FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2008-1501

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

TORY SAPUSI,
Defendant.

________________________

ORDER DENYING SUPPRESSION

Ready E. Johnny
Associate Justice

Hearing: October 1, 17, 2008
Decided: February 11, 2009

APPEARANCES:

For the Plaintiff: Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: William E. Minkley, Esq.
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Search and Seizure
 An individual's constitutional protection against unreasonable searches and the limitation of police powers apply wherever an individual may harbor a reasonable expectation of privacy. 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; 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. Sapusi, 16 FSM Intrm. 315, 317 (Chk. 2009).

Search and Seizure
 When the police officer did not enter the accused's home or any house in which he was staying; when there was no evidence that the accused had an expectation of privacy in anything present in another's house that was entered; when there was no evidence that the accused resided there, or that he stayed there intermittently, or that he had permission to leave any personal items there, or that he had permission or authority to enter and use the house, or even that the bag seized was his; when there is also no evidence about how the other came to have possession of the pistol and ammunition; when the accused does not claim a property interest in the pistol and ammunition or the bag; and when the accused also was not present in the house when the police officer entered it, the accused lacks standing to object to the entry of the house and the seizure of the pistol and ammunition after the other gave the bag it was in the the officer. FSM v. Sapusi, 16 FSM Intrm. 315, 317 (Chk. 2009).

Search and Seizure
 Exigent circumstances may make it necessary or constitutionally reasonable to proceed with a search without first obtaining a warrant. Exigent circumstances are present when a police officer has heard three gunshots fired in a residential area since people's lives could have been in danger if more shots were fired and when the officer did not know who was firing and had no reason to know whether more would be fired. Thus, exigent circumstances existed that required the officer to investigate the possible sources of the gunfire. FSM v. Sapusi, 16 FSM Intrm. 315, 318 (Chk. 2009).

* * * *

COURT'S OPINION

READY E. JOHNNY, Associate Justice:

 On September 26, October 1, and 17, 2008, this came before the court on Defendant's Motion to Suppress Evidence, filed September 19, 2008, and the plaintiff's opposition to Defendant's Motion to Suppress Evidence, filed September 23, 2008. The motion is denied. The court's reasons follow.

I.

 The defendant, Tory Sapusi, in his motion, moved to suppress a handgun and live ammunition seized on May 17, 2008. At the suppression hearing, Sapusi moved orally to suppress his alleged confession and an advice of rights form.

 After carefully considering the testimony and evidence before the court, the court finds that, although the paperwork may have been sloppily handled, Sapusi knowingly and intelligently waived his rights and made the confession at issue. The motion to suppress the confession is denied.

II.

 Sapusi moved to suppress the handgun and ammunition seized by Chuuk Police Officer Valerio Bossy on the night of May 17, 2008. On that evening, the officer was off-duty and at home. After he heard three nearby gunshots, Officer Bossy went looking for the source of the shooting. He did not know who had fired the shots. He met Sapusi outside of Santus's house. (Sapusi and Santus Besset had left Bossy's home not long before the shots were fired.) Sapusi told Officer Bossy to go back, but he continued walking toward Santus's house. He entered the house of Santus's sister, Ermi Siota, where he met a very scared woman named Linda, who was staying there, and who had a bag. (It is unclear whether Bossy saw Linda first before entering the house or just after.) Linda gave Bossy the bag. Inside the bag, Officer Bossy found a pistol, 44 rounds of ammunition, and six more rounds left in the pistol's magazine (three had been discharged). Linda is not a suspect and has not been charged.

 It is this pistol and ammunition that Sapusi asks the court to suppress on the ground that when it was seized Officer Bossy did not have a warrant to search or enter Siota's house and because Linda had not been informed of her rights beforehand.

III.

 The court denies Sapusi's motion to suppress the pistol and ammunition on two grounds  first Sapusi lacks standing to object to the entry of Siota's house and the seizure of the the pistol and ammunition, and second, exigent circumstances were present.

 Officer Bossy did not enter Sapusi's home or any house in which Sapusi was staying. An individual's constitutional protection against unreasonable searches and the limitation of police powers apply wherever an individual may harbor a reasonable expectation of privacy. FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon. 1982). 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; 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, 298 (Pon. 1983).

 There was no evidence before the court that Sapusi had an expectation of privacy in anything present in Ermi Siota's house. There was no evidence that he resided there, or that he stayed there intermittently, or that he had permission to leave any personal items there, or that he had permission or authority to enter and use Siota's house, or even that the bag was his. There is also no evidence before the court about how Linda came to have possession of the pistol and ammunition, and Sapusi does not claim a property interest in the pistol and ammunition or the bag. Sapusi also was not present in Siota's house when Officer Bossy entered it.

 In FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006), a defendant's motion to suppress warrants, monitoring orders, and subpoenas duces tecum served upon banks and any evidence seized pursuant to those search warrants as the fruits of illegal searches was denied since the defendant lacked standing to challenge the searches of those bank records because he lacked an expectation of privacy therein. Under the circumstances of this case, Sapusi does not have standing to object to Officer Bossy's entry of Siota's house or his seizure of the bag's contents after it was given to Bossy by Linda.

 The court has previously recognized that exigent circumstances may make it necessary or constitutionally reasonable to proceed with a search without first obtaining a warrant. See FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001) (when exigent circumstances present and to protect the police and others from possible injury, it was constitutionally permissible for the police to conduct the patdown search of or to frisk suspect for weapons); Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985) (exigent circumstances theory suitable for application to arrest fishing vessels within the Federated States of Micronesia without a warrant); Tipen, 1 FSM Intrm. at 87 (exigent circumstances may make it necessary or reasonable to proceed with the search without first obtaining a warrant); Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 496 n.4 (Pon. 2005) (exigent circumstances (an emergency or a dangerous situation) can overcome the warrant requirement for felony arrest inside the suspect's home).

 Exigent circumstances were present in this case. In this case, Officer Bossy had heard three gunshots fired in a residential area. People's lives could have been in danger if more shots were fired. Officer Bossy did not know who was firing and had no reason to know whether more would be fired. Thus, exigent circumstances existed that required Officer Bossy to investigate the possible sources of the gunfire.

IV.

 Now therefore it is hereby ordered that the defendant Tory Sapusi's motion to suppress is denied, and it is further ordered that defendant Tory Sapusi shall appear on March 4, 2009, at 9:30 a.m. to enter his plea and that if a not guilty plea is entered then, trial will follow immediately thereafter.

* * * *