FSM SUPREME COURT TRIAL DIVISION
Cite as Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483 (Pon. 2005).

[13 FSM Intrm. 483]

GIBSON WARREN,

Plaintiff,

vs.

POHNPEI STATE DEPARTMENT OF PUBLIC

SAFETY, and the GOVERNMENT OF THE

STATE OF POHNPEI,

Defendants.

CIVIL ACTION NO. 2001-049

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Martin Yinug

Associate Justice

Trial: April 28-29, July 25-29, 2005

Submitted: September 14, 2005

Decided: October 31, 2005

APPEARANCES:

For the Plaintiff:    Stephen V. Finnen, Esq.

                                   P.O. Box 1450

                                   Kolonia, Pohnpei   FM   96941

For the Defendants:   Leonito M. Bacalando, Jr.

                                         Assistant Attorney General

                                         Pohnpei Department of Justice

                                         P.O. Box 1555

                                         Kolonia, Pohnpei   FM   96941

* * * *

HEADNOTES

Civil Rights; Torts ) Governmental Liability

     Governmental entities, such as the State of Pohnpei and the Pohnpei Department of Public Safety, are "persons" within the meaning of 11 F.S.M.C. 701 et seq. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 491 (Pon. 2005).

Civil Rights

     The actions of corrections officers in refusing to permit the plaintiff to use the phone to call an attorney or to contact one at his request; in refusing to allow the plaintiff to telephone his family or to contact them at his request and in refusing to permit his wife to speak to him when she called the jail; and in failing to insure that the plaintiff was brought before a judicial officer within 24 hours of his arrest constituted violations of 12 F.S.M.C. 218. Warren v. Pohnpei State Dep't of Public Safety, 13

[13 FSM Intrm. 484]

FSM Intrm. 483, 491 (Pon. 2005).

Civil Rights; Criminal Law and Procedure ) Arrest and Custody

      That the plaintiff was not informed at or before the time of his arrest why he was being arrested constituted a violation. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 491 (Pon. 2005).

Civil Rights; Criminal Law and Procedure ) Cruel and Unusual Punishment

     Corrections officers' failure to permit the use of restroom facilities while he was in jail and to provide him with food and water while he was in their custody was an inhumane condition of confinement constituting cruel and unusual punishment. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 491 (Pon. 2005).

Torts ) False Imprisonment; Torts ) Governmental Liability

     Corrections officers' actions in holding the plaintiff in jail for more than 24 hours constituted tortious conduct, specifically the tort of false imprisonment. Since these actions were carried out within the scope of their employment rather than for their own personal purposes and the acts complained of were perpetrated in government buildings devoted to law enforcement purposes, under these circumstances, the governmental employer should be held responsible for what was done and thus, Pohnpei and its Department of Public Safety are liable for this tort. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 491, 492-93 (Pon. 2005).

Civil Rights

      When it was the Pohnpei Department of Public Safety's stated policy not to deny an arrested person the right to see family members or counsel at reasonable times; not to unreasonably refuse to an arrested person the right to use the telephone to call family members or counsel; and to insure that within 24 hours of arrest the arrested person was either released or charged and taken before a qualified magistrate, but when the actual policy was that arrestees could not see family members; that arrestees could make phone calls to or meet with a lawyer, but could not receive phone calls from or make phone calls to family members, except in emergency situations such as funerals, the restrictions on contact with family members violated both the department regulations and 12 F.S.M.C. 213(2) and (3). The corrections officers' actions in denying the plaintiff the opportunity to contact family members; in refusing him permission to call a lawyer (except on the last day of his confinement); in failing to permit him to use the restroom; and in failing to provide him with food were products of decisions and action of persons with the final policy-making power concerning prisoners in that time and place. This constituted the actual policy at relevant times irrespective of stated policy and the failure to undertake any investigation of the plaintiff's complaints resulted in the ratification by the chief policy-maker of the challenged actions. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 491-92 (Pon. 2005).

Civil Rights

      By not raising it until five years after relevant events, Pohnpei waived the cholera epidemic as a defense to its failure to insure that the plaintiff was taken before a judicial officer within 24 hours of arrest. But it would not make a difference even if the defense of the cholera epidemic were considered, when Pohnpei presented no showing of a causal link between the cholera epidemic and Warren's being held in jail for 63 hours. Since jail staff was not reduced as a result of the epidemic, nor did any other epidemic-related factor prevent Warren from being taken before a magistrate within 24 hours of arrest. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 492 (Pon. 2005).

Civil Procedure ) Pleadings

     An amended complaint can filed as a matter of course before an answer to the original complaint

[13 FSM Intrm. 485]

has been filed. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 492 (Pon. 2005).

Jurisdiction ) Pendent

     When a citizen of Pohnpei, sues Pohnpei and one of its agencies over a state law tort claim of false imprisonment and the remaining four counts of the amended complaint allege violations of the national civil rights law, and are based on the same facts that form the basis for the state law claim, or the same nucleus of operative fact, the FSM Supreme Court may exercise pendent jurisdiction over the state law claim. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 492 (Pon. 2005).

Torts ) False Imprisonment

     False imprisonment's elements are: 1) restraint or detention of one against his or her will and 2) unlawfulness of the restraint or detention. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 492 (Pon. 2005).

Civil Rights; Torts ) Damages

     When the acts that comprise the false imprisonment tort are also the acts that constitute the civil rights violations, the court will not make a separate award of damages for this tort, since to do so would result in a double recovery. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 493 (Pon. 2005).

Civil Rights

      A person who deprives another of any right or privilege protected by the FSM Constitution or laws will be civilly liable to the party injured in an action at law. The statute confers a private cause of action and it is plain that governmental entities such as the State of Pohnpei and the Pohnpei Department of Public Safety are "persons" within the statute's meaning. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 493 (Pon. 2005).

Civil Rights

     When no investigation of the plaintiff's complaints were ever undertaken, nor were any officers disciplined; when none of the officers who participated in the violation of an individual's civil rights were either disciplined or had criminal charges brought against them, and where all of the officers who participated were back on duty the next day, the police officers' conduct was ratified as official policy of the Pohnpei Department of Public Safety. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 494 (Pon. 2005).

Civil Rights

     To be civilly liable for civil rights damages the element of willfulness is not required. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 494 (Pon. 2005).

Civil Rights

     The civil rights statute, 11 F.S.M.C. 701, is a part of the National Criminal Code and became effective July 12, 1981. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 494 (Pon. 2005).

Criminal Law and Procedure ) Arrest and Custody

     Any person making an arrest must, at or before the time of arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest. The onus is on the arresting officer to advise the person arrested as to the cause and authority of the arrest. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 496 (Pon. 2005).

