9 FSM Intrm.066-073

FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Joseph, 9 FSM Intrm. 66 ( Chuuk. 1999)

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FEDERATED STATES OF MICRONESIA,

CRIMINAL CASE NO. 1998-1502

CRIMINAL CASE NO. 1998-1505

Hearing: January 22, 1999

Decided: January 25, 1999

Order Entered: March 11, 1999

For the Plaintiff: Joses Gallen, Esq.

Office of the Chuuk Attorney General

Weno, Chuuk FM 96942

For the Defendant: Johnny Meippen, Esq.

Weno, Chuuk FM 96942

When a warrantless search or seizure is conducted the burden is on the government to justify the search or seizure, but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure. FSM v. Joseph, 9 FSM Intrm. 66, 69 (Chk. 1999).

When no search or arrest warrant had been issued or sought and the defendant moves to suppress the evidence seized, although it is the defendant's suppression motion, it is the government's

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burden to prove that the searches were reasonable and therefore lawful under section 5 of article IV of the FSM Constitution. FSM v. Joseph, 9 FSM Intrm. 66, 69 (Chk. 1999).

The border search doctrine is suitable for application to fishing vessels in the FSM. The principle should be the same for aircraft. FSM v. Joseph, 9 FSM Intrm. 66, 70 n.2 (Chk. 1999).

Agriculture; Customs; Immigration; Search and Seizure

All aircraft entering FSM ports of entry are subject to immigration inspection, customs inspections, agricultural inspections and quarantines, and other administrative inspections authorized by law. In Chuuk, the Chuuk International Airport is the only port of entry for aircraft. FSM v. Joseph, 9 FSM Intrm. 66, 70 (Chk. 1999).

Agriculture; Search and Seizure

An agriculture quarantine inspector's duty is to enforce the provisions of plant and animal quarantine controls, quarantines, and regulations, the purpose of which is to protect the agricultural and general well-being of the people of the FSM from injurious insects, pests, and diseases. Goods entering or transported within the FSM can be inspected. Those goods known to be, or suspected of being, infected or infested with disease or pests may be refused entry into or movement within the FSM, and anything attempted to be brought into or transported within the FSM in contravention of the agricultural inspection scheme shall be seized and may be destroyed. FSM v. Joseph, 9 FSM Intrm. 66, 70 (Chk. 1999).

Customs; Search and Seizure

Customs officers have the right to examine all goods subject to customs control, and it is unlawful to import into the FSM any goods whose use, possession or import is prohibited or contrary to restrictions imposed by the FSM or the state into which the goods are imported. FSM v. Joseph, 9 FSM Intrm. 66, 70 (Chk. 1999).

Border searches and searches at the functional equivalent of a border are an exception to the warrant requirement of section 5 of the FSM Declaration of Rights.FSM v. Joseph, 9 FSM Intrm. 66, 70 (Chk. 1999).

Passing through security screening and boarding a foreign-registered airplane in Pohnpei that has arrived from a foreign country without it and its cargo having cleared customs in the FSM and whose passengers have not cleared immigration in the FSM, unless they deplaned, is passing out of and across a functional border of the FSM. The same passenger landing in Chuuk and entering the customs inspection area is crossing a functional equivalent of a border back into the FSM.FSM v. Joseph, 9 FSM Intrm. 66, 70-71 (Chk. 1999).

Because entering the Chuuk International Airport customs inspection area after deplaning from a through flight is crossing the functional equivalent of a border a warrantless search there is reasonable under section 5 of the FSM Declaration of Rights. This analysis is consistent with the geographical configuration of Micronesia, with the statutory schemes of agricultural inspection, and customs inspection. FSM v. Joseph, 9 FSM Intrm. 66, 71 (Chk. 1999).

An airport inspection of arriving passengers and their luggage does not violate an FSM citizen's

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right to travel within the FSM and the right to privacy. FSM v. Joseph, 9 FSM Intrm. 66, 71 (Chk. 1999).

