal agent Alton Wong went to the door of a laundry designated as Oye's, O-Y-E-S Laundry at 1733 Leavenworth Street.

He rang the bell, and he beat on the door and he aroused the occupant who used the back of the laundry as his living quarters.

The occupant came to the door at approximately 6:30 in the morning and agent Alton Wong said, “I have come for my laundry.”

The occupant --

Justice Potter Stewart: Daylight, wasn't it?

Mr. Edward Bennett Williams: It was daylight in San Francisco, yes sir.

The occupant of the premises who turned out to be petitioner James Wah Toy in this case said to agent Wong, “The laundry opens at eight o'clock, come back then.”

At which point agent Wong flashed a badge and said, “I'm a federal narcotics agent.”

Petitioner Toy slammed the door and the record shows he hurried through the laundry back to his living quarters behind the laundry, at which point agent Alton Wong broke in the door and followed him in hot pursuit.

They ran back into the bedroom which was occupied by petitioner Toy, his wife and infant child, and there petitioner Toy reached into a night table opened the drawer at which point Alton Wong pulled his pistol, pulled out handcuffs, and placed petitioner Toy under arrest.

This arrest was effected without a warrant.

No warrant was issued in this case, search or arrest.

The other agent --

Chief Justice Earl Warren: What was in -- what was in the drawer?

Mr. Edward Bennett Williams: There was nothing in the drawer, Mr. Chief Justice.

In fact, the other agents then began a systematic search of the premises and the search uncovered no contraband of any kind.

Justice William J. Brennan: No weapons?

Mr. Edward Bennett Williams: No weapons, Mr. Justice Brennan.

Now, at this juncture, petitioner Toy was confronted with the accusation that had theretofore been made by him a -- against him by Hom Way, and I think it's a worthy of mention in passing that this significantly enough is the last we hear of Hom Way in this whole record.

He never appears as a witness.

There is no further reference to him in the trial transcript or at any stage in the record.

Justice John M. Harlan: Is there any claim on your part that Hom Way was illegally arrested?

Mr. Edward Bennett Williams: There's nothing in the record, Mr. Justice Harlan, to support an inference either way with respect to that fact.

Justice John M. Harlan: You're -- it's not part of your argument in other words.

Mr. Edward Bennett Williams: I make no argument with respect to Hom Way's arrest.

Justice John M. Harlan: -- Hom Way, as for that?

Mr. Edward Bennett Williams: No sir.

Justice Arthur J. Goldberg: Is this -- is Mr. Hom Way (Inaudible) to trial?

Mr. Edward Bennett Williams: No sir.

The sole witness produced by the Government at the trial was one Johnny Yee who turned out to be a recalcitrant witness testified to nothing incriminatory against the petitioners and was excused by the prosecutor.

Now, after petitioner Toy was confronted with these accusations, he denied that he had sold any heroin to Hom Way but he immediately stated, “I know where you can find some heroin.

There's a man named Johnny --” and he described his premises on Eleventh Avenue in the City of San Francisco.

He says, “He had some heroin in his apartment.

Whereupon the agents left the laundry on Leavenworth Street and they went to Eleventh Avenue to the place indicated by petitioner Toy and they entered those premises at approximately eight o'clock in the morning.

They went to the room in which Johnny Yee was sleeping.

They placed him under arrest and they recovered there 27 grams of heroin.

Yee was then taken to federal narcotics headquarters and Yee was interrogated by narcotics agents with respect to his source of supply whereupon Yee stated, “I received this heroin from James Wah Toy and from a man known to me only as “Sea Dog.”

The agents then went back to petitioner James Wah Toy and they asked him if he knew anyone known as “Sea Dog” and he said, “Yes, I know a man named Wong Sun,” who is referred to as “Sea Dog” whereupon he led the officers to the residence of Wong Sun on Franklin Street in the City of San Francisco.

The agents entered Wong Sun's house went upstairs to his bedroom where has was sleeping, he was placed under arrest, a systematic search was made at his dwelling house and no contraband was found.

This arrest was likewise effected without a warrant although it was effected in this instance at 10:30 in the morning.

Now --

Chief Justice Earl Warren: May I ask what was done with Toy in the meantime after the search of his place and others who were searched?

Mr. Edward Bennett Williams: Mr. Chief Justice, they were held under arrest and Yee was interrogated and of course it was his interrogation which produced ultimately the arrest of Wong Sun.

Now, the record is absolutely silent with respect to an arraignment of these petitioners.

Because of the fact that the Government made a statement in its brief wholly without record foundation that an arraignment had been made, when we were appointed in this case, we undertook to find out if there had been an arraignment.

And if the Court will recall at the end of the argument last April, we were asked to submit such documents as we had been able to recover which reflected the arraignment of Toy and Sun, and those were presented to the Court and I will have reference to them later on in my discussion of the evidentiary question here.

Sufficed to say at this time that statements were made by petitioner Wong Sun and by petitioner Wah Toy, they were transcribed by narcotics agents and they were presented to the petitioners for signature.

The petitioners refused to sign the statements, but ultimately, they became evidence at the trial, offered orally by the agents who took them.

Now, --

Justice Potter Stewart: But what were the circumstances under which the home of Wong Sun was entered?

They didn't break in there, did they?

Mr. Edward Bennett Williams: It wasn't necessary for them to break in because an occupant of those premises permitted them to enter, yes sir.

But they did go to his bedroom where he was sleeping and placed him under arrest and then made a systematic search of his premises.

There was not a breaking in this case, Mr. Justice Stewart.

Now, the petitioners were indicted for violation of Title 21 Section 174 of the United States Code which is that section which makes it a felony to conceal, to transport, to facilitate transportation, to buy or sell narcotics knowing them to have been illegally imported.

They were indicted in the first count for a conspiracy to commit this offense, Toy and Sun, and in the second count for the substantive offense itself.

The case came on for trial and it was the intention of the prosecutor to prove his case by calling the witness Yee and using the viva voce testimony of Yee.

Yee was caught.

Yee took the stand and Yee proved to be a recalcitrant witness.

He testified to nothing whatsoever incriminatory vis-à-vis either petitioner whereupon he was confronted with a statement that he had purportedly made previously and he was asked whether or not the facts as contained in that statement were true and he rejected them and described them as a pack of lies.

He was then excused from the stand and so it was necessary for the prosecutor to take a different tack to make a prima facie case.

He then undertook to make a prima facie case this way.

He showed the fact of the arrest of petitioner Toy.

He showed the statement made on the threshold of that arrest namely that narcotics could be found in Yee's apartment.

He then showed the arrest of Yee and the recovery of the narcotics in Yee's apartment.

He placed those narcotics physically in evidence and offered two statements made subsequently by the then defendants now petitioners which were offered as incriminating admissions and he rested.

Justice William J. Brennan: What was the substantive (Inaudible)

Mr. Edward Bennett Williams: The statements, Mr. Justice Brennan, we have printed in our supplemental brief.

In essence, James Wah Toy conceded that on several occasions he had driven petitioner Wong Sun to the premises of Johnny Yee and he conceded that narcotics were handed from Sun to Yee and that he himself had smoked some heroin on those visits.

With respect to petitioner Sun, Sun conceded that he had transported narcotics to Yee and had sold narcotics to Yee and that after the sale was consummated on each of several occasions that they had participated in a friendly smoke.

Now, with respect to the finding by the trial judge, he indicated that it was his disposition first of all to find the defendants guilty of the conspiracy count and not guilty of the substantive count but because the prosecutor represented, he would be more sanguine for purposes of appeal if the converse were done, the judge obliged -- obliged and he found them guilty of the substantive offense and not guilty of the conspiracy offense and ultimately that case was taken to the United States Court of Appeals for the Ninth Circuit, and that Court unanimously found that both arrests were effected unlawfully.

But two of the judges refused to attach any evidentiary consequences to the illegal arrest and so the convictions were affirmed.

And it's in that posture that the case is before this Court this morning.

Justice Potter Stewart: But this -- this was not a jury trial?

Mr. Edward Bennett Williams: It was not a jury trial, Your Honor.

Chief Justice Earl Warren: What happened to Yee?

Mr. Edward Bennett Williams: Yee was named, Mr. Chief Justice, in the conspiracy count but not as a defendant, as a coconspirator.

And the record shows that he was indicted in a separate -- in a separate case and that he entered a plea of guilty.

That's all that appears in the record on that case.

Justice William J. Brennan: Now prior to the conviction as I understand, you once said before, was that in respect of the grams, you say, of heroin found in Yee's bedroom?

Mr. Edward Bennett Williams: Yes sir, that's correct.

Now, it is our contention that the arrests of both petitioners were unlawfully effected.

There is no finding by either lower court that the arrests were lawful.

Even the trial judge avoided that finding because you can search the record and you find no rationale for his admission of the contested evidence into the record at no point does he say the arrest were lawful.

The Court of Appeals for the Ninth Circuit found unanimously that the arrests were unlawfully affected.

Now, the Government seeks to go behind those findings and have the arrest validated by this Court so that the evidentiary question may be avoided.

Now, with respect to the arrest, the Government does not contend or indeed couldn't contend reasonably that on the mere statement of Hom Way federal agents had the right to go place petitioner Toy under arrest.

The record is very clear that Hom Way was an untested informant.

He had never before given information to federal narcotics agents.

He made a statement when he was in custody.

And the Government does not allege that this constituted a probable cause for arrest.

What does the Government say?

The Government contends that probable cause arose when Alton Wong went to the door of Oye's Laundry, knocked on the door and when the occupant of those premises fled through the laundry back to his living quarters.

That contends the Government provided the indispensable link to making probable cause for an unlawful arrest.

Now --

Justice John M. Harlan: I thought the -- I thought they conceded that he might be his guest.

I thought you said that a fortiori when the (Inaudible) happened.

Mr. Edward Bennett Williams: At page 28 of the Government's brief, I believe that the language, Mr. Justice Harlan in the second paragraph, is a basis for what I've said that they are not making the contention that Hom Way's statement standing alone was sufficient to justify the arrest.

Now, I think it's necessary to look at this episode in its proper frame of reference.

First of all, at the time that the agents went to Leavenworth Street, they had no reason to believe that the laundry, which Alton Wong approached, was the laundry referred to by Hom Way, it was a different name, it was Oye's laundry.

Hom Way had not given the address.

Leavenworth Street is one of the longest streets in San Francisco, presumably, insofar as this record is concerned, those agents were engaged in a systematic investigation of Chinese laundries on Leavenworth Street.

And so when they knocked at the door and the occupant came, there was no reason to believe that the man who opened that door was the ‘Blackie Toy' referred to by Hom Way and they didn't ask.

Alton Wong didn't asked are you -- are you ‘Blackie Toy' or are you Mr. Toy?

Instead of that, not knowing that he was at the premises referred to by his untested informant, not knowing that the occupant who answered the door was the ‘Blackie Toy' who was referred to by his untested informant, he undertaken -- undertook immediately to perpetrate a ruse on him.

And instead of saying, “Are you Blackie Toy?

I have come here to ask you questions.

I'm a narcotics agent.”

He said, “I've come here to get my laundry at 6:30 in the morning.”

The record shows --

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: Yes.

Justice Arthur J. Goldberg: (Inaudible)

Mr. Edward Bennett Williams: As I read this, the Government says whether or not it would constitute probable cause for an arrest the information given by Hom Way to the agent was entitled to be given considerable weight.

