State v. Chong, 4822

• Decision Date: 13 August 1970
• Docket Number: No. 4822,4822
• Citation: 473 P.2d 567,52 Haw. 226
• Parties: STATE of Hawaii v. Jong Suk CHONG and Martha Pimental Chong.
• Court: Hawaii Supreme Court

Page 567

473 P.2d 567

52 Haw. 226

STATE of Hawaii v. Jong Suk CHONG and Martha Pimental Chong.

No. 4822.

Supreme Court of Hawai'i.

Aug. 13, 1970.

Syllabus by the Court

1. Where a motion for judgment of acquittal has been denied, the question on appeal is whether there is substantial evidence in the record to support a verdict of guilty beyond a reasonable doubt.

2. A warrantless search, if sufficiently limited in scope, is permissible incident to an arrest based upon probable cause.

3. Probable cause may be based on a combination of factors which, viewed together, warrant the police in the reasonable belief that an offense is being or has been committed, even though any one of those factors might be insufficient by itself to establish probable cause.

4. In this case, the position of the two defendants, the furtive, suspicious conduct of one defendant, the expertise of the arresting officers, and the past reputation of the defendants as narcotics users combined to establish probable cause. Reputation alone, however, would never be sufficient to establish probable cause.

5. In defining the allowable scope of a warrantless search incident to an arrest, there is a difference between houses and cars, because of the highly mobile nature of cars.

6. Under the Fourth Amendment, when officers validly arrest a defendant in his car on a public street or highway, they may reasonably either detain the arrestee's car until a search warrant can be obtained, or search it without a warrant. The search may extend to the entire vehicle.

Harry T. Tamura, Honolulu, for appellant.

Stanley T. Kanetake, Deputy Pros. Atty., Honolulu (Barry Chung, Pros. Atty., Honolulu, with him on the brief), for appellee. Before RICHARDSON, C. J., MARUMOTO, ABE and LEVINSON, JJ., and HAWKINS, Circuit Judge, for KOBAYASHI, J., disqualified.

RICHARDSON, Chief Justice.

A jury found Jong Suk Chong guilty of possession of heroin, and he was sentenced to imprisonment for a period of not more than ten years. He appeals to this court, claiming violation of his Fourth Amendment rights and errors by the trial court.

The facts of the case are as follows: Shortly before noon on Sunday, January 28, 1968, three police officers assigned to the narcotics detail of the Honolulu Police Department were on regular patrol, with Sergeant John Borges driving. Turning into Kanoa Street from Palama Street, they saw a blue Falcon sedan some distance ahead of them. Sergeant Borges testified, both at the hearing on defendants' motion to suppress evidence and at the trial, that he recognized the sedan as a vehicle often used by Jong Suk Chong and his wife, Martha Pimental Chong, and that both Mr. and Mrs. Chong were known to him as users of narcotics. He explained that this knowledge was based both on Police Department records, which showed among other things that Mr. Chong was a convicted narcotics violator, and on his prior personal observation of both Mr. and Mrs. Chong. He testified that he had previously seen both of them visit locales where known narcotic activity was being carried on, and that he had seen them parked at various places in the City and County of Honolulu administering narcotics to their arms; and that on one particular occasion, while he was investigating another area in the City and County of Honolulu, he had happened upon Mr. Chong and his wife and three other known addicts, and when he got up to the car, he found paraphernalia associated with drug use lying in the road, and he found a piece of a capsule on the side of the car.

At the hearing on defendants' motion to suppress the evidence, Officer Burns also testified that both Mr. and Mrs. Chong were well-known narcotic users.

With this knowledge in mind, the officers slowly drew alongside of the car where the Chongs were sitting, and looked into the car at them. Officer Burns testified that Mr. Chong was in the middle of the back seat, leaning forward with his arms over the back of the front seat. Mrs. Chong was in the front seat, facing rearward, holding an eyedropper and looking at Mr. Chong. A few seconds after the officers pulled alongside, Mrs. Chong threw the eyedropper out of the car and swallowed something that she had in her hand. This testimony was corroborated by Sergeant Borges. The position and conduct of the defendants, along with the officers' knowledge of their background and reputation of narcotics activity, led them to believe that the Chongs were committing a felony in their presence, and they left their car and arrested Mr. and Mrs. Chong. Officer Burns testified at the motion to suppress that the position of the defendants immediately before the arrest was unusual and suspicious because both were well-known narcotic users; that 'right away we knew what was going on, from the appearance, because we know these people as narcotic users.'

