State v. Boynton

Decision Date24 January 1978
Docket NumberNos. 5912,5913,s. 5912
PartiesSTATE of Hawaii, Plaintiff-Appellant, v. Lucinda BOYNTON, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. Andy UTSAL, Defendant-Appellee.
CourtHawaii Supreme Court

Syllabus by the Court

1. Governmental intrusion into matters and areas in which the defendant possesses a reasonable expectation of privacy is a search within the meaning of the fourth amendment to the United States Constitution and article I, section 5 of the Hawaii State Constitution.

2. Because society in general expects that the contents of areas enclosed by high fences constructed to render seeing through them practically impossible are in fact protected from view, the expectation of privacy from ground observers as to that which is so enclosed is reasonable.

3. The fourth amendment to the United States Constitution and article I, section 5 of the Hawaii State Constitution protect against unreasonable intrusions by the government, but not against those of private persons.

4. If the private party performing a search is deemed to be a governmental agent, the search so conducted is subject to a motion to suppress if found by a court to be violative of the fourth amendment's requirements.

5. The fourth amendment applies to a search if the private party who performed the search in light of all the circumstances of the case may be regarded as having acted as an instrument or agent of the state.

6. The active recruiting of an informant by a police officer is strong evidence that the informant was a governmental agent when he performed a search of a defendant's premises.

7. An informant's lack of a reason independent of police concerns for having conducted a search of a defendant's premises infers that the informant is a governmental agent.

8. Payment made by the government to the informant may be considered with the other surrounding circumstances to determine if an informant was acting as an instrument of the government or if his search must be deemed governmental.

Steven R. Scott, Deputy County Atty., County of Maui, Wailuku, for plaintiff-appellant.

William L. Kohne, Wailuku (Langa & Kohne, Wailuku, of counsel), for defendant-appellee Lucinda Boynton.

Philip H. Lowenthal, Public Defender, Wailuku, for defendant-appellee Andy Utsal.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

Each of the defendants-appellees Lucinda Boynton and Andy Utsal (hereinafter appellees) had been charged in two separate three-count indictments returned by the Maui Grand Jury for the alleged offenses of promoting detrimental drugs in the second degree in violation of Sec. 712-1248(1)(c) 1 of the Hawaii Revised Statutes, promoting a harmful drug in the third degree in violation of Sec. 712-1246(1) 2 of the Hawaii Revised Statutes, and promoting a dangerous drug in the third degree in violation of Sec. 712-1243(1) 3 of the Hawaii Revised Statutes. On February 22, 1975, appellees were co-tenants of a dwelling and surrounding curtilage, which were searched by police officers under a warrant. From that search, the police recovered a cache of lysergic acid diethlamide (L.S.D.), hashish oil, and marijuana plants and seedlings. The state appeals from the trial court's orders granting appellees' motions to suppress the evidence alleged to have been illegally seized. 4 Because the facts and legal issues involved in each case are identical, we have approved a stipulation that these appeals be consolidated for purposes of argument, opinion and decision.

The relevant facts are undisputed. On February 21, 1975 a confidential informant known to Officer Solomon Lee, Jr. (hereinafter officer) of the Maui Police Department's vice division spoke to the officer. The informant related to the officer that he went to 297 Moi Place, Kihei, Maui, during the day time, and at that address climbed a high fence surrounding an enclosure adjoining the appellees' residence which permitted him to see two one-foot high marijuana bushes. The fence was constructed of wood planks which overlapped and effectively prevented peeking through the cracks between the boards. We estimate from photographic exhibits in the record that the fence was at least six and a half feet high. That evening the officer accompanied by the informant went to Kihei, Maui, and the informant showed the officer the location of the fence. While the officer did not himself climb the fence, the informant told him that he had to climb the fence to see the marijuana plants behind the wall. The record further contains the admission by the state that the informant had trespassed upon land occupied by appellees in order to climb the fence. A search warrant was obtained and executed the following day.

The identity of the informant remains undisclosed. At the hearing on the motions to suppress, the officer testified that about a year before the instant arrests, he approached the informant for information relative to drugs; the informant inquired of the officer what consideration he would receive in return, to which the officer replied, "There's some money involved if you get some information. . . . We have a fund for cases made." The officer further testified that the informant was paid out of a Law Enforcement Assistance Administration (L.E.A.A.) account. The informant received a receipt for the amount paid to him for information used. He understood that the usual departmental practice was to pay the informants after the suspect was arrested; they would be paid only for precise information leading directly to an arrest or for important leads. The informant herein was not paid for all the information he gave the officer and was not guaranteed payment even for good information. He was paid $30.00 for the information relating to the instant case and had been paid an aggregate of approximately $100.00 over the one year period he had been working for the officer.

At the time appellees were indicted, the informant was on probation. Although he had been gainfully employed sometime during the year prior to the search in controversy, we are unable to determine from the record whether the informant's only source of income in February, 1975 was the money he derived from the L.E.A.A. account. On a prior occasion the officer had orally chastised the informant for supplying information on marijuana cultivation which the informant obtained by trespassing upon property. The information on that occasion was not used and the informant was not paid therefor.

Nothing in the record indicates that the officer specifically directed the informant to search the appellees' premises. The officer testified that the informants rather than the officers initiated action upon a lead as a matter of departmental policy.

Appellant-state has conceded that the evidence obtained by the informant and used by the state in its affidavit for the search warrant is subject to the exclusionary rule if the informant had been a police officer. The appellant-state, however, contends that the evidence complained of should not have been suppressed by the trial court because the fourth amendment protection against unreasonable searches and seizures applies to action attributable to the government. Appellant argues that searches performed by private persons, such as by the instant informant, are not subject to the fourth amendment's proscription. In Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), a private person, agent of defendant's employer, broke into defendant's personally owned desk and seized incriminating evidence. The employer sent the evidence to the Department of Justice officers who did not have knowledge of the taking until the stolen papers were given to them. In refusing to condemn the government's use of the privately seized evidence, the Court stated at 475, 41 S.Ct. at 576 5 that

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly shows that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued.

The Burdeau rationale is still the view of the United States Supreme Court. United States v. Janis, 428 U.S. 433, 455 n. 31, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976) in dictum.

The appellees argue that the informant's search of the area within their residence enclosed by the high fence was unreasonable and in violation of their rights protected by the fourth amendment to the United States Constitution and, additionally, article I, section 5 of the Hawaii State Constitution. Summarily stated, the appellees' position is that searches against which the fourth amendment protects are applicable to the several states by the fourteenth amendment due process clause. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). A subsequent search even under warrant based upon the evidence obtained in the former tainted search is also tainted. State v. Kitashiro, 48 Haw. 204, 397 P.2d 558 (1964); see Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Evidence seized in a tainted search is subject to a motion to suppress if it is to be used in a criminal prosecution. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Pokini, 45 Haw. 295, 367 P.2d 499 (1961).

We stated earlier this term in State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977), that a governmental intrusion into matters in which an individual possesses a "reasonable expectation of privacy" is a search within the meaning of the fourth...

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