v.
POE
FAUMUINA, Defendant
High Court of
Trial Division
CR No. 48-99
[1]
Under the Exclusionary Rule, items seized illegally may be suppressed upon a
timely motion.
[2]
A “Terry stop and frisk” is an exception to the requirement that police
possess a warrant in order to conduct a search.
[3]
A “frisk” is a measure used by police to determine whether a person is carrying
a weapon and to neutralize the threat of physical harm.
[4] A frisk must be limited in scope to that which is
necessary for the discovery of weapons which might be used to harm the officer
or others nearby.
[5]
A frisk is justified if it meets two requirements: (1) it must be reasonably
related in scope to the circumstances; and (2) it must be justified at its
inception.
[6]
In order for a frisk to be justified at it inception, the law enforcement
officer must be rightfully in the presence of the party frisked and must
suspect that the party may be
armed and dangerous. [3ASR3d100]
[7]
Considerable deference is afforded law enforcement authorities in their
assessment of whether a suspect may be armed and dangerous.
[8]
Where police conducted second patdown of accused, subsequent to being arrested
and handcuffed, such search was reasonable as a protective search.
Before
Counsel: For
Plaintiff, John W. Cassell, Assistant Attorney General
For Defendant,
Aitofele T. Sunia
ORDER DENYING MOTION TO SUPPRESS EVIDENCE
On
Faumuina
moved to suppress the handgun and ammunition seized by, and his statements to,
the police. The court heard this motion 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 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. SGT [3ASR3d101] Sagapolutele then stepped
out of the police vehicle and approached 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 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 gun 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
[1-2]
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.
[3-4] 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.” [3ASR3d102]
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
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 a handgun and
ammunition to be located, satisfying this element. Second, the search must be justified at its
inception.
[6-7] 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. 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.” [3ASR3d114]
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, SGT
Sagapolutele could also have reasonably believed Faumuina to be dangerous. Faumuina was displeased at having poker
machines seized earlier at the Fagatogo market place and persistently followed
the team carrying out the inspections for other illegal machines.
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 SGT 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.’”
[8] Faumuina also rhetorically questions the purpose or
legitimacy of the second patdown the police officers made of his person after
Faumuina was arrested and handcuffed.
The officers were justified in this patdown because a protective search
is permissible after the 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.
Lastly, we point out that the
evidence adduced on the motion to suppress evidence did not address any
statements made by Faumuina in response to custodial interrogation. The only
evidence of any relevant statement was Faumuina’s silence when he was asked
about the contents of his waist pouch. Clearly, he was not in custody at this
juncture. The interpretative weight of this evidence may be debated, but not
its admissibility.
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,” and that no custodial statements were involved. Therefore,
Faumunia’s motion to suppress the physical evidence and statements is denied.
It is so Ordered.
**********
[1] Poe Faumuina is the same person as Alfred Faumuina, the named defendant in CR No. 8-97. Identity is not at issue in either case.