State v. Tsukiyama ( 1974 )

DISSENTING OPINION OF

LEVINSON, J.

I dissent.

The defendant was convicted by a circuit court jury of unlawfully possessing a revolver, marijuana and secobarbi-tal, a barbiturate. In this appeal he contends the trial court erred in not suppressing these items, which he claims were seized by the police in violation of his state and federal constitutional rights. I agree, and therefore would reverse the judgment and sentence of the trial court.

I state the police version of the facts. At approximately one o’clock on the morning of December 29, 1972, officer Paul Kohler of the Honolulu Police Department was on patrol in his automobile driving in an Ewa direction on North School Street in the Nuuanu section of Honolulu. On the mauka side of that street, near a pool hall that had just closed, officer Kohler observed three cars parked in a row, the lead car of which had its hood elevated. Ten or twelve men, including the defendant, were gathered around this automobile. Officer Kohler recognized one of the men as a “police character” — an individual he defined as someone who has “been in jail before for other crimes”; he did not know the defendant or any of the other men present.

Because he wanted to see what the men were doing there “at that time of the morning,” officer Kohler parked his car and transmitted a request for assistance on his radio. He planned to conduct an which he described as a procedure “to interrogate suspicious looking persons at odd hours of the day or night in residence or business areas or an uncommonly large number of people.” While he perceived nothing otherwise suspicious about the defendant’s be-haviour, officer Kohler felt that an “I.C.” was appropriate because the individual he recognized as a “police character” and the defendant “were in the same group. ”

After his call for assistance, officer Kohler left his automobile and began walking towards the group of men. He was then approached by the defendant, who asked him for the use of a flashlight to assist work on the engine of the apparently stalled lead car. Officer Kohler accordingly lent the defendant a flashlight, recognizing by that time that the men were concerned with car trouble only and that they were conducting themselves in a manner neither illegal nor suspicious.

Officer Kohler did not, however, retract his call for assistance. In a short while, an entire “task force” of police arrived at the scene — including at least ten officers and two “taskforce” vehicles. One ofthe newly arrived policemen — officer Albert Kaalele — observed an individual lying on the front seat of one of the three original parked cars, a blue Comet. He also saw a bicycle on the back seat of that car. Officer Kaalele told the man to get out of the Comet, and asked him to whom the car belonged. The man indicated the defendant as the owner. Officer Kaalele then approached the defendant and inquired whether the defendant was the owner of the Comet. When the defendant responded affirmatively, officer Kaalele asked him to whom the bicycle in the back seat of the Comet belonged. The defendant stated it belonged to one of his sons.

By this time officer Dennis Azevedo had joined officer Kaalele. Neither officer had ever seen the defendant before this time, and neither officer suspected him of any criminal activity. Nonetheless, according to officer Azevedo, the defendant “was asked [by officer Kaalele] to furnish identification which, at this time, he stated it was in his glove compartment of his vehicle.” Officer Kaalele testified “I asked him for some kind of I.D., if he had it on him.” When the defendant indicated his identification was located in the glove compartment of his car, according to officer Kaalele, “I told him: ‘Would you go and get it?’ ”

Followed closely by officers Kaalele and Azevedo, the defendant then “walked” or “proceeded” back to his automobile. The officers stationed themselves on either side of the automobile, at the front doors, and shone their flashlights on the glove compartment when the defendant began to open it. As the defendant was reaching inside the illuminated compartment the officers glimpsed the butt end of a revolver. Officer Kaalele immediately grabbed the defendant, wrestled him to the ground, then handcuffed and arrested him. The revolver was retrieved from the glove compartment, and an ensuing search of the car revealed the marijuana and barbiturates upon which the drug charges against the defendant were based.

The trial court denied the defendant’s pre-trial motion to suppress without making findings of fact for the record. However, the defendant renewed his motion to suppress at trial, at which time the trial court expressly found, “I don’t believe [Tsukiyama] was under arrest but he was being detained.” To the defendant’s argument that he had been “illegally” detained, the trial court responded, “I disagree. ’ ’ The record is clear, therefore, that the trial court found as a matter of fact that the defendant was subject to investigative detention by the police. It is equally clear that the trial court based its denial of the motion to suppress on a conclusion that the facts justified the detention.

