SEARCHES,
SEIZURES AND INVASION OF PRIVACY
Section 7. 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. [Am Const Con 1968
and election Nov 5, 1968; ren and am Const Con 1978 and election
Nov 7, 1978]
Law Journals and Reviews
Suppression of Evidence Without the Aid of the Fourth, Fifth
and Sixth Amendments. 8 HBJ 109.
State v. Sherlock: Police Use of a Controlled Purchase of
Contraband to Corroborate an Informant's Tip. 12 UH L. Rev. 237.
State v. Rothman: Expanding the Individual's Right to
Privacy Under the Hawaii Constitution. 13 UH L. Rev. 619.
Employee Rights Under Judicial Scrutiny: Prevalent Policy
Discourse and the Hawai‘i Supreme Court. 14 UH L. Rev. 189.
State v. Quino: The Hawai‘i Supreme Court Pulls Out All the
"Stops". 15 UH L. Rev. 289.
Criminal Procedure Rights Under the Hawaii Constitution Since
1992. 18 UH L. Rev. 683.
Wyoming v. Houghton: The Bright Line Search Includes Passengers'
Belongings. 22 UH L. Rev. 645.
Don't Smile, Your Image Has Just Been Recorded on a
Camera-Phone: The Need For Privacy in the Public Sphere. 27 UH L. Rev. 377.
Drunk, Driving, and Untouchable: The Implications of State
v. Heapy on Reasonable Suspicion in Hawai‘i. 31 UH L. Rev. 607 (2009).
State v. Spillner: An Investigatory Traffic Stop Based on
Unreasonable Suspicion. 31 UH L. Rev. 631 (2009).
The Privacy Rights of Public School Students. 32 UH L. Rev.
305 (2010).
Hawai‘i's Right to Privacy. 33 UH L. Rev. 669 (2011).
Chief Justice Moon's Criminal Past. 33 UH L. Rev. 755
(2011).
Homeless Property Rights: An Analysis of Homelessness,
Honolulu's "Sidewalk Law," and Whether Real Property is a Condition
Precedent to the Full Enjoyment of Rights under the U.S. Constitution. 35 UH
L. Rev. 197 (2013).
Case Notes
See also notes to U.S. Const. Amends. 1, 4.
Generally.
Section incorporates the Fourth Amendment of the federal Constitution
and is intended to give the State the benefit of federal decisions construing
the language. 45 H. 295, 309, 367 P.2d 499.
State supreme court may extend greater protection than is
extended by federal decisions, if deemed appropriate. 50 H. 138, 433 P.2d 593.
Investigative encounter "consensual" only if, prior
to start of questioning, person informed of right to decline participation and
that person could leave at any time, and person thereafter voluntarily
participates. 75 H. 558, 867 P.2d 903.
No violation of defendant's due process right to a fair trial
by prosecution's refusal to reveal exact dates of confidential informant's
observations as exact dates were not necessary in order for defendant to
challenge district court's findings of probable cause. 88 H. 396, 967 P.2d
228.
Investigative stop lawful where officer articulated specific
facts, including defendant's profuse perspiring and rapidly approaching officer
with hands moving in pocket, to establish officer's objectively reasonable
belief that "criminal activity was afoot"; subsequent pat down search
by officer which was limited to defendant's outer clothing was lawful where it
was objectively reasonable for officer to believe that defendant was armed with
a knife and presently dangerous. 93 H. 502 (App.), 6 P.3d 374.
Privacy.
Arrest of defendants sunbathing nude on public beach did not
violate their right of privacy. 52 H. 226, 475 P.2d 684.
Where government secret agent is invited to private home to
purchase marijuana and later goes there and makes purchase, agent's activities
do not constitute unreasonable invasion of privacy. 54 H. 513, 510 P.2d 1066.
This provision does not elevate right of privacy to
equivalent of First Amendment right. 56 H. 271, 535 P.2d 1394.
Helicopter observation of open marijuana patch was not
"an invasion of privacy". 58 H. 412, 570 P.2d 1323.
Words "invasion of privacy" were designed to
protect against extensive governmental use of electronic surveillance
techniques and undue governmental intrusion into areas of a person's life
necessary to insure individuality and human dignity. 58 H. 412, 570 P.2d 1323.
Use by police of ruse to effect voluntary opening of door and
subsequent entry without use of force for purpose of executing lawful arrest
warrant reasonable under this section. 83 H. 13, 924 P.2d 181.
Regardless of the number of times that the police tested
defendant's blood sample for its DNA, no violation of defendant's
constitutional right to privacy occurred because the analyses did not exceed
the objective for which the original warrant was sought--DNA testing for the
purpose of identification. 103 H. 38, 79 P.3d 131.
Under this section, a guest of a home dweller is entitled to
a right of privacy while in his or her host's home; defendant thus had a
reasonable expectation of privacy in defendant's host's garage washroom; police
were not justified, under either an "open view" or a "plain
view" exception to the warrant requirement, in searching the area behind
the washing machine. 104 H. 109, 85 P.3d 634.
