State v. Kaaheena

• Decision Date: 21 February 1978
• Docket Number: No. 5926,5926
• Citation: 575 P.2d 462,59 Haw. 23
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Dan K. KAAHEENA et al., Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 462

575 P.2d 462

59 Haw. 23

STATE of Hawaii, Plaintiff-Appellant, v. Dan K. KAAHEENA et al., Defendants-Appellees.

No. 5926.

Supreme Court of Hawai'i.

Feb. 21, 1978.

Syllabus by the Court

1. Although the police officers were trespassing on private property when the search was conducted, the mere occurrence of a technical trespass will not be dispositive of the search and seizure inquiry.

2. Whether a governmental intrusion is a search and seizure within the meaning of the Fourth Amendment of the United States Constitution depends on whether the defendant possessed a reasonable expectation of privacy as to the matters and areas intruded upon.

3. The test used in determining one's reasonable expectation of privacy is two-fold. First, one must exhibit an actual, subjective expectation of privacy. Second, that expectation of privacy must be one that society would recognize as objectively reasonable.

4. Where the occupants of a building drew the curtains and closed the venetian blinds covering a window, they enjoyed a "reasonable expectation of privacy" free from governmental intrusion even if there was a one-inch hole in the drapes and the blinds but that hole was high enough off the ground so that no one could look into the building.

5. The mere fact that a police officer may have possessed probable cause sufficient to support the issuance of a search warrant did not authorize him to engage in a warrantless search.

Kendall C. S. Wong, Deputy Pros. Atty., City and County of Honolulu, Honolulu, for plaintiff-appellant.

Vincent H. Yano, Honolulu, for defendants-appellees.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

RICHARDSON, Chief Justice.

Appellant, State of Hawaii, appeals from the judgment of the District Court of the First Circuit granting appellees' pretrial motion to dismiss and to suppress certain evidence.

We affirm.

On May 2, 1975, in the late evening, members of the vice squad of the Honolulu Police Department went to 914-916 Queen Street, Honolulu, to investigate certain violations of the gambling laws. The investigating officer testified that he had received numerous telephone calls alleging that gambling activity was taking place at that location. At approximately 8:30 p. m., he observed the lights to be on and heard sounds resembling the pounding of a dice cup. One of the windows of the building at that address was covered by drawn drapes and closed venetian blinds. But at the top of the window the drapes were sagging and there appeared to be a small hole in the blinds. Consequently, there was about a one-inch aperture in the top of the window through which one could look into the building. However, the hole was high enough off the ground that, by merely standing on the sidewalk, it would have been impossible to look through.

Upon their arrival, one of the officers stacked a crate upon a bench which was against the side of the building. By standing on the crate, he was able to peer through the one-inch hole into the building. The officer saw appellees engaged in the alleged gambling activities. The officers then entered the premises and arrested appellees. The officers had neither permission to enter the building nor a search warrant.

Appellees were charged with engaging in illegal gambling activity in violation of HRS § 712-1223 (Special Pamphlet, 1975). ¹ Appellees moved to suppress the evidence observed by the officers. On May 19, 1975 a hearing on the motion was held and the motion was denied. On May 23, 1975, appellees filed a motion for reconsideration. The motion was heard on June 3, 1975. At that time, the District Court of the First Circuit granted appellees' motion to dismiss and to suppress the evidence.

The sole issue determinative of this appeal is whether the officer's observations, made by standing on a crate stacked upon a bench and peering through a one-inch aperture in the window caused by a hole in the closed venetian blinds and a sag in the drawn drapes, constituted an unreasonable search and seizure? We answer the issue in the affirmative and affirm the judgment of the District Court.

