State v. Rodrigues.Â

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Electronically Filed
Supreme Court
SCWC-30692
12-OCT-2012
02:30 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellant,
vs.
MARCO RODRIGUES, Petitioner/Defendant-Appellee.
NO. SCWC-30692
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30692; CR. NO. 08-1-0293)
October 12, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
AND CIRCUIT JUDGE TO#OTO#O, ASSIGNED DUE TO VACANCY
OPINION OF THE COURT BY ACOBA, J.
We hold that the circuit court of the fifth circuit
(the court) properly suppressed the evidence obtained by
Respondent/Plaintiff-Appellant State of Hawai#i (Respondent)
during the unlawful search of Petitioner/Defendant-Appellee Marco
Rodrigues (Petitioner) because Respondent failed to “present
clear and convincing evidence that [the] evidence obtained in
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violation of article I, section 7 [of the Hawai#i Constitution],1
would inevitably have been discovered by lawful means[,]” State
v. Lopez, 78 Hawai#i 433, 451, 896 P.2d 889, 907 (1995). Hence
the evidence was not admissible under the inevitable discovery
exception to Hawai#i’s exclusionary rule. We therefore vacate
the April 3, 2012 judgment of the Intermediate Court of Appeals
(ICA) to the contrary, filed pursuant to its March 19, 2012
Amended Memorandum Opinion (mem. op.),2 vacating and remanding
the August 5, 2010 Findings of Facts, Conclusions of Law and
Order Granting Defendant’s Motion to Suppress Evidence filed by
the court, and we remand to the court for further proceedings
consistent with this opinion.
I.
A.
On November 23, 2008, Officer Scott Williamson
(Officer Williamson or the officer) was at Hanamaulu Beach Park
and saw Petitioner sleeping in a vehicle that had an expired
safety sticker. Officer Williamson approached the vehicle and
requested that Petitioner furnish his license and registration.
1
Article I, section 7 of the Hawai#i Constitution provides as
follows:
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.
2
The opinion was filed by Chief Judge Craig H. Nakamura, joined by
the Honorable Alexa D.M. Fujise. The Honorable Lawrence M. Reifurth filed a
dissenting opinion.
2
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Petitioner was unable to produce any identification but verbally
identified himself. The officer learned from dispatch that
Petitioner had three outstanding bench warrants for contempt of
court so he placed Petitioner under arrest.
Officer Williamson apparently handcuffed petitioner,
although it is not clear whether his hands were in front of or
behind him.3 The officer then searched Petitioner “from top to
bottom” and “pulled [out Petitioner’s] pockets from the outside
looking for any weapons or means of escape, needles, razor
blades, strong fishing line, . . . [or] matches.” When Officer
Williamson pulled out Petitioner’s left pocket, he discovered a
plastic baggie containing methamphetamine (hereinafter,
methamphetamine). Officer Williamson placed Petitioner under
arrest and transported him to the cellblock at a Kaua#i Police
Department (KPD) station. Prior to placing Petitioner in the
cellblock, Officer Williamson conducted an inventory search of
Petitioner.4
3
Although the court found that Petitioner was arrested and
handcuffed, there was no testimony presented in this case supporting the
court’s finding in this respect. However, in the declaration attached to
Petitioner’s Motion to Suppress, Petitioner’s counsel declared that Officer
Williamson placed handcuffs on Petitioner after arresting him.
4
This court has described the parameters of an inventory search as
follows:
[T]he police have full authority to prohibit the entry of
weapons, drugs or other potentially harmful items into jail.
To this end, they may require internees to surrender any
possible repositories for such items prior to incarceration.
However, a concomitant of this wide authority to prohibit
the entry of personal belongings which may harbor forbidden
contents is a complete absence of authority to conduct a
general exploratory search of the belongings themselves.
(continued...)
3
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B.
1.
On November 25, 2008, Petitioner was charged by
complaint5 with Promoting a Dangerous Drug in the Third Degree,
Hawai#i Revised Statutes (HRS) § 712-1243.6 Prior to trial,
Petitioner filed a motion to suppress seeking to preclude
Respondent from introducing the methamphetamine recovered from
him into evidence. Petitioner argued that the methamphetamine
could not be introduced because it was obtained during a
warrantless search of his pockets, in violation of Article 1,
section 7 of the Hawai#i Constitution and the Fourth7 and
4
(...continued)
This absence of authority derives from the lack of any
justification for such a further search inherent in the
exception itself. Once the internee has turned over his [or
her] possessions for safekeeping it is no longer possible
that he [or she] may take them into jail.
State v. Kaluna, 55 Haw. 361, 373-74, 520 P.2d 51, 61 (1974) (footnote
omitted).
5
The complaint was originally filed in the District Court of the
Fifth Circuit. The case was committed from the district court to the court on
December 1, 2008.
6
HRS § 712-1243 (Supp. 2008) provides as follows:
§ 712-1243. Promoting a dangerous drug in the third
degree. (1) A person commits the offense of promoting a
dangerous drug in the third degree if the person knowingly
possesses any dangerous drug in any amount.
(2) Promoting a dangerous drug in the third degree is
a class C felony.
7
The Fourth Amendment of the United States 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.
4
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Fourteenth Amendments of the United States Constitution.8
Petitioner argued that the warrantless search and
seizure was not justified as a search incident to lawful arrest
because such a search “‘is limited in scope to a situation where
it is reasonably necessary to discover the fruit or
instrumentalities of the crime for which the defendant is
arrested, or to protect the officer from attack, or to prevent
the offender from escaping.’” (Quoting State v. Enos, 68 Haw.
509, 720 P.2d 1012 (1986).) (Emphasis omitted.) In addition,
Petitioner maintained that the search was not necessary to
protect Officer Williamson because the search occurred after he
was handcuffed and the officer did not conduct a pat-down search
of Petitioner’s person. Thus, Petitioner urged that Officer
Williamson would have had no reason to believe Petitioner was
concealing any contraband.
In its memorandum in opposition to Petitioner’s motion
to suppress, Respondent asserted that regardless of the nature of
8
This court has held that a search and seizure incident to lawful
arrest is an exception to the warrant requirement under the Hawai#i
Constitution. With respect to Petitioner’s challenge to the search and
seizure in this case, it must be noted that “state courts are absolutely free
to interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). Thus, “[i]f a state
court chooses merely to rely on federal precedents as it would on the
precedents of all other jurisdictions, then it need only make clear by a plain
statement in its judgment or opinion that the federal cases are being used
only for the purpose of guidance, and do not themselves compel the result that
the court has reached.” Michigan v. Long, 463 U.S. 1032, 1041 (1983). The
federal cases herein are used only to provide guidance as to the issues raised
by Petitioner. Therefore, this case is not decided under the Fourth and
Fourteenth Amendments of the United States Constitution. Article I, section 7
of the Hawai#i Constitution as opposed to federal law compels the result
reached herein.
