State v. Curtis.

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Electronically Filed
Supreme Court
SCWC-12-0000133
15-MAY-2017
08:21 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
JASON CURTIS and MELISSA HALL,
Petitioners/Defendants-Appellants,
and
GENEVIEVE WALKER, Respondent/Defendant-Appellee.
SCWC-12-0000133
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000133 and CAAP-12-0000134; CR. NO. 11-1-0016)
MAY 15, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
This case requires us to determine what information
must appear on the face of an “anticipatory” search warrant,
i.e., a warrant that cannot be executed until some expected
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future event occurs. This case arose when a FedEx employee
discovered marijuana in a package addressed to a residence on
Kaua#i. The Kaua#i Police Department (KPD) was contacted and
decided to conduct a controlled delivery of the package to the
address listed. They applied for a warrant to allow them to
search the premises upon completion of the delivery. However,
rather than listing this triggering condition, the warrant issued
by the district court instead authorized the KPD to conduct the
search “forthwith.”
The KPD completed the controlled delivery, and
Petitioners Jason Curtis and Melissa Hall were charged with drug
offenses based on evidence seized in the subsequent search.
Petitioners moved to suppress that evidence, arguing that the
anticipatory search warrant was invalid because it failed to list
the triggering condition. The circuit court denied Petitioners’
motion, and the Intermediate Court of Appeal (ICA) affirmed.
We are faced with a question of first impression for
this court: Does the Hawai#i Constitution require that an
anticipatory search warrant identify the triggering condition on
the face of the warrant? In light of the privacy protections
contained in article I, section 7 of the Hawai#i Constitution, we
hold that an anticipatory search warrant must, on its face,
identify the triggering condition to be valid. We therefore
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vacate the ICA’s February 23, 2016 Judgment on Appeal and the
circuit court’s denial of Petitioners’ motion to suppress
evidence seized pursuant to the unlawful search warrant, and
remand the case to the circuit court for proceedings consistent
with this Opinion.
I. Background
A. Anticipatory Search Warrant
On December 1, 2010, a FedEx employee at the Honolulu
FedEx sorting facility opened a parcel that he suspected
contained illegal narcotics. The parcel was addressed to
“Jennifer ROBERTSON” at a Kaua#i residential address (Subject
Premises). After discovering plastic bags in the parcel that
appeared to contain marijuana, the FedEx employee notified a Drug
Enforcement Administration (DEA) officer. The parcel and its
contents were subsequently turned over to the KPD. After testing
and weighing the suspected marijuana, the KPD determined that the
parcel contained approximately eight pounds of marijuana.
KPD Officer Paris Resinto applied for and obtained a
court order authorizing KPD officers to install in the parcel a
tracking device that would permit the KPD to track the location
of the parcel and determine when the parcel was opened. In
conjunction with obtaining the order for the tracking device,
Officer Resinto applied for an anticipatory search warrant to
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search the Subject Premises for the parcel and its contents,
including the tracking device.
Officer Resinto’s affidavit in support of the
anticipatory search warrant explained that (1) the KPD planned to
effect a controlled delivery of the parcel under police
surveillance to the Subject Premises to “identify the person(s)
involved in this illegal drug shipment”; (2) the KPD would
install the tracking device in the parcel; and (3) after the
tracking device was installed, Officer Resinto and KPD Sergeant
Darren Rose would maintain custody of the parcel until it was
delivered to the Subject Premises. The affidavit also
incorporated three documents by reference: a description of
Officer Resinto’s training and experience, the affidavit
supporting the application for the tracking device, and the order
granting the application.
The affidavit stated that Officer Resinto “has
reasonable grounds to believe that the property described herein
will be located in the [Subject Premises] after the time of
delivery of the suspect parcel and request that a search warrant
issue commanding that a search be made of said residence for said
property[.]” The affidavit also requested the issuance of a
search warrant to search the Subject Premises “within forty-eight
(48) hours after the time of delivery of the subject parcel[.]”
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On December 2, 2010, the district court1 issued an
“Anticipatory Search Warrant” based on Officer Resinto’s
affidavit, authorizing KPD officers to search the Subject
Premises for the parcel and its contents. The search warrant did
not set forth the triggering condition for the execution of
warrant, and it did not mention the controlled delivery of the
parcel described in Officer Resinto’s affidavit. Rather, the
search warrant stated:
Affidavit(s) having been made before me that the
property described herein may be found at the location
set forth herein and that it falls within the grounds
specified by said affidavit(s). And I am satisfied
that there is probable cause to believe that the
property described herein is located within the
property to be searched and that the foregoing grounds
for application for issuance of a search warrant
exist:
YOU ARE HEREBY COMMANDED forthwith to search:
[The Subject Premises]
(Emphases added.)
It also described the property to be searched and
stated that “[t]he search shall take place within 10 days of this
date.”
That same day, the KPD conducted a controlled delivery
of the parcel to the Subject Premises. Sergeant Rose approached
the Subject Premises and handed the parcel to Curtis, who carried
it inside the Subject Premises. Sergeant Rose also saw Hall and
1
The Honorable Trudy K. Senda presided.
