KOSRAE STATE COURT TRIAL DIVISION

Cite as Kosrae v. Noda, 14 FSM Intrm. 37 (Kos. S. Ct. Tr. 2006)

[14 FSM Intrm. 37]

STATE OF KOSRAE,

Plaintiff,

vs.

STAN M. NODA,

Defendant.

CRIMINAL CASE NO. 159-04

ORDER DENYING MOTION FOR SUPPRESSION OF MARIJUANA;

ORDER TO SET TRIAL

Yosiwo P. George

Chief Justice

Hearing: August 10, October 4, 2005

Decided: January 13, 2006

APPEARANCES:

For the Plaintiff:  Paliknoa Welly, State Prosecutor

                            Office of the Kosrae Attorney General

                            P.O. Box 870

                            Lelu, Kosrae FM 96944

For the Defendant:   Harry A. Seymour, Esq.

                                   Office of the Public Defender

                                   P.O. Box 245

                                   Lelu, Kosrae FM 96944

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HEADNOTES

Search and Seizure

    The prohibition in Article II, Section 1(d) of the Kosrae State Constitution against

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any unreasonable search and seizure is to assure the individual of his fundamental right to the possession of and control over his own person and property. Kosrae v. Noda, 14 FSM Intrm. 37, 40 (Kos. S. Ct. Tr. 2006).

Search and Seizure

    It is generally agreed that for actions to constitute a search, there must be: 1) an examination of premises or a person; 2) in a manner encroaching upon oneís reasonable expectation of privacy; 3) with an intention, or at least a hope, to discover contraband or evidence of guilt to be used in prosecution of a criminal action. Kosrae v. Noda, 14 FSM Intrm. 37, 40 (Kos. S. Ct. Tr. 2006).

Search and Seizure

    The constitutional protection against unreasonable searches and limitation of powers of the police apply wherever an individual may harbor a reasonable expectation of privacy. The burden is on the government to justify a search without a warrant and the searchís legality must be tested on the basis of the information known to the police officer immediately before the search began. Kosrae v. Noda, 14 FSM Intrm. 37, 40 (Kos. S. Ct. Tr. 2006).

Search and Seizure ) Plain View

    A warrant is not necessary to authorize seizure when marijuana is in plain view of a police officer who has a right to be in the position to have that view. Kosrae v. Noda, 14 FSM Intrm. 37, 40 (Kos. S. Ct. Tr. 2006).

Search and Seizure ) Plain View

    The plain view doctrine has been recognized as an exception to the search warrant requirement, and the application of the plain view doctrine and the legality of the search must be analyzed upon the information known to the police immediately before the search began. Kosrae v. Noda, 14 FSM Intrm. 37, 40 (Kos. S. Ct. Tr. 2006).

Search and Seizure ) Plain View

    The analysis of warrantless seizure and application of the plain view doctrine proceeds with three requirements: First, the police officer must lawfully make the initial intrusion or lawfully be in a position to view a particular area. Second, the officer must discover the incriminating evidence inadvertently (not know in advance the location of certain evidence). Third, it must be immediately apparent to the police that the items they observe are either evidence of a crime or contraband. Kosrae v. Noda, 14 FSM Intrm. 37, 40-41 (Kos. S. Ct. Tr. 2006).

Search and Seizure ) Plain View

    When a police officer conducted a routine investigation of a vehicle involved in an accident and, since the vehicle had been abandoned and the driver had voluntarily left the scene of the accident with a bystander, was looking for the registration card to determine the vehicleís ownership (a proper action within the stateís governmental authority and police power); when the officer discovered the marijuana roaches in the ashtray inadvertently while looking for the vehicleís registration card; and when the officer, upon viewing the marijuana cigarette roaches in the ashtray, immediately recognized those items as contraband, the requirements for the application of the plain view doctrine have been satisfied and the warrantless search conducted of the defendantís vehicle was within the stateís governmental authority and police power and was not unreasonable and the marijuana evidence will not be suppressed. Kosrae v. Noda, 14 FSM Intrm. 37, 41-42 (Kos. S. Ct. Tr. 2006).

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COURTíS OPINION

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YOSIWO P. GEORGE, Chief Justice:

    On July 12, 2005, Defendant filed a Motion for Suppression of Evidence. On August 1, 2005, the Plaintiff filed an Opposition to the Motion for Suppression. The Motion was heard on August 10, 2005. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. Defendant sought suppression of the results of the Field Sobriety Tests (FSTs) performed by the Defendant. Defendant also sought suppression of the evidence of the two marijuana "roaches" that were found in the ashtray of his vehicle. By Order entered on September 22, 2005, I denied Defendantís Motion for Suppression in Part. Specifically, Defendantís Motion for Suppression of Evidence of the results of the Field Sobriety Tests was denied.

