My continuing battle – MMJ Defense in American Samoa. Part 1 located here.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO SUPPRESS
As I begin this post, there’s one thing that bothers me. Many people may perceive these blogs as a prideful statement of my circumstances. I need to take a moment and be clear.
I am very sorry for the circumstances I find myself in today. When I graduated with my Bachelors of Science and made plans to head out into the Pacific Ocean to fight the impacts of plastic pollution, many people were proud of the decisions I was making. I had a large number of supporters who knew I was going to make a difference. This effort is ongoing and will not be deterred due to these circumstances.
These people who supported me, I let them down. For this I am very sorry and I apologize to them all. I did not leave on this journey planning to spend nearly 3/4 of a year locked behind bars, unable to receive qualified and attentive legal council for traveling with medications that improve my quality of life by easing the pain, anxieties and ADHD that I struggle with. Many people have asked, why this medicine. As a recovered Crack Addict, I don’t like chemical synthetic narcotics and the way they make me feel. These ‘legal drugs’ have a negative impact on many people and American Society as a whole. I would like to note that I didn’t pack a few bags of smoking marijuana to get high with along the way, I brought with me processed medications, legally purchased as a licensed MMJ card holder.
I haven’t taken a lot of time to talk about the conditions of my stay at Tafuna Correctional Facility and the treatment I received. While I have a pending complaint before the Attorney General’s office for lack of sanitary conditions and medical care, I also have a pending legal case at hand. As I prepare the blogs regarding these circumstances, I will have them reviewed by legal council prior to public disclosure.
What I can tell you today is the story of getting of landing in American Samoa as a first time visitor. My experience was quite unexpected to say the least. The first thing that I noticed when getting off the airplane was that there was no building we walked into directly from the plane, as is customary in most airports. Instead passengers climb down a flight of stairs and walk in line to the baggage claim area. Before entering any type of building, U.S. Customs agents walk a drug dog past each person as they are in line to enter the building. This happened to me, and the agent walked right past me. It wasn’t until after the agent was 3 or 4 people past me that the agent came back to me and pulled me out of line. After walking the dog around me, it’s alleged that the dog triggered on me. Shortly afterwards, I was taken into a back room, where multiple agents piled in and began questioning me. The following is a motion, filed in the High Court of American Samoa. It alleges that the agents violated my rights, and that one in particular was determined to find cocaine on me, using a piece of sugar candy from my backpack in a drug test to prove that I was carrying such drugs. While this test was omitted from all reports by Customs and Police, statements I made while they attempted to peg me for cocaine trafficking were not. As a recovering crack cocaine addict with 10 years free from crack, this was an abomination to me. Based on these actions, this motion to suppress evident was filed as part of the public records attached to my case. The hearing on this motion has been set for June 23rd at 9 am. As this is an ongoing case, there is a legal fund that has been established to assist with financial expenses. Donations can also be sent directly to the Law offices listed below.
THE LAW OFFICES OF
MARK FREDERICK UDE
PO Box 5833, Pago Pago AS 96799
Tel: (684) 633-7878
Fax: (684) 633-7886
Attorney for Defendant
IN THE HIGH COURT OF AMERICAN SAMOA
AMERICAN SAMOA GOVERNMENT,
BRIAN BENJAMIN LOMA,
CR No. 52 – 15
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION TO SUPPRESS
COMES NOW THE DEFENDANT, by and through Counsel, and hereby submits his Memorandum of Points and Authorities in support of his Motion to Suppress the search and seizure conducted by the Plaintiff.
Both the United States Constitution and the Revised Constitution of American Samoa forbid the improper stop and detention of Defendant as performed on 11 September 2015 by employees of Plaintiff. Defendant was improperly detained in violation of his Constitutional rights to be free from unreasonable searches, under both the Constitution of the United States and the Revised Constitution of American Samoa.
“Article I, § 5 of the Revised Constitution of American Samoa Guarantees the right of individuals ‘to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’” American Samoa Gov’t v. Dunham, 1 A.S.R. 3d 176, 177 (Trial Div.1997); See also American Samoa Gov’t v. Pino, 1 A.S.R. 3d 186 (1997).
