State v. Torres

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
28583
09-AUG-2011
01:37 PM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I,
Respondent and Petitioner/Plaintiff-Appellee,

vs.

JENARO TORRES,
Petitioner and Respondent/Defendant-Appellant.

NO. 28583

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CR. NO. 05-1-2556)

AUGUST 9, 2011

ACOBA, AND DUFFY, JJ., CIRCUIT JUDGE POLLACK IN
PLACE OF RECKTENWALD, C.J., RECUSED, AND CIRCUIT
JUDGE BORDER ASSIGNED DUE TO A VACANCY;
WITH NAKAYAMA, ACTING C.J., CONCURRING SEPARATELY AND DISSENTING

AMENDED OPINION OF THE COURT BY ACOBA, J.1

We hold that where the State seeks to prosecute a

1
On May 2, 2011, Respondent and Petitioner/Plaintiff-Appellee State
of Hawai#i (Respondent) filed a Motion for Reconsideration in response to this
court’s April 15, 2011 published opinion, State v. Torres, No. SCWC-28583,
slip op. (Apr. 15, 2011). On June 30, 2011, this court granted Respondent’s
Motion, in part, to modify the April 15, 2011 opinion, as set forth herein.
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

defendant in a Hawai#i state court, and seeks to admit evidence

obtained in another jurisdiction, the court must give due

consideration to the Hawai#i Constitution and applicable case

law, as indicated herein, when assessing whether such evidence is

admissible against the defendant. Both Respondent and Petitioner

and Respondent/Defendant-Appellant Jenaro Torres (Petitioner)

applied for writs of certiorari to review the January 7, 2010

judgment of the Intermediate Court of Appeals (ICA)2 filed

pursuant to its December 15, 2009 published opinion vacating the

May 29, 2007 judgment of conviction filed by the circuit court of

the first circuit (the court).3 We accepted Petitioner’s

Application for writ of certiorari (Petitioner’s Application or

Application) to correct the ICA’s analysis with regard to the

admissibility of evidence obtained by federal officers in a state

court prosecution.

In accordance with the opinion set forth herein, we

uphold that portion of the ICA’s opinion affirming the legality

of the searches of Petitioner’s vehicle under federal law.

However, we correct the opinion of the ICA insofar as it failed

to additionally consider whether the searches of Petitioner’s

vehicle also comported with the Hawai#i Constitution and

applicable case law. We affirm the opinion of the ICA in all

2
The opinion was authored by Chief Judge Craig H. Nakamura and
joined by Associate Judges Alexa D.M. Fujise and Katherine G. Leonard.

3
The Honorable Michael A. Town (now retired) presided over the
relevant proceedings.

2
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

other respects and we affirm the court’s December 5, 2006 order

denying Petitioner’s motion to suppress under the Hawai#i

Constitution.

I.

The following relevant facts, some verbatim, are from

the ICA opinion and the record.

A.

Ruben Gallegos (Gallegos) worked as a cashier at the

Pearl Harbor Naval Base (PHNB) Navy Exchange. State v. Torres,

122 Hawai#i 2, 6, 222 P.3d 409, 413 (App. 2009). On May 1, 1992,

Gallegos was assigned to cash paychecks at a satellite cashier’s

cage (cashier cage). Id. at 7, 222 P.3d at 414. Prior to

reporting to the cashier cage, Gallegos received $80,000 in cash.

Id. Shortly after Gallegos had been escorted to the cashier

cage, Petitioner, who was a police officer at PHNB, arrived at

the cashier cage in his police uniform, although Petitioner was

not scheduled to work on that day. A witness saw Gallegos exit

the cashier cage carrying the canvas cash bag and saw the two men

walk toward the parking area. Id. Military authorities were

subsequently notified that Gallegos was not at his post and “an

all points bulletin was issued to detain and arrest [Petitioner]

and Gallegos[.]” Id. at 8, 222 P.3d at 415.

Later that day, PHNB police officer Napoleon Aguilar

(Officer Aguilar) saw Petitioner in a line of cars waiting to

enter PHNB. Id. Officer Aguilar waived Petitioner through, but,

3
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

once through, motioned for him to stop. Id. When Petitioner

rolled down his window to shake Officer Aguilar’s hand, Officer

Aguilar reached into Petitioner’s vehicle and turned off the

ignition. Id. A struggle ensued but Petitioner eventually

complied with Officer Aguilar’s orders, exited the vehicle, and

was arrested. Id. Because Petitioner’s vehicle was blocking

traffic, PHNB Police Sergeant James Rozkiewicz (Sergeant

Rozkiewicz) moved it to a nearby parking lot. Id. Pursuant to

base procedures for securing an unattended vehicle, Sergeant

Rozkiewicz checked the vehicle and the trunk for hazardous or

flammable substances. Id. When Sergeant Rozkiewicz attempted to

lock the glove compartment, the compartment door fell open,

revealing a .38 caliber revolver and a scanner. Id.

Naval Criminal Investigative Service (NCIS) Special

Agent Ty Torco (Agent Torco) prepared an affidavit in support of

a Command Authorization for Search and Seizure (Command

Authorization), seeking authorization to search Petitioner’s

vehicle. Id. at 16, 222 P.3d at 423. The affidavit detailed the

information Agent Torco had learned regarding Petitioner’s

alleged involvement in the theft of $80,000 from the Navy

Exchange and also included the observations made by Sergeant

Rozkiewicz during his inspection and securing of Petitioner’s

vehicle. Id. The Command Authorization was signed by E.A.

Warner, Commander of PHNB. Id.

4
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

A subsequent search of Petitioner’s vehicle by NCIS and

FBI agents revealed a brown bag in the trunk, which NCIS agents

recognized as the type of bag used by the Navy Exchange to

transport cash. Id. at 8, 222 P.3d at 415. The bag contained

$77,971.82 in cash, along with other items, including a wallet in

which Gallegos’s driver’s license, Navy Exchange identification

card, bank card, temporary pass to Pearl Harbor, and other papers

were found. Id. NCIS agents also recovered a .38 caliber

revolver registered to Petitioner, a stun gun, and a scanner in

the glove compartment. Id. NCIS agent Robert Robbins (Agent

Robbins) testified at Petitioner’s trial that upon examination of

the revolver obtained from Petitioner’s vehicle, he discovered

that there were two intact bullets and three spent cartridge

casings in the revolver. Id. Gallegos, who had been reported

missing on May 1, 1992, was never seen again. Id.

Petitioner was subsequently charged by the federal

government with theft and possession of a loaded firearm on a

public highway without a license. Id. at 6, 222 P.3d at 413.

Petitioner pled no contest to both charges in federal court and

was sentenced to concurrent terms of two years of imprisonment.

Id.

Thirteen years after the federal charges were filed,

Respondent charged Petitioner with murder in the second degree of

Gallegos, in violation of Hawai#i Revised Statutes (HRS)

5
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

§ 707-701.5 (Supp. 1992).4 The indictment further stated that

Petitioner was subject to sentencing under HRS § 706-660.1 (Supp.

1992),5 for having “a firearm in his possession or threatened the

use or used the firearm while engaged in the commission of [a]

felony, whether the firearm was loaded or not, and whether

operable or not.”

B.

On July 24, 2006, Petitioner filed a Motion to Suppress

Evidence No. 2 with the court, seeking to preclude all evidence

obtained from the search of his automobile, including the

handgun, stun gun, scanner, victim’s wallet, identification, and

other papers, nearly seventy-eight thousand dollars, and all

testimony derived therefrom. Petitioner claimed that the

4
HRS § 707-701.5, in effect at the time, stated:

Murder in the second degree. (1) Except as provided in
section 707-701, a person commits the offense of murder in
the second degree if the person intentionally or knowingly
causes the death of another person.
(2) Murder in the second degree is a felony for which
the defendant shall be sentenced to imprisonment as provided
in section 706-656.

5
HRS § 706-660.1 provided in pertinent part:

Sentence of imprisonment for use of a firearm,
semiautomatic firearm, or automatic firearm in a felony.
(1) A person convicted of a felony, where the person had a
firearm in the person’s possession or threatened its use or
used the firearm while engaged in the commission of the
felony, whether the firearm was loaded or not, and whether
operable or not, may in addition to the indeterminate term
of imprisonment provided for the grade of offense be
sentenced to a mandatory minimum term of imprisonment
without possibility of parole or probation the length of
which shall be as follows:
(a) For murder in the second degree and attempted
murder in the second degree--up to fifteen
years[.]

