NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. No. 11-1-1681).
Sonja P. McCullen, Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellant.
Evan S. Tokunaga, Deputy Public Defender, for Defendant-Appellee.
Foley, Presiding Judge and Fujise, J., with Ginoza, J., concurring separately
SUMMARY DISPOSITION ORDER
Plaintiff-Appellant State of Hawai'i (State) appeals from the May 21, 2012 "Findings of Fact, Conclusions of Law, and Order Granting Motion to Suppress Evidence" (Order) and the July 19, 2012 "Order Denying State's Motion for Reconsideration of [Order]" (Reconsideration Order) issued by the Circuit Court of the First Circuit (Circuit Court).
Through these two orders, the Circuit Court granted Defendant-Appellee Richard K. Myers's (Myers) Motion to Suppress Evidence (Motion to Suppress), in which Myers moved the court to suppress (1) a "clear[, ] plastic zip lock bag" (ziplock bag) containing crystal methamphetamine (crystal meth), seized by the police on November 21, 2011; and (2) Myers's statement which he made at the time the police seized the ziplock bag.
On appeal, Plaintiff-Appellant State of Hawai'i (State) argues that the Circuit Court erred in granting Myers's Motion to Suppress because, inter alia Myers did not assert a reasonable expectation of privacy in either the ziplock bag or the red shopping bag (shopping bag) in which he dropped the ziplock bag. After a careful review of the points raised and arguments made by the parties, the relevant authority and the record, we resolve the State's appeal as follows, vacate the Order and Reconsideration Order and remand for further proceedings.
The uncontested findings of fact made by the Circuit Court are as follows:
1. On November 21, 2011, at approximately 9 a.m., Officer Tomita and Officer Ozoa were patrolling Kamalii Park on segways.
2. From approximately ten (10) feet away, Officer Tomita observed [Myers] seated with his back against a planter; [Myers] appeared to be shaking [the ziplock bag] which was approximately 1-2 square inches in size.
3. [Myers] was holding the [ziplock bag] between the thumb and index finger of his left hand.
4. Officer Tomita observed the