State v. Kealoha

• Decision Date: 23 June 1980
• Docket Number: 7395,Nos. 7357,s. 7357
• Citation: 613 P.2d 645,62 Haw. 166
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Gabriel Luka KEALOHA, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Joney PUA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 645

613 P.2d 645

62 Haw. 166

STATE of Hawaii, Plaintiff-Appellee, v. Gabriel Luka KEALOHA, Defendant-Appellant.

STATE of Hawaii, Plaintiff-Appellee, v. Joney PUA, Defendant-Appellant.

Nos. 7357, 7395.

Supreme Court of Hawai'i.

June 23, 1980.

Syllabus by the Court

1. Determinations on whether search warrants describe the things to be searched for and seized with sufficient particularity must be on a case-by-case basis, taking into account all of the surrounding facts and circumstances.

2. In deciding whether a search warrant describes things to be searched for and seized pursuant thereto with sufficient particularity, three factors merit paramount consideration: (1) the breadth of the warrant's apparent scope; (2) whether its execution would impinge upon vital rights and interests; and (3) whether the complexity and magnitude of the criminal activity being investigated would render a more particularized description difficult.

3. The cornerstone of a decision on warrant particularity is the language of the warrant itself.

4. Where no examples or other limiting language exists to effectively circumscribe the executing officer's search, warrant language directing the search for and seizure of "articles of personal property tending to establish . . . identification . . ." too closely resembles the wording of a "general warrant" to pass constitutional muster.

5. Where search and seizure may touch upon areas protected by the First Amendment or the right to privacy, courts should exercise care in seeing that warrant meets particularity requirement.

6. Where facts involved and crime being investigated are relatively uncomplicated, a dilution of the particularity requirement is not in order.

7. Where warrant is based on detailed affidavit reciting defendant's involvement in criminal activity, which affidavit provides an adequate basis for seizure of particularly described items, including contraband, offensive portion of warrant is properly severed from non-offensive.

8. Where warrant is in essence a "general warrant", it will be subject to total invalidation.

Steven K. Christensen, Hilo, for defendants-appellants.

Stanford H. Masui, Deputy Pros. Atty., Hilo (Gary M. Pakele, Deputy Pros. Atty., Hilo, on briefs), for State of Hawaii.

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

NAKAMURA, Justice.

These consolidated interlocutory appeals from orders of the Circuit Court of the Third Circuit denying, in part, defendants-appellants' motions to suppress evidence raise novel questions related to a constitutional mandate that search warrants particularly describe "things to be seized."

Defendant-appellant Joney Pua (hereafter "Pua") was indicted for promoting a detrimental drug in the first degree, in violation of HRS § 712-1247. Defendant-appellant Gabriel Luka Kealoha (hereafter "Kealoha") was also indicted for promoting a detrimental drug in the first degree; he was indicted on another count charging ownership or possession of firearms by a person convicted of certain crimes, in violation of HRS § 134-7. The indictments followed their simultaneous arrests on September 14, 1978, resulting from an aerial reconnaissance by the police of the Kalapana area on the island of Hawaii.

Kealoha thereafter filed motions to suppress evidence and to dismiss the indictment. That portion of Kealoha's motion where he sought to suppress statements obtained in disregard of his Miranda ¹ rights was granted; his attempts to suppress evidence seized under an allegedly overbroad warrant and to have the indictment dismissed ² were overruled. Pua likewise filed a motion to suppress evidence seized pursuant to the same warrant. The circuit court ordered the suppression of only "a roll of undeveloped Kodacolor film" but denied her motion in all other respects. Defendants-appellants appeal from the foregoing denials of the motions to suppress evidence.

I.

