Petition — Woo v. United States

a 83-1042 _—[tma-semome

FILED

DEC 23 1963

No. ALEXANDER L. STEVAS,

— OL ERK

IN THE “a

Supreme Court of the United States

OCTOBER TERM, 1983

ANDREW WOO,

Petitioner,

— against —

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Andrew P. Schultz

Jules A. Epstein

BLODNICK, SCHULTZ &

ABRAMOWITZ

Attorneys for Petitioner

One Hollow Lane

Lake Success, New York 11042

(212) 423-9300

Andrew B. Schultz

Jules A. Epstein

Of Counsel

UNITED STATES SUPREME COURT

1983 TERM

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ANDREW WOO,

Petitioner-Appellant,

-against-

UNITED STATES OF AMERICA,

Respondent-Appellee.

QUESTIONS PRESENTED

Petition

Por Writ

of

Certiorari

Docket #

1. Were petitioner's fourth amendment rights

violated where federal agents, concededly lacking

probable cause to arrest when they visited

petitioner's business office during regular busi-

ness hours, attempted to bootstrap probable cause

from a brief, unexceptional interview in which

petitioner, whose capacity to fully understood

English was questioned by the interviewing agent,

subsequently gave some alleged evasive or contra-

dictory answers?

2. Are the Supreme Court's holdings of no

— a

probable cause in Wong Sun (371 US 471 (1963)

Sibron (392 US 62 (1968) and Di Re (332 US 581

(1948), all relied on by petitioner as applicable

here, still good law?

o 26 «

PARTIES

Andrew Woo

Petitioner-Appel lant

United States America

Respondent ~-Appel lee

Blodnick, Schultz &

Abramowitz, P.C.

Lake Success Plaza

One Hollow Lane

Lake Success, N.Y.11042

(212 423-9300)

Andrew B. Schultz, Esq.

Jules A. Epstein, Esq.

Rex T. Lee

Solicitor General of

the United States

Department of Justice

Washington, D.C. 20530

Raymond J. Dearie

United States Attorney

for the Eastern

District of New York

225 Cadman Plaza East

Brooklyn, NY 11201

(212) 330-7057

by Carol B. Schachner,

Esq.

- iii -

— ee

TABLE OF CONTENTS

Questions Presented......... ° cocccce oe

List of Parties.....+-++e6. Wrrverirvriiti ll.

Table of ContentsS.....eeeeeeeeeees cocccccs °

Table of Authorities... .. cece eeeeeveeeeees

Order and Decision... .-seeeeeeevees cecces °

Statement of the CaS@...sseeeeeceeceveveens

Reasons for Allowance Of Writ. .-sseeeeeeees

Petition for Writ of Certiorari.....seeeees

Conclusion... .eeeeeeees ; eoccces coeccces

Appendix. ..ceeeeeeeseeeseees Trrrrre sees .

oe 49 «

—

TABLE OF AUTHORITIES

Page

Bruton v. United States

391 U.S. 123 (1968) 12

Sibron v. United States

392 U.S. 62 (1968) 21, 28

Spinelli v. United States

353 U.S. 410 (1969) 20

United States v. Bazinet

462 F.2d 982 (8th Cir. 1972) 27

United States v. Campbell

S81 F.2d 22 (2d Cir. 1978) 25

United States v. Ceballos

654 F.2d 17? (2a Cir. 1981) 26

United States v. Chadwick

532 F.2d 773 (lst Cir. 1976)

Affirmed 433 U.S. 1 (1976) 22

United States Vv. DiRe

332 U.S. 581, 68 S.Ct. 222 (1948) 21

United States v. Jit Sun Loo

. t re 26-27

United States v. Johnson

513 F.2d 819 (24 Cir. 1975) 18-19

United States v. Kearse

444 F.2d 62 (2d Cir. 1971) 19

United States v. Linnear

464 F.2d 355 (9th Cir. 1972) 22

United States v. McConne

329 F.2d 467 (2a Cir. 1564) 19

United States v. Place

660 F.2a 44 (2d Cir. 1981);

aff'd 462 U.S. ,103 S.Ct. 2637(1983)

United States v. Reed

572 F.2d 412 (2a Cir. 1978)

United States v. Rosario

543 F.2d 6 (2d Cir. 1976)

United States v. Watson

423 U.S. 411 (1975)

Wong Sun v. United States

-

- vi -

19-20

25-26

24-25

22

24

20, 24, 28

ORDER AND DECISION BELOW

The United States Court of Appeals for the

Second Circuit by order entered October 28, 1983,

contained as Appendix A, affirmed petitioner's

conviction of conspiring to import a controlled

substance into the United States in violation of

21 U.S.C. 952(a)(1), 963 (1976) and 18 USC 2

(1976). The Court of Appeals further affirmed the

denial by the District Court (Weinstein, J.) of

petitioner's motion to suppress certain physical

evidence consisting of a small piece of paper with

certain notations seized following petitioner's

arrest.

