POHNPEI LAW REPORTS
VOL. 3A
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STATE OF POHNPEI
v.
MIKE POWELL
Trial Division of the Pohnpei Supreme Court Pohnpei
Traffic Case No. 417-89
November 10, 1989
Motion by defendant on a citation for motor violations to suppress
evidence obtained during an alleged invalid stop by police officers. While
driving a motor vehicle the defendant was stopped by police officers who
informed. him that the muffler of the vehicle was too loud. But after
accepting the defendant's explanation he was not allowed to leave and one
of the police officers asked to see his vehicle registration and his
driver's license. He produced the vehicle registration but failed to
produce his driver's license as he did not have it in his possession. He
was not cited for a muffler violation. In his defense to a citation for
the driver's license violation the defendant claimed to be protected by
Article IV, Section 5, of the Constitution of the Federated States of
Micronesia that:
"The right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, or invasion of privacy may not be violated,"
and also the corresponding provisions of Article IV, Section 8(1) of the Pohnpei State Constitution that:
"The right of all people to be secure in their persons, houses, papers, and property against unreasonable searches and seizures may not be violated."
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He thus contended that his stopping and detention by the police officer was an intrusion to be justified. The justification must either be probable cause for an arrest or reasonable suspicion for a brief stop, and that if the justification for the initial stop was not valid then any information gained was a violation of the Constitution and therefore must be excluded. Further, he contended that Section 511 of the Pohnpei Vehicle Code which provides that:
"Any motor vehicle on a roadway shall at all times be equipped with a muffler to prevent excessive or unusual noise."
pursuant to which he was initially stopped was too vague to be enforceable, there being no objective definition of what was excessive or unusual. But assuming the officer had a valid justification to intrude, stop and detain the defendant once she was satisfied that the section was not violated, her reason to continue the detention ceased to exist, and there was no further suspicion, reasonable or otherwise, that allowed her to continue to detain the defendant and seek other information by invading his privacy and requesting documents. The thrust of the defendant's defense, relying on an Oregon statute relating to the stopping and detention of a person for a traffic infraction, was that once the officer discovered that there was no need for a citation after the defendant's explanation regarding the defective muffler the justification of any further investigation was vitiated.
The Trial Division of the Pohnpei Supreme Court, YOSTER CARL. Associate Justice, denying the motion, held that Section 511 of the Pohnpei Vehicle Code was not too vague to be enforceable by reason of the words "excessive or unusual noise" and not violative of due process and unconstitutional; that the State's interest and purpose of enforcing motor vehicle safety regulations so as to remove from the road the unlicensed driver, and also of deterring such driver from the State's highways should prevail over the minimum, if any, intrusion on the driver's personal liberty; that given that the deterrence rationales in itself is a valid reason for the random stopping and checks, a police officer in Pohnpei State, in the lawful exercise of his authority to check vehicle and driver offenses, may reasonably stop a driver for probable cause or upon reasonable suspicion for the purpose of questioning him about the mechanical condition of his motor vehicle and without allowing him to leave also demand the production of the driver's license.
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1. Statutes - Penal Statutes - Construction - Constitutionality
It is well settled that a criminal statute which is so indefinite, vague and uncertain that the definition of the crime or standard of conduct cannot be ascertained therefrom, is unconstitutional and void. However,
1. there is uniformity of opinion among the authorities that a statute will not be held void for uncertainty if any reasonable and practical construction can be given to its language;
2. the fact that its meaning is difficult to ascertain or susceptible to different interpretations does not render the statute void;
3. all presumptions and intendments favor validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity;
4. statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears;
5. doubt as to its construction will not justify the court in disregarding the statute;
6. in determining whether a penal statute is sufficiently explicit to inform those who are subject to it what is required of them, the courts must endeavor, if possible, to view the statute from the standpoint of the reasonable man who might be subject to its terms;
7. it is not required that a statute, to be valid, have the degree of exactness which adheres in a mathematical theorem;
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8. it is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited;
9. the requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding;
2. Statutes - Penal Statutes - Construction
While the words "excessive" and "unusual" used in Section 511 of the Pohnpei Vehicle Code are abstract words, they have, through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden by the section, and are therefore sufficient to establish a standard of conduct which is ascertainable by persons familiar with the operation of automobiles.
3. Statutes - Statutes Adopted from Other Jurisdictions - Construction
It is a settled rule of statutory construction that a statute adopted from another jurisdiction is presumed to have been adopted as construed by the courts of that jurisdiction.
