Thursday, September 1, 2011

HSC: A Police Chase is one long Seizure

State v. Tominiko (HSC August 26, 2011)

Background. Robert Tominiko was charged with operating a vehicle while under the influence of an intoxicant (HRS § 291E-61) and driving without motor vehicle insurance. The complaint alleged that in the OUI took place on August 2, 2008 in Honolulu, but it did not allege that it took place on a public roadway. The other count alleged that the driving took place on the same day and in the same place, and that it did take place on a public street, road, or highway.

Tominiko did not object to the sufficiency of the complaint. The no-insurance count was dismissed. Tominiko, however, moved to suppress evidence on the grounds that the police officer did not have reasonable suspicion to detain him.

At the hearing on the motion, Officer Antwan Stuart testified he was on duty around midnight, when he was dispatched to investigate a report of a group of people arguing at an intersection in Kalihi. He approached a group of about 15 to 20 people at the intersection drinking beer and soda, and eating. People started to pick up their things and run or walk away when he arrived. Tominiko did not leave in a hurry.

Officer Stuart approached Tominiko as he walked to his car, and asked for his identification. He explained that he wanted to question Tominiko about whether a fight or argument did take place. Tominiko mumbled something, kept walking, got into his car, and tried to start it. Officer Stuart followed Tominko and ordered him out of the vehicle. Tominiko ignored him, started his car, and slowly drove away. He got about seven feet before traffic forced him to stop.

Officer Stuart approached Tominiko's vehicle and shined a flashlight into the car. He saw two empty 40-oz. of Olde English in the car. Officer Stuart ordered Tominiko to turn off his car and provide an ID. Tominko said he left his license at home, but he had a state identification card.

On cross-examination, Officer Stuart admitted that he could not determine if there had been an argument. No one was fighting when he arrived. And he could not remember if Tominiko was drinking beer. The district court denied the motion to suppress. Tominiko was found guilty. The ICA affirmed.

Sufficiency of the Charge. When there is no objection to the sufficiency of the pleading before the trial court, the appellate courts review the pleading under a liberal construction standard. State v. Motta, 66 Haw. 89, 90, 657 P.2d 1019, 1019 (1983). The court "will not reverse a conviction based upon a defective indictment unless the defendant can show prejudice or that the indictment cannot within reason be construed to charge a crime." Id. Under this standard, a single count "can be reasonably construed to charge a crime . . . by [an] examination of the charge as a whole." State v. Elliot, 77 Hawai'i 309, 312, 884 P.2d 372, 375 (1994).

No Objection, No Allegation of Public Street or Highway, No Problem. Tominiko argued for the first time on appeal that the OUI count did not allege that it took place on a public street or highway, and, thus, it was defective. State v. Wheeler, 121 Hawai'i 383, 219 P.3d 1170 (2009). The HSC, however, noted that unlike Wheeler, there was no objection raised below and under the liberal construction approach, the court examined the charge as a whole and the two counts can be read together. Both counts relate to the driving a motor vehicle on August 2 in Honolulu. The HSC reasonably inferred that they refer to the same incident and thus, the OUI charge infers that it took place on a public street or highway.

Dismissal Doesn't Matter. The HSC noted that the dismissal of the no-insurance count, which included the crucial public-highway language, was irrelevant in examining the sufficiency of the pleading. First, this is still the liberal construction approach and the HSC is afforded wide latitude in construing the complaint. Secondly, when liberally construed, Tominiko was afforded notice that he was being charged with conduct taking place on a public highway. This was enough for the majority on the HSC.

Seizure Arose When Police Ordered Defendant out of the car. The state and federal constitutions confer a right to be free from unreasonable searches and seizures. Haw. Const. Art. I, Sec. 7; U.S. Const. Am. IV. Under the Hawai'i Constitution, a "person is seized if, given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave." State v. Kearns, 75 Haw. 558, 566, 867 P.2d 903, 907 (1994). Here, the HSC, held that Tominiko was seized when the police officer commanded him to get out of his car. No reasonable person, according to the HSC, would have felt free to leave when the officer ordered Tominiko to get out of his car.

. . . And he had no Reasonable Suspicion to do so. "[T]he police may temporarily detain an individual if they have a reasonable suspicion based on specific and articulable facts that criminal activity is afoot." Id. at 569, 867 P.2d at 908. "The ultimate test in these situations must be whether from the facts, measured by an objective standard, a man of reasonable caution would be warranted in believing that criminal activity was afoot and that the action taken was appropriate." State v. Melear, 63 Haw. 488, 493, 460 P.2d 619, 624 (1981). Whether a police officer had reasonable suspicion to stop someone is based on a totality of the circumstances. State v. Spillner, 116 Hawai'i 351, 357, 173 P.3d 498, 504 (2007).

Reasonable Suspicion is for one, not all. According ot the HSC, the police did not have evidence that Tominiko--as opposed to others in his group--had committed or was about to commit a crime. See, e.g., Chandler v. Miller, 520 U.S. 305, 313 (1997) (reasonable suspicion must be an "individualized suspicion of wrongdoing."). Officer Stuart might have seen some people with beers, but he did not see Tominiko. He also didn't see anyone fighting or making unreasonable noises. Moreover, the anonymous call that a group of people were arguing did not confer reasonable suspicion to stop Tominiko. A stop based on an informant "may . . . be predicated upon an informer's word, provided [that] the information carries enough indicial of reliability." State v. Temple, 65 Haw. 261, 270, 650 P.2d 1358, 1364 (1982). According to the HSC, the call was not backed by Officer Stuart's observations. There was nothing the officer saw that suggested Tominiko had been fighting or arguing.

