5ASR3d81

AMERICAN

SAMOA GOVERNMENT, Plaintiff

 

v.

 

FOGAVA`A

FONOTI aka FOGAVA`A ENOKA, Defendant.

 

High

Court of American Samoa

Trial

Division

 

CR

No. 99-00

 

April

23, 2001

 

 

[1] Article 36(1)(b)

of the Vienna Convention requires that foreign nationals arrested or otherwise

detained be informed that they have right to notify the consular post of their

country that they have been detained and that such communication be made

without delay. 

 

[2] The

Supremacy Clause of the U.S. Constitution sometimes requires that courts

exclude evidence where such is explicitly commanded by a treaty or an executive

agreement.

 

[3] The

admissibility of evidence in an extradition proceeding is determined by the

applicable extradition treaty.

 

[4] Because the

Vienna Convention is a ratified treaty, its provisions must be regarded as

supreme.

 

[5] There may

exist remedies where the consular notification requirement of the Vienna

Convention has been violated, but exclusion of evidence is not one of them.

 

[6] Violation

of the Vienna Convention consular notification requirement does not require

suppression of subsequently-obtained evidence in a criminal proceeding against

a foreign national.

 

[7] Border

searches are subject to a significantly less demanding standard than that

required for searches within the interior of the country. 

 

[8] A.S.C.A. §

27.1002(a), the statutory provision that authorizes border searches by American

Samoa customs officials, is constitutional under Article I, Section 5 of the

Revised Constitution of American Samoa and the Fourth Amendment to the U.S

Constitution. 

 

[9]

Foreign national had no privacy interest with respect to waist pouch, worn in

plain view on the outside of his clothing, at border crossing.

 

[10]

The routine search of an article of luggage at a border crossing which requires

no patdown or other bodily incursion, does not invoke constitutional

protections. 

 

Before

KRUSE, Chief Justice, ATIULAGI, Associate Judge, and SAGAPOLUTELE, Associate

Judge.

 

Counsel: For Plaintiff, John W.

Cassell, Assistant Attorney General

 For Defendant, Bentley C. Adams III, Assistant

Public Defender

 

ORDER

DENYING DEFENDANT’S MOTION TO SUPPRESS

 

This

case concerns an October 12, 2000, charge against Fogava`a Fonoti, a.k.a. Enoka

(“Enoka”), a citizen of Samoa, by American Samoa Government (“ASG”), for

unlawful possession of a controlled substance under A.S.C.A. §§ 13.1022 and

13.1006, to which Enoka pled not guilty. Enoka filed a motion seeking to

suppress certain statements of his made August 3, 2000, as well as all evidence

seized on that date.

 

On

August 3, 2000, Enoka arrived in Pago Pago harbor on the ship MV Lady Naomi.  During a routine border search, he was found

by Customs Officer Pa`uulu Lagai (“Lagai”) to be carrying what was later

verified as 4.5 grams of marijuana.  When

Enoka first approached the inspection table, at about 7:35 a.m., he claimed

that he had nothing to declare and that everything with him was his own.  Lagai inspected Enoka’s carry-on bag and umu,

and then asked Enoka to hand over the black waist pouch he was wearing.  One of the pockets was locked, and Lagai

asked Enoka to open it.  Enoka took a key

out of his pants pocket and opened the compartment, revealing a yellow plastic

bag appearing to contain marijuana. 

Lagai seized the bag and its contents. 

He then turned Enoka and the items over to Captain Jeannette Thompson

(“Thompson”).  Thompson escorted Enoka to

the Customs Office and notified Detective Lima Togia of the Department of

Public Safety’s Vice and Narcotics unit (“Togia”).  Togia arrived and performed an on-site field

test on the substance that proved positive for tetrahydrocannabinols (“THC”),

the active ingredient of marijuana.  At

9:00 a.m., Togia escorted Enoka and the seized items to the Department of

Public Safety (“DPS”), where the suspected marijuana was weighed at 4.5 grams.

 

At

9:40 a.m., Togia advised Enoka of his constitutional rights in the Samoan

language.  In a written statement made

and signed thereafter, Enoka stated that he received the waist pouch by someone

who lived with his brother, and was told to take it with him to American Samoa

where someone would be waiting for it on the wharf wearing a light yellow or

beige-colored hat.  Enoka stated that he

did not know and was not suspicious of what the waist pouch contained, though

he was told not to open it.

 

Enoka

claims that Togia threatened to hit him on the head with a chair if he did not

make this statement.  ASG denies that

threats were made, but rather that Enoka waived his rights and voluntarily gave

a statement.  We note that Togia was

cordial enough so as to drive Enoka to his on-island aiga to deliver his

umu.  He then took Enoka out to

lunch.

 

On

August 7, Enoka visited Togia at the police station and attempted to exchange a

bag of Samoan cocoa for his travel documents. 

