Lead Opinion
OPINIONS OF THE COURT
INTRODUCTION
On July 24, 2006, Robert J. MeKnight, Jr. (“McKnight”) was charged via indictment with Count 1, Electronic Enticement of a Child in the First Degree, in violation of Hawaii Revised Statutes (“HRS”) § 707-756 (“Electronic Enticement”), and Count 2, Promoting Child Abuse in the Third Degree, in violation of HRS § 707-752(l)(a). The charges were severed, and the State of Hawaii (“State”) proceeded to trial on Count 1. After a jury trial in the Circuit Court of the Second Circuit (“circuit court”),
MeKnight appealed his conviction for Electronic Enticement, and the State cross-appealed the suppression of certain evidence, including a statement made by McKnight after he was arrested and evidence seized from his residence pursuant to a misdated search warrant. Some of this evidence pertained to the untried charge of Promoting Child Abuse in the Third Degree. The Intermediate Court of Appeals (“ICA”) affirmed McKnight’s conviction and vacated the circuit court’s suppression order.
McKnight raises three questions on certio-rari, printed in the order addressed:
[1]. Did the ICA gravely err by disregarding the plain and unambiguous language of a criminal statute and holding that proof that the defendant used a computer or other electronic device was not part of each element of the offense?
2. Did the ICA gravely err in holding that Mr. McKnight waived his right to counsel after he asserted his constitutional and statutory rights and the police made no effort to find a lawyer, denied his right to contact his mother, and wanted to question him further?
[3]. Did the ICA gravely err when it created a new exception to Hawaii’s exclusionary rule by holding that the use of evidence seized pursuant to an invalid warrant does not violate the right to be free from unreasonable searches, seizures, and invasions of privacy guaranteed by the Hawaii Constitution?
Pursuant to the analysis below, we affirm in part and vacate in part the ICA’s Judgment on Appeal, and remand this case for further proceedings consistent with this opinion.
A. Factual Background
The charges against MeKnight stemmed from an undercover investigation conducted by the Department of the Attorney General.
On July 5, 2006, McKnight communicated with “Chyla” via Yahoo to discuss meeting her in person. McKnight purchased an electronic airline ticket and arranged to fly “Chy-la” from Honolulu to Maui the following day. He provided “Chyla” with the flight information, told her that he would pick her up from the airport, and gave her a description of his ear. On July 6, 2006, the Maui Police Department and the Hawai'i Attorney General’s Office observed McKnight’s car entering Ka-hului Airport at the scheduled arrival time and placed McKnight under arrest for electronic enticement of a child.
At the Wailuku Police Station, Agent Domingo advised MeKnight of his Miranda rights and asked him to complete a constitutional rights form (AG Form CR-1). McKnight stated that he wanted an attorney and init-ialled ‘Tes” next to a question that read “Do you want an attorney now?” Agent Domingo ceased the interview and left the room to confer with Agent Woletta Kim (“Agent Kim”) regarding whether he could ask McKnight for a description of his residence. The agents, who intended to obtain a search warrant for the residence, concluded that such questioning was permissible because it did not involve interrogating MeKnight about the ease. Agent Domingo returned to the interview room minutes later with the intention of further questioning McKnight.
When Agent Domingo re-entered the room, MeKnight asked to call his mother, but Agent Domingo denied the request.
As Agent Domingo began tape-recording their dialogue, however, McKnight again asked if he could call his mother. Agent Domingo responded that he could not promise anything, and it was entirely MeKnight’s decision whether he wanted to give a statement. The transcript reveals the following exchange:
Robert J. McKnight, Jr.: .... Now, will— after this is done, will you allow me to call my mother?
Special Agent Domingo: Again, I’m not going to promise you anything. [ ] If you want to give a statement or not, that’s strictly up to you.... I can’t promise you anything. There’s no promises or guarantees, okay, at this stage.
Robert J. McKnight, Jr.: Okay.
Special Agent Domingo: Do you still want to talk to me?
Robert J. McKnight, Jr.: Not unless I go let my mother know.
Special Agent Domingo: Again, I can’t promise you anything .... I can’t say, okay, I will—I will let you do this if you give me a statement.... There’s no promises, no guarantees. If you want to give me a statement—like you told me that, you know, you changed your mind because you didn’t realize the severity of the crime, then fine. But, again, I can’t promise you anything. You have got to tell me what you want to do, Robert.
*384 Robert J. McKnight, Jr.: Go ahead.
[[Image here]]
Special Agent Domingo: Go ahead what? Robert J. McKnight, Jr.: Continue.
(Emphasis added).
When McKnight agreed to continue, Agent Domingo presented him with a second constitutional rights form, on which McKnight indicated that he did not want an attorney and that he wanted to give a statement. After McKnight completed this form, Agent Domingo proceeded to question McKnight about his conversations with “Chyla” and his intention to meet with her.
That afternoon, Agent Domingo prepared a search warrant for McKnight’s residence and vehicle. He presented the warrant application and his affidavit to Judge Simone Polak of the District Court of the Second Circuit. After finding probable cause, Judge Polak signed the warrant, which authorized agents to search McKnight’s residence and vehicle for evidence of Electronic Enticement, and to seize computers and electronic storage media (e.g., hard drives, modems, digital files, electronically stored records, computer programs, and photographic equipment). The warrant stated: “This warrant may be served and the search made on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]” In a clerical error, however, Judge Polak misdated the warrant as having been signed by her on June 6, 2006.
Agents executed the search warrant that same day at McKnight’s residence and seized, among other things, two computer hard drives, thirty-five floppy disks, and twenty-two DVDs. Subsequent imaging of the hard drives revealed approximately one hundred and fifty-five electronic images and two movies of suspected child pornography, archived files of conversations between McKnight and “Chyla,” and graphic files of McKnight displaying his genitals.
B. The Charge and Trial
The Circuit Court of the Second Circuit granted McKnight’s pretrial motions to suppress the statement he gave after invoking his right to counsel and evidence seized pursuant to the misdated search warrant (“Suppression Order”).
At the conclusion of the trial on the Electronic Enticement charge, the court gave the following jury instruction, over McKnight’s objections:
A person commits the offense of Electronic Enticement of a Child in the First Degree if he intentionally or knowingly uses a computer or any other electronic device to intentionally or knowingly communicate with another person, who represents that person to be under the age of eighteen years, with the intent to promote or facilitate the commission of Sexual Assault in the First Degree or Sexual Assault in the Third Degree, and intentionally or knowingly agrees to meet with another person who represents that person to be a minor under the age of eighteen years, and intentionally or knowingly travels to an agreed upon meeting place at an agreed upon meeting time.
There are five material elements of the offense of Electronic Enticement of a Child in the First Degree, each of which the prosecution must prove beyond a reasonable doubt.
These five elements are:
1. That on or about the 13th day of June 2006, to and including the 6th day of July, 2006, in the County of Maui, State of Hawaii, Defendant ] intentionally or knowingly used a computer or other electronic device; and
2. That the Defendant intentionally or knowingly used a computer or other electronic device to communicate with another person, who represented that person to be under the age of eighteen years; and
3. That Defendant communicated with the other person with the intent to promote or facilitate the commission of Sexual Assault in the First Degree or with the intent to promote or facilitate the commission of Sexual Assault in the Third Degree; and
4. That the Defendant intentionally and knowingly agreed to meet with another person who represented that person to be under the age of eighteen years; and
5. That the Defendant intentionally or knowingly traveled to an agreed upon meeting place at an agreed upon meeting time.
A person commits the felony offense of Sexual Assault in the First Degree if he knowingly engages in sexual penetration with a minor who is at least fourteen years old but less than sixteen years old and the person is not less than five years older than the minor and the person is not legally married to the minor....
A person commits the felony offense of Sexual Assault in the Third Degree if he knowingly engages in sexual contact with a minor who is at least fourteen years old but less than sixteen years old or causes a minor who is at least fourteen years old but less than sixteen years old to have sexual contact with him, and the person is not less than five years older than the minor, and the person is not legally married to the minor....
(Emphasis added.)
