*1 properly emphasized quite judge trial between essential distinction manslaughter presence is the
murder of malice.14 or absence given consideration extensive haveWe efforts of the earnest view to this case appointed We court. of counsel fairly and the case are satisfied certainly tried, free from 52(b). plain error under Rule stand. The conviction Affirmed. Petitioner, KWAI,
YAM SANG & NATURALIZATION IMMIGRATION SERVICE, Respondent. No. 21784. Appeals States Court District Columbia Circuit. Argued Oct. 1968. Decided Feb. Judge, Wright, Skelly dis- J. Circuit sented. Fryer States, supra
14. Bee v. United note 5. *2 Wasserman,
Mr. Jack Washington, D. C., petitioner. Gordon, Mr. Counsel, Charles General Service, & Naturalization
the bar of the Court of the States, pro vice, by United special hac court, leave of with whom David Messrs. Bress, Atty., Q. G. U. S. and Frank Ne- beker, Atty., Asst. U. S. brief, respondent. Before McGowan Weight, Tamm, Judges. Circuit
TAMM, Judge. Circuit p. At evening about m. 6:00 12, 1967, petitioner’s place October business was surrounded officers respondent with of inter- rogating any aliens therein. Certain of-
ficers were stationed at both the entrance petition- and the exit. None knew of the identity existence er’s nor patrons entering. One officer, Podrasky, Officer entered the restaurant and confronted the questions concerning peti- with certain tioner’s be in the United States. language difficulty peti- Because of (being solely tioner able to converse dialect) Chinese—Foochow sent September interperter. It should United States friend to act City. “friend,” affidavit was read Mr. New York This Mr. Kwai’s noted that Young. friend, China-born, Mr. Lang Young, is a having p. Mr. was served At m. Kwai resided 8:00 citizen States *3 although Young, show order to warrant of arrest and an a since 1941. Mr. deported. A why interpreter, professional cause hearing should not be certified he not a eighth grade on held on edu- was October received an that he had charged quali- to which a the order show cause that he was cation China and having petitioner entered interpreter di- fied of Chinese—Foochow Pennsyl- Philadelphia, at at United States alect. From the moment of his arrival September 20, 1966, he present that restaurant, on and he vania was his friend’s throughout on the basis proceedings here at was all deported hearing previously he and up to, including, that had been issue and Inquiry permission Special not received Officer. had before the Young, peti- Attorney waiting to re-enter. for Mr. General While prepar- tioner went about his business ing petitioner hearing repre- At the was managing carryout his food and by experienced counsel. motion sented A shop. peti- the friend arrived the When suppress petitioner’s was made to affida- produced and tioner certain documents Special Inquiry vit and denied Podrasky. gave document them One Petitioner, upon of coun- Officer. advice other, supervision, the an order of was sel, Evidence elected to remain mute. super- of arrest. The order of warrant showing presented was that (which appears that vision 1965, previously deported in had been holding friend) was was sought entry Philadelphia on that he at Yung Ing The warrant name of Wa. denied, September 1966, and and was 20\ Sang Kwai, arrest, in of Yam the name that he re-entered the United States in Au- been issued indicated that it had City September 26, New York on gust, 1965, Director the District permission. of the At the close yet had not the New York District but Officer, Inquiry pri- Special evidence the However, copy of this been executed. suggested order, issuing to the Service’s warrant was attached government move to the order amend jacket war- it reveals that the case proof. with the to show conform cause 17, 1965. rant was executed November he was noted that Counsel conflicted as to In that documents regard. adjournment in this entitled to an and, Po- thereon named adjournment offered but waived An drasky re- not which document did know by counsel, objection the amendment required the petitioner, he ferred to the petitioner special inquiry being of- “The retained. and ac- to close his restaurant * * [petitioner] ficer shall advise he company Here was to his office. * * * time within that he have rights Miranda advised *** which to meet the additional allegations. Arizona, [petitioner] re- shall be upon sworn and was L.Ed.2d 694 quired there then and to state pres- he related which affidavit ”* a continuance. desires alien; wit, ent as an status supplied.) 242.16 (Emphasis 8 C.F.R. § Foochow, May 5, born on was China; (d) (1968). to amend was motion China; he had he is a citizen deporta- granted. made The order previously from the been tion entered. 