State v. McKnight.

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Electronically Filed
Supreme Court
SCWC-28901
31-DEC-2013
09:43 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---
________________________________________________________________

STATE OF HAWAI#I,
Respondent/Plaintiff-Appellee-Cross-Appellant,

vs.

ROBERT J. MCKNIGHT, JR.,
Petitioner/Defendant-Appellant-Cross-Appellee.
________________________________________________________________

SCWC-28901

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NOS. 28431 & 28901; CR. NO. 06-1-0352(1))

December 31, 2013

RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND McKENNA, JJ., AND
CIRCUIT JUDGE TRADER, IN PLACE OF DUFFY, J., RECUSED

OPINIONS OF THE COURT

INTRODUCTION
(By: McKenna, J., with whom Recktenwald, C.J., Nakayama, and
Acoba, JJ., and Circuit Judge Trader join)

On July 24, 2006, Robert J. McKnight, Jr. (“McKnight”)

was charged via indictment with Count 1, Electronic Enticement of

a Child in the First Degree, in violation of Hawai#i Revised

Statutes (“HRS”) § 707-756 (“Electronic Enticement”), and Count

2, Promoting Child Abuse in the Third Degree, in violation of HRS
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§ 707-752(1)(a). The charges were severed, and the State of

Hawai#i (“State”) proceeded to trial on Count 1. After a jury

trial in the Circuit Court of the Second Circuit (“circuit

court”),1 McKnight was convicted of Electronic Enticement.

McKnight appealed his conviction for Electronic

Enticement, and the State cross-appealed the suppression of

certain evidence, including a statement made by McKnight after he

was arrested and evidence seized from his residence pursuant to a

misdated search warrant. Some of this evidence pertained to the

untried charge of Promoting Child Abuse in the Third Degree. The

Intermediate Court of Appeals (“ICA”) affirmed McKnight’s

conviction and vacated the circuit court’s suppression order.

McKnight raises three questions on certiorari, printed

in the order addressed:
[1]. Did the ICA gravely err by disregarding the plain and
unambiguous language of a criminal statute and holding that
proof that the defendant used a computer or other electronic
device was not part of each element of the offense?

2. Did the ICA gravely err in holding that Mr. McKnight
waived his right to counsel after he asserted his
constitutional and statutory rights and the police made no
effort to find a lawyer, denied his right to contact his
mother, and wanted to question him further?

[3]. Did the ICA gravely err when it created a new exception
to Hawai#i’s exclusionary rule by holding that the use of
evidence seized pursuant to an invalid warrant does not
violate the right to be free from unreasonable searches,
seizures, and invasions of privacy guaranteed by the Hawai#i
Constitution?

1
The Honorable Joel E. August presided.

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Pursuant to the analysis below, we affirm in part and

vacate in part the ICA’s Judgment on Appeal, and remand this case

for further proceedings consistent with this opinion.

A. Factual Background

The charges against McKnight stemmed from an undercover

investigation conducted by the Department of the Attorney

General. During the investigation, McKnight began communicating

via internet chat with “Chyla Bautista” (“‘Chyla’”), a persona

created by Special Agent Vincente Domingo (“Agent Domingo”) of

the Hawai#i Internet Crimes against Children Task Force. “Chyla”

identified herself as a fifteen-year-old girl on O#ahu. Over the

course of a month, McKnight communicated with “Chyla” via Yahoo!!

Messenger (“Yahoo”), email, cellular telephone, and home

telephone. During these conversations, McKnight discussed

meeting with “Chyla” and performing sexual acts with her. He

also emailed “Chyla” photographs of himself and displayed himself

to “Chyla” masturbating via webcam.

On July 5, 2006, McKnight communicated with “Chyla” via

Yahoo to discuss meeting her in person. McKnight purchased an

electronic airline ticket and arranged to fly “Chyla” from

Honolulu to Maui the following day. He provided “Chyla” with the

flight information, told her that he would pick her up from the

airport, and gave her a description of his car. On July 6, 2006,

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the Maui Police Department and the Hawai#i Attorney General’s

Office observed McKnight’s car entering Kahului Airport at the

scheduled arrival time and placed McKnight under arrest for

electronic enticement of a child.

At the Wailuku Police Station, Agent Domingo advised

McKnight of his Miranda rights and asked him to complete a

constitutional rights form (AG Form CR-1). McKnight stated that

he wanted an attorney and initialled “Yes” next to a question

that read “Do you want an attorney now?” Agent Domingo ceased

the interview and left the room to confer with Agent Woletta Kim

(“Agent Kim”) regarding whether he could ask McKnight for a

description of his residence. The agents, who intended to obtain

a search warrant for the residence, concluded that such

questioning was permissible because it did not involve

interrogating McKnight about the case. Agent Domingo returned to

the interview room minutes later with the intention of further

questioning McKnight.

When Agent Domingo re-entered the room, McKnight asked

to call his mother, but Agent Domingo denied the request.2

McKnight asked what was going to happen next, and Agent Domingo

2
Upon further questioning, Agent Domingo acknowledged that McKnight
could have requested an attorney or asked his mother to hire an attorney;
however, he did not know McKnight’s reasons for wanting to call his mother,
and he was concerned that McKnight would ask his mother to dispose of evidence
before agents could obtain a search warrant.

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responded, “[W]e are going to do a search warrant on [your]

residence.”3 At that point, McKnight stated that he had changed

his mind about giving a statement because he had not realized the

severity of the crime.

As Agent Domingo began tape-recording their dialogue,

however, McKnight again asked if he could call his mother. Agent

Domingo responded that he could not promise anything, and it was

entirely McKnight’s decision whether he wanted to give a

statement. The transcript reveals the following exchange:
R OBERT J. M C K NIGHT , J R .: . . . . Now, will – after this is
done, will you allow me to call my mother?
S PECIAL A GENT D OMINGO : Again, I’m not going to promise you
anything. [] If you want to give a statement or not, that’s
strictly up to you. . . . I can’t promise you anything.
There’s no promises or guarantees, okay, at this stage.
R OBERT J. M C K NIGHT , J R .: Okay.
S PECIAL A GENT D OMINGO : Do you still want to talk to me?
R OBERT J. M C K NIGHT , J R .: Not unless I go let my mother know.
S PECIAL A GENT D OMINGO : Again, I can’t promise you anything. . .
. I can’t say, okay, I will –- I will let you do this if you
give me a statement. . . . There’s no promises, no
guarantees. If you want to give me a statement -- like you
told me that, you know, you changed your mind because you
didn’t realize the severity of the crime, then fine. But,
again, I can’t promise you anything. You have got to tell
me what you want to do, Robert.
R OBERT J. M C K NIGHT , J R .: Go ahead.
. . . .
S PECIAL A GENT D OMINGO : Go ahead what?
R OBERT J. M C K NIGHT , J R .: Continue.

(Emphasis added).

When McKnight agreed to continue, Agent Domingo

presented him with a second constitutional rights form, on which

3
Agent Domingo admitted that a search warrant had not yet been
prepared but their intention was to apply for one.

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McKnight indicated that he did not want an attorney and that he

wanted to give a statement. After McKnight completed this form,

Agent Domingo proceeded to question McKnight about his

conversations with “Chyla” and his intention to meet with her.

That afternoon, Agent Domingo prepared a search warrant

for McKnight’s residence and vehicle. He presented the warrant

application and his affidavit to Judge Simone Polak of the

District Court of the Second Circuit. After finding probable

cause, Judge Polak signed the warrant, which authorized agents to

search McKnight’s residence and vehicle for evidence of

Electronic Enticement, and to seize computers and electronic

storage media (e.g., hard drives, modems, digital files,

electronically stored records, computer programs, and

photographic equipment). The warrant stated: “This warrant may

be served and the search made on or before July 16, 2006, a date

not to exceed ten (10) days from the issuance of this search

warrant[.]” In a clerical error, however, Judge Polak misdated

the warrant as having been signed by her on June 6, 2006.4

Agents executed the search warrant that same day at

McKnight’s residence and seized, among other things, two computer

4
The June 6, 2006 date in the jurat was handwritten by Judge Polak
upon issuing the warrant, while the July 16, 2006 date in the final paragraph
had been typed by Agent Domingo when he prepared the search warrant
application.

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hard drives, thirty-five floppy disks, and twenty-two DVDs.

Subsequent imaging of the hard drives revealed approximately one

hundred and fifty-five electronic images and two movies of

suspected child pornography, archived files of conversations

between McKnight and “Chyla,” and graphic files of McKnight

displaying his genitals.

