v.
ALFRED FAUMUINA, Defendant.
High Court of
Trial Division
CR No. 8-97
[1]
Article 1, Section 5 of the Revised Constitution of American Samoa mirrors its
federal counterpart in the Fourth Amendment under which the right of the people
to be secure in their persons against unreasonable searches and seizures shall
not be violated.
[2] Under
the rule of exclusion, items seized illegally may be suppressed upon a timely
motion; evidence obtained in violation of Constitutional protections shall not
be admitted in any court.
[3] A
warrantless search is unless an exception exists to justify it, and a “Terry
stop and frisk” is such an exception.
[4] A Terry frisk must be limited to what is necessary for the discovery
of weapons which might be used to harm the officer or others.
[5] A Terry frisk is justified if it is reasonably related to the circumstances, and the search
of a waist pouch is reasonable where the officer has reason to believe it
contains a gun and ammunition.
[6] A Terry frisk must be justified at its
inception, and the officer must be rightfully in the presence of the party
frisked, and that is so when the party places himself in the officer’s
presence.
[7] A Terry frisk is justified if the officer reasonably suspects that
the party may be armed
and dangerous; this standard is quite low (a good deal lower than probable
cause) and considerable deference is afforded law enforcement authorities in
this determination. It is reasonable for
an officer to suspect that a person is armed if he sees what he believes to be
the bulge of a gun in a waist pouch.
[8] It is reasonable for an officer
to suspect that a person may be dangerous when the person is displeased at
having poker machines seized, and persistently follows the team carrying out
inspections for other illegal machines. [3ASR3d95]
[9] A frisk is proper where an
obvious bulge of a handgun provides probable cause to arrest and search on
suspicion that the person is carrying a concealed firearm in violation of
A.S.C.A. § 46.4203 (a)(1).
[10] A protective search is
permissible after a suspect is handcuffed.
Before
Counsel: For Plaintiff, John W. Cassell, Assistant
Attorney General
For Defendant, Aitofele T. Sunia
ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On
Plaintiff American Samoa Government
(“ASG”) commenced prosecution of Faumuina for unlawful use of a weapon, by
knowingly carrying the handgun concealed on his person, a class 13 felony. The
information charging this offense, in CR No. 48-99, was filed on
We found probable cause to proceed
with the probation revocation proceeding on
Facts
During the morning of June 24,
1999, an ASG team, including police Lieutenant Vaito`elau Laumoli (“LT
Laumoli”) and Detective Sergeant Ta`ase Sagapolutele (“SGT Sagapolutele”),
inspected various premises for the presence of illegal poker machines. At the
market place in Fagatogo, the team confiscated machines believed to belong to
Faumuina. Faumuina came to this site while the process was in progress [3ASR3d96] and acted with displeasure
over the seizure of these machines. Faumuina and other private citizens then
followed and observed the activities of the team at several other locations in
the
The
search and seizure in question took place outside of a building in Aua. While
SGT Sagapolutele waited outside in the police unit, LT Laumoli and other team
members went inside the building. Faumuina and another citizen began to follow
LT Laumoli’s group into the building. LT Laumoli then asked Faumuina and his
immediate companion to leave the area so as to not disrupt the team’s
inspection. Faumuina and his companion apparently acceded to this request.
However, SGT Sagapolutele had stepped out of the vehicle and was approaching Faumuina.
When SGT Sagapolutele was within
approximately three yards of Faumuina, he noticed what appeared to be the
outline of a handgun in the waist pouch on Faumuina’s person. Closing to within
a couple of feet of Faumuina, SGT Sagapolutele discerned the gleam of metallic
objects that looked like the tips of loose bullets inside the pouch. SGT
Sagapolutele asked Faumuina about the contents of the pouch, and Faumuina did
not reply.
At this point, SGT Sagapolutele was
concerned that Faumuina was armed and potentially dangerous, and he reached to
pat down the waist pouch. Faumuina twisted to away as if to prevent the
contact. SGT Sagapolutele was still able to touch the pouch and felt a hard
object which he believed could be a handgun. SGT Sagapolutele then held
Faumuina, opened the pouch, and discovered the loaded handgun. Loose bullets
for the handgun were also in the pouch.
Faumuina
seeks to suppress the handgun and bullets on the ground that the search was not
lawful because SGT Sagapolutele did not have reasonable suspicion sufficient to
justify the search. Faumuina also wants his statements to the police
suppressed.
