288 F.2d 366 (9th Cir. 1961), 16960, Wong Sun v. United States

Docket Nº:16960.
Citation:288 F.2d 366
Party Name:WONG SUN and James Wah Toy, Appellants, v. UNITED STATES of America, Appellee.
Case Date:March 10, 1961
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 366

288 F.2d 366 (9th Cir. 1961)

WONG SUN and James Wah Toy, Appellants,

v.

UNITED STATES of America, Appellee.

No. 16960.

United States Court of Appeals, Ninth Circuit.

March 10, 1961

Rehearing Denied April 12, 1961.

Page 367

Sol A. Abrams, San Francisco, Cal., for appellants.

Laurence E. Dayton, U.S. Atty., John Kaplan, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

HAMLIN, Circuit Judge.

An indictment in two counts was filed in the United States District Court for the Northern District of California, Southern Division, charging Wong Sun and James Wah Toy, hereinafter called the appellants, in the first count with conspiracy to violate the narcotic laws, 21 U.S.C.A. § 174, and in the second count with a violation of 21 U.S.C.A. § 174 in that they 'did fraudulently and knowingly counceal, transport and facilitate the transportation and concealment of a narcotic, to-wit, heroin, then and there knowing the same to have been transported and brought into the United States contrary to law.' After pleading not guilty, the appellants waived a jury and were tried by the district judge. They were convicted on the charge contained in the second count of the indictment and have appealed to this court. This court has jurisdiction of the appeal under 28 U.S.C.A. § 1291.

The evidence showed that on June 4, 1959, at about 2 a.m., federal narcotic agents arrested one Hom Way for a narcotic violation. He told the agents that he had purchased an ounce of heroin the night before from a person known as Blackie Toy who operated a laundry on Leavenworth Street in San Francisco. At the time he was arrested, Hom Way possessed narcotics, but the agents had

Page 368

no reason to believe that he had previously been arrested or convicted for narcotic violations. One agent testified that he had known Hom Way for about six weeks, but that Hom Way had not given him any information before as to any trafficking in narcotics by other persons. The agents then proceeded to 1733 Leavenworth Street, which premises consisted of a laundry in front and living quarters in the rear. There is some conflict in the testimony as to what occurred there, but in view of the conviction of the appellants, we shall take the version most favorable to the government. A government agent testified that he arrived at this address at approximately 6:30 a.m., rang the bell, and knocked on the door. Appellant Toy opened the door part way, and the agent told him that he wanted some laundry and dry cleaning things. Toy replied, 'I don't open till eight o'clock, ' and told him to come back later. The agent then testified, '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 * * * inside his living quarters.' The agent then forced the door open 1 and went in, following Toy who ran into the room where his wife was sleeping in bed with a baby. The agent ran across the room and grabbed him, saving, 'Just stay where you are; you are under arrest.' Toy was then handcuffed.

The premises were searched, but no narcotics were found. It is undisputed that at the time of this arrest the agents did not have an arrest warrant, nor did they have a search warrant. The record shows that while at the premises a narcotic agent said to Toy, 'We understand you were furnishing narcotics to Hom Way, ' and Mr. Toy said, 'No, I wasn't.' The agent replied, 'Well, we just talked to him. He is under arrest, and he says he got narcotics from you.' Toy replied, 'No, I haven't been selling any narcotics at all. However, I do know somebody who has.' When the agent asked who, Toy replied, 'Well, I only know him as Johnnie. I don't know his last name.' He then told the agent where Johnnie lived, telling him the type and color of the house. According to the agent, Toy then said that he had been there the night before. The agent asked him how much 'stuff' Johnnie had and Toy said that he had about a 'piece.' 2 He said that Johnnie had a bedroom in this house, upstairs 'in his folks' house.' The agents then went out to Johnnie's house, found Johnnie Yee in an upstairs bedroom and in a dresser drawer found some white paper bindles which contained heroin.

The evidence concerning the arrest of Wong Sun may be summarized as follows. On the morning of June 4 when the agents arrested Johnnie Yee, he told that one 'Sea Dog, ' as Yee knew him, together with appellant Toy, had brought the narcotic to Yee's home around the first of June. Johnnie Yee stated that he did not know of any other name but 'Sea Dog' and did not know where he lived. With this information the agents went back to appellant Toy and learned from him that 'Sea Dog' was Wong Sun and that he resided on Franklin Street. The agents then took Toy and drove out to Franklin Street where Toy pointed out where Wong Sun lived. An agent rang the doorbell and, after the door had been opened by a woman, he asked for Mr. Wong. This woman was on the landing of the stairs, but before she answered another lady, Betty Wong, appeared at the top of the stairs. The agent who rang the bell said that he was from the Federal Bureau of Narcotics. Another agent said, 'Hello, Betty, ' and they then went up the stairs and into a back room where they were told that Wong Sun was sleeping. Wong Sun was arrested and handcuffed, and the premises were searched.

The testimony shows that subsequent to the arrests each appellant separately was interviewed by a federal narcotic

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agent. The agent testified that before talking to the appellants he told each of them that he was entitled to the advice of an attorney; that he didn't have to answer the questions unless he voluntarily did so; and that the statements that he made could be used against him. Each was also told that the agent was making no promises of 'any bargains or deals or anything with him.' A discussion was then had with each appellant as to the circumstances of the narcotic transactions. There were questions and answers and the appellant being questioned was then asked to repeat the whole thing to the agent who at that time took it down in rough note form. Subsequently these notes were transcribed and a typewritten statement was prepared. Each appellant was shown his own statement, and it was read to him in English and also interpreted to him in Chinese. Toy 'read it out loud to me, and there was only one word he couldn't pronounce, was only one word he couldn't pronounce, then asked if he wished to sign his statement.

'He said he had no objection to doing so, but first he wanted to know if the others involved in this investigation or case had signed theirs. I said I couldn't give him that information in all fairness to other persons; and he said, 'Well, unless you can prove to me that they have signed theirs, I don't want to sign it.'

'I asked him if all the information contained in this statement which he had read and I had read to him were true and correct, and he stated, 'Yes, they were' * * *.'

A similar conversation was had with appellant Wong Sun in which he also said that all of the facts stated in the statement prepared by the agent were true, but he likewise refused to sign the statement. During the trial these statements were offered in evidence and were admitted over the objection of appellants. The statement made by each appellant to the agent was sufficient to amount to a confession that such appellant, together with the other appellant, transported heroin to Yee's house and left it there.

Upon this appeal appellants rely mainly upon the following points: (1) That the arrest of each appellant was an illegal arrest, having been made without a warrant of arrest and without probable cause therefor; (2) That since the arrests were illegal, the confessions of appellants were improperly received in evidence, being the results of illegal arrests; (3) That the information received by the agents prior to the confession of Toy and Wong Sun could not be used because it was 'the fruit of the poisonous tree'; (4) That the confession of each appellant was improperly admitted into evidence, because there was no proof of a corpus delicti; (5) That the admission in evidence of each of the written statements prepared by the agent after his conversation with each appellant was improper.

We shall consider these points in the above order.

An arrest without a warrant may not be made unless the officer making the arrest has 'probable cause' within the meaning of the Fourth Amendment and 'reasonable grounds' within the meaning of the Narcotic Control Act of 1956 3 to believe that the person arrested had committed or was committing a violation of the narcotic laws. If the officer making the arrest has such a belief, the arrest, though without a warrant, is lawful. Rodgers v. United States, 9 Cir., 1...

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