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Showing posts from December, 2009

Factual Basis Required Before Triggering the Statutory Duty to Confer

Hui Malama I Na Kupuna O Nei v. Wal-Mart (ICA December 16, 2009)Background. Wal-Mart bought vacant land off of Ke'eaumoku Street in Honolulu. Before the purchase, numerous studies had been done on the land. All suggested no significant archaeological or historical sites were present. Old maps also showed that there was nothing of archaeological or historical interest. Wal-Mart also conducted a private assessment, which concluded nothing present. Wal-Mart applied for building permits from the City and County of Honolulu. The City checked a computer database check, which included information on properties listed on state and federal national historic registers and locations of known burials and sites provided by the Dept. of Land and Natural Resources. The database check showed that the property had been used for commercial purposes for over fifty years. The City issued the building permits without conferring with the State Historic Preservation Division (SHPD) at all.Const…

You Don't Need a Body to Prove a Murder

State v. Torres (ICA December 15, 2009)OVERRULED IN PART BY HSC.Background. Gallegos worked as a cashier at the Pearl Harbor Navy Exchange. He was last seen leaving his post with Torres, a police officer on the base. Earlier that day, Gallegos was given a bag with $80,000. Later that day, Torres was found by federal law enforcement officers in his car on the base. The searched his car and found $78,000, a revolver, a stun gun, and Gallegos' personal belongings like his wallet and driver's license. Gallegos was never seen again.At trial, Agent Robbins testified that he recovered Torres' revolver. He testified that the gun had been recently fired, "within the same day, probably about eight hours or so." Agent Robbins based his opinion on the moistness of the powder residue and the absence of any indication of rust on the gun.Davis also testified at trial. Davis testified that years later she became acquainted with Torres, who had by then moved to Californi…

ICA: Search of an Area that Can Possibly Contain Contraband Still Exceeds Scope

State v. Thornton (ICA December 1, 2009)Background. HPD stopped a car in Waikiki for an expired motor vehicle tax. Thornton was driving and Gipson was in the passenger's seat. Thornton presented his ID, vehicle registration, and insurance card. The police suspected that the insurance card was fraudulent and called the insurance company. In the meantime, another officer, Officer Pistor, saw what he believed to be a bullet-proof vest underneath Thornton's t-shirt. Thornton agreed to allow the police to search the car and signed a written consent form. The form gave Officer Pistor consent to have the "AUTO & CONTENTS, BAGS" searched for "FIREARMS, AMMUNITION." Thornton and Gipson got out of the car and Officer Pistor started to search the car. Officer Pistor found crystal methamphetamine and a scale. Then he found a black wallet lying flat on the driver's seat. Officer Pistor opened the wallet and four identification cards belonging to other…

Blurring the Scope of an Interrogation

State v. Strong (ICA November 25, 2009)Background. Strong was arrested and taken to the Kalihi police station where he was advised of his constitutional rights using a standard police form. Officer McKee attempted to question Strong about a robbery on March 19, 2006. Strong stated that he understood his constitutional rights, but refused to give a statement. Officer McKee told Officer Kiyotoki about it.Officer Kiyotoki was the lead investigator for four incidents in which Strong was a suspect. Officer Kiyotoki had Strong fill out an understanding-and-waiver-of-rights form. Officer Kiyotoki wrote on the form that he was only going to discuss one of the offenses. Strong indicated that he understood his rights and agreed to talk about the first incident in February. However, during the course of the interrogation, Officer Kiyotoki and Strong talked about the other incidents. Strong was indicted of several counts ranging from theft in the third degree to robbery in the second deg…