The officers' experience as narcotics officers aided them in this conclusion. Sergeant Borges testified that he had been on the narcotics detail for three years, that he had participated in about thirty to fifty arrests involving heroin, and that he had witnessed people administering heroin to themselves on at least ten different ococasions. He further testified that Mrs. Chong's furtive actions were especially suspicious in light of his knowledge of heroin users. He testified that

people that use heroin, when they see a police officer, and they feel that they're going to be arrested, they're going to do one of three things. They might swallow the object, they're going to throw the object, or they're going to drop the object and try to hide it.

He further testified, on cross-examination at the hearing on the motion to suppress, as follows:

A. * * * as I testified earlier, I was only a little bit away from the car, and before I got to Mrs. Chong she swallowed what I felt was heroin.

Q. What you thought was heroin?

A. Yes.

Q. But you don't know for sure?

A. I don't know for sure, sir, but that's the usual procedure.

On this basis, then, the officers arrested both Mr. and Mrs. Chong, ordered them out of the Falcon and searched it. On the back seat they found a box containing various paraphernalia often used by heroin addicts. On the floor, in the back of the car, on the right-hand side, they found half a gelatin capsule empty, but with some residue adhering to its inner surface. The residue turned out, upon analysis, to be heroin. The eyedropper, found outside the car where Mrs. Chong had thrown it, also was found to have traces of heroin in it. Traces of heroin were also found on a burnt spoon, one of the pieces of equipment found in the box.

At the hearing on defendants' motion to suppress the evidence, and at the trial, the defendants argued that the capsule and the paraphernalia, along with the analyses thereof, were inadmissible as evidence, on the ground that the search of the car and the seizure of these items were accomplished without a warrant, in violation of the defendants' rights under the Fourth Amendment, applicable to the states under the Fourteenth Amendment under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). At the hearing on the motion, the court ruled that the evidence was admissible, holding that the arrest was based upon probable cause and that the ensuing search was valid as incident to the lawful arrest. It based its finding of probable cause upon (1) the known personal background of the defendants as users of narcotics, and (2) the conduct of Mrs. Chong when the officers pulled alongside the Chongs' car. It felt that, viewed in light of the defendants' past history, the conduct of Mrs. Chong was enough to establish probable cause. The court emphasized that it did not have to make a finding of probable cause to arrest Mr. Chong, because the search was lawful incident to Mrs. Chong's arrest. Since the evidence was thus lawfully obtained, the court held that it could be used against both defendants.

At the trial, the evidence was admitted over defendants' objection. They later moved for a judgment of acquittal, but that motion was denied. The jury returned a verdict of guilty against both defendants. Mr. Chong was sentenced to imprisonment for a period of not more than ten years. Mrs. Chong was released on probation for a period of five years, on condition that she not associate with any known users or sellers of narcotic drugs. Mr. Chong appeals. We affirm his conviction.

I. The Motion for Judgment of Acquittal

The issue presented by this motion is whether there is substantial evidence in the record to support a verdict of guilty beyond a reasonable doubt. State v. Kekaualua, 50 Haw. 130, 433 P.2d 131 (1967). We find that there was substantial evidence to support the verdict, and we therefore decline to reverse the conviction on this ground.

II. The Search and Seizure

The search and seizure in this case were performed without a search warrant or an arrest warrant. However, a limited warrantless search is permissible incident to an arrest based upon probable cause, as has been most recently recognized in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (U.S. June 22, 1970). Furthermore, as the court correctly held at the hearing on the motion to suppress the evidence, we need not decide whether there was probable cause to arrest Mr. Chong, if there was probable cause to arrest Mrs. Chong, and the search was justified incident to her arrest.

Whether the evidence in this case was obtained by an illegal search and seizure depends on two factors. First, whether there was probable cause to effect an arrest; and second, given probable cause, whether the scope of the incident search was sufficiently limited to be valid as a...