State v. Ikimaka
| Decision Date | 09 June 2020 |
| Docket Number | SCWC-16-0000003 |
| Citation | 465 P.3d 654 |
| Parties | STATE of Hawai‘i, Respondent/Plaintiff-Appellee/Cross-Appellant, v. Larry IKIMAKA, Petitioner/Defendant-Appellant/Cross-Appellee, Liane Henderson and Cheri Numazawa, Defendant-Appellee/Cross-Appellee. |
| Court | Hawaii Supreme Court |
Rosa Flores, for Petitioner
Tracy Murakami, for Respondent
This appeal arises from the conviction of Larry Ikimaka ("Ikimaka") for one count of promoting a dangerous drug in the second degree in violation of Hawai‘i Revised Statutes ("HRS") § 712-1242 (Supp. 2007) and one count of unlawful use of drug paraphernalia in violation of HRS § 329-43.5(a) (Supp. 1988) after a jury trial in the Circuit Court of the Fifth Circuit ("circuit court").1
On October 13, 2014, Kauai Police Department ("KPD") received a 911 call from Cheri Numazawa ("Numazawa") alleging Ikimaka had hit her, taken her purse, and driven off in a gold Chevy truck. At around 2:33 a.m., Officer Hansen Hsu ("Officer Hsu") responded to the call. Officer Hsu saw a gold Chevy truck and initiated a traffic stop. Officer Hsu approached the truck, observed Ikimaka in the driver's seat and Liane Henderson ("Henderson") in the passenger's seat, and he had Ikimaka and Henderson exit the truck and sit on the side of the road.
Meanwhile, KPD officers Creighton Tamagawa ("Officer Tamagawa") and Mason Telles ("Officer Telles") attempted to locate Numazawa to get a statement, and they eventually located her after about half an hour. Numazawa told the officers that Ikimaka took her purse, but she did not want to press charges and did not want Ikimaka arrested. Approximately forty minutes after the initial stop, Officer Hsu learned through dispatch that Numazawa had been located and contacted Sergeant Colin Nesbitt ("Sergeant Nesbitt"). Officer Hsu and Sergeant Nesbitt determined they had probable cause to seize the truck for theft on the grounds it contained Numazawa's purse. They also discussed Numazawa's alleged prior drug history.
Officer Hsu informed Ikimaka and Henderson that KPD was impounding the truck, but that they were not being arrested and were free to go. Henderson left the scene, but Ikimaka chose to stay, and Officer Roldan Agbayani ("Officer Agbayani"), then read Ikimaka his Miranda rights. Ikimaka indicated he did not want to make a statement.
The truck was towed to the KPD evidence warehouse, and Sergeant Nesbitt requested a drug-detecting dog to sniff the outside of the truck. The dog alerted to the presence of drugs. Based on the dog sniff, Officer Hsu obtained a warrant to search the truck for Numazawa's purse and for drugs. Officer Hsu executed the search warrant and found three purses in the truck, all of which contained illegal drugs.
Ikimaka, Henderson, and Numazawa were then arrested and charged for possession of the drugs. No other charges were filed against Ikimaka. Ikimaka filed a motion to suppress, arguing the warrantless seizure of the truck was unreasonable and the dog sniff was a prohibited general exploratory search. The circuit court denied the motion to suppress.
After a joint jury trial with Numazawa,2 the jury found Ikimaka guilty of both charges. Numazawa was acquitted. Ikimaka was sentenced to four years of probation with an additional nine months of imprisonment as a condition of probation.
On appeal to the Intermediate Court of Appeals ("ICA"), Ikimaka asserted various errors, including that (1) the State improperly elicited testimony regarding Ikimaka's exercise of his right to remain silent; and (2) Officer Hsu was improperly allowed to speculate on Ikimaka's mental state.3 In a memorandum opinion, the ICA affirmed Ikimaka's convictions. Ikimaka reasserts the questions presented to the ICA in his application for certiorari to this court.4
Before addressing two of Ikimaka's questions on certiorari, delineated above, we notice plain error affecting substantial rights with respect to the circuit court's denial of Ikimaka's motion to suppress. As the dog sniff conducted by KPD was unrelated to the initial stop and seizure of the truck as evidence of the alleged theft of Numazawa's purse and KPD did not have independent reasonable suspicion to believe the truck driven by Ikimaka contained drugs, the dog sniff violated Ikimaka's constitutional right against unreasonable searches under article I, section 7 of the Hawai‘i Constitution. State v. Alvarez, 138 Hawai‘i 173, 378 P.3d 889 (2016) (); State v. Estabillio, 121 Hawai‘i 261, 273, 218 P.3d 749, 761 (2009) (). Thus, Ikimaka's motion to suppress should have been granted as to the drug evidence.
