FSM v Isaac [2017] FMSC 39; 21 FSM R. 370 (Pon. 2017) (26 October 2017)

FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2017-502

FEDERATED STATES OF MICRONESIA, )
)
Plaintiff, )
)
vs. )
)
JONESPER ISAAC a/k/a KOIKOI ISAAC, )
)
Defendant. )
__________________________________________ )

ORDER DENYING MOTIONS TO SUPPRESS AND DISMISS

Dennis K. Yamase
Chief Justice

Decided: October 26, 2017

APPEARANCES:

For the Plaintiff: Craig D. Refner, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendant: Nixon Alten
Lorrie Johnson-Asher, Esq. (supervisor)
Chief Public Defender
P.O. Box 1736
Kolonia, Pohnpei FM 96941

* * * *

HEADNOTES

Criminal Law and Procedure Arrest and Custody; Search and Seizure Probable Cause
Police officers had probable cause to arrest a person, whose fingerprints were found at the crime scene, when he turned over the alleged stolen goods because probable cause is present when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. FSM v. Isaac, 21 FSM R. 370, 374 (Pon. 2017).

Criminal Law and Procedure Arrest and Custody; Search and Seizure Probable Cause
The police have a reasonable suspicion about someone’s involvement in the crime when they have a particularized and objective basis, supported by specific and articulable facts, for suspecting that person of criminal activity. FSM v. Isaac, 21 FSM R. 370, 374 & n.5 (Pon. 2017).

Criminal Law and Procedure Arrest and Custody; Search and Seizure Probable Cause
Even if the police officers have probable cause to make an arrest, nothing precludes them from further investigating someone before arresting him because questioning of witnesses and suspects is a necessary tool for the effective enforcement of criminal laws, and without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. FSM v. Isaac, 21 FSM R. 370, 374 (Pon. 2017).

Criminal Law and Procedure Arrest and Custody; Search and Seizure Probable Cause
Once someone voluntarily led the investigating officers to and surrendered the alleged stolen items, probable cause existed to arrest him and no warrant was necessary. FSM v. Isaac, 21 FSM R. 370, 374 (Pon. 2017).

Criminal Law and Procedure Arrest and Custody
There is no set procedure that must be followed to comply with the requirement that any person making an arrest must, at or before the arrest, make every reasonable effort to advise the person arrested as to the cause and authority of the arrest. The notice is sufficient when it is such as to inform a reasonable man of the authority and purpose of the one making the arrest and the reason thereof. Circumstances, without express words, may afford sufficient notice. FSM v. Isaac, 21 FSM R. 370, 375 (Pon. 2017).

Criminal Law and Procedure Arrest and Custody
No violation of defendant’s rights under 12 F.S.M.C. 214(1) occurred when the affidavits, oral testimony, along with the officers’ years of experience, support the fact that the officers advised the defendant of his rights after his arrest and that the rights were given in the Pohnpeian language. FSM v. Isaac, 21 FSM R. 370, 375 (Pon. 2017).

Criminal Law and Procedure Interrogation and Confession
The question "Do you know why we are here?" did not constitute an interrogation of the suspect’s involvement in the crime, but was rather an inquiry directed towards him about whether he knew why the police were at his residence (which is the question’s literal and plain meaning) since he was not confined or arrested when asked the question and since the question could have solicited various responses, including a "No" or a silent reply. FSM v. Isaac, 21 FSM R. 370, 375 (Pon. 2017).

Criminal Law and Procedure Interrogation and Confession

That an investigation has focused on a suspect does not trigger the need for warnings in a non-custodial setting, and that situation is not comparable to that of a suspect who is physically restrained and painfully aware that he literally cannot escape a persistent custodial interrogator. FSM v. Isaac, 21 FSM R. 370, 376 (Pon. 2017).

Criminal Law and Procedure Arrest and Custody
The statutory and constitutional right to be advised of one’s rights are owing to anyone arrested, and an arrest is the placing any person under any form of detention by legal authority. FSM v. Isaac, 21 FSM R. 370, 376 (Pon. 2017).

