State v. Rodrigues

F()R PUBLICA'I"ION lN WES"I"S HA\¢VAI°I Rli`,P(')_R'l`S ANI) 'P.»A.C‘IFIC REP()R'I"IZR

IN THE INTERMEDIATE COURT OF APPEALS

or THs sTATE oF HAwAr: ‘ 7§
-~~oOo~~~

sTATE oF HAwAr:, P1aint1ff~Appe11anc, v. pp di
MARCo RoDRIGuBs, Defendanc-Appe11ee t 1 "

gx

NO. 29759

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CR. NO. 08-1-O293)

JANUARY 28, 2010

NAKAMURA, CHIEF JUDGE, FUJISE and LEONARD, JJ.

OPINION OF THE COURT BY LEONARD, J.

Plaintiff-Appellant the State of Hawai‘i (State)
appeals the Findings of Facts, Conclusions of Law and Order
Granting Defendant's Motion to Suppress Evidence (Suppression
Order), filed on March l7, 2009 in the Circuit Court of the Fifth
Circuit (Circuit Court).9

On appeal, the State claims that the Circuit Court
erred by suppressing evidence recovered from Defendant-Appellee
Marco Paulo Rodrigues (Rodrigues) during a warrantless search of
his pockets after Rodrigues had been placed under arrest for
outstanding bench warrants. The State argues, primarily, that a
clear ziploc baggie containing methamphetamine inevitably would
have been discovered during an inventory search of Rodrigues's
pockets at the police cell block because Rodrigues was already

under arrest. For the reasons set forth below, we vacate the

y The Honorable Kathleen N.A. Watanabe presided.

FOID l’UBLlCA'l`ION IN WES'I"S HAW’A]‘I REP()RTS AND I’.ACIFI(Y Rl?jl’()l{".{‘lil{

Suppression Order and remand this case to the Circuit Court for
the entry of findings of fact and further legal conclusions
regarding whether the State met its burden of establishing, by
clear and convincing evidence, that the baggie would have been
inevitably discovered.

I . BACKGROUND

On November 25, 2008, Rodrigues was charged by
complaint with Promoting a Dangerous Drug in the Third Degree, in
violation of Hawaii Revised Statutes (HRS) § 712-1243 (Supp.
2008).
On February l8, 2009, Rodrigues filed a Motion to
Suppress Items of Evidence (Moti0n to Suppress). Rodrigues
claimed that evidence obtained from a warrantless search of his
pockets by Officer Scott williamson (Officer Williamson) should
be suppressed because it was in violation of his rights under
article I, section 7 of the Constitution of the State of HawaFi
and the Fourth and Fourteenth Amendments of the United States
Constitution.
0n February 26, 2009, the State filed an opposition to

Defendant's Motion to Suppress. The State initially argued that
the drugs discovered in Rodrigues's pocket were recovered during
a valid search incident to a lawful arrest. The State claimed
that Officer Williamson's practice, when conducting a search
incident to a lawful arrest in a known drug trafficking area, "is
to pull out an arrestee‘s pockets from the top, visible area."
The State based its arguments on an officer’s need for safety
because "[p]ockets may contain syringes or razor blades," and the
officer “runs the risk of puncturing his or her skin in a
hazardous manner." In the alternative, the State argued that the
drugs would have been “inevitably discovered during a pre-
incarceration search at KPD cellblock," during a custodial search
to prevent introduction of weapons and dangerous drugs into the

custodial environment.

F()R I"[,IBLICA'I`I()N IN W'EST'S HAWAI‘I REPOR'I`S AND PAC]FIC '!T€EPOR'I`ER

At a March 3, 2009 hearing on the Motion to Suppress,
Officer williamson testified that he initially saw Rodrigues
asleep in his vehicle, which was parked in HanamaHMu Beach Park
on Kauai, and the vehicle had an "expired safety." After
Rodrigues could not produce a vehicle license and registration, a
check of his name revealed that Rodrigues had outstanding bench
warrants. Officer williamson then placed Rodrigues under arrest.

