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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-JUN-2019
02:26 PM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I,
Respondent/Plaintiff-Appellant,
vs.
JAMES WELDON, also known as James William Weldon,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 13-1-1351)
JUNE 28, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY NAKAYAMA, J.
Article I, section 7 of the Hawai#i Constitution
ensures that “[t]he right of the people to be secure in their
persons, houses, papers and effects against unreasonable
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searches, seizures and invasions of privacy shall not be
violated[.]” This right is guaranteed to every person, without
regard to the wealth of the individual or the place and time at
which the individual is stopped. In this case, we reaffirm these
fundamental principles and conclude that evidence discovered when
the police illegally stopped and seized Petitioner/Defendant-
Appellee James Weldon (Weldon) is inadmissible at trial.
In the early morning of June 4, 2013, Weldon was
approached by Honolulu Police Department (HPD) police officers
while he was lying down on a concrete slab adjacent to an
apartment complex on Waikîkî beach. Several police officers
approached him intending to address whether certain items
(namely, charcoal embers, cooked meat, and empty beer bottles) in
the vicinity belonged to him. When an officer asked Weldon to
provide his identification, he provided a Veterans Affairs (VA)
medical card to the officer.
After Weldon handed the medical card to the police
officer, the officer noticed that Weldon was grasping something
in his backpack, and ordered Weldon to take his hand out of the
backpack. Weldon refused. A second officer then pulled the bag
from Weldon. As the officer pulled the bag away, an eight-inch
collapsible baton fell out of the backpack. Weldon grabbed the
baton and pulled it up to the right side of his head as if to
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brandish it. The police officers eventually wrested control of
the baton away from Weldon and arrested him.
Respondent/Plaintiff-Appellant State of Hawai#i (the State) later
charged Weldon with one count of carrying a deadly weapon in
violation of Hawai#i Revised Statutes (HRS) § 134-51(a).
The Circuit Court of the First Circuit (circuit court)
granted Weldon’s motion to suppress evidence of the baton. The
State appealed, and the Intermediate Court of Appeals (ICA)
vacated the circuit court’s order granting Weldon’s motion to
suppress, concluding that the seizure was incident to a valid
weapons search. Weldon filed an application for writ of
certiorari.
We reverse the ICA’s judgment on appeal. On the facts
of this case, the police lacked reasonable suspicion to seize
Weldon while he was lying next to the beach in Waikîkî.
Accordingly, the police violated Weldon’s constitutional rights
by approaching him, asking for identification, and seizing his
backpack. Evidence from this unconstitutional search and seizure
must be suppressed.
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I. BACKGROUND
A. Circuit Court Proceedings1
On November 4, 2013, the State charged Weldon via an
amended complaint with one count of carrying a deadly weapon in
violation of HRS § 134-51(a).2
On April 21, 2014, Weldon filed a Motion to Suppress
Evidence (Motion to Suppress), and argued that the circuit court
should suppress evidence and statements obtained from the
warrantless search and seizure of Weldon. He argued that the
police officers violated his constitutional rights under the
United States Constitution and under article I, section 7 of the
Hawai#i Constitution.3 Weldon contended that prior to being
1
The State originally filed a complaint in the District Court of
the First Circuit on June 5, 2013. Weldon demanded a jury trial, and the
district court committed his case to circuit court on September 11, 2013.
2
HRS § 134-51(a) (2011) provides:
Deadly weapons; prohibitions; penalty. (a) Any
person, not authorized by law, who carries concealed upon
the person’s self or within any vehicle used or occupied by
the person or who is found armed with any dirk, dagger,
blackjack, slug shot, billy, metal knuckles, pistol, or
other deadly or dangerous weapon shall be guilty of a
misdemeanor and may be immediately arrested without warrant
by any sheriff, police officer, or other officer or person.
Any weapon, above enumerated, upon conviction of the one
carrying or possessing it under this section, shall be
summarily destroyed by the chief of police or sheriff.
3
Article I, section 7 of the Hawai#i Constitution provides:
The 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
(continued...)
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detained and questioned by the police officers, Weldon “was not
engaged in any overt violation of any criminal law.” Weldon
stated that under our case law, “[p]olice may not randomly
‘encounter’ individuals without an objective basis for suspecting
them of misconduct and then place them in a coercive environment
in order to develop reasonable suspicion to justify their
detention.” Thus, Weldon concluded that “it was only by virtue
of the unlawful conduct of the police officers that the alleged
deadly weapon became visible to the police officers,” and
“[a]ccordingly, all evidence seized subsequent to the detention
and questioning of Mr. Weldon was tainted . . . and must be
suppressed as fruits of the unlawful seizure.”
In its memorandum in opposition to Weldon’s Motion to
Suppress, the State argued that the police officers “had a
reasonable suspicion that criminal activity was afoot.”
