State v. SpillnerState v. Spillner
Lead Opinion
On July 20, 2007, the defendant-appellant-petitioner Michael Spillner filed an application for a writ of certiorari urging this court to review the summary disposition order (SDO) of the Intermediate Court of Appeals (ICA) in State v. Spillner, No. 27722,
For the reasons discussed herein, we conclude that Spillner’s points of error are ultimately meritless and, therefore, affirm the ICA’s April 24, 2007 judgment on appeal.
I. BACKGROUND
On February 15, 2005, Officer Takamiya stopped Spillner for sporting illegal window tinting on his vehicle and, during the stop, determined that Spillner had neither a valid driver’s license nor insurance for his vehicle. Officer Takamiya stopped Spillner’s vehicle again, a week later, upon observing that the illegal tinting had not been removed. At the time of the second stop, Spillner’s girlfriend was driving the vehicle, which, Officer Taka-miya determined, was still uninsured. Then, on March 1, 2005, Officer Takamiya once again stopped Spillner, driving the same vehicle, and cited him for offenses one and two.
A. Spillner’s Pretrial Motion To Suppress And The Trial
On August 15, 2005, Spillner filed a motion to suppress “evidence obtained from war-rantless ... seizures of [Spillner] and/or [his] property,” which the district court consolidated with its bench trial. Spillner asserted that:
1. ...
a. ... [T]he justification for the search and seizure conducted by ... [Ojfficer [Takamiya] was based on prior contact with [Spillner],
b. ... [0]fficer [Takamiya] could not have known if [Spillner] had obtained a driver’s license or ... insurance[ ] subsequent to the prior contact....
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e. The interrogation effectuated upon [Spillner] constituted a seizure.
2. The stop and seizure of [Spillner]’s person and property was not supported by ... a reasonable suspicion based on specific articulable facts ... that any criminal activity was afoot.
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4. The charges against [Spillner] constitute fruits of the unlawful stop and seizure.
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... “[B]ut for” the unlawful invasion, the evidence ... would not have been obtained.
(Citing U.S. Const. amends. IV (prohibiting “unreasonable searches and seizures”), XIV (concerning due process); Haw. Const, art. I, § 7 (prohibiting “unreasonable searches, seizures and invasions of privacy”); State v. Bolosan,
On November 30, 2005, the district court conducted both the trial and the hearing on Spillner’s motion to suppress. The only witness was Officer Takamiya, who testified for the plaintiff-appellee-respondent State of Hawaii [hereinafter, “the prosecution”]. The prosecution elicited the following testimony on direct examination:
Q ... [W]ere you assigned on foot or in a vehicle on March lst[, 2005]?
A In a vehicle.
Q And what brought your attention to [Spillner] ...
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... [o]n that very day?
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A I saw ... [his] vehicle making a right turn....
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Q And what brought your attention to [him?] I know you saw the vehicle, but what made it stand out?
A ... [0]ne to two weeks prior to this day, I cited ... Spillner in the exact same vehicle for having illegal front tints and no driver’s license and no insurance.
Q ... [Y]ou were able to recognize the defendant?
A Yes.
Q He was fresh on your mind?
A Yes.
Q And did you recognize the ear[ ] or ... the person?
A ... [B]oth.
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Actually, I recognized the car first and then I could see through the front windshield because the tints were removed, ... and I could see ... Spillner driving.
Q And you recognized his face?
A Yes.
Q ... Upon making this observation, what were you thinking?
A That ... Spillner was driving without a license and no insurance.
Q And what made you ... think that?
A Because I cited him one to two weeks prior[ ]
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... [f]or driving without [a] license and ... without insurance and also the illegal ... tinted windshield.
Q So, upon making these observations, what was your next move?
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A I located him between a quarter mile to half a mile up the street....
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Q ... And he....
A ... pulled over.
Q ... [A]nd once you stopped, who did you see behind the wheel?
A ... Spillner.
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Q ... Was he alone in the vehicle?
A Yes.
Q And did you ask him for his ... license?
A I did knowing that he didn’t have one, but I still asked him for one.
Q And what was his response?
A He said he doesn’t have one.
.... [ (Objection to speculation overruled.) ]
Q ... [D]id [Spillner] make any statements at this point?
A Not that I recall.
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Q ... [D]id you ask for his proof of insurance?
A Yes....
Q Was he able to provide that ... “I
A No....
Q What was his response?
A I’m not exactly sure word for word, but he basically told me that he didn’t have any insurance.
(Some ellipses added and one in original.) At this point, Spillner essentially requested that the court strike Officer Takamiya’s response in accordance with Spillner’s motion to suppress. The court indicated that it “w[ould] take [Spillner’s] objection under advisement.” Spillner’s counsel then cross-examined Officer Takamiya as follows:
Q ... [Y]ou did not observe any outward signs of any traffic violations, isn’t that trae?
A That’s true.
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Q And he pulled over without incident?
A Yes.
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Q And you pulled him over ... on the assumption that he had no driver’s license and was not insured?
A Yes.
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Q Now, from [your earlier traffic stop of Spillner] to March 1st, 2005, you don’t have any first-hand knowledge whether or not he obtained a license in those two weeks, isn’t that true?
A That’s true.
Q You don’t have any first-hand knowledge whether or not he obtained insurance ... in those two weeks, isn’t that true?
A That’s true.
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Q You just assumed based on your prior encounter with him that he wasn’t insured and he had no license?
