State v. Tsukiyama

• Decision Date: 30 August 1974
• Docket Number: No. 5484,5484
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Masao Lydell TSUKIYAMA, also known as Lydell Masao Tsukiyama, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1099

525 P.2d 1099

56 Haw. 8

STATE of Hawaii, Plaintiff-Appellee, v. Masao Lydell TSUKIYAMA, also known as Lydell Masao Tsukiyama, Defendant-Appellant.

No. 5484.

Supreme Court of Hawai'i.

Aug. 30, 1974.

Syllabus by the Court

1. Not every street encounter between the police and public constitutes a seizure.

2. In order to determine if the defendant's liberty was restrained and he was, therefore, seized, we must evaluate the totality of the circumstances and decide whether or not a reasonably prudent person would believe he was free to go.

3. The mere presence of five to seven uniformed officers on a public street in an urban area at 1:00 a. m. is not in itself a show of authority or form of coercion when a group of eight civilians is also present in the same area of the street, and informal questions properly addressed to one of such individuals by an officer so present under such circumstances is only a minimal intrusion on his privacy and does not rise to the level of a seizure within the meaning of the Fourth Amendment to the U.S.Const., or Article I, Section 5, of the Hawaii Const., where no element of command, authority, force, threat, coercion, physical stopping or restraint is present.

David S. Hobler, Deputy Public Defender (Donald K. Tsukiyama, Public Defener, Honolulu, of counsel), for defendant-appellant.

Charlotte E. Libman and Michael A. Weight, Deputy Pros. Attys. (Barry Chung, Pros. Atty., of counsel), for plaintiff-appellee.

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

OGATA, Justice.

The defendant, Masao Lydell Tsukiyama, also known as Lydell Masao Tsukiyama, was convicted by a jury of three criminal offenses: (1) possession of harmful drug; (2) possession of narcotic drug; and (3) possession of a firearm by a person convicted of certain crimes. Thereafter the trial court sentenced the defendant to imprisonment for ten years for possession of harmful drug, one year apiece for possession of narcotic drug and possession of firearms by a person convicted of certain crimes, each of these sentence to be served concurrently. He now appeals and alleges for ground of reversal that the trial court erred in its refusal to grant his motion to suppress the evidence. For the reasons set forth herein, we affirm each of these convictions.

On December 29, 1972, at about 1:00 a. m., police officer Paul Kohler, while on routine patrol, came upon three parked vehicles along the mauka (north) side of North School Street in Honolulu, an area of the city comprised of a mixture of residences and miscellaneous business establishments. The officer, after noticing these three parked vehicles, saw numerous people standing by the western-most of such parked vehicles, which had its hood up or open, and which will be designated for convenience as vehicle 1. Likewise the vehicle parked behind vehicle 1 will be designated as vehicle 2, and the last parked vehicle will be designated as vehicle 3, which was a blue Comet. Officer Kohler recognized one of the persons among the group by vehicle 1 as Russell Johansen, a person known to Kohler as a 'police character,' which term Kohler defined as a person who had been in jail for the commission of other crimes. In light of these circumstances, Kohler felt that he should investigate the cause of the congregation around vehicle 1. He informed central police communications that he was leaving his car for such an investigation and at the same time requested for assistance. Officer Kohler parked his car just west of vehicle 1; as he got out and approached vehicle 1, but before he reached that vehicle, he met the defendant who was walking towards the officer. The defendant then asked Officer Kohler for a flashlight. Defendant informed Officer Kohler that vehicle 1 was stalled. The officer then went back to his vehicle, got his flashlight and turned it over to the defendant, who then returned to vehicle 1. Officer Kohler followed the defendant to vehicle 1.

