NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29535
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAYl
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STATE OF HAWAI‘I, Piaintiff-Appellee v.
ROBERT N. TOMINIKO, Defendant-Appellant mg
APPEAL FROM THE DlSTRICT COURT OF THE FlRST ClRCUlT
/ HONOLULU DIVISlON
(HPD TraffiC NO. lDTA-08-O8506)
MEMORANDUM OPINION
(By: Ginoza, J., with
Nakamura, C.J., concurring separately,
and Fujise, J., dissenting separately)
Defendant-Appellant Robert N. Tominiko (Tominiko)
appeals from a judgment entered on December 1, 2008 in the
District Court of the First Circuit, Honolulu Division (district
Tominiko was convicted of Operating a Vehicle Under the
in violation of Hawaii Revised
(Supp. 2008).
court).1
1nfluence of an Intoxicant (OVUII)
Statutes (HRS) § 291E-61(a)(1) and § 291E-61(a)(3)
On appeal, Tominiko raises two points of error:
(l) The prosecution's written and oral charges for
OVUII were fatally insufficient because they failed to allege the
essential element that Tominiko operated or assumed actual
physical control of a vehicle "upon a public way, street, road,
or highway."
(2) The district court erred when it denied a motion to
suppress, because under the totality of the circumstances the
stop of Tominiko was not justified by specific and articulable
facts that Tominiko was engaged in criminal activity.
I. Sufficiencv of the Charge
In State v. Wheeler, 121 HawaiH.383, 219 P.3d 1170
(2009), the HawaiH.Supreme Court recently held that under the
circumstances there, the State's failure to allege that Wheeler
1 The H0n0rable william Cardwell presided.
UB'H.£
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operated or assumed actual physical control of his vehicle "upon
a public way, street, road, or highway" rendered the charge
insufficient. There, the defendant immediately objected to the
sufficiency of the charge before the trial court. In the instant
case, Tominiko did not object to the charge at any point in the
district court proceedings and instead raises the issue for the
first time on appeal.
A. Due Process Concerns and the Question of Jurisdiction
As a threshold matter, under existing HawaFi case law,
insufficiency of a charge is addressed primarily as a due process
concern that implicates whether proper notice was given to the
defendant. However, some cases further address it as a matter of
basic jurisdiction. _
This is significant because under the cases addressing
the matter primarily as a due process concern (i.e., the
accused's right to be informed of the nature and cause of the
accusation),2 an inquiry beyond the specific language of the
charge may be appropriate, especially where the sufficiency of
the charge is raised for the first time on appeal. §§§ State v.
Stan's Contracting, Inc., 111 Hawafi 17, 34, 137 P.3d 331, 348
(2006) ("An insufficient indictment can be cured."); State v.
Sprattling, 99 HawaFi 3l2, 3l8, 55 P.3d 276, 282 (2002) ("[I]n
Motta this court adopted a rule (hereinafter the 'Motta/Wells
post-conviction liberal construction standard'), which
essentially prescribes a presumption of validity on indictments
that are challenged subsequent to a conviction.") (citation
omitted); State v. Merino, 81 Hawafi 198, 915 P.2d 672 (1996);
State v. Wells, 78 Hawafi 373, 894 P.2d 70 (1995) (liberal
construction standard inapplicable where alleged deficiency in
the charge was raised by timely motion); State v. Israel, 78
2 Article I, section 14 of the HawaFi C0nstitution states, in relevant
part: "[i]n all criminal prosecutions, the accused shall enjoy the right .
to be informed of the nature and cause of the accusation". Haw. Const. art.
I, § l4.
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Hawai‘i 66, 70, 890 P.2d 303, 307`(1995) ("In analyzing whether a
defendant's article I, section 14 right to be informed has been
violated, however, we are not confined to an examination of the
charge. On the contrary . . . 'we must look to all of the
information supplied to him [or her] by the State to the point
where the court passes upon the contention that the right has
been violated.'") (quoting State v. Treat, 67 Haw. 119, 120, 680
P.2d 250, 251 (l984)); State V. ElliOtt, 77 HaWafi 309, 3l2, 884
P.2d 372, 375 (1994)(applying liberal construction standard and
noting that "[o]ne way in which an otherwise deficient count can
be reasonably construed to charge a crime is by examination of
the charge as a whole."); State v. Motta, 66 Haw. 89, 91, 657
P.2d 1019, 1020 (1983) (under the liberal construction standard
adopted for post-conviction challenges to indictments, conviction
on a defective indictment will not be reversed "unless the
defendant can show prejudice or that the indictment cannot within
reason be construed to charge a crime").
