*1 defense, prosecution, tains. and the not, accurately perceived are
as should this court. Because the court did
impose hypothetical and not extended terms terms,
five-year consecutive such extend- only imposed findings
ed could terms verdict,
beyond jury covered
Blakely resentencing would mandate a in this
case.
STATE of ELENEKI, Defendant-Appellant.
Jasmine
No.
Supreme Court Hawai'i. 22, 2004.
Dec. *2 (the court)
circuit2 and for remand the case disposition opinion. in accordance with this I. 9, 2001, May Plaintiff-Appellee
On (the prosecution) Hawai'i filed a five-count complaint charging court Eleneki with drag August related On offenses. suppress Eleneki filed a motion to evidence from Eleneki’s recovered vehicle after the 13, 2001, stop. On and November December hearings conducted 2002,' suppress. February motion to On suppress the court denied the motion to and “Findings issued its of Fact (“findings”), (“conclusions”), Conclusions of Law Or- and Denying Suppress der Motion to [Eleneki’s] Goodness, Cindy Deputy A.L. Public De- (“order”).” Statements and Evidence fender, briefs, defendant-appellant. on the following pertinent court entered the and unchallenged findings: Deputy Minatoya, Prosecuting Richard K. Maui,
Attorney, briefs, giving 1. All and County events occurrences charges rise contained in plaintiff-appellee. the indict- County ments herein occurred MOON, C.J., LEVINSON, ACOBA, Maui, Hawaii, prop- State of and venue is DUFFY, JJ.; NAKAYAMA,J., with erly [c]ourt; . in the above-entitled concurring dissenting. separately jurisdiction 2. This has De- [c]ourt over cause; fendant and this case and ACOBA,
Opinion of the Court J. April midday, 3. On at about Sergeant Poplardo Anthony and other offi- We hold that Defendant- cers of the MPD vice narcotics (Eleneki) division Appellant Jasmine was un- executed two I, search warrants on Kihei lawful under Section 71 of Article Uwapo residences Constitution, located Road Hawai'i State and therefore ev- Apartments. erything seized thereafter her vehicle suppressed. 4. apart- should have been State v. 'tenant one those Bonds, ments, [“Chong”], Haw. ar- Scott (1978) (stating stop of where the vehi Promoting “[t]he rested offense of seizure!,] Dangerous cle constituted an Drug Degree, unreasonable the Third inadmissible”). methamphetamine, the evidence so occupant obtained as was an seized, illegally Because such apartment evidence the second that was also the judgment subject vacate premises we of a search warrant. conviction the circuit court of That occupants apartments the second of both I, right Article Hawai'i people section of the State Consti- of the to be secure in their 1.. provides houses, effects, tution that: persons, papers, against seizures, right people The persons, to be secure in their unreasonable searches and shall not houses, papers against violated, issue, and effects un- and no Warrants shall but searches, cause, seizures and invasions of upon probable supported by Oath or violated; privacy shall not be and no warrants affirmation, particularly describing cause, upon probable supported shall issue but searched, place things to be and the affirmation, particularly oath or de- to be seized. scribing place per- searched to be and the I, applying may Article Section we consider things sons tions to be seized or the communica- federal caselaw. sought intercepted. to be Similarly, the Fourth Amendment of the Unit- Shackley presided. 2. The Honorable F. Raffetto provides ed States that: Constitution conjunction working to distribute methamphetamine; a.m., approximately 25. At 11:30 Offi- Poplardo Sergeant spoke with ... cer William Gannon drug arrived dog “BEN”, Sergeant and the other individual detection arrested Po- *3 station; plardo investigation turned the Wailuku over to him; Sergeant Poplardo
6. ... Chong knew vehicle, for 26. “BEN” alerted to the year. Chong provided over and one infor- mation Officer Gannon then seized the on numerous vehicle and occasions both Ser- Station; geant had it Poplardo towed Wailuku Police and other vice narcotics officers, and was a considered reliable Sergeant Poplardo 27. That and Officer formant; warrant, Gannon obtained search Num- subject premises
ber
being
Cruiser,
Chrysler
the white
PT
Hawaii
Chong
8.
and the other individual ar-
494;
MGH
License number
Uwapo Apartments
rested at
April
on
1, 2001,
May
on
28. That
p.m.,
6:50
Sergeant Poplardo
both informed
executed,
the search warrant was
[cer-
was
supplier
Crystal
of
[Eleneki]
recovered,
photo-
tain] items were
Methamphetamine
in
cocaine
Kihei
graphs of
into
area;
same were entered
evidence
purposes
hearing[.]
of th[e]
added.)
(Emphases
April SO,
10. That
the evening
on
of
speaking
Sergeant
after
with
Poplar-
findings,
Based
its
the court issued the
do,
... Chong
was released
following relevant conclusion:
custody. Chong
picked up by
was
a fe-
4.
respect
The
finds that with
[c]ourt
Cruiser,
Chrysler
male in a white
PT
stop, Sergeant Poplardo
clearly
Sergeant Poplardo recognized the driver of
possessed
would
cause a
Defendant;
the PT
to be
Cruiser
person
reasonable caution
believe
of
morning May
11. On the
activity
that criminal
was
and that
of
afoot
Sergeants Anthony Poplardo and Chris
appropriate.
the action taken was
Taking
looking
Chong.