It had sufficient earmarks of credibility indeed to require investigation.

What I said Mr. Justice Goldberg was that the Government does not contend that this was sufficient to justify the arrest and I think that is a fair statement.

They do not contend that that standing alone was sufficient to justify the arrest.

They say that something else provided the sine qua non of probable cause for the arrest and they do not contend or I think they could not contend in logic and reason that Hom Way's statements standing alone was sufficient.

Justice John M. Harlan: Or they say -- that they don't have to stand on that position.

Mr. Edward Bennett Williams: And they don't stand on it.

Justice John M. Harlan: Oh, I said that, is that wrong?

Chief Justice Earl Warren: Is there any place in the Government's brief where they do specifically claim that the information given by Hom Way was probable cause?

Mr. Edward Bennett Williams: No sir, no sir.

Chief Justice Earl Warren: This is the only thing they have to say about it.

Mr. Edward Bennett Williams: Yes sir.

Now, if the Court please, I was addressing myself to the question of the illegality of Toy's arrest.

And I've said that at the time that Toy opened the door, they didn't know he was the ‘Blackie Toy' referred to as Hom Way.

They didn't even know they were at the right laundry.

They didn't ask him, they attempted to perpetrate the ruse on him and this was a man about whom the record shows he had little fluency in the English language, that so little fluency in the English language that it was necessary through the course of the trial to have an interpreter present.

He had so little fluency in the English language that it was necessary for a Chinese agent to take the statement and to advise him with respect to its meaning.

Now, it was this man first of all who was made the object of a ruse by an agent knocking at his door at 6:30 in the morning.

Justice Tom C. Clark: The agent was Chinese, wasn't he?

Mr. Edward Bennett Williams: The agent was likewise Chinese, yes sir.

But the -- the records, Mr. Justice Clark indicates the conversation at the door was a conversation in English.

Now --

Justice Tom C. Clark: (Inaudible) that knowing he had the right man and knowing he's at the right laundry (Inaudible)

Mr. Edward Bennett Williams: Mr. Wong was, yes sir.

Justice Tom C. Clark: (Inaudible)

Mr. Edward Bennett Williams: No, nothing in the record to support that he knew the man that he was talking to was Toy and he didn't ask him.

He simply broke in the door and went through when the door was slammed.

Justice Tom C. Clark: Does the record shows that he went to any other laundry?

Mr. Edward Bennett Williams: The record is silent on that.

Justice Tom C. Clark: What day of the week was it?

Mr. Edward Bennett Williams: The day or the week is not shown in the record.

It was June 4, 1959.

I -- the previous June 2nd was identified as a Tuesday, so was it was Thursday morning.

Now, I think it's useful to look at the record and see the state of mind of the man who made the arrest because I think it's readily inferable that he didn't think he had probable cause for making arrest when he went to that door that morning.

The fact is he testified as follows at page 53 of the record.

At the top of the page he says do you recall -- he's asked, “Do you recall breaking the lock or breaking the door in anyways?”

He says, “I didn't break the lock.

”Of course, that has rather mendacious characteristic, I think, in the light of the fact that the Government subsequently stipulated that the door was broken opened that morning and that appears as a stipulation footnoted in the opinion of the Ninth Circuit Court of Appeals at page 136.

Then he's asked, “You chased him down the hallway into his bedroom?”

“Yes sir.”

“Put handcuffs on him and placed him under arrest, is that right?”

“Not until he put his hand into the nightstand drawer.”

“Then you put the handcuffs on him and placed him under arrest and had drawn your pistol just before that, is that right?”

“I had drawn the pistol because he reached into the drawer.

I didn't know what he had in it.”

Justice Potter Stewart: But he -- just a few minutes earlier and testified that he assumed and thought that what he was reaching for was a gun in that night table?

Mr. Edward Bennett Williams: That's right.

But I -- but he doesn't -- he doesn't undertake I think it's inferable from the record that his basis for arrest in his mind came at such point as there was an overture made to the nightstand by petitioner Toy.

Now, I get --

Justice Tom C. Clark: I thought it was when he flee?

Mr. Edward Bennett Williams: I'm sorry?

Justice Tom C. Clark: I though it was when he flee, it's when he went after him?

Mr. Edward Bennett Williams: Well, he went after him then but he doesn't say at any point Mr. Justice Clark that he was going after him to arrest him at that time.

In fact, when he's asked about the arrest he says, “Yes, I arrested him when he reached for the nightstand drawer.”

Now --

Justice Tom C. Clark: I'd like to ask you, if we go back in a moment, do you mind?

Mr. Edward Bennett Williams: No sir.

Justice Tom C. Clark: (Inaudible)

Mr. Edward Bennett Williams: I think that before an arrest can be made without a warrant by a federal agent that the statement given by the informant must have indicia of credibility whether it comes from the fact that the agent has had prior experience with the informant or whether there are some other criteria of reliability.

In the --

Justice Tom C. Clark: Is it just one facet or is that the total ground?

Mr. Edward Bennett Williams: I don't think it's just one facet but there is no facet here in this case.

There is nothing to support in this record the fact that the informant was worthy of belief in this frame of reference.

Justice Tom C. Clark: He told then that he thought he was Toy.

Mr. Edward Bennett Williams: That's all.

Justice Tom C. Clark: And that --

Mr. Edward Bennett Williams: From Blackie Toy and Blackie Toy -- and no place in this record is equated with James Wah Toy, no place.

Justice Tom C. Clark: But your contention that the -- he told him that he'd bought it from Blackie Toy and he had no right to go to Toy's place?

Mr. Edward Bennett Williams: I think the appropriate method of procedure in this case where there was no reason to believe that petitioner Toy would flee where there was no reason to believe that there would be suppression of evidence because Way was arrested at 2 a.m.

There was no reason to believe that that intelligence had been communicated to Toy.

The proper way to proceed in this case was for the agents to have taken Hom Way before a Commissioner and had him swear to a complaint on the basis of which a warrant for the arrest of Blackie Toy could have issued.

Justice Tom C. Clark: I wonder if, under your contention, maybe summon could've been issued then.

Mr. Edward Bennett Williams: I think that if there was a statement sworn to by Hom Way that that would be a probable cause for issuing a warrant against Blackie Toy who I presumed could have been appropriately described by Hom Way.

I think it --

Justice Byron R. White: (Inaudible)

Mr. Edward Bennett Williams: Oh, I think that adds a very important factor to what is -- is here.

Justice Byron R. White: (Inaudible)

Mr. Edward Bennett Williams: Yes.

Justice John M. Harlan: Or your real contention is the absence of an oath makes a difference.

Mr. Edward Bennett Williams: In this -- in this case, I think it does, yes sir.

Justice John M. Harlan: But as I understand Justice Clark, that as long he brought the Commissioner out of bed, to wake him out of bed at two o'clock in the morning, he would have had Hom Way swear everything he said or he has told, that he told the agent, it would have been the duty of the Commissioner to issue the warrant?

Mr. Edward Bennett Williams: I think if a warrant could reasonably have been issued against Blackie Toy described by Hom Way, I do not suggest for a moment that I'm conceding that that was an appropriate warrant for the man who is subsequently arrested without other identifying marks.

Justice Byron R. White: Do you think that your (Inaudible)

Mr. Edward Bennett Williams: What I think -- what I think Mr. Justice White is that they did what any good investigator would do.

They investigated every Chinese laundry in Leavenworth Street, and there are many.

And they ended up in Oye's Laundry and they found a man whose name is Toy and never identified as Blackie Toy in this whole record.

Justice Byron R. White: (Inaudible)

Mr. Edward Bennett Williams: Alright, I don't know what was in their minds.

Justice Byron R. White: (Inaudible)

Mr. Edward Bennett Williams: I'm -- I have to argue this case from the record, yes sir.

Justice Tom C. Clark: I understood you to say that, at 5:30, Hom Way -- is that Hom Way?

Mr. Edward Bennett Williams: Way.

Justice Tom C. Clark: -- who made a statement (Inaudible)

Mr. Edward Bennett Williams: Yes sir.

Justice Tom C. Clark: And that they looked through all the laundry shops at six o'clock.

Mr. Edward Bennett Williams: 6:30 a.m.

Justice Tom C. Clark: It's just an hour, I think.

Mr. Edward Bennett Williams: 5:30 to 6:30.

I -- I don't know how many laundries they went through, there isn't anything in the record but they certainly -- the records supports the inference that they were engaged in a systematic investigation of the laundries because the record is very clear that Way was unable to say where on Leavenworth Street the laundry was.

Justice Byron R. White: Toy was arrested at 6:30?

Mr. Edward Bennett Williams: 6:30 a.m.

Now --

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: Yes sir.

Justice William J. Brennan: Can you make any point of (Inaudible) in relation to the narcotics agent entry, carrying on (Inaudible)

Mr. Edward Bennett Williams: Oh, yes.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I was just about to say that before the last question, that under the Miller decision this Court in 1957, this Court applied the standards that set out in 3910 of Title XVIII with respect to the right of breaking to serve a search warrant.

It applied the same criteria to the right of breaking to arrest without a warrant.

And it said that it is necessary first of all to state the authority and the purpose of the man who is about --

Justice William J. Brennan: What's about 'the authority'?

Mr. Edward Bennett Williams: The authority was stated and the purpose was misstated.

It was not only not stated, it was deliberately misstated because instead of advising the occupant of these premises that they were -- that he was a narcotic agent there to investigate a charge.

He said, “I'd come for my -- to get my laundry.

Justice William J. Brennan: But after that, was it not -- that he identified himself, was it not?

That's he's investigating, he's a narcotics agent or is that the way he just asked him?

Mr. Edward Bennett Williams: But he did, first of all, he said I've come to get my laundry.

Toy replied the laundry opens at eight o'clock and undertook to close the door and he showed his badge of authority and said, “I am a narcotics agent.”

Toy slammed the door, hurried through the laundry.

No statement was ever made with respect to his purpose.

Justice William J. Brennan: Well, does the record show after the (Inaudible) did he had any opportunity to say why he was there?

As I understand it --

Mr. Edward Bennett Williams: He had a clear --

Justice William J. Brennan: -- the door was really slammed in Yee's place.

Mr. Edward Bennett Williams: He had a clear opportunity to say why he was there, when he aroused the occupant by knocking at the door and ringing the bell at 6:30 in the morning.

He had a chance to say, “I'm a narcotics agent, here to investigate an accusation or some information that we have.”

Justice Tom C. Clark: Of course, the door was never opened.

Mr. Edward Bennett Williams: Well, the door was opened.

He had a chance to say it when the door was opened, instead of perpetrating of a ruse on the occupant at 6:30 in the morning if --

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: Yes sir, yes sir.

He had a chance to communicate readily with the occupant of the premises.

Now, the Government with respect to Wong Sun's arrest makes this argument.

Insofar as the record shows Johnny Yee was likewise wholly untested informant.

He made a statement with respect to Sea Dog subsequently an investigation revealed that Sea Dog is Wong Sun and the arrest was made and the Government says we had two witnesses with respect to Wong Sun.

We had Johnny Yee and we had petitioner James Wah Toy.

Well, of course I think the suspicious -- the suspiciousness of this argument can be demonstrated from a simple analogy.

