State v. Kearns, 15451
| Decision Date | 04 February 1994 |
| Docket Number | No. 15451,15451 |
| Citation | 75 Haw. 558,867 P.2d 903 |
| Parties | STATE of Hawai'i, Respondent-Appellee, v. Michael KEARNS, Petitioner-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. A person is seized if, given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave. Whether a reasonable person would feel free to leave is determined under an objective standard.
2. The determination of whether a reasonable person would feel free to leave under the circumstances is reviewed de novo.
3. A person is seized when a police officer approaches that person for the express or implied purpose of investigating him or her for possible criminal violations and begins to ask for information.
4. The police may arrest an individual without a warrant if they have probable cause to believe that the individual is committing or has committed an offense.
5. The police may temporarily detain an individual if they have a reasonable suspicion based on specific and articulable facts that criminal activity is afoot.
6. The police may engage in an investigative encounter with an individual if the individual consents.
7. In the context of searches, the State may conduct an otherwise unconstitutional search if the person to be searched freely and voluntarily gives his or her consent.
8. The police are not required to inform a person to be searched of his or her right to refuse consent, but their failure to so inform is a factor to be considered in determining whether consent to a search was freely and voluntarily given.
9. Mere acquiescence to questioning, in and of itself, is insufficient to establish consent to an investigative encounter.
10. An investigative encounter can only be deemed "consensual" if (1) prior to the start of questioning, the person encountered was informed that he or she had the right to decline to participate in the encounter and could leave at any time, and (2) the person thereafter voluntarily participated in the encounter.
David Bettencourt, on the briefs, Honolulu, for petitioner-appellant.
James H.S. Choi, Deputy Pros. Atty., on the briefs, Honolulu, for respondent-appellee.
Carl M. Varady, Honolulu, for amicus curie American Civ. Liberties Union of Hawai'i Foundation.
Before KLEIN, Acting C.J., LEVINSON and NAKAYAMA, JJ., MELVIN K. SOONG, Circuit Judge, in place of MOON, C.J., recused, and HERBERT SHIMABUKURO, Circuit Court Judge, assigned by reason of vacancy.
Michael Kearns was charged with one count of Promoting a Dangerous Drug in the First Degree in violation of Hawai'i Revised Statutes (HRS) 712-1241(1)(a)(i) (Supp.1992) and one count of Promoting a Dangerous Drug in the Second Degree in violation of HRS 712-1242(1)(b)(i) (Supp.1992). The circuit court denied Kearns's pre-trial motion to suppress evidence and, in a subsequent jury-waived trial, found him guilty as charged. The Intermediate Court of Appeals (ICA) affirmed the denial of the motion to suppress and the subsequent convictions in a published opinion. State v. Kearns, No. 15451, slip op. (Haw.App. Feb. 4, 1993), cert. granted, --- Haw. ----, 849 P.2d 81 (1993).
We subsequently granted Kearns's petition for a writ of certiorari to review the ICA's decision. For the reasons set forth below, we vacate Kearns's convictions, reverse the
order denying his motion to suppress, and remand to the circuit court for the entry of an order dismissing the charges against him. In addition, we order depublication of the ICA's opinion.In the early afternoon of August 30, 1989, Officer Timothy Slovak (Officer Slovak) of the Honolulu Police Department's Narcotics Division was monitoring the passengers arriving at Honolulu International Airport on a flight from Los Angeles, which, according to Officer Slovak, is a "drug source city." Kearns was one of the first people to exit the plane, was wearing a jacket, and had one carry-on item (a suit bag). Kearns, instead of boarding a nearby shuttle bus, walked quickly and directly to the baggage claim area. While Kearns walked to the baggage claim area, he reached around and "fondled" his middle back area, as if adjusting something under his clothing. Upon entering the baggage claim area, Kearns "looked around in the claim area as if looking for something or someone." When his suitcase arrived on the luggage carousel, Kearns immediately picked it up and headed towards the exit. Kearns stopped momentarily approximately ten feet from the exit and it "appeared ... he was looking out the door for maybe someone to show up at the curb."
Officer Slovak, armed but dressed in jeans and a T-shirt, approached Kearns, identified himself as a police officer assigned to the narcotics division, displayed his badge, and asked for some time to speak with Kearns. Officer Slovak described his attitude towards Kearns as "polite with a moderate voice." Kearns said "sure" to the officer's request and asked if there was a problem. Officer Slovak told Kearns that he was involved in drug interdiction, was trying to stop narcotics coming in through the airport, and that his actions were "routine." Officer Slovak did not, however, tell Kearns that he was free to leave at any time or that he was free to decline to answer any questions.
Officer Slovak then asked to see Kearns's airline ticket and driver's license. Kearns complied with the requests, and with trembling hand, gave Officer Slovak his ticket and driver's license. After noticing that the ticket was for a one-way trip, was purchased that day with cash, and that the names on the ticket (Tom Hall) and driver's license (Michael Kearns) did not match, Officer Slovak asked Kearns questions regarding where he lived, his employment, and the name discrepancy. Kearns answered these questions and asked if travelling with someone else's ticket was illegal. Officer Slovak allegedly responded, "no, but drug smugglers use it all the time."
