State v. Wilson , 55 Haw. 314 ( 1974 )

Per Curiam.

This is an appeal, pursuant to Rule 43 of the District Court Rules of Penal Procedure, from the ruling of the district court that it had jurisdiction to entertain motions to suppress evidence at a preliminary hearing of a felony.

ISSUE

Whether the district court has authority to suppress or exclude unconstitutionally obtained evidence in a preliminary hearing on a felony charge.

FACTS

The appellees were charged, pursuant to an Information, in the district court of the third circuit, North and South Kona Division, with violation of Section 712-1247 (1) (e), Hawaii Revised Statutes, as amended, for the felony offense of promotion of a detrimental drug in the first degree.

A preliminary hearing was held on June 8, 1973, where the State (appellant) called its only witness, a police sergeant, who testified regarding the execution of the search warrant upon the appellees’ residence.

At the conclusion of appellant’s evidence, the appellees moved to suppress the evidence presented and to dismiss the charges. The court took the matter under advisement and subsequently granted the motion and dismissal, ruling that it had jurisdiction to entertain a motion to suppress and to dismiss the case under authority of Rule 46(e) of the District Court Rules of Penal Procedure, on the ground that the search was conducted under an illegal “blanket’ ’ warrant.

POWER OF THE DISTRICT COURT UNDER RULE 46(e) OF THE DISTRICT COURT RULES OF PENAL PROCEDURE

We are of the opinion the district court did not have jurisdiction to entertain or rule upon a motion to suppress the evidence in the instant case under Rule 46(e).

Rule 46(e) of the District Court Rules of Penal Procedure states in pertinent part:

MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE. A person aggrieved by an unlawful search and seizure may move the court having jurisdiction to try the offense for the return of the property, or to suppress for use as evidence anything so obtained, or both, on the ground that ....

Section 604-8, Hawaii Revised Statutes, provides in pertinent part:

District courts shall have jurisdiction of, and their criminal jurisdiction is limited to, criminal offenses punishable by fine, or by imprisonment not exceeding one year whether with or without fine. They shall not have jurisdiction over any offense for which the accused cannot be held to answer unless on a presentment or indictment of a grand jury.

The crime the appellees were charged with is a felony¹ which provides for a maximum five-year² term of imprisonment and thus is not triable in the district court. Thus, the district court does not have jurisdiction to rule on a motion to suppress evidence.

POWER OF THE DISTRICT COURT UNDER RULE 5(d) (2) OF THE HAWAII RULES OF CRIMINAL PROCEDURE

We cannot say, however, that the exclusion of the evidence was erroneous. Although the district court is expressly limited by Rule 46(e) in its jurisdiction over motions to suppress, the district court is empowered under Rule 5(d) (2), Hawaii Rules of Criminal Procedure³ to conduct a preliminary hearing, to hear evidence, and to discharge a defendant should probable cause not appear from the evidence adduced.

We are of the opinion that in a proceeding under Rule 5(d) (2), the district court, a court of record, must adhere to the general rules of evidence which include objections to the admissibility of unconstitutionally seized evidence. Thus, the district court was correct in the end result of excluding the unconstitutionally seized evidence although founded in technically inaccurate authority. To hold otherwise would allow the finding of probable cause that a felony had been committed upon illegally obtained evidence, a practice which violates the sanctions of the exclusionary rule. The district judge was bound by oath of office to uphold the Constitutions of the United States and the State of Hawaii. In our opinion the exclusionary rule is a sanction essential to upholding federal and state constitutional safeguards against unreasonable searches and seizures. See State v. Pokini, 45 Haw. 295, 308-309, 367 P.2d 499, 506 (1961). Therefore, notwithstanding the label attached to the motion in question, we shall treat it as a motion to strike and affirm the judgment of the court below.⁴

Christopher J. Roehrig, Deputy Prosecuting Attorney, County of Hawaii (Paul M. De Silva, Prosecuting Attorney, County of Hawaii, of counsel), for plaintiff-appellant. Steven K. Christensen (Christensen and Clark of counsel) for defendants-appellees.

It is not our intention to hold, however, that the district court has the authority to entertain motions at a pre-hearing prior to the preliminary hearing. The expeditious nature of a preliminary hearing and economy of district court time, demand that objections to the admissibility of evidence be raised at the preliminary hearing by an appropriate objection or motion to strike.⁵

Affirmed.

1 HRS § 712-1247 (2).

2 HRS § 706-660.

3 Rule 5(d) (2), Hawaii Rules of Criminal Procedure provides:

(2) Preliminary Examination. A defendant charged with the commission of a felony shall not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall forthwith hold him to answer in the circuit court. If the defendant does not waive examination, the magistrate shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If from the evidence it appears to the magistrate that there is probable cause to believe that a felony has been committed and that the defendant has committed it, the magistrate shall forthwith hold him to answer in the circuit court; otherwise the magistrate shall discharge him. The magistrate shall admit the defendant to bail as provided in these rules. If the defendant is held to answer in the circuit court, the magistrate shall forthwith issue a mittimus for such purpose and shall transmit to the clerk of the circuit court all papers in the proceeding and any bail taken by him. [Magistrate is now entitled district judge under Act 188, seetion39, of the Session Laws of Hawaii 1970, effective January 1, 1972.]

4 The motion to suppress is essentially the same as a motion to strike when dealingwiththeadmissibilityof evidence. See Riddle v. State, Ind. , ,275 N.E.2d 788, 790 (1971), where the Supreme Court of Indiana stated: “The admissibility of evidence secured under a search warrant can be challenged either before trial in a pre-trial motion to suppress, or at trial by timely objection or motion to strike.”

5 The State argues that it may be forced to take a direct appeal to this court from an exclusionary order of the district court, or otherwise be bound by the decision of the district court by the doctrine of res judicata. We note, however, that a preliminary hearing in the district court is only the initial stage of criminal proceedings. Accordingly, the circuit court has jurisdiction after indictment to consider the issue of admissibility of evidence and is not bound by the decision of the district court.