Chuuk v Sipenuk [2007] FMCSC 38; 15 FSM Intrm. 262 (Chk. S. Ct. Tr. 2007) (10 September 2007)

CHUUK STATE SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 034-2007

CHUUK STATE
Plaintiff,

vs.

ROMIO SIPENUK,
Defendant.
___________________________

ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS AND TO DISMISS

Midasy O. Aisek
Associate Justice

Hearing: July 4, 2007
Decided: September 10, 2007

APPEARANCES:

For the Plaintiff: Ken Uehara
Assistant Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant: Fredrick A. Hartman
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

* * * *

HEADNOTES

Criminal Law and Procedure  Motions

The moving and non-moving parties must conform to the same standard with respect to the content of a memorandum of points and authorities and must set forth the law upon which the party relies and his theory as to the application of that law to the facts of the case. No bright-line test is appropriate for determining what is a sufficient memorandum of points and authorities and a court necessarily assesses a memorandum's sufficiency on the facts and law of a given motion. Chuuk v. Sipenuk, [2007] FMCSC 38; 15 FSM Intrm. 262, 264 n.1 (Chk. S. Ct. Tr. 2007).

Bail; Criminal Law and Procedure  Arrest and Custody

The government must make a probable cause showing at a hearing before pretrial restraints on the defendant's liberty can be granted. This is because a fair and reliable determination of probable cause is a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest. Affidavits can be used, if properly introduced, as evidence at that hearing to make the probable cause showing. The finding of probable cause may be based on hearsay evidence. Chuuk v. Sipenuk, [2007] FMCSC 38; 15 FSM Intrm. 262, 264-65 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure  Arrest and Custody; Criminal Law and Procedure  Dismissal; Criminal Law and Procedure  Interrogation and Confession

When a defendant fails to address the particular circumstances of his warrantless arrest or the bearing on the probable cause showing, if any, of the witness testimony contained in the police report referred to in the affidavit supporting the criminal information, the court can discern no legal basis for dismissing the case and even assuming the defendant's arrest was illegal, he is not entitled to dismissal of the information. The remedy for an illegal arrest is suppression of any statements made by the defendant. Chuuk v. Sipenuk, [2007] FMCSC 38; 15 FSM Intrm. 262, 265 & n.2 (Chk. S. Ct. Tr. 2007).

Criminal Law and Procedure  Interrogation and Confession

When a defendant did not make any statements to the police, there are no statements to suppress. Chuuk v. Sipenuk, [2007] FMCSC 38; 15 FSM Intrm. 262, 265 (Chk. S. Ct. Tr. 2007).

Search and Seizure  Incident to an Arrest; Search and Seizure  Plain View

Generally, a constitutional search may be conducted without a warrant if the search is incidental to a lawful 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. With respect to dwellings, an officer may conduct a warrantless search with validly obtained consent and, if evidence is discovered, the officer may seize it pursuant to the plain view doctrine. Chuuk v. Sipenuk, [2007] FMCSC 38; 15 FSM Intrm. 262, 265-66 n.3 (Chk. S. Ct. Tr. 2007).

* * * *

COURT'S OPINION

MIDASY O. AISEK, Associate Justice:

On July 4, 2007, the court heard oral argument from both counsel on Defendant's Motion to Suppress Evidence, Statements and Dismiss the Case. The court denied the motion.

Defendant's Arrest

1. On February 13, 2007, Defendant Romio Sipenuk was arrested at his residence after police responded to reports of a shooting incident involving a Philippine slingshot.
   
2. On February 15, 2007, the Government filed its criminal information against Sipenuk, supported by an affidavit submitted by Detective Kulian William on the same day, charging Defendant with two counts of aggravated assault and one count of assault with a dangerous weapon against Pipiri Hauk, arising from the shooting incident of February 13, 2007. The affidavit in support of the criminal information referenced a police report prepared on February 13, 2005 containing a description of the police response and witness accounts of the incident.
   
3. On February 16, 2007, the court entered an order releasing Sipenuk from custody.
   
4. On May 9, Defendant filed a motion for discovery and, on May 15, 2007, the Government filed its responses to the motion.
   
5. In its discovery responses, the Government admitted, among other things, that it obtained no statements made by Defendant, para. 1, and that Defendant's arrest was made without a warrant, para. 3. The Government further admitted that it obtained a dart, which was allegedly used by the Defendant in the commission of the charged offenses.
   
6. On May 17, 2007, Defendant filed his motion to suppress evidence, statements and dismiss the case.
   
7. On May 28, 2007, the Government filed its motion to enlarge time to respond to Defendant's motion to suppress evidence, statements and dismiss the case.
   
8. On June 4, 2007, the Government filed its opposition to Defendant's motion to suppress evidence, statements and dismiss the case.
   

Defendant's Motion to Suppress Evidence, Statements and Dismiss the Case

The apparent basis for Defendant's shotgun motion is that Defendant was arrested without a warrant and a criminal information was issued against him unsupported by probable cause.[1] Def.'s Motion, para. 3. In support, Defendant cites FSM v. Santa, 8 FSM 266, 269 (Chk. 1998) for the proposition that a penal summons may not issue except on probable cause supported by an affidavit describing the place to be searched and the person or thing to be seized. Defendant asserts that in this case the affidavit in support of the criminal information was insufficient because it lacked the name of an informant, the time and place of any informant's observations, the credibility of the informant, and how the informant was able to make any observations. Def.'s Motion, para. 4. Defendant concludes that the information should be dismissed due to the Government's failure to establish probable cause for Defendant's arrest.

