State v. Talo. ( 2023 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
15-MAR-2023
08:52 AM
Dkt. 23 OPA
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellee,
vs.
LOGOVII TALO,
Petitioner/Defendant-Appellant.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1PC161000667)
MARCH 15, 2023
McKENNA, WILSON, AND EDDINS, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN PART AND DISSENTING IN PART, WITH WHOM CIRCUIT
JUDGE MALINAO, IN PLACE OF NAKAYAMA, J., RECUSED, JOINS
OPINION OF THE COURT BY McKENNA, J.
I. Introduction
This opinion addresses whether the Circuit Court of the
First Circuit (“circuit court”) abused its discretion by
imposing a probation condition allowing warrantless searches by
a probation officer for contraband (“special condition Q”).
1
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Logovii Talo (“Talo”)’s probation was revoked after a
warrantless search by probation officers recovered a firearm and
ammunition from his home.
After acceptance of certiorari, this court ordered
supplemental briefing pursuant to Hawaiʻi Rules of Appellate
Procedure (“HRAP”) Rule 28(b)(4)(D) (2022),1 asking whether the
imposition of special condition Q was consistent with Hawaiʻi
Revised Statutes (“HRS”) § 706-624(2) (2016) and this court’s
holding in State v. Kahawai, 103 Hawaiʻi 462, 83 P.3d 725 (2004).
Kahawai held that a sentencing court may not impose
discretionary conditions of probation pursuant to HRS § 706–
624(2) unless there is a factual basis in the record indicating
that such conditions are reasonably related to the factors set
forth in HRS § 706–606 (2014) and that they only involve
deprivations of liberty or property reasonably necessary for the
purposes indicated in HRS § 706-606(2). Kahawai, 103 Hawaiʻi at
462-63, 83 P.3d at 725-26.
1 HRAP Rule 28(b)(4)(D) provides in relevant part:
[T]he appellate court, at its option, may notice a plain
error not presented. If an appellate court, when acting on
a case on appeal, contemplates basing the disposition of
the case wholly or in part upon an issue of plain error not
raised by the parties through briefing, it shall not
affirm, reverse, or vacate the case without allowing the
parties the opportunity to brief the potential plain-error
issue prior to disposition.
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We hold that the circuit court did not abuse its discretion
by imposing special condition Q because Talo was convicted of a
felony and a crime of violence, which prohibited him from owning
or possessing firearms and ammunition, and because he had notice
that “contraband” would include such items. We therefore affirm
the Intermediate Court of Appeals’ (“ICA”) June 30, 2022
judgment on appeal.
II. Background
A. Factual background
On the morning of September 11, 2015, Talo went to Rent-A-
Center in Wahiawā. When an employee told Talo the store was
closed, Talo forced his way in and repeatedly punched and struck
the employee, then threatened to kill him if he called the
police. The employee suffered a concussion, lacerated lip and
buccal cavity, and a cervical strain.
B. Circuit court proceedings
On June 29, 2017, Talo pled no contest to assault in the
second degree in violation of HRS § 707-711(1)(a) and/or (b)
3
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(2016).2 Relevant here, the circuit court3 sentenced Talo to
four years of probation with special terms and conditions.
A probation officer reviewed the terms and conditions of
probation with Talo on July 20, 2017. Talo signed the probation
conditions form, acknowledging he understood the conditions.
Talo’s pre-sentence report (“PSI”) indicated that he did not
have any registered firearms, but the probation conditions form
contained a standard warning that Talo was “prohibited from
owning or possessing any firearm or ammunition pursuant to HRS §
134-7.” Special condition B also prohibited Talo from owning or
possessing any firearms or ammunition. Additionally, special
condition Q provided that Talo was to:4
Q. Submit at reasonable times to a search of your
person, residence, vehicle, or other sites and property
under your control by any probation officer, with or
without a warrant, based on reasonable suspicion that
illicit substances(s) or other contraband, may be in the
places(s)of a search. Any
2 HRS § 707-711(1)(a) and (b) (2016) provided:
(1) A person commits the offense of assault in the second degree if:
(a) The person intentionally, knowingly, or recklessly causes
substantial bodily injury to another;
(b) The person recklessly causes serious bodily injury to another[.]
