State v. Goudy

• Decision Date: 13 January 1971
• Docket Number: No. 4933,4933
• Citation: 479 P.2d 800,52 Haw. 497
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. William Rollin GOUDY, II, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 800

479 P.2d 800

52 Haw. 497

STATE of Hawaii, Plaintiff-Appellee, v. William Rollin GOUDY, II, Defendant-Appellant.

No. 4933.

Supreme Court of Hawai'i.

Jan. 13, 1971.

Syllabus by the Court

1. A police officer may in appropriate circumstances and in an appropriate manner approach and stop a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.

2. Such an intrusion upon personal liberty must be reasonable and be based on something more substantial than inarticulate hunches, and that reasonableness is to be judged by an objective standard, namely, whether the facts known by the officer would warrant a man of reasonable caution to believe that the action taken was appropriate.

3. Mere approach with drawn pistols upon persons stopped for questioning is not an arrest.

Thomas P. Huber, Honolulu, for defendant-appellant (Cades, Schutte, Fleming & Wright, Honolulu, of counsel).

Douglas L. Halsted, Deputy Pros. Atty., City and County of Honolulu (Barry Chung, Pros. Atty., with him on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and MARUMOTO, ABE, LEVINSON and KOBAYASHI, JJ.

MARUMOTO, Justice.

This is an appeal by defendant William Rollin Goudy II from a circuit court judgment convicting him of possession of firearms by a person convicted of a crime of violence, in violation of HRS § 134-7(b). Defendant had previously been convicted of burglary, which, under the definition in HRS § 134-1, is a crime of violence.

The sole issue on appeal is whether the circuit court properly denied the defense motion for suppression of evidence. The items of evidence sought to be suppressed were one .22 caliber Marlin rifle, one 9 mm. Luger pistol, and one .32 caliber Walther pistol. The police obtained these items under the circumstances described below.

At 10 o'clock in the morning of June 23, 1969, Sergeant Carl Ledward of the Honolulu police department received an anonymous telephone call at the Kaneohe police station informing him that within an hour there would be a transaction in guns, diamond ring, and diamond watch, which the informant thought was illegal; that the transaction would take place at 127 Oneawa Street, Kailua; that the buyer would be driving a black Barracuda automobile; and that the passenger in the automobile would be the contact man to obtain the articles.

Upon receiving the telephone call, Ledward went to Kailua to check the address, but there was no house on Oneawa Street with the given number. However, together with Detective Donald Kamakea, whom he met at the Kailua police station, he kept a watch for an automobile fitting the informant's description at Andy's Drive-Inn on Oneawa Street.

At 11:10 o'clock, Ledward and Kamakea saw a black Barracuda, with driver and a passenger, proceed on Oneawa Street in the Kaneohe direction. The driver was later identified as James Kaaku. Defendant was the passenger.

Ledward and Kamakea followed the Barracuda in Kamakea's automobile, with Kamakea driving. Kamakea's automobile was used because it had no police insignia.

The Barracuda stopped in front of a house at 728 Oneawa Street. Kamakea drove past the Barracuda for about a block to the intersection of Oneawa Street and Oneawa Place, where he turned his automobile around and backed into Oneawa Place.

Ledward and Kamakea set up a surveillance of the Barracuda behind a growth of pine trees at the intersection. Ledward watched with his naked eyes. Kamakea used binoculars in making his observation.

On the surveillance, both Ledward and Kamakea saw defendant make the following movements: He got off the Barracuda, entered a nearby lane, and returned within a few minutes with a beige-colored case which appeared to contain a rifle. He placed the case in the back of the automobile, then went into the house at 728 Oneawa Street, returned with a brown paper sack, and got back into the automobile.

When defendant got back into the Barracuda, Kaaku turned the automobile around, and drove it back in the direction of Kailua town at a speed of about 20 miles, well within the legal speed limit.

