FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Wainit, 14 FSM Intrm. 51 (Chk. 2006)

[14 FSM Intrm. 51]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

TADASHI WAINIT,

Defendant.

CRIMINAL CASE NO. 2004-1512

FINDINGS BY THE COURT UPON TRIAL RULING ON MOTION

Martin Yinug

Associate Justice

Trial: December 12-15, 2005 and January 17-20, 2006

Decided: February 6, 2006

APPEARANCES:

For the Plaintiff:  Matthew L. Olmsted, Esq.

                             Assistant Attorney General

                             FSM Department of Justice

                             P.O. Box PS-105

                             Palikir, Pohnpei FM 96941

For the Defendant:  Peter J. Stelzer, Esq.

                                  Office of the Public Defender

                                  P.O. Box 425

                                  Colonia, Yap FM 96943

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HEADNOTES

Criminal Law and Procedure ) Defenses; Statutes ) Construction

    Since by statute, the classification of the titles, chapters, subchapters, and sections of the FSM Code, and the headings thereto, are made for the purpose of convenient reference and orderly arrangement, and since Congress has specifically prohibited that any implication, inference, or presumption of a legislative construction be drawn therefrom, the court can give no weight or credence to and must reject any argument, implication, inference, or presumption to be draw from a subchapter’s heading or from a subsection’s arrangement in that subchapter. FSM v. Wainit, 14 FSM Intrm. 51, 54

[14 FSM Intrm. 52]

(Chk. 2006).

Criminal Law and Procedure ) Defenses

    When the government produced evidence that the defendant threatened eleven national police with the harm of loss of liberty ) detention on Udot for an unspecified time ) if they did not abandon their attempt to search his Udot residence and when Section 517(1)(c)’s language, by its specific terms, applies to threats to any public official, not just to judges or politicians, a motion to acquit on the ground no evidence was introduced of threatening harm to a public official with purpose to influence him or her to violate his or her known legal duty will be denied. FSM v. Wainit, 14 FSM Intrm. 51, 54 (Chk. 2006).

Criminal Law and Procedure ) Defenses; Criminal Law and Procedure ) Discovery

    When the defendant’s qualified immunity defense was not disclosed in his response to the government’s Rule 16(b)(1)(C) discovery request and it should have been because it goes beyond a claim that the government failed to prove all elements of the offense and because it is not a claim that he acted legally based on the facts but that he is immune from criminal liability even if he did not act legally, this defense could be rejected on the ground of non-disclosure alone. FSM v. Wainit, 14 FSM Intrm. 51, 55

(Chk. 2006).

Criminal Law and Procedure ) Defenses; Public Officers and Employees; Torts ) Governmental Liability

    Qualified immunity is not a defense to a criminal prosecution. "Qualified immunity" partially shields public officials performing discretionary functions from civil liability and damages. Public officials are not immune or exempt from criminal liability and prosecution. FSM v. Wainit, 14 FSM Intrm. 51, 55 (Chk. 2006).

Criminal Law and Procedure ) Defenses; Public Officers and Employees

    A law enforcement officer is one whose duty is to preserve the peace. A mayor has the duty to faithfully implement the municipality’s laws and ordinances, but he does not have the power of arrest, and even if he were a law enforcement officer, he would not be immune from prosecution because a law enforcement officer may be prosecuted for an offense committed while he was arresting someone. FSM v. Wainit, 14 FSM Intrm. 51, 55 (Chk. 2006).

Criminal Law and Procedure ) Arrest and Custody

    Any person may perform a "citizen’s arrest." Unlike an arrest by a law enforcement officer, a "citizen’s arrest" cannot be based upon either a reasonable ground to believe or probable cause to believe a crime has been committed. A "citizen’s arrest" is valid only if the one arrested was actually in the act of committing a criminal offense. FSM v. Wainit, 14 FSM Intrm. 51, 55 n.2 (Chk. 2006).

