v.
________________________________
v.
High Court of
Trial Division
[1] Under Article I, § 5
of the Revised Constitution of American Samoa, which mirrors the Fourth
Amendment of the United States Constitution, individuals are protected against
unreasonable searches and seizures, and search or seizure warrants may not be
issued without a showing of probable cause, and evidence obtained in violation
of this section may not be admitted in any court.
[2] Under A.S.C.A. §
46.0805, an arrest made without a warrant is authorized when a felony is
committed in an officer’s presence, or if the person arrested is found near the
scene of a felony, is reasonably suspected of committing it, and the arrest
comes shortly after the crime. [2ASR3d95]
[3] Probable cause is
more than bare suspicion and less than absolute certainty, and the existence of
probable cause is determined from the totality of the circumstances; it can
arise from witnessing the apparent purchase of drugs.
[4] When a valid arrest
is made, officers may make a full search of both the suspect and the area
within his immediate control for weapons and evidence, and where police have
probable cause to arrest a suspect, a search may precede a formal arrest.
[5] Where the totality of the circumstances surrounding an in-custody
interrogation reveal that the suspect voluntarily, knowingly, and
intelligently waived his rights to remain silent and to an attorney, any
statement made by him is admissible.
Before: KRUSE, Chief
Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For
Plaintiff, John W.
For
Defendants, Loretta Townsend, Assistant Public Defender
ORDER DENYING
DEFENDANTS' MOTION TO SUPPRESS
Defendants
On
The motion came for
hearing on April 9, continued on April 14, and concluded on
Background
In the afternoon of
The officers left their
vehicle and watched the three individuals.
They observed a fourth individual, known as Soli, approach the three and
begin talking with them. Sefo, Punefu, and Soli began
walking toward the Iseula longboat shed. Punefu was wearing
a backpack, was walking slightly behind the other two, while looking up and
down the area. Sefo
and Soli walked toward the public toilets across the street while Punefu remained on the street corner with his back to the
other two and continuing to scan the area.
Agent Sunia told Agent Tavai that he
suspected they were witnessing a marijuana purchase. Agent Tavai left to
get the police vehicle and Agent Sunia moved his
position so that he could continue to watch the three individuals. He observed Punefu
on the street corner, continuing to keep a lookout of the area. He saw Soli hand money to Sefo. Sefo then pulled
what appeared to be a ziplock plastic bag from the
crotch area of his lavalava and handed it to
Soli. Agent Sunia
saw Soli and Sefo exchange a few words, then saw Soli
hand the plastic bag back to Sefo, who replaced it in
the crotch area of his lavalava. Soli left.
Sefo and Punefu then
walked towards each other and Agent Sunia approached
them.
Agent Sunia asked Sefo and Punefu how they were doing and what they were doing
there. They indicated they were waiting
for the Iseula crew practice. Agent Sunia found
this to be an odd response since Agent Sunia was a
member of the crew team and knew that the defendants were not. He asked Sefo and Punefu if they would come to the police station so that he
could ask them some questions about a robbery.
They agreed. By that time, Agent Tavai had
brought the police vehicle around, and the defendants got inside. Before getting in the vehicle, Punefu called to A`asa to take
his backpack, but A`asa
declined.
Once they were at the
police station in Fagatogo, the officers took the
defendants to an office. The defendants
were advised that they were free to leave at any time. Agent Sunia asked
them about the robbery and both [2ASR3d97]
Sefo and Punefu said that
they knew nothing. Agent Sunia then asked Punefu if he had
any drugs and if he had been trying to sell drugs in the marketplace. Punefu answered no
to both questions. Agent Sunia then asked if he could search Punefu's
backpack. Punefu
said yes. Agent Sunia
asked Punefu if he would open the bag, but Punefu told Agent Sunia to do
it. Agent Sunia
found
Agent Sunia then turned to Sefo and
asked if he had any drugs on his person.
Sefo said no.
Agent Sunia asked if he had any drugs in his lavalava. Sefo again said no, but pulled out a plastic bag of what
appeared to be marijuana. He then took
off his lavalava and pulled out from either his
shorts or his lavalava three more plastic bags of
what appeared to be marijuana.
