State v. Kapoi

• Citation: 64 Haw. 130,637 P.2d 1105
• Decision Date: 17 December 1981
• Docket Number: No. 7304,7304
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Robert KAPOI, Defendant-Appellee.
• Court: Supreme Court of Hawai'i

Page 1105

637 P.2d 1105

64 Haw. 130

STATE of Hawaii, Plaintiff-Appellant, v. Robert KAPOI, Defendant-Appellee.

No. 7304.

Supreme Court of Hawai'i.

Dec. 17, 1981.

Syllabus by the Court

1. HRS § 803-3 permits the warrantless arrest of a person who is in the act of committing a crime by "any person present"; it presumably sanctions "citizen's arrests," an archaic process of common law origin which has been part of the statutory law of arrests in Hawaii since 1869.

2. HRS § 803-5 specifically authorizes warrantless arrests by police officers; it must be read in conjunction with HRS § 803-6, since the proper procedure for arrests, with or without warrants, is delineated in the latter section.

3. HRS § 803-5 as it read in 1978 approved the warrantless arrest of a person by a law enforcement officer when circumstances gave rise to a reasonable suspicion that the person had committed an offense. It also implicitly sanctioned a warrantless arrest for an offense committed in the officer's presence.

4. HRS § 803-6 was amended in 1975 to specifically authorize the optional use of a citation by the police in lieu of an arrest where the offense involved is a misdemeanor, petty misdemeanor or violation. But a legislative committee report accompanying the amendatory legislation clearly indicated that a police officer could still make a physical arrest if the situation necessitated such action.

5. Where the conduct involved in the putative offense consisted of the defendant's involvement in a disturbance and an obstinate refusal to remove himself from the scene that continued after the officer's arrival, the arrest was a reasonable law officer's response to the situation, though the offense was one of simple trespass.

6. A defendant charged with a minor offense unquestionably has a right to be free pending trial. But his freedom following arrest may nevertheless be conditioned upon giving bail in a modest sum reasonably calculated to assure his presence at trial.

7. The setting of bail for an alleged "violation" is a matter within the discretion of the Chief of Police or his designee. But the amount fixed should be commensurate with possible punishment for the offense and related to the defendant's pecuniary circumstances.

8. The Fourth Amendment of the federal constitution and Article I, § 7 of the State Constitution do not regulate law enforcement practices unless they constitute "searches" or "seizures," for these crucial words are terms of limitation.

9. While implications of a search are inherent in any quest for evidence by the police, every instance of such seeking is not a "search" in the constitutional sense.

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

11. Where the object observed by the police is in "open view," it is not subject to any reasonable expectation of privacy and the observation is not within the scope of the constitution.

12. The fact that a visual inspection of a vehicle's interior conducted by a police officer from a public vantage point is aided by a flashlight does not convert the scan of the interior into a constitutionally regulated search.

13. The presence of a firearm on the floor of a vehicle gives a police officer cause to believe that the owner of the car is violating HRS § 134-6 or HRS § 134-51.

14. But even an "open view" of possible contraband, without more, furnishes no basis for its seizure without a warrant. For "no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances.' "

15. The term "exigent circumstances" is incapable of precise definition. But where the proffered justification for a warrantless seizure of evidence from an automobile is the urgency involved, at the least there must be a showing 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 the evidence which it contained might be removed or destroyed before a warrant could be obtained.

16. Where a vehicle is exposed to the public in a neighborhood considered a "trouble spot" by the police and the evidence sheltered therein is a handgun, a warrantless seizure of the firearm is also justified by considerations of public safety.

John E. Tam, Deputy Pros. Atty., Wailuku (James B. Takayesu, Deputy Pros. Atty., Wailuku, on opening brief), for plaintiff-appellant.

Melvyn T. Yoshii, Wailuku (Mason, Yoshii & Scott, Wailuku, of counsel), for defendant-appellee.

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

NAKAMURA, Justice.

