THE SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA
Cite as Ludwig v. FSM, 2 FSM Intrm. 27 (App. 1985)

[2 FSM Intrm. 27]

TEKIS LUDWIG,
Appellant,

vs.

FEDERATED STATES OF MICRONESIA,
Appellee.

APPEAL T1-1983
(From FSM v. Ludwig, Crim. No. 1983-1508,
Benson, J., Decided August 17, 1983)

Decided April 10, 1985
Argued December 21, 1984

BEFORE:
     Hon. Edward C. King, Chief Justice, FSM Supreme Court;
     Hon. Mamoru Nakamura, Chief Justice, Republic of Palau Supreme
          Court;*
     Hon. Herbert D. Soll, Judge, Commonwealth Trial Court, Northern
          Mariana Islands*

          *Designated Temporary Justices for the FSM Supreme Court

APPEARANCES:
     For the Appellant:               Michael K. Powell
                                                   Public Defender
                                                   Office of the Public Defender
                                                   Moen, Truk 96942

     For the Appellee:               Carl V. Ullman
                                                  Chief, Division of Litigation
                                                  Office of the Attorney General
                                                  Federated States of Micronesia
                                                  Kolonia, Pohnpei 96941

[2 FSM Intrm. 28]

HEADNOTES
Constitutional Law-search and seizure
Criminal Law and Procedure-search and seizure
Criminal Law and Procedure-arrest
     A constitutional search may be conducted without a warrant if the search is incidental to a lawful arrest.  Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App. 1985).

Constitutional Law-search and seizure
Criminal Law and Procedure-search and seizure
     The standard announced in the second sentence of FSM Const., art. IV, 5 for issuance of a warrant must be employed in determining the reasonableness of a search or seizure.  Imposition  of a standard of probable cause for issuance of a warrant in FSM Const. art. IV, 5 implies that no search or seizure may be considered reasonable unless justified by probable cause.  Ludwig v. FSM, 2 FSM Intrm. 27, 32 (App. 1985).

Criminal Law and Procedure-arrest
     Suspicion of guilt can justify the extreme action of an arrest only when based upon reasonable grounds known to the arresting, officer at the time of arrest so strong that a cautious man would "believe," that is, consider it more likely than not that the accused is guilty of the offense.  Ludwig v. FSM, 2 FSM Intrm. 27, 33 (App. 1985).

Intoxication; Evidence
     It is generally recognized by courts that nonmedical persons may be capable of recognizing when someone is intoxicated.  Ludwig v. FSM, 2 FSM Intrm. 27, 33 n.3 (App. 1985).

Criminal Law and Procedure-intoxication
Intoxication
     Mere observation by a police officer of a person conducting himself in a manner generally  associated with intoxication could be "reasonable grounds" for a cautious person to consider it more likely than not that the person has been consuming alcohol.  This of course would not depend upon the opportunity to observe actions and mannerisms usually associated with intoxication.Ludwig v. FSM, 2 FSM Intrm. 27, 33 n.3 (App. 1985).

Constitutional Law-search and seizure
Criminal Law and Procedure-search and seizure
Criminal Law and Procedure-arrest
     A police officer making an arrest has a limited right to conduct a search incident to that arrest. This right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence.  Although the right to search is of limited scope, it plainly authorizes a reasonable search of the person being arrested.Ludwig v. FSM, 2 FSM Intrm. 27, 34 (App. 1985).

Criminal Law and Procedure-firearms
Criminal Law and Procedure-standard of proof
Statutes
     A gun with a defective trigger is a firearm under 11 F.S.M.C. 1204(4).  The statute's purpose may not be evaded by such simple expedients as dismantling the weapon, maintaining weapons

[2 FSM Intrm. 29]

and ammunition in separate places, removing one easily replaceable part, or other similar ploys. Under the statute, current operability is not an essential element of the crime of possession of a firearm.  Ludwig v. FSM, 2 FSM Intrm. 27, 34 (App. 1985).

Criminal Law and Procedure-due process
Criminal Law and Procedure-standard of proof
Constitutional Law-due process
     The government in any criminal case is required, as a matter of due process, to prove all elements  of the offense beyond a reasonable doubt.  Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985).

