KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae State v. Alfred Paulino. (Kosrae 1991)
 
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KOSRAE STATE,
Plaintiff,

vs.

ALFRED PAULINO,  
 Defendant.

Criminal Action No. 95-91

RULING AND ORDER ON MOTION TO
SUPPRESS EVIDENCE AND FOR
 RETURN OF PROPERTY

     This matter came on regularly for hearing on defendant's motion to suppress evidence and for the return of property on January 20, 1992. Present were counsel for the State, Aliksa B. Aliksa, and counsel for defendant, Robert Diemer. At the hearing, the motion to suppress evidence was taken under advisement, and the motion for return of property was granted without objection from the State.

     Based upon the testimony and documentary evidence produced at the hearing, and upon the submissions of counsel, it is the opinion of this Court that defendant's motion should be granted. This opinion sets forth the Court's reasoning.

I. FACTUAL BACKGROUND

     Though there is some dispute as to a portion of the facts in this case, the following facts have been proven to the Court.

     1. Police Officer Harry Jackson applied to this Court on September 10, 1991 for a search warrant, to search for and seize marijuana plants located in Yekurak,

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Inkoeya, Tafunsak Municipality. The Court issued the warrant based upon the officer's testimony, and upon probable cause.

     2. Yekurak, Inkoeya, Tafunsak is a single contiguous parcel of property, upon which a residence stands. The entire parcel surrounding the residence is cultivated.

     3. On September 12, 1991 at 7:00 a.m. eight police officers executed the search warrant. Upon arriving at the vicinity of defendant's residence, officer Hersey Sigrah showed the owner of the property, Mr. Charles Paulino, defendant's father, the search warrant, but did not fully explain it, and did not leave a copy of the warrant with him or with defendant.

     4. The officers found several marijuana plants near the Paulino residence, and several larger plants approximately 400 feet from the residence. The plants were seized, as were two shovels. No reciept for these items was made or given to anyone at that time.

     5. An arrest warrant was issued by this Court on September 18, 1991 for the arrest of defendant. Defendant was arrested on September 19, 1991 at approximately 6:00 p.m. Defenant was taken to the police station, and placed in solitary confinement in a windowless room overnight. He was not given dinner, drinking water, nor an opportunity to use the bathroom.

     6. On September 20, 1991 at approximately 10:00 a.m., the defendant was interrogated, and gave a confession. Defendant signed a form presented to him by

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officer Hersey Sigrah that indicates that defendant was advised of his constitutional rights and that he waived all of them. Defendant was then released from custody.

The Court granted defendant's request to judicially notice three adjudicative facts:

     1. That the "Inventory List" by the Kosrae Police of the property seized on September 12, 1991, was not served or filed until November 20, 1991.

     2. No Statement of Action by the Kosrae Police appears in the Court's file.

     3. No complete Return of Search Warrant with Statement of Action and Inventory of property seized was ever filed by the Police in this matter.

II. ISSUES

     1. Must the Court suppress evidence obtained pursuant to a search warrant issued on probable cause where the police failed to a) leave a copy of the search warrant with the person from whose premises items were taken; b) execute an inventory of property seized in the presence of the person from whom seized; and c) make a timely return of the search warrant to the Court ?

     2. Does the so-called open fields exception to the warrant requirement apply on the facts of this case?

     3. Must the Court suppress the confession of defendant because it was obtained in contravention of the defendant's constitutional rights?

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III. ANALYSIS

A. PHYSICAL EVIDENCE

 1. The Search Warrant

     Defendant has moved to suppress the evidence seized pursuant to the search warrant on the grounds that the warrant was not properly executed and returned. The State opposes the motion, claiming that a failure to make a proper execution and return on a search warrant does not warrant suppression of the evidence.

     Analysis must begin with the language of the Kosrae State Constitution, which states in relevant part:


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, support by affidavit particularly describing the place to be searched and the persons or things to be seized. Kosrae Const. Art If, section 1(d).

