FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2007-500

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

WAINER LOUIS and PERSUS ANDREW,
Defendants.
__________________________________________

ORDER REGARDING REMAINING PRETRIAL MOTIONS; MEMORANDUM

Andon L. Amaraich
Chief Justice

Hearing: September 12, 2007
Decided: October 5, 2007

APPEARANCES:

For the Plaintiff: Pole Atanraoi, Esq.
FSM Assistant Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Julius J. Sapelalut, Esq. (Louis)
Chief Public Defender
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

For the Defendant: Harry A. Seymour, Esq. (Andrew)
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Search and Seizure

For actions to constitute a search, there must be: 1) an examination of premises or a person; 2) in a manner encroaching upon one's reasonable expectation of privacy; and 3) with an intention, or at least a hope, to discover contraband or evidence of guilt to be used in prosecution of a criminal action. FSM v. Louis, 15 FSM Intrm. 348, 351 (Pon. 2007).

Search and Seizure

In order for a search to take place the police officers' intention to discover contraband or evidence is not enough. There also must be 1) an examination of premises or a person and 2) in a manner encroaching upon one's reasonable expectation of privacy. FSM v. Louis, 15 FSM Intrm. 348, 352 (Pon. 2007).

Search and Seizure

When the evidence before the court plainly shows that the officers did not conduct an examination of any premises or person but approached the funeral at a neighbor's house, asked for Louis, and Louis came out and then Louis directed the officers to his office in Palikir and upon arrival in Palikir, the police remained in the vehicle, while Louis went to his office and returned with the handgun. Under these facts, a search cannot be said to have taken place. It also cannot be said that the officers encroached upon Louis's reasonable expectation of privacy. FSM v. Louis, 15 FSM Intrm. 348, 352 (Pon. 2007).

Search and Seizure

When no search took place, it is unnecessary for the court to decide whether the defendant gave his consent. FSM v. Louis, 15 FSM Intrm. 348, 352 (Pon. 2007).

Criminal Law and Procedure  Interrogation and Confession; Evidence

Failure to inform an accused of his rights does not in and of itself entitle an accused to an acquittal, but no evidence obtained as a result of such violation shall be admissible against the accused. FSM v. Louis, 15 FSM Intrm. 348, 352 (Pon. 2007).

Criminal Law and Procedure  Arrest and Custody

One should be considered "arrested" within the meaning of 12 F.S.M.C. 218 when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime. FSM v. Louis, 15 FSM Intrm. 348, 352 (Pon. 2007).

Criminal Law and Procedure  Arrest and Custody; Criminal Law and Procedure  Interrogation and Confession

When the police officers only viewed the accused as a potential witness in the matter of another person, not as a suspect; when the officers dropped him back off at the funeral where they originally met him instead of taking him to the police station and the officers never substantially restricted or controlled the accused's freedom of movement; when the accused agreed to take the officers to fetch the handgun at Palikir, and willingly went with them in the vehicle; and when there is simply no evidence that the officers threatened, demanded, or compelled the accused in any manner, the accused was not under arrest during the car ride to and from Palikir. Accordingly, the officers were not required to inform the accused of his rights under 12 F.S.M.C. 218. FSM v. Louis, 15 FSM Intrm. 348, 353 (Pon. 2007).

Constitutional Law  Interpretation; Criminal Law and Procedure  Double Jeopardy

looks to the language of the Constitution itself. FSM v. Louis, 15 FSM Intrm. 348, 354 (Pon. 2007).

Constitutional Law  Interpretation; Criminal Law and Procedure  Double Jeopardy

Where the FSM Constitution's language has been borrowed from the United States Constitution, the court may look to leading United States cases for guidance in interpreting that language, especially where the meaning is not self-evident from the words themselves. The Double Jeopardy Clause, like most provisions of the Declaration of Rights, was drawn from the United States Constitution's Bill of Rights.  Thus, United States constitutional law at the time of the Micronesian Constitutional Convention furnishes guidance as to the intended scope of the FSM Constitution's Double Jeopardy Clause. FSM v. Louis, 15 FSM Intrm. 348, 354 (Pon. 2007).

Criminal Law and Procedure  Double Jeopardy

Under the dual sovereignty doctrine, since the national government and its individual states are independent sovereigns, a state prosecution does not bar a subsequent national prosecution of the same person for the same acts, and a national prosecution does not bar a subsequent state prosecution. FSM v. Louis, 15 FSM Intrm. 348, 354-55 (Pon. 2007).

