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Electronically Filed
Supreme Court
SCWC-12-0000020
30-SEP-2016
01:01 PM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Petitioner/Plaintiff-Appellee,
vs.
LINCOLN PHILLIPS,
Respondent/Defendant-Appellant.
SCWC-12-0000020
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000020; CR. NO. 08-1-1430)
SEPTEMBER 30, 2016
McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE NISHIMURA, IN PLACE
OF ACOBA, J., RECUSED, AND NAKAYAMA, J., CONCURRING AND
DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS
OPINION OF THE COURT BY POLLACK, J.
I. INTRODUCTION
The Intermediate Court of Appeals (ICA) vacated the
conviction of Lincoln Phillips for the attempted murder of his
wife Tara Phillips and remanded the case for a new trial. In
reaching this result, the ICA adopted an interpretation of the
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plain view doctrine that is contrary to this court’s prior
decisions and the protections and limits of the rights
guaranteed under Article I, Section 7 of the Hawaiʻi
Constitution. A proper application of these principles requires
the reversal of the ICA’s judgment on appeal and affirmance of
the trial court’s amended judgment of conviction.
II. BACKGROUND
A. Initial investigation
In the early morning of September 3, 2008, police
dispatch received a call from Lincoln Phillips summoning police
to his home. Phillips told the operator that “when he came home
he found injuries to his wife’s head.” Honolulu Fire Department
(HFD) personnel, emergency medical technicians (EMT), and
Officer Stanley Collins of the Honolulu Police Department (HPD)
were the earliest first responders to arrive at Phillips’ house.
HPD Officer Collins received the dispatch at about
3:54 a.m. The officer “had no idea” of the identity of the
victim or suspect. When Officer Collins arrived at the
residence, he saw Phillips “in his garage area.” According to
Officer Collins, Phillips seemed frantic and was “motioning
[him] to come forward” into the “garage area.” Officer Collins
understood the motioning to be “inviting me” and as an
indication that “this is the place you should come, this is the
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place you should be.” 1 Upon entering the garage, Officer Collins
asked Phillips what happened. Phillips responded, “It’s my
wife, it’s my wife,” and informed Officer Collins that his wife,
Tara Phillips (Tara), was upstairs in the bedroom. While
Phillips remained in the garage area, Officer Collins went
upstairs and saw Tara lying on a bed being attended by members
of the HFD. After spending “maybe a few seconds” upstairs,
Officer Collins returned to the garage, where Phillips had
remained, and Officer Collins “made contact with Phillips and
tried to get him calm.”
HPD Officer Robert Frank arrived at approximately 4:03
a.m. and joined Officer Collins and Phillips in the garage.
Officer Frank noted that Phillips “was sweating profusely,
pacing back and forth.” Phillips told the officers that “he
couldn’t sleep. So he got in his car, drove to the beach[] then
[to] the park at the end of Fort Weaver Road, [and] stopped at 7
Eleven.” When he “arrived home, [he] went upstairs and . . .
found his wife bleeding from her head.”
Officer Collins “tried to get [Phillips] calm” by
opening the door of Tara’s vehicle and having him sit in the
1
From this testimony, there is the clear indication that the
garage door was open when Officer Collins arrived. The fact that the garage
door was open when the police arrived is supported by Officer Collins’
testimony that Phillips told him “[t]hat he had left to go get something and
when he returned home he found his garage door opened”, and by trial
testimony of an EMT that when he arrived at the scene “[i]nitially we seen
[sic] the garage open.”
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passenger seat. Officer Collins asked him what happened, and
Phillips explained that “when he went upstairs initially he sat
on the futon” and “the lights were out.” “When he heard his
wife having difficulty breathing that’s when he turned on the
lights and discovered her injuries.”
Phillips said that the garage door was closed when he
drove off early that morning and open when he returned home.
Phillips explained that the garage door was defective: “it would
close with the remote, but it would not open with the remote.”
Phillips demonstrated the garage door remote to show the
officers that it was defective. Phillips closed the garage door
with the remote, and the officers “had to open it from the
inside panel of the garage” with a wall switch.
HPD Sergeant (Sgt.) Lloyd Keliinui arrived at
Phillips’ residence at approximately 4:00 a.m. Sgt. Keliinui
was told by other officers that Phillips had come home and had
“found out that his wife had been assaulted.” Based on the
information that “somebody came in” to the home, Sgt. Keliinui
was concerned that there was “somebody out there unidentified,
possibly roaming the neighborhood, with some kind of weapon.”
Sgt. Keliinui “instructed some of the initial officers to canvas
the area” and to “check for possible suspects or witnesses” and
evidence.
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HPD Officer John Tokunaga arrived at approximately
4:12 a.m. Sgt. Keliinui instructed him to “check the area” “in
the immediate vicinity of the residence” “for possible weapons
that may have been used.” Sgt. Keliinui did not inform Officer
Tokunaga of the general facts of the case. Officer Tokunaga did
not know “what kind of possible weapons [he] was looking for.”
He was looking for any “possible evidence that may have been
related to the victim’s injuries.” He was not aware of “anyone
in particular [that was] a suspect.” Officer Tokunaga did not
find any weapon or other possible evidence that may have been
related to Tara’s injuries outside of the residence.
Sometime before 4:30 a.m., Officer Tokunaga observed a
hammer “on a cooler” inside the garage, “on the left side of the
garage as you enter.” Officer Tokunaga “believe[d] there was a
spot of blood on top of the hammer,” which indicated that it was
a “possible weapon.” Officer Tokunaga also observed “water on
the handle area of the hammer” but not on the coolers. At the
time Officer Tokunaga observed the hammer, Officers Frank and
Collins were also in the garage with Phillips. Officer Tokunaga
informed Sgt. Keliinui and Officer Corrine Rivera about the
hammer that he had found.
During the initial investigation, Phillips’ garage
served as an impromptu center for the police response. Officer
Collins was “going back and forth” from the garage, trying to
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keep Phillips “calm”; “EMS [was] arriving, and the sector
sergeant [was] arriving”; and Officer Ahn was with Phillips in
the garage. HPD officers “were coming in and out” of the
garage, and “there was a lot of commotion going on because the
garage had kind of been the central place of the investigation.”
At some point during the “initial check of the
residence” by the police, Officer Frank blew his nose into a
napkin and “discarded it in the garbage can” that was “in the
garage.” 2 Officer Frank lifted the lid of the garbage container
“about 45 degrees” to discard the napkin, and observed rolled up
mesh clothing among discarded food boxes inside the garbage
container. The clothes were “just sitting in the garbage
container,” “on the same level” of the food boxes. Officer
Frank did not “disturb the contents of that trash can at all.”
Because the clothing “was rolled up,” Officer Frank did not
notice anything unusual about the clothes. Officer Frank
informed Sgt. Keliinui about the clothing “when [he] got the
chance to see him.”
HPD Officer Dennis Ahn arrived at approximately 4:30
a.m. and entered the open garage where he observed Officer
Collins, Sgt. Keliinui, and Phillips. Officer Collins
2
Although not precisely described by the parties, photographs in
the record indicate that the “garbage can” is a common plastic garbage
container, apparently a 32-gallon variety.
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instructed Officer Ahn to stay with Phillips, who “was the only
witness at the time.” Officer Ahn was assigned to watch
Phillips and help him “to just remain calm, and just to stay put
until a detective would come and get a statement from him.”
Later, Officer Ahn asked Phillips to move into the living room
so that he would be more comfortable and could see Tara as she
was being carried out, and because he was “obstructing the
walkway between walking in the garage and into the home.”
At approximately 5:15 a.m., Officer Ahn asked Phillips
to accompany him “to the Kapolei station, because a detective
would like to get his statement.” Officer Ahn informed Phillips
“that he was not under arrest.” “Phillips was very cooperative.
And he said yes.” Officer Ahn and Phillips arrived at the
Kapolei Police Station at approximately 5:30 a.m. where Phillips
was interviewed later that morning. At the end of the
interview, Phillips “just want[ed] to go see [his] wife,” and he
was permitted to leave the station.
At approximately 6:05 a.m., Evidence Specialist
Jasmina Eliza from the HPD Scientific Investigation Section
arrived at Phillips’ home. She was directed to photograph and
recover the hammer. Specialist Eliza recovered the hammer at
approximately 9:35 a.m. At the same time, she also recovered a
man’s shirt as well as a man’s pants from the trash can located
in the garage.
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At 12:25 p.m., HPD Detective Sheryl Sunia prepared an
Affidavit in Support of a Search Warrant (Affidavit). In her
Affidavit, Sunia requested a warrant allowing a search of, inter
alia, Phillips’ residence and car, along with receptacles, bags,
and containers found within. 3
Upon a finding that there was probable cause to
believe that “evidence of Attempted Murder in the Second Degree
. . . and/or Burglary in the First Degree” was present, a
district court judge issued a search warrant for Phillips’ car
and residence and “all closed compartments and/or containers”
therein at approximately 7:45 p.m. that evening. Among other
items, the warrant allowed HPD officers to search Phillips’
residence for “[a] plastic garbage can, including its contents,
located in the enclosed garage” as well as “all items of
evidence, including, but not limited to . . . articles of
clothing . . . [and] tools.”
B. Circuit Court
On September 10, 2008, Phillips was indicted on the
charge of attempted murder in the second degree in violation of
Hawaiʻi Revised Statutes (HRS) §§ 705-500, 4 707-701.5, 5 and 706-
3
A detailed summary of the factual assertions made in Sunia’s
Affidavit is set forth in the Discussion section, see infra Part III.C.
4
HRS § 705-500 (1993) states in relevant part the following:
(. . .continued)
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656. 6 Phillips pleaded not guilty to the charge on September 15,
2008, in the Circuit Court of the First Circuit (circuit court).
1. Motion to Suppress
On April 24, 2009, Phillips filed a Motion to Suppress
Evidence and Statements (motion). 7 Phillips sought to suppress
(. . .continued)
(1) A person is guilty of an attempt to commit a crime if the
person:(a) Intentionally engages in conduct which would
constitute the crime if the attendant circumstances were as the
person believes them to be; or
(b) Intentionally engages in conduct which, under the circumstances
as the person believes them to be, constitutes a substantial
step in a course of conduct intended to culminate in the
person’s commission of the crime.
(2) When causing a particular result is an element of the crime, a
person is guilty of an attempt to commit the crime if, acting with the state
of mind required to establish liability with respect to the attendant
circumstances specified in the definition of the crime, the person
intentionally engages in conduct which is a substantial step in a course of
conduct intended or known to cause such a result.
5
HRS § 707-701.5 (1993) states as follows:
(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.
6
HRS § 706-656 (Supp. 1996) states in relevant part as follows:
(1) Persons eighteen years of age or over at the time of the offense
who are convicted of first degree murder or first degree attempted murder
shall be sentenced to life imprisonment without the possibility of parole.
. . . .
(2) Except as provided in section 706-657, pertaining to enhanced
sentence for second degree murder, persons convicted of second degree murder
and attempted second degree murder shall be sentenced to life imprisonment
with possibility of parole. The minimum length of imprisonment shall be
determined by the Hawaii paroling authority; provided that persons who are
repeat offenders under section 706-606.5 shall serve at least the applicable
mandatory minimum term of imprisonment.
7
The Honorable Karen S.S. Ahn presided over the hearing on the
motion and the subsequent trial.
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from admission into evidence the hammer recovered from his
garage and a gray “men’s shirt with orange piping and gray men’s
shorts with blue lateral stripes,” recovered from a trash can
located in his garage. Phillips asserted that the hammer and
the clothing “were recovered without consent and without a
warrant,” in violation of his state and federal constitutional
rights.
In his argument to the court on the motion, defense
counsel acknowledged that “the hammer’s in plain view, there’s
no dispute about that,” but argued that the HPD could not seize
the hammer absent “exigent circumstances for the warrantless
seizure.” Regarding the clothing, defense counsel argued that
“whether or not . . . [it] was discovered inadvertently or was
in plain view,” there was both “a search and a seizure problem,”
particularly in light of the clothing being included as a basis
for the search warrant.
The State asserted that “[h]aving invited the police
into his home to investigate a possible crime,” Phillips at best
only had “a diminished privacy right” and, hence, could not
complain “that the police were unlawfully in his home.”
