KOSRAE STATE COURT
TRIAL DIVISION
Cite as Kosrae v. Alanso,
3 FSM Intrm. 39 (Kos. Ct. Tr. 1985)

[3 FSM Intrm. 39]
KOSRAE STATE,
Plaintiff,

vs.

JOSEPH ALANSO,
Defendant.

CRIMINAL ACTION NO. 77-85

OPINION
 
Before Harry H. Skilling
Chief Justice
Kosrae State Court
August 22, 1985
 
APPEARANCES:
          For the Plaintiff:          Aliksa B. Aliksa
                                               State Prosecutor
                                               Office of the Attorney General
                                               Kosrae State 96944

          For the Defendant:     Patrick J. Olter
                                               Public Defender
                                               Kosrae State 96944     

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[3 FSM Intrm. 40]

HEADNOTES
Constitutional Law - Interpretation
     Article II, section 1(d) of the Kosrae State Constitution is similar to article IV, section 5 of the FSM Constitution and to the Fourth Amendment to the U.S. Constitution, and therefore, interpretations of these provisions may be useful for interpreting the provision in the Kosrae State Constitution. Kosrae v. Alanso, 3 FSM Intrm. 39, 42 (Kos. S. Ct. Tr. 1985).

Constitutional law - Interpretation
     Because the Kosrae State Constitution does not provide an exact standard for determining whether a search is "reasonable," this Court will first turn to the framers' intent.  In the absence of an official journal of the First Constitutional Convention, this Court will then look to FSM and U.S. judicial decisions interpreting the search and seizure provision in their respective constitutions. Kosrae v. Alanso, 3 FSM Intrm. 39, 42 (Kos. S. Ct. Tr. 1985).

Constitutional Law;
Criminal Law and Procedure - Search and Seizure
     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).

Constitutional Law; Criminal Law and Procedure - Search and seizure
     To determine whether a search is reasonable, the Kosrae State Court will be guided by the principle that, with the exception of a few carefully defined types of cases, any search of private property without proper consent is unreasonable, unless previously authorized by a valid search warrant. Kosrae v. Alanso, 3 FSM Intrm. 39, 43 (Kos. S. Ct. Tr. 1985).

Criminal Law and Procedure - Search and Seizure
     The Kosrae State Court, consistent with U.S. and FSM precedent, recognizes consent as a valid exception to the need, for a search warrant.  However, consent is understood to be an informed and voluntary relinquishment of a known right and the burden will be on the government to show that there was consent.  Kosrae v. Alanso, 3 FSM Intrm. 39, 43 (Kos. S. Ct. Tr. 1985).

Constitutional Law - Search and Seizure
     Few rights are more important than the freedom from unreasonable governmental intrusion into a citizen's privacy and courts must protect this right from well-intentioned, but unauthorized, governmental action.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

[3 FSM Intrm. 41]

Criminal law and Procedure - Search and Seizure
     To protect the right to be free from unreasonable search and seizure, this Court requires clear proof, not merely that consent was given, but also that a right was knowingly and voluntarily waived.  It is fundamental that a citizen be aware of the right he is giving up in order for consent to be found.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Criminal Law and Procedure - Search and Seizure
     Consent, given in the face of a police request to search without the consenting person having been informed of his right to refuse consent, and without any written evidence that consent was voluntarily and knowingly given, renders such consent inadequate to permit a warrantless search absent probable cause.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Criminal Law and Procedure - Evidence
     This Court will apply the exclusionary rule on a case-by-case basis.  The exclusionary rule has been devised as a necessary device to protect the right to be free from unreasonable search and seizure.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

Criminal Law and Procedure - Evidence
     Under the exclusionary rule, any evidence obtained through an illegal search and seizure, whether physical or verbal, is a fruit of the illegal search and seizure, is tainted by illegality, and must be excluded.  Kosrae v. Alanso, 3 FSM Intrm. 39, 44 (Kos. S. Ct. Tr. 1985).

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COURT'S OPINION
HARRY H. SKILLING, Chief Justice:

TROCCHUS CASE
Legal Analysis
     The legal issue is whether the warrantless search was reasonable.  The focus of the search and seizure issue is Article II, Section l(d) of the Constitution of the State of Kosrae:

The right of the people to be secure in their persons, houses, papers and other possessions against unreasonable search, seizure or invasion of privacy may not be violated.  A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the person or things to be seized.

     In this case, no search warrant was shown to Palikkun Wesley nor was a search warrant relied upon by the government at trial.  Instead, the government relies upon the consent of Palikkun Wesley to have his property searched.  This Court must therefore review the acts surrounding the consent

[3 FSM Intrm. 42]

in light of the constitutional principles involved.

     The constitutional provision mentioned above is similar to that found in FSM Const. art. IV, 5 and U.S. Const. amend. IV.  Cases from those jurisdictions are helpful in determining the issue presented here.

     Initially, it must be indicated that the words of article II, section 1(d) of the Kosrae State Constitution do not set forth standards other than making "unreasonable" searches unconstitutional.  Obviously, "reasonable" searches are permissible.  It is for this Court, in this case of first impression in Kosrae, to determine what is unreasonable in the context of the facts here.

