State v. Hanson

• Decision Date: 14 May 2001
• Docket Number: No. 22847.,22847.
• Citation: 34 P.3d 7,97 Haw. 77
• Parties: STATE of Hawai`i, Plaintiff-Appellant, v. William HANSON, Defendant-Appellee.
• Court: Hawaii Court of Appeals

34 P.3d 7

97 Haw. 77

STATE of Hawai`i, Plaintiff-Appellant, v. William HANSON, Defendant-Appellee.

No. 22847.

Intermediate Court of Appeals of Hawai`i.

May 14, 2001.

Certiorari Granted June 18, 2001.

Caroline M. Mee, Deputy Prosecuting Attorney, City and County of Honolulu, for plaintiff-appellant.

Hayden Aluli, Honolulu, for defendant-appellee.

BURNS, C.J., LIM and FOLEY, JJ.

Opinion of the Court by FOLEY, J.

Plaintiff-Appellant State of Hawai`i (State) appeals from the August 26, 1999, "Findings of Fact, Conclusions of Law and Order Granting Defendant Hanson's Motion to Suppress Evidence, Filed July 9, 1999." The evidence suppressed by the District Court of the First Circuit (district court) order was a firearm taken from Defendant-Appellee William Hanson's (Hanson) toolbox by a security officer at the Honolulu International Airport. Hanson was subsequently charged with Failing to Register a Firearm in violation of Hawaii Revised Statutes (HRS) §§ 134-3(a) (1993)¹ and 134-17(b) (Supp.2000).² We vacate the district court's August 26, 1999, "Findings of Fact, Conclusions of Law and Order Granting Defendant Hanson's Motion to Suppress Evidence, Filed July 9, 1999" and remand for further proceedings consistent with this opinion.

I.

In its order granting Hanson's Motion to Suppress Evidence, the district court made the following findings of fact and conclusions of law:

FINDINGS OF FACT

1. At about 7:00 a.m. on June 11, 1999, at around the middle of the Honolulu International Airport Hawaiian Airlines ticket counter, Honolulu Airport security officer Frederick Garringer asked Defendant HANSON to open his large wooden tool box.

2. HANSON, who was scheduled to depart Honolulu on a Hawaiian Airlines flight to Kailua-Kona, had checked in numerous luggage and personal property, along with his wooden tool box, at the Hawaiian Airlines counter.

3. Garringer, who was operating an x-ray screening device, wanted to look into HANSON's tool box because the x-ray machine could not identify all of the items within the tool box.

4. HANSON orally consented to the search of his tool box and opened the combination lock of the tool box.

5. While looking through HANSON's tool box, which contained various carpenter tools, Garringer came across a tan plastic bag wrapped in black duct tape.

6. Garringer wanted to search the contents of the plastic bag and could have, pursuant to standard operation procedures, re-scanned the plastic bag through the x-ray machine.

7. Instead of re-scanning the plastic bag, Garringer testified at the suppression hearing that he asked HANSON for permission to search the plastic bag.

8. HANSON also testified at the suppression hearing. HANSON testified that Garringer did not ask him for his permission to search the plastic bag. Instead, Garringer proceeded to open the plastic bag without first obtaining HANSON's consent.

9. HANSON is more credible than Garringer with respect to whether Garringer had asked HANSON for permission to search the plastic bag.

10. Under the totality of circumstances in this case, HANSON did not freely and voluntarily consent to the search of the plastic bag found within his tool box.

11. Under the totality of circumstances in this case, HANSON did not voluntarily waive his right to be free from unreasonable searches and seizures.

12. After Garringer opened the plastic bag, he saw a ziplock bag containing a white cardboard box. Garringer opened this box and saw a black handgun in a leather holster.

CONCLUSIONS OF LAW

1. It is well-settled that a warrantless search of items or premises in which a defendant has a legitimate expectation of privacy is presumptively unreasonable. State v. Russo, 67 Haw. 126, 681 P.2d 553 (1984) (searches outside of judicial process without prior court approval are per se unreasonable, subject only to a few specifically established exceptions).

2. The government must overcome this presumption by proving that the search falls within one of the well-delineated exceptions to the warrant requirement. State v. Reed, 70 Haw. 107, 762 P.2d 803 (1988); State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985).

3. "A search conducted pursuant to voluntary and uncoerced consent by the person being searched is one of the exceptions to the warrant requirement." State v. Mahone, 67 Haw. 644, 646, 701 P.2d 171, 173 (1985). "Such an exception is applicable only if the right to be free from unreasonable searches and seizures is waived by the individual entitled to the right." Id. at 646-47, 701 P.2d at 173.

