IN THE SUPERIOR COURT OF GUAM 2
3 THE PEOPLE OF GUAM, )
) CRIMINAL CASE NO. CM1084-11 4 vs. )
5 ) DECISION AND ORDER JEFFINS KEBEKOL, )
6 )
Defendant. )
7
8 INTRODUCTION
9 This matter came before the Honorable James L. Canto II on the Defendant's second 10 motion to reconsider, filed October 15, 2012. Oral arguments were heard on January 4, 2013.
II Assistant Attorney General James C. Collins, Esq. appeared on behalf of the Government and 12 Assistant Public Defender Suresh Sampath, Esq. represented the Defendant. Having considered 13 the parties' briefs, oral arguments, and the applicable law, the Court now issues the following 14 Decision and Order.
15 BACKGROUND
16 Defendant is charged with driving under the influence of alcohol, possession of an open 17 container and reckless driving based upon the following events. On October 22, 2011 at 10:45 18 p.m., Guam Police Officers E.G.D. Perez and Julian Laxamana observed Defendant's vehicle 19 make a wide right turn that almost hit a curb and swerved across lanes of traffic. (Testimony of 20 E.G.D. Perez, Record Log at 9:25, Jan. 4, 2012; Testimony of Julian Laxamana, Record Log at 21 9:48, Jan. 4, 2012.) The officers stopped Defendant's vehicle about one (1) minute later and 22 observed that Defendant had bloodshot, watery eyes and smelled of alcohol. !d. Defendant 23 affirmed that he was drinking and that a cold, opened can of beer in the vehicle was his. !d.
24 At 10:50 p.m. Defendant agreed to participate in Standardized Field Sobriety Tests. !d.
25 Defendant failed the tests and the police officers informed him at 11 :05 p.m. that he was under 26 an-est. !d. Defendant was thereafter placed in a police van where he executed a written waiver 27 of his rights under Jvfiranda v. Arizona, 384 U.S. 436 (1966), made statements and underwent 28 breath and blood testing. !d.
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On February 1, 2012, Defendant moved to suppress all evidence obtained from the
2 investigative detention because it lasted longer than fifteen (15) minutes in violation of 8 GCA 3 § 30.30. Defendant asserted that his initial detention was an unreasonable seizure and that all 4 evidence obtained during or as a result of the seizure must be suppressed. The Court denied 5 suppression on the grounds that probable cause to arrest appeared before fifteen minutes of 6 detention elapsed. (Decision and Order, Jun. 1, 2012.) On June 12, 2012, Defendant filed a 7 motion to reconsider because disputed facts were considered as undisputed. On reconsideration, 8 the Court denied suppression because the disputed facts did not change its probable cause 9 analysis. (Decision and Order, Oct. 2, 2012.) The matter was thereafter reassigned to Judge 10 James L. Canto II.
11 On October 15, 2012, Defendant filed a second motion to reconsider on the basis that 12 material facts remain in dispute. The Government agreed an evidentiary hearing is necessary
I3 pursuant to People v. Santos, 1999 Guam 1 ~~ 16-25 and further argued the Court's prior
14 probable cause analysis must be applied pursuant to the law of the case doctrine. 15 DISCUSSION
16 1. Reconsideration and the Law of the Case 17 The law of the case doctrine generally precludes a court from reconsidering an issue it
18 has already decided unless: 1) the first decision is clearly erroneous; 2) the law, evidence or 19 other circumstances have changed; or 3) manifest injustice would result. People v. Hualde, 20 1999 Guam 3 ~ 13. However, the trial court, "always has the power to reexamine, modifY,
21 vacate, correct and reverse its prior rulings and orders," and the, "[l]aw of the case does not ... 22 preclude the court from reconsidering an earlier ruling if the court feels that the ruling was
23 probably erroneous and more harm would be done by adhering to the earlier rule than from the 24 delay incident to a reconsideration and the possible change in the rule of law to be applied."
