State v. Jerome

• Decision Date: 05 May 1987
• Docket Number: No. 11050,11050
• Citation: 69 Haw. 132,736 P.2d 438
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Brian Kevin JEROME, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 438

736 P.2d 438

69 Haw. 132

STATE of Hawaii, Plaintiff-Appellee, v. Brian Kevin JEROME, Defendant-Appellant.

No. 11050.

Supreme Court of Hawai'i.

May 5, 1987.

Syllabus by the Court

1. In the circumstances of this case, the temporary seizure of a closed container, on a reasonable suspicion of illegal activity, and the holding of the same for 30 minutes, pending arrival of a trained dog to sniff the same, did not violate either the Fourth Amendment of the Constitution of the United States or Article I, section 7 of the Constitution of the State of Hawaii.

2. Given the facts in this case, the seizure and detention, for 30 minutes pending a dog-sniff of the closed container in question, was based upon probable cause.

Gary N. Oakes, Office of the Public Defender, Honolulu, for defendant-appellant.

Alexa D.M. Fujise, Office of the Pros. Atty., Honolulu, for plaintiff-appellee.

Before LUM, C.J., NAKAMURA, PADGETT and HAYASHI, JJ., and BURNS, Chief Judge, Intermediate Court of Appeals in place of WAKATSUKI, J., Excused.

PADGETT, Justice.

This is an appeal from a conviction for promoting a detrimental drug in the first degree (HRS § 712-1247(1)(e)). Appellant urges that the court below erred in not suppressing as evidence, the 2.2 pounds of marijuana found, after a search pursuant to a warrant, in a cardboard box seized from appellant. Secondly, appellant contends that he had the ineffective assistance of counsel at the hearing on the motion to suppress in that counsel did not properly pursue the motion that had been filed to obtain the name and address of the informant. We affirm.

At approximately 3:20 p.m., April 17, 1984, agent John D. McCarthy received a telephone call from a confidential informant that a Caucasian male had arrived from Hilo and possessed a brown suitcase and a cardboard box sealed with gray tape. The informant told McCarthy that the cardboard box contained marijuana by the individual's own admission, and that the individual, who was in possession of the box, was in or near a green AMC Rambler in front of the baggage claim areas 9 and 10 at the Honolulu International Airport. Agent McCarthy immediately went to the location in question and, at 3:25 p.m., saw appellant seated in a green Rambler. Approaching the appellant, he noted a cardboard box sealed with gray tape on the backseat. Appellant identified himself as Brian Kevin Jerome by means of a Washington state driver's license. The informant, whom agent McCarthy knew and believed to be reliable because of his use on two prior occasions, was nearby, and personally identified appellant as the individual who had informed him that he had marijuana in the cardboard box. McCarthy asked appellant to consent to a search of the box and, when appellant refused, informed him that the box would be temporarily detained until a trained narcotics dog could sniff the box. At 4:00 p.m., the dog sniffed the box and identified it as containing marijuana. The agent promptly prepared an affidavit and search warrant, and took them to a district judge who signed the warrant, the box was searched, and found to contain the marijuana in question.

Appellant contends that the detention from approximately 3:30 p.m. to 4:00 p.m. of the box, prior to the dog-sniff, was an unconstitutional seizure, relying on United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), which held that temporary seizures on reasonable suspicion and without warrant pending a dog-sniff could be constitutionally valid, but that the 90-minute delay in that case was impermissible. We have followed Place with respect to challenges to a dog-sniff on the...