Series: 5ASR3d | Year: () | 5ASR3d24
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High Court of American Samoa

Trial Division


CR No. 98-00


February 14, 2001



[1] Although self-incriminating statements of a suspect under

interrogation without a prior Miranda warning are subject to the

exclusionary rule, the suspect must be in custody and subject to official



[2] On-the-scene

questioning by police officers to determine whether a crime has been committed

or is in progress, as distinguishable from custodial interrogation, does not

require Miranda warnings.


[3] General

test for determining whether there has been custodial interrogation—whether

reasonable person would have believed he could not leave freely—has been held

inapplicable in prison setting where question is whether, during interrogation,

inmate was subjected to more than usual restraint on prisoner’s liberty to



[4] On-the-scene investigative questioning in prison

setting does not require Miranda warnings.


[5] Defendant

returning from unsupervised work release was subjected to routine search on

prison grounds which revealed contraband in his shoe.  Without threats, deceptions, intimidations,

or Miranda warnings, officer

conducting search began on-the-scene questioning and defendant immediately

answered.  Defendant’s right against

self-incrimination was not violated and statements to officer are admissible.


[6] In

determining whether person has right against unreasonable search and seizure,

reasonable-expectation-of-privacy standard is clearly restricted when person

asserting expectation is incarcerated or in custody.


[7] Inmate returning from work release has no reasonable

expectation of privacy and, therefore, no right under Rev. Const. of Am. Samoa,

Art. I, Sec. 5, regarding routine patdown and shoe-search procedures, which

only pose minimal degree of intrusion upon privacy.

Before KRUSE, Chief Justice, and ATIULAGI, Associate



Counsel:          For

Plaintiff, John W. Cassell, Assistant Attorney General

             For Defendant, Bentley C. Adams III, Assistant

Public Defender




The defendant David Galumalemaga (“Galumalemaga”) is

charged with unlawful possession of a controlled substance under A.S.C.A. §§

13.1022 and 13.1006.  Just after midnight

on the morning of August 30, 2000, Galumalemaga returned from work release to

the Correctional Facility in Tafuna, where he was serving detention as a

probation condition.  He encountered PSO

Pasi Sua`ava (“PSO Sua`ava”), the guard on duty at the time.  Siaosi Aiono, the watch commander, ordered

PSO Sua`ava to conduct a routine search of Galumalemaga, including a search of

Galumalemaga’s shoes.  Inside the flap of

one shoe, PSO Sua`ava spotted what appeared to be three cigarettes of

marijuana.  Without giving Galumalemaga

the Miranda warnings, PSO Sua`ava asked him “What is this?” and

Galumalemaga replied, “Give me a chance.”


On December 11, 2000, Galumalemaga submitted a motion in

limine to suppress “any and all statements of any nature obtained from

defendant by government agents,” as well as a motion to suppress the contraband

marijuana seized by PSO Sua`ava on August 30, 2000.  We discuss our denial of these motions as



I.  Motion to Suppress Statement


Galumalemaga claims that his statement to PSO Sua`ava

was made while in custody, during an interrogation, without consultation with

known appointed counsel, and without adequate advisement of his rights.  Because he was not administered the Miranda

warnings, and did not have the opportunity to waive them, Galumalemaga argues

that the statement was illegally obtained in violation of his Fourth, Fifth or

Sixth Amendment Rights of the U.S. Constitution, as well as Article I, Sections

5 and 6 of the Revised Constitution of American Samoa, and therefore must be



[1] As well­ established by Miranda v. Arizona,

self-incriminating statements given by a suspect during custodial interrogation

without a prior warning are in violation of constitutionally protected rights,

and are subject to the exclusionary rule. 

See generally Miranda v. Arizona, 384 U.S. 436

(1966).  However, in order to trigger Miranda,

an individual must be in custody, and must be subject to official

interrogation.  A statement made by a

person who was not in a custodial situation is not subject to suppression on Miranda

grounds.  Am. Samoa Gov’t v. Fealofa`i,

24 A.S.R.2d 10, 11-12 (Trial Div. 1993). 

In Berkemer v. McCarty, the Court stated, “[f]idelity to the

doctrine announced in Miranda requires that it be enforced strictly, but only

in those types of situations in which the concerns that powered the decision

are implicated.”  468 U.S. 420, 437 (1984).  The first issue, then, is whether Galumalemaga

was subject to the sort of coercive conditions contemplated by Miranda.


