THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. George, 1 FSM Intrm. 449 (Kos. 1984)

TRIAL DIVISION-STATE OF KOSRAE

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

PALIKSRU GEORGE,
Defendant.

CRIMINAL CASE NO. 1983-2502

OPINION

Before Edward C. King
Chief Justice
Kosrae, Federated States of Micronesia
96941
April 30, 1984

APPEARANCES:

For the Plaintiff:		Carl V. Ullman
Chief Litigator
Office of the Attorney General
Federated States of Micronesia
Ponape, Caroline Islands 96941

For the Defendant:	Loretta Faymonville
Public Defender
State of Ponape
Ponape, Caroline Islands 96941

[1 FSM Intrm. 449]

Defendant Paliksru George's motion to suppress poses for the first time in the Federated States of Micronesia the question of what showing of consent is required to permit police officers having no search warrant to enter a private residence and seize personal property found there.

The government has failed to meet its burden of showing consent or any other justification for the warrantless search.  The Court therefore concludes that the actions of the police in entering and searching the house violated Paliksru George's constitutional protections against unreasonable search and seizure.  The items seized must be excluded from evidence.

Factual Background

On the night of February 12, 1983, Kosrae State Police officers Kiatoa Ittu and Andy Robert were the only officers at the Kosrae jail and police station.  Late that night Joseph George, defendant's nephew, arrived at the jail and told them he had heard what he thought was the sound of a gun firing in the vicinity of his house.  There is no evidence as to the number of shots heard.

The police officers had no vehicle, flashlight or weapons with them.  After pausing to lock the jail and police station, they asked Joseph George to drive them to the location of the gunshot firing.  When they arrived, they took up positions on the road some 50 yards from Paliksru George's

[1 FSM Intrm. 450]

house, which Joseph George identified as the possible source of the gunshot noise.  They asked Joseph George to drive on to obtain a flashlight for them.  About that time they were joined by a third officer who happened to be driving down the road.  The three officers then observed the house while awaiting Joseph George's return with the flashlight.  During this period of observation, Paliksru George's house was dark.  The officers noted no sound or activity of any kind in the area.  Officer Ittu thought he saw the light in the house go out just as their car approached, but officer Robert made no such observation.

The estimates vary as to precisely how much time was spent in any particular activity, but it is clear that, by the time Joseph George returned with the flashlight, at least 30 minutes had elapsed since he had first arrived at the police station.  During that time there was no indication of trouble or untoward activity of any kind at Paliksru George's house.

With the flashlight, Officers Ittu and Robert proceeded down a path toward the house.  About halfway between the house and the road, the path forked.  Officer Ittu took one fork, going one way around the house, and Officer Robert went the other way.  Officer Ittu testified that as he approached he shined the light through a window into the house and saw the defendant getting down on a mat on the floor, then pulling the sheet over his head, as though pretending to be

[1 FSM Intrm. 451]

asleep.  Officer Robert did not see the flashlight being directed into the house although this possibly could be explained by the fact that he and officer Ittu had separated prior to arrival at the door of the house.  Paliksru George testified that he was asleep and saw no light shining into the house.

I find it unnecessary to decide whether the light was shone into the house before the officers reached the door.  There also is no necessity to determine whether Paliksru George was asleep or merely feigning sleep as the officers approached the house.  The crucial question is what happened when the officers reached the door.

Both officers testified that when they arrived at the door, Officer Ittu requested permission to enter and Paliksru George gave them permission.  However, Officer Ittu was unable to say in what way Mr. George communicated permission to them.  Officer Robert testified that he knew of no particular action taken by Paliksru George that signalled Paliksru George's consent.  Neither officer explained precisely by what words or in what manner permission was requested or granted.

