Canine Sniffs, Speculative Cops, and Keeping the Door Closed
State v. Inimaka (HSC June 9, 2020)
Background. Larry Inimaka, Liane Henderson, and Cheri Numazawa were charged with drug offenses. Inimaka filed a motion to suppress the evidence seized by the police from his truck. At the hearing, the police testified that at around 2:30 in the morning, they received from dispatch a 911 call from Numazawa alleging that Ikimaka struck her, took her purse, and left in a gold Chevy truck. The officers stopped the truck and asked Ikimaka and Henderson to get out of the truck. It had been raining “off and on.”
After 30 minutes the officers found Numazawa at a nearby beach. She just wanted her purse back and did not want to press charges. The officers, however, determined that they had probable cause to search the truck. Numazawa had a drug history, but the main reason to search was based on the theft.
The truck was seized as evidence and the police officers told Ikimaka and Henderson they were free to go. Ikimaka stayed and another officer read him his Miranda rights. Ikimaka said he was not going to make a statement.
The officers called in a canine handler. The narcotics detector dog alerted to the presence of narcotics in the truck and the officers applied for and obtained a search warrant. They searched the vehicle and found methamphetamine, a scale, cash, and suspected marijuana.
The circuit court, with Judge Randall Valenciano presiding, denied the motion. Henderson pleaded out and Ikimaka and Numazawa went to trial.
At trial, the prosecution called the investigating officers. On cross-examination of one of the officers, Inimaka asked if he had personal knowledge if Inimaka “ever intended to possess any of those drugs.” The answer was no. On redirect the prosecutor asked if Ikimaka’s plea to “just arrest me” instead of taking the truck was an intent to possess the drugs inside it. The prosecutor then called Officer Hansen Hsu who testified that Ikimaka did not want to talk to the police. Ikimaka immediately objected and the circuit court sustained the objection and instructed the jury not to consider that line of questioning. The officer, however, later testified that Ikimaka spontaneously told him that he had Numazawa’s bag in the truck and asked if they could “just arrest me for theft and don’t take my truck?”
Numazawa was acquitted. Ikimaka was found guilty and sentenced to probation with 9 months jail. He appealed and the ICA affirmed.
The Canine Sniff was an Unlawful Search. The “right to be free of unreasonable searches and seizures . . . requires that governmental intrusions into the personal privacy of citizens of this State be no greater in intensity than absolutely necessary under the circumstances.” State v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58-59 (1974). A traffic stop is a seizure for constitutional purposes. State v. Estabillio, 121 Hawai'i 261, 270, 218 P.3d 749, 758 (2009). An investigative stop is justified when (1) the initial stop is justified at its inception and (2) the search or seizure was reasonably related in scope to the circumstances which justified the interference in the first place. State v. Perez, 111 Hawai'i 392, 397, 141 P.3d 1039, 1044 (2006).
The HSC held that the dog sniff here was not reasonably related in the scope to the initial traffic stop. The fact that Numazawa might have had a drug history was not enough to give the police reasonable suspicion to think Ikimaka’s truck contained drugs. The dog sniff was the only information that supported the warrant to search the entire truck for drugs. That rendered the search warrant fatal. The HSC vacated the judgment and remanded the case.
The Prosecutor’s Reference to the Refusal to Speak to the Police at Trial Might have been Misconduct. Prosecutors cannot imply that the defendant’s silence to the police is evidence of his or her guilt. State v. Melear, 63 Haw. 488, 496, 630 P.2d 619, 626 (1981). Whether a prosecutor’s comment was improper depends on whether the comment “was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment” on the right to remain silent. State v. Rodrigues, 113 Hawai'i 41, 49, 147 P.3d 825, 833 (2006). Because the conviction was vacated on other grounds, the HSC declined to determine if the prosecutor here committed misconduct. It merely cautioned prosecutors to watch out for that.
Ikimaka did not “Open the Door.” The HSC also visited the officer’s hypothetical question about whether a comment about being arrested was evidence of an intent to possess drugs. Ikimaka argued that Officer Hsu’s testimony about his intent to possess the drugs was speculative and inadmissible pursuant to HRE Rule 602 and 701. The HSC rejected the circuit court’s conclusion that Ikimaka had opened the door.
The ‘opening the door’ doctrine is essentially a rule of expanded relevancy. Under this doctrine, when one party introduces inadmissible evidence, the opposing party may respond by introducing inadmissible evidence on the same issue. Admissible evidence therefore does not ‘open the door’ to otherwise inadmissible evidence.
State v. Lavoie, 145 Hawai'i 409, 422-423, 453 P.3d 229, 242-243 (2019) (citations, brackets, and quotation marks omitted). The HSC has yet—even with Lavoie and with the recent Miranda case—to adopt this doctrine. Once again, the HSC examined what happened and held that the door was not opened even if the doctrine was adopted.
The HSC explained that Ikimaka questioned Officer Hsu about his personal knowledge or lack of knowledge. He asked if Officer Hsu had any way of knowing Ikimaka’s intent to possess drugs. Ikimaka did not invite Officer Hsu to speculate. The answer was an obvious “no.” This question did not invite the prosecutor to violate the rules of evidence and have Officer Hsu speculate about whether a statement like “just arrest me and don’t take my truck” was evidence of the intent to possess drugs inside the truck.
Witnesses “may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” HRE Rule 602. Opinion testimony is limited to those that are either “rationally based on the perception of the witness, and helpful to a clear understanding of the witness’ testimony or the determination of fact in issue.” HRE Rule 701. Officer Hsu’s testimony was inadmissible because it expressed a legal conclusion as to the defendant’s state of mind. He is not an expert and his answer is not based on personal knowledge. The circuit court abused its discretion in admitting this testimony.