No Warrant, No Exigency, No Evidence

 State v. Willis (HSC December 2, 2021)

Background. Erik Willis was indicted for attempted murder in the second degree. Willis moved to suppress evidence gathered by the police when they went into his house and arrested him without a warrant. The police suspected Willis of repeatedly stabbing a teenager without provocation on a beach in Kahala. They surveilled him for a day and a half and concluded they had probable cause to make the arrest.

 

The officers went into his house to arrest him without a search or arrest warrant. When they went inside, they saw shoes and a shirt that matched the description from an eyewitness to the stabbing. The circuit court, the Hon. Judge Kevin Souza presiding, granted the motion and excluded evidence of the shoes, shirt, and Willis’s statements. The prosecution appealed and the case was transferred to the HSC.

 

Search and Seizure: the Basics. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall no be violated[.]” U.S. Const. Am. IV. See also Haw. Const. Art. I, Sec. 7. When it comes to search and seizure, “the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). See also Payton v. New York, 445 U.S. 573, 585 (1980) (“physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed”); State v. Line, 121 Hawai'i 74, 85, 214 P.3d 613, 624 (2009) (“special privacy interest in the home”). A warrantless search and seizure is presumptively unreasonable. Payton v. New York, 445 U.S. at 586; State v. Pulse, 83 Hawai'i 229, 245, 925 P.2d 797, 813 (1996).

 

Exigency Means just that. Without a warrant, the prosecution must show an exception to the warrant requirement. The HSC noted that in this case the only plausible exception is “exigent circumstances.” State v. Line, 121 Hawai'i at 77, 214 P.3d at 616. Exigency arises “when the demands of the occasion reasonably call for an immediate police response.” State v. Jenkins, 93 Hawai'i 87, 102, 997 P.2d 13, 28 (2000). It calls for a “now or never” situation where there is “no time to secure a warrant.” Lange v. California, _ U.S. __, 141 S. Ct. 2011, 2018 (2021). Recently, the HSC described exigency as “an imminent threat of harm to a person, where there is a danger of serious property damage, where a suspect is likely to escape, or where evidence is likely to be removed or destroyed.” State v. Naeole, 148 Hawai'i 243, 250, 470 P.3d 1120, 1127 (2020).

 

The HSC agreed that there were no exigent circumstances here. It rejected the prosecution’s argument that the police needed to act quickly because Willis was a dangerous person who provoked a woman lying on the beach. The serious or violent nature of the case does not establish exigency. Welsh v. Wisconsin, 466 U.S. 740, 752 (1984) (exigency must be “independent of the gravity of the offense” at time of arrest); Mincey v. Arizona, 437 U.S. 385, 394 (1978). The HSC pointed out that this would create a category of pre se exigent cases and rejected the prosecution’s argument.

 

The HSC also held the prosecution did not meet its burden in establishing exigency. The police surveilled Willis for a day and a half. The officers should have gotten a warrant before going into the house. See Mitchell v. Wisconsin, __ U.S. __, 139 S.Ct. 2525, 2541 (2019) (Sotomayor, J. dissenting) (“If there is time, get a warrant.”).

 

Evidence Seized in the House and Obtained During the Arrest is a Fruit. The HSC also agreed with the circuit court that the evidence gathered in the house in violation of the fruit-of-the-poisonous-tree doctrine. State v. Weldon, 144 Hawai'i 522, 534, 445 P.3d 103, 115 (2019).