# Petition — Woo v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0990%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 465 U.S. 1027

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0990%3A1. Public record. Not legal advice.