1965; he had November on States reapplied after for admission not ruling petitioner appealed granted date; permission he was Immigration Appeals the Board States; that he re-enter the United ap- they March-19,1968, dismissed the United attempted re-enter grounds had peal there September Philadelphia, to make waiver of written notice show cause amendment to the order to entry, entered 1966—refused adjournment since had waived counsel he is “seized.” To hold otherwise would regard; that, give parte based the con- be to substance to an ex peti- concept disregard. flicts in the two documents which —a we must At no given Podrasky, prior tioner the officers time, entering restaurant, had justified arresting petitioner at does the record indicate warrant; and patrons the restaurant without a of the restaurant was aware of suppress petitioner’s transpiring that the motion to what was out- the street might denied. This affidavit was side. The fact peal stopped they attempted followed. We affirm. been had to leave us. The appeal is The central on this “[o]nly officer, by said that when the whether petitioner there was a valid arrest *4 physical means of force or show of au- the In deter- at restaurant. thority, way has some restrained the mining point that issue there is one liberty may of a citizen we [or alien] dispute; over which there can be no that a conclude that ‘seizure’ has occurred. is, prior confronting petitioner that to ”* * * (Brackets supplied.) Terry v. in the restaurant was no there Ohio, supra, n. 88 S.Ct. at (under applicable cause plied standards as Suppose, example, word of that a respond- to the under which statute gambling operation po- a is received act) anyone. ent must we Since lice officer and, with the of his fel- aid that a hold there was arrest at the valid lows, he and closes off both the entrances restaurant, transpired prior what to en- building housing opera- exits to that the tering becomes critical. argued, petitioner tion—can it be the as argues here, activity petitioner’s that It is the should that be contention courthouse, very in the that basement of this his initial arrest effected the was herein, judiciary, time each the member of restaurant was surrounded and the liberty very his is under Yet the movement We arrest? this is constrained. point agree. petitioner quite plain cannot He “It is seeks make. urges governs that, prior any personal Fourth Amendment ‘seizures’ of confron- person any personal tation which do not eventuate in a absent aware- trip part prosecution to the ness on respondent’s station house of the existence of the * * recognized officials, It crime *. must under be was ar- police rest. If perhaps that whenever this a be true then as officer accosts reading opinion one quiet sits individual and freedom restrains his away, unknowingly of his person to walk office he has ‘seized’ be that un- * * der arrest. Such a contention is both L.Ed.2d 889 chilling implication in its and absurd in Thus the application. disregard its We therefore verbally circumscribed outer limits it. of “seizure” under the fourth amendment accosting to mean an of an individual Petitioner next contends that liberty depart. probable and a restraint of cause to arrest did not exist We take production this to mean even “seizure” after the a of the conflict ing general; must be personal, agree. “Any documents. We cannot ** * ** * must contain the element of on officer awareness of the Service * * part protagonist power of both the shall have without warrant antagonist; interrogate any and it must restrain lib- alien or be erty of the right individual to the extent that lieved to be an alien to to arrest, he is not free leave. An under to remain in the United States amendment, 1357(a) fourth cannot be effected (1) U.S.C. § This knowledge statute, plain in a vacuum. There face, gives must be on its the offi- po- of the respondent situation on behalf of both cers of the authority suspect. interrogate lice There no can be alien as to his seizure where the is unaware be in the nothing United States. It does prob- interroga- make We find an arrest. authorize more. It does not receipt concerning existed mat- able cause criminal of the alien tion ters, finding precludes This the documents. it condone harassment. nor does suppression issues entering Podrasky, upon the car- a discussion Officer ryout, by Podrasky evidence secured petitioner, Yam confronted foreign to a was incident arrest. Kwai, obviously person of lawful Sang concerning his descent, questions the issue turn We then Due to States. to be in the United affidavit petitioner language sent barrier contention admitted. It and, interpreter friend to act as an petitioner inter that since the waiting him, proceeded about while by legal “qualified” preter stand by Podrasky. unimpaired his business Miranda, rights ards, his waiver no at this can There agree. cannot Mr. was ineffective. We point respondent’s officer “rea- acted Yqung petitioner was a friend statutory light sonably” author- of his He had been resi acted in his behalf. ity dictates. fourth amendment He since 1941. dent in the United States Podrasky interpreter arrived When the certified he had read affidavit again inquired petitioner’s status. to the and that produced reply, the con- In flicting *5 him that the statements and understood point At this Po- documents. correct, and made therein true and had,” drasky who [he] “didn’t know present inquiry. At no at the was furnishing [petitioner] [Po- “because of alleged petitioner the ever time has pieces paper, drasky] of with these two Pe he did not understand his affidavit. thought likely to [Podrasky] he was McGrath, 108 F. titioner cites v. Nieto Podrasky (Tr. 11). re- then abscond” 1951); Supp. (S.D.Texas Ponce v. accompany quested petitioner to the (S.D.Cal.1950) McGrath, F.Supp. 23 Again respondent’s offi- to his offices. F.Supp. Adcock, and Handlovits authority statutory within cer acted (E.D.Mich.1948) posi support of his any “to for he is enabled reading uncovers A of these cases tion. States, has reason in the United if he fact, there of not of law and differences to believe that the alien so arrested is applicable hold fore here. We are not * in the in violation of United States a counsel and there was valid waiver of ** likely escape law is be- properly ad affidavit was ** fore a warrant can be obtained mitted. 