State v. Joao

RICHARDSON, C.J.,

WITH WHOM KATO, CIRCUIT JUDGE, JOINS

I concur in the majority’s holdings that, one, the defendant had standing to raise the constitutional search and seizure issues, and two, the initial stop of the defendant’s vehicle was proper.

*223I dissent on the issue of whether the ordering of the defendant out of his car constituted an illegal seizure in violation of either the United States or Hawaii Constitutions. The validity of the order out depended on the circumstances, and on the actions of the defendant after the car was stopped.

State v. Onishi, 53 Haw. 593 at 599-600, 499 P.2d 657, 661 (1972), set forth the following standards for a protective search by police officers:

For police officers to conduct a valid stop and frisk, they must have observed specific conduct on the part of the person whom they are about to frisk, or have reliable information from which they may reasonably infer that criminal activity is afoot, and that the person is armed and presently dangerous.

See also State v. Joao, 55 Haw. 604, 606, 525 P.2d 580, 582 (1974); Terry v. Ohio, 392 U.S. 1, 21 (1968). There are thus two substantive requirements and an evidentiary requirement. Reliable information is more than inarticulate hunch, and reasonableness is to be judged by an objective standard. State v. Onishi, 53 Haw. 593, 596, 499 P.2d 657, 659 (1972); State v. Tsukiyama, 56 Haw. 8, 525 P.2d 1099 (1974); Cf. State v. Delmondo, 54 Haw. 352, 512 P.2d 551 (1973); State v. Goudy, 52 Haw. 497, 501, 479 P.2d 800, 803 (1971).

After the car was stopped, Sergeant Keliikipi did have reliable information from which he could reasonably infer that the defendant was armed and dangerous. From conversations with fellow officers who had been conducting surveillance of the defendant, the sergeant knew that the defendant was involved in shaking down bars and that such activity involved the use of firearms “as a means of persuasion.” Through fellow officers the sergeant also knew that the defendant might be carrying weapons as protection against unnamed third parties. It was also a matter of public record that earlier that year the defendant had been indicted for carrying a pistol, although the discovery of the weapon in that case was subsequently held illegal. State v. Joao, supra. Finally, the sergeant was aware of a specific incident a year earlier, in which the defendant had fired a gun; charges were not brought in that case, but the essential point is that the *224sergeant knew, on the basis of that specific incident, that the defendant had carried a gun and had used it at least once in the recent past.

The reliability of the police officer’s information in a stop and frisk situation is to be judged on a case by case basis. As we said in State v. Joao, 55 Haw. 604, 607, 525 P.2d 580, 583 (1974):

In every case, it is for the court to assess the reliability of the information received, considering the totality of the circumstances, including the source and the nature and substance of the information itself. To enable the court to judge objectively the reasonableness of the officer’s conduct, it must have before it specific and articulable facts from which to make this determination. (Citation omitted.)

It must also be remembered that in the protective search during a street encounter we do not require the level of evidence to support probable cause to arrest. Terry v. Ohio, 392 U.S. 1 (1968). Neither is a policeman, or any other reasonable man, required to conduct his business solely on the basis of evidence admissible in court; hearsay may be relied on, depending on the circumstances. Adams v. Williams, 407 U.S. 143, 147 (1972); State v. Joao, supra.

In this case, the substance of the information was highly alarming — the defendant was armed, and when confronted with such alarming information the reasonable man will become more alert, whether the source of the information is hearsay or direct observation. Furthermore, the hearsay elements in this case came from fellow officers charged with observing the defendant, not from an unnamed, unidentified civilian informant as in State v. Joao, supra. The sergeant was reasonable in believing that the defendant might be armed. Indeed, he would have been unreasonable if he had not suspected that the defendant might have been armed.

Furthermore, the specificity of the last item of information, the shooting incident, distinguishes this case from State v. Joao, supra, in which information that the defendant was armed was held to be unreliable because it was without “adequate anchor, as to time and place.”

*225The sergeant also had reason to suspect that criminal activity was afoot. Because the sergeant acted on his own direct observations, which he articulated and specified at the hearing on the motion; it is obvious that the evidentiary requirement of reliable information as stated in Onishi and Joao, supra, was met. The sergeant also could have reasonably inferred that such dangerous criminal activity was possible. 1¶ does not matter that the officers did not immediately order ;the defendant out on stopping his car, or approach his car with drawn guns. Police are not required to take the most extreme precautions every time they approach someone they might suspect of being armed. Given that the sergeant could reasonably infer that the defendant was armed, it was reasonable for the sergeant to interpret the defendant’s bending forward as threatening. The bending forward was sufficient stimulus in this case to provoke a protective search. While the bending forward was an admittedly ambiguous act because it was consistent with both reaching for a gun and reaching for a wallet, the latter being the fact, it is unreasonable to ask the policeman faced with an instant decision to have faith in the option that puts his life in greater danger.1

Whether Officer DeCaires, who was at the car window where the defendant was seated, also felt threatened is of some weight in determining the reasonableness of the order out, but the record is silent on whether Officer DeCaires also had reason to know that the defendant was armed, and this must be contrasted with the sergeant’s reasonable apprehension, plus his twelve and one-half years of police experience, experience which could have made the sergeant more alert to dangerous possibilities.

I conclude that the ordering of the defendant out of his car was not an illegal seizure under either the United States or *226Hawaii Constitutions.

Given that the order out was reasonable, it cannot be said that the pat down searches of the defendant and his passenger were unreasonable in scope or intensity. The validity of the flashlight inspection depends on whether the initial stop and the order out were proper because those events were necessary to observe the pistol. As was stated in Coolidge v. New Hampshire, 403 U.S. 443, 466 (1970):

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 to incriminate 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 (emphasis added).

In State v. Hanawahine, 50 Haw. 461, 443 P.2d 149 (1968), this court held that a flashlight inspection of a vehicle incident to a lawful arrest, in that case a traffic arrest based on probable cause instead of a warrant, did not violate the constitutional prohibitions against illegal searches and seizures. Indeed, Hanawahine held that the initial sighting of the pistol during the flashlight scanning was not even a search. 50 Haw. 461 at 465, 443 P.2d 149 at 152 (1968). Hanawahine is indistinguishable from this case because the key point is not the nature of the prior intrusion, a traffic arrest in Hana-wahine and routine investigation plus a legitimate protective search in this case. The key point is that in both that case and this one the police were justified in their initial intrusion. They were where they had a right to be. Given what I view as the propriety of both the initial stop and the order out, the flashlight inspection of the car interior by an officer who remained completely outside the vehicle, and the seizure of anything in plain view thereof, did not violate the search and seizure provisions of either the United States or Hawaii Constitutions.

I would reverse.

On the dangers police face, see State v. Goudy, 52 Haw. 497, 504, 479 P.2d 800, 804 (1971), quoting Terry, 392 U.S. 1, 23-24 (1968).

Furthermore, we must bear in mind Chief Justice Warren’s warning in Terry v. Ohio, supra at 13-14 as to the limits of the exclusionary rule. The rule will only be effective in modifying police behavior to the extent that said behavior is motivated by a desire to obtain a conviction. To the extent that other motivation exists, such as the desire to absolutely eliminate any danger to the officer’s person, the police will continue the practice.