State v. Curtis.

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Electronically Filed
Supreme Court
SCWC-12-0000133
15-MAY-2017
08:21 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

JASON CURTIS and MELISSA HALL,
Petitioners/Defendants-Appellants,
and
GENEVIEVE WALKER, Respondent/Defendant-Appellee.

SCWC-12-0000133

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000133 and CAAP-12-0000134; CR. NO. 11-1-0016)

MAY 15, 2017

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

This case requires us to determine what information

must appear on the face of an “anticipatory” search warrant,

i.e., a warrant that cannot be executed until some expected
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future event occurs. This case arose when a FedEx employee

discovered marijuana in a package addressed to a residence on

Kaua#i. The Kaua#i Police Department (KPD) was contacted and

decided to conduct a controlled delivery of the package to the

address listed. They applied for a warrant to allow them to

search the premises upon completion of the delivery. However,

rather than listing this triggering condition, the warrant issued

by the district court instead authorized the KPD to conduct the

search “forthwith.”

The KPD completed the controlled delivery, and

Petitioners Jason Curtis and Melissa Hall were charged with drug

offenses based on evidence seized in the subsequent search.

Petitioners moved to suppress that evidence, arguing that the

anticipatory search warrant was invalid because it failed to list

the triggering condition. The circuit court denied Petitioners’

motion, and the Intermediate Court of Appeal (ICA) affirmed.

We are faced with a question of first impression for

this court: Does the Hawai#i Constitution require that an

anticipatory search warrant identify the triggering condition on

the face of the warrant? In light of the privacy protections

contained in article I, section 7 of the Hawai#i Constitution, we

hold that an anticipatory search warrant must, on its face,

identify the triggering condition to be valid. We therefore

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vacate the ICA’s February 23, 2016 Judgment on Appeal and the

circuit court’s denial of Petitioners’ motion to suppress

evidence seized pursuant to the unlawful search warrant, and

remand the case to the circuit court for proceedings consistent

with this Opinion.

I. Background

A. Anticipatory Search Warrant

On December 1, 2010, a FedEx employee at the Honolulu

FedEx sorting facility opened a parcel that he suspected

contained illegal narcotics. The parcel was addressed to

“Jennifer ROBERTSON” at a Kaua#i residential address (Subject

Premises). After discovering plastic bags in the parcel that

appeared to contain marijuana, the FedEx employee notified a Drug

Enforcement Administration (DEA) officer. The parcel and its

contents were subsequently turned over to the KPD. After testing

and weighing the suspected marijuana, the KPD determined that the

parcel contained approximately eight pounds of marijuana.

KPD Officer Paris Resinto applied for and obtained a

court order authorizing KPD officers to install in the parcel a

tracking device that would permit the KPD to track the location

of the parcel and determine when the parcel was opened. In

conjunction with obtaining the order for the tracking device,

Officer Resinto applied for an anticipatory search warrant to

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search the Subject Premises for the parcel and its contents,

including the tracking device.

Officer Resinto’s affidavit in support of the

anticipatory search warrant explained that (1) the KPD planned to

effect a controlled delivery of the parcel under police

surveillance to the Subject Premises to “identify the person(s)

involved in this illegal drug shipment”; (2) the KPD would

install the tracking device in the parcel; and (3) after the

tracking device was installed, Officer Resinto and KPD Sergeant

Darren Rose would maintain custody of the parcel until it was

delivered to the Subject Premises. The affidavit also

incorporated three documents by reference: a description of

Officer Resinto’s training and experience, the affidavit

supporting the application for the tracking device, and the order

granting the application.

The affidavit stated that Officer Resinto “has

reasonable grounds to believe that the property described herein

will be located in the [Subject Premises] after the time of

delivery of the suspect parcel and request that a search warrant

issue commanding that a search be made of said residence for said

property[.]” The affidavit also requested the issuance of a

search warrant to search the Subject Premises “within forty-eight

(48) hours after the time of delivery of the subject parcel[.]”

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On December 2, 2010, the district court1 issued an

“Anticipatory Search Warrant” based on Officer Resinto’s

affidavit, authorizing KPD officers to search the Subject

Premises for the parcel and its contents. The search warrant did

not set forth the triggering condition for the execution of

warrant, and it did not mention the controlled delivery of the

parcel described in Officer Resinto’s affidavit. Rather, the

search warrant stated:
Affidavit(s) having been made before me that the
property described herein may be found at the location
set forth herein and that it falls within the grounds
specified by said affidavit(s). And I am satisfied
that there is probable cause to believe that the
property described herein is located within the
property to be searched and that the foregoing grounds
for application for issuance of a search warrant
exist:

YOU ARE HEREBY COMMANDED forthwith to search:

[The Subject Premises]

(Emphases added.)

It also described the property to be searched and

stated that “[t]he search shall take place within 10 days of this

date.”