Constitutional Law Equal Protection
The Constitution provides that equal protection under the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language or social status. This provision guarantees that similarly situated individuals are not treated differently due to some sort of invidious discrimination. When a person does not argue or submit evidence to show that he is being discriminated upon as a member of a protected class, or that he is being treated differently from similarly situated individuals, his equal protection claim is unsupported. FSM v. Isaac, 21 FSM R. 370, 376-77 (Pon. 2017).

Constitutional Law Due Process; Criminal Law and Procedure Dismissal
When a defendant’s claim for due process violation is unsubstantiated and uncorroborated except by the defendant’s testimony, the defendant’s motion to suppress and to dismiss his case in its entirety will be denied. FSM v. Isaac, 21 FSM R. 370, 377 (Pon. 2017).

* * * *

COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

I. BACKGROUND

On May 26, 2017 the Defendant Jonesper Isaac (herein "Isaac"), filed a Motion to Suppress Evidence and Dismiss Case in its Entirety. A supplemental filing to the Defendant’s motion was submitted on May 30, 2017. An opposition to the Defendant’s motion was entered on June 19, 2017 by the Plaintiff Federated States of Micronesia (herein the "Government").

A hearing on the motions was held on August 21, 2017. Assistant Attorney General Craig D. Refner, Esq., through the FSM Department of Justice, appeared on behalf of the Government. Assistant Public Defender Nixon Alten, under the supervision of Chief Public Defender, Lorrie Johnson-Asher, Esq., through the FSM Public Defender’s Office, represented the Defendant Isaac. Isaac was present during the hearing.

During the hearing, the Court received the testimony of FSM National Police officers Kasner Aldens and Brensen Penias, and the Defendant Isaac. After a review of the testimony of the witnesses, the submission of other evidence by the parties, the arguments of counsel for the Government and the Defendant, the Defendant Isaac’s motions to suppress and dismiss are HEREBY DENIED. The reasons follow.

I. FACTS

On March 17, 2017, a break-in at the FSM Department of Health at the National Capitol in Palikir, Pohnpei was reported to the FSM National Police, where items were reported missing. As part of the investigation at the crime scene, fingerprints were lifted from a glass louver, which matched those of the Defendant Isaac, whose prints were on file at the National Police Office.^[1]

As a result of the finger printing, police officers Aldens and Penias went to Isaac’s home in Nanais, Palikir. Testimony received from the three (3) witnesses show that upon their arrival at the home, the officer’s asked the Defendant "Do you know why we are here?" to which the Defendant stated "I think I know the reason." Def.’s Mot. to Suppress at 4.^[2] The Defendant then led the officers to, and turned over, several alleged stolen items and was then, according to the testifying officers, arrested, read his rights, and taken into custody.

II. DISCUSSION

In his pending motion, Isaac brings forth the following claims: (1) Lack of probable cause under 12 F.S.M.C. 202; (2) Violation of 12 F.S.M.C. 214(1); (3) Violation of 12 F.S.M.C. 218(6) and(7); and (4) Violation of FSM Const. art. IV, § 3. The Court will look at each argument, in turn.

(1) Lack of Probable Cause under 12 F.S.M.C. 202.

The Defendant argues that under 12 F.S.M.C. 202, a warrant of arrest was needed before the police placed him under arrest at his home, and, the warrant exceptions under 12 F.S.M.C. 211 do not apply.^[3] The Defendant further claims that the Government produced a warrant during discovery, however, that warrant was not signed by a Judicial Officer, as required under 12 F.S.M.C. 203.^[4] Id. at 2.

The Government argues that on March 17, 2017, the police officers went to the Defendant’s home to question him about the incident, not to immediately place him under arrest, and that the Defendant voluntarily turned over the stolen items when asked if he knew why the officers were there. Gov’t’s Opp’n at 3-4.

