Suppression of Evidence, a win for the little guy

After 3 months of living island life for the reasons I came here for, things are beginning to look up.  But the number one thing about island life is that things take their time, often a slow slow time.  For someone who’s accustomed to a daily pace of action, this can be frustrating to say the least.  Fortunately, regardless of the pace of life on a whole, there is always work to do.  Unfortunately, the pace of typing updates is often hampered by the medical conditions which led  to my transporting my medications with me in the first place – continued and aggravated pain.

But this update is about something different.  Recently, team Loma filed a motion to suppress evidence based on multiple aspects and facts of the case. These factors focused on two primary conditions, the first being that I was in customs custody for 2.5 hours before the Department of Public Safety was contacted.  In those 2.5 hours a combination of factors led to the evidence that I was in custody and therefore should have been read my miranda rights.  These factors include: being held in room away from the general public with multiple officers in my presence at all times, being strip searched,  being escorted for all activities, being interrogated by multiple personnel, and being held for an extended period of time.

In testimony offered by customs agents several other factors were introduced.  The first of these being that the narcotics dogs did not have accurate and timely recertification required of service animals.   It was also exposed through Government testimony that testing products utilized by customs agents had color coded indicators which customs agents under oath could not conclusively testify the indication of a positive test.  Multiple officers provided conflicting testimony as to what positive identification of narcotics were.  Government witnesses also testified that both the procedures for handling a witness were inconsistent with policy and that there were previous instances in which one or more customs agents tested products which resulted in false positives.

In a seemingly unnoticed part of the testimony, prosecution witnesses indicated that they also used me as a submissive yet unwilling test dummy, a victim of potential brutality by government agents.  This occurred through the action of requiring me to face drug dogs in a  training scenario.  This scenario utilized multiple dogs running at me to train them for cannabis identification by placing a cannabis product on my person.   Part of this action may be due to the fact that the government does not indeed own any cannabis testing materials that are within testing guideline requirements, or in layperson terms – fresh enough to be used to train canines in identifying narcotics.

The combination of these circumstances has indeed produced a circumstances of positive results.  In a turn of good news, the court has ruled in favor of the defense!  They have determined that I should have been read my rights and that any statements made while in customs custody are inadmissible as through the culmination of events a reasonable person would have considered themselves in custody, not free to go under their own recognizance. Any activity that occurred before I was read my rights in not admissible.  This should lead to some positive activity moving forward in this case.

The Ocean Cleanup (Project)- Why are so many scientists skeptical?

Beach-polluted-with-plastic-bottles-Cap-Haitian-Haiti

Plastic pollution can be found on beaches globally.

Three years ago, I began writing and sharing about the problems of plastic pollution in our planets waterways.  Personally, I first heard about the problems of plastic in our ocean as part of a Biology class at my community college. The Midway Atoll – an example of Plastic’s Destructive Power was inspired by the information I began studying.  As I was in the process of continuing my education, I focused my studies on Environmental Science,Waste Management, Water and the processes of laws and environmental protection.  Additionally I began utilizing Social Media like Facebook and Twitter to begin watching the active efforts of those in the field.  These activists have stood united in several areas.  The first area is that consuming less plastic means less plastic waste.  The second is that capture at consumption points is the key to eliminating the growth of plastic in the ocean.  Then a few years ago, comes this Ted Talk and the resulting Clean Oceans Project – convincing many people that we have a solution to the problem of ocean plastics.

This prototype image uses a small station to collect captured surface plastic but will not capture sub surface plastics (Image: The Ocean Cleanup)

What I found out through these efforts to network with activists and scientists in the field, as well as through my own cleanup efforts is that there is not one single solution but a bounty of solutions that combined will make a global effort more realistic.  The needs to Reduce, Reuse and Recycle are laid out in this order for a reason.

In my adventures I have been able to meet fantastic people like Marcus Erickson of 5 Gyres and Stiv Wilson, now of The Story of Stuff .  Additionally, I follow many scientist’s work online.  In conjunction to my readings, I took to the field, leading a student group which I was president of my senior year partnered with Denver Park District to begin student led efforts to mitigate plastic and other forms of human consumption from our local waterway in downtown Denver, Colorado.  This last year they participated in a local contest to attempt to design ways to mitigate trash from the water.

