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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2021
09:23 AM
Dkt. 53 MO
NOS. CAAP-XX-XXXXXXX AND CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant,
v.
LAURIE A. DARGIS, Defendant-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 1CPC-XX-XXXXXXX)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
In this consolidated appeal, Plaintiff-Appellant State
of Hawai#i (State) appeals from the "Findings of Fact and
Conclusions of Law and Order Granting Defendant's Second Motion
to Suppress Evidence" (Order Granting Motion to Suppress) entered
on October 23, 2019,1 by the Circuit Court of the First Circuit
(Circuit Court).2
On January 11, 2019, the State charged Defendant-Appellee Laurie A. Dargis (Dargis) by Complaint with: Promoting a
Dangerous Drug in the Third Degree in violation of Hawaii Revised
1
The Circuit Court filed an identical Order Granting Motion to
Suppress on November 7, 2019 which the State appealed in CAAP-XX-XXXXXXX. This
court consolidated the appeals under CAAP-XX-XXXXXXX.
2
The Honorable Trish K. Morikawa presided.
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Statutes (HRS) § 712-1243 (2014)3 (Count I), and Promoting a
Detrimental Drug in the Third Degree in violation of HRS § 712-
1249 (2014)4 (Count II).5
On appeal, the State contends the Circuit Court erred:
(1) by suppressing the "ice pipe" found in open view and the
container of marijuana found in plain view in Dargis's vehicle
because the seizure of that evidence did not require a search
warrant, and even if it did, that evidence would have been
inevitably seized pursuant to a valid warrant; and (2) in its
Conclusions of Law (COL) 4, COL 5, COL 10, COL 11, and COL 12.
For the reasons discussed below, we affirm the Circuit
Court's Order Granting Motion to Suppress.
I. Background
On May 28, 2019, Dargis filed a Motion to Suppress
Evidence (First Motion to Suppress) arguing that there had been a
lack of reasonable suspicion for the stop of her vehicle. On
June 28, 2019, Honolulu Police Department Officer Jarrett Atkins
(Officer Atkins) testified at the hearing on Dargis's First
Motion to Suppress, after which the Circuit Court denied the
motion, finding there was reasonable suspicion for the stop of
the vehicle.
On August 5, 2019, Dargis filed a Second Motion to
Suppress Evidence (Second Motion to Suppress). In her memorandum
3
HRS § 712-1243 provides, in relevant part:
Promoting a dangerous drug in the third degree. (1) A
person commits the offense of promoting a dangerous drug in the
third degree if the person knowingly possesses any dangerous drug
in any amount.
4
HRS § 712-1249 provides, in relevant part:
Promoting a detrimental drug in the third degree. (1)
A person commits the offense of promoting a detrimental drug
in the third degree if the person knowingly possesses any
marijuana or any Schedule V substance in any amount.
5
Dargis's co-defendant Gerry K. Kawaguchi ( Kawaguchi), who is not a
party in this appeal, was charged with Promoting a Dangerous Drug in the First
Degree in violation of HRS § 712-1241(1)(a)(i) ( Count III).
2
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in support of her Second Motion to Suppress, Dargis argued, inter
alia, that Officer Atkins illegally searched her vehicle without
first obtaining a warrant because there were no exigent
circumstances to justify the warrantless search. The parties
stipulated to the June 28, 2019 testimony by Officer Atkins and
no witnesses testified at the hearing on Dargis's Second Motion
to Suppress.