Constitutional Law-due process
     The Due Process Clause, Article IV, 3 of the FSM Constitution, is based upon the Due Process Clause of the United States Constitution and courts can look to interpretations under the United States Constitution for guidance.  Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985).

Criminal Law and Procedure-defense
Criminal Law and Procedure-standard of proof
Statutes
     Statutes which provided defense in the form of exceptions to a general proscription do not reduce or remove the government's traditional burden of proving beyond a reasonable doubt every fact necessary to constitute the offense.  Ludwig v. FSM, 2 FSM Intrm. 27, 35 (App. 1985).

Criminal Law and Procedure-defense; Statutes
     The government ultimately bears the burden of disproving the applicability of a statutory exception when it is properly presented as a defense.  Ludwig v. FSM, 2 FSM 27, 35 (App. 1985).

Criminal Law and Procedure-defenses
Criminal Law and Procedure-firearms
Statutes
     Some exceptions under 11 F.S.M.C. 1203 whereunder possession of a firearm is permissible relate to considerations separate from the essential elements of the crime and require the defendant to place them in issue.  A defendant claiming exemption as a law enforcement officer or United States military person engaged in official duty, 1203(1) and (4), or as a designated crocodile hunter, 1203(5), is not disputing any element of the government's basic case.  Instead, these exemption claims bring into play new facts, uniquely within the knowledge of the defendant, which the government could overlook by focusing on whether the conduct prohibited by the Weapons Control Act has occurred.  The defendant is in a far better position to place these exemptions in issue and it is fair to require that he do so.  Ludwig v. FSM, 2 FSM Intrm. 27, 36 (App. 1985).

[2 FSM Intrm. 30]

Criminal Law and Procedure-defenses
Criminal Law and Procedure-firearms
Statutes
     The 11 F.S.M.C. 1203(1), (4) and (5) exemptions whereunder possession of a firearm is permissible are defenses within the meaning of 11 F.S.M.C. 107, although they are not affirmative defenses for they are not so designated.  The ultimate burden of persuasion remains with the government, but the defendant has the burden of going forward with sufficient evidence to raise these exemptions as issues.  Ludwig v. FSM, 2 FSM Intrm. 27, 36 (App. 1985).

Criminal Law and Procedure-defense
Criminal Law and Procedure-firearms
Statutes
     The 11 F.S.M.C. 1203(2) exemption for curios, ornaments and historical pieces whereunder possession of a firearm is permissible requires findings that the firearm be in "unserviceable condition" and "incapable of being fired or discharged." Ludwig v. FSM, 2 FSM Intrm. 27, 37 (App. 1985).

Criminal Law and Procedure-firearms
Statutes
     While proof of current operability is not essential to a finding of guilt for illegal possession of a firearm, the design and the capacity of the instrument to fire are at the very heart of the Weapons Control Act's definition of a firearm. To prove its case, the government must show that the device "is designed or may be converted to expel ... projectiles."  Ludwig v. FSM, 2 FSM Intrm. 27, 37 (App. 1985).

Criminal Law and Procedure-firearms
Statutes
     Although not always essential, current operability of a firearm should be shown by the government, where possible, as standard procedure.  Ludwig v. FSM, 2 FSM Intrm. 27, 37 (App. 1985).

Criminal Law and Procedure-firearms
Statutes
     Inapplicability of the 11 F.S.M.C. 1203(2) exemption whereunder possession of a firearm is permissible because it is in unserviceable condition, is incapable of being fired or discharged and is being kept as a curio, ornament or historical piece is an essential element of the government's case in prosecution for unlawful possession of a firearm under 11 F.S.M.C. 1202.  Ludwig v. FSM, 2 FSM Intrm. 27, 37 (App. 1985).