Where police forcibly entered petitioner's home in pursuit of
petitioner's son without a warrant and in the absence of any exigent
circumstances, there was no conceivable basis in the law to uphold the entry as
valid; thus, trial court's conclusion to the contrary reversed. 121 H. 74, 214
P.3d 613 (2009).
Search and seizure.
Plaintiffs challenging city and county of Honolulu's practice
of charging nonresidents a $3 fee to enter bay designated a marine life
conservation district and nature preserve were not "seized" in violation
of the Fourth Amendment to the U.S. Constitution or this section; stopping to
pay $3 entrance fee at turnstile did not constitute an impermissible seizure. 215
F. Supp. 2d 1098.
Count alleging violations of the state constitution failed to
state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former
state prisoner and other allegedly similarly-situated plaintiffs primarily
seeking damages for "over detention". 678 F. Supp. 2d 1061 (2010).
Use of flashlight by police officer in scanning interior of
automobile lawfully stopped for traffic offense is not per se unreasonable
search and seizure. 50 H. 461, 443 P.2d 149.
Scope of pre-incarceration search. 55 H. 361, 520 P.2d 51.
Scope of search incident to lawful arrest; can be no broader
than necessary; in construing Hawaii constitution, need not follow U.S. Supreme
Court (U.S. v. Robinson, 94 S. Ct. 467 and Gustafson v. Florida, 94 S. Ct.
488). 55 H. 361, 520 P.2d 51.
Warrantless search and seizure of property in area open to
public not unreasonable; in area not open to public unreasonable absent exigent
circumstances. 60 H. 197, 587 P.2d 1224.
Elements of legitimate expectation of privacy. 61 H. 117,
596 P.2d 773.
Pre-incarceration search is justified. 61 H. 291, 602 P.2d
933.
Stop and frisk, justified. 63 H. 553, 632 P.2d 1064.
Warrantless search. Exigent circumstances lacking. 63 H.
553, 632 P.2d 1064.
Procedural requirements for seizure of materials in obscenity
prosecutions. 63 H. 596, 634 P.2d 80.
Standard for suppression of evidence where seizure violated
freedom of speech or expression. 63 H. 596, 634 P.2d 80.
City policy requiring inspection prior to entering concert,
of all containers or clothing capable of concealing bottles or cans held
unreasonable. 64 H. 17, 635 P.2d 946.
Illegal arrest or seizure of evidence, without more, does not
bar prosecution. Exclusion of tainted evidence is appropriate remedy; purchase
of allegedly obscene material from "willing sellers" by private
citizen under police direction prior to arrest was actually "preconceived
seizure" designed to evade warrant procedures; warrantless arrest for
promoting pornography and seizure of material cannot be premised on ad hoc
determination by police officer that material was obscene. 64 H. 109, 637 P.2d
1095.
Evidence inadequate to support probable cause for issuance of
warrant. 64 H. 399, 641 P.2d 1341.
No reasonable expectation of privacy in conversation recorded
by participant. 64 H. 659, 649 P.2d 346; 67 H. 197, 682 P.2d 79; 67 H. 307,
686 P.2d 816.
No reasonable expectation of privacy shown. 65 H. 22, 649
P.2d 363; 65 H. 159, 649 P.2d 737.
In order to conduct the more intrusive body searches in
nonemergency, noncontact visit situations, prison officials must have reasonable
basis to conclude that contraband is being concealed by inmates on their
person. 66 H. 21, 656 P.2d 1330.
Based on record, defendant did not abandon bag and therefore
warrantless search was unconstitutional. 66 H. 543, 669 P.2d 152.
Any co-inhabitant of commonly held property has right to
consent to search of property; no expectation of privacy in property abandoned;
abandonment primarily a question of intent. 67 H. 644, 701 P.2d 171.
Reasonable expectation of privacy in trash bags. 67 H. 658,
701 P.2d 1274.
Warrantless seizure of album for ten days to install beeper
was unreasonable. 68 H. 213, 708 P.2d 820.
Use of binoculars to observe activities in open view in
automobile not unreasonable; warrantless search of handbag in automobile was
unreasonable. 68 H. 221, 708 P.2d 825.
Under the facts, warrantless search held not justified by
"exigent circumstances" and not "incident to arrest". 68
H. 253, 710 P.2d 1197.
Police must have reasonable basis to believe crime committed
to order driver out of car after traffic stop. 68 H. 286, 711 P.2d 1291.
Reasonable expectation of privacy in closed public toilet
stall; no probable cause to search stall. 68 H. 404, 716 P.2d 493.
Warrantless search of defendant beyond protective search for
weapons was unreasonable, where there was no evidence to indicate defendant had
contraband or instrumentalities of the crime. 68 H. 509, 720 P.2d 1012.
Warrantless seizure for thirty minutes was not unreasonable
or avoidable where police were informed of criminal activity ten minutes prior
to the seizure. 69 H. 132, 736 P.2d 438.
