State v. Rippe

• Decision Date: 31 July 2008
• Docket Number: No. 28225.,28225.
• Citation: 193 P.3d 1215,119 Hawai'i 15
• Parties: STATE of Hawai'i, Plaintiff-Appellant, v. Timothy L. RIPPE, Defendant-Appellee.
• Court: Hawaii Court of Appeals

193 P.3d 1215

119 Hawai'i 15

STATE of Hawai'i, Plaintiff-Appellant, v. Timothy L. RIPPE, Defendant-Appellee.

No. 28225.

Intermediate Court of Appeals of Hawai`i.

July 31, 2008.

Brian R. Vincent, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellant.

Beau J. Bassett, Deputy Public Defender, on the briefs, for Defendant-Appellee.

RECKTENWALD, C.J., FOLEY and FUJISE, JJ.

Opinion of the Court by RECKTENWALD, C.J.

This case requires us to determine whether a police officer's request to a defendant for consent to search a bag constituted interrogation. We must also decide whether the defendant, who denied ownership of the bag in response to the officer's request, abandoned the bag and thus relinquished any reasonable expectation of privacy in it.

On January 30, 2006, Honolulu police received a report that Defendant-Appellee Timothy L. Rippe had been observed removing a license plate from a vehicle parked in Waikiki. A police officer then saw Rippe in the area carrying a license plate. The officer subsequently observed Rippe leaning over the back of a silver BMW. The officer detained Rippe for questioning, and later arrested Rippe after confirming that the license plate had been taken from a car that did not belong to him.

Police also recovered a blue nylon bag which was partially sticking out from under the driver's seat of the BMW. Police Sergeant Mark Cricchio asked Rippe if he would be willing to sign a form consenting to a search of the bag, and Rippe responded that the bag was not his. After Sergeant Cricchio asked Rippe several follow-up questions, another officer opened the bag and recovered a glass pipe, as well as two clear plastic baggies containing methamphetamine. Rippe was subsequently transported to the police station, where he remained overnight. The next day, he was advised of his Miranda rights and provided a statement in which he discussed the bag.

Rippe moved to suppress the bag and its contents, together with his statements to Sergeant Cricchio and the statements he made the next day. The Circuit Court of the First Circuit (circuit court)¹ granted the motion, finding that (1) Sergeant Cricchio's questions constituted custodial interrogation without prior Miranda warnings, (2) Rippe did not abandon the bag, and (3) the statements made by Rippe the next day were the fruit of the poisonous tree. Petitioner-Appellant State of Hawai'i appeals from the circuit court's August 24, 2006 order granting Rippe's motion to suppress evidence, and its November 3, 2006 order denying the State's motion for reconsideration.

We affirm in part and vacate in part, and remand for further proceedings. First, we conclude that Sergeant Cricchio's request that Rippe sign a consent form did not constitute interrogation, because the request was not reasonably likely to elicit an incriminating response. Rippe's disclaimer of ownership of the bag is therefore admissible, although Rippe's responses to Cricchio's follow-up questions were properly suppressed because those questions did constitute interrogation.

Second, considering Rippe's disclaimer of ownership of the bag in light of the surrounding circumstances, we conclude that Rippe abandoned the bag. Accordingly, we find that the search of the bag did not violate Rippe's rights, provided that the police acted lawfully in searching the BMW and removing the bag from it prior to Rippe's disclaimer of ownership. Since the circuit court did not address the lawfulness of that warrantless search and seizure, we remand with regard to that issue.

Finally, we conclude that Rippe's statements to police on the day after his arrest were not fruit of the poisonous tree, subject however to the circuit court's determination of the lawfulness of the search of the BMW and seizure of the bag.

I. BACKGROUND

At around 9:30 a.m. on January 30, 2006 Honolulu Police Department (HPD) Officer Michael Choy was approached by an unidentified person who stated that a male wearing a red baseball cap and grey shirt was removing a license plate from a vehicle parked on Ala Wai Boulevard in Waikiki.² After proceeding to the area, Officer Choy witnessed Rippe crossing Ala Wai Boulevard holding a license plate. The officer then saw Rippe leaning over the rear of a silver BMW sedan with no front license plate, at which point Officer Choy parked and exited his vehicle. Rippe started to walk away from the BMW, but Officer Choy stopped him to investigate. When Officer Choy asked Rippe if the BMW was his, Rippe responded "Yes[,]" and said that he found the license plate on the street. Officer Choy's report, which was admitted into evidence by stipulation of the parties, stated that he observed a license plate at the rear of the BMW which appeared to have been forced into a space between the trunk and body of the car.