It's as though the Government has one witness who says A equals B, and they have another witness who says B equals C, and they contend that they have two witnesses who say that A equals C.

No warrant was obtained here.

There was certainly no lack of opportunity to obtain a warrant at 10:30 in the morning.

His premises were invaded, he was placed under arrest and he was taken off in what we contend was unequally illegal arrest.

Now, what are the consequences that flow from this?

This Court has held time and again that a non-lawful arrest effected by federal law enforcement officer is a violation of the Fourth Amendment, it's a violation of the right of the citizen to be free from unreasonable seizures of this person, it held us in the line of cases most illustrative of which were the Giordenello and the Henry cases.

Again, this Court for almost a half a century has attached an evidentiary consequence to a violation of the Fourth Amendment beginning in the Weeks case that held that any physical evidence obtained as a result of a violation of the Fourth Amendment should be excluded.

Now, the federal exclusionary rule has for its purpose the deterrence of the lawless law enforcement.

I suggest to the Court that so long as any derivative benefits or fruits are allowed to law enforcement officers for lawless conduct, that the federal exclusionary rule cannot be expected to work because there will be no -- there will be no reason for compliance because no other sanctions are ever imposed with respect to violations of Fourth Amendment rights of the citizens.

And I suggest that if in fact the federal police as a result of an illegal arrest may get threshold statements from the accused which can be admissible in the federal proceeding, later on a criminal proceeding, there'll be no reason not to continue unlawful arrest.

The Court has been consistent in striking down physical evidence obtained as a result of a Fourth Amendment violation.

It has been consistent in striking down visual evidence obtained as a result of a Fourth Amendment violation.

Last year in Silverman against the United States, this Court struck down audible evidence obtained as a result of a Fourth Amendment violation.

And it was following what I contend was an unbroken chain of federal jurisprudence on this subject because in 1940 when this question first arose in the District of Columbia Circuit, Judge Vinson and Chief Judge Groner and Judge Edgerton unanimously agreed in Nueslein against the United States at 115 F.2d, that where a police made an illegal entry on the premises and interrogated the accused and got an incriminatory admission from him on his own premises that that statement could not go into evidence in the subsequent criminal prosecution.

Prior to that time in a decision by Judge Learned Hand speaking for the Second Circuit in Somers against the United States, we had an almost identical factual situation.

Agents of the Alcohol Tax Unit entered the apartment of Somers.

He was not there.

The entry was illegal.

They interrogated his wife as a result of that interrogation, they found Somers' whereabouts where he would be in 20 minutes, they went -- they found him with alcohol, they arrested him.

Second Circuit speaking through Judge Hand found that statement to have been inadmissible because made as the result of an illegal arrest and struck down the subsequent evidence as being fruit from the poisonous tree.

Now, how does the Government respond to this line of cases?

Justice Potter Stewart: Now doesn't -- I think you've said it but you haven't emphasize it.

The admission or confession has to be the result of the illegality of the arrest, does it not, under those cases?

And Nueslein case was a drunk and driving case, wasn't it?

Mr. Edward Bennett Williams: It was, yes sir.

Justice Potter Stewart: Doesn't there have to be a showing that the -- that the confession or the admission was -- resulted from the illegality of the -- of the personal seizure or arrest?

Mr. Edward Bennett Williams: The Government contends that the chain of causality becomes so attenuated by virtue of the fact that the statement of Toy made on his premises on the threshold of his arrest was a voluntary statement, that it becomes admissible notwithstanding the decisions in this line of Somers.

Now, I think we have to --

Justice Potter Stewart: Of course the -- implication of somebody else that if we say, “Well, I haven't got any, but John Smith has it.”

Mr. Edward Bennett Williams: Well whatever --

Justice Potter Stewart: That's not a confession, that's not an admission.

Mr. Edward Bennett Williams: I think it makes no difference so long as the statement, which the Government seeks to offer at a subsequent time in a criminal prosecution is incriminatory --

Justice Potter Stewart: It certainly makes a difference --

Mr. Edward Bennett Williams: -- in the admission.

Justice Potter Stewart: -- under the self-incrimination insofar as the Fifth Amendment is applicable and I'm -- I have in mind that Mr. Justice Black's concurring opinion in Mapp, for example --

Mr. Edward Bennett Williams: But --

Justice Potter Stewart: -- insofar as what the statement does is to implicate somebody else that takes the Fifth Amendment out of the case, doesn't it?

Mr. Edward Bennett Williams: It may take it out of the case, yes sir.

In this instance, may I say to you in response to your direct question, Mr. Justice Stewart, that this Court as you will know has held in the Mallory, McNabb, Upshaw line of cases.

That where a statement is made during a period of illegal detention and that case as a result of a violation of Rule 5 prolonged detention without taking the accused before a magistrate.

It makes no difference whether the statement might be voluntary or involuntary, it struck down, why, because there has been a violation of a statutory right of an accused.

Now, I think consistency demands that where you have the violation of a constitutional right namely a violation of the Fourth Amendment, you had illegal detention ab initio because the very fact of the arrest shows that the detention from the beginning was unlawful that a statement made during that unlawful detention should be struck down as being inadmissible especially in the light of the fact that this particular statement was made right on the threshold of the arrest when the coercive influences of an unlawful arrest certainly cannot be regarded as having been broken and there was no demonstration by the Government or attempt to demonstrate by the Government that the coercive influence of an unlawful arrest consummated at 6:30 a.m. in the morning at pistol point with handcuffs in the bedroom of a man where his wife and child were present did not have a coercive influence on his statement or his subsequent expression.

So it seems to me that we're dealing here with a constitutional right which makes the argument even stronger than the argument that was advanced and sustained by this Court in Mallory, Upshaw and McNabb.

Justice William J. Brennan: I believe the actual statement he made at that time, however, standing alone was exculpatory not inculpatory, wasn't it?

Mr. Edward Bennett Williams: It was designed, I think, Mr. Justice Brennan, to be exculpatory.

As it turned out it is the major piece of evidence upon which the Government relies to support the conviction in this case so that I have to say that it's taken on the characteristic in the Government's mind as being a very inculpatory statement.

Justice William J. Brennan: Well, it led to a chain of things.It then it led to the search of these premises and the subsequent statements, I gather, that those some -- both these petitioners ultimately made.

Mr. Edward Bennett Williams: Yes sir.

Justice William J. Brennan: And you -- you have to stand or fall on its admini -- inadmissibility if you know of other things, which followed in its wake, were also to be inadmissible, don't you?

Mr. Edward Bennett Williams: I think that's true.

But the -- but the fact is that the statement which was made was a statement to this effect.

Number one, Johnny has narcotics.

I saw them there last night.

And Johnny lives and the designation was made as to the place of his residence.

So that regardless of what the intent of the speaker may have been it was an incriminatory statement and so used by the Government in the subsequent proceeding.

Justice Tom C. Clark: I thought they use it as a lead.

Mr. Edward Bennett Williams: They used -- they offered this as evidence Mr. Justice Clark.

Justice William J. Brennan: Let's see -- that is evidence, “I saw them there last night that that wouldn't involve participation by the speaker --

Mr. Edward Bennett Williams: It's why I'd say --

Justice William J. Brennan: -- in a crime.

Mr. Edward Bennett Williams: It might very well be incriminatory and that it did as it did in this case lead to a chain of evidence which produced his indictment and subsequently his conviction.

Justice William J. Brennan: Well, would that, standing alone, have been evidence or not?

Mr. Edward Bennett Williams: An evidence in the --

Justice William J. Brennan: -- before the conviction.

Mr. Edward Bennett Williams: That statement?

No sir.

No sir because it was not throughout under your hypothetical question.

Justice Tom C. Clark: Do narcotics agents have any --have any statutory power of arrest under these?

Mr. Edward Bennett Williams: No sir.

The language which authorizes their arrest statutorily recites that they have a basis for arresting without a warrant when they have as I recall the statutory -- reasonable grounds for believing that a felony has been committed and that the arrested party has committed a felony.

It's language that differs from the constitutional language of probable cause, reasonable grounds but I think it's been equated with the -- with probable cause.

Justice William J. Brennan: Of course, because that difference from Nueslein, isn't there?

There's that difference between the statement -- the Nueslein statement, as I remember, that was a collision of a taxicab --

Mr. Edward Bennett Williams: -- a private car.

Justice William J. Brennan: There's no question that the statement there taken was in effect the confession of drunk and driving, was it?

Mr. Edward Bennett Williams: I think not, Mr. Justice Brennan, because all he said at the time of the illegal entry into his premises is that he was driving the cab.

He didn't concede anything with respect to --

Justice William J. Brennan: He was given then -- gave him a drunk and dri -- drunkenness test or something like that?

Mr. Edward Bennett Williams: They give him a test subsequently back at the station.

But he didn't make any concession with respect to alcohol.

Now, I don't contend that the mere fact of an unlawful arrest makes everything that flows from it, thereafter -- all evidence unearth, thereafter inadmissible.

What we say is that where there is an unlawful arrest, the burden shifts to the Government to show that the chain of causality was broken and it can be broken on a number of ways as I would see it by release, by conference with counsel, by arraignment.

But there was no showing in this record that there was ever a release or conference with counsel or that there was an arraignment except insofar as it was unearth at the last argument.

And that the last argument of this case, we presented these documents which purport to show an arraignment but there's no showing here that there was any proper arraignment because there's no showing that there was an interpreter present, as was necessary at the time of the trial, so that there was some communication to this man of their rights which is the sole purpose of the arraignment.

And of course there is no showing that there was counsel present and most significant with respect to these documents, there is a showing on the face of the documents that after the petitioners were taken to narcotics headquarters, and before a Commissioner, then a warrant for their arrest was issued which I suggest to the Court is most unorthodox and unusual if the arrest had been consummated lawfully in the first instance.

There was no need to go through a meaningless act back at the Commissioner's office of issuing a warrant for their arrest on the statement of Federal Narcotics Agents.

Justice Hugo L. Black: Mr. Williams, you said when the -- an unlawful arrest is shown, the burden shift to the Government, are you saying by that that the burden is on the defendant to show that the arrest was unlawful?

Mr. Edward Bennett Williams: No, no sir.

I don't -- I think in the first instance where you have an arrest and the defendant comes forward and challenges the validity of the arrest, of course it's necessary for him to produce evidence to show that the arrest was then invalid.

That was done here and it was done at the trial.

Justice Hugo L. Black: That the arrest was what?

Mr. Edward Bennett Williams: Was then illegal in the first instance.

The burden still remains, of course, I think if we're talking about the burden of proof as distinguished from the burden of proceeding with the evidence on the Government to validate the arrest.

But now, in this instance, there was a showing of the illegality of arrest.

Now, the Government --

Justice Hugo L. Black: But there was evidence that tended to show or do you mean a presumption --

Mr. Edward Bennett Williams: I believe that the evidence showed that the arrest was illegal, Mr. Justice Black.

I believe that the finding of the Court of Appeals was proper that the arrest to both Wong Sun and James Wah Toy were illegal.

Justice Hugo L. Black: Is there any other questions that crucially supported your concern except that one, as to whether circumstances here, shown in the evidence, the arrest was legal or illegal, does that settle your controversy?

Mr. Edward Bennett Williams: The finding by the Court of Appeals?

Justice Hugo L. Black: Finding by anyone, is that the crucial element in deciding this case as to whether or not the evidence, like I said, there can be an inference --

Mr. Edward Bennett Williams: Yes.