To the contrary, in State v. Cummings, 101 Hawafi 139,
63 P.3d 1109 (2003), sufficiency of the charge was addressed as a
matter of substantive jurisdiction and the Hawafi Supreme Court
held that no further inquiry or analysis was relevant beyond the
charge itself because a defective charge cannot be waived, nor
can it be deemed harmless. In Cummings, where the indictment was
timely challenged before the trial court, the court ruled that
"reversal of a conviction obtained on such a defective accusation
does not require a showing of prejudice." 101 HawaiH at 143, 63
P.3d at 1113. The court concluded that:
This is because a defect in a complaint is not one of mere
form, which is waivable, nor simply one of notice, which may
be deemed harmless if a defendant was actually aware of the
nature of the accusation against him or her, but, rather, is
one of substantive subject matter jurisdiction, "which may
not be waived or dispensed with," see Jendrusch, 58 Hawf at
281, 567 P.2d at 1244, and that is per se prejudicial, see
Motta, 66 Haw. at 91, 657 P.2d at 1020 (quoting United
State$ V. Thompson, 356 P.2d 2l6, 226 (21'16. Cir. l965)).
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Id.3 See also, TerritorV v. Goto, 27 Haw. 65, 102-103, 1923 WL
2749 (Haw. Terr. 1923) (Peters, C.J., concurring)("Failure of an
indictment to state facts sufficient to constitute an offense
against the law is jurisdictional and is available to the
defendant at any time.").
Notwithstanding the Cummings decision that a defective
charge undermines jurisdiction, the court in Cummings did not
overrule Motta and its progeny. Further, most recently, Wheeler
reconfirmed the view that the Motta[Wells post-conviction liberal
standard applies when an objection to a defective charge is not
timely raised in the trial court. The Wheeler court stated:
[T]his court has applied different principles depending on
whether or not an objection was timely raised in the trial
court. Under the "Motta/Wells post-conviction liberal
construction rule," we liberally construe charges challenged
for the first time on appeal. . . . Under this approach,
there is a "presumption of validity," . . . for charges
challenged subsequent to a conviction. In those
circumstances, this court will "not reverse a conviction
based upon a defective indictment [or complaint] unless the
defendant can show prejudice or that the indictment [or
complaint] cannot within reason be construed to charge a
crime." . . . . However, the rule does not apply when
reviewing timely motions challenging the sufficiency of an
indictment.
121 Hawafi at 399-400, 219 P.3d at 1186-87 (citations omitted
and emphasis added).
Thus, where a defective charge is challenged for the
first time on appeal, the charge is presumed valid and the
Motta[Wells liberal construction standard is applied.
3 For this ruling, the Cummings court relied on State v. Jendrusch, 58
Haw. 279, 567 P.2d 1242 (l977) and State V. Motta, 66 Haw. 89, 657 P.2d 1019
(1983). While Jendrusch states that an insufficient charge "would constitute
a denial of due process," which "may not be waived or dispensed with," and
"the defect is ground for reversal, even when raised for the first time on
appeal,“ 58 Haw. at 281, 567 P.2d at 1244, Motta, which was decided after
Jendrusch, adopted the rule of liberally construing indictments challenged for
the first time on appeal. The Motta court explained that its decision was not
incompatible with Jendrusch because, "[u]sing the language of these liberal
construction cases we would still find that the charge in Jendrusch was 'so
obviously defective that by no reasonable construction can it be said to
charge the offense for which conviction was had.'" Motta, 66 Haw. at 92, 657
P.2d at 1021 (citation omitted).
