A ruling by the Trial Division to suppress evidence in the case of ASG vs Mark Atafua has been overturned by the Appellate Division of the High Court. A 12-page ruling dated August 12 ordered that the Trial Division’s order for suppression be vacated and the criminal case against Atafua be remanded for further proceedings.
On October 14, 2024 three packages which Atafua had sent from California and addressed to a company he owns, AMA Technology, arrived on the weekly cargo flight.
The cargo was transported to the Fax Cargo Services warehouse on the airport premises for sorting and for an initial Customs inspection.
After the initial inspection, Customs released Atafua’s packages to designated freight forwarder, Island Cargo Support (ICS) to hold for a subsequent inspection.
On the morning of October 15, 2024, Customs inspected Atafua’s boxes at Island Cargo Support. One carried a speaker, another a printer, and the other an armed chair.
During the inspection, Customs officer David McMoore observed that the packages appeared heavier than their listed weight of 27 kilograms each.
Because of this discrepancy, McMoore removed the packages to the Customs Office at the airport for further inspection.
McMoore explained that he wanted to scan the packages with a scanner known as the 627 Rapiscan located at the Customs Airport office. When McMoore and two other agents scanned the printer package, a green cloud-like image or green hue appeared from the area of the printer’s paper tray.
On October 16, an ICS agent observed officer McMoore open the printer box at the Customs Office at the airport. Inside were six sealed bags that contained a crystalline substance. The bags were turned over to the Department of Public Safety and on the basis of this contraband, the government charged Atafua with possession of a controlled substance, methamphetamine, possession of a controlled substance with intent to distribute, and importation of a controlled substance, methamphetamine.
Atafua moved to suppress evidence of the contraband arguing that Customs’ did not have a warrant to search his packages, and this violated his constitutional right against an unreasonable search.
The Trial Division found the initial inspection on October 14 and re-inspection on October 15 were constitutionally permissible border searches. However it concluded that the inspection on October 16, where Customs opened the printer box, was unlawful. The Trial Court then ordered the suppression of the sealed bags of crystalline substances found in the printer.
The government appealed the suppression order and the Trial Division stayed the order pending the appeal.
In its ruling of August 12, the Appellate Court said the territory’s Constitution expressly sanctions the enactment of legislation necessary, “to protect persons of Samoan ancestry against alienation of their lands and the destruction of the Samoan way of life and language, contrary to their best interest. Border inspections are the territory’s only line of defense against persons and property seeking entry. And the territory’s geography and resources make holding that line an even greater priority. The increasing number of criminal prosecutions involving controlled substances attests to the criticalness of protecting the territory’s borders. Thus, unless otherwise specified by statute, routine border searches conducted by Customs officers pursuant to statutory authority are reasonable when conducted at the border or a functional equivalent of the border, without requirement of reasonable suspicion, probable cause or a warrant. Non routine border searchers. i.e. highly intrusive or destructive, require reasonable suspicion to administer”.
The Appellate Court held that all searches performed by Customs officers on the printer package took place at either the border or its functional equivalent. Additionally all searches of the printer package proceeded in accordance with Customs regulated routine for inspecting airfreight cargo including re-inspection which statute (A.S.C.A § 27.1003 (c) specifically permits.
“On the record before us we hold that the October 16 search was a routine border search. As such it was reasonable by virtue of being conducted at the border, and therefore did not offend Article 1, Section 5. For the foregoing reasons, we vacate the Trial Division’s order of suppression and remand this matter for further proceedings”
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The ruling was signed by Chief Justice Michaël Kruse, Associate Justice Fiti Sunia, Acting Associate Justice Jon Clemens Chief Associate Judge Mamea Sala Jr., and Associate Judge Muasau Tofili.
Assistant Attorney General Marcellus Talaimalo Uigalelei represented ASG and Atafua was represented by Assistant Public Defender Stanislaw Krawieski.