Airport searches, discussed. 69 H. 589, 752 P.2d 102.
Search warrant was valid although informant had no history of
reliability because other corroborated information indicated informant was
reliable. 70 H. 271, 768 P.2d 1290.
Warrant was considered a general warrant. 70 H. 546, 779
P.2d 1.
Not violated by police drug testing program. 71 H. 568, 799
P.2d 953.
Warrant to search multiple occupancy dwelling was reasonable.
71 H. 638, 802 P.2d 478.
Affidavit which contained misstated and omitted information
was insufficient to show probable cause to justify a search warrant. 72 H.
141, 808 P.2d 848.
Warrantless search of contents of wallet after defendant surrendered
it for inventory was unreasonable. 72 H. 290, 814 P.2d 914.
Constitutional right was not voluntarily waived by
defendant's consent to search car where waiver was predicated on prior illegal
search and State failed to meet burden of showing that taint of illegal search
had been dissipated or that there was an independent source inducing defendant
to waive right. 72 H. 505, 824 P.2d 833.
Although no force was used, officers' show of authority and
questioning constituted seizure under Hawaii constitution. 74 H. 161, 840 P.2d
358.
District court's findings of fact, conclusions of law, and
suppression orders affirmed, where, inter alia, defendants had actual,
subjective expectations of privacy that society would recognize as objectively
reasonable that they would not be objects of covert video surveillance in
employee break room, and recorded observations of activities in the break room
were not obtained by third party consent. 75 H. 124, 856 P.2d 1265.
Seizure occurs when police approach a person for the express
or implied purpose of investigating that person for possible criminal
violations and begins to ask for information. 75 H. 558, 867 P.2d 903.
Children in school have legitimate expectations of privacy
that are protected by this section and the Fourth Amendment to the U.S.
Constitution. 77 H. 435, 887 P.2d 645.
High school principal's search of student's purse was
lawfully conducted. 77 H. 435, 887 P.2d 645.
Investigative stop can be justified based on objectively
reasonable suspicion of any offense, provided that the offense for which
reasonable suspicion exists is related to offense articulated by officer
involved. 78 H. 86, 890 P.2d 673.
Where handgun on floor of defendant's truck under corner of
driver's seat was observed in plain view, presence of exigent circumstances was
not required to justify a warrantless seizure. 78 H. 308, 893 P.2d 159.
Defendants were induced to make inculpatory statements and to
consent to search of their hotel room in violation of article I, §§7 and [10]
of Hawai‘i constitution. 78 H. 433, 896 P.2d 889.
In order for a consent to search to be valid under this
section, the individual consenting must actually possess the authority to do
so; detective's search of defendants' house violated this section. 78 H. 433,
896 P.2d 889.
Clear plastic packets not "closed" containers as
contents were within plain view of officer conducting search under warrant;
defendant thus could not claim any reasonable expectation of privacy in the
packets' contents. 80 H. 382, 910 P.2d 695.
Obtaining warrant as precondition to testing suspected
cocaine in clear plastic bags unnecessary where defendant could not have
reasonable expectation of privacy in clear plastic bags. 80 H. 382, 910 P.2d
695.
Valid search incident to lawful arrest where there was
probable cause to make an arrest prior to and independent of search of
defendant's pants, search was limited to finding narcotics bindles, and arrest
was made immediately after search. 80 H. 419, 910 P.2d 732.
Determination of probable cause for issuance of search
warrant warrants de novo review on appeal. 81 H. 113, 913 P.2d 39.
Upon de novo review, based on facts set forth in officer's
affidavit, probable cause existed to issue search warrant. 81 H. 113, 913 P.2d
39.
Defendant lacked standing to challenge seizure of search
warrant evidence where evidence seizure did not violate defendant's personal
rights; defendant was not owner of any of items seized and did not allege any
reasonable expectation of privacy in items. 82 H. 474, 923 P.2d 891.
No "seizure" where private individual, acting on
own initiative, secured videotape and voluntarily transferred possession to
police. 82 H. 474, 923 P.2d 891.
Drug evidence admissible and wrongly suppressed where police
intrusion into hotel room pursuant to valid arrest warrant was justified and
evidence seizure was permissible under plain view doctrine. 83 H. 13, 924 P.2d
181.
"Totality of the circumstances test" correct test
to determine whether private individual's search and seizure of evidentiary
items was as a government agent, and subjective motivation of individual
irrelevant to this determination. 83 H. 124, 925 P.2d 294.
Circuit court erred in granting defendants' motion to
suppress evidence where none of the three rationales for exclusionary
rule--judicial integrity, individual privacy, and deterrence--supported
suppression of evidence in case. 83 H. 187, 925 P.2d 357.
Provisions of chapter 803, part IV and this section not
relevant to question of legality of electronic eavesdropping activities
conducted in California. 83 H. 187, 925 P.2d 357.
