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Brief for the United States, Wong Sun v. United States/Argument/Petitioners were lawfully arrested upon probable cause

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I

Petitioners were Lawfully Arrested upon Probable Cause

It is the position of the government that, in the circumstances of this case, the petitioners were lawfully arrested. In the case of Toy, reasonable grounds for an immediate arrest without warrant arose from the combined impact of two elements: first, the specific designation of Toy as a source of supply of narcotics by a man deemed reliable by a federal narcotics agent, and, second, the flight by Toy when confronted ​with a narcotics agent's badge and identification. The narcotics agent did not arrest Toy upon the word of the informer (Hom Way) alone. He first went to Toy's door for further investigation and sought to engage Toy in conversation under guise of seeking laundry and, then, by making known his identity as a federal narcotics agent. At this point Toy took flight, and the agent pursued and arrested him.

In the arrest of Wong Sun, the identification was the product of the combined information from both Yee and Toy; the former was the authentic possessor of the heroin and the latter the supplier of exact and correct information as to the location of the heroin and of Wong Sun.

A. Under Common Law and 20 U.S.C. 7607, Arrests May be Made Without Warrant Upon Probable Cause or Upon "Reasonable Grounds to Believe That The Person to be Arrested Has Committed" a Narcotics Felony

Probable cause for arrest under the Fourth Amendment and the specific statutory "reasonable grounds" upon which federal narcotic agents may arrest without a warrant "are substantial equivalents of the same meaning". Draper v. United States, 358 U.S. 307, 310. The broad requirements of probable cause, to be applied to the specific facts of cases as they arise, have been stated by this Court as follows:

In dealing with probable cause, * * * as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is ​accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De Armit, 90 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U.S. at 161. And this "means less than evidence which would justify condemnation" or conviction, as Marshall, C.J., said for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall's time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where "the facts and circumstance within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. * * * [Brinegar v. United States, 338 U.S. 160, 175-176].

​To this may be added the further illumination of observations in the courts of appeals. In Christensen v. United States, 259 F. 2d 192, 193, the Court of Appeals for the District of Columbia Circuit said:

Taking into account the detailed description of appellant secured through the advance "tip" along with the detective's observations of appellant's appearance and conduct * * * we hold that there was probable cause for the officer to make the arrest. We cannot view the advance "tip" information and the observations 6f the police detective in two separate logic-tight compartments. Neither one standing alone would constitute probable cause, but together they composed a picture meaningful to a trained, experienced observer.

And in Bell v. United States, 254 F. 2d 82, 85 (C.A.D.C.), Judge Prettyman noted that suspicion on reasonable grounds is not the "mere suspicion" denounced in Mallory v. United States, 354 U.S. 449, 454, and stated (254 F. 2d at 85-86):

[Officers] do not schedule their steps in the calm of an office. Things just happen. They are required as a matter of duty to act as reasonably prudent men would act under the circumstances as those circumstances happen. * * *

*⁠*⁠*⁠*⁠*

[The] action [of an officer experienced in the narcotics traffic] is not measured by what might be probable cause to an untrained civilian passerby. When a peace officer makes the arrest, the standard means a reasonable, cautious and prudent peace officer. The question ​is what constituted probable cause in the eyes of a reasonable, cautious and prudent peace officer under the circumstances of the moment.

B. The Combination of The Naming of Petitioner Toy by Informer Hom Way as His Source of Supply of Narcotics, and The Attempted Flight of Toy When The Federal Agent Identified Himself as A Federal Narcotics Agent, Gave The Agent Probable Cause Justifying The Immediate Arrest of Toy

At least two elements were operative in the arrest of petitioner Toy, and we need not and do not attempt to separate them or to rely upon either element alone. The combination of both, we believe, adds up to probable cause for the arrest of Toy.

