Wong Sun v. United States – Oral Reargument – October 08, 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 Argument – April 02, 1962 (Part 2) in Wong Sun v. United States
Audio Transcription for Oral Argument – March 29, 1962 in Wong Sun v. United States

Audio Transcription for Oral Reargument – October 08, 1962 in Wong Sun v. United States

Earl Warren:

Number 36, Wong Sun and James Wah Toy, Petitioners, versus the United States.

Mr. Williams.

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 —

Arthur J. Goldberg:

How far?

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 —

Potter Stewart:

Daylight, wasn’t it?

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 —

Earl Warren:

What was in — what was in the drawer?

Edward Bennett Williams:

There was nothing in the drawer, Mr. Chief Justice.

Edward Bennett Williams:

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

William J. Brennan, Jr.:

No weapons?

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.

John M. Harlan II:

Is there any claim on your part that Hom Way was illegally arrested?

Edward Bennett Williams:

There’s nothing in the record, Mr. Justice Harlan, to support an inference either way with respect to that fact.

John M. Harlan II:

You’re — it’s not part of your argument in other words.

Edward Bennett Williams:

I make no argument with respect to Hom Way’s arrest.

John M. Harlan II:

— Hom Way, as for that?

Edward Bennett Williams:

No sir.

Arthur J. Goldberg:

Is this — is Mr. Hom Way (Inaudible) to trial?

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 —

Earl Warren:

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

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.

Edward Bennett Williams:

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, —

Potter Stewart:

But what were the circumstances under which the home of Wong Sun was entered?

They didn’t break in there, did they?

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.

William J. Brennan, Jr.:

What was the substantive (Inaudible)

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.

Potter Stewart:

But this — this was not a jury trial?

Edward Bennett Williams:

It was not a jury trial, Your Honor.

Earl Warren:

What happened to Yee?

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.

William J. Brennan, Jr.:

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?

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 —

John M. Harlan II:

I thought the — I thought they conceded that he might be his guest.

I thought you said that a fortiori when the (Inaudible) happened.

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.

Edward Bennett Williams:

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 —

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Yes.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Yes.

Arthur J. Goldberg:

(Inaudible)

Edward Bennett Williams:

Yes.

Arthur J. Goldberg:

(Inaudible)

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.

John M. Harlan II:

Or they say — that they don’t have to stand on that position.

Edward Bennett Williams:

And they don’t stand on it.

John M. Harlan II:

Oh, I said that, is that wrong?

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?

Edward Bennett Williams:

No sir, no sir.

Earl Warren:

This is the only thing they have to say about it.

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.

Tom C. Clark:

The agent was Chinese, wasn’t he?

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 —

Tom C. Clark:

(Inaudible) that knowing he had the right man and knowing he’s at the right laundry (Inaudible)

Edward Bennett Williams:

Mr. Wong was, yes sir.

Tom C. Clark:

(Inaudible)

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.

Tom C. Clark:

Does the record shows that he went to any other laundry?

Edward Bennett Williams:

The record is silent on that.

Tom C. Clark:

What day of the week was it?

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.”

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?

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.

Edward Bennett Williams:

Now, I get —

Tom C. Clark:

I thought it was when he flee?

Edward Bennett Williams:

I’m sorry?

Tom C. Clark:

I though it was when he flee, it’s when he went after him?

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 —

Tom C. Clark:

I’d like to ask you, if we go back in a moment, do you mind?

Edward Bennett Williams:

No sir.

Tom C. Clark:

(Inaudible)

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 —

Tom C. Clark:

Is it just one facet or is that the total ground?

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.

Tom C. Clark:

He told then that he thought he was Toy.

Edward Bennett Williams:

That’s all.

Tom C. Clark:

And that —

Edward Bennett Williams:

From Blackie Toy and Blackie Toy — and no place in this record is equated with James Wah Toy, no place.

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?

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.

Tom C. Clark:

I wonder if, under your contention, maybe summon could’ve been issued then.

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 —

Byron R. White:

(Inaudible)

Edward Bennett Williams:

Oh, I think that adds a very important factor to what is — is here.

Byron R. White:

(Inaudible)

Edward Bennett Williams:

Yes.

John M. Harlan II:

Or your real contention is the absence of an oath makes a difference.

Edward Bennett Williams:

In this — in this case, I think it does, yes sir.

