Interim Decision #2272

Interim Decision #2272

MATTER Or YA.0

In Deportation Proceedings

A-15774083

Decided by Board March 19, 1974

(1) Under the alien registration provisions of the Immigration and Nationality

Act and applicable regulations, an alien crewman is under a duty to exhibit

his crewman's landing permit upon request to do so by a Service officer,

without necessity of a Miranda—type warning, even after the alien has been

temporarily detained by the officer for interrogation in accordance with the

provisions of section 287(aX1) of the Act, since the alien registration provisions

are essentially non-criminal and regulatory.

(2) Respondent was placed under forcible restraint by a Service officer for a brief

period (between 5 and 10 minutes) for future interrogation; thereafter he was

accompanied by a Service officer to his living quarters where, upon request,

and while under no physical restraint, he voluntarily handed over to the

service officer his crewman's landing permit (Form I-95A). Held: The temporary forcible detention of respondent for future questioning was not a "fullblown" arrest without warrant pursuant to section 287(aX2) of the Act and did

not continue throughout the period when respondent was in his own living

quarters and was questioned by the Service officer. Hence, since respondent's

crewman's landing permit was not obtained in a custodial setting and a

Miranda—type warning was not required, it is admissible in evidence.

CHARGE:

Order: Act of 1952—Section 241(a)(2) [8 U.S.C. 1251(02)1—Nonimmigrantremained longer crewman.

ON BEHALF OF RESPONDENT:

Jules E. Coven, Esquire

1 East 42nd Street

New York, New York

ON BEHALF OF SERVICE:

Thomas W. Winnerman

Trial Attorney

R. A. Vielhaber

Appellate Trial Attorney

This is an appeal by the Immigration and Naturalization Service from a decision of an immigration judge which ordered the

termination of deportation proceedings against a person named

Yau Cheung Cheong in the Order to Show Cause in which he had

been charged with having illegally remained in the United States

beyond the period of his temporary admission as an alien crew620

Interim Decision #2272

man. Additionally, the immigration judge certified the matter to

us for final decision.

The appeal will be sustained. We find that the hearing before

the immigration judge was fair, and that the deportability of Yau

Cheung Cheong, to whom we shall hereafter refer as the respondent, has been established by clear, convincing, and unequivocal

evidence.

On June 5, 1969, the Service gained information as to the

respondent's name, other personal data, and the date and manner

of his arrival in the United States, as a crewman, when the

respondent, pursuant to a request made by a Service investigator,

handed to him a crewman's landing permit, Form I-95A. On the

basis of that information the District Director at Newark, New

Jersey, obtained from the Houston, Texas, office of the Service

further information concerning the respondent, including a report

of his desertion from the ship on which he had arrived in this

country, and his Hong Kong Seaman's Identity Book. All the

documents in the file pertainng to the respondent at the Houston

office had been maintained there long before June 5, 1969.

During the hearing held before the immigration judge the

respondent stood mute, on advice of counsel, and invoked the

privilege against self-incrimination under the Fifth Amendment of

the United States Constitution.

All the pertinent facts were set forth by the immigration judge

in his decision of April 5, 1971. We quote from it the following two

paragraphs:

"Factually, I am advised through the testimony of the investigators of the

Immigration and Naturalization Service who appeared before me that the

male person whom they identified as the respondent appearing in this cause

was seen by one officer running out of the rear door of a restaurant in

Verona. New Jersey, clad at that time in a white uniform, the usual attire for

restaurant kitchen employees. It was the investigator's opinion that the man

was attempting to flee from other officers of the Immigration and Naturalization Service who were in the restaurant allegedly interviewing and investigating the personnel there in an effort to ascertain whether there were any

illegal aliens employed in the restaurant. The investigator who saw the male

person fleeing gave chase, ultimately caught him, physically restained him,

placed handcuffs upon him, and brought him to a Service owned vehicle,

which was parked near the restaurant, where this officer turned the male

person over to another officer. The male person was then placed in the rear of

the car and detained there for some fifteen or twenty minutes before he and

other persons found at the restaurant were taken to the living quarters for

employees provided by the restaurant some few hundred yards to the rear of

the restaurant. At this place, through an interpreter, an Immigration Service

Investigator requested from the male person his 'papers' and obtained the

Form I-95A which has been marked Exhibit 2 for Identification.

