State v. Bonds

• Decision Date: 19 April 1978
• Docket Number: No. 5921,5921
• Citation: 577 P.2d 781,59 Haw. 130
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Claude E. BONDS, Jr., Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 781

577 P.2d 781

59 Haw. 130

STATE of Hawaii, Plaintiff-Appellee, v. Claude E. BONDS, Jr., Defendant-Appellant.

No. 5921.

Supreme Court of Hawai'i.

April 19, 1978.

Syllabus by the Court

1. A discretionary stop of an automobile by a police officer for the purpose of investigating possible violations of laws regulating the operation of motor vehicles may be made only when there are specific and articulable facts which, when taken together with rational inferences from those facts, would warrant a man of reasonable caution to believe that criminal conduct is taking place and that the action taken is appropriate.

2. Evidence seen within an automobile and seized by a police officer after an investigative stop made without adequate cause was acquired by unreasonable seizure and was inadmissible.

3. Where a police officer has been found to have made a discretionary stop to enforce laws regulating the use of motor vehicles, the constitutionality of nondiscretionary and systematic checks of automobiles and drivers for compliance with such laws is not brought into issue.

Renee M. L. Yuen, Deputy Public Defender, Honolulu, for defendant-appellant.

Keith Walker, Deputy Pros. Atty. (Charles A. Viviano, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

Appellant's automobile was stopped by a police officer for the purpose of checking his possession of a required permit, without cause for the officer to suspect a violation of law. Appellant was convicted of possession of marijuana and of a dangerous weapon, both of which were found in his car by the officer after the stop. This appeal challenges the stop as an unreasonable seizure in violation of the Fourth Amendment and Article I, Section 5 of the Hawaii Constitution. ^{1 1} We agree that the evidence was obtained as the result of an invalid seizure and that the conviction must be reversed.

For the purposes of this opinion, we accept the version of the stop and search to which the police officer testified. The attention of the officer was first drawn to Appellant's automobile by its repeated acceleration and deceleration. He observed that the vehicle had wide tires which identified it as a "reconstructed vehicle". Under the then-operative provision of the municipal traffic ordinance, ² a reconstructed vehicle was required to bear a windshield sticker indicating that approval for reconstruction had been given, and in addition the driver of such a vehicle was required to carry a receipt detailing the reconstructions that had been approved.

Upon noticing that Appellant's vehicle was reconstructed, the officer radioed in for a registration check and was informed that it was registered in Appellant's name. He then switched on his flashing light and pulled Appellant over for the purpose of ascertaining whether Appellant possessed a reconstruction permit as required by the ordinance. After stopping Appellant, the officer left his car and approached Appellant's car. As he did so, the officer saw that Appellant's vehicle displayed a reconstruction sticker, but he nevertheless continued to approach the car and upon reaching it asked Appellant for his license. While leaning down to look in the car window at Appellant, the officer noticed a set of metal nunchaku sticks, which he believed to be a deadly weapon, between the front seats. He then ordered Appellant out of the car, arrested him for possession of the weapon, ³ and reached into the car to recover the nunchaku sticks. As he reached in he saw, on the floor of the front seat, a cloth bag from which a transparent package containing a substance resembling marijuana was protruding. He seized both the nunchaku sticks and the bag, the contents of which were found to be marijuana on subsequent analysis. It is this evidence which Appellant sought to suppress and which was admitted over his objection.