Justice Hugo L. Black: There should be an inference found that the arrest was unlawful.

Mr. Edward Bennett Williams: I think if you start off with the premise, Mr. Justice Black, that you have an unlawful arrest that any statements made by the --

Justice Hugo L. Black: I understand that, but I'm starting back behind in the statement.

Is it -- suppose this arrest was not unlawful --

Mr. Edward Bennett Williams: Yes sir.

Justice Hugo L. Black: What about your case now?

Mr. Edward Bennett Williams: If the arrest was lawful, then the evidence would be admissible.

Justice Hugo L. Black: And that's it, it's the only issue in the case?

Mr. Edward Bennett Williams: Unless we get into this problem of statements made vis-à-vis the arraignment and the time of arraignment, but I would have to say that if this Court finds that the Court of Appeals was wrong and that the arrest were lawfully made of Wong Sun and Toy, then certainly I could not contend in logic that the statement made by Toy in his premises and the subsequent follow-up investigation which produce the narcotics at Yee's would be inadmissible.

Justice Arthur J. Goldberg: Was there an inadmissible argument made that the unlawfulness of that corroboration with the statement does have --

Mr. Edward Bennett Williams: Yes sir.

I haven't --

Justice Arthur J. Goldberg: -- would that hold that the (Inaudible)

Mr. Edward Bennett Williams: Withhold -- if all the evidence were admissible, that argument still obtains, yes sir, and I want to address myself to that in the last few moments I have.

But the point that I have tried to make here is that we aren't contending that the mere unlawfulness of the arrest thereby makes all the evidence produced by the defendant thereafter for all times sacrosanct and inadmissible because that chain of illegal activity can be broken by as released by his arraignment or by conference with counsel.

Now, with respect to the statements that were offered, it's been axiomatic in our jurisprudence that an uncorroborated confession cannot support a conviction.

Likewise, axiomatic that in any criminal case all of the elements that the offense must be proven and they must be proven by extrinsic evidence of by corroborated admissions.

Now, in this particular case assuming arguendo that all of the evidence was admissible, there is still no corroboration in this case of possession by either Wong Sun or by petitioner Wah Toy apart from their own statements in the matter.

Now, possession becomes the heart of this case because it is on de facto position that the statute creates a presumption and possessions unexplained that there was transportation, sale, concealment and purchase and if there is no possession, there is no basis for inference or presumption that any of these elements of the offense were present.

Now, with respect to petitioner Toy, there is not only no independent evidence of the fact that he ever possessed a narcotic.

In fact, the confession doesn't concede possession of a narcotic.

The confession simply concedes a transportation of Wong Sun to the home of Johnny Yee.

In the case of Wong Sun, there is no independent evidence in this whole record to support an admission of possession of narcotics.

The possession was found in Johnny Yee, the presumption that is created by statute authorizing the inference of the other elements of the offense, works against Johnny Yee certainly but there cannot be such an inference or a presumption made against either petitioner James Wah Toy or petitioner Wong Sun because there is no evidence apart from their own statements in the manner that they ever possessed and accordingly, that they ever transported, that they ever concealed, that they ever sold, that they ever purchased, and a fortiori that they had any knowledge of illegal importation of the heroin in question.

And so apart from the Fourth Amendment question, on the illegality of the arrest, apart from the federal exclusionary rule of question, I suggest to the Court that these convictions must fall because of the failure of the Government's proof to support the admissions with sufficient extrinsic evidence aliunde confessions in the case.

Justice John M. Harlan: Did the Court of Appeals deal with that contention?

Mr. Edward Bennett Williams: Yes sir.

Justice John M. Harlan: They overruled you on that, didn't they?

Mr. Edward Bennett Williams: Yes sir.

Chief Justice Earl Warren: Mr. Doolittle.

Argument of J. William Doolittle

Mr. J. William Doolittle: Mr. Chief Justice, may it please the Court.

For all the drama of this case some of it quite real, some of it less clearly so, it is easy to lose sight of the precise questions involved.

Petitioners' primary contentions are two in number.

First, that most of the evidence on which the Government's conviction rested was attained as a result of one or more unlawful arrests.

Secondly, that the detailed confessions of the two defendants were not sufficiently corroborated by outside evidence.

Now, the first of these points relates to a course of events that can be very briefly summarized in this way.

First, petitioner Toy was arrested, illegally, as the petitioners contend and at that time made a statement implicating one Yee, then Yee was arrested surrendered a quantity of narcotics and made a statement implicating Wong Sun, then Wong Sun was arrested again illegally according to the petitioners.

And then subsequently after arraignment both Yee -- both he and Toy made the confession that I've heard --

Justice John M. Harlan: It does go down this chain reaction names, is Wong Tang the same as Sea Dog?

Mr. J. William Doolittle: Wong Sun is the same as Sea Dog.

Justice John M. Harlan: And that's Wong Sun?

Mr. J. William Doolittle: That's right.

That is very similar.

I may go into this in a more detail and I'll certainly cover that point.

But Toy statement implicating Yee and the Narcotics surrendered by Yee and then the admissions or the confessions of Toy and Wong Sun after arraignment were all admitted into evidence and in each instance over the objections of petitioners.

So petitioner's first point raises two questions; first, whether the arrests of petitioners were lawful and if not whether the evidence to which petitioners objected or was the product of that unlawfulness so as to render them inadmissible.

Now, the legal standard for a narcotics agent to arrest without warrant as established by 26 U.S.C. 7607 has reasonable grounds to believe that person to be arrested has committed or is committing a Narcotics offense.

This Court in the Draper case in 358 U.S. ruled that the reasonable grounds of that statute is the equivalent of the probable cause for the Fourth Amendment.

This standard has been articulated by the Courts to mean that all of the facts and circumstances taken together must be sufficient to warrant a reasonable and experienced peace officer in believing that an offense has been or is being committed.

And that it is in these terms we submit that this case must be approached.

The conduct we're inquiring into is that of federal law enforcement officers doing their conscientious best to control a vicious and elusive vice, a narcotics traffic, and as we consider the events that took place on the morning of June 4th, 1959, at each stage of the way we must ask ourselves, “What was it reasonable for this men to do?”

Indeed, I urged each member of this Court to ask himself at each stage what he would have done, what alternatives he would have seen as available to him.

Justice John M. Harlan: Is there anything in the record indicating whether or not these two petitioners had been convicted in narcotic offenses before?

Mr. J. William Doolittle: Wong Sun had been, yes.

That's in the record.

Justice John M. Harlan: It's in the record?

Mr. J. William Doolittle: Yes, that's right.

That was stipulated.

Justice John M. Harlan: Anything to show that the agents knew that back before --

Mr. J. William Doolittle: No, there is none.

No direct indication of that, Your Honor.

Between 5:30 and six o'clock in the morning on this particular morning, a federal narcotics agent was told by an informant that he had purchased narcotics the previous day from Blackie Toy at a laundry on Leavenworth Street.

Now, this was not an anonymous phone -- phone call, it wasn't a whispered tip on a street corner.

It was, we submit, information with substantial indicia of reliability.

It was given at the Narcotics Bureau Office by one Hom Way who was then under arrest having been found in the possession of narcotics.

Although -- though this was the first he had ever given information on narcotics traffic to the agent, the agent had known him for six weeks and the agent testified a trial to his belief that Hom Way was reliable.

The fact that Hom Way was under arrest meant of course as he no doubt knew that the information would be checked out, and he would be confronted with any inconsistency and we submit that this element provides a substantial element of reliability to Hom Way's information.

Justice Arthur J. Goldberg: Mr. Doolittle, the Government position is that issue of (Inaudible) warrant against the law?

Mr. J. William Doolittle: The Government hasn't taken a position on that as Mr. Justice Harlan suggested because it doesn't feel it has to.

Justice Arthur J. Goldberg: What do you think of that?

Mr. J. William Doolittle: I think that in view of the indicia that I'm now suggesting, that it might have been that -- it might have been reasonable for the agents to try but --

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: Well, the only thing we can suggest as far as that concern is that this agent had been cautioned, felt that he didn't have enough to go on.

I'll cover that in just a moment.

Justice Hugo L. Black: Well, that's two o'clock in the morning, wasn't it?

Mr. J. William Doolittle: Well, at this point it was about 5:30 or 6:00.

Justice Hugo L. Black: Well, what time did the United States Commissioner opened their office?

Mr. J. William Doolittle: I would guess it's probably around 8:30 or 9:00, but I don't know that for sure.

Now, I'd like to suggest one other element that must be taken into account in assessing the reliability of Hom Way and that's the fact that he was actually found in the possession of narcotics.

This corroborated a story that he'd gotten these narcotics from Blackie Toy.

If an informant is found and makes a statement that he buys narcotics from someone and has no narcotics, of course that is that much more likely that he's just doing this out of spite or for some other such reasons.

Now, --

Chief Justice Earl Warren: Do you consider that as a matter of law that the fact that police found this man to be a narcotic violator and in possession of narcotics makes him a reliable informer?

Mr. J. William Doolittle: No, certainly not as a matter of law, Your Honor.

Chief Justice Earl Warren: Well, what was it besides that fact that that would make him a reliable informer?

Mr. J. William Doolittle: Well, we submit that the agent who was able to watch him, in fact had been watching him for six weeks, certainly had to take this information, that it will --

Chief Justice Earl Warren: What count?

Watching him if he was a narcotics violator?

Mr. J. William Doolittle: We assumed that, yes --

Chief Justice Earl Warren: Will that --

Mr. J. William Doolittle: -- the record doesn't show.

Chief Justice Earl Warren: -- would that tend to increase his reliability?

Mr. J. William Doolittle: Well, he still was able to watch the agent -- watch the individual and see what kind of people he associated with, and it's difficult to know or just exactly on what the agent based his feeling that the individual was reliable.

These things are highly intangible.

Chief Justice Earl Warren: Well, let's just take the record which we're dealing with here with the fact that this man had been suspected of being a narcotic violator for six weeks by this officer and then he was arrested and found to be a narcotic violator with narcotics in his possession, would all of that established his reliability as an informer?

Mr. J. William Doolittle: I wouldn't say it would establish his reliability or I'd say that those were things that the agent should take into account among all of the circumstances to decide whether he should act on this information.

Chief Justice Earl Warren: Yes, now --

Mr. J. William Doolittle: That will --

Chief Justice Earl Warren: -- tell us if you please -- tell us if you please what else there is in the record to establish the reliability of this Hom Way?

Mr. J. William Doolittle: And nothing more than what I've indicated, Your Honor.

Chief Justice Earl Warren: Just that?

Mr. J. William Doolittle: That's the extent of it.

Chief Justice Earl Warren: Then, if that is all there is in the record, you would not say that that constituted a probable cause, would you?

Mr. J. William Doolittle: Well, considering the ways in which we think it was corroborated, yes.

We think that it might have been probable cause.

Chief Justice Earl Warren: Would you mind telling us in what ways it was corroborated?

Mr. J. William Doolittle: Well, I -- I just referred to two items.

The fact -- well, it's corroborated in his possession.

He's saying that he got the narcotics from a certain source.

It is tends to be corroborated by his possession of narcotics.

And secondly, the fact that he's under arrest and knows that that agent is going to go out, check up the information and come back and then presumably it will go so much the worst for him, that hasn't checked out.

