FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2007-1528

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

BRAD SATO,
Defendant

ORDER DENYING MOTIONS AND SETTING TRIAL

Ready E. Johnny
Associate Justice

Hearing: July 9, 2008
Decided: July 15, 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: William E. Minkley, Esq.
Office of the Public Defender
P.O. Box 754
Weno, Chuuk FM 96942

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HEADNOTES

Criminal Law and Procedure  Dismissal; Criminal Law and Procedure  Motions
Criminal Procedure Rule 12(a) abolished motions to quash an information, but any relief possible under the common law motions and pleas abolished by Rule 12(a) may be sought by motion under Criminal Rule 12(b). Thus, if a motion to quash information is filed, it will be considered a Rule 12(b) motion to dismiss the information. FSM v. Sato, 16 FSM Intrm. 26, 28 (Chk. 2008).

Criminal Law and Procedure
When the court has not previously construed Criminal Procedure Rule 12(a), which is identical or similar to a U.S. counterpart, the court may look to U.S. sources for guidance in interpreting the rule. FSM v. Sato, 16 FSM Intrm. 26, 28 n.1 (Chk. 2008).

Criminal Law and Procedure  Information; Weapons
A criminal information will not be dismissed on the ground that it fails to allege that the weapon in question was a handgun of .22 caliber or greater because the information alleges that the defendant possessed a .22 handgun and because a handgun's caliber is irrelevant since 11 F.S.M.C. 1023(5) prohibits the possession of any handgun, regardless of caliber. FSM v. Sato, 16 FSM Intrm. 26, 28 (Chk. 2008).

Criminal Law and Procedure  Information
An information's fundamental purpose is to inform the defendant of the charges so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction, and an information deficient in these respects may be dismissed without prejudice. The test for a particular information's sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated therein. FSM v. Sato, 16 FSM Intrm. 26, 28-29 (Chk. 2008).

Criminal Law and Procedure  Information
To determine whether an information is deficient, the information and its supporting affidavit must be read together. FSM v. Sato, 16 FSM Intrm. 26, 29 (Chk. 2008).

Criminal Law and Procedure  Information
When the supporting affidavit specifically alleges that the defendant beat the victim on her head with the handgun, the information's assault allegation is more than adequate and the defendant's ground that the information fails to state with specificity the nature of the crime of assault alleged must be rejected. FSM v. Sato, 16 FSM Intrm. 26, 29 (Chk. 2008).

Criminal Law and Procedure  Dismissal
After prosecution has been initiated, the court may dismiss the case if there is no probable cause to believe that a crime has been committed, but a finding of probable cause may be based upon hearsay evidence in whole or in part. FSM v. Sato, 16 FSM Intrm. 26, 29 (Chk. 2008).

Search and Seizure
When no search or arrest warrant had been issued or sought and the defendant moves to suppress the evidence seized, although it is the defendant's suppression motion, it is the government's burden to prove that the seizures were reasonable and therefore lawful under section 5 of article IV of the FSM Constitution. FSM v. Sato, 16 FSM Intrm. 26, 29 (Chk. 2008).

Search and Seizure  Plain View
A warrant is not necessary to authorize seizure and the seizure is therefore reasonable when the contraband or the instrument of a crime is in plain view of a police officer who has a right to be in the position to have that view so that when the handgun, and the bag the officer saw the accused put the gun into, were in the officers' plain view because they were responding to an emergency call and were thus in a place where they had a right to be the motion to suppress the seizure of the handgun will be denied. FSM v. Sato, 16 FSM Intrm. 26, 29-30 (Chk. 2008).

Criminal Law and Procedure  Arrest and Custody; Criminal Law and Procedure  Interrogation and Confession; Evidence
Evidence and statements lawfully obtained from a defendant before he had been illegally detained over 24 hours will be admissible, but the defendant is entitled to the suppression of any evidence or statements obtained from him after his first 24 hours of detention. FSM v. Sato, 16 FSM Intrm. 26, 30 (Chk. 2008).

Criminal Law and Procedure  Dismissal; Criminal Law and Procedure  Interrogation and Confession; Evidence
The remedy for a defendant's unlawful detention over 24 hours is not the dismissal of the information against him or the suppression of all evidence and statements obtained from him. His only remedy in a criminal prosecution (as opposed to a civil suit) is suppression of any evidence obtained as a result of the illegal detention. FSM v. Sato, 16 FSM Intrm. 26, 30 (Chk. 2008).

Criminal Law and Procedure  Interrogation and Confession; Evidence
By statute, 12 F.S.M.C. 218, statements taken (even if made voluntarily) and evidence obtained as a result of a violation of the defendant's statutory right to be brought before a judicial officer without unnecessary delay are inadmissible, but when none of the evidence the defendant seeks to suppress was obtained as a result of his being detained for more than 24 hours, the motion to suppress will be denied. FSM v. Sato, 16 FSM Intrm. 26, 30 (Chk. 2008).

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COURT'S OPINION

READY E. JOHNNY, Associate Justice:

On July 9, 2008, this came before the court for hearing on defendant Brad Sato's motions to quash information and to suppress evidence, both filed June 12, 2008. The motions are denied.

I. Motion to Dismiss

Sato filed a motion styled as "Defendant's Motion to Quash Information." Criminal Procedure Rule 12(a) abolished motions to quash an information. However, any relief possible under the common law motions and pleas abolished by Rule 12(a) may be sought by motion under Criminal Rule 12(b). See 1A Charles Alan Wright, Federal Practice and Procedure § 191 (3d ed. 1999). Thus, whenever a motion to quash information is filed, it will be considered a Rule 12(b) motion to dismiss the information. Id. at 325; United States v. Davis, 148 F. Supp. 478, 479 (D.N.D. 1957); United States v. Hearne, 6 F.R.D. 294, 294 (E.D. Wis. 1946).