John M. Harlan II:

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?

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.

Byron R. White:

Do you think that your (Inaudible)

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.

Byron R. White:

(Inaudible)

Edward Bennett Williams:

Alright, I don’t know what was in their minds.

Byron R. White:

(Inaudible)

Edward Bennett Williams:

I’m — I have to argue this case from the record, yes sir.

Tom C. Clark:

I understood you to say that, at 5:30, Hom Way — is that Hom Way?

Edward Bennett Williams:

Way.

Tom C. Clark:

— who made a statement (Inaudible)

Edward Bennett Williams:

Yes sir.

Tom C. Clark:

And that they looked through all the laundry shops at six o’clock.

Edward Bennett Williams:

6:30 a.m.

Tom C. Clark:

It’s just an hour, I think.

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.

Tom C. Clark:

Toy was arrested at 6:30?

Edward Bennett Williams:

6:30 a.m.

Now —

William J. Brennan, Jr.:

(Inaudible)

Edward Bennett Williams:

Yes sir.

William J. Brennan, Jr.:

Can you make any point of (Inaudible) in relation to the narcotics agent entry, carrying on (Inaudible)

Edward Bennett Williams:

Oh, yes.

William J. Brennan, Jr.:

(Inaudible)

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.

Edward Bennett Williams:

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 —

William J. Brennan, Jr.:

What’s about ‘the authority’?

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.

William J. Brennan, Jr.:

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?

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.

William J. Brennan, Jr.:

Well, does the record show after the (Inaudible) did he had any opportunity to say why he was there?

As I understand it —

Edward Bennett Williams:

He had a clear —

William J. Brennan, Jr.:

— the door was really slammed in Yee’s place.

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.”

Tom C. Clark:

Of course, the door was never opened.

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 —

William J. Brennan, Jr.:

(Inaudible)

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.

Edward Bennett Williams:

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?

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?

Edward Bennett Williams:

It was, yes sir.

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?

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 —

Potter Stewart:

Of course the — implication of somebody else that if we say, “Well, I haven’t got any, but John Smith has it.”

Edward Bennett Williams:

Well whatever —

Potter Stewart:

That’s not a confession, that’s not an admission.

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 —

Potter Stewart:

It certainly makes a difference —

Edward Bennett Williams:

— in the admission.

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 —

Edward Bennett Williams:

But —

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?

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.

William J. Brennan, Jr.:

I believe the actual statement he made at that time, however, standing alone was exculpatory not inculpatory, wasn’t it?

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.

William J. Brennan, Jr.:

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.

Edward Bennett Williams:

Yes sir.

William J. Brennan, Jr.:

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?

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.

Tom C. Clark:

I thought they use it as a lead.

Edward Bennett Williams:

They used — they offered this as evidence Mr. Justice Clark.

William J. Brennan, Jr.:

Let’s see — that is evidence, “I saw them there last night that that wouldn’t involve participation by the speaker —

Edward Bennett Williams:

It’s why I’d say —

William J. Brennan, Jr.:

— in a crime.

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.

William J. Brennan, Jr.:

Well, would that, standing alone, have been evidence or not?

Edward Bennett Williams:

An evidence in the —

William J. Brennan, Jr.:

— before the conviction.

Edward Bennett Williams:

That statement?

No sir.

No sir because it was not throughout under your hypothetical question.

Tom C. Clark:

Do narcotics agents have any –have any statutory power of arrest under these?

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.

William J. Brennan, Jr.:

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 —

Edward Bennett Williams:

— a private car.

William J. Brennan, Jr.:

There’s no question that the statement there taken was in effect the confession of drunk and driving, was it?

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 —

William J. Brennan, Jr.:

He was given then — gave him a drunk and dri — drunkenness test or something like that?

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.

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?

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.

Hugo L. Black:

That the arrest was what?

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 —

Hugo L. Black:

But there was evidence that tended to show or do you mean a presumption —

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.

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?

Edward Bennett Williams:

The finding by the Court of Appeals?

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 —

Edward Bennett Williams:

Yes.

Hugo L. Black:

There should be an inference found that the arrest was unlawful.

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 —

Hugo L. Black:

I understand that, but I’m starting back behind in the statement.

Is it — suppose this arrest was not unlawful —

Edward Bennett Williams:

Yes sir.

