State v. Augafa, 21364.

• Citation: 92 Haw. 454,992 P.2d 723
• Decision Date: 22 December 1999
• Docket Number: No. 21364.,21364.
• Parties: STATE of Hawai`i, Plaintiff-Appellant, v. Felix A. AUGAFA, Defendant-Appellee
• Court: Hawaii Court of Appeals

992 P.2d 723

92 Haw. 454

STATE of Hawai`i, Plaintiff-Appellant, v. Felix A. AUGAFA, Defendant-Appellee

No. 21364.

Intermediate Court of Appeals of Hawai`i.

December 22, 1999.

James Anderson, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellant.

Joyce Matsumori-Hoshijo, Deputy Public Defender, for defendant-appellee.

Edward C. Kemper (Kemper & Watts), on the brief, Honolulu, for amicus curiae.

BURNS, C.J., WATANABE, and ACOBA, JJ.

Opinion of the Court by ACOBA, J.

We hold that at the hearing to suppress evidence initiated by Defendant-Appellee Felix A. Augafa (Defendant), Plaintiff-Appellant State of Hawai`i (the State) established a legal basis for the arrest of Defendant and for the recovery of drugs from his person. We further hold that under the circumstances of this case, open and visible video camera surveillance of the public sidewalk area on which Defendant was situated was not violative of Defendant's constitutional right against unreasonable searches, seizures and invasions of privacy under article I, section 7 of the Hawai`i Constitution. While the first circuit court (the court) concluded no constitutional violations occurred, it suppressed the evidence in the exercise of its inherent supervisory power over criminal prosecutions because the "interests involved are serious enough" and the "capabilities of the ... technology ... varied enough to require legislation ... authorizing use of this technology prior to its actual implementation."

We conclude however that while the court's inherent supervisory power may be invoked to suppress illegally obtained evidence, it cannot be exercised to suppress legally obtained evidence for the purpose of spurring the adoption of particular laws, however salutary such legislation may appear to be. Accordingly, we reverse the court's February 17, 1998 order which suppressed evidence and statements obtained from Defendant.

Finally, if as the court implies it believed the prosecution and police had misrepresented the existence of videotape recordings in other cases, it could as part of its adjudicatory function, exercise supervisory power to fashion appropriate measures for misconduct in those and future cases and/or in each case impose judicial sanctions plainly available to it.

I.

On February 28, 1997, Defendant was charged by complaint with Promoting a Dangerous Drug in the Third Degree in violation of Hawai`i Revised Statutes (HRS) § 712-1243 (1993).¹

On April 1, 1997, defense counsel filed a "Motion to Preserve, Produce and Compel Evidence and Testimony," in which he requested "all surveillance [video]tapes taken and/or used by the State in the Downtown area, including those of [Defendant] and/or police informants having verbal and/or physical contact with [D]efendant immediately preceding his arrest on these charges." The motion was heard on April 15, 1997.

Pursuant to a written order issued on May 9, 1997, the court granted the motion. In the written order, the court stated that "[s]urveillance videotapes taken and used by the State are discoverable under [Hawai`i Rules of Penal Procedure (HRPP)] Rule 16[.]" The minutes from the proceedings of April 15, 1997, which are a part of the record, state that "[the] State ha[d the] video[tape] in Cr. # 97-0419 and w[ould] turn over [a] copy to [defense counsel]." Further, "if [there was] no [video]tape, [the] prosecutor need[ed] to notify [defense counsel] in writing why [the videotape was] not available."

On August 5, 1997, Defendant moved to suppress evidence recovered from him and statements he made at the time of his arrest on February 18, 1997, and for return of property seized. Defendant's motion contended that the use of a surveillance camera constituted an unconstitutional search under the Hawai`i Constitution. In his attached declaration, defense counsel asserted that "cameras used and monitored by the police were placed without warrants in receptacles throughout the Chinatown area" and Defendant was the subject of camera surveillance. Counsel stated that within five seconds after Defendant was observed on camera "passing something to a woman[,]" an officer on a bicycle rode up to him and arrested Defendant on the basis of two traffic warrants. Counsel maintained that "[t]he sighting, the items in [Defendant's] hand, and all that was derived therefrom should be suppressed as the fruit of the illegal monitoring that occurred on February 18, 1997."²

The hearing on Defendant's suppression motion was held on September 2, 1997, and later continued to September 16, 1997. At the beginning of the September 2 hearing, defense counsel asked "what the prosecution's position was about the existence of the [video]tape because it was [his] understanding from the [c]ourt there were [sic] none." The deputy prosecuting attorney (the prosecutor) responded, "I'm not aware of any. I understand that [defense counsel] has got [sic] a [video]tape here in the courtroom, which I find astonishing, I'm not—I'm not aware of any [video]tape."