3
The Honorable Karen T. Nakasone presided.
4 Talo’s special condition Q was based on HRS § 706-624(2)(q), which
provides:
(q) Submit to a search by any probation officer, with or
without a warrant, of the defendant's person, residence,
vehicle, or other sites or property under the defendant's
control, based upon the probation officer's reasonable
suspicion that illicit substances or contraband may be
found on the person or in the place to be searched[.]
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illicit substances(s) or contraband found or observed in
such a search may be seized[.]
Two years later, in June and July of 2019, Talo’s wife,
Jenifer Talo (“Jenifer”), filed two domestic abuse temporary
restraining order petitions against Talo (“TRO petitions”).
Jenifer alleged in both petitions that Talo may own, possess, or
have access to a weapon.
Both petitions were ultimately dissolved. On September 30,
2019, however, a sergeant from the Honolulu Police Department
(“HPD”) contacted probation supervisor Eleanor Kekauoha
(“Kekauoha”) to inform her that Jenifer and the Talos’ son had
reported that Talo had a firearm. Kekauoha opened a probation
violation investigation for prohibited possession of a firearm.
On October 1, 2019, Kekauoha spoke to Jenifer regarding the
location of the firearm and ammunition. Kekauoha then reviewed
Jenifer’s TRO petitions. Kekauoha again spoke to Jenifer on
October 14, 2019, to set up a meeting, which finally occurred on
November 19, 2019. During this meeting, Kekauoha and assistant
probation supervisor Brooke Mamizuka obtained more details from
Jenifer and her son regarding the firearm and ammunition in the
home.
Based on this information, probation officers conducted a
warrantless search of Talo’s home and car on December 6, 2019.
Probation officers found a firearm wrapped in a lavalava under
the mattress of Talo’s bed, in his bedroom. They also located
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ammunition in an adjacent laundry basket in the same room.
Because probation officers do not handle or store weapons, HPD
officers were present and were called upon to handle the firearm
and ammunition. A motion to revoke Talo’s probation was filed
the same day.
At the January 16, 2020 initial hearing on the motion to
revoke, Talo orally moved to exclude or suppress all evidence
gathered as a result of the warrantless search. He asserted the
search had been a subterfuge to have probation officers conduct
a warrantless search for later criminal prosecution, which is
prohibited by State v. Propios, 76 Hawaiʻi 474, 480, 879 P.2d
1057, 1063 (1994). Various witnesses then testified over
several days in a consolidated hearing on the motions.
On March 12, 2020, the circuit court denied Talo’s motion
to suppress, concluding the probation officers had specific and
articulable facts to support a reasonable suspicion to conduct a
warrantless search of Talo’s home and car. The court concluded
the search was properly conducted for probation purposes, for
public safety, and the rehabilitative goals of probation. HPD
stopped its criminal investigation when the prosecutor’s office
indicated it would not be pursuing criminal charges. The
circuit court therefore determined the search was not a
subterfuge or a ruse for criminal prosecution and was not for an
HPD investigation.
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On June 18, 2020, the circuit court granted the motion for
revocation of probation and resentenced Talo to five years of
imprisonment with credit for time served.
C. ICA proceedings
On July 16, 2020, Talo filed a notice of appeal to the ICA.
Talo asserted: (1) the circuit court erred in denying Talo’s
motion to suppress because the probation search was merely a
subterfuge for later criminal prosecution in violation of
Propios, 76 Hawaiʻi at 480, 879 P.2d at 1063; and (2) the circuit
court abused its discretion in sentencing Talo to an open term
of imprisonment of five years.
The ICA concluded there was no indication that police and
probation officers colluded to gather evidence for a new
criminal prosecution against Talo; rather the purpose of the
warrantless search was to investigate a possible probation
violation. The ICA further held the circuit court properly
considered the factors in HRS §§ 706-621 (2014)5 and 706-606,
5 HRS § 706-621 Factors to be considered in imposing a term of probation.
The court, in determining whether to impose a term of probation, shall
consider:
(1) The factors set forth in section 706-606 to the extent
that they are applicable;
(2) The following factors, to be accorded weight in favor
of withholding a sentence of imprisonment:
(a) The defendant's criminal conduct neither caused nor
threatened serious harm;
(b) The defendant acted under a strong provocation;
(c) There were substantial grounds tending to excuse or
justify the defendant's criminal conduct, though
failing to establish a defense;
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including the nature and circumstances of the offense, Talo’s
history and characteristics, and public safety concerns. The
ICA therefore held the circuit court did not abuse its
discretion in re-sentencing Talo to a five-year term of
imprisonment.