After a hearing on September 18, 2019, the Circuit
Court entered its Order Granting Motion to Suppress, in which it
held there were no exigent circumstances and a search warrant was
required to seize the evidence from Dargis's vehicle. The
Circuit Court thus suppressed the evidence. The Circuit Court's
findings of fact in its Order Granting Motion to Suppress are not
challenged and are therefore binding on appeal. Okada Trucking
Co. v. Bd. of Water Supply, 97 Hawai#i 450, 458, 40 P.3d 73, 81
(2002). The unchallenged findings state in pertinent part:
8. The following information was provided by Officer Atkins
in his previous testimony on June 28, 2019:
a. On January 6, 2019, at approximately 3:[5]4 a.m., 6
Officer Atkins was on duty and on patrol in his marked
blue and white vehicle traveling on Kamehameha
Highway.
b. While on patrol, Officer Atkins noticed a vehicle
parked along the area of 56-565 Kamehameha Highway and
approached the vehicle.
c. When Officer Atkins was approximately 15 feet away
from the vehicle he noticed that the vehicle was a
green Honda that he had observed a few days prior at
Kahana Bay.
d. Officer Atkins related that a few days prior while
he had been transporting a prisoner to the Kaneohe
Police Station, Officer Atkins had observed a green
Honda parked at Kahana Bay. Per Officer Atkins there
were a number of abandoned cars in the area of Kahana
Bay. Officer Atkins was familiar with Defendant Dargis
and observed her next to the green Honda. Officer
Atkins slowed down and ran the license plate of the
green Honda. Officer Atkins learned that the green
Honda had an expired safety check and vehicle tax.
6
The Circuit Court's findings incorrectly state the time was
approximately 3:24 a.m., which the parties concede is a typographical error.
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e. On January 6, 2019, after Officer Atkins realized
that the green Honda was the same that he had seen and
run the plate a few days prior, Officer Atkins pulled
his vehicle to a stop approximately 10 feet from the
green Honda. Officer Atkins car was parked facing the
front of the green Honda. Officer Atkins headlights
were on as his car approached the green Honda and his
headlights remained on and were facing the driver’s
door area when he parked his vehicle.
f. Prior to getting out of his vehicle, Office Atkins
confirmed that the green Honda had expired vehicle tax
and safety. Officer Atkins then got out of his car and
approached the green Honda. As he approached the green
Honda, Officer Atkins observed Defendant Dargis in the
driver seat of the vehicle ignite a lighter with her
right hand and put the lighter to the bulbous end of a
glass pipe that was pressed to her lips and in her
left hand. Officer Atkins further observed white
residue in the pipe and smoke emit from the bulbous
end of the pipe.
g. Upon becoming aware of Officer Atkins, Defendant
Dargis dropped the pipe to the floor of the vehicle.
h. Officer Atkins reached the door of the vehicle and
order [sic] Defendant Dargis out of the vehicle. He
took Defendant Dargis to the rear of the vehicle and
arrested her for Promoting a Dangerous Drug in the
Third Degree.
i. After Defendant Dargis exited the vehicle, Officer
Atkins observed the pipe on the floor of the vehicle
where Defendant Dargis's feet had been in the vehicle.
j. Officer Atkins then ordered the passenger, co-Defendant Gerry Kawaguchi, out of the vehicle.
k. After the defendants were out of the vehicle,
Officer Atkins retrieved the pipe that he had observed
Defendant Dargis drop onto the floor of the vehicle.
l. As he was retrieving the pipe, Officer Atkins
observed and recovered two other items from the floor
of the vehicle: a clear glass tube with a broken
bulbous end and a jar that contained a green leafy
substance which Officer Atkins identified as
marijuana.
II. Standard of Review
We review the circuit court's ruling on a motion to suppress
de novo to determine whether the ruling was right or wrong.
The circuit court's conclusions of law underlying its ruling
on a motion to suppress are also reviewed de novo under the
right/wrong standard. Under the right/wrong standard, we
examine the facts and answer the question without being
required to give any weight to the trial court's answer to
it.
State v. Vinuya, 96 Hawai#i 472, 480, 32 P.3d 116, 124 (App.
2001) (quotation marks and citations omitted).
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However, findings of fact are reviewed under
the clearly erroneous standard, and will not be set aside on
appeal unless they are determined to be clearly erroneous. A
finding of fact is clearly erroneous when (1) the record
lacks substantial evidence to support the finding, or (2)
despite substantial evidence in support of the finding, the
appellate court is nonetheless left with a definite and firm
conviction that a mistake has been made.