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co-defendant Genevieve Walker. Officer Rose asked Walker if she
was “Jennifer Robertson,” the named addressee of the parcel.
Walker said yes and signed the FedEx delivery form. Sergeant
Rose left the Subject Premises and notified other KPD officers
participating in the investigation that the parcel had been
delivered.
About five minutes after the parcel had been delivered,
the tracking device alerted the KPD officers that the parcel had
been opened. In response, the KPD officers went to the Subject
Premises and executed the search warrant.
In executing the warrant, the officers observed Curtis,
Hall, and Walker and found the contents of the opened parcel,
including the marijuana, in various parts of the Subject
Premises. The officers recovered one of the bags of marijuana
from the parcel. The officers also recovered drug paraphernalia
and over $1,000 in cash.
B. Circuit Court Proceedings
On January 19, 2011, Curtis, Hall, and Walker were
charged with: (1) second-degree commercial promotion of
marijuana in violation of Hawai#i Revised Statutes (HRS) § 712-
1249.5(1)(a) and/or (b),2 (2) unlawful use of drug paraphernalia
2
HRS § 712-1249.5(1) (1989) provides in relevant part:
(continued...)
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in violation of HRS § 329-43.5(a),3 and (3) second-degree
promotion of a detrimental drug in violation of HRS § 712-
1248(1)(c).4
On February 17, 2011, Walker filed a “Motion to Quash
Search Warrant and Suppress Illegally Obtained Evidence and
Statements” (Suppression Motion), challenging the validity of the
warrant. Walker argued that the search warrant was invalid under
2
(...continued)
(1) A person commits the offense of commercial
promotion of marijuana in the second degree if the
person knowingly:
(a) Possesses marijuana having an aggregate
weight of two pounds or more;
(b) Distributes marijuana having an aggregate
weight of one pound or more[.]
3
HRS § 329-43.5(a) (1988) provides:
(a) It is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to
plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance
in violation of this chapter. Any person who violates
this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section
706-660 and, if appropriate as provided in section
706-641, fined pursuant to section 706-640.
4
HRS § 712-1248(1) (1989) provides in relevant part:
(1) A person commits the offense of promoting a
detrimental drug in the second degree if the person
knowingly:
. . . .
(c) Possesses one or more preparations, compounds,
mixtures, or substances, of an aggregate weight of one
ounce or more, containing any marijuana[.]
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article I, section 7 of the Hawai#i Constitution5 and under HRS §
803-316 because it did not contain a description of the
triggering condition on its face.
In support of her argument, Walker cited a depublished
ICA case, State v. Scott (Scott I), that set forth six
requirements for an anticipatory search warrant, including that
the warrant “authorizes a search only upon the occurrence of the
event generating the probable cause”; “authorizes a search only
within the probable life of the probable cause”; and is “executed
before the probable cause in fact expires.” 87 Hawai#i 80, 80-
81, 951 P.2d 1243, 1243-44 (1998).7 Walker argued that the
5
Article I, section 7 of the Hawai#i Constitution provides:
Searches, Seizures, and Invasion of Privacy.
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.
6
HRS § 803-31 (1998) provides:
A search warrant is an order in writing made by a
judge or other magistrate, directed to an officer of
justice, commanding the officer to search for certain
articles supposed to be in the possession of or which
are anticipated to be in the possession of one who is
charged with having obtained them illegally, or who
keeps them illegally, or with the intent of using them
as the means of committing a certain offense.
7
As a depublished case, Scott I has no precedential value and
cannot be cited. The citations refer to the related Hawai#i Supreme Court
case (Scott II) that depublished Scott I.
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warrant in this case did not meet these three requirements and
was therefore invalid. Curtis and Hall joined in Walker’s
Suppression Motion.
The State opposed the motion, arguing that the warrant
met the requirements set forth by the United States Supreme Court
in United States v. Grubbs, 547 U.S. 90 (2006). The State also
argued that the motion advocated a “hyper-technical warrant
reading,” even though “it is well-settled that a search warrant
and its support[] should be evaluated in totality, and examined
with common sense,” citing State v. Sherlock, 70 Hawai#i 271,
274, 768 P.2d 1290, 1293 (1989). The circuit court denied the
motion based on Grubbs, but also noted that the anticipatory
search warrant was “a very, very sloppy and apparently hastily
put together warrant.”
On October 10, 2011, the circuit court issued “Findings
of Fact, Conclusions of Law, and Order Denying [the Suppression
Motion].” The circuit court made the following relevant
Conclusions of Law:
. . . .
3. The State of Hawai#i has the authority to provide
constitutional protections to citizens above and
beyond that provided by the U.S. Constitution and the
U.S. Supreme Court, and has done so when the Hawai#i
Supreme Court has deemed necessary. State v. Kaluna,
55 Haw. 361, 367–69, 520 P.2d 51, 57–58 (1974).
4. The Hawai#i Supreme Court has, however, not
expanded on the constitutional protections provided by
the U.S. Constitution and U.S. Supreme Court with
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respect to anticipatory search warrants.
