State v. Stachler

• Decision Date: 27 October 1977
• Docket Number: No. 6017,6017
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. James H. STACHLER, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1323

570 P.2d 1323

58 Haw. 412

STATE of Hawaii, Plaintiff-Appellee, v. James H. STACHLER, Defendant-Appellant.

No. 6017.

Supreme Court of Hawai'i.

Oct. 27, 1977.

Syllabus by the Court

1. Government intrusions into matters or activities as to which one has exhibited a reasonable expectation of privacy are searches within the meaning of the Fourth Amendment.

2. A reasonable expectation of privacy is something more than a subjective expectation of privacy; it must also be an expectation that society is prepared to recognize as reasonable.

3. No reasonable expectation of privacy can be asserted where an object or activity is in open view for any person to observe, and in such a situation no search is involved.

4. In some instances, reasonable expectations of privacy may ascend into the airspace and claim Fourth Amendment protection.

5. Consistent with the common habits of an agriculturist, one growing a crop in an open field does not have a reasonable subjective expectation of privacy from aerial observation, nor would society find such an expectation objectively reasonable.

6. There is no reasonable expectation of privacy from aerial observation, conducted at a reasonable height, as to a marijuana patch in open view.

7. An aerial observation, conducted at a reasonable height, of a marijuana patch in open view, is not an undue government inquiry into those areas of a person's life necessary to insure "man's individuality and human dignity" and is not an invasion of privacy under Article I, § 5, of State constitution.

8. Use of binoculars in the aerial observation, conducted at a reasonable height, of a marijuana patch in open view, is not use of electronic surveillance technique against which Article I, § 5, of State constitution was designed to guard.

9. Although police officers failed to leave a copy of search warrant and property receipt on premises of defendant as required by HRCrP 41(d), where there has been no showing that such failure resulted in prejudice to defendant's rights, suppression remedy is not appropriate.

10. A motion for a deferred acceptance of guilty plea is not seasonably made after a plea of not guilty and a trial resulting in a finding of guilt.

11. Conditional discharge procedures under HRS § 712-1255 (Special Pamphlet, 1975) are available to one who pleads guilty to or is found guilty of certain drug-related offenses and such procedures are not foreclosed by a not guilty plea followed by a trial and finding of guilt.

12. Where offense of which defendant was found guilty was not listed among those drug-related offenses giving rise to conditional discharge procedures under HRS § 712-1255 (Special Pamphlet, 1975), legislature has expressed policy of withholding conditional release for that offense.

Wallace H. Gallup, Jr., Sterry, Mah & Gallup, Kailua-Kona, for defendant-appellant.

Andrew P. Wilson, Deputy Pros. Atty., County of Hawaii, Hilo, for plaintiff-appellee.

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

RICHARDSON, Chief Justice.

Defendant-appellant James Stachler appeals from a conviction for Promoting a Detrimental Drug in the First Degree under HRS § 712-1247(1)(e) (Special Pamphlet, 1975).

The events leading to defendant's arrest began on July 17, 1974, when police were conducting a general surveillance via helicopter of the Captain Cook, Kona, area looking for criminal activity. In this sparsely populated and relatively remote area of the Island of Hawaii, defendant Stachler leased about four acres of land on which his residence was located. Defendant's property was adjacent to a forest reserve just below a high ridge and was surrounded by abandoned coffee farms, wild guava growth and numerous macadamia nut, mango and avocado trees. His land could not be seen from the nearest public road, nor from neighboring property, and to get to the house one had to pass through a locked gate and travel up an unimproved road. As the police helicopter flew over Mr. Stachler's land, Officer George Pereira, using binoculars, observed a patch of marijuana about 9 x 12 feet containing three rows, each with approximately four plants estimated to be between 8 and 10 feet tall. This patch was about 15 feet south of the Stachler house. Although there was conflicting testimony, the court below found that the helicopter maintained an elevation of around 300 feet throughout the surveillance.