This section prohibits the government from searching the property of individuals at will. Kosrae v. Alanso, 3 FSM Intrm. 39, 42 (Kos. S.Ct. Tr. 1985). Here, the Police did obtain a search warrant, which particularly described the things to be seized and the place of seizure. Therefore, a presumption arises that the search warrant was valid. This is not the end of the procedure required for search warrants. The drafters of the Kosrae Code included twelve different sections on procedures which must be complied with in the application for, execution and return of search warrants. (KC 6.4301 et. seq.) Furthermore, the Kosrae Rules of Criminal Procedure specify similar procedures. KRCrP Rule 41 (d) provides in relevant part:

The policeman taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant

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and a recipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possesion or premises the property:was taken, and shall be verified by the policeman. Id.

Similarly, The Kosrae Code requires the person seizing the property to give a copy of the search warrant to the person from whose premises the property is seized (KC 6.4303(1)). Procedures for inventory and receipt under the Code are as follows:

(3) The seizing person writes the inventory in the presence of the applicant for the warrant and the person from whose possession or premises he seized the property, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises he seized... Id.

 Clearly, the officers did not comply with this section or with Rule 41(d). The question remaining for the Court is what remedy should apply when the police fail to properly execut and return a warrant. Neither Rule 41 (d) nor the Code provide a penalty for failure by the seizing officers to follow the procedures indicated.

     Defendant asserts that the proper remedy for the failure of the police to follow Rule 41 and KC 6.4303 is to exclude the seized evidence from the trial. Defendant cites three cases from the United States in support of this position. In Denton v. State 70 P.2d 135 (Okla. Cr. App. 1937), the Supreme Court of the State of Oklahoma reversed a trial Court's judgment of conviction because the defendant's motion to dismiss should have been granted. In this prohibition era case, a search warrant issued, alcohol was seized, and the defendant moved to suppress the evidence. The Supreme Court of Oklahoma reversed defendant's conviction for several reasons; specifically, that the warrant was not executed by the officer named in the warrant, and

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because the officer executing the warrant did not comply with the statute requiring a copy of the warrant to be left at the place of seizure:

A copy of said warrant shall be served upon the person or persons found in possession of any such liquor, furniture or fixtures so sei7-ed, and if no person be found in the possession thereof, a copy of said warrant shall be posted on
     the door of the building or room wherein the same are found. Id. at 141.

The language of the Oklahoma statute quoted above is similar to the language of Rule 41 (d) and KC 6.4306.

     The Denton case analyzed the state of the law in 1935 regarding the requirement that a copy of the warrant be left with the person on the premises, and found that this duty has been found to be both mandatory, and by other courts, only directory or ministerial. Denton, supra , at 143.

     The other case cited by defendant on this issue is United States v. Brougher 19 F.R.D. 79 (DC Pa. 1956), summarized at 25 ALR Fed. 262. The full text of the case is not available to the Court, but the summary shows that the facts of the case are not as similar to the present case as Denton is. In Brougher, no copy of the warrant was left, the warrant was not read nor explained to defendant, no inventory made, nor receipt given, in short, none of the requirements of Rule 41 were followed. This case adds nothing to the Denton analysis above, because the complete failure by the executing officer in Brougher is not sufficiently similar to the partial failure here.

     The State asserts that the duties described in Rule 41 (d) are "ministerial" only, meaning that if the State fails to follow them, there should be no penalty unless there are circumstances present which show bad faith, or an abuse of the police power. In support of this contention, the State cites two treatises.

     First, the State cites to 1 Ringel, Searches & Seizures, Arrests and Confessions (1984), for the proposition that the duties described in Rule 41 (c) and (d) are

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ministerial only. This source focuses on the fact that these provisions do not govern the conduct of the search itself, therefore, failure to follow them does not make the search unreasonable under the Fourth Amendment to the US Constitution. The quote goes on to warn that the directions of the Rule are mandatory, and that Courts rray suppress evidence where there is abuse by the police, or in the interests of justice. Id.