The apprehending Immigration officer reported the information contained

upon this Form I-95A to his supervisor at the offices of the Immigration and

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Naturalization Service in Newark, and this officer, in turn, then requested

and obtained, based upon this information, an Immigration file which purportedly related to the person to whom the Form I-95A had been issued. The

other documents offered in evidence and marked solely for Identification

came from this Immigration file."

In his decision, the immigration judge further stated that the

respondent was placed under arrest when handcuffs were put

upon him, that, thereafter, it became incumbent upon the arresting officer to give a Miranda type warning to the respondent, as

required under Miranda v. Arizona, 384 U.S. 426 (1966), before the

officer could request or obtain from respondent any evidence

which could be used against him in a subsequent proceeding, and

that the failure to give such a warning rendered evidence obtained

thereafter inadmissible. He stressed the fact that, under Service

instructions, Service investigators were required to give Miranda—type warnings, and that noncompliance with such instructions was an additional reason for considering evidence obtained

in violation of those instructions to be inadmissible. He cited the

case of Bridges v. Wixon, 326 U.S. 135, 153 (1945). He failed to

mention the significant facts that the respondent was under no

physical restraint at the time when he handed his crewman's

landing permit (Form I-95A) to a Service officer (Tr., p. 19), that

he did so voluntarily, and that no search was made.

In view of counsel's contention that the respondent was subjected to an illegal arrest, we have examined the record for any

violation of the provisions of the Fourth Amendment to the

constitution of the United States which might possibly preclude

the admission in evidence of respondent's crewman's landing

permit and of documents in the possession of the service which

pertain to the respondent. We have found no such violation.

The Fourth Amendment affords protection against unreasonable searches and seizures. Here there was no search; but there

was a "seizure" of the person of the respondent when he was

placed in the Service -owned vehicle, and was handcuffed. We find

that the seizure of the respondent's person was reasonable, in

view of his unusual conduct. In making that finding we have relied

on Terry v. Ohio, 892 U.S. 1 (1968), in which the United States

Supreme Court sanctioned a person's seizure and search, by a

police officer, under not dissimiliar factual circumstances. This

respondent was held in a motor vehicle for future questioning for

between five and ten minutes (Transcript of Hearing before the

immigration judge, p. 22). Such a detention for future interrogation, if brief in duration, has been distinguished from a "full—

blown" arrest. Au Yi Lau v. INS, 445 F2d 217 (D.C. air., 1971), cert.

den. 404 U.S. 864 (1971). Under the circumstances, the respondent's

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forcible detention during a five-to-ten-minute period was a reasonable, constitutionally unassailable and under section 287(aX1) of

the Immigration and Nationality Act, authorized investigatory

stop for a reasonable period of time, and was not a "full—blown"

arrest without warrant pursuant to section 287(aX2) of the Immigration and Nationality Act.

The respondent was not questioned while he remained in the

Service vehicle. There was a language barrier. He could not speak

English well enough; and the Service officers did not speak

Chinese. Since the respondent was not questioned during his stay

in the Service vehicle, and no document was obtained from him

during that time, there would have been no occasion for giving

him a Miranda type warning; and, of course, none could have

been given in view of the lack of communication. We therefore do

not have to, and do not, decide the question whether a Miranda—

type warning would have been required if any statements had

been taken from the respondent or if any documents had been

obtained from him, at that time. We find on this record that the

restraint placed upon the respondent, as a necessary and reasonable concomitant of his detention, was temporary in nature, and did

not continue up to the time when he handed his copy of the

crewman's landing permit (Form I-95A) to the Service officer.

The record (Tr., pp. 18-20) indicates that he did so in a noncustodial setting. He had been asked, through a fellow employee,

whether he had a "ship's pass," and had indicated that he had one.

He had then led the Service officer to his room, had found the

document in question, namely his copy of the crewman's landing

permit, and, in his own living quarters, had voluntarily handed it

to the Service officer. In view of those facts, we disagree with the

immigration judge's assumption that there had been an arrest of

the respondent pursuant to section 287(a)(2) of the Immigration

and Nationality Act, rather than a temporary detention for the

purpose of interrogation under section 287(aX1), and with the

—

immigration judge's further conclusion that the restraint imposed

upon the respondent through an assumed "full—blown" arrest

under section 287(a)(2) continued throughout the period when the

respondent was in his own living quarters. We find that the

production, by the respondent, of his copy of the crewman's

landing permit did not take place in a custodial setting, and that,

under the circumstances of this case, a Miranda type warning

was not required any more than in Matter of Lane, 13 I. & N. Dec.