4. Statutes - Penal Statutes - Construction - Constitutionality
Section 511 of the Pohnpei Vehicle Code which provides that "Any motor vehicle on a roadway shall at all times be equipped with a muffler to prevent excessive or unusual noise", is not too vague to be enforceable, violative of due process and unconstitutional.
5. Automobiles - Motor Traffic Regulations - Police Officers - Powers of Enforcement - Random Stops
A police officer who has probable cause to believe that motor
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traffic regulations are being violated has authority to stop the alleged violator for the purpose of questioning or investigating the perpetrator of the offense.
6. Automobiles - Motor Traffic Regulations - Police Officers - Powers of Enforcement - Random Stops
Where there is probable cause or other articulable basis amounting to a reasonable suspicion that the driver of a motor vehicle is unlicensed or that the vehicle is unregistered, there is legitimate basis upon which a police officer could decide to stop a particular driver for a spot check.
7. Automobiles - Motor Traffic Regulations - Police Officers - Powers of Enforcement - Random Stops
The unbridled exercise of discretion by police officers in making random stops for the purpose of enforcing motor traffic regulations violates the constitutional right of drivers against unreasonable search, seizure or invasion of privacy.
8. Automobiles - Motor Traffic Regulations - Police Officers - Powers of Enforcement - Random Stops
The State's interest and purpose of enforcing motor vehicle safety regulations so as to remove from the road the unlicensed driver and also of deterring such driver from the State's highways should prevail over the minimum, if any, intrusion on the driver's personal liberty.
9. Automobiles - Motor Traffic Regulations - Police Officers - Powers of Enforcement - Random Stops
Given that the deterrence rationale in itself is a valid reason for stopping and checks, a police officer in Pohnpei State, in the lawful exercise of his authority to check motor vehicle and driver offenses, may reasonably stop a driver for
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probable cause or upon reasonable suspicion for the purpose of questioning him about the mechanical condition of his motor vehicle and, without allowing him to leave, demand the production of the driver's license.
10. Automobiles - Motor Traffic Regulations - Police Officers Powers of Enforcement - Random Stops - Reasonableness
Whether or not a random stopping of a driver of a motor vehicle by a police officer for the purpose of enforcing motor traffic regulations is reasonable will depend upon the circumstances of each case.
11. Criminal Law - Motor Traffic Regulations - Enforcement by Police Officers - Probable Cause or Reasonable Suspicion Definition
(1) What is probable cause or reasonable suspicion may not always be tangible, but good ground or having such evidence as would make the police officer inclined to believe, though with a doubt, would be probable cause.
(2) "Probable cause" is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so,
12. Criminal Law - Motor Traffic Regulations - Enforcement by Police Officers - Probable Cause or Reasonable Suspicion
Where a police officer for probable cause stops a motorist for the purpose of questioning about an apparent traffic offense, it is possible for the officer to have probable cause for each other succeeding traffic offenses he investigates following the one and the same stopping.
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13. Criminal Law - Motor Traffic Regulations - Enforcement by Police Officers - Probable Cause or Reasonable Suspicion - Evidence
Whether or not a police officer who stops a motorist for the purpose of enforcing motor traffic regulations has probable cause for the stopping of a driver is a matter of evidence.
14. Statutes - Foreign Statutes - Application
A foreign statute establishing rules for the stopping and detention of a driver for the purpose of investigation related to a traffic infraction, identification and issuance of citation has no application in Pohnpei.
Counsel for State: Dickson Santos
Trial Counselor
Public Prosecutor's Office
Counsel for Defendant: Pro Se
YOSTER CARL, Associate Justice
Upon consideration of the defendant's Motion to Suppress, and after argument of counsel, I deny the motion of the defendant in this case for reasons stated herein.
The defendant in this case stands cited for the offense of driving a motor vehicle without having in his possession his driver's license.
According to him he was stopped on the day in question by
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two police officers one of whom informed him that his vehicle's muffler was too loud. But after explaining to the officer that there was nothing wrong with the muffler but rather that the exhaust pipe from the engine to the muffler was broken and could not be welded and that there was no replacement part available on Pohnpei his explanation was accepted. However, the officer then asked to see the vehicle registration and the defendant's driver's license. He produced the vehicle registration but failed to produce his driver's license as he did not have it in his possession.
In his defense to the citation on the driving license, the defendant seeks to be protected by Art. IV, Section 5 of the FSM Constitution which provides that:
"The right of the people to be secure in their persons, houses, papers and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated."
and also the corresponding provisions of Art. IV, Section 8(1) of the Pohnpei State Constitution which provides that:
"The right of all people to be secure in their person, houses, papers and property against
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unreasonable searches and seizures may not be violated."