Navarro were
...
Sergeant Poplardo’s
into account
knowl-
seeking
Chong
...
was to
edge
of drugs
that Scott
was user
speak
regarding.
Defendant,
him
the distribution
who
associated
informa-
drugs and to serve him ivith an outstand-
provided,
tion
was a
Defendant
known
...;
ing
drugs,
arrest warrant
supplier of
and also the existence of
outstanding
an
arrest warrant
for Scott
12. That
the officers were
an un-
factors,
Chong, along with other
a reason-
marked
car when
saw the white
suspect
clearly
able
Cruiser,
Chrysler PT
License Number
afoot,
appro-
criminal
was
and the
parking
MGH 494 in the
lot at 1900 Main
priate
investiga-
action was to
conduct
Street, Wailuku,
Stop
near the Minute
tive
of the vehicle.
store;
added.)
(Emphasis
Sergeant
13.
Poplardo
That
could see
car,
was the
[Eleneki]
driver
February
On
Eleneki entered a
occupants
and that there were two other
plea
conditional
of no
to Counts I
contest
car; however,
he
was unsure
through
right
if
V and reserved her
to seek
passengers;
ivas one
appellate
suppress.
review
motion
findings,
ve- Based on
court’s
evidence
followed
Street,
hicle
proof
east on Main
to Kaa-
material
then
recovered was
offenses
Avenue,
April
humanu
onto
then
Wahine Pio
which she
convicted. On
Drive,
using
stopped
light
judgment
then
the car
blue
was entered and Defendant
(1)
charged
car
promoting
siren.
near
Keo-
convicted
pulani
degree,
approximately
dangerous drug
Park at
11:15 a.m.
the first
Hawai'i
a.m.;
(HRS)
712-1241(l)(a)(i)
§
11:20
Revised Statutes
(Count
I);
determining
“In
prohibited
reasonableness
(Supp.2002)
acts
stops, this
wholly discretionary
§
automobile
drug
329-
paraphernalia,
HRS
related
(Counts
43.5(a) (1993)
IV);
pro-
repeatedly applied the standard set
II and
court has
Powell,
Terry.”
dangerous drug in
de-
61 Haw.
moting a
the second
forth
(1993) (Count
712-1242(l)(b)(i)
“narrowly
ex
§
147-48.
defined
gree,
P.2d at
HRS
recog
III);
drug
requirement”
ception
to the warrant
promoting
a detrimental
712-1249(1) (1993).
Prendergast
police officer
§
is that “a
degree,
third
nized
HRS
its occu
may stop
and detain
was sentenced to concurrent
terms
automobile
She
suspi
officer
pants
if that
has
‘reasonable
incarceration. On June
engaged
appeal challenging
person stopped was
cion’that the
filed notice
Ha
Prendergast, 103
judgment.
conduct.”
*4
added)
454,
(emphasis
wai'i at
at 717
appeal,
challenges,
86,
in
94,
Bolosan,
On
Defendant
(citing
v.
78 Hawai'i
State
alia,
(1995)).
court’s
4 that “with
ter
the
conclusion
P.2d
681
890
respect
stop,
to the traffic
connection,
police officer
In that
“the
clearly possessed
that
point
specific
and articula-
must be able
to be
person
a
caution
cause
reasonable
which,
rational
together
facts
with
ble
taken
activity
that criminal
afoot[.]”
lieve
was
“We
facts, reasonably
from
war
inferences
those
ruling
circuit
on a motion
review the
court’s
(internal quotation
intrusion.”
rant that
suppress
de novo to determine whether
omitted);
Pow
citations
also
marks and
see
right
ruling
wrong.”
was
v.
the
or
ell,
(quoting
148
Haw. at
P.2d at
61
603
Kauhi,
195, 197,
Hawai'i
P.2d
86
948
1211).
Barnes,
58 Haw. at
P.2d at
A
568
(1997) (internal quotation marks
1038
suspi
stop
on
seizure
based
“reasonable
omitted).
citation
cion,” then,
objective man
is tied to “some
is,
person stopped
or is
that
the
ifestation
II.