Paliksru George's version of the events was that one of the officers was already in the house when he was awakened by a light shining on him, and that he was then immediately told that the police officers were seeking "dangerous devices." The defendant does not admit having been asked permission by

[1 FSM Intrm. 452]

the officers to enter.  He emphatically denies having given permission.  All agree that Paliksru George was lying on the floor on his sleeping mat when the police officers opened the door and entered without his assistance.

Under these circumstances, and having carefully observed the demeanor of all witnesses, I regard the contention of the police officers that they received permission to enter as mere personal conclusions that Paliksru George's failure to oppose their entry amounted to permission to enter.  I find that they received no response other than the silence of the defendant, and no positive indication which could justify their believing that Paliksru George consented to their entry into his house.  Moreover, Paliksru George testified, and I find, that he did not believe he had a right to refuse the police officers anything.

When the officers entered the house, Officer Ittu saw a machete near Paliksru George's sleeping mat and immediately grabbed it.  He then repeated that they were looking for any dangerous devices in the house.  Paliksru George walked to the next room and opened a cupboard which contained three rifles.  The officers followed him into the room.  Just as the defendant put his hand on the first rifle, Officer Ittu immediately grasped it also, taking it, without resistance from the defendant.  This procedure was essentially repeated with the other two rifles.

[1 FSM Intrm. 453]

The officers then departed, taking with them the machete and the three rifles.  They did not inquire of the defendant whether he had the identification card required by law for the rifles and they did not then arrest him.  Subsequently, however, the charges in this case were filed, accusing the defendant of possession of a firearm without a firearm identification card in violation of 11 F.S.M.C. §§ 1205 and 1223.

Legal Analysis

The defendant filed this motion to suppress the seized firearms as evidence, asserting that the search in which the guns were found, and their seizure, violated his "right to freedom from unreasonable search and seizure guaranteed to him under section 103 of the Bill of Rights of the Constitution of the Federated States of Micronesia."

There is no "section 103," and nothing called a "Bill of Rights," in the Constitution of the Federated States of Micronesia.  Counsel for the defendant is presumably referring to the statutory provisions carried over from the Trust Territory Code, and referred to in codification as the "Bill of Rights."  These older provisions are now reproduced in Title 1 of the Code of the Federated States of Micronesia.  The prohibition against unreasonable search and seizure is set out at 1 F.S.M.C. 103.

The primacy of these older provisions as statements of

[1 FSM Intrm. 454]

the core rights of individuals within the Federated States of Micronesia has been supplanted by the Constitution of the
Federated States of Micronesia, especially the Declaration of Rights contained in Article IV of the Constitution.  While the older provisions may retain some residual viability in the unlikely event that they furnish protections beyond those available under the Declaration of Rights, the starting point and primary focus of analysis should normally be the Constitution's Declaration of Rights, not the statutory "Bill of Rights."1

The Constitution of the Federated States of Micronesia provides 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.

Under this provision, "except in certain carefully defined classes of cases, a search of private property

[1 FSM Intrm. 455]

without proper consent is unreasonable unless it has been authorized by a valid search warrant."  FSM v. Tipen, 1 FSM Intrm. 79, 87 (Pon. 1982).  The burden is on the government to justify a search without a warrant.  Id.  Here, the government contends only that Mr. George consented, and it relies on no other possible justification for its search without a warrant.

This Court has not previously considered what must be shown in order to establish consent sufficient to justify the warrantless search of a private house.  However, we have previously recognized that we may look to principles developed under the Fourth Amendment of the United States Constitution for guidance in determining the appropriate application of Article IV, Section 5 of this Constitution.  Tipen, 1 FSM Intrm. at 85; FSM v. Mark, 1 FSM Intrm. 284, 294 (Pon. 1983).

In reviewing government assertions of private consent to a warrantless search, United States courts have been hostile to claims that constitutional rights have been waived.  This hostility has been formalized in the rules which state that the government bears the burden of proving the existence of voluntary consent and that acquiescence in the desire of law enforcement personnel to search will not be presumed but must be affirmatively demonstrated.  E.C. Cleary, McCormick on Evidence § 175 (1972).  The consent must be voluntary rather than "simple submission to what is

[1 FSM Intrm. 456]

considered the authority or the power of the state to search."  Id.