Specifically, the State contended:
The articulable facts in support of the Officers’ belief
stop [sic] include, but are not limited to, the observation
of the alcoholic beverage containers, the charcoal residue
of an extinguished fire, and discarded cooked meat that were
in close proximity to the Defendant. If the Defendant had
the alcoholic beverages and extinguished fire on the
beach/beach access these would be in violation of the R.O.H.
40-1.2(a) and H.A.R. 13-13-24(4) as indicated supra.
Officers also indicated that when they were talking to the
Defendant he was sitting on the property break wall of 2801
3
(...continued)
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.
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[C]oconut Avenue. [The officer] confirmed that the
Defendant did not live in the condos and could be possibly
violating H.R.S. 708-815.[4] Officers had a reasonable
suspicion that criminal activity was afoot and detained the
Defendant to investigate but did not have probable cause to
arrest the Defendant.
The circuit court held a hearing on Weldon’s Motion to Suppress
on June 16, 2014.5 Two HPD police officers, Officer Heyworth and
Officer Wilson, testified.
1. Officer Heyworth’s Testimony
Officer Heyworth testified that on June 4, 2013, he was
assigned to patrol the Waikîkî area. He stated that part of the
patrol area included the area around 2801 Coconut Avenue, which
was “a particular hot spot, that block.” He testified that when
he arrived at the address around 7:00 a.m., he noticed “discarded
embers from a fire, um, meat, cooked meat strewn everywhere, and,
uh, beer bottles. [He] also noticed a male about five to six
feet away from them, uh, laying down.” He identified the male as
Weldon. Officer Heyworth stated that he approached Weldon
because he “wanted to address, uh, the items, see, you know, if
they were his. So I just went up to him to talk to him.” Upon
approaching Weldon, Officer Heyworth noticed that Weldon was
mumbling, slow to respond, and not necessarily cooperative when
4
However, a police officer later testified that the beach area
where Weldon was lying down was accessible to the public. The officer did not
check to determine whether there were signs indicating that the concrete slab
or retaining wall where Weldon was lying was private property. He also stated
that no trespass case was created against Weldon.
5
The Honorable Lono J. Lee presided.
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he was asked for his name and identification. Weldon eventually
went into his backpack and provided him with a VA medical card.
By this time, Officer Wilson had also arrived on the scene.
Officer Heyworth explained that after handing over his
VA medical card, Weldon continued to grasp something inside the
backpack. While Officer Heyworth could not see what he was
grasping, he ordered Weldon to remove his hand from the backpack.
When Weldon refused to remove his hand from the
backpack, Officer Heyworth stated that Officer Wilson attempted
to grab the backpack away, and when he succeeded in pulling the
bag away, a collapsible baton fell on the concrete area beside
Weldon. Officer Heyworth testified that Weldon picked the baton
up “and brought it to the right ear, his right ear, and
brandished it in a manner as if to strike me or Officer Wilson.”
Recognizing the baton as a deadly weapon, Officer Heyworth told
Weldon to drop the baton and that he was under arrest.
On cross-examination, defense counsel asked Officer
Heyworth why he had visited 2801 Coconut Avenue that morning.
Officer Heyworth responded that there were general complaints
from residents in the area about a high level of burglaries, so
he was “making checks of the area.” Officer Heyworth clarified
that he was not responding to any specific complaint or call.
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Defense counsel then showed Officer Heyworth a
photograph of the beach side of 2801 Coconut Avenue and asked him
to indicate where he saw Weldon and where he saw the items that
led him to further investigate Weldon. Officer Heyworth
responded that Weldon may have been lying down towards the right
side of the photograph, and that the “discarded embers from a
fire” were not in the area depicted by the photograph. He
testified that there was no “fire pit or barbecue grill” in the
area. He further stated that at the time that he approached
Weldon, Weldon was not drinking any beer or alcohol, was not
eating any food, and was not using illicit drugs.
Officer Heyworth testified that he approached Weldon to
“address his welfare after observing those items.” Defense
counsel asked, “just to clarify, based on the observations of the
beverage containers, the residue of the fire, and the disregarded
meat, those were the - I guess the factors that led you to
believe that there was some type of criminal activity going on?”
Officer Heyworth responded, “I wanted to determine if they were -
they were his.” When asked whether he had ever questioned Weldon
about whether the items were his, Officer Heyworth responded that
“[t]he first thing I asked was his name I believe.”
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2. Officer Wilson’s Testimony
Officer Wilson testified that when he arrived at 2801
Coconut Avenue, he initially saw Weldon, “several bottles, uh, a
barbecue, and some meat that had been barbecued . . . [and]
several backpacks.” He stated that the glass bottles were empty,
and “they appeared to be of the alcoholic type beverage and maybe
some soda bottles.” Officer Wilson testified that when he
arrived on the scene, he initially observed Weldon lying down on
the “concrete pad.” Officer Wilson stated that “basically we
approached, we asked for ID, tried to identify who this is.” He
explained that “we” referred to Officer Heyworth, himself, and a
third officer who arrived shortly after.
