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5 IN THE SUPERIOR COURT OF GUAM-.,__ w __ 6 PEOPLE OF GUAM Criminal Case No. CF0099-22 Police Report No. 22-04263 7 vs. 8 FRANCIS GERALD UNTALAN SAN DECISION AND ORDER 9 NICOLAS, JR., (Motion to Suppress) (aka Francis Gerard Untalan San Nicolas, 10 Jr.; aka Francis Gerard San Nicolas), 11 Defendant. 12
13 INTRODUCTION
14 This matter came before the Honorable Alberto E. Tolentino on October 25, 2023, for an 15 evidentiary hearing on Francis Gerald Untalan San Nicolas, Jr.'s ("Defendant") Motion to Suppress 16 (Aug. 7, 2023). Defendant was represented by Assistant Public Defender David J. 17 Highsmith. Assistant Attorney General Kristine B. Borja appeared for the People of Guam 18 ("People"). Having duly considered the parties' briefing and oral arguments, witness testimony, and 19
20 applicable law, the Court hereby DENIES Defendant's Motion to Suppress.
21 BACKGROUND
22 Defendant has been indicted on charges of (1) Possession of a Controlled Substance (as a 23 Third-Degree Felony) under 9 GCA § 67.401.2(a) and (b), and (2) Operating a Motor Vehicle 24 Without a License (as a Violation) under 16 GCA § 3101(a). On August 7, 2023, Defendant filed 25 his Motion to Suppress. Defendant argues he was arrested and searched without a warrant, which 26 violates the Fourth Amendment to the United States Constitution; he thus argues that any items found 27
28 during the search, as well as any statements he made to police thereafter, must be suppressed. See 1 1 generally Mot. Suppress (Aug. 7, 2023). The People filed an Opposition, arguing Defendant's arrest
2 was lawful and that the search of his person falls under the "search incident to arrest" exception to
3 the Fourth Amendment. See generally Opp. Mot. Suppress (Sept 5, 2023). On October 25, 2023, 4 the Court heard the motion, received testimony from Guam Police Department ("GPD") Officer 5 Pewtress, and thereafter took the matter under advisement. 1 6 FINDINGS OF FACT 7 By a preponderance of the evidence, the Court makes the following findings of fact: 8
9 1. On the night of February 12, 2022, in the Agana Heights area, Officer Pewtress observed a vehicle make two turns without using a tum signal. Digital Recording at 10 10: 15: 18 AM (Mot. Hr' g, Oct. 25, 2023). He also observed that the front license plate of the vehicle was obscured by a "dark smoky cover." Id. at 10:15:55 AM. 11 2. Officer Pewtress recognized this vehicle as one often driven by Defendant, a person 12 who Officer Pewtress knew was a suspect in a separate criminal mischief 13 investigation. Id. at 10:16:23 AM.
14 3. Officer Pewtress followed the vehicle to the Cliff Hotel. Id. at 10:17:25 AM. Defendant exited his vehicle, and then Officer Pewtress exited his own vehicle and 15 approached Defendant in the parking lot. Id. at 10:18:08 AM; id. at 10:22:41 AM. 16 4. Officer Pewtress informed Defendant that he saw him commit traffic violations. Id. 17 at 10:18:25 AM.
18 5. Officer Pewtress asked Defendant to produce his driver's license and vehicle documentation, but Defendant was unable to do so. Id. at 10:18:35 AM. 19 6. Officer Pewtress observed that Defendant seemed nervous: his voice was shaking, his 20 hands were fidgeting, his eyes were darting around, and his feet were shuffling. Id. at 21 10:20:08 AM. Officer Pewtress testified that in his experience, these were "pre-flight indicators." Id. 22 7. Officer Pewtress then detained Defendant in handcuffs. Id. at 10:20:18 AM. He 23 testified that this was intended as a "precaution," but that he also would have had probable cause to make an arrest due to the traffic violations. See id. 24 8. At this point, in Officer Pewtress's view, while "[he] had secured him in handcuffs, 25 [he] had not formally arrested him yet." Id. at 10:21 :10 AM.