Id. at 480-81, 32 P.3d at 124-25 (quotation marks and citations
omitted) (format altered).
III. Discussion
A. Warrant Requirement and Legally Recognized Exceptions
The United States Supreme Court and the Hawai#i Supreme
Court have recognized that although an automobile, because of its
mobility, may be treated less stringently than a private
residence for Fourth Amendment purposes, a search and seizure
involving a motor vehicle is still subject to the warrant
requirement. State v. Elliott, 61 Haw. 492, 494,
605 P.2d 930,
932 (1980) (citing Coolidge v. New Hampshire,
403 U.S. 443
(1971)). Further, it is well established that any warrantless
search of a constitutionally protected area, such as an
automobile, is presumptively unreasonable unless there is both
probable cause and a legally recognized exception to the warrant
requirement. State v. Jenkins, 93 Hawai#i 87, 102,
997 P.2d 13,
28 (2000).
There is no dispute that probable cause was present in
this case. The dispute in this case centers on whether a search
warrant for the Honda was required before the subject items were
seized from the vehicle. In support of its contention that a
warrant was not required, the State relies on State v. Chong, 52
Haw. 226,
473 P.2d 567 (1970) and argues that the facts in Chong
and this case are similar. Specifically, the State argues that
in Chong, the police knew that the defendants had a reputation
for being narcotic users.
52 Haw. at 228,
473 P.2d at 569. The
police spotted the defendants and when they pulled up alongside
the defendants' vehicle, Mrs. Chong was holding an eyedropper.
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Id. A few seconds later, Mrs. Chong threw the eyedropper out of
the vehicle and swallowed something she had in her hand.
Id.
The police then arrested the defendants, searched the vehicle,
and found heroin and drug paraphernalia.
Id. at 229,
473 P.2d at
570. The exception to the warrant requirement articulated in
Chong was that a limited warrantless search is constitutionally
permissible incident to an arrest based upon probable cause.7
Id. (emphasis added).
In this case, the State did not assert the warrant
exception that is articulated in Chong. Instead, in its
opposition to Dargis's Second Motion to Suppress, the State
argued that the police action was justified at its inception
(apparently referring to Officer Atkins' investigation of
Dargis's vehicle on the side of the road), and that "the search
was reasonably related in scope to the circumstances that
justified the interference in the first place." The State's
opposition then appears to make an argument based on Officer
Atkins seeing Dargis in the vehicle with drug paraphernalia and
making confusing references to both "open view" and "plain view"
without distinguishing between the two.8 Similarly, at the
hearing on September 18, 2019, the State argued that, after
Officer Atkins saw Dargis through a vehicle window, lighting what
appeared to be a methamphetamine pipe, he had observed a crime,
and had probable cause "to intrude upon the defendant's
7
The State mentions, for the first time on appeal, that a search
conducted incident to a proper arrest is constitutional, but does not argue
that exception as being applicable in this case. Thus, we do not address
whether the search of Dargis's vehicle was constitutionally valid as a search
conducted incident to a proper arrest. See Hawai #i Rules of Appellate
Procedure (HRAP) Rule 28(b)(7) ("Points not argued may be deemed waived"); see
also, State v. Moses, 102 Hawai#i 449, 456, 77 P.3d 940, 947 (2003) ("[a]s a
general rule, if a party does not raise an argument at trial, that argument
will be deemed to have been waived on appeal").
8
In its Memorandum in "Opposition to [Dargis's Second Motion to
Suppress]," the State referred to the open and plain view doctrines
interchangeably. Although the State provided a brief explanation of the open
view doctrine, it did not explain the plain view doctrine or how the two
doctrines differ.
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situation," order her out of the vehicle and search for the pipe
he saw her drop. The State also attempted to address the open
and plain view exceptions to the warrant requirement, apparently
arguing that the open view doctrine allowed Officer Atkins to
search the vehicle, without a warrant, for the pipe he had seen
Dargis drop, and that the marijuana was found based on the
officer's plain view. The State also asserted Chong allowed
Officer Atkins to search the car without a warrant, arguing that
in Chong, officers were allowed to make a vehicle search without
a warrant based only on observing furtive suspicious behavior.