1. Hom Way's statement that he had obtained narcotics from Toy was entitled to great weight.

The first element, in point of time, in the composite of elements that led to Toy's arrest was the statement of informer Hom Way that he had obtained an ounce of heroin, the night before, from Toy. In appraising the weight of that one statement, one cannot determine its reliability solely upon the basis of whether Hom Way had or had not previously furnished information to the agents. We think that, in stressing this factor, the court of appeals unduly emphasized what is only one element in the determination of an informer's reliability—the receipt of prior information from him. The element of past receipt of information would clearly be a favorable factor, but it is not indispensable. When this Court, in Draper v. United States, 358 U.S. 307, referred to the fact that there the government agent had received information from the special employee in the past, it was not ruling that ​this was indispensable, or that an agent cannot have other reasons for believing an informant. An adequate judgment of reliability depends on a number of circumstances. If relatives of an accused give information as in United States v. Naples, 192 F. Supp. 23 (D. D.C.), pending on appeal, C.A. D.C., No. 16436,[1] officers have a right to take the information very seriously, even if they have never received information from such persons before.[2] Very little corroborating information would be needed to justify an officer in reaching the conclusion that the information given was reliable. On the other hand, more corroboration may reasonably be deemed necessary if information came from an anonymous tip or from a source, theretofore unknown, as to which the officers had no ​opportunity for judgment.[3] The question is always whether under the particular circumstances the agents acted reasonably.

In this case, agent Wong was dealing with a person (Hom Way) whose character he had had an opportunity to appraise. The court of appeals observed that there was "no showing in this case that the agent knew Hom Way to be reliable" (R. 139-140). However, the federal officer testified that he had known Hom Way for six weeks and judged him to be reliable. It was not incumbent on the prosecution to develop in the first instance all the detailed mental ​processes that went into that judgment. The officer was experienced and could draw upon his investigative training and experience in making his appraisal. If petitioner wished to attack the basis of the officer's judgment, it was open to him to seek further details on cross-examination or to offer countervailing evidence. Petitioners cannot rely upon mere conjecture by counsel (R. 60) that the federal agent could have known Hom Way only by limited investigation or that such investigation could not have disclosed probable cause for reliance on him.

Furthermore, the evidence did show circumstances pointing to the reliability of the information beyond the officer's personal appraisal of Hom Way. The latter, while under arrest, gave specific information that he had obtained an ounce (a substantial amount) of heroin the night before from a particular person who operated a laundry on a named street in San Francisco. The very fact that Hom Way was this specific in his statement, while under arrest, tended to give credence to his information, for the information was in sufficient detail to be checked and Hom Way could and would be confronted with any discrepancies if the information proved to be incorrect—as he doubtless knew.

The specificity of information given by an informant is a factor which the courts have considered in determining whether an officer can reasonably rely upon it. See Jackson v. United States, C.A. D.C., No. 16631, decided February 8, 1962. In Draper v. United States, 358 U.S. 307, one of the elements which entered into the evaluation of probable cause was the ​fact that the informant had given specific information of the defendant's appearance and manner which observations by the officers could corroborate.[4] The courts have held that information given by persons under arrest or by their friends is entitled to credence so that when it is corroborated only slightly the total circumstances can and do amount to probable cause for an arrest. See Thomas v. United States, 281 F. 2d 132 (C.A. 8), certiorari denied, 364 U.S. 904, where the court found probable cause for an arrest in statements by relatives of thieves that stolen property had been sold to the defendant. Indeed, the court below in Rodgers v. United States, 267 F. 2d 79 (C.A. 9),[5] ​found that information given by a person under arrest constituted probable cause when viewed in relation to the fact that the defendant was found at the place where the informer had said she would be and where her husband had denied that she was. See also People v. Howard, 173 Cal. App. 2d 787, where information given by a group passing forged checks was held to be sufficiently corroborated by the defendant's attempted flight in slamming a door in an officer's face.

Whether or not it would itself constitute probable cause for an arrest, the information given by Hom Way to the agent was entitled to be given considerable weight. It had sufficient earmarks of credibility to justify, indeed to require, investigation. The agents would have been derelict in their duty had they failed to pursue the matter further. And when, in the course of their inquiry, other events (discussed below, pp. 28–33) occurred which gave support to Hom Way's information, the agents had probable cause to arrest petitioner Toy.

2. The actions of Toy, when he learned that the man at his door was a federal narcotics agent, were sufficient corroboration of the prior information to constitute probable cause for Toy's arrest.

The officers did not proceed to arrest Toy simply upon the basis of Hom Way's designation of Toy as the supplier of narcotics. Rather, the agents proceeded immediately to investigate by interviewing Toy. They did not go to the door in a group, as would have been the case had an arrest been intended. One of the officers remained as far away as half a block ​(R. 35). The other officers were available if an arrest should become necessary or if a search were voluntarily permitted by Toy, but only one officer went to the door.

