30ASR2d91

[30ASR2d98]

 

 

AMERICAN SAMOA GOVERNMENT, Plaintiff

 

v.

 

ABRAHAM SAMANA, aka APELU SAMANA, and ABIGAIL SAMANA, Defendant

 

High Court of American Samoa

Trial Division

 

CR No. 72-95

CR No. 73-95

 

July

15, 1996

 

[1]  A

defendant can challenge a facially valid warrant by showing that (1) the

affidavit contains information that the affiant knew was false or would have

known was false but for his reckless disregard for the truth; and that (2)

absent the false information, the affidavit would not support a showing of

probable cause to issue the warrant. 

 

[2]  Once the

defendant makes a preliminary showing that a warrant is invalid, the court must

hold a hearing at the defendant’s request.

 

[3]  If the

court concludes that a magistrate that issued a warrant was misled by

information in an affidavit that was intentionally or recklessly false, then

the evidence gained under the warrant must be suppressed.

 

[4]  When an

officer discovers that an affidavit supporting a warrant contains substantially

false matter after a warrant is issued but before the warrant is executed, the

correct remedy is suppression when the officer reasonably should have known

that the falsity casts doubt on the probable cause presented by the affidavit

but does nothing about it.

 

[5]  Unlike

the Fourth Amendment protection under the U.S. Constitution, whereby the

exclusionary rule exists to deter police misconduct rather than existing as a

personal constitutional right of the party aggrieved, the exclusionary rule may

very well be a personal constitutional right in this jurisdiction under the

American Samoa Constitution.  U.S. Const. Amend IV, Am. Sam.

Const. art I § 5.

 

[6]  When

material information tending to seriously undermine the probable cause upon

which a warrant was issued is received by the officer before the warrant is

executed, the officer must provide this new information to the judge and have

the warrant modified or have a new warrant issued.  If he does not, and if the new information

eliminates the basis for probable cause [30ASR2d99] supporting the warrant, the

warrant must be quashed and all evidence obtained under it suppressed.

 

[7]  For a

warrant to be valid, an officer must objectively and reasonably believe that

the judge’s determination of probable cause was correct. 

 

[8]  When an

officer proceeds to execute a warrant that the officer discovers is based on

erroneous information and the new information substantially undermines the

judge’s determination of probable cause, the evidence seized must be

suppressed.

 

[9]  The test in

a Franks inquiry is two-pronged: 

(1) did the officer knowingly or recklessly disregard the truth; and (2)

absent the false information, does the affidavit lack probable cause for the

issuing of the warrant?  If the answer to

either of these inquiries is negative, then the warrant remains valid and the

evidence will not be suppressed.

 

Before

RICHMOND, Associate Justice, TAUANU´U, Chief Associate

Judge, and BETHAM, Associate Judge.

 

Counsel:              For Plaintiff, Frederick J.

O’Brien, Assistant Attorney General

For Defendant Abraham Samana,

Reginald E. Gates

For Defendant Abigail Samana,

David P. Vargas

 

Order

Quashing Search Warrant and Suppressing Evidence:

 

 I. INTRODUCTION

 

On December 21, 1995, plaintiff American Samoa

Government ("ASG") filed an information charging defendant Abraham Samana ("Abraham") with unlawful production of

the controlled substance of marijuana and both defendants with unlawful

possession of the same controlled substance. 

 

Since then, we have held numerous proceedings on the

question of whether the search warrant under which ASG’s

primary evidence was seized was valid. 

The defendants have repeatedly challenged the veracity the affidavit by

Officer Paolo Leuma ("Leuma"),

which was the basis for the issuance of the search warrant.  Eventually, these proceedings led to the in

camera examination of ASG’s confidential

informant.  Then, on June 6, 1996, with all counsel present, a Franks hearing

was held in which Leuma was examined under oath. 