B. The Charge and Trial

The Circuit Court of the Second Circuit granted

McKnight’s pretrial motions to suppress the statement he gave

after invoking his right to counsel and evidence seized pursuant

to the misdated search warrant (“Suppression Order”).5 After its

motion to sever the charges was granted, the State proceeded to

trial on Count 1, Electronic Enticement in the First Degree, and

appealed the court’s Suppression Order as it related to Count 2,

Promoting Child Abuse in the Third Degree.

5
On October 25, 2006, McKnight Filed a Motion to Suppress Statement
as Involuntary, on the ground that Agent Domingo had violated his right to
counsel, and a Motion to Suppress Evidence Seized Pursuant to Invalid Warrant,
on the ground that the warrant was not supported by probable cause. The State
filed memoranda in opposition to both motions; and the court conducted an
evidentiary hearing on December 8, 2006. After this hearing, McKnight alerted
the court to the error in the date on the search warrant and filed a
Supplemental Memorandum in Support of his Motion to Suppress Evidence. The
State filed a Memorandum in Opposition to Defendant’s Supplemental Memorandum,
arguing that the issuance date was merely a clerical error and that the
warrant should be upheld under the good faith exception. On February 1, 2007,
the circuit court issued its Findings of Fact, Conclusions of Law and Order
Granting Defendant’s Motion to Suppress Statement as Involuntary and Granting
Defendant’s Motion to Suppress Evidence Seized Pursuant to Invalid Warrant.
With respect to the warrant issue, the circuit court stated that there was
probable cause for the search warrant, but suppressed the evidence seized
because of the misdating of the warrant pursuant to the ICA’s holding in State
v. Endo, 83 Hawai#i 87, 924 P.2d 581 (App. 1996), discussed infra.

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At the conclusion of the trial on the Electronic

Enticement charge, the court gave the following jury instruction,

over McKnight’s objections:6
In the indictment, Defendant Robert McKnight is
charged with the offense of electronic enticement of a child
in the first degree.

A person commits the offense of Electronic Enticement
of a Child in the First Degree if he intentionally or
knowingly uses a computer or any other electronic device to
intentionally or knowingly communicate with another person,
who represents that person to be under the age of eighteen
years, with the intent to promote or facilitate the
commission of Sexual Assault in the First Degree or Sexual
Assault in the Third Degree, and intentionally or knowingly
agrees to meet with another person who represents that
person to be a minor under the age of eighteen years, and
intentionally or knowingly travels to an agreed upon meeting
place at an agreed upon meeting time.

There are five material elements of the offense of
Electronic Enticement of a Child in the First Degree, each
of which the prosecution must prove beyond a reasonable
doubt.

These five elements are:

1. That on or about the 13th day of June 2006, to
and including the 6th day of July, 2006, in the County
of Maui, State of Hawaii, Defendant[] intentionally or
knowingly used a computer or other electronic device;
and

2. That the Defendant intentionally or knowingly
used a computer or other electronic device to
communicate with another person, who represented that
person to be under the age of eighteen years; and

3. That Defendant communicated with the other
person with the intent to promote or facilitate the
commission of Sexual Assault in the First Degree or

6
McKnight objected on the grounds that the jury should not be
instructed as to Sexual Assault in the Third Degree, and that the State must
prove beyond a reasonable doubt that the character “Chyla” was below the age
of 16. He did not argue, however, that Electronic Enticement required the
State to prove that he used a computer or electronic device to agree to meet
with “Chyla” and to travel to the agreed-upon meeting place at the agreed-upon
time; in addition, his own proposed jury instruction did not extend this
computer-use requirement to the three conduct elements of the offense.

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with the intent to promote or facilitate the
commission of Sexual Assault in the Third Degree; and
4. That the Defendant intentionally and knowingly
agreed to meet with another person who represented
that person to be under the age of eighteen years; and

5. That the Defendant intentionally or knowingly
traveled to an agreed upon meeting place at an agreed
upon meeting time.

A person commits the felony offense of Sexual Assault
in the First Degree if he knowingly engages in sexual
penetration with a minor who is at least fourteen years old
but less than sixteen years old and the person is not less
than five years older than the minor and the person is not
legally married to the minor. . . .

A person commits the felony offense of Sexual Assault
in the Third Degree if he knowingly engages in sexual
contact with a minor who is at least fourteen years old but
less than sixteen years old or causes a minor who is at
least fourteen years old but less than sixteen years old to
have sexual contact with him, and the person is not less
than five years older than the minor, and the person is not
legally married to the minor. . . .

(Emphasis added.)

A jury found McKnight guilty as charged of Electronic

Enticement. The circuit court entered its judgment of conviction

and sentence of probation on November 14, 2007 (“Judgment”).

McKnight appealed this Judgment.

C. Appeals to the ICA

1. McKnight’s Appeal from the Judgment

On appeal, McKnight argued for the first time that the

circuit court plainly erred in failing to instruct the jury that

the State was required to prove that he used a computer or

electronic device to accomplish each of the three elements of

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Electronic Enticement, including agreeing to meet with “Chyla”

and traveling to Kahului airport.7

The State argued, inter alia, that McKnight’s

interpretation of the statute would be contrary to legislative

intent and lead to an absurd result because it was not possible

to travel via a computer and anyone who traveled to a meeting via

car, airplane, or foot would be immune from prosecution. The

State did not explain how imposing a computer-use requirement on

the agreement to meet would render the statute absurd.

In response, McKnight contended that the plain language

of the statute required the use of a computer or electronic

device as to every element, and that this interpretation was not

absurd because the State could have convicted him if he had used

a computer to purchase an airline ticket to travel to O#ahu to

meet with “Chyla.”

2. State’s Appeal from the Suppression Order

In its appeal from the Suppression Order, the State

argued that the court erred in suppressing McKnight’s statement

because McKnight had initiated communication with Agent Domingo,

7
McKnight also argued on appeal that the circuit court abused its
discretion in permitting the jury to view scenes of him masturbating for
“Chyla” via web cam, and that there was insufficient evidence to support his
conviction because the State failed to prove that he used a computer or other
electronic device to travel to the airport to meet “Chyla.” The ICA held that
the court did not abuse its discretion in allowing the jury to view the
videos, and McKnight’s claim regarding insufficiency of the evidence was
without merit. McKnight did not challenge these portions of the ICA’s Opinion
on certiorari and, therefore, we do not address them in our decision.

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and had voluntarily and knowingly waived his Miranda rights

before being questioned. In addition, it maintained that Agent

Domingo’s failure to make any efforts to contact an attorney and

his denial of McKnight’s requests to contact his mother did not

amount to a violation of McKnight’s constitutional or statutory

rights. The State also argued that the court erred in

suppressing evidence seized pursuant to the misdated search

warrant because the error had been committed by the issuing judge

rather than law enforcement agents, McKnight was not prejudiced

where the search was otherwise supported by probable cause, the

public’s interest in obtaining evidence of crimes against

children outweighed the marginal benefits of suppressing such

evidence, and a narrow application of the good faith exception

was warranted under such circumstances.

McKnight, on the other hand, argued that his statement

was not voluntarily given because he had unequivocally invoked

his right to counsel, his inquiry as to what was going to happen

next did not evidence a desire to reinitiate a discussion

regarding the investigation, and Agent Domingo’s statement about

executing a search warrant was reasonably likely to elicit an

incriminating response. McKnight also argued that the error in

the issuance date of the search warrant rendered it invalid, and

execution of the warrant constituted an invasion of his right to

privacy.

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3. The ICA’s Opinion

In a published opinion, the Intermediate Court of

Appeals (“ICA”) affirmed McKnight’s conviction under HRS § 707-

756, vacated the circuit court’s Suppression Order, and remanded

the case for further proceedings.8

With respect to McKnight’s appeal, the ICA concluded

that the circuit court did not plainly err in failing to instruct

the jury that HRS § 707-756 required the State to prove that

McKnight used a computer or other electronic device to agree to

meet “Chyla” or to travel to the agreed-upon meeting place at the

agreed-upon time. It concluded that construing the statute

otherwise would lead to illogical and inconsistent results by

limiting application of the statute to atypical situations.