These efforts have led me to learn a few things.  The first is that humans are messy destructive forces on nature.  Our consumption practices have deteriorated with time and the impact is everywhere.  Fortunately we have 1000’s of community groups fighting the problem.  Awareness campaigns like those held by 5 Gyres, Plastic Pollution Coalition, Activist Abby , Earth Guardians, and more show the simple fact that plastic pollution is everywhere.  Education and active practices with others in our community are the keys to eliminating wasteful habits that wreak havoc on our planet.

Defending Our Oceans Tour - Hawaii Trash (Hawaii: 2006)

Photo of a Greenpeace cleanup

 

I want to talk about  The Ocean Cleanup project.  Somewhere over the last 4 years as I began my campaign to do my part to educate about and eliminate wasteful plastic consumption this young man from Greece, Boyan Slat who in 2012 had a TedX talk that went viral.  After this effort, dozens of my friends sent me links to his work.  Some even made reference that this guy has solved the problem and my own little efforts are no longer necessary.  But lets not move on that belief to fast.  Fast forward 4 years, this month – a prototype of Boyan’s concept to clean plastics directly out of the ocean is being deployed.  Four years of recruiting, press, research and development have occurred.  According to the website, over 40 people have joined this team.  In terms of effort I say good for them, some people doing some good for the world.

Unfortunately, this is the part where truth begins to take an important role over fiction.  From the beginning, many people have asked questions.  Key scientific experts have offered their assistance, technical know how and experience.  For the average reader, much of this may be to technical so I’ll try to keep it simple.   Many groups are saying that their technical and scientific commentary has been ignored or rejected.  Whats worse is that the common person often perceives that this project, still in development mind you, means that the problem is solved and personal behavior practices don’t matter.

Why are there problems with cleaning garbage in the middle of the ocean, I mean isn’t cleaning trash a big deal?  Yes it’s a big deal, and eliminating pollution in the first place is one of the key aspects to a cleanup as noted in this 2013 blog.  Regardless of how much you pick up, humans keep making more.  This is the primary argument of both cleanup and sustainable living entities.  One of the biggest answers is LIFE.  There are 1000’s of forms of life that exist in the ocean and any time you build a new structure, it impacts the local lifeforms.  Impacts such as attracting new ‘life zones’, leaching of chemicals from introduced manufactured goods and localized collection.  But wait for it there’s more.

The key thing to understand is that only a portion of plastic floats.  Many plastics, as they break down due to photo-degradation, combined with surface layering of contaminants – can cause plastic to sink into various depths.  In all recent photos of the new prototype including video from the groups website, floating plastic is used.  However, this important PDF from Precious Plastic (Floating properties plastic ) we see that only 1/2 of plastics actually float!  So the key concept of this device to remove plastic from the ocean is starting out with a 50% loss ratio right off the bat!

There are many scientist and environmental groups who have tried to offer additional input on the project- as outside sources with no bias.  According to many, this outreach has been ignored and the concerns passed over when relating the project to the general public.  One of the biggest concerns for many is that this idea of cleaning plastic from the ocean ignores both the need to reduce consumption and the impacts of plastic particles like those consumed by aquatic life and found in the bellies of many animals.

Understand that the ocean is a huge place, 70% of our planet is ocean.  Utilizing the ocean currents to collect trash is a cool idea.  But if you’re in the middle of the ocean constructing a foreign structure, there are other logical items to consider, like visibility and location.  While the Oceans Cleanup project seems to be targeting location, unfortunately, according to this picture – visibility wasn’t as important of an idea.

Image from The Ocean Cleanup Media Department

Oil Spill booms with logo printed on them are being utilized in a trial setup.   Again note – these will only collect surface plastics.

