Wong Sun v. United States – Oral Argument – March 29, 1962

Media for Wong Sun v. United States

Audio Transcription for Oral Argument – April 02, 1962 (Part 1) in Wong Sun v. United States
Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Earl Warren:

Number 479, Wong Sun and James Wah Toy, Petitioners versus United States.

Mr. Williams, you may proceed.

Edward Bennett Williams:

Mr. Chief Justice, may it please the Court.

This case is here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

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 —

Felix Frankfurter:

What was the hour you said he was arrested?

Edward Bennett Williams:

At 2 a.m.

Felix Frankfurter:

Which headquarters?

Edward Bennett Williams:

He — at — he was taken forthwith to headquarters.

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

Felix Frankfurter:

2 a.m.

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.

Is he the gentleman whose name is on the papers?

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.

Potter Stewart:

Was daylight, wasn’t it?

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.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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.”

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?

Edward Bennett Williams:

Yes, sir.

Potter Stewart:

Before Agent Wong told him he was a federal narcotics agent?

Edward Bennett Williams:

I believe that —

Potter Stewart:

When does the — can you refer us to the —

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.”

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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.”

Who?

Edward Bennett Williams:

“Sea Dog.”

They asked him who’s —

Felix Frankfurter:

That’s an English name?

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.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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 —

Earl Warren:

May I ask, what became of Johnny Yee?

Edward Bennett Williams:

The record —

Earl Warren:

Was he indicted?

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.

Potter Stewart:

Now, what was the substantive count again?

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.

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 —

Edward Bennett Williams:

The only narcotic in evidence.

Potter Stewart:

In evidence?

Edward Bennett Williams:

Yes, sir.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Potter Stewart:

So its relation to the —

Edward Bennett Williams:

Yes, sir.

Potter Stewart:

That which proceeds from Johnny Yee?

Edward Bennett Williams:

Yes, sir.

Potter Stewart:

They were convicted then of what?

Concealment or otherwise, is that —

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.

Felix Frankfurter:

Were these — were they jointly charged in a single — in account or —

Edward Bennett Williams:

Yes, sir.

Felix Frankfurter:

— jointly charged —

Edward Bennett Williams:

Yes, sir.

Felix Frankfurter:

That was presumably as joint principles?

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 —

Potter Stewart:

This was Toy?

Edward Bennett Williams:

Yes, sir.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

The Government —

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?

Edward Bennett Williams:

The Government argues that at the time that he ran that there then arose a probable cause for his arrest.

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)?

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.

Potter Stewart:

And that it didn’t happen until he had identified —

Edward Bennett Williams:

Yes sir.

Potter Stewart:

— himself as an agent?

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.”

Potter Stewart:

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

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.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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 —

Felix Frankfurter:

That argument was within —

Edward Bennett Williams:

— Toy —

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).

Edward Bennett Williams:

But I think it also falls, Your Honor, within the language of this —

Felix Frankfurter:

I’m not sympathetic to that view, but that’s of the decisions of this Court.

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 —

Felix Frankfurter:

(Inaudible) been found.

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.

Felix Frankfurter:

The consequences you draw have not found — fair with the Court.

Edward Bennett Williams:

I unders —

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.

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.

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.

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.

Could I ask you a question —

Edward Bennett Williams:

Yes, sir.

— 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?

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.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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.

The address of this laundry was not — that cannot be tied up to the restaurant which Hom Way gave?

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.

Felix Frankfurter:

Does that make not two?

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.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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.

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.

Edward Bennett Williams:

Yes, sir.

Now —

Felix Frankfurter:

And that turn greatly on — as I see it, on one’s view of the historical compulsions of that amendment?

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 —

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.

Edward Bennett Williams:

Yes, sir.

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 —

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 —

Potter Stewart:

Well, the Mallory —

Edward Bennett Williams:

— it is inadmissible.

Potter Stewart:

Mallory-McNabb —

Edward Bennett Williams:

So that —

Potter Stewart:

— it made during any period of guilty plea.

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.

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States
Audio Transcription for Oral Argument – April 02, 1962 (Part 2) in Wong Sun v. United States

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Edward Bennett Williams:

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.

You don’t rely on the fruit’s doctrine and of the —

Edward Bennett Williams:

I do rely on the fruit’s doctrine, yes, sir.

Yes.

(Inaudible)

Edward Bennett Williams:

Yes, sir.

Yes sir.

I do rely on the fruit’s doctrine.

William J. Brennan, Jr.:

You mean that’s basically what you rely on.

Edward Bennett Williams:

Yes, sir.

Well, I got thrown off by your reference to McNabb.

Edward Bennett Williams:

Well —

I thought fruit’s doctrine —

Edward Bennett Williams:

I referred to the —

— is something different from the McNabb line —

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.

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.

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.

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?

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 —

Now, I understand you.

Edward Bennett Williams:

Yes, sir.

Earl Warren:

We’ll recess now.