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A ... As far as the driver’s license, that’s an assumption. As far as the insurance, I stopped his girlfriend driving that same track one week prior without insurance with the same tinted front windshield.
Q ... But between the time that you stopped and cited his girlfriend and when you stopped and cited him on March 1st, ... you don’t have any first-hand knowledge whether or not the vehicle was insured in that one week’s time?
A That’s correct.
The district court also received into evidence, over Spillner’s objection, what purported to be a self-authenticating record from the City and County of Honolulu’s Division of Motor Vehicle, Licensing and Permits demonstrating that Spillner did not have a license on March 1, 2005. Without express reasoning, the district court denied Spillner’s motions to suppress and for judgment of acquittal. As memorialized in its January 4, 2006 judgments, the district court found Spillner guilty as charged and sentenced him to a total of $149.00 in fees, 330 hours of community service, and a one-year suspension of driving privileges.
B. The ICA’s Disposition Of Spillner’s Appeal
On January 20, 2006, Spillner filed a timely notice of appeal. On direct appeal, he reiterated, inter alia, his position that his “stop and seizure ... was not supported by ... a reasonable suspicion based on specific and articulable facts ... that any criminal activity was afoot. The interrogation was therefore without ... justification. The evidence obtained ... and the resulting charges constitute
In its answering brief, the prosecution simply countered that Officer Takamiya’s “observing Spillner]” driving a motor vehicle “one to two weeks after” their earlier encounter was a “specific and articulable fact[ ]” that would give rise to a reasonable suspicion. (Citing State v. Bohannon,
In his reply brief, Spillner attempted to distinguish Decoteau on the basis that the driving privileges of the defendant in that case presumably would have been suspended for a definitive period of time, such that observing the defendant driving within that period of revocation (assuming the officer knew the duration of such period) would create a reasonable suspicion in and of itself, whereas Officer Takamiya had no reason to believe that Spillner had not applied for and received a license during the intervening two weeks and obtained insurance during the intervening one week.
In its SDO, the ICA decided that Officer Takamiya “had ‘reasonable suspicion that [Spillner] was engaged in criminal conduct,’ ” ICA’s SDO at 1 (quoting State v. Eleneki,
C. The Application For A Writ Of Certio-rari And Oral Argument
On July 20, 2007, Spillner filed an application for a writ of certiorari, which this court granted on August 21, 2007. On October 31, 2007, we conducted oral argument on the issue of whether Officer Takamiya’s brief detention of Spillner violated Spillner’s constitutional protections against unreasonable searches and seizures, as guaranteed by the fourth amendment to the United States Constitution
The prosecution emphasized that reasonable suspicion, while more than a mere hunch, does not rise to the level of probable cause. It conceded that it was possible for Spillner to have corrected both his unlicensed condition and to have obtained insurance on his vehicle, but maintained that that did not preclude the officer from being reasonably suspicious that Spillner was engaged in an ongoing violation when the officer observed him operating his vehicle, particularly in light of the fact that the second stop of the vehicle, a week after the initial encounter, revealed that Spillner had not, in the interim, obtained insurance.
II. STANDARD OF REVIEW
A trial court’s ruling on a motion to suppress evidence is reviewed de novo to determine whether the ruling was “right” or “wrong.” State v. Edwards,96 Hawai'i 224 , 231,30 P.3d 238 , 245 (2001) (citing State v. Jenkins,93 Hawai'i 87 , 100,997 P.2d 13 , 26 (2000)). The proponent of the motion to suppress has the burden of establishing, by a preponderance of the evidence, that the statements or items sought to be excluded were unlawfully secured and that his or her right to be free from unreasonable searches or seizures was violated under the fourth amendment to the United States Constitution and article I, section 7 of the Hawai'i Constitution. See State v. Wilson,92 Hawai'i 45 , 48,987 P.2d 268 , 271 (1999) (citations omitted).
Kaleohano,
III. DISCUSSION
A. Reasonable Suspicion Requires An Articulated Rationale That S^ípports The Conclusion That Criminal Activity May Be Afoot, Stifficient To Justify A Brief Investigatory Stop.
There is no dispute that a traffic stop is a form of seizure for constitutional purposes. See, e.g., Bohannon,
“the police officer [can] point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, ... 392 U.S.[1,] 21,88 S.Ct. 1868 ,20 L.Ed.2d 889 [ (1968) ]. The ultimate test in these situations must be whether from these facts, measured by an objective standard, a [person] of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate. [State v. Barnes,] 58 Haw. [333,] 338, 568 P.2d [1207,] 1211 [ (1977) ] (citations omitted).
State v. Powell,61 Haw. 316 , 321-22,603 P.2d 143 , 147-48 (1979).
[Bolosan,78 Hawai'i at 92 ,890 P.2d at 679 ] (some brackets added and some omitted).
Bohannon,
The United States Supreme Court recently, in considering the reasonableness of drug-interdiction traffic stops, expounded on the “reasonable officer” standard employed when weighing the totality of the circumstances:
When discussing how reviewing courts should make reasonable—suspicion determinations, we have said repeatedly that they must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. See, e.g., [United States v. Cortez,449 U.S. 411 ,] 417-[ ]18[,101 S.Ct. 690 (1981)]. This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that “might elude an untrained person.” Id. [ ] at 418[,101 S.Ct. 690 ]. See also Ornelas v. United States,517 U.S. 690 , 699[,116 S.Ct. 1657 ,134 L.Ed.2d 911 ] (1996) (reviewing court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers). Although an officer’s reliance on a mere “‘hunch’” is insufficient to justify a stop, Terry, ... [392 U.S.] at 27[,88 S.Ct. 1868 ], the likelihood of criminal activity need not rise to the level of probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard, [United States v.] Sokolow, [490 U.S. 1 ,] 7[,109 S.Ct. 1581 ,104 L.Ed.2d 1 (1989) ].
