Nakamoto v. Fasi

• Decision Date: 06 November 1981
• Docket Number: No. 6944,6944
• Citation: 635 P.2d 946,64 Haw. 17
• Parties: Susan NAKAMOTO, Plaintiff-Appellant, and Charles Speake, Plaintiff, v. Frank F. FASI, Hazel Inouye, and City and County of Honolulu, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 946

635 P.2d 946

64 Haw. 17

Susan NAKAMOTO, Plaintiff-Appellant, and Charles Speake, Plaintiff, v. Frank F. FASI, Hazel Inouye, and City and County of Honolulu, Defendants-Appellees.

No. 6944.

Supreme Court of Hawai'i.

Nov. 6, 1981.

Syllabus by the Court

1. The constitutional proscription that the person and effects of an individual may not be the object of warrantless and unreasonable searches and seizures draws no distinction between an individual suspected of criminal activity and one who is not.

2. A warrantless search based on valid consent is not constitutionally proscribed.

3. Consent to a warrantless search must be "voluntary" in order to be valid, and "voluntary" means "uncoerced."

4. When it is clear that a search will be conducted regardless of the consent of the person searched, there can be no voluntary waiver of that person's right to be free from unreasonable searches and seizures.

5. The right to continue the exercise of a privilege granted by the state cannot be made to depend upon the grantee's submission to a condition prescribed by the state which is hostile to the provisions of the Federal and State Constitutions.

6. Constitutional safeguards were designed to protect the individual from arbitrary, oppressive, and harassing conduct on the part of government officials.

7. While constitutional provisions were never intended to prevent government from adopting reasonable measures to protect its citizenry, interference with an individual's liberty and privacy, if justified, must be only of such degree as is minimally necessary to accomplish the governmental objective.

8. The degree to which a citizen may be required to relinquish a constitutional right, in the interest of public safety, must be commensurate with the extent and nature of the threatened harm upon which the government relies to justify the infringement.

9. While government is entitled to take necessary steps to prevent the misuse of its premises, and to provide protection for those whom it invites to its facilities, it may not impose conditions for their use which are so unreasonable as to be violative of constitutional provisions.

Evan R. Shirley, Honolulu, for plaintiff-appellant.

Wesley F. Fong, Deputy Corp. Counsel, Honolulu, for defendants-appellees.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

MENOR, Justice.

This is an appeal from the circuit court's denial of a permanent injunction which was sought by the plaintiffs to prohibit the defendants from enforcing a City policy requiring rock concert promoters at the City-owned Neal Blaisdell Center to conduct an inspection of their patrons for bottles and cans before allowing them to enter the arena. As a necessary predicate to their request for an injunction, the plaintiffs had prayed for a declaratory judgment invalidating the City-imposed inspection procedure. Plaintiff Susan Nakamoto is the only appellant in this appeal.

A rock concert promoter's rental agreement with the City requires him to hire private security guards to maintain order and provide security against unruly, disruptive and destructive patrons. In addition, the City requires the promoter to have his security guards conduct inspections of patrons for the purpose of preventing the introduction of bottles and cans into the arena. ¹ These inspections were initiated at the end of 1973 as a result of the City's growing concern over crowd behavior at rock concerts, and the trial court found in justification of this policy that "(t)here has been actual evidence via testimony of employees of the Department of Auditoriums of a number of patrons being injured by bottles and cans being thrown and by broken bottles and even the use of bottles during fights at rock concerts, all of which occurred prior to the institution of the City's inspection policy." In its findings of fact, the trial court explains the search procedure:

As implemented, the City's inspection policy involves the actual physical inspections of which Plaintiff complains. The inspections occur at or near the turnstiles of the Arena. The usual object of the inspections are women's handbags and men's and women's coats and jackets, handbags and shoulderbags if such items are large enough to conceal bottles or cans. In the case of handbags, the typical inspection may occur after the handbag has been opened with the consent of its owner at the request of a private security guard. The private security guard will visually examine the contents for bottles or cans and if bottles and cans are found, the patron is asked to leave them outside the Arena to be picked up after the rock concert, if she refuses, she is denied entry and receives a total refund on her admission ticket.

