KOSRAE STATE COURT
FEDERATED STATES OF MICRONESIA
Cite as Kosrae v. Tulensru (1992)
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KOSRAE STATE,

 Plaintiff,
vs.

RAIMOND TULENSRU,

 Defendant,

CRIMINAL ACTION NO 37-92

RULING ON MOTION TO SUPPRESS
  EVIDENCE; TAKING OF JUDICIAL NOTICE

I.  STATEMENT

     This matter came before this Court on a motion to suppress physical evidence seized from defendant's property. On August 14, 1992, counsels submitted the motion on the memoranda filed to date. The Court is of the opinion that the evidence was seized in violation of the requirements of the Kosrae Constitution, and that the socalled plain view doctrine is inapplicable to the facts of this case. The physical evidence in this matter will therefore be suppressed.

II. FACTUAL BACKGROUND

     On May 16, 1992, Police Chief Heinrich Pafik received a tip from a source not disclosed to the Court that marijuana was growing on defendant's property outside defendant's bar located at Srungkusra, Tafunsak. Chief Palik then went to the bar to investigate, and from an area open to the public for purposes of a drinking establishment viewed the plants himself.

     The police then orally requested this Court for a warrant to search the premises. No affidavit, nor written application was filed at the time of the application. The Court

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issued an "oral" warrant. The police then entered defendant's property and seized physical evidence consisting of several marijuana plants.

     Defendant filed a request for judicial notice on June 12, 1992. Defendant requested judicial notice of the fact that no affidavit was submitted in support of the application for the warrant in this case. KRE-201 (d) requires the Court to take judicial notice if the Court is provided with the necessary information. The Court hereby takes judicial notice of the fact that no affidavit was filed in support of the search warrant in this matter.

III. ISSUES

     A. Is KC §6.4304 unconstitutional in that it allows issuance of search warrants without a supporting affidavit?

     B. Is the evidence nevertheless admissible because it was in plain view of officers in a position where they had a right to be?


IV. ANALYSIS

A. Introduction

     The burden of persuasion is usually borne by the moving party, in this case, the defendant. However, a presumption arises in suppression hearings and it depends primarily upon whether the physical evidence was seized pursuant to a valid search warrant. If there is no warrant, the State has the burden of proving that the seizure falls within one of the exceptions to the warrant requirement. FSM v. Tipen 1 FSM Intrm.

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79, 85 (Pon. 1982). If a warrant has issued, the search is presumed reasonable and the burden shifts to the defendant to prove that the warrant is invalid.

     Here, the Court received an oral application for a search warrant , and such applications are provided for under the Kosrae Code. KC § 6.4304. Therefore, defendant first bears the burden of proving that the Code's oral application provisions are unconstitutional. If the Court finds that KC § 6.4304 is unconstitutional, then the burden would shift to the state to prove that the seizure falls under one of the recognized exceptions to the warrant requirement. Here, the State has alleged the "plain view exception."

B. Is KC §6.4304 Unconstitutional?

     Counsel did not cite, and the Court is unaware of any FSM cases which discuss the constitutional requirement of an affidavit in search warrant proceedings. The Committee Reports from the Micronesian Constitutional Convention do not clearly address the issue. The meaning of the provision is apparently unambiguous. Nevertheless, according to the standard constitutional analysis, a departure from the US Constitution is seen as making a clear departure from US policy. The statute thus may be seen as unconstitutional.

     Because a warrant was issued in this case, defendant bears the burden of proving that the search was illegal. Defendant asserts that the Kosrae Constitution prohibits the use of oral warrant applications, and that the fruits of any seizure made pursuant to a warrant issued without a supporting affidavit must be suppressed. Counsel for the State did not address this issue at all in its opposition papers, instead relying solely upon the "plain view" exception to the warrant requirement.

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     1. Lanquage

          a. The Statute.

 The statute at issue here is KC §6.4304, which provides as follows:

A person who seeks issuance of a search warrant personally appears before the Court and makes application setting forth the grounds for issuance. The Court may receive a supporting statement under oath. The application and statement may be either written or oral. If the Court finds practicable, it places an oral application in writing for signature and oath by the person making it. If the Court is satisfied that grounds for the application exist or that there is probable cause to find that they exist, it issues a search warrant identifying the property and naming or describing the person or place for search. Id.

This section attempts to provide a degree of flexibility in the issuance of search warrants. Though the Court has long been reluctant to issue warrants upon oral application, the Court need not reduce the statements and application to writing if it deems them impracticable under the Code. Defendant asserts that this amount of
flexibility is unconstitutional.

     The source of this Code provision is 12 TTC §105. The two sections are nearly identical with only minor changes. The Trust Territory Code allowed for oral
applications as does the Kosrae Code.

          b. Kosrae Constitution

     The relevant provision of the Kosrae State Constitution is 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 upon probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. Kosrae Const. Art 11, section 1(d).