Sato contends that the information must be dismissed because it fails to allege 1) that the weapon in question was a handgun of .22 caliber or greater, 2) fails to state with specificity the nature of the crime of assault alleged in Count IV, 3) is unsupported by credible evidence, and 4) is based totally on unsubstantiated hearsay.

The first ground is rejected because the information alleges that Sato possessed a .22 handgun and because a handgun's caliber is irrelevant since 11 F.S.M.C. 1023(5) prohibits the possession of any handgun, regardless of caliber.

An information's fundamental purpose is to inform the defendant of the charges so that he may prepare his defense, and to advise the court of the facts alleged so that the court may determine whether those facts, if proven, may support a conviction, and an information deficient in these respects may be dismissed without prejudice. FSM v. Moses, 9 FSM Intrm. 139, 145 (Pon. 1999). The test for a particular information's sufficiency is whether it is fair to the defendant to require him to defend on the basis of the charge as stated therein. FSM v. Xu Rui Song, 7 FSM Intrm. 187, 189 (Chk. 1995).

To determine whether an information is deficient, the information and its supporting affidavit must be read together. FSM v. Sam, 15 FSM Intrm. 457, 460-61 (Chk. 2007); State v. Ecker, 792 P.2d 1079, 1081 (Mont. 1990). Since the supporting affidavit specifically alleges that Sato beat the victim on her head with the handgun, the assault allegation is more than adequate and Sato's second ground must therefore be rejected.

Sato's third and fourth grounds for dismissal are based on his point that the supporting affidavit contains hearsay and not first-hand information and he therefore contends that no probable cause exists to believe that he committed an offense. After prosecution has been initiated, the court may dismiss the case if there is no probable cause to believe that a crime has been committed, FSM v. Mudong, 1 FSM Intrm. 135, 140 (Pon. 1982), but a finding of probable cause may be based upon hearsay evidence in whole or in part, FSM v. Wainit, 10 FSM Intrm. 618, 621 (Chk. 2002). The court must therefore reject grounds three and four.

The motion to dismiss is therefore denied.

II. Motion to Suppress

Sato also moves to suppress all physical evidence seized on December 26, 2007, including the handgun alleged to be in Sato's possession. When no search or arrest warrant had been issued or sought and the defendant moves to suppress the evidence seized, although it is the defendant's suppression motion, it is the government's burden to prove that the seizures were reasonable and therefore lawful under section 5 of article IV of the FSM Constitution. FSM v. Inek, 10 FSM Intrm. 263, 265 (Chk. 2001); FSM v. Joseph, 9 FSM Intrm. 66, 69 (Chk. 1999). The prosecution therefore called one of the arresting officers, Ritaichy Ruben, to testify.

Ruben's uncontroverted testimony indicated that on December 26, 2007, he and his partner responded to the report of an incident involving Sato and a girl at his house in Tunnuk above St. Cecilia School, and that when they arrived they were directed to Sato's house by two different bystanders. Ruben's testimony further indicated that when he and his partner arrived at Sato's house, they saw Sato sitting on a girl's legs, holding her head by her hair, and pointing a pistol at her face. They talked him into surrendering. Sato then put the gun in a bag and put his hands on his head. Ruben then arrested Sato and his partner seized the bag.

The handgun, and the bag Ruben saw Sato put the gun into, were thus in the officers' plain view. The officers, since they were responding to an emergency call, were thus in a place where they had a right to be. A warrant is not necessary to authorize seizure and the seizure is therefore reasonable when the contraband or the instrument of a crime is in plain view of a police officer who has a right to be in the position to have that view. FSM v. Mark, 1 FSM Intrm. 284, 294 (Pon. 1983). Sato's motion to suppress the handgun seized on December 26, 2008, on the ground that it violated Sato's constitutional right to be free from unreasonable searches and seizures is therefore denied.

Sato also sought to suppress any statements and all other evidence obtained because he was, after his arrest, held for three days before he was brought before a judicial officer. The prosecution responds that no one took a statement from Sato and that no other evidence was obtained from Sato during that time.

In any case of arrest it is unlawful 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. FSM v. Menisio, 14 FSM Intrm. 316, 319 (Chk. 2006). Evidence and statements lawfully obtained from a defendant before he had been illegally detained over 24 hours will be admissible, but the defendant is entitled to the suppression of any evidence or statements obtained from him after his first 24 hours of detention. Id. at 320. The remedy for a defendant's unlawful detention over 24 hours is not the dismissal of the information against him or the suppression of all evidence and statements obtained from him. Id. at 319. His only remedy in a criminal prosecution (as opposed to a civil suit) is suppression of any evidence obtained as a result of the illegal detention. Id.

By statute, 12 F.S.M.C. 218(5), 220, statements taken (even if made voluntarily) and evidence obtained as a result of a violation of the defendant's statutory right to be brought before a judicial officer without unnecessary delay are inadmissible, Menisio, 14 FSM Intrm. at 319-20, but when none of the evidence the defendant seeks to suppress was obtained as a result of his being detained for more than 24 hours, the motion to suppress will be denied, FSM v. Louis, 15 FSM Intrm. 206, 210 (Pon. 2007). Since none of the evidence that Sato seeks to suppress was obtained as the result of his detention over 24 hours, his motion to suppress is denied.

III. Conclusion

Accordingly, Sato's motion to dismiss and his motion to suppress are denied. Defendant Brad Sato shall therefore appear on September 17, 2008, at 9:30 a.m., to plea to the charges against him. If a not guilty plea is entered, trial shall follow immediately thereafter.

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