Agent Sunia conducted a field test of the substance in the
plastic bags and confirmed that it was marijuana. The officers then advised Sefo
and Punefu of their constitutional rights. The defendants each initialed and signed a Miranda
form written in Samoan and signed a waiver of these rights. They were then formally placed under
arrest. The defendants gave verbal
statements which were documented in the officers' investigative report.
Sefo and Punefu
were transferred to the west police substation.
At the substation they both gave written statements. Both Sefo and Punefu dictated their statements to Agent Sunia. Agent Sunia recorded the statements, in Samoan, on a police form
used for such purposes. When each
statement was completed, Agent Sunia read the
statement back to the defendant and each defendant signed his statement.
Discussion
I. Suppression of Marijuana and Other Evidence
[1] 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.” Article I, § 5 also requires that warrants
for searches or seizures be issued only upon a showing of probable cause. These provisions mirror 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.”
[2] Under the constitution, therefore, the government generally
must obtain a warrant before seizing a person.
If the government makes a [2ASR3d98]
seizure, or arrest, without a warrant, the arrest must either come under an
established exception to the warrant requirement or be based on probable
cause. See American
Samoa Govt v. Luki,
12 A.S.R.2d 82, 83 (Trial Div. 1992) (“Generally, an arrest whether with or
without a warrant must be supported by probable cause.”); Carroll v. United
States, 267
A police
officer is authorized, and it is his duty, to make an arrest without a warrant
in the following cases:
(1) when a 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; ...
Sefo and Punefu
claim that when they accompanied Agent Sunia and
Agent Tavai to the police station in Fagatogo, they were subject to an illegal arrest, and that
the search of their persons and effects which produced the marijuana and other
evidence at issue was therefore a violation of their constitutional
rights. They claim that the arrest was
illegal because it was based neither on probable cause nor the requirements of
A.S.C.A. § 46.0805. They also claim that
they did not voluntarily accompany Agent Sunia and
Agent Tavai to the police station. We do not need to reach the consent issue
because we find that both probable cause and the requirements of A.S.C.A. §
46.0805 were met.
[3] Probable cause is more than bare suspicion and less than
absolute certainty. See
The process
does not deal with hard certainties, but with probabilities. Long before the law of probabilities was
articulated as such, practical people formulated certain common-sense
conclusion about human behavior; jurors as factfinders
are permitted to do the same—and so are law enforcement officers. Finally, the evidence thus collected must be
seen and weighed not in terms of library analysis by scholars, but as
understood by those versed in the field of law enforcement.
American
Samoa Govt v. Napoleone Loia, 16 A.S.R.2d 1, 4 (Trial Div. 1990), quoting Texas
v. Brown, 460
Agent Sunia witnessed a man named Soli as he approached Sefo and Punefu. He witnessed the three individuals walking
down the street, with Punefu lingering behind the
other two. He watched Soli and Sefo walk toward the public bathroom while Punefu stood on the street corner and looked up and down
the area. He saw Soli hand money to Sefo and he saw Sefo reach into
his lavalava, pull out a plastic baggie and hand it
to Soli. He saw Soli hand the plastic
baggie back to Sefo.
And, he observed Sefo and Punefu
walk towards each other again. Agent Sunia testified that his observation of these actions led
him to believe Sefo and Punefu
were engaged in selling drugs.
Probable cause can arise
from witnessing the apparent purchase of drugs, see, e.g., United States v.
Taylor, 997 F.2d 1551, 1553-54 (warrantless
search where police discovered cocaine in defendant's pant pocket valid because
probable cause existed where police observed defendant's apparent purchase of
drugs); United States v. White, 655 F.2d 1302, 1303-04 (D.C.Cir.1981)
(per curiam) (police had probable cause after
observing suspect in a high narcotics area exchange currency for small object),
especially when the law enforcement officer witnessing the event has
specialized training in narcotics surveillance and apprehension. See,
The fact that Agent Sunia or Agent Tavai did not
arrest defendants on the street near the Iseula boat
shed does not vitiate the existence of probable cause. Agent Sunia
testified that he chose to obtain the defendants' consent to go to the station
because there were other people in the marketplace area, including associates
of the defendants, and because A`asa
had once before tried to assault him with a rock. Sunia chose to use
questioning Sefo and Punefu
about the robbery as the means of obtaining this consent. Sefo and Punefu claim that they did not consent, but were instead
forced into the police vehicle. We do
not find this testimony particularly credible, but even if they did not give
consent, probable cause to arrest still existed. Because Agent Sunia
had probable cause to arrest, the issue of whether, or why, Sefo
and Punefu consented to go to the station is
irrelevant. See
[4] When law enforcement officials have made a valid arrest,
they may make a full search of both the suspect and the area within his
immediate [2ASR3d100] control for
weapons and evidence. Taylor, 997
F.2d at 1553 (D.C.Cir.
