State v. Reed, 12175

• Citation: 70 Haw. 107,762 P.2d 803
• Decision Date: 21 October 1988
• Docket Number: No. 12175,12175
• Parties: STATE of Hawaii, Petitioner-Appellee, v. Mark Sidney REED, Respondent-Appellant.
• Court: Supreme Court of Hawai'i

Page 803

762 P.2d 803

70 Haw. 107

STATE of Hawaii, Petitioner-Appellee, v. Mark Sidney REED, Respondent-Appellant.

No. 12175.

Supreme Court of Hawai'i.

Oct. 21, 1988.

Syllabus by the Court

1. Warrantless searches are presumed to be unreasonable unless justified by a specific exception to the warrant requirement.

2. Speculation or curiosity cannot provide the sole basis to legitimize warrantless searches or seizures.

3. We view the warrantless, limited pat-down search after a valid arrest for

weapons, escape instrumentalities, or contraband as reasonable and necessary for the arresting police officer's safety. This type of search is not dependent on the nature of the crime or the circumstances of the arrest.

4. We will not condone any impermissibly broad, unreasonable, warrantless searches of arrestees or their possessions which 1) are not supported by specific, recognized exceptions to the warrant requirement; or 2) constitute unlawful attempts to circumvent the controlling constitutional protections.

5. We thus hold that it is per se reasonable for the arresting police officers to conduct a warrantless, limited pat-down search of an arrestee's person and the area under the arrestee's immediate control for weapons, escape instrumentalities, or contraband.

6. The pat-down frisk, as a form of the search incident to a valid arrest, must 1) be confined to a search of the arrestee's person or the area within his or her immediate reach for weapons, escape instrumentalities, or contraband; and 2) balance the weighty government interest in police safety against the arrestee's right to be free from unreasonable government intrusion.

Lila B. LeDuc, Deputy Pros. Atty., Honolulu, on the writ for petitioner-appellee.

Susan Barr, Deputy Public Defender, Honolulu, on the supplemental brief for respondent-appellant.

Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.

HAYASHI, Justice.

Petitioner-Appellee State of Hawaii (hereinafter "State") seeks review of the Intermediate Court of Appeals (hereinafter "ICA") memorandum opinion reversing the convictions against Respondent-Appellant Mark Sidney Reed (hereinafter "Reed"). The trial court had refused to suppress the incriminating evidence against Reed and had convicted him for the Illegal Possession of a Switchblade Knife plus the Third-Degree Promotion of the Harmful Drug valium in violation of Hawaii Revised Statutes (hereinafter "HRS") §§ 134-52 (1985) and 712-1246 (1985), respectively. ¹ The ICA majority opinion had reversed ruling that the evidence had been illegally obtained by an overly broad pat-down search. We disagree with the ICA majority decision and instead agree with the dissenting opinion of Judge Burns that 1) the switchblade knife was properly seized; but 2) further proceedings on remand are required to determine the legality of the valium seizure.

I.

BACKGROUND FACTS.

The facts are not disputed:

At approximately 4:20 a.m. on April 30, 1986, Honolulu police officer Michael DeAguiar (DeAguiar) saw Defendant apparently throw coffee on a woman standing on the sidewalk of Hotel Street. The woman then began "screaming" and swearing at Defendant. DeAguiar stopped Defendant and asked him why he had done what he did. Defendant gave no reason for his action and DeAguiar asked Defendant for identification. Upon receiving Defendant's identification, DeAguiar called the police station to see if any warrant was outstanding against Defendant. DeAguiar was informed there was a warrant for Defendant's arrest and he arrested Defendant. DeAguiar then patted Defendant down and recovered the switchblade knife and a plastic Tylenol bottle containing several pills which DeAguiar could see, without opening the bottle, were blue in color and imprinted with the letter "V". At that time Defendant was arrested for possession of the knife. When Defendant was taken to the police station, DeAguiar compared the blue pills with pictures in a "Physician's Manual" and concluded that the pills were valium. Defendant was arrested on the drug charge. The pills were removed from the bottle by DeAguiar without a search warrant, counted, and returned to the bottle. The pills were later analyzed by police chemists as valium.

Defendant's pre-trial motion to suppress the knife and the pills was denied. The parties then incorporated DeAguiar's and Defendant's suppression hearing testimony for purposes of trial, stipulated that the pills had been analyzed as valium, and submitted the case to the court to decide the substantive issues. The court found Defendant guilty on both counts and Defendant appealed.