D. Certiorari proceedings
Talo filed an application for writ of certiorari raising
the same legal issues he raised before the ICA. Although we
agree with the ICA that the issues Talo raised lack merit, we
accepted certiorari to address whether the circuit court erred
in imposing the warrantless search probation condition in the
first instance.
(d) The victim of the defendant's criminal conduct
induced or facilitated its commission;
(e) The defendant has no history of prior delinquency
or criminal activity or has led a law-abiding life for
a substantial period of time before the commission of
the present crime;
(f) The defendant's criminal conduct was the result of
circumstances unlikely to recur;
(g) The character and attitudes of the defendant
indicate that the defendant is unlikely to commit
another crime;
(h) The defendant is particularly likely to respond
affirmatively to a program of restitution or a
probationary program or both;
(i) The imprisonment of the defendant would entail
excessive hardship to the defendant or the defendant's
dependents; and
(j) The expedited sentencing program set forth in
section 706-606.3, if the defendant has qualified for
that sentencing program.
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We therefore ordered supplemental briefing on the question
of whether the imposition of special condition Q was consistent
with HRS § 706-624(2) and this court’s holding in Kahawai.
III. Standard of Review
A sentencing judge generally has broad discretion in
imposing a sentence. The applicable standard of review for
sentencing or resentencing matters is whether the court
committed plain and manifest abuse of discretion in its
decision. Factors which indicate a plain and manifest
abuse of discretion are arbitrary or capricious action by
the judge and a rigid refusal to consider the defendant's
contentions. And, generally, to constitute an abuse it
must appear that the court clearly exceeded the bounds of
reason or disregarded rules or principles of law or
practice to the substantial detriment of a party litigant.
State v. Mundon, 121 Hawaiʻi 339, 349, 219 P.3d 1126, 1136 (2009)
(quoting State v. Kahapea, 111 Hawaiʻi 267, 278, 141 P.3d 440,
451 (2006)).
IV. Discussion
A. Applicable law
Before addressing the parties’ supplemental briefs, we
summarize Kahawai and other law relevant to issues on
certiorari.
In State v. Fields, 67 Haw. 268, 686 P.2d 1379 (1984), we
balanced a probation condition allowing warrantless searches by
probation officers against a defendant’s constitutional rights.
Defendant Shirley Fields (“Fields”) was convicted of three drug
charges and sentenced to probation. 67 Haw. at 279, 686 P.2d at
1388. A condition of probation made her “subject at all
times . . . to a warrantless search of her person, property and
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place of residence for illicit drugs and substances by any law
enforcement officer including her probation officer.” 67 Haw.
at 271, 686 P.2d at 1383-84. Before any search pursuant to that
condition occurred, Fields challenged it on appeal. 67 Haw. at
273, 686 P.2d at 1384.
We noted that defendants sentenced to probation, like those
on parole or in prison, are subject to limitations from which
ordinary persons are free. 67 Haw. at 277, 686 P.2d at 1387.
We pointed out, however, that a defendant on probation still has
the right to enjoy a significant degree of privacy. 67 Haw. at
279, 686 P.2d at 1388. We recognized that our state
constitution explicitly protects people against unreasonable
searches, seizures, and invasions of privacy.6 67 Haw. at 282,
686 P.2d at 1390. We explained that while a warrantless search
condition might serve the probationary goal of protecting the
public, it was doubtful that a near-total surrender of privacy
would be reasonably related to Fields’ rehabilitation. 67 Haw.
at 278, 686 P.2d at 1387-88.
6 We cited to Article I, section 7 of the Constitution of the State of
Hawai‘i, 67 Haw. at 282 n.10, 686 P.2d at 1391 n. 10, which provides:
The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches,
seizures and invasions of privacy shall not be violated;
and no warrants shall issue but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched and the persons or
things to be seized or the communications sought to be
intercepted.