Although this Court looks to the United States constitutional decisions for guidance in determining the meaning of "comparable' provisions contained in the Constitution of the Federated States of Micronesia, we may not slavishly accept the United States interpretations, but instead must independently consider whether the rulings of United States courts are appropriate for application within the Federated States of Micronesia.  Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1983).

The United States Fourth Amendment guidelines discussed here seem appropriate for application in Micronesia.  As already noted, Article IV, Section 5 prohibits invasions of privacy in addition to providing the protections against unreasonable search and seizure contained in the Fourth Amendment of the United States Constitution.  It seems unlikely then that the framers contemplated an interpretation that would provide less protection than is available under the Fourth Amendment of the United States Constitution.  Moreover, no one has suggested any reason, and none occurs to the Court, why a private home in Micronesia should be less sacrosanct than a home in the United States or why a home in Micronesia should be more subject to invasion by government officials.  This Constitution, as well as that of the United States, makes specific mention of the right of persons to be

[1 FSM Intrm. 457]

secure in their "houses."

Applying these principles to the circumstances of this case, it is apparent that the government has not met its burden of establishing that voluntary consent was given.  A demand, even if courteously expressed, is different from a request, and a citizen's compliance with a police officer's demand, backed, as such a demand would be, by apparent force of law, is perhaps subtly, but nonetheless significantly, different from voluntary consent to a request.

It is for the Court to decide whether voluntary consent, as opposed to passive submission to legal authority, occurred.  The burden is on the government to put before the Court facts, not mere conclusions of police officers, which will permit the judge to decide whether consent was given." Here, no such showing was made and all the evidence, except for the conclusions of the police officers, casts doubt on any claim that voluntary consent was given.

Paliksru George specifically stated that he did not believe he was entitled to deny the police officers anything.  What transpired once the police officers entered the house even more persuasively suggests an atmosphere of police authority and control, rather than the sort of unthreatening and relaxed exchange between police and citizen where a waiver of constitutional protections might easily be seen as voluntary.

Upon entry, Officer Ittu immediately took possession of

[1 FSM Intrm. 458]

the machete lying on the floor near Mr. George.  The police officers then told Paliksru George that they were seeking dangerous devices.  There was no suggestion that their words at this time were framed as a request.  When Paliksru George went to the next room, both officers followed, again without requesting or receiving specific permission to do so.  Finally, as soon as Paliksru George touched each of the rifles in question, one of the officers immediately placed his own hand on it and took it away from the defendant.

These circumstances, coupled with Mr. George's statement that he felt that he had no option to the contrary, and the fact that Paliksru George neither said nor did anything to permit the officers to enter the house, do not lend themselves to an inference that Paliksru George "consented" to the entry of the officers.  He merely submitted.

The unconsented and warrantless entry into the house, without any subsequent action on the part of the officers to impress upon Paliksru George that they could be influenced by his wishes as to whether a search might be conducted, erases any possibility of finding any aspect of the search of the house, or seizure of the firearms, either consented to or untainted.  Thus, the motion to suppress must be granted and the firearms obtained by officers Ittu and Robert as a result of their entry into Paliksru George's house on the night of February 12, 1983 must be excluded from evidence.

[1 FSM Intrm. 459]

Guidelines

A few additional words may be useful as a guide to police officers.  The officers in this case were responding to a complaint involving use of a firearm.  In any such situation, a great deal of caution is required to avoid unnecessary risk to citizens or to the officers themselves.  This Court neither minimizes the difficulty of the situation in which the officers found themselves nor seeks to impose complex and technical requirements on other police officers involved in perilous or difficult circumstances.

The overriding fact, however, is that actions of police officers must conform to constitutional demands.  This Court said in Tipen, 1 FSM Intrm. at 95:

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.

