FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Wainit
11 FSM Intrm. 424 (Chk. 2003)
 
[11 FSM Intrm. 424]
 
FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
TADASHI WAINIT, KENT CHEIPOT, and
KERSON RIZAL,
Defendants.
 
CRIMINAL CASE NO. 2002-1501
 
ORDER AND MEMORANDUM
 
Martin G. Yinug
Associate Justice
 
Hearing: February 14, 2003
 
Submitted: February 19, 2003
 
Decided: March 21, 2003
 
APPEARANCES:
 
For the Plaintiff:                       R. Anthony Welch, Esq.
                                                 Assistant Attorney General
                                                 FSM Department of Justice
                                                 P.O. Box PS-105
                                                 Palikir, Pohnpei FM 96941
 
For the Defendant:                 Stephen V. Finnen, Esq.
(Wainit)                                    Law Offices of Saimon & Associates
                                                 P.O. Box 1450
                                                 Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Courts ) Recusal
      When a motion is included with an alternative motion to recuse the judge it is proper to consider the motion to recuse first even though the motion to recuse is termed an "alternative" because, except for purely procedural or housekeeping matters, once a motion to recuse has been filed, it must be ruled on and reasons given before the judge may proceed further. FSM v. Wainit, 11 FSM Intrm. 424, 429 (Chk. 2003).
 
Courts ) Recusal
     Generally, neither counsel nor a party may seek recusal of a judge by announcing that they intend to call the judge as a witness. The general rule is that since a court speaks only through its journal, a judge cannot testify about the meaning or intent of his decision in a case or explain aspects
[11 FSM Intrm. 425]
of the decision further. Nor can a judge be called to testify as to secret or unexplained reasons which led him to decide a case in a certain manner. FSM  v. Wainit, 11 FSM Intrm. 424, 429 (Chk. 2003).
 
Courts ) Recusal
      Attempts to disqualify judges by indicating that the judge will be called as a witness are not favored and are rarely granted. Such an easy method of disqualifying a judge should not be encouraged or allowed. FSM v. Wainit, 11 FSM Intrm. 424, 430 (Chk. 2003).
 
Courts ) Judges; Courts ) Recusal
     The prohibition against compelling a judges testimony is reflected in a long-standing principle that a court speaks only through its orders. This ban on judges testifying has limits. Those limits are that a judge must be acting as a judge, and that it is information regarding his or her role as a judge that is sought. FSM v. Wainit, 11 FSM Intrm. 424, 430 (Chk. 2003).
 
Courts ) Recusal
     When it is the judges actions as a judge issuing a search warrant that a party would have the judge testify about, the judge is not a potential witness concerning his issuance of a search warrant, and thus this cannot be a ground to grant the recusal motion. FSM v. Wainit, 11 FSM Intrm. 424, 430 (Chk. 2003).
 
Courts ) Recusal
     The applicable recusal statute requires that a Supreme Court justice disqualify himself in any proceeding in which his impartiality might reasonably be questioned. FSM v. Wainit, 11 FSM Intrm. 424, 430 (Chk. 2003).
 
Courts ) Recusal
     When the court did not sua sponte raise the issue of the search warrants validity and only proceeded to that question after defense counsel had insisted on entering that area and the government had orally waived its right to oppose the motion in writing and when there was no proper challenge to, and the court has made no ruling on, the arrest warrants validity, the court will not grant a recusal motion because the courts oral or written rulings on a search warrants validity or its issuance of an arrest warrant cannot be basis upon which its impartiality may be reasonably questioned and recusal granted. FSM v. Wainit, 11 FSM Intrm. 424, 430-31 (Chk. 2003).
 
Courts ) Recusal
     A judges statements and rulings made in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1) (appearance of partiality) and even a judges adverse rulings made in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1). FSM v. Wainit, 11 FSM Intrm. 424, 431 (Chk. 2003).
 
Courts ) Recusal
     Ex parte applications are allowed (and are usual) for warrant applications or motions to file under seal. No inference of a judges partiality may be drawn from them. FSM v. Wainit, 11 FSM Intrm. 424, 431 (Chk. 2003).
 
Courts ) Recusal
     The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial, that is, resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated. FSM v. Wainit, 11 FSM Intrm. 424, 431 (Chk. 2003).
[11 FSM Intrm. 426]
 
Courts ) Recusal
     When the communications in question were not extrajudicial, the courts impartiality cannot be reasonably questioned because the government made ex parte applications it is allowed to make under the applicable law. This therefore cannot be a ground for recusal. FSM v. Wainit, 11 FSM Intrm. 424, 431-32 (Chk. 2003).
 
Courts ) Recusal
      A charge of appearance of partiality must first have a factual basis and recusal is then appropriate only if a disinterested reasonable person who knows all the circumstances would harbor doubts about the judges impartiality. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judges impartiality. While the trial judge has a range of discretion in making this determination, he cannot use a standard of mere suspicion. FSM v. Wainit, 11 FSM Intrm. 424, 432 (Chk. 2003).
 