The sequence of events which led to the seizure of the incriminating evidence presents a series of questions with respect to permissible police action. The sequence commences with the stop of Appellant's vehicle by the police officer and continues through the arrest of Appellant for possession of a dangerous weapon, the entry of the officer into the car to obtain the weapon, the observation of the suspicious bag from within the vehicle, and finally the seizure and identification as marijuana of the contents of the bag. The State attempts to justify the search of the vehicle as incidental to a lawful arrest, which in turn is dependent on whether the nunchaku sticks are in fact a deadly or dangerous weapon within the meaning of HRS § 134-51. But the view of the nunchaku sticks through the window of Appellant's automobile resulted from the action of the police officer in stopping it so that he could approach the window. It is clear that, if this action constituted an unreasonable seizure in violation of the Fourth Amendment or Art. I, Sec. 5 of the Hawaii Constitution, the observation of the nunchaku sticks did not provide valid cause for Appellant's arrest or for the search of the vehicle. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); State v. Barnes, 58 Haw. 333, 568 P.2d 1207 (1977); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971); United States v. Montgomery,182 U.S.App.D.C. 426, 561 F.2d 875 (1977). Thus the threshold question deals with the initial stop of the vehicle. Since we conclude that the stop constituted an unreasonable seizure and fatally tainted all of the police actions which followed, we do not reach the subsequent questions.

In State v. Barnes, supra, we dealt with the permissible limits of a search of an automobile following an investigative stop. Although we held that the stop was constitutionally valid under the facts of that case, we declared that an automobile may be stopped for investigation of possible criminal activity only when there are specific and articulable facts which, when taken together with rational inferences from those facts and measured by an objective standard, warrant a man of reasonable caution to believe that criminal conduct is taking place and that the action taken is appropriate. Since our decision in Barnes turned on our determination that the scope of the search had exceeded that which may follow a valid investigatory stop, we did not need to define more precisely the circumstances under which an investigative stop may be made.

We now confirm that the standard which we announced in Barnes limits the discretionary actions of police officers in investigating possible violations of laws regulating the operation of motor vehicles. We reserve for future consideration, however, the constitutional validity of non-discretionary and systematic checks of automobiles and drivers for compliance with documentation and permit requirements. In the case before us, the stop of Appellant's automobile was not pursuant to any order or instruction to the officer, or even any practice of the particular officer, which might be looked to as guiding the exercise of his discretion. Thus our decision is limited to the wholly discretionary decision of an officer to single out one among many automobiles for investigation, with no cause to believe that a violation of law was taking place and nothing to show that the decision was guided by any standard which prevented it from being purely arbitrary.

The standard which we announced in Barnes and apply in this case extends to an investigative stop of an automobile the rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the Supreme Court said that a police officer may place an individual under restraint and search him for weapons when he is able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion upon the individual's privacy ("Terry facts"). "As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures 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, supra, 422 U.S. at 878, 95 S.Ct. at 2578.

Prior to Terry, investigative stops of automobiles in the unguided discretion of police officers, to check compliance with vehicle registration and driver's license requirements, were generally upheld without any showing of cause to believe that a violation existed. City of Miami v. Aronowitz, 114 So.2d 784 (Fla.S.Ct.1959); United States v. Berry, 369 F.2d 386 (3d Cir. 1966); Rodgers v. United States, 362 F. 358 (8th Cir.), cert denied, 385 U.S. 993, 87 S.Ct. 608, 17 L.Ed.2d 454 (1966); Welch v. United States, 361 F.2d 214 (10th Cir.), cert. denied, 385 U.S. 876, 87 S.Ct. 153, 17 L.Ed.2d 103 (1966); Lipton v. United States, 348 F.2d 591 (9th Cir. 1965). Similar holdings have appeared since Terry. State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (1975); accord, State v. Benson, 198 Neb. 14, 251 N.W.2d 659 (1977); State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973); United States v. Turner, 442 F.2d 1146 (8th Cir. 1971). Other courts, however, since Terry have required Terry facts in justification of discretionary stops of automobiles for document checks. United States v. Montgomery, supra; People v. Ingle, 36 N.Y.2d 413, 369 N.Y.S.2d 67, 330 N.E.2d 39 (1975); State v. McKinley, 305 Minn. 297, 232 N.W.2d 906 (S.Ct.1975); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); People v. James, 44 Ill.App.3d 300, 3 Ill.Dec. 88, 358 N.E.2d 88 (1976). Of course, the authority of the police to stop vehicles in cases of observed violations is not in question.

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