With respect to the State’s appeal, the ICA overruled

its prior decision in State v. Endo, 83 Hawai#i 87, 924 P.2d 581

(App. 1996),9 and concluded that a clerical error in the issuance

date of the search warrant did not require suppression of

evidence seized pursuant thereto because suppressing the evidence

8
The ICA consolidated McKnight’s appeal from the Judgment and the
State’s appeal from the Suppression Order under ICA No. 28901.
9
In Endo, a police officer erroneously typed the date of April 14,
1992 on a search warrant he presented to a judge for signature on May 14,
1992. 83 Hawai#i at 88-89, 924 P.2d at 582-83. The ICA held that misdating
the warrant rendered it invalid, noting, inter alia, that Hawai#i Rules of
Penal Procedure Rule 41(c) required the search warrant to “command the officer
to search within a specified period of time not to exceed ten (10) days[,]”
and that the warrant commanded the officer to search “for a period not to
exceed ten (10) days from its issuance.” Id. at 92-94, 924 P.2d at 586-88.

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under such circumstances would neither deter governmental

misconduct or protect citizens’ privacy rights in such

circumstances. In addition, the ICA concluded that McKnight’s

custodial statement to Agent Domingo should not have been

suppressed because, although McKnight had earlier invoked his

right to counsel, he then reinitiated communication with agents

and voluntarily waived his Miranda rights.

PART I: HRS § 707-756 DOES NOT REQUIRE THE STATE TO PROVE THAT
MCKNIGHT USED A COMPUTER OR ELECTRONIC DEVICE TO TRAVEL TO THE
AGREED-UPON MEETING PLACE OR TO AGREE TO MEET WITH “CHYLA”
(By: McKenna, J., with whom Nakayama and Acoba, JJ., join)

We construe the Electronic Enticement statute pursuant

to established principles of statutory construction, and hold

that the State was not required to prove that McKnight used a

computer or other electronic device either (1) to travel to the

agreed-upon meeting place at the agreed-upon time, or (2) to

agree to meet with a person representing him- or herself to be

under the age of eighteen years. We therefore affirm McKnight’s

conviction for Electronic Enticement under HRS § 707-756.

At the time pertinent to this case, HRS § 707-756

(Supp. 2006) provided, in relevant part:
(1) Any person who, using a computer or any other electronic
device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under
the age of eighteen years;
(ii) With another person, in reckless disregard
of the risk that the other person is under the
age of eighteen years, and the other person is
under the age of eighteen years; or

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(iii) With another person who represents that
person to be under the age of eighteen years;
and
(b) With the intent to promote or facilitate the
commission of a felony:
(i) That is a murder in the first or second
degree;
(ii) That is a class A felony; or
(iii) That is an offense defined in section
846E-1;
Agrees to meet with the minor or with another person
who represents that person to be a minor under the age
of eighteen years; and
(c) Intentionally or knowingly travels to the agreed
upon meeting place at the agreed upon meeting time;
is guilty of electronic enticement of a child in the
first degree.

(Emphasis added).10

McKnight argues that a conviction for Electronic

Enticement requires the State to prove that he used a computer or

other electronic device not only to communicate with a person who

represents him- or herself to be under the age of eighteen years,

but also (1) to travel to the agreed-upon meeting place at the

agreed-upon meeting time, and (2) to agree to meet the minor,

with the intent to promote or facilitate the commission of a

felony under HRS § 846E-1. The State, on the other hand,

maintains that HRS § 707-756 cannot be interpreted to require the

use of a computer or electronic device to travel to a meeting

place, because such a construction would create an absurd result,

inconsistent with the legislature’s purpose.

10
The current version, HRS § 707-756 (Supp. 2012), contains the same
language except subsection (1)(b)(iii) has been amended to read: “That is
another covered offense as defined in section 846E-1.” In addition, the word
“and” between subsections (1)(a) and (1)(b) has been removed.

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“The interpretation of a statute is a question of law

reviewable de novo.” State v. Kotis, 91 Hawai#i 319, 327, 984

P.2d 78, 86 (1999) (citation, brackets, and ellipses omitted).

We view HRS § 707-756 as a whole and construe the statute in

accordance with the legislature’s overall purpose to give each

part a sensible and intelligent effect. State v. Davis, 63 Haw.

191, 196, 624 P.2d 376, 380 (1981). Based on the analysis below,

we conclude that: (1) requiring the use of a computer or other

electronic device to travel to the agreed-upon meeting place at

the agreed-upon time would render the statute absurd in meaning;

and (2) requiring the use of a computer or other electronic

device to agree to meet with the minor would render the statute

structurally incoherent as a whole. We hold that, with respect

to the computer-use requirement, the State was required to prove

that McKnight used a computer or electronic device only to

communicate with “Chyla”; therefore, the circuit court did not

plainly err by not instructing the jury that the State must prove

McKnight used a computer or electronic device to agree to meet

with “Chyla” and to travel to the agreed-upon meeting place at

the agreed-upon time.

A. Legislative History of HRS § 707-756

“When construing a statute, [this court’s] foremost

obligation is to ascertain and give effect to the intention of

the legislature, which is to be obtained primarily from the

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language contained in the statute itself.” Kotis, 91 Hawai#i at

327, 984 P.2d at 86 (citation omitted). In addition, “we must

read statutory language in the context of the entire statute and

construe it in a manner consistent with its purpose.” Id.

(citation omitted). In determining the purpose of a statute, the

court may look to the relevant legislative history to discern the

underlying policy, which the legislature sought to promulgate.

State v. Wells, 78 Hawai#i 373, 376, 894 P.2d 70, 73 (1995).
[W]e have rejected an approach to statutory construction
which limits us to the words of a statute, for when aid to
construction of the meaning of words, as used in the
statute, is available, there certainly can be no rule of law
which forbids its use, however clear the words may appear on
superficial examination. Thus, the plain language rule of
statutory construction does not preclude an examination of
sources other than the language of the statute itself even
when the language appears clear upon perfunctory review.
Were this not the case, a court may be unable to adequately
discern the underlying policy which the legislature seeks to
promulgate and, thus, would be unable to determine if a
literal construction would produce an absurd or unjust
result, inconsistent with the policies of the statute.

Keliipuleole v. Wilson, 85 Hawai#i 217, 221, 941 P.2d 300, 304

(1997) (citations, brackets, and ellipses omitted).

HRS §§ 707-756 and -757 were first introduced as House

Bill 2426 during the 2002 legislative session. The articulated

purpose of these statutes was “to deter crimes against minors by

. . . creating two new offenses of first and second degree

electronic enticement of a child, which prohibit the use of a

computer or other electronic device to lure a minor to a meeting

with intent to commit a felony[.]” H. Stand. Comm. Rep. No. 417,

in 2002 House Journal, at 1399 (emphasis added). Specifically,

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the legislature expressed a concern regarding the predatory use

of computers to target children, and it found that existing laws

failed to address the use of new technologies to entice children

into meetings for the purposes of committing crimes against them.

S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384.

It noted, however, that one method of investigation which had

proven successful for targeting such crimes was the use of sting

operations in which a police officer posed as a minor in chat

rooms or e-mail communications with the sex offender. Id.

The Senate Standing Committee explained,
Your Committee finds that the use of the Internet to entice
children into meetings has become widespread. Current laws
do not specifically address using computers to communicate
with minors for purposes of committing crime. This measure
would close that loophole, and would allow sex offenders to
be investigated and prosecuted before they commit a
kidnapping or other crime. One method of investigation that
has been successful in arresting sex offenders before a
child is hurt has been sting operations in which the sex
offender’s intended victim is actually a police officer
posing as a minor in chat rooms or E-mail communications.
Once the sex offender agrees to meet the child and goes to
the meeting place, the offender is arrested. However, the
sex offender’s defense to attempted sexual assault is often
the defense of impossibility because the person posing as a
child was not actually a child. Therefore, it is important
to criminalize the sex offender’s predatory computer
behavior, so that the offender can be prosecuted for what
the offender has actually done, as opposed to what the
offender might have been trying to do.

S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384

(emphasis added). Thus, the introduction of these bills enabled

the State to prosecute predatory computer behavior where an

individual engaged in online communications with a minor, agreed

to meet with that person, and physically traveled to the

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specified meeting place. Id. See also S. Stand. Comm. Rep. No.

3131, in 2002 Senate Journal, at 1498.

The statute that was ultimately enacted, HRS § 707-756,

contained three distinct conduct elements: (1) the initial

communication with the minor, (2) the agreement to meet with

intent to commit a felony, and (3) the act of physically

traveling to the agreed-upon place at the agreed-upon time.

