THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Chuuk v. Arnish ,
6 FSM Intrm. 611 (Chuuk S. Ct. Tr. 1994)

[6 FSM Intrm. 611]

CHUUK STATE,
Plaintiff,

vs.

HENRY ARNISH (Meriu Arnish) and
JAY DENNISON SOUND (JD Sound),
Defendants.

CRIMINAL CASE NO. 253-94

OPINION

Richard H. Benson
Special Justice

Hearing:  November 10-11, 14-15, 1994
Decided:  December 19, 1994

APPEARANCES:
For the Plaintiff:                Wesley Simina, Esq.
                                           Chuuk State Attorney General
                                           Eriano Eram
                                           Office of the Chuuk Attorney General
                                           P.O. Box 189
                                           Weno, Chuuk FM 96942

For the Defendant:           William Sublette, Esq.
(Henry Arnish)                   Office of the Public Defender
                                           P.O. Box 245
                                           Tofol, Kosrae FM 96944

For the Defendant:           Les Downs, Esq.
(Jay Dennison Sound)     Office of the Public Defender
                                           P.O. Box PS-174
                                           Palikir, Pohnpei FM 96941

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[6 FSM Intrm. 612]

HEADNOTES
Criminal Law and Procedure; Statutes
     Criminal statutes in effect on the effective date of the Constitution of the State of Chuuk (Oct. 1, 1989) that are consistent with the Constitution continue in effect.  Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994).

Criminal Law and Procedure ) Arrest and Custody
     A person arrested by the police must be brought before a justice of the state court without unnecessary delay, not to exceed twenty-four hours.  Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994).

Criminal Law and Procedure ) Interrogation and Confession
     By statute, statements taken as a result of a violation of the defendant's statutory right to be brought before a judicial officer without unnecessary delay are inadmissible, even if voluntary.  Chuuk v. Arnish, 6 FSM Intrm. 611, 613 (Chk. S. Ct. Tr. 1994).

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COURT'S OPINION
RICHARD H. BENSON, Special Justice:
     This case came before me on the defendants' motions to suppress their statements made during police interrogation.  On the fourth day of an evidentiary hearing the matter was submitted for decision.  Written and oral argument, and the evidence raise several issues but only one need be decided in order to dispose of the motions:  Were the defendants detained an unreasonable time before being taken before a judicial officer?  I conclude that they were and grant the motions.

I.
     At about 2:00 a.m. Monday, July 4, 1994, there was a fight outside the Key Club in Iras, Island of Weno.  One person died about two hours later as a result of a knife wound received in the fight.

     Later the same day, the defendants were arrested without warrants:  Jay Dennison Sound about 3:35 a.m., Henry Arnish still later, but before sunrise.  It is not disputed that the authority for the arrest is found in 12 TTC 61(3).  After arrest they were confined in a detention room.  They remained in that room without food or drink until removed one by one for interrogation:  Jay Dennison Sound about 8:00 o'clock p.m., Henry Arnish about 5:00 o'clock p.m.  During the course of interrogation they made statements they now seek to suppress.

     An information and an affidavit were filed on July 5, 1994.   The defendants appeared before the Chuuk State Supreme Court during the afternoon of July 5, 1994, and were advised of the accusations against them and of their rights to counsel, to release and to remain silent.

II.
     The decision on these motions is based on Rule 5(a) of the Rules of Criminal Procedure for the Trial Division of the State Court of the State of Truk and some provisions of chapter 2 of Title 12 of the Trust Territory Code (1980)  (hereinafter cited as 12 TTC ) (section number)).

[6 FSM Intrm. 613]

     The first sentence of Rule 5(a) provides in part, "[A]ny person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available justice of the State Court."  The rule then provides for the filing of a complaint "forthwith" to show probable cause for the arrest, and for the advice to the person of his rights concerning counsel, release and silence.

     The provisions of Title 12 pertinent to this case were first codified in 1966. They constitute statutes in effect on the effective date of the Constitution of the State of Chuuk which was October 1, 1989.  Chuuk Const. art. XV, 1.  They are consistent with the Constitution and therefore continue in effect.  Id. art. XV, 9.

     12 TTC 67, entitled "Disposition of arrested persons by policeman" provides in part, "Persons arrested by a policeman . . . shall be brought without unnecessary delay before a court competent to try the offender for the criminal offense charged . . . ."