The hour was early, 6:30 a.m., but it was daylight, not darkness. The fact that it was no longer dark at this time of year is of more significance than the exact hour. For example, while a search warrant must be served in "the daytime" if the affidavits are not positive as to the location of the property (Rule 41(c), F.R. Crim. P.), the test is not the time of rising or setting of the sun but whether there is light; dawn or twilight suffices. Moore v. United States, 57 F. 2d 840, 843 (C.A. 5); United States v. Liebrick, 55 F. 2d 341, 343 (M.D. Pa.); Albright v. Baltimore & O.R. Co., 22 F. 2d 832 (E.D. N.Y.). Nor is 6:30 a.m. so unreasonably early as to be compared to pulling a man out in the small hours after midnight. This was a laundry which was due to open at 8, or possibly 8:30, o'clock (see R. 51, cf. R. 38), and a community in which many businesses open at 8 o'clock. In judging the reasonableness of the officer's action it is also necessary to bear in mind that, in dealing with as easily concealable and as valuable a contraband as heroin, delay in the investigation could have serious consequences. Word of Hom Way's arrest or even of his disappearance from his ordinary haunts could travel quickly and lead to the hiding or destruction of the narcotics.

The officer knocked, and when Toy opened the door he began by asking for laundry. Had the officer contemplated immediate arrest, he would have indulged ​in no such conversation; with the door open, he could have seized Toy. Instead, when Toy terminated the opportunity for further conversation by telling the agent to return for his laundry later, the agent merely disclosed his official capacity, obviously to continue the interview. He showed his badge and stated, "I am a federal narcotics agent." He said nothing about an arrest. This is undisputed in the officer's testimony and that of Toy himself (R. 51-53; 38, 39, 45-47). Contrary statements in the arguments of counsel in the district court are not supported by the record.

There then occurred the action by Toy that forced upon the officer a split-second decision and supported the arrest as immediately necessary and lawful. Toy slammed the door shut and fled toward the rear of the laundry (the officer could see the flight through the glass in the door). If Toy had narcotics on the premises he could conceal or destroy them in an instant. See Mattus v. United States, 11 F. 2d 503, 504 (C.A. 9); United States v. Kancso, 252 F. 2d 220, 222 (C.A. 2). He could also escape. In sum, Toy's action in fleeing, combined with Hom Way's accusation, constituted probable cause for the arrest of Toy at that moment. Toy's slamming of the door was no flight from a supposed robber. Toy made no claim of any such fear.[6] The admitted circumstances ​afford no explanation of the flight to the rear other than guilt. There was only a single agent, standing in daylight at the door of a laundry on a public street, with no weapons, and who had made no attempt to enter. The door was not slammed when the man at the door inquired for laundry; it was slammed when the officer's badge was exhibited.

In these circumstances, the officer surely had cause to believe Toy guilty; unexplained flight from an officer is strong indication of guilt. Husty v. United States, 282 U.S. 694, 701; Brinegar v. United States, 338 U.S. 160, 166, fn. 7; Wrightson v. United States, 236 F. 2d 672, 673 (C.A.D.C.); Jones v. United States, 131 F. 2d 539, 541 (C.A. 10); Levine v. United States, 138 F. 2d 627, 629 (C.A. 2); United States v. Heitner, 149 F. 2d 105, 107 (C.A. 2); People v. Martin, 46 Cal. 2d 106, 108; People v. Maddox, 46 Cal. 2d 301, 303; Allen v. McCoy, 135 Cal. App. 500, 507; People v. Dewson, 150 Cal. App. 2d 119, 129; 2 Wigmore, Evidence (3d ed., 1940), sec. 276. As stated in Green v. United States, 259 F. 2d 180, 182 (C.A.D.C.), certiorari denied, 359 U.S. 917:

The appellant, then, made his own decision [of flight], not because of threatened assault, for he proved none. His effort to escape impelled his attempted illegal course * * * before the very eyes of the officers. The arrest was proper.

