HSC Badly Divided and Unanimous at the Same Time

State v. McKnight (HSC December 31, 2013)

Background. Robert McKnight was charged with electronic enticement and promoting child abuse in the third degree. McKnight communicated with agent Vincente Domingo with the Attorney General’s office on a chatroom. Domingo pretended to be a teenaged girl living on Oahu. Over several months, McKnight communicated with Domingo via chatrooms, cellular telephones, email, and telephone. The chats were intimate in nature and included discussions of sexual acts. At one point, they discussed meeting in person. McKnight agreed to purchase a ticket for Domingo from Oahu to Maui and he would pick “her” up at the airport. On the meeting day, McKnight went to the Kahului Airport where he was arrested by the police and special agents.

He was taken to the Wailuku Police Station and advised of his Miranda rights. McKnight said he wanted to talk to a lawyer. The agents left the room and conferred with another agent and wondered if they could go back in there and ask for his address and a description of his residence. The agents needed to get a search warrant for the house. They convinced themselves that it was permissible and went back inside the room with McKnight. McKnight asked what was going to happen next and Domingo told him that they were going to “do a search warrant” of his house. McKnight then said he changed his mind about giving a statement. They recorded the interrogation and throughout it, McKnight asked if he could call his mother. Domingo said he couldn’t promise anything. He continually asked if he could call his mother. Again, Domingo did not promise anything. He made an incriminating statement.

The agents then prepared a search warrant for the house and presented the affidavit and warrant to District Court Judge Simone Polak. Judge Polak approved the warrant and wrote in the wrong month on the date of issuance to read: “This warrant may be served and the search made on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]” The warrant stated that the date of issuance was June 6, 2006. The police searched anyway, confiscated a computer, and later found evidence underlying the promoting child abuse charge.

McKnight moved to suppress his statement and the evidence obtained at his house. The circuit court granted the motion and the prosecution moved to sever the promoting child abuse charge and take that up on appeal while it proceeded with the electronic enticement charge. At trial, the circuit court instructed the jury that the offense constituted five elements and it did not instruct the jury that it had to find beyond a reasonable doubt that McKnight used a computer or other electronic device to travel to the agreed-upon meeting place. McKnight was found guilty of the electronic enticement count. McKnight appealed. Both appeals were consolidated. The ICA affirmed the conviction, but vacated the suppression order. McKnight sought certiorari.

A Badly-Divided Court. The HSC divided this case into three distinct issues. What makes this case different is that for each section there are divergent majorities and dissenters.

No Evidence of Computer Use Required for Every Element of Electronic Enticement. McKnight argued that the circuit court did not properly instruct the jury about the elements of electronic enticement. Here’s how the statute is written:

Any person who, using a computer or other electronic device:

(a) Intentionally or knowingly communicates [with a minor or a person pretending to be a minor] and

(b) With the intent to promote or facilitate the commission of a felony . . . [t]hat is an offense defined in section 846E-1 . . . [a]grees to meet with the minor or [purported minor] and

(c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time; is guilty of electronic enticement[.]

HRS § 707-756. McKnight argued that the statute clearly and unambiguously requires proof that the person use a computer or other electronic device to “travel to the agreed upon meeting place at the agreed upon meeting time[.]” The HSC disagreed.

The Court’s “foremost obligation [in statutory interpretation] is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” State v. Kotis, 91 Hawaii 319, 327, 984 P.2d 78, 86 (1999). The plain language of the statute, however, “does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctionary review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.” Keliipuleole v. Wilson, 85 Hawaii 217, 221, 941 P.2d 300, 304 (1997).

According to the HSC, strictly interpreting the statute so that some form of computer usage is required to travel to the meeting place at the meeting time leads to an absurd result. The HSC went into the legislative history of the criminal statute and found committee reports detailing the kinds of factual scenarios that this statute was meant to criminalize. Those factual scenarios did not require computer usage to travel to the meeting place at the meeting time. Thus, the HSC held that even though the statute “appears to require that a defendant use a computer or other electronic device to travel . . ., a literal reading of this paragraph is absurd.” The HSC went even further and held that computer or electronic use is only required to acts of communication with the minor or purported minor. The other acts—agreement to meet and traveling to meet—do not require it. The HSC reasoned that if the legislature had intended to require a nexus of computer usage for the second element of electronic enticement, “it could have structured the second subsection more naturally[.]”

Chief Justice Recktenwald’s Concurrence and Dissent. The Chief Justice agreed in part, but also dissented here. He agreed that it is absurd to require a computer or other electronic device to travel to the meeting place. However, he disagreed that computer usage is not required for the second element—agreeing upon a meeting place. There is nothing absurd about requiring computer usage to set up a meeting place. After all, it is called electronic enticement. He also wrote that the majority’s reliance on legislative history is misplaced. “It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning.” State v. Richie, 88 Hawaii 19, 30, 960 P.2d 1227, 1238 (1998). For the Chief Justice, the circuit court erred in failing to instruct the jury that computer usage was required to set up the meeting place and time. That error was not harmless and a new trial was warranted. Judge Rom Trader joined.