25 People v. Gutierrez, 2005 Guam ~ 40 n. 7 (quoting Chun v. Board of Trustees of Employees' 26 Retirement System of State of Hawaii, 992 P.2d 127, 136 (Hawai'i 2000)). Furthermore, "[a] 27 judge may reexamine his earlier ruling (or the ruling of a judge previously assigned to the case
28 ... ) if he has a conviction at once strong and reasonable that the earlier ruling was wrong, and if
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rescinding it would not cause undue ham1 to the party that had benefitted from it." ld. (quoting 2 Avitia v. Metro. Club ofChicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995)). 3 In this case, the Government asserts the Court cannot reexamine the suppression 4 analysis of the previously assigned judge. The Court does not agree. The law of the case 5 doctrine should not be applied here where new testimony is considered for the first time. Based 6 upon the discussion infra, the Court holds a strong and reasonable conviction that the earlier 7 analysis was incorrect. Furthermore, a reexamination of the suppression decision and a 8 rescinded order shall not cause undue harm before trial. Cf Avitia, 49 F.3d at 1227-1228 9 (prejudice may result without notice of jury instruction). For these reasons, the Court shall 10 grant reconsideration and reexamine the issues presented by Defendant's motion to suppress 11 under 8 GCA § 30.30. 12 2. The Stop and Frisk Act 13 The Fourth Amendment permits brief investigative detentions that are based upon a 14 reasonable suspicion of illegal conduct. People v. Johnson, 1997 Guam 9 ~ 4 (citing Teny v. 15 Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968)). This principle is codified in the entitled Stop and 16 Frisk Act at 8 GCA Chapter 30. See People v. Cundiff, 2006 Guam 12 ~ 40. 17
18 Title 8 GCA § 30.10 states: 19 Whenever a peace officer encounters any person under circumstances which reasonably indicate that such person has committed, is committing or is about to 20 commit a criminal offense, the peace officer may detain such person.
21 Title 8 GCA § 30.20 states:
22 Detention pursuant to § 30.10 shall be for the purpose of ascertaining the 23 identity of the person detained and the circumstances surrounding his presence abroad which lead the officer to believe that he had committed, was committing, 24 or was about to commit a criminal offense, but such person shall not be 25 compelled to answer any inquiry of the peace officer.
26 Title 8 GCA § 30.30 states: 27 No person shall be detained under the provisions of § 30.10 longer than is reasonably necessary to effect the purposes of that section, and in no event longer than fifteen (15) minutes. Such detention shall not extend beyond the place where it was first effected or the immediate vicinity thereof.
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3 Title 8 GCA § 30.40 states:
4 If at any time after the onset of the detention authorized by § 30.10, probable cause for arrest of the person shall appear, the person shall be arrested. If after 5 an inquiry into the circumstances which prompted the detention, no probable cause for the arrest of the person shall appear, he shall be released.
6
7 Thus under Guam law, a police officer having a reasonable suspicion regarding criminal 8 activity by a particular individual may detain that person to investigate said suspected criminal 9 activity. 8 GCA §§ 30.10 & 30.20. When this investigative detention reveals probable cause 10 for arrest, "the person shall be arrested." 8 GCA § 30.40. However, "in no event [shall a II person be detained] longer than fifteen ( 15) minutes," and the person "shall be released," if no 12 probable cause for arrest appears. 8 GCA §§ 30.30 and 30.40.
13 In this case, the parties dispute the application and effect of the 15 minute time limit for 14 investigative detentions. The Government argues that any appearance of probable cause to 15 arrest within 15 minutes removes the need to apply the time limitation. Alternatively, the 16 Government contends that any suppression applies only to evidence obtained after 15 minutes 17 and before arrest. Defendant asserts that if he is not arrested or released within 15 minutes 18 pursuant to the Stop and Frisk statutes, then all evidence from the investigative detention must 19 be suppressed unless it comes from an independent source.
20 3. Violation of the 15-Minute Time Limit 21 a. Meaning of the Stop and Frisk Act.