​Or, as stated in People v. Howard, 173 Cal. App. 2d 787, 791, where the information had come from theretofore unknown members of a check-passing group:

[T]he act of the man in slamming and locking the door indicated that the man was fleeing from and attempting to prevent the officer from apprehending him. The information which the officer had received and the conduct of the appellant in the presence of the officer constituted probable cause to arrest appellant. * * *

And see Henry v. United States, 361 U.S. 98, 103, distinguishing its facts from a case of "fleeing men or men acting furtively".[7]

The composite of elements here is as persuasive of guilt, we believe, as the circumstances in numerous decisions that have established probable cause upon corroboration of prior information by factors less ​persuasive than flight. In some cases, greater or less strength was to be found in the source of the information, and in others greater or less strength was to be found in the observations of the officers. In all the cases, of course, alternative innocent explanations of what was observed could have been hypothesized, e.g., the surreptitious handing over of an envelope could, of course, be innocent. But the mere possibility of an innocent explanation for what was observed is not the test of probable cause; innocence can be conjectured or devised for virtually any act or movement. The test is a prudent evaluation of the totality of elements. See supra, pp. 20–23. We submit that the combination of circumstances here adds up to sufficient probable cause for arrest. See, e.g., Draper v. United States, 358 U.S. 307; Agnello v. United States, 269 U.S. 20, 28, 31; Rodgers v. United States, 267 F. 2d 79 (C.A. 9); Christensen v. United States, 259 F. 2d 192 (C.A. D.C.); United States v. Garnes, 258 F. 2d 530 (C.A. 2); Shepherd v. United States, 244 F. 2d 750 (C.A. D.C.), reversed on other grounds sub nom. Miller v. United States, 357 U.S. 301; United States v. Naples, 192 F. Supp. 23 (D. D.C.), pending on appeal, C.A. D.C., No. 16436.

3. The arrest of Toy was not rendered unlawful by the absence of affirmative evidence that the officer(sic)s(sic) stated his purpose to arrest him.

Petitioners contend (Pet. Br. 9) that the absence of affirmative evidence that the officer stated his purpose to arrest Toy brought the case within the prohibition of Miller v. United States, 357 U.S. 301. ​The language of the Miller opinion itself answers this contention. This Court there noted decisions "holding that justification for noncompliance [with the requirement of statement of purpose] exists in exigent circumstances, as, for example, when the officers may in good faith believe * * * that the person to be arrested is fleeing or attempting to destroy evidence. People v. Maddox, 46 Cal. 2d 301, 294 P. 2d 6." The Court then stated that whether the rule admits of such exception "is not a question we are called upon to decide in this case" (id., 309), and continued (357 U.S. at 310), "It may be that, without an express announcement of purpose, the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture. Cf. People v. Martin, 45 Cal. 2d 755, 290 P. 2d 855; Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 798, 802 (1924)."

The facts in Miller were very different from those in this case. In Miller, the police were not in uniform and the Court questioned whether the concededly low-voiced enunciation of the word "police" had been heard (357 U.S. at 311). Here, the officer showed his badge and stated, "I am a federal narcotics agent", before Toy slammed the door and ran (supra, pp. 24, 29-30). In Miller, 357 U.S. at 311:

[Miller's] reaction upon opening the door could only have created doubt in the officers' minds that he knew they were police intent on arresting him * * * [A]gent Wilson testified that "he wanted to know what we were doing ​there." This query, which went unanswered, is on its face inconsistent with knowledge. * * *

Here, there was no such query by Toy—he slammed the door and ran as soon as he knew he was confronted by a narcotic agent, without giving the. agent an attempt to explain his purpose.

This case is governed, not by Miller, but by the authorities referred to in Miller as the basis for a possible exception. The forcing of entry here was necessary and lawful. In People v. Maddox, 46 Cal. 2d 301, referred to in Miller (supra, p. 34), the court said (p. 306):

[S]ince the demand and explanation requirements of section 844 are a codification of the common law, they may reasonably be interpreted as limited by the common law rules that compliance is not required if the officer's peril would have been increased or the arrest frustrated had he demanded entrance and stated his purpose. (Read v. Case, 4 Conn. 166, 170 [10 Am. Dec. 110]; see Rest., Torts, § 206, com. d.). Without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide these questions in the first instance. When, as in this case, he has reasonable grounds to believe a felony is being committed and hears retreating footsteps, the conclusion that * * * the felon would escape if he demanded entrance and explained his purpose, is not unreasonable. * * * [Emphasis added.]

It was not until Toy's flight that the officer undertook to arrest Toy, and Toy's flight prevented the officer's advising him in specific words that he was to be ​arrested. The officer was acting lawfully in pursuing Toy in order that the arrest would not be frustrated.[8]

C. Probable Cause for The Arrest of Petitioner Wong Sun was Furnished by The Combined, Consistent Statements of Yee and Petitioner Toy

1. Petitioners suggest (Pet. Supp. Br. 14) that the arrest of Wong Sun was unlawful because the officers relied upon narcotics obtained from and statements made by Yee at the time of Yee's arrest, claiming that the arrest of Yee was itself unlawful. The point has no merit.