26 9. Officer Pewtress estimated that at this point, the time that had elapsed since he first approached Defendant was "about one to two minutes." Id. at 10:21:33 AM. 27
28 2 1 10. After detaining Defendant, Officer Pewtress conducted a "pat-down" of Defendant's body for "safety reasons ... for any weapons he may have had." Id. at 10:20:51 AM. 2 11. Officer Pewtress noticed what appeared to be "two big bundles" inside the pockets of 3 Defendant's shorts. Id. at 10:21 :48 AM. 4 12. Officer Pewtress asked Defendant for permission to check inside his pockets, and 5 Defendant allegedly gave consent. Id. at 10:21:52 AM.
6 13. At the time he asked Defendant for consent to the search, Officer Pewtress did not have his weapon drawn. Id. at 10:22:20 AM. There were no other officers present. See 7 id. 8 14. Inside Defendant's pockets,· Officer Pewtress found two syringes, one of which 9 contained a "white frosty substance," and a resealable plastic bag containing suspected methamphetamine. Id. at 10:22:00 AM. 10 15. Officer Pewtress then transported Defendant to the Central Precinct in Sinajana for 11 further investigation. Id. at 10:25:30 AM. 12 16. At central precinct, Officer Pewtress advised Defendant of his Miranda rights. Id. at 13 10:26:20 AM. Defendant signed a form voluntarily waiving these rights. Id. at 10:29:49 AM. Defendant then allegedly admitted that the items found in his pocket contained 14 "ice," which is a slang term for methamphetamine. Id. at 10:31: 15 AM. 15 DISCUSSION 16 The Fourth Amendment to the United States Constitution protects against unreasonable 17 searches and seizures and is made applicable to Guam via section 1421 b( c) of the Organic Act of 18
19 Guam. People v. Camacho, 2023 Guam 9, 14. "To pass muster under the Fourth Amendment,
20 searches and seizures must be reasonable under the circumstance." Id. (citing Whren v. United
21 States, 517 U.S. 806, 810 (1996)). "Warrantless ... seizures are per se unreasonable, subject to a 22 few specifically established and well-delineated exceptions." Id. , 15 (citing People v. Cundiff, 2006 23
24 A. The Initial Traffic Stop Was Lawful 25 The parties agree-as does the Court-that Officer Pewtress had a constitutionally sufficient 26
27 basis to effectuate a traffic stop on Defendant.2 A traffic stop is "unquestionably a seizure within the
28 meaning of the Fourth Amendment." People v. Rasauo, 2011 Guam 1 , 26 (citing Berkemer v. 3 1 McCarty, 468 U.S. 420,440 (1984)); see also Brend/in v. California, 551 U.S. 249,255 (2007) ("The
2 law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver even though 3 the purpose of the stop is limited and the resulting detention quite brief."). However, the Fourth 4 Amendment "permits brief detentions when a police officer has a reasonable suspicion that an 5 individual was engaged in or is about to be engaged in illegal conduct." Cundiff, 2006 Guam 12 ,r 6 40. Although reasonable suspicion is "not readily, or usefully, reduced to a neat set oflegal rules," 7
8 Camacho, 2023 Guam 9 ,r 21, reasonable suspicion "would certainly be present if officers observed
9 a traffic violation," People v. Mansapit, 2016 Guam 30 ,r 16.
10 Here, Officer Pewtress testified that he saw Defendant driving a vehicle that appeared to have 11 a covered license plate. Defendant concedes that the license plate of his vehicle was covered. Mot. 12 Suppress at 3. This is a traffic violation in Guam under 16 GCA § 7129(a). Officer Pewtress 13 therefore had reasonable suspicion to suspect that Defendant had committed a traffic violation, and 14 thus a constitutionally sufficient basis to conduct a traffic stop. 15
16 B. Defendant Was Detained, Not Under Arrest
17 Defendant contends that constitutional infirmity began when Officer Pewtress placed
18 handcuffs on him. Defendant reasons that this action converted the traffic stop from a temporary 19 detention into an unlawful "arrest." See Mot. Suppress at 3-4. The People concur that this action 20 amounted to an arrest, but contend that it was a lawful arrest because Officer Pewtress had probable 21 cause to believe Defendant had committed traffic violations iri his presence. See Opp. Mot. Suppress 22 at 2-3; see also People v. Tuncap, 2014 Guam 1 ,r 14 ("Perhaps the most common exception to the 23
24 warrant requirement is an arrest made with probable cause.").