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the crime, “it is per se reasonable for the arresting officer to
conduct a warrantless pat-down search of a limited nature prior
[to] or after arrest and before transport.” (Citing State v.
Reed, 70 Haw. 107, 762 P.2d 803 (1988).) Such searches incident
to lawful arrest, Respondent maintained, are intended to afford
an arresting officer the opportunity to recover weapons or other
means of escape, or other evidence that might be lost as a result
of concealment or destruction. (Citing State v. Paahana, 66 Haw.
499, 666 P.2d 592 (1983).) Thus, Respondent urges that Officer
Williamson’s practice constituted a valid search incident to
arrest.9
Alternatively, Respondent argued that the search was
justified under the inevitable discovery exception to the
exclusionary rule which provides that evidence recovered from an
otherwise illegal search need not be suppressed “if the evidence
would have been ‘inevitably discovered’ by the police via lawful
means.” (Citing Lopez, 78 Hawai#i at 433, 896 P.2d at 889.)
Respondent maintained that because all arrestees are subjected to
a pre-incarceration custodial search during which their pockets
are checked for drugs and weapons, Petitioner’s pockets would
have been searched and the evidence discovered prior to
Petitioner being placed in the cellblock.
9
As discussed herein, the ICA decided this argument in Petitioner’s
favor in Respondent’s first appeal. See State v. Rodrigues, 122 Hawai#i 229,
233, 236, 225 P.3d 671, 675, 678 (App. 2010) (Rodrigues I). Respondent did
not file an application for writ of certiorari contesting this ruling.
6
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2.
The court held a hearing on Petitioner’s motion to
suppress on March 3, 2009. At the hearing, Officer Williamson
testified that he pulled Petitioner’s pockets out from the
outside “rather than just patting the outside of the pockets[,]”
because “[i]f there [was] any kind of needle or sharp object in
there, [he would] run the risk of cutting [his] hand through the
clothing.” He also related that prior to placing Petitioner in
the cellblock, he conducted an inventory search which he
explained “insure[s] that there is no contraband taken into [the]
cell block, no weapons or dangerous instruments [are] taken in,
for the safety of all the cell block personnel, as well as the
safety of the suspect.” He further stated that during this
process the arrestee’s pockets are searched.
Sergeant Eric Kaui (Sergeant Kaui) also testified on
Respondent’s behalf regarding the policies and procedures for
conducting an inventory search. Sergeant Kaui explained that as
part of the inventory search, the officer conducts a thorough
search of the arrestee, including all of the arrestee’s clothing.
On March 17, 2009, the court entered its Finding of
Facts, Conclusions of Law and Order Granting Petitioner’s Motion
to Suppress (First Suppression Order).
B.
Respondent appealed to the ICA arguing that the court
erred in: (1) concluding based on Enos that the inevitable
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discovery rule was inapplicable; (2) rejecting application of the
rule without entering any findings upon which its rejection was
based; and (3) concluding that Respondent failed to establish by
clear and convincing evidence that the methamphetamine was
admissible pursuant to the rule. Rodrigues I, 122 Hawai#i at
233, 225 P.3d at 675.
As to (1), the ICA10 stated that although, under Enos,
Officer Williamson’s search of Petitioner’s pockets was not a
valid search incident to lawful arrest, the court failed to
consider whether the inevitable discovery rule established in
Lopez applied. Id. at 236, 225 P.3d at 678.
As to (2), the ICA agreed that the court failed to
enter any findings regarding Respondent’s inevitable discovery
argument. Id. The ICA determined that the court’s failure
constituted error in light of Hawai#i Rules of Penal Procedure
(HRPP) Rule 12(e), which requires the court to “state its
essential findings on the record” “[w]here factual issues are
involved in determining a motion[.]”
As to (3), the ICA noted that although Respondent
presented the testimony of Officer Williamson and Sergeant Kaui
to support its inevitable discovery argument, the court made no
findings regarding the credibility of the officers or the weight
10
The opinion in Petitioner’s first appeal was filed by Chief Judge
Craig H. Nakamura, the Honorable Katherine G. Leonard, and the Honorable Alexa
D.M. Fujise.
8
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to be given to their testimony in light of the other evidence
presented. Id. at 238, 225 P.3d at 680.
The ICA thus vacated the First Suppression Order and
remanded to the court for entry of findings and conclusions
regarding whether Respondent met its burden of establishing by
clear and convincing evidence that the methamphetamine would have
been inevitably discovered. Id.II.
A.
Following remand, the court held hearings on June 15,
2010, June 29, 2010, and July 6, 2010. On July 26, 2010,
Respondent filed a supplemental memorandum in support of applying
the inevitable discovery rule (supplemental memo).
On August 5, 2010, the court filed its Findings of
Fact, Conclusions of Law and Order Granting Petitioner’s Motion
to Suppress Evidence (Second Suppression Order). The court
entered essentially the same findings that were set forth in the
First Suppression Order, except for finding 9. The court’s
findings were as follows:
1. On November 28, 2008 at approximately 7:54 a.m.,
[Officer Williamson] saw [Petitioner] sleeping in a silver
two-door Hyundai at Hanamalu Beach Park.
2. Officer Williamson noticed that the safety check and
vehicle registration stickers were expired on the vehicle.
3. Officer Williamson woke [Petitioner] and asked him for
identification.
4. [Petitioner] could not provide Officer Williamson any
identification or information pertaining to the vehicle.
5. Officer Williamson called police dispatch to request
any information on [Petitioner].
6. Officer Williamson discovered that [Petitioner] had
three outstanding bench warrants and handcuffed him.
7. Officer Williamson conducted a pat-down search on
[Petitioner’s] torso but when he got to [Petitioner’s]
9
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shorts, Officer Williamson turned the pockets inside out.
8. Officer Williamson testified that for his safety it
was his practice that when he conducts a search of an
arrestee he pulls out the arrestee’s pockets from the top
rather than doing a pat-down search.
9. Officer Williamson testified that he had no reason to
believe that [Petitioner] was concealing weapons, drugs,
contraband, or needles.