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B. Application of the Motta/wells Liberal Construction
Standard
Under the Motta[Wells liberal construction standard,
the validity of the charge is presumed and the conviction will
not be reversed unless the defendant can show: (a) prejudice; or
(b) that the charge cannot within reason be construed to charge a
crime. 7
Tominiko does not assert that he has been prejudiced by
the defective charge.' Rather, he contends that he need not show
» prejudice, even where the liberal construction standard is
applied, because a defective charge is always fatal and the
district court lacked jurisdiction to preside over the case. As
set forth above, a conviction is not automatically reversed on
jurisdictional grounds where the defendant failed to timely
challenge a defective charge. Instead, the Motta[Wells liberal
construction standard applies, under which prejudice to the
defendant is a factor. §§§ Wheeler, 121 Hawaid at 400, 219 P.3d
at 1187. Tominiko has thus failed to make any showing of
prejudice.4
Tominiko also fails to present any argument that the
Complaint or oral charge cannot reasonably be construed to charge
a crime. In deciding this issue, it is proper to "consider other
information in addition to the charge that may have been provided
to the defendant during the course of the case up until the time
defendant objected to the sufficiency of the charges against
him." Wheeler, 121 Hawafi at 396, 219 P.3d at 1183. §§§ al§Q
Elliott, 77 Hawaiii at 312, 884 P.2d at 375 (court examined the
charge as a whole); State v. Schroeder, 76 HawaiU.517, 530, 880
P.2d 192, 205 (1994) (information from one count was reasonably
construed as providing sufficient information for another count,
with court noting both counts alleged offenses committed on same
" In addition, while not necessarily dispositive on the question of
prejudice, the record reflects that upon being given the oral charge, 'I‘ominiko
was asked if he understood the charge and he affirmatively responded "yes."
5
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date); Treat, 67 Haw. 119, 680 P.2d 250 (grand jury transcripts
informed defendant of the nature and cause of the accusation
against him). Considering the information provided to Tominiko
in the entirety of the written Complaint, as well as information
in the facts stipulated for trial, the Complaint and oral charge
can reasonably be construed to charge a crime.
In the three page Complaint, the first paragraph
charges that on August 2, 2008, Tominiko committed the offense of
OVUII but does not allege that he was driving a vehicle upon a
public way, street, road, or highway. However, the third
paragraph of the Complaint, alleging a charge for Driving Without
Motor Vehicle Insurance on the same date as the OVUII charge
(August 2, 2008), does allege that Tominiko "did operate or use a
motor vehicle upon a public street, road, or highway of the State
of HawaiUH" Because each of these paragraphs state that the
events occurred "[o]n or about the 2m day of August, 2008, in
the City and County of Honolulu, State of Hawafi," it is 7
reasonable to construe that they arise from the same event. §§§
Schroeder; Elliott.
Additionally, for the trial, Tominiko stipulated into
evidence the facts in the police report. The police report
states the "PLACE OF OFFENSE" for the OVUII charge as "AHONUI
ST/N. SCHOOL ST HONOLULU, HI 96819." The police report also
states that the vehicle operated by Tominiko was "parked on the
right side of Ahonui St. about 20 feet from N. School St.", and
that while being asked for his identification Tominiko got in his
car, started to drive off slowly, but "had to stop, due to
another vehicle traveling in the opposite direction which had to
stop in front of his car due to traffic congestion." From the
stipulated facts in the police report, it can be reasonably
construed that the OVUII offense occurred on a public street or
road,
Based on the above, Tominiko has not shown prejudice
arising from the defective charge, and the Complaint and oral
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charge can reasonably be construed to charge a crime. Therefore,
under the Motta[Wells liberal construction standard, Tominiko's
conviction will not be reversed due to the insufficiency of the
OVUIl charge.
lI. Motion to Suppress
Tominiko also contends that the district court erred in
jdenying his motion to suppress evidence, which was grounded on
the argument that the responding police officer did not have
reasonable suspicion to stop and detain Tominiko.
A. Standard of Review
On appeal, a de novo standard of review applies to a
trial court's ruling on a motion to suppress evidence,
A [circuit] court's ruling on a motion to suppress evidence
is reviewed de novo to determine whether the ruling was
"right" or "wrong." State v. Edwards, 96 HawaFi 224, 231,
30 P.3d 238, 245 (200l) (Citing State V. JenkinS, 93 HawaFi
87, 100, 997 P.2d 13, 26 (2000)). The proponent of the
motion to suppress has the burden of establishing, by a
preponderance of the evidence, that the statements or items
sought to be excluded were unlawfully secured and that his
or her right to be free from unreasonable searches or
seizures was violated under the fourth amendment to the
United States Constitution and article I, section 7 of the
Hawafi constitucion. see stare v. Wilson, 92 HawaFi 45, 43,
987 P.2d 268, 271 (1999) (citations omitted).
State v. Estabillio, 121 HawaiH.261, 269, 218 P.3d 749, 757
(2009) (quoting State v. Kaleohano, 99 Hawaid 370, 375, 56 P.3d
138, 143 (2002)).
