NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAR-2022
07:47 AM
Dkt. 41 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
JORGE BAILON PASCUA LAFRADEZ,
also known as BAILON PASCUA LAFRADEZ,
Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant State of Hawai#i (State), appeals
from the Findings of Fact, Conclusions of Law (FOFs/COLs), and
Order Granting Defendant-Appellee Jorge Bailon Pascua Lafradez,
also known as, Bailon Pascua Lafradez's (Lafradez) Motion to
Suppress Evidence (Order Granting Motion to Suppress Evidence),
filed on May 11, 2021 by the Circuit Court of the First Circuit
(Circuit Court).1
Lafradez was charged via Felony Information with
Promoting a Dangerous Drug in the Second Degree. On May 3, 2021,
he filed a Motion to Suppress Evidence (Motion), which the
Circuit Court granted. The State timely appealed.
On appeal, the State contends that the Circuit Court
erred in: (1) finding in FOF 6 that "Lafradez's [vehicle] was
parked near the intersection of Auld Lane and Wong Lane;" (2)
concluding that Lafradez's vehicle was not in violation of
1
The Honorable Kevin A. Souza presided.
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Revised Ordinances of Honolulu (ROH) § 15-14.1(a)(3)2 and that
therefore the officer did not have reasonable suspicion to
approach the driver's window of the vehicle, challenging COLs 14,
18, 20, 29, and 31; and (3) suppressing all evidence of the bag
of crystal methamphetamine that the officer saw from his position
outside of the vehicle based on the Circuit Court's conclusions
that the officer did not have a reasonable suspicion to approach
the vehicle, and that the open view and plain view exceptions did
not apply, challenging COLs 23, 24, 26, 28, 31, and 32.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised, we resolve the
State's points of error as follows, and affirm.
The following evidence was adduced at the April 30,
2021 suppression hearing. On September 9, 2020, Officer
Alexander Watson (Officer Watson) approached a blue Kia (vehicle)
with Kia dealer plates parked on the edge of a T-intersection of
Auld Lane and Wong Lane to address a parking violation. See FOFs
6, 7, 8, and 9.3 The vehicle was not impeding traffic, and there
were no signs that prohibited parking in the area. FOFs 9 and
10. Upon approach, Officer Watson observed Lafradez and other
occupants through an open driver's seat window with no medical
grade face coverings. See FOFs 7, 8, and 14. While standing
outside of the vehicle, Officer Watson observed a clear
transparent "baggy" (baggy) between Lafradez's legs, which he
2
ROH § 15-14.1(a)(3)(Honolulu Supp. No. 30, 9-2017) states in
pertinent part:
Sec. 15-14.1 Stopping, standing or parking prohibited
in specified places—No signs required. (a) No person shall
stop, stand or park a vehicle, except when necessary to
avoid conflict with other traffic or in compliance with the
law or the directions of a police officer or traffic control
device, in any of the following places:
. . . .
(3) Within an intersection, along the edges or curbsides
around corners and in channelized areas of any two
intersecting streets . . . .
3
"It is well-established that . . . unchallenged findings of fact
are binding upon appellate courts." State v. Rodrigues, 145 Hawai#i 487, 497,
454 P.3d 428, 438 (2019) (citations omitted).
2
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recognized to be crystal methamphetamine. FOFs 17 and 19. At
the conclusion of the hearing, Lafradez argued that there was no
parking violation under ROH § 15-14.1(a)(3), and thus no
reasonable suspicion to validate Officer Watson's approach of the
vehicle to be able to observe the baggy in open or plain view.
The State argued that the Motion should be denied, because the
open view exception to the warrant requirement applied, and that
reasonable suspicion was not needed to justify the stop.
Further, the State argued that even if this was not an open view
case, there was nevertheless a parking violation and sufficient
articulable facts establishing reasonable suspicion for Officer
Watson to approach the vehicle and observe the baggy in plain
view.
