State v. Bohannon, 24095.
| Decision Date | 02 September 2003 |
| Docket Number | NO. 24095.,24095. |
| Parties | STATE OF HAWAI`I, Plaintiff-Appellant v. ALICIA ANNE BOHANNON, Defendant-Appellee. |
| Court | Hawaii Supreme Court |
Mangmang Qiu Brown, Deputy Prosecuting Attorney, City & County of Honolulu, on the motion for plaintiff-appellant.
Upon consideration of the motion for clarification of the dissenting opinion filed by Plaintiff-Appellant State of Hawai`i, the attachments thereto, and the record,
IT IS HEREBY ORDERED that the motion is granted and footnote 11 on page 15 of the dissenting opinion is amended as follows (deleted material is bracketed and new material is double underscored):
The prosecution [argues that its filing of the motion for reconsideration tolled the time for appeal.] states that (Emphasis omitted.) (Emphasis added.) The prosecution is mistaken. It must appeal from the order granting the motion to suppress. In State v. Brandimart, 68 Haw. 495, 720 P.2d 1009 (1986), this court held that a motion to reconsider filed by the prosecution under HRPP Rule 47 following the granting of a motion to suppress does not toll the time for appeal of the suppression order. The Brandimart court reasoned:
Rule 47 of HRPP is silent as to any tolling of time for filing a notice of appeal. Under Rule 4(b) of HRAP, only a timely motion in arrest of judgment or for a new trial is a tolling motion.
. . . .
HRAP and HRPP are silent as to whether [a] motion [for reconsideration] tolls the thirty (30) day period for filing a notice of appeal. In the absence of an express statement to the contrary, we hold that the motion for reconsideration is not a tolling motion.
Id. at 497, 720 P.2d at 1010 (emphases added). Under Brandimart, the prosecution's motion for reconsideration is not a tolling motion. Therefore, the motion for reconsideration on June 13, 2000 did not toll the time for appeal of the trial court's oral order.
An amended dissenting opinion, incorporating the foregoing amendments, is being filed concurrently with this order. The Clerk of the Court is directed to provide a copy of this order and a copy of the amended dissenting opinion to the parties and notify the publishing agencies of the changes. The Clerk of the Court is further instructed to distribute copies of this order of amendment to those who received the previously filed opinion.
I agree that this court has appellate jurisdiction to address the merits of the prosecution's appeal for the reasons stated in section III A of the majority opinion. I disagree, however, with the majority's conclusion that Officer Kashimoto had reasonable suspicion to stop Bohannon. Thus, for the reasons that follow, I respectfully dissent as to section III B of the majority opinion.
Article I, section 7 of the Hawai`i Constitution was designed, inter alia, to safeguard the privacy of individuals against arbitrary, oppressive, and harassing invasions by the police. State v. Trainor, 83 Hawai`i 250, 259, 925 P.2d 818, 827 (1996) (citation omitted). To ensure against such invasions, this court has applied an objective reasonable suspicion test in the event of an investigatory automobile stop by the police. See State v. Bolosan, 78 Hawai`i 86, 94, 890 P.2d 673, 681 (1995) ().
Under this test, an investigating police officer must point to "specific and articulable facts warranting a reasonable belief that criminal activity is afoot." Trainor, 83 Hawai`i at 259, 925 P.2d at 827 (). Whether articulated facts support an objective belief of on-going criminal activity involves evaluating the totality of the circumstances. Kernan v. Tanaka, 75 Haw. 1, 38, 856 P.2d 1207, 1226 (1993). The key in such an analysis is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Id. at 37, 856 P.2d at 1225 (citations omitted).