1357(a) (2) (1964). apt An 8 U.S.C. § present analogy to the issue would be argument consider the We patrolman stops a where a a vehicle petitioner of that the order to show cause conflicting violation, traffic receives doc- improperly cannot amended. We identity of driver uments as to agree. Special proceeding before the thereby given probable cause Inquiry essentially civil na Officer believing driver has no rigid ture. It does not for take on inbe have the that vehicle. We same malities a criminal trial. The order production situation here. of these to show evidence cause is not substantive to Po- documents and the facts available drasky certainly safeguard procedural a but with which would “warrant man charges is notified of reasonable caution in the belief”1 against him in order defend in the United allegations. Here was the illegally likely he was States qualified person, best to know when he abscond. The arrest at the restaurant re-entered the United and what States of the re- was valid. Our construction prior history before the Service had way spondent’s Inquiry in no vitiates Special activities The action of the been. procedural legal necessity “probable error cause” Officer was to correct L.Ed. 543 Carroll abridge status, respond attempt to said he would and not an substan- adjournment rights. completed soon tive An was of- as he some chore in the regard kitchen, but run out fered to trial counsel this then had back retaining every per- appearance token door with of man was waived—counsel objection. part manently retiring no error restaurant We see business, Special Inquiry question- in this re- Officer seems clear that the gard. ing investigator, enough to catch if fleet up him, either a would have had case, argument peti- Since oral adequate suspicion reasonable to detain supplemental tioner filed certain questioning perhaps him for further nothing We find contained memoranda. being even to arrest for cause persuasive therein issues. illegally. The mere fact that petitioner’s position It rely questioning investigator does not Immigration Appeals Board ability on his own with this deal con- agree. reversed. cannot We tingency, brings along but instead col- Affirmed. leagues stay provide help who outside needed,
if
does not without more make
approach
Judge (concurring
McGOWAN,
inside the
an un-
Circuit
restaurant
appellant’s person
result):
reasonable seizure of
meaning
within the
the Fourth
hereinafter,
For the reasons stated
Amendment, at
where
least
as here there
join
deporta-
leaving
in the result of
is no indication from the
record
tion order undisturbed.
pellant
presence
even knew of the
of offi-
dragnet
The evils
detention for
cers outside.
investigation
law enforce-
area of
always
legitimate
ju-
actually
ment are
area
happened
of what
terms
dicial concern. But that concern
only
restaurant,
side the
the record shows
*6
pursued
more
instance
at the
appellant
supply
was asked to
infor-
clearly
of one who has
been detained
status,
mation about
his
against
appellant
his will.
In this case
manner,
response
completely
of
co-
unsuccessfully try
did
to leave the
not
operative.
waiting for
While
his inter-
premises.
appear
appel-
it
Nor does
preter-friend
arrive, appellant
to
was al-
unwilling object
lant was the
of a forced
go
freely
lowed
business,
to
about his
in-
questioning.
submission to
He did not
cluding unsupervised trips to the kitchen.
testify
was,
he
either
reference
established,
When communication
representations
to the
or conduct of the
promptly produced
which,
documents
investigator who
restau-
came into his
least, justified detaining
him for fur-
rant, or otherwise.
inquiry.
unprepared
say
ther
I am
to
that,
record,
on
presence,
this
the mere
argues that,
The dissent
because
investigators
appellant,
unknown to
of
presence
investigators
of
res-
outside
outside the restaurant effected forthwith
taurant, appellant was in fact
an
such
an
person.
unreasonable
of
seizure
unwilling
may
although
object,
thought
to
at the
himself
be one
Appellant
challenge
here does not
All
time.
record shows
this
questioning investigator
in the
to
inspector,
questioning
when asked approach
although
place,
him in the first
leave,
appellant
was free to
said the statute is in terms limited to the
“I don’t know.” For me there is less
“any
person
of
alien or
ambiguity in
answer
this
than meets the
believed to be an alien.” This limitation
eye,
because
must be true that
obviously
problems
could
for
raise
response
manner of
to a
to an
dragnet detention. Moreover, the “rou-
alien about his status can determine
tine search” characterization used
whether he
be detained.
