Wednesday, February 8, 2012

Judicial Errors in Search Warrants do not Invalidate the Search Itself

State v. McKnight (ICA January 31, 2012)

Background. Agent Vincente Domingo went onto an online chatroom and pretended to be a 15-year-old-girl named Chyla. Domingo started chatting with Robert McKnight. Domingo said he lived in Honolulu. McKnight was on Maui. They started chatting about sex and various acts McKnight would be willing to perform. At some point, McKnight volunteered to book tickets from Maui to Honolulu online, but those plans were never made. Eventually, they arranged to meet at the Kahului Airport. McKnight drove there and was arrested.

At the police station interrogation room, McKnight requested to have an attorney before speaking to the law enforcement officers. The officers left the room and then re-entered. McKnight asked if he could call his mother. They refused. McKnight the asked what was going to happen next. The agents told him they'd apply for a search warrant and then search his home. McKnight said he didn't realize the severity of the offense and agreed to give a statement. McKnight was against advised of his constitutional rights and then provided an incriminating statement.

The agents then prepared a search warrant on his residence. The warrant was presented on July 6, 2006. The district court judge granted, wrote that the warrant must be "executed on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]" The date written on the warrant signifying the day the judge signed it, however, was June 6, 2006. The police executed the search warrant on July 6, and seized McKnight's computer, where they found graphic files of suspected child pornography.

McKnight was indicted with one count of electronic enticement in the first degree and one count of promoting child abuse in first degree. The circuit court granted McKnight's motion to suppress his statement and to suppress any evidence gathered pursuant to the search warrant. At trial, the prosecution wanted to show webcam footage of McKnight naked and masturbating while he was chatting with Domingo. McKnight conceded that the chat and acts were relevant, but wanted to stipulate to a description rather than a graphic video image. The circuit court allowed the prosecution to present the video. McKnight was found guilty of electronic enticement. The prosecution appealed the suppression order; McKnight appealed from the judgment.

A (Graphic) Picture is Worth a Thousand Words. The ICA rejected McKnight's argument that the images of McKnight were violation of HRE Rule 403. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" HRE Rule 403. The ICA held that images of McKnight showing himself was extremely probative of his specific intent to commit the offense of electronic enticement. McKnight conceded that it was probative, but instead argued that he was unfairly prejudiced because alternatives to the footage were possible. The ICA disagreed. "A picture, or in this case the videos, are worth a thousand words." Moreover, "[p]robative evidence always 'prejudices' the party against whom it is offered since it tends to prove the case against that person." State v. Klafta, 73 Haw. 109, 115, 831 P.2d 512, 516 (1992). HRE Rule 403, however, prohibits the danger of "unfair prejudice," that is, "an undue tendency to suggestion decision on an improper basis, commonly, though not necessarily, an emotional one." HRE Rule 403 cmnt. This was not, according to the ICA, an improper basis. The ICA also pointed out that during jury selection, the circuit court made it clear that graphic evidence was in this trial, and none of the jurors said that they would be uncomfortable or prevent them from being fair or impartial.

Electronic Enticement Statute Would lead to Absurd Result. "Any person who, using a computer or any other electronic device . . . communicates . . . with another person who represents that person to be under the age of eighteen years; and . . . agrees to meet . . . with another person who represents that person to be a minor . . . and [i]ntentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time" commits the offense of electronic enticement. HRS § 707-756(1).

The circuit court's instruction did not require proof that McKnight used a computer or electronic device to travel to the agreed-upon meeting place. McKnight argued that the statute requires proof that he used a computer or other electronic device to communicate with another person, agree to meet that person, and then travel to that place at that time.

Looking Beyond Plain Meaning. The court's "foremost obligation is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language contained in the statutes themselves." State v. Cornelio, 84 Hawai'i 476, 484, 935 P.2d 1021, 1029 (1997). However, statutory language must be read "in the context of the entire statute and construe[d] . . . in a manner consistent with its purpose." Id. Furthermore, "the legislature is presumed not to intend an absurd result, and legislation will not be construed to avoid, if possible, inconsistency, contradiction, and illogicality." Id.

The ICA, relying on legislative history behind HRS § 707-756, rejected McKnight's plain-language argument. The committee reports clearly contemplated a situation in which a person agrees to meet with a person posing as a child and that person gets arrested upon arrival at the meeting place. According to the ICA, McKnight's interpretation would limit prosecutions to "atypical situations in which a computer was used by the defendant to travel to the meeting place." This situation, according to the ICA, would be absurd and contrary to the legislative intent.

The Warrant may have been Defective, but it Wasn't the Officer's Fault. The ICA turned to the suppression order. The search warrant was prepared on July 6--the day McKnight was arrested. The warrant, however, stated that it was issued on June 6. The circuit court found that the warrant was facially defective and pursuant to State v. Endo, 83 Hawai'i 87, 924 P.2d 581 (App. 1996), it could not be relied upon by the executing officers to enter the premises. In Endo, the ICA held that Hawai'i's constitution requires suppression of evidence obtained from a defective search warrant:

Balancing the uniqueness of Hawai'i's Constitution, the specificity requirements imposed by HRPP Rule 41(c), the desire to motivate the officials who prepare, sign, and execute search warrants not to prepare, sign, and execute facially expired search warrants, and the desire and ability to avid searches pursuant to facially expired search warrants, against the State's desire to have the judiciary validate searches pursuant to search warrants that are facially expired when the searches are made because the officers who applied for them, the judges who signed them, and/or the officers who executed them made a mistake, we conclude that the Hawai'i Constitution does not permit the validation of searches pursuant to search warrants that are facially expired when the searches are made.

Id. at 93-94, 924 P.2d at 587-88. Here, the ICA overruled Endo in part. The ICA explained that Endo is based on the principle in State v. Lopez, 78 Hawai'i 433, 896 P.2d 889 (1995), which held that under the Hawai'i constitution, the exclusionary rule is broader than the federal protection. "[T]he Hawai'i exclusionary rules serves the valuable purpose of deterring governmental officials from circumventing the protections afforded by the Hawai'i Constitution, we now pronounce that an equally valuable purpose of the exclusionary rule . . . is to protect the privacy rights of our citizens." Id. at 446, 896 P.2d at 902.

The ICA held that in this case, the judge made the clerical error, not the police. Thus, according to the ICA, there was no governmental misconduct to deter. Suppressing the evidence obtained pursuant to this defective search warrant, reasoned the ICA, served did not deter law enforcement or governmental misconduct and it did not protect the privacy rights of the people. The ICA overruled Endo "to the extent that it is inconsistent with our analysis in this case."

Even After Invoking Right to Counsel, Asking what Happens Next Allowed Police to Re-visit Waiver Issues and Resume Interrogation. The ICA held that the circuit court erred in concluding that the agents should not have reinitiated the interrogation once McKnight invoked his right to counsel. The accused, once invoking the right to counsel, "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The ICA noted that the Edwards case was cited by the HSC in State v. Hendeson, 80 Hawai'i 439, 441-42, 911 P.2d 74, 76-77 (1996), and State v. Hoey, 77 Hawai'i 17, 36, 881 P.2d 504, 523 (1994). According to the ICA, it is undisputed that McKnight reinitiated "further communication, exchanges or conversations" when asked what was going to happen next. The ICA compared these facts to the situation in Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), when the accused asked the police what was "going to happen to me now[.]" That question, held the ICA, allowed the agents to revisit the issue of waiver and ultimately obtain an incriminating statement from McKnight.