State v. Dias

Decision Date10 June 1970
Docket NumberNo. 4860,4860
Citation470 P.2d 510,52 Haw. 100
Parties, 52 Haw. 128 STATE of Hawaii v. Henry Torres DIAS.
CourtHawaii Supreme Court

Syllabus by the Court

1. The state cannot charge a person with a crime of possession and then deny that person his remedy at law to object to the search and seizure of that which the state says is his.

2. A person who is the victim of a search and seizure directed against him has standing to assert his rights protecting him against an unreasonable search and seizure.

3. Although every person has reasonable expectations of privacy with regard to his person wherever he may go, this is not the case with respect to places where an individual happens to be; the place must be of such character as to give rise reasonably to expectations of privacy.

4. Exceptions to the constitutional requirement of a warrant must be strictly observed so that in practice they do not swallow up the requirement.

5. Because the right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals, a warrant must be obtained before a search may be conducted unless there are 'exigent circumstances' or the search is 'incident to an arrest.'

6. The mere presence of the defendant plus the officer's testimony that he saw hand motions toward the top of and behind a washing machine were not enough to measure up to the statutorily and constitutionally required standard of proof beyond a reasonable doubt that the defendant possessed the narcotics found in and behind the washing machine.

Stuart M. Cowan, Honolulu (Greenstein & Cowan, Honolulu, of counsel) for defendant-appellant.

Barry Chung, Pros. Atty., Patrick Yim, Leland H. Spencer, Deputy Pros. Attys., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and KABUTAN, Circuit Judge, in place of KOBAYASHI, J., disqualified.

LEVINSON, Justice.

This is a search and seizure case involving a warrantless search and the subsequent arrest of the defendant for the unlawful possession of narcotics. Pursuant to an informer's tip that the defendant was selling narcotics at a certain location, Officer Borges of the Honolulu Police Department established surveillance of the suspected narcotics activity at the corner of North School Street and Old Palama Road in Honolulu. He stationed himself in a men's rest room in a park approximately 150 to 200 yerds from the intersection. The officer then conducted a surveillance with binoculars of a number of persons, including the defendant, conversing on privately used property in a passageway between two apartment houses. The apartments were located on the other side of the intersection from the surveillance post.

The officer saw a number of convicted narcotics violators approach the group, speak to the defendant, go behind the building with him, and return seconds later. With respect to one such person, the officer saw the defendant and the other party, Mr. Kim, make motions with their hands towards each other as if they were exchanging something although the officer said he saw nothing actually transferred. A few minutes later Mr. Kim and his wife drove up and parked twenty feet from the rest room where the officer was stationed. The officer observed Mr. Kim lean forward to the right of the steering wheel, sit up with a belt strapped around his left arm, and then rub his left arm vigorously with his right hand. Mrs. Kim performed the same motions. Such motions are commonly associated with the injection of heroin into the bloodstream.

The officer later observed another person, Mr. Bright, approach the defendant. Hand motions were made as though something were given to the defendant. The defendant then went to a washing machine positioned against one of the buildings. He reached behind it and appeared to hand something to Mr. Bright. Later, the defendant appeared to pur something in a hole in the wall above the washing machine. At that point the officer radioed another officer to search the area near the machine and arrest the defendant for unlawful possession of narcotics. This was done and a quantity of heroin was found rolled up in newspaper and stuck in the top of the washing machine and in a hole in the wall behind the machine.

On cross-examination Officer Borges admitted that he never saw the defendant in possession of narcotics. In fact, he said he saw nothing exchanged by the defendant and the others. All he saw were various hand motions. Nothing was seen beside the washing machine or on top of it. The officer stated that he had probable cause to order the arrest because of 'the people that I saw coming there, the activity, the actions, the way they met, I had reason to believe they were selling heroin. * * *' The officer further testified that there were no warrants for the search and the subsequent arrest although he admitted that it was possible to obtain the warrant without fear of losing the evidence.

Pursuant to Rule 41(e) of the Hawaii Rules of Criminal Procedure the defendant filed a motion to suppress the physical evidence on the ground that it was obtained as the result of an unlawful search and seizure. Pursuant to Rule 12 of the Hawaii Rules of Criminal Procedure he also filed a motion to dismiss the case on the ground that upon the suppression of the physical evidence there would be no probable cause to hold him for trial and on the further ground that there was no evidence linking the narcotics to the defendant. After a hearing, the trial court denied the motions. It was then agreed to waive the jury and consider the proceedings as the trial of the case. The defendant was found guilty of unlawful possession of a narcotic drug under R.L.H.1955, as amended §§ 52-10, 52-14 (now HRS §§ 329-1, 329-5) and sentenced to imprisonment for ten years.

The defendant appeals arguing (1) that there was an illegal search and seizure of the narcotics and (2) that the evidence was insufficient to find the defendant guilty beyond a reasonable doubt of unlawful possession of the narcotics.

We agree with the defendant's contentions. Because of the fact that this case contains so many constitutional errors which have traveled this far without being corrected, we are constrained to take this occasion to reaffirm the importance and the sanctity of one of our keystone individual liberties-the right to be free of unreasonable searches and seizures as embodied in the fourth amendment to the federal constitution. This hard-won right cannot be taken lightly. To regard the guarantees of the fourth amendment as technicalities or mere procedural hurdles is to deprecate the very basis of a fundamental heritage-the right to be left alone. It cannot be too much to ask that the police perform their function legally even though their quarry, the suspected criminal, may not. This was Mr. Justice Brandeis' point 40 years ago in his famous and now vindicated dissent in Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928):

In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whold people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the Government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution.

I. THE SEARCH AND ARREST OF DEFENDANT.
A. Standing to Object to an Unreasonable Search and Seizure.

The fourth amendment of the United States Constitution guarantees that 'the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * * *' Article I, section 5 of the Hawaii Constitution is similarly worded. The United States Supreme Court has held that 'all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.' Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1961, 6 L.Ed.2d 1081 (1961). This exclusionary rule is premised on the policy that if the police cannot use such evidence to obtain convictions, illegal police practices will be deterred. It is further supported by the policy of making the agents of the state perform their tasks within the law regardless of the lawless tactics of those they seek to bring to justice. Mapp v. Ohio, supra, at 656, 659, 81 S.Ct. 1684.

At the outset the state would have us disregard the question of the constitutionality of the search and seizure, arguing that the defendant in this case has no 'standing' to raise the objection. Relying on Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), it argues that the defendant was on the grounds as a trespasser and had no rights. We do not agree. The state's argument confuses two very different points: they are (1) the question of standing and (2) the question of what is an unreasonable search and seizure. See State v. Matias, 51 Haw. 62, 64, 451 P.2d 257, 259 (1969).

The short answer to the question of standing in this case is that the state cannot charge a person with possession and then deny that person his remedy at law to object to the search and seizure of that which the state says is his. The state cannot have it both ways. Mr. Justice Frankfurter put it aptly in Jones v. United States, 362 U.S. 257, 263-264, 80 S.Ct. 725, 723, 4 L.Ed.2d 697 (1960):

The prosecution here thus subjected the defendant to the penalties meted out to one in lawless possession while refusing him the remedies designed for one in that situation. It is not consonant with...

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