Officer williamson proceeded to conduct a search
incident to arrest by searching Rodrigues from top to bottom.
0fficer williamson testified: "when l reached his pockets, l
pulled his pockets from the outside looking for any weapons or
means of escape, needles, razor blades, strong fishing line, that
type of thing, matches." Officer williamson stated that he
pulled out the pockets rather than patting the outside of the
pockets because there might have been a needle or sharp object in
it and, with a pat-down, he would have the risk of cutting his
hand through the clothing. A clear Ziploc-type baggie came out
of Rodrigues's left pocket and it appeared to contain crystal
methamphetamine. Officer williamson then transported Rodrigues
to the Kauai Police Department (KPD) cell block. Officer
williamson testified that at the cell block, he would have
searched Rodrigues and inventoried all items, including items
from Rodrigues's pockets, shoes, and any other area where
something could be hidden.

Upon cross examination, Officer williamson testified
that he had no reason to believe that Rodrigues was concealing
any weapons, drugs, needles, or other drug paraphernalia or
contraband. During redirect examination, Officer williamson
testified that he searches everyone the same way because that was
the way he was trained to do it.

Sergeant Eric Kaui (Sergeant Kaui), a 22-year KPD
veteran who was in charge of the cellblock area, then testified

about the procedures for handling incoming detainees into the

FO,R P[IB>LIC¢\TI()N IN WIC»S'I"S H,AWAI,‘I RI+IP()RTS AND P.A.C.IFIC `REI’()I{'!`EI?{

cellblock area, Sergeant Kaui stated that officers bringing
arrestees into the cellblock area are responsible for conducting
a thorough search of the arrestee, including all areas of
clothing, such as pockets, shoe laces, and belt. On cross~
eXamination, defense counsel questioned Sergeant Kaui about the
standard procedures for searching a person in the field.
Sergeant Kaui testified that the standard techniques that he was
taught may not be the same as the ones currently taught. He also
testified that he was not sure what standard procedures were
being taught, that the training was uniform throughout the
department, but that he had not gone back for retraining.

During the Circuit Court proceedings, the State did not
concede that the search of Rodrigues was impermissible. However,
the State argued that even if the search was invalid, the drugs
would have been found when Rodrigues entered the cellblock.

In granting the Motion to Suppress, the Circuit Court

stated:

Now, again, looking at State v. Enos, State v. Kaluna,
the Silva case, as referenced by Mr. Acoba, this Court is
concerned because it appears that the argument by the State
is that it doesn't matter what happens on the field search,
because whatever is found when the defendant is brought into
cell block will justify the scope and breadth of the search
that was done in the field. And that is really troublesome.

I am not so concerned about any inconsistencies
that were pointed out by Mr. Acoba between Sergeant
Kaui and Officer Williamson. You know, the focus here
is on what happened in this particular case. And I
believe the questions that were posed to Sergeant Kaui
resulted in the responses that were given.

However, based on State v. Enos, and based on the
presumption of unreasonable searches and the burden being on
the State, the Court is in agreement with the defenses made
by Mr. Acoba. 1 fail to see the connection between the
reason for the arrest and the items that were searched and
discovered.

I think State v. Enos is on point. And, in that case,
which again, both counsel referenced, you know, the Supreme
Court did not buy the argument that the inevitable discovery
- ~ the inevitable discovery exception was applicable. And
the same here. The Court is not persuaded by the State‘s
argument that this search can be justified by a search
incident to a lawful arrest.

F()R PL'»'BLIC/X'I`I()N lN WES"I"S HA\VAI‘I REP()I{'I`S ANI) :PA.(.TIFIC RJZVPORTEI{

On March l7, 2009, the Circuit Court entered the
Suppression Order which stated the following Findings of Fact and

Conclusions of Law:

FINDINGS OF FACT

l. On November 23, 2008 at approximately 7:54 a.m.,
Kauai Police Department Officer Scott williamson
saw Defendant Rodrigues sleeping in a silver
two~door Hyundai at Hanamaulu Beach Park.

3. lsic] officer williamson noticed that the safety check
and vehicle registration stickers were expired
on the vehicle.

4. Officer williamson woke Defendant Rodrigues and
asked him for identification.

5. Defendant Rodrigues could not provide officer
williamson any identification or information
pertaining to the vehicle.

6. Officer williamson called police dispatch to
request any information on Defendant Rodrigues.

7. Officer williamson discovered that Defendant
Rodrigues had three outstanding bench warrants
with aggregate bail totaling one thousand
dollars.