No question was raised at the trial as to the lawfulness of the arrest of Yee per se and it is too late to raise one now. Nor is there any question as to the way in which the officers obtained the narcotics from Yee. Petitioners' suggestion that the agent's testimony that Yee "surrendered" the narcotics is "conclusionary" (Supp. Br. 14) is refuted by the record. On cross-examination, Agent Nickoloff was asked, "And you made a search of his premises, Johnny Yee's home or premises?". The officer replied, "No, I didn't actually make a search. He surrendered the ​narcotics" (R. 66). This shows that the officer was distinguishing between a search and voluntary delivery. There is accordingly no basis in this record for a challenge to the arrest of Yee or the receipt of the narcotics.

Moreover, Yee's designation of Wong Sun as one of the suppliers of narcotics (the other being Toy) was not made at the time the officers were in Yee's home, but later, in the office of the Bureau of Narcotics. As we discuss generally infra, this voluntary statement, made after a period for reflection, represents an intervening independent act of volition which would not be tainted even if Yee's arrest were illegal. Yee's statement was accordingly a factor on which the officers could properly rely as one of the circumstances giving them probable cause to arrest Wong Sun.

2. It is without significance that the record does not show any prior acquaintance of the officers with Yee. His accusation of "Sea Dog" and Toy as the suppliers of the narcotics was significantly corroborated before the officers arrested Wong Sun on the morning of June 4. First, of course, Yee was not speaking without corroboration—his statement that he had been furnished heroin was substantiated by his actual possession. His statement that Toy had been one of the two who furnished the heroin was substantiated by Toy's similarly detailed knowledge of Yee's possession of the narcotics, as revealed in Toy's earlier statement to the officers. Yee's tie-in of "Sea ​Dog" with Toy dove-tailed immediately thereafter with Toy's knowledge of the real name of "Sea Dog" (Wong Sun) and Toy's knowledge of where the latter lived. Further, the federal narcotics agent's familiar greeting to Wong Sun's wife by first name, before arresting him (supra, p. 6), warrants the inference that Wong Sun, who had a prior conviction for a narcotics offense, was known to the officer. The likelihood of recidivism in narcotics offenses is strong Rodgers v. United States, 267 F. 2d 79, 87 (C.A. 9); Reyes v. United States, 258 F. 2d 774, 785 (C.A. 9). This element was, at the least, a further factor properly to be taken into account in the judgment of the officers that Wong Sun was probably guilty of a narcotics offense, as asserted by Yee earlier that morning.

In short, both Toy and Wong Sun were arrested upon reasonable grounds for belief by the officers that the two had committed a narcotics offense. If the arrests were lawful, the judgment of the court of appeals below can properly be sustained upon that basis, without more. However, since the court of appeals upheld the convictions on the ground that they rested, not upon evidence seized in the arrests, but upon the actual finding of the heroin in Yee's house, and the voluntary statements and confessions of petitioners and Yee, we proceed now to discuss the validity of the judgment below upon that basis.