[13 FSM Intrm. 486]

Criminal Law and Procedure ) Arrest and Custody; Search and Seizure

      When a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it, such policeman may arrest the person without a warrant, but there may be one exception to this rule, however, and that is when a routine felony arrest takes place inside the suspect's home and there are no exigent circumstances (an emergency or a dangerous situation) to overcome the warrant requirement. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 496 n.4 (Pon. 2005).

Civil Rights

     An illegal arrest is actionable under 11 F.S.M.C. 701(3). Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 496 (Pon. 2005).

Search and Seizure ) Incident to an Arrest

      The most basic principle underlying a warrantless search incident to a lawful arrest is that the arrest itself must be justified, and when the arrest is invalid, the search is invalid. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 496-97 (Pon. 2005).

Search and Seizure ) Probable Cause

     An illegal search cannot justify a later arrest, and an arrest cannot be justified by a subsequent search. A search's legality must be tested on the basis of the information known to the police officer immediately before the search began. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 497 (Pon. 2005).

Search and Seizure

     If a police officer had permission to search a home, then no warrant was necessary; if he needed a warrant, then he did not have permission to enter the house. Consent to conduct a search must be proven by a preponderance of the evidence. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 497 (Pon. 2005).

Search and Seizure ) Plain View

     Under the plain view exception to the warrant requirement, if a police officer has a right to be in a specific place, and has a plain view of items subject to seizure, then he may seize those objects and they may be introduced into evidence in a subsequent criminal proceeding, but when the officer could not have seen the gun from his position on the porch and only obtained the rifle only after he had entered the house and conducted a search lasting 5 to 6 minutes, the search violated the right to be free from unreasonable searches and seizures. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 498 (Pon. 2005).

Civil Rights; Criminal Law and Procedure ) Arrest and Custody

     The state and its department of public safety are subject to civil liability for denying an arrestee the opportunity to contact either family members or an attorney. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 498 (Pon. 2005).

Civil Rights; Criminal Law and Procedure ) Arrest and Custody

     Even if the 24-hour deadline to bring a defendant before a court or release him were interpreted to mean within a reasonable time, holding a person in jail for 63 hours without an appearance before a judicial officer will subject the state and its department of public safety to civil liability. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 498 (Pon. 2005).

Constitutional Law ) Due Process; Criminal Law and Procedure ) Arrest and Custody

     A defendant's statutory right to be brought before the court within the 24 hours period goes to

[13 FSM Intrm. 487]

the heart of the procedural due process guaranteed to FSM citizens. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 499 (Pon. 2005).

Civil Rights; Criminal Law and Procedure ) Cruel and Unusual Punishment

     When the only food provided the plaintiff during the approximately 63 hours in jail was three donuts and a jar of water given to him by a prisoner and he was permitted to use the restroom only once during that time, and was obliged to urinate through the window, and to defecate into the pages of a magazine which he then discarded through the window, these inhumane conditions of confinement constitute cruel and unusual punishment, in derogation of the Declaration of Rights of the FSM Constitution. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 499 (Pon. 2005).

Civil Rights

     When the plaintiff was unlawfully denied the right to make contact with anyone outside the jail, but his right to communicate with family members was further compromised when his wife was not permitted to speak with him on the telephone, the court will award $500; when he was confined in unconstitutional conditions of confinement, the court will award $10 an hour, or $635 for 63 hours; for the residual effects of his detention that he experienced during the two weeks after he was released, including stomach problems and lingering numbness in his hands resulting from being handcuffed, the court will award $150; for being held in excess of 24 hours, an unambiguous right, the court will award $3,000 for the more than two and a half days in jail (a separate award for not being brought before a judge within the statutorily-required time); an additional $500 resulting from the unlawful arrest and $200 awarded for an unlawful search. Warren v. Pohnpei State Dep't of Public Safety, 13 FSM Intrm. 483, 499-500 (Pon. 2005).

* * * *

COURT'S OPINION

MARTIN YINUG, Associate Justice:

     Trial in this tort and constitutional rights violation case began on April 28 and 29, 2005; it resumed on July 25, 2005, and continued through July 28, 2005. On July 29, 2005, the court and counsel visited the site. The parties submitted closing briefs on September 9, 2005, and reply briefs on September 14, 2005.

     The court finds in favor of plaintiff Gibson Warren and against the defendants in the sum of $4,985.00, plus costs and attorney's fees. Judgment issues herewith.

I.  Findings of Fact

     On July 24, 2000, in the early evening the Pohnpei State Department of Public Safety received a call from Rupen Amaraich that Gibson Warren was shooting a gun at Warren's house above Deh Elementary School in Sokehs. Warren is Rupen Amaraich's neighbor. Warren had previously worked with the Sokehs police force for six months.

     Police officers, including Sergeant Sapuro Norman, who was the first to arrive on the scene, and Rainer Elias, went to Gibson Warren's house where they arrived between 7 and 8 p.m. while there was still some daylight remaining. They found Warren, who had been drinking, sitting on the front porch of his house with Steve Werner and two other individuals. (Werner and the two others were neither arrested nor considered suspects.) Three empty shells and two or three live bullets were on the porch near where Warren was sitting.

[13 FSM Intrm. 488]

Norman asked Warren, "Where's the gun?" to which Warren responded, "I don't know what your talking about." When Warren stood up, Elias and another police officer grabbed him.

      Without receiving permission from Warren to enter his house, Norman kicked in the door of the laundry room, went inside, and after 5 or 6 minutes, during which he conducted a search of the house, emerged with a .22 caliber long rifle that Semes Cantero had given to Warren to repair. Earlier that evening Warren had fired the gun at least twice up into a coconut tree. Steve Werner had also fired the gun into the same tree. After Werner had fired the gun, Warren took the gun and placed it on a shelf inside the laundry room of the house where it remained until Norman took it.

      Norman lied when he testified that he did not enter the house, but only reached inside to get the rifle. Based on the court's site visit, it was physically impossible for Norman, standing outside the door, to reach inside Warren's house and take the rifle from the top shelf where it was stored. The shelf was a matter of some feet beyond arm's reach and inside the door along a wall that was behind the door and running at a ninety degree angle to the door. The height of the shelf was such that Warren, by holding the rifle in his hand and extending his arm upward, could shove the rifle onto the shelf. Placed on the shelf, the rifle was not visible from outside the house.

      Neither the Department of Public Safety incident report (plaintiff's exhibit "E") nor the chronological report (plaintiff's exhibit "F") makes any mention of Warren's granting Norman permission to search his house.

