FSM SUPREME COURT TRIAL DIVISION

Cite as FSM v. Kansou, 14 FSM Intrm. 136 (Chk. 2006)

[14 FSM Intrm. 136]

FEDERATED STATES OF MICRONESIA,

Plaintiff,

vs.

ROOSEVELT D. KANSOU, SIMEON R. INNOCENTI,
JOHN PETEWON, JAMES FRITZ, MEMORINA
KANSOU, JOHN ENGICHY a/k/a AISER JOHN
ENGICHY, ROSEMARY ENGICHY a/k/a ROSEMARY
NAKAYAMA, FRANK DARRA, FRANK CHOLYMAY,
EM-R, RIBC AGGREGATES INC., MARKET
WHOLESALE, K & I ENTERPRISES, INC., and SOLID
BUILDERS AND TRADING SERVICES,

Defendants.

CRIMINAL CASE NO. 2003-1508

ORDER

Richard H. Benson
Specially Assigned Justice

Hearing: January 4, 2006
Decided: March 4, 2006

APPEARANCES:

For the Plaintiff:               Matthew L. Olmsted, Esq. (briefed)
                                        Keith J. Peterson, Esq. (argued)
                                        Assistant Attorneys General
                                        FSM Department of Justice
                                        P.O. Box PS-105
                                        Palikir, Pohnpei   FM   96941

For the Defendant:          Scott Garvey, Esq.
        (R. Kansou)             P.O. Box 114
                                        Kolonia, Pohnpei   FM   96941

For the Defendant:          Joey J. Sapelalut, Esq.
               (Darra)             Office of the Public Defender
                                        P.O. Box PS-174
                                        Palikir, Pohnpei   FM   96941

*    *    *    *

[14 FSM Intrm. 137]

HEADNOTES

Search and Seizure

When all warrants, monitoring orders, and subpoenas duces tecum were served or executed on either the Bank of Guam or the Bank of the Federated States of Micronesia, a defendant's motion to suppress those warrants, monitoring orders, and subpoenas duces tecum and any evidence seized pursuant to those search warrants as the fruits of illegal searches will be denied since the defendant lacks standing to challenge the searches of those bank records because he lacks an expectation of privacy therein. FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006).

Constitutional Law – Interpretation; Search and Seizure

The protection in article IV, section 5 of the FSM Constitution against unreasonable search and seizure is based upon and drawn from the comparable provision in the U.S. Constitutionís fourth amendment. The addition of the phrase "invasion of privacy" to the FSM version was not intended to expand the search and seizure protections in the FSM any further. It was intended to more adequately express its meaning. FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006).

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, U.S. authority may be consulted to understand its meaning. FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006).

Search and Seizure

A search warrant should be issued in the state where the property sought to be seized was alleged to be located. FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006).

Statutes – Construction; Transition of Authority

Generally, when the word "district" appears in an FSM Code provision carried over from the Trust Territory Code by virtue of the Constitution's Transition Clause, "state" will be read in its place. FSM v. Kansou, 14 FSM Intrm. 136, 138n.1 (Chk. 2006).

Search and Seizure

A return of the items seized pursuant to a search warrant must be made even if nothing is found or seized. FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006).

Search and Seizure

Evidence obtained as the result of violations of Title 12 is not admissible against an accused. FSM v. Kansou, 14 FSM Intrm. 136, 138 (Chk. 2006).

*    *    *    *

COURT'S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

On November 1, 2005, Defendant Roosevelt Kansou filed his Motion to Suppress; Defendant Roosevelt Kansou's Memorandum of Points and Authorities in Support of His Motion to Suppress. On December 19, 2005, Frank Darra filed his motion to join. On December 27, 2005, the government filed its response. Kansou's reply was filed January 3, 2006. The motion was heard on January 4, 2006.