(1) The State's contention that the Circuit Court erred
in FOF 6 that Lafradez's vehicle was parked "near," rather than
"within" the intersection, is without merit. FOF 6 states:
6. Both officers encountered [the vehicle] with 'Aloha
Kia' plates, which was parked near the intersection of
Auld Lane and Wong Lane.
(Emphasis added). The State argues that FOF 6 is clearly
erroneous because Officer Watson testified that the vehicle was
"parked within the intersection[.]"4 (Emphasis added).
4
Officer Watson testified that while on duty in his unmarked police
vehicle on September 9, 2020 at approximately 11:40 p.m., he came upon the
vehicle as follows:
Q [By State] And when you're in that area, did
you at some point stop your vehicle?
A [By Officer Watson] Yes.
Q And why did -- did you stop your vehicle?
A It's a blue Kia Sedona with Aloha Kia plates
parked within the intersection of I believe it was Auld
and Wong. So I stopped my vehicle to address that
parking violation.
. . . .
Q So in this T-intersection, can you describe
where the Kia Sedona vehicle was located in that T.
A So the vehicle was parked on Auld Lane on the
south or makai bound side of the road within the I guess
you would say prolongations of Wong Lane or what I would
define as the intersection, T-intersection, of Auld and
(continued...)
3
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We review findings of fact under the clearly erroneous
standard of review. State v. Lawson, 103 Hawai#i 11, 19, 78 P.3d
1159, 1167 (App. 2003) (citation omitted). A finding of fact is
clearly erroneous when: "(1) the record lacks substantial
evidence to support the finding, or (2) despite substantial
evidence in support of the finding, the appellate court is
nonetheless left with a definite and firm conviction that a
mistake has been made." Id.
Here, while the Circuit Court found that Officer Watson
was credible (FOF 1), Lafradez's Motion contested the factual
basis for the investigative stop and challenged whether any
parking violation had occurred. In COL 14 and in its oral
ruling, the Circuit Court explained that it had to independently
determine whether there was, or appeared to be, a parking
violation, rather than simply accepting the officer's claim of
such violation. In COL 14, the Circuit Court stated that it
"does not take Officer Watson at his word that there was a
traffic violation, when the vehicle was blocking the
intersection." In its oral ruling at the conclusion of the
hearing, the Circuit Court explained that under the law, it had
to determine whether Officer Watson's investigative stop was
valid under Terry v. Ohio, 392 U.S. 1 (1968):5
And so that's the standard here -- is not just
to simply take Officer Watson at his word that there was
a traffic violation, namely, that the Kia Sedona was
blocking the intersection, which is what he alleged the
traffic violation was, but for the Court to look at all
of the evidence submitted and to determine whether there
were specific and articulable facts that a reasonable
person would be warranted in believing that criminal
activity was afoot.
So in doing so, the Court doesn't only look at
Officer Watson's testimony. I look at all the evidence
that was submitted by the defense in this particular
4
(...continued)
Wong.
(Emphases added).
5
In Terry, the United States Supreme Court recognized "that a
police officer may in appropriate circumstances and in an appropriate manner
approach a person for purposes of investigating possibly criminal behavior
even though there is no probable cause to make an arrest." Terry, 392 U.S. at
22.
4
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case. I also look as a matter of law, as [Defense Counsel]
has correctly pointed out, to Revised Ordinances of Honolulu
Section 15-14.1(a)(3), which the Court will adopt as part
of its findings of fact in this particular case.
. . . .
. . . I look at Exhibits E –- or D, E, F, G, and H, it's
clear to this Court that indeed, as Officer Watson
testified, the Kia Sedona was parked alongside the curb, not
blocking the intersection, it was not parked on any of the
corners, and there were no specific prohibitions or signs
indicating there were prohibitions for the vehicle to be
parked in that particular area.
