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HEADNOTES

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COURT'S OPINION

MARTIN G. YINUG, Chief Justice:

This case was tried on June 14, 2012. Plaintiff Eliory Alexander, Jackson Luhk, Jesse Hairens, defendant Lucas Carlos, Yoster Donre, and Selestino Barnabas testified. Per the parties' agreement and the court's order, the parties were to file written closing arguments and written responses to the other side's closing argument. The defendants submitted their closing argument in writing on June 21, 2012. Alexander submitted hers on July 6, 2012. The defendants, in a July 27, 2012 filing, waived their right to respond to Alexander's closing argument. On July 30, 2012, Alexander filed her reply to the defendants' closing argument. The case was then considered submitted to the court for its decision.

Based on the witnesses' testimony, the admitted evidence, and the parties' post-trial submissions on legal matters, the court makes the following

FINDINGS OF FACT.

On September 19, 2008, Eliory Alexander and Atele Carlos were engaged in an argument outside of the FSM Telecom Building in Kolonia Town, Pohnpei. Eliory Alexander slapped Atele Carlos once. Later that day, Atele Carlos, who was the wife of the then Pohnpei Director of Public Safety Lucas Carlos,¹ filed a complaint with the Pohnpei state police. Officer Selestino Barnabas took Atele Carlos's statement and prepared a police report. In his opinion, there was probable cause to arrest Alexander for assault and battery and disorderly conduct.

On the morning of September 20, 2008, the Pohnpei State Police shift supervisor showed Officers Jackson Luhk and Jesse Hairens the case file with a complaint and victim statement but no arrest warrant and told the officers to go and get Alexander. They left sometime by 10:00 a.m. and went to Alexander's house to arrest her.

When they arrived at Alexander's house, they did not see anyone. After waiting awhile, they entered the property and eventually located Alexander in her shower house where she was bathing. Alexander asked why they were there. The officers told Alexander that they were there to arrest her.

[18 FSM R. 397]

Officer Luhk told her that there was a complaint filed against her and there were witnesses but did not explain further. The shower house was a structure separate from the dwelling house. The police did not enter the shower house but waited for Alexander to finish and dress.

Officer Luhk may have informed her of one of her rights but he did not inform her of all of her rights. The officers took Alexander with them. (She had asked if she could follow them in her own vehicle but it was not allowed.) When they arrived at the police station, the police supervisor asked if this was "the lady," and the officers said, "Yes." He then told them to take her to the Pohnpei state jail.

The officers took Alexander directly to jail, arriving before noon. She was permitted to make phone calls to her family and other persons while there. The police did not interrogate her. Nor did they make any effort to bring her before a judicial officer. At 8:00 p.m., she was taken back to the police station where she signed an advice of rights form and was then released. Alexander asserts that she did not know what she was signing because it was not explained to her other than it was a document she had to sign in order to be released and that, since she did not have her glasses with her, she could not read it.

On September 24, 2008, an information was filed in the Pohnpei Supreme Court charging Alexander with assault and battery and disorderly conduct for the September 19, 2008 incident. The charges were disposed of without a conviction.

Based on these findings, the court makes the following

CONCLUSIONS OF LAW.

Generally, no arrest can "be made without first obtaining a warrant therefor" except when otherwise authorized by law. 62 Pon. C. § 2-102. A warrantless arrest may be made "[w]hen a criminal offense has been committed and a policeman has a reasonable ground to believe that the person to be arrested has committed it . . . ." 62 Pon. C. § 2-111(3). The police could thus lawfully arrest Alexander if they had a reasonable ground to believe that she had committed assault and battery. Based on Atele Carlos's complaint and the investigating officer's report, the police had a reasonable ground for that belief and could arrest Alexander without an arrest warrant.²

Under the common law rule in many jurisdictions with laws similar to the Pohnpei warrantless arrest statute, the police could arrest without a warrant persons who may have committed a felony but could not make a warrantless arrest for a misdemeanor unless it was committed in the arresting officer's presence. See United States v. Watson, 423 U.S. 411, 418-19, 96 S. Ct. 820, 825-26, 46 L. Ed. 2d 598, 606 (1976); 2 WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING, & ORIN S. KERR, CRIMINAL PROCEDURE § 3.5(a), at 201-02 (3d ed. 2007). But whether that rule would apply here does

[18 FSM R. 398]

not matter because one of the offenses that Alexander was arrested for was a felony. Under Pohnpei state law, a felony is defined as "a crime or offense that may be punishable by imprisonment for a period of more than one year. Every other crime is a misdemeanor." 61 Pon. C. § 1-103. Therefore, somewhat confusingly, both "felonious assault and battery," 61 Pon. C. § 5-133, and "assault and battery," 61 Pon. C. § 5-134, are felonies since they are punishable by a maximum term of imprisonment of ten years and two years respectively.³ Disorderly conduct is a misdemeanor since it carries a maximum of six months' imprisonment.