The threshold question for this court hence becomes whether the trial court’s factual finding that the defendant had been forcibly stopped and required to furnish identification prior to his act of reaching into the glove compartment of his car is premised on substantial evidence in the record. Cf. State v. Price, 55 Haw. 442, 521 P.2d 376 (1974). I am persuaded the evidence fully supports the trial court’s finding in this regard. Officer Kohler’s call for assistance evoked the emergency response of an entire task force of police vehicles and personnel. Surrounded by police, the defendant was “asked to furnish” identification; he was “told . . . would you go and get it” when he stated his identification was elsewhere; he was closely accompanied by two armed officers on his “walk” back to his car; once inside the car, he was blocked from egress by an officer standing at each of the front doors. Certainly the defendant’s testimony indicates he subjectively/eZi deprived of his freedom to ignore the demand for identification and leave. Although officer Kaalele testified at trial that the defendant could have left at will, no one bothered to communicate this to the defendant at the time of the incident. Indeed, officer Kohler, who called for assistance for the purpose of conducting an “I.C.” of all of the men, including the defendant, testified that in the ”I.C.” procedure an individual is “[n]ot really” free to leave until he complies with an officer’s request for identification.

In Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968), the United States Supreme Court suggested a test, particularly appropriate to the-facts of this case, for determining when a “seizure” has occurred within the meaning of the fourth amendment. Seizure occurs, it stated, “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” In the present case, the emergency response of a task force of police vehicles and personnel to the scene, the imperative manner in which the police “asked” the defendant to produce identification, the two-on-one police escort of the defendant to his car, all combined to produce a “show of authority” by the police under the terms of which the defendant’s freedom to leave was conditioned on his compliance with their demands for identification. Cf. State v. Kaluna, 55 Haw. 361, 371 N.7, 520 P.2d 51, 60 n.7 (1974). In any event, I am unable to say the trial court was clearly erroneous in its express finding to this effect.

I am equally persuaded, on the other hand, that the trial court erred in finding the defendant’s detention justified by the circumstances. I say so having considered the facts in that light most favorable to the prosecution. Indisputably the defendant’s detention was a “seizure” within the meaning of the federal and state constitutions. U.S. Const. amends. IV & XIV; Hawaii Const. art. I, § 5; Adams v. Williams, 407 U.S. 143 (1972); State v. Joao, 55 Haw. 601, 525 P.2d 580 (1974). And a seizure of the person is subject to the constitutional rule of reasonableness, which requires, in the case of an investigative detention on less than probable cause, that the detaining police officer “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 605, quoting Terry v. Ohio, supra at 21. Yet the record is explicit that officers Kohler, Kaalele and Azevedo found nothing suspicious in the defendant’s conduct other than his “association” with a “police character” at a late hour. Mere association with known criminals, however, does not justify a forcible stop. Sibron v. New York, 392 U.S. 40 (1968). Nor does presence on the street at a late hour, even of a reputedly dangerous individual. State v. Joao, supra; State v. Onishi, 53 Haw. 593, 499 P.2d 657 (1972). Indeed, in this case the police avowedly and unqualifiedly recognized the legitimate nature of the defendant’s activity — the repair of a stalled car. This alone is fatal to the contention that the police perceived specific and articulable facts which reasonably suggested to them that the defendant was engaged in criminal activity. See Irwin v. Superior Court, 1 Cal. 3d 423, 427, 462 P.2d 12, 14, 82 Cal. Rptr. 484, 486 (1969) (“Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful”). Since the record reveals no other facts to buttress the trial court’s legal conclusion that the defendant’s detention was constitutionally permissible, I must conclude it erred in not suppressing the evidence seized as a result of that detention.

I have always thought that in this country, at least, the police are constitutionally precluded from accosting an individual on the street and demanding that he produce identification papers, unless they hold an articulable and reasonable suspicion that the individual is involved in illegal activity. Viewed in a light most favorable to the prosecution, the facts of the present case leave no doubt that the defendant was “seized” by the police and that his seizure was unjustified. I would therefore reverse.