KOSRA E STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae v.Phillip, Kosrae St.(1992)

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KOSRAE STATE,
Plaintiff

vs

ROLSON R. PHILLIP,
Defendant

CRIMINAL CASE NO. 53-92

OPINION ON MOTION TO SUPPRESS
EVIDENCE


I. STATEMENT

     Defendant filed this motion to suppress evidence seized based upon the following: (1) Police Officer, Kiatoa Ittu, searched defendant without a search warrant, (2) warrantless search and seizure violates Article II, Section 1 (d) of the Kosrae Constitution and Article IV, Section 5 of FSM Constitution.


II. FACTUAL BACKGROUND


     On the night of June 4, 1992, defendant Rolson Phillip accompanied by two friends (one of which was Neil Timothy and another unidentified since he fled) were at Malem Elementary School. Officer Ittu, while patrolling the area that night, smelled the strong odor of burning marijuana. Officer Ittu responded to the smell by approaching defendant and the two others. While the officer was approaching this group, one of them ran away and escaped. Rolson Phillip and


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Neil Timothy remained standing. Officer then began searching defendant and found a small quantity of marijuana wrapped in a plastic bag in the possession of defendant. Defendant was arrested and brought to the Police Station where he was charged with possession of a controlled substance under KC 13.531. The fact that defendant was searched and the marijuana was seized without a warrant is undisputed by the parties.

III. DISCUSSION


     This matter came before me on September 27th, 1992 on a motion to suppress evidence seized from defendant on the night of June 4th, 1992 at Malem Elementary School.


     Government, in its opposition motion argued that the search in this action falls within the exigent circumstances exceptions. Cessal, Federal Criminal Trials 2d, Second Edition, Section 229 p. 59 states, "A warrantless search based upon probable cause is permitted when there is some exigency or a compelling urgency for the protection of the police or the public, or to prevent the destruction of contraband or evidence.


     The question of whether exigent circumstances exist is largely a factual one and review of the Court's finding of exigent circumstances is based on specific findings of fact as required by FR Cr P, Rule 12 (e). United States v. Brack (1982 CA9) 667 F 2d 1311.

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IV. ISSUE


     Whether or not the facts in this case constitute exigent circumstances in order to justify the warrantless search, or if not, whether the warrantless search violates defendant's constitutional rights and thus justifies the application of the exclusionary rule to the evidence of marijuana.


V. ANALYSIS


     Although Kosraean and FSM case law will be applied to this constitutional analysis, there are no cases within the FSM specifically discussing exigent circumstances. Further, since it has been stated that the Kosrae Constitution is based on the FSM Constitution, and if the FSM Constitution is based on similar language to U S Constitution, we can assume that the framers intended for the provisions to have similar meanings. Therefore, this decision will turn on US case law which was current around the time of the framing of the FSM Constitution.


     Search without a warrant is per se unreasonable and unconstitutional and is justified only upon certain exceptions. The burden is always on the government to justify warrantless search and seizure. There is an almost absolute unconstitutional bar to warrantless arrests, search, and seizure with only limited exceptions. State v. Ringer, 100 Wn 2d 686, 674 P 2nd 1240 (19$3).


     A. Privacy interest

In order to show a violation of this constitutional provision, it must be

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shown that defendant, in asserting a property or possessory interest in the thing searched or seized, also had a legitimate expectation of privacy in the area searched. In this analysis, any expectation of privacy would apply. U.S. v. Jacobson 466 US 109, 80 L Ed 2d 85, 104 S Ct 1652 (1984). The federal rule indicates that a person must have a legitimate expectation of privacy surrounding the thing seized. To establish a legitimate expectation of privacy, defendant must show that he had a personal expectation of privacy and that this expectation was one society is prepared to accept as reasonable. Rakas v. Illinois. 439 US 128, 58 L Ed 2d 387, 99 S Ct 421 (1978).


     In FSM v. Tipan, 1 FSM Intrm 86 (Pon 1982), the Court cited Katz v. United States, [389 U S 347,361,88 S Ct 507,516,19 L Ed 2d 576 (1967)] which states,

Constitutional Protection of the individual against unreasonable searches and limitations of the powers of police apply wherever an individual may harbor a reasonable expectation of privacy.

