THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as FSM v. Tipen, 1 FSM Intrm. 79 (Pon. 1982)

TRIAL DIVISION STATE OF PONAPE

FEDERATED STATES OF MICRONESIA,

vs.

HIROKI TIPEN
Defendant.

CRIMINAL CASE NO. 1981-516

OPINION GRANTING MOTION FOR SUPPRESSION
OF EVIDENCE AND DENYING MOTION TO REOPEN HEARING

Defendant's motion to suppress presents the question of whether, under Ponape State Code Chapter 3, Section 3-13, or any other legal basis, police officers having no search warrant or arrest warrant may enter a bar and search the belongings of a bar patron without his consent and without any basis for believing that the person has committed or is committing a crime.  It is the first case presented to this court which requires consideration of our constitutional provisions concerning government searches and seizure of citizens of the Federated States of Micronesia.

Because the court has determined that the search here was not authorized by the statute and violates Article IV, Section 5 of the Constitution of the Federated States of Micronesia, defendant's motion to suppress, that is, to prevent use against him of the evidence obtained in the improper search, is granted.  We also deny the government's motion to reopen the hearing.

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Factual Background

The essential facts are not in dispute.  On the evening of November 6, 1981 the defendant, Hiroki Tipen, was in the Downtown Bar in Kolonia with his friend, Klaudis Hawley. The two of them were seated at a table, drinking beer together.  A bag, or purse, which the defendant had brought with him to the bar was on the table between them.  This bag is about the size of an ordinary purse, some 7 inches in width and about 10 inches high.  It is made of a kind of synthetic leather-like opaque material.  White, with various colorful designs, it has a small rope, or drawstring, for opening and closing. The evidence indicated that at the time in question the bag was closed and the contents could not be seen without loosening the drawstring.

Suddenly, several policemen entered the bar and walked to the table at which Messrs. Tipen and Hawley were seated. Police officers grabbed and handcuffed the defendant.  Simultaneously, one officer picked up the bag, opened it and looked at its contents.  When he did this, he found certain items, the possession of which apparently gave rise to the charges here of illegal possession of a weapon and marijuana.

The Ponape Consent Statute

The government did not attempt to establish that the police officers had any reason, before they conducted their search, to think that Mr. Tipen had committed a crime or that the bag contained illegal contraband or weapons.  Instead,

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they have relied principally on Ponape State Code Chapter 3, Section 3-13 to justify the search.  That statute provides:

Any person who enters or attempts to enter any on-sale or restaurant establishment or club which sells or dispenses alcoholic beverages in open containers shall thereby consent, upon the request of the owner, proprietor, or operator of such establishment or club, or upon the request of a duly authorized employee thereof, duly appointed private policemen hired by such establishment or club, or any law enforcement officer, subject to exclusion therefrom for denial thereof, to ... [s]ubmit to a non-strip search by a person of the same sex for any dangerous weapon....

This provision does not authorize the search of a non-consenting bar or restaurant customer.  The language merely states that a person who enters or attempts to enter a bar or restaurant shall consent to a search for a dangerous weapon "upon the request" of an authorized person.  For "denial" of the request, the patron is merely "subject to exclusion" from the establishment.  The defendant was not requested to submit to a search, and did not consent to a search.  A person may not be subjected to a search to which he has not consented.

The Constitutional Provision

The police did not possess either an arrest warrant or a search warrant when they entered the bar and approached Mr. Tipen.  Neither was there any suggestion in the evidence at the suppression hearing that there existed probable cause to believe that Mr. Tipen had committed a crime when the police entered the bar, nor that he then did anything to indicate commission of a crime.  The contents of the bag were not in plain view and there was nothing distinctive

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about the bag, or Mr. Tipen's handling of it, to suggest that its contents might have been illegal or contraband.

In short, the evidence shows no provocation by Mr. Tipen or any basis for believing that he was committing a crime.  Nothing revealed to the court distinguished the defendant from any other patron of the bar or indeed from any ordinary citizen of the Federated States of Micronesia. If a search of Mr. Tipen could be allowed in the circumstances described in the court hearing, so too, presumably, could the police search any other citizen at any time.