And so in looking at the test to determine whether
from the facts measured against an objective standard, did
Officer Watson have a reason to believe that criminal
activity was afoot such that the action he took was
appropriate, in light of Revised Ordinances Section 15-
14.1(a)(3) and the testimony and the evidence submitted to
the Court, the Court will find that Officer Watson did not
have reasonable suspicion or probable cause to approach the
vehicle to investigate a parking violation on September 9,
2020, at 11:40 p.m.
The Circuit Court found in unchallenged COL 16, which
is actually an FOF, that "the vehicle was not parked in the
middle of the intersection, but rather parked near or along the
curb on Auld Lane," and was "not impeding traffic, and it was not
on the corners of the T-intersection." COL 16. In unchallenged
COL 17, which is also an FOF, the Circuit Court found: "There
were no red markings or any 'No Parking' signs or other signs
where the vehicle was parked."
At a motion to suppress hearing, "[t]he trial court, as
the finder of fact, may draw reasonable and legitimate inferences
and deductions from the evidence," and it is the province of the
trial court "to assess the credibility of witnesses . . . and it
may accept or reject such testimony in whole or in part." State
v. Kaleohano, 99 Hawai#i 370, 376, 56 P.3d 138, 144 (2002)
(citation and internal quotation marks omitted). "Appellate
courts defer to the judge or jury as fact finder unless no
substantial evidence existed for their finding because the fact
finder is uniquely qualified to evaluate the credibility of
witnesses and to weigh the evidence." Wilton v. State, 116
Hawai#i 106, 119, 170 P.3d 357, 370 (2007) (citation omitted).
Here, the Circuit Court's factual finding, that
Lafradez's vehicle was "near" the intersection and not "within"
5
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it, was supported by COLs 16, 17, and Officer Watson's
testimony.6 The Circuit Court, as the fact finder, had the
prerogative to reject Officer Watson's testimony in part, even
while finding him credible. See Kaleohano, 99 Hawai#i at 376, 56
P.3d at 144. The Circuit Court weighed and considered all of the
evidence, assessed credibility, and drew reasonable and
legitimate inferences and deductions to arrive at its factual
finding that the vehicle was "near" the intersection and not
"within" it. See id.; Wilton, 116 Hawai#i at 119, 170 P.3d at
370. The record reflects that FOF 6 was supported by substantial
evidence and was not clearly erroneous. See Wilton, 116 Hawai#i
at 119, 170 P.3d at 370; Lawson, 103 Hawai#i at 19, 78 P.3d at
1167.
(2) The State contends that the Circuit Court erred by
concluding in COLs 14 and 187 that Lafradez's vehicle was not in
violation of ROH § 15-14.1(a)(3), and also erred in COLs 18, 20,
6
In its oral ruling, the Circuit Court referenced Officer Watson's
responses to defense counsel's cross-examination, as follows:
Court will note that [Defense Counsel] specifically
asked Officer Watson, Was the vehicle parked in the
middle of the intersection? He said no. The vehicle was
parked along -- was parked near or along the curb on Auld
Lane facing south.
[Defense Counsel] asked, Was it impeding traffic?
Officer Watson said, No, it was not impeding traffic.
[Defense Counsel] asked, Was it parked on the corners of the
T-intersection? Officer Watson said no. [Defense Counsel]
asked, Were there any red markings or any no-parking
signs where the vehicle was parked? Officer Watson said
no.
7
COLs 14 and 18 stated:
14. Therefore, the Court does not take Officer Watson at
his word that there was a traffic violation, when the
vehicle was blocking the intersection.
. . . .
18. Based upon the testimony of Officer Watson and the
evidence submitted, the Court finds that Officer
Watson did not have reasonable suspicion or probable
cause to approach the vehicle to investigate a parking
violation on September 9, 2020 at 11:40 p.m.
6
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29, and 31,8 that Officer Watson did not have reasonable
suspicion to approach the vehicle. This contention is without
merit.
A trial court's conclusions of law are freely
reviewable on appeal under the "right/wrong" standard of review.