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We also pointed out that probation conditions must
contribute to the rehabilitation of the defendant, 67 Haw. at
278, 686 P.2d at 1387, and we discussed the role of probation
officers. A probation officer has been described as a social
therapist in an authoritative setting. 67 Haw. at 280, 686 P.2d
at 1388. The officer must monitor a probationer’s life and help
them safely reintegrate into the community. Id. Thus, we
reasoned that a probation officer has a unique interest in
invading a supervised defendant’s privacy and that given the
officer’s necessary involvement in a supervised person’s life,
there is a diminished expectation of privacy. 67 Haw. at 280,
686 P.2d at 1389.
Because of Fields’s known involvement in drug trafficking,
we concluded a condition allowing warrantless searches by her
probation officer could serve a legitimate correctional purpose
and contribute to her rehabilitation.7 67 Haw. at 280, 686 P.2d
at 1388. We held, however, that such a condition would be
unreasonable unless it required “specific and articulable facts
giving rise to a reasonable suspicion that illicit drugs are
concealed on the person, in the property, or at the place of
7 We distinguished between a probation officer, whose responsibility is
to monitor a probationer, and a police officer, who seeks to investigate and
prosecute criminal activity. 67 Haw. at 280, 686 P.2d at 1388. We concluded
that warrantless searches at the whim of police officers were unlikely to be
rehabilitative and unduly restrictive of a probationer’s liberty. Id.11
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residence” of the defendant.8 67 Haw. at 281, 686 P.2d at 1389.
Because the probation condition was not so limited, we vacated
the sentence and remanded for resentencing consistent with our
opinion. 67 Haw. at 282, 686 P.2d 1390.
Then, in State v. Lee, 10 Haw. App. 192, 862 P.2d 295(1993), the ICA held that a defendant's probation may not be
revoked for failure to comply with a special condition of
probation when he was never provided with written notice of that
condition, as required by HRS § 706-624(3) (Supp. 1992). 10
Haw. App. at 192, 862 P.2d at 295-96. HRS § 706-624(3) then
(and still) provides as follows:
(3) Written statement of conditions. The court shall
order the defendant at the time of sentencing to sign a
written acknowledgment of receipt of conditions of
probation. The defendant shall be given a written copy of
any requirements imposed pursuant to this section, stated
with sufficient specificity to enable the defendant to
comply with the conditions accordingly.
The ICA discussed the Commentary to HRS § 706–624, which
indicates that the written notice requirement “is an addition to
the law suggested by the Model Penal Code and accepted in other
states. The intent is to provide the defendant with notice of
what is expected of him in a form which will not escape his
memory.” Lee, 10 Haw. App. at 198, 862 P.2d at 298.
The next year, we held that despite the existence of
specific and articulable facts providing reasonable suspicion of
8 The existence of such required facts is not at issue in Talo’s case.
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a probation violation, a warrantless search by probation
officers can be invalid if its true purpose is future criminal
prosecution. Propios, 76 Hawaiʻi at 487, 879 P.2d at 1070. We
held the search in question unreasonable “because the avowed
purpose was in reality a subterfuge designed to facilitate a
criminal investigation,” as police took over a search nominally
conducted by probation officers to gather evidence for use in a
criminal prosecution, which actually occurred. 76 Hawaiʻi at
480-81, 879 P.2d at 1063-64.