      After Norman emerged from the house, Warren was arrested. Elias handcuffed Warren with Warren's arms behind his back after Warren had been tripped and thrown to the ground. Warren then asked what he had done wrong, and was told that he would find out at the station. The arresting officers did not tell him what crime he was being arrested for either at or before the time of his arrest.

      Police officers then escorted Warren down the steep, slippery path leading to the road. Part of the way down Warren stumbled, and he was not permitted to regain his footing. Police officers dragged him the rest of the way to the waiting police car. Warren was wearing short pants, with no shirt and no shoes. By the time he arrived at the car, his arms were sore and numb, and he had mud on his chest, stomach, and feet.

      Warren was taken to the police station where he was placed in a holding cell near the front desk. He asked Officer William Ionis if he could call his lawyer, but this request was met with laughter, and the request was denied.

      The chronological report admitted into evidence as plaintiff's exhibit "F" (translated as part of plaintiff's exhibit "J") shows that at 23:05 (11:05 p.m.) on July 25, 2000, Rupen Amaraich, Warren's neighbor, telephoned the Department of Public Safety to complain about Warren. The incident report admitted into evidence as plaintiff's exhibit "E" shows the time of the incident as 23:05 (11:05 p.m.) on July 25, 2000, and the time of the arrest as 23:10 (11:10 p.m.) on July 25, 2000. Further, the record of detention shows the time of confinement as 23:15 (11:15 p.m.) on July 25, 2000. Even if the complaint had been received at 11:05 p.m., it would not have been possible for police officers to travel from Kolonia to Deh, to climb the hill in the dark to Warren's house, to question Warren, and then arrest him five minutes later at 11:10 p.m. Norman testified that the walk alone from the main road to Warren's house took five to ten minutes, and that he had fallen down two or three times due to the slippery conditions. Nor would it have been possible to take Warren down the dark, slippery hill, transport him to Kolonia, and confine him in the jail by 11:15 p.m. These times (11:05, 11:10, and 11:15) are not accurate.

[13 FSM Intrm. 489]

     As to the date of the arrest, the police blotter (admitted into evidence as plaintiff's exhibit "H"; the translation is part of plaintiff's exhibit "J," also admitted into evidence) shows the following, beginning with the first entry:

     7/25/00 24:15

     7/25/00 24:30

     7/25/00 24:40

     7/25/00 24:50

     7/25/00 24:55

     7/25/00 01:00

     7/25/00 01:05

     . . . [58 entries omitted all showing a date of 7/25/00]

     7/25/00 2100

     7/25/00 2200

     7/25/00 2350

     7/26/00 2400

     7/26/00 24:15

     7/26/00 24:30

     . . .

The entry for 7/25/00 at 24:40, or at 12:40 a.m. on the morning of July 25, 2000, indicates that "[a]t this time everything is secured in the facility, inspection was conducted in the arrestee room and this arrestee is fine." The reference to "arrestee" is to Gibson Warren. In the entries made between 10:00 p.m. and midnight on July 25, 2000, no reference is made to Warren's arrest or his being placed in custody because he had already been placed in custody the evening before, on July 24, 2000. Thus as to the date of detention, the indication in the record of detention showing that Warren was confined at 23:15 on July 25, 2000, (or at 11:15 p.m. in the evening) cannot be accurate, since the police blotter shows him in jail nearly 24 hours earlier at 12:40 a.m. on that same date. The July 25, 2000, date on the record of detention is erroneous. The correct date on the record of detention should be July 24, 2000.

      The date and time of Steve Werner's witness statement, admitted into evidence as defendant's exhibit 5, is 7/25/00 at 0:08. There appears to be a "+" sign after the time, but this could be read so that the last digit of the time is a "4." In any event, the time indicated is either 12:04 or 12:08 on the morning of July 25, 2000, which would be just a few minutes after the midnight of July 24, 2000. Obviously Werner's statement could not have been taken before the events in question. In the body of his statement, the second question is, "When did you go to Gibson Warren's house?" The answer is, "This evening July 25, 2000." However, the "5" in the date was originally a "4" that was then crossed out with the "5." The presence of the "4" supports the conclusion that the incident actually occurred on the 24th, and not the 25th. Werner's statement provides further evidence that Warren was arrested on the night of the 24th, and not the 25th, and is also consistent with Warren's specific recollection that he spent three nights in jail. Warren's testimony about the time and date of his arrest was accurate.

      The date and time on Rupen Amaraich's victim/witness statement is "7/25/0:02," or two minutes after midnight on the 24th. This is further evidence that the incident occurred on July 24, 2000, and not July 25, 2000.

      On the evening of the incident (i.e., July 24, 2000), Warren's wife Tosko called their house in Deh after she got off work at 9:00 p.m. She received no answer, and then called a neighbor, who told her that the police had taken Warren. The call to the neighbor was between 9:00 and 10:00 p.m. The

[13 FSM Intrm. 490]

next day, July 25, 2000, Tosko called the jail and asked to speak to Warren. The answer was "no." She did not call the jail again during Warren's detention.

      Warren spent the nights of July 24-25, 25-26, and 26-27 in jail, or a total of three nights. He was arrested at approximately 8 p.m. on July 24, 2000 (this approximation is based on Warren's testimony that there was still some daylight when police officers arrived at his house) and released at approximately 11:30 a.m. on July 27, 2000. He spent approximately sixty-three and a half hours in custody.

      On July 26, 2005, Warren asked to use the phone and to use the restroom. These requests were ignored.

      The following day, July 27th, the request to use the restroom was also denied. On only one occasion during his stay at the jail was Warren permitted to use the bathroom. Other requests to use the restroom were ignored. He urinated through the cell window on two occasions and defecated into the pages of a magazine which he discarded through the cell window. On one occasion, when Warren asked to use the telephone, he was slapped on the face by a corrections officer.

      Warren was allowed to call the public defender on July 27, 2005. A couple of hours later national police officers arrived, and took him to court. He borrowed a T-shirt from another prisoner to wear to court. Warren was not permitted to shower or bathe while in jail.

      Warren was released from jail at approximately 11:30 a.m on July 27, 2000. The date of release is correctly shown on the record of release admitted into evidence as plaintiff's exhibit "D". In July 2000, no corrections officers had the responsibility to monitor detention records to insure that an arrestee is taken before a magistrate within 24 hours of arrest. Jail personnel did not give Warren any food or water while he was in jail. A prisoner on one occasion gave him a jar of water and three donuts. At the time of release he was weak from lack of nourishment, but could still walk.

      After his release, Warren had stomach problems that lasted two weeks, and also experienced lingering numbness in his hands as a result of being handcuffed.

