State v. Patterson

• Decision Date: 29 November 1977
• Docket Number: No. 6068,6068
• Citation: 58 Haw. 462,571 P.2d 745
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Jay Baker PATTERSON, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 745

571 P.2d 745

58 Haw. 462

STATE of Hawaii, Plaintiff-Appellee, v. Jay Baker PATTERSON, Defendant-Appellant.

No. 6068.

Supreme Court of Hawai'i.

Nov. 29, 1977.

Syllabus by the Court

1. Searches conducted without a warrant issued upon probable cause are per se unreasonable unless shown to fall within a specific exception to the warrant requirement, and a search conducted pursuant to consent is such an exception.

2. Consent to a warrantless search must be "voluntary" in order to be valid, and "voluntary" means "uncoerced."

3. When the prosecution seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving by the preponderance of the evidence that the consent was, in fact, freely and voluntarily given.

4. Whether consent to search has been given voluntarily is a question of fact to be determined by the trial court from the totality of the circumstances.

5. Findings of the trier of fact on a motion to suppress concerning validity of consent to search must be upheld unless clearly erroneous.

6. No single factor is ever determinative on the issue of consent, and neither the display of weapons by the police nor the presence of a number of police officers will alone render the consent involuntary.

7. Knowledge on the part of an accused that contraband or other incriminatory evidence will be found during a search does not require a conclusion that the consent was involuntarily given.

D. Barclay Bryan, Honolulu (Kai, Dodge & Evensen, Honolulu, of counsel), for defendant-appellant.

Douglas L. Halsted, Deputy Pros. Atty., County of Hawaii, Hilo, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

OGATA, Justice.

Defendant-appellant Jay Baker Patterson (hereinafter referred to as appellant) was indicted by the grand jury of the third circuit on August 12, 1975, on two counts of ownership or possession of a firearm by a person convicted of a felony. ¹ A motion to suppress evidence was filed by counsel for appellant on August 28, 1975. Based on testimony elicited at two evidentiary hearings, the court below denied appellant's motion. Appellant now brings this interlocutory appeal from the order denying the motion to suppress. The sole question presented is whether appellant voluntarily consented to a warrantless search of his residence by police officers.

The facts of this case are by and large contradictory. However, there is little dispute as to the preliminary setting of the events which are pertinent to this case. During the early evening of July 9, 1975, police officers of the Kona District of Hawaii County responded to a report that a shot had been fired into the residence of a Mr. Terrazona. After conducting an examination of the Terrazona home, the officers concluded that the shot had been fired from the direction of appellant's residence. ² When that determination was made, several of the officers went over to appellant's residence. They cautiously entered appellant's premises as a group, with one police officer driving his vehicle up appellant's driveway and the other officers following close behind on foot with their weapons drawn and pointed at appellant's house. Two of the officers on foot were armed with rifles in addition to their service revolvers. Upon reaching the house, the officer who was driving got out of his car and drew his pistol, also pointing it towards appellant's dwelling. All told, there were four to five armed officers positioned in the yard in front of appellant's residence.