Criminal Law and Procedure ) Defenses; Search and Seizure

    A belief that a search warrant is invalid is not a defense to a prosecution for resisting a search warrant, even if it is an invalid search warrant. If a defendant believed the national police’s search warrant was invalid or had expired, his only lawful actions or remedies were to not interfere with the search and then to move to suppress any evidence seized in the search, or to institute a civil suit for damages, or both. FSM v. Wainit, 14 FSM Intrm. 51, 55-56 (Chk. 2006).

Search and Seizure

    If the building to be searched is closed, the person executing the search warrant shall first demand entrance in a loud voice and state that he desires to execute a search warrant, and if the doors, gates, or other bars to the entrance are not immediately opened, he may force an entrance, by breaking them if necessary. Thus, since the defendant’s residence was completely vacant at the time with no one there to grant them entry, the national police had every right to force an entry into the residence. FSM v. Wainit, 14

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FSM Intrm. 51, 56-57 (Chk. 2006).

Search and Seizure

    Once a search has been completed, the policeman taking property under a search warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or shall leave the copy and receipt at the place from which the property was taken. But, although termed "caretakers" of the property, when the municipal police did not occupy the property and could they provide entry to the residence, they were thus not persons from whom or from whose premises the property was taken and upon whom a copy of the search warrant had to be served, and since the search was not finished on September 5, 2002, whether a copy of the search warrant was left with the municipal police on September 5, 2002 is irrelevant. FSM v. Wainit, 14 FSM Intrm. 51, 57 (Chk. 2006).

Criminal Law and Procedure ) Prosecutors; Search and Seizure; Torts ) Governmental Liability

    The mere presence of prosecutors during a search is not per se improper. A prosecutor may assist in a search to provide legal advice. The reason a prosecutor might not want to participate in investigative matters such as executing a search warrant is that prosecutors only enjoy a limited immunity from civil liability when participating in investigative acts, unlike the absolute immunity from civil liability that prosecutors enjoy for their actions connected with their role in judicial proceedings. FSM v. Wainit, 14 FSM

Intrm. 51, 57 (Chk. 2006).

Search and Seizure

    Although a person has a right to be present while his residence is searched as long as he does not interfere with the search, members of the public and others who entered the residence after the owner had no right to be present during the residence’s search. FSM v. Wainit, 14 FSM Intrm. 51, 59 (Chk. 2006).

Criminal Law and Procedure ) Defenses; Search and Seizure

    Although the remedy of self-help or resistance to a search thought to be unlawful is barred, the court has not decided whether there are some unlawful searches, with or without warrant, the circumstances of which would be so provocative to a reasonable man that the seriousness of the offense of resistance ought to be mitigated as a result of such provocation, and when the defendant had the opportunity to put on such evidence at trial but no such showing (by a preponderance of the evidence), was made, the court did not need to decide whether such an exception could be permitted since the search warrant execution attempt was neither provocative nor was the force used unreasonable. FSM v. Wainit, 14 FSM Intrm. 51, 59-60 (Chk. 2006).

Search and Seizure

    A person whose residence is being searched would, of course, be within his rights to tell the search party that if it insisted upon continuing its search it could do so over his protest, but that, in his view, the search warrant was invalid or expired and he would pursue every available civil remedy and suppression motion available to him so that the search party might want to reconsider whether it wanted to continue. FSM v. Wainit, 14 FSM Intrm. 51, 60 n.8 (Chk. 2006).

Public Officers and Employees

National police officers are public officials. FSM v. Wainit, 14 FSM Intrm. 51, 60 (Chk. 2006).

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COURT’S OPINION

MARTIN YINUG, Associate Justice:

    Trial was held in this matter on December 12-15, 2005 and January 17-20, 2006. The charges in this case stem from the government’s attempt to execute a search warrant at defendant Tadashi Wainit’s residence on Udot on September 6, 2002. Early in trial, Wainit objected to the admission of certain undisclosed oral statements of his. Wainit was given leave to file and serve, by January 3, 2006, a motion (and supporting brief) to strike those statements already admitted and to bar any further mention or use of them. Wainit never filed any such motion or brief. The objections are therefore deemed waived and not preserved for appeal.