be,
activity[,]”
engaged
in criminal
about
411, 417,
Cortez,
449 U.S.
United States
“stopping
It
is
that
axiomatic
(1981), or
4.The elicited [Sergeant Poplardo]: I tell were could there attempting were to serve a warrant: tint, occupants, but due to the I other Okay. you And at that [DPA]: time were recognize couldn’t them. looking they for someone? you Q: whether were male Could tell Yes, [Sergeant Poplardo]: trying I was or female? Chong. thought they relocate Scott [Sergeant Poplado]: I were Q: purpose? what And for both males. more, added.) A: We needed to talk to him some (Emphasis outstanding he had an bench warrant that was day police did 6. not have not Our determination realized before. Now, 30th, stop April you suspicion the vehicle in this had received reasonable [Q]: case, dissenting opinion n. regarding at 190 Jasmine Eleneki? see hinge upon Sergeant you me. P.3d at n. does not The Court: Excuse You mean Poplardo’s stopping subjective for Ele- looking arrest him on wanant. reason him to Cortez, ry IV. test. Supreme required United States Court The dissent being characterizes the as “ police ” picture “assessment of the whole good police ‘the essence of work’ dissent- yield particularized must suspicion .... 194,102 ing opinion P.3d at and that upon based all the circumstances.” U.S. upon officers should be “free to act their 690. agents S.Ct. The border judgments.’” ‘common sense (quoting (1) stopped pickup Cortez truck seen earlier Wardlow, Illinois v. 528 U.S. evening; in the in an area known as a (2000)). S.Ct. L.Ed.2d 570 In that crossing aliens; point illegal as regard, here was to part of a investigation partic- two-month of a Chong “relocate” “to talk to him some more” pattern ular illegal smuggling operations warrant, and to arrest him on the bench see resulting specific including shoeprint clues supra Chong’s 4. note arrest warrant was particular smuggler. tracks left Id. at April Arguably, dated good police 419,101 Thus, S.Ct. 690. the court held that police work should have led the to execute justified upon because “based they Chong after had arrested officers], picture, the whole experi- [the and had him in custody their officers, enced Border Patrol could reason- or to search for at his own ably particular they surmise home, once the became aware of the engaged activity.” outstanding People bench warrant. See 421-22,101 instance, Id. at S.Ct. 690. In this Spencer, 84 N.Y.2d 622 N.Y.S.2d however, the officers were unable to articu- 646 N.E.2d (holding that au- any objective late placed observations that defendant, tomobile who Chong in ear stop. at the time question regarding wanted to suspect, Indeed, as previously, mentioned unreasonable, especially light of the “fact testify officers did not believed that the officers even searched *6 was in they the or that had observed suspect the at his own home when de- prior him in ear stop. the stop cided defendant [because defen- possible dant] was a probable even source V.
of regarding suspect’s the where- (emphasis abouts” original)). We also note that the “main” and Additionally, an officer’s “common sense “initial” stop proffered by reason for the the judgments” comport must still the Ter- would not stop.7 authorize the Where neki, rather, upon any but pretextual. utter lack of "ob- vehicle was Id. at 116 S.Ct.
jective
was,
Constitution,
manifestation” that Eleneki
Applying
or was
1769.
the United States
be, "engaged
activity.”
about to
tez,
Supreme
criminal
"flatly
Cor-
Court
dismissed the idea that
witnesses).
suspicion
able
named in the
generalized
Such
is among
occupants.”9
detentive
would warrant
its
Dissent-
(1)
suspicion ing
be valid because:
opinion
“founded
that criminal
is afoot is a minimum
proposi-
dissent cites no authorities for the
requirement
stop,”
lawful
tion that
detentive
here
authorized
(2)
Ward,
(1)
169;
“public
488 F.2d at
there are no
interests” it identifies as:
“the
exigent
apprehension
crimes “afoot” with
prompt
“no
circum-
who disre-
warranting
spect
upon
stances
of a
personal liberty
the extreme nature
the constraints
street,”
release”;
public
vehicular
probationary
siren on
attendant to their
id.;
rehabilitation”;
pursuant
pursuit
“the
“public
[is] not made
[an officer’s] founded
collective
“the
desire
foster
environ-
prevention [by]
detainee
involved or
crime
[is]
about
be involved ment
effective
re-
*7
your
Okay.
pulling
position,
So
we
main intention in
8. While
understand the dissent’s
we
el:
inquire
"announce[]"
do
"constitutional rule” as
[Eleneki] over was to
where Scott
maintains,
185,
dissenting opinion
the dissent
at
was?
1083,
law,
(1)
102 P.3d at
inasmuch as
case
as
A: Yes.
herein, covers the circumstances and
discussed
case;
particular
in this
the evidence adduced
you
Q:
only
pulling
But the
had in
intention
evidence,
(2)
"objec-
based on such
there was no
was;
Ching
her over was to
out
Scott
where
find
reason,”
dissenting opinion at
tive
see
right?
stop
of
to warrant the traffic
Ele-
pulling
A: That was the
reason
initial
Further,
clarify,
to
“stretches the
neki.
what
over,yes.
narrowly
exception
defined
to the warrant re-
Q: The initial—
quirement,”
dissenting opinion at
see
n.
