Thursday, August 18, 2016

Traffic Stops and Nothing More Does not Justify a Canine Screen

State v. Alvarez (HSC June 30, 2016)
Background. Elujino Alvarez was driving a vehicle and stopped by the police because the police saw that one of the passengers was not wearing a seatbelt. The officers recognized Alvarez from prior unrelated drug investigations and called another officer to come to the scene with his police dog to conduct a canine screening on the car. They waited for the dog and the dog alerted to the presence of narcotics. Alvarez was arrested. The police obtained a search warrant for the car and found methamphetamine and drug paraphernalia. Alvarez moved to suppress the evidence. The motion was denied. Alvarez entered a conditional plea allowing to appeal the denial of the motion. The ICA affirmed the denial. Alvarez applied for a writ of cert.

Traffic Stops, the Fourth Amendment, and You. “A stop of a vehicle for an investigatory purpose constitutes a seizure within the meaning of the constitutional protection against unreasonable searches and seizures.” State v. Estabillio, 121 Hawaii 261, 270, 218 P.3d 749, 758 (2009). A traffic stop is deemed “reasonable” when (1) the officer has reasonable suspicion to stop the vehicle and (2) the search that was “actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.” State v. Perez, 111 Hawaii 392, 397, 141 P.3d 1039, 1044 (2006).

The first part is not in dispute. Officers had reasonable suspicion to detain Alvarez’s car. On eof the passengers was unbuckled. A traffic violation gives rise to detain the vehicle. State v. Kaleohano, 99 Hawaii 370, 378, 56 P.3d 138, 146 (2002). The second part, however, is problematic for the police.

The scope of a traffic stop is “truly temporary” and must “last no longer than is necessary to effectuate the purpose of the detention.” Estabillio, 121 Hawaii 270, 218 P.3d at 758. Not only must be limited in time, but it must be limited in intensity. The search must be limited to that which is justified by the stop.

The Detention Lasted Longer in Scope and Intensity. The HSC agreed with Alvarez that the traffic stop was excessive. Alvarez was stopped because a passenger was seen without a seatbelt. The officers saw no drugs or related paraphernalia. There was nothing justifying them to get a canine screen of the vehicle for drugs. The fact that a confidential informant told the officers that Alvarez was dealing crystal methamphetamine five days before the stop is not enough. The HSC vacated the conviction and remanded for further proceedings.


When the Tip CAN Justify the Search. The HSC expressly noted that he anonymous tip about drug dealing was not enough to keep Alvarez there and subject him and his car to a canine screen. However, there are circumstances when it can. According to the HSC, when the informant is known to law enforcement, courts can then determine if that person had reliable information in the past, or if there is an adequate factual basis that the person is a reliable informant. State v. Ward, 62 Haw. 459, 461, 617 P.2d 565, 567 (1980); State v. Joao, 55 Haw. 601, 602-604, 525 P.2d 580, 582-583 (1974).

Sunday, August 14, 2016

Juveniles Cannot be Sentenced to Life Without Parole (but may be Sentenced to Life With)

State v. Tran (ICA July 14, 2016)
Background. Dat Minh Tran was seventeen years old in a car with his friends when they were involved in a chase through Waikiki with a red truck. Tran stood up from the truck and fired two shots at the red truck while standing in his car through the sunroof. He shot one of the people in the truck, but that person did not die. The second shot hit the truck’s radiator. The family court waived jurisdiction and he was tried as an adult for attempted murder in the first degree. He was found guilty. The circuit court sentenced Tran to life imprisonment without the possibility of parole. That was in 1997.

In the wake of three cases from the United States Supreme Court related to the sentencing of juveniles, Tran filed a petition to set aside his sentence. The petition was granted. After a hearing on the petition, the circuit court sentenced Tran to life with the possibility of parole. Tran appealed. Later, the Legislature amended the murder sentencing statute and prohibited courts from sentencing defendants to life without parole when the defendant was a juvenile at the time of the offense.