6
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

searches of his vehicle violated article I, section 7 of the

Hawai#i Constitution6 and the Fourth7 and Fourteenth8 Amendments

to the United States Constitution.

On January 10, 2007, the court issued its Order Denying

Petitioner’s Motion to Suppress No. 2 (order). In its order, the

court made the following findings of fact (findings).
1. On May 1, 1992, [Sergeant Rozkiewicz was] on duty
as a base police officer for the [PHNB] and was the acting
desk lieutenant. At the time, he had been employed as a
base police officer for 6 years.
2. On May 1, 1992, [Officer Aguilar] was also working
as a [PHNB] police officer and assigned to guard duty at the
Makalapa Gate of the [PHNB].
3. The [PHNB] is a place where nuclear submarines,
ships and other military transport vehicles are housed.
4. The [PHNB] also has various officers in high
command positions stationed on the base.
5. The [PHNB] had specific regulations for entrance
onto the base as provided for in the Internal Security Act
of 1950.
6. Pursuant to the Internal Security Act of 1950, the
[PHNB] posted a clear and visible sign at the entrance gate
which stated: “Authorized Entry Onto This Installation
Constitutes Consent To Search Of Personnel And The Property
Under Their Control. Internal Security Act of 1950 Section
21; 50 U.S.C. 7979.”

6
Article I, section 7 of the Hawai#i Constitution provides that
“[t]he right of the people to be secure in their persons . . . against
unreasonable searches, seizures and invasions of privacy shall not be
violated[.]”

7
The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.

8
The Fourteenth Amendment to the United States Constitution states
in pertinent part that

[n]o state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.

7
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

7. The aforementioned sign was posted at the Makalapa
Gate prior to and on May 1, 1992.
8. Any person who, after reading the sign, decides
not to consent to a search of their [sic] person or property
can turn around and leave without having their [sic] person
or property searched.
9. Additionally, the guard shack where a person would
have to report in order to gain entrance onto the base was
located approximately 50 feet past the sign, thus giving a
person ample opportunity to turn around if the person did
not want to be subjected to a search of their [sic] person
or property.
10. The duties of a base police officer included
enforcement of rules and regulations regarding entry onto
the base as well as enforcement of the laws on the base.
11. [Sergeant] Rozkiewicz had receiving [sic] recruit
training and other ongoing or recall training regarding the
rules and regulations on base.
12. Prior to May 1, 1992, [Sergeant] Rozkiewicz was
[Petitioner’s] supervisor. [Petitioner] was also employed
as a [PHNB] police officer. [Petitioner] had knowledge of
the rules and regulations concerning entry onto the base
because he had received training regarding the Internal
Security Act of 1950 and the regulations concerning
procedures to search persons and property.
13. [Officer] Aguilar and [Petitioner] went to
training together in June 1990 at the Pearl Harbor police
academy and they received training on the Internal Security
Act of 1950.
14. On May 1, 1992, prior to 2:30 p.m., [Sergeant]
Rozkiewicz was aware of the theft of $80,000.00 from the
Navy Exchange and that the persons involved was [sic] the
courier [] [Gallegos] and [Petitioner].
15. Sometime after 11:00 a.m., [Officer] Aguilar
received information from [Sergeant] Rozkiewicz and Major
Cruciano that both Gallegos and [Petitioner] were suspects
in the theft of $80,000.00 from the Navy Exchange.
16. Around 2:10 p.m., [Officer] Aguilar saw
[Petitioner]’s vehicle, a silver-gray Chevrolet Celebrity
with the license place “KUNSIL” approach the Makalapa Gate.
17. [Petitioner] entered the Makalapa Gate, at which
time [Officer] Aguilar motioned for him to stop the vehicle.
Upon stopping the vehicle, [Officer] Aguilar reached into
the vehicle to turn it off and grabbed the shifting level
which was already in park.
18. [Officer] Aguilar informed [Petitioner] that []
[NCIS] wanted to talk to him about the incident,
[Petitioner] began to struggle to restart the vehicle.
19. [Officer] Aguilar then ordered [Petitioner] out
of the vehicle and issued a felony stop.
20. [Petitioner] complied with [Officer] Aguilar’s
order and stepped out of his vehicle.
21. [Petitioner] was ordered to lie face-down in the
grassy median strip and subsequently handcuffed.
22. When [Sergeant] Rozkiewicz arrived on the scene
around 2:30 p.m., he observed traffic backing up from the
inbound lanes of the Makalapa Gate to Kam Highway.
[Sergeant] Rozkiewicz then made a decision to get traffic
going and moved the vehicle into the base chapel parking lot
that was approximately 31 feet away.

8
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

23. After moving the vehicle, [Sergeant] Rozkiewicz
followed base police procedures in securing the vehicle,
which required police to check a vehicle that was going to
be left unattended on base, for flammable or volatile
substances such as gasoline, kerosene and explosives.
24. [Sergeant] Rozkiewicz attempted to secure and
lock the glove compartment within [Petitioner’s] vehicle by
using what he thought was the key for the glove compartment.
In doing so, the glove compartment lid fell down, at which
time, [Sergeant] Rozkiewicz observed a scanner and a pistol
in the glove compartment.
25. The viewing of the contents in the glove
compartment by [Sergeant] Rozkiewicz was inadvertent and at
the time, [Sergeant] Rozkiewicz was not searching for
evidence pertaining to the theft of $80,000.00 from the Navy
Exchange or the murder of [] Gallegos. Further, [Sergeant]
Rozkiewicz did not remove or search the glove compartment
after the initial inadvertent viewing of the glove
compartment contents.
26. [Sergeant] Rozkiewicz opened the trunk of [the]
vehicle to make a visual check and ensure there were no
items within the truck [sic] that would “catch fire” or
explosives, and during this check, [Sergeant] Rozkiewicz
observed a base police uniform shirt, a pair of dark
trousers, a Sam Browne leather gear and a black plastic bag
that was partially open, exposing a section of brown
leather.
27. The visual check of the truck [sic] comported
with the [PHNB] police routine to secure vehicles on base []
to ensure the safety of the personnel and the military
transport vehicles on base, and that the routine check was
not for the purpose of searching for evidence pertaining to
the theft of the $80,000.00 or the murder of [] Gallegos.
28. When [Petitioner] approached the [PHNB] Makalapa
Gate, he intended to gain entry onto the base.
29. Searches conducted pursuant to the Internal
Security Act of 1950 is [sic] necessary for the protection
of military transport vehicles and base personnel.
30. [Petitioner] did not indicate to anyone that he
was revoking his consent to enter onto the base or that he
intended to leave the base. As such, because of
[Petitioner’s] training and knowledge of base procedures, he
consented to a search of his person and vehicle when he
entered the Makalapa Gate.
31. Notwithstanding [Sergeant] Rozkiewicz’
observations, the Naval Criminal Investigators and base
police had sufficient information to obtain a [Command
Authorization] pursuant to Rule 315, Military Rules of
Evidence and therefore, would have inevitably discovered the
evidence in [Petitioner’s] vehicle after obtaining a
[Command Authorization].
32. The [Command Authorization] was properly applied
for and signed by [E].A. [W]arner, Commander of the [PHNB]
pursuant to Rule 315, Military Rules of Evidence.
33. A commander qualifies as a neutral and detached
magistrate for the purpose of determining probable cause.
34. There was sufficient probable cause for the
issuance of the [Command Authorization].
35. [Respondent’s] witnesses are credible.

(Emphases added.)