      The State also cites to 3 Wright, Federal Practice and Procedure 672, for the proposition that the State may correct an error in failing to make a full return on the search warrant. Nevertheless, this source limites the proposition to instances where the failure is partial or where the facts clearly show no abuse by the executing officers.

     The State also asserts that the harmless error rule should apply, which is made applicable to search warrant proceedings by KC 6.4312. The harmless error rule is used by Courts to avoid hearing appeals of matters which do not prejudice the defendant. The State has quoted the section correctly, but misapplies it. This is a trial court, not an appellate Court. The Court found no cases or authorities which would require the Court to find prejudice to the accused in order to suppress evidence seized pursuant to a defectively executed warrant.

     Neither counsel cited to this own Court's decision in Kosrae v. Alanso. 3 FSM Intrm. 39, (Kos. S.Ct. Tr. 1985), in which this Court stated:

This Court will apply the exclusionary rule on a case-by-case basis guided by the underlying principle that exclusion has been devised as a necessary device to protect against unreasonable search and seizure .... Further, this Court concludes that all of the evidence subsequently obtained, both physical and verbal .... are fruits of the illegal search and therefore must be excluded from evidence. All such evidence was obtained as a direct result of the unlawful search and is tainted thereby. Id. at 44.
Though Alanso involved a warrantless and defective consent, search, the Court finds that the reasoning of that case is applicable here, where the unlawfulness is in the

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execution of the search warrant. To hold otherwise would be to deprive large portions of the Kosr ae Code of their meaning.

     In determining whether to suppress the evidence, this Court must also consider the social and geographical configuration of Kosrae (Kosrae Const. Art VI, section 9). The Court has considered whether execution and return requirements are so important that they require the suppression of otherwise admissible evidence when they are not followed by the officers executing the warrant. The Court has also considered the relative expertise of the police officer's here, and the sophistication and education of Kosraens upon whom the warrant was served.

     Based upon all these considerations, it is the decision of this Court that the duties contained in KC 6.4303 and KRCrP Rule 41 are not ministerial, but must be strictly complied with. Failure to do so results in a finding of illegality, and subsequent suppression of the evidence at trial.

2. Open Fields Exception

     The State has alleged in the alternative that it did not need a warrant to search the property in this case because the plants were found in a open field, which the State claims is an exception to the warrant requirement. Thus, argues, the State, the officers did not need to follow any of the inventory or return procedures, because they could have made a warrantless search. This is an issue of first impression for Kosrae State Court.

     The rationale for this rule has been that the defendant's privacy interest in open fields is very small, as compared with the house or the bedroom, and that society is not willing to recognize these as protected areas. (Oliver v. United States. 466 U.S. 170, 80 L.Ed.2d 214, 104 S.Ct. 1735 (1984.)). Thus, the reasoning goes, the State has greater latitude in searching such areas. True, the Kosrae Const. Article 11, section 1(d)

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speaks in terms of "persons, houses, papers, and other possesions," as the areas proctected, and not in terms of open fields.

     Counsel submitted in supplemental briefs the case of FSM v. Rosario, 3 FSM Intrm. 387 (Pon. 1988), which is the only FSM precedent discussing this issue. In a brief opinion by Chief Justice King, the Court upheld a warrantless search of an open field that was located some distance from the dwelling house of defendant. The Court reasoned that since the so-called open fields exception was part of the law of the United States at the time of the Micronesian Constitutional Convention, the framers intended this exception to apply in the FSM. Id. at 388.

     The two-part test for whether the area is protected by the constitution from warrantless searches is whether defendant had a subjective expectation of privacy and whether society will recognize such expectation. (Katz v. United States, 389 U.S. 347, 351, 19 L.Ed.2d 576, 582, 88 S.Ct 507 (1967)).

