FSM SUPREME COURT TRIAL DIVISION
Cite as FSM v. Inek
10 FSM Intrm. 263 (Chk. 2001)
 
[10 FSM Intrm. 263]
 
FEDERATED STATES OF MICRONESIA,
Plaintiff,
 
vs.
 
ROCKY INEK,
Defendant.
 
CRIMINAL CASE NO. 2000-1513
 
MEMORANDUM OF DECISION
 
Richard H. Benson
Associate Justice
 
Decided: June 14, 2001
 
Entered: June 18, 2001
 
Modified: June 21, 2001
 
APPEARANCES:
 
For the Plaintiff:                        Catherine Leilani Wiehe, Esq.
                                                   Assistant Attorney General
                                                   FSM Department of Justice
                                                   P.O. Box PS-105
                                                   Palikir, Pohnpei FM 96941
 
For the Defendant:                  Michael A. Rowland, Esq.
                                                   FSM Public Defender
                                                   P.O. Box 754
                                                   Weno, Chuuk FM 96942
 
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HEADNOTES
 
Search and Seizure
     The protection in article IV, section 5 of the FSM Constitution against unreasonable search and seizure is based upon the comparable provision in the U.S. Constitution's fourth amendment. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001).
 
Constitutional Law ) Declaration of Rights; Constitutional Law ) Interpretation
     When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understand its meaning. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001).
 
Search and Seizure
     When no search or arrest warrant had been issued or sought and the defendant moves to
 
[10 FSM Intrm. 264]
 
suppress the evidence seized, although it is the defendant's suppression motion, it is the government's burden to prove that the searches were reasonable and therefore lawful under section 5 of article IV of the FSM Constitution. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001).
 
Search and Seizure
     Generally, whatever evidence is obtained pursuant to an unlawful arrest may be suppressed. One exception to the general rule is when the government obtains the evidence based on an independent source. If knowledge of such facts is gained from an independent source they may be proved like any others. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001).
 
Search and Seizure
     Exclusion of evidence obtained as a result of a violation of one's constitutional rights has no applicability to evidence obtained by the prosecution from sources factually unrelated to violations of a defendant's rights. FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001).
 
Search and Seizure
     Society's interest in deterring unlawful police conduct and the public interest in having factfinders receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001).
 
Search and Seizure
     When the police received information that the defendant was carrying a handgun from a known informant with whom they knew the defendant had lived for three years while he was in Nema, and when their conduct of the ensuing search was based on that and not on the prior unlawful arrest, that independent tip makes the search reasonable because the information given the police while the defendant was detained was a source independent from the unlawful arrest. FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001).
 
Search and Seizure
     Once the police have a reasonable suspicion that a person may be armed and dangerous they may do a patdown search of or frisk that person for weapons in order to protect themselves and others from possible danger. FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001).
 
Search and Seizure ; Search and Seizure ) Probable Cause
     When the police received the information from a known independent source that a person was carrying a handgun, the police not only had a reasonable suspicion that he was armed and carrying a handgun, they also had probable cause to believe that he was, and it was constitutionally permissible for the police to conduct a patdown search of or to frisk him for weapons. Such a warrantless search is reasonable. FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001).
 
Search and Seizure ) Probable Cause
     Probable cause is a higher standard than reasonable suspicion. FSM v. Inek, 10 FSM Intrm. 263, 266 (Chk. 2001).
 
 
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[10 FSM Intrm. 265]
 
COURT'S OPINION
 
RICHARD H. BENSON, Associate Justice:

     This case came before the court on the defendant's Motion to Suppress Arrest and to Suppress Evidence, filed April 25, 2001 along with a supporting memorandum. Following the filing of an opposition, a reply and a surreply, the motion was submitted for decision on June 4, 2001. The motion was denied by order of June 14, 2001. This memorandum sets forth the reasoning for that denial.

     The defendant, Rocky Inek, sought the suppression of a handgun which was seized while he was under police control. He contended that his arrest was unlawful, and therefore the search of his person violated the Constitution's prohibition against unreasonable searches. FSM Const. art. IV,  5. The government, assuming the arrest was unlawful, contended that when the police officer was told that Inek was carrying a handgun it was an act independent of the unlawful arrest and the search was thus reasonable.