The Fourth Amendment of the United States Constitution, because of the Fourteenth Amendment, applies to the States. See Mapp v. Ohio, 367 U.S. 643 (1961). In the matter before us, the American Samoa Government, by way of Employees of the Customs Department, decided to stop Defendant based solely upon an “alert” by a K-9 named Benny.
A person is considered seized under the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would not believe that he was free to leave. See United States v. Mendenhall, 446 U.S. 544. 554 (1980). Seizure of a person is defined by a meaningful interference, however brief, with an individual’s freedom of movement. See Maryland v. Macon, 472 U.S. 463 (1985). In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court issued an opinion that when a law enforcement officer restrains the freedom of an individual to walk away, the person is considered “seized” at that point. ASG (and its employees) are constrained from doing anything more than a “pat-down” search for dangerous weapons. A more detailed search is unjustified. For example, a Court struck down the subsequent seizing of an envelope and an examining of its contents, as these acts were not reasonably construed to discover instruments of assault. See United States v. Thomson, 597 F.2d 187 (9th Cir. 1979).
Even more importantly, a stop cannot be justified by future events; the founded suspicion must be based upon the knowledge known to the officers at the time of the initial stop. See United States v. Patterson, 648 F.2d 625, 634 n.25 (9th Cir. 1981); see also United States v. Morrison, 546 F.2d 319 (9th Cir. 1976).
By asking Defendant to accompany ASG personnel to another room, and without indicating that Defendant was free to depart, any search of his luggage was done while Defendant was considered to be under arrest. Probable Cause did not exist at the time of this search, and any alleged consent would be considered tainted by the illegal search and thus inadmissible. See Florida v. Royer, 460 U.S. 491 (1983).
Most importantly, the customs officer who engaged in the search and seizure only did so after allegedly observing an “alert” by K-9 Benny to Defendant. Defendant had not yet approached the Inspection booth for examination. More importantly, there was no evidence found that would justify an alert, as there was no marijuana on the Defendant. Candy bars that were still sealed containing THC were not sufficient to trigger any alert. Therefore, the “alert” by K-9 Benny was non-existent and nothing more than a random selection.
The search and seizure of Defendant should be considered arbitrary and capricious, or even as a result of deductive reasoning, as the customs officer had only his misplaced reliance upon the allegation by an “informant” who cannot be cross-examined that a violation had been committed by Defendant.
“The people of American Samoa are protected by the due process clause in the 5th Amendment to the Constitution of the United States. See Balzac v. Porto Rico, 258 U.S. 298 at pp. 312-2.” Government v. Soliai, 2 A.S.R. 600.
Such a stop is nothing more than a pretextual stop based upon a hunch and lacking any criminal activity. See Whren v. Untied States, 116 S. Ct. 1769 (1996); See also, e.g. C.V.H., a Child v. State, 557 So. 2d 927 (Fla. 5th Dist. Ct. App. 1990)(stop for traffic infraction disapproved where true purpose was to investigate defendant’s presence in an area known for crack-related activity); Arnold v. State, 544 S.2d 294 (Fla.2d Dist. Ct. App. 1989)(unlawful pretextual stop for merely crossing over the center line of roadway); Monroe v. State, 543 So. 2d 298 (Fla. 5th Dist. Ct. App. 1989)(bad stop for mere bald tire); Porcher v. State, 538 So. 2d 1278 (Fla. 5th Dist. Ct. App. 1989)(pretext for following traffic too closely); Brooks v. State, 524 So. 2d 1102 (Fla. 3d Dist. Ct. App. 1988)(pretextual stop found due to improper start of motor vehicle).