Kaleohano, 99 Hawai#i at 375, 56 P.3d at 143. A COL that
presents mixed questions of fact and law is reviewed under the
clearly erroneous standard because the court's conclusions are
dependent on the facts and circumstances of each individual case.
State v. Rapozo, 123 Hawai#i 329, 336, 235 P.3d 325, 332 (2010)
(citation omitted).
As to COL 14, where the Circuit Court concluded that it
"does not take Officer Watson at his word that there was a
traffic violation," the Circuit Court correctly acknowledged its
duty as the fact finder as to this disputed fact. See discussion
supra. The State does not present any argument to the contrary.
As to COL 18, which contained the conclusion that
Officer Watson did not have reasonable suspicion or probable
cause to investigate a parking violation, the State argues the
Circuit Court was wrong, based on Hawaii Revised Statutes (HRS)
§§ 291C-1 (defining "intersection"), 291C-111 (parking
prohibitions in a T-shaped intersection) and a diagram in its
Opening Brief -- which the State claims all show that ROH § 15-
8
COLs 20, 29 and 31 stated:
20. Defendant was unlawfully seized within the meaning of
the Fourth Amendment at the time Officer Watson
approached him and looked into the vehicle.
. . . .
29. The Court finds that Officer Watson had no reasonable
suspicion or probable cause to approach the vehicle to
investigate the traffic infraction based on the
Court's analysis of the Revised Ordinances of
Honolulu. Therefore, the totality of the evidence
indicates that there was no reasonable suspicion or
probable cause to investigate the traffic violation.
. . . .
31. In the instant case, but for Officer Watson
approaching and seizing Defendant without probable
cause or reasonable suspicion, the resulting
contraband would not have been discovered.
7
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14.1(d)(3) prohibits parking anywhere within the "I" areas marked
on the diagram.9 The State argues that "the testimony of Officer
Watson and the photographs introduced into evidence by Lafradez
show that Lafradez was parked along the curb 'within' the top
part of the T-intersection as illustrated by the area marked 'I'
in the diagram." These arguments supra, citing to HRS §§ 291C-1,
291C-111(a) and utilizing a diagram, were not made below.
Instead, at the hearing and in its Memorandum in Opposition to
the motion, the State argued that the "open view" or,
alternatively, "plain view" exceptions applied to the seizure of
Lafradez because there was sufficient evidence to prove
reasonable suspicion for Officer Watson to approach the vehicle.
We do not consider the State's newly raised arguments relying on
HRS Chapter 291C statutes and on a diagram that is not part of
the record on appeal. See State v. Moses, 102 Hawai#i 449, 456,
77 P.3d 940, 947 (2003) ("As a general rule, if a party does not
raise an argument at trial, that argument will be deemed to have
been waived on appeal[.]"); State v. Hoglund, 71 Haw. 147, 150,
785 P.2d 1311, 1313 (1990) ("Generally, the failure to properly
raise an issue at the trial level precludes a party from raising
that issue on appeal.") (citation omitted).
COL 18's conclusion that there was no reasonable
suspicion or probable cause for Officer Watson to approach and
investigate the vehicle, is a mixed question of fact and law that
is supported by the Circuit Court's findings that include FOF 6
and COLs 16 and 17, discussed supra, and is not clearly
erroneous. See Rapozo, 123 Hawai#i at 336, 235 P.3d at 332.
COLs 20, 29, and 31 all explain and apply the Circuit Court's
conclusion that Lafradez was unlawfully seized because there was
no reasonable suspicion or probable cause to investigate a
traffic infraction, and that the contraband was discovered
because of the unlawful seizure. These COLs logically follow
from COL 18 and are not wrong. Nor does the State present
9
A diagram of the intersection appears on page 10, in the Argument
section of the Opening Brief. This diagram does not contain any record
references as required by Hawai#i Rules of Appellate Procedure Rule 28(b)(7),
and does not appear to be a part of the record. The State did not refer to or
introduce this diagram into evidence at the suppression hearing.