United States v. Arvizu,
Spillner, nevertheless, interprets the “objective standard” to mean that the theoretical reasonable observer may not consider the knowledge of any prior contacts in forming reasonable suspicion. In other words, Spill-ner urges that, absent an overt, immediate predicate justification for the traffic stop, such as an illegal maneuver by the driver, the fact that the driver was inadequately credentialed a week or two prior to the instant stop does not justify a stop today. We disagree.
B. Whereas An Officer May Not “Round Up The Usual Suspects,” Reasonable Suspicion Can Be Grounded In The Belief That A Particular Individual Is Engaged In Ongoing Criminal Activity.
The myriad decisions regarding reasonable suspicion decided by courts across the nation—all grounded in a fact-intensive, case-by-case approach—turn on a careful balance between the importance of the state interests implicated and the protections afforded citizens against unreasonable interference with their persons and their effects. As the United States Supreme Court articulated in Delaware v. Prouse,
[t]he essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of “reasonableness” upon the exercise of discretion by government officials, including law enforcement agents, in order “ ‘to safeguard the privacy and security of individuals against arbitrary invasions. ...’” Marshall v. Barlow’s, Inc.,436 U.S. 307 , 312[,98 S.Ct. 1816 ,56 L.Ed.2d 305 ] (1978), quoting Camara v. Municipal Court,387 U.S. 523 , 528[,87 S.Ct. 1727 ,18 L.Ed.2d 930 ] (1967). Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.
Prouse,
The Prouse Court held that effecting a traffic stop upon a vehicle, absent any observed violations of the traffic or vehicle codes, solely to check on the validity of the driver’s license and insurance, amounted to an unreasonable seizure in violation of the fourth amendment to the United States Constitution.
The danger of “the unbridled discretion of law enforcement officials,” id., also prohibits law enforcement from basing a stop solely on an officer’s knowledge of a particular citizen’s criminal background:
[Kjnowledge of a person’s prior criminal involvement (to say nothing of a mere arrest) is alone insufficient to give rise to the requisite reasonable suspicion. That is the direct thrust of our opinion in United States v. Santillanes,848 F.2d 1103 , 1107-08 (10th Cir.1988), ... and we have found no case elsewhere that even suggests the contrary....
If the law were otherwise, any person with any sort of criminal record—or even worse, a person with arrests but no convictions—could be subjected to a Terry-type investigative stop by a law enforcement officer at any time without the need for any other justification at all. Any such rule would clearly run counter to the requirement of a reasonable suspicion, and of the need that such stops be justified in light of a balancing of the competing interests at stake (United States v. Place,462 U.S. 696 , 703,103 S.Ct. 2637 ,77 L.Ed.2d 110 (1983)):
We must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual’s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.
Sandoval,
Nevertheless, we must be careful to distinguish (1) an officer’s improper reliance, in forming reasonable suspicion, on a defendant’s past law violations that have come to an end from (2) an officer’s reliance on knowledge of a suspected ongoing law violation engaged in by the individual in question; the former, if relied upon alone to justify the stop, represents a violation of a citizen’s reasonable expectation to be left alone and our society’s abhorrence of police practices that “ ‘round up the usual suspects,’” Laughrin,
[although we have already emphasized that a person’s prior history of drug arrests is insufficient to establish probable cause, awareness of past arrests may, when combined with other specific articulable facts indicating the probability of current criminal activity, factor into a determination that reasonable suspicion, sufficient to warrant a temporary investigate stop, exists. See United States v. Feliciano,45 F.3d 1070 , 1074 (7th Cir.1995) (emphasizing that “[k]nowledge of ... recent relevant criminal conduct, while of doubtful evidentiary value in view of the strictures against proving guilt by association or by a predisposition based on past criminal acts, is a permissible component of the articulable suspicion required for a Terry stop.” (Emphasis in the original.)).
Kaleohano,
[n]either the fourth amendment nor the Hawaii Constitution
require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.
Id. (quoting Adams v. Williams,
Spillner challenges this conclusion as applied to the instant matter. He contends that, regardless of how close in time prior criminal activity is with current activity of a similar nature, the prior activity cannot be a factor in the analysis of reasonable suspicion and that an officer’s prior knowledge of past violations, • standing alone, can never, as a matter of law, authorize a traffic stop predicated solely upon the officer’s suspicion that a driver is committing the offenses of driving without a license or di'iving.without adequate insurance.
This absolutist proposition is demonstrably flawed. Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers
Even in light of a more protracted interval, however, during which the individual could have corrected the former criminal behavior, a police officer may nevertheless have reasonable suspicion that the person has, in fact, failed to amend his or her behavior. To extend the hypothetical, if the second encounter occurs after the licensing authority has reopened, it would then be conceivable for the defendant to have renewed his or her license in the interim—the realistic likelihood of the defendant doing so increasing with the passage of time—-but, depending on the particular facts informing the officer’s decision, reasonable suspicion could still warrant effecting a traffic stop of the driver, despite the possibility of innocence, because “[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct,” Arvizu,
C. Insofar As (1) In Matters Involving Ongoing Criminal Activity, Timeliness Of Information Is Of Less Import For Reasonable Suspicion Analysis, (2) The Interval In The Present Matter Was Relatively Short, And (3) Officer Takamiya Acted On A Perceived Pattern Of Ongoing License And Insurance Violations, The Stop Was Supported By Reasonable Suspicion.
