State v. Groves, 8250

• Decision Date: 14 July 1982
• Docket Number: No. 8250,8250
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Conrad Nikoli GROVES, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 366

649 P.2d 366

65 Haw. 104

STATE of Hawaii, Plaintiff-Appellant, v. Conrad Nikoli GROVES, Defendant-Appellee.

No. 8250.

Supreme Court of Hawai'i.

July 14, 1982.

Syllabus by the Court

1. It is well established in this jurisdiction that warrantless searches are unreasonable unless they fall within one of the narrowly defined exceptions.

2. A contemporaneous search incidental to a lawful arrest may be made for the fruits of the crime, implements used to commit the crime, and for weapons.

3. The mere surrender of personal possessions to a searching authority does not constitute a knowing waiver of the right to be free from unreasonable searches and seizures.

4. Whether a person possesses a reasonable expectation of privacy depends on whether (1) a person exhibits an actual expectation of privacy and (2) whether the expectation is one which society would deem reasonable.

5. What a person knowingly exposes to the public is not a subject of Fourth Amendment protection.

6. A police officer's sniffing of the air surrounding a person's suitcases does not constitute a Fourth Amendment intrusion.

7. A police officer's smelling of marijuana odors, pursuant to an informant's tip, can provide the officer with the requisite probable cause to seek a search warrant.

8. A person's reasonable expectation of privacy in luggage is limited to the contents and not the smells emanating from that luggage.

9. The legality of the use of narcotic-detecting dogs will depend on the circumstances of the particular case. This court will not condone the use of these dogs in general exploratory searches or for indiscriminate dragnet-type searches. Furthermore, we will require that the dog and its handlers be fully qualified through participation in an established drug enforcement training program.

Lila B. LeDuc, Deputy Pros. Atty., Honolulu (Arthur E. Ross, Honolulu, on the opening brief), for plaintiff-appellant.

Winston Mirikitani, Honolulu, for defendant-appellee.

Before RICHARDSON, C. J., and LUM, NAKAMURA, PADGETT and HAYASHI, JJ.

HAYASHI, Justice.

This appeal is brought by the plaintiff-appellant, the State of Hawaii (appellant hereinafter), from an order issued by the Honorable Simeon R. Acoba, Jr., Judge of the First Circuit Court, State of Hawaii. That order, filed on April 28, 1981, granted the defendant-appellee, Conrad Nikoli Groves' (appellee hereinafter), motion to suppress marijuana and LSD papers which were recovered from a search of the appellee's clothing and luggage. We affirm the suppression of the LSD paper found on appellee's clothing and reverse the suppression of the LSD paper and marijuana found in appellee's luggage.

The following facts were established at the hearing on the motion to suppress. On the morning of May 23, 1980, Robert J. Moloney, a co-pilot with the interisland airline Air Hawaii, noticed an odor that he believed to be marijuana emanating from a suitcase he was unloading from the compartment of the airplane ¹ which he had just co-piloted on a flight from Kauai. He notified the airline front counter supervisor, Keith Briton, who called the Honolulu Police Department (HPD). Jerry Snyder, an agent of the Drug Enforcement Administration (DEA) took the phone call and dispatched Detective Gary Kim, a HPD narcotics officer assigned to an airport task force, and HPD Officer Preston Abe to the Air Hawaii terminal to investigate. Mr. Briton informed the officers of the co-pilot's suspicions about the suitcases which had by then been stored in a room to the rear of Air Hawaii's business counter. Mr. Briton then pointed out the appellee to the officers.

Detective Kim approached the appellee, displaying his police badge, and told the appellee that he had reason to believe there was illegal contraband in his luggage and asked for his cooperation in the investigation. The appellee was informed of his constitutional rights but was told that he was not under arrest at that time. Asked by Detective Kim whether the bags were his, the appellee responded in the affirmative. The appellee then accompanied the officers to the HPD-DEA office. While there, Detective Kim noticed a strong odor of marijuana emanating from the appellee's luggage.

Twenty minutes later, DEA Agent Snyder arrived at the HPD-DEA office. Agent Snyder asked the two HPD officers if the appellee had been searched, and they replied in the negative. Agent Snyder then asked the appellee to stand up, patted him down, and asked the appellee to remove everything from his pockets. Appellee removed several items from his left front shirt pocket, among them, paper later discovered to be saturated with LSD. At that point, Detective Kim asked the appellee if he would sign an HPD consent to search form, but he refused. Upon further questioning, the appellee stated that if he let the officers open his bags, they might find some marijuana but that he had some mangoes in them. Detective Kim repeated his request to the appellee to sign the HPD consent form, but appellee again refused. Upon further questioning, the appellee indicated that he didn't have a permanent address. At that point, the officers placed appellee under arrest and informed him of his constitutional rights.

