# Brief for the United States, Wong Sun v. United States/Argument/Assuming that the arrests were illegal

II
Assuming That The Arrests were Illegal, The Evidence Upon Which Petitioners were Found Guilty was Admissible Because It Was The Product of Intervening Voluntary Acts on The Part of Petitioners and A Third Party
On the assumption that the arrests were illegal, petitioners contend that all the evidence obtained after those arrests must be deemed the "fruit of the poisonous tree" and therefore inadmissible. The court below rejected this contention, holding that the voluntary statements by petitioners—by Toy at the time of his arrest and by both, later, after arraignment—were sufficiently independent so that they could not be said to be the product of the arrests. If this question need be reached, we submit that the decision of the court of appeals is correct.
There can be no doubt that if evidence sought to be introduced is the true product of illegal government action it is not admissible in a federal prosecution. The Court, however, has never held nor said that any evidence which would not have been obtained but for the illegal conduct is automatically inadmissible. Rather, the test has been the proximity of the connection between the improper official activity and the particular evidence proffered by the government. Where the bond is direct and unbroken the rule of exclusion applies, but where the connection is attenuated or the nexus is cut by sufficient intervening conduct the evidence is acceptable. In our view, a voluntary decision by defendants (or third parties) ​freely to give information to arresting officers, when in truth it is freely given, breaks the link; the resulting evidence is not then attributable to, or the product of, the illegal arrests. Such freely-given declarations are the product of a human being's voluntary choice to speak rather than to remain silent when he could freely decline to say anything.
1. The general rule is illustrated by Silverthorne v. United States, 251 U.S. 385, which laid down the "poisonous tree" doctrine. There, the government seized evidence, made photostats, and studied the documents. After the documents had been ordered returned as illegally seized, the government attempted by subpoena to have the evidence produced for use at a trial. In reversing a conviction for contempt for failure to honor the subpoena, this Court pointed out that knowledge of the existence and contents of the documents was the direct result of the government's wrongful action and held that the government could not thus profit from its own wrong. Suppression of evidence would have little meaning, the Court said, if such a direct product of illegal action could be introduced in evidence. Similarly, where officers, as the result of an illegal entry, observe incriminating facts, testimony as to their observations is the direct product of the illegal entry and is excludable. E.g., McGinnis v. United States, 227 F. 2d 598 (C.A. 1) (cited by petitioners). There is obviously a direct connection between the illegal entry and the officers' observations.
​This Court also applied the "poisonous tree" doctrine in Nardone v. United States, 308 U.S. 338, holding that evidence would be inadmissible, not only if obtained directly from illegal wire-tapping, but also if obtained from leads or clues stemming from the wire-tapping. The Court indicated, however, that the connection between the illegal official conduct and the evidence must be direct and adequate. The opinion carefully pointed out, with respect to the relationship between the officers' misconduct and the government's proof (308 U.S. at 341):
As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. * * *
2. On the other hand, the Court has recognized that, even though illegal action by government officers has in some degree contributed to the obtaining of evidence ultimately used, nevertheless, if that evidence represents primarily an act of human free will, the evidence is admissible. In United States v. Bayer, 331 U.S. 532, 540–541, the Court held admissible a confession voluntarily given, without regard to ​whether a confession six months earlier had been lawfully or unlawfully obtained. The Court said:
Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed. The Silverthorne and Nardone cases, relied on by the Court of Appeals, did not deal with confessions but with evidence of a quite different category and do not control this question. * * *
We believe that it is the concept of an intervening independent act of a free will—the defendant, as a human being, can choose to speak or to remain silent—which furnishes the rationale for the rule (which pertains generally in state and federal courts) that a statement or confession voluntarily made during detention, without compulsion and without undue delay in arraignment, is not rendered inadmissible by the illegality of the original arrest. Smith v. United States, 254 F. 2d 751, 758–759 (C.A. D.C.), certiorari denied, 357 U.S. 937; United States v. Walker, 197 F. 2d 287, 289–290 (C.A. 2), certiorari denied, 344 U.S. 877; Gibson v. United States, 149 F. ​2d 381, 384 (C.A. D.C.) , certiorari denied sub nom. O'Kelley v. United States, 326 U.S. 724.