 

II.  FACTS

 

The facts are substantially as recited in our

earlier orders.  See

American[30ASR2d100]  Samoa Gov’t

v. Samana, 30 A.S.R.2d 1 (Trial Div. 1996) (Order Denying

Motion for In Camera Hearing); American Samoa Gov’t

v. Samana, 30 A.S.R.2d 37 (Trial Div. 1996) (Order for In

Camera Hearing with Confidential Informant).  During these hearings it was revealed that

information in Leuma’s affidavit to secure a search

warrant was false.  In particular, Leuma’s affidavit stated that a confidential informant had

told Leuma that he, the informant, had purchased

marijuana from Abraham at the defendants’ residence on December 2, 1995.  However,

two witnesses testified at the hearing on May 2, 1995 that both defendants were

at a relative’s wedding at the precise time during which the sale allegedly

took place, resulting in the May 8 order. 

 

When questioned in the most recent hearing on June

6, Leuma affirmed that the informant had initially

told him that Abraham had sold him drugs at the defendants’ residence at the

time specified on December 2, 1995.  However, Leuma also

stated that after the warrant issued, but before it was executed, the informant

told Leuma that it was not Abraham who had sold him

the drugs, but the defendants’ daughter. 

The informant had never even met the defendants.  Leuma executed the

warrant, seizing evidence that is the basis of the current prosecution.

 

III.  DISCUSSION

 

[1-3]  The United States Supreme

Court has held that a defendant can challenge a facially valid warrant by

showing that (1) the affidavit contains information "that the affiant knew

was false or would have known was false but for his reckless disregard for the

truth," United States v. Stanert, 762

F.2d 775, 780 (9th Cir. 1985); and (2) that, absent the false information, the

affidavit would not support a showing of probable cause to issue the

warrant.  United States v. Leon, 468 U.S. 897, 923 (1984); Franks

v. Delaware, 438 U.S. 154 (1978).  Once the defendant makes a preliminary

showing, the court must hold a hearing at the defendant’s request.  Franks, 438 U.S. at 155-56.  At that hearing, if the court concludes that

the magistrate was misled by information in the affidavit that was

intentionally or recklessly false, then the evidence gained under the warrant

must be suppressed.  Leon, 468 U.S. at 923.

 

[4]  All of the Franks

cases we have read deal with the situation where the affiant knowingly or

recklessly disregarded the truth at the time of making the affidavit.  We have found no cases in which the officer

discovered that the affidavit contained substantially false matter after the

warrant was issued, but before the warrant was executed.  Where this is the case, however, and where

the officer reasonably should have known that the falsity casts doubt on the

probable cause presented by the affidavit but does nothing about it, then

suppression continues to be the correct remedy. [30ASR2d101]

 

[5]  The United States Supreme

Court has repeatedly said that the exclusionary rule is primarily meant as a

deterrent to the misconduct of police officers. 

See Leon, 468 U.S. at 694-97; United States v. Peltier, 422 U.S. 531, 539 (1975); Michigan v. Tucker, 417 U.S. 433, 447 (1974).  Under the U.S. Constitution, the exclusionary

rule operates as "a judicially created remedy designed to safeguard Fourth

Amendment rights generally by its deterrent effect, rather than a personal

constitutional right of the party aggrieved."  United States v. Calandra, 414 U.S. 338, 348 (1974).  In American Samoa, however, the exclusionary

rule is set forth in the Constitution, Am. Samoa Const. art I § 5, and we

have held that it has greater reach than the exclusionary rule applied by

courts under the Fourth Amendment.  See,

e.g., ASG v. Stephens, 29 A.S.R.2d 6 (Trial Div. 1996) (holding that there

is no "good faith" exception to the exclusionary rule); ASG v. Sefo, 21 A.S.R.2d 32, 36 (Trial Div. 1992) (holding

that police conduct is not a factor to be considered in suppressing a

confession following an illegal arrest); ASG v. Samana,

8 A.S.R.2d 1, 3 (Trial Div. 1988) (holding that the exclusionary rule applies

to probation-revocation proceedings).  It

may very well be correct to characterize the exclusionary rule as a personal

constitutional right in this jurisdiction.