He thus contends that "the Government's actions via its Police force and officers is limited by requiring that intrusions be justified. The justification must either be probable cause for an arrest or reasonable suspicion for a brief stop." He argues that official intrusion into activities of the people requires for its justification that the official has valid and articulate reasons to believe that the person arrested or detained has violated the law, citing Terry v. Ohio, 392 U.S. 1 (1968) and Delaware v. Prouse, 440 US 648 (1979). He further contends that if the justification for the initial stop is not valid then any information gained is a violation of the Constitution [the American Constitution] and therefore must be excluded. Wong Sun v. United States, 371 US 471 (1963).
The defendant further argues that the only articulable fact upon which the'`stop leading to the citation for driving without his driving license in his possession was the officer's belief that Section 511 of the Pohnpei Vehicle Code which requires that:
"Any motor vehicle on a roadway shall at all times be equipped with a muffler to prevent and
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[sic] excessive or unusual noise." (defendant's emphasis)
was being violated by the defendant. He therefore is of the view that:
(1) Section 511 of the Code is too vague to be enforceable there being no objective definition of what is excessive or unusual noise, and that due process requires that any criminal statute must be written specifically enough to put the people on notice of what is prohibited so they may conform their conduct to the law. Laion v. FSM 1 FSM Interim 503 (App. 1984); Connally v. General Construction Co. 269 US 385 (1926) at 391. Thus if the law, that is to say Section 511 of the Code, that formed the basis of the stop is not valid neither is the stop or detention or any of the fruits of that stop.
(2) The fact that the officer did not issue any citation for a violation of Section 511 brings with it an admission that her suspicion for the stop was unfounded.
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(3) Assuming the officer had a valid justification to intrude, stop and detain the defendant once she was satisfied upon inquiry that Section 511 was not violated her reason to continue the detention ceased to exist, and there was no further suspicion, reasonable or otherwise, that allowed her to continue to detain the defendant and seek other information by invading his privacy and requesting documents. Kolender v. Lawson 461 U.S. 352 (1983). Therefore the citation before this Court is constitutionally tainted and must be suppressed.
The defendant thus moves the Court to suppress the stop and all evidence obtained therefrom.
The defendant filed Supplemental Points and Authorities in support of his motion to suppress and cited the case of State v. Farley, Oregon Supreme Court NO. S 35794 dated June 131989 (as reported in 45 Criminal Law Reporter 2284) (7-26-89). The thrust of that opinion interpreting and applying Oregon statutes relating to the stopping and detention of drivers for traffic infractions is that where an officer lawfully stops a person for the purposes of investigation reasonably related to the [apparent] traffic infraction of operating a vehicle without license plates the officer could ask the person to show his driver's license only for the purposes of
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investigation reasonably related to the stop. Upon seeing that the vehicle had a temporary permit, the justification of any investigation was vitiated. The officer had no authority to proceed further. That authority ended with the officer's discovery that the traffic infraction he was investigating had not actually occurred.
Similarly, the defendant contends that once the officer discovered that in his case there was no need for a citation after the defendant's explanation regarding the defective muffler the justification of any further investigation was vitiated. In other words the reason for the stop had dissipated and that no further investigation of the condition of the muffler or the identity of the defendant was necessary.
Without much comment it should be observed that the Digest of the Court Opinion which the defendant relies upon in his argument is rather scanty in its facts. It is therefore not very reliable. That case can be distinguishable from the instant case given the full facts and reasoning behind the opinion. One thing is significant. The decision interprets Oregon statutes which are not the same as the Pohnpei Code.
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For the purpose of comparison the text of the Digest of Opinion referring to the statutes is as follows:
"ORS 810. 403 (3), 153.110 (3) and 807-570 govern the stop and detention of drivers for traffic infractions. The first provides in part that although officers may not arrest a person for a traffic infraction, they may stop and detain a person for a traffic infraction for the purpose of investigation reasonably related to the traffic infraction, identification and issuance of citation.'
ORS 153.110 (3) provides that a detention of a suspected traffic offender may continue 'only so long as is necessary to determine, for the purposes of issuing a citation, the identity of the violator and such additional information as is appropriate for law enforcement agencies in the state.'
ORS 807.570 makes it an offense to fail to present a license or permit to a police officer when requested to do so upon being lawfully stopped or detained when driving a vehicle."(emphasis added)
The prosecution's response to the motion to suppress addresses the defendant's argument as to the vagueness and
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resulting unenforceability of Section 511 of the Pohnpei Vehicle Code and argues that the Code was adopted from the California Vehicle Code and that Smith v. Peterson, 280 P2d 522,131 CA 2d 241 has decided that Section 511 is not void for vagueness. He therefore urges the Court to adopt the reasoning of the California Court, relying on the rule in Andohn v. FSM, 1 FSM Interim 434 (App 1984) that a statute adopted from another jurisdiction is presumed to have been adopted as construed by the Courts of that jurisdiction.