STATEMENT OF THE CASE

On October 28, 1983, the U.S. Court of Appeal:

for the Second Circuit affirmed Petitioner's con-

viction entered on March 1, 1983 in the United

States District Court for the Eastern District of

New York, after a nine-day trial before Judge Jack

B. Weinstein and a jury, and the trial court's

denial of Petitioner's motion for a directed ver-

dict of acquittal, and motion to suppress certain

physical evidence seized upon Petitioner's arrest.

The Court of Appeals granted Petitioner's

application pursuant to F.R.A.P. 41 for a stay of

the court's mandate pending consideration of his

Petition for a writ of certiorari in this court,

and Petitioner remains free on bail.

A superseding indictment was filed on or about

December 22, 1982 charging 5 defendants with two

counts: One count of conspiracy to import a quan-

tity of heroin hydrochloride from Thailand into

the United States (21 U.S.C.952(a); 960(a)(1);

963) and one count of importation of the said

heroin hydrochloride (21 U.S.C. 952(a);

960(a)(1); 18 U.S.C.2).

The trial began on January 3, 1983 and

concluded on January 14, 1983 when the jury found

ANDREW WOO and another defendant, FRANKLIN LIU,

guilty on counts "1" and "2". Another defendant,

LUIGI TURANO, was acquitted on both counts. Just

prior to trial, defendant MAYURET TANKHANCHOPHAT

pleaded guilty to both counts, and the case

a

against co-defendant ANTONIO TURANO was severed at

the government's request.

On March 1, 1983, Judge Weinstein sentenced

petitioner to a concurrent sentence of ten years

imprisonment and ten years special parole on

counts "1" and "2".

The government's case involved an alleged

conspiracy to import, and the alleged importation

of, 15 kilograms of heroin into the United States.

According to government agents’ testimony, in

October, 1982, drug enforcement agents in Bangkok,

Thailand learned that defendant MAYURET planned to

import heroin into the United States. Agents

monitored MAYURET's activities and hired an infor-

mant to arrange for transport to the United

States. An undercover government agent acted as

courier.

On October 13, MAYURET delivered a suitcase

with the heroin to an agent in Bangkok. On

October 14, 1982, the undercover agent brought the

suitcase into the United States, and by

prearrangement, was met at Kennedy Airport and

taken to a hotel nearby. After chemical analysis,

the heroin was removed and replaced with sham

materials and sample heroin.

On October 15, MAYURET arrived at Kennedy and

proceeded to a hotel on West 57th St. in

Manhattan. After arriving, MAYURET repeatedly

attempted to telephone defendant FRANKLIN LIU at

his home and office.

On Saturday morning October 16, defendant

FRANKLIN LIU was observed visiting MAYURET at her

hotel. Shortly after FRANKLIN LIU's visit with

her, MAYURET delivered to an agent a set of

keys to a Ford registered to defendant LUIGI

TURANO's wife. MAYURET instructed the agent to

put the suitcase in the car trunk and return the

keys to her.

FRANKLIN LIU was next followed by government

agents to West 34th St. where he was observed

entering an office building and leaving several

minutes later in the presence of two other men,

later identified as petitioner and ANTONIO TURANO

(LUIGI's brother). The three men were observed on

ais

34th St. in broad daylight; no conversations were

overheard, and the observing agent lost sight

almost immediately, without any awareness whether

the men remained together. The same day, an agent

delivered the car keys to other agents, and the

car was picked up outside MAYURET's hotel and dri-

ven to the DEA garage.

Sunday morning, October 17, 1982, an agent

returned the car to a place outside the hotel.

The agent went to MAYURET's room and returned the

keys. MAYURET was next observed and videotaped

leaving the hotel and walking on 57th St. past the

Ford. Defendant FRANKLIN LIU then visited her at

the hotel, and left soon after. FRANKLIN LIU was

observed and videotaped crossing 57th» St. and

entering a building at 457 W. 57th S ., where

he went to ANTONIO TURANO's apartment. LUIGI

TURANO then arrived at ANTONIO's apartment and,

minutes later, was observed and videotaped going

to and driving away in the Ford, containing the

subject suitcase in the trunk.

One Gaetano Guiffrida, arrested but not

indicted, and a male caucasian known only as

“Peter” (apparently never arrested) were also pre-

sent in ANTONIO's apartment. An unidentified

Oriental male was also seen by the elevator opera-

tor going to ANTONIO TURANO's apartment. LUIGI

later testified it was petitioner.