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     Defendant asserts that this provision is unambiguous, and therefore that the constitutional analysis should stop there. See e.g. Ponape Federation of Cooperative Associations v. FSM 2 FSM Intrm. 124, 127 (Pon. 1985). Here the language is "A warrant may not issue except upon probable cause, supported by affidavit . . . ". This is a clear and unambiguous statement.

          c. Definition of Affidavit

      The constitutional provision is clear because the definition of affidavit is so widely accepted.

     An affidavit is a written statement under oath taken before an authorized officer.
The very definition of an affidavit requires that it be in writing, so that, properly speaking, there is no such thing as an unwritten affidavit. 2 C.J.S. Affidavits 922, 939.
Black's Law Dictionary (5th ed.) defines affidavit similarly:

Affidavit. A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation. Id. at 54.

It is clear that an affidavit was not submitted to the Court in this case. An affidavit is by its terms written. If the statement is oral, even if under oath, it is not an affidavit.

     2. Framer's Intent

 Though Article II section 1(d) is clear and unambiguous in its statement of the warrant requirement, the following analysis further supports the Court's conclusion that an affidavit must support a warrant application.

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     a. Con Con Journal

     Neither the FSM nor the Kosrae Constitutional Convention Journals clearly states that the framers intended to depart from Trust Territory practice in this area. The framers of the Kosrae Constitution stated that Article I I section 1(d) was intended to be an exact copy of the FSM Constitution, Article IV, section 5:

The rights enumerated in Section 1 of the proposal are identical with those enumerated in Article IV of the Federated States of Micronesia Constitution except that Section 1(1) appropriately places the right to travel and migrate on an intrastate level. SCREP 1-83-23 (March 10, 1983) Journ Kos. Con. Con. 524.

The framers of the FSM Constitution provided a little more background than their State counterparts, though their reports do not discuss the affidavit requirement. The following language is contained in SCREP 23:

This Section seeks to secure that balance by a categorical denunciation of unreasonable searches, seizure, invasion of privacy, or interception of communication by any means, and recognizes the legitimacy of searches, seizures, invasion of privacy or interception of communication authorized by warrants:

1. based on probable cause and supported by affidavit, and
2. particularly describing the place to be searched and the person or things to be seized.

In this way the evils of the open-ended, indiscriminate search, seizure, invasion of privacy or interceptions [sic] of communication and that a reasonable search, seizure, invasion of privacy or interception of communications, based upon a proper warrant, is permissible. SCREP 23, Journ. Micro. Con. Con. 794.

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     b. Written Record of Probable Cause

     Defendant argues that the affidavit provides a necessary written record of probable cause. This is supported by two policies. First, that the judge is sure of the precision of facts relied upon to show probable cause; and second to provide a record for the reviewing Court. Kosrae State Court is a court of record. Kosrae Const. Art VI, section 2. The record for the reviewing Court is the most essential part of defendant's argument. Without an affidavit, a reviewing Court cannot be sure of the facts upon which the warrant was granted.

     c. Comparison with US Constitution

      The Court's reasoning is further strengthened through negative inference by reference to the counterpart in the U.S. Constitution. The relevant language from the US Constitution is as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 4th Amend. US Const.

The principle difference between the US and Kosrae Constitutions is the basis for the warrant. The US Constitution allows warrants to issue on "Oath or affirmation," and the Kosrae Constitution requires an "affidavit."

     Thus, under the doctrine enunciated in Tammow v. FSM 2 FSM Intrm. 53, (App. 1985), the difference in these provisions likely "represents a conscious effort by the framers to select a road other than that paved by the United States Constitution." Id. at 57.

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     All available sources of interpretation indicate that the statute is unconstitutional. The plain language of the Constitution, the differences between the US and Kosrae Constitutions, and due process require that warrants issue only upon a written, sworn statement demonstrating probable cause.

C. Is the Evidence Admissible Under the Plain View Doctrine?

     The State has asserted here that the officers did not need to seek a warrant because the evidence was in plain view of the officers who were standing in a place where they had a right to be. The defendant argues that the plain view exception does not apply on the facts of this case. There is no factual dispute concerning what happened on the days in question. The officers received a tip, went to the bar, saw the marijuana, orally applied for a warrant, received an oral warrant, and seized the evidence.