On appeal, the State continues to argue the pipe was found based
on the open view doctrine, the marijuana was found in plain view,
and that Chong supports its position that Officer Atkins did not
require a warrant.
Although the underlying facts in Chong may be somewhat
similar to the facts of this case, Chong is inapposite because
the Hawai#i Supreme Court did not consider the open or plain view
doctrines in Chong. Further, the State argues for an incorrect
reading of Chong. During the September 18, 2019 hearing, the
State argued that:
the facts in -- Chong is not a plain view, it's acting --
it's talking about whether it's okay to conduct a
warrantless search.
And in Chong, they were acting furtive, they were
acting suspicious, and they were dropping, like, eye drops
in their eyes, and based just on those -- that basis, they
were permitted to go inside the car and do a search of the
car.
. . . .
[The State:] Okay, but for the initial going into the car to
retrieve what [the police] just observed was a crime in the
commission under Chong, a warrantless search is permitted,
going into the car without a warrant if you see what -- what
they just saw. And again, in Chong, they were permitted to
go into the car without a warrant based on furtive
suspicion.
On appeal, the State argues for a similarly incorrect reading of
Chong, that a warrantless search of a constitutionally protected
area is permitted based solely on suspicion by the police that a
crime had been committed or to retrieve suspected contraband.
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This argument is contrary to the holding in Chong and is without
merit.
The State also argues the search of Dargis's vehicle is
valid based on Hawai#i Supreme Court decisions in State v.
Elliott, 61 Haw. 492,
605 P.2d 930 (1980), State v. Agnasan,
62
Haw. 252,
614 P.2d 393 (1980), and State v. Powell,
61 Haw. 316,
603 P.2d 143 (1979). However, these cases are distinguishable.
In both Elliot,
61 Haw. at 497-98,
605 P.2d at 934, and Agnasan,
62 Haw. at 255-56,
614 P.2d at 395-96, the Hawai#i Supreme Court
held that both probable cause and exigent circumstances were
present to justify the immediate warrantless search of a
defendant's vehicle. The Hawai#i Supreme Court did not consider
the open or plain view doctrines in Elliott or Agnasan. In
Powell, the Hawai#i Supreme Court held that the plain view
doctrine justified the seizure of evidence from the defendant's
vehicle. 61 Haw. at 325,
603 P.2d at 149-50. Here, however, the
State does not explain how Powell is relevant to this case.
Powell is inapplicable in supporting the State's position that
the open view doctrine allowed Officer Atkins to initially search
the vehicle for the ice pipe. Thus, Powell is unhelpful to the
State in justifying Officer Atkins initially searching the
vehicle, such that the plain view doctrine could apply to his
discovery of the marijuana. Accordingly, Elliott, Agnasan, and
Powell are inapposite.
B. Plain View and Open View
The Hawai#i Supreme Court has distinguished between the
plain view doctrine and open view doctrine as follows:
In the plain view situation, the view takes place after an
intrusion into activities or areas as to which there is a
reasonable expectation of privacy. The officer has already
intruded, and, if his or her intrusion is justified, the
objects in plain view, sighted inadvertently, will be
admissible.
In the open view situation, however, the observation takes
place from a non-intrusive vantage point. The governmental
agent is either on the outside looking outside or on the
outside looking inside at that which is knowingly exposed to
the public. The object under observation is not within the
scope of the constitution.
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State v. Meyer, 78 Hawai#i 308, 312-13, 893 P.2d 159, 163-64
(1995) (brackets and citation omitted).
The Hawai#i Supreme Court also explained that for open
view sightings:
the warrantless seizure of the evidence in question depends
on whether the item is in a constitutionally protected area.
If the evidence is not in an area where there is a
reasonable expectation of privacy, that is, if it is located
in a common space, such evidence is subject to seizure by
the governmental agent who spots it, without the necessity
of a warrant or exigent circumstances. . . .
