# Wong Sun v. United States/Dissent Clark

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United States Supreme Court
371 U.S. 471
Wong Sun v. United States
Argued: Oct. 8 and 9, 1962. --- Decided: Jan 14, 1963
Mr. Justice CLARK, with whom Mr. Justice HARLAN, Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.
The Court has made a Chinese puzzle out of this simple case involving four participants: Hom Way, Blackie Toy, Johnny Yee and 'Sea Dog' Sun. In setting aside the convictions of Toy and Sun it has dashed to pieces the heretofore recognized standards of probable cause necessary to secure an arrest warrant or to make an arrest without one. Instead of dealing with probable cause as involving 'probabilities,' 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act,' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), the Court sets up rigid, mechanical standards, applying the 20-20 vision of hind-sight in an area where the ambiguity and immediacy inherent in unexpected arrest are present. While probable cause must be based on more than mere suspicion, Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 172, 4 L.Ed.2d 134 (1959), it does not require proof sufficient to establish guilt. Draper v. United States, 358 U.S. 307, 312, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (1959). The sole requirement heretofore has been that the knowledge in the hands of the officers at the time of arrest must support a 'man of reasonable caution in the belief' that the subject had committed narcotic offenses. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). That decision is faced initially not in the courtroom but at the scene of arrest where the totality of the circumstances facing the officer is weighed against his split-second decision to make the arrest. This is an everyday occurrence facing law enforcement officers, and the unrealistic, enlarged standards announced here place an unnecessarily heavy hand upon them. I therefore dissent.
The first character in this affair is Hom Way, who was arrested in possession of narcotics and told the officers early that morning that he had purchased an ounce of heroin on the previous night from Blackie Toy, who operated a laundry on Leavenworth Street. Narcotics agents, armed with this information from a person they had known for six weeks and who was under arrest for possession of narcotics, immediately sought out Blackie Toy, the second character. The laundry was located without difficulty (as far as the record shows) from the information furnished by Hom Way. The Court gratuitously reads into the record its supposition that Hom Way 'merely invited the officers to roam the length of Leavenworth Street (some 30 blocks) in search of one 'Blackie Toy's' laundry * * *.' On the contrary, the identification of 'Blackie' and the directions to his laundry were sufficiently accurate for the officers-two of whom were of Chinese ancestry-to find Blackie at his laundry within an hour. I cannot say in the face of this record that this was a 'roaming' performance up and down Leavenworth Street. To me it was efficient police work by officers familiar with San Francisco and the habits and practices of its Chinese-American inhabitants. Indeed, the information was much more explicit than that approved by this Court in Draper v. United States, supra.
There are other indicia of reliability, however. Here the informer, believed by the officers to be reliable, was under arrest when he implicated himself in the purchase of an ounce of heroin the previous night. Since he was in possession of narcotics and his information related to a narcotics sale in which he was the buyer, the officers had good reason to rely on Hom Way's knowledge. See Rodgers v. United States, 267 F.2d 79 (C.A.9th Cir., 1959), and Thomas v. United States, 281 F.2d 132 (C.A.8th Cir.), cert. denied, 364 U.S. 904, 81 S.Ct. 239, 5 L.Ed.2d 196 (1960). As to his credibility, he was confronted with prosecution for possession of narcotics and well knew that any discrepancies in his story might go hard with him. Furthermore, the statement was a declaration against interest which stripped Hom Way of any explanation for his possession of narcotics and made certain the presumption of 21 U.S.C. § 174, 21 U.S.C.A. § 174. I do not see what stronger and more reliable information one could have to establish probable cause for the arrest without warrant of Blackie Toy.
But even assuming there was no probable cause at this point, the Government produced additional evidence to support the lawfulness of Backie's arrest. In broad daylight, about 6:30 on the same morning that Hom Way was arrested, one of the officers of Chinese ancestry, Agent Alton Wong, knocked on Blackie Toy's laundry door. When Wong told him that he wanted laundry, Blackie opened the door and advised him to return at 8 a.m. Wong testified that he then 'pulled out (his) badge' and announced that he was a narcotics agent. Blackie slammed the door in Wong's face and ran down the hall of the laundry. Wong broke through the door after him-calling again that he was 'a narcotics Treasury agent.' Only when Blackie reached the family bedroom was Wong able to arrest him, as he reached into a nightstand drawer, apparently looking for narcotics. Agent Wong immediately confronted him with Hom Way's accusation that Blackie Toy had sold him narcotics. Blackie denied selling narcotics, but he did not deny knowing Hom Way and later admitted knowing him. There is no basis in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), for the Court's conclusion that Blackie's flight 'signified * * * a natural desire (by Toy) to repel an apparently unauthorized intrusion. * * *' As I see it this is incredible in the light of the record. Nor is there any support in the record that 'before Toy fled, the officer never adequately dispelled the misimpression engendered by his own ruse.' On the contrary the officer's showing of his badge and announcement that he was a narcotics agent immediately put Blackie in flight behind the slamming door. To conclude otherwise takes all prizes as a non sequitur. As he pursued, Wong continued to identify himself as a narcotics agent. I ask, how could he more clearly announce himself and his purpose?