8. Officer williamson arrested Defendant Rodrigues
for the outstanding bench warrants and
handcuffed him.

9. Officer williamson conducted a pat-down search
on Defendant's torso but when he got to
Defendant's shorts, Officer williamson turned
the pockets inside out,

lO. Officer williamson testified that for his safety
it was his practice that when he conducts a
search of an arrestee he pulls out the
arrestee's pockets from the top rather than
doing a pat~down search.

l2. [sic] As Officer williamson turned Defendant's left
shorts pocket inside out, he found a clear zip~
loc baggie that contained a crystal-like
substance in Defendant’s left front pocket.

9. [sic] Officer williamson placed Defendant Rodrigues in
his police vehicle and transported him to police
cellblock in Lihue. `

F()R 'l"[JB{_.l(_`,ATIt()N IN VVE "I"S HAWAI‘I REP()R’FS ANI) PACII+"ICF RILPC)R'I`EI{

93

gQ§gLUs:oNs or haw

{The] Fourth Amendment to the United States
Constitution protects the rights of citizens to
be free from unreasonable searches and seizures,

Article I, Section 7 of the Hawaii Constitntion
is identical to the Fourth Amendment to the
United States Constitution.

Any warrantless search or seizure is presumed to
be illegal and the burden always rests with the
government to prove that such actions fall
within a specifically established and well-
delineated exception to the warrant requirement.
State v. Ortiz, 67 Haw. l8l, 683 P.2d 822
(l984).

An officer is entitled to conduct a pat-down
search of an arrestee for weapons incident to
the arrest. State v. Enos, 68 Haw. 509, 5ll,
720 P.2d lOl2, lOl4 (l986).

A pat-down search for weapons, however/ does not
authorize an Officer to remove items from an
arrestee's pocket unless that Officer has reason
to believe that the items felt are fruits or
instrumentalities of the crime for which the
defendant is arrested, or to protect the officer
from attack, or to prevent the offender from
escaping. §ee Enos, 68 Haw. at 510-5ll, 720
P.2d at l0l3-l4.

Officer Williamson testified that the reason for
pulling out Defendant's pockets were [sic] for
Officer Williamson‘s safety.

Officer Williamson went beyond the scope
permissible in a search incident to an arrest
given the totality of the circumstances.

Officer williamson arrested Defendant for
contempt of court. Officer williamson had no
information that Defendant was in possession of
any contraband, weapons, or instrumentalities
that could aid Defendant in escaping.

The State timely filed this appeal.

II. SlYUHDZdD CN? REK/lEVJ

The Hawafi Supreme Court has repeatedly stated the

standard of review on appeal from a ruling on a motion to

suppress:

A trial court's ruling on a motion to suppress

evidence is reviewed de novo to determine whether the ruling
was "right“ or "wrong." §;a§§_y;_§Qw§;d§, 96 HawaFi 224,

23l,

30 P.3d 238, 245 (200l) (citing State v. Jenkins, 93

F()l{ PUBLIC.ATI()N I.N WI*]S'I"S 'HAWAI‘I >R}§IPOR'I`S AND PA(_TII*"[C IKEP()R'I`ER

Hawaid.87, l0G, 997 P.2d l3, 26 £2000}). The proponent of
the motion to suppress has the burden of establishing, by a
preponderance of the evidence, that the statements or items
sought to be excluded were unlawfully secured and that his
or her right to be free from unreasonable searches or
seizures was violated under the fourth amendment to the
United States Constitution and article I, section 7 of the
HawaFi Constitution. §§g State v. Wilsgp, 92 Hawafi 45,
48, 987 P.2d 26B, 271 (l999) (citations omitted).

istate v. Ka1e@hano, 99 HawaiU.370, 375, 56 P.3d 13s, 143
<2002>1.