The Court finds that the officers had probable cause to arrest the Defendant after he turned over the alleged stolen goods. Probable cause is present when there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation of the law has occurred and that the accused committed that violation. FSM v. Wainit, 12 FSM R. 105, 108 (Chk. 2003); FSM v. Zhong Yuan Yu No. 621, 6 FSM R. 584, 588-89 (Pon. 1994).

Although officer Aldens testified that the results of the finger printing gave them probable cause to arrest the Defendant, it appears that when the police officers went to the Defendant’s residence on March 17, 2017, they at least had a reasonable suspicion as to Isaac’s involvement in the crime and wanted to further question him as to the break-in.^[5] Even if the police officers had probable cause at the time, nothing would preclude them from further investigation of the Defendant before placing him under arrest. "[Q]uestioning of witnesses and suspects is a necessary tool for the effective enforcement of criminal laws. ‘Without such investigation, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved.’" FSM v. Jonathan, 2 FSM R. 189, 194 (Kos. 1986) (quoting Schneckloth v. Bustamonte, [1973] USSC 118; 412 U.S. 218, 225; [1973] USSC 118; 93 S. Ct. 2041, 2046; 36 L. Ed. 2d 854, 861 (1973)).

The officers apparently intended to conduct further investigation which is supported by the actions of the officers in asking the Defendant "Do you know why we are here?" when they first came into contact with him. Once the Defendant voluntarily led and surrendered to the officers the alleged stolen items, the officers then placed the Defendant Isaac under arrest.

The Court finds probable cause did exist when Isaac turned over the items, no warrant was necessary to place the Defendant under arrest under 12 F.S.M.C. 211(3).^[6] The Government also argued during the hearing that a Penal Summons, instead of an Arrest Warrant, was issued, which is why it was signed by the Clerk of Court, and not a Judge. Accordingly, the Court finds in favor of the Government on the issue relating to whether probable cause existed at the time of arrest.

(2) Violation of 12 F.S.M.C. 214(1) and 12 F.S.M.C. 218(6) and (7).

The Defendant claims that the Government violated 12 F.S.M.C. 214(1) when officers Aldens and Penias did not inform the Defendant of his rights at the time of his arrest.^[7] However, the affidavits of both officers state that the Defendant Isaac was given his rights after the Defendant stated that he knew why they were there, turned over some of the alleged stolen items, and was then arrested. Affs. of Aldens and of Penias at 2.

There is no set procedure that must be followed to comply with the requirement that 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. The notice is sufficient when it is such as to inform a reasonable man of the authority and purpose of the one making the arrest and the reason thereof. Circumstances, without express words, may afford sufficient notice. FSM v. Suzuki, 17 FSM R. 114, 117 (Chk. 2010) (citing Loch, 1 FSM R. 566, 569 (App. 1984) and In re Kiser, 158 N.W.2d 596, 602 (S.D. 1968)).

The Court, after observing the demeanor of the officers during the hearing, finds their testimony credible and consistent with the sworn affidavits. The affidavits, oral testimony, along with the officers’ years of experience, support the fact that the officers advised the Defendant of his rights after his arrest.^[8] Further, there is no dispute that the rights were given in the Pohnpeian language. Therefore, no violation of Defendant’s rights under 12 F.S.M.C. 214(1) occurred.

The Defendant Isaac further argues that the Government violated his rights under 12 F.S.M.C. 218(6) and (7).^[9] Under 12 F.S.M.C. 218(6), the Government is required to inform the Defendant of his rights before questioning if the Defendant is in custody. 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. FSM v. Louis, 15 FSM R. 348, 352 (Pon. 2007); FSM v. Edward, 3 FSM R. 224, 232 (Pon. 1987).