Agents followed LUIGI TURANO as he drove to a

garage on East 86th St., where he was seen dialing

a pay phone and overheard to state, “I'm okay,

I've got it." LUIGI was then arrested by govern-

ment agents who, upon arrest, seized his wallet,

in which they found the Ford trunk key. LUIGI

TURANO informed the arresting agents he had

received the keys earlier Sunday from his brother

ANTONIO, who instructed him to drive to that garage.

MAYURET was arrested later Sunday evening at

the hotel. ANTONIO TURANO and Guiffrida were

arrested at ANTONIO's home Sunday afternoon.

Janice Turano (LUIGI's wife) was also arrested

Sunday. FRANKLIN LIU and petitioner were arrested

the next day, Monday, at a business office suite

where each of them, plus others, maintained offi-

eT

al

i *

ces on Fifth Ave. in New York. As noted, the man

named “Peter”, also present in ANTONIO's apartment

Sunday, was apparently never arrested.

On Monday, October 18, at about 3 P.M., peti-

tioner WOO was arrested, and then brought before a

U. S. Magistrate in the Eastern District of N.Y.

At the time of his warrantless arrest, there was

no “probable cause" as required by the Fourth

Amendment to the U.S. Constitution. A summary of

the documents filed by the government and relied

upon in connection with petitioner's arrest

reveals that petitioner's name first appeared in a

complaint sworn to October 18, 1982 by Agent

Jordison of the DEA.

Prior to October 18, the government had pre-

pared and filed several documents without

reference to petitioner. The complaint by Agent

Jordison against WOO, issued after WOO'S

warrantless arrest on October 18, contains a few

sketchy and general references to WOO by name.

First, the complaint suggests WOO was seen on

Saturday, October 16, near ANTONIO's office on

a Ne

West 34th St. in the presence of ANTONIO TURANO

and FRANKLIN LIU.

The complaint next states that an “oriental

male" supposedly identified subsequently as WOO

was “among a number of individuals” who visited

ANTONIO's apartment Sunday morning. WOO is

described as openly identifying himself by name to

an elevator employee in the building where ANTONIO

resided. Again, WOO is described as moving about

routinely in broad daylight without any untoward

suggestion.

WOO and FRANKLIN LIU concededly each maintained

offices in a business office suite at 366 Fifth

Ave. with a common telephone switchboard

apparently used by several business people,

including WOO and FRANKLIN LIU.

Jordison's complaint also alleges that ANTONIO

TURANO, after his Sunday arrest purportedly

uttered a-statement that he had lent his car “toa

friend of his named Andy" at some unspecified

time.

Agent Henley testified at the suppression

hearing upon WOO's motion claiming an absence of

“probable cause” for his warrantless arrest.

Henley conceded on direct examination that he went

to visit WOO's business office on Monday after-

noon, October 18, without the intention of

arresting WOO. Thus, up to the time government

agents visited WOO at his office, the DEA agents

themselves concededly did not believe probable

cause existed to arrest WOO.

Henley, at the hearing, described a relatively

short conversation he said he conducted with WOO

at WOO's office. Curiously, this alleged inter-

view appears nowhere in the Jordison complaint

against WOO.

In any event, Henley's brief interview with woo

did not provide any further sufficient basis to

establish the requisite probable cause to arrest

woo. First, Henley testified that WOO "identified

himself" and voluntarily agreed that "I !fHenley]

could ask my questions and he would answer". Then

Henley asked if WOO "knew a Mr. ANTONIO TURANO",

and WOO “told me [Henley] he did". WOO then told

Henley readily that "Mr. TURANO was both a friend

and a business associate."

Henley then began to testify that "I then asked

Mr. WOO if he had ever borrowed...," but Henley

then changed his testimony in mid-stream and said

he allegedly “asked Mr. WOO if he owned a car”.

Henley then testified WOO allegedly “told me that

he did not.”

Henley's testimony on this point is, at most,

marginal and strained. He suggested no relevant

reason to ask WOO if he owned a car, inasmuch as

only LUIGI's wife's car was involved in the tran-

saction. Nor did the government suggest that WOO,

after openly identifying himself, agreeing to

answer Henley's questions and freely acknowledging

his prior business and social relationship with

ANTONIO TURANO, had any reason to deny owning a

car when in fact WOO owned his own car. The

government at no time even tried to argue non-

ownership of a car by WOO. Moreover, and all the .-

more reason not to value Henley's testimony on

this point, is the fact that, several lines later

o 46 «

in the hearing transcript, Henley himself concedes

WOO told him, "...I do own a car".

Henley next asked WOO if he ever borrowed

TURANO's car. Henley testified "He said, no, that

he had never borrowed TURANO's car". Henley now

presented WOO with ANTONIO TURANO's dubious ard

unfounded alleged post-arrest statement that

ANTONIO TURANO "lent his car to Andy".