Evidence at both the suppression hearing and the trial
are considered. State v. Sanford, 97 Hawafi 247, 251 n.8, 35
P.3d 764, 768 n.8 (App. 2001); State v. Nakachi, 7 Haw. App. 28,
33 n.7, 742 P.2d 388, 392 n.7 (l987); State V. Uddipa, 3 Haw.
App. 415, 416-17, 651 P.2d 507, 509 (1982). Further, because the
State prevailed below on the motion to suppress, any factual_
disputes are reviewed in a light favorable to the prosecution.
In Nakachi, this Court stated:
when reviewing this issue, we consider all the evidence
received at the motion to suppress hearing and at the trial.
State V. Uddipa, 3 HaW.App. 415, 651 P.2d 507 (19B2);
3 Wright, Federal Practice and Procedure: Criminal 2d § 678
(1982). Moreover, we view the factual disputes in the record
in a light favorable to the party that prevailed on the
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motion to suppress. See 3 Wright, Federal Practice and
Procedure: Criminal 2d § 678 (1982) .
7 Haw. App. at 33 n.7, 742 P.2d at 392 n.7.
B. District Court ProceedinQs
The only witness at the suppression hearing was Officer
Antwan Stuart. Officer Stuart testified that on August 2, 2008,
around midnight, he was sent via Honolulu Police Department
dispatch to the intersection of Ahonui and School Streets in
response to "a call of about 15 people arguing." When he
_arrived, he testified that he saw about 15 to 20 people standing
around eating and drinking, including drinking beer. Officer
Stuart testified that he saw "some green bottle Heinekens.“
According to the police report, which was stipulated into
evidence at the trial, the group was standing around an Isuzu
Trooper. Upon Officer Stuart's arrival the group started
grabbing things and leaving immediately.
When he first arrived, Officer Stuart was across the
street about 20 feet from the group and could hear people talking
loudly but could not determine if there was an argument. When he
approached the group, Officer Stuart testified he did not recall
seeing Tominiko holding anything and did not recollect him
talking loudly.
Tominiko started walking towards the Isuzu Trooper and,1
because Tominiko was the only person that didn't leave in-a
hurry, Officer Stuart asked for his identification "to
investigate what was going on over there, if indeed there was
a[n] argument or if there was a fight" and also because Officer
Stuart testified "I've known that that area is -- a lot of people
like to drink over there." ln response to Officer Stuart's
request for his identification, Tominiko "mumbled something buty
then kept walking and got into the car".v
Officer Stuart followed Tominiko to the Isuzu Trooper'
and asked him to get out of the vehicle. Instead, Tominiko
started the vehicle and started to drive slowly off, at which
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point Officer Stuart "yelled" at Tominiko to turn off the vehicle
and to show his identification, After driving "about another
seven feet or so," Tominiko was forced to stop because he didn't
have enough room to get by another vehicle that was traveling in
the opposite direction.
After Tominiko's vehicle came to its final resting
spot, Officer Stuart approached from the rear driver's side and
noticed empty beer bottles in the back seat. Tominiko was
subsequently arrested and charged with, inter alia, OVUII. At
the suppression hearing, the district court ruled that Officer
Stuart had reasonable suspicion to stop Tominiko, and further
that "once defendant refused to comply with [Officer Stuart's]
simple request for identification, the officer had the further'
right to pursue the defendant and stop him."
C. There Was an Investigative Stop Based On Reasonable
Suspicion
Tominiko argues that the district court erred in
denying his suppression motion because: (a) Officer Stuart's
conduct amounted to a seizure of Tominiko; and (b) the seizure
was not justified.