25 However, the Court is not convinced that Defendant was "arrested" at the time of the events 26 in question. As noted above, at the outset of the traffic stop, Defendant was only detained. See 27 United States v. Rusher, 966 F.2d 868, 875 (4th Cir. 1992) (an ordinary traffic stop is "a limited 28 4 1 seizure more like an investigative detention than a custodial arrest."). Admittedly, the incident here
2 differs from an ordinary traffic stop because Defendant was placed in handcuffs. See People v. Stier, 3 168 Cal. App. 4th 21, 27 (Ct. App. 2008) ("Handcuffing substantially increases the intrusiveness of 4 a detention and is not part of a typical detention."). However, it is widely held that handcuffing does 5 not automatically transform a detention into arrest. See, e.g., United States v. Bautista, 684 F.2d 6 1286, 1289 (9th Cir. 1982); United States v. Sanders, 994 F.2d 200,206 (5th Cir. 1993); Lundstrom 7
8 v. Romero, 616 F.3d 1108, 1122 (10th Cir. 2010); People v. Celis, 93 P.3d 1027, 1032-33 (Cal. 2004)
9 (citing several Ninth Circuit cases for the premise that handcuffing a defendant "do[es] not convert
10 a detention into an arrest."). 11 Defendant asserts that under People v. Cundiff, 2006 Guam 12 and People v. Tuncap, 2014 12 Guam 1, the use of handcuffs transformed the detention into an arrest because that action "would 13 have communicated to a reasonable person that he was not free to leave." Mot. Suppress at 4. It is 14 true that under Guam law, a person may be deemed "arrested" in that circumstance. See Cundiff, 15
16 2006 Guam 12 ,r,r 20-24. But over-applying that principle in the traffic context would lead to the
17 conclusion that nearly all traffic stops are "arrests." See Berkemer, 468 U.S. at 436 ("Certainly few 18 motorists would feel free either to disobey a directive to pull over or to leave the scene of 19 a traffic stop without being told they might do so."). Accordingly, courts have recognized that a 20 traffic stop-even one where the defendant is physically restrained-is not tantamount to an arrest. 21 Two Ninth Circuit cases-United States v. Patterson, 648 F.2d 625 (9th Cir. 1981) and 22
23 United States v. Bautista, 684 F.2d 1286 (9th Cir. 1982)-are instructive here. In Patterson, the
24 defendant argued that he was not "free to leave," and therefore arrested, when officers ordered him
25 to get out of his vehicle. The court rejected this argument, explaining: 26 A valid stop is not transformed into an arrest merely because law enforcement agents 27 momentarily restrict a person's freedom of movement. They may impose such a restriction to maintain the status quo while making an initial inquiry, provided the 28 force displayed is not excessive under the circumstances. A contrary result would 5 1 leave agents powerless to perform their investigative functions without the cooperation of suspects. 2 Patterson, 648 F .2d at 633 (internal citation omitted). In Bautista, the defendant similarly argued he 3
4 was not "free to leave," and thus arrested, when he was placed in handcuffs. The Ninth Circuit
5 extended the Patterson rationale to the handcuffing, explaining that a "brief but complete restriction
6 ofliberty, if not excessive under the circumstances, is permissible during a Terry stop and does not 7 necessarily convert the stop into an arrest." Bautista, 684 F.2d at 1289. 8 From these cases, it is clear that the use of physical restraints during a traffic stop does not 9 automatically transform a detention into an arrest. Instead, physical restraints are merely one factor 10 in the "fact-specific inquiry [] guided by the general Fourth Amendment requirement of 11
12 reasonableness." Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002) (internal
13 citations omitted). To determine whether an arrest was made, the Court must "consider all the
14 circumstances surrounding the encounter between the individual and the police by evaluating not 15 only how intrusive the stop was, but also whether the methods used by police were reasonable given 16 the specific circumstances." Id. (cleaned up). 17 Officer Pewtress testified that he placed Defendant in handcuffs as a "precaution" to prevent 18 Defendant's flight. A police officer may apply handcuffs during a detention when an individual 19
