78 Hawai'i 98, State v. Bolosan

• Decision Date: 16 May 1994
• Docket Number: No. 15993,15993
• Citation: 890 P.2d 685
• Parties: 78 Hawai'i 98 STATE of Hawai'i, Plaintiff-Appellee, v. Aaron R. BOLOSAN, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 685

890 P.2d 685

78 Hawai'i 98

STATE of Hawai'i, Plaintiff-Appellee, v. Aaron R. BOLOSAN, Defendant-Appellant.

No. 15993.

Intermediate Court of Appeals of Hawai'i.

May 16, 1994.

Certiorari Granted (1 application) June 6, 1994.

Certiorari Denied (1 application) June 6, 1994.

[78 Hawai'i 99] Syllabus by the Court

1. The legitimacy of an automobile stop is dependent on whether or not it is found to be reasonable, upon balancing the public interest it promotes and the individual's right to be free from arbitrary interference by government officials.

2. The State has a legitimate and substantial interest in promoting the safe use of its streets and highways and has the unquestioned authority to stop vehicles in cases of observed traffic or equipment violations.

3. Proof that a person driving a vehicle was deliberately drawing public attention to the vehicle's quality for swiftness is required to establish the offense of "exhibition of speed or acceleration" under HRS § 291C-103(a). Evidence that a person revved the

[78 Hawai'i 100] engine of a vehicle, caused heavy exhaust smoke to be emitted while stopped at a traffic light, and thereafter proceeded across the intersection when the traffic light turned green is insufficient to establish the offense or to justify a police investigative stop of the vehicle.

3. Where a police officer, measured by an objective standard, is justified in stopping a defendant to investigate a potential violation, the police officer's articulation of an incorrect basis for the investigative stop does not render the stop invalid.

4. A traffic violation in and of itself does not supply reasonable articulable facts to support an order to exit the vehicle.

5. A police officer is not authorized to order a driver out of a vehicle after a traffic stop unless the officer has at least a reasonable basis to believe, based on specific articulable facts, that a crime has been committed, or that the driver is armed and dangerous.

6. In reviewing the validity of an automobile exit order on appeal, the test is whether the facts known to the police officer, judged against an objective standard, would warrant a person of reasonable caution to believe that criminal activity was afoot or that the perpetrator was then armed and dangerous, and that the action taken was appropriate.

7. Pursuant to HRS § 286-10, a police officer who has grounds to arrest an individual for driving without a license is required to issue a summons or citation in lieu of physically taking the individual to the police station or court. Therefore, the police officer is not authorized to order the individual out of his or her vehicle, physically arrest the individual, and search him incident thereto.

8. Pursuant to HRS § 431:10C-117(a)(1), a police officer who has grounds to arrest an individual for driving without no-fault insurance is required to issue a summons or citation in lieu of physically taking the individual to the police station or court. Therefore, the police officer is not authorized to order the individual out of his or her vehicle, physically arrest the individual, and search him incident thereto.

9. A police officer's subjective and unparticularized statement that he "feared for his safety" upon sighting a closed pocketknife on the front passenger seat of defendant's car was insufficient to justify an exit order or a pat search of a defendant's person. A higher level of justification is required to permit such an intrusion into a defendant's personal liberty.

10. Under HRS § 431:10C-117(a)(2), as amended by Act 167, 1990 Haw.Sess.Laws 328, a borrower of a vehicle who holds a reasonable belief that the vehicle is covered by a no-fault insurance policy as required by law has no duty to affirmatively ascertain coverage. However, the amendment, which became effective on June 19, 1990, does not apply retroactively.

11. Pursuant to HRS § 1-3 (1985), no law has any retroactive operation, unless otherwise expressed or obviously intended.

Deborah Kim, Deputy Public Defender (Dale K. Mattice, Deputy Public Defender, on the briefs), Honolulu, for defendant-appellant.

Lisa Itomura, Deputy Prosecuting Atty., City and County of Honolulu, for plaintiff-appellee.

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

WATANABE, Judge.

In this appeal, Defendant-Appellant Aaron R. Bolosan (Defendant) alleges that several reversible errors were committed by the court below in convicting him of: Promoting a Dangerous Drug in the Third Degree, a violation of Hawai'i Revised Statutes (HRS) § 712-1243 (1985); Unlawful Use of Drug Paraphernalia, a violation of HRS § 329-43.5(a) (Supp.1992); Driving Without a License, a violation of HRS § 286-102 (1985); and Driving Without No-Fault Insurance, a violation of HRS § 431:10C-104 (1987 Sp. Pamphlet and Supp.1992).