4. Under the totality of circumstances in this case, HANSON consented to the search of his tool box by unlocking the combination lock.

5. However, under the totality of circumstances in this case, HANSON did not freely and voluntarily consent to the search of the plastic bag found within his tool box.

6. Under the totality of circumstances in this case, HANSON did not voluntarily waive his right to be free from unreasonable searches and seizures.

II.

"We review a ruling on a motion to suppress de novo in order to determine whether it was right or wrong as a matter of law." State v. Ramos, 93 Hawai`i 502, 507, 6 P.3d 374, 379 (App.2000).

"The determination of whether a search was lawfully conducted is entirely a question of law, which this court reviews de novo under the right/wrong standard." State v. Wallace, 80 Hawai`i 382, 391, 910 P.2d 695, 704 (1996) (internal quotation marks omitted).

"[T]he findings of a trier of fact regarding the validity of consent to search must be upheld unless `clearly erroneous.'" State v. Patterson, 58 Haw. 462, 469, 571 P.2d 745, 749 (1977).

III.

The search of Hanson's wooden toolbox was conducted by Garringer, who the district court found to be a "Honolulu Airport security officer." Garringer testified he was employed by International Total Service (ITS), "a preboard screening security outfit." Garringer did not know whether ITS had "a contract with the airport or individual airlines." Garringer testified that ITS trained him to conduct x-ray screening pursuant to Federal Aviation Administration (FAA) regulations and directives. Garringer testified that these FAA regulations directed him to look for "hand grenades, pipe bombs, dynamite, opaques, . . . [and] handguns" when doing his "x-ray screening."

Hanson's Motion to Suppress Evidence asserted that Garringer's search and seizure of Hanson's firearm "was obtained as a result of a warrantless, nonconsensual search and seizure of HANSON's personal property in violation of Article I, §§ 5³ & 7⁴ of the Hawai`i State Constitution, as well as the Fourth Amendment⁵ to the United States Constitution."

The district court did not expressly decide that the search of Hanson's toolbox was a "governmental search." Such a decision was necessary to invoke article I, § 7 of the Hawai`i Constitution, and the fourth amendment to the United States Constitution (which prohibit unreasonable searches and seizures). State v. Boynton, 58 Haw. 530, 536, 574 P.2d 1330, 1334 (1978). We must determine whether the search of Hanson's toolbox by Garringer, a private individual, was conducted "at [the] government's initiation and under their guidance" to make the search a governmental search. Id. at 536, 574 P.2d at 1334.

Garringer testified that his search of Hanson's toolbox was done pursuant to FAA regulations. The Ninth Circuit Court of Appeals has concluded that airport searches of passengers' baggage by private individuals pursuant to FAA regulations are "within the reach of the Fourth Amendment" because of the significant participation of the government in the "development and implementation of the airport search program." United States v. Davis, 482 F.2d 893, 904 (9th Cir. 1973); see also United States v. Henry, 615 F.2d 1223, 1228 (9th Cir.1980)

.

The search of Hanson's toolbox by Garringer appears to have been pursuant to a screening system adopted by Hawaiian Airlines as mandated by FAA regulation 14 C.F.R. § 108.9 (1991), which provides:

§ 108.9 Screening of passengers and property.

(a) Each certificate holder required to conduct screening under a security program shall use the procedures included, and the facilities and equipment described, in its approved security program to prevent or deter the carriage aboard airplanes of any explosive, incendiary, or a deadly or dangerous weapon on or about each individual's person or accessible property, and the carriage of any explosive or incendiary in checked baggage.

(b) Each certificate holder required to conduct screening under a security program shall refuse to transport—

(1) Any person who does not consent to a search of his or her person in accordance with the screening system prescribed in paragraph (a) of this section; and

(2) Any property of any person who does not consent to a search or inspection of that property in accordance with the screening system prescribed by paragraph (a) of this section.

(c) Except as provided by its approved security program, each certificate holder required to conduct screening under a security program shall use the procedures included, and the facilities and equipment described, in its approved security program for detecting explosives, incendiaries, and deadly or dangerous weapons to inspect each person entering a sterile area at each preboarding screening checkpoint in the United States for which it is responsible, and to inspect all accessible property under that person's control.

(d) Each certificate holder shall staff its security screening checkpoints with supervisory and non-supervisory personnel in accordance with the standards specified in its security program.

State law makes the state Department of Transportation (DOT) responsible for the operation of the Honolulu International Airport, as well as other airports in the state that are not owned or operated by the United States. HRS Chapter 261 (Aeronautics). DOT is required to "cooperate with and assist the federal government . . . in the...