KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
EASTERN CAROLINE ISLANDS 96944
Cite as State vs. Albert, Kosrae (1989)

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KOSRAE STATE,
Plaintiff,

vs.

KILAFWA ALBERT,
ALIKNOA JOHNITHAN,
Defendant,

CRIMINAL CASE NO. 84-87
OPINION
BEFORE THE HONORABLE HARRY H. SKILLING
CHIEF JUSTICE

APPEARANCES:
For the Plaintiff:           Mr. Aliksa B. Aliksa  
                                      Prosecutor
                                      Kosrae State, FSM 96944

For the Defendant:      Mr. Patrick Olter  
                                      Public Defender  
                                      Kosrae State, FSM 96944

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CHARGE
     Defendants were charged with Possessing a Controlled Substance, ie Marijuana, under KC 13.531.

     Defendants pled not guilty and were tried in the State Court on October 15, 1987. Defendants, at the end of trial and after government rested, moved to suppress the evidence based on the ground that the search that was conducted by Police Officer Talley was in violation of Article II, Section 1(d) of the Kosrae Constitution.

FACTUAL BACKGROUND
     The facts of the case are that officer Talley, on July 29, 1987 at the Police Station walked into the defendants' jail cell and smelled marijuana smoke. He further suspected that defendants were smoking marijuana because their eyes were bloodshot.

     Upon noticing their bloodshot eyes, he began searching their room and found one small packet of marijuana. He subsequently arrested the defendants and placed them in a solitary room. Defendants were charged with violation of KC 13.531.

     Before analysing the validity of defendants' motion, it should be noted that the court has the option of avoiding this issue on the ground that it was not properly raised prior to the proceeding of the trial. Should a defendant object to the admissibility of the evidence, he should move for suppression prior to the proceeding of the trial.

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     Rule 12(b), Kosrae Rules of Criminal Procedure provides:

"(A]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial:
 
     (3) Motions to Suppress Evidence, or

     Failure by a moving party to raise objections is a waiver of rights. The case at bar is an example of such failure where defendants never, prior to trial, raised the issue of whether the search that was conducted by officer Talley was in fact a violation of Article II, Section 1(d) of Kosrae Constitution.

     While this Court could properly dismiss defendants motion for its failure to be raised in a timely manner, since constitutional issues of first impression have been raised, the Court, in its discretion, will consider the motion on its merits.

ISSUES
    (1)  Whether or not Article II, Section 1(d) of Kosrae State Constitution is in fact violated when a Police officer searches the defendants' jail cell without a search warrant.

     (2) Whether or not prisoners have an expectation of privacy in their jail cell and whether society is prepared to accept that concept as reasonable.

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ANALYSIS
     Section 1(d) of Article II of the Kosrae State Constitution, upon which defendants base their motions to suppress, provides as follows:
 
"The 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. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized."

     There is no law in Kosrae State on whether a prisoner has a constitutionally afforded expectation of privacy in his jail cell. Under U.S. law, there is a two part test. The first part is whether the defendants had actual expectation of privacy, and second, whether that expectation of privacy is one that society is prepared to accept as reasonable.

      In HUDSON vs PALMER, 468 US 517, 82 L. Ed 2d 393, 104 S Ct 3194 (1984) the Court bypassed the first part of the test and decided that society was not going to accept the idea that a prisoner could have a right to privacy in his jail cell. "The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions." Id L. Ed 2d at 403. Their reasoning was that unannounced and random searches of jail cells are necessary in

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order to maintain jail security and to prevent prisoners from escaping, being violent, smuggling contraband or even attempting to escape to commit other crimes.

     In applying this concept to our society, this Court is reminded of the case of Kosrae State vs Rickjason Mike, Kosrae State Court, Criminal Case No. 61-86, wherein this Court, in response to an oral motion of the defendant at the trial, ruled that the defendant had no expectation of privacy in his jail cell. In this case, while serving a jail sentence, the defendant escaped from his cell, burglarized the Finance Department offices and returned to his cell with money taken from the Finance Department. A Police Officer, without obtaining a search warrant, searched the defendant's cell and discovered portions of this stolen money. (This Court would also note that it has been a general practice in Kosrae to sometimes have two prisoners share one cell because of the small size of the Kosrae jail. There have also been routine searches of the cells and, in practice, the prisoners have little expectation of privacy with respect to their personal belongings.)