Now, we submit that this adds a significant measure of reliability.

But as I say, we're not -- it's not necessary for the Government to contend and I prefer not to contend that this did constitute -- constitute a probable cause.

Chief Justice Earl Warren: Very well.

We can eliminate that part from the case then, can't we?

Mr. J. William Doolittle: No, we can't eliminate it.

And that's --

Chief Justice Earl Warren: But why?

Why can't we, if you refuse to take the position that it is sufficient.

Mr. J. William Doolittle: Well, Your Honor, our point as I would develop further is that you've got to take the sum of the circumstances and that this information plus what happened later gave the agent probable cause.

You mustn't take each item in isolation.

You must take the sum of the circumstances.

Chief Justice Earl Warren: Yes, but do you mean to say that although the Government is unwilling to take the position that they have probable cause to break into this man's place based upon this information from Hom Way that we ought -- we ought to assume that it was a probable cause?

Mr. J. William Doolittle: Well, I -- I do believe that the Government had probable cause, that the agent had probable cause to force the door of the -- Toy's premises.

And I'll show --

Chief Justice Earl Warren: That wasn't because --

Mr. J. William Doolittle: I will show why that is true and I'm simply saying that because it is the additional things that took place later that call for a decision on the part of the agent, that it is really unnecessary stop at this point to say was there probable cause.

Actually, the question I'd like to ask at this point Your Honor is just what should the agent have done at that point, we submit that whatever he did, he had to do it rather quickly.

I think it was reasonable for agents engaged in trying to control narcotics traffic would fear that the news of Hom Way's arrest might get back to his alleged supplier.

And that that alleged supplier might escape, might warn the confederates, might destroy or conceal narcotics, which is of course a particularly difficult problem when you're dealing with narcotics traffic.

Now, should he seek an arrest warrant?

Apart from the delay that would be involved, of course, there would be a delay involved considering that this happened at 6:30 in the morning that the information actually was at 5:30 or 6:00 in the morning, perhaps the prudent cautious agent would not be fully satisfied that this was probable cause.

Looking at it from the agent's point of view, not from the (Inaudible) of the courtroom, but from where he stood, perhaps, he felt that wasn't quite enough to go on and that perhaps he'd better he'd check the information out.

It was then daylight, only about two hours before business establishments open for the day, and so it was decided that the agents would investigate further and they were dispatched to the premises.

Justice Tom C. Clark: Suppose he had taken Way, with the information that (Inaudible) with this agent, would that be sufficient information?

Mr. J. William Doolittle: Well, it's difficult for me to see Your Honor that that would have added a great deal and considering the risk that that delay would involve of escape for a destruction of contraband, we submit that it was certainly, entirely reasonable for the agent to do what he did namely to undertake an investigation for the circumstances.

Now, the question has been raised as to how the information that Hom Way gave to the agent was sufficient to lead them to petitioner Toy's laundry.

And the record as Mr. Williams has indicated, does not clearly indicate.

I go further that record, it simply does not indicate the answer to that question.

And the reason that the record does not indicate is that neither at trial nor even on appeal, did the petitioner's whatever question the sufficiency of the information to lead to Toy.

Justice John M. Harlan: Was this gentleman known generally in the business as Blackie?

The record doesn't show that?

Mr. J. William Doolittle: The record doesn't show that.

Justice John M. Harlan: It doesn't show it.

Mr. J. William Doolittle: The record does clearly show that petitioners only attack on the information given by Hom Way was as to its reliability.

And they plainly assumed, if you read the record, you'll see that they plainly assumed that the information was sufficient to lead the agents to Hom Way -- to petitioner Toy rather, not --

Justice Arthur J. Goldberg: To make an investigation not to make any reference.

Mr. J. William Doolittle: To make an investigation at least, yes sir.

Directly in point is the Heitner case which is cited at page 31 of our brief.

There, the defendants had contested the existence of probable cause for our -- for an arrest.

But only on appeal, they first questioned whether the information was actually in itself sufficient to lead the agents to the officers to the defendants.

The Second Circuit speaking through Judge Learned Hand held that if the question had been raised at trial, the Government might have been able to prove that the officers did have enough to go on and that it was too late to raise the issue for the first time on appeal.

That's at 149 F.2d at 107.

So here, if petitioners had raised any question in this regard, the Government could have established.

The Government could have established that there was a positive link between the information and petitioner Toy.

But in fact the question was not raised, and we submit that any deficiency in the record in this regard must be charged to the petitioners not to the Government.

Now --

Justice Potter Stewart: So far as the equating Blackie Toy and --

Mr. J. William Doolittle: Yes sir.

Justice Potter Stewart: -- Wah Toy?

Mr. J. William Doolittle: Yes sir.

Justice Potter Stewart: That -- that's the deficiency to which you refer?

Mr. J. William Doolittle: Yes sir.

Now, a group of several agents went to petitioner Toy's laundry but only one, a Chinese agent went to the door and the other stayed as the records indicates half a block away.

Agent Alton Wong rang the door, rang the doorbell and then knocked and then Toy appeared.

Now, apparently, in order to get Toy to come to the door the agent asked for his laundry and Toy then opened the door and told him to come back when the laundry opened at eight o'clock.

Now --

Justice William J. Brennan: Now wait a minute --

Mr. J. William Doolittle: -- the count -- I'm sorry.

Justice William J. Brennan: Mr. Doolittle?

Mr. J. William Doolittle: Yes sir.

Justice William J. Brennan: Is there a difference between you and Mr. Williams as to what Mr. Williams said that the question Wong said, “I want my laundry” only after Toy had opened the door.

Mr. J. William Doolittle: The record I think indicates it's something that isn't set forth in specific detail but I think the record fairly indicates the order that I've suggested.

He said here's an answer given by petitioner Toy, the Chinese.

And the --

Justice William J. Brennan: What page?

Mr. J. William Doolittle: I'm sorry, it's on page 38 of the record.

The Chinese, and there he is referring to the Chinese agent.

“The Chinese rang the bell and I answered it and he said he wanted his laundry.

After I opened the door and I told him I didn't open until 8:30.”

Perhaps that's an unduly close reading of the record but we --

Justice William J. Brennan: Do you think it is a rather --

Mr. J. William Doolittle: -- the inference to be drawn from that is that, you see this is --

Justice William J. Brennan: Well -- how was Toy supposed to hear him through the closed door?

Mr. J. William Doolittle: Well, this was a -- these were glass -- glass door, the inference one might draw from that is that the agent rather saw petitioner Toy at the back of the business part of the laundry which is the front part of the building.

That he -- well, he had a questioning look on his face.

He called, “I want my laundry”.

And that he -- that the petitioner then came to the door and said come back at eight --

Justice William J. Brennan: Even though he did hold up a laundry ticket, didn't he?

Mr. J. William Doolittle: Oh, that might have been what he did.

Chief Justice Earl Warren: Well then, didn't that --

Mr. J. William Doolittle: It might have been what he did?

He might have held up any piece of paper saying I want my laundry but we don't know exactly what he did.

Chief Justice Earl Warren: Didn't the answer that he gave say, “After I opened the door and I told him,” I thought I understood you to read it that way.

Mr. J. William Doolittle: After I opened the door and I told him I didn't opened until 8:30, that's right.

Chief Justice Earl Warren: Now, what is there in that to indicate that he told him --

Mr. J. William Doolittle: Well --

Chief Justice Earl Warren: -- told him before?

Mr. J. William Doolittle: Perhaps the -- perhaps the inference could be drawn either way.

I don't -- I don't feel that it's particularly crucial, Your Honor and -- and I -- it could have been either way.

Obviously, as I said perhaps my reading is an unduly close reading of it and I don't think it's material.

Now, counsel has referred to the language problem.

Now, I must take issue with his statement that the inference to be drawn from the record is that the conversation took place in English.

There's nothing in the record that suggests that, and as you know, both participants in the conversation were themselves Chinese.

Furthermore, apart from that --

Chief Justice Earl Warren: Do they usually -- do narcotic agents usually talk in Chinese?

Mr. J. William Doolittle: I would guess that Chinese agents in San Francisco do, Your Honor.

Chief Justice Earl Warren: You guess that from the records?

Mr. J. William Doolittle: I would guess that from general experience.

I -- I'm not testifying but I would guess that, yes.

But furthermore, Your Honor, I don't think this point need be or should be allowed to become crucial at any stage.

But again to clear up the record, the record makes it quite clear that petitioner Toy did speak quite adequate English.

And the interpreter was there not for Toy but for Wong Sun.

The record on page 16 is where the explanation of why the interpreter is there appears and there's just no question considering the record taken as a whole that Toy speaks good English.

In fact, he testified in English as the record on page 39 clearly indicates.

Chief Justice Earl Warren: Was there any interpretation either to or from him in the trial?

Mr. J. William Doolittle: The record indicates and it's again not completely clear that at that -- and right at that point that I just cited at 39, that he would discuss the questions with the interpreter and then answer.

That's -- that's what the record appears to indicate but he did answer in English.

Now, at the point to which I have read -- the point I have reached namely that petitioner Toy said “Come back when the laundry opens at eight”, the agent showed his badge and said that he was a federal narcotics agent.

At that point, Toy slammed the door and ran to the rear of the laundry an exodus, which as I've indicated, was in full view of the agent because the door of the laundry was made of glass, he could see what was happening.

Now, Toy never offered, nor does the record suggest at any point at any reason for this hasty departure.

There are no hints in the record that it was out of fear of anything except perhaps of the discovery of his illicit activities.But whatever the real reason for the --

Justice Arthur J. Goldberg: Mr. Doolittle, is it your theory that if a law enforcement official comes to your home, knocks on the door, that you must admit him (Inaudible)

Mr. J. William Doolittle: No, I wouldn't contend that at all, Your Honor.

I'm just saying that under these circumstances, I think we must ask what it was reasonable for this agent to do.

And I ask was it unreasonable for him to conclude that Toy's flight reflected a consciousness of guilt and a purpose to escape or to destroy narcotics.

And again I ask each member of this Court to consider what a conscientious law enforcement officer having substantial although perhaps not conclusive information that a suspect was dealing in narcotics should do when that suspect upon learning of the officer's identity suddenly takes flight, should he'd gone off and obtain an arrest for a search warrant?

Surely, the risk of the suspect of escaping and notifying confederates, destroying narcotics was too great for that.

Justice Hugo L. Black: May I ask you this?

You have indicated that you do not want to decide or to take a position on whether the evidence after that time would have justified the issuance of a search warrant.

Suppose he had gone to the officer then, is it your position now that by the joint information, collective information in terms from Hom Way plus the man running, would that justify the issuance of search warrant?

Mr. J. William Doolittle: Absolutely, Your Honor.

That is our contention.

Justice Hugo L. Black: I do not understand you to take the position to either you can arrest a man on the ground that has probable cause when the evidence would not support the finding issued to the search warrant by a magistrate.

Mr. J. William Doolittle: No.

The probable cause that must occur to the -- must appear I should say to the Commissioner is certainly the same probable cause that must appear to the agent.

Justice Hugo L. Black: Could not be less or more?

It doesn't have to be less or more?

Mr. J. William Doolittle: That's right.

It's the same thing.