9
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

The court made the following conclusions of law

(conclusions).
1. The Internal Security Act of 1950 (50 U.S.C. 797)
authorized the search of a [d]efendant’s person and property
under his control.
2. There was a government interest in protecting the
[PHNB] and a person with notice of such impending search
into a restricted area with heightened security relinquishes
any reasonable expectation of privacy. United States v.
Jenkins, 986 F.2d 76, 79 ([4th Cir.] 1993).
3. Great deference must be shown to the special needs
of the Armed [F]orces at military and naval installations.
United States v. Ellis, 15 F. Supp. 2d 1025 (1998).
4. Searches on closed military bases are exempt from
the usual Fourth Amendment requirements of “probable cause.”
[Jenkins], 986 F.2d 76 [].
5. [Petitioner] having knowledge of the Internal
Security Act of 1950, his conduct of driving onto the [PHNB]
and the absence of any evidence to indicate that
[Petitioner] revoked his consent demonstrate[] that
[Petitioner] consented to a search of his person and
property under his control when he entered the Makalapa
Gate. See State v. Hanson, 97 Haw[ai#i] 71, 34 P.3d 1
(2001) [(hereinafter, “Hanson II”), affirming State v.
Hanson, 97 Hawai#i 77, 34 P.3d 7 (App.) (hereinafter,
“Hanson I”)].
6. There was no search within the meaning of
[a]rticle 1, [s]ection 7 of the Hawai#i State Constitution,
the Fourth and Fourteenth Amendments of the United States
Constitution where [Sergeant] Rozkiewicz was following base
procedures to secure the vehicle, at which time, the glove
compartment door fell open and thereby exposing the pistol
and scanner inside the glove compartment.
7. Because the investigating officers had sufficient
probable cause to obtain a search warrant at the time
[Petitioner] entered the Makalapa Gate of the [PHNB], the
investigating officers would have inevitably obtained a
[Command Authorization] pursuant to Rule 315, Military Rules
of Evidence. State v. Lopez, 78 Haw[ai#i] 433, 896 P.2d 889
(1995).
8. A [Command Authorization] pursuant to Rule 315,
Military Rules of Evidence complies with the requirements of
Chapter 803, [HRS].
9. The [Command Authorization] was signed by E. A.
Warner, a base commander, as authorized by Rule 315,
Military Rules of Evidence, and the base commander qualifies
as a neutral and detached magistrate as required in Chapter
803, [HRS]. United States v. Banks, 539 F.2d 14 (9th Cir.
1976).
10. There was sufficient probable cause for issuance
of a [Command Authorization] even if the affidavit was based
in part on illegal [sic] seized evidence, where sufficient
probable cause existed to issue the authorization for search
and seizure without reliance on the suppressed evidence.
State v. Brighter, 63 Haw. 95, 621 P.2d 374 (1980).

10
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

(Emphases added.) Respondent did not challenge the findings and

conclusions of the court. Therefore, the court’s findings are

binding in the instant appeal and furthermore, any objections to

the court’s findings and conclusions are deemed waived.

“[P]oints not argued may be deemed waived.” Hawai#i Rules of

Appellate Procedure Rule 28(b)(7) (2010).

C.

Trial commenced on March 6, 2007. At trial, Susan

Davis (Davis) testified that she became acquainted with

Petitioner while Davis and Petitioner were working for a

pharmaceutical company. Torres, 122 Hawai#i at 9, 222 P.3d at

416. According to Davis, Petitioner confided to her that he had

been involved in a robbery and insinuated that he had killed one

of the individuals involved. Id. Davis testified that she had

not told anyone because Petitioner had threatened to harm her and

her family if she did. Id.

On March 21, 2007, a jury convicted Petitioner of

murder in the second degree and found that Petitioner possessed,

used, or threatened the use of a revolver during the commission

of a murder, and on May 29, 2007, Petitioner was sentenced by the

court. On June 8, 2007, Petitioner filed a notice of appeal.

D.

On December 15, 2009, the ICA vacated the court’s

judgment and remanded the case for a new trial based on its

conclusion that the court erred in admitting the testimony of

11
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

NCIS Agent Robbins regarding the time-frame during which the

revolver purportedly used in the murder was fired.9 Torres, 122

Hawai#i at 34, 222 P.3d at 441. The ICA also concluded that

(1) there was substantial independent evidence to corroborate

Petitioner’s incriminating statements, and, therefore, the

admission of such statements was correct, id. at 12, 222 P.3d at

419; (2) federal law, as opposed to Hawai#i law, applied to

Petitioner’s motion to suppress, id. at 17, 222 P.3d at 424; and

(3) under federal law, the search of Petitioner’s vehicle was

lawful inasmuch as the search met federal exceptions to the

search warrant requirement, id. at 20-26, 222 P.3d at 427-33.

On April 7, 2010, Petitioner and Respondent each

applied for review of the ICA’s opinion. We rejected

Respondent’s Application for Writ of Certiorari. As indicated,

we accepted Petitioner’s Application to correct the ICA’s opinion

with respect to the admissibility of evidence obtained by federal

officers in a state court prosecution.

9
In its Application, Respondent presented the question of whether
the ICA “gravely erred when it found that the [] court had abused its
discretion in admitting Agent Robbins’s lay opinion testimony regarding the
revolver found in [Petitioner’s] car[.]” The ICA concluded that the court
“abused its discretion in admitting Agent Robbins’s time-frame testimony” that
the revolver recovered from Petitioner was fired “within the same day,
probably about eight hours or so[,]” because (1) Respondent “did not set forth
a sufficient foundation” for the admission of the testimony as a lay opinion,
(2) Agent Robbins’s opinion “required expert testimony[,]” and (3) Respondent
“did not satisfy the foundational requirements for [the] admission of . . .
[Agent Robbin’s] testimony as expert testimony.” Torres, 122 Hawai#i at 28,
222 P.3d at 435. The ICA thus concluded that Respondent “did not satisfy the
foundational requirements for [the] admission” of Agent Robbin’s “time-frame
testimony as expert testimony.” Id.

12
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

II.

Petitioner presents the following questions in his

Application:
I. Whether the ICA gravely erred by holding that
[Respondent] presented substantial independent evidence
which corroborated Davis’[s] hearsay testimony regarding
[Petitioner’s] inculpatory statements[. 10]
II. Whether the ICA gravely erred by determining that
federal law rather than Hawai#i law should apply to
[Petitioner’s] suppression motion and also whether its
decision is inconsistent with State v. Bridges, 83 Haw[ai#i]
187, 925 P.2d [357] (1996)[. 11]
III. Whether the ICA’s decision regarding exceptions to the
search warrant requirement is inconsistent with Arizona v.
Gant, [-- U.S. --,] 129 S. Ct. 1710 (2009)[,] and whether
the ICA gravely erred by determining that other exceptions
to the warrant requirement applied[. 12]

(Emphasis added.)

III.

This court has not yet squarely addressed the

circumstances under which evidence obtained by federal law

enforcement officers must be evaluated in a state prosecution.

In Bridges, this court considered the circumstances under which

“evidence obtained in one state [must] be suppressed in a

criminal prosecution in another state[.]” 83 Hawai#i at 194, 925

P.2d at 364. Bridges noted that the issue “ha[d] been analyzed

10
Petitioner contends that his incriminating statements to Davis
were inadmissible because Respondent failed to introduce sufficient
independent evidence of the trustworthiness of the statements. However, we
agree with the ICA that Respondent did introduce independent evidence
corroborating the essential facts set forth in Petitioner’s statements to
Davis. Torres, 122 Hawai#i at 12-13, 222 P.3d at 419-20.

11
As indicated infra, we review the ICA’s analysis with regard to
the second question presented in his Application.

12
We conclude that Petitioner’s third question must be answered in
the negative. As indicated, we uphold that part of the ICA’s opinion which
affirmed the legality of the searches of Petitioner’s vehicle under federal
law. Moreover, as discussed infra, Gant is not relevant to the instant case.

13
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

in two ways: conflicts of law analysis and an exclusionary rule

analysis.” Id. at 195, 925 P.2d at 365 (internal quotation marks

and citation omitted). “Under a conflicts of law approach,

courts analyze the issue as if it were a civil case and apply the

choice of law method of the forum state to determine whether the

law of the forum state or the situs state should be followed,”

and the “sanctions [] to be used if the appropriate law is

violated.” Id. (internal quotation marks and citation omitted).

Under the alternative exclusionary rule analysis, “the

court first identifies the principles to be served by the

exclusionary rule,[13] and then evaluates how the principles

would be served by exclusion.” Id. (internal quotation marks and

citation omitted). The Bridges court designated the exclusionary

rule analysis, discussed infra, as the “better approach” to

resolving issues regarding whether evidence obtained in another

jurisdiction must be suppressed in a criminal prosecution in this

state. Id.