Roosevelt Kansou asks that search warrants issued March 27, 2003 and April 8, 2003;

[14 FSM Intrm. 138]

monitoring orders issued April 17, July 15, and October 15, 2003; subpoenas duces tecum issued July 15, 2003 to the Bank of the FSM and to the Bank of Guam; and a search warrant for Roosevelt Kansou's residence issued July 22, 2003 all be suppressed and that any evidence seized pursuant to those search warrants be suppressed as the fruits of illegal searches.

All warrants, monitoring orders, and subpoenas duces tecum, other than the July 22, 2003 search warrant issued for Roosevelt Kansouís residence, were served or executed on either the Bank of Guam or the Bank of the Federated States of Micronesia. Kansou's motion as to those warrants, monitoring orders, and subpoenas duces tecum is denied. Kansou lacks standing to challenge the searches of those bank records because he lacks an expectation of privacy therein. See In re Legislative Subpoena, 7 FSM Intrm. 328, 334-35 (Chk. S. Ct. App. 1995) aff'g In re Legislative Subpoena, 7 FSM Intrm. 261 (Chk. S. Ct. Tr. 1995); United States v. Miller, 425 U.S. 435, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976).

The protection in article IV, section 5 of the FSM Constitution against unreasonable search and seizure is based upon and drawn from the comparable provision in the U.S. Constitution's fourth amendment. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001); FSM v. Rodriquez, 3 FSM Intrm. 385, 386 (Pon. 1988); Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 74 (Pon. 1985). The addition of the phrase "invasion of privacy" to the FSM version was not intended to expand the search and seizure protections in the FSM any further. It was intended to more adequately express its meaning. One commentator noted that many of the rights included in the Declaration of Rights were worded differently from the U.S. Constitution and the Trust Territory Bill of Rights chapter of the Trust Territory Code (1 TTC §§ 1-14) so that they would more aptly express the additional meanings that had accreted to those phrases (e.g. "freedom of expression" in the place of freedom of the press and freedom of speech). See Norman Meller, Constitutionalism in Micronesia 245, 257 n.30 (1985). When a provision of the FSM Declaration of Rights is patterned after a provision of the U.S. Constitution, U.S. authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000); FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999); Afituk v. FSM, 2 FSM Intrm. 260, 263 (Truk 1986); Tosie v. Tosie, 1 FSM Intrm. 149, 154 (Kos. 1982).

Kansou further contends that the July 22, 2003 search warrant of his residence was improperly issued because it was not issued in the state where the evidence was alleged to be, and that any evidence seized pursuant to that warrant must be suppressed. That warrant was issued in the State of Pohnpei for Kansou's residence on Weno, Chuuk. The government did not oppose this part of the motion.

The warrant should have been issued in the State of Chuuk because the property sought to be seized was alleged to be located there. 12 F.S.M.C. 305(1) ("Anyone desiring the issuance of a search warrant shall personally appear and make application therefor under oath, within the district [state1] where the property sought is alleged to be, before an official authorized to issue a warrant.") No return of the items seized was made. One must be made, 12 F.S.M.C. 307, even if nothing is found or seized. Evidence obtained as the result of violations of Title 12 is not admissible against an accused. 12 F.S.M.C. 220 ("no evidence obtained as a result of such violation [of Title 12] shall be admissible against the accused"). Thus the July 22, 2003 search warrant and any fruits of the search conducted pursuant to that warrant is ordered suppressed.

[14 FSM Intrm. 139]

Accordingly, defendant Roosevelt Kansou's motion to suppress is denied except for the July 22, 2003 search warrant issued for his residence, for which his motion is granted.

______________________________

Footnotes:

1 Generally, when the word "district" appears in an FSM Code provision carried over from the Trust Territory Code by virtue of the Constitution's Transition Clause, FSM Const. art. XV, – 1, "state" will be read in its place. Cf. FSM v. Oliver, 3 FSM Intrm. 469, 475 (Pon. 1988) (where functions different, district administrator should not always be read as state governor).

*    *    *    *