The Constitution of the Federated States of Micronesia assures that:

The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated....

FSM Const. art. IV, § 5.  Our tasks here are to determine whether these words protect citizens against searches such as this one of Mr. Tipen and, if so, what the appropriate remedy may be.

Analysis of the constitution must start with the words of the constitutional provision.  If these words are clear and permit only one possible result, the court should go no further.  Here however, the words are not conclusive.  The Article IV, Section 5 right to be secure against searches is not absolute.  The Constitution only protects against "unreasonable" searches.  By implication, reasonable searches may be permitted.  The meanings of these terms, "unreasonable" and reasonable,"

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are not self-evident.  We must probe further to determine the full meaning of the framers in employing this constitutional language.

After careful consideration Of the words themselves, the next step is to review the Journal Of the Constitutional Convention to locate any discussion in the Constitutional Convention about the provision, and to learn what the framers had in mind when they adopted the provision.  When these steps have been completed, if doubt still remains, we should normally proceed to other sources such as interpretations of similar language in the United States Constitution, decisions of the Trust Territory High Court, generally held notions of basic justice within the international community, and consideration of the law of other specific nations, especially others within the Pacific community. Lonno v. Trust Territory, 1 FSM Intrm. 53 (Kos. 1982).

The Journal in this instance though provides unmistakable direction.  The Micronesian Constitutional Convention's Committee on Civil Rights proposed the Declaration of Rights in substantially the form subsequently incorporated within the Constitution.  Committee Proposal No. 14.  SCREP 23 (Oct. 2, 1975); II J. of Micro.  Con.  Con. 793.  The proposed language and supplemental discussions in the Committee Report reveal that in developing the Declaration of Rights for the Constitution of the Federated States of Micronesia, the Committee, and subsequently the Convention itself, were drawing almost exclusively upon constitutional principles under United States law.

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The Fourth Amendment to the United States Constitution reads as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the plate to be searched, and the persons or things to be seized.

The language proposed by the Micronesian Constitutional Convention's Committee on Civil Liberties was almost identical:

The right of the people to be secure in their persons, houses, papers and other possessions against unreasonable search, seizure, invasion of privacy or interception of communication by any means shall not be violated. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

II J. of Micro. Con. Con. 793.

This language, with slight style changes and deletion of the only substantive change from the United States Constitutional language, that is, the reference to interceptions of communications, was subsequently adopted by the Convention and is now Article IV, Section 5 of the Constitution.

Parallels in language between Article IV, Section 5 of the Constitution of the Federated States of Micronesia, and the Fourth Amendment to the United States Constitution strongly suggest that the framers expected the provisions to have similar meanings.  Moreover, the Committee on Civil Rights, discussing its proposed Declaration of Rights, cited, almost exclusively decisions of the United States Supreme Court and other United States courts interpreting similar

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provisions of the United States Constitution.1

Thus, the Journal of the Micronesian Constitutional Convention teaches that, in interpreting the Declaration of Rights in the Constitution of the Federated States of Micronesia, we should emphasize and carefully consider United States Supreme Court interpretations of comparable language in the Bill of Rights of the United States Constitution.  We therefore turn to these decisions for aid in determining the meaning of the word "unreasonable" and in framing principles to be employed in upholding the protection against unreasonable search proclaimed in Article IV, Section 5 of the Constitution of the Federated States of Micronesia.

In applying the Fourth Amendment of the United States Constitution the United States Supreme Court has established the principle that:

The police must whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.

Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 905 (1968).  See also Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1947) ("When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.")

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This requirement has been erected to protect the sanctity of the individual citizen and to prevent the growth and exercise of unchecked government power.