Alexander contends that her rights were violated because the police came onto her property to arrest her. The FSM Constitution guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated. . . ." FSM Const. art. IV, § 5. This protection "prohibits the police from making a warrantless and nonconsenual entry into a suspect's home in order to make a routine felony arrest." Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371, 1374-75, 63 L. Ed. 2d 639 644 (1980) (constitutional protection under U.S. Fourth Amendment).⁴

Merely entering a person's property is often not enough to violate a person's right to be secure in her house. For instance, if the police do not enter the home but wait for the occupant to emerge from the house before effecting an arrest, the right is not violated. E.g., United States v. Bustamente-Saenz, 894 F.2d 114, 118 (5th Cir. 1990).

Since Officers Luhk and Hairens did not have an arrest warrant, they would have violated Alexander's constitutional right if, when arresting her, they had entered her dwelling house or her shower house, since that was part of Alexander's home even though it was a separate structure.⁵ See Wakkuri v. United States, 67 F.2d 844, 845 (6th Cir. 1933) (bathhouse); see also Robinson v. United States, 165 F.2d 752, 754 (6th Cir. 1948 (smokehouse); 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.3(d) (4th ed. 2004). Officers Luhk and Hairens could have lawfully arrested Alexander if they had waited and arrested her outside her home on her way out, but they did not.

The officers told Alexander, while she was still in her shower house, that they were there to arrest her. Once the officers told her that that was what they were there for, she was not free to leave except in their custody. In other words, the police arrested her while she was in her shower house even though they were outside. "[I]t is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home." United States v. Johnson, 626 F.2d 753, 757 (9th Cir. 1980). See also United States v. Quaempts, 411 F.3d 1046, 1048 (9th Cir. 2004);

[18 FSM R. 399]

State v. Holeman, 693 P.2d 89, 90-91 (Wash. 1985). Since Alexander was arrested in an area protected by Section five of the Declaration of Rights and since the police did not have a warrant, her arrest was illegal. The police needed a warrant to arrest her where they did. They did not have one.

Alexander contends that her arrest was also illegal because when she was arrested (and even later) she was not informed of the cause and authority of her arrest and because she was not given her rights. The defendants contend that the only proper remedy for the failure to inform an arrestee of the cause and the authority for her arrest and the failure to inform an arrestee of her rights as an arrestee is through the suppression of any evidence obtained as a result and not a civil judgment. In this case, no evidence was acquired as the result of Alexander's arrest and detention.

In Berman v. Pohnpei, 16 FSM Intrm. 567, 576 (Pon. 2009), a plaintiff who was not told her full rights when arrested was awarded nominal damages of one dollar since there was no evidence obtained as a result. On appeal, Pohnpei claimed that a civil damages award was improper because the proper remedy was to suppress of any evidence obtained, but the appellate court refused to consider the issue since Pohnpei had not preserved the issue for appellate review as Pohnpei had not filed a cross-appeal. Berman v. Pohnpei, 17 FSM Intrm. 360, 372-73 (App. 2011) (appellee that did not cross-appeal cannot be granted any relief modifying, vacating, or reversing a trial court ruling in the appellant's favor).

In Warren v. Pohnpei State Department of Public Safety, 13 FSM Intrm. 483, 495 (Pon. 2005), the court ruled that an arrest was illegal because the police had not complied with 12 F.S.M.C. 214(1) [identical to 62 Pon. C. § 2-114(1)] and did not inform the arrestee of the cause of his arrest until he was taken to the police station. But in FSM v. Suzuki, 17 FSM Intrm. 114, 116, 118 (Chk. 2010), the court held that the failure to inform someone, who is about to be arrested without a warrant, of the authority and cause for the arrest did not invalidate that arrest, although as a matter of good police practice, the police should inform the person as soon as he or she is safely in police custody, which would usually be before the arrestee is transported to jail. In commenting on Warren, the Suzuki court concluded that

a more rigorous and precise analysis of the facts in that case should conclude that the arrest was legal as long as there was probable cause for an arrest [not decided by the Warren court] but that once the arrestee was safely in custody his continued detention may have been unlawful until he was informed of the cause of his arrest.