Warrantless seizure justified where witness' identification
of defendant as person who terrorized witness with gun gave officers probable
cause to believe defendant committed a crime and officer's observation of
defendant sleeping with gun in immediate reach presented sufficient exigent
circumstances for officer to board boat and seize gun. 83 H. 229, 925 P.2d
797.
Based on totality of circumstances, officer placed defendant
in inherently coercive position by asking "pretexual" questions
specifically designed to elicit responses that would either vindicate or
implicate defendant; consent to "pat down" was thus not
"voluntary and uncoerced". 83 H. 250, 925 P.2d 818.
Officer lacked specific and articulable facts sufficient to
warrant a person of reasonable caution in believing that defendant was engaged
in criminal activity; officer was thus unjustified in initiating investigative
"encounter" at airport with defendant. 83 H. 250, 925 P.2d 818.
Where officer's questions were designed to investigate
defendant for drug possession and defendant was expressly made aware of that
from the outset, defendant had been effectively seized by the time officer
asked "to take a look" at defendant's airline ticket and driver's
license. 83 H. 250, 925 P.2d 818.
Where nothing in objective facts available to police at time
they obtained search warrant for house suggested defendant's bedroom was
separate residential unit completely secured against access by other dwelling
occupants, search warrant not overbroad and search of bedroom reasonable. 84
H. 462, 935 P.2d 1007.
Where no exigent circumstances existed, forced entry by
police two seconds after knock and announcement was insufficient to give
occupants reasonable opportunity to respond. 85 H. 282, 943 P.2d 908.
Defendant not victim of unlawful seizure where, under
totality of circumstances, reasonable person would have felt free to terminate
encounter by refusing to accompany police and return into home. 86 H. 195, 948
P.2d 1036.
Where defendant voluntarily offered to accompany police to
station and walked to and entered van voluntarily, even if there was a
"seizure", seizure was with defendant's consent. 86 H. 195, 948 P.2d
1036.
Police may not prolong the detention of individuals subjected
to brief, temporary investigative stops, once such stops have failed to
substantiate the reasonable suspicion that initially justified them, solely for
the purpose of performing a check for outstanding warrants. 91 H. 80, 979 P.2d
1106.
Although lawfully "seized" within the meaning of
this section, defendant was not "in custody" at the time defendant
responded to officer's question regarding defendant's age; thus officer was not
required to give Miranda warnings prior to asking the question and trial court
improperly suppressed defendant's answer. 94 H. 207, 10 P.3d 728.
When an officer lawfully "seizes" a person in order
to conduct an investigative stop, the officer is not required to inform that
person of the person's Miranda rights before posing questions that are
reasonably designed to confirm or dispel--as briefly as possible and without
any coercive connotation by either word or conduct--the officer's reasonable suspicion
that criminal activity is afoot. 94 H. 207, 10 P.3d 728.
When an airline passenger consents to a search of his or her
effects at an airport security checkpoint, the scope of the search reasonably
extends to those receptacles, the contents of which cannot be identified,
contained in luggage. 97 H. 71, 34 P.3d 1.
A mandatory blood test, pursuant to §286-163, absent an
arrest, violates neither the Fourth Amendment nor this section, so long as the
police have probable cause to believe that the driver has committed one of the
enumerated offenses and that the driver's blood contains evidence of
intoxication or drug influence, exigent circumstances excuse a warrant, and the
test is performed in a reasonable manner. 98 H. 221, 47 P.3d 336.
An officer is not prohibited from requesting a warrant check
incident to the issuance of a citation for a traffic violation when the check
does not prolong the length of time needed to issue a citation. 98 H. 337, 48
P.3d 584.
Where detective's affidavit in support of search warrant
lacked probable cause and warrant was thus unlawfully obtained, firearms that
detective found in tool shed and defendant's subsequent inculpatory statement,
given in response to detective's questions regarding the firearms, were inadmissible
at trial because they constituted evidence derived from the exploitation of an
unlawful search warrant, and therefore, were tainted by that prior illegality.
98 H. 387, 49 P.3d 353.
Assuming arguendo that, because drug detection dog jumped
into the truck's passenger compartment, this canine screening constituted a
"search" within the meaning of either the Fourth Amendment or this
article, defendant did not have a reasonable expectation of privacy in the
truck (or specifically in the airspace within the cab of the truck); thus,
neither the dog's nor police handler's conduct violated defendant's rights. 98
H. 426, 49 P.3d 1227.
In detaining defendant for the purpose of determining if
defendant was impaired and if defendant would consent to a search of
defendant's vehicle, officer did not exceed the scope of a temporary
investigative stop premised upon circumstances that gave rise to a reasonable
suspicion that defendant was driving while impaired or that defendant's vehicle
might contain illicit substances. 99 H. 370, 56 P.3d 138.
Red and glassy eyes, a criminal record, and imperfect
driving, standing alone, were insufficient to establish probable cause to
arrest a person for driving under the influence of drugs; as officer did not
have probable cause to arrest defendant and did not subject defendant to
sustained and coercive questioning, Miranda warnings were not warranted when
defendant was questioned about defendant's alcohol consumption. 99 H. 370, 56
P.3d 138.