In granting appellees' motion to dismiss and to suppress the evidence, the lower court based its decision on the fact that the officers had committed a technical trespass. ² The vantage point from which they peered into the window was immediately against the building. The boundary, however, extended at least eight feet out from the building. The officers were clearly trespassing on private property. However, if the officers were trespassing on private property, the trespass was so technical in nature that we should avoid making it dispositive of the instant case. While we affirm the judgment of the lower court, we do so on different grounds. State v. Stachler, 570 P.2d 1323, 1326 (Haw., 1977), citing Waianae Model Neighborhood Area Association v. City and County of Honolulu, 55 Haw. 40, 514 P.2d 861 (1973); Federal Electric Corp. v. Fasi, 56 Haw. 57, 527 P.2d 1284 (1974).

The Fourth Amendment of the Constitution of the United States guarantees each citizen a right to privacy against unreasonable governmental intrusions:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ³

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) is currently the leading case on the scope and application of the Fourth Amendment. In Katz, the United States Supreme Court held that the electronic bugging of a public telephone booth by governmental agents resulted in a search and seizure within the meaning of the Fourth Amendment. The impact of Katz was to expand the scope of protection afforded by the Fourth Amendment by limiting the rigid application of technical property doctrines in the law of search and seizure. Pursuant to Katz certain traditional "constitutionally protected areas" may no longer be afforded automatic constitutional protection. ⁴ Rather, the inquiry is restricted to an analysis of an individual's "reasonable expectation of privacy." State v. Boynton, No. 5912,574 P.2d 1330 (Haw. January 24, 1978).

(T)he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. (Citations omitted.) But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

Katz v. United States, 389 U.S. at 351, 352, 88 S.Ct. at 511.

The emergence and acceptance of the "reasonable expectation of privacy" test has resulted in the erosion of the traditional "trespass doctrine" of search and seizure law. It was previously held that the presence or absence of penetration or trespass was controlling as to the Fourth Amendment inquiry. Thus, in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), a closely divided United States Supreme Court decided that the wire tapping surveillance of private telephone conversations by governmental agents without any trespass was outside the scope of Fourth Amendment protection. While, pursuant to Katz, the technical doctrine of trespass no longer plays the determinative role in the search and seizure scenario, it is, nevertheless, a relevant factor in analyzing the extent of one's reasonable expectation of privacy. Instead of merely looking to whether the observer had trespassed onto private property, the inquiry now also concerns the nature and degree of privacy of the property involved. People v. Willard 238 Cal.App.2d 292, 47 Cal.Rptr. 734 (1st Dist. 1965).

In Lorenzana v. Superior Court, 9 Cal.3d 626, 108 Cal.Rptr. 585, 511 P.2d 33 (1973), it was held that a police officer's warrantless observations through a window of a private home constituted an illegal search and seizure. The officer's vantage point was from the side of the house having no doors or defined pathways. The court reasoned that since the area was not a public common use area and there was no implied permission extended to the public to enter, the defendants had a reasonable expectation of privacy.

On the other hand, in People v. Willard, supra, it was held that the police officers' warrantless observations from the steps leading up to a side door of defendant's house and through a screen door were not an illegal search and seizure. There was no reasonable expectation of privacy since the door, while situated well within defendant's private property, was a normal means of access to the house to which the public was impliedly invited.

Consequently, in the instant case, the fact that the officers' vantage point was on private property is not conclusive of the issue of the legality of their actions. The building housed a commercial establishment and some rental apartments. It was situated immediately adjacent to a public sidewalk. The area occupied by the officers was not in the exclusive control of any of the occupants of the building and was open to the public as a common use area.

Pursuant to Katz, since the doctrine of trespass alone may not be controlling, other factors may be looked to in determining the extent and possible violation of one's reasonable expectation of privacy. The test used in determining one's reasonable expectation of privacy is twofold. First, one must exhibit an actual, subjective expectation of privacy. Second, that expectation of privacy must be one that society would recognize as objectively reasonable. State v. Stachler, supra at 1326, citing Katz v. United States, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring).

The Fourth Amendment of the United States Constitution only affords protection against unreasonable governmental searches and...