      On July 27, 2000, a criminal information against Warren was filed in Pohnpei state court that alleged that he possessed a firearm without a license in violation of 11 F.S.M.C. 1205. Warren was never convicted of this offense.

      Pohnpei and the Department of Public Safety did not claim until the time of trial five years after relevant events that added police duties resulting from the cholera epidemic prevented Warren's being taken before a magistrate within 24 hours of arrest.

      No department investigation was ever undertaken as a result of Warren's claim in this case. Nor were any officers ever disciplined. Joseph Roby, Chief of the Division of Police and Patrol, testified that he did not know that Warren had been held for more than 24 hours until the time of his (i.e., Roby's) testimony on the day of trial. Chief Roby appeared surprised to learn that Warren had been held for more than 24 hours when he was advised of this fact by Warren's attorney during direct examination.

[13 FSM Intrm. 491]

II.  Conclusions of law

      1.  Governmental entities, such as the State of Pohnpei and the Pohnpei Department of Public Safety, are "persons" within the meaning of 11 F.S.M.C. 701 et seq. Plais v. Panuelo, 5 FSM Intrm. 179, 205 (Pon. 1991).

      2.  The actions of corrections officers in refusing to permit Warren to use the phone to call an attorney or to contact one at Warren's request constituted a violation of 12 F.S.M.C. 218(2) and (3).

      3.  The actions of corrections officers in refusing to allow Warren to telephone his family or to contact them at Warren's request, and in refusing to permit Tosko Warren to speak with her husband when she called the jail on July 25, 2000, constituted a violation of Warren's right to communicate with family members pursuant to 12 F.S.M.C. 218(2) and (3).

      4.  The actions of corrections officers in failing to insure that Warren was brought before a judicial officer within 24 hours of his arrest constituted a violation of 12 F.S.M.C. 218(5).

      5.  That Warren was not informed at or before the time of his arrest why he was being arrested constituted a violation of 12 F.S.M.C. 214(1) and 11 F.S.M.C. 701 et seq.

      6.  The actions of Sergeant Sapuro Norman in engaging in a warrantless search of Warren's house constituted an unreasonable search and seizure in violation of Article IV, Section 5 of the FSM Constitution and 11 F.S.M.C. 701 et seq.

      7.  The failure of corrections officers to permit Warren the use of restroom facilities while he was in jail was an inhumane condition of confinement constituting cruel and unusual punishment in violation of Article IV, Section 8 of the FSM Constitution and 11 F.S.M.C. 701 et seq. Plais, 5 FSM Intrm. at 199.

      8.  Similarly, the failure of corrections officers to provide Warren with food and water while he was in their custody was an additional inhumane condition of confinement constituting cruel and unusual punishment in violation of Article IV, Section 8 of the FSM Constitution and 11 F.S.M.C. 701 et seq. Plais, 5 FSM Intrm. at 199.

      9.  The actions of corrections officers in holding Warren in jail for more than 24 hours in violation of 12 F.S.M.C. 218(5) also constituted tortious conduct, and specifically the tort of false imprisonment. These actions "were carried out within the scope of their employment rather than for their own personal purposes. The acts complained of were perpetrated in government buildings devoted to law enforcement purposes." Plais, 5 FSM Intrm. at 201. Under these circumstances, "the governmental employer should be held responsible for what is done." Id. Thus, Pohnpei and its Department of Public Safety are liable for this tort.

      10.  It was stated policy of the Pohnpei Department of Public Safety not to deny an arrested person the right to see family members or counsel at reasonable times; not to unreasonably refuse to an arrested person the right to use the telephone to call family members or counsel; and to insure that within 24 hours of arrest the arrested person was either released or charged and taken before a qualified magistrate. Rules and Regulations, Department of Public Safety, Pohnpei State, art. IX,  10-11 at 25-26 (admitted into evidence as plaintiff's exhibit "I"). However, the actual policy as testified to by Wetson Pelep, Chief of the Division of Corrections and Rehabilitation, who was the chief policymaker for his division, was that arrested individuals could not see family members; that arrestees could make phone

[13 FSM Intrm. 492]

calls to or meet with a lawyer, but could not receive phone calls from or make phone calls to family members, except in emergency situations such as funerals. Though the foregoing were generally reflected in Pelep's December 20, 2000, memo (defendant's exhibit 1), they were already in place at the time of the incident in July of 2000. The restrictions on contact with family members violated both the department regulations and 12 F.S.M.C. 213(2) and (3).

      11.  The actions of corrections officers in denying Warren the opportunity to contact family members; in refusing him permission to call a lawyer (except on the last day of his confinement); in failing to permit him to use the restroom; and in failing to provide him with food "were products of decisions and action of persons with the final policy-making power concerning prisoners in that time and place." Plais, 5 FSM Intrm. at 207. This constituted the actual policy at relevant times irrespective of stated policy.

      12.  The failure by the Chief of the Department of Corrections and Rehabilitation to undertake any investigation of Warren's complaints resulted in the ratification by the chief policymaker of the actions challenged by Warren. Estate of Mori v. Chuuk, 10 FSM Intrm. 6, 14 (Chk. 2001).

      13.  By not raising it until five years after relevant events, Pohnpei waived the cholera epidemic as a defense to its failure to insure that Warren was taken before a judicial officer within 24 hours of arrest.

      14.  Even if the defense of the cholera epidemic is considered, Pohnpei presented no showing of a causal link between the cholera epidemic and Warren's being held in jail for sixty-three and a half hours. Jail staff was not reduced as a result of the epidemic, nor did any other epidemic related factor prevent Warren from being taken before a magistrate within 24 hours of arrest.

III.  Discussion

      This case was tried on the amended complaint filed on November 29, 2001. The complaint had been filed eight days earlier on November 21, 2001. The amended complaint was filed as a matter of right under Rule 15 of the FSM Rules of Civil Procedure: "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." The amended complaint was filed before any answer to the complaint had been filed, and the answer to the amended complaint was filed on December 11, 2001. The amended complaint seeks punitive damages against the defendants, but this claim was dismissed by order dated February 17, 2005.

      The first cause of action alleged in the amended complaint is for the common law tort of false imprisonment. Since Warren is a citizen of Pohnpei, and the defendants are Pohnpei and one of its agencies, this court would not have jurisdiction over this tort claim if that were the only cause of action alleged, FSM Const. art. IX,  6(a) and (b), and the claim would properly have been in state court. However, the remaining four counts of the amended complaint allege violations of the national civil rights law, 11 F.S.M.C. 701 et seq. These violations are based on the same facts that form the basis for the state law claim, or "from the same nucleus of operative fact." Foods Pacific, Ltd. v. H.J. Heinz Co. Australia, 10 FSM Intrm. 200, 205 (Pon. 2001). Thus this court may exercise pendent jurisdiction over the state law claim. Id.