At about that time, other police officers began to arrive at the scene, pursuant to the call for police assistance by Officer Kohler. Officer Albert Kaalele was either the first or second officer to arrive, and he parked his vehicle behind vehicle 3, got out and walked towards vehicle 1. When he saw Officer Kohler safe and well among the group of people around vehicle 1, he started to walk back to his police vehicle, and just before he reached vehicle 3, he noticed that the person who had been seated on the driver's seat of vehicle 3, at the time he walked towards vehicle 1, had disappeared. So he walked around the front of vehicle 3, and towards the driver's side of that vehicle, when he noticed that the person who had been seated was now lying on the front seat of vehicle 3. Officer Kaalele continued to walk towards his vehicle, and after getting his flashlight from his vehicle, he returned to the passenger side of vehicle 3, opened the door and asked the person lying on the front seat if something might be wrong with him. This person was later identified as Anthony Oh Young. After Oh Young came out from the blue Comet, and as he stood outside, next to its front passenger door, Officer Kaalele then asked Oh Young whose car it was, and he replied by pointing to the group of people around vehicle 1, and said it belongs to 'one of the guys up here.'

Just then, the defendant, who had been with the group of people around vehicle 1, walked over towards Officer Kaalele, who at that time was conversing with Oh Young. Officer Kaalele asked the defendant if he knew to whom vehicle 3 belonged. Defendant responded 'yes, that is mine.' Officer Kaalele had noticed a bicycle in the back of vehicle 3, so he asked the defendant whose bicycle was in the car, to which the defendant answered that it belongs to one of his sons. Officer Kaalele then asked the defendant if he had some kind of identification and defendant said that it was in the glove compartment of his car. Officer Kaalele then asked the defendant 'would you go and get it?' Without any protest or objection, defendant then proceeded around the front of vehicle 3, to the driver's side, followed by Officer Kaalele, and defendant opened the driver's door. The defendant then entered the vehicle, leaned towards the glove compartment, and with his keys in his right hand, he opened the glove compartment about two or three inches and inserted his left hand into the glove compartment. Officer Kaalele, who stood on the driver's side with his flashlight focused on the glove compartment, watched the movements of defendant's left hand. At that time Officer Dennis Azevedo, who had arrived soon after Officer Kaalele had parked his vehicle behind vehicle 3, was standing on the passenger side of the same vehicle with his flashlight also shining in the same direction on the glove compartment. Officer Kaalele than saw defendant's left hand touch something, which the officer recognized to be the butt of a revolver. Officer Kaalele then dove into the vehicle for the defendant, and after a scuffle between the officer and the defendant, he was subdued and arrested. Officer Azevedo recovered the gun still in the glove compartment of vehicle 3, and he also recovered from the glove compartment a receptacle containing secobarbitals and three marihuana cigarettes. Likewise, in connection with this search, Officer Newton Harbottle recovered from the same vehicle a brown paper sack which contained three lids of marihuana.

The pre-trial motion to suppress was filed by defendant in the court below on March 21, 1973, and the motion was heard on April 26, 1973. On the same day, after the hearing, the trial court ruled and held that under the circumstances the search was proper, and that the motion was without merit. When the trial of this case began on May 21, 1973, the defendant again orally renewed his motion to suppress during the trial, which was again denied.

At issue is whether the conduct of the police officers at any time before Officer Kaalele observed the butt of a revolver in vehicle 3 constituted a 'seizure' of the defendant within the meaning of the Fourth Amendment to the Federal Constitution and Article I, Section 5 of the Hawaii State Constitution. ¹

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny make it clear that not every street encounter between the police and the public constitutes a 'seizure.'

Obviously, not all personal intercourse between plicemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred. Terry, supra at 19, fn. 16, 88 S.Ct. at 1879.

In order to determine if the defendant's liberty was restrained and he was, therefore, seized, we must evaluate the totality of the circumstances and decide whether or not a reasonably prudent person would believe he was free to go. The officer involved testified that he did not intend to prevent the defendant's departure from the scene. However, it is appropriate to apply an objective standard, rather than a subjective one. It is well settled that when a 'seizure' of a person is made, an objective standard must be applied to determine if the 'seizure' is reasonable. ² Likewise, we should use an objective standard to determine whether or not a 'seizure' has taken place. Cf. State v. Delmondo 54 Haw. 552, 512 P.2d 551 (1973).

Prior to the time Officer Kaalele began addressing questions to the defendant, he was voluntarily present at the scene of the encounter to aid his acquaintances in repairing or moving a stalled automobile (vehicle 1). When Officer Kaalele inquired the defendant about the ownership of the blue Comet automobile (vehicle 3) and the bicycle observed by the officer in the rear of the vehicle, he did so in a conversational manner. He then asked the defendant if he had some identification....