v.
STEVEN KAPLAN, Defendant.
High Court of
Trial Division
CR No. 20-99
[1]
A motion to suppress field test results, on the basis that the tests are not scientifically
valid, will not be granted where the government asserts that it intends to use
them at trial to establish chain of custody and not to prove the nature of the
substance; but if the government fails to introduce further forensic evidence
as to the nature of the substance, the defendant may renew his motion.
[2] When
a person is arrested, “immediate control area” searches are subject to
case-by-case analysis of factors as to the risk to officers or evidence.
[3] A
person in handcuffs is effectively limited as to the surrounding area over
which he has “control,” and a search of such area is generally unwarranted; the
fact of handcuffing is persuasive but does not alone cause such search to be
illegal.
[4] Where
an arrestee is handcuffed, the suspected crime is nonviolent in nature, the
evidence of that crime is not easily destructible by a handcuffed arrestee, the
arrestee was not surprised in the act of committing a crime, he is alone in a
small shack and shows no sign of resistance, and two able officers are present,
the degree of risk does not justify a warrantless search of the premises.
[5]
Where the facts are in dispute as to whether an arrestee was fully informed of
his Miranda rights, the court’s
finding of fact on that issue may take into account the experience and training
of the officer.
Before KRUSE, Chief Justice, SAGAPOLUTELE, Associate
Judge, ATIULAGI, Associate Judge.
Counsel: For Plaintiff, John W. Cassell, Assistant Attorney General
For Defendant, Patricia Penn, Assistant Public
Defender, and
Mitzie J. Folau, Assistant Public Defender [3ASR3d87]
ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTIONS TO SUPPRESS
Defendant Steven Kaplan is charged with one count of Unlawful Possession
of a Controlled Substance, in violation of A.S.C.A. §§ 13.1022 and 13.1006. On
a. Motion to
suppress test results—this motion seeks to suppress the results of field tests
conducted to determine the identity of a seized substance believed to be
marijuana.
b. Motion to
suppress evidence—this motion requests the suppression of physical evidence
seized in the course of effecting defendant’s arrest.
c. Motion to
suppress statements—this motion arises out of an alleged failure to provide
constitutionally-required Miranda warnings.
Plaintiff American Samoa Government (“ASG”) responded to defendant’s
motions on July 20, 19 and 29, 1999, respectively. The hearing was held with
all counsel and the defendant present.
Discussion
The facts relevant to each motion will be addressed with the individual
discussions below.
A.
Motion to Suppress Field Test
Results
[1] On the
evening of
This court recently issued an opinion on this exact
same issue in CR No. 19-99, American Samoa Government v. Fa`atui Isaia. As
in that case, ASG has indicated in its brief herein that it will also introduce
the results of more accurate forensic tests yet to be performed, such that the
introduction of the results of the field tests would be merely cumulative
evidence on the issue of the substance’s identity. In denying the motion to
suppress, the court in Fa`atui reasoned
as follows:
Whether properly styled as a motion to suppress or as
a motion in limine, we find no basis for excluding the results of the
field tests. ASG has specifically stated that this evidence will not be
introduced for the purpose of proving the nature of the substance, but
rather simply to establish chain of custody. Although they do not purport at
this time to have knowledge regarding the validity of the process or its degree
of acceptance in the scientific technical community, [the public safety
officers] do appear to be qualified to testify regarding their administration
of the tests and the results therefrom, as well as to their training and
expertise in conducting such tests.
If ASG fails to introduce further forensic
evidence—which would effectively convert the field test results from
potentially cumulative evidence into the sole evidence of the substance’ s
identity—then [defendant]’s motion may be renewed.
Order
Denying Defendant’s Motion to Suppress Test Results, slip op. at 2-3 (Trial
Div. August 2, 1999). We see no reason to deviate from this analysis in the
instant case.
B. Motion to Suppress Evidence Seized During
Arrest
Defendant’s second motion seeks to suppress evidence
seized at his home during a search contemporaneous with his arrest. The facts
relevant to this motion were not disputed at the hearing. Upon entering
defendant’s room, certain items were—apparently conceded— discovered in plain
view, including some amount of marijuana and a gram scale used for weighing
quantities of marijuana. However, additional evidence was discovered which was
not readily visible to the arresting officers, and it is this evidence which
defendant seeks to suppress through this motion. Specifically, according to the
hearing testimony of Agent Snow, the officers located additional quantities of
a substance believed to be marijuana during and immediately after cuffing the
defendants’ hands behind his back. One baggie, containing three cigarettes, was
found under the mattress of the bed located just behind where defendant was
standing; an additional quantity of suspected marijuana was uncovered beneath
some papers in an open box located [3ASR3d89]
approximately two to four feet from the defendant.
