State v. Kanda, Cr. N
| Decision Date | 17 December 1980 |
| Docket Number | Cr. N,No. 6880,6880 |
| Citation | 63 Haw. 36,620 P.2d 1072 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Ruth KANDA, Defendant-Appellant (os. 5055 & 4933), Masato Bentosino, Defendant-Appellant (os. 5056 & 4934), David Waki, Defendant-Appellant (os. 5057 & 4935), David Kim, Defendant-Appellant (os. 5058 & 4936), Yoshio Tanaka, Defendant-Appellant (os. 5059 & 4937), Kazuyoshio Yamanishi, Defendant-Appellant (os. 5060 & 4938), and Gordon Nagata, Defendant-Appellant (os. 5061 & 4939). |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The Fourth Amendment to the United States Constitution and Article I, § 7 of the Hawaii State Constitution mandate that no search warrant shall issue unless there is a finding of probable cause, supported by oath or affirmation, and particularly describing the place to be searched.
2. The United States Supreme Court has established a two-prong test to determine whether an affidavit is sufficient to support a finding of probable cause: (a) the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the contraband articles were where he claimed they were, and (b) some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, was credible or his information reliable.
3. Where an affidavit in support of a search warrant relies upon an informer, it must reveal an adequate basis for the informer's conclusion regarding the location of the objects sought to be recovered and must further demonstrate that the affiant's trust in the informer's credibility was warranted.
4. Where it is averred in an affidavit that an informer had in the past three years given affiant information regarding criminal activities on at least fifteen occasions and on at least each occasion the information was corroborated, the informer should be considered credible and reliable.
5. A citizen informer is entitled to a presumption of reliability.
6. We have held that information provided by an eyewitness informer to a crime is reasonable trustworthy and no showing of reliability or credibility is required in the affidavit.
7. The commissioner must judge for himself the persuasiveness of the facts relied on by the complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion.
8. Even paying great respect to the specialized knowledge of the police officer in this situation, we cannot say that the conduct described in the affidavit was susceptible of only one interpretation-criminal activity. Although defendant's conduct was suspicious he may have been entering the apartment building for innocent purposes totally unrelated to the gambling operation, and thus his conduct would not sustain a finding of probable cause.
9. The facts and circumstances presented in the affidavit must be sufficient for a reasonably cautious or prudent person to conclude that items sought in connection with the crime are probably located within the premises to be searched at the time the warrant is issued.
10. Where the facts and reasonable inferences from those facts are capable of supporting the district court judge's finding of probable cause, his determination will be upheld on review, even though other inferences from those facts may support a different conclusion.
11. We will not invalidate a warrant by interpreting the affidavit in a hypertechnical, rather than a common sense manner.
12. Although the reviewing court will pay deference to judicial determinations of probable cause, the court must insist that the magistrate perform his neutral and detached function and not serve merely as a rubber stamp for the police.
David C. Schutter and Randall Y. K. Char, Honolulu (Schutter, O'Brien & Weinberg, Honolulu, of counsel), for Kanda, Bentosino, Tanaka & Nagata, defendants-appellants.
John T. Vail, Wailuku, Maui, for Waki, Kim & Yamanishi, defendants-appellants.
James Takayesu, Deputy Prosecutor, County of Maui, and Boyd P. Mossman, Pros. Atty., Dept. of the Public Prosecutor, County of Maui, for State of Hawaii, plaintiff-appellee.
Before RICHARDSON, C. J., OGATA and MENOR, JJ., and LUM, Circuit Judge, assigned by reason of vacancy. *
On September 1, 1977, the herein named seven defendants-appellants, Ruth Kanda, Masato Bentosino, David Waki, David Kim, Yoshio Tanaka, Kazuyoshi Yamanishi and Gordon Nagata (hereinafter appellants), were indicted by the Maui County Grand Jury and each was charged with the offense of possession of gambling records in the first degree in violation of HRS § 712-1224(1). 1 The indictment returned against appellant Kazuyoshi Yamanishi contained an additional count which charged him with the offense of promoting gambling in the first degree in violation of HRS § 712-1221(1)(a); 2 the indictment returned against appellant Gordon Nagata contained three additional counts which charged him with the offenses of promoting gambling in the first degree also in violation of HRS § 712-1221(1)(a). Possession of gambling records in the first degree and promoting gambling in the first degree are classified under our penal code as class C felonies. 3
On September 8, 1977, all seven appellants appeared before the court below and pleaded not guilty to all charges and demanded jury trial.
