CHUUK STATE SUPREME COURT TRIAL DIVISION

Cite as Chuuk v. Chosa, 16 FSM Intrm. 95 (Chk. S. Ct. Tr. 2008)

[16 FSM Intrm 95]

CSSC-CRIMINAL CASE NO. 143-2001

Hearing: August 28, 2008

Decided: September 4, 2008

APPEARANCES:

HEADNOTES

    In accordance with the Chuuk Constitution provision against unreasonable searches, seizures, and invasions of privacy, no warrant may be issued but upon probable cause, supported by affidavit, specifically describing the place to be searched and the persons or things to be seized. An individual suspected of a crime must be released from detention unless the government can establish probable cause to hold that individual. Chuuk v. Chosa, 16 FSM Intrm. 95, 97 (Chk. S. Ct. Tr. 2008).

    The standard for determining probable cause is whether 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. As a general rule, any evidence may be considered in determining whether reasonable suspicion or probable cause exists, and the

[16 FSM Intrm 96]

finding of probable cause may be based upon hearsay evidence in whole or in part. Chuuk v. Chosa, 16 FSM Intrm. 95, 97-98 (Chk. S. Ct. Tr. 2008).

    A probable cause determination must be made by a deliberate, impartial judicial officer. Often the determination of probable cause is made by a judicial officer upon the issuance of an arrest warrant, but when an arrest is not made pursuant to a warrant, an arrested person is entitled to a judicial determination as to whether there is probable cause to detain him. Chuuk v. Chosa, 16 FSM Intrm. 95, 98 (Chk. S. Ct. Tr. 2008).

    When informants are used to establish probable cause, the investigating officers should consider the underlying circumstances from which the informer drew his conclusion. Some of the underlying circumstances must show that the informant was reliable. When the court makes its determination as to whether probable cause was proven, it must regard the evidence from the vantage point of law enforcement officers acting on the scene, but must make its own independent determination as to whether, considering all the facts at hand, a prudent and cautious law enforcement officer, guided by reasonable training and experience, would consider it more likely than not that a violation has occurred. Chuuk v. Chosa, 16 FSM Intrm. 95, 98 (Chk. S. Ct. Tr. 2008).

    Although the strict guidelines against the admission of hearsay evidence do not apply in a probable cause determination, a prosecutor may not rely solely on hearsay testimony when other, more competent testimony is available. The court may therefore discount unreliable hearsay or other evidence that is inherently untrustworthy or suspicious, unless additional measures are taken to ensure reliability or to explain those exigent circumstances that make it impossible to produce more reliable or competent evidence. A prosecutor’s own representations are not a substitute for competent, reliable evidence in the form of first-hand testimony or appropriately detailed affidavits from investigating officers who obtained first-hand accounts. Chuuk v. Chosa, 16 FSM Intrm. 95, 98 (Chk. S. Ct. Tr. 2008).

    When the affiant’s belief that probable cause existed was based solely on affiant’s review of a police report, which presumably was prepared by an officer who investigated the crime scene; when the affiant does not state whether the affiant spoke with the reporting officer, or even identify the reporting officer; when there is no explanation of how the information contained in the police report was obtained; when there is no evidence that the affiant or the unknown reporting officer interviewed witnesses or investigated the incident and there is no way to determine the extent to which the report itself was based on hearsay or any assurance that it was based on the investigating officer’s reasonable belief rather than on pure speculation, then the "affidavit of probable cause" is deficient because the affidavit suffers from multiple layers of hearsay, and multiple levels of hearsay become less reliable as the number of levels of hearsay increase and because the affidavit fails to adequately identify the information’s source or sources and may be based on unattributed hearsay statements of one or more declarants. As the number of included hearsay statements increases, the guarantees of reliability that justify admission become attenuated. Hearsay that is otherwise admissible may be excluded where it primarily reiterates statements of other, unidentified persons. Chuuk v. Chosa, 16 FSM Intrm. 95, 98-99 (Chk. S. Ct. Tr. 2008).