     There may be reasons why society in the U.S. should hold that a right to privacy in prisoner's cell is unreasonable, as applied in United States. We may also have problems similar to those in the U.S. where some prisoners bring contraband into jail and attempt to escape from jail. One factor to consider is that the degree of security in U.S. jails may be greater and more

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strict and U.S. police may treat their prisoners harsher then we treat ours.
 
     These potential problems can be solved easily where a jailer or officer can search whenever, wherever, and whomever they wish. It is to be noted that the local situation, as far as degree of security is concerned, may not be similar in Kosrae to the U.S. system. In Kosrae, our jail is more relaxed and informal than in the U.S. and, of course, our situation is therefore quite different. Still, we share the same concerns regarding contraband and escape.

     We must now look at language in our Constitution to explore the intent of the framers when they drafted the State Constitution.

     Article VI, Section 9 of Kosrae Constitution provides:

[Court decision shall be consistent with this Constitution, State traditions and customs, and the social and geographical configuration of the State.

     Thus, the framers included in our Constitution a judicial guidance provision for us to consider when there is a need.

"This section means the State Court, or any other court, should look at the circumstances and law of the State to guide its decisions. Trust Territory and United States court decisions would not direct the State Court. The State Court, however, could look at such decisions for guidance, and could follow them when it deemed it appropriate to do so when they are not inconsistent with the laws and circumstances within the state."

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would not dictate the state court's decisions. Rather, the state court could look at such decisions for guidance and may follow them when it is appropriate to do so.

     The FSM Constitution requires that "Each State shall have a democratic constitution." The framers intended for each state to guarantee to all its citizens "the freedoms which all men everywhere have a right to enjoy". SCREP No. 36, Journal of Micro Con Con at 836.

"The classic declaration of rights constitutes a prohibition of certain kinds of governmental action, i.e. a declaration of rights tells the government what it may not do vis-a-vis the individual. It should be possible to constitutionally limit governmental action as it may affect individuals while at the same allowing or requiring the government in its wisdom to protect the traditions of the community comprised of those same individuals." SCREP No. 1-83-23, Kos ConCon

     What constitutes a compelling social purpose can be determined by the facts involved in this case. Kosrae, as a State among this Nation, must determine whether it is ready to accept the concept that a prisoner has an expectation of privacy in his jail cell.
 
     In considering the language provided in our Constitution and the intent of the framers, it is clear that the framers, when they included a judicial guideline provision to consider the cultural values and the impact upon the society in reaching a

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     If it is the intent of the framers to include this judicial guideline in our Constitution, then this is a matter for the Court to consider in its discretion. If there was no such judicial guideline in our Constitution, the Court may follow foreign decisions, which have dealt with similar interpretive or legal questions. Such a course may be undesirable or unacceptable to our society. Applying a foreign concept to our society may be undesirable since much of the reasoning utilized in the various courts in the U.S. may not be relevant in our society. The Federated States of Micronesia is a nation of islands scattered over a large expanse of ocean. Custom and traditional values are important in our society. It is important that the Constitution be interpreted in light of our customs and traditions to reflect the intent of the framers. Without these precautions, words may be interpreted to mean other than what the framers intended.

CONCLUSION

          Our constitution provides full protection of individual rights, including rights of privacy, regardless of their sex, race, ancestry, national origin, language, or social status. The Kosrae State Constitution was drafted by Kosraens who were well versed in our customs and traditional values. When these framers drafted this Constitution, it was their intent to allow the court to look at the situation and circumstances in our society to help guide its decisions. Trust Territory and U.S. court decisions

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proper decision, did not intend to create an expectation of privacy for persons residing in jail cells while serving sentences imposed for the violation of criminal laws.

     If they did not have a lawful expectation of privacy, there was no unlawful search of the cell and the seizure of the marijuana was proper.

     Based upon the facts presented, I have concluded that there is a compelling social purpose in allowing warrantless searches of jail cells and that the search conducted by officer Talley was not in violation of Article II, Section 1(d) of the Kosrae Constitution.

     Accordingly, defendants' motion is denied.

DATED: March 7, 1989                      /s/          
                                                  Harry H. Skilling
                                                  Chief Justice
 
Entered this 7th day of March , 1989.
 
                                                               /s/
                                                  Cerk of Court, Kosrae
                                                                                                                                                                                                                                                                                                           
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