STATE OF HAWAI'I, Respondent/Plaintiff-Appellee-Cross-Appellant,
ROBERT J. MCKNIGHT, JR., Petitioner/Defendant-Appellant-Cross-Appellee
[Copyrighted Material Omitted]
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. ICA NOS. 28431 & 28901; CR. NO. 06-1-0352(1).
Benjamin E. Lowenthal, for petitioner.
David M. Louie, Attorney General; Kimberly Tsumoto Guidry, First Deputy Solicitor General; Marissa H.I. Luning, Deputy Solicitor General, for respondents.
By: McKenna, J., with whom Recktenwald, C.J., Nakayama, and Acoba, JJ., and Circuit Judge Trader join. RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND McKENNA, JJ., AND CIRCUIT JUDGE TRADER, IN PLACE OF DUFFY, J., RECUSED.
[131 Hawai'i 382] THE COURT
On July 24, 2006, Robert J. McKnight, Jr. (" McKnight" ) was charged via indictment with Count 1, Electronic Enticement of a Child in the First Degree, in violation of Hawai'i Revised Statutes (" HRS" ) § 707-756 (" Electronic Enticement" ), and Count 2, Promoting Child Abuse in the Third Degree, in violation of HRS § 707-752(1)(a). The charges were severed, and the State of Hawai'i (" State" ) proceeded to trial on Count 1. After a jury trial in the Circuit Court of the Second Circuit (" circuit court" ),  McKnight was convicted of Electronic Enticement.
McKnight appealed his conviction for Electronic Enticement, and the State cross-appealed the suppression of certain evidence, including a statement made by McKnight after he was arrested and evidence seized from his residence pursuant to a misdated search warrant. Some of this evidence pertained to the untried charge of Promoting Child Abuse in the Third Degree. The Intermediate Court of Appeals (" ICA" ) affirmed McKnight's conviction and vacated the circuit court's suppression order.
McKnight raises three questions on certiorari, printed in the order addressed:
. Did the ICA gravely err by disregarding the plain and unambiguous language of a criminal statute and holding that proof that the defendant used a computer or other electronic device was not part of each element of the offense?
2. Did the ICA gravely err in holding that Mr. McKnight waived his right to counsel after he asserted his constitutional and statutory rights and the police made no effort to find a lawyer, denied his right to contact his mother, and wanted to question him further?
. Did the ICA gravely err when it created a new exception to Hawai'i's exclusionary rule by holding that the use of evidence seized pursuant to an invalid warrant does not violate the right to be free from unreasonable searches, seizures, and invasions of privacy guaranteed by the Hawai'i Constitution?
Pursuant to the analysis below, we affirm in part and vacate in part the ICA's Judgment on Appeal, and remand this case for further proceedings consistent with this opinion.
A. Factual Background
The charges against McKnight stemmed from an undercover investigation conducted by the Department of the Attorney General. [131 Hawai'i 383] During the investigation, McKnight began communicating via internet chat with " Chyla Bautista" (" 'Chyla'" ), a persona created by Special Agent Vincente Domingo (" Agent Domingo" ) of the Hawai'i Internet Crimes against Children Task Force. " Chyla" identified herself as a fifteen-year-old girl on O'ahu. Over the course of a month, McKnight communicated with " Chyla" via Yahoo!! Messenger (" Yahoo" ), email, cellular telephone, and home telephone. During these conversations, McKnight discussed meeting with " Chyla" and performing sexual acts with her. He also emailed " Chyla" photographs of himself and displayed himself to " Chyla" masturbating via webcam.
On July 5, 2006, McKnight communicated with " Chyla" via Yahoo to discuss meeting her in person. McKnight purchased an electronic airline ticket and arranged to fly " Chyla" from Honolulu to Maui the following day. He provided " Chyla" with the flight information, told her that he would pick her up from the airport, and gave her a description of his car. On July 6, 2006, the Maui Police Department and the Hawai'i Attorney General's Office observed McKnight's car entering Kahului Airport at the scheduled arrival time and placed McKnight under arrest for electronic enticement of a child.
At the Wailuku Police Station, Agent Domingo advised McKnight of his Miranda rights and asked him to complete a constitutional rights form (AG Form CR-1). McKnight stated that he wanted an attorney and initialled " Yes" next to a question that read " Do you want an attorney now?" Agent Domingo ceased the interview and left the room to confer with Agent Woletta Kim (" Agent Kim" ) regarding whether he could ask McKnight for a description of his residence. The agents, who intended to obtain a search warrant for the residence, concluded that such questioning was permissible because it did not involve interrogating McKnight about the case. Agent Domingo returned to the interview room minutes later with the intention of further questioning McKnight.