20 "takes action at the scene that raises a reasonable possibility" of flight. Washington v. Lambert, 98
21 F.3d 1181, 1189 (9th Cir. 1996); see also Rabin v. Flynn, 725 F.3d 628, 639 (7th Cir. 2013) (Rovner,
22 J., concurring) (collecting cases where flight risk justified use of handcuffs). Officer Pewtress 23 testified that during his interaction with Defendant, he observed that Defendant appeared nervous 24 and was making certain physical movements-such as shuffling his feet and darting his eyes-which, 25 in Officer Pewtress's professional experience, are consistent with the actions of a person preparing 26
27 to flee. Officer Pewtress therefore had a reasonable basis to believe Defendant was a flight risk, and
28 thus to apply handcuffs to negate that precise risk. Cf Bautista, 684 F.2d at 1289 (handcuffing held 6 1 reasonable where "the suspects appeared extremely nervous and [one] kept pacing back and forth
2 and looking, turning his head back and forth as ifhe was thinking about running."). 3 In response, Defendant suggests that "many people would be nervous during a traffic stop." 4 Mot. Suppress at 3. While this is presumably true, the Court is inclined to credit the officer's 5 professional experience,3 which indicated to him that the specific combination of factors here-not 6 only Defendant's nervousness, but his physical movements as well-were indicative of a flight 7
8 risk. Generally speaking, an officer's professional experience, and actions taken in accordance with
9 that experience, merit some deference from the courts. See United States v. Boden, 854 F.2d 983,
10 993 (7th Cir. 1988) ("we will not substitute our judgment for that of the officers as to the best methods 11 to investigate."); Martinez v. Nygaard, 831 F.2d 822, 827 (9th Cir. 1987) (similar). Furthermore, 12 other factors strengthen the appearance of a flight risk. Officer Pewtress's testimony indicates that 13 the interaction with Defendant took place at night, that Officer Pewtress was the only officer present, 14 and that Defendant was on foot and outside of his vehicle during the interaction. Each of these 15
16 circumstances would have made it easier for Defendant to flee and harder for Officer Pewtress to
17 prevent him from doing so. Under these circumstances, Officer Pewtress's use of handcuffs to 18 prevent flight was reasonable. 19 The handcuffs are therefore one factor in the analysis of whether the detention had escalated 20 into an arrest, but other circumstances must be taken into account as well. Other relevant factors in 21 this analysis include whether the interaction "lasts for an unreasonably long time or if officers use 22
23 unreasonable force." United States v. Donnelly, 475 F.3d 946, 953 (8th Cir. 2007). Here, the
24 detention did not last an "unreasonably long time." The whole interaction took place within just a
25 few minutes, which suggests that Officer Pewtress "diligently pursued a means of investigation that 26 was likely to confirm or dispel [his] suspicions quickly." United States v. Sharpe, 470 U.S. 675, 686 27 (1985). Officer Pewtress also did not use "unreasonable force." The Court has already found the use 28 7 1 of handcuffs to be reasonable under the circumstance, and there is no evidence that other force was
2 used. Officer Pewtress testified that he did not have his weapon drawn, and no evidence suggests 3 that Defendant was ordered to the ground, held down, or otherwise further restrained. The Court 4 also finds it significant that Officer Pewtress testified that at this moment in time, he had not decided 5 to arrest Defendant for his traffic violations. While an officer's subjective opinion of whether an 6 arrest was effectuated is not dispositive, the fact that he did not make a formal arrest of Defendant 7
8 weighs in favor of a finding that Defendant was not under arrest.