Justice Tom C. Clark: That's why it's whether or not the (Inaudible)

Mr. J. William Doolittle: And -- I would certainly say that as I meant to say if I didn't say that the situation would really be the same no matter what --

Chief Justice Earl Warren: Well, would it be the same -- doesn't the law contemplate that before a search or seizure is made that under all normal circumstances that it's a judicial act to determine the credibility of the witness on the issue of the search warrant and if --

Mr. J. William Doolittle: Well --

Chief Justice Earl Warren: And if the man -- if the man was brought before the Commissioner and made his affidavit and the Commissioner had a right to observe him and cross-question him and do the other things that' quite been necessary to establish credibility.

And he then swore to it when the Commissioner issued a warrant, wouldn't that be essentially different from -- from accumulating these little things that you've been talking about then, and the officer making up his mind and breaking down a door and chasing a man into his bedroom.

Mr. J. William Doolittle: But Your Honor I would -- I would certainly agree with you that that -- where circumstances permit that is certainly the desirable way to proceed.

But the law clearly recognizes the possible existence of exigent circumstances, and of course, here, we are attempting to show exigent circumstances that reasonably indicated to the agent that following the normal and desirable course would jeopardize the success of this particular investigation.

Justice Arthur J. Goldberg: Is the Government's position that the privacy of a citizen can be violated, that the privacy of the United States Commissioner cannot be violated?

Mr. J. William Doolittle: Certainly not, Your Honor.

And I not meant to suggest and I certainly do not suggest that the comfort of the Commissioner should figure importantly in the agent decision as to whether or not route him out of bed.

The question is the amount of time that that would entail plus of course the questions and I've suggested as to whether the agent felt that he at that time had probable cause.

Now, many federal and state decisions substantiate the judgment that the agent adopted holding that reasonably founded suspicions plus the element of flight constitute probable cause for an arrest.

We have set forth in our brief at pages 31 and 32 a number of those cases.

As an example, I might again refer to the Heitner case which I have already cited and that is cited at page 31 of our brief.

There, the record indicated only that the officers had been instructed by their superiors to watch a particular building that was suspected of containing an illegal steel.

Two people who had come out of the building appeared to recognize the officers as officers and they took flight.

Judge Hand held that the information plus the flight suffice to make out a -- make out probable cause for an arrest.

And we submit, that in this case, the combination of the information the agent had plus the element of flight clearly constituted probable cause and that the agent therefore justified in forcing Toy's door and pursuing him and arresting him.

Chief Justice Earl Warren: Is there anything -- is there -- in any of those cases, is there anything comparable to this case where a man is feasibly at home and he is accustomed in the way he was and fled as you choose to call it from his front door to his bedroom considered flight in a legal sense?

Mr. J. William Doolittle: Well, by and large, Your Honor, these cases do involved instances in which the person is perhaps in an automobile.

None of them immediately comes to mind where a person was brought from his bed.

That's right.

Chief Justice Earl Warren: You normally, you'd hardly consider flight as a man running from his front door to his bedroom where his wife and baby are, would you?

Mr. J. William Doolittle: Well, Your Honor under the circumstances it seems to me this is flight.

There's no --

Chief Justice Earl Warren: Is there authority --

Mr. J. William Doolittle: -- there's no suggestion that he never --

Chief Justice Earl Warren: Is there any authority for it?

Mr. J. William Doolittle: I'm sorry?

Chief Justice Earl Warren: I just asked if any of these cases were authority for that.

Mr. J. William Doolittle: Not direct authority for that particular proposition, Your Honor, no.

Justice Tom C. Clark: Then, what are these?

Mr. J. William Doolittle: These -- the cases naturally involved such a wide variety of individual circumstances.

It is difficult to draw absolute ironclad principles and we're simply saying that that this element combined with the other element of information has very often been have held to justify that one can do very little more than -- and examine the cases and see where that balance brings in.

Justice John M. Harlan: Mr. Doolittle, are there any published figures as to the number of narcotic arrests compared -- with the warrant as against to those --

Mr. J. William Doolittle: I am aware of none.

I would suppose that there would be some but I'm unaware.

The court below, as the counsel has pointed out disagree, the court below held that the -- there was no probable cause for Toy's arrest, but we believe that its basis for so ruling is erroneous on its face.

As the opinion discloses at page 139 and 40 of the record, the Court considered these two elements of probable cause information and flight separately, finding either one alone sufficient to constitute probable cause.

It included that there was no probable cause.

But as the cases make it clear we have cited the cases for this proposition on page 33 of our brief, probable cause is to be determined by the combination of relevant circumstances and we submit that the sum of the facts on which the agent here acted was plainly sufficient.

Justice Potter Stewart: The District Court didn't make any clear ruling one way or the other.

Mr. J. William Doolittle: Well, no.

Not -- he merely admitted the evidence and counsel certainly entitled to argue that he could have done so because he -- he adopted our second argument.

Justice Potter Stewart: Which is simply not clear.

Mr. J. William Doolittle: Yes, that's right.

The agents' failure to announce his purpose we submit did not affect the validity of the arrest.

There's well recognized exception to the rule requiring the announcement of purpose which exists where an officer has reason to believe that an announcement is useless or that it will facilitate escape for the destruction of contraband.

This exception was acknowledged, if not adopted, by the Miller case.

And we submit that the exception is clearly applicable here.

As to the uselessness, we submit, that when somebody flees because he has seen your badge he knows why you're there.

And secondly, we do contend that the -- any delay at all might reasonably have been viewed by the agent as risking the possibility that the contraband would be destroyed as you know, narcotics can be destroyed very quickly by simply running them down the sink or down the drain.

Chief Justice Earl Warren: Do you arrive at that conclusion, Mr. Doolittle, because of the very nature of the narcotics?

Mr. J. William Doolittle: Yes sir, basically.

Chief Justice Earl Warren: That question or because of the reliability of the information that they had?

Mr. J. William Doolittle: No, I mean at this point because of the character of narcotics.

And obviously, the agent had foremost in his mind, the information that he had no doubt narcotics agents are very much -- very acutely aware of the ease of destruction of narcotics and that certainly figures into their thinking, no doubt.

Now, we submit that there can be no serious question as to the legality of petitioner Wong Sun's arrest.

We believe that the agents had more than ample cause to arrest him.

After Johnny Yee had surrendered the narcotics, he said that he had received them from Toy and from one Sea Dog.

Now, this statement was hardly corroborated again by the fact that he had narcotics.

This wasn't a statement that he was just making for the fun of it or spite.

There was some corroboration from the fact that he actually had narcotics himself.

It was further corroborated by the fact that Toy had already disclosed his familiarity with Yee by the fact that Toy had correctly specified the amount of narcotics that the agents could expect to find at Yee's place.

And Toy thereupon identified Wong Sun as Sea Dog.

Now, this fact is an important fact because it also corroborates Yee's statement because it indicates that Toy and Wong Sun were familiar with one another.

And of course this was further corroborated and an additional bit of information which developed when Toy actually went along with the agents and showed them where Wong Sun lived.

We believe that it's really difficult to imagine what more could be asked for in the way of probable cause for an arrest.

Moreover, substantially the same factors that require the agents to move quickly with respect to Toy obtained, we submit, with respect to Wong Sun.

Two of the persons with whom he was dealing in narcotics had now been arrested, Toy and Yee.

And since Yee had identified him as a supplier, the agents could reasonably suppose that he had narcotics, and upon learning of these arrests that he might well destroy them nor we submit as the record disclosed anything improper about the manner in which the arrest took place.

Now, of course, if as we contend that the petitioner's arrest were lawful, the petitioner's challenges to the admissibility of the evidence fall at the outset.

We believe, however, that even if the arrests were unlawful, the challenged evidence was admissible.

Now, of course, the Silverthorne, in Nardone cases have established beyond any questions drawn.

The evidence which is the product of an illegal governmental action is not admissible in a federal prosecution.

However, both of those decisions recognized that there are reasonable limits to the reach of this doctrine.

Nardone, the Court said that the connection between the governmental action and the evidence that I quote “May have become so attenuated as to dissipate the taint.”

Perhaps the most notable class of cases in which the Courts have found the connection to attenuate it for the application of the exclusionary rule are those involving a voluntary statement made shortly after an illegal arrest with surprising consistency, both state and federal courts generally held that genuinely voluntary statements made in the course of an unlawful arrest cannot be regarded as the product of that arrest.

We've set forth some of those cases on pages 42 and 43 of our brief and a complete list is to be found in the article by Professor Kamisar which we have cited and that's at page 81 of his article.

This Court has never ruled directly on the point although such cases as the Bayer case in 331 U.S. seemed to us to proceed on the same essential assumptions as these lower court cases.

There, the defendant had made a confession that was unlawful under the McNabb rule, and thereafter he made a second one based on the first.

The Court although recognizing and I quote, “A later confession always maybe looked upon as fruit of the first” still held the exclusionary rule to be inapplicable.

We believe that the rationale of these cases particularly as I say, the state and federal lower court cases that have developed the position I've suggested, is that a genuinely voluntary statement constitutes an intervening independent act of a freewill that breaks the chain of causation between the arrest and the evidence.

That these cases recognized that when the police acquired voluntary statements such as that involved in this case, it's purely fortuitous.

And therefore, it's relatively unlikely that the police are going to make an unlawful arrest in order to obtain voluntary statements.

Thus, the minimal deterrent effect of excluding such statement is outweighed by the public interest in convicting the guilty.

Chief Justice Earl Warren: Do you think there is no coercion involved where a man during the time he normally sleeps is aroused out of bed and is arrested in his own bedroom in front of his wife and baby and he's handcuffed and then he's talked to.

Do you maintain there's no coercion involved there?

Mr. J. William Doolittle: We don't believe there was, Your Honor.

I'll develop that in a little more detail.

But that's right, we don't believe that there was any measurable element of coercion present.

Chief Justice Earl Warren: Do you think a man is in the state -- same state of mind as any free person would be in making a statement?

Mr. J. William Doolittle: I'll -- again, in developing that point a little more detail --

Chief Justice Earl Warren: That (Voice Overlap)

Mr. J. William Doolittle: I suggest -- I believe that in this case very clearly so considering the character of the statement, very clearly, so of course anybody who is -- is brought in conflict with law enforcement officials is obviously less at ease than he might otherwise be.

But remember we're talking about voluntary statements and I certainly agree with Your Honor in a suggestion that we must certainly be certain of the voluntariness of any such statement.

Chief Justice Earl Warren: Do you believe this -- this case brings certainty to the mind?

Mr. J. William Doolittle: I believe it does, Your Honor, considering the circumstances as I'll spell them out in a little more detail.

Now, I believe that these cases that I've been discussing recognized too that if an intervening act of free will does not bring about the attenuation referred to in Nardone, then it's difficult to imagine what will.

In short if there are limits to the doctrine and surely we feel this must be it.

Now, of course in enforcing this rule the courts have been careful to insist that the voluntary statements be voluntary in fact, thus in a Nueslein and the (Inaudible) cases which petitioners cite, the defendant's appeared to be intoxicated when they gave the evidence in question.

Such acts could of course, scarcely be held to be voluntary.

Also, when an illegally arrested defendant is confronted with illegally obtained evidence, the courts have often held that that does not present a sufficient level of voluntariness as to allow the admission of the evidence.

Now, in this background let -- let us turn to the challenged evidence in this case.

The first item is of course the first -- the Toy's implication of Johnny Yee made at the scene of arrest and of course from that stem petitioner's various other contentions.