    A counsel’s affidavit used to establish probable cause places counsel in the position of being called as a witness in the case and detracts from the evidence’s reliability because it merely adds another layer of hearsay. In that instance, counsel would be in apparent violation of Model Rule of

[16 FSM Intrm 97]

    Professional Conduct 3.7 (1983), which, subject to limited exceptions, prohibits counsel from being an advocate at a trial in which counsel is likely to be called as a witness. Chuuk v. Chosa, 16 FSM Intrm. 95, 99 (Chk. S. Ct. Tr. 2008).

    Although, there may be cases when an affidavit containing multiple layers of hearsay is deemed sufficiently reliable to prove probable cause, when the affidavit fails even a minimal level of reliability that might be justified by exigent circumstances, which, in any case, were not present, the affidavit filed with the information was not reliable enough to prove probable cause and the defendant’s motion to suppress the affidavit of probable cause and for dismissal was therefore granted, and the case was dismissed. Chuuk v. Chosa, 16 FSM Intrm. 95, 99 (Chk. S. Ct. Tr. 2008).

* * * *

COURT’S OPINION

CAMILLO NOKET, Chief Justice:

Background

1. On August 22, 2001, the Government filed its information alleging one count of assault and battery each against BJ Chosa and Pasinio Rudolph and a count of assault with a dangerous weapon against defendant Rudolph. The case against Defendant BJ Chosa was previously dismissed.

2. The affidavit attached to the information was prepared by the prosecuting counsel. In the affidavit, counsel attests that based on counsel’s review of a police report identified as Police Report No. H-135 there was probable cause to believe the defendants committed the acts alleged. From the affidavit, there is no indication who prepared Police Report No. H-135 or whether the person who prepared it performed an investigation of the incidents alleged.

3. On August 18, 2008, defendant Rudolph filed his motion for suppression of the affidavit of probable cause and for dismissal of the case. The Government opposed the motion by motion filed on August 21, 2008.

4. On August 28, 2008, the court held a hearing on the motion. Daieko Robert appeared for the prosecution and Kent Cheipot, under the supervision of William Minkley, appeared for defendant Rudolph. After oral argument, the court granted the motion and dismissed the case. The reasons are memorialized here.

Legal Authority

    The Chuuk Constitution provides for the right of the people against unreasonable searches, seizures, and invasions of privacy. See Chk. Const. art. III, § 3. According to that section, no warrant may be issued but upon probable cause, supported by affidavit, specifically describing the place to be searched and the persons or things to be seized. Id. In accordance with these constitutional protections, an individual suspected of a crime must be released from detention unless the Government can establish probable cause to hold that individual. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (Pon. 1985).

    The standard for determining probable cause is whether there is evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation

[16 FSM Intrm 98]

of the law has occurred and that the accused committed that violation. FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002); FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588-89 (Pon. 1994). As a general rule, any evidence may be considered in determining whether reasonable suspicion or probable cause exists. Kosrae v. Tosie, 12 FSM Intrm. 296, 299 (Kos. S. Ct. Tr. 2004). The finding of probable cause may be based upon hearsay evidence in whole or in part. Chk. Crim. R. 4(b); FSM v. W ainit, 10 FSM Intrm. 618, 621 (Chk. 2002).

    In this case, as in many criminal cases where an accused is arrested without a warrant, the demonstration of probable cause was made in the form of an "affidavit of probable cause." Usually the affidavit is prepared by one or more investigating officers and is filed with the information. The court has previously held that the use of such affidavits does not violate a criminal defendant’s right to confrontation, because the defendant will have the opportunity to confront the affiants if they are called as witnesses at trial. Wainit, 10 FSM Intrm. at 621.

    A probable cause determination must be made by a deliberate, impartial judicial officer. Wainit, 10 FSM Intrm. at 622; Zhong Yuan Yu No. 621, 6 FSM Intrm. at 588-89. Often the determination of probable cause is made by a judicial officer upon the issuance of an arrest warrant, but where an arrest is not made pursuant to a warrant an arrested person is entitled to a judicial determination as to whether there is probable cause to detain him. Zhong Yuan Yu No. 621, 6 FSM Intrm. at 589.

