State v. Taua

• Decision Date: 28 June 2002
• Docket Number: No. 23992.,23992.
• Parties: STATE of Hawai`i, Plaintiff-Appellant, v. Murphy TAU`A, Defendant-Appellee.
• Court: Hawaii Supreme Court

49 P.3d 1227

98 Haw. 426

STATE of Hawai`i, Plaintiff-Appellant, v. Murphy TAU`A, Defendant-Appellee.

No. 23992.

Supreme Court of Hawai`i.

June 28, 2002.

Jerrie L. Sheppard, Deputy Prosecuting Attorney, on the briefs, for the plaintiff-appellant State of Hawai`i.

Mark Graven, on the briefs, for the defendant-appellee Murphy Tau'a.

MOON, C.J., LEVINSON, AND NAKAYAMA, JJ.; RAMIL and ACOBA, JJ., not joining.¹

Opinion of the Court by LEVINSON, J.

The plaintiff-appellant State of Hawai`i (the prosecution) appeals from an order of the second circuit court, the Honorable Shackley F. Raffetto presiding, granting the defendant-appellee Murphy Tau`a's motion to suppress (1) evidence that Maui Police Department (MPD) officers seized in executing a search warrant upon a vehicle in which Tau`a had been a passenger and (2) a written statement that Tau`a subsequently gave to the police.² On appeal, the prosecution principally contends that the circuit court clearly erred in connection with three of its findings of fact (FOFs) and, consequently, wrongly concluded, in its two conclusions of law (COLs), that a canine screening of the interior of the vehicle infringed upon Tau`a's federal and state constitutional rights to be free from unreasonable searches,³ and, thus, required that the evidence obtained as a result of and tainted by the canine screen be suppressed at trial.

We hold on the record in this case that, because Tau`a's personal constitutional rights were not violated by the canine screen, Tau`a could not invoke either article I, section 7 of the Hawai`i Constitution or the fourth amendment to the United States Constitution, see supra note 3, as a basis for suppressing the evidence recovered from the vehicle. Because the officers' subsequent search of the vehicle—executed pursuant to a warrant obtained, in part, upon the canine's "alert" to the presence of narcotics in the vehicle—was not unconstitutional with respect to Tau`a, the circuit court further erred in concluding that Tau`a's subsequent written statement was "tainted" and inadmissable. Accordingly, we remand this matter for further proceedings.

I. BACKGROUND

A. Factual Background

On December 28, 1999, MPD officers executed warrants to arrest and search the person of Aaron Yamashita.⁴ Acting on information that Yamashita would be in a particular area—specifically, an Eagle Hardware parking lot located in the Maui Market Place—in the late afternoon of December 28, 1999, approximately a dozen officers, in five different vehicles, participated in apprehending Yamashita. The officers awaited Yamashita's arrival in the area; when he arrived, driving a two-door "red king cab F-150 Ford pickup truck," the officers followed him and, shortly thereafter, succeeded in stopping the truck that he was driving.

In the truck with Yamashita, at the time the officers stopped it, were, in the front passenger seat, Jennifer Biho and, in the back seat, Tau`a. Although the officers ordered all three occupants out of the truck, it appears that they did not immediately heed the officers, because the record reflects that the officers themselves "opened" the truck's doors and that Yamashita was "taken out of the [truck] and proned out," Biho was "taken out of the [truck]," and Tau`a was "removed" from the truck, which, apparently, necessitated that two officers briefly enter it in order to reach him in the back seat.⁵ Yamashita, Biho, and Tau`a were kept separated. The officers did not have warrants to search or arrest either Biho or Tau`a; nor did the officers have a warrant to search anything other than Yamashita's person.

The warrant authorizing a search of Yamashita's person was not, however, immediately executed. Rather, the officers asked Yamashita for his consent to search the truck. He refused, responding that the truck was not his.⁶ Thereafter, within approximately ten or fifteen minutes of the officers stopping the truck, MPD Officer William Gannon, together with his "drug detection dog" Ben,⁷ conducted a "canine screening" of the truck.⁸ Officer Gannon described the canine screening that he conducted with Ben of the truck as follows:

Utilizing a leash, we start[ed] at the front of the vehicle, work[ing our] way along the driver's side. At this point in time the door had been open[ed][p]rior to my arrival[.]... The door was wide open.

Me having a four-foot lead, a leash, Ben detected the odor emanating from within the vehicle and immediately entered the vehicle, jumped over the driver's side seat through this opening between the front seats. There is a console that can fold down[, which] was open.

Ben made entry through that opening and immediately alerted to the base of the [front] passenger side seat.