"[A] person is 'seized' in the constitutional sense if,
from an objective standpoint and given the totality of the
circumstances, a reasonable person would have believed that he or
she was not free to leave." State v. Trainor, 83 HawaiU 250,
256, 925 P.2d 818, 824 (1996); State v. TsukiVama, 56 Haw. 8, 525
P.2d 1099 (1974). "[A] person is seized, for purposes of article
I, section 7 of the HawaFi 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." State v. Kearns, 75 Haw. 558,
567, 867 P.2d 903, 907 (1994).
For investigatory stops, Hawaii has adopted the
principles set forth in Terry v. Ohio, 392 U.S. 1 (1968). 'That
is, the police may "temporarily detain an individual if they have
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a reasonable suspicion based on specific and articulable facts
that criminal activity is afoot." Kearns, 75 Haw. at 569, 867
P-2d at 908 (1994).
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 together with
rational inferences from those facts, reasonably warrant
that intrusion." Terry v. Ohio, supra, at 21. The ultimate
test in these situations must be whether from these facts,
measured by an objective standard, a man of reasonable
caution would be warranted in believing that criminal
activity was afoot and that the action taken was
appropriate.
State v. Barnes, 58 Haw. 333, 338, 568 P.2d l207, 1211 (1977).
See also State v. Madamba, 62 Haw. 453, 456, 617 P.2d 76, 78
(1980); State v. POwell, 61 Haw. 3l6, 321-22, 603 P.2d 143, 147-
48 (1979). In deciding whether there is reasonable suspicion for
an investigatory stop, the totality of the circumstances is
considered. State v. Spillner, 116 Hawafi 351, 357, 173 P.3d
498, 504 (2007). d
Tominiko contends that he was improperly seized,
particularly after he was pursued by Officer Stuart. Given the
totality of the circumstances, a seizure clearly occurred when
Officer Stuart followed Tominiko to his vehicle, asked him to get
out and, as Tominiko started to drive away, Officer Stuart yelled
at Tominiko to stop. Unlike in Tsukiyama, where an officer's
request for identification was not deemed a seizure because the
officer "did not order the defendant to get it or demand that he
get it," 56 Haw. at 12, 525 P.2d at 1102'(emphasis in original),°
Officer Stuart's conduct here was an order or demand and, in the
totality of the circumstances, a reasonable person would not
believe he was free to leave. Although Tominiko did in fact
continue his attempt to leave, an objective test is applied.
Notwithstanding that a seizure did occur, Officer
Stuart had reasonable suspicion sufficient to support an
investigatory stop. Although Tominiko contends the anonymous
call of about 15 people arguing "lacked sufficient indicia of
reliability to provide a reasonable and articulable suspicion,"
/
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there was additional information observed by Officer Stuart at
the scene, consistent with the complaint of about 15 people
arguing, and which provided even further basis for reasonable
suspicion that criminal activity was afoot. The record does not
support Tominiko's assertion that, "[w]hen Officer Stuart reached
the scene, there was simply nothing to suggest a crime had been
committed and that Mr. Tominiko was the perpetrator." To the
contrary, there had been the call to police of about 15 people
arguing at that location; Tominiko was among the group of
individuals at that location; it was midnight; the group was
standing around the Isuzu Trooper that Tominiko would attempt to
drive away; the vehicle and the group were located by the
intersection of two public streets; some members of the group
were observed talking loudly and drinking beer; and this was an
area where Officer Stuart knew people liked to drink.
Based on the totality of the circumstances at this
point, there are specific and articulable facts to support
reasonable suspicion of criminal activity afoot, including
disorderly conduct and possession of unsealed containers of
intoxicating liquor on a public street.5 Although Officer Stuart
5 HRS § 711-1101 provides, in part:
(1) A person commits the offense of disorderly conduct if, with
intent to cause physical inconvenience or alarm by a member or
members of the public, or recklessly creating a risk thereof, the
person:
(a) Engages in fighting or threatening, or in violent or
tumultuous behavior; or
(b) Makes unreasonable noise; or
(2) Noise is unreasonable, within the meaning of subsection
(1)(b), if considering the nature and purpose of the person's
conduct and the circumstances known to the person, including the
nature of the location and the time of the day or night, the
person's conduct involves a gross deviation from the standard of
conduct that a law-abiding citizen would follow in the same `
situation;
HRS § 711-1101 (Supp. 2009) .
