Federated States of Micronesia v Edward [2012] FMSC 41; 18 FSM Intrm. 444 (Pon. 2012) (30 November 2012)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2011-500

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

MARSON EDWARD and RIKARD PRIMO a/k/a RIKARD DAVID,
Defendants.
__________________________________________

ORDER DENYING IN PART AND GRANTING IN PART MOTION TO SUPPRESS

Dennis K. Yamase
Associate Justice

Hearing: May 23, 2012
Decided: November 30, 2012

APPEARANCES:

For the Plaintiff: Daniel Rescue, Jr., Esq.

Assistant Attorney General

FSM Department of Justice

P.O. Box PS-105

Palikir, Pohnpei FM 96941

For the Defendant: Harry A. Seymour, Esq.

(Edward) Office of the Public Defender

P.O. Box 245

Tofol, Kosrae FM 96944

For the Defendant: Timoci Romanu, Esq.

(Primo) Office of the Public Defender

P.O. Box PS-174

Palikir, Pohnpei FM 96941

* * * *

HEADNOTES

Criminal Law and Procedure - Arrest and Custody
One should be considered "arrested" when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime. This standard comports with the statutory definition of arrest used in 12 F.S.M.C. 218. FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444, 449 & n.3 (Pon. 2012).

Criminal Law and Procedure - Arrest and Custody
A person was not under arrest when he was told by the officers that they were informed that he might know something about a recent break-in and asked if he would be willing to go with them to the police station for questioning and he agreed but voluntarily entered the police vehicle and during the ride to the police station he sat with an officer in the back seat and was not handcuffed or otherwise restrained in any way. No arrest was made when he entered the police vehicle and was transported to the police station, as the break-in was still under investigation, as he was thought to know something about the break-in, and as the officer told him that he was not under arrest at that time, but that they wanted to know his story regarding the break-in. FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444, 449 (Pon. 2012).

Criminal Law and Procedure - Interrogation and Confession
When, after arriving at the police station, a person was advised of his constitutional rights in a "Your Rights in the Constitution" form that he signed; when the officer went over his rights one by one; when the officer specifically asked the person whether he needed a lawyer at that time and he said no; when, by signing the form, he acknowledged that he had been advised of his rights and understood them; when, following his signing of the advice of rights form, the police officers began their interrogation; and when there was no use of threats by the police officers and he was not under duress at the time, the evidence shows that his statements were made knowingly and voluntarily and that his statements were not extracted through any form of compulsion. FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444, 449-50 (Pon. 2012).

Criminal Law and Procedure - Arrest and Custody
In any case of arrest, it is unlawful to fail either to release or charge an arrested person with a criminal offense within a reasonable time, which must under no circumstances exceed 24 hours. FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444, 451 (Pon. 2012).

Criminal Law and Procedure - Arrest and Custody; Criminal Law and Procedure - Interrogation and Confession; Search and Seizure
When the government had not complied with 12 F.S.M.C. 218 by releasing or charging the defendant within 24 hours of his arrest, the statements made and evidence retrieved thereafter until he was released will be suppressed because evidence obtained as a result of a violation of 12 F.S.M.C. 218 is not admissible against an accused. FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444, 451 (Pon. 2012).

Criminal Law and Procedure - Arrest and Custody; Criminal Law and Procedure - Interrogation and Confession; Search and Seizure
Although evidence and statements lawfully obtained from an accused before he has been detained over 24 hours will be admissible, the accused is entitled to the suppression of any evidence of statements obtained from him after the first 24 hours of his detention. FSM v. Edward, [2012] FMSC 41; 18 FSM Intrm. 444, 451 (Pon. 2012).

* * * *

COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

I. Background

A Motion to Suppress Defendant Edward's Statement and Other Evidence obtained as a Result of His Statements was filed by the Defendant Marson Edward (Edward) on April 4, 2012. The Plaintiff Federated States of Micronesia (FSM or Government) filed its Response to Defendant's Motion for Suppression of Statement and Other Evidence on April 13, 2012. The Co-Defendant Rikard Primo aka Rikard David (Primo), did not submit any filings.

