Wong Sun v. United States

PETITIONER:Wong Sun and James Wah Toy
RESPONDENT:United States
LOCATION:James Wah Toy’s Laundry

DOCKET NO.: 36
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 371 US 471 (1963)
ARGUED: Mar 29, 1962 / Apr 02, 1962
REARGUED: Oct 08, 1962
DECIDED: Jan 14, 1963
GRANTED: Oct 09, 1961

ADVOCATES:
Archibald Cox – Solicitor General, Department of Justice, for the United States
Edward Bennett Williams – acting under appointment by the Court, for the petitioners
J. William Doolittle, Jr. – reargued the cause for the United States

Facts of the case

Police arrested Hom Way for possession of heroin. While under arrest, Way told police that a man named “Blackie Toy” once sold him an ounce of heroin at his laundry on Leavenworth St. Later that day, police found a laundry run by James Wah Toy. Nothing on the record identified Toy as “Blackie Toy”, but police arrested him anyway. Police then went to Toy’s house where they arrested Johnny Yee and found several tubes containing less than one ounce of heroin. Police also arrested Wong Sun. Police interrogated the men and wrote statements in English for them to sign. Both men refused, citing errors in the statements. At trial in U.S. District Court, Toy and Sun were convicted on federal narcotics charges. On appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed.

Question

(1) Were the petitioners’ arrests lawful?

(2) Were the petitioners’ unsigned statements admissible as evidence?

Earl Warren:

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

Mr. Williams, you may continue your argument.

Edward Bennett Williams:

Mr. Chief Justice, may it please the Court.

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

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

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

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

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

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

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

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

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

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

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

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

The facts were these.

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

The taxi cab was abandoned by its driver.

The police came on the scene.

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

They made an unlawful entry into his home.

They went to the second floor, they found him.

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

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

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

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

Potter Stewart:

Before you —

Edward Bennett Williams:

— bar —

Potter Stewart:

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

Edward Bennett Williams:

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

Edward Bennett Williams:

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

Self-incrimination?

Edward Bennett Williams:

Yes, sir.

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

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

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

Judge Learned Hand wrote for unanimous court.

The facts were these.

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

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

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

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

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

He was arrested and the whiskey was seized.

He went to trial.

A motion was filed to suppress the evidence.

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

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

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

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

Felix Frankfurter:

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

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

Edward Bennett Williams:

I feel —

Felix Frankfurter:

I think that’s far.

Edward Bennett Williams:

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

Felix Frankfurter:

I understand that but forget that.

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

Edward Bennett Williams:

I am not attacking as its being coerced expect insofar as an unlawful arrest as elements of coercion in it.

Felix Frankfurter:

Well, can’t we agree either this is a coerced — to me, they’re two different documents namely, a coerced confession stands on inadmissibility on the ground that this it was coerced.

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

Edward Bennett Williams:

That’s true.

Felix Frankfurter:

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

Edward Bennett Williams:

That is true Your Honor but —

Felix Frankfurter:

Now, therefore I want to ask —

Edward Bennett Williams:

I —

Felix Frankfurter:

I understand what you add.

But that’s a different argument.

I don’t like to mix — one does mix his drink, I don’t like to do it myself.

Edward Bennett Williams:

I of course, have to say —

Felix Frankfurter:

But which is which?

Which are you standing on?

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

Edward Bennett Williams:

I say two things Mr. Justice Frankfurter.

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

Felix Frankfurter:

(Voice Overlap)

Edward Bennett Williams:

— the — and this would be profiting from their own wrongdoing because it is caused by an illegal arrest.

I say secondly —

Felix Frankfurter:

Now, wait a minute, are you — is that — is that a period?Is that at that end of the sentence?

Edward Bennett Williams:

It is —

Felix Frankfurter:

That’s a separate argument.

Edward Bennett Williams:

It’s the end of the sentence but it’s not the end of my thought, sir.

Felix Frankfurter:

No, but that’s an argument by itself or isn’t?

Edward Bennett Williams:

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

Felix Frankfurter:

Well, can I then address myself to the first part of your argument?

Edward Bennett Williams:

Yes, sir.

Felix Frankfurter:

What happened to your thought?

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

Edward Bennett Williams:

I am saying exactly that Mr —

Felix Frankfurter:

Alright.

