State v. Lafradez ( 2022 )


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  •   NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    31-MAR-2022
    07:47 AM
    Dkt. 41 SO
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    STATE OF HAWAI#I, Plaintiff-Appellant,
    v.
    JORGE BAILON PASCUA LAFRADEZ,
    also known as BAILON PASCUA LAFRADEZ,
    Defendant-Appellee
    APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
    (CASE NO. 1CPC-XX-XXXXXXX)
    SUMMARY DISPOSITION ORDER
    (By:   Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
    Plaintiff-Appellant State of Hawai#i (State), appeals
    from the Findings of Fact, Conclusions of Law (FOFs/COLs), and
    Order Granting Defendant-Appellee Jorge Bailon Pascua Lafradez,
    also known as, Bailon Pascua Lafradez's (Lafradez) Motion to
    Suppress Evidence (Order Granting Motion to Suppress Evidence),
    filed on May 11, 2021 by the Circuit Court of the First Circuit
    (Circuit Court).1
    Lafradez was charged via Felony Information with
    Promoting a Dangerous Drug in the Second Degree. On May 3, 2021,
    he filed a Motion to Suppress Evidence (Motion), which the
    Circuit Court granted. The State timely appealed.
    On appeal, the State contends that the Circuit Court
    erred in: (1) finding in FOF 6 that "Lafradez's [vehicle] was
    parked near the intersection of Auld Lane and Wong Lane;" (2)
    concluding that Lafradez's vehicle was not in violation of
    1
    The Honorable Kevin A. Souza presided.
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Revised Ordinances of Honolulu (ROH) § 15-14.1(a)(3)2 and that
    therefore the officer did not have reasonable suspicion to
    approach the driver's window of the vehicle, challenging COLs 14,
    18, 20, 29, and 31; and (3) suppressing all evidence of the bag
    of crystal methamphetamine that the officer saw from his position
    outside of the vehicle based on the Circuit Court's conclusions
    that the officer did not have a reasonable suspicion to approach
    the vehicle, and that the open view and plain view exceptions did
    not apply, challenging COLs 23, 24, 26, 28, 31, and 32.
    Upon careful review of the record and the briefs
    submitted by the parties, and having given due consideration to
    the arguments advanced and the issues raised, we resolve the
    State's points of error as follows, and affirm.
    The following evidence was adduced at the April 30,
    2021 suppression hearing. On September 9, 2020, Officer
    Alexander Watson (Officer Watson) approached a blue Kia (vehicle)
    with Kia dealer plates parked on the edge of a T-intersection of
    Auld Lane and Wong Lane to address a parking violation. See FOFs
    6, 7, 8, and 9.3 The vehicle was not impeding traffic, and there
    were no signs that prohibited parking in the area. FOFs 9 and
    10. Upon approach, Officer Watson observed Lafradez and other
    occupants through an open driver's seat window with no medical
    grade face coverings. See FOFs 7, 8, and 14. While standing
    outside of the vehicle, Officer Watson observed a clear
    transparent "baggy" (baggy) between Lafradez's legs, which he
    2
    ROH § 15-14.1(a)(3)(Honolulu Supp. No. 30, 9-2017) states in
    pertinent part:
    Sec. 15-14.1 Stopping, standing or parking prohibited
    in specified places—No signs required. (a) No person shall
    stop, stand or park a vehicle, except when necessary to
    avoid conflict with other traffic or in compliance with the
    law or the directions of a police officer or traffic control
    device, in any of the following places:
    . . . .
    (3) Within an intersection, along the edges or curbsides
    around corners and in channelized areas of any two
    intersecting streets . . . .
    3
    "It is well-established that . . . unchallenged findings of fact
    are binding upon appellate courts." State v. Rodrigues, 145 Hawai#i 487, 497,
    
    454 P.3d 428
    , 438 (2019) (citations omitted).
    2
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    recognized to be crystal methamphetamine. FOFs 17 and 19. At
    the conclusion of the hearing, Lafradez argued that there was no
    parking violation under ROH § 15-14.1(a)(3), and thus no
    reasonable suspicion to validate Officer Watson's approach of the
    vehicle to be able to observe the baggy in open or plain view.
    The State argued that the Motion should be denied, because the
    open view exception to the warrant requirement applied, and that
    reasonable suspicion was not needed to justify the stop.
