State v. Cuntapay

• Decision Date: 05 March 2004
• Docket Number: No. 24841.,24841.
• Parties: STATE of Hawai'i, Respondent/Plaintiff-Appellant v. Reynaldo CUNTAPAY, Petitioner/Defendant-Appellee.
• Court: Hawaii Supreme Court

85 P.3d 634

104 Haw. 109

STATE of Hawai'i, Respondent/Plaintiff-Appellant v. Reynaldo CUNTAPAY, Petitioner/Defendant-Appellee.

No. 24841.

Supreme Court of Hawaii.

March 5, 2004.

Catherine H. Remigio, Deputy Public Defender, on the application for petitioner/defendant-appellee.

LEVINSON, ACOBA, and DUFFY, JJ.; and NAKAYAMA, J., dissenting, with whom MOON, C.J., joins.

Opinion of the Court by ACOBA, J.

We granted certiorari herein and hold that under Article I, section 7 of the Hawai'i Constitution,¹ a guest of a homedweller is entitled to a right of privacy while in his or her host's home. Under the circumstances of this case, Petitioner/Defendant-Appellee Reynaldo Cuntapay (Petitioner) had such a right. Insofar as a majority of the Intermediate Court of Appeals (the ICA) held on appeal that Petitioner had not demonstrated he had an expectation of such privacy and that such expectation was reasonable, it was incorrect. Thus, we reverse the Summary Disposition Order (SDO) of the ICA² filed on September 15, 2003, vacating the order of the second circuit court (the court)³ granting Petitioner's motion to suppress evidence recovered from his host's home. We affirm the court's order but on independent state constitutional grounds discussed herein, rather than on Fourth Amendment grounds cited by the court.

I.

Petitioner was charged in a June 15, 2001 complaint with promoting a dangerous drug in the third degree, Hawai'i Revised Statutes (HRS) § 712-1243(1) (1993)⁴ (Count I) and unlawful use of drug paraphernalia, HRS § 329-43.5(a) (1993) (Count II). On July 24, 2001, Petitioner filed his motion to suppress evidence and statements. On August 23, 2001 and October 4, 2001, hearings were held on the motion.

On December 19, 2001, the court issued its findings of fact (findings) and conclusions of law (conclusions) granting Petitioner's motion to suppress. Respondent/Plaintiff-Appellant State of Hawai'i (the prosecution) does not take issue with the court's findings. The court made the following pertinent findings:

1. On June 5, 2001, at approximately 10:58 a.m., Officers Randy Esperanza and Lance Marks of the Maui County Police Department made a check of 835 Kuialua Street, Lahaina, Maui, Hawai'i for an individual with an outstanding bench warrant. Although the address on the bench warrant was different, the officers went to 835 Kuialua Street because the person named in the bench warrant had previously used 835 Kuialua Street as a residence address.

2. As the officers approached the garage area of the residence, they observed approximately seven to ten adult males in the garage. Some of the males were standing and others were seated around a table in the garage.

3. The officers approached the males in the garage and observed money and playing cards on the table. The officers did not hear any bets made, see any money exchanged, nor observe anyone act as the house for possible gambling activity. The officers could not tell what game was being played nor were they sure there was any illegal gambling taking place.

4. As the officers approached, the males appeared scared, began to grab money from the table and scrambled away from the table.

5. Defendant, who had been in the garage as the police approached, was not the person named in the bench warrant the police were attempting to serve. No one else at the scene proved to be the person named in the bench warrant.

6. As Officer Esperanza approached, Defendant walked away from him. Defendant walked to a washroom located in the garage area. The door to the washroom was open.

7. As Defendant walked away from Officer Esperanza, he had a small black object in his right hand.

8. Officer Esperanza observed Defendant walk into the washroom and reach behind a washing machine. After doing so, Defendant immediately walked out of the washroom and to Officer Esperanza. As Defendant did so, Officer Esperanza no longer saw anything in Defendant's hands.

9. After Defendant left the washroom, Officer Esperanza asked Officer Marks to assist him by watching Defendant. Officer Esperanza then entered the washroom and looked behind the washing machine. While doing so, Officer Esperanza observed a small magnetic box, commonly used to hold keys, behind the washing machine. Officer Esperanza could not see inside the magnetic box. He could see some plastic protruding out of the side of the box.

10. The back of the washing machine was situated approximately six to eight inches from the wall. The magnetic box was located approximately twelve inches below the top of the washing machine.

