THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
TRIAL DIVISION
Cite as FSM v. Aki, 9 FSM Intrm. 345 (Chuuk 2000)

[9 FSM Intrm. 345]

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

Akinino AKI,
Defendant.

CRIMINAL CASE NO. 1999-1503

ORDER

Richard H. Benson
Associate Justice

Hearing:  February 14, 2000
Decided:  March 3, 2000

APPEARANCES:
For the Plaintiff:          Joses Gallen, Esq.
                                     Acting Attorney General
                                     Office of the Chuuk Attorney General
                                     P.O. Box 189
                                     Weno, Chuuk FM 96942

For the Defendant:     Ready Johnny, Esq.
                                     FSM Public Defender
                                     P.O. Box 754
                                     Weno, Chuuk FM 96942

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[9 FSM Intrm. 346]

HEADNOTES
Search and Seizure ) Probable Cause
     The police have probable cause to stop a sedan and detain its driver when they found it headed northbound a short time after it almost collided with a police car while it was speeding southbound and passing another southbound vehicle because the sedan had tinted windows and the police had no reason to believe that the sedan had switched drivers in the short time since they had last seen it.  FSM v. Aki, 9 FSM Intrm. 345, 348 (Chk. 2000).

Search and Seizure ) Incident to an Arrest
     A search that was not done at the place of the arrest and at the time of the arrest or immediately thereafter is not a valid search incident to a lawful arrest.  FSM v. Aki, 9 FSM Intrm. 345, 348 (Chk. 2000).

Search and Seizure ) Inventory Search
     To be valid, an inventory search must be governed by a standardized or established routine and not be a general rummaging to discover incriminating evidence.  The policy or practice governing inventory searches should be designed to produce an inventory.  The purpose of a standardized inventory procedure is to deter an arrestee's false claims of missing or damaged property, to inhibit theft or careless handling of an arrestee's property, and to protect against any dangerous instrumentalities that may be found.  FSM v. Aki, 9 FSM Intrm. 345, 348-49 (Chk. 2000).

Search and Seizure ) Inventory Search
     When the police did not follow their own standard procedure for an inventory search of a vehicle and no inventory of the sedan's contents was made, and no listing of the sedan's description and owner made, it can only be described as a warrantless search for evidence, and as such was an illegal search.  FSM v. Aki, 9 FSM Intrm. 345, 349 (Chk. 2000).

Search and Seizure ) Return of Seized Property
     The court shall receive evidence on any issue of fact necessary to decide a motion for return of property.  FSM v. Aki, 9 FSM Intrm. 345, 349 (Chk. 2000).

Search and Seizure ) Return of Seized Property
     A Rule 41(e) motion to return seized property the government claims it never had will be treated as a civil proceeding and may be entertained post-judgment or prejudgment.  FSM v. Aki, 9 FSM Intrm. 345, 349-50 (Chk. 2000).
 
Search and Seizure ) Return of Seized Property
     To prevail in his motion the defendant must show that the seizure of the property was illegal, and that he is entitled to lawful possession.  The burden of persuasion as to the possession is by a preponderance of the evidence.  FSM v. Aki, 9 FSM Intrm. 345, 350 (Chk. 2000).

Search and Seizure ) Return of Seized Property
     When the defendant has established by a preponderance of the evidence that the $900 existed, that it was in his briefcase, that it was taken from his briefcase sometime after the police obtained the briefcase and before it was returned, and that he is entitled to lawful possession of the $900.00, a motion to return will be granted and since that money is not in the possession of the government, the defendant shall have judgment against the state for $900.00.  FSM v. Aki, 9 FSM Intrm. 345, 350 (Chk. 2000).

