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Bill to expand “power to arrest” to other departments rejected by Senate

Says bill needs to be “re-written”
Joyetter@samoanews.com

Pago Pago, AMERICAN SAMOA — Senators last week rejected an Administration bill to expand arrest powers to other departments, which would then be in addition to the Department of Public Safety (DPS) officers having such powers.

The bill is one of the measures by proposed by the Admin to counter the problem of illegal drugs, especially, methamphetamine (aisa) and marijuana (mealele) in the territory. In doing so the Admin moved to amend laws to expand arrest powers to other departments, not just the DPS.

“American Samoa is facing increasing problems involving the importation and sale of drugs, and American Samoa faces increasingly complex and specialized needs for law enforcement services in multiple departments, and the Government needs the flexibility to address evolving law enforcement needs,” the Administration explained in proposing the bill.

During a hearing before the Senate last week on the bill, Attorney General Fainuulelei Falefatu Ala'ilima-Utu was the sole witness called to testify.

Sen. Tuiagamoa Tavai chaired the hearing and confirmed receiving letters from the Department of Homeland Security, Search and Rescue as well as Customs in support of the proposed measure in question.

Fainuulelei informed the Senators there is also a letter from the Port Administration.

The AG explained this measure was born out of comprehensive communication between the Governor and the relevant department directors in an effort to eliminate drugs from the territory.

“As you all are aware this is one of the difficulties in the territory — the increase of hard drugs.”

The AG further made known his support of the bill.

Sen. Malaepule Fuena Moliga, a former Police Warden, voiced his reservations to the bill, pointing to the phrase, “power of arrest”. 

Malaepule said that under title 46 of the American Samoa Code Annotated, it’s stipulated the powers directed to police officers are for those who have graduated from a Police Academy.

He said the other departments that would be given the “power of arrest” have specific responsibilities and duties outlined for their work and they need to stick to it and let the law enforcement officers do their part by arresting people when warranted.

“If anyone breaks the law, they need to report it to the police officers and let them do their job.

“Once someone is placed under arrest, their rights have been infringed upon, whereas they are deprived of doing anything else, given they have been detained and — you [AG] want to give this power to Airport and Port Securities,” the senator asked.

Fainuulelei said the whole purpose of the proposed bill is to counter the high presence of illegal drugs in the territory and therefore gives the authority to Customs, Port/ Airport security/  Search and Rescue and Department of Homeland Security the power to arrest, but that does not mean they will not undergo relevant training.

The relevant department officers will undergo a stringent process and training before they are given this power, as  the proposed bill seeks to create a section under title 46.0201 subsection D which stipulates that the Commissioner of Public Safety shall appoint law enforcement officers.

Senate President Sen. Tuaolo Manaia Fruean asked whether the bill states that this power will apply to those that have graduated from a Police Academy and Fainuulelei confirmed that is true.

The AG said the proposal at hand is that once someone is found with drugs in their possession the relevant department offices can make the arrest right then and there, while the normal investigation can be carried out at a later time.

He added that this is more effective than the current process that Customs and Port security have to wait for the police to carry out the investigation.

The Senators were also told that this proposed bill was drafted by the Governor’s legal counsel.

Senator Magalei Logovii asked whether the Customs, DHS agents, Port security and Search & Rescue agents can arrest people for speeding on the main highway, and the AG replied no.

“The proposed law is clear, they can only make the arrest when it's in their authoritative vicinity like the airport property, only then the port securities can make an arrest,” explained the AG. 

Sen. Malaepule reminded the Senators that everyone is innocent until proven guilty, meaning just because they are arrested does not mean they have been found guilty of the charge.

In the end, the proposed bill was rejected by the Senators with the directive that the bill needs to be more thorough on certain legal aspects and needs to be rewritten.

BACKGROUND

According to the bill, section 1. 46.0201 of the American Samoa Code Annotated that appoints officers under current law stipulates that the Commissioner of Public Safety shall appoint deputy law enforcement officers as the exigencies of the public service may require.

“Persons appointed and commissioned under this section shall have and may exercise all of the powers and authority of a police officer.”

It is now proposed that a “police officer” or “law enforcement officer” is a person who is employed as a law enforcement officer by a department or agency authorized to employ law enforcement officers; and a graduate of a police academy approved by the Commissioner of Public Safety or otherwise authorized by law.

 “In order to exercise a law enforcement officer’s power of arrest, with or without a warrant, or to execute a search warrant, a person must be a law enforcement officer as defined in [the] subsection.

“The following departments or agencies are authorized to employ law enforcement officers:

Department of Public Safety; Department of Homeland Security; Department of Legal Affairs; Department of Port Administration as provided in Section 4.0202; Department of Treasury, Customs Office; Department of Corrections; Department of Search and Rescue and other agencies that authorized by law.

“The Commissioner of Public Safety shall appoint deputy law enforcement officers as the agencies of the public service may require.

“Persons appointed and commissioned under this section shall have and may exercise all of the power and authority of a police officer.”

According to the proposed bill nothing in this code section shall have any effect on the authority of the court to make arrests pursuant to the order of the High Court or District Court.

Also: “Nothing in this code section shall limit the authority of an Immigration Officer to exercise the authority conferred by Title 41 to make arrests of aliens.”

In addition, amended is Sec 2. 46.0202 concerning security guards, Department of Port Administration Police Officers appointment and powers.

It would read, “Employees of the airport manager Department of Port Administration engaged as security guards police officers, upon specific authorization and direction of the Commissioner, shall have all of the powers of police officers, including the power of arrest; provided, that such powers shall remain in force and effect only while the security guards police officers are in actual performance of their duties as security guards police officers on the property of an airport or seaport operated by the Department of Port Administration.”