11. Upon seeing the magnetic box behind the washing machine, Officer Esperanza was no longer concerned that it might be a weapon or that it presented any risk of danger to the officers. He also did not believe it was evidence of any gambling activity. But for the protruding plastic, Officer Esperanza could not see the contents of the magnetic box nor determine if the box contained any contraband.

12. Officer Esperanza then moved the washing machine another eight to twelve inches away from the wall in order to get a clear view of the magnetic box. At this point, he could see that the magnetic box was opened slightly, about one-quarter of an inch. He conducted a closer inspection of the plastic bag protruding from the magnetic box and could see a rock-like substance in the protruding plastic bag. Based on his training and experience, Officer Esperanza believed that the rock-like substance was methamphetamine.

13. Officer Esperanza then seized the magnetic box from behind the washing machine, but decided not to open it until later.

14. Officer Esperanza then left the washroom, informed Defendant of his findings, placed him under arrest and handcuffed him. For officer safety, he removed Defendant's fanny pack from his waist. After doing so, he felt the fanny pack for weapons and determined that it contained an object that felt like a smoking pipe with a bulbous end. Officer Esperanza did not open the fanny pack.

(Emphases added.) The police later obtained a statement from Petitioner and recovered the drug paraphernalia from Petitioner's fanny pack. Petitioner testified at the suppression hearing that he had been to the residence before. He said that he went there once or twice a week to play cards and darts and to smoke "batu."⁵ In relevant part the court in its conclusions ruled that the search of the area behind the washing machine and the subsequent inspection of the key box constituted an unreasonable search and the evidence recovered thereafter were the fruits of the illegal search.

1. The area behind the washing machine where the magnetic box was found and seized by the police was a place where Defendant had a legitimate expectation of privacy protected under the fourth amendment's proscription against unreasonable searches and seizures....

2. ... [T]he subsequent movement of the washing machine away from a wall in order to closely inspect the contents of a magnetic box attached to the back of the washing machine for evidence that otherwise would not have been visible to the police constituted a warrantless search.

....

7. The search of the area behind the washing machine after it was moved away from the wall and the subsequent inspection of a portion of the plastic bag protruding from a one-quarter inch opening of the magnetic box constituted a warrantless search requiring suppression of the evidence seized from the magnetic box.

8. The arrest of Defendant was based on evidence obtained by means of an impermissible warrantless search. While an issue may exist with respect to the arresting officer feeling the contents of Defendant's fanny pack, there is no dispute that the evidence recovered from the fanny pack and the statements made by Defendant were fruits of the warrantless search and must therefore, also be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

(Emphases added.) The prosecution claimed as error conclusions 1, 2, 7 and 8 reproduced above, and conclusions 3⁶ and 6⁷. In its opening brief the prosecution summed up its position in a two-fold argument⁸: (1) "[Petitioner's] own fourth amendment rights were not violated by the movement of the washing machine since he had no legitimate expectation of privacy in the washing machine or surrounding area and he lacked standing to object to the search because [Petitioner's] own fourth amendment rights were not violated" and (2) "[Petitioner] effectively abandoned the partially open magnetic key holder with the plastic bag[,]... thereby relinquishing any personal interest in the key holder and losing any expectation of privacy in the key holder."⁹ In its reply brief, the prosecution cited State v. Tau'a to support its contention that Petitioner had no standing to claim an expectation of privacy in the washroom. 98 Hawai'i 426, 428, 49 P.3d 1227, 1229 (2002) (holding that because Tau'a, as a passenger, did not have a reasonable expectation of privacy in the truck, his personal constitutional rights were not violated by a warrantless search, and Tau'a could not invoke either article I, section 7 of the Hawai'i Constitution or the fourth amendment to the United states Constitution as a basis for suppressing the evidence recovered from the vehicle).

II.

"[W]e review the circuit court's ruling on a motion to suppress de novo" and must look to the entire record on appeal "to determine whether the ruling was `right' or `wrong.'" State v. Hauge, 103 Hawai'i 38, 47, 79 P.3d 131, 140 (2003). "We answer questions of constitutional law by exercising our own independent judgment based on the facts of the case.... Thus, we review questions of constitutional law under the `right/wrong' standard." Id. (quoting State v. Jenkins, 93 Hawai'i 87, 100, 997 P.2d 13, 26 (2000)).

III.

In its SDO, a majority of the ICA stated that "[a] defendant must demonstrate that he or she personally has an expectation of privacy in the place...