Walk, Don't Run. The HSC also noted that Tominiko's walk to his car was not reasonable suspicion of any criminal activity. "[T]he mere act of avoiding confrontation does not create an articulable suspicion." State v. Heapy, 113 Hawai'i 283, 294, 151 P.3d 764, 775 (2007). The HSC distinguished this case from Melear, where the defendant's flight from the police arose to probable cause. The HSC noted that in Melear, the defendant ran away after the police asked him to stop and show identification. But "[i]n this case, Tominiko mumbled something, walked to his car, and attempted to start it. Officer Stuart testified that Tominiko was the only person in the crowd that did not leave in a hurry."

So if you were to run away from a police officer that wanted your identification, that's probable cause. But here, if you simply mumble something and walk away, it's not. Like swimming pool rules: walk, don't run.

Two Seizures or just one? The HSC next took on the issue of how many seizures actually took place. The ICA concluded that there were two: the first arose when Officer Stuart told Tominiko to stop (and he didn't). The second arose when Tominiko stopped his car and when Officer Stuart caught up to him. The HSC rejected the ICA's conclusion and held that there was a single, unconstitutional seizure.

Under the Hawai'i Constitution, "we must evaluate the totality of the circumstances and decide whether or not a reasonably prudent person would believe he [or she] was free to go." State v. Quino, 74 Haw. 161, 170, 840 P.2d 358, 362 (1992). The HSC, relying on cases from other jurisdictions, held that police pursuit of a person can constitute a single, ongoing seizure. Commonwealth v. Matos, 672 A.2d 769 (Pa. 1996); Commonwealth v. Thibeau, 429 N.E.2d 1009 (Mass 1981). According to the HSC, "[i]f a seizure occurs when police officers start to chase a person, a seizure continues when the person runs after disobeying a command to stop." That meant that Tominiko was seized when Officer Stuart told him to stop and he continued to be seized when he took off and when the officer caught up to him. And when Officer Stuart saw the bottles in the car, Officer Stuart in a position he would not have been had Tominiko been free to go. See State v. Poaipuni, 98 Hawai'i 387, 49 P.3d 353 (2002). Thus, any evidence recovered as a result of the seizure should have been suppressed.

The Prosecutor's Saving Grace. In a footnote, the HSC carefully pointed out that this situation would have been quite different if the officer would have observed the contraband regardless of the officer's attempt to seize the person. In other words, prosecutors would have to show that the contraband would have been seen even if the officer hadn't attempted to seize the person.

And even if it were two Seizures, it Still Stays out. The prosecution cannot "use . . . evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police." State v. Fukusaku, 85 Hawai'i 462, 475, 946 P.2d 32, 45 (1997). Even if there were two distinct seizures, the evidence is fruit of the poisonous tree. The ultimate question is "[d]isregarding the prior illegality, would the police nevertheless have discovered the evidence?" State v. Poaipuni, 98 Hawai'i at 393, 49 P.3d at 359. Here, the officer had no evidence justifying Tominiko's arrest until he caught up to him and saw the beer bottles. This evidence obtained after the initial stop is a fruit of the poisonous tree because it was discovered by exploiting Officer Stuart's prior illegal seizure.

Justice Acoba's Dissent and Concurrence. Justice Acoba agreed with the HSC on the suppression issue. However, he disagreed with the majority's analysis on the sufficiency of the pleadings. Justice Acoba pointed out that a deficient pleading is a jurisdictional defect. State v. Cummings, 101 Hawai'i 139, 143, 63 P.3d 1109, 1113 (2003). The charge does more than provide notice of an offense. It must also state an offense in order confer jurisdiction. State v. Jendrusch, 58 Haw. 279, 281, 567 P.2d 1242, 1244 (1977); State v. Israel, 78 Hawai'i 66, 73, 890 P.2d 303. 310 (1995) ("omission of an essential element of the crime charged is a defect in substance rather than form."). Justice Acoba wrote that even under the liberal construction approach, the pleading for the OUI is inadequate. The no-insurance count was dismissed and there was no offense adequately stated that conferred jurisdiction. Justice Acoba turned to cases from other jurisdictions for the notion that once a charge is dismissed, it cannot be used by the factfinder for any purpose. See United States v. Holmes, 672 F.Supp.2d 739 (E.D. Va. 2009); People v. Harvey, 602 P.2d 396 (Cal. 1979); State v. Johnson, 2011 WL 2685606 (Conn. July 19, 2011). So for Justice Acoba, once a charge is dismissed, it cannot be used to construe the other count.

Justice Acoba also took issue with the liberal construction approach based on a failure to object. He pointed out that jurisdiction can and should be raised at any time in the course of a case. State v. Elliot, 77 Hawai'i 309, 311, 884 P.2d 372, 374 (1994). Moreover, as an appellate court, the HSC must make a sua sponte inquiry as to whether it has jurisdiction. If there is a jurisdictional defect, the court must dismiss the case. State v. Graybeard, 93 Hawai'i 513, 516, 6 P.3d 385, 388 (App. 2000).

The Remedy? Tominiko II? Justice Acoba's remedy is telling. Because there was no jurisdiction, he would have remanded the case back to the district court with an order to dismiss without prejudice. That would have allowed them to bring the entire case back again. It would have meant the defense would have brought another motion to suppress and, if it was denied, it would have wound its way back up the HSC.

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