State v. Okubo

• Decision Date: 30 September 1982
• Docket Number: No. 8286,8286
• Citation: 3 Haw.App. 396,651 P.2d 494
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Roy OKUBO and George Yamamoto, Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 494

651 P.2d 494

3 Haw.App. 396

STATE of Hawaii, Plaintiff-Appellant, v. Roy OKUBO and George Yamamoto, Defendants-Appellees.

No. 8286.

Intermediate Court of Appeals of Hawai'i.

Sept. 30, 1982.

Certiorari Granted Oct. 19, 1982.

Syllabus by the Court

1. Article I, section 7 of the Hawaii Constitution guarantees freedom from warrantless searches and seizures (including recording and bugging devices) only to persons who are entitled to a reasonable expectation of privacy.

2. The test to determine whether a person is entitled to a reasonable expectation of privacy is: (1) has the person exhibited an actual, subjective expectation of privacy; and (2) is that expectation one which society is prepared to recognize as reasonable.

3. In a conversation between a person and a police officer, the fact that the police officer, without the other person's knowledge or consent, records the audio or the video portions of the conversation, or both, or wears a transmitter through which, with the officer's consent, other police officers monitor and record the conversation is not a violation of article I, sections 6 or 7 of the Hawaii Constitution or section 803-42 of the Hawaii Revised Statutes (1981 Supp.)

Edward H. Kubo, Jr., Deputy Pros. Atty., Honolulu, for plaintiff-appellant.

Bruce M. Ito, and Gary T. Hayashi, Honolulu (James E. T. Koshiba, Honolulu, with them on the brief; Koshiba & Young, Honolulu), for defendants-appellees.

Before BURNS, C. J., and HEEN and TANAKA, JJ.

BURNS, Chief Judge.

Defendants-Appellees Roy Okubo and George Yamamoto (defendants) were indicted respectively for 7 and 19 counts of bribery in violation of § 710-1040(1)(a) of the Hawaii Revised Statutes (HRS) (1976). The defendants were accused of paying two Honolulu police officers for information of impending police raids on an alleged massage parlor establishment. During the pretrial proceedings, the lower court judge partially granted defendants' motion to suppress evidence brought under Rule 12(b), Hawaii Rules of Penal Procedure (1977) (HRPP). The evidence suppressed consists of recordings of the audio portion of face-to-face and telephone conversations between the defendants and the police officers. The evidence not suppressed consists of videotapes of the visual portion of some of the conversations. ¹ The judge's written decision and order filed on September 4, 1981 held that the warrantless recordings of the audio portion of all conversations "were the product of 'unreasonable searches, seizures and invasions of privacy' in violation of article I, section 7" of the Hawaii Constitution. Recordings of the audio portion of the face-to-face conversations were suppressed on the additional ground that they were obtained in violation of Hawaii's Eavesdropping Law, HRS Chapter 803, Part IV.

Pursuant to HRS §§ 641-13(7) (SUPP.1981) AND 602-5(1) (1976)², the State appeals the lower court's ruling. The essence of the State's argument is that the participant or consensual monitoring and recording ³ of the conversations did not violate any reasonable expectations of privacy held by the defendants, that there was no invasion of privacy nor was a warrant required under either the Hawaii or the United States constitutions, and that the warrantless electronic recordings of the audio portion of the conversations did not violate HRS Chapter 803, Part IV, because they were made with the consent of at least one of the parties to the conversations. We agree with the State and, therefore, reverse the ruling of the court below.

The evidence sought to be suppressed consists of videotapes of approximately 13 meetings and audio tapes of approximately 40 conversations among the defendants and Police Officers Richard Nagao and Ronald Higa over a period of seven months. Four separate methods were used to obtain the evidence:

(1) A participant-police officer wore a "Nagra" brand body tape recorder which recorded face-to-face conversations;

(2) A participant-police officer permitted telephone conversations to be recorded with an audio recorder attached to the phone which the officer was using;

(3) A participant-police officer wore a transmitter, which simultaneously broadcasted face-to-face conversations to other police officers who monitored and recorded the conversations, sometimes in conjunction with videotape recordings and sometimes not; and

(4) The monitoring police officers videotape recorded the face-to-face conversations among Officers Nagao and Higa and the defendants.