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Terry, 392 U.S. at 9, 88 S. Ct. at 1873, 20 L. Ed. 2d at 898  (quoting Union Pac. Rwy. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891)).  In the United States constitutional protection of the individual against unreasonable searches, and limitation of the powers of the police, apply wherever an individual may harbor a reasonable "expectation of privacy."  Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J., concurring).  In Katz, the court further said, id. at 351, 88 S. Ct. at 511, 19 L. Ed.2d at 582:

... the Fourth Amendment protects people, not places.  What a person knowingly exposes to the public, even in his own home or office is not a subject of Fourth Amendment protection.  See Lewis v. United States, 385 U.S. 206, 210 87 S. Ct. 424, 427, 17 L. Ed. 2d 312; United States v. Lee, 274 U.S. 559, 563, 47 S. Ct. 746, 748, 71 L. Ed. 1202.  But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Under the Fourth Amendment of the United States Constitution therefore, a citizen is entitled to protection of the privacy which he seeks to maintain even in a public place. This protection extends to the contents of closed containers within his possession and those items which he carries on his person.  I conclude that the patrons of the Downtown Bar on the night of November 6, 1981 remained entitled to similar

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protection against unreasonable searches under Article IV, Section 5 of the Constitution of the Federated States of Micronesia.

We now must decide whether the search of Mr. Tipen was "unreasonable" within the meaning of Article IV, Section 5 of the Constitution of the Federated States of Micronesia.

Under the United States Constitution's Fourth Amendment:

... except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search-warrant.

Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S. Ct. 1727, 1731, 18 L. Ed. 2d 930, 935 (1967); Mancusi v. DeForte, 392 U.S. 364, 370, 88 S. Ct. 2120, 2125, 20 L. Ed. 2d 1154, 1161 (1968).

Briefly, searches without a search warrant have been upheld by United States courts where: (1) the person searched consents; or (2) the search is limited and is incident to a lawful arrest; or (3) there is "probable cause" to justify a search but the exigent circumstances make it necessary or reasonable to proceed with the search without first obtaining a warrant; or (4) the police are in hot pursuit chasing a suspect who attempts to hide from them; or (5) the police merely stop and "frisk" the person, based on a reasonable belief that the person is armed and presently dangerous.

The burden is on the government to justify a search without a warrant.  Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564, 576 (1971).  Here, the government has introduced no evidence to indicate that the

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search of Mr. Tipen was within one of those "carefully defined classes" where a search without a warrant would be permitted under United States constitutional law.

The legality of a search is not altered by whether the search actually turns up items the possession of which is illegal.  Under United States constitutional law a search cannot be justified by what it produces nor can an arrest be justified by the fruit of an illegal search.  The legality of the search must be tested on the basis of the information known to the police officer immediately before the search began.  This requirement was explained in Johnson, 333 U.S. at 16-17, 68 S. Ct. at 370-71, 92 L. Ed. at 441-42:

The Government, in effect, concedes that the arresting officer did not have probable cause to arrest petitioner until he had entered her room and found her to be the sole occupant

* * *

...it says, "... that when the agents were admitted to the room and found only the petitioner present they had a reasonable basis for believing that she had been smoking opium and thus illicitly possessed the narcotic."

Thus the Government quite properly stakes the right to arrest, not on the informer's tip and the smell the officers recognized before entry, but on the knowledge that she was alone in the room, gained only after, and wholly by reason of, their entry of her home.  It was therefore their observations inside of her quarters, after they had obtained admission under color of their police authority, on which they made the arrest.

Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest.  This will not do.  An officer gaining access to private living quarters under color of his office and of the law which he personifies must then have some valid basis in law for the intrusion.  Any other rule would undermine "the right of the people to be secure in their persons, houses, papers and effects and would obliterate one of the most fundamental distinctions between our

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form of government, where officers are under the law, and the police state where they are the law.

Also see Sibron v. New York, 392 U.S. 40, 62-63, 88 S. Ct. 1889, 1902, 20 L. Ed. 2d 917, 934-35 (1968) ("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."); Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520 (1927).

This principle is an essential corollary of the prohibition against unreasonable searches and this court therefore finds this principle it incorporated within Article IV, Section 5 of the Constitution of the Federated States of Micronesia.