Based on the totality of the circumstances, pool hall owner's
actions in searching and detaining defendant were as a private citizen, not as
a government agent; thus, owner's search and/or seizure of defendant was not
constrained by this section nor the Fourth Amendment. 100 H. 195, 58 P.3d
1242.
Section 803-37 does not apply to the interior office door of
a store; however, as an objectively reasonable expectation of privacy exists at
the interior office door of a store, police are required to provide reasonable
notification of their presence and authority before making a forced entry;
police satisfied this requirement by knocking three times, announcing
"police department, search warrant", and waiting fifteen seconds
before forcibly entering the locked interior office door of the store. 100 H.
210, 58 P.3d 1257.
Search warrant was not supported by probable cause where
credibility and reliability of anonymous tip concerning marijuana growing was
not established; thus, trial court erred in denying defendant's motion to
suppress items seized in the execution of the warrant. 102 H. 13, 72 P.3d 485.
Use of thermal imager device to detect heat emanating from
defendant's apartment constituted an unreasonable warrantless search; thus,
information gained should have been excluded in the establishment of probable
cause. 102 H. 13, 72 P.3d 485.
Officer's additional observations, considered in concert with
the reasonable inferences arising from defendant's screeching of tires,
warranted an objectively reasonable suspicion that defendant had, at a minimum,
committed the offense of reckless driving of a vehicle, in violation of §291-2;
thus, officer's investigative stop was within the parameters of permissible
police conduct. 102 H. 228, 74 P.3d 980.
Police may act on an anonymous tip of reckless driving, but
only under very narrow circumstances; based on the totality of the
circumstances, including the reliability of the tip and the imminence of the
harm, an anonymous tip was sufficiently reliable to justify an investigatory
stop. 103 H. 451, 83 P.3d 714.
Under this section, a guest of a home dweller is entitled to
a right of privacy while in his or her host's home; defendant thus had a
reasonable expectation of privacy in defendant's host's garage washroom; police
were not justified, under either an "open view" or a "plain
view" exception to the warrant requirement, in searching the area behind
the washing machine. 104 H. 109, 85 P.3d 634.
Even assuming the crime stoppers' anonymous tip was not
"tainted" as a result of it being relayed to school officials via a
police officer, the anonymous tip failed to provide even reasonable suspicion,
much less probable cause, to justify the search of minor; the anonymous tip
bore no indicia of reliability--the identity or status of the informant, the
time the tip came in, the basis, if any, for the informant's knowledge, and the
reliability of its assertion of illegality. 104 H. 403, 91 P.3d 485.
Where police had no specific or articulable basis to believe
that prior arrestee was in defendant's vehicle, police lacked reasonable
suspicion to stop defendant's vehicle. 106 H. 177, 102 P.3d 1075.
Where, solely on the ground that defendant turned off the
road to avoid the sobriety checkpoint, officer did not possess specific and
articulable facts before the stop giving rise to a "reasonable
suspicion" that defendant was at the time operating a vehicle while
intoxicated, stop of defendant's vehicle violated this section. 113 H. 283,
151 P.3d 764.
Where vice-officer's drug investigation constituted a seizure
separate and distinct from the traffic investigation stop inasmuch as it was
not "reasonably related in scope to the circumstances which justified the
interference in the first place", and the prosecution failed to adduce
specific and articulable facts to reasonably warrant the intrusion, the drug
investigation was unsupported by reasonable suspicion and constituted an
unconstitutional seizure; thus, all the evidence recovered as a result had to
be suppressed as fruit of the poisonous tree. 121 H. 261, 218 P.3d 749 (2009).
Searches of petitioner's vehicle were valid under the Hawaii
constitution, notwithstanding that they were lawful under the U.S.
Constitution, where petitioner's conduct of driving onto the Pearl Harbor Naval
Base demonstrated that petitioner consented to a search of petitioner's person
and property under petitioner's control. 125 H. 52, 252 P.3d 1229 (2011).
Where evidence sought to be admitted in state court is the
product of acts that occurred on federal property or in another state, by
Hawaii law enforcement officers or officers of another jurisdiction, such
evidence can only be admitted in a state prosecution if obtained in a manner
consistent with the Hawaii constitution and applicable case law. 125 H. 52,
252 P.3d 1229 (2011).
Where evidence sought to be admitted in state court is the
product of acts that occurred on federal property or in another state, by
Hawaii law enforcement officers or officers of another jurisdiction, due
consideration must be given to the Hawaii constitution and applicable case
law. 125 H. 382, 262 P.3d 1006 (2011).
Where petitioner's conduct of driving onto the Pearl Harbor
Naval Base demonstrated that petitioner consented to a search of petitioner's
person and property under petitioner's control, searches of petitioner's
vehicle were valid under the Hawaii constitution, notwithstanding that they
were lawful under the U.S. Constitution. 125 H. 382, 262 P.3d 1006 (2011).