5. In accordance with controlling case law,
anticipatory search warrants need not contain future
tense anticipatory or triggering language where the
accompanying supporting affidavit adequately
demonstrates the anticipatory nature and intent of the
warrant itself. U.S. v. Grubbs, 547 U.S. 90, 126
S.Ct. 1494 (2006).
. . . .
7. This Court is bound to “pay great deference” to
the probable cause determination made by the issuing
judge, and is to employ “a common sense and realistic,
and not a hypertechnical reading of affidavits in
connection with the determination of probable cause.”
State v. Navas, 81 Hawai#i 29, 35 (Hawai#i App., 1995).
. . . .
9. Read in totality, the Anticipatory Search Warrant
at issue is in accordance with HRS Section 803–31 (as
amended effective April 29, 1998), and is not
constitutionally invalidated by present tense language
that appears on page one of the warrant. HRS Section
803–31[;] U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494(2006).
On February 6, 2012, Curtis and Hall entered
conditional no contest pleas to the amended charge of
first-degree promoting a detrimental drug, reserving the right to
appeal the circuit court’s order denying the Suppression Motion
and its subsequent order denying a motion to reconsider. On
February 8, 2012, Curtis and Hall were each sentenced to pay a
$5,000 fine and a $105 crime victim compensation fee.8
C. ICA Proceedings
Curtis and Hall appealed to the ICA, arguing that the
8
Pursuant to a plea agreement, the charges against Walker were
dismissed without prejudice. Walker was not a party to the ICA appeal.
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circuit court erred in denying their motion to suppress.
The ICA held that the anticipatory search warrant was
valid. State v. Curtis, 137 Hawai#i 43, 52, 364 P.3d 941, 950
(2015). First, the ICA determined that Hawai#i law is similar
enough to federal law to warrant applying Grubbs. The ICA noted
that both the Hawai#i Constitution and U.S. Constitution “only
require that the warrant particularly describe the place to be
searched and the persons or things to be seized; they do not
require that search warrants additionally ‘include a
specification of the precise manner in which they are to be
executed.’” Id. at 49, 364 P.3d at 947. Additionally, the ICA
asserted that both Federal Rules of Criminal Procedure (FRCP)
Rule 41 and Hawai#i Rules of Penal Procedure (HRPP) Rule 41 “do
not require that a copy of the search warrant be presented to the
property owner or others before the warrant is executed.” Id. at
50, 364 P.3d at 948. Given these similarities, the ICA concluded
that Grubbs applied, and accordingly, anticipatory search
warrants do not require triggering conditions to be valid.
The ICA then declined to follow its conclusion in Scott
I “that an anticipatory search warrant must itself state the
triggering condition to be valid.” Id. at 51, 364 P.3d at 949.
The ICA based its reasoning on Scott I’s lack of precedential
value, and the fact that Grubbs was issued after Scott I had been
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overruled by Scott II. Further, the ICA noted that the
subsequent amendments to HRS § 803-31 “did not impose any
specific conditions for a valid anticipatory search warrant.”
Id. at 51, 364 P.3d at 949.
Second, the ICA adopted the following test that had
been employed by other jurisdictions:
Although the triggering condition need not be stated
in the warrant itself . . . the following two
conditions must be satisfied for an anticipatory
search warrant that does not state the triggering
condition to be valid: (1) the officer’s affidavit
must specifically identify the triggering condition
for the execution of the warrant; and (2) this
triggering condition must be satisfied before the
warrant is executed.
Id. at 50, 364 P.3d at 948.
The ICA argued that if these conditions are met, “any
risk that an anticipatory search warrant would be executed
prematurely if the warrant fails to identify the triggering
condition is exceedingly low.” Id. at 49, 364 P.3d at 947.
The ICA then concluded that these conditions were
satisfied in this case. As to the first condition, the ICA found
that the “affidavit in support of the search warrant specifically
identified the triggering condition for the execution of the
warrant––the delivery of the parcel to the Subject Premises.”
Id. As to the second condition, the ICA found that “KPD waited
until the parcel had been delivered to the Subject Premises (and
the tracking device indicated the parcel had been opened) before
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executing the warrant.” Id. at 50, 364 P.3d at 949. The ICA
further contended that there was “no plausible risk” of premature
execution because law enforcement “would not be disposed to
undermine the success of their efforts by premature execution of
the warrant.” Id. (quoting Alvidres v. Superior Court, 90 Cal.
Rptr. 682, 686 (Cal. App. 1970)).
The ICA thus concluded that the anticipatory search
warrant was valid, and stated that its holding was in line with
the purposes underlying Hawaii’s exclusionary rule and the
primary purpose of the Hawai#i Constitution, “to safeguard the
privacy and security of individuals against arbitrary invasions
by government officials.” Id. at 51-52, 364 P.3d at 949-50.