After landing, Officer Pereira and other police officers proceeded to property adjoining defendant's land. From this neighboring land Officer Pereira was unable to see the marijuana patch he had previously observed and climbed a 15-foot avocado tree in order to gain a better view. While still unable to see the marijuana patch, he did observe other marijuana plants.

Based upon Officer Pereira's information, a search warrant was issued and was executed on July 18th. No one was at the Stachler residence at the time and Officer Pereira placed the search warrant in his boot for safekeeping. A search of the land and house yielded approximately 31 marijuana plants. The plants were scattered throughout the property with no more than five or six together in any one area. The marijuana patch which had been seen from the air contained only two plants and about ten freshly cut stumps. Officer Pereira, finding that the search warrant in his boot had torn into pieces and was illegible, failed to leave a copy of the warrant at the Stachler residence. It also appears that no property receipt was left on the premises. ¹

Defendant Stachler was finally arrested at Hookena Beach in his Chevrolet van. The van was subsequently searched and 41 marijuana plants weighing approximately 52 pounds were discovered.

Appellant moved to suppress all evidence seized on the basis that the initial helicopter observation violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section 5, of the Hawaii State Constitution and that the execution of the search warrant had failed to comply with Rule 41(d) of the Hawaii Rules of Criminal Procedure. ² This motion was denied. After a jury-waived trial, defendant was found guilty. At the sentencing hearing, defense counsel moved to set aside and defer adjudication of guilt. The circuit court also denied this motion.

The issues presented by this appeal are the validity of the aerial observation, the improper execution of the search warrant and the denial of defendant's motion to defer adjudication of guilt.

I. CONSTITUTIONALITY OF THE AERIAL OBSERVATION

The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects from unreasonable searches and seizures. Article I, Section 5, of the Hawaii State Constitution similarly protects against unreasonable searches and seizures and additionally guarantees Hawaii's citizens the right of privacy.

Appellant's major contention is that the aerial observation by police was an unreasonable search under the Fourth Amendment and an impermissible governmental invasion of privacy under Article I, Section 5, of the Hawaii State Constitution. Thus, defendant reasons, the search warrant issued as a result of the aerial surveillance was illegal and all evidence seized from defendant and his premises should have been suppressed. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The court below found that the helicopter surveillance was a "search" but came within the "plain view" exception to the Fourth Amendment and denied the motion to suppress. Although we find that the circuit court's decision was correct, our affirmance rests on different reasoning. This, of course, does not disturb the conclusion reached by the court below. Waianae Model Neighborhood Area Association v. City and County of Honolulu, 55 Haw. 40, 514 P.2d 861 (1973); Federal Electric Corp. v. Fasi, 56 Haw. 57, 527 P.2d 1284 (1974).

The initial question to be decided is whether the helicopter observation by Officer Pereira constituted a "search" subject to Fourth Amendment protections. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), is the leading case on the scope of the Fourth Amendment. There, the Supreme Court held that the governmental bugging of a caller in a public phone booth was a search to which the warrant requirements of the Fourth Amendment applied. In Katz, the court rejected the idea that some areas are automatically accorded constitutional protection while others are not, saying

But this effort to decide whether or not a given "area," viewed in the abstract, is "constitutionally protected" deflects attention from the problem presented by this case. For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

389 U.S. at 351, 88 S.Ct. at 511. The opinion has generally been understood to hold that official intrusions into matters or activities as to which an individual has exhibited a "reasonable expectation of privacy" are searches within the meaning of the Fourth Amendment. A reasonable expectation of privacy is something more than just a subjective expectation of privacy, it must also be an expectation that "society is prepared to recognize as reasonable." Harlan, J., concurring, United States v. Katz, 389 U.S. at 361, 88 S.Ct. at 516.

Even before Katz, however, the courts had recognized that certain governmental observations, interceptions and seizures were beyond the scope of the Fourth Amendment. One such exception has been where an object or activity is open and visible to members of the public. In this situation, it is obvious that no reasonable expectation of privacy can be asserted since the object or activity is in...