Federated States of Micronesia v George [1994] FMSC 41; 6 FSM Intrm. 626 (Kos. 1994) (24 February 1994)

FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION
Cite as FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626 (Kos. 1994)

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

STAIN A. GEORGE,
Defendant.
__________________________________________

CRIMINAL CASE NO. 1993-2500

ORDER AND MEMORANDUM OF DECISION

Martin Yinug
Associate Justice

Hearing: February 4, 1994
Decided: February 24, 1994

APPEARANCES:

For the Plaintiff:
Tim Stumpff, Esq.
Assistant Attorney General
Kosrae Attorney General's Office
P.O. Box AG
Lelu, Kosrae FM 96944

For the Defendant:
Robert Diemer, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Constitutional Law ─ Interpretation
If a matter may properly be resolved on statutory grounds without reaching potential constitutional issues, then the court should do so. FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626, 628 (Kos. 1994).

Criminal Law and Procedure — Arrest and Custody
An arrest is illegal if, at or before the time of arrest, the police make no reasonable effort to advise the person arrested as to the cause and authority of the arrest. FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626, 628 (Kos. 1994).

Criminal Law and Procedure ─ Interrogation and Confession
Even if the police advise a person of all his rights in strict compliance with the statute, the issue remains whether the incriminating statement was voluntarily made. Voluntariness of a statement made while in custody is determined not by consideration of a single fact alone but instead by reference to the totality of surrounding circumstances. One of the standards to be applied in assessing a claim of involuntariness is the length of detention of the arrested person. FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626, 629 (Kos. 1994).

Criminal Law and Procedure ─ Interrogation and Confession
Statements made by a person being questioned by police without being advised of all his rights violates 12 F.S.M.C. 218. A statement so obtained is rendered inadmissible by 12 F.S.M.C. 220. FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626, 629 (Kos. 1994).

Criminal Law and Procedure ─ Interrogation and Confession
When a person's ability to think or reason has been diminished due to lack of rest by being held in custody for over 12 hours, his submission to questioning is not an act of voluntariness or consent even though he was advised of some of his rights just before questioning. Any statements made then were the products of physical exhaustion and a sense of oppression, and as a result of violation of the accused's rights under 12 F.S.M.C. 218. Under 12 F.S.M.C. 220, the statement, or evidence derived therefrom, is thus inadmissible against the accused. FSM v. George, [1994] FMSC 41; 6 FSM Intrm. 626, 629 (Kos. 1994).

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COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

Defendant Stain A. George is charged with two counts of illegal possession and carrying of a firearm. He moves to suppress a statement he made to a police detective while in custody, and to exclude any evidence derivative of it. Mr. George contends that the written statement was obtained in violation of his statutory and constitutional rights under 12 F.S.M.C. 214, 218 and 220 and article IV, sections 3 and 5 of the FSM Constitution.

On February 4, 1994, I granted defendant's motion to continue trial of this case in order to hold an evidentiary hearing on the motion to suppress. Immediately I proceeded to hear testimony and oral arguments both in support of and in opposition to the motion to suppress.

Because counsel for the plaintiff argued that an arrested person could be held and released within 24 hours and it would still be "within a reasonable time" in compliance with 12 F.S.M.C. 218, I took the matter under advisement.

Having found that the police officer who effected the arrest of Mr. George did so without making every reasonable effort to tell him the cause and authority of the arrest, that those having custody of Mr. George failed for an unduly prolonged period of time to advise him of his rights before submitting himself to questioning and signing his name to an incriminating statement, I conclude that clear violations of 12 F.S.M.C. 214 and 218 occurred during the arrest and custodial interrogation of Mr. George. The motion to suppress is therefore granted.

The following memorandum is filed to explain the factual findings and reasoning for my decision.