State v. Spillner, 116 HawaiU_351, 357, 173 P.3d 498, 504
(2007).
IlI. POlNTS OF ERROR

On appeal, the State does not challenge the Circuit
Court's conclusion that Officer Williamson's warrantless search
and seizure, beyond the pat-down for weapons, violated
Rodrigues's rights under the Hawafi Constitution. The State
raises the following points of error:

1. The Circuit Court erred when it concluded, based
on State v. Enos, 68 Haw. 509, 720 P.2d 1012 (1986), that the
inevitable discovery rule was inapplicable to this case;

2. The Circuit Court erred when it rejected the
State's argument that the baggie containing methamphetamine was
admissible pursuant to the inevitable discovery rule, without
entering findings of fact upon which its rejection of the State's
argument was based; and

3. The Circuit Court erred when it concluded that the
State failed to establish, by clear and convincing evidence, that
the baggie containing methamphetamine was admissible pursuant to
the inevitable discovery rule,

IV. DlSCUSSlON
A. The Illegal Search

The State concedes on appeal that, under §nQ§, Officer
Williamson‘s conduct in emptying Rodrigues‘s pockets violated
Rodrigues's rights under the Hawafi Constitution. As §ng§ is

binding upon this court - as well as KPD - and is central to the

F()R l’liBLlC`zi'l`l()N IN WQES'P'S HAWAI‘I R,I<'"ZI’()R'[`S AND PACTlFIC R]CP()I`~{’l`I?I},{

Circuit Court's ruling and the parties’ disagreement, we
carefully consider the circumstances and holding in that brief,

but instructive, opinion:

{Enos] was convicted of driving under the influence in
violation of HRS § 291-4 and of promoting a dangerous drug

»~¢

in the third degree in violation of HRS § 71z-1243.

{Enos] appeals the drug conviction, contending that
the court below erred in not suppressing as evidence four
heat-sealed, clear plastic cellophane bags, containing a
white powdery substance, found in, and removed from {Enos]’s
pants pockets, during a search following his arrest on the
drunken driving charge, as well as statements thereafter
made by him. The parties have stipulated that [Enos]'s later
statements were the fruit of the poisonous tree and stand or
fall on the validity of the search and seizure of the four
packets.

On the authority of State v. Kaluna, 55 Haw. 361, 520
P.2d 51 (1974), we reverse because, as that case held, the
search and the seizure of the cellophane packets violated
Article I, section 7 of the Constitution of the State of
Hawaii.

The court below entered findings of fact and
conclusions of law which set out the salient facts. [Enos]
was traveling in excess of the posted speed limit. Because
of that, he was pulled over by Officer Yomes who, on
approaching the car, observed [Enos] to have watery,
bloodshot eyes, slurred speech and a strong odor of
alcoholic beverage. He was asked to exit the car and perform
the standard field sobriety tests, which he failed. The
officer thereupon placed him under arrest. As the court
below found:

6. ... Officer Yomes then conducted a pat-down search
of the Defendant for weapons and contraband without
any prior knowledge or suspicion of weapons or
contraband on Defendant's person prior to placing him
in the police vehicle.

7. During the pat-down search, Officer Yomes felt what
appeared to be cellophane packets in the Defendant‘s
left front pants pocket. Based on his prior experience
in narcotics investigations, Officer Yomes suspected
that the packets contained contraband. On that basis,
he removed the packets from the Defendant and seized
them as evidence.

There is no dispute as to these findings. The court
below held that the search in question was one incident to a
lawful arrest, a recognized exception to the usual
requirement that the officer have a warrant prior to
conducting the search,

The Supreme Court of the United States over a dozen
years ago decided that the exact type of search and seizure
here involved, would be permissible, under the Fourth

F()R Pl,lyBlg»lCr\'l`l'()N I.N VV IS'I"S iiAW\/}\I‘I REPOR"I`S A_Nil) I’¢AC|QI<`IC` RISP().l-K'I`El{

amendment to the Constitution of the United States, as a
search incident to a lawful arrest. Qnited States v.
Robinson, 414 U.S. 2l8, 94 S.Ct. 467, 38 L,Ed.2d 427 {l973};
Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 48S, 38 L.Ed.2d
@56 (l973},

In Kaluna, supra, this court recognized the authority
of those decisions as regards to the federal constitution,
but expressly rejected them as a guide in interpreting the
parallel state constitutional provision.

This court stated:

[O]nce probable cause is found for an arrest, a search
incidental thereto is further limited in scope to a
situation where it is reasonably necessary to discover
the fruits or instrumentalities of the crime for which
the defendant is arrested, or to protect the officer
from attack, or to prevent the offender from escaping.