When Weldon failed to comply with Officer Heyworth’s
instruction that he “not go into his bag,” Officer Wilson
testified that he pulled the bag away from Weldon, and he
“immediately recognized in [Weldon’s] right hand a collapsible
baton.” Officer Wilson testified that Weldon “pulled his right
hand back with the baton. At that time it extended.”
On cross-examination, when shown the same photograph of
the area as shown to Officer Heyworth, Officer Wilson indicated
that Weldon had been lying down in the middle of the photograph.
He also stated that the charcoal type grill and the glass bottles
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were on Weldon’s left, and the backpacks on Weldon’s right.6
When asked why he approached Weldon, Officer Wilson replied, “we
were in the area making routine checks identifying people. Uh,
we could do it – at that time we were doing it, uh, daily.”
Officer Wilson also stated that while Weldon was brandishing the
baton, he was sitting up, and “[h]is legs were still forward flat
on the concrete.”
On recross-examination, Officer Wilson testified that
while tenants of the apartment building above the concrete wall
could access a locked gate that led into the apartment, “you
can’t, um, stop access to the beach area.” Officer Wilson stated
that he was not sure whether there were signs on the wall
denoting that the area was private property, or stating “keep off
this wall.” Officer Wilson further testified that no trespass
case was created against Weldon.
3. Circuit Court Order Granting Motion to Suppress
During closing arguments, the State and defense counsel
disputed whether the officers had reasonable suspicion to believe
that Weldon was engaged in criminal activity. The State argued
that the officers had individualized suspicion to approach Weldon
to investigate possible criminal activity. Defense counsel
6
This appears to contradict Officer Heyworth’s testimony, in which
he stated that he did not see any physical barbecue grill, but just some
remaining embers from a fire.
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countered that the officers lacked reasonable suspicion to
approach Weldon because “there’s nothing in evidence to show that
Mr. Weldon is connected in time to these, you know, bottles or
grill.” Defense counsel also stated that when the officers
approached Weldon, they did not inquire whether the items were
his, but first asked for his identification. At the conclusion
of the hearing, the circuit court orally granted Weldon’s Motion
to Suppress.
The circuit court entered its written Findings of Fact,
Conclusions of Law and Order Granting Defendant’s Motion to
Suppress Evidence (Order Granting Motion to Suppress) on July 8,
2014. Therein, the circuit court made the following findings of
fact and conclusions of law:
1. Police officers may stop and detain an individual if
the officers have reasonable suspicion that the person
stopped was engaged in criminal conduct.
2. Police officers, in that situation, must be able to
point to specific articulable facts which, taken
together with rational inferences from those facts,
reasonably warrant that intrusion.
3. In this case, there was reasonable suspicion for the
police officers to approach Defendant and investigate
based upon the past complaints of criminal activity in
the area and the proximity of bottles, cooked meat,
and extinguished fire to Defendant.
4. However once detained there was no reasonable
suspicion for the police officers to search
Defendant’s backpack based on the articulable facts
and circumstances known at that time.
5. Therefore, Defendant’s Motion to Suppress Evidence is
granted.
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Stated differently, while the circuit court determined that the
officers had reasonable suspicion to approach Weldon and inquire
as to the items located around him, the circuit court concluded
that the officers did not have reasonable suspicion to
subsequently search Weldon’s backpack.
B. ICA Proceedings
The State filed a notice of appeal. In its opening
brief, the State argued that the circuit court erred in
suppressing evidence of the baton because “the discovery of the
baton was the result of a valid protective weapons search.” The
State disputed the circuit court’s fourth conclusion of law, and
noted that it was reasonable for the officers to conduct a
weapons search once they saw Weldon “grasping something” in his
backpack. The State cited the United States Supreme Court’s
(Supreme Court) decision in Terry v. Ohio, 392 U.S. 1, 30-31
(1968), in which the Supreme Court stated:
where nothing in the initial stages of the encounter serves
to dispel [a police officer’s] reasonable fear for his own
or others’ safety, he is entitled for the protection of
himself and others in the area to conduct a carefully
limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault
him. Such a search is a reasonable search under the Fourth
Amendment, and any weapons seized may properly be introduced
in evidence against the person from whom they were taken.
Here, the State argued that Officer Wilson testified
that “[a]t no time were we trying to search [Weldon’s]
belongings,” and noted that Officer Wilson “simply pulled the bag
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away from Weldon and ‘immediately recognized in [Weldon’s] right
hand a collapsible baton.’” Once Officer Wilson saw the baton,
the State argued that under the totality of the circumstances, he
was justified in taking measures to neutralize the threat of harm
to himself and to others. (Citing State v. Uddipa, 3 Haw. App.
