80 Hawai'i 1, State v. Richardson

• Decision Date: 10 October 1995
• Docket Number: No. 18277,18277
• Citation: 904 P.2d 886
• Parties: 80 Hawai'i 1 STATE of Hawai'i, Plaintiff-Appellant, v. Martin B. RICHARDSON, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 886

904 P.2d 886

80 Hawai'i 1

STATE of Hawai'i, Plaintiff-Appellant, v. Martin B. RICHARDSON, Defendant-Appellee.

No. 18277.

Supreme Court of Hawai'i.

Oct. 10, 1995.

Mark R. Simonds, Deputy Prosecuting Attorney, on the briefs, Wailuku, Maui, for plaintiff-appellant.

Tom Griswold, on the briefs, Wailuku, Maui, for defendant-appellee.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

Plaintiff-appellant State of Hawai'i (the prosecution) appeals from a circuit court order granting defendant-appellee Martin Richardson's motion to suppress evidence. For the reasons set forth below, we vacate the circuit court's order and remand for further proceedings.

I. BACKGROUND

In January 1994, Maui Police Department (MPD) Officer George Kronoski was contacted by a confidential informant (CI) and told that a man named Bayani Gamit sold crystal methamphetamine at his residence in Wailuku, Maui. The CI also informed Officer Kronoski that Gamit had told him that he could purchase crystal methamphetamine at the Wailuku residence "anytime." The CI further explained that Gamit dealt the crystal methamphetamine between certain specified hours continuing at least until 2:00 a.m., ¹ "as well as during the early evening hours."

During February and March 1994, the CI made three purchases of crystal methamphetamine from Gamit at his Wailuku residence. The purchases were made under the supervision of Officer Kronoski and with money supplied by the MPD.

The prosecution thereafter applied to the district court for a search warrant. The warrant application was supported by an affidavit from Officer Kronoski recounting the information supplied by the CI and the details of the three supervised purchases. The application sought a warrant authorizing the search of Gamit's residence for crystal methamphetamine, United States currency, articles of identification, paraphernalia associated with the use/distribution of crystal methamphetamine, and records relating to the distribution of crystal methamphetamine.

At 1:30 p.m. on March 11, 1994, the district court issued a search warrant authorizing a search of Gamit's residence for the items enumerated in the application. The warrant gave authorization to search "within TEN (10) DAYS from the date hereof, but not between the hours of 2:00 o'clock A.M. and 7:00 A.M."

On the day the search warrant issued, at 10:25 p.m., Officer Kronoski searched Gamit's residence. The residence contained approximately six bedrooms and there were approximately eight people, including Richardson, in the house at the time the search was conducted. Officer Kronoski searched all of the rooms but found contraband in only two of the rooms. In one of the rooms, Officer Kronoski discovered roughly 0.1 grams of cocaine, a glass smoking pipe, and Richardson's State of Hawai'i identification card.

Richardson was thereafter arrested and charged with, inter alia, one count of Promoting a Dangerous Drug in the Third Degree in violation of Hawai'i Revised Statutes (HRS) § 712-1243(1) (1985) and one count of Prohibited Acts Related to Drug Paraphernalia in violation of HRS § 329-43.5(a) (Supp.1992).

On June 8, 1994, Richardson filed a motion to suppress all of the evidence recovered in the March 11, 1994 search, arguing that the "nighttime" ² search of Gamit's residence was not properly authorized. On June 28, 1994, the circuit court entered an order granting Richardson's motion to suppress. Pursuant to HRS § 641-13(7) (Supp.1992), the prosecution timely appealed.

II. DISCUSSION

Rule 41 of the Hawai'i Rules of Penal Procedure (HRPP) regulates the issuance of search warrants. At the time the search warrant in the instant case was issued, HRPP 41(c) provided in pertinent part that "[t]he warrant shall contain a prohibition against execution of the warrant between 10:00 p.m. to 7:00 a.m., ³ unless the judge permits execution during those hours in writing on the warrant."

In its conclusions of law in support of its order granting Richardson's motion to suppress, the circuit court

interpret[ed] the language of Rule 41 to require that the issuing judge specifically authorize, in writing on the search warrant, execution between the hours of 10:00 p.m. and 7:00 a.m. in such a fashion as to ensure that there is no question that the issuing judge knew and understood that the warrant contained authorization for execution between the hours of 10:00 p.m. and 7:00 a.m. and that the authorizing judge had an ascertainable reason for permitting such authorization.

The prosecution contends that the circuit court's interpretation of HRPP Rule 41 was wrong. We agree.