Criminal Law and Procedure-firearms
Statutes
     A trial court may not simply presume that a person who possesses a firearm is not keeping it as a curio, ornament or for historical significance. This would be an irrational or arbitrary, hence unconstitutional, presumption or inference because one can not determine from

[2 FSM Intrm. 31]

mere possession of a firearm alone the purpose or nature of that possession.  Ludwig v. FSM, 2 FSM Intrm. 27, 37 (App. 1985)

Criminal Law and Procedure-firearms Statutes
     The 11 F.S.M.C. 1203(2) exemption whereunder possession of a firearm is permissible applies only if the firearm is:  (1)  unserviceable; (2) incapable of being fired or discharged; and (3) being kept as a curio, ornament or for its historical significance.  Ludwig v. FSM, 2 FSM Intrm. 27, 37-38 (App. 1985).
*        *        *        *

COURT'S OPINION
EDWARD C. KING, Chief Justice,
     Defendant Tekis Ludwig appeals from his conviction of illegal possession of a firearm, a violation of 11 F.S.M.C. 1202. 1  He argues that the weapon was illegally seized from him and should not have been admitted as evidence.  He also maintains that the trial court applied improper standards of proof.

     For the reasons discussed here, we reject these contentions and the conviction is affirmed.

Factual Background
     Early in the morning of February 3, 1983, approximately at 1:30 a.m., two Moen Municipality police officers at the Mwan Police Station heard three noises which sounded like gunshots.  The officers, Johnny Robert and Diem Mailo, went outside to investigate in the direction from which they thought the shots had been fired.  As they proceeded, they spoke to various persons who also had heard what they thought were shots.  These persons directed the officers toward a men's house where they said some people had been sleeping. 2

     As the officers neared the men's house they saw one man, followed by another, approaching. The first appeared somewhat wobbly and had something black tied to his hand, or the end of his arm.  Officer Robert hid behind a tree and grabbed the first man as he passed the tree.  When he did so, he found that the black object was a cloth wrapping containing a gun.

[2 FSM Intrm. 32]

     The officers then arrested the person, Tekis Ludwig, who is the defendant and appellant in this case.  The gun, which had bullets in it, was seized and is the object of this prosecution for wrongful possession of a firearm.

Legal Analysis
A.     Search and Seizure - Ludwig contends that"seizure of the weapon without a warrant violated his protection against unreasonable search and seizure.  He concedes that a constitutional search may be conducted without a warrant if the search is incidental to a lawful arrest.  SCREP No. 23, II J. of Micro. Con. Con. 794. However, the arrest here was not lawful, he insists, because the arresting officers did not have a sufficient basis to believe he had committed a crime before they seized him.

     The constitutional provision concerning the right of a person to be free from physical seizure or arrest by police officers is Article IV, 5:

The right of the people to be secure in their persons, houses, papers, and other  possessions against unreasonable search, seizure, or invasion of privacy may not be violated. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

     In addition to the general prohibition against "unreasonable" seizure in the first sentence, this language furnishes guidance by demonstrating that the standard announced in the second sentence of the section for issuance of a warrant must be employed in determining the reasonableness of a search or seizure.  Imposition of a standard of probable cause for issuance of a warrant implies that no search or seizure may be considered reasonable unless justified by probable cause.  If a search could be reasonable with less than probable cause, the probable cause standards for warrants would be rendered useless since most, if not all,  searches and seizures would be conducted without a warrant.

     The Constitutional Convention's Committee on Civil Liberties, which proposed the provisions now constituting the Declaration of Rights, confirmed this interpretation by providing in its report what amounts to an explanation of the term "probable cause" in describing when a lawful arrest may be accomplished without a warrant.  The Committee said such an arrest may occur if the officers have "a reasonable ground for suspicion, sufficiently strong to warrant a cautious man to believe that the accused is guilty of the offense." II J. of Micro. Con. Con. 794.

     Under this language, it is not sufficient to have reasonable grounds for mere suspicion of guilt. Yet the officer need not be persuaded of guilt beyond a reasonable doubt. Instead, suspicion and belief are interwoven to balance the facts that: (1) police officers must often act quickly in settings

[2 FSM Intrm. 33]

where certainty is elusive; and (2) citizens are constitutionally entitled to protection against hasty, arbitrary or abusive police action.  Thus, suspicions can justify the extreme action of an arrest only when based upon reasonable grounds so strong that a cautious man would "believe," that is, consider it more likely than not, that the accused is guilty of the offense.  Because these standards are designed to test the legality of the arrest, the "reasonable grounds" must be known to the arresting officer at the time of arrest.  An officer may not subsequently justify a warrantless arrest by pointing to confirmation obtained while making the arrest, or thereafter.