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[9 FSM Intrm. 347]

COURT'S OPINION
RICHARD H. BENSON, Associate Justice:
     On February 14, 2000, this case came before me on the defendant's Motion to Suppress Evidence and Motion for Return of Property (Crim. R. 12 & R. 41(e)). After a day and a half of testimony and oral argument on the third day, on February 17, 2000, I found probable cause for the defendant's arrest, but granted his motion to suppress evidence.  I reserved my ruling on the defendant's Rule 41(e) motion for return of property and gave the parties one week to submit memorandums concerning my authority to rule on such a motion when the government asserts that it never had possession of the property that defendant Akinino Aki seeks returned and does not know if such property ever existed. Defense counsel has submitted some authorities in a letter that was later served on the prosecutor.  The government has not submitted anything.

     I write now to memorialize my earlier order suppressing evidence and to make my ruling on the property return motion.  I rule that I have the authority to rule on the motion and that the state is liable to Aki for $900.

I.  Background
     In the late afternoon on March 6, 1999, two Chuuk State Police officers, Efrem Ruben and Kelvin Salle, were in their patrol vehicle headed north near the Waapi building on the main road on Weno when a southbound speeding white sedan, passing another vehicle, almost collided with their patrol car.  They were unable to see the white sedan's driver because the sedan had tinted windows.  The police officers turned their vehicle around and radioed for backup.  Officer Johnson Silander, then patrolling in Mwan, responded and proceeded northbound to intercept the white sedan.  Officers Ruben and Salle, proceeding southbound, again encountered the white sedan, which was now heading northbound, when they reached the Bayview area.  They again turned their patrol vehicle around and gave chase.  Both police vehicles caught up with the white sedan and stopped it on the main road across from the Chuuk Star Hotel.

     Officer Salle opened the sedan's driver's door.  Present in the front seat were Akinino Aki, the driver, and Junior Wengu, a passenger.  In the back seat were Mrs. Victoria Aki and their young daughter.  The police officers testified that they saw a plate of marijuana on the floor of the front seat.  Aki's, Wengu's, and Mrs. Aki's testimony denied there was any marijuana.  Aki and Wengu were arrested and taken to police station in a police vehicle.  Officer Silander then drove the white sedan to the police station.  Before arriving there, he stopped at Seaside to let Mrs. Aki and her daughter out.  Mrs. Aki took a briefcase with her.  She said that the briefcase was her husband's.  Before Silander allowed her to take the briefcase, he picked it up and shook it to see if there were any weapons inside the case.  He did not open the case.

     Officer Silander searched the sedan at the police station.  He found two ammunition clips in the glove compartment.  Silander testified that he gave the ammunition clips and the marijuana to the shift commander.  Aki, who along with Wengu was just being released, was then rearrested and confined to a cell.

     Later, three police officers went to Aki's residence, ostensibly to retrieve Aki's driver's license because although Aki claimed to have a driver's license he did not have it with him when he was stopped.  Mrs. Aki was asked for Aki's license but could not find it.  She did pick up the briefcase, which the police then took, saying that Aki had asked them to get it.  The briefcase was then brought to the police station and opened and searched.  The contents consisted of cash and checks, of which

[9 FSM Intrm. 348]

a list was made, showing checks totaling $683.82 and $626 in cash.

     Yoshibo Mori, a relative of Aki's, and Mrs. Aki then went to the police station to bring Aki food and to retrieve the briefcase because cash was needed to buy fish for Aki's market.  Mori picked up the briefcase and the police escorted him to Aki's cell to get Aki's permission to take the briefcase and to see the list of its contents.  Aki became upset and demanded to know how they got in his briefcase and where was the envelope with $900 in it.

     On August 17, 1999, an criminal information and penal summons were filed against Akinino Aki. Aki was charged with carrying and possessing a banana-shaped plastic clip containing 24 rounds of .22 caliber ammunition in violation of 11 F.S.M.C. 1206, and of carrying and possessing a metal clip 13 rounds 9mm ammunition in violation of 11 F.S.M.C. 1202.  No marijuana or traffic charges were filed.  On September 13, 1999, Aki filed his Motion to Suppress Evidence and Motion for Return of Property (Crim. R. 12 & R. 41(e)).  On September 28, 1999, the prosecution filed its Motion in Opposition to Motion to Evidence and Motion for Return of Property.  The motions came on for hearing on February 14, 2000.