     Washington State extends the federal rule to "those privacy interests which citizens of this state have held and should be entitled to hold safe from governmental trespass absent a warrant." State v Myrick, 102 Wn 2d 506, 688 P 2d 151 (1984). Kosrae State Court herein will determine the extension of the federal rule which citizens of Kosrae hold or should be entitled to hold safe from governmental trespass without a warrant.


     It is appropriate for this Court to apply an evaluation of the Totality of the circumstance in order to determine if defendant or an individual had a reasonable expectation of privacy. Although one does not have a legitimate expectation of privacy in things which are held out to the public, certainly in the evaluation of the totality of any circumstances, a Court would find a legitimate

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expectation of privacy in the person of a citizen of this state. The constitutional protection extends to contents of closed containers within one's possession and to those items one carries on ones person as in the case at bar.

     A citizen has the right to protection of privacy even in a public place. The burden is on the government to justify a search without a warrant. FSM v. Tipen 1 FSM Intrm 86 (Pon 1982).


     No right is held more sacred, or is more carefully guarded by the constitutional law than the rights of every individual to the possession and control of his own person free from all restraint or interference of others unless by clear and unquestionable authority of law. FSM v. Tipen citing Union Pacific Railroad Co. v Bostford 141 US 250, 251,11 S Ct 1000, 1001.


     Since it is clear that all citizens of Kosrae have a legitimate expectation of privacy against unreasonable searches of there persons, the Court must now turn to the definition of exigent circumstances which would justify a warrantless search and seizure as argued by the government.

     B. Exigent circumstances

     All warrantless searches are unconstitutional unless they fit into one of the recognized exceptions to the warrant requirement. Here, the government asserts the "exigent circumstances" exception. Any warrantless search is presumed to be illegal unless there are exigent circumstances in addition to probable cause. Hornblower v. Florida. (1977 Fla) 3351 So 2d 716.

     "Exigent circumstances" are those circumstances sufficient to excuse an officer from the requirement of obtaining a warrant to conduct a search for which he has probable cause. In addition to probable cause, for search and

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seizure, there must be exigent circumstances in which it would not be practicable to obtain a warrant. 68 AmJur 2d, 697. Coolidge v. New Hampshire, 403 US 443, 29 L Ed 2d 564, 91 S Ct 2022.


     However, circumstances where a warrantless search was found constitutional are (1) when probable cause to search exist; (2) government satisfies its burden of demonstrating that the exigencies of the situation made search without a warrant imperative. State v. Allison, 298 NC 135, 257 SE 2d 417. Exigent circumstances permit police to make warrantless entry to effect arrest where exigencies of the situation make that course imperative. In Terry v. Ohio, the U S Supreme Court stated that exigent circumstances are situations where immediate action is required for personal safety or to prevent destruction of evidence and delay to get a warrant is not possible. 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868 (1968)

     C. Hot pursuit

     Normally, exigent circumstances are classified with the hot pursuit, evanescent evidence or other emergencies category for exceptions to the warrant requirement. Although there is no "general emergency exceptions", police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may pursue the suspect into a private dwelling. Example of the hot pursuit exception are felons fleeing from the scene of an armed robbery because police suspected them to be carrying weapons. The U S Supreme Court upheld a search and seizure on the basis of exigencies of the situation in a case which elaborates a "hot pursuit" justification for the warrantless search of the type in Coolidge v. New Hampshire (supra).


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     Warrantless intrusions may also be justified where police are faced with imminent destruction of evidence, the need to prevent the suspect from escaping or the risk of danger to the police officer or others. In the absence of hot pursuit, there must be at least probable cause to believe that one or more of the other justifying factors were present and the gravity of the crime and the likelihood that the suspect is armed must be considered in assessing the risk of danger. Exigent circumstances include danger of violence and injury to police or others, risk of the subject escaping, or the probability that, unless taken on the spot, evidence will be cancelled or destroyed. State v.  Jackson (Iowa) 210 NW 2d 537. There is no evidence that defendant Phillip was armed or about to flee from police during the night in question. Defendant was standing still with Neil Timothy when Officer Ittu searched him.