Suzuki, 17 FSM Intrm. at 117 (footnote omitted). The Suzuki court also noted that the Warren court did not apply the Loch appellate decision when it made its ruling (and that there were other firmer grounds to support the Warren result). Id. The Loch appellate court held that the cause and authority requirement had been met when the arresting officer told the arrestee that "he was going to take him 'to a place' because he was drinking" and the arrestee responded that the officer should arrest someone else. Loch v. FSM, 1 FSM Intrm. 566, 569 (App. 1984). Other civil cases applying the Loch analysis declined to impose civil liability on 12 F.S.M.C. 214(1) grounds. Annes v. Primo, 14 FSM Intrm. 196, 203 (Pon. 2006); Conrad v. Kolonia Town, 8 FSM Intrm. 183, 193 (Pon. 1997). And in Hauk v. Emilio, 15 FSM Intrm. 476, 479 (Chk. 2008), a plaintiff was awarded damages when he was physically injured and arrested by unknown police officers and then jailed for six hours before being released, all without ever being told the cause of his arrest.

Alexander was clearly told that she was being arrested, but she was not told the complaint's details or the cause for her arrest beyond that there was a complaint against her. That was not enough to tell her the complaint's substance. If Officer Luhk had said that it was for the incident the day before at Telecom or that it was because of her and Atele Carlos, either one would probably have been

[18 FSM R. 400]

enough, under the Loch standard, to comply with the cause and authority requirement, which was not met in Alexander's arrest. Nor was the requirement that she be informed of her rights met.

In this case, it appears that the police thought that the time that they were holding Alexander was getting close to unreasonable⁶ so they released her after she signed an advice of rights form that indicated that Alexander had been advised of her rights and understood them. That form, by itself, cannot retroactively validate the earlier failure to inform Alexander of her rights. Taken at face value, the advice of rights form that Alexander signed is, at best, evidence that she was informed of her rights and understood them at 8:00 p.m. on September 20, 2008 – about nine hours after her arrest and after eight hours in the Pohnpei jail. It cannot overcome the court's finding that Alexander was not advised of her rights earlier.

Regardless of whether civil liability can be imposed for failing to inform an arrestee of her rights or for failing to inform her of the cause and authority of her arrest, civil liability will be imposed since it was illegal to arrest Alexander without a warrant where she was arrested.

Since Alexander was illegally arrested and detained, thus entitling her to a civil judgment, the court must determine the

DEFENDANTS LIABLE.

No evidence was presented at trial that Lucas Carlos was personally involved in Alexander's arrest and jailing or that he directed its manner or timing. The court cannot presume that because his wife was the complainant that Lucas Carlos ordered or directed that Alexander be arrested and jailed. In the absence of evidence, an inference just as likely is that a zealous subordinate, believing it would curry favor with his superior, decided that a quick arrest and some jail time were in order. The court therefore cannot hold Lucas Carlos, in his personal capacity, liable to Eliory Alexander.

A suit for damages against someone in his official capacity is a claim against the entity or agency that employs that person. Herman v. Bisalen, 16 FSM Intrm. 293, 296 (Chk. 2009). Hence, a suit, such as this one, against the Director of Public Safety in his official capacity, see supra note 1, is a claim against the Pohnpei Department of Public Safety. But no evidence was presented that supports the liability of the Director of Public Safety in his official capacity either. Judgment will therefore be entered solely against the Pohnpei state government.

Since it is an essential element of any tort, a civil judgment for plaintiff Eliory Alexander must include

[18 FSM R. 401]

DAMAGES.

No evidence of special or particular damages was introduced at trial. The court can, however, rely on previous case law to assess damages for the wrongful arrest and detention. In Warren v. Pohnpei State Department of Public Safety, 13 FSM Intrm. 483, 500 (Pon. 2005), the court awarded the plaintiff $500 because he was subjected to an illegal arrest plus $10 an hour for the time he was wrongfully detained in Pohnpei state jail. Regardless of the number of grounds on which Alexander's arrest was illegal, it was still only one illegal arrest. The court will thus award Alexander $500 for the illegal arrest. Alexander was detained, including the time to transport her to and from the police station to the state jail, for about eight hours. The court will therefore award her $80 for the detention resulting from the illegal arrest. These damages total $580.