1. Timeliness of the information is of less import in ongoing violations.
The United States Court of Appeals for the Sixth Circuit recently observed that the timeliness—the “freshness” or “staleness”—of the information upon which the officer relies plays less of a factor in reasonable suspicion analysis if the offense is of an ongoing nature:
In situations where the criminal activity is of an ongoing nature, it will take longer for the information to become stale. See United States v. Greene,250 F.3d 471 , 480 (6th. Cir.2001) (“Evidence of ongoing criminal activity will generally defeat a claim of staleness.”) Driving without a valid license is a continuing offense—-in contrast, say, to a speeding or parking violation....
United States v. Sandridge,
[W]e note at the outset that timeliness of information is but one of many factors in the mix when assessing whether reasonable suspicion for an investigatory detention exists, and the relative importance of timeliness in that mix depends on the nature of the criminal activity at issue. See, e.g., United States v. Cantu,405 F.3d 1173 , 1177 (10th Cir.2005). Thus, for example, when the legal infraction at issue typically wears on for days or weeks or months (like, say, driving without a license orappropriate emissions and safety certifications), rather than concludes quickly (like, say, jaywalking or mugging), the timeliness of the information on which the government relies to effect an investigative detention “recedes in importance” compared to other factors, such as the type and duration of [the] offense at issue. Id.; see also United States v. Mathis, 357 F.3d 1200 , 1207 (10th Cir.2004) (noting that “ongoing and continuous activity makes the passage of time less critical when judging the staleness of information” (internal quotation omitted)).
Cortez-Galaviz,
If there is a reasonable basis in the affidavit for the conclusion that the criminal activity alleged by the informer is of a continuing, ongoing nature, the passage of time between the informer’s last observations of that activity and the issuance of a warrant is less significant than when no such showing is made in the affidavit.
State v. Austria,
[the] existence [of reasonable suspicion] is assessed on a case-by-case basis, in light of all attendant circumstances. When evaluating a claim of staleness, courts do not measure the timeliness of information simply by counting the number of days that have elapsed. Rather, a court must assess the nature of the information, the nature and characteristics of the suspected criminal activity, and the likely endurance of the information.
United States v. Pierre,
2. The nature of the ongoing offense informs the analysis of whether suspected criminal activity is still afoot.
Under circumstances in which the freshness of the officer’s information, when combined with the nature of the license revocation or suspension, has precluded—or all but precluded—a defendant from obtaining the required credentials, courts have concluded that the stop was supported by reasonable suspicion. See, e.g., Stewart v. State,
Conversely, where the information relied upon by the officer was so “stale” that, when considered in light of the length of the license suspension or the ease in obtaining the proper credentials, the logical link between the former illegal activity and any suspicion of current, ongoing criminal activity had dissolved with the passage of time, courts have concluded that investigatory stops were unreasonable. See, e.g., McReynolds v. State,
Within these extremes lies a range where reasonable suspicion generally resides. We deem Sandridge and Laughrin to be particularly instructive “bookends” with respect to the period of time during which an officer may have reasonable suspicion that a driver is engaged in an ongoing offense such as driving without a license.
In both cases, a police officer pulled the defendant over solely on the basis of the defendant’s prior lack of a valid license. In Sandridge, the officer had run a license status check on the driver twenty-two days earlier,
3. On the facts in the record, the stop was supported by reasonable suspicion.
We believe that Sandridge, Laughrin, and other foreign cases support the district court’s and the ICA’s implicit conclusion that (1) Officer Takamiya’s one-week-old knowledge that Spillner’s truck did not carry valid insurance—and that he had not acted to remedy the insurance violation in the preceding week-long interval—and (2) his two-week-old knowledge that Spillner was unlicensed were together sufficiently fresh to give rise to reasonable suspicion to execute the March 1, 2005 traffic stop. See generally Pierre,
the resolution of particularized and objective yet still ambiguous—potentially lawful, potentially unlawful—facts is the central purpose of an investigative detention. See Illinois v. Wardlow,528 U.S. 119 , 125,120 S.Ct. 673 ,145 L.Ed.2d 570 (2000) (“Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation.... Terry recognized that the officers could detain the individuals to resolve the ambiguity.”); Terry,392 U.S. at 22 [,88 S.Ct. 1868 ] (recognizing “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest”).
4. Moreover, the stop was reasonable in light of the interests advanced and the limited nature of the intrusion.
Ultimately, as noted supra, we analyze the reasonableness of a traffic stop
Driving is a privilege, not a right. State v. Davia,
In light of the foregoing reasoning, we affirm the ICA’s April 24, 2007 judgment on appeal.
Notes
. The fourth amendment to the United States Constitution provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....”
. The wording of article I, section 7 of the Hawaii Constitution is virtually identical to its federal counterpart, providing in relevant part 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....”
. It is equally generally uncontroverted that an unreasonable stop, even if temporary, is one in which "the officer purposefully embarked on what was legally nothing more than a fishing expedition, apparently ' "in the hope that something might turn up.” ’ " Sandoval,
. See Cortez-Galaviz,
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent.