     In Smith v. State (1982 Miss), the Court considered the following elements of "exigency" doctrine (1) police must have reasonable grounds to believe that . there is an immediate need for their assistance for protection of life or property, (2) search must not be primarily motivated by intent to arrest and seize evidence and (3) there must be some reasonable basis, approximating probable cause to associate an emergency with the area or place to be searched. 419 So 2d 563.


     Government argued that it is possible that defendant could have destroyed the evidence if the Officer had sought to obtain a search warrant from the Court. The government could make this argument in virtually all criminal cases. However, police should not make warrantless searches and seizures indiscriminately. Such exceptions should be reserved for bona fide emergencies. There is no reason to believe that defendant would have destroyed or smoked all the evidence before a warrant could be obtained. It was not observed that



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defendant was in the process of destroying the evidence when the Officer pursued him.


     There is no emergency in the case at bar. The government has produced no evidence as to why a warrant could not have been sought. If the officer had sought a warrant, it is likely he could have gone to the defendant's home and seized the evidence. It appears that in this case the primary motivation of the search was motivated by intent to arrest and seizure evidence as suggested in the Smith case (supra).


D. Misdemeanors in officers presence

     It is well founded in many states that in order for an officer to arrest a suspect without a warrant for a misdemeanor offense, the offense must occur in the officers presence. Columbus v Holmes held that a police officer can arrest without a warrant for an offense not committed in his presence only if the crime is at least technically a felony. 107 Ohio App 391, 8 Ohio Ops 2d 376. If the offense is not a felony, officers cannot arrest without a warrant unless the offense is committed or attempted in his presence. Johnson v United States, 333 US 10, 92 L Ed 436, 68 S Ct 367. (And under Washington law: Carroll v United States 267 US 132, 68 L Ed 543.) The same principle is held in Arizona, California, Florida, Maine, Minnesota, Mississippi, Oklahoma, and West Virgina.


     If an Officer knows facts that show a misdemeanor has been committed, but it was not committed in his presence, he must appear before a magistrate, make a written complaint under oath, obtain a warrant and make arrest under the warrant. Fong v Superior Court, Wash 2d 601, 188 P 2d 125, quoting State v Hughletl, 124 Wash 366, 214 P 841. In a misdemeanor case, officers may not


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arrest without a warrant except where the crime is being committed in his presence. Acts must be known to the officer at the time of their commission, through his sensory perceptions and inferences from those sensory perceptions must constitute the offense. Smith v Hubbard, 253 Minn 215, 91 NW 2d 756. In other words, the officer must see with his own eyes the commission of the misdemeanor offense. People v Bradley, 152 Cal App 527, 314 P 2d 108. An officer who arrests a misdemeanor without a warrant, acts at his peril since the arrest will be unlawful if the offense was not actually committed even though the arrest is reasonable and done in good faith. Edgen v Talley, 169 Ark 662, 276 SW 591, 42 ALR 1194. Arrest without a warrant cannot be made on mere suspicion. Garske v United States, (C A 8th Minn), 1 F 2d 620.


     At common law, the right to arrest for a misdemeanor committed in the presence of the officer was limited to offenses that amounted to breach of the peace. State v Lutz, 85 WVa 330, 101 SE 434. If the offense is less than a felony, arrest without a warrant was not allowed for the purposes of apprehending the offender but for immediate preservation of the public peace. So if there is no breach of the public peace, a warrant is required. State v Lutz. This court agrees with the principle in Lutz. In order for a police officer to lawfully arrest or search and seize evidence in a misdemeanor offense, the offense must be of the breach of the public peace type and occur in the officers presence. Otherwise, a warrant must be obtained to search or arrest a misdemeanor offender.


E. Evanescent evidence

     Police may seize without a warrant, evidence that is likely to disappear before a warrant can be obtained. Some of the examples of evanescent evidence


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which may justify a warrantless search and seizure are: contaminated foods, medicine, children in trouble, a need to take the blood alcohol level and burning fires. In the need to take the blood for alcohol level on a critically injured and unconscious person who was a party to a fatal accident, the evanescent character of the evidence is inherent in its nature in that the blood alcohol drops shortly after drinking stops. Schmerber v. California, 384 US 757, 86 S Ct 1826, 16 L Ed 2d 908 (1966).