    In cases where informants are used, the investigating officers should consider the underlying circumstances from which the informer drew his conclusion. Some of the underlying circumstances must show that the informant was reliable. Tosie, 12 FSM Intrm. at 299. When the court makes its determination as to whether probable cause was proven, it must regard the evidence from the vantage point of law enforcement officers acting on the scene but must make its own independent determination as to whether, considering all the facts at hand, a prudent and cautious law enforcement officer, guided by reasonable training and experience, would consider it more likely than not that a violation has occurred. Ishizawa, 2 FSM Intrm. at 77.

    Although the strict guidelines against the admission of hearsay evidence do not apply in a probable cause determination, a prosecutor may not rely solely on hearsay testimony when other, more competent testimony is available. FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. 300, 304 (Kos. 1995). The court may therefore discount unreliable hearsay or other evidence that is inherently untrustworthy or suspicious, unless additional measures are taken to ensure reliability or to explain those exigent circumstances that make it impossible to produce more reliable or competent evidence. Id. at 304-05. A prosecutor’s own representations are not a substitute for competent, reliable evidence in the form of first-hand testimony or appropriately detailed affidavits from investigating officers who obtained first-hand accounts. Yue Yuan Yu No. 708, 7 FSM Intrm. at 305.

Legal Analysis

    Here, the affiant’s belief that probable cause existed was based solely on affiant’s review of a police report, which presumably was prepared by an officer who investigated the crime scene. The affiant does not state whether the affiant spoke with the reporting officer, or even identify the reporting officer. There is no explanation of how the information contained in the police report was obtained. There is no evidence that the affiant or the unknown reporting officer interviewed witnesses or investigated the incident. In other words, there is no way to determine the extent to which the report itself was based on hearsay or any assurance that it was based on the reasonable belief of the investigating officer rather than on pure speculation.

    As a result, the "affidavit of probable cause" is deficient in several ways. First, the affidavit

[16 FSM Intrm 99]

suffers from multiple layers of hearsay. Multiple levels of hearsay become less reliable as the number of levels of hearsay increase. Id. at 304 (citing McCormick's Handbook of the Law of Evidence § 324.3, at 911 (3d ed. 1984). The affidavit also fails to adequately identify the source or sources of the information. Because it does not specify who the informants were, the affidavit may be based on unattributed hearsay statements of one or more declarants. As the number of included hearsay statements increases, the guarantees of reliability that justify admission become attenuated. Id. at 304-05 (citing 11 James W. Moore et al., Moore's Federal Practice ¶ 805.2, at VII-297-98 (1976)). There was no explanation for why an investigating officer did not prepare an affidavit. Even if the prosecution had provided an explanation as to why an investigating officer was unable to prepare the affidavit, here the affiant reiterated the testimony of others without identifying those persons. Hearsay that is otherwise admissible may be excluded where it primarily reiterates statements of other, unidentified persons. FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. at 304.

    Counsel’s affidavit also places counsel in the position of being called as a witness in the case. In that instance, counsel would be in apparent violation of Rule 3.7 of the Model Rules of Professional Conduct (1983), which prohibits counsel from being an advocate at trial in which counsel is likely to be called as a witness, subject to limited exceptions. Even the appearance of a potential ethical violation is not justified by counsel’s testimony in this case, which adds nothing to the reliability of the evidence. Rather, counsel’s testimony detracts from the reliability of the evidence because it merely adds another layer of hearsay. FSM v. Yue Yuan Yu No. 708, 7 FSM Intrm. at 304.

    There may be cases where an affidavit containing multiple layers of hearsay is deemed sufficiently reliable to prove probable cause. Here, however, the affidavit fails even a minimal level of reliability that might be justified by exigent circumstances, which, in any case, were not present.

Conclusion

    The court did not find the affidavit filed with the information reliable enough to prove probable cause. Defendant Rudolph’s motion to suppress the affidavit of probable cause and for dismissal was therefore granted, and the case was dismissed.

* * * *