When Agent Domingo re-entered the room, McKnight asked to call his mother, but Agent Domingo denied the request.  McKnight asked what was going to happen next, and Agent Domingo responded, " [W]e are going to do a search warrant on [your] residence."  At that point, McKnight stated that he had changed his mind about giving a statement because he had not realized the severity of the crime.
As Agent Domingo began tape-recording their dialogue, however, McKnight again asked if he could call his mother. Agent Domingo responded that he could not promise anything, and it was entirely McKnight's decision whether he wanted to give a statement. The transcript reveals the following exchange:
Robert J. McKnight, Jr.: . . . . Now, will - after this is done, will you allow me to call my mother? Special Agent Domingo: Again, I'm not going to promise you anything.  If you want to give a statement or not, that's strictly up to you. . . . I can't promise you anything. There's no promises or guarantees, okay, at this stage. Robert J. McKnight, Jr.: Okay. Special Agent Domingo: Do you still want to talk to me? Robert J. McKnight, Jr.: Not unless I go let my mother know. Special Agent Domingo: Again, I can't promise you anything. . . . I can't say, okay, I will -- I will let you do this if you give me a statement. . . . There's no promises, no guarantees. If you want to give me a statement -- like you told me that, you know, you changed your mind because you didn't realize the severity of the crime, then fine. But, again, I can't promise you anything. You have got to tell me what you want to do, Robert. [131 Hawai'i 384]
Robert J. Mcknight, Jr.: Go ahead.. . . .Special Agent Domingo: Go ahead what? Robert J. McKnight, Jr.: Continue.
When McKnight agreed to continue, Agent Domingo presented him with a second constitutional rights form, on which McKnight indicated that he did not want an attorney and that he wanted to give a statement. After McKnight completed this form, Agent Domingo proceeded to question McKnight about his conversations with " Chyla" and his intention to meet with her.
That afternoon, Agent Domingo prepared a search warrant for McKnight's residence and vehicle. He presented the warrant application and his affidavit to Judge Simone Polak of the District Court of the Second Circuit. After finding probable cause, Judge Polak signed the warrant, which authorized agents to search McKnight's residence and vehicle for evidence of Electronic Enticement, and to seize computers and electronic storage media (e.g., hard drives, modems, digital files, electronically stored records, computer programs, and photographic equipment). The warrant stated: " This warrant may be served and the search made on or before July 16, 2006, a date not to exceed ten (10) days from the issuance of this search warrant[.]" In a clerical error, however, Judge Polak misdated the warrant as having been signed by her on June 6, 2006.
Agents executed the search warrant that same day at McKnight's residence and seized, among other things, two computer hard drives, thirty-five floppy disks, and twenty-two DVDs. Subsequent imaging of the hard drives revealed approximately one hundred and fifty-five electronic images and two movies of suspected child pornography, archived files of conversations between McKnight and " Chyla," and graphic files of McKnight displaying his genitals.
B. The Charge and Trial
The Circuit Court of the Second Circuit granted McKnight's pretrial motions to suppress the statement he gave after invoking his right to counsel and evidence seized pursuant to the misdated search warrant (" Suppression Order" ).  After its motion to sever the charges was granted, the State proceeded to trial on Count 1, Electronic Enticement in the First Degree, and appealed the court's Suppression Order as it related to Count 2, Promoting Child Abuse in the Third Degree.
At the conclusion of the trial on the Electronic Enticement charge, the court gave the following jury instruction, over McKnight's objections:
[131 Hawai'i 385] In the indictment, Defendant Robert McKnight is charged with the offense of electronic enticement of a child in the first degree.
A person commits the offense of Electronic Enticement of a Child in the First Degree if he intentionally or knowingly uses a computer or any other electronic device to intentionally or knowingly communicate with another person, who represents that person to be under the age of eighteen years, with the intent to promote or facilitate the commission of Sexual Assault in the First Degree or Sexual Assault in the Third Degree, and intentionally or knowingly agrees to meet with another person who represents that person to be a minor under the age of eighteen years, and intentionally or knowingly travels to an agreed upon meeting place at an agreed upon meeting time.
There are five material elements of the offense of Electronic Enticement of a Child in the First Degree, each of which the prosecution must prove beyond a reasonable doubt.