632, (BEA. 1970), where we said the following:

—

"Such warning is required in a custodial setting or when the person

questioned is the subject of a criminal investigation. Neither of these

situations existed here. There was merely an on-the-scene interrogation,

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Interim Decision #2272

reasonable in nature, relatively short in duration, and there was an absence

of a reasonable possibility that there would be a criminal prosecution."

Even contrary to our foregoing finding, the respondent's copy

of this crewman's landing permit had been procured by the

Service officer in a custodial setting, the Service appeal would

have to be sustained.

We are unable to concur in the immigration judge's conclusion

that the respondent's copy of the crewman's landing permit (Form

I-95A) was obtained from the respondent in violation of Service

instructions. The respondent had referred to the principle that

"one under investigation with a view to deportation is legally

entitled to insist upon the observance of rules promulgated ...

pursuant to law." U.S. ex rel. Bilokumsky v. Tod, 263 U.S. 149, 155

(1923), Bridges v. Wixon, 326 U.S. 135, 153 (1945). The following

provisions of 8 CFR 2872 were in existence at the time when the

respondent handed the Form I-95A to the Service officer:

"An alien arrested without warrant of arrest shall be advised of the reason

for his arrest and his right to be represented by counsel of his own choice, at

no expense to the Government. lie shall also be advised that any statement

he =alum may be marl against him in a subsequent proceeding and that a

decision will be made within 24 hours or less as to whether he will be

continued in custody or released on bond or recognizance."

However, like the preceding provisions of section 287.3, the quoted

portion deals exclusively with arrests without warrant, under

subsection (a)(2) of section 287 of the Immigration and Nationality

Act. It does not relate to a brief detention of a person believed to be

an alien, under subsection (aX1) of the Immigration and Nationality Act. In this case, there was only a brief detention. There was

no full-blown arrest without warrant. We therefore reject the

respondent's contention that there was a violation, by the Service,

of the provisions of 8 CFR 287.3.

In support of his view that a Miranda type warning should

have been given to the respondent, the immigration judge relied

on a statement in footnote 2 of a memorandum of the Immigration

and Naturalization Service filed in the Supreme Court of the

United States in connection with its opposition to the granting of a

petition for a writ of certiorari in the ease of An Chin Pang v_ INS,

No. 1081 Misc., October Term 1966, which was reported below at

368 F2d 637(C.A. 3, 1966), and in which certiorari was thereafter

denied, 386 U.S. 1037 (1967). There, however, the Solicitor General

referred to situations where an alien was Yormally interrogated

with respect to an entry believed to be illegal" [emphasis supplied].

There was no such formal interrogation in the matter which is

now before us.

Under section 264(e) of the Immigration and Nationality Act,

—

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"Every alien, eighteen years of age and over, shall at all times

carry with him and have in his personal possession any certificate

of alien registration or alien registration receipt card issued to him

pursuant to subsection (d)." In enacting that statute, Congress

could hardly have intended that an alien was merely required to

carry the document with him, but did not have to exhibit it to a

Service officer asking him to identify himself. Pursuant to the

authority granted to him in section 263(a) of the Immigration and

Nationality Act the Attorney General has provided for the registration of alien crewmen and for the issuance of alien crewmen

landing permits (Forms 1-95). 8 CFR 264.1(a) and (b). We hold

that, under the statute and the applicable regulations, an alien

crewman is indeed under a duty to exhibit his crewman's landing

permit when requested to do so by a Service officer, even after the

alien has been temporarily detained by the officer for interrogation in accordance with the provisions of section 287(aXl) of the

Immigration and Nationality Act. We reject the contention that,

under such circumstances, the alien may refuse to identify himself

in the prescribed way, claiming the privilege against self-incrimination, The pertinent provisions of the Fifth Amendment do not

protect the alien in such a situation; for alien registration statutes

are "essentially non-criminal and regulatory provisions." U.S. v.

Sacco, 428 F.2d 264 (C.A. 9, 1970), cert. denied 400 U.S. 903. We

specifically reject the immigration judge's attempted extension of

the principles stated in Miranda v. Arizona, 384 U.S. 436 (1966).

That case did not relate to a legitimate request for identification

which a Service officer may direct to an alien in a non-criminal

matter but dealt "with the admissibility of statements obtained

from an individual who is subjected to custodial police interrogation?'