Custodial interrogation has been taken to mean

“questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any

significant way.”  Miranda, 384

U.S. at 444.  The intent inspiring the Miranda

requirement is to protect individuals subjected to inquisition in a

“police-dominated atmosphere,” Miranda, 384 U.S. at 445, which is said

to generate “inherently compelling pressures which work to undermine the

individual’s will to resist and to compel him to speak where he would not

otherwise do so freely.”  Id. at



[2] Custodial interrogation is distinguishable from

on-the-scene questioning, which does not require Miranda warnings.  The Court stated that the required warnings

“[are] not intended to hamper the traditional function of police officers in

investigating crime.”  Miranda,

384 U.S. at 477-78.  It further clarified

that “[g]eneral on-the-scene questioning as to the facts surrounding a crime or

other general questioning of citizens in the fact-finding process is not

affected by our holding.”  Id.  In Lowe v. United States, the

Ninth Circuit reasoned that such questions, posed during the fact-finding

process, enable officers “to determine whether a crime has been committed or is

in progress.”  407 F.2d 1391, 1393-94

(9th Cir. 1969).



The general test for determining

whether custodial interrogation has occurred is whether a reasonable person would

have believed he could not leave freely. 

United States v. Kennedy, 573 F.2d 657, 660 (9th Cir. 1978). Such

a test has been held inapplicable in a prison setting, where prisoners may not,

by definition, leave freely, and where such a test would thus be tantamount to

a pragmatically untenable per se custody finding.  See United States v. Conley, 779 F.2d

970, 973 (4th Cir. 1985).  The Ninth

Circuit in Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978),

refined the dicta in the Supreme Court case of Oregon v. Mathiason, 429 U.S, 492, 495 (1977) (per

curiam)[1] to

create a standard for custody in prison situations according to the relative level

of “restriction” experienced by the prisoner. 

Specifically, it applied the same four factors cited for the “free to

leave” test used in United States v. Curtis, 568 F.2d 643, 646 (9th Cir.

1978), for determining situations which would require Miranda warnings:


[T]he language used to summon the individual, the

physical surroundings of the interrogation, the extent to which he is

confronted with evidence of his guilt, and the additional pressure exerted to

detain him must be considered to determine whether a reasonable person would

believe there had been a restriction of his freedom over and above that in his

prisoner setting.


Cervantes, 589 F.2d at 428 (emphasis added). 

The Fourth Circuit in Conley interpreted the restriction as a

relative concept that “necessarily implies a change in the surroundings of the

prisoner which results in an added imposition on his freedom of movement.”  Conley, 779 F.2d at 973 (citing Cervantes,

589 F.2d at 428).  The question, then, is

whether during the interrogation, the inmate “was subjected to more than the

usual restraint on a prisoner’s liberty to depart.”  Conley, 779 F.2d at 973.


[4] The Cervantes case concerned an on-scene

investigative situation very much resembling the current case before the Court.

A prisoner was being moved from one cell to another when his belongings were

searched and a small matchbox with a green odorless substance was found.  An officer asked him, “What’s this?” to which

the prisoner replied, “That’s grass, man.” 

The court held the statement admissible, ruling that in the prison

setting, on-the-scene investigative questioning does not reach the level of

restriction contemplated by the Miranda warnings.  The Ninth Circuit reasoned that requiring Miranda

warnings to every prison investigation could “totally disrupt prison

administration,” and would illogically provide more protection to a prisoner

than a non-prisoner in on-the-scene investigative matters.[2]  Cervantes, 589 F.2d at 427.  We agree with, and follow, this rule and its




In the current case, Galumalemaga was

returning on his own from an unsupervised work release program and had just

entered prison grounds.  He was subjected

to a routine search procedure that required his shoes to be taken off and

checked.  The officer saw the three

cigarettes in the shoe before spontaneously asking Galumalemaga what they

were.  Galumalemaga immediately answered

him.  These circumstances are a

straightforward example of the in-prison, on-the-scene questioning considered

by the Ninth Circuit.  Galumalemaga was

undergoing a routine search procedure; the search yielded questionable

artifacts; the officer queried him on-the-scene; Galumalemaga answered him

subject to none of the threats, deceptions, or intimidations that tend to

complicate Miranda custody questions. 