Rejection of the Plain-Language Rule. This is certainly a new court when it comes to the plain language rule. For some time, especially during the later years under the Chief Justice Moon, the court had become more and more committed to a strict interpretation of statutes. If the language is plain and unambiguous, then so be it. That’s how it should be read. Now, it seems that this is not the case—at least not as much. Determining when the court will stick to the plain language or when it will depart and delve into legislative history to ascertain some alternative meaning remains anybody’s guess.

The Statement was Properly Suppressed. The HSC unanimously held that the statement was properly suppressed. When the accused invokes his or her right to counsel, all questioning in the custodial interrogation must cease “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 accused can also waive his rights by re-initiating communication with the police. Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983). Even then, the questioning can continue only if the accused knowingly, intelligently, and voluntarily waives his rights. State v. Hoey, 77 Hawaii 17, 34-36, 881 P.2d 504, 521-23 (1994).

Here, the HSC held that McKnight clearly and unequivocally invoked his right to counsel in the interrogation room and thus, the agents “were prohibited from further questioning McKnight until an attorney had been provided or McKnight voluntarily reinitiated communication.” Domingo respected that right at first, but he later went back into the room to “obtain information he hoped to use in a warrant application.” No attempt was made to find an attorney. When McKnight asked what was going to happen next, Domingo said they’d search his house with a warrant (even though they didn’t have one). Based on the totality of these circumstances, McKnight never reinitiated contact and his subsequent waiver of his Miranda rights was not voluntarily given. Moreover, Domingo’s conduct and comment about the search “were reasonably likely to elicit an incriminating response.” The statement was obtained in violation of his constitutional rights.

The Execution of the Search Warrant was Valid Despite the “Scrivener’s Error.” The Hawaii Constitution protects persons from unreasonable searches, seizures, and invasions of privacy. Haw. Const. Art. I, Sect. 7. A written search warrant must “command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property to be specified.” HRPP Rule 41(c). Here, the warrant commanded officers to search McKnight’s home not less than 10 days from the issuance of the search warrant. The issuance date was wrongly written. The HSC held that this was nothing more than a scrivener’s error and did not render the search invalid. The HSC relied on cases from a variety of other jurisdictions in support of this holding. State v. Dalton, 887 P.2d 379 (Or. Ct. App. 1997); Heard v. State, 612 S.W.2d 312 (Ark. 1981); State v. Shupper, 207 S.E.2d 799, 800-01 (S.C. 1974); State v. E.J.F., 999 So.2d 224, 231-32 (La. Ct. App. 2008); People v. Deveaux, 561 N.E.2d 1259, 1263-64 (Ill. App. Ct. 1990); State v. Steffes, 887 P.2d 1196 (Mont. 1994).

The HSC also looked at the underlying purpose of the exclusionary rule. The exclusion of evidence promotes three purposes: (1) judicial integrity; (2) the protection of individual privacy; and (3) deterrence of illegal police misconduct. State v. Torres, 125 Hawaii 382, 394, 262 P.3d 1006, 1018 (2011). According to the HSC, the search of an otherwise valid warrant did not offend these purposes. Thus, the erroneous issuance date did not make a difference in searching the home.

Justice Acoba’s Dissent. Justice Acoba wrote that the invalid issuance date rendered the search invalid. For Justice Acoba, this case radically departs from well-established judicial precedent and introduces a “good faith” exception to the warrant requirement. Our constitution affords greater protections than the federal constitution’s Fourth Amendment. State v. Dixon, 83 Hawaii 13, 23, 924 P.2d 181, 191 (1996). Hawaii’s exclusionary rule, he wrote, should not distinguish between police misconduct and judicial error. The constitution is designed to protect individuals “against intrusions by the government.” State v. Kahoonei, 83 Hawaii 124, 129, 925 P.2d 294, 299 (1996). Justice Acoba wrote that this error was more than a mere scrivener’s error. It invites officers executing the warrant to proceed at their own peril when there are conflicting commands in the warrant itself. He also wrote that all three of the underlying purposes to Hawaii’s exclusionary rule were undermined. Judicial integrity is undermined for Justice Acoba. “An error by the hand of either a police officer or a judge is not excused to the detriment of privacy rights.” It shows that the government failed to abide by its own laws. He also believed that the misconduct by the police was the failure to read the warrant. Allowing the search “entirely exculpates the police officer or officers who received the warrant from the judge and proceeded to execute it, even though the discrepancy on the face of the warrant should have been obvious to the officers.” Justice Acoba would have upheld the suppression on these grounds. Justice McKenna joined.

Editor’s Note. I represented Mr. McKnight before the ICA and the HSC.