Under the circumstances as articulated by Officer Kashimoto in this case, I do not believe that Bohannon's actions supported an objectively reasonable belief that criminal activity was afoot. The facts articulated by Officer Kashimoto indicate that, during the early morning hours, at the intersection of Kalakaua Avenue and Ala Wai Boulevard, Bohannon came to an abrupt stop within two feet of Officer Kashimoto's vehicle, resulting in a two-second screeching of tires. The totality of these circumstances is insufficient to warrant an invasion into an individual's personal security. To hold otherwise, would be tantamount to permitting arbitrary investigatory automobile stops that the safeguards in article I, section 7 of the Hawai`i Constitution were intended to protect against. Based on the foregoing, I respectfully dissent as to section III B of the majority opinion.
I disagree with the majority's holding that this court has jurisdiction over the appeal, and because I conclude that this court lacks jurisdiction, I do not address the merits of the appeal.(1) See Price v. Obayashi Hawaii Corp., 81 Hawai`i 171, 174-75, 914 P.2d 1364, 1367-68 (1996) (" " .
I believe a reasoned in pari materia interpretation of Hawai`i Rules of Appellate Procedure (HRAP) Rules 2.1(a), 4(b)(1), and 4(b)(3) and Hawai`i Rules of Penal Procedure (HRPP) Rule 2 would deem the notation of the court's order on the court calendar by the clerk as the entry of the order and, therefore, tantamount to the filing thereof so as to satisfy HRAP Rule 4(b)(3).(2) Thus, unlike the majority, I am of the opinion that a party may appeal from a final order that is noted on the district court's calendar, and that the time for appeal commences at that point rather than from a separate written judgment that may be filed at any time.
I believe this interpretation best comports with simplicity, fairness, and the elimination of unjustifiable expense and delay. The majority's approach of requiring a separate written judgment to be filed is contrary to an in pari materia reading of the relevant rules, the import of past precedent, and reason. The course chosen by the majority will cause an increased burden upon the district courts, counsel, the Intermediate Court of Appeals, and this court. In light of past practice, it is likely that nearly every district court case in which a final order is appealed from will have to be remanded for entry of a judgment in the form of a separate document, causing substantial delay and expense. Moreover, because the majority approach allows the filing of a separate judgment to be done at any time, it permits manipulation of the appeals process by one party to the substantial detriment of the opposing party and is thus inimical to the fair administration of the rules.
Applying an in pari materia approach, I would hold that the appeal of Plaintiff-Appellant State of Hawai`i (the prosecution) from the January 31, 2001 order of the district court of the first circuit (the court) granting the motion to suppress evidence filed by Defendant-Appellee Alicia Anne Bohannon (Defendant), and its January 22, 2001 order denying reconsideration was untimely because the time for appeal ran from May 26, 2000, the date the court's order was entered on the court's calendar, and not from the date of a separate written order filed with the clerk some eight months later.(3) Justice Ramil, who retired on December 30, 2002 and had heard oral argument in this case, had joined in this position.
Prior to trial in this case, Defendant moved to suppress all evidence obtained after the unlawful stop of her car. The court found that the prosecution failed to meet its burden of bringing the seizure of Defendant within a recognized exception to the warrant requirement. On May 26, 2000, the court granted Defendant's motion to suppress and dismissed the case by decision and oral order. The court clerk made a notation of the decision on the court calendar on the same day. There were no rules applicable to criminal cases in the district court that required the court to make findings of fact or conclusions of law at the time and no findings or conclusions of law are in the record on appeal.
The prosecution did not appeal from the May 26, 2000 notated order but, instead, moved for reconsideration of the court's order on June 13, 2000. In its motion for reconsideration, the prosecution, for the first time, argued that the arresting officer's actions in this case fit within the "public safety" exception to the warrant requirement and advocated adoption of this exception.
The court orally denied the motion for reconsideration on July 17, 2000, and the clerk entered the order on the court calendar. A written order denying the motion for reconsideration was later filed on December 11, 2000 and signed on January 22, 2001 (the January 22, 2001 order). The written order granting the motion to suppress was filed on January 25, 2001 and signed on January 31, 2001 (the January 31, 2001 order), after the order denying reconsideration. On February 15, 2001, the prosecution appealed.
On appeal, Defendant contends, inter alia, that the prosecution's appeal was untimely because ...
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