This court undoubtedly will be presented in the future with difficult decisions calling for delicate balancing of the interests of individual privacy against the societal interest in law enforcement.  This case however presents no such difficulty.  No justification whatever has been suggested for the search.  If any search, seizure, or invasion of privacy can be unreasonable, then this one must be.  We conclude that the search of Mr. Tipen was unreasonable within the meaning of Article IV, Section 5 of the Constitution of the Federated States of Micronesia.

Suppression of the Evidence

The Constitution of the Federated States of Micronesia like the United States Constitution, does not specify the

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remedy to be applied upon a determination that particular conduct has violated the prohibition against unreasonable  searches.2

In the United States, after years of considering methods for proper implementation of he Fourth Amendment, the United States Supreme Court concluded that United States courts and other officials have special responsibilities to uphold the amendment.

the 4th Amendment * * * put the courts of the United States and Federal officials, in the exercise of their own and authority, under limitations and restraints [and] * * * forever secure[d] the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law * * * and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws.

Weeks v. United States, 232 U S. 383, 391-92, 34 S. Ct. 341, 344, 58 L. Ed. 652, 655 (1914).  Concerning the use of the unconstitutionally seized evidence, the United States Supreme Court said:

If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against searches and seizures is of no value, and,  so far as those thus placed are concerned, might as

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well be stricken from the Constitution.  The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.

Id. at 393, 34 S. Ct. at 344, 58 L. Ed. at 656.  Based upon these principles, the court held that in United States federal prosecutions the Fourth Amendment of the United States Constitution bars the use of evidence secured through an illegal search and seizure.

Subsequently, the United States Supreme Court extended this exclusionary rule to state, as well as federal, prosecutions.  Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).  This was done because of the court's conclusion that adequate protection of the right of privacy secured by the Fourth Amendment necessarily required the sanction of exclusion.  If unconstitutionally seized evidence could be used in state prosecutions against the person from whom it was taken the court decided,

... then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and undeserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to merit this Court's high regard as a freedom "implicit in the concept of ordered liberty."

Mapp, 367 U.S. at 655, 81 S. Ct. at 1691, 6 L. Ed. 2d at 1090.

This "exclusionary rule" remains in force today as a rule constitutionally mandated, though judicially inferred, by the Fourth Amendment of the United States Constitution.

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In recent years though, the exclusionary rule has come under attack especially by Justice Rehnquist, but with some support from other Justices.  See Robbins v. California, 453 U.S. 420, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981) (Rehnquist J., dissenting); (California v. Minjares, 443 U.S. 916, 100 S. Ct. 9, 61 L. Ed. 2d 892 (1979) (Rehnquist, J., joined by Burger, C.J., dissenting from denial of a stay).

Thus, a debate concerning the exclusionary rule rages within the United States.  It may be instructive for our purposes simply to observe that controversy and await its outcome.  In the meantime, we need not determine whether the Constitution of the Federated States of Micronesia requires that unconstitutionally seized evidence be excluded from evidence, for a motion to suppress evidence is authorized by statute.	12 T.T.C. Section 112.  That statute vests this court with authority to suppress, or exclude, evidence obtained by unlawful search and seizure.3  Having found the

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search of Mr. Tipen to have been in violation of his rights under Article IV, Section 5 of the Constitution of the Federated States of Micronesia, we grant defendant's motion under 12 T.T.C. Section 112 and exclude the evidence obtained in the search from the prosecution in this case.  It appears from the evidence submitted that the property obtained in the search may be subject to lawful detention.  Therefore the prosecution is not ordered to restore the property to the defendant.  This is without prejudice to the right of the defendant to initiate further proceedings seeking restoration of the items seized.

