Sunday, April 17, 2011

Hawaii Constitution Applies in State Prosecutions Using Federally-Obtained Evidence

State v. Torres (HSC April 15, 2011)

Background. Gallegos was a cashier at the Pearl Harbor Naval Exchange. Gallegos received a canvas bag with $80,000 and went to the cashier's cage. Torres, a Pearl Harbor police officer, arrived even though he was not scheduled to work that day. Both Gallegos and Torres were seen leaving the base. The authorities were notified that Gallegos had abandoned his post and an all points bulletin to "detain and arrest" Torres and Gallegos was issued. Later that day, Pearl Harbor police saw Torres sitting in a line of cars. Torres was taken out of the line. When Torres rolled down his window to shake the officer's hand, the officer reached into Torres' vehicle and turned off the ignition. After a brief struggle, Torres complied, got out of the vehicle, and got arrested. Another officer moved the car and pursuant to base procedures, checked the car for flammables. When he opened the glove box, he found a revolver.

Two Prosecutions by two Governments. The officers prepared an affidavit in order to search Torres' car. They searched the car and found a cashier's bag with around $78,000, Gallegos' wallet, his driver's license, and other identifying papers. The gun they found had two bullets in it with three spent ones. Gallegos was never seen again. The federal government prosecuted Torres for theft and possession of a loaded firearm. He pleaded out and was sentenced to two years imprisonment.

Thirteen years later, he was charged by the State of Hawai'i for the murder of Gallegos and possession of a loaded firearm during the commission of a felony. Torres filed a motion to suppress the evidence collected from his vehicle based on both the state and federal constitutions. The motion was denied. Torres was found guilty as charged. He appealed.

The ICA vacated and remanded for new trial on the grounds that there was improper testimony. It affirmed the circuit court's denial of the motion to suppress. Torres petitioned for certiorari. The HSC reviewed only one portion of the ICA's opinion: whether federally-obtained evidence could be used in a state prosecution.

Extending Bridges. In determining whether evidence obtained in one state must be suppressed in a criminal prosecution in Hawai'i, the court must first identify "the principles to be served by the exclusionary rule, and then evaluate[] how the principles would be served by exclusion." State v. Bridges, 83 Hawai'i 187, 195, 925 P.2d 357, 365 (1996). The HSC was careful to note that the issue in Bridges addressed evidence obtained in another state--California--not evidence obtained by the federal government. Nonetheless, the HSC extended Bridges to evidence obtained by the feds.

Many Bridges to Cross. State courts around the country have addressed the issue of whether evidence obtained by federal law enforcement officers may be used in state prosecutions differently. Some states have held that evidence obtained by federal agents lawfully under federal authority is admissible in a state prosecution. Pena v. State, 62 S.W.3d 745, 754 (Tex. App. 2001); State v. Mollica, 554 A.2d 1315, 1325 (N.J. 1989). Other states have adopted the "exclusionary rule" analysis. State v. Davis, 834 P.2d 1008, 1012 (Ore. 1992); State v. Cardenas-Alvarez, 25 P.3d 225, 232 (N.M. 2001). Under that approach, the court must first identify "the principles to be served by the exclusionary rule, and then evaluate[] how the principles would be served by exclusion." State v. Bridges, 83 Hawai'i 187, 195, 925 P.2d 357, 365 (1996). The HSC agreed with the ICA's analysis that the approach outlined in Bridges applied to federally-obtained evidence. However, the HSC disagreed with the application of Bridges and the Bridges court's application of, well, Bridges.

Keeps the Standard, Overrules the Application in Bridges. There are three purposes underlying the exclusionary rule in Hawai'i: (1) judicial integrity, (2) individual privacy, and (3) deterrence. Id. The "judicial integrity" principle, according to the HSC, has been misapplied by the ICA and the Bridges court itself. According to the HSC, the Bridges court considered only the jurisdiction where the evidence was obtained, which is not a true application of the analysis, but rather a conflicts-of-law approach. And so the HSC overruled Bridges in its "purported" application of the exclusionary rule analysis. It did, however, preserve the actual standard.

Judicial Integrity to Hawai'i Courts, not Foreign ones. "The judicial integrity purpose of the exclusionary rule is essentially that the courts should not place their imprimatur on evidence that was illegally obtained by allowing it to be admitted into evidence in a criminal prosecution." Id. at 196, 925 P.2d at 366. The HSC re-examined the Bridges analysis and concluded that when courts of other jurisdictions allow evidence to be admitted that would be suppressed in Hawai'i, "our courts would necessarily be placing their imprimatur of approval on evidence that would otherwise be deemed illegal, thus compromising the integrity of our courts." Thus, the judicial integrity of the Hawai'i courts must be preserved when examining the first principle of the Hawai'i exclusionary rule.