A jury found McKnight guilty as charged of Electronic Enticement. The circuit court entered its judgment of conviction and sentence of probation on November 14, 2007 (“Judgment”). McKnight appealed this Judgment.
C. Appeals to the ICA
1. McKnight’s Appeal from the Judgment
On appeal, McKnight argued for the first time that the circuit court plainly erred in failing to instruct the jury that the State was required to prove that he used a computer or electronic device to accomplish each of the three elements of Electronic Enticement, including agreeing to meet with “Chyla” and traveling to Kahului airport.
In response, McKnight contended that the plain language of the statute required the use of a computer or electronic device as to every element, and that this interpretation was not absurd because the State could have convicted him if he had used a computer to purchase an airline ticket to travel to 0‘ahu to meet with “Chyla.”
2. State’s Appeal from the Suppression Order
In its appeal from the Suppression Order, the State argued that the court erred in suppressing McKnight’s statement because McKnight had initiated communication with Agent Domingo, and had voluntarily and knowingly waived his Miranda rights before being questioned. In addition, it maintained that Agent Domingo’s failure to make any efforts to contact an attorney and his denial of McKnight’s requests to contact his mother did not amount to a violation of MeKnight’s constitutional or statutory rights. The State also argued that the court erred in suppressing evidence seized pursuant to the misdated search warrant because the error had been committed by the issuing judge rather than law enforcement agents, McKnight was not prejudiced where the search was otherwise supported by probable cause, the public’s interest in obtaining evidence of crimes against children outweighed the marginal benefits of suppressing such evidence, and a narrow application of ’the good faith exception was warranted under such circumstances.
McKnight, on the other hand, argued that his statement was not voluntarily given because he had unequivocally invoked his right to counsel, his inquiry as to what was going to happen next did not evidence a desire to reinitiate a discussion regarding the investigation, and Agent Domingo’s statement about executing a search warrant was reasonably likely to elicit an incriminating response. McKnight also argued that the error in the issuance date of the search warrant rendered it invalid, and execution of the warrant constituted an invasion of his right to privacy.
3. The ICA’s Opinion
In a published opinion, the Intermediate Court of Appeals (“ICA”) affirmed McKnight’s conviction under HRS § 707-756, vacated the circuit court’s Suppression Order, and remanded the case for further proceedings.
With respect to McKnight’s appeal, the ICA concluded that the circuit court did not plainly err in failing to instruct the jury that HRS § 707-756 required the State to prove that McKnight used a computer or other electronic device to agree to meet “Chyla” or to travel to the agreed-upon meeting place at the agreed-upon time. It concluded that construing the statute otherwise would lead to illogical and inconsistent results by limiting application of the statute to atypical situations.
With respect to the State’s appeal, the ICA overruled its prior decision in State v. Endo,
PART I: HRS § 707-756 DOES NOT REQUIRE THE STATE TO PROVE THAT MCKNIGHT USED A COMPUTER OR ELECTRONIC DEVICE TO TRAVEL TO THE AGREED-UPON MEETING PLACE OR TO AGREE TO MEET WITH “CHYLA”
(By: McKenna, J., with whom Nakayama and Acoba, JJ., join)
We construe the Electronic Enticement statute pursuant to established principles of statutory construction, and hold that the State was not required to prove that MeKnight used a computer or other electronic device either (1) to travel to the agreed-upon meeting place at the agreed-upon time, or (2) to agree to meet with a person representing him- or herself to be under the age of eighteen years. We therefore affirm McKnight’s conviction for Electronic Enticement under HRS § 707-756.
At the time pertinent to this case, HRS § 707-756 (Supp.2006) provided, in relevant part:
(1) Any person who, using a computer or any other electronic device:
(a)Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
(iii)With another person who represents that person to be under the age of eighteen years; and
(b) With the intent to promote or facilitate the commission of a felony:
(i) That is a murder in the first or second degree;
(ii) That is a class A felony; or
(iii) That is an offense defined in section 846E-1;
Agrees to meet with the minor or with another person who represents that person to be a minor under the age of eighteen years; and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time; is guilty of electronic enticement of a child in the first degree.
(Emphasis added).
MeKnight argues that a conviction for Electronic Enticement requires the State to prove that he used a computer or other electronic device not only to communicate with a person who represents him- or herself to be under the age of eighteen years, but also (1) to travel to the agreed-upon meeting place at the agreed-upon meeting time, and (2) to agree to meet the minor, with the intent to promote or facilitate the commission of a felony under HRS § 846E-1. The State, on the other hand, maintains that HRS § 707-756 cannot be interpreted to require the use of a computer or electronic device to travel to a meeting place, because such a construction would create an absurd result, inconsistent with the legislature’s purpose.
“The interpretation of a statute is a question of law reviewable de novo.” State v. Kotis,
A. Legislative History of HRS § 707-756
“When construing a statute, [this court’s] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” Kotis,
[W]e have rejected an approach to statutory construction which limits us to the words of a statute, for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the ease, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.
Keliipuleole v. Wilson,
HRS §§ 707-756 and -757 were first introduced as House Bill 2426 during the 2002 legislative session. The articulated purpose of these statutes was “to deter crimes against minors by ... creating two new offenses of first and second degree electronic enticement of a child, which prohibit the use of a computer or other electronic device to lure a minor to a meeting with intent to commit a felony[.] ” H. Stand. Comm. Rep. No. 417, in 2002 House Journal, at 1399 (emphasis added). Specifically, the legislature expressed a concern regarding the predatory use of computers to target children, and it found that existing laws failed to address the use of new technologies to entice children into meetings for the purposes of committing crimes against them. S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384. It noted, however, that one method of investigation which had proven successful for targeting such crimes was the use of sting operations in which a police officer posed as a minor in chat rooms or e-mail communications with the sex offender. Id.
The Senate Standing Committee explained,
Your Committee finds that the use of the Internet to entice children into meetings has become widespread. Current laws do not specifically address using computers to communicate with minors for purposes of committing crime. This measure would close that loophole, and would allow sex offenders to be investigated and prosecuted before they commit a kidnapping or other crime. One method of investigation that has been successful in arresting sex offenders before a child is hurt has been sting operations in which the sex offender’s intended victim is actually a police officer posing as a minor in chat rooms or E-mail communications. Once the sex offender agrees to meet the child and goes to the meeting place, the offender is arrested.*389 However, the sex offender’s defense to attempted sexual assault is often the defense of impossibility because the person posing as a child was not actually a child. Therefore, it is important to criminalize the sex offender’s predatory computer behavior, so that the offender can be prosecuted for what the offender has actually done, as opposed to what the offender might have been trying to do.
S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384 (emphasis added). Thus, the introduction of these bills enabled the State to prosecute predatory computer behavior where an individual engaged in online communications with a minor, agreed to meet with that person, and physically traveled to the specified meeting place. Id. See also S. Stand. Comm. Rep. No. 3131, in 2002 Senate Journal, at 1498.
The statute that was ultimately enacted, HRS § 707-756, contained three distinct conduct elements: (1) the initial communication with the minor, (2) the agreement to meet with intent to commit a felony, and (3) the act of physically traveling to the agreed-upon place at the agreed-upon time. Viewing the statute in light of the underlying policy which the legislature sought to promulgate, it is apparent that each of these elements served a distinct purpose: requiring that the defendant utilize a computer or electronic device to communicate with a minor addresses the legislature’s concern regarding the use of new technologies to target children; requiring that the agreement to meet be made with felonious intent ensures that the defendant has a culpable state of mind at the time he entices the child into meeting; and requiring that the defendant travel to an agreed-upon meeting place at an agreed-upon meeting time ensures that an individual is prosecuted only in situations where his behavior poses an actual physical threat to the child.
B. Travel to an Agreed-Upon Meeting Place
McKnight argues that the circuit court erred in failing to instruct the jury that the State was required to prove that he used a computer or electronic device to travel to an agreed-upon meeting place at an agreed-upon meeting time. We disagree and conclude, as the ICA did, that extending the computer-use requirement to the act of traveling would be absurd.