Courts ) Recusal
      When a party has not shown a factual basis to reasonably question the judges impartiality, but only raised a mere suspicion, and when he has not shown a factual basis for a claim of bias or prejudice; and when he cannot call the current judge as a witness to testify about his judicial acts; and when even the combination of these would not cause a reasonable, disinterested person to harbor doubts about the judges impartiality, the court can find no basis upon which to grant the motion to recuse. FSM v. Wainit, 11 FSM Intrm. 424, 432 (Chk. 2003).
 
Courts ) Recusal
     The fact that the same judge hears different cases involving the same party or parties or related issues does not automatically result in an appearance of partiality under 4 F.S.M.C. 124(1). FSM v. Wainit, 11 FSM Intrm. 424, 432 (Chk. 2003).
 
Courts ) Recusal
     In the absence of a showing of any actual partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge properly meets his obligation to hear the case. FSM v. Wainit, 11 FSM Intrm. 424, 432 (Chk. 2003).
 
Search and Seizure
     As long as probable cause still exists, it is generally accepted that a warrant need only be executed within a reasonable time after its issuance, notwithstanding the presence of "forthwith" language in the warrant. FSM v. Wainit, 11 FSM Intrm. 424, 432 (Chk. 2003).
 
Search and Seizure
     To "execute" a search warrant does not mean a fully completed search but to "execute" is in that instance synonymous with to serve a search warrant. FSM v. Wainit, 11 FSM Intrm. 424, 433 (Chk. 2003).
 
Search and Seizure
      Even if a search warrant was valid for execution only until 4 p.m., on September 5, 2002, the government having executed, that is served, the search warrant and begun its search before 4 p.m. on September 5th, could have continued its search after 4 p.m. on the 5th until done, even if it ran over onto the 6th. The court does not see much difference between that and securing the site with police present inside to resume physically searching the next morning. FSM v. Wainit, 11 FSM Intrm. 424, 433 (Chk. 2003).
 
[11 FSM Intrm. 427]
 
Search and Seizure
     The historical reason for restricting searches to daytime hours was that invasion of private premises in the small hours of the night and abrupt intrusion upon sleeping residents in the dark was more likely to create terror that precipitated violence. That reason does not apply to a search started in daytime that continues after dark. FSM v. Wainit, 11 FSM Intrm. 424, 433 (Chk. 2003).
 
Search and Seizure
     Normally, a search warrants validity is brought into question by a motion to suppress the evidence seized as a result of the questioned warrant. FSM v. Wainit, 11 FSM Intrm. 424, 434 (Chk. 2003).
 
Constitutional Law ) Interpretation; Search and Seizure
     The search and seizure provision of the FSM Constitutions Declaration of Rights is similar to and drawn from a provision in the U.S. Constitutions Bill of Rights, and when a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, U.S. authority may be consulted to understand its meaning. FSM v. Wainit, 11 FSM Intrm. 424, 434 (Chk. 2003).
 
Constitutional Law ) Interpretation
     The similarities of the FSM and the U.S. Constitutions mandate that the FSM Supreme Court will give particular consideration to U.S. constitutional analysis at the time of the Micronesian Constitutional Convention and the Constitutions adoption. FSM v. Wainit, 11 FSM Intrm. 424, 434 (Chk. 2003).
 
Search and Seizure
     Whoever suffers the imposition of an unlawful police search has the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial by the exclusionary rule and that damage remedies are available for violations of constitutional rights stemming from either an unlawful search or arrest. Both these remedies are present in the FSM. FSM v. Wainit, 11 FSM Intrm. 424, 435 (Chk. 2003).
 
Criminal Law and Procedure ) Defenses; Search and Seizure
     The reasoning behind the principle barring physical resistance to an invalid search warrant is that while society has an interest in securing for its members the right to be free from unreasonable searches and seizures, society also has an interest in the orderly settlement of disputes between citizens and their government and it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes particularly when a proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the warrants execution at the place of search. This reasoning resonates even more strongly in Micronesia, where society has customarily prized peaceful and orderly resolution of disputes much higher than in the United States. FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003).
 
Criminal Law and Procedure ) Defenses; Search and Seizure
     At the time the FSM Constitution was framed and adopted, the prevailing U.S. constitutional analysis of its constitutional search and seizure provision, which the FSM constitutional provision was modeled after, was that persons had no right to resist a search warrant even if that warrant was invalid. FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003).
 
Constitutional Law ) Interpretation
     Two old (1937 and 1924) cases that do not reflect U.S. constitutional analysis and practice at the time the FSM Constitution was drafted and adopted in the last half of the 1970s cannot be a basis for an FSM constitutional analysis of provisions adopted from and similar to a provision in the U.S.
 
[11 FSM Intrm. 428]
 
Constitutions Bill of Rights when those cases differ significantly from the constitutional analysis current in the 1970s. FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003).
 