A: Yes.
proposition
VII. compan- and his the actions the defendant suspect, exception ground Additionally, gave war- ions another any requirement rant is not inasmuch nor did the officers have information warranted reasonably exemplify facts in this circum- kind which could them as the case lead *8 occupants com- already ... were stances that considered conclusion that the have been commit, or had Terry Supreme mitting, or about existing under the rule. The Colgrove Id. Colgrove, any in crime.” The of Nebraska State v. committed Court stop (1977), investigatory court thus “that the Neb. 253 N.W.2d decided a held in violation of the Fourth strikingly with similar facts to the one in this ease was case of the United Colgrove, us. In two were Amendment to the Constitution before officers States, I, 7, of the Consti- attempting suspects, two and Article section to locate female outstanding (emphasis Id. add- tution of Nebraska.”10 both whom the officers had ed). Id. at 21. officers arrest warrants. The light question” suspicion in posed that a named In the "initial in her reasonable analysis among vehicle’s Colgrove, warrant is follow- a valid arrest 253 N.W.2d contends, conclusion, dissenting opinion ing, occupants,” and the do not read as the ultimate we reaching dissenting opinion at 102 P.3d Colgrove 191-92 n. as the issue of "an officer’s see Therefore, authority investigate Colgrove does not stop or a vehicle to at 1089-90 n. 13. Circuit, Ward, stops explained “[p]oliee Ninth in It of automo- reiterated legal only pursuant in conformity with ... a biles this State are
“[i]n
founded
Ten%
routine, nonpretextual
traffic
to en-
checks
suspicion
a
that criminal
is afoot is
regulations
traffic
or when there exists
force
requirement
any
minimum
lawful deten-
suspicion
that the driver
least
reasonable
Ward,
stop.”
at 169. In
FBI
tive
488 F.2d
committed,
occupants
vehicle have
agents
his automobile
defendant
committing, or about to commit a crime.”
are
him
order to interview
about a federal
[then],
stop,
prop-
“[T]he
Id. at 787-88.
fugitive.
Id. at 167.
Ninth
con-
Circuit
only
suspi-
if
er
the officers had reasonable
stop
[defendant’s]
cluded the “FBI’s
car to
activity.”
at 788.
cion of criminal
Id.
be an unreasonable intrusion under
stop
Fourth
Amendment.” Id.
170. This
VIII.
agents
“FBI
unreasonable because: the
did
car in
not
defendant’s
connection
police engaged in a seizure bereft
crime[;]
any particular
....
suspicion
probable
[t]here
with
cause. The
prohibits
of the war-
emergency
situation nor
law
the circumvention
need
prac-
action[;]
requirement by resorting
rant
to such
signifi-
....
and most
immediate
Accordingly,
the court’s
tices.
cantly,
pursuant
was not made
judgment
conviction is
and the
vacated
agent’s
[de-
founded
disposition
case is remanded for
consistent
defendant]
tained
was involved or about to be
with this decision.
activity.”
in criminal
at 169.
involved
Ultimately, the court held “that the materials
Concurring
Dissenting Opinion
discovered as
result
should have
NAKAYAMA,J.
suppressed as
fruit of
unlawful
been
today
The constitutional rule announced
stop.” Id. at 170.
prohibits
investigative
stops
the use of
Spencer,
Appeals
the Court of
of New
objective
in all instances where there is
rea-
York considered the issue of “whether the
suspect
alleged probation
son to
that an
vio-
police may stop moving
order
lator who is named
a valid arrest
request
concerning
the driver
among
occupants.1 Majority at
a vehicle’s
suspect.”
of a criminal
the whereabouts
agree
I cannot
the car’s windows. tinted I. BACKGROUND Being apprised Chong’s outstanding ar- Eleneki, upon seeing restwarrant and Background Ser- A. Factual geant Poplardo [Chong] “wanted to ... if see (FOFs), findings The circuit court’s of fact in Accordingly, Sergeants was that ear.” and additional relevant facts that are consis- Poplardo and Navarro PT followed the supported by with tent the FOFs and are lot, parking Cruiser as it exited the record, can be summarized as follows: trailed Eleneki for about five minutes before At around noon on Maui Sergeant Poplardo stop using directed her to (MPD) Department Sergeant Police Antho- light his vehicle’s blue and siren. ny Poplardo (Sergeant Poplardo) in assisted Eleneki ear in a her executing apart- search warrants at several Sergeants amount of As Poplardo time. Kihei, ments Maui. Those searches re- foot, approached Navarro Sergeant on Po- discovery crystal sulted metham- plardo passenger compartment scanned the phetamine, and led to the arrests Chong confirmed that was not in the suspected distributing individuals il- vehicle, drug paraphernalia and that no legal Among substance. those arrested suspicious packages lay plain view. Chong (Chong), police was Scott infor- Sergeant Poplardo mant whom had known Nevertheless, Sergeant Poplardo proceed- year provided for over a and who had investigative stop. ed further with the After police previous with information on occa- introducing himself as a officer and Sergeant Poplardo sions. testified that requesting license, Eleneki’s driver’s Ser- Chong informant, though was “reliable” geant Poplardo identify asked Eleneki to Chong’s he did not recall if assistance had passengers. Eleneki that stated the female resulted arrests. “Charmaine,” in the back seat was named but claimed that she did not know the name