*1 HAWAII, STATE OF Plaintiff-Appellee, v. MASAO TSUKIYAMA, LYDELL Lydell aka Tsukiyama, Masao Defendant-Appellant.
NO. 5484 AUGUST RICHARDSON, C.J.,-LEVINSON, KOBAYASHI, MENOR, and OGATA JJ. OGATA, BY
OPINION THE COURT J. OF Tsukiyama, Lydell also known as Masao Tsukiyama, Lydell jury convicted of three Masao (2) (1) possession drug; posses- of harmful criminal offenses: drug; (3) by. a possession of a firearm sion narcotic certain court person convicted of crimes. Thereafter years ten imprisonment for for sentenced the defendant year apiece possession drug, possession of harmful one for persop possession firearms con- drug narcotic crimes, these to be served victed certain each of sentences concurrently. appeals alleges ground now of re- He grant in its refusal court erred the trial versal *2 forth For the reasons set the evidence. suppress to motion herein, convictions. of these we affirm each a.m., 29, police 1972, 1:00 December at about
On Kohler, parked three patrol, upon came Paul while on routine (north) Street side North School along the mauka of vehicles of Honolulu, mixture city of comprised an area The business establishments. miscellaneous residences vehicles, nu- saw officer, noticing parked three after these by parked of such standing western-most people merous be vehicles, and which will up open, its which had hood vehicle as vehicle Likewise the designated for convenience 1. 2, and designated as parked behind vehicle will be vehicle 3, which designated the last vehicle will be as vehicle parked recognized was a blue Kohler one Comet. Officer Johansen, a persons among group vehicle as Russell character,” person as term “police known to Kohler jail for the person Kohler defined as who had been circumstances, light crimes. of these commission other investigate the the con- Kohler felt that he should cause of police He central gregation around vehicle 1. informed leaving that he his car for such communications was for investigation and at the assistance. requested same time 1; got his west vehicle as he parked just Kohler Officer car 1, but he that approached out and reached vehicle before walking vehicle, who was towards he the defendant met a flash- officer. The defendant then asked Officer Kohler for light. 1 was Defendant informed Kohler that vehicle Officer vehicle, his got then went back his stalled. then flashlight and to the who turned over 1. returned to vehicle Officer Kohler followed the defendant 1. to vehicle time, began arrive police officers about that
At other scene, assistance Officer pursuant to the call first was either the or second Kaalele Kohler. Officer Albert 3, arrive, parked behind vehicle and he vehicle officer to he vehicle When saw Officer got and walked towards 1. out group vehi- among people around Kohler safe and well vehicle, just 1, to his back cle he started walk 3, before he reached vehicle he the person noticed who had been 3, seated on the driver’s seat of vehicle at the time 1, walked towards vehicle had disappeared. So he walked around vehicle the front of and towards the driver’s side of vehicle, person when noticed who had been lying seated was now on the front seat vehicle 3. Officer vehicle, Kaalele walk continued to towards his and after flashlight vehicle, getting his from his he returned to the passenger opened vehicle side of the door and asked the person lying something might on the front seat if wrong be with him. This Anthony later identified as Oh Young. Young Comet, After came Oh out from blue outside, door, he stood next to its passenger front Officer *3 was, then asked Young Oh car it whose and he Kaalele. by replied pointing group 1, the around people vehicle belongs and said it guys up to “one of the here.” then, defendant, the who had with been the group Just 1, people around vehicle walked over towards Officer Kaalele, at that conversing who time was with Young. Oh Officer Kaalele asked the defendant if he knew to whom “yes, vehicle 3 Defendant belonged. responded bicycle mine.” Officer Kaalele had in noticed a the back of 3, bicycle vehicle so asked the defendant whose was the car, to which defendant it belongs the answered that to one of his sons. Kaalele defendant if Officer then asked the he had some kind and said that of-identification defendant it was glove the compartment of his car. Kaalele then asked Officer ” you go get any protest the defendant and Without “would it? objection, around proceeded defendant then the front 3, side, Kaalele, vehicle driver’s Officer the followed and defendant the driver’s The defendant then opened door. vehicle, glove compartment, entered leaned towards the keys hand, opened glove and in his right with his two or his left compartment about three inches inserted Kaalele, compartment. hand into who stood glove Officer with flashlight glove on the driver’s side his focused on the of defendant’s compartment, watched the movements left Azevedo, hand. At had arrived that time Officer Dennis who his parked soon after Kaalele had vehicle behind Officer the same passenger side of 3, standing was on vehicle shining in same direction flashlight also with his vehicle then saw Kaalele glove compartment. Officer on the something, the officer hand left touch defendant’s Kaalele then be the a revolver. Officer recognized to butt of defendant, and after scuffle the vehicle for the dove into he was the officer and the subdued between gun glove in the Officer Azevedo recovered still arrested. 