State v. Ortiz

DISSENTING OPINION OF

NAKAMURA, J., WITH WHOM WAKATSUKI, J., JOINS

The Intermediate Court of Appeals, finding no grounds for legitimating the search of defendant’s knapsack and the seizure of a handgun as incident to a legal arrest under our case law, strained to place the search and seizure beyond the reach of constitutional protections by fashioning a novel “plain feel” rule from “the limitations and rationale of the plain view rule.”1 State v. Ortiz, 4 Haw. App. 143, 164, 662 P.2d 517, 532 (1983). Certiorari was granted “to consider the wisdom of recognizing yet another exception to *191the warrant requirement.” Deeming it unwise to lend authoritative status to the appellate court’s variant of the plain view concept, the majority of this court sanctions the search and seizure on another ground — “the warrantless search here was a valid protective weapons search under Terry v. Ohio, 392 U.S. 1 (1968) and its progeny.” I agree it would be unwise to adopt a “plain feel” rule, but fail to see how a warrantless search of a closed knapsack that occurred after the threat of harm to the police officer had been neutralized2 can be justified as a Terry search.3

*192I.

The intermediate appellate court summarized the dispositive facts as follows:

On August 12, 1981, at approximately 2:00 a.m., uniformed police officer Brad Bennett was driving in his private, police-subsidized automobile with the customary blue light attached to the roof of the vehicle. While driving in the Wahiawa business area, Bennett saw Ortiz carrying a knapsack in an empty parking lot. Bennett testified that when Ortiz saw him, Ortiz ran towards the side of a building out of his view. After driving into the parking lot, Bennett saw Ortiz seated on the ground with his back to the building.

Bennett approached Ortiz on foot, asked him what he was doing there, and Ortiz responded that he “didn’t know.” When asked about the knapsack, Ortiz stated that it belonged to him and that nothing was in it. Ortiz then reached out for the knapsack with his right hand, and Bennett immediately grabbed the knapsack from him. While doing so, Bennett felt the butt of a handgun through the thin, canvas-type fabric. Ortiz stood up, and Bennett backed away from him, unzippered the knapsack and saw a handgun and holster therein. Bennett removed the gun from the knapsack, placed Ortiz under arrest, and took him to the police station where the gun was examined and found to be loaded.

4 Haw. App. at 144-45, 662 P.2d at 521. Viewing these facts in the light of controlling precedent, the appellate court like the trial court deduced “the warrantless unzippering of Ortiz’s knapsack and the seizure of the gun therefrom . . . [could not] be justified under the incident to a lawful arrest exception to the warrant requirement.” State v. Ortiz, 4 Haw. App. at 150, 662 P.2d at 522. It therefore tailored a new legal justification for searching the knap*193sack without a warrant in a situation where the trial court correctly concluded that none existed.

The majority avoids the labored and circuitous route followed below to validate the search and seizure and arrives at the same result by more expeditious means. It takes an exception to the rule that searches conducted outside the judicial process are per se unreasonable and stretches the narrowly defined exception to cover the situation. The expánsion of the Terry rule to validate the search of a closed container is no less flawed than the extension of the “plain view” concept the majority implicitly rejects.

II.

In Terry v. Ohio, supra, the Supreme Court established a “stop and frisk” exception to the warrant requirement. Thus a police officer may stop a person on less than probable cause if the officer observes unusual conduct leading to a reasonable suspicion that criminal activity may be afoot and if the officer can point to specific and articulable facts that warrant the suspicion. C. Whitebread, Constitutional Criminal Procedure 145 (1978). And a “protective frisk” is authorized if the officer reasonably believes the person may be armed and presently dangerous. Id. But “[t]he search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” Sibron v. New York, 392 U.S. 40, 65 (1968). The search was valid because it was “reasonably limited in scope to the accomplishment of the only goal which ... justified its inception — the protection of the officer by disarming a potentially dangerous man.” Id.

“While Terry and Sibron were concerned on their facts with the problem of ‘stop and frisk’ on less than probable cause,” we assumed the “rationale underlying those decisions .. . govern[ed] the whole range of problems in warrantless search and seizure cases,” State v. Kaluna, 55 Haw. 361, 367, 520 P.2d 51, 57 (1974). For we had been instructed that “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 (1967) (Mr. Justice Fortas, concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368 (1964); Agnello v. United States, 269 *194U.S. 20, 30-31 (1925).” Terry v. Ohio, 392 U.S. at 19. Subsequent decisions of the Court, however, impelled a re-examination of what we thought was fundamental in the law of search and seizure. State v. Kaluna, 55 Haw. at 367, 520 P.2d at 57.