    The Defendantís Motion for Suppression of Evidence of the marijuana cigarette "roaches" was set for evidentiary hearing on October 4, 2005. Lt. Harry Jackson, Kosrae State Police Department, testified on behalf of the Plaintiff. After hearing from the witness and arguments of counsel, I took the matter under advisement. On January 12, 2006, I read my ruling in open court. Paliknoa Welly, State Prosecutor, appeared for the State. Defendant was represented by Harry Seymour, Public Defender. This order sets forth my ruling and reasoning.

    Defendant seeks suppression of the evidence of the two marijuana cigarette "roaches" that were found in the ashtray of his vehicle. Defendant argues that the a search warrant was required to search the vehicle, and without a search warrant, the marijuana was seized in violation of the constitutional protections against unreasonable search and seizure. Defendant argues that the marijuana "roaches" are fruit of the poisonous tree and must be excluded from evidence. Plaintiff opposes the suppression of both the results of the FSTs and the marijuana. The State opposes the Motion and argues that pursuant to the "plain view" doctrine, a warrant was not required to search the Defendantís vehicle.

I.  Factual Background.

    For purposes of disposition of Defendantís Motion, the following facts were presented at the hearings held on August 10, 2005 and on October 4, 2005. A telephone call was made to the Kosrae Police Station, reporting a vehicle that was zig zagging on the road and crossing the center line. Lt. Harry Jackson responded to the telephone call and set out to intercept the vehicle. Shortly thereafter, another telephone call was made to the Kosrae Police Station, that the same vehicle was involved in an accident.

    Lt. Jackson stopped at the accident site. The Defendant was standing on the road. The Defendant had left the driverís side door of his vehicle open. The vehicle was situated off the public road, on private property. At approximately the same time, a Kosrae State Hospital physician also arrived at the accident scene and offered to take the Defendant to the Kosrae State Hospital. The Defendant then left with the physician, in the physicianís private vehicle, to Kosrae State Hospital. The Defendant left his vehicle at the accident scene with the driver side door in an open position.

    Lt. Harry Jackson was present at the accident scene with three other police officers. Lt. Harry Jackson then approached the car to conduct a routine investigation following a vehicle accident. Lt. Jackson looked into the vehicle to locate the vehicle registration card, through the driver side door that had been left open by the Defendant. While looking for the registration card, Lt. Jackson saw the open ashtray, which held two marijuana cigarette "roaches."

    Lt. Jackson was on private property when he looked into the vehicle. The owner of the property

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was not present. The three police officers who accompanied Lt. Jackson did not participate in the search of the vehicle.

II.  Analysis.

    Defendant argues that a search warrant was necessary for the Kosrae State Police to the inspect a private vehicle on private property. Therefore, Defendant argues that the warrantless search of the Defendantís vehicle violated the constitutional protection against unreasonable searches and invasions of privacy. Defendant seeks suppression of the evidence of the marijuana found in the ashtray during the Kosrae State Police Officerís search of the vehicle.

    The State argues that it had the right to conduct a routine inspection of the vehicle, which had been involved in an accident. The State argues that it was properly conducting a search of the vehicle for the registration card to determine the vehicleís owner, when the marijuana was seen in plain view of the Police Officer. Furthermore, the State argues that Defendant had abandoned the vehicle, by departing the scene of the accident with the doctor to go to the Kosrae State Hospital voluntarily, leaving the driverís side car door open. Plaintiff argues that no search warrant was required to inspect a vehicle involved in an accident. Plaintiff argues that the plain view doctrine applies here, a valid exception to the search warrant requirement. Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983). The burden is upon the State to justify the search of Defendantís vehicle without a warrant.

    The starting point of analysis of Defendantís claim of an unreasonable search and seizure begins with the Declaration of Rights enumerated in the Kosrae State Constitution. FSM v. George, 1 FSM 449 (Kos. 1984). The prohibition in Article II, Section 1(d) of the Kosrae State Constitution against any unreasonable search and seizure is to assure the individual of his fundamental right to the possession of and control over his own person and property. Kosrae v. Alanso, 3 FSM Intrm. 39, 42 (Kos. S. Ct. Tr. 1985). It is generally agreed that for actions to constitute a search, there must be: 1) an examination of premises or a person; 2) in a manner encroaching upon oneís reasonable expectation of privacy; 3) with an intention, or at least a hope, to discover contraband or evidence of guilt to be used in prosecution of a criminal action. FSM v. Mark, 1 FSM Intrm. 284, 298 (Pon. 1983).

    The Constitutional protection against unreasonable searches and limitation of powers of the police apply wherever an individual may harbor a reasonable expectation of privacy. FSM v. Tipen, 1 FSM Intrm. 79 (Pon. 1982). The burden is on the government to justify a search without a warrant. Id. The legality of the search must be tested on the basis of the information known to the police officer immediately before the search began. Id. Furthermore, a warrant is not necessary to authorize seizure when marijuana is in plain view of a police officer who has a right to be in the position to have that view. FSM v. Mark, 1 FSM 284 (Pon. 1983).

