State v. Furuyama
| Decision Date | 17 December 1981 |
| Docket Number | No. 7182,Cr. N,7182 |
| Citation | 64 Haw. 109,637 P.2d 1095 |
| Parties | STATE of Hawaii, Plaintiff-Appellant, v. Lawrence FURUYAMA, also known as Lawrence Hozo Furuyama, Defendant-Appellee(o. 51097). STATE of Hawaii, Plaintiff-Appellant, v. Shigeru HIRATA, Defendant-Appellee (o. 51098). STATE of Hawaii, Plaintiff-Appellant, v. Quinda PINZARI, also known as Quindo Peter Pinzari, Defendant-Appellee (o. 51099). STATE of Hawaii, Plaintiff-Appellant, v. Raymond L. PETERMAN, also known as Raymond Leslie Peterman, Defendant-Appellee(o. 51100). STATE of Hawaii, Plaintiff-Appellant, v. Hilario BUMANGLAG, also known as Hilario Aluag Bumanglag, Defendant-Appellee(o. 51101). STATE of Hawaii, Plaintiff-Appellant, v. Wenceslao M. ALMODOVAR, Defendant-Appellee (o. 51103). STATE of Hawaii, Plaintiff-Appellant, v. Timi E. BLANCHARD, also known as Timi Edward Blanchard, Defendant-Appellee (o. 51107). STATE of Hawaii, Plaintiff-Appellant, v. Wilfred J. SHIGETA, also known as Wilfred Junichi Shigeta, Defendant-Appellee(o. 51108). STATE of Hawaii, Plaintiff-Appellant, v. Helen KOLONIE, Defendant-Appellee (o. 51109). STATE of Hawaii, Plaintiff-Appellant, v. Joseph GONZALES, Defendant-Appellee (o. 51114). STATE of Hawaii, Plaintiff-Appellant, v. Raymond L. PETERMAN, also known as Raymond Leslie Peterman, Defendant-Appellee(o. 51164). |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The State is not free to adopt whatever procedures it pleases for dealing with obscenity. There is a fine line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished, and the separation of legitimate and illegitimate speech calls for sensitive tools.
2. A mere conclusion of a police officer does not suffice as grounds for seizure where allegedly obscene materials are concerned, and the seizure of such evidence ordinarily must be preceded by some form of judicial procedure designed to focus searchingly on the question of obscenity.
3. A warrant for the seizure of expressive material may not be issued solely on the conclusory opinion of a police officer that it is obscene.
4. As an officer's conclusory opinion that arguably protected material is pornographic does not give rise to probable cause supporting the issuance of a warrant for its seizure, the opinion also cannot support the warrantless arrest of its seller.
5. Law enforcement practices employed in seeking evidence are not constitutionally regulated unless they are "searches" or "seizures" in the constitutional sense.
6. While implications of a search are inherent in any quest for evidence by the police, no one has ever suggested that every instance of such seeking is a search.
7. Constitutional provisions for the security of person and property are to be liberally construed, and it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.
8. The Fourth Amendment affords protection against unlawful searches and seizures, and its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority.
9. An ostensibly private search is nevertheless governmental action if instigated by the authorities or if government agents participated therein.
10. Where civilians act as agents of the police, the full panoply of constitutional provisions and curative measures applies.
11. A defendant's illegal arrest does not bar his subsequent prosecution. Suppression of the evidence obtained as a result of official lawlessness is the customary remedy for violations of a defendant's rights.
12. Warrantless seizures of arguably protected expressive material are prohibited, and the fruits of such seizures are excludable from trial. Patrick Border, Deputy Pros. Atty., Honolulu , for plaintiff-appellant.
Evan R. Shirley, Honolulu (Wesley H. Ikeda, Honolulu, with him on brief; Shirley & Jordan, Honolulu, of counsel), for defendants-appellees.
Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.
