FSM SUPREME COURT TRIAL DIVISION
CRIMINAL CASE NO. 2006-1501

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

PUNUN (DAS) SAM, SAMUEL WISUN, 
and CHENESY MILLER,
Defendants.
__________________________________________

ORDER SUPPRESSING STATEMENT

Dennis K. Yamase
Associate Justice

Hearing: January 18, 2008
Decided: January 30, 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: Melissa A. Dineen, Esq. (Wisun)
Office of the Public Defender
P.O. Box PS-174
Palikir, Pohnpei FM 96941

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HEADNOTES

Criminal Law and Procedure  Interrogation and Confession; Criminal Law and Procedure; Motions

The government has the burden of proving that an accused's statement is voluntary and thus admissible. Thus, although it was the defendant's motion to suppress, the government, because it has the burden, presented its side first at the suppression hearing. FSM v. Sam, 15 FSM Intrm. 491, 492-93 (Chk. 2008).

Constitutional Law  Interpretation; Criminal Law and Procedure

Although the court must first look to FSM sources of law to establish legal requirements in criminal cases rather than begin with a review of other courts' decisions, when the language in the FSM Constitution and the U.S. Constitution is similar or identical, it is appropriate to look to United States constitutional law and its courts's interpretations, especially those interpretations existing at the time of the Micronesian Constitutional Convention, as a guide to the intended scope of the FSM Constitution's words. FSM v. Sam, 15 FSM Intrm. 491, 493 n.1 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession; Search and Seizure

Where the court finds that an accused's statement was voluntarily made after he had been informed of, and understood his rights, and chose to waive those rights, that will not end the analysis if the accused has established a relationship between unlawful police activity and the evidence sought to be suppressed, because the burden is on the prosecution to show that the evidence is still admissible. FSM v. Sam, 15 FSM Intrm. 491, 493 (Chk. 2008).

Criminal Law and Procedure  Arrest and Custody; Criminal Law and Procedure  Interrogation and Confession

It is unlawful for the government to fail either to release or charge an arrested person with a criminal offense within a reasonable time, which must under no circumstances exceed 24 hours. Thus, evidence, such as an accused's statement, obtained as a result of the defendant being detained for more than 24 hours without being charged or released must be excluded. FSM v. Sam, 15 FSM Intrm. 491, 493 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession; Search and Seizure

When the defendant's advice of rights form waiving his rights was dated the day after his arrest and when the government presented no evidence as to the time of day on that the defendant made his statement on the day following his arrest or as to whether the statement was made within 24 hours of his arrest, the statement will be suppressed because once the defendant has established the government's unlawful act, it is the government's burden to show that the challenged evidence was not the result of that unlawful act. FSM v. Sam, 15 FSM Intrm. 491, 493 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession; Evidence

A defendant's suppressed statement may not be used against him at trial unless he chooses to testify on his own behalf, in which case, the statement may be used to impeach his credibility. FSM v. Sam, 15 FSM Intrm. 491, 493 (Chk. 2008).

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COURT'S OPINION

DENNIS K. YAMASE, Associate Justice:

On January 18, 2008, this came before the court for hearing on defendant Samuel Wisun's Motion to Suppress Evidence. Wisun seeks suppression of his statement made while in custody on January 16, 2006. Wisun asserts that his statement was coerced and involuntary and also that it must be suppressed because it was made after he had been in custody for more than 24 hours.

Wisun, Chenesy Miller, and Rakofich Kasmiro were arrested on Udot on January 15, 2006 and taken to the Chuuk Department of Public Safety on Weno, arriving there sometime that afternoon. Wisun, Miller, and Kasmiro were interrogated one after another. When Miller was interrogated on January 15, 2006, he and the witnessing officer signed and dated an advice of rights form. Ex. D-2. Wisun's advice of rights form was signed and dated by him and by Officer Kulian William on January 16, 2006. Ex. 1. Wisun, Miller, and Kasmiro were still detained there when they were charged and made their initial appearance in this case on January 19, 2006 and remained in custody for some time thereafter.

The government has the burden of proving that an accused's statement is voluntary and thus admissible. See generally 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 10.3(c) (1984). Thus, although it is the defendant's motion to suppress, the government, because it has the burden, presented its side first at the suppression hearing. The government called Lt. Iosichy James, of Chuuk Public Safety, who testified that he had informed Wisun of rights before he interrogated him and that Wisun understood those rights and had then waived them. Wisun's January 16, 2006 advice of rights form, which indicated that James was the officer who had advised Wisun of his rights, was admitted as evidence. Ex. 1. Also admitted into evidence were Wisun's statement, Ex. D-1, and the advice of rights form executed by Chenesy Miller on January 15, 2006, Ex. D-2.

Based on the evidence before it, the court finds that Wisun's statement was voluntarily made after he had been informed of, and understood his rights, and chose to waive those rights. That however does not end the analysis because once an accused has established a relationship between unlawful police activity and the evidence sought to be suppressed, the burden is on the prosecution to show that the evidence is still admissible. See FSM v. Inek, 10 FSM Intrm. 263, 265-66 (Chk. 2001) (whatever evidence obtained pursuant to an unlawful arrest may be suppressed, but not when the prosecution obtained the evidence from sources factually unrelated to violations of a defendant's rights).

It is unlawful for the government to "fail either to release or charge [an] arrested person with a criminal offense within a reasonable time, which under no circumstances shall exceed 24 hours." 12 F.S.M.C. 218(4). Thus, evidence, such as an accused's statement, obtained as a result of the defendant being detained for more than 24 hours without being charged or released must be excluded. 12 F.S.M.C. 220; FSM v. Louis, 15 FSM Intrm. 206, 210 (Pon. 2007).

Wisun's advice of rights form had a place next to Wisun's signature line for him to indicate the "Date and Time" he signed it. It only contained the date  "1-16-06." It also had a place next to the witness's signature line for the witnessing police officer, Kulian William, to indicate the "Date and Time" he signed as a witness. Again, it only contained the date  "01/16/06." It is theoretically possible that the advice of rights could have been signed, Wisun could have then been interrogated, and his statement made, all before the 24-hour deadline expired sometime on January 16, 2006. There was, however, no evidence presented by the government as to the time of day on the 16th that Wisun made his statement or whether it was within 24 hours of his arrest on Udot.

Once the defendant has established the government's unlawful act, it is the government's burden to show that the challenged evidence was not the result of that unlawful act. See 1 LaFave & Israel, supra, § 10.3(c), at 794. Here, the government has failed to show that Wisun's statement was not the result of its unlawful act of failing to charge or release Wisun within 24 hours of his arrest. Accordingly, Wisun's statement is suppressed. It may not be used against him at trial unless he chooses to testify on his own behalf, in which case, the statement may be used to impeach his credibility. Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46, 28 L. Ed. 2d 1, 4-5 (1971); cf. FSM v. Wainit, 11 FSM Intrm. 186, 191 (Chk. 2002) (late-disclosed evidence may be suppressed for use in the government's case-in-chief, but allowed for use in rebuttal).