Motion To Reopen Hearing

After the December 1, 1981 hearing on the defendant's motion to suppress, during which the defendant called three witnesses and the government called one, the government moved to reopen the hearing.  The schedule for filing and hearing motions to suppress and any other pre-trial motions was set at the November 10, 1981 initial appearance.  Defend-ant's motion to suppress was filed on November 18.  Both parties had ample time to prepare for the hearing.  The government gave no indication of  need for additional time until the testimony of defendant's three witnesses and the government's lone witness had been completed.  Indeed, at the beginning of the hearing when the defendant requested a continuance, the government argued that no delay was necessary 

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Both parties have had ample opportunity to present any relevant information and to assert any arguments they may have pertaining to the motion to suppress.  To reopen the hearing would unnecessarily delay and extend these proceedings.  As a general proposition, parties before this court will be required to produce all evidence available to them at the time scheduled for hearing.  If for some reason they are unable to do so; the problem should be brought to the attention of the court and the opposing party before the hearing has begun.  The resources of the Federated States of Micronesia, its legal system, and this court are such that we cannot afford litigants the opportunity to try again and again, on a hit and miss basis, to present evidence upon a particular issue.  All parties are entitled to a day in court, but only in exceptional circumstances will a party be permitted to return for another try on a second day. Neither the government's motion to reopen a hearing nor its supporting affidavit suggests that the government learned of or located any new information after the hearing was closed. There is also no indication that the government was unable at the time of the hearing to present the evidence which it now proposes for consideration.

The government has presented no justification for reopening the hearing.  Therefore, the motion seeking reopening is denied.

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Conclusion

Although we do not here commit this court to exclude all evidence unconstitutionally seized, it should be understood that we are entering a new day.  The people of the Federated States of Micronesia have drafted, adopted and ratified a constitution calling for substantial protection of their individual and human rights.  This court has been consigned the obligation to uphold those rights.  We may not acquiesce in the erosion of these fundamental rights through tolerance of zealous and well-intentioned, but improper, actions of law enforcement officials.  The integrity of the governmental powers entrusted to this court, to law enforcement officers, and to other governmental officials, by the people of the Federated States of Micronesia demands that we must, above all, adhere to the constitution and laws which are the sole source of our authority.

The criminal goes free, if he must, but it is the law that sets him free.  Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.

Mapp v. Ohio, supra, 367 U.S. at 659, 81 S. Ct. at 1694, 6 L. Ed. 2d at 1092.

What Justice Brandeis of the United States Supreme Court said many years ago about the United States applies with perhaps even greater force here.

Our government in the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example. ... If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

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Olmstead v. United States, 277 U.S. 438, 485, 48 S. Ct. 5640 575, 72 L. Ed. 944, 960 (1928).

Defendant's motion to suppress is granted and the government's motion to reopen hearing is denied.  The property in question need not be restored to the defendant's possession.

Dated:    2/25/82
/s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia
Trial Division

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1. The only exceptions were references to other nations in discussion of the provision barring capital punishment, now Article IV, Section 9 of the Federated States of Micronesia Constitution.  II J. of Micro. Con. Con. 803.  This provision has no counterpart in the United States Constitution.

2. The report of the Constitutional Convention’s Civil Liberties Committee, discussing this constitutional provision, says “To remove the temptation to ignore the restraints of this Section, evidence obtained in violation thereof is made inadmissible against the accused.” Although this statement reveals that the Civil Liberties Committee anticipated adoption of the exclusionary rule, the statement by itself does not mandate adoption of the rule, for the constitutional provision itself contains no explicit exclusionary language.

3. This statutory provision, adopted before the Federated States of Micronesia came into being, remains in effect in absence of countervailing provisions in statutes enacted by the Federated States of Micronesia Congress or in the constitution as does the right of the defendant to file his motion to suppress under the statute. FSM Const. Art. XI, Section 1. “A statute of the Trust Territory of the Pacific Islands continues in effect except to the extent it is inconsistent with this Constitution, or is amended or repealed. A writ, action, suit proceeding, civil or criminal liability, prosecution,...cause of action, defense,...claim...or right continues unaffected except as modified in accordance with the provisions of this Constitution”. The statute’s references to the trial division of the High Court should now be read as referring to the trial division of this court, by virtue of the Judicial Article of the Constitution and the National Judiciary Act, Public Law 1-31. See also Secretarial Order 3039, Section 2.