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UNITED STATES v. HO YEE BON

June 27, 1974

UNITED STATES of America
v.
HO YEE BON, Defendant


Cooper, District Judge.


The opinion of the court was delivered by: COOPER

COOPER, District Judge.

Defendant Ho Yee Bon was indicted on October 9, 1973 on one count of unlawful possession of opium in violation of 21 U.S.C. ยง 844. Pursuant to Fed.R.Crim.P. 41 he moved for an order (1) suppressing the opium on the ground that it was illegally seized, and (2) suppressing certain statements made by him on the ground that he was never advised of his constitutional rights and never knowingly waived them. Defendant's motion to suppress physical evidence was denied in our memorandum opinion of January 8, 1974. On that same date, we ordered an evidentiary hearing on the second motion to resolve certain factual issues relating thereto. On January 14, 1974 defendant moved that we reconsider our memorandum decision of January 8, and extend the scope of the evidentiary hearing to consider the issue of the physical evidence as well. On January 15 and 16 and February 26, 1974, a full evidentiary hearing was conducted into both the seizure of the physical evidence as well as the making of the oral statements. For the reasons set forth below we (1) affirm our decision of January 8, 1974, denying defendant's motion to suppress the tangible evidence, and (2) deny defendant's motion to suppress his oral statements on the grounds that he was given his Miranda1 rights at the time of his arrest and that he knowingly and intelligently waived them at that time.

 I. MOTION TO SUPPRESS PHYSICAL EVIDENCE

 Defendant was arrested in Pennsylvania Station, New York City on July 31, 1973 by agents of the Drug Enforcement Administration (hereinafter DEA). The arrest was prompted by an anonymous telephone call received the previous day at about 1:00 or 1:30 p.m. by Agent Murphy of the DEA. The caller told Murphy that (1) on the following day (July 31, 1973) (2) a Chinese male by the name of Ho Yee Bon, (3) would be leaving from Pennsylvania Station, (4) at approximately nine o'clock in the morning, (5) bound for Chester, Pennsylvania; that (6) defendant worked at the China Garden Restaurant on West 3d Street in Chester. He described Ho Yee Bon as (7) having a GI haircut and wearing (8) a brown suit with (9) a white shirt. Murphy was told that defendant (10) had been arrested previously on drug charges and had spent or been sentenced to five years in jail. The caller said that Ho Yee Bon was (11) an illegal alien, but that (12) he had a "green card." *fn2" Finally, the caller said that (13) Ho Yee Bon would be carrying "dope." (Tr. 171-72) *fn3"

 DEA agents then secured a photograph of Ho Yee Bon from their files, and Agent Murphy verified that there was a restaurant, the China Garden Restaurant, on West 3d Street in Chester, Pennsylvania, and that Ho Yee Bon had been arrested previously on a narcotics charge and had been sentenced to five years. (Tr. 173-74) The Immigration and Naturalization Service (INS) was contacted that night and at about 7:00 a.m. on July 31, agents from INS and DEA met in Pennsylvania Station and set up surveillance points. (Tr. 20)

 INS agents first saw defendant as he was descending an escalator near the Amtrak ticket sales windows. They followed him onto the train platform and identified themselves. Defendant, who was carrying a shopping bag, was asked if he had a "green card" and he produced an order of supervision. *fn4" The agents asked Ho Yee Bon to accompany them to a telephone booth in the waiting room, where one of the agents called his office to check on defendant's immigration status and learned that a warrant of deportation had been issued in 1965 but that it could not be executed because travel documents were not obtainable. It was for this reason defendant was under an order of supervision. The INS agents then told the DEA agents that they were satisfied as to defendant's status and were not going to detain him further. (Tr. 20-44) At this point the DEA agents approached defendant and Agent Moriarty, having identified himself, read to defendant his constitutional rights. (Tr. 49-51) Although Ho Yee Bon was not formally told that he was under arrest until sometime later, Moriarty admitted that defendant was under arrest from this point on. (Tr. 82)

 Moriarty patted defendant down and examined the contents of the shopping bag but found no contraband. He then took defendant into the Pennsylvania Railroad Police office and searched more thoroughly. The shopping bag contained a plastic bag of lichee nuts in the center of which he found a small package containing a substance later determined to be approximately 7.69 grams of opium. (Tr. 53-55, 79-82)

 Defendant vigorously attacks the legality of his arrest and contends that the agents lacked probable cause to proceed as they did. His argument is essentially as follows: (1) the informant's tip was proven false or mistaken in two material respects when the INS agents determined that defendant was lawfully in this country and not an "illegal alien" and that the defendant had an order of supervision and not a "green card;" (2) the informant was totally anonymous to Agent Murphy and had no record of proven reliability; (3) the informant did not state the basis for his information; (4) at no time was defendant's conduct in any way suggestive of criminal activity. For these reasons defendant argues that the tip was too weak to support a finding of probable cause; that his arrest, and the search incident thereto, must therefore be declared illegal.