10. As Officer Williamson turned [Petitioner’s] left
shorts’ pocket inside out, he found a clear [plastic] baggie
that contained a crystal-like substance in [Petitioner’s]
left front pocket.
11. Officer Williamson placed [Petitioner] in his police
vehicle and transported him to [a cellblock.]
(Emphases added.) The court’s conclusions 1 through 4 were also
essentially the same as the conclusions set forth in the First
Suppression Order. The court entered new conclusions 5 through
11:
1. [The] Fourth Amendment to the United States
Constitution protects the rights of citizens to be free from
unreasonable searches and seizures.
2. Article I, Section 7 of the Hawaii Constitution is
identical to the Fourth Amendment to the United States
Constitution.
3. Officer Williamson was entitled to a pat-down search
but he was not authorized to remove the [methamphetamine]
from [Petitioner’s] pocket unless he had reason to believe
that the items felt [were] fruits or instrumentalities of
the crime for which [he was] arrested, or to protect the
officer from attack, or to prevent the offender fr4om
escaping. [Enos, 68 Haw. at 511, 720 at 1014].
4. Any warrantless search or seizure is presumed to be
illegal and the burden always rests with the government to
prove that such actions fall within a specifically
established and well-delineated exception to the warrant
requirement. [Ortiz, 67 Haw. at 181, 683 P.2d at 822].
5. One [] exception [to the warrant requirement] is the
inevitable discovery rule adopted by the Hawaii Supreme Court in
1995 in [Lopez, 78 Haw. at 433, 896 P.2d 889].
6. Regarding the inevitable discovery rule, the Hawaii
Supreme Court “requires the prosecution to present clear and
convincing evidence that any evidence obtained in violation
of article I, section 7 of the Hawai#i Constitution would
inevitably have been discovered by lawful means before such
evidence may be admitted under the inevitable discovery
rule.” [Lopez, 78 Haw. at 451, 896 P.2d at 889].
7. The Hawaii Supreme Court further noted that “clear and
convincing evidence means evidence that will produce in the
mind of a reasonable person a firm belief as to the facts
sought to be established.” Id.
8. The inevitable discovery rule is not applicable
because [Respondent] failed to produce clear and convincing
evidence which would demonstrate that [Petitioner] was
incapable of retrieving and discarding the contraband from
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his person without an officer’s notice between the time of
his arrest and the inventory search and that the evidence
would have been inevitably discovered.
9. Officer Williamson failed to testify that [Petitioner]
was retrained in such as way as to make him incapable of
discarding the [plastic] baggie from his pocket between the
time of his arrest and the inventory search had the
[plastic] baggie not been obtained via Officer Williamson’s
illegal search.
10. [Respondent] did not present any evidence that Officer
Williamson or another officer continuously observed
[Petitioner] after being handcuffed or that Officer
Williamson [n]ever left [Petitioner] unattended.
11. Additionally, unlike the defendant in [Silva, 91 Haw.
at 111, 979 P.2d at 1137, Petitioner] never testified or
acknowledged that he was unable to retrieve the contraband
after being handcuffed.
(Internal quotation marks and brackets omitted.) (Emphases
added.) The court again ordered the methamphetamine suppressed
and precluded its use at Petitioner’s trial.
III.
A.
Respondent appealed once again. In the second appeal,
Respondent argued to the ICA that the court erred in (1) failing
to make findings regarding the events that occurred after
Petitioner was placed in the police transport vehicle and
relevant to the inevitable discovery doctrine; (2) finding that
Petitioner could have discarded the methamphetamine before the
inventory search, although no evidence to that effect was
adduced, and there was testimony that the methamphetamine would
have been discovered during a routine inventory search; (3)
concluding that the instant case is distinguishable from Silva
because Petitioner did not testify that he was unable to retrieve
the methamphetamine from his pocket after being handcuffed,
although Petitioner’s whereabouts were unknown at the time of
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remand; (4) concluding Respondent failed to present clear and
convincing evidence that the methamphetamine would not have been
inevitably discovered during the inventory search. State v.
Rodrigues, No. 30692, 2012 WL 917514, at *3 (App. Mar. 19, 2012)
(Rodrigues II).
The ICA majority stated that the court “did not make
factual findings regarding the events relevant to the issue of
inevitable discovery” and instead, “appeared to require, as a
matter of law, that evidence excluding other possible scenarios
be presented by the prosecution (i.e., requiring the prosecution
to negate any possibility that the defendant could discard the
contraband without detection) in order to carry its burden of
proof.” Id. at *5. The ICA majority “decline[d] to endorse such
a requirement, absent any evidence that those alternative
scenarios could reasonably have occurred.” Id.
In the view of the ICA majority, Respondent presented
clear and convincing evidence that the methamphetamine would have
been discovered during the inventory. Id. The ICA majority
ordered the Second Suppression Order vacated and the case
remanded for trial. Id.
B.
A dissenting opinion was filed by Judge Reifurth
(hereinafter, “ICA dissent”). First, the dissent disagreed that
the court did not make factual findings relating to the issue of
inevitable discovery. Id. According to the dissent, the court
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added finding 9, and conclusions 9, 10, and 11,11 all of which
related to its conclusion that the inevitable discovery did not
apply in this case.
Next, the ICA dissent pointed out that, “as it must in
an inevitable-discovery case,” Respondent “relied . . . on a
hypothetical[,]” i.e., that the methamphetamine would have been
discovered during the inventory search. Id. at *7. But, because
“[u]nder the inevitable discovery exception, ‘the privacy rights
of the citizens of the State of Hawai#i may turn upon the outcome
of the hypothetical[,]” the ICA dissent maintained “it is
‘incumbent upon [the appellate court] to assure that [its]
speculation is as close to correct as possible.’” Id. at *11
(quoting Lopez, 78 Hawai#i at 451, 896 P.2d at 907).
The ICA dissent noted that, although Lopez did not
explicitly discuss the possibility that the defendant could have
discarded or destroyed the evidence, Lopez’s ruling was “premised
specifically on the fact that “‘the record lack[ed] the clear and
convincing evidence necessary to show that the evidence recovered
. . . as a result of the illegal search, would have still been
there.’”12 Id. (quoting Lopez, 78 Hawai#i at 452, 896 P.2d at 908
11
The ICA dissent declared that although mislabeled, conclusions 9,
10, and 11 constituted findings that should be treated as such. Id. (quoting
Crosby v. State Dep’t. of Budget & Fin., 76 Hawai#i 332, 340, 876 P.2d 1300,
1308 (1994) (“A determination that embraces an ultimate fact is a factual
finding subject to the clearly erroneous standard of review even though
classified as a COL.”)).