3. Where, at the time and place of an illegal arrest or an illegal search, a defendant makes statements which are themselves evidence or which lead to other evidence, the situation lies between those we have just discussed. On the one side, the illegal official action is still occurring and its effects may, to a greater or less degree, still be operative. On the other, the statements, if not coerced, do represent an independent intervening act of free will on the part of the defendant. As Judge (later Chief Justice) Vinson said in Nueslein v. District of Columbia, 115 F. 2d 690, 692 (C.A. D.C.), there "exists the heaviest cross-fire between the legal significance of voluntary declarations, and a completely unlawful entry into a home." It is not always easy to decide whether the statements are truly the product of the illegal government action or result from an intervening independent act of volition. But it seems clear to us that there should be no general rule barring all statements or admissions made in connection with or after an illegal arrest. For instance, if an individual arrested without probable cause while walking on a busy street blurts out at once in remorse—before the officer says anything more than "I arrest you"—that he is guilty of stealing certain goods and will make restitution, it would seem unwise to bar that ​volunteered confession or the evidence of larceny obtained as a result of the confession. Human beings do normally have power to control their own speech, and, when they do choose to speak, their words, if voluntary, cannot be simply equated, without more, to intangible objects observed or discovered in the course of an illegal arrest or search.
To us, what the existing decisions show is that the question whether a statement made at the time of an illegal entry or illegal arrest should or should not 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 production or discovery of the evidence. The leading case holding that voluntary admissions at the time of an invalid search are admissible is Quan v. State, 185 Miss. 513. ​Yet, under other circumstances, where a confession that there was whiskey in a suitcase came as the result of an officer's illegally taking the suitcase from a moving train, the Mississippi court held that the Quan rule did not apply and that the admission should not have been allowed in evidence. In the latter case the illegal seizure left the defendant no choice to give or withhold the information; the officer had already seized it. Harris v. State, 209 Miss. 183. The California courts, since adopting the rule of exclusion, have held inadmissible admissions made under the actual compulsion. of an illegal search or arrest. People v. Dixon, 46 Cal. 2d 456 (1956); People v. Macias, 180 Cal. App. 2d 193 (1960). Yet California has held that this rule does not apply to an attempt at bribery made when a person was illegally arrested. People v. Guillory, 178 Cal. App. 2d 854. Thus, even California, which has applied stringent rules in this field, does not hold inadmissible any statement by the defendant which would not have been made but for the unlawful arrest; where the statement is the deliberate and voluntary act of the defendant, California has permitted it to be used.
4. Where a defendant makes statements directly related to things unlawfully seized, the unlawful seizure may well be considered the primary force behind ​the statement—nothing else appearing. As the Ninth Circuit phrased it in Takahashi v. United States, 143 F. 2d 118, 122, "all declarations and statements under the compulsion of the things so seized, are affected by the vice of primary illegality." Cf. however, Quan v. State, discussed supra; Rohlfing v. State, 230 Ind. 236. The situation is quite different where as here (in the case of petitioners) nothing is found and the defendant thus has nothing to explain away.
The decision in Nueslein v. District of Columbia, 115 F. 2d 690 (C.A.D.C.), held that, even though nothing was found after an illegal entry, statements made during the illegal entry were the result of an illegality and therefore inadmissible. Officers, investigating a misdemeanor (an accident in which a taxicab 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. In holding excludable the admission by the defendant that he was driving the taxicab at the time of the accident, the court of appeals, noting that only a misdemeanor was involved, stressed the desirability of vindicating the right to privacy of a home and ruled that the effective way of protecting that right was "to dissolve the evidence that the officers obtained after entering and remaining illegally in the defendant's home." 115 F. 2d at p. 695. This decision goes far in connecting the admissions with the illegality since the illegal entry in no sense compelled the owner to talk. Even so, that decision does not go as ​far as would be necessary in this case to hold inadmissible and unusable the statement made by petitioner Toy. 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; they were also made while the man appeared to be intoxicated, not in full possession of his faculties. Here, petitioner Toy, although knowing that the officers had found no narcotics in his house or on his person, deliberately sent them to Johnny Yee in order to divert suspicion from himself. Toy saw an opportunity to sidetrack the officers, and consciously chose to do so.
For this reason, we think the statements in this case are a significant step removed from the Nueslein case and that that step is sufficient for the ruling here to fall on the side of admissibility. The motivating force behind Toy's statement that he knew Yee had narcotics was Toy's own voluntary act of deciding to give that information. Nothing in the entry by officers, nothing the officers found, would have sent them to Yee. The information communicated by the officers to Toy that Hom Way had named Toy as a source of narcotics in no way stemmed from the illegal entry. And it was Hom Way's information which caused Toy to send the officers to Yee. It later turned out that Toy's scheme to divert the agents failed, but at the time he evidently hoped to clear himself. This led to his voluntarily choosing to speak—and his words became the trail to new evidence. In short, petitioner Toy would now ​have the courts bar evidence that he himself deliberately uncovered.