      The elements of false imprisonment are 1) restraint or detention of one against his or her will and (2) unlawfulness of the restraint or detention. Pohnpei v. M/V Miyo Maru No. 11, 8 FSM Intrm. 281, 295 (Pon. 1998). Warren was held for approximately sixty-three and a half hours in the Pohnpei jail without his permission or other legal justification by corrections officers acting as agents of Pohnpei. These officers were acting "within the scope of their employment rather than for their own personal purposes. The acts complained of were perpetrated in government buildings devoted to law

[13 FSM Intrm. 493]

enforcement purposes." Plais, 5 FSM Intrm. at 201. Under these circumstances, "the governmental employer should be held responsible for what is done." Id. Thus, the State of Pohnpei and one of its agencies, the Department of Public Safety, are jointly and severally liable for this tort. However, because acts that comprise this tort are also the acts that constitute the civil rights violations, the court will not make a separate award of damages for this tort, since to do so would result in a double recovery. Atesom v. Kukkun, 10 FSM Intrm. 19, 23 (Chk. 2001).

      Count two of the amended complaint is designated "civil rights;" count three "constitutional violation ) due process;" count four "constitutional violation ) searches and seizures;" and count five "constitutional violation ) rights of accused." These counts allege the various ways in which Warren's rights were violated. Count two makes a direct reference to 11 F.S.M.C. 701, et seq., while counts three, four, and five refer to this statute by incorporating prior paragraphs. Reference is also made to violations of the FSM Constitution, the Pohnpei Constitution, and an unspecified statute: Warren alleges that he was not permitted "a bail hearing within the statutory 24 hours." Amended Complaint 35. This reference will be treated as being to 12 F.S.M.C. 218(5), which provides in part that it is unlawful to "fail to either release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed 24 hours after his arrest." Section 701(1) of Title 11 of the FSM Code provides "[a] person commits an offense if he willfully, whether or not acting under color of law, deprives another of . . . any right, privilege, or immunity secured to him by the Constitution or laws of the Federated States of Micronesia," while section 701(3) provides that "[a] person who deprives another of any right or privilege protected under this Section shall be civilly liable to the party injured in an action at law." This latter section confers the private cause of action brought here. It is plain that governmental entities such as the State of Pohnpei and the Pohnpei Department of Public Safety are "persons" within the meaning of 11 F.S.M.C. 701 et seq. Plais, 5 FSM Intrm. at 205.

      It is not enough, however, that the civil rights protected under the statute are violated by agents of the entity concerned acting within the scope of their employment. Id. at 205-06. A plaintiff must demonstrate that violation of rights was undertaken as part of an official policy to do so. Id. On the point of detention beyond 24 hours, Chief Roby testified that it was official policy to take an arrestee before a magistrate within 24 hours. This testimony was further supported by the Department of Public Safety Rules and Regulations, which with regard to 24 hour detention and access to family members

[13 FSM Intrm. 494]

and counsel contain the specific provisions noted above in conclusion of law no. 9. However, the existence of the policy, and even though the stated policy may have been generally understood by police officers, does not necessarily mean that the policy was implemented. Violation of - or at least deliberate indifference to - stated policy can become the actual policy followed. Cf. Estate of Mori, 10 FSM Intrm. at 13 (holding that deliberate indifference to an arrestee's medical needs is policy where there is no training provided to jail personnel to enable them to evaluate situations requiring medical attention). The Plais court noted that the challenged actions "were products of decisions and action of persons with the final policy-making power concerning prisoners in that time and place," and that "[i]t appears quite unlikely that [the] beatings could have occurred without the approval of the person in charge of the Pohnpei jail at that time." 5 FSM Intrm. at 207. What held true in Plais holds true here. No investigation of Warren's complaints were ever undertaken, nor were any officers disciplined. Where none of the officers who participated in the violation of an individual's civil rights were either disciplined or had criminal charges brought against them, and where all of the officers who participated were back on duty the next day, the conduct of police officers was ratified as policy by the State of Chuuk. Davis v. Kutta, 7 FSM Intrm. 536, 548 (Chk. 1996); accord Mori, 10 FSM Intrm. at 14 (holding that failure of the Chuuk Director of Public Safety as chief policymaker for the Chuuk Department of Public Safety to investigate circumstances of arrestee's in-custody death ratified conduct of jail personnel); Atesom, 10 FSM Intrm. at 22 (holding that "assignments and procedures, and the failure to refer [an arrestee] for medical care" were ratified as policy by the Chuuk Director of Public Safety where no internal investigation of relevant events was undertaken). The court finds, likewise, that all of the actions of police and corrections officers challenged by Warren were ratified as official policy of the Pohnpei Department of Public Safety.

      Pohnpei urges that there must be showing of willful conduct on the part of police officers to establish a constitutional rights violation. By its terms  701(1) requires willfulness: "[a] person commits an offense if he willfully, whether or not acting under color of law, deprives another of . . . any right . . . secured to him by the Constitution or law of the Federated States of Micronesia" (emphasis added). Section 701(2) provides the penalty: "[a] person convicted under this Section shall be punished by imprisonment for not more than 3 years." However,  701(3), which is the part of the law under which the instant action for civil damages is brought, contains no such requirement: "[a] person who deprives another of any right or privilege protected under this Section shall be civilly liable to the party injured in an action at law" (emphasis added). It is under this latter section that Warren brings his claim for civil damages. As noted in Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 411 (App. 2000), "[t]he element of willfulness does not appear in the civil liability section."

       But even though 11 F.S.M.C. 701(3) may not require willfulness, the court notes that on one occasion when Warren wanted to call a lawyer, his request was met with laughter. On another, when he asked to use the telephone, an officer slapped him. Derisive conduct of this sort directly related to denial of these requests evidences willfulness.

      Pohnpei argues that 11 F.S.M.C. 701 et seq. did not become law until after the events complained of had occurred, and that the statute has no retroactive application. However, as Warren points out, the basis for this contention is unclear: "11 F.S.M.C. 701 is a part of the National Criminal Code enacted as Public Law 1-134 on January 7, 1981. It became effective July 12, 1981. FSM Pub. L. No. 1-134,  3 (1st Cong., 4th Reg. Sess. 1980)." Alep v. United States, 6 FSM Intrm. 214, 219 (Chk. 1993). Thus this contention is without merit.

