State v. Texeira

• Decision Date: 01 November 1967
• Docket Number: No. 4573,4573
• Parties: STATE of Hawaii v. Abel TEXEIRA.
• Court: Hawaii Supreme Court

Page 593

433 P.2d 593

50 Haw. 138

STATE of Hawaii v. Abel TEXEIRA.

No. 4573.

Supreme Court of Hawai'i.

Nov. 1, 1967.

Syllabus by the Court

1. The validity under the Fourteenth Amendment of the United States Constitution of a search and seizure by state officers is determined by the same standard used to determine the validity under the Fourth Amendment of a search and seizure by federal officers.

2. A search without a warrant incidental to an arrest without a warrant is valid only where the officers had probable cause to believe the defendant was committing a crime.

3. Probable cause to make an arrest without a warrant may be based on hearsay as long as there is a substantial basis for crediting the hearsay, such as past reliability of the informant or verification of many of the details of the informant's statement before making the arrest.

4. A state court may interpret language of the state constitution as affording greater protection than the United States Supreme Court has provided in interpreting the same language in the Federal Constitution.

5. The wisdom of the federal decisions justifies construing the state constitution to provide no greater protection than that provided by the Federal Constitution.

6. A defendant is not absolutely entitled to disclosure of an informant's identity for the purpose of challenging an arrest without a warrant as lacking probable cause even where the arresting officer relied heavily on the informant's statement.

7. The informer privilege is a necessary weapon in the police enforcement arsenal and is grounded upon the sound policy of protecting those who provide the police with information.

8. The informer privilege will be limited only where the defendant can establish that failure to disclose interferes with his right to a fair trial.

9. The defendant is sufficiently protected in exercising his right to challenge the validity of an arrest underlying a search without a warrant if the trial court properly exercises its discretion to determine whether failure to disclose the informant's identity would interfere with the defendant's right to a fair trial.

Ambrose J. Rosehill, Honolulu, for appellant.

Barclay Bryan, Deputy Pros. Atty., City and County of Honolulu (John H. Peters, Pros. Atty., Honolulu, on the brief), for respondent.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

LEVINSON, Justice.

This case involves two important questions of criminal procedure and constitutional law: the test to be applied in determining whether an arrest without a warrant was based on probable cause and therefore whether a search incidental to that arrest was reasonable, and whether an officer should be required to reveal the name of an informer on whose information the officer relied in making an arrest without a warrant.

At 4:30 p. m. on March 1, 1965, officer Kim, a member of the narcotics detail of the Honolulu Police Department's Vice Division, received a phone call from an informer who had provided him with accurate information between 20 and 30 times in the past four years. The informer stated that the defendant was driving a light gray foreign station wagon from Kalihi to Palolo Housing, was accompanied by a woman named Linda, and was in possession of marihuana.

Officer Kim immediately informed his superior. After a brief meeting, officer Kim and several other officers proceeded to Palolo Housing. They arrived between 5:00 and 5:15 p. m., and parked across from Linda Fellez's building. The defendant and Linda arrived at 6:45 p.m.

The defendant drove into the parking lot and stopped his car, a light gray 1959 Datsun station wagon, in front of the building next to the one where Linda Fellez lived. The officers arrested the defendant while he was still in the car. One of the officers searched the defendant and found a cigarette in his trousers which later analysis proved to be marihuana. Although there is conflict in the testimony as to whether the marihuana cigarette was discovered on the defendant's person, he has not alleged that the jury's finding is not supported by substantial evidence.

The narcotics detail had the defendant under observation for four to six months before the arrest but had not obtained any evidence indicating that he was involved in narcotics activities. The defendant had no background of narcotics activities. Two other informers had told other members of the narcotics detail that the defendant was involved in narcotics activities. The officers knew the defendant associated with a woman named Linda Fellez, a known narcotics violator who lived at Palolo Housing.

On the ground that the arrest was not based on probable cause, the defendant moved to suppress the cigarette and to exclude a statement the officers alleged the defendant made to the effect that he smoked marihuana. The defendant also moved to have the name of the informer revealed. The defendant alleged disclosure was necessary to enable him adequately to attack the finding of probable cause both at the hearing on the motion to suppress and at trial. The trial court denied both motions.

I. Probable Cause

The Fourth Amendment to the Constitution of the United States protects a citizen against unreasonable searches and seizures by federal officers. That protection is applicable, through the Fourteenth Amendment, to action by state officers. It is enforced by the rule requiring exclusion of any evidence obtained as a result of an unreasonable search and seizure, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). For purposes of the Fourteenth Amendment the reasonableness of a search and seizure by state officers is determined by the same test applied to searches and seizures by federal officers, Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

Under the federal standard, applicable to the states, a search is reasonable only if it is made pursuant to a valid search warrant, or if it is with the consent of the person searched, or if it is incidental to a lawful arrest, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed.2d 653 (1950). Where the search is incidental to an arrest, the search cannot be sustained unless the arrest is based on probable cause as defined by the federal decisions, Ker v. State of California, supra, at 374 U.S. 34-35, 83 S.Ct. 1623

Under federal law, hearsay evidence is sufficient to support an arrest, with or without a warrant, as long as there is a substantial basis for crediting the hearsay, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Past reliability or verification of many of the details of the tip appear to be sufficient to justify reliance on the informer, Jones v. United States, 326 F.2d 124, 128-129 (9th Cir.1963), cert. denied, 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 499 (1964).

The facts in the case before us are virtually identical with the facts in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) and we find that case controlling. In Draper, an informer, labeled by the court a 'special employee,' ¹ who had provided accurate information in the past, told a federal narcotics agent that the defendant had gone to Chicago to buy narcotics and would return by train within two days. The informer described the defendant, including the clothing he would be wearing. He stated that the defendant would be carrying a tan zipper bag and would be walking rapidly. The narcotics agent waited at the train station, and on the second day, the defendant arrived by train from Chicago. The informer's description of the defendant was accurate. The agent arrested the defendant and searched him. The search produced two packages of heroin which the prosecution was permitted to introduce into evidence over the defendant's objection. The Supreme Court held that the officer had knowledge of sufficient facts to justify the arrest. The Court held that verification of every detail of the informer's statement except the possession of narcotics provided the officer with probable cause to believe the defendant was committing a crime, 358 U.S. at 313, 79 S.Ct. 329. The arrest was lawful and therefore the search and seizure were lawful, 358 U.S. at 314, 79 S.Ct. 329.

In this case, there was both verification of every fact the informer communicated to officer Kim, and a history of past reliability. The details of the description are no less specific. In fact in the present case, the evidence appears stronger. The defendant was accompanied by a known narcotics violator and the defendant had been under surveillance for several months. As in this case, there was no indication in Draper that the defendant had a background of narcotics convictions. The officers' failure to observe incriminating activity during the period when they had the defendant under surveillance is a relevant, but by no means determining, factor for the trial court to consider in deciding whether the officers had probable cause to make the arrest. Under the federal standard, the officers had probable cause to arrest the defendant. The search was performed incidental to a lawful arrest. Therefore, the trial court properly denied the motion to suppress the cigarette insofar as it was based on the Federal Constitution.

The federal decisions do not, however, prevent this court from extending greater protection in interpreting the state constitution where we determine it to be appropriate. ² In this case, however, we do not find it desirable to enlarge upon the protection afforded by the Federal Constitution.

Officers have probable cause to make an arrest when

the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that (a crime was being committed), Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925).

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