This Court has often held unexplained flight-as here-from an officer to be strong evidence of guilt. E.g., Husty v. United States, 282 U.S. 694, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Brinegar v. United States, supra, 338 U.S. at p. 166, n. 7, 69 S.Ct. 1306; see Henry v. United States, supra, where the Court was careful to distinguish its facts from those of 'fleeing men or men acting furtively.' 361 U.S. at 103, 80 S.Ct. at 172. Moreover, as the Government has always emphasized, this is particularly true in narcotics cases where delay may have serious consequences, i.e., the hiding or destruction of the drugs. This Court noted without disapproval in Miller v. United States, supra, the state decisions holding that 'justification for noncompliance (with the rule) 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.' 357 U.S. at 309, 78 S.Ct. at 1196. And the Court continued, 'It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal.2d 755, 290 P.2d 855; Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 541, 798, 802 (1924).' Id. at 310, 78 S.Ct. at 1196.
The Court places entire reliance on the decision in Miller. I submit that it is inapposite. That case involved interpretation of the law of the District of Columbia. Id. at 306, 78 S.Ct. 1194. The arrest was at night, and the door was broken in just as the defendant began to close it. Thus there was no flight but only what the officers believed to be an attempt to bar their entrance. The only identification given by the officers occurred before the defendant opened the door, when 'in a low voice' through the closed door they answered the defendant's query as to who was there by saying, 'Police.' Id. at 303, 78 S.Ct. 1192. The facts in Miller differ significantly from this case both in the clarity of identification by the officers and in the character and extent of the defendant's conduct. For that reason, the conclusions that Blackie's flight is evidence to support probable cause and that the officers gave sufficient notice to permit lawful entry are supported rather than weakened by the Court's decision in Miller.
The information from Hom Way and Blackie Toy's unexplained flight cannot be viewed 'in two separate, logic-tight compartments. * * * (T)ogether they composed a picture meaningful to a trained, experienced observer.' Christensen v. United States, 104 U.S.App.D.C. 35, 36, 259 F.2d 192, 193 (1958). I submit that the officers as reasonable men properly concluded that the petitioner was the 'Blackie Toy' who Hom Way informed them had committed a felony and that his immediate arrest-as he ran through his hall-was lawful and was imperative in order to prevent his escape. In view of this there is no 'poisonous tree' whose fruits we must evaluate, and Blackie's declaration at the time of the arrest and the narcotics found in Yee's possession are admissible in evidence. The trial court found that evidence sufficiently corroborative of Toy's confession, and the Court of Appeals affirmed. For the same reasons discussed, infra, as to Wong Sun, I see no occasion to overturn these consistent findings of two courts.
As to 'Sea Dog,' Wong Sun, there is no disagreement that his confession and the narcotics found in Yee's possession were admissible in evidence against him. The question remains as to whether there was sufficient independent evidence to corroborate the confession. Such evidence 'does not have to prove the offense beyond a reasonable doubt, or even by a preponderance * * *.' Smith v. United States, 348 U.S. 147, 156, 75 S.Ct. 194, 199, 99 L.Ed. 192 (1954). The requirement is satisfied 'if the corroboration merely fortifies the truth of the confession, without independently establishing the crime charged * * *.' Ibid; see also Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954). Wong Sun's confession stated in part that about four days before his arrest he and Toy delivered an ounce of heroin to Yee and that on the night before his arrest-the night of June 3, 1959-he and Toy smoked some heroin at Yee's house. On June 4, 1959, the officers found at Yee's residence quantities of heroin totaling 'just less than one ounce.' In light of this evidence, I am unable to say that the trial court and the Court of Appeals erred in holding that Wong Sun's confession was sufficiently corroborated.
The Court does not reach a contrary conclusion as to corroboration, but it grants Wong Sun a new trial on the ground that the trial court 'may' also 'have considered the contents of Toy's statement as a source of corroboration' of it. This point was not raised as a question here nor was it discussed in the briefs. Despite this the Court goes to some lengths to develop a chain of inferences in finding prejudicial error. This might be plausible where the case was tried to a jury, as were all the cases cited by the Court. Indeed, I find no case where such presumption of error was applied, as here, to a trial before a judge. The Court admits that the heroin found in Johnny Yee's possession might itself be sufficient corroboration, but it reverses on the excuse that the judge 'may' have considered Toy's confession as well. I see no reason for this assumption where a federal judge is the trier of the fact, and I would therefore affirm the judgment as to both petitioners.

## Notes

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