Edward Bennett Williams:

— Justice Frankfurter unless the effect of the involuntarily arrest is terminated in one of three ways that occurred to me, by his arraignment, by representation of counsel or by his release.

Felix Frankfurter:

You mean their statements come afterwards but if the statements — I’m not combating you.

I’m not —

Edward Bennett Williams:

Yes, sir.

Felix Frankfurter:

— disagreeing with you.

Edward Bennett Williams:

Yes, sir.

Felix Frankfurter:

I’m trying to find out —

Edward Bennett Williams:

I understand, sir.

Felix Frankfurter:

— with greater clarity than I best so far as ascertain what is in your mind?

That’s all I’m trying to do.

Edward Bennett Williams:

If —

Felix Frankfurter:

And I want to know my — I don’t care about yes or no answers usually.

But I think this is susceptible of an answer.

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

Edward Bennett Williams:

Yes, sir.

Felix Frankfurter:

Alright, now I understand it.

Edward Bennett Williams:

Yes, sir.

Earl Warren:

Do we have to go that far in this case?

Edward Bennett Williams:

We don’t have to go that far in this case.

Earl Warren:

Isn’t this the arrest that came at 6:30 in the morning?

Edward Bennett Williams:

Yes, sir.

Earl Warren:

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

Edward Bennett Williams:

Yes, sir.

Earl Warren:

It might be an element of coercion there.

Edward Bennett Williams:

That’s why I haven’t abandoned that Mr. Chief Justice.

I haven’t abandoned that argument.

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

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

Felix Frankfurter:

I understand.

Edward Bennett Williams:

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

Felix Frankfurter:

On — and that — on that attitude, on that view, it doesn’t make any difference whether the wife and the child were present.

Edward Bennett Williams:

I think it doesn’t make any difference too as far as —

Felix Frankfurter:

On that view, it may — it maybe an ingredient in determining coercion.

Edward Bennett Williams:

But it doesn’t make any difference.

Felix Frankfurter:

Alright.

Edward Bennett Williams:

I subscribe to that on that view.

Felix Frankfurter:

Alright.

Edward Bennett Williams:

Yes, sir.

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

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

I refer to the District of Columbia.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It must be corroborated.

Each element to the offense must be corroborated.

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

Edward Bennett Williams:

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

The statute says that possession alone will support a conviction.

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

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

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

Earl Warren:

You have very little but I’ll — I’ll give you five minutes more to, if — if you desire.

Mr —

Felix Frankfurter:

Thank you sir.

Earl Warren:

— whatever.

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

Archibald Cox:

May it please the Court.

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

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

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

Did that occurs in the Fourth?

Archibald Cox:

I meant the Fourth, yes.

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

Earl Warren:

Well, the court below found that it was illegal, didn’t it?

Archibald Cox:

The court — there was no — that there was no error in the trial court’s finding that the arrest was lawful and in the judgment of the court below.

Now, the trial court —

Earl Warren:

The Court of Appeals —

Archibald Cox:

— found that the — to the trial court didn’t find that the arrests were illegal.

Earl Warren:

The Court of Appeals specifically found that it was illegal, isn’t it?

Archibald Cox:

The Court of Appeals and we think that it erred in that — in that statement.

No error in the judgment below it.

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

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

They asked the District Court to exclude three things.

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

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

Archibald Cox:

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

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

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

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

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

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

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

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

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

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

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

Felix Frankfurter:

When you say it doesn’t involve an illegal question but merely a question of fact —

Archibald Cox:

No the — well, it’s a legal conclusion.

Felix Frankfurter:

This Court divides frequently.

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

Archibald Cox:

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

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

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

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

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

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

Felix Frankfurter:

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

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

Archibald Cox:

The Brinegar case, it seems to me to be a possibility, that’s in that category.

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

This Court was asked to revert it.

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

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

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

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

Archibald Cox:

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

Probable cause is reasonable ground for belief of guilt.

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

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

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

Let’s take Wah Toy first.

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

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

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

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

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

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

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

Could I ask you a question?

This maybe a little awkward be.

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

Archibald Cox:

I couldn’t say whether it is the usual practice.

I know it very commonly occur.

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

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

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

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

William J. Brennan, Jr.:

That was the — did Hom Way give them address, post address?

Archibald Cox:

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

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

William J. Brennan, Jr.:

What?

Archibald Cox:

Oye’s laundry.

O-Y-E’ – S.