A search and seizure at the police station of an arrestee's possessions is not the unlawful fruit of the poisonous tree when the arrest was lawful. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).

Constitutional Law ) Declaration of Rights; Constitutional Law ) Interpretation

Because the Declaration of Rights is to a substantial degree patterned after provisions of the U.S. Constitution, and U.S. cases were relied on to guide the constitutional convention, U.S. authority may be consulted to understand its meaning. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).

Search and Seizure ) Inventory Search; Search and Seizure ) Probable Cause

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).

Search and Seizure ) Inventory Search

A standardized procedure for inventorying an arrestee's possessions at the stationhouse is an entirely reasonable administrative procedure that not only deters an arrestee's false claims of missing or damaged property but also inhibits theft or careless handling of the arrestee's property and protects people from any dangerous instrumentalities that may be found. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).

Search and Seizure ) Inventory Search

An inventory search is reasonable when police follow standardized procedures and are not acting in bad faith or for the sole purpose of investigation. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).

Search and Seizure ) Inventory Search

Standardized or established routine must govern inventory searches because an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).

Search and Seizure ) Inventory Search

Because the police also looked for contraband while doing an inventory that does not mean that the search was done in bad faith or for the sole purpose of investigation. FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).

RICHARD H. BENSON, Associate Justice:

On January 22, 1999 the defendant's motion to suppress evidence came on for hearing. On January 25, 1999, I denied that motion and gave my reasons from the bench. The purpose of this written order is to enter my earlier oral order and to memorialize my reasons.

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At about 3:30 p.m., on October 20, 1998, Danny Sancher, Chief of Police of the Chuuk State Police, received a phone call from Tarios Ludwig, a national police officer from Chuuk stationed at Palikir, Pohnpei, and whose voice he recognized. Officer Ludwig, personally known to Chief Sancher, informed the Chief that Alfred Joseph was on that afternoon's flight from Pohnpei to Chuuk and that Ludwig believed Joseph was carrying marijuana and that the plane was on its way. The Chief was personally familiar with Alfred Joseph because Joseph was a Chuuk State Police sergeant. Chief Sancher organized a small unit of Chuuk State Police officers and proceeded to the airport where he conferred with the airline station manager and the customs and quarantine officers. He arranged a signal with the customs and quarantine officers that if they found any marijuana while inspecting Joseph's luggage on his arrival in Chuuk that they would scratch the back of their heads.

Flight 957, which had originated at Honolulu, U.S.A., arrived at about 5:00 p.m. Joseph deplaned at Chuuk. He had an ice chest, a cardboard box and a small black suitcase which he brought to the customs and quarantine inspection counter in the customs inspection area of Chuuk International Airport. There was testimony that he was one of the last to present his luggage for customs inspection. There was also testimony that he appeared nervous, and that he addressed the quarantine inspector, Simon Refit, who knew him personally, not by his name, but by a relative's name, Silas. Joseph presented a customs declaration form which declared that he was not carrying any food items (or plant materials or controlled substances). His response to Quarantine Officer Refit's question about the ice chest's contents was that it contained bread. Refit then inspected Joseph's ice chest and Customs Officer Ermes Sion inspected Joseph's other luggage. In the ice chest, Refit found six bags of what appeared to be marijuana under some bags of bread. Sion, standing next to Refit also saw the marijuana. Refit made the signal, and Chief Sancher, who had been standing in the customs inspection area a short distance away, approached and placed Joseph under arrest. Joseph was taken to jail.

Joseph's luggage, including the ice chest, was then taken to a separate room in the customs inspection area where a further search by customs inspectors, with police present, did not turn up any more contraband. Joseph's luggage was then turned over to the police, who took it to the police station. At the station, another search was made of Joseph's luggage. A small yellow plastic bag found in the small black suitcase was opened and searched. It contained, wrapped in some white substance, 21 marijuana cigarettes.