Search and Seizure
     Process "void on its face" usually means process that the court did not have jurisdiction to issue or that was in excess of its jurisdiction. Since the FSM Supreme Court has the jurisdiction to issue search warrants anywhere in the FSM, and the island of Udot is within the FSMs territorial jurisdiction, and on September 4, 2002, the court had jurisdiction to issue a search warrant that would be valid on September 6, 2002, a search warrant used on Udot on September 6, 2002 was not void on its face. FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003).
 
Criminal Law and Procedure ) Defenses; Search and Seizure
     A defective search warrant is not a defense to a prosecution for resisting the defective warrant. FSM v. Wainit, 11 FSM Intrm. 424, 436 (Chk. 2003).
 
Constitutional Law ) Judicial Guidance Clause; Criminal Law and Procedure ) Defenses; Search and Seizure
     Under FSM constitutional jurisprudence, a person has no right, with some possible narrow exception, to resist a court-issued search warrant even if that search warrant turns out to be invalid. A persons remedies for being subjected to a search with an invalid search warrant are the suppression of any evidence seized, and, in the proper case, a civil suit for damages. The self-help of resistance is not a remedy and because of the Micronesian customary preference for the peaceful resolution of disputes, this conclusion is consistent not only with the FSM Constitution, but also with the social configuration of Micronesia as is required by the Constitutions Judicial Guidance Clause. FSM v. Wainit, 11 FSM Intrm. 424, 436-37 (Chk. 2003).
 
Criminal Law and Procedure ) Defenses; Search and Seizure
      The issue of a search warrants validity is not a central, or even major issue in a case of resisting a search. It is not an available defense. FSM v. Wainit, 11 FSM Intrm. 424, 437 (Chk. 2003).
 
* * * *

COURTS OPINION

MARTIN G. YINUG, Associate Justice:

     This comes before the court on defendant Tadashi Wainits Motion for Reconsideration or in the Alternative Motion to Recuse Justice, with supporting affidavit, filed October 14, 2002; his Notice of Errata, filed the same day; the governments Response to Motion for Reconsideration or Recusal, filed November 12, 2002; Wainits Reply Brief in Support of Motion for Reconsideration or in the Alternative Motion to Recuse Justice, filed November 27, 2002; and the governments Surreply to Defendants Reply Brief in Support of Motion for Reconsideration or in the Alternative Motion to Recuse Justice, filed December 9, 2002. Neither of the other defendants filed any papers in regard to these. Oral argument was held on February 14, 2003. Both Wainit and the government filed supplemental briefs on February 19, 2003.
 
     Wainits motion asks that the court reconsider its October 3, 2002 order concerning the search warrants validity or, in the alternative, that the trial judge recuse himself. Both the motion and its alternative are denied. The courts reasoning follows.

[11 FSM Intrm. 429]

I. "Alternative" Motion to Recuse

      At oral argument and in his supplemental brief, Wainit asked that the alternative motion to recuse be ruled on first, and that, if granted, then the motion to reconsider would not be ruled upon, but left for the next judge to decide. This approach is proper even though the motion to recuse is termed an "alternative" because, except for purely procedural or housekeeping matters, once a motion to recuse has been filed, it must be ruled on and reasons given before the judge may proceed further. 4 F.S.M.C. 124(6); see also Ting Hong Oceanic Enterprises v. Trial Division, 7 FSM Intrm. 642, 643 (App. 1996) (writ of prohibition issued to prevent judge from proceeding further until reasons given for denying recusal).

     Wainit cites several grounds for recusal. He asserts that the judge has personal knowledge concerning a disputed evidentiary fact; he claims that the judge is a material witness concerning the signing and execution of the search warrant; that this "personal knowledge" can lead to personal bias or prejudice; and that the circumstances are such that the judges impartiality might reasonably be questioned.

      The government opposes the motion on the ground that when the factual basis for a judge to recuse himself does not exist, the judge has an obligation, under his oath of office, to serve. The government contends that there are no facts to show bias or prejudice or from which the judges impartiality might reasonably be questioned.

A. "Disputed Evidentiary" Fact and Judge As Potential Witness

     Wainit urges as one of the grounds for recusal that the judge has personal knowledge of disputed evidentiary facts in this case, and that the case should therefore be assigned to another judge, after which the current judge could then be called as a witness. The court was not present when any of the events involving the defendants and the search warrants use took place. The court has no extrajudicial knowledge of those events. The courts only involvement was signing and issuing the search warrant. Wainit does not dispute that the court issued the search warrant. He disputes only its validity on September 6, 2002. Apparently, the "disputed facts" Wainit has in mind, and about which he wants the judge to testify, are the warrants issuance and its validity on September 6, 2002.