    It is undisputed that a Kosrae State Police Officer conducted a warrantless search of the Defendantís vehicle, after the vehicle has run off the road, and after the Defendant had left the scene of the accident to go to the hospital with a bystander.

    The plain view doctrine has been recognized as an exception to the search warrant requirement. FSM v. Mark, 1 FSM Intrm. 284 (Pon. 1983). The application of the plain view doctrine and the legality of the search must be analyzed upon the information known to the Kosrae State Police Officer immediately before the search began. The analysis of warrantless seizure and application of the plain view doctrine proceeds with three requirements: First, the police officer must lawfully make the initial intrusion or lawfully be in a position to view a particular area. Second, the officer must discover the incriminating evidence inadvertently (not know in advance the location of certain evidence). Third, it

[14 FSM Intrm. 41]

must be immediately apparent to the police that the items they observe are either evidence of a crime or contraband. Texas v. Brown. 460 U.S. 730, 736-37, 103 S. Ct. 1535, 1540-41, 75 L. Ed.2d 502, 510 (1983). See also Harden v. California,

496 U.S. 128, 136-37, 110 S. Ct. 2301, 2308. 110 L. Ed. 2d 112, 123 (1990). The warrantless seizure of marijuana observed in ashtrays in vehicles involved in traffic violations, has been affirmed in many United States jurisdictions. See New Jersey v. Nunez, 620 A.2d 1061 (N.J. Super. 1993) (seizure of two marijuana roaches observed in the open ashtray); People v. Aguilar, 211 Cal. Rptr. 333 (Cal. Ct. App. 1985) (seizure of marijuana cigarette burning in ashtray and a box containing marijuana).

    In evaluation the application of the plain view doctrine to this matter, the three-part test set forth in Texas v. Brown is adopted. The analysis first turns to whether the Lt. Jackson has a right to inspect the Defendantís vehicle to look for the registration card. Lt. Harry Jackson conducted a routine investigation of vehicle accident, which had been reported to the Central Police Station. By the time Lt. Jackson had arrived at the scene, the vehicle had left the road and had come to rest on private property. The position of the vehicle provided probable cause for Lt. Jackson for criminal offense such as negligent driving and other traffic infractions. Lt. Jackson proceeded to conduct a routine investigation of a vehicle involved in an accident. This routine investigation included looking for the registration card to determine ownership of the vehicle. Determining ownership of the vehicle would permit the Kosrae State Police to inform the owner of the vehicle of the accident, if the owner was someone other than the Defendant. I conclude that the search conducted by Lt. Jackson to locate the registration card and determine of the owner of the vehicle was a proper action within the governmental authority and police power of Kosrae State. New York v. Class, 475 U.S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986) (No reasonable expectation of privacy in VIN (vehicle identification number), and police officerís viewing of the VIN of a vehicle stopped for traffic offenses is not a violation of the fourth amendment).

    The search was further necessitated by the Defendantís abandonment of the subject vehicle. The Defendant left the scene of the accident voluntarily with a bystander physician and was transported to the hospital for treatment. Defendant left the vehicle with the driver side door open. Therefore, at the time of Lt. Jacksonís proper search of the vehicle for the registration card, the vehicle had been abandoned by the Defendant, even leaving his door open. Lt. Jackson was lawfully conducting a search for the registration card for the vehicle to determine ownership, as the Defendant had left the scene of the accident and abandoned the vehicle: the first prong of the plain view doctrine is satisfied:

    Second, the officer must discover the incriminating evidence inadvertently and not know in advance the location of certain evidence. Based upon the evidence presented at the hearing, Lt. Jackson discovered the marijuana roaches in the ashtray inadvertently. Lt. Jackson was looking for the registration card for the vehicle when he saw the marijuana roaches in the open ashtray. The second prong of the plain view doctrine is satisfied.

    Third, it must be immediately apparent to the police that the items they observe are either evidence of a crime or contraband. Lt. Jackson, upon viewing the marijuana cigarette roaches in the ashtray, immediately recognized those items as contraband. It was immediately apparent to Lt. Jackson that the items in the open ashtray were marijuana cigarette roaches, which was illegal to possess. The third and last prong of the plain view doctrine is satisfied. Through the application of all three prongs set forth in the Texas v. Brown case, I conclude that the plain view doctrine requirements have been met by the State.

    Based upon the evidence presented at the hearing and the above analysis, I conclude that the requirements for the application of the plain view doctrine have been satisfied. Accordingly, the warrantless search conducted by Lt. Jackson on Defendantís vehicle was within the governmental

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authority and police power of Kosrae State, and was not unreasonable. Therefore, the search did not require a warrant. The observation and warrantless seizure of the marijuana cigarette roaches was permissible under the plain view doctrine. The Defendantís Motion for Suppression of Evidence of Marijuana is denied.

III.  Order to Set Trial

The Clerk shall set this matter for trial on the next available calendar.

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