2019JUfl25 P?f f2 5
6 IN THE SUPERIOR COURT OF GUAM 7 THE PEOPLE OF GUAM, ) Criminal Case No. CM0446-18 8 ) ) 9 Plaintiff, ) ) v. ) DECISION & ORDER ) 11 ) EDWINA K. RESELAP, ) 12 DOB:05/14/1990 ) 13 Defendant.
INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena, III on March 27, 2019 for 16 17 a hearing on a submission by Defendant Edwina Reselap’s (“Defendant”) of a Motion to
Dismiss. Defendant is represented by Assistant Public Defender Rocky Kingree, and Assistant
Attorney General Sean Brown appeared on behalf of the People of Guam. After considering the
facts of the case, and the applicable law, the Court now issues this Decision and Order granting 21
22 the Defendant’s Motion to Dismiss with prejudice.
23 BACKGROUND 24 In the morning of August 25, 2018 police arrived at the scene of a crash that had 25 occurred on Route 4 by the Hagatna Library. (Complaint at 2, Sep. 27, 2018). The Defendant,
the vehicle’s operator, was subsequently arrested after she admitted to drinking alcohol before
28 operating the vehicle and was still displaying signs of intoxication. Id. At some point before the Decision & Order CM0446-1$, People v. Reselap
filing of the Complaint, the Defendant was released from custody. (Affidavit of Service, Oct.
2 12, 2019). A Complaint was filled the following month charging the Defendant with Driving
3 While Impaired (as a Misdemeanor). Id. at 1. An arraignment hearing was held on November
07, 2018, but was continued to December 5 because the Defendant did not appear at the hearing. 5 (Minute Entry, Nov. 07, 2018). The Defendant appeared at the second arraignment hearing 6 where the Public Defenders Service Corporation was appointed to represent her. (Minute Entry,
8 Dec. 05, 2018). On February 21, 2019 the Defendant filed a Motion to Dismiss. (Notice of
‘ Mot., Feb. 21, 2019). The People did not file a response to the motion and did not oppose the 10 dismissal at the hearing. (Minute Entry, Mar. 27, 2019). The Court subsequently took the
matter under advisement. Id. 12
13 DISCUSSION
14 The Defendant asks this Court to dismiss her case with prejudice for failure to bring her 15 before a judge for a probable cause hearing her within forty-eight hours as required by 8 GCA § 16 45.10(a) and (c). (Mot. Dismiss at 3-4, Feb. 21, 2019). The People do not oppose dismissal of 17 the Complaint, but request that dismissal be made without prejudice. (Court Recording at
19 3:44:30, Mar. 27, 2019). The statute reads in relevant part:
20 § 45.10. Duty to Delivery Arrestee to Judge, or to Peace Officer. - (a) An officer making an arrest under a warrant or any person making an arrest 22 without a warrant shall take the arrested person without unnecessary deLay before a judge of the Superior Court. 23 (c) The person arrested shall in all cases be taken before the judge within forty- - eight (48) hours after the arrest, except that when the forty-eight (48) hour period 25 expires, it is the burden of the government to demonstrate that a bona fide emergency or an extraordinary circumstance existed. 26
27 8 GCA § 45.10(a) and (c). The only exception to the statute, 8 GCA §S 25.10-30, authorizes the
28 arresting officer to release a defendant so long as the officer provides the defendant with a
Page 2 of 6 Decision & Order CM0446-18, People v. Reselap
Notice to Appear containing the date which the defendant is to appear in Court, and forwards
2 the Notice to the prosecutor. $ GCA § 25.10-30. The prosecutor has the burden of proving
3 that the delay in bringing the defendant before a judge was reasonable or that some
extraordinary or emergency circumstance existed to excuse the delay. $ GCA § 45.10 (a) and 5 (c); People v. Camacho, 1999 Guam 27 ¶ 28 (although the statute sets a maximum time limit, 6 the basic test always whether the delay was unreasonable).
8 The Defendant was arrested on August 25, 201$. (Complaint at 2). No Notice to Appear
was issued. The Defendant asserts that she was held in custody over the forty-eight hour period. 10 (Court Recording at 3:43:30-44:00). The record reflects that the Defendant was not served with
a summons to appear before the Court until October 12, 2018—almost two months after her 12
13 initial arrest. (Summons, Oct. 12, 2018). Based on summons, it appears that the Defendant was
14 released at some point between August 25 and October 12. Id. However, the prosecutor has not IS provided any evidence to refute that the Defendant was held in custody for more than forty- 16 eight hours after arrest; or any explanation as to why the Defendant did not have a scheduled 17 appearance before a judge until November 07. Instead, it appears to the Court that the
19 prosecutor agrees that the Defendant’s rights were violated. (See Court Recording at 3:44:30).
