State v. Quino
| Decision Date | 28 October 1992 |
| Docket Number | No. 15239,15239 |
| Citation | 840 P.2d 358,74 Haw. 161 |
| Parties | , 61 USLW 2304 STATE of Hawaii, Respondent-Appellee, v. Ferdinand Q. QUINO, Petitioner-Appellant, and Henry Tugcay Galinato and Raul Centorna Cachola, Defendants. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. Hawaii has chosen to afford greater protection to its citizens by rejecting the United States Supreme Court's requirement that physical force or submission to an assertion of authority determines whether a person has been seized.
2. A person is seized, if given the totality of the circumstances, a reasonable person would have believed that he was not free to leave.
3. A police officer cannot randomly encounter individuals without any objective basis for suspecting them of misconduct and then place them in a coercive environment in order to develop reasonable suspicion to justify their detention.
4. A waiver of one's constitutional rights must be freely, voluntarily and intelligently undertaken.
5. The government has the burden to show that the waiver was voluntary and uncoerced.
6. A police officer has no affirmative duty to inform a person approached for questioning that the person is free to leave the encounter at any time; however, failure to inform is a factor to be considered in evaluating whether consent was voluntarily given.
7. Under circumstances where a police officer approaches a person and conceals his or her investigative objective to gain the person's consent and does not volunteer information that the officer is investigating drug trafficking at the time the officer announces his or her office, consent based upon such material nondisclosures cannot be viewed as either voluntary or intelligent.
8. The police cannot rely on a person's acquiescence to establish that the person voluntarily consented to the seizure of his or her person.
Theodore Y.H. Chinn, Deputy Public Defender, Honolulu, for petitioner-appellant.
Charlotte J. Duarte, Deputy Pros. Atty., Honolulu, for respondent-appellee.
Before LUM, C.J., MOON, KLEIN, LEVINSON, JJ., and HAYASHI, Retired Justice, Assigned By Reason of Vacancy.
Defendant-Appellant Ferdinand Q. Quino (Quino) was convicted of promoting a dangerous drug in the first degree in violation of Hawaii Revised Statutes (HRS) § 712-1241(1)(a)(i) (Supp.1991). The circuit court denied Quino's pre-trial motion to suppress evidence. Subsequently, Quino was found guilty by a circuit court jury and sentenced to incarceration for a term of twenty years. On appeal before the Intermediate Court of Appeals (ICA), Quino argued that the circuit court should have granted his motion to suppress, because the evidence recovered was the product of an illegal seizure. The ICA affirmed the conviction in a published opinion. See State v. Quino, No. 15239 . This court granted Quino's petition for a writ of certiorari to review the ICA's opinion.
Quino's petition raises five issues; however, we confine our review to the following points: (1) whether Quino was "seized" by the police when Officer Tanya Tano (Officer Tano) approached and questioned him in the airport terminal; and (2) assuming a seizure occurred, whether it was consensual. Because we conclude that an unlawful seizure occurred prior to Quino's flight, it is unnecessary to address the remaining issues. 1
The 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 airline passengers are approached and, in a "conversational manner," requested to consent to a search of their luggage or person. 2
The HPD trains its officers to approach a passenger in the following manner: (1) the officer first observes passengers arriving from an illegal drug "source city"; (2) the officer then approaches a passenger at random and identifies himself as a police officer; (3) the officer asks the passenger if he would agree to talk to him; (4) the officer then asks whether the passenger has disembarked from the targeted flight; (5) after receiving oral affirmation, the officer asks the passenger for his identification and airline ticket; (6) the officer asks the passenger if he is carrying any narcotics; (7) upon receiving a negative answer, the officer requests "consent" to search the passenger's carry-on and check-in luggage; and, (8) if the inspection is fruitless, the officer then asks the passenger whether he has any narcotics on his person and requests "consent" to pat down the passenger.