9 Under the totality of the circumstances, the Court concludes that Defendant was initially
10 detained, and the use of the handcuffs alone did not escalate the detention into an arrest. Taking 11 account of all the relevant circumstances, Defendant was still detained at this moment. 12 C. Officer Pewtress's Pat-Down Did Not Violate the Fourth Amendment 13 Since Defendant was detained, not arrested, the next question is whether Officer Pewtress's 14 "pat-down" of Defendant was lawful under the Fourth Amendment. The Guam Supreme Court has 15 16 held that "[p ]atdowns of stopped suspects are permitted for officer safety, but only where the officer
17 both has reason to believe that the suspect is armed and dangerous and limits the pat-down to
18 searching for weapons." Tuncap, 2014 Guam 1 i! 26; see also Minnesota v. Dickerson, 508 U.S. 366, 19 378 (1993) (a pat-down is not "a general warrant to rummage and seize at will."). Officer Pewtress 20 testified that after placing Defendant in handcuffs, he conducted a "pat-down" of Defendant's body 21 for the purpose of determining whether Defendant was armed. Officer Pewtress also testified that he 22
23 had observed that Defendant appeared to have large unknown items (or "bundles" of items) in his
24 shorts, and that he knew Defendant was a suspect in at least one other pending criminal
25 investigation. Taking these facts together, Officer Pewtress had a reasonable basis to believe 26 Defendant may be armed and to conduct a brief "pat-down" in order to search for weapons. The pat- 27 down therefore did not violate the Fourth Amendment. 28 8 1 D. Defendant Consented to the Search of His Person
2 Defendant argues that since he did not give consent until after he was illegally detained, any 3 consent he gave to the search was invalid. Mot. Suppress at 4 (citing People v. Chargualaf, 2001 4 Guam 1 ,r 15). The Court has already determined that the detention was not unlawful but will still 5 examine whether Defendant's consent to the search was voluntary. 6 Officer Pewtress's testimony established that the "two big bundles" in Defendant's pockets 7
8 were not weapons. See Terry v. Ohio, 392 U.S. 1, 29-30 (1968) (an officer may seize weapons felt
9 during a pat-down). It did not establish whether Officer Pewtress believed these items were
10 contraband. See Dickerson, 508 U.S. at 376 (an officer may seize "contraband" felt during a pat- 11 down, but only if the "contour or mass makes its identity immediately apparent."). Under these 12 circumstances, the Fourth Amendment would forbid Officer Pewtress from simply reaching into 13 Defendant's pockets and seizing the items. However, Officer Pewtress's testimony indicates that he 14 asked Defendant for permission to remove the items that were inside the pockets, and that Defendant 15
16 gave him permission to do so.
17 "Through voluntary consent, police may search an area, without probable cause, over which
18 the person possesses adequate authority." Camacho, 2023 Guam 9 ,r 18 (quoting People v. Santos, 19 1999 Guam 1 ,r 33). Voluntariness is "determined based on all relevant circumstances in a particular 20 case." Id. (quoting Santos, 1999 Guam 1 ,r 19). The Guam Supreme Court has noted eleven factors 21 that are "helpful" in this analysis, although these factors are "neither exhaustive nor dispositive" and 22
23 "should not be applied mechanically." Id. ,r 20. The factors include:
24 • Whether the defendant was in custody; • Whether the arresting officers have their weapons drawn; 25 • Whether Miranda warnings have been given; • Whether the defendant was told he has a right not to consent; and 26 • Whether the defendant was told a search warrant could be obtained. 27 • Whether the consenting person was detained and the length of time of the questioning; 28 9 1 • Whether the consenting person was threatened, physically intimidated, or punished by the police; 2 • Whether the person relied upon promises or misrepresentations made by the police; • Whether the person was in custody or under arrest when the consent was given; 3 • Whether the person was in a public or a secluded place; or • Whether the person objected to the search or stood by silently while the search 4 occurred. 5 Id. A court should consider these factors in order to ascertain which facts and circumstances bear on 6 the issue of voluntariness. See id. ,r 22. In Camacho, the Guam Supreme Court analyzed several of these factors before concluding 7
8 that the defendant did not give consent voluntarily. However, the facts and circumstances here differ
9 from those in Camacho in several important ways. First, Defendant was detained at the time of