Soon thereafter, Detective Kim summoned Harvey Hisatake, a police officer assigned to a special narcotic unit stationed at the airport. Officer Hisatake brought along the HPD narcotics detection dog, Max, to check the luggage belonging to the appellee. After the appellee's luggage was relocated in different parts of the office, Officer Hisatake led Max on a search pattern in an attempt to locate any luggage containing contraband. The dog, Max, alerted Officer Hisatake ² to the two suitcases belonging to the appellee. After this identification, the appellee was arrested for a second time.

The suspected suitcases were kept in the possession of Officer Abe who obtained a search warrant from District Court Judge Edwin Honda the following day. The warrant was issued based on affidavits recounting the statements of the co-pilot Robert Moloney, Officer Abe, and Officer Hisatake. The search of the suitcases resulted in the discovery of a large quantity of marijuana sticks and dark blue blotter-type paper later determined to be saturated with LSD. After this evidence was discovered, the appellee was arrested for a third time while he was being held at a police cellblock.

On July 29, 1980, a three-count indictment was handed down against the appellee. Count I charged the appellee with the promotion of a detrimental drug in the first degree, in violation of Hawaii Revised Statutes (HRS) § 712-1247(1)(e), ³ for the marijuana found in his luggage. Count II charged the appellant with the promotion of a dangerous drug in the third degree, in violation of HRS § 712-1243, ⁴ for the LSD papers found on the appellee's person. Count III is similar to Count II, but pertains to the LSD papers found in his suitcase.

On December 23, 1980, the appellee filed a motion to suppress the evidence seized from his person and suitcases. In the memorandum in support of that motion, the appellee argued that the search of his body was not incidental to his arrest because he had not been placed under arrest at the time of the search. As for the search of his suitcases, the appellee argued that the search warrant was not validly issued because no probable cause to search had been demonstrated. At the suppression hearing of March 17, 1981, Judge Acoba orally ruled that the LSD papers found in the search of the appellee's person were to be suppressed because the search was not incident to a valid arrest. Judge Acoba also suppressed the LSD paper and the marijuana seized from the appellee's luggage, ruling that there was insufficient basis for the issuance of the search warrant. Specifically, Judge Acoba ruled that the affidavits presented to the magistrate did not constitute probable cause and that the use of the dog, Max, was itself a search which required a warrant.

I.

We address first the legality of the search conducted on the appellee's person while he was being detained at the HPD-DEA office. The appellant first argues that the search was legal because it was incident to a valid arrest. In support of this contention, the appellant cites this court's decision in State v. Delmondo, 54 Haw. 552, 512 P.2d 551 (1973), for the proposition that the magic words, "I put you under arrest," are not necessarily required for there to have been a valid arrest. It argues that under the facts of this case, the appellee had been placed under arrest because he was not free to leave the HPD-DEA office and because the officers possessed sufficient probable cause for the arrest.

It is well-established that warrantless searches are presumed unreasonable unless they fall within one of the narrowly-defined exceptions. Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2031-32, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Elderts, 62 Haw. 495, 498, 617 P.2d 89, 92 (1980); State v. Rosborough, 62 Haw. 238, 240-41, 615 P.2d 84, 86 (1980); State v. Kender, 60 Haw. 301, 307, 588 P.2d 447, 451 (1978); State v. Patterson, 58 Haw. 462, 467, 571 P.2d 745, 748 (1977). Furthermore, the government must bear the burden of justifying warrantless seizures. Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); State v. Rosborough, supra, 62 Haw. at 241, 615 P.2d at 86; State v. Dias, 62 Haw. 52, 57, 609 P.2d 637, 641 (1980). One type of search exempt from the warrant requirement is that conducted incident to a valid arrest. We have held that after a valid arrest has been made, a contemporaneous search may be made for the fruits of the crime, implements used to commit the crime, and for weapons. State v. Jenkins, 62 Haw. 660, 665, 619 P.2d 108, 112 (1980); State v. Park, 50 Haw. 275, 276, 439 P.2d 212, 213 (1968).

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