However, if the evidence in question is in open view in an
area in which the evidence retains its constitutional
protection, a warrant is required or exigent circumstances
must exist before the object may be seized.
Id. at 313, 893 P.2d at 164 (emphasis added).
With respect to seizure of evidence under the plain
view doctrine, three factors are required: "(1) prior
justification for the intrusion; (2) inadvertent discovery; and
(3) probable cause to believe the item is evidence of a crime or
contraband." Id. at 314, 893 P.2d at 165. Under the plain view
doctrine, once a warrantless intrusion is justified and the
police are placed in plain view of the evidence, exigent
circumstances are not necessary to seize the evidence. Id. at
316,
893 P.2d at 167.
Here, the Circuit Court correctly concluded that the
open view doctrine applies to the "ice pipe" in Dargis's hand,
which Officer Atkins observed while outside the vehicle. Dargis
then dropped the pipe, Officer Atkins ordered her to exit the
vehicle, took her to the rear of the vehicle and arrested her.
At some point after Dargis exited the vehicle, Officer Atkins
observed the pipe on the floor of the vehicle where Dargis's feet
had been.9 Under the open view doctrine, exigent circumstances
9
Among its various positions on appeal, the State claims the pipe on
the floor was "easily visible through the driver's-side window or the
windshield to any passerby that had bothered to look into the car[,]" and that
the pipe had been discovered in open view. The State apparently agrees that
the open view doctrine applies to the pipe and, in any event, does not
challenge COL 2 in which the Circuit Court concluded that the open view
doctrine applies given Officer Atkins being outside of the vehicle when he
observed the pipe with residue in Dargis's hand. Further, the State does not
argue that Officer Atkins saw the pipe in plain view while Dargis exited the
(continued...)
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were required before seizing the pipe from Dargis's vehicle
without a warrant. See State v. Kapoi, 64 Haw. 130, 141,
637
P.2d 1105, 1114 (1981) ("even the 'open view' of possible
contraband, without more, furnished no basis for its seizure
without a warrant. For 'no amount of probable cause can justify a
warrantless search or seizure absent exigent circumstances.'"
(quoting Coolidge, 403 U.S. at 468)).
For purposes of the open view doctrine, the State had
the burden to establish exigent circumstances to seize items
without a search warrant. State v. Ramos-Saunders, 135 Hawai#i
299, 306, 349 P.3d 406, 413 (App. 2015). The State failed to
provide any evidence or argument to the Circuit Court that
exigent circumstances existed to allow the warrantless search of
the vehicle. At the hearing on Dargis's Second Motion to
Suppress, the parties stipulated to the testimony by Officer
Atkins from the hearing on Dargis's First Motion to Suppress,
during which Officer Atkins mainly testified as to whether there
had been reasonable suspicion for the stop of the vehicle.
During the hearing on Dargis's Second Motion to Suppress, the
Circuit Court asked the State whether Officer Atkins should have
obtained either a warrant or needed exigent circumstances to
seize the pipe under the open view doctrine and the State
replied, "[it] would not agree with that under the Chong case."
The State then continued to rely on an incorrect reading of
Chong, as discussed above, and argued that neither a search
warrant nor exigent circumstances were required to search the
vehicle. Thus, the State waived any argument that there were
exigent circumstances. See Moses, 102 Hawai#i at 456,
77 P.3d at
947 ("[a]s a general rule, if a party does not raise an argument
at trial, that argument will be deemed to have been waived on
appeal").
9
(...continued)
vehicle. Therefore, we consider the pipe under the open view doctrine. See
HRAP Rule 28(b)(7).
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Similarly, the State's contention that the evidence
from Dargis's vehicle would have been inevitably seized was not
raised before the Circuit Court and is waived on appeal. Id.
C. The Circuit Court's Conclusions of Law
Finally, the State argues that the Circuit Court erred
in concluding there were no exigent circumstances and challenges
the Circuit Court's COLs 4, 5, 10, 11, and 12.10 The State
10
The Circuit Court numbered its COLs from 1 through 5, included
subsections "a" through "e" for COL 5, then resumed numbering the remaining
COLs starting from 10. The challenged COLs state:
4. In regard to exigent circumstances, no testimony was
provided by Officer Atkins that Defendant Dargis's car may
be moved or that the pipe observed by Officer Atkins might
be removed or destroyed before a warrant could be obtained.