     The U S Supreme Court stated in Cupp v. Murphy, that the intrusion must be limited and the evidence must be in imminent danger of physical dissipation. Under those circumstances the perishable nature of the object sought might be validly considered exigent circumstances if, (1) there is probable cause for arrest but no formal arrest has occurred; (2) if the suspect is reasonably believed to be in the actual process of destroying "highly evanescent evidence"; (3) then the evidence may be preserved if this can be accomplished by a search which is "very limited" as compared to a full search of a person. 412 US 291, 93 S Ct 2200, 36 L Ed 2d 900 (1973).


     F. Prior conviction

     Government further claimed that the police had reason to believe they had probable cause to arrest defendant based upon his a prior conviction and that defendant Phillip was still serving his probationary terms. This court is not convinced by the government's position. Knowledge of a prior conviction is no basis for arrest or a warrantless search and seizure. In Adams v State. 137 Tex Crim 43, 128 SW 2d 41, the court held that mere suspicion based on the arrested persons bad reputation and his presence in the vicinity where the crime occurred
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does not equate to probable cause.


     A jail record and defendant admitting to previous commissions of the same offense do not enlarge the authority of the arresting officer to justify an illegal arrest without a warrant. Larson v Feeney, 196 Mich 1, 162 NW 275. Therefore, knowledge of a prior conviction is no basis for warrantless search and seizure or arrest without a warrant.


     G. Warrant requirement

     An affidavit sets forth circumstances that allows a magistrate to make a determination of probable cause independent of the officer's conclusions. Barring exceptional circumstances, officers must obtain a warrant prior to search in order to motivate them to assess their case and to get a perspective from the very start.


     A violation of the Fourth Amendment's guarantee against unreasonable search and seizure was found where no reason is offered for not obtaining a search warrant except the inconveniences to the officer and some slight delay necessary to prepare the papers and present the evidence to a magistrate. Chapman v. United States 365 U S 610, 5 L Ed 2d 828, 81 S Ct 776.


     It is helpful for the Court to determine if law enforcement officers have squandered an overt opportunity to obtain a warrant. In United States v. Chuke, the defendant asserted a deliberate bypass of a warrant which was supported by a finding that a realistic opportunity existed to procure one. The Chuke case stated that the government must come foreword with objective evidence tending to justify the deviation from normal procedures, 554 F 2d 260 (6th Cir 1977).


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     H. Probable cause

     Black's Law Dictionary defines probable cause as "Reasonable Cause; having more evidence than against. The apparent state of facts found to exist upon reasonable inquiry as is convenient and proper which would induce a reasonable intelligent and prudent man to believe the accuse had committed the crime. State v. Jones held that mere suspicions or belief, unsupported by facts or circumstances is insufficient. 435 P 2d 317, 319.


     Probable cause permits an officer to arrest a defendant for a felony without a warrant if the Officer has more evidence favoring suspicion that the person is guilty of a crime than evidence against the suspicion. Migert v. Superior Court of San Mateo County, 254 CA 2d 420, 62 CAI Rptr. 217, 221.


     In Paula v State, the Court stated that probable cause involves probabilities that are not technical but factual practical considerations of every day life upon which reasonably prudent men act. Fla App 188 So 2d 388, 389.


     The FSM Constitution, Article IV Section 5 must be used to determine reasonableness for issuance of a warrant for search and seizure. The standard of probable cause of issuance of a warrant in the FSM Constitution implies that no search or seizure is reasonable unless justified by probable cause. Ludwig v. FSM 2 FSM Intrm 27, 32.


     Probable cause means that it is more likely than not that the crime has been committed. Even a search incident to a lawful arrest is limited to preventing the accused from reaching concealed weapons and to prevent injury to the police or others and from destroying evidence. Ludwig v FSM (supra).