Since this is a civil rights case, Alexander, as the prevailing party, is also entitled to an award of costs and reasonable attorney's fees as part of compensatory damages. 11 F.S.M.C. 701(3); see also Estate of Mori v. Chuuk, 10 FSM Intrm. 123, 124 (Chk. 2001). The FSM civil rights statute's purpose is to allow a civil rights litigant to employ reasonably competent counsel to pursue civil rights litigation without cost to herself, Davis v. Kutta, 8 FSM Intrm. 218, 223 (Chk. 1997); see also Tolenoa v. Alokoa, 2 FSM Intrm. 247, 255 (Kos. 1986), particularly when the damages are small or uncertain and would not otherwise induce an attorney to pursue the matter. This is such a case.

The clerk shall therefore enter judgment in Alexander's favor in the amount of $580 plus reasonable costs and attorney's fees. Alexander shall, within 21 days of entry of judgment, file and serve her attorney's fees and costs request with detailed supporting documentation showing the date, the work done, and the amount of time spent on each service for which she makes a compensation claim, Bank of Hawaii v. Jack, 4 FSM Intrm. 216, 219 (Pon. 1990); Salik v. U Corp., 4 FSM Intrm. 48, 50-51 (Pon. 1989), so that Pohnpei may have notice and an opportunity to challenge the reasonableness of the fees and costs that she seeks. Carlos Etscheit Soap Co. v. McVey, 17 FSM Intrm. 102, 111 (Pon. 2010). Pohnpei shall have ten days thereafter to file and serve its response. The court will than, based on its ruling on the fees and costs request, order the clerk to amend the judgment.

CONCLUSION

Because, on September 20, 2008, Eliory Alexander's civil rights were violated by the manner of her arrest by the Pohnpei state police and by her detention in Pohnpei jail, the clerk shall enter judgment in her favor for $580 plus costs and reasonable attorney's fees. Judgment will be entered only against the Pohnpei state government. Alexander has 21 days to file and serve her attorney's fees and costs request, and Pohnpei will have ten days thereafter to file and serve its response. The court will then rule on the request and order amendment of the judgment.

Footnotes:

¹ Since Eliory Alexander sued Lucas Carlos both personally and in his official capacity as Director of Public Safety and since Lucas Carlos is no longer director, the current director is automatically substituted as a defendant in his official capacity. FSM Civ. R. 25(d)(1). Lucas Carlos remains a defendant in his personal capacity.

² While a warrantless arrest may be lawful, it is not always advisable. Here, there was no apparent reason why an information could not have been filed first and an arrest warrant or a penal summons then issued. There was no indication that Alexander was a danger to the public at large or to herself or that she was a flight risk or that she was about to destroy evidence of the crime. Nor was there any indication, especially considering how the events unfolded, that the police wanted her presence so they could conduct further investigation into the September 19, 2008 incident. When possible, an arrest with an arrest warrant is preferable to a warrantless arrest because, if challenged, the burden is on the government to justify the warrantless seizure or arrest, but when the seizure is conducted with a judicially-issued warrant the burden rests with the defendant to prove the seizure's illegality. See FSM v. Joseph, 9 FSM Intrm. 66, 69 (Chk. 1999).

³ The difference between the two is that to be guilty of "felonious assault and battery" the offender "does serious bodily harm" to the victim, 61 Pon C. § 5-133, while for "assault and battery" the offender only "does bodily harm" to the victim, 61 Pon. § 5-134.

⁴ When an FSM Declaration of Rights provision is patterned after a U.S. Constitution provision, U.S. authority may be consulted to understand its meaning. Primo v. Pohnpei Transp. Auth., 9 FSM Intrm. 407, 412 n.2 (App. 2000). Section Five of the Declaration of Rights is patterned after the U.S. Constitution's Fourth Amendment.

⁵ A test for whether a particular area is constitutionally protected from unreasonable searches and seizures is "whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334-35 (1987). Under this test, section five certainly protects Alexander's shower house area as the nature of its use is one in which there is a high expectation of privacy.

⁶ Also under Pohnpei state law, "[p]ersons arrested by a policeman . . . shall be brought before a court competent to try the offender for the offense charged . . . ." 62 Pon. C. § 2-117. The police neither interrogated Alexander (that is, they did not detain her to conduct a further investigation) nor tried to bring her before a court competent to try her for the offenses alleged in the police file. Pohnpei state law makes it unlawful "[t]o fail to release or charge [an arrestee] with a criminal offense within a reasonable time, which under no circumstances shall exceed twenty-four hours." 62 Pon. C. § 2-118(1)(c). Alexander was released without charge after about nine hours in custody (starting from when she was arrested at her home). Although the statute makes twenty-four hours per se unreasonable, it does not automatically make times shorter than twenty-four hours reasonable. Whether a shorter time is reasonable or unreasonable depends on the facts of the case.