81 Hawai'i 113, State v. Navas

• Decision Date: 26 February 1996
• Docket Number: No. 16695,16695
• Citation: 81 Hawaii 113,913 P.2d 39
• Parties: 81 Hawai'i 113 STATE of Hawai'i, Respondent-Appellee, v. Melanie L. NAVAS, Petitioner-Appellant.
• Court: Hawaii Supreme Court

Page 39

913 P.2d 39

81 Hawai'i 113

STATE of Hawai'i, Respondent-Appellee, v. Melanie L. NAVAS, Petitioner-Appellant.

No. 16695.

Supreme Court of Hawai'i.

Feb. 26, 1996.

As Amended March 19, 1996.

Certiorari to the Intermediate Court of Appeals, City and County of Honolulu (CR. No. 92-0301).

Theodore Y.H. Chinn, Deputy Public Defender, on the briefs, Honolulu, for petitioner-appellant, on the writ.

James M. Anderson, Deputy Prosecuting Attorney, on the briefs, Honolulu, for respondent-appellee, on the brief.

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

RAMIL, Justice.

We granted a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in State v. Navas, 81 Hawai'i 29, 911 P.2d 1101 (App.1995) [hereinafter Navas I ], specifically to address the proper standard of review to apply when reviewing a magistrate's ¹ determination of probable cause to issue a search warrant.

I. FACTS

The following are the facts as provided in Navas I.

On October 7, 1991, the Narcotics Division of the Honolulu Police Department (HPD) received a tip from an anonymous caller that Edward, who lived at 151 Circle Drive, Wahiawa, and worked as a prison guard with the rank of sergeant at the Halawa Correctional Facility (HCF), was selling crystal methamphetamine at the Stadium Mall, Pacheco Park, and the Wahiawa Cornet Store. The anonymous caller stated Edward's residential and car telephone numbers and alleged that Edward conducted his crystal methamphetamine business through the car telephone. By October 30, 1991, HPD had verified that Edward lived at 151 Circle Drive, was employed at the HCF with the rank of sergeant, and his telephone numbers were unlisted. HPD also learned that Edward had been arrested a total of seven times during the period from 1971 through 1989: once in 1971 for a narcotics offense, once for Abuse of a Family Member, three times for traffic offenses, and twice for contempt of court.

On October 30, 1991, at approximately 3:00 p.m., Roberts telephoned Edward's residence. Roberts asked to speak to "Ed Navas." The adult male who answered affirmed that he was "Ed." Roberts identified himself as "Joe." Roberts inquired about buying "ice," a vernacular for crystal methamphetamine. In response, Edward asked how Roberts knew him. Roberts explained that he met Edward through a friend named "Clarence" when Edward sold them "ice" by the Wahiawa Cornet Store. Edward then asked Roberts how much "ice" he wanted. Roberts replied $100 worth. Edward asked that "it would be no problem," and suggested that they "meet someplace and [Edward] would take care of [Roberts]." Roberts informed Edward that he worked at the Navy Commissary cafeteria as a cook and that he was not able to leave but would check with his boss. Roberts gave Edward the HPD covert telephone number, and Edward said he would call back in ten minutes.

At approximately 3:15 p.m., Edward called back and Roberts informed him that he could not leave work until 9:00 p.m. Roberts suggested that his "girlfriend" could meet with Edward to "pick up the 'ice.' " Edward agreed and said that he had to go to town first and would try to call back at about 5:30 p.m. However, Edward did not call.

At approximately 9:00 p.m., Roberts called Edward and reminded him that he had $100 and wanted to buy some "ice." Edward suggested they meet in the First Hawaiian Bank parking lot in Wahiawa. Edward asked what would be a good time to meet. When Roberts responded "9:30 p.m.," Edward agreed. The police observed Edward drive directly from his house to the First Hawaiian Bank parking lot.