    Further, the State argued that even if this was not an open view
    case, there was nevertheless a parking violation and sufficient
    articulable facts establishing reasonable suspicion for Officer
    Watson to approach the vehicle and observe the baggy in plain
    view.
    (1) The State's contention that the Circuit Court erred
    in FOF 6 that Lafradez's vehicle was parked "near," rather than
    "within" the intersection, is without merit. FOF 6 states:
    6.    Both officers encountered [the vehicle] with 'Aloha
    Kia' plates, which was parked near the intersection of
    Auld Lane and Wong Lane.
    (Emphasis added). The State argues that FOF 6 is clearly
    erroneous because Officer Watson testified that the vehicle was
    "parked within the intersection[.]"4 (Emphasis added).
    4
    Officer Watson testified that while on duty in his unmarked police
    vehicle on September 9, 2020 at approximately 11:40 p.m., he came upon the
    vehicle as follows:
    Q     [By State] And when you're in that area, did
    you at some point stop your vehicle?
    A     [By Officer Watson] Yes.
    Q     And why did -- did you stop your vehicle?
    A     It's a blue Kia Sedona with Aloha Kia plates
    parked within the intersection of I believe it was Auld
    and Wong. So I stopped my vehicle to address that
    parking violation.
    . . . .
    Q     So in this T-intersection, can you describe
    where the Kia Sedona vehicle was located in that T.
    A     So the vehicle was parked on Auld Lane on the
    south or makai bound side of the road within the I guess
    you would say prolongations of Wong Lane or what I would
    define as the intersection, T-intersection, of Auld and
    (continued...)
    3
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    We review findings of fact under the clearly erroneous
    standard of review. State v. Lawson, 103 Hawai#i 11, 19, 
    78 P.3d 1159
    , 1167 (App. 2003) (citation omitted). A finding of fact is
    clearly erroneous when: "(1) the record lacks substantial
    evidence to support the finding, or (2) despite substantial
    evidence in support of the finding, the appellate court is
    nonetheless left with a definite and firm conviction that a
    mistake has been made." 
    Id.
    Here, while the Circuit Court found that Officer Watson
    was credible (FOF 1), Lafradez's Motion contested the factual
    basis for the investigative stop and challenged whether any
    parking violation had occurred. In COL 14 and in its oral
    ruling, the Circuit Court explained that it had to independently
    determine whether there was, or appeared to be, a parking
    violation, rather than simply accepting the officer's claim of
    such violation. In COL 14, the Circuit Court stated that it
    "does not take Officer Watson at his word that there was a
    traffic violation, when the vehicle was blocking the
    intersection." In its oral ruling at the conclusion of the
    hearing, the Circuit Court explained that under the law, it had
    to determine whether Officer Watson's investigative stop was
    valid under Terry v. Ohio, 
    392 U.S. 1
     (1968):5
    And so that's the standard here -- is not just
    to simply take Officer Watson at his word that there was
    a traffic violation, namely, that the Kia Sedona was
    blocking the intersection, which is what he alleged the
    traffic violation was, but for the Court to look at all
    of the evidence submitted and to determine whether there
    were specific and articulable facts that a reasonable
    person would be warranted in believing that criminal
    activity was afoot.
    So in doing so, the Court doesn't only look at
    Officer Watson's testimony. I look at all the evidence
    that was submitted by the defense in this particular
    4
    (...continued)
    Wong.
    (Emphases added).
    5
    In Terry, the United States Supreme Court recognized "that a
    police officer may in appropriate circumstances and in an appropriate manner
    approach a person for purposes of investigating possibly criminal behavior
    even though there is no probable cause to make an arrest." Terry, 
    392 U.S. at 22
    .
    4
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    case. I also look as a matter of law, as [Defense Counsel]
    has correctly pointed out, to Revised Ordinances of Honolulu
    Section 15-14.1(a)(3), which the Court will adopt as part
    of its findings of fact in this particular case.
    . . . .
    . . . I look at Exhibits E –- or D, E, F, G, and H, it's
    clear to this Court that indeed, as Officer Watson
    testified, the Kia Sedona was parked alongside the curb, not
    blocking the intersection, it was not parked on any of the
    corners, and there were no specific prohibitions or signs
    indicating there were prohibitions for the vehicle to be
    parked in that particular area.