     Probable cause to believe that a crime has been committed and that a particular person has committed the crime is not in itself sufficient to justify a


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warrantless search. The establishment of probable cause is nevertheless critical to any unconsented search. Without probable cause, no search warrant could be obtained and no unconsented search may be conducted. FSM v. George, 1 FSM Intrm 79, 86 (Pon 1982).


     Kosrae v. Alanso held that a search without a warrant was unreasonable and that the Court must protect this right from well intentioned but unauthorized government action. 1 FSM Intrm 39. FSM v. Nedlic, required the government to produce clear proof and stated that a warrantless search absent probable cause was inadequate. Criminal Action No. 1984-2503 Kos. The U.S Supreme Court said "It is axiomatic that an incident search may not precede an arrest and serve as part of its justification." 392 US 40, 88 S Ct 1889, 20 L Ed 2d 917 (1968).


     As to whether the smell of marijuana constitutes probable cause, it was found in United State v. Garcia Rodriguez that the odor of marijuana alone was probable cause for search without a warrant if the policeman who identifies the smell has expertise in identifying marijuana by smell. (1977 CA 9 Cal), 5588 F 2d 956. Thus, the question now is whether evidence was offered by the government to indicate that the officer is an expert in this area. There was no evidence offered on this point at the hearing.


     In State v Dorson, the Court found that although the smell of marijuana may establish probable cause, exigent circumstances were not found that would justify a warrantless entry into a home since odor alone does not authorize search and seizure in a home without a warrant. State v. Dorson (1980, Hawaii) 615P2d740.


     The mere fact that Officer Ittu smelled the odor of burning marijuana is


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inadequate and does not in itself justify the warrantless search, absent a showing of the officers expertise in identifying the smell and attaching the smell to this particular defendant.


VI. CONCLUSION

     The question of,whether the odor of marijuana alone is sufficient to establish probable cause is unclear-the cases are divided. Those cases that do hold the odor alone sufficient are relying on expert training of the officers. It was not shown that the officer in the instant case can be qualified as an expert. Therefore, probable cause cannot be found to have existed here.


     Even if the government could establish probable cause, they have failed to show an emergency or exigent circumstances in this case. The exigency that existed to justify a search without a warrant included cases where police were in hot pursuit of a fleeing felon, the accused was in the process of destroying the evidence, or there was such an emergency as to place the safety of an individual or property at stake. No emergency existed in the facts of this case. No evidence or testimony reflects that defendant was in the process of destroying the evidence. The likelihood of defendant destroying the evidence was remote.


     Further, this court holds that in cases of misdemeanor offenses, in order for police to justify a warrantless search or arrest, the offense must be of the "breach of peace" type and the officer must personally observe the commission of the misdemeanor offense.


     Therefore, this court concludes that the government has failed to meet the burden of proof in establishing facts that would indicate exigent circumstances


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sufficient to justify an exception to the warrant requirement. Thus the warrantless search of defendant on June 4, 1992 violated his constitutional rights. A warrantless search, even with probable cause to suspect a misdemeanor offense, violates defendants constitutional rights under Article IV, Section 5 of the Kosrae Constitution.


     Motion is granted to suppress the evidence of marijuana and all the fruits of the illegally obtained evidence will be excluded.


SO ORDERED the 16th day of December, 1992.


                                                        /s/                 
                                   Harry H. Skilling
                                   Associate justice


Entered this 16th day of December, 1992.

                                                       /s/                   
                                    Chief Clerk of Court, Kosrae


                                                                                                                                                                                                                                                                                                           
the special early retirement plan, established by S.L. No. 4L-38-97, for the duration of said program and pursuant to an agreement between the Corporation, as executed by the Board, and the state government, as executed by the Governor; PROVIDED that the state government shall remain responsible for the financial costs for the repayment of the ADB loan associated therewith; PROVIDED FURTHER that the government may place reasonable restrictions on eligibility and quotas for inclusion in the plan of employees transferred to the Corporation commensurate with the restrictions and quotas of the overall state program. (7) All deeds, bonds, agreements, instruments, and working arrangements existing immediately before the commencement of this chapter affecting any of the undertakings which are transferred to the Corporation by the government shall continue in full force and effect against or in favor of the Corporation. Any proceedings or cause of action pending or existing immediately before the commencement of thi