    After the government’s case-in-chief, Wainit moved for a judgment of acquittal on all counts under Criminal Procedure Rule 29(a). The court did not rule on the motion at that time, reserving its ruling until after closing arguments. Wainit asked for, and was granted, leave to supplement his oral motion with a written submission, to be filed by January 27, 2006. On January 27, 2006, Wainit filed his Proposed Findings and Memorandum of Law. The government filed its response and opposition on January 31, 2006.

I.  Motion for Judgment of Acquittal

    Wainit contends that Counts 1-11 must be dismissed because, in his view, the statute under which those counts were charged, 11 F.S.M.C. 517(1)(c) (threatening harm to a public official with purpose to influence him or her to violate his or her known legal duty), cannot be applied to the factual situation alleged in this case. No points and authorities in support of dismissing Counts 1-11 were cited in Wainit’s supplemental submission.

    Wainit first contends that subsection 517(1)(c) cannot be applicable because that subsection appears in Title 11, Chapter 5, Subchapter III, and Subchapter III is entitled "Public Corruption"; because the other sections in that subchapter all involve public corruption such as bribery; and because the allegations in this case are not the type generally considered to be corruption charges. Congress has specifically prohibited this method of statutory construction. "The classification of the titles, chapters, subchapters, and sections of this code, and the headings thereto, are made for the purpose of convenient reference and orderly arrangement, and no implication, inference, or presumption of a legislative construction shall be drawn therefrom." 1 F.S.M.C. 210. The court therefore can give no weight or credence to this argument. The court is required to and must reject any implication, inference, or presumption Wainit asks it to draw from the subchapter’s heading or subsection 517(1)(c)’s arrangement in that subchapter.

    Wainit also contends that the elements of section 517(1)(c) ) threaten harm to a public official with the purpose to influence him or her to violate his or her known legal duty ) are inapplicable because the statute only covers getting judges and politicians to do or not do something and that is not the situation here. Wainit also contends that the government did not produce evidence that Wainit threatened harm to any of the eleven national police officers named as victims. The government did produce evidence that Wainit threatened those eleven national police with the harm of loss of liberty ) detention on Udot for an unspecified time ) if they did not abandon their attempt to search Wainit’s Udot residence. Section 517(1)(c)’s language, by its specific terms, applies to threats to any public official, not just to judges or politicians.

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The motion for judgment of acquittal on Counts 1-11 is therefore denied.

    Wainit also contends that Counts 12-22 must be dismissed because Wainit has qualified immunity from prosecution and because he had probable cause to arrest the eleven national police officers. (By the time Wainit submitted his written supplement, these grounds were urged as a basis to acquit Wainit on all counts.) Wainit contends that he believed the national police were in his Udot residence illegally on September 6, 2002 (because, in his view, they had an expired and therefore invalid search warrant) and that as Mayor of Udot he could arrest them for trespass and had qualified immunity from prosecution if he did so. In a similar vein, Wainit contends that he had probable cause to arrest the national police for trespass, a misdemeanor offense under an Udot municipal ordinance.

    The government objects to these defenses being raised for the first time at trial when they were not disclosed in Wainit’s response to the government’s Rule 16(b)(1)(C) discovery request. Wainit should have disclosed the qualified immunity defense in his discovery disclosure because it goes beyond a claim that the government failed to prove all elements of the offense and because it is not a claim that he acted legally based on the facts but that he is immune from criminal liability even if he did not act legally. This defense could be rejected on this ground alone.