The Juvenile Sentencing “Trilogy” from SCOTUS. The ICA examined the three SCOTUS cases that set the backdrop for Tran’s petition and appeal. First, there’s Roper v. Simmons, 543 U.S. 551, 578 (2005), in which the high court held that sentencing offenders to death who were under the age of eighteen at the time of the offense was in violation of the Eighth Amendment’s prohibition against “cruel and unusual” punishment. The court held that unlike adults, juvenile offenders “cannot with reliability be classified among the worst offenders” and there was no constitutional justification for the death penalty in juvenile cases. Id. at 569-573. The SCOTUS looked into the matter further in Graham v. Florida, 560 U.S. 48 (2010). The court held that imposing a sentence of life without parole on juvenile offenders who did not commit homicide violated the Eighth Amendment. Id. at 69-70. Finally, the other shoe dropped in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), when the court extended the Graham prohibition and held that juveniles who did commit homicide cannot be sentenced to life without parole.

The Severability Test . . . The problem for the circuit court was how to sentence Tran after the SCOTUS declared sentences like his unconstitutional, but before the Legislature amended the statute. Tran argued that the entire statutory scheme is unconstitutional. However, there is a presumption that an entire statutory scheme is not constitutional and that only the offending portion is invalid. Ruggles v. Yagong, 135 Hawaii 411, 431, 353 P.3d 953, 973 (2015). This presumption can be overcome when something in the statute or history makes “it evident that [the Legislature], faced with the limitations imposed by the Constitution, would have preferred no statute at all to a statute with the invalid part excised.” Hamad v. Gates, 732 F.3d 990, 1001 (9th Cir. 2013). Parts that remain in the statute are (1) constitutionally valid; (2) capable of functioning independently, and (3) consistent with the Legislature’s basic objectives in enacting the statute. Id.


The Entire Sentencing Scheme is NOT Unconstitutional. The ICA held that the presumption of validity prevailed. The unconstitutional portion had been properly excised and Tran’s sentence was consistent with the new holdings of the SCOTUS. Moreover, the Legislature’s amendment shows precisely that it intended to preserve the rest of the statutory scheme.

When Friendly Officer Chit-Chat Becomes Interrogation

State v. Kazanas (HSC June 21, 2016)
Background. Kazanas was indicted with criminal property damage in the first degree and unauthorized entry into a motor vehicle in the first degree. During the early morning hours of November 1, 2011, Kazanas was taken to the hospital to treat injuries sustained to his hand. An officer accompanied him. The officer informed him that he was under arrest for UEMV “multiple times” but never apprised him of his constitutional right to remain silent, his right to attorney, and the admonition that anything he said could be used against him in a court of law. She did, however, instruct Kazanas not to talk about the case or “say anything about what he had been arrested for.”

At the hospital, Kazanas was making rude comments and other patients could hear him. The hospital staff moved him away from the other patients. A police officer sat about six feet away from him. Wanting to keep his mind off of other things and wanting to calm him down, the officer asked Kazanas if he enjoyed Halloween night and what costumes he saw. Kazanas made two non-responsive statements. First he said “I wouldn’t have to punch people if they didn’t upset me.” He also told her that “If you didn’t catch me now for this, you would’ve caught me later for something else.”

Before trial, the parties litigated the voluntariness of the statements. The circuit court concluded both were voluntary and that Miranda warnings were unnecessary, but that the second statement was unduly prejudicial and would not be admissible.

At trial a different officer testified that on Halloween night he was on patrol in Waikiki when he saw Kazanas. He recognized him because years before, back in 2005, he was involved in a case in which Kazanas had fallen from a nine-story building and lived. The officer would never forget that. The officer saw Kazanas hit a window to a car stuck in traffic with something in his hand. The glass shattered. He ran to the driver’s side window and started punching the driver.

The complainant testified that he was sitting in his car when a guy came up to him, hit his car, broke the windshield, and hit him in the face. He was not certain who the assailant was and on cross-examination admitted that he didn’t believe that Kazanas was the person who attacked him. The officer from the hospital testified too.

