FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2008-1505

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

NECHUNI MAISER SIPPA,
Defendant.

_____________________________________

ORDER SUPPRESSING EVIDENCE AND SETTING TRIAL

Ready E. Johnny
Associate Justice

Hearing: December 11, 2008
Decided: January 5, 2009

APPEARANCES:

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

[16 FSM Intrm 248]

 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  Information
 A motion to dismiss the information will be denied when the information is sufficiently definite and unambiguous for the accused to be apprised of the charge against him and for him to prepare his defense and when it is sufficiently detailed to enable him to plead the case as a bar to any future prosecution for the same offense. FSM v. Sippa, 16 FSM Intrm. 247, 249 (Chk. 2009).

Criminal Law and Procedure  Interrogation and Confession
 A motion to suppress an accused's statement made while in police custody will be granted when the accused was unlawfully detained since he was held over 24 hours without being charged or brought before a judge and when the prosecution failed to prove that the custodial statement was given within 24 hours of his arrest. FSM v. Sippa, 16 FSM Intrm. 247, 249 (Chk. 2009).

Criminal Law and Procedure  Arrest and Custody
 A person is considered "arrested," for the purposes of the right to be advised of his right to remain silent when the person's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime. FSM v. Sippa, 16 FSM Intrm. 247, 249 (Chk. 2009).

Criminal Law and Procedure  Interrogation and Confession
 Although routine questioning by government agents does not require a rights warning to be given beforehand since the purpose of this type of procedural questioning is not to compel the person being questioned to incriminate himself, but when the questioning was not routine since the state police officer, who questioned the accused for 30 minutes outside of where he lived, did so because a complainant had named the accused as the person who had earlier possessed and discharged a firearm in her presence and when the accused was thus already a suspect and the officer's questioning was designed to elicit incriminating statements and to produce incriminating evidence while the accused's freedom of movement was substantially restricted or controlled by the officer exercising official authority, the officer should have informed the accused of his rights before the questioning went very far. FSM v. Sippa, 16 FSM Intrm. 247, 249 (Chk. 2009).

Criminal Law and Procedure  Interrogation and Confession; Search and Seizure
 When, after the accused had been questioned for some time without being informed of his rights, the accused went into his residence, retrieved a handgun and five shells, and came out and turned the gun and ammunition over to the officer, the firearm was not seized as the result of an illegal search because the police officer did not conduct a search of the residence or even enter it, but since the accused's surrender of the handgun and ammunition was the result of the officer's questioning and the incriminating statements made when the accused was interrogated without having been informed of his rights, the handgun and ammunition are thus inadmissible as they are the fruit of the poisonous tree. FSM v. Sippa, 16 FSM Intrm. 247, 249 (Chk. 2009).

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[16 FSM Intrm 249]

COURT'S OPINION

READY E. JOHNNY, Associate Justice:

 On December 11, 2008, this came before the court on defendant Nechuni Maiser Sippa's motions to dismiss and to suppress evidence. The motion to dismiss the information is denied. The information is sufficiently definite and unambiguous for Sippa to be apprised of the charge against him and for him to prepare his defense and it is sufficiently detailed to enable him to plead this case as a bar to any future prosecution for the same offense. Laion v. FSM, 1 FSM Intrm. 503, 516-17 (App. 1984).

 The motion to suppress the statement made while in police custody on August 2, 2008, is granted because Sippa was unlawfully detained since he was held over 24 hours without being charged or brought before a judge and the prosecution failed to prove that the custodial statement was given within 24 hours of his arrest. FSM v. Sam, 15 FSM Intrm. 491, 493 (Chk. 2008) (statement suppressed because, once the accused had established the government's unlawful act of holding the accused over 24 hours, it was the government's burden to show that the challenged evidence was not the result of that unlawful act). Sippa was arrested on Tolensom at about 8:30 a.m., on August 1, 2008 and escorted to the police station on Weno. The advice of rights form was timed and dated 10:00 a.m., August 2, 2008, and even if, as testified to by the interrogating officer, it was only executed in written form after Sippa's statement had been taken, the prosecution has still failed to meet its burden to show that the statement was voluntarily made within 24 hours of when Sippa was arrested  within 24 hours of when was first taken into custody on Tolensom. 12 F.S.M.C. 218(4), 220. A person is considered "arrested," for the purposes of the right to be advised of his right to remain silent when the person's freedom of movement is substantially restricted or controlled by a police officer exercising official authority based upon the officer's suspicion that the detained person may be, or may have been, involved in commission of a crime. FSM v. Edward, 3 FSM Intrm. 224, 232 (Pon. 1987).

 The motion to suppress Sippa's statements made on July 31, 2008 and the seizure of a handgun and ammunition on that date are also granted. Although routine questioning by government agents does not require a rights warning to be given beforehand since the purpose of this type of procedural questioning is not to compel the person being questioned to incriminate himself, see Kosrae v. Sigrah, 11 FSM Intrm. 249, 255 (Kos. S. Ct. Tr. 2002), this was not routine questioning. The state police officer who, on July 31, 2008, questioned Sippa for 30 minutes outside of where he lived, did so because a complainant had named Sippa as the person who had earlier possessed and discharged a firearm in her presence. Sippa was thus already a suspect and the officer's questioning was designed to elicit incriminating statements and to produce incriminating evidence. Although this is a close case, the court finds that Sippa's freedom of movement was substantially restricted or controlled by a police officer exercising official authority when that officer questioned him for 30 minutes about the firearm discharge incident. Sippa therefore should have been informed of his rights before the questioning went very far. He was not.

 After Sippa had been questioned for some time, Sippa went into his residence, retrieved a handgun and five shells, and came out and turned the gun and ammunition over to the officer. Thus the firearm was not seized as the result of an illegal search. The police officer did not conduct a search of Sippa's residence; nor did he enter it. But Sippa's surrendering the handgun and ammunition was the result of the officer's questioning and the incriminating statements Sippa made when he was interrogated without having been informed of his rights. The handgun and ammunition are thus inadmissible since they are the fruit of the poisonous tree.

[16 FSM Intrm 250]

 Sippa's July 31, 2008 statements and the handgun and ammunition are therefore suppressed.

 Now therefore it is hereby ordered that the defendant Nechuni Maiser Sippa's motion to dismiss is denied and that his motion to suppress his July 31, and August 2, 2008 statements and the seizure of the handgun and ammunition are granted, and it is further ordered that defendant Nechuni Maiser Sippa shall appear on February 4, 2009, at 9:30 a.m. to enter his plea and that if a not guilty plea is entered then, trial will follow immediately thereafter.

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