Officer did not have reasonable suspicion to seize defendant
where officer did not have evidence that defendant, rather than other members
of defendant's group, had committed or was about to commit a crime; officer did
not observe defendant drinking, arguing, fighting or making unreasonable
amounts of noise; thus, appeals court erred in affirming the district court's
judgment. 126 H. 68, 266 P.3d 1122 (2011).
Where defendant was seized without reasonable suspicion when
officer told defendant to exit the vehicle, and continued when officer
subsequently chased defendant, officer's stop was a single illegal seizure;
thus, officer's continuing attempt to improperly seize defendant placed officer
in the position from which officer could observe the beer bottles in
defendant's car and was thus evidence obtained as a result of an illegal
seizure. 126 H. 68, 266 P.3d 1122 (2011).
Where officer did not have reasonable suspicion to stop
defendant when officer told defendant to exit car, and after officer chased
defendant and subsequently discovered probable cause to arrest defendant when
officer observed the beer bottles in defendant's car, the evidence obtained
after the initial stop was the fruit of the poisonous tree as it was discovered
by exploiting the officer's prior illegal seizure. 126 H. 68, 266 P.3d 1122
(2011).
Circuit court properly suppressed evidence obtained by the
State during unlawful search of defendant where State failed to present clear
and convincing evidence that the plastic methamphetamine packet obtained in
violation of this section would inevitably have been discovered by lawful means
during an inventory search; thus, evidence was not admissible under the
inevitable discovery exception to Hawaii's exclusionary rule. 128 H. 200, 286
P.3d 809 (2012).
The evidence obtained pursuant to the search warrant should
not have been suppressed, where the clerical error (misdating) 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 the warrant was supported by probable cause, the
evidence demonstrated the actual date of issuance, and the warrant was executed
within the time frame specified in HRPP rule 41. 131 H. 379, 319 P.3d 298
(2013).
Warrant to search premises does not authorize search of
identified possessions of visitors present during execution of warrant;
defendant had reasonable expectation of privacy in plastic beach bag on floor
near defendant. 5 H. App. 29, 677 P.2d 471.
Investigatory stop justified by circumstances. 5 H. App.
127, 681 P.2d 573.
Reasonable for police officers to order defendant to exit
automobile based upon totality of circumstances. 7 H. App. 28, 742 P.2d 388.
Suspicionless drug testing of firefighters by urinalysis in
conjunction with annual physical examination is not an unreasonable search. 8
H. App. 571, 816 P.2d 306.
Reasonable for police officer to assume that personal
property of non-resident of premises being searched under search warrant was
property of premises where there was no notice of ownership. 8 H. App. 610,
822 P.2d 23.
Warrantless seizure of defendant at sobriety roadblock was
unreasonable where State failed to prove that officer in charge had authority
to move roadblock's location due to traffic congestion. 9 H. App. 98, 825 P.2d
1068.
Section 803-37 violates Hawai‘i constitution to the extent
that it permits the police to break into the place to be searched if
"bars" to their entrance are not immediately opened. 77 H. 461
(App.), 887 P.2d 671.
In situations where defendant was the focus of a narcotics
investigation, was seized illegally, had defendant's bag detained for a canine
narcotics screening, and had defendant's subsequent movements secured by the
police pending completion of the screening, a reasonable person would believe
he or she was not free to leave. 78 H. 475 (App.), 896 P.2d 931.
Insofar as indictment related to resisting arrest charge,
indictment could not be treated as a "product or fruit" of any
illegal seizure or arrest of defendant. 78 H. 475 (App.), 896 P.2d 931.
Seizure violated reasonable seizure requirement in this
section because defendant was initially seized without probable cause, without
reasonable suspicion, and without defendant's consent. 78 H. 475 (App.),
896 P.2d 931.
Officer's order for defendant to exit vehicle was unlawful;
thus, subsequent plain view of, search for, and seizure of incriminating
evidence was tainted and should have been suppressed. 80 H. 75 (App.), 905
P.2d 50.
Probable cause existed for issuance of warrant based on
officer's affidavit that relied on police investigation as well as on
informant's information. 81 H. 29 (App.), 911 P.2d 1101.
Where warrant only authorized search of specific room of
business and another subsequently discovered room of business separated by a
hallway and other numbered and unnumbered rooms was also searched, other room
was not within scope of warrant and constituted illegal search. 82 H. 162
(App.), 920 P.2d 376.
Evidence found in defendant's living room illegally seized where
no exigent circumstances or search warrant to enter living room and person
consenting to police entering living room did not have "actual
authority" to consent. 82 H. 394 (App.), 922 P.2d 1007.
Hawaii constitution does not permit validation of searches
pursuant to search warrants that are facially expired when the searches are
made. 83 H. 87 (App.), 924 P.2d 581.
Where defendant was seated in driver's seat of parked car,
key was in ignition and engine was not running, defendant was
"seized" when officer asked defendant for driver's license, vehicle
registration card, and vehicle reconstruction permit. 87 H. 487 (App.), 960
P.2d 157.
