State v. Vance

• Decision Date: 13 November 1979
• Docket Number: 6079,Nos. 6078,s. 6078
• Citation: 602 P.2d 933,61 Haw. 291
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Michael A. VANCE, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. John Ray VANCE, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 933

602 P.2d 933

61 Haw. 291

STATE of Hawaii, Plaintiff-Appellee, v. Michael A. VANCE, Defendant-Appellant.

STATE of Hawaii, Plaintiff-Appellee, v. John Ray VANCE, Defendant-Appellant.

Nos. 6078, 6079.

Supreme Court of Hawai'i.

Nov. 13, 1979.

Rehearing Denied Dec. 12, 1979.

Syllabus by the Court

1. An arrest without a warrant for a misdemeanor offense is valid where the police had probable cause to arrest the defendant under a specific statutory provision although technically naming a different but closely related one.

2. Where justified by all the facts and circumstances of the case, a person arrested for a misdemeanor or petty misdemeanor offense may be temporarily incarcerated notwithstanding an offer of bail made on his behalf. A pre-incarceration search of the arrested individual is permissible where there exists the intent and authority to incarcerate.

3. Where an exhibit is a drug or chemical in the form of a powder or liquid which is readily susceptible of adulteration or substitution, a foundation must be laid connecting the exhibit with the defendant and showing the continuous whereabouts of the exhibit from the time it came into the possession of the police until it was laboratory tested. However, proof of chain of custody of the substance during the period after chemical analysis until introduction into evidence at trial is not required absent a specific allegation of tampering.

4. Under HRS § 712-1243 (1976), "Promoting a Dangerous Drug in the Third Degree," the State must only prove the knowing possession of a dangerous drug in any amount; proof of an amount usable for sale or consumption or a quantity capable of producing a narcotic effect is not required.

5. The possession of a microscopic trace of a dangerous drug in combination with other factors indicating an inability to use or sell the narcotic, may constitute a de minimis infraction within the meaning of HRS § 702-236 and therefore warrant dismissal of the charge otherwise sustainable under HRS § 712-1243.

Victoria Scurlock Marks, David L. Turk, A Law Corp., Honolulu, for defendants-appellants.

Arthur E. Ross, Deputy Pros. Atty., Dept. of the Pros. Atty., Honolulu, for plaintiffs-appellees.

RICHARDSON, C. J., OGATA and MENOR, JJ., and MARUMOTO and KOBAYASHI, Retired Justices.

RICHARDSON, Chief Justice.

This is an appeal from the judgments entered by the trial court finding defendant-appellant John Ray Vance and his brother, defendant-appellant Michael A. Vance, guilty of promoting a dangerous drug in the third degree. John Vance was convicted for possessing cocaine and Michael Vance was convicted for possessing secobarbital. In each case, the dangerous drug was discovered in the course of a pre-incarceration search conducted by the police. The appellants' cases were consolidated for trial and are brought together on appeal.

The appellants allege that numerous errors were committed by the court below, each of which requires the reversal of the judgments of conviction. We have carefully reviewed the record and for the reasons hereinafter stated, we affirm.

John Ray Vance was initially arrested on July 30, 1975 for the offense of assault in the third degree. He was arrested by Officer Dennis Bernard after the officer, while standing a few feet away, witnessed the appellant knock a fellow policeman unconscious.

After his arrest, the appellant was transported to the police station. He arrived in a stupor and appeared intoxicated or high on drugs. When the police attempted to book him, he was belligerent and uncooperative. The standard operating procedure at the stationhouse in such a situation is to place the arrested person in a cell until he has calmed down sufficiently to complete the booking procedures. Therefore, John Vance was taken to the cellblock and, at approximately 3:13 a. m., he was searched for weapons and contraband prior to being placed in the cell. Recovered from the appellant's right front pants pocket during this search were a small bottle containing a white powder with a silver spoon-like object attached to it and a glass vial containing a white powder residue. Believing the white powder to be narcotics, the police officer who conducted the search placed the appellant under arrest for promoting a dangerous drug in the third degree.