[13 FSM Intrm. 495]

      Finally, Pohnpei notes in its closing papers that "[t]his case hinges on the issue of credibility and believability of plaintiff's testimony." Closing Brief [] at 1. This is true as far as it goes. What Pohnpei does not acknowledge is that a determination of the material facts rests on the credibility of its own witnesses as well, and especially that of Sergeant Sapuro Norman. On the key point of whether or not Norman entered the house, the court's site visit confirmed that Norman lied under oath. Norman's version of the events in question was physically impossible. Yet, Pohnpei appears to accept Norman's testimony as true, id. at 37, and characterizes Warren's testimony as "highly incredible;" and "border[ing] on the ridiculous." Id. at 7, 15. On at least one important point, Norman's testimony under oath was demonstrably false. In contrast, on material points Warren's testimony was credible.

      Warren contends that his constitutional rights were violated because officers had no probable cause to arrest him; the search of his home on the night of his arrest was improper; he was not permitted to call either his family or a lawyer while in custody, with the exception of a call to a lawyer on the third day of detention; he was held in custody longer than 24 hours without being released or taken before a judicial officer; and he was denied food and water and the right to use restroom facilities while in custody. The court considers each contention and turns to the question of damages.

A.  The arrest

      Warren urges that Pohnpei police officers did not have probable cause to arrest him when they came to his home on the night of July 24, 2000. Earlier in the evening, the police had received a report from Warren's neighbor, Rupen Amaraich, that someone was firing a gun at Gibson Warren's house. Later, when they arrived at Warren's house, they observed spent and live gun shells on the porch where Warren was sitting. The court need not determine whether probable cause existed, because the arrest was illegal on a specific statutory ground. Section 214(1) of Title 12 of the FSM Code provides that "[a]ny person making an arrest shall, at or before the time of arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest." There can be no question that for purposes of the statute Warren was arrested at his home in Deh: he was handcuffed with his arms behind him, and taken down the hill to the awaiting police car. Cf. FSM v. Edward, 3 FSM Intrm. 224, 232 (Pon. 1987) (person deemed arrested for purposes of being advised of his rights to remain silent "when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority"). The arresting officers made no effort to advise Warren of the reason for his arrest at or before his arrest. When Warren had asked what he had done wrong, the officers responded that he would find out at the station. Pohnpei relies on the fact that after his arrest at his home, and after being transported to the police station Warren evidently inquired why he was arrested, and was told that Rupen Amaraich had a complaint against him for firing a gun. The defendants point to the following portion of the transcript of Warren's March 17, 2004, deposition, which was admitted into evidence as defendants' exhibit 8:

Q: Did you talk to any of the police officers other than Mr. Soporro [sic] Norman?

A: Yeah, I asked those police officers who arrested me what did I do wrong?

Q: And what were their answers?

A: They said that they will . . . I will find out at the Police Station.

Q: And then, did you do that? Did you find out in the Police Station?

A: Yes.

Q: And what did you find out?

A: I found out that Rupen Amaraich filed a complaint against me that I was firing a gun, scaring him and his family with that gun.

Warren Dep. at 11-12. Pohnpei's contentions fail because the statute requires that the person "making an arrest shall, at or before the time of arrest, make every reasonable effort to advise the person

[13 FSM Intrm. 496]

arrested as to the cause and authority of the arrest" (emphasis added). Warren did not receive the information telling him he was arrested until well after his arrest, after he had been transported from his home to the police station. Furthermore, the foregoing transcript excerpt is not clear, but if Warren "found out" the reason for his arrest only as a result of his own inquiry, then this was also in violation of the statute, since it requires the arresting individual to take the initiative, and "make every reasonable effort" to inform the arrested person of the reason for the arrest. Law enforcement officers operate from a position of strength. An arrested individual may be sufficiently intimidated by the arrest process that he may not inquire why and under what authority he is being arrested. Thus under the statute, the onus is on the arresting officer "to advise the person arrested as to the cause and authority of the arrest."

      Accordingly, even if probable cause When the information was filed against Warren on July 27, 2000, he was charged with a violation 11 F.S.M.C. 1205, which is possessing a firearm without an identification card. This is a felony. 12 F.S.M.C. 1231(2). At common law, if an officer has probable cause to believe that a felony has been committed, he could arrest the suspect without a warrant. 1 Charles E. Torcia, Wharton's Criminal Procedure  59 at 294 (13th ed. 1989); see also Rauzi v. FSM, 2 FSM Intrm. 8, 17 (Pon. 1985) (holding that the FSM common law referred to in 54 F.S.M.C. 112(3) is that of the nations following the common law tradition as of beginning of constitutional government in 1979). There is one exception to this rule, however, and that is where a routine felony arrest takes place inside the suspect's home and there are no exigent circumstances (an emergency or a dangerous situation) to overcome the warrant requirement. Payton v. New York, 445 U.S. 573, 576, 583, 100 S. Ct. 1374, 1378, 63 L. Ed. 2d 639, 644, 648-49 (1980). The rationale for this exception is the "interest in preserving the privacy and the sanctity of the home." 445 U.S. at 588, 100 S. Ct. at 1381, 63 L. Ed. 2d at 652. While Warren was not in his home, he was seated on the porch of his home. It acknowledges the obvious that given the climate in Micronesia, people utilize the space outside their homes to a greater degree than do people in colder climates. It is fair to say that Warren was "at home" when he was seated on his porch. Applying for arrest and search warrants in this case would have "interpose[d] the magistrate's determination of probable cause between the zealous officer[s] and the citizen." 445 U.S. at 602, 100 S. Ct. at 1388, 63 L. Ed. 2d at 660. for arrest had existed in this case ) a determination which the court does and should not make, Edward, 3 FSM Intrm. at 230 (constitutional adjudications to be avoided if question can be decided on a statutory ground) ) the arrest was nevertheless illegal under a national law, 12 F.S.M.C. 214(1), and was thus actionable under 11 F.S.M.C. 701(3).

B.  The search of Warren's home

      As a search incident to a lawful arrest, police could search the "wingspan" area around Warren to insure that Warren did not have immediate access to a weapon that he could have used to prevent the officers from arresting him. Ludwig v. FSM, 2 FSM Intrm. 27, 34 (App. 1985); Yinmed v. Yap, 8 FSM Intrm. 95, 100 (Yap S. Ct. App. 1997). "The most basic principle" underlying a warrantless search incident to a lawful arrest is that the arrest itself must be justified, and "[w]hen the arrest is

[13 FSM Intrm. 497]

invalid, the search is invalid." United States v. Watson, 783 F. Supp. 258, 264 (E.D. Va. 1992). Because the arrest here was unlawful by virtue of 12 F.S.M.C. 214(1), any subsequent search of Warren, even if it had been limited to the "wingspan" search approved by Ludwig and Yinmed, would also have been improper.