     Without deciding whether the open fields exception to the warrant requirement is valid under the Kosrae State Constitution, the Court finds that the open fields exception does not apply on the facts of this case. Here, the property searched was a single contiguous parcel of land, not an upland area. The entire parcel is cultivated, and is used by the family in connection with their residence. The State suggests that since this area is not within the english common-law concept of "curtilege," the privacy interest of the defendant is very small. The focus on the curtilege area as defining the limits of police intervention has been abandoned by US Courts in favor of a focus upon the reasonable expectation of privacy in a given area. (Katz v. United States. 389 U.S. 347, 351, 19 L.Ed.2d 576, 582, 88 S.Ct 507 (1967))

     The Court notes that the concept of curtilege in Europe and the United States is very different from the areas in which Micronesians have similar privacy interests. Kosraens do not typically use fences nor "No Trespassing" signs. Often, a large

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.
portion of the family's needs will be provided for by subsistence farming near the residence. These areas fall within a reasonable expectation of privacy, which society is willing to protect. They are not "open" fields.

     Therefore, the Court holds that on the facts of this case, the open fields exception does not apply, and the evidence must be suppressed.

B. THE CONFESSION

     Defendant has moved this Court to suppress the statement taken from him by the police on two grounds. First, he alleges that the statement was obtained in a coercive manner in violation of his right against self-incrimination. Second, he alleges that the police failed to sufficiently advise defendant of his rights prior to questioning, as required by KC 17.1106.

     The standard which the Court must apply to the confession is whether it was voluntary. Voluntariness is determined by reference to the facts surrounding the confession. FSM v. Jonathan 2 FSIVI Intrm. 198, 197 (Kos. 1986). The factors for the Court to consider include:

... the age, education, intelligence and general sophistication of the accused, whether he has been advised of his constitutional rights, the length of detention, whether the questioning was repeated or prolonged, whether the accused person had been deprived of food or sleep and other facts indicating the
     atmosphere of the detention. Id.

As applied to the present case, these factors indicate that the confession was not voluntary. The defendant had just turned 18 at the time of his arrest. The younger the defendant, the more it is likely that the confession was not voluntary.

     The defendant has not completed high school, and is not a sophisticated person with experience with the police. This factor tends toward involuntariness.

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There is evidence that defendant was advised of his rights; however, it was not clear that defendant understood his rights. At the hearing the officers could not recall what had been defendant's response when he was advised of his right to counsel.

     The period of detention was overnight. This is less than the maximum allowed by KC 17.1106, but a detention of less than 24 hours may produce an involuntary confession. See FSM v. Edward 3 FSM Intrm. 224, 239 (Pon. 1987). The questioning here appeared to be brief and to the point.

     The defendant claims he did not eat at all during the detention and questioning. He arrived after dinner time, and was not served dinner, but the State claims he was served breakfast. These factors tend toward involuntariness.

     Among the other facts surrounding the interrogation, are the fact that the interrogating officer did not have a gun or police baton. The defendant was therefore not coerced by threat of physical violence. The detention, was however, in solitary confinement, without light, a toilet, or drinking water.

     In summary, the factors outlined above indicate an involuntary confession. The summarizing question for the Court is whether the Court can say that the confession was the product of a free and unconstrained choice by the defendant. From a review of the testimony and documentary evidence submitted by counsel, it seems likely that the defendant's will was overbourne by the officers, and that it was not his free and unconstrained choice. The confession will therefore also be suppressed.

IV. CONCLUSION

     The failure by the officers executing the search warrant to leave a copy of the warrant, properly execute an inventory and receipt, and to make a proper return and statement to the Court is contrary to the Kosrae Code, and is therefore illegal. The open fields exception does not apply on the facts of this case because the property

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searched was within an area protected by a reasonable expectation of privacy. The evidence so seized must therefore be excluded.

     Likewise, the confession of the defendant was not the product of a free and unconstrained choice on his part. The admission of the confession in evidence would violate defendant's right under Kosrae Constitution, Article 11, section (1)(f). !t must therefore also be excluded.

SO ORDERED, this, 2nd day of March, 1992.

_________/s/_____________
Lyndon L. Cornelius
Acting Chief Justice

Entered on: 2nd, 1992.


_________/s/______________
Clerk of Court

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