According to Henley, WOO said "Why should I

borrow his car? I have my own car." Henley

pressed the issue with another question; "But you

never borrowed Mr. TURANO's?" To which WOO

replied unconditionally, "No".

Thus, WOO repeatedly denied borrowing TURANO's

car. WOO's firm and open denial to Henley about

borrowing the car merely reinforced the inherent

untrustworthiness of TURANO's unverified alleged

post-arrest remark.

A few pages later in the hearing transcript,

Henley testified he didn't recall TURANO

“specifically mentioning the keys, just the fact

the car was loaned". Agent Jordison later contra-

o if -«

dicted Henley at the suppression hearing and spe-

culated that “lending could be lending him the car

keys...". This contradiction in the suppression

hearing testimony of two crucial government agents

illuminates the nature of the government's grasping

effort to bootstrap an inherently suspect post-~-arrest

statement by ANTONIO TURANO, which the government

knew or should have known to be unfounded prior to

WOO's arrest, into an over-aggressive ploy to

create non-existent probable cause.

On the record here, the government had no

basis for relying upon ANTONIO TURANO's alleged

post-arrest statement that "he lent his car to

Andy" when determining whether probable cause

existed for WOO's warrantless arrest.

First, the veracity of TURANO's alleged post-

arrest statement was inherently suspect. ANTONIO

TURANO's transparent motivation for shifting the

blame to others after his arrest should have been

manifest. Bruton v. United States, 391 U.S.

123, 136, 88 S.Ct. 1620, 1628 (1968).

Second, the government's own file confirmed

= =

that the car was in the government's physical

possession on Saturday until Sunday when LUIGI

entered the parked vehicle. After an agent

returned the keys to MAYURET Sunday morning,

the car was continuously under government sur-

veillance and WOO admittedly was never seen in or

even near the car. The government's own awareness

belied any belief TURANO had lent his car to WOO.

Third, the government file showed FRANKLIN

LIU, not WOO, visiting MAYURET moments before she

gave the agent car keys Saturday morning. The

likelihood that FRANKLIN LIU delivered keys to

MAYJRET at that time plainly refuted ANTONIO's

alleged post-arrest statement the next day that

"he lent the gray Ford...to a friend of his named

“Andy". Moreover, the government file also indi-

cated MAYURET telephoned FRANKLIN LIU, not WOO, at

FRANKLIN LIU's home repeatedly and asked for

FRANKLIN LIU as well on the business office

switchboard phone. These facts, all known to the

government prior to WOO's arrest, made it even

more unlikely that ANTONIO TURANO's alleged post-

se

arrest statement was worthy of any semblance of

belief.

Fourth, ANTONIO TURANO's alleged post-arrest

statement did not specify any time he allegedly

“lent his car to Andy". Absent a time frame, the

probable cause value of ANTONIO's alleged state-

ment could hardly be cognizabie.

Returning to Agent Henley's testimony at the

probable cause hearing, Henley said he asked WOO

if “he had seen Mr. MTURANO recently", without

explaining what he meant by the term “recently”.

Woo said "that he had not".

Next, WOO unhesitatingly told Henley he knew

where TURANO's office on 34th St. was Located.

far, nothing in Henley's own version of his con-

versation with WOO even remotely resembled any

admission of criminal conduct by WOO.

Henley next allegedly asked WOO a few quick

questions about visiting ANTONIO's office. At

this point Henley halted the conversation and

said:"Wait a minute, now. He has a bathroom and

a bathtub in his office?". Henley was now

—" oe

So

obviously very much aware that his conversation

with WOO was hampered by a language barrier, as

demonstrated by Henley's own testimony:

"At that point I stopped and I said, "Mr. WOO, I

don't speak Chinese. Do you understand my

questions, because if you don't understand my

English we can't continue the conversation."

Can there be any other explanation for Henley's

own decision to “start...again"? The government

offered no such explanation, and petitioner sub-

mits there could be none. WOO reportedly said he

could understand Henley, “so I fHenley] started

again."

According to Henley, WOO then said he saw

ANTONIO Saturday at ANTONIO's office. WOO then

said "I left with Mr. TURANO". Finally, Henley

also suggested that FRANKLIN LIU had been outside

ANTONIO TURANO's office at the time with ANTONIO

TURANO and WOO, and WOO acknowledged FRANKLIN

LIU's presence.

WOO's answers to Henley's questions essentially

reflected information then available to the

government. In substance, WOO acknowledged he

knew ANTONIO TURANO as a prior business and social

acquaintance, and he saw ANTONIO TURANO and

FRANKLIN LIU Saturday morning, outside ANTONIO

TURANO's office.

