Wong Sun and James Wah Toy v. United States

(dissenting).

In my view the convictions should be set aside because as to both appellants the government developed its case on the basis of information obtained from Toy at his home immediately after enforcement officers made an illegal entry into that home. The fact that the informa•tion was derived from voluntary statements made by Toy at that time and place, rather than as a result of the 'seizure Of physical objects (Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 ) or observations made by law enforcement officers while illegally on the premises (McGinnis v. United States, 1 Cir., 227 F.2d 598 ), seems to me immaterial.

As I understand it, the test of the “fruit of the poisonous tree” doctrine (Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266, 268 , 84 L.Ed. 307 ) is whether the government seeks to avail itself of knowledge which it would not have had but for the lawless conduct of enforcement officers. For all that is shown in this record, the government would not have known of Johnnie Yee and so built its case had not an illegal entry of Toy’s home been effected.

The guarantees of the Fourth Amendment are too fundamental to…

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 conceal, 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 Horn 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…

288 F.2d 366 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. 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. 1 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 conceal, 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…