1. FSM Cases

     The FSM Supreme Court recognized the "plain view" exception to the warrant requirement in FSM v. Mark 1 FSM Intrm. 284 (Pon. 1983). In that case, police officers visited a residence to investigate an unrelated arson matter. When the officers went to the back of the house, they saw marijuana growing in the back yard of Mr. Mark, and seized it. The FSM Supreme Court trial division held that the evidence would not be suppressed because the officers were in a place where they had a right to be, and the seizure did not constitute an additional invasion of privacy. Id. at 294. Note also that the discovery of the marijuana was inadvertent; i.e. the officers did not go to the property looking to find marijuana.

     Thus, in support of his motion in the present case, defendant argues that "inadvertence" is a prerequisite to the application of the "plain view" doctrine. This

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assertion is supported by the facts of the FSM and Kosrae cases, but is not discussed by the Courts in either.

     Indeed, in Kosrae v. Paulino 3 FSM Intrm_ 273, 276 (Kos. S.Ct_1988), this Court issued a warrant similar to the one at issue here. The officer was standing in the public road, and saw a marijuana plant on top of a house- The Court held that this search did not violate the defendant's right to be free of unreasonable search and seizure. Note that in this case also the discovery of the marijuana was "inadvertent." The officer in that case applied orally for a search warrant and received it. The search therefore in Paulino was supportable based upon the probable cause determination made by the judge. Here, the State obtained an oral warrant on oral application, similar to the Paulino, but here the discovery of the evidence was not "inadvertent."

     Counsel for the State cites FSM v. Rosario, et. al. 3 FSM Intrm. 387 (Pon. 1988) in support of its position that the evidence falls under the "plain view" exception to the warrant requirement. That case, however, was decided not on the basis of the "plain view" exception, but rather on the "open fields" exception. Id. at 388. It is therefore inapplicable to the present case.

     Counsel for the State also similarly cites FSM v. Rodriguez 3 FSM Intrm. 368, 370 (Pon. 1988). In that case, the government seized marijuana from public land claimed by defendant. The Court apparently decided the case on the basis that the defendant made no effort to hide the plants from the public, and therefore he could have no privacy interest in the plants. Id. Both opinions cited by the government are uncharacteristically brief, and stem from a single enforcement effort between Pohnpei State and the US Drug Enforcement Agency. In both Rosario and Rodriguez the police did not attempt to obtain a warrant.

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     It is interesting to note here that the only exceptions to the warrant requirement discussed by the framers of the FSM Constitution were the search incident to a lawful arrest and a consent search. See SCREP 23 Journal of Micronesian Con Con, p. 794.

2. U.S. Cases

      a. Officer In a Place Where He Has the Right to Be

     United States case law at the time of the Micronesia Con Con established a three-part test for the applicability of the 'plain view exception to the warrant requirement. First, the officer must view the evidence from a place where he has a right to be. Harris v. US (1968) 390 U.S. 234, 19 L.Ed.2d. 1067. Here, there is no factual dispute that the police had a right to be in the parking lot of the bar. Though it is private property, it is nevertheless open to the public for business purposes.

     b. Inadvertence

     The second requirement -- inadvertence -- is stated best in Coolidge v. New Hampshire. 403 U.S. 443, 29 L.Ed. 2d 564 (1971). There, the Court could not agree upon a majority decision, instead issuing a plurality decision. The Court's failure to agree completely is an indication of the confused state of US search and seizure law. A majority were able to agree that under certain circumstances the police may seize evidence in "plain view" without a warrant. See Annotation, 29 L.Ed.2d 1067, 1071.

     Coolidge involved the search and seizure of an automobile pursuant to an arrest and search warrant. The warrants were issued by the District Attorney who later prosecuted the case, and the Court held that they were invalid because they were not made by a neutral factfinder. Id. 29 L.Ed. 2d 572-574. The burden shifted to the Government to prove that the search and seizure of a locked automobile parked in the defendant's driveway was otherwise lawful.
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     The Court held that the automobile search was not justified under the doctrine of search incident to a lawful arrest. A plurality of the Court found the 'plain view' doctrine in applicable to the facts of Coolidge In an annotation describing the effect of Coolidge. the following has been stated:

Despite some strong dissenting opinions urging a contrary result, the Supreme Court has held that where the seizure of objects observed in 'plain view' is not based on a valid warrant, the seizure i s unconstitutional unless there are 'exigent circumstances' justifying the failure to obtain a valid warrant, and a plurality of the Supreme Court has concluded that the 'plain view' doctrine cannot serve to legalize a seizure without a valid warrant unless the discovery of evidence through a 'plain view' is 'inadvertent.'

[it] was also held . . . that since the police knew of the presence of the automobile and planned all along to seize it, there was no 'exigent circumstance' to justify their failure to obtain a warrant. Id. 1074, 1076.

