State v. Custodio

• Decision Date: 13 March 1980
• Docket Number: No. 6515,6515
• Citation: 62 Haw. 1,607 P.2d 1048
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Nora CUSTODIO, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 1048

607 P.2d 1048

62 Haw. 1

STATE of Hawaii, Plaintiff-Appellant, v. Nora CUSTODIO, Defendant-Appellee.

No. 6515.

Supreme Court of Hawai'i.

March 13, 1980.

Syllabus by the Court

1. The reasonableness of a search within the meaning of the Fourth Amendment depends in large part on the facts and circumstances of the particular case. Often, the determination is made by a balancing of the individual's right to be free from arbitrary and unreasonable seizures and the governmental interest sought to be served.

2. Whether a search is an unreasonable intrusion within the meaning of the Fourth Amendment turns on whether the search infringed upon appellee's "legitimate expectations of privacy." First, the individual involved must have exhibited an actual expectation of privacy; second, the expectation must be one that society is prepared to acknowledge as reasonable.

3. Appellee's expectations of privacy in a balloon recovered from her body pursuant to a proper strip search were necessarily diminished so that the subsequent warrantless search of the balloon's contents was proper.

4. Because a visitor to the prison is free to leave whenever she so chooses, search of the visitor is only a condition of entry to the prison. Those visitors wishing to avoid searches need only refrain from seeking admission.

5. Prison security and maintenance are compelling governmental interests justifying restrictions on visitation.

Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Jacquelyn desMarets, Deputy Public Defender, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., Retired Justice MARUMOTO and Circuit Judge LUM, assigned by reason of vacancies.

RICHARDSON, Chief Justice.

Appellant State of Hawaii appeals from the judgment of the District Court of the First Circuit granting appellee's pretrial motion to suppress drugs recovered as a result of a strip search of appellee in Hawaii State Prison. We reverse.

On August 7, 1976, defendant-appellee Nora Custodio arrived at Hawaii State Prison to visit one of the inmates. A sign posted in front of the prison gates serves notice to all visitors that they will be subject to search upon entry to the prison. After entry, appellee went through certain routine procedures ¹ including registering information and checking her personal belongings with prison officials. After completing these procedures, appellee was led into a separate room and asked by Matron Dolores Kau whether she would submit to a strip search. She readily consented and proceeded to remove her clothing. As appellee removed her undergarments, Matron Kau noticed a white fuzz between appellee's legs in the vaginal area. When questioned by Matron Kau about the nature of the fuzz, appellee responded, "Nothing." Matron Kau then asked appellee to remove the article and appellee herself pulled the object out and handed it to the matron. The object recovered was a multi-colored balloon. Matron Kau then called the front gate guard who alerted the police department. On arrival of the police, appellee was questioned and the balloon seized. Appellee was arrested for promoting prison contraband in violation of HRS § 710-1023, a charge that was subsequently changed to promoting detrimental drugs, in violation of HRS § 712-1249. The balloon was taken to the police department's narcotics division and on analysis of its contents was found to contain .5 grams of marijuana.

On March 7, 1977, the Honorable Richard Au, District Judge of the First Circuit, granted appellee's motion to suppress the balloon and its contents, relying on this court's ruling in State v. Kaluna, 55 Hawaii 361, 520 P.2d 51 (1974). In his ruling Judge Au addressed two major points: (1) that although the initial strip search of appellee was proper, the seizure of the balloon from appellee's body cavity was not consented to rather there was a "submission to authority" ² an unintentional waiver of appellee's constitutional rights; and (2) that the subsequent search of the balloon and recovery of its contents was also an unreasonable search because Matron Kau prior to opening the balloon only had a suspicion that it contained contraband. This "mere suspicion" was insufficient to constitute probable cause and therefore a warrant was required before the balloon's contents could have been searched.

We consider these two issues raised on appeal:

(1) Whether the initial seizure of the balloon was an unreasonable search and seizure in violation of the United States Constitution and state constitution.

