State v. Vinuya

• Decision Date: 29 August 2001
• Docket Number: No. 23223.,23223.
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Kuhio B. VINUYA, Defendant-Appellant.
• Court: Hawaii Court of Appeals

32 P.3d 116

96 Haw. 472

STATE of Hawaii, Plaintiff-Appellee, v. Kuhio B. VINUYA, Defendant-Appellant.

No. 23223.

Intermediate Court of Appeals of Hawai`i.

August 29, 2001.

Alan G. Warner, on the briefs, for defendant-appellant.

Richard K. Minatoya, Deputy Prosecuting Attorney, on the briefs, for plaintiff-appellee.

BURNS, C.J., WATANABE and LIM, JJ.

Opinion of the Court by LIM, J.

Defendant-Appellant Kuhio B. Vinuya (Vinuya) appeals the March 1, 2000 judgment of the circuit court of the second circuit, the Honorable Artemio C. Baxa, judge presiding, that convicted him of the offenses of (count one) assault in the second degree, in violation of Hawaii Revised Statutes (HRS) § 707-711(1)(d) (1993); (count two) carrying or use of a firearm in the commission of a separate felony, in violation of HRS § 134-6(a) (1993 & Supp.2000); (count three) place to keep firearm, in violation of HRS § 134-6(c) (1993 & Supp.2000); (count four) prohibited possession of a firearm, in violation of HRS § 134-7(b) (1993 & Supp.2000); and (count five) possession of a prohibited firearm, in violation of HRS § 134-8 (1993).

The court sentenced Vinuya to an extended indeterminate term of imprisonment of ten years on count one, a twenty-year indeterminate term of imprisonment with a mandatory minimum term of six years and eight months on count two, a ten-year indeterminate term of imprisonment on each of counts three and four, and a five-year indeterminate term of imprisonment on count five. The court ran the prison terms on counts one and two consecutively, but concurrently with the other prison terms, for a maximum term of imprisonment of thirty years.

On appeal, Vinuya asserts that because the court erroneously denied his motion to suppress evidence—a sawed-off shotgun—recovered by the police during a warrantless search of his bedroom in his parents' house, his convictions on all five counts must be reversed.

Because we conclude that neither consent nor exigent circumstances justified the warrantless entry and search of Vinuya's bedroom, we agree with Vinuya that the sawed-off shotgun should have been suppressed. We therefore reverse in part, and vacate and remand in part.

I. Background.

On the evening of July 8, 1999, the twenty-three-year-old Vinuya, along with Charles Barut (Barut) and Gloria Cortez (Gloria) and her sister, were riding around Kahului in Barut's car. At around 10:00 p.m., Barut pulled into the driveway at 573 Kaimana Street looking for his friend, Keola Reyes (Keola). Keola was asleep, but his younger brother Kaiana Reyes (Kaiana) joined Barut, Vinuya and the sisters in the driveway. Shortly after arriving at the Reyes house, Vinuya and Barut argued, and Barut told Vinuya to go home. Vinuya got out of Barut's car and walked across the street and two doors down to his home at 586 Kaimana Street. Vinuya left the car at about 10:30 p.m.

A short time later, Kaiana's mother drove up, so Barut reversed his car out of her driveway and parked it in front of 579 Kaimana Street. Kaiana followed and continued to talk with Barut through the passenger-side window of Barut's car.

About five minutes after Vinuya's departure, Barut heard a "big boom, like one shotgun." Then, Kaiana heard what sounded like rocks hitting Barut's car. Barut jumped out, and saw Vinuya standing behind his car. At trial, Barut testified that Vinuya appeared just as perplexed about the explosion as he was. Gloria testified, however, that after Barut got out of the car, she heard Vinuya and Barut arguing behind the car.

While Vinuya and Barut argued, a second blast occurred. Gloria then heard Barut ask Vinuya, "What you doing, crazy? What?" She also heard a woman's voice, coming from the direction of Vinuya's house, telling him to "get over here now." After the second blast, Barut got back into his car and drove off.

Kaiana's uncle, Eugene Caballero, Sr. (Caballero) testified that he approached Barut's car after the second blast and noticed that "[Vinuya] was enraged." He also saw Vinuya "put something, lift up his shirt and put something in his shorts, and all I could see was a nickel finished object. Shiny object." When asked whether he could tell what the object was, Caballero responded, "Ah, from my standpoint, no."

Kaiana thought the first "big boom" was a pipe bomb exploding. Upon hearing the explosion, Kaiana ran to his mother's car for cover, but not before being hit in his hip. The police later determined that Kaiana had been hit by bird shot fired from a shotgun.

