v.
MICHAEL AGASIVA, Defendant.
High Court of
Trial Division
CR No 50-99
[1]
The public peace disturbance statute, A.S.C.A. § 46.4501(a)(2),
is not facially invalid for being overbroad—it narrowly tailors it’s required
element of “intent to cause public annoyance or alarm, or recklessly creating a
risk of it.”
[2]
The public peace disturbance statute, A.S.C.A. § 46.4501(a) (2), does not apply
to protest actions which are meant to express a viewpoint rather than to “cause
public inconvenience, annoyance, or alarm,” and by judicially limiting the
application of the statute to non-protected speech, there are no residual overbreadth problems.
[3]
The “unreasonable noise” provision of the public peace disturbance statute,
A.S.C.A. § 46.4501(a) (2), is an objective standard set by community practices,
and so is not invalid for being vague; mathematical precision is not required
in defining levels of noise, and as a member of the community, the defendant
should have been aware that shouting in a public restaurant was unreasonable
noise for purposes of the statute.
[4]
Application of the statute by law enforcement personnel need not be automatic
under explicit standards, and so the decision to arrest can be properly made on
an individualized basis.
[5] A
police officer is authorized to make a warrantless
arrest of a person who commits a misdemeanor in his presence,
or to prevent a future breach of the peace; and the defendant was properly
arrested under the valid public peace disturbance statute.
[6] Article I, Section 5 of the Revised Constitution of American Samoa
being essentially identical in content regarding search and seizure to the
Fourth Amendment of the United States Constitution, caselaw
decided under the Fourth Amendment provides guidance in determining whether a warrantless search is unreasonable, and a search can be
valid for multiple reasons. [3ASR3d111]
[7] Where
an officer is legitimately within a vehicle being impounded incident to arrest,
and inadvertently comes across an incriminating object by feeling it, the
“plain feel” variation of the “plain view” doctrine applies.
[8] The discovery of a rifle in a pickup truck provides probable cause
to search the rest of the vehicle under the warrantless
search “automobile exception.” There being no exigent circumstances
requirement, the lesser expectancy of privacy in vehicle allows search at the
time of seizure or at any time thereafter.
[9] An inventory search of an impounded vehicle reasonably conducted in
good faith under standard procedures of the Department of Public Safety is a
valid search.
Before
Counsel: For
Plaintiff, John W. Cassell, Assistant
Attorney General
For Defendant, Patricia Penn, Assistant Public
Defender
ORDER DENYING MOTIONS TO DISMISS
COUNT AND SUPPRESS EVIDENCE
Plaintiff
American Samoa Government (“ASG”) accuses defendant Michael Agasiva
(“Agasiva”) of committing the offenses of disturbing
public peace, resisting arrest, and possession of an unlicensed firearm in this
action. On
Facts
At approximately 2:10 a.m. on July 11, 1999, Special Agent David Snow
(“Snow”) and police officer Faimasasa Malaefono (“Malaefono”) responded
to a call reporting an indecent exposure at the Krystal Burger restaurant in Nuu`uli. After being directed to Agasiva
by some customers, Snow observed that Agasiva’s pants
were unbuttoned and unzipped. Snow repeatedly ordered Agasiva
to zip his pants before Agasiva complied, and then
only after he loudly challenged Snow’s authority. Snow told Agasiva
to lower his voice as he was likely disturbing other customers and the staff at
the restaurant, but Agasiva only became louder and
more belligerent, shouting at one point for his food order. Snow requested Agasiva to be quiet numerous times to no avail and became
concerned about the safety of others present, [3ASR3d112] particularly the identified informant who called the
police. Then Snow and Malaefono arrested Agasiva for disturbing the peace and to prevent further
disturbance. Agasiva physically resisted arrest, and
the officers took him down to the ground to subdue and handcuff him.
Agasiva
asked about his kingcab pickup. The keys were inside.
Snow told Malaefono to take the pickup to the police
Substation West. He then drove Agasiva to this
substation in the police unit, and Malaefono drove
the impounded pickup to the same location. Upon arriving at the station, Malaefono noticed that his flashlight was missing. He
reached around the floor of the cab and touched what he thought was the stock
of a rifle. Malaefono reported his finding to the
watch commander, who instructed him to retrieve this item, which turned out to
be a 30.06 caliber, bolt-action rifle, an illegal firearm.
Upon
examining the rifle, Malaefono found a live round in
the chamber and three more in the magazine. Concerned about the possible
presence of other firearms and ammunition, Malaefono
further searched the pickup. He found six more bullets for the rifle in the
console. When Snow saw the rifle, he added the weapon possession charge and
prepared to question Agasiva. However, Agasiva refused to sign the form advising him of his Miranda
rights regarding interrogation, and Snow did not attempt to question Agasiva about the incident then or at any other time before
or after the arrest.
Early the
next morning, Snow conducted an inventory search of Agasiva’s
pickup, pursuant to police policy. Under this policy, an inventory search is
done in the vehicle owner’s presence. However, Agasiva
refused to witness the search, and the search was then made in the watch
commander’s and shift sergeant’s presence. The search yielded one more live
round for the rifle in the glove compartment, four ejected shell casings,
another live round in the console, and 33 .22 caliber bullets and a spent
casing in the cup holder.
Discussion
A. Dismissal on Grounds of Unconstitutional Vagueness and
Overbreadth
[1] We first examine whether the public peace disturbance statute,
A.S.C.A. § 46.4501(a) (2), under which Agasiva was
arrested passes constitutional muster. Agasiva
alleges that the law is vague and overly broad, and is thus facially invalid as
violative of the constitutional right of free speech
under Article I, Section 1 of the Revised Constitution of American Samoa.
