In re application for Search Warrant for Residences(sic) of Anrak [2005] MHHC 9; Search Warrant Application 2005-003 (22 July 2005)

IN THE HIGH COURT OF THE
REPUBLIC OF THE MARSHALL ISLANDS

SEARCH WARRANT APPLICATION 2005-003

IN RE APPLICATION FOR SEARCH WARRANT
FOR RESIDENCES (SIC) OF RANNY ANRAK,
MAJURO ATOLL, MARSHALL ISLANDS

To: WHITLAM K. TOGAMAE, Assistant Attorney-General

ORDER DENYING APPLICATION FOR SEARCH WARRANT

On June 21, 2005, the Republic submitted to the Court an application for a search warrant in this matter. On June 22, 2005, the Court denied the application.

In relevant part, the Marshall Islands Constitution ("RMI Constitution") provides as follows: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (emphasis added)." RMI Const. Art. II, Section 3(1). The RMI Supreme Court has yet to rule on this "particularity" requirement of the search and seizure clause. However, Section 3(1) of the RMI's search and seizure clause is similar to that found in the United States ("US") Constitution. See U.S.C.A. Const. Amend. IV. In this respect, Article I, Section 1(3) of the RMI Constitution provides that in interpreting provisions of the Constitution, a court shall look to, without being bound by, court decisions of countries having constitutions similar in relevant respect. Accordingly, in the absence of RMI Supreme Court caselaw, this Court may look to relevant decisions of US courts in interpreting the "particularity" requirement of RMI's search and seizure clause. See RepMar v. Sakaio, 1 MILR (Rev.) 182, 184 (1989); Kabua v. Kabua, et al., 1 MILR (Rev.) 247, 251 (1991); In the Matter of P.L. No. 1995-118, 2 MILR 105, 109 (1997); and In the Matter of the 19th Nitijela Const. Reg. Ses., 2 MILR 134,140 (1999).

Under United States Supreme Court caselaw, the "particularity" requirement regarding items to be seized requires that the description leave nothing to the discretion of the officers executing the warrant. See Marron v. United States, [1927] USSC 192; 275 U.S. 192, 196 (1927). That is, "the warrant must be sufficiently definite so that the officer executing it can identify the property sought with reasonable certainty." See W. LaFave, Search and Seizure §4.6(a), p. 551 (3d ed. 1994), quoting State v. Muldowney, 60 N.J. 594, 292 A. 2d 26 (1972). Where the description requires the executing officers to interpret a statute or legal concept to determine which items may be seized, the "particularity" requirement is violated. See United States v Crozier, [1982] USCA9 668; 674 F.2d 1293, 1299 (9^th Cir. 1982); United States v. Cook, [2008] USCA5 314; 657 F.2d 730 (5^th Cir. 1981); and United States v. Washington, 782 F.2d 807, 819 (9^th Cir. 1986).

In the present case, the Republic requested a search warrant for the following: (a) real and personal property "being the proceeds of crime"; and (b) "cash, jewelries (sic), motor vehicle, electronic items ... and other properties (sic) the police has (sic) probable cause to believe the property is tainted property in relation to another serious offence (emphasis added)." This description would have required the arresting officers to interpret legal concepts in order to determine what real or personal property, if any, was the "proceeds of crime" or "tainted property." Giving such discretion to the executing officers is contrary to the intent of the framers of both the US Constitution and the RMI Constitution. See Commonwealth v. Rutkowski, 406 Mass. 673, 676 (1990) ("To describe general items like guns and jewelry as 'stolen' adds nothing instructive to a description in a warrant."). Moreover, it appears from the search warrant application that the Republic could have described the property sought with greater particularity.

The "particularity" requirement was inserted in the Forth Amendment to the US Constitution to avoid the general warrants (writs of assistance) of the colonial period. A valid warrant then must not only ensure that there is sufficient justification for the search, it also must limit the permissible bounds of the search - this, the requested warrant does not do.

For this reason, the application for search warrant was denied.

Date: July 22, 2005.

Carl B. Ingram
Chief Justice