Smith v. Peterson is a case in which the manufacturers and installers brought action against a Highway Patrol Commissioner and others to restrain the defendants from enforcing Vehicle Code provision requiring use on motor vehicles of mufflers which prevent "excessive" or "unusual" noise - the very words in issue in the instant case. That Court of Appeals (California) held that the statute was enforceable.
[1] The following holdings appeared in the judgment:
(1) It is well settled that a criminal statute which is so indefinite, vague and uncertain that the
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definition of the crime or standard of conduct cannot be ascertained therefrom, is unconstitutional and void.
However,
(2) there is a uniformity of opinion among the authorities that a statute will not be held void for uncertainty if any reasonable and practical construction can be given to its language;
(3) the fact that its meaning is difficult to ascertain or susceptible of different interpretations render the statute void;
(4) all presumptions and intendments favor validity of a statute and mere doubt does not afford sufficient reason for a judicial declaration of invalidity;
(5) statutes must be upheld unless their unconstitutionality clearly, positively and unmistakably appears;
(6) doubts as to its construction will not justify us [the Court] in disregarding it [statute];
(7) in determining whether a penal statute is sufficiently explicit to inform those who are subject to it what is required of them, the courts must endeavor, if possible, to view the statute from
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the standpoint of the reasonable man who might be subject to its terms;
(8) it is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem;
(9) it is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited;
(10) the requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. (Citations omitted).
[2] In my opinion Smith v. Peterson is very persuasive in force and applying its very elaborate exposition of the rules on statutory interpretation and constitutionality there is no merit in the defendant's argument that Section 511 of the Pohnpei Vehicle Code is too vague to be enforceable. The Court in that case held that similar terms to "excessive" or "unusual" have been upheld by some States in the United States as not being indefinite or uncer-
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tain. "While these are abstract words, they have, through daily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden". The Court went on and said:
"It appears to us that the requirement that a motor vehicle be equipped with a muffler in constant operation so as to prevent any excessive or unusual noise seems as certain as any rule which could be practically enforced. Motor vehicles have been used so long and have become so common, and mufflers so uniformly used to minimize the noise from their exhaust that what is usual has become a matter of common knowledge, and anything in excess of that is excessive and unusual, and usually capable of ascertainment as such. It may be that physicists have established definite standards of loudness of sound and means for measuring it, but this does not mean that such laboratory operations must be carried out by Traffic Officers on the highway where violators of this statute must be found and evidence against them obtained. The tendency of the recent decisions is toward a more liberal construction of the rule requiring certainty . . . The sections here involved have been on the statute books in substantially the same form since 1913 . . . The standard there defined has since been applied. The mere fact that there may
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have been some new scientific instrument capable of measuring noise more scientifically would not make the statute unconstitutional. We conclude that the words "excessive" or "unusual", when viewed in the context in which they are used are sufficiently certain to inform persons of ordinary intelligence of the nature of the offense which is prohibited, and are therefore sufficient to establish a standard of conduct which is ascertainable by persons familiar with the operation of automobiles."
In view of these conclusions, the court held that the other claimed reasons advanced why the sections of the California Traffic Code in issue were unconstitutional, were equally untenable. I see no reason why the same cannot be said in the instant case.
The defendant argues that Smith v. Peterson being an intermediate appellate court decision of more than 30 years is less persuasive because a New York case, People v. Sessons [sic] 176 NYS 2d 785, (fee Later Case Series for 49 ALR 2d 101) held the same statute was unconstitutional. In the first place I must say that the case referred to is the case of Sisson, and in the next place what Sisson says is that "statute prohibiting operation of motor vehicle
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with inadequate muffler is unconstitutional in that it fails to set up any standard sufficient to define a violation thereof, since to permit conviction to stand based upon hearing of one individual, even though he is state trooper, permits too much interpretation of violation to vest in law enforcement officer." It is clear that Sisson turns on the words of the statute in question. (emphasis added)
Later New York cases have held otherwise than Sisson. The statutes in question in these cases have similar words to the Pohnpei Vehicle Code. In People v. Merry 178 NYS 2d 454 it was held that "statute requiring motor vehicles to be equipped with mufflers in good working order to prevent any excessive or unusual noise, and prohibiting the modification of the exhaust system in a manner that increases or amplifies the sound of the motor is valid (emphasis mine.) Again in the New York Case of People v. Byron 17 NY2d 64, 268 NY2d 24, 215 NE2d 345, the court held that "statute requiring adequate muffle' so as to prevent any excessive or unusual noise' was not unconstitutionally vague and indefinite as to defendant whose muffler was in such state of disrepair that noise exceeded usual level; statute was not arbitrarily
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applied as between automobiles and trucks or motorcycles making more noise, since only requirement is that each motorist keep noise of his particular vehicle at minimum for that class of vehicles." (emphasis added)
The digest of these cases appear in 49 ALR 2d 101, 102 (Later Case Service). Thus Smith v. Peterson continues to be the law at least in California from which jurisdiction the Pohnpei Vehicle Code provisions at issue were adopted.
