State v. Tia

130 Hawai'i 346

310 P.3d 1047

STATE of Hawai‘i, Plaintiff–Appellee

v.Peter TIA, Defendant–Appellant.

No. 29615.

Intermediate Court of Appeals of Hawai‘i.

Sept. 10, 2010.

Appeal from the Circuit Court of the First Circuit (CR. No. 08–1–0985).

Venetia K. Carpenter–Asui, on the briefs, for Defendant–Appellant.

Stephen K. Tsushima, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for Plaintiff–Appellee.

FUJISE and GINOZA, JJ. with FOLEY, Presiding Judge, dissenting separately.

MEMORANDUM OPINION

Defendant–Appellant Peter Tia (Tia) appeals from the Amended Judgment of Conviction and Sentence entered on January 29, 2009 in the Circuit Court of the First Circuit (circuit court).¹ Tia argues on appeal that the circuit court erred in denying his motion to suppress evidence because the evidence in question was obtained due to an improper pat-down search incident to a lawful arrest.

Based upon a careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised by the parties, we agree that the trial court erred and Tia's motion to suppress should have been granted.

I. STATEMENT OF FACTS

On June 24, 2008, Plaintiff–Appellee State of Hawai‘i (State) filed a felony information charging Tia with “knowingly possess[ing] the drug cocaine, thereby committing the offense of Promoting a Dangerous Drug in the Third Degree, in violation of Section 712–1243 of the Hawaii Revised Statutes [HRS].” ²

On August 25, 2008, Tia filed a Motion to Suppress Evidence, requesting that the circuit court suppress any physical evidence, testimony, or documentation of a packet and its contents, allegedly cocaine. Tia asserted that such evidence was seized from him in violation of his constitutional rights and argued that, while it is permissible to pat-down an arrestee incident to a lawful arrest, the pat-down search in this case was illegal because it was overly intrusive.

On September 4, 2008, the State filed a Memorandum in Opposition to Defendant's Motion to Suppress Evidence, arguing that the pat-down search was proper, the packet came into plain view during the pat-down search, and that the packet would have been inevitably discovered during a pre-incarceration search.

On September 23, 2008, a hearing was held on the suppression motion. Honolulu Police Department (HPD) Officer Daniel Sellers (Officer Sellers) was the only witness to testify at the hearing. Officer Sellers testified he was on routine patrol on June 23, 2008 and as he drove makai-bound on Nu‘uanu Avenue, he recognized Tia sitting at a bus stop just makai of Pauahi Street. Officer Sellers believed that Tia had an outstanding warrant for a narcotics-related arrest and called HPD to verify his belief. Upon confirming with HPD records personnel that there was a $75,000 warrant for Tia's arrest, Officer Sellers returned to the bus stop where he had seen Tia. Tia was no longer at the bus stop, but Officer Sellers guessed that Tia was likely in a nearby bar because it was the only place open. Another officer, Officer Nahulu, soon arrived to assist in the transport of Tia. Officer Sellers located Tia at the bar, approached Tia and asked him to step outside. Tia voluntarily complied, and once outside Officer Sellers notified Tia that Tia was being arrested for the outstanding warrant. Officer Sellers handcuffed Tia and walked Tia to Officer Nahulu's transport vehicle.

Officer Sellers testified that as he patted down Tia's right front shorts pocket, he:

felt a hard cylindrical object in which I had no idea at the time what it was, so I made the decision to take it out during—prior to transport, because I didn't know if it was a weapon or could contain a weapon. I reached inside Mr. Tia's right pocket and removed this cylindrical object, which as soon as I pulled and exposed it from the pocket, I could see that it was an M & M's container. I continued to pull it out, in which that time a clear plastic Ziploc bag containing rock-like objects resembling that of cocaine fell to the ground as I pulled the M & M's container out of his pocket.

When asked whether the cocaine packet was inside or next to the M & M's container, Officer Sellers responded that he:

believe[d] it had to have been next to it, because when I reached into his pocket, I grasped only the element—I'm sorry, M & M's container, and when I pulled it out, the packet must have been loose in Mr. Tia's pocket as it fell simultaneously as I pulled it out of his pocket. So the cap on the M & M container was closed and remained closed until—I mean, not until, but all the way until I submitted it in to evidence.