Individual Privacy must be Considered. Unlike the federal exclusionary rule, "Hawai'i's exclusionary rule serves not only to deter illegal police conduct, but to protect the privacy rights of our citizens." State v. Kahoonei, 83 Hawai'i 124, 131, 925 P.2d 294, 301 (1996). Given the Hawai'i constitution's express protection of privacy rights, the HSC noted that it cannot apply the law of jurisdictions that disregard individual privacy rights. See State v. Snyder, 967 P.2d 843 (N.M. Ct. App. 1998).

And Finally, Deterrence to Hawai'i law Enforcement. As for the final purpose--deterrence--the HSC rejected the ICA's analysis. Deterrence means "the expectation that after evidence is suppressed based on particular police conduct[,] . . . in the future, police officers will refrain from that type of conduct." Bridges, 83 Hawai'i at 199, 925 P.2d at 369. The HSC rejected the ICA's conclusion that because no state law enforcement officers were involved in the obtaining of the evidence against Torres, there was no deterrent effect on the federal officers. The HSC, however, concluded that the application of the Hawai'i exclusionary rule would deter state and federal law enforcement from evading state law in future cases.

Other Considerations. The HSC pointed to other considerations. Allowing evidence that would not be admitted at trial simply because it was obtained in a different jurisdiction would create a disparity in prosecutions. Defendants in state courts, according to the HSC, "should be able to avail himself or herself of the protections afforded by the Hawai'i Constitution."

The Bottom line: the State Constitution Applies to All Evidence Proffered in State Prosecutions--no Matter where it was Obtained. Given these principles underlying the exclusionary rule, the HSC held that "where evidence sought to be admitted in state court is the product of acts that occurred on federal property or in another state, by Hawai'i law enforcement officers or by officers of another jurisdiction, such evidence can only be admitted in a state prosecution if obtained in a manner consistent with the Hawai'i Constitution and applicable case law."

Under the Hawai'i Constitution, it's STILL Admissible. The HSC examined whether the searches were valid under the state constitution even if they were valid under the federal one. Under the Hawai'i Constitution, consent is an exception to the warrant requirement. State v. Hanson, 97 Hawai'i 71, 76, 34 P.3d 1, 6 (2001). "Consent may . . . be implied from an individual's words, gestures, or conduct" and "implied consent to an airport security search may be imputed from posted notices" and "the nature of airport security measures." Id. at 75, 34 P.3d at 5.

Like the airport in Hanson, the Pearl Harbor navy base had a big sign at the entry stating that entry into the base "Constitutes Consent To Search Personnel and Property[.]" Torres entered the base and did not attempt to leave the base until the officers attempted to search his vehicle. The HSC held that the act of driving onto the base constituted a consent to search.

If Certain acts Constitute an Implied Consent to Search, can Other acts Constitute Rescission or Limitation of the Consent? Here, the HSC adopted federal precedents and held that when there is a posted notice that a certain act constitutes a consent to search, there is implied consent to search. Here, Torres engaged in the act constituting consent, but tried to leave the base when the actual search began. The HSC never addressed the issue of limiting the scope of an implied consent. "When an individual gives a general statement of consent without express limitations, the scope of a permissible search is not limitless. Rather it is constrained by the bounds of reasonableness: what a police officer could reasonably interpret the consent to encompass." State v. Thornton, 121 Hawai'i 533, 539, 221 P.3d 511, 517 (App. 2009) (quoting United States v. Strickland, 902 F.2d 937, 941 (11th Cir. 1990)). So if consent can come from acts and gesticulations, can the limitation of a consent also be based on acts and gesticulations? If so, wouldn't the act of struggling with the officer and trying to get out of the base be a straight-up rescission of the implied consent? Can a person take it back? Perhaps these issues will be resolved at another time.

Justice Nakayama's Dissent and Concurrence. Justice Nakayama wrote that Hawai'i law should not apply to the admissibility of the evidence in this case and would apply Bridges without overruling it. Under the judicial integrity prong, Justice Nakayama agreed with the Bridges court that courts need only examine whether the law of the situs jurisdiction was violated before admitting the evidence in Hawai'i. As for the second prong--examination of privacy rights--Justice Nakayama again would turn to the law of the situs jurisdiction. Here, Justice Nakayama pointed out that the evidence was seized by federal agents on federal property and the Hawai'i Constitution had no place in the analysis. Extending the protections of the Hawai'i Constitution into these federal waters, believed Justice Nakayama, was unreasonable. Finally, Justice Nakayama agreed with Bridges and would have examined only the deterrent effect suppressing this evidence would have on federal law enforcement officers, which it would not.

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