5. The following supported Defendant's argument that no
exigent circumstances existed:
a. The car was parked along Kamehameha Highway in
Kahuku, which is arguably a rural area of the island of Oahu
which limited the risk of the car or the evidence being
removed.
b. At approximately 4 a.m. in the morning there was
not a lot of traffic or people in the area who could have
disturbed the car.
c. The defendants were alone in the vehicle and both
were arrested. No one else at the time had access to the
car.
d. There was no testimony presented that the pipe was
visible in the car such that someone would be tempted to
remove it.
e. No evidence was presented that an officer could not
have been posted to watch over the car while a warrant was
obtained.
10. There was no realistic threat that the evidence would be
lost while Officer Atkins sought a warrant to search the
car.
11. While it may have been inconvenient to obtain a warrant,
such inconvenience does not justify a violation of
Defendant's right to be free from an illegal search and
seizure.
12. The pipe was illegally seized and therefore is excluded
from evidence. The marijuana that was located during the
seizure of the pipe is "fruit of the poisonous tree" and is
also excluded from evidence.
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contends that there is no evidence to support the majority of the
Circuit Court's COLs and that the COLs are speculative.11
We note that the Circuit Court's determinations in COLs
5 and 10 appear to be more akin to findings of fact.
Nevertheless, even if we assume the record lacks substantial
evidence to support the Circuit Court's findings in this regard,
it was the State's burden to prove exigent circumstances. As the
Hawai#i Supreme Court has explained, an exigent circumstance
exists when the demands of the occasion reasonably call for
an immediate police response. More specifically, it includes
situations presenting an immediate danger to life or serious
injury or an immediate threatened removal or destruction of
evidence. However, the burden, of course, is upon the
government to prove the justification, and whether the
requisite conditions exist is to be measured from the
totality of the circumstances. And in seeking to meet this
burden, the police must be able to point to specific and
articulable facts from which it may be determined that the
action they took was necessitated by the exigencies of the
situation.
Ramos-Saunders, 135 Hawai#i at 306, 349 P.3d at 413 (emphases
added) (ellipses omitted) (quoting Jenkins, 93 Hawai#i at 103,
997 P.2d at 29). As discussed above, the State waived its
arguments in the Circuit Court whether exigent circumstances were
present in this case. The State did not offer any argument that
exigent circumstances were present at the time Officer Atkins
conducted a warrantless search of Dargis's vehicle and Officer
Atkins did not provide any testimony that his search was
necessitated by the exigencies of the situation.
Thus, the State did not meet its burden of establishing
exigent circumstances to justify the warrantless search of the
vehicle. Therefore, even if the record lacks evidence in support
of COLs 5 and 10, the pertinent rulings in COLs 4, 11, and 12 are
not wrong.
11
For example, the State argues there is no evidence to support the
Circuit Court's COL 5.c., that after Dargis and Kawaguchi were arrested, no
one else at the time had access to the car and thus, COL 5.c. is "pure
speculation and is clearly erroneous."
The State also argues COL 5.a. is erroneous because the State of Hawai #i
has a higher motor vehicle theft rate than the rest of the United States on
average and that an automobile in a less populated area is arguably easier to
break into.
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IV. Conclusion
Based on the foregoing, the Order Granting Motion to
Suppress entered on October 23, 2019, by the Circuit Court of the
First Circuit, is affirmed.
DATED: Honolulu, Hawai#i, June 28, 2021.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Brian R. Vincent,
Deputy Prosecuting Attorney, /s/ Katherine G. Leonard
for Plaintiff-Appellant. Associate Judge
Phyllis J. Hironaka, /s/ Clyde J. Wadsworth
Deputy Public Defender, Associate Judge
for Defendant-Appellee.
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