Viewing the statute in light of the underlying policy which the

legislature sought to promulgate, it is apparent that each of

these elements served a distinct purpose: requiring that the

defendant utilize a computer or electronic device to communicate

with a minor addresses the legislature’s concern regarding the

use of new technologies to target children; requiring that the

agreement to meet be made with felonious intent ensures that the

defendant has a culpable state of mind at the time he entices the

child into meeting; and requiring that the defendant travel to an

agreed-upon meeting place at an agreed-upon meeting time ensures

that an individual is prosecuted only in situations where his

behavior poses an actual physical threat to the child.

B. Travel to an Agreed-Upon Meeting Place

McKnight argues that the circuit court erred in failing

to instruct the jury that the State was required to prove that he

used a computer or electronic device to travel to an agreed-upon

meeting place at an agreed-upon meeting time. We disagree and

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conclude, as the ICA did, that extending the computer-use

requirement to the act of traveling would be absurd.

Pursuant to established principles of statutory

construction, the court will depart from a literal reading of a

statute when the plain language results in an “absurd or unjust

result” and is “clearly inconsistent with the purposes and

policies of the statute.” State v. Park, 55 Haw. 610, 614, 525

P.2d 586, 589-90 (1974). See also Keliipuleole, 85 Hawai#i at

221-22, 941 P.2d at 304-05 (“[A] rational, sensible and practical

interpretation of a statute is preferred to one which is

unreasonable or impracticable, because the legislature is

presumed not to intend an absurd result, and legislation will be

construed to avoid, if possible, inconsistency, contradiction,

and illogicality.” (citations, internal quotation marks, and

brackets omitted)). Even where a statute appears unambiguous,

the court may deviate from a literal application of the language

in order to avoid absurdity and give effect to the legislature’s

intended purpose. State v. Ogata, 58 Haw. 514, 518, 572 P.2d

1222, 1225 (1977). See, e.g., State v. Stan’s Contracting, 111

Hawai#i 17, 27-28, 137 P.3d 331, 341-42 (2006) (holding that a

narrow interpretation of the word “fraud” in tolling statute

would lead to absurd and unjust results); State v. Haugen, 104

Hawai#i 71, 76-77, 85 P.3d 178, 183-84 (2004) (holding that,

although a statute regarding sentencing for first-time drug

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offenders was “plain, obvious, and unambiguous” in its terms,

construing the statute by its plain language would be

inconsistent with, contrary to, and illogical in light of the

legislature’s intent in enacting the statute).

Although HRS § 707-756 structurally appears to require

that a defendant use a computer or other electronic device to

travel to an agreed-upon meeting place at an agreed-upon time, a

literal reading of this paragraph is absurd. As the State

correctly points out, computers are not modes of transportation

that can be used to travel to a given location. In order to

avoid absurdity, as required by the rules of statutory

construction, we hold that the HRS § 707-756 does not require the

State to prove that the defendant used a computer or electronic

device to travel to the agreed-upon meeting place.

C. The Agreement to Meet

McKnight also argues that the circuit court erred in

failing to instruct the jury that the State was required to prove

that he used a computer or electronic device to agree to meet

with a person who represented herself to be under the age of

eighteen years.11 The ICA held that this interpretation of the

statute would result in the same absurdity as requiring the use

11
McKnight did not contend on appeal that there was insufficient
evidence to prove that he used a computer or electronic device to “agree[] to
meet” a person claiming to be a minor; and the State presented evidence that
the agreement to meet “Chyla” occurred via online chat.

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of a computer to travel to a meeting place. We disagree, because

it is conceivable to utilize a computer or other electronic

device (e.g., cellular phone or PDA) to agree to meet someone.

We conclude, however, that extending the computer-use requirement

to the agreement to meet is inconsistent with the overall

statutory structure of HRS § 707-756.

In construing each individual part of a statute, the

court must consider the statute as a whole to ensure that all

parts produce a harmonious and sensible whole.
It is fundamental in statutory construction that each part
or section of a statute should be construed in connection
with every other part or section so as to produce a
harmonious whole. Statutes should be interpreted according
to the intent and meaning, and not always according to the
letter, and every part thereof must be viewed in connection
with the whole so as to make all parts harmonize, if
practicable, and give a sensible and intelligent effect to
each.

Davis, 63 Haw. at 196, 624 P.2d at 380 (citation omitted).

At the time of McKnight’s conviction, HRS § 707-756

(Supp. 2006) provided, in relevant part:
(1) Any person who, using a computer or any other electronic
device:
(a) Intentionally or knowingly communicates:
. . .
(iii) With another person who represents that
person to be under the age of eighteen years;
and
(b) With the intent to promote or facilitate the
commission of a felony:
. . .
(iii) That is an offense defined in section
846E-1;
Agrees to meet . . . with another person who
represents that person to be a minor under the age of
eighteen years; and
(c) Intentionally or knowingly travels to the agreed
upon meeting place at the agreed upon meeting time;

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is guilty of electronic enticement of a child in the
first degree.

(Emphasis added).

Upon initial review, it appears the computer-use

requirement in subsection (1) applies to (a) the act of

communication, (b) the agreement to meet with intent to promote

or facilitate a felony, and (c) the act of traveling to the

agreed-upon meeting place at the agreed-upon meeting time. For

the reasons noted earlier, however, we have already concluded

that extending the computer-use requirement to (c) would be

absurd. Imposing the computer-use requirement on the first two

conduct elements but not the third renders the statute

inconsistent in terms of its structure. In order to construe the

statute as a harmonious whole, the computer-use requirement can

only logically apply to (a), the act of communicating with a

person who represents him- or herself to be under the age of

eighteen years, and not to (b) or (c).

If the legislature had intended to extend the computer-

use requirement to the agreement to meet, it could have

structured the second subsection more naturally to read, “(1) Any

person who, using a computer or any other electronic device: (a)

. . . communicates . . . ; and (b) Agrees to meet . . . with

another person who represents that person to be a minor under the

age of eighteen years, with the intent to promote or facilitate

the commission of a felony . . . .” To sensibly construe the

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statute as written, we apply the computer-use requirement only to

the act of communicating with the purported minor.12 We

therefore conclude that the circuit court did not err by not

instructing the jury that the State was required to prove that

McKnight used a computer or electronic device to agree to meet

with “Chyla.”

Accordingly, we affirm the ICA’s Judgment on Appeal to

the extent it affirmed McKnight’s conviction on Count 1 for

Electronic Enticement of a Child in the First Degree.

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

12
We believe this interpretation is also consistent with the
legislature’s subsequent decision to remove the word “and” between subsections
(1)(a) and (1)(b). See HRS § 707-756 (Supp. 2012).

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PART II: SUPPRESSION OF MCKNIGHT’S STATEMENT WAS PROPER WHERE
AGENTS FAILED TO OBTAIN A VOLUNTARY WAIVER OF HIS MIRANDA RIGHTS
(By: McKenna, J., with whom Recktenwald, C.J., Nakayama, and
Acoba, JJ., and Circuit Judge Trader join)

We hold that McKnight’s statement to Agent Domingo was

obtained in violation of his constitutional right against self-

incrimination, and that the circuit court properly suppressed

this statement at trial.13

McKnight argues that the circuit court properly

suppressed his statement to Agent Domingo because agents failed

to obtain a valid waiver of his Miranda rights, and that the ICA

erred in vacating the court’s suppression order. The State

contends that McKnight’s statement was voluntarily given after

McKnight initiated communication with Agent Domingo and waived

his right to counsel; in addition, it argues that Agent Domingo’s

failure to immediately contact an attorney, his intention to

further question McKnight, and his denial of McKnight’s statutory

right to call his mother did not detract from this voluntary

waiver of rights.

13
In addressing McKnight’s motion to suppress, the circuit court
found that Agent Domingo had also violated HRS §§ 803-9(2) and (4) by failing
to make reasonable efforts to contact an attorney and refusing to allow
McKnight to call his mother prior to questioning. It concluded that these
statutory violations did not warrant suppression of McKnight’s statement where
McKnight failed to show a causal connection between the violations and his
statement. The court concluded, however, that McKnight’s statement must be
suppressed because it was obtained in violation of his right to counsel.
As the ICA correctly noted, McKnight did not dispute the court’s
ruling that the statutory violations did not warrant suppression of his
statement. Accordingly, we do not find it necessary to address this issue.

