KOSRAE STATE COURT
TRIAL DIVISION
Cite as Kosrae v. Paulino,
3 FSM Intrm. 273 (Kos. S. Ct. Tr. 1987)

[3 FSM Intrm. 273]

KOSRAE STATE,
Plaintiff,

v.

WINIFIELD PAULINO,
Defendant.

CRIMINAL ACTION NO. 4-84

OPINION
 
Before Harry H. Skilling
Chief Justice
Kosrae State Court
September 22, 1987

APPEARANCES:
          For the Plaintiff:          Aliksa B. Aliksa
                                               State Prosecutor
                                               Lelu, Kosrae 96944
 
          For the Defendant:     Patrick Olter
                                               Public Defender's Office
                                               Lelu, Kosrae 96944

*        *        *        *

HEADNOTES
Constitutional Law - Search and Seizure
     The Constitution does not protect a person against a "reasonable" search and/or seizure     and a search is reasonable where a search warrant has been obtained prior to the search.  Kosrae v. Paulino, 3 FSM Intrm. 273, 275 (Kos. S. Ct. Tr. 1987).

Constitutional Law - Search and Seizure
     Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautious man to believe that the accused is guilty of the offense, exists.  Kosrae v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr. 1987).

Constitutional Law - Search and Seizure
     An officer who, while standing on a road, sees a marijuana plant in

[3 FSM Intrm. 274]

plain view on top of a nearby house has not thereby engaged in an unlawful search.  Kosrae v. Paulino, 3 FSM Intrm. 273, 276 (Kos. S. Ct. Tr. 1987).

*        *        *        *

COURT'S OPINION
HARRY H. SKILLING, Chief Justice:
     Defendant's motion to suppress the evidence presents the questions whether the Kosrae State Constitution Article II, section 1(d) is violated by the police officers when they search a house pursuant to a search warrant, whether there was probable cause to support the search warrant to search the defendant's house, and, whether the defendant can be charged with the statutory provision under Title 13, Section 13.531 of the Kosrae Criminal Code.  After considering the facts of this case, I deny the motion.

I.  Issues
     1.     Whether or not the State Police in fact violated Article II, section 1(d) of the Kosrae State Constitution;

     2.     Whether or not there is probable cause to believe that a crime was being committed when the search warrant was issued; and

     3.     Whether or not K.C. 13.531 is in fact violated.

II.  Factual Background
     The essential facts are not in dispute.  Police officer Rensily Livai, while doing his normal duties, spotted a marijuana plant on top of the house where defendant and the rest of his family lives.  There are breadfruit trees that grow near the house, but officer Livai was clearly able to see the plant from the distance on the road where he was parked.

     The following day, January 28, 1987, the matter was reported to the Department of investigation.  A search warrant was subsequently requested and issued, based upon officer Livai's oral affidavit, which authorized the police to search the defendant's premises.  With the search warrant, a team of police proceeded to the area.  Upon arriving at the premises, the defendant admitted that it was his marijuana plant and therefore, the plant was taken from on top of the house.  The officer observed another plant nearby to where they were standing and both plants were confiscated and brought to the police station. Defendant was not arrested at that time and later a complaint was issued charging the defendant with a violation of KC 13. 531.  The defendant then moved the marijuana to be suppressed.

III.     Conclusion of Law, The Constitutional Provision Article
 
[3 FSM Intrm. 275]

II, section 1(d) reads as follows:

The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure and invasion of privacy may not be violated.  A warrant may not issue except on probable cause supported by affidavit particularly describing the place to be searched and the person or things to be seized.

     It is generally agreed that the Constitution of a state government is the supreme law of the state which guarantees citizens their liberties.  The Kosrae State Constitution further lays down fundamental rights of all citizens and the right of the people to be secured in their persons, houses, papers and other possessions against unreasonable search and seizure.

     The key language in this section is the word "unreasonable."  The Constitution does not protect a person against a "reasonable" search and/or seizure.  A search is reasonable where a search warrant has been obtained prior to the search.  A question in this case, therefore, is whether the search warrant was validly granted.  I find that it was.