12
As stated by the ICA dissent, clear and convincing evidence is “an
intermediate standard of proof greater than a preponderance of the evidence,
(continued...)
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(brackets omitted) (emphasis in original). According to the ICA
dissent, Respondent failed to adduce evidence addressing the
likelihood that the methamphetamine would have remained in
Petitioner’s possession during his transport to the KPD
cellblock. Id.The dissent explained that “[a]rrestees have been known
to discard evidence, and it is the State’s burden, once the
underlying search has been determined to be illegal, to establish
by clear and convincing evidence that an arrestee would not be
able to discard the evidence that the State contends would
inevitably have been discovered.” Id. For example, in Williams
v. State, 784 S.W. 2d 428 (Tex. Crim. App. 1990), the police
found cocaine beneath the patrol car’s backseat where the
handcuffed defendant was seated. In State v. Jimenez, 808 A.2d
1190 (Conn. App. Ct. 2002), the police officer found cocaine in
backseat of police car after transporting defendant who had been
handcuffed and frisked for weapons. In Simmons v. State, 681
S.E.2d 712 (Ga. Ct. App. 2009), an officer discovered cocaine
wedged in backseat of police car even though defendant had been
searched and handcuffed.
12
(...continued)
but less than proof beyond a reasonable doubt required in criminal cases.”
Rodrigues II, 2012 WL 917514, at *6 n.1 (citing Masaki v. Gen. Motors Corp.,
71 Haw. 1, 15, 780 P.2d 566, 574 (1989)). It is a “degree of proof which
will produce in the mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established, and requires the existence of a
fact be highly probable.” Id. (citing Masaki, 71 Haw. at 15, 780 P.2d at
574).
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Moreover, in the ICA’s dissent’s view, Respondent’s own
evidence and arguments “tended to suggest that [Petitioner] might
have been able to access his pocket after his arrest.” Id. at
*9. For example, Officer Williamson testified that although “he
had no reason to believe that Rodrigues was concealing any type
of contraband, was armed, or had needles, he pulled out
[Petitioner]’s pocket to look for a means of escape.” Id.
According to the ICA dissent, “[i]f an officer searches for a
handcuff key or lock pick in an arrestee’s pocket even though the
arrestee is to be handcuffed and transported to a cellblock for
an inventory search, it at least suggests that the officer
believes that the arrestee may be able to access his pocket while
handcuffed.” Id.
Finally, the dissent took issue with what it viewed as
the imposition upon Petitioner of the “a novel obligation to
first introduce evidence that an alternative scenario could
reasonably have occurred[,]” id. at *6, although a defendant “is
not required to present evidence or argument to disprove the
State’s claim of inevitable discovery.” Id. at *9. The ICA
dissent stated, “If we are to ‘safeguard the privacy rights of
our citizens against unlawful government intrusions,’” [Lopez, 78
Hawai#i] at 451 n.29, 896 P.2d at 907 n.29, and “if the
heightened standard is meaningful,” the prosecution’s burden
cannot be “conditioned upon the defendant . . . explaining first
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the logical failings in the State’s own hypothetical.” Rodrigues
II, 2012 WL 917514, at *11 (brackets omitted).
IV.
Petitioner lists the following questions in his
Application filed on May 29, 2012:
1) Whether the ICA gravely erred in failing to disregard
[Respondent’s] points of error raised in its opening brief
because the alleged errors were not brought to the attention
to [sic] the [court] as required by HRAP Rule 28(b)(4). 13
2) Whether the ICA majority gravely erred in holding that
the [court] erred in concluding that the State failed to
meet its burden that the packet containing methamphetamine
would have been inevitably been [sic] discovered when the
police conducted their inventory search prior to admitting
[Petitioner] into the cellblock.
Respondent did not file a Response to the Application.
V.
A.
1.
In connection with Petitioner’s first question,
Petitioner asserts that Respondent alleged certain findings were
erroneous but “filed a notice of appeal” instead of “bringing its
objection to the attention of the [] court.” Hence, Petitioner
maintains Respondent cannot point to where in the record the
alleged errors were brought to the attention of the court, as
13
HRAP Rule 28(b) provides in relevant part as follows:
[T]he appellant shall file an opening brief, containing
. . .
(4) A concise statement of the points of error . . .
stat[ing] . . . where in the record the alleged error was
objected to or the manner in which the alleged error was
brought to the attention of the court or agency.
. . . .
Points not presented in accordance with this section will be
disregarded, except that the appellate court, at its option,
may notice a plain error not presented.
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required by HRAP Rule 28(b)(4). As stated, HRAP Rule 28(b)(4)
requires in relevant part that an appellant’s opening brief
include “a concise statement of the points of error set forth in
separately numbered paragraphs, and each error must state “where
in the record the alleged error occurred[.]” “Points not
presented in accordance with [HRAP Rule 28(b)] will be
disregarded, except that the appellate court, at its option, may
notice a plain error not presented.” Relying on State v. Anh
Cong Bui, No. 28454, 2008 WL 2916355, at *1 (App. July 30, 2008),
Petitioner contends Respondent’s points of error should have been
disregarded, and were not noticeable for plain error.14
In its Reply Brief to Petitioner’s Answering Brief
filed in the ICA, Respondent maintained that after remand, and at
the final hearing, the court invited Respondent to file proposed
findings and conclusions or a post-hearing memorandum.
Respondent asserted that in contrast to Bui where the defendant
did not ask the court to enter any specific findings, Respondent
did urge the court in its supplemental memo to adopt findings
regarding the inventory search and the relevant KPD policy, and
14
In Bui, the circuit court denied the defendant’s motion to
suppress and issued written findings and conclusions. The defendant argued on
appeal that several findings were clearly erroneous because the circuit court
failed to make findings as to the time the events referenced in the findings
took place. However, the ICA responded that the defendant did not state in
his opening brief where in the record the alleged errors were brought to the
attention of the circuit court. The ICA reviewed the defendant’s challenges
under the plain error standard of review, and determined that the circuit
court’s failure to include findings regarding the specific time of the events
was not plain error.
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to conclude that there was clear and convincing evidence of
inevitable discovery.
Although Petitioner suggested that Respondent should
have objected to the court’s alleged error after the Second
Suppression Order was filed instead of filing a notice of appeal,
Respondent stated the only way to do that would be to file a
motion for reconsideration of the court’s Second Suppression
Order. But, according to Respondent, “neither the HRAP nor the
HRS require [an appellant] to file a motion for reconsideration
as a pre-condition of filing a notice of appeal.”