At approximately 9:35 p.m., Roberts pulled into the First Hawaiian Bank parking lot. He saw a red 1977 Buick, bearing the license plate number AEJ-239, and was aware that Edward was its registered owner. The male sitting in the red Buick matched Edward's physical description. Upon greeting each other, Roberts recognized the voice as the one he had heard on the telephone during their previous conversations. Roberts observed a mobile telephone mounted on the center console of the red Buick. After a lengthy discussion on how Roberts knew Edward, Edward said that "he didn't deal with strangers and he did not know what [Roberts] was talking about." When asked why he had come to meet Roberts, Edward responded that "he just wanted to check [Roberts] out." Edward drove out of the lot at approximately 9:40 p.m. Edward did not meet with anyone before he arrived home. He used an indirect route to get there, utilizing side streets and routes through densely populated areas.

The next day, Officer Roberts viewed a photographic line-up and positively identified Edward as the suspect in the investigation.

On November 1, 1991, based on Officer Roberts' affidavit, the district court issued a search warrant for the residence owned by Edward and Melanie, and the red Buick owned by Edward. HPD executed the the Search Warrant and seized crystal methamphetamine, marijuana, and drug paraphernalia from Edward's and Melanie's house. An indictment on February 18, 1991, charged Edward [and Melanie] with Count I, Promoting a Dangerous Drug in the Third Degree, Hawai'i Revised Statutes (HRS) § 712-1243 (1985); Count II, Unlawful Use of Drug Paraphernalia, HRS § 329-43.5(a) (Supp.1992); and Count III, Promoting a Detrimental Drug in the Third Degree, HRS § 712-1249 (1985).

Navas I, at 31-32, 911 P.2d at 1103-04 (brackets added).

II. DISCUSSION

Under the safeguards of the fourth amendment to the United States Constitution ² and article I, section 7 of the Hawai'i Constitution, ³ all arrests and searches must be based upon probable cause. ⁴

Probable cause exists when the facts and circumstances within one's knowledge and of which one has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been committed. See, e.g., State v. Jerome, 69 Haw. 132, 134, 736 P.2d 438, 439 (1987). Direct evidence, however, is not necessary for a probable cause determination by the magistrate. See, e.g., United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986); and United States v. Wiecking, 757 F.2d 969, 971 (9th Cir.1983). The issuance of a search warrant is prohibited except upon a finding of probable cause supported by oath or affirmation.

When the magistrate's probable cause determination is appealed, the appellate court must, of course, determine the proper standard of review. Because a disagreement exists among the appellate courts throughout the country as to the appropriate standard of review, we set forth the proper standard for Hawai'i appellate courts to follow when reviewing a magistrate's determination of probable cause to issue a search warrant. Preliminarily, however, it appears both necessary and appropriate that we discuss the standards of review presently used by other jurisdictions.

A. Standards of Review Used in Other Jurisdictions

The landmark Supreme Court decision, Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), addressed both the definition of probable cause to issue a search warrant ⁵ and the proper appellate standard of review for a magistrate's probable cause determination. Regarding the appellate court's proper role in evaluating a magistrate's determination of probable cause in warrant cases, the Court stated that "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)) (emphasis added). Furthermore, the Court declared that, in warrant cases, "[a] magistrate's 'determination of probable cause should be paid great deference by reviewing courts,' " and should not be reviewed de novo. Id. at 236, 103 S.Ct. at 2331 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969)) (emphasis added). See also State v. Jones, 706 P.2d 317 (Alaska 1985); State v. Decano, 60 Haw. 205, 213, 588 P.2d 909, 915 (1978); State v. Kaukani, 59 Haw. 120, 125, 577 P.2d 335, 339 (1978).

Gates rejected de novo review because " '[a] grudging or negative attitude by reviewing courts toward warrants' [will tend to discourage police officers]" and " 'courts should not invalidate warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner.' " Kocoras, supra, at 1430 (citing Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting United States v. Ventresca, 380 U.S. 102, 108-09, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965))) (brackets in original). See also State v. Sherlock, 70 Haw. 271, 275, 768 P.2d 1290, 1293 (1989). The Supreme Court further explained:

If the affidavits submitted by police officers are subjected to the type of scrutiny some courts have deemed appropriate, police might well resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search."

Gates, 462 U.S. at 236, 103 S.Ct. at 2331 (quoting United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977)).

Appellate courts have interpreted Gates differently. Some courts apply the "clear error" standard to review probable cause to search in both warrant and warrantless cases, while other courts apply the "substantial basis" standard of review without equating the standard with clear error. Other courts, on the other hand, have implied that probable cause determinations are to be reviewed de...