FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Menisio, 14 FSM Intrm. 316 (Chk. 2006)

[14 FSM Intrm. 316]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

SERRY MENISIO a/k/a ROBATO MENISIO,

Defendant.

CRIMINAL CASE NO. 2006-1504

ORDER DENYING MOTION TO QUASH

Dennis K. Yamase

Associate Justice

Hearing: July 20, 2006

Decided: July 31, 2006

APPEARANCES:

For the Plaintiff:   Keith J. Peterson, Esq.

                              Assistant Attorney General

                              FSM Department of Justice

                              P.O. Box PS-105

                              Palikir, Pohnpei   FM   96941

For the Defendant:  Joey J. Sapelalut, Esq.

                                  Office of the Public Defender

                                  P.O. Box PS-174

                                  Palikir, Pohnpei   FM   96941

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HEADNOTES

Search and Seizure ) Incident to an Arrest

    When the police had probable cause to arrest the defendant because he was intoxicated and in a public place, a bag seized from the defendant was therefore seized pursuant to a lawful arrest. The search of the bag was thus not unreasonable because a constitutional search may be conducted without a warrant if the search is incidental to a lawful arrest. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Search and Seizure ) Incident to an Arrest

    A police officer making an arrest has a limited right to conduct a search incident to that arrest. This

right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence. Although the right to search is of limited scope, it plainly authorizes a reasonable search of the person being arrested. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Search and Seizure ) Inventory Search

    It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Search and Seizure ) Incident to an Arrest; Search and Seizure ) Inventory Search

    Searches incidental to a lawful arrest, and inventory searches, are exceptions to the Constitutionís warrant requirement, and, as such, do not violate the Constitutionís prohibition of unreasonable searches. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Criminal Law and Procedure ) Interrogation and Confession

    When the evidence was uncontroverted that the defendant signed a Chuukese language advice of rights form showing that he had been informed of each of his rights under 12 F.S.M.C. 218, that he understood those rights, and that he waived his rights to silence, to have an attorney or someone else present on his behalf, and to have someone called for him, the statement he gave at the time the advice of rights and waiver form was executed was knowingly and intelligently and therefore voluntarily given within 24 hours of his arrest. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Criminal Law and Procedure ) Interrogation and Confession

    For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently. There exists a presumption against such waivers. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Criminal Law and Procedure ) Arrest and Custody

    In any case of arrest it is unlawful to fail either to release or charge an arrested person with a criminal offense within a reasonable time, which must under no circumstances exceed 24 hours. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

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Criminal Law and Procedure ) Arrest and Custody

    The remedy for an unlawful detention over 24 hours is not the dismissal of the information against the defendant or the suppression of all evidence and statements obtained from him. The only remedy in a criminal prosecution (as opposed to a civil suit) is suppression of any evidence obtained as a result of the illegal detention. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Criminal Law and Procedure ) Arrest and Custody

    Evidence obtained in violation of 12 F.S.M.C. 218 is rendered inadmissible by 12 F.S.M.C. 220. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006).

Criminal Law and Procedure ) Arrest and Custody

    Evidence and statements lawfully obtained from a defendant before he had been illegally detained over 24 hours will be admissible. The defendant is entitled to the suppression of any evidence or statements obtained from him after the first 24 hours of his detention. FSM v. Menisio, 14 FSM Intrm. 316, 320 (Chk. 2006).

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COURTíS OPINION

DENNIS K. YAMASE, Associate Justice:

     On July 20, 2005, the court heard the defendantís Motion to Quash the Complaint and in the Alternative to Suppress Evidence, filed June 5, 2006. The governmentís opposition was filed on July 10, 2006. The motion asks that the information be quashed on the grounds that the police violated the defendantís due process rights, his civil rights, and because the police had no probable cause to arrest him. In the alternative, the motion asks that any evidence or statements made to the police be suppressed.

I.   Background

     On April 7, 2006, the defendant, Serry a/k/a Robato Menisio, was a passenger in the back seat of a car driven by his brother. No one else was in the car. The police stopped the car at about 3:30 p.m., because it had been reported in an accident. The police arrested both Menisio and the driver because they both appeared to be intoxicated. As the police tired to remove Menisio from the carís back seat, he tried to pass a bag, or back bag, to a bystander. The police seized the bag. The two arrestees were taken to the police station and the car was impounded there. It is unclear whether the bag was first searched when seized or later at the police station. When the bag was searched, the police found what is alleged to be two bottles of homemade dynamite and some other hazardous materials.

     Menisio was questioned at about 11:00 a.m. the next morning and gave a statement. He remained in jail until April 11, 2006, when this case was filed and Menisio made his initial appearance. He was released on his own recognizance.

