Exclusionary Rule at Odds with Police Acting as Care Providers
State v. Lee (HSC February 9, 2021)
Background. Honolulu Police Department officers responded to a “suicidal male call” at an ‘Aiea residence. The family let the officers into the home and directed them to a closed bedroom door. Family members said that Joshua Lee was in his room and he had samurai swords in there. They made contact with Lee through the closed door. The did not allow the officers to open the door, but told them he was okay and asked them to leave. The Sgt. Michael Cobb who responded to the call started talking to Lee. He told him that he “needed to grow up” and “be a man.” Lee asked if the officers had a warrant. Sgt. Cobb told him “we don’t need a warrant, dumbass.” Despite Lee’s request that they leave him alone, the officers needed to check if there was a risk that he would harm himself. The officers picked the lock and opened it to at the very least see Lee.
When they did, the door was obstructed. At some point, Lee’s family members asked the police to leave. The officers ignored them. The door opened four to six inches and the officers saw Lee holding a wooden sword. The officers forced their way into Lee’s room. Once inside, Lee swung the sword at the officers, but missed. Sgt. Cobb tried to calm Lee down, but Lee held an aggressive stance. Sgt. Cobb grabbed Lee’s arm, but Lee flipped Sgt. Cobb to the ground and started to kneel on his head. The officer grabbed Lee and Lee threw the officer onto a couch. He was ultimately subdued with pepper spray. Lee was charged with terroristic threatening in the first degree and assault of a law enforcement officer in the first degree.
Lee moved to suppress evidence gathered within Lee’s bedroom and statements made to the officers after they entered the room. Lee argued he had a personal expectation of privacy in his bedroom. The circuit court, with the Hon. Judge Rom Trader presiding, granted the motion. The prosecution appealed. The ICA vacated the suppression order based on the emergency aid exception to the warrant requirement. Lee applied for certiorari and the HSC accepted.
What this case is NOT About . . . The HSC noted what this case is not about. It began by assuming that the entrance into Lee’s bedroom was unlawful. In other words, it began with the premise that the entrance into the bedroom was a search and there was no exception to the warrant requirement justifying the search. The question for the HSC was whether evidence gathered by the officers and what happened afterwards was a fruit of the poisonous tree justifying suppression.
The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine in Hawai'i. The exclusionary rule serves two purposes: “deterring governmental officials from circumventing the protections afforded by the Hawai'i Constitution” and “protect[ing] the privacy rights of our citizens.” State v. Lopez, 78 Hawai'i 433, 446, 896 P.2d 889, 902 (1995). This includes fruits of the poisonous tree, which “prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.” State v. Fukusaku, 85 Hawai'i 462, 475, 946 P.2d 32, 45 (1997).
The fruit of the poisonous tree doctrine requires the prosecution to show that despite the constitutional violation, the evidence is “untainted” by the unlawful act. Id.
Under the fruit of the poisonous tree doctrine, [a]dmissibility is determined by ascertaining whether the evidence objected to as being ‘fruit’ was discovered or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint.
State v. Trinque, 140 Hawai'i 269, 281, 400 P.3d 470, 482 (2017).
The Police Weren’t there to Gather Evidence and did not “Benefit” from the Opened Door. The HSC held that both exceptions to the fruit of the poisonous tree doctrine applied. First, under the doctrine evidence is excluded when the prosecution cannot show “the discovery of the challenged evidence was not a benefit derived from the prior illegality.” Id. at 282, 400 P.3d at 483. Here, the HSC held that opening Lee’s bedroom door did not confer a benefit to the prosecution. The officers were not summoned to ‘Aiea to investigate and gather evidence, but rather to respond to a “suicidal male call.” And so even if the officers violated Lee’s constitutional rights by opening the bedroom door, they were not gathering evidence. The HSC observed they were there to “administer care.”
Lee’s Actions Severed the Causal Connection Between the Violation and the Evidence at Issue. The HSC also noted that Lee’s actions “purged any potential taint” from the unlawfully opened door. The HSC held that “evidence of a separate, independent crime after an illegal entry will not be suppressed under either the Fourth Amendment or article I, section 7 of the Hawai'i Constitution.” The HSC explained that defendants’ “subsequent criminal acts, committed of their own free will, sever the causal link between the illegal entry and the evidence.” In other words, the court must determine if the causal connection between the unlawful activity and the discovery of the challenged evidence has “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341 (1939).
The HSC agreed with the Minnesota Supreme Court’s reliance on the following factors to determine this question: the temporal proximity between the illegality and the evidence; the presence of intervening circumstances; the purpose and flagrancy of the physical misconduct, which is the most important factor given that the purpose of the exclusionary rule is to deter police misconduct. State v. Bale, 267 N.W.2d 730, 733 (Minn. 1978). These factors all point against Lee. The HSC held that Lee’s conduct intervened and effectively destroyed any casual connection between the evidence and the unlawful intrusion.
Justice Wilson’s Dissent. Justice Wilson wrote that the majority—a bare majority because Justice Pollack retired and no substitute judge was appointed—created “a new suicide exception” to the constitutional right to privacy in the bedroom. Justice Wilson pointed out that Lee was not under suspicion of a crime and that he committed no crime when the police knocked on his bedroom door demanding entry. He told the officers he was “fine” and that he wanted them to “go away.” For Justice Wilson this was clear. Lee asserted his constitutionally-protected right to be free from unreasonable governmental intrusions of privacy.
Justice Wilson took issue with the majority’s assertion that the officers were “required” to ensure that Lee was safe. Such a “requirement,” he wrote is unsupported by any authority and “contravenes the right to privacy oft acknowledged by this court.” Justice Wilson was deeply troubled by the majority’s holding:
The Majority’s ruling that Mr. Lee lost his right to privacy notwithstanding his family’s pleas that the police officers leave their home and leave Mr. Lee alone portends consequences replete with danger, violence, and loss of respect for law enforcement the exclusionary rule was meant to prevent. . . . [W]ithout his right to privacy and his right to be free from unreasonable search and seizure, Mr. Lee fell victim to the use of police violence and subsequent criminal prosecution arising from his opposition to the unconsented entry by police into his bedroom.
Justice Wilson would have upheld the circuit court’s suppression order.