FEDERATED STATES OF MICRONESIA
SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2007-1502

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

OMPY TOSY,
Defendant.

ORDER DISPOSING OF PRE-TRIAL MOTIONS

Dennis K. Yamase
Associate Justice

Hearing: November 14-15, 2007
Decided: January 10, 2008

APPEARANCES:

For the Plaintiff:
Joses Gallen, Esq.
Attorney General
Office of the Chuuk Attorney General
P.O. Box 1050
Weno, Chuuk FM 96942

For the Defendant:
Harry A. Seymour, Esq.
Office of the Public Defender
P.O. Box 245
Tofol, Kosrae FM 96944

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HEADNOTES

Criminal Law and Procedure  Preliminary Hearing
When the government filed an information with an accompanying affidavit, and the court, having concluded that probable cause existed that certain crimes occurred and that the accused committed those crimes, authorized the issuance of a summons commanding the accused to appear before the court for his initial appearance, the accused is not entitled to a preliminary examination. Because a prosecutor's assessment of probable cause is not sufficient alone to cause a restraint of liberty pending trial, a preliminary hearing is required if an accused is to be detained pending trial or if significant restraints are to be placed on his liberty, and, by its terms, the statute providing for preliminary hearings for criminal defendants does not apply to a defendant who was summoned to appear before the court competent to try him. FSM v. Tosy, 15 FSM Intrm. 463, 465 (Chk. 2008).

Search and Seizure  Probable Cause
Various arguments concerning a lack of probable cause, including the discrepancy in the dates cited for his arrest  either January 5, 2005, as cited in the accompanying affidavit, or January 6, 2005, as cited in the police reporter introduced as evidence during the hearing are simply misplaced at this point. FSM v. Tosy, 15 FSM Intrm. 463, 465-66 (Chk. 2008).

Criminal Law and Procedure  Dismissal; Weapons
When the accused produced no evidence to substantiate his claim that the weapon he allegedly possessed was in unserviceable condition (such as producing the weapon itself, or even a witness's report on the weapon's condition) and that it was kept as a curio, an ornament, or for historical purposes, but instead, argued that despite his repeated discovery requests, the government had failed to provide access to the firearm that he allegedly possessed so that it could, in turn, be inspected, this argument is more appropriately suited for a motion to compel discovery, rather than a motion to dismiss. The accused is free to raise at trial the defense that the weapon he allegedly possessed falls within the exemption. FSM v. Tosy, 15 FSM Intrm. 463, 466 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession
When the court, based upon the witnesses' testimony, including their respective demeanor in the courtroom during the hearing, concludes that the accused was properly advised of his rights, including the right to remain silent, before he purportedly confessed to possessing a firearm and ammunition, the motion to suppress his confession will be denied. FSM v. Tosy, 15 FSM Intrm. 463, 466 (Chk. 2008).

Search and Seizure  Incident to an Arrest
It is not unreasonable for the police, as part of the routine incident to an arrest, to search any container or article in the arrestee's possession or in his vicinity. The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search. FSM v. Tosy, 15 FSM Intrm. 463, 467 (Chk. 2008).

Search and Seizure  Incident to an Arrest
Where a taxi driver was arrested and taken into custody and the zippered waist bag that he had was searched incident to his arrest because the bag was in close proximity to him when he was arrested and the officers discovered the bag and searched it, the search of that bag was not only reasonable, but lawful and the accused's assertion that the police lacked probable cause to search the bag is simply immaterial to the reason that such a search was even conducted and the accused's motion to suppress the weapon and ammunition that were found in the bag will be denied. FSM v. Tosy, 15 FSM Intrm. 463, 467 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

This matter comes before the court on the defendant's various pre-trial motions, including his November 1, 2007 request for a preliminary examination or in the alternative for a dismissal of the criminal information filed against him, and his July 11, 2007 motion to suppress certain evidence. The government has filed its opposition pleadings to both motions. A hearing was held on the defendant's motions on November 14, and 15, 2007.

Upon consideration of the defendant's motions, the government's opposition pleadings, and based upon the evidence and arguments presented by the parties at the hearing, the court hereby denies each of the defendant's motions. The court's reasoning follows.

A. Request for a Preliminary Hearing

In support of his request for a preliminary examination, the defendant, Ompy Tosy, asserts that in addition to being arrested, his liberty was significantly restricted following his initial appearance before the court. The court's February 15, 2007 order set Tosy's release conditions. Tosy was released on his own recognizance and his travel was restricted to the State of Chuuk.

In the matter at hand, Tosy was arrested on or about January 6, 2005. He was released shortly after his arrest. Approximately two years later, on February 8, 2007, the government filed a criminal information against Tosy. This information included an affidavit from Antonio Aiken, averring that he was a Detective at the Chuuk State Department of Public Safety who was tasked with investigating an incident involving Tosy, in which a weapon was found allegedly in Tosy's possession.

Based upon the government's filing of an information with Antonio Aiken's accompanying affidavit, the Court, having concluded that probable cause existed that certain crimes occurred and that Tosy committed those crimes, authorized the issuance of a summons, on February 8, 2007, commanding Ompy Tosy to appear before the court for his initial appearance. Tosy's initial appearance was held on February 15, 2007.

Under these circumstances, Tosy is not entitled to a preliminary examination. Indeed, and as the court has previously explained, because a prosecutor's assessment of probable cause is not sufficient alone to cause a restraint of liberty pending trial, a preliminary hearing is required if a defendant is to be detained pending trial or if significant restraints are to be placed on his liberty. FSM v. Wainit, 10 FSM Intrm. 618, 622 (Chk. 2002). However, by its terms, the statute providing for preliminary hearings for criminal defendants does not apply to a defendant who was summoned to appear before the court competent to try him. Id. at 622.