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

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

Archibald Cox:

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

William J. Brennan, Jr.:

Was Agent Wong a Chinese?

Archibald Cox:

Yes, sir.

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

William J. Brennan, Jr.:

But the conversation with Toy was an English, was it?

Archibald Cox:

That doesn’t appear.

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

I don’t say it was.

I know that the agent was Chinese.

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

We know that he testified it in English.

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

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

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

William J. Brennan, Jr.:

Well, didn’t Mr. Williams —

Archibald Cox:

— at the door.

William J. Brennan, Jr.:

— suggest on — on Friday with there was something about that conversation to indicate that Toy might (Voice Overlap) —

Archibald Cox:

Well, he — he certainly suggested this.

He was drawing inferences.

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

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

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

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

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

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

It — I’ve returned to the reasonableness of the agents going.

Earl Warren:

Did the court appoint an interpreter for him?

Archibald Cox:

The court had an interpretive presence.

There were several members.

There were three Chinese here.

Archibald Cox:

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

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

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

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

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

William J. Brennan, Jr.:

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

Archibald Cox:

No, it does not.

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

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

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

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

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

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

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

Hom Way had been arrested.

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

Narcotics are very easily disposed of.

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

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

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

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

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

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

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

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

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

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

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

“He get the door one hand on the door.

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

Archibald Cox:

And he was talking to me through the door.

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

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

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

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

Running where?”

“Running inside his living quarter.”

“Could you see it?”

“Yes, sir.”

“What is it, a glass door?”

“Yes, it is glass door.”

“No obstruction, that is correct?”

“No, sir.”

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

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

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

At this point, he had the two things.

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

But he said he believed him to be reliable.

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

We’re now adding the information from Hom Way — Hom Way.

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

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

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

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

Let me look at it in another way.

Why else would the man have run?

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

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

It was daylight.

Archibald Cox:

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

The agent had identified himself before Wah Toy ran.

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

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

But there had been no intrusion.

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

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

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

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

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

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

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

Toy didn’t suggest any explanation.

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

You said he was taking long steps?

Archibald Cox:

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

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

Earl Warren:

The officer told two different stories to — to Wah Toy, didn’t he?

Archibald Cox:

The officer —

Earl Warren:

Came he — would he came, he —

Archibald Cox:

The officer —

Earl Warren:

— lied to him —

Archibald Cox:

— first asked the laundry.

That’s true.

Earl Warren:

Yes, he lied to him and said he was there for the laundry.

Archibald Cox:

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

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

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

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

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

Archibald Cox:

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

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

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

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

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

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

Felix Frankfurter:

Mr —

Archibald Cox:

— can be done very quickly.

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

Felix Frankfurter:

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

Archibald Cox:

Yes.

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

Felix Frankfurter:

No, I — I mean here.

Here, there was no opportunity.

Archibald Cox:

Here, there was no opportunity.

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

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

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

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

Earl Warren:

General, did they — did they have the right to arrest him at the time they went to the door?

Archibald Cox:

We make no such argument.

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

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

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

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

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

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

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

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

We think that it made a basic mistake there.

Archibald Cox:

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

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

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

(Voice Overlap)

Archibald Cox:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So he went in and followed him.

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

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

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

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

I have come to arrest you.

I asked admission.”

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

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

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

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

Archibald Cox:

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

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

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

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

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

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

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

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

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

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

And — but he couldn’t say who “Sea Dog” was.

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

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

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

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

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

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

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

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

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

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

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

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

She apparently knew him.

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

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

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

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

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

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

Archibald Cox:

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

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

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

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

There was nothing observed at Wah Toy’s house.

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

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

Felix Frankfurter:

You deal with the Nueslein case later but at this —

Archibald Cox:

I shall.

Felix Frankfurter:

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

Archibald Cox:

Yes, yes —

Felix Frankfurter:

— the opinion puts —

Archibald Cox:

yes.

Felix Frankfurter:

— in the quotation mark —

Archibald Cox:

Yes, it does.

Felix Frankfurter:

— found.

Now, was this found?

Archibald Cox:

Well, I’ve — I submitted that it was not.

Felix Frankfurter:

But it was found in the sense in which of course in this law.

Archibald Cox:

Well, I think there —

Felix Frankfurter:

I mean there maybe other distinctions but it was —

Archibald Cox:

Well, yes — yes, I — if I understand you correctly, it’s found —

Felix Frankfurter:

In quotation mark.