certainly
Government could
stand some
appellant
had,
response
If
here
involving
to
persons
ventilation in a case
request
the first
clearly
for
impact. Also,
information about who have
felt its
petitioner’s
emerged,
of
of
fruit
an
seizure
there has
the view that
share
I
person, I
order aside.
would set the
criminal
familiar
the field of
at least
acts,
important
dis-
discernible
tinction between
for inter-
temporary
cause,
detention
operated a res-
Petitioner owned and
concepts
particular
rogation,
with both
On
in the
of Columbia.
taurant
District
assay
being subject
applications
to
evening
in-
of
four
October
Fourth Amendment.
vestigators
Nat-
went to
uralization Service
say,
position
ba-
to
not in
I am
carry
to
what
restaurant
order
out
me, that the
record tells
of
sis what
opera-
described as a “routine search
authority
Congressional grant
investigators were
tion.” Two of the
terrogate
their status
aliens about
door,
stationed at the rear
one at the
reasonable
limited to
be construed as
door,
front
and the fourth entered
believing
suspicion
front door. No
to the streets re-
exits
country.
illegally
approached
unguarded.
mained
know,
may,
eases
all I
There
investigator
illegal entry
attempted
au-
The fourth
enforcement
where the
language
way
proceeding
question petitioner,
ef-
diffi-
no
but
thorities have
inquiry
culty apparently
fectively except by
im-
the direct
made communication
reasonably appear
possible.
proach
friend
who
Petitioner then sent
those
intepreter.
investigator
issues
to act
The constitutional
to be aliens.
asserts,
waited,
involve,
the balanc-
while
continued to
as the dissent
privacy
ing
the needs
with
work in the
the investi-
of interests
kitchen. After
gator spoke
through
record has
This
enforcement.
law
appropriate
interpreter, petitioner produced
one
me an
two doc-
seemed
un-
accomplishment
this delicate
uments.
One was
unexecuted warrant
only ap-
dertaking, especially
petitioner,
for the
when
inquiry
analogies
(a
parent
supervision
are those
other
doc-
was an order
applicable
depor-
to com-
man is about
ument
tation)
one
whether a
see
Yung
burglary,
Ing
mit
name
Wa.
(1968), or
point
investigator
pe
At this
asked
get
plumbing
allowed
accompany
titioner
office,
him to
I&NS
Municipal
disrepair,
state of
Camara
and told him close his restau
*7
1727, 18
Court,
S.Ct.
U.S.
87
387
night.
for the
rant
Petitioner went to
(1967).
930
L.Ed.2d
receiving
where,
the office
after
a ver
Miranda, warnings,2
sion
he admit
pre
Judge
alien,
ted that he was
he had
WRIGHT, Circuit
J. SKELLY
viously
deported
been
from the United
(dissenting) :
States, and
he
re-entered the
had
been ordered
Petitioner has
country by jumping ship,
previ
without
Hong
of that
Kong,
review
and
seeks
ously applying for admission into the
provisions
appropriate
order under the
United
On the
of the docu
States.
basis
Nationality
Immigration
Act.1
and
supplied
restaurant,
ments
to them at the
finding of de-
my
in
view
investigators
petitioner’s
Because
obtained
part upon the
portability
based
file,
I&NS
which contained the executed
(1964).
(Rev.
(1967
Procedure
eel.)
1. 8 U.S.C.
1105a
§
5.2b
Cum.
§
Supp.);
Respondent
Memorandum for
adopted
standards
has
2. The I&NS
Opposition
Granting
Petition for Writ
Arizona,
of Miranda
Pang
(1966),
of Certiorari
Immi
Ah Chiu
in in-
L.Ed.2d 694
custody
gration
Cir.,
Service,
persons
terrogating
dur-
and Naturalization
held
stage
investigative
denied,
ing
found
ticular
a reasonable
plying
suspicion
person
the standards established
Ter-
detained
ille-
gally
ry,
country.
in-
found that this limited
Court
no such
Since
by
ground
justified
case,
trusion
not
facts
I
was
was shown in
believe
illegally
at the
known to the officer
time.
detained in
was
during
interrogation.
his restaurant
general
employed by
standards
are, believe,
inculpatory
Court to decide
these cases
Petitioner’s
was
statement
emphatically
unquestionably
useful here. The
con-
the fruit of the interro-
gation
upon constitutionally
demned “intrusions
at the
restaurant.
interro-
rights
guaranteed
nothing
gation
documents,
more
based on
elicited the two
which
investigator
than
substantial
inarticulate hunches.”
turn led the I&NS
Ohio, supra,
office,
v.