FSM 6 Intrm. 584-591

Because the purpose of article IV, section 5 of the Constitution is to protect the privacy rights of individuals against unreasonable and unauthorized searches and seizures by government officials it has been interpreted to require that an individual suspected of a crime be released from detention unless the government can establish "probable cause" to hold that individual. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588 (Pon. 1994).

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. The probable cause determination must be made by the deliberate, impartial, judgment of a judicial officer. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 588-89 (Pon. 1994).

Often the determination of probable cause is made by a competent judicial officer upon the issuance of an arrest warrant, but where an arrest is not made pursuant to a warrant the arrested is entitled to a judicial determination as to whether there is probable cause to detain the accused. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589 (Pon. 1994).

An individual whose property has been seized pursuant to a civil forfeiture proceeding is entitled to a post-seizure hearing in order to determine whether there is probable cause to seize and detain that property. The probable cause standard in a civil forfeiture case 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 has occurred and that the property was used in that violation. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 589-90 (Pon. 1994).

The government has probable cause to detain a fishing vessel for illegal fishing when the evidence and information indicate that the vessel was conducting fishing operations within the FSM Exclusive Economic Zone, there was freshly caught fish aboard, and the permit provided to the officers contained a name different from the actual name of the vessel. FSM v. Zhong Yuan Yu No. 621, 6 FSM Intrm. 584, 590-91 (Pon. 1994).

The matter before the Court in this civil forfeiture action concerns whether the Government's seizure and detention of a vessel suspected of being used in illegal fishing activities within the exclusive economic zone of the Federated States of Micronesia (the "FSM") was based on probable cause. At a post-seizure hearing conducted on October 20, 1994, the Court concluded that probable cause did exist for the seizure and detention in this case. This order and memorandum of decision addresses the basis for the Court's decision.

On September 29, 1994, the FSM authorities conducted an inspection of a fishing vessel, the Zhong Yuan Yu No. 621 (the "Vessel"), located within the exclusive economic zone of the Federated States of Micronesia. After reviewing the Vessel's documentation and inspecting the equipment on board, the boarding officers concluded that the Vessel was in violation of Title 24 of the FSM Code. Accordingly, the captain and crew were arrested and the Vessel, which is still in the custody of the Government, was seized. Seizure of the Vessel was based on section 513(1)(d) of Title 24 which permits specifically authorized officials to "seize any fishing vessel used or employed in, or when it reasonably appears that such vessel was used or employed in, the violation of any provision of this title."

In this case the underlying basis for the Government's action in forfeiture concerns alleged criminal violations of the statutory provisions of Title 24 as well as violations of the foreign fishing agreement entered into between the FSM and Defendants. A violation of the provisions of the foreign fishing agreement is also prohibited under Title 24.3 24 F.S.M.C. 501(1)(c).

On October 20, 1994, the Court held a post-seizure hearing in this case. The purpose of the hearing, which was attended by counsel for both the FSM and the Defendants, was to determine whether the seizure of the Vessel was based on probable cause. To that end, and at the Government's request, judicial notice was taken of the affidavit of the arresting officer, Dexter Benjamin. Officer Benjamin's affidavit, originally filed in connection with the accompanying criminal action, contained the following information:

The Government contends that this evidence and information is sufficient to demonstrate that the boarding officers had probable cause to seize the Vessel in this case. Defendants disagree, arguing that the seizure, as well as the continued detention of the Vessel, is unwarranted and not based on probable cause. In so arguing, Defendants do not challenge the search of the Vessel.4 Nor do they dispute the FSM's allegation that the Vessel was being used to conduct fishing operations within the exclusive economic zone of the FSM. In fact, Defendants readily admit that they were engaged in such activities. Nonetheless, Defendants assert that probable cause did not exist at the time the Vessel was seized because the Vessel has a valid permit.

The purpose of this provision is to protect the privacy rights of individuals against unreasonable and unauthorized searches and seizures by Government officials. See FSM v. Tipen, 1 FSM Intrm. 79, 86 (Pon. 1982). Section 5 also has been interpreted by this Court to require that an individual suspected of a crime be released from detention unless the Government can establish "probable cause" to hold that individual. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 77 (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 of the [law] has occurred and that [the accused committed] that violation. Id.; see also 12 F.S.M.C. 503.

In many criminal cases, a determination of probable cause is made by a competent judicial officer upon the issuance of an arrest warrant. 12 F.S.M.C. 210; see also FSM Crim. R. 4. According to FSM Criminal Rule 4(a) an arrest warrant may issue in a criminal case if "it appears from the complaint, or from affidavit[s] filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it . . . ." Moreover, in such cases, "[t]he finding of probable cause may be based upon hearsay evidence in whole or in part." FSM Crim. R. 4(b).