Pursuant to established principles of statutory construction, the court will depart from a literal reading of a statute when the plain language results in an “absurd or unjust result” and is “clearly inconsistent with the purposes and policies of the statute.” State v. Park,
Although HRS § 707-756 structurally appears to require that a defendant use a computer or other electronic device to travel to an ágreed-upon meeting place at an agreed-upon time, a literal reading of this paragraph is absurd. As the State correctly points out, computers are not modes of transportation that can be used to travel to a given location. In order to avoid absurdity, as required by the rules of statutory construction, we hold that the HRS § 707-756 does not require the State to prove that the defendant used a
C. The Agreement to Meet
McKnight also argues that the circuit court erred in failing to instruct the jury that the State was required to prove that he used a computer or electronic device to agree to meet with a person who represented herself to be under the age of eighteen years.
In construing each individual part of a statute, the court must consider the statute as a whole to ensure that all parts produce a harmonious and sensible whole.
It is fundamental in statutory construction that each part or section of a statute should be construed in connection with every other part or section so as to produce a harmonious whole. Statutes should be interpreted according to the intent and meaning, and not always according to the letter, and every part thereof must be viewed in connection with the whole so as to make all parts harmonize, if practicable, and give a sensible and intelligent effect to each.
Davis,
At the time of McKnight’s conviction, HRS § 707-756 (Supp.2006) provided, in relevant part:
(1) Any person who, using a computer or any other electronic device:
(a)Intentionally or knowingly communicates:
[[Image here]]
(iii) With another person who represents that person to be under the age of eighteen years; and
(b) With the intent to promote or facilitate the commission of a felony:
[[Image here]]
(iii) That is an offense defined in section 846E-1;
Agrees to meet ... with another person who represents that person to be a minor under the age of eighteen years; and
(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time; is guilty of electronic enticement of a child in the first degree.
(Emphasis added).
Upon initial review, it appears the computer-use requirement in subsection (1) applies to (a) the act of communication, (b) the agreement to meet with intent to promote or facilitate a felony, and (c) the act of traveling to the agreed-upon meeting place at the agreed-upon meeting time. For the reasons noted earlier, however, we have already concluded that extending the computer-use requirement to (e) would be absurd. Imposing the computer-use requirement on the first two conduct elements but not the third renders the statute inconsistent in terms of its structure. In order to construe the statute as a harmonious whole, the computer-use requirement can only logically apply to (a), the act of communicating with a person who represents him- or herself to be under the age of eighteen years, and not to (b) or (c).
If the legislature had intended to extend the computer-use requirement to the agreement to meet, it could have structured the second subsection more naturally to read, “(1) Any person who, using a computer or any other electronic device: (a) ... communicates ...; and (b) Agrees to meet ... with another person who represents that person to be a minor under the age of eighteen years, with the intent to promote or facilitate the commission of a felony....” To sensibly
Accordingly, we affirm the ICA’s Judgment on Appeal to the extent it affirmed McKnight’s conviction on Count 1 for Electronic Enticement of a Child in the First Degree.
PART II: SUPPRESSION OF MCKNIGHT’S STATEMENT WAS PROPER WHERE AGENTS FAILED TO OBTAIN A VOLUNTARY WAIVER OF HIS MIRANDA RIGHTS
(By: McKenna, J., with whom Recktenwald, C.J., Nakayama, and Acoba, JJ., and Circuit Judge Trader join).
We hold that MeKnight’s statement to Agent Domingo was obtained in violation of his constitutional right against self-inerimination, and that the circuit court properly suppressed this statement at trial.
McKnight argues that the circuit court properly suppressed his statement to Agent Domingo because agents failed to obtain a valid waiver of his Miranda rights, and that the ICA erred in vacating the court’s suppression order. The State contends that McKnight’s statement was voluntarily given after McKnight initiated communication with Agent Domingo and waived his right to counsel; in addition, it argues that Agent Domingo’s failure to immediately contact an attorney, his intention to further question McKnight, and his denial of McKnight’s statutory right to call his mother did not detract from this voluntary waiver of rights.
This court answers questions of constitutional law by exercising its independent judgment based on the facts of the case and reviewing such questions under the “right/wrong” standard. State v. Jenkins,
A. The Right Against Self-Incrimination
Article I, section 10, of the Hawaii Constitution and the Fifth Amendment of the United States Constitution both recognize the right against self-incrimination and require the State to show that certain procedural safeguards are taken to advise a criminal defendant of his constitutional rights before custodial statements may be used against him as direct evidence or impeachment evidence. State v. Ketchum,
When a defendant makes an unequivocal request for counsel during custodial interrogation, all questioning must cease until counsel is present or until the defendant himself reinitiates further conversation. Edwards v. Arizona,
B. Voluntary, Knowing, and Intelligent Waiver of Rights
Once a defendant invokes his right to counsel, the police must cease all interrogation. See Ketchum,
A defendant may open the door to the possibility of further questioning by initiating communication with the police and voluntarily waiving his constitutional rights. Oregon v. Bradshaw,
Substantive questioning may continue only if the defendant voluntarily, knowingly, and intelligently waives his Miranda rights. State v. Hoey,
In this ease, McKnight unambiguously invoked his right to counsel when he indicated that he did not want to give a statement and wanted an attorney present while being questioned. This invoked the bright-line rule under Edwards v. Arizona,
Agent Domingo initially ceased questioning McKnight, but he later returned to the room with the intention of further questioning McKnight to obtain information he hoped to use in a warrant application. In the meantime, Agent Domingo did not attempt to contact an attorney on McKnight’s behalf, ask McKnight whether he wished to contact an attorney, or provide McKnight an opportunity to call an attorney. When McKnight asked what was going to happen next, Agent Domingo stated that they planned to execute a search warrant on his residence; at the time, agents had not yet obtained a search warrant for MeKnight’s residence. McKnight then offered to give a statement; however, he again indicated that he wished to speak to his mother. When Agent Domingo responded that he could not promise anything, McKnight finally agreed to continue with a statement. It was only after this confluence of events that McKnight agreed to waive his right to an attorney and give a statement.
The totality of the circumstances establishes that McKnight did not reinitiate contact with Agent Domingo, and his subsequent waiver of Miranda rights was not voluntarily give. In addition to failing to make a reasonable effort to contact an attorney, Agent Domingo’s conduct and his comment about executing a search warrant on McKnight’s residence were reasonably likely to elicit an incriminating response.
For the reasons stated above, we vacate the ICA’s judgment vacating the circuit court's February 1, 2007 order granting MeKnight’s motion to suppress his statement as involuntary.
PART III: THE CIRCUIT COURT ERRED IN SUPPRESSING EVIDENCE OBTAINED PURSUANT TO THE SEARCH WARRANT
(By: Reektenwald, C.J., with whom Nakayama, J., and Circuit Judge Trader join)
We hold that under the circumstances of this ease, the evidence seized pursuant to a search warrant containing a scrivener’s error should not be suppressed. Police seized hundreds of files of suspected child pornography pursuant to a search warrant supported by probable cause. The issuing judge misdated the warrant, but the actual date of issuance was never in dispute and the warrant was timely served. Under these circumstances, no constitutional or other violation occurred, and suppression of the evidence would not serve any of the purposes of the exclusionary rule. Accordingly, the circuit court erred in suppressing this evidence.
The Hawaii Constitution protects against unreasonable searches, seizures, and invasions of privacy. Haw. Const, art. I, section 7 (1978) (providing that “[t]he 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”). In addition, a judge must also follow statutory requirements when issuing a search warrant. See HRS §§ 803-31 to -34 (1993). In particular, HRS § 803-34 describes requirements with regard to a warrant’s form and content:
[t]he warrant shall be in writing, signed by the magistrate, with the magistrate’s official designation, directed to some sheriff or other officer of justice, and commanding the sheriff or other officer to search for and bring before the magistrate, the property or articles specified in the affidavit, to be disposed of according to justice, and also to bring before the magistrate for examination the person in whose possession the property or articles may be found.