State v. Kaluna, 55 Haw. 36l, 370-7l, 520 P.2d 5l, 59
(quoting State v. Hanawahine, 50 Haw. 46l, 464, 443 P.2d
l49, l5l~52 (l968)) (emphasis in original}.

We have repeatedly upheld the right of an officer
making an arrest to take reasonable and appropriate steps to
protect himself from possible weapons to which the arrestee
may have access. State v. Barrett, 67 Haw. 650, 701 P.2d
1277 (l985); State V. OrtiZ, 67 HaW. l8l, 683 P.2d 822
(l984); State v. Kaluna, supra. we think it clear that on an
arrest for drunken driving, it is per se reasonable for an
officer to conduct a pat-down for weapons.

Here, the officer found no Weapons. On this record,
there was nothing to indicate that there were, concealed on
the person of [Enos], any fruits or instrumentalities of the
crime of drunken driving. Given the finding by the court,
which was in accord with the testimony, that the officer was
without any prior knowledge or suspicion of the existence of
contraband, the warrantless search and seizure, beyond the
pat-down for weapons, violated [Enos]’s rights under the
Constitution of the State of Hawaii. The order denying a
suppression of the four cellophane packets was error.

we are not dealing with an inventory search, which

involves a different exception to the warrant requirement.
Indeed, in the particular case, the arresting officer
testified that he was required, by police department
regulations, to make the unconstitutional search in question
and was subject to discipline if a later inventory search
turned up the evidence, and thus demonstrated that he had
failed to make the search.

Police department regulations cannot set aside our
construction of the constitution of this State. The
Constitution of the State of Hawaii is not the analog of a
looseleaf notebook. This court spoke directly on the present
problem in Kaluna, supra. That holding was binding on the
police and the court below. we reaffirm that holding and,

F()R PL‘B_LICA'I`I()N lN \VES"_|"S I~IAW’AI‘I R}Z`.P()R'l_`S AND P.A.CIVFIC `IKIZI’()R"I`EI{

accordingly, reverse and remand for further proceedings
consistent herewith.

§gQ§, 68 Haw. at 509~ll, 720 P.2d at l0l3-lS.

§nQ§ makes crystal clear that a pat~down search
incident to arrest is per se reasonable and appropriate in order
to protect the officer from possible weapons. However, a search
incident to arrest must be limited in scope to what is
"reasonably necessary to discover the fruits or instrumentalities
of the crime for which the defendant is arrested, or to protect
the officer from attack, or to prevent the offender from
escaping." ;dg at 5ll, 720 P.2d at 1014 (citations and emphasis
omitted). Without a doubt, Officer Williamson's actions in
turning Rodrigues's pockets inside-out violated that standard.

B. The Circuit Court Erroneouslv Relied on Enos to Reject
the State's Inevitable Discoverv Argument

The State argues that the Circuit Court erroneously
relied on §ng§ as the basis for its rejection of the State's
inevitable discovery argument. We agree. §nQ§ is silent on the
issue of the inevitable discovery exception to the exclusionary
rule.W The inevitable discovery exception was adopted by the
Hawafi Supreme Court nine years after §nQ§, in State v. Lopez,

78 HaWafi 433, 896 P.2d 889 (l995).

Notably, Rodrigues does not argue that the Circuit
Court correctly relied on §ng§ to reject the applicability of the
inevitable discovery exception in this case. Instead, Rodrigues
acknowledges the supreme court's holding in Lopez and argues that
"the record lacks the clear and convincing evidence necessary to
show that the clear plastic baggie would still have been in Mr.
Rodrigues’s left shorts pocket and inevitably discovered at the

KPD cell block during the inventory search." In support of this

W In fact, the Enos court specifically stated: "We are not dealing
with an inventory search, which involves a different exception to the warrant
requirement." Enos, 68 Haw. at 5ll, 720 P.2d at l0l4.

10

F()I\{ PUBLICA'I`ION IN WI*')ST'S HAWAI‘I REPORTS AND PACIFIC REP()R"I`EI§'.

proposition, Rodrigues cites several cases from other
jurisdictions wherein defendants have been able to retrieve and
discard similar baggies from their persons while handcuffed.

