State v. Tominiko

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Electronically Filed
Supreme Court
SCWC-29535
26-AUG-2011
01:56 PM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I,
Respondent-Plaintiff-Appellee,

vs.

ROBERT N. TOMINIKO,
Petitioner-Defendant-Appellant.

SCWC-29535

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 29535; HPD TRAFFIC NO. 1DTA-08-08506)

AUGUST 26, 2011

RECKTENWALD, C.J., NAKAYAMA, AND DUFFY, JJ.,
CIRCUIT JUDGE AYABE, ASSIGNED BY REASON OF VACANCY,
WITH ACOBA, J., CONCURRING AND DISSENTING SEPARATELY

OPINION OF THE COURT BY COURT NAKAYAMA, J.

Petitioner-Defendant-Appellant Robert N. Tominiko

(“Tominiko”) asks us to consider whether he was lawfully detained

and subsequently charged with operating a vehicle under the

influence of an intoxicant. The facts presented at trial show

that Tominiko was near an intersection with a gathering of people

who were drinking beer and soda. Upon receipt of a complaint, a
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police officer arrived but did not see Tominiko drinking beer.

The group dispersed, and Tominiko walked slowly to his car. The

officer asked to see his identification, but Tominiko continued

walking to his car and got in. When the officer asked Tominiko

to exit his vehicle, Tominiko drove away slowly. The officer

chased Tominiko and told him to stop driving but Tominiko drove

seven feet before being stopped by a vehicle traveling in the

opposite direction. The officer then caught up with Tominiko,

and, while approaching Tominiko’s vehicle, noticed beer bottles

in Tominiko’s car. Tominiko was subsequently charged in part

with Operating a Vehicle Under the Influence of an Intoxicant

(“OVUII”) and Driving Without Motor Vehicle Insurance. The

Driving Without Motor Vehicle Insurance charge contained the

allegation that the conduct occurred on a public roadway, but the

OVUII charge did not. The District Court of the First Circuit

(“district court”) convicted Tominiko of OVUII, and he appealed.

In his application for writ of certiorari, Tominiko presents the

following questions: 1) “Whether the [Intermediate Court of

Appeals (“ICA”)] gravely erred in concluding that Tominiko’s

conviction would not be reversed due to the insufficiency of the

[OVUII] charge[;]” and 2) “Whether the ICA gravely erred in

concluding that the trial court did not err in denying Tominiko’s

motion to suppress under the totality of the circumstances in

this case.” We hold that: 1) the charge was not insufficient

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under the liberal construction standard because, when reading the

charge as a whole, it can be reasonably construed to charge a

crime; and 2) Tominiko was subjected to an illegal seizure and

the evidence obtained as a result of that seizure must be

suppressed.

I. BACKGROUND

A. Factual and Procedural Background

On August 13, 2008, the State of Hawai#i (“the

prosecution”) charged Tominiko with: 1) OVUII in violation of

Hawai#i Revised Statutes (HRS) §§ 291E-61(a)(1) & (a)(3) (Supp.

2009);1 2) Operating a Vehicle After License and Privilege Have

Been Suspended or Revoked for OVUII in violation of HRS § 291E-

62(a)(1) & (a)(2) (2007);2 and 3) Driving Without Motor Vehicle

1
HRS § 291E-61 provides in relevant part:

(a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:

(1) While under the influence of alcohol in an
amount sufficient to impair the person’s normal mental
faculties or ability to care for the person and guard
against casualty; [or]

* * * *

(3) With .08 or more grams of alcohol per two
hundred ten liters of breath[.]

2
HRS § 291E-62(a) provides in relevant part:

(a) No person whose license and privilege to operate a
vehicle have been revoked, suspended, or otherwise
restricted pursuant to this section or to part III or
section 291E-61 or 291E-61.5, or to part VII or part XIV of
chapter 286 or section 200-81, 291-4, 291-4.4, 291-4.5, or
continue...

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Insurance, in violation of HRS § 431:10C-104(a) (2005).3 The

complaint read as follows:
(08287580) On or about the 2nd day of August, 2008, in
the City and County of Honolulu, State of Hawaii, ROBERT
TOMINIKO did operate or assume actual physical control of a
vehicle while under the influence of alcohol in an amount
sufficient to impair his normal mental faculties or ability
to care for himself and guard against casualty; and/or did
operate or assume actual physical control of a vehicle with
.08 or more grams of alcohol per two hundred ten liters of
breath, thereby committing the offense of Operating a
Vehicle Under the Influence of an Intoxicant, in violation
of Section 291E-61(a)(1) and/or (a)(3) of the Hawaii Revised
Statutes. ROBERT TOMINIKO is subject to sentencing as a
first offender in accordance with Section 291E-61(b)(1) of
the Hawaii Revised Statutes, and/or ROBERT TOMINIKO is
subject to sentencing in accordance with Section 291E-
61(b)(2) of the Hawaii Revised Statutes, where ROBERT
TOMINIKO committed the instant offense as a highly
intoxicated driver, as a first offense.
(08287582) On or about the 2nd day of August, 2008, in
the City and County of Honolulu, State of Hawaii, ROBERT
TOMINIKO, a person whose license and privilege to operate a
vehicle had been revoked, suspended, or otherwise restricted
pursuant to Section 291E-62 or to Part III of Chapter 291E
or Section 291E-61, or 291E-61.5, or to Part VII or Part XIV
of Chapter 286 or Section 200-81, 291-4, 291-4.4, 291-4.5,
or 291-7 of the Hawaii Revised Statutes as those provisions
were in effect on December 31, 2001, did operate or assume
actual physical control of any vehicle in violation of any
restrictions placed on his license, and/or while his license
or privilege to operate a vehicle remained suspended or

2
...continue
291-7 as those provisions were in effect on December 31,
2001, shall operate or assume actual physical control of any
vehicle:

(1) In violation of any restrictions placed on
the person’s license; or

(2) While the person’s license or privilege to
operate a vehicle remains suspended or revoked.