Hawaii Rules of Penal Procedure (HRPP) Rule 41 (2010) further establishes specific requirements that judges must follow when issuing a search warrant. Specifically, HRPP Rule 41(c) provides, in relevant part, that a warrant “command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property specified.”
Viewed against the foregoing authorities, the judge’s scrivener’s error did not render the warrant invalid. As stated above, in compliance with HRPP Rule 41(c), the search warrant stated that it “may be served and the search made on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]” (Emphasis added). Although Judge Polak indicated on the search warrant that she signed it on June 6, 2006, no one disputes that the search warrant was in fact signed and issued on July 6, 2006.
MeKnight does not argue that the search was conducted ten days after the warrant was issued, nor does he argue that the warrant was not supported by probable cause. Rather, he argues that the evidence obtained pursuant to the warrant must be suppressed solely because the judge misdated the warrant.
Numerous jurisdictions have rejected the contention that scrivener’s errors render a search warrant invalid.
There is no explicit constitutional requirement for a particularized date or, for that matter, for any date at all; rather, the constitution requires only that the warrant be based “upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
State v. Radford,
Jurisdictions that have refused to invalidate search warrants because of a scrivener’s error also include states with constitutions that, like ours, recognize the right against unreasonable invasions of privacy as part of their constitutional search and seizure provisions. For example, the Supreme Court of South Carolina expressly refused to find that the misdating of a search warrant rendered it invalid. State v. Shupper,
In another jurisdiction with a constitutional privacy provision similar to Hawaii’s, the Court of Appeal of Louisiana held that a search warrant erroneously dated five months prior to its actual issuance date was not invalid. State v. E.J.F.,
Similarly, the Appellate Court of Illinois upheld the validity of a warrant, which erroneously indicated an issuance time that was about ten hours after the search was actually conducted.
In sum, the clerical error in the instant ease did not render the search warrant invalid.
Moreover, suppressing the evidence would not further any of the purposes of Hawaii’s exclusionary rule. This court has recognized three purposes underlying Hawaii’s exclusionary rule: (1) judicial integrity, (2) the protection of individual privacy, and (3) deterrence of illegal police misconduct. State v. Torres,
First, suppressing the evidence would not enhance judicial integrity. “The ‘judicial integrity1 purpose of the exclusionary rule is essentially that the courts should not place their imprimatur on evidence that was illegally obtained by allowing it to be admitted into evidence in a criminal prosecution.” Torres,
Here, there is no harm to judicial integrity in admitting the seized evidence at issue because, as discussed supra, the mere scriv
Second, suppressing the evidence would not serve to protect individual privacy rights. The “primary purpose of both the Fourth Amendment and article I, section 7 [of the Hawai'i Constitution] is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.” State v. Lopez,
Finally, suppression would not advance the principle of deterring illegal police conduct. As stated above, Agent Domingo properly presented a search warrant supported by probable cause to the district court, the search warrant limited the search to no later than July 16, 2006, a date not exceeding 10 days after July 6, 2006, when the warrant was issued, and the resulting search occurred that day. The only issue here is a clerical error made by the court. Simply stated, no illegal police conduct occurred. Accordingly, suppression of the evidence obtained as a result of the search warrant would not serve to deter law enforcement misconduct.
In sum, the clerical error by the issuing judge did not render the search warrant invalid, and suppressing evidence seized pursuant to the warrant would not further the purposes of the exclusionary rule where, as in this case, the warrant was supported by probable cause, the evidence demonstrates the actual date of issuance, and the warrant was executed within the time frame specified in HRPP Rule 41.
Accordingly, we affirm the ICA’s judgment to the extent that it vacates the circuit court’s suppression order as to the evidence obtained pursuant to the search warrant, and remand the case for further proceedings consistent with this opinion.
Notes
. The Honorable Joel E. August presided.
. Upon further questioning, Agent Domingo acknowledged that McKnight could have requested an attorney or asked his mother to hire an attorney; however, he did not know McKnight’s reasons for wanting to call his mother, and he was concerned that McKnight would ask his mother to dispose of evidence before agents could obtain a search warrant.
. Agent Domingo admitted that a search warrant had not yet been prepared but their intention was to apply for one.
. The June 6, 2006 date in the jurat was handwritten by Judge Polak upon issuing the warrant, while the July 16, 2006 date in the final paragraph had been typed by Agent Domingo when he prepared the search warrant application.
. On October 25, 2006, McKnight Filed a Motion to Suppress Statement as Involuntary, on the ground that Agent Domingo had violated his right to counsel, and a Motion to Suppress Evidence Seized Pursuant to Invalid Warrant, on the ground that the warrant was not supported by probable cause. The State filed memoranda in opposition to both motions; and the court conducted an evidentiary hearing on December 8, 2006. After this hearing, McKnight alerted the court to the error in the date on the search warrant and filed a Supplemental Memorandum in Support of his Motion to Suppress Evidence. The State filed a Memorandum in Opposition to Defendant’s Supplemental Memorandum, arguing that the issuance date was merely a clerical error and that the warrant should be upheld under the good faith exception. On February 1, 2007, the circuit court issued its Findings of Fact, Conclusions of Law and Order Granting Defendant's Motion to Suppress Statement as Involuntaiy and Granting Defendant’s Motion to Suppress Evidence Seized Pursuant to Invalid Warrant. With respect to the warrant issue, the circuit court stated that there was probable cause for the search warrant, but suppressed the evidence seized because of the misdating of the warrant pursuant to the ICA’s holding in State v. Endo, 83 Hawai’i 87,
.McKnight objected on the grounds that the jury should not be instructed as to Sexual Assault in the Third Degree, and that the State must prove beyond a reasonable doubt that the character "Chyla” was below the age of 16. He did not argue, however, that Electronic Enticement required the State to prove that he used a computer or electronic device to agree to meet with "Chyla” and to travel to the agreed-upon meeting place at the agreed-upon time; in addition, his own proposed jury instruction did not extend this computer-use requirement to the three conduct elements of the offense.
. McKnight also argued on appeal that the circuit court abused its discretion in permitting the jury to view scenes of him masturbating for "Chyla” via web cam, and that there was insufficient evidence to support his conviction because the State failed to prove that he used a computer or other electronic device to travel to the airport to meet "Chyla.” The ICA held that the court did not abuse its discretion in allowing the jury to view the videos, and McKnight's claim regarding insufficiency of the evidence was without merit. McKnight did not challenge these por
. The ICA consolidated McKnight's appeal from the Judgment and the State’s appeal from the Suppression Order under ICA No. 28901.
. In Endo, a police officer erroneously typed the date of April 14, 1992 on a search warrant he presented to a judge for signature on May 14, 1992.
. The current version, HRS § 707-756 (Supp. 2012), contains the same language except subsection (l)(b)(iii) has been amended to read: "That is another covered offense as defined in section 846E-1.” In addition, the word “and” between subsections (I)(a) and (l)(b) has been removed.
. McKnight did not contend on appeal that there was insufficient evidence to prove that he used a computer or electronic device to "agreed to meet” a person claiming to be a minor; and the State presented evidence that the agreement to meet "Chyla” occurred via online chat.
. We believe this interpretation is also consistent with the legislature's subsequent decision to remove the word “and” between subsections (l)(a) and (l)(b). See HRS § 707-756 (Supp. 2012).
. In addressing McKnight’s motion to suppress, the circuit court found that Agent Domingo had also violated HRS §§ 803-9(2) and (4) by failing to make reasonable efforts to contact an attorney and refusing to allow McKnight to call his mother prior to questioning. It concluded that these statutory violations did not warrant suppression of McKnight’s statement where McKnight failed to show a causal connection between the violations and his statement. The court concluded, however, that McKnight’s statement must be suppressed because it was obtained in violation of his right to counsel.
As the ICA correctly noted, McKnight did not dispute the court’s ruling that the statutory violations did not warrant suppression of his statement. Accordingly, we do not find it necessary to address this issue.
. In Ketchum, officers executing a search warrant for drug contraband detained the defendant in the master bedroom and asked him about his residential address.