The most important aspect of cleaning ocean plastics are preventing them from getting there in the first place.  By refusing to consume single use plastics, or not purchasing them in the first place, we all can have a direct impact on the amount of plastic in the ocean. Recycling and up cycling are the second part of the solution.  Supporting enhanced manufactures responsibilities like deposit programs and bottle bills helps ensure that the manufacturing loop is closed.  This type of deposit should apply to everything from beverage containers to televisions and automobiles.   Other ways you can reduce pollution are saying no to plastic straws, carrying your own beverage containers – even filling up at a soda fountain instead of taking the to-go container, and always carrying your own shopping bag(s) when you leave the house.

If you find that the amount of pollution on the ground and in the water in your neighborhood is a problem, you can always start your own community clean up group.  There are some excellent tips found here.

Partial list of Sources / Further reading:

http://www.theoceancleanup.com/updates/show/item/engineering-an-ocean-cleanup-barrier-from-scratch/

http://www.deepseanews.com/2013/03/the-ocean-cleanup-the-newest-of-the-new-plans-to-remove-marine-plastic/

http://www.deepseanews.com/2014/07/the-ocean-cleanup-part-2-technical-review-of-the-feasibility-study/

http://www.deepseanews.com/2016/06/the-ocean-cleanup-deployed-a-prototype-and-i-honestly-have-a-lot-of-questions/comment-page-1/#comment-19075

Three facts (and a lot of questions) about The Ocean Cleanup

http://inhabitat.com/the-fallacy-of-cleaning-the-gyres-of-plastic-with-a-floating-ocean-cleanup-array/

http://www.theoceancleanup.com/milestones/north-sea-prototype/

 

Employees Describe Slipping Into Homelessness While Working at REI

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Is this the response to $15.00 an hour minimum wage and mandatory medical benefits for employees? Maybe one sign of a coming trend. Unfortunately, this comes from a company I love the most, for what I believed to be supportive of values I hold near and dear.

South Seattle Emerald

by Kelsey Hamlin

(Updated 7/14/16 12:21am)

REI is known as a place of good-heartedness and quality, so it might come as a shock to hear that many of its employees are either on food stamps, working multiple jobs, or both.

When it comes down to it, REI may have bucked their principles as a co-op for a large corporate trend: Expansion at the expense of its workers — the co-op itself is creating a $2.3 billion campus in Bellevue, according the Puget Sound Business Journal. This came to light at a public forum for REI workplace rights yesterday evening, hosted by Seattle City Councilmember Kshama Sawant. In an email to the Emerald, a representative for REI  said the company has not disclosed how much the campus will cost, but that the amount will not be in the billions.

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The Roberts-Stabenow Dark Act – an effort to hide clarity in food labeling

July 1st has come and gone, and the specifics of this date are extremely important for food labeling activists around the united states.  Specifically, this date has induced the first national Genetic Engineering Labeling Law in the United States.  This law is plan and simple, and it requires companies to put in plain English if the food product within the packaging has ingredients that use Genetic Engineering.   Much more can be read at Vermont’s Right to Know GMO site.

Like California laws regulating emissions and toxicity of fibers or chemicals that can cause cancer,  Vermont’s Label law is significant in a federal way.  The specific reason is that it fills gaps in regulations and laws that congress has not preempted or superseded.  However, on the heels of this victory – there is trouble brewing in the air.  This trouble is the “Roberts-Stabenow ‘Dark Act'”.  What is this act, why is congress so intent on making their own regulations and what could happen if they don’t make their own food labeling laws – are the 3 things I want to look at today.

To begin with, the Roberts-Stabenow act is a food labeling act attempted to be implemented by congress.  This would be the first labeling of Genetically Engineered foods at this level.  Currently there are no existing regulations on this type of food product at the national level.  There are roughly 50 state led efforts of varying degree.  The most successful of these is the Vermont law, which went into effect on July 1, 2016.  This law, simply put, requires all companies to put a simple statement if any of the ingredients are genetically engineered.

In the Federal system that we Americans live under, there are essentially 50 plus governments that create a standard of rules for the entire federal system.  This is because each state has sovereignty within it’s own borders.  Due to this sovereignty, there are existing situations where, either for the methods of prosecution or based on the will or need for safety of the people, individualized regulations have been created.  Such laws such as Cannabis regulation are an example of such sovereignty.  Truth in Food Labeling is another.  While states have rights to create their own regulations within their borders, these can not be in direct negation or conflict with the federal regulations.  States can for example, enhance requirements on air pollution locally that are stronger than say – EPA regulations.

