Tuesday, October 18, 2016

It’s not a Search when you Invite the Cops into your Garage

State v. Phillips (HSC September 30, 2016)
Background. Lincoln Phillips was convicted of attempted murder in the second degree. Phillips called the police to his home early one morning and reported that he came home to find his wife suffering from injuries and trauma to her head. Phillips told the police that he did not know the identity of the person who did it. Firefighters and police found Phillips frantic and sweating. He was pacing inside and outside the house by the driveway. As the police investigated, they discovered a hammer on top of a cooler in the garage. The hammer might have had a spot of blood on it. At one point an officer blew his nose and threw a napkin away in the trashcan within Phillips’ home. He opened the trashcan and saw clothes rolled up in it. He did nothing and covered it back up. Phillips was taken to the station to give a statement to a detective. Police officers later obtained a search warrant and searched the home and Phillips’ car. They took the hammer and went into the trashcan and removed the clothes. Phillips moved to suppress the evidence seized. The motion was denied, the evidence was used against Phillips, and he was convicted. The court sentenced Phillips to life imprisonment with the possibility of parole. Phillips appealed. The ICA vacated the judgment and remanded for a new trial, but the HSC took certiorari to set the record straight on the plain view doctrine.

The Law of Search and Seizure. The Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Similarly, Article I, Section 7 in the Hawaii Constitution establishes that “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated.” Warrantless searches and seizures are “presumptively unreasonable unless there is both probable cause and a legally recognized exception to the warrant requirement.” State v. Bonnell, 75 Haw. 124, 137, 856 P.2d 1265, 1273 (1993).

But What is a “Search” and “Seizure”? The HSC first had to examine if the police engaged in a warrantless search when while they were inside Phillips’ home responding to his 911 call. According to the HSC, two tests have been used to determine when police entry constitutes a “search.” First, there’s the famous test from Katz v. United States, 389 U.S. 347, 360 (1967): government intrusion into areas, objects, or activities in which the individual has exhibited “a reasonable expectation of privacy” is a search. A person’s expectation of privacy is “reasonable” when (1) the person showed an actual expectation of privacy, and (2) it is an expectation that society “is prepared to recognize as reasonable.” Id. at 361. See also State v. Stachler, 58 Haw. 412, 416, 570 P.2d 1323, 1326 (1977).

The other test comes from two recent cases of the Supreme Court: Florida v. Jardines, 133 S.Ct. 1409 (2013) and United States v. Jones, 132 S.Ct. 945 (2012). The Jones-Jardines test determines a search not by a person’s expectation of privacy, but by a more a property-based understanding of space. The government cannot trespass or physically intrude upon a constitutionally-protected space. Jones, 132 S.Ct. at 950-951; Jardines, 132 S.Ct. at 1414-17. Under this test, the court will find a search when there is (1) a trespass or physical intrusion to persons, houses, papers, or effects; and (2) the government intrusion was made for the purpose of gathering evidence.
In a footnote, the HSC observed that both tests are at work. So if there is a search under Katz, it would be unnecessary to determine if there was a search under Jones-Jardines and vice versa. See Jones, 132 S.Ct. at 953.

Katz says no Search, but Jones-Jardines Indicate Search. First, the HSC examined if there had been a search under Katz. There was none. Phillips called 911 and essentially invited the police into the garage and made his home the center of police activity. There was no expectation of privacy for him.

The Hammer was Properly Seized Under the Plain View Doctrine. Having held that the police intrusion into the garage was not a search under Katz, the HSC examined if the hammer was properly seized. So even if the police were entitled to be there without a warrant, they could not seize the hammer unless later authorized by a warrant or unless there is an exception to the warrant. See Soldal v. Cook Cty., 506 U.S. 56, 68 (1992). Plain view is an exception to the warrant requirement that allows the police to take evidence. State v. Davenport, 55 Haw. 90, 100-101, 516 P.2d 65, 72 (1973). Evidence may be seized pursuant to the plain view doctrine when the prosecution can show (1) prior justification for the government intrusion; (2) inadvertent discovery; and (3) probable cause to believe the item is evidence of a crime or contraband. State v. Meyer, 78 Hawaii 308, 314, 893 P.3d 159, 165 (1995). The HSC held that all three factors were met and the hammer was not unconstitutionally seized.

But the Clothes? The circuit court denied the motion on the grounds that even though the officer who blew his nose saw the clothes and even though that was an impermissible search so to speak, it would have been inevitably discovered due to the warrant that was later obtained. The HSC agreed.

The Inevitable Discovery Doctrine. Evidence obtained in violation of Article I, Section 7 of the Hawaii Constitution may be admitted as evidence when the prosecution can establish clear and convincing evidence that it would have been inevitably found by lawful means. State v. Lopez, 78 Hawaii 433, 451, 896 P.2d 889, 907 (1995). Here, the clothes were obtained pursuant to the warrant. After reviewing the affidavit in search of the warrant and even if the statements about seeing the clothes before search had been redacted, there was sufficient probable cause to issue the warrant in the first place. The HSC next examined if the clothing would have been found pursuant to the warrant. It did. The warrant—like most search warrants—authorized the police to look within containers. Moreover, there was proof presented that the area was sealed off and guarded preventing folks from moving or removing things from the home.


Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed with the majority (Justices Pollack and McKenna and Judge Nishimura) that the hammer and clothes were admissible. Her disagreement stems from the analysis as to what constitutes a search. For Justice Nakayama, when determining a search or not, it is not enough for a person to invite the police into the house. The concern for her was that by holding as a matter of law that the invitation removed any expectation of privacy and therefore was not a search requiring a warrant or an exception to the warrant requirement, “the defendant has an affirmative obligation to establish that he or she did not consent to a search of a constitutionally protected area.” The Chief Justice joined.

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