10 questioning, and unlike the arrest in Camacho, the detention here was lawful. Cf Camacho, 2023 11 Guam 9 ,r 23 ("Camacho was unlawfully under arrest."). Second, Defendant's detention was brief, 12 as the testimony suggests the interaction proceeded from the initial encounter to the handcuffing to 13 the pat-down in only less than two minutes. Cf id. ,r,r 4-7, 22 (search of the Camacho defendant's 14 vehicle followed several "phases" of investigation). Third, there is no evidence that Defendant 15
16 objected to the search. Cf id. ,r 23 ("Camacho objected to the search of his car when [the officer]
17 first inquired). Fourth, Defendant apparently gave consent the first time he was asked to do so, so
18 there was no repeated effort by Officer Pewtress to gain his consent. Cf id. ,r 29 ("we note that tests 19 from other circuits consider as a factor whether consent was prompted by repeated requests."). Fifth, 20 there is no evidence that Defendant was induced to give consent by any promise or 21 (mis)representation by Officer Pewtress. Cf id. ,r 23 ("there is some ambiguity as to whether 22 Camacho relied on misrepresentations concerning consent to search."). The Court also finds it 23
24 relevant that Defendant was in a public or semi-public place (the parking lot of the Cliff Hotel) when
25 he was asked to give consent, not in the backseat of a police car like the Camacho defendant. Cf id. 26 17 n.2. 27
28 10 1 The fact that Defendant was handcuffed weighs in favor of a finding that consent was not
2 voluntary, but it is not dispositive to the voluntariness analysis. See, e.g., United States v. Kon Yu- 3 Leung, 910 F.2d 33, 41 (2d Cir. 1990) ("Nor does a finding of coercion follow from the fact that 4 [defendant] was handcuffed."); United States v. Strache, 202 F.3d 980, 986 (7th Cir. 2000) (search 5 upheld as other factors showing voluntariness outweighed show of involuntariness due to 6 handcuffs); United States v. Telcy, 362 Fed. Appx. 83, 86-87 (11th Cir. 2010) (similar). Considering 7
8 all of the circumstances, the People have met their burden of proving that Defendant gave voluntary
9 consent for Officer Pewtress to search his pockets. And since voluntary consent is an exception to
10 the Fourth Amendment prohibition on warrantless searches, see Camacho, 2023 Guam 9 ,r 18, the 11 consensual search did not violate the Fourth Amendment. Accordingly, the physical evidence 12 discovered in that search need not be suppressed. 13 Additionally, Defendant has argued for the suppression of statements he allegedly made to 14 the police after he was taken to Central Precinct, reasoning that these statements followed from an 15
16 unlawful arrest. However, since Defendant was neither arrested nor unlawfully detained at that time,
17 no Fourth Amendment violation had occurred prior to the search. There was also no Fourth
18 Amendment violation when Defendant was actually arrested, after the suspected methamphetamine 19 and associated paraphernalia were discovered. This evidence gave Officer Pewtress probable cause 20 to arrest Defendant for possession of a controlled substance, which is a felony offense under Guam 21 law. A police officer can make a warrantless arrest, inter alia, "[w]henever the officer has reasonable 22
23 cause to believe that the person to be arrested has committed an offense in the officer's presence." 8
24 GCA § 20.15(a)(1);4 see also Cundiff, 2006 Guam 12 ,r 26 (outlining constitutional rationale for
25 probable cause requirement). Therefore, Defendant's arrest following the discovery of the suspected 26 methamphetamine was a lawful arrest, and it supplies no Fourth Amendment basis for suppressing 27 Defendant's later statements. 5 28 11 1 CONCLUSION
2 Based on the above analysis, the Court concludes that Defendant was detained-not
3 arrested-prior to the search of his person. That detention, and the pat-down that followed, was 4 reasonable under the circumstances and therefore did not violate the'Fourth Amendment. The search 5 of Defendant's person was effectuated after Defendant gave voluntary consent, and it did not violate 6 the Fourth Amendment either. Accordingly, there is no Fourth Amendment basis on which to 7 suppress either the physical evidence discovered in the search or the statements made following 8
9 arrest. Defendant's motion is therefore DENIED.
13 HONORABl.E-ALBERTO ----- ·:•,·: ~ E. TOLENTINO 14 Judge, Superior Court of Guam 15
23 S~RVICE VIA EMAIL I acknowledge that an electronic copy of the original was e-mailed to: 24
26 Date: ~Time: 3::-t~ ~v--\tvto ()/ 27 Deputy Clerk, Superior Court of Guam
28 12