# Brief for the United States, Wong Sun v. United States/Summary of argument

Summary of Argument
The court of appeals considered petitioners' arrests to have been based on insufficient probable cause but held, in effect, that there was nothing in the arrest of petitioner Toy which required him to accuse Johnny Yee and to send the narcotics agents to Yee's house, and hence that the surrender of the narcotics by Yee could not be deemed the fruit of the arrest of Toy. Similarly, the unanticipated statements by Yee, which ​led on from him to petitioner Wong Sun and unexpectedly circled back to involve Toy as well, were not the fruit of the arrest of Toy. And the later confessions of Toy and Wong Sun, yet another stage removed, were likewise considered by the court of appeals not to be fruits of the arrests of either Toy or Wong Sun.
The government agrees with the court of appeals that the evidence introduced at the trial was not the product of the arrests. However, it is the government's initial position that that issue need not be reached because the judgments below may be sustained upon the ground that the arrests were lawful emergency arrests based upon probable cause.
I
Petitioners were lawfully arrested on probable cause.
A. In ruling that there was a lack of probable cause, the court of appeals unduly emphasized what is only one element in the determination of reliability—the receipt of prior information from an informant. Information may be given under such circumstances that it has the badge of reliability even if the informant has not previously had occasion to furnish information to the officers. The question is always whether, under the particular circumstances presented by the record, the officers acted reasonably. There is no mechanical rule forbidding reliance on information from an informant who has not previously been tested.
​B. At least two elements were operative in the arrest of Toy, and the government need not and does not attempt to rely on either element alone to show that the officers acted reasonably.
1. The first factor was the statement of Hom Way to the agents that he had obtained an ounce of heroin the night before from Toy. The agent had known Hom Way for six weeks and therefore had a basis for judging whether, under arrest, he would be likely to tell the truth or attempt to throw the agents off the scent. An investigator must have leeway to make an informed judgment as to the character of the persons with whom he must deal. Hom Way's designation of petitioner was not vitiated by the fact that Hom Way was himself under arrest; indeed, his statements, which were quite detailed, could be viewed with more confidence since he must have known that he could and would be confronted with any inconsistencies that might develop.
2. The second element is what occurred at Toy's place. The officers did not go to the door in a group, as would have been the case had an arrest been intended on the basis of Hom Way's statement alone; one officer went to investigate further by interviewing Toy, while the others remained nearby. The hour was early, 6:30 a.m., but it was daylight, not darkness. Moreover, the officers were on the trail of heroin, which is easily concealed or destroyed; word of Hom Way's arrest or even of his disappearance from his ordinary haunts could travel quickly.
The officer knocked, and when Toy opened the door, the agent began by asking for laundry. When Toy ​told the agent to return for his laundry later, the latter merely showed his badge and stated, "I am a federal narcotics agent." He said nothing about an arrest. There then occurred the action by Toy that forced upon the officer a split-second decision and demonstrated to him that immediate arrest was necessary. Toy slammed the door shut and fled toward the rear of the laundry. If he had narcotics on the premises he could conceal or destroy them in an instant. The door was not slammed when the man at the door inquired for laundry; it was slammed when the officer's badge was exhibited. The officer then had cause to believe Toy guilty, for an unexplained flight from an officer is strong indication of guilt.
3. Petitioners contend that the absence of affirmative evidence that the officer stated his purpose to arrest Toy brings the case within the prohibition of Miller v. United States, 357 U.S. 301. The language of Miller itself answers this contention. This Court there noted decisions (p. 309) "holding that justification for noncompliance [with the requirement of statement of purpose] exists in exigent circumstances, as, for example, when the officers may in good faith believe * * * that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6."
C. In the case of the arrest of Wong Sun, probable cause for arrest was provided by the combined, consistent statements of Yee and petitioner Toy. Yee's accusation of "Sea Dog" (Wong Sun) as the supplier (with Toy) of his narcotics was significantly corroborated before the officers went to arrest Wong ​Sun. Yee's statement that he had been furnished heroin was substantiated by his actual possession of the drug. His surrender of the narcotics to the officers, without a search, was not attended by any unlawful conduct by the officers. His statement that Toy had been one of the two who furnished the heroin was substantiated by Toy's detailed knowledge of Yee's possession of the narcotics, as revealed in Toy's earlier statement to the officers. Yee's tie-in of "Sea Dog" with Toy dove-tailed immediately thereafter with Toy's knowledge of the real name of "Sea Dog" Wong Sun and Toy's knowledge of where Wong Sun lived.