These five elements are:
1. That on or about the 13th day of June 2006, to and including the 6th day of July, 2006, in the County of Maui, State of Hawaii, Defendant intentionally or knowingly used a computer or other electronic device; and
2. That the Defendant intentionally or knowingly used a computer or other electronic device to communicate with another person, who represented that person to be under the age of eighteen years; and
3. That Defendant communicated with the other person with the intent to promote or facilitate the commission of Sexual Assault in the First Degree or with the intent to promote or facilitate the commission of Sexual Assault in the Third Degree; and4. That the Defendant intentionally and knowingly agreed to meet with another person who represented that person to be under the age of eighteen years; and
5. That the Defendant intentionally or knowingly traveled to an agreed upon meeting place at an agreed upon meeting time.
A person commits the felony offense of Sexual Assault in the First Degree if he knowingly engages in sexual penetration with a minor who is at least fourteen years old but less than sixteen years old and the person is not less than five years older than the minor and the person is not legally married to the minor. . . .
A person commits the felony offense of Sexual Assault in the Third Degree if he knowingly engages in sexual contact with a minor who is at least fourteen years old but less than sixteen years old or causes a minor who is at least fourteen years old but less than sixteen years old to have sexual contact with him, and the person is not less than five years older than the minor, and the person is not legally married to the minor. . . .
A jury found McKnight guilty as charged of Electronic Enticement. The circuit court entered its judgment of conviction and sentence of probation on November 14, 2007 (" Judgment" ). McKnight appealed this Judgment.
C. Appeals to the ICA
1. McKnight's Appeal from the Judgment
On appeal, McKnight argued for the first time that the circuit court plainly erred in failing to instruct the jury that the State was required to prove that he used a computer or electronic device to accomplish each of the three elements of Electronic Enticement, including agreeing to meet with " Chyla" and traveling to Kahului airport.
[131 Hawai'i 386] The State argued, inter alia, that McKnight's interpretation of the statute would be contrary to legislative intent and lead to an absurd result because it was not possible to travel via a computer and anyone who traveled to a meeting via car, airplane, or foot would be immune from prosecution. The State did not explain how imposing a computer-use requirement on the agreement to meet would render the statute absurd.
In response, McKnight contended that the plain language of the statute required the use of a computer or electronic device as to every element, and that this interpretation was not absurd because the State could have convicted him if he had used a computer to purchase an airline ticket to travel to O'ahu to meet with " Chyla."
2. State's Appeal from the Suppression Order
In its appeal from the Suppression Order, the State argued that the court erred in suppressing McKnight's statement because McKnight had initiated communication with Agent Domingo, and had voluntarily and knowingly waived his Miranda rights before being questioned. In addition, it maintained that Agent Domingo's failure to make any efforts to contact an attorney and his denial of McKnight's requests to contact his mother did not amount to a violation of McKnight's constitutional or statutory rights. The State also argued that the court erred in suppressing evidence seized pursuant to the misdated search warrant because the error had been committed by the issuing judge rather than law enforcement agents, McKnight was not prejudiced where the search was otherwise supported by probable cause, the public's interest in obtaining evidence of crimes against children outweighed the marginal benefits of suppressing such evidence, and a narrow application of the good faith exception was warranted under such circumstances.
McKnight, on the other hand, argued that his statement was not voluntarily given because he had unequivocally invoked his right to counsel, his inquiry as to what was going to happen next did not evidence a desire to reinitiate a discussion regarding the investigation, and Agent Domingo's statement about executing a search warrant was reasonably likely to elicit an incriminating response. McKnight also argued that the error in the issuance date of the search warrant rendered it invalid, and execution of the warrant constituted an invasion of his right to privacy.
3. The ICA's Opinion
In a published opinion, the Intermediate Court of Appeals (" ICA" ) affirmed McKnight's conviction under HRS § 707-756, vacated the circuit court's Suppression Order, and remanded the case for further proceedings.
With respect to McKnight's appeal, the ICA concluded that the circuit court did not plainly err in failing to instruct the jury that HRS § 707-756 required the State to prove that McKnight used a computer or other electronic device to agree to meet " Chyla" or to travel to the agreed-upon meeting place at the agreed-upon time. It concluded that construing the statute otherwise would lead to illogical and inconsistent results by limiting application of the statute to atypical situations.
With respect to the State's appeal, the ICA overruled its prior decision in
State v. Endo, 83 Hawai'i 87, 924 P.2d 581 (App. 1996),  and concluded that a clerical error in the issuance date of the search warrant did not require [131 Hawai'i 387] suppression of evidence seized pursuant thereto because suppressing the evidence under such circumstances would neither deter governmental misconduct or protect citizens' privacy rights in such circumstances. In addition, the ICA concluded that McKnight's custodial statement to Agent Domingo should not have been suppressed because, although McKnight had earlier invoked his right to counsel, he then reinitiated communication with agents and voluntarily waived his Miranda rights.