The stop of Petitioner/Defendant-Appellant Michael Spillner (Petitioner) on March 1, 2005 by the police, was an unconstitutional seizure under article I, section 7 of the Ha-wai'i Constitution
I.
In State v. Barnes,
Reasonable suspicion, in turn, requires “more than an inchoate and unparticular-ized suspicion or hunch.” United States v. Sokolow,
Furthermore, reasonable suspicion for purposes of an investigative stop is “measured by an objective standard.” State v. Bolosan,
The aforementioned standards apply expressly to investigative stops. Persons may not be subject to such a stop unless it is in accordance with such standards. As explained in Terry, the “entire rubric of police conduct” entails “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” that “as a practical matter could not be[ ] subjected to the warrant procedure.”
the notions which underlie both the ivar-rant procedure and the requirement of probable cause remain fully relevant in this context .... And [thus,] in justifying the particular intrusion the police officer must be able to point to specific and articu-lable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.
Id. (footnote omitted) (emphasis added). Consequently, officers may not circumvent these strictures and detain individuals on the pretext that they are merely verifying or checking certain facts or circumstances. See Brendlin v. California, — U.S. -, -, - n. 2,
Petitioner was cited on February 15, 2005, by Officer Arthur Takamiya (Officer Takami-ya or the officer) for operating a motor vehicle without a license and without insurance, and for operating a vehicle with illegal tint on its front windshield. Approximately one week later Officer Takamiya cited Petitioner’s girlfriend for operating the same vehicle without insurance and for the illegal tint which still remained on the front windshield of the vehicle. Officer Takamiya again stopped Petitioner on March 1, 2005. Petitioner was operating the same vehicle involved in his February 15, 2005 citations and in the subsequent week’s citation of his girlfriend. The illegal tint on the front windshield had been removed by the time of this stop. The officer again cited Petitioner for operating a motor vehicle without a license and without insurance. It is this last stop that is at issue.
Respondent/Plaintiff-Appellee State of Ha-wai'i (Respondent) candidly acknowledged at oral argument that officers typically issue citations under HRS § 286-102 for operating a vehicle without a license even if the operator has a valid license but does not have it in his physical possession at the time of a stop.
The officer forthrightly stated that on March 1, 2005, the date of the stop, he had no specific or articulable facts giving rise to a reasonable suspicion that Petitioner lacked a license or insurance. He also agreed that he “did not observe any outward signs of any traffic violations” committed by Petitioner.
[DEFENSE]: ... [0]n ... March 1st, 2005, you did not observe any outward signs of any traffic violations [by Petitioner], isn’t that true?
[OFFICER TAKAMIYA]: That’s true.
[DEFENSE]: He didn’t speed or weave or run a red light, any of those variety of traffic offenses?
[OFFICER TAKAMIYA]: ... [N]o, it was all good.
(Emphasis added.)
Officer Takamiya further confirmed that “he had no first hand knowledge of whether [Petitioner] was actually driving'without a license or that the vehicle was not insured.”
[DEFENSE]: Now from February 15th to March 1st, 2005, you don’t have any first-hand knowledge whether or not he obtained a license in those two weeks, isn’t that true?
[OFFICER TAKAMIYA]: That’s true.
[DEFENSE]: You don’t have any firsthand knowledge whether or not he obtained, insurance ... in those two weeks, isn’t that true?
[OFFICER TAKAMIYA]: That’s true.
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[DEFENSE]: ... [B]ut' for all you know, [Petitioner’s vehicle] could have been insured and [Petitioner could have been] licensed on March 1st, 2005, isn’t that true?
[OFFICER TAKAMIYA]: Yes.
(Emphases added.)
Indeed, Officer Takamiya testified during trial that the reason he thought Petitioner had no license was “[b]ecause [he] cited [Petitioner] one to two weeks prior” and that he therefore assumed that Petitioner did not have á driver’s license or insurance on March 1, 2005. Officer Takamiya also indicated a reason he thought Petitioner’s vehicle was not insured was because he “stopped [Petitioner’s] girlfriend driving that same truck one week prior [to the March 1, 2005 stop] without insurance and with the same tinted front windshield.”
Direct Examination
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[PROSECUTION]: Upon [recognizing Petitioner as he was driving] what were you thinking?
[OFFICER TAKAMIYA]: That [Petitioner] was driving without a license and no insurance.
[PROSECUTION]: And what made you think that?
[OFFICER TAKAMIYA]: Because I cited him one to two weeks 'prior.
[PROSECUTION]: For that?
[OFFICER TAKAMIYA]: For driving without license and driving without insurance and also the illegal front tinted windshield.
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Cross Examination
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[PETITIONER’S DEFENSE COUNSEL (DEFENSE) ]: And you pidled [Petitioner] over March 1st, 2005, on the assumption that he had no driver’s license and was not insured?
[OFFICER TAKAMIYA]: Yes.
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[DEFENSE]: You just assumed based on your prior encounter with [Petitioner] that he wasn’t insured and he had no license?
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OFFICER TAKAMIYA: ... As far as the driver’s license, that’s an assuonption. As far as the insurance, I stopped his girlfriend driving that same truck one week prior without insurance with the same tinted front windshield.
[DEFENSE]: ... But between the time that you stopped and cited his girlfriend and when you stopped and cited him on March 1st, ... you don’t have any firsthand knowledge whether or not the vehicle was insured in that one week’s time?
OFFICER TAKAMIYA: That’s correct.
