State v. Crowder

• Decision Date: 27 June 1980
• Docket Number: No. 6731,6731
• Citation: 613 P.2d 909,1 Haw.App. 60
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Judy Elizabeth CROWDER, also known as Judith Elizabeth Crowder, Defendant, and Vincent Santarone, Defendant-Appellant.
• Court: Hawaii Court of Appeals

Page 909

613 P.2d 909

1 Haw.App. 60

STATE of Hawaii, Plaintiff-Appellee, v. Judy Elizabeth CROWDER, also known as Judith Elizabeth Crowder, Defendant and Vincent Santarone, Defendant-Appellant.

No. 6731.

Intermediate Court of Appeals of Hawai'i.

June 27, 1980.

Syllabus by the Court

1. Arrest occurred when suspect was taken into physical custody and returned to site of theft.

2. Once defendant challenges lawfulness of warrantless arrest and search incidental thereto, State has burden of showing that arresting officer had probable cause.

3. In passing on validity of warrantless arrest, appellate court ordinarily considers testimony contained in record of pretrial motion to suppress and trial itself.

4. Appellate court declines to treat as admissions statements in briefs of both parties containing "facts" not apparent from circuit court record.

5. Where testimony of all witnesses is totally devoid of any indication that any of the officers present at site of arrest communicated with each other prior to arrest or that arresting officer acted on command or request of fellow officer, appellate court cannot impute information received by any other officer to arresting officer.

6. Where record fails to show that arresting officer knew that source of uncorroborated information was eyewitness, information cannot be deemed trustworthy for purpose of determining existence of probable cause.

Gary Robert, Lahaina, Maui (Gary R. Yackel, Honolulu, on the opening brief), for defendant-appellant.

Peter B. Carlisle, Pros. Atty., Honolulu (Stephen D. Tom, Deputy Pros. Atty., Honolulu, on the brief), for plaintiff-appellee.

Before PADGETT, Acting C. J., BURNS, J., and CHANG, Circuit Judge, in place of HAYASHI, C. J., disqualified.

BURNS, Judge.

Defendant-Appellant Vincent Santarone was convicted of theft in the first degree, in violation of Hawaii Revised Statutes Section 708-831(1)(b), after a trial by jury in the First Circuit Court on June 23, 1977. On this appeal, he challenges the judgment of conviction, alleging that his warrantless arrest was effected without probable cause, and that physical evidence recovered from his person in a search incident to the arrest should not have been admitted into evidence at his trial.

The primary question on this appeal is whether the detention of Santarone was an unlawful arrest precluding admission of the evidence subsequently recovered. The issues involved are: (1) when Santarone was arrested, and (2) whether the record shows that the arresting officer had probable cause at the time of arrest.

Hotel security guard Albert Leong was on duty late in the afternoon of October 9, 1976. At approximately 5:00 p. m. Leong was in the lobby of the Queen Kapiolani Hotel when he saw a man (Vincent Santarone) and a woman (Judith Crowder) in a jewelry shop located in the lobby. A short time later he saw the same two persons in an obscure lobby on the second floor of the hotel. He observed them talking to each other there for five or ten minutes. They were not dressed like tourists and their behavior pattern seemed furtive to Mr. Leong. He rode the elevator down with them. They went into the jewelry shop again. Leong observed them from the lobby through the shop's plate glass window. He was suspicious. He called a female sales clerk out of the shop and cautioned her to watch the couple very carefully, as he anticipated a problem with them. He told the clerk that he would be in the lobby and that she should shout to him in case a problem occurred.

While Leong was talking to a tourist in the lobby, he heard the sales clerk shout his name. Before he got to the door of the shop, Crowder had already run into the lobby and was running into the street nearby the front of the hotel. Leong looked into the shop, saw that Santarone was still inside and, since everything inside seemed to be in control, ran after Crowder, along Kapahulu Avenue and onto Cartwright Street, where he caught up to her. She sat down on the roadway of her own accord. Leong tried to get Crowder to stand up. She was swearing at him. A crowd began to form around them.

While Crowder was seated in the roadway, Leong saw a ring and a price tag between the fingers of her left hand. Santarone now reached the scene and went to Crowder, who had stood up. Leong held Crowder under her right arm and kept pushing Santarone away and telling him to stay away. In the process, Crowder's purse opened, the contents falling onto the road. Crowder asked for a light for her cigarette. Santarone tried to light it. Leong suspected that Crowder might try to pass the ring to Santarone and pushed him away again.

