State v. Jenkins

• Decision Date: 07 November 1980
• Docket Number: No. 7465,7465
• Citation: 619 P.2d 108,62 Haw. 660
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Moses JENKINS, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 108

619 P.2d 108

62 Haw. 660

STATE of Hawaii, Plaintiff-Appellant, v. Moses JENKINS, Defendant-Appellee.

No. 7465.

Supreme Court of Hawai'i.

Nov. 7, 1980.

Syllabus by the Court

1. Warrantless searches are unreasonable unless they fall within one of the specifically established and well delineated exceptions. We have long recognized that automobile searches may be excluded from the warrant requirement. The investigation officer must have probable cause for the search and exigent circumstances must exist for proceeding without a warrant.

2. The term 'exigent circumstances' is incapable of precise definition and 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 foreseeable risk that it might be moved or that evidence which it contained might be removed or destroyed before a warrant could be obtained.

3. 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. Arthur E. Ross, Deputy Pros. Atty., Honolulu (Peter B. Carlisle, Deputy Pros. Atty., Honolulu, on opening brief), for plaintiff-appellant.

Christopher D. Ferrara, Honolulu (Robinson & Ferrara, Honolulu, of counsel), for defendant-appellee.

Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.

LUM, Justice.

This is an appeal by the State of Hawaii from an order of the circuit court suppressing the State's use as evidence in its prosecution against the defendant contraband drugs discovered by the police in a knapsack belonging to the defendant. The circuit court had held that the search of the knapsack was unconstitutional. ¹ The State urges error by the trial court on two grounds: Since the knapsack was recovered by the police during a legal search of an automobile in which defendant was a passenger, the automobile exception to the warrant requirement under the constitution permitted the police to search the knapsack without a warrant. Because the defendant had already been arrested for possession of marijuana, the search of the knapsack was incidental to his arrest. Having examined the arguments of the State, we reject both arguments and uphold the order of the lower court.

I

In the afternoon of January 15, 1979, two officers of the Honolulu Police Department were on duty in Waikiki. One of the officers smelled the odor of burning marijuana. They then approached a van occupied by defendant and another person; the arresting officer observed a plastic bag containing marijuana on top of a knapsack on the floor of the van on the passenger side occupied by defendant. He seized the marijuana and placed the defendant under arrest. The other officer in the meantime was occupied with the other passenger on the other side of the van. After defendant's arrest, defendant was taken to the front of the vehicle. At that point, the arresting officer was instructed by the other officer 'to return back and check out the knapsack.' The van was then searched, the knapsack seized and opened, wherein the drugs were discovered. Defendant was again placed under arrest for promoting dangerous drugs.

II

It is well established in this jurisdiction that warrantless searches are unreasonable unless they fall within one of the specifically established and well delineated exceptions. State v. Kender, 60 Haw. 301, 307, 588 P.2d 447, 451 (1978); State v. Elderts, 62 Haw. ----, 617 P.2d 89 (No. 7116, September 23, 1980). We have long recognized that automobile searches may be excluded from the warrant requirement. The investigation officer must have probable cause for the search and exigent circumstances must exist for proceeding without a warrant. State v. Agnasan, 62 Haw. ----, 614 P.2d 393 (1980); State v. Elliott, 61 Haw. 492, 605 P.2d 930 (1980); 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).

We stated in Elliott, supra, that what has become obvious is that the term 'exigent circumstances' is incapable of precise definition 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 evidence which it contained might be removed or destroyed before a warrant could be obtained.

The question presented on this appeal--whether beyond a search of the automobile itself, and in this case to a search of the knapsack found on the floor of the van--has never been answered in this jurisdiction.

Two recent U.S. Supreme Court cases may help to formulate our decision on this issue. In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), a double-locked footlocker, which federal agents had probable cause to believe contained narcotics, was seized by federal agents along with the automobile into which it had been loaded. The trunk and the automobile were taken to the Federal Building. The footlocker was then opened without a warrant.

The U.S. Supreme Court held the search to be constitutionally invalid, stating:

By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. . .. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.

Id. at 11, 97 S.Ct. at 2483.

The State in this appeal argues, as the government did in Chadwick, that the rationale used to uphold automobile searches inheres to luggage found pursuant to such automobile searches.

We adopt the language of Chadwick in rejecting the State's argument:

The answer lies in the diminished expectation of privacy which surrounds the automobile:

'One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . .. It travels public thoroughfares where both its occupants and its contents are in plain view.' Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).

Other factors reduce automobile privacy. 'All States require vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.' Automobiles periodically undergo official...