NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO. 11-1-0602(1))
Peter A. Hanano, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellant.
Phyllis J. Hironaka, Deputy Public Defender, for Defendant-Appellee.
Nakamura, C.J., Fujise and Leonard, JJ.
The State of Hawai'i (State) appeals from the March 29, 2012 Findings of Fact, Conclusions of Law, and Order Granting Defendant's Motion to Suppress Evidence (Order) entered by the Circuit Court of the Second Circuit (Circuit Court)
The State argues that it was error to conclude Defendant-Appellee Clifford C. Davidsen (Davidsen) "retained an expectation of privacy" in an area into which Davidsen invited the general public and maintains that Davidsen's consent was not vitiated by the use of a ruse by the police.
The facts in this case are not in dispute. On September 7, 2011, James Howlett (Howlett) discovered that his storage unit had been broken into and that several items belonging to him and paintings belonging to Caro Walker (Walker) had been stolen. The losses were reported to the police and Howlett located multiple advertisements in the Maui Bulletin offering items for sale similar in description to those stolen. All of these ads included the same contact phone number. Based on this information, Walker's boyfriend met with the seller and observed what appeared to be some of Howlett's stolen items. Walker subsequently met with the seller, whom she identified as Davidsen, and while she was unable to identify any of the artwork that was present as hers, Davidsen's description of another painting that he was selling did match one of Walker's stolen paintings.
Detective Ericlee Correa (Det. Correa) was assigned to the case on September 27, 2011, and Walker advised him that she knew where her paintings could be and wanted him to accompany her to retrieve them. Walker initiated a plan to go to Davidsen's residence on September 28, 2011, and to have Det. Correa pose as her boyfriend. Howlett and his wife and another detective joined Walker and Det. Correa, but agreed to wait outside the Davidsen residence until given a signal to enter. No search warrant was obtained before the visit. Walker called ahead to make sure Davidsen would be home and indicated to Davidsen that she wanted to stop by with her boyfriend. When they approached Davidsen's residence, Walker called to inform him that they were there. Det. Correa was dressed casually, with nothing to identify him as a police detective. The front door to the residence was already open, and Davidsen, who was talking on his phone, waved Walker and Det. Correa inside.
Before entering the house, Det. Correa identified one of the stolen paintings. When Davidsen finished his call, Det. Correa advised Davidsen that he was a police detective and that several of the paintings that were offered for sale had been reported stolen. Davidsen stated that he had come into possession of the paintings at a garage sale and on Det. Correa's request, granted Walker and the Howletts permission to look around the house for their stolen property. Walker and the Howletts recovered several of their stolen items.
When recovering some of his property, Howlett discovered bolt cutters and a crowbar he suspected were used to break into his storage container. Det. Correa thereafter advised Davidsen that he was a suspect and informed him that he would be questioned at a later date. Det. Correa did not personally instruct or direct the search of the residence and did not participate in the search. A warrant for a subsequent search was later obtained.
On November 8, 2011, the State filed a complaint against Davidsen for the following eleven crimes: (1) Theft of Credit Card in violation of Hawaii Revised Statutes (HRS)§ 708-8102 (1993); (2) Identity Theft in the Third Degree in violation of HRS § 708-839.8 (Supp. 2012); (3) Fraudulent Use of a Credit Card in violation of HRS § 708-8100 (1993 and Supp. 2012); (4) Theft in the Fourth Degree in violation of HRS § 708-833 (1993); (5) Theft of a Credit Card in violation of HRS § 708-8102; (6) Identity Theft in the Third Degree in violation of HRS § 708-839.8; (7) Fraudulent Use of a Credit Card in violation of HRS § 708-8100; (8) Theft in the Third Degree in violation of HRS § 708-832 (Supp. 2012); (9) Theft in the Second Degree in violation of HRS § 708-831 (Supp. 2012); (10) Theft in the Second Degree in violation of HRS § 708-831; and (11) Theft in the Second Degree in violation of HRS § 708-831.
On December 14, 2011, Davidsen moved to suppress evidence and on March 29, 2012, the Circuit Court entered the Order granting Davidsen's ...