We find no evidence of the coercive, police-dominated setting

contemplated by the Miranda decision, nor any basis for inferring

one.  Even though Galumalemaga was in the

process of transitioning from the relative independence of work release to the

prison setting, at the time of his search, he was already in the Correctional

Facility, on which premises at least he is considered a full-fledged prison

inmate.  We conclude that Galumalemaga’s

constitutional right against self-incrimination has not been violated and hold

that statements to PSO Sua`ava are admissible.


II.  Motion to Suppress Physical Evidence


Galumalemaga argues that the contraband discovered in

his shoe during the August 30, 2000, search by PSO Sua`ava should be suppressed

because it was carried out in violation of his constitutional rights.


The first issue is whether Galumalemaga, an inmate

returning to the prison from work release, had a Fourth Amendment right against

unreasonable searches and seizures, as expressed in Article I, Section 5, of

the Revised Constitution of American Samoa. 

This assures the “right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and seizures.”  See Mapp v. Ohio, 367 U.S. 643,

656 (1961); Am. Samoa Gov’t v. Afamasaga, 17 A.S.R. 145, 148 (Trial Div.

1990).  Prisoners are guaranteed this

right against unreasonable searches and seizures “at least to some minimal

extent.”  Bonner v. Coughlin, 517

F.2d 1311, 1317 (7th Cir. 1975).[3]  However, this right has been limited for


primarily as a “practical matter, to accommodate a myriad of ‘institutional

needs and objectives’ of prison facilities, . . . chief among which is internal

security.”  Hudson, 468 U.S. at

524 n.4.



The existence of a Fourth Amendment

right is determined by whether the person claiming it has a “justifiable,” or

“reasonable,” or a “legitimate expectation” of privacy with respect to the

place searched and/or the item seized, as measured by his or her subjective

expectation.  Hudson, 468 U.S. at

525; Smith v. Maryland, 442 U.S. 735, 740 (1979); Rakas v. Illinois,

439 U.S. 128, 137-38 (1978); Katz v. United States, 389 U.S. 347, 353

(1967).  This standard is limited by what

“society is prepared to recognize as ‘reasonable.’”  Hudson, 468 U.S. at 525 (citing Katz,

389 U.S. at 360, 361 (Harlan, J., concurring)).  The reasonable expectation standard is thus

clearly restricted when the individual asserting the expectation is

incarcerated or in custody.  United

States v. Savage, 482 F.2d

1371, 1372-73 (9th Cir. 1973) (applying Katz). In a prison setting, the

test of reasonableness requires a balancing test between the need for the

search against the invasion of personal rights that the search entails.  Bell v. Wolfish, 441 U.S. 520, 559




PSO Sua`ava has testified that prison

procedures required him to check all inmates returning to the prison in a

routine manner for drugs, weapons, or tools that might be used to escape.  Such a policy is obviously necessary and

reasonable, given the pragmatic concerns of prison security.  The evidence indicates that Galumalemaga was

returning from work release, where he was unsupervised and in constant contact

with unincarcerated persons.[5]  Galumalemaga had every reason to expect that

his shoe would be searched, not only because he was returning from work release

to the highly supervised life of the prison, but also because such searches

were routine procedure, routinely performed. 

Further, the search entailed no threat, nor intimidation, nor body

cavity exposure, but merely a patdown and peering into Galumalemaga’s shoe, and

posed a minimal degree of intrusion upon his privacy.  Therefore, we conclude that, as an inmate

returning from work release, Galumalemaga has no reasonable expectation of

privacy, and therefore no Section 5 right, regarding routine pat-down and shoe

search procedures.[6]


Galumalemaga’s constitutional rights under Article I,

Sections 5 and 6, of the Revised Constitution of American Samoa were not violated

by PSO Sua`ava’s search and questioning on August 30, 2000.  The motions to suppress defendant’s statement

and the evidence obtained during the search are, therefore, denied.


It is so ordered.