415, 418, 651 P.2d 507, 510-11 (1982)). Because the weapons
search was reasonable, the State requested that the ICA vacate
the circuit court’s Order Granting Motion to Suppress.
In his answering brief, Weldon argued that the circuit
court did not err in granting his Motion to Suppress. Weldon
contended, however, that the baton was correctly suppressed
because under the totality of the circumstances, the officers had
“no specific and articulable facts indicat[ing] that Weldon had
been or was about to be engaged in criminal activity.”
Thus, Weldon argued that the circuit court’s third
conclusion of law stating that the police officers had reasonable
suspicion to approach Weldon, was unsupported by the evidence.7
Weldon noted that in State v. Barnes, 58 Haw. 333, 338, 568 P.2d
1207, 1211 (1977), this court stated:
To justify an investigative stop, short of an arrest
based on probable cause, “the police officer must be able to
point to specific and articulable facts which, taken
7
Weldon argued that the ICA could affirm the circuit court’s Order
Granting Motion to Suppress on different grounds than those found by the
circuit court. (Citing Strouss v. Simmons, 66 Haw. 32, 40, 657 P.2d 1004,
1010 (1982)).
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together with rational inferences from those facts,
reasonably warrant that intrusion.” [Terry, 392 U.S. at
21]. The ultimate test in these situations must be whether
from these facts, measured by an objective standard, a
[person] of reasonable caution would be warranted in
believing that criminal activity was afoot and that the
action taken was appropriate.
Weldon argued that in this case, “[t]he police had no reasonable
suspicion to temporarily detain Weldon because they could point
to no specific and articulable facts that Weldon was involved in
any criminal activity.” Here, although Officer Heyworth claimed
that Weldon was “five to six feet” from the cooked meat, the
charcoal embers, and the glass bottles, when shown a picture of
the beach and foundational wall, he also stated that the
discarded charcoal was located outside the immediate area around
Weldon. Weldon therefore argued that the officers’ suspicions
that he was the source of the strewn items were unreasonable.
Weldon also stated that according to the officers’ testimony,
Weldon was lying down, apparently sleeping or resting, not eating
or drinking, and “was not doing anything else illegal or
suspicious.” Therefore, Weldon concluded that “a [person] of
reasonable caution would [not] be warranted in believing that
Weldon was involved in any criminal activity, so the police’s
intrusion on him was [not] appropriate, and the circuit court
properly suppressed the billy/baton.”
On April 25, 2018, the ICA entered a memorandum opinion
vacating the circuit court’s Order Granting Motion to Suppress.
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State v. Weldon, No. CAAP-XX-XXXXXXX, 2018 WL 1940952 (App. Apr.
25, 2018) (mem.). The ICA concluded that (1) the officers had
reasonable suspicion to approach Weldon and temporarily detain
him for questioning, and (2) once the officers saw Weldon grasp
something from his backpack, the officers had a reasonable basis
to infer that Weldon was armed and dangerous, and could seize the
backpack.
In concluding that the officers had reasonable
suspicion to approach Weldon, the ICA noted that the “empty beer
bottles, strewn cooked meat, and discarded embers from a fire on
the beach . . . were in close proximity to Weldon, who was the
only person in the vicinity.” Because it is a crime to possess
an open container of intoxicating liquor on the beach, Revised
Ordinances of Honolulu §§ 40-1.2, 10-1.1 (1990), and to knowingly
drop, place, or throw litter on any public or private property,
HRS § 708-829 (Supp. 2006), the ICA concluded that Weldon’s close
proximity to these items “provided the police with a reasonable
suspicion that criminal activity involving Weldon was afoot.”
Thus, the ICA also concluded that the officers could momentarily
detain Weldon.
In concluding that the officers also had reasonable
suspicion to search Weldon’s backpack, the ICA first noted that
Hawai#i case law allows police officers to conduct protective
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searches for weapons during an investigative detention if the
officers can reasonably infer from the detained person’s specific
conduct and from attendant circumstances that the person is armed
and presently dangerous. (Citing State v. Ortiz, 67 Haw. 181,
185, 683 P.2d 822, 826 (1984)). When Officer Heyworth saw Weldon
grasp something in his backpack, and when Weldon refused to
comply with the officers’ demands to remove his hand from the
backpack, the ICA determined that Officer Wilson’s actions in
seizing the backpack were justified as a valid protective search
for weapons. The ICA thus concluded that the officers’ recovery
of the baton did not violate Weldon’s constitutional rights.
Accordingly, the ICA vacated the Order Granting Motion
to Suppress and remanded the case for further proceedings. The
ICA entered its judgment on appeal on May 24, 2018.
D. Notice of Weldon’s Death
Weldon timely filed an application for writ of
certiorari on July 25, 2018. We accepted his application on
August 28, 2018 and scheduled the case for oral argument.
