A judge at the Court of Common Pleas in Koror has ruled that a Police sobriety checkpoint “violated defendant’s rights under the search and seizure provision of the Constitution”.

The ruling by Senior Judge Honora Remengesau Rudimch comes after a hearing earlier this month where public prosecutors from the Attorney General’s Office admitted that there are no written guidelines governing how police are to conduct a traffic checkpoint stop.

The judge’s ruling came after chief public defender Danail Mizinov, who is acting as defence counsel for a man accused of driving under the influence of alcohol, had raised constitutional arguments regarding the traffic stop that had landed the man in legal trouble: Older Palauan man Ezra Nakamura had been stopped on March 8th this year by police near Palau Community College parking lot. Nakamura had been stopped as part of a routine sobriety-test traffic stop, rather than being stopped as the result of any specific suspicions officers had about his driving style. After Mr Nakamura was stopped at the traffic checkpoint, it was alleged that an open alcohol container was seen by officers in Mr Nakamura’s motor vehicle. It was further alleged that when a sobriety test was conducted, Mr Nakamura failed this test. “He stumbled, wobbled and needed support. He was unable to walk on a straight line and could not maintain his balance or touch the tip of his nose”, it was alleged.  However, Mr Nakamura maintained his innocence, noting that he does not drink.

Summarising the arguments made by Nakamura’s defence counsel, the judge had stated “the question then in this case is whether a stop pursuant to a suspicion-less check-point rather than a traffic stop requiring probable cause is considered an unreasonable seizure which is prohibited”.

In her ruling, the Judge had suggested that because there is a lack of relevant prior case law in Palau regarding this question, the court should consider US legal precedent.

Following the opinion of the US Supreme Court in the 1990 case of Michigan Dept. Of State Police Vs. Sitz, the judge made clear that the concept of suspicion-less traffic checkpoints per se could be deemed to be constitutional if it is shown to reasonably advance the state’s interest in preventing drink-driving while only intruding minimally upon motorists. Drunk driving, the judge highlighted, is, after all, a serious problem: “It affected lives and causes significant amounts of property damage. In addition, the court need only look at its criminal docket to see the magnitude of the problem as reflected in the number of DUI cases regularly filed”.

The judge suggested that to determine whether the checkpoint stop carried out in Koror was constitutional not just in theory but in practice, the court needs to understand and evaluate how specifically such checkpoint stops are conducted in Palau. “… The Court needs to know what sort of system is place. Is there a formal protocol in place? If so, are all relevant officers trained on the protocol? The Court also needs to know how effective the system is in advancing the Republic’s interest. In other words, how many motorists are usually stopped and how many are arrested for DUI? Finally, the Court needs to know the degree of intrusion on the motorists – what is the duration of the check-points? What is the average delay for each motorist?”

However, in the absence of written guidelines laying out the standard operating procedures for conducting traffic stops, the judge was unable to see how these checkpoint stops could be shown to conform to constitutional requirements.  “Unfortunately, in this case, the only significant facts presented to the Court that both counsels do not dispute are: That public announcements were provided to the public through radio, television and newspapers that sobriety check points would be established at various locations throughout the Republic; and that there were no formal written guidelines for checkpoint operations. Rather, checkpoint procedures were communicated orally and may not necessarily have been uniformly practiced. The Court finds this troublesome. Because we are dealing with the Constitutional right of individuals to be free from unreasonable search and seizure, as valid and important as the Republic’s interest in preventing driving under the influence is, without any formal protocols that are uniformly practised to assure the intrusion is indeed minimal, the Court cannot find the check point was a reasonable seizure.”

“Accordingly”, the judge concluded, “the sobriety checkpoint, as executed on March 08, 2018, violated defendant’s right under the search and seizure provision of the Constitution. “

As a result of the judge’s ruling, any evidence gained as a result of the unconstitutional traffic checkpoint stop against Mr Ezra Nakamura will not be admissible as evidence in the court case against him.

While the judge’s ruling does not automatically dismiss the case against Nakamura, it is thought unlikely that there would be sufficient evidence for the case to proceed now that the evidence gained as the result of the traffic stop has been found to be inadmissible in court. (Colin C. Cortbus)