     This case arose on Nema. The mother of an 18-year-old woman refused to permit her daughter to marry Inek. The couple ran away. A search ensued, and they were found in the jungle. They were handcuffed together, and brought to the woman's father. He told the police to take them away from his residence. They were then taken to the Nema Municipal Building. The father, then outside the building, told the police that Inek was carrying a handgun. Based on that, the police patted Inek down and found the handgun. He was then placed in a separate room in the building. These events all happened on June 28, 2000.

     The issue is whether the search was unreasonable. The protection in article IV, section 5 of the FSM Constitution against unreasonable search and seizure is based upon the comparable provision in the U.S. Constitution's fourth amendment. FSM v. Rodriquez, 3 FSM Intrm. 385, 386 (Pon. 1988); Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985). When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, United States authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000); Ting Hong Oceanic Enterprises v. FSM, 7 FSM Intrm. 471, 477 n.8 (App. 1996); Alaphonso v. FSM, 1 FSM Intrm. 209, 214-15 (App. 1982).

     When no search or arrest warrant had been issued or sought and the defendant moves to suppress the evidence seized, although it is the defendant's suppression motion, it is the government's burden to prove that the searches were reasonable and therefore lawful under section 5 of article IV of the FSM Constitution. FSM v. Joseph, 9 FSM Intrm. 66, 69 (Chk. 1999). The government was correct in conceding the arrest was unlawful. No charge was ever made. The use of the police of such terms as "detained" and "held" does not change the nature of what occurred. Clearly Inek was not free to leave (which constitutes an arrest or seizure), and was being held without any probable cause.

     Generally, whatever evidence is obtained pursuant to an unlawful arrest may be suppressed. Joseph, 9 FSM Intrm. at 69; FSM v. Santa, 8 FSM Intrm. 266, 268 (Chk. 1998); FSM v. Tipen, 1 FSM Intrm. 79, 92 (Pon. 1982). There is, however, no indication that the police conducted, or intended to conduct, a search incident to the arrest, or an inventory search of Inek prior to detaining him at the Nema Municipal Building.

     One exception to the general rule is when the government obtains the evidence based on an independent source. Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 453-54 (1963). "If knowledge of [such facts] is gained from an independent source they may be proved like any others . . . ." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct.

[10 FSM Intrm. 266]

182, 183, 64 L. Ed. 319, 321 (1920). Exclusion of evidence obtained as a result of a violation of one's constitutional rights "has no applicability to evidence obtained by the prosecution from sources factually unrelated to violations of a defendant's rights." McCormick on Evidence  176, at 499 (Edward W. Cleary ed., 3d ed. lawyer's ed. 1984). Historical exceptions to the warrant requirement under the United States Constitution are appropriate for adoption in the Federated States of Micronesia for what is reasonable within the meaning of article IV, section 5's prohibition against unreasonable search and seizure. See Ishizawa, 2 FSM Intrm. at 74.

"[T]he interest of society in deterring unlawful police conduct and the public interest in having [factfinders] receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been if no police error or misconduct had occurred. When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation."

Murray v. United States , 487 U.S. 533, 537, 108 S. Ct. 2529, 2533, 101 L. Ed. 2d 472, 480 (1988) (quoting Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 2509, 104 L. Ed. 2d 377, 387 (1984) (footnote and citations omitted)) (emphasis in original).

     When the police received information from a known informant with whom they knew Inek had lived for three years while he was in Nema, their conduct of the ensuing search was based on that, not on the arrest. The exact question presented was whether that independent tip makes the search reasonable. The court concluded that it does because the information given the police while Inek was detained was such an independent source. The search was thus not conducted incident to an unlawful arrest. It was conducted pursuant to information derived from an independent source ) the informant's tip that Inek was carrying a handgun.

     Once the police have a reasonable suspicion that a person may be armed and dangerous they may do a patdown search of or frisk the person for weapons in order to protect themselves and others from possible danger. Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 910-11 (1968). In this case, when the police received this information from a known independent source, the police not only had a reasonable suspicion that Inek was armed and carrying a handgun, they also had probable cause to believe that he was. Probable cause is a higher standard than reasonable suspicion. Under the exigent circumstances present and to protect the police and others from possible injury, it was constitutionally permissible for the police to conduct the patdown search of or to frisk Inek for weapons. The warrantless search was thus reasonable. It resulted in the discovery of the handgun that Inek wants suppressed.

     The motion was accordingly denied. Arraignment of the defendant, to be immediately followed by trial in this matter is hereby set for July 16, 2001, at 9:00 a.m.

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