The legality of a warrantless seizure of a handgun from an automobile parked on a public street is at issue in this appeal by the State of Hawaii from an order of the Circuit Court of the Second Circuit suppressing the weapon as evidence in the prosecution of Defendant-appellee Robert Kapoi for an alleged violation of HRS § 134-7, felon in possession of a firearm. As a review of the circumstances leading to the seizure convinces us that the circuit court erred in suppressing the evidence, we vacate the order and remand the case for further proceedings.

I.

At about 1:00 a.m. on May 23, 1978, Officer Chong Kee of the Maui Police Department was dispatched to quell a reported disturbance at the Hale Kukui Hotel in Wailuku. Upon arrival, he was informed by the manager of the hotel that Defendant-appellee Robert Kapoi (hereafter defendant or Robert Kapoi) was causing a disturbance but was ignoring repeated requests to leave the premises. The officer was then led to the rear of the hotel where he observed an argument in progress between Robert Kapoi and a woman. Officer Chong Kee knew both participants in the dispute. The officer told Robert Kapoi that he should quit the premises, but the plea was ignored. And when further requests were of no avail, the officer arrested the defendant and conducted the customary quick search of the defendant's person for weapons, finding none. Robert Kapoi was then transported to the Wailuku Police Station and booked for an alleged breach of HRS § 708-815, simple trespass, a "violation" under the foregoing Penal Code provision.

Before the booking process was completed, Officer Chong Kee received a telephone call from the woman who had been involved in the altercation at the hotel. She informed him that the defendant had been carrying a handgun earlier; she also expressed a fear of Robert Kapoi and the possible harm that might befall her upon his release. Since the patdown at the time of arrest had uncovered no weapon, the officer had reason to believe the gun might be found at or near the scene of the arrest, possibly in defendant's vehicle which the officer had spotted on Vineyard Street near the Hale Kukui Hotel while on his earlier mission.

Proceeding to the parked vehicle, he surveyed its interior with the aid of a flashlight and saw what appeared to be the butt end of a handgun protruding from a holster-type gun case on the floor of the passenger compartment. He therefore backtracked to the police station for the necessary key, which was then in the custody of the police department due to defendant's detention. The officer then returned to the vehicle, opened a locked door, seized the handgun, and drove the vehicle back to the station, ostensibly for safekeeping pending defendant's release from custody. The officer there learned his supervisor had set bail for defendant's release pending trial at $75, but that defendant remained in custody because of his inability to post the required bail.

Thereupon, the defendant, who had been convicted of a felony previously, was charged with a violation of HRS § 134-7. ¹ Subsequent to the return of an indictment by the Grand Jury, defendant moved to suppress the gun as evidence on grounds that the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 4, 5, and 9 of the State Constitution had been breached in the relevant seizure. His primary thesis was that the seized firearm was subject to exclusion from evidence as "a fruit of the poisonous tree." ² The circuit court granted the motion after a hearing, and the State appeals from the pre-trial order, as authorized by HRS § 641-13(7).

II.

The State maintains the circuit court's holdings relative to the invalidity of the defendant's arrest and detention, implicit in the court's suppression order, are clearly erroneous. It argues (1) there is ample statutory authority supporting the arrest of a person for an alleged "violation," (2) the setting of bail at $75 under the circumstances involved was not unreasonable, and (3) the defendant's detention because of his inability to post bail in the required amount did not deprive him of liberty without due process. Hence, it contends that defendant's invocation of the "fruit of the poisonous tree" doctrine enunciated in Wong Sun v. United States, supra, and reiterated in State v. Kitashiro, supra, should be dismissed as groundless. We agree, for we see nothing about the initial arrest and subsequent detention of defendant for the putative "violation" that could be considered statutorily or constitutionally infirm.

A.

Defendant's argument with regard to the invalidity of his arrest is that simple trespass, deemed a "violation" by the Penal Code, ³ is not a "crime"; consequently there is no statutory authority to arrest a person for the commission of the offense. Pre-penal code law, he states, only recognized felonies and misdemeanors as crimes or offenses; so the statutory authorization for arrests was necessarily coextensive therewith. And when the Penal Code established a new class of noncriminal offenses called "violations," the scope of the law governing arrests, he claims, was not expanded to...