(2) Whether the search of the contents of the balloon constituted an unreasonable search and seizure in violation of the United States Constitution and state constitution.

We conclude that neither search violated either the federal or state constitutions.

I

The Fourth Amendment of the Constitution of the United States guarantees each citizen a right to be free from unreasonable governmental intrusions:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Our state constitution, Article I, section 7, contains a similar provision which has been interpreted in some instances to afford greater protection than the federal constitution. See State v. Santiago, 53 Hawaii 254, 492 P.2d 657 (1971); State v. Kaluna, 55 Hawaii 361, 520 P.2d 51 (1974). The reasonableness of a search within the meaning of the Fourth Amendment depends in large part on the facts and circumstances of the particular case. Often, the determination is made by a balancing of the individual's right to be free from arbitrary and unreasonable seizures and the governmental interest sought to be served.

Our decision in State v. Martinez, 59 Hawaii 366, 580 P.2d 1282 (1978), is dispositive of the seizure of the balloon in this case. There, we reviewed the reasonableness of a prison strip search in which a plastic packet of marijuana was seized from defendant-visitor's body cavity. We upheld the search, finding defendant's consent to the search to be established in view of defendant's notice that entrance to the prison required all visitors to submit to a search and in view of the fact that she had submitted to such a search on previous occasions. Stressing the state's strong and legitimate interest in institutional order and security at the prison, we balanced this interest against the scope and manner of the search. On balance, we found the search to be not more intrusive than was necessary in light of its justifications.

In the present case, the record indicates that appellee had visited the prison previously on numerous occasions and had consented to strip searches on all these occasions. Furthermore, the sign indicating that all visitors would be subjected to a search was posted at the front gate to the prison and it is reasonable to assume that appellee was or should have been aware that it was prison policy to condition entry on submission to a search. The search was not carried out in an oppressive or discriminatory manner. At no time during the search was any force used, nor did Matron Kau assist appellee in removing either her clothes or the balloon. ³

Judge Au relied on State v. Kaluna, supra, to find that appellee did not voluntarily consent to the production of the balloon in response to Matron Kau's request. He found appellee's surrender of the balloon a "submission to authority" and under Kaluna, supra, an act that did not constitute an understanding and intentional waiver of a constitutional right. ⁴

Although initially persuasive authority for suppression of the balloon in this case, the Kaluna case can be distinguished. There, defendant had been arrested for attempted robbery and was in custody at the police station. Her freedom was curtailed and she was subject to search whether or not she would have consented. Thus, her "voluntary submission" of the packet to the matron was not a true consent to the search. As part of her detention and entrance into jail, search of her person for weapons or fruits of the crime would have been proper as a search incidental to a lawful arrest or under the "jailhouse search exception" to prevent weapons or harmful drugs from entering the prison or to inventory her personal belongings. State v. Hanawahine, 50 Hawaii 461, 464, 443 P.2d 149, 151-152 (1968); State v. Kaluna, supra.

Here on the other hand, appellee was a visitor to the prison, free to leave whenever she so chose. Search of her person and production of the balloon was only a condition of entry to the prison. To avoid the search appellee need only have refrained from seeking admission. State v. Martinez, supra. Thus, unlike in Kaluna, the search of appellee was conducted with her full knowledge and freely given consent. In light of all these circumstances, including the reasonable manner in which the search was carried out, we find the seizure of the balloon constitutional.

II

The State argues that its examination of the balloon's contents was justified without a warrant because the search was incident to a lawful arrest. It contends that a number of factors were present which in combination, constitute the probable cause required for appellee's arrest. However, notwithstanding the existence of probable cause, the justifications for the search incident to lawful arrest exception (to preserve evidence of the crime or to protect the arresting officer from weapons within defendant's reach) are absent here. In Kaluna, supra, the matron's recovery and subsequent opening of a tissue packet containing drugs found in defendant's brassiere was unreasonable because from an objective standpoint it was unlikely that the small packet secreted a weapon which the...