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off a ship and had something in the locker room which might help to identify him. He walked Au to the locker room and left him with Burns and Lamoreaux, telling them that Au appeared to be a crewman, that he had tried to run, and that he might have something in the locker. Taylor returned to the kitchen to continue questioning the other employees (pp. R-70-R-74, R-77-R-79, R-81-R-82).
DeLucian, the kitchen supervisor, testified that when the investigators entered, he turned his back on them thinking they were part of the management staff, that suddenly he saw employees taken out to the locker room through the rear exit, that the investigator had come through the rear door, and that he had not been approached for permission to question the employees. He testified that he made himself understood to the respondents in broken English. Park had testified that respondents could speak no English: he made himself understood by writing Chinese characters.
The one illegal alien, known by name, who the Service thought was working in the restaurant, was not found and is still the object of search (pp. R-51-R-52).
The investigators took the three respondents to the office of the Immigration Service. There, friends came to visit them (pp. 27, R-10). Fingerprints were taken (p. 12). Translators were obtained and statements taken: Kelley took Yim's (Ex. 2), Lamoreaux took Lam's (Ex. 2), Burns took Au's (Ex. 4) (pp. 16–17, 25-27, R-10, R-27-R-29, R-32-R-44, R-52-R-56, R-58-R-59, R-63–R–66). At the Service office, warrants of arrest were issued and served about two hours after the aliens were located (p. 14).
An investigation at the same place subsequent to the one in question, resulted in the apprehension of other aliens illegally in the United States (p. R-67).
Deportation hearings were started on November 1, 1967. At the hearings, which were consolidated, the respondents remained mute. The Service introduced the statements made by the respondents. The investigators who took the statements and an interpreter testified as to the taking of the statements and as to their belief that they represented what the aliens had stated. As to each alien, the Service introduced a seaman identity book and a seaman discharge book (Yim, Ex. R-1; Lam, Ex. R-3; Au, Ex. R–2); and crewman landing certificates (Yim, Ex. 4; Lam, Ex. 3; Au, Ex. 2). A certificate of vaccination was also introduced for Yim. The respective identity and discharge books contain photo
graphs which the special inquiry officer found to be good likenesses of the respondents. Counsel does not believe the likenesses exist (pp. R-6-R-7, R-11, R-30).
If the evidence presented by the Service is competent, it establishes the respondents are deportable aliens. See Shing Hang Tsui V. INS, 389 F.2d 994 (7 Cir., 1968). The statements of the respondents alone establish that they are aliens illegally in the United States. Apart from the statements, the landing certificates establish alienage and the illegality of stay. The seaman's books establish identity of the respondents. There must be considered the presumption that the alien in deportation proceedings, who has failed to show the manner of his entry, is in the United States in violation of law. Au Shin Pang v. INS, 368 F.2d 637 (3 Cir., 1966) cert. denied 386 U.S. 1037.
Counsel contends the evidence presented by the Service cannot be used because it was illegally obtained since Park's testimony reveals that the investigators were not given permission to enter the premises to conduct a "search" and since the Service had no right to approach at least the alien in the kitchen. He contends the testimony of Park should be credited rather than the testimony of the investigators because Park is a disinerested witness, but it is in the interests of the investigators to show they were performing their dutues. He also contends the Service must establish that permission was granted by evidence that is clear, convincing and unequivocal. The appellate trial attorney emphasizes that Park's own testimony reveals both that he consented to the investigators talking to the employees and that he did not deny the investigator the right to go to the kitchen. The appellate trial attorney also relies upon the corroboration found in the testimony of the Service investigators.
It is undisputed that the investigators had permission to be in the restaurant. The only issue is whether they had permission to
2 The statements reveal the following: Yim, a 33-year-old native of China, admitted as a crewman on June 21, 1963, (a typographical error: 1967 was obviously meant) deserted the ship at Baltimore on July 7, 1967. Lam, a 42year-old native and citizen of China, admitted as a crewman about July 12, 1967, deserted his ship about July 15, 1967. Au, a 48-year-old native and citizen of China, after being refused permission as a crewman, deserted his ship on July 12, 1967. We have carefully examined the record as to the manner of taking of the statements. We find the statements were made by respondents with full knowledge of their constitutional rights to remain silent and to consult with attorneys, that there was no element of duress, and that the interpretation was properly made. None of the aliens testified that the statements are inaccurate in any material matter.
go to the kitchen. We believe the Service has established that Park gave the investigators permission to speak to employees of the restaurant at their jobs and that he made no exception as to the employees who were in the kitchen. The investigators who were with Park are of the belief that he granted them permission to question the employees in the kitchen. Podrasky testified that he could recall no offer to bring the aliens out of the kitchen; and that he was invited into the kitchen (p. R-51). Taylor was of the belief that Podrasky had received permission to go to the kitchen (p. R-75). Burns testified that Podrasky asked Park for permission to speak to the employees and that in response, Park led the way to the kitchen (pp. R-3-R-5). The special inquiry officer, who observed the witnesses testify, resolved the conflict in favor of the Service. We see no reason on this record for reversing his finding.