    But what is more important, qualified immunity is not a defense to a criminal prosecution. "Qualified immunity" partially shields public officials performing discretionary functions from civil liability and damages. Black’s Law Dictionary 753 (7th ed. 1999); see also Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410 (1982). The cases that Wainit cites in support of his contention that he holds a qualified immunity are civil torts cases. "Qualified immunity" is not a defense to a criminal prosecution. Public officials are not immune or exempt from criminal liability and prosecution. See 11 F.S.M.C. §§ 104(9), 301, 301A.

    Furthermore, Wainit is not a law enforcement officer. A law enforcement officer is one whose duty is to preserve the peace. Black’s Law Dictionary 891 (7th ed. 1999). As Mayor of Udot, Wainit had the duty to "faithfully implement" the laws and ordinances of Udot. Udot Const. art. VI, § 1. He did not have the power of arrest. However, as stated above, even if Wainit were a law enforcement officer, he would not be immune from prosecution. A law enforcement officer may be prosecuted for an offense committed while he was arresting someone. Loch v. FSM, 1 FSM Intrm. 566, 568-75 (App. 1984).

    Wainit further asserts that he had probable cause to believe the national police were committing a criminal offense, trespass, and thus was justified in arresting or having them arrested. He bases this assertion solely upon his asserted belief that the search warrant used on September 6, 2002 had expired and that the previous day’s search had been without a warrant. This is the defense of the self-help of resistance to invalid search warrant in another guise.

    The court has already ruled that this is not an available defense to charges arising from resisting a search warrant. A belief that a search warrant is invalid is not a defense to a prosecution for resisting a search warrant, even if it is an invalid search warrant. FSM v. Wainit, 13 FSM Intrm.433, 444-48 (Chk. 2005); see also FSM v. Wainit, 11 FSM Intrm. 424, 434-37 (Chk. 2003). If Wainit believed the national police’s search warrant was invalid or had expired, his only lawful actions or remedies were

[14 FSM Intrm. 56]

to not interfere with the search and then to move to suppress any evidence seized in the search, or to institute a civil suit for damages, or both.

    Although Wainit tries to characterize this ground as something other than the self-help defense, he [14 FSM Intrm. 56] fails. No matter how he articulates this asserted defense, the defense is based on his belief that the search warrant was defective, invalid, or expired. This belief, even if later proven true, does not entitle Wainit to prevent or stop a search. His remedies are those stated above.

Accordingly, the motion for judgment of acquittal is denied.

II.  Findings upon Trial

    At trial, the court heard the testimony of Lt. Isoda Nakashima, Sgt. Benjamin Bakin, Executive Officer (XO) Jack Asher, Officer Snider James, Maj. Kerson Rizal (testifying under a cooperation agreement with the government), Officer Sirrel James, Officer Atner Hadley, Officer Jim Retalmai, KM Mariano, defendant Tadashi Wainit, Chuu Joseph, YM Aizawa, Biro Bisalen, Nikite Otokichy, Kelly Miller, and Raymond Jack. Based upon the witnesses’ testimony and the exhibits admitted into evidence, I make the following

General Findings.

    On each count of Counts 1-11, threatening harm to a public official with purpose to influence him or her to violate his or her known legal duty, 11 F.S.M.C. 517(1)(c), I find the defendant Tadashi Wainit, guilty.

On each count of Counts 12-22, resisting arrest or other law enforcement, 11 F.S.M.C. 502(2), I find the defendant Tadashi Wainit, guilty.

The above general findings are based upon the following

Special Findings and Conclusions,

    which are made pursuant to Criminal Procedure Rule 23 and are based upon careful consideration of the witnesses’ testimony and the exhibits admitted into evidence.

    On September 5, 2002, the national police executed separate search warrants at the Udot Municipal Building on Udot, the office of T & S Mart (Wainit’s business) on Weno, and at Wainit’s residence on Udot. Wainit was present at the T & S Mart office search. He eventually learned, by radio, of the other searches on Udot.