A hearing on the Defendant Edward's Motion to Suppress was held on May 23, 2012. FSM Assistant Attorney General Daniel Rescue, Jr., Esq. appeared for the FSM. Assistant Public Defender in the Kosrae office Harry Seymour, Esq. appeared on behalf of Edward. Assistant Public Defender in the Pohnpei office Timoci Romanu appeared for Rikard. Both the Defendants Edward and Rikard appeared personally. The Defendant Edward testified at the suppression hearing. FSM Department of Public Safety (DPS) officers Rensper Martin, Wensper Raymond, and Brensen Penias also testified at the hearing as witnesses for the Government.

Based on the testimony presented at the May 23, 2012 hearing and the other relevant and admitted evidence and records in this matter, the court makes the following findings and determination.

II. Findings

This matter commenced from a criminal investigation undertaken by the FSM DPS following a reported break-in at the FSM Post Office in Palikir, Pohnpei (Palikir Post Office) in the early morning hours of August 15, 2011. The DPS was initially notified of the break-in by a telephone call from FSM Postal Inspector Rodick Albert at around 9:00 a.m. that morning.

A few weeks after the break-in, while in the regular course of conducting police investigations, the DPS received information from a Pelsin Jack that the Defendant Marson Edward was involved in the break-in at the Palikir Post Office. Based on this information, three DPS officers, Wensper Raymond, Lorenzo Robert, and Rensper Martin went to Edward's home located in Nan Mal, Palikir on the morning of August 31, 2011. The parents of Marson Edward informed the DPS officers that Edward was in Roi, Kitti, staying with a sister. Officer Martin personally knows Edward and is familiar with the Roi, Kitti area.

The three DPS officers drove to the Roi, Kitti area at a time approximated to be between 10:00 to 10:30 a.m. Edward was walking in the area with two other individuals. Upon seeing the DPS vehicle, Edward ran into a mangrove area. The three officers got out of the vehicle and followed Edward on foot in the direction he was heading. The officers then spent some time searching for Edward.

At approximately 10:45 a.m., Edward came out of the mangrove area. Officer Raymond then informed Edward that they had reason to believe he knew something about a recent break-in at the Palikir Post Office. The testimony of Officer Rensper Martin stated that he thought Edward might know who did the break-in.

Edward was asked to accompany the officers back to the Palikir police station for questioning. The testimony of the witnesses did not indicate any forceful conduct by the officers, nor any resistance by Edward in agreeing with the officers' request. The testimony of Officers Rensper Martin and Wensper Raymond specifically stated that Edward was not placed under arrest at this time, nor was he told that he had the right not to go with the officers.

Edward voluntarily got into the back seat of the DPS vehicle and was seated with Officer Martin on their ride to the police station. During the ride, Edward was not in handcuffs or otherwise restrained. The DPS vehicle traveled to Edward's residence where he picked up some items, including a backpack, and then went to the police station.

After arriving at the police station, Edward was put in the interrogation room. At approximately 11:30 a.m., while seated inside the interrogation room, Officer Wensper Raymond read and went over with Edward his rights using a "Your Rights in the Constitution" form. Pl.'s Ex. B in Pohnpeian; Pl.'s Ex. C in English.

The Your Rights in the Constitution form that was used (also referred to as an advice of rights form) was in Pohnpeian, was dated August 31, 2011 with a time entry of 11:36 a.m., and showed Edward's printed first name "Marson" and his signature on the line below the Waiver of Rights section located on the second page of the form. Pl.'s Ex. B. The form indicates that Officers Wensper Raymond and Lorenso Robert were witnesses to Edward's acknowledgment by printing and signing their names on the witness signature lines below Edward's signature. Pl.'s Ex. B.

The DPS officers began their interview with Edward which lasted until around 2:30 p.m. of that same afternoon. Aff. of Officer Wensper Raymond (Apr. 11, 2012) (attached to the Gov't's reply to defendant's motion to suppress). The testimony of Officer Raymond stated that after the interview was completed, he informed Edward that he was going to jail. Edward was then taken by the officers to the Pohnpei State Jail, and was received and processed at the recorded time of 3:09 p.m., Wednesday, August 31, 2011. "Record of Detention," Pl.'s Ex. "A." Edward spent a night at the jail and was released to DPS officers the following day, Thursday, September 1, 2011, at the recorded time of 3:08 p.m. Id.