Defendant further asserts that Defendant's statements, in any case, should be excluded from the evidence because he was not read his Miranda Rights, id. para. 5, and that all evidence seized from Defendant or taken from Defendant's dwelling should be suppressed because there was no warrant for Defendant's arrest and he was not read his Miranda Rights. Id. para. 6.

Legal Analysis

A. Dismissal of Case

Defendant asserts that his arrest and the criminal information against him are unsupported by probable cause. The government is required to make a probable cause showing at a hearing before pretrial restraints on the defendant's liberty can be granted. This is because a fair and reliable determination of probable cause is a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest. Affidavits can be used, if properly introduced, as evidence at that hearing to make the probable cause showing. FSM v. Wainit, [2002] FMSC 14; 10 FSM Intrm. 618, 622 (Chk. 2002). The finding of probable cause may be based on hearsay evidence. Chk. Crim. R. 4(b).

Defendant contends that the Government's probable cause showing was deficient under the holding in FSM v. Santa, [1998] FMSC 8; 8 FSM Intrm. 266 (Chk. 1998). In FSM v. Santa, a motion to suppress was denied because the arrest warrant at issue was based on probable cause, "supported by affidavit particularly describing the place to be searched and the persons or things to be seized." (quoting FSM Const. art. IV. § 5). The courtd that there were was not only an affidavit of a police officer but testimony before a judicial officer in support of the issuance of the arrest warrant.

This case, unlike Santa, involves a warrantless arrest. As stated in the Government's opposition brief, Defendant's warrantless arrest was made on February 13, 2005 after police responded to a complaint of a shooting. The affidavit presented in support of the criminal information filed against Defendant on February 15, 2007 incorporates the police report that particularly sets forth witness testimony of the incident.

In his motion as it is presented, Defendant fails to address the particular circumstances of Defendant's warrantless arrest or the bearing on the probable cause showing, if any, of the witness testimony contained in the police report referenced in the affidavit supporting the criminal information. The court, therefore, discerns no legal basis at this time for dismissing the case based on the Government's failure to establish probable cause for Defendant's arrest.[2]

B. Defendant's Statements

Defendant further argues that Defendant's statements to the police are "fruits of the poisonous tree" as they were made when he had not been given his Miranda Rights. As asserted in its opposition brief, the Government is not aware of any statements by Defendant. When Defendant did not make any statements to the police, there are no statements to suppress. Kosrae v. Anton, [2003] FMKSC 19; 12 FSM Intrm. 217, 219-20 (Kos. S. Ct. Tr. 2003). Therefore, as submitted by the Government, the court is unable to discern any reason, other than delay, for Defendant's request to suppress statements.

C. Suppression of Evidence

Defendant also asserts that "any and all evidence" seized from Defendant or taken from his dwelling should be suppressed because there was no warrant for a search and Defendant was not read his Miranda Rights. Defendant neither cites any authority for the proposition that "any and all" evidence should be suppressed if it is seized during the course of a warrantless arrest or when there is a failure to give Miranda Rights, nor does he identify any particular evidence that should be suppressed. The court declines to invent an argument in support of Defendant's blanket contentions.[3]

Under the circumstances articulated in support of Defendant's motion, the court finds no basis for suppressing the Government's evidence.

Conclusion

Therefore, Defendant's motion was denied in its entirety.

* * * *

---

^[1]The Government argues in its opposition brief that Defendant’s motion should be dismissed for failure to provide a memorandum of points and authorities. The moving and non-moving parties must conform to the same standard with respect to the content of the memorandum of points and authorities and must set forth the law upon which the party relies and his theory as to the application of that law to the facts of the case. Enlet v. Truk, [1988] FMSC 5; 3 FSM Intrm. 459, 462 (Truk 1988); Island Cable TV v. Gilmete, [1999] FMSC 16; 9 FSM Intrm. 264, 266 (Pon. 1999). No bright-line test is appropriate for determining what is a sufficient memorandum of points and authorities and a court necessarily assesses a memorandum’s sufficiency on the facts and law of a given motion. Island Cable TV, 9 FSM Intrm. at 266. In this instance where some pertinent facts and legal authority are recited in Defendant’s motion, the court addresses the motion to the extent it is supported by an application of law to the facts of the case.
^[2]Even assuming Defendant’s arrest was illegal, he is not entitled to dismissal of the information. The remedy for an illegal arrest is suppression of any statements made by the defendant. Kosrae v. Anton, [2003] FMKSC 19; 12 FSM Intrm. 217, 219-20 (Kos. S. Ct. Tr. 2003).
^[3]If there are legitimate issues regarding seizure of evidence during the course of Defendant’s warrantless arrest, neither party addresses them. Generally, 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). 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. Ludwig, 2 FSM Intrm. at 34. With respect to dwellings, an officer may conduct a warrantless search with validly obtained consent and, if evidence is discovered, the officer may seize it pursuant to the plain view doctrine. Schneckloth v. Bustamonte, [1973] USSC 118; 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Consent by a co-occupant of a residence is valid consent to a warrantless search. United States v. Matlock, [1974] USSC 31; 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (a warrantless search based on consent from one with common authority over the property searched is valid).