In addition to the approaches set forth in Bridges, a

third group of jurisdictions apply its exclusionary rules and

constitutional standards to all evidence proffered in its courts,

13
“The freedom of individuals from unreasonable searches and
seizures is a fundamental guarantee provided for by the Fourth Amendment to
the United States Constitution and [a]rticle I, [s]ection 5 of the
Constitution of the State of Hawaii.” State v. Abordo, 61 Haw. 117, 120, 596
P.2d 773, 775 (1979). The “exclusionary rule” effectuates the right protected
by article I, section 5 of the Hawai#i Constitution, by “conferr[ing] upon
defendants in . . . criminal prosecutions[,] the right to have excluded from
trial evidence which has been obtained by means of an unlawful search and
seizure.” Id. (citations omitted).

14
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

without regard to where the evidence was obtained. See State v.

Davis, 834 P.2d 1008, 1012 (Or. 1992) (explaining that because

Oregon’s exclusionary rule protects individual rights, “[i]f the

government seeks to rely on evidence in an Oregon criminal

prosecution, that evidence must have been obtained in a manner

that comports with the protections given to the individual by

Article I, section 9, of the Oregon Constitution”); see also

State v. Cardenas-Alvarez, 25 P.3d 225, 232 (N.M. 2001) (noting

that, pursuant to the state constitution,14 “when a federal agent

effectuates [] an intrusion and the State proffers the evidence

thereby seized in state court,” such evidence is “subject[ed] []

to New Mexico’s exclusionary rule”).

Finally, some jurisdictions have held that evidence

obtained by officers acting lawfully under the law of their own

jurisdictions is admissible in state prosecutions. See Pena v.

State, 61 S.W.3d 745, 754 (Tex. App. 2001) (“Evidence that is

obtained by federal agents acting lawfully and in conformity with

federal authority is admissible in state proceedings.” (Citing

Gutierrez v. State, 22 S.W.3d 75, 84 (Tex. App. 2000).)). “This

has been referred to as the ‘reverse silver-platter’

14
New Mexico Constitution, article II, section 10, provides as
follows:

The people shall be secure in their persons, papers, homes
and effects, from unreasonable searches and seizures, and no
warrant to search any place, or seize any person or thing,
shall issue without describing the place to be searched, or
the persons or things to be seized, nor without a written
showing of probable cause, supported by oath or affirmation.

15
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

doctrine.[15] The underlying concept of the [] doctrine is that

protections afforded by the constitution of a sovereign entity

control the actions only of the agents of that sovereign entity.”

Id. (internal quotation marks and citation omitted). Another

rationale of courts adopting this approach has been that “a

state’s constitution that will not be invoked to control the

conduct of its private citizens will not be applied to control

the conduct of the officers of a foreign jurisdiction.” E.g.,

State v. Mollica, 554 A.2d 1315, 1325 (N.J. 1989).

IV.

Reviewing the aforementioned approaches, we agree with

the ICA insofar as it determined that the exclusionary rule

analysis applies to resolve the issue of whether evidence

obtained by federal officers should be admitted in a state

prosecution. However, Bridges also noted that
one could argue that evidence obtained in Hawai#i by federal
officers in compliance with federal law (and therefore not
illegally obtained) but in violation of some more
restrictive aspect of Hawai#i law should be suppressed in
criminal prosecutions in Hawai#i state courts. See State v.

15
The Supreme Court had once held that evidence unlawfully obtained
by state officers was admissible in federal court via a “silver platter.”
Lustig v. United States, 338 U.S. 74, 78-79 (1949). The Court had reasoned
that evidence obtained by state officers was outside the Fourth Amendment
constitutional inquiry. See Weeks v. United States, 232 U.S. 383, 398 (1914).
This doctrine had been referred to as the “silver platter doctrine.” Notably,
in Elkins v. United States, 364 U.S. 206, 223 (1960), the Supreme Court
abolished this doctrine as unconstitutional. The Court held that “evidence
obtained by state officers during a search which, if conducted by federal
officers, would have violated the defendant’s immunity from unreasonable
searches and seizures under the Fourth Amendment is inadmissible . . . in a
federal criminal trial.”
The “reverse silver platter” doctrine refers to instances where
state courts admit evidence obtained by federal officers in a manner that
would not violate federal authority, but would violate their own state law or
the state constitution. See Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 1.5(c), 175 (4th ed. 2004).

16
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Rodriguez, . . . 823 P.2d 1026, 1029-30 ([Or. Ct. App.]
1992) [hereinafter, “Rodriguez I”], rev’d on other grounds
[by State v. Rodriguez,] . . . 854 P.2d 399, 403-04 ([Or.]
1993) [hereinafter, “Rodriguez II”]; cf. [T. Quigley, “Do
Silver Platters Have a Place in State-Federal Relations?
Using Illegally Obtained Evidence in Criminal Prosecutions,”
20 Ariz. St. L.J. 285, 321-25 (1988)] (“In the case of
evidence illegally seized by federal officers that is
admissible in federal court because of an exception to the
federal exclusionary rule, states should exclude the
evidence consistent with their own exclusionary rule.”). In
the instant case, however, we need not, and do not, decide
that issue.

80 Hawai#i at 199 n.15, 925 P.2d at 369 n.15. In this aspect,

Bridges recognized an approach akin to the third group of

decisions that held all evidence proffered in the state courts

were subject to the exclusionary rule standards under the State’s

constitution.

In this connection, in support of footnote 15, Bridges

cited to Rodriguez I, 823 P.2d at 1029-30.16 In addressing the

defendant’s argument that his arrest by a federal agent was not

valid under the Oregon Constitution because the federal

administrative arrest warrant was not supported by oath and

affirmation, the Court of Appeals of Oregon noted that Oregon’s

constitutional provision, requiring that all warrants be

supported by probable cause, oath, and affirmation, “does not

limit its application.” Id. at 1029. That court declared that,

“[f]or the purpose of prosecuting state offenses in state courts,

the validity of an arrest is measured by state standards.” Id.

According to Rodriguez I, as to “state prosecutions in state

16
The Oregon Supreme Court’s decision, which overruled the decision
of the Court of Appeals of Oregon on other grounds, is discussed infra.

17
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

court[s], an arrest warrant is invalid if it is not supported by

oath or affirmation.” Id. Bridges thus acknowledged the

persuasiveness of the third approach. Thus, for the reasons

discussed infra, we must disagree with the ICA’s holding that our

exclusionary rule analysis “supports the application of federal

law” alone in the instant case. Torres, 122 Hawai#i at 18, 222

P.3d at 425.

V.

Jurisdictions under this third approach have held that,

where evidence obtained by federal agents is sought to be

admitted in a state court prosecution, the admission of such

evidence requires consideration of the state constitution. For

example, in Rodriguez II, 854 P.2d at 400, the “[d]efendant [was]

an alien who had been convicted of possession of a controlled

substance” and, as a result, was facing deportation. An agent of

the United States Immigration and Naturalization Service (INS)

learned of the defendant’s conviction and obtained an

administrative arrest warrant for his arrest. Id. While

attempting to execute the warrant, the INS agent obtained

permission from the defendant to search the apartment. Id. at

400-01. The search revealed two guns, id. at 401, and when

questioned, the defendant “stated that one of the guns was his”

and that “the other . . . would have his fingerprints on it.”

Id.

18
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

The defendant was subsequently charged as a former

convict in possession of a firearm under Oregon state law. Id.

Prior to trial, the defendant moved to suppress both the weapons

and his statements, arguing that “the administrative arrest

warrant was not supported by oath or affirmation, as required by

the Oregon and United States Constitutions, that the arrest was

therefore unlawful, and that the guns and statements should be

suppressed as the ‘fruit’ of the unlawful arrest.” Id. (footnote

omitted). The trial court denied the defendant’s motion. Id.

On appeal in Rodriguez I, as noted supra, the Oregon

Court of Appeals concluded that the defendant’s arrest was

unlawful because the arrest warrant was not valid under the

Oregon Constitution, and the arrest was not a valid warrantless

arrest. Id. The Oregon Supreme Court overturned the decision of

the court of appeals on other grounds, but likewise held that

evidence sought to be admitted in a state prosecution must

comport with the Oregon Constitution. Id. at 402.17 That court

stated:
“If the government seeks to rely on evidence in an Oregon
criminal prosecution, that evidence must have been obtained
in a manner that comports with the protections given to the
individual by article I, section 9,[ 18] of the Oregon

17
The Oregon Supreme Court ultimately determined that the evidence
was admissible under the Oregon Constitution because the defendant “consented
to the search that uncovered the guns, and that consent was not obtained by
exploitation of the unlawful conduct[.]” 854 P.2d at 405.