On November 2, 2018, the Office of the Public Defender
(OPD) notified this court that it believed Weldon had passed away
on April 22, 2018. Pursuant to Hawai#i Rules of Appellate
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Procedure (HRAP) Rule 43(a),8 OPD requested that it be
substituted as the party-in-interest for Weldon. We denied OPD’s
Motion for Substitution, and ordered OPD to “make reasonable
efforts to locate an individual or entity to serve as personal
representative for [Weldon].”
After oral argument was held, OPD informed us that,
despite its efforts, it could not find a proper personal
representative to substitute for Weldon.
II. STANDARD OF REVIEW
A. Motion to Suppress
“An appellate court reviews a ruling on a motion to
suppress de novo to determine whether the ruling was ‘right’ or
‘wrong.’” State v. Tominiko, 126 Hawai#i 68, 75, 266 P.3d 1122,
1129 (2011) (quoting State v. Prendergast, 103 Hawai#i 451, 453,
83 P.3d 714, 716 (2004)).
8
HRAP Rule 43(a) (2010) provides in relevant part:
(a) Death of a party. If a party dies after the notice
of appeal is filed, or while the proceeding is otherwise
pending in a Hawai#i appellate court, that court may
substitute the personal representative of the deceased party
as a party on motion filed by the representative or by any
party. The motion shall be served upon the representative
in accordance with the provisions of Rule 25. If the
deceased party has no representative, any party may suggest
the death on the record, and proceedings shall then be had
as that court shall direct. . . .
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III. DISCUSSION
Weldon presents one question on certiorari: “[w]hether
the ICA gravely erred in holding that the Circuit Court erred in
granting Weldon’s Motion to Suppress because the police seized
Weldon without specific and articulable facts supporting
reasonable suspicion to believe he was committing a crime.”
As an initial matter, we note that it was after we had
accepted Weldon’s application for writ of certiorari that OPD
informed us that Weldon had passed away. Pursuant to HRAP Rule
43(a), we exercise our discretion to address the important
constitutional issues raised on certiorari.
We further conclude that because Weldon was seized
without reasonable suspicion that he was engaged in criminal
activity, his seizure was illegal. Because Weldon’s seizure was
illegal, the evidence obtained from that illegal seizure, i.e.,
the baton, is tainted and inadmissible at trial. This illegally-
obtained evidence must therefore be suppressed.
A. HRAP Rule 43(a)
Weldon passed away during the pendency of the State’s
appeal to the ICA, and this court was notified of his death after
we accepted his application for writ of certiorari. We later
denied OPD’s motion to substitute itself as Weldon’s personal
representative.
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If a party dies “while the proceeding is otherwise
pending in a Hawai#i appellate court,” HRAP Rule 43(a) permits,
by motion, the substitution of a personal representative of the
deceased party as a party. If a deceased party has no
representative, HRAP Rule 43(a) also provides that “any party may
suggest the death on the record, and proceedings shall then be
had as that [appellate] court shall direct.”
In State v. Makaila, 79 Hawai#i 40, 45, 897 P.2d 967,
972 (1995), we applied HRAP Rule 43(a) and determined that if a
criminal defendant dies pending appeal of a conviction, an
appellate court, in its discretion, may allow for substitution of
a proper party-defendant. We also stated, absent a motion for
substitution, that an appellate court may (1) dismiss the appeal
as moot, (2) vacate the judgment of conviction and dismiss all
related criminal proceedings, or (3) enter any other order as the
appellate court deems appropriate pursuant to HRAP Rule 43(a).
Id. We therefore vacated our earlier order dismissing the
deceased criminal defendant’s appeal to allow any party to move
to substitute a proper party-defendant. Id. at 46, 897 P.2d at
973.
Here, Weldon was never convicted of the crime for which
he was charged. Therefore, the specific facts in Makaila differ
from the facts of this case. Nevertheless, HRAP Rule 43(a),
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which applies to any proceeding pending in a Hawai#i appellate
court, remains applicable. According to HRAP Rule 43(a), when a
proper party representative is not substituted, we may dismiss an
appeal, vacate the ICA’s judgment on appeal, or enter any other
order we deem appropriate. See Makaila, 79 Hawai#i at 45, 897
P.2d at 972 (citing HRAP Rule 43(a)). We therefore exercise our
discretion to address the important constitutional issues raised
on certiorari. See State v. Burrell, 837 N.W.2d 459, 467 (Minn.
2013) (identifying public policy considerations which support the
continuation of a deceased criminal defendant’s appeal).
B. The police unlawfully seized Weldon, and therefore the
evidence from the unlawful seizure must be suppressed.
Pursuant to article I, section 7 of the Hawai#i
Constitution, the people have a right to be free from
unreasonable searches, seizures, and invasions of privacy. In
order to determine whether a person can be lawfully seized
without first obtaining a warrant, we analyze the following.