Accordingly, the ICA affirmed the circuit court’s denial of the
Suppression Motion.
Petitioners timely sought certiorari review, presenting
the following three questions:
A. Does article I, section 7 of the Hawai#i
Constitution afford greater protections for
anticipatory search warrants than the 4th Amendment of
the U.S. Constitution?
B. Did the ICA gravely err in holding the right to
privacy in the Hawai#i Constitution does not require
the triggering event to be included in an anticipatory
search warrant?
C. Did the ICA gravely err in giving effect to a
search warrant that was based on an objectively false
finding by the issuing court that the alleged
contraband was, at the time of the issuance, located
on the subject premises?
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II. Standard of Review
A. Constitutional Law
This court reviews questions of constitutional law de
novo under the “right/wrong” standard and thus exercises its “own
independent judgment based on the facts of the case.” State v.
Jenkins, 93 Hawai#i 87, 100, 997 P.2d 13, 26 (2000) (internal
quotation marks and citation omitted).
III. Discussion
This case presents a question of first impression in
this court: Does the Hawai#i Constitution require that an
anticipatory search warrant identify the triggering condition?
We hold that it does.
A. Background on Anticipatory Search Warrants
1. The Scott Decisions
An anticipatory search warrant is “a warrant based upon
an affidavit showing probable cause that at some future time (but
not presently) certain evidence of crime will be located at a
specified place.” Grubbs, 547 U.S. at 94. Anticipatory warrants
generally seek authority to search after the occurrence of a
future event, referred to as the “triggering condition,” which is
often the delivery of a package containing contraband to the
premises to be searched. See id. “By definition, it is issued
before the necessary events have occurred which will allow a
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constitutional search of the premises; if those events do not
transpire, the warrant is void.” Scott II, 87 Hawai#i at 80 n.1,
951 P.2d at 1243 n.1 (citation and internal quotation marks
omitted).
In Scott, an undercover police officer delivered a
parcel known to contain drugs to the defendant, and shortly after
the delivery, the defendant was arrested pursuant to an
anticipatory search warrant. Scott II, 87 Hawai#i at 81, 951
P.2d at 1244. The triggering condition was not stated on the
face of the warrant. Id. at 83, 951 P.2d at 1246. The defendant
moved to quash the search warrant and suppress the evidence, and
the circuit court granted the motion. Id. at 82, 951 P.2d at
1245.
On appeal, the ICA concluded that an anticipatory
search warrant was constitutionally permissible if the warrant:
(1) is issued by an authorized judge based on probable
cause supported by oath or affirmation; (2) is based
on a clear showing, supported by oath or affirmation,
of law enforcement’s need to have the [anticipatory
search warrant] issued before the occurrence of the
event that will generate the probable cause; (3)
particularly describes the place to be searched and
the things to be seized; (4) authorizes a search only
upon the occurrence of the event generating the
probable cause; (5) authorizes a search only within
the probable life of the probable cause; and (6) is
executed before the probable cause in fact expires.
Id. at 83, 951 P.2d at 1246.
The ICA invalidated the warrant because it failed to
satisfy requirements (1), (4), and (5). Id. It determined that
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the warrant failed requirement (4) because “[n]otwithstanding
[the officer’s] averments in the affidavit that the search would
not be conducted until after delivery of the Federal Express
parcel, the Warrant failed to condition its execution upon actual
delivery of the parcel.” Id.In Scott II, this court, without addressing the
constitutionality of anticipatory search warrants, held that such
warrants were not permitted under the then-existing HRS § 803-31
(1993)9 and HRPP Rule 41(a) (1995)10. Id. at 81, 951 P.2d at
1244. This court reasoned that HRS § 803-31 authorized searches
of articles “supposed to be in the possession of the person whose
premises are to be searched.” Id. at 84, 951 P.2d at 1247(emphasis in original). We further reasoned that HRPP Rule 41
only authorized a judge to issue a search warrant “within the
9
HRS § 803-31 (1993) provided:
Search warrant; defined. A search warrant is an order
in writing made by a judge or other magistrate,
directed to an officer of justice, commanding the
officer to search for certain articles supposed to be
in the possession of one who is charged with having
obtained them illegally, or who keeps them illegally,
or with the intent of using them as the means of
committing a certain offense.
10
HRPP Rule 41(a) (1995) provided:
Authority to Issue Warrant. A search warrant
authorized by this rule may be issued by any district
or circuit judge within the circuit wherein the
property sought is located. Application therefor
should be made to a district judge wherever
practicable.
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circuit wherein the property sought is located.” Id. (quoting
HRPP Rule 41(a)) (emphasis in original). This court thus ordered
Scott I depublished without addressing the ICA’s six factors.
Id. at 85, 951 P.2d at 1248.