Given the circumstances, this court concluded that the defendant’s admissions regarding his address were the product of custodial interrogation in violation of his Miranda rights. Id. at 120-21,
Accordingly, we reaffirm the principle that interrogation consists of any express question— or, absent an express question, any words or conduct—that the officer knows or reasonably should know is likely to elicit an incriminating response. The totality of the circumstances must be considered to determine whether interrogation has occurred, with a focus on the officer's conduct, the nature of the question (including whether the question is a routine booking question), and any other relevant circumstance.
Id. at 121,
. In Ikaika, the defendant invoked his right to counsel when he was detained for questioning as a witness in a murder.
This court held that the relevant inquiry was "whether the police officer should have known that his words or actions were reasonably likely to elicit an incriminating response from the [d]e-fendant."
. This court has held that a defendant's statement was the product of interrogation where an officer’s comment was reasonably likely to elicit an incriminating response—for example, where a detective asked the defendant if he wanted to give "his side of the story,” State v. Eli,
By comparison, we have held that a statement was not the product of interrogation where an officer requested the defendant’s consent to search a nylon bag beneath the driver's seat of a car, State v. Rippe,
. Agent Domingo also testified at the motion to suppress hearing that he presented the search warrant and affidavits to Judge Polak on July 6, 2006.
. Accordingly, although Judge Polak wrote on the affidavit that it was presented to her on June 6, 2006, the contents of the affidavit demonstrate that Agent Domingo presented the search warrant and affidavit to her on July 6, 2006.
. The dissent states that the ten-day limitation as set forth in HRPP Rule 41(c) "protects against stale warrants[.]’’ Dissenting opinion at 408,
. MeKnight argues that “[c]ompliance was impossible” because the warrant limited the search to a date not to exceed ten days from the issuance, and the date of the issuance on the face of the warrant read “June 6, 2006.” However, the warrant expressly specified that July 16, 2006 was the "date not to exceed ten (10) days from the issuancef.]” Thus, compliance with the terms of the warrant, which was actually issued on July 6, 2006, was possible; and, under the undisputed facts of the case, compliance did occur.
. For example, the Ninth Circuit Court of Appeals rejected the argument that a judge’s mis-dating of a search warrant rendered the warrant invalid. See United States v. Hitchcock,
. The dissent argues that the aforementioned Oregon and Arkansas cases are "inapposite” because the constitutions of those states do not contain the same language regarding the right to privacy that appears in our state constitution; namely, the right to be secure in one's "persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy!.] " Dissenting opinion at 407,
. Article 1, section 10 of the South Carolina Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable 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, the person or thing to be seized, and the information to be obtained.
(Emphasis added).
. Article 1, section 5 of the Louisiana Constitution provides:
Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
(Emphasis added).
. Article 1, section 6 of the Illinois Constitution provides:
The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.
(Emphasis added).
.The dissent argues that the foregoing South Carolina, Louisiana, and Illinois cases are not germane to the instant case because those states recognize a general "good faith” exception to the warrant requirement. Dissenting opinion at 418,
. Article II, section 10 of the Montana Constitution provides: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest."
. The dissent appears to distinguish Steffes by noting that the Steffes court's upholding of the search warrant was based on a Montana statute that precluded searches and seizures from being rendered illegal by "irregularities in the proceedings [that] do not affect the substantial rights of the accused.” Dissenting opinion at 418,
. For all of these reasons, we overrule State v. Endo,
Concurrence Opinion
Concurring and Dissenting Opinion to Part I by
in which Circuit Judge TRADER joins.
I respectfully dissent from the majority’s conclusion that a conviction for Electronic Enticement of a Child in the First Degree does not require the State to prove that the defendant used a computer or electronic device to agree to meet a purported minor.
“[T]he fundamental starting point for statutory-interpretation is the language of the statute itself.” First Ins. Co. of Haw. v. A & B Props.,
Electronic enticement of a child in the first degree.
(1) Any person who, using a computer or any other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other person is under the age of eighteen years, and the other person is under the age of eighteen years; or
(iii) With another person who represents that person to be under the age of eighteen years; and
(b) With the intent to promote or facilitate the commission of a felony:
(i) That is a murder in the first or second degree;
(ii) That is a class A felony; or
(iii) That is an offense defined in section 846E-1;
agrees to meet with the minor, or with another person who represents that person to be a minor under the age of eighteen years; and
(c)Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time;
is guilty of electronic enticement of a child in the first degree.
Thus, the statute requires the State to prove that the defendant, “using a computer or any other electronic device,” did three things: (1) intentionally or knowingly communicated with a minor or purported minor, (2) agreed to meet with that minor or purported minor with the intent of promoting or facilitating the commission of certain felonies, and (3) intentionally or knowingly traveled to the agreed upon meeting place. As the majority acknowledges, given the placement of “a computer or any other electronic device” requirement in the introductory sentence of the statute, it appears that the requirement applies to all three actions subsequently identified in subsections (a) to (c). Majority opinion at 389,
However, it is well-settled that “departure from a literal construction of a statute ⅛ justified when such construction would produce an absurd ... result and the literal construction in the particular action is clearly inconsistent with the purposes and policies of the act.’ ” Estate of Roxas v. Marcos,
However, as the majority notes, there is nothing absurd about applying that requirement to subsection (b) of the statute, i.e., requiring the State to prove that the defendant used a computer or other electronic device when agreeing to meet with the minor or purported minor, since it is quite possible to use a computer in that manner. See majority opinion at 389,
I respectfully disagree with that conclusion. There is nothing incoherent about requiring the State to prove that a computer or other electronic device was used to reach the agreement to meet. To the contrary, imposing that requirement is consistent with the legislature’s understanding of the purpose of the statute as reflected in the title of section 707-756, which is “Electronic enticement of a child in the first degree.” (Emphasis added). Cf. Moyle v. Y & Y Hyup Shin, Corp.,
As the title of section 707-756 indicates, the legislature intended that the “enticement” be undertaken by “electronic” means. It is therefore consistent with that intent to require that a computer or other electronic device be used to accomplish the actions described in subsection (b). Indeed, those actions (an agreement to meet with a minor or purported minor with the intent to promote or facilitate the commission of various felonies) closely track the common understanding of “enticement,” which is “[t]he act or an instance of wrongfully soliciting or luring a person to do something.” Black’s Law Dictionary 611 (9th ed. 2009); see also id. at 612 (defining “enticement of a child” as “[t]he act or offense of inviting, persuading, or attempting to persuade a child to enter a vehicle, building, room, or secluded place with the intent of committing an unlawful sexual act against the child”).
By contrast, under the majority’s approach, the State only would need to show that the defendant used a computer or other electronic device to “communicate” with the minor or purported minor at some point. Respectfully, that interpretation easts a much wider net of culpability than the legislature intended when it criminalized “[e]lee-tronic enticement” in section 707-756. Under the majority’s interpretation, a defendant (for example, a sports coach or music instructor) who communicates with a minor online with no criminal intent, and who then interacts with that child in person for years before finally developing an unlawful intent and agreeing in person to meet the child to further that intent, could be guilty of violating section 707-756. While such a person’s actions would be deplorable, they would not appear to constitute the “electronic enticement” that the legislature sought to criminalize in this statute.
However, even assuming for purposes of argument that the statute is somehow ambiguous and that resort to the legislative history is therefore appropriate, that history nonetheless supports the understanding of the purpose of the section that is reflected in its title, “Electronic enticement.” When the legislature enacted section 707-756 in 2002, the House Judiciary and Hawaiian Affairs committee stated that the purpose of the legislation was to deter crimes against minors by, inter alia, “[cjreating two new offenses of first and second degree electronic enticement of a child, which prohibit the use of a computer or other electronic device to lure a minor to a meeting with intent to commit a fe!ony[.]” H. Stand. Comm. Rep. No. 417, in 2002 House Journal, at 1399 (emphasis added). Similarly, the Senate Judiciary Committee noted that “the use of the Internet to entice children into meetings has become widespread and current laws do not specifically address using computers to communicate with minors for purposes of committing crimes.” S. Stand. Comm. Rep. No. 3131, in 2002 Senate Journal, at 1498 (emphases added). The Senate Health and Human Services Committee further stated the following with regard to the electronic enticement legislation:
This measure would close that loophole, and would allow sex offenders to be investigated and prosecuted before they commit a kidnapping or other crime. One method of investigation that has been successful in arresting sex offenders before a child is hurt has been sting operations in which the sex offender’s intended victim is actually a police officer posing as a minor in chat rooms or E-mail communications. Once the sex offender agrees to meet the child and goes to the meeting place, the offender is arrested. However, the sex offender’s defense to attempted sexual assault is often the defense of impossibility because the person posing as a child was not actually a child. Therefore, it is important to criminalize the sex offender’s predatory computer behavior, so that the offender can be prosecuted for what the offender has actually done, as opposed to what the offender may have been trying to do.
