80 Hawai'i 382, State v. Wallace

Decision Date10 January 1996
Docket NumberNo. 16175,16175
Parties80 Hawai'i 382 STATE of Hawai'i, Plaintiff-Appellee, v. Len Kanoi WALLACE, Defendant-Appellant.
CourtHawaii Supreme Court

Benjamin M. Acob, on the briefs, Wailuku, Maui, for defendant-appellant Len Kanoi Wallace.

Mark R. Simonds, Deputy Prosecuting Attorney, County of Maui, on the briefs, Wailuku, Maui, for plaintiff-appellee State of Hawai'i.

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

LEVINSON, Justice.

The defendant-appellant Len Kanoi Wallace appeals the judgment, guilty conviction, and sentence of the Second Circuit Court, following a bench trial in which he was convicted of promoting a dangerous drug in the first degree in violation of Hawai'i Revised Statutes (HRS) § 712-1241(1)(a)(i) (1993) (Count One) 1, prohibited acts related to drug paraphernalia in violation of HRS § 329-43.5(a) (1993) (Count Two) 2, and promoting a detrimental drug in the second degree in violation of HRS § 712-1248(1)(c) (1993) (Count Three). 3

Wallace's appeal raises two significant issues, the first involving the interrelationships among searches and seizures pursuant to a lawfully issued warrant, the "plain view" doctrine, and the law of "closed" but transparent "containers," and the second addressing the foundational prerequisites to the admissibility of testimony pertaining to scientifically obtained test measurements within the context of ascertaining the sufficiency of the evidence to convict. Specifically, Wallace contends that: (1) the circuit court erred in denying his motion to suppress evidence of cocaine found in his automobile under circumstances in which (a) "a police officer seized tightly sealed clear packets[, containing a] substance ... suspect[ed] to be cocaine, in his search for marijuana, marijuana paraphernalia, and identification items pursuant to a search warrant" (emphasis added), and, (b) "knowing [that] the packets['] contents were not marijuana, law enforcement officers subsequently open[ed] the ... packets for the purpose of testing [their] contents without the authority of a search warrant"; and (2) the "competent evidence" introduced at trial regarding the weights of the seized contraband was insufficient to support his convictions of (a) promoting a dangerous drug in the first degree and (b) promoting a detrimental drug in the second degree.

Although we disagree with contentions 1 and 2(b), we agree with contention 2(a). Accordingly, we affirm Wallace's conviction as to Counts Two and Three. 4 However, for the reasons discussed below, we vacate Wallace's conviction as to Count One and remand the matter to the circuit court for the entry of a judgment of conviction of the lesser included offense of promoting a dangerous drug in the third degree. I. BACKGROUND

The facts material to the present appeal--as reflected in the evidence adduced in the course of Wallace's bench trial--are not in dispute. On April 19, 1991, at approximately 5:30 p.m., three police officers of the Maui Police Department's Vice/Narcotics Division executed a warrant, issued by a district court judge, authorizing them to search Wallace's automobile for: (1) "an unascertainable amount of marijuana plants"; (2) "paraphernalia associated with the use/distribution of marijuana including, but not limited to, marijuana smoking pipes and devices, marijuana cigarette butt clips, cigarette rolling devices, cigarette papers, heat sealed plastic packets, zip-lock type plastic baggies, and books and publications concerning the use/distribution of marijuana"; and (3) "articles of identification"--such as driver's licenses, identification cards, photographs, handwriting samples, credit cards, checkbooks, and checks--that would establish control over the automobile.

The officers discovered the automobile parked on Ukali Street in Wailuku, Maui. Wallace, the sole occupant of the vehicle, was sitting in the driver's seat. The officers approached, served Wallace with the search warrant, informed him of his constitutional rights, and directed him to exit and stand by the vehicle.

Officer Danny Matsuura conducted the actual search of the automobile. He discovered and seized: (1) a heat-sealed clear plastic packet containing suspected marijuana that was lying on the floor fronting the driver's seat; (2) thirteen ziploc-type clear plastic baggies recovered from the glove compartment; (3) two partially burnt marijuana "roaches" recovered from the ash tray; (4) a pack of "Zigzag" cigarette rolling papers found on the console; (5) a brown paper bag containing two ziploc-type baggies of suspected marijuana located on the rear passenger seat; (6) a Hawai'i driver's license and "instruction permit"--both in Wallace's name--removed from the motor vehicle registration holder attached to the sun visor on the driver's side; and (7) a multicolored cloth bag or pouch--inside of which were (a) forty-three heat-sealed clear plastic packets containing a white crystalline powder suspected to be cocaine and (b) a single heat-sealed clear plastic packet containing suspected marijuana--recovered from the driver's seat. An additional marijuana roach and a "paper crutch" made out of a matchbook were discovered and seized from the front pouch of the sweatshirt that Wallace was wearing.

