[29ASR2d38]
v.
NUUSILA SUANI,
Defendant
High Court of
Trial Division
CR No. 21-95
[1]
The general rule governing the execution of search warrants is that
only items named in the warrant may be seized.
[2]
The "plain view" doctrine
is a recognized exception to the requirement of a warrant in American
Samoa, and permits a warrantless seizure of private
property when three conditions are satisfied: (1) the police officer's presence
in the area must be lawful; (2) the discovery of the evidence must be
inadvertent; and (3) the incriminating nature of the evidence must be
immediately apparent.
[3]
When there is an ambiguity on the face of a search warrant, the
court may look to the circumstances surrounding the issuance of the warrant to
discover its meaning.
[4]
A warrant that anticipated a search for marijuana plants at least
three feet tall, whether growing or harvested, provided authority to search
only those containers and other spaces, which are large enough to conceal such
plants.
[5]
The plain view doctrine does not authorize search and seizure of
items contained within objects like attache
cases, file cabinets, and luggage that are themselves in plain view. A plain view seizure is limited to items that
are clearly incriminating and that are inadvertently encountered in the course
of a justifiable intrusion.
[6]
The contents of a container may not be discovered under the plain
view exception unless it is "immediately apparent" that the container
probably holds incriminating evidence (such as a weapon case might), or is of
itself somewhat incriminating.
[7]
A search undertaken pursuant to a warrant must be directed in good
faith toward the objects specified in the warrant. If the warrant has been [29ASR2d39] allowed
to become an object for a general search and it is not possible for the court
to identify after the fact the discrete items of evidence which would have been
discovered had the agents kept their search within the bounds permitted by the
warrant, all seized evidence must be suppressed.
[8]
Generally, the exclusionary rule does not require the suppression of
evidence within the scope of a warrant simply because other items outside the
scope of the warrant were unlawfully taken as well. The threshold question for suppressing all
evidence obtained in a search is whether or not the behavior of the police
officers is so unconscionable as to rise to the level of a due process
violation.
[9] Due process is violated only where there is
flagrant disregard for the limitations of the search warrant, transforming the
particularized warrant into a general search.
Before RICHMOND Associate Justice,
AFUOLA, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For
Plaintiff, Frederick J. O'Brien, Assistant Attorney General
For Defendant,
Reginald E. Gates, Public Defender
Order Partially Granting Motion To
Suppress:
This order concerns the admissibility of
evidence found inside a container, where the container was too small to contain
the items mentioned in a search warrant.
FACTS
On
At some time during this initial encounter,
the police officers also began searching the premises for marijuana, and
ultimately found and seized [29ASR2d40] two growing marijuana plants. Having found these two plants, the officers
formally placed Suani under arrest and, because he
resisted, physically took Suani inside the home where
the search continued. The officers found
a marijuana joint sitting on top of a cardboard barrel in the living room and a
briefcase containing: a .38 revolver, 462 marijuana seeds, a glass smoking
pipe, three packets of cigarette rolling papers, and other drug paraphenalia.
Suani moved for
suppression of the evidence obtained during this search, alleging that the
officers ignored the limitations of the search warrant. A hearing was held on this motion on
[1]
The constitutional provision governing searches and seizures in
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. Evidence obtained in
violation of this section shall not be admitted in any court.
Rev. Const. of
Am.
1. The Marijuana Joint
[2]
The "plain view" doctrine is a recognized exception to the requirement
of a warrant in American Samoa, and permits a warrantless
seizure of private property when three conditions are satisfied: (1) the police
officer's presence in the area must be lawful; (2) the discovery of the
evidence must be inadvertent; and (3) the incriminating nature of the evidence
must be immediately apparent.
The police intrusion into the residence
was clearly lawful, since the officers had a warrant to search the house for
"marijuana plants." All of
the evidence indicates that the marijuana joint was in plain view in the living
room, that the officers could scarcely have missed seeing it, and that they
immediately recognized it as contraband by virtue of their training and
experience in handling narcotics cases.
2. The Items in the Briefcase
Suani contends that
the search of the briefcase within his residence was illegal, since the warrant
authorized the police officers to search for marijuana plants, which the
warrant application described as between three and five feet tall. Suani contends that
plants of this size would not fit within a briefcase, disqualifying the
briefcase as a legitimate area for intrusion.
Suani further contends that the warrant
limited the search to "marijuana plants" because, although ASG
applied for a warrant to search for "marijuana plants, and related
paraphernalia," the warrant itself did not include explicit authority to
search for "related paraphernalia."