    And so in looking at the test to determine whether
    from the facts measured against an objective standard, did
    Officer Watson have a reason to believe that criminal
    activity was afoot such that the action he took was
    appropriate, in light of Revised Ordinances Section 15-
    14.1(a)(3) and the testimony and the evidence submitted to
    the Court, the Court will find that Officer Watson did not
    have reasonable suspicion or probable cause to approach the
    vehicle to investigate a parking violation on September 9,
    2020, at 11:40 p.m.
    The Circuit Court found in unchallenged COL 16, which
    is actually an FOF, that "the vehicle was not parked in the
    middle of the intersection, but rather parked near or along the
    curb on Auld Lane," and was "not impeding traffic, and it was not
    on the corners of the T-intersection." COL 16. In unchallenged
    COL 17, which is also an FOF, the Circuit Court found: "There
    were no red markings or any 'No Parking' signs or other signs
    where the vehicle was parked."
    At a motion to suppress hearing, "[t]he trial court, as
    the finder of fact, may draw reasonable and legitimate inferences
    and deductions from the evidence," and it is the province of the
    trial court "to assess the credibility of witnesses . . . and it
    may accept or reject such testimony in whole or in part." State
    v. Kaleohano, 99 Hawai#i 370, 376, 
    56 P.3d 138
    , 144 (2002)
    (citation and internal quotation marks omitted). "Appellate
    courts defer to the judge or jury as fact finder unless no
    substantial evidence existed for their finding because the fact
    finder is uniquely qualified to evaluate the credibility of
    witnesses and to weigh the evidence." Wilton v. State, 116
    Hawai#i 106, 119, 
    170 P.3d 357
    , 370 (2007) (citation omitted).
    Here, the Circuit Court's factual finding, that
    Lafradez's vehicle was "near" the intersection and not "within"
    5
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    it, was supported by COLs 16, 17, and Officer Watson's
    testimony.6 The Circuit Court, as the fact finder, had the
    prerogative to reject Officer Watson's testimony in part, even
    while finding him credible. See Kaleohano, 99 Hawai#i at 376, 
    56 P.3d at 144
    . The Circuit Court weighed and considered all of the
    evidence, assessed credibility, and drew reasonable and
    legitimate inferences and deductions to arrive at its factual
    finding that the vehicle was "near" the intersection and not
    "within" it. See id.; Wilton, 116 Hawai#i at 119, 
    170 P.3d at 370
    . The record reflects that FOF 6 was supported by substantial
    evidence and was not clearly erroneous. See Wilton, 116 Hawai#i
    at 119, 
    170 P.3d at 370
    ; Lawson, 103 Hawai#i at 19, 
    78 P.3d at 1167
    .
    (2) The State contends that the Circuit Court erred by
    concluding in COLs 14 and 187 that Lafradez's vehicle was not in
    violation of ROH § 15-14.1(a)(3), and also erred in COLs 18, 20,
    6
    In its oral ruling, the Circuit Court referenced Officer Watson's
    responses to defense counsel's cross-examination, as follows:
    Court will note that [Defense Counsel] specifically
    asked Officer Watson, Was the vehicle parked in the
    middle of the intersection? He said no. The vehicle was
    parked along -- was parked near or along the curb on Auld
    Lane facing south.
    [Defense Counsel] asked, Was it impeding traffic?
    Officer Watson said, No, it was not impeding traffic.
    [Defense Counsel] asked, Was it parked on the corners of the
    T-intersection? Officer Watson said no. [Defense Counsel]
    asked, Were there any red markings or any no-parking
    signs where the vehicle was parked? Officer Watson said
    no.
    7
    COLs 14 and 18 stated:
    14.   Therefore, the Court does not take Officer Watson at
    his word that there was a traffic violation, when the
    vehicle was blocking the intersection.
    . . . .
    18.   Based upon the testimony of Officer Watson and the
    evidence submitted, the Court finds that Officer
    Watson did not have reasonable suspicion or probable
    cause to approach the vehicle to investigate a parking
    violation on September 9, 2020 at 11:40 p.m.
    6
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    29, and 31,8 that Officer Watson did not have reasonable
    suspicion to approach the vehicle. This contention is without
    merit.