To provide guidance, we also address Ikimaka's first two questions on certiorari. The deputy prosecuting attorney ("DPA") should not have elicited testimony regarding Ikimaka's exercise of his right to remain silent, and the circuit court erred by admitting into evidence Officer Hsu's lay opinion testimony on Ikimaka's intent and knowledge. We do not address Ikimaka's remaining questions on certiorari.
We therefore remand this matter to the circuit court for further proceedings consistent with this opinion.
A. Circuit court proceedings
1. Charges
On October 27, 2014, the State filed a complaint against Ikimaka, Henderson,5 and Numazawa. Ikimaka was charged with one count of promoting a dangerous drug in the second degree in violation of HRS § 712-12426 and one count of unlawful use of drug paraphernalia in violation of HRS § 329-43.5(a).7 Numazawa was charged with one count of promoting a dangerous drug in the third degree in violation of HRS § 712-1243 (Supp. 2004) and one count of unlawful use of drug paraphernalia in violation of HRS § 329-43.5(a).
2. Ikimaka's motion to suppress
On February 20, 2015, Ikimaka filed a pretrial motion to quash search warrant and suppress evidence ("motion to suppress") for all evidence recovered from the truck. Ikimaka argued that the "automobile exception" did not justify the warrantless seizure of the truck because there was no reason to believe the purse might be removed or destroyed. Ikimaka also argued the truck's seizure was unnecessary because he had volunteered to return Numazawa's purse, citing the ICA's holding in State v. Ramos, 93 Hawai‘i 502, 513, 6 P.3d 374, 385 (App. 2000), that "governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances."
Ikimaka further maintained that KPD only had probable cause to search the truck for Numazawa's purse, not for drugs. Ikimaka also argued that the dog sniff constituted a "general exploratory search" prohibited by State v. Groves, 65 Haw. 104, 649 P.2d 366 (1982).
In its February 25, 2015 opposition memorandum, the State argued KPD had probable cause to believe that Ikimaka had committed theft and that evidence of the theft was in the truck based on Numazawa's 911 call and Ikimaka's statement to police that he had Numazawa's purse in the truck.
The State's submissions also showed that on October 13, 2014, at around 5:39 a.m., Sergeant Nesbitt requested a "canine sniff" on the truck. At around 11:35 a.m., a KPD narcotics detector dog alerted to the presence of narcotics on the passenger's side door of the truck. On October 14, 2014, Officer Hsu's application for a warrant to search the truck, which was registered to a Natasha Lazaro ("Lazaro"), for Numazawa's purse as well as "Methamphetamine, Heroin, Cocaine, Marijuana, and all of its various forms," was approved.
On October 15, 2014, Officer Hsu executed the search warrant on the truck. Officer Hsu found a maroon bag under the driver's seat containing two glass tubes, $1,400 in cash, plastic bags containing white crystalline substances, a digital scale, and an Ace Hardware receipt bearing Ikimaka's name. Officer Hsu also found a black purse on the floor of the passenger's side containing Henderson's driver's license, a plastic bag containing a "green leafy substance resembling marijuana," and a plastic bag containing a white crystalline substance. He also found a "Dooney and Bourke" purse containing a glass pipe, a digital scale, plastic bags containing white crystalline substances, and IDs bearing Numazawa's name.
The State maintained that KPD was authorized to seize the truck pursuant to the automobile exception, and that exigent circumstances existed because "[i]f police had not seized the vehicle, there was an extremely high risk Ikimaka or Henderson would have moved, removed or destroyed the vehicle and/or evidence." The State also asserted that a dog sniff "of the airspace around a closed container is not a Fourth Amendment or Article I, section 7 search," citing State v. Snitkin, 67 Haw. 168, 171, 681 P.2d 980, 983 (1984), and Groves, 65 Haw. 104, 649 P.2d 366.
At the beginning of the April 2, 2015 hearing, the State took the position that no evidence should be presented on the dog sniff issue because it was "contained within the search warrant." The circuit court agreed that "the review is based on the four corners of the warrant," and stated it was not going to take evidence on the dog sniff. Citing Groves, 65 Haw. 104, 649 P.2d 366 and Snitkin, 67 Haw. 168, 681 P.2d 980, the circuit court found that the dog sniff of the airspace around the car was appropriate, and it denied the motion to suppress regarding the use of the drug-sniffing dog.
At the hearing, Ikimaka called Officers Hsu, Agbayani, and Telles as witnesses, who testified in relevant part to the following additional facts.
On October 13, 2014 at around 2:33 a.m., Officer Hsu received information from dispatch about a 911 call made...
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