      Generally, "[n]either counsel nor a party may seek recusal of a judge by announcing that they intend to call the judge as a witness." United States v. Edwards, 39 F. Supp. 2d 692, 705 (M.D. La. 1999) (citing United States v. Diana, 605 F.2d 1302 (4th Cir. 1979); United States v. Cross, 516 F. Supp. 700 (M.D. Ga. 1981)). In Edwards, the defendant contended the judge should be disqualified because he intended to call the judge as a witness concerning the selection process of the grand jury that had indicted him. This ground for recusal was denied because "a judge is not required to explain any of his decisions nor divulge reasons which may have motivated his actions or opinion," and because the facts and evidence sought were available from other sources. Id. at 705-06. The general rule is that "since a court speaks only through its journal, a judge cannot testify about the meaning or intent of his decision in a case or explain aspects of the decision further." Hirschberger v. Silverman, 609 N.E.2d 1301, 1306 (Ohio Ct. App. 1992) (plaintiff sought to have judge testify there was discrepancy between final judgment and what he intended). See also Noey v. Bledsoe, 978 P.2d 1264, 1274 (Alaska 1999) (not error for judge not to recuse herself when party had listed her as a trial witness to testify about her rulings in related proceedings, when judge replied party could introduce that evidence without her testimony, and when no effort was later made to admit the proposed evidence or disqualify the judge). Nor can a judge be called to testify as to secret or unexplained reasons which led him to decide a case in a certain manner. See generally Timothy E. Travers, Annotation, Judge as a Witness in Cause Not on Trial Before Him, 86 A.L.R.3d 633, 667-68 (1978).

[11 FSM Intrm. 430]

      "Attempts to disqualify judges by indicating that the judge will be called as a witness are not favored and are rarely granted. Such an easy method of disqualifying a judge should not be encouraged or allowed." Edwards, 39 F. Supp. 2d at 706. "The prohibition against compelling the testimony of a judge is reflected in a long-standing principle . . . that a court speaks only through its orders." State ex rel. Kaufman v. Zakaib, 535 S.E.2d 727, 736 (W. Va. 2000).

     In Zakaib, the court issued a writ of prohibition to prevent the deposition of a judge concerning why he made certain rulings in a divorce case. The Zakaib court held that "judicial officers may not be compelled to testify concerning their mental processes employed in formulating official judgments or the reasons that motivated them in their official acts." Id. at 735. This ban on judges testifying has limits. "[T]hose limits are that a judge must be acting as a judge, and that it is information regarding his or her role as a judge that is sought." Id. at 735.

     That is the circumstance in the present case ) it is the judges actions as a judge that Wainit would have the judge testify about. But because a judge is not a potential witness concerning his issuance of a search warrant, this cannot be a ground to grant the recusal motion.

B. Whether Impartiality Might Reasonably Be Questioned

     At oral argument, Wainit focused on the ground of appearance of impropriety as the main reason to grant his recusal motion. The applicable statute requires that a "Supreme Court justice shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 4 F.S.M.C. 124(1).

     1. "Sua Sponte" Ruling on Search Warrants Validity

     Wainit contends that, during his September 26, 2002 initial appearance in this matter, the court sua sponte raised the issue of the search warrants validity. The motion cites this as an example of why the judges impartiality might reasonably be questioned. This points factual accuracy should be addressed before proceeding to the motions merits.

     Wainits contention that the court sua sponte raised the issue of the search warrants validity during his initial appearance on September 26, 2002, mischaracterizes what transpired during that hearing. The issue was first raised by Wainits counsel while he cross-examined the governments witness, Ms. Wiehe. Tr. at 67:22-25. The government objected to counsels question concerning the warrants validity. Id. at 68:1-9. The court then stated that it would get to that issue and Wainits motion for a preliminary hearing in due course. Id. at 68:13-15. Counsel replied that he thought it important to ask Ms. Wiehe if she was in the possession of an expired search warrant. Id. at 68:16-20. The government again objected that this was getting off the issue. Id. at 68:21-25. The court then reminded Wainits counsel that what was before the court was the issue of Wainits possible pretrial release or detention. Id. at 69:1-5. Wainits counsel protested that he wanted to continue this line of questioning. Id. at 69:6-8.

      At that point, the court inquired if the best way to approach it would be to move on to the issue of the search warrants validity and asked Wainits counsel if that is what he wanted. Id. at 69:10-15. The government preferred not to move onto another topic before finishing the matter of release. More discussion ensued as to exactly what this would entail. The government pointed out that it had not had an opportunity to respond to Wainits motion. The court stated that it was prepared to rule on it based on what Wainits counsel had provided. The government then waived its right to respond in writing. Id. at 71:24-25. After more discussion, the court pointed out that this was simply a legal argument so witnesses were not needed, and the parties could just argue it and the court would decide.

[11 FSM Intrm. 431]

Id. at 72:17-20. Wainits counsel agreed to that, id. at 72:21, and then counsel proceeded to make his argument.

     The court thus did not sua sponte raise the issue of the search warrants validity. The court only proceeded to that question after Wainits counsel had insisted on entering that area and the government had orally waived its right to oppose the motion in writing.