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This court answers questions of constitutional law by

exercising its independent judgment based on the facts of the

case and reviewing such questions under the “right/wrong”

standard. State v. Jenkins, 93 Hawai#i 87, 100, 997 P.2d 13, 26

(2000). We review the trial court’s ruling on a motion to

suppress de novo “to determine whether the ruling was ‘right’ or

‘wrong.’” Id. (citation omitted). Where a defendant claims that

a custodial statement was obtained in violation of his right

against self-incrimination, this court reviews “the totality of

the circumstances surrounding [his] statement” and “make[s] an

independent determination of the ultimate issue of

voluntariness.” State v. Kelekolio, 74 Haw. 479, 502, 849 P.2d

58, 69 (1993) (citation omitted). We conclude, in view of the

totality of the circumstances, that McKnight did not reinitiate

communication with the agents and that his custodial statement

was obtained without a voluntary waiver of his Miranda rights.

A. The Right Against Self-Incrimination

Article I, section 10, of the Hawai#i Constitution and

the Fifth Amendment of the United States Constitution both

recognize the right against self-incrimination and require the

State to show that certain procedural safeguards are taken to

advise a criminal defendant of his constitutional rights before

custodial statements may be used against him as direct evidence

or impeachment evidence. State v. Ketchum, 97 Hawai#i 107, 116,

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34 P.3d 1006, 1015 (2001). Specifically, a defendant must be

advised of his right to remain silent, the fact that anything he

says may be used as evidence against him, his right to an

attorney, and the fact that an attorney will be appointed for him

if he cannot afford one. Miranda v. Arizona, 384 U.S. 436, 444-

45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); accord State v.

Nelson, 69 Haw. 461, 467-68, 748 P.2d 365, 369 (1987).

When a defendant makes an unequivocal request for

counsel during custodial interrogation, all questioning must

cease until counsel is present or until the defendant himself

reinitiates further conversation. Edwards v. Arizona, 451 U.S.

477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981) (“[A]n

accused, . . . , having expressed his desire to deal with the

police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.”).

B. Voluntary, Knowing, and Intelligent Waiver of Rights

Once a defendant invokes his right to counsel, the

police must cease all interrogation. See Ketchum, 97 Hawai#i at

119-21, 34 P.3d at 1018-20 (explaining that “interrogation”

includes any words or conduct “that the officer knows or

reasonably should know is likely to elicit an incriminating

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response”).14 In order to determine whether a statement

constitutes interrogation, the court must objectively assess the

totality of the circumstances, including “the conduct of the

police, the nature of the questions asked, and any other relevant

circumstances[,]” such that the ultimate question becomes

“whether the officer should have known that his or her words or

actions were reasonably likely to elicit an incriminating

response” from the defendant. Id. at 119, 34 P.3d at 1018

(citation, internal quotation marks, and brackets omitted). See

State v. Ikaika, 67 Haw. 563, 567, 698 P.2d 281, 284 (1995)

(holding that defendant’s inculpatory statements were not the

product of interrogation where a detective could not have known

his words would elicit an incriminating response).15

14
In Ketchum, officers executing a search warrant for drug
contraband detained the defendant in the master bedroom and asked him about
his residential address. 97 Hawai#i at 111-14, 34 P.3d at 1010-1013. The
officers knew that admissions regarding the defendant’s address would assist
in prosecuting him for constructive possession of any drug contraband found in
the residence. Id. at 112-15, 34 P.3d at 1011-14.
Given the circumstances, this court concluded that the defendant’s
admissions regarding his address were the product of custodial interrogation
in violation of his Miranda rights. Id. at 120-21, 34 P.3d at 1019-20. This
court held:
Accordingly, we reaffirm the principle that interrogation
consists of any express question—or, absent an express
question, any words or conduct—that the officer knows or
reasonably should know is likely to elicit an incriminating
response. The totality of the circumstances must be
considered to determine whether interrogation has occurred,
with a focus on the officer’s conduct, the nature of the
question (including whether the question is a routine
booking question), and any other relevant circumstance.
Id. at 121, 34 P.3d at 1020 (citations and internal quotation marks omitted).

15
In Ikaika, the defendant invoked his right to counsel when he was
detained for questioning as a witness in a murder. 67 Haw. at 564-65, 698
(continued...)

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A defendant may open the door to the possibility of

further questioning by initiating communication with the police

and voluntarily waiving his constitutional rights. Oregon v.

Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 2835, 77

L.Ed.2d 405 (1983) (holding that defendant’s inquiry as to what

was going to happen next “was not merely a necessary inquiry

arising out of the incidents of the custodial relationship[,]”

and instead, “evinced a willingness and a desire for a

generalized discussion about the investigation”).

Substantive questioning may continue only if the

defendant voluntarily, knowingly, and intelligently waives his

Miranda rights. State v. Hoey, 77 Hawai#i 17, 34-36, 881 P.2d

504, 521-23 (1994) (noting that the protection afforded by the

Hawai#i Constitution is broader than that recognized under the

U.S. Constitution). To determine whether a defendant has waived

his Miranda rights, the court must examine the entire record and

(...continued)
P.2d at 283. As he was waiting in the booking area, he approached an officer
with whom he was acquainted but who was not familiar with the facts of the
case or the charge against him. Id. The officer said “What’s happening?
Must be heavy stuff for two detectives to bring you down here?” Id. The
defendant responded that he had been picked up for questioning and then
confessed to the murder. Id. The officer informed the defendant of his
Miranda rights, but the defendant stated that he did not want an attorney and
that he wished to make a statement. Id.
This court held that the relevant inquiry was “whether the police
officer should have known that his words or actions were reasonably likely to
elicit an incriminating response from the [d]efendant.” 67 Haw. at 567, 698
P.2d at 284. We concluded that the defendant’s inculpatory statements were
not the product of interrogation because the officer was unaware of the
circumstances of the defendant’s detention and did not initiate questioning
until the defendant approached him. Id. at 567-68, 698 P.2d at 284-85.

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make an independent determination of the ultimate issue of

voluntariness based on the totality of circumstances. State v.

Wallace, 105 Hawai#i 131, 143-44, 94 P.3d 1275, 1287-88 (2004);

accord State v. Henderson, 80 Hawai#i 439, 442, 911 P.2d 74, 77

(1996). “The crucial test is whether the words in the context

used, considering the age, background and intelligence of the

individual being interrogated, impart a clear, understandable

warning of all of his rights.” State v. Maluia, 56 Haw. 428,

432, 539 P.2d 1200, 1205 (1975) (citation omitted). See State v.

Edwards, 96 Hawai#i at 254, 30 P.3d at 240 (concluding that

defendant voluntarily, knowingly, and intelligently waived her

Miranda rights, despite the fact that officers failed to use

reasonable effort to contact her attorney).

In this case, McKnight unambiguously invoked his right

to counsel when he indicated that he did not want to give a

statement and wanted an attorney present while being questioned.

This invoked the bright-line rule under Edwards v. Arizona, 451

U.S. at 484-85, 101 S.Ct. at 1885, and agents were prohibited

from further questioning McKnight until an attorney had been

provided or McKnight voluntarily reinitiated communication.

Agent Domingo initially ceased questioning McKnight,

but he later returned to the room with the intention of further

questioning McKnight to obtain information he hoped to use in a

warrant application. In the meantime, Agent Domingo did not

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attempt to contact an attorney on McKnight’s behalf, ask McKnight

whether he wished to contact an attorney, or provide McKnight an

opportunity to call an attorney. When McKnight asked what was

going to happen next, Agent Domingo stated that they planned to

execute a search warrant on his residence; at the time, agents

had not yet obtained a search warrant for McKnight’s residence.

McKnight then offered to give a statement; however, he again

indicated that he wished to speak to his mother. When Agent

Domingo responded that he could not promise anything, McKnight

finally agreed to continue with a statement. It was only after

this confluence of events that McKnight agreed to waive his right

to an attorney and give a statement.

The totality of the circumstances establishes that

McKnight did not reinitiate contact with Agent Domingo, and his

subsequent waiver of Miranda rights was not voluntarily give. In

addition to failing to make a reasonable effort to contact an

attorney, Agent Domingo’s conduct and his comment about executing

a search warrant on McKnight’s residence were reasonably likely to

elicit an incriminating response.16 Accordingly, McKnight’s waiver

16
This court has held that a defendant’s statement was the product
of interrogation where an officer’s comment was reasonably likely to elicit an
incriminating response—for example, where a detective asked the defendant if
he wanted to give “his side of the story,” State v. Eli, 126 Hawai#i 510, 523,
273 P.3d 1196, 1209 (2012); where an officer questioned a putative rape victim
about discrepancies in her polygraph exam and encouraged her to tell the
truth, State v. Roman, 70 Haw. 351, 358, 772 P.2d 113, 117 (1989); and where
an officer presented the defendant with incriminating evidence in the form of
(continued...)