This is especially true where Federal regulations have not set up regulations in their place.  When a state does come up with regulations that are more stringent or fill gaps that congress has not, it is possible for the states to step in and fill the role on a localized or even national level.    Have you ever seen on games shows like The Price is Right or Wheel of Fortune where they give away cars and the announcer says “this automobile meets or exceeds California Emissions Standards”?  As we can see in this New York State Government Website, California Emissions Standards are being adopted by multiple states around the nation as they were more stringent that those enacted by the federal government.  In order to sell their cars to the largest single US market, manufacturers had to meet the California Standards.  Instead of making separate autos for the rest of the states, these standards have become part of national automobile sales by default.

Why is this important?  According to the American Jurisprudence 2d – Constitutional Law ( available at most libraries by signing in through their web systems):

Continue reading

Pollution in American Samoa, a look at the Nu’uuli Mangroves

Recently I had the opportunity to sit in on a planning meeting between the Environmental Protection Agency of American Samoa, Department of Marine Wildlife and the American Samoa Power Authority.  This meeting was to discuss the implementation and roll-out of a new mitigation program that would include data collection to help assist in evaluating the types and sources of pollution on the coastlines of American Samoa.  Within 3 weeks, I found this article written in the local newspaper, the American Samoa News about a group of roughly 25 individuals who collected 160 bags of waste during a cleanup of the Pala Lagoon on the opposite side of the Nu’uuli Mangroves.

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A picturesque scene from the Nu’uuli mangroves.  Unfortunately, everything isn’t a beautiful as it seems.

With this in mind, I accepted an invite to take a short tour of a section of the Mangroves, a section that stretches out into the Lagoon and is one of the areas proposed to be mitigated by the EPA.  What we found was heartbreaking.

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A look inland shows large swaths of pollution across the mangroves and inland island.

As I toured the mangroves, I had a conversation with Dennis Ahoia, a local business owner and family member tied to one of the pieces of land designated as part of the Nu’uuli Mangroves.   This part of the island is uninhabited, yet the area is full of rubbish, and most of it is fairly new. After a short boat ride across the bay, Dennis lead me through the mangroves, most of which are completely undeveloped.  He showed me sections where decades ago, walls and foundations were buried from when families used to live here.

As he used his machete to clear a pathway he explained to me his families involvement in cleaning up a portion of the land.  His astonishment at the quantity of pollution was evident.  “Several years ago we were cleaning up a portion of this land, and a small fire spread across the mangroves, it burned for several days and while it was unfortunate, it burned all the trash.  So all of this, all of this is new.”

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Styrofoam food containers, single use beverage containers and other signs of human consumption are mixed with natural organic plant material at the  Mangroves shoreline.

What amazed me the most is that there are significant barriers at the waters edge that should in theory capture and limit the spread of rubbish in this area.  Large portions of debris can be found up to 50 feet inland from the shoreline.  According to Ahoia, much of this pollution comes directly from the Village of Nu’uuli and the multiple streams that discharge into the bay. His disheartened amazement at the quantities of pollution is evident throughout our entire walk.  “Where does all this come from?”, he asks shaking his head.  “People don’t take care of their garbage and it ends up here.”  It appears that this debris then floats with the currents until it comes to the shoreline where wind and varying tides carry it inland.

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Nu’uuli Mangroves – 10 -30 feet inland, you can see the waterline

Managing this pollution is a multi step process that begins with personal responsibility.  Putting trash in its place and not littering are the first solutions to preventing this type of pollution to occur.  Secondary measures are to avoid purchasing items that are common pollutants like Styrofoam take out containers.  Requesting your local business purchase environmentally responsible packaging and traveling with personal beverage containers are additional measures to preventing the problem.

