Unjustifiable Warrantless Arrest Invalidates Search Incident to Arrest

 State v. Rosa (ICA August 31, 2020)

Background. Keoni Rosa was charged with continuous sexual assault of a minor and sexual assault in the first degree. The complainant’s mother called the police to report a sexual assault that occurred when the complainant was thirteen years old—about a year before the incident. The police interviewed the complainant and the mother. Both reported multiple instances of sexual assault and identified Rosa as the assailant. The complainant reported communications over cellular telephones including exchanging “naked photos” and explicit texts. The police learned that the complainant’s mother erased the text messages and images and the phone was out of service. A detective followed up with a further investigation. The complainant again identified Rosa as the assailant.


Weeks later, a different detective went out to arrest Rosa, but could not find him. In the meantime a detective served a subpoena on cellular phone providers for text message logs on Rosa’s telephone number. Rosa was eventually arrested as he appeared in court on an unrelated matter. The officer conducted a search and confiscated his iPhone. The phone was seized. The police applied for a warrant and a circuit court judge approved it to search the phone.


Rosa was indicted. He moved to suppress the phone and its contents. The circuit court, with the Hon. Judge Shirley Kawamura presiding, denied the motions. At trial, Rosa testified that he had worked with a company called Handi-Van. During one of the breaks, a juror asked to address the trial judge. The juror explained that he worked for Handi-Van and might have worked at the same time as Rosa. He assured the court that he could remain fair and impartial. Neither party asked questions nor objected to him remaining on the jury. The juror ended up being the foreperson. Rosa was found guilty as charged. Before sentencing, Rosa filed a motion for new trial. The motion was denied and he was sentenced to twenty years imprisonment running concurrently. Rosa appealed.


Search has to be Incident to a Lawful Arrest. “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[.]” Haw. Const. Art. I, Sec. 7; see also U.S. Const. Am. IV. These rights “mandate that government agents generally obtain search warrants based on probable cause before effecting a search and seizure of persons or places connected to criminal activity.” State v. Eleneki, 106 Hawai'i 177, 189, 102 P.3d 1075, 1087 (2004). Warrantless searches are “presumptively unreasonableness unless they fall within one of the carefully defined exceptions.” State v. Wiley, 69 Haw. 589, 591, 752 P.2d 102, 103 (1988). “A contemporaneous search incidental to a lawful arrest may be made for the fruits of the crime, implements used to commit the crime and for weapons.” Staet v. park, 50 Haw. 275, 276, 439 P.2d 212, 213 (1968).


Rosa was arrested without a warrant pursuant to HRS § 803-5 and the prosecution argued that his phone seized pursuant to the search-incident-to-arrest exception. The ICA rejected the prosecution’s claim.


HRS §§ 803-1 and 803-5 Allow Warrantless Arrests if Done in an Expeditious Manner. “No arrest of any person shall be made without first obtaining a warrant or other process therefor from some magistrate, except in the cases provided in this chapter or otherwise provided by law.” HRS § 803-1. One exception is HRS § 803-5, which allows the police to arrest and “detain for examination any person” without a warrant “when the officer has probable cause to believe that such person has committed any offense[.]” HRS § 803-5(a). The statute, however, does not allow officers to delay in making the warrantless arrest. An “element of immediacy is present in HRS § 803-5[.]” State v. Keawe, 107 Hawai'i 1, 6,108 P.3d 304, 309 (2005). “[I]f the police wish to delay the arrest for tactical reasons, the police may not rely upon HRS § 803-5 to proceed without a warrant.” Id. at 7, 108 P.3d at 310. Put differently, “if the police believe that waiting days or weeks to arrest a defendant is the most appropriate action under the circumstances . . . then the police cannot rely upon HRS § 803-5 and must obtain a warrant pursuant to HRS § 803-1.” Id. See also State v. Line, 121 Hawai'i 74, 84-85, 214 P.3d 613, 623-624 (2009).


In this case, the record showed that the police held off on arresting Rosa because it wanted to do a more thorough investigation. The officers received information that Rosa had sexually assaulted the complainant. The ICA held that the officers had probable cause to arrest Rosa after the detective interviewed the complainant and provided specific incidents of sexual assault and positively identified Rosa. Rosa, however, was not arrested for another 19 days. Nothing stopped them from applying for a warrant for Rosa’s arrest and instead waited for weeks because “they thought it would be a convenient way to pick him up” when he showed up for court. The ICA held that the warrantless arrest (i.e., seizure) was unlawful.


ICA Does not go so far to Suppress the Phone. Under the inevitable discovery doctrine, the prosecution must show “clear and convincing evidence that any evidence obtained in violation of article I, section 7, would inevitably have been discovered by lawful means before such evidence” is admitted. State v. Lopez, 78 Hawai'i 433, 451, 896 P.2d 889, 907 (1995). Here, the circuit court ruled that Rosa’s arrest was lawful and thus the seizure of the phone was lawful too. The ICA held that the circuit court never reached the issue on inevitable discovery and made no ruling if the data on Rosa’s phone “would have still be there” had the phone been recovered some time after the unlawful arrest. The ICA declined to determine if the discovery of the phone would have been inevitably discovered. The ICA remanded the case for the circuit court to determine if the prosecution met its burden to show clear and convincing evidence that that data retrieved from Rosa’s phone would have been discovered.


A Tall Order. The ICA held that the arrest of Rosa at the courthouse was unlawful and, therefore, the iPhone and the data in his phone were unlawfully seized. The prosecution argued that Rosa’s phone would have been seized at some point because he would have been inevitably arrested and at that time he would have his phone on him. On remand, the prosecution would have to show that with clear and convincing evidence. How exactly would the prosecution show that Rosa would have been arrested eventually when the police got around to applying for and receiving an arrest warrant and once they found him, he would have had his phone on him? Is it enough to presume that a person has a phone in his or her pocket whenever they leave their home? Given the clear-and-convincing standard it might not.


No Error in Denying Motion for New Trial. The ICA rejected Rosa’s argument that the circuit court erred in denying his motion for a new trial. The ICA found no merit in the claims that the juror might have been biased and that Rosa’s trial lawyer violated his Due Process rights by failing to call every witness on the witness list.


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