[3-4] Applying the presumption enunciated in Andohn v. FSM (supra) that "it is a settled rule of statutory construction that a statute adopted from another jurisdiction is presumed to have been adopted as construed by the courts of that jurisdiction" it is my view in the light of the very persuasive opinion in Smith v. Peterson (supra) that Section 511 of the Pohnpei Vehicle Code is to be construed as construed by the California Court insofar as that section was adopted from the California Vehicle Code. Section 511 therefore cannot be said to be too vague to be enforceable, violative of due process and unconstitutional. I hold, therefore, that the law that formed the basis of the police officer's stopping of the
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defendant in the instant case is valid and enforceable.
The next question to consider is whether a police officer who stops a motorist for an alleged violation of a motor traffic law but who decides after explanation by the motorist not to issue a citation thereby admits that her suspicion for the stop was unfounded. Put in another way, where a public prosecutor decides not to prosecute a person who has committed an act proscribed by law, can it be said that that act is not an infraction of the law? I do not doubt that the act continues to be a wrongful act and is forbidden by law notwithstanding that it has been left unpunished. In the performance of his functions, a police officer like any public prosecutor, exercises a certain amount of discretion, thus it is not for every instance of alleged infraction of the law that a police officer or public prosecutor would issue a citation or prosecute. The reason for letting off the alleged wrongdoer may be otherwise than an admission that suspicion for the offense is unfounded. Indeed he may decide not to issue a citation or to prosecute because an explanation for the conduct of the wrongdoer makes it rather too harsh to issue a citation or to prosecute as in the present case. A word of
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warning by the police officer and an encouragement to do better next time is common knowledge where the explanation is acceptable.
[5] There is authority for a police officer who has probable cause to believe that motor traffic regulations are being violated to stop the alleged violator for the purpose of questioning or investigating the perpetrator of the offense.
[6] Delaware v. Prouse (supra) holds by the majority opinion that where there is probable cause to believe that a driver is violating any of the multitude of applicable traffic and equipment regulations, or there is other articulable basis amounting to a reasonable suspicion that the driver is unlicensed or his vehicle is unregistered there is legitimate basis upon which a police officer could decide to stop a particular driver for a spot check. In the absence of this basis stopping an automobile and detaining the driver in order to check his driver's license and registration of the automobile are unreasonable under the Fourth Amendment.
The Court in Delaware v. Prouse, however further holds that their decision as enunciated does not preclude the State of
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Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. It suggests that questioning of all coming traffic at roadblock-type stops is one possible alternative to the random spot checks.
The Delaware v. Prouse case came before the United States Supreme Court because the Delaware Supreme Court had held that the stop at issue in the case not only violated the Federal Constitution but also was impermissible under Art. 1, Section 6, of the Delaware Constitution. The Court said, based on its reading of the Delaware Supreme Court's opinion it was satisfied that even if the State Constitution would have provided an adequate basis for the judgment, the Delaware Supreme Court did not intend to rest its decision independently on the State Constitution, hence the Supreme Court's jurisdiction.
The majority holding in Delaware v. Prouse seems to imply that where Delaware or other States develop methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion, such as the roadblock-type
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stops then there is no violation of a driver's Fourth Amendment rights if there is no probable cause to believe that a driver stopped at that roadblock is violating any applicable traffic and equipment regulation, nor need there be other articulable basis amounting to reasonable suspicion that the driver who is stopped at such roadblock is unlicensed nor his vehicle registered. This, in the view of Mr. Justice Rehnquist, who wrote a dissenting opinion in the case, renders the rule "curiouser and curiouser" as one attempts to follow the Courts explanation for the roadblock type of stop.
