LHWf§‘
N()T FOR P[FBLIC¢X'_[`I()N I`N WEST’S HAVVAl'°lj REP()RTS AND PACU¢"IC REPOR’TER
No. 29743
in THs :NTERMsD:ATE coURT oF APPEALs
0F THs sTATE op HAwArI
STATE OF HAWAI‘I, Plaintiff»Appellant, v.
LARRY JAY RUSSO, Defendant~Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DlVISIGN
(CASE NO. lDTA-08-O90l6)
SUMMARY DISPOSITlON ORDER
(By: Nakamura, Chief Judge, Leonard, J., and Circuit
Court Judge Nishimura, assigned by reason of vacancy)
Plaintiff-Appellant the State of HawaiU.(State)
appeals the Findings of Fact, Conclusions of Law and Order
Granting Defendant's Motion to Suppress Evidence and Motion to
Dismiss Case With Prejudice (Suppression Order), filed on April
22, 2009 in the Honolulu Division of the District Court of the
First Circuit (District Court).W
On September lO, 2008, Defendant-Appellee Larry Russo
(Russo) was charged by complaint with Operating a vehicle Under
the Influence of an Intoxicant (OUVII), in violation of Hawaii
Revised statutes .
Pursuant to the Suppression Order, evidence against
Russo was suppressed. The District Court also granted Russo's
motion to dismiss the charge against him. The District Court
concluded that investigatory stop of Russo was not reasonable.
On appeal, the State contends that reasonable suspicion
existed to justify the police officer's investigative stop of
Russo's vehicle and, therefore, the District Court erred in
entering the Suppression Order.
- The Honorable William Cardwell presided.
NOT F()R PUBLICA'I`}ON` IN VVES'I"S HAWAI‘I RE-P()RTS AN]) PAC.I_I*`IC REP()RTER
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve the State‘s point of error as follows:
j The District Court did not err by granting Russo‘s
motion to suppress because the police lacked specific and
articulable facts which suggested criminal activity was afoot in
order to justify an investigatory stop of Russo.
In State V. Eleneki, 106 HaWafi l77, lO2 P.3d lO75
(2004), the court stated:
It is axiomatic that "stopping an automobile and
detaining its occupants constitutes a ’seizure' within
the meaning of the Fourth Amendment to the United
States Constitution and Article I, Section 7 of the
Hawai'i Constitution, even though the purpose of the
stop is limited and the resulting detention quite
brief." State v. Powell, 61 Haw. 3l6, 320, 603 P.2d
l43, 147 (citations omitted). A warrantless seizure is
presumed invalid "unless and until the prosecution
proves that the . . . seizure falls within a well-
recognized and narrowly defined exception to the
warrant requirement." State v. Prendergast, 103
HaWai‘i 45l, 454, 83 P.3d 7l4, 7l7.
106 Hewei‘i et 130, 102 pad et 1073. "J:n determining the
reasonableness of wholly discretionary automobile stops, this
court has repeatedly applied the standard set forth in Terry."
;d; "The narrowly defined exception to the warrant requirement
recognized by Prendergast is that a police officer may stop an
automobile and detain its occupants if that officer has
reasonable suspicion that the person stopped was engaged in
criminal conduct." ld; (internal quotation marks omitted). "In
that connection, the police officer must be able to point to
specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion." ;d¢ (internal quotation marks and citations
omitted). "A seizure or stop based on reasonable suspicion,
then, is tied to some objective manifestation that the person
stopped is, or is about to be, engaged in criminal activity, or
N()T FOR PUBLIC,A'I`ION IN WEST'S HAWAI‘I REPORTS AND PACIFIC R,EP()R'F_PZR
is wanted for past criminal conduct.“ ;§¢ (internal quotation
marks and citations omitted).
The State does not challenge any Findings of Fact in
the Suppression Order, therefore, they are taken as true. The
District Court found that Officer Tanaka first observed Russo
slowly driving away in his pick-up truck from a parking lot.
There was no reasonable suspicion that Russo was currently
engaged in or about to be engaged in criminal activity because
driving away slowly from a parking lot is not criminal activity.
Thus, the State must satisfy the reasonable suspicion standard
based upon the fact that Russo was wanted for past criminal
conduct.
The District Court found that Officer Hung stopped
Russo "solely on Officer Tanaka's instruction,“ and that Officer
Hung advised Russo that "he was conducting an investigation into
an argument call." Officer Tanaka did not witness the argument
between Russo and the cashier. Even if Officer Tanaka did
witness an argument, an argument is not criminal activity. There
was no evidence that Russo engaged in any activity except an
alleged argument, from which he had departed without further
incident. The State‘s assertion that Officer Tanaka was acting
upon reliable information from an eye-witness does not transform
the reported argument into criminal activity. A stop based on
non-criminal activity does not fit within the well-recognized and
narrowly defined exception to the warrant requirement because it
lacks reasonable and articulable suspicion. State v. Heapy, 113
Hawafi 283, 293, 151 P.3d 764, 774 (2007). The State’s further
arguments on this point of error are also without merit.
Accordingly, we affirm the District Court's April 22,
2009 Suppression Order.
'NOT F()R PU'BLICATION l'N WEST'S l*I,A`VVAI‘I RE.PORTS AND P,ACIFIC REPORTER
:)ATED; seneiuiu, sewej,‘i, Jenue_ry 20, 2<:)10.
' : ) »"»“p / £? 1
On the briefs C§;§S~;%4,é§Q;,¢¢¢?%£,, y
Delanie D. Presoott-Tate
Deputy Prosecuting attorney
for Plaintiff-Appellant
Chief Judge
Earle A. Partington
for Defendant-Appellee
Associate Judge
NO. 29748,' STATE OF HAWAI‘I, Plaintiff-Appellant V. LARRY JAY RUSSO,
Defendant-Appellee; Summary Disposition Order