That same day, the KPD conducted a controlled delivery

of the parcel to the Subject Premises. Sergeant Rose approached

the Subject Premises and handed the parcel to Curtis, who carried

it inside the Subject Premises. Sergeant Rose also saw Hall and

1
The Honorable Trudy K. Senda presided.

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co-defendant Genevieve Walker. Officer Rose asked Walker if she

was “Jennifer Robertson,” the named addressee of the parcel.

Walker said yes and signed the FedEx delivery form. Sergeant

Rose left the Subject Premises and notified other KPD officers

participating in the investigation that the parcel had been

delivered.

About five minutes after the parcel had been delivered,

the tracking device alerted the KPD officers that the parcel had

been opened. In response, the KPD officers went to the Subject

Premises and executed the search warrant.

In executing the warrant, the officers observed Curtis,

Hall, and Walker and found the contents of the opened parcel,

including the marijuana, in various parts of the Subject

Premises. The officers recovered one of the bags of marijuana

from the parcel. The officers also recovered drug paraphernalia

and over $1,000 in cash.

B. Circuit Court Proceedings

On January 19, 2011, Curtis, Hall, and Walker were

charged with: (1) second-degree commercial promotion of

marijuana in violation of Hawai#i Revised Statutes (HRS) § 712-

1249.5(1)(a) and/or (b),2 (2) unlawful use of drug paraphernalia

2
HRS § 712-1249.5(1) (1989) provides in relevant part:

(continued...)

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in violation of HRS § 329-43.5(a),3 and (3) second-degree

promotion of a detrimental drug in violation of HRS § 712-

1248(1)(c).4

On February 17, 2011, Walker filed a “Motion to Quash

Search Warrant and Suppress Illegally Obtained Evidence and

Statements” (Suppression Motion), challenging the validity of the

warrant. Walker argued that the search warrant was invalid under

2
(...continued)
(1) A person commits the offense of commercial
promotion of marijuana in the second degree if the
person knowingly:
(a) Possesses marijuana having an aggregate
weight of two pounds or more;
(b) Distributes marijuana having an aggregate
weight of one pound or more[.]
3
HRS § 329-43.5(a) (1988) provides:

(a) It is unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to
plant, propagate, cultivate, grow, harvest,
manufacture, compound, convert, produce, process,
prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance
in violation of this chapter. Any person who violates
this section is guilty of a class C felony and upon
conviction may be imprisoned pursuant to section
706-660 and, if appropriate as provided in section
706-641, fined pursuant to section 706-640.
4
HRS § 712-1248(1) (1989) provides in relevant part:

(1) A person commits the offense of promoting a
detrimental drug in the second degree if the person
knowingly:
. . . .
(c) Possesses one or more preparations, compounds,
mixtures, or substances, of an aggregate weight of one
ounce or more, containing any marijuana[.]

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article I, section 7 of the Hawai#i Constitution5 and under HRS §

803-316 because it did not contain a description of the

triggering condition on its face.

In support of her argument, Walker cited a depublished

ICA case, State v. Scott (Scott I), that set forth six

requirements for an anticipatory search warrant, including that

the warrant “authorizes a search only upon the occurrence of the

event generating the probable cause”; “authorizes a search only

within the probable life of the probable cause”; and is “executed

before the probable cause in fact expires.” 87 Hawai#i 80, 80-

81, 951 P.2d 1243, 1243-44 (1998).7 Walker argued that the

5
Article I, section 7 of the Hawai#i Constitution provides:

Searches, Seizures, and Invasion of Privacy.
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; and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized or the
communications sought to be intercepted.
6
HRS § 803-31 (1998) provides:

A search warrant is an order in writing made by a
judge or other magistrate, directed to an officer of
justice, commanding the officer to search for certain
articles supposed to be in the possession of or which
are anticipated to be in the possession of one who is
charged with having obtained them illegally, or who
keeps them illegally, or with the intent of using them
as the means of committing a certain offense.
7
As a depublished case, Scott I has no precedential value and
cannot be cited. The citations refer to the related Hawai#i Supreme Court
case (Scott II) that depublished Scott I.

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warrant in this case did not meet these three requirements and

was therefore invalid. Curtis and Hall joined in Walker’s

Suppression Motion.

The State opposed the motion, arguing that the warrant

met the requirements set forth by the United States Supreme Court

in United States v. Grubbs, 547 U.S. 90 (2006). The State also

argued that the motion advocated a “hyper-technical warrant

reading,” even though “it is well-settled that a search warrant

and its support[] should be evaluated in totality, and examined

with common sense,” citing State v. Sherlock, 70 Hawai#i 271,

274, 768 P.2d 1290, 1293 (1989). The circuit court denied the

motion based on Grubbs, but also noted that the anticipatory

search warrant was “a very, very sloppy and apparently hastily

put together warrant.”

On October 10, 2011, the circuit court issued “Findings

of Fact, Conclusions of Law, and Order Denying [the Suppression

Motion].” The circuit court made the following relevant

Conclusions of Law:
. . . .

3. The State of Hawai#i has the authority to provide
constitutional protections to citizens above and
beyond that provided by the U.S. Constitution and the
U.S. Supreme Court, and has done so when the Hawai#i
Supreme Court has deemed necessary. State v. Kaluna,
55 Haw. 361, 367–69, 520 P.2d 51, 57–58 (1974).