Defendant
does not contest that probable cause existed for his arrest, and the Supreme
Court has long recognized that certain limited searches, conducted
contemporaneously with and incident to a legal arrest, are not violative of the
Fourth Amendment.[1] While
searches of the arrestee’s person have been found to be legal per se under
United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court has
expanded the scope of permissible searches to also include “the area into which
an arrestee might reach in order to grab a weapon or evidentiary items” or the
area “within his immediate control.” Chimel v.
Police
officer safety, as well as the need to protect evidence which might be quickly
and easily destroyed, serves as the underlying rationale for this exception to
the warrant requirement. In that regard,
the defendant’s immobilization via handcuffs would appear to defeat the purpose
of the “immediate control area search,” thereby rendering it illegal. ASG,
however, urges our consideration of Robinson, supra, in which the Court
explicitly found that even where the particular circumstances of the arrest do
not demonstrate any likelihood of danger or destruction of evidence, the search
may nevertheless be legal: “The authority to search the person . . . does not
depend on what a court may later decide was the [degree of risk] in a
particular arrest situation.” 414
[The
search incident to lawful arrest] has historically been formulated into two
distinct propositions. The first is that a search may be made of the person of
the arrestee. The second is that a search may be made of the area within the
control of the arrestee.
Examination
of this Court’s decisions shows that these two propositions have been treated
quite differently. The validity of the search of a person incident to a lawful
arrest has been regarded as settled from its first enunciation, and has
remained virtually unchallenged until the present case. The validity of the
second proposition, while likewise conceded in principle, has been subject to
differing interpretations as to the extent of the area which may be searched.
ASG similarly offers New York v. Belton as analogous to the
circumstances in this case. 453
[2-4] Unlike
searches of the person or automobiles, which are now governed by the
bright-line rules of Robinson and Belton as discussed above,
“immediate control area” searches of premises remain subject to a case-by-case analysis
of factors indicating the presence or absence of risk to officers or evidence.
Most courts examining the issue have held, and we agree, that placing a
defendant in handcuffs effectively limits his “control” over his surrounding
area such that the continued search of such area, in most circumstances,
becomes unwarranted. United States v. Blue, 78 F.3d 56 (2nd Cir. 1996)
(search by lifting mattress off box spring improper where defendant was
handcuffed and on the floor, two feet from the bed). See also
Because
defendant’s handcuffing is persuasive but not necessarily dispositive[2],
we must therefore consider the other circumstances relating to this particular
arrest. In analyzing similar situations, courts have looked to many factors,
including the nature of the alleged crime, the likelihood that weapons would be
found and the ratio of arresting officers to arrestees. In reviewing the facts
of the arrest in the instant case, given the arrestee’s immobilization, we do
not find the degree of risk necessary to justify the search. Indeed, we can
hardly conceive of an arrest situation less fraught with danger: the
suspected crime, possession of marijuana, was nonviolent in nature, and the
evidence of that crime not easily destructible by a handcuffed arrestee;
defendant was not surprised in the act of committing a crime, but rather invited
the officers into his dwelling; he was clearly alone, arrested by two able
officers, and showed no sign of resistance whatsoever; and the scene, as
acknowledged by Agent Snow as a small one room “box” type shack without windows
and one doorway, hardly admits the hidden accomplices possibility.
In its brief,
ASG further argues that policy considerations favor a standard which would give
arresting officers carte blanche authority to search within a limited
radius even after handcuffing an arrestee. To rule otherwise, it contends,
would place “a premium on foolhardiness on the part of officers” because
“[t]hey could only perform the search if they left a suspect at liberty
to move around and possibly gain control of a weapon.” Memorandum in
Opposition, at 9 (emphasis added). On the contrary, we believe that there is
another way that the search could be conducted even with due regard for officer
safety, namely, that method which is required by the Fourth Amendment: take the
minimal time and effort necessary to obtain a proper search warrant. Having
physically secured the arrestee under the circumstances of this case; we find
no reason that Agent Snow and Sergeant Ta`afua could not safely have obtained a
warrant for any further search of the room.