Now, we submit that a reading of the record clearly discloses that this statement was completely unsolicited.

And that we submit is an important element to take into account in determining just how voluntary it was.

It was not an answer to a question.

Toy was informed by the agents as the record shows on page 63.

He was informed by the agents that he had been named by Hom Way as possessing narcotics.

Petitioner said, “No, I haven't been selling narcotics at all.”

Then he said, “However, I do know somebody who has” and we submit that there was nothing about his arrest that caused -- that made the petitioner accuse Yee.

No evidence was found at his place and no doubt he knew no evidence was going to be found in his place.

So there was nothing for him to explain a way.

As the court below found nothing in the record so much as hints at coercion or involuntariness and I think it's important to note that neither a trial nor an appeal that the petitioner ever so contend, the contention was simply that as a matter of law if there is an unlawful arrest that the statement would fall.

Indeed, we suggest, that it is an even more clearly admissible than the ordinary voluntary statement because here Toy deliberately sought to divert suspicion from himself by sidetracking the agents in the direction of Yee.

No doubt he was quite hopeful that Yee would have by then destroyed the evidence or that he may have used it up by then in any event it seems quite clear and I think counsel recognized this that Toy certainly was not intending to implicate himself.

And we suggest this case as quite analogous to cases in which offers of bribes to officers had been held to be -- had been held to be admissible even though made in the course of an unlawful arrest.

We've cited a couple of those cases on page 48 of our brief.

Now, the second challenged item of evidence --

Justice William J. Brennan: What you saying Mr. Doolittle, I think Mr. Williams suggested that when he said, “I saw it there last night”, he said something which might be incriminatory of himself.

Mr. J. William Doolittle: Well, I'm not -- I'm not sure he said he saw it last night.

He -- when he was asked how much was there, he said there's been about a piece.

I supposed you could argue, Your Honor that -- because he withheld this argue -- this information very much longer.

He might be thought to be improperly withholding evidence.

Justice William J. Brennan: Well, but he say substantially that, “I saw it there last night” or whatever it was, that's the way --

Justice Arthur J. Goldberg: That's at page 49 of the record, (Inaudible)

Mr. J. William Doolittle: Well, Your Honor that's -- that's a --

Justice William J. Brennan: The course of where --

Mr. J. William Doolittle: 49, it's a summary by the -- by counsel.

The testimony -- the only place for the conversation actually appears at page 63.

Justice Arthur J. Goldberg: The counsel is the District Attorney?

Mr. J. William Doolittle: That's right, Your Honor.

But I --

Justice Arthur J. Goldberg: (Inaudible)

Mr. J. William Doolittle: Well, I hope he wasn't purporting to testify though.

Now, the second challenged item of evidence is the narcotics itself that Yee voluntarily delivered to the agents.

This is basically a derivative challenge based on the alleged inadmissibility of this tip on the part of Toy that I've referred to.

Justice William J. Brennan: Now, just a minute, at 63, what -- is this which tell us as the (Voice Overlap) --

Mr. J. William Doolittle: This had -- this is where the conversation is set forth in detail yes, Your Honor.

Justice William J. Brennan: Oh, I asked him how much stuff Johnny had and he said he had about a piece that Johnny had a (Inaudible) --

Mr. J. William Doolittle: Right.

Justice William J. Brennan: Well, isn't that substantially the same thing?

If there is anything incriminatory about, “I saw some last night”, is there's also something incriminatory about this?

Mr. J. William Doolittle: Yes, in the same way.

Yes, Your Honor.

Now, I think it's important to note that that comes quite a bit after he had actually made the statement, volunteered the statement that he knew where there was some.

But you're quite right in suggesting that there are certainly is -- that there certainly are the elements of a violation of the act in that statement.

Now, we submit that there is no basis whatsoever for a challenge to the admissibility of the narcotics themselves here to taint any unlawful arrest was attenuated by not one but two voluntary independent acts.

Toy's implication of Yee and then Yee's voluntary surrender of the narcotics, and there is nothing in the record, nothing at all to suggest that the surrender of the narcotics by Yee was anything but completely voluntary.

We submit that there's no basis in law or indeed in common sense for stretching the exclusionary rules so far as to cover the narcotics surrendered by Yee.

Finally, the petitioners of course challenged the admissibility of the confessions that they made.

Each of these statement -- statements was made after petitioners' had been arraigned and freed on their own recognizance -- recognizance and each of the petitioners was fully advised at the time he made the statement of his rights -- his right to counsel and his right not to make any statement, in fact that any statement might be held against him.

Now, the challenge to Toy's confession would seem, we think, to fall by virtue of the Bayer case where at the very worst, it was only a second confession made after an unlawfully obtained statement.

And as to petitioner Wong Sun's confession and indeed as to all of the evidence that corroborated it, we are unable to proceed any basis for the exclusion of that evidence.

There's nothing in the record that forms even the most tenuous link between Wong Sun's arrest and any of the evidence that was used against him.

His confession was made four days after he'd been arraigned and freed on his own recognizance and the narcotics, which constitute the principal corroboration were of course surrendered before he was even arrested.

And as to the possibility that Wong Sun's confess -- confession was the product of Toy's unlawful arrest.

No court has ever suggested.

Indeed, I wonder if any court has even been asked to rule that the Silverthorne and Nardone doctrine could be stretched so far.

Between Toy's arrest and Wong Sun's arrest were at least five intervening acts, voluntary acts, Toy's implication of Yee, Yee surrender of the narcotics, Yee's later implication of Wong Sun, Toy's identification of Wong Sun and then Toy's later guiding the agents to Wong Sun's house.

As I said, there's no basis for any link between that arrest and the confession four days later.

We believe it would make a mockery of the exclusionary rule to say that the evidence of Wong Sun's guilt was in any legally relevant sense, a product of Toy's arrest.

Now, we submit that only the detailed confessions of the petitioners voluntarily made and fully admissible, but today were sufficiently corroborated by outside evidence.

We have set forth in our brief the evidence corroborating the various elements of the offense.

That's at pages 54 and 63.

But I do wish to deal briefly with the point that counsel has raised here.

Petitioners contend that there was no corroboration for their knowledge that the heroin had been unlawfully imported.

Now, of course this element of the offense is applied by the statutory presumption arising out of unexplained possession of the narcotics.

That's in 21 U.S.C. 174, plainly, the presumption which itself arises outside of the confession does not need corroboration.

It had to be corroborated.

We question what would be the point of having the presumption in the first place, it assumes that evidence of that character is virtually impossible to develop.

And we submit the element of possession itself was adequate -- adequately corroborated.

The corroboration, and of course the corroboration, as the Smith case pointed out, does not have to be in itself a complete statement of the particular element of the offense.

It must merely support the believability of the element in the confession.

Justice William J. Brennan: Let's say, Mr. Doolittle, this has the reference I gather to that which was taken from Yee, isn't it?

Mr. J. William Doolittle: That is right, Your Honor.

Justice William J. Brennan: And these petitioners' possession of that particular --

Mr. J. William Doolittle: There's -- you were certainly right in your suggestion to counsel that it is the possession of that narcotic that that is in question here.

Now, of course, those narcotics were surrendered and they were introduced in evidence.

And we submit that those narcotics when taken, in connection when the -- the element of possession is proved through the confessions of these two defendants provides adequate corroboration, they had both confessed to having participated in the bringing of narcotics to Yee.

They both indicated their knowledge of the precise amount that he had.

Counsel has suggested that petitioner Toy didn't confess to any possession, but he did confess to possession of enough to have a smoke and we submit that the statute doesn't say it has to be possession of substantial amount that that possession --

Justice William J. Brennan: But all --

Mr. J. William Doolittle: -- there was sufficient.

Justice William J. Brennan: But all of -- everything you've mentioned so far has been something that a petitioner stated as that his --

Mr. J. William Doolittle: No, my point -- my point, Your Honor is that the narcotics themselves when proved through the various statements not only the statements of possession but the various statements made by the petitioners in their detailed confessions do adequately corroborated.

Chief Justice Earl Warren: Would you mind detailing just what corroboration there is of Toy's guilt -- or his confession rather.

Mr. J. William Doolittle: Alright, Toy confessed that on a number of occasions he had driven Wong Sun to Yee's house.

Chief Justice Earl Warren: Yes.

Mr. J. William Doolittle: For $10 or $15 as he said, and that on at least one occasion and the inference clearly is on each occasion Wong Sun delivered heroin to Yee and he gave Toy some of it to smoke.

He also testified that on last Tuesday, May 26th in his language they made such a trip and that on June 3rd, he had smoked some heroin at Yee's.

Now, we believe that the primary corroborations of the fact -- oh, I might, I might add one additional point and that is of course that, as you pointed out Mr. Justice Brennan, at the time he actually turned over the narcotics to -- at the time he implicated Yee, he made an additional statement indicating his knowledge of what Yee had and so on.

The surrender of the narcotics by Yee is, we believe, is the most persuasive element of this.

At his own establishment, he had indicated his knowledge of the quantity that Yee had.

Chief Justice Earl Warren: Now are you -- you're detailing the -- the corroborated reference --

Mr. J. William Doolittle: I'm endeavoring --

Chief Justice Earl Warren: -- against Toy?

Mr. J. William Doolittle: Yes sir.

Chief Justice Earl Warren: Against Toy?

Mr. J. William Doolittle: Yes sir.

The amount seized was of course a little shorter of an ounce.

And this was -- the absence of an ounce was in fact an element corroborating this because Toy in his confession stated that on the occasions of these deliveries, “We've been smoking a little bit ourselves.”

And then of course he also said that on the third of June which was the night before he was arrested, he had gone again and smoke some, so that would account for the missing gram of narcotics.

Now, his familiarity with Yee's house, we submit, was an important element of corroboration.

He very carefully described just where the house was.

The agents went there unerringly.

And Yee's testimony that Yee and Toy had known one another, this is testimony at trial, that Yee and Toy had known one another for seven or eight years, corroborated the whole course of confession that he had made these many visits to Yee's house in which they brought narcotics on each occasion.

The fact that he knew as I say how much was there, it was an important corroboration and the fact that he had been there the night before.

We submit that this spelled out in, perhaps more articulate more complete detail in our brief.

We believe that all of that quite adequately corroborated the confession of Toy.

We do emphasize Toy attempted to be fairly clever in his confession.

He didn't actually come out and state, I did it.

He didn't come out and really admit every -- every element except the one provided by the statutory presumption as Wong Sun did.

But we believe that without any question, the various elements of corroboration notably the actual surrender of narcotics by Yee, provided complete corroboration to cover every element of the offense.

Chief Justice Earl Warren: Is there any -- any of that corroborated evidence against Toy that did not flow from his statement made at the time of this arrest.

Mr. J. William Doolittle: Well, I've indicated -- we feel very strongly that -- that the narcotics themselves did not -- could not in any reasonable way be said to flow from the arrest.

Chief Justice Earl Warren: Well, it's a -- it's the fruit of the investigation.

I mean fruit of the statement that Toy made to you, was it not, that they would find this at Yee's house?

Mr. J. William Doolittle: If we think in terms of but-for causation that -- that they would never have gotten to Yee's house, but for their engaging in the original arrest.

Perhaps that it's true.

But if we adopt that sort of causation, then the very rule that counsel has disclaimed namely that once you have an unlawful arrest that's the end of it.

