Thursday, August 20, 2009

Hindering-Prosecution Prosecution not Hindered by Unlawful Police Conduct


State v. Line (HSC August 11, 2009)

Background. The police caught Dean Line with a crystal methamphetamine pipe and tiny plastic bags. Dean told the police that he would arrange a buy with his dealer. They agreed. Dean went to his house and never came out. The police went to the house to get him, but a woman's voice from the house indicated that he was not home. The police went away. The next day Officer Perreira and Sergeant Kikuchi went back to the house to arrest Dean. Again, a woman's voice told them that he was not home. The police left again.

Two days later, the police returned. They had no warrant for the house. When they pulled up they saw Dean, who ran back into the house. The police chased him to the house in the back. Officer Perreira and Sergeant Kikuchi were not in uniform, but they announced that they were the police, ordered Dean to stop, and flashed their guns, badges, and taser guns. Dean ran into the house through a sliding glass door.

Officer Perreira got to the door, but Line was "brac[ing] herself into the sliding glass door's opening with her hands on the slider and her back against the door frame." She was blocking entry and told the police to "Get the f--- out of here." The police told them that they had to arrest Dean and Line told them to get out and that they needed a search warrant. Sergeant Kikuchi yelled, "police, get out of the way." Line refused to move and Sergeant Kikuchi pushed Officer Perreira through the doorway, who knocked down Line. They went into the house. Line grabbed Sergeant Kikuchi's shirt and yelled at him to get out. They never found Dean. Later, Officer Perreira noticed a scratch on his arm and attributed it to a struggle with Line. Sergeant Kikuchi's shirt was torn.

Line was charged with one count of hindering prosecution in the first degree (HRS § 710-1029(1)) and assault of a law enforcement officer in the 2d degree (HRS § 707-712.6). A jury found Line guilty of hindering prosecution and acquitted her of assault of a law enforcement officer. She appealed and the ICA affirmed.

Hindering Prosecution not Precluded by Unlawful Police Conduct. A person hinders prosecution in the first degree "if, with the intent to hinder the apprehension . . . of another for a class A, B or C felony or murder in any degree, the person renders assistance to the other person." HRS § 710-1029(1). The HSC rejected Line's argument that by standing in the doorway and requesting the plain-clothes officers to show a warrant before going into her home, she was not "render[ing] assistance to the other person." The HSC concluded that the police officers' entry into Line's house was unlawful because no exigent circumstances were present. Mapp v. Ohio, 367 U.S. 643, 659 (1961).

But even though the police unlawfully entered into Line's house, the HSC still applied the hindering prosecution statute against Line. According to the HSC, there are other jurisdictions holding that an illegal search and seizure does not bar convictions for "an unlawful response committed by the person subjected to an illegal police action." See New Jersey v. Casimono, 593 A.2d 827 (N.J. App. 1991); United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971). The HSC also relied on United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978). According to the HSC, the 9th Circuit held that when Ms. Prescott refused to let federal agents enter her home without a warrant, she was "passive" and did not "forcibly resist[] the entry into her apartment." Id. at 1351.

The HSC distinguished Prescott. According to the HSC, Line's "conduct exceeded a mere passive assertion of a right against a warrantless search of her home." Unlike Prescott, Line obstructed the police by placing herself in the sliding glass door opening. She also cussed at the police and "struggled" with Officer Perreira. According to the HSC, Line "did not just passively refuse to open the door to her home; she intentionally used physical force to obstruct the officers." Thus, held the HSC, the hindering prosecution conviction was not barred.

Drawing the Line line. The HSC distinguished Line's case from Prescott because Line was not passively refusing to open the door for the officers. In Prescott, the defendant was charged with hindering prosecution because when the agents came to her apartment she refused to unlock her door. She also lied to the agents when she said that the suspect they were looking for was not in her apartment. She also asked if the police had a warrant, which they did not. Eventually, the police broke down the door. But here, according to the HSC, we have a different situation. Line physically stood in the door opening and refused to allow the police to go inside. She, like Prescott, demanded to see a warrant. But unlike Prescott she "struggled" with one of the officers.

Try this at home! What if there was no struggle? Does it matter that she physically stood in the sliding glass door and did not allow them in? The staff at Hawai'i Legal News experimented. I stood in the doorway onto the lanai at my house and "braced [myself] into the sliding glass door's opening with [my] hands on the slider and [my] back against the door frame." I told an imaginary officer to stay out and asked to see a warrant. Then I imagined the officer being pushed into me and knocking me down. Would that be considered "physical force to obstruct" officers? Where do we draw the line? These questions remain unanswered for the time being and refining the Line line will take time.

Insufficient Evidence for Hindering Prosecution in the First Degree. Although Line could be prosecuted for hindering prosecution in the first degree, it does not mean that there was sufficient evidence for it. Hindering prosecution in the first degree requires the State to prove beyond a reasonable doubt that the defendant was aware that the police were trying to apprehend a person "for a class A, B or C felony[.]" HRS § 702-206. According to the HSC, there was no evidence that Line was aware of any crime committed by Dean. All the record had was that Line was aware the police wanted to arrest him.

But the Lesser-Included Offense is Sufficient. A defendant can be "convicted of an offense included in an offense charged in the indictment or the information." HRS § 701-103(4)(a). An offense is included when it "is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" Id. Unlike hindering prosecution in the first degree, hindering prosecution in the 2d degree requires that the defendant be aware that the police were attempting to apprehend another "for a crime." HRS § 710-1030(1). According to the HSC, the two offenses "differ only in that the first degree offense requires that the 'crime' be a felony or murder" and that hindering prosecution in the 2d degree is a misdemeanor. The HSC held that the misdemeanor is a lesser-included offense and that there was sufficient evidence for it. Thus, the HSC vacated the case and remanded it for entry of judgment of conviction for the lesser-included offense. See State v. Malufau, 80 Hawai'i 126, 136, 906 P.2d 612, 622 (1995); State v. Mattiello, 90 Hawai'i 255, 262, 978 P.2d 693, 700 (1999).

A Procedural Point. On appeal, the State admitted that it was error to not include the lesser-included offense of hindering prosecution in the 2d degree and that the ICA plainly erred in failing to address that point. "[W]here the prosecution admits to error, [the HSC] has stated that, even when the prosecutor concedes error, before a conviction is reversed, it is incumbent on the appellate court to first ascertain . . . that the confession of error is supported by the record and well-founded in law and second to determine that such error is properly preserved and prejudicial." State v. Hoang, 93 Hawai'i 333, 336, 3 P.3d 499, 502 (2000). That is why the HSC addressed the issues.

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