We believe that the conclusion which we have reached is

consistent with the views which the Court of Appeals for the

Seventh Circuit expressed in its decision in United States v.

Campos-Serrano, 430 F.2d 173 (1970), a decision which was subsequently reversed, on grounds not relevant here, by the Supreme

Court in 404 U.S. 293 (1972). That was a criminal case. The

defendant, Campos Serrano, had been indicted under the provisions of 18 U.S.C. section 1546 for possession of a forged alien

registration receipt card. At the trial it was shown that, after a

completed examination of an alien registration receipt card exhibited by the defendant, immigration officers had come to the

defendant's apartment a second time, and that they had made

that second visit for the purpose of ascertaining whether the card

had been forged. While the Circuit Court thought "that the

defendant should have been given Miranda warnings before he

-

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was asked to produce his alien registration receipt card a second

time" [emphasis supplied], it determined that, "the initial inquiry

to determine whether the defendant was properly in this country

did not violate his fifth amendment privilege;" for, "Since the

purpose of these cards is noncriminal, the fifth amendment should

not prevent production in the normal immigration inquiry."

The immigration judge, who had come to the erroneous conclusion that the respodent's rights under the Fifth Amendment had

been violated, was of the opinion that the so-called "fruit of the

poisoned tree" doctrine fitted the facts of this case, and that

consequently the documents offered by the Service were not

admissible in evidence. It was his opinion that "it necessarily

follows that the Service has here failed to establish deportability

and that the proceedings should and must be terminated." We

disagree with his interpretation of that well-established doctrine.

In the case before him, and now before us, the Service obtained

from the respondent no information that was not already in its

possession. The fact that he had handed his copy of the crewman's

landing permit (Exhibit 3) to a Service officer merely made it

easier for the Service to locate the identical copy of that permit

(see Exhibit 2) which the Service had retained at the time when

the respondent had received his copy. The respondent's Hong

Kong Seaman's Identity Book No. 46161 (see Exhibit 5) had been

turned over to the Service by the Master of the "Eastern Sakura"

and had been in the Service's possession at least since June 5,

1969, (see Exhibit 8, which is a report of investigation dated June

5, 1969). So had the crew list of the "Eastern Sakura" (Exhibit 4),

and the Master's letter of May 2, 1969, in which he reported the

respondent's desertion to the Service (Exhibit 6). Inasmuch as all

the evidence on which the Service sought to rely was in its

possession long before the respondent's apprehension, the immigration judge erred in his determination that that evidence was

the "fruit" of the respondent's copy of his crewman's landing

permit.

We conclude that, even if the respondent's copy of his crewman's

landing permit had been obtained by the Service in violation of his

constitutional rights—and we hold that they were not so obtained—the other documents presented by the Service would have

remained untainted, and were admissible in evidence.

We find and determine that the documents submitted by the

Service establish clearly, convincingly, and unequivocally that the

respondent is an alien, that he is a native and national of China,

that he was admitted to the United States as a crewman, that he

deserted his ship, that he has remained in the United States

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longer than permitted, and that he is deportable as charged in the

order to show cause.

The respondent who was represented by experienced immigration counsel deliberately did not apply for a grant of the privilege

of voluntary departure. He failed to designate a country of deportation. He made no application for withholding of deportation

under section 243(h) of the Immigration and Nationality Act.

ORDER: The appeal is sustained, and the order of the immigration judge of April 5, 1971, is withdrawn.

Further order: the respondent shall be deported from the

United States to the Republic of China on Taiwan on the charge

contained in the order to show cause.

Further order: If the aforementioned country declines to accept

the respondent into its territory or fails to advise the Attorney

General within three months following original inquiry whether it

will or will not accept the respondent into its territory, the

respondent shall be deported to Hong Kong.

Maurice A. Roberts, Chairman, Concurring:

While I agree that the Service appeal must be sustained, 1

arrive at the conclusion by a somewhat different route from that

of the majority opinion. In addition, I wish to dissociate myself

from some of the precepts laid down by the majority which I

consider not only unnecessary for the conclusion reached but also

incorrect as a matter of law.