4. The Hawai#i Supreme Court has, however, not
expanded on the constitutional protections provided by
the U.S. Constitution and U.S. Supreme Court with

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respect to anticipatory search warrants.

5. In accordance with controlling case law,
anticipatory search warrants need not contain future
tense anticipatory or triggering language where the
accompanying supporting affidavit adequately
demonstrates the anticipatory nature and intent of the
warrant itself. U.S. v. Grubbs, 547 U.S. 90, 126
S.Ct. 1494 (2006).

. . . .

7. This Court is bound to “pay great deference” to
the probable cause determination made by the issuing
judge, and is to employ “a common sense and realistic,
and not a hypertechnical reading of affidavits in
connection with the determination of probable cause.”
State v. Navas, 81 Hawai#i 29, 35 (Hawai#i App., 1995).

. . . .

9. Read in totality, the Anticipatory Search Warrant
at issue is in accordance with HRS Section 803–31 (as
amended effective April 29, 1998), and is not
constitutionally invalidated by present tense language
that appears on page one of the warrant. HRS Section
803–31[;] U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494
(2006).

On February 6, 2012, Curtis and Hall entered

conditional no contest pleas to the amended charge of

first-degree promoting a detrimental drug, reserving the right to

appeal the circuit court’s order denying the Suppression Motion

and its subsequent order denying a motion to reconsider. On

February 8, 2012, Curtis and Hall were each sentenced to pay a

$5,000 fine and a $105 crime victim compensation fee.8

C. ICA Proceedings

Curtis and Hall appealed to the ICA, arguing that the

8
Pursuant to a plea agreement, the charges against Walker were
dismissed without prejudice. Walker was not a party to the ICA appeal.

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circuit court erred in denying their motion to suppress.

The ICA held that the anticipatory search warrant was

valid. State v. Curtis, 137 Hawai#i 43, 52, 364 P.3d 941, 950

(2015). First, the ICA determined that Hawai#i law is similar

enough to federal law to warrant applying Grubbs. The ICA noted

that both the Hawai#i Constitution and U.S. Constitution “only

require that the warrant particularly describe the place to be

searched and the persons or things to be seized; they do not

require that search warrants additionally ‘include a

specification of the precise manner in which they are to be

executed.’” Id. at 49, 364 P.3d at 947. Additionally, the ICA

asserted that both Federal Rules of Criminal Procedure (FRCP)

Rule 41 and Hawai#i Rules of Penal Procedure (HRPP) Rule 41 “do

not require that a copy of the search warrant be presented to the

property owner or others before the warrant is executed.” Id. at

50, 364 P.3d at 948. Given these similarities, the ICA concluded

that Grubbs applied, and accordingly, anticipatory search

warrants do not require triggering conditions to be valid.

The ICA then declined to follow its conclusion in Scott

I “that an anticipatory search warrant must itself state the

triggering condition to be valid.” Id. at 51, 364 P.3d at 949.

The ICA based its reasoning on Scott I’s lack of precedential

value, and the fact that Grubbs was issued after Scott I had been

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overruled by Scott II. Further, the ICA noted that the

subsequent amendments to HRS § 803-31 “did not impose any

specific conditions for a valid anticipatory search warrant.”

Id. at 51, 364 P.3d at 949.

Second, the ICA adopted the following test that had

been employed by other jurisdictions:
Although the triggering condition need not be stated
in the warrant itself . . . the following two
conditions must be satisfied for an anticipatory
search warrant that does not state the triggering
condition to be valid: (1) the officer’s affidavit
must specifically identify the triggering condition
for the execution of the warrant; and (2) this
triggering condition must be satisfied before the
warrant is executed.

Id. at 50, 364 P.3d at 948.

The ICA argued that if these conditions are met, “any

risk that an anticipatory search warrant would be executed

prematurely if the warrant fails to identify the triggering

condition is exceedingly low.” Id. at 49, 364 P.3d at 947.

The ICA then concluded that these conditions were

satisfied in this case. As to the first condition, the ICA found

that the “affidavit in support of the search warrant specifically

identified the triggering condition for the execution of the

warrant––the delivery of the parcel to the Subject Premises.”

Id. As to the second condition, the ICA found that “KPD waited

until the parcel had been delivered to the Subject Premises (and

the tracking device indicated the parcel had been opened) before

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executing the warrant.” Id. at 50, 364 P.3d at 949. The ICA

further contended that there was “no plausible risk” of premature

execution because law enforcement “would not be disposed to

undermine the success of their efforts by premature execution of

the warrant.” Id. (quoting Alvidres v. Superior Court, 90 Cal.

Rptr. 682, 686 (Cal. App. 1970)).

The ICA thus concluded that the anticipatory search

warrant was valid, and stated that its holding was in line with

the purposes underlying Hawaii’s exclusionary rule and the

primary purpose of the Hawai#i Constitution, “to safeguard the

privacy and security of individuals against arbitrary invasions

by government officials.” Id. at 51-52, 364 P.3d at 949-50.