     The Kosrae Code, Title Six, governs the procedure for applying for a search warrant.  KC 6.4303 provides that a search warrant may only apply towards certain property.  One category is property which cannot be lawfully possessed. This provision was satisfied in this case because the property which was the subject of the search warrant was marijuana, the possession of which is illegal under KC 13.531.

     The procedure for obtaining a search warrant is set forth in KC 6.4304.  Under this section, a person who seeks issuance of a search warrant personally appears before the court and makes application setting forth the grounds for issuance.  The statute further provides that the court may receive a supporting statement under oath and that the application and statement may be either written or oral.  If the court finds practicable, it places an oral application in writing for signature and oath by the person making it.  If the court is then satisfied that grounds for the application exist or that there is probable cause to find that they exist, it issues a search warrant identifying the property and naming or describing the person or place for search.  KC 6.4304.

     Both Article II, section 1(d) of the Constitution and KC 6.4304 use the term "probable cause" and under other circumstances the term could be considered unclear.  However, when the legislative history of the Constitution is considered, it becomes clear that the drafters intended the language of Article II, section 1(d) to have the same meaning as Article IV, section 5 of the Federated States of Micronesia constitution.

[3 FSM Intrm. 276]

The rights enumerated in section 1 of the proposal are identical with those enumerated in Article V of the FSM Constitution....Kosrae Con Con stand. Comm. Report no. 1-83-23., March 10, 1983.

     The notes to the constitutional convention for the FSM Constitution indicate that the framers intended the term "probable cause" in Article V to have the following meaning: "Probable cause is not proof of guilt, but shows that a reasonable ground for suspicion, sufficiently strong to warrant a cautious man to believe that the accused is guilty of the offense, exists."  SCREP No. 23, III J. of Micro. Con. Con. 794.

     Here, Officer Livai appeared before the court and orally applied for the search warrant.  In his application, he testified that he saw a marijuana plant growing on top of the residence of the defendant.  Based on this eyewitness testimony, there was probable cause for a search warrant because there was a reasonable ground for the suspicion that a crime was being committed on these premises, namely that defendant was acting in violation of KC 13.531. A search warrant was correctly issued.

     There is another ground supporting the reasonableness of this search.  At the time that the Kosrae Constitution was adopted, the rule in the FSM was that mere observation did not constitute a search and that when an object was in plain view of an officer that had a right to be in the position that he was, then the object was subject to seizure and could be introduced into evidence.  FSM v. Mark, 1 FSM Intrm. 284 (Pon. 1983).  It seems reasonable that the drafters intended to use not only the same terms in the Kosrae Constitution as were in the FSM Constitution, but also to incorporate the same meaning of those terms into the Kosrae Constitution.  Therefore, I hold that the mere observation does not constitute a search.

     With the case at bar, the initial marijuana plant was in plain view of the Officer Livai.  Since officer Livai could see the first plant from where he was lawfully situated on the road, then there was no unreasonable search within the meaning of Article II, section 1(d) of the Kosrae Constitution.  The second marijuana plant was also not the result of an unlawful search since the officer was lawfully seizing the first plant when he saw the second one in plain view.

IV.  Kosrae Criminal Code, Section 13.531
     The defendant raises another argument that KC 13.531 was unconstitutionally applied to him because the police did not weigh the evidence. in its entirety, this section provides:
 
Section 13.531. Possessing a controlled substance Possessing a controlled substance is knowingly or intentionally possessing a controlled substance unless

[3 FSM Intrm. 277]

such substance was obtained directly from or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice.  Possessing a controlled substance other than marijuana is a category one misdemeanor. Possessing one ounce or less of marijuana is a category three misdemeanor.   Possessing more than one ounce but less than two and two-tenths pounds of marijuana is a category two misdemeanor.  Possessing more than two and two-tenths pounds of marijuana is a category one misdemeanor.

     From the plain meaning of this statute it is clear that anyone who possesses any marijuana is going to be in violation of this section.  The weight of the evidence is important not for whether the statute applies, but for determining the appropriate penalty.  Whether the police weighed the evidence is therefore not a basis for suppressing the evidence.

V.  Conclusion
     For the reasons stated here, I conclude that the police officer's seizure of the marijuana plants was valid.

     The motion to suppress is denied.

     Ordered this 22nd day of September, 1987.
                                                                                                                                                                                                                                                                                                           
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