Hugo L. Black:

What about your case now?

Edward Bennett Williams:

If the arrest was lawful, then the evidence would be admissible.

Hugo L. Black:

And that’s it, it’s the only issue in the case?

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.

Arthur J. Goldberg:

Was there an inadmissible argument made that the unlawfulness of that corroboration with the statement does have —

Edward Bennett Williams:

Yes sir.

I haven’t —

Arthur J. Goldberg:

— would that hold that the (Inaudible)

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.

Edward Bennett Williams:

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.

John M. Harlan II:

Did the Court of Appeals deal with that contention?

Edward Bennett Williams:

Yes sir.

John M. Harlan II:

They overruled you on that, didn’t they?

Edward Bennett Williams:

Yes sir.

Earl Warren:

Mr. Doolittle.

J. William Doolittle, Jr.:

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 —

John M. Harlan II:

It does go down this chain reaction names, is Wong Tang the same as Sea Dog?

J. William Doolittle, Jr.:

Wong Sun is the same as Sea Dog.

John M. Harlan II:

And that’s Wong Sun?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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.

John M. Harlan II:

Is there anything in the record indicating whether or not these two petitioners had been convicted in narcotic offenses before?

J. William Doolittle, Jr.:

Wong Sun had been, yes.

That’s in the record.

John M. Harlan II:

It’s in the record?

J. William Doolittle, Jr.:

Yes, that’s right.

That was stipulated.

John M. Harlan II:

Anything to show that the agents knew that back before —

J. William Doolittle, Jr.:

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.

Arthur J. Goldberg:

Mr. Doolittle, the Government position is that issue of (Inaudible) warrant against the law?

J. William Doolittle, Jr.:

The Government hasn’t taken a position on that as Mr. Justice Harlan suggested because it doesn’t feel it has to.

Arthur J. Goldberg:

What do you think of that?

J. William Doolittle, Jr.:

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 —

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

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.

Hugo L. Black:

Well, that’s two o’clock in the morning, wasn’t it?

J. William Doolittle, Jr.:

Well, at this point it was about 5:30 or 6:00.

Hugo L. Black:

Well, what time did the United States Commissioner opened their office?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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, —

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?

J. William Doolittle, Jr.:

No, certainly not as a matter of law, Your Honor.

Earl Warren:

Well, what was it besides that fact that that would make him a reliable informer?

J. William Doolittle, Jr.:

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 —

Earl Warren:

What count?

Watching him if he was a narcotics violator?

J. William Doolittle, Jr.:

We assumed that, yes —

Earl Warren:

Will that —

J. William Doolittle, Jr.:

— the record doesn’t show.

Earl Warren:

— would that tend to increase his reliability?

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

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.

Earl Warren:

Yes, now —

J. William Doolittle, Jr.:

That will —

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?

J. William Doolittle, Jr.:

And nothing more than what I’ve indicated, Your Honor.

Earl Warren:

Just that?

J. William Doolittle, Jr.:

That’s the extent of it.

Earl Warren:

Then, if that is all there is in the record, you would not say that that constituted a probable cause, would you?

J. William Doolittle, Jr.:

Well, considering the ways in which we think it was corroborated, yes.

We think that it might have been probable cause.

Earl Warren:

Would you mind telling us in what ways it was corroborated?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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.

Earl Warren:

Very well.

We can eliminate that part from the case then, can’t we?

J. William Doolittle, Jr.:

No, we can’t eliminate it.

And that’s —

Earl Warren:

But why?

Why can’t we, if you refuse to take the position that it is sufficient.

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

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 —

Earl Warren:

That wasn’t because —

J. William Doolittle, Jr.:

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.

Tom C. Clark:

Suppose he had taken Way, with the information that (Inaudible) with this agent, would that be sufficient information?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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.

John M. Harlan II:

Was this gentleman known generally in the business as Blackie?

The record doesn’t show that?

J. William Doolittle, Jr.:

The record doesn’t show that.

John M. Harlan II:

It doesn’t show it.

J. William Doolittle, Jr.:

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 —

Arthur J. Goldberg:

To make an investigation not to make any reference.

J. William Doolittle, Jr.:

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 —

Potter Stewart:

So far as the equating Blackie Toy and —

J. William Doolittle, Jr.:

Yes sir.

Potter Stewart:

— Wah Toy?