See, e.g., williams v. State, 784 S,W.2d 428 (Tex. Crim App.
l990) (police found cocaine beneath the patrol car‘s backseat
where the handcuffed defendant was seated); State v. Jimeniz, 808
A.2d 1190 (Conn. App. 2002) (police officer found cocaine in
backseat of police car after transporting defendant who had been
handcuffed and frisked for weapons); Simmons v. State, 299 Ga.
App. 2l, 681 S.E.2d 712 (2009} (officer discovered cocaine wedged
in backseat of police car even though defendant had been searched
and handcuffed). Before we consider whether the State met its
burden to establish that Rodrigues's plastic baggie inevitably
would have been discovered, we must consider the inevitable
discovery exception to the exclusionary rule as adopted by the
supreme court in LQpe;.

In Lopez, a container of cocaine was found in the
defendants' home by a detective who entered the home without a
warrant or the defendants' consent, and evidence of cocaine
delivery subsequently was obtained with a search warrant based on
the detective's discovery of cocaine during his prior illegal
search, LQp§; 78 Hawafi at 438, 896 P.2d at 894. All evidence
of contraband was suppressed by the circuit court and the State
appealed. ;dg at 437, 896 P.2d at 893. On appeal, the supreme
court rejected the State's arguments that the initial search did
not violate the defendants' constitutional rights and that, even
if the defendants' rights were violated, the independent source
exception to the exclusionary rule applied. ld; at 447~48, 896
P.2d at 903-04. The LQp§; court then discussed, adopted, and
established the scope of the inevitable discovery exception to
the exclusionary rule under the Hawaid Constitution, but

declined to apply it because the State had not met its burden to

ll

FOR PU'B:LICA'I`I()N lN W:P§S'I"S HAVVA]‘I R,`EPOR'I`S A`NI) PACVIFIC RICPOR'}"EI{

demonstrate that the evidence of cocaine delivery inevitably
would have been discovered. ;d; at 44B~55, 896 P.2d at 904~ll.
ln Lopez, the supreme court held that evidence

recovered from an otherwise illegal search is not suppressed if
the evidence would have been inevitably discovered by the police
via lawful means. ;d; at 450~5l, 896 P.2d at 906~O7, citing §;§
v. Williams, 467 U.S. 431 (l984). The court further held that
the prosecution must present clear and convincing evidence that
any illegally obtained evidence inevitably would have been
discovered by lawful means before such evidence may be admitted
pursuant to the inevitable discovery exception. ;d¢ at 45l, 896
P.2d at 907 (adopting Justice Brennan‘s dissenting opinion in
Williams on this point).

Accordingly, in the present case, the Circuit Court
erred when it relied exclusively on §nQ§, without regard to
Lopez, to conclude that the inevitable discovery exception does
not apply to the clear baggie containing a crystalline substance
that Officer Williamson illegally seized from Rodrigues's pocket
during the search incident to arrest.

C. The Circuit Court's Findings of Fact

Citing HawaiE Rules of Penal Procedure (HRPP) Rule
l2(e), the State contends that the Circuit Court erred when it
rejected the State's argument that the baggie containing a
crystalline substance was admissible under the inevitable
discovery rule without finding facts upon which its rejection was
based. Rodrigues does not respond to this argument, except to
state that the record lacks the clear and convincing evidence
necessary for the prosecution to meet its burden.

HRPP Rule 12 provides, in relevant part (emphasis

added):

(b} Pretrial motions. Any defense, objection, or
request which is capable of determination without the trial
of the general issue may be raised before trial by motion.
Motions may be written or oral at the discretion of the
judge. The following must be raised prior to trial:

12

F()R PliBLlCAT'l()N 'IN WP")S'I"S HAWAI‘I RIBPORTS AN]) PAC.]'I*"I(T REP()RTRR

(3) motions to suppress evidence or for return
of property;
(e} Ruling on m0tion. A motion made before trial

shall be determined before trial unless the court orders
that it be deferred for determination at the trial of the
general issue or until after verdict; provided that a motion
to suppress made before trial shall be determined before

trial. where factual issues are involved in determining a
motion, the court shall state its essential findings on the
record.