Officer Sellers further testified that he did not have to open anything to see the packet, and that he never opened the M & M's container.

On cross-examination, Officer Sellers noted that his initial police report indicated that he thought the hard cylindrical object could be a weapon. He further testified that on other occasions he has “pulled out small little batons out of there, collapsible type of batons that are similar shape” and he did not want to take the chance of transporting Tia with a weapon or something he could use to escape. When he reached into Tia's pocket, Officer Sellers was able to see the top of the M & M's container, which was a little sideways, and at that point he knew it was not a baton, but that it was a M & M's container. However, he continued to remove the container because he was concerned it could contain a handcuff key which could possibly assist Tia as a means of escape.

Officer Sellers also briefly testified about the type of search Tia would undergo at the central receiving division, stating that Tia would have undergone a more thorough search at which time everything would be removed from his pockets.

On September 25, 2008, the court issued its ruling denying Tia's motion to suppress. After a recitation of the facts adduced at the hearing, the court stated:

The Court finds that had the officer believed it was just a weapon when he pulled it out even midway and exposed that it was a candy container, obviously he knew that was not a weapon, so that falls by the wayside. Namely, once he exposed that it was an M & M's container, his reasonable belief that this was a weapon wasn't reasonable at that point.

The Court finds that the officer nevertheless was reasonable to believe that the container may have had a means for escape, namely the officer had indicated through his testimony, and it's uncontroverted because there was no cross-examination or examination of the officer, that he had other occasion—on other occasions seen people have handcuff keys in containers.

His actions is [sic] also consistent because the search was prior to placing the defendant into the transport car. The officer never opened up the container, he just removed it for safe keeping. When he pulled the container out, a ziploc bag containing a substance, which later was the substance, fell out of the pocket and therefore was exposed.

The Court finds that the motion to suppress evidence is denied based on the search incident to lawful arrest as well as the subsequent exposure of the item based on the search.

The state also proffers an argument, namely inevitable discovery, and the argument or the defense of the claim of inevitable discovery would be valid in this case, however, the officer's testimony fell short of the claim of inevitable discovery. As the supreme court has held, the burden is on the state to prove by clear and convincing evidence that inevitable discovery is warranted in this case.

The officer testified in passing generally that people who are arrested are taken down and they're searched. We don't know—and the Court cannot just make a presumption that this is done on [sic] every case, so therefore, as the basis for inevitable discovery, although it's a valid—that would make a valid exception to the search in this case, the evidence by the officer wasn't sufficient in terms of clear and convincing.

So the Court does grant—does deny the motion to suppress evidence, finding that the search was incident to a lawful arrest, and will prepare the order as such.

On October 6, 2008, the circuit court issued findings of fact and conclusions of law ³ in an order denying the motion to suppress. Relevant portions of the circuit court's findings of fact and conclusions of law state:

FINDINGS OF FACT

....

12. Upon arriving at the police transport vehicle, Officer Seller[s] began to conduct a pat down search of the Defendant immediately before placing Defendant into the transporting vehicle.

13. Officer Seller[s] testified that he conducted the pat down search to insure that the Defendant had no weapons or a means to escape prior to entering the police transport vehicle.

14. Officer Seller[s] testified that he didn't want to take a chance that the Defendant would be transported with a possible weapon or a means that he could use to escape.

15. While patting down Defendant's right front pocket, Officer Seller[s] felt a “hard, thick, cylindrical object tucked within the pocket.” According to Officer Seller's [sic] affidavit ... he was “unsure if [the] object could possibly by [sic] a weapon or contain a weapon, so [he] decided at the time to remove [the] unknown object prior to transport.”

16. ... Officer Seller[s] testified that at the time he felt the object in the Defendant's pocket, he believed that the object may have been a weapon or could be used as a means to escape. Officer Seller[s] testified that he believed that the items might have been a collapsible baton or a container containing a handcuff key.

17. Officer Seller[s] testified that as he began to pull the object out, he saw the top of the object and could see that the object was a[”]mini M & M's” candy container.

18. Officer Seller[s] stated that when he saw the candy container he believed that the container was not a weapon. However...