[3ASR3d92]
C.
Motion to Suppress Statements
Finally, defendant seeks to suppress certain
statements made by him on the ground that they were made in the absence of
constitutionally-required Miranda warnings. In Miranda v. Arizona, the Supreme
Court set forth the requirements for advising a defendant of his legal rights
prior to custodial interrogation. 384
[5] With one notable exception, the facts regarding these statements are
not in dispute, and are recounted in ASG’s response brief. Upon entering defendant’s room and seeing the
suspected marijuana on the table, Agent Snow asked two questions: “What? You
invite cops into your room with dope on the table?” and “What do you expect us
to do now, just walk away and forget this happened?” The defendant responded to
each by shaking his head and looking down at the floor. After receiving no
verbal response, Agent Snow proceeded to ask “Where is the rest of the stuff
because I know there’s more?” The defendant responded pleadingly, “Come on,
Dave; come on, Dave.”
Defendant was then placed under arrest, and it is at this point that we
reach the critical disputed question of fact. At the hearing, Agent Snow
testified that, at the time of the arrest, he advised defendant of his full
constitutional rights; his written report, however, simply recorded that he had
reminded defendant of his “right to remain silent,” only one component of those
warning required by Miranda. This entry in the report
notwithstanding, we rule as a finding of fact that Agent Snow did indeed advise
defendant of the entirety of his constitutional Miranda rights, as he
asserted at the hearing. Agent Snow is an experienced and well-trained officer
who has certainly made dozens of arrests throughout his career. To such an officer, the Miranda warnings
necessarily become a rote recitation, memorized and administered routinely at
the time of arrest. Ironically, we would be more troubled if the disputed issue
of fact was whether any of the Miranda rights were given at all; under
the instant circumstances, however, we think it highly unlikely that Agent Snow
would have given the defendant only a subset of those rights which he had been
trained to give.[3] [3ASR3d93]
Given these facts, therefore, we find no grounds for
suppressing any of defendant’s statements. The initial questions and responses
prior to the arrest pose no difficulty, as they did not amount to custodial
interrogation within the meaning of Miranda. See ASG v.
Taylor, 19 A.S.R.2d 105, 106-07 (Trial Div. 1991). Although defendant
may or may not have felt free to leave, these unique circumstances—in which the
defendant freely invited the officers into his home containing marijuana in
plain view—lead us to believe that the pre-arrest conversation was not
custodial in nature.
With respect to statements made by the defendant after his arrest, we
find that any such statements were made subsequent to his being advised of his
full constitutional rights, and we find no reason to believe that those
statements were not made freely and voluntarily. Defendant is an educated
adult, a teacher. He was given his Miranda
warnings, and Agent Snow even expounded at additional length upon his right
to remain silent. Finding no evidence to support an implication of coercion, we
therefore decline to suppress defendant’s statements in this matter.
Order
For the foregoing reasons, defendant’s motions to suppress test results
and defendant’s motion to suppress statements are hereby denied. Defendant’s
motion to suppress evidence not seen in plain view is hereby granted.
It is so Ordered.
**********
[1] The Fourth Amendment to the U.S. Constitution is
mirrored in our own Revised Constitution of American Samoa at Article 1,
Section 5.
[2] Cf.
[Whether
hands were cuffed in front of behind the body is] relevant to weapons or
destructible evidence is the crucial factor in the Chimel analysis.
[3] We realize that police reports are hardly produced
with the needs of defense counsel in mind, but public safety officers would be
well-advised to use in their written reports a more accurate and inclusive term
such as “constitutional rights” or “Miranda rights,” given Agent Snow’s
testimony at the hearing we are not particularly troubled by the report entry.
Although it is of critical importance that the full Miranda warnings
actually be given, we do recognize that, as a term of reference to this
process, “the right to remain silent” may be viewed by some— however
incorrectly—as an interchangeable descriptive phrase. Moreover, Agent Snow did
have a reasonable explanation for the entry, testifying that in the course of
advising the defendant of all of his constitutional rights, he had particularly
expounded upon the right to remain silent, and had merely meant the report to
reflect this fact.