KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Robert
13 FSM Intrm. 109 (Kos. S. Ct. Tr. 2005)

[13 FSM Intrm. 109]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
HITMER L. ROBERT,
Defendant.
 
CRIMINAL CASE NO. 147-04
 
ORDER GRANTING MOTION FOR SUPPRESSION OF EVIDENCE
 
Yosiwo P. George
Chief Justice
 
Hearing: January 7, 2005
Decided: January 17, 2005

[13 FSM Intrm. 110]

APPEARANCES:

For the Plaintiff:           Paliknoa Welly
                                     State Prosecutor
                                     Office of the Kosrae Attorney General
                                     P.O. Box 870
                                     Tofol, Kosrae FM 96944
 
For the Defendant:     Harry Seymour, Esq.
                                    Office of the Public Defender
                                    P.O. Box 245
                                    Tofol, Kosrae FM 96944

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HEADNOTES

Search and Seizure
     A roadblock traffic stop may not involve the discretionary exercise of authority by the officers who are actually on the scene and making the stops. The stops may not be made on an ad hoc basis, but must be implemented by public safety administrative personnel as part of a legitimate rational program. To insure the arbitrary, discretionary conduct is not merely shifted from the officer in the field to the public safety administrator responsible for the planning and implementation of the stops, the public must be given advance notice by means of radio announcement that the stops will be held. Kosrae v. Robert, 13 FSM Intrm. 109, 111 (Kos. S. Ct. Tr. 2005).
 
Search and Seizure
     The purpose of a roadblock, with proper advance notice, is a means to cause people to take action to comply with applicable laws. Kosrae v. Robert, 13 FSM Intrm. 109, 111 (Kos. S. Ct. Tr. 2005).
 
Search and Seizure
     The state's radio announcements made from October 11 through 19, 2004, which stated that roadblocks would be implemented "throughout the year" without specifying the dates of the roadblocks, constituted a failure to announce the date or dates of the scheduled roadblocks necessarily and did not provide adequate advance notice to the public thus resulting in discretionary conduct by giving the public safety administrator and the police officers unfettered discretion to determine the dates of the roadblocks. This arbitrary and discretionary exercise of authority is not permissible. The advance notice and the roadblock held on October 22, 2004 did not provide the necessary constitutional protections and therefore all evidence obtained by the state against the defendant as a result of the roadblock is suppressed and not admissible at trial. Kosrae v. Robert, 13 FSM Intrm. 109, 112 (Kos. S. Ct. Tr. 2005).

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COURTíS OPINION

YOSIWO P. GEORGE, Chief Justice:

     On January 5, 2005, Defendant filed a Motion for Suppression of Evidence. On January 7, 2005, Defendant filed a Supplemental Memorandum in Support of his Motion for Suppression. Also

[13 FSM Intrm. 111]

on January 7, 2005, a hearing was held on Defendant's Motion. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. After hearing from the parties, I took Defendant's Motion under advisement. I permitted the parties to submit additional briefs by January 11, 2005. Plaintiff filed its Opposition to Motion for Suppression of Evidence on January 10, 2005. This Order sets forth my ruling and reasoning.

     The facts, as presented by the parties, are as follows. The Defendant was stopped at a DUI roadblock on the evening of October 22, 2004. Defendant failed two Field Sobriety Tests conducted by a Kosrae State Police Officer. Defendant was arrested and booked at the Kosrae State Jail. Defendant was charged with three criminal offenses as stated in the Information filed on October 24, 2004: driving under the influence, unauthorized consuming, possessing or giving of alcoholic drink and unauthorized operation of a motor vehicle. Evidence in support all three charges against the Defendant was obtained at the roadblock on the evening of October 22, 2004.

      During the month of October 2004, the State gave public notice that DUI roadblocks would be conducted by the Kosrae State Police Department. The public notice was broadcast on the local radio station, V6AJ, beginning on October 11, 2004. The public notice was broadcast at least twice every day until October 19, 2004. The public notice stated that "periodical road blocks and DUI checkpoints will be implemented through out the year." The public notice did not state any specific dates on which roadblocks or checkpoints would be conducted. The public notice did not state that a roadblock would be conducted on October 22, 2004.

     Defendant seeks suppression of all evidence obtained at the subject roadblock. Defendant claims that the public announcement made regarding the roadblocks and DUI checkpoints is deficient and fails to meet the requirements established in the case of Sigrah v. Kosrae, 12 FSM Intrm. 320 (App. 2004). The State argues that the Sigrah decision does not require the public announcement to be specific to the date, time and place of implementation. The State argues that the public, including the Defendant, was given adequate notice through the radio announcements for the DUI checkpoint that was held on October 22, 2004, and therefore the Defendant's Motion for Suppression should be denied.

     Both parties refer to the decision in Sigrah v. Kosrae 12 FSM Intrm. 320 (App. 2004) as controlling precedent in this case. The Court in Sigrah addressed the standard by which roadblocks and DUI checkpoints must be conducted in order to meet protections provided by our Constitution. The Sigrah Court held that:

[T]he stop may not involve the discretionary exercise of authority by the officers who are actually on the scene and making the stops. The stops may not be made on an ad hoc basis, but must be implemented by public safety administrative personnel as part of a legitimate rational program. . . . . To insure the arbitrary, discretionary conduct is not merely shifted from the officer in the field to the public safety administrator responsible for the planning and implementation of the stops, the public must be given advance notice by means of radio announcement that the stops will be held.

Id. at 329.

     The Sigrah Court also discussed the purpose of the roadblocks. The purpose of the roadblock, with proper advance notice, "is a means to cause people to take action to comply with applicable laws." Id. at 330.

     The State argues that the Sigrah decision does not specifically require that the date of the roadblock be part of the advance notice given to the public. While the Sigrah Court did not specifically

[13 FSM Intrm. 112]

state that the date of the roadblock be part of the advance notice to the public, the Court did discuss the two purposes of requiring advance notice of the roadblock to the public: first, to eliminate arbitrary and discretionary conduct by the officers, and second, to cause people to take action to comply with applicable law. The State's failure to announce the date or dates of the scheduled roadblocks necessarily results in discretionary conduct by officers in determining when to conduct a roadblock. The State's radio announcement that roadblocks will be implemented from October 11, 2004 through the end of the year, without specifying the dates of the roadblocks, renders the advance notice to the public meaningless. Accordingly, the public announcement given in October 2004, which stated that "roadblocks shall be implemented from now until the end of the year" allows arbitrary and discretionary conduct by the officers, and therefore does not comply with the procedural protections mandated by Sigrah.

     I conclude that the radio announcements made from October 11 through 19, 2004, which stated that roadblocks will be implemented "throughout the year" did not comply with the requirements established in the Sigrah decision, because the announcements did not specify the dates that the roadblocks would be conducted. The State's failure to announce the dates of the roadblocks gave the public safety administrator and the police officers unfettered discretion to determine the dates of the roadblocks. This arbitrary and discretionary exercise of authority is not permissible under Sigrah, Accordingly, I conclude that that radio announcements made from October 11 through 19, 2004 did not provide adequate advance notice to the public. The advance notice and the roadblock held on October 22, 2004 did not meet the requirements established in Sigrah v. Kosrae and therefore did not provide the necessary constitutional protections.

     Defendant's Motion to Suppress is granted. All evidence obtained by the State against the Defendant as a result of the roadblock is therefore suppressed and not admissible at trial.

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