CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-11-0000392; CR. NO. 09-1-1864)
Dwight C.H. Lum for petitioner
Stephen K. Tsushima for respondent
Recktenwald, C.J., Nakayama, McKenna and Pollack, JJ.
ORDER REJECTING APPLICATION FOR WRIT OF CERTIORARI
Petitioner/Defendant-Appellant Allen Tavares' Application for Writ of Certiorari filed on November 4, 2013, is hereby rejected.
DISSENT TO REJECTION OF CERTIORARI
Respectfully, I would accept the Application for Writ of Certiorari (Application) because this case presents serious questions of law justifying further review. The first is whether the police had reasonable suspicion to stop the car of Petitioner/Defendant-Appellant Allen Tavares (Tavares). The second is whether there was substantial evidence that would lead a reasonable and cautious person to conclude that Tavares had constructive possession of the gun recovered from beneath his driver's seat.
It is axiomatic that "[i]n regard to highway stops . . '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. Heapy, 113 Hawai'i 283, 291, 151 P.3d 764, 772 (2007) (quoting State v. Eleneki, 106 Hawai'i 177, 180, 102 P.3d 1075, 1078 (2004)). A vehicular seizure or stop based on reasonable suspicion must be tied to "'some objective manifestation that the person stopped is, or about to be, engaged in criminal activity.'" Id. at 286, 151 P.3d at 767 (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). In order for a stop to be permissible, "reasonable suspicion must be present before [the] stop." Id. (internal quotation marks omitted). "The mere possibility of criminal activity does not satisfy the constitutional requirement . . . that 'legal wrongdoing' was taking place or was about to take place." Id. at 293, 151 P.3d 774 (internal citations and emphasis omitted) (quoting State v. Prendergast, 103 Hawai'i 451, 454, 83 P.3d 714, 717 (2004)).
Officer Michael Lucas-Medeiros (Officer Lucas-Medeiros) acknowledged that Tavares was not speeding, driving erratically, or swerving prior to the stop. The only offered basis for stopping the car was Officer Medeiros's observation of a "flash of light", which the officer "thought was a crack in the front windshield" and a decal on the passenger's side of the Acura's windshield. However, as Petitioner contends, the photographs of the front windshield indicate that the "FOX" decal was on the passenger's side, and there was open space above, below, and to the sides of the sticker. Tavares himself testified that it did not block his view. As Tavares contends, there were no specific facts to suggest that Tavares' driving was impaired by the decal, such as hesitant or erratic driving.
In the instant case, the ordinance purportedly involved may not apply, since there were no facts indicating that the decal obstructed Tavares' view. See People v. Johnson, 893 N.E. 2d. 275, 280 (111. App. 2008) (holding that an officer's belief, after "a fleeting view in the dark" that a pair of plastic cherries hanging from the rear view mirror were a material obstruction was not justifiable, and therefore the officer did not have a reasonable basis for a stop); see also People v. Arias, 159 P.3d 134, 138 (Colo. 2007) (holding that, to justify a traffic stop, "there must be more than a possibility that the driver's vision is obstructed"). Therefore, it is seemingly wrong to conclude that the officers had reasonable suspicion to stop the vehicle. A mere "instinct" or "thought" is not enough to stop and seize a vehicle for an alleged equipment matter that violates the law. Because the stop could be illegal, the fruit of the stop, here the weapon recovered, would be subject to suppression. Heapy, 113 Hawai'i at 286, 151 P.3d at 767.
Petitioner points out that in deciding that there was substantial evidence that Tavares had constructive possession of the weapon found ...