Police Officer Kyong Kim (Kim) then went on to testify that on February 18, 1997, he was assigned to the bicycle detail in downtown Honolulu. Kim related that before beginning his patrol, he was in the Chinatown police sub-station learning how to operate the recently installed video camera which scanned the Hotel Street area. Kim stated that while operating the video camera, he momentarily saw on the video screen Defendant located at the front of an establishment called "Two Jacks Bar" (the bar). According to Kim, Defendant was not engaged in any suspicious activity.

Kim testified he then went out on routine patrol. Circling the block, he saw Defendant in the same place he had earlier observed him to be on the video screen. Kim explained that because he had previously assisted another officer in arresting Defendant for a drug offense, he returned to the substation to determine if any outstanding arrest warrant for Defendant existed.³ Kim related that upon finding two outstanding traffic warrants, he returned to Defendant's location and placed him under arrest.

Kim stated that Defendant was seated on a small step in front of the bar and as he approached, Defendant appeared to be "kind of apprehensive ... like he wanted to get out of the area[.]" According to Kim, Defendant kept one or both of his hands clenched in a fist.⁴ Kim explained that he then ordered Defendant to remain in his "seated position[,]" and about twenty minutes later, received the report numbers for the warrants from police dispatch.⁵ At that time he ordered Defendant to stand and then handcuffed him. Kim asserted that when he was handcuffed, Defendant opened one of his hands, disclosing a "rock-like substance" in it. Kim recovered the substance which was later determined to be rock cocaine.

On cross-examination, Kim disclosed that he did not know a recording was being made when he operated the video surveillance equipment; he thought it was "just a test phase for the camera." Additionally, he acknowledged that he knew of no guidelines or procedures relating to its operation. However, he maintained it was not his intent "to watch the camera until [he] observed a suspicious transaction and then [to] arrest" the suspect. According to Kim, Defendant "just happened to be on the screen when the camera was pointed in that direction." The following examination by defense counsel took place:

Q [DEFENSE COUNSEL]: Okay. And now, are you sure you confirmed the-did you see a suspicious hand-to-hand transaction with your own eye[s]?

A [KIM]: Involving who, sir?

Q: Involving [Defendant] and a woman?

A: No.

Q: Were you told of such a transaction by somebody who was monitoring the camera?

A: I can't remember.

Q: Because in the sequence of events, isn't it true that you arrived on the scene seconds after she left?

A: I don't know. I don't remember. Is that in my report?

Q: No. In fact, there's nothing about the camera you mentioned in your report at all, was there?

A: Yeah, because I viewed no violation with the camera, so I didn't feel it was necessary to place that in my report.

Q: Okay. But if you had heard about a violation occurring by means of the camera, wouldn't you think it would be important to put that in your report?

A: Probably, yeah.

(Emphases added.)

Kim agreed that the camera was "movable[,]" and could "track an individual up and down the street[.]" He also concurred that the camera had "zoom" capability and could "get the view of being right next to the person[.]" Kim didn't "think [the equipment] could pick up any sound." Additionally, Kim did not know whether the camera had "enhanced nighttime viewing" capability because he had never used it at night.

The following exchange about Kim's decision to arrest Defendant was initiated by the court:

THE COURT:—I'm puzzled about one thing. If you saw [Defendant] on the monitor while you were kind of fussing with the-before you began your routine patrol, why didn't you check for warrants then?

[KIM]: I just didn't, ma`am. I just went back on patrol, and I just saw him hanging around the same area again, and that's—I thought, okay, he might be up to no good or whatever, so I said okay. I think I'm going to run a check on him just in case.

But when I first saw him on the screen, it was like—we just was [sic] playing around with the camera, oh, there's [Defendant] hanging around in front of [the bar] and, okay, that's the way the camera works, fine.

Then I just went back on patrol, went around the block, hey, [Defendant] is hanging around the same area again. Okay, let's go—just go run a check on him, see what he's up to; so that's what made me run the check, anyway.

(Emphasis added.)

After Kim's testimony, defense counsel moved to have the videotape received in evidence, arguing that it was "self-authenticating." However, the prosecutor maintained, "[T]his is the first time I've known of the existence of this tape and would be most...