3
HRS § 431:10C-104(a) provides:

(a) Except as provided in section 431:10C-105, no
person shall operate or use a motor vehicle upon any public
street, road, or highway of this State at any time unless
such motor vehicle is insured at all times under a motor
vehicle insurance policy.

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revoked, thereby committing the offense of Operating a
Vehicle After License And Privilege Have Been Suspended or
Revoked for Operating a Vehicle Under the Influence of An
Intoxicant in violation of Section 291E-62(a)(1) and/or
(a)(2) of the Hawaii Revised Statutes. ROBERT TOMINIKO is
subject to sentencing as a first offender in accordance with
Section 291E-62(b)(1) of the Hawaii Revised Statutes.
(08282586) On or about the 2nd day of August, 2008, in
the City and County of Honolulu State of Hawaii, ROBERT
TOMINIKO did operate or use a motor vehicle upon a public
street, road, or highway of the State of Hawaii at a time
when such motor vehicle was not insured under a motor
vehicle insurance policy, thereby committing the offense of
Driving Without Motor Vehicle Insurance, in violation of
Section 431:10C-104(a) of the Hawaii Revised Statutes.
ROBERT TOMINIKO is subject to sentencing as a first offender
in accordance with Section 431:10C-117(a) of the Hawaii
Revised Statutes.

(Some Emphasis Added.)

The latter two charges were dismissed at trial.

Tominiko did not object to the charge or move to dismiss it at

any point during the district court’s proceedings. State v.

Tominiko, No. 29535 at 2 (App. June 30, 2010) (mem.) (lead

opinion).

On December 1, 2008, Tominiko orally moved to suppress

evidence because the police officer did not have reasonable

suspicion to stop Tominiko.

At the hearing on the motion to suppress, Officer

Antwan Stuart (“Officer Stuart”) testified that he was on duty at

around midnight on the night in question, when he was dispatched

to investigate a report that a group of people was arguing at an

intersection. When he arrived, he saw approximately fifteen or

twenty people drinking beer and soda, and eating. Members of the

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group started picking up items, and running or walking away

quickly. Tominiko started walking towards his vehicle, which was

the only vehicle parked in the area. Officer Stuart asked for

Tominiko’s identification because Tominiko “was the only person

that didn’t leave in a hurry” and he was able to detain Tominiko.

Officer Stuart was interested in obtaining Tominiko’s

identification to “investigate what was going on over there, if

indeed there was a[n] argument or if there was a fight.” Officer

Stuart also knew that a lot of people drink in that area.

Tominiko mumbled something, kept walking, got into his

car, and tried to start his car. Officer Stuart followed

Tominiko to the car and asked him to exit the vehicle, but

Tominiko started the car and slowly drove away. Officer Stuart

chased Tominiko, and told him to stop driving. Tominiko drove

about seven feet, before a vehicle coming from the opposite

direction forced him to stop.

Officer Stuart approached Tominiko’s window and

directed his flashlight at the back seat of Tominiko’s car to see

if anyone else was in the car. He noticed empty forty-ounce beer

bottles in Tominiko’s car. He asked Tominiko to turn off the car

and provide identification. Tominiko said he left his license at

home, but had a state identification card.

On cross-examination, Officer Stuart testified that as

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he approached the intersection, he heard people talking loudly,

but could not determine if there had been an argument. No one

was fighting when he approached the intersection. He did not

remember Tominiko having a beer bottle in his hand when he first

saw Tominiko.

After the hearing, the district court denied Tominiko’s

motion to suppress. The district court made the following oral

findings and conclusions:
My obligation is to state my essential findings on the
record in a motion to suppress. My essential findings are
that at approximately midnight on August 2nd, 2008, Officer
Stuart was dispatched to investigate a possible argument
call where 15 people are arguing at Ahonui and School
Street.
He arrived on the scene. He saw a group of 15 or 20
people eating and drinking, including drinking beer. It
appeared to be a social gathering. There was loud talk. He
could not tell if that talk was arguing, but there was no
physical fighting.
He approached defendant to investigate and what --
what is going, ask for his I.D. [sic] Defendant kept going,
went to a car. Officer approached [sic] and asked him out
of the car [sic] so he could continue his investigation and
get the I.D. Defendant ignored that request, started the
car, attempted to drive away, and got blocked by another
car. And he said he left his license -- told the officer he
left his license at home. And there were empty beer bottles
in the back of the car.
Based upon that, it’s my conclusion that there was
reasonable suspicion for Officer Stuart to stop the
defendant. A reasonable officer in Officer Stuart’s
position, had reasonable suspicion to believe that there was
criminal activity afoot and therefore had the right to stop
defendant.
And once defendant refused to comply with his simple
request for identification, the officer had the further
right to pursue the defendant and stop him.
So I will deny the motion.

