De Minimis Motions Require Examining Quantity of Drugs and Additional Circumstances
State v. Enos (HSC May 27, 2020)
Background. Homeless people frequent an area under the H-1 freeway near the intersection of Waialae and Kealaolu Avenue in Honolulu. The area belongs to the State of Hawai'i and there are signs posted nearby stating “Keep out,” “Government Property” and “Trespassers with be Prosecuted.” One night at around 11 p.m., Officer Albert Moniz was patrolling the area on foot and saw Frank Enos behind a cardboard box sleeping. Officer Moniz saw that next to Enose was a “neoprene pouch with a clear glass pipe” commonly used for smoking crystal methamphetamine. Officer Moniz ordered Enos to stand up and hand over the pipe. Enos said he didn’t know what he was talking about. Officer Moniz arrested him for criminal trespass onto state lands in violation of HRS § 708-814.7. Enos told the officer, “I know, but I have nowhere else to go.”
Officer Moniz seized the open pouch and pipe. Enos maintained that the pipe was not his and that he was watching the area for his friend, who was using the pipe with his girlfriend. The police lab analyzed the substance in the pipe and concluded it contained 0.002 grams of methamphetamine and the bag itself had 0.003 grams. Purity was not determined.
Enos was charged with promoting a dangerous substance in the third degree based on the possession of methamphetamine. HRS § 712-1243. Enos filed a motion to dismiss the charge as a de minimis violation. Enos argued the amount of methamphetamine was de minimis. Enos incorporated expert testimony from another case back in 1999.
The circuit court with Hon. Judge Karen T. Nakasone presiding granted the motion and dismissed the case. The prosecution appealed. The ICA vacated the order and remanded the case back to the circuit court to “redetermine the issue of whether Enos’s conduct constitute a de minimis violation.” Enos petitioned for certiorari urging reversal of the vacatur.
De Minimis Infractions. Courts have discretion to dismiss a charge as de minimis if, in light of the attendant circumstances, it finds the defendant’s conduct “[d]id not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation or conviction[.]” HRS § 702-236(1)(b). The burden of proof falls on the defense in a de minimis motion. State v. Oughterson, 99 Hawai'i 244, 256, 54 P.3d 415, 427 (2002).
Hawai'i’s drug laws are “intended to control the use and sale of illicit drugs . . . and to address related social harms, including property and violent crimes.” State v. Fukagawa, 100 Hawai'i 498, 504, 60 P.3d 899, 905 (2002). The HSC concluded that the “harm or evil sought to be prevented by” promoting of a dangerous drug in the third degree is deterring drug possession. However, de minimis offenses arise here “where a literal application of HRS § 712-1243 would compel an unduly harsh conviction for possession of a microscopic trace of a dangerous drug[.]” State v. Vance, 61 Haw. 291, 307, 602 P.2d 933, 944 (1979). The possession of a “microscopic” or “infinitesimal” amount of a dangerous drug is de minimis when it could “produce a pharmacological or physiological effect.” State v. Fukagawa, 100 Hawai'i at 506, 60 P.3d at 907.
But the quantity is just one of the circumstances the court must consider. Id. at 505, 60 P.3d at 906. All of the relevant facts “bearing upon the defendant’s conduct and the nature of the attendant circumstances regarding the commission of the offense should be shown to the judge.” State v. Park, 55 Hawai'i 610, 616, 525 P.2d 586, 591 (1974). The HSC reaffirmed the standard in Fukugawa:
Before dismissing a charge as a de minimis infraction, a court must consider the amount of drugs possessed and the surrounding circumstances to determine if the defendant’s conduct caused or threatened the harm or evil sought to be prevented by the law defining the offense sufficiently to warrant the condemnation of conviction.
Id. at 505, 60 P.3d at 905.
So What Are the Surrounding Circumstances? The HSC noted that the circuit court properly applied this standard. In addition to correctly finding that the amount found on Enos was not enough to cause a “physiological or euphoric effect,” there was no other paraphernalia found on his person, he was not engaged in violent activity, and while he was trespassing on state lands that was not within the ambit of the legislature’s concern in promulgating the drug laws. He was trespassing because he was homeless and “had nowhere else to go.” The HSC held that the circuit court did not abuse its discretion in granting the de minimis motion.