Finally, Kahawai involved a defendant convicted of
violating a protective order. 103 Hawaiʻi at 463, 83 P.3d at
726. The State requested an alcohol and substance abuse
assessment and treatment, as necessary, as conditions of
probation. Id. The State argued that if a PSI had been
completed, various parties would have attested to the necessity
for such assessment and treatment. Id. Despite Kahawai’s
assertions that nothing in the record warranted such conditions,
the court imposed special conditions relating to alcohol and
substance abuse. Id.On certiorari, we held a sentencing court has discretion to
impose the conditions set forth in HRS § 706-624(2),9 but that
9 HRS § 706-624(2) now provides:
(2) Discretionary conditions. The court may provide, as
further conditions of a sentence of probation, to the
extent that the conditions are reasonably related to the
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factors set forth in section 706-606 and to the extent that
the conditions involve only deprivations of liberty or
property as are reasonably necessary for the purposes
indicated in section 706-606(2), that the defendant:
(a) Serve a term of imprisonment to be determined by the
court at sentencing in class A felony cases under section
707-702, not exceeding two years in class A felony cases
under part IV of chapter 712, not exceeding eighteen months
in class B felony cases, not exceeding one year in class C
felony cases, not exceeding six months in misdemeanor
cases, and not exceeding five days in petty misdemeanor
cases; provided that notwithstanding any other provision of
law, any order of imprisonment under this subsection that
provides for prison work release shall require the
defendant to pay thirty per cent of the defendant's gross
pay earned during the prison work release period to satisfy
any restitution order. The payment shall be handled by the
adult probation division and shall be paid to the victim on
a monthly basis;
(b) Perform a specified number of hours of services to the
community as described in section 706-605(1)(d);
(c) Support the defendant's dependents and meet other
family responsibilities;
(d) Pay a fine imposed pursuant to section 706-605(1)(b);
(e) Work conscientiously at suitable employment or pursue
conscientiously a course of study or vocational training
that will equip the defendant for suitable employment;
(f) Refrain from engaging in a specified occupation,
business, or profession bearing a reasonably direct
relationship to the conduct constituting the crime or
engage in the specified occupation, business, or profession
only to a stated degree or under stated circumstances;
(g) Refrain from frequenting specified kinds of places or
from associating unnecessarily with specified persons,
including the victim of the crime, any witnesses,
regardless of whether they actually testified in the
prosecution, law enforcement officers, co-defendants, or
other individuals with whom contact may adversely affect
the rehabilitation or reformation of the person convicted;
(h) Refrain from use of alcohol or any use of narcotic
drugs or controlled substances without a prescription;
(i) Refrain from possessing a firearm, ammunition,
destructive device, or other dangerous weapon;
(j) Undergo available medical or mental health assessment
and treatment, including assessment and treatment for
substance abuse dependency, and remain in a specified
facility if required for that purpose;
(k) Reside in a specified place or area or refrain from
residing in a specified place or area;
(l) Submit to periodic urinalysis or other similar testing
procedure;
(m) Refrain from entering specified geographical areas
without the court's permission;
(n) Refrain from leaving the person's dwelling place
except to go to and from the person's place of employment,
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the discretion is not without limits. 103 Hawaiʻi at 465, 83
P.3d at 728. We held:
A sentencing court may not impose discretionary conditions
of probation pursuant to HRS § 706-624(2)(1993) unless
there is a factual basis in the record indicating that such
conditions are reasonably related to the factors set forth
in HRS § 706-606 and insofar as such conditions involve
only deprivations of liberty or property that they are
reasonably necessary for the purposes indicated in HRS §
706-606(2).10
the office of the person's physician or dentist, the
probation office, or any other location as may be approved
by the person's probation officer pursuant to court
order. As used in this paragraph, "dwelling place"
includes the person's yard or, in the case of condominiums,
the common elements;
(o) Comply with a specified curfew;
(p) Submit to monitoring by an electronic monitoring
device;
(q) Submit to a search by any probation officer, with
or without a warrant, of the defendant's person, residence,
vehicle, or other sites or property under the defendant's
control, based upon the probation officer's reasonable suspicion
that illicit substances or contraband may be found on the person
or in the place to be searched;
(r) Sign a waiver of extradition and pay extradition
costs as determined and ordered by the court;
(s) Comply with a service plan developed using
current assessment tools; and
(t) Satisfy other reasonable conditions as the court
may impose.
10 HRS § 706-606(2) provides:
The court, in determining the particular sentence to be
imposed, shall consider:
. . . .
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to
promote respect for law, and to provide just
punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes of the
defendant; and
(d) To provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner[.]
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103 Hawaiʻi at 462-63, 83 P.3d at 725-26 (cleaned up).
We noted that a sentencing court is not limited to any
particular source of information when imposing probationary
conditions, as long as some factual basis for imposing such
conditions exists in the record. 103 Hawaiʻi at 465-66, 83 P.3d
at 728-29. We agreed with Kahawai, however, that the sentencing
court had no basis for imposing conditions related to substance
abuse when there was no factual basis in the record for such
conditions. 103 Hawaiʻi at 466, 83 P.3d at 729. Accordingly, we
remanded the case for resentencing. 103 Hawaiʻi at 468, 83 P.3d
at 731.