  1. ↑ Naples, a homicide case, involved information given by the defendant's brother.
  2. ↑ People v. Witt, 159 Cal. App. 2d 492, cited by petitioners (Pet. Br. 9), while stating, without citing authority, that one Cibrian could not be considered to be a "reliable informant" because he had not theretofore given the police information, reversed this conclusion in the actual holding of the case. Cibrian's statement that a certain car contained "hot stuff" and guns was deemed sufficient to justify the action of the officers in approaching the car with drawn guns, ordering defendant and another man out of the car, and searching the car for weapons. This search disclosed the stolen articles and guns upon which the defendant was later convicted of burglary. The court assumed that the arrest was made only after the findings in the car, but the court obviously thought the information given by Cibrian justified further investigation.
  3. ↑ Anonymous or virtually unknown informers were involved in many of the cases where reliance on an informant was held not to constitute probable cause. Worthington v. United States, 166 F. 2d 557 (C.A. 6), involved an unknown voice on the telephone, and Contee v. United States, 215 F. 2d 324 (C.A.D.C.), cited by petitioners (Pet. Br. 8), a tip from a man whose name was unknown. Similarly, in Wrightson v. United States, 222 F. 2d 556 (C.A.D.C.), cited by petitioners (Pet. Br. 8), the record disclosed no identified informer but only an "anonymous" tip (Id., 557); when further information was developed on retrial, the court found that there was probable cause for the arrest. 236 F. 2d 672, 673 (C.A.D.C.). See also People v. Goodoo, 147 Cal. App. 2d 7; People v. Thymiakas, 140 Cal. App. 2d 940, 941. In People v. Walker, 165 Cal App. 2d 462, 465, cited by petitioners (Pet. Br. 8), the court referred to the asserted absence of any previous use of the particular informants as such, "or other evidence" to establish their reliability, but then found the "other evidence" of reliability in the corroboration of the informants' correct statement of the name assumed by defendant and of defendant's then whereabouts at a hotel (Id., 465); the combination of this with observations by the officers was held to sustain the arrest.
  4. ↑ On the other hand, in some of the cases, information given by informers was held insufficient because it was stale or because it was not specific. E.g., in Cervantes v. United States, 263 F. 2d 800, 804–805 (C.A. 9), cited by petitioners (Pet. Br. 9), the court did not reach the question whether a sufficient showing was made as to the "trustworthiness" of the informant—since the informant's information related to incidents 6 to 10 weeks before the arrest. In People v. Dewson, 150 Cal. App. 2d 119, cited by petitioners (Pet. Br. 9), the objection to the information was not to the absence of past experience with the informer (he had three times provided valid information), but with the lack of specificity—such information would cause arrest of "any Negro anywhere in San Francisco driving a [1953 Oldsmobile '98' convertible with a black top and light body]" (Id., 123, 129). The court sustained the arrest, however, upon the additional element of flight.
  5. ↑ This decision was cited in the opinion below for the requirement that the person furnishing information be "reliable", but nothing in Rodgers bases "reliability" exclusively upon past furnishing of information. To the contrary, in Rodgers the addict who accused the defendant had theretofore had no contact with the agents (id., 83).
  6. ↑ He testified, instead, that he had closed the door and gone to the rear of the laundry, admittedly taking "big steps" (supra, p. 4), and that the officers had thereafter suddenly crashed through the door. We disagree with petitioners' statement (Pet. Br. 4) that "Toy testified he then" locked the front door and "as he started toward his living quarters" the agents, about seven in number, "broke in and pursued him * * *." This was only one of three versions Toy told, another being, "as I tried to close the door," the agent forced the door (R. 38), and the third being that he heard the crash when he "had gone back to [his] bedroom" (R. 47).
  7. ↑ Miller v. United States, 357 U.S. 301, cited by petitioners to the effect that slamming a door and running did not justify entry (Pet. Br. 9), is inapposite, upon the facts stated in Miller—there, this Court questioned whether the running was from police, since it was doubted whether the concededly low-voiced enunciation of the word "police" had been heard. There was not, as here, an exhibiting of the official badge, and the officers were not in such uniform as would dispense with the need to show a badge (357 U.S. at 311). United States v. Castle, 138 F. Supp. 436 (D.D.C.), also cited by petitioners (Pet. Br. 9), did not involve flight. Gascon v. Superior Court, 169 Cal. App. 2d 356, did not embody prior events, as here, to give significance to the flight. Badillo v. Superior Court, 46 Cal. 2d 269, similarly lacked a background of prior events, as the prosecution there was still relying on the California non-exclusionary rule as to evidence (see pp. 272–273). People v. O'Neill, 10 Cal. Rptr. 114 (Dist. Ct. of App., Cal.), involved an admission by the officer that he had no information as to the reliability of his informant (p. 116), and the circumstances provided a possible innocent basis for the closing of the door.
  8. ↑ Toy testified that the officer pursuing him into the rear of the laundry ran across the bed in which Toy's wife and child were sleeping. Presumably this was intended to suggest misconduct in the manner of making the arrest, although the point was not articulated in argument. The officer testified that Toy had himself run across the bed to a nightstand into which he reached, and the officer, fearing a gun in the drawer, followed, drew his own gun, and handcuffed Toy. Petitioners offered the testimony of Toy's wife only "as to the condition of the door before and after the entry" (R. 48), and attempted no further development of the suggested misconduct beyond this tangential reflection on the officers.
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