State v. Elliott

• Decision Date: 25 January 1980
• Docket Number: No. 6069,6069
• Citation: 61 Haw. 492,605 P.2d 930
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Robert ELLIOTT, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 930

605 P.2d 930

61 Haw. 492

STATE of Hawaii, Plaintiff-Appellee, v. Robert ELLIOTT, Defendant-Appellant.

No. 6069.

Supreme Court of Hawai'i.

Jan. 25, 1980.

Syllabus by the Court

1. In order for the automobile exception to the warrant requirement to apply, there must be a showing that at the time of the warrantless search and seizure there was probable cause to search, and the police must have had reason to believe that because of the car's mobility or exposure, there was a foreseeable risk that it might be moved or that the evidence which it contained might be removed or destroyed before a warrant could be obtained.

2. Exigent circumstances justifying warrantless search of a vehicle containing a cloth bag which police had reason to believe contained contraband existed where the bag was plainly visible from outside the vehicle; the activity of the defendant and the police concerning the bag had focused public attention upon it; and the automobile was parked in an open apartment parking area adjacent to a public street and was readily accessible to tenants and others.

Andrew S. Hartnett, II, Honolulu, for defendant-appellant.

James B. Takayesu, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and OGATA and MENOR, JJ. ^*

PER CURIAM.

The defendant was found guilty by a jury of violating the provisions of HRS § 712-1248(1)(c), promoting a detrimental drug in the second degree. He appeals from the judgment and sentence of the trial court. At issue is whether the trial court erred in denying the defendant's motion to suppress evidence taken from his automobile. The police were armed with a warrant to search his apartment, but they had none for his motor vehicle.

Suspecting the defendant of engaging in the drug traffic, and acting upon information acquired from an informant, the Maui police with the active participation of the informant arranged a "controlled" purchase of marijuana from the defendant. At approximately 3:30 p. m. on the appointed day, which was a Saturday, the informant repaired to the defendant's apartment while several members of the vice squad kept the building under surveillance from a discreet distance. Five police officers and a deputy county attorney were involved in the investigation. The police plan essentially was for the informant to purchase the drugs from the defendant, after which he was to give a pre-arranged signal as he left the building, if the sale had proceeded as planned.

Shortly after the informant entered the defendant's apartment, the police saw the defendant emerge from it and walk to his car which was parked in the apartment parking area. From the vehicle he removed a white cloth bag, resembling a 25-lb. rice bag, which he took back with him into the apartment. Shortly thereafter, the informant left the apartment and gave the pre-arranged signal that the sale had been consummated. After he left, the defendant again emerged from his apartment, accompanied this time by two males, Allen and Richard Edwards. The defendant was carrying a white cloth bag similar in appearance to that which he had earlier taken from his car. As the defendant approached his vehicle, Sgt. Tagamori radioed Officer Lee, who had been observing the defendant's movements from his own vehicle, to place him under arrest. As Officer Lee walked towards him, the defendant suddenly became aware of the officer's presence and threw the bag inside the car and locked the door. At that point Officer Lee placed him under arrest. The officer then took the defendant back to his apartment while Officer Baisa stood guard over the defendant's vehicle. The Edwards brothers followed Officer Lee and the defendant back into the apartment. Sgt. Tagamori was waiting for them when they arrived.

Sgt. Tagamori asked the defendant for the keys to his vehicle, but the latter refused. The officer thereupon advised him that they would have no alternative but to force open the door of the vehicle. Faced with this threat, the female in the apartment, one Michele Monier, produced the keys to the automobile. The sergeant tossed them down to Officer Baisa, who unlocked the car and recovered the white bag. It was found to contain marijuana. The bag could clearly be seen from outside the vehicle, but its outward appearance gave no indication of the nature of its contents. Lt. Cravalho, however, had radioed to his men earlier that according to the informant the marijuana which the defendant sold to him had come from a white bag.

At approximately 5:00 p. m., the police left the premises and drove the defendant and Ms. Monier back to the police station where they were both interrogated. Following the interrogation, Ms. Monier was placed under arrest on other charges unconnected with the incidents in this case. Neither of the Edwards brothers was arrested or charged. Prior to and at trial, the defendant moved to suppress the contraband seized from his automobile.

The issue in this case is, whether the white cloth bag and the contraband which it contained were lawfully seized by the police acting without a search warrant.

While it has been recognized that an automobile, because of its mobility, may be treated less stringently than a private residence for Fourth Amendment purposes, ¹ Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), a search and seizure involving a motor vehicle is still subject to the warrant requirement. Id. An automobile search without a warrant, however, would not be constitutionally proscribed where the search is conducted as an incident to a proper arrest, ² State v. Chong, 52 Haw. 226, 473 P.2d 567 (1970); Cf. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), or, assuming the existence of probable cause, where exigent circumstances are present. Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra; Carroll v. United States, supra. Accordingly, the Supreme Court has held that a search warrant is not required where there is probable cause to search an automobile stopped on the highway; and the car is movable, the occupants are alerted, and the car's contents may be subject to removal or destruction before a warrant can be obtained. Carroll v. United States, supra.

Exigent circumstances were also found to exist where the accused and his accomplices, after robbing a bank, were stopped and arrested by the police as they were fleeing from the scene of the crime. Instead of searching the car on the spot, the officers had it driven to the police station where it was searched without a warrant. The Court upheld the warrantless search. Chambers v. Maroney, supra. But in another case where the police had known of the probable role of the automobile in the crime; the defendant had been aware that he was under police investigation and had had ample opportunity to destroy any evidence connected with the crime; he was under arrest at the time of the warrantless search; the vehicle was parked in a private driveway where it was not likely to attract undue attention; the search did not involve contraband, stolen goods, or weapons; and there were no known confederates likely to remove the evidence, the Court found the warrantless search of the automobile to be constitutionally proscribed. Coolidge v. New Hampshire, supra. In that case the Court also observed:

"The police had ample opportunity to obtain a valid warrant; they knew the automobile's exact description and location well in advance; they intended to seize it when they came upon (the defendant's) property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves." 403 U.S. at 472, 91 S.Ct. at 2041.

The "automobile exception" to the warrant requirement first carved out by Carroll, and considered in Chambers and Coolidge, has been the focus of much appellate litigation over the years, and what has become obvious is that the term "exigent circumstances" is incapable of precise definition, United States v. McClain, 531 F.2d 431 (9th Cir. 1976), and that each case must be decided on its own facts. At the very least, however, there must be a showing that at the time of the warrantless search and seizure there was probable cause to search; and that the police had reason to believe that because of the car's mobility or exposure, there was a foreseeable risk that it might be moved or that the evidence which it contained might be removed or destroyed before a warrant could be obtained. United States v. Connolly, 479 F.2d 930 (9th Cir. 1973), Cert. denied 414 U.S. 897, 94 S.Ct. 248, 38 L.Ed.2d 139.

In Connolly, federal agents, with the aid of an informant, arranged to purchase drugs from the defendant. The first sale was consummated at the defendant's house. After negotiating with him for a second purchase, the officers obtained a warrant to search his house. This search apparently was timed to take place following the second sale. Agents that evening were deployed to keep the defendant's house under surveillance. The defendant appeared at his house after midnight, and the officers thereafter saw him drive...