J. William Doolittle, Jr.:

Yes sir.

Potter Stewart:

That — that’s the deficiency to which you refer?

J. William Doolittle, Jr.:

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 —

William J. Brennan, Jr.:

Now wait a minute —

J. William Doolittle, Jr.:

— the count — I’m sorry.

William J. Brennan, Jr.:

Mr. Doolittle?

J. William Doolittle, Jr.:

Yes sir.

William J. Brennan, Jr.:

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.

J. William Doolittle, Jr.:

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 —

William J. Brennan, Jr.:

What page?

J. William Doolittle, Jr.:

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 —

William J. Brennan, Jr.:

Do you think it is a rather —

J. William Doolittle, Jr.:

— the inference to be drawn from that is that, you see this is —

William J. Brennan, Jr.:

Well — how was Toy supposed to hear him through the closed door?

J. William Doolittle, Jr.:

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 —

William J. Brennan, Jr.:

Even though he did hold up a laundry ticket, didn’t he?

J. William Doolittle, Jr.:

Oh, that might have been what he did.

Earl Warren:

Well then, didn’t that —

J. William Doolittle, Jr.:

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.

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.

J. William Doolittle, Jr.:

After I opened the door and I told him I didn’t opened until 8:30, that’s right.

Earl Warren:

Now, what is there in that to indicate that he told him —

J. William Doolittle, Jr.:

Well —

Earl Warren:

— told him before?

J. William Doolittle, Jr.:

Perhaps the — perhaps the inference could be drawn either way.

J. William Doolittle, Jr.:

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 —

Earl Warren:

Do they usually — do narcotic agents usually talk in Chinese?

J. William Doolittle, Jr.:

I would guess that Chinese agents in San Francisco do, Your Honor.

Earl Warren:

You guess that from the records?

J. William Doolittle, Jr.:

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.

Earl Warren:

Was there any interpretation either to or from him in the trial?

J. William Doolittle, Jr.:

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 —

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)

J. William Doolittle, Jr.:

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.

Hugo L. Black:

May I ask you this?

Hugo L. Black:

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?

J. William Doolittle, Jr.:

Absolutely, Your Honor.

That is our contention.

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.

J. William Doolittle, Jr.:

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.

Hugo L. Black:

Could not be less or more?

It doesn’t have to be less or more?

J. William Doolittle, Jr.:

That’s right.

It’s the same thing.

Tom C. Clark:

That’s why it’s whether or not the (Inaudible)

J. William Doolittle, Jr.:

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 —

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 —

J. William Doolittle, Jr.:

Well —

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.

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

Well, Your Honor under the circumstances it seems to me this is flight.

There’s no —

Earl Warren:

Is there authority —

J. William Doolittle, Jr.:

— there’s no suggestion that he never —

Earl Warren:

Is there any authority for it?

J. William Doolittle, Jr.:

I’m sorry?

Earl Warren:

I just asked if any of these cases were authority for that.

J. William Doolittle, Jr.:

Not direct authority for that particular proposition, Your Honor, no.

Tom C. Clark:

Then, what are these?

J. William Doolittle, Jr.:

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.

John M. Harlan II:

Mr. Doolittle, are there any published figures as to the number of narcotic arrests compared — with the warrant as against to those —

J. William Doolittle, Jr.:

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.

Potter Stewart:

The District Court didn’t make any clear ruling one way or the other.

J. William Doolittle, Jr.:

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.

Potter Stewart:

Which is simply not clear.

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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.

Earl Warren:

Do you arrive at that conclusion, Mr. Doolittle, because of the very nature of the narcotics?

J. William Doolittle, Jr.:

Yes sir, basically.

Earl Warren:

That question or because of the reliability of the information that they had?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

I’ll — again, in developing that point a little more detail —

Earl Warren:

That (Voice Overlap)

J. William Doolittle, Jr.:

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.

Earl Warren:

Do you believe this — this case brings certainty to the mind?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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 —

William J. Brennan, Jr.:

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.

J. William Doolittle, Jr.:

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.

William J. Brennan, Jr.:

Well, but he say substantially that, “I saw it there last night” or whatever it was, that’s the way —

Arthur J. Goldberg:

That’s at page 49 of the record, (Inaudible)

J. William Doolittle, Jr.:

Well, Your Honor that’s — that’s a —

William J. Brennan, Jr.:

The course of where —

J. William Doolittle, Jr.:

49, it’s a summary by the — by counsel.