The district court held a stipulated facts trial. The

police report was stipulated into evidence, and part of it

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stated:
Upon arrival, I observed a green Isuzu Trooper bearing
Hawaii license plate [******] parked on the right side of
Ahonui St. about 20 feet from N. School St. Standing around
the vehicle were about 12 male [sic] eating and drinking.
As I parked behind the Isuzu, everyone started to run and
walk away. I told one male who was trying to get inside the
Isuzu to stop and show me some identification. The male got
inside the Isuzu started it up and put the vehicle in drive.
I yelled at the male to turn off the vehicle and show me his
identification. The male started driving off slowly. I ran
up to the driver door and told the male to stop the car and
turn off the engine. The male continued driving for about
another 7 feet when he 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. I again told
the male to turn off the vehicle and show me his
identification. I could see two empty 40oz bottles of Old
English sitting on top of the back seat directly behind the
driver.

A breath test was also administered to Tominiko, and

the result was .160. Tominiko was found guilty of OVUII, but

found not guilty as a highly intoxicated driver.

B. The ICA’s June 30, 2010 Memorandum Opinion

1. Lead opinion

Tominiko subsequently appealed his conviction,

asserting that: 1) “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[;]’” and 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

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and articulable facts that Tominiko was engaged in criminal

activity.” Tominiko, mem. op. at 1. The ICA issued three

opinions on this matter.

The lead opinion held that the prosecution’s charges

were not insufficient. It observed that, in State v. Wheeler,

this 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.

Id. at 4 (quoting State v. Wheeler, 121 Hawai#i 383, 399-400, 219

P.3d 1170, 1186-87 (2009)).

Applying the Motta/Wells liberal construction standard,

the lead opinion held that Tominiko’s conviction was not

insufficient. Id. at 7. It observed that under the Motta/Wells

standard, Tominiko was required to prove either prejudice or that

the charge cannot within reason be construed to charge a crime

and held that Tominiko did not make either showing. Id. at 5.

With respect to prejudice, the lead opinion observed

that Tominiko did not assert prejudice, but instead argued that

he did not need to show prejudice. Id. It held that prejudice

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is a factor under the liberal construction standard, and Tominiko

had failed to show prejudice. Id.

With respect to the failure to charge a crime, the lead

opinion held that “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.’” Id. (quoting Wheeler, 121 Hawai#i at 396, 219 P.3d at

1183). It observed that the third paragraph of the complaint

charges Tominiko with Driving Without Motor Vehicle Insurance on

the day of the incident and alleges that Tominiko “did operate or

use a motor vehicle upon a public street, road, or highway of the

State of Hawai#i.” Id. at 6 (internal quotation marks omitted).

It held that “[b]ecause each of these paragraphs state that the

events occurred ‘[o]n or about the 2nd day of August, 2008, in

the City and County of Honolulu, State of Hawai#i,’ it is

reasonable to construe that they arise from the same event.” Id.

The lead opinion also held that from “the stipulated

facts in the police report, it can be reasonably construed that

the OVUII offense occurred on a public street or road.” Id. For

instance, it observed that the police report stipulated into

evidence states that the place of offense is “AHONUI ST/N. SCHOOL

ST HONOLULU, HI 96819.” Id. Additionally, the “police report

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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.’” Id. Thus,

the lead opinion held that under the liberal construction

standard, the charge could be reasonably construed to charge a

crime. Id. at 6-7.

With respect to Tominiko’s second point of error, the

lead opinion held that Tominiko was seized “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.” Id. at 10. However, it held that “[n]otwithstanding

that a seizure did occur, Officer Stuart had reasonable suspicion

sufficient to support an investigatory stop.” Id. It observed

that “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

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area where Officer Stuart knew people liked to drink.” Id. at

11. It held that 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.” Id. (footnote omitted).

It also held that “combined with the facts set forth above and

under the circumstances of this case, Tominiko’s effort to leave

the scene was an added factor supporting reasonable suspicion.”

Id. at 12.

Finally, the lead opinion held that “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”

because Tominiko drove away from Officer Stuart and was forced to

stop by another vehicle. Id. at 13. At that point, Officer

Stuart noticed the empty beer bottles. Id. The district court’s

December 1, 2008, judgment was therefore affirmed. Id. at 14.

2. Concurring opinion

The concurrence “agree[d] with the lead opinion that

under the ‘liberal construction’ standard for post-trial

challenges to the sufficiency of a charge, the charge against

[Tominiko] for operating a vehicle under the influence of an

intoxicant . . . was sufficient.” Tominiko, concurring op. at 1

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(Nakamura, C.J., concurring). The concurrence would have held

that although “the OVUII charge set forth in the complaint failed

to allege that Tominiko operated his vehicle ‘upon a public, way,

street, road, or highway,’ the missing ‘public road’ allegation

was supplied by a companion charge in the complaint for driving

without insurance.” Id. The concurring opinion observed that in

“State v. Elliot, 77 Hawai#i 309, 312, 884 P.2d 372, 375 (1994),

the Hawai#i Supreme Court, applying the liberal construction

standard, concluded that one way in which a otherwise deficient

count can be reasonably construed to charge a crime is by

examining companion counts with which the defendant was charged.”

Id. Based on that analysis, the concurrence concluded that,

under the liberal construction standard, Tominiko’s OVUII charge

was sufficient to charge a crime. Id. at 7.

