1 MILR (Rev.) 74

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CRIM. NO. 86-03
(High Ct. Crim. No. 1986-189)

REPUBLIC OF THE MARSHALL ISLANDS,
Respondent,

-v-

RALPH H. WALTZ,
Appellant,

and

S. Ct. CRIM. NO. 86-02
(High Ct. Crim. No. 1986-191)

REPUBLIC OF THE MARSHALL ISLANDS,
Respondent,

-v-

TENSON MOLIK,
Appellant.

APPEAL FROM THE HIGH COURT

MARCH 2, 1987

BURNETT, C.J.
LANHAM, A.J., and GUNATILAKA, A.J. pro tem (sitting by designation)

SUMMARY:

The Supreme Court set aside findings of guilt and sentences for traffic offenses ruling that the arrests by Local Government Police without warrants were unauthorized and unlawful and that evidence obtained through these unlawful arrests was inadmissible.

DIGEST:

1. COMMON LAW – In General: The Supreme Court is obliged to follow common law in the absence of any provision in the Republic of the Marshall Islands Constitution, or in any custom or traditional practices of the Marshallese people or act of the Nitijela to the contrary (1 TTC § 103).

2. CRIMINAL LAW AND PROCEDURE – Arrests – Without Warrants: Arrests without warrants in felony cases were justified at common law on the theory that dangerous criminals and persons charged with heinous offenses should be incarcerated with all possible haste in the interests of public safety. Whereas the necessity for prompt on the spot action in suppressing and preventing disturbances of the public peace was the factor which justified arrest without warrant in misdemeanor cases involving breaches of the peace.

3. CRIMINAL LAW AND PROCEDURE – Same – Same: The rule that a private person may, without a warrant, arrest only for a felony committed, or about to be committed or renewed, in his presence, or for a misdemeanor involving a breach of the peace committed, or about to be committed or renewed, in his presence is the rule we adopt here which is in accord with the overwhelming weight of authority.

4. CONSTITUTIONAL LAW – Unreasonable Search and Seizure – Exclusion of Evidence: Since an unlawful arrest is a violation of Article II, Section 3(1) and (2) of the Republic of the Marshall Islands Constitution, all evidence obtained through that arrest is inadmissible (Art. II, Sec. 3(5), Republic of the Marshall Islands Constitution).

OPINION OF THE COURT BY BURNETT, C.J.

Appellant Ralph H. Waltz was arrested1 on June 4, 1986, for failure to yield the Right of Way, a moving vehicle violation of Section 35, P.L. 1986-5, a Republic of the Marshall Islands National (or Central) government law.

Appellant Tenson Molik was arrested1 on June 7, 1986, for Unsafe Passing in violation of Section 33, P. L. 1986-5, which is also a Republic of the Marshall Islands National (or Central) – as distinguished from a local Majuro government – law.

Both of these arrests were effected by local Majuro government, and not National, police, and neither of the arresting officers had been deputized by the Central government's Police Chief to enforce central government law, as required by statute.

The defendants were tried and convicted of these offenses on January 25, 1986, and were fined $50.00 each. Defendants moved in the High Court to vacate the sentences on the ground that the arrests were unlawful, but were overruled, and have appealed.

The Defendant's appeals involve the construction of several statutes and the determination of the common law rule relating to arrests.

P.L. 1981-2, Sec. 51, confers upon local governments the power to appoint police officers, and to give them certain powers as such, but it also contains this specific limitation on those powers:

but unless deputized by the Chief of Police for the purpose no peace officer may enforce any Central Government law ....

The officers who made the arrests complained of were not deputized. The plain language of this statute makes it clear that the arresting local officers in this case had no power as police officers to enforce any Central government law, including those which the Defendants are charged with violating, so if the arrests are to be sustained at all, it must be under some other legal authority.

It is suggested that such authority may exist in that such local officers still retain the same rights and powers to make arrests as do private citizens, and that under the provisions of 12 TTC Section 61 the local policemen, as do private citizens, have that power.

12 TTC § 61 reads in pertinent part:

Sec. 61. Authority to arrest without warrant. Arrest without a warrant is authorized in the following situations:

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

While we notice that the chapter of the Trust Territory Code entitled "Crimes and Punishment" (Chapter 11) does not include any traffic offenses, and Sec. 61 of Title 2 had reference to these Title 11 Crimes, and not to traffic regulation violations, (Traffic offenses being referred to in Chapter 83 as "Traffic Regulations"), we do not rest our decision solely on that point. Rather we also construe Section 61 as authorizing private citizens to make arrests only for felonies and misdemeanors involving breaches of the peace which are committed in their presence, and not to arrests for all misdemeanors and violation of ordinances. To hold otherwise would lead to public disorder and would not further the public peace.