In situations where an arrest is not made pursuant to an arrest warrant, however, the arrested individual nonetheless is entitled to a judicial determination as to whether there is probable cause to detain the accused. 12 F.S.M.C. 218(5). Like the process for obtaining an arrest warrant, the probable cause hearing is an informal, non-adversarial proceeding in which the formal rules of evidence and the requirement of proof beyond a reasonable doubt do not apply.5

This Court has determined that article IV, section 5 also requires that property seized pursuant to a civil forfeiture proceeding must be based on probable cause. Ishizawa v. Pohnpei, 2 FSM Intrm. 67 (Pon. 1985). A civil forfeiture proceeding, however, is not a criminal action, and such proceedings are not automatically subject to the procedural rules found in Title 12 of the FSM Code or upon this Court's Rules of Criminal Procedure. For example, post-seizure hearings are not subject to the twenty-four hour requirement set forth in 12 F.S.M.C. 218(5).6 It is equally true, however, that a forfeiture proceeding is not a typical civil action either. Rather, a forfeiture proceeding is a civil action that shares many similarities with criminal proceedings. Often, as is the case here, forfeiture is sought because the property was used in connection with the commission of a crime. Moreover, while not as serious as the detention of a person, the seizure and retention of valuable property nonetheless "constitute[s] a substantial intrusion upon the privacy of [the] individual whose . . . property is affected," and for which probable cause must be established. Ishizawa, 2 FSM Intrm. at 75.

is entitled to a hearing in order to determine whether there is probable cause to seize and detain that property. Ishizawa, 2 FSM Intrm. at 77. Although the procedural rules for a post-seizure hearing differ from those applied in a criminal probable cause hearing, this Court has determined that the actual probable cause standard in a civil forfeiture case should be whether there is "evidence and information sufficiently persuasive to warrant a cautious person to believe it is more likely than not that a violation . . . has occurred and that the [property] was used in that violation." Id.7 It is with this standard in mind that this Court now examines whether there was in fact probable cause to seize the Vessel in this case.

The Court finds that the evidence and information presented by the Government is sufficient to establish probable cause to seize and detain the Vessel in this case. The evidence and information presented by the Government indicated that fishing operations were being conducted on the Vessel, and that those operations took place well within the FSM exclusive economic zone. In addition to the location of the ship, the information of the arresting officer indicated that there was a quantity of freshly caught fish on board and that the fishing gear aboard the Vessel was not properly stowed. The Court, imparting its impartial judgment to these facts, concludes that there was sufficient probable cause to conclude that this Vessel was engaged in illegal fishing. The fishing permit that was provided to the officers contained a name that differed from the actual name of the Vessel and therefore did not appear valid on its face. Even if this error was, as Defendants attempted to demonstrate during the post-seizure hearing, merely clerical in nature, the fact remains that the error created probable cause to believe that this Vessel was being used unlawfully to engage in fishing without an applicable permit.

Moreover, the statement of the arresting officer also provides sufficient cause to believe that the Vessel violated provisions of Title 24 other than the prohibition against fishing without an applicable permit. For example, upon the request of the boarding officers, the captain and crew failed to present a catch report and a log book as required by the provisions of their foreign fishing agreement, and hence by Title 24. The affidavit of the boarding officer also stated that the radio required to be on board was not in proper working order. Even if Defendants are correct in arguing that the Vessel is duly permitted, these other alleged violations present sufficient justification for the

seizure of the Vessel. The Court also finds that the Defendants' purported explanations of these additional violations are insufficient to rebut the Government's showing of probable cause. According to Defendants language differences, including the fact that the captain and crew speak a number of Chinese dialects, may have accounted for misunderstandings regarding the failure of the captain and crew to present a valid catch report and log book. Defendants also argue that the arresting officer's bare assertion that the radio was not in working order is insufficient to demonstrate probable cause. The Court, after giving all due weight to Defendants' arguments,8 concludes, based on its independent review of the facts and circumstances, that the Government has shown that the officers had probable cause to believe that the Vessel was being used in violation of the laws of the FSM. Accordingly, the Court finds that the seizure and detention of the Vessel was appropriate.9

The factors set forth above constitute the basis for the Court's conclusion that there was sufficient probable cause to seize and detain the Vessel in this case. Accordingly, the Vessel, the Zhong Yuan Yu No. 621, will remain in the custody of the FSM pending trial or until Defendants meet the requirements of the Bond Order dated November 4, 1994.

1. Although the civil forfeiture claim is predicated upon the violations alleged in the criminal information, the criminal case is a separate proceeding that is not being ruled upon within this Order. Accordingly, further reference to the criminal action in this Order and Memorandum of Decision will be made only to the extent that it is necessary to an understanding of the issues currently before the Court.