With respect to Tominiko’s motion to suppress, the

concurrence would have held that Tominiko was seized at the

initial stop and Officer Stuart did not have reasonable suspicion

to stop or detain him at that point. Id. at 7-8. The

concurrence would have held that no fruit came of Officer

Stuart’s illegal search because Tominiko did not comply with his

request to get out of the car. Id. at 8.

The concurrence observed that it wasn’t until after

Tominiko traveled a short distance and he was forced to stop by

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an oncoming car that Officer Stuart noticed beer bottles in the

back of his car. Id. The concurring opinion would have held

that this “observation gave Officer Stuart probable cause to

believe that Tominiko had an open container of intoxicating

liquor in his car, in violation of Hawaii Revised Statutes (HRS)

§ 291-3.3 (2007).” Id. It would have also held that Officer

Stuart’s search was lawful because he “acquired probable cause to

seize Tominiko based on evidence obtained independent of his

initial unlawful (unsuccessful) seizure” and would have affirmed

the district court’s December 1, 2008, judgment. Id.

3. Dissenting opinion

The dissenting opinion would have vacated and remanded

the case for dismissal without prejudice because the charge was

defective under State v. Wheeler, 121 Hawai#i 383, 219 P.3d 1170

(2009) and the district court lacked subject matter jurisdiction

over the case. Tominiko, dissenting op. at 1 (Fujise, J.,

dissenting) (citing State v. Cummings, 101 Hawai#i 139, 145, 63

P.3d 1109, 1115 (2003)).

Tominiko subsequently applied for a writ of certiorari

to the ICA’s July 15, 2010 Judgment on Appeal filed pursuant to

its June 30, 2010 Memorandum Opinion affirming the district

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court’s judgment filed on December 1, 2008.4

II. STANDARDS OF REVIEW

A. Application For Writ Of Certiorari

The acceptance or rejection of an application for writ

of certiorari is discretionary. HRS § 602-59(a) (Supp. 2010).

“In deciding whether to accept an application, this court reviews

the decisions of the ICA for (1) grave errors of law or of fact

or (2) obvious inconsistencies in the decision of the ICA with

that of the supreme court, federal decisions, or its own

decisions and whether the magnitude of such errors or

inconsistencies dictate the need for further appeal.” State v.

Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009) (citing

HRS § 602-59(b)).

B. Sufficiency Of a Charge

“Whether an indictment sets forth all the essential

elements of an offense to be charged is a question of law”

reviewed under the right/wrong standard. State v. Wells, 78

Hawai#i 373, 379, 894 P.2d 70, 76 (1995).

C. Motion to Suppress

“An appellate court reviews a ruling on a motion to

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

4
The Honorable William Cardwell presided.

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‘wrong.’” State v. Prendergast, 103 Hawai#i 451, 453, 83 P.3d

714, 716 (2004) (internal quotation marks omitted) (quoting State

v. Rodgers, 99 Hawai#i 70, 72, 53 P.3d 209, 211 (2002)).

III. DISCUSSION

A. The OVUII Charge Was Not Insufficient Under the Liberal
Construction Standard.

Tominiko asserts that the ICA gravely erred because the

charge cannot be construed to charge an offense. In response,

the prosecution asserts that under the liberal construction

standard, the charge was sufficient because the driving without

insurance charge alleged that the incident took place “upon a

public street, road, or highway of the State of Hawaii . . . .”

We hold that the charging language was not insufficient under the

liberal construction standard.

Neither party disputes that the liberal construction

standard applies. Under the liberal construction standard, when

a party raises an objection to the indictment for the first time

on appeal, the indictment is liberally construed. State v.

Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019 (1983). This standard

“means we will not reverse a conviction based upon a defective

indictment unless the defendant can show prejudice or that the

indictment cannot within reason be construed to charge a crime.”

Id. at 91, 657 P.2d at 1020. This court has also recognized that

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one “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. Elliot, 77 Hawai#i 309, 312, 884 P.2d 372, 375

(1994) (citing State v. Schroeder, 76 Hawai#i 517, 530, 880 P.2d

192, 205 (1994)).

Applying the foregoing standard in this case, the

charge was not defective because Tominiko has not persuasively

argued that he was prejudiced or that the charge failed to charge

a crime. Tominiko does not assert that he was prejudiced, and

therefore the critical question is whether the charge can be

construed to charge a crime. As discussed below, it can.

Count 3 alleged that Tominiko “did operate or use a

motor vehicle upon a public street, road, or highway of the State

of Hawaii . . . .” Under the liberal construction standard, two

counts can be read together. Elliot, 77 Hawai#i at 312, 884 P.2d

at 375; State v. Sprattling, 99 Hawai#i 312, 319, 55 P.3d 276,

283 (2002) (“[W]e now interpret a charge as a whole, employing

practical considerations and common sense.”) (citing State v.

Daly, 4 Haw. App. 52, 55, 659 P.2d 83, 85-86 (1983)). Although

the OVUII charge did not allege that the conduct occurred on a

public roadway, under the liberal construction standard, reading

the third count with the first count renders the charge

sufficient. See State v. Johnson, No. 28471 at 2-4 (Aug. 2,

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2010) (Recktenwald, J., dissenting). Because both charges refer

to operating a motor vehicle on the same day in Honolulu,

Hawai#i, it can be reasonably inferred that they refer to the

same incident. Therefore, the charge was not defective.