The recordings and videotapes were made with the knowledge and consent of Officers Nagao and Higa. The defendants, however, had no knowledge of and did not consent to the monitoring and recording of the conversations. No judicial warrant or order authorizing the monitoring and recording of the conversations was obtained by the police. Both defendants testified that they knew that Nagao and Higa were police officers. Defendant Yamamoto further testified that he knew of the police officers' duty to uphold the law.

Audio and video recordings were made of a crucial meeting held on January 9, 1980 at Beretania Saimin, a restaurant open to the public, where the defendants and the officers agreed on the amount of the monthly payments to be paid by the defendants for the officers' assistance. Defendant Yamamoto testified that the parties sat at a table about 20-30 feet away from the other customers in the restaurant. Because of the nature of the conversations, the parties spoke in low tones to prevent others from hearing. Defendant Yamamoto, however, admitted that other customers could reasonably have heard what was being said.

The issues before this court are:

(1) Whether the warrantless recording and monitoring of conversations among the defendants and police officers with only the latters' knowledge and consent violated the defendants' right to privacy under either article I, section 6 or article I, section 7 of the Hawaii Constitution (1978). We answer no.

(2) Whether the warrantless recording and monitoring of conversations among the defendants and police officers with only the latters' knowledge and consent violated HRS Chapter 803, Part IV (Supp.1981). We answer no.

Article I, section 6 of the Hawaii Constitution states:

RIGHT TO PRIVACY

Section 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right.

Article I, section 7 of the Hawaii Constitution states:

SEARCHES, SEIZURES AND INVASION OF PRIVACY

Section 7. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted.

The reasons for adopting article I, section 7 (previously known as article I, section 5) ⁴ were explained by the Committee on Bill of Rights, Suffrage and Elections of the 1968 Constitutional Convention as follows:

Several proposals sought to secure all persons against unreasonable interceptions of their communications or other invasions of their privacy. Your Committee recognizes the need for certain protections of the individual's right to privacy in the context of today's society. The tremendous growth of the electronic communications technology along with a corresponding growth of electronic surveillance techniques makes possible the ready encroachment upon a person's private conduct and communication. The recently enacted Hawaii statute prohibiting wiretapping and eavesdropping by private persons as well as law enforcement officials protects the individual's communications from interception, and your Committee recognizes that the legislature took proper initiative to legislate protection in that area under our existing constitutional provision. Recent United States Supreme Court decisions have also enlarged and delineated the individual's protection against wiretapping and eavesdropping. Your Committee believes that a specific protection against communications interception in the Constitution may be somewhat narrow and limiting and therefore recommends a broader protection in terms of right of privacy ....

Your Committee is of the opinion that inclusion of the term "invasions of privacy" will effectively protect the individual's wishes for privacy as a legitimate social interest. The proposed amendment is intended to include protection against indiscriminate wiretapping as well as undue government inquiry into and regulation of those areas of a person's life which are defined as necessary to insure "man's individuality and human dignity."

Stand.Comm.Rep.No. 55, 2d Hawaii Const.Conv., reprinted in I Proceedings of the Constitutional Convention of Hawaii of 1968, at 233-234 (1972).

When the 1968 Constitutional Convention met, the United States Supreme Court had already held in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), ⁵ that a government agent may, without a warrant and without defendant's knowledge or consent, record his own conversation with the defendant in the latter's private office and in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), ⁶ that the government may not bug a telephone booth without a warrant or without its user's consent. However, as the court below correctly noted, "the reports of the [1968] convention and the debates do not clearly indicate a position on the part of the delegates with respect to consensual surveillance...."

The 1978 Constitutional Convention re-defined section 7, added section 6, and delineated the differences between the two right-to-privacy provisions. The report by the Committee on Bill of Rights, Suffrage and...