[1] Our holding is in accord with the greater weight of judicial authority based upon the common law, which we are obliged to follow in the absence of any provision in the Republic of the Marshall Islands Constitution, or in any custom or traditional practices of the Marshallese people or act of the Nitijela to the contrary. (1 TTC § 103).

The ancient common law rights, commencing as far back as Magna Charta, have always held dear the general rule that ordinarily arrests should not be made without the sanctity of a warrant.2 However, through the years some exceptions, based upon human experience, have been grudgingly allowed, as discussed in State v. Mobley, 240 N.C. 476, 83 S.E. 2nd. 100:

"Arrests without warrants in felony cases were justified at common law on the theory that dangerous criminals and persons charged with heinous offenses should be incarcerated with all possible haste in the interests of public safety. Whereas the necessity for prompt on the spot action in suppressing and preventing disturbances of the public peace was the factor which justified arrest without warrant in misdemeanor cases involving breaches of the peace."

[2] But the common law went no further, and neither do we. The United States Supreme Court has set forth the rule regarding misdemeanor arrests; we understand it to be, citing the English authorities contained in Halsbury's Laws of England, Vol. 9, part III, 612.

"In cases of misdemeanors, a peace officer, like a private person, has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of the peace is about to be committed or renewed in his presence. (Carroll v. United States, 267 U.S. 132, 157, 45, S. Ct. 280, 39 ALR 790). (To the same effect is the Restatement of Torts 2d, Sec. 119, p. 194 (C)).

[3] The rule that a private person may, without a warrant, arrest only for a felony committed, or about to be committed or renewed, in his presence, or for a misdemeanor involving a breach of the peace committed, or about to be committed or renewed, in his presence is the rule we adopt here which is in accord with the overwhelming weight of authority. (IV Wharton's Cr. Law and Proc., Sec. 1601-1603, pp. 256-261; 5 Am Jur 2d, Arrest § 34-35, pp 726-727; Graham v. State (Ca. 1915) 328, 330; State v. Mobley, supra; Carrol v. United States, supra. This is the more enlightened rule because it takes into consideration the immediate preservation of the public peace by authorizing arrests for those offenses which are the most heinous and disruptive of the public peace or human safety and yet at the same time leaves the other offenses to the usual more deliberate processes of arrest by the obtaining of a warrant from a judge or other authorized official. Of course, the Nitijela may, by act, authorize arrests by citizens for other misdemeanors under other circumstances which do not offend the constitution, but until it does the common law rule we here iterate controls.

Counsel for the government further argues to the court that Paragraph 2(1) of P. L. 1986- 5, eff. 3/6/86, which paragraph defines the word "Policemen" to include "a member of the Police Force of any Local Government Council," somehow authorized these arrests, or stops, by the local policemen in this case. We see nothing in this definition which does this, and see nothing in the act that affects the arrest limiting provisions of Sec. 51 of P.L. 1981-2, nor did counsel point out to us any language which has that effect.

[4] Neither of the two offenses for which the Defendants were arrested constitute a felony or breach of the peace, so we conclude that the arrests were unauthorized and unlawful. Since an unlawful arrest is a violation of Article II, Sec. 3(1) and (2) of the Republic of the Marshall Islands Constitution, all evidence obtained through that arrest is inadmissible (Art. II, Sec. 3(5), Republic of the Marshall Islands Constitution). We have no transcript by which to measure what evidence, if any, remains after eliminating the evidence obtained by the police as a result of the stop and arrest, but counsel impliedly presented the case to us on the assumption that if the arrests were unlawful the convictions would fall for lack of evidence. Ordinarily, that is the case, because the police can usually only identify the driver after the vehicle is stopped, and driver identification is essential to conviction.

For the foregoing reasons, the findings of guilty and sentences in these cases are set aside and the charges are ordered to be dismissed.

David M. Strauss, Chief Public Defender for Appellants
Dennis McPhillips, Assistant Attorney-General for Appellee

________

1 At the Supreme Court hearing of this case it was brought out that the Defendants were not fully arrested in the usual sense of the word, but rather that they were stopped and ticketed. While some jurisdictions call this an arrest, others say it is merely or "accosting" of the Defendants. However, since the statute's (P.L. 1981-2, Sec. 51) key words provide that local police officers may in no way "enforce" central government laws, the distinction between arrest and accost and ticket is legally insignificant.

2 Both arrests and searches without warrant used to be presumptively unlawful under the common law. Even today searches are still presumed to be unlawful if done without a warrant under both the Republic of the Marshall Islands law (Art. II, Sec. 3(2), Republic of the Marshall Islands Constitution) and the United States law (Stoner v. California, 376 US 483; U.S. v. Jeffers, 342 U. 3. 48, and Coolidge v. New Hamphshire, 403 U.S. 443), unless an exception to that law be shown. Also under Republic of the Marshall Islands law a seizure of a person is deemed to be unreasonable as a matter of law under certain circumstance. (Art. II, Sec. 3(3), Republic of the Marshall Islands Constitution).