noon, Following his arrest at around passenger. of her front Sergeant seat Po- Chong was taken to the Wailuku sta- plardo then asked if Eleneki she knew of interrogation. During tion for interroga- whereabouts, Chong’s “initially I since tion, Chong Sergeant Poplardo informed that him, looking for and I know that she knows “was crystal Eleneki one of [his] sources Sergeant Poplardo him.” suspicious became methamphetamine.” information, This cou- when Eleneki “claimed she did not know pled tips Sergeant Poplar- earlier from [Chong] at all.” informants, Sergeant do’s other convinced Poplardo that Eleneki “was involved Sergeant that, Poplardo through- testified methamphetamine distribution of ongo- as an questioning, out his “mumbling Eleneki was ing nature.” lot,” “wouldn’t him straight look in the face,” appeared “nervous,” “tense,”
Chong custody released from “fidgeting.” Believing might night. Sergeant later Eleneki Poplardo As on, private, feel more at Sergeant Poplar- ease looked Eleneki in a Chrys- arrived white step do “invited” her to out of pick PT the vehicle so Chong up. ler Cruiser to Soon after away could talk station, car’s departed Eleneki Ser- occupants. Sergeant other geant Poplardo While Poplardo learned that merely testified that he “asked to” outstanding [Eleneki] wanted bench vehicle, Sergeant exit the violating probation. Poplardo his never indicated to she was free morning, May The next Ser- deny request his or otherwise leave. geant Poplardo partner, and his MPD Ser- geant Christopher (Sergeant Navarro Navar- and Eleneki proceeded1 ro), spotted Chrysler car, PT white Cruiser to the back of Sergeant where Po- parking enter Stop plardo lot of the Minute “strong confronted Eleneki with *10 suspicions” including drug drug paraphernalia, twenty-four that she was “involved with dealing.” protested grams paeketed crystal methamphetamine, After Eleneki that she of her,” any drugs Sergeant cocaine, “didn’t twenty-eight grams have grams of three Poplardo sought scale, her to marijuana, gram consent himself of digital have electronic Sergeant soda, and Navarro search glass her vehicle. of packet baking pipe a small Eleneki, however, Sergeant Poplar- residue, rebuffed a “drug tally” with white brownish acquiesce do and to refused to such pad listing crystal note the “street names” of cocaine, search. Sergeant She instead advised Po- methamphetamine empty and clear plardo get that he would have to a search Ziploek packets envelopes, and manila and warrant to look inside car. her in cash.2 $762 to submit refusal to a History B. Procedural prompted Sergeant consensual search Po- plardo question her “a little bit more.” Eleneki was indicted on Counts I-V. On responses Because Eleneki’s “seemed evasive August Eleneki filed a motion to questions asking,” to most of I Ser- suppress evidence based on al- recovered geant Poplardo requested assistance from I, leged violations article section of the other in performing narcotics officers a “ca- Constitution, Hawai'i State and the fourth nine car. In preparation screen” Eleneki’s and fourteenth amendments the United screen, Sergeants for Poplardo Na- and February States Constitution. On occupants varro ordered all from the ear. the circuit denied Eleneki’s motion to They queried passen- then whether Eleneki’s motion, In suppress. denying the the circuit gers vehicle, anything owned which pertinent following court entered the and replied that she was the sole owner unchallenged FOFs: of all of the ear’s contents. evening April 10. That on the MPD narcotics officer Gannon William speaking Sergeant Poplardo, with after (Officer Gannon) responded Sergeant Po- Chong police Scott released cus- plardo’s call Accompanying for assistance. tody. picked up by Scott Ben, dog Officer Cruiser, Gannon was trained Chrysler in a female white PT and narcotics detection. Officer Gannon Sergeant Poplardo recognized the driver of dog approximately Defendant; arrived fifteen minutes PT Cruiser be the Poplardo Sergeants after and Navarro first 1,May morning 11. On the Ser- stopped Eleneki. geants Anthony Poplardo and Chris Na- looking Chong. varro were screen, Scott During the canine Ben “alerted” seeking Mr. was to pawing door, passenger on the side front speak regarding him distribution indicating presence illegal narcotics. drugs him serve outstand- passenger open, The front window was warrant; ing arrest Ben stuck his about head three inches into passenger compartment. Gannon Officer 12. That were in an un- officers alert, Sergeant Poplardo informed they saw marked car when the white proceeded the officers to arrest Eleneki. Cruiser, Chrysler PT Licence Number her vehicle to towed the Wailuku parking lot at 1900 Main MGH station, it was offi- where stored until Street, Wailuku, Stop near Minute cers received a warrant search its interior. store; warrant, Upon obtaining Officer Gan- 13. That could see inspection non searched the vehicle. His that the DEFENDANT was the driver of car, illegal uncovered a number of and that narcotics there were other explaining drug the relevance of the He further household ics sale. testified deal- uncovered, otherwise lawful items he Officer placed drugs plastic packets ers often drug typically distribution, Gannon testified dealers used $762 in cash individual baking "cutting agent” soda as a to dilute the drug was consistent with sales cocaine and cocaine, purity of and that electronic scales as- crystal methamphetamine. measuring weight illegal sisted in narcot- *11 Thus, car; however, questions of occupants we review he was case.... ‘right/ law constitutional under pas- if unsure Scott was one of the Jenkins, 93 wrong’ standard.” State v. sengers; 997 P.2d Hawai'i Sergeant Poplardo 14. followed the vehi- (citations, quotation signals, and some Street, cle on Main then to [sic] east omitted). points Accord- ellipsis some Avenue, Kaahumanu then onto Pio Wahine court’s ingly, review the circuit “[w]e Drive, stopped using then the car blue suppress novo ruling on a motion de light car was siren. The near ruling was whether determine Keopulani approximately 11:15 Park ” (citations ‘wrong.’ ‘right’ or a.m.; a.m. or 11:20 omitted). signals quotation some Sergeant Poplardo approached DE- 15. 195, 203, 58 Locquiao, 100 Hawai'i State v. FENDANT who was seated the driver’s (quoting State seat, officer, as a identified himself 98 Hawai'i 49 P.3d Poaipuni, license, and asked for her driver’s her (2002)). provided. which she also told Defendant Hauge, 103 Hawai'i State ear was a the officer that the rental vehi- (2003). 131, 140 cle, and that did not have she insurance card; registration III. DISCUSSION Sergeant DE- Poplardo 16. then asked argues circuit appeal, On Eleneki passengers’ FENDANT what names her denying sup- court her motion to erred were, replied did not she she press, as ob- inasmuch the absence know the male in the name seated signs violations or served traffic seat, however, front she identified the rear finding precluded the court from conduct Gabin; passenger seat as Charmaine suspicion” criminal ac- “reasonable Poplardo 17. That Sergeant then asked tivity stop. prece- supported Relying DEFENDANT if she knew about jurisdictions, further dent from other Eleneki Chong, whereabouts of Scott and she temporary investigative that a contends all, contrary him at claimed to know than for a other initiated to search Sergeant day Poplardo what observed qualify exception to cannot defendant 2001; April 30, prior on requirement, does the warrant as the seizure Sergeant Poplardo 18. DE- observed sufficiently weighty public not further a nervous, fidgeted FENDANT to be her con- justify its She terest intrusiveness. seat, Sergeant Poplardo, not look that, cludes and screen because spoke, ap- it when she mumbled unlawful, in fail- were the circuit court erred peared though resulting ing suppress all evidence. speak Defendant not want to to him did counters circuit State presence passengers[.] of her suppression mo- correctly denied February 19, pleaded Eleneki On tion, detaining a grounds briefly on the contest to Counts She I-Y. thereafter recently carrying a sighted driver and vehicle imprison- sentenced concurrent terms “legitimate is a wanted felon reason” I, years in twenty years ment of in Count ten require- general departing from the III, years II and Count each Counts five that Ele- ment. further asserts The State IV, thirty V. days Judgment in Count detention and canine screen neki’s continued entered on time- justified, to- inasmuch as her conduct ly appealed. during wards search their Chong prolonged the “reasonable officers’ II. STANDARD OF REVIEW afoot. suspicion” that criminal Suppress Motion record, Upon I conclude review the at its investigative was lawful questions “We constitution- while the answer inception, dur- exercising indepen- al law our detention own Eleneki’s continued judgment ing on the canine exceeded dent based facts of the vehicle’s screen Dias, (citing stop’s scope. lawful Eleneki’s contention *12 (1980)). 52, P.2d 637 Haw. 609 taint- admitted at trial was that the evidence been excluded there- ed and should have Ohio, however, Terry v. Beginning with correct. fore recog- Supreme has Court the United States based on less that a limited seizure
nized
presents no constitution-
probable
than
cause
Stop
Investigative
was Lawful at
A. The
infirmity
government interest
al
where the
Inception
Its
outweighs
individual’s
being
furthered
intrusion that amounts
right to
of an
be free
suspicion”
appro-
1. “Reasonable
outright
See 392 U.S.
to
than
“arrest.”
less
by
to measure
priate standard
which
1868, 1879-1880,
1, 20-21,
20
88 S.Ct.
constitutionality
stop.
Eleneki’s
York,
(1968); Dunaway v. New
L.Ed.2d 889
argues that
appeal,
the investi
On
2255,
200, 210,
2248,
60
99
442
S.Ct.
U.S.
inception
gative stop
unlawful from its
(1979) (Terry
special
824
“defined
L.Ed.2d
¡seizures’
proscription
violating
constitutional
so
category of Fourth Amendment
against
found
unreasonable seizures3
substantially
intrusive than arrests
less
probable
requiring
to the United States Cons
cause
general
fourth amendment
rule
I,
reason-
7
Ha-
Fourth
‘seizures’
and
section
of the
make
Amendment
titution4
article
test.”).
replaced by balancing
could
able
be
wai'i State Constitution.5
briefly stops person
who
A
officer
upon
provisions
which
The constitutional
suspicion” that
investigate his “reasonable
“ ‘safeguard
priva-
Eleneki relies serve
complicit in immi-
individual is
detained
against
cy
security of individuals
arbi-
and
accordingly acts with-
ongoing crime
or
nent
trary
by government
invasions
officials.’”
bounds,
public
insofar
in constitutional
161, 177-178,
Quino,
840
v.