According to the State, it was “uncontroverted” that the hammer
was discovered in plain view and that “the case law is clear,”
under State v. Jenkins, 93 Hawaiʻi 87, 997 P.2d 13 (2000), that
if “an item is in plain view, [seizure] doesn’t violate a
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person’s right[s].” The State argued that the clothes were
admissible because “there was no search” when Officer Frank
“opened the trash can,” threw the napkin in, and “saw the
clothes” in “plain view.” The State maintained that, in the
alternative, even if Officer Frank’s actions did constitute a
search, the clothing was still admissible under the doctrine of
inevitable discovery. The State further contended that even
without the clothing, there was still probable cause for the
search warrant because the “fact that a crime was committed in
the house [was alone] enough for the search warrant.”
On December 29, 2009, the circuit court issued its
“Findings of Facts, Conclusions of Law, and Order Granting in
Part and Denying in Part Defendant’s Motion to Suppress Evidence
and Statements.” Regarding the hammer, the circuit court found
that when Officer Tokunaga was assigned to look for weapons, he
“knew no other facts and had no suspects in mind.” The court
concluded that Officer Tokunaga was “engaged in a lawful
intrusion” when he “inadvertently observe[d]” the hammer.
Because the blood on the hammer gave Officer Tokunaga probable
cause to believe it was evidence of a crime, the hammer was
lawfully seized under the plain view doctrine.
Additionally, the circuit court concluded that the
State had “carried its burden to show by clear and convincing
evidence that the clothing found within the covered trash
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container in the garage would inevitably have been discovered by
lawful means” under the search warrant later obtained. The
court reasoned that the search warrant was not constitutionally
defective because “notwithstanding the search warrant
affidavit[’s] reliance, in part, upon statements and items
illegally obtained, the affidavit[] absent those statements and
items contained sufficient basis upon which a district court
judge could find probable cause to search for all items
enumerated.”
The motion was therefore denied as to the hammer and
clothing discovered in Phillips’ garage. The court granted the
motion, in part, with respect to certain statements Phillips
made to HPD officers.
2. The Trial
The hammer and the clothing recovered from the garbage
container were received into evidence at trial. Officer Frank
identified his discarded tissue in State’s Exhibit 15, a
photograph of the garbage can showing the appearance of the
interior of the container when Officer Frank lifted its lid on
the morning of September 3, 2008. Police witnesses provided
testimony that Phillips had stated that he had placed the hammer
“where it was found.” A witness stated that he saw Phillips
wearing the clothing found in the garbage container the day
before the assault. An expert witness identified the red
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substance on the hammer and on the T-shirt as Tara’s blood
through DNA analysis.
In regard to Tara’s injuries, Dr. Cherylee Chang
testified that Tara arrived at the hospital on the day of the
attack in a coma. Tara was “unresponsive, not opening her
eyes,” and had no motor response. Tara’s principal injury was a
large laceration over the right side of her head. According to
Dr. Chang, Tara was “at imminent risk of death” because of
significant brain injuries; if she had not received emergency
medical treatment, she would have died “in the field.” In order
to save her life, Tara was placed into a medically induced coma.
Tara’s mother testified that Tara was in the hospital
in Honolulu for four months before being transferred to a
Veterans Affairs (VA) hospital near Tampa, Florida. At the time
Tara left Hawaiʻi, Dr. Chang felt that Tara “was in such bad
neurologic condition that it looked like she would be bed
bound.” Tara’s mother testified that Tara was never able to
live on her own after the attack and that she never regained any
memory of her attack. Tara died in the Tampa, Florida VA
hospital on April 19, 2010. 8
8
The record does not contain any information regarding a discharge
from the Florida VA Hospital or indicate that Tara was cared for at home or
with a family member; as noted above, Tara’s mother testified that Tara died
in the Florida VA hospital. There is, however, a potential inference from
the record that Tara was discharged from the Florida VA hospital four months
(. . .continued)
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The parties stipulated during trial that Tara’s “death
was unrelated to the September 3, 2008 attack.” Phillips
elected not to testify. In closing argument, Phillips’ counsel
argued that there was insufficient evidence to convict Phillips
of the charged offense.
On June 16, 2011, the jury found Phillips guilty of
attempted murder in the second degree. On August 29, 2011, the
Judgment of Conviction and Sentence was issued by the circuit
court, sentencing Phillips to life imprisonment with the
possibility of parole, with restitution to be determined at a
subsequent proceeding.
At the restitution hearing, the State requested that
Tara’s mother be reimbursed for funeral and related expenses of
$6,530. Phillips argued that he should not be liable for any
additional payment because he had made “very large payments for
a couple years to” Tara’s mother; Tara died well over a year
after the attack; and there was no evidence presented or
doctor’s testimony regarding the cause of death. In response,
the circuit court noted that Tara was in a coma, suffered from
head injuries, had to be taken to a Florida nursing home, and
would not have died but for Phillips’ conduct. Following the
(. . .continued)
before her death, with the further inference that Tara was presumably
readmitted before her death.
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restitution hearing, the court issued an Amended Judgment of
Conviction and Sentence, which ordered Phillips to pay $6,530 in
restitution.
On January 20, 2012, Phillips filed a timely notice of
appeal from the amended judgment of conviction.
C. Intermediate Court of Appeals
Phillips contended to the ICA that his rights under
the Fourth Amendment to the United States Constitution and
Article I, Section 7 of the Hawaiʻi Constitution were violated
when the circuit court denied his motion to suppress. Phillips
argued that the circuit court erred in applying the plain view
doctrine to the discovery of the hammer and in concluding that
the State had presented clear and convincing evidence that the
clothing was admissible under the inevitable discovery exception
to the exclusionary rule. Finally, Phillips argued that the
circuit court erred in assessing $6,530 in restitution.
1. The Hammer
Phillips asserted that the plain view doctrine was
inapplicable to the seizure of the hammer, and he argued that
the circuit court should have instead applied the open view
doctrine. Phillips acknowledged that there “was nothing
intrusive about Officer Tokunaga’s vantage point because he was
permitted to be in [Phillips’] garage by [Phillips] himself.”
Officer Tokunaga viewed the hammer from a “public vantage
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point,” and therefore, “the plain view doctrine should not be
applied.” “Absent a warrant [or] exigent circumstances at the
time of its seizure, since the hammer was recovered from a
constitutionally-protected location, evidence of the hammer
should have been suppressed under the open view doctrine.”
Phillips argued in the alternative that, under the plain view
doctrine, the circuit court should have suppressed the evidence
because the discovery was not inadvertent.
In its Answering Brief, the State argued that
“discovery and seizure of the hammer was lawful under the ‘plain
view’ exception to the warrant requirement.” The State
maintained that Officer “Tokunaga’s observation of the hammer
with a stain that resembled blood in the garage of the residence
was an ‘inadvertent discovery,’” because an inadvertent
discovery is one in which police officers do not “know in
advance the location of certain evidence and intend to seize it,
relying on the plain view doctrine only as a pretext.” The
State argued:
Officer Tokunaga’s discovery of the hammer was inadvertent.
Here, Defendant had no reasonable expectation of privacy in
his garage during a lawful investigation into the
circumstances surrounding Tara’s injuries initiated by
Defendant’s 911 call to the police. The police officers
did not anticipate the discovery of the evidence until
Officer Tokunaga actually observed the hammer.[ 9]
9
The State acknowledged that “although the United States Supreme
Court has eliminated inadvertent discovery as a requirement of the ‘plain
view’ exception, the Hawaiʻi Supreme Court has declined” to eliminate that
(. . .continued)
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The State contended that the police did not know in advance that
the evidence would be there; therefore, the observation of the
hammer was an inadvertent discovery, and the circuit court
properly admitted the hammer into evidence.
In his Reply, Phillips asserted that “both sides have
conceded that the issue boils down to whether Officer Tokunaga’s
discovery of the hammer was ‘inadvertent.’” Phillips argued
that discovery of the hammer was not inadvertent just because
“the police did not know in advance that the evidence would be
there.” Rather, Phillips maintained that when Officer Tokunaga
discovered the hammer, he “was specifically looking for evidence
related to the attack on the complainant.”
Phillips contended that “police investigation of a
crime or [his] house being established as a crime scene” does
not constitute “exigent circumstances such that the police could
violate [his] constitutional rights.” He did not have an
“affirmative duty . . . to declare or establish his
constitutional right to privacy in his own home.” Phillips
argued that there “was no evidence or testimony that established
exigent circumstances justifying seizure of the hammer. To the
(. . .continued)
requirement in order to prevent “pretextual [A]rticle 1, Section 7 activity.”
While claiming that the discovery was inadvertent, the State alternatively
“urge[d the] appellate court to reconsider Meyer and hold that ‘inadvertent
discovery’ is not a requirement for the ‘plain view’ exception to the warrant
requirement.”
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contrary, the police could have quite easily secured the
residence and obtained a warrant.”
2. The Clothing
Phillips declared that the circuit court did not
conduct an “analysis under the plain view doctrine to attempt to
justify the seizure of the clothing.” According to Phillips,
“the court rejected any application of the plain view doctrine
and instead justified the seizure of the clothing under the
doctrine of inevitable discovery.”
Phillips contested the circuit court’s finding “that
the search warrant would still have been issued even without
information of the illegally obtained evidence.” Rather,
Phillips argued, the circuit court improperly concluded that the
search warrant would have been issued because “the court
fail[ed] to cite to any findings of fact in support of this
contention.” Phillips contended that his position was bolstered
by the fact that “despite all of the illegally-obtained evidence
and statements, the police still did not feel that probable
cause existed to arrest [him] after his interview.”
Phillips also argued that, even if the search warrant
would hypothetically have issued, the State did not show that
the clothing would have still been there when the search warrant
was executed. Phillips maintained that, while he did not mean
to suggest he had “a right to discard or destroy evidence,” the
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lower court improperly “concluded that the State demonstrated by
clear and convincing evidence that [Phillips] was incapable of
retrieving and discarding the clothing from the garbage can”
before the search warrant was executed at 7:45 p.m.
The State countered that “the attempted murder of
Tara” in the house and the hammer “found in the garage [with] a
stain that resembled blood on it” constituted “sufficient
probable cause to issue the warrant.” The State contended that
Phillips could not have removed evidence from his house because,
as noted in the Affidavit in Support of Search Warrant, “the
vehicle and residence were being secured by the presence of
police units on scene.” The State therefore maintained that
“the circuit court was correct in concluding that ‘the clothing
. . . would inevitably have been discovered by lawful means.’”
Phillips replied that because “three major bases of
the warrant application [were] invalid”--the hammer, the clothes
and much of Phillips’ statements to the police--“it cannot be
assumed that the warrant [was properly] issued or that it would
have specified [the trash can] to be searched.” Phillips
maintained that even “if there did exist sufficient probable
cause to issue the search warrant, the State did not show by
clear and convincing evidence that the clothing recovered from
[Phillips’] home would still have been there.” The warrant was
not executed until “approximately sixteen hours later,” and
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there “was no testimony regarding whether the police would have
let [Phillips] back into his house after his release from
custody.”
3. Restitution
Phillips argued that because the parties stipulated
that Tara’s death was “unrelated to the September 3, 2008 attack
. . . it must be accepted as fact.” Phillips maintained that
“Tara died a full eighteen months after the attack.” Phillips
argued that “[t]he record was completely devoid of any evidence
or testimony that her death was the result of the September 3,
2008 attack on her”; therefore, the circuit court erred when it
ordered him to pay restitution.
The State responded that the circuit court correctly
recognized that “Tara didn’t recover from the injuries she
sustained as a result of Defendant’s attack upon her,” “was in a
coma and . . . had to be taken to a Florida nursing home, and
there died . . . and would not have died but for Defendant’s
conduct.” The State contended that the circuit court properly
concluded that there was a nexus between Phillips’ conduct and
Tara’s death, and therefore, it “did not err by ordering
Defendant to pay restitution.”