A. The Definition of "Marijuana
Plants"
[3]
ASG argues that the term "marijuana plants" is broad
enough to include the marijuana seeds found within the briefcase, and that the
handgun was found in the officers' plain view, while engaged in a good faith
search for marijuana. When there is an
ambiguity on the face of a search warrant, we may look to the circumstances
surrounding the issuance of the warrant to discover its meaning. Ellsworth v. State, 582 P.2d 636, 638
(
[4]
The application for the warrant anticipated marijuana plants
between three and five feet in height, and "related
paraphernalia." The warrant did not
authorize the requested search for "related paraphernalia," despite
the specific request in the warrant application. We conclude, therefore, that the warrant
anticipated a search for marijuana plants at least three feet tall, whether
growing or harvested. Accordingly, the
warrant provided authority to search only those containers and other spaces,
which are large enough to conceal such plants.
ASG suggests that we use the statutory
definition of marijuana, found in A.S.C.A. § 13.1001(h), which states that
"Marijuana means all parts of [29ASR2d42] the plant Cannabis Sativa, L.,
whether growing or not, the seeds thereof . . . ." We reject this suggestion. As Suani points
out, the statute defines marijuana generally, not marijuana
plants. Marijuana does not mean marijuana
plants any more than dog means doghouse. The warrant anticipates a search for
marijuana in plant form, denying a more invasive warrant to search for
"related paraphernalia," which would have authorized police intrusion
into smaller spaces.
B. Plain View of the Briefcase
[5]
One police officer testified that it is common for him to find
drug paraphernalia within briefcases, and therefore, when he saw the briefcase
in plain view, it suggested to him that there would be drugs inside. We offer the reasoning of the U.S. Court of
Appeals for the Eighth Circuit on this point:
The plain view
doctrine does not authorize search and seizure of items contained within
objects like attache cases, file
cabinets, and luggage that are themselves in "plain view." A "plain view" seizure is limited
to items that are clearly incriminating and that are inadvertently encountered
in the course of a justifiable intrusion.
United States v. Jackson, 576 F.2d 749,
753 (8th Cir. 1978) (emphasis added; citations omitted); see also United
States v. Presler, 610 F.2d 1206, 1214 (4th Cir.
1979).
[6]
We hold that the contents of a container may not be discovered
under the plain view exception unless it is "immediately apparent"
that the container probably holds incriminating evidence (such as a weapon case
might), or is of itself somewhat incriminating.
[7]
A search undertaken pursuant to a warrant must be directed in
"good faith toward the objects specified in the warrant."
[8-9]
Generally, however, "the exclusionary rule does not require
the suppression of evidence within the scope of a warrant simply because
[29ASR2d43] other items outside the scope of the warrant were unlawfully taken
as well."
Although the police officers exhibited a
cavalier attitude regarding the warrant's limitations on this occasion, we do
not find that the search was undertaken in bad faith. Without prior judicial precedent for guidance
in this jurisdiction until after the search in this case, see American Samoa
Govt. v. Dallace Seiuli,
29 A.S.R.2d ___ (Trial Div. 1995), we can understand the officers' logic and
motives when they suspect larger game
but have probable cause only for particularized drugs to support a search
warrant. Furthermore, we can also
readily identify the things which would have been discovered had the search
been kept within the warrant's limitations.
We find no reason, therefore, to suppress all of the evidence in this
case. However, we also alert ASG's Attorney General and Commissioner of Public Safety
that with this case and Seiuli as precedents,
we are likely to find bad faith if police officers ignore the parameters of
search warrants in the future.
1.
We suppress all of the materials found within the briefcase, which were
found and seized in violation of the limitations of the search warrant.
2.
We do not suppress the marijuana plants, which were described in the
warrant. We also do not suppress the
marijuana joint found in plain view on top of the cardboard barrel in the
living room of Suani's house.
3.
The suppressed items of evidence are contraband. Pursuant to A.S.C.A. § 46.4234, the .38
pistol is confiscated. Pursuant to
A.S.C.A. § 13.1033, the drugs and drug paraphernalia are forfeited. The Commissioner of Public Safety shall
retain custody of these items, subject to the court's ultimate disposal orders.
It is so ordered.
********
1 Because this language mirrors the language of
the federal Constitution (adding a sentence constitutionalizing
the exclusionary rule), federal and state cases are persuasive, but not binding
authority in