Any temporary inaccuracy or hesitation in

petitioner's responses was revealed as insubstan-

tial, particularly Henley's own self-initiated

effort in mid-conversation to assure WOO's

understanding of the questions. Henley admitted

WOO "speaks with an accent" and Henley also

interrupted the flow of the conversation to assure

himself WOO understood him.

This unexceptional conversation offered no

basis to believe petitioner was engaged in any

criminal activity. Henley's conversation itself

produced no tangible evidence against WOO nor any-

thing remotely resembling an admission of guilt.

WOO merely repeated information already known to

the government--prior information, agents them-

selves conceded, which failed to provide probable

cause to believe WOO was engaged in criminal

conduct:

"Q [by prosecutor]: "When you "Henley!

went to the business premises ‘of

WOO], had you determined as you went

there that you were going to effect

the arrest of Mr. WOO?

A Not positively, no."

Henley never even bothered to ask WOO what sub-

ject, if any, WOO discussed Saturday with ANTONIO

TURANO and FRANKLIN LIU. It may surely be

inferred that, if Henley attached any significance

to his conversation with WOO, he would have asked

WOO about the nature of any conversation outside

ANTONIO TURANO's office among FRANKLIN LIU, ANTONIO

and WOO. The fact is he did not.

In sum, the government could suggest nothing

more on “probable cause" than WOO'S mere asso-

ciation with previously-known business acquaintan-

ces, observed by agents in broad daylight absent

any suggestion of non-routine conduct by WOO. The

government also argued petitioner tried to deny

his Saturday presence to Henley, but, even so, it

is at least equally inferable he may have done so

for innocent reasons, including a natural desire

to avoid being unfairly implicated in activities

- 17 =

in which he did not participate, or avoid becoming

a government witness in a criminal proceeding.

REASONS FOR ALLOWANCE OF WRIT OF CERTIORARI

The Court of Appeals decision affirming

petitioner's conviction and denial of his

suppression motion in the District Court was in

conflict with the applicable decisions of this

Court, and other federal courts of appeal on the

question of probable cause for warrantless arrests

under the Fourth Amendment.

PETITION

Denials of participation cannot substitute for

direct or circumstantial proof of criminal involveme

Even alleged false exculpatory remarks to law

officers are wholly insufficient evidence of guilt

and may be at least as consistent with innocence

as guilt:

",...this Circuit in United States v. Kearse, 444

F.2d 62 (2 Cir. 1971), and United States v.

McConney, 329 F.2d 467, 470 (2 Cir. 1964), has

held that falsehoods told by a defendant in the

hope of extricating himself from suspicious cir-

cumstances are insufficient proof on which to con-

vict where other evidence of guilt is weak and the

evidence before the court is as hospitable to an

interpretation consistent with the defendant's

—s>

innocence as it is to the Government's theory of

guilt."

(U.S. v. Johnson, 513 F.2d 819, 824 (2d Cir.1975))

Moreover, association with guilty parties or

presence at a crime scene combined with alleged

false exculpatory statements are still insuf-

ficient evidence of culpable conduct:

"It would place too much weight on defendant's

extra-judicial exculpatory statement to authorize

a conviction based almost solely on the fact that

part of the statement, not involving the corpus

delicti of the crime, was shown to be false. The

other evidence of guilt was extremely weak, and we

do not think the statement was sufficient indepen-

dent proof to justify denial of the motion for

acquittal."

(U.S. v. McConney,329 F.2d 467, 470 (2d Cir.1964))

Accord: United States v. Kearse, 444 F.2d 62, 64

(2a Cir. 1971).

Assuming arguendo Henley fairly recounted a

few temporarily inaccurate or even false answers

to his questions (a suggestion unsupported by

the record discussed above), a few such

exculpatory statements as such are not probative

proof of criminal conduct, or the basis to

establish probable cause. United States v. Place,

660 F.2d 44,49 (2d Cir.1981), affirmed on other

Ss

grounds,U62 US___, 103 S.Ct.2637(1983).

As this Court has often held, mere suspicion by

an arresting officer does not satisfy the basic

Fourth Amendment probable cause requirement:

"It is basic that an arrest with or without a

warrant must stand upon firmer ground than mere

suspicion."

(Wong Sun v. United States, 371 U.S.471,479,83

S.Ct. 407, 413(1963) )

"A bald and unilluminating assertion of

suspicion...is entitled to no weight in appraising

the Magistrate's decision fas to probable cause’."

(Spinelli v. United States, 393 U.S. 410,414,89

S.Ct. 584,598(1969) )

An inadequate assertion of suspicion cannot

?

give additional weight to otherwise insufficient

allegations:

"But just as a simple assertion of police

suspicion is not itself a sufficient basis for

a magistrate's finding of probable cause, we

do not believe it may be used to give additional

weight to allegations that would otherwise be

insufficient".