In his Reply, Phillips argued that the circuit court
“did not rely on any evidence to overcome the stipulated fact
that the complainant’s death had nothing to do with the attack
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on her.” Because the “conclusions by the court did not come
from any evidence -- testimonial or otherwise”--Phillips argued
that he had “no opportunity to challenge the court’s findings
through traditional methods of cross examination or lack of
foundation,” and therefore, the order of restitution was not
proper.
4. Summary Disposition Order
On August 30, 2013, the ICA issued a Summary
Disposition Order (SDO). The ICA focused on the “inadvertent
discovery” requirement for a “legitimate plain view
observation.” In determining the meaning of “inadvertent,” the
ICA relied upon a dictionary definition of inadvertent as
“unintentional.” The ICA noted that Officer Tokunaga’s
supervisor instructed him “to search the premises for the weapon
used in the attack” on Tara. “A warrant certainly could have
been obtained to search the premises given that an attempted
murder appeared to have taken place there.” Thus, the ICA
concluded that “the search and discovery of the hammer were
certainly intentional” and, thus, could not “be described as
inadvertent.” The ICA held that “the intentional search and
seizure of the hammer under the plain view doctrine was not
valid” and that “the circuit court erred in not suppressing the
evidence of the hammer.” The ICA concluded that the issues
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relating to the clothes and restitution were moot, vacated
Phillips’ conviction, and remanded the case for a new trial.
The dissent to the ICA opinion “agree[d] that the
Circuit Court erred in its application of the plain view
doctrine, but only because . . . it was mistaken to apply the
doctrine at all.” The dissent contended that “Phillips
impliedly consented to a routine investigation into the
circumstances of the assault, and the seizure of the hammer was
thereby justified.”
The dissent reasoned that if the inadvertency
requirement was held “to equate to intentionality, then,
logically, the plain view doctrine can never apply to a seizure
of evidence that is discovered during a search intended
precisely to turn up evidence of the sort discovered.” The
dissent nevertheless avoided “the use of the plain view doctrine
entirely” and used implied consent as the “starting point for
[the] analysis.” The dissent “would rule that Phillips
impliedly consented to [the] investigation” when he “called 911
to report that his wife was attacked, and hastened responding
officers into his home.” And “such consent was valid until such
time as the initial investigation ceased; he revoked, or limited
the scope of, that consent; or he became a suspect.” The
dissent noted that “Phillips never evinced any desire to limit
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the scope of police activity” and “seemed intent on facilitating
the investigation.”
The dissent concluded that the facts provided in
Detective Sunia’s Affidavit, including the lawfully discovered
hammer, established probable cause for a search warrant without
the inclusion of the clothes discovered by Officer Frank.
Further, “[t]he evidence in the record clearly and convincingly
establishes that the authorities would not have permitted
Phillips to re-enter his house -- a crime scene -- to dispose of
anything therein.” Thus, in the dissent’s view, the circuit
court was correct in determining that the clothing would
inevitably have been discovered pursuant to the execution of the
search warrant.
The dissent also would have affirmed the circuit
court’s award of restitution, based on the evidence establishing
that Tara suffered head injuries, was in a coma after the
attack, and later had to be put in a nursing home where she
eventually died. Further, the dissent pointed to evidence
presented to the circuit court regarding the lethality of her
injuries in concluding that Phillips’ responsibility for his
conduct was not extinguished.
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D. Application for Writ of Certiorari
1. The hammer
The State argues that the ICA “gravely erred in
holding the circuit court was wrong by not suppressing the
evidence of the hammer.” The State maintains that the search
and seizure of the hammer was legitimate under the implied
consent theory, as described by the ICA dissent. Alternatively,
the State argues that the seizure of the hammer was legitimate
under the plain view doctrine because the police “did not
anticipate discovery of the evidence until Officer Tokunaga
actually discovered the hammer”; thus, the “observation of the
hammer was an ‘inadvertent discovery.’” The State additionally
requests this court to “hold that inadvertent discovery is not a
requirement for the plain view exception to the warrant
requirement.”
In his Response, Phillips contends that the ICA “did
not gravely err in concluding the circuit court was wrong by not
suppressing evidence of the hammer.” Phillips argues that the
seizure of the hammer was improper because Phillips “did not
impliedly consent to a search,” and implied consent was not
established in the evidentiary record because it “was never a
consideration, never argued[,] and never even mentioned at the
hearings on the motion to suppress.” To decide this case on
implied consent, when relevant facts and testimony were not
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developed below, “would implicate [Phillips’] due process right
to confront the witnesses with respect to the issue of implied
consent.” Phillips also echoed the ICA’s holding that “the
discovery of the hammer was not inadvertent because Officer
Tokunaga was ordered to search the premises,” and therefore,
“the search and seizure of the hammer was unconstitutional.”
2. The clothing
The State contends that the ICA “gravely erred in
concluding that respondent’s other points on appeal are moot,
and thereby fail[ing] to render a decision with regard to the
evidence of clothing.” The State maintains that “because the
circuit court’s ruling with regard to the clothing involves an
evidentiary issue, it should have been addressed by the ICA
majority before it remanded the case for a new trial.” The
State also asserts that “the circuit court correctly applied the
inevitable discovery doctrine” in admitting the clothing into
evidence.
In his Response, Phillips agrees with the State that
“the ICA majority gravely erred in concluding [Phillips’] other
points on appeal are moot,” but he argues that “this court
should suppress evidence of the clothing and vacate the circuit
court’s order of restitution.” Phillips submits that “the State
did not present clear and convincing evidence that [the
clothing] would have been inevitably discovered,” maintaining
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both that the warrant may not have issued absent the hammer and
that the State failed to show that the clothing would have
remained in the garbage container until the warrant was
executed.
3. Restitution
The State urges affirmance of the circuit court’s
order of restitution because there is “a sufficient nexus for
the circuit court to order restitution for Tara’s funeral
expenses.”
Phillips responds that the circuit court improperly
awarded restitution because the circuit court “did not rely on
any evidence to overcome the stipulated fact that the
complainant’s death had nothing to do with the attack on her.”
III. DISCUSSION
A. Police entry into Phillips’ garage
The Fourth Amendment to the United States Constitution
protects the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures” by the government. Similarly, article I, section 7 of
the Hawai‘i Constitution provides that the “right of the people
to be secure in their persons, houses, papers and effects
against unreasonable searches, seizures and invasions of privacy
shall not be violated.”
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It is well established that warrantless searches and
seizures of items within a constitutionally protected area are
“presumptively unreasonable unless there is both probable cause
and a legally recognized exception to the warrant requirement.”
State v. Bonnell, 75 Haw. 124, 137, 856 P.2d 1265, 1273 (1993).
However, “before the issue of the ‘reasonableness’ of the
activity is confronted, it must first be determined whether the
activity did, in fact, constitute a search and seizure within
the scope of the Fourth Amendment” and the Hawai‘i Constitution.
State v. Kaaheena, 59 Hawai‘i 23, 28, 575 P.2d 462, 466 (1978)
(emphases added) (quoting Katz v. United States, 389 U.S. 347,
351 (1967)). This is because the Fourth Amendment and article
I, section 7 do not apply unless there has been a “search” or a
“seizure.” 1 Wayne R. Lafave, Search & Seizure § 2.1 (5th ed.
2013) (“The words ‘searches and seizures,’ . . . are terms of
limitation. Law enforcement practices [are not subject to the
Fourth Amendment] unless they are either ‘searches’ or
‘seizures.’” (quoting Anthony G. Amsterdam, Perspectives on the
Fourth Amendment, 58 Minn. L. Rev. 349 (1974))). “[T]he Fourth
Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection.” State v. Stachler, 58
Haw. 412, 416, 570 P.2d 1323, 1326 (1977) (emphases added)
(quoting Katz, 389 U.S. at 351).
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To determine whether a police entry constitutes a
“search” within the meaning of the Fourth Amendment and the
Hawai‘i Constitution, two tests have emerged: (1) the “Katz
reasonable expectation of privacy test,” State v. Kender, 60
Haw. 301, 303, 588 P.2d 447, 449 (1978), and (2) the
Jones/Jardines trespass-intrusion test, Florida v. Jardines, 133
S. Ct. 1409 (2013); United States v. Jones, 132 S. Ct. 945
(2012).
The Katz doctrine provides that only government
intrusions into areas, objects, or activities in which an
individual has exhibited a “reasonable expectation of privacy”
are searches subject to the protections of the Fourth Amendment.
Katz, 389 U.S. at 360 (Harlan, J., concurring). To determine
whether a person’s expectation of privacy is reasonable, “there
is a twofold requirement, first that a person . . . exhibited an
actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as
[objectively] ‘reasonable.’” Id. at 361 (Harlan, J.,
concurring); Stachler, 58 Hawai‘i at 416, 570 P.2d at 1326.
Of recent vintage is the Jones/Jardines trespass-
intrusion test. Jones and Jardines recognized a trespass-
intrusion test based on the property-based understanding of
Fourth Amendment search and seizure jurisprudence. What unites
Jones and Jardines is the bedrock principle that the government
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cannot trespass or physically intrude into a constitutionally
protected area for the purpose of gaining evidence without
complying with the strictures of the Fourth Amendment. See
Jones, 132 S. Ct. at 950—951; Jardines, 133 S. Ct. at 1414—17.
Under the Jones/Jardines trespass-intrusion test, the first
question is whether there is a trespass or physical intrusion to
persons, houses, papers, or effects. A physical intrusion is
the act of “entering without permission.” Black’s Law
Dictionary 951 (10th ed. 2014). Second, it must be determined
whether the underlying purpose of the police, objectively
examined and at the time of the trespass or physical intrusion,
is to gather evidence. See Jardines, 133 S. Ct. at 1415—17.
Once both requisites are satisfied, a search under the
Jones/Jardines trespass-intrusion test has occurred. See Jones,
132 S. Ct. at 951 (explaining that a search occurs where there
is a “[t]respass . . . conjoined with that what was present
here: an attempt to find something or to obtain information”).
The inquiry then shifts to whether there is an applicable
exception to the warrant requirement that would allow the
otherwise unauthorized governmental activity. See Jardines, 133
S. Ct. at 1415—17; Jones, 132 S. Ct. at 951—53. 10
10
The Jones/Jardines trespass-intrusion test and the Katz
reasonable-expectation test are alternative tests. See Jardines, 133 S. Ct.
at 1418 (Kagan, J., concurring). Hence, in cases where a Fourth Amendment
search occurred under one of the tests, there is no need to engage in an
(. . .continued)
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1. There was no search under the Katz reasonable expectation
of privacy test
As stated, under Katz, to determine whether a person’s
expectation of privacy is reasonable, a person must exhibit an
actual (subjective) expectation of privacy, and that expectation
must be one that society is prepared to recognize as objectively
reasonable.
a. Subjective expectation of privacy
Turning first to the subjective prong, the
determination of whether or a person “exhibited an actual
expectation of privacy,” State v. Texeira, 62 Haw. 44, 48, 609
P.2d 131, 134 (1980), is through a fact-specific process,
“considering all factors on a case-by-case basis,” State v.
Ward, 62 Haw. 509, 515, 617 P.2d 568, 572 (1980). Here,
Phillips called the 911 operator and requested the police and
ambulance be sent to his home because Tara had been assaulted
and was seriously injured. When police arrived, the garage door
was open and the interior of the garage was exposed to public
(. . .continued)
inquiry under the other test. See Jardines, 133 S. Ct. at 1417 (declining to
use the Katz test because the approach that the Court announced in Jones was
found applicable). Conversely, where no Fourth Amendment search is found
under one of the tests, the inquiry does not stop there, and the court must
determine whether a search occurred under the other test. See Jones, 132 S.
Ct. at 953 (stating that where there is no search under the Jones/Jardines
test, such as in “[s]ituations involving merely the transmission of
electronic signals without trespass,” a Katz analysis must be conducted
(emphasis added)).
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view, including to the police officers who responded to the
scene. Further, Phillips motioned from within the garage for
the responding officer to join him inside. The officer
described Phillips’ gesture as “[m]ore or less inviting me that,
yeah, this is the place you should come, this is the place you
should be.” Phillips did not contest that his intent was to
invite the officer into the garage.
The record also does not contain any actions or
statements by Phillips that would indicate that he expected the
garage area to remain private. To the contrary, until leaving
to go to the police station later that morning, Phillips
remained with officers of the HPD, primarily in the garage area.
