State v. Bennett, 6263

• Decision Date: 29 April 1980
• Docket Number: No. 6263,6263
• Citation: 62 Haw. 59,610 P.2d 502
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Robert Howard BENNETT, Defendant-Appellant, and Brandon P. Parker, Defendant.
• Court: Hawaii Supreme Court

Page 502

610 P.2d 502

62 Haw. 59

STATE of Hawaii, Plaintiff-Appellee, v. Robert Howard BENNETT, Defendant-Appellant, and Brandon P. Parker, Defendant.

No. 6263.

Supreme Court of Hawai'i.

April 29, 1980.

Syllabus by the Court

1. In order for a police officer to conduct a valid stop and frisk, he must have observed specific conduct on the part of the person whom he is about to stop and frisk, or have reliable information from which he may reasonably infer that criminal activity is afoot and that the person being frisked is armed and dangerous.

2. The test of whether the officer's conduct of intrusion was reasonable is to be determined by whether the facts known to the officer, judged against an objective standard, would warrant a man of reasonable caution to believe that the action taken was appropriate.

3. There must be exigent circumstances for the police to conduct a warrantless search of an automobile.

4. The police may seize any evidence of a crime in "open view" so long as the searching officer is in a lawful position to conduct the search.

5. Whether pre-trial identification was unnecessarily suggestive and conducive to irreparable mistaken identification so as to deny defendant due process depends on totality of circumstances.

6. Factors to be considered by court to determine whether pre-trial identification was reliable are as follows: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the crime, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the time of the crime and confrontation.

7. The requirements of a statement against penal interest are that the declarant be unavailable; that he had knowledge of the facts concerning the declaration; that it was a declaration against his interest; and there was no motive to falsify.

Renee M. L. Yuen, Honolulu (Shelton G. W. Jim On, Deputy Public Defender, Honolulu, with her on the briefs), for defendant-appellant.

Peter Carlisle, Deputy Pros. Atty., Honolulu (Paul H. Toyozaki, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., KOBAYASHI, Retired Justice, and LUM, Circuit Judge, assigned by reason of vacancies.

PER CURIAM.

Appellant Robert Howard Bennett appeals from a jury conviction for burglary in the first degree. ¹ We affirm.

At about 4:00 a. m. on June 2, 1975, John Grimes suddenly awoke to find two male strangers searching his belongings on top of a television in the living room of his apartment; he yelled and both fled; he gave chase but lost both outside of his apartment.

Grimes immediately returned to his apartment and phoned the police, reporting the incident and giving a description of the two male persons.

An all-points bulletin of the burglary and the descriptions of the suspects were immediately broadcasted to police vehicles near the vicinity of the burglary. Within minutes of the broadcast, Officer Teller was a block away from Grimes' apartment. Teller saw two male persons appearing to match the descriptions given in a white Pontiac heading in a direction away from the apartment.

Teller immediately radioed Officer Harada, who was in another vehicle, to stop the suspects. Harada had also heard the all-points bulletin and descriptions earlier. A few seconds after Teller's message, Harada observed the white Pontiac go by. He gave chase and stopped the Pontiac on Leowahine Street, a public street, near an apartment complex, approximately a mile away from Grimes' apartment.

In the meantime, Teller had proceeded to the apartment to conduct an interview of Grimes.

After receiving Harada's radio message that the suspects were in custody, Teller drove Grimes to the place of apprehension to see if Grimes could identify the two suspects one was Brandon Parker, a Black person, and the other was appellant, a White person. The suspects were standing outside of their car in a well-lit area next to a shopping center parking lot. Teller drove to within twenty feet of them. Since Grimes had seen Parker's face during the burglary, he was able to positively identify Parker by face; but because he had not seen appellant's face at all, he was unable to identify him by face. He was able, however, to identify appellant by his physical characteristics and by his clothing.

Both persons were then arrested. The time period that elapsed between the burglary and the arrest was less than twenty minutes.

