State v. Tagaolo

• Decision Date: 04 May 2000
• Docket Number: No. 22541.,22541.
• Citation: 2 P.3d 718,93 Haw. 314
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Samuelu TAGAOLO, Defendant-Appellant
• Court: Hawaii Court of Appeals

2 P.3d 718

93 Haw. 314

STATE of Hawai`i, Plaintiff-Appellee, v. Samuelu TAGAOLO, Defendant-Appellant

No. 22541.

Intermediate Court of Appeals of Hawai`i.

May 4, 2000.

Michael G.M. Ostendorp and Shawn A. Luiz, on the briefs for Defendant-Appellant.

Alexa D.M. Fujise, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff-Appellee.

BURNS, C.J., WATANABE and ACOBA, JJ.

Opinion of the Court by BURNS, C.J.

Defendant-Appellant Samuelu Tagaolo (Tagaolo) appeals the circuit court's April 30, 1999 Judgment, upon a jury's verdict, convicting him of Possession of Firearm by a Person Convicted of Certain Crimes, Hawaii Revised Statutes (HRS) §§ 134-7(b) and (h) (Supp.1999); Possession of Ammunition by a Person Convicted of Certain Crimes, HRS §§ 134-7(b) and (h) (Supp.1999); and Place to Keep Pistol or Revolver, HRS §§ 134-6(c) and (e) (Supp.1999). Specifically, he challenges some of the February 23, 1999 Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Suppress Items (FsOF, CsOL, and Order). We conclude that Tagaolo's appeal has merit. We vacate and remand for further proceedings.

BACKGROUND

On February 2, 1999, Tagaolo filed his Motion to Suppress Items (M/S) seeking to suppress evidence of a semi-automatic handgun and an ammunition magazine containing two rounds. He argues that these items were seized from his fanny pack (also referred to herein as a "fanny bag") following an illegal search. The M/S was heard on February 16, 1999. At the conclusion of the hearing, the circuit court stated that "[w]ith respect to the motion to suppress evidence, that is denied. There's no serious controversy to the version of events given by the police and by the Ward security personnel. And there being a valid search warrant, the search, the subsequent search was, therefore, legal."

The February 23, 1999 FsOF, CsOL, and Order state in pertinent part:

1. On September 17, 1998, Glen Sauer (Sauer) was employed by "Victoria Ward" as a Security Officer.

2. At about 11:26 a.m. on that date, Sauer was sent to the parking lot of 1240 Ala Moana Boulevard.

3. Sauer was sent to the area on a report of a person requesting assistance in "jump starting" a vehicle in the parking lot.

4. When he arrived in the area, Sauer was met by Samuelu Tagaolo [(Tagaolo)]. [Tagaolo] was the person requesting Sauer's assistance.

5. Sauer was unable to get the vehicle "jump started".

6. During their encounter, Sauer began to get suspicious about [Tagaolo] and the vehicle. He requested that a check be made to determine the status of the vehicle. Eventually, Sauer was informed that "Budget Rent-a-Car", the registered owner of the vehicle, had reported the vehicle as an outstanding stolen vehicle.

7. Upon receiving this information, Sauer requested the presence of a police officer from the Honolulu Police Department ("HPD").

8. On September 17, 199[8],¹ Domingo Oliveros² (Oliveros) was employed as a police officer with HPD. On that date, he was sent to 1240 Ala Moana Boulevard on a report from the "Victoria Ward" security department of a possible stolen vehicle. Oliveros arrived at the scene at about noon.

9. Upon arrival, Oliveros noticed "Victoria Ward" security officers waving their arms at him in an apparent attempt to get his attention. Oliveros also noticed [Tagaolo] in the parking lot.

10. As he pulled into the parking lot, Oliveros saw that the security officers were pointing to [Tagaolo]. Oliveros got out of his vehicle and told [Tagaolo] to sit down. [Tagaolo] ran past Oliveros.

11. [Tagaolo] ignored Oliveros' commands to stop. Oliveros gave chase. Oliveros saw a black fanny bag around [Tagaolo's] neck and shoulder. During the chase, Oliveros saw [Tagaolo] grabbing at the bag. At one point, it appeared to Oliveros that [Tagaolo] was attempting to open the bag at the zipper.

12. Eventually, Oliveros caught up with [Tagaolo] and tackled him. [Tagaolo] struggled with Oliveros and resisted his commands. The security officers assisted Oliveros but [Tagaolo] was able to get to his feet and continued to struggle.

13. At that point Sgt. Kerry Inouye (Inouye) arrived. He called out "Spray" and then delivered a one-second burst of pepper spray to [Tagaolo's] face.

14. Thereafter [Tagaolo] was taken into custody by Oliveros.³

15. HPD Officer Reupena Fitisemanu (Fitisemanu) arrived at the scene just as [Inouye] "sprayed" [Tagaolo]. Fitisemanu recovered the black fanny bag from Oliveros.