Phillips has not disputed his lack of a subjective expectation
of privacy at any point during this case. Phillips acknowledged
this point at the hearing on the motion to suppress, stating
that the police were in the garage “because, you know,
[Phillips] had called 911 and they were -- they had a right to
be there at the time.” Phillips also conceded this to the ICA,
stating that “[t]here was nothing intrusive about Officer
Tokunaga’s vantage point because he was permitted to be in
[Phillips’] garage by [Phillips] himself” and that Officer
Tokunaga “was allowed to be in [Phillips’] garage.”
In sum, Phillips did not exhibit an actual
(subjective) expectation of privacy regarding the presence of
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police in his garage for the following reasons: Phillips
requested the 911 operator to send the police to his home
because Tara had been assaulted; when the police arrived, the
garage door was open and the interior of the garage was exposed
to public view; Phillips invited the police officers to enter
the garage; and the totality of his conduct while the police
were present. 11
b. Objective expectation of privacy
Even if Phillips had exhibited an actual expectation
of privacy, it “must be one that society would recognize as
objectively reasonable” in order for the constitutional
protections against unreasonable searches and seizures to
11
The concurring and dissenting opinion (dissent) makes the
accusation that our analysis places on “the defendant . . . an affirmative
obligation to establish that he or she did not consent to a search of a
constitutionally protected area.” Dissent at 3. No such burden is
established. As has always been the case, the defendant need only establish
that the police breached his or her reasonable expectation of privacy under
Katz or that the police engaged in a Jones/Jardines type of prohibited
conduct. If a search has occurred, then the State must demonstrate the
existence of an exception to the search warrant requirement. In this case,
for example, consent would be a possible warrant exception in analyzing
whether the seizure of the hammer, the opening of the closed garbage bin in
Phillips’ garage, and the subsequent seizure of the clothing in the garbage
bin were constitutional.
Contrary to the dissent’s view, we do not find Phillips’
invitation for the police to enter the exposed area of his garage to be the
same as the requisite consent needed to authorize the warrantless acts in
this case. We therefore analyze the constitutionality of those acts under
the plain view doctrine and the doctrine of inevitable discovery. See infra.
As to the police officers’ entry into Phillips’ garage, we do not reach
whether an exception to the warrant requirement was present because, at the
outset, the relevant circumstances indicate that Phillips did not have a
reasonable expectation of privacy in the exposed areas of the garage and
that, therefore, the act of entry was not a search.
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attach. Bonnell, 75 Hawaiʻi at 139, 856 P.2d at 1274; Kaaheena,
59 Hawai‘i at 28, 575 P.2d at 466. The police did not enter
Phillips’ garage of their own initiative; rather, they were
responding to Phillips’ 911 call for police assistance and his
gesturing them into the garage. Hence, Phillips’ expectation of
privacy was diminished. See State v. Lopez, 78 Hawaiʻi 433, 442,
896 P.2d 889, 898 (1995) (holding that the defendant’s
expectation of privacy in his home was diminished by permitting
entry by the police); United States v. Williams, No. 14-CR-
20419, 2015 WL 730098, at *8 (E.D. Mich. Feb. 19, 2015) (holding
that when the defendant invited the initial responders into his
apartment to tend to his medical needs, he sacrificed much of
his expectation of privacy); State v. Pearson–Anderson, 41 P.3d
275, 279 (Idaho Ct. App. 2001) (“[B]y making the 911 call, [the
defendant] diminished her reasonable expectation of privacy
within her home by summoning police officers to the premises
with an implied representation that an emergency was
occurring.”).
In addition, Phillips’ actions demonstrate that he did
not take precautions to insure his privacy in the garage. See
State v. Holbron, 65 Haw. 152, 154, 648 P.2d 194, 196 (1982)
(stating that the determination of whether a defendant has a
reasonable expectation of privacy in a particular place depends,
in part, on the precautions he or she takes to insure the
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preservation of his or her privacy). Indeed, Phillips allowed
the garage to become the center of activity for the initial
investigation, including the location of Phillips’ demonstration
of how the purported assailant gained access to the home through
the malfunctioning garage door. By knowingly and voluntarily
exposing the interior of his garage to the police, cf. State v.
Dias, 62 Haw. 52, 56, 609 P.2d 637, 640 (1980) (“Conduct open to
view and conversations audible to persons standing outside of a
building constitute activities knowingly exposed to the
public.”), and by readily allowing the area to be used by the
emergency responders, any expectation of privacy in the exposed,
visible interior of the garage was not “one that society would
recognize as objectively reasonable.” Bonnell, 75 Haw. at 139,
856 P.2d at 1274; Kaaheena, 59 Haw. at 28, 575 P.2d at 466. 12 If
Phillips did not wish the garage to be entered into and its
interior observed, he could have kept it closed and secured, or
he could have refrained from motioning for the police to enter
12
See also People v. Hobson, 525 N.E.2d 895, 898—99 (Ill. App.
1988) (reasoning that the defendant’s act of opening the overhead door of his
garage indicated that any expectation of privacy he possessed as to the
exposed garage was not one that society would recognize as reasonable);
Tracht v. Comm’r of Pub. Safety, 592 N.W.2d 863, 865 (Minn. Ct. App. 1999)
(entry into open garage for the purpose of knocking on the exposed service
door was not a Fourth Amendment search); State v. Akins, No. C4-99-1066, 2000
WL 271986, at *3 (Minn. Ct. App. Mar. 14, 2000) (no search occurred when a
police officer, without a warrant, entered an open garage “to talk to a
resident who himself is using the garage as a means of access”).
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and directed them to access his home from another entryway. Cf.
Dias, 62 Haw. at 56, 609 P.2d at 640.
Therefore, with neither a subjective expectation of
privacy, nor one that society would recognize as objectively
reasonable, the police officers that Phillips summoned into his
garage did not intrude upon Phillips’ reasonable expectation of
privacy by entering the garage. 13 Having found that the police
did “not invade an individual’s legitimate expectation of
privacy, ‘there is no “search” subject to the Warrant Clause.’”
State v. Meyer, 78 Hawai‘i 308, 312, 893 P.2d 159, 163 (1995)
(quoting Illinois v. Andreas, 463 U.S. 765, 771 (1983)). 14
13
We do not find, as the dissent contends, that “because Phillips
invited police in, no constitutionally regulated search occurred when the
police entered Phillips’ home and garage.” Dissent at 2. A search and
seizure occurred, which necessitated a warrant or an exception to the warrant
requirement, when the police recovered the hammer and clothing and opened a
closed receptacle inside the garage. See infra Part III.B—C. We hold only
that the police officers’ act of entering Phillips’ exposed garage, upon
Phillips’ invitation, did not constitute a search.
14
The facts of this case similarly do not result in a finding of a
Fourth Amendment search or seizure pursuant to the Jones/Jardines trespass-
intrusion test. This case lacks the hallmark facts involved in both Jones
and Jardines. At the threshold, this case does not meet the first
requirement of the Jones/Jardines test because there was no trespass or
physical intrusion, that is, the act of “entering without permission.”
Black’s Law Dictionary at 951. Phillips called police dispatch to summon the
police to his home and, upon their arrival, affirmatively motioned them to
come forward into his garage.
Not only was there an absence of trespass or physical intrusion
in this case, but the purpose of the police when they entered Phillips’
garage, objectively examined, was not to conduct a search and collect
evidence. Cf. Jones, 132 S. Ct. at 949; Jardines, 133 S. Ct. at 1416.
Police entered Phillips’ garage to respond to Phillips’ report of a crime, to
prevent any impediment to the medical responders who were treating Tara, and
to assist Phillips or Tara as requested or needed. Thus, the police
officers’ act of entering the garage was not a search under Jones and
Jardines. On the other hand, the act of recovering the hammer and the
(. . .continued)
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2. Prior decisions of this court
Our determination that Phillips did not have a
reasonable expectation of privacy in exposed areas of the garage
and, thus, that no “search” occurred when the police entered the
garage is in accordance with prior decisions of this court. In
State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973), evidence was
gathered by an undercover agent after he was willingly admitted
into a home by the resident. Id. at 514, 510 P.2d at 1067. No
warrant had been obtained by the police. See id. In ruling the
evidence admissible, this court agreed with the analysis of the
Supreme Court in Lewis v. United States, 385 U.S. 206 (1966):
“It is unnecessary to determine whether the facts of this case
come within one of [the search warrant] exceptions, however, for
we hold that [the Officer’s] actions did not constitute a search
or seizure as regulated by the Fourth Amendment.” 15 Roy, 54 Haw.
(. . .continued)
clothing was a seizure that required a warrant or an exception to the warrant
requirement. See infra Part III.B—C.
The dissent disagrees with our conclusion that there was no
intent to search concurrent with the police’s entry, Dissent at 31—32, but
the dissent, in support of this contention, points only to portions of the
record purporting an intent to search after the police entered the garage.
Cf. Florida v. Jardines, 133 S. Ct. 1409, 1415—17 (describing a search as
trespass accompanied by a concurrent intent to gather evidence).
15
In Lewis, a defendant invited an undercover agent into his home
to sell the officer illegal narcotics. Lewis, 385 U.S. at 208. The
defendant contended that “any official intrusion upon the privacy of a home
constitutes a Fourth Amendment violation.” Id. In rejecting the defendant’s
analysis and holding that the entry of the officer into the defendant’s home
was “no breach of privacy,” the Court adopted the following analysis:
(. . .continued)
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at 515, 510 P.2d at 1068 (emphasis added). Under such
circumstances, the Roy court concluded, “No warrant to ‘search
and seize’ is required . . . .” Id. at 516, 510 P.2d at 1068
(emphasis added). 16 “It is clear beyond peradventure . . . that
the Fourth Amendment to the U.S. Constitution . . . does not
prohibit the introduction into evidence . . . [of items]
‘seized’ by [the officer.]” Id. at 516—17, 510 P.2d at 1068.
The court reached a similar conclusion under article I,
(. . .continued)
[T]his case involves the exercise of no governmental power
to intrude upon protected premises; the visitor was invited
and willingly admitted by the suspect. It concerns no
design on the part of a government agent to observe or hear
what was happening in the privacy of a home; the suspect
chose the location where the transaction took place. It
presents no question of the invasion of the privacy of a
dwelling . . . .”
Id. at 212 (emphases added). Thus, the Court found that under the
circumstances of a willing invitation, the protections of the Fourth
Amendment are not implicated. Lewis rests upon a determination that the
defendant lacked a reasonable expectation of privacy.
16
Under the dissent’s approach, which treats entries into homes and
curtilages as searches per se, the undercover agent in Roy would not have
been able to enter the home even upon the willing invitation of the resident.
This is so because consent must be “knowingly, freely and intelligently”
given, State v. Patterson, 58 Haw. 462, 470, 571 P.2d 745, 750 (1977), and
“[c]onsent, based upon . . . material nondisclosures, can hardly be viewed as
either voluntary or intelligent.” State v. Quino, 74 Haw. 161, 175, 840 P.2d
358, 364 (1992). Thus, under the dissent’s consent theory, no undercover
police officer will ever be able to enter homes and curtilages without first
disclosing his or her real identity in order to procure voluntary, knowing,
and intelligent consent, rendering undercover operations in homes and
curtilages virtually impossible. This result plainly contradicts the holding
of Roy.
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section 7 of the Hawaiʻi Constitution. 17 Id. at 517, 510 P.2d at
1068.
Thus, this court has held that, under the
circumstances of an invitation to and voluntary admittance of a
government agent into a home by a resident, the protections of
article I, section 7 are not implicated as to the entry into the
home, because such an entry is not a search in a constitutional
sense. Applying Roy to the present case, it is clear that
Phillips invited and willingly admitted police into his garage
on the morning of September 3, 2008, and thus, the protections
of article I, section 7 were not implicated and the police’s
entry into Phillips’ garage was not a search. 18
In Lopez, police responded to reports of a home
invasion and robbery. 78 Hawaiʻi at 437, 896 P.2d at 893.