(Spinelli v. United States, 393 US at 418, 89S.

Ct.at 590)

It is axiomatic that mere association with per-

sons suspected of criminal activity, essentially

all information possessed by the government about

- 20 =-

é

WOO upon his arrest, cannot establish probable

cause to arrest:

"The argument that one who "accompanies a crimi-

nal to a crime rendezvous" cannot be assumed to be

a bystander, forceful enough in some circumstan-

ces, is farfetched when the meeting is not secre-

tive or in a suspicious hide-out but in broad

daylight in plain sight of passers-by, in a public

street of a large city, and where the alleged

substantive crime is one which does not

necessarily involve any act visibly criminal. If

Di Re had witnessed the passing of papers from

hand to hand, it would not follow that he knew

they were ration coupons, and if he saw that they

were ration coupons, it would not follow that he

would know them to be counterfeit. Indeed it

appeared at the trial to require an expert to

establish that fact. Presumptions of guilt are

not lightly to be indulged from mere meetings."

(United States v. Di Re, 332 U.S. 581,593, 68

S.Ct. 222(1948)

Again, in Sibron v. United States, 392

reversed a conviction and stressed that:

"The officer was not acquainted with Sibron and

had no information concerning him. He merely saw

Sibron talking to a number of known narcotics

addicts over a period of eight hours. It must be

emphasized that Patrolman Martin was completely

ignorant regarding the content of these conver-

sations, and that he saw nothing pass between

Sibron and the addicts. So far as he knew, they

might indeed “have been talking about the World

Series." The inference that persons who talk to

narcotics addicts are engaged in the criminal

traffic in narcotics is simply not the sort of

o» 8 &

reasonable inference required to support an intru-

sion by the police upon an individual's personal

security.”

Again, in United States v. Chadwick, 532 F. 2d

773,784 (lst Cir. 1976), aff'd on other grounds

433 U.S.1(1976), this crucial principle was

reaffirmed:

“Association with known or suspected criminals

does not, in and of itself, establish probable

cause. [citations omitted)"

Similarly, the Second Circuit affirmed a

district court's determination of no probable

cause in United States v. Rosario, 543 F. 2d 6,9

(2a Cir. 1976):

"The inference that persons who talk to known

dealers in narcotics have engaged in criminal

traffic in narcotics “is simply not the sort of

reasonable inference required to support an intru-

sion by the police upon an individual's personal

security".

As put succinctly by the Ninth Circuit in

United States v. Linnear, 464 F. 2d 355,356 (9th

Cir.1972):

“There was no justification for the warrantless

arrest of defendant who was, for all that appears,

a mere bystander or accompanier"

The government referred to an alleged statement

by co-defendant ANTONIO TURANO after his arrest

that TURANO at some unspecified time supposedly

lent his car “to a friend of his named Andy". The

alleged comment was purportedly made by TURANO

on Sunday at about noon. WOO was arrested at 3

p.m. Monday. TURANO's alleged remark cannot

reasonably be utilized by the government as any

semblance of a probable cause underpinning for

WOO's warrantless arrest (pages 12-14 above).

Petitioner's warrantless arrest was devoid of

probable cause and was, in fact, based on prosecu-

torial overreaching and hastiness. Illustrative

of that overzealousness is the fact of the govern-

ment's forced release of both Gaetano Guiffrida

and Janice Turano soon after their arrests,

without any indictments issuing against them. The

government did not even choose to arrest "Peter",

another person in ANTONIO's apartment Sunday

morning. Significantly, WOO's arrest was without

warrant, although more than 24 hours elapsed bet-

ween the arrests of co-defendants and petitioner.

The government had considerable time to seek an

- 23 -

arrest warrant against petitioner, and it did

secure various search warrants against others

based upon affidavits sworn to Sunday. If these

other warrants were obtainable on October 17, why

didn't the government apply to the Court for an

arrest warrant for WOO?

An apparent answer to this question was offered

by this Court in Wong Sun, supra, (371 U.S.at48l,

83S.Ct.at414):

"It is conceded that the officers made no attempt

to obtain a warrant for Toy's arrest. The simple

fact is that on the sparse information at the

officers’ command, no arrest warrant could have

issued consistently with Rules 3 and 4 of the

Federal Rules of Criminal Procedure, 18 U.S.C.A."

The requirement of probable cause for an arrest

is no less stringent for warrantless arrests than ,

arrests with warrants. Wong Sun, supra, 371

U.S.at478-480

Indeed, several courts have suggested that a

warrantless arrest at a home or private office

should be discouraged absent exigent circumstances

by no means present here. See United States v.