First, we determine whether the person was “seized”
within the meaning of the United States and Hawai#i
Constitutions. Second, if the person was seized, we determine
whether the seizure was lawful, i.e., whether the police could
have temporarily detained the individual because “they have a
reasonable suspicion based on specific and articulable facts that
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criminal activity is afoot.” Tominiko, 126 Hawai#i at 77, 266
P.3d at 1131. If the seizure was not supported by reasonable
suspicion, the seizure was unlawful, and any evidence obtained as
a result of the initial seizure is inadmissible at trial.
We conclude here that Weldon was seized without
reasonable suspicion that he was engaged in criminal activity.
Accordingly, the evidence discovered on the basis of that
unlawful seizure must be suppressed.
1. When the police approached Weldon and proceeded to
question him, they seized him within the meaning of
article I, section 7 of the Hawai#i Constitution.
As a threshold matter, Weldon was “seized” within the
meaning of article I, section 7 of the Hawai#i Constitution.
This court has stated that:
A person is seized if, given the totality of the
circumstances, a reasonable person would have believed that
he or she was not free to leave. Whether a reasonable
person would feel free to leave is determined under an
objective standard that this court reviews de novo. A
person is seized for purposes of article I, section 7 of the
Hawai#i Constitution, when a police officer approaches that
person for the express or implied purpose of investigating
him or her for possible criminal violations and begins to
ask for information.
Tominiko, 126 Hawai#i at 77, 266 P.3d at 1131 (citations and
quotations omitted). We examine whether a person is seized on a
case by case basis, keeping in mind that a person is seized “only
if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that [the person] was not
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free to leave.” State v. Quino, 74 Haw. 161, 169, 840 P.2d 358,
362 (1992).
We have previously held that an informal inquiry with a
person on the street in which there is no compulsion to cooperate
is not a seizure within the meaning of article I, section 7.
State v. Tsukiyama, 56 Haw. 8, 13, 525 P.2d 1099, 1103 (1974).
However, we have also held that when officers deliberately
initiate their encounter with a person for the specific purpose
of investigating a crime, and their questioning is “specifically
designed to elicit responses that would either vindicate or
implicate [the person],” officers have seized the individual
within the meaning of article I, section 7. Quino, 74 Haw. at
171-72, 840 P.2d at 363-64. The use of physical force is not
necessary to effect a seizure; rather, the test is whether “a
reasonable person in [the defendant’s] position would not have
believed that [the person] was free to ignore the officer’s
inquiries and walk away.” Id. at 173, 840 P.2d at 364.
Here, at 7:00 a.m., Officer Heyworth approached Weldon
in the course of a regular patrol and not through any specific
complaint. After observing discarded embers from a fire, strewn
cooked meat on the sand, and glass bottles, Officer Heyworth
approached Weldon, who was lying down at the time, to “see, you
know, if [these items] were his.” Officer Heyworth, in full
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police uniform, initiated a conversation and immediately
requested identification. By this point, Officer Wilson had also
arrived at the scene and had also approached Weldon. A third
police officer arrived shortly thereafter.
Based upon the totality of the circumstances, we
conclude that a reasonable person in Weldon’s position would not
feel free to ignore Officer Heyworth’s inquiries and walk away.
Even if Officer Heyworth never specifically asked Weldon whether
the items found in his vicinity were his, this court has
previously concluded that under certain circumstances, asking for
identification and information can rise to a seizure under
article I, section 7 if an officer approaches that person for the
express or implied purpose of investigating him for possible
criminal violations. See State v. Kearns, 75 Haw. 558, 568, 867
P.2d 903, 908 (1994). Here, the officers admitted that they
approached Weldon with the express purpose of investigating him
for possible criminal violations.
Additionally, when Officer Heyworth asked Weldon to
give his name and to show identification, at least two officers,
and likely three, had surrounded him. To a reasonable person in
Weldon’s position, this “show of authority” would make it
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difficult for the person to believe that the person was free to
ignore the officer’s inquiries and walk away.9
Finally, there is nothing in the record to indicate
that Weldon ever consented to the seizure. Even though Weldon
had eventually given his identification to the officers, this
court has held that “mere acquiescence to questioning, in and of
itself, is insufficient to establish consent to the seizure.”
Kearns, 75 Haw. at 571, 867 P.2d at 909. Based on the totality
of the circumstances, we conclude that Weldon was seized pursuant
to article I, section 7 of the Hawai#i Constitution.
2. Weldon’s seizure was not supported by reasonable
suspicion that he was engaged in criminal activity.