We were disturbed particularly by United States v. Robinson, 414 U.S. 218 (1973), and its companion, Gustafson v. Florida, 414 U.S. 260 (1973). “In each case, under the reasoning of the . . . Supreme Court, the lawful custodial arrest alone gave the police authority to violate whatever privacy interest in the contents of the receptacles the arrestees may have had.” State v. Kaluna, 55 Haw. at 368 n.5, 520 P.2d at 58 n.5. We were troubled because the decisions “seemingly sanctioned miniscule scrutiny by the police into any and all items an arrestee in custody may happen to have in his possession.” Id. In the case then at bar, “the search of. . . [the defendant’s] body and all personal effects in her possession . . . [would not have] violate[d] her federal constitutional rights since ‘the fact of [her] lawful arrest’ alone gave the police plenary authority to subject her to a detailed search.” Id. at 368-69, 520 P.2d at 58 (footnote omitted).

We were not prepared, “as the ultimate judicial tribunal” with “final, unreviewable authority to interpret and enforce the Hawaii Constitution,” id. at 369, 520 P.2d at 58, to hold “that since a lawful custodial arrest is a significant intrusion into an individual’s privacy, further ‘lesser’ intrusions may be made without regard for their justifications. Cf. Chambers v. Maroney, 399 U.S. 42, 61-65 (1970) (Harlan, J., dissenting).” Id. at 370, 520 P.2d at 59. “In our view, the right to be free of ‘unreasonable’ searches and seizures under article I, section 5 (now section 7) of the Hawaii Constitution [was] enforceable by a rule of reason which requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances.” Id. at 369, 520 P.2d at 58-59 (footnote omitted). And we summarized our holding and the reasons supporting it in these terms:

In sum, we hold that a search incident to a valid custodial arrest does not give rise to a unique right to search; instead, the circumstances surrounding the arrest generate the authority to search without a warrant. If these circumstances show a legitimate basis for a search — such as protection of the arresting *195officer or preservation of evidence of the crime for which the arrest is made — then a search is lawful only if no broader than necessary in light of the justification. A search which exceeds this scope is a search without reason. And a search without reason we regard as manifestly “unreasonable” under the Hawaii Constitution.

Id. at 372, 520 P.2d at 60.

III.

The trial court regarded Kaluna and its teachings as controlling and suppressed the handgun as evidence; in essence, it ruled the search in this case was “broader than necessary in light of the justification” therefor. See id. While the majority of this court acknowledges we are expounding the search and seizure provisions of the Constitution of the State of Hawaii rather than the Fourth Amendment,4 it nonetheless finds Kaluna and our “stop and frisk” decisions5 inapposite. It claims the casé at bar is distinguishable on the facts from other cases involving Terry searches and implies the intrusion here is not worthy of constitutional regulation.

A.

If a distinction can be drawn as claimed, it is only because the majority places its own gloss on the facts6 and overrules a pertinent *196finding of the court charged with the responsibility for factual determinations. The unvarnished facts presented by the record, in the majority’s view, are somehow unsuitable or inadequate for judging the validity of a Terry search. A possible “hidden accomplice” who “might have turned the corner at any moment,” see note 6 supra, is therefore conjured, presumably to facilitate an application of the “objective standard of reasonableness” it purports to employ. See Majority Opinion, 67 Haw. at 188, 683 P.2d at 828.

But we have long maintained “[i]t is for the trial judge as fact-finder to assess credibility of witnesses, including defendants, and to resolve all questions of fact.” Lono v. State, 63 Haw. 470, 473, 629 P.2d 630, 633 (1981) (citing State v. Hopkins, 60 Haw. 540, 592 P.2d 810 (1979)). Furthermore, “[t]he trier of fact may draw all reasonable and legitimate inferences and deductions from the evidence adduced .. . , and findings of the trial court will not be disturbed unless clearly erroneous. State v. Herrera, 63 Haw. 405, 629 P.2d 626 (1981).” Id. at 473-74, 629 P.2d at 633..