Applying this standard to the case at hand, it is apparent that the police knew about the marijuana, and therefore, the discovery of the evidence was not "inadvertent" as it was in Mark and Paulino. supra.

c. Contraband
     The third requirement for the application of the 'plain view' doctrine is that it must be immediately apparent to the officer that the items are evidence of a crime, contraband or otherwise subject to seizure. There is some language in the Coolidge opinion that indicate that contraband might be treated differently than other types of
evidence. See Coolidge, supra, at 29 L.Ed.2d 587. In a footnote to the Coolidge
opinion, the plurality distinguished its own holding in Ker v. California. 374 U.S. 23, 10 L.Ed. 2d. 726, at least in part on the ground that the evidence in Ker was contraband.

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     In Ker, the Court had held that a search and seizure were justified under the "search incident to arrest" and "plain view" exceptions to the warrant requirement. In that case, the arresting officers had neither a search nor arrest warrant, but had formulated probable cause to believe that the defendant was in the process of committing a crime at the time of the seizure. When the officers found marijuana in defendant's kitchen, away from the area where defendant was arrested, they seized it. The Court upheld the seizure.

      An annotation in 50 AmJur2d 542, lists the states in which courts have previously refused to suppress evidence, even though unlawfully obtained, because it was contraband, and therefore not the proper subject of property rights. See, State v. Schoppe (1915) 92 A. 867; 50 ALR2d 542.
      The United States Supreme Court has held quite differently than the pre-exclusionary rule cases cited in the annotation above. In U.S. v. Jeffers (1951) 342 US 48, 96 LEd 59, 72 S.Ct. 93, it was held that the fact that the goods in which a defendant has a proprietary interest are contraband does not defeat his standing to question the constitutionality of a seizure thereof. The Court stated:

It is urgently contended by the Government that no property rights within the meaning of the Fourth Amendment exist in the narcotics seized here, because they are contraband goods in which Congress has declared that "no property rights shall exist."

We are of the opinion that Congress, in abrogating property rights in such goods, merely intended to aid in their forfeiture and thereby prevent the spread of the traffic in drugs rather than to abolish the exclusionary rule formulated by the courts in furtherance of the high purposes of the Fourth Amendment. lei. 342 U.S. at 52-54.

Thus, it is clear that under modern analysis, the mere fact that the evidence is contraband does not justify a warrantless seizure.

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     The fact that the evidence is contraband may be relevant, however, to a showing of exigent circumstances. For example, it is more likely that a suspect might destroy contraband rather than non-contraband evidence. There was no such showing here, however. No exigent circumstances are present on the facts of this case, such as likelihood of destruction, removal, or transportation of the evidence, hot pursuit of a suspect, violence, or other similar circumstances. See Id. at 52.

     Thus, because the police knew about the evidence the discovery of the evidence was not inadvertent. The state has not shown any exigent circumstances. Therefore, the plain view exception to the warrant requirement does not apply on the facts of the present case.

V. CONCLUSION

KC § 6.4304 is unconstitutional insofar as it allows the issuance of a warrant without an affidavit. The plain view exception to the warrant requirement does not apply on the facts of this case because even though the officers had a right to be where they were, the discovery and seizure was not inadvertent; i.e. the officers knew that the evidence was there because they had received a tip.

     The physical evidence in this matter will therefore be suppressed and excluded from trial in this matter. Defendant's motion is granted.

SO ORDERED, this 17th day of August,1992.



                                            /s/              
Lydon L. Cornelius
                                                           Chef Justice


Entered on:___8/18/92                                   /s/                                
                                    Clerk of Court
                                                                                                                                                                                                                                                                                                           
nd is advised of the impact of its policies and procedures on such individuals. Source: S.L. No. 3L-39-93 7-1, 7/29/93 4-146. Fiscal and operational integrity. ( The Board shall take all measures necessary to assure the fiscal and operational integrity of the Plan and shall review the Plan no less often than quarterly for such purposes. Reviews shall include utilization reviews, reviews of financial statements, reviews of premium and benefit schedules, and reviews of operational policies and procedures. In particular, the Board shall take all measures necessary to assure that: (1) Its policies and procedures support the health care objectives of Pohnpei; (2) Payments for benefits do not exceed revenues to the fund; and (3) Only payments for benefits that the Plan is obligated to provide are made. Source: S.L. No. 3L-39-93 7-2, 7/29/93 4-147. Third-party administrators and consultants. ( The Board may retain the services of third-party administrators or qualified health care or business consultants as it deems necessary for the successful operation of the Plan. Source: S.L. No. 3L-39-93 7-3, 7/29/93 4-148. Determinations and appeals. ( Except as otherwise provided in this chapter, determinations of eligibility, covered services, qualified providers, benefit amounts, premium amounts to be billed, and all other matters arising in the implementation of the Plan shall be made by the Executive Director in accordance with regulations. Appeals from determinations of the Executive Director may be made to th