    The national police were armed with a copy or copies of the relevant search warrants to be left at the places searched. No one was present at Wainit’s Udot residence when, on September 5, 2002, the national police arrived to search the place. An Udot Municipal Police substation with a radio and a holding cell was very close nearby, in effect acting as a guard post for Wainit’s residence. The two Udot municipal police officers stationed there had neither a key to any door of Wainit’s residence nor the authority to enter or permit entrance to Wainit’s residence. The national police gained entry to the residence by breaking through a screen on a latched screen door and finding an unlocked sliding door behind the screen door. All other entrances were locked.

    "If the building [to be searched] . . . be closed, [t]he [person executing the search warrant] shall first demand entrance in a loud voice and state that he desires to execute a search warrant . . . . If the

[14 FSM Intrm. 57]

doors, gates, or other bars to the entrance be not immediately opened, he may force an entrance, by breaking them if necessary." 12 F.S.M.C. 311(2). Since Wainit’s residence was completely vacant at the time with no one there to grant them entry, the national police had every right to force an entry into the residence.

    While the searches at the other two sites were completed on September 5, 2002, the search at Wainit’s residence, a large three-story concrete structure, was not. That search had started later in the day than the other two.

    Copies of search warrants were left at the places searched. A copy of the search warrant for the Wainit residence was left with Udot Municipal Police Officer KM Mariano by FSM National Police Sergeant Benjamin Bakin. Sgt. Bakin was not required to leave a copy with him or any person at the Udot municipal police substation. Once a search has been completed,

[t]he policeman taking property under a search warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or shall leave the copy and receipt at the place from which the property was taken.

    12 F.S.M.C. 307(1). Although termed "caretakers" of the property by Wainit, the municipal police did not occupy the property. Nor could they provide entry to the residence. They were thus not persons "from whom or from whose premises the property was taken" and upon whom a copy of the search warrant had to be served. Furthermore, the search was not finished on September 5, 2002. Thus whether a copy of the search warrant was left with the municipal police on September 5, 2002 is irrelevant.

    Sometime around 4:00 p.m., the search of Wainit’s Udot residence ceased and Sgt. Bakin and a state police officer were left there to secure the premises until the national police could resume their search the next day. The rest of the search party returned to Weno.

    Early the next morning, before any national police had returned to search, Sgt. Bakin left Wainit’s Udot residence and returned to Weno because he felt threatened by the Udot municipal police officers and feared for his safety. The state police officer also left.

    The national police returned to resume the search of Wainit’s Udot residence early in the afternoon of September 6, 2002. The search party was transported to Udot by the FSS Palikir, which had arrived in Truk Lagoon the previous evening. The search party was commanded by Lt. Isoda Nakashima with Executive Officer (XO) Jack Asher as his second in command. In total, the search party put ashore consisted of eleven national police officers (including the two commanding officers and Sgt. Bakin), accompanied by two FSM Assistant Attorneys General, Matthew Crabtree and Catherine Wiehe, who were there to assist by providing legal advice, as needed. Neither attorney had any command responsibilities.

    Wainit contends that the mere presence of prosecutors during a search is somehow, per se, improper. The court can find no basis for concluding so. A prosecutor may assist in a search to provide legal advice. The reason a prosecutor might not want to participate in investigative matters such as executing a search warrant is that prosecutors only enjoy a limited immunity from civil liability when participating in investigative acts, unlike the absolute immunity from civil liability that prosecutors enjoy for their actions connected with their role in judicial proceedings. See Liwi v. Finn, 5 FSM Intrm. 398, 401-02 (Pon. 1992); Jano v. King, 5 FSM Intrm. 388, 391-97 (Pon. 1992); and cases cited therein.

[14 FSM Intrm. 58]

    The police officers had been briefed twice before landing on Udot that they were to follow their chain of command and that they were not to use their firearms unless and until they received a direct order to do so from Lt. Nakashima. The national police were armed with either 9mm sidearms or SLR rifles, which came from the FSS Palikir. At all times during the succeeding series of events, those weapons either remained (in the case of the sidearms) holstered or (in the case of the rifles) held in an upright safe position.