74 Haw.
State
justi-
prevention and control
interest
crime
(1992) (Levinson, J.,
358,
concur-
P.2d
366
personal
invasion of
secu-
temporary
fies the
Court, 387
ring) (quoting
v. Mun.
Camara
investigative stop occasions.
rity that
1730, 18
523, 528,
1727,
L.Ed.2d
Cortez,
87
U.S.
S.Ct.
See,
449 U.S.
v.
e.g., United States
Arvizu,
(1967));
697,
421,
690,
v.
411,
930
see also United States
L.Ed.2d 621
66
101 S.Ct.
750,
Prouse,
648,
273,
744,
266,
(1981);
440
122
151
U.S.
534
S.Ct.
Delaware v.
U.S.
1401,
(“The
1391,
663,
when
from
contrast,
- Thus,
majority,
I
general
requirement,
swpra
warrant
see
hold that law enforcement commits no uncon
question
note
the answer to that
lies
acting upon
stitutional
if—when
a
seizure
balancing
respective public
private
alleged probation
valid
warrant
an
arrest
at
interests
stake.
briefly stop moving
violator —officers
a
vehi
justifications
present
supporting
investigate
suspicion
cle
their reasonable
stop
are made substantial
the nature of
that
in the
named
warrant
Chong’s
at
among
occupants.13
types
the misdemeanor offense
issue.
its
As with other
deprivation
personal liberty accompa-
dignities
"unsettling
authority"
11. The
show
that
inevitable,
nying
probation
a
sentence
inas-
accompany the non-consensual law enforcement
probation require,
Prouse,
much as the conditions of
moving
seizure of a
See
vehicle.
alia,
(1) "report
1398;
inter
probation
that
defendant:
to a
Wayne
U.S. at
see also 4
S.Ct.
officer;” (2)
juris-
“remain within the
LaFave,
R.
A
Search and
Treatise on
Seizure:
court;’’ (3) "notify
probation
diction of the
9.2(d);
(3d
1996)
§
Fourth Amendment
at 35
ed.
prior
any change
employ-
officer
in address or
("The typical
investigation
stopping for
be
cannot
ment;”
(4) "permit
probation
officer
anything
complete
time[.]”).
viewed as
but a
restriction on
visit
defendant at the defendant’s home or
liberty
of movement for
706-624(l)(b),
(d),
(c),
(f)
§
elsewhere.” HRS
(1993).
&
sentencing
is of
free
court
course
disagree
majority’s
13.I
contention that
impose more burdensome
on the de-
restrictions
Colgrove,
Neb.
[t]he
determina-
parties. Surely
suspicion
tion of
... will be
between the
no reasonable
reasonable
up
leading
expect
events which occurred
that Eleneki —who had
search,
stop or
decision previously
promoting
then the
illegal
been indicted for
facts,
whether
historical
drawing
these
viewed
narcotics15—would risk
attention
standpoint
objectively
of an
presence
upon
an
certain
area
officer,
suspi-
amount to reasonable
acquaintance,
call of mere
who
himself
part
analysis
cion....
first
just
charged
drug
been
with similar
offenses.
only
involves
a determination of historical
objectively
I
therefore believe that
rea-
facts,
question
but
is a
the second
mixed
that,
suspect
sonable
officer would
on
law and fact: “The
facts
historical
are
relationship, Chong
basis of
their
established,
admitted or
of law is
rule
might again
in each
com-
other’s
undisputed, and the issue is whether the
pany
Chong’s
morning
on the
after
arrest.
satisfy
facts
relevant ...
constitutional
Certainly
good police
“the
work”
essence
standard,
put
way,
or to
it another
whether
requires
reasonably
that officers be
free to
applied
of law as
to the estab-
rule
judgments
act upon their
“commonsense
lished facts is or is not
Pull-
violated.”
Wardlow,
behavior,”
about
inferences
human
Swint,
man-Standard
456 U.S.
at
528 U.S.
S.Ct.
n.
102 S.Ct.
n.
employ
special
within that calculus their
ex-
(1982).
L.Ed.2d 66
pertise concerning
patterns, practices,
States,
Ornelas v.
696-
United
U.S.
typical
ply
illegal
and habits
who
those
1657, 1661-1662,
116 S.Ct.
134 L.Ed.2d
Arvizu,
narcotics trade.
U.S.
Cf.
(1996) (brackets
omitted).
original
(reasonable
at 750-751
S.Ct.
