v.
MEALOFA TAUOA, Defendant.
High Court of
Trial Division
CR No 74-97
Before
Counsel: For Plaintiff, John N.
For Defendant, Tautal A.F. Faalevao, Public
Defender
[1] Individuals have a constitutional
expectation of privacy in their “persons, houses, papers, and effects,” and
generally, law enforcement officers must obtain a warrant to search these areas
or for these things.
[2] The special protection accorded by the
Fourth Amendment against unreasonable searches is not extended to open fields.
[3] The curtilage of the
home is considered part of the home for Fourth Amendment purposes.
[4] Four
useful factors in determining whether the area in question is part of the curtilage of the home are: (1) the proximity of the area to
the home, (2) whether the area is included within an enclosure surrounding the
home, (3) the nature of the uses to which the area is put, and (4) the steps
taken by the resident to protect the area from observation by people passing
by.
[5] The
Fourth Amendment does not protect the merely subjective expectation of privacy,
but only expectations that society is prepared to recognize as reasonable.
[6] An area need not be “open” or a “field” to
fall under the “open field” exception to the Fourth Amendment. [2ASR3d82]
[7] There is no societal interest in protecting
the privacy of cultivation of crops that occur in open fields.
[8] Where clearing, located on side of mountain,
could not be seen from the defendant’s home, was not enclosed, was used only
for crop cultivation, and where no steps had been taken to protect it from
observation, said clearing would not be considered part of the “curtilage” of the defendant’s home.
[9] Where officers came upon marijuana-growing
operation and suspect spontaneously admitted to owning the growing marijuana, said
officers had reasonable grounds to believe suspect had committed a felony and were justified under
either A.S.C.A. § 46.0805(1) or § 46.0805(3) in conducting a warrantless arrest thereafter.
AMENDED ORDER DENYING
MOTION TO SUPPRESS
Plaintiff
American Samoa Government (“ASG”) has charged defendant
Facts
Early in
the afternoon of November 22, 1997, Special Agent David Snow (“Snow”) of the
Drug Enforcement Unit within ASG’s Department of
Public Safety received a telephone call from Ponapati
Poleki (“Poleki”) , the pulenu`u (or mayor) of the village of Fagaitua. Poleki had discovered what he believed to be marijuana
plants, growing in styrofoam cups, on the
mountainside near his home. He had taken
two of the cups from the mountain and had them in his possession.
Snow met Poleki at his home in Fagaitua
about an hour later. They were joined by Special Agent Eteuati
Leiato (“Leiato”), also a Fagaitua resident. Poleki showed the two cups to the agents and said that
there were 48 more up on the mountainside.
The agents recognized the young plants in the cups as marijuana plants
and decided to take a look at the area Poleki had
described. They did not attempt to
obtain a search warrant for the area.
Poleki
led the agents along a trail leading from his house to a ridge on the
mountainside. This walk took them about
15 minutes. They continued just beyond
the ridge and entered a clearing in the brush.
The clearing was about 15’ x 15’ and contained a shelf or table made
from tree [2ASR3d83] branches and
wood. On the table the agents observed
48 more styrofoam cups containing what they
recognized as juvenile marijuana plants.
The agents also observed a five gallon bucket of fresh water,
fertilizer, and a tray wrapped with screening material.
As they
were observing this scene, the agents and the pulenu`u
heard a person coming up the hill through the brush. The person was
approaching the clearing opposite the side from where they had entered. Leiato recognized
the person as Tauoa and called out to him. Tauoa admitted to Leiato that the plants and other items in the clearing were
his property, but he then denied to Snow any personal connection to these
items. Tauoa was then arrested without an arrest warrant,
and the plants and other items were taken as evidence.
Tauoa
resides in a house 180 to 200 feet downhill from the clearing where the
evidence was seized. He lives there with
his father, mother, a brother, and a sister, her husband and their three minor
children. No structures are visible from
the clearing, and the house can only be seen after coming downhill about 10 to
15 yards. Tauoa’s
father holds the Muagututia matai
(or chief) title, and both the house and clearing are located on the Muagututia family’s communal land. The family uses the area within and about the
clearing only for agricultural purposes.
The six adult members of the household tend to the communal land
surrounding the house and can authorize others to enter the land.
Discussion
Article I,
§ 5 of the Revised Constitution of American Samoa guarantees the right of
individuals “to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” This provision mirrors the Fourth
Amendment of the United States Constitution.
The Revised Constitution of American Samoa also provides that “[e]vidence obtained in violation of this section shall not be
admitted in any court.”
[1] Thus,
individuals have a constitutional expectation of privacy in their “persons,
houses, papers, and effects,” and generally, law enforcement officers must
obtain a warrant to search these areas or for these things. Snow and Leiato seized the evidence without a search warrant. There are, however, established exceptions to
the warrant requirement. ASG contends that the evidence is admissible because
it was discovered under the “open fields” exception to the constitutional
restriction on search and seizure. Tauoa argues that the clearing was within the curtilage of his home, and thus falls within the
protections against unlawful search and seizure. [2ASR3d84]
[2-3] In Hester
v.