The court received conflicting versions of what occurred after DPS police officers picked Edward up from the jail in the suppression motion and attached affidavit. Aff. of Marson Edward (Apr. 4, 2012) (attached to defendant's motion to suppress). Edward stated that when he was released to the officers on September 1, 2011, he was taken to the Palikir police station, where he was given a "Statement of Rights form written in Pohnpeian language" to sign. Mot. at 2; Def. Aff. (attached to Mot., para. 11). Edward then signed the written statement of rights form and was interrogated by the police again. Id.

After the interrogation, Edward was asked to lead a DPS officer to where the postal articles taken from the post office were to be found. Edward complied and some postal articles were retrieved near the FSM Congress Chamber. Def. Aff. to Mot., para. 11.

The FSM submits that "after arriving at the Palikir police station on September 1, 2011, the defendant was asked where the stolen items were, based on the police's interest of preserving evidence . . . . The defendant was not restrained during this period, in fact, the defendant voluntarily walked to a corner of the capital compound near the Congress building and assisted officer Brensen Penias in retrieving the articles." Gov't Rep. at 3-4, Ex. G, Aff. of Brensen Penias.

Edward testified that after he was picked up from the jail on the afternoon of September 1, 2011, police officers took him back to the Palikir police station and questioned him further on the break-in and on the location of the stolen postal items. Thereafter, the officers drove him to the FSM Congress parking lot. Edward then led the police to a wooded area approximately 40 to 50 feet from the Congress Chambers, where two boxes of items were located.

A difference between the two versions of what transpired is the timing of Edward's signing of the advice of rights form. The FSM contends that Edward was read his rights after arriving at the Palikir police station at 11:36 a.m. on August 31, 2011. Edward provided conflicting information that he signed an advice of rights form after he was picked up from the jail sometime after 3:08 p.m. on September 1, 2011. In testimony at the suppression hearing, however, Edward stated he was read his rights, understood them, and signed the form after he was brought to the police station from Roi, Kitti on August 31, 2012.

The court observed the demeanor of the witnesses that testified and finds that the testimony, corroborated by the date and time on the advice of rights form, are credible and that Edward was read his rights utilizing the advice of rights form and signed this form at the police station on August 31, 2011. Pl.'s Ex. B and C.

The court takes judicial notice that at 4:30 p.m., on September 1, 2011, the FSM filed an Information against Defendants Marson Edward and Rikard Primo (a/k/a Rikard David), charging them with two counts of burglary and theft. In Count 1, Burglary of Post Office contrary to 39 F.S.M.C. 243.[1] In Count 2, Theft of Mail Matter Generally contrary to 39 F.S.M.C. 221.[2] The court takes judicial notice that an initial appearance for the Defendants Edward and Primo was held on September 2, 2011 at 2:45 p.m. at the FSM Supreme Court in Palikir, Pohnpei. FSM Evid. R. 201.

III. Motion to Suppress

Edward seeks suppression of the statements he made to the police and evidence obtained as a result of the statements made on the grounds that the statements and evidence were illegally obtained. Edward is challenging and disputing the actual time of the arrest. Edward argues that he was arrested in Roi, Kitti on August 31, 2011, at approximately 10:44 a.m., at the time when the DPS officers initially picked him up and transported him to the police station for questioning.

The FSM contends that the arrest of Edward was not made at Roi, Kitti, but arrest was effectuated at a point in time after Edward was interviewed at the police station on August 31, 2011, and thereafter transported and processed at the Pohnpei State Jail that same afternoon. Gov't Resp. at 4.

The court must determine the actual time of Edward's arrest before proceeding to a further examination and determination of whether Edward's statements and other evidence were obtained illegally, and should be suppressed.
1. When Arrest Made and Should Statements Made on August 31, 2011 Be Suppressed?

The facts and testimonies are not clear on the date and time when the police officers officially placed Edward under arrest. Edward argues that he was arrested when his freedom of movement was substantially restricted or controlled by police officers, at the time he was put in the DPS vehicle at Roi, Kitti on August 31, 2011, at 10:44 a.m. and escorted by the police officers to the police station for questioning.