22 Title 8 GCA Chapter 30 and the IS-minute time limit are derived from former Penal 23 Code Sections 735 through 736.4. See 8 GCA § 30.10, COMMENT; Guam Pub. L. 10-99 (June 24 19, 1969). Former Sections 735 through 736.4 were enacted as original statutes and without 25 any statement of legislative findings or intent. P.L. 10-99. There is an absence of controlling 26 authority to interpret the 15 minute time limit. 1 Without clear legislative intent or authority to 2 the contrary, the Court shall interpret the Stop and Frisk statutes according to their plain 3 meaning. See Guam Resorts, Inc. v. G.C. Corporation, 2012 Guam 13 ~ 7 ("When the plain 4 reading of a statute is 'clear on its face' and yields to an unambiguous definition, we will not 5 look past that plain reading."); Castino v. G.C. Corp., 2010 Guam 3 ~ 29 ("A plain reading 6 construction is appropriate where the statute lays out specific requirements and indicates exactly 7 what is necessary for compliance without ambiguous tem1s."); People v. Lau, 2007 Guam 4 ~~ 8 11-14. 9 An examination of the plain language of the 15-minute time limit within the context of 8 10 GCA Chapter 30 does not reveal ambiguity or absurd and unworkable consequences. See 11 Sumitomo Canst., Co., Ltd. v. Government of Guam, 2001 Guam 23 ~ 17; People v. Flores, 12 2004 Guam 18 ~ 18. The Stop and Frisk Act states that a person shall be detained, "in no event 13 longer than fifteen (15) minutes." 8 GCA § 30.30. If probable cause to arrest appears, "at any 14 time after the onset of the detention ... the person shall be arrested." 8 GCA § 30.40. If probable 15 cause does not appear, "he shall be released." !d. This language clearly contemplates that any 16 investigative detention must end by arrest or release within 15 minutes. Even where probable 17 cause to arrest appears within 15 minutes of detention, the plain language of 8 GCA § 30.30 18 does not allow the detention to continue beyond 15 minutes. When a person is detained without 19 arrest for more than 15 minutes, although probable cause to arrest may appear, the Stop and 20 Frisk statutes are violated. 21
22 1 23 For example, Guam law does not explicitly discredit any detention beyond the time limit nor does it converse!
hold that the time limit is merely a guide for law enforcement. Compare Florida v. Royer, 460, U.S. 491, 500, 103 24 S.Ct. 1319, 1325 (1983) ("[A]n investigative detention must be temporary and last no longer than is necessary t effectuate the purpose of the stop."), and U.S. v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575 (1985) ("I 25 assessing whether a detention is too long in duration to be justified as an investigative stop, we consider i appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm o 26 dispel their suspicions quickly, during which time it was necessary to detain the defendant."), with U.S. v. Place, 46 U.S. 696, 709 n.IO, 103 S.Ct. 2637, 2646 (1983) ("We understand the desirability of providing law enforcemen 27 authorities with a clear rule to guide their conduct. Nevertheless, we question the wisdom of a rigid time limitation.
Such a limit would undermine the equally important need to allow authorities to graduate their responses to th 28 demands of any particular situation.").
