United States v. Ho Yee Bon

378 F. Supp. 582, 1974 U.S. Dist. LEXIS 7859
CourtDistrict Court, S.D. New York
DecidedJune 27, 1974
DocketNo. 73 Cr. 947
StatusPublished
Cited by1 cases

This text of 378 F. Supp. 582 (United States v. Ho Yee Bon) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ho Yee Bon, 378 F. Supp. 582, 1974 U.S. Dist. LEXIS 7859 (S.D.N.Y. 1974).

Opinion

OPINION

COOPER, District Judge.

Defendant Ho Yee Bon was indicted on October 9, 1973 on one count of unlawful possession of opium in violation of 21 U.S.C. § 844. Pursuant to Fed.R. Crim.P. 41 he moved for an order (1) suppressing the opium on the ground that it was illegally seized, and (2) suppressing certain statements made by him on the ground that he was never advised of his constitutional rights and never knowingly waived them. Defendant’s motion to suppress physical evidence was denied in our memorandum opinion of January 8, 1974. On that same date, we ordered an evidentiary hearing on the second motion to resolve certain factual issues relating thereto. On January 14, 1974 defendant moved that we reconsider our memorandum decision of January 8, and extend the scope of the evidentiary hearing to consider the issue of the physical evidence as well. On January 15 and 16 and February 26, 1974, a full evidentiary hearing was conducted into both the seizure of the physical evidence as well as the making of the oral statements. For the reasons set forth below we (1) affirm our decision of January 8, 1974, denying defendant’s motion to suppress the tangible evidence, and (2) deny defendant’s motion to suppress his oral statements on the grounds that he was given his [584]*584Miranda1 rights at the time of his arrest and that he knowingly and intelligently waived them at that time.

I. MOTION TO SUPPRESS PHYSICAL EVIDENCE

Defendant was arrested in Pennsylvania Station, New York City on July 31, 1973 by agents of the Drug Enforcement Administration (hereinafter DEA). The arrest was prompted by an anonymous telephone call received the previous day at about 1:00 or 1:30 p. m. by Agent Murphy of the DEA. The caller told Murphy that (1) on the following day (July 31, 1973) (2) a Chinese male by the name of Ho Yee Bon, (3) would be leaving from Pennsylvania Station, (4) at approximately nine o’clock in the morning, (5) bound for Chester, Pennsylvania; that (6) defendant worked at the China Garden Restaurant on West 3d Street in Chester. He described Ho Yee Bon as (7) having a G.I. haircut and wearing (8) a brown suit with (9) a white shirt. Murphy was told that defendant (10) had been arrested previously on drug charges and had spent or been sentenced to five years in jail. The caller said that Ho Yee Bon was (11) an illegal alien, but that (12) he had a “green card.” 2 Finally, the caller said that (13) Ho Yee Bon would be carrying “dope.” (Tr. 171-73)3

DEA agents then secured a photograph of Ho Yee Bon from their files, and Agent Murphy verified that there was a restaurant, the China Garden Restaurant, on West 3d Street in Chester, Pennsylvania, and that Ho Yee Bon had been arrested previously on a narcotics charge and had been sentenced to five years. (Tr. 173-74) The Immigration and Naturalization Service (INS) was contacted that night and at about 7:00 a. m. on July 31, agents from INS and DEA met in Pennsylvania Station and set up surveillance points. (Tr. 20)

INS agents first saw defendant as he was descending an escalator near the Amtrak ticket sales windows. They followed him onto the train platform and identified themselves. Defendant, who was carrying a shopping bag, was asked if he had a “green card” and he produced an order of supervision.4 The agents asked Ho Yee Bon to accompany them to a telephone booth in the waiting room, where one of the agents called his office to cheek on defendant’s immigration status and learned that a warrant of deportation had been issued in 1965 but that it could not be executed because travel documents were not obtainable. It was for this reason defendant was under an order of supervision. The INS agents then told the DEA agents that they were satisfied as to defendant’s status and were not going to detain him further. (Tr. 20-44) At this point the DEA agents approached defendant and Agent Moriarty, having identified himself, read to defendant his constitutional rights. (Tr. 49-51) Although Ho Yee Bon was not formally told that he was under arrest until sometime later, Moriarty admitted that defendant was under arrest from this point on. (Tr. 82)

Moriarty patted defendant down and examined the contents of the shopping bag but found no contraband. He then took defendant into the Pennsylvania Railroad Police office and searched more thoroughly. The shopping bag contained a plastic bag of lichee nuts in the center of which he found a small package containing a substance later determined to be approximately 7.69 grams of opium. (Tr. 53-55, 79-82)

[585]*585Defendant vigorously attacks the legality of his arrest and contends that the agents lacked probable cause to proceed as they did. His argument is essentially as follows: (1) the informant’s tip was proven false or mistaken in two material respects when the INS agents determined that defendant was lawfully in this country and not an “illegal alien” and that the defendant had an order of supervision and not a “green card(2) the informant was totally anonymous to Agent Murphy and had no record of proven reliability; (3) the informant did not state the basis, for his information; (4) at no time was defendant’s conduct in any way suggestive of criminal activity. For these reasons defendant argues that the tip was too weak to support a finding of probable cause; that his arrest, and the search incident thereto, must therefore be declared illegal.

We disagree. First, defendant is mistaken in his claim that the tip was proven false or mistaken in any material respect; in fact, these elements were fully corroborated prior to the arrest. Secondly, although the other characterizations of the tip are accurate, as conceded by the Government, nevertheless, the extraordinary detail of the tip and the fact that it was fully corroborated in each and every respect compel the conclusion that the agents had probable cause to make the arrest.

The dispute over whether the informant was right or wrong concerning defendant’s immigration status arises from a likely confusion over the meaning of the terms “illegal alien” and “green card.” A warrant of deportation is the result of a finding by an INS judge that an alien has been found deportable and has been ordered deported from the United States. (Tr. 28) Such a warrant had been issued against defendant in 1965 following his narcotics conviction. (Tr. 22-24, 28-29) Subsequent to an order of deportation, however, travel documents must be obtained for the removal of an alien from the United States. In the case of defendant, no such travel documents were obtainable because he was considered a refugee directly from Mainland China. Under these circumstances, INS issued its order of supervision. This is a temporary and revocable document permitting an alien to remain at large subject to certain conditions, among them, that he produce himself for deportation at the time and place designated, that he not travel outside the New York district for more than 48 hours without first notifying his deportation officer, and that he report in person to his deportation officer every January. (Tr. 28-29, 32-36)

Technically, a “green card” is a wallet-size green card issued to an alien by INS signifying that the holder is a lawful, permanent resident of the United States. (Tr.

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Cite This Page — Counsel Stack

Bluebook (online)
378 F. Supp. 582, 1974 U.S. Dist. LEXIS 7859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ho-yee-bon-nysd-1974.