Later that same morning, at approximately 3:53 a. m., Michael Vance, brother of John, accompanied by their mother, Mrs. Virginia Vance, came to the police station to post bail for John. While waiting, Michael began pounding the counter and shouting threatening obscenities at the police. Ignoring several warnings to keep quiet, he continued his disruptive behavior for approximately ten minutes. At this point, Officer Guy Takiguchi with the assistance of two other officers arrested Michael for disorderly conduct. Michael resisted and had to be subdued by the arresting officers. Thereafter, he was brought into the receiving desk area where he was searched. In the process of conducting this search, Office Takiguchi reached into Michael's top left shirt pocket and recovered a transparent plastic packet containing three white tablets. The packet and its contents were confiscated and Michael was placed under arrest for promoting a dangerous drug in the third degree. The appellant was then booked and incarcerated.

Prior to Michael's arrest, Mrs. Vance offered to pay the required bail to procure John's release. When Michael was arrested, Mrs. Vance likewise offered to post bail for him. In both instances, the police did not immediately accept her offers and admit her sons to bail.

The issues raised by this appeal warranting our consideration are as follows:

1. Whether there existed probable cause sufficient to justify the initial warrantless arrest of each appellant.

2. Whether the search of Michael's person resulting in the recovery of the dangerous drug secobarbital was a valid pre-incarceration search.

3. Whether the prosecution established a chain of custody of the substances seized from the appellants sufficient to allow their introduction into evidence.

4. Whether the prosecution must prove that the appellants possessed a usable amount of the drugs or quantities capable of producing a narcotic effect to sustain a conviction for promoting a dangerous drug in the third degree under HRS § 712-1243.

We have considered the other issues raised by the appellants and find them to be without merit.

The appellants first contend that there was no probable cause for their initial arrests. Absent probable cause, they argue, their warrantless arrests were unlawful and, therefore, it was error for the trial court to deny their motion to suppress the fruits of the searches that followed.

It is well established that an arrest without a warrant must be based on probable cause. State v. Barnes, 58 Haw. 333, 568 P.2d 1207 (1977); State v. Delmondo, 54 Haw. 552, 512 P.2d 551 (1973). In State v. Barnes, supra, we stated the test of probable cause as follows:

Probable cause exists when the facts and circumstances known to the officer, or of which he had reasonably trustworthy information, would warrant a man of reasonable caution to believe that the person arrested has committed or is committing an offense.

58 Haw. at 335, 568 P.2d at 1209-1210.

Beginning with the case of John Vance, Officer Bernard initially arrested the appellant on a charge of assault in the third degree, a misdemeanor or petty misdemeanor offense. ¹ In House v. Ane, 56 Haw. 383, 538 P.2d 320 (1975), we held that a misdemeanor arrest by a police officer without a warrant is lawful if the officer has probable cause to believe an offense is being committed in his presence. See also Kimball v. Sadaoka, 56 Haw. 675, 678 n. 3, 548 P.2d 268, 271 n. 3 (1976). The requisite probable cause must be based on the officer's personal knowledge acquired at the time through his senses or inferences properly drawn from such knowledge. House v. Ane, supra.

The record below reveals that Officer Bernard, while standing a few feet away, witnessed John Vance turn and strike a fellow police officer unconscious. Having observed this conduct, Officer Bernard immediately arrested the appellant for assault. We therefore conclude that there was probable cause to believe that John Vance had committed the offense for which he was arrested and that the arrest was valid.

Similarly, we conclude that the record below supports the existence of probable cause to justify the initial arrest of Michael Vance. Officer Takiguchi testified that the appellant, while waiting to bail out his brother, pounded on the counter and yelled at the police saying, "F______ cops. You're going to get yours." He ignored repeated warnings by the police to keep quiet. After these warnings, his mother tried to calm him down but was unsuccessful. Michael continued shouting "F______ cops are punks. You just wait."

At the time, Michael was standing near a window where the police transact business with the public. Five or six other people were then outside the receiving desk. The disruptive conduct had continued for ten minutes before Officer Takiguchi finally arrested Michael for disorderly conduct. ²

The appellants contend that the police lacked probable cause to arrest Michael for disorderly conduct because the testimony presented failed to indicate that Michael's conduct created a risk of Physical inconvenience to members of the public or that his speech was "likely to provoke a violent response," essential elements of the offense charged. ³ See State v. Jendrusch, 58 Haw. 279, 567 P.2d 1242 (1977).

We note at the outset that the validity of Michael's arrest does not turn on whether the evidence in the record would sustain the charge of disorderly conduct. Actual guilt is not the test of probable cause for an arrest without a warrant. State v. Pokini, 45 Haw. 295, 312, 367 P.2d 499, 508 (1961).

More importantly, however, we find that the initial arrest of...