Police arrived while the residents were at home; following an
17
Roy references article I, section 5 of the Hawaiʻi Constitution;
article I, section 5 was renumbered to article I, section 7 following the
1978 Constitutional Convention (Ratified November 7, 1978). State v. Okubo,
3 Haw. App. 396, 399 n.4, 651 P.2d 494, 498 n.4 (1982), aff’d, 67 Haw. 197,
682 P.2d 79 (1984).
18
In State v. Davidsen, 129 Hawaiʻi 451, 303 P.3d 1228 (App. 2013)
(mem), the holding of Roy was found to include situations in which the
resident is specifically aware that the person he or she has admitted into
his or her home is a law enforcement officer. In Davidsen, police
investigating a theft came to a home to investigate the sale of property
alleged to have been taken in the theft. Id. at *1. The ICA noted that
“[w]hat a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection,” id. at *2
(alteration in original) (quoting Katz, 389 U.S. at 351), and that the
resident “no longer maintain[ed] an actual expectation of privacy in those
areas” of his home, id. at *3.
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“initial investigation,” both police and the residents left the
home. Id. Based on a suspicion that the home invasion and
robbery were motivated by illicit drug activity by the
residents, the police returned later without permission or
obtaining a search warrant and recovered evidence of drugs. Id.
at 438, 447, 896 P.2d at 894, 903. The drug evidence was ruled
the result of an illegal search. Id. at 447, 896 P.2d at 903.
The State had argued that, based on the 911 call, the residents’
reasonable expectation of privacy in their home had been
diminished. Id. at 441, 896 P.2d at 897. This court partially
agreed.
When the police initially entered the [residents’] home to
investigate the robbery that had just taken place, they did
so with the [resident’s] permission. Thus, during the
course of this initial investigation, the [resident’s]
expectation of privacy in their home was, as the
prosecution contends, “diminished.”
Id. at 442, 896 P.2d at 898 (emphases added). That is, when a
resident permits police to enter his or her home to investigate
a crime or for other purpose, the resident has not exhibited a
reasonable expectation of privacy into areas knowingly exposed,
and hence, the police’s entry would not qualify,
constitutionally speaking, as a search. 19
19
However, that expectation “terminated when the police and the
[residents] closed the doors and left the . . . residence.” As soon as that
occurred, “the [residents’] expectation of privacy in their home was
completely restored.” Lopez, 78 Hawaii at 442, 896 P.2d at 898. Thus, only
following the restoration of the residents’ expectation of privacy did police
activities implicating article I, section 7 occur: “We . . . hold that [the
officer’s subsequent] entrance into the . . . home, whatever the purpose,
(. . .continued)
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Thus, these decisions demonstrate that this court will
review an expectation of privacy according to the circumstances
presented, rather than assume that a reasonable expectation of
privacy exists solely based on a location. See Ward, 62 Haw. at
515, 617 P.2d at 572; Stachler, 58 Haw. at 416, 570 P.2d at
1326. Roy and Lopez indicate that a resident, who invites and
willingly admits an agent of the government into his or her
home, may not claim a reasonable expectation of privacy into
those areas knowingly exposed. Here, as in Roy and Lopez, the
police were invited by Phillips into the “garage area” through
his 911 call, his beckoning of police “to come forward” into the
open garage, and his willing admittance of the officers to
respond to and investigate the assault on Tara. Thus, the
police’s act of entering the garage was not a search in the
constitutional sense.
B. The hammer is admissible under the plain view doctrine
When “a governmental intrusion does not invade an
individual’s legitimate expectation of privacy, [then] there is
no search subject to the Warrant Clause.” State v. Meyer, 78
Hawai‘i 308, 312, 893 P.2d 159, 163 (1995) (emphasis added). In
this case, when the police officers entered the open garage,
(. . .continued)
over six hours after everyone had left was a search in the constitutional
sense.” Id.
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there was no search, and the police officers were authorized to
be where they were. It is important to note, however, that even
in cases where no search in the constitutional sense has
transpired, seizures of property remain under the restraints of
the Fourth Amendment and article I, section 7. Soldal v. Cook
Cty., 506 U.S. 56, 68 (1992) (“[S]eizures of property are
subject to Fourth Amendment scrutiny even though no search
within the meaning of the Amendment has taken place.”). Hence,
the seizure of property inside the garage was valid only if
authorized by a warrant or an exception to the warrant
requirement. One well-settled exception is the “plain view
doctrine,” which allows the police to seize evidence or
contraband sighted in plain view from a lawful vantage point.
State v. Davenport, 55 Haw. 90, 100—01, 516 P.2d 65, 72 (1973)
(“So long as the searching officer is in a position where he is
lawfully entitled to be, the seizure of any evidence of crime is
permissible.”); see also 1 Wayne R. LaFave, Search and Seizure §
2.2 (5th ed. 2013). In cases where the police have not invaded
an individual’s legitimate expectation of privacy and are thus
not conducting a search, they are not required to turn a blind
eye to obvious signs of criminality; rather, they are empowered
to summarily seize such evidence or contraband under the “plain
view doctrine.” 20 “[O]nce the intrusion is justified, there is
20
The plain view doctrine is commonly applied in situations when
(. . .continued)
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no requirement of exigency for the police to seize evidence in
plain view.” Meyer, 78 Hawaiʻi at 316, 893 P.2d at 167 .
Under the plain view doctrine, there has been neither
an “exploration” for a particular item, nor is the particular
item “hidden.” Meyer, 78 Hawaiʻi at 312, 893 P.2d at 163.
What the “plain view” cases have in common is that the
police officer had a prior justification for an intrusion
. . . . 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.
Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (emphases
added). Thus, “‘plain view observations’ do not ‘involve a
search in the constitutional sense.’” 21 State v. Wallace, 80
Hawaiʻi 382, 398, 910 P.2d 695, 711 (1996) (alteration omitted)
(quoting Meyer, 78 Hawaii at 312, 893 P.2d at 163).
The plain view doctrine requires demonstration by the
State of three factors for the warrantless seizure of evidence
or contraband to be legitimate: (1) prior justification for the
intrusion or proof that the government agents were properly in a
position from which they can view the area involved; (2)
(. . .continued)
police are lawfully engaged in a search pursuant to a warrant. See, e.g.,
State v. Wallace, 80 Hawaiʻi 382, 400, 910 P.2d 695, 713 (1996) (applying the
plain view doctrine to justify the seizure of plastic packets observed during
a search pursuant to a warrant).
21
“A search compromises the individual interest in privacy; a
seizure deprives the individual of dominion over his or her person or
property.” Horton v. California, 496 U.S. 128, 133 (1990).
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inadvertent discovery; and (3) probable cause to believe the
item is evidence of a crime or contraband. Meyer, 78 Hawaiʻi at
314, 893 P.2d at 165; Texas v. Brown, 460 U.S. 730, 736—37
(1983).
1. Lawful presence in the area affording plain view
So long as the “police are lawfully in a position from
which they view an object, if its incriminating character is
immediately apparent, and if the officers have a lawful right of
access to the object, they may seize it without a warrant.”
Meyer, 78 Hawaiʻi at 316, 893 P.2d at 167 (quoting Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993)). 22 Thus, because it has
been established that police entry into the open garage did not
violate Phillips’ reasonable expectation of privacy, the police
presence in his garage was lawful.
The prior justification for the police presence in his
garage on the morning of September 3, 2008, was conceded by
Phillips in his opening brief to the ICA: “As to the first
factor, there was prior justification for Officer Tokunaga’s
intrusion as he was allowed to be in [Phillips’] garage.”
22
In cases where there exists an intrusion by law enforcement, that
intrusion may be justified for a variety of reasons. See Davenport, 55 Haw.
at 98, 516 P.2d at 71 (police intrusion justified under search warrant);
Wallace, 80 Hawaiʻi at 398, 910 P.2d at 711 (same); State v. Jenkins, 93
Hawaiʻi 87, 104, 997 P.2d 13, 30 (2000) (search of vehicle trunk based on
probable cause); State v. Ogata, 58 Haw. 514, 572 P.2d 1222 (1977) (open view
seizure of weapon seen in vehicle incident to valid stop); Meyer, 78 Hawaiʻi
308, 893 P.2d 159 (entry into vehicle on request of arrestee).
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Phillips also conceded this point at the hearing on the motion
to suppress: “So in this case we won’t deny that . . . [the
police] were there because, you know, [Phillips] had called 911
and they were -- they had a right to be there at the time.”
(Emphasis added).
2. Inadvertent discovery
Although the United States Supreme Court eliminated
the “inadvertent discovery” element from the plain view
exception, Hawaiʻi retains the requirement as necessary to
“prevent[] pretextual article I, section 7 activity.” Meyer, 78
Hawaiʻi at 314 n.6, 893 P.2d at 165 n.6 (adopting Justice
Brennan’s dissenting opinion in Horton v. California, 496 U.S.
128 (1990)). Justice Brennan explained:
[W]e accept a warrantless seizure when an officer is
lawfully in a location and inadvertently sees evidence of a
crime . . . But ‘where the discovery is anticipated, where
the police know in advance the location of the evidence and
intend to seize it’ . . . there is no reason why the police
officers could not have obtained a warrant to seize this
evidence before entering the premises.
Horton, 496 U.S. at 144 (Brennan, J., dissenting) (emphases
added) (quoting Coolidge, 403 U.S. at 470). Thus, the purpose
of retaining the inadvertent discovery requirement is to ensure
that law enforcement officers are not excused “from the general
requirement of a warrant to seize if the officers know the
location of evidence, have probable cause to seize it, intend to
seize it, and yet do not bother to obtain a warrant particularly
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describing that evidence.” State v. Cuntapay, 104 Hawaiʻi 109,
118, 85 P.3d 634, 643 (2004) (emphases added); see also Meyer,
78 Hawaiʻi at 314 n.6, 893 P.2d at 165 n.6. “So long as the
officer is in a position where the officer is lawfully entitled
to be, the seizure of contraband or evidence of crime is
permissible.” Davenport, 55 Haw. at 101, 516 P.2d at 72.
It is self-evident that if a law enforcement officer
is unaware of the existence of certain evidence or contraband,
then that law enforcement officer cannot know its location.
Neither can the officer have probable cause to seize, or intend
to seize, such unknown evidence or contraband. Thus, the
“inadvertent discovery” element of the plain view exception to
the warrant requirement is satisfied if the law enforcement
officer, justifiably present at a given location, is unaware of
the existence of such evidence at issue until the moment of the
discovery. It is the uncontroverted testimony of Officer
Tokunaga that the hammer was plainly visible in the garage and
entirely exposed. This is confirmed by the photographic
evidence provided by the State at the hearing on the suppression
motion, which shows a metal hammer with a black handle lying
unconcealed on top of a blue cooler along one wall of the
garage.
There has been no suggestion that prior to the
discovery of the hammer, law enforcement officers were aware of
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its existence; that is, the officers did not know the location
of a hammer, did not have probable cause to seize a hammer from
Phillips’ residence, and did not arrive at Phillips’ residence
intending to seize a hammer. In fact, at the moment before the
hammer was discovered, the HPD officers had no reason to suspect
that a hammer was in any way involved in the assault on Tara.
Officer Tokunaga testified that at the time he found the hammer,
he did not know the general facts of the case, nor was any
particular person a suspect. Further, Officer Tokunaga found
the hammer shortly after his arrival. There is also no
suggestion that the seizure of a hammer was made as a pretext in
lieu of properly obtaining a warrant. It follows, therefore,
that Officer Tokunaga’s discovery of the hammer was inadvertent.
Once Officer Tokunaga inadvertently saw the hammer from a
position that he lawfully held, he was not required to ignore
its presence. Davenport, 55 Haw. at 101, 516 P.2d 65, 72.
Indeed, Officer Tokunaga’s inadvertent discovery of
the hammer was conceded by Phillips at the hearing: “So in this
case we won’t deny that . . . they discovered the hammer, . . .
and that was lawful . . . .” Thus, the second requirement of
the plain view doctrine is satisfied.