Tominiko asserts that this court has held that the

operation of the vehicle on a public way, street, road, or

highway is an essential element of the offense of OVUII. (Citing

State v. Wheeler, 121 Hawai#i 383, 393, 219 P.3d 1170, 1180

(2009.)) In Wheeler, this court held that, where the defendant

made a timely objection to an OVUII charge, the charge was

insufficient because it failed to allege the public road element

of the offense. Wheeler, 121 Hawai#i at 396, 219 P.3d at 1183.

This argument is not persuasive because Wheeler did not apply the

liberal construction standard and the defendant was not charged

with a second count alleging the public road element. Id. at

400, 219 P.3d at 1187 (“Thus, because Wheeler timely objected to

the oral charge in the district court, the Motta/Wells analysis

is not applicable here.”). This court also held that “we do not

address whether the application of [the Motta/Wells] analysis

would require a different result in the circumstances of this

case, if the objection was not timely made.” Id. at n.19.

Therefore, Wheeler does not indicate that the charge was

insufficient in this case because the liberal construction

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standard did not apply in that case.

Finally, although the Driving Without Motor Vehicle

Insurance charge was dismissed prior to trial, this does not

affect our conclusion that the charge was not insufficient.

Tominiko did not raise any argument concerning the dismissal of

the Driving Without Motor Vehicle Insurance charge before the

ICA. However, even assuming arguendo that Tominiko has preserved

this argument, it is not persuasive. The district court’s

dismissal of the third count did not alter the fact that both

counts referred to the same incident, which occurred on a public

roadway. Although the Driving Without Insurance charge was

dismissed, the complaint, when read as a whole, apprised Tominiko

that he was being charged for conduct that occurred on a public

roadway. See Wheeler, 121 Hawai#i at 394, 219 P.3d at 1181

(“This court’s analysis of charges under the Hawai#i constitution

has focused on whether the language actually used in the charge

provides fair notice to the defendant.”).5 Therefore, the charge

5
The dissent asserts that this court cannot construe counts I and
III together because count III was dismissed prior to trial. Concurring and
Dissenting Opinion at 14-18. The dissent argues that our prior cases on this
issue are not determinative because those cases involved counts that were not
dismissed at trial. Id. (citing Elliot, 77 Hawai#i at 312, 884 P.2d at 375;
State v. Schroeder, 76 Hawai#i 517, 529, 880 P.2d 192, 205 (1994)). However,
neither of those cases held that counts could only be construed together if
they were not dismissed prior to trial. See Elliot, 77 Hawai#i at 312, 884
P.2d at 375; Schroeder, 76 Hawai#i at 530, 880 P.2d at 205. Because the
charging document, when liberally construed, provided Tominiko with notice
that he was being charged with conduct that occurred on a public roadway, the
continue...

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was not insufficient when examining it as a whole.

B. Officer Stuart’s Seizure Of Tominiko Was Unconstititional
and the ICA Gravely Erred By Affirming the District Court’s
Judgment.

The ICA gravely erred by affirming the district court’s

judgment because: 1) Officer Stuart did not have reasonable

suspicion at the time he seized Tominiko; and 2) the evidence

Officer Stuart obtained was a result of his unlawful seizure.

1. Officer Stuart did not have reasonable suspicion to
stop Tominiko.

Article I, section 7 of the Hawai#i Constitution and

the Fourth Amendment of the United States Constitution provide

the right to be free from unreasonable searches and seizures. To

determine whether a seizure is unconstitutional, this court

determines: 1) whether the person was seized; and 2) whether the

seizure was justified. State v. Dawson, 120 Hawai#i 363, 369,

205 P.3d 628, 634 (App. 2009).

Neither party disputes the lead opinion’s conclusion

5
...continue
charge was sufficient.
Additionally, to the extent that the dissent asserts that Hawai#i Rules
of Penal Procedure Rule 7(d) requires explicit language incorporating elements
from one count into another, this argument is unpersuasive because it was
rejected in this court’s opinion in Schroeder. See Concurring and Dissenting
Opinion at 18 (citing State v. Schroeder, 10 Haw. App. 535, 545, 880 P.2d 208,
212-13 (App. 1992), aff’d on other grounds, Schroeder, 76 Hawai#i at 532, 880
P.2d at 207). In that opinion, this court held that a count could incorporate
language from another count, even though the charging document did not contain
language specifically doing so in that case. See Schroeder, 76 Hawai#i at
518-19, 530, 880 P.2d at 193-94, 205.

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that Tominiko was seized at the first stop. “[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.”

State v. Kearns, 75 Haw. 558, 566, 867 P.2d 903, 907 (1994)

(citing State v. Quino, 74 Haw. 161, 168-73, 840 P.2d 358, 362-64

(1992)). “Whether a reasonable person would feel free to leave

is determined under an objective standard that this court reviews

de novo.” Id. (citing State v. Tsukiyama, 56 Haw. 8, 12, 525

P.2d 1099, 1102 (1974)). 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.” Id. at 567, 867 P.2d at 907.

In this case, Officer Stuart told Tominiko to exit his

car. At a minimum, a reasonable person would not have felt free

to leave when Officer Stuart asked Tominiko to exit his car,

which is also demonstrated by Officer Stuart’s subsequent chasing

of Tominiko. Thus, Tominiko was seized when Officer Stuart told

him to exit the vehicle.

