State v. Madamba, 6981

• Decision Date: 10 September 1980
• Docket Number: No. 6981,6981
• Citation: 617 P.2d 76,62 Haw. 453
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Edwin MADAMBA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 76

617 P.2d 76

62 Haw. 453

STATE of Hawaii, Plaintiff-Appellee, v. Edwin MADAMBA, Defendant-Appellant.

No. 6981.

Supreme Court of Hawai'i.

Sept. 10, 1980.

Syllabus by the Court

1. Following a permissible automobile stop, a firearm which is in plain view may properly be seized.

2. Where an officer is in possession of information, the reliability of which has been sufficiently established, or where he can point to specific and articulable facts which would warrant a man of reasonable caution to believe that criminal activity involving the suspect is afoot, the officer is authorized to make a temporary investigative stop.

3. Although the initial investigative stop may be valid, a police officer may not then order the person confronted to leave his vehicle or conduct a self-protective search of his person unless from the specific conduct of the defendant, or from reliable information, or from the attendant circumstances, the officer may reasonably infer that the person stopped is armed and presently dangerous.

Evan R. Shirley, Honolulu, (Shirley & Jordan, Honolulu, of counsel), for defendant-appellant.

Glenn M. Miyajima, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.

Before OGATA, Acting C. J., MENOR, LUM, and NAKAMURA, JJ., and MARUMOTO, Retired Justice, in place of RICHARDSON, C. J., recused.

MENOR, Justice.

This is an appeal by the defendant who was convicted in the district court of violating the provisions of HRS § 134-6 (1976). ¹ He appeals from the judgment and sentence of the trial court. At issue is whether the trial court should have granted his motion to suppress as evidence a firearm which was recovered from his vehicle by the police.

At noon of May 6, 1977, Officers Dennis Kim and Dwight Lopez were having lunch at a restaurant on Richards Street when a man suddenly ran up to them yelling that someone in the building had been shot. The officers ran through the kitchen area and, exiting through the rear door of the restaurant, saw the blood-stained body of Josiah Lii lying in the hallway. Officer Kim immediately ran to his vehicle to radio for an ambulance. After making the call, he returned to Lii's body and found Mrs. Lii leaning over her husband and crying out loudly: "Jeffrey did it. Jeffrey Kealoha." Officer Kim thereupon returned to his vehicle and broadcast the information that Jeffrey Kealoha was the prime suspect in the shooting.

Officer Keith Perry was one of the officers assigned to locate Jeffrey Kealoha. Knowing that Kealoha worked at 1935 Hau Street, the officer drove to that address and upon arrival immediately spotted Kealoha's 1976 Oldsmobile sedan in the parking lot. No one was in the vehicle at the time, so the officer stopped his car on the street and waited. Shortly thereafter he saw the defendant, Edwin Madamba, enter the Oldsmobile and drive it to the side of the IBEW building where Jeffrey Kealoha soon appeared. Kealoha was carrying what appeared to the officer to be a rifle case. When the two men drove off, the officer tailed the vehicle until he lost sight of it in the Kamehameha Housing area in Kalihi. Because his car radio was not working, he asked Officer Julius Durham who was also in the area to broadcast the information that Kealoha's vehicle had been seen in the Kamehameha Housing area.

Officer William Burgess who had heard the radio relay thereafter spotted the described Oldsmobile proceeding in the Ewa direction on North King Street. He immediately relayed this information over the air. Officers Theodore Chun and Clayton Yamashiro promptly responded to the alert, and at the intersection of King and Kaili Streets saw the suspect Oldsmobile stopped for a traffic light on King Street. The officers thereupon maneuvered their vehicle to the left and slightly ahead of the Oldsmobile. Almost simultaneously, Officer Burgess drove up and stopped, and with shotgun in hand ran towards the Oldsmobile. Officer Yamashiro also left his vehicle and assumed a covering position with his rifle, while Officer Chun approached the Oldsmobile with sidearm drawn. Officer Burgess reached it first and ordered the defendant to step out with his hands above his head. Jeffrey Kealoha was no longer in the vehicle. By that time at least three more police squad cars had converged upon the scene. While the defendant was being frisked by the police at the rear of the Oldsmobile, Officer Chun looked into the vehicle from the outside and through the open car door saw the butt end of a revolver protruding from a case lying on the front seat of the automobile. The firearm was seized and it is this evidence which the defendant sought to have suppressed.

Initially, we find that the police restraint upon further movement of the Oldsmobile and its driver was proper. This, however, does not end our inquiry for the defendant has also argued that even if the stop was authorized, the police exceeded their authority in ordering him out of the automobile. See State v. Joao, 56 Haw. 216, 533 P.2d 270 (1975). What gives meaning to his argument is that while he concedes that a firearm which is in plain view from the outside of an automobile may properly be seized, State v. Hanawahine, 50 Haw. 461, 443 P.2d 149 (1968); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971), he points out that it was only after ordering the defendant out of the vehicle that the police were able to see the revolver lying on the front seat through the open car door. ² This was essentially the situation we faced in Joao.

It must be remembered that there are two distinct aspects to an investigative detention which falls short of an arrest based on probable cause. Id.; State v. Barnes, 58 Haw. 333, 568 P.2d 1207 (1977); State v. Kea, 61 Haw. 566, 606 P.2d 1329 (1980). The first aspect is the stop itself. In the general interest of effective crime prevention and law enforcement, "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Barnes, supra, 58 Haw. at 337, 568 P.2d 1211. Where, therefore, an officer is in possession of information, the reliability of which has been sufficiently established, or where he can point to specific and articulable facts which would warrant a man of reasonable caution to believe that criminal activity involving the suspect is afoot, the officer is authorized to make a temporary investigative stop. Id.; State v. Kea, supra; State v. Ogata, 58 Haw. 514, 572 P.2d 1222 (1975). By these standards, the initial stop in this case was proper. Jeffrey Kealoha was the prime suspect in the shooting of Josiah Lii, and the police were looking for him. The defendant had been seen driving away with Kealoha, and he was still driving the latter's automobile when he was stopped by the police.

The second aspect of the investigative stop, however, involves the right of the officer to further intrude upon the liberty of the person detained. In the case of the temporary detention of an individual, this intrusion ordinarily consists of a patdown of his person. In an automobile stop, it usually takes the...