v.
FA`ATOIAALEMANU VAGAVAO, Defendant.
High Court of
Trial Division
CR No. 78-98
[1]
The provisions of the Revised Constitution of American Samoa as relates to
searches and seizures by the government are exactly the same as the rights
guaranteed by the Fourth Amendment to the U.S. Constitution; and the Supreme
Court of the United States has made it clear that a “border search” may be
subject to a significantly less demanding standard than required for searches
within the interior.
[2]
The law regarding a border pat down search is unsettled, but at most it
requires only the articulation of some facts which would lead a reasonable and
objective customs officer to believe a search is necessary.
[3] Observations made by a trained customs officer which, in sum,
indicate that a pat down search was not conducted arbitrarily, include [3ASR3d81] that the defendant deviated
from his typical travel patterns, that his baggy clothing could enable
concealment of contraband, and that he initially refused to comply fully with
the request that he lift his shirt for visual inspection of his waistband.
[4] As with border pat down searches, the requirements for a border
strip search vary from circuit to circuit, but require a heightened level of
suspicion because of the increased intrusiveness of this type of search.
[5] Coupled with observations which support a border
pat down search, [3ASR3d73] the
discovery during the pat down of unusual bulges, and the defendant’s plaintive
“please” would lead a rational person and a trained customs officer to
reasonably conclude that a person was likely to be smuggling contraband into
American Samoa.
[6]
Except as required to determine whether a minimum threshold level of suspicion
is met, the court will not as a general rule attempt to substitute its own
judgment for that of trained, experienced customs officers.
[7]
Where a defendant repeatedly responds that he understands the Miranda rights being read to him, the
police cannot be required to look beyond his own words and presume that he does
not comprehend the plain language of Miranda.
Before KRUSE, Chief Justice, AFUOLA, Associate Judge,
and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiff, John W.
Cassell, Assistant Attorney General
For Defendant, Tautai A.F.
Fa`alevao, Public Defender
ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On the morning of October 15, 1998, defendant Fa`atoiaalemanu Vagavao
(“Vagavao”) was arrested, and was subsequently charged with one count of
possession of marijuana, a controlled substance, in violation of A.S.C.A. §§
13.1022 and 13.1006, a class D Felony punishable by imprisonment for up to five
years and/or a fine of up to five thousand dollars. Following waiver of the preliminary
examination, Vagavao was arraigned in the High Court on
Facts
On the morning of
According to Agent Lagai, Vagavao approached his customs counter at
approximately
In the secondary search area, Vagavao removed his shirt without
instruction to do so, and Agent Lagai conducted a “pat down” search involving a
frisk of defendant’s outer clothing.
While doing so, he felt several unusual bulges throughout the crotch
area. Upon discovery of the bulges,
defendant whispered the word “fa`amolemole” (please) to Agent Lagai, who
nonetheless instructed the defendant to remove the remainder of his
clothing. The strip search then revealed
that Vagavao was wearing two pairs of shorts in addition to his underwear.
Furthermore, in the course of
conducting the search, Agent Lagai ultimately uncovered approximately
thirty small bundles of what was later confirmed to be marijuana. The police
were duly summoned to the scene, and Vagavao was taken into custody shortly
thereafter.
As with the search discussed above, the basic facts surrounding
Vagavao’s statement to the police remain essentially uncontested. At the
hearing,
Discussion
A. Evidence Seized in Border Searches
[1] Article I, Section 5 of the Revised Constitution of American Samoa
affords, to all individuals certain protections against unreasonable searches
and seizures by the government. Those
exact same protections are, in relevant part, also guaranteed by the Fourth
Amendment to the U.S. Constitution. The
United States Supreme Court has made it clear that a “border search” of the
type at issue in this case may be subject to a significantly less demanding
standard than that required for searches within the interior. United States v. Montoya de Hernandez, 473
U.S. 531 (1985). To conclude that a
given search is legal—and therefore the evidentiary “fruits” of that search
admissible—a court must determine that the inspecting officer met a certain
threshold level of suspicion supportable by objective facts confronting that
officer at the time of the search. To
further complicate matters, the court is here faced with two distinct searches,
each with its own varying standards of suspicion as articulated by different
federal circuit courts. The first
consisted of the “pat down” search over the defendant’s clothing; the second,
of course, was the strip search which followed Agent Lagai’s discovery of the
unusual bulges.