Discussion
[1-3]
Mirroring its federal counterpart in the Fourth Amendment, Article 1, Section 5
of the Revised Constitution of American Samoa states that “[t]he right of the
people to be secure in their persons . . . against unreasonable searches and
seizures, shall not be violated . . . .”
Under the rule of exclusion, items seized illegally may be suppressed
upon a timely motion. Weeks v.
[4] In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court
defined a “frisk” as “measures to determine whether the person is in fact
carrying a weapon and to neutralize the threat of physical harm.” The Court
determined that a frisk constitutes a search within the meaning of the Fourth
Amendment that must be “limited to that which is necessary for the discovery of
weapons which might be used to harm the officer or others nearby.”
SGT Sagapolutele’s search falls
within this definition of a frisk. He opened Faumuina’s waist pouch to
determine whether Faumuina was carrying a handgun, and if so, to neutralize any
threat the firearm might pose. SGT Sagapolutele only searched Faumuina’s pouch
in which the handgun and bullets were in fact located. The search was thus
limited to discovering ready weapons on Faumuina’s person.
[5] Justification for a frisk
requires two elements. First, the search must be reasonably related in scope to
the circumstances. SGT Sagapolutele searched only the waist pouch in which he
believed the handgun and ammunition to be located, satisfying this element.
[6] Second, the search must be justified at its inception. Two factors
play into whether a frisk is justified at its inception. First, the law
enforcement officer must be rightfully in the presence of the party frisked.
This is not an issue here, because Faumuina put himself in the presence of the
officer.
[7-8] Second, the law
enforcement officer must suspect that the party may be armed and
dangerous. Use of the word may indicates that this standard is quite
low, and considerable deference is afforded law enforcement authorities in this
determination. As stated in United States v. Montoya de Hernandez, 473
U.S. 531,541 (1985), this standard is a good deal lower than that of probable
cause. The Supreme Court further elucidated this standard in Ybarra v.
Illinois, 444 U.S. 85 (1979), wherein it stated that Terry “created
an exception to the requirement of probable cause” whereby “a law enforcement
officer, for his own protection and safety, may conduct a pat-down to find
weapons that he reasonably believes or suspects are then in the possession of
the person he has accosted.”
SGT Sagapolutele’s testimony
indicated a reasonable suspicion that Faumuina was armed, having seen what
appeared to be a handgun in Faumuina’s waist pouch. From the circumstances of
the day in question, the sergeant could also have reasonably believed Faumuina
to be dangerous. Faumuina was displeased at having poker machines seized [3ASR3d98] earlier at the Fagatogo
market place and persistently followed the team carrying out the inspections
for other illegal machines.
[9] Even if Faumuina was
acting innocently, however, a frisk was justified in this instance. People
v. Prochilo, 363 N.E.2d 1380 (1977)
held that a frisk was proper where the outline of a gun was visible through
clothing, because an arrest and search on probable cause of carrying a
concealed weapon could have been made. The situation here is almost identical,
because SOT Sagapolutele could have immediately arrested and searched Faumuina
on suspicion of carrying a concealed firearm in violation of A.S.C.A. § 46.4203
(a)(1). In addition, the court in
The importance accorded police
safety by the courts also argues for the lawfulness of the search. According to
the Supreme Court, “the State’s proffered justification—the safety of the
officer—is both legitimate and weighty. ‘Certainly it would be unreasonable to
require that police officers take unnecessary risks in the performance of their
duties.’”
[10]
Faumuina also rhetorically questions the purpose or legitimacy of the second
pat down the police officers made of his person after Faumuina was arrested and
handcuffed. The officers were justified in conducting this pat down because a
protective search is permissible after a suspect is handcuffed. ‘[I]t is by no
means impossible for a handcuffed person to obtain and use a weapon concealed
on his person,’ and the suspect may in any event be able to access a weapon
concealed on his person once the handcuffs are removed.
Conclusion and Order
For the
foregoing reasons, we conclude that the seizure of the handgun and ammunition
in this case was proper as a “Terry stop and frisk.” Therefore,
Faumuina’s motion to suppress the handgun and ammunition is denied, and these
items are admitted into evidence.
We will,
however, postpone making the formal decision on the probation [3ASR3d99] violation until the trial in
CR No. 48-99 is concluded.
It is so Ordered.
**********
[1] Alfred Faumuina is the same person as Poe Faumuina,
the named defendant in CR No. 48-99.
Identity is not at issue in either case.