 

However, in this case, we need not go that far.  Even if we were to look only at the deterrent

effects of the exclusionary rule,^[1]

the officer’s conduct in this case would require the application of that

rule.  In this case, Leuma

received information clearly indicating to him that an unexecuted warrant had

been issued upon false information.  Had

he received the information before making his affidavit, he would have been

required to provide the correct information in the affidavit.  Had he received the information after making

his affidavit but before the warrant issued, he would have been required to

provide the correct information to the judge before the warrant issued. 

 

[6]  We hold today that when

material information tending to seriously undermine the probable cause upon

which a warrant was issued is received by the officer before the warrant is

executed, the officer must provide this new information to the judge and have

the warrant modified or have a new warrant issued.  If he does not, and if the new information

eliminates the basis for probable cause supporting the warrant, the warrant

must be quashed and all evidence obtained under it suppressed.

 

In a way, the rule we announce today is a corollary

to the "good faith" rule under the Fourth Amendment.  See United States v. Leon, 468 U.S. 897 (1984).  Under that rule, which is not applicable in

American Samoa, see ASG v. Stephens, 29 A.S.R.2d 6 (Trial Div. 1996),

evidence will not be suppressed where an officer seizes it "in objectively

reasonable reliance on a subsequently invalidated search warrant," that

is, where a facially valid warrant is executed by the officer in "good

faith."  Leon, 468 U.S. at

698.  In the present case, however, the

officer’s actions are akin to executing a warrant in "bad

faith."  That is, after Leuma had sworn an affidavit and received a warrant, he received

information indicating that the core information in his affidavit was incorrect

and that the warrant was issued upon false information.  Still, he proceeded to execute the warrant.

 

[7-8]  In Harlow v. Fitzgerald,

457 U.S. 800 (1982), the Supreme Court reaffirmed that, in executing a warrant,

an officer must have an objectively reasonable basis for relying upon the

technical sufficiency of the warrant and the judge’s determination of probable

cause.^[2]  See also Leon, 468 U.S. at 698 &

n.23.  The same rule applies in American

Samoa.  The officer must objectively and

reasonably believe that the judge’s determination of probable cause was

correct.  Where an officer has gained information

showing that the judge’s determination of probable cause was erroneous, he

cannot reasonably believe the opposite. 

The original warrant is effectively invalid.  If the new information provides a new basis

for probable cause, the officer can return to the court with a new affidavit

and have the warrant modified or have a new warrant issued.  However, where the officer proceeds to

execute the original warrant instead of returning to the district court, the

evidence seized must be suppressed. 

 

[9]  Finally, we note that our

pronouncement today applies only to those situations where the new information

substantially undermines the judge’s determination of probable cause.  Thus, as in any Franks inquiry, the

test is two-pronged:  (1) did the officer

knowingly or recklessly disregard the truth–that is, after the warrant was issued,

did the officer fail to provide newly-acquired, material information to the

judge about the falsity of the earlier affidavit; and (2) absent the false

information, does the affidavit lack probable cause for the issuing of the

warrant?  If the answer to either of

these inquiries is negative, then the warrant remains valid and the evidence

will not be suppressed.

 

In the present case, Leuma

learned that the information contained in his earlier affidavit concerning the

drug sale to the confidential informant was false.  He did not notify the district court judge,

but instead executed the warrant. 

Striking the false information about the drug sale from the affidavit,

as we must under the second prong of the Franks inquiry, it is clear

that the affidavit does not provide probable cause to issue a warrant.  The information in the affidavit about the

drug sale to the confidential informant makes up the heart of the probable

cause to issue the warrant.  There is no

probable cause without it.  Had Leuma returned to the judge with the new information, it is

quite likely that a new showing of probable cause would have been made and that

a new warrant could have issued, leading to seizure of precisely the same

evidence now before the court.  However,

this is not what happened, and we will not create a valid warrant out of an

invalid one.

 

Therefore, the warrant must be quashed and the

evidence seized during its execution must be suppressed.

 

It is so ordered.

 

 

 

 

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