2. Court Rulings

     Wainit contends that the courts ruling on the search warrants validity, sua sponte or not, and its issuance of an arrest warrant for Wainit show that the courts impartiality might reasonably be questioned. At oral argument, Wainit questioned for the first time, the courts issuance of an arrest warrant for Wainit. Wainit contends that the warrant was issued in violation of 12 F.S.M.C. 210. The government contends that that statute does not apply because Ms. Wiehe sought the warrant as a victim, not as a prosecutor, and notes that she appears in the information only as a victim, and neither signed it nor appeared representing the government in any proceeding in this case.

     However, whether the arrest warrant was properly issued is not before the court at this time. If Wainit wishes to raise this issue, he may file such motions as he is advised and the court will consider it at that time. There, as yet, has been no proper challenge to, and the court has made no ruling on, the arrest warrants validity.

     However, a judges statements and rulings made in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1) (appearance of partiality). FSM v. Ting Hong Oceanic Enterprises, 7 FSM Intrm. 644, 649 (Pon. 1996). Even adverse rulings made by a judge in the course of judicial proceedings do not provide grounds for disqualification under 4 F.S.M.C. 124(1). Id.; FSM v. Skilling, 1 FSM Intrm. 464, 484 (Kos. 1984) (a judges adverse rulings in a case do not create grounds for disqualification from that case); see also Damarlane v. United States, 7 FSM Intrm. 52, 54 (Pon. S. Ct. App. 1995) (recusal ordinarily may not be predicated on the judges rulings in the case or in related cases, nor on a demonstrated tendency to rule in a particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench). The courts oral or written rulings on the search warrants validity or its issuance of the arrest warrant therefore cannot be basis upon which its impartiality may be reasonably questioned and recusal granted.

3. Ex Parte Communications

     Wainit contends that there were ex parte communications between the government and the court and that these communications create an appearance of impropriety from which the courts impartiality may reasonably be questioned. However, none of these communications were extrajudicial. All were authorized by law, and have since been revealed by the court and the government. Ex parte applications are allowed (and are usual) for warrant applications or motions to file under seal. Those were the governments only ex parte communications with the court. No inference of partiality may be drawn from them.

     The type of partiality at which 4 F.S.M.C. 124(1) is aimed is extrajudicial, that is, resulting from information received by the judge outside of the judicial proceeding or proceedings in which the judge has participated. Hartman v. Bank of Guam, 10 FSM Intrm. 89, 96 (App. 2001); Ting Hong Oceanic Enterprises v. Supreme Court, 8 FSM Intrm. 1, 7 (App. 1997) (general rule is that the disqualifying factors must be from an extrajudicial source); In re Main, 4 FSM Intrm. 255, 260 (App. 1990); Youngstrom v. Youngstrom, 5 FSM Intrm. 385, 387 (Pon. 1992). The communications in question were not extrajudicial. The courts impartiality cannot be reasonably questioned because the

[11 FSM Intrm. 432]

government made applications it is allowed to make under the applicable law. This therefore cannot be a ground for recusal.

C. Summary

     A charge of appearance of partiality must first have a factual basis and recusal is then appropriate only if a disinterested reasonable person who knows all the circumstances would harbor doubts about the judges impartiality. Ting Hong Oceanic Enterprises, 8 FSM Intrm. at 6. The facts must provide what an objective, knowledgeable member of the public would find to be a reasonable basis for doubting the judges impartiality. While the trial judge has a range of discretion in making this determination, he cannot use a standard of mere suspicion. Id. at 7.

     Wainit has not shown a factual basis to reasonably question the courts impartiality. He has only raised a mere suspicion. That is not enough. Nor has he shown a factual basis for a claim of bias or prejudice. Nor can he call the current judge as a witness to testify about his judicial acts. It may be true, as Wainit asserts, that there may be times when each of the grounds raised are insufficient to reasonably question the trial judges impartiality, but the combination of all would cause a reasonable, disinterested person to harbor doubts about the judges impartiality. Id. at 10. This, however, is not such a case.

     Accordingly, the court can find no basis upon which to grant the motion to recuse. The court further notes that the fact that the same judge hears different cases involving the same party or parties or related issues does not automatically result in an appearance of partiality under 4 F.S.M.C. 124(1). Hartman, 10 FSM Intrm. at 97 & n.5. In the absence of a showing of any actual partiality or extrajudicial bias under 4 F.S.M.C. 124(1), a judge properly meets his obligation to hear the case. Id. at 98. Since Wainit has neither shown any actual bias or prejudice or that the courts impartiality may reasonably be questioned, the court concludes that it must honor its obligation to serve. The motion to recuse is therefore denied.

II. Motion to Reconsider Search Warrants Validity

      Having denied the alternative motion to recuse, the court must now turn to Wainits motion to reconsider. Wainit asks that the court reconsider its oral ruling on September 26 and its written memorandum enteresd October 3, 2002. Wainit contends that the court has been interpreting the search warrants language subjectively, that is in light of what the court intended the language to mean, instead of objectively, that is, in light of what the search warrants language actually says. Wainit contends that the language actually says that the search warrant was valid when issued on September 4, 2002 until 4 p.m. of the next day.

