‘Agent’s warrantless entry and arrest of worker constitutional’

Superior Court Associate Judge David A. Wiseman yesterday ruled as constitutional a warrantless entry of an Immigration investigator into an establishment and the subsequent warrantless arrest of a nonresident worker.

Wiseman said that, because respondent Sarah G. Gascon has characterized herself as an invitee of a public establishment, she consequently has no legitimate expectation of privacy, and thus no constitutional complaint against her warrantless search and seizure.

“Invitees in homes have no such legitimate expectation of privacy such that the Fourth Amendment shields them from warrantless seach and seizure,” said the judge in denying Gascon’s motion for summary judgment.

The court may grant summary judgment when there are no issues as to any material fact and the party that requests such motion is entitled to judgment as a matter of law.

Wiseman ordered the respondent to appear in court on June 15 at 1:30pm for a status conference.

Court records show that on Feb. 16, 2006, Immigration investigator John Peter entered Capitol Bowling in Garapan. Peter stated that he had previously received two tips that Gascon was working illegally as a part-time baby-sitter and cook at Capitol Bowling.

That night, Peter proceeded to the kitchen and entered the kitchen door marked with “employees only” sign. The investigator confronted Gascon and asked for her papers.

After examining Gascon’s papers, Peter left the premises. After a few minutes, a police officer arrived and arrested the respondent.

Neither Peter nor the arresting police officer obtained any warrant prior to entering the Capitol Bowling.

Gascon, through counsel Stephen C. Woodruff, moved for summary judgment on the grounds that she was subjected to an unlawful search and seizure in violation of the U.S. and CNMI Constitutions.

In his order, Wiseman said he finds it odd that Gascon used the tool of summary judgment to effectuate her argument of illegal search and seizure. A suppression motion to exclude evidence flowing from the initial violation would be the most proper vehicle, he added.

Wiseman also said he finds it troubling that the respondent grounds her illegal search and seizure argument under the Fifth Amendment of the U.S. Constitution. In fact, the judge noted, the Fourth Amendment is the only properly invoked amendment when arguing against an illegal search and seizure.

Citing previous court rulings, Wiseman said a person’s Fourth Amendment right to be free from unreasonable search and seizure comes into play when that person has a legitimate expectation of privacy.

In this case, Wiseman said, Gascon’s argument that Peter’s warrantless search and seizure violated her constitutional rights is unpersuasive because she had no legitimate expectation of privacy, irrespective of her standing to raise such protection.

He said the logical conclusion is that commercial properties, used as public businesses, for example, likely do not provide a legitimate expectation of privacy at the same level of a home.

Wiseman said Gascon was washing dishes in a kitchen in a bowling alley open to the public and before closing time.

If Gascon was indeed an employee of the bowling alley, the judge said, she might had some expectation of privacy depending on the nature of her business.

“However, given the fact that respondent was ostensibly washing dishes with an employee suggests that respondent had no greater legitimate expectation of privacy than if she had been serving drinks on the bowling lanes,” Wiseman said.

Wiseman said if the court is to believe Gascon’s arguments that she was only volunteering her services to wash dishes, she can at best only claim to be an invitee of the bowling alley.

Gascon argued that she was not engaged in employment; rather she volunteered her services as a dishwasher to the bowling alley while seeking future employment with the business.