The defense called two of Kazanas’s friends who testified that he was not the guy who broke the windshield and assaulted the driver. Then Kazanas testified. He testified that he was not physically capable of such an attack because of his nine-story fall back in 2005. He denied being the offender.

After he testified, the prosecution requested that it present evidence of prior bad acts of physical abuse and assault that occurred after the 2005 fall. The circuit court granted the request over objection. Kazanas was acquitted of the property damage count but convicted of UEMV. He was placed on probation with 90 days jail. He appealed and the ICA affirmed.

Fifty Years of Case Law: Custodial Interrogation Requires Miranda Warnings. “No person shall . . . be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. See also U. S. Const. Am. V. These protections require that “before the State may use statements stemming from custodial interrogation, it must first demonstrate the use of procedural safeguards effective to secure the privilege against self-incrimination.” State v. Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-284 (1985). The “procedural safeguards” including warning the accused about the right to remain silent, that anything said can be used against him or her in a court of law, the right to an attorney, and that if no attorney can be afforded, an attorney would be appointed for him or her. State v. Ketchum, 97 Hawaii 107, 116, 34 P.3d 1006, 1015, (2001). See also Miranda v. Arizona, 384 U.S. 436 (1966). If the statement was made in violation of this rule, it cannot be used at trial—neither as direct evidence or even impeachment evidence. State v. Hoey, 77 Hawaii 17, 33, 881 P.2d 504, 520 (1994).

There is no question in this case that Kazanas was in custody while at the hospital under guard from the officer. The issue was whether the officer engaged in an interrogation.

The Conversation in the Hospital was an “Interrogation.” An “interrogation” for Miranda purposes arises when police know or should have known that their words or conduct were reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 301 (1980). This standard was adopted for the Hawaii Constitution in State v. Paahana, 66 Haw. 499, 502-503, 666 P.2d 592, 595-596 (1983).

The HSC majority held that the officer in the hospital “interrogated” Kazanas. The officer may not have asked if he punched the guy in the car and broke the windshield, but she did ask him how his Halloween went. The officer knew exactly how Kazanas’ Halloween went: he was arrested and transported to the hospital under police escort. According to the majority, it was “reasonably likely” that Kazanas would elicit an incriminating response. The majority pointed out that even if the officer just wanted to calm Kazanas down and had no intention of getting a confession, “her role as a police officer rendered her part of a system that was adversarial to Kazanas at that moment, and engaging in a conversation at that point could not be ‘solely in his interest.’” Because there was no Miranda warning before the small talk, it is inadmissible at trial and the trial court and the ICA erred in allowing it to be used by the prosecution.

Prior Bad Acts Properly Admitted Because the Defendant Opened the Door. The HSC examined Kazanas’ challenge to the use of his prior bad acts. “When evidence of other crimes, wrongs, and acts [under HRE Rule 404(b)] is offered by the prosecution, the problem for the trial court is one of classifying and then balancing, if necessary . . . the prejudicial impact of the evidence with its probative worth.” State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041 (1988).

Here are the factors used by the trial court when balancing:

[T]he strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility.

Id.

The HSC held that the circuit court did not abuse its discretion in allowing evidence of the 2007 assault. The 2007 assault included facts that Kazanas ran up to people, punched them in the face, ran from the police, and jumped a fence to escape—acts that Kazanas testified that he could not do because of the fall in 2005. Kazanas clearly opened the door here.

The other case, abuse of family or household member in 2007, involved striking a victim with a cane. This is very different from the running, punching, and jumping he claimed that he could not do. That evidence was not needed an abuse of discretion. Moreover, the HSC held that the fact that Kazanas struck a woman in the face with a cane “carried with it the potential to rouse the jury to overmastering hostility” against him.  Evidence of punches to an different assault in 2006 was also unnecessary since the first case—the 2007 assault—was already coming in.


