83 Hawai'i 124, State v. Kahoonei

• Decision Date: 17 September 1996
• Docket Number: No. 17201,17201
• Citation: 925 P.2d 294
• Parties: 83 Hawai'i 124, 65 USLW 2255 STATE of Hawai'i, Petitioner-Appellee, v. James Gilbert KAHOONEI, Respondent-Appellant.
• Court: Hawaii Supreme Court

Page 294

925 P.2d 294

83 Hawai'i 124, 65 USLW 2255

STATE of Hawai'i, Petitioner-Appellee, v. James Gilbert KAHOONEI, Respondent-Appellant.

No. 17201.

Supreme Court of Hawai'i.

Sept. 17, 1996.

Ray Allen Findlay, on the briefs, Honolulu, for respondent-appellant.

Donn Fudo, Deputy Prosecuting Attorney, on the briefs, Honolulu, for petitioner-appellee.

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

MOON, Chief Justice.

We granted a writ of certiorari to petitioner-appellee State of Hawai'i (the prosecution) to review the decision of the Intermediate Court of Appeals (ICA) in State v. Kahoonei, --- Hawai'i ----, 925 P.2d 379 (App.1995) (Kahoonei I). The prosecution contends that the ICA erroneously concluded that certain evidence should have been suppressed because the defendant's mother was acting as "an agent of the police" when she retrieved the items of evidence. For the reasons discussed below, we affirm the decision of the ICA, but on different grounds.

I. BACKGROUND

On August 30, 1990, in response to a call of a "disturbance and gunshots," at least six police officers arrived at the home of Angeline Kahoonei (Mrs. Kahoonei), mother of the defendant, James Gilbert Kahoonei. Kahoonei rented a room in his mother's home and resided there with his live-in girlfriend, Denise Tamanaha, their two daughters, his brother, and Mrs. Kahoonei.

Upon arrival at the Kahoonei residence, the police officers were met outside the house by Tamanaha, who informed the police that (1) she and Kahoonei had had an argument, (2) the argument was over, and (3) no guns were involved. With Mrs. Kahoonei's permission, the police entered the residence. While inside the residence, a brief scuffle ensued between Kahoonei and one of the officers. Kahoonei was arrested for harrassment and placed in a police car. The police then began interviewing Tamanaha and Mrs. Kahoonei.

During the interview, police officer Benton Akina noticed a bullet hole in the living room floor. After officer Akina informed Sergeant Rosaline Lenchanko of the bullet hole, Sergeant Lenchanko told Mrs. Kahoonei and Tamanaha that a search warrant "could be gotten to search the house" and that a search "would be done anyway." While Sergeant Lenchanko continued to interview Tamanaha in another room, officer Akina turned Mrs. Kahoonei's attention to the bullet hole in the living room floor and remarked that the gun "could have fired in a different direction and someone might have got [sic] hurt." According to officer Akina, Mrs. Kahoonei paused for a moment and then advised Akina that she would check Kahoonei's bedroom for a firearm. Officer Akina, for "safety reasons," followed Mrs. Kahoonei to Kahoonei's bedroom. While officer Akina stood in the doorway and watched, Mrs. Kahoonei walked to a closet in the bedroom and retrieved a revolver, which she handed to officer Akina. Mrs. Kahoonei also retrieved and handed to officer Akina a brown, half-opened revolver case, which contained some ammunition. Officer Akina and Mrs. Kahoonei then walked outside of the house, where Mrs. Kahoonei prepared and signed a written statement.

Kahoonei was subsequently charged with two counts of possession of a firearm and ammunition by a person convicted of certain crimes, in violation of Hawai'i Revised Statutes (HRS) § 134-7(b) and (f) (Supp.1992), ¹ and one count of harassment, in violation of HRS § 711-1106(1)(a) (1985). ² On November 19, 1990, Kahoonei filed a motion to suppress all of the items of evidence recovered by the police with the assistance of his mother, arguing that she was coerced into retrieving the items by the police. At the hearing on the motion, Mrs. Kahoonei testified that she retrieved the revolver because the police had threatened her; however, she admitted that she was not threatened into executing her written statement, which made no mention of her being threatened. Officer Akina testified that no threats were made, although he admitted hearing Sergeant Lenchanko tell Mrs. Kahoonei and Tamanaha that a search warrant "could be gotten to search the house" and that a search "would be done anyway."