     12 TTC 68 entitled, "Rights of persons arrested" provides in pertinent part,  "In any case of arrest . . . it shall be unlawful . . . (c) to fail either to release or charge such arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed twenty-four hours."

     In the evidentiary hearing no witness testified that the delay prior to taking the statements (about 16 hours for Jay Dennison Sound and 12 hours for Henry Arnish) was dictated by any reason.  It appears that the police felt no time constraints existed for acts within 24 hours.  The advice form bears this out.  It reads, "You can not be held for more than twenty-four hours without being charged with a criminal offense and I must either release you or bring you before a judicial officer within twenty-four hours."  It is also born out by the government's written and oral arguments in which the delay was justified because it "was well within 24 hours."  The rule and the statute however require bringing before a judicial officer without unnecessary delay.  There is no evidence that any delay was necessary.  July 4, 1994 was a Monday, a normal workday.  The court was open for business.  Several judges were available, and the accused were being held only minutes away from the courthouse.

     12 TTC 70 provides in part, "No violation of the provisions of this title shall in and of itself entitle an accused to an acquittal, but no evidence obtained as a result of such violation shall be admissible against the accused . . . ."  I find that the statements made by the defendants were the result of the unlawful act of not taking the defendants before a judicial officer without unnecessary delay in violation of 12 TTC 67, 68.  The statute requires the suppression of the statements.

     Consistent with my conclusion is dicta of former Chief Justice Furber in Eram v. Trust Territory, 3 TTR 442, 444 (Truk 1968):

     The appellant's main contention here appears to be that his confession was obtained while he was under illegal detention because, after his arrest on a warrant, he was not brought without unnecessary delay before a court or official authorized to issue a warrant as required by Trust Territory Code, Section 463 (as amended by P.L. 2-13, September 2, 1966) [now codified as 12 TTC 67]. The court fully agrees that if this were so, the confession would be inadmissible under the doctrine of McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608 (1943), which Trust Territory Code, Section 498, [now included in 12 TTC 70] expressly makes applicable to any evidence obtained in violation of Chapter 6 of the Code, of which Section 463 is a part.
 
[6 FSM Intrm. 614]

     The government asserts that because the interrogation of the defendants took place within the statutory period of 24 hours the resulting confessions are admissible.  For this contention the government relies upon Trust Territory v. Kaneshima, 4 TTR 340 (Pal. 1969).  That reliance is misplaced.  Kaneshima involved charges of illegal fishing by the captain of a foreign vessel, who, once arrested at sea, gave a knowing, voluntary written incriminating admission within the 24 hour period.  He was not charged or brought before a committing magistrate until the second day after the arrest.  However, unlike the case before me, the defendant was charged and brought before a magistrate within a reasonable time ) as soon as the circumstances permitted the making of a formal written complaint and bringing the accused before a committing magistrate.  Id. at 346.  More importantly, because the reasonable time requirement was met, the trial judge never had to consider the effect of 12 TTC 70.

III.
     The Trust Territory and the United States diverged from one another in 1968. Prior to that time both jurisdictions had a rule (in the U.S. because of McNabb and in the Trust Territory because of 12 TTC 70) that unreasonable delay warranted exclusion of any confession obtained during that delay.  In McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), cited above by Judge Furber, the court held that a confession in a federal case during unlawful detention was inadmissible as evidence at trial.  The court held that this rule was made pursuant to its supervisory authority over the administration of federal criminal justice.  In Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957) the court reaffirmed McNabb.

     The United States Congress enacted and the President approved the Omnibus Crime Control and Safe Streets Act of 1968 which restricted the application of McNabb-Mallory.  Unlawful detention became only one factor to be considered in determining whether a confession was voluntary.  18 U.S.C. 3501(b).

     Perhaps the adoption of 12 TTC 70 was inspired by McNabb.  However, the 1968 U.S. act has no effect here.  12 TTC 70 remains the applicable law in Chuuk.

IV.
     Jay Dennison Sound also moves for the suppression of his statement when arrested.  The arresting officer, dispatched with instructions to arrest Jay Dennison Sound testified that when he found the defendant at his home the officer talked to him, scolded him, and said, "You caused the death of the person."  The defendant wants his own response suppressed.  In the absence of any authority or argument to support it, the motion is denied.

V.
     For the foregoing reasons the motions of the defendants for the suppression of their statements given in response to interrogation by the police detectives, including the defendants' responses to the question, "Do you know why you are arrested?" are granted.
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