Territory Hawai`i v. Koon

• Court: Hawaii Supreme Court
• Writing for the Court: ROBERTSON
• Citation: Territory v. Koon, 22 Haw. 597 (Haw. 1915)
• Decision Date: 16 June 1915
• Parties: TERRITORY OF HAWAII v. HOO KOON.

22 Haw. 597

TERRITORY OF HAWAII

v.HOO KOON.

Supreme Court of the Territory of Hawai‘i.

Argued May 28, 1915.

Decided June 16, 1915.

RESERVED QUESTION FROM CIRCUIT COURT, FIRST CIRCUIT. HON. C. W. ASHFORD, JUDGE.

Syllabus by the Court

Under section 3726 R. L. 1915 the right of the police to arrest without a warrant is not limited to felonies, and under section 3731 R. L. 1915 the officer may, if he has reasonable cause to believe that an offense has been or is being committed, enter a house to arrest an offender.

Where the police, without a warrant, arrest a person for having opium unlawfully in his possession, they may search the person of the one so arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which such person is arrested.

Where a person is lawfully arrested in his room for having opium in his possession and the police, in making such arrest, without a search warrant search the room of the offender and seize certain opium and opium pipes found therein, the same should be treated as tools used for the perpetration or attempted perpetration of crime and may be held to be used in evidence (if otherwise admissible) to prove the charge on which such person is arrested; and such search and seizure is not in violation of the rights of the defendant under the Fourth Amendment to the Constitution of the United States.J. W. Cathcart, City and County Attorney ( W. B. Lymer, Deputy City and County Attorney, with him on the brief), for the Territory.

R. W. Breckons for defendant.

ROBERTSON, C.J., WATSON AND QUARLES, JJ.

OPINION OF THE COURT BY WATSON, J.

The petitioner in this proceeding, hereinafter designated the defendant, was on October 21, 1914, convicted and sentenced by the district magistrate of Honolulu on a charge of unlawfully having in his possession certain opium contrary to the provisions of Act 144 S. L. 1913 (Sec. 2075 R. L. 1915). That section provides as follows:

“Any person who shall use or smoke opium or have the same in his possession, except as provided in sections 2072 and 2074, shall be guilty of a misdemeanor and shall be punished by a fine of not less than fifty dollars or more than one hundred dollars, or by imprisonment not more than six months.” (Sec. 2075.)

The defendant appealed to the circuit court and before the time for trial in that court filed the following petition:

“Now comes the above named defendant and states that he is a resident of Honolulu, City and County of Honolulu, Territory of Hawaii, and that he resides in and occupies a home on Hotel Street near Maunakea Street, in said City.

That on or about the 18th day of October, A. D. 1914, certain officers of the Police Department of the City and County of Honolulu, unlawfully and without warrant or authority so to do, and against the will and consent of the petitioner herein, entered his room and dwelling place and seized certain shells and their contents, which said contents are alleged to be opium, and certain other articles alleged to be opium pipes, contained in said room and dwelling place; in violation of Articles 4 and 5 of the Amendment to the Constitution of the United States.

That John W. Cathcart, City and County Attorney of the City and County of Honolulu, Territory of Hawaii, Arthur McDuffie, Captain of Detectives of the City and County of Honolulu, Territory of Hawaii, and Charles H. Rose, Sheriff of the City and County of Honolulu, Territory of Hawaii, took the above described property so seized into their possession, and have failed and refused to return the same to this petitioner.

That heretofore and on, to-wit, the 24th day of February, A. D. 1915, demand was made upon the said John W. Cathcart, Arthur McDuffie and Charles H. Rose to return to petitioner herein the said personal property so unlawfully seized, but to return the same or any portion thereof, the said John W. Cathcart, Arthur McDuffie and Charles H. Rose refused and still refuse, all of which appears by the Demand, a copy of which is hereto attached and made part hereof.

That said property is being unlawfully and improperly held by said Sheriff, City and County Attorney, and Captain of Detectives, in violation of petitioner's rights under the Constitution of the United States.

That said City and County Attorney purposes to use the said personal property so taken from the petitioner as aforesaid at the trial of the above entitled cause, and that by reason thereof and of the facts above set forth, petitioner's rights under the amendments to the Constitution of the United States aforesaid have been and will be violated unless the Court orders the return prayed for.

Wherefore, petitioner prays that the said Sheriff, the said City and County Attorney, and the said Arthur McDuffie, Captain of Detectives, may be ordered and directed to return and deliver the said personal effects and property to petitioner herein.”

At the hearing on this petition (February 24, 1915) the city and county attorney, on behalf of the Territory of Hawaii, interposed an oral demurrer to the sufficiency of said petition and the trial court reserved to the supreme court the question: “Should the demurrer to the petition be sustained.”

The undisputed facts in this case are that on the 18th day of October, 1914, certain members of the police force of the city and county of Honolulu, Territory of Hawaii, entered the room of the defendant in Honolulu and took defendant into custody, at the same time taking from a table and from the drawer of a stand in said room certain shells and their contents, alleged to be opium, and certain pipes, alleged to be opium pipes, and having conducted defendant to the police station duly entered a charge against him for violating the provisions of Act 144 S. L. 1913 (Sec. 2075 R. L. 1915), by unlawfully having in his possession certain opium. Defendant was arrested without a warrant and the police officers did not have a search warrant. Defendant appeared in the police court on October 19, 1914, when the above charge was entered against him. On October 21 defendant was tried for said offense by the district magistrate of Honolulu and upon such trial was convicted and sentenced to pay a fine of $50, costs being remitted.

Preliminarily it is contended by counsel for the Territory that the application for a return of the articles demanded is not seasonably made and that defendant has waived his right to such return (if any such right existed) by submitting to a trial in the district magistrate's court and permitting said articles to be introduced in evidence against him without objection. Assuming that these facts are properly before us, i. e., that the defendant did submit to a trial before the district magistrate and permit said articles to be introduced in evidence against him, without objection, although such facts do not appear from the petition, to a consideration of the allegations of which counsel for defendant claims we are limited, we are, nevertheless, of the opinion that the contention advanced by counsel for the Territory, that the application for the return of the articles demanded is not seasonably made, is without merit. On a general appeal to the circuit court from a judgment rendered by the district magistrate the case comes up de novo (Jardin v. Madeiros, 9 Haw. 503;Territory v. Marshall, 13 Haw. 85), and the fact that the defendant, before the district magistrate, may have permitted certain evidence to be received against him, without objection (if such be the fact), would in no wise prevent him from objecting to the admission of such evidence or raising a constitutional question as to its competency in the circuit court upon appeal. Counsel for petitioner cites and relies upon the case of Weeks v. United States, 232 U. S. 383. That case involved “the validity under the Fourth Amendment of a verdict and sentence and the extent to which the private papers of the accused, taken without a search warrant, can be used against him” (p. 384), and it was there held, quoting from the syllabus: “The federal courts cannot, as against a seasonable application for their return, in a criminal prosecution, retain for the purposes of evidence against the accused his letters and correspondence seized in his house during...