B. Supplemental briefs
As noted, we ordered supplemental briefing on the question
of whether the imposition of special condition Q was consistent
with HRS § 706-624(2) and this court’s holding in Kahawai.
1. State’s arguments
The State argues the imposition of special condition Q was
consistent with HRS § 706-624(2) and Kahawai because, as a
convicted felon, Talo could not possess firearms or ammunition,
and doing so would violate his probation and also constitute a
felony. The State posits:
[S]pecial condition Q is directly related to factors such
as “afford adequate deterrence to criminal conduct,” and
“protect the public from further crimes of the defendant.”
Special condition Q is directly relevant and related to the
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overall goal of probation to provide rehabilitation to the
probationer and protect the public from any criminal
activity.
The State thus contends special condition Q was consistent
with Kahawai. It points out Kahawai involved improperly imposed
drug and substance abuse conditions despite the lack of any drug
history in the record. 103 Hawai‘i at 466, 83 P.3d at 729. In
contrast, the State argues, Talo’s conviction for a violent
felony resulted in substantial injuries. The State also asserts
special condition Q directly relates to the factors in HRS §
706-606, and the overall rehabilitation of Talo. In summary,
the State contends special condition Q served a valid
rehabilitative purpose and was reasonably related to Talo’s
probation condition prohibiting him from possessing firearms and
ammunition based on his felony conviction.11
11 The State also asserts that although Talo’s crime did not involve use
of a firearm, special condition Q was reasonably related to his proclivity
towards violent aggressive conduct and also to future criminality. The State
cites a California case, People v. Balestra, 90 Cal.Rptr.2d 77 (Cal. 1999),
in support. Balestra held the trial court did not abuse its discretion in
imposing a warrantless search condition in an elder-abuse case that did not
involve narcotics, theft, or firearms. Balestra, 90 Cal.Rptr.2d at 80, 82.
The court ruled that “warrantless search conditions serve a valid
rehabilitative purpose, and because such a search condition is necessarily
justified by its rehabilitative purpose, it is of no moment whether the
underlying offense is reasonably related to theft, narcotics, or firearms.”
90 Cal.Rptr.2d at 82.
This holding, however, violates Kahawai’s requirement of factual basis
in the record for imposition discretionary conditions. 103 Hawaii at 466, 83
P.3d at 729. Therefore, it is not persuasive.
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2. Talo’s arguments
Talo argues the circuit court illegally imposed special
condition Q because there was no factual basis in the record or
in the nature of the charge that supported the condition.
Talo argues that, in Fields, this court validated a
warrantless search probationary condition because of the
defendant’s known proclivity for involvement in the trafficking
of illicit drugs. 67 Haw. at 280, 686 P.2d at 1389. Talo also
argues that, in Propios, this court implicitly upheld a
warrantless search condition based on the probationer’s drug
offense conviction and her history of drug use. 76 Hawaiʻi at
481, 879 P.2d at 1064.
Talo argues that, in contrast, there is nothing in the
record that supports the imposition of any warrantless search
condition. Talo points out there was no weapon involved and
that his blood alcohol content after the incident was .000%.
Talo also asserts this was his only conviction and that he has
never been arrested or charged with offenses involving drugs,
alcohol, or other contraband. Talo also points to the statement
in his PSI that he has never experimented with illegal
substances and has not consumed alcohol in three to four years.
In summary, Talo argues special condition Q should not have
been imposed because there was nothing in the nature and
circumstances of the underlying offense or Talo’s history and
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characteristics that suggested the condition was necessary. He
argues his felony conviction, without more, is insufficient to
support the imposition of special condition Q. Furthermore,
Talo claims that the nature of the charge itself, assault in the
second degree, does not indicate the use of illicit substances
or contraband that would support special condition Q.
C. Analysis
For the reasons discussed below, we hold the circuit court
did not abuse its discretion by imposing special condition Q.