This stop was not supported by reasonable suspicion.

This court has held that “the police may temporarily detain an

individual if they have a reasonable suspicion based on specific

and articulable facts that criminal activity is afoot.” Kearns,

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75 Haw. at 569, 867 P.2d at 908 (citing State v. Melear, 63 Haw.

488, 493, 630 P.2d 619, 624 (1981)). This court has adhered to

the following standard for reasonable suspicion:
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.” 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. (Citations
omitted.)

Melear, 63 Haw. at 493, 630 P.2d at 624 (emphasis added) (quoting

State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1211 (1977)).

This court evaluates the totality of the circumstances

to determine whether a stop is supported by reasonable suspicion.

State v. Spillner, 116 Hawai#i 351, 357, 173 P.3d 498, 504

(2007).

Tominiko asserts that the lead opinion gravely erred by

concluding that the initial stop was supported by reasonable

suspicion because: 1) the anonymous tip “lacked sufficient

indicia of reliability to provide reasonable suspicion to make an

investigatory stop of Tominiko[;]” 2) the fact that Tominiko

attempted to avoid confrontation with the police did not create

reasonable suspicion; and 3) “the evidence used to convict

Tominiko of OVUII, including evidence of empty beer bottles, was

fruit or tainted evidence obtained as a result of Officer

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Stuart’s illegal seizure of Tominiko[.]” In response, the

prosecution asserts that “[g]iven the reports received by Officer

Stuart of a fairly large group arguing at about midnight and

Officer Stuart’s own observation of alcoholic consumption by

members of the group and the Petitioner and other members of the

group’s sudden dispersal upon Officer Stuart’s arrival, Officer

Stuart’s initial suspicion that Petitioner and other members of

the group were drinking alcohol in public in violation of Revised

Ordinances of Honolulu (ROH) 40-1.2(a) (2008) and/or that members

of the group may have been fighting or making unreasonable noise

in violation of HRS § 711-1101(a) or (b) (2008 Supp.) was not

objectively unreasonable.” (Emphasis omitted.)

We hold that Officer Stuart did not have reasonable

suspicion to seize Tominiko because Officer Stuart did not have

evidence that Tominiko, rather than other members of his group,

had committed or was about commit a crime. Hawai#i courts have

held that “[b]ased upon all the circumstances, the detaining

officers must have a particularized and objective basis for

suspecting the particular person stopped of criminal activity.”

State v. Koanui, 3 Haw. App. 255, 258, 649 P.2d 385, 387 (App.

1982) (emphasis added) (citing United States v. Cortez, 449 U.S.

411, 417 (1981)); State v. Uddipa, 3 Haw. App. 415, 418, 651 P.2d

507, 510 (App. 1982) (stating that reasonable suspicion requires

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“that the particular individual being stopped is engaged in

wrongdoing”) (internal quotation marks omitted). Additionally,

the United States Supreme Court has also required reasonable

suspicion that the person stopped was involved in criminal

activity. Cortez, 449 U.S. at 417-18 (citing Brown v. Texas, 443

U.S. 47, 51 (1979); United States v. Brignoni-Ponce, 422 U.S.

873, 884 (1975)). Under both federal and state law, Officer

Stuart needed reasonable suspicion that Tominiko was involved in

criminal conduct.

Officer Stuart did not have a reasonable suspicion that

Tominiko was engaged in criminal activity. Officer Stuart

admitted that he did not recall seeing Tominiko drinking beer or

holding a beer bottle in his hand when he approached the group.

Additionally, Officer Stuart did not see Tominiko fighting or

talking loud. Although a call reporting an argument was made,

Officer Stuart could not determine if the group was arguing, and

did not see Tominiko or anyone in the group fighting.

Other courts have held that there is no reasonable

suspicion to stop an individual in similar situations. For

instance, in United States v. Williams, the Sixth Circuit held

that a police officer did not have reasonable suspicion to stop

the defendant when people in the defendant’s group were drinking

in public and allegedly trespassing on private property. 615

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F.3d 657, 667 (6th Cir. 2010). The court held that “the argument

for reasonable suspicion based on others’ drinking and presence

on [the] property is weak in light of the Supreme Court’s

emphasis on ‘individualized suspicion of wrongdoing.’” Id.

(quoting Chandler v. Miller, 520 U.S. 305, 313 (1997)); see also

State v. Regnier, 212 P.3d 1269, 1274 (Or. App. 2009) (holding

that police officers did not have reasonable suspicion that the

defendants possessed alcohol in public when members of their

group were drinking). Likewise, because Officer Stuart did not

observe Tominiko drinking, arguing, fighting, or making

unreasonable amounts of noise, he did not have reasonable

suspicion that Tominiko committed a crime.

The call regarding fifteen people arguing also does not

provide reasonable suspicion to stop Tominiko. “A forcible stop

of a person suspected of criminal activity may . . . be

predicated upon an informer’s word, provided the information

carries ‘enough indicia of reliability.’” State v. Temple, 65

Haw. 261, 270, 650 P.2d 1358, 1364 (1982) (quoting Adams v.