MEMORANDUM

BACKGROUND FACTS

At approximately 12:40 a.m. on May 18, 1993, in Lelu, Kosrae, two police officers driving in a patrol car spotted the defendant, Stain A. George, along the road carrying a shotgun. They stopped the car as they were about to pass Mr. George. One of them got out, walked over to Mr. George and handcuffed him. There was conflicting testimony on whether Mr. George grabbed the police officer's uniform before the police officer handcuffed him, whether the police officer found the shotgun before or after he arrested Mr. George, and whether Mr. George was drunk or sober. There was uncontroverted testimony that before arresting Mr. George the police officer asked, "Where is the shotgun?" to which Mr. George replied, "I don't know anything about a shotgun." Mr. George testified that while being handcuffed he asked the police officer, "What are you doing? Why are you doing this to me?" The police officer did not say anything in response. The two police officers took Mr. George in the patrol car to the central police station where he remained in custody until he was seen some 12 hours later by a police detective for questioning. It was not contested that the police officers did not tell Mr. George why they arrested him nor inform him of his rights as specified in 12 F.S.M.C. 218 starting from the time of arrest, during the drive to central police station, and while in custody awaiting questioning. A police detective testified that he took Mr. George's statement at 1:10 p.m. on May 18, 1993. On cross examination, Mr. George testified that he understood the statement he made in response to questioning by the police detective and that he signed his name to the statement at 1:10 p.m. The police detective testified that from an advice of rights form he read Mr. George his right to remain silent and his right to a lawyer. He further testified that Mr. George did not ask to see a lawyer or family member or to use a telephone.

LEGAL ANALYSIS

If a matter may properly be resolved on statutory grounds without reaching potential constitutional issues, then the court should do so. FSM v. Edward, [1988] FMKSC 6; 3 FSM Intrm. 224, 230 (Pon. 1987). Here, the analysis must begin with the statute.

The issue, then, is whether the statement made by Mr. George to the police detective was obtained as a result of questioning conducted without advising Mr. George of all his rights as required by 12 F.S.M.C. 214 and 218.

The language of the statute is unambiguous: "Any person making an arrest shall, at or before the time of arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest." 12 F.S.M.C. 214(1).

The police officer who effected the arrest of Mr. George simply asked "Where is the shotgun?" He failed to offer any reason or explanation for the arrest either before or during the arrest of Mr. George. Based on the testimony presented at the evidentiary hearing, the police officer just did not make every reasonable effort to advise Mr. George of the cause and authority of the arrest as commanded by the statute. Mr. George was never told why he was under arrest even after he was taken to the police station.

Turning to 12 F.S.M.C. 218, I conclude that Mr. George was questioned by the police detective without being advised of all his rights. Subsections (1) through (5) of 12 F.S.M.C. 218 list the rights which may not be denied in case of an arrest. Subsections (6) and (7) of Section 218, Title 12, are designed to assure that an arrested person will be advised of his rights. Based on the testimony of the police detective, I have grave doubts that 12 F.S.M.C. 218 (6) and (7) were fully complied with here.

Finally, even if the police detective advised Mr. George of all his rights in strict compliance with the statute, which he did not, there remains the issue of whether the incriminating statement Mr. George gave the police detective was not voluntarily made. One of the standards to be applied in assessing a claim of involuntariness is the length of detention of the arrested person. Voluntariness of a statement made is determined not by consideration of a single fact alone but instead by reference to the totality of surrounding circumstances. FSM v. Jonathan, [1986] FMSC 5; 2 FSM Intrm. 189, 197 (Kos. 1986). Mr. George was held under police control for over 12 hours without giving him his rights. He could not rest during the whole time he was in custody.

CONCLUSION

First, Mr. George's arrest was in clear violation of 12 F.S.M.C. 214(1) because the police officers did not inform Mr. George of the cause and authority of the arrest, at or before the time of arrest. Thus suppression of Mr. George's subsequent statement to the police detective is required by 12 F.S.M.C. 220.

Second, the questioning of Mr. George by the police detective without advising him of all his rights was violative of his rights under 12 F.S.M.C. 218. His statement obtained as a direct result of this violation therefore is rendered inadmissible by 12 F.S.M.C. 220.

Finally, a review of the totality of the circumstances lead to the conclusion that by the time Mr. George was being advised of some of his rights after 1:00 p.m. on May 18, 1993, his ability to think or reason had been diminished due to lack of rest. His submission to questioning was not an act of voluntariness or consent. Any statements he made at that point were the products of physical exhaustion and a sense of oppression. His will was weakened and overborne as a result of violation of his rights under 12 F.S.M.C. 218. No statement, or evidence derived therefrom, obtained as a result of such violation shall be admissible against the accused. 12 F.S.M.C. 220.

The motion to suppress is granted.

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