20 Accordingly, the Court finds that there is no good cause as to why the prosecutor failed to
- timely bring the Defendant before a judge in violation of 8 GCA § 45. 10. $ GCA § 45. 10(a)
and (c). 23 The Fourth Amendment of the United States Constitution requires a “fair and reliable 24
25 determination of probable cause as a condition for any significant pretrial restraint of liberty and
26 this determination must be made by a judicial officer either before or promptly after arrest.” 27 Gerstein v. Pugh, 420 U.S. 103, 124-25, 95 S.Ct. 554 (1975); 4$ U.S.C. § 142 lb(c) (codifying 28
Page 3 of 6 Decision & Order CM0446-18, People v. Reselap
the language of the Fourth Amendment into the Organic Act of Guam). Title $ Section 45.10
2 represents a codification of this requirement on Guam. People v. Petros, 1986 WL 68513 at *1
3 (D. Guam App. Div. 1986). The language of Guam’s statute is based on Federal Rule of
Criminal Procedure 5(a). 8 GCA §45.10 at Note; see also People v. Camacho, 1999 Guam 27 ¶
28 (citing Fed. R. Crim. Pro 5(a) in relation to 8 GCA § 45.10). 6
7 Generally, the remedy for violations of Rule 5(a) is suppression of statements made by a
defendant during the period of untimely delay between the defendant’s arrest and his or her first
appearance. United States v. Cooke, 853 F.3d 464, 471 (8th Cir. 2017); See also United States 10 v. Melendez, 55 F. Supp. 2d 104, 107-08 (D. Puerto Rico 1999) (collecting cases). This Court 11 has previously noted, however, that dismissal is a remedy for violations of Rule 5(a) in limited 12
13 circumstances. People v. Anastacio, Superior Court Case No. CFO15O-06 (Dec. & Order at 4,
14 Jan 2, 2007) (citing Melendez, 55 F. Supp. 2d 104 (D. Puerto Rico 1999) and United States v.
Osunde, 638 F. Supp. 171 (N.D. Cal. 1986)). In determining whether dismissal is warranted, 16 courts consider the following factors: 1) whether there is any statement the court can suppress as ‘7 a remedy for the violation; 2) whether the defendant was incarcerated solely as a result of the 18
19 violation and was unlikely to be incarcerated otherwise; and 3) whether the delay in bringing the
20 defendant before the magistrate was egregious. Melendez, 55 F. Supp. 2d at 109. Furthermore, ‘I = where a defendant’s first appearance was untimely and the defendant was not given nor signed a 7)
Notice to Appear pursuant to 8 GCA § 25.20 and 25.30, the dismissal is to be with prejudice. 23 Anastacio, CF0l50-06 (Dec. & Order at 4, Jan 2, 2007) (citing People v.
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2019JUfl25 P?f f2 5
6 IN THE SUPERIOR COURT OF GUAM 7 THE PEOPLE OF GUAM, ) Criminal Case No. CM0446-18 8 ) ) 9 Plaintiff, ) ) v. ) DECISION & ORDER ) 11 ) EDWINA K. RESELAP, ) 12 DOB:05/14/1990 ) 13 Defendant.
INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena, III on March 27, 2019 for 16 17 a hearing on a submission by Defendant Edwina Reselap’s (“Defendant”) of a Motion to
Dismiss. Defendant is represented by Assistant Public Defender Rocky Kingree, and Assistant
Attorney General Sean Brown appeared on behalf of the People of Guam. After considering the
facts of the case, and the applicable law, the Court now issues this Decision and Order granting 21
22 the Defendant’s Motion to Dismiss with prejudice.
23 BACKGROUND 24 In the morning of August 25, 2018 police arrived at the scene of a crash that had 25 occurred on Route 4 by the Hagatna Library. (Complaint at 2, Sep. 27, 2018). The Defendant,
the vehicle’s operator, was subsequently arrested after she admitted to drinking alcohol before
28 operating the vehicle and was still displaying signs of intoxication. Id. At some point before the Decision & Order CM0446-1$, People v. Reselap
filing of the Complaint, the Defendant was released from custody. (Affidavit of Service, Oct.