2. In addition to the forfeiture of the Vessel, the civil action filed by the Government also seeks civil fines against three owners and operators of the Vessel: Defendant Beihai Pelagic Fishing Co., is the owner of the Vessel; Defendant Micronesian Fishery Venture, Inc., is an agent of the owner who is responsible for chartering the Vessel; and, Wu Ya Si is the Vessel's captain and fishing master.

3. These alleged violations include: (1) Fishing Without an Applicable Permit; (2) Transporting and Possessing Fish Taken in Violation of Law; (3) Failing to Properly Stow Fishing Gear; (4) Failing to Produce a Catch Report and Log Book; (5) Failing to Maintain a Proper Radio on Board; (6) Knowingly Providing False or Misleading Information; and, (7) Obstructing the Performance of the Boarding Officers.

4. Although article IV, section 5 of the FSM Constitution also requires that searches be reasonable, the standard for engaging in a search of private property is less exacting than the standard required for seizing such property. Ishizawa v. Pohnpei, 2 FSM Intrm. 67, 75 (1985). Moreover, as stated in Ishizawa, the statutes here at issue grant "broad authorization to officials to inspect fishing vessels." Id. at 74. Based on these considerations, as well as upon the various exceptions to the warrant requirement for inspections of oceangoing fishing vessels, see id., the Court also finds that there is no basis to challenge the search in this case.

6. In many of their motions, Defendants have relied on the criminal law provisions of the FSM Code and of this Court's Rules of Criminal Procedure with regard to the Vessel in the civil forfeiture action. Defendants' reliance on such provisions is misplaced for a number of reasons. First, as stated in the text, the civil forfeiture action is not a criminal proceeding, and thus not susceptible to the procedural niceties of the criminal law. Second, the provisions of Title 12 of the FSM Code, entitled "Criminal Procedure," and of the FSM Rules of Criminal Procedure which have been relied upon by Defendants explicitly state that they apply only to "persons." The FSM Code defines a "person" as "any individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity." 11 F.S.M.C. 1112 (18). Thus, according to the FSM Code definition of "person," the criminal procedure provisions relied upon by Defendants apply not to inanimate objects such as vessels, but rather to actual persons, or to entities that are recognized as "persons" under the law.

7. While the probable cause standard applied in the two hearings is the same, the two hearings themselves are not identical. For instance, what may be considered prompt for purposes of conducting a civil forfeiture proceeding, may not necessarily be considered prompt in a criminal case where the detention is forced upon the individual rather than his property. Compare 12 F.S.M.C. 218 (4) (requiring, under ordinary circumstances, that a bail hearing for an individual accused of a crime be held no later than twenty-four hours after the arrest) with Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 671, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974) (permitting seizure of vessel where no notice was given for ten days following the seizure, and where no prior adversary hearing was held). See also United States v. Eight Thousand Eight Hundred & Fifty Dollars, 461 U.S. 563, 103 S. Ct. 2005, 76 L. Ed. 2d 143 (1983) (adopting four factor test for determining whether post-seizure delay may become so prolonged that the property owner has been denied due process). But see Ishizawa, 2 FSM Intrm. at 76 n.9 (suggesting in dicta that government officials may be required to seek a post-seizure hearing within three days after seizure). In noting the above, this Court makes no attempt to decide the issue of what constitutes a prompt post-seizure hearing, because the parties have not yet raised that issue in this case. Rather, the passage is meant merely to emphasize the procedural differences that exist between post-seizure hearings in civil forfeiture cases and probable cause hearings conducted in criminal proceedings.

8. It is apparent to the Court that the Government and the Defendants disagree on which side will ultimately prevail in this case. The purpose of a post-seizure hearing, however, is not to an ultimate determination of the facts. That is the purpose of a trial. The issue at a post-seizure hearing is limited to the question of whether the Government has sufficient evidence to meet the threshold requirement of probable cause to detain. In this case, the Government has met its burden.

9. At the post-seizure hearing, Defendants presented, for the first time, information that they claim demonstrates that the Vessel does have a valid permit. Based on this information, Defendants argue that the seizure of the Vessel was invalid and that the Vessel therefore should be released. Defendants are mistaken in their view. The determination of probable cause to seize the Vessel is limited to the information that was, or reasonably should have been, known to the officers at the time of the seizure. The additional information presented by Defendants at the post-seizure hearing, however, was not presented to the officers at the time they seized the Vessel. Accordingly, Defendants' new information has no effect on the question of whether the boarding party had probable cause to seize the Vessel on September 29, 1994. Moreover, since this Court must consider the issue of probable cause to seize in light of the information known to the officers at the time of the seizure, this evidence also cannot be considered in the Court's independent examination of whether or not there was probable cause to seize the Vessel on September 29.