The present situation is much closer to the bribery case which was before the California court in People v. Guillory, 178 Cal. App. 2d 854, supra, than it is to Nueslein. There, the defendant claimed that the offer of the bribe would not have been made except for the illegal arrest. The court noted that nothing in the arrest compelled the bribe and held that the illegal entry and arrest had nothing to do with the bribery "except as they furnished the setting for it." So here, the illegal entry may have furnished the setting for informing Toy of Hom Way's accusation, but the entry did not cause Toy to send the officers to Yee.
The factual pattern here is also analogous to that before the Second Circuit on the issue of consent in Burgos v. United States, 269 F. 2d 763, 766 (C.A. 2), certiorari denied, 362 U.S. 942. In Burgos, after a defendant had been arrested for illegal entry into the country as an alien, he was asked about narcotics and handed over a small glassine envelope saying that it was for his own use. Subsequently a search disclosed a large quantity of narcotics. Despite the fact that, as petitioner argues, the courts have generally, particularly in recent years, tended to find that consent to a search at the time of arrest is not voluntary, the district court and the court of appeals found that Burgos had voluntarily turned over the glassine envelope. The court of appeals pointed out that he was ​trying to use the glassine envelope as a cover-up, and that, instead of characterizing his behavior as an admission, it was far more plausible to interpret it as an attempt to ingratiate so as to convince the agents that he was only a "small time user" and might well be released in exchange for a bribe. So here, petitioner Toy tried to divert the agents by sending them to Yee. The propelling force behind the discovery of the narcotics at Yee's house was Toy's own act in sending the agents to Yee. Since it was Toy's deliberate and voluntary act which caused the officers to go to see Yee, the evidence recovered from Yee should be deemed to be Toy's independent responsibility, not the product of illegal government action in entering Toy's house.
5. Petitioners seek to invalidate not only Toy's statement at the laundry, but Yee's voluntary delivery of the narcotics and his unanticipated and independent statement in which he implicated Toy as well as Wong Sun, and even the later, disconnected, full confessions of Toy and Wong Sun, made after an interval of 5 days (after arraignment).
As pointed out supra (pp. 36-37), nothing with respect to Yee's surrender of the narcotics or accusation of Wong Sun and Toy involved any unlawful conduct of the officers. No search was made, and Yee's designation of Wong Sun and Toy as the persons who brought the narcotics to Yee's house was voluntarily made at a later time. He did not make this accusation on the spur of the moment when he delivered the narcotics to the officers at his house, but subsequently at the office of the Bureau of Narcotics, ​when there had been an interval of time in which to consider whether to disclose his suppliers—an interval of time in which to make an independent voluntary determination as to cooperation or non-cooperation with the officers.
As for the full confessions of the petitioners, which were wholly voluntary and made after arraignment, they were clearly admissible under the well settled rule, noted supra (pp. 41–43), that a later voluntary confession is admissible even if the arrest was illegal.
* ↑ An example of attenuation, even without an intervening act of free will on the part of the defendant, is furnished by Goldman v. United States, 316 U.S. 129, 134–135, where an earlier trespass in an office to install a listening device resulted in failure of the device. The Court rejected the contention that a later installation, involving no trespass, was tainted by the earlier conduct, even though it was contended that the trespass, and what was learned thereby, was of assistance in placing the second installation. The Court relied upon the findings that the trespass did not aid "materially" in the use of the second device.
* ↑ The state, as well as the federal, cases are collected in Kamisar, Illegal Searches or Seizures and Contemporaneous Incriminating Statements: A Dialogue on a Neglected Area of Criminal Procedure, University of Illinois Law Forum (1961) 78, 81, fn. 16.
* ↑ For a list of cases, see Nueslein v. District of Columbia, 115 F. 690, 691–692 (fns. 2 and 3). Other cases are noted in Kamisar, op. cit. supra, at page 83, fn. 22.
* ↑ The court, after pointing out that an illegal search resulted in barring from evidence all knowledge acquired by officers through their senses during the course of the search, any statements heard when the speakers were unaware of the presence of the officers, and any statements made under circumstances rendering them involuntary, went on to say (185 Miss. at p. 520): But there there is no such an essential connection between an illegal search—wherein the illegality consists solely in the want of a valid search warrant—and statements freely and voluntarily made to the officers during the course of that search as to bar such free and voluntary statements. Even though a search is being made, and although it be illegal because of the invalidity of the search warrant, the party whose premises are being searched may remain wholly silent, if he chose so to do. And, on the other hand, any responsible and competent person is at liberty to speak as against himself or against his own interests at any time or place or under any and all circumstances, so long as he freely and voluntarily does so.
* ↑ See United States v. Arrington, 215 F. 2d 630 (C.A. 7); Catalanotte v. United States, 208 F. 2d 264 (C.A. 6); Judd v. United States, 190 F. 2d 649, 651 (C.A.D.C.).
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