3, also of vehicle and he recovered from compartment containing glove secobarbitals receptacle compartment Likewise, this cigarettes. with three marihuana connection same search, recovered from the Newton Harbottle Officer lids of paper a brown sack which contained three vehicle marihuana. was filed pre-trial suppress motion to 1973, and the was heard below on motion
the court March day, hearing, the trial after the April on 1973. On the same search and held that the circumstances court ruled under and that was without merit. When proper, was the motion 21, 1973, May again began the defendant case trial, which orally suppress during renewed motion to again denied. At issue is whether conduct of officers any time before butt of re- Officer Kaalele observed the in vehicle 3 constituted “seizure” of the defendant volver *4 meaning within of the Federal the Fourth Amendment to I, Constitution and Article Section 5 of the Hawaii State Constitution.1 1 reads: The Fourth Amendment to the Federal Constitution houses, right and of in their The to be secure people persons, papers, violated, seizures, against effects, no not and unreasonable searches and shall be affirmation, issue, cause, or Warrants shall but Oath supported by upon probable describing things searched, to or to and be and the particularly place persons he seized. reads: 5 the Hawaii State Constitution Article 1. Section houses, right their and persons, of the to be secure people papers The seizures, searches, against shall and invasions privacy effects unreasonable cause, violated; supported
not and no but upon probable be warrants shall issue describing affirmation, and to be searched oath or place particularly sought things to be inter- or to or the communications be seized persons cepted.
12
Terry Ohio, (1968), 1U.S. and its progeny make it clear that every not street encounter between public constitutes a “seizure.”
Obviously, not all personal intercourse between po- licemen and citizens involves “seizures” persons. Only officer, by when the physical means of force or show authority way has in some restrained liberty of a may citizen we that a conclude “seizure” has occurred. Terry, supra fn. 16.
In order to if liberty determine the defendant’s was re- was, strained and therefore, seized, we must evaluate the totality of the circumstances and decide whether or not reasonably prudent person would believe he was go. free to The officer involved testified that he did not prevent intend to departure defendant’s However, from the scene. it is appropriate apply objective standard, rather than a subjective one. It is well settled that when “seizure” of a made, an objective standard must be applied to determine if that “seizure” Likewise, reasonable.2 we should an objective use standard to determine whether a “seizure” has place. Delmondo, taken State v. 54 Haw. Cf. P.2d
Prior to the time began Officer addressing Kaalele ques- tions to the voluntarily he was present at the scene of the encounter aid acquaintances in repairing or moving (vehicle 1). a stalled automobile When Officer Kaalele inquired the defendant about ownership (vehicle 3) bicycle blue Comet automobile and the observed vehicle, the officer the rear of the he did so in a conversational manner. He then asked the defendant if he had Tsukiyama, some identification. When Mr. the defen- dant, replied that it glove compartment, Officer merely go Kaalele asked him if he get would it. He did not get order the defendant it or demand that it. get meaningful only The scheme of the Fourth Amendment becomes when is point charged enforcing assured that at some the conduct of those with the laws can subjected detached, scrutiny judge be to the more neutral must who evaluate the *5 particular particular light reasonableness of a in search or seizure of the circums Terry Ohio, supra tances. v. at 21. any leaving, way did in restrain the defendant from not anywhere going pleased, or from as he was no there companions. his Officer indication that he about to leave overbearing to defendant were not questions Kaalele’s or nature, harassing in did not a show make authority, weapon. only draw a a make threats or He wore required department. The mere police uniform on a public of five to seven uniformed officers street presence morning at 1:00 in is in itself a in an urban area o ’clock not a authority eight or when civilians show of form coercion testimony According officers, present. are also to blocked; acquain- street was not the defendant and his tances have driven from the scene of the encounter. could voluntarily glove proceeded open to When the beam his flash- compartment, Officer Kaalele trained safety precaution. light on the defendant’s left hand as a officer, however, did his not have revolver drawn. did officers and Kaalele and the other
