520 P.2d 51 (Hawai'i 1974), 5431, State v. Kaluna

Docket Nº:5431.
Citation:520 P.2d 51, 55 Haw. 361
Opinion Judge:[10] Levinson
Party Name:STATE of Hawaii, Plaintiff-Appellant, v. Johnette Kapulani KALUNA, also known as Lynn Brewer, Defendant-Appellee.
Attorney:[7] Richard D. Wurdeman, Deputy Prosecuting Attorney, City & County of Honolulu (Barry Chung, Prosecuting Attorney, of counsel) for plaintiff-appellant. [8] Marie N. Milks and Gordon Uechi, Deputy Public Defenders (Donald K. Tsukiyama, Public Defender, of counsel) for defendant-appellee.
Case Date:March 18, 1974
Court:Supreme Court of Hawai'i
 
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520 P.2d 51 (Hawai'i 1974)

55 Haw. 361

STATE of Hawaii, Plaintiff-Appellant,

v.

Johnette Kapulani KALUNA, also known as Lynn Brewer,

Defendant-Appellee.

No. 5431.

Supreme Court of Hawai'i.

March 18, 1974

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[Copyrighted Material Omitted]

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Syllabus by the Court

1. A search without a warrant carries an initial presumption of unreasonableness, which the State can overcome only by showing that the facts of the case justified the police in searching without a warrant and that the search itself was no broader than necessary to satisfy the need which legitimized departure from the warrant requirement in the first place.

2. A search of an arrestee's person conducted at a police station a reasonable time after his valid arrest is no less 'incident' to [55 Haw. 365] that arrest than a search conducted at the scene thereof.

3. The fourth amendment to the United States Constitution as presently construed does not prohibit the police from conducting a detailed search of the body of an individual under lawful custodial arrest, including a search of items in that individual's possession at the time of his arrest, and the scope of such a search is not limited

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by a need to disarm the individual or discover evidence of the crime for which he was arrested.

4. The Hawaii Supreme Court has final, unreviewable authority to extend the protections of the Hawaii Bill of Rights beyond those of textually parallel provisions in the Federal Bill of Rights when logic and a sound regard for the purposes of those protections so warrant.

5. To be reasonable under article I, section 5 of the Hawaii Constitution, a warrantless search of an arrestee's person incident to his lawful custodial arrest must be strictly limited in scope to disarming the arrestee when there is reason to believe that he may be armed and to discovering fruits and instrumentalities of the crime for which he was arrested.

6. [55 Haw. 362] The mere surrender of a personal possession to a searching authority does not constitute a knowing waiver of the right to be free of unreasonable searches and seizures when it is clear that the search is to be conducted with or without the consent of the searched party.

7. An internee may be searched without warrant prior to his imprisonment in order to prevent the entry into jail of weapons or harmful drugs; once the internee has surrendered his possessions which are possible repositories for such items, however, this exception to the warrant requirement does not authorize a further search into the contents of his possessions thus surrendered.

8. An internee may be required to surrender his possession prior to incarceration for the purpose of an inventory to facilitate the processing of subsequent claims for loss or damage; the need to inventory an internee's possessions, however, does not justify a search of their contents when the basic purposes of an inventory search can be served by means which are less intrusive into the internee's privacy.

[55 Haw. 375] Richard D. Wurdeman, Deputy Pros. Atty., City & County of Honolulu, Honolulu (Barry Chung, Pros. Atty., of counsel), for plaintiff-appellant.

Marie N. Milks and Gordon Uechi, Deputy Public Defenders, Honolulu (Donald K. Tsukiyama, Public Defender, of counsel), for defendant-appellee.

[55 Haw. 376] Before RICHARDSON, C. J., LEVINSON, KOBAYASHI and OGATA, JJ., and Circuit Judge LUM assigned by reason of vacancy.

LEVINSON, Justice.

[55 Haw. 362] This appeal poses important questions concerning the allowable scope, under the federal and state constitutions, of a warrantless search of an arrestee's body conducted incident to a lawful arrest and preliminary to the arrestee's incarceration. On the afternoon of September 26, 1972, two men, one of whom was armed with a pistol, and a woman reportedly committed an attempted robbery of the McDonald's restaurant in Palolo. In the evening of the same day, the defendant was arrested on the belief that she was one of the participants in the alleged crime. The arresting officers, both of whom were males, did not search the defendant at the scene of her arrest. Instead, they transported her directly to the police station, where she was placed in the custody of police matron Yok Lan Mehau at the receiving desk. Matron Mehau led the defendant into a bathroom and told her to remove her outer garments in preparation for a search. After stripping to her underwear, the defendant reached into the right side of her brassiere and pulled out a piece of tissue paper which was folded in a square. This packet she handed to matron Mehau, stating 'This is all I have.'

Although matron Mehau 'has no idea' what was inside the folded tissue, she nonetheless opened it '(j)ust to see [55 Haw. 363] what she had.' Inside the packet, matron Mehau discovered four red capsules which latter laboratory analysis showed to be Seconal, a barbiturate.

The defendant was subsequently charged with the unlawful possession of these capsules;

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she was never charged with attempted robbery. After a pre-trial hearing on the defendant's motion to suppress the capsules as evidence, Circuit Court Judge Lanham on January 30, 1973, ordered suppression on the ground that the defendant's search at the station house was unconstitutionally broad. From this order the State appeals. We affirm Judge Lanham's decision. Since we are of the opinion that the search was unreasonable even if the arrest for attempted robbery was valid, we need not decide whether the police had probable cause to arrest the defendant. See Preston v. United States, 376 U.S. 364, 365, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

PROFFERED JUSTIFICATIONS FOR THE SEARCH

The State suggests two basic theories to support the legality of the search in this case by characterizing it as (1) a search incident to a lawful arrest, or (2) a pre-incarceration search. We note at the outset that since it was conducted without a warrant, the search carries an initial presumption of unreasonableness. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). To overcome this presumption, the State must show that the facts of the case justified the police in searching without a warrant and that the search itself was no broader than necessary to satisfy the need which legitimized departure from the warrant requirement in the first place. See e. g., Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900, 2003 (1973) ('the scope of a warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement'). This principle has been so often reiterated that until recently it was thought to be an immutable corollary of the fourth amendment 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' It clearly is and has been a principle impliedly rooted in article I, section 5 of the Hawaii Constitution, which provides:

[55 Haw. 364] 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.

See State v. Dias, 52 Haw. 100, 107, 470 P.2d 510, 514-515 (1970). Cognizant of this tenet that the scope of a warrantless search must be strictly tailored to the reasons for allowing it, we consider the exceptions to the warrant requirement cited by the State and their applicability to the facts of this case.

  1. Search Incident to a Lawful Arrest

    As we generalized in State v. Park, 50 Haw. 275, 276, 439 P.2d 212, 213 (1968), '(a) contemporaneous search incidental to a lawful arrest may be made for the fruits of the crime, implements used to commit the crime and for weapons.' The defendant argues as a threshold matter that the search at the police station, some two and a quarter hours after her arrest, was too remote from the time of that arrest to be incident to it. She cites Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), wherein the Court stated: 'Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.' On the facts of Preston and as a general statement, however, this principle applies primarily to searches of the area at which the defendant was arrested; it is obvious that once an arrestee has been removed from that area, he is no longer capable of using weapons or destroying evidence located there. This being so, legitimate necessity no longer impedes the police from securing a warrant to search the site. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Dias, supra.

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    However, the person of an arrestee is subject to his control at all times during and after the arrest. Since he could use weapons or destroy evidence hidden on his person at any time during his custody, a search conducted...

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