The Defendant Isaac was not arrested until after he produced the allegedly stolen items, at which point the officers clearly had probable cause, arrested the Defendant, and the Defendant was read his rights. The question posed "Do you know why we are here?" does not constitute an interrogation of the Defendant’s involvement in the crime. Rather, it is an inquiry directed towards the Defendant, as to whether or not he knew why the police were at his residence, which is the literal and plain meaning of the question. Isaac was not confined or arrested when asked the aforementioned question.

The question could have solicited various responses, including a "No" or a silent reply. The Court construes the question as an inquiry, rather than an interrogation. In the case of FSM v. Cheida, 7 FSM R. 633, 640 (Chk. 1996), the defendant Cheida moved to suppress certain affidavits, statements, and testimony the defendant gave at, or prepared in anticipation of, the court’s civil contempt hearings. The defendant Cheida moved to suppress this evidence, arguing that it should be inadmissible in the pending criminal contempt proceeding. In addressing this argument, the court stated:

Specifically, [the d]efendant complained[ed] that although [he was aware of] a possible criminal contempt action against him, at no time during the [civil contempt] hearings was he ever informed of his right to counsel or his right against self-incrimination. His presence was required at the civil contempt hearings, and he was required to answer questions under oath, yet he was never advised of his rights as a criminal defendant.

Cheida, 7 FSM R. at 639. That court reasoned that "the fact that an investigation has focused on a suspect does not trigger the need for warnings in a non-custodial setting, and that . . . situation [is] not comparable to that of a suspect who is physically restrained and ‘painfully aware that he literally cannot escape a persistent custodial interrogator." Id. at 640. The court denied the defendant’s motion to suppress and held the following:

[The] defendant’s oral testimony at the . . . civil contempt hearing is admissible in this criminal action. Mr. Cheida was not "interrogated" in a custodial setting at the . . . civil contempt hearings; he was free to leave and did following each hearing. . . . Finally, the Court was not required to warn Mr. Cheida of his right to counsel before he gave testimony in the civil contempt proceedings.

It is well settled that the statutory and constitutional right to be advised of one’s rights are owing to "one arrested," 12 F.S.M.C. 218(6) and to "any person arrested." 12 F.S.M.C. 218(7). "Arrest" is defined as "placing any person under any form of detention by legal authority." 12 F.S.M.C. 101(1). Based upon the evidence before the Court, the Defendant Isaac was not under arrest at the time he answered the officers question and voluntarily turned over the alleged stolen items. Accordingly, the Defendant’s arguments that the Government violated his rights under 12 F.S.M.C. 218 (6) and (7) are not persuasive and rejected.

(3) Violation of FSM Const. art. IV, § 3.

Finally, the Defendant Isaac argues that his due process and equal protection rights were violated when he was beaten by police officers at the National Police office on March 18, 2017, pursuant to FSM Constitution article IV, § 3. National police officers Aldens and Penias were not implicated in this act by the Defendant. The Government argues that the Defendant was never assaulted, because officers Aldens and Penias were the only officers who came into contact with Isaac at the National Police office during that period. Gov’t’s Opp’n at 6. The Government further claims that based on a policy of the Pohnpei State jail, that no injured or sick person would be taken into custody, and because Isaac was taken into custody, he was not injured when he was brought to the jail from the National Police office. Gov’t’s Opp’n at 6-7.

The FSM Constitution provides that equal protection under the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language or social status. This provision is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination. Youp v. Pingelap, 9 FSM R. 215, 217 (Pon. 1999); Samuel v. Pryor, 5 FSM R. 91, 106 (Pon. 1991).

Here, the Defendant does not argue or submit evidence to show that he is being discriminated upon as a member of a protected class, or that he is being treated differently from similarly situated individuals, as indicated above in the Youp case. Therefore, Isaac’s equal protection claim is unsupported.

Also, insufficient evidence was submitted to sustain Isaac’s due process claim. A person commits an offense if he willfully, whether or not acting under color of law, deprives another of, or injures, oppresses, threatens, or intimidates another in the free exercise or enjoyment of any right, privilege, or immunity secured to him by the FSM Constitution or laws and a private cause of action is provided for any such violation. 11 F.S.M.C. 701(1). See Hauk v. Emilio, 15 FSM R. 476, 479 (Chk. 2008).

