Chuuk v Alluki [2011] FMCSC 2; 17 FSM Intrm. 385 (Chk. S. Ct. Tr. 2011) (27 February 2011)

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For the Plaintiff:	Charleston Bravo Assistant Attorney General Office of the Chuuk Attorney General P.O. Box 1050 Weno, Chuuk FM 96942
For the Defendant:	Kent Cheipot Office of the Public Defender P.O. Box 754 Weno, Chuuk FM 96942

Criminal Law and Procedure
An attorney practicing before the court is expected to know the rules and abide by them. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 387 (Chk. S. Ct. Tr. 2011).

Criminal Law and Procedure - Arrest and Custody
Under Chuuk Criminal Procedure Rule 4(a), if it appears from the complaint, or from affidavit or affidavit filed with the complaint, that there is probable cause to believe that an offense has been committed and that the accused has committed it, a warrant for the accused's arrest shall issue to any officer authorized by law to execute it or, upon the government attorney's request, a summons instead of a warrant will issue. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 387-88 (Chk. S. Ct. Tr. 2011).

Search and Seizure - Probable Cause
A finding of probable cause may be based upon hearsay since the general rule is that virtually any evidence may be considered. A police officer may consider any evidence in determining whether reasonable suspicion or probable cause exists. The information may be provided by an informer. Police should consider the underlying circumstances from which the informer drew his conclusion and some of the underlying circumstances must show that the informant was reliable. However, evidence to establish reasonable suspicion or probable cause may be based entirely upon hearsay. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 388 (Chk. S. Ct. Tr. 2011).

Search and Seizure - Probable Cause
Probable cause exists when there is evidence and information sufficiently persuasive such that a cautious person would believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 388 (Chk. S. Ct. Tr. 2011).

Criminal Law and Procedure - Information; Search and Seizure - Probable Cause
When the affidavit in support of the information is simply too vague, it does not contain any evidence or factual information that might lead a cautious person to believe it likely that defendant committed a crime prior to being arrested and searched. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 388 (Chk. S. Ct. Tr. 2011).

Criminal Law and Procedure - Arrest and Custody; Search and Seizure - Probable Cause
When the nature of the complaint that law enforcement received and responded to is unspecified either by hearsay or any other kind of evidence; when the accused is said to have been arrested and brought to DPS for processing as a result of police action triggered by the complaint but that arrest's details and circumstances are also unsubstantiated; and when the affidavit reads as a cursory afterthought to the arrest, incarceration, search, and ultimate seizure perpetrated by law enforcement on the accused, it could not, in and of itself, have supported a finding of probable cause prior to the arrest. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 388 (Chk. S. Ct. Tr. 2011).

Criminal Law and Procedure - Information
An affidavit's failure to establish probable cause does not affect the information's charging or notice-providing component. An information's fundamental purpose is to inform the defendant of the charges so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction. An information deficient in these respects may be dismissed without prejudice. The test for a particular information's sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated therein. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 388 (Chk. S. Ct. Tr. 2011).
Criminal Law and Procedure - Information; Search and Seizure - Probable Cause
When a factually-sufficient information is unsupported by an affidavit showing probable cause but at the motion hearing the State, although neither was the affiant, elicited testimony from an officer involved in the actual arrest and another involved in defendant's search and booking and the arresting officer provided sufficient detail to remedy the affidavit's defects; when the accused was given the opportunity, and in fact did, cross-examine both witnesses; when the court finds their testimony credible and is satisfied that ample probable cause existed for accused's arrest; and when there is nothing before the court to indicate that the accused would in any way be prejudiced if the sworn testimony elicited at the hearing were admitted for the purposes of demonstrating that law enforcement had probable cause to arrest and subsequently search the accused incident to his arrest, at the time he was arrested, the information's charging portion remains unaffected and the accused's motion to suppress will be denied. Chuuk v. Alluki, [2011] FMCSC 2; 17 FSM Intrm. 385, 388 (Chk. S. Ct. Tr. 2011).

Defendant filed a motion to suppress on March 3, 2010 and the State filed its response on March 25, 2010. Oral arguments were heard on February 11, 2011 by trial counselor Ken Cheipot representing defendant Kamu Alluki and trial counselor Charleston Bravo on behalf of the State.