      Moreover, even if probable cause for the arrest had existed, Officer Norman went beyond permissible parameters - Warren's person and wingspan - and conducted a search of Warren's entire house. He crossed the porch where Warren was sitting, kicked open the door to the laundry room area, and entered the house where he conducted a five to six minute search before emerging with the rifle. Coming as it did before Norman arrested Warren, this search cannot be considered one incident to a lawful arrest, even if logic were stretched to the breaking point and the whole house were deemed to be within Warren's "wingspan." The fact that the warrantless search of the house occurred before the arrest results in the two questions ) that of Warren's arrest and the warrantless search of the house ) becoming enmeshed in one another. As Warren states the matter, "an illegal search cannot justify a later arrest, and an arrest cannot be justified by a subsequent search." Closing Argument at 13. "The legality of the search must be tested on the basis of the information known to the police officer immediately before the search began." FSM v. Tipen, 1 FSM Intrm. 79, 88 (Pon. 1981). In Tipen, the court quoted from Johnson v. United States, 333 U.S. 10, 16-17, 68 S. Ct. 367, 370-71, 92 L. Ed. 436, 441-42 (1947) and it bears repeating here:

Thus the Government is obliged to justify the arrest by the search and at the same time to justify the search by the arrest. This will not do. An officer gaining access to private living quarters under color of his office and of the law which he personified must then have some valid basis in law for the intrusion. Any other rule would undermine "the right of the people to be secure in their persons, houses, papers and effects" and would obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.

Tipen, 1 FSM Intrm. at 88-89. The circularity of logic condemned by Tipen pervades the search issue present here. The results of the warrantless search of Warren's home are used to justify the arrest of Warren. At the same time, Warren's post search arrest is offered to justify the warrantless search of the house. As the Johnson court noted, "this will not do."

      Norman also testified, under oath, that Warren gave him permission to enter the house, but that he did not enter because he needed to have a document from the court, a reference to a search warrant. This is attempting to have it both ways. If he had permission, then no warrant was necessary; if he needed a warrant, then he did not have permission to enter the house. The court is not persuaded by Norman's testimony that Warren gave him permission to enter the house. The state must prove consent to conduct a search by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177, 94 S. Ct. 988, 996, 39 L. Ed. 2d 242, 253 (1974). Thus Norman entered without permission and conducted the search.

      Pohnpei also urges that the search of Warren's home fell within the plain view exception to the search warrant requirement. Pohnpei asserts that Norman saw the gun when he was standing outside on the porch, and that still standing outside the doorway he then reached into the house to get it from

[13 FSM Intrm. 498]

an uppermost shelf. Under the plain view exception to the warrant requirement, if a police officer has a right to be in a specific place, and has a plain view of items subject to seizure, then he may seize those objects and they may be introduced into evidence in a subsequent criminal proceeding. FSM v. Mark, 1 FSM Intrm. 284, 294 (Po. 1983). However, in making this argument, Pohnpei relies on the version of events that Norman offered while testifying falsely under oath. The argument thus rests on false assumptions that in turn are based on false testimony. As the court has noted based on its inspection of the house, it was impossible for any one of human size and capabilities to reach the shelf from outside the house. Furthermore, Norman could not have seen the gun from his position on the porch. He obtained the rifle only after he had entered the house and conducted a search lasting 5 to 6 minutes. The court must reject out of hand Pohnpei's contentions that the seized rifle fell within Norman's plain view while he was standing outside the house, and that he merely reached in to obtain it.

       Norman's conduct violated Warren's right to be free from unreasonable searches and seizures as proscribed by the Declaration of Rights of the FSM Constitution, FSM Const. art. IV,  5. Norman has been a police sergeant for 27 years, or nearly three decades. That the search was performed by an officer of this level of experience supports the conclusion that Norman's actions reflected unwritten, official policy in this type of situation. Indeed, Chief Roby testified that the officers who responded to the incident did not violate any department policies. A civil rights violation may "flow from a single decision by one official in response to a particular situation which [has] arisen in the field, and was not reflected in a written statute or regulation." Plais, 5 FSM Intrm. at 206. Accordingly, Pohnpei and the Department of Public Safety are civilly liable in damages for this violation of Warren's rights. The violation tacitly reflected official policy.

C.  Denial of permission to make phone calls (denial of access)

      The governing statute is 12 F.S.M.C. 218(3), which provides in part that it is unlawful "to refuse or fail to make a reasonable effort to send a message by telephone . . . to any person mentioned in Subsection (2) of this Section, provided the arrested person so requests." Those listed in Subsection (2) include counsel or a family member. Warren was allowed to call an attorney on the third day of his detention, i.e., on July 27, 2000. However, before that time, he was denied the opportunity to contact either family members or an attorney. Under the statute, jail personnel could have undertaken these calls for Warren, but they did not. Further, when Tosko Warren called the police station during the daytime on July 25, 2000, and asked to speak with her husband, she was denied the opportunity to speak with him and was not given any alternative time when she might call ) she was simply told "no." She did not make any further attempts to call Warren while he was in jail. Accordingly, Pohnpei and its Department of Public Safety are liable for this violation of a right guaranteed to Warren under this FSM statute.

D.  Detention beyond 24 hours

       Subsection 218(5) of Title 12 of the FSM Code makes it unlawful to "fail to release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed 24 hours." Warren was held for approximately sixty-three and a half hours in violation of this statute. Pohnpei, relying on a case from the trial division of the Trust Territory High Court, Trust Territory v. Kaneshima, 4 TTR 340, 346 (Pal. 1969), urges that the 24 hours referred to in the FSM statute actually means a reasonable time. Kaneshima interprets a Trust Territory statute, and not the FSM statute. Further, the facts of Kaneshima involve the seizure of a fishing vessel, and the court found that under the circumstances the

24-hour deadline [imposed by the Trust Territory statute] is not always practical and fails

[13 FSM Intrm. 499]

to recognize the physical conditions prevailing in the Trust Territory and an arrest in any outer island in any district necessarily requires travel for a matter of a day or more to reach the district center where the formal written charge may be issued and the accused may be brought before the court.

Id. at 347. No evidence indicates that transporting Warren from his house in Deh to Kolonia took more than a matter of minutes. Thus the rationale present in Kaneshima is absent here. This concern notwithstanding, under the FSM statute an arrested person must be taken before a judicial officer without unnecessary delay, not to exceed 24 hours. Estate of Mori, 10 FSM Intrm. at 10 n.1. Pohnpei and its Department of Public Safety are liable for this violation of the FSM statute.