Generally, a seizure without a warrant is presumed
invalid unless the State proves that the seizure falls within an
exception to the warrant requirement of article I, section 7 of
the Hawai#i Constitution. State v. Heapy, 113 Hawai#i 283, 290,
151 P.3d 764, 771 (2007). One such exception is a temporary
investigative stop where an officer has “reasonable suspicion”
that the person stopped was engaged in criminal conduct. Kearns,
75 Haw. at 569, 867 P.2d at 908.
To justify an investigative stop, short of an arrest
based on probable cause, the police officer must be able to
9
As Justice Stewart once opined, “[e]xamples of circumstances that
might indicate a seizure, even where the person did not attempt to leave,
would be the threatening presence of several officers . . . .” United States
v. Mendenhall, 446 U.S. 544, 554 (1980) (Opinion of Stewart, J.).
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point to specific and articulable facts which, taken
together with rational inferences from those facts,
reasonably warrant that intrusion. The ultimate test in
these situations must be whether from these facts, measured
by an objective standard, a [person] of reasonable caution
would be warranted in believing that criminal activity was
afoot and that the action taken was appropriate.
Tominiko, 126 Hawai#i at 77-78, 266 P.3d at 1131-32 (emphasis and
quotations omitted) (quoting Barnes, 58 Haw. at 338, 568 P.2d at
1211). We have additionally stated that officers must have a
“particularized and objective” basis for suspecting that the
person seized has committed or is about to commit a crime. Id.
at 78, 266 P.3d at 1132. In other words, reasonable suspicion
must be based on “a suspicion that the particular individual
being stopped is engaged in wrongdoing.” State v. Uddipa, 3 Haw.
App. 415, 418, 651 P.2d 507, 510 (1982) (citing United States v.
Cortez, 449 U.S. 411, 417-18 (1981)).
Weldon argues that the officers here could not have
reasonably suspected that he was engaged in criminal activity.10
He cites this court’s decision in Tominiko as analogous to the
circumstances in his case.
10
In response to Weldon’s application, the State contends that
Weldon waived this argument because he failed to challenge the circuit court’s
specific conclusion that the officers had reasonable suspicion “to approach
[Weldon] and investigate.” The State notes that Weldon did not file a cross-
appeal challenging the circuit court’s conclusion.
However, Weldon specifically argued in his answering brief to the ICA
that the circuit court’s conclusion on this point was erroneous, he explained
in great detail that the officers did not have reasonable suspicion to
approach him in the first place, and he noted that the ICA could affirm the
circuit court’s order on other grounds. Therefore, we reject the State’s
waiver argument.
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In Tominiko, a police officer was called to address a
large gathering of people seen drinking beer and soda at an
intersection. 126 Hawai#i at 70, 266 P.3d at 1124. The group
eventually dispersed, and the defendant walked back to his car.
Id. The officer trailed the defendant and asked to see his
identification, but the defendant mumbled something, kept
walking, got into his car, and slowly began to drive away. Id.
at 72, 266 P.3d at 1126. The defendant drove seven feet before
stopping, which allowed the officer to approach the defendant’s
car window and observe empty beer bottles in the back of the
defendant’s car. Id. The defendant was later charged with
operating a vehicle under the influence of an intoxicant. Id. at
71, 266 P.3d at 1125. At trial, the officer testified that he
did not remember seeing the defendant with a beer bottle in his
hand. Id. at 72, 266 P.3d at 1126.
We concluded that on those facts, the police officer
did not have reasonable suspicion that the defendant was engaged
in criminal activity. Id. at 78, 266 P.3d at 1132. The officer
“admitted that he did not recall seeing [the defendant] drinking
beer or holding a beer bottle in his hand when he approached the
group. Additionally, [the officer] did not see [the defendant]
fighting or talking loud.” Id.
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Just as in Tominiko, the facts of this case demonstrate
that the officers did not have reasonable suspicion that Weldon
was engaged in criminal activity. The ICA noted that possessing
an open container of intoxicating liquor and littering are
crimes, and concluded that Weldon’s “close proximity to the open
beer bottles, strewn cooked meat, and discarded fire embers on
the beach constituted specific and articulable facts that
provided the police with a reasonable suspicion that criminal
activity involving Weldon was afoot.” However, nothing in the
police officers’ testimony reasonably ties Weldon to the items
that littered the sand around him. While Officer Heyworth
testified that the items were about five to six feet away from
Weldon, he also testified that the “discarded embers from a fire”
were not in the immediate area around Weldon. When Officer
Heyworth approached Weldon, he had been lying down. Weldon was
not eating or drinking and was not using drugs at the time that
he was approached. The glass bottles around Weldon were empty.
Moreover, there is nothing else to infer that Weldon
had at any time used the items in his vicinity, cooked the strewn
meat, or drank from the empty glass bottles. Officer Heyworth
testified that he did not see any plates or utensils, nor any
evidence of unopened beer bottles of the same variety around
Weldon. Accordingly, Officer Heyworth could not point to any
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specific, articulable fact indicating that Weldon was or had been
involved in any criminal activity. See Tominiko, 126 Hawai#i at
78, 266 P.3d at 1132.