In response to Scott II, the legislature amended HRS
§ 803-31 to authorize the issuance of anticipatory search
warrants. 1998 Haw. Sess. Laws Act 65, § 1 at 145. The
amendment added the following phrase:
A search warrant is an order in writing made by a
judge or other magistrate, directed to an officer of
justice, commanding the officer to search for certain
articles supposed to be in the possession of or which
are anticipated to be in the possession of one who is
charged with having obtained them illegally, or who
keeps them illegally, or with the intent of using them
as the means of committing a certain offense.
Id. (emphasis added).11
2. United States v. Grubbs
Eight years after this court’s decision in Scott II,
the United States Supreme Court considered the permissibility of
anticipatory search warrants in Grubbs. In Grubbs, the defendant
purchased a videotape containing child pornography from a website
11
HRPP Rule 41(a) was amended in 1999 to state:
(a) Authority to issue warrant. Except as otherwise
provided by statute, a search warrant may be issued by
any district or circuit judge (1) within the circuit
wherein the property sought is located; or (2) within
the circuit where the property is anticipated to be
located. Application therefor should be made to a
district judge wherever practicable.
(Emphasis added.)
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operated by an undercover postal inspector. 547 U.S. at 92. The
Postal Service arranged a delivery to Grubbs, and the police
obtained an anticipatory search warrant that did not specify the
triggering condition. Id. Around thirty minutes into the
search, Grubbs was given a copy of the warrant, which did not
include the supporting affidavit that explained when the warrant
would be executed. Id. at 93. The search of Grubbs’ residence
led to the seizure of a number of items, including the videotape.
Id. Grubbs moved to suppress the evidence, arguing that the
warrant was invalid because it failed to name the triggering
event. Id. The District Court denied the motion. Id.On appeal, the Ninth Circuit reversed, holding that
“the particularity requirement of the Fourth Amendment[12] applies
with full force to the condition precedent to an anticipatory
search warrant.” United States v. Grubbs, 377 F.3d 1072, 1077
(9th Cir.) amended on denial of reh’g, 389 F.3d 1306 (9th Cir.
2004), rev’d, 547 U.S. 90 (2006). “The rationale for this rule
is simple: ‘a warrant conditioned on a future event presents a
12
The Fourth Amendment to the U.S. Constitution provides:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, 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.
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potential for abuse above and beyond that which exists in more
traditional settings: inevitably, the executing agents are
called upon to determine when and where the triggering event
specified in the warrant has actually occurred.’” Id. at 1078
(quoting Hotal, 143 F.3d at 1226). It therefore concluded:
Anticipatory search warrants are invalid absent
“clear, explicit, and narrow” triggering conditions.
See Hotal, 143 F.3d at 1226. Those triggering
conditions may be listed either in the warrant itself
or in attached documents, but whatever document
contains them must be presented to the person whose
property is being searched. Absent such presentation,
individuals would “stand [no] real chance of policing
the officers’ conduct,” because they would have no
opportunity to check whether the triggering events by
which the impartial magistrate has limited the
officers’ discretion have actually occurred.
Grubbs, 377 F.3d at 1079.
In short, the failure to include the triggering
conditions in the warrant or attach the affidavit to the warrant
was a fatal error that required that all evidence obtained during
that search be suppressed. Id. at 1079. Because the postal
inspectors “failed to present the affidavit––the only document in
which the triggering conditions were listed––to Grubbs or [his
wife],” the warrant was “inoperative, and the search was
illegal.” Id.The Supreme Court reversed the Ninth Circuit’s
judgment, holding that anticipatory search warrants are not per
se unconstitutional and that they do not require triggering
conditions to be included in the warrant itself. 547 U.S. at 94,
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97.
First, the Court held that anticipatory search warrants
are not categorically unconstitutional under the Fourth
Amendment, noting that “every Court of Appeals to confront the
issue” has held the same. Id. at 95. The Court explained that
ordinary warrants are “in a sense, ‘anticipatory’” because “the
magistrate’s determination that there is probable cause for the
search amounts to a prediction that the item will still be there
when the warrant is executed.” Id. With anticipatory warrants,
“the fact that the contraband is not presently located at the
place described in the warrant is immaterial, so long as there is
probable cause to believe that it will be there when the search
warrant is executed.” Id. at 96.
The Court reasoned that anticipatory warrants are
therefore “no different in principle from ordinary warrants”
because they both require a magistrate judge “to determine (1)
that it is now probable that (2) contraband, evidence of a crime,
or a fugitive will be on the described premises (3) when the
warrant is executed.” Id. (emphases in original).
The Court then held that the Fourth Amendment “does not
require that the triggering condition for an anticipatory search
warrant be set forth in the warrant itself.” Id. at 99. In
response to the Ninth Circuit’s conclusion regarding the Fourth
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Amendment particularity requirement, the Court responded that the
Fourth Amendment “specifies only two matters that must be
‘particularly describe[ed]’ in the warrant: ‘the place to be
searched’ and ‘the persons or things to be seized.’” Id. at
97-98.
The Court also rejected Grubbs’ two policy arguments.