Watson, 423 U.S. 411, 423 (1975); United States

—

v. Reed, 572 F. 2d 412, 422 (2d Cir. 1978);

United States v. Campbell, 581 F. 2d 22, 25 (2d

oa

Cir. 1978).

The government's speculative information about

WOO when he was arrested constituted nothing more

than guesswork Or a possible government theory of

“guilt by neeiieibnat’

WOO's allegedly false exculpatory statements to

Henley cannot be bootstrapped with WOO's mere

association with suspected criminals to generate

probable cause for arrest where none exists.

Denials of association are not proof of criminal

conduct. U.S. v. Place, supra, 660 F.2d at 49,

(in which a defendant's telling an undercover

officer that the defendant recognized the

officer's identity was one of probable cause

claims held insufficient).

Even on factual records more substantial than

here, federal appellate tribunals have refused to

sustain a probable cause finding for arrest or

search warrant issuance. As the Second Circuit

noted in United States v. Place, supra, 660 F.2d

a 28 es

at 49:

"Nervous behavior, travelling from a_ so-called

“source city,” minor errors on a baggage tag,

telling an undercover officer that his identity as

such was recognized by the suspect, and the fac-

tors involved here may be abnormal, but by them-

selves they are clearly not enough to constitute

probable cause."

In United States v. Ceballos, 654 F.2d 177,185

(2d Cir. 1981), the Second Circuit found probable

Cause absent on "The facts known to the agents:

that Ceballos entered the three family house in

which Zea lived at 11:00 P.M., left 5 to 10 minu-

tes later carrying a paper bag,...looked up and

down the street "in a curious manner" and was

hispanic...":

"They did not provide probable cause to believe

he was committing a crime. Moreover, while the

brown paper bag has been described as a common

container for narcotics, the carrying of a paper

bag does not provide an “objective basis" from

which it can be reasonably concluded that a nar-

cotics offense is being committed...Nor can the

short duration of a visit without more facts than

were known to the agents here provide probable

cause for arrest."

The Ninth Circuit in United States v. Jit Sun

Loo, 478 F. 2d 401, 404-405 (9th Cir. 1973) has

held:

—

Z this court cannot find that the customs offi-

cers had “reasonable grounds" or “probable cause”

to make the arrest of appellants Jit Sun Loo and

Ah Sooi Wong in their room at the Hilton Inn on

the evening of January 27, 1972. The circumstan-

ces of this case could raise a suspicion in the

minds of the customs agents that appellants had or

were about to have some connection with the

Honolulu defendants, but it is axiomatic that mere

suspicion will not justify an arrest without a

warrant.”

In United States v. Bazinet, 462 F. 2d 982, 988

(8th Cir.1972), the Eighth Circuit ruled probable

cause for arrest was lacking:

"We conclude, on the contrary, that there was not

probable cause for Bazinet's arrest. Captain

Graff admitted at the hearing on the motion to

suppress that he had no information whatever to

connect Bazinet with the commission of any crime,

other than the fact that an officer who accom-

panied Graff to the scene recognized Bazinet as a

convicted felon. Furthermore, Graff testified

that the major reason he arrested Bazinet was

Knox's presence in Bazinet's car. The government

argues that the contents of the paper bag gave

probable cause to believe that all three occupants

of the VW were engaged in illegal conduct. If

this reason ever gave probable cause with respect

to Bazinet, it was dissipated when Graff searched

the van initially and found no additional evidence

of criminal activity on Bazinet's part".

After measuring the information known to the

government to justify WOO's arrest, and drawing

every reasonable inference about what a prudent

man in the circumstance might conclude, there was

oP «

no credible foundation to suggest WOO was engaging

in alleged criminal activity at the time of his

arrest. Even a "suspicion" of such involvement

cannot be inferred merely from his prior business

and social acquaintance and presence with two

other defendants, and the inconclusive conver-

sation with Henley just prior to WOO's arrest.

Absent requisite probable cause, an allegedly

incriminating piece of paper seized after WOO's

arrest could not properly have been allowed into

evidence at trial (Wong Sun v. United States,

supra, 371 U.S. at 484, 83 S.Ct.at 415), since the

paper, for what it is worth, did not come from a

source independent of the tainted arrest:

“A search unlawful at its inception may "not!

be validated by what it turns up.”

As this Court found in Sibron v. United States,

supra, 392 U.S. at 62-63:

"Nothing resembling probable cause existed until

after the search had turned up the envelopes of

heroin. It is axiomatic that an incident search

may not precede an arrest and serve as part of its

justification....Thus the search cannot be

justified as incident to a lawful arrest."

