NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CR. NO. 06-1-0577(1))
On the briefs:
Michael Jay Green, for Defendant-Appellant.
Artemio C. Baxa, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
Fujise, Presiding Judge, Leonard and Reifurth, JJ.
SUMMARY DISPOSITION ORDER
Defendant-Appellant Ronald Jesus Bonilla, Sr. (Bonilla) pleaded guilty to Theft in the Second Degree in violation of Hawaii Revised Statutes (HRS) § 708-831 (Supp. 2011) and Ownership or Possession of Firearm Prohibited in violation of HRS § 134-7(b) (2011). Bonilla was sentenced to a term of five years incarceration for the Theft conviction and ten years incarceration for the Ownership conviction with the sentences to run consecutively. Judgment was entered on September 19, 2012.
On appeal, Bonilla argues a single point: The Circuit Court of the Second Circuit (Circuit Court) erred in denying his motion to suppress evidence because his seizure by the police "constituted an illegal warrantless arrest without probable cause or an illegal 'Terry stop' without reasonable suspicion." In order "[t]o justify an investigative stop, short of an arrest based on probable cause, 'the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1211 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). In the determination of whether the search and seizure is reasonable, the court examines "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry 392 U.S. at 19-20. Hawai'i courts have "repeatedly applied the standard set forth in Terry." State v. Eleneki, 106 Hawai'i 177, 180, 102 P.3d 1075, 1078 (2004) (citation and internal quotation marks omitted). "[T]he reasonable suspicion test under article I, section 7 of the Hawai'i Constitution is generally measured on an objective standard [.]" State v. Bolosan, 78 Hawai'i 86, 94, 890 P.2d 673, 681 (1995) .
Maui Police Department Lieutenant Jayson Rego (Lt. Rego) was in charge of the investigation in this case. By the time that he broadcasted an o'rder over the police radio to stop Bonilla's vehicle, he had interviewed the complaining witness in this case (CW) who reported that he had been abducted from his employer's parking lot by two men posing as police officers; he had been handcuffed and driven across the island in an "older" Nissan Sentra gray or gray/blue in color that contained a black dashboard cover with an embroidered rose over the glove compartment; he was robbed of his cash and identification, beaten and choked by the men, one of whom repeatedly suggested, "just pop him already" when he tried to escape from the vehicle; he then negotiated a deal with the men that, if he were released, he would meet them the following day at the same parking lot and give them $100, 000; when he was released, he was told not to turn around or "we'll put one in your head" and if he did not bring the money "they would kill his whole family in front of him"; the larger of the two men sported a colorful tattoo from fingers to wrist on the back of his right hand and wore two gold rings, one of which was engraved with initials. The next day, shortly before the appointed time, a vehicle CW said "could be" the Nissan was seen, first driving so slowly on Honoapi'ilani highway that seven to eight vehicles passed it, then driving into a parking lot adjacent to the agreed location, then driving very slowly into the employer's lot, circling past CW who was sitting in his truck and parking facing him for a few minutes before leaving the lot; no other vehicle was seen entering the parking lot; that the registered owner of this vehicle was "Ronald Bonilla of Paia."
As the police had specific information from CW that crimes had been committed and tended to show that the person in this vehicle was at least involved, if not responsible for the crimes, they had reasonable suspicion to stop this vehicle. Bonilla contends that the Circuit Court erred when it concluded that the police had reasonable suspicion to stop him because Lt. Rego's knowledge "cannot be imputed to Officer Antonio because Officer Antonio was not acting in concert with Lt. Rego and was not being kept informed of the progress of the investigation." Bonilla cites to Barnes, 58 Haw. at 336-37, 568 P.2d at 1210-11 in support of his position. However, in Barnes, the arresting officer did not know whether the defendant had received the purchase money from the undercover officer nor whether the defendant had obtained the drugs from his supplier--although the arresting officer's assignment was to follow the defendant to confirm this--when he stopped the defendant. Id. Here, Officer Antonio stopped Bonilla on direct orders of Lt. Rego, who was in possession of the information constituting the reasonable suspicion for the stop. Barnes, 58 Haw. at 336 n.l, 568 P.2d 1210 n.l ("Sufficient probable cause for the arrest would also exist where the police department transmits direct orders, based on information which would support an arrest without a warrant, to the arresting officer notwithstanding his lack of personal or first hand knowledge of all the facts.").