18
Article I, section 9 of the Oregon Constitution provides:

No law shall violate the right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable search, or seizure; and no warrant shall issue
(continued...)

19
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Constitution. It does not matter where that evidence was
obtained (in-state or out-of-state), or what governmental
entity (local, state, federal, or out-of-state) obtained it;
the constitutionally significant fact is that the Oregon
government seeks to use the evidence in an Oregon criminal
prosecution. Where that is true, the Oregon constitutional
protections apply.”

Id. at 403 (quoting Davis, 834 P.2d at 1012) (emphasis added).

Similarly, in Cardenas-Alvarez, 25 P.3d at 227, a

federal agent seized eighty-five pounds of marijuana at a border

patrol checkpoint north of the Mexican border. At trial before

the New Mexico state court, the defendant moved to suppress the

evidence arguing, inter alia, that the evidence was obtained in

violation of the New Mexico Constitution. Id. The trial court

denied the defendant’s motion and that decision was reversed by

the court of appeals. On certiorari, the Supreme Court of New

Mexico held that although the federal agent did not violate the

federal constitution, the seizure of the evidence violated the

New Mexico Constitution and, therefore, the evidence should be

excluded in state court. Id.

The Supreme Court of New Mexico stated that it found

“no mandate in the text of [a]rticle II, [s]ection 10,[19] nor in

[its] jurisprudence interpreting th[e] clause, to selectively

protect New Mexico’s inhabitants from intrusions committed by

18
(...continued)
but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched and the
person or thing to be seized.

Id. at 402.

19
See supra note 14 for the text of article II, section 10 of the
New Mexico Constitution.

20
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

state but not federal governmental actors.” Id. at 232.

Cardenas-Alvarez explained that, “[u]nlike the private actors[,]

. . . federal agents exercise jurisdiction over New Mexicans and

possess the authority to systematically subject [New Mexico]

inhabitants to searches, seizures and other interferences.” Id.

According to the Supreme Court of New Mexico, “[a] federal agent

who wields these powers unreasonably commits precisely the sort

of ‘unwarranted governmental intrusion’ against which the New

Mexico Constitution ensures.” Id. As said supra, it was held

that New Mexico’s exclusionary rule would be applied in the state

court “when a federal agent effectuat[ed] such an intrusion[.]”

Id.

In People v. Griminger, 524 N.E.2d 409, 410 (N.Y.

1988), federal agents obtained a search warrant from a federal

magistrate to search the defendant’s home for narcotics based on

information provided by an undisclosed informant. The search was

executed by federal agents and Nassau County (New York) police

officers. Id. “The search produced 10 ounces of marijuana, over

$6,000 in cash and drug-related paraphernalia[,]” and the

defendant was subsequently charged with criminal possession of

marijuana. Id. The issue before the Court of Appeals of New

York was whether the two-prong test set forth in Aguilar v.

Texas, 378 U.S. 108 (1964), and Spinelli v. United States, 393

U.S. 410 (1969), which New York had “adopted . . . as a matter of

State constitutional law,” or the totality-of-the-circumstances

21
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

test adopted by the United States Supreme Court in Illinois v.

Gates, 462 U.S. 213 (1983), “should be employed in determining

the sufficiency of an affidavit submitted in support of a search

warrant application[,]” Griminger, 524 N.E. 2d at 409.

The New York Court of Appeals declined to adopt the

Gates test, and reaffirmed the “Aguilar-Spinelli two-prong

test[.]” Id. Additionally, the New York Court of Appeals

rejected the prosecution’s alternative argument that “[f]ederal

law should apply . . . since the warrant was issued by a

[f]ederal [m]agistrate and executed by [f]ederal agents.” Id. at

412. The Griminger court explained that a defendant tried under

the state’s penal law should be afforded the benefit of the

state’s “search and seizure protections[.]” Id. (emphasis

added).

VI.

The previous cases indicate that under the third

approach, evidence obtained by federal officers must have been

obtained lawfully under the constitutions of the respective

states before being admitted in a state court prosecution.

Similarly, some courts have held that where evidence obtained in

one state (the situs state) is sought to be admitted in another

state (the forum state), the forum state’s constitution and laws

must be followed.

22
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

People v. Taylor, 804 P.2d 196, 198 (Colo. App. 1990),

concerned whether the phone records seized by North Dakota

officials in North Dakota should be suppressed in a Colorado

state court prosecution. In that case, the defendant and her

husband owned a bar in Durango, Colorado, and were suspected of

arranging for others to cause an explosion in another bar located

in Durango. Id. In the ensuing investigation, “a search

warrant, based upon an affidavit drafted by a Colorado

prosecutor, was issued by a North Dakota court to obtain the

defendant’s telephone records.” Id. “Pursuant to the search

warrant, North Dakota officials seized the defendant’s phone

records, . . . and the records were subsequently admitted into

evidence” at the defendant’s Colorado trial. Id.

On appeal, the Colorado Court of Appeals distinguished

precedent in which the Supreme Court of Colorado held that in a

state court prosecution, the exclusionary rule did not require

suppression of a defendant’s confession that was obtained in

violation of the Federal Rules of Criminal Procedure. Id. The

Colorado Court of Appeals pointed out that, unlike that case, the

defendant in the case before it, had “assert[ed] a constitutional

violation and not simply the violation of a rule of criminal

procedure.” Id. That court concluded that “if there was a

violation of the defendant’s Colorado constitutional rights, then

exclusion of the evidence would be mandated even though the

23
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

evidence may have been properly seized under the laws of the

situs state.”20 Id.

In Stidham v. State, 608 N.E.2d 699, 700 (Ind. 1993),

the defendant appealed his conviction for, inter alia, murder.

The incident giving rise to the defendant’s murder charge

occurred in Indiana, but the defendant was arrested in Illinois

after driving there following the incident. Id. The defendant

made incriminating remarks during the course of his arrest.

After contacting police officers in Indiana, the Illinois

officers gave the defendant Miranda warnings and questioned the

defendant, who was seventeen years old. Id.

On appeal, the Indiana Supreme Court noted that under

Indiana law, a statement made by a person under the age of

eighteen is not admissible unless counsel, the minor’s custodial

parent, guardian, or guardian ad litem is present, and both the

minor and his representative waive the minor’s right to remain

silent. Id. That court rejected the prosecution’s contention

that because the statement of the defendant was lawfully obtained

in Illinois, i.e., the situs state, it could be admitted in the

Indiana court. Id. at 701.

The Stidham court explained that it was “fully aware of

the cases . . . wherein other jurisdictions have held that in

situations such as this, the statement would be admissible in the

20
That court ultimately concluded that the telephone records were
obtained lawfully under the Colorado Constitution. See Taylor, 804 P.2d at
198-99.

24
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

prosecuting state.” Id. (citations omitted). However, Stidham

rejected the holdings in those cases, concluding that the proper

inquiry was “the admissibility of [a] statement obtained in

Illinois in a prosecution taking place in Indiana.” Id. The

Indiana Supreme Court ultimately held that the confession made by

the defendant in Illinois after he was given his Miranda warnings

was inadmissible under the Indiana statute. Id.; see also State

v. Camargo, 498 A.2d 292, 296 (N.H. 1985) (holding that evidence

obtained by a Massachusetts police officer was not admissible in

New Hampshire because the “warrantless seizure and subsequent

search of the defendant’s vehicle were unreasonable under the

State Constitution because no exigent circumstances existed to

justify a warrantless search”); State v. Platt, 574 A.2d 789,

791-95 (Vt. 1990) (analyzing the legality of the seizure of the

defendant’s car by Massachusetts police officers under the

Vermont Constitution).

VII.

While we do not adopt the approach set forth in the

foregoing cases in its entirety, those cases would appear to have

merit. The ICA had concluded that under Bridges, federal law

applied to the searches at issue in the instant case. Torres,

122 Hawai#i at 18, 222 P.3d at 425. The ICA explained that “PHNB

is akin to a separate jurisdiction or a situs state for purposes

of the Bridges analysis[.]” Id. at 18, 222 P.3d at 425. But, to

reiterate, Bridges acknowledged that “one could argue that

25
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

evidence obtained in Hawai#i by federal officers in compliance

with federal law . . . but in violation of . . . Hawai#i law

should be suppressed in criminal prosecutions in Hawai#i state

courts.” 83 Hawai#i at 199 n.15, 925 P.2d at 369 n.15.