2.
On appeal, the ICA did not address Petitioner’s
argument that Respondent’s points of error failed to comply with
HRAP Rule 28(b)(4) and therefore must be disregarded.
In the absence of a ruling by the ICA, this court must resolve
the issue.
It appears Respondent’s points of error did not violate
HRAP Rule 28. First, in its supplemental memo, Respondent did
urge the court to adopt findings that an inventory search was
conducted pursuant to KPD procedures, that it presented clear and
convincing evidence that the methamphetamine would have been
inevitably discovered, and that Silva was controlling.
Accordingly, Respondent did call the errors raised on appeal to
the attention of the court.
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Furthermore, Bui, 2008 WL 2916355, at *1, which
Petitioner relies upon, is distinguishable. Unlike in Bui, here,
Respondent did urge the court to adopt the findings it alleged
were erroneously omitted from the Second Suppression Order, and
raised arguments supporting the inevitable discovery exception in
its memorandum in opposition to Petitioner’s motion to suppress,
and in its supplemental memo.
Finally, although Petitioner cites to several cases for
the proposition that the appellate courts have been reluctant to
notice plain error where the defendant has failed to bring
alleged error to the trial court’s attention, those cases
involved the waiver of an evidentiary objection at trial. This
case does not involve the waiver of an evidentiary objection.
Nor does this case involve a situation in which the court was
never apprised of the position Respondent asserted on appeal.
Hence, Respondent preserved its points of error in its filings
with the court.
VI.
As to his second question, Petitioner essentially
adopts the position of the ICA dissent, that argued (1) the ICA
majority erred in concluding the court failed to make the
necessary findings relevant to inevitable discovery and (2) the
ICA majority erred in concluding Respondent met its burden of
proving the methamphetamine would have been inevitably
discovered.
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A.
With respect to the first argument, Petitioner is
correct that the court did enter findings to support its
conclusion that the inevitable discovery exception did not apply.
Petitioner maintains that finding 9 and conclusions 8, 9, 10, and
11 constitute the findings necessary to justify the court’s
ultimate conclusion. However, all of the court’s findings relate
to its conclusion. The court’s findings were based on the
evidence presented by Respondent concerning Petitioner’s arrest,
the unlawful search of Petitioner during which the
methamphetamine was discovered, the matters that transpired up
until the point Petitioner was placed in a cellblock, and the
inventory search. Based on this evidence, the court determined
Respondent had failed to prove inevitable discovery.
B.
Respondent argued on appeal to the ICA that the court
erred by failing to make findings regarding the events that
occurred after Petitioner was placed in the police transport
vehicle, and that the court erred in failing to make findings
regarding Officer Williamson’s credibility and the weight that
should be given to his testimony.
First, any absence of findings regarding the events
that occurred during the transport of Petitioner may be
attributed to Respondent. To reiterate, it is Respondent that
had the burden of producing clear and convincing evidence that
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the methamphetamine would have been discovered during the
inventory search. Consequently, as Petitioner asserts,
Respondent failed to adduce relevant evidence regarding, for
example, how Petitioner was restrained, whether Petitioner was
able to access his pockets, whether Petitioner was being observed
up until the point the inventory search was conducted or whether
the back of the police vehicle was searched for contraband
immediately prior to and after transport of Petitioner. Indeed,
the court stated that Respondent “did not present any evidence
that Officer Williamson or another officer continuously observed
[Petitioner] after being handcuffed or that Officer Williamson
[n]ever left [Petitioner] unattended.” Conclusion 10.
Next, as related, Respondent argued on appeal to the
ICA that the court erred by not making findings relating to the
inventory search of Petitioner, including his pockets, and KPD’s
procedures for such searches. Respondent urged that the case
should be remanded to the court with instructions for the court
to enter a finding that Officer Williamson transported Petitioner
to a KPD cellblock, and subjected him to a routine inventory
search, including a search of his pockets. But, it is apparent
from the court’s conclusions that the court found the inventory
search did take place.
For example, in conclusion 8, the court states that
there was no evidence that Petitioner was incapable of retrieving
and discarding the methamphetamine “from his person without an
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officer’s notice between the time of his arrest and the inventory
search[.]” (Emphasis added.) Likewise, conclusion 9
incorporates the court’s finding that there was no evidence that
Petitioner could not discard the methamphetamine “between the
time of his arrest and the inventory search[.]” (Emphasis
added.) There was no reason to remand the case to the court for
an express finding that Officer Williamson conducted a routine
inventory search on Petitioner’s person inasmuch as Petitioner
never disputed such inventory search took place, and it is
obvious that the court accepted Officer Williamson’s testimony
that the inventory search had been conducted.
Additionally, notwithstanding the ICA majority’s
suggestion that the court was required to make express findings
regarding credibility and weight, a court is not required to make
express findings regarding credibility and weight. See State v.
Patterson, 58 Haw. 462, 468, 571 P.2d 745, 749 (1977) (“The power
to judge credibility of witnesses, resolve conflicts in
testimony, weigh evidence and draw factual inferences, is vested
in the trial court[,]” and “[o]n appeal all presumptions favor
proper exercise of that power, and the trial court’s findings
whether express or implied must be upheld if supported by
substantial evidence.”) (Emphasis added.); see also State v.
Ganal, 81 Hawai#i 358, 370, 917 P.2d 370, 382 (1996) (noting that
“[i]n making its finding and order, the circuit court was
required to weigh the testimony of the witnesses and judge their
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credibility[,]” and “‘the trial court’s findings whether express
or implied must be upheld if supported by substantial evidence’”
(quoting State v. Ganal, 81 Hawai#i 358, 370, 917 P.2d 370, 382
(1996))) (emphasis added).