2 12, 2019). A Complaint was filled the following month charging the Defendant with Driving
3 While Impaired (as a Misdemeanor). Id. at 1. An arraignment hearing was held on November
07, 2018, but was continued to December 5 because the Defendant did not appear at the hearing. 5 (Minute Entry, Nov. 07, 2018). The Defendant appeared at the second arraignment hearing 6 where the Public Defenders Service Corporation was appointed to represent her. (Minute Entry,
8 Dec. 05, 2018). On February 21, 2019 the Defendant filed a Motion to Dismiss. (Notice of
‘ Mot., Feb. 21, 2019). The People did not file a response to the motion and did not oppose the 10 dismissal at the hearing. (Minute Entry, Mar. 27, 2019). The Court subsequently took the
matter under advisement. Id. 12
13 DISCUSSION
14 The Defendant asks this Court to dismiss her case with prejudice for failure to bring her 15 before a judge for a probable cause hearing her within forty-eight hours as required by 8 GCA § 16 45.10(a) and (c). (Mot. Dismiss at 3-4, Feb. 21, 2019). The People do not oppose dismissal of 17 the Complaint, but request that dismissal be made without prejudice. (Court Recording at
19 3:44:30, Mar. 27, 2019). The statute reads in relevant part:
20 § 45.10. Duty to Delivery Arrestee to Judge, or to Peace Officer. - (a) An officer making an arrest under a warrant or any person making an arrest 22 without a warrant shall take the arrested person without unnecessary deLay before a judge of the Superior Court. 23 (c) The person arrested shall in all cases be taken before the judge within forty- - eight (48) hours after the arrest, except that when the forty-eight (48) hour period 25 expires, it is the burden of the government to demonstrate that a bona fide emergency or an extraordinary circumstance existed. 26
27 8 GCA § 45.10(a) and (c). The only exception to the statute, 8 GCA §S 25.10-30, authorizes the
28 arresting officer to release a defendant so long as the officer provides the defendant with a
Page 2 of 6 Decision & Order CM0446-18, People v. Reselap
Notice to Appear containing the date which the defendant is to appear in Court, and forwards
2 the Notice to the prosecutor. $ GCA § 25.10-30. The prosecutor has the burden of proving
3 that the delay in bringing the defendant before a judge was reasonable or that some
extraordinary or emergency circumstance existed to excuse the delay. $ GCA § 45.10 (a) and 5 (c); People v. Camacho, 1999 Guam 27 ¶ 28 (although the statute sets a maximum time limit, 6 the basic test always whether the delay was unreasonable).
8 The Defendant was arrested on August 25, 201$. (Complaint at 2). No Notice to Appear
was issued. The Defendant asserts that she was held in custody over the forty-eight hour period. 10 (Court Recording at 3:43:30-44:00). The record reflects that the Defendant was not served with
a summons to appear before the Court until October 12, 2018—almost two months after her 12
13 initial arrest. (Summons, Oct. 12, 2018). Based on summons, it appears that the Defendant was
14 released at some point between August 25 and October 12. Id. However, the prosecutor has not IS provided any evidence to refute that the Defendant was held in custody for more than forty- 16 eight hours after arrest; or any explanation as to why the Defendant did not have a scheduled 17 appearance before a judge until November 07. Instead, it appears to the Court that the
19 prosecutor agrees that the Defendant’s rights were violated. (See Court Recording at 3:44:30).
