KOSRAE STATE COURT TRIAL DIVISION
Cite as Kosrae v. Sikain
13 FSM Intrm. 174 (Kos. S. Ct. Tr. 2005)

[13 FSM Intrm. 174]

STATE OF KOSRAE,
Plaintiff,
 
vs.
 
ALIK A. SIKAIN,
Defendant.
 
CRIMINAL CASE NO. 57-04
 
ORDER GRANTING MOTION TO SUPPRESS; ORDER OF DISMISSAL
 
Yosiwo P. George
Chief Justice
 
Hearing: November 24, 2004, February 22, 2005
Decided: March 3, 2005

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 stop may not involve the discretionary exercise of authority by the officers who are actually on the scene and making the stops. 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. Sikain, 13 FSM Intrm. 174, 174 (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. Sikain, 13 FSM Intrm. 174, 176 (Kos. S. Ct. Tr. 2005).

[13 FSM Intrm. 175]

Search and Seizure
     There are two purposes for requiring advance notice of a 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. Accordingly, the general public, including passengers, and not just drivers, must be given advance notice. Kosrae v. Sikain, 13 FSM Intrm. 174, 176-77 (Kos. S. Ct. Tr. 2005).
 
Search and Seizure
     The "open fields" exception requires the evidence to be in plain view from a public place. But when the police viewed the open can of beer in the defendant's hand solely as the result of an illegal roadblock at which the car was stopped and would not have viewed the can of beer if the car had not been stopped at the roadblock, the can of beer was not in plain view from a public place and the "open fields" exception is not applicable. Kosrae v. Sikain, 13 FSM Intrm. 174, 177 (Kos. S. Ct. Tr. 2005).
 
Appellate Review ; Courts
     Under the doctrine of stare decisis, once a point of law has been established by a court, that point of law will be followed by all courts of lower rank in subsequent cases where the same legal issue is raised. Kosrae v. Sikain, 13 FSM Intrm. 174, 177 (Kos. S. Ct. Tr. 2005).
 
Constitutional Law ) Interpretation; Courts; Criminal Law and Procedure
     When our nation’s highest court, the FSM Supreme Court appellate division, interprets a constitutional provision in a case before it, that interpretation is to be given full effect in all cases still open on direct review, and as to all events, regardless of when they occurred. Once it announces a new rule of law, the integrity of judicial review requires application of the new rule to all similar cases pending on review. Kosrae v. Sikain, 13 FSM Intrm. 174, 177 (Kos. S. Ct. Tr. 2005).
 
Courts; Criminal Law and Procedure
     New constitutional rules affecting procedures in criminal cases apply only to those cases which are pending on direct review or which are not yet final when the new rules are announced. Thus a new constitutional rule announced in a January, 2004 decision will apply to a May 2003 case still pending at that time. Kosrae v. Sikain, 13 FSM Intrm. 174, 177 (Kos. S. Ct. Tr. 2005).

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COURT’S OPINION

YOSIWO P. GEORGE, Chief Justice:

     Defendant filed a Motion for Suppression of Evidence on November 20, 2004. Plaintiff's Opposition was filed on November 24, 2004. At a hearing held on November 24, 2004, further briefing was ordered. Plaintiff filed a Supplemental Brief on December 17, 2004. Defendant filed Additional Case Law on January 3, 2005. The hearing was continued on February 22, 2005. Paliknoa Welly, State Prosecutor, appeared for the Plaintiff. Defendant was represented by Harry Seymour, Public Defender.

     Defendant was a passenger in a car that was stopped at a DUI roadblock in Tofol on May 31, 2003. While the car was stopped at the roadblock, the police observed the Defendant holding an open can of Budweiser. Defendant was charged with two offenses: drinking alcoholic drinks without a drinking permit and drinking alcoholic drinks in a public place. The public was not given advance notice of the roadblock. The State admitted that it did not make any radio announcement for the roadblock held on May 31, 2003.

[13 FSM Intrm. 176]

     Defendant argues that under the decision in Sigrah v. Kosrae, 12 FSM Intrm. 320 (App. 2004), the roadblock violated the constitutional protections of the Defendant due to the State's failure to inform the public in advance of the roadblock by radio announcement. The Defendant argues that the roadblock was therefore illegal, that all evidence obtained at the illegal roadblock is tainted and must be suppressed. Plaintiff argues that the advance notice requirement enunciated in Sigrah applies only to vehicle drivers and not passengers, such as the Defendant. Plaintiff also argues that the "open fields" exception applies because the Defendant was holding the open can of beer in a vehicle traveling on a public road.