A. Search Warrants Validity

     Wainit points to the "forthwith" language to support its argument that the search warrant validity started on September 4, 2002, the date it was signed and entered. However, as long as probable cause still exists, "[i]t is generally accepted that a warrant need only be executed within a reasonable time after its issuance, notwithstanding the presence of 'forthwith language in the warrant." United States v. Bedford, 579 F.2d 650, 655 (3d Cir. 1975) (interpreting a rule similar to FSM Crim. R. 41 and

[11 FSM Intrm. 433]

12 F.S.M.C. 306) (emphasis in original); see United States v. Nepstead, 424 F.2d 269, 271 (9th Cir. 1970) ("forthwith" means anytime within the ten days provided by rule provided that probable cause still exists).

     It is undisputed that the government executed the search warrant at Wainits home on Udot on September 5, 2002. When it did not finish the search by 4 p.m. that day, it secured the premises, left police there, and returned to complete the search the next morning. In this motion, Wainit does not dispute the search warrants validity on September 5, 2002. His contention is that it expired by its own terms at 4:00 p.m. that day and was invalid on September 6, 2002, when the government tried to finish its search. The government counters that if probable cause to search was present on the 5th, it was still present on the 6th because it had secured the premises.

      Wainit contends that the search warrant was, by its wording, valid only for September 5, 2002 but that the search warrant was executed on September 5, and again on September 6, 2002. He contends that since, in his view, the search warrant was required to be executed on September 5, the search (or attempted continued search) on September 6 was pursuant to an invalid warrant. An analogous argument was made in State v. Callaghan, 576 P.2d 14 (Or. Ct. App.), review denied, 284 Or. 1 (1978). In Callaghan, the search warrant was explicitly for one day only and "provided that it was to be executed between 7 a.m. and 10 p.m. on February 24, 1976." Id. at 17. The search warrant was served and the search started on the morning of February 24, 1976 but continued past 10 p.m. that evening and on until 12:30 a.m. of February 25.

     The defendant argued that by the warrants (and the statutes) terms requiring execution between 7 a.m. and 10 p.m., the search had to be completed by 10 p.m., February 24th and not just served before then, that the warrant was therefore invalid thereafter, and that, as a result, all evidence seized on February 25th and after 10 p.m. on February 24th had to be suppressed. Id. The Callaghan court rejected that argument. It held that "execute" did not mean a fully completed search but that "execute," was in that instance "synonymous with 'serve." Id. at 18. See also United States v. Young, 877 F.2d 1099, 1104-05 (1st Cir. 1989) (search begun daytime on Sunday pursuant to warrant commanding "immediate search" "in the daytime" could continue through Sunday night and on through Monday night); United States v. Burgard, 551 F.2d 190, 193 (8th Cir. 1977) (searches which begin during daytime and continue into night do not violate rule requiring daytime search); United States v. Woodring, 444 F.2d 749, 751 (9th Cir. 1971) (requirement of daylight service of search warrant satisfied when officers initiated search during daylight); United States v. Joseph, 278 F.2d 504, 505 (3d Cir. 1960) (search begun after 4 p.m. and not finished until after 10 p.m. was a reasonable continuation of search begun in daytime under warrant authorizing a daytime search), cert. denied, 364 U.S. 823 (1960).

     Thus, under Callaghan, even if Wainits contention were correct and the search warrant was valid for execution only until 4 p.m., on September 5, 2002, the government having executed, that is served, the search warrant and begun its search before 4 p.m. on September 5th, could have continued its search after 4 p.m. on the 5th until done, even if it ran over onto the 6th. The court does not see much difference between that and securing the site with police present inside to resume physically searching the next morning, as was apparently done. The historical reason for restricting searches to daytime hours, see FSM Crim. R. 41(c)(1); 12 F.S.M.C. 306(2); 12 TTC 106; see also U.S. Fed. R. Crim. P. 41(c)(1), was that invasion of private premises in the small hours of the night and abrupt intrusion upon sleeping residents in the dark was more likely to create terror that precipitated violence, see, e.g., Callaghan, 576 P.2d at 18; Young, 877 F.2d at 1104. That reason does not apply to a search started in daytime that continues after dark.

     But apart from these considerations, the court concludes, for the reasons explained below, that

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it is not fruitful to continue analysis of the search warrants validity in the context of this prosecution.

B. Importance of Search Warrants Validity

      The issue of the search warrants validity did not arise in this case in the usual way. Normally, a search warrants validity is brought into question (as should be evident from the above description of Callaghan) by a motion to suppress the evidence seized as a result of the questioned warrant. That is not the case here. Wainit has not sought suppression, in this case, of any evidence seized on September 6th. He only asks that the court rule that the search warrant was invalid on that day. This inexorably leads the court to the question of whether the issue of the search warrants validity is relevant to this case.