1993) (“If the police have probable cause for arrest, an otherwise lawful warrantless arrest and a search of the arrestee and the
area within his immediate control does not violate the Fourth
Amendment.”). Sefo
and Punefu claim that their consent to search was not
voluntary because they were being held illegally and because they were not told
that they were free to leave. Sefo and Punefu's detention, if
not voluntary, was based on probable cause, and thus was not illegal. Additionally, Agent Sunia
testified that he did tell the defendants that they were free to leave at any
time. The testimony given at the hearing
indicates that Sefo and Punefu
consented to a search. However, because
the officers were entitled to search both defendants incident to a valid
arrest, the issue of whether, or why, Punefu consented
to a search of his backpack and whether, or why, Sefo
consented to a search of his lavalava and shorts
pockets is irrelevant.
It also is not relevant
that the search preceded the formal arrest.
A search can be conducted immediately prior to arrest if the police had
probable cause to arrest the suspect before conducting the search. “Where the formal arrest followed quickly on
the heels of the challenged search of petitioner's person, we do not believe it
particularly important that the search preceded the arrest or vice-versa.” Rawlings v.
In conclusion, then, we
find that although Sunia and Tavai
did not arrest Sefo and Punefu
in the marketplace, they had probable cause to do so. The search of their persons and effects,
whether or not done with Sefo's and Punefu's consent, was a search incident to a valid arrest
and therefore did not violate their constitutional rights. The marijuana, money, Christmas stocking, and
other evidence produced in the search will not be suppressed.
II. Suppression of Written Statements
Defendants also seek to
suppress written statements on grounds that the statements were not written by
themselves and that they were ordered to sign the statements. Defendants claim that the statements were
thus not voluntary and that they did not voluntarily waive their rights against
self-incrimination.
[5] Any confession or statements given to the police must
comply with the standard as established in Miranda v. Arizona, 384 U.S.
436, 444 (1966), with certain elements that have been modified or clarified
over the years. “In essence, if a
suspect 'voluntarily, knowingly, and intelligently' waives his right to remain
silent and to an attorney, a statement made by a suspect who is in custody is
admissible.” American [2ASR3d101] Samoa Govt v. Gatoloai, 23 A.S.R.2d 65 (Trial Div. 1992), citing Miranda, 384
Sefo and Punefu
both made written statements regarding their activities in the marketplace
earlier that day. They made these
statements about two hours after they had been formally, and validly, arrested. Sunia verbally
advised them of their constitutional rights.
Sefo and Punefu both
signed a Miranda form, written in Samoan, which listed each of their
rights, and wrote their initials next to each enumerated right. On the same forms, they signed a waiver of
these rights. All of these actions took
place prior to the time they made their statements. We find that the totality of the
circumstances surrounding these actions show that Sefo
and Punefu made an uncoerced
choice and had the requisite level of comprehension of the choice they were
making.
Sefo and Punefu
made their statements at the west police substation. They had been transferred there from the Fagatogo police station after their arrest. Both Sefo and Punefu made their statements by dictating to Sunia, who recorded their words on a police form typically
used for that purpose. At the beginning
of each written statement is a sentence indicating that the statement was
recorded by the law enforcement officer, not the defendants themselves. After each statement was recorded, Sunia read the statement back to Sefo
and Punefu so that they would know what had been
recorded and they could make any needed changes. Both Sefo and Punefu signed their respective written statements.
Nothing in these actions
indicates to us that the defendants' statements were anything less than
voluntary. It is not unusual for the
police to record a statement for defendants, especially when they indicate that
although willing to make a statement, they are either not able or are not willing
to record it themselves.
We find, therefore that
the written statements were not made in violation of Sefo's
or Punefu's constitutional rights. The statements will not be suppressed. [2ASR3d102]
Conclusion and Order
On the foregoing,
defendants' motion to suppress is denied.
It is so Ordered.
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