In State v. Anderson, 67 Haw. 5l3, 693 P.2d 1029
(1985), in an appeal from an order granting a motion to suppress,

the supreme court held:

The validity of the alleged search and seizure depends on
the weighing of a myriad of factual determinations. The
lower court, however, made absolutely no findings of fact.
lt is impossible for this court to determine the factual
basis for the lower court‘s ruling. Accordingly, we reverse
and remand.

;d; at 513, 693 P.2d at 1029-30. Anderson relied on HRPP Rule
12(e) and the parallel federal rule in reaching this conclusion.
;d; at 514, 694 P.2d at 1030 (citations omitted); §ee al§Q §§at§
V. HutCh, 75 HaW. 307, 33l, 861 P.2d ll, 23 (l993).

Although in this case the Circuit Court entered written
findings of fact, the court entered no findings regarding the
evidence supporting the State's inevitable discovery argument.
lnstead, as discussed above, the Circuit Court rejected the
State's inevitable discovery argument based on its erroneous
legal conclusion that Eng§ was controlling in this case. We
conclude that HRPP Rule 12(e) is applicable here. As discussed
above, we conclude that it is the province of the trial court, in
the first instance, to assess the credibility of the police
witnesses and determine whether the State presented clear and
convincing evidence that the baggie found in Rodrigues's pocket
would have been inevitably discovered during an inventory search
at KPD cellblock. The Circuit Court erred in failing to state

its essential findings on this issue.

13

F()R P[YBIJ(.T.~\TI()N lN \~`\'/QI‘IS'I,"S HA\VAI‘I .R.l*l.POR'l`S AN}) I’AC.IFIC RIZI’()R'\"EI{

D. The Application of the Inevitable Discovery Exception
The State argues that, based on Lopez and this court's
opinion in State v. Silva, 91 Hawafi ll1, 979 P.2d 1137 (App.
l999), this court must find that the Circuit Court erred by
suppressing the baggie from evidence because there was clear and
convincing evidence that the baggie would have been inevitably
discovered during a lawful inventory search. Rodrigues argues
that "Silva was, at the very least, uncritically analyzed, if not
wrongly decided." Rodrigues alternatively argues that, even if
Silva was correctly decided, it is distinguishable.
In Silva, a woman had called the police to report that
a man was sleeping in his car, which was parked on her lawn.
Silva, 91 HawaiYi at ll2, 979 P.2d at ll38. After the police
officer arrived, he woke the defendant. When asked for personal
identification, the defendant said he had none, but stated that
his name was Brandon Silva (Silva). ldé The officer asked Silva
to exit the vehicle, discovered that Silva had three outstanding
traffic warrants, and placed him under arrest. ld; During a
search incident to Silva's arrest, the officer found a glass pipe
and a clear packet of what appeared to the officer to be crystal
methamphetamine. lQ; Silva moved to suppress the evidence
resulting from the search on multiple grounds. The circuit court
concluded, inter alia, that the State had established, by clear
and convincing evidence, that the contents of Silva's pockets
would have been revealed during an inventory search and that
there was nothing in the record to suggest that the contraband
was in a closed container. On appeal, Silva challenged the
circuit court's order denying his motion to suppress evidence,
Silva contended that the police illegally ordered him to exit the
vehicle, the warrant check was unlawful, and the State failed to
meet its burden of proof to establish, by clear and convincing

evidence, that the contents of Silva's pockets would have been

14

F()R PUBLICT.»X'I`I()N l'N WES”I"S _I~IAVVAI‘I I{EP()I?{'I`S .¢KN`D `Pi~'XCiFllC` i{!€l*'()l'{'li`l£l{

inevitably discovered during an inventory search. ;dg at ll2,
l20, 979 P.2d at ll3B, ll46.
with respect to the inevitable discovery rule adopted

in LQpe;, this court affirmed the circuit court's conclusion that
the State met its burden of proof in §ilya. Noting that neither
the pipe nor the packet of crystal methamphetamine were in a
closed container, and that Silva did not contest that the objects
were in his pocket, the court concluded that it was clear that
the evidence would have been discovered during an inventory
search. ;d; at 120-2l, 979 P.2d at ll46»47, citing State v.
Kaluna, 55 HaW. 36l, 372~74, 520 P.2d 4l, 60-61 (l974) (pre~
incarceration inventory search that included the opening of a
folded tissue containing capsules of a barbiturate exceeded the
parameters of a permissible search because it exceeded the valid
reasons for the search). On appeal, Silva contended that "there
was insufficient evidence the circuit court's finding that the
evidence would have been inevitably discovered by the police."
lQ; at ll2, 979 P.2d at ll38. This court concluded that the
circuit court's findings were not clearly erroneous. ld4 at l21,
979 P.zd at 1147.-3-/