First, Grubbs argued that it is necessary to include the
triggering condition in the warrant “to delineate the limits of
the executing officer’s power” because “if there is a
precondition to the valid exercise of executive power, that
precondition must be particularly identified on the face of the
warrant.” Id. at 98 (brackets omitted). The Court responded
that “[t]he Fourth Amendment does not require that the warrant
set forth the magistrate’s basis for finding probable cause, even
though probable cause is the quintessential ‘precondition to the
valid exercise of executive power.’” Id. Similarly, the court
stated that the Fourth Amendment does not require the warrant to
describe a triggering condition. Id.Second, Grubbs argued that the triggering condition
needed to be in the warrant to “assur[e] the individual whose
property is searched or seized of the lawful authority of the
executing officer, his need to search, and the limits of his
power to search.” Id. The Court responded that neither the
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Fourth Amendment nor FRCP Rule 41 requires the executing officer
to present a copy of the warrant to the property owner before
conducting the search. Id. at 99. The Court held that the
Constitution does not give property owners “license to engage the
police in debate over the basis for the warrant,” but protects
them by requiring that an impartial judicial officer issue the
warrant and by providing “a right to suppress evidence improperly
obtained and a cause of action for damages.” Id.Hence, because the Fourth Amendment does not require
the triggering condition to be set forth in the warrant itself,
the Court held that the Ninth Circuit erred in invalidating the
warrant at issue. Id.Justice Souter, joined by Justices Stevens and
Ginsburg, concurred in part and concurred in the judgment. Id.Justice Souter agreed that anticipatory search warrants are
constitutional and that the Ninth Circuit erred in invalidating
the warrant, but wrote separately to “qualify some points” made
by the Majority. Id. at 99-100. He agreed with the Majority’s
argument regarding the particularity requirement, but noted that
a warrant that does not specify a triggering condition can lead
to “several untoward consequences with constitutional
significance.” Id. at 100. First, “a warrant that fails to tell
the truth about what a magistrate authorized cannot inform the
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police officer’s responsibility to respect the limits of
authorization,” a danger with real significance if the warrant is
not executed by the same official who applied for it. Id.Second, Justice Souter stated that an incomplete
anticipatory warrant does not address an owner’s interest in “an
accurate statement of the government’s authority to search
property.” Id. at 101. He noted that the right to inspect a
warrant prior to a search has not yet been determined. Id.However, “if a later case holds that the homeowner has a right to
inspect the warrant on request, a statement of the condition of
authorization would give the owner a right to correct any
misapprehension on the police’s part that the condition had been
met when in fact it had not been.” Id.B. Anticipatory Search Warrants Are Not Categorically
Unconstitutional
As discussed above, Grubbs held that anticipatory
search warrants are constitutional under the Fourth Amendment,
noting that “every Court of Appeals to confront the issue” has
held the same. 547 U.S. at 95. Further, the Hawai#i
legislature’s response to Scott II was to amend HRS § 803-31 to
give judges the authority to issue anticipatory search warrants.
Shortly thereafter, this court amended HRPP Rule 41 to permit
anticipatory search warrants.
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However, this court has never explicitly ruled on
whether anticipatory search warrants are permitted under article
I, section 7 of the Hawai#i Constitution. See Scott II, 87
Hawai#i at 81, 951 P.2d at 1243 (disposing of the case “[w]ithout
addressing the constitutionality of an [anticipatory search
warrant]”). Thus, we address this threshold question before
considering whether the Hawai#i Constitution requires triggering
conditions to be on the face of an anticipatory search warrant.
We hold that anticipatory search warrants are valid
under the Hawai#i Constitution when supported by probable cause
because they are consistent with the requirements of article I,
section 7, and they incentivize police officers to obtain
warrants prior to conducting searches.
First, article I, section 7 does not contain any
language specifying the time at which a warrant should issue. It
states:
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.
The Hawai#i Constitution thus requires that warrants be
based on probable cause and particularly describe the place to be
searched and property to be seized. See State v. Woolsey, 71
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Haw. 638, 640, 802 P.2d 478, 479 (1990). Anticipatory warrants
satisfy these conditions--even if probable cause will not arise
until some future event.
Second, the probable cause analysis is conceptually “no
different in principle” for anticipatory search warrants because
they still require a neutral judge to determine “(1) that it is
now probable that (2) contraband, evidence of a crime, or a
fugitive will be on the described premises (3) when the warrant
is executed.” Grubbs, 547 U.S. at 96 (emphases in original).
With either ordinary warrants or anticipatory search warrants,
the judge must review the sworn affidavits to determine whether,
at the time of the search, the items to be seized will be “in the
possession of one who is charged with having obtained them
illegally, or who keeps them illegally, or with the intent of
using them as the means of committing a certain offense.” HRS §
803-31. Thus, “when a government official presents independent
evidence indicating that delivery of contraband will, or is
likely to, occur, and when the magistrate conditions the warrant
on that delivery, there is sufficient probable cause to uphold
the warrant.” United States v. Garcia, 882 F.2d 699, 702 (2d
Cir. 1989). Also, anticipatory search warrants may make it more
likely that the items to be seized will be at the specified
location at the time of the search because they are based on the
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future occurrence of identified events, not “solely upon the
known prior location of the items to be seized.” Commonweath v.