To posit that probable cause arising before the expiration of 15 minutes somehow 2 negates the statute's time limit is to say that an officer may detain an individual indefinitely 3 without an arrest just because probable cause arose within the first 15 minutes. This would be 4 an illogical reading of the statute that subverts its entire purpose, and one which this Court 5 cannot reasonably adopt. The Guam Legislature has apparently narrowed the ability of any 6 officer to graduate an investigative detention according to the demands of a particular situation, 7 as the U.S. Supreme Court might otherwise afford in the absence of an explicit time limit. See, 8 e.g., US. v. Sharpe, 470 U.S. 675, 685-87, 105 S.Ct. 1568 (1985). Based upon the plain 9 meaning of the Stop and Frisk statutes, the Court holds that an investigative detention must 10 cease by arrest or release within 15 minutes of its initiation? II The Government argues that a defendant's voluntary consent to undergo a Standardized I2 Field Sobriety Test vitiates the effect of 8 GCA § 30.30, tolling the 15-minute clock. 3 However, I3 the plain language of the statute is inescapable. It states in pertinent part: "No person shall be I4 detained ... longer than is reasonably necessary to effect the purposes of [Section 30.1 0], and in I5 no event longer than fifteen (15) minutes. 8 GCA § 30.30 (emphasis added). This I6 unconditional language unequivocally imparts that no circumstance may serve as an exception I7 to the time limit, be it exigency or even an express waiver by the detainee. I8 b. Application to the Facts ofthis Case. I9 In order to apply this rule to the present case, the Court must further examine the 20 difference between an investigative detention and an arrest. Under Guam law, "a person has 2I been seized under the Fourth Amendment only if, in view of all the circumstances surrounding 22 the incident, a reasonable person would have believed that he was not free to leave." Cundiff, 23 2006 Guam 12 at~ 21 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 24
2 25 The Court recognizes this law's possibly impairing effect upon meaningful law enforcement investigatio technique; however, this Court is duty-bound to administer the law as the Legislature intended and may do no more.
26 The only alternative is for the Legislature to re-examine whether the statute indeed withstands an effectiv application to real-world circumstances within the reasonable balance between individual liberty interests and th 27 Government's law enforcement interests.
3 See generally, People v. Santos, 1999 Guam 1 IJIJ 33-37; People v. Chargualaf, 200 l Guam 1 IJIJ 14-15 1877 (1980)). An investigative detention under 8 GCA Chapter 30 is consistent with a Fourth 2 Amendment seizure. See e.g. Cundiff, 2006 Guam 12 at~ 40; Terry, 392 U.S. at 16 ("It must be 3 recognized that whenever a police officer accosts an individual and restrains his freedom to 4 walk away, he has 'seized' that person."). For this reason, an investigative detention occurs 5 when a reasonable person would believe he is not free to leave under the circumstances. 6 Guam law defines an arrest as, "an actual restraint of the person, or. .. submission to the 7 custody of the person making the arrest." 8 GCA § 20.10. An officer must announce the arrest 8 pursuant to 8 GCA § 20.25, but the declaration is not an absolute requirement for a lawful arrest 9 based upon probable cause. Cundiff, 2006 Guam 12 at ~~ 35-36 and 25-26 (quoting People v. 10 Maddox, 294 P.2d 6, 9 (Cal. 1956); and Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 II (1964) ). Any physical restraint that curtails movement constitutes an arrest. !d. at ~~ 19-20 12 (quoting Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889 (1968)). 4 Even without physical 13 restraint, a severely intrusive detention may constitute an arrest. !d. at ~~ 21-22 (quoting 14 Dunaway v. New York, 442 U.S. 200, 216, 99 S.Ct. 2248 (1979) (custodial interrogation is an 15 arrest and requires probable cause)). 16 In this case, Officers Perez and Laxamana stopped Defendant's vehicle at about 10:46 17 p.m. A traffic stop is, "unquestionably a seizure within the meaning of the Fourth 18 Amendment." People v. Rasauo, 2011 Guam 1 ~ 26 (citing Berkemer v. McCarty, 468 U.S. 19 420, 436-439 (1984)). See also People v. Chargualaf, 2001 Guam 1 ~ 17. Under the 20 circumstances of a traffic stop, Defendant was detained pursuant to 8 GCA Chapter 30 because 21 he could not reasonably believe that he was free to disregard the police and drive away. See 22 Mendenhall, 446 U.S. at 554 (no detention if person can disregard and walk away). At 11:05 23 p.m., the officers announced Defendant's arrest and physically restrained his movement by 24 placing him in a police van. The investigative detention lasted nineteen (19) minutes before it 25
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27 4 Cf People v. Farata, 2007 Guam 8 ~~ 44-45; People v. Santos, 2003 Guam 1 ~ 51 (police custody ultimate!