1. Special condition Q is reasonably related to the
factors in HRS § 706-606(2) and is consistent with
Kahawai
As recognized in Kahawai, a trial court has discretion to
impose special conditions of probation pursuant to HRS § 706–
624(2) that are reasonably related to the factors set forth in
section 706-606, but only to the extent that the conditions
involve deprivations of liberty reasonably necessary for the
purposes indicated in section 706-606(2). Kahawai, 103 Hawaiʻi
at 465, 83 P.3d at 728. And pursuant to Kahawai, a factual
basis for imposing special conditions of probation must inhere
in the record.12 103 Hawaiʻi at 466, 83 P.3d at 729.
12 Although no longer at issue due to the revocation of probation, based
on the applicable law discussed in Section IV.A, we agree with Talo that
special conditions M, N, O, and P, relating to alcohol and drug/paraphernalia
possession, use, consumption, testing, assessment, and treatment, if
necessary, were improperly imposed on him. The record does not reflect that
Talo had drug or alcohol issues. The imposition of these conditions violated
Kahawai.
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At issue in this case is special condition Q. HRS § 706-
624(2) provides in relevant part:
(2) Discretionary conditions. The court may provide, as
further conditions of a sentence of probation, to the
extent that the conditions are reasonably related to the
factors set forth in section 706-606 and to the extent that
the conditions involve only deprivations of liberty or
property as are reasonably necessary for the purposes
indicated in section 706-606(2), that the defendant:
. . . .
(q) Submit to a search by any probation officer, with or
without a warrant, of the defendant’s person, residence,
vehicle, or other sites or property under the defendant’s
control, based upon the probation officer’s reasonable
suspicion that illicit substances or contraband may be
found on the person or in the place to be searched[.]
HRS § 706-606, referred to in HRS § 706-624(2),
provides:
The court, in determining the particular sentence to be
imposed, shall consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) The need for the sentence imposed:
(a) To reflect the seriousness of the offense, to
promote respect for law, and to provide just
punishment for the offense;
(b) To afford adequate deterrence to criminal
conduct;
(c) To protect the public from further crimes of the
defendant; and
(d) To provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective
manner;
(3) The kinds of sentences available; and
(4) The need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct.
Thus, HRS § 706-624 first requires a determination of
whether a special (discretionary) condition of probation is
reasonably related to the factors set forth in HRS § 706-606.
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With respect to special condition Q, Talo was convicted of a
felony under Hawaiʻi law, assault in the second degree. He was
also convicted of a “crime of violence” under Hawaiʻi law.13 As
such, Talo is prohibited from owning, possessing, or controlling
any firearm or ammunition pursuant to HRS § 134-7(b).
Hence, special condition Q was reasonably related to
deterring Talo from committing an HRS § 134-7(b) firearm and/or
ammunition possession crime. It was also reasonably related to
protecting the public from further crimes by Talo involving
firearms. Thus, at a minimum, special condition Q is reasonably
related to factors (2)(b) and (c) of HRS § 706-606.
HRS § 706-624(2) further requires that special conditions
involve deprivations of liberty only as reasonably necessary for
section 706-606(2) purposes. Due to the heightened danger of
firearm use,14 special condition Q involves a deprivation of
13 HRS § 134-1 (2016) defines “crime of violence” as “any offense, as
defined in title 37, that involves injury or threat of injury to the person
of another, including sexual assault in the fourth degree under section 707-
733 and harassment by stalking under section 711-1106.5.”
14 In 2020, Hawaiʻi had the lowest age-adjusted firearm mortality rate in
the nation and only fifty total firearm deaths. Firearm Mortality by State,
Centers for Disease Control and Prevention, https://perma.cc/92XH-PMRD.
While Hawaiʻi ranks the lowest nationally in gun ownership and has some of the
strictest firearm laws, the number of firearms in Hawaiʻi is increasing. Gun
Violence and Violent Crimes Commission (“GVVCC”), Report of the GVVCC 6
(2022). From 2000 to 2020, the number of permit applications processed
increased by 302.5 percent. Id. Additionally, between 2010 and 2019, Hawaiʻi
saw a 38 percent increase in gun deaths. Jolanie Martinez, Criminologists
see uptick in gun violence involving Hawaii’s young people, Hawaiʻi News Now
(May 27, 2022), https://perma.cc/U6XP-RGX2.
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liberty only as reasonably necessary for the section 706-606(2)
purposes discussed above.