    A trial court's conclusions of law are freely
    reviewable on appeal under the "right/wrong" standard of review.
    Kaleohano, 99 Hawai#i at 375, 
    56 P.3d at 143
    . A COL that
    presents mixed questions of fact and law is reviewed under the
    clearly erroneous standard because the court's conclusions are
    dependent on the facts and circumstances of each individual case.
    State v. Rapozo, 123 Hawai#i 329, 336, 
    235 P.3d 325
    , 332 (2010)
    (citation omitted).
    As to COL 14, where the Circuit Court concluded that it
    "does not take Officer Watson at his word that there was a
    traffic violation," the Circuit Court correctly acknowledged its
    duty as the fact finder as to this disputed fact. See discussion
    supra.  The State does not present any argument to the contrary.
    As to COL 18, which contained the conclusion that
    Officer Watson did not have reasonable suspicion or probable
    cause to investigate a parking violation, the State argues the
    Circuit Court was wrong, based on Hawaii Revised Statutes (HRS)
    §§ 291C-1 (defining "intersection"), 291C-111 (parking
    prohibitions in a T-shaped intersection) and a diagram in its
    Opening Brief -- which the State claims all show that ROH § 15-
    8
    COLs 20, 29 and 31 stated:
    20.   Defendant was unlawfully seized within the meaning of
    the Fourth Amendment at the time Officer Watson
    approached him and looked into the vehicle.
    . . . .
    29.   The Court finds that Officer Watson had no reasonable
    suspicion or probable cause to approach the vehicle to
    investigate the traffic infraction based on the
    Court's analysis of the Revised Ordinances of
    Honolulu. Therefore, the totality of the evidence
    indicates that there was no reasonable suspicion or
    probable cause to investigate the traffic violation.
    . . . .
    31.   In the instant case, but for Officer Watson
    approaching and seizing Defendant without probable
    cause or reasonable suspicion, the resulting
    contraband would not have been discovered.
    7
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    14.1(d)(3) prohibits parking anywhere within the "I" areas marked
    on the diagram.9 The State argues that "the testimony of Officer
    Watson and the photographs introduced into evidence by Lafradez
    show that Lafradez was parked along the curb 'within' the top
    part of the T-intersection as illustrated by the area marked 'I'
    in the diagram." These arguments supra, citing to HRS §§ 291C-1,
    291C-111(a) and utilizing a diagram, were not made below.
    Instead, at the hearing and in its Memorandum in Opposition to
    the motion, the State argued that the "open view" or,
    alternatively, "plain view" exceptions applied to the seizure of
    Lafradez because there was sufficient evidence to prove
    reasonable suspicion for Officer Watson to approach the vehicle.
    We do not consider the State's newly raised arguments relying on
    HRS Chapter 291C statutes and on a diagram that is not part of
    the record on appeal. See State v. Moses, 102 Hawai#i 449, 456,
    
    77 P.3d 940
    , 947 (2003) ("As a general rule, if a party does not
    raise an argument at trial, that argument will be deemed to have
    been waived on appeal[.]"); State v. Hoglund, 
    71 Haw. 147
    , 150,
    
    785 P.2d 1311
    , 1313 (1990) ("Generally, the failure to properly
    raise an issue at the trial level precludes a party from raising
    that issue on appeal.") (citation omitted).
    COL 18's conclusion that there was no reasonable
    suspicion or probable cause for Officer Watson to approach and
    investigate the vehicle, is a mixed question of fact and law that
    is supported by the Circuit Court's findings that include FOF 6
    and COLs 16 and 17, discussed supra, and is not clearly
    erroneous. See Rapozo, 123 Hawai#i at 336, 
    235 P.3d at 332
    .
    COLs 20, 29, and 31 all explain and apply the Circuit Court's
    conclusion that Lafradez was unlawfully seized because there was
    no reasonable suspicion or probable cause to investigate a
    traffic infraction, and that the contraband was discovered
    because of the unlawful seizure. These COLs logically follow
    from COL 18 and are not wrong. Nor does the State present
    9
    A diagram of the intersection appears on page 10, in the Argument
    section of the Opening Brief. This diagram does not contain any record
    references as required by Hawai#i Rules of Appellate Procedure Rule 28(b)(7),
    and does not appear to be a part of the record. The State did not refer to or
    introduce this diagram into evidence at the suppression hearing.