Because the basis for the stop involved an “alert” that proved to be false, any evidence seized by customs does not justify criminal prosecution or enforcement by the American Samoa Government, and the circumstances regarding this situation become equivalent to following a “tip” by a third party. Such situations are addressed in Terry v. Ohio, 392 U.S. 1 (1968). They were further addressed in Adams v. Williams, 407 U.S. 143 – Supreme Court 1972. In Adams, the Supreme Court discussed the need for the reliability of an informant and the safety of the officer (who was alone and found the unseen gun exactly where the informant had described that it would be). And the Adams Court, in citing Terry, indicated how far it would allow a police officer to approach, detain, search, and legally arrest a suspect based solely upon an informant’s tip:
“So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. Id, at 30. Applying these principles to the present case, we believe that Sgt.Connolly acted justifiably in responding to his informant’s tip. The informant was known to him personally and had provided him with information in the past.” Adams, Supra.
Here, the stop and subsequent arrest are completely without substantiation by the information allegedly provided to employees of Plaintiff from the “alert” by the K-9 Benny. Instead of finding items that would have provided the basis for a legitimate alert, Defendant was not in possession of anything that would trigger such an “alert” based upon the standards set forth by K-9 training. There was no genuine basis observed by the employees of the American Samoa Government for stopping and detaining Defendant. Defendant was stopped by the employees of the American Samoa Government solely due to an unsubstantiated “alert” that did not have a reliable basis for enforcement. Informants do not share the same veracity or reliability as wanted flyers. See United States v. Hensley, 469 US 221 – Supreme Court 1985.
Such claims by informants are considered unreliable and have consistently been struck down by the Supreme Court.
“An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).” Florida v. JL, 529 US 266 – Supreme Court 2000.
More importantly, the personal observations did not corroborate the tip. The officer did not observe any erratic behavior, nor was there an aroma noticeable to the officer that could indicate that the Defendant was in possession of a controlled substance.
“Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer’s prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped. We speak in today’s decision only of cases in which the officer’s authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.” Florida.
Failure by the customs officer and, more importantly, the American Samoa Government, to determine the reliability of the “alert” being justification for a secondary search of Defendant makes the information and/or policy a per se violation of the Fourth Amendment. Defendant therefore requests that the basis for the search and seizure be ruled unconstitutional and the results of that search be Suppressed. The absence of corroboration that would justify Reasonable Suspicion is evidence that there is no basis for relying in good faith upon said information and/or policy.
“In the absence of any corroborative information or observation, a police officer is not authorized to stop a vehicle on the sole basis that a passing motorist points to a vehicle and announces that it is being driven by a drunk driver.” Campbell v. State of Washington Department of Licensing, 644 P.2d 1219 (Wash. App. 1982).
Likewise, an officer cannot simply stop any person at an airport. Here, without corroborating evidence, any detention based upon an unsubstantiated “alert” should be unlawful. Customs officers, absent a threat of harm or exposure to danger, must have a legitimate basis to stop a person traveling within his Constitutional rights. Otherwise the customs officer in question is merely deciding that the K-9 tipster’s information is reliable per se. Such leeway would allow officers to conduct investigatory detentions that are made solely upon a hunch from an animal that has misconstrued innocent conduct and brands it criminal. See also, Olson v. Commissioner of Public Safety, 371 N.W.2d 552 (Minn. 1985); Oregon v. Black, 721 P.2d 842 (Or. 1986); State v. Stuart, 452 S.E. 2d 886 (W. Va. 1994); Mix v. State, 893 P.2d 1270 (Alaska App. 1995).
Indicia of Custody
There are six indications the Court uses to determine if, in fact, a suspect has been taken into custody:
“In United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir. 1990), the Eighth Circuit provided six ‘indicia of custody’ which can be used in determining whether the police have taken a suspect into custody: (1) whether the suspect was informed at the time of the questioning that the questioning was voluntary; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect initiated contact with the authorities or voluntarily acquiesced to officer requests to respond to questions; (4) whether strong-arm tactics or deceptive stategems were employed during questioning; (5) whether the atmosphere of the questioning was police dominated; or (6) whether the suspect was placed under arrest at the termination of the questioning.” Am. Samoa Gov’t. v. Galea’i, 10 A.S.R.3d 170, 172-73 (Trial Div. 2005).
Upon review of all these six factors, each and every one indicate that Defendant was in custody. Not one of the facts provided give any basis that Defendant was not considered to be in custody.