From the record before the Board, the following facts appear:

The respondent is a 28-year-old male alien, a native and citizen of

China, who was admitted to the United States at Galveston, Texas

on April 4, 1969 as a nonimmigrant crewman from the British

motor vessel "Eastern Sakura." He was granted shore leave for

the period of time the vessel was to remain in port, in no event to

exceed 29 days. As evidence of his conditional landing privilege

and alien registration, he was given a Form I--05A by the

immigrant inspector (Ex. 3). A duplicate Form I-95B was retained by the Immigration and Naturalization Service (Ex. 2). He

did not depart with the vessel when it left port on April 30, 1969

and he was reported by the master as a deserting crewman on the

vessel's outbound crew list (Ex. 4) The master turned over to the

Service the respondent's Hong Kong Seaman's Identity Book (Ex.

5), which he 'had left behind on the vessel. These documents were

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Interim Decision #2272

retained in a file relating to the respondent maintained in the

Service's office at Houston, Texas.

On June 5, 1969, four investigators from the Newark, New

Jersey office of the Immigration and Naturalization Service conducted an investigation at the Clairmont Diner in Verona, New

Jersey, to see if aliens unlawfully in the United States were

employed there. This was a periodic visit to the restaurant,

occasioned by the fact that on a number of prior visits numerous

Greek and Chinese aliens had been found working there illegally

as kitchen help. Two of the investigators remained outside while

two entered the premises. Five minutes later, the respondent was

seen running out of the restaurant's rear door, wearing the white

jacket typical of waiters, bus boys and kitchen help, which he tried

to shed as he ran. One of the investigators pursued and caught

him, placed him in handcuffs, and put him in the rear of a nearby

Service automobile. The other investigators soon returned with

other aliens found working illegally in the restaurant.

,

The investigators took the aliens, including the respondent, from

the car after about 15 minutes and went with them to a house

where the aliens all resided, about 100 yards away. There the

handcuffs were removed. One of the investigators asked the

respondent, through one of the other aliens acting as interpreter,

if he had a ship's pass. The respondent indicated that he did and

that it was upstairs in his room. The respondent led the investigator upstairs to his room, found his Form I-95A among his

possessions, and handed it to the investigator. The respondent's

identity, ascertained from his surrendered Form I-95A, was

relayed by telephone to the Service's Newark office, which then

learned by telephone from the Service's Central Office in Washington, D.C. that the Houston office had a file on the respondent as a

deserting crewman. That file was subsequently obtained. The

respondent, meanwhile, was brought to the Newark office, where

he executed a signature specimen form (Ex. 9). On the same day,

an Order to Show Cause in deportation proceedings was issued.

It is conceded that at no time was the respondent given the

warning formulated in Miranda v. Arizona, 394 U.S. 436 (1966).

At the hearing before the immigration judge, counsel for the

respondent admitted that the respondent had been served with an

order to show cause but refused to concede anything else, either

by way of his identity or the correctness of the charges. On advice

of counsel, respondent refused to answer any question or to

identify any documents_ Service investigators testified as to the

manner of the respondent's apprehension and identification on

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June 5, 1969 and identified the various exhibits sought to be

introduced, including those contained in the Houston file. The

Service's trial attorney offered in evidence, over counsel's objection, the various documents showing respondent's identity, admission as an alien crewman, and desertion (Exs. 2, 3, 4, 5 and 6). The

immigration judge concluded that the respondent's arrest without

a warrant was proper, but that the Service had obtained his Form

I-95A unlawfully because he had not been given the Miranda

warning before he was asked to produce it. Since the Service had

ascertained respondent's identity through the (to the immigration

judge) illegally obtained Form I-95A and since the other documentary evidence, though already in the Service's files, had been

located only through his (to the immigration judge) illegally

obtained identification, the immigration judge concluded that the

latter documents were equally inadmissible as the "fruit of the

poisonous tree." He sustained counsel's objection to the admission

of all the documents and ordered the proceedings terminated for

lack of proof of the charges. The Service has appealed.

The interplay of several distinct, but related, legal principles

must he considered in appraising the admissibility of the evidence:

(1) Any witness, including an alien, may invoke the Fifth Amendment's privilege against self-incrimination, Sherman v. Hamilton,

295 F.2d 516 (C.A. 1, 1961), cert. denied 369 U.S. 820. (2) A person

who is in custody or in a custodial setting must be given the

Miranda warning before any statement he makes can later be

received in evidence in proceedings against him, Miranda v.

Arizona, 384 U.S. 436 (1966). (3) Evidence illegally obtained by

Government agents may not be used against the person whose

rights were thus violated, U.S. ex rel. Bilolcumsky v. Tod, 263 U.S.

