State v. Ortiz, 8636

• Decision Date: 13 April 1983
• Docket Number: No. 8636,8636
• Citation: 4 Haw.App. 143,662 P.2d 517
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Larry James ORTIZ, Defendant-Appellee.
• Court: Hawaii Court of Appeals

Page 517

662 P.2d 517

4 Haw.App. 143

STATE of Hawaii, Plaintiff-Appellant, v. Larry James ORTIZ, Defendant-Appellee.

No. 8636.

Intermediate Court of Appeals of Hawai'i.

April 13, 1983.

As Amended April 15 and April 22, 1983.

Syllabus by the Court

1. A motion for reconsideration filed by the State within 30 days of an order appealable by the State terminates the running of the time for appeal of that order under Rule 37(c), Hawaii Rules of Penal Procedure, and a new 30-day period for the filing of the State's notice of appeal of that order begins to run upon entry of an order denying the motion for reconsideration.

2. In Hawaii, a person's reasonable expectation of privacy in a knapsack generally entitles him to be free from a warrantless search or seizure of the knapsack, including the feeling or opening thereof.

3. Even if a warrantless investigative stop is justified, a warrantless search or seizure in connection therewith is not permissible unless the specific conduct of the detainee, reliable information, or attendant circumstances make it reasonable to infer that the detainee is armed and presently dangerous, and the search or seizure is strictly limited to that which is minimally necessary for the discovery of weapons which might be used against the officer or others nearby.

4. A search or seizure need not be preceded by an arrest in order to be "incident to" a lawful arrest so long as there is probable cause for an arrest prior to the challenged search or seizure and a formal arrest follows soon thereafter.

5. A warrantless search or seizure incident to a lawful arrest is not permissible in the absence of probable cause to believe that police will find a weapon or evidence of the crime for which the person has been arrested.

6. In Hawaii, the incident to a lawful arrest exception to the warrant requirement allows a police officer to search the arrestee's person or containers that, at the time of the search, are within the arrestee's area of immediate control in order to locate and remove a weapon or evidence of the crime for which the person has been arrested, provided that the officer has reason to believe that such weapon or evidence is on the arrestee's person or in the containers.

7. In Hawaii, the seizure by the police of a gun from an arrestee's knapsack is not valid under the search incident to a lawful arrest exception if the knapsack was in a police officer's exclusive control when the knapsack was unzippered and the gun was seized.

8. By analogy to the plain view rule, the plain feel rule permits the seizure of an item from a container provided that (1) the initial governmental intrusion into the person's reasonable expectation of privacy was justified by a warrant or exception to the warrant requirement; (2) the feel was coincidental; and (3) the police know immediately upon feeling the item that they have weapons, contraband or evidence of a crime before them.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Peter England Roberts, Deputy Public Defender, Honolulu (Alvin T. Sasaki, Deputy Public Defender, Honolulu, on brief), for defendant-appellee.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

Defendant-Appellee Larry James Ortiz ("Ortiz") was indicted under Hawaii Revised Statutes section 134-7(b) for the possession of a firearm by a person convicted of a felony. Plaintiff-Appellant State of Hawaii ("State") appeals from the granting of Ortiz's motion to suppress evidence of the firearm and the dismissal of the case for lack of legal evidence. ¹ We reverse.

On August 12, 1981, at approximately 2:00 a.m., uniformed police officer Brad Bennett was driving in his private, police-subsidized automobile with the customary blue light attached to the roof of the vehicle. While driving in the Wahiawa business area, Bennett saw Ortiz carrying a knapsack in an empty parking lot. Bennett testified that when Ortiz saw him, Ortiz ran towards the side of a building out of his view. After driving into the parking lot, Bennett saw Ortiz seated on the ground with his back to the building.