II
On the assumption that the arrests were illegal, petitioners contend that all the evidence obtained after those arrests, must be deemed the "fruits of the poisonous tree" and therefore inadmissible. While it is the rule that, if the evidence sought to be introduced is the true product of illegal government action it is excludable, it is not the rule that the mere fact that there has been illegal government action at some prior point is sufficient. If the evidence is attributable to an intervening act of free will on the part of the defendant and not to the illegal government action, the evidence is admissible. Whether evidence can be said to be the result of the illegal action or of an independent act of free will requires a judgment based on the precise facts of a given case. In particular, the question of whether a statement made at the time of illegal entry should be deemed admissible ​cannot be settled by any fixed rule but must essentially represent a judgment, based on all the circumstances, as to whether the illegal government action or the voluntary act of the defendant is the primary motivating force behind the evidence. In the present case, petitioners' statements to the officers were not the products of illegal arrests or entries, but of their own voluntary, deliberate decision to speak.
Nueslein v. District of Columbia, 115 F. 2d 690 (C.A.D.C.), held that, even though nothing was found after an illegal entry, certain statements made during the illegal entry were the result of the illegality and therefore inadmissible. Officers investigating only a misdemeanor, an accident in which a taxicab had struck a parked car, went to the home of the taxicab owner and entered the home without a warrant and without permission of the owner. The owner admitted that he had been driving the taxi and, since he appeared to the officers to be drunk, the officers placed him under arrest. The decision of the District of Columbia Circuit, in relating the admissions to the illegal entry when the illegal entry in no sense compelled the owner to talk, admittedly goes far, but it does hot go as far as would be necessary to go in the instant case of investigation of a narcotics felony. In Nueslein the admissions made by the taxicab owner were admissions of guilt as to the very act which prompted the officers to make the illegal entry, and those ​admissions were made by an intoxicated man. Here, petitioner Toy, although knowing that the officers had found nothing of what they sought, deliberately and voluntarily sent them to Johnny Yee in order to divert suspicion from himself. It was Hom Way's accusation of Toy which caused Toy to send the officers to Yee's house, and Hom Way's accusation in no way stemmed from the illegal entry. Toy merely saw an opportunity to sidetrack the officers from Hom Way's accusation, and consciously made use of that opportunity. In short, he would now have the Court bar evidence that he himself deliberately uncovered.
III
Petitioners' confessions were corroborated by substantial additional evidence, and the confessions disclosed such possession of narcotics as served to raise the statutory presumption of guilty knowledge.
A. Corroboration of a confession requires only evidence that will tend to establish its trustworthiness, and does not demand evidence sufficient to establish the corpus delicti independently. The special problem with respect to reliance on a confession arises out of concern whether a particular confession may be the product of "the aberration or weakness of the accused under the strain of suspicion" (Opper v. United States, 348 U.S. 84, 90). But if facts are shown, by evidence other than the confession, demonstrating that the confession is not a fantasy warped by the aberration or weakness of the accused, then the finder of fact may properly attribute the confession to the familiar motivation of an accused ​person who realizes that he has been caught and may as well tell the truth.
B. In the case of Wong Sun's confession, the trial judge could properly conclude that his chronicle, from the time of his first acquaintance with Toy, in March 1959, through his series of visits with Toy at Yee's house, terminating in the visits on or about June 1 and 3, was sufficiently corroborated to be accepted. The critical portion of the confession, i.e., Wong Sun's statement that he transported an ounce of heroin from his source of supply to Toy on the night of May 31, 1959, and that he and Toy then transported the heroin to Yee at Yee's house at about midnight, is firmly supported by the actual possession of 27 grams of the heroin by Yee at Yee's house on the morning of June 4. The absence of a part of the ounce, and the division of the heroin into several containers after being brought to Yee's house in one container, substantiate the further portion of Wong Sun's confession that he and Toy had gone to Yee's house again on the night of June 3, smoked heroin, and taken one "paper" for their later use. In addition, there was corroboration of parts of the confession in Agent Nickoloff's testimony that Toy had admitted to him on June 4 that he had been at Yee's house the night before, as well as in the separate testimony of Yee showing that he knew Wong Sun.
C. Toy's confession, unlike that of Wong Sun, shows an effort on his part to withhold some of the facts. Like the accused in Opper v. United States, supra, 348 U.S. 84, he obviously sought to admit only what he thought could be proved against him by other ​evidence. But what Toy stated in his confession was sufficiently corroborated to warrant consideration of his statement. When he confessed to delivery of heroin at Yee's house, he was not spinning a fantasy—the 27 grams of heroin at Yee's house on the morning of June 4 corroborated this admission. Additionally, Toy admitted a series of visits to Yee's house. This was corroborated in Toy's very detailed familiarity with the house, as disclosed in the testimony of Agent Nickoloff. The statement in Toy's confession specifically placing him at Yee's house on the night of June 3 was further substantiated in Agent Nickoloff's testimony that Toy admitted to him on June 4 that he had been at Yee's house the night before. There were also other elements of corroboration.
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