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3. Probable cause to believe that the hammer was evidence of a
crime
Under the third element of a plain-view seizure, there
must be probable cause to believe that the item is contraband or
evidence of a crime. Meyer, 78 Hawaiʻi at 314, 893 P.2d at 165
In the context of a plain-view seizure, “probable cause” means
such a state of facts as would lead a person of ordinary caution
or prudence to believe and conscientiously entertain a strong
suspicion that the inadvertently observed object was contraband
or evidence of a crime. See State v. Naole, 80 Hawaiʻi 419, 424,
910 P.2d 732, 737 (1996).
Probable cause for a plain-view seizure may be
established when the incriminating character of the evidence or
contraband is “immediately apparent.” Meyer, 78 Hawaiʻi at 316,
893 P.2d at 167. The surrounding circumstances of an
observation of an object by police are part of the probable
cause determination. Based on Officer Tokunaga’s observation of
a “spot of blood” on the hammer, it is clear that a reasonable
person would believe and entertain a strong suspicion that the
hammer was evidence of a crime. The parties do not dispute that
the “spot of blood” on the hammer, observed by Officer Tokunaga
after the hammer’s inadvertent discovery, constituted probable
cause to believe that the hammer was relevant evidence.
Phillips concedes this point: “As to the third factor [of the
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plain view doctrine], there was probable cause to believe [that]
the hammer was evidence of a crime as Officer Tokunaga noticed
what appeared to be blood on the metal portion of the hammer.”
Accordingly, because the facts of this case satisfy all three
prongs of the plain view doctrine, the warrantless seizure of
the hammer was authorized.
4. The ICA erred in suppressing the hammer
The ICA’s conclusion that “the intentional search and
seizure of the hammer under the plain view doctrine was not
valid” is analytically flawed. First, as discussed, there was
no “search” in the constitutional sense. Although Officer
Tokunaga was instructed to “search” for perpetrators or weapons,
a “search” in the constitutional sense occurs only when there is
a governmental intrusion into a reasonable expectation of
privacy, State v. Kender, 60 Haw. 301, 303, 588 P.2d 447, 449
(1978), or a Jones/Jardines trespass or physical intrusion.
Officer Keliinui’s colloquial use of the word “search”
is not determinative: “When a governmental intrusion does not
invade an individual’s legitimate expectation of privacy,” or
when a search under the Jones/Jardines test does not transpire,
“there is no ‘search’ subject to the Warrant Clause.” Meyer, 78
Hawaiʻi at 312, 893 P.2d at 163. Where there is no Fourth
Amendment or article I, section 7 search, then inadvertently
discovered items in plain view may be seized upon probable cause
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to believe that the items are contraband or evidence of a crime.
Id. at 314, 893 P.2d at 165. Here, as has been established,
there was no search under the Katz reasonable-expectation test
or the Jones/Jardines trespass-intrusion test.
Second, the ICA erred in relying on a common
dictionary definition of “inadvertent” when the legal concept of
“inadvertent discovery” was at issue. 23 This court specifically
retained “inadvertent discovery” as a requirement of the plain
view doctrine “in order to foster the objective of preventing
pretextual article I, section 7 activity.” Meyer, 78 Hawaiʻi at
314 n.6, 893 P.2d at 165 n.6. Thus, in the context of the plain
view doctrine, inadvertence does not mean “accidental”; it means
that law enforcement officers did not know the location of
evidence, did not have probable cause to seize it, did not
intend to seize it, and were thus logically unable to “obtain a
warrant particularly describing that evidence.” Cuntapay, 104
Hawaiʻi at 118, 85 P.3d at 643.
As Phillips did not hold a reasonable expectation of
privacy in his garage during the initial police investigation in
the early morning hours of September 3, 2008, and because there
was no search under the Jones/Jardines trespass-intrusion test,
23
Unlike the lay meaning of “inadvertent,” the legal term
“inadvertent discovery” means a “law-enforcement officer’s unexpected finding
of incriminating evidence in plain view.” Black’s Law Dictionary (10th ed.
2014).
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the police entry into his garage was lawful, and no search in
the constitutional sense occurred. Since the discovery of the
hammer was inadvertent and there was probable cause to seize it,
its seizure was lawful. Thus, there was no requirement for the
police to have first obtained a search warrant before seizing
the hammer.
Further, when performing a lawful search, plain-view
seizure of items outside of the scope of the warrant is not
precluded by the intentional looking for or examining of items
within the scope of the search, provided the other elements of
plain view are met. Compare Wallace, 80 Hawaiʻi at 399, 910 P.2d
at 712 (seizure valid under plain view doctrine where officer,
during a valid intentional search of a bag in a car,
inadvertently observed contraband contained in clear plastic
packets), and State v. Jenkins, 93 Hawaiʻi 87, 104, 997 P.2d 13,
30 (2000) (gun protruding from a duffle bag legitimately seized
after being observed in plain view during a legitimate
warrantless search of a car trunk), with Cuntapay, 104 Hawai‘i at
118, 85 P.3d at 643 (purported plain-view seizure not proper
when police had no prior justification for the intrusion into
the washroom, and discovery found not inadvertent because
observation of contraband required officer to move a “‘washing
machine away from the wall in order to closely inspect’ the
‘evidence that otherwise would not have been visible to
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police’”). Indeed, if the inadvertency element of a plain-view
seizure required an “accidental” discovery, then the plain view
doctrine could never apply to a seizure of evidence that is
discovered during execution of a search warrant issued to find
unrelated evidence. Such an interpretation has been rejected by
this court. Davenport, 55 Haw. at 100, 516 P.2d at 72 (holding
that an otherwise permissible search is not rendered unlawful
merely because a different contraband is discovered than what
was listed in the warrant).
Thus, the ICA’s application of the plain view doctrine
was flawed for the following reasons: article 1, section 7 of
the Hawaiʻi Constitution was not offended by the police entry
into Phillips’ garage during the initial investigation into the
assault of Tara on the morning of September 3, 2008; no search
in the constitutional sense occurred as a result of the
observation of the hammer; and the definition of inadvertent
discovery, as an element of a plain-view seizure, is provided by
our case law, and reliance on a dictionary was not necessary.
As a result, the ICA gravely erred in suppressing the hammer.
C. The clothing was inevitably discovered
As already noted, the facts and circumstances of this
case manifest that Phillips did not possess a reasonable
expectation of privacy in the exposed interior of his garage,
nor did the police officers’ entry into the garage constitute a
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search pursuant to the Jones/Jardines trespass-intrusion test.
Hence, the police were authorized to enter the garage; however,
Phillips’ invitation to enter in no way authorized the police to
summarily open closed receptacles inside the garage and seize
evidence hidden from plain view. The instant the police engaged
in such activities, a search and seizure in a constitutional
sense occurred, the validity of which required either a valid
warrant or an exception to the warrant requirement. The circuit
court in this case determined that the police would have
inevitably discovered the clothing found inside the garbage
bin. 24 Under the inevitable discovery rule, evidence obtained in
violation of article I, section 7 of the Hawaii Constitution may
be admitted as evidence at trial if the State presents clear and
convincing proof that the evidence would inevitably have been
discovered by lawful means. State v. Lopez, 78 Hawaiʻi 433, 451,
896 P.2d 889, 907 (1995). Thus, the inevitable discovery
exception hypothesizes that the evidence subject to the
exclusionary rule would have been found through legal means
independent of the unlawful seizure. Id.
24
By applying an exception to the exclusionary rule, the circuit
court implicitly concluded that Officer Frank’s discovery of the clothing in
the garbage bin violated article 1, section 7 of the Hawaiʻi Constitution.
See State v. Tanaka, 67 Haw. 658, 661, 701 P.2d 1274, 1276 (1985) (concluding
that a reasonable expectation of privacy exists in a closed garbage bag).
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The hypothetical situation in this case is the warrant
that was subsequently issued to the police after the clothing
had already been discovered and seized. Two issues are
therefore germane: first, whether there was probable cause for
the issuance of a warrant even without statements unlawfully
obtained from Phillips and any information derived from the
clothing found inside Phillips’ garbage bin, and second, whether
the clothing would have been found pursuant to that warrant.
See State v. Sepa, 72 Haw. 141, 144, 808 P.2d 848, 850 (1991)
(holding that a warrant based on an affidavit containing
material misstatements could nonetheless establish probable
cause if “the affidavit’s content, with the false material
omitted, is sufficient to establish probable cause”); Lopez, 78
Hawaii at 447—48, 896 P.2d at 903—04 (stating that “a search
warrant is not constitutionally defective because it is based,
in part, on illegally seized evidence where sufficient probable
cause exists to issue the warrant without relying on the
suppressed evidence”).
Turning to the first issue, a search warrant must
always be predicated “upon a finding of probable cause supported
by oath or affirmation.” State v. Navas, 81 Hawaiʻi 113, 116,
913 P.2d 39, 42 (1996). “Probable cause exists when the facts
and circumstances within one’s knowledge and of which one has
reasonably trustworthy information are sufficient in themselves
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to warrant a person of reasonable caution to believe that an
offense has been committed.” Id.
An affidavit in support of a finding of probable cause
should “set forth ‘some of the underlying circumstances’ from
which the police concluded that the objects sought to be
recovered were where they claimed they were, and disclose some
of the underlying reasons from which the affiant concluded that
the information was ‘reliable.’” Sepa, 72 Haw. at 143—44, 808
P.2d at 850 (quoting State v. Kanda, 63 Haw. 36, 620 P.2d 1072
(1980)). The determination of whether probable cause supported
the issuance of a search warrant is reviewed de novo under the
right/wrong standard of review. Navas, 81 Hawaiʻi at 123, 913
P.2d at 49.
The Affidavit that Detective Sunia submitted in
support of her application for a search warrant stated that
Phillips told responding officers that he left his residence and
went for a ride in his car because he could not sleep. Phillips
told Officer Collins that before leaving his residence, he
closed the garage door but left the door leading into the
kitchen from the garage unlocked. Detective Sunia emphasized in
her Affidavit that this was inconsistent with Phillips’ account
of the events to Officer Ahn. Phillips told Officer Ahn that he
left the garage door open when he left. There was no indication
of forced entry.
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Tara sustained a massive blunt force trauma to her
head, was in critical condition, had a broken wrist, and had
some of her fingernails ripped off. A bloody footprint was
present on the sheet covering the bed in which Tara was found.
There was blood splatter on the walls of the bedroom in which
Tara was found, but there was no indication of any transfer of
large amounts of blood on the stairs or other rooms in the
residence.
Police officers found a hammer lying by the garage
door, and Phillips admitted that he owned that hammer. The
hammer found in the garage had traces of what appeared to be
dried blood.
Phillips informed one HFD firefighter that he had been
arguing with Tara earlier, before he left for a drive. One of
the children informed Officer Rivera that, on September 3, 2008,
Tara and Phillips had been arguing “because [Phillips was]
texting other women and cheating on [Tara].” A neighbor stated
that, on September 1, 2008, at around 10:00 a.m., “he heard
people arguing inside” the residence and that, on September 3,
2008, at around 3:30 a.m., “he heard a loud thumping sound
coming from the residence . . . , as if someone had fallen down
the stairs.” The search warrant application was further
supported by Detective Sunia’s statement in her affidavit that
based on her experience, training, and qualifications, homicide
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suspects use their vehicles and personal property, including
bags, pouches, and closed containers, to conceal
instrumentalities utilized in the commission of the crime. See
State v. Groves, 65 Haw. 104, 114, 649 P.2d 366, 373 (1982)
(relying on a police officer’s experience and expertise to
establish probable cause); accord State v. Chong, 52 Haw. 226,
231—32, 473 P.2d 567, 571 (1970).
The circuit court found that the foregoing facts
constituted clear and convincing evidence that, even if
illegally obtained statements and information relating to the
discovery and seizure of the clothing were redacted from the
affidavit, probable cause existed to justify the issuance of a
warrant. We conclude that the circuit court did not err in
determining that these facts would have produced in the mind of
a reasonable person a firm belief that a criminal offense was
committed in Phillips’ house and against Tara. See Lopez, 78
Hawaiʻi at 454 n.30, 896 P.2d at 910 n.30.
The second issue--whether the clothing would have been
found pursuant to the warrant--in turn has two components:
whether the scope of the warrant would have allowed the police
to discover and thereafter seize the clothing, and whether the
circumstances are such that the clothing would still have been
in the garbage bin after the police secured and thereafter
executed a search warrant.