     Since the initial hearing and briefing submitted in this case, this Court has ruled on the requirements for public notice of roadblocks, in accordance with the mandates of the Sigrah decision. In the case of State v. Robert, 13 FSM Intrm. 109 (Kos. S. Ct. Tr. 2005), this Court granted the Defendant's Motion for Suppression of Evidence. In the Robert case, the State gave public notice of roadblocks during the month of October 2004, on the local radio station, as follows: "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, the date on which Hitmer was stopped. In Robert, this Court concluded 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 Court concluded that the radio announcements made from October 11 through 19, 2004 did not provide adequate advance notice to the public. Due to the absence of detailed advance notice, the roadblock held on October 22, 2004 did not meet the requirements established in Sigrah and therefore did not provide the necessary constitutional protections.

     In this case, the Plaintiff admits that there was no notice to the public at all regarding the May 31, 2003 roadblock. Plaintiff argues however that the notice requirement does not apply here because the Defendant was a passenger and not the driver of the vehicle. The application of the Sigrah decision, as to passengers in a vehicle, must therefore be examined.

     The Sigrah Court discussed the purpose of the notice to the public:

[T]he stop may not involve the discretionary exercise of authority by the officers who are actually on the scene and making the stops. . . . 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 (emphasis added). 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 (emphasis added).

     The Sigrah Court discussed 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. Accordingly, the Court required that the public must be given advance notice. The Sigrah Court stated the basis for the notice of the roadblocks by radio announcement to the public: so that people can take action to comply with applicable laws. The Sigrah Court did not require advance notice to vehicle drivers only for the purpose of drivers to take action to comply with applicable laws. Therefore, I conclude that the Sigrah decision requires advance public notice of roadblocks by radio announcement to the general public, including passengers, and not

[13 FSM Intrm. 177]

just drivers.

     Based upon this language of the Sigrah decision, the State's failure to announce the roadblock held on May 31, 2003 results in the State's failure to comply with the procedural protections mandated by Sigrah. Accordingly, the roadblock conducted on May 31, 2003 violated the constitutional protections mandated by Sigrah and was therefore illegal. All evidence obtained at the illegal roadblock must be suppressed.

     The State argued that the warrantless search of the subject vehicle at the unannounced roadblock, which revealed the Defendant's possession of an open container of alcoholic drink, was permissible under the "open fields" exception. The "open fields" exception requires the evidence to be in plain view from a public place. Kosrae v. Paulino, 3 FSM Intrm. 273 (Kos. S. Ct. Tr. 1988) (officer standing on a public road saw a marijuana plant in plain view on top of a nearby house). See also FSM v. Rodriquez, 3 FSM Intrm. 385 (Pon. 1988). Here, the police viewed the open can of beer in Defendant's hand solely as the result of the roadblock at which the car was stopped. The police would not have viewed Defendant's can of beer if the car had not been stopped at the roadblock. Therefore, the can of beer was not in plain view from a public place. Accordingly the "open fields" exception is not applicable here and the State's argument must be rejected.

     Finally, the State argued that the Sigrah decision is not applicable here, because the roadblock was held in May 2003, before the Sigrah decision was entered in January 2004. Defendant argues that the Sigrah decision applies to all cases pending at the time the decision was entered in January 2004, including the instant case. Defendant argues that the constitutional protection of privacy was applicable in May 2003, and that in January 2004 the Sigrah Court explained the application of the constitutional protection of privacy to roadblocks. Neither party has submitted any legal authority to support their position.

     Under the doctrine of stare decisis, once a point of law has been established by a court, that point of law will be followed by all courts of lower rank in subsequent cases where the same legal issue is raised. 5 Am. Jur. 2d Appellate Review § 599, at 294 (rev. ed. 1995). Therefore, when the highest court of our Nation, the Appellate Division of the FSM Supreme Court, interprets a constitutional provision in a case before it, that interpretation is to be given full effect in all cases still open on direct review, and as to all events, regardless of when they occurred. See 20 Am. Jur. 2d Courts § 173, at 456-57 (rev. ed. 1995). Once the Appellate Division announces a new rule of law, the integrity of judicial review requires application of the new rule to all similar cases pending on review. See id. § 174, at 458. New constitutional rules affecting procedures in criminal cases apply only to those cases which are pending on direct review or which are not yet final when the new rules are announced. See id. § 177 at 460. This matter was pending on direct review before this Court and had not yet become final at the time that the Sigrah decision was entered. Therefore, the requirements pertaining to notice and conduct of roadblocks as established in Sigrah, as applicable to criminal cases, also apply to this case.

     Based upon the reasoning set forth above, the Defendant's Motion to Suppress Evidence is granted. All evidence obtained by the State against the Defendant as a result of the May 31, 2003 roadblock shall be suppressed. As evidence against the Defendant was obtained only at the roadblock, the Information is also dismissed with prejudice.

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