S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384 (emphasis added).
For all these reasons, I conclude that the circuit court plainly erred in failing to instruct the jury that the State was required to prove that McKnight used a computer or other electronic device to agree to meet with Chyla for illicit purposes.
“[Ojnee instructional error is demonstrated, we will vacate, without regard to whether timely objection was made, if there is a reasonable possibility that the error contributed to the defendant’s conviction, i.e., that the erroneous jury instruction was not harmless beyond a reasonable doubt.” State v. Nichols,
Here, the State did not argue that any error in this respect was harmless, and it does not readily appear from the record that McKnight only used electronic devices to agree to meet with Chyla. Accordingly, it would appear that the erroneous jury instruction was not harmless beyond a reasonable doubt. Therefore, I would vacate McKnight’s conviction.
. However, as stated infra, I concur in the majority’s conclusion that the Electronic Enticement of a Child statute does not require a defen
. Although McKnight argues that we should read the statute as simply requiring that a computer be used in some way to facilitate the travel (such as to purchase tickets online), that is not how the statute is drafted; rather, it requires that the defendant "use[]” a computer or other electronic device to travel to the meeting place.
Dissenting Opinion
Dissent to Part III: Regarding the Search Warrant, by
with whom McKENNA, J., joins.
Ours is a long legal history and tradition of protecting the privacy rights of all persons within the State’s territorial boundaries. This fundamental pillar of our State bill of rights can only endure if the judiciary remains faithful to holding inviolate individual protections under the Hawai'i Constitution. Although not labeled as such, the decisions by the majority on the warrant issue herein (Opinion of the Court with respect to Part III, by Recktenwald, C.J.) (hereinafter “majority opinion”) and the Intermediate Court of Appeals (ICA) are an embracement of the so-called “good faith” rule, applicable in federal courts, see discussion infra. That rule is inimical to the privacy protections under the Hawai'i Constitution, and up to this point has been rejected by this court. Respectfully, the majority’s and the ICA’s decisions will, as in the federal courts, render the right of privacy inhering in the right against unreasonable searches and seizures and as an independent right, an empty guarantee.
The underlying premise of the majority’s opinion and its abrogation of State v. Endo,
I.
In its early decisions, the United States Supreme Court held that the Fourth Amendment “forever seeure[d] the people, their persons, houses, papers and effects, against all unreasonable searches and seizures under the guise of law.”
The exclusionary rule stands for the proposition that in a “prosecution, the Fourth Amendment bars the use of evidence secured through an illegal search and seizure.” Mapp,
Two decades later, in a substantial shift from Mapp, the Court in United States v. Leon,
On review, the Court assumed that the warrant was unsupported by probable cause, but instead of concluding that suppression was the proper remedy under existing precedent, the Court held that the police execution of a warrant was objectively reasonable. Id. at 926,
Justice Brennan, joined by Justice Marshall, wrote in dissent that “[t]he judiciary is responsible, no less than the executive, for ensuring that constitutional rights are respected.” Id. at 932,
the relaxation of Fourth Amendment standards seems a tempting, costless means of meeting the public’s demand for better law enforcement. In the long run, however, we as a society pay a heavy price for such expediency, because as Justice Jackson observed, the rights guaranteed in the Fourth Amendment “are not mere second-class rights but belong in the catalog of indispensable freedoms.” Brinegar v. United States,338 U.S. 160 , 180,69 S.Ct. 1302 , 1313,93 L.Ed. 1879 (1949) (dissenting opinion). Once lost, such rights are difficult to recover.
Id. at 959-60,
In his dissent, Justice Stevens wrote that “[ejourts simply cannot escape them responsibility for redressing constitutional violations ... since the entire point of police conduct that violates the Fourth Amendment is to obtain evidence for use at trial.” Id. at 978,
The Court has since broadened the good-faith exception. In Illinois v. Krull,
Then, in Herring v. United States,
Herring, however, held that although the police may have been negligent in executing an invalid warrant, police negligence does not trigger suppression under the exclusionary rule. See id. at 140-47,
Thus, the Court employed a cost-benefit test, first used in Leon, holding that in order to “trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price being paid by the justice system.” Herring,
Thus, on the federal level, the application of the good-faith exception has effectively eliminated any Fourth Amendment protection afforded by the probable cause requirement of the warrant clause and the reasonableness requirement for governmental searches. The safeguards provided by the exclusionary rule have been largely eviscerated. “Herring ... has weakened the exclusionary rule by rendering it inapplicable to ‘police mistakes that are the result of negligence ... [and] foreshadows the elimination of the exclusionary rule altogether.’ ” Claire Angelique Nolasco, et. al., What Herring Hath Wrought: An Analysis of Post-Herring Cases in the Federal Courts, 38 Am. J. Cr. L. 221, 230 (2011) (quoting United States v. Jones,
II.
However, “[s]tate courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the
It is established that the Hawaii Constitution provides greater protection for individual liberties than those afforded under the United States Constitution. Article I, section 7 of the Hawaii Constitution states:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and persons or things to be seized or the communications sought to be intercepted.”
Haw. Const, art. I, § 7 (emphasis added). This provision of the Hawaii Constitution “provides broader protection than the [FJourth [AJmendment to the United States Constitution because it also [expressly] protects against unreasonable invasions of privacy.” State v. Dixon,
Specifically, “the purpose of ... article I, section 7 is to protect individuals against intrusions by the government.” State v. Kahoonei,
Petitioner/Defendant-Appellee Robert J. McKnight, Jr. (McKnight) argues that the exclusionary rule must apply to the evidence seized from his home on July 6, 2006 because the misdated warrant authorizing the search and seizure was facially invalid. In response, RespondentyPlaintiff-Appellant State of Hawaii (the State) contends that because the warrant stated that it “may be served and the search made on or before July 16.2006, a date not to exceed ten (10) days from the issuance of this search warrant,” and the warrant was in fact issued and executed on July 6, 2006, the warrant was not invalid. (Emphasis added.) However, at the bottom of the search warrant, the warrant stated, “GIVEN UNDER MY HAND, and dated this 6th day of June, 2006, at Wailuku, County of Maui, State of Hawaii.” (Emphases added.)
A
The majority contends that “there is no requirement under the Hawaii constitution, HRS, or HRPP that the issuing judge must write the exact date of issuance on all search warrants.” Majority’s opinion at 382 n. 1,
In stating that there is no requirement for an issuance date to be listed on the warrant, the majority suggests that the date may be inexact as written on the warrant, but the warrant would still be valid. However, this is directly contrary to the requirement of Rule 41© that the warrant specify a “period of time not to exceed 10 days.” This ten day limitation protects against stale warrants, where evidence may have been moved from the places described in the warrant or consumed. Cf. Commonwealth v. Edmunds,
In this case, “the specified period of time” was unclear on the face of the warrant, and thus HRPP Rule 41© was not satisfied, contrary to the majority’s suggestion. The warrant states that it was “Given”, i.e., issued, by the district court on the stated date of June 6, 2006. Under one reading of the warrant, the June date, apparent on the face of the warrant, would indicate that the warrant was valid from June 6, 2006 (“the issuance of this search warrant”) through July 16, 2006. This would directly violate Rule 41©, which states that the specified period of time is “not to exceed 10 days.” Another reading of the warrant would be that it was valid for ten days following the June 6, 2006 date, indicating that the warrant was valid from June 6, 2006 through June 16, 2006. However, as a consequence, the warrant would have been expired on the date of MeKnight’s arrest and the search of his home and vehicle.
