Cheng Wai v. United States, No. 193.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtPER CURIAM
Citation125 F.2d 915
PartiesCHENG WAI v. UNITED STATES.
Decision Date21 February 1942
Docket NumberNo. 193.

125 F.2d 915 (1942)

CHENG WAI
v.
UNITED STATES.

No. 193.

Circuit Court of Appeals, Second Circuit.

February 21, 1942.


Samuel B. Wasserman, of New York City, for appellant.

125 F.2d 916

Mathias F. Correa, U. S. Atty., of New York City (John Matthew Cannella, of New York City, of counsel), for appellee.

Before SWAN, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

PER CURIAM.

This proceeding to suppress evidence was commenced by an order to show cause directed to the United States attorney, and was heard upon supporting and opposing affidavits. The petition alleged that in the early morning of April 11, 1941, federal narcotic agents broke into the room where the petitioner was sleeping, searched his apartment without a warrant, found narcotics which belonged to him and placed him under arrest. In justification of their conduct the agents filed affidavits asserting that they detected the odor of opium coming from the apartment, and while one of them remained at the door, the other went upon a fire escape and through a rear window saw the petitioner at a stove upon which was a pan, a five tael opium can and a number of small tin containers known as "toys". He was placing covers upon these toys and apparently had been mixing honey and opium for the purpose of diluting smoking opium. Other details of what agent Teets observed need not be recited. He entered through the window, opened the door for the other agent and placed Cheng Wai under arrest. They then searched the apartment consisting of two rooms and a bath room and found the opium which he admits to be his. In his replying affidavit the appellant merely denied that "the statements" made in agent Teets' affidavit "are in accord with the facts" and prayed for a hearing "for the purpose of having the facts presented to the Court as they actually occurred." The district judge ruled that testimony was unnecessary, as the facts were sufficiently set forth to enable him to dispose of the petition, which he denied.

Since the proceeding to suppress evidence was commenced before any indictment against the appellant, it is clear upon the authorities that it is an independent proceeding and the order made therein is appealable. Perlman v. United States, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159; Cogen v. United States, 278 U.S. 221, 225, 49 S.Ct. 118, 73 L.Ed. 275; In re Milburne, 2 Cir., 77 F.2d 310; In re Sana Laboratories,...

To continue reading

Request your trial
27 practice notes
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...his motion to suppress. United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d We hold the order made by the Distric......
  • Perkins v. Endicott Johnson Corporation, No. 218.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 6, 1942
    ...appeal. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915 and cases there cited. (b) Also, if a person, whether a party or a "stranger," refuses to obey a court order directing him to produce papers or to......
  • United States v. Koenig, No. 18355.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1961
    ...7, 38 S.Ct. 290 F.2d 171 417, 62 L.Ed. 950; Davis v. United States, 5 Cir., 1943, 138 F.2d 406; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915. This Court has drawn the line at a stage earlier than indictment. Zacarias v. United States, 5 Cir., 1958, 261 F.2d 416, certiorari denied ......
  • Di Bella v. United States United States v. Koenig, Nos. 21 and 93
    • United States
    • United States Supreme Court
    • March 19, 1962
    ...Poller, 43 F.2d 911 (1930); In re Milburne, 77 F.2d 310 (1935); United States v. Edelson, 83 F.2d 404 (1936); Cheng Wai v. United States, 125 F.2d 915 (1942); Lagow v. United States, 159 F.2d 245 (1946); In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (1947); Lapides v. United States, 215 F.2d 25......
  • Request a trial to view additional results
27 cases
  • Di Bella v. United States, No. 349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 23, 1960
    ...his motion to suppress. United States v. Poller, 2 Cir., 1930, 43 F.2d 911, 74 A.L.R. 1382; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915; cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494; United States v. Russo, 2 Cir., 1957, 241 F.2d We hold the order made by the Distric......
  • Perkins v. Endicott Johnson Corporation, No. 218.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 6, 1942
    ...appeal. Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915 and cases there cited. (b) Also, if a person, whether a party or a "stranger," refuses to obey a court order directing him to produce papers or to......
  • United States v. Koenig, No. 18355.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 12, 1961
    ...7, 38 S.Ct. 290 F.2d 171 417, 62 L.Ed. 950; Davis v. United States, 5 Cir., 1943, 138 F.2d 406; Cheng Wai v. United States, 2 Cir., 1942, 125 F.2d 915. This Court has drawn the line at a stage earlier than indictment. Zacarias v. United States, 5 Cir., 1958, 261 F.2d 416, certiorari denied ......
  • Di Bella v. United States United States v. Koenig, Nos. 21 and 93
    • United States
    • United States Supreme Court
    • March 19, 1962
    ...Poller, 43 F.2d 911 (1930); In re Milburne, 77 F.2d 310 (1935); United States v. Edelson, 83 F.2d 404 (1936); Cheng Wai v. United States, 125 F.2d 915 (1942); Lagow v. United States, 159 F.2d 245 (1946); In re Fried, 161 F.2d 453, 1 A.L.R.2d 996 (1947); Lapides v. United States, 215 F.2d 25......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT