Federated States of Micronesia v Mark [1983] FMSC 7; 1 FSM Intrm. 284 (Pon. 1983) (29 June 1983)

THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as FSM v. Mark, [1983] FMSC 7; 1 FSM Intrm. 284 (Pon. 1983)

TRIAL DIVISION-STATE OF PONAPE

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

LOUIS MARK,
Defendant.

CRIMINAL ACTION NO. 1983-509

DENIAL OF MOTION TO
SUPPRESS EVIDENCE

Before the Honorable Edward C. King
Chief Justice
Ponape, Caroline Islands 96941
June 29, 1983

APPEARANCES:

For the Plaintiff: Carl Ullman
Assistant Attorney General
Office of the Attorney General
Federated States of Micronesia
Ponape, Caroline Islands 96941

For the Defendant: Loretta Faymonville
Public Defender
P.O. Box 238
Ponape, Caroline Islands 96941

[1 FSM Intrm.284]

National government police officers, after entering the land of defendant Louis Mark to inquire about a suspect in another case, spotted marijuana plants growing there.

Defendant Mark now asks that the seized marijuana be excluded from evidence in this case on the grounds that the plants were taken in violation of his constitutional protections against unreasonable search and seizure under Article IV, Section 5 of the Constitution of the Federated States of Micronesia.

I conclude, for the reasons stated in this opinion, that no search occurred and that the actions of the officers on Mr. Mark's land were reasonable. Therefore the motion to suppress is denied.

Factual Background

Police officers were looking for a juvenile defendant accused of committing arson. Their investigation, including information from the suspect's father, led them to believe that the young suspect from time to time stayed on the property of Louis Mark near Nanpohnmal Road in Nett Municipality.

Two officers went to Louis Mark's property on Friday, March 25, and were told by Mr. Mark that the juvenile was not there.

The next day three police officers returned. Turning off of Nanpohnmal Road onto a driveway on Mr. Mark's property, they parked the vehicle on the driveway, just off of the
road, some 25 feet in front of two buildings adjacent to

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but on opposite sides of the driveway. To the right of the driveway is a small dwelling house. This house has four walls, with a door at the front, another door on the side nearest the driveway and still another at the back of the house. Immediately across the driveway, approximately ten feet from the dwelling house, is a cookhouse, with open sides.

The police officers, seeing nobody present, walked up the driveway between the house and the cookhouse, then went behind the house, stopping at a cleared area immediately behind the house. They then called out greetings.

Louis Mark, who had observed their arrival from a nearby spot, approached them. Discussion ensued concerning the whereabouts of the juvenile suspect. Soon a woman, identified as the juvenile's mother, appeared from the vicinity of the cookhouse. She volunteered to go after the boy and indeed returned with him shortly.

In the meantime, while awaiting her return, the police officers standing behind the house had an unobstructed view of a garden some 30 or 40 feet from where they were standing.1 They noticed what appeared to be marijuana plants interspersed among other tall plants in the area.

[1 FSM Intrm.286]

Upon questioning, the defendant admitted he was cultivating the plants. The police officers pulled the plants from the ground, seizing them as evidence. This prosecution was then initiated, followed by defendant's motion to suppress.

I

This case poses several questions not previously considered by the Court.

A threshold issue is whether the police officers were entitled to enter the land of Louis Mark without a warrant or some kind of prior judicial authorization.

No such prior authorization was necessary. As already noted, the officers had information that the juvenile suspect stayed with the Marks or from time to time could be found there. At the very least they had ample reason to believe that people on the Mark premises had information concerning the whereabouts of the juvenile.

It bears emphasis that the police officers intended only to make general inquiries concerning the location of the juvenile. They had no reason to believe that there was contraband or any kind of evidence on the Mark property. There is no suggestion that they entered the property for the purposes of inspection or for any purpose other than to talk to the occupants concerning the juvenile suspect.

Investigating police officers necessarily make inquiries of numerous persons, many of whom eventually prove to have no knowledge concerning the matter under investigation.

[1 FSM Intrm.287]

To ask officers to try to carry out investigative duties without the right to enter private premises except with prior judicial authorization or express consent or invitation of the private owners of land, would place upon them an impossible burden.

This is not an occasion for attempting to define the precise bounds of the right of the police to enter private property to interview occupants during an investigation. It suffices for this case merely to recognize that where investigating police officers have reason to believe that somebody on private premises may have information pertaining to their investigations, they may enter those private lands to make reasonably non-intrusive efforts to determine if anybody there is willing to discuss the substance of their investigations.2 The police officers entering the Mark property were acting within this general authority.

II

Accepting, then, the right of the officers to enter the Mark land on March 26, the next issue is whether the officers conducted themselves properly on the premises in their efforts to locate occupants. Were they engaged in an improper search, or did they have a right to be where they

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were, at the back of the house, when they saw the marijuana plants?

Although the line between investigation, or general alertness, and a search is difficult to draw, it is generally agreed that for actions to constitute a search, there must be: (1) an examination of premises or a person; (2) in a manner encroaching upon one's reasonable expectation of privacy; (3) with an intention, or at least a hope, to discover contraband or evidence of guilt to be used in prosecution of a criminal action. McCormick's Law of Evidence § 169 (2d ed. 1972). Mere observation does not constitute a search. The term "search" implies exploratory investigation or quest. Haerr v. United States, [1957] USCA5 31; 240 F.2d 533 (5th Cir. 1957).

Here the officers did not intend to conduct a search. No testimony suggests that when the officers proceeded to the back door of Mr. Mark's house, they did so intending to conduct a search or for any purpose other than to find somebody who might have information concerning the arson suspect. As a general proposition, police officers who in the performance of their duty enter upon private property without an intention to look for evidence but merely to ask preliminary questions of the occupants cannot be said to be conducting a search within the meaning of the Constitution.3

[1 FSM Intrm.289]

This is not to say that police officers entering private property to ask preliminary questions of the occupants may move about freely on the property without concern for the privacy of the occupants. Officers entering private land should keep in mind that their entry on the property is at least technically a trespass, absent express or implied consent to the visit.4

It is conceivable that officers entitled to enter private property for purposes of making general inquiries could so abuse that privilege as to require the courts to take steps to protect the interests of citizens. Protection could be provided, for example, by finding that the privilege had been exceeded so that the movements of officers on the land constitute an actionable trespass for which a civil award of money damages might be granted.

In addition, the courts might find that wide-ranging and unwarranted movements of police officers on private land constitute an unreasonable invasion of privacy, or establish that the investigation evolved into a search. Under these circumstances, it might be held that any evidence located in the course of such official conduct must be suppressed and excluded from evidence.

[1 FSM Intrm.290]

This however is not such a case. The conduct of the police officers on the Mark land was proper. This is so even though preservation of privacy of the occupants apparently was not paramount in their minds.

If the primary concern of the police officers entering the Mark property had been to preserve inviolate the sanctity of the area and to avoid any unnecessary intrusion upon the privacy of the occupants, they could have engaged in a step by step process, exhausting the possibilities of locating occupants at each step, before proceeding to the next level of intrusion.

As the first step, for example, they could have remained in their vehicle at the front part of the driveway close to the road and blown their horn, awaiting response from occupants of the premises. That failing, they might next have stepped out and, while standing next to the vehicle, called out to persons on the land.

Under a "maximum possible privacy" approach, the next step might have been to take the most direct route to the nearest possible door of the nearest dwelling house.

If nobody responded to a knock on that door, they might then have proceeded to the cookhouse to peer in to see if anybody was there. Even under a maximum privacy approach, the police would perhaps eventually have worked their way to the back of the house, but only after exhausting their efforts to locate occupants through less intrusive means. Of course, the officers in this case did not make the initial

[1 FSM Intrm.291]

interim efforts outlined here. Instead they proceeded directly to the back of the house, a route and location which arguably reflected little effort to avoid unnecessary intrusion upon the privacy of the occupants of the premises.

However, a police officer is continually presented with varying circumstances calling for the exercise of judgment and discretion. While as a matter of good police practice surely police entering private land should strive to contact residents without unnecessary intrusion upon their land, or privacy, I find no constitutional or other provision of law which requires or authorizes this Court to insist that each judgment of a police officer on private property be finely honed, precisely calculated to locate individuals in absolutely
the least intrusive manner.5

Rather, it seems more appropriate to require only that their actions meet a standard of reasonableness. That is, investigating officers on private property must act in a manner reasonably calculated to locate persons on the premises without unreasonable intrusion on the privacy of the occupants.6

[1 FSM Intrm.292]

In this case, the police officers walked directly from their vehicle up the driveway between the dwelling house and the cookhouse. At no time did they stray any appreciable distance from these two buildings in which the occupants would most likely be found. They proceeded only until they reached what appeared to be a kind of clearing which they assumed was often used by the occupants when they are in their house. This area is close to both houses. Pictures and diagrams introduced into evidence, testimony, and knowledge of Micronesian living patterns, all suggest that this was an area in which the police might reasonably have expected to find people.

Prior to seeing the marijuana plants, the police officers did not wander away from the living area into the wooded area and did not engage in any type of activity which might be characterized as a search of the premises. I find that their conduct in reaching the area in which they spoke with Mr. Mark was reasonable and that their presence behind the house, from where the marijuana plants were in plain view, was reasonable, not in violation of Mr. Mark's rights, or those of any occupants of the premises.

III

This brings us to the last question. Upon viewing the marijuana plants, were the police officers entitled to seize and detain the plants, without first obtaining a warrant?

[1 FSM Intrm.293]

This Court has previously concluded that, because of parallels in language of the comparable clauses, and also because of guidance furnished by the Micronesian Constitutional Convention's Committee on Civil Rights in proposing the Declaration of Rights, we should "emphasize and carefully consider United States Supreme Court interpretations" of the Fourth Amendment of the United States Constitution in framing principles to be employed in upholding the protections against unreasonable search and seizure proclaimed in Article IV, Section 5 of the Constitution of the Federated States of Micronesia. FSM v. Tipen, 1 FSM Intrm. 79, 85 (1982).

Decisions under the Fourth Amendment of the United States Constitution point toward the conclusion that since the marijuana was in plain view of officers where they were entitled to be, a warrant was not necessary to authorize seizure.

It has long been settled that objects falling in the plain view of an officer that has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.

Harris v. United States, [1968] USSC 38; 390 U.S. 234, 236[1968] USSC 38; , 88 S. Ct. 992, 993[1968] USSC 38; , 19 L. Ed. 2d 1067, 1069 (1968). See also Coolidge v. New Hampshire, [1971] USSC 154; 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1961) where:

[Eight of nine members of the Supreme Court apparently accepted the basic proposition that if no unreasonable search was involved the warrant requirement did not demand that no seizure occur until the justification offered for its seizure was submitted to a magistrate and the magistrate determined the existence of probable cause .... If an object is in

[1 FSM Intrm.294]

"plain view," it may be seized without a warrant, providing there is probable cause to believe it is subject to seizure.

McCormick's Law of Evidence § 171 (2d ed. 1972).

While United States Supreme Court decisions interpreting that Constitution's Bill of Rights should be considered in determining the meaning of provisions in this Constitution's Declaration of Rights, we may not accept those holdings without testing suitability of the reasoning for the "social and geographical configuration of Micronesia." Alaphonso v. FSM, [1982] FMSC 22; 1 FSM Intrm. 209, 214 (1982). See also FSM Const. art. XI, § 11.

We must consider, then, whether circumstances different here from those in the United States more strongly call for a search warrant as a condition to seizure of contraband in plain view of a police officer, located by him inadvertently without a search.

To the contrary, social and geographical realities suggest that a search warrant requirement for seizure of contraband or evidence in plain view of an officer would be more burdensome here than in the United States.

The United States has a well-developed network of roads and communications systems. A police officer nearly anywhere in the United States can make almost instant contact with colleagues. With the availability of good roads and

[1 FSM Intrm.295]

communications, and numerous judges, warrants can be obtained quickly and with little disruption.

In Micronesia, the geographical realities are quite different. It could often take many hours, or even days, for a police officer to contact a judge and obtain a warrant. A police officer on an outer island or in a remote place on a large island such as Ponape often cannot even contact other police officers, let alone obtain their assistance or a judicial hearing promptly. The problems of prior or nonexistent roads and unreliable communication systems are compounded by the paucity of judges. Only two FSM Supreme Court justices, and the various state court and district court judges are authorized to execute warrants. See 12 F.S.M.C. §§ 506 and 507. See also Rules 4(c)(1) and 54 of this Court's Rules of Criminal Procedure. Even those few judges are concentrated in the government areas of the state capitals. None are on the outer islands.