    8
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    specific argument as to why these particular COLs are wrong.
    Therefore, the Circuit Court's conclusions that based on the
    evidence presented, there was no violation of ROH § 15-
    14.1(a)(3), and thus no reasonable suspicion justifying the
    seizure, were not wrong. See Kaleohano, 99 Hawai#i at 375, 
    56 P.3d at 143
    .
    (3) The State's final contention is that "[b]ecause
    Officer Watson had a reasonable suspicion to approach the
    [vehicle]," the Circuit Court erred in concluding in COLs 23, 24,
    26, 28, 31 and 32,10 that the "open view or plain view exceptions
    did not apply,"11 and the Circuit Court "erred in suppressing all
    10
    These COLs stated:
    23.   The Court finds that the open view exception does not
    apply to the instant case as the officers were not
    simply passersby on the sidewalk inadvertently observing
    contraband.
    24.   But for Officer Watson approaching and standing
    outside of the driver’s window on Auld Road, the area
    where he observed the baggy was not something that was
    knowingly exposed to the public.
    . . . .
    26.   Therefore, the open view exception does not apply.
    . . . .
    28.   The plain view exception does not apply to the instant
    case.
    . . . .
    31.   In the instant case, but for Officer Watson
    approaching and seizing Defendant without probable
    cause or reasonable suspicion, the resulting
    contraband would not have been discovered.
    32.   Therefore, as no exceptions apply and Defendant was
    seized without a warrant, the Court will order
    suppression of the use of evidence at trial that comes
    to light as a result of the exploitation of a previous
    illegal act of the police. See State v. Tominiko, 
    126 Haw. 68
    , 
    266 P.3d 1122
     (2011). Evidence of the baggy,
    containing 4.091 grams of methamphetamine, and any
    other items sought to be suppressed by the Defendant
    is suppressed.
    11
    For the "open view" exception to apply, the officer's observation
    must take place "from a non-intrusive vantage point." State v. Meyer, 
    78 Haw. 308
    , 313, 
    893 P.2d 159
    , 164 (1995) (citing State v. Kaaheena, 
    59 Haw. 23
    , 29,
    
    575 P.2d 462
    , 467 (1978)). Here, Officer Watson's observation did not occur
    from a non-intrusive vantage point because the observation occurred after
    (continued...)
    9
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    evidence" of the baggy. The arguments supporting the State's
    final contention of error are premised on the State's repeated
    contention that Officer Watson had reasonable suspicion and the
    seizure was justified –- a contention that we have already
    rejected supra. Because the State's challenges to COLs 23, 24,
    26, 28, 31 and 32 are all based on this rejected premise, they
    are also without merit.
    For the foregoing reasons, the Findings of Fact,
    Conclusions of Law, and Order Granting Defendant-Appellee Jorge
    Bailon Pascua Lafradez's Motion to Suppress Evidence, filed on
    May 11, 2021 by the Circuit Court of the First Circuit, is
    affirmed.
    DATED: Honolulu, Hawai#i, March 31, 2022.
    On the briefs:
    /s/ Keith K. Hiraoka
    Brian R. Vincent                   Associate Judge
    Deputy Prosecuting Attorney
    for Plaintiff-Appellant            /s/ Clyde J. Wadsworth
    Associate Judge
    Taryn R. Tomasa
    Deputy Public Defender             /s/ Karen T. Nakasone
    for Defendant-Appellee             Associate Judge
    11
    (...continued)
    Lafradez had already been illegally seized; thus, the Circuit Court correctly
    concluded that the "open view" exception did not apply in COLs 23, 24 and 26.
    See Kaleohano, 99 Hawai#i at 375, 
    56 P.3d at 143
    . For the "plain view"
    exception to apply, the officer's plain view observation must occur after an
    intrusion and the intrusion must be justified. Meyer, 78 Haw. at 314-15, 
    893 P.2d at 165-66
     (citation omitted). Here, Officer Watson's observation did not
    occur after an intrusion that was justified, but rather occurred during an
    unlawful seizure; thus, the Circuit Court correctly concluded that the "plain
    view" exception did not apply in COL 28. See Kaleohano, 99 Hawai#i at 375, 
    56 P.3d at 143
    .
    10