Although it would be good practice for judges authorizing nighttime searches to include a separate paragraph on the face of the warrant specifically acknowledging the deviation from the ordinary prohibition against such searches and setting forth the reasons therefor, HRPP Rule 41(c) only requires that "the judge permit[ ] execution during [nighttime] hours in writing on the warrant." In our view, the writing on the warrant in the instant case that prohibited the search between the hours of 2:00 a.m. and 7:00 a.m., thereby implicitly allowing the search between 10:00 p.m. and 1:59 a.m., satisfied the HRPP Rule 41(c) requirement. In this respect, we agree with the Delaware Supreme Court's analysis in Hope v. State, 570 A.2d 1185 (Del.1990). In Hope, the court held that, despite statutory language requiring that "authority [for the nighttime search] shall be expressly given in the warrant," 570 A.2d at 1187 (quoting 11 Del.C. § 2308) (brackets in original), "there is no requirement that a nighttime search warrant list exigent circumstances or contain a specific finding by the magistrate that probable cause exists to issue the nighttime warrant." Id. at 1188; see also State v. Brock, 294 Or. 15, 20-21, 653 P.2d 543, 546 (1982).

Our holding that the warrant satisfied the "writing" requirement of HRPP Rule 41(c) does not, however, establish that the judge's authorization of the nighttime search complied with the rule in all respects. HRPP Rule 41(c) contains a clear preference for daytime searches. Although judges have the discretion under the rule to authorize nighttime searches, we do not believe that the rule was intended to give judges unfettered discretion in this regard. Because HRPP Rule 41(c) does not expressly set forth the parameters of a judge's discretion, further analysis is warranted.

We begin by recognizing that nighttime searches, particularly of individuals' residences, are generally considered to be anathemas by our society. See State v. Kalai, 56 Haw. 366, 372, 537 P.2d 8, 13 (1975) ("Any official intrusion is necessarily an invasion of privacy, and the sanctity of the home is jealously guarded by the law. Nighttime searches are considered particularly abrasive, even when made pursuant to a judicially issued search warrant."); cf. Gooding v. United States, 416 U.S. 430, 462, 94 S.Ct. 1780, 1796, 40 L.Ed.2d 250 (1974) (Marshall, J., dissenting) ("In my view, there is no expectation of privacy more reasonable and more demanding of constitutional protection than our right to expect that we will be let alone in the privacy of our homes during the night."); Monroe v. Pape, 365 U.S. 167, 210, 81 S.Ct. 473, 496, 5 L.Ed.2d 492 (1961) (Frankfurter, J., dissenting) ("Searches of the dwelling house were the special object of th[e] universal condemnation of official intrusion. Night-time search was the evil in its most obnoxious form."), overruled by Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (overruling holding in Monroe that local governments are not "persons" within the meaning of 42 U.S.C. § 1983); United States v. Smith, 340 F.Supp. 1023, 1029 (D.Conn.1972) ("[I]ntrusion into an occupied home in the middle of the night is plainly a greater intrusion of privacy than entry during the day. A knock at the door is more alarming in the middle of the night and it is no less so because the officer knocking has a search warrant.").

For this reason, many jurisdictions require specific justification for the issuance of a search warrant that authorizes a nighttime search. For instance, in Commonwealth v. Baldwin, 253 Pa.Super. 1, 384 A.2d 945 (1978), the court explained:

The Rule is clear that probable cause is required for the issuance of a search warrant authorizing a daytime or nighttime search. However, due to the greater intrusion upon individual privacy occasioned by a nighttime search, some greater justification than that required for a daytime search must be shown. Put simply, the affidavit for a warrant authorizing a nighttime search must show both probable cause and some reason why the search cannot wait until morning.

253 Pa.Super. at 5, 384 A.2d at 948 (citation omitted). Similarly, in Wiggin v. State, 755 P.2d 115 (Okla.Crim.App.1988), the court stated:

"Searches of the dwelling house" have always been the subject of close scrutiny because "a nighttime search is sensitively related to the reasonableness" element contained in the Fourth Amendment. Thus, many states, including Oklahoma, require the presence of special circumstances before the intrusion of a search may occur at night.

755 P.2d at 116 (citation omitted). See also, e.g., People v. Acevedo, 179 A.D.2d 813, 579 N.Y.S.2d 156, 157 (1992) ("In New York, a nighttime search for the purpose of seizing designated property or kinds of property is authorized only when the application alleges that the warrant: (1) 'cannot be executed between 6:00 A.M. and 9:00 P.M.,' or (2) the property to be seized 'will be removed or destroyed if not seized forthwith[.]' "); State v. Weiss, 155 Vt. 558, 564, 587 A.2d 73, 76 (1990) ("A nighttime search is justified where there is information presented in the search warrant affidavit that, absent a nighttime search, there is a danger that the evidence sought will be disposed of." (...