First, Defendant argues that the motions court improperly denied his Motion to Suppress Evidence because: (1) there were no grounds for the police officer to have initially stopped Defendant; (2) the police illegally ordered Defendant out of his car; (3) the police officer's pat-down search of Defendant for weapons was illegal; and (4) even if the pat-down search were justified, the permissible scope of the search was improperly exceeded.

Second, Defendant claims that the trial court erred when it convicted him of Driving Without No-Fault Insurance, since the court did not find that he acted intentionally, knowingly, or recklessly, a requisite element of the offense.

Finally, Defendant argues that there was insufficient evidence to support the trial court's finding that Defendant should have been aware that the owner of the car he was driving did not have no-fault insurance.

We affirm Defendant's conviction for driving without a license. However, because we conclude that the trial court applied the wrong state-of-mind element in convicting Defendant of driving without no-fault insurance, we vacate Defendant's conviction for said offense and remand for a new trial on this count. We also reverse Defendant's convictions for promoting a dangerous drug and unlawful use of drug paraphernalia, since our review of the record reveals that the evidence which led to these convictions was seized by police after they unlawfully ordered Defendant to exit his vehicle.

BACKGROUND

On March 3, 1989, at about 11:20 p.m., Honolulu Police Officer Gerry Asato was in a car at the corner of Gulick Avenue and Pua'ala Lane with Recruit Officer Derrick Martin, when he heard the engine of Defendant's vehicle revving loudly and saw the vehicle emitting a plume of heavy exhaust smoke. At the time, Defendant was stopped at a red light two "really small" blocks away from the officers, at the intersection of Gulick Avenue and School Street, mauka (mountain) bound. State's Exhibit 2, Transcript (Tr.) 6/18/91 at 6, 11, and 12. When the traffic light turned green, Defendant's vehicle proceeded across the intersection toward the location of the officers' car. Defendant neither screeched the tires of his car, nor traveled at a fast rate of speed. Tr. 6/18/91 at 13. The police, however, believing that Defendant's conduct amounted to "exhibition of speed or acceleration" in violation of HRS § 291C-103 (1985), stopped, but did not arrest or cite, Defendant for said offense. Id. at 6.

When Officer Asato approached Defendant's car and asked Defendant, its sole occupant, to produce his driver's license and no-fault insurance card, Defendant was unable to do so. Officer Asato then spotted a closed pocketknife on the front passenger seat of the car, within Defendant's reach. According to Officer Asato, the knife caused him to fear for his safety; he therefore immediately ordered Defendant out of the car for a "pat-down search."

While conducting the pat-down search, Officer Asato "felt [a] round bulblike object in [Defendant's] ... right front pants pocket," which he knew was "a bong[,] ... a glass pipe used to smoke crystal meth or other drugs." Id. at 7. Officer Asato reached into Defendant's pocket and recovered the bong. He also extracted from Defendant's pocket a plain white folded envelope containing a "gritty substance," which he suspected was crystal methamphetamine. Id. at 8. His suspicions were confirmed when the contents of the envelope were later analyzed pursuant to a search warrant.

After discovering the bong and the envelope, Officer Asato arrested Defendant for Promoting Dangerous Drugs in the Third Degree, Unlawful Use of Drug Paraphernalia, Driving Without a License, and Driving Without No-Fault Insurance. Officer Asato then ran a driver's license check on Defendant, which revealed that Defendant had an outstanding traffic warrant; Defendant was arrested for that charge as well.

Defendant was thereafter indicted, tried, convicted, and sentenced for all offenses except the traffic warrant offense. ¹ This timely appeal followed. DISCUSSION

I. Validity of the Initial Stop

The threshold issue we must address is whether the initial stop of Defendant was constitutional.

The legitimacy of an automobile stop "is dependent on whether or not it is found to be reasonable, upon balancing the public interest it promotes and the individual's right to be free from arbitrary interference by government officials." State v. Powell, 61 Haw. 316, 320, 603 P.2d 143, 147 (1979). The Hawai'i Supreme Court has recognized that the State "has a legitimate and substantial interest in promoting the safe use of its streets and highways[,]" and has the unquestioned "authority to stop vehicles in cases of observed traffic or equipment violations." Id. (emphasis in original).

In the instant case, Defendant was initially stopped because the police observed what they believed was an HRS § 291C-103 violation. We conclude that HRS § 291C-103 did not provide an adequate basis for the stop; however, other grounds existed to justify the stop.

At the time of Defendant's stop, HRS § 291C-103 ² provided in relevant...