Moreover, the court’s ultimate conclusion in this case
did not hinge on the weight that was given to Officer
Williamson’s testimony. Indeed, the court accepted Officer
Williamson’s testimony as true. None of the parties disputed his
testimony. The court concluded based on Respondent’s evidence,
and particularly Officer Williamson’s testimony, that Respondent
had not established by clear and convincing evidence that the
methamphetamine would have been inevitably discovered in the
inventory search had it “not [otherwise] been obtained via
Officer Williamson’s illegal search.” Conclusion 9. Because
Respondent “failed to produce evidence which would demonstrate
that [Petitioner] was incapable of retrieving and discarding the
contraband from his person without an officer’s notice between
the time of his arrest and the inventory search[,]” and,
therefore, that the methamphetamine “would have been inevitably
discovered[,]” the court concluded that the “inevitable discovery
rule [was] not applicable” in this case. Conclusion 8.15
15
Although Petitioner maintains conclusions 8 through 11 are
findings, first, conclusions 8, 9, 10, and 11, may also be viewed as
“inference[s] on a question of law, [i.e., whether Respondent had established
by clear and convincing evidence that the methamphetamine would have been
inevitably discovered,] made as a result of [the] factual showing” by
Respondent. Black’s Law Dictionary at 329. In other words, conclusions 8-11
reflect an “application of [the clear and convincing] legal standard” relating
to the inevitable discovery exception. Lundgren v. Freeman, 307 F.2d 104, 115
(continued...)
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Hence, the court included in its order sufficient facts
from which this court can ascertain the steps by which the court
reached its ultimate conclusion regarding the inevitable
discovery issue, and the findings were thus sufficient. See Nani
Koolau Co. v. K & M Const., Inc., 5 Haw. App. 137, 140, 681 P.2d
580, 584 (App. 1984) (“If [the] findings include sufficient
subsidiary facts to disclose to the reviewing court the steps by
which the lower court reached its ultimate conclusion on each
factual issue, then the findings are adequate.”). Plainly, the
ICA erred in concluding that the court did not make sufficient
findings relating to the inevitable discovery issue.
VII.
Respondent maintains that, in Silva, 91 Hawai#i at 121,
979 P.2d at 1145, the ICA held under similar facts that the State
presented clear and convincing evidence that contraband obtained
during a search incident to arrest would inevitably have been
discovered during a pre-incarceration search. In Silva, the
defendant moved to suppress items recovered from his pocket
following his arrest. 91 Hawai#i at 113-14, 979 P.2d at 1139-40.
15
(...continued)
(9th Cir. 1962).
However, as Petitioner notes, the foregoing conclusions
incorporate findings. For example, conclusion 8 was based on the court’s
apparent finding that Respondent failed to present evidence that Petitioner’s
was retrained in such a manner so as to make him incapable of retrieving items
from his pockets or discarding the methamphetamine between the time of his
arrest and the inventory search. Conclusions 8, 9, and 10 were based upon the
court’s finding that Respondent did not present any evidence that Petitioner
was incapable of discarding the methamphetamine between the time of his arrest
and the inventory search. Finally, conclusion 11 reflects the court’s finding
that Respondent did not present evidence such as that in Silva that Petitioner
was unable to reach the contraband while cuffed.
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The officer testified at the hearing on the motion to suppress
that the pipe recovered from the defendant’s pocket was sticking
out from his pocket and in plain view. Id. The defendant on the
other hand testified that the pipe was not in plain view. Id. at
114, 979 P.2d at 1140. According to the Silva majority, the
circuit court did not enter any findings as to the validity of
the search of the defendant’s pockets and “therefore did not
resolve the credibility issue presented by the conflicting
testimonies . . . regarding whether the seized evidence was in
plain view.” Id. at 120, 979 P.2d at 1146. “Instead, the
circuit court concluded that the evidence would have inevitably
been discovered during an inventory search of Defendant conducted
upon his arrival and booking at the police station.” Id.
On appeal, the Silva majority determined that the
prosecution had “met its burden of proof.” Id. However, the
grounds upon which the evidence was admissible in Silva is
ambiguous. See id. at 122, 979 P.2d at 1147-48 (Acoba J.,
concurring) (“The contraband was recovered following the arrest
on the warrants, and validly so, as incident to arrest under the
police version of the events, or pursuant to the inevitable
discovery rule under [the d]efendant’s recounting of the
episode.”) Hence, we do not find Silva to be controlling in this
case.
Distinguishing Silva, the ICA dissent acknowledged that
Silva involved a similar post-arrest transport to the cellblock
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where an inventory search would be conducted. (Citing Silva, 91
Hawai#i at 121, 979 P.2d at 1147). However, as the ICA dissent
correctly observed, Silva, did not need to discuss whether the
defendant could have discarded or destroyed the evidence because
the defendant testified that he was unable to access his pockets
while his hands were handcuffed. Id. (citing 91 Hawai#i at 114,
979 P.2d at 1140). In the instant case, Respondent’s own
evidence suggested that Petitioner might have been able to access
his pockets even after he was handcuffed:
Officer Williamson testified that despite the fact that he
had no reason to believe that [Petitioner] was concealing
any type of contraband, was armed, or had needles, he pulled
out [Petitioner]’s pocket to look for a means of escape. In
[Respondent’s] opposition to the Motion to Suppress,
[Respondent] posited that an officer needed to pull out an
arrestee's pocket to look for a “means of escape like a
handcuff key or lock pick.”
Rodrigues II, 2012 WL 917514, at *9 (Reifurth J., dissenting).
VIII.
A.
With respect to Petitioner’s second argument, it must
be observed that Hawai#i’s inevitable discovery exception to the
exclusionary rule is unlike the federal exception. The
inevitable discovery exception was first adopted by the United
States Supreme Court in Nix v. Williams, 467 U.S. 431 (1984)
(Willaims II). In Williams II, a 10-year-old girl disappeared
from a YMCA. Id. at 434. Shortly after she disappeared,
Williams was seen leaving the YMCA carrying a large bundle
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Police suspected that Williams had left the girl or her
body somewhere between Des Moines and a rest stop where the
girl’s clothing and a blanket similar to the one Williams was
seen carrying were discovered. Id. at 435. Two hundred
volunteers divided into teams and searched that area. Meanwhile,
Williams turned himself in to the local police in Davenport, and
contacted an attorney in Des Moines. Id. Des Moines police
informed Williams’ counsel that they would bring Williams back to
Des Moines without questioning him. Id. However, during
Williams’ transport, one of the detectives suggested that
Williams should help them locate the young girl’s body before it
became covered by the snow so that she could have a “Christian
burial.” Id. at 435-36. At some point thereafter, Williams
agreed to direct the officers to the girl’s body. Id. At the
time her body was discovered, one search team was two and a half
miles away. Id.In Williams’ first trial, his counsel moved to suppress
evidence of the girl’s body and all related evidence on the
ground that such evidence was the “fruit” of an illegally
obtained statement. Id. at 437. The trial court denied
Williams’ motion. Id. The Supreme Court held in Brewer v.