The FSM argues that Edward was not arrested until after he was interviewed and thereafter transported to the Pohnpei State Jail. Gov't Resp. at 4. The approximate time the interviews ended was 2:30 p.m. on Wednesday, August 31, 2011. The Record of Detention shows August 31, 2011, 3:09 p.m., as the date and time Edward was processed and placed in the jail. Edward remained in the jail until Thursday, September 1, 2011 at 3:08 p.m. when DPS officers obtained his release and transported him from the jail.

The court looks to the standard used in FSM v. Edward, [1988] FMKSC 6; 3 FSM Intrm. 224, 240 (Pon. 1987), to determine when a defendant's movement is substantially restricted. "One should be considered 'arrested' when one's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime." Id. at 232.[3]

Based upon the testimony of the witnesses and other evidence, the court finds that Edward was not arrested at the time he was picked up for questioning in Roi, Kitti. After being located there by police officers, Edward disappeared for awhile, but then voluntarily reappeared to the officers. He was told by the officers that they were informed that he might know something about the recent break-in at the Palikir Post Office and asked if he would be willing to go with them to the Palikir police station for questioning. He agreed and voluntarily entered the DPS vehicle. During the ride to the police station he sat with Officer Martin in the back seat. During the ride to the police station he was not handcuffed or otherwise restrained in any way.

The court finds that there was no arrest made when Edward entered the DPS vehicle and was transported to the police station, as the break-in at the Palikir Post Office was still under investigation and Edward was thought to know something about the break-in. Officer Wensper Raymond told Edward that he was not under arrest at that time, but that they wanted to know his story regarding the break-in of the post office.

After arriving at the police station, Edward was advised of his constitutional rights in a "Your Rights in the Constitution" form that he signed, with the entry date and time of August 31, 2011, at 11:36 a.m. The testimony of Officer Raymond was that Edward's rights were gone over with him one by one. When they arrived at the police station Officer Raymond offered Edward some water and showed him where the restroom was. He specifically asked Edward whether he needed a lawyer at that time and Edward said no. Following Edward's signing of the advice of rights form, the police officers began their interrogation.
By signing the form, Edward acknowledged that he had been advised of his rights and understood them. Edward provided direct testimony of this at the suppression hearing. The interview commenced within an hour after arrival at the police station, and at the time Edward signed the form, at 11:36 a.m., he was with the police for less than two hours. The interview lasted for approximately three hours until around 2:30 p.m. Aff. of Wensper Raymond, para. 16.

The testimony and evidence, show that Edward's statements were made knowingly and voluntarily, and that his statements were not extracted through any form of compulsion. There was no use of threats by the police officers and Edward was not under duress at the time. FSM v. Menisio, [2006] FMSC 44; 14 FSM Intrm. 316, 319 (Chk. 2006) (when the evidence was uncontroverted that the defendant signed a Chuukese language advice of rights form showing that he had been informed of each of his rights under 12 F.S.M.C. 218, that he understood those rights, and that he waived his rights to silence, to have an attorney or someone else present on his behalf, and to have someone called for him, the statement he gave at the time the advice of rights and waiver form was executed was knowingly and intelligently and therefore voluntarily given).

Based on the information the DPS officers had after interviewing and taking the statement of Edward, they had sufficient probable cause for the arrest. The court finds that the arrest was made following the interview at approximately 2:30 p.m., before Edward was brought to the Pohnpei State Jail and processed at 3:09 p.m. Edward stated in his testimony that he was asked questions first and then told that he was going to jail. This is corroborated by the testimony of Officer Raymond. Edward was then jailed until the following day. At the point when Edward was told he was going to jail, his freedom of movement was substantially curtailed and he was under arrest.

2. Should the Statements and Evidence Obtained on September 1, 2011 Be Suppressed?

Edward argues that his statements, the postal articles, and other evidence illegally obtained by the police on September 1, 2011 must be suppressed on the grounds that they were illegally obtained. Edward contends that his rights protected under 12 F.S.M.C. 218(4) and (5),[4] Mot. at 6, were violated.