In Mathiason, the Supreme Court held that a suspect who

voluntarily comes to a police station is not “in custody” for Miranda purposes.  The Court recognized that some coercive

element inevitably arises in any interview with police officers, which are

“part of a law enforcement system which may ultimately cause the suspect to be

charged with a crime.”  The line between

custodial and non-custodial situations cannot, therefore, depend on the mere

presence of police officers in a confined setting, but rather on the “totality

of circumstances” involved.  California

v. Beheler, 463 U.S. 1121, 1125 (1983), further cited Mathiason, in

its formulation of the test for custody in technically noncustodial situations:

“the ultimate inquiry is simply whether there is a ‘formal arrest or restraint

on freedom of movement’ of the degree associated with a formal arrest.”


The Ninth Circuit distinguished its ruling from that of the Supreme

Court in Mathis v. United States, 391 U.S. 1 (1968).  In Mathis, the Supreme Court ruled

that evidence obtained from a prisoner during a routine tax investigation was

illegal because the Internal Revenue agent had not administered the Miranda

rights.  The Ninth Circuit pointed to the

difference between the tax investigation and on-the-scene questioning, as well

as to the pragmatic implications for prison administration of requiring

warnings before any and all types of questioning.


The Supreme Court in Hudson v. Palmer, 468 U.S. 517, 523 (1984),

clearly states that “prisoners be accorded those rights not fundamentally

inconsistent with imprisonment itself or incompatible with the objectives of



As reasoned in Lanza v. New York, 370 U.S. 139 (1962)

(citations omitted), and cited in United States v. Dawson, 516 F.2d 796,

805 (6th Cir. 1975):

[T]o say that a public jail is

the equivalent of a man’s “house” or that it is a place where he can claim

constitutional immunity from search or seizure of his person, his papers, or

his effects, is at best a novel argument . . . . [W]ithout attempting either to

define or to predict the ultimate scope of Fourth Amendment protection, it is

obvious that a jail shares none of the attributes of privacy of a home,

automobile, an office, or a hotel room. 

In prison, official surveillance has traditionally been the order of the


See also Palmigiano v. Travisono, 317 F.Supp. 776 (D.R.I. 1970).


The Supreme Court stated: “Prisons, by definition, are places of

involuntary confinement of persons who have a demonstrated proclivity for anti-social

criminal, and often violent, conduct. 

Inmates have necessarily shown a lapse in ability to control and conform

their behavior to the legitimate standards of society by the normal impulses of

self-restraint; they have shown an inability to regulate their conduct in a way

that reflects either a respect for law or an appreciation of the rights of

others. . . . Within this volatile ‘community,’ prison administrators are to

take all necessary steps to ensure the safety of not only the prison staffs and

administrative personnel, but also visitors. 

They are under an obligation to take reasonable measures to guarantee

the safety of the inmates themselves. They must be ever alert to attempts to

introduce drugs and other contraband into the premises which, we can judicially

notice, is one of the most perplexing problems of prisons today; they must

prevent, so far as possible, the flow of illicit weapons into the prison.”  Hudson, 468 U.S. at 526-27.


Relevant caselaw has variously held that bodily searches held incident

to routine prison security procedures are not violative of the Fourth Amendment

rights of inmates.  In Daughtery v.

Harris, 476 F.2d 292 (10th Cir.), the court held that the procedure

requiring rectal searches on release from court appearance are not violative of

the Fourth Amendment rights of inmates even in absence of a showing of special

cause justifying such searches, given necessary and reasonable nature of the

requirement in a maximum security institution, and given that the search was

performed by trained medical assistants. 

In Bell v. Wolfish, 441 U.S. 520, 558 (1979), it was held that

the practice of visual body-cavity searches of pretrial detainees following

contact visits were neither unreasonable nor unconstitutional, and could be

conducted on less than probable cause. 

Finally, in United States v. Dawson, it was held that a prisoner

has no reasonable expectation of privacy in his jail cell.  516 F.2d 796, 805 (9th Cir. 1975) (using the

test in Katz v. United States, 389 U.S. 347 at 361 (1967)).  All of these cases depended, more or less, on

the practical circumstances of insuring the safety and confinement of the

prison environment.