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of the right to counsel was not voluntary, and his statement was

obtained in violation of his rights under Article I, section 10

of the Hawai#i constitution.

For the reasons stated above, we vacate the ICA’s

judgment vacating the circuit court’s February 1, 2007 order

granting McKnight’s motion to suppress his statement as

involuntary.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Rom A. Trader

16
(...continued)
written witnesses’ statements and oral explanations of that evidence, State v.
Uganiza, 68 Haw. 28, 30, 702 P.2d 1352, 1355 (1985).
By comparison, we have held that a statement was not the product
of interrogation where an officer requested the defendant’s consent to search
a nylon bag beneath the driver’s seat of a car, State v. Rippe, 119 Hawai#i
15, 22-24, 193 P.3d 1215, 1222-24 (App. 2008) (holding, however, that a
follow-up question concerning defendant’s ownership of the car along with
statement that the bag was found inside the car did constitute interrogation
because this was likely to elicit an incriminating response); or where a sign
language interpreter asked a deaf-mute defendant if he wished to make a
statement, State v. Naititi, 104 Hawai#i 224, 237, 87 P.3d 893, 906 (2004).

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PART III: THE CIRCUIT COURT ERRED IN SUPPRESSING EVIDENCE
OBTAINED PURSUANT TO THE SEARCH WARRANT

By: Recktenwald, C.J., with whom Nakayama, J., and
Circuit Judge Trader join)

We hold that under the circumstances of this case, the

evidence seized pursuant to a search warrant containing a

scrivener’s error should not be suppressed. Police seized

hundreds of files of suspected child pornography pursuant to a

search warrant supported by probable cause. The issuing judge

misdated the warrant, but the actual date of issuance was never

in dispute and the warrant was timely served. Under these

circumstances, no constitutional or other violation occurred, and

suppression of the evidence would not serve any of the purposes

of the exclusionary rule. Accordingly, the circuit court erred

in suppressing this evidence.

The Hawai#i Constitution protects against unreasonable

searches, seizures, and invasions of privacy. Haw. Const. art.

I, section 7 (1978) (providing that “[t]he right of the people to

be secure in their persons, houses, papers and effects against

unreasonable searches, seizures and invasions of privacy shall

not be violated; and no warrants shall issue but upon probable

cause, supported by oath or affirmation, and particularly

describing the place to be searched and the persons or things to

be seized or the communications sought to be intercepted”). In

addition, a judge must also follow statutory requirements when

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issuing a search warrant. See HRS §§ 803-31 to -34 (1993). In

particular, HRS § 803-34 describes requirements with regard to a

warrant’s form and content:
[t]he warrant shall be in writing, signed by the
magistrate, with the magistrate’s official
designation, directed to some sheriff or other officer
of justice, and commanding the sheriff or other
officer to search for and bring before the magistrate,
the property or articles specified in the affidavit,
to be disposed of according to justice, and also to
bring before the magistrate for examination the person
in whose possession the property or articles may be
found.

Hawai#i Rules of Penal Procedure (HRPP) Rule 41 (2010)

further establishes specific requirements that judges must follow

when issuing a search warrant. Specifically, HRPP Rule 41(c)

provides, in relevant part, that a warrant “command the officer

to search, within a specified period of time not to exceed 10

days, the person or place named for the property specified.”

Viewed against the foregoing authorities, the judge’s

scrivener’s error did not render the warrant invalid. As stated

above, in compliance with HRPP Rule 41(c), the search warrant

stated that it “may be served and the search made on or before

July 16, 2006, a date not to exceed ten (10) days from the

issuance of this search warrant[.]” (Emphasis added). Although

Judge Polak indicated on the search warrant that she signed it on

June 6, 2006, no one disputes that the search warrant was in fact

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signed and issued on July 6, 2006.17 Moreover, the affidavit

supporting the warrant refutes any notion that the search warrant

was signed on June 6, 2006. For example, the affidavit states

that “your affiant commenced the actual physical mechanics of

preparing this affidavit and attached search warrant at 1330

hours, on July 06, 2006[.]” All of the facts and circumstances

cited to establish probable cause occurred after June 6, 2006.18

It is therefore obvious that the actual issuance date could not

have been June 6, 2006. It is also undisputed that the search

pursuant to the warrant was conducted on July 6, 2006, which was

“on or before July 16, 2006, a date not to exceed ten (10) days

from the issuance of this search warrant[.]”19 Finally, the

17
Agent Domingo also testified at the motion to suppress hearing
that he presented the search warrant and affidavits to Judge Polak on July 6,
2006.

18
Accordingly, although Judge Polak wrote on the affidavit that it
was presented to her on June 6, 2006, the contents of the affidavit
demonstrate that Agent Domingo presented the search warrant and affidavit to
her on July 6, 2006.

19
The dissent states that the ten-day limitation as set forth in
HRPP Rule 41(c) “protects against stale warrants[.]” Dissenting opinion at
16. We agree. As discussed in this opinion, however, the record clearly
shows that the warrant was not stale; that is, that it was executed within 10
days of its issuance. To the extent that the dissent cites Commonwealth v.
Edmunds, 586 A.2d 887 (Pa. 1991) – which did not involve a clerical error
regarding a warrant’s issuance date but involved an affidavit that lacked
requisite facts – we note in that case, the Supreme Court of Pennsylvania
expressly declined to adopt the “good faith” exception to the exclusionary
rule, emphasizing, inter alia, that its constitution is “unshakably linked to
a right of privacy[.]” Edmunds, 586 A.2d at 898, 905-06. We also note that
Pennsylvania courts have nonetheless repeatedly rejected the argument that a
clerical error regarding the time of a warrant’s issuance is fatal. See,
e.g., Commonwealth v. Benson, 10 A.3d 1268, 1271-72, 1274 (Pa. Super. Ct.
2010). In Benson, a detective served a warrant on a cellular telephone
provider on April 28, 2008, when the warrant was issued. Id. at 1271-72. The
district judge correctly dated the section of the warrant document that
indicates the date the warrant application was sworn to, but incorrectly dated
(continued...)

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warrant was supported by probable cause.

McKnight does not argue that the search was conducted

ten days after the warrant was issued, nor does he argue that the

warrant was not supported by probable cause. Rather, he argues

that the evidence obtained pursuant to the warrant must be

suppressed solely because the judge misdated the warrant.20 We

decline to hold that such a technical error renders the warrant

in this case invalid. The above facts, undisputed by the parties

and supported by the record, establish the following: the

warrant set forth a date by which it had to be served, that date

did not exceed ten days from the warrant’s issuance, and the

warrant – supported by probable cause – was timely executed. No

constitutional or other violation occurred, and it thus cannot be

said that the search was illegal. See Haw. Const. art. I,

section 7 (providing that “no warrants shall issue but upon

probable cause, supported by oath or affirmation, and

19
(...continued)
the issuing section of the warrant application as April 29, 2008. Id. The
Pennsylvania Superior Court stated that even if the defendant had a legitimate
expectation of privacy in the seized telephone records, the clerical error did
not invalidate the warrant, because “Pennsylvania Courts have long held that a
technical defect in a warrant, such as the mis-dating at issue here, does not
render a warrant invalid in the absence of a showing of prejudice.” Id. at
1274 (citing Commonwealth v. Hamlin, 469 A.2d 137, 140 (Pa. 1983) and
Commonwealth v. Begley, 780 A.2d 605, 641 (Pa. 2001)).

20
McKnight argues that “[c]ompliance was impossible” because the
warrant limited the search to a date not to exceed ten days from the issuance,
and the date of the issuance on the face of the warrant read “June 6, 2006.”
However, the warrant expressly specified that July 16, 2006 was the “date not
to exceed ten (10) days from the issuance[.]” Thus, compliance with the terms
of the warrant, which was actually issued on July 6, 2006, was possible; and,
under the undisputed facts of the case, compliance did occur.

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particularly describing the place to be searched and the persons

or things to be seized or the communications sought to be

intercepted”); HRS § 803-34; HRPP Rule 41(c) (requiring a warrant

to “command the officer to search, within a specified period of

time not to exceed 10 days, the person or place named for the

property specified”).