The learned judge agrees with the majority that "people are not shorn of their Fourth Amendment protection when they step from their houses into the public sidewalks or from the sidewalks into their automobiles. But a random license check of a motorist operating a vehicle on highways owned and maintained by the State is quite different from a random stop designed to uncover violations of laWs that have nothing to do with motor vehicles. No one questions that the State may require the licensing of those who drive on its highways and the registration of vehicles which are driven on those highways. If it may insist on these requirements,
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it obviously may take steps necessary to enforce compliance. The reasonableness of the enforcement measure chosen by the State is tested by weighing its intrusion on the motorists' Fourth Amendment interests against its promotion of the State's legitimate interests."
Accordingly, the judge was of the view that the State's primary interest, however, is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists. He said, "The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The Court would apparently prefer that the State check licenses and vehicle registrations before the wreckage is being towed away."
The judge was also critical of the majority's failure to be impressed with the deterrence rationale - that an unlicensed driver who is not deterred by the prospect of being involved in a traffic violation or other incident requiring him to produce a license would be deterred by the possibility of being subjected to a spot check. In his view there was no shred of empirical data in the record
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suggesting that a system of random spot checks would fail to deter violators. Accordingly the State's determination that random stops would serve a deterrence function should stand. To me these are very persuasive words indeed and do make sense. I would thus adopt his reasoning.
It is apparent from the Supreme Court's judgment in the Delaware v. Prouse case that the decision in that case is based upon how the Court would view the kind of stop as happened in that case in the light of the Fourth Amendment of the United States Federal Constitution and not from the standpoint of States law. Thus the Court in its opinion in that case acknowledged the fact that in some States random stops as occurred in that case were not prohibited by the Fourth Amendment.
In Myricks v. United States 370 F. 2d 901 (1967), for example, the Appellant Myricks while driving a motor vehicle was stopped for a routine driver's license check and he told the police officer he had none. He was then requested to produce the registration certificate for the vehicle, but was unable to identify the person in whose name the vehicle was registered. He and his
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companion were arrested but tried to flee. They both were rearrested and searched. They both waived counsel and hearing before the Commissioner. The Appellant Myricks pleaded not guilty and moved to suppress certain evidence. On the question of probable grounds for knowing a violation of Texas law was occurring the United States Court of Appeals Fifth Circuit held that under Texas law, a member of the Texas highway patrol had authority to arrest a motorist without a warrant for an offense committed in the officer's presence. The Court said "Upon the Patrolman's demand, Myricks did not, could not, produce a valid operator's license. Whether considered in terms of physical operations which had occurred up to the moment of the stop for traffic check or those which would occur immediately upon the car being driven on, the officer knew with positiveness that Texas law was being violated. (emphasis added)
In Myricks's case, the Court went on "the Constitution is, it is often said, a living document. If it lives, it must take account of the dominant symbol of today's dynamic society. It must recognize, therefore, that Texas has a legitimate interest in the road worthi-
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ness of automobiles which
transport but which can maim and kill . . . This comprehends both technical fitness of the driver and the mechanical fitness of the machine. After the event it is always too late. The State can practice preventive therapy by reasonable roan checks to ascertain whether man and machine meet the legislative determination of fitness. That this requires a momentary stopping of a traveling citizen is not fatal. Nor is it because the inspection may produce the irrefutable proof that the law has just been violated. The purpose of the check is to determine the present, not the past: is the car, is the driver now fit for further driving? In the accommodation of society's needs to the basic right of citizens to be free from disruption of unrestricted travel by police officers stopping cars in the hopes of uncovering the evidence of non-traffic crimes , . . . the stopping for road checks is reasonable and therefore acceptable. Likewise, an arrest is proper if the check reveals a current violation~which by its nature must have been taking place in the immediate past." It may be noted, however, that at the time of reporting Myricks's case the Texas Courts, had not passed on the question of the "authority of any police officer to stop a motorist.
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[under Art. 6687b, Section 13] for the purpose of determining whether or not he was in possession of a valid driver's license." Petition for certiorari was dismissed by the U.S. Supreme Court 386 US 1015 (1967).
Also, in the United States v. Jenkins 528 F. 2d 71 3 (1975), Jenkins was convicted on a charge of interstate transportation of a stolen motor vehicle. Prior to trial he filed a motion to suppress which was denied and he appealed. A patrolman testified that he made a random stop of Jenkins's vehicle for a routine registration check. Prior to the stop he had noticed nothing unusual or suspicious about the vehicle or the conduct of its driver. He asked the driver for his driver's license and the driver produced an expired New York driver's license. The patrolman then asked the driver to produce registration papers for the vehicle, and this he was unable to do. It turned out upon further inquiry that the vehicle was a stolen vehicle and Jenkins was arrested. He was found guilty of transporting in interstate commerce a motor vehicle which he knew to have been stolen. On appeal the sole issue was the "stop" made by the patrolman of the Jenkins's driven vehicle. He contended that the
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stop was unreasonable and therefore in violation of his Fourth Amendment right, and that the resultant fruits of this unlawful arrest were inadmissible in evidence. The court did not agree.