II.   Discussion

    Menisioís written motion raised six issues: 1) whether Menisio was arrested; 2) whether the police had probable cause to arrest Menisio; 3) whether Menisio was read his rights; 4) whether the police violated Menisioís rights by holding him for more than 24 hours; 5) whether Menisioís rights under 12 F.S.M.C. 218 were violated; and 6) whether the police violated Menisioís right to due process. Menisio contends that the answer to each of these questions is yes, and that his remedy is that the information against him should be quashed ) dismissed.

    The government and Menisio agree that he was arrested at the car. Menisio contends that the police lacked probable cause to arrest him and that therefore the bag and its contents that were seized as a result of an unlawful arrest must be suppressed because it was searched without a warrant and

[14 FSM Intrm. 319]

thus seized illegally.

     The court concludes that the police had probable cause to arrest Menisio because he was intoxicated and in a public place. The bag was therefore seized pursuant to a lawful arrest. The search of the bag was also thus not unreasonable. A constitutional search may be conducted without a warrant if the search is incidental to a lawful arrest. Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App. 1985). A police officer making an arrest has a limited right to conduct a search incident to that arrest. This right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence. Although the right to search is of limited scope, it plainly authorizes a reasonable search of the person being arrested. Id. at 34. Thus, if the search was made at the scene of the arrest, it was constitutional.

     If the bag was searched at the police station, it was a constitutional inventory search. It is not unreasonable for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999). Searches incidental to a lawful arrest, Yinmed v. Yap, 8 FSM Intrm. 95, 100-01 (Yap S. Ct. App. 1997), and inventory searches, Joseph, 9 FSM Intrm. at 72, are exceptions to the Constitutionís warrant requirement, and, as such, do not violate the Constitutionís prohibition of unreasonable searches. The seizure of the bagís contents was therefore lawful.

     Menisio further contends that he was not read his rights. Exhibit One, admitted into evidence at the July 20th hearing, was a Chuukese language advice of rights form, signed by him, showing that Menisio had been informed of each of his rights under 12 F.S.M.C. 218, that he understood those rights, and that he waived his rights to silence, to have an attorney or someone else present on his behalf, and to have someone called for him. This evidence was uncontroverted. The statement given at the time this advice of rights and waiver form was executed on April 8, 2006 at 11:00 a.m. was knowingly and intelligently and therefore voluntarily given within 24 hours of Menisioís arrest. For a defendant to waive his right to silence or to counsel he must do so knowingly and intelligently. There exists a presumption against such waivers. Moses v. FSM, 5 FSM Intrm. 156, 159 (App. 1991). The government has overcome that presumption.

     Menisio was held for another three days after the statement was voluntarily given. This detention was in violation of 12 F.S.M.C. 218(4), which provides that "[i]n any case of arrest . . . it shall be unlawful to . . . (4) fail either to release or charge such arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed 24 hours." Menisio asserts that this violation entitles him to either a dismissal of the information against him or the suppression of all evidence and statements obtained from him (which, the court notes, would also lead to a dismissal because the government would then have no evidence to support a prosecution).

     This is not the remedy for Menisioís unlawful detention over 24 hours. Menisioís only remedy in this criminal prosecution (as opposed to a civil suit) is suppression of any evidence obtained as a result of the illegal detention. Evidence obtained in violation of 12 F.S.M.C. 218 is rendered inadmissible by 12 F.S.M.C. 220. FSM v. George, 6 FSM Intrm. 626, 629 (Kos. 1994); Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994) (by statute, statements taken as a result of a violation of the defendantís statutory right to be brought before a judicial officer without unnecessary

[14 FSM Intrm. 320]

delay are inadmissible, even if voluntary).

     The evidence found while searching Menisioís bag and the statement he gave on the morning of April 8, 2006, were not obtained in violation of 12 F.S.M.C. 218 and will not be suppressed. The unlawful detention had not yet happened when the police lawfully obtained that evidence and statement. Menisio is, however, entitled to the suppression of any evidence or statements obtained from him after the first 24 hours of his detention. None has yet been identified.

III.   Conclusion

     The evidence found by searching Menisioís bag will not be suppressed since that search was not unreasonable but was a permissible warrantless search. The statement Menisio gave on the morning of April 8, 2006 will not be suppressed because it was voluntarily made after Menisio had been informed of all, and voluntarily waived some, of his rights. Any statement or evidence obtained by the police as a result of Menisioís being held over 24 hours without being released or charged is subject to suppression. The motion to dismiss the information is denied.

     The defendant, Serry a/k/a Robato Menisio, shall appear at 9:30 a.m., September 28, 2006, to tender his plea, and, if a plea of not guilty is entered, trial shall start at 10:00 a.m.

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Footnotes:

1.   The Arnish court relied on a Trust Territory statute, 12 TTC 68, which had become state law in Chuuk. 12 TTC 68 is also the source of 12 F.S.M.C. 218.

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