Assuming access to information regarding drivers’ licenses and auto insurance was available, Officer Takamiya did not call the dispatch center and did not have any computerized check performed to determine whether any records indicated Petitioner had obtained
III.
Based on the foregoing facts and testimony of Officer Takamiya, his belief that Petitioner did not have a license and insurance on March 1, 2005, was not grounded in any specific or articulable facts of an objective nature. Thus, exercising “reasonable caution,” Bolosan,
Furthermore, Officer Takamiya admitted that he only assumed Petitioner did not have a license “[bjeeause [he] cited [Petitioner] one to two weeks prior” for driving without a license. Likewise, when Officer Takamiya was questioned during cross examination as to why he thought Petitioner’s vehicle had no insurance, he referred to the fact that he issued a citation to Petitioner’s girlfriend for operating the vehicle in question without insurance. Thus, Officer Takamiya’s belief that Petitioner lacked a license and insurance on March 1, 2005, was “an inchoate and unpartieularized suspicion or hunch,” Sokolow,
A police officer is not excused from complying with the standards applicable to an investigative stop merely because he may have wanted to verify or check that a driver had obtained a license and insurance. These standards apply expressly to such investigative stops and have evolved specifically to balance the interests presented in two competing arguments: (1) “that in dealing with the rapidly unfolding and often dangerous situations on city streets[,] the police are in need of an escalating set of flexible responses” and (2) “that the authority of the police must be strictly circumscribed by the law of arrest and search as it has developed to date in the traditional jurisprudence of the Fourth Amendment,” Terry,
Officer Takamiya’s only basis for stopping Petitioner was his knowledge of Petitioner’s prior citations and the citation of Petitioner’s girlfriend, which as discussed infra in section IV, is insufficient to constitute reasonable suspicion.
A.
As Petitioner argues, this court held in State v. Kaleohano,
Other courts expressly hold that prior violations or criminal history do not give rise to reasonable suspicion that criminal activity is afoot and therefore may not serve as the sole basis for a stop. In that regard, Petitioner cites Robinson v. State,
Similarly, in United States v. Jerez,
The alleged “specific and articulable facts” in the instant case amount to no more than Officer Takamiya’s prior knowledge of Petitioner’s previous citations and the operation of the vehicle by his girlfriend without insurance, both within a span of one to two weeks before the subject stop. Following the logic of the aforementioned cases, this knowledge, standing alone, did not give rise to a reasonable suspicion that Petitioner was committing the offense of driving without a license or of driving without insurance specifically on March 1, 2005.
B.
The rationale behind the prohibition on reliance of prior criminal history as the sole basis for detention arises from a recognition that “[i]f the law were otherwise, any person with any sort of criminal record-or even worse, a person with arrests but no convictions-could be subjected to [an] investigative stop by a law enforcement officer at any time without the need for any other justification at all.” Sandoval,
Because Respondent cites no other facts aside from the Officer’s knowledge of Petitioner’s previous citations that could, under an objective standard, give rise to the requisite reasonable suspicion, this stop was not
V.
The majority argues that (1) an officer’s knowledge of an individual’s past law violations may authorize a traffic stop if the violation of which the individual is suspected is an “ongoing” violation, majority opinion at 358,
VI.
A.
As to the majority’s first argument, the majority cites Deboy v. Commonwealth,
Obviously, this case is not authority for the majority’s “ongoing” violation thesis. In the instant case, Officer Takamiya only had knowledge that Petitioner had received citations for driving while unlicensed and for driving without insurance. Contrary to the majority’s opinion, such violations are not analogous to a violation for a suspended license because the Petitioner could have cured these violations at virtually any time after the initial citations. Officer Takamiya even agreed during cross examination that Petitioner could have been licensed and could have been insured by March 1.
Therefore, the violations for which Petitioner was cited should not be included in the category of so called “ongoing” violations which, under the majority’s view, are excepted from the rule that past violations, standing alone, do not give rise to reasonable suspicion. Indeed, the majority cites no cases which hold that where there is no evidence that a defendant’s license has been suspended or revoked, standing alone, an officer’s knowledge that the defendant received a citation for driving without a license or without insurance is classified as an “ongoing” crime for which a separate reasonable suspicion standard is applicable.
The crucial distinction of course between Deboy and this case is that, a defendant .with a suspended license generally cannot alter his status as a person unauthorized to drive for the duration of the suspension. Thus, an officer observing a person driving, whom the officer knows has a suspended license, has the specific and articulable facts necessary
However, the officer in that ease apparently did not provide such information regarding the defendant’s license suspension period and that court accordingly ruled that there was no reasonable suspicion that the defendant was driving without a license. Id. Thus, Laughrin illustrates that the reason a stop based solely on an officer’s knowledge of an individual’s prior violation of driving with a suspended license may be proper is because during a license suspension, an individual is prohibited from driving and if the officer, knowing the term of suspension, observes the individual driving, the officer would have reasonable suspicion that the individual is committing a violation. As held in Laughrin, without knowledge of the approximate term of suspension, an officer has no reasonable basis for suspecting a driver of a violation. Likewise, in the ease of a driver previously cited for driving without a license where no suspension or revocation is involved, the officer, upon reeneountering the driver, is not legally cognizant of any impediment to the driver’s operation of a vehicle.
The instant case is also distinguishable from cases like United States v. Sandridge,
B.
