Kanekoa v. City and County of Honolulu

• Decision Date: 29 June 1989
• Docket Number: Nos. 87-2636,87-2844,s. 87-2636
• Citation: 879 F.2d 607
• Parties: Charles K. KANEKOA; Warren E. Kanekoa, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU; Douglas G. Gibb, Defendants-Appellees, and State of Hawaii, Defendant/Intervenor-Appellee. Damien MELEMAI, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Douglas G. Gibb, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 607

879 F.2d 607

58 USLW 2071

Charles K. KANEKOA; Warren E. Kanekoa, Plaintiffs-Appellants, v. CITY AND COUNTY OF HONOLULU; Douglas G. Gibb, Defendants-Appellees, and State of Hawaii, Defendant/Intervenor-Appellee.

Damien MELEMAI, Plaintiff-Appellant, v. CITY AND COUNTY OF HONOLULU; Douglas G. Gibb, Defendants-Appellees.

Nos. 87-2636, 87-2844.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1988.

Decided June 29, 1989.

Eric A. Seitz, Lowenthal, August, Graham & Seitz, Honolulu, Haw., for plaintiffs-appellants.

Michael Dorn, Deputy Corp. Counsel, City and County of Honolulu, Honolulu, Haw., for defendants-appellees.

Steven S. Michaels, Deputy Atty. Gen., State of Haw., for defendant/intervenor-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before WALLACE, TANG and NELSON, Circuit Judges.

WALLACE, Circuit Judge:

In this consolidated appeal, Charles Kanekoa, Warren Kanekoa (the Kanekoas), and Damien Melemai challenge the judgments in their actions under 42 U.S.C. Sec. 1983 against the city and county of Honolulu (Honolulu) for violating their fourth amendment rights to a prompt probable cause hearing. The Kanekoas and Melemai contend that the determinations of no constitutional violation were erroneous as a matter of law. The Kanekoas further argue that the district judge erred in (1) instructing the jury, (2) admitting evidence of the circumstances surrounding their arrests, and (3) refusing to ask prospective jurors requested voir dire questions. The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1343. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

Early in the morning of August 1, 1984, two women complained to Honolulu police officer Sanderson that two men driving a green car were impersonating police officers. The women had recorded the license plate number of the car. While Officer Sanderson was acquiring further information from the women, he was alerted to an assault in progress at a nearby intersection. When Officer Sanderson arrived at the scene of the assault, he observed two men standing next to a green car which had the same license plate number given by the two women moments earlier. He also saw a third male lying on the sidewalk wincing in pain. Officer Sanderson arrested the two men. Warren Kanekoa was arrested on charges of impersonating a police officer, disorderly conduct, and assault; Charles Kanekoa was arrested on charges of impersonating a police officer and disorderly conduct. The Kanekoas do not contest that the police had probable cause to arrest them. Officer Sanderson took the Kanekoas to the police station, arriving at 4:47 a.m.

At the station, the Kanekoas' property was inventoried, and they were fingerprinted, photographed, and given intoxilyzer tests. Warren and Charles Kanekoa registered blood alcohol levels of 0.14 and 0.08, respectively. The intoxilyzer reports were completed at 5:30 a.m. and approved at 7:00 a.m. Officer Sanderson's report was completed at 8:30 a.m.

If the Kanekoas had not been intoxicated, they would have been interviewed by the police. Honolulu Police Department rules prohibit the police from interviewing suspects having a blood alcohol level greater than 0.05. Therefore, the Kanekoas were placed in custody until sober enough to be interviewed. During this time, the police continued to investigate the case. Detectives reviewed the Kanekoas' criminal history reports and attempted to interview victims and witnesses.

At 11:33 a.m., the police interviewed Warren Kanekoa. The interview lasted approximately 15 minutes, followed by an off-the-record discussion lasting about one hour. The police interviewed Charles Kanekoa at 1:17 p.m. The interview lasted approximately 15 minutes, followed by an off-the-record discussion lasting about 45 minutes. In both instances, the off-the-record discussion concerned the suspects' father, who was a member of the Honolulu police department.