You might as well dismiss the defendant because you're never going to be able to do anything against him.

Chief Justice Earl Warren: But you think he went that far, did he?I thought you specifically said, “I just saw (Voice Overlap) --

Mr. J. William Doolittle: Well, I'm just saying, I'm just saying -- he wouldn't even go that far.

He recognized --

Chief Justice Earl Warren: Yes.

Mr. J. William Doolittle: -- that there are reasonable limits and we urged as I argued that the narcotics were surrendered again voluntarily by Yee, a third person, that there had been -- that there -- it was that independent voluntary act coupled with Yee -- with Toy's own independent completely unnecessary implication of Yee.

We do believe that that corroboratory evidence was completely divorced from the arrest.

Chief Justice Earl Warren: That goes back -- all goes back to the validity of the arrest, does it not?

If it --

Mr. J. William Doolittle: Well, our contention --

Chief Justice Earl Warren: -- if the arrest was -- if the arrest was illegal and he made this statement as a consequence of that arrest, then that would be fruit of poison tree, wouldn't it?

Mr. J. William Doolittle: No.

We believe not, Your Honor.

Because we believe that even the very statement that he made in the course of the arrest, very shortly after the arrest, the voluntary statements saying I know somebody who has narcotics.

We believe that that was not the product of the arrest.

We believe that was not the fruit of the poison tree.

If the -- even if the arrest be invalid which we don't believe it is.

Thank you.

Chief Justice Earl Warren: We'll recess now.

Mr. Williams.

Rebuttal of Edward Bennett Williams

Mr. Edward Bennett Williams: If the Court please.

I don't like to get into an argument that the Government held so with respect to what the record says but I fear that it is necessary here because I'm afraid that an erroneous impression has been left with respect to the state of the record as a result of some questions that have been propounded.

I believe that it was Mr. Justice Brennan who this morning asked the question whether or not Alton Wong said through a close door I've come here for my laundry or whether the door was open at that time.

And I understood Government counsel to suggest to the Court that it was necessary for him to perpetrate this ruse on Mr. Toy in order to get him to open the door.

Well, the record is to the contrary on that, the record at page 38 is as follows: “Mr. Toy, the first time you saw the Chinese narcotics agent was in the morning when he knocked on the door of the laundry, is that right?”

“He rang the bell.”

“Oh!

He rang the bell then you opened the door?”

“Yes.”

Question: “And then the agent showed you a badge, didn't he?”

“No, he just asked for the laundry.”

Chief Justice Earl Warren: What page are you reading from?

Mr. Edward Bennett Williams: Page 38 of the record Mr. Chief Justice, at the bottom.

Chief Justice Earl Warren: Oh -- oh, yes.

Mr. Edward Bennett Williams: So that I think the record is quite clear that the door had been opened by the occupant and it was not necessary to attempt any ruse on him in order to get him to open the door.

Now secondly, the question has been raised with respect to petitioner Toy's fluency with the English language.

And the suggestion was made to the Court that the necessity for an interpreter arose not because of Toy's lack of fluency with the English language but because of Sun's lack of familiarity with the language.

I think that the record as to the contrary.

At page 39, when Toy was on the witness stand testifying, the following colloquy took place and I quote from the top of page 39, Mr. Abrams who was the trial counsel for the defense in this case outside, “Alright, may I ask that the interpreter make that clear to the witness where this conversation had taken place?”

Government counsel, Mr. Rearton (ph), “He is answering in English.”

The Court: “Yes, he is answering in English and as I understand it he and the interpreter are discussing these things together.”

In addition to this record reference at pages 11, 16, 68, and 72, there is further demonstration of the need for an interpreter during the course of the trial for both of the petitioners.

Again, in response to a question posed by Mr. Justice Brennan also this morning as to whether or not there was anything incriminating in the threshold statement made by Toy immediately on his arrest.

I responded that he had admitted his presence in Yee's premises the night before.

Then during interrogation of Government counsel, it was suggested that the only supporting record reference for that was a statement by the District Attorney who of course was not qualified to testify with respect to the facts.

But at page 63 of the record, agent Nicolov is testifying to the statement made by petitioner Toy immediately upon his arrest in his bedroom on the morning of June 4th.

And what does he say?

And I'm reading from almost the center of the page at page 63.

He said it was -- he described the house to us, it was a remodeled front of the house with a white trim, sort of beige color and he said he had been there the night before.

And we asked him how much stuff, I asked him how much stuff Johnny had.

And he said he had about a piece and that Johnny had a bedroom here, it was his folk's house and the bedroom was upstairs.

So the record does show that petitioner Toy on the very threshold of his rest -- arrest admitted his presence in Yee's premises the night before.

Now, counsel said that at pages 42 and 43 of the Government's brief, there is cited a line of authority to verge in from that to which I call the Court's attention suggesting that evidence oral in nature on the threshold of an illegal arrest is admissible or has been held admissible by the federal court.

I respectfully disagree with counsel.

He cites three cases there.

He cites the case of Smith against the United States, United States against Walker, and Gibson against the United States.

In Smith against the United States, the Court used this specific language, it said the difference between the facts in the Nueslein case and the instant cases are apparent.

In Nueslein there was no probable cause for arrest of Nueslein up to the time the search was made.

Here, probable cause existed to believe a felony had been committed and that Smith had committed it.

So the Court of Appeals validated that arrest and that's why the statement was allowed in evidence.

Again, in United States against Walker, likewise cited by the Government in supporting its theory on the federal exclusionary rule, the Court specifically said this, and I quote, “In our opinion appellant has not established his arrest was illegal.”

So that neither of these case support what the Government contends for in this instance.

Now they cite a file case, Gibson against the United States, a District of Columbia case.

In that case, there was an illegal arrest.

There was a threshold admission, incriminatory in nature.

That admission was allowed in evidence by the trial court but the fact was that after the threshold admission O'Kelly, the appellant was released.

He returned the next day and repeated the incriminatory statement voluntarily, and the Court of Appeals could not see the prejudicial error in allowing in the first instance.

But for whatever that case may hold that gives consolation to the Government, on Thursday last, the Court of Appeals emasculated this decision in Killough against the United States by holding that an immediately subsequent confession after a violation of Rule 5, a subsequent confession made not during the period of illegal detention, must be regarded as fruit of the poison tree and they struck it down on Thursday, October 4, 1962.

Finally --

Justice William O. Douglas: Is that the -- the case for Judge Fahy?

Mr. Edward Bennett Williams: Yes sir.

Yes Your Honor.

Finally, it was suggested to the Court that there was corroboration of the so-called confession and when counsel was put to developing the corroboration, he cited a statement that Toy had made immediately after his arrest.

But I think as I think it's axiomatic that you cannot corroborate an admission with another admission.

The corroboration must be with evidence, extrinsic in nature.

Justice William J. Brennan: Well, what was about the Government's argument on -- what they discovered at Yee's house was something less than an ounce and that (Inaudible)

Now, that's what was in his statements about it, they find in Yee's house a piece (Inaudible) to smoke, well, why was it (Inaudible)

Mr. Edward Bennett Williams: Well, the statement said about a piece.

Now, the fact is I believe that it was 27 grams, which was found in Yee's house.

But there is no possession.

There is no evidence of possession on the part of Wong Sun or on the part of Toy aliunde the so-called confessions.

There is nothing in the record to support that they ever possessed.

Now, possession is not the offense here, if the Court please.

Possession is merely a basis for presumption of the other elements of the offense.

In order for that presumption to operate and make a prima facie case -- of a violation of the statute, it's necessary that the possession be shown in the defendant.

But there isn't any possession shown by any statement of Wah Toy nor is there any possession shown by evidence apart from his --

Justice William J. Brennan: Well, wasn't the --

Mr. Edward Bennett Williams: -- statement because the possession was in Yee.

Justice William J. Brennan: What was the -- wasn't the statements that (Inaudible) is the last piece that was delivered to Johnny Yee the night before?

Mr. Edward Bennett Williams: The statement of Wah Toy was that the last piece had been delivered to Johnny Yee on last Tuesday, May 26.

But the significant thing, Mr. Justice Brennan is that this statement was either made on June 5 or June 9, and last Tuesday, it would have had to be June 2.

So that there's no correlation between the allegation charging a substantive violation of the statute purportedly on June 1, with the date to which he referred, May 26.

Justice William J. Brennan: (Inaudible)

Mr. Edward Bennett Williams: I think that they had to prove this case the way that the prosecutor conceive that he had to prove this case when he began the trial.

He needed Johnny Yee's testimony.

He didn't get it.

And not only he didn't get his testimony, he got a complete repudiation of the statement that was allegedly given by Yee to narcotics agents.

And I think that when that testimony, that viva voce of testimony went out that they didn't have sufficient corroboration within the purview of the Smith case.

Justice John M. Harlan: Could I put a question to you on --

Mr. Edward Bennett Williams: Yes sir.

Justice John M. Harlan: -- probable cause again?

Mr. Edward Bennett Williams: Yes sir.

Justice John M. Harlan: Supposing the agent had gone, this relates to the arrest of Wong Sun, supposing the agent had gone to a Commissioner with an affidavit that set forth the string of events, what would be your view as to whether the warrant should have issued?

Mr. Edward Bennett Williams: I think, Mr. Justice Harlan, if at 10:30 that morning when the Government could readily have gone to a Commissioner, they had gone and they had taken a sworn statement from Johnny Yee saying that the narcotic which I had in my possession last night and the narcotic which is now in the possession of the Government, I took from Johnny Yee, from -- I'm sorry, from Wong Sun.

In fact, he said from Sea Dog, and if they had supporting affidavits to equate Sea Dog with Wong Sun, then I think that a Commissioner sitting as a quasi-judicial officer with the opportunity to evaluate the credibility of that evidence could have issued a valid arrest warrant for Wong Sun but they didn't do that.

Justice Byron R. White: (Inaudible)

Mr. Edward Bennett Williams: Well, that's the way Rule 4 provides it.

It'd be done, but it does give the Commissioner an opportunity to test the credibility of the affiant interrogation.

Justice Byron R. White: (Inaudible)

Mr. Edward Bennett Williams: Yes sir.

Chief Justice Earl Warren: Mr. Williams before you sit down I want to express appreciation of the Court to you for having accepted this assignment and particularly for the double duty he had been compelled to make.

The Court is always appreciative of the efforts of counsel that gives us great confidence and all of the members of the bar who are willing to take these assignments without compensation to themselves and with great effort on their part.

Mr. Doolittle --

Mr. Edward Bennett Williams: Thank you sir.

Chief Justice Earl Warren: -- I want to thank you also for the fair way that you presented the case of the Government.

It's always covering to see counsel act as you two have in this case.

Rebuttal of J. William Doolittle

Mr. J. William Doolittle: Thank you, Mr. Chief Justice.

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WONG SUN v. UNITED STATES. The Oyez Project at IIT Chicago-Kent College of Law. 26 April 2013. <http://www.oyez.org/cases/1960-1969/1962/1962_36>.

WONG SUN v. UNITED STATES, The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1960-1969/1962/1962_36 (last visited April 26, 2013).

"WONG SUN v. UNITED STATES," The Oyez Project at IIT Chicago-Kent College of Law, accessed April 26, 2013, http://www.oyez.org/cases/1960-1969/1962/1962_36.

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WONG SUN v. UNITED STATES