Rodrigues's argument that Silva was wrongly decided is

meritless. However, we do not read Silva to relieve the State of
W Judge Acoba (now Justice Acoba) wrote a concurrence in Silva,

noting that the prerequisite for a warrant check under HRS § 803-6 is a lawful
arrest and that the police placed Silva under arrest after and as a result of
the warrant check. Silva, 91 HawaFi at ll2, 979 P.2d at ll38. Judge Acoba
noted, however, that after Silva exited the car, he volunteered that he had
traffic warrants, §Q; Thus, he invited his further detention for a warrant
check. ;d; at l2l~22, 979 P.2d at ll47. Judge Acoba concluded that: "The
contraband was recovered following the arrest on the warrants, and validly so,
as incident to arrest under the police version of the events, or pursuant to
the inevitable discovery rule under [Silva's] recounting of the episode." ;d;
at l22, 979 P.2d at 1147-48. On a petition for writ of certiorari, the Hawafi
Supreme Court affirmed the result reached by this court in Silva. State v.
Silva, 91 Hawafi 80, 8l, 979 P.2d llO6, llO7 (l999). However, the supreme
court clarified that it did not read this court's majority opinion "as
generally allowing the police to prolong the detention of individuals
subjected to brief, temporary investigative stops--once such stops have failed
to substantiate the reasonable suspicion that initially justified them--solely
for the purpose of performing a check for outstanding warrants " ;d;

15

FOR P UBL}`C¢~‘(I`]()N IN W`EST'S `I~IAVV¢AI`I R_EPOR”I`S ANI) P¢AC!F]_C`. Rl`i`. PO`I{'I`B`..R

its burden to present clear and convincing evidence that
discovery of contraband would have been inevitable upon an
inventory search at the police cellblock. In the instant case,
the State presented the testimony of Officer williamson and
Sergeant Kaui concerning KPD procedures to support the inevitable
discovery argument. Yet, the Circuit Court made no findings of
fact regarding the credibility of the police officers or the
weight given to their testimony in light of the other evidence
and arguments related to the issue of inevitable discovery. The
Circuit Court reached no conclusions regarding whether the State
met its burden of proof, instead rejecting the applicability of
the inevitable discovery exception as a matter of law. In the
absence of the findings of fact required by HRPP Rule l2(e), it
is not the role of the appellate court, in the first instance, to
make determinations as to the credibility of the witnesses or the
weight of the evidence, §ee, e;g;, Hutch, 75 Haw. at 33l, 861
P.2d at 23 ("Because findings of fact are imperative for an
adequate judicial review of a lower court's conclusions of law,
we have held “that cases will be remanded when the factual basis
of the lower court's ruling cannot be determined from the

record ") (citations, internal quotation marks, brackets, and
ellipses omitted). Therefore, on this record, we decline to
conclude that the State established, by clear and convincing
evidence, that the baggie that was illegally seized from
Rodrigues's pocket would have been inevitably discovered at KPD
cellblock during an inventory search. We also decline to

conclude, as a matter of law, that the State failed to meet its

burden.

16

F()`R PLPB,LICA'I`ION lN WES'I"S HA\VQAI‘I REP()R'I`S sXN`l`) .PA(TI.I<`IC REP()R'I"I:`,I{

V. CGNCLUSlGN

For these reasons, we vacate the Circuit Court's March
l7, 2009 Suppression Order and remand this case for further
proceedings consistent with this opinion.
On the briefs:

Tracy Murakami éi;@@;1z(.E%§%é;H%Hj¢Lp`w

Deputy Prosecuting Attorney

for Plaintiff~Appellant »
ganey/979

James S. Tabe
Deputy Public Defender
for Defendant~Appellee

H