In the ICA’s view, it was not clear that footnote 15

“contemplated the situation presented here, where the activities

of the federal officers took place on a closed military base that

was subject to the control of a military commander and was within

the . . . jurisdiction of the United States.” Torres, 122

Hawai#i at 20, 222 P.3d at 427. Thus, the ICA concluded that the

“Bridges analysis, and the Bridges rationale for applying the law

of the situs state support[ed] the application of federal law in

this case.” Id. However, Bridges’ reliance on Rodriguez I

reveals that Bridges did refer to circumstances presented in the

instant case beyond simply the law of the situs state. In that

light due consideration must be given to the third approach.

VIII.

An exclusionary rule analysis requires us to consider

the principles served by that rule. See supra. Bridges

identified three purposes underlying our exclusionary rule:

judicial integrity, protection of individual privacy, and

deterrence of illegal police misconduct. This court stated that
[i]n Hawai#i, we have recognized a number of purposes
underlying our exclusionary rule: (1) judicial integrity,
State v. Pattioay, 78 Hawai#i 455, 468, 896 P.2d 911, 924
(1995) (“to ensure that evidence illegally obtained by
government officials or their agents is not utilized in the
administration of criminal justice through the courts”);
(2) individual privacy, [Lopez], 78 Hawai#i [at] 446, 896
P.2d [at] 902 [] (“to protect the privacy rights of our

26
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

citizens” (emphasis omitted)); and, of course,
(3) deterrence, Pattioay, 78 Hawai#i at 468, 896 P.2d at 924
(“to deter illegal police conduct”).

83 Hawai#i at 195, 925 P.2d at 365.

A.

“The ‘judicial integrity’ purpose of the exclusionary

rule is essentially that the courts should not place their

imprimatur on evidence that was illegally obtained by allowing it

to be admitted into evidence in a criminal prosecution.” Id. at

196, 925 P.2d at 366. According to Bridges, “[a]s a general

rule, the question of whether given conduct is legal is answered

by looking to the laws of the jurisdiction in which that conduct

was performed, i.e., the situs state.” Id. (citation omitted).

Consequently, Bridges reasoned that because in that case, “[t]he

evidence was apparently obtained in compliance with the laws of

the state of California[,] . . . under the general rule,”

admission of the evidence “would not cause a loss of judicial

integrity.” Id.

Relying on Bridges, the ICA noted that (1) “[n]o

Hawai#i law enforcement officer was involved in the searches of

[Petitioner’s] car”; and (2) “[t]he searches were conducted on a

federal military base by federal officers whose activities were

governed by federal law[.]” Torres, 122 Hawai#i at 19, 222 P.3d

at 426. The ICA thus concluded that, “[a]s long as the evidence

was obtained by the federal officers in compliance with federal

law, Hawai#i courts would not be placing their imprimatur on

27
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

evidence that was illegally obtained by allowing the evidence to

be admitted.” Id.

Although Bridges stated that it was applying the

exclusionary rule analysis, Bridges’ consideration of only the

jurisdiction in which the evidence was obtained seemingly

reflected a conflicts of law approach. See Jennifer Friesen,

State Constitutional Law § 11-3(d)(3) n.85.1 (2d ed. Supp. 1999)

(citing Bridges as a conflicts of law case). Indeed, the cases

Bridges cited to support its conclusion that “the question of

whether given conduct is legal is answered by looking to the laws

of the jurisdiction in which that conduct was performed, i.e.,

the situs state[,]” 83 Hawai#i at 196, 925 P.2d at 366, did not

apply an exclusionary rule analysis. See United States v.

Gerena, 667 F. Supp. 911, 919 (D. Conn. 1987) (noting that with

respect to state conflicts, under a conflicts of law approach,

“states generally determine the legality of alleged police

conduct through application of the law of the place where the

conduct occurred”); Menefee v. State, 640 P.2d 1381, 1384 (Okla.

Crim. App. 1982) (noting, without regard to its exclusionary

rule, that “it is well established in federal and other state

jurisdictions that the law of the state in which a warrantless

arrest takes place determines the validity of the arrest”)

(citations omitted); accord State v. Cooper, 573 P.2d 1006, 1008

(Kan. 1977).

28
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

It is manifest that Hawai#i courts are bound to follow

the Constitution of Hawai#i. Thus, with regard to judicial

integrity, Bridges failed to consider that if state courts

admitted evidence in a state prosecution that was obtained in a

manner that would be unlawful under our constitution, our courts

would necessarily be placing their imprimatur of approval on

evidence that would otherwise be deemed illegal, thus

compromising the integrity of our courts. This court has

acknowledged that our exclusionary rule “recognize[s] that the

courts of this State have the inherent supervisory power over

criminal prosecutions to ensure that evidence illegally obtained

by government officials or their agents is not utilized in the

administration of criminal justice through the courts.”

Pattioay, 78 Hawai#i at 468, 896 P.2d at 924. In light of the

foregoing considerations, we conclude that where the admission of

evidence obtained in another jurisdiction would violate our

constitution, the court must give substantial weight21 to the

21
Our courts regularly apply similar standards. See e.g., Russell
v. Blackwell, 53 Haw. 274, 280, 492 P.2d 953, 957 (1972) (“The fact that the
defendant was represented by counsel and acted after consultation with counsel
is to be given substantial weight in determining the issue of voluntariness of
plea.”) (Internal quotation marks, parenthesis, ellipsis, and citations
omitted.) (Emphasis added.); see also State v. Wakisaka, 102 Hawai#i 504, 514,
78 P.3d 317, 327 (2003) (stating that a defendant raising a claim of
ineffective assistance of counsel has the burden of establishing “1) that
there were specific errors or omissions reflecting counsel’s lack of skill,
judgment, or diligence; and 2) that such errors or omissions resulted in
either the withdrawal or substantial impairment of a potentially meritorious
defense”) (emphasis added); HRS § 706-625(3) (Supp. 2010) (“The court shall
revoke probation if the defendant has inexcusably failed to comply with a
substantial requirement imposed as a condition of the order or has been
convicted of a felony.) (Emphasis added.) In plain language, “substantial”
means “significantly great” and “considerable in quantity.” Merriam Webster’s
Collegiate Dictionary 1174 (10th ed. 1989).

29
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

fact that such admission may compromise the judicial integrity of

our courts.22

B.

According to Bridges, a defendant’s privacy rights are

to be found within the realm of the situs court jurisprudence

inasmuch as a defendant would ordinarily look to that

jurisdiction to protect his or her privacy rights and would

reasonably expect government conduct to conform to the laws of

that jurisdiction. See 83 Hawai#i at 198-99, 925 P.2d at 368-69.

This would seem to be logical where the case is tried in such a

foreign jurisdiction so that protection would be afforded by the

courts of that jurisdiction. However, Bridges also indicated

that a defendant’s privacy rights may be defined under the

Hawai#i Constitution inasmuch as “one could argue” that evidence

obtained lawfully in Hawai#i under federal law but in violation

of Hawai#i law should be suppressed in a state prosecution. Id.

at 199 n.15, 925 P.2d at 369 n.15.

This court has determined that “‘[u]nlike the

exclusionary rule on the federal level, Hawai#i’s exclusionary

rule serves not only to deter illegal police conduct, but to

protect the privacy rights of our citizens.’” State v. Kahoonei,

83 Hawai#i 124, 131, 925 P.2d 294, 301 (1996) (quoting Lopez, 78

22
We note that, where evidence is recovered in another jurisdiction,
there may be circumstances in which an intrusion upon a defendant’s privacy
rights, as defined by Hawai#i law, may be of a minimal nature, such that
admission of the evidence would not substantially weigh on judicial integrity.

30
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Hawai#i at 445, 896 P.2d at 901); see also State v. Dixon, 83

Hawai#i 13, 23, 924 P.2d 181, 191 (1996) (stating that “article

I, section 7 of the Hawai#i Constitution provides broader

protection than the [F]ourth [A]mendment to the United States

Constitution because it also protects against unreasonable

invasions of privacy”); State v. Navas, 81 Hawai#i 113, 123, 913

P.2d 39, 49 (1996) (stating that “article I, section 7 of the

Hawai#i Constitution” provides a “more extensive right of privacy

. . . than that of the United States Constitution”); State v.