Additionally,  active mitigation – or cleaning up these type of areas is also important.  Forming a group of friends and family members, faith based community, or other group that gathers regularly is a great way to make an impact on pollution in your local area.  By taking people out to clean up existing trash, we spread awareness and educate people about the impact litter makes.  This blog on tips to running a successful community cleanup can be a great place to start you on starting your own cleanup group.   If you are interested in helping clean up American Samoa please contact the EPA  by email :info@epa.as.gov  or call them directly at 684.633.2304

 

Man ignites Molotov cocktails against a Monsanto factory, in support of Puerto Rico’s independence

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There are some things in this world you will not hear about over mainstream media. The fight against world domination by Corporations, including the takeover of the food supply by use of Genetic Engineering is one of them. Notice how this incident is being taken over by the FBI and not local police?

WAR AGAINST ALL PUERTO RICANS

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A 36-year old man has attacked a Monsanto subsidiary in Salinas, PR with Molotov cocktails.

He carried a hand-lettered bed sheet, which read: “Rise up, Boricua. The moment to defend our country has arrived. Viva P.R. Libre.” Here is a video report…

http://www.telemundopr.com/noticias/Investigan-ataque-con-bombas-caseras-en-Salinas_TLMD—Puerto-Rico-383524071.html

The Monsanto subsidiary is named Dupont Pioneer. The Molotov assailant, Noel D. Cruz Torres, was arrested by police and FBI agents on Saturday, June 18, 2016.


The FBI, not the local police, assumed jurisdiction over the investigation.

http://www.elnuevodia.com/noticias/seguridad/nota/hombreincendiaempresaensalinasconbombascaseras-2212024/

http://elvocero.com/tag/gobierno-de-estados-unidos/

http://www.primerahora.com/noticias/policia-tribunales/nota/hombrelanzacoctelesdemolotovaempresaensalinas-1159873/

MANY POSSIBLE CAUSES

On the island, in the press, and over the internet, many potential causes for the Molotov attack are already being discussed.

Most frequently mentioned are the economic crisis in Puerto Rico, and the PROMESA bill which may install a Washington-based Financial Control Board over the entire island.

Both major candidates for governor in Puerto Rico oppose the PROMESA bill, and said they’ll work to…

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Dropping Some Truth

I feel the need to drop a little truth on y’all. So buckle up…I’m about to be politically incorrect. We don’t need to take America back. No one stole it. It’s right he…

Source: Dropping Some Truth

Pressers note:
This amazing blog has spread in popularity so much that it became a Huff Post article.  As a blogger I appreciate the idea of spreading amazing blogs on the WordPress Forum because many bloggers wake up and check their stats on a daily basis to see how far their message or rants are going, and where people are in this world that read them.  I admit that I am one of those people.  Because of that, and the fact that this blog post rocks, I felt the need to ‘press’ it.  Hope you enjoy!

How to make Coco Samoa – fresh hot chocolate from tree to cup

There are many wonderful things to be learned when you live on this planet.  As a farm to table person, cooking and preparing fresh foods and beverages is one of them.  Today we are going to look at a drink common to the Samoan Islands, Coco Samoa.  In this easy 7 step process you will learn how to make this delicious beverage.

First you need some coca fruit.  Ripe fruit is red or orange in color.  These are picked from a tree.  The part of the fruit we will be using are the seeds.

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Fresh and ripe Coco fruit, split open to access the seeds.

2) After scooping the seeds out of the fruit you can enjoy the milky coating of the seeds by sucking on them and then spitting the seeds out into a bowl.  This is the traditional way of preparing them.  This is a tasty step, but it is optional.

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Separate the seeds from the fruit.

3) After you have separated your seeds from the fruit and any internal membrane.  You may rinse them.  This step is also optional and most likely only used if you have sucked on the seeds themselves.  This is not a traditional step in the process.

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Clean off the stems, rinsing is optional

4) Place your seeds on a baking tray or in a pan for toasting.  We use a gas flame and a pan to brown them.  Seeds are ready when the hulls have turned solid.  For a bolder, more coffee like flavor, you can burn the husks.  This step will require your pan to be cleaned so make sure you use an old pan that you don’t mind boiling off for cleaning.  Teflon or other similar surface is not recommended.

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Roast seeds until the skins are hardened and blackened.