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COURT'S OPINION

ANDON L. AMARAICH, Chief Justice:

On September 12, 2007, the Court conducted a hearing on (1) defendant Wainer Louis's motion to strike plaintiff's discovery answers from the Court's file; (2) Louis's motion to suppress certain evidence; and (3) defendant Persus Andrew's motion to dismiss. Harry Seymour, of the Public Defender's Office, appeared on behalf of Persus Andrew. Pole Atanraoi, of the FSM Attorney General's Office, appeared on behalf of plaintiff. Julius J. Sapelalut, FSM Chief Public Defender, appeared on behalf of defendant Wainer Louis. For the reasons that follow, the Court denies each of the motions.

I. Louis's Motion to Strike Plaintiff's Discovery Responses

By his motion filed June 15, 2007, through his previous counsel Beauleen Carl-Worswick, Louis joined in defendant Andrew's motion to strike from the Court's file certain discovery responses filed by plaintiff. The Court denied Andrew's motion in its August 21, 2007 order. [FSM v. Louis, 15 FSM Intrm. 206 (Pon. 2007).] For the same reasons the Court denied Andrew's motion to strike, the Court denies Louis's motion to strike.

II. Louis's Motion to Suppress Evidence

Defendant Louis has also moved the Court to suppress evidence obtained by the state police. The Court denies Andrew's motion for the reasons that follow.

Based on the proceedings during the hearing as well as the parties' moving and opposition papers, the Court makes the following findings of fact.

A. Factual Background.

On December 4, 2006, state police officers James Artui and Esteban Primo were investigating the alleged use of a firearm by Persus Andrew. During their investigation, they were told by Swinten Inek the firearm in question was taken to Wainer Louis's house. Sometime before 5:00 p.m. on December 4th, Primo and Artui drove to Louis's house in a vehicle bearing the state seal but which did not bear the markings of a regular police vehicle. Upon reaching Louis's house, Primo and Artui learned that Louis was at a neighbor's house attending a funeral. Artui approached the neighbor's house while Primo stayed in the vehicle. Artui asked that Louis be called. When Louis came, Artui informed him that they were looking for a handgun that had been used in an alleged shooting. Artui asked Louis if he had taken the handgun. Louis replied that he had taken the handgun from Swinten Inek's house and that he would get into the vehicle to fetch the handgun so he could give it to officers Artui and Primo. After Louis got into the vehicle, he directed the officers to Congress's office in Palikir. During the car ride, a friendly atmosphere existed, as Louis and officers Primo and Artui knew each other well. Upon arriving in Palikir, officers Primo and Artui stayed in the vehicle, while Louis went inside the office. Louis returned with the handgun and gave it to officer Artui. Officers Artui and Primo then returned to Kolonia and dropped off Louis where they had picked him up. Officers Artui and Primo did not view Louis as a suspect but as a potential witness in the case against Persus Andrew. Louis was never taken to the police station. Louis was not charged with any crime in state court. On April 9, 2007, the national government formally charged Louis by filing the information in this case.

B. Legal Analysis.

Louis asks the Court to suppress the handgun he gave to the state police as well as any oral statements he made during the car ride with officers Primo and Artui. Louis bases his motion on the grounds that (1) the state police conducted an unreasonable search and seizure in violation of his constitutional rights under Article IV, Section 5 of the FSM Constitution and (2) the state police took Louis into "custody," failed to inform him of his rights under 12 F.S.M.C. 218, and, therefore, the evidence in question should be suppressed under 12 F.S.M.C. 312.

1. Unreasonable search.

Article IV, Section 5 of the FSM Constitution states: "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. . . ."

In support of his assertion that an unreasonable search took place, Louis cites the case FSM v. Mark, 1 FSM Intrm. 284 (Pon. 1983). The Mark case addressed the lawfulness of police seizure of marijuana plants that were in the plain view of the police officers as they approached a house looking for a juvenile suspect in another unrelated case. The defendant in Mark sought to exclude the marijuana plants as evidence obtained as a result of an unlawful search and seizure. The Mark court set forth a test to determine whether an unreasonable search has taken place:

it is generally agreed that for actions to constitute a search, there must be: (1) an examination of premises or a person; (2) in a manner encroaching upon one's reasonable expectation of privacy; and (3) with an intention, or at least a hope, to discover contraband or evidence of guilt to be used in prosecution of a criminal action.

FSM v. Mark, 1 FSM Intrm. 284, 289 (Pon. 1983). The Mark court held defendant's constitutional rights were not violated because no search had taken place and that the police officers did not encroach upon the defendant's reasonable expectation of privacy.

During oral argument in the case at bar, counsel for Louis relied on the Mark case for his argument that officers Artui and Primo conducted an unreasonable search because they intended to discover evidence, i.e., the handgun. However, under the Mark test, in order for a search to take place the intention of police officers is not enough. There also must be (1) an examination of premises or a person and (2) in a manner encroaching upon one's reasonable expectation of privacy.