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As to scope, the search warrant authorized the police
to search “the . . . residence as well as any and all closed
containers contained within, which are currently secured and
being watched by an officer with the Honolulu Police
Department.” (Emphasis added). Further, the warrant permitted
the police to search and seize “all items of evidence,
including, but not limited to physical, transfer, and trace
evidence (personal property and/or biological evidence), which
would tend to establish the identi[t]y of the person(s)
occupying the vehicle and/or residence, and which may include .
. . articles of clothing.” The scope of the warrant thus
provided clear and convincing evidence that the police would
have discovered the clothing in the garbage bin once the warrant
was executed.
As to whether the clothing would still have been in
the searched premises when the warrant was executed, the
affidavit expressed that the residence was “being secured . . .
by the presence of police units on scene” and was “unoccupied
and within an enclosed area, inaccessible to members of the
public.” The affidavit also stated that closed containers
within the residence were “currently secured and being watched
by an officer with the Honolulu Police Department.” These facts
indicate that nobody, not even Phillips, was allowed to access
or occupy any part of Phillips’ residence, and a police officer
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was standing guard while a warrant application was being
prepared for the examination and approval of a judge. Hence,
there is no merit in Phillips’ argument that he could have
returned to his residence and tampered with the clothing between
the time when he left the police station and the execution of
the warrant, thereby precluding the inevitable discovery of the
clothing.
The circuit court thus concluded, and we agree, that
the government satisfied its “burden to show by clear and
convincing evidence that the clothing found within a covered
trash container in the garage would inevitably have been
discovered . . . under the authority of the September 3, 2008,
search warrant covering the residence and its garage and any
containers located therein.”
D. The dissent misapprehends and misapplies the Katz
reasonable expectation of privacy paradigm
For the dissent, any entry by the police into a home
or its curtilage is a search under the Katz reasonable
expectation of privacy test, requiring consent (an exception to
the warrant requirement) in order to pass constitutional muster.
Dissent at 18—24. This is true even in cases where the interior
of that area has been knowingly exposed for anyone to view, the
police were invited there by the resident, and the police
purpose upon entry is not to gather evidence. The dissent
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effectively creates a per se rule that would find any entry,
including those elicited by an invitation, into a home or its
curtilage as a search.
Further, the dissent reasons that the invitation by
the resident to the police to respond to an emergency or a
report of suspected criminal activity constitutes an implied
consent for the police not only to enter the home but also “to a
brief initial search of the premises to determine whether there
were other victims or perpetrators present at the scene.”
Dissent at 2.
According to the dissent’s summary of its recommended
test,
when a defendant calls the police to a place in which
he/she has a reasonable expectation of privacy, and the
defendant reports that a crime has been committed there,
he/she consent to a brief search of the premises by the
police so that the police can secure the location and
determine whether there are other possible victims or
perpetrator(s) present at the scene. The defendant’s
consent, however, does not extend to a wholesale search of
the premises such that the police are then free to go
through bathroom and kitchen cabinets, personal effects, or
closed containers.
Dissent at 29—30. Thus, this “consent” to search applies
automatically to a place where the caller has a reasonable
expectation of privacy.
The dissent’s approach is fundamentally flawed for
four reasons: (1) it is inconsistent with the precept that a
search in the constitutional sense does not arise solely based
on the nature and character of the area upon which the police
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intrusion is directed; (2) it is not supported by precedent; (3)
it flows from the emergency exception to the warrant requirement
that Hawaii has never adopted; and (4) it is contrary to the
fundamental tenets of the consent doctrine.
1. Protections Afforded by the Fourth Amendment and Article
I, Section 7 Do Not Automatically Attach Based on the Place
Involved
The Supreme Court, and later this court, “rejected the
idea that some areas are automatically accorded constitutional
protection while others are not.” State v. Stachler, 58 Haw.
412, 416, 570 P.2d 1323, 1326 (1977); State v. Kaaheena, 59 Haw.
23, 26 & n.4, 575 P.2d 462, 465 & n.4 (1978) (recognizing that
pursuant to Katz, traditional constitutionally protected areas,
such as homes, are “no longer afforded automatic constitutional
protection”); Katz v. United States, 389 U.S. 347, 351 (1967).
This rejected idea, however, forms the very basis for the
dissent’s creation of a per se rule that a person always has a
reasonable expectation of privacy in his or her home and its
curtilage.
The dissent thus rejects the long-established
principle that “[w]hat a person knowingly exposes to the public,
even in his own home or office, is not a subject of Fourth
Amendment protection.” Stachler, 58 Haw. at 416, 570 P.2d at
1326 (quoting Katz, 389 U.S. at 351). By adhering to the view
that any entry into a home or its curtilage--even those whose
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interior has been knowingly exposed to the public--is a search,
the dissent also discredits the practice in this jurisdiction to
engage in a case-by-case consideration of different factors in
the course of determining whether a search has occurred within
the meaning of the Fourth Amendment and article I, section 7.
State v. Ward, 62 Haw. 509, 515, 617 P.2d 568, 572 (1980). 25 The
determination of whether a search in a constitutional sense has
transpired does not depend solely on the nature and character of
the area upon which the police intrusion is directed, but it is
informed by the confluence of relevant circumstances bearing
upon the determination of whether a person has a reasonable
expectation of privacy in an area or whether a Jones/Jardines
type of prohibited conduct has occurred. Id. The manifest
flaws in the dissent’s search doctrine are underscored by its
determination that despite Phillips having called the police to
his home because of an assault on Tara that resulted in serious
injuries, despite the garage door being open and its interior
exposed to the public, despite Phillips having invited the
police to enter his garage, and despite the record not
containing any actions or statements by Phillips indicating that
25
The dissent claims that its proposed analytical framework is the
“unanimous approach” followed by other jurisdictions. Dissent at 2. But see
supra note 12. In any event, the holdings of the cases that the dissent
cites do not stand for the proposition that any police entry into a home or
its curtilage is per se a search in the constitutional sense. See infra Part
D.2.
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the garage area was private, the dissent concludes that Phillips
had a reasonable expectation of privacy in his garage. Such an
approach would leave very little, if anything, remaining of a
meaningful Katz analysis. 26
2. Supreme Court precedents do not support the dissent’s
analysis
The dissent asserts that its approach flows directly
from Mincey v. Arizona, 437 U.S. 385 (1978); Flippo v. W.
Virginia, 528 U.S. 11 (1999) (per curiam); and Thompson v.
Louisiana, 469 U.S. 17 (1984) (per curiam). Dissent at 25—26.
The fundamental issue in these cases was the validity of the
police’s reentry into homes after the exception that legitimized
their initial entry had expired. See Mincey, 437 U.S. at 391—
92; Flippo, 528 U.S. at 11, 13—14; Thompson, 469 U.S. 17, 18-19,
21—22. None of these cases involved a home or its curtilage
that its owner or resident knowingly exposed to public view to
such an extent that a reasonable expectation of privacy in the
area would be found lacking. 27 Additionally, none of these cases
26
The dissent makes the assertion that our application of the Katz
and Jones/Jardines tests results in the evisceration of privacy rights.
However, we simply apply Katz, as that case has been understood since its
inception, and Jones/Jardines to the facts of this case. Our continued
application of the Katz and the Jones/Jardines tests yields only the
conclusion that the entry of the police, pursuant to a resident’s invitation,
to knowingly exposed premises is not a search. However, a subsequent seizure
or search, including the exploration of concealed areas and closed
containers, must be authorized by a warrant or an exception to the warrant
requirement.
27
The same is true for the state appellate cases from which the
dissent extracts its proposed analytical framework.
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held that mere physical entry, upon a resident’s invitation,
into knowingly exposed premises automatically constitutes a
search for which a warrant or an exception to the warrant
requirement is mandatory. 28 Hence, these cases do not support
the dissent’s position.
Further, in each of these cases, the Supreme Court
found that the limits of the States’ “emergency” exception had
been exceeded, impelling the need for a warrant (or a recognized
exception to the warrant requirement) to legitimize the ensuing
general exploratory search by the police. Mincey, 437 U.S. at
392; Flippo, 528 U.S. at 14; Thompson, 469 U.S. at 22. Hawaiʻi
28
In Mincey, the officers gathered evidence for four days,
during which period the entire apartment was searched,
photographed, and diagrammed. The officers opened drawers,
closets, and cupboards, and inspected their contents; they
emptied clothing pockets; they dug bullet fragments out of
the walls and floors; they pulled up sections of the carpet
and removed them for examination. Every item in the
apartment was closely examined and inventoried, and 200 to
300 objects were seized.
Mincey, 437 U.S. at 389. In Flippo, the police reentered a cabin where a
crime was apparently committed and, in the course of approximately sixteen
hours, “took photographs, collected evidence, and searched through the
contents of the cabin.” Flippo, 528 U.S. at 12. In Thompson, the
investigators conducted a general exploratory search for evidence of a crime
and examined each room of the residence involved. Thompson, 469 U.S. at 18-
19.
State v. Patterson, 58 Haw. 462, 468, 571 P.2d 745, 749 (1977),
the sole Hawaii case that the dissent relies upon, also does not support the
dissent’s approach. In that case, this court did not hold that mere entry
into the defendant’s home was a search in the constitutional sense. Id. at
467, 571 P.2d at 748. Further, the fact that no search was found to have
been conducted when the police entered the defendant’s home upon the
defendant’s invitation is consistent with our conclusion in this case that
the police did not engage in a search when they entered the exposed interior
of Phillips’ garage on Phillips’ invitation.
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has not considered whether article I, section 7 encompasses an
emergency exception to the warrant requirement. Consequently,
there has been no occasion for this court to determine the
limitations of such an exception as set forth in Mincey,
Thompson, and Flippo.
While consent is a recognized exception to the search
warrant requirement, an exception is relevant only if there was
a Fourth Amendment search. 29 In this case, because Phillips did
not have a reasonable expectation of privacy in the exposed
interior of his garage, the police officers’ entry into the
garage did not constitute a Fourth Amendment search. Thus, as
to the police officers’ entry, it is not appropriate to evaluate
the applicability of a warrant exception.
3. The dissent’s approach is a relabeling of the emergency
exception to the warrant requirement
The “consent” search that the dissent proffers,
allowing police called to a place to search for victims or
29
Other jurisdictions, based on an emergency response at a home,
have employed an implied consent analysis. See McNair v. Virginia, 521
S.E.2d 303 (Va. Ct. App. 1999) (defendant impliedly consented to a police
search of his home after having called for an emergency response to his home
due to a robbery); State v. Dowling, 387 So. 2d 1165 (La. 1980) (defendants
impliedly consented to police search of home after having called an emergency
response to their home to investigate a shooting). However, as noted, Hawaiʻi
has not addressed whether article I, section 7 encompasses an emergency
exception; thus, we have had no reason to apply an implied consent doctrine
to justify police entry into a home. Instead, Roy, Lopez, and Davidsen have
found police entry into a home lawful when the particular circumstances of
the case demonstrate that the resident lacked a reasonable expectation of
privacy.
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perpetrators, originates from Mincey, which held that in
instances where someone is in need of immediate aid or in
homicide crime scenes, “the Fourth Amendment does not bar police
officers from making warrantless entries and searches” and
allows the police to “make a prompt warrantless search of the
area to see if there are other victims or if a killer is still
on the premises.” Mincey v. Arizona, 437 U.S. 385, 392 (1978);
see also Thompson v. Louisiana, 469 U.S. 17, 21 (1984); Flippo
v. W. Virginia, 528 U.S. 11, 14 (1999) (per curiam). The
dissent appropriates the Mincey victim-or-perpetrator search,
which is predicated on an emergency exception to the warrant
requirement, as the allowable scope of the “consent” search that
may be conducted at a home or its curtilage by virtue of a
person’s call for the police to respond to an apparent crime
scene. Thus, the dissent advocates adoption of an emergency
exception to the warrant requirement, which this court has never
accepted and which neither party raised, under the guise of the
consent exception.
This observation is further supported after examining
the state appellate cases that the dissent relies upon. Those
cases allow police officers called to respond to an apparent
crime scene to search the premises to the extent reasonably
related to the routine investigation of the offense and the
identification of the perpetrator. See State v. Fleischman, 157
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Ariz. 11, 15, 754 P.2d 340, 344 (Ct. App. 1988); State v. Brady,
585 So. 2d 524, 529 (La. 1991); State v. Dowling, 387 So. 2d
1165, 1169 (La. 1980); State v. Fredette, 411 A.2d 65, 69 (Me.