The first police arrived at Kaimana Street at approximately 10:40 p.m. Within minutes of their arrival, they had closed a large portion of Kaimana Street, including the portion upon which the Reyes and Vinuya houses are located. During their investigation, the police recovered, among other things, an expended shotgun shot shell casing that was lying on the roadway in front of 579 Kaimana Street. They also determined that the shooter was either Vinuya or Barut and that Vinuya had reentered his house shortly after the shootings.

Believing that Vinuya was still in his house, the police secured the residence at 586 Kaimana Street. Specifically, they sought to evacuate all inhabitants from the house, and then they posted officers "at every corner of the house and the surrounding areas to prevent anybody entering or exiting the residence." The only person who responded to the police request to leave the house was Vinuya's mother, Mrs. Cora Sardinha (Mrs. Sardinha). Mrs. Sardinha told the police that she was alone in the house. However, a police officer reported that he saw someone in the house after Mrs. Sardinha had been evacuated. Thus, the police believed that Vinuya had barricaded himself inside the house. Based on this belief, police negotiators attempted to contact Vinuya by calling to him with a bullhorn. They received no response to these efforts.

At approximately 1:00 a.m. on July 9, 1999, the special response team (SRT) of the Maui Police Department arrived on the scene. The purpose of this seventeen-member SRT was to enter the house and search for suspects.

Two hours later, the primary investigator on the case, Detective Michael Kahoohanohano (Detective Kahoohanohano), arrived at the scene. Detective Kahoohanohano met with Mrs. Sardinha, who told him that she and her husband owned the house. Detective Kahoohanohano testified at the suppression hearing that Mrs. Sardinha "told me voluntarily several times [to] go ahead and search the house. Nobody's there." He also testified that he did not coerce Mrs. Sardinha into giving her consent.

On July 9, 1999, at 5:17 a.m., the SRT entered 586 Kaimana Street to search for Vinuya. Although the house had been secured for nearly five-and-a-half hours, the police did not have, nor did they seek to obtain, a search warrant. At the October 8, 1999 suppression hearing, Detective Kahoohanohano testified that, "I believe we could have obtained a search warrant." Also, there is nothing in the record to indicate that such a request would have been inconvenient. Rather, the SRT apparently based its entry upon Mrs. Sardinha's consent.¹

During his search of the house, Officer Mervyn Ching (Officer Ching) came upon, and forced open, the locked door to Vinuya's bedroom. At trial, Mrs. Sardinha testified that Vinuya kept his door locked "[a]ll the time[,]" even when he left his room just to shower. She further testified that Vinuya had the only key to his bedroom door, and that neither she nor other family members were allowed to enter the bedroom.

Officer Ching did not find Vinuya in the bedroom; he did see, however, a sawed-off shotgun lying on a shelf in the bedroom's open closet. The officer did not recover the gun. Instead, he reported his observation to his supervisor, who then informed Detective Kahoohanohano of the finding.

During the SRT entry and search of the house, Detective Kahoohanohano had remained on the perimeter of the area on Kaimana Street cordoned off by the police. Upon being informed of the presence of a sawed-off shotgun, he left the perimeter area, entered the house and recovered the gun from Vinuya's room.

Vinuya was arrested a few days later. On July 23, 1999, he was charged by complaint with attempted murder in the first degree, carrying or use of a firearm in the commission of a separate felony, place to keep firearm, prohibited possession of a firearm, and possession of a prohibited firearm.

On August 27, 1999, Vinuya moved to suppress, inter alia, the sawed-off shotgun. Vinuya argued that the search of his bedroom violated his rights under the Fourth Amendment to the United States Constitution, and article I, section 7 of the Hawaii Constitution. He contended that the warrantless search was illegal for want of an applicable exception to the warrant requirement. Vinuya claimed that no exigent circumstances excused the police from obtaining a warrant before entering the house, and that they entered the premises without valid consent.

On October 8, 1999, the circuit court entertained argument on Vinuya's motion to suppress. Vinuya argued:

So you have complete failure on proving consent. You have undisputed position that his bedroom was locked. It was his bedroom and no apparent authority to grant or the ability to consent to search his private area. There's no indication [Mrs. Sardinha] had a key or that she had any access to that premises.

The evidence is also undisputed that [the police] had held the property for approximately five and a half hours before they decided to enter. There's no evidence as to the justification for entering. Certainly time enough to get a warrant if they wanted one.

In counterpoint, the State argued that Mrs. Sardinha's consent was sufficient:

Miss Sardinha indicated that she was the owner of the house; that [Vinuya] was her son; that she owned the house with her husband; that she also had renters in the back.

She gave consent to [D]etective Kahoohanohano. If the

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