The evidence before the Court plainly shows that officers Artui and Primo did not conduct an examination of any premises or person. Officer Artui approached the funeral at Louis's neighbor's house, asked for Louis, and Louis came. Then Louis directed Artui and Primo to his office in Palikir. Upon arrival in Palikir, the police remained in the vehicle, while Louis went to his office and returned with the handgun. Under these facts, a search cannot be said to have taken place. It also cannot be said that the officers encroached upon Louis's reasonable expectation of privacy.

Louis also relies on the case FSM v. George, 1 FSM Intrm. 449 (Kos. 1984) for the proposition that the government bears the burden of proving the existence of voluntary consent to a warrantless search. Because the Court concludes that no search took place, it is unnecessary to decide whether Louis gave his consent.

Accordingly, the Court concludes that Louis's rights under Article IV, Section 5 of the Constitution were not violated.

2. Alleged failure to inform Louis of rights.

Louis further argues that the officers should have, but failed to, inform him of his rights under 12 F.S.M.C. 218, which requires officers to inform arrested individuals of certain rights. Louis contends that officers Artui and Primo placed him under arrest when Louis got into the officers' vehicle and rode with them to and from his office in Palikir, and that the handgun and any statements made to officers Artui and Primo therefore must be suppressed under 12 F.S.M.C. 220. 12 F.S.M.C. 220 provides: "No violation of the provisions of this title shall in and of itself entitle an accused to an acquittal, but no evidence obtained as a result of such violation shall be admissible against the accused . . . ."

Louis cites the case Kosrae v. Irwin, 11 FSM Intrm. 192 (Kos. S. Ct. Tr. 2002) in support of his contention that he was arrested by officers Artui and Primo. In the Irwin case, police officers were investigating several crimes committed during the evening of August 24, 2002. Shortly after the incident, the police stopped the defendant, who was walking on the road near the incident. The police suspected defendant committed the crimes. The police "placed" the defendant into their police car. Id. at 193. After the police asked the defendant a series of questions, the defendant "was then transported back to the scene of the crimes and made to assist the Police Officers in looking for physical evidence nearby. Defendant was compelled to wait near the police car while the Police Officers collected witness testimony and identification information." Id. The Irwin opinion implies defendant was afterward taken to the police station and formally arrested and detained. In determining whether defendant was considered "arrested" when the police officers placed him into the police car, the Irwin court relied on a test set forth in FSM v. Edward, 3 FSM Intrm. 224 (Pon. 1987). The test set forth in Edward is that "one should be considered 'arrested' within the meaning of 12 F.S.M.C. 218 when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime." [Edward, 3 FSM Intrm. at 232.] Applying that test, the Irwin court concluded that for purposes of being advised of his constitutional rights, defendant was considered arrested when he was placed into the police car because defendant's "freedom was substantially restricted" and he was under the police officers' "suspicion that he was involved in the crimes committed . . . earlier that evening." Irwin, 11 FSM Intrm. at 193.

The Irwin case is distinguishable from the present case. In Irwin, the police officers actively restricted defendant's freedom of movement  the police officers "placed" defendant into the police car, they "made" defendant assist with looking for evidence, and "compelled" him to wait by the police car. Moreover, the reason the police officers restricted defendant's freedom of movement was because they suspected he committed the crimes earlier that evening.

In the present case, however, officers Artui and Primo testified that they only viewed Louis as a potential witness in the Persus Andrew matter, not as a suspect. That officers Artui and Primo did not view Louis as a suspect is supported by the fact that they dropped him back off at the funeral instead of taking him to the police station. Moreover, there is no evidence that officers Artui and Primo substantially restricted or controlled Louis's freedom of movement. According to the evidence, Louis agreed to take officers Artui and Primo to fetch the handgun, and willingly went with them in the vehicle. There is simply no evidence that the officers threatened, demanded, or compelled Louis in any manner. Under these circumstances, the Court concludes Louis was not arrested during the car ride to and from Palikir. Accordingly, officers Primo and Artui were not required to inform Louis of his rights under 12 F.S.M.C. 218.

For the foregoing reasons, the Court denies defendant Louis's motion to suppress.

III. Defendant Andrew's Motion to Dismiss

During the September 12, 2007 hearing the Court also heard defendant Andrew's motion to dismiss. The basis of Andrew's motion is that prosecution of the present charges constitutes double jeopardy. Counsel for Andrew has informed the Court that Andrew was charged and convicted in Pohnpei Criminal Case No. 334-06 of illegal possession of firearm. Andrew, however, has not presented any evidence that he was convicted. For purposes of this motion, the Court will assume Andrew was convicted of illegal possession of firearms, which appears to be a violation of Pohnpei State Law No. 2L-136-82, § 5(1).