Williams, 407 U.S. 143 (1972)). This court has analyzed whether

the circumstances of the stop corroborate a tip in assessing its

reliability. See State v. Ward, 62 Haw. 459, 461-62, 617 P.2d

565, 566-67 (1980) (holding that a tip was sufficiently reliable

to create reasonable suspicion where the informant had provided

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reliable information in the past, the substance of the tip was

very specific, and the officers’ observations coincided in

verifiable respects with their informant’s tip). Officer

Stuart’s observations did not confirm the substance of the tip,

which asserted that the group was arguing. For instance, Officer

Stuart testified that the group was having a social gathering.

He testified that some people were talking loudly, but he could

not discern whether the group was arguing. Furthermore, the call

provided no information that Tominiko had argued or fought.

Therefore, the tip was not reliable because Officer Stuart’s

observations did not confirm it.

Additionally, the call to dispatch did not indicate

that Tominiko had engaged in any illegal activity. The call did

not single out Tominiko and did not allege that any illegal

conduct took place. Because the central inquiry of the legality

of an investigatory stop is whether there is a reasonable

suspicion that a person was involved in illegal conduct, the call

could not have provided reasonable suspicion to stop Tominiko.

See State v. Heapy, 113 Hawai#i 283, 285, 151 P.3d 764, 766

(2007) (“It is axiomatic that reasonable suspicion to justify a

stop must relate to criminal activity.”); Koanui, 3 Haw. App. at

257-58, 649 P.2d at 387.

Finally, Tominiko’s walk to his car does not

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demonstrate reasonable suspicion that he committed a crime.

“[T]he majority of jurisdictions which have addressed the issue

of flight have held that the mere act of avoiding confrontation

does not create an articulable suspicion.” Heapy, 113 Hawai#i at

294, 151 P.3d at 775 (internal quotation marks omitted) (quoting

State v. Talbot, 792 P.2d 489, 493-94 (Utah Ct. App. 1990)).

This court has held that flight from police can support a finding

of probable cause. State v. Melear, 63 Haw. 488, 494-95, 630

P.2d 619, 625 (1981). In this case, the flight was not as

inculpatory as in Malear. For instance, in Malear, the defendant

ran away after the police asked him to stop and show

identification. Id. In this case, Tominiko mumbled something,

walked to his car, and attempted to start it. Officer Stuart

testified that Tominiko was the only person in the crowd that did

not leave in a hurry. Tominiko’s walking to his car did not

raise reasonable suspicion that he committed a crime.

Additionally, the lead opinion held that Tominiko’s

flight, in conjunction with the other circumstances, created

reasonable suspicion. Tominiko, mem. op. at 13. However, this

argument is not persuasive because the other circumstances did

not provide a reasonable suspicion that Tominiko had committed a

crime. See supra at 23-27. Thus, the lead opinion gravely erred

by holding that Officer Stuart had reasonable suspicion that

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Tominiko was engaged in criminal conduct.

2. The ICA gravely erred because the evidence obtained was
the result of Officer Stuart’s unconstitutional
seizure.

The lead opinion also held that “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.”

Tominiko, mem. op. at 13. It observed that another vehicle

stopped Tominiko’s car and that Officer Stuart then saw the beer

bottles in Tominko’s car. Id. The concurrence also would have

held that there were no fruits or tainted evidence obtained from

Officer Stuart’s initial seizure of Tominiko because Tominiko

drove off after being stopped by Officer Stuart, and was later

stopped by another vehicle. Tominiko, concurring op. at 8. The

concurring opinion would have held that Officer Stuart gained

probable cause to believe that Tominiko had an open container in

his car in violation of HRS § 291-3.3 (2007) after observing beer

bottles in Tominiko’s car. Id.

Tominiko asserts that the lead opinion and concurring

opinion gravely erred because the evidence obtained by Officer

Stuart was tainted evidence. Tominiko asserts that the

concurring opinion adopts a test for “seizure” that this court

rejected in State v. Quino, 74 Haw. 161, 170, 840 P.2d 358, 362

(1992) (“[W]e decline to adopt the definition of seizure employed

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by the United States Supreme Court in Hodari D.[, 499 U.S. 621,

625 (1991)] and, instead, choose to afford greater protection to

our citizens by maintaining the Mendenhall standard.”). In

Quino, this court described the United States Supreme Court’s

definition of “seizure” in Hodari D. as requiring “either

physical force or submission to an assertion of authority.”

Quino, 74 Haw. at 169-70, 840 P.2d at 362. This court rejected

the Hodari D. standard, and continued to adhere to the following

standard to offer greater protection under article I, section 7

of the Hawai#i Constitution: “we must evaluate the totality of

the circumstances and decide whether or not a reasonably prudent

person would believe he was free to go.” Id. at 170, 840 P.2d at

362 (internal quotation marks omitted) (quoting State v.

Tsukiyama, 56 Haw. 8, 12, 525 P.2d 1099, 1102 (1974)). We hold

that the evidence obtained was the result of an illegal seizure

because: 1) Officer Stuart’s stop was a single illegal seizure;

and 2) even viewing the incident as two separate seizures, the

evidence recovered after the second seizure was the fruit of the

first illegal seizure.

The ICA gravely erred because Officer Stuart’s stop was

a single illegal seizure. This court rejected Hodari D.’s

holding that a seizure requires “either physical force or

submission to an assertion of authority.” Id. at 169-70, 840

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P.2d at 362. Furthermore, some courts that have rejected Hodari

D. have also concluded that pursuit of a person can constitute a

seizure. For instance, in Commonwealth v. Matos, the

Pennsylvania Supreme Court noted that the “issue in each of these

cases is whether the pursuit by the police officer was a seizure”

and held that it was. 672 A.2d 769, 771, 776 (Pa. 1996); see

also Commonwealth v. Thibeau, 429 N.E.2d 1009, 1010 (Mass. 1981)

(“For present purposes, a stop starts when pursuit begins.”).