      The concluding days of this trial occurred on July 25 through 29, 2005, or five years after the relevant events of July 24 through 27, 2000. At trial, and for the first time during the five years that this litigation has been pending, Pohnpei offered the defense that its failure to take Warren before a magistrate within 24 hours resulted from staffing shortages due to the cholera epidemic occurring in Pohnpei at that time. Police officers were engaged in various efforts to assist the public at that time. That police officers actively undertook these efforts is laudatory; however, the court must view this defense with a certain degree of skepticism. No mention was made of this "defense" in Pohnpei's December, 2001 answer, which was filed at a time far closer to relevant events than the July, 2005, trial when the defense was first raised. If the cholera epidemic had actually been a factor, then it stands to reason that it would have been raised in the answer to the complaint, and not five years after the fact. Pohnpei waived the defense of the cholera epidemic by not raising it in a timely manner.

       But even considering the merits of the defense, the court is not persuaded. A defendant's statutory right to be brought before the court within the 24 hours period goes to the heart of the procedural due process guaranteed to FSM citizens. The evidence that Pohnpei presented to condone its failure to afford Warren this right bespoke an after-the-fact, recently minted defense. The evidence offered in support did not convince the court that Pohnpei's efforts to assist the public prevented it from insuring that Warren was taken before a magistrate within the time required. And certainly, the cholera defense does not apply to corrections officers' conduct in not providing food to Warren, and in not permitting him to use the restroom and telephone. Pohnpei offered no evidence that the cholera outbreak caused the jail to be without staff. The Department of Public Safety had the ability to insure that Warren was taken before a judge within 24 hours of arrest.

E.  Denial of food and restroom access

      The only food provided to Warren during the approximately sixty-three and a half hours in jail was three donuts given to him by a prisoner. He also received a jar of water from that prisoner. He was permitted to use the restroom only once during that time, and was obliged to urinate through the window, and to defecate into the pages of a magazine which he then discarded through the window. Inhumane conditions of confinement constitute cruel and unusual punishment, Plais at 199, in derogation of the Declaration of Rights of the FSM Constitution: "cruel and unusual punishment [may not be] inflicted. FSM Const. art. IV,  8. In this case, Warren's punishment was imposed before he was charged with any offense. Although a criminal information was filed against Warren the day he was released, i.e., July 27, 2000, he was never convicted of any crime stemming from the incident. Accordingly, Pohnpei and the Department of Public Safety are liable for the violation of this right.

F.  Damages

      For a damages award, Plais again offers guidance. Noting that "the practice of denying citizens and counsel access to prisoners typically is employed, as it was here, to isolate citizens who are

[13 FSM Intrm. 500]

prisoners, and to permit prison authorities to violate the rights of persons without detection and without hindrance," the court in Plais awarded $5,000 for denial of access to family and to counsel. Plais involved denial of access for a longer time ) some sixty days. Here it lasted just over two and half days, or approximately one twenty-fourth of the time involved in Plais. However, it is also the case that Plais dates from fourteen years ago. Not only was Warren denied the right to make contact with anyone outside the jail, but his right to communicate with family members was further compromised when his wife was not permitted to speak with him on the telephone. The court awards $500.00 for this denial of access in violation of 12 F.S.M.C. 218(2) and (3).

      Plais was confined "in unconstitutional conditions of confinement for an aggregate of some 50 days," and this involved lack of access to working toilet facilities. 5 FSM at 213. The court in Plais awarded $5.00 per hour, for a total of $6,000.00. The conditions of Plais's confinement were substantially worse than those here ) the toilet in Plais's cell in the Pohnpei jail was clogged with waste matter that had overflowed onto the floor where he was required to sleep. Id at 198. However, absent were any allegations that Plais was denied food and water as Warren was. And again, Plais was from fourteen years ago. For the unconstitutional conditions of confinement here the court awards $10.00 an hour, or $635.00 ($10.00 X 63.5).

      For the residual effects of his detention that Warren experienced during the two weeks after he was released, including stomach problems and lingering numbness in his hands resulting from being handcuffed, Warren is awarded $150.00.

      The question of damages for being held in excess of 24 hours in violation of 12 F.S.M.C. 218(5) is not a point addressed by Plais, since Plais had already been convicted and was serving his sentence at the time his rights were violated. The right conferred by 12 F.S.M.C. 218(5) is unambiguous: the statute specifies that "under no circumstances" shall the time from arrest until the bail hearing exceed 24 hours "unless the location of the nearest court makes such appearance impossible." By definition the right comes into play before a person is either released or charged with a crime, not to mention tried and convicted. Notwithstanding Pohnpei's efforts to raise a defense five years after relevant events occurred, compliance with the statute is not difficult. No suggestion was made that court location played a role in the delay that occurred here. Given the dimensions of this important statutory right, the court awards Warren $3,000 for the more than two and a half days that Warren was held in jail. This is a separate award for the fact that he was not brought before a judge within the time required under the statute, and is separate from the award for denial of access by family members and counsel, and from the award for enduring unconstitutional conditions of confinement.

      Warren's arrest was illegal because it was in violation of 12 F.S.M.C. 214(1). He was not advised before or at the time of arrest the reason for the arrest and the authority under which he was being arrested. Warren is awarded an additional $500.00 resulting from Pohnpei's failure to comply with this statute.

      Lastly, the court addresses the question of damages for the warrantless search of Warren's home. The search was brief, lasting five to six minutes, and no evidence was adduced that Officer Norman damaged the house, although he kicked open the door. The sum of $200 is awarded for this unlawful search, resulting in the violation of Warren's right to be secure from such invasions under Article IV, Section 5 of the FSM Constitution.

IV.  Conclusion

      The court awards Warren $4,985.00 ($500.00 for denial of access + $635.00 for unconstitutional conditions of confinement + $150 for residual effects of detention + $3000.00 for

[13 FSM Intrm. 501]

violation of his right to be brought before a magistrate within 24 hours of arrest + $500.00 for violation of his right to be advised at the time of his arrest of the reason for the arrest and the authority under which it was made + $200.00 for the unreasonable search of Warren's home), plus costs, which will include the cost of the translation of documents presented as plaintiff's exhibit in evidence "J." Warren is also awarded his attorney's fees in accordance with 11 F.S.M.C. 701(3). By November 15, 2005, Warren's counsel will submit an affidavit of attorney's fees and costs in compliance with Jackson v. George, 10 FSM Intrm. 531, 533 (Kos. S. Ct. Tr. 2002). Pohnpei may respond to the affidavit by November 25, 2005.

      Let judgment be entered jointly and severally against the State of Pohnpei and its agency, the Department of Public Safety.

* * * *