Numerous jurisdictions have rejected the contention

that scrivener’s errors render a search warrant invalid.21 See

John M. Burkoff, Search Warrant Law Deskbook § 10:2 & § 10.2 n.10

(2013) (listing state and federal cases supporting the

proposition that a “clerical error on the face of the warrant

misstating or omitting the date or time of issuance is generally

held not to be controlling as to the actual date or time of

21
For example, the Ninth Circuit Court of Appeals rejected the
argument that a judge’s misdating of a search warrant rendered the warrant
invalid. See United States v. Hitchcock, 286 F.3d 1064, 1072 (9th Cir. 2002).
In Hitchcock, an agent obtained and executed a search warrant on November 16,
1998. Id. at 1071. The agent left a copy of the warrant, dated November 17,
1998, with the defendant’s mother. Id. At the outset, the Ninth Circuit
rejected the application of the good faith exception, stating: “As we have
described it, the good faith exeception to the exclusionary rule permits law
enforcement officers reasonably to rely on search warrants that are later
determined to be invalid[.]” Id. The Ninth Circuit further stated that
“[t]he good faith exception has no application here, where there is no dispute
about the search warrant’s validity but only about whether the agents executed
the warrant before it was effective.” Id. The Ninth Circuit noted that the
defendant did not dispute that although the warrant was dated November 17,
1998, the judge signed and issued the warrant on November 16, 1998. Id. at
1072. The Ninth Circuit also noted that the judge corrected the return copy
of the warrant to read “November 16, 1998,” and that there was no evidence
indicating that the judge intended to postdate the warrant. Id. Ultimately,
the Ninth Circuit concluded that “where an agent obtains a search warrant from
the court and later that day conducts an otherwise valid search, the search is
within the scope of the warrant, notwithstanding the fact that the warrant is
post-dated by one day, so long as the evidence in the record indicates that
the only reason the search warrant was post-dated was the court’s
inadvertence.” Id.

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issuance of the warrant”). For example, in State v. Dalton, 887

P.2d 379 (Or. Ct. App. 1994), a police officer presented a

magistrate with an affidavit dated November 9, 1993, but the

magistrate issued a warrant dated October 9, 1993. 887 P.2d at

379-80. The warrant was executed the day after its issuance, on

November 10, 1993. Id. at 380. The Oregon Court of Appeals held

that the inadvertent misdating of the warrant was “simply a

scrivener’s error” that “did not frustrate the constitutional

objective served by the statutory requirement that search

warrants be dated and executed within five days of their

issuance.” Id. In a subsequent case, the Oregon Court of

Appeals held that the lack of a year on a warrant’s issuance date

was a mere scrivener’s error that did not require suppression,

noting:
There is no explicit constitutional requirement for a
particularized date or, for that matter, for any date
at all; rather, the constitution requires only that
the warrant be based “upon probable cause, supported
by oath, or affirmation, and particularly describing
the place to be searched, and the person or thing to
be seized.”

State v. Radford, 196 P.3d 23, 26 (Or. Ct. App. 2008); see also

Heard v. State, 612 S.W.2d 312 (Ark. 1981) (upholding the

validity of a search warrant which was dated 1978 on the top of

the document but dated 1976 above the issuing judge’s signature

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where evidence showed that 1978 was the correct year and the

discrepancy was an obvious clerical typographical error).22

Jurisdictions that have refused to invalidate search

warrants because of a scrivener’s error also include states with

constitutions that, like ours, recognize the right against

unreasonable invasions of privacy as part of their constitutional

search and seizure provisions. For example, the Supreme Court of

South Carolina expressly refused to find that the misdating of a

search warrant rendered it invalid. State v. Shupper, 207 S.E.2d

799, 800-01 (S.C. 1974) (cited with approval in State v. Herring,

692 S.E.2d 490, 496 (S.C. 2009)); S.C. Const. art. 1, § 10.23 In

22
The dissent argues that the aforementioned Oregon and Arkansas
cases are “inapposite” because the constitutions of those states do not
contain the same language regarding the right to privacy that appears in our
state constitution; namely, the right to be secure in one’s “persons, houses,
papers and effects against unreasonable searches, seizures and invasions of
privacy[.]” Dissenting opinion at 43-44 (citing Haw. Const. art. I § 7
(emphasis in dissenting opinion)). Respectfully, this distinction is not
dispositive to the issue here, which is whether a scrivener’s error in the
warrant alone renders the resulting search, seizure and invasion of privacy
unreasonable. In other words, the issue here does not turn on whether the
constitution explicitly protects against invasions of privacy; rather, the
question is whether an invasion (and search or seizure) is unreasonable. In
any event, as discussed infra, jurisdictions with express privacy protections
in their constitutions have also similarly rejected the argument that
scrivener’s errors alone justify invalidating a warrant.

23
Article 1, section 10 of the South Carolina Constitution provides:

The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable
searches and seizures and unreasonable invasions of
privacy shall not be violated, and no warrants shall
issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to
be searched, the person or thing to be seized, and the
information to be obtained.

(Emphasis added).

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Shupper, the date typed on the search warrant was January 5,

1972, and the search was made on January 5, 1973. 207 S.E.2d at

800. The defendant claimed that the warrant violated a statute

that required “execution and return ‘within ten days after (the

warrant) is dated[.]’” Id. The Supreme Court of South Carolina

rejected that argument, stating that the incorrect date “was a

mere typographical error not affecting [t]he validity of the

search which actually occurred within an hour or two of the

issuance of the warrant.” Id.

In another jurisdiction with a constitutional privacy

provision similar to Hawaii’s, the Court of Appeal of Louisiana

held that a search warrant erroneously dated five months prior to

its actual issuance date was not invalid. State v. E.J.F., 999

So.2d 224, 231-32 (La. Ct. App. 2008); La. Const. art. 1, § 5.24

In that case, the search warrant was originally dated July 21,

2005, and was corrected by the issuing judge, following the

search, to read December 21, 2005. E.J.F., 999 So.2d at 231.

24
Article 1, section 5 of the Louisiana Constitution provides:

Every person shall be secure in his person, property,
communications, houses, papers, and effects against
unreasonable searches, seizures, or invasions of
privacy. No warrant shall issue without probable
cause supported by oath or affirmation, and
particularly describing the place to be searched, the
persons or things to be seized, and the lawful purpose
or reason for the search. Any person adversely
affected by a search or seizure conducted in violation
of this Section shall have standing to raise its
illegality in the appropriate court.

(Emphasis added).

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Relying on a Louisiana Code of Criminal Procedure provision

prohibiting the execution of a search warrant “after the

expiration of the tenth day after its issuance[,]” the defendant

argued that the evidence seized pursuant to the search warrant

should have been suppressed “on the grounds of the warrant being

stale, as December 21 is obviously more than ten days past July

21.” Id. at 231-32, 231 n.4. The issuing judge, who also

presided over the defendant’s trial and denied the defendant’s

motion to suppress, took judicial notice of his handwriting on

the search warrant where the corrections to the date were made.

Id. at 231-32. On appeal, the E.J.F. court held that the warrant

had not expired, noting that testimony clearly indicated that the

application for the search warrant was presented to the judge on

December 21, 2005, and that the investigation did not begin until

December 19, 2005. Id. at 233. The court further stated that

“[t]o suggest that the warrant was stale simply ignores the

possibility of typographical error, particularly when the judge

took judicial notice of his signature next to the correction and

the defendant presented no evidence to establish that the warrant

was actually prepared on July 21, 2005.” Id.

Similarly, the Appellate Court of Illinois upheld the

validity of a warrant, which erroneously indicated an issuance

time that was about ten hours after the search was actually

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conducted.25 People v. Deveaux, 561 N.E.2d 1259, 1263-64 (Ill.

App. Ct. 1990). The Deveaux court noted that although there is a

presumption that the time indicated on a search warrant controls

its validity, “extrinsic evidence is permitted to show and

correct an obvious clerical error.” Id. at 1264 (citation

omitted). The Deveaux court also noted statutory language

prohibiting the quashing of warrants “‘because of technical

irregularities’” that do not affect the defendant’s substantial

rights. Id. Based on the officer’s “uncontroverted testimony”

showing that he was in possession of the warrant at the time of

the search, the Deveaux court held that “the time of issuance was

a technical irregularity which did not affect defendant’s

substantial rights.” Id. The court explained that the

defendant’s constitutional rights were not violated or disturbed

where, inter alia, the officer’s complaint for a search warrant

was supported by an affidavit describing the place to be searched

and the person and things to be seized, the defendant made no

25
Article 1, section 6 of the Illinois Constitution provides:

The people shall have the right to be secure in their
persons, houses, papers and other possessions against
unreasonable searches, seizures, invasions of privacy
or interceptions of communications by eavesdropping
devices or other means. No warrant shall issue
without probable cause, supported by affidavit
particularly describing the place to be searched and
the persons or things to be seized.