Accordingly, the ICA affirmed the circuit court’s denial of the

Suppression Motion.

Petitioners timely sought certiorari review, presenting

the following three questions:
A. Does article I, section 7 of the Hawai#i
Constitution afford greater protections for
anticipatory search warrants than the 4th Amendment of
the U.S. Constitution?

B. Did the ICA gravely err in holding the right to
privacy in the Hawai#i Constitution does not require
the triggering event to be included in an anticipatory
search warrant?

C. Did the ICA gravely err in giving effect to a
search warrant that was based on an objectively false
finding by the issuing court that the alleged
contraband was, at the time of the issuance, located
on the subject premises?

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II. Standard of Review

A. Constitutional Law

This court reviews questions of constitutional law de

novo under the “right/wrong” standard and thus exercises its “own

independent judgment based on the facts of the case.” State v.

Jenkins, 93 Hawai#i 87, 100, 997 P.2d 13, 26 (2000) (internal

quotation marks and citation omitted).

III. Discussion

This case presents a question of first impression in

this court: Does the Hawai#i Constitution require that an

anticipatory search warrant identify the triggering condition?

We hold that it does.

A. Background on Anticipatory Search Warrants

1. The Scott Decisions

An anticipatory search warrant is “a warrant based upon

an affidavit showing probable cause that at some future time (but

not presently) certain evidence of crime will be located at a

specified place.” Grubbs, 547 U.S. at 94. Anticipatory warrants

generally seek authority to search after the occurrence of a

future event, referred to as the “triggering condition,” which is

often the delivery of a package containing contraband to the

premises to be searched. See id. “By definition, it is issued

before the necessary events have occurred which will allow a

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constitutional search of the premises; if those events do not

transpire, the warrant is void.” Scott II, 87 Hawai#i at 80 n.1,

951 P.2d at 1243 n.1 (citation and internal quotation marks

omitted).

In Scott, an undercover police officer delivered a

parcel known to contain drugs to the defendant, and shortly after

the delivery, the defendant was arrested pursuant to an

anticipatory search warrant. Scott II, 87 Hawai#i at 81, 951

P.2d at 1244. The triggering condition was not stated on the

face of the warrant. Id. at 83, 951 P.2d at 1246. The defendant

moved to quash the search warrant and suppress the evidence, and

the circuit court granted the motion. Id. at 82, 951 P.2d at

1245.

On appeal, the ICA concluded that an anticipatory

search warrant was constitutionally permissible if the warrant:
(1) is issued by an authorized judge based on probable
cause supported by oath or affirmation; (2) is based
on a clear showing, supported by oath or affirmation,
of law enforcement’s need to have the [anticipatory
search warrant] issued before the occurrence of the
event that will generate the probable cause; (3)
particularly describes the place to be searched and
the things to be seized; (4) authorizes a search only
upon the occurrence of the event generating the
probable cause; (5) authorizes a search only within
the probable life of the probable cause; and (6) is
executed before the probable cause in fact expires.

Id. at 83, 951 P.2d at 1246.

The ICA invalidated the warrant because it failed to

satisfy requirements (1), (4), and (5). Id. It determined that

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the warrant failed requirement (4) because “[n]otwithstanding

[the officer’s] averments in the affidavit that the search would

not be conducted until after delivery of the Federal Express

parcel, the Warrant failed to condition its execution upon actual

delivery of the parcel.” Id.

In Scott II, this court, without addressing the

constitutionality of anticipatory search warrants, held that such

warrants were not permitted under the then-existing HRS § 803-31

(1993)9 and HRPP Rule 41(a) (1995)10. Id. at 81, 951 P.2d at

1244. This court reasoned that HRS § 803-31 authorized searches

of articles “supposed to be in the possession of the person whose

premises are to be searched.” Id. at 84, 951 P.2d at 1247

(emphasis in original). We further reasoned that HRPP Rule 41

only authorized a judge to issue a search warrant “within the

9
HRS § 803-31 (1993) provided:

Search warrant; defined. A search warrant is an order
in writing made by a judge or other magistrate,
directed to an officer of justice, commanding the
officer to search for certain articles supposed to be
in the possession of one who is charged with having
obtained them illegally, or who keeps them illegally,
or with the intent of using them as the means of
committing a certain offense.
10
HRPP Rule 41(a) (1995) provided:

Authority to Issue Warrant. A search warrant
authorized by this rule may be issued by any district
or circuit judge within the circuit wherein the
property sought is located. Application therefor
should be made to a district judge wherever
practicable.

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circuit wherein the property sought is located.” Id. (quoting

HRPP Rule 41(a)) (emphasis in original). This court thus ordered

Scott I depublished without addressing the ICA’s six factors.

Id. at 85, 951 P.2d at 1248.