“ ‘We are not permitted, under that standard, to simply displace the .. . [circuit court’s] findings for our own.’ United States v. Minnesota Mining & Manufacturing Co., 551 F.2d 1106, 1109 (8th Cir. 1977).” State v. Yoon, 66 Haw. 342, 350, 662 P.2d 1112, 1117 (1983). Findings, we have declared, “are not to be disturbed unless, after a review of the whole record, we are ‘left with the definite and firm conviction that a mistake has been committed.’ Kim v. State, 62 Haw. 483, 493, 616 P.2d 1376, 1382 (1980) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); accord Honda v. Higa, 52 Haw. 311, 313, 474 P.2d 708, 710 (1970); Frey v. Goebert, 52 Haw. 308, 310, 474 P.2d 537, 538 (1970).” Id. Surely, a test demanding a definite and firm belief is not one to be met by mere conjecture about a “hidden accomplice” who was not there.

B.

Calling on United States v. Jacobsen, _ U.S. _, 104 S. Ct. 1652, 1663 (1984), for support, the majority also rationalizes the search of defendant’s knapsack as a de minimis invasion of privacy. We, of course, have not previously characterized the warrantless search of a closed container as a minimal intrusion; nor have we even intimated before that such a search is not regulated by Article *197I, § 7 of the Hawaii Constitution. Kaluna stands in testimony of our disagreement with the Supreme Court in this regard, see 55 Haw. at 368 n.5, 520 P.2d at 58 n.5, and so does State v. Rosborough, 62 Haw. 238, 244, 615 P.2d 84, 88 (1980).

I would honor Article I, § 7 and hold the State has not met its burden of justifying the search under one of the few specifically established and well-delineated exceptions to the rule that searches conducted outside the judicial process are perse unreasonable, set aside the decision of the Intermediate Court of Appeals, and affirm the order of the Circuit Court of the First Circuit suppressing the seized firearm as evidence.

“An object may be considered to be ‘in plain view’ if it can be seized without compromising any interest in privacy." Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 1546 (1983) (Stevens, J., concurring). No interest in privacy is compromised in a “plain view” seizure because the rule applies only when a prior justification for an *191intrusion is extant. The Supreme Court decision most frequently cited in support of the rule is Coolidge v. New Hampshire, 403 U.S. 443 (1971), which in relevant part states:

What the “plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

403 U.S. at 466 (citation omitted).

At the close of the hearing on the motion for reconsideration of the order suppressing the handgun as evidence, the trial court found the threat of harm to the police officer had been neutralized by his assumption of physical control over the knapsack. The trial court’s somewhat rambling decision included these statements:

In this particular case, as in the Terry situation, the officer was perfectly right to remove what appeared to him to pose a danger to him. This is akin to the frisk situation. However, once the knapsack was removed, the Court finds there was no need for further protective measures,

and

Number six, when the Officer assumed physical control over the bag and felt the butt of a handgun, the Court finds that at this point the brief investigatory stop turned into a situation where Officer Bennet[t] had enough probable cause to make an arrest....

The Supreme Court’s limited ruling in Terry v. Ohio was:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear *192for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

392 U.S. at 30-31.

See note 2 in Majority Opinion, 67 Haw, 181, 183, 683 P.2d 822, 829-30 (1984).

Among the decisions deemed inappropriate as precedent are State v. Barnes, 58 Haw. 333, 568 P.2d 1207 (1977); and State v. Onishi, 53 Haw. 593, 499 P.2d 657 (1972).

The finding made by the trial court that the police officer had “exclusive control over the knapsack” is overruled as “clearly erroneous.” In the majority's view the following “facts” reflected the situation more accurately:

In the present case the knapsack, though outside Ortiz’s immediate control, remained within his conceivable reach. To place Ortiz under arrest Officer Bennett either had to bring the knapsack close to Ortiz or set it down and approach him, placing himself the same distance from the knapsack as Ortiz. Ortiz might have had a hidden accomplice, or one might have turned the corner at any moment. Under the totality of the circumstances, the knapsack was not within Bennett’s exclusive control and he did not act unreasonably in searching it.

Majority Opinion, 67 Haw. at 189-90, 683 P.2d at 829 (footnote omitted).