Williams, 430 U.S. 387, 404-06 (1977) (Williams I), that the
incriminating statements should have been suppressed because they
were obtained in violation of Williams’ right to counsel, and
remanded for a new trial. Williams I noted, however, that the
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evidence “‘might well be admissible on the theory that the body
would have been discovered in any event, even had incriminating
statements not been elicited from Williams.’” Id. at 406 n.12.
In Williams’ second trial, the trial court admitted
evidence relating to the girl’s body, on the ground that even if
Williams had not led the police to the girl’s body, it would have
been discovered within a short time. Williams II, 467 U.S. at
436. In Williams II, the Supreme Court was urged to adopt and
apply an inevitable discovery exception to the exclusionary rule.
Id. at 440.
Williams II explained that the independent source
doctrine allows admission of unlawfully obtained evidence when
such evidence is also discovered by means wholly independent of
any constitutional violation. Although inapplicable to the case
before it, Williams II concluded that the independent source
doctrine was “wholly consistent with and justifie[d] adoption of
the inevitable discovery exception to the exclusionary rule.”
Id. at 432. In light of this principle, the Supreme Court
announced the following rule: “If the prosecution can establish
by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful
means[,] . . . then the deterrence rationale has so little basis
that the evidence should be received.” Id. at 444. Williams II
ultimately determined the girl’s body inevitably would have been
found. Id. at 449-50.
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In dissent to the Williams II majority, Justice Brennan
stated that “unconstitutionally obtained evidence may be admitted
at trial if it inevitably would have been discovered in the same
condition by an independent line of investigation that was
already being pursued when the constitutional violation
occurred.” Id. at 459 (Brennan, J., dissenting). He believed
the majority overlooked “the crucial difference between the
‘inevitable discovery’ doctrine and the ‘independent source’
exception from which it is derived.” Id. Justice Brennan
pointed out that, when properly applied, the independent source
exception “allows the prosecution to use evidence only if it was,
in fact, obtained by fully lawful means[,]” and thus, the
doctrine “does no violence to the constitutional protections that
the exclusionary rule is meant to enforce.” Id.On the other hand, under the inevitable discovery
exception, “evidence sought to be introduced at trial has not
actually been obtained from an independent source, but rather
would have been discovered as a matter of course if independent
investigations were allowed to proceed.” Id. (emphasis added).
In other words, according to Justice Brennan, “[t]he inevitable
discovery exception necessarily implicates a hypothetical finding
that differs in kind from the factual finding that precedes
application of the independent source rule.” Id. In Justice
Brennan’s view, in order to ensure that the hypothetical “is as
narrowly confined to circumstances that are functionally
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equivalent to an independent source, and to protect fully the
fundamental rights served by the exclusionary rule, the
government should “satisfy a heightened burden of proof before it
is allowed to use such evidence[,]” i.e., clear and convincing
evidence. In State v. Lopez, 78 Hawai#i 433, 451, 896 P.2d 889,
907 (1995), this court adopted Justice Brennan’s view.
B.
In Lopez, Sergeant Stephen Magnani (Sergeant Magnani),
who was conducting an investigation of a drug-related conspiracy,
determined that a substantial amount of cocaine had been
delivered to a house on Kala street in Puna, Hawai#i. 78 Hawai#i
at 437, 896 P.2d at 893. Unrelated to the Sergeant’s
investigation, three armed marked men broke into the house of
Kelly and Daniel Hauanio, located on Kala street, and robbed
them. Id. An investigating officer suspected that the robbery
was drug-related. Id. While the Hauanios were staying in a
hotel following the robbery, Kelly’s mother, without the
Hauanios’ permission, volunteered to take Detective Steven
Guillermo (Detective Guillermo) to the Hauanios’ home to continue
the robbery investigation. Id. at 438, 896 P.2d at 894.
After entering the home, the detective confiscated a
cellophane container filled with cocaine that he found in the
master bedroom. Id. Based on information relating to the
robbery and the discovery of the cocaine in the master bedroom,
officers were able to obtain a search warrant for the Hauanio
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home. Id. Upon execution of the search warrant, the officers
discovered evidence linking the Hauanios to the drug delivery on
Kala street and evidence connecting them to the drug-conspiracy
that was being investigated. Id.Prior to the Hauanios’ trial for several drug offenses,
the Hauanios moved to suppress the evidence obtained from their
home. Id. at 440, 896 P.2d at 896. This court held that the
initial search of the Hauanio’s home was unconstitutional. Id.
at 447, 896 P.2d at 903. Lopez determined that the evidence was
not obtained from an independent source, i.e., execution of the
search warrant, because there was no information independent of
Detective Guillermo’s illegal entry of the Hauanio’s home to
support the warrant. Id. at 448, 896 P.2d at 904.
Next, this court considered the prosecution’s argument
that, although the entry into the Hauanio’s home was unlawful,
the evidence should not be suppressed because it would have been
inevitably discovered by lawful execution of Detective
Guillermo’s search warrant or by the investigation conducted by
Sergeant Magnani. Id. at 447, 896 P.2d at 903. In response,
this court adopted the inevitable discovery exception announced
in Willaims II. However, unlike “the United States Supreme Court
[majority which] has unequivocally stated that the primary
purpose of the exclusionary rule on the federal level is to deter
illegal police conduct,” this court has said that “an equally
valuable purpose of the exclusionary rule under [the Hawai#i
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Constitution] is to protect the privacy rights of our
[residents].” Id. at 446. In other words, our constitution has
“[t]he added protection against governmental ‘invasions of
privacy[.]’” Id. at 451, 896 P.2d at 907.
Lopez agreed with Justice Brennan that “the inevitable
discovery exception necessarily requires speculation as to the
outcome of hypothetical circumstances.” Id. In order “to ensure
that the added protection in the Hawai#i Constitution [of
protecting individual privacy] is not vitiated by a ‘bad guess,’”
this court held that “evidence may be admitted under the
inevitable discovery exception to the exclusionary rule” only if
the prosecution “present[s] clear and convincing evidence that
any evidence obtained in violation of article I, section 7, would
inevitably have been discovered by lawful means[.]” Id. Lopez
noted that this “higher burden of proof would assist in serving
one of the main purposes of the exclusionary rule . . . i.e.,
safeguarding the privacy rights of our [residents] against
unlawful governmental intrusions.” Id. n.29.
Applying the foregoing to the case before it, this
court first rejected the prosecution’s argument that the evidence
would have been inevitably discovered by lawful execution of
Detective Guillermo’s warrant because the information in support
of the warrant was based on observations made when entry was made
without the Hauanios’ consent. Id. at 448, 896 P.2d at 904.
