# Interim Decision #2272

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## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

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

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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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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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aeoir%3A98fbbefe87a35efa. Public record. Not legal advice.