Accordingly, Tosy's request for a preliminary examination is denied.

B. Motion to Dismiss

The information filed against Tosy alleges three counts: 1) illegal possession of ammunition in violation of 11 F.S.M.C. 1002; 2) illegal possession of a firearm in violation of 11 F.S.M.C. 1002; and 3) possession of a firearm without an identification card in violation of 11 F.S.M.C. 1006(1).

In support of his motion to dismiss the information, Tosy raises two arguments. First, he maintains that the allegations in the information, including the accompanying affidavit of Antonio Aiken, fail to establish probable cause to believe that Tosy possessed ammunition and a firearm in violation of 11 F.S.M.C. 1002.

However, and as noted above, the court, having previously reviewed the information, including Aiken's affidavit, and having determined that probable cause existed to believe that certain crimes occurred and that Tosy committed those crimes, issued a summons for Tosy to appear before the court for his initial appearance. Thus, Tosy's various arguments concerning a lack of probable cause, including any discrepancy in the dates cited for his arrest  either January 5, 2005, as cited in the affidavit of Antorino Aiken, or January 6, 2005, as cited in the police reporter introduced as evidence during the hearing in this case  are simply misplaced at this point.

Second, Tosy argues that the information's second count should be dismissed because the weapon he allegedly possessed was inoperable. Under 11 F.S.M.C. 1003(2), the provisions of Chapter 10 of Title 11 of the FSM Code do not apply to firearms which are in unserviceable condition and which are incapable of being fired or discharged and which are kept as curios, ornaments, or for their historical significance or value.

Tosy failed, however, to produce any evidence to substantiate his claim that the weapon he allegedly possessed is in unserviceable condition, such as producing the weapon itself, or even a witness's report on the condition of the weapon, and that it was kept as a curio, an ornament, or for historical purposes. Instead, his counsel argued that despite his repeated discovery requests, the government had failed to provide him with access to the firearm that Tosy allegedly possessed so that it could, in turn, be inspected. This argument, however, is more appropriately suited for a motion to compel discovery, rather than a motion to dismiss. Moreover, Tosy is free to raise at trial the defense that the weapon he allegedly possessed falls within the exemption set forth at 11 F.S.M.C. 1003(2).

In short, Tosy's motion to dismiss the information filed against him, including any of the counts separately listed in that information, is hereby denied.

C. Motion to Suppress Certain Evidence

In support of his motion to suppress his alleged confession of possessing a firearm and ammunition from being introduced at trial by the government, Tosy argues that while in custody, the officials at the Chuuk State Department of Public Safety who detained and interrogated him, failed to first advise him of his rights under the FSM Constitution, including his right to remain silent. In furtherance of this argument Tosy testified that while he was detained he was never advised that he had the right to remain silent and that anything he did say may be used against him later at trial.

Chuuk State Department of Public Safety Investigator Atrina Mori testified that she was present when Tosy was interrogated and that she personally witnessed the interrogating officer, Antonio Aiken, advise Tosy of his rights, including his right to remain silent, prior to Tosy's interrogation which culminated in his confession to possessing the weapon and ammunition at issue in this case. In support of her testimony, Officer Mori testified that Tosy was advised of his rights on January 7, 2005, and that he appeared to understand his various rights as they were explained to him, and that his subsequent confession was made voluntarily. Officer Mori further testified that she saw Tosy initial and sign an Advice of Rights form, which was admitted, Def. Ex. A.

Based upon the testimony of the witnesses, including their respective demeanor in the courtroom during the hearing held in this case, the court concludes that Tosy was properly advised of his rights, including the right to remain silent, before he purportedly confessed to possessing a firearm and ammunition. Accordingly, the motion to suppress Tosy's confession is hereby denied.

With regard to his motion to suppress the weapon and ammunition that were seized from him at the time of his arrest from being introduced as evidence at trial, Tosy argues that the police officers who arrested him did not have a search warrant to search his zippered waist bag, which contained the weapon and ammunition that he is being charged with unlawfully possessing. Tosy also claims there was no probable cause to support a search of this bag, and as such, the weapon and ammunition that were discovered in the bag must be suppressed.

It is not unreasonable for police, as part of the routine incident to an arrest, to search any container or article in the arrestee's possession or in his vicinity. Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App. 1985) (constitutional search may be conducted without a warrant if the search is incidental to a lawful arrest); FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006) (searches incidental to a lawful arrest, and inventory searches, are exceptions to the Constitution's warrant requirement, and, as such, do not violate the Constitution's prohibition of unreasonable searches). The justification for such searches does not rest on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the search.

Tosy was driving a taxi when he was arrested and taken into custody. The zippered waist bag that he had was searched incident to his arrest because the bag was in close proximity to Tosy (Tosy says it was under his seat) when he was arrested and the officers discovered the bag and searched it. As such, the search of that bag was not only reasonable, but lawful. Yinmed v. Yap, 8 FSM Intrm. 95, 100 (Yap S. Ct. App. 1997) (an officer making an arrest has a limited right to conduct a warrantless search incident to that arrest for the limited purposes of preventing the arrestee from reaching concealed weapons to injure the officer or others, and from destroying evidence). Tosy's assertion that the police lacked probable cause to conduct a search of the bag is simply immaterial to the reason that such a search was even conducted.

Accordingly, Tosy's motion to suppress the weapon and ammunition that were found in the bag that was searched following his arrest is hereby denied.

D. Conclusion

In conclusion, and for the reasons set forth above, Tosy's request for a preliminary examination is denied, as are his motions to dismiss and to suppress certain evidence.