The court held that in stopping the Jenkins's vehicle the patrolman was acting pursuant to New Mexico Statutes which provided that every owner of a vehicle shall exhibit his vehicle registration papers "upon demand of any police officer," and also that every driver shall display his driver's license "upon demand of a justice of the peace, police officer, or afield deputy or inspector of the division." The court was also of the view that even though the patrolman in the Jenkins Case might well have been acting in accord with New Mexico law, his actions must still comport with the requirements of the Fourth Amendment to the United States Constitution. In the court's view the stopping of the vehicle and the ensuing limited inquiry of the driver were not unreasonable and did not offend the Fourth Amendment. (emphasis added.)
In Jenkins the United States Court of Appeals, Tenth Circuit, followed its decision in United States v. Lepinski, 460 F.2d 234 (10th Cir 1972). In Lepinski the stopping was not the result of a
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roadblock, where all cars were being stopped, nor was there anything suspicious about the vehicle or its driver which prompted the police officer to select the particular vehicle for a check of the driver's license and registration papers. It was a random stopping, just as was true in Jenkins's case.
However Delaware will prevail over these cases since that is a U.S. Supreme Court decision interpreting the federal law in the light of random or spot checks and certiorari was allowed in that case to resolve the conflict between the decisions of the different State jurisdictions, 439 US 816.
[7] It is thus clear from the cases that random stops by the police as did occur in the present case are not altogether violative of Fourth Amendment rights. What makes such stops offensive to the Fourth Amendment is the unbridled exercise of discretion by the police in making such stops. It appears that the circumstances of the stopping of-the vehicle and the ensuing inquiry of the driver whether limited or otherwise and if reasonable or otherwise will determine whether the Fourth Amendment protection is being violated. At least if the police officer has no probable cause, there
[3A
PN.L.R. 726]
must be reasonable suspicion to justify the stopping.
Further, as to the question whether upon the police officer's failure to issue a citation after stopping the defendant for the alleged defective muffler under Section 511 of the Pohnpei Vehicle Code her reason to continue the detention ceased to exist, and there was no further suspicion, reasonable or otherwise, that allowed her to continue to detain the defendant and seek other information, by demanding the production of his driver's license.
The defendant, as noted earlier, relies upon the holding in Farley's Case (supra) and contends that as soon as the reason for a vehicle stop (in this case his defective muffler) had been satisfied, the stop must come to an end and the driver of the vehicle must be allowed to proceed on his way, and that the police officer had no justifiable basis for demanding to see his driver's license. I must emphasize that that case turns on its facts and upon the construction of Oregon statutes. The case does not establish a universal rule in that the statutes of the various state jurisdictions are not identical.
[3A
PN.L.R. 727]
Under Pohnpei law, to wit the Pohnpei Vehicles Code, S.L. 2L-132-82, Section 301 provides that:
"No person shall operate any motor vehicle in the State without a valid driver's license . . ."
Section 310 provides that:
"Every person shall have a driver's license or learner's permit in his immediate possession at all times when operating a motor vehicle and shall display the same upon demand of a police officer."
Section 511 provides that:
"Any motor vehicle on a roadway shall at all times be equipped with a muffler to prevent excessive or unusual noise."
And also Section 102 (1) provides that
"it shall be a misdemeanor for any person to violate any provision of this Act, unless such violation is by this act or other law of this State declared to be a felony."
These provisions of the Pohnpei Vehicle Code are either offense-creating or regulatory in character and though police offi-
[3A
PN.L.R. 728]
cers enforce these provisions their authority to stop a motorist for the purpose does not derive from these provisions. Their authority resides in their general power of arrest with or without a warrant and in the case of motor vehicle and driver misdemeanors to issue citations under S.L.1 L-118-87 relating to the issuance of citations by the Division of Public Safety. Unlike the Oregon Statute the Pohnpei Vehicle Code does not say that a police officer may, "stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation" nor does it provide that a detention of a suspected traffic offender may continue "only so long as is necessary to determine, for the purposes of issuing a citation, the identity of the violator and such additional information as is appropriate for law enforcement agencies in the State." As I fail to find anything in the Pohnpei Vehicle Code, S.L. 2L-132-82, SL 1 L-11887 or any other law in Pohnpei State similar to the Oregon statute I think it is ill-conceived to import into Pohnpei jurisprudence such concept as the Farley Case of Oregon propounds.