28 determined by use of physical restraint comparable to formal arrest).
ended with an arrest. For this reason, the investigative detention violated the 15-minute time 2 limit of the Stop and Frisk Act. 3 4. The Exclusionary Remedy 4 The Stop and Frisk Act does not provide an explicit remedy for the specific 5 circumstance where a person is detained by law enforcement for more than 15 minutes. See 8 6 GCA Chapter 30. However, an unreasonable investigative detention implicates the Fourth 7 Amendment under Guam law. See e.g. Cundiff, 2006 Guam 12 at 1 40; Chargualaf, 2001 8 Guam 1 at 1 20 ("[T]he Fourth Amendment is only at issue where the police detain or seize an 9 individual while posing investigative questions.") (citing Florida v. Royer, 460 U.S. 491, 497, IO 103 S.Ct. 1319, 1324 (1983)). When the Fourth Amendment is violated by an unlawful seizure II or investigative detention, evidence obtained during the detention must be suppressed pursuant 12 to the exclusionary rule. See e.g. Cundiff, 2006 Guam 12 at 1 51; Terry, 392 U.S. at 13-15. 13 Evidence that is obtained during or derived from an unlawful detention must be suppressed 14 pursuant to the fruit of the poisonous tree doctrine. Cundiff, 2006 Guam 12 at 141 (citing Wong 15 Sun v. United States, 371 U.S. 471 (1963); People v. Santos, 2003 Guam 1 1 64). 5 16 The Stop and Frisk Act's 15 minute time limit constitutes a greater restriction upon 17 police activity than the Fourth Amendment. See discussion supra and Place, 462 U.S. at 709 18 ("we decline to adopt any outside time limitation for a permissible Terry stop"). For this 19 reason, the Constitution may not protect against a violation of 8 GCA § 30.30 although it 20 implicates the Fourth Amendment. See Virginia v. Moore, 553 U.S. 164, 128 S.Ct. 1598 (2008) 21 (evidence is not excluded under the Fourth Amendment for the violation of a state law that 22 restricts police intrusion more narrowly than the Constitution). However, the Organic Act of 23 Guam incorporates language identical to the Fourth Amendment and the Court is persuaded by 24
25 5 26 See also Nix v. Williams, 467 U.S. 431, 442-443, 104 S.Ct. 2501, 2508 (1984) ("The core rationale consistent!
advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduc 27 has been that this admittedly drastic and socially costly course is needed to deter police from violations o constitutional and statutory protections. This Court has accepted the argument that the way to ensure sue 28 protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of lettin
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aforementioned federal cases that apply the exclusionary rule in order to remedy unreasonable 2 searches and seizures. Compare 48 U.S.C. § 1421b(c) with U.S. Const. amend. IV (identical 3 language). See also People v. Roten, 2012 Guam 3 ~ 16; Macris v. Guam Memorial Hasp. 4 Authority, 2008 Guam 6 ~ 25 (federal cases interpreting identical language are persuasive 5 authority). Furthermore, the Guam Legislature clearly considered exclusion to be an 6 appropriate remedy for a violation of the Stop and Frisk Act. See 8 GCA § 30.60 (evidence 7 obtained from a frisk is not admissible when a detention lasts longer than 15 minutes). Cf 8 Moore 553 U.S. at 167 (Virginia does not require suppression of evidence obtained in violation 9 of state law). 10 On these grounds, the Court shall apply the ordinary exclusionary rule and fruit of the 11 poisonous tree doctrine to the Stop and Frisk statutes and suppress all evidence obtained or 12 derived from an unlawful detention that exceeds the time limit; specifically meaning any and all 13 evidence obtained during the entire detention, and not just that evidence obtained after the IS- 14 minute time limit has elapsed. 15 In order to suppress evidence under the fruit of the poisonous tree doctrine, the Court 16 must determine, "whether the challenged evidence was come at by exploitation of the initial 17 illegality or instead by means sufficiently distinguishable to be purged of the primary taint." 18 Cundiff, 2006 Guam 12 at~~ 41; Santos, 2003 Guam 1 at~ 65 (quoting Segura v. United States, 19 468 U.S. 796, 805-805, 104 S.Ct. 3380, 3385 (1984)). See also Segura, 468 U.S. at 815 20 ("[E]vidence will not be excluded as 'fruit' unless the illegality is at least the 'but for' cause of 21 the discovery of the evidence."). The coercive effect of an illegal seizure may attenuate and 22 dissipate with the passage of time. Santos, 2003 Guam 1 at~ 65 (quoting Oregon v. Elstad, 470 23 U.S. 298,311-312, 105 S.Ct 1285, 1294 (1985)). 24 In this case, the unlawful Stop and Frisk Act detention ended when Defendant was 25 arrested at 11 :05 p.m. and placed in a police van. Defendant subsequently waived his Miranda 26
27 persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a bette 28 position than it would have been in if no illegality had transpired.").
