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Motion to drop charges filed

By Tina Mata’afa

PAGO PAGO, American Samoa, (Samoa News, April 15, 2009) - The government has filed a motion with the Trial Division of the High Court to have the case against drug defendant David Atofau dismissed after evidence -- 23.4 grams of "ice" and US$6,000 cash -- went missing from the police evidence room.

"Evidence seized in connection with this matter is missing from the DPS evidence room," states the court document filed Apr. 8, 2009 by Assistant Attorney General Nicole Castro, the government prosecutor who is handling the drug case against Mr. Atofau.

The filing adds that Castro learned about the missing evidence from a DPS investigator with the Department of Public Safety’s Vice and Narcotics Division.

The evidence consisted of 23.4 grams of methamphetamine and US$6,000 cash, the filing says.

According to the motion, the government contacted the U.S. Drug Enforcement Agency Field Office in San Diego, Calif. and the Southwest Laboratory (the Lab) in Vista, Calif on April 7, 2009.

Through those telephone calls, Castro said they learned the seized amount of methamphetamine related to Mr. Atofau’s case had been analyzed on April 27, 2007 by a forensic chemist and returned to DPS on May 3, 2007.

Castro added the lab does not have any controlled substance associated with Mr. Atofau’s case in their vault.

"At some point on or after May 3, 2007, the analyzed seized controlled substance was removed from the DPS evidence room," the motion reads.

The government has learned that DPS Commissioner Tuaolo M. Fruean has initiated an investigation into the disappearance of the evidence, says Castro, noting that at the time the motion was filed, the DPS probe was still ongoing.

Castro moved to have the case dismissed without prejudice because, without evidence, it cannot proceed in the lawful administration of justice .

A message left yesterday by Samoa News with the police commissioner’s office was not immediately returned.

Despite media reports that OTICIDE has joined the probe into the missing evidence, Department of Homeland Security Director Mike Sala said last evening he is not involved and declined to comment.

OTICIDE is a bureau of DHS.

According to other media reports, Tuaolo has directed the head of DPS’ Criminal Investigation and Intelligence Bureau, Police Commander Vaa Sunia, to investigate how the evidence went missing.

Tuaolo said he is disturbed the evidence cannot be located and the removal of evidence must be stopped immediately, reported Radio New Zealand International.

The evidence room locks have been changed and the only keys to the room have been handed to Sunia, RNZI reported.

According to the government’s case against Mr. Atofau, police found meth, marijuana, US$6,000 cash and items, including a digital scale, considered drug paraphernalia, during a raid of his Ili΄ili home Apr. 2, 2007.

He was charged with two counts of unlawful possession of controlled substances (meth and marijuana) and possession with the intent to distribute.

In July 2007, the High Court denied Mr. Atofau’s motion to suppress evidence, specifically the drugs found in his home.

In his motion, Mr. Atofau contended the information that led to the court issuing a warrant to search his home lacked the necessary facts to make a finding of probable cause. He also asked the Court to order the ASG to reveal the name of the confidential informant (CI) the police used in its investigation of him. He contends the disclosure is necessary for his defense.

The CI, who personally knew Mr. Atofau, made a controlled buy from the defendant as part of the police investigation. Prior to the ‘controlled buy’, the CI had been at Mr. Atofau’s home and had purchased meth and marijuana from the defendant during this time.

The High Court said that viewing the totality of the circumstances, especially the personal observations of the CI and the controlled buy conducted by DPS, "we find that the affidavit provided a substantial basis to conclude probable cause existed to issue the warrant."

The Court also denied Mr. Atofau’s request to disclose the identity of the CI. The Court said the defendant is free to claim the drugs found in his house during the police raid belonged to someone else and his defense does not require the disclosure of the CI’s identity.

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