He also stated that he would work for Togia in return for Togia’s

helping him out on the case.  Enoka

returned a few minutes later with a person recognized by Togia.  Both persons asked for Enoka’s travel papers

but were told to leave.  Enoka returned

twenty minutes later and offered Togia forty dollars to help him out.  Togia warned Enoka of the serious

consequences of bribery, but gave back Enoka’s documents and allowed him to

depart.

 

I.  Motion to Suppress Statements

 

Enoka

moves to suppress all statements made to officials on August 3, 2000.  He argues that he was not given the opportunity

to apply for appointed counsel despite being subject to custodial

interrogation, that he was not advised of his Miranda rights, and that

he did not make a valid waiver of those rights. 

He furthermore argues that he was not informed of his Vienna Convention

right to communicate with a consular official prior to taking his

statement.  We consider these arguments

in turn.

A.

Miranda Rights

 

We

find as a matter of fact that Enoka received the Miranda warnings at DPS

at 9:40 a.m. in accordance with Miranda v. Arizona, 384 U.S. 436

(1966).  We further find that Enoka

validly waived these rights.  Enoka

claims that Togia threatened to hit him on the head with a chair if he did not

make the statement, but this claim is substantially discredited by contradictions

and inconsistencies in Enoka’s testimony, as well as his apparent lapses in

memory regarding major events such as whether or not he returned to Western

Samoa after his release from jail or whether or not he was rearrested one month

later.  We thus find that Enoka received

and waived his Miranda rights. 

His statement was voluntary and therefore admissible.

 

We

furthermore do not accept Enoka’s argument regarding his lack of opportunity to

apply for appointed counsel.  Included in

the Miranda rights given to Enoka was the right to the presence of an

attorney, and the fact that he would be appointed an attorney if he could not

afford one.  After hearing and waiving

these rights, Enoka was with Togia in custody for almost an entire working

day.  Enoka had plenty of opportunity to

apply for appointed counsel, both while he was under interrogation as well as

under the later, informal circumstances of visiting his family and having lunch

with Togia.

 

B.

Right to Communicate with Consular Official

 

[1]

Enoka claims that he was not notified of his right to communicate with consular

officials in violation of the Vienna Convention on Consular Relations (“Vienna

Convention”), April 24, 1963, 21 U.S.T. 77. 

Article 36(1)(b) of the Vienna Convention states:

 

(1)

 With a view to facilitating the exercise

of consular functions relating to nationals of the sending State: . . .

(b)

if he so requests, the competent authorities of the receiving State shall,

without delay, inform the consular post of the sending State if, within its

consular district, a national of that State is arrested or committed to prison

or to custody pending trial or is detained in any other manner.  Any communication addressed to the consular

post by the person arrested, in prison, custody or detention shall also be

forwarded by the said authorities without delay.  The said authorities shall inform the person

concerned without delay of his rights under this sub-paragraph[.]

 

[2-3]

The Supremacy Clause of the U.S. Constitution may sometimes require that courts

exclude evidence where this is explicitly required by a treaty or by executive

agreement.  U.S. Const. art. VI, Cl. 2; see also  22 Charles

Alan Wright et al., Federal Practice and Procedure § 1431 (2d ed.

1990).  For example, the applicable extradition

treaty determines the admissibility of evidence in an extradition

proceeding.  United States v.

Rauscher, 119 U.S. 407, 421-24 (1886); O’Brien v. Rozman, 554 F.2d

780, 782-83 (6th Cir. 1977); see also United States v. Flores,

538 F.2d 939, 945 (2d Cir. 1976).  Also,

federal courts have recognized a judicially enforceable right to request

consular notification in deportation proceedings based on INS regulations which

embodied the Vienna Convention provisions. United States v. Rangel-Gonzales,

617, F.2d 529, 532 (9th Cir. 1980); United States v Calderon-Medina, 591

F.2d 529, 531-32 (9th Cir. 1979); 8 C.F.R. §242.2(e).

 

[4]

Because the Vienna Convention is a ratified treaty, its provisions must be

regarded as “the supreme Law of the Land.” U.S.

Const. art. VI, cl. 2; Breard v. Greene, 523 U.S. 371, 376 (1998)

(per curiam).  The Vienna Convention,

however, makes no provision for the remedy of suppression of evidence where the

constitutional notification requirement has not been met.  Without such explicit provision, we are

unwilling to supply such a remedy, especially where doing so would contravene

the apparent intent expressed in the preamble to the Vienna Convention.  The preamble states that:

 

[T]he

purpose of such privileges and immunities is not to benefit individuals but to

ensure the efficient performance of functions by consular posts on behalf of

their respective States.[1]

 

[5-6]

Other remedies for violation of the consular notification requirement of the

Vienna Convention may be possible, but exclusion of evidence is not one.  This issue was explicitly treated by the