II.  Motion to Suppress
A.  Probable Cause
     The first issue I had to resolve was whether the police had probable cause to stop the white sedan and detain Aki.  If there was no probable cause any evidence seized as a result of the stop would be inadmissible.  The defense asserted that there was no probable cause.  There was testimony that another person, Joe, Aki's nephew, was driving the car southbound with Wengu when it almost collided with the police car, and that Joe met Mr. and Mrs. Aki and their daughter, who had just left a mass at Family Meippen Church, at the fishing market where they were waiting for the car.  Joe then took the boat to Tol and Aki drove the car northbound on the way to his home near Stop n' Shop.  Wengu testified that Joe had not been speeding on the way down, and Aki testified that he did not speed on the way back.  The defense argued that this meant that there was no probable cause to stop the vehicle.

     Both Wengu and the police testified that the white sedan almost collided with a police car while it was passing another southbound vehicle near Waapi.  I conclude that this carelessness as well as the speeding on the southbound trip gave the police probable cause to stop the white sedan when they found it headed northbound a short time afterwards, regardless of whether it was being driven by the same person. This is because the sedan had tinted windows and the police had no reason to believe that the sedan had switched drivers in the short time since they had last seen it.

B.  Search of the Car
     The next issue I had to resolve was whether the search of the sedan at the police station was a valid warrantless search.  The defense contends that the search was not a valid search incident to a lawful arrest.  This is correct because the search was not done at the place of the arrest and at the time of the arrest or immediately thereafter.  Cf. Ludwig v. FSM, 2 FSM Intrm. 27, 32, 34 (App. 1985) (citing SCREP. No. 23, II J. of Micro. Con. Con. 794); Yinmed v. Yap, 8 FSM Intrm. 95, 99-101 (Yap S. Ct. App. 1997).  The government does not contend it was a search incident to arrest, but contends that it was a valid inventory search.

     A valid warrantless inventory search was recognized in FSM v. Joseph, 9 FSM Intrm. 66, 72 (Chk. 1999).  To be valid, an inventory search must be governed by a standardized or established routine

[9 FSM Intrm. 349]

and not be a general rummaging "`to discover incriminating evidence.  The policy or practice governing inventory searches should be designed to produce an inventory.'"Id. (quoting Florida v. Wells, 495 U.S. 1, 4, 110 S. Ct. 1632, 1635, 109 L. Ed. 2d 1, 6 (1990)).  The purpose of a standardized inventory procedure is to deter an arrestee's false claims of missing or damaged property, to inhibit theft or careless handling of an arrestee's property, and to protect against any dangerous instrumentalities that may be found.  Id. (citing Illinois v. Lafayette, 462 U.S. 640, 646, 103 S. Ct. 2605, 2609, 77 L. Ed. 2d 65, 71 (1983)).

     Detective Sergeant Imao Mathew testified that it was standard procedure to inventory the contents of an arrestee's vehicle in order to account for the property in a person's possession at the time of arrest.  He testified that an inventory includes the name of the vehicle's owner, a description of the vehicle, and a list of its contents. There was testimony that a copy of the inventory is left in the vehicle for the arrestee or given to the supervisor.

     Officer Silander, who also testified about standard police inventory procedure, acknowledged that he personally did not make a list of the sedan's contents and that he only remembered listing the clips and ammunition, which were marked as evidence.  Sgt. Mathew testified that the two ammunition clips were all that was listed on a standard evidence form as evidence recovered by Johnson Silander, March 6, 1999.  The form, plaintiff's exhibit one, was introduced into evidence but was not admitted.  None of the government witnesses testified that a separate inventory report had been made or that one existed, and none was introduced in evidence.

