87 Hawai'i 80, State v. Scott

• Decision Date: 08 January 1998
• Docket Number: No. 18170,18170
• Citation: 951 P.2d 1243
• Parties: 87 Hawai'i 80 STATE of Hawai'i, Petitioner-Appellant, v. Barry SCOTT, Respondent-Appellee
• Court: Hawaii Supreme Court

Page 1243

951 P.2d 1243

87 Hawai'i 80

STATE of Hawai'i, Petitioner-Appellant, v. Barry SCOTT, Respondent-Appellee

No. 18170.

Supreme Court of Hawai'i.

Jan. 8, 1998.

James M. Anderson, Deputy Attorney General, on the brief, for petitioner-appellant.

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

KLEIN, Justice.

We granted Petitioner-Appellant State of Hawaii's (the prosecution) petition for a writ of certiorari to review the decision of the Intermediate Court of Appeals (ICA) in State v. Scott, No. 18170, slip. op. (App. Apr. 30, 1997). In Scott, the prosecution appealed the circuit court's June 9, 1994 Findings of Fact, Conclusions of Law and Order Granting Defendant Barry Scott's Motion to Quash Search Warrant and Suppress Evidence (the June 9, 1994 Order). The ICA affirmed the June 9, 1994 Order, holding, inter alia, that an anticipatory search warrant (ASW) ¹ is constitutionally permissible if the warrant:

(1) is issued by an authorized judge based on probable cause supported by oath or affirmation; (2) is based on a clear showing, supported by oath or affirmation, of law enforcement's need to have the ASW issued before the occurrence of the event that will generate the probable cause; (3) particularly describes the place to be searched and the things to be seized; (4) authorizes a search only upon the occurrence of the event generating the probable Id., slip. op. at 1-2, 13-14. Applying this newly formulated test to the facts of the Scott case, the ICA concluded that "the ASW partially failed to satisfy requirement (1) and completely failed to satisfy requirements (4) and (5)." Id. slip. op. at 2.

[87 Hawai'i 81] cause; (5) authorizes a search only within the probable life of the probable cause; and (6) is executed before the probable cause in fact expires.

Without addressing the constitutionality of an ASW, ² for the reasons set forth below, we hold that they are impermissible under Hawai'i Revised Statutes (HRS) § 803-31 (1993) ³ and Hawai'i Rules of Penal Procedure (HRPP) Rule 41(a). ⁴ Accordingly, we affirm the circuit court's June 9, 1994 Order, albeit for different reasons. We also, pursuant to Rule 2(a) of the Rules of the Intermediate Court of Appeals, direct that an order depublishing the ICA's opinion be filed concurrently with this opinion.

I. RELEVANT FACTS

On December 8, 1992, Honolulu Police Department Officer Linda D'Aquila, while working on a narcotics detail at the Honolulu International Airport, intercepted a Federal Express package addressed to Scott. Following an alert on the package by a narcotic-detecting dog, Officer D'Aquila obtained a warrant to search the package. A field test conducted by the police disclosed that the package contained 17.9 grams of crystal methamphetamine. Based on her belief that probable cause of criminal activity would exist after delivery of the parcel, Officer D'Aquila sought a warrant to search Scott's residence. In the facts and circumstances attached to and incorporated in her affidavit in support of the search warrant, Officer D'Aquila averred:

That a controlled delivery of said parcel is planned to take place on 12-09-92 at 545B Keolu Drive. I will pose as a Federal Express delivery-person and will personally deliver said parcel to the above address.

That after said parcel is accepted at the address, the search warrant will be served after a reasonable amount of time has elapsed.

The district court approved the application for a warrant to search Scott's home between 7:00 a.m. and 10:00 p.m. for the parcel, cocaine and other illegal drugs, drug paraphernalia, records of drug transactions, articles of personal property establishing identity, and currency that might be commingled with narcotics. The warrant was valid for ten days from the date of its issuance.

On December 9, 1992, at approximately 11:20 a.m., Officer D'Aquila posed as a Federal Express delivery-person and delivered the parcel to Scott's residence. About ten minutes after handing the parcel to Scott, Officer D'Aquila returned pretending to need a receipt for the parcel. When Scott opened the door, Officer D'Aquila greeted him with a search warrant and proceeded, with the assistance of several officers, to search Scott's home. The officers found the opened package On August 10, 1993, the prosecution charged Scott with second degree promotion of a dangerous drug, in violation of HRS § 712-1241(1)(b) (1993). ⁵ On February 16, 1994, Scott filed a motion to quash search warrant and suppress all items "seized either on December 8, 1992 at the airport, or during the same December 9, 1992 search of the residence." Scott argued that Officer D'Aquila's affidavit did not give the court sufficient probable cause to issue the warrant. The circuit court agreed, and issued its June 9, 1994 Order quashing the search warrant and suppressing evidence. The State timely filed its appeal, challenging the following findings of fact and conclusions of law:

[87 Hawai'i 82] on the bed and a handwritten note on a white envelope that read: "Please leave Fed Express for B. Scott at door. Thanks." They also found a dirty, yellow baggy in the bedroom closet.

