81 Hawai'i 29, State v. Navas

• Decision Date: 02 June 1995
• Docket Number: No. 16695,16695
• Parties: 81 Hawai'i 29 STATE of Hawai'i, Plaintiff-Appellant, v. Edward NAVAS and Melanie L. Navas, Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 1101

911 P.2d 1101

81 Hawai'i 29

STATE of Hawai'i, Plaintiff-Appellant, v. Edward NAVAS and Melanie L. Navas, Defendants-Appellees.

No. 16695.

Intermediate Court of Appeals of Hawai'i.

June 2, 1995.

Certiorari Granted June 23, 1995.

The district court decided that there was probable cause and issued a search warrant authorizing the search of defendants' residence. On defendants' motion to suppress, the circuit court decided that the police officer's affidavit did not contain the minimum information necessary to allow the district court to decide that there was probable cause to issue the search warrant. This opinion reverses the circuit court and affirms the district court.

Probable cause to issue a search warrant is established when the facts stated in the affidavit(s) lead an average person of reasonable caution to believe that the following items will be found on the person(s) or at the place(s) to be searched: (1) property that constitutes evidence of the commission of an offense; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing an offense. The Hawai'i Supreme Court advocates a commonsense and realistic, and not a hypertechnical, reading of affidavits in connection with the determination of probable cause. When the district court's decision to issue a search warrant is reviewed on appeal, the duty of the reviewing court is simply to ensure that the district court had a substantial basis for deciding that probable cause existed and great deference should be accorded to the district court's decision that the affidavit(s) established probable cause.

Appeal from the First Circuit Court, Honolulu County (CR. No. 92-0301).

James M. Anderson, Deputy Pros. Atty., City and County of Honolulu, on the briefs, Honolulu, for plaintiff-appellant.

Tae W. Kim, on the brief, Kaneohe, for defendant-appellee Edward Navas.

Amie Thompson, Deputy Public Defender, on the brief, Honolulu, for defendant-appellee Melanie L. Navas.

Before BURNS, C.J., and WATANABE, J., and HUDDY, Circuit Judge in place of ACOBA, J., disqualified.

BURNS, Chief Judge.

The State of Hawai'i (State) appeals the circuit court's December 7, 1992 Order Granting Defendants' Motion to Suppress Evidence seized from the residence of defendants Edward Navas (Edward) and Melanie L. Navas (Melanie), husband and wife. The dispositive question is whether the police officer's affidavit contained the minimum information necessary to allow the district court to decide that there was probable cause to issue the November 1, 1991 Search Warrant authorizing the search of defendants' residence. The district court's answer was yes. On defendants' motion to suppress, the circuit court's answer was no. We reverse the circuit court and affirm the district court. FACTS

The November 1, 1991 Search Warrant was issued on the basis of the following facts stated in the affidavit of Police Officer Bradfield Roberts (Officer Roberts or Roberts).

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 said 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 at 730 California Avenue, 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 Search Warrant and seized crystal methamphetamine, marijuana, and drug paraphernalia from Edward's and Melanie's house. An indictment on February 18, 1991, charged On October 6, 1992, the circuit court held an evidentiary hearing, after which it orally granted the motions to suppress.

[81 Hawai'i 32] Edward 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). On April 22, 1992, Edward and Melanie filed motions to suppress evidence that had been seized by HPD pursuant to the search warrant.

On December 7, 1992, the circuit court entered its Order Granting Defendants' Motion to Suppress Evidence (December 7, 1992 Order) in which it ordered the suppression of all evidence obtained from the search. This December 7, 1992 Order contained findings of fact (FOF) in relevant part as follows:

1. On October 7, 1991, the Narcotics Division of the Honolulu Police received an anonymous tip that Edward Navas, a sergeant at Halawa Correctional Facility, was selling crystal methamphetamine at Stadium Mall, Pacheco Park, and Cornet Store, and that he used a car phone to conduct the sale of drugs.

2. The anonymous informant did not tell the police how the anonymous informant obtained the information or when the alleged drug dealing of Edward Navas had occurred.

3. The only verifiable information provided by the anonymous caller was a home address, home phone number and mobile phone number for Edward Navas.

4. On October 30, 1991, Officer Bradfield Roberts called Edward Navas at his home and told Edward Navas that he was interested in buying crystal methamphetamine.

5. Edward Navas informed Officer Roberts that he was unable to meet with him at that time and that he would call Officer Roberts back in ten minutes.

6. Edward Navas never called Officer Roberts.

7. Officer Roberts called Edward Navas that night and convinced Navas to meet him that night at the First Hawaiian Bank parking lot to sell him crystal methamphetamine.

8. When Officer Roberts met with Edward Navas at the First Hawaiian Bank parking lot, Edward Navas refused to sell any crystal methamphetamine to Officer Roberts and left.

9. At no time did Edward Navas indicate in any way to Officer Roberts that illegal drugs of any kind might be located in his home or car.

10. Based solely upon the information of the anonymous informant and the meeting between Officer Roberts and Edward Navas, the police applied to the Honolulu District Court for a warrant to search the home and car of Defendants Edward Navas and Melanie L. Navas.

11. The affidavit in support of the warrant contained no facts indicating or from which a reasonable inference could be made that Defendants kept contraband or evidence of a crime in any of the places to be...