Andrew argues that in light of his conviction in Pohnpei state court of illegal possession of firearms, prosecution of the present charges in this Court violate Andrew's right under Article IV, Section 7 of the FSM Constitution to not be twice placed in jeopardy for the same offense. Article IV, Section 7 states, "A person may not be compelled to give evidence that may be used against him in a criminal case, or be twice put in jeopardy for the same offense."

Andrew has acknowledged, both in his moving papers and at oral argument, that the dual sovereignty doctrine permits both state and federal authorities to prosecute a defendant for the same conduct without violating a defendant's double jeopardy rights under the constitution. Andrew contends, however, that the dual sovereignty doctrine does not apply in this case because, as he argued in his prior motion to dismiss, the national government has neither authority nor jurisdiction to regulate the possession of firearms in this case.

With respect to his position that the national government lacks authority and jurisdiction to regulate Andrew's alleged possession of firearms, Andrew has not presented any argument not already presented in his prior motion to dismiss. For the reasons set forth in the Court's August 21, 2007 order denying Andrew's prior motion to dismiss [Louis, 15 FSM Intrm. at 211-12], the Court rejects Andrew's argument that the national government lacks authority and jurisdiction to regulate Andrew's alleged possession of firearms.

In light of the Court's conclusion that the national government has the authority and jurisdiction to regulate Andrew's alleged possession of firearms, the Court turns to the dual sovereignty doctrine, and more specifically, whether prosecution by the national government after conviction by the state government for the same conduct violates Andrew's double jeopardy rights under the FSM Constitution.

In determining the scope and meaning of the double jeopardy clause the Court first looks to the language of the Constitution itself. Article IV, Section 7 states, "A person may not be compelled to give evidence that may be used against him in a criminal case, or be twice put in jeopardy for the same offense." The Court concludes that this language is inconclusive with respect to whether prosecution by the national government after conviction by the state government for the same conduct violates Andrew's double jeopardy rights.

The Court next turns to United States cases for guidance. "It is well settled in the decisions of this court that where the language of the FSM Constitution has been borrowed from the United States Constitution, we may look to leading United States cases for guidance in interpreting that language, especially where the meaning is not self-evident from the words themselves." Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990) (citations omitted). "The Double Jeopardy Clause, like most provisions of the Declaration of Rights, was drawn from the Bill of Rights of the United States Constitution. . . . Thus, United States constitutional law at the time of the Micronesian Constitutional Convention furnishes guidance as to the intended scope of this Constitution's Double Jeopardy Clause." Laion v. FSM, 1 FSM Intrm. 503, 522-23 (App. 1984) (footnote and citation omitted).

United States constitutional law at the time of the Micronesian Constitutional Convention recognized the dual sovereignty doctrine. The United States Supreme Court stated:

[It is a] well-established principle that a federal prosecution does not bar a subsequent state prosecution of the same person for the same acts, and a state prosecution does not bar a federal one. The basis for this doctrine is that prosecutions under the laws of separate sovereigns do not, in the language of the Fifth Amendment, "subject [the defendant] for the same offence to be twice put in jeopardy":

"An offence, in its legal signification, means the transgression of a law. . . . Every citizen of the United States is also a citizen of a State or territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense or transgression of the laws of both. . . . That either or both may (if they see fit) punish such an offender, cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offence; but only that by one act he has committed two offences, for each of which he is justly punishable." Moore v. Illinois, 14 How. 13, 19-20, 14 L.Ed. 306.

United States v. Wheeler, 435 U.S. 313, 316-17, 98 S. Ct. 1079, 1083, 55 L. Ed. 2d 303, 308-09 (1978) (footnote omitted); see also Bartkus v. Illinois, 359 U.S. 121, 79 S. Ct. 676, 3 L. Ed. 2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S. Ct. 666, 3 L. Ed. 2d 729 (1959).

The dual sovereignty doctrine is explained in Corpus Juris Secundum as follows, "Due to the fact that the federal government and its individual states are independent sovereigns, a state prosecution does not bar a subsequent federal prosecution of the same person for the same acts, and a federal prosecution does not bar a subsequent state prosecution." 22 C.J.S. Criminal Law § 258 (1989).

The above authorities are sufficient to establish the existence of the dual sovereignty doctrine in United States constitutional law at the time of the Micronesian Constitutional Convention. Therefore, under the precedent set forth in Laion v. FSM, 1 FSM Intrm. 503 (App. 1984), and in recognition of the federal system of government in the FSM, the Court adopts the dual sovereignty doctrine as part of our double jeopardy jurisprudence.

Applying the dual sovereignty doctrine to the present case, Andrew's constitutional double jeopardy rights are not violated by the national government's prosecution of the current charges even though he was convicted by Pohnpei State for the same conduct. Accordingly, the Court denies Andrew's motion to dismiss.

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