[3A
PN.L.R. 729]
Needless to say, these provisions of Pohnpei law only prescribe offenses and do not prescribe rules for the arrest of persons. When Pohnpei State police officers enforce the Pohnpei Vehicle Code they exercise their general powers of arrest whether with or without a warrant. When they stop or arrest a motorist for a traffic offense or investigation without a warrant they should be exercising their common law power of arrest without a warrant in respect of offenses committed in their presence or which they reasonably suspect defendant has committed. In Pohnpei the power of arrest without a warrant is not governed by statute. P Rules of Criminal Proc. Rule 4. Thus the common law position applies in cases of arrests by police officers without a warrant. The rules for the stopping, detention or arrest of persons in connection with motor vehicle offenses do not have the express definitive limitations that are imposed by the Oregon statute as stated in Farley's Case. Farley therefore cannot be a persuasive precedent on traffic stopping and motor offense investigation procedure in Pohnpei, let alone being a binding precedent.
Pohnpei law requires that every person who operates a motor
[3A
PN.L.R. 730]
vehicle shall have in his immediate possession at all times hi: driver's license and shall display it upon demand of a police officer I think the purpose of this is to keep the unlicensed driver off the public highways. Any person who fails to comply with the law commits an offense and the State has a legitimate interest in deterring the unlicensed driver from driving a motor vehicle on the public highways.
[8-10] In my opinion it is the State's interest and purpose of enforcing motor vehicle safety regulations so as to remove from the road the unlicensed driver and also of deterring such driver from the State's highways that should prevail over the minimum, if any, intrusion on the driver's personal liberty. Therefore given that the deterrence rationale in itself is a valid reason for the random stopping and checks, a police officer in Pohnpei State in the lawful exercise of his authority to check motor vehicle and driver offenses may in my view reasonably stop a driver for probable cause or upon reasonable suspicion for the purpose of questioning him about the mechanical condition of his motor vehicle and without allowing him to leave also demand the production of the driver's license. The
[3A
PN.L.R. 731]
reasonableness of the stopping in each case will depend upon the circumstances.
[11-13] What is probable cause or reasonable suspicion may not always be tangible, but good ground or having such evidence as would make the police officer inclined to believe, though with a doubt, would be probable cause. "Probable cause" is a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. (see 34 Words & Phrases, p.12). On this basis I do not think that a police officer who stops a motorist and demands the production of his driver's license after having first questioned the motorist about an apparent traffic offense necessarily will have no probable cause to demand the production of the driver's license. It is possible for the officer to have probable cause for each succeeding traffic offense he investigates following the one and the same stopping. Whether or not he has probable cause is a matter of evidence.
[3A
PN.L.R. 732]
[14] As to the evaporation of probable cause as held in Farley's Case, for the purpose of argument, the defendant would seem to be saying that supposing he was initially stopped by the police officer for probable cause for the production of his driver's license and he produced one, or he had none but the officer accepted his explanation therefor, the officer would not be justified to detain him and question him about his defective vehicle muffler (given its condition) following the one and the same stopping for probable cause or other articulable basis amounting to a reasonable suspicion as according to the Farley Case the reason for his continued detention would be vitiated by his production of his driver's license or the police officer's acceptance of his explanation. I think this reversed position of the two vehicle requirements for which he was stopped reveals an absurdity in the application of the rule in Farley, and I accordingly hold the rule has no application here. As I have said, it is possible for an officer to have probable cause for multiple motor vehicle law infractions which he would want to investigate during the one and the same stopping of a
[3A
PN.L.R. 733]
driver.
In Otis v. Trust Territory of the Pacific Islands, 5 TTR 309 the appellant was convicted of reckless driving and driving without a license in his possession. His taxicab went into a ditch at the side of the road and his explanation was that he drove it there to avoid a collision with a truck. The police did not see the event occur and the only explanation of the incident was that given by the appellant. Though the Court found that there was no evidence to sustain the charge of reckless driving and for that reason reversed the trial court's decision finding him guilty on the reckless driving charge, the Appellate Court held that the license charge was warranted and affirmed the verdict of guilty on that charge.
[10] In Otis he was not stopped by the police but that case shows that a person can be cited for multiple traffic offenses resulting from the same incident and the excuse of the first does not necessarily render unjustified the other citations.
Accordingly, it is ORDERED that the motion of the defendant be and is hereby denied.