     Armed with these principles we move to the facts at hand.  The officers did not testify in much detail about Ludwig's conduct, merely that he was "staggering" and "acting drunk."3

     There was other evidence though in addition to those rather hazily outlined symptoms.  For one thing, the officers spotted Ludwig at about 1:30 a.m., a time when most people are asleep and when there is a much higher probability than at most times of the day, that those walking about with staggered gait have been consuming alcohol.

     The strange appendage at the end of Ludwig's arm was an additional ground for consideration by the officers in deciding whether it was more likely than not that Ludwig had been consuming alcohol. This was unusual behavior which, combined with the fact that the man was staggering around at 1:30 a.m., furnished reasonable grounds for a cautious person to believe it was more likely than not that Ludwig had been consuming alcohol.

     Ludwig asserts that even if the above information would have been sufficient to justify a belief that he had consumed alcohol, there nevertheless remained the possibility that he consumed it legally, off of Moen Island.  We do not find that possibility sufficiently plausible to warrant discussion here, or careful consideration by the arresting officers.

     Ludwig also suggests that the real reason why the officers grabbed him was because he "had that black thing attached to his arm that was covering something else." App. Br. 10. While the testimony of the officers indicated

[2 FSM Intrm. 34]

their concern that the "black thing" may have been the source of the gunshots they had heard and their concerns surely influenced the manner of the arrest, the point constitutionally is that probable cause for the arrest did exist.

     Having found the arrest lawful, it follows that we uphold the search in which the gun was found.  As already noted, a police officer making an arrest has a limited right to conduct a search incident to that arrest.  This right to search is for the limited purposes of preventing the arrested person from reaching concealed weapons to injure the officer or others, and from destroying evidence.  Although the right to search is of limited scope, it plainly authorizes a reasonable search of the person being arrested, including in this case a search of the appendage at the end of Ludwig's arm, especially since gunshots had been heard in the vicinity.  The gun thus obtained by the officers was properly admitted as evidence in the trial.

B.     Standards of Proof - Testimony produced by the government in the trial revealed that the gun had a defective trigger.  Government witnesses were unable to say whether the gun was then operable, although it was clear that the instrument is a bona fide gun, capable of shooting bullets if the trigger is repaired or replaced.

     This is sufficient proof of possession of a firearm.  Under the statute, a firearm is "any device ... which is designed or may be converted to expel or hurl a projectile or projectiles by the action of an explosion, a release, or an expansion of gas, including but not limited to guns...."  11 F.S.M.C. 1204(4) (emphasis added).

     This carefully written language precludes evasion of the statute's purpose by such simple expedients as dismantling the weapon, maintaining weapons and ammunition in  separate places, removing one easily replaceable part, or other similar ploys.  Under the statute, current operability is not an essential element of the crime of possession of a firearm.

     Finally, Ludwig contends that the government's case was defective because there was no showing that his possession of the weapon did not come within any of the exceptions specified in the statute whereunder possession of a firearm is permissible. Specifically, he urges that, as a matter of constitutional due process, the government should have been required to show that he was not keeping or maintaining the gun merely as a curio, ornament or historical piece. 4

[2 FSM Intrm. 35]

     We have previously held that the government in any criminal case is required, as a matter of due process, to prove all elements of the offense beyond a reasonable doubt. Alaphonso v. FSM, 1 FSM Intrm. 209 (App. 1982).  We have not however determined how this rule applies in a prosecution under a criminal statute which forbids certain conduct but then provides exemptions by specifying instances whereunder the prohibited conduct is permissible.

     The Due Process Clause, Article IV, 3 of the Constitution, is based upon the Due Process Clause of the United States Constitution and we can look to interpretations under the United States Constitution for guidance.  Alaphonso, 1 FSM Intrm. at 214-15.

