Judge Sunia dismisses drug case, cites violation of constitutional rights

ausage@samoanews.com

District Court Judge, Fiti Sunia has dismissed the latest drug case against a man from Pago Pago after the court was unable to find probable cause and sufficient evidence to bind the case over to High Court for arraignment.

Sio Godinet Jr. was in custody since his arrest on Tuesday, Sept. 5th - unable to post a $2,000 surety bond.

He was released this past Monday afternoon following a preliminary examination hearing.

Godinet was charged with one count of unlawful possession of a controlled substance, methamphetamine - a felony - punishable by not less than 5 years in jail, and/or a fine of not less than $5,000 or both.

The charge stems from an incident earlier this month, when police allegedly found a glass pipe behind the driver’s seat of Godinet’s vehicle.

One of the essential issues Sunia pointed to when he delivered his decision was the court's concern on how police officers are handling these types of cases which, in his view, seem to violate the constitutional protection of citizens from unreasonable searches and seizures.

Sunia said the court has a responsibility to review all the facts presented by the government and consider them very carefully, before making a decision - whether there is probable cause and sufficient evidence to move forward with it.

During Monday's nearly 2-hour long PX hearing, DPS officer Alwin Sorensen, who was the lead investigator, and Det. John Seumanutafa were the two witnesses called to the stand by prosecutor, Assistant Attorney General Christy Dunn.

Sorensen, in his testimony, said that during a routine traffic patrol by the Vice & Narcotics Unit, Godinet's vehicle was pulled over for an improper license plate light on the rear of the vehicle.

Three police units, six police officers, and a canine were present when Godinet's car was pulled over. Head of the Vice & Narcotics Unit, Capt. Lima Togia, approached the defendant and explained to him why police pulled him over.

After a brief conversation between the two men, Godinet was asked to step outside of the vehicle.

When Dunn asked why Godinet was asked to step outside of the vehicle, Sorenson said it is a normal safety issue procedure for police.

Judge Sunia intervened and asked the witness to explain to the court, what he meant by “safety reason”, and why Godinet was asked to step outside the vehicle.

Sorensen paused for almost 15 seconds before responding. He said "safety reason" is applied in order to prevent the driver from being attacked by the canine, and that's why Godinet was asked to step outside the vehicle.

Sunia wanted to know whether the canine that was used during the search of Godinet’s vehicle is trained to attack drivers when they are pulled over by police.

Sorensen responded "no", and said that while he is not a certified K-9 handler, he believes that everytime the Vice & Narcotics Unit conducts routine traffic stops, they always follow procedure, and one of them involves the safety of drivers.

 Dunn asked the witness to explain to the court the time frame between the defendant’s vehicle being pulled over and when the canine arrived to conduct the search. She also asked the witness to clarify if the K-9 search was conducted after the traffic stop or was it a part of the stop.

Sorensen said the K-9 search was part of the traffic stop, adding that while he was writing the traffic citation for Godinet, the canine was carrying out a search of the vehicle.

And when the drug sniffing dog alerted to the side of the driver’s door, police officers conducted a search of their own, during which they allegedly found a glass pipe commonly used to smoke methamphetamine, inside the pocket behind the driver’s seat.

Inside the glass pipe, police found a white substance, which was tested by Det. John Paselio.

According to Sorensen, the field test netted positive results for methamphetamine ingredients. Two passengers were inside the vehicle, and they were both asked to step outside.

The defendant and the two passengers were all escorted to the police station for further questioning. The vehicle was also taken into police custody.

Det. Seumanutafa, in his testimony, told the court that both he and the K-9 dog, Marco, received training off-island on how to identify different types of illegal substances during a search.

Dunn asked the witness to explain to the court the reason why the driver was asked to step outside of the vehicle.

Det. Seumanutafa said it is a normal procedure by police to ask the driver to step outside of the vehicle, for safety reasons. He elaborated that the driver needed to be protected from the canine.

Sunia intervened and asked Det. Seumanutafa if Marco is trained to attack people, and the witness responded "yes", adding that not only is Marco trained to detect different types of illegal substances, she is also trained to chase down people who run away from police.

During cross-examination, defense attorney Assistant Public Defender Kate Hannaher asked Sorensen why there were three police units with several police officers and a K-9 unit present, when her client’s vehicle was pulled over. She also wanted to know if the traffic stop was mainly for a traffic violation.

Sorensen said Godinet’s vehicle was pulled over was because of a traffic violation, and he assured the court that Godinet wasn't pulled over because of any suspicions relating to drugs.

Hannaher said she believes the main reason for the traffic stop was to search for drugs, and not because of a traffic violation. She said the use of a K-9 dog in a traffic stop is to search for drugs, and that's what the Vice & Narcotics Unit did to her client.

During her final submission, Dunn argued that the main reason why the defendant’s vehicle was pulled over by police was because he violated traffic laws. And when his vehicle was stopped, Marco detected a strong smell of illegal substances coming from his vehicle, which led police to search and allegedly find a glass pipe with a white substance inside.

Hannaher on the other hand told the court that the main reason why her client’s vehicle was stopped was because they suspected he was dealing drugs. She said the only reason why police used the K-9 dog during the traffic stop was to search for drugs.

Judge Sunia pointed out that the hearing is to determine if there is sufficient evidence and if there is probable cause to try the defendant in court. After reviewing all the facts of the case, Sunia said the court believes the reason for the traffic stop was to look for drugs - and because of that motive, police violated the rights of a citizen protected under the Constitution.

“This case was an organized search. This was a search,” said Sunia, with a loud voice when he delivered his decision. He said that without the search, Godinet’s vehicle would never have been stopped by police, and that's the reason why the case is being dismissed.

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