Respectfully, by characterizing the error in this case as a “technical” or “scrivener’s” error, the majority depreciates the importance of the warrant requirement. What is at stake is not merely a question of a “scrivener’s error”, but rather, an invasion of a person’s privacy. See State v. Wallace,
The majority’s solution to any inadequacies in the warrant is to look to external evidence, including the supporting affidavit, which, according to the majority “refutes any notion that the search warrant was signed on June 6, 2006.” Majority’s opinion at 394,
HRPP Rule 41(d) requires that “[t]he officer taking property under the warrant shall give to the person from whom or from whose
First, even assuming that the affidavit was provided to McKnight, by resorting to the use of extrinsic evidence to interpret the warrant’s validity, the majority imposes on parties searched an obligation to interpret conflicting documents and to do so at their peril. The party upon whom the warrant is served is not privy to communications between the police officers and the court, nor usually schooled in judicial interpretation of legal documents. Accordingly, as noted, the warrant must serve to “assure[ ] the individual whose property is searched or seized of the lawful authority of the executing officer,” Chadwick,
In this ease, the majority would prescribe a duty on the party searched to construe the warrant “in pari materia” with any supporting affidavits to determine whether the warrant was valid and to ascertain which of the conflicting dates on the face of the warrant should be used to measure the 10 day requirement. Under the majority’s approach, a lay person must therefore interpret multiple legal documents, including an ambiguous warrant, in order to decide whether he or she should accede to a search by police. Respectfully, it would appear painfully obvious that this burden violates the principle that the person upon whom the warrant is served must be informed that there is an adequate basis for the warrant. Therefore, warrants must be plainly valid on their face. See Illinois v. Gates,
Second, if McKnight was not provided with the affidavit, then the majority’s approach is even more problematic. On its face, the warrant contains conflicting provisions as to whether it was valid from June 6th through July 16th, or from June 6th through June 16th. Either reading of the warrant would violate HRPP Rule 41(b), as explained above. There are also practical ramifications that arise if a search is conducted pursuant to a facially invalid warrant. For example, in Groh, the Ninth Circuit’s decision noted that “the warrant’s facial defect ‘increased the likelihood and degree of confrontation between the [individuals subject to search] and the police’ and deprived [such individuals] of the means ‘to challenge officers who might have exceeded the limits imposed by the magistrate.’” Groh,
Notwithstanding the majority’s arguments as to the interpretation of the dates listed on the face of the warrant, June 6th and July 16, the disposition in this case should have been evident. This jurisdiction had already established, over a decade ago, that a misdated warrant is invalid, and evidence seized as a result must be suppressed. See Endo,
B.
As noted before, by affirming the ICA’s decision, the majority implicitly adopts the ICA’s reasoning in its opinion and the ICA’s reversal of Endo, which was the prior prevailing law in this jurisdiction on this issue. See McKnight,
Prior to the ICA’s decision in the instant case, we held that there are three purposes underlying our exclusionary rule: protection of individual privacy, judicial integrity, and the deterrence of police misconduct. Torres,
Torres reaffirmed the foundational three purposes of the exclusionary rule in our state.
IV.
In its opinion, the ICA held that “misdat-ing of the warrant does not require suppression of the search warrant evidence.” McKnight,
Eschewing its prior decision in Endo, the ICA, herein, reversed the circuit court, citing Lopez to support its view that neither the deterrence of governmental misconduct nor the protection of the privacy rights of our citizens, “would be furthered by suppressing the evidence seized pursuant to the search warrant.” McKnight,
Endo is directly on point, and grounds its holding in the protections afforded individual privacy by the Hawaii Constitution both in article I, section 6 and in Hawaii’s counterpart to the exclusionary rule, at article I, section 7. Under our Constitution, in article I, section 6, government intrusion is justified only if “absolutely neeessary[,]” and, “unlike the federal [constitution], article I, section 7 specifically protects against invasions of privacy.” Endo,
Our willingness to afford greater protection of individual privacy rights than is provided on the federal level arises from our view that the right to be free of ‘unreasonable’ searches and seizures under article I, section 7 of the Hawaii Constitution is enforceable by a rule of reason which requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary. Thus, each proffered justification for a warrantless search must meet the test of necessity inherent in the concept of reasonableness.
Moreover, unlike its federal counterpart, article I, section 7, specifically protects against invasions of privacy.
Although we acknowledge that the Hawaii exclusionary rule serves the valuable purpose of deterring governmental officials from circumventing the protections afforded by the Hawaii Constitution, we now pronounce that an equally valuable purpose of the exclusionary rule under article I, section 7, is to protect the privacy rights of our citizens.
Id. (brackets and alterations omitted) (quoting Lopez,
“[A] court should ‘not depart from the doctrine of stare decisis without some compelling justification.’ ” State v. Garcia,
A.
Because it relied solely on Lopez and neglected to apply Torres, the ICA’s decision conflicts with precedent.
In this jurisdiction’s view, “[t]he purpose of ... article I, section 7 is to protect individuals against intrusions by the government.” Kahoonei,
B.
There is no basis in fact, law, or precedent for overturning the foregoing rule as the ICA did, and as affirmed by the majority. In Endo, a police officer mistakenly typed the wrong date on a search warrant that he submitted to a judge for signature, thereby rendering the warrant invalid. Since a mistake could be made by either a police officer or a judge, the ICA considered it necessary to caution judges as well as police officers “not to prepare, sign, and execute facially expired search warrants.” Endo,
Accordingly, a distinction between an error by a judge and an error by police officer, while recognized under the federal constitution, is not constitutionally warranted, under the Hawai'i Constitution. Here, as in Endo, a search conducted pursuant to a search warrant that is facially expired is not valid. An error by the hand of either a police officer or a judge is not excused to the detriment of privacy rights. Under Article I, section 7, this court must abide by a commitment to the “imperative of judicial integrity” because, as stated in Mapp, the failure of government to abide by its own laws is destructive of the rule of law. Mapp,
C.
Unlike the ICA, the majority does in fact consider the “judicial integrity” purpose of the exclusionary rule, Torres,
V.
The ICA also erred in its analysis of whether suppression would further the two other purposes of the exclusionary rale, the deterrence of police misconduct,
The exclusionary rule imposes a significant and weighty cost on the judicial process and society by requiring the courts to ignore reliable and trustworthy evidence that has a direct bearing on a defendant’s guilt. Where exclusion of the evidence is necessary to further other significant interests, such as deterring government misconduct or protecting privacy rights, the application of the exclusionary rale is justifiable.
McKnight,
A.
1.
The ICA decided that suppression would not “deter law enforcement or governmental misconduct.” McKnight,
But this ignores and entirely exculpates the police officer or officers who received the warrant from the judge and proceeded to execute it, even though the discrepancy on the face of the warrant should have been obvious to the officers. In the first place, the ICA’s reasoning, as discussed above, is contrary to Hawaii law. This jurisdiction’s
Additionally, the question on the federal level, where the sole focus under the exclusionary rule is to deter police misconduct, is whether the evidence seized in this case may be admitted under Herring's elevated standard for suppression if the officers were found to be only negligent. However, if the officers knew of the defect but proceeded to execute the search warrant, their conduct would be considered “reckless” and the evidence suppressible under Herring,
Under Hawai'i’s Constitution, the exclusionary rule encourages conscientious police conduct, and mandates a level of awareness that discourages invasion of individual privacy. It is not unreasonable then, to impress upon the police executing the warrant, the importance of reviewing the document to ensure that the warrant is valid. This is necessary because the execution of an invalid warrant results in the invasion of an individual’s right to privacy, whether the invasion arises from a lack of probable cause, or defective warrants, like the one in this case.
Inasmuch as the exclusionary rale generally serves to deter police officers from subsequent misconduct, suppressing evidence in this case would encourage police officers in the future to review warrants prior to executing them. See Endo,
2.