PART I: HRS § 707-756 DOES NOT REQUIRE THE STATE TO PROVE THAT MCKNIGHT USED A COMPUTER OR ELECTRONIC DEVICE TO TRAVEL TO THE AGREED-UPON MEETING PLACE OR TO AGREE TO MEET WITH " CHYLA"
(By: McKenna, J., with whom Nakayama and Acoba, JJ., join)
We construe the Electronic Enticement statute pursuant to established principles of statutory construction, and hold that the State was not required to prove that McKnight used a computer or other electronic device either (1) to travel to the agreed-upon meeting place at the agreed-upon time, or (2) to agree to meet with a person representing him- or herself to be under the age of eighteen years. We therefore affirm McKnight's conviction for Electronic Enticement under HRS § 707-756.
At the time pertinent to this case, HRS § 707-756 (Supp. 2006) provided, in relevant part:
(1) Any person who, using a computer or any other electronic device:
(a) Intentionally or knowingly communicates:
(i) With a minor known by the person to be under the age of eighteen years;
(ii) With another person, in reckless disregard of the risk that the other
person is under the age of eighteen years, and the other person is under the age
of eighteen years; or
(iii) With another person who represents that person to be under the age of
eighteen years; and
(b) With the intent to promote or facilitate the commission of a felony:
(i) That is a murder in the first or second degree;
(ii) That is a class A felony; or
(iii) That is an offense defined in section 846E-1;
Agrees to meet with the minor or with another person who represents that person to be a minor under the age of eighteen years; and (c) Intentionally or knowingly travels to the agreed upon meeting place at the agreed upon meeting time; is guilty of electronic enticement of a child in the first degree.
McKnight argues that a conviction for Electronic Enticement requires the State to prove that he used a computer or other electronic device not only to communicate with a person who represents him- or herself to be under the age of eighteen years, but also (1) to travel to the agreed-upon meeting place at the agreed-upon meeting time, and (2) to agree to meet the minor, with the intent to promote or facilitate the commission of a felony under HRS § 846E-1. The State, on the other hand, maintains that HRS § 707-756 cannot be interpreted to require the use of a computer or electronic device to travel to a meeting place, because such a construction would create an absurd result, inconsistent with the legislature's purpose.
" The interpretation of a statute is a question of law reviewable de novo."
State v. Kotis, 91 Hawai'i 319, 327, 984 P.2d 78, 86 (1999) (citation, brackets, and ellipses omitted). We view HRS § 707-756 as a whole and construe the statute in accordance with the legislature's overall purpose to give each part a sensible and intelligent effect. State v. Davis, 63 Haw. 191, 196, 624 P.2d 376, 380 (1981). Based on the analysis below, we [131 Hawai'i 388] conclude that: (1) requiring the use of a computer or other electronic device to travel to the agreed-upon meeting place at the agreed-upon time would render the statute absurd in meaning; and (2) requiring the use of a computer or other electronic device to agree to meet with the minor would render the statute structurally incoherent as a whole. We hold that, with respect to the computer-use requirement, the State was required to prove that McKnight used a computer or electronic device only to communicate with " Chyla" ; therefore, the circuit court did not plainly err by not instructing the jury that the State must prove McKnight used a computer or electronic device to agree to meet with " Chyla" and to travel to the agreed-upon meeting place at the agreed-upon time.
A. Legislative History of HRS § 707-756
" When construing a statute, [this court's] foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself."
Kotis, 91 Hawai'i at 327, 984 P.2d at 86 (citation omitted). In addition, " we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose." Id. (citation omitted). In determining the purpose of a statute, the court may look to the relevant legislative history to discern the underlying policy, which the legislature sought to promulgate.
State v. Wells, 78 Hawai'i 373, 376, 894 P.2d 70, 73 (1995).
[W]e have rejected an approach to statutory construction which limits us to the words of a statute, for when aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no rule of law which forbids its use, however clear the words may appear on superficial examination. Thus, the plain language rule of statutory construction does not preclude an examination of sources other than the language of the statute itself even when the language appears clear upon perfunctory review. Were this not the case, a court may be unable to adequately discern the underlying policy which the legislature seeks to promulgate and, thus, would be unable to determine if a literal construction would produce an absurd or unjust result, inconsistent with the policies of the statute.
