KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Tosie
12 FSM Intrm. 296 (Kos. S. Ct. Tr. 2004)

[12 FSM Intrm. 296]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
MADISON O. TOSIE,
Defendant.
 
CRIMINAL CASE NO. 109-03
 
ORDER DENYING MOTION TO DISMISS;
ORDER SETTING TRIAL DATE
 
Aliksa B. Aliksa
Associate Justice
 
Hearing: January 15, 2004
Decided: January 20, 2004

APPEARANCES:

For the Plaintiff:                       Edwin Mike
                                                 Paliknoa Welly
                                                 State Prosecutors
                                                 Office of the Kosrae Attorney General
                                                 P.O. Box 870
                                                 Lelu, Kosrae FM 96944
 
For the Defendant:                 Sidney Skilling
                                                Office of the Public Defender
                                                P.O. Box 245
                                                Lelu, Kosrae FM 96944

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HEADNOTES

Criminal Law and Procedure ) Dismissal; Criminal Law and Procedure ) Prosecutors
     It is the prosecutor’s discretion to initiate, continue, or terminate a particular criminal prosecution. However, once prosecution has been initiated, the court also has responsibility to assure that all actions taken thereafter are in the public interest. Public interest requires the court to examine the grounds for a dismissal request. Kosrae v. Tosie, 12 FSM Intrm. 296, 298 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Dismissal
     Public interest requires the court to examine the grounds for dismissal request. The court may dismiss a criminal case on grounds that the court lacks jurisdiction over the crimes charged. The court may also dismiss a criminal case if there is insufficient evidence to obtain a conviction or if there is a lack of probable cause to believe that a crime has been committed by the defendant. Kosrae v. Tosie, 12 FSM Intrm. 296, 298 (Kos. S. Ct. Tr. 2004 ).
 
[12 FSM Intrm. 297]
 
Criminal Law and Procedure ) Arrest and Custody; Search and Seizure
     Under Kosrae statute, following commission of an offense a police officer who has reasonable grounds to believe that a particular person has committed the offense may arrest the person. This establishes the standard for the arrest of a person, but it does not establish the standard for the police to conduct an investigatory stop of a vehicle. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).
 
Constitutional Law ) Interpretation; Criminal Law and Procedure ) Arrest and Custody
     When there are no decisions by FSM courts which discuss which standard applies to conducting an investigatory stop of a vehicle, the court may look to the law of the United States for guidance. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Arrest and Custody; Search and Seizure
     Reasonable suspicion is required for police officers to make an investigatory stop of a vehicle. "Reasonable suspicion" is a particularized and objective basis for suspecting that a person is engaged in a criminal activity. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Arrest and Custody; Search and Seizure
     Generally, an anonymous tip is not sufficient justification for a stop by the police. Police need sufficient reasonable articulated suspicion. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Arrest and Custody; Search and Seizure ) Probable Cause
     A police officer may, as a general rule, consider any evidence in determining whether reasonable suspicion or probable cause exists. The information may be provided by an informer. Police should consider the underlying circumstances from which the informer drew his conclusion. Some of the underlying circumstances must show that the informant was reliable. However, evidence to establish reasonable suspicion or probable cause may be entirely based upon hearsay. The general rule is that virtually any evidence may be considered. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Arrest and Custody; Search and Seizure
     When an officer has made a warrantless arrest by relying upon a tip from an informant, the reviewing court will evaluate the tip based upon the totality of the circumstances, including the informant’s truthfulness and reliability, and the basis of his or her knowledge. Deficiency in one prong may be compensated for by a strong showing of the other. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Arrest and Custody; Search and Seizure
     Once the police have reasonable suspicion that the Defendant has committed a criminal offense, they may conduct an investigatory stop, which is a temporary stop to confirm or dispel the suspicion which initially induced the investigatory stop. Investigatory stops are based upon less than probable cause and are temporary in nature. The information gained at the investigatory stop is then used to confirm or dispel the initial suspicion, and then either arrest or release the defendant. Kosrae v. Tosie, 12 FSM Intrm. 296, 300 (Kos. S. Ct. Tr. 2004).
 
Search and Seizure ) Probable Cause
     Reasonable grounds or probable cause exist when factors and circumstance within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe an offense has been committed. For the offense of driving under the influence, these circumstances include odor of alcohol, results of the field sobriety tests, appearance and mannerism of intoxication, slurring of speech, and
 
[12 FSM Intrm. 298]

unsteady movement. Kosrae v. Tosie, 12 FSM Intrm. 296, 300 (Kos. S. Ct. Tr. 2004).
 