Where Hawaii county did not require posting of reconstructed
vehicle permit decal on vehicle and no evidence that defendant actually
operated vehicle, officer's suspicion that defendant operated a reconstructed
vehicle without a valid permit was not reasonable; thus, evidence of DUI and no
reconstruction permit was illegally obtained through a warrantless seizure. 87
H. 487 (App.), 960 P.2d 157.
Where State established by clear and convincing evidence that
contents of defendant's pockets would have been revealed in an inventory search
of defendant upon arrival and booking at police station, drug pipe and packet
properly admitted under the inevitable discovery exception to the exclusionary
rule. 91 H. 111 (App.), 979 P.2d 1137.
Right not violated where defendant did not have a reasonable
expectation of privacy on busy public street, defendant took no precautions to
insure privacy by screening defendant's presence or defendant's drug dealing
activity from public view, and no objectively reasonable expectation of privacy
for persons, objects, or activities which were visible to the public and
captured by non-intrusive video camera. 92 H. 454 (App.), 992 P.2d 723.
Seizure of motorist justified where report of the hazardous
driving matched both the area the motorist was driving in and the make, model,
color, and license number of the vehicle being allegedly hazardously driven.
93 H. 337 (App.), 3 P.3d 503.
Although initial seizure was justified, once officers
determined that no weapon was involved and no one wanted to make a complaint,
and thus dispelled the reasonable suspicion that justified the initial seizure,
defendant should have been released; by further detaining defendant and
demanding identification, officer subjected defendant to an illegal seizure.
93 H. 502 (App.), 6 P.3d 374.
Where officer made plain to defendant that defendant was the
focus of a criminal investigation, demanded to see defendant's hands, and a
reasonable person would not have felt free to leave, defendant was seized for
purposes of this section; seizure continued throughout ensuing physical
seizure, takedown and handcuffing, and continued after the removal of the
handcuffs. 93 H. 502 (App.), 6 P.3d 374.
Conduct of officer who had been directing traffic, in walking
behind motorist's vehicle, from the passenger's side to the driver's side,
after motorist had been stopped for three to five seconds and had failed to
follow officer's hand instructions, was not an investigative stop, as
reasonable person would not have believed person was not free to leave. 95 H.
270 (App.), 21 P.3d 475.
Defendant had a constitutionally protected expectation of
privacy not only in the general premises of the house, but also in the specific
area that was defendant's bedroom; defendant's lack of property interest in
defendant's parents' house was not a bar to a claim that defendant had a
protected privacy interest in that house. 96 H. 472 (App.), 32 P.3d 116.
Exigent circumstances did not exist to justify warrantless
police entry into and search of house, where, by securing the house believed to
hold their quarry, the police had eliminated the perceived threat posed by a
free-roaming, allegedly armed suspect, and by closing off the street, the
police were in control of the situation, thus having sufficient time to
consider their options, plan and obtain a search warrant. 96 H. 472 (App.), 32
P.3d 116.
Warrantless search of defendant's bedroom in defendant's
parents' house unreasonable where mother did not have actual authority to
consent to search of son's bedroom; son had, by implicit agreement and in
practice, exclusive possession of bedroom, and there was no indication that son
gave mother access to room or permission to allow others access. 96 H. 472
(App.), 32 P.3d 116.
Where defendant exhibited an actual, subjective expectation
of privacy in defendant's bedroom by keeping door locked at all times, and no
other person had the key or access to the room, and as an adult child living
with parents is not uncommon in this State, defendant's expectation was one
that society was prepared to recognize as objectively "reasonable";
thus, defendant's privacy interests in common areas of parents' house and in
defendant's bedroom were constitutionally protected. 96 H. 472 (App.), 32 P.3d
116.
Where neither consent nor exigent circumstances justified
warrantless police entry into and search of defendant's bedroom, based on the
"adequate and independent state grounds" of this section, police
search was unlawful and sawed-off shotgun seized as a result should have been
suppressed. 96 H. 472 (App.), 32 P.3d 116.
The federal and state regulatory schemes, which establish
security and screening procedures at airports governed by both the Federal
Aviation Administration and the state department of transportation, made
private security employee's search of passenger's toolbox a governmental search
for purposes of the Fourth Amendment and this section. 97 H. 77 (App.), 34
P.3d 7.
Warrantless search of passenger's toolbox at airport by
private security company employee was reasonable under the Fourth Amendment and
this section. 97 H. 77 (App.), 34 P.3d 7.
Where totality of circumstances clearly showed that store
asset protection agent conducted a purely private search of defendant with no
governmental involvement, trial court did not err in denying defendant's motion
to suppress evidence. 97 H. 247 (App.), 35 P.3d 764.
Right not violated where police officer's search of
defendant's fanny pack found by hotel guest and already inventoried by hotel
security fell under the lost property inventory exception to the warrant
requirement. 101 H. 112 (App.), 63 P.3d 420.