In response to Scott II, the legislature amended HRS

§ 803-31 to authorize the issuance of anticipatory search

warrants. 1998 Haw. Sess. Laws Act 65, § 1 at 145. The

amendment added the following phrase:
A search warrant is an order in writing made by a
judge or other magistrate, directed to an officer of
justice, commanding the officer to search for certain
articles supposed to be in the possession of or which
are anticipated to be in the possession of one who is
charged with having obtained them illegally, or who
keeps them illegally, or with the intent of using them
as the means of committing a certain offense.

Id. (emphasis added).11

2. United States v. Grubbs

Eight years after this court’s decision in Scott II,

the United States Supreme Court considered the permissibility of

anticipatory search warrants in Grubbs. In Grubbs, the defendant

purchased a videotape containing child pornography from a website

11
HRPP Rule 41(a) was amended in 1999 to state:

(a) Authority to issue warrant. Except as otherwise
provided by statute, a search warrant may be issued by
any district or circuit judge (1) within the circuit
wherein the property sought is located; or (2) within
the circuit where the property is anticipated to be
located. Application therefor should be made to a
district judge wherever practicable.

(Emphasis added.)

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operated by an undercover postal inspector. 547 U.S. at 92. The

Postal Service arranged a delivery to Grubbs, and the police

obtained an anticipatory search warrant that did not specify the

triggering condition. Id. Around thirty minutes into the

search, Grubbs was given a copy of the warrant, which did not

include the supporting affidavit that explained when the warrant

would be executed. Id. at 93. The search of Grubbs’ residence

led to the seizure of a number of items, including the videotape.

Id. Grubbs moved to suppress the evidence, arguing that the

warrant was invalid because it failed to name the triggering

event. Id. The District Court denied the motion. Id.

On appeal, the Ninth Circuit reversed, holding that

“the particularity requirement of the Fourth Amendment[12] applies

with full force to the condition precedent to an anticipatory

search warrant.” United States v. Grubbs, 377 F.3d 1072, 1077

(9th Cir.) amended on denial of reh’g, 389 F.3d 1306 (9th Cir.

2004), rev’d, 547 U.S. 90 (2006). “The rationale for this rule

is simple: ‘a warrant conditioned on a future event presents a

12
The Fourth Amendment to the U.S. Constitution provides:

The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and the persons
or things to be seized.

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potential for abuse above and beyond that which exists in more

traditional settings: inevitably, the executing agents are

called upon to determine when and where the triggering event

specified in the warrant has actually occurred.’” Id. at 1078

(quoting Hotal, 143 F.3d at 1226). It therefore concluded:
Anticipatory search warrants are invalid absent
“clear, explicit, and narrow” triggering conditions.
See Hotal, 143 F.3d at 1226. Those triggering
conditions may be listed either in the warrant itself
or in attached documents, but whatever document
contains them must be presented to the person whose
property is being searched. Absent such presentation,
individuals would “stand [no] real chance of policing
the officers’ conduct,” because they would have no
opportunity to check whether the triggering events by
which the impartial magistrate has limited the
officers’ discretion have actually occurred.

Grubbs, 377 F.3d at 1079.

In short, the failure to include the triggering

conditions in the warrant or attach the affidavit to the warrant

was a fatal error that required that all evidence obtained during

that search be suppressed. Id. at 1079. Because the postal

inspectors “failed to present the affidavit––the only document in

which the triggering conditions were listed––to Grubbs or [his

wife],” the warrant was “inoperative, and the search was

illegal.” Id.

The Supreme Court reversed the Ninth Circuit’s

judgment, holding that anticipatory search warrants are not per

se unconstitutional and that they do not require triggering

conditions to be included in the warrant itself. 547 U.S. at 94,

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97.

First, the Court held that anticipatory search warrants

are not categorically unconstitutional under the Fourth

Amendment, noting that “every Court of Appeals to confront the

issue” has held the same. Id. at 95. The Court explained that

ordinary warrants are “in a sense, ‘anticipatory’” because “the

magistrate’s determination that there is probable cause for the

search amounts to a prediction that the item will still be there

when the warrant is executed.” Id. With anticipatory warrants,

“the fact that the contraband is not presently located at the

place described in the warrant is immaterial, so long as there is

probable cause to believe that it will be there when the search

warrant is executed.” Id. at 96.

The Court reasoned that anticipatory warrants are

therefore “no different in principle from ordinary warrants”

because they both require a magistrate judge “to determine (1)

that it is now probable that (2) contraband, evidence of a crime,

or a fugitive will be on the described premises (3) when the

warrant is executed.” Id. (emphases in original).

The Court then held that the Fourth Amendment “does not

require that the triggering condition for an anticipatory search

warrant be set forth in the warrant itself.” Id. at 99. In

response to the Ninth Circuit’s conclusion regarding the Fourth

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Amendment particularity requirement, the Court responded that the

Fourth Amendment “specifies only two matters that must be

‘particularly describe[ed]’ in the warrant: ‘the place to be

searched’ and ‘the persons or things to be seized.’” Id. at

97-98.

The Court also rejected Grubbs’ two policy arguments.