Criminal Law and Procedure ) Arrest and Custody; Criminal Law and Procedure ) Dismissal; Search and Seizure ) Probable Cause
     A criminal prosecution for driving under the influence will not be dismissed when the police officers had sufficient reasonable suspicion to conduct an investigatory stop of the defendant because the reasonable suspicion was supplied by an informant, whose identity, credibility, reputation and reliability were known. When at the investigatory stop, the police observed signs of the defendant’s alcohol impairment, these signs provided grounds for the police to administer the field sobriety tests to the defendant, and when the defendant failed two field sobriety tests, it gave the police reasonable grounds and probable cause for defendant’s commission of driving under the influence and probable cause to arrest the defendant. Kosrae v. Tosie, 12 FSM Intrm. 296, 300 (Kos. S. Ct. Tr. 2004).

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COURT’S OPINION

ALIKSA B. ALIKSA, Associate Justice:

     Defendant was arrested for driving under the influence on December 22, 2003. On December 23, 2003, Defendant was released on bail and the matter was set for trial. On December 30, 2003, Plaintiff filed a Notice of Nolle Prosequi and Motion to Dismiss the case. Defendant did not file any Opposition or other response to the Motion. Plaintiff’s Motion to Dismiss was heard on January 15, 2004. Edwin Mike and Paliknoa Welly, State Prosecutors, appeared for the Plaintiff. Defendant was represented by Sidney Skilling, Public Defender. Police Officers Joensin Tulensa and Stan Noda testified at the hearing. After hearing from both parties, consideration of the facts and the record in this matter and application of the law, I denied the Plaintiff’s Motion to Dismiss. This Order explains my decision and reasoning.

     Plaintiff, argues as the basis for its Motion, that the informant who called the police station to report the alleged conduct of the Defendant, was not witnessed by the informant. Plaintiff further argues that the police officers did not see any conduct of the Defendant that would establish probable cause to support the arrest and the charge of Driving Under the Influence, as made in the Information. On this basis, Plaintiff now seeks leave of court to dismiss the information in this case, pursuant to KRCrP Rule 48(a).

     The Court recognizes the discretion of the prosecutor to initiate, continue, or terminate a particular criminal prosecution. Nix v. Ehmes, 1 FSM Intrm. 114 (Pon. 1982); FSM v. Mudong, 1 FSM Intrm. 135 (Pon. 1982). However, once prosecution has been initiated, this Court also has responsibility to assure that all actions taken thereafter are in the public interest. FSM v. Ocean Pearl, 3 FSM Intrm. 87 (Pon. 1987). Public interest requires the Court to examine the grounds for the request for the dismissal. FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162 (Chk. 1995). The Court may dismiss a criminal case on grounds that that Court lacks jurisdiction over the crimes charged. See In re Extradition of Jano, 6 FSM Intrm. 93 (App. 1993). The Court may also dismiss a criminal case if there is insufficient evidence to obtain a conviction or if there is a lack of probable cause to believe that a crime has been committed by the defendant. FSM v. Cheida, 7 FSM Intrm. 633 (Chk. 1996); FSM v. Yue Yuan Yu No. 346, 7 FSM Intrm. 162 (Chk. 1995). This Court now examines the Plaintiff’s argument that it lacks probable cause to support the arrest and the charge of Driving Under the Influence made against the Defendant in the Information.

     Based upon the evidence received at the hearing, I find that the State received a telephone call

[12 FSM Intrm. 299]

from an informant on the night of December 22, who stated that the Defendant was drunk and driving the State owned vehicle assigned to the Public Auditor. The informant identified himself as the Governor Rensley A. Sigrah. Police Officer Joensin Tulensa received the telephone call at the police station and testified that the informant provided the following information regarding the Defendant: that the State vehicle assigned to the Public Auditor is on the road, being driven by Madison Tosie and that he was drunk. Governor Sigrah instructed the police to find the Defendant and the Public Auditor vehicle, and to take the State owned vehicle away from the Defendant. Based upon this information, the police dispatched a patrol vehicle with two police officers, who then stopped the Defendant, who was driving the State Government owned vehicle, on the public road, at Kosrlo, Lelu Municipality. When the police officers stopped the Public Auditor vehicle, the Defendant was driving the vehicle. The police officers approached the vehicle and smelled alcohol on the breath of the Defendant. Defendant was also slurring his speech. Also, when the police officers asked the Defendant questions in the Kosraean language, the Defendant answered the questions in the English language. Based upon these observations, the police officers then requested the Defendant to complete the Field Sobriety Tests. Defendant complied and failed two field sobriety tests. Defendant was then arrested for Driving under the Influence.

     Kosrae State Code, Section 17.1101(3) provides that: "Following commission of an offense a police officer who has reasonable grounds to believe that a particular person has committed the offense may arrest the person." Kos. S.C. § 17.1101(3) establishes the standard for the arrest of a person. This section does not establish the standard for the police to conduct an investigatory stop of a vehicle. This Court could not find any provisions in the Kosrae State Code which establish the standard for making an investigatory stop of a vehicle. This Court not find any decisions by courts of the Federated States of Micronesia which discuss which standard applies to conducting an investigatory stop of a vehicle. Therefore, the Court looks to the law of the United States for guidance. The United States Supreme Court has required "reasonable suspicion" for police officers to make an investigatory stop of a vehicle. "Reasonable suspicion" is a particularized and objective basis for suspecting that a person is engaged in a criminal activity. Ornelas v. United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996).