The majority characterizes as “demonstrably flawed” Petitioner’s argument that an
Moreover, that an “individual could have corrected ... former criminal behavior,” majority opinion at 361,
The majority relies on the proposition that “[a] deteimination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct,” majority opinion at 361,
The Arvizu court held that reasonable suspicion of criminal activity justifying the stop was present because numerous facts and circumstances were cited by the border agent that gave rise to his suspicion that defendant was engaged in illegal smuggling activity. Id. at 277,
Furthermore, the border patrol agent based his decision to stop the defendant inasmuch
Arvizu explained that “each of these factors alone is susceptible of innocent explanation” but, “[t]aken together, ... they sufficed to form a particularized and objective basis for [the agent’s] stopping the vehicle, making the stop reasonable within the meaning of the Fourth Amendment.” Id. at 277-78,
In contrast, here, the only factors cited by Officer Takamiya for the stop were past citations of Petitioner and Petitioner’s girlfriend. The multitude of factors in Arvizu that indicated the possibility of criminal activity then afoot was not present at the time of the subject stop in the instant case. Thus, Arvi-zu is not supportive of the majority’s position.
VII.
A.
As to the majority’s second argument, the majority engages in a lengthy discussion regarding the “freshness” or “staleness” of prior violations in relation to the stop in question. It deems Sandridge and Laughrin to be “ ‘bookends’ with respect to the period of time during which an officer may have reasonable suspicion that a driver is engaged in an ongoing offense such as (having without a license[,]” implying that information less than 22 days old is generally not stale while information older than twenty-two weeks old is likely to be stale. Majority opinion at 363,
The majority’s establishment of putative “bookends” for the time period during which an officer may possess “reasonable suspicion that a driver is engaged in an ongoing offense such as driving without a license[,]” id. at 363,
Presumably in the majority’s view, any subsequent stop made less than twenty-two days after a violation is cited enjoys presumptive reasonable suspicion, any stop made after a period longer than twenty-two weeks would be presumptively invalid, and anything in between is open for debate. This rule is, in and of itself, arbitrary, inasmuch as the “bookends” are derived from courts considering the specific facts of a particular case and not a range that would be presumptively applicable. See Laughrin,
B.
The majority argues that timeliness of pri- or violation information is of limited importance in the context of ongoing violations, majority opinion at 20, and that even if timeliness is an important factor in the reasonable suspicion inquiry in this case, Officer Takamiya’s one-week-old knowledge that Petitioner’s vehicle lacked valid insurance and two-week-old knowledge that Petitioner was unlicensed, “give rise to reasonable suspicion to execute the March 1, 2005 traffic stop,” id. at 363,
All of these cases cited by the majority, mth the exception of Carrs which is distinguishable and unpersuasive as discussed supra in footnote 7, dealt roith license suspensions, in contrast to Petitioner’s case where there was no suspension and, hence, no impediment to Petitioner’s immediate acquisition of a license and insurance. Moreover, the majority’s focus on the time elapsed between the two stops improperly elevates one factor above all others. Again, the majority itself asserts that, “[i]n analyzing whether reasonable suspicion supported a stop, this court considers the totality of the circumstances.” Id. at 357,
However, the majority focuses not on the attendant facts of the stop at issue but, rather, on whether the attendant facts justifying a previous stop have become “stale.” This approach abrogates the specific and articulable facts test. The gravamen of Officer Takamiya’s stop was obviously to cheek on whether Petitioner had obtained a license since Petitioner was last stopped. The determination of whether information based on a prior stop has or has not become so stale as to justify a subsequent, otherwise objectively suspieionless, stop truly places the questioned stop in the “unbridled discretion” of the officer and is a practice that has long been condemned. See Prouse,
VIII.
The majority’s third argument regarding traffic safety is, with all due respect, a makeweight
Thus this argument does not warrant disregarding the bases of the reasonable suspicion standard. As noted before, the rales applicable in a reasonable suspicion inquiry already reflect a compromise between or balancing of the interests of the state in preventing criminal conduct and the interests of individuals in remaining free from unreasonable searches and seizures. Overlooking the well-established tenets of the reasonable suspicion standard impermissibly tilts the balance between these interests.
IX.
As Petitioner argues, “the fruit of the poisonous tree doctrine prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.” State v. Fukusaku,
Based on the foregoing, I would reverse the ICA’s April 24, 2007 judgment issued pursuant to its April 13, 2007 SDO, and the January 4, 2006 judgments of the District Court of the First Circuit, Ewa Division.
. Article I, section 7 of the Hawai'i State Constitution states as follows:
The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.
Because in this context a violation of the state constitution which affords broader rights within its jurisdiction would control on whether a violation occurred under the federal constitution or not, a violation of the former would be dispositive. State v. Maganis,
. Hawai'i Revised Statutes (HRS) § 286-102 provides in relevant part:
(a) ... No person, except one exempted under section 286-105, one who holds an instruction permit under section 286-110, one who holds a provisional license under section 286-102.6, one who holds a commercial driver's license issued under section 286-239, or one who holds a commercial driver's license instruction permit issued under section 286-236, shall operate any category of motor vehicles listed in this section without first being appropriately examined and duly licensed as a qualified driver of that category of motor vehicles.
(b) A person operating the following categoiy or combination of categories of motor vehicles shall be examined as provided in section 286-108 and duly licensed by the examiner of drivers:
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(3) Passenger cars of any gross vehicle weight rating, buses designed to transport fifteen or fewer occupants, and trucks and vans having a gross vehicle weight rating of fifteen thousand pounds or less....
