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Motion accuses DPS of the illegal recovery of an individual

reporters@samoanews.com

 A fisherman, Petelo Patu, has filed a motion to quash an arrest warrant issued by the District Court noting the lack of jurisdiction by police officers to go on board a foreign-flagged vessel, saying the government had no jurisdiction to board the vessel or arrest the defendant.

The defendant was arrested by police on allegations of a public peace disturbance last month. The quash motion filed by Patu’s lawyer, Mark Ude, noted that the police officers had arrested Patu for allegedly committing a misdemeanor, and yet the officers had not witnessed what allegedly occurred.

However, an hour after the alleged incident, the police went on board a  Cook Islands-flagged vessel, the F/V “Viking Spirit” which was moored at the dock. 

Ude noted that the police affidavit for the Arrest Warrant did not specify what, exactly, the Defendant had done, or when.

According to the motion, the statement “only lists the Defendant’s name and nothing more that ties him to having allegedly committed a crime in the Territory of American Samoa."

Ude noted that the police officers did not have the requisite permission of either the owner or the Captain, and they boarded the vessel without proper authorization and without a warrant. (It should be noted that the warrant was issued after the defendant’s arrest for public peace disturbance.)

Ude added that only the Office of Customs would have the authority to go on board a foreign-flagged vessel without permission. He quoted Title 19 U.S.C. 1581(a)  which authorizes customs officers “to board any vessel at any time and at any place in the United States to examine the Vessel’s manifest and other documents”.  

“Any customs officer may at any time go on board any vessel at any place in American Samoa or within the customs water and examine the manifest and other documents and papers, and examine, inspect, and search the vessel and every part thereof  and any person, trunk, package, or cargo on board.”

For this purpose, he may hail and stop such vessel and use all necessary force to compel compliance, says the U.S.C. provision.

Ude in his motion explained that in accordance with the American Samoa Code Annotated, the Territory of American Samoa also states that only Customs Officers have the authority to board vessels without a warrant, and are allowed to do so by statute.

He further explained that if criminal acts are suspected, only the United States Coast Guard has the authority to board and arrest foreign nationals suspected of having engaged in misdemeanors within the jurisdiction of  the Territory of American Samoa.

He said “14 U.S.C. § 2 establishes the Coast Guard as the primary maritime agency charged with the enforcement of federal law at sea and sets forth the primary duties of the Coast Guard. It provides in part: The Coast Guard shall enforce or assist in the enforcement of all applicable Federal laws on and under the high seas and waters subject to the jurisdiction of the United States."

According to the quash motion, the United States Coast Guard was not notified, and should have been, as the Coast Guard has criminal jurisdiction over Customs waters. 

“Instead, the Department of Public Safety engaged in Rendition, the illegal recovery of an individual that was nothing short of kidnapping”.

Ude explained the defendant believes the Fourth Amendment protects his person from illegal arrest without due process.

“The expectation of privacy is extended even to passengers of a bus and therefore an expectation of privacy should also extend to a crew member aboard a foreign-flagged vessel." he notes.

Ude said that what is before this District Court is a warrantless arrest and search, neither of which is allowed under the Fourth Amendment of the Constitution of the United States.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Ude explained that there was no basis for the Police to act in the way they did, “as it was a clear violation of the Defendant’s Fourth Amendment Rights, as he was and should continue to have been secure aboard a foreign-flagged vessel."

The quash motion says no reasonable grounds existed that the Defendant had committed or was committing a felony.  Ude said the police without justification boarded a foreign-flagged vessel which, at the time, served as Defendant’s home, and arrested him for an alleged misdemeanor while he was cooking a meal in the Galley. 

“The lack of the Department of Public Safety’s proper jurisdiction to do so, and its failure to involve the agencies who could, both local and federal, should justify the quashing of the Arrest Warrant.”



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