Procedures employed in the enforcement of HRS § 712-1214, promoting pornography, 1 are at issue in these eleven appeals by the State of Hawaii from orders of the Circuit Court of the First Circuit dismissing the charges against defendants-appellees (hereafter defendants) in four of the cases on grounds that the warrantless arrests of the defendants were without probable cause and suppressing evidence, including allegedly pornographic publications, in the other cases on grounds that the seizures breached constitutional guarantees against unreasonable searches and seizures. While we also conclude the pertinent seizures of persons and evidence failed to meet standards imposed by the First and Fourth Amendments of the federal constitution and Article I, §§ 4 and 7 of the State Constitution, we nevertheless find the charges in the four cases should not have been dismissed. Exclusion of the evidence from trial, in our opinion, was the proper remedy for the unreasonable seizures.
In disposing of the Motions To Dismiss or in the Alternative to Suppress Evidence filed by all defendants, the circuit court, with the parties' concurrence, divided the eleven cases into three groups on the basis of similarities in the dispositive facts. Substantial factual resemblances in State v. Furuyama, Cr. No. 51097, State v. Hirata, Cr. No. 51098, State v. Pinzari, Cr. No. 51099, State v. Kolonie, Cr. No. 51109, and State v. Gonzales, Cr. No. 51114, 2 allowed them to be considered together. State v. Peterman, Cr. No. 51100, State v. Bumanglag, Cr. No. 51101, State v. Almodovar, Cr. No. 51103, State v. Blanchard, Cr. No. 51107, and State v. Shigeta, Cr. No. 51108, comprised the second group of cases with corresponding fact situations. But the operative facts in State v. Peterman, Cr. No. 51164, were not deemed conducive to its consideration with either of the foregoing groups, and this case was treated separately.
The following circumstances in State v. Furuyama typified the situations in the first group of cases. A Honolulu police officer dressed to give the appearance of a Japanese tourist entered the establishment where Defendant Furuyama was a salesclerk and observed some magazines packaged in clear cellophane. He selected two of them and examined their front and back covers, paid defendant for them, and then waited for his "partner or assisting officer" in the doorway of the establishment. When the other officer arrived the defendant was arrested, and the money given him earlier in "purchase" of the magazines was seized as evidence. Since the publications in question were sealed in cellophane, the officer's examination of their content was limited to the front and back covers, on which sexual activity was depicted.
The circuit court concluded the inspection of the magazine covers furnished no grounds for a warrantless arrest of Defendant Furuyama. In its opinion, an examination of the allegedly pornographic publications in their entirety was a necessary prerequisite to a determination of their obscene content and character. Thus it ruled probable cause upon which a valid warrantless seizure could have been predicated was absent. The remedy for the unreasonable seizure of Defendant Furuyama and other defendants similarly situated favored by the court was dismissal of the prosecutions.
The facts representative of the situations in the second group of five cases were those in State v. Peterman, Cr. No. 51100. Upon direction of his superior and in quest of pornographic material, an officer assigned to the vice division 3 of the Honolulu Police Department proceeded to the bookstore where Defendant Peterman was employed. After browsing through the display of magazines, the officer selected one and leafed through half of it. He then proceeded to the cashier's counter with the magazine, engaged in a short conversation with defendant, expressed a desire to purchase the publication, and paid for it with what the officer termed "my pre-recorded $20 bill." When the change therefrom was returned, he disclosed his identity and presented his "police credentials," placed the defendant under arrest, and confiscated the "pre-recorded $20 bill" as evidence.
The circuit court found the officer's thumbing through half of the magazine furnished the necessary probable cause for defendant's warrantless arrest. It therefore did not follow the course of dismissal adopted in the previous category of cases headed by State v. Furuyama. However, it concluded the transaction yielding the evidence in State v. Peterman was not a "purchase" but a "preconceived" attempt to circumvent constitutional requirements, particularly those covering the seizure of evidence in first amendment situations. And in its opinion the appropriate remedy for the violation was the exclusion of the seized items from evidence. Hence, the evidence impounded by the police in the second group of cases exemplified by State v. Peterman was suppressed.
Raymond L. Peterman also was the defendant in the case where the circumstances did not parallel the situation in either of the foregoing categories. The relevant facts in State v. Peterman, Cr. No. 51164, as stipulated and agreed to by the parties were as follows: several citizens and a police officer proceeded to the bookstore where Peterman was employed; the private individuals leafed through several publications, decided they were pornographic in character and content, and handed them to the police officer; the officer then "purchased" the magazines, arrested the defendant, and impounded the publications as evidence of the crime for which the defendant was arrested.
Although the court recognized...
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