Although this court has not held that a person is continually

seized upon fleeing from police, this court’s rejection of Hodari

D. supports that conclusion. If a seizure occurs when police

officers start to chase a person, a seizure continues when the

person runs after disobeying a command to stop. Thus, Officer

Stuart’s encounter with Tominiko was a single seizure. Officer

Stuart’s continuing attempt to improperly seize Tominiko placed

the officer in the position from which he could observe the

bottles in Tominiko’s car. State v. Poaipuni, 98 Hawai#i 387,

393, 49 P.3d 353, 359 (2002) (“Assuming, arguendo, that [the

defendant’s] father[] voluntarily informed the police that the

[contraband was] located in the tool shed and, moreover,

voluntarily consented to the search of the tool shed, the police

still would not have been in a position to learn of the firearms

or to discover them in the tool shed had not they executed the

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defective search warrant.”).6 Therefore, the circuit court erred

by failing to suppress the evidence recovered as a result of that

seizure.

Alternatively, the evidence obtained after the second

stop is fruit of the poisonous tree because it was obtained as a

result of the first illegal stop. This court has held that the

“fruit of the poisonous tree” doctrine “prohibits the use of

evidence at trial which comes to light as a result of the

exploitation of a previous illegal act of the police.” State v.

Fukusaku, 85 Hawai#i 462, 475, 946 P.2d 32, 45 (1997) (internal

quotation marks omitted) (quoting State v. Medeiros, 4 Haw. App.

248, 251 n.4, 665 P.2d 181, 184 n.4 (1983)). To determine

whether evidence is tainted from an illegal search, this court

has adhered to the following standard:
Admissibility 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. Wong Sun v. United
States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Where the government proves that the evidence was discovered
through information from an independent source or where the
connection between the illegal acts and the discovery of the
evidence is so attenuated that the taint has been
dissipated, the evidence is not a “fruit” and, therefore, is
admissible. Wong Sun v. United States, supra.

Id. (emphasis added).

6
The situation in the instant case is distinguishable from one
where a police officer attempts to improperly seize a person but observes
contraband which the officer would have observed regardless of the attempt to
seize.

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This court has also stated that in “other words, the

ultimate question that the fruit of the poisonous tree doctrine

poses is as follows: Disregarding the prior illegality, would

the police nevertheless have discovered the evidence?” Poaipuni,

98 Hawai#i at 393, 49 P.3d at 359.

Under the foregoing standard, the ICA gravely erred by

concluding that the evidence obtained after Officer Stuart’s

seizure of Tominiko was not fruit of the poisonous tree because

the evidence was obtained as a result of Officer Stuart’s illegal

seizure of Tominiko. Officer Stuart did not have reasonable

suspicion to stop Tominiko, and after catching up to Tominiko, he

discovered probable cause to arrest Tominiko. The evidence

obtained after the initial stop is fruit of the poisonous tree

because it was discovered by exploiting Officer Stuart’s prior

illegal seizure.

This court reached a similar conclusion in Quino, 74

Haw. at 168, 840 P.2d at 362. In Quino, the defendant was

stopped after arriving at an airport. Id. at 165, 840 P.2d at

360. Police officers requested to pat the defendant down, and

the defendant fled. Id. at 166, 840 P.2d at 361. During the

chase, the defendant discarded drugs. Id. This court held that

the defendant was unlawfully seized by the police officers’

interrogation and that the evidence obtained after the defendant

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fled was inadmissible as the product of an illegal seizure. Id.

at 168, 840 P.2d at 361-62. This court also held that it was

unnecessary to decide whether the defendant was “seized” when the

police officers pursued him as he ran through the airport

terminal. Id. at 163 n.1, 840 P.2d at 359 n.1. As in Quino, the

evidence in this case was the product of an illegal seizure

because it came to light when Officer Stuart caught up with

Tominiko after the initial unlawful stop.

Quino is factually distinguishable because the drugs in

Quino were thrown while the police officers chased the defendant,

while in this case, Officer Stuart caught up with Tominiko and

then acquired probable cause to arrest Tominiko upon observing

the bottles in his car. This distinction does not suggest that

the evidence is not the product of an illegal seizure because

Officer Stuart’s observations resulted from his continued pursuit

in an attempt to force Tominiko to comply with his unlawful

seizure. Therefore, the evidence used to convict Tominiko was

fruit of the poisonous tree.

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IV. CONCLUSION

Based upon the foregoing analysis, we vacate the ICA’s

judgment on appeal, vacate the district court’s judgment, and

remand for a new trial.

On the briefs:

Craig W. Jerome, Deputy /s/ Mark E. Recktenwald
Public Defender, (James S.
Tabe and Jon N. Ikenaga, /s/ Paula A. Nakayama
Deputy Public Defenders,
on the briefs) for /s/ James E. Duffy, Jr.
petitioner-defendant-
appellant /s/ Bert I. Ayabe

Brian R. Vincent, Deputy
Prosecuting Attorney, for
respondent-plaintiff-
appellee

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