Leong was holding onto Crowder when police officers arrived on the scene. There were three or four police officers there. At about the same time some clerks from the jewelry shop also arrived. Leong saw a ring on the roadway and surmised it was the one Crowder had had in her hand. Leong pointed it out to a bystander, who picked it up and gave it to Leong, who gave it to "the officer". Leong pointed out to "the police officer" that the sales clerks were the people that were responsible for the jewelry. Leong told the "police officers" upon their arrival that the ring was given to him, that it belonged "to a fellow named Eugene", "one of the clerks at the store". Leong told "him" that he (Leong) was the security officer and that "the true complainant would be the store owner, which was Eugene".

Crowder was handcuffed and the whole group began to head back to the hotel. As Leong proceeded with "the group of officers" to the hotel, "the police officer on the motorbike" nudged Leong and pointed to Santarone. Leong indicated "to the police" that Santarone was Crowder's companion and said that Santarone was "involved in it, too".

According to Santarone's testimony at trial, ". . . somebody yelled out to stop me, so I turned around and I stood there and I looked back and there was some guy . . . telling the policeman to stop me and bring me back. So he did. Stopped his bike right there." The officer grabbed Santarone by the arm. The officers and suspects returned to the hotel manager's office.

Honolulu Police Department Officer Jose Antenorcruz was on duty on October 9, 1976. He responded to a call regarding "this theft" by proceeding directly to the hotel. When he arrived, he spoke to Ms. Ashihara, the clerk who had reported the theft. A few minutes after Antenorcruz's arrival, Officer Andrade told him that "they" had "both the suspects in this case detained in the manager's office".

Antenorcruz brought Ashihara to the manager's office for a possible identification. When they entered the office, Ashihara pointed out both the male and the female as the suspects. Then Antenorcruz brought Ashihara to another room to question her on the activity of Santarone. Ashihara told him that Santarone was with Crowder and said that "he constantly tried to distract her attention while she was showing the rings to his partner".

Thereafter, Antenorcruz formerly placed Santarone under arrest for theft. Immediately after placing him under arrest, Antenorcruz went to search Santarone's person and lifted up the front of Santarone's shirt. A ring fell from Santarone's waistband to the floor. Ashihara identified the ring as one of those taken.

Santarone moved to suppress the ring in a pretrial motion, which the trial judge denied. The ring was moved into evidence at the close of the State's case at trial. Santarone was convicted.

The first issue we must resolve is when Santarone was arrested. ¹ He contends, as he did below, that he was arrested when he was taken into custody by the officer who grabbed his arm and returned him to the hotel for detention there while the police continued their investigation.

The State contends that Santarone was not arrested until Officer Antenorcruz formally placed him under arrest, after his return to, and detention at, the hotel. The State maintains that Santarone was detained for investigatory purposes; i. e., obtaining statements from witnesses, identifying the suspects, and the recovery of stolen goods. The State submits that the police used good judgment in detaining Santarone until all the facts and circumstances of the theft were brought to light; that the detention was done with a minimum of force; that the movement back to the hotel and the detention in the manager's office were appropriate and reasonable under the circumstances and that the fact that Santarone was not free to go did not in itself constitute an arrest.

In support of its argument, the State relies on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny ² which carved out an exception to the probable cause requirement for certain warrantless searches and seizures of the person.

However, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), which was decided subsequent to the submission of briefs in this case, is dispositive of this issue.

In Dunaway, the issue before the Supreme Court was whether the Rochester police violated the Fourth and Fourteenth Amendments when, without probable cause to arrest, they took petitioner into custody, transported him to the police station, and detained him there for interrogation.

The State argued that its seizure of Dunaway was not an arrest and was permissible under the Fourth Amendment because the police had a reasonable suspicion that Dunaway possessed intimate knowledge about a serious and unsolved crime. The Court rejected this contention and in an extended analysis delineated the difference between a limited Terry stop and any more extensive detention.

Emphasizing Terry 's limitations, the Court said that "(b)ecause Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope". Id., 99 S.Ct. at 2255.

Like Dunaway, Santarone was not questioned briefly where he was found; he was...