(Emphasis added).

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claim that the warrant lacked probable cause, and the officer

executed the search after obtaining the warrant.26 Id.

Finally, in Montana, which has a stand-alone

constitutional provision recognizing the right to individual

privacy,27 the misdating of a search warrant will not necessarily

render the warrant invalid. See State v. Steffes, 887 P.2d 1196,

1210 (Mont. 1994) (holding that, where the search warrant was

misdated June 19, 1991 and was executed on June 18, 1991, the

misdating “was merely technical, and did not affect the

substantial rights of the defendant”).28

26
The dissent argues that the foregoing South Carolina, Louisiana,
and Illinois cases are not germane to the instant case because those states
recognize a general “good faith” exception to the warrant requirement.
Dissenting opinion at 44-45. Respectfully, however, none of the above cases
relied on a “good faith” exception in determining that a mere clerical error
alone does not invalidate a warrant. Moreover, the cases cited by the dissent
with regard to the “good faith” exception, see dissenting opinion at 44-45,
are factually distinguishable from the instant case and involve the
application of a good faith exception analysis only after determining that the
warrant was invalid. See State v. Covert, 628 S.E.2d 482, 486-87 (S.C. Ct.
App. 2006), aff’d, 675 S.E.2d 740 (S.C. 2009) (conducting a good faith
exception analysis after finding that a warrant was defective because the
magistrate’s signature was dated two days after the search, and “there was no
evidence that the magistrate signed the warrant before the search” (emphasis
added)); State v. Maxwell, 38 So.3d 1086, 1091 (La. Ct. App. 2010) (holding
that a warrant lacking a description of items to be seized was not facially
invalid, and finding, in the alternative, that “even if the warrant were found
to be deficient,” the seized evidence was admissible under the good faith
exception); People v. Turnage, 642 N.E.2d 1235, 1238-39 (Ill. 1994) (applying
a good faith exception analysis after determining that a “repetitive” arrest
warrant issued after the defendant was arrested on identical charges and
released on bond was invalid).

27
Article II, section 10 of the Montana Constitution provides: “The
right of individual privacy is essential to the well-being of a free society
and shall not be infringed without the showing of a compelling state
interest.”

28
The dissent appears to distinguish Steffes by noting that the
Steffes court’s upholding of the search warrant was based on a Montana statute
that precluded searches and seizures from being rendered illegal by
(continued...)

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In sum, the clerical error in the instant case did not

render the search warrant invalid.

Moreover, suppressing the evidence would not further

any of the purposes of Hawaii’s exclusionary rule. This court

has recognized three purposes underlying Hawaii’s exclusionary

rule: (1) judicial integrity, (2) the protection of individual

privacy, and (3) deterrence of illegal police misconduct. State

v. Torres, 125 Hawai#i 382, 394, 262 P.3d 1006, 1018 (2011). As

stated above, the only basis to suppress the evidence obtained

pursuant to the search warrant in this case would be the issuing

judge’s clerical error. In light of the facts in the instant

case, suppressing the evidence because of a scrivener’s error

does not serve any of the purposes of the exclusionary rule.

First, suppressing the evidence would not enhance

judicial integrity. “The ‘judicial integrity’ purpose of the

exclusionary rule is essentially that the courts should not place

their imprimatur on evidence that was illegally obtained by

28
(...continued)
“irregularities in the proceedings [that] do not affect the substantial rights
of the accused.” Dissenting opinion at 45 (quotation marks and citations
omitted). Respectfully, this distinction is not dispositive. First, statutes
cannot override the protections provided by constitutional provisions. See,
e.g., Becky v. Butte-Silver Bow Sch. Dist. No. 1, 906 P.2d 193, 196 (Mont.
1995) (stating that “the Montana Constitution is the supreme law of the state
and preempts contrary statutes or rules”). Moreover, Steffes remains
instructive for its holding that the misdating of a warrant alone, where the
actual date of issuance has been determined, is a mere technical error that
does not violate a defendant’s substantial rights. Here, as stated above, the
clerical error at issue in the instant case did not prejudice McKnight or
otherwise violate his substantial rights.

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allowing it to be admitted into evidence in a criminal

prosecution.” Torres, 125 Hawai#i at 394, 262 P.3d at 1018

(citation omitted). Thus, “when evidence is not obtained

illegally, no loss of judicial integrity is implicated in a

decision to admit the evidence.” State v. Bridges, 83 Hawai#i

187, 196, 925 P.2d 357, 366 (1996) (citation and quotation marks

omitted), overruled on other grounds by Torres, 125 Hawai#i 382,

262 P.3d 1006.

Here, there is no harm to judicial integrity in

admitting the seized evidence at issue because, as discussed

supra, the mere scrivener’s error in the issuance date did not

result in an unreasonable invasion of McKnight’s privacy. As

stated above, the search warrant was supported by probable cause,

and the search was executed within ten days of the issuance of

the warrant. Accordingly, admitting the seized evidence, under

these circumstances, in no way compromises judicial integrity.

Second, suppressing the evidence would not serve to

protect individual privacy rights. The “primary purpose of both

the Fourth Amendment and article I, section 7 [of the Hawai#i

Constitution] is to safeguard the privacy and security of

individuals against arbitrary invasions by government officials.”

State v. Lopez, 78 Hawai#i 433, 441, 896 P.2d 889, 897 (1995)

(citation and quotation marks omitted). Here, the search of

McKnight’s residence was not “arbitrary” because government

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agents had established a legitimate basis for the search on July

6, 2006, when the search warrant was executed. The warrant was

supported by probable cause, and the search was executed on the

same day that the search warrant was issued, in compliance with

HRPP Rule 41. The existence of the scrivener’s error in no way

altered these facts, and the search would not have been conducted

in a different manner or time had the court written the correct

issuance date on the jurat. In other words, the mere scrivener’s

error caused no greater invasion of McKnight’s privacy than would

have occurred had the court written the correct issuance date on

the jurat. As the ICA stated, “suppression of the search warrant

evidence under the circumstances of this case would only serve to

benefit those who were validly subject to search, but by pure

fortuity happened to draw an issuing judge who made a clerical

error in signing the warrant.” McKnight, 128 Hawai#i at 341-42,

289 P.3d at 977-78. Accordingly, suppressing the evidence at

issue would not serve to protect the privacy purpose underlying

the exclusionary rule.

Finally, suppression would not advance the principle of

deterring illegal police conduct. As stated above, Agent Domingo

properly presented a search warrant supported by probable cause

to the district court, the search warrant limited the search to

no later than July 16, 2006, a date not exceeding 10 days after

July 6, 2006, when the warrant was issued, and the resulting

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search occurred that day. The only issue here is a clerical

error made by the court. Simply stated, no illegal police

conduct occurred. Accordingly, suppression of the evidence

obtained as a result of the search warrant would not serve to

deter law enforcement misconduct.

In sum, the clerical error by the issuing judge did not

render the search warrant invalid, and suppressing evidence

seized pursuant to the warrant would not further the purposes of

the exclusionary rule where, as in this case, the warrant was

supported by probable cause, the evidence demonstrates the actual

date of issuance, and the warrant was executed within the time

frame specified in HRPP Rule 41.29 Therefore, the evidence

obtained pursuant to the warrant should not have been suppressed.

29
For all of these reasons, we overrule State v. Endo, 83 Hawai#i
87, 924 P.2d 581 (App. 1996). To the extent that the Endo court held that the
privacy protections under the Hawai#i Constitution prohibit searches under
circumstances such as in the instant case, we respectfully disagree. The
constitution’s explicit protections against unreasonable invasions of privacy
cannot be said to be violated by a technical scrivener’s error where, as here,
the search warrant was supported by probable cause and it is undisputed that
it was timely executed.

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Accordingly, we affirm the ICA’s judgment to the extent

that it vacates the circuit court’s suppression order as to the

evidence obtained pursuant to the search warrant, and remand the

case for further proceedings consistent with this opinion.

Benjamin E. Lowenthal, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
David M. Louie, Attorney
General; Kimberly Tsumoto /s/ Rom A. Trader
Guidry, First Deputy Solicitor
General; Marissa H.I. Luning,
Deputy Solicitor General,
for respondents

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