Furthermore, “the mere act of avoiding confrontation
does not create an articulable suspicion [of criminal activity].”
Id. at 79, 266 P.3d at 1133. In Tominiko, we concluded that the
defendant’s actions in response to the officer asking for his
identification, i.e., “mumbl[ing] something, walk[ing] to his
car, and attempt[ing] to start it,” did not raise a reasonable
suspicion that he had committed a crime. Id. Here, even if
Weldon was slow to respond to Officer Heyworth’s request for
identification and “mumbled a lot” before eventually providing
Officer Heyworth with identification, this conduct similarly does
not raise reasonable suspicion that he had committed a crime.
“What facts are ‘specific’ and ‘articulable’ so as to
justify an investigative stop cannot be explicitly defined.”
Uddipa, 3 Haw. App. at 418, 651 P.2d at 510. Rather, “the
totality of the circumstances - the whole picture – must be taken
into account.” Id. On the record in this case, the totality of
the circumstances indicate that the police officers who stopped
Weldon lacked specific and articulable facts to support a
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reasonable suspicion that he was engaged in criminal activity.11
Without reasonable suspicion, the officers’ seizure of Weldon
violated article I, section 7 of the Hawai#i Constitution.
3. The baton was a fruit of an unlawful seizure, and must
be suppressed.
We prohibit the use of evidence at trial that comes to
light as a result of the exploitation of a previous illegal act
of the police. Tominiko, 126 Hawai#i at 81, 266 P.3d at 1135.
In determining whether evidence is tainted by such an illegal
act, this court has followed the standard laid out in the United
States Supreme Court’s decision in Wong Sun v. United States, 371
U.S. 471 (1963): “[a]dmissibility is determined by ascertaining
whether the evidence objected to as being the ‘fruit’ was
discovered or became known by the exploitation of the prior
illegality or by other means sufficiently distinguished as to
purge the later evidence of the initial taint.” Tominiko, 126
Hawai#i at 81, 266 P.3d at 1135 (emphasis omitted) (quoting State
v. Fukusaku, 85 Hawai#i 462, 475, 946 P.2d 32, 45 (1997)). In
other words, we ask, “[d]isregarding the prior illegality, would
the police nevertheless have discovered the evidence?” State v.
Trinque, 140 Hawai#i 269, 281, 400 P.3d 470, 482 (2017).
11
The circuit court therefore erred when it concluded the opposite
in its July 8, 2014 Order Granting Motion to Suppress.
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Here, Weldon’s initial seizure was unconstitutional
because the police officers did not have reasonable suspicion
that Weldon was engaged in criminal activity at the time that he
was approached. See Section III.B.2 supra. Therefore, Officer
Wilson’s subsequent seizure of Weldon’s backpack stemmed from
Weldon’s initial illegal seizure.12 Put differently, the police
would not have discovered the baton if not for Weldon’s initial
illegal seizure. Tominiko, 126 Hawai#i at 81, 266 P.3d at 1135.
“Evidence obtained after the initial stop is fruit of
the poisonous tree because it was discovered by exploiting [the
officers’] prior illegal seizure.” Id. We conclude that the
officers’ discovery of the baton is a fruit of the poisonous
tree, and therefore cannot be used at trial. The circuit court
correctly suppressed that evidence.
IV. CONCLUSION
We conclude that both the circuit court and the ICA
erred in determining that the police officers had reasonable
suspicion to approach Weldon. The officers could not point to
any specific facts indicating that the items found on the beach
in Weldon’s general vicinity were his. Thus, they did not have
12
Therefore, we need not decide whether the officers’ subsequent
seizure of Weldon’s backpack would otherwise be legal pursuant to a valid
weapons search.
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reasonable suspicion to believe that Weldon was involved in
criminal activity.
Weldon was unconstitutionally seized, and the evidence
obtained after the initial seizure must be suppressed because it
was discovered by exploiting that seizure. While the circuit
court erred in concluding that the officers had reasonable
suspicion to approach Weldon, the circuit court nevertheless
correctly suppressed evidence of the baton.
We therefore reverse the ICA’s May 24, 2018 judgment on
appeal and affirm the circuit court’s July 8, 2014 Findings of
Fact, Conclusions of Law and Order Granting Defendant’s Motion to
Suppress Evidence. Accordingly, for the reasons stated, the case
is dismissed with prejudice.
Alan J.T. Komagome /s/ Mark E. Recktenwald
Jon N. Ikenaga, and
Phyllis J. Hironaka, /s/ Paula A. Nakayama
for petitioner/defendant-
appellee /s/ Sabrina S. McKenna
Brian R. Vincent /s/ Richard W. Pollack
for respondent/plaintiff-
appellant /s/ Michael D. Wilson
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