Second, this court rejected the argument that the contraband
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would have been discovered pursuant to Sergeant Magnani’s drug-
conspiracy investigation on Kala street. Id. at 452, 896 P.2d at
908. This court reasoned that although Sergeant Magnani was
“suspicious” that cocaine had been delivered to one of the homes
on Kala street, he had not determined who occupied the houses,
and there was no evidence that Sergeant Magnani possessed
information necessary to obtain a search warrant to search the
Haaunio home. Id. In addition, even if Sergeant Magnani might
have eventually obtained a search warrant, “the record lack[ed]
the clear and convincing evidence necessary to show that the
evidence recovered from the [defendants’] home as a result of
[the] illegal search, would have still been there.” Id.(emphasis added).
VIII.
A.
As Lopez declared, our exclusionary rule differs from
its federal counterpart insofar as it protects individual privacy
rights. 78 Hawai#i at 446, 896 P.2d at 902; accord State v.
Kahoonei, 83 Hawai#i 124, 131, 925 P.2d 294, 301 (1996); see also
State v. Dixon, 83 Hawai#i 13, 23, 924 P.2d 181, 191 (1996)
(stating that “article I, section 7 of the Hawai#i Constitution
provides broader protection than the [F]ourth [A]mendment to the
United States Constitution because it also protects against
unreasonable invasions of privacy”); State v. Navas, 81 Hawai#i
113, 123, 913 P.2d 39, 49 (1996) (stating that “article I,
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section 7 of the Hawai#i Constitution” provides a “more extensive
right of privacy . . . than that of the United States
Constitution”); State v. Tanaka, 67 Haw. 658, 662, 701 P.2d 1274,
1276 (1985) (“In our view, article I, § 7 of the Hawai#i
Constitution recognizes an expectation of privacy beyond the
parallel provisions in the Federal Bill of Rights.”). This
“added protection against governmental invasions of privacy”
demands that speculation regarding whether evidence obtained in
violation of one’s individual privacy would have been inevitably
discovery be “as close to correct as possible.” Id. at 451, 896
P.2d at 907. In other words, “to ensure that the added
protection in the Hawai#i Constitution is not vitiated by a ‘bad
guess,’” Respondent was required “to present clear and convincing
evidence that [the methamphetamine] obtained in violation of
[Petitioner’s constitutional rights] would inevitably have been
discovered by lawful means before such evidence may be admitted
under the inevitable discovery exception to the exclusionary
rule.” Id.Here, the “hypothetical[,]” id., posited by Respondent
was that, although the methamphetamine was unlawfully seized, it
would have been inevitably discovered during the inventory search
prior to placing Petitioner in the KPD cellblock. However,
without evidence establishing that the methamphetamine would have
remained in Petitioner’s pocket until the inventory search was
conducted, or that any effort by him to discard it would have
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been detected, there was no clear and convincing evidence that
the methamphetamine would have been otherwise inevitably
discovered during the inventory search. In other words, the
court could not be sure that Respondent’s asserted hypothetical
was “as close to correct as possible.” Id.B.
Furthermore, unlike in Williams II and Lopez, there
were no “independent line[s] of investigation that w[ere] already
being pursued when the constitutional violation occurred[,]” and
nothing establishing that the evidence would have been
“discovered as a matter of course if independent investigations
were allowed to proceed.” Williams II, 467 U.S. at 459 (Brennan,
J., dissenting). Here, Officer Williamson agreed on cross-
examination that he emptied Petitioner’s pockets after his arrest
for contempt of court, without first patting them down, and
without any “reason to believe . . . [Petitioner] was concealing
any type of contraband[,]” thus precipitating the event that
produced the contraband. It was this search that the ICA
determined in Rodrigues I, 122 Hawai#i at 233-234, 225 P.3d at
675-76, violated the Hawai#i Constitution. Recovery of the
methamphetamine was not the subject of any other lawful
investigation. No facts indicate another investigation was being
conducted that would have lawfully resulted in the recovery of
the methamphetamine from Petitioner. See Lopez, 78 Hawai#i at
452, 896 P.2d at 908.
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Under the ICA’s majority conclusion that the
methamphetamine would have been inevitably discovered in an
inventory search, virtually every unconstitutional search
incident to arrest, or any unconstitutional search of a defendant
after his or her arrest, but prior to his or her arriving at the
cellblock, would be validated upon a showing by the State that,
after the search, the defendant was transported to the cellblock
and an inventory search conducted. This would defeat discrete
exceptions to the general searches and seizures that are
prohibited in Article 1, section 7 of the Hawai#i Constitution.
Moreover, this would place the courts in the position of engaging
in speculative analysis of hypothetical scenarios in virtually
every instance where established and well-delineated bases for
exceptions to the warrant requirement would otherwise apply. See
Ortiz, 67 Haw. at 184, 683 P.2d at 825 (stating that “warrantless
searches are presumptively unreasonable unless they fall within a
specifically-established and well-delineated exception to the
warrant requirement”).
The evidence presented in this case does not meet the
heightened burden of proof established in Lopez. Without
evidence other than that of Petitioner’s arrest and transport to
the cellblock, there can be no assurance that the methamphetamine
“would have still been there” at the time of the lawful inventory
search, Lopez, 78 Hawai#i at 452, 896 P.2d at 908, and
consequently, no way for the court to ensure that our
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constitution’s protection of the privacy rights would not be
“vitiated by a ‘bad guess[.]’” Id. at 452, 896 P.2d at 908. The
evidence was obtained by the unilateral act of Officer Williamson
and was not the product of an “independent line of
investigation,” Williams II, 467 U.S. at 459 (Brennan, J.
dissenting), that would have culminated in discovery of the
contraband. Under these circumstances, it cannot be concluded
that the court was wrong in holding that Respondent failed to
present clear and convincing evidence that the methamphetamine
would have been discovered during the inventory search, and the
ICA majority gravely erred in concluding otherwise.
IX.
In accordance with the foregoing, we vacate the April
3, 2012 judgment of the ICA, which vacated and remanded the
August 5, 2010 Findings of Facts, Conclusions of Law and Order
Granting Defendant’s Motion to Suppress Evidence filed by the
court, affirm said order, and remand to the court for further
proceedings consistent with this opinion.
Craig W. Jerome, /s/ Mark E. Recktenwald
for petitioner
/s/ Simeon R. Acoba, Jr.
Charles A. Foster,
for respondent /s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Fa#auuga L. To#oto#o
37