II. Motion to Suppress

Joseph moved to suppress the six bags of marijuana found in the ice chest at the airport and the 21 marijuana cigarettes found in the search at the police station.1 When a warrantless search or seizure is conducted the burden is on the government to justify the search or seizure, but when the search or seizure is conducted pursuant to a judicially-issued warrant the burden rests with the defendant to prove the illegality of the search or seizure. FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998). No search or arrest warrant had been issued or sought. Therefore, although it was the defendant's suppression motion, it was the government's burden to prove that the searches were reasonable and therefore lawful under section 5 of article IV of the FSM Constitution.

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A. Search and Seizure at the Chuuk International Airport

The government contended that the search at the Chuuk International Airport was reasonable and authorized under FSM customs and plant and animal quarantine control laws. Joseph conceded that border searches2 and searches at the functional equivalent of a border are exceptions to the warrant requirement and are reasonable searches under the FSM Constitution. But Joseph contended that, at least for a passenger flying from Pohnpei to Chuuk, Chuuk International Airport is not the functional equivalent of a border because the passenger's travel was wholly within the FSM. Joseph also contends that the search violated an FSM citizen's right to travel within the FSM, FSM Const. art. IV, § 12, and his right to privacy, FSM Const. art. IV, § 5.

The underlying issue in this case is the quarantine and customs officers' right to search baggage and other personal property of a person entering Chuuk. All aircraft entering FSM ports of entry are "subject to immigration inspection, customs inspections, agricultural inspections and quarantines, and other administrative inspections authorized by law." 18 F.S.M.C. 206. In Chuuk, the Chuuk International Airport is the only port of entry for aircraft. 18 F.S.M.C. 202(2)(b). An agriculture quarantine inspector's duty is to "enforce the provisions of plant and animal quarantine controls, quarantines, and regulations," 22 F.S.M.C. 406, the purpose of which is "to protect the agricultural and general well-being" of the people of the FSM from "injurious insects, pests, and diseases," 22 F.S.M.C. 401. These inspections or enforcement can take place for goods "entering or transported within" the FSM. 22 F.S.M.C. 410(1). Those goods known to be, or suspected of being, infected or infested with disease or pests "may be refused entry into or movement within" the FSM. Id. And "[a]nything attempted to be brought into or transported within the" FSM in contravention of the agricultural inspection scheme shall be seized and may be destroyed. 22 F.S.M.C. 413. That the customs officers and the agricultural quarantine inspectors were duly appointed and performing their obligations has not been challenged. The Customs Act of 1996 gives customs officers the right to examine all goods subject to customs control. Pub. L. No. 9-139, § 21 (9th Cong., 4th Spec. Sess. 1996) (to be codified at 54 F.S.M.C. 235). Furthermore, it is unlawful "to import into the FSM any goods whose use, possession or import is prohibited or contrary to restrictions imposed by the FSM or the State into which the goods are imported . . . ." Id. § 25 (to be codified at 54 F.S.M.C. 240). In order to grant Joseph's suppression motion I would have to rule all these statutes unconstitutional, at least insofar as they apply to persons traveling within the FSM. I decline to do so.

Joseph acknowledges that border searches and searches at the functional equivalent of a border are an exception to the warrant requirement of section 5 of the FSM Declaration of Rights. Cf. Almeida-Sanchez v. United States, 413 U.S. 266, 272, 93 S. Ct. 2535, 2539, 37 L. Ed. 2d 596, 602 (1973) ("a routine border search . . . may . . . take place not only at the border itself, but at its functional equivalents as well"). Flight 957, flown by an American-registered aircraft, originated at Honolulu in the United States, a foreign country. It then flew to Johnston Atoll, an American territory, and made two stops in the Republic of the Marshall Islands, another foreign country. It first arrived in the FSM at Kosrae before proceeding to Pohnpei. At none of those stops, and more importantly, at none of the stops in the FSM, did the plane, its cargo, its crew and passengers and their luggage ever clear immigration and customs. Only those passengers who deplaned cleared immigration, and only their luggage and the cargo that was off-loaded cleared customs. Those passengers and crew, their luggage, and cargo remaining on the airplane never crossed the functional customs border of the FSM. In essence, the airplane remained foreign territory. So when Joseph passed through security screening

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at Pohnpei International Airport and boarded flight 957 he passed out and across a functional border of the FSM. When he landed in Chuuk and entered the customs inspection area he was crossing a functional equivalent of a border back into the FSM.

