State v. Texeira

• Decision Date: 31 March 1980
• Docket Number: Nos. 6133,6134,s. 6133
• Citation: 62 Haw. 44,609 P.2d 131
• Parties: STATE of Hawaii, Plaintiff-Appellant, v. Robert TEXEIRA, Defendant-Appellee. STATE of Hawaii, Plaintiff-Appellant, v. Ronald R. RIVERA, Rudolpho Sanchez, Gilbert Arang, Joseph Kaleikini, Jerry A. Morse, Sam Zane, Fred M. Kiyabu, Herman Victor, Ranny Kiaha, Robert A. Holbron and Thomas M. Key, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 131

609 P.2d 131

62 Haw. 44

STATE of Hawaii, Plaintiff-Appellant, v. Robert TEXEIRA, Defendant-Appellee.

STATE of Hawaii, Plaintiff-Appellant, v. Ronald R. RIVERA, Rudolpho Sanchez, Gilbert Arang, Joseph

Kaleikini, Jerry A. Morse, Sam Zane, Fred M.

Kiyabu, Herman Victor, Ranny Kiaha,

Robert A. Holbron and Thomas

M. Key, Defendants-Appellees.

Nos. 6133, 6134.

Supreme Court of Hawai'i.

March 31, 1980.

Syllabus by the Court

1. Stipulation to consolidate a hearing on a motion to suppress evidence with trial on the merits did not constitute a waiver by the State of its statutory right to appeal from the adverse ruling of the trial court on the motion to suppress.

2. Observation of gambling activity by officer who trespassed on neighboring landowner's property to gain vantage point did not violate defendants' constitutional right against unreasonable searches and seizures where defendants did not have a reasonable expectation of privacy with respect to individuals who might have happened to be on the adjoining property.

3. The propriety of a challenged visual or aural warrantless search is to be determined by whether police observation of objects, activities, and statements sought to be suppressed was an invasion of the defendant's reasonable expectation of privacy.

4. The defendant's expectation of privacy in the area searched must be legitimate and this means more than a subjective expectation that the activity in which he is engaged will not be discovered.

5. In determining the legitimacy of the defendants' expectation of privacy the test to be applied is (1) whether the defendants had exhibited an actual expectation of privacy and (2) whether the expectation was one which society would deem to be reasonable.

6. What an individual knowingly exposes to the plain view and plain hearing of outsiders is not a subject of Fourth Amendment protection.

7. Absent exigent circumstances, the police may not enter a private residence or building to effect a warrantless search and seizure; this rule applies equally where entry is made to effect a warrantless arrest.

8. Exigent circumstances justifying a warrantless entry exist when immediate police response is required to prevent imminent danger to life or serious damage to property, or to forestall the likely escape of a suspect or the threatened removal or destruction of evidence.

Winston K. Q. Wong and Archibald Kaolulo, Deputy Pros. Attys., Honolulu, for plaintiff-appellant.

Anson O. Rego, Waipahu, for defendants-appellees.

Before RICHARDSON, C. J., and OGATA and MENOR, JJ. ^*

PER CURIAM.

By stipulation of the parties S.C. No. 6133 and S.C. No. 6134 have been consolidated for the purposes of appeal. The State appeals from the order granting the defendants' motion to suppress and from the judgments of acquittal entered in favor of the defendants by the district court.

Prior to trial the defendants moved to suppress the testimony of Officer Takahashi on the ground that it was based on information obtained in violation of the search and seizure requirements of the Fourth Amendment. By stipulation the hearing on the motion and trial on the merits were consolidated. At the conclusion of the consolidated motion hearing and trial, where only police testimony was adduced, the court announced that the defendants' motion to suppress would be granted, and that since the officer's proffered testimony was crucial to the State's case, the defendant's motion for judgment of acquittal would also be granted. After the prosecutor was asked by the court if he had any objection, the following colloquy transpired:

MR. WONG: No, Your Honor, except I believe the State cannot appeal if you have acquitted the defendants.

THE COURT: I've granted his motion to suppress.

MR. WONG: Correct me if I'm wrong, but you said the defendants are acquitted.

THE COURT: You don't have any evidence. I'm dismissing the case against them. Once you take Officer Takahashi's testimony out, you don't have any case.

MR. WONG: I understand that. I'm saying that the issue for appeal is not possible.

THE COURT: Well, I don't believe so; but if you believe so, I'm sure Mr. Rego won't object. That's all.