8
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specific argument as to why these particular COLs are wrong.
Therefore, the Circuit Court's conclusions that based on the
evidence presented, there was no violation of ROH § 15-
14.1(a)(3), and thus no reasonable suspicion justifying the
seizure, were not wrong. See Kaleohano, 99 Hawai#i at 375, 56
P.3d at 143.
(3) The State's final contention is that "[b]ecause
Officer Watson had a reasonable suspicion to approach the
[vehicle]," the Circuit Court erred in concluding in COLs 23, 24,
26, 28, 31 and 32,10 that the "open view or plain view exceptions
did not apply,"11 and the Circuit Court "erred in suppressing all
10
These COLs stated:
23. The Court finds that the open view exception does not
apply to the instant case as the officers were not
simply passersby on the sidewalk inadvertently observing
contraband.
24. But for Officer Watson approaching and standing
outside of the driver’s window on Auld Road, the area
where he observed the baggy was not something that was
knowingly exposed to the public.
. . . .
26. Therefore, the open view exception does not apply.
. . . .
28. The plain view exception does not apply to the instant
case.
. . . .
31. In the instant case, but for Officer Watson
approaching and seizing Defendant without probable
cause or reasonable suspicion, the resulting
contraband would not have been discovered.
32. Therefore, as no exceptions apply and Defendant was
seized without a warrant, the Court will order
suppression of the use of evidence at trial that comes
to light as a result of the exploitation of a previous
illegal act of the police. See State v. Tominiko, 126
Haw. 68, 266 P.3d 1122 (2011). Evidence of the baggy,
containing 4.091 grams of methamphetamine, and any
other items sought to be suppressed by the Defendant
is suppressed.
11
For the "open view" exception to apply, the officer's observation
must take place "from a non-intrusive vantage point." State v. Meyer, 78 Haw.
308, 313, 893 P.2d 159, 164 (1995) (citing State v. Kaaheena, 59 Haw. 23, 29,
575 P.2d 462, 467 (1978)). Here, Officer Watson's observation did not occur
from a non-intrusive vantage point because the observation occurred after
(continued...)
9
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evidence" of the baggy. The arguments supporting the State's
final contention of error are premised on the State's repeated
contention that Officer Watson had reasonable suspicion and the
seizure was justified –- a contention that we have already
rejected supra. Because the State's challenges to COLs 23, 24,
26, 28, 31 and 32 are all based on this rejected premise, they
are also without merit.
For the foregoing reasons, the Findings of Fact,
Conclusions of Law, and Order Granting Defendant-Appellee Jorge
Bailon Pascua Lafradez's Motion to Suppress Evidence, filed on
May 11, 2021 by the Circuit Court of the First Circuit, is
affirmed.
DATED: Honolulu, Hawai#i, March 31, 2022.
On the briefs:
/s/ Keith K. Hiraoka
Brian R. Vincent Associate Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellant /s/ Clyde J. Wadsworth
Associate Judge
Taryn R. Tomasa
Deputy Public Defender /s/ Karen T. Nakasone
for Defendant-Appellee Associate Judge
11
(...continued)
Lafradez had already been illegally seized; thus, the Circuit Court correctly
concluded that the "open view" exception did not apply in COLs 23, 24 and 26.
See Kaleohano, 99 Hawai#i at 375, 56 P.3d at 143. For the "plain view"
exception to apply, the officer's plain view observation must occur after an
intrusion and the intrusion must be justified. Meyer, 78 Haw. at 314-15, 893
P.2d at 165-66 (citation omitted). Here, Officer Watson's observation did not
occur after an intrusion that was justified, but rather occurred during an
unlawful seizure; thus, the Circuit Court correctly concluded that the "plain
view" exception did not apply in COL 28. See Kaleohano, 99 Hawai#i at 375, 56
P.3d at 143.
10