Cite as The State of Yap v. Maw, (Yap, 1994)
[page 1]



Case No. CR 1994-116

     Defendant, Alexander Maw, having listened to the State's Crime Stoppers advertisement on the radio went to Officer Pong, knowing he was a police officer by defendant's own admission, and discussed Gurwan. Defendant believed that officer Pong could not tell anyone else about the conversation based on the promise of confidentiality. Officer Pong then radioed another officer, who came to defendant's house about thirty minutes later, searched the premises without a warrant and found Gurwan's body.

     The issues present in pre-trial motion are as follows:

     1)  Are the police barred by contract principles from using the identity and statements of the accused in criminal proceedings made by the accused when his reasons for talking include the confidentiality promised in the States Crime Stoppers advertisement?

     2)  Does 12 F.S.M.C 218 control in Yap State?

     3)  Are there reasonable expectations of privacy in one's property surrounding the home, the curtilage, in Yap State whereby a valid warrant must issue before a search takes place? If so, was there a valid exception in the instant case?

[page 2]

I.  Crime Stoppers
    We need not consider the merits of defendant's newly fashioned 'Crime Stopper defense', although innovative, as this is a criminal action and defendant's arguments are far reaching.

     Firstly, the defense should separate crimes and contracts.  Although this Court is able to create a hypothetical scenario where a contract breach would also be a criminal violation, we cannot do so in the instant case. Defendant assumes that had the government breached a contract, then they had failed to observe the law scrupulously (Defense reply to prosecution's response at p. 4 citing Olmstead.) and thus have become a 'law breaker' (Id.). This is far from true and is the reason the law distinguishes between civil and criminal actions.

     Further, defendant argues that the proper remedy is suppression of the evidence, not money. The defendant states that "money damages are worthless here. They constitute no remedy at all." (Id. at p. 5). This is so far contrary to the law of contracts it warrants no further discussion, unless one were to wrongly assume that government breach is different from any other breach and immediately rises to the level of a violation of due process. We agree with the government that assuming there was a contract, it should be handled in a civil action.

     Finally, it must be noted that if the government can bring independent sources of other confessions regarding the same act, the failure to exclude defendant's confession to the police, assuming its invalidity, might be harmless error.

[page 3]

II.  12 FSMC 218
     Although the defendant presents a thorough discussion in arguing the application of 12 F.S.M.C. 218 to State Court proceedings, regrettably his work is for naught. We agree with defendant that the FSM code provisions are an example of procedures that would satisfy the due process requirements of the FSM and Yap State. It is not the only example, however.

     The State of Yap has adequately been advertising suspects of their rights under the constitution of both the State of Yap and the FSM. The advise of rights here is very similar, if not exact, to the Miranda requirements of the U.S. The court would only add a suggested fifth requirement, for the sake of clarity in individual cases for the future, that the police notify and make sure that the suspect understands that his request for counsel means questioning must stop immediately, and may not resume until counsel is present.

III.  Privacy in the Curtilage
     As prior case in our own Court, specifically  The State of Yap v. Yinmed, have determined that there are privacy interests in the home, basket, taang, and koyang, we now hold that there are privacy interests in personal land surrounding the home, the curtilage. Thus, the constitution of the State of Yap and the FSM require a valid warrant before the government may enter and search a defendant's premises just as they would be required to search the home itself.

[page 3]

     This, of course, does not rule out the possibility that some searches of a defendant's home and curtilage may be proper without a warrant. Defendant's consent to the search and plain view would be two examples in the FSM dispensing with the warrant requirement. Another would be under the exigent circumstances exception. We hold today that if there is reasonable grounds to believe that the health or safety of a person is in jeopardy, or death imminent, such an emergency dispenses with the requirement of first obtaining a warrant.

     The facts of each case must be examined to determine whether the police acted as though they believed such an emergency existed. In the instant case we find that the police actions were reasonable under the circumstances to justify the lack of a warrant. The defendant stresses that it took the police 30 minutes to arrive for the search and that the officer present could have searched had he genuinely feared the victim's life was in danger. We do not agree.

     Firstly, taking thirty minutes to travel from the Police Station to the northern areas of Maap is not unreasonable. Secondly, the officer present may not have been able to search for the victim given the fact that defendant was present and his flight may have been feared if a search was undertaken. At any rate, the defendant alleged a constitutional violation by the absence of a warrant and the government sufficiently rebutted with the existence of an emergency.

IV.  Form of Motions
     Since both motions seem to have some underlying, remarks

[page 4]

going on the Court would like to take this opportunity to make a few statements about the language and form that the motions of both parties have been submitting. The State Court is not the forum for petty bickering and personal attacks. If such is the case in the future this Court has the option to refuse to entertain the motions and/or responses. The other option available is to have the party support any assertions of misconduct, the inability to do so held as professional misconduct. Further, any petty personal attacks designed to simply annoy will not be tolerated and sanctions may be had.


Dated: Nov/7/94

                         Samuel Falanruw
                         Chief Justice

Filed: 11/7/94

                         Clerk of Courts
}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}6}/~]^4՟.ZV6(A  ́[J x/`&Fd4[+Ih^Son*q]4oZ/xHEwӧ6fOK 6