(Emphases added.)
.HRS § 431:100-104 provided in relevant part:
(a) Except as provided in section 431:10C-105, no person shall operate or use a motor vehicle upon any public street, road, or highway of this State at any time unless such motor vehicle is insured at all times under a motor vehicle insurance policy.
(b) Eveiy owner of a motor vehicle used or operated at any time upon any public street, road, or highway of this State shall obtain a motor vehicle insurance policy upon such vehicle which provides the coverage required by this article and shall maintain the motor vehicle insurance policy at all times for the entire motor vehicle registration period.
(Emphases added.)
. Brendlin must be compared with Rakas v. Illinois,
In contrast, the defendant in Brendlin "did not assert that his Fourth Amendment rights were violated by the search” of the vehicle in which he was a passenger, but instead "claimed only that the traffic stop was an unlawful seizure of his person." Id. at -,
Therefore, practically speaking, Rakas's rule precluding challenge by a passenger lacking property or possessory interests in a vehicle or in objects seized from the vehicle, to the introduction of the fruits of a search and seizure, does not apply if the stop was improper. The end result, in light of Brendlin, and notwithstanding Rakas, is that in such a case, a passenger may successfully suppress the introduction into evidence of items seized during a search of a vehicle not belonging to the passenger.
This end result is congruent with the automatic standing rule accorded defendants charged with possession crimes previously believed to be applicable in this jurisdiction. See State v. Tau'a,
. HRS § 286-116 (1993 & Supp.1997) requires that a person having a valid driver’s license and valid motor vehicle insurance shall keep such license in his or her possession at all times and a person having valid motor vehicle insurance shall keep such insurance identification card in his or her possession while operating the motor vehicle. However, no person charged with a violation of these requirements will be convicted if the person produces appropriate proof that the person was the holder of a license and insurance at the time of arrest. That section provides in relevant part:
(a) Every licensee shall have a valid driver's license in the licensee’s immediate possession at all times, and a valid motor vehicle or liability insurance identification card applicable to the motor vehicle operated ... when operating a motor vehicle, and shall display the same upon demand of a police officer. Every police officer or law enforcement officer when stopping a vehicle or inspecting a vehicle for any reason shall demand that the driver or owner display the driver's or owner's driver's license and insurance identification card. No person charged with violating this section shall be convicted if the person produces in court, or proves from the proper official or other records that the person was the holder of a driver's license or a motor vehicle or liability insurance identification card and policy ... theretofore issued to the person and valid at the time of the person’s arrest.
(Emphases added.) Petitioner was not cited under this section.
. Although the court admitted into evidence what appeared to be a self-authenticating document from the City and County of Honolulu's Division of Motor Vehicle, Licensing and Permits, indicating that Petitioner did not have a valid license issued to him at the time of the March 1, 2005 stop, Officer Takamiya did not testify he was aware that a valid license had not been issued to Petitioner at the time of either the Februaiy 15 or the March 1 stops. Thus, for all that is objectively in evidence, during both stops, Petitioner may have had a valid driver's license or a valid insurance policy for his vehicle although proof of such license and insurance were not in the vehicle at the time.
Of course, what is discovered subsequent to an illegal stop cannot validate the stop. If Officer Takamiya did not have a reasonable suspicion that criminal activity was afoot predicated on a "particularized and objective basis[,]” before the stop United States v. Arvizu,
. The only case that the majority cites which holds that an officer had reasonable suspicion to stop a defendant where the officer had issued a previous citation and where license suspension and revocation were not involved, is State v. Carrs,
Moreover, Cans is of limited persuasive value in light of the dearth of cases reaching similar decisions and in light of the number of other cases discussed infra in Section IV.A. which expressly state that knowledge of an individual's prior criminal history is an insufficient basis for an investigative stop.
. Sandridge also stated that "there are no facts in the record suggesting that [the officer] should have assumed that [the defendant's] ongoing offense [of driving without a license] had ceased between” the day that the license check was run and the day that the officer stopped the defendant.
. Arguably, a lag period may exist between a driver being issued a license and such information being reflected in the record system used by police officers, although computerized systems would seemingly allow an almost instantaneous update of information. In other words, there is a relatively remote possibility that a driver may have recently obtained a license and due to a potential lag in the update of the records system, the information of such license issuance may not appear in the system at the time that a police officer performs a records check.
However, this does not mean that the police officer's suspicion that a driver does not have a license is not reasonable inasmuch as a traffic record check would present a "specific and artic-ulable fact” giving rise to an objective basis for reasonable suspicion. "The reasonable suspicion standard does not require an officer to rule out every possible innocent excuse for the [fact] in question before stopping a vehicle for investigation.” State v. Washington,
. The majority challenges Petitioner’s argument as follows:
.... Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers that the driver is not merely without his or her license but is, in fact, unlicensed to drive in the jurisdiction. Upon encountering the same individual later the same evening, once again driving-si a time during which the license-issuing authority has not yet reopened-the officer would have more than reasonable suspicion to effect a second brief traffic stop of the driver to investigate whether he or she is driving without a license. Reasonable suspicion can, therefore, be established that the defendant has fixedly refused to cease prior criminal behavior, personally obsetved by the officer, absent other observed violations of the traffic or safety codes.
Even in light of a more protracted interval, however, during which the individual could have corrected the former criminal behavior, a police officer may nevertheless have reasonable suspicion that the person has, in fact, failed to amend his or her behavior.
Majority opinion at 361,