Tanaka, 67 Haw. 658, 662, 701 P.2d 1274, 1276 (1985) (“In our

view, article I, § 7 of the Hawai#i Constitution recognizes an

expectation of privacy beyond the parallel provisions in the

Federal Bill of Rights.”); Hanson I, 97 Hawai#i at 82, 34 P.3d at

12 (“The Hawai#i Supreme Court has concluded that a person’s

expectation of privacy under article 1, § 7 of the Hawai#i

Constitution is greater than that under the [F]ourth [A]mendment

to the United States Constitution.”) (Citation omitted.)

Because our exclusionary rule is unlike the exclusionary rules of

the federal government and some other jurisdictions insofar as it

guarantees individual privacy rights, consideration of the

Hawai#i Constitution and applicable case law is mandated.

Consequently, it would seem apparent that the question

of whether or not the privacy rights of a defendant who is tried

in our courts and under our penal law have been violated, should

not be governed by the law and constitution of jurisdictions that

31
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

have deemed privacy rights irrelevant.23 To reiterate, our

exclusionary rule seeks to protect the individual privacy rights

of the defendant. Because those rights necessarily stem from our

state constitution, our exclusionary rule analysis requires the

defendant’s privacy rights, as defined by the Hawai#i

Constitution and applicable case law, be given substantial weight

when another jurisdiction’s law is involved.

C.

The final purpose of the exclusionary rule is

deterrence. This court has defined deterrence as “the

expectation that after evidence is suppressed based on [a]

particular police conduct[,] . . . in the future, police officers

will refrain from that type of conduct.” Bridges, 83 Hawai#i at

199, 925 P.2d 369. It is plain that the suppression of evidence

obtained by Hawai#i law enforcement officers in another

jurisdiction, where such evidence was unlawfully seized under the

laws or Constitution of Hawai#i, would deter Hawai#i law

enforcement officers from engaging in that type of conduct in the

future.

In this instance, however, as the ICA explained,

“[b]ecause no Hawai#i law enforcement officer was involved[,]

. . . there was no possible misconduct by Hawai#i law enforcement

23
It may be noted that applying the laws of the situs may be
difficult, if not impossible, where the jurisdiction has no law that could
resolve the issues raised in a defendant’s motion to suppress inasmuch as the
courts of this state have no authority to declare the laws of another
jurisdiction.

32
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

officers to deter.” Torres, 122 Hawai#i at 19, 222 P.3d at 426.

The ICA thus held that “[a]pplying Hawai#i law to suppress the

results of the searches would have little, if any, deterrent

effect on the federal officers.” Id. However, the application

of the Hawai#i exclusionary rule factors in future cases would

deter any federal and state cooperation “to evade state law.”

Friesen, supra, § 11-3(d)(3). In sum, considerations of judicial

integrity, individual privacy, and deterrence apply to

Petitioner’s motion to suppress.

IX.

As indicated, Bridges does not reflect a consistent

application of the exclusionary rule analysis.24 Therefore, it

is overruled insofar as it is inconsistent with this opinion.

Hence, we must respectfully disagree with the ICA’s analysis in

the instant case insofar as it relied on Bridges. We therefore

conclude that, where evidence sought to be admitted in state

court is the product of acts that occurred on federal property or

in another state, by Hawai#i law enforcement officers or officers

of another jurisdiction, due consideration, as we have set forth

24
This court has said that Hawai#i’s exclusionary rule serves to
protect the privacy rights of persons within Hawai#i’s jurisdiction, not only
to deter illegal police conduct. See Lopez, 78 Hawai#i at 445, 896 P.2d at
901. Thus, if, as Bridges stated, the exclusionary rule analysis looks to the
laws of the jurisdiction in which the conduct occurred, our courts would not
need to consider whether the defendant’s individual privacy rights had been
compromised when such evidence is introduced in a Hawai#i state prosecution.
Hence, Bridges’ consideration of only the foreign state’s law rendered the
application of the exclusionary rule analysis in that case internally
inconsistent, insofar as Bridges stated that individual privacy rights under
the Hawai#i Constitution should be considered.

33
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

herein, must be given to the Hawai#i Constitution and applicable

case law.

X.

A.

We next consider whether the searches of Petitioner’s

vehicle were valid under the Hawai#i Constitution,

notwithstanding the fact that they were lawful under the United

States Constitution. In the instant case, we agree with the

court’s conclusion that Petitioner’s conduct of driving onto PHNB

demonstrated that he consented to a search of his person and

property under his control. See conclusion 5.

“[C]onsent is an exception to and dispenses with the

requirement of a warrant.” Hanson II, 97 Hawai#i at 76, 34 P.3d

at 6 (citations omitted). In Hanson II, when the defendant,

scheduled to fly on a Hawaiian Airlines flight, arrived at the

Hawaiian Airlines ticket counter to check in, a Honolulu Airport

security officer placed the defendant’s toolbox through an

“x-ray” machine but was unable to identify everything within the

toolbox. Id. at 72, 34 P.3d at 2. When the defendant opened the

tool box for the security officer, a tan plastic bag wrapped in

duct tape was discovered, the contents of which could not be

identified. Id. The security officer opened the plastic bag and

discovered a second plastic bag. That bag contained a white

cardboard box from which a black handgun was recovered. Id. The

defendant, who was charged with failing to register a firearm,

34
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

moved to suppress all evidence obtained as a result of the

search. Id.

Although the defendant did not expressly indicate that

he consented to a search of his toolbox or the contents therein,

this court held that inasmuch as “[c]onsent may also be implied

from an individual’s words, gestures, or conduct[,]” the

defendant had consented to the search of his tool box in

voluntarily surrendering it for inspection. Id. at 75, 34 P.3d

at 5 (internal quotation marks and citations omitted). Hanson II

explained that “implied consent to an airport security search may

be imputed from posted notices” and “the nature of airport

security measures.” Id. (citations omitted). This court

additionally held that “[b]ecause the purpose of a security

inspection can only be effectuated if the items subject to search

can be identified, searches of such belongings must reasonably

extend to those containers whose contents cannot be discerned.”

Id.

As in Hanson II, in the instant case, there was a clear

and visible sign at the entrance of PHNB which stated:

“Authorized Entry Onto This Installation Constitutes Consent To

Search Of Personnel And The Property Under Their Control.

Internal Security Act of 1950 Section 21; 50 U.S.C. 7979.”

Finding 6. Any person who, after reading the sign, decided not

to consent to a search of his or her person or property, could

turn around and leave without having his or her person or

35
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

property searched. See finding 8. The guard shack, which a

person would have passed in order to gain entrance to the base,

was located approximately 50 feet beyond the sign, giving a

person ample opportunity to turn around if he or she did not want

to be subjected to a search of his or her person or property.

See finding 9.

According to Petitioner, although there was a sign

posted 50 feet before the entrance to PHNB, he was not given the

opportunity to decide whether to enter PHNB and turn around at

the guard shack because Officer Aguilar “waved him down as he was

entering the gate and then stopped his car just after the guard

shack.” However, in his Application, Petitioner did not

challenge any of the findings of the court, and, therefore, such

findings are binding on this court. In any event, there is

nothing to suggest that Petitioner indicated to Officer Aguilar

in any way, that he did not want to enter PHNB and instead,

wished to turn around at the guard shack. Officer Aguilar saw

Petitioner in his vehicle, waiting to enter PHNB, and Petitioner

did in fact enter PHNB. See findings 16, 17. It was only after

Petitioner entered PHNB that Officer Aguilar motioned for him to

stop his vehicle, and only after he was informed that NCIS wanted

to talk to him about the incident that Petitioner began to

struggle to restart the vehicle, in a seeming attempt to exit

PHNB. See finding 17, 18.

36
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Inasmuch as “[c]onsent may . . . be implied from an

individual’s words, gestures, or conduct[,]” Hanson II, 97

Hawai#i at 75, 34 P.3d at 5, we conclude that Petitioner’s

consent to the search of his vehicle may be implied from his act

of driving past the guard shack and onto PHNB, and imputed from

the posted notice indicating that entry onto PHNB constituted

consent to a search.25

B.

Petitioner noted that Sergeant Rozkiewicz and Officer

Aguilar testified there were search directives for random

searches. We find federal search directives irrelevant in this

case inasmuch as we conclude that the inspection of Petitioner’s

vehicle was valid based on Petitioner’s implied consent to such

search.