None of these factors would have been serious impediments to efforts of the officers in the instant case to have obtained a warrant for the seizure of the marijuana plants. It would presumably have been rather easy for one or two of the officers to have remained at the Mark premises while the others drove the short distance down a paved road to Kolonia where judges are readily available.

[1 FSM Intrm.296]

Nevertheless, the obstacles mentioned often do exist in Micronesia and they discourage any tendency on the part of this Court to find warrant requirements in the Constitution of the Federated States of Micronesia beyond those established by the United States courts under the United States Constitution.

Important to the holding here is the fact that seizure of the plants did not require any additional intrusion upon the privacy of the occupants.7 The officers could walk directly to the garden across a clear area. They were not required to cross over a fence or indeed any obstacle to reach the garden. A warrant therefore was not essential.

Conclusion

For the reasons stated here, I conclude that the police officers' entry upon the Mark's land was permissible. Further, no search occurred. The actions of the officers in reaching, and remaining at, the back of the house were reasonably related to their investigatory purposes on the arson case. Thus the defendant had no valid constitutional or other legal objection to the presence of the officers at the back of the house nor to their inadvertent observation of the marijuana plants which were in plain view from that location. Since

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seizure of the plants required no further intrusion on the privacy of the residents, a warrant was not necessary.

The motion to suppress is denied.

So ordered as of the 29th day of June 1983.

Dated: 7/6/83

/s/ Edward C. King
Chief Justice
Supreme Court of the Federated
States of Micronesia

Entered this 6th day of July 1983.

/s/ Kiomasy Albert
Asst. Clerk of Court

[1 FSM Intrm.298]

1. The evidence indicates that these plants almost certainly could not have been noticed by a casual passerby on Nanpohnmal Road since large hedges obstructed any view of the garden from the road. Although there was some conflict in testimony and the evidence, I also find that the marijuana plants would not likely have been seen from the front of the house. They were in plain view only from behind the house.

2. It is noteworthy also that the officers here had received no indication of opposition to their entries on the land nor any suggestion that the occupants of the premises were unwilling
to cooperate with the investigation. Two officers visited the premises the day before and talked with Mr. Mark. He told them the juvenile was not there, but there is no indication that he was uncooperative or exhibited resentment of their presence.

3. This principle is firmly established in the United States. United States v. Hersh, 464 F.2d 228, 229-30 (9^th Cir. 1971), United States v. Knight, [1972] USCA5 290; 451 F.2d 275, 278 (5th Cir. 1971) cert. denied[1972] USSC 45; , 405 U.S. 965 (1972). The principle seems apt for the Federated States of Micronesia.

4. Evidence is not rendered inadmissible merely because it has been obtained in the course of a simple trespass on land. United States v. Romano, [1964] USCA2 294; 330 F.2d 566, 569 (2d Cir. 1964); United States v. Connor, [1973] USCA7 250; 478 F.2d 1320, 1323 (7th Cir. 1973); Atwell v. United States, [1969] USCA5 971; 414 F.2d 136, 138 (5th Cir. 1969); United States v. Young, [1963] USCA4 303; 322 F.2d 443 (4th Cir. 1963).

5. While officers entering private land obviously should respect the privacy of the occupants, this cannot be their only, or indeed even always their primary, concern. Respect for privacy must take its place along with other factors, such as the seriousness of the matter under investigation and the requirement for speedy police work to apprehend one who may pose a threat to the community, the need for stealth to prevent escape or avoidance of the police, and the physical safety of all concerned.

6. "The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative `less intrusive' means." Illinois v. Lafayette, [1983] USSC 132; 462 U.S. 640, 647[1983] USSC 132; , 103 S. Ct. 2605, 2610[1983] USSC 132; , 77 L. Ed. 2d 65, 72 (1983).

7. For example, if the officers, standing outside, had happened to see contraband inside the house, the question here would have been profoundly different. Seizure then would have required entry into the house, an additional intrusion upon the privacy of the occupants.