Dissecting when sentencing court can set discretionary terms of probation and when they can be enforced

 State v. Talo (HSC March 15, 2023)

Background. Logovii Talo was charged with assault in the second degree after punching an employee at the Rent-A-Center in Wahiawa and causing a concussion. There were no weapons involved. Talo pleaded no contest to the charge and was sentenced to probation. One of the terms and conditions of probation required him to submit at reasonable times to a search of his person, residence, vehicle, or other property under his control by any probation officer without a warrant based on reasonable suspicion that illicit substances or “contraband” may be in that place. He was also prohibited from owning or possessing firearms or ammunition.

 

Two years later, Talo’s wife, Jenifer applied for restraining orders against Talo. She averred that he may own or possess a weapon. The applications were dissolved. Months after that, the police called the probation office and told the supervisor that Jenifer reported that Talo had a gun. Probation started to investigate a possible probation violation. They ultimately decided to conduct a warrantless search of the Talo’s house. It would take approximately another two months to execute the search. Probation found a gun wrapped in a lavalava under the mattress of Talo’s bed. They found ammunition in the same room. The gun and ammunition were given to the police because the probation office did not have the means to store the weapons.

 

The prosecution moved to revoke Talo’s probation. At the hearing on the motion, Talo moved to suppress the firearm and ammunition on the grounds that the search was really subterfuge for an independent police investigation. The motion to suppress was denied, the motion to revoke was granted, and the circuit court—with the Hon. Judge Karen T. Nakasone presiding, sentenced Talo to five years of imprisonment. Talo appealed. The ICA affirmed. Talo petitioned to the HSC. The HSC then requested supplementary briefing on the issue of whether the sentencing court abused its discretion in allowing probation to conduct warrantless searches based on reasonable suspicion.

 

The sentencing court’s discretionary power to impose conditions of probation. The HSC began its analysis by restating the cases that allow probation officers to conduct warrantless searches. Empowering probation officers to search without a warrant must be balanced against the defendant’s constitutional rights. State v. Fields, 67 Haw. 268, 279, 686 P.2d 1379, 1388 (1984). Defendants on probation still have the right to privacy—albeit a more diminished one. Id. at 277, 686 P.2d at 1387. The probation condition must contribute to the rehabilitation of the defendant. Id. at 278, 686 P.2d at 1387. Probation officers have a unique interest in invading the defendant’s privacy to monitor them and help them safely reenter the community. Id. at 280, 686 P.2d at 1388. Even if there is a legitimate basis to empower probation officers to conduct warrantless searches, the search must still be based on “specific and articulable facts giving rise to a reasonable suspicion that illicit drugs are concealed on the person, in the property, or at the place of residence[.]” Id. at 281, 686 P.2d 1389.

 

Later, this condition was codified in HRS § 706-624(2)(q) as a discretionary condition of probation. When imposing a discretionary term of probation, the sentencing court must have “a factual basis in the record indicating that such conditions are reasonably related to the factors set forth in HRS § 706-606 and insofar as such conditions involve only deprivations of liberty or property that they are reasonably necessary for the purposes indicated in HRS § 706-606(2).” State v. Kahawai, 103 Hawai'i 462, 462-463, 83 P.3d 725, 725-726 (2004).

 

There are notice requirements too. Probation cannot be revoked unless and until the prosecution can established that the defendant received written notice of the condition at issue pursuant to HRS § 706-624(3). Moreover, the written notice requirement is intended to provide defendants of notice of what is expected. State v. Lee, 10 Haw. App. 192, 198, 862 P.2d 295, 298 (1993).

 

The HSC examined probationary searches again in State v. Propios, 76 Hawai'i 474, 879 P.2d 1057 (1994). There, the HSC held that the search was unlawful because its true purpose was to obtain evidence for a future criminal prosecution. Id. at 487, 879 P.2d at 1070.

 

The sentencing court did not abuse its discretion in imposing the search condition. A discretionary condition of probation must be reasonably related to the factors in HRS § 706-606. HRS § 706-624(2). See also Kahawai, 103 Hawai'i at 462-463, 83 P.3d at 725-726. In this case, the HSC rejected Talo’s argument that the search condition was not reasonably related. Talo was convicted of a felony and a “crime of violence” as defined in HRS § 134-1. That meant he could not own, possess, or control a firearm or ammunition. HRS § 134-7(b).

 

The facts of the assault in the second-degree conviction were beside the point. The condition as reasonably related to “protecting the public from further crimes by Talo involving firearms.” The factual basis in the record supporting this condition is the fact that he is convicted of a felony and a crime of violence.

 

There was adequate notice that probation could search for “contraband.” The HSC examined the language of the condition in the judgment:

 

Submit at reasonable times to a search of your person, residence, vehicle, or other sites and property under your control by any probation officer, with or without a warrant, based on reasonable suspicion that illicit substance(s) or other contraband, may be in the place(s) of your search. Any illicit substance(s) or contraband found or observed in search a search may be seized[.]

 

The HSC held that this condition standing alone does not satisfy the notice requirements in HRS § 706-624(3) and Lee even though the word “contraband” is not clear:

 

“Contraband” could include firearms, child pornography, illegal fireworks, military equipment, or even endangered animals kept as pets, just to name a few examples. Hence, special condition Q does not provide sufficient notice to a person on probation as to what “contraband” the person is prohibited from possessing so as to “enable the [person] to comply with the conditions accordingly.” HRS § 706-624(3).

 

The HSC, however, examined other conditions of probation and noted the clear warning in another condition that prohibited Talo from possessing firearms and ammunition. Read together, that provided him with lawful notice.

 

Pornography, fireworks, and nene geese. The HSC whittled down a lot of the discretionary conditions in the judgment. It noted that there was no factual basis to impose drug conditions—that is the prohibition of possessing, use, or consuming drugs and drug testing—because nothing in the record justified as required in Kahawai. The HSC also held that the term “contraband” was too vague to give adequate notice as required in HRS § 706-624(3) and Lee. But for the other condition prohibited the possession of firearms and ammunition, it would not have passed muster.

 

Chief Justice Recktenwald’s concurrence and dissent. The Chief Justice would have gone further. He agreed that the condition allowing the search complies with HRS § 706-624(2) and the requirement in Kahawai as it relates to firearms and ammunition. The CJ wrote separately because he disagreed with the majority’s reasoning. For him, the search condition should be available for any crime—not just felonies or crimes of violence. He also disagreed that the term “contraband” is ambiguous and vague. It simply means “goods that are unlawful to import, export, produce, or posses.” Black’s Law Dictionary (11th ed. 2019). There is no other way to read it. See Farmer v. Admin. Dir. Of Court, State of Haw., 94 Hawai'i 232, 236, 11 P.3d 457, 461 (2000) (a term is ambiguous when it could be understood in “two or more different senses.”).

 

He was joined by Judge Clarissa Y. Malinao, who was assigned Justice Nakayama’s seat on this case because she had to recuse herself.