Bennett approached Ortiz on foot, asked him what he was doing there, and Ortiz responded that he "didn't know." When asked about the knapsack, Ortiz stated that it belonged to him and that nothing was in it. Ortiz then reached out for the knapsack with his right hand, and Bennett immediately grabbed the knapsack from him. While doing so, Bennett felt the butt of a handgun through the thin, canvas-type fabric. Ortiz stood up, and Bennett backed away from him, unzippered the knapsack and saw a handgun and holster therein. Bennett removed the gun from the knapsack, placed Ortiz under arrest, and took him to the police station where the gun was examined and found to be loaded. Subsequent investigation revealed that the revolver had been reported stolen, and that Ortiz was then on parole, was implicated in a couple of pending felony cases, and had previously been convicted of two misdemeanors and four felonies, including robbery in the first degree.

At a suppression hearing, the lower court found that the initial questioning of Ortiz by Bennett was a valid temporary investigative stop short of an arrest; that Bennett had probable cause to believe criminal activity was afoot and, therefore, his subsequent seizure of the knapsack was proper; that no exigent circumstances existed to excuse Bennett from opening the knapsack without a search warrant since it was in the officer's exclusive control at this point; and that although the officer had probable cause to make an arrest upon seizing the knapsack and feeling the gun, the search exceeded the scope of a proper search incident to arrest as per State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974), and violated Ortiz's fourth amendment rights.

A written order granting defendant's motion to suppress evidence was entered on December 14, 1981. On January 5, 1982, the State filed a motion for reconsideration of the court's order. The State's motion was denied by order entered on March 4, 1982. That same day, the court also entered an order granting the defendant's motion to dismiss. ² The State filed a notice of appeal on March 17, 1982.

On appeal, the issues before this court and our answers are:

1. Whether the State's motion for reconsideration terminated the running of the time for appeal under Rule 37(c), Hawaii Rules of Penal Procedure (HRPP). Yes.

2. Whether Ortiz was entitled to a reasonable expectation of privacy in his knapsack. Yes.

3. Whether the warrantless unzippering of Ortiz's knapsack and the seizure of the gun therefrom can be justified under the investigative stop exception to the warrant requirement. No.

4. Whether the warrantless unzippering of Ortiz's knapsack and the seizure of the gun therefrom can be justified under the incident to a lawful arrest exception to the warrant requirement. No.

5. Whether the warrantless unzippering of Ortiz's knapsack and the seizure of the gun can be justified under a "plain feel" rule. Yes.

I.

The first issue, which we raise sua sponte, is whether this court has jurisdiction over the appeal. Rule 37(c), HRPP, generally requires that a notice of appeal be filed by the State within 30 days after entry of the judgment or order appealed from. This rule states:

Time for taking Appeal. The notice of appeal by a defendant shall be filed within 10 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof. If a timely motion in arrest of judgment or for a new trial has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of the order denying the motion. When an appeal by the prosecution is authorized by statute, ³ the notice of appeal shall be filed within 30 days after entry of the judgment or order appealed from. Upon a showing of excusable neglect, the district or circuit court, as the case may be, may, before or after the time has expired with or without motion and notice, extend the time for filing the notice of appeal otherwise allowed to any party for a period not to exceed 30 days from the expiration of the original time prescribed by this section.

(Footnote added.)

In the case at bar, the State's notice of appeal was filed more than 90 days after the entry of the court's order granting defendant's motion to suppress evidence. The State argues, however, that its motion for reconsideration filed 22 days after the entry of the order terminated the running of the 30-day time for appeal under Rule 37(c), and that a new 30-day period in which it could file an appeal began to run after entry of the order denying its motion for reconsideration. Since the notice of appeal was filed 13 days after the March 4, 1982 order denying the motion for reconsideration, the State contends that its notice was timely filed and this court has jurisdiction to hear the appeal.

Although this appears to be an issue of first impression in Hawaii, the United States Supreme Court has held in a similar case that the 30-day period for filing an appeal does not begin to run until the court disposes of a petition for rehearing. In United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964), the government filed a notice of appeal to the Supreme Court within 30 days of the district court's denial of its petition for rehearing of an order dismissing an indictment but more than 30 days after entry of the original judgment appealed from. The Supreme Court held that it had jurisdiction over the case since the notice of appeal was timely filed within the 30-day period prescribed by Rule 11(2) of the Supreme Court Rules. ⁴ The Court pointed to the "well established rule in civil cases" under which the appeal period begins to run from the date of...