Throughout his testimony, adduced during the hearing conducted in connection with Tau`a's motion to suppress, Officer Gannon consistently asserted that Ben had first detected the odor of narcotics while outside the vehicle, but did not "alert" to the actual location of those narcotics under the front passenger side seat until inside the truck.⁹ According to Officer Gannon, Ben is trained to "go to the strongest source [of an odor he has detected] as fast as he can," or, in other words, to "follow his nose." Officer Gannon asserted that detecting or "indicating" an odor is distinct from an "alert," but did not elaborate with any degree of specificity as to what the distinction was. However, Officer Gannon did explain that, "[o]nce [Ben] indicates [an] odor, he's going to take his nose, which is trained to detect the odor at the strongest source."

Because of Ben's size, temperament, quickness, agility, and training, Officer Gannon asserted that he could not have prevented Ben from jumping into the truck once Ben had detected the odor of narcotics emanating from it. After Ben "alerted" to the presence of narcotics in the truck, Officer Gannon told him, "Good boy," pulled him out of the truck, and ceased conducting the canine screening. Throughout Ben's sojourn in the truck, Officer Gannon asserted that he did not enter it himself, but conceded that his "hand maybe" broke "the pla[ne] of the door" as he was pulling Ben out of the truck. After Ben "alerted" to the presence of narcotics in the truck, Officer Callinan executed the warrant to search Yamishita's person; however, Officer Callinan did not find anything incriminating on Yamashita's person.

The truck was towed to a police station pending the issuance of a warrant to search it. Subsequently, upon Officer Gannon's affidavit,¹⁰ a warrant was issued to search the truck, and, in executing the warrant, officers found: (1) various items of alleged drug paraphernalia, some of which contained "residue," in the "third door/panel"; (2) a nine millimeter semi-automatic pistol under "the back seat" (apparently on the driver's side); and (3) a "cut plastic straw (loader)," apparently under the front seat.¹¹ These items predicated the three-count indictment against Tau`a in the present matter, which charged him with committing, as either a principal or an accomplice, the offenses of promoting a dangerous drug in the third degree, in violation of Hawai`i Revised Statutes (HRS) § 712-1243(1) (1993), prohibited acts related to drug paraphernalia, in violation of HRS § 329-43.5(a) (1993), and unlawful place to keep a firearm, in violation of HRS § 134-6(d) (Supp.2000).

The record on appeal contains scant factual information as to what transpired after Ben alerted to the presence of narcotics in the truck. However, it appears that, at some point after the truck was searched and the foregoing items found, Tau`a was arrested, initialed and signed a MPD Form No. 103, which informed him of his "constitutional rights" and pursuant to which he waived those rights, and gave a written statement to police.¹²

B. Procedural Background

Before his trial was due to commence, Tau`a filed a motion in which he sought to suppress and preclude the prosecution from using at trial (1) "all evidence [that] was seized ... on December 28, 1999[,] as such search and seizure violated [his] rights under Article I, Section 7 of the Hawai`i State Constitution and the Fourth and Fourteenth Amendments of the United States Constitution,"¹³ and (2) "all statements made ... by [him] as tainted fruits of the initial unlawful search and seizure." Conceding that, generally speaking, a person does not have a reasonable expectation of privacy in the air surrounding his or her effects and, therefore, that "a narcotics detection dog may sniff the air outside a car or a suitcase without a search warrant," the crux of Tau`a's argument was that "the police may not[, however,] send the dog into a car or closed container to physically venture into places where the police may not go." Tau`a cited several federal cases and this court's decision in State v. Groves, 65 Haw. 104, 649 P.2d 366 (1982), as support for his position.

Because, in Tau`a's view, Ben's alert to the presence of narcotics was unlawful, it could not be used as a predicate for establishing probable cause to issue a warrant to search the truck; thus, Tau`a contended that Officer Gannon's affidavit, see supra note 10, redacted of its references to Ben's alert, was "insufficient to establish probable cause" to search the truck. Finally, Tau`a urged that, insofar as both Ben's "dog sniff" and the search warrant "violated the Fourth Amendment and article I, section 7," his subsequent written statement, which was "obtained as a result of [those] violations," was "tainted and must be suppressed as `fruits of the poisonous tree,'" citing, in this regard, State v. Bonnell, 75 Haw. 124, 856 P.2d 1265 (1993).

In opposition, the prosecution's principal argument was that Tau`a "had no [reasonable] expectation of privacy [in the truck] because he was a mere passenger in a vehicle [that] was parked in a public parking lot." Thus, the prosecution, citing both state (including Bonnell) and federal cases, urged...