Warrantless seizure of plaintiff's vehicle not
unconstitutional where seizure was from a public place and officers had
probable cause to believe it was forfeitable contraband. 101 H. 422 (App.), 70
P.3d 648.
Applying the totality of the circumstances test, trial court
correctly determined that adult video store clerk was not acting as a
"government agent"; clerk was not actively recruited, directed, or
paid by the police, and clerk's actions were for a private purpose--to make
sure defendant was complying with video store's no-smoking policy and not doing
anything that would harm the store. 103 H. 11 (App.), 78 P.3d 1159.
Warrantless seizure of defendant's glass pipe and its
contents justified where police had probable cause to arrest defendant after
viewing defendant smoking glass pipe in video booth, and exigent circumstances
existed as defendant was lawfully observed ingesting an illegal drug and any
delay would allow more, if not all, of the drugs to be consumed, and as
defendant rented video booth for only half an hour, defendant would likely have
finished defendant's "business" long before police could have
obtained a warrant. 103 H. 11 (App.), 78 P.3d 1159.
Where defendant took no steps to cover up "glory
hole" in adult video preview booth, defendant could not have reasonably
expected that defendant's conduct would not be viewed through the glory hole;
thus, defendant could not have had a subjective expectation of privacy in the
video preview booth that society would recognize as objectively reasonable.
103 H. 11 (App.), 78 P.3d 1159.
Defendant was not subject to a de facto arrest not supported
by probable cause where officers' use or display of force was reasonably
necessary to protect their personal safety, was in response to defendant's
erratic and hostile behavior, and defendant's conduct made it reasonable for
the officers to insist that defendant submit to a pat-down search for weapons.
107 H. 144 (App.), 111 P.3d 39.
When police officers encounter someone while lawfully at a
residence to execute an arrest warrant, the officers may detain that person and
perform a pat-down search for weapons if the officers have a reasonable and
articulable basis to suspect that the person may possess a weapon and pose a
danger; the officers may compel such person to submit to a pat-down search for
weapons even if the officers have no reasonable suspicion that the person is
involved in criminal activity. 107 H. 144 (App.), 111 P.3d 39.
Authorization in search warrant to search any personal,
rental, or borrowed vehicle that defendant was operating or occupying was not
unconstitutionally overbroad, and was sufficiently particularized where
authorization was based on probable cause that defendant would be in possession
of ice, and would be transporting it in any number of different vehicles in
which defendant was either the operator or an occupant. 108 H. 361 (App.), 120
P.3d 260.
Under this section, and contrary to the United States Supreme
Court's holding in New York v. Harris, a statement taken at the police station
after an unlawful arrest in the suspect's home remains subject to suppression
as the "fruit of the poisonous tree", even though the police had
probable cause to arrest all along. 114 H. 271 (App.), 160 P.3d 1258.
Where defendant removed defendant's fanny pack from waist and
attempted to discard it four different times, defendant did not exhibit a
subjective expectation of privacy in the fanny pack; even assuming defendant
did, defendant's expectation of privacy was not objectively reasonable where
defendant failed to establish that defendant had a privacy interest in the
places defendant attempted to throw the fanny pack; thus, where defendant
voluntarily threw the fanny pack onto a building roof top, defendant abandoned
defendant's expectation of privacy. 116 H. 29 (App.), 169 P.3d 981.
Where defendant spontaneously denied ownership of nylon bag
in response to a request to sign a consent to search form, rather than in
response to police interrogation, defendant's unequivocal disclaimer of
ownership showed defendant's intent to abandon the bag, thus relinquishing any
expectation of privacy defendant had in the contents of the bag; thus,
warrantless search of the bag by police did not violate this section. 119 H.
15 (App.), 193 P.3d 1215.
Where police consent form stated that search of defendant's
automobile and its contents was expressly confined to evidence of
"firearms, ammunition", and officer acknowledged that the wallet was
lying closed on the seat and that officer searched the wallet for ammunition
but that officer was not nervous because officer could not "feel
anything", officer's observations did not reasonably suggest the presence
of ammunition in the wallet; thus, the continued search of the wallet that
uncovered another person's license was objectively unreasonable and exceeded
the scope of defendant's consent. 121 H. 533 (App.), 221 P.3d 511 (2009).
Where officer turned defendant's pockets inside out during a
pat down search incident to arrest, the search was not limited in scope to what
was "reasonably necessary to discover the fruits or instrumentalities of
the crime for which defendant was arrested, to protect the officer from attack,
or to prevent the offender from escaping"; thus, officer's actions violated
this section. 122 H. 229 (App.), 225 P.3d 671 (2010).
The misdating of a search warrant did not require suppression
of the search warrant evidence where, under the circumstances of the case, the
government agent obtained a search warrant supported by probable cause, the
only basis for challenging the warrant was it being misdated by the issuing
judge, and the actual date of issuance could be established by irrefutable
evidence. 128 H. 328 (App.), 289 P.3d 964 (2012).
Cited: 56 H. 366, 537 P.2d 8.
Mentioned: 53 H. 327, 493 P.2d 306.