Justice Nakayama’s Dissent. For Justice Nakayama, took issue with the majority’s articulation of the standard defining “interrogation” for Miranda. This was not simply an objective standard in assessing whether the officer’s conduct was reasonably likely to elicit an incriminating response. Justice Nakayama wrote that the trial court assesses whether “interrogation” takes place is based upon a totality of the circumstances. Under this totality-of-circumstances-test, the “ultimate question” is the reasonable-likelihood-of-an-incriminating-response question. This is not a matter of semantics. By focusing only on the latter part, the majority disregarded all of the surrounding circumstances, including whether the accused had had prior law-enforcement contacts, the time, length of questioning, nature of the questions, and other factors. On top of that, Justice Nakayama wrote that the officer’s conduct did not arise to an “interrogation” and would have affirmed the ICA. The Chief Justice joined.

Friday, August 12, 2016

The Intricacies of the Felon-In-Possession Statute

State v. Frazer (ICA May 13, 2016)
Background. Michael Frazer was indicted with one count of promoting a dangerous drug in the first degree and violation of a protective order. He pleaded guilty to both counts and moved for a conditional discharge pursuant to HRS § 712-1255. The circuit court granted the motion and placed him on probation for five years in count one and two years on count two.

Four years later, Frazer gets charged with one count of first-degree terroristic threatening with use of a dangerous weapon—a semi-automatic firearm and one count of possession of a firearm while “under indictment” for a felony pursuant to HRS § 134-7(b). Frazer moved to dismiss count two on the grounds that he was not “under indictment” and the circuit court agreed. In its order granting the motion, the circuit court concluded that a person who has been granted a conditional discharge is neither “under indictment” nor convicted. The circuit court limited the language of “under indictment” to pretrial status of the defendant. The circuit court also ruled that as an alternative dismissal was warranted under its inherent powers articulated in HRS § 603-21.9(6). The circuit court reasoned that there was no way the prosecution could prove that at the very least Frazer recklessly disregarded the risk that he was “under indictment.” The prosecution appealed.

“Under Indictment” Means On Probation. The ICA agreed with the prosecution that Frazer was “under indictment.” Here’s HRS § 134-7(b):

No person who is under indictment for, or has waived indictment for, or has been bound over to the circuit court for, or has been convicted in this State or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug shall own, possess, or control any firearm or ammunition therefor.

According to the ICA, the plain language of the statute prohibits possession of firearms to those who are “under indictment” of a felony—that is, those who have been charged, but not adjudicated of a felony. Not only was the language plain for the ICA, it also found supportive legislative history.

But What about Conditional Discharge? The ICA next examined the particular challenge of a person on probation by way of conditional discharge. Conditional discharge means that the defendant is found guilty and placed on probation, but can later seek expungement of the conviction once he or she has completed the terms of probation. HRS § 712-1255.

Normally, a Deferral or Conditional Discharge is not a “Conviction.” According to the ICA, Frazer was not charged with being a convicted felon in possession of a firearm, but only under indictment. However, the ICA reasoned that it would make no sense for a person to be “under indictment” and then later be found guilty pursuant to the conditional discharge statute or plead guilty pursuant to a deferral agreement and be out of the scope of the felon-in-possession statute. However, the Hawaii Supreme Court in State v. Ritte, 68 Haw. 253, 710 P.2d 1197 (1985), held that a deferral plea and sentence is not a “conviction” for purposes of HRS § 134-7(b). Thus, based on that logic, the ICA extended the exception to conditional discharges. A person sentenced to probation under the conditional discharge statute is not considered “convicted” for the felon-in-possession statute.

But What about Being “Under Indictment?” The ICA moved on to consider the other question: whether the same exception extends to those who were “under indictment.” The ICA held that the Ritte exception did not apply. According to the ICA, the fact that Frazer had been serving a conditional discharge sentence and was “under indictment” of a separate felony and that he was within the felon-in-possession scope. The ICA vacated the dismissal order and remanded for further proceedings.