Keliipuleole v. Wilson, 85 Hawai'i 217, 221, 941 P.2d 300, 304 (1997) (citations, brackets, and ellipses omitted).
HRS § § 707-756 and -757 were first introduced as House Bill 2426 during the 2002 legislative session. The articulated purpose of these statutes was " to deter crimes against minors by . . . creating two new offenses of first and second degree electronic enticement of a child, which prohibit the use of a computer or other electronic device to lure a minor to a meeting with intent to commit a felony[.]" H. Stand. Comm. Rep. No. 417, in 2002 House Journal, at 1399 (emphasis added). Specifically, the legislature expressed a concern regarding the predatory use of computers to target children, and it found that existing laws failed to address the use of new technologies to entice children into meetings for the purposes of committing crimes against them. S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384. It noted, however, that one method of investigation which had proven successful for targeting such crimes was the use of sting operations in which a police officer posed as a minor in chat rooms or e-mail communications with the sex offender. Id.
The Senate Standing Committee explained,
Your Committee finds that the use of the Internet to entice children
into meetings has become widespread. Current laws do not specifically address
using computers to communicate with minors for purposes of committing crime.
This measure would close that loophole, and would allow sex offenders to be
investigated and prosecuted before they commit a kidnapping or other crime.
One method of investigation that has been successful in arresting sex
offenders before a child is hurt has been sting operations in which the sex
offender's intended victim is actually a police officer posing as a minor in
chat rooms or E-mail communications. Once the sex offender agrees to meet the
child and goes to the meeting place, the offender is arrested.
[131 Hawai'i 389] However, the sex offender's defense to attempted sexual assault is often the defense of impossibility because the person posing as a child was not actually a child. Therefore, it is important to criminalize the sex offender's predatory computer behavior, so that the offender can be prosecuted for what the offender has actually done, as opposed to what the offender might have been trying to do.
S. Stand. Comm. Rep. No. 2867, in 2002 Senate Journal, at 1384 (emphasis added). Thus, the introduction of these bills enabled the State to prosecute predatory computer behavior where an individual engaged in online communications with a minor, agreed to meet with that person, and physically traveled to the specified meeting place. Id. See also S. Stand. Comm. Rep. No. 3131, in 2002 Senate Journal, at 1498.
The statute that was ultimately enacted, HRS § 707-756, contained three distinct conduct elements: (1) the initial communication with the minor, (2) the agreement to meet with intent to commit a felony, and (3) the act of physically traveling to the agreed-upon place at the agreed-upon time. Viewing the statute in light of the underlying policy which the legislature sought to promulgate, it is apparent that each of these elements served a distinct purpose: requiring that the defendant utilize a computer or electronic device to communicate with a minor addresses the legislature's concern regarding the use of new technologies to target children; requiring that the agreement to meet be made with felonious intent ensures that the defendant has a culpable state of mind at the time he entices the child into meeting; and requiring that the defendant travel to an agreed-upon meeting place at an agreed-upon meeting time ensures that an individual is prosecuted only in situations where his behavior poses an actual physical threat to the child.
B. Travel to an Agreed-Upon Meeting Place
McKnight argues that the circuit court erred in failing to instruct the jury that the State was required to prove that he used a computer or electronic device to travel to an agreed-upon meeting place at an agreed-upon meeting time. We disagree and conclude, as the ICA did, that extending the computer-use requirement to the act of traveling would be absurd.
Pursuant to established principles of statutory construction, the court will depart from a literal reading of a statute when the plain language results in an " absurd or unjust result" and is " clearly inconsistent with the purposes and policies of the statute."
State v. Park, 55 Haw. 610, 614, 525 P.2d 586, 589-90 (1974). See also Keliipuleole, 85 Hawai'i at 221-22, 941 P.2d at 304-05 (" [A] rational, sensible and practical interpretation of a statute is preferred to one which is unreasonable or impracticable, because the legislature is presumed not to intend an absurd result, and legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality." (citations, internal quotation marks, and brackets omitted)). Even where a statute appears unambiguous, the court may deviate from a literal application of the language in order to avoid absurdity and give effect to the legislature's intended purpose. State v. Ogata, 58 Haw. 514, 518, 572 P.2d 1222, 1225 (1977).
See, e.g., State v. Stan's Contracting, 111 Hawai'i 17, 27-28, 137 P.3d 331, 341-42 (2006) (holding that a narrow interpretation of the word " fraud" in tolling statute would lead to absurd and unjust results);
State v. Haugen, 104 Hawai'i 71, 76-77, 85 P.3d 178, 183-84 (2004) (holding that, ...