83 Hawai'i 250, State v. Trainor

• Decision Date: 14 October 1996
• Docket Number: No. 17292,17292
• Citation: 925 P.2d 818
• Parties: 83 Hawai'i 250 STATE of Hawai'i, Plaintiff-Appellant, v. John Raymond TRAINOR, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 818

925 P.2d 818

83 Hawai'i 250

STATE of Hawai'i, Plaintiff-Appellant, v. John Raymond TRAINOR, Defendant-Appellee.

No. 17292.

Supreme Court of Hawai'i.

Oct. 14, 1996.

As Amended Oct. 22, 1996.

James H.S. Choi, Deputy Prosecuting Attorney, on the briefs, Honolulu, for Plaintiff-Appellant State of Hawai'i.

Ignacio R. Garcia of Garcia, Garcia, and Rosenberg, on the briefs, Honolulu, for Defendant-Appellee John Raymond Trainor.

Before KLEIN, Acting C.J., LEVINSON, NAKAYAMA and RAMIL, JJ., and CORINNE K.A. WATANABE, Intermediate Court of Appeals Judge, in place of MOON, C.J., recused.

LEVINSON, Justice.

The plaintiff-appellant State of Hawai'i (prosecution) appeals from the circuit court's July 7, 1993 order granting the defendant-appellee John Raymond Trainor's motion to suppress evidence. The prosecution grounds its appeal in two alternative arguments: (1) that the evidence at issue was not the fruit of an unlawful "walk and talk," but was a constitutional investigative encounter based upon reasonable suspicion; and (2) that the encounter resulting in the discovery of the evidence was consensual. Because we hold that Trainor was subjected to an unconstitutional seizure, justified neither by reasonable suspicion nor consent, we affirm.

I. BACKGROUND

Trainor was arrested at the Honolulu International Airport on March 24, 1993 by Officer Linda D'Aquila of the Honolulu Police Department (HPD), following the recovery of a bundle of cocaine that had recently been on Trainor's person. On April 12, 1993, Trainor was charged by complaint with promoting a dangerous drug in the first degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1241(1)(a)(i) (1993). ¹ Trainor filed a "motion to suppress statement" on May 27, 1993, seeking to suppress the cocaine. ²

Officer D'Aquila was the only witness called at the hearing on the motion to suppress. Officer D'Aquila testified that she was a police officer assigned to HPD's Narcotics Vice Division, Airport Detail. She had been a police officer for five years and had been assigned to the Narcotic Vice Division for over a year and a half. She testified that she had received training in identification of narcotics and methods of concealment and trafficking, and had attended drug conferences and a week-long DEA school on the mainland.

Regarding the incident material to this appeal, Officer D'Aquila testified that, on March 24, 1993, she was engaged in walk and talk investigations ³ at the Honolulu International Airport. She was dressed in plain clothes, without visible identifying police insignia, and was carrying a weapon that was not outwardly visible. At 6:45 p.m., she began to observe passengers disembarking TWA Flight No. 31, which had recently arrived from Los Angeles. That particular flight was targeted because Los Angeles was considered a "source city" for drugs. Officer D'Aquila noticed a male--not Trainor--whom she wanted to observe further, so she followed him from the gate to the TWA baggage claim area. She observed the male for about five minutes, but did not approach him. As passengers began to fill up the baggage claim area, she first became aware of Trainor.

When asked what observations she made of Trainor when she first noticed him, Officer D'Aquila testified that: (1) Trainor was wearing baggy clothes that could conceal a "body carry" of drugs; (2) he had only carry-on luggage; (3) his face was "flushed and shinny [sic] looking," as if he were perspiring; (4) he "was walking at a very fast pace"; (5) he "looked like he was looking around" with "a very darting look"; and (6) he was traveling alone. Trainor's clothing and behavior were, according to Officer D'Aquila, consistent with those of drug couriers. However, on cross-examination, she conceded that baggy clothing was a current fashion.

Officer D'Aquila maintained that Trainor's demeanor and physical appearance provided "objective reasons to approach him and ask him about drugs." In this connection, she testified as follows:

[By defense counsel:] Okay. Now, you indicated that you approached Mr. Trainor to talk to him because he looked flushed and he was perspiring shinny [sic]?

[By Trainor:] And walking quickly.

Q. And walking quickly.

A. And the way he looked right before he went out the door, the way he looked to his right and scanned the area.

Q. He scanned--he waked [sic] quickly towards the door, he looked flushed and shinny [sic], and you felt that was objective reasons to approach him and ask him about drugs?