The defendants contend that the State's right to appeal has been foreclosed by reason of the judgments of acquittal in their favor. We disagree. The stipulation for the joint hearing on the motion to suppress and the trial on the merits did not constitute a waiver by the State of its statutory right to appeal from the adverse ruling of the trial court on the motion to suppress. It is clear from the record that the trial court first directed its ruling to the defendants' motion to suppress, and then having ruled in their favor erroneously assumed that judgments of acquittal could thereafter be entered. The trial court may not in this manner deprive the State of its statutory right, under HRS § 641-13(7), to appeal from the order of suppression. ¹ Should this court uphold the order of suppression, the judgments of acquittal will, of course, be allowed to stand. Otherwise, the matter will be remanded for a new trial.

The question of whether the motion to suppress should have been granted presents a more serious problem. In abbreviated form, which is all that is necessary for our purposes, the salient facts are as follows: Acting on information received from an unnamed informant that gambling was being conducted at a location on Paakea Road, Waianae, known as the "Tanaka Place," Officer Takahashi, accompanied by Officer Lim, drove to Paakea Road, arriving there at approximately 10:00 p.m. He turned into Apana Road and saw the brightly illuminated building on Tanaka's premises. The Tanaka place was the third lot running from the intersection of Paakea and Apana Roads. Each of these three lots was occupied by buildings, and each was separated from the other by a wire fence running along a common boundary. In order for Officer Takahashi to approach the Tanaka building unobserved, he first had to climb over a fence between the first and second lots, and then crawl 80 to 100 yards across an open area behind the buildings on the second lot until he reached the fence separating this lot from the Tanaka premises. To avoid detection he stayed crouched behind this fence which was 15 to 20 feet away from the Tanaka building, and from this position was able to see into the brightly lighted interior through a screened opening in the structure. Although he had to move a few feet each way along the fence to take in more of the activities, he had no difficulty hearing and observing conduct within the building which he associated with a dice game in progress. At the end of fifteen minutes, he retraced his steps and returned to his vehicle where Officer Lim was waiting for him. From there they radioed for reinforcements and when the latter arrived, the officers went over the same route, and over onto the Tanaka premises by climbing a tree located at the boundary line. They entered the building through an unlocked screen door, arrested the defendants, and confiscated a dice cup, dice, croupier stick, and varying amounts of currency found on a gambling table around which the defendants had been standing.

The defendants rely very heavily upon the fact that Officer Takahashi did not first obtain permission from the owners of the first and second lots before crossing over their respective premises to reach his vantage point. According to police testimony these owners were not at home at the time. The fact that the police were technically trespassing upon property not owned by any of the defendants appears to have also weighed heavily upon the trial court:

I'm making a ruling that there was reasonable expectation of privacy on the part of the defendants and further that I don't think society can condone governmental officers trespassing in order to gain vantage points upon which they may view alleged criminal activity and it is on that basis that the Court is granting the motion to suppress Officer Takahashi's testimony; and on the basis of the Court's action, the Court will render judgment of acquittal against (sic) all of the defendants, dismiss the cases against them.

This court has held, however, that a technical trespass, even where it is committed upon the defendant's property, is not necessarily determinative of the issue of whether or not the subsequent warrantless search was improper. State v. Brighter, 60 Haw. 318, 589 P.2d 527 (1979); State v. Kaaheena, 59 Haw. 23, 575 P.2d 462 (1978). The real question, on the facts of this case, is whether police observation of the objects, activities, and statements sought to be suppressed was an invasion of the defendant's reasonable expectation of privacy. State v. Brighter, supra ; State v. Boynton, 58 Haw. 530, 574 P.2d 1330 (1978); State v. Kaaheena, supra ; State v. Kender, 60 Haw. 301, 588 P.2d 447 (1978); State v. Stachler, 58 Haw. 412, 570 P.2d 1323 (1977). This expectation must be legitimate and means more than a subjective expectation that the activity in which the defendant is engaged will not be discovered. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). In making this determination, the two-fold test to be applied here is (1) whether the defendants had exhibited an actual expectation of privacy and (2) whether the expectation was one which society would deem to be reasonable. 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (Harlan, J., concurring); State v. Kaaheena, supra ; State v. Stachler, supra.

Using this standard as a measure, this court has held that where a wooden fence effectively prevented peeking from the outside, State v. Boynton, supra, or where gambling activity within the building was shielded from the view of passersby by drapes and venetian blinds, State v. Kaaheena, supra, or where California grass within a boundary fence was allowed to grow to a height sufficient to hide marijuana plants from normal...