Besides officers Aldens and Penias, no other officers were summoned to testify. The Defendant’s alleged assailant(s) were never identified. The Defendant could have obtained a log, through discovery, as to which police officers were on duty on that day, and issued subpoenas to confront them during the hearing. No such action was taken. Nor was any hospital report or report from the jail regarding his injuries, ever produced. Therefore, the Defendant’s claim for due process violation is unsubstantiated and uncorroborated by any other evidence except the testimony of the Defendant, and therefore is HEREBY DENIED.

III. CONCLUSION

Accordingly, the Defendant Isaac’s Motion to Suppress and Dismiss Case in its Entirety is HEREBY DENIED. The parties are ordered to confer and submit three (3) recommended trial dates within ten (10) days of being served with this Order. The Court will be unavailable from November 11 to 20, 2017, from November 27 to December 2, 2017, and from December 8, 2017 to January 5, 2018.

* * * *

---

^[1] The Defendant’s prints were in the finger print registry at the FSM National Police Office, as part of a previous investigation.

^[2] The affidavit of Kasner Aldens states that the Defendant replied "Yes" when asked if he knew why the police were there.
^[3] 12 F.S.M.C. 202: "No arrest of any person shall be made without first obtaining a warrant therefor, except in the cases authorized in this chapter or as otherwise provided by law."

12 F.S.M.C. 211: Arrest without a warrant is authorized in the following situations:

(1) Where a breach of the peace or other criminal offense has been committed, and the offender shall endeavor to escape, he may be arrested by virtue of an oral order of any official authorized to issue a warrant, or without such order if no such official be present.

(2) Anyone in the act of committing a criminal offense may be arrested by any person present, without a warrant.

(3) When a criminal offense has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it, such policeman may arrest the person without a warrant.

(4) Policemen, even in cases where it is not certain that a criminal offense has been committed, may, without a warrant, arrest and detain for examination, persons who may be found under such circumstances as justify a reasonable suspicion that they have committed or intend to commit a felony.

^[4] 12 F.S.M.C. 203: The following officials are authorized to issue a warrant of arrest: (1) any court; (2) any judge; (3) the clerk of courts for a district subject to such limitations as the Chief Justice of the High Court may impose; (4) any other person authorized in writing by the High Commissioner and a certified copy of whose authorization is filed with the clerk of courts for the district in which he acts.

^[5] Reasonable suspicion is defined as "A particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity." BLACK’S LAW DICTIONARY 584 (2d pkt. ed. 2001).

^[6] 12 F.S.M.C. 211(3): "Arrest without a warrant is authorized in the following situations: . . . (3) W crimoffl offense hase has been committed, and a policeman has reasonable ground to believe that the person to be arrested has committed it, such policeman may t theon without a warrant."

^[7] 12 F.S.M.C. 214(1): 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. (2) A policeman making an arrest by virtue of a warrant need not have the warrant in his possession at the time of the arrest, but, after the arrest, the person arrested may request to see the warrant, and that shall be shown to him as soon as possible.

^[8] Testimony of the officers show that Aldens and Penias have 5 and 10 years of law enforcement experience, respectively.
^[9] 12 F.S.M.C. 218(6): "[F]urther, it shall be unlawful for those having custody of one arrested, before questioning him about his participation in any crime, to fail to inform him of his rights and their obligations under subsections (1) through (5) of this section." 12 F.S.M.C. 218(7):

In addition, any person arrested shall be advised as follows: (a) that the individual has a right to remain silent, (b) that the police will, if the individual so requests, endeavor to call counsel to the place of detention and allow the individual to confer with counsel there before he is questioned further, and allow him to have counsel present while he is questioned by the police if he so desires; and, (c) that the services of the Public Defender, when in the vicinity or of his local representative, are available for these purposes without charge.