This procedure was instituted, as an administrative measure, by the City's department of auditoriums. No ordinance, statute or regulation is involved. Further, these inspections are not conducted for the specific purpose of criminal investigation or prosecution.

With respect to the incident concerning plaintiff Susan Nakamoto, the trial court found:

The facts are essentially undisputed. Susan Nakamoto attempted to enter a rock concert at the Arena on March 8, 1977 and was informed by private security guards that the handbag she was carrying was subject to inspection for bottles and cans as a condition of entry. Susan Nakamoto consented to the inspection of her handbag and was subsequently allowed to enter the Arena.

At the time of this incident, there was no sign at or near the arena concerning the City's inspection policy. Subsequently, and prior to trial, a sign announcing the policy was posted outside the arena between the concourse and the arena entrance. Similar notices were printed on the back of tickets for rock concerts. The posted sign, then and now, reads:

The check for bottles and cans in bags and jackets is for your own safety. We request your cooperation. Should you decline, you may obtain a refund.

Tenant

Plaintiff Nakamoto does not dispute the right of the City to adopt rules and regulations banning bottles and cans from the arena. Nor does she challenge the employment of security guards to enforce these rules by appropriate and approved search procedures. Rather, her complaint stems from the actual method or procedure established by the City in excluding these items, and basic to the plaintiff's contentions is her constitutional right to be free from unreasonable searches and seizures. See Article IV of the Amendments to the United States Constitution; ² Article I, Section 7, of the Hawaii Constitution. ³

I

The defendants initially argue in defense of the City's inspection policy that inasmuch as no criminal investigation or prosecution is involved, there is no "search" within the meaning of the Fourth Amendment or the Search and Seizure of the Hawaii Constitution. They contend that these provisions do not apply to situations where no criminal sanctions are imposed or contemplated. We disagree. "The basic purpose ... (of these constitutional provisions) is to safeguard the privacy and security of individuals against arbitrary invasions by government officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967). The constitutional proscription is clear; that is, that the person and effects of an individual are considered to be sacrosanct and may not be the object of unreasonable searches and seizures. It draws no distinction in its application between an individual suspected of criminal activity and one who is not. Cf. Marshall v. Barlow's, Inc., 436 U.S. 307, 312-13, 98 S.Ct. 1816, 1820, 56 L.Ed.2d 305 (1978) (warrant requirement applicable to OSHA inspections). Every person is entitled to this protection, and it would be doing violence to the basic premise underlying these provisions for us to hold that the guarantee shields the criminal suspect from warrantless and unreasonable searches and seizures but does not apply with equal force to the law-abiding individual.

II

The defendants, in the alternative, argue that in any event, plaintiff Nakamoto had consented to the inspection of her handbag by the security guard, and that the trial court had so found. A search based on consent is indeed an exception to the well-established rule that all searches conducted without a warrant are deemed to be unreasonable per se. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Consent in the constitutional sense, however, means more than the absence of an objection from the individual being subjected to a search. It must be shown that such consent was, in fact, freely and voluntarily given. State v. Patterson, 58 Haw. 462, 467, 571 P.2d 745, 748 (1977). And while there is no requirement that the person searched be first informed of his right to refuse consent to the search, the fact that he was not so advised is nevertheless a factor to be considered in evaluating the totality of the circumstances as they bear upon the question of whether such consent was freely and voluntarily given. Id. at 469-70 & n. 8, 571 P.2d at 749-50 & n. 8. Consent to be valid must be uncoerced and when it is clear that the search will be conducted regardless of the consent of the party searched, there can be no voluntary waiver of his right to be free from unreasonable searches and seizures. See State v. Kaluna, 55 Haw. 361, 373-75, 520 P.2d 51, 60-62 (1974). So that even where he is asked directly whether he objects to the search, there must be at least some intimation that his objection would be meaningful or that the search is subject to his consent. State v. Price, 55 Haw. 442, 444, 521 P.2d 376, 377 (1974).

When the foregoing principles are applied to the facts as they pertain to plaintiff Nakamoto, there was clearly no consent in the constitutional sense to the search of her handbag. She was stopped by a uniformed security guard at the entrance to the arena. She was...