Officers Kohler main he was taken to the the defendant before know to the de- questions addressed headquarters. The informal only in this situation fendant Kaalele factual Officer level of to the not rise minimal and did privacy on intrusion his a “seizure” Amendment. meaning within the of the.Fourth least, nothing to
While the surface at there was indi- on engaged cate defendant and his were crimi- comrades activity engage activity, nal about to such there no merely objection policeman inquire constitutional to when individual on in a manner proper streets compulsion are addressed is under no questions to whom the by Mr. propounded This view was cooperate. to White Justice Terry, concurring opinion supra 34: his nothing prevents in the Constitution There is anyone addressing on the questions from policeman circumstances, person ap- special streets. Absent may frisked but refuse may not detained or proached be way. go cooperate Supreme reasoning Court line of Pursuant 441, 446-47, 303 A.2d 62 N. Jersey Sheffield, New in State J. (1973), appellate division stated: reversing *6 Appellate The Division went of wide the mark when a right police limited the the question officer to a person to a involving “highly situation suspicious A activities.” police charged duty with prevention of crime and protection safety detection public must diversity with a deal rich of street encounters with citi- situation, zens. In a given though even a citizen’s be- havior does not reach the “highly suspicious level of activities,” experience may officer’s indicate that investigation some is in order. Depending on the circum- stances, may street interrogation be most reasonable and proper. Williams, v. 143, Adams 1921, 407 U.S. 92 S. Ct. 32 L. Ed. 2d 616-617 say court, This is not a recognizing while prevention detection, need for effective crime should vigilant not be an strike down the street abuse of by However, a questioning police. citizen there no indication that the in attempting conduct the officer question overbearing defendant was harassing . . nature. . dissent assumption
The herein bottomed on the field a interrogation by police usually involves “detention” person and has Fourth Amendment implications. dissent, therefore, limit would such interrogation to a situation where the officer has suspicion activity.” “reasonable of criminal This would practically an an require grounds officer to have arrest street, interrogate a test before could Terry. specifically rejected by the Supreme Our Court more, interrogation, conclusion is mere field without involve “detention” in the officer does not deny long constitutional sense so as the officer does Nor, if dissent so right the individual to move. intends, could we view that whenever a accept the officer, activity, suspicion ap- without of criminal some proaches him a is a question, individual to ask there wrong require which would the suppres- constitutional in re- sion of contraband which the individual discards sponse approach to the the officer. 935, 939, Monson, 105 Cal. App. 3d 28 Cal. People (1972), the court Reporter Pacific
Rptr. citation] [no police: “field” interviews recognized the need for *7 with to seek interviews for officers It not unreasonable they per- . . suspects . Otherwise cannot or witnesses. effectively preventing crime and form their functions reasonably suspected of crime. apprehending those 638, 642 In State v. Baxter, 416, 421, 2d 413 P.2d 68 Wash. (1966), Washington Supreme stated: the State Court nothing questioning in an officer’s
There is unreasonable Simon, night. at People are out late 45 Cal. persons who (1955). P.2d Had he continued to 2d 290 531 [Baxter] walk, standing merely refused had he remained to or talk, police may probable well have lacked cause to v. United States, 259 F.2d (D.C. 180 arrest him. See Green 1958), denied, 917, 3 L.Ed. 2d 79 cert. 359 U.S. Cir. Sup. Ct. In Law Institute’s addition American Official Draft Pre-Arraignment A Model Procedure
No. Code 110., police requests cooperation. for Article provides for (1) 110.1, Authority Request Coopera- to Section Subsection tion, part: reads in may, to subject provisions