Applying
foregoing principles, I
concur
experi-
“allows officers to draw on their own
investigative stop
with the State that the
specialized training
ence
make infer-
proper
inception. According
at its
from and
ences
deductions about the cumula-
fact,
findings
Sergeants
circuit court’s
Po-
‘might
tive information
available
them
plardo
attempting
Navarro were
lo-
”); Cortez,
person’
well elude
untrained
morning
cate
(“[T]he
U.S.
at 695
S.Ct.
arresting
him an out-
must
evidence
collected
be seen and
standing
arrest warrant.
weighed
library
analysis by
terms of
interrogated Chong
had arrested and
scholars,
but as understood
those versed
previous day
Chong’s apart-
a search of
after
enforcement.”);
Brignoni-
the field
law
*17
crystal methamphetamine.
ment uncovered
(“In
Ponce,
do
The lawfulness of
initial
objectively
afforded the
reasonable
issue,
particularized grounds
longer
question
suspect
becomes wheth-
Chong
continuing
company
was in
er
was likewise
Eleneki’s
time
reason-
stopped.
Prendergast,
consistently
her
This court
vehicle was
See
able.
has
admonished
Hawai'i at
ty’s stop cannot be or even conclusion that ... suspect’s ground regarding [a] on that accords with the decisions tion whereabouts ‘preventative clearly courts that have not warrant do[es] numerous other considered Ward, See, e.g., governmental stop’ United States in the and ren- the issue. interest (9th Cir.1973) (en banc) (cita- police 169 unreasonable” 488 F.2d der[s] (traffic omitted)); Ry question fugitive emphasis about State v. stop driver tion and land, acquaintance’s location held unconstitutional 241 Neb. 486 N.W.2d “[tjhere (traffic emergency no stop was situation unconstitutional where held action,” any nor for immediate and “the aware that de- “deputy [the need was not where pursuant agent’s any not made road was had rule fendant] violated deputy’s ... founded the detainee was the time he stopping [the defendant] volved or about to involved sole omitted)); activity” (emphasis previous acci- State Rich- about obtain statement witnessed”); creek, 1304, 1306-1307 Ariz. had defendant] dent that [the (traffic police whom Colgrove, defendant 253 N.W.2d State v. 198 Neb. something “witnessed] or knew (holding believed unconstitu- held uncon- sus- tionally prolonged about” an earlier traffic accident “[tjhere no it pected carrying fugitives stitutional reason to be- “[w]hen where engaged apparent defendant] was in crimi- for whom [the believe came States, activity”); looking nal in the Hawkins v. United were not officers (D.C.1995) (traffic car”).17 A.2d [defendant’s] questioning victim about two-week-old shooting held unconstitutional where there “ jus- ‘exigent
were no circumstances’ detention”);
tify People v. the officers’
Spencer, N.Y.2d 622 N.Y.S.2d (1995) (traffic “stop [of]
646 N.E.2d premise that he was a
defendant on the
circumstances,
might
temporarily stop moving
Though
well
the result reached here
auto-
occupant
exigent
mobile whose
has eluded
efforts
motivat-
have differed
circumstances
question
regarding
him
criminal activities in
stop,
findings of
ed
the circuit court’s
Eleneki's
suspected.
which his involvement is
That sce-
exigency with
such
fact make mention
here,
nario
Eleneki's
is not
issue
detention
locating Chong. Tellingly,
respect
the deci-
prolonged
potential
was
edge concerning
because of
knowl-
immediately
his ar-
release
after
sion to
location,
party's
third
wanted
interrogation
indicates that the
rest
suspect
and not because she was a criminal
danger
posed
he
believe
either
did not
LaFave,
12, 9.2(b),
supra
§
herself.
note
Cf.
flight
public or a
risk.
("[W]hat
authority
subject
little
exists
that the Fourth Amendment does not
indicates
permit
stopping
potential
witnesses
crime.”).
suspected of
same extent as those
notes
(Iowa
Turner,
2
606 n.
630 N.W.2d
hearing
suppression
testified
that
”
2001);
Smigliano, 427
Mass.
Commonwealth
stopping
'main' and 'initial' reason” for
Ele-
(1998) ("There
N.E.2d
344
is no
question
neki was
her about
reason
—a
contention
there was no basis
merit to the
correctly
majority
which the
concludes was un-
Terry
simply
officer
because the
testi-
Majority
See
102 P.3d at
lawful.
suspect
fied he did not
the defendant
1080-81.
Hawley,
wrongdoing[.]”); State v.
540 N.W.2d
however,
emphasize,
I
that our reasonable sus-
(N.D.1995) ("[T]he reasonable-and-ar-
analysis
picion
objective inquiry,
is
the linch-
an
objective,
ticulable-suspicion standard is
and it
pin
which
which
demands that
"events
hinge upon
subjective
beliefs of
not
does
leading
stop”
up
occurred
must arouse
States,
officer.”);
arresting
United
Whren v.
suspicion
"standpoint
cf.
when
from the
viewed
517 U.S.
S.Ct.
objectively
See
an
officer.”
(1996) ("Not only have we never
States,
L.Ed.2d
held,
U.S.
Ornelas v. United
inventory search
1657, 1661-1662,
(1996).
the context of
outside