     Since the Constitution does not provide the exact standards of conduct, usual judicial inquiry proceeds to the meaning attached to the phrase in question by the framers of the Constitution.  However, there is no official journal of the First Constitutional Convention, and this Court will not presume to refer to any other source.  Suffice it to say that the obvious similarities among the United States, FSM and Kosrae Constitutions regarding search and seizure clearly indicate that the framers of the Kosrae Constitution intended a similar meaning and effect as that accorded the other two constitutions.  See FSM v. Tipen, 1 FSM Intrm. 79, 84 (Pon. 1982).  It is appropriate therefore to analyze the judicial decisions in the U.S. and FSM and apply them to the issue at hand.

     A review of those decisions reveals that there is close agreement between those jurisdictions on the issue of what is an unreasonable search and seizure.

     In Tipen, the FSM Supreme Court Trial Division discusses some U.S. opinions relevant to unreasonable searches:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to  the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.  Terry, 392 U.S. at 9, 88 S. Ct. at 1873, 20 L. Ed. 2d at 898  (quoting Union Pac. Rwy. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 1001, 35 L. Ed. 734, 737 (1891))....In the United States constitutional protection of the individual against unreasonable searches, and limitation of the powers of the police, apply wherever an individual may harbor a reasonable "expectation of privacy."  Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 588 (1967) (Harlan, J., concurring).

FSM v. Tipen, 1 FSM Intrm. at 86.

[3 FSM Intrm. 43]

     This Court concludes that Joseph Alanso was entitled to the protections of Kos. Const. art. II, 1(d) at the time and place involved here.

     In determining whether the search was unreasonable this Court is guided by the principle that

except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant.
 
Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S. Ct. 1727, 1731, 18 L. Ed. 2d 930, 935 (1967).

     This Court recognizes the ample judicial precedent in the U.S. and the FSM for consent as a valid exception to the need for a search warrant.  See, e.g., FSM v. George, 1 FSM Intrm. 449 (Kos. 1984).  It is also recognized that each case of consent will be judged on its own merits in accord with the rule of law.

     The rule of law in consent cases places a heavy burden on the government to show voluntary, knowing consent:

In reviewing government assertions of private consent to a warrantless search, United States courts have been hostile to claims that constitutional rights have been waived.  This hostility has been formalized in the rules which state that the government bears the burden of proving the existence of voluntary consent and that acquiescence in the desire of law enforcement personnel to search will not be presumed but must be affirmatively demonstrated.  E.C. Cleary, McCormick on Evidence 175 (1972).  The consent must be voluntary rather than "simple submission to what is considered the authority or the power of the state to search."

FSM v. George, 1 FSM Intrm. at 456, 457 (citation omitted).

     This court is in accord with the principles mentioned above.  The burden is on the government to justify a search without a warrant based upon consent. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 20 L. Ed. 2d 564 (1971). Consent has been defined as follows:  "[C]apable, deliberate and voluntary agreement to or concurrence in some act or purpose implying physical and mental power and free will."  Webster's Third New International Dictionary (1976). "Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side.  It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice...."  Black's Law Dictionary 276 (5th ed. 1979).  Waiver is defined as "[t]he intentional or voluntary relinquishment of a known right.... In order for one to `waive' a right, he must do it knowingly and be possessed of the facts."  Id. at 1417.     

[3 FSM Intrm. 44]

     This Court holds that "consent" in the context of a search without a warrant means knowing and voluntary relinquishment of a known right.

     It is central to this Court's analysis that the concepts at issue here and embodied in the Constitution are borrowed.  They are not Kosraen.  Nor are they well established in Kosrae, the Constitution only having come into effect on January 11, 1981.

     Few rights are more important than the freedom from unreasonable governmental intrusion into a citizen's privacy.  That is why this right is so strongly guarded by the above mentioned principles of law.  This Court, mindful of these principles, must protect these rights from well-intentioned, but unauthorized, government action.

     In order to protect the right to be free from unreasonable searches, this Court requires clear proof, not merely that consent was given, but that a right was knowingly and voluntarily waived.  It is fundamental that a citizen be aware of the right he is giving up in order for consent to be found.

     The government has failed to meet its burden of proving such knowing and voluntary consent.

     This Court holds that consent, given in the face of a police request to search without the consenting person having been informed of his right to refuse consent, and without any written evidence that consent was voluntarily and knowingly given, see FSM v. Nedlic, Crim. Action No. 1984-2503 (Kos.), renders such consent inadequate to permit a warrantless search absent probable cause.  No such justification was presented by the facts here.

Exclusion of the Evidence
     The exclusionary rule is so well established in the U.S. and the FSM that little needs to be said to amplify its reasoning or application.  See, e.g., FSM v. Tipen, 1 FSM Intrm. 79 (Pon. 1982); Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 57 L. Ed. 652 (1914).

     This Court will apply the exclusionary rule on a case-by-case basis guided by the underlying principle that exclusion has been devised as a necessary device to protect the right against unreasonable search and  seizure.  This Court holds that exclusion of the physical evidence seized from Joseph Alanso is necessary to protect that right.  Further, this Court concludes that all of the evidence subsequently obtained, both physical and verbal, from Palikkun Wesley and from the defendant, are fruits of the illegal search and therefore must be excluded from evidence.  All Such evidence was obtained as a direct result of the unlawful search and is tainted thereby. See, e.g., Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963).

Conclusion
     The evidence introduced by the government was unlawfully obtained and  is therefore inadmissible.  The case is dismissed for failure of the government to carry its burden of proof.
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