16. Thereafter, Fitisemanu carried the bag to his "Cushman" vehicle and tossed it onto the trunk of his "Cushman". When the bag landed, Fitisemanu heard a loud "thump" sound resembling that of a heavy metal object. Fitisemanu picked up the bag and felt the outer part of the bag. Fitisemanu noticed that the bag was made out of a soft material. Fitisemanu felt the shape of a firearm, specifically the handgrip, barrel, and trigger and trigger guard areas. Neither Fitisemanu nor any other HPD officer or "Victoria Ward" security officer opened or otherwise searched the bag in any way.

17. Later that day, Fitisemanu submitted the bag into evidence at the HPD Evidence Room. Thereafter, he prepared a search warrant.⁴

18. The following day, the Honorable Tenny Z. Tongg approved the search warrant for the bag.

19. The same day, Fitisemanu searched the bag and found a semi-automatic firearm, a firearm magazine, and two rounds of live firearm ammunition. All of the items were submitted back into evidence.

20. Sauer and Oliveros corroborated Fitisemanu's testimony that the bag was not opened or otherwise searched at the scene of the arrest.

21. [Tagaolo] called Vaa Aitavele (Aitavele) as a witness during the hearing on his motion. Aitavele was present at the scene during the arrest. Aitavele did not see the police or anyone else open the bag at the scene of the arrest.

22. [Tagaolo] testified at the hearing. [Tagaolo] acknowledged that his vision was impaired due to the "spray" to his face. [Tagaolo] did not see the police or anyone else open or otherwise search the bag at the scene of the arrest.

23. The Court finds the testimony of Fitisemanu as credible, and that the bag was not opened or searched⁵ prior to the execution of the valid search warrant.

CONCLUSION OF LAW

1. The Court concludes that the search warrant in this case meets the relevant state and federal constitutional standards. State v. Nav[a]s, 81 Hawaii [Hawai`i] 113, 913 P.2d 39 (1996); State v. Decano, 60 Haw. 205, 588 P.2d 909 (1978); State v. Sepa, 72 Haw. 141, 808 P.2d 848 (1991).

2. The affidavit in support of the search warrant set forth sufficient information from which the police could conclude that the item sought to be recovered (i.e., the firearm) would be located in the fanny bag. State v. Sepa, supra.

3

. In addition, the facts, taken together with all reasonable inferences from those facts, clearly support a finding of probable cause. State v. Decano, supra.

ORDER

Based on the foregoing, the Court denies [Tagaolo's] "Motion to Suppress Items".

(Footnotes added.)

A trial commenced on March 2, 1999, and, on March 3, 1999, a jury found Tagaolo guilty of Count I, Possession of a Firearm by a Person Convicted of Certain Crimes; Count II, Possession of Ammunition by a Person Convicted of Certain Crimes; and Count III, Place to Keep Pistol or Revolver. The April 30, 1999 Judgment sentenced Tagaolo to five years' imprisonment for each of Counts I and II and ten years' imprisonment for Count III, with all terms running concurrently.

STANDARDS OF REVIEW

The standard for appellate review of a circuit court's findings of fact and conclusion of law is as follows:

Appellate review of factual determinations made by the trial court deciding pretrial motions in a criminal case is governed by the clearly erroneous standard. A finding of fact is clearly erroneous when (1) the record lacks substantial evidence to support the finding, or (2) despite substantial evidence in support of the finding, the appellate court is left with a definite and firm conviction that a mistake has been made. The circuit court's conclusions of law are reviewed under the right/wrong standard. Furthermore, in a case such as the one at bar, the proponent of a motion to suppress has the burden of establishing not only that the evidence sought to be excluded was unlawfully secured, but also, that his own Fourth Amendment rights were violated by the search and seizure sought to be challenged. The proponent of the motion to suppress must satisfy this burden of proof by a preponderance of the evidence.

State v. Balberdi, 90 Hawai`i 16, 20-21, 975 P.2d 773, 777-78 (1999) (citing State v. Anderson, 84 Hawai`i 462, 466-67, 935 P.2d 1007, 1011-12 (1997)).

"The circuit court's ruling on a motion to suppress is reviewed de novo to determine whether, as a matter of law, the ruling was `right' or `wrong'." State v. Kauhi, 86 Hawai`i 195, 197, 948 P.2d 1036, 1038 (1997).

"The determination of whether a search was lawfully conducted is entirely a question of law, which this court reviews de novo under the right/wrong standard." State v. Wallace, 80 Hawai`i 382, 391, 910 P.2d 695, 704 (1996).

DISCUSSION

Tagaolo contends that the circuit court reversibly erred when it denied his M/S. We agree. Specifically, Tagaolo challenges FsOF Nos. 11 and 16 and CsOL 1 through 3.

FsOF Nos. 11 and 16

Tagaolo challenges that part of FOF No. 11 that states, "During the chase, [Officer Domingo Oliveros (Officer Oliveros)] saw [Tagaolo] grabbing at the bag. At one point, it appeared to [Officer] Oliveros that [Tagaolo] was attempting to open the bag at the zipper." Our review of the record reveals sufficient evidence supporting FOF No. 11. Officer Oliveros testified on direct or cross-examination that, during the chase, Tagaolo "was fumbling around with" the bag, "stopped and fumbled around with the bag," "[l]ooked like he was fumbling around with the zipper," and "through the whole run [Tagaolo] was fumbling...