First, Grubbs argued that it is necessary to include the

triggering condition in the warrant “to delineate the limits of

the executing officer’s power” because “if there is a

precondition to the valid exercise of executive power, that

precondition must be particularly identified on the face of the

warrant.” Id. at 98 (brackets omitted). The Court responded

that “[t]he Fourth Amendment does not require that the warrant

set forth the magistrate’s basis for finding probable cause, even

though probable cause is the quintessential ‘precondition to the

valid exercise of executive power.’” Id. Similarly, the court

stated that the Fourth Amendment does not require the warrant to

describe a triggering condition. Id.

Second, Grubbs argued that the triggering condition

needed to be in the warrant to “assur[e] the individual whose

property is searched or seized of the lawful authority of the

executing officer, his need to search, and the limits of his

power to search.” Id. The Court responded that neither the

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Fourth Amendment nor FRCP Rule 41 requires the executing officer

to present a copy of the warrant to the property owner before

conducting the search. Id. at 99. The Court held that the

Constitution does not give property owners “license to engage the

police in debate over the basis for the warrant,” but protects

them by requiring that an impartial judicial officer issue the

warrant and by providing “a right to suppress evidence improperly

obtained and a cause of action for damages.” Id.

Hence, because the Fourth Amendment does not require

the triggering condition to be set forth in the warrant itself,

the Court held that the Ninth Circuit erred in invalidating the

warrant at issue. Id.

Justice Souter, joined by Justices Stevens and

Ginsburg, concurred in part and concurred in the judgment. Id.

Justice Souter agreed that anticipatory search warrants are

constitutional and that the Ninth Circuit erred in invalidating

the warrant, but wrote separately to “qualify some points” made

by the Majority. Id. at 99-100. He agreed with the Majority’s

argument regarding the particularity requirement, but noted that

a warrant that does not specify a triggering condition can lead

to “several untoward consequences with constitutional

significance.” Id. at 100. First, “a warrant that fails to tell

the truth about what a magistrate authorized cannot inform the

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police officer’s responsibility to respect the limits of

authorization,” a danger with real significance if the warrant is

not executed by the same official who applied for it. Id.

Second, Justice Souter stated that an incomplete

anticipatory warrant does not address an owner’s interest in “an

accurate statement of the government’s authority to search

property.” Id. at 101. He noted that the right to inspect a

warrant prior to a search has not yet been determined. Id.

However, “if a later case holds that the homeowner has a right to

inspect the warrant on request, a statement of the condition of

authorization would give the owner a right to correct any

misapprehension on the police’s part that the condition had been

met when in fact it had not been.” Id.

B. Anticipatory Search Warrants Are Not Categorically
Unconstitutional

As discussed above, Grubbs held that anticipatory

search warrants are constitutional under the Fourth Amendment,

noting that “every Court of Appeals to confront the issue” has

held the same. 547 U.S. at 95. Further, the Hawai#i

legislature’s response to Scott II was to amend HRS § 803-31 to

give judges the authority to issue anticipatory search warrants.

Shortly thereafter, this court amended HRPP Rule 41 to permit

anticipatory search warrants.

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However, this court has never explicitly ruled on

whether anticipatory search warrants are permitted under article

I, section 7 of the Hawai#i Constitution. See Scott II, 87

Hawai#i at 81, 951 P.2d at 1243 (disposing of the case “[w]ithout

addressing the constitutionality of an [anticipatory search

warrant]”). Thus, we address this threshold question before

considering whether the Hawai#i Constitution requires triggering

conditions to be on the face of an anticipatory search warrant.

We hold that anticipatory search warrants are valid

under the Hawai#i Constitution when supported by probable cause

because they are consistent with the requirements of article I,

section 7, and they incentivize police officers to obtain

warrants prior to conducting searches.

First, article I, section 7 does not contain any

language specifying the time at which a warrant should issue. It

states:
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; and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched and
the persons or things to be seized or the
communications sought to be intercepted.

The Hawai#i Constitution thus requires that warrants be

based on probable cause and particularly describe the place to be

searched and property to be seized. See State v. Woolsey, 71

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Haw. 638, 640, 802 P.2d 478, 479 (1990). Anticipatory warrants

satisfy these conditions--even if probable cause will not arise

until some future event.

Second, the probable cause analysis is conceptually “no

different in principle” for anticipatory search warrants because

they still require a neutral judge to determine “(1) that it is

now probable that (2) contraband, evidence of a crime, or a

fugitive will be on the described premises (3) when the warrant

is executed.” Grubbs, 547 U.S. at 96 (emphases in original).

With either ordinary warrants or anticipatory search warrants,

the judge must review the sworn affidavits to determine whether,

at the time of the search, the items to be seized will be “in the

possession of one who is charged with having obtained them

illegally, or who keeps them illegally, or with the intent of

using them as the means of committing a certain offense.” HRS §

803-31. Thus, “when a government official presents independent

evidence indicating that delivery of contraband will, or is

likely to, occur, and when the magistrate conditions the warrant

on that delivery, there is sufficient probable cause to uphold

the warrant.” United States v. Garcia, 882 F.2d 699, 702 (2d

Cir. 1989). Also, anticipatory search warrants may make it more

likely that the items to be seized will be at the specified

location at the time of the search because they are based on the

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future occurrence of identified events, not “solely upon the

known prior location of the items to be seized.” Commonweath v.