The Kanekoas were released at about 2:40 p.m. and all charges were dropped. If the police had decided to pursue the case, the Kanekoas would have been taken before a neutral magistrate for a probable cause hearing.

Melemai was arrested on May 21, 1985, on charges of burglary. He was identified at the scene of the burglary by a witness. Melemai does not contest that the police had probable cause to arrest him. Melemai arrived at the police station at approximately 5:40 p.m. Pursuant to the same procedures used in the Kanekoas' arrests, Melemai was given an intoxilyzer test. The test result was available at 8:00 p.m. and indicated a blood alcohol level of 0.14. Like the Kanekoas, Melemai was not interviewed immediately, but placed in custody until sober. In the interim, detectives continued to gather evidence, interview witnesses, and inspect the scene of the crime. The detective in charge of the investigation believed that a late-night or early-morning interview with Melemai would be inappropriate, and thus delayed the interview until morning. On the following day, the police interviewed Melemai from 11:15 a.m. to 12:30 p.m. Melemai was released at 1:30 p.m. and all charges were dropped. As with the Kanekoas, if the police had decided to pursue Melemai's case, he would have been taken before a neutral magistrate for a probable cause hearing.

In a consolidated pretrial hearing, the district judge held that Honolulu was not entitled to qualified immunity as a defense to the actions. The judge found that Honolulu had maintained an official policy of violating suspects' fourth amendment right to a prompt probable cause hearing. The judge refused to find Honolulu liable, however, reasoning that a fact finder must determine whether the police applied this practice to the Kanekoas and Melemai. On this factual issue, a jury found against the Kanekoas and a judge found against Melemai.

II

The Kanekoas and Melemai argue that their detentions violated the fourth amendment as a matter of law under Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (Gerstein ). We review this question independently. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (McConney ), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

In Gerstein, the Supreme Court held that the fourth amendment requires a judicial determination of probable cause as a "condition for any significant pretrial restraint of liberty." 420 U.S. at 125, 95 S.Ct. at 868. As the Court explained,

a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of a crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships.... When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty.

Id. at 113-14, 95 S.Ct. at 863 (emphasis added). A suspect arrested without a warrant, therefore, must be afforded a probable cause hearing before a neutral and detached magistrate "promptly after arrest." Id. at 125, 95 S.Ct. at 868. The Kanekoas and Melemai argue that their detentions of nine hours and nineteen hours respectively were not "brief period[s] of detention" and therefore constituted a per se violation of Gerstein.

The Supreme Court has not established a specific time period in which a suspect must be afforded a probable cause hearing. See id. at 123-25, 95 S.Ct. at 867-69; Schall v. Martin, 467 U.S. 253, 275, 104 S.Ct. 2403, 2415, 81 L.Ed.2d 207 (1984). We have rejected any per se rules and have held that the time period required by the fourth amendment depends on the circumstances of each case. See Bernard v. City of Palo Alto, 699 F.2d 1023, 1025 (9th Cir.1983). We have observed that "[d]etention for less than 24 hours without a probable cause hearing would violate the Constitution in a particular case if the circumstances were such that the administrative steps leading to a magistrate's determination reasonably could have been completed in less than 24 hours." Id. Thus, whether the detention of the Kanekoas and Melemai violated the fourth amendment depends on the circumstances of their detention. Their request for a per se rule of unconstitutional delay is rejected.

The Kanekoas and Melemai next argue that under the circumstances their detention was unreasonable. They suggest that any delay beyond the period required for minimum booking procedures presumptively violates the fourth amendment. Although their booking procedures were completed within an hour after arrival at the police station, they remained in custody so that the police could interview them. They assert that Honolulu's procedure of interviewing suspects prior to a probable cause hearing is not one of the "administrative steps incident to arrest" which justifies detention under Gerstein. Until now, our circuit has not been called upon to decide this issue.

Gerstein itself does not specify what constitutes "administrative steps incident to arrest." We believe, however, that this very phrase suggests a somewhat flexible approach to what qualifies as an administrative step. Significantly, the Court did not speak of administrative steps necessary to an arrest, but rather...