The majority’s analysis with respect to this issue is relatively brief, but it echoes some of the ICA’s problematic reasoning, and would also exculpate the police officer or officers, who received the warrant from the judge and proceeded to execute it, from responsibility in executing a facially defective warrant. See majority’s opinion at 384,
However, as noted, the police were either (1) negligent in their failure to recognize an obvious discrepancy in the warrant, or (2) reckless in conducting the search even though they knew the warrant contained conflicting dates with respect to its issuance and execution. As discussed, suppressing the evidence obtained in the search would serve to encourage police to ensure a warrant’s facial validity, and discourage them from choosing to ignore a defective warrant and proceeding with a search or seizure anyway.
B.
Manifestly, Hawai'i’s exclusionary rule protects individual privacy rights, as incorporated in article I, section 7 of the Hawai'i Con
1.
As to this purpose, the ICA held that “the suppression of the search warrant evidence [in this case] would also not serve to protect the privacy rights of our citizens.”
First, this contention is circular because it assumes what is at issue, i.e. that government “entitlement to search MeKnight’s residence” was “established.” But whether the government was entitled to search in the first place rests on the question of whether the warrant was valid under our law. If not, then the warrant did not authorize, i.e. “entitle,” the police to enter the premises.
Since, in this ease, the warrant was facially defective, the police did not have authorization to search McKnight’s home, and thus there can be no question that the search invaded McKnight’s privacy. “The sanctity of one’s abode has been embedded in our common law tradition even before the origins of our nation.” State v. Harada,
Further, this court has not viewed the proper issuance of a warrant as depending on whether or not a particular circumstance was “draw[n]” to the benefit or disadvantage of the defendant or the police, as the ICA posits. Respectfully, such a view evinces an hostility to the protection of privacy rights. The privacy right cannot be demeaned by minimizing its invasion as simply a matter of drawing the wrong judge. The defect in a search warrant may result from any number of causes. The fundamental question is whether the warrant is valid;' if it is not, our constitution and case law bar evidence derived from its execution as the most effective way to protect the personal right of privacy. See Kahoonei,
2.
With respect to individual privacy rights, the majority concludes that suppression would not serve to protect those rights. Majority’s opinion at 383,
However, first, this conclusion allows police to ignore mandates with respect to what a valid warrant must contain, including the requirement of HRPP Rule 41 that the warrant “shall command the officer to search, within a specified period of time not to exceed 10 days[.]” HRPP Rule 41© (emphasis added). As noted, the warrant in this ease did not accurately specify a period of time during which the officers could conduct the search.
Second, the specifications for what must be contained in a warrant are an extension of the warrant requirement’s basic protection of the right of privacy. Thus, in conducting a search pursuant to a warrant that does not meet those specifications, the government violates that right. Had the correct date been on the warrant in the instant case, then there would have been no such invasion. However, here, contrary to the majority’s conclusion, there was in fact an invasion of the right to privacy that should not have occurred.
Moreover, the majority adopts the ICA’s argument that suppression only benefits those validly subject to search, but for fortuitously having a judge who made a clerical error. Majority’s opinion at 383,
VI.
In support of its holding, the majority and the ICA cite cases from other jurisdictions.
Indeed, Dalton, Steffes, and the remaining cases cited by the majority are unpersuasive inasmuch as this court has independently analyzed the protections for individual liberties provided under the.Hawai'i Constitution. See Torres,
For example, the Oregon Constitution contains no such language regarding the right to privacy. See Or. Const, art. I, § 9. Thus, the majority’s citation to Dalton and State v. Radford,
The majority also cites to a ease from South Carolina, State v. Shupper,
Finally, Montana’s constitution does contain a constitutional provision recognizing the right to individual privacy, see Mont. Const, art. II, § 10, which has been interpreted to “yield to a compelling state interest!,]” which “exists where the state enforces its criminal laws for the benefit and protection of other fundamental rights of its citizens.” State ex rel. Zander v. District Court,
With respect to the consideration of these ancillary cases, it is worth reiterating that court is the “ ‘ultimate judicial tribunal with final, unreviewable authority to interpret and enforce the Hawaii Constitution^]’ ” State v. Viglielmo,
VIL
Adopting the good faith exception, as the ICA seems to suggest in its opinion and as affirmed by the majority, would undermine the three purposes of article I, section 7. Endo declared that “unlike its federal counterpart, article I, section 7, specifically protects against Invasions of privacy.’”
The exclusionary rule also serves to encourage officers to be careful in not only the preparation, but also the execution of search warrants. As Endo states, this court must consider “the desire to motivate the officials who prepare, sign, and execute search warrants not to prepare, sign, and execute facially expired search warrants.”
Finally, as noted supra, allowing the use of illegally seized evidence can only undermine the integrity of the judiciary. Adopting the good faith exception would leave individuals whose constitutional rights have been violated without a judicial remedy, transforming article I, section 7 into a meaningless provision. In this case, none of the purposes supporting the exclusionary rule were served. As in Kahoonei, “to hold otherwise would needlessly erode one of the fundamental objectives of ... article I, section 7 of the Hawaii Constitution, that is, to deter government agents from bypassing the warrant requirement.” Kahoonei,
VIII.
In light of the foregoing, I would hold that the warrant in this case was invalid, and in confirmation of the purposes behind the exclusionary rule, that the evidence obtained pursuant to the warrant must be suppressed.
. Significantly, Tones was decided before the ICA’s opinion in State v. McKnight,
. The Fourth Amendment to the United States Constitution states:
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.
U.S. Const, amend. IV.
.The Supreme Court had held that ”[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure
. Leon stated that "[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police least negligent, conduct, which has refusing to admit evidence gained as to instill in those particular investigating officers, or in their the very right. By courts hope future counterparts, a greater degree of care toward the rights of an accused.”
. In connection with this reference to the Ed-munds case, the majority observes that in a separate Pennsylvania case, Commonwealth v. Benson,
Furthermore, in Edmunds, the issue was not that the affidavit lacked "requisite facts”, but rather that the "warrant failed to set forth a time frame in which the informants had observed marijuana."
. The U.S. Supreme Court has established that "If 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.... If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, [the Supreme Court!, of course, will not undertake to review the decision. Michigan v. Long,
. Although the U.S. Supreme Court in Groh allowed for the possibility that a warrant may incorporate other documents by reference, it noted that such documents must accompany the warrant. Groh,
. It is not clear from the record if anyone was present at McKnight's home at the time the warrant was executed. McKnight was in custody on that date, and had indicated that he lived with his mother and sister. This would not affect our analysis, inasmuch as the evidence seized was ultimately used against McKnight.
. The majority states that "[n]otably,” McKnight initially argued that there were insufficient facts to establish probable cause to issue the search warrant, and only later argued that the search warrant was facially invalid. Majority's opinion at 382-83,
. The majority holds that "the only basis to suppress the evidence obtained pursuant to the search warrant in this case would be the issuing judge’s typographical error.” Majority's opinion at 398,
. This section also responds to the State’s argument that the ICA’s decision does not compromise the integrity of our judiciary.
. This section also responds to the State’s argument that the ICA's decision does not undermine the exclusionary rule’s goal of deterring police misconduct.
. See also Herring,
. See also State v. Matsunaga,
. This section also responds to the State's argument that the ICA’s decision does not undermine the goal of protecting the privacy rights of our citizens.
. The exclusionary rule serves to uphold the basic historical tenet of privacy in one's own home:
"The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter— all his force dares not cross the threshold of the ruined tenement!”
Harada,
. The majority also cites to the opinion of the Ninth Circuit Court of Appeals in support of its holding that "scrivener’s errors” do not render a search warrant invalid. Majority's opinion at 395-96 n. 21,
. Furthermore, Daltons holding that the inadvertent misdating of the warrant "did not frustrate the constitutional objective served by the statutory requirement that search warrants be dated and executed within five days of their issuance[,]”
. See State v. Covert,
However, our jurisprudence clearly establishes that the warrant in this case was per se invalid because it was mis-dated. See Endo,
. See also State v. Guzman,