A short time after Officer Choy encountered Rippe, other HPD officers arrived to assist. HPD Officer Joshua Helbling testified that when he arrived, "Officer Choy had . . . Mr. Rippe sitting on the sidewalk." Officer Helbling stated that he suspected the BMW was stolen because the Vehicle Identification Numbers (VIN) on the dash and the "inner door" were missing, and the "housing on the steering column was ripped off with exposed wires." Officer Helbling testified that HPD officers removed from the BMW an "HPD . . . parking placard" which had been taken in an Unauthorized Entry into a Motor Vehicle (UEMV) case, two IDs with Rippe's photo but a different name, "credit cards with various names" on them, and various types of currency.³

After the HPD officers confirmed that the license plate was from a vehicle registered to someone other than Rippe, Officer Choy arrested Rippe for Theft in the Fourth Degree, and Rippe was placed in the back seat of a police vehicle. Meanwhile, the HPD officers were able to locate a VIN number in the engine compartment of the BMW and determine that Rippe was the registered owner of the BMW.

Officer Helbling testified that while he looked for the BMW's VIN, he saw a blue nylon bag partially sticking out from beneath the driver's seat.⁴ Officer Helbling subsequently took the bag out, and placed it on top of the car. When asked about the purpose of removing the bag, Officer Helbling testified:

A. Well, that was actually taken out after Officer Lee had discovered the placard and [ran] the checks and it was discovered that that placard was taken in a UEMV.

Q. Were you looking for identification in the blue nylon bag?

A. Well, we—we had discovered stolen items or [verified]—that the placard was taken as a stolen item. We also had— Officer Lee had found the different credit cards and currency with different names on it. Besides, there was none that contained Mr. Rippe's name on [them]. So based on that, I removed the nylon bag from the floorboard and placed it on top of the—the car....

Q. But, Officer, what was the purpose in doing that?

....

A. Well, we had already discovered stolen items in the car. And so I figured it possibly had another ID-form of ID inside.

After the blue nylon bag was removed from the BMW, Sergeant Cricchio took the bag over to Rippe and asked him if he would "sign a consent to search" the bag. Rippe responded that it was not his bag. Sergeant Cricchio then asked if the BMW was Rippe's, and Rippe responded that it was. Sergeant Cricchio informed Rippe that the blue nylon bag had been found in Rippe's BMW. Rippe responded that people put things in his car all the time, and that only the tools in the vehicle were his property.

Believing that Rippe had verbally disclaimed ownership of the blue nylon bag, and had thus abandoned it, Sergeant Cricchio had another HPD officer search the nylon bag. Upon opening the bag, HPD officers discovered that it contained a six inch glass pipe with what appeared to be methamphetamine residue, and a small black leather pouch. Inside the small leather pouch were two small clear plastic baggies containing methamphetamine. Rippe was then arrested for drug offenses.

Rippe was held in police custody overnight. The next morning, Rippe was given Miranda warnings and interviewed by HPD Detective Keith Horikawa. During the tape-recorded interview, Rippe stated inter alia that he had previously parked his car in Waikiki and had gone to retrieve it on the morning of his arrest. He said that one lock to the vehicle had been broken, and that when he arrived at the vehicle on that morning, it appeared that someone had been sleeping in it and there were numerous items in the car which did not belong to him. He said he saw the blue nylon bag by the "stick shift" of his car. Rippe also stated that he did not know who owned the bag, but that he had opened the bag, inspected its contents, and then "discarded it [on the floor] cause [he] didn't want anything to do with it."

On February 6, 2006, Rippe was charged by written complaint with Promoting a Dangerous Drug in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 712-1243, Unlawful Use of Drug Paraphernalia, in violation of HRS § 329-43.5, and Theft in the Fourth Degree, in violation of HRS § 708-833(1).

Rippe filed a Motion to Suppress Evidence and Statements (Suppression Motion) that asked the circuit court to suppress all of the evidence found in the blue nylon bag, as well as his statements to Officer Choy and Sergeant Cricchio, and the tape-recorded statements he made to Detective Horikawa. In the Suppression Motion, Rippe contended that his statements to Sergeant Cricchio should be suppressed because he was subjected to a custodial interrogation without being given Miranda warnings, and that his subsequent statements to Detective Horikawa and the evidence in the bag should be suppressed because they were "fruits of the poisonous tree." Rippe also contended that police acted unlawfully when they searched the BMW and seized the blue nylon bag.

The circuit court granted the Suppression Motion in...