[4-5] The
Supreme Court has developed a four part test for determining the extent of curtilage, but has emphasized that the test should not be a
bright line rule. The four factors instead should be considered under the
umbrella of the general principles of the Fourth Amendment. The four factors
are: (1) the proximity of the area to the home, (2) whether the area is
included within an enclosure surrounding the home, (3) the nature of the uses
to which the area is put, and (4) the steps taken by the resident to protect
the area from observation by people passing by.
[6] The Supreme Court has made it clear that an “open
field” does not have to be “open” or a “field.”
In
This court has not previously examined the distinction between curtilage and open fields.
We have, however, addressed motions to suppress evidence in similar fact
situations. In companion cases, American
Samoa Gov’t v. Atafua, 1 A.S.R.3d 174 (Trial Div. 1997),
and American Samoa Gov’t v. Dunham, 1 A.S.R.3d 176 (Trial Div. 1997),
the defendants sought to suppress evidence of plants believed to be marijuana
that were seized from bush land. The
court found that the defendants had neither asserted nor demonstrated that they
personally had property or possessory interests in
the bush land on which the marijuana plants were discovered. Lacking sufficient information of the
defendants’ legitimate expectation of privacy in the searched area, the court
concluded that the defendants’ constitutional rights had not been violated and
denied the motions to suppress the evidence.
We find
that the land at issue, where the marijuana and related items were seized, is
not within the curtilage of Tauoa’s
home. The clearing instead falls within
the definition of an open field and thus does not come within the special
protections of Article I, § 5. Tauoa had no legitimate expectation of privacy in the area
where the evidence was seized. We reach
this conclusion by applying the four factors outlined in
The
first factor in the
The second
factor in the test is whether the area is included within an enclosure
surrounding the home. The clearing is accessible
from several directions and is not within any enclosure surrounding the
home. In Suani v. American Samoa Gov’t, 1 A.S.R.3d 28, 31 (
[7] The
third factor in the test is the nature of the uses to which the area is
put. Tauoa
asserts that the clearing, being situated within the tuamaota
or tualaoa (or the extension of the
home for family uses), is integral to Samoan custom and thus is so connected
with the house as to fall within the definition of curtilage. Tauoa’s argument,
however, is not persuasive as to why playing a particular role in Samoan custom
gives rise to a societal expectation of personal privacy for that type of land,
especially considering the communal aspects of Samoan society. The clearing has been used only for cultivation. Cultivation, even of crops integral to
traditional Samoan culture, is not a use that has a reasonable societal
expectation of privacy. “There is no societal interest in protecting the
privacy of those activities, such as the cultivation of crops that occur in
open fields.”
The fourth
factor in the test is the steps taken by the resident to protect the area from
observation by people passing by. Other
than locating the clearing in the bush on the mountainside, Tauoa
did not take any steps to protect the area from observation. Snow and Leiato
were able to reach the clearing in just over 15 minutes from another
individual’s home, along a path that had no connection to Tauoa’s
home. Tauoa’s
father had given authority to the five other adult residents of his household,
including Tauoa, to give permission for outsiders to
enter the land.
Finally,
we look at the totality of these four factors under the overriding general
principle of whether government intrusion into the clearing infringes upon the
personal and societal standards of privacy protected by Article I, § 5. We find that the clearing where the evidence
was seized is not the type of area where individuals would reasonably expect to
be free from government intrusion.
[8]
Considering all of these factors, the land at issue is not curtilage.
Thus, the clearing does not fall within the definition of “houses” in Article
1, § 5 of the Revised Constitution of American Samoa, and is not afforded the
special protections of that section. The
law enforcement officers’ intrusion into the clearing and the resulting seizure
of evidence in the clearing did not violate Tauoa’s
constitutional rights.
[9] Tauoa also seeks to suppress the evidence on the grounds
that Tauoa was unlawfully arrested without an arrest
warrant. A.S.CA. § 46.0805 provides that:
A police officer is authorized, and it is his duty, to
make an arrest without a warrant, in the following cases: (1) when a [2ASR3d87] felony is committed in his
presence . . . (3) of persons found near the scene of a felony and suspected of
committing it, where such suspicion is based on reasonable grounds and the
arrest follows the crime by a short time; . . .
Snow and
Leiato were witnessing what they had reasonable
grounds to believe was the unlawful production of the controlled substance of
marijuana. Production of marijuana is a
felony. Tauoa
came upon the scene and spontaneously admitted, when asked immediately prior to
his arrest, to owning the growing marijuana.
Snow and Leiato had reasonable grounds to
suspect Tauoa of committing a felony. Thus, Snow and Leiato
could, under either A.S.C.A. § 46.0805(1) or § 46.0805(3), lawfully arrest Tauoa without a warrant.
See American
Samoa Gov’t v. Gotoloai,
23 A.S.R.2d 65, 66-69 (Trial Div. 1992); American
Samoa Gov’t v. Taylor, 19 A.S.R.2d 105,
106-07 (Trial Div. 1991). We need not go
further with this analysis. The seizure
of evidence was not tainted, and this evidence will not be suppressed, on account
of Tauoa’s warrantless arrest.
Order
Tauoa’s constitutional rights under Article I, § 5 of the
Revised Constitution of American Samoa were not violated either by the law
enforcement officers’ intrusion into the clearing and seizure of evidence there
without a search warrant, or by their arrest of Tauoa
without an arrest warrant. The motion to suppress evidence is therefore denied.
It is so Ordered.
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