A law enforcement law, any request person or other to furnish of this Code cooperate investigation in the information or otherwise or may request prevention of crime. The officer making pur- .... questions requests to to respond a section, per- that suant this no officer shall indicate to legally information obliged son to furnish or otherwise legal obligation Compliance no with if exists. cooperate cooperation hereunder request other information for solely involuntary or regarded shall be coerced on by known to request that was made one be ground such laiv [Emphasis added.] officer.”3 enforcement cooperation, this where even explicit . .. The to seek authorization to citizen, though many may and even involve inconvenience or embarassment for — they in some authority believe will because citizens defer to this —way should, they recognition the moral and vague in the Code that is a clear that by may cooperate general pressures relied on be are sound instinctive only cooperation imposes requests police. when This restrictions Section provision
While this has not specifically been adopted legislature, our the accompanying comment explicitly states grant authority section does not new law “[t]his Code, enforcement officials." A.L.I. Model supra 4. The dissent judge contends the trial court made finding of fact that However, defendant was “detained.” fact, statement made trial judge finding was not a just casual, but passing immediately remark made after the during renewed motion to trial. suppress than judge No sooner the trial had that the defendant stated detained, judge then qualified his statement illegal was not an detention. the trial judge While char- acterized the encounter between the officer and the defen- detention, stated, dant as a further, that the detention illegal, that, herein, was not think we based upon the record *8 trial judge the word being used the as “detention” synony- ’’ course, with the word up- mous Of “intrusion. the intrusion on the privacy, any, defendant’s if was minimal that it so event, perceptible, appreciable. neither nor In the trial judge’s carefully considered denial of defense mo- counsel’s suppress weight tion to greater evidence must be accorded than a casual comment. with and in implicit Consistent the a judge’s finding ruling on motion that reasona- bly prudent person in the position defendant’s would not any way liberty. believe in that he was restrained his evidence is than to support more sufficient this conclusion. find, does, We do not dissent that the record supports finding deliberately approached that de- Officer Kaalele question fendant him. showing We view the record as vehicle, as the approached defendant walked his towards right Officer Kaalele who was on the sidewalk close to the front fender of defendant’s vehicle. Officer Kaalele was then conversing with Young. nothing Oh There in record anything by show that the defendant was do coerced to Of- Furthermore, indicated, supra, every ficer Kaalele. as we a police meets on the who street has right cooperate police fundamental to refuse to with such — menacing, rights misleading, particular such as with conduct is or conflicts Code, supra privilege against at 100. self-incrimination.A.L.I. Model officer. The have simply defendant here could refused to voluntarily cooperate officer, with the and that would have ended the encounter. Many expound of the cases that standards which must ” constitutionally
be met for a
“stop”
“seizure,
reasonable
or
Terry,4
beginning with
present
need not be considered in the
case,
“stop”
since no
place.
“seizure” took
The case now
distinguished
before us can be
on its facts from the numerous
cases in
Terry
which the
standards have
applied.
been
“Terry
cases,5
each
progeny”
upon
relied
state as well as
was an
there
element of
command, authority,
force, threat, coercion, physical stop
ping
present.
or restraint
lacking
This crucial element was
in
the instant case until
his
put
gun.
hand on the
after
At
point probable
cause for arrest arose. State v. Waki
nekona,
Haw.
was,
“We
hold
that where
officer observes
reasonably
light
experience that
criminal
which leads him
to conclude
dealing may
activity may
persons
armed
with whom he is
be
be afoot and
presently dangerous,
investigating
this behavior
where
the course of
policeman
inquiries, and
reasonable
where
identifies himself as
makes
nothing
stages
dispel his reasonable fear
initial
serves to
of the encounter
protection
safety,
himself and others
for his own or
he is
for the
others’
entitled
carefully
clothing of such
area to conduct a
limited search of the outer
attempt
weapons
might
persons
him.
be used to assault
in an
to discover
*9
Amendment,
any
Such a search is
reasonable search under the Fourth
may
against
weapons
properly
from
seized
be introduced in evidence
they
whom
were taken.
5 See,
Delmondo,
Onishi,
593,
supra;
v.
v.
Haw.
circumstances could have rise to belief that “criminal activity may justify have been a “stop” afoot”6 thus ” police “seizure. We find that the conduct of the officers was constitutionally reasonable.