rights, made statements to the police and performed breath and blood tests. The short passage 2 of time between the illegal detention and the evidence collected in the police van by itself does 3 not likely dissipate and purge the taint of the illegality. See Brown v. Illinois, 422 U.S. 590, 4 604-605, 95 S.Ct. 2254, 2262 (1975) (statement separated from illegal arrest by less than two 5 hours does not purge the taint of illegal arrest). Furthermore, an implied consent warning and 6 Miranda warning alone do not purge the taint of the illegal detention. !d. at 601-603. In order 7 to determine whether Defendant's statements, breath and blood tests are purged of the taint of 8 the illegal detention, the Court should consider the totality of the circumstances, including: 1) 9 the temporal proximity between the illegal detention and the evidence; 2) the presence of 10 intervening circumstances; and 3) particularly, the purpose and flagrance of the illegal conduct. II Chargualaj; 2001 Guam 1 at~ 53 (citing Brown, 422 U.S. at 603-604). 12 As discussed above, the close temporal proximity between the illegal detention and the 13 evidence collected in the police van does not purge the taint of illegality. Furthermore, there are 14 no intervening circumstances to purge the taint of the illegal detention. See Johnson v. 15 Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 1626 (1972) (lineup identification is purged of 16 illegal arrest when conducted with counsel and after magistrate hearing to advise rights and 17 commit under bail). However, it is particularly important here that the illegal detention did not 18 have an illegal purpose or constitute flagrant illegal conduct. During the period of unlawful 19 detention the Officers observed indicators of Defendant's intoxication, questioned Defendant 20 about intoxication, conducted standardized field sobriety tests, and arrested Defendant when he 21 failed the tests. These actions are reasonably tailored to quickly confirm or dispel the suspicion 22 that Defendant drove under the influence of alcohol. See Sharpe, 470 U.S. at 686. On this 23 basis, the 19 minute detention was not conducted for an illegal purpose nor did it constitute 24 flagrant illegal conduct and the evidence obtained under custody is purged of the taint of the 25 illegal detention. 6 26
27 6 One example of an illegal purpose or flagrant illegal conduct under the Stop and Frisk statutes is a detention an 28 investigation that exceeds the scope of the officer's reasonable suspicions, and which reveals evidence of wholly
For all of these reasons, the police obtained Defendant's custodial statements, breath test 2 and blood test by means sufficiently distinguishable to be purged of the primary taint of the 3 illegal detention, and those particular statements and test evidence shall not be excluded under 4 the fruit of the poisonous tree doctrine. See Cundiff, 2006 Guam 12 at , 41. 5 Ill 6 CONCLUSION 7 Based upon the foregoing, Defendant's motion to suppress is hereby GRANTED and all s evidence obtained from the onset of the detention until his arrest and custodial waivers shall not
9 be admissible against Defendant. 10
11 SO ORDERED this ~5) day of March, 2013. 12
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15 ( HON. JAMES L. CANTO II Judge, Superior Court of Guam 16
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27 unrelated conduct after more than 15 minutes, only because the detention continued indefinitely. See general!;
Dunaway, 442 U.S. at 218-219 (confession inadmissible where defendant was seized without probable cause in th 28 hope that something might turn up).