20 Accordingly, the Court finds that there is no good cause as to why the prosecutor failed to
- timely bring the Defendant before a judge in violation of 8 GCA § 45. 10. $ GCA § 45. 10(a)
and (c). 23 The Fourth Amendment of the United States Constitution requires a “fair and reliable 24
25 determination of probable cause as a condition for any significant pretrial restraint of liberty and
26 this determination must be made by a judicial officer either before or promptly after arrest.” 27 Gerstein v. Pugh, 420 U.S. 103, 124-25, 95 S.Ct. 554 (1975); 4$ U.S.C. § 142 lb(c) (codifying 28
Page 3 of 6 Decision & Order CM0446-18, People v. Reselap
the language of the Fourth Amendment into the Organic Act of Guam). Title $ Section 45.10
2 represents a codification of this requirement on Guam. People v. Petros, 1986 WL 68513 at *1
3 (D. Guam App. Div. 1986). The language of Guam’s statute is based on Federal Rule of
Criminal Procedure 5(a). 8 GCA §45.10 at Note; see also People v. Camacho, 1999 Guam 27 ¶
28 (citing Fed. R. Crim. Pro 5(a) in relation to 8 GCA § 45.10). 6
7 Generally, the remedy for violations of Rule 5(a) is suppression of statements made by a
defendant during the period of untimely delay between the defendant’s arrest and his or her first
appearance. United States v. Cooke, 853 F.3d 464, 471 (8th Cir. 2017); See also United States 10 v. Melendez, 55 F. Supp. 2d 104, 107-08 (D. Puerto Rico 1999) (collecting cases). This Court 11 has previously noted, however, that dismissal is a remedy for violations of Rule 5(a) in limited 12
13 circumstances. People v. Anastacio, Superior Court Case No. CFO15O-06 (Dec. & Order at 4,
14 Jan 2, 2007) (citing Melendez, 55 F. Supp. 2d 104 (D. Puerto Rico 1999) and United States v.
Osunde, 638 F. Supp. 171 (N.D. Cal. 1986)). In determining whether dismissal is warranted, 16 courts consider the following factors: 1) whether there is any statement the court can suppress as ‘7 a remedy for the violation; 2) whether the defendant was incarcerated solely as a result of the 18
19 violation and was unlikely to be incarcerated otherwise; and 3) whether the delay in bringing the
20 defendant before the magistrate was egregious. Melendez, 55 F. Supp. 2d at 109. Furthermore, ‘I = where a defendant’s first appearance was untimely and the defendant was not given nor signed a 7)
Notice to Appear pursuant to 8 GCA § 25.20 and 25.30, the dismissal is to be with prejudice. 23 Anastacio, CF0l50-06 (Dec. & Order at 4, Jan 2, 2007) (citing People v. Dalzell, Superior 24
25 Court Case No. CM0696-04 (Dec. & Order, Jan 29, 2005)).
26 This Court finds that the facts of this case warrant dismissal with prejudice. The People 27 do not dispute that the Defendant was not timely brought before a magistrate in violation of 8 28
Page 4 of 6 Decision & Order CM0446-18, People v. Reselap
GCA § 45.10. Neither have the People produced evidence that the Defendant signed or was
2 given a Notice to Appear pursuant to $ GCA § 25.20 and 25.30. During the Defendant’s
3 unnecessary detention from the time of her arrest to her release, the Defendant made no
statement which the Court could suppress as a viable remedy. Additionally, the magistrate 5 judge’s release of the Defendant on personal recognizance demonstrates that she was 6 unnecessarily detained solely as a result of the People’s failure to bring her before a judge 7 8 within forty-eight hours in violation of 8 GCA § 45.10. (Minute Entry, Dec. 5, 2018). The only
factor in the People’s favor is that the Defendant has not demonstrated that the delay in her first 10 appearance was egregious, as the record reflects that the Defendant was released sometime 11 between August 25, 2018 and October 12, 2018 and the Court has been left to merely speculate 12
13 the length of time the Defendant was detained beyond the forty-eight hour period after her
14 arrest. (Affidavit of Service, October 12, 2018) (Defendant was personally served at her 15 apartment in Toto). However, the Court has already held that dismissal of a complaint with 16 prejudice is warranted simply where a defendant has not been given a Notice to Appear and 17 whose first appearance has been untimely delayed. Anctstacio, CF0150-06 (Dec. & Order at 4, 18 Jan. 2, 2007) (citing Daizell, CM0696-04 (Dec. & Order, Jan 29, 2005)). The present case
20 before the Court presents exactly those facts. Accordingly, the Court shall dismiss the 21 Complaint against the Defendant with prejudice. 7)
I/I 23
PageS o16 Decision & Order CM0446- 1$, People v. Reselap
I CONCLUSION
2 For the forgoing reasons, the Defendant’s Motion to Dismiss is GRANTED. IT IS
3 HEREBY ORDERED that the above-captioned matter be DISMISSED WITH PREJUDICE. 4
IT IS SO ORDERED on this 25th day of June, 2019. 6
$
12 HONORABLE ALBERTO C. LAMORENA III Presiding Judge, Superior Court of Guam 13
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