On the evening of April 3, 1990, Officers Tano and Harold Sumaoang (Officer Sumaoang) were assigned to observe passengers arriving on an American Airlines flight from San Jose. 3 Quino and two friends, Henry Galinato (Galinato) and Raul Cachola (Cachola), were observed by the two officers as they exited the gate and walked single file along the concourse. Officer Tano noticed an unnatural bulge or "bumpiness" on Galinato's back, near his beltline. 4 She did not notice anything unusual about Quino or Cachola.
After observing the three men from a distance, both officers approached and stopped them. Officer Tano identified herself as a police officer and asked permission to speak with Quino and Cachola. After they agreed, Officer Tano asked them whether they had just arrived on the American Airlines flight from San Jose; whether they had previously been to Hawaii, whether they would mind if she looked at their airline tickets, and whether they would provide identification. Meanwhile, Officer Sumaoang stopped Galinato and asked him similar questions.
Although Officer Tano identified herself as a police officer when she approached the men, she did not attempt to explain the purpose of the questioning. However, while she was inspecting the airline tickets, Quino asked her what the inquiry was all about. It was only then that Officer Tano mentioned that she was investigating possible narcotics trafficking at the airport.
Officer Tano then asked if the men were carrying narcotics. Quino said he knew nothing about narcotics. Nevertheless, Officer Tano asked if she could check Quino and Cachola's carry-on luggage. Quino obliged and showed Officer Tano the contents of his bag. No narcotics were discovered.
At that point, Officer Tano had no reasonable suspicion that any of the individuals was carrying contraband. Nevertheless, the possibility that she might be talking to drug couriers occurred to Officer Tano because of the "body language" exhibited by both men. She testified that, "I didn't have any indication, but I was starting to get, by their actions, I was beginning to think that they might have something." She, therefore, continued to "interact" with Quino and Cachola.
After Officer Tano looked into Cachola's bag, she asked if either Cachola or Quino was carrying narcotics on their person. Each responded in the negative. She then asked if she could "pat them down" and they said "no." Around that time, Officer Tano overheard Galinato say to Officer Sumaoang, "Give me a break." Immediately thereafter, the three men started running down the corridor with the officers in pursuit.
During the chase, Officer Sumaoang observed Galinato pull a waistband-like belt and yellow and white packages from under his shirt. Galinato threw these items into potted plants as he ran towards the main airport terminal. The packages were later determined to contain illegal drugs. Officer Sumaong also observed Quino drop a cellophane package into a potted plant as he ran. This package was later found to contain illegal drugs.
Defendants Cachola, Galinato, and Quino were eventually arrested and charged with promoting a dangerous drug in the first degree. Galinato and Quino both filed pre-trial motions to suppress the evidence recovered during the chase at the airport. Consolidated hearings on the motions to suppress were held on August 15, September 21, and November 2, 1990. The motions were denied because the circuit court determined that the officers' initial approach and questioning were within constitutional bounds.
On January 2, 1991, Quino and Galinato were convicted of the drug charge. 5 They separately appealed, and although the ICA affirmed both convictions, only Quino requested certiorari. 6
The ICA determined that Quino was not seized because: (1) the police officers' actions were lawful and would not have caused a reasonable person in Quino's position to believe that he was not free to leave, or that, if he started to leave, the police would attempt to physically restrain him; (2) Quino did not have the right to be advised that he could refuse to respond to the questions and simply leave the area; and (3) the circuit court's findings and legal conclusions were correct. 7
Quino, however, argues that Officer Tano's approach and questioning of him at the airport was an unlawful and non-consensual seizure of his person in violation of both the Fourth Amendment of the United States Constitution 8 and article I, section 7 of the Hawaii Constitution. 9 Although no physical force was used, Quino argues that the officers' show of authority and conduct communicated to him that he was not free to leave. He further contends that the incriminating evidence obtained after he fled was inadmissible as the product of an illegal seizure. We agree.
In Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1967), the United States Supreme Court recognized that a brief detention that falls short of a...
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