5) After seeds are roasted to a hard outside coat, let them cool for several minutes and then husk the shells, separating the beans.  These beans should be a nice dark brown color.  Beans that have been blackened will have a more robust, coffee like flavor.

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Roasted beans will be separated from the husks.  Burnt beans like these will have a more coffee like flavor than chocolate.

6) The next step is to grind the beans.  Using a coffee grinder or other food processing machine makes quick and easy work of this step.

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Ground coco can be brewed in a variety of ways to make a tasty drink.

7) After your beans are sufficiently ground you can brew them in a variety of ways.  Adding them to boiling water, using a french press or simply putting the grounds in a cup and adding hot water.  Add sugar to taste and enjoy!

 

My continuing battle – MMJ Defense in American Samoa

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

TRIAL DIVISION

AMERICAN SAMOA GOVERNMENT,

Plaintiff,

vs.

BRIAN BENJAMIN LOMA,

Defendant

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).

Conclusion

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.

Respectfully submitted,

Dated: _____________ 2016 ____________________________

Mark Frederick Ude

Attorney for the Defendant

 

Diabetes and High Blood Pressure from drinking bottled water?

Diabetes

Diabetes

Plastic pollution is a big deal.  Our oceans, green spaces and city streets are full of it.  Beaches around the world find plastics upon their shore, including ones where no humans live.  There are hundreds, if not thousands of species who are directly impacted by plastic in their diets on a daily basis.  Ironically, humans are one of those species.

If you are like most people you have heard of  bisphenol A  most commonly called BPA.   .  Many people know it’s bad but they don’t understand exactly how and they make efforts to shop for plastics that are BPA free.  That’s a good thing, but not all plastics are labeled effectively and BPA isn’t just found in plastic.  It’s also found in the lining of Aluminum cans and many major water supplies throughout the United States.

Fighting effective labeling of products is something corporations have been doing for decades.  One primary example of this is the cigarette industry.  While there has been a change over the last 100 years from Doctors and Actors actively supporting this “healthy habit” to education and understanding of the toxicity of manufactured nicotine to labels stating that cigarettes can cause cancer, birth deformities and more.

cigarettes are good

This is no different in today’s manufacturing industries.  According to the International Bottled Water Association, a conglomerate of corporations who profit from the privatization of water; BPA is a safe chemical for adults to consume.  They even provide links to Food and Drug Administration (FDA) papers and website while painting a rosy picture of the chemical, which has been regulated out of packaging and uses for infants while being allowed in the adult human supply chain.

Why is this an issue, consuming BPA?  According to a report in Reuters, researchers, “using government health data, they found that the 25 percent of people with the highest levels of bisphenol A in their bodies were more than twice as likely to have heart disease and, or diabetes compared to the 25 percent of with the lowest levels.”  One study that links it to diabetes also indicates; “People ingest BPA that leaches from containers into foods and drinks. Studies in the United States showed that BPA appeared in the blood and urine of 95% of people tested.”

In a 2016 study, researchers found,”The present study showed that BPA could lead to chromosomal aberrations in both ER-dependent and independent pathways at some concentrations or in cell types yet not reported. Also, BPA could probably be considered as a facilitator for some predisposed cells to be cancerous by raising the chromosome instability levels. Finally, estrogen receptor seems to have a different role in cytotoxicity and genotoxicity effects” http://www.ijmcmed.org/browse.php?a_id=335&slc_lang=en&sid=1&ftxt=1

Plastics have a history of being this great invention that has turned out to have many negative effects.  Pollution litters our planet and we now know it pollutes our body.  What is can be found as astonishing is that it takes very little plastic in your life to be put at risk for health issues.  One of the major carriers of “sick plastic” is water and soda bottles.  It’s a hot day and you want a cold beverage, so you stop in to a convenience store and grab a plastic bottle of water or some carbonated beverage.  After a few swigs and a few miles down the road, you head into a business for work, shopping or other reason.  But its a sunny day and that beverage you purchased in warming up, and so is the plastic that it comes in.  Maybe you drink some more when you get back in your car, maybe you put it in the fridge and drink it when it gets cold again – either way, you could be consuming toxic chemicals that have leached out of the bottle and into your drink.  No harm in that right?  Wrong.