— -

CONCLUSION

The petition for a writ of certiorari should be

granted on the substantial ground that the deci-

petitioner's conviction conflicts with applicable

j

sion of the Court of Appeals affirming

decisions of this Court and other federal

appellate courts prohibiting warrantless arrests

without probable cause.

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of

Appeals for the Second Circuit, held at the United

States Courthouse in the City of New York, on the

28th day of October, One Thousand Nine Hundred and

Eighty-Three.

PRESENT:

HON. RICHARD J. CARDAMONE,

HON. LAWRENCE W. PIERCE,

HON. GEORGE C. PRATT,

Circuit Judges.

UNITED STATES OF AMERICA, s—t °

Appellee,

~v- ORDER

LUIGI O. TURANO, 83-1095

Defendant,

-and-

ANDREW WOO and FRANKLIN LIU,

Defendants-Appellants.

EEE IE TR x

Andrew Woo, defendant-appellant, appeals from a

judgment of the United States District Court for

the Eastern District of New York (Weinstein,

C.J.), entered March 1, 1983, convicting Woo,

after jury trial, of conspiring to import a

substantial quantity of heroin into the United

States in violation of 21 U.S.C. §§ 952(a),

960(a)(1), 963 (1976), and of importing heroin

into the United States in violation of 21 U.S.C.

§§ 952(a), 960(a)(1), 963 (1976) and of 18 U.S.C.

§ 2 (1976).

Woo contends that he was arrested without

probable cause. Consequently, he argues, the

trial judge should not have admitted into evidence

against him an incriminating piece of paper which

was seized from him incident to his arrest. Woo

also claims there was insufficient evidence to

convict him and, hence, Judge Weinstein erred in

denying his motion for judgment of acquittal pur-

suant to Fed. R. Crim. P. 29.

A judicial assessment of whether probable cause

to arrest existed must be made "on the basis of

the collective knowledge of the police rather than

that of the arresting officer alone." United

States ex rel. LaBelle v. LaValle, 517 F.2d 750,

753 (2d Cir. 1975), cert. denied, 423 U.S. 1062

(1976). Moreover, courts must evaluate collec-

tively and cumulatively the information relied

upon by the arresting officers. United States v.

Olsen, 453 F.2d 612, 616 (2d Cir.), cert. denied,

406 U.S. 927.(1972). Herein, the evidence against

Woo indicates that "the facts available to the

officers at the moment of the arrest were

‘sufficient to warrant a prudent man in believing

that the petitioner had committed... an

offense." LaValle, 517 F.2d at 753 (quoting Beck

v. Ohio, 379 U.S. 89, 91 (1964). Throughout the

weekend prior to his arrest, Woo constantly met

with his co-conspirators as the conspiracy to

import heroin unfolded. Moreover, a co-defendant

arrested prior to Woo's arrest stated that he had

lent a car to Woo. The government, through its

searches of an informant coupled with other evi-

dence, had reason to believe that the conspirators

intended to use the car to store and transport the

heroin. Later, when Woo was interviewed by a

United States agent, he gave contradictory and

A-3

false answers. Hence, viewing the evidence

cumulatively and "in the light most favorable to

the government," United States v. Jackson, 652

F.2d 244 (2d Cir. 1981), we conclude that the

district judge correctly found that the government

had probable cause to arrest Woo. Consequently,

Judge Weinstein did not err in admitting into evi-

dence against Woo the piece of paper seized from

Woo's wallet incident to his arrest.

We also reject Woo's claim that the evidence

was insufficient to sustain a conviction for the

crimes charged. In reviewing a conviction, this

Court must determine whether, “viewing the evi-

dence in the light most favorable to the

Government, any rational trier of facts could have

found the defendant guilty beyond a reasonable

doubt." United States v. Leroy, 687 £.2d 610, 616

(2d Cir. 1982), cert. denied, 103 S.Ct. 822

(1983). Herein, Woo was not merely present at the

commission of the crime; rather, he continually

met with his co-conspirators at important junc-

tures as the importation conspiracy was executed.

A-4

Moreover, he served as an important link between

different parties to the conspiracy. In addition,

the note found in his wallet bore the following:

"Mrs. Mayures, Thangkungjanapas 60,000." Evidence

was presented that Thangkungjanapas had arranged

to have the heroin imported into the United States

from Thailand. The jury reasonably could have

concluded that the number 60,000 represented the

per kilo importation price of heroin, since the

govenment offered evidence to this effect. In

short, there was substantial evidence from which

the jury could find Woo guilty beyond a reasonable

doubt of conspiracy to import heroin and of the

substantive charge of importation of heroin.

For the foregoing reasons, the judgment con-

victing Woo is affirmed.

s/

Honorable Richard J. Cardamone,

s /

Honorable Lawrence W. Pierce

s /

Honorable George C. Pratt

A-5