The testimony — the only place for the conversation actually appears at page 63.

Arthur J. Goldberg:

The counsel is the District Attorney?

J. William Doolittle, Jr.:

That’s right, Your Honor.

But I —

Arthur J. Goldberg:

(Inaudible)

J. William Doolittle, Jr.:

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.

William J. Brennan, Jr.:

Now, just a minute, at 63, what — is this which tell us as the (Voice Overlap) —

J. William Doolittle, Jr.:

This had — this is where the conversation is set forth in detail yes, Your Honor.

William J. Brennan, Jr.:

Oh, I asked him how much stuff Johnny had and he said he had about a piece that Johnny had a (Inaudible) —

J. William Doolittle, Jr.:

Right.

William J. Brennan, Jr.:

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?

J. William Doolittle, Jr.:

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.

J. William Doolittle, Jr.:

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.

William J. Brennan, Jr.:

Let’s say, Mr. Doolittle, this has the reference I gather to that which was taken from Yee, isn’t it?

J. William Doolittle, Jr.:

That is right, Your Honor.

William J. Brennan, Jr.:

And these petitioners’ possession of that particular —

J. William Doolittle, Jr.:

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 —

William J. Brennan, Jr.:

But all —

J. William Doolittle, Jr.:

— there was sufficient.

William J. Brennan, Jr.:

But all of — everything you’ve mentioned so far has been something that a petitioner stated as that his —

J. William Doolittle, Jr.:

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.

Earl Warren:

Would you mind detailing just what corroboration there is of Toy’s guilt — or his confession rather.

J. William Doolittle, Jr.:

Alright, Toy confessed that on a number of occasions he had driven Wong Sun to Yee’s house.

Earl Warren:

Yes.

J. William Doolittle, Jr.:

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.

Earl Warren:

Now are you — you’re detailing the — the corroborated reference —

J. William Doolittle, Jr.:

I’m endeavoring —

Earl Warren:

— against Toy?

J. William Doolittle, Jr.:

Yes sir.

Earl Warren:

Against Toy?

J. William Doolittle, Jr.:

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.

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.

J. William Doolittle, Jr.:

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.

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?

J. William Doolittle, Jr.:

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.

Earl Warren:

But you think he went that far, did he?I thought you specifically said, “I just saw (Voice Overlap) —

J. William Doolittle, Jr.:

Well, I’m just saying, I’m just saying — he wouldn’t even go that far.

He recognized —

Earl Warren:

Yes.

J. William Doolittle, Jr.:

— 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.

J. William Doolittle, Jr.:

We do believe that that corroboratory evidence was completely divorced from the arrest.

Earl Warren:

That goes back — all goes back to the validity of the arrest, does it not?

If it —

J. William Doolittle, Jr.:

Well, our contention —

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?

J. William Doolittle, Jr.:

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.

Earl Warren:

We’ll recess now.

Mr. Williams.

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.”

Earl Warren:

What page are you reading from?

Edward Bennett Williams:

Page 38 of the record Mr. Chief Justice, at the bottom.

Earl Warren:

Oh — oh, yes.

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.

Edward Bennett Williams:

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.

Edward Bennett Williams:

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 —

William O. Douglas:

Is that the — the case for Judge Fahy?

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.

William J. Brennan, Jr.:

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)

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 —

William J. Brennan, Jr.:

Well, wasn’t the —

Edward Bennett Williams:

— statement because the possession was in Yee.

William J. Brennan, Jr.:

What was the — wasn’t the statements that (Inaudible) is the last piece that was delivered to Johnny Yee the night before?

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.

William J. Brennan, Jr.:

(Inaudible)

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.

Edward Bennett Williams:

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.

John M. Harlan II:

Could I put a question to you on —

Edward Bennett Williams:

Yes sir.

John M. Harlan II:

— probable cause again?

Edward Bennett Williams:

Yes sir.

John M. Harlan II:

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?

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.

Byron R. White:

(Inaudible)

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.

Byron R. White:

(Inaudible)

Edward Bennett Williams:

Yes sir.

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 —

Edward Bennett Williams:

Thank you sir.

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.

J. William Doolittle, Jr.:

Thank you, Mr. Chief Justice.