    A large crowd, including Udot municipal police officers (not always identifiable as such because many were not in a uniform of any kind), was gathered in the vicinity of the dock and the municipal police substation adjacent to Wainit’s residential property. Kerson Rizal, who at that time was simultaneously a captain in the Chuuk State Police and the Chief of Police of the Udot Municipal Police, met the search party on the dock. The search warrant for Wainit’s residence was given to Rizal. (He had not seen it before although its existence had been mentioned to him during the search of the Udot Municipal Building the day before.) Rizal had a lengthy, and somewhat heated, discussion with Lt. Nakashima and Assistant Attorney General Crabtree over whether the national police could continue their search.

    The discussion centered on whether the national police’s search warrant was still valid or whether it had expired the day before. At one point in the discussion, Crabtree told Rizal he was under arrest "for defrauding the national government." No national police officer tried to effect an arrest of Rizal. Crabtree did not have the authority to issue orders to the national police. Rizal responded by saying that if they were going to arrest him, he would arrest them for trespass. No attempt was made to effect this suggestion either.

    The national police were also interested in identifying and possibly arresting two Udot municipal officers that Sgt. Bakin felt had threatened him. They, however, did not attempt to arrest those two, although the two were identified.

    After some time, it started to rain and Crabtree suggested that everyone move up to Wainit’s house where they would have shelter under the overhanging balconies. Everyone adopted this sensible suggestion. Crabtree explained why the search party thought their search warrant was still valid. Eventually, Rizal was convinced to cooperate with the national police’s intended search and translated Crabtree’s explanation and request for cooperation to the assembled crowd. Rizal designated an Udot municipal police officer, Chuu Joseph, to be an observer while the national police searched. Six national police remained outside to secure the premises. The rest of the national police, the two attorneys, and the designated observer entered the residence. The search proceeded uneventfully for an hour.

    Wainit, his wife and some family members then arrived by boat from Weno. He knew from radio communications that the national police were searching his Udot residence. He was angry.

    Wainit entered his house by using a key to one of the doors. He was followed inside by family members, municipal police officers, and members of the crowd outside. He demanded to know by what authority the national police were searching his house. He was directed to Crabtree to answer his questions. Wainit was informed that the national police had a search warrant which had been given to Rizal. Wainit went and got the search warrant copy from Rizal. He then returned and argued loudly with

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Crabtree that the warrant was invalid and had expired.

    Wainit had a right to be present while his residence was searched as long as he did not interfere with the search. See 12 F.S.M.C. 307(4) (a search warrant "inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, or in the presence of at least one credible person other than" those two). The members of the public and the municipal police who entered the residence after Wainit had no right to be present during the search of the residence.

    After ten or fifteen minutes of Wainit’s shouting at Crabtree, Wainit ordered the search party arrested. At some point, Crabtree said, "use force." No national police tried to use force. As before, Crabtree did not have the authority to give orders. The municipal police seized and handcuffed the search party members and disarmed most of them. The municipal police did not pat down the persons they made prisoners and so did not get every national police sidearm. (The municipal police had no firearms training and did not handle the firearms they seized in as safe a manner as the national police had.) Nor did the municipal police engage in any of the other formalities that would normally accompany either an arrest or an investigatory detention. Wainit’s intention was to stop the search. Wainit’s actions created a substantial risk of bodily injury not only to the national police but also to all others present if the national police had resisted seizure by the municipal police.

    Wainit ordered the municipal police to take the search party down to the dock, during which time Wainit continued shouting at the search party. At the dock, Wainit gave the search party members a choice: either agree to leave Udot immediately or they would be detained on Udot. The search party agreed to leave. Wainit then ordered the municipal police to release them and return their firearms. The municipal police obeyed Wainit and released the search party and returned their firearms. The search party departed. Because the search party never completed the search and left abruptly, the search warrant inventory that was supposed to be left at the premises searched when the search was completed was not finished until the next month.