As noted by the ICA in Kahoonei I, the motions court did not enter written findings of fact and conclusions of law. However, in accordance with Hawai'i Rules of Penal Procedure (HRPP) Rule 12(e) (1990), ³ the motions court indicated its essential findings on the record, stating:

The Court concludes that [Kahoonei] had a right to privacy in his bedroom area. And Mrs. Kahoonei could neither consent, as owner of the house, to [a] search of the bedroom, nor could she validly waive [Kahoonei's] right to privacy in the bedroom. The recovery of the gun would be illegal, therefore, if the officers had searched the bedroom for the weapon. Based on the facts, the Court concludes that the police did not search the bedroom.

The question, then, is whether Mrs. Kahoonei entered into the bedroom acting under the direction of or under the instruction of the police so that she conducted a search as an agent. This determination is necessary because it is police and state action which is prescribed [sic] by law, not private action. While there is no question that Akina appealed to Mrs. Kahoonei, as to her sense of reason and to her conscience, in advising her of the risk of harm or injury that a handgun could cause, the Court concludes, based on the totality of the evidence and the credibility of the witnesses, that Mrs. Kahoonei entered into her son's room to recover the hangun and that she did so as her personal agent and not on behalf of Akina or the police department.

The motions court then orally denied Kahoonei's motion to suppress.

Kahoonei was subsequently found guilty on all counts following a jury trial. The court sentenced Kahoonei to two ten-year terms of imprisonment and one thirty-day term of imprisonment, to be served concurrently. Kahoonei appealed, and the case was assigned to the ICA.

On May 10, 1995, the ICA: (1) reversed the circuit court's denial of Kahoonei's motion to suppress; (2) vacated the judgment of conviction pertaining to the two counts of illegal firearms possession; and (3) remanded the case for a new trial on those counts. ⁴ The ICA concluded that, "because an affirmative explanation of the discretionary nature of the search warrant-issuing process was never provided to Mrs. Kahoonei by the police, the statement [that a search warrant 'could be gotten to search the house' and that a search 'would be done anyway'] communicated to Mrs. Kahoonei the futility of refusing to cooperate with the police and was a strong motivating factor in causing her to search for the evidence." The ICA, therefore, held that, in retrieving the handgun and ammunition, Mrs. Kahoonei was acting as a government agent, and her actions resulted in an unconstitutional warrantless search. Thereafter, we granted the prosecution's timely application for a writ of certiorari.

II. DISCUSSION

A. The ICA's Decision

Relying on State v. Boynton, 58 Haw. 530, 574 P.2d 1330 (1978), the ICA, in Kahoonei I, determined that whether a private individual acts as a government agent depends on the degree of the government's involvement in the act. In Boynton, an informant supplied the police with information regarding marijuana cultivation at a private residence. In order to obtain the information, the informant trespassed by scaling a wooden fence approximately six and a half feet high. In exchange for the information, the informant received $30.00 from the police. The trial court granted the defendant's motion to suppress the evidence seized by the police in a subsequent search, based upon a warrant relying on the informant's information.

On appeal, the prosecution conceded that, if the evidence had been obtained by a government agent, it would have been subject to the exclusionary rule. However, because the evidence was obtained by a private person, the prosecution argued that the fourth amendment's proscription against unreasonable searches and seizures was inapplicable. We stated in Boynton that our task was "to determine whether the informer's search of the enclosed area was a private search or a governmental search." Id. at 536, 574 P.2d at 1334. We explained that, when a private individual conducts a search initiated by the government and under the government's guidance, it is not a private search. Id. (citations omitted); see also State v. Furuyama, 64 Haw. 109, 120, 637 P.2d 1095, 1102 (1981) (holding that, where individuals were not bystanders but active members of a police-directed effort, their deed was not a private action). We also made clear in Boynton that, where private individuals "act as agents of the police ... the full panoply of constitutional provisions and curative measures applies." Boynton, 58 Haw. at 536, 574 P.2d at 1334 (citation omitted); Furuyama, 64 Haw. at 120, 637 P.2d at 1102-03.

Although we recognized in Boynton that a definitive rule regarding what elements constitute an agency relationship between a private informant and the police would be difficult to fashion, we delineated several factors to be considered, that is, whether the private individual: (1) was actively recruited; (2) was directed by a government agent; (3) acted for a private purpose; and (4) received any payment for his or her services. Id. at 537-38, 574 P.2d at 1335. Because the informant in Boynton was involved in a "symbiotic relationship" with the police, id. at 537, 574 P.2d at 1335, having been actively recruited by the police and paid for the information, we held that the informant was a government agent for fourth amendment purposes. Id. at 540, 574 P.2d at 1336. Thus, this court affirmed the suppression of the evidence, holding that "we cannot condone the use by the state of information illegally obtained by a semi-professional police informant whose sole purpose in this kind of endeavor is to gather data to be used in criminal prosecutions." Boynton...