Defendant cites Rule 16, Chuuk Rules of Criminal Procedure as the basis of his motion. Rule 16 pertains to discovery. But defendant's motion is to suppress evidence. An attorney practicing before the court is expected to know the rules and abide by them. Chuuk v. Davis, [2005] FMSC 22; 13 FSM Intrm. 178, 183 (App. 2005). Counsel for defendant is hereby put on notice that any future motions misstating or misapplying the rule supporting the basis of the motion may be summarily dismissed as defective. Defendant argues that he was arrested and incarcerated without probable cause and without being notified of probable cause, and that as a result, the search incident to his arrest, which led to the discovery of a slingshot, contrary to Chuuk State Law No. 9-08-12, § 4, as amended by Chuuk State Law No. 10-09-04, was unlawful and in violation of his rights under Article IV, Sections 3, 4, and 5 of the FSM Constitution.

The State counters that paragraphs 5 and 6 of the affidavit in support of its information filed December 29, 2009 sufficiently state the probable cause required. Paragraphs 5 and 6 of the affidavit state as follows:

5) That on December 27, 2009 at around 9:50 p.m., DPS received and responded to a complaint. Acting on the complaint, defendant was arrested and brought to the DPS station for processing;

6) That during defendant Kamu's processing he was found out to possess a slingshot or dart or finipin

There is no further elaboration of the circumstances leading to defendant's arrest, search and the resulting seizure of the slingshot.

Rule 4(a), Chuuk Rules of Criminal Procedure, provides, in relevant part, that "[i]f it appears from the complaint, or from affidavit or affidavit filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the government, a summons instead of a warrant shall issue." Rule 4(b) further provides that a finding of probable cause may be based upon hearsay. A police officer may, as a general rule, consider any evidence in determining whether reasonable suspicion or probable cause exists. The information may be provided by an informer. Police should consider the underlying circumstances from which the informer drew his conclusion. Some of the underlying circumstances must show that the informant was reliable. However, evidence to establish reasonable suspicion or probable cause may be entirely based upon hearsay. The general rule is that virtually any evidence may be considered. Kosrae v. Tosie, [2004] FMKSC 5; 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004).

"[P]robable cause exists when there is evidence and information sufficiently persuasive such that a cautious person would believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation." Berman v. Pohnpei, [2009] FMSC 39; 16 FSM Intrm. 567, 574 (Pon. 2009). The Court acknowledges the obvious in the State's reiteration of Chuuk Criminal Procedure Rule 4 (b): that hearsay may be used in whole or in part to support a finding of probable cause. But the problem with the affidavit in support of the information does not relate to hearsay. The affidavit is simply too vague. It does not contain any evidence or factual information that might lead a cautious person to believe it likely that defendant committed a crime prior to being arrested and searched.

Mention is made of law enforcement's receipt and response to a complaint. But the nature of that complaint is unspecified, either by hearsay or any other kind of evidence. Defendant is said to have been arrested and brought to DPS for processing as a result of police action triggered by the complaint. But the details and circumstances of that arrest are also unsubstantiated. The affidavit reads as a cursory afterthought to the arrest, incarceration, search and ultimate seizure perpetrated by law enforcement upon defendant; it could not, in and of itself, have supported a finding of probable cause prior to the arrest.

But the affidavit's failure to establish probable cause does not affect the charging or notice-providing component of the information. An information's fundamental purpose is to inform the defendant of the charges so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction, and an information deficient in these respects may be dismissed without prejudice. The test for a particular information's sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated therein. FSM v. Sato, [2008] FMSC 46; 16 FSM Intrm. 26, 28-29 (Chk. 2008). Defendant is properly charged with unlawful use and or possession of a slingshot, contrary to Chuuk State Law No. 9-08-12, § 4, ended by Chuuk State Lawe Law No. 10-09-04 and has been on notice of that fact since at least December 29, 2009. The issue now before the Court is how to disposa factually sufficient information unsupported by an affidaffidavit showing probable cause.

At the motion hearing the State elicited testimony from an officer involved in the actual arrest and another involved in defendant's search and booking, although neither was the affiant. The arresting officer provided sufficient detail to remedy the defects of the affidavit. Defendant was given the opportunity, and in fact did, cross-examine both witnesses. The Court finds their testimony credible and is satisfied that ample probable cause existed for defendant's arrest. There is nothing before the Court to indicate that defendant would in any way be prejudiced if the sworn testimony elicited at the hearing were admitted for the purposes of demonstrating that law enforcement had probable cause to arrest and subsequently search him incident to the arrest, at the time he was arrested. The charging portion of the information remains unaffected.

Defendant's motion to suppress is denied. The next status conference in this matter shall commence at 9:30 a.m. on March 29, 2011 at the Chuuk State Supreme Court.

Chuuk State Court

Chuuk v Alluki [2011] FMCSC 2; 17 FSM Intrm. 385 (Chk. S. Ct. Tr. 2011) (27 February 2011)