Ledward and Kamakea again followed the Barracuda. Just before reaching the intersection of Oneawa Street with Kailua Road, Kamakea tooted his horn, and Ledward motioned to Kaaku to pull over. Instead of pulling over, Kaaku made an abrupt stop. The stop took place in front of the City Bank Building at 43 Oneawa Street. Ledward and Kamakea decided to stop the Barracuda at that location lest there might be a getaway if it was permitted to go beyond the intersection.

Up to this point, there was nothing furtive in the actions of Kaaku and defendant, and nothing to arouse any suspicion of criminal activity, except for substantial dovetailing of police observations with the information given in the anonymous telephone call. Neither Ledward nor Kamakea knew defendant. Ledward did not know Kaaku. Kamakea knew Kaaku as a musician, had heard that he was 'a member of the criminal world,' but was not sure that he was.

When the Barracuda stopped, Ledward and Kamakea approached it from different sides with drawn pistols. Ledward approached Kaaku from the left side of that automobile, and told him to get out. Kaaku did so with his hands up. Kamakea approached defendant from the right side, and opened the door to have him come out.

While making the approaches, both Ledward and Kamakea saw the butt end of a rifle sticking out from a case on the back seat of the Barracuda. In addition, when he opened the door to have defendant come out, Kamakea noticed the butt end of a pistol exposed from a package on the floor.

Upon seeing the rifle and the pistol in the Barracuda, Kamakea placed Kaaku and defendant under arrest for being offensively armed, and took them to the Kailua police station for booking. ¹ Defendant was formally charged on the day after the arrest with violation of HRS § 134-7(b), instead of for being offensively armed, which is a violation of HRS § 727-25. ²

The rifle Ledward and Kamakea saw on the back seat of the Barracuda was the .22 caliber Marlin rifle. The pistol Kamakea noticed on the floor was the 9 mm. Luger pistol. After the arrest, Kamakea found the .32 caliber Walther pistol between the bucket seats of the automobile. That pistol was fully loaded with one round in the chamber, and cocked.

In deciding the issue raised on this appeal, we must first inquire whether the stopping of the Barracuda by Ledward and Kamakea was a constitutionally permissible action.

On this point, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is apposite. That was a stop and frisk case. The case at hand involved stop only, and not a frisk. But the discussion there of considerations involved in constitutionally permissible street stops is pertinent.

Terry states that a police officer may 'in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest'; that this is warranted by the general governmental interest in effective crime prevention and detection; and that, given a state of facts, which separately may appear innocent but which taken together would warrant investigation, it would be poor police work to fail to make further investigation. However, it cautions that such an intrusion upon personal liberty must be reasonable and be based on something more substantial than inarticulate hunches, and that reasonableness is to be judged by an objective standard, namely, whether the facts known by the officer would warrant a man of reasonable caution to believe that the action taken was appropriate.

Here, circumstances were appropriate for Ledward and Kamakea to approach Kaaku and defendant to question them about possible criminal conduct.

The anonymous telephone call to Ledward did not justify arrest or search. But the call was a factor in the totality of circumstances which made the decision of Ledward and Kamakea to stop the Barracuda and approach its occupants for questioning reasonable.

Where, as here, the telephone call related to possible traffic in firearms, it would have been poor police work on the part of Ledward not to have followed up the given information. Dealings in firearms, and possession thereof, are very strictly regulated in HRS c. 134.

Also, it would have been poor police work on the part of Ledward and Kamakea not to have stopped the Barracuda and questioned its occupants when, upon surveillance, they observed facts which substantially corroborated the information in the telephone call. The observed facts might have been consistent with lawful activity. But they were also consistent with possible criminal activity.

Under such circumstances, a stop for brief inquiry, without more, does not constitute an arrest. It is stated in Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966):

'We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. * * * A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.'

Also, under similar circumstances, the mere approach with drawn pistols upon persons stopped for questioning is not an arrest. In Wartson v. United States, 400 F.2d 25, 28 (9th Cir. 1968), the...