On November 8, 1977, the trial court denied appellants' motion to suppress. The appellants have brought this interlocutory appeal from that order of denial pursuant to HRS § 641-17. 4
We are thus presented with the single question of whether the affidavits provided a sufficient basis for the district court judge to conclude that probable cause existed for the issuance of the search warrants.
The record for each of these cases contains the affidavit of Lt. Howard Tagomori of the Vice Division of the Maui Police Department, and the supplemental affidavits of Lt. Ng of the Criminal Intelligence Division and officer Baisa of the C.I.S. of the Maui Police Department.
The principal affidavit furnished to the district court judge by Lt. Tagomori included the usual prefatory remarks that "he has reason to believe that during the early evening hours of Friday, December 17, 1976, there will be concealed within the premises described in the Search Warrants presented to your Honor along with this affidavit 'Parley,' 'Betting' or 'Point-spread' slips used in bookmaking which show names of football teams and point spreads for football games, and writings, papers, instruments or articles of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise including records of wagers placed in the bookmaking scheme; ...."
Thereafter, the affidavit generally described the six-five ( 6/5) and parley betting operations on the island of Maui. On Wednesdays, 5 the house distributed the betting slips to runners who then distributed them to sub-runners and ultimately to bettors. The betting slips listed the various football games for that week and the point spread between opposing teams. To bet 6/5, the bettor chooses a team in a particular game to win, using the point spread. If his team wins, the bettor wins $5.00; if his team loses, he must pay $6.00. To bet parley, the bettor chooses at least four teams in four games. All four teams must win and the return is nine to one. He may bet up to ten games and increase the odds. Bets were placed with bookies who reported the bets to their superiors or the house. All bets must be placed by Fridays at 6:00 p. m. On the following Tuesdays, Wednesdays, and Thursdays, the house distributed the moneys to the runners or bookies, who in turn paid the winners; and the runners also collected moneys from the losers for the house.
Affiant alleged that this investigation began in September of 1976, and continued until the issuance of the warrants. He further stated that all of the information set forth in his affidavit was described by informer # 1; that this informer related that the 6/5 operation started this season on Maui with three different books (organizations or houses); however, after some bickering among the three factions, Takeo Yamauchi ended up running the entire Maui operation; and that the subordinates of Yamauchi were Steven "Humpty" Sakamoto who ran the "Lahaina action," and Kazuo Yamanishi (hereinafter "Yama") and Takeshi Kitagawa who ran the central Maui operation. Informer # 1 related that the Lahaina operation and the central Maui operation were run separately, but the slips for central Maui came from Lahaina; that "(o)n occasion (usually) betting slips are delivered from Lahaina to Yama" but he sometimes went to Lahaina to pick up the slips from Humpty. This informer further related that the bookies or runners for the central Maui area were Al Oppenheimer, Ruth Kanda, Archie Fukutomi, Masato Bentosino, Melvin Mabe, David Kim, Gordon Nagata, Joseph Viela, Yoshio Tanaka, Natsuo Sato and David Waki. 6 In addition, there were other runners or sub-runners. After Yama received the betting slips, he distributed them to the runners for distribution to the bettors. Occasionally, Kitagawa distributed the slips to the runners. All bets must be reported to Yama by Friday evening; however, bets may be reported after Friday for Monday night football games and other occasions like Thanksgiving Day football games. Distribution of the betting slips was made either by the runners picking them up at Yama's house or by Yama or Kitagawa delivering them. After the weekend games were over, Yama contacted the runners and effected the collections and payoffs in cash.
Affiant further stated that on December 16, 1976, the day before the issuance of the search warrants, the informers told Officer Baisa and Lt. Ng that the betting slips had come out late that day.
The Fourth Amendment to the United States Constitution and Article I, § 7 7 of the Hawaii State C...
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