Immediately after their arrest, the police conducted an on-the-spot warrantless search of the car. From the floor on the back seat, a wine jug containing coins was seized and from the trunk a stereo set, a clock, and a tape recorder were seized. ²

Appellant stood trial alone because Parker had fled the jurisdiction.

I. STOPPING OF THE AUTOMOBILE BY THE POLICE AND THE SUBSEQUENT ORDER-OUT AND FRISK

Appellant complains that his constitutional rights ³ were violated when Harada stopped appellant's vehicle and he was ordered out and frisked; since the action of the police was unconstitutional, the evidence seized as a result of these unconstitutional acts should have been suppressed. ⁴ Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Initially, we conclude that appellant and Parker were "seized" by the police when their automobile was stopped. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971); State v. Joao, 55 Haw. 601, 525 P.2d 580 (1974); State v. Ogata, 58 Haw. 514, 572 P.2d 1222 (1977). We now examine whether the "seizure" was done within the guidelines of constitutional validity. ⁵ Terry v. Ohio, supra; Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); State v. Joao, supra, and State v. Onishi, 53 Haw. 593, 499 P.2d 657 (1972).

Following the doctrine laid out by Terry, we held in Onishi, Joao, State v. Powell, 61 Haw. 316, 603 P.2d 143 (1979) and State v. Kea, 61 Haw. ---, 606 P.2d 1329 (1980), that in order for a police officer to conduct a valid stop and frisk, he must have observed specific conduct on the part of the person whom he is about to stop and frisk, or have reliable information from which he may reasonably infer that criminal activity is afoot and that the person being frisked is armed and dangerous. And the test of whether the officer's conduct of intrusion was reasonable is to be determined by whether the facts known to the officer, judged against an objective standard, would warrant a man of reasonable caution to believe that the action taken was appropriate.

In determining the reasonableness of the officer's conduct, the information which he has on hand is vital, but he is not limited to his own personal knowledge. Where police officers are acting in concert and are keeping each other informed of the progress of a particular investigation, the knowledge of each is deemed the knowledge of all. State v. Barnes, 58 Haw. 333, 336, 568 P.2d 1207 (1977). Also, what is reasonable depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975).

Both Harada and Teller in separate vehicles heard the broadcast and the description given. The suspects were reported to be two males, one a Black and the other a White. The White was "approximately 6 feet to 6 feet two inches," "150 to 170 pounds," wearing a "dark green tee shirt," and "a dark jungle fatigue pants." He had a "military haircut" and his hair was of "brown color." The Black was possibly "six feet," "160 to 170 pounds," with "jungle fatigue shirt and trousers" and "Afro hair cut." Both were also reported to be wearing military combat boots.

As both officers headed toward the scene of the crime, Teller was the first to be attracted by the white Pontiac, which was travelling in a direction away from the victim's apartment and was a block away. Teller noticed that the driver was Black, wearing fatigue uniform, and the passenger was White, wearing a tee shirt.

Teller immediately radioed his observation to Harada in the back of him and requested Harada to stop the car. When Harada saw the car within four seconds later, he also noticed that the occupants were two male persons. He could see the driver clearly a Black, wearing an army fatigue shirt. He could not see the passenger clearly, but Harada could tell he had dark-colored hair and Harada could also tell he wasn't a Black male. Harada immediately gave chase and turned on his blue flashing light. The car attempted to get away. ⁶ Harada finally turned on his siren and stopped the car a little more than a quarter of a mile away.

The observations of Teller and Harada formed the basis for a reasonable person to conclude that the suspects had been involved in the criminal activity. Their observations were made within minutes of the crime and within a block of the alleged burglary at a time when there was hardly any traffic on the highway. While the suspects were last seen by Grimes fleeing on foot, it was reasonable to assume that they would be making their getaway by automobile. The automobile was heading in a direction away from Grimes' apartment. The suspects generally matched the description given. The car attempted to get away from Harada.

We hold that the investigatory stop of the car was not based on inarticulate hunches as argued by appellant, but instead was reasonably justified based on the officers' observation and information on hand.

We also hold that the circumstances which formed the reasonable basis for the stop of the car justified the order-out and frisk and, as part of such frisk, scanning the interior of the car...