[2-3] The law regarding a border pat down search remains unsettled, with
circuit courts requiring anything from little or no suspicion whatsoever
(analogizing the pat down to a routine search of luggage) to “minimal
suspicion” to “some suspicion.”
[4-5] Like the standards for a pat down, the requirements
for a border strip search vary from circuit to circuit, although all agree that
the increased intrusiveness of this type of search requires a heightened level
of suspicion. The Ninth Circuit favors a showing of “real suspicion”; the Fifth
requires “reasonable suspicion.”
[6] We conclude that both the pat down and strip searches of Vagavao were
legal and not violative of the defendant’s rights against unreasonable search.
We take this opportunity to emphasize the important role that territorial
customs officials play in protecting our islands from the infusion of illegal
drugs and other such undesirable imports. Except as required by law in
determining whether a minimum threshold level of suspicion is met, this court
will not as a general rule [3ASR3d77] attempt
to substitute its own judgment for that of trained, experienced customs
officers., The Searches of, the defendant in this case are held to be valid,
and any evidence obtained therefrom may properly be introduced at trial.
B. Defendant’s
Sworn Statement
The landmark case of Miranda v. Arizona set forth the constitutional
requirements for advising a defendant of his legal rights prior to custodial
interrogation. 384
[7] Each time the Miranda warnings were administered, the defendant
responded that he understood his rights. The defendant has made no attempt to
refute these basic facts. Instead, he merely hinted via cross-examination that
Vagavao perhaps had not actually fully understood his
rights—particularly his right to have an attorney present during
interrogation—despite his answer to the contrary. Much as we may support a criminal defendant’s
absolute right to counsel, however, we cannot impose upon the police the requirement
that they look beyond a defendant’s own words and presume that he does not
comprehend the plain language of Miranda. We therefore hold that
Vagavao’s statements were properly obtained and such statements will,
accordingly, be deemed admissible at trial.
Order
For the foregoing reasons, defendant’s motion to suppress evidence is
denied.
It is so Ordered.
**********
[1] Agent Lagai had also received a tip that defendant
had engaged in smuggling and might attempt to introduce contraband into the
Territory. However, he conceded at the
hearing that this tip did not come from a reliable source, and asserted that it
was not a significant reason behind his actions that morning. For these
reasons, we disregard this evidence and the discussion below will, accordingly,
analyze whether those other reasons cited by Agent Lagai were independently sufficient
to justify the search of defendant’s person. Mere heightened awareness which
may have resulted from the tip will not doom an otherwise valid search.
[2] In Vance, the Ninth Circuit noted, among other
factors, that agents “had observed that [the defendant’s] trip was too short to
make sense.” 62 F.3d 1152, 1156 (1995). Similarly,
Agent Lagai noticed that Vagavao was scheduled to return the same day and
therefore likely was not on vacation; at the same time, Lagai also saw that the
defendant did not travel with his usual cargo which would signify his intent to
engage in business. Taken together, these two observations suggest, at the very
least, a reasonable question as to the motives for Vagavao’s visit to
[3] The Eleventh Circuit held a border search to be valid
when one factor considered by agents prior to the search was that the defendant
“was dressed in clothes typical of undocumented aliens” and that the
12-passenger van driven by the defendant was “typical of those that transport
large numbers of undocumented aliens.”
[4] Like Vagavao, the defendant in Vance was
wearing an additional layer of underclothes in a “tropical climate,” and the
agent had recognized a “suspicious bulge under his pants.” These factors were
critical to the court’s determination that the search was properly based on “real
suspicion.” 62 F.3d 1152, 1156 (9th Cir. 1995).