On September 16, 1978, two days after the arrests of Pua and Kealoha, Officer Yamabe of the Hawaii County Police Department submitted an affidavit to a district judge of the Third Circuit, stating in the detailed document that there was probable cause to believe instrumentalities of crime and other incriminatory material were to be found in and around a certain blue tent then being occupied by defendants-appellants. The district judge issued a search warrant on this basis, ³ authorizing a seizure of the following: "1. Marihuana and marihuana paraphernalia; 2. Articles of personal property tending to establish the identification of persons in control of the tent and premises; 3. .223 caliber cartridges.", purportedly located in the tent. Officer Yamabe, in executing the warrant, seized numerous items of personal property. ⁴

Two narrow questions are presented for determination here: 1. Is the language of a warrant authorizing a search for "articles of personal property tending to establish the identification of persons in control of the tent and premises" so broad that a seizure of evidence or evidentiary material pursuant thereto contravenes the particularity requirements in the state and federal constitutions? ⁵ 2. If the language is impermissibly broad, may it be severed from the rest of the warrant that particularly describes other articles subject to seizure so the articles particularly described can be used as evidence? We answer both questions in the affirmative.

II.

This court has had no occasion to pass on the requirement in the state constitution that search warrants particularly describe "things to be seized." ⁶ But as Fourth Amendment protections against unreasonable searches and seizures and the right to have unlawfully seized evidence excluded from trial have been incorporated into the applicable section of our constitution, we are guided here by relevant decisions of the Supreme Court of the United States. State v. Abordo, 61 Haw. 118, 121, 596 P.2d 773, 775 (1979); State v. Pokini, 45 Haw. 295, 308, 367 P.2d 499, 506 (1961). See also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).

In Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), the Supreme Court said:

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

275 U.S. at 196, 48 S.Ct. at 76. In discussing the historical background of the Fourth Amendment's adoption by the fledgling United States, quoting Boyd v. United States, 116 U.S. 616, 624, 6 S.Ct. 524, 528, 29 L.Ed. 746 (1886), the Court further stated:

"In order to ascertain the nature of the proceedings intended by the Fourth Amendment to the Constitution under the terms 'unreasonable searches and seizures,' it is only necessary to recall the contemporary or then recent history of the controversies on the subject, both in this country and in England. The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book;' since they placed 'the liberty of every man in the hands of every petty officer.' "

275 U.S. at 195, 48 S.Ct. at 529. (See Stanford v. Texas, 379 U.S. 476, 481-85, 85 S.Ct. 506, 509-511, 13 L.Ed.2d 431 (1965), reh. denied, 380 U.S. 926, 85 S.Ct. 879, 13 L.Ed.2d 813 (1965), for a more detailed review of the Amendment's genesis).

Determinations on specificity requirements, as in all search and seizure situations, must be on a case-by-case basis, taking into account all of the surrounding facts and circumstances. ⁷ And in deciding the validity of the language of a warrant that directed police to search for and seize "articles of personal property tending to establish . . . identification . . .", we believe three factors merit paramount consideration: (1) the breadth of the warrant's apparent scope, (2) whether its execution would impinge upon vital rights and interests such as the right to privacy, and (3) whether the complexity and magnitude of the criminal activity being investigated would render a more particularized description of seizable articles difficult.

1. The Language Of The Warrant.

The cornerstone of a decision on particularity is, of course, the language of the warrant itself and Stanford v. Texas, supra, furnishes us guidance here. The Supreme Court in Stanford invalidated a warrant authorizing a search for and seizure of "books, records, pamphlets, cards, receipts lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas, and the operations of the Communist Party in Texas.'' Id. at 478-79, 85 S.Ct. at 508. In concluding the warrant belonged to a prohibited genre the Court said, "(W)e think it is clear that this warrant was of a kind which it was the purpose of the Fourth Amendment to forbid a general warrant." Id. at 480, 85 S.Ct. at 509.

A significant case of recent vintage is Aday v. Superior Court of Alameda County, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961), where a search warrant setting forth numerous articles ⁸ to be seized was deemed invalid because its sweeping language caused it to closely resemble the condemned "general warrant". The California Supreme Court held that except for a set of tax returns (which was suppressed on other grounds) and two named books, the warrant "did not constitute legal authorization to search for or seize the articles." Id. at 796, 13 Cal.Rptr. at 419, 362 P.2d at 51. Thus, an all-embracing characterization of evidence sought...