FINDINGS OF FACT

5. None of the facts contained in the affidavit provided any grounds to believe that any of the requested items, other than the parcel, were present in Mr. Scott's home.

6. Therefore, no factual basis or probable cause supported the issuance of a search warrant and authorization to seize such items.

7. The police themselves knowingly introduced contraband into the residence. Sustaining this warrant would risk the use of search warrants as a subterfuge for searches exceeding any factual basis in the affidavits supporting the warrants.

CONCLUSIONS OF LAW

9. At the time Officer D'Aquila applied for a search warrant, police knew only that the parcel was addressed to Mr. Scott at his home residence. Police lacked any facts concerning Mr. Scott's involvement in criminal activity or any facts indicating the presence of any other contraband on the premises.

10. The affidavit indicates that the warrant would be executed within "a reasonable amount of time." The resulting warrant permitted the search to be conducted between 7:00 a.m. and 10:00 p.m., within ten days from the date of its issuance.

11. Although the judicial authorization to search Mr. Scott's residence anticipated the parcel being on the premises, nothing in the affidavit supports the conclusion that, once delivered, the parcel would still be located on the premises at the time the warrant eventually would be executed.

12. Insufficient facts supported probable cause to issue the search warrant in this case.

II. THE ICA'S DECISION

After balancing an individual's constitutional right against "unreasonable government intrusions" ⁶ and the government's duty to "ensure that the health, safety, and welfare of Hawai'i's citizens are protected against the infiltration into our society of contraband drugs," Scott, slip. op. at 10-11, the ICA concluded that ASWs were constitutionally permissible so long as the Warrant:

(1) is issued by an authorized judge based on probable cause supported by oath or affirmation; (2) is based on a clear showing, supported by oath or affirmation, of law enforcement's need to have the ASW issued before the occurrence of the event that will generate the probable cause; (3) particularly describes the place to be searched and the things to be seized; (4) authorizes a search only upon the occurrence of the event generating the probable cause; (5) authorizes a search only within the probable life of the probable cause; and (6) is executed before the probable cause in fact expires.

Id., slip. op. at 13-14.

In response to Scott's argument that Hawai'i law requires a showing of present probable cause, the ICA held that:

[A]s a general proposition the facts put forward to justify issuance of an anticipatory warrant are more likely to establish that probable cause will exist at the time of the search than the typical warrant based solely upon the known prior location of the items to be seized at the place to be searched. As pointed out in People v. Glen:

At best, present possession is only probative of the likelihood of future possession. In cases [involving anticipatory warrants] the certainty of future possession is greater or is often greater than that based on information of past and presumably current possession.

Id. slip. op. at 12-13 (quoting 2 W. La Fave, supra note 1, at 366 (quoting People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 660, 282 N.E.2d 614, 617, amended sub nom People v. Baker, 30 N.Y.2d 754, 333 N.Y.S.2d 179, 284 N.E.2d 161, cert. denied, 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972)). According to the ICA "as long as the evidence creates substantial probability that the seizable property will be on the premises when searched," Glen, 331 N.Y.S.2d at 660, 282 N.E.2d at 617, and the "evidence ... is on a sure course to its destination, as in the mail," United States v. Hale, 784 F.2d 1465, 1468 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986) (citation omitted), present probable cause is not required to issue an ASW. Scott, slip. op. at 13.

However, the ICA invalidated the warrant in Scott because "the ASW partially failed to satisfy requirement (1) and completely failed to satisfy requirements (4) and (5)." Scott, slip. op. at 2.

In the ICA's opinion, that portion of the warrant authorizing the police officers to search for items other than the parcel containing the contraband drugs violated requirement (1) of the test. Id., slip. op. at 17. The ICA reasoned that Officer D'Aquila's supporting affidavit "presented no facts to support a reasonable inference that: (a) any of the items listed in the Warrant, other than the parcel, would be located at Scott's home; (b) Scott used or sold any drugs/contraband; or (c) Scott was involved in any type of criminal behavior." Id.

The ICA also...