Wallace was placed under arrest and transported to the Wailuku police station. Officer Matsuura drove Wallace's automobile to the police station parking lot to continue the search authorized by the warrant.

During the evening of April 19, 1991, Officer Matsuura opened each of the forty-three packets of suspected cocaine. In accordance with his training, pursuant to which he received certification, he performed a "Becton Dickinson Scott reagent field test" on the substances contained therein in order "to make sure that ... the substance was what [he] thought it was before [he] ... actually charge[d]" Wallace with a particular criminal offense. The test results indicated that "each of the samples of each [of the forty-three] packet[s] that [he] tested contained the drug cocaine." Officer Matsuura then weighed the forty-three packets, i.e., the clear plastic containers together with their contents, with a State of Hawai'i certified gram scale and obtained a gross weight of 56.2 grams. 5

The forty-three packets of cocaine were later forwarded to Donald Chinn, a forensic chemist employed by the Naval Investigative Services Laboratory (NISL), to whose expert qualifications the parties stipulated at trial. Chinn conducted a series of tests, which confirmed the presence of cocaine in each of the packets. In addition, Chinn weighed the contents of the packets with a "top load electronic balance" and obtained a net weight of 40.94 grams--the equivalent of 1.444 ounces.

Also during the evening of April 19, 1991, Officer Matsuura performed a "Becton Dickinson On November 12, 1991, a Maui grand jury returned a three-count indictment charging Wallace with the above-mentioned offenses. On January 27, 1992, Wallace moved to suppress the cocaine on the grounds that, in opening the forty-three heat-sealed clear plastic packets that contained it, Officer Matsuura "either exceeded the scope of the warrant for marijuana or performed a warrantless search of the packets of white powder without justification[.]"

[80 Hawai'i 389] Duquenois Levine reagent test" on--and a microscopic examination of--"all of the recovered suspected marijuana" in order to "make sure that it was in fact marijuana so [that he] could charge" Wallace with the proper offense. The tests confirmed that the seized substances contained marijuana. Utilizing a State of Hawai'i certified gram scale, Officer Matsuura obtained a gross weight of 55.4 grams--the equivalent of 1.954 ounces. Officer Matsuura did not undertake to obtain a net weight because the gross weight substantially exceeded the one-ounce threshold establishing the "aggregate weight" element of the offense of promoting a detrimental drug in the second degree, see supra note 3, and he did not wish to "disturb the other evidence"--i.e., the two heat-sealed clear plastic packets and the two ziploc-type baggies that had contained the marijuana at the time of their seizure from Wallace's vehicle--which was relevant to the offense of prohibited acts related to drug paraphernalia. See supra note 2.

The circuit court conducted a hearing on Wallace's motion on February 13, 1992. Officer Matsuura, the only witness, testified generally to the facts described above. In addition, Officer Matsuura testified that, although the search warrant had authorized the seizure of marijuana, marijuana paraphernalia, and "identification items," he had seized the forty-three heat-sealed clear plastic packets because, based on his training and experience, they contained suspected cocaine. He acknowledged on cross-examination that, as of the time of the initial seizures, it was possible that the white powder was an uncontrolled substance, such as baking powder or inositol. 6 He also conceded that it had been apparent to him at the time that the white powder was not marijuana.

Following Officer Matsuura's testimony, Wallace argued that, although he was not contesting Officer Matsuura's authority to seize the multicolored cloth bag from his vehicle and to search it for marijuana, he had nevertheless had a reasonable expectation of privacy with respect to the contents of the forty-three packets--which did not contain marijuana--discovered therein and that, by opening the packets and testing their contents, the state agents had violated his constitutional right to be free from unreasonable searches. Accordingly, Wallace urged that all evidence relating to the packets' contents should be suppressed as fruit of the poisonous tree. The circuit court, however, was not of like mind and orally denied Wallace's motion.

On February 25, 1992, the circuit...

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