     Wainit contends that the issue of whether the search warrant was valid on September 6, 2002 is central to his case because he asserts that if it was not valid on September 6th, then he had a right to resist the governments attempted search on that date. In support of this contention he cites two cases, Sparks v. United States, 90 F.2d 61 (6th Cir. 1937); Dovel v. United States, 299 F. 948 (7th Cir. 1924), for the proposition that it is not illegal to resist an invalid search warrant.

     The government disagrees. It contends that whether the search warrant was valid is irrelevant to this prosecution because even an invalid search warrant does not justify the illegal acts ) kidnaping, threats and improper influence in official matters, and resisting arrest or other law enforcement ) which Wainit is accused of committing on September 6, 2002.

     The present case, in Wainits view, involves whether the governments search on September 6th was constitutional (that is, with a valid warrant), and if it was not, what rights and remedies Wainit had. Wainit contends that he has a common law right to resist an invalid search warrant. The government contests this.

     The search and seizure provision of the FSM Constitutions Declaration of Rights, FSM Const. art. IV,  5, is similar to and drawn from a provision in the U.S. Constitutions Bill of Rights, U.S. Const. amend. IV. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001); FSM v. Rodriquez, 3 FSM Intrm. 385, 386 (Pon. 1988); Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985). When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, U.S. authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000); FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999); Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986); Tosie v. Tosie, 1 FSM Intrm. 149, 154 (Kos. 1982). The similarities of the FSM and the United States Constitutions mandate that the FSM Supreme Court will give particular consideration to United States constitutional analysis at the time of the Micronesian Constitutional Convention and the Constitutions adoption. Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990); Laion v. FSM, 1 FSM Intrm. 503, 523 (App. 1984); FSM v. Skico, Ltd. (II), 7 FSM Intrm. 555, 556-57 (Chk. 1996); Suldan v. FSM (II), 1 FSM Intrm. 339, 345 (Pon. 1983); see also Aisek v. Foreign Inv. Bd., 2 FSM Intrm. 95, 98 (Pon. 1985).

     In United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971), cert. denied, 402 U.S. 1008 (1971), the court held that

The development of legal safeguards in the Fourth, Fifth, Sixth and Fourteenth Amendment fields in recent years has provided the victim of an unlawful search with realistic and orderly legal alternatives to physical resistance. Indeed, since the validity of written process is readily susceptible to judicial review, it is doubtful whether resistance to written process can ever be justified today, absent a showing of transparent invalidity.

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This argument is particularly forceful when applied to the execution of search warrants, where resistance often leads to violence and physical injury. A public officer supported by written process has a right to expect that citizens will respond peaceably, that neither his life nor those of other parties will be endangered, and that any dispute will be resolved through legal means.

Id. at 390 (footnote omitted). The Ferrone court added that "[w]e do not, however, mean to suggest that the 'transparent invalidity exception applies to the rule we lay down today in connection with the execution of search warrants. It does not." Id. at n.20. The rule laid down by the Ferrone court was that "a person does not have a right to forcibly resist the execution of a search warrant by a peace officer or government agent, even though that warrant may subsequently be held to be invalid." Id. at 390. But the court also noted that it did not decide whether there were "some unlawful searches, with or without warrant, the circumstances of which would be so provocative to a reasonable man that the seriousness of the offense of resistance ought to be mitigated as a result of such provocation." Id. at n.19(c).

     In United States v. Peifer, 474 F. Supp. 498 (E.D. Pa. 1979) the defendant was tried for obstructing and resisting a U.S. marshal in his execution of a search warrant which the defendant claimed was invalid. The court refused to hear testimony concerning the validity of the search warrant. Id. at 504. On a motion for judgment notwithstanding the verdict or alternatively for a new trial, the court ruled that the search warrants validity was irrelevant and disallowing the testimony was proper. Id. at 505. It held that:

A defective [search] warrant is no defense to a charge of resisting execution thereof. That issue is resolved through a later legal mechanism, the suppression hearing. Once a court with proper jurisdiction over the subject matter and person issues an order, it "must be obeyed by the parties until it is reversed." Absent a showing of bad faith, unreasonable force or provocative conduct, defendant has no right to resist execution of a warrant, even a defective one.

Id. at 504 (citations omitted); see also United States v. Gibbons, 331 F. Supp. 970, 971-72 (D. Del. 1971) (invalidity of search warrant not valid defense to obstruction of justice charge for destroying evidence during search). In State v. Hatton, 568 P.2d 1040, 1046 (Ariz. 1977), the court held that "even if there were a right to resist an unlawful arrest . . . there is no similar right to resist a search warrant later found to be illegal." In Brown v. Anchorage, 680 P.2d 100, 104 (Alaska Ct. App. 1984), the court stated that "a person may be prosecuted for resisting a constitutionally unlawful but peaceful search or seizure unless the officer uses unnecessary force or is not readily identifiable as a police officer." The Brown court also noted that "[a] majority of jurisdictions are in agreement with this rule." Id.