(continued...)
ll
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did not recall seeing Tominiko with anything in his hands (i.e.
beer) or see him argue, such facts would approach or rise to the
level of probable cause for an arrest, which is a higher standard
than reasonable suspicion. In addressing reasonable suspicion
for an investigatory stop, the HawaiH Supreme Court has
favorably quoted language from the United States Supreme Court
that "the likelihood of criminal activity need not rise to the
level of probable cause, and it falls considerably short of
satisfying a preponderance of the evidence standard." State v.
Spillner, 116 HaWafi 351, 358, 173 P.3d 498, 505 (2007) (quoting
United States v. Arvizu, 534 U.S. 266, 273-74 (2002)). Moreover,
“[a] determination that reasonable suspicion exists ... need not
rule out the possibility of innocent conduct." Spillner, 116
HawaFi at 358, 173 P.3d at 505 (quoting Arvizu, 534 U.S. at
277).
Adaitieheily, eemhihea with the feete eet forth eheve
and under the circumstances of this case, Tominiko's effort to
leave the scene was an added factor supporting reasonable
suspicion. In addressing the higher standard of probable cause,
the Hawafi Supreme Court has noted: "although not dispositive,
flight from the police is a factor which may support a finding of
probable cause." State v. Melear, 63 Haw. 488, 494, 630 P.2d
619, 625 (1981) (citing Sibron v. New York, 392 U.S. 40, 66-67
(1968); United States v. Minor, 382 F. Supp. 203, n.1 (D. Haw.
1974); Franklin V. United StateS, 382 A.2d 20 (D.C. App. l978)).
Similarly, for investigatory stops, other courts have held that
flight alone does not create reasonable suspicion, but it could
be a factor when combined with other circumstances. See State v.
5(...continued)
Revised Ordinances of Honolulu, § 40-1.2(a) provides in pertinent part
that "[n]o person shall possess, other than in a container in the
manufacturer's sealed condition, intoxicating liquor on any street or
sidewalk".
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PineirO, 853 A.2d 887, 895 (N.J. 2004); State V. Wright, 752 A.2d
1147 (Conn. App. 2000). Tominiko's efforts to enter his vehicle
and drive away added to the already existing circumstances in
‘ this case.‘
To c1arify, simply refusing a police officer's request
for identification is not enough, in and of itself, to justify an
investigatory stop. To the extent the district court's ruling
suggested as such, it would be incorrect. However, where as in
this case there are other factors that also support reasonable
suspicion, flight can be considered in the totality of the
circumstances.
Fina1ly, even if there was an improper seizure at the
point Officer Stuart asked Tominiko to exit or to stop his car,
there were no fruits from such seizure. Rather, Tominiko
continued on for another seven feet until he was forced to stop
by another vehicle driving in the opposite direction. At that
point, Officer Stuart caught up with Tominiko's vehicle and while
approaching the rear driver's side observed the empty beer
bottles on the back seat. lt was the other vehicle which
prevented Tominiko from leaving, not the demands of Officer
Stuart, and it was from that point that the empty beer bottles
were observed and later that Officer Stuart and another
responding officer smelled alcohol on Tominiko's breath.
5 Tominiko relies on State v. Heapy, 113 HawaiU.283, 151 P.3d 764
(2007) in arguing that his efforts to avoid Officer Stuart could not be a
basis for the investigatory stop. In Heapy, a vehicle stop was deemed
improper because the only basis for suspicion was the defendant's attempt to
avoid a sobriety checkpoint. Here, as noted above, there are multiple
additional factors other than just Tominiko trying to avoid Officer Stuart and
thus Heapy is distinguishable.
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Based on all of the above, the district court did not
err in denying Tominiko's motion to suppress.
The judgment entered on December 1, 2008 is affirmed.
DATED= Honolulu, Hewei‘i, Juhe 30, 2010.
On the briefs:
John M. Tonaki
Public Defender
Craig W. Jerome
Deputy Public Defender
for Defendant-Appellant
Peter B. Carlisle
Prosecuting Attorney
Brian R. Vincent
Deputy Prosecuting Attorney
for Plaintiff-Appellee
14
颻w `
Associate Ju ge