Because Joseph was crossing the functional equivalent of a border the warrantless search at the Chuuk International Airport customs inspection area was reasonable under section 5 of the FSM Declaration of Rights. It is unthinkable that a person who, boarding a plane at Pohnpei, mingles with the plane's passengers and crew, none of whom has cleared customs and immigration in the FSM and none of whose carry-on luggage has either, unless they had deplaned in the FSM, could then deplane at Chuuk and be exempt from all inspection controls. If such a passenger were exempt from inspection, nothing would prevent him from receiving from other passengers who had not cleared FSM customs, carry-on items, or possibly even checked luggage by means of exchanging baggage claim stubs, from outside the FSM that should be inspected upon entry, but that would not be. Such an unworkable exemption would allow contraband to be smuggled in and FSM customs duties to be evaded. I thus concluded that the search was reasonable because it was done at the functional equivalent of a border. This analysis is consistent with "the geographical configuration of Micronesia," FSM Const. art. XI, § 11, and with the statutory schemes of agricultural inspection, 22 F.S.M.C. 412 (any quarantinable material in transit through the FSM to be kept on board vessel or aircraft), and customs inspection, Pub. L. No. 9-139, § 24 (9th Cong., 4th Spec. Sess. 1996) (to be codified at 54 F.S.M.C. 238(6)(b)) (goods whose destination is outside the FSM, including ship's and aircraft stores, not deemed imported unless removed in FSM from vessel or aircraft they arrive in).

In support of his contention that the airport search was unlawful, Joseph cited United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973). But that case is quite different from this one. In Lonabaugh, baggage was checked in Brownsville, Texas for a flight to Houston, Texas. Pursuant to a tip, the suitcases were removed from the baggage cart at Brownsville by U.S. Customs agents and searched. Id. at 1259. They found marijuana. Id. The appellate court found the warrantless search unlawful.Id. at 1262. The government's brief had contended that the search was justified as a border search. Id. at 1260. The Brownsville airport was two miles from the Mexican border. The court concluded that that did not make the search the functional equivalent of a search at the border, especially when there was no reasonable suspicion that the thing to be searched had itself just crossed the border. Id. at 1261. In the present case, Joseph flew from Pohnpei to Chuuk and twice crossed the functional equivalent of a border. In Lonabaugh, the luggage was searched at the airport it was checked in, and there was no evidence that the luggage had ever crossed a border, or its functional equivalent or was about to. The two cases are not similar.

Joseph also raises, in passing and without further argument, the issue of two other constitutional provisions. Joseph just noted those two provisions. He did not argue at all how the airport inspections violate an FSM citizen's right to travel within the FSM, FSM Const. art. IV, § 12. Nor did he argue how the right to privacy, FSM Const. art. IV, § 5, was violated (other than it was an unreasonable search and seizure as just discussed). These provisions do not alter my view of the case because of the legitimate public health and safety concerns that the statutes are designed to protect.

I therefore, for all the reasons given above, concluded that the airport customs area search was reasonable because it was done at the functional equivalent of a border and that therefore the seizure of the marijuana and Joseph's ensuing arrest were lawful.

B. Search and Seizure at the Chuuk Police Station

The government contended that the search done at the police station was reasonable because it was an inventory of an arrestee's possessions, done pursuant to regulations. Joseph contended that

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the search was the fruit of the poisonous tree ) would not have done if it were not for the illegal search and arrest at the airport ) and that it was done in bad faith, because the police said that they were looking for contraband while doing the inventory, and thus it was not a regularly conducted inventory.