 We disagree. First, defendant is mistaken in his claim that the tip was proven false or mistaken in any material respect; in fact, these elements were fully corroborated prior to the arrest. Secondly, although the other characterizations of the tip are accurate, as conceded by the Government, nevertheless, the extraordinary detail of the tip and the fact that it was fully corroborated in each and every respect compel the conclusion that the agents had probable cause to make the arrest.

 The dispute over whether the informant was right or wrong concerning defendant's immigration status arises from a likely confusion over the meaning of the terms "illegal alien" and "green card." A warrant of deportation is the result of a finding by an INS judge that an alien has been found deportable and has been ordered deported from the United States. (Tr. 28) Such a warrant had been issued against defendant in 1965 following his narcotics conviction. (Tr. 22-24, 28-29) Subsequent to an order of deportation, however, travel documents must be obtained for the removal of an alien from the United States. In the case of defendant, no such travel documents were obtainable because he was considered a refugee directly from Mainland China. Under these circumstances, INS issued its order of supervision. This is a temporary and revocable document permitting an alien to remain at large subject to certain conditions, among them, that he produce himself for deportation at the time and place designated, that he not travel outside the New York district for more than 48 hours without first notifying his deportation officer, and that he report in person to his deportation officer every January. (Tr. 28-29, 32-36)

 Technically, a "green card" is a wallet-size green card issued to an alien by INS signifying that the holder is a lawful, permanent resident of the United States. (Tr. 43) The term has a broader meaning, however; it has become the universal expression among aliens for that document -- regardless of technical name or color -- which signifies that the bearer is lawfully present in the United States, either permanently or temporarily. (Tr. 37, 42) This explains why defendant, when asked for his "green card," immediately produced the order of supervision.

 Defendant contends that the tip was wrong in that he was not an "illegal alien" because he is lawfully in this country, and that he did not possess a "green card," but rather an order of supervision. This requires, however, an unrealistically precise interpretation of defendant's immigration status. Defendant was an "illegal alien" because a warrant of deportation had been issued against him in 1965 ordering him deported from the United States. This warrant is still outstanding and fully valid; it was, in effect, stayed by the subsequent issuance of the order of supervision. (Tr. 22-24, 28-29) The term "illegal alien" is a common, succinct expression for an alien against whom a warrant of deportation has been issued; it is used not only by laymen, such as the informant, but by professionals as well. (Tr. 105) Similarly, an order of supervision is not a "green card" in the technical sense of the word; nevertheless, in the broader sense, it was defendant's equivalent to a "green card" in that it was evidence of his lawful presence in this country. (Tr. 37, 42) For these reasons defendant errs when he asserts that the tip was proven materially false; in fact, just the opposite is true. The informant was quite correct in his seemingly contradictory statements that defendant was both an "illegal alien" and the holder of a "green card."

 Defendant argues further that the informant's tip, even if entirely true, is so inherently weak that the arresting officers lacked probable cause. He points out that no case cited by the Government contains all three of the deficiencies inherent in the instant tip: an informant of unproven reliability, no basis alleged for the information, and no evidence of guilt by suspicious behavior. In particular, he argues that United States v. Manning, 448 F.2d 992 (2d Cir.) (en banc), cert. denied, 404 U.S. 995, 92 S. Ct. 541, 30 L. Ed. 2d 548 (1971), upon which we relied in our memorandum opinion of January 8, 1974, is distinguishable from the present case because there the informant had seen the narcotics himself, and because, when the federal agents identified themselves at the door, they heard running and scuffling within the apartment characteristic of efforts to dispose of narcotics and escape. It is true that no case cited by either the Government or the defendant is the precise factual analogue of this case. Nevertheless, we are persuaded that the case law, including Manning, supports our finding of probable cause.

 To support a search and seizure as properly incident to a warrantless arrest, the arrest itself must be shown to have been lawful. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). DEA agents have been given statutory authority to "make arrests without warrant . . . (B) for any felony, cognizable under the laws of the United States, if (they have) probable cause to believe that the person to be arrested has committed or is committing ...


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