Moreover, no respondent was approached in the kitchen. Two respondents, Yim and Lam, were approached in the restaurantno issue is raised about Park granting the Service permission to talk to the employees there. Au was approached in the public hallway of the hotel where permission to enter, if it was needed, was obtained when the hotel employee stationed at the door permitted the Service investigators to enter with knowledge of their employment. (See Peters v. New York, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, hallway in apartment house a public place.)
While we have considered the question of permission—and we believe that Service employees should ask for permission as a matter of practice—the fact is that law enforcement officers are not required to obtain permission to enter a public place, like a restaurant, to question people there. Amaya v. United States, 247 F.2d 947 (9 Cir., 1957) cert. denied 355 U.S. 916. See Terry v. Ohio, 392 U.S. 1, 34 (White, J., concurring); Green v. United States, 259 F.2d 180 (D.C. Cir., 1958) cert. denied 359 U.S. 917 (1959). Furthermore, the power of an immigration employee to question appears to be even broader than that possessed generally by law enforcement officers. Section 287 (a) (1) of the Act (8 U.S.C. 1357 (a) (1)) provides as follows:
Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant
(1) to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States; Under this statute, it would appear no independent evidence of alienage is needed to approach a person. If independent evidence is needed, it can be found in the reasonable suspicion that a person is an alien. A suspicion can be reasonable one if no more appears than that the person approached is in an area in which illegal aliens are found. United States v. Montez-Hernandez, 291 F. Supp. 712, 714-15 (E.D. Cal. 1968). See Abel v. United States, 362 U.S. 217 (1960); Yam Sang Kwai v. INS, No. 21,784 (D.C. Cir. February 17, 1969), petition for certiorari pending, No. 1220, October Term, 1968; Amaya v. United States, supra; Matter of Wong and Chan, Interim Decision No. 1941 (BIA, 1968); Matter of Doo, Interim Decision No. 1911 (BIA, 1968); Matter of Chen, 12 I. & N. Dec. 603 (BIA, 1968).
Considering the facts of the instant case in light of the precedents we hold that it was proper to question the respondents and it was proper to arrest them. Evidence, if any, obtained as the result of the arrest was incident to a lawful arrest and was therefore competent. We shall develop these matters further.
It was proper to question respondents. The posting of the Service investigators did not constitute an arrest. Yam Sang Kwai, supra. The experienced Service investigators had reason to believe that illegal aliens were employed in a restaurant. They entered it to question the employees. They limited their questioning to whether the person was an alien and, if so, whether he was legally in the United States. These were matters within their authority. They did no enter to secure evidence for criminal prosecution. No force was used to enter. No force was used to question the employees. There was no harassment of employee or of management. Interference with business was so limited that the kitchen supervisor thought, at first, that the investigators were part of the management. There was no search of any employee except those who attempted to flee. When the investigators saw persons, obviously of foreign descent, moving to make it impossible for them to be questioned, the investigators acted reasonably
3 Whether any evidence was obtained from the respondents at the time of the arrest at the restaurant is not clear (See p. R-27). If anything was obtained, it is not shown that it was not voluntarily produced. No respondent has alleged that anything was taken from him. Statements made by respondents after they were arrested could be used at the deportation hearing. Shing Hang Tsui, supra. Documents which the respondents apparently left on their ships and which came into the possession of the Service in some undisclosed manner and landing certificates taken from the Service files were properly introduced.
in taking steps to detain them for questioning as to their immigration status.
The respondents were properly arrested. When the investigators determined that the respondents were aliens illegally in the United States, it was reasonable to arrest them without a warrant for, clearly, they were aliens who were likely to escape before a warrant could be obtained. Section 287 (a) (2), 8 U.S.C. 1354 (a) (2); Yam Sang Kwai, supra (concurring opinion).
Since it was reasonable to arrest the respondents, evidence obtained as the result of the arrest, if any was obtained, was incident to a lawful arrest and was therefore competent.
Katz v. United States, 389 U.S. 347 (1967); Wolf v. Colorado, 338 U.S. 25 (1949) (overruled, Mapp v. Ohio, 367 U.S. 643 (1961)); Gomez v. Layton, 394 F.2d 764 (D.C. Cir., 1968) cited by counsel are inapposite. Katz concerns eavesdropping by electronic means. It did not involve the right to question a person. Wolf concerns evidence admittedly seized illegally. We find no illegality in the obtaining of evidence here. Gomez merely held that one claiming an unconstitutional deprivation of liberty of movement was entitled to a judicial hearing on his claim.
ORDER : The appeals are dismissed.
4 Counsel contends that irns had no cause arrest Au merely because of Au was progressing toward the front exit and was in an employee's uniform. Counsel believes that it was error to stop Au because if he were attempting to flee, he could have been apprehended by investigators who, counsel alleges, were stationed outside the building. Burns did not arrest Au for running away. He stopped him for questioning. He was authorized to do this. He did not arrest Au until he found that Au was illegally in the United States.