25
Federal courts have likewise held that consent to a search of
one’s vehicle may be implied from entry onto a closed military base. See
Morgan v. United States, 323 F.3d 776, 778 (9th Cir. 2003) (stating that
because military bases “often warn of the possibility of search as a condition
to entry, a warrantless search of a person seeking to enter a military base
may be deemed reasonable based on the implied consent of the person
searched”); Jenkins, 986 F.2d at 79 (stating that “[c]onsent is implied by the
totality of all the circumstances[,]” including “[t]he barbed-wire fence, the
security guards at the gate, the sign warning of the possibility of search,
and a civilian’s common-sense awareness of the nature of a military base[,]”
all of which “combine to puncture any reasonable expectations of privacy for a
civilian who enters a closed military base[]”) (internal quotation marks and
citations omitted); United States v. Ellis, 547 F.2d 863, 864 (5th Cir. 1977)
(“Consent to search a motor vehicle while on board a Naval Air Station was
validly obtained through issuance, acceptance and display of a visitor’s pass”
and therefore, “marijuana disclosed by a warrantless search made pursuant to
this consent was legally obtained”); United States v. Mathews, 431 F. Supp.
70, 73 (D.C. Okla. 1976) (concluding that because there were signs at the
entrance of the air force base indicating the property or personnel within the
control of those entering the base may be subject to search, “defendants had
consented to their vehicle and persons being searched by entering the Military
Reservation”).

37
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Also, Petitioner does not point to any directive

alleged to have been violated. The court’s unchallenged finding

indicates that “[a]fter moving the vehicle, [Sergeant] Rozkiewicz

followed base police procedures in securing the vehicle, which

required police to check a vehicle that was going to be left

unattended on base, for flammable or volatile substances such as

gasoline, kerosene and explosives.” Finding 23.26 For the

reasons set forth supra, we likewise conclude that the inspection

of Petitioner’s vehicle by Sergeant Rozkiewicz was not

unreasonable under the Hawai#i Constitution.

XI.

Having determined that the inspection of Petitioner’s

vehicle by Sergeant Rozkiewicz was not unreasonable under the

Hawai#i Constitution, we consider the legality of the second

search of Petitioner’s vehicle. In his Application, Petitioner’s

only argument with respect to the second search is that it was

26
Federal courts generally uphold searches that take place on closed
military bases as reasonable, without regard as to whether conducted pursuant
to federal search directives or procedures, and even in the absence of any
particularized suspicion. Jenkins, 986 F.2d at 78 (stating that “searches on
closed military bases have long been exempt from the usual Fourth Amendment
requirement of probable cause”) (citations omitted); Ellis, 547 F.2d at 866
(stating that “[t]he right to make a search [on a closed military base]
pursuant to [] consent does not turn on the presence of probable cause”);
United States v. Rogers, 549 F.2d 490, 493 (8th Cir. 1976) (upholding a
warrantless search of the defendant’s vehicle based on exigent circumstances,
and explaining that “because the search occurred on . . . a closed military
base, there is even less reason to question the propriety of the search”);
United States v. Vaughan, 475 F.2d 1262, 1264 (10th Cir. 1973) (stating that
once the defendant entered the closed military base, “a search conducted
without probable cause and without consent could be proper” and “the
submission to search could be imposed as a valid condition to gaining access
to the base”); United States v. Grisby, 335 F.2d 652, 654-55 (4th Cir. 1964)
(stating that “[t]he authority . . . of a military picket to search any
automobile entering a military reservation is widely recognized and has been
judicially upheld”).

38
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

“tainted” by the first search, i.e., the inspection of

Petitioner’s vehicle by Sergeant Rozkiewicz. According to

Petitioner, “[i]f the first search was unconstitutional,

[Respondent] must show that the subsequent search is not the

fruit of the prior search” or at least, “the dissipation of the

taint.” (Internal quotation marks and citation omitted.)

Petitioner maintains that because “the affidavit submitted in

support of the Command Authorization relied heavily on [Sergeant]

Rozkiewicz’s statements regarding his observations during the

first search[,]” the search conducted pursuant to the Command

Authorization “was still tainted by the prior illegal search and

was therefore invalid.” (Citation omitted.)

With respect to Petitioner’s argument that the second

search was the “fruit” of or tainted by the inspection of his

vehicle by Sergeant Rozkiewicz, because we have held that the

first search did not violate the Hawai#i Constitution, it follows

that the evidence obtained pursuant to the Command Authorization

was neither the “fruit” of an unlawful search, nor tainted by the

inspection of Petitioner’s vehicle by Sergeant Rozkiewicz.

Alternatively, by entering onto PHNB, Petitioner consented to the

second search of his vehicle as well as the inspection of his

vehicle by Sergeant Rozkiewicz.

XII.

Inasmuch as Petitioner’s privacy rights under the

Hawai#i Constitution were not invaded by the searches in this

39
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

case, the individual privacy rights prong of our exclusionary

rule analysis does not weigh in favor of suppression. In that

vein, judicial integrity would not be compromised. Thus, the

evidence is admissible against Petitioner in his re-trial.

XIII.

Petitioner’s third question in his Application contends

that the ICA’s decision was inconsistent with Gant, -- U.S. at

--, 129 S.Ct. at 1714, and that the ICA gravely erred in

determining that other exceptions to the warrant requirement

applied in the instant case. It is observed that Gant has raised

some questions about the viability of the Supreme Court’s holding

in New York v. Belton, 453 U.S. 454, 460 (1981), “that when a

policeman has made a lawful custodial arrest of the occupant of

an automobile, he may, as a contemporaneous incident of that

arrest, search the passenger compartment of that automobile.”

(Footnotes omitted.)

In Gant, the defendant “was arrested for driving [with]

a suspended license, handcuffed, and locked in a patrol car

before officers searched his car and found cocaine in a jacket

pocket.” -- U.S. at --, 129 S.Ct. at 1714. The Court held “that

Belton does not authorize a vehicle search incident to a recent

occupant’s arrest after the arrestee has been secured and cannot

access the interior of the vehicle.” Id. Gant additionally

“conclude[d] that circumstances unique to the automobile context

justify a search incident to arrest when it is reasonable to

40
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

believe that evidence of the offense of arrest might be found in

the vehicle.” Id.

As indicated previously, we affirm the ICA’s decision

insofar as it upheld the searches of Petitioner’s vehicle as

valid under federal law and the United States Constitution. We

observe that the ICA did not determine that any of the searches

of Petitioner’s vehicle were justified on the ground that the

search was incident to a lawful arrest and so did not consider

Gant. In any event, Gant is not applicable to the instant case

inasmuch as it is distinguishable. Unlike in Gant, the searches

of Petitioner’s car took place on a closed military base such

that consent to such searches may be implied. Morgan, 323 F.3d

at 778 (holding that “consent to a search of one’s vehicle may be

implied from entry onto a closed military base”); see also

Jenkins, 986 F.2d at 79 (stating that “[c]onsent is implied by

the totality of all the circumstances[,]” including “[t]he

barbed-wire fence, the security guards at the gate, the sign

warning of the possibility of search, and a civilian’s

common-sense awareness of the nature of a military base[,]” all

of which “combine to puncture any reasonable expectations of

privacy for a civilian who enters a closed military base[]”).

Because we have concluded that upon entering PHNB Petitioner

impliedly consented to a search of himself and his property, we

need not reach the issues raised in Gant with respect to the

Hawai#i Constitution.

41
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

XIV.

Based on the foregoing, we correct the ICA’s opinion

insofar as it concluded that federal law alone was to be

considered in ruling on Petitioner’s motion to suppress. We

affirm the December 5, 2006 order of the court denying

Petitioner’s motion to suppress under federal law and the Hawai#i

Constitution. The January 7, 2010 Judgment of the ICA is

accordingly affirmed.

Cynthia A. Kagiwada for /s/ Simeon R. Acoba, Jr.
petitioner and respondent/
defendant-appellant. /s/ James E. Duffy, Jr.

Deirdre Marie-Iha, Deputy /s/ Richard W. Pollack
Solicitor General, and
Susan Y.N. Won, Deputy /s/ Patrick W. Border
Attorney General, State of
Hawai#i, for respondent and
petitioner/plaintiff-appellee.

42