Soares, 424 N.E.2d 221, 224 (Mass. 1981).

Third and finally, anticipatory search warrants

incentivize police officers to obtain approval from a neutral

judge prior to searching private premises. Given “the speed with

which government agents are required to act, especially when

dealing with the furtive and transitory activities of persons who

traffic in narcotics,” police often have to decide whether to

“proceed without a warrant or risk losing both criminal and

contraband.” Garcia, 882 F.2d at 703.

The purposes of article 1, section 7 of the Hawai#i

Constitution are better served by incentivizing officers to

obtain warrants in advance “because a neutral judge, rather than

a police officer acting in the heat of the moment, makes the

critical determination of whether probable cause for a search

exists.” People v. Carlson, 708 N.E.2d 372, 375-76 (Ill. 1999).

By requiring neutral judges to determine whether known facts

legally justify a search prior to the search taking place,

anticipatory search warrants decrease the chance that a citizen

will be subject to an unreasonable search, seizure, or invasion

of privacy.

Thus, we hold that anticipatory search warrants do not

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violate the Hawai#i Constitution because they are consistent with

the requirements and purposes of article 1, section 7.13

C. Triggering Conditions Must Be Identified in the Anticipatory
Search Warrant

Grubbs held that the Fourth Amendment “does not require

that the triggering condition for an anticipatory search warrant

be set forth in the warrant itself.” 547 U.S. at 99. However,

Grubbs does not dispose of this case. As correctly noted by

Petitioners, “‘[A]rticle I, section 7 of the Hawai#i

Constitution’ provides a ‘more extensive right of privacy . . .

than that of the United States Constitution.’” Accordingly, we

may provide broader protections if required by the relevant

constitutional provisions and our case law interpreting those

provisions. State v. Lopez, 78 Hawai#i 433, 445, 896 P.2d 889,

901 (1995) (“[I]t is well-established that as long as we afford

defendants the minimum protection required by the federal

constitution, we are free to provide broader protection under our

state constitution.”).

13
This holding is consistent with the vast majority of state courts
who have addressed this issued. See Norma Rotunno, Validity of anticipatory
search warrants––state cases, 67 A.L.R.5th 361 Art. II, § 3 (originally
published in 1999, updated weekly) (collecting cases). These include states
that have privacy rights in their state constitutions, similar to those
enumerated in the Hawai#i Constitution. See, e.g., Johnson v. State, 617 P.2d
1117, 1124 (Alaska 1980); State v. Cox, 522 P.2d 29, 34 (Ariz. 1974); People
v. Shapiro, 37 Cal. App. 3d 1038, 1042 (2d Dist. 1974); People v. Sousa, 18
Cal. App. 4th 549, 557 (1st Dist. 1993); Bernie v. State, 524 So.2d 988, 991
(Fla. 1998); People v. Carlson, 708 N.E.2d 372, 376 (Ill. 1999).

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Unlike the U.S. Constitution, the Hawai#i Constitution

contains “a specific provision expressly establishing the right

to privacy as a constitutional right” in article 1, section 6.14

State v. Mallan, 86 Hawai#i 440, 448, 950 P.2d 178, 186 (1998)

(emphases in original). Further, unlike the Fourth Amendment,

article 1, section 7 recognizes a right “against unreasonable . .

. invasions of privacy,” which “protects people from unreasonable

government intrusions into their legitimate expectations of

privacy.” Navas, 81 Hawai#i at 122, 913 P.2d at 48. This

provision was “designed to protect the individual from arbitrary,

oppressive, and harassing conduct on the part of government

officials.” Id. (quoting Nakamoto v. Fasi, 64 Haw. 17, 23, 635

P.2d 946, 952 (1981)).

We have often recognized broader protections “[i]n the

area of searches and seizures under article I, section 7” than

our federal counterparts. Lopez, 78 Hawai#i at 445, 896 P.2d at

901. This is because article I, section 7 is “enforceable by a

rule of reason which requires that governmental intrusions into

the personal privacy of citizens of this State be no greater in

intensity than absolutely necessary.” Id. at 446, 896 P.2d at

14
Article 1, section 6 of the Hawai#i Constitution provides:

The right of the people to privacy is recognized and
shall not be infringed without the showing of a
compelling state interest. The legislature shall take
affirmative steps to implement this right.

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902 (quoting Kaluna, 55 Haw. at 369, 520 P.2d at 58–59) (emphasis

in original).

To ensure that governmental intrusions into citizens’

privacy is no greater than absolutely necessary, we hold that an

anticipatory search warrant must itself identify the triggering

condition.