Affirmed. Hobler, (Donald David S. K. Deputy Public Defender Tsukiyama, Defender, counsel), Public for defendant- appellant. Libman,
Michael A. E. Weight, Charlotte Attorneys Attorney, Prosecuting (Barry Chung, Prosecuting counsel), plaintiff-appellee. LEVINSON,
DISSENTING OPINION OF J.
I dissent. jury defendant was convicted a circuit court unlawfully possessing revolver, marijuana and secobarbi- tal, a barbiturate. appeal contends the court suppressing items, erred these which he claims were seized in violation of his state and federal rights. agree, constitutional I and therefore would reverse the judgment and sentence of the trial court.
I state approximately version of the facts. At morning one o’clock on the of December officer Honolulu Department patrol Paul Kohler Police was on driving in an his automobile Ewa direction on North School Street the Nuuanu section of Honolulu. mauka side On the street, closed, near a pool just of that hall that had row, parked Kohler observed three cars in a the lead car men, which had its hood elevated. Ten including or twelve gathered were around this automobile. Officer — recognized Kohler “police one of the men as a character” an individual jail he defined as someone has who “been crimes”; before for other he did not know the defendant or present. of the other men doing wanted what men were there Because he to see his car morning,” parked Kohler “at that time Terry, supra at 30. *10 a request transmitted for assistance on his radio. He planned an to conduct which he as a pro- described interrogate suspicious cedure looking persons “to at odd day night hours of the or or areas an residence business uncommonly large of people.” number While perceived nothing suspicious otherwise about the defendant’s be- haviour, officer Kohler felt that an appropriate “I.C.” was recognized a “police because individual as character” ” and the group. defendant “were the same assistance, After his call for officer Kohler left au- began walking tomobile group towards the of men. He approached then who asked him for the a flashlight use of engine to assist work on the appar- of the ently lead stalled car. Officer accordingly Kohler lent a flashlight, defendant the men recognizing by that time were only they concerned with car trouble and that were conducting themselves in a illegal manner neither nor sus- picious. not, however, Kohler
Officer did retract his call assis- while, tance. short entire “task force” — arrived at the including scene ten least officers and two — newly “taskforce” vehicles. One ofthe arrived policemen — officer Albert lying Kaalele observed an on individual front cars, seat of one original parked of the three a blue bicycle Comet. also saw a He back seat of car. Comet, Officer Kaalele man get told the out asked him to belonged. whom the The car man indicated the defendant the owner. approached Officer Kaalele then defendant and inquired whether the defendant was the owner responded affirmatively, Comet. When the defendant bicycle officer Kaalele asked him to whom the the back belonged. seat of the Comet belonged defendant stated it to one of his sons.
By joined this time officer Dennis had officer Azevedo had Neither officer ever seen the Kaalele. time, suspected and neither officer
before this him of activity. Nonetheless, according criminal Azevedo, the defendant “was [by asked Kaalele] time, which, furnish at this was in identification he stated it *11 glove his compartment his vehicle.” tes- Officer Kaalele I.D., tified “I asked him for if some kind of he had on him.” When the defendant indicated his identification was located car, glove compartment according the of his to officer ” Kaalele, you “I told him: go get ‘Would and it?’ closely by Azevedo, Followed officers Kaalele and defendant “proceeded” then “walked” or back to his auto- mobile. The officers stationed themselves on either side of automobile, doors, at flashlights the front and shone their glove compartment began open on the when the to it. As the defendant was reaching inside the illuminated compartment glimpsed the officers the butt end aof revolver. immediately grabbed Officer Kaalele wrestled ground, him to the then and arrested him. The handcuffed glove revolver was an compartment, retrieved from the and and ensuing marijuana search of the car revealed the barbi- upon turates drug charges against the defendant were based. trial
The court denied the pre-trial defendant’s motion to suppress making findings without of fact for the record. How- ever, trial, the defendant renewed his suppress motion to at expressly found, which time the trial court “I don’t believe [Tsukiyama] was being under arrest but was he detained.” argument “illegally” To the defendant’s that had he been ’’ detained, trial responded, disagree. court “I The record clear, therefore, trial court found as a matter of fact subject the defendant was investigative detention police. equally It is trial clear court based its denial suppress of motion to on a conclusion that facts justified the detention. becomes question for this court hence threshold finding that the defendant trial court’s factual