“In Miranda v. Arizona, the Supreme Court determined that when an individual is taken into custody, the Fifth and Fourteenth Amendments’ prohibition against compelled self-incrimination requires that an individual be properly notified of the right to remain silent, the right to the presence of an attorney, and warned that anything he says can be used against him in a court of law. 384 U.S. 436, 478-79 (1966). Unless anduntil such warnings are given, and a knowing and intelligent waiver of them are demonstrated by the prosecution, no evidence obtained as a result of interrogation can be used against him. Id., at 479.” Am. Samoa Gov’t v. Savea, 10 A.S.R.3d 162, 168 (Trial Div. 2005).
Because no Miranda warnings were provided to Defendant the result is clear. Whenever a suspect, who under the circumstances was determined to be in custody, any statements and subsequent fruit should be suppressed.
Subsequent interrogation deemed unlawful
Here, Defendant was taken to a separate room, where he was accused of having drugs. Defendant denied such accusation.
“A criminal must be apprised of his or her rights, including the right to remain silent, whenever the accused is subject to a custodial interrogation. Miranda v. Arizona, 384 U.S. 436. 444 (1966).” American Samoa Gov’t v. Faletogo, 4 A.S.R.3d 190, 194 (Trial Div. 2000).
While Defendant was in custody, a customs officer then wrongfully accused Defendant of attempting to bring cocaine into the Territory of American Samoa, and subsequently coerced a confession from Defendant prior to giving any Miranda warnings.
“An interrogation takes place when a police officer asks accusatory, rather than investigatory, questions, intended to elicit a confession rather than preliminary and general information. American Samoa Gov’t. vs. Taylor, 19 A.S.R.2d 105, 106-7 (Trial Div. 1991).” Faletogo, at 194.
Because this subsequent confession was obtained prior to any warning of his right to silence, the questioning was unconstitutional. Custodial interrogation occurs when questioning has been initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way. See American Samoa Gov’t v. Tavale, 8 A.S.R.3d 119 (Trial Div. 2004).
“Under Miranda, an accused must be warned of his rights, and must have made a knowing, voluntary and intelligent waiver of these rights prior to custodial interrogation by the police. Id. at 479. We apply the Miranda principle in American Samoa. See Am. Samoa Gov’t v. Malota, 4 A.S.R.2d 101, 105 (Trial Div. 1987).” American Samoa Gov’t v. Kava, 4 A.S.R.3d 240, 246 (Trial Div.2000).
Defendant was not informed of his rights under Miranda, and therefore the American Samoa Government engaged in unconstitutional acts to the Defendant’s detriment. Where facts are in dispute as to whether an arrestee was fully informed of his Miranda rights, the court may take issue regarding the experience and training of the officer. See American Samoa Gov’t v. Kaplan, 3 A.S.R.3d 86. Regardless, the burden is upon the Plaintiff to prove otherwise.
“Plaintiff American Samoa Government (“ASG”) ‘bears the burden of proving by a preponderance of the evidence that a defendant waived his Miranda rights.’ United States v. Garibay, 143 F.3d 534, 536 (9th Cir. 1998); see also Colorado v. Connelly, 479 U.S. 157, 168 (1986). Likewise, ASG ‘bears the burden of proving by a preponderance of the evidence that [a] statement was voluntary.’ United States v. Braxton, 112 F.3d 777, 781 (4th Cir. 1997).” Am. Samoa Gov’t v. Malala, 7 A.S.R.3d 49, 53 (Trial Div. 2003).
Here, the failure to advise Defendant of his Miranda rights is at odds with the aforecited burden, as the same employees of the American Samoa Government were under the erroneous belief that Defendant was in possession of cocaine. Such blatant accusations terrified Defendant, who was not in possession of cocaine and worried that he was actually being framed for this crime.
“Even if a suspect waives his Miranda rights, a court must still determine whether his confession was voluntary and obtained under the due process of law.” Malala, at 55.
Any confession made at this point would not be voluntarily given, based upon the totality of the circumstances: being locked in a room and being accused of a crime that Defendant did not commit.