While the existence of probable cause to believe that a crime has been committed and that a particular person has committed it is not in itself sufficient to justify a

[1 FSM Intrm. 460]

warrantless search, the establishment of probable cause is nevertheless critical to any unconsented search.  Without probable cause, no search warrant may be obtained and no unconsented search may be conducted.  Tipen, 1 FSM Intrm. at 89; FSM Crim. R. 4.

These constitutional principles must be applied with full vigor when a dwelling place is the object of the search:

It is a "basic principle of Fourth Amendment law" that searches and seizures inside a house without a warrant are presumptively unreasonable * * * The Fourth Amendment protects the individual's privacy in a variety of settings.  In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home-a zone that finds its roots in clear and constitutional terms:  "The right of the people to be secure in their . . . houses . . . shall not be violated."  That language unequivocally  establishes the proposition that "[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."  Silverman v. United States, 365 U.S. 505, 511.  In terms that apply equally to seizures of property and the seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house.

Payton v. New York, 445 U.S. 573, 586, 589-90, 100 S. Ct. 1371, 1380, 1381-82, 63 L. Ed. 2d 639, 651, 653 (1980).

What then could the officers have done?  Police officers desiring to conduct a search should normally obtain a search warrant.  At the time, insofar as the record shows, the late Judge Linus George was on Kosrae and could have issued a warrant.  The requirement that, barring exceptional

[1 FSM Intrm. 461]

circumstances, officers obtain a warrant prior to conducting a search serves to motivate them to assess their case and to obtain perspective from the very start.  Had Officers Ittu and Robert considered seeking a search warrant, they would, necessarily have recognized the paucity of the information available to persuade a judge that they had probable cause to believe that a crime had been committed and that Paliksru George had committed it.  Such an analysis probably would have led them simply to wait and keep the area under surveillance.

If the officers decided that it was either necessary or desirable to approach the house, they could have investigated without entering the house.  To be precise, they could simply have knocked at the door, awaited Paliksru George's response, and talked with him outside in order to ascertain his state of mind.

If this direct approach might have entailed unacceptable risk, the officers could have approached the house, keeping themselves hidden.  They then could have called out to Mr. George asking him to come outside for questioning.  After ascertaining that he was unarmed, they could then have approached the defendant to discuss matters with him.

Finally, if they felt it was absolutely necessary or highly desirable to attempt to investigate inside the house, they could have sought Paliksru George's consent to enter,

[1 FSM Intrm. 462]

advising him of his right to deny them entry, or otherwise assuring that the consent was voluntary. officers entering a house by consent for purposes of a search must keep in mind the eventual likelihood that they will need to establish that the consent was voluntary.

Conclusion

Only under rare circumstances would this Court likely find that a homeowner who neither says nor does anything to indicate affirmative consent has consented to a warrantless search of his house.  The entry into the house of Paliksru George on the night of February 12, 1983 violated his rights under Article IV, Section 5 of the Federated States of Micronesia Constitution.  All items obtained in the course of the search conducted pursuant to that entry are tainted and must be excluded from evidence.

The motion to suppress is therefore granted.

SO ORDERED the 27th day of March 1984.

/s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia

Entered this 30th day of April 1984.

/s/ Emiliana J. Kihleng
Chief Clerk of Court
Supreme Court of the Federated
States of Micronesia

[1 FSM Intrm. 463]

1. There seems little possibility that the protection against unreasonable search and seizure afforded by 1 F.S.M.C. 103 is superior to that available under Article IV, Section 5 of the Declaration of Rights.  The words in the two provisions are practically identical, the principal difference being that the constitution prohibits invasions of privacy also, while Section 103 prohibitions relate only to searches and seizures.  It is perhaps also significant that, insofar as may be concluded from the reported cases, Section 103 protection was never invoked successfully to suppress unlawfully obtained evidence throughout the entire history of the Trust Territory Government.