Police Officer Imao Matthew testified that once Joseph's luggage was taken to the station it was inventoried. He testified that the inventory was done pursuant to regulations and that it must be done so that none of the arrestee's property is lost. Officer Matthew also testified that it was normal to look for contraband while taking inventory. Relying on this testimony, Joseph contended that because the police were looking for contraband during the inventory that the inventory was done in bad faith and therefore the search was unreasonable.

Because I determined that the search and arrest at the Chuuk International Airport were lawful, I had to reject Joseph's contention that the police station search and seizure was the fruit of the poisonous tree. That brings us to the question of whether the inventory search was reasonable. The lawfulness of a seizure made during an inventory search has not been previously determined in any of our reported cases. Because the Declaration of Rights is to a substantial degree patterned after provisions of the U.S. Constitution, and U.S. cases were relied on to guide the constitutional convention, U.S. authority may be consulted to understand its meaning. Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986); Tosie v. Tosie, 1 FSM Intrm. 149, 154 (Kos. 1982).

In interpreting a similar provision in the U.S. Bill of Rights, the United States Supreme Court held that "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."Illinois v. Lafayette, 462 U.S. 640, 648, 103 S. Ct. 2605, 2610, 77 L. Ed. 2d 65, 73 (1983) (upholding stationhouse inventory search of arrestee's shoulder bag). "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." Id. at 643, 103 S. Ct. at 2608, 77 L. Ed. 2d at 69. A standardized procedure for inventorying an arrestee's possessions at the stationhouse is an entirely reasonable administrative procedure that not only deters an arrestee's false claims of missing or damaged property but also inhibits theft or careless handling of the arrestee's property and protects people from any dangerous instrumentalities that may be found. Id. at 646, 103 S. Ct. at 2609, 77 L. Ed. 2d at 71. The court later upheld an inventory search of a closed backpack in an impounded van when "there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation," Colorado v. Bertine, 479 U.S. 367, 372, 107 S. Ct. 738, 741, 93 L. Ed. 2d 739, 746 (1987), but the court affirmed the suppression of evidence resulting from a search of a locked suitcase found in the trunk of an impounded car when there was "no [standardized procedure] or policy whatever with respect to the opening of closed containers encountered during an inventory search," and that therefore the search was unreasonable, Florida v. Wells, 495 U.S. 1, 4-5, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d 1, 7 (1990). Standardized or established routine must govern inventory searches because "an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory." Id. at 4, 110 S. Ct. at 1635, 109 L. Ed. 2d at 6.

I find these cases instructive and the reasoning persuasive. In this case, there was evidence that the search was done pursuant to a standardized policy and for a legitimate administrative purpose ) to protect the arrestee's property from loss. I do not conclude that because the police also looked for contraband while doing an inventory that the search was done in bad faith or for the sole purpose of investigation. I therefore concluded that the inventory search of Joseph's carry-on luggage at the police station after he had been arrested and taken to jail was reasonable and the seizure of the

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21 joints was lawful.

The warrantless seizure at the Chuuk International Airport of the six bags of marijuana found in Joseph's ice chest was reasonable under section 5 of the Declaration of Rights and therefore lawful. Because the airport seizure was lawful, Joseph's warrantless arrest at the airport was lawful. The warrantless seizure of the 21 joints at the police station was also reasonable and lawful. Accordingly, the motion to suppress was denied. Joseph then entered his plea of not guilty on all counts and trial commenced January 27, 1999.

1. It was stipulated that the six bags seized from Joseph's ice chest contained six and a quarter pounds of compressed marijuana and that there was a positive test analysis to that effect, and that the 21 joints seized from Joseph's small bag were also marijuana.

2. This court has previously recognized the border search doctrine as suitable for application to fishing vessels in the FSM. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 & n.6 (Pon. 1985). The principle should be the same for aircraft.