     I therefore concluded that the discovery of the ammunition clips was not the product of a valid, warrantless inventory search.  The police did not follow their own standard procedure for an inventory search of a vehicle.  No inventory of the sedan's contents was made, and no listing of the sedan's description and owner. It can only be described as a warrantless search for evidence, and as such was an illegal search.  Accordingly, I granted the motion to suppress the introduction of the two ammunition clips into evidence.

III.  Motion to Return Property
     Aki also seeks return of $900 that he claims was contained in a separate envelope in his briefcase and taken from there by the police.  The government denies that any $900 was taken and states that it has no evidence that the $900 ever existed.  Raising the issue on my own, I reserved my ruling on the motion in order to allow the parties one week to file memorandums concerning my authority to rule on a motion for the return of property that the government says it never had. The defendant submitted a memorandum in letter form.

     I conclude that I do have the authority to rule on the Rule 41(e) motion to return even though the government contends that it never had the property at issue ) the $900.  My reasons follow:

     Neither party contends that the authority is lacking.

     The text of 41(e) contains no language indicating that the authority is limited, and does specifically provide, 'The court shall receive evidence on any issue of fact necessary to the decision of the motion'.  FSM Crim. R. 41(e).

     Although no case has been furnished, nor has the court's search revealed any, in which the prejudgment authority was raised, cases involving facts comparable to this case do exist in which the motion to return property the government claims it never had is made post-judgment.  The Second Circuit Court of Appeals has held that a motion to return will be treated as a civil proceeding.  Soviero

[9 FSM Intrm. 350]

v. United States, 967 F.2 791, 791-92 (2d Cir. 1992.); Onwubiko v. United States, 969 F.2d 1392, 1397 (2d Cir. 1992).  A Rule 41(e) motion may be entertained post-judgment.  United States v. Burton, 167 F.3d 410, 410-11 (8th Cir. 1999); Mayo v. United States, 413 F. Supp. 160, 162-62 (E.D. Ill. 1976).  These authorities indicate that I clearly have the authority prejudgment.

     To prevail in his motion the defendant must show that the seizure of the briefcase was illegal, and that he is entitled to lawful possession.  The Government concedes that the seizure of the briefcase was illegal.  The burden of persuasion as to the possession is by a preponderance of the evidence.  United States v. $20,295.00, 495 F. Supp. 147, 150 (E.D.N.Y. 1980).

     The defendant testified that the money was in an envelope in the brief case, and that the briefcase was closed and locked when he entered the vehicle at the fishing market.  He made a complaint at the jail to police officers when the briefcase was shown to him.  He asked where the envelope was.

     The government asserts that there was no money in the briefcase other than what was counted at the station and returned to the defendant.  There is vague and conflicting testimony as to the opening of the briefcase at the station ) whether it was unlocked or the combination had to be turned ) and how and by whom the money was counted.  The police incident report fails to make any mention of how and why the police got possession of the briefcase and the contents.

     Three police officers who were named during the hearing got the briefcase from Mrs. Aki by falsely saying that the defendant had told them to get it from her. None of the three testified at the hearing.

     I conclude that the defendant has established by a preponderance of the evidence that the $900 existed, that it was in his briefcase, that it was taken from his briefcase sometime after the police obtained the briefcase and before it was returned to Yoshibo Mori, and that he is entitled to lawful possession of the $900.00. The motion to return is accordingly granted.  Since that money is not in the possession of the government, the defendant shall have judgment against the State of Chuuk for $900.00.

IV. Conclusion
     Accordingly, I found probable cause for the police to stop and arrest the defendant, but that the warrantless search of Aki's car at the police station was unreasonable because it was not a valid inventory search, and therefore the two ammunition clips found during it must be suppressed as evidence.  I also find that Aki is entitled to the return of his $900 and that the state is liable to him for that amount.
                                                                                                                                                                                                                                                                                                           
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