A. Yes, sir.

Officer D'Aquila "guessed" that, of the "several hundred" people whom she had approached in the twenty-month period during which she had conducted "walk and talk" investigations, "maybe about ten percent" had been in possession of illegal drugs. Officer D'Aquila also acknowledged that HPD regarded "any of the major cities" in the United States and all of the west coast cities from which airline flights arrived in Hawai'i as drug source cities, although the Vice Narcotics detail concentrated "mainly ... on the westcoast [sic] cities."

Understandably, much of Officer D'Aquila's testimony focused on the encounter itself. Officer D'Aquila testified that, after Trainor exited the baggage claim area into the street fronting the airport terminal, he ordered a cab at the taxi stand. She then approached Trainor, told him that she was a police officer, and displayed her badge. Accordingly, the taxi dispatcher "just stood to the side" and did not summon the cab. Officer D'Aquila asked Trainor if she could talk to him for a minute. After he said, "Yeah," she told him that she was investigating narcotics trafficking at the airport. Officer D'Aquila represented to Trainor that he was not under arrest and was free to leave at any time. Next, she asked Trainor if he had just arrived on the TWA flight from Los Angeles, to which he replied that he had. She asked whether he was a returning Hawai'i resident or from California. After he replied that he was from California, she asked whether he was on business or vacation; he replied that he "was here for a couple of days to get some sun."

Officer D'Aquila asked Trainor his name--to which Trainor replied, "John"--and then asked "to take a look" at his airline ticket. Trainor stated that the ticket was under another name and that a friend had bought it for him. Trainor removed the ticket from his bag and handed it to her. Officer D'Aquila noticed that the ticket had been issued to "Perry Peterson," was for "a quick turnaround" of two days, and had been paid for in cash. She testified that drug couriers often pay for tickets in cash, travel under assumed names, and "make quick turnaround trips [of] maybe one day or two days." After she inspected the ticket, Officer D'Aquila asked Trainor for identification, and he produced a California driver's license issued to John Raymond Trainor. She viewed the license, noticed that the photograph on it looked like Trainor, and returned both the ticket and the driver's license.

Officer D'Aquila inquired whether Trainor knew anyone in Hawai'i, and he replied that he did not. She asked where he was going to stay, and he answered that "he was going straight to the Roofers' Union" to "look for a job." She noted the inconsistency between the answer and Trainor's previous statement that he was in Hawai'i for a couple of days to get some sun.

Officer D'Aquila repeated that she was investigating narcotic trafficking and asked Trainor whether he was "carrying any kind of marijuana or narcotics" with him. Trainor answered, "No," while, in Officer D'Aquila's opinion, avoiding eye contact with her and looking at the ground. She then asked to check Trainor's bag, which was on the ground next to him, and Trainor acquiesced. Officer D'Aquila knelt down to look through the bag and found nothing of interest.

Aware of Trainor's "baggy clothing and everything and knowing he might possible [sic] have a body carry," Officer D'Aquila formed the belief that Trainor "might be hiding something." Accordingly, she asked Trainor if he had anything around his waist, to which Trainor replied, "No." She asked Trainor whether she could pat him down. Trainor responded, "Okay," and moved his arms slightly away from his body. ⁴ Officer D'Aquila touched the area of Trainor's stomach with an open palm and felt a firm, thick, squarish bundle. Having felt the object, she asked Trainor what it was; Trainor replied that it was food. She then asked to see the object, at which point Trainor "suddenly bolted and ran," leaving his bag behind.

Officer D'Aquila pursued Trainor, repeatedly shouting, "Stop, police." An airport security officer joined her in the chase. The security officer caught and tackled Trainor approximately one hundred yards from the taxi stand. In the course of the chase, Officer D'Aquila observed Trainor remove an object from his waist area and throw it into the foliage. She eventually recovered the object, which was a firmly packed bundle wrapped in cream colored masking tape. After she had obtained a search warrant authorizing her to open the bundle, it was determined to contain cocaine.

The circuit court took the matter under advisement at the conclusion of the hearing, and, on July 7, 1993, filed its decision and order granting Trainor's motion to suppress. The decision and order included the following "discussion" and conclusions of law (COLs):

II. DISCUSSION

....

Like [State v. Quino, 74 Haw. 161, 840 P.2d 358 (1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1849, 123 L.Ed.2d 472 (1993),] the approach here is made for the specific purpose of investigating drug trafficking; the Officer questioned Trainor with questions starting from general ( ["Can I talk to you."] ) and progressing to intrusive (starting at least by [inquiries as to whether Trainor knew anyone in Hawai'i and where he was going to stay] ). The "voluntary conversation" became accusatory in nature, certainly [when Officer...