We find the reasoning of the Ninth Circuit Court of

Appeals in a pre-Grubbs case, United States v. Hotal, 143 F.3d

1223 (9th Cir. 1998), to be persuasive. Faced with the same

question presented here, the Ninth Circuit held that “when a

warrant’s execution is dependent on the occurrence of one or more

conditions, the warrant itself must state the conditions

precedent to its execution and these conditions must be clear,

explicit, and narrow.” Id. at 1226. It explained that

anticipatory search warrants present a unique potential for

abuse:
[A] warrant conditioned on a future event presents a
potential for abuse above and beyond that which exists
in more traditional settings: inevitably, the
executing agents are called upon to determine when and
whether the triggering event specified in the warrant
has actually occurred. Consequently, magistrates who
are asked to issue such warrants must be particularly
vigilant in ensuring that the opportunities for
exercising unfettered discretion are eliminated.

Id. at 1226-27 (quoting United States v. Ricciardelli, 998 F.2d

8, 12 (1993)).

The Ninth Circuit explained that triggering conditions

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serve the important role of “ensur[ing] that all parties [are]

advised when the search may first take place, and the conditions

upon . . . which the search is authorized and may lawfully be

instituted.” Id. at 1227. In this way, triggering conditions

are similar to the particularity requirements, as both serve to

“ensur[e] that the discretion of the officers executing the

warrant is limited” and to “inform[] the person subject to the

search of what items are authorized to be seized.” Id. at 1227.

Thus, the court stated that the warrant’s identification of the

triggering condition “is not merely ‘efficient’ or preferable,”

but is “the only way effectively to safeguard against

unreasonable and unbounded searches.” Id.

We agree with the reasoning in Hotal that the

triggering condition must appear on the face of the warrant to

ensure that the executing officer does not exceed the scope of

the warrant. As the Grubbs concurrence explained, “a warrant

that fails to tell the truth about what a magistrate authorized

cannot inform the police officer’s responsibility to respect the

limits of authorization[.]” 547 U.S. at 100 (Souter, J.,

concurring). It is particularly important that anticipatory

search warrants clearly inform executing officers about

triggering conditions because the triggering condition is

integral to the judge’s probable cause finding. Scott II, 87

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Hawai#i at 80 n.1, 951 P.2d at 1243 n.1 (citation omitted) (“By

definition, [an anticipatory search warrant] is issued before the

necessary events have occurred which will allow a constitutional

search of the premises; if those events do not transpire, the

warrant is void.”).

Anticipatory warrants’ potential for abuse “assum[es]

real significance when the warrant is not executed by the

official who applied for it and happens to know the unstated

condition.” Grubbs, 547 U.S. at 100 (Souter, J., concurring).

If the officer who executes the warrant is different from the

officer who applied for the warrant, the executing officer may

“simply take[] such a warrant on its face and make[] the

ostensibly authorized search before the unstated condition has

been met,” thereby subjecting a private citizen to an

unreasonable search. Id. at 100-01.

Further, as the Grubbs concurrence noted, a warrant

that does not provide notice of the triggering condition

adversely impacts “an owner’s interest in an accurate statement

of the government’s authority to search property.” 547 U.S. at

101 (Souter, J., concurring). HRPP Rule 41(d) requires that

“[t]he officer taking property under the warrant shall give to

the person from whom or from whose premises the property was

taken a copy of the warrant and a receipt for the property taken

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or shall leave the copy and receipt at the place from which the

property was taken.” Consistent with this requirement, a

warrant’s clear identification of the triggering condition

“reliably ‘assures the individual whose property is searched or

seized of the lawful authority of the executing officer, his need

to search, and the limits of his power to search.” Grubbs, 547

U.S. at 101 (quoting United States v. Chadwick, 433 U.S. 1, 9

(1977)) (Souter, J., concurring).

This holding is consistent with the purposes underlying

Hawaii’s exclusionary rule: judicial integrity, protection of

individual privacy, and deterrence of illegal police misconduct.

See State v. Torres, 125 Hawai#i 382, 394, 262 P.3d 1006, 1018

(2011). Requiring triggering conditions in anticipatory warrants

deters executing officers from conducting a search prior to the

occurrence of the triggering condition and thereby acting beyond

the scope of the authority granted of the judge. By extension,

this protects individual privacy by preventing unreasonable,

arbitrary searches. Lastly, this holding will enhance judicial

integrity by preventing courts from “placing their imprimatur on

evidence that was illegally obtained” pursuant to a

constitutionally-deficient warrant. Id. at 395, 262 P.3d at 1019

(citation omitted).

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IV. Conclusion

For the foregoing reasons, we hold that anticipatory

search warrants must identify the triggering condition.

Accordingly, the ICA’s February 23, 2016 judgment on appeal

affirming the circuit court’s denial of Petitioners’ suppression

motion is vacated, and the case is remanded to the circuit court

for proceedings consistent with this opinion.

Daniel Hempey /s/ Mark E. Recktenwald
for petitioner Hall
/s/ Paula A. Nakayama
Michelle Premeaux
for petitioner Curtis /s/ Sabrina S. McKenna

Tracy Murakami /s/ Richard W. Pollack
for respondent
/s/ Michael D. Wilson

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