     The case of United States v. Mayo, 705 F. 2d 62 (2d Cir. 1983) involved facts remarkably similar to this case.  Mayo arose out of a prosecution for dealing in firearms without a license.  The United States statute's definition of firearms stated that the term does not include antique firearms.  The defendants contended that their convictions must be reversed because the government had failed to prove that the firearms were not antiques.  The court noted that statutes which provide defenses

in the form of exceptions to a general proscription do not reduce or remove the government's traditional burden of proving beyond a reasonable doubt every fact necessary to constitute the offense....In these situations, the legislature has manifested its judgment that the activity proscribed by the general prohibition can be best justified or explained by the defendant .... Exceptions to a general prohibition are a legitimate means to implement a legislative design and often serve to define the scope of the prohibition.

Id. at 74.  These principles, the court thought, flowed from the long-standing position of the United States Supreme Court, as expressed in McKelvey v. United States, 260 U.S. 353, 357, 43 S. Ct. 132, 134, 67 L. Ed. 301, 304 (1922), that:

an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere ... [I]t is incumbent on one who relies on such an exception to set it up and establish it.

The Mayo court then continued:  "The minimal burden placed on the defendant relying on a statutory exception does not impinge on constitutional rights because the government ultimately bears the burden of disproving the applicability of the exception when it is property presented."  705 F.2d at 74-75.  The Mayo court therefore viewed the task as one of statutory construction,  "to determine whether the language excluding antique weapons from the term firearm covers an exception which must be put in issue by the

[2 FSM Intrm. 36]

defendant or, instead, appends an additional element which the government must disprove beyond a reasonable doubt to establish the crime."  Id. at 75.

     Applying the test provided in Patterson v. New York, 432 U.S. 197, 206-07, 97 S. Ct. 2319, 2325, 53 L. Ed. 2d 281, 290 (1977) for an affirmative defense, as one that "does not serve to negative any facts of the crime," the court noted that proof that the weapons were antiques would not negative any of the government's proof necessary to establish violation of the prohibitions.  Finding no indication of legislative intent to the contrary, the Mayo court concluded that the language excluding antique weapons carved an exception which must be put in issue by the defendant.

     The Mayo analysis was subsequently adopted and applied in another United States  firearm case, United States v. Laroche , 723 F.2d 1541 (11th Cir. 1984).See also United States ex rel. Goddard v. Vauqhn, 614 F.2d 929 (3d Cir. 1980); United States v. Carr, 582 F.2d 242 (2d Cir. 1978).  We find the analysis appropriate for use here.

     Applying this method of legislative interpretation to 11 F.S.M.C. 1203, we find that most exemptions there relate to considerations separate from the essential elements of the crime.  A defendant claiming exemption as a law enforcement officer or United States military person engaged in official duty, 1203(1) and (4), or as a designated crocodile hunter, 1203(5), is not disputing any element of the government's basic case. 5  Instead, the exemption claim brings into play new facts, uniquely within the knowledge of the defendant, which the government could overlook by focusing on whether the conduct prohibited by the Act has occurred. The defendant is in a far better position to place these exemptions in issue and it is fair to require that he do so.

     We find the three exemptions named above to be defenses within the meaning of 11 F.S.M.C. 107.  They are not affirmative defenses for they are not so designated. 11 F.S.M.C. 107(3).  The ultimate burden of persuasion remains with the government, but the defendant has the burden of going forward with sufficient evidence to raise these exemptions as issues.

     We view the Section 1203(2) exemption for curios, ornaments and historical pieces differently.  Although this exemption is superficially similar to the exemption for antiques under consideration in Mayo, it is quite different in that the antique exemption in Mayo did not bring into question the capacity of the firearm to discharge.  A functioning antique qualifies for the exception under the United States statute.