whether forcibly required furnish identifica- stopped had been reaching glove compartment prior his act of into the tion in the record. substantial evidence premised his car Cf. Price, per- I am Haw. P.2d 376 State v. finding fully court’s supports the evidence suaded evoked the for assistance regard. Officer Kohler’s call task vehicles of an entire force of emergency response personnel. by police, Surrounded the defendant was identification; “asked to furnish” was he “told . . . would you go get it” when he stated identification was elsewhere; closely was accompanied two armed offi- car; on his back to his car, cers “walk” once inside the egress by blocked from standing at each of the front *12 Certainly doors. testimony the defendant’s indicates he sub- jectively/eZi deprived ignore of his freedom to the demand for identification and leave. Although officer Kaalele testified at trial the defendant will, could have left at no one bothered to communicate this to the at the time Indeed, the Kohler, incident. who called for assis- tance for purpose conducting the an all “I.C.” of men, including the testified that in the ”I.C.” procedure an individual is really” free to leave until he “[n]ot complies with an request officer’s for identification. Terry Ohio,
In v. 1, 392 (1968), U.S. 19 n.16 the United States Supreme suggested Court test, a particularly appro case, this priate to the-facts of for determining when a “sei has within meaning zure” occurred of the fourth amend ment. occurs, Seizure stated, officer, “when means physical authority, force or show of way has in some liberty restrained the aof citizen.” In present case, emergency response aof task police force of vehicles and personnel scene, to the imperative manner which the identification, police “asked” the defendant produce police two-on-one escort of car, the defendant to his all com produce bined to a authority” by “show of under the terms which the defendant’s freedom to was leave conditioned on his compliance with their demands for identification. v. Kaluna, Cf. Haw. 361, 371 N.7, 520 P.2d 55 State 51, event, (1974). 60 n.7 say I am unable to trial clearly finding in its express court erroneous to this effect. hand,
I am equally persuaded, that the on the other justified court in finding erred the defendant’s detention say the facts in having the circumstances. I so considered light prosecution. Indisputably most favorable to the 22 a meaning
defendant’s detention was “seizure” within the the federal state constitutions. U.S. Const. amends. IV XIV; I, 5; Williams, § & art. Adams v. 407 Hawaii Const. Joao, (1972); 601, U.S. 143 State v. 55 Haw. P.2d 525 580 (1974). subject And seizure of the to the constitu reasonableness, tional rule of requires, the case of investigative cause, probable detention less than detaining police “be point specific able which, together articulable facts taken with rational infer facts, reasonably from ences those warrant that intrusion.” Ohio, Id. at quoting Terry supra v. at Yet the record 21. Kohler, explicit that officers Kaalele and Azevedo found suspicious than nothing defendant’s other conduct “association” with a late “police character” hour. Mere criminals, however, justify association with known does York, stop. (1968). forcible Sibron v. New U.S. Nor does presence hour, on the a reputedly street at late even of dangerous State v. Joao, Onishi, individual. supra; State Haw. 499 P.2d Indeed, case *13 avowedly legitimate and unqualifiedly recognized the nature — of the defendant’s activity car. This repair aof stalled alone is fatal police perceived to the contention that specific reasonably suggested articulable facts which engaged activity. them that the defendant criminal See Court, v. Superior 423, 427, 462 12, 14, Irwin 3d P.2d Cal. Rptr. (1969) (“Where Cal. the events are as consis activity activity, tent with innocent with criminal deten unlawful”). tion based those events is Since record legal no reveals other facts buttress the trial court’s con constitutionally clusion that the defendant’s detention was permissible, suppressing I must conclude erred in not seized as a that evidence result of detention. country, least, always thought
I have accosting an indi- constitutionally from precluded are identifi- demanding produce vidual on the street and reasonable they unless hold papers, cation articulable illegal activity. suspicion the individual involved light the facts prosecution, most favorable to the Viewed defendant was no doubt that present case leave I unjustified. seizure was and that his “seized” reverse. would therefore HAWAII, Plaintiff-Appellee,
STATE OF v. NOEL MICKLE, Defendant-Appellant
NO. 5609 30, 1974 AUGUST RICHARDSON, C.J., LEVINSON, KOBAYASHI, MENOR, AND
OGATA JJ.