Archibald Cox:

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

There was certainly a coincidence in point of time.

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

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

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

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

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

Archibald Cox:

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

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

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

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

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

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

There’s a balance to be struck.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The confessions here were made four days after the arrest.

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

Archibald Cox:

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

Potter Stewart:

When you say they did arraign, do you mean they — they appear before United States Commissioner?

Archibald Cox:

They’ve been before United States Commissioner.

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

Potter Stewart:

And what happened there?

Archibald Cox:

Well, they were charged with narcotics violations.

The bail was set.

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

And they did it.

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

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

William J. Brennan, Jr.:

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

Archibald Cox:

It seems to me utterly irrelevant.

William J. Brennan, Jr.:

What — what’s the — what’s the chronology in that?

Archibald Cox:

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

There is no return.

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

William J. Brennan, Jr.:

But when the warrant was issued, were they actually in custody?

Archibald Cox:

Well, I — I don’t know anymore about it.

It appears here.

I —

William J. Brennan, Jr.:

I gather you were saying was that —

Archibald Cox:

There is no return from —

William J. Brennan, Jr.:

— (Voice Overlap) —

Archibald Cox:

— which I infer — from which infer that Wong Sun was physically present in the proceeding before the Commissioner when the warrant was issued.

But that is purely inference from this doctrine.

William J. Brennan, Jr.:

Well is that to suggest that the proceedings before the — there’s only one proceeding and that involve both?

Archibald Cox:

No, there were two proceedings, the one — the one for James Wah Toy and Johnny Yee.

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

That’s the day they were at the laundry.

Archibald Cox:

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

William J. Brennan, Jr.:

Well, the only — only thing I’m trying to get clear is were they in fact under arrest and detain at the time the warrant issued?

Archibald Cox:

Well, I don’t — there are only two possibilities and I can’t tell you how — which is the correct one.

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

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

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

Do you know anything about that?

Archibald Cox:

I don’t — we don’t have any additional information.

I do — Mr. Williams made something of it.

It seems to me that it’s utterly irrelevant.

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

Anyway, the arrest was completed at that point.

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

William J. Brennan, Jr.:

Now, in any of that, is it your position that the confessions admission to which objection is taken were given after they had been released on (Voice Overlap) —

Archibald Cox:

Oh, yes, sir.

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

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

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

There was three days in between.

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

There were three additional days.

William J. Brennan, Jr.:

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

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

Archibald Cox:

I would think it — it’s my position that it fits in for the exception.

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

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

It’s a rule dealing with unlawful detention.

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

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

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

Archibald Cox:

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

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

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

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

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

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

And the man said whiskey.

It’s within a dry area.

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

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

Now, in the suitcase case is obviously it is.

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

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

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

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

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

One was that he’s been drinking.

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

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

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

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

I don’t know.

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

There wasn’t any admission.

I think Nueslein that comes very close to that.

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

Now, here in our case —

Felix Frankfurter:

Before you move onto this case, what was the illegality in Nueslein?

Archibald Cox:

Well on first place the only offense was a misdemeanor and it wasn’t commented in their presence.

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

Archibald Cox:

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

No one knows.

It was an unlawful entry.

They had no permission —

Felix Frankfurter:

There was no — there was no unlawful arrest.

Was then arresting Nueslein?

Archibald Cox:

As I remember, he was taking down to the —

Felix Frankfurter:

Afterwards?

Archibald Cox:

— police station later.

Afterwards, yes.

Felix Frankfurter:

When the — when the utterance is made, when he shouted down —

Archibald Cox:

I don’t know if he’d been told — oh when he first shouted down, there hasn’t been any arrest.

Felix Frankfurter:

There’d been no arrest?

Was there —

Archibald Cox:

No.

Felix Frankfurter:

any illegality?

Archibald Cox:

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

Felix Frankfurter:

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

Archibald Cox:

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

They really don’t serve the purpose at all.

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

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

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

There was no pressure of that conduct.

It was an effort perhaps to divert suspicion from himself.

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

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

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

It was alleged that there was not probable cause.

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

Archibald Cox:

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

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

You’re rampaging through my clothes.

I’ll give it to you.”

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

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

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

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

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

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

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

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

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

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

Earl Warren:

We’ll recess now.