The court has determined that Edward was arrested at 2:30 p.m., on August 31, 2011 at the time his questioning was completed and he was told he was going to jail. Edward was then taken to the Pohnpei State Jail and was processed and incarcerated. Edward was picked up at the jail the next day and released from jail on September 1, 2011 at 3:08 p.m. Edward was picked up by DPS police officers and from the jail he was taken to the DPS Palikir police station where he was further questioned. With his assistance, postal articles and other evidence were retrieved from the wooded areas near the Congress Chambers at Palikir.

At the time Edward was picked up at the jail by the police officers, the 24 hour period had passed since he was under arrest at 2:30 p.m. Even after he was released from the jail and picked up by police officers, Edward was still under the control of the officers, until after he had assisted them in retrieving certain items near the Congress Chamber. After the items were processed, Edward was then released.

In any case of arrest, it is unlawful to fail either to release or charge an arrested person with a criminal offense within a reasonable time, which must under no circumstances exceed 24 hours. Menisio, 14 FSM Intrm. at 319.

The court finds that the Government had not complied with 12 F.S.M.C. 218 and therefore the statements made and evidence retrieved after 2:30 p.m. on September 1, 2011 until he was released are hereby suppressed. "Evidence obtained as a result of a violation of 12 F.S.M.C. 218 is not admissible against an accused." 12 F.S.M.C. 220; Menisio, 14 FSM Intrm. at 319.

"Although evidence and statements lawfully obtained from an accused before he has been detained over 24 hours will be admissible, the accused is entitled to the suppression of any evidence of statements obtained from him after the first 24 hours of his detention." FSM v. Suzuki, [2010] FMSC 9; 17 FSM Intrm. 70, 74 (Chk. 2010) (citing FSM v. Sato, [2008] FMSC 46; 16 FSM Intrm. 26, 30 (Chk. 2008); Menisio, 14 FSM Intrm. at 320.

IV. Conclusion

The Motion to Suppress Defendant Edward's Statement and Other Evidence obtained as a Result of His Statements is hereby denied in part and granted in part. The motion to suppress the Defendant Edward's interview statements provided to the police on August 31, 2011, beginning around 11:36 a.m., and completed around 2:30 p.m., is hereby denied and those statements are not suppressed. The motion to suppress the statements and evidence obtained after 2:30 p.m. on August 31, 2011, including postal articles retrieved from an area near the Congress Chambers on the afternoon of September 1, 2011 is hereby granted and those statements and evidence are hereby suppressed.

V. Trial Dates

The parties in this matter shall check the court calendar, confer with each other, and agree to three alternative trial dates. The FSM shall submit these agreed upon trial dates to the court by December 20, 2012.

* * * *

---

^[1] Whoever forcibly breaks into or attempts to break into any post office, or any building used in whole or in part as a post office, with intent to commit in such post office, or building or part thereof, so used, any larceny or other depredation, shall be fined not more than $1,000 or imprisoned not more than five years, or both.

^[2] Whoever steals, destroys, or otherwise unlawfully takes any article of mail from a post office, a Postal Service officer, or any authorized mail receptacle or locale, shall be fined not more than $2,000, or imprisoned not more than three years, or both.

^[3] In FSM v. Louis, [2007] FMSC 61; 15 FSM Intrm. 348, 352 (Pon. 2007) the court made it clear that the test in determining arrest used in FSM v. Edward, [1988] FMKSC 6; 3 FSM Intrm. 224 (Pon. 1987) comports with the statutory definition of arrest used in Chapter 2 of 12 F.S.M.C. Ä Rights of Person Arrested. "One should be considered ‘arrested’ within the meaning of 12 F.S.M.C. 218 when one’s freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer’s suspicion that the detained person may be, or may have been, involved in commission of a crime."
^[4]§ 218. Rights of persons arrested.
In any case of arrest, or arrest for examination, as provided in subsection (4) of section 211 of this chapter, it shall be unlawful to:
. . .

(4) fail either to release or charge such arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed 24 hours; or

(5) fail to either release the accused or to bring him before a court, judge, or judicial officer for a bail hearing within a reasonable time, which under no circumstances shall exceed 24 hours after his arrest . . The person arrested shall be transported to the nearest court without unnecessary delay.