1979). The dissent, however, abandons the holdings of these
cases as to the allowable scope of a consent search and instead
suggests that the search should be limited to a Mincey victim-
or-perpetrator search. Consequently, the dissent conflates the
consent and emergency exceptions, each of which is distinct from
the other, in order to create a framework that has never been
adopted or utilized in this jurisdiction.
4. The dissent’s approach disregards the fact-intensive nature
of consent
Even if one were to accept the dissent’s consent-
based approach, it is beyond question that the validity of
consent is “determined from the totality of circumstances
surrounding the defendant’s purported relinquishment of a right
to be free of unreasonable searches and seizures.” State v.
Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984). The
dissent’s approach, on the other hand, does away with the case-
by-case, fact-specific determination that always accompanies the
analysis of both the validity and scope of consent searches.
According to the dissent, in every case in which a person calls
the police to respond to a home or its curtilage because of an
apparent crime, the person has effectively consented for the
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police to search the premises for the purpose of identifying
other victims or finding whether the perpetrator is still
present. Dissent at 20—24, 29—30. Thus, the dissent crafts an
approach that preordains both the validity and scope of one’s
consent based singularly on the fact that the occupant of a home
or its curtilage has called the police to respond to an apparent
crime, to the exclusion of all other facts and circumstances.
This approach is in contravention of well-settled canons that
have guided courts for decades whenever consent searches are at
issue. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)
(explaining that the validity of consent is assessed by “the
totality of all the surrounding circumstances” and enumerating
several factors that may be taken into account in the analysis);
State v. Won, 137 Hawaii 330, 340, 372 P.3d 1065, 1075 (2015)
(“In Hawaii, consent is measured under an analysis examining the
totality of the circumstances.”); State v. Russo, 67 Haw. 126,
137, 681 P.2d 553, 562 (1984) (accord); State v. Merjil, 65 Haw.
601, 605, 655 P.2d 864, 868 (1982) (accord).
Additionally, this court is not in a position to
determine as a matter of law the presence and scope of consent
when it was not litigated in the trial court. 30 Whether consent
30
Also notable is that neither party raised the applicability of
the doctrine of consent to the facts of this case, and hence, this issue is
not properly before this court. State v. Moses, 102 Hawaii 449, 456, 77 P.3d
(. . .continued)
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to search has been given voluntarily under the totality of all
the circumstances is a question of fact to be determined by the
trial court. State v. Patterson, 58 Haw. 462, 468, 571 P.2d
745, 749 (1977). Consent means that acquiescence to the
government’s search must be “in fact, free[] and voluntar[y].”
Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951 (1981).
On appellate review, the findings of a trier of fact
regarding the validity of a consent to search must be upheld
unless clearly erroneous. State v. Ganal, 81 Hawaiʻi 358, 368,
917 P.2d 370, 380 (1996). Here, however, the trier of fact made
no determination regarding the existence or validity of consent
to a search because consent was never argued at the motion
(. . .continued)
940, 947 (2003) (“As a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on appeal; this rule
applies in both criminal and civil cases.” (citing State v. Ildefonso, 72
Haw. 573, 584, 827 P.2d 648, 655 (1992))). Thus, in order for this court to
reach this issue, it would have to be noticed as plain error. While it is
accepted that an appellate court may affirm a lower court’s judgment on any
ground in the record supportive of affirmance, see State v. Dow, 96 Hawaii
320, 326, 30 P.3d 926, 932 (2001), to uphold the circuit court’s ruling as to
Phillips’ motion to suppress unlawful seizure of evidence upon a theory never
presented “would raise serious questions of due process.” United States v.
Parrilla Bonilla, 648 F.2d 1373, 1385-86 (1st Cir. 1981); see Cole v.
Arkansas, 333 U.S. 196, 202 (1948) (“To conform to due process of law,
petitioners were entitled to have the validity of their convictions appraised
on consideration of the case as it was tried and as the issues were
determined in the trial court.”). Notably, Phillips did not testify at the
motion hearing and at the trial. Arguably, however, if the issue of implied
consent were raised as a legal theory that justified the police conduct in
this case, Phillips would have been called to testify as to his actions and
the voluntariness of his purported consent in order to refute its existence,
validity, or scope. Accordingly, as Phillips aptly contends, by affirming
the circuit court’s motion to suppress ruling based upon a fact-driven theory
that was neither raised in nor considered by the circuit court, the dissent
effectively deprives Phillips of the right to meet and defend against
allegations of implied consent, raising “serious questions of due process.”
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hearing or in the trial court. Thus, in the absence of any
consideration or a finding by the trial court regarding consent,
the dissent’s determination that the consent exception to the
warrant requirement applies to the factual circumstances of this
case is contrary to the approach of our prior holdings.
If the dissent were to duly apply the doctrine of
consent as an exception to the warrant requirement, its
determination would require vacating that portion of the order
denying Phillips’ suppression motion and remanding the case to
the circuit court for a determination of whether consent had,
“in fact, [been] freely and voluntarily given.” Patterson, 58
Haw. at 468, 571 P.2d at 749 (1977); see, e.g., State v.
Kaleohano, 99 Hawaiʻi 370, 56 P.3d 138 (2002) (holding that
remand was necessary to give the trial court the opportunity to
make specific findings on voluntariness because deciding the
issue on appeal without such findings amounts to the usurpation
of the factfinder’s role). 31 Thus, this court can affirm or
vacate a finding of free and voluntary consent to a search, but
it should not make a determination of consent without providing
an opportunity to the parties to provide testimony upon the
31
See also Thompson, 469 U.S. at 23 (in response to arguments that
the search should be upheld as consensual, stating, “Because the issue of
consent is ordinarily a factual issue unsuitable for our consideration in the
first instance, we express no opinion as to whether the search at issue here
might be justified as consensual.”); Flippo, 528 U.S. at 15 (making the same
response to arguments that the search could be upheld under an implied
consent theory).
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issue of consent and without allowing the trial court to make
relevant factual findings.
In Russo and Nakamoto, consent was argued at the trial
court, and the appellate courts’ review considered the factual
determinations. By contrast, the analysis of the dissent would
provide as a matter of law that the facts of this case implies
the consent of a resident to a search of his or her garage for
the purpose of searching other victims or the perpetrator; this
approach is inconsistent with our prior decisions holding that
consent is a question of fact.
E. Restitution
As a result of the injuries sustained in the attack,
Tara was in a coma when she was admitted to the hospital on the
morning of September 3, 2008. Although she regained
consciousness, she was never able to live on her own after the
attack. No evidence at trial or sentencing was presented
regarding any preexisting conditions or subsequent injuries or
illnesses that may have caused her death.
The State requested that Tara’s mother be reimbursed
for funeral and related expenses. Phillips argued that he
should not be liable for any additional payment because he had
made “very large payments for a couple years to” Tara’s mother,
Tara died well over a year after the attack, and there was “no
evidence presented . . . no doctor’s testimony” regarding the
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cause of death; consequently, he also requested a reduced amount
of restitution. 32
The circuit court found that Tara “was in a coma,”
suffered from “head injuries,” “had to be taken to a Florida
nursing home, and there died. . . . She would not have died but
for his conduct.” Based on its finding of a nexus between
Phillips’ actions and Tara’s death, the circuit court awarded
restitution for funeral expenses under HRS § 706-646. 33 The ICA
did not reach this issue, having ordered suppression of the
hammer, remanding the case for retrial, and declaring all other
points on appeal moot.
HRS § 706-646 requires a court to order restitution
for “losses suffered by the victim or victims as a result of the
defendant’s offense.” A party’s conduct “is a legal cause of
32
Phillips also argues that the parties’ stipulation that Tara’s
death was unrelated to the attack prevents an award to Tara’s mother to
recover funeral related expenses. However, the parties’ stipulation to a
fact for purposes of trial does not supersede the court’s responsibility to
independently determine a relevant factual issue in assessing the
applicability of restitution as part of sentencing. A court’s determination
of a fact at sentencing, for example, may be premised upon evidence adduced
at sentencing that was not introduced at trial. Consequently, the sentencing
court was not bound by the trial stipulation.
33
HRS § 706-646 (2013) provides, in relevant part:
(2) The court shall order the defendant to make restitution for
reasonable and verified losses suffered by the victim or victims as a result
of the defendant’s offense when requested by the victim. . . .
(3) . . . Restitution shall be a dollar amount that is sufficient to
reimburse any victim fully for losses, including but not limited to . . .
[m]edical expenses [and] [f]uneral and burial expenses incurred as a result
of the crime.”
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harm to another if . . . his conduct is a substantial factor in
bringing about the harm.” Knodle v. Waikiki Gateway Hotel,
Inc., 69 Haw. 376, 390, 742 P.2d 377, 386 (1987) (quoting
Restatement (Second) of Torts § 431 (Am. Law. Inst. 1965)). The
conduct “need not have been the whole cause or the only factor .
. . bringing about the . . . plaintiff’s injuries,” id. (quoting
Mitchell v. Branch, 45 Haw. 128, 132, 363 P.2d 969, 973 (1961)),
but some “nexus” is required in order to award restitution under
HRS § 706-646. State v. Domingo, 121 Hawaiʻi 191, 195, 216 P.3d
117, 121 (App. 2009) (holding that where nexus was lacking,
restitution could not be imposed).
To determine whether a sufficient nexus exists for the
application of HRS § 706-646, a court must determine whether the
evidence supports a finding that the defendant’s conduct was the
cause of or aggravated the victim’s loss. Id. at 195, 216 P.3d
at 121 (“Absent evidence that [defendant’s] conduct caused or
aggravated [victim’s] injuries or caused [victim’s] death, no
causal relationship between [defendant’s] criminal act and a
victim’s losses is shown and restitution may not be imposed
pursuant to HRS § 706–646.”).
A constitutionally valid sentence is reviewed for a
plain and manifest abuse of discretion. State v. Kumukau, 71
Haw. 218, 227, 787 P.2d 682, 686 (1990). In this case, the
evidence at trial and at sentencing plainly demonstrated a
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sufficient nexus between Phillips’ attack on Tara and her
subsequent death, providing the requisite basis for the circuit
court to order restitution for Tara’s funeral-related expenses.
Thus, the circuit court’s award of restitution was not an abuse
of discretion.
IV. CONCLUSION
Analysis under our search and seizure jurisprudence
proceeds in a logical manner, and the proper starting point for
a search and seizure analysis is whether a constitutionally
proscribed search occurred. A search in the constitutional
sense occurs when, under Katz, the government invades a person’s
reasonable expectation of privacy or when, under Jones and
Jardines, the government physically intrudes--that is, enters
without permission--a constitutionally protected area for the
purpose of collecting evidence. Here, the police officers that
Phillips summoned into his garage did not invade any reasonable
expectation of privacy. Further, police did not physically
intrude into Phillips’ garage with the intent to gather
evidence. Because there was no search related to the entry of
the garage, exceptions to the search warrant requirement, such
as consent, are not pertinent to the analysis.
While the police were lawfully in the garage
conducting their initial check of the residence following a
reported home invasion and a brutal assault, the hammer was
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observed by HPD officers in plain view, and there was probable
cause to seize it. Thus, the hammer was recovered as a valid
plain-view seizure. With respect to the clothing, there was
clear and convincing evidence that it would have been inevitably
discovered under the authority and scope of the search warrant
that the police later obtained that day; thus, the warrantless
seizure of the clothing from the inside of the closed garbage
bin within Phillips’ garage was lawful.
Lastly, because there was a sufficient nexus between
Phillips’ actions and the expenses incurred by Tara’s family,
the circuit court did not err in its restitution order.
Consequently, the ICA Judgment on Appeal is reversed,
and the circuit court’s amended judgment of conviction is
affirmed.
Stephen K. Tsushima /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Randall K. Hironaka
for respondent /s/ Rhonda A. Nishimura
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State v. Phillips.
Court: Hawaii Supreme Court
Date filed: 2016-09-30
Citations: 138 Haw. 321, 382 P.3d 133
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