     Generally, an anonymous tip is not sufficient justification for a stop by the police. Police need sufficient "reasonable articulated suspicion." Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000). However, a police officer may, as a general rule, consider any evidence in determining whether reasonable suspicion or probable cause exists. Richard B. McNamara, Constitutional Limitation on Criminal Procedure, Arrest § 4.05, at 60 (1982). The information may be provided by an informer. Police should consider the underlying circumstances from which the informer drew his conclusion. Some of the underlying circumstances must show that the informant was reliable. Id. § 3.08. However, evidence to establish reasonable suspicion or probable cause may be entirely based upon hearsay. The general rule is that virtually any evidence may be considered. Id. § 3.10. It is undisputed that law enforcement in Kosrae State routinely relies upon informants and hearsay statements as evidence for conducting investigatory stops and for establishing probable cause for an arrest.

     Where an officer has made a warrantless arrest by relying upon a tip from an informant, the reviewing court will evaluate the tip based upon the totality of the circumstances, including the informant’s truthfulness and reliability, and basis of his or her knowledge. 5 Am. Jur. 2d Arrest § 45, at 696 (rev. ed. 1995). Deficiency in one prong may be compensated for by a strong showing of the other. Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 1453 (1983). Plaintiff argues that there was a deficiency in the one of the prongs: basis of the informant’s basis of knowledge. I conclude that any deficiency in the basis of the informant’s knowledge is compensated for by the strong showing in the informant’s truthfulness, reliability, credibility, position and reputation.[12 FSM Intrm. 300]

      Here, the police made an investigatory stop of the Defendant by relying upon a tip from an informant. The informant was the Governor of Kosrae State, Rensley A Sigrah. I conclude that based upon the totality of circumstances, the informant’s position, status, reputation, reliability and basis of knowledge provided reasonable suspicion for the police officers to stop the Defendant. The information provided by the informant gave reasonable suspicion to the police that the Defendant had committed the offense of driving under the influence, even though the police officers did not personally see the violation of driving under the influence.

     Once the police have reasonable suspicion that the Defendant has committed a criminal offense, they may conduct an investigatory stop, which is a temporary stop to confirm or dispel the suspicion which initially induced the investigatory stop. 5 Am. Jur. 2d Arrest § 5, at 669 (rev. ed. 1995). Investigatory stops are based upon less than probable cause and are temporary in nature. United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985). The information gained at the investigatory stop is then used to confirm or dispel the initial suspicion, and then either arrest or release the defendant.

     After the Defendant was stopped by the police, the police observed the smell of alcohol on the Defendant’s breath. The police also observed that the Defendant was slurring his words when speaking to the police. Finally, the police observed that when they asked the Defendant questions in the Kosraean language ) the Defendant’s native language ) the Defendant answered the police officers in the English language. The police officers, based upon their experience in observing and dealing with persons impaired by alcohol consumption, concluded that these observations and the Defendant’s conduct were signs and symptoms of impairment due to alcohol consumption. Based upon the Defendant’s signs of impairment by alcohol consumption, the police officers had reasonable suspicion to detain and request the Defendant to complete the Field Sobriety Tests. Defendant’s failure of two Field Sobriety Tests then gave the police officers reasonable grounds and probable cause of the commission of the criminal offense of driving under the influence, and grounds for arrest of the Defendant, pursuant to Kosrae State Code, Section 17.1101(2)(b). See 5 Am. Jur. 2d Arrest § 67, at 717 (rev. ed. 1995).

     Reasonable grounds or probable cause exist when factors and circumstance within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe an offense has been committed. For the offense of driving under the influence, these circumstances include odor of alcohol, results of the field sobriety tests, appearance and mannerism of intoxication, slurring of speech, and unsteady movement. See Gregory E. Barrett, Pre-trial Preparation in Traffic Cases (Pacific Rim Vehicular Homicide/DUI Seminar, Feb. 1998). Here, the Defendant had the odor of alcohol, slurring of speech, and failure of the field sobriety tests.

     Based upon the evidence presented at the hearing, I conclude that the police officers had sufficient reasonable suspicion to conduct an investigatory stop of the Defendant. This reasonable suspicion was supplied by an informant, whose identity, credibility, reputation and reliability are known. At the investigatory stop, the police observed signs of alcohol impairment by the Defendant. These signs provided grounds for the police to administer the Field Sobriety Tests to the Defendant. The Defendant failed two Field Sobriety Tests, giving the police reasonable grounds and probable cause for Defendant’s commission of Driving Under the Influence and probable cause to arrest the Defendant. Accordingly, Plaintiff’s Motion to Dismiss is denied.

     Trial is set for January 27, 2004 at 10 am.

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