Researchers indicate that, “Rate of growth and sexual maturation, hormone levels in blood, reproductive organ function, fertility, immune function, enzyme activity, brain structure, brain chemistry, and behavior are all affected by exposure to low doses of BPA. Many of these effects are due to exposure during early development (gestation and/or lactation), but effects due to postweaning-through-adult exposure have also been reported.” http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1280330/

This means that drinking plastic beverages can increase the age of puberty, impact the function of your brain, impact one’s fertility and more.  While these factors are scary, many people would believe that the solution is to avoid drinking these beverages after they have become warm.  While this is a nice idea, the truth is that many of these chemical impacts can occur to the beverage before we purchase them. Most of the shipping containers and semis hauling these manufactured goods from the factory to local distributors do not use cooling units, so the risk of exposure begins at the initial transport to market.

The same study also indicates one unfortunate fact – the government and businesses that use BPA don’t research it’s impacts.  From the same medical report we see this chart showing the lack of studies by corporations and government entities on the impacts of BPA.

Government /Corporate Studies on BPA

Biased outcome due to source of funding in low-dose in vivo BPA research as of December 2004.

All studies


CD-SD rat studies


All studies except CD-SD rats


Source of funding Harm No harm Harm No harm Harm No harm
Government 94 (90.4) 10 (9.6) 0 (0%) 6 (100) 94 (96) 4 (4)
Chemical corporations 0 (0) 11 (100) 0 (0%) 3 (100) 0 (0) 8 (100)

Values shown are no. (%).  (http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1280330/)  To back up this stance, one simply needs to look at the Coca Cola FAQ page.

What’s the solution?  There are two basic solutions to avoiding BPA in your life.  Avoid single use plastics like water and soda bottles.  In addition to protecting yourself, you will have a positive impact on the world around you.  To travel with beverages on a regular basis, purchase a Stainless Steele insulated beverage container.  Insulated containers last a lifetime and help keep your beverages cold for long periods of time.  This will eliminate any concerns about being forced to warm beverages on a hot day.  Also, you can take your insulated container and purchase fountain soda from many chain and convenience stores.

While direct links establishing the permanence of impacts from BPA in our bodies are needed, it’s clear that corporations will not notify us the general public when they provide chemicals in our environment that have negative effects on the human body.  While Diabetes and Heart Disease are just the tip of the iceberg in the potential for permanent damage to our bodies, issues like breast cancer and advanced puberty onset are known.  For these reasons alone it’s best to eliminate single use plastic water bottles from your diet, but not fresh clean water.   For more information on types of plastics and the ways they pollute our body, check out page 2 of this printable PDF from the Ecology Center in Berkley, CA.

Sources:

  1. Aghajanpour-Mir S M, Zabihi E, Keyhani E, Akhavan-Niaki H, Bagherizadeh I, Biglari S et al . The Genotoxic and Cytotoxic Effects of Bisphenol-A (BPA) in MCF-7 Cell Line and Amniocytes. Int J Mol Cell Med. 2016; 5 (1) :19-29
    URL http://www.ijmcmed.org/article-1-335-en.html
  2. Vom Saal, Frederick S., and Claude Hughes. “An Extensive New Literature Concerning Low-Dose Effects of Bisphenol A Shows the Need for a New Risk Assessment.” Environmental Health Perspectives 113.8 (2005): 926–933. PMC. Web. 13 June 2016
    http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1280330/
  3. Washam, Cynthia. “Exploring the Roots of Diabetes: Bisphenol A May Promote Insulin Resistance.” Environmental Health Perspectives 114.1 (2006): A48–A49. Print.http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1332699/
  4. http://www.coca-colacompany.com/contact-us/faqs
  5. http://www.reuters.com/article/us-chemical-heart-idUSLF18683220080916
  6. http://www.bottledwater.org/health/container-safety/what-is-bpa
  7. http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm064437.htm#regulations
  8. http://www.bottledwater.org/health/container-safety/what-is-bpa
  9. http://ecologycenter.org/wp-content/uploads/2012/05/eliminate-plastic.pdf