    The court, in its September 21, 2005 Order Disposing of Pretrial Motions, noted that, although the remedy of self-help or resistance to a search thought to be unlawful was barred, it did not decide whether there were "some unlawful searches, with or without warrant, the circumstances of which would be so provocative to a reasonable man that the seriousness of the offense of resistance ought to be mitigated as a result of such provocation." Wainit, 13 FSM at 445, 448 (quoting United States v. Ferrone, 438 F.2d 381, 390 n.19(c) (3d Cir.), cert. denied, 402 U.S. 1008 (1971)). The court gave Wainit the opportunity to put on evidence at trial that the September 6, 2002 attempted search warrant execution was so provocative or the force was so unreasonable that the seriousness of the resistance to the search warrant execution ought to be mitigated.

    Only if Wainit made that showing (by a preponderance of the evidence), would the court need

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to decide whether such an exception could be permitted. Wainit did not. The search warrant execution attempt was neither provocative nor was the force used unreasonable. (In fact, the only force used by the national police was to gain entry through a screen door on September 5, 2002 and to open locked containers in the house on September 6, 2002.) The court therefore does not need to decide whether this possible exception to the bar of self-help is ever an available defense to charges stemming from resisting a search because neither the provocation nor unreasonable force was present to assert that exception in this case.

    Even if Wainit had not ordered the search party’s arrest or only ordered it after Crabtree said "use force," Wainit is liable for the offenses charged. Even if the municipal police spontaneously seized the search party upon hearing Crabtree say "use force," Wainit asserted his control over the situation immediately thereafter. The municipal police obeyed his orders unquestioningly. Wainit could have ordered [14 FSM Intrm. 60] the municipal police to release the search party and to allow the search party to continue with their search. The municipal police would have obeyed such an order. Instead Wainit threatened the search party with indefinite detention unless they agreed to leave.

    The national police search party members were public officials. 11 F.S.M.C. 104(11) (law enforcement officers are public officials). Wainit’s actions in resisting the national police’s discharge of their duty to search his Udot residence put the search party (as well as all others present) in substantial risk of bodily injury. The national police would have had to employ substantial force to overcome this resistance. Wainit threatened the search party members with the harm of continued loss of their liberty for an unspecified time if they did not abandon their duty to search and leave Udot immediately. The national police had a legal duty to execute searches.

III. Conclusion

    The elements of the two offenses contained in the 22 counts were proven beyond a reasonable doubt. The motion for judgment of acquittal was denied.

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Footnotes:

1.  Any person may perform a "citizen’s arrest." Unlike an arrest by a law enforcement officer, a "citizen’s arrest" cannot br based upon either a reasonable ground to believe or probable cause to believe a crime has been committed. A "citizen’s arrest" is valid only if the one arrested was actually "in the act of committing a criminal offense." 12 F.S.M.C. 211(2).

2.  Rizal had, as Udot Chief of Police, been aware of the searches on Udot and had brought food to Sgt. Bakin at Wainit’s Udot residence on the night of September 5, 2002. On the morning of September 6, 2002, he had met with Wainit and Wainit’s then attorney, at Wainit’s T & S Mart office on Weno.

3.  Chuu Joseph had been designated as a credible observer when Wainit was absent.

4.  For reasons that are made clear below, even if Wainit did not order the search party’s arrest or only ordered it after Crabtree said "use force," criminal liability for these offenses attaches to Wainit because of his subsequent acts and omissions.

5.  The national police took orders only from Lt. Nakashima.

6.  Wainit, in closing argument, did not even contend that he had been able to show that the search was so provocative or force so unreasonable that he was entitled to try to assert that this exception was an available defense.

7.  Wainit would, of course, have been within his rights to tell the search party that if it insisted upon continuing its search it could do so over his protest, but that, in his view, the search warrant was invalid or expired and he would pursue every available civil remedy and suppression motion available to him so that the search party might want to reconsider whether it wanted to continue.

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