The events which subsequently took place are in considerable dispute. Therefore, the separate versions of the police and appellant will be set out at some length here. The police officers' version indicated that upon positioning themselves in front of appellant's house, the officers asked the occupants to come out of the house, and appellant came out to talk to the officers in the yard. The officers informed appellant of their reason for being there, and appellant denied firing any shots. The police officers indicated that they reholstered their service revolvers while talking to appellant, although two officers were still carrying rifles. Appellant at first agreed to allow the police to search his home, but he then changed his mind and demanded that the police obtain a search warrant. However, appellant nevertheless invited the police officers to come into his living room. Upon receiving this express invitation, three officers entered appellant's home, and they all sat down in the living room together with appellant and his roommate, one Martinez. The officers did not at that point conduct any search of the house. The officers testified that throughout this time, appellant was cooperative and never appeared upset or afraid. ³ Shortly thereafter, police Sgt. Ronald Akau arrived at appellant's home and took charge of the investigation. Sgt. Akau spoke briefly with appellant, at which time appellant again denied any wrongdoing. Akau then asked to use appellant's telephone, and he called a deputy prosecuting attorney to ascertain whether there was probable cause to arrest appellant. The attorney advised him that there was no probable cause to arrest as yet, although Akau continued to strongly suspect appellant and Martinez of shooting at Terrazona's home. Akau did not, however, explicitly inform appellant or Martinez that they were suspects, nor did he advise them of their Miranda rights. During the course of Sgt. Akau's conversations with appellant, appellant continued to deny that he fired any shots. Appellant further denied having any weapon in the house, and he told Sgt. Akau to go ahead and look through the house if he wished. Akau declined appellant's oral invitation and consent to a search of the home and told appellant that no search would be conducted without either a search warrant or a written consent to search. Akau stated that at no time did he tell appellant that a search warrant would be forthcoming. However, he did tell appellant that a search warrant might be sought upon further investigation.

Akau then sent Officer Calvin Okahara to obtain a written consent to search form from the police station. Upon Officer Okahara's return, Sgt. Akau explained the form to appellant in Okahara's presence. ⁴ Appellant then assured Akau that he wished to consent to a search of the house. Appellant proceeded to fill in "yes" on the consent form, thereby indicating that he consented to a "complete search of (his) premises." He then signed the form in the appropriate space. Sgt. Akau also signed the form, and it was witnessed by Officer Okahara. Sgt. Akau testified that at no time did any police officer tell appellant that he had to sign the form, nor were any threats or abusive statements ever made by the police officers. A search of the premises thereafter revealed two rifles, both of which were found under appellant's bed in his bedroom. These rifles, of course, constitute the evidence which appellant seeks to suppress.

Appellant's version of what took place reflects a considerably different set of circumstances. He maintains that he was intimidated and forced into consenting to the search. He testified that when he first saw the police officers, he had no idea why they were coming onto his premises, and he was quite shaken up by the sight of the armed officers positioned outside his home with guns pointed in his direction. His fear was aggravated by the fact that one of the officers threatened to shoot if appellant did not come out in the yard immediately to talk to them. Appellant further testified that when the officers first asked his permission to search the house, he asked them if they had a warrant, and they told him that one would be on the way. He then invited the officers into his home, but only in the hope of calming down the situation and to talk things over. Appellant stated that he was frightened by the sight of the armed officers, at least one of whom kept a rifle beside him, sitting in his living room. Appellant maintained that at no time did he give any oral consent to a search of the house. He testified that after Sgt. Akau had finished making his telephone call to the deputy prosecutor, Akau told appellant that a search warrant was actually being sent over and that appellant should thus sign the written consent form just to "take care" of matters. Appellant stated that at that point he was under the impression that a search warrant had in fact been issued. According to appellant, he was then presented with the consent to search form and was simply told to sign it. He neither read the form nor had its contents read to him, and he signed the form only because he was "mixed up" at the time. ⁵ He also denied filling in the "yes" box himself. He stated, however, that he thought the form was some kind of a "voluntary search document."

I

Plainly, the evidence which appellant seeks to suppress was uncovered by the police during the course of a warrantless search of appellant's premises. Searches conducted without a warrant issued upon probable cause are per se unreasonable unless shown to fall within a specific exception to the warrant requirement of the Fourth Amendment. ⁶ Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see State v. Kaluna,55 Haw. 361, 363, 520 P.2d 51, 55 (1974). One of the specific exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); see State v. Texeira, 50 Haw. 138, 140, 433 P.2d 593, 596 (1967).

It is settled that consent to a warrantless search must be "voluntary" in order to be valid. State v. Price, 55 Haw. 442, 443, 521 P.2d 376, 377 (1974). In State v. Price, the Supreme Court equated "voluntary" with "uncoerced" The Fourth and Fourteenth Amendments require that a consent not be coerced, by...