Ninth Circuit in United States v. Lombera-Camorlina, 206 F.3d 882 (9th

Cir. 2000) (en banc), and the Seventh Circuit in United States v. Lawal,

231 F.3d 1045 (7th Cir. 2000).  Both

cases involved foreign nationals invoking the Vienna Convention to suppress

statements that were obtained without their having been notified of a right to

contact their respective consuls.  Lombera-Camorlina,

206 F.3d at 883-84; Lawal, 231 F.3d at 1047.  Both courts ruled that violation of the

Vienna Convention consular notification requirement does not require

suppression of subsequently-obtained evidence in a criminal proceeding against

a foreign national.  Lombera-Camorlina,

206 F.3d 884; Lawal, 231 F.3d at 1048. 

Further, the fact that a foreign national was not informed of the right

to notification following arrest as required by the Vienna Convention does not

warrant exclusion of post-arrest statements made by such national in subsequent

prosecutions.  Lombera-Camorlina,

206 F.3d at 884-87; Lawal, 231 F.3d at 1048.  The circuits cite various reasons for these

rulings, including the lack of explicit intent to grant the remedy of

suppression of evidence in the treaty, the absence of such a policy with

respect to criminal procedure by any statutory body of the United States, as

well as practical problems and expense should the remedy be judicially

enforced.  Lombera-Camorlina, 206

F.3d 884-89; Lawal, 231 F.3d at 1048-49.

 

It

is true that, upon his detention and arrest, the Samoan national Enoka was not

informed of the Vienna Convention requirement of consular notification.  It is also true that he did not make any

request to speak with a Samoan consul, which, incidentally, does not exist in

American Samoa. Lagai and Togia’s apparent failure to warn Enoka of his right

to notify consul may constitute a violation of the Vienna Convention requirement.

However, such a failure is not accompanied by the remedy of exclusion of

evidence.  Adoption of the suppression

remedy may be inevitable given the increasing interdependency of diverse

markets prompting the need for the greater protection of human rights of

traveling nationals.  However, until

amendments grant international treaties explicit control of particular areas of

domestic law, and until such language is signed, ratified and affirmed by the

executive, legislatures and the courts, we are not inclined to assume the

authority to fashion new rights out of ideal but ineffectual language, nor to

override international law by imputing domestic practice.  Until the federal courts of the United States

interpret the U.S. Constitution to allow otherwise, we must conclude that the

Vienna Convention does not create a remedy of suppression of evidence due to

failure by government authorities to apprise a detained or arrested foreign

national of a right to notify consul.

 

II.  Motion to Suppress Evidence

 

Enoka

further claims that the evidence obtained from him while subject to an ASG

customs search in American Samoa was illegally seized as the fruit of a

warrantless search where he had a reasonable expectation of privacy, where

there was no probable cause or reasonable and articulable suspicion of criminal

activity, nor exigent circumstances to excuse the warrant requirement, nor

knowing and voluntary consent to the search. 

The issue before the court is thus whether the routine search of Enoka’s

waist pouch, conducted by customs officer Lagai, was rendered illegal due to

lack of a warrant, probable cause or other exigent circumstances.

 

[7]

Article I, § 5 of the Revised Constitution of American Samoa affords to all individuals

certain protections against unreasonable searches and seizures by the

government.  The Fourth Amendment of the

U.S Constitution also guarantees these protections.  However, the United States Supreme Court has

made it clear that a border search may be subject to a significantly less

demanding standard than that required for searches within the interior.  United States v. Montoya de Hernandez,

473 U.S. 531, 539-40 (1985). 

Specifically, the Supreme Court has ruled constitutional those federal

regulations granting customs authorities plenary authority to conduct routine

searches and seizures at the border without probable cause or a warrant.  Id.; United States v. Ramsey, 431 U.S.

606, 616-17 (1977); 19 U.S.C.A. §§ 1467, 1481, 1582; 19 C.F.R. § 162.6, 162.7

(1984).  Although entrants have a

reasonable expectation of privacy in border crossings, their privacy interest

is lessened.  Ramsey, 431 U.S. at

616-17.

 

[8]

For similar reasons, this Court has also held upheld as constitutional A.S.C.A.

§ 27.1002(a), the statutory provision that authorizes border searches.[2]  Am. Samoa Gov’t v. Pua`a, 31 A.S.R.2d 73, 78 (Trial Div. Nov.

22, 1996); Am. Samoa Gov’t v. Vagavao, 3 A.S.R.3d 72, 75 (Trial Div.

Feb. 4, 1999); see also Rev.

Const. of American Samoa art. I, § 3.

 

[9-10]

Enoka arrived in American Samoa from Samoa, which, however conjoined in common

heritage, language, and consanguinity, is lawfully regarded as an independent

and foreign state.  He was thus subject

to the statutorily authorized and mandated border search by the customs

official Lagai when the contraband was found on his person.  Furthermore, Enoka’s waist pouch was worn in

plain view on the outside of his clothing. 

The routine search of such an article of luggage, requiring no patdown

or other such bodily incursion, does not invoke constitutional

protections.  Ramsey, 431 U.S. at

616-17.  In short, Enoka had no privacy

interest with respect to the waist pouch he was wearing, at the border, when he

entered this territory.  We thus conclude

that the contraband seized, is admissible.

 

The

defendant’s motion to suppress is denied.

 

It

is so ordered.

 

**********