Pointing to the facts that after being stopped, he was called out of his vehicle and handcuffed, Bonilla argues that Officer Antonio exceeded the permissible scope of an investigatory stop. If "facts known to the police would warrant a person of reasonable caution to believe that the occupant is armed and dangerous and that the action taken is appropriate" an order out is permitted. State v. Nakachi, 7 Haw.App. 28, 37, 742 P.2d 388, 394 (1987) (citing State v. Joao, 56 Haw. 216, 221, 533 P.2d 270, 274 (1975)). Lt. Rego had been told by CW that the men who abducted him had made multiple death threats against CW and his family. More importantly, although CW did not report seeing a weapon, the threats made against him, "just pop him already" and "if you turn around we'll put one in your head, " implied an ability to shoot CW. "Absolute certainty that the individual accosted is armed is not a necessary predicate to self-protective action[.]" State v. Madamba, 62 Haw. 453, 458, 617 P.2d 76, 79 (1980). It is reasonable to infer that a man who participated in an assault and death threats against CW the day before would appear at the agreed place to collect his money with the intent and means to enforce the agreement made with CW. Lt. Rego's knowledge of the suspects' previous behavior supported the warning in the police broadcast made by Lt. Rego that the occupant of the vehicle may be armed and dangerous.
However, the handcuffing of Bonilla after he was removed from his vehicle bears closer examination. Although handcuffing often heralds an arrest, see State v. Ketchum, 97 Hawai'i 107, 125, 34 P.3d 1006, 1024 (2001) (listing handcuffing as a factor in concluding an arrest has been made), it does not necessarily convert a stop into an arrest. United States v. Salas-Garcia, 698 F.3d 1242, 1249 (10th Cir. 2012) ("The use of handcuffs or placing suspects on the ground during a Terry stop' do[es] not necessarily turn a lawful Terry stop into an arrest under the Fourth Amendment.'" (citation omitted)); United States v. Meadows, 571 F.3d 131 (1st Cir. 2009); United States v. Yang, 286 F.3d 940, 950 (7th Cir. 2002) (case did "not fall into the category of cases where the use of handcuffs transforms an investigatory stop into an arrest."); United States v. Kapperman, 764 F.2d 786, 790 n.4 (11th Cir. 1985), United States v. Taylor, 716 F.2d 701, 709 (9th Cir. 1983).
Nevertheless, the use of handcuffs can amount to an unreasonable seizure, and "[w]hether police conduct was 'reasonably related in scope to the circumstances which justified the interference in the first place, ' Terry, 392 U.S. at 20, . . . is a fact-sensitive inquiry and depends on 'the totality of circumstances in a given case.'" Salas-Garcia, 698 F.3d at 1249 (citation omitted); see also State v. Silva, 91 Hawai'i 80, 81, 979 P.2d 1106, 1107 (1999) (quoting Terry with approval) and State v. Ugalino, 107 Hawai'i 144, 154, 111 P.3d 39, 49 (App. 2005) ("The determination of whether a detention has turned into a de facto arrest requires an objective assessment of the totality of the circumstances."). "In determining whether a detention has turned into a de facto arrest, the court must not only evaluate how intrusive the detention was, but 'whether the methods used [by the police] were reasonable given the specific circumstances. ' " Ugalino, 107 Hawai'i at 154, 111 P.3d at 49 (citation omitted.)
Moreover, while no single factor, in itself, is . dispositive as to when a temporary investigative detention has morphed into an arrest, the potential attributes of "arrest" clearly include such circumstances as handcuffing, leading the detainee to a different location, subjecting him or her to booking procedures, ordering his or her compliance with an officer's directives, using force, or displaying a show of authority beyond that inherent in the mere presence of a police officer, as well as any other event or condition that betokens a significant deprivation of freedom, "such that [an] innocent person ...