The overbreadth doctrine can invalidate laws
that chill the exercise of free [3ASR3d113]
speech. We note that facial invalidation is an extreme remedy, however, one
that has been employed by the Supreme Court only sparingly and as a last
resort. Broadrick v.
To support an overbreadth claim, Agasiva must show that the instances in which the statute
could intrude on free speech are not outweighed by the valid application of the
statute.
Although the statute in question runs the risk of
chilling speech, the requirement of “intent to cause public annoyance or alarm,
or recklessly creating a risk of it,’ as an element of the offense, saves the
statute from facial invalidation.
Similar to the narrow tailoring of the statute in Grayned
v. City of Rockford, 408
[2]
Furthermore, we hold that the statute does not apply to protest actions, the
intent of which is to express a viewpoint rather than to “cause public
inconvenience, annoyance, or alarm.” In so judicially limiting the application
of the statute to non-protected speech, we cure any residual overbreadth problems. See Eroadrick,
413
Moving on
to vagueness, a statute is unconstitutionally vague if “its prohibitions are
not clearly defined.” Grayned, 408
[3] Agasiva argues that the phrase “unreasonable noise” is not
an explicit enough description of prohibited conduct, on the basis that the
phrase may mean different things to different people. This assertion fails, [3ASR3d114] however,
because “unreasonable noise” is an objective, rather than subjective, standard
set by community practices. Mathematical precision is not required in defining
levels of noise. As a member of the community, Agasiva
should have been aware that shouting in a public restaurant was unreasonable
noise for purposes of the statute. See generally Kovacs v. Cooper, 336
[4] As for
explicit standards, application of the statute by law enforcement personnel
need not be automatic. Rather, the decision to arrest Agasiva
was “made, as it should be, on an individualized basis, given the particular
fact situation.” Grayned, 408
Closing
this issue, we point out that our resolution of the constitutional issue is
supported by a multiplicity of decisions upholding disorderly conduct and
disturbance of the peace statutes. See Kovacs, 336 U.S. at 79, 93 L. Ed.
2d at 518 (words “loud and raucous” not vague because they convey “to any
interested person a sufficiently accurate concept of what is forbidden”); Heard v. Rizzo, 281 F.
Supp. 720 (E.D. Pa. 1968) aff’d, 392
U.S. 646 (1968) (statute prohibiting “loud, boisterous, and unseemly noise”
resulting in the “annoyance of peaceable residents” held constitutionally
valid); Eanes v. State, 569 A.2d 604
(Md. App. 1990) (words “loud and unseemly” in statute not unconstitutionally
vague); People v. Vaughan, 150 P.2d 964 (Ca. Ct. App. 1944) (statute
prohibiting the “malicious and willful disturbance of the peace” by “loud or
unusual noise” not unconstitutionally vague). In sum, the portion of the
B.
Suppression of Evidence
1. The Arrest Was Lawful
[5] Disturbing public peace is a misdemeanor. A.S.C.A. §
46.4501(c). A police officer is authorized to make a warrantless
arrest of a person who commits a misdemeanor in his presence, or to prevent a
future breach of the peace. A.S.C.A. § 46.0805(4) & (5).
Given that the public peace disturbance statute is valid, Snow and Malaefono were statutorily authorized to arrest Agasiva. They were also authorized to arrest Agasiva for the felony of resisting arrest committed in
their presence. A.S.C.A. § 46.0805 (1) [3ASR3d115]
2.
The Vehicle Searches Were Lawful
[6] Article I, Section 5 of the Revised Constitution of
American Samoa being essentially identical in content regarding search and
seizure to the Fourth Amendment of the United States Constitution, cases
interpreting the Fourth Amendment can provide guidance in determining the
legality of the searches of Agasiva’s pickup.
The
Fourth Amendment does not require that every search be made pursuant to a
search warrant. Rather, it prohibits
only unreasonable searches and seizures.
[7] Malaefono’s seizure of the
rifle was justified under a “plain feel” variation of the “plain view”
exception allowing warrantless searches. “[T]he plain view doctrine has been
applied where a police officer is not searching for evidence against the
accused, but nonetheless inadvertently comes across an incriminating object.” Coolidge v.
[8] Malaefono’s discovery and
seizure of the rifle were lawful and gave him probable cause to search the rest
of the pickup. Although performed without a warrant, the resulting search
during which Malaefono found six more bullets in the
console was lawful under a modern reading of the “automobile exception.” See
United States v. Johns, 469 U.S. 478, 83 L. Ed. 2d 890 (1985) (lesser
expectancy of privacy in vehicle allows search at time of seizure or any time
thereafter); United States v. Spires, 3 F.3d 1234 (9th Cir. 1993
(probable cause, arising after truck impounded, justifies warrantless
search as “there is no requirement of exigent circumstances”); United States
v. McCoy, 977 F.2d 706 (1st Cir. 1992) (probable cause alone justifies warrantless search of motor vehicle).
[9] Finally,
Snow’s search of the pickup made early the next morning, during which he
recovered shell casings and additional rounds, was a valid inventory search.
Inventory searches are “now a well-defined exception to the warrant requirement
of the Fourth amendment.”
3. Suppression of Statements
Agasiva made no incriminating statements prior to receiving
his Miranda warning at the station. Miranda v.
Order
For the foregoing reasons, Agasiva’s
motions to dismiss the charge of disturbing public peace, suppress physical
evidence, and suppress statements are denied.
It is so Ordered.
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