[2 FSM Intrm. 37]

     In contrast, the Section 1203(2) exemption requires findings that the firearm be in "unserviceable condition" and "incapable of being fired or discharged."   While we have already said in this opinion that proof of current operability is not essential to a finding of guilt, the design and the capacity of the instrument to fire are at the very heart of the Act's definition of a firearm.  11 F.S.M.C. 1204(4).  To prove its case, the government must show that the device "is designed or may be converted to expel...projectiles."

     A showing that the device is "unserviceable" and "incapable of being fired" is surely to the negative of the government's required case. If the statute placed on the defendant the obligation to come forward with evidence concerning incapacity of the instrument to fire, this could ease the burden of the government in proving that the weapon is designed or may be converted to fire.  At the very least that interpretation would alter the normal dynamics and relationships between the parties concerning proof bearing upon an essential element of the government's case.  This we are reluctant to do and we find no indication of legislative intent that we do so.

     It is also significant that the government's presentation of its case will inevitably alert it to the potential application of the curio exemption.  In presenting its case, the government must address the capacity of the device to fire.   Although not always essential, current operability should be shown by the government, where possible, as standard procedure.  Current operability absolutely negates application of the Section 1203(2) exemption.  Conversely, inability to demonstrate current operability will inevitably alert the government to the necessity of demonstrating that the Section 1203(2) exemption is inapplicable.

     We hold therefore that inapplicability of the 11 F.S.M.C. 1203(2) exemption is an essential element of the government's case in a prosecution for unlawful possession of a firearm under 11 F.S.M.C. 1202.

     Of course arbitrary or irrational presumptions may not be applied as devices for avoiding governmental responsibility to prove inapplicability of 11 F.S.M.C. 1203(2) and all elements of the offense beyond a reasonable doubt.  We agree with Ludwig that a trial court may not simply presume that a person who possesses a firearm is not keeping it as a curio, ornament or for historical significance.  This would be an irrational or arbitrary, hence unconstitutional, presumption or inference because one can not determine from mere possession of a firearm alone the purpose or nature of that possession.

     However, these principles are of no avail to Ludwig.  Evidence in this case was not limited to a showing of mere possession.  The evidence was sufficient to enable a reasonable trier of fact to be persuaded beyond a reasonable doubt that the 11 F.S.M.C. 1203(2) exception was inapplicable.  That subsection applies only if the firearm is:  (1)  unserviceable; (2) incapable of being fired or discharged; and  (3) being kept as a curio,

[2 FSM Intrm. 38]

ornament or for its historical significance.  The evidence presented by the government to the effect that the weapon was loaded and being carried at 1:30 a.m. in strange rigging at the hand of one who had been drinking, at a time when gunshots had been heard in the area, was inconsistent with each of those requirements.

     We affirm, as supported by the evidence, the trial court's conclusion that this loaded weapon was not being kept as a curio, ornament or for its historical significance or value within the meaning of 11 F.S.M.C. 1203(2).

     The decision of the trial court is affirmed.

*       *        *        *
Footnotes:
 
 1.  This provision of the Weapons Control Act states, "No person shall manufacture, purchase, sell, possess, or carry any firearm, dangerous device, or ammunition other than as hereinafter provided."  (Back to opinion)

 2.  A "men's house" is a house of traditional construction set aside for communal use and meetings of men.  (Back to opinion)

 3.  It is generally recognized by courts that nonmedical persons may be capable of recognizing when someone is intoxicated.  Gaynor v. Atlantic Greyhound Corp., 183 F.2d 482 (3rd Cir. 1950). See also Diaz v. Faulkner, 293 F.2d 286 (6th Cir. 1961).  Mere observation by a police officer of a person conducting himself in a manner generally associated with intoxication could be "reasonable grounds" for a cautious person to consider it more likely than not that the person has been consuming alcohol.  This of course would depend upon the opportunity to observe actions and mannerisms usually associated with intoxication.  (Back to opinion)

 4.  "This chapter shall not apply to:  * * * firearms which are in unserviceable condition and which are incapable of being fired or discharged and which are kept as curios, ornaments, or for their historical significance or value."  11 F.S.M.C. 1203(2).  (Back to opinion)

 5.  The 11 F.S.M.C. 1203(3) exemption does not appear applicable to firearms.  (Back to opinion)