     The remedy for a victim of an illegal search was not the self-help of resistance. "Resistance to such authority [to search and seize] by self-help is not recognized in courts of law." United States v. Woodring, 536 F.2d 598, 600 (5th Cir. 1976). Whoever

suffers the imposition of an unlawful police search has the assurance that any evidence so acquired is rendered inadmissible in a subsequent criminal trial by the exclusionary rule. . . . And in any event damage remedies are available in the federal courts for violations of constitutional rights stemming from either an unlawful search or arrest.

United States ex rel. Kilheffer v. Plowfield , 409 F. Supp. 677, 680-81 (E.D. Pa. 1976). These remedies are present in the FSM. For the exclusionary rule in the FSM, see, e.g., FSM v. Inek, 10 FSM Intrm.

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263, 265 (Chk. 2001); FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998); FSM v. Tipen, 1 FSM Intrm. 79, 92 (Pon. 1982); Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985); 12 F.S.M.C. 312(1). On the damages remedy in the FSM, see, e.g., Liwi v. Finn, 5 FSM Intrm. 398 (Pon. 1992); Jano v. King, 5 FSM Intrm. 388 (Pon. 1992).

     The reasoning behind the principle barring physical resistance to an invalid search warrant has been widely cited:

     Society has an interest in securing for its members the right to be free from unreasonable searches and seizures. Society also has an interest, however, in the orderly settlement of disputes between citizens and their government; it has an especially strong interest in minimizing the use of violent self-help in the resolution of those disputes. We think a proper accommodation of those interests requires that a person claiming to be aggrieved by a search conducted by a peace officer pursuant to an allegedly invalid warrant test that claim in a court of law and not forcibly resist the execution of the warrant at the place of search.

Ferrone, 438 F.2d at 390. This court concludes that this reasoning resonates even more strongly in Micronesia, where society has customarily prized peaceful and orderly resolution of disputes much higher than in the United States.

      Thus, at the time the FSM Constitution was framed and adopted, the prevailing U.S. constitutional analysis of its constitutional search and seizure provision, which the FSM constitutional provision was modeled after, was that persons had no right to resist a search warrant even if that warrant was invalid. See generally 1 Wayne R. LaFave, Search and Seizure, a Treatise on the Fourth Amendment  1.13(b) (3d ed. 1996). The two old (1937 and 1924) cases cited by Wainit do not reflect U.S. constitutional analysis and practice at the time the FSM Constitution was drafted and adopted in the last half of the 1970s. Those cases cannot be a basis for an FSM constitutional analysis of provisions adopted from and similar to a provision in the U.S. Constitutions Bill of Rights when they differ significantly from the constitutional analysis current in the 1970s.

     Wainit nevertheless asserts that there is an exception for search warrants void on their face. But process "void on its face" usually means process that the court did not have jurisdiction to issue or that was in excess of its jurisdiction. See In re Hofmanns Estate, 318 P.2d 230, 236 (Mont. 1957); Montanaro v. State, 249 N.Y.S.2d 365, 369 (N.Y. Ct. Cl. 1964) (irregularity of process does not mean it is void on its face) (quoting Fischer v. Langbein, 8 N.E. 251, 252 (N.Y. 1886)). It is undisputed that the FSM Supreme Court has the jurisdiction to issue search warrants anywhere in the FSM, that the island of Udot is within the FSMs territorial jurisdiction, and that on September 4, 2002, the court had jurisdiction to issue a search warrant that would be valid on September 6, 2002. The search warrant was thus not "void on its face."

     In his reply brief, Wainit makes a number of arguments from which he concludes that the warrant is "defective" or "defective on its face." As stated above, a defective search warrant is not a defense to a prosecution for resisting the defective warrant.

     The court therefore concludes that, under FSM constitutional jurisprudence, a person has no right, with some possible narrow exception not now alleged to have occurred here, to resist a court-issued search warrant even if that search warrant turns out to be invalid. A persons remedies for being subjected to a search with an invalid search warrant are the suppression of any evidence seized, and, in the proper case, a civil suit for damages. The self-help of resistance is not a remedy. Furthermore, because of the Micronesian customary preference for the peaceful resolution of disputes, this

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conclusion is consistent not only with the FSM Constitution, but also with the social configuration of Micronesia as is required by the Constitutions Judicial Guidance Clause, FSM Const. art. XI,  11. Thus, the issue of the search warrants validity is not a central, or even major issue in this case. It is not an available defense. The motion to reconsider therefore must be, and is, denied.

     The court has, unfortunately, allowed itself earlier to be side-tracked into ruling on an issue (the search warrants validity) that has turned out not to be relevant to this case. This, in retrospect, the court regrets.

III. Conclusion

      Accordingly, the motions to recuse and to reconsider are denied. All parties shall submit, no later than April 21, 2003, their proposed schedule for further proceedings in this case.

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