Soares, 424 N.E.2d 221, 224 (Mass. 1981).
Third and finally, anticipatory search warrants
incentivize police officers to obtain approval from a neutral
judge prior to searching private premises. Given “the speed with
which government agents are required to act, especially when
dealing with the furtive and transitory activities of persons who
traffic in narcotics,” police often have to decide whether to
“proceed without a warrant or risk losing both criminal and
contraband.” Garcia, 882 F.2d at 703.
The purposes of article 1, section 7 of the Hawai#i
Constitution are better served by incentivizing officers to
obtain warrants in advance “because a neutral judge, rather than
a police officer acting in the heat of the moment, makes the
critical determination of whether probable cause for a search
exists.” People v. Carlson, 708 N.E.2d 372, 375-76 (Ill. 1999).
By requiring neutral judges to determine whether known facts
legally justify a search prior to the search taking place,
anticipatory search warrants decrease the chance that a citizen
will be subject to an unreasonable search, seizure, or invasion
of privacy.
Thus, we hold that anticipatory search warrants do not
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violate the Hawai#i Constitution because they are consistent with
the requirements and purposes of article 1, section 7.13
C. Triggering Conditions Must Be Identified in the Anticipatory
Search Warrant
Grubbs held that the Fourth Amendment “does not require
that the triggering condition for an anticipatory search warrant
be set forth in the warrant itself.” 547 U.S. at 99. However,
Grubbs does not dispose of this case. As correctly noted by
Petitioners, “‘[A]rticle I, section 7 of the Hawai#i
Constitution’ provides a ‘more extensive right of privacy . . .
than that of the United States Constitution.’” Accordingly, we
may provide broader protections if required by the relevant
constitutional provisions and our case law interpreting those
provisions. State v. Lopez, 78 Hawai#i 433, 445, 896 P.2d 889,
901 (1995) (“[I]t is well-established that as long as we afford
defendants the minimum protection required by the federal
constitution, we are free to provide broader protection under our
state constitution.”).
13
This holding is consistent with the vast majority of state courts
who have addressed this issued. See Norma Rotunno, Validity of anticipatory
search warrants––state cases, 67 A.L.R.5th 361 Art. II, § 3 (originally
published in 1999, updated weekly) (collecting cases). These include states
that have privacy rights in their state constitutions, similar to those
enumerated in the Hawai#i Constitution. See, e.g., Johnson v. State, 617 P.2d
1117, 1124 (Alaska 1980); State v. Cox, 522 P.2d 29, 34 (Ariz. 1974); People
v. Shapiro, 37 Cal. App. 3d 1038, 1042 (2d Dist. 1974); People v. Sousa, 18
Cal. App. 4th 549, 557 (1st Dist. 1993); Bernie v. State, 524 So.2d 988, 991
(Fla. 1998); People v. Carlson, 708 N.E.2d 372, 376 (Ill. 1999).
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Unlike the U.S. Constitution, the Hawai#i Constitution
contains “a specific provision expressly establishing the right
to privacy as a constitutional right” in article 1, section 6.14
State v. Mallan, 86 Hawai#i 440, 448, 950 P.2d 178, 186 (1998)
(emphases in original). Further, unlike the Fourth Amendment,
article 1, section 7 recognizes a right “against unreasonable . .
. invasions of privacy,” which “protects people from unreasonable
government intrusions into their legitimate expectations of
privacy.” Navas, 81 Hawai#i at 122, 913 P.2d at 48. This
provision was “designed to protect the individual from arbitrary,
oppressive, and harassing conduct on the part of government
officials.” Id. (quoting Nakamoto v. Fasi, 64 Haw. 17, 23, 635
P.2d 946, 952 (1981)).
We have often recognized broader protections “[i]n the
area of searches and seizures under article I, section 7” than
our federal counterparts. Lopez, 78 Hawai#i at 445, 896 P.2d at
901. This is because article I, section 7 is “enforceable by a
rule of reason which requires that governmental intrusions into
the personal privacy of citizens of this State be no greater in
intensity than absolutely necessary.” Id. at 446, 896 P.2d at
14
Article 1, section 6 of the Hawai#i Constitution provides:
The right of the people to privacy is recognized and
shall not be infringed without the showing of a
compelling state interest. The legislature shall take
affirmative steps to implement this right.
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902 (quoting Kaluna, 55 Haw. at 369, 520 P.2d at 58–59) (emphasis
in original).
To ensure that governmental intrusions into citizens’
privacy is no greater than absolutely necessary, we hold that an
anticipatory search warrant must itself identify the triggering
condition.