Finally, Kahawai also requires a factual basis in the
record for imposing a discretionary condition of probation.15
103 Hawaiʻi at 466, 83 P.3d at 729. Although Talo did not use a
firearm in the commission of the underlying assault, the record
supports the imposition of special condition Q because Talo was
convicted of a felony offense as well as a crime of violence,
which prohibited him from owning or possessing any firearms or
ammunition.
2. Under the circumstances, special condition Q’s
prohibition on possession of “contraband” gave Talo
appropriate notice that he was prohibited from owning
or possessing firearms or ammunition
As discussed earlier, HRS § 706-624(3) requires that a
written statement of probation conditions be provided to a
defendant:
(3) Written statement of conditions. The court shall
order the defendant at the time of sentencing to sign a
written acknowledgment of receipt of conditions of
probation. The defendant shall be given a written copy of
any requirements imposed pursuant to this section, stated
with sufficient specificity to enable the defendant to
comply with the conditions accordingly.
15 The sentencing transcript is not part of the record, so it is possible
that testimony at the sentencing hearing created a record indicating that
special condition Q was necessary. Regardless, we conclude special condition
Q was properly imposed based on the record.
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The ICA explained in Lee that this written notice requirement is
intended to provide defendants with notice of what is expected.
Lee, 10 Haw. App. at 198, 862 P.2d at 298.
Special condition Q allows for warrantless searches by a
probation officer based on reasonable suspicion that “illicit
substances(s) or other contraband, may be in the places(s) of a
search.” (emphasis added). If, as required by Kahawai, a
sufficient factual basis appears in the record to impose
special conditions regarding drugs, a person on probation would
most likely have notice that a warrantless search condition for
“illicit substances” could allow for drug searches.16
The meaning of “contraband,” however, is not clear.
“Contraband” could include firearms, child pornography, illegal
fireworks, military equipment, or even endangered animals kept
as pets, just to name a few examples.17 Hence, special condition
16 The term “illicit substances” is understood to refer to addictive and
illegal substances such as heroin and meth. Illicit Drug Addiction and
Abuse, Addiction Center, https://perma.cc/CR8E-ARMF.
17 Black’s Law Dictionary (11th ed. 2019) defines “contraband” as follows:
1. “Illegal or prohibited trade; smuggling”;
2. “Goods that are unlawful to import, export, produce, or possess.”
contraband, adj.
- absolute contraband. (1908) Goods used primarily for war, such as
arms and ammunition, as well as clothing and equipment of a military
character.
- conditional contraband. (1915) Goods susceptible of being used for
warlike and peaceful purposes, such as coal and food.
- contraband per se. (1901) Property whose possession is unlawful
regardless of how it is used.
- derivative contraband. (1965) Property whose possession becomes
unlawful when it is used in committing an illegal act.
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Q does not provide sufficient notice to a person on probation as
to what “contraband” the person is prohibited from possessing so
as to “enable the [person] to comply with the conditions
accordingly.” HRS § 706-624(3). In addition, for “contraband”
that has nothing to do with the record, special condition Q
would violate Kahawai. 18
In Talo’s case, however, his written probation conditions
contained a clear warning that he was “prohibited from owning or
possessing any firearm or ammunition pursuant to HRS § 134-7.”
Special condition B also clearly prohibited him from owning or
possessing any firearms or ammunition.19 Therefore, special
condition Q sufficiently provided Talo with notice that
“contraband” included firearms or ammunition.
18 We disagree with the dissent that a probation condition prohibiting
possession of all “contraband” is consistent with the Hawaiʻi cases we have
discussed.
19 YOU SHALL:
. . . .
B. Not own or possess any firearms or ammunition. If you have any
firearms or ammunition, you must immediately turn them in to the
appropriate county police department[.]
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V. Conclusion
Because Talo’s points on certiorari lack merit and the
circuit court did not abuse its discretion in imposing special
condition Q, we affirm the ICA’s June 30, 2022 judgment on
appeal.
Benjamin E. Lowenthal /s/ Sabrina S. McKenna
Jon N. Ikenaga (on the briefs)
for the petitioner /s/ Michael D. Wilson
Loren J. Thomas /s/ Todd W. Eddins
for respondent
25