State v. Reed, No. 12175, memo. op. at 1-2 (Haw.App. March 29, 1988) (emphasis added).

On appeal, the ICA majority held that State failed to point to specific, articulable facts to justify the pat-down search by Honolulu Police Department Officer Michael DeAguiar (hereinafter "Officer DeAguiar"). Id. at 3. Because the record did "not disclose the offense for which the [outstanding arrest] warrant was issued," the ICA majority explained that it could not "say that the offense for which [Reed] was arrested was one which, per se, would justify the 'pat-down' search." Id. at 4. Finally, the majority noted that:

DeAguiar did not testify to anything that caused him to believe that Defendant was armed, concealing fruits of crime on his person, or was attempting to escape. Defendant was cooperative at all times, and DeAguiar gave no reason for the search other than Defendant's arrest. Consequently, the record is utterly devoid of "specific and articulable facts," and the search was unreasonable. The trial court erred in denying Defendant's motion to suppress.

The State's argument that the time and place of the arrest provided exigent circumstances is without merit. Even given the time and place, the evidence does not show that Defendant's conduct was threatening, that the police had any information that Defendant was in possession of any weapons or contraband, that he had a confederate, or that he was trying or would try to escape.

Id. at 4-5 (emphasis added).

While opining that Hawaii caselaw is ambiguous over whether an arresting police officer may automatically conduct a pat-down search of an arrestee for weapons, escape instrumentalities, or contraband, the ICA dissenting opinion determined that no valid reason justified exposing the police officers to the reasonably avoidable risk of being harmed by lawfully arrested suspects:

[I]t is per se reasonable for an arresting officer (1) to conduct a pat-down search of the arrestee for weapons and property that can be used to facilitate escape, (2) to temporarily seize for examination any items which, as a result of the pat-down search, the arresting officer has probable cause to believe are weapons or property that can be used to facilitate escape or containers of weapons or property that can be used to facilitate escape, and (3) to permanently seize any items which, as a result of the examination, reveal themselves to be weapons, property that can be used to facilitate escape, or contraband or containers of weapons or property that can be used to facilitate escape.

Id., dissenting op. at 3 (as amended March 31, 1988) (emphasis added).

The dissenting opinion thus concluded that the pat-down search, permanent seizure of the switchblade knife, plus the feeling of the plastic Tylenol bottle in Reed's left front pocket were valid. Id. But because the parties and the trial court never addressed the underlying facts on whether Officer DeAguiar had probable cause to believe what he felt was a weapon, escape instrumentality, or contraband, a remand was necessary to decide this issue. Id. at 3-4.

We subsequently accepted State's timely certiorari petition to resolve the controversy.

II.

QUESTIONS PRESENTED.

I. Whether the ICA majority erred by ruling that the trial court should have suppressed the switchblade knife? YES.

II. Whether the ICA majority erred by holding that the trial court ought to have suppressed the valium pills? YES.

Because of our responses to these points, we do not address the other issues posed by the parties.

III.

SWITCHBLADE KNIFE SUPPRESSION.

State maintains that the ICA dissenting opinion correctly interpreted the governing Hawaii caselaw to permit a pat-down search of any arrestee prior to the transport for booking at the police station. Reed counters that 1) a per se rule allowing a protective pat-down search for weapons, escape instrumentalities, or contraband in every arrest should not be adopted; and 2) the instant pat-down frisk by Officer DeAguiar clearly exceeded the limited scope of a valid examination anyway.

Here, no real question exists that Officer DeAguiar possessed reasonable grounds to detain Reed for investigation, after witnessing the apparent assault on the woman, under the rule established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See State v. Kim, 68 Haw. 286, 711 P.2d 1291 (1985). ² We must therefore focus on the legality of the pat-down search based on the principle that warrantless searches are presumed to be unreasonable unless justified by a specific exception to the warrant requirement. State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985); see State v. Biggar, 68 Haw. 404, 716 P.2d 493 (1986).

We begin our discussion with State v. Enos, 68 Haw. 509, 720 P.2d 1012 (1986), where the investigating police officer arrested the defendant for driving under the influence of intoxicating liquor pursuant to HRS § 291-4(a) (Supp.1984), conducted a pat-down frisk, felt what appeared to be cellophane packets in the defendant's left front pants pocket, suspected that the packets might contain contraband based on prior narcotics investigations, removed the pocket contents, discovered cocaine, and arrested the defendant for the third-degree promotion of dangerous drugs under HRS § 712-1243 (1976). On appeal, we reversed the drug conviction ruling that...