At that point, more people began to proceed through the exit, and Officer Slovak asked Kearns to move further inside the terminal. Officer Slovak then asked to search Kearns's bags. Kearns again complied and watched as Officer Slovak searched his bags. No contraband was found in any of Kearns's bags. After completing the search of the bags, Officer Slovak returned Kearns's ticket and driver's license. During this time, Officer Slovak felt that Kearns was "overcooperative," 1 was sweating more than would be normal, and appeared nervous because his hands were shaking when he put his license back in his wallet. Officer Slovak also felt that Kearns was trying to keep some distance between them and appeared to be keeping his back from view. Fearing that Kearns was concealing a gun, 2 Officer Slovak informed Kearns that he was going to frisk him. After Kearns refused to be frisked, Officer Slovak, while keeping one hand on his gun, reached towards Kearns with his other hand. Although Kearns backed away, Officer Slovak was eventually able to reach around Kearns's back and thereupon felt a bulky pad about four or five inches wide underneath Kearns's jacket.
No longer fearing that Kearns had a gun, but unsure what was in the bulky pad, Officer Slovak offered Kearns two options: consent to a search of his person or undergo a dog sniff. When Kearns refused to be searched, Officer Slovak informed Kearns that he would be detained for a dog sniff. Sampson, a dog trained in narcotics detection, was brought in to conduct the dog sniff. The dog sniff, conducted in a separate office, indicated the presence of narcotics both in Kearns's bags and on his person. Consequently, Officer Slovak placed Kearns under arrest, searched him, and retrieved a bundle that had been taped around his midsection. The bundle was later inspected pursuant to a warrant and found to contain approximately 28 grams of cocaine and 370 grams of heroin.
Kearns unsuccessfully moved to suppress all evidence gained as a result of the encounter with Officer Slovak. Following the denial of the motion to suppress, a jury-waived trial was held consisting mainly of stipulated testimony based on the testimony given at the hearing on the motion to suppress. Kearns was convicted of both charges and sentenced to concurrent prison terms. The ICA affirmed the convictions on appeal and Kearns thereafter filed a petition for a writ of certiorari. On March 24, 1993, we granted his petition and issued a writ of certiorari to review the ICA's decision.
Kearns's principal argument is that the motion to suppress should have been granted because the encounter with Officer Slovak was a warrantless seizure unsupported by reasonable suspicion. In addition, Kearns argues that Sampson did not reliably "alert" on Kearns's person, that the application for the warrant to search the bundle failed to adequately document Sampson's training and experience, and that Kearns should have been allowed access to Sampson's training and maintenance records in order to challenge the affidavit. Because we agree with Kearns on his first point, we do not address the other issues.
We recently considered the constitutionality of a similar police-citizen encounter in State v. Quino, 74 Haw. 161, 840 P.2d 358, recon. denied, 74 Haw. 650, 843 P.2d 144 (1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1849, 123 L.Ed.2d 472 (1993). We observed that
[t]he Honolulu Police Department's Narcotics/Vice Airport Detail (HPD) utilizes a "walk and talk" drug interdiction program in order to arrest drug smugglers and to seize any narcotics they might be carrying on their persons or in their luggage. This "walk and talk" program does not employ any type of "drug courier profile" or require the officers to have a reasonable suspicion that a person may be in possession of illegal drugs, or may be engaged in criminal activity. Instead, members of the detail are trained to engage in "consensual encounters" whereby...
To continue reading
Request your trial
-
State v. Dissent
...officer must inform the subject of a suspicionless encounter of his or her right to terminate the encounter.15 See State v. Kearns, 75 Haw. 558, 570-72, 867 P.2d 903 (1994). In particular, the court concluded that ''an investigative encounter can... be deemed 'consensual' [only] if (1) prio......
-
State v. Meredith
...consented to police entering the home) (citing People v. Long, 124 A.D.2d 1016, 1017, 508 N.Y.S.2d 774 (1986) ); State v. Kearns, 75 Haw. 558, 568-69, 867 P.2d 903 (1994) (noting the warrant requirement in art. I, § 7 of the Hawaii constitution allows warrantless investigatory seizures if t......
-
State v. Tominiko
...the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave." State v. Kearns, 75 Haw. 558, 566, 867 P.2d 903, 907 (1994) (citing State v. Quino, 74 Haw. 161, 168–73, 840 P.2d 358, 362–64 (1992) ). "Whether a reasonable person would feel f......
-
State v. Spillner
...890 P.2d at 679] (some brackets added and some omitted). Bohannon, 102 Hawai`i at 237, 74 P.3d at 989; see also State v. Kearns, 75 Haw. 558, 569, 867 P.2d 903, 908 (1994) ("[T]he police may temporarily detain an individual if they have a reasonable suspicion based on specific and articulab......
-
Toward the decentralization of criminal procedure: state constitutional law and selective disincorporation.
...388 (Ark. 1977); People v. Santistevan, 715 P.2d 792, 794 (solo. 1986); State v. Jones, 475 A.2d 1087, 1090 (Cone. 1984), State v. Kearns, 867 P.2d 903, 906 (Haw. 1994); State v. Quino, 840 P.2d 358, 361 (Haw. 1992); State v. Post, 573 P.2d 153, 155 (Idaho 1978); Pirtle v. State, 323 N.E.2d......