We find the reasoning of the Ninth Circuit Court of
Appeals in a pre-Grubbs case, United States v. Hotal, 143 F.3d
1223 (9th Cir. 1998), to be persuasive. Faced with the same
question presented here, the Ninth Circuit held that “when a
warrant’s execution is dependent on the occurrence of one or more
conditions, the warrant itself must state the conditions
precedent to its execution and these conditions must be clear,
explicit, and narrow.” Id. at 1226. It explained that
anticipatory search warrants present a unique potential for
abuse:
[A] warrant conditioned on a future event presents a
potential for abuse above and beyond that which exists
in more traditional settings: inevitably, the
executing agents are called upon to determine when and
whether the triggering event specified in the warrant
has actually occurred. Consequently, magistrates who
are asked to issue such warrants must be particularly
vigilant in ensuring that the opportunities for
exercising unfettered discretion are eliminated.
Id. at 1226-27 (quoting United States v. Ricciardelli, 998 F.2d
8, 12 (1993)).
The Ninth Circuit explained that triggering conditions
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serve the important role of “ensur[ing] that all parties [are]
advised when the search may first take place, and the conditions
upon . . . which the search is authorized and may lawfully be
instituted.” Id. at 1227. In this way, triggering conditions
are similar to the particularity requirements, as both serve to
“ensur[e] that the discretion of the officers executing the
warrant is limited” and to “inform[] the person subject to the
search of what items are authorized to be seized.” Id. at 1227.
Thus, the court stated that the warrant’s identification of the
triggering condition “is not merely ‘efficient’ or preferable,”
but is “the only way effectively to safeguard against
unreasonable and unbounded searches.” Id.
We agree with the reasoning in Hotal that the
triggering condition must appear on the face of the warrant to
ensure that the executing officer does not exceed the scope of
the warrant. As the Grubbs concurrence explained, “a warrant
that fails to tell the truth about what a magistrate authorized
cannot inform the police officer’s responsibility to respect the
limits of authorization[.]” 547 U.S. at 100 (Souter, J.,
concurring). It is particularly important that anticipatory
search warrants clearly inform executing officers about
triggering conditions because the triggering condition is
integral to the judge’s probable cause finding. Scott II, 87
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Hawai#i at 80 n.1, 951 P.2d at 1243 n.1 (citation omitted) (“By
definition, [an anticipatory search warrant] is issued before the
necessary events have occurred which will allow a constitutional
search of the premises; if those events do not transpire, the
warrant is void.”).
Anticipatory warrants’ potential for abuse “assum[es]
real significance when the warrant is not executed by the
official who applied for it and happens to know the unstated
condition.” Grubbs, 547 U.S. at 100 (Souter, J., concurring).
If the officer who executes the warrant is different from the
officer who applied for the warrant, the executing officer may
“simply take[] such a warrant on its face and make[] the
ostensibly authorized search before the unstated condition has
been met,” thereby subjecting a private citizen to an
unreasonable search. Id. at 100-01.
Further, as the Grubbs concurrence noted, a warrant
that does not provide notice of the triggering condition
adversely impacts “an owner’s interest in an accurate statement
of the government’s authority to search property.” 547 U.S. at
101 (Souter, J., concurring). HRPP Rule 41(d) requires that
“[t]he officer taking property under the warrant shall give to
the person from whom or from whose premises the property was
taken a copy of the warrant and a receipt for the property taken
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or shall leave the copy and receipt at the place from which the
property was taken.” Consistent with this requirement, a
warrant’s clear identification of the triggering condition
“reliably ‘assures the individual whose property is searched or
seized of the lawful authority of the executing officer, his need
to search, and the limits of his power to search.” Grubbs, 547
U.S. at 101 (quoting United States v. Chadwick, 433 U.S. 1, 9
(1977)) (Souter, J., concurring).
This holding is consistent with the purposes underlying
Hawaii’s exclusionary rule: judicial integrity, protection of
individual privacy, and deterrence of illegal police misconduct.
See State v. Torres, 125 Hawai#i 382, 394, 262 P.3d 1006, 1018
(2011). Requiring triggering conditions in anticipatory warrants
deters executing officers from conducting a search prior to the
occurrence of the triggering condition and thereby acting beyond
the scope of the authority granted of the judge. By extension,
this protects individual privacy by preventing unreasonable,
arbitrary searches. Lastly, this holding will enhance judicial
integrity by preventing courts from “placing their imprimatur on
evidence that was illegally obtained” pursuant to a
constitutionally-deficient warrant. Id. at 395, 262 P.3d at 1019(citation omitted).
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IV. Conclusion
For the foregoing reasons, we hold that anticipatory
search warrants must identify the triggering condition.
Accordingly, the ICA’s February 23, 2016 judgment on appeal
affirming the circuit court’s denial of Petitioners’ suppression
motion is vacated, and the case is remanded to the circuit court
for proceedings consistent with this opinion.
Daniel Hempey /s/ Mark E. Recktenwald
for petitioner Hall
/s/ Paula A. Nakayama
Michelle Premeaux
for petitioner Curtis /s/ Sabrina S. McKenna
Tracy Murakami /s/ Richard W. Pollack
for respondent
/s/ Michael D. Wilson
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