149 (1923); Valeros v. INS, 387 F.2d 921 (C.A. 7, 196'7). (4) Where

Government agents obtain evidence thus illegally, not only is the

use of the evidence itself forbidden, but also use of information or

evidence deriving from the evidence thus illegally obtained, since

they constitute "the fruit of the poisonous tree," Nardone

United States, 308 U.S. 338 (1939); Wong Sun v. United States, 371

U.S. 471 (1963). (5) The alien registration requirements are essentially non -criminal and regulatory provisions. They therefore present no Fifth Amendment problem, United States v. Sacco, 428

F2d 264 (C.A. 9, 1970), cert. denied 400 U.S. 903, and the Miranda

warning is not a prerequisite to a request by a Service officer for

production of an alien registration receipt card, United States v.

Campos-Serrano, 430 F2d 173 (C.A. 7, 1970), affirmed on another

ground, 404 U.S. 293 (1971).

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Turning now to the facts developed of record, I agree with the

majority opinion and with the immigration judge that the respondent was properly stopped and lawfully detained by the

investigator. The respondent, oriental in appearance, was fleeing

from the rear door of a restaurant which had previously on

numerous occasions employed aliens here illegally as kitchen help.

He wore the uniform customarily worn by kitchen help and he was

trying to discard it. His sudden departure was obviously precipitated by the entrance on the premises of the other Service

investigators. Be could speak no English. On these facts, the

investigator had reason to believe that the respondent was an alien

in the United States in violation of the immigration laws who was

likely to escape before a warrant could be obtained for his arrest.

Under these circumstances, respondent's initial detention for

questioning, followed by his arrest without a warrant, was fully

justified under section 287(a)(1) and (2) of the Immigration and

Nationality Act, Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971),

cert. denied 404 U.S. 864; Cheung Tin Wong v. US INS, 468 ,F2d

1123 (D.C. Cir. 1972); Shu Fuk Cheung v. INS, 476 F.2d 1180 (CA. 8,

1073); Hon Zeurcg .;91.,no v. District Director, 356 F. Supp. 571 (E.D.

Mo. 1973). Cf. United States v. Mallides, 473 F2d 859 (C.A. 9, 1973).

I do not agree with the view of the majority that the respondent,

handcuffed and confined in a Service automobile, was merely

being temporarily detained for further interrogation and was not

the subject of a "full blown" arrest. Nor do I think that he was any

the less under restraint when he was taken from the car to his

own apartment and the handcuffs were removed. Can it be

imagined that, if he had then sought to make a break for freedom

under these circumstances, the investigators would have let him

go without hindrance on the notion that he was no longer in

Service custody?' It seems to me that he was lawfully in Service

custody when he was taken from the car and continued to be

lawfully in Service custody when, on request, he later produced his

Form I-95A.

The fact that he was in custody does not, in my view, compel the

conclusion that he was entitled to the Miranda warning before he

could be asked to produce his Form I-95A. As the majority

See Miranda v. Arizona, 384 U.S. 436 at 444 (1966): "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person

has been taken into custody or otherwise deprived of his freedom of action in

any significant way."

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opinion points out, under the pertinent regulations that form was

the evidence of alien registration designed for crewmen. None of

his Fifth Amendment rights was violated by compelling him to

register in the first place and carry his registration card, United

States v. Sacco, supra. In a non-custodial setting, its production

could be required without giving him the Miranda warning,

United States v. Campos -Serrano, supra. I think the same rule

applies even in a custodial setting. The Miranda requirement

arose out of the Fifth Amendment's privilege against self-incrimination. Since that privilege does not impair the Government's

right to request production of an alien registration card, it seems

to me that the right to the Miranda warning, derived from the

same privilege, is equally inapplicable, regardless of whether the

alien is in or out of custody.

Thus, in my view, the Form I-95A produced by the respondent

on request was not unlawfully obtained and should have been

received in evidence. The information as to the respondent's

identity which it revealed was information lawfully obtained, and

the other documents already in the Service's files in Houston,

which this identifying information led to, were equally lawfully

available for evidentiary purposes. They were, in fact, cumulative

evidence, for the Form I-95A was itself sufficient to establish the

respondent's identity as an alien crewman whose limited admission had already expired. The other documents could not, in any

event, be considered "the fruit of the poisonous tree" for there was

no "poisonous tree" to begin with. I agree with the majority

opinion that respondent's deportability as charged has been sustained by evidence which is clear, convincing and unequivocal. The

Service appeal is properly sustained.

That being so, I see no reason for the majority opinion to go

further and to lay down additional precepts which are not required

to reach this decision and which are, in my estimation, of dubious

validity. I refer particularly to the following statements appearing

on page nine of the majority opinion:

... Inasmuch as all the evidence on which the Service sought to rely was in

its possession long before the respondent's apprehension, the immigration

judge erred in his determination that that evidence was the 'fruit' of the

respondent's copy of his crewman's landing permit.

We conclude that, even if the respondent's copy of his crewman's landing

permit had been obtained by the Service in violation of his constitutional

rights ... the other documents presented by the Service would have remained

untainted, and were admissible in evidence.

The law realistically recognizes that on occasion some overzealous Government officials may overreach and may themselves

violate constitutionally protected rights in obtaining evidence of

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wrongdoing on the part of others. The rule excluding such evidence (the exclusionary rule) is founded on sound principles of

policy laid down long ago. See Weeks v. United States, 232 U.S. 383

(1914); Wong Sun v. United States, supra. In Silverthorne Lumber

Co. v. United States, 251 U.S. 385 (1920), the exclusionary rule was

extended to bar not only the evidence itself unlawfully obtained,

but also evidence derived from information thus illegally received.

The Court stated (251 U.S. at 392):

... The essence of a provision forbidding the acquisition of evidence in a

certain way is that not merely evidence so acquired shall not be used before

the court, but that it shall not be used at all. Of course this does not mean that

the facts thus obtained become sacred and inaccessible. If knowledge of them

is gained from an independent source they may be proved like any others, but

the knowledge gained by the government's own wrong cannot be used by it in

the way proposed . [Emphasis added].

And see Nardone v. United States, 308 U.S. 338, 340 -341(1939):

... To forbid the direct use of methods thus characterized but to put no

curb on their full indirect use would only invite the very methods deemed

`inconsistent with ethical standards and destructive of personal liberty ...'

The burden is, of course, on the accused in the first instance to prove to the

trial courts satisfaction chat wire tapping was unlawfully employed. Once

that is established—as was plainly done here—the trial judge must give

opportunity, however closely confined, to the accused to prove that a substantial portion of the ease against him was a fruit of the poisonous tree. This

leaves ample oppor tunity to the Gove rnment to ,nnvince the trial court that

its proof had an independent origin.

So far as I am aware, neither the exclusionary rule itself nor its

application to "the fruit of the poisonous tree" has thus far been

repudiated by the courts. See Wong Sun v. United States, 371 U.S.

471 (1963); Gelbard v. United States, 408 U.S. 41 (1972); United

States v. Calandra, 414 U.S. 388 (1974).

The majority opinion declares that otherwise undiscovered documentary evidence already in the files of any of the Service's many

far-flung offices at the time of the illegal apprehension complained

of cannot be considered "the fruit of the poisonous tree," even

though its existence is discovered and it is brought to light only by

identifying information unlawfully obtained in violation of the

alien's constitutional rights. I cannot agree. Such a holding would

effectively undermine the exclusionary rule and its corroliary.

Under it, identifying information, however unlawfully obtained,

could be used as a direct lead to a witness or other evidence,

otherwise undiscovered, and the witness or documentary evidence

thus unearthed could be used at trial.

The cases do not sustain this novel theory. The testimony of

witnesses whose identity was discovered through unlawfully obtained information has been discarded, Tucker v. Johnson, 352

642

Interim Decision #2272

F.Supp. 266 (E.D. Mich. 1972), affirmed without opinion 480 F2d

927 (6 Cir. 1973); United States v. Maltides, supra; United States v.

Guam-Sanchez, 484 F2d 590 (C.A. 7, 1973), cert. petition pending,

No. 73-820, solely on the question of standing.

An argument similar to the view of the majority opinion on this

point was presented by the Government in Au Yi Lau v. MS,

supra. The court's reaction, while not decisive, is illuminating. See

445 F2d 217 at 224, n. 11 and accompanying text.

Since I agree that the Service's evidence was lawfully obtained

without violating the respondent's constitutional rights, I would

sustain the Service appeal without discussion of what our decision

would be if his constitutional rights had, in fact, been breached.

643