“Also, voluntariness is determined by ‘whether the confession was extracted by any sorts of threats or violence, [or] by any direct or implied promises, however slight, [or] by the exertion of any improper influences.’United States v. Braxton, 112 F.3d 777, 780 (4th Cir. 1997)(internal quotations omitted). A confession is not voluntary if any of these circumstances show that ‘the defendant’s will has been overborne or his capacity for self-determination critically impaired.’ Id.(internal quotations omitted.” Malala, at 56.
Here, a recovering addict in his initial arrival to a strange environment was threatened with a crime that he did not commit. A Customs Officer added a liquid to one of Defendant’s blue “SweeTart” candies in his possession. The same Customs officer then thrust the blue colored solution into the Defendant’s face, claiming that the blue coloring indicated a positive test result for cocaine. Defendant knew he had not brough any cocaine into the Territory. And there was no legal basis for the Customs Officer to engage in any testing at that point. Nor was there any scientific indicia of reliability that there was, in fact, cocaine. All Plaintiff had was an indication (after putting a blue “SweeTart” candy into a solution) of a blue coloring of a solution and an unsubstantiated claim (unknown to Defendant at the time) that the blue coloring meant a positive result for cocaine. The totality of these circumstances brought into question not only the fairness of what passed for legal proceedings in the Territory of American Samoa, and/or whether his status of a recovering addict would, in fact, interfere with his ability to prove his innocence of the trumped up charge of possessing cocaine. It not only scared the Defendant, it should scare the Court.
While no Miranda warnings were provided to Defendant, the Court has previously held that such warnings are sometimes not enough based upon the illegality of the subject’s arrest at the time.
“The mere giving of Miranda warnings is not sufficient to sever the causal relationship between an illegal arrest and a confession; it alone cannot constitute an ‘intervening circumstance.’ American Samoa Gov’t v. Sefo, 21 A.S.R.2d 32, 37 (Trial Div. 1992).
Defendant was finally provided with a paper form later the following morning, where his rights under Miranda were provided in writing. However, this does not suffice under close scrutiny.
“As we stated in Malota, ‘[t]o advise someone…that he has a right against self-incrimination after the fact of incrimination is utterly without purpose.’ Malota, 5 A.S.R.2d at 105. Because the post-warning confession was ‘hopelessly tainted by the contemporaneity of occurrences, so that it may not be seen as the product of rational choice, and thus not voluntary,’ the custodial statements made by Fa’amanu should be properly suppressed also. Id.” American Samoa Gov’t. v. Talipope, 9 A.S.R.3d 129, 133 (Trial Div. 2004).
Because of the earlier tainting, even when the written Miranda form that was provided to Defendant, it was, by then, too late to remedy the unconstitutional acts committed by ASG employees.
Furthermore, there was no probable cause to conduct the warrantless search of Defendant by ASG.
“On the foregoing, we hold that defendant Luki’s statements made to Lt. Suamataia at the Fagatogo police station on the morning of March 8,1992, must be excluded, since the government has failed to show that the defendant was, at the time he made the statements in question, arrested and detained upon ‘probable cause,’ within the meaning of Rev. Const. Am.Samoa Art. I, § 5; or ‘reasonable grounds’ within the meaning of A.S.C.A.§ 46.0805(3), Won Sun, supra.” American Samoa Gov’t v. Luki, 21A.S.R.2d 82, 84 (Trial Div. 1992).
However enthusiastic the customs officer on duty was, his enthusiasm to conduct a search without reasonable suspicion based on nothing more than following an uncorroborated tip is an insufficient basis for a detention stop. And while the police officer may have been suspicious, such suspicion was not reasonable, due to Defendant not having anything in his possession to corroborate the alert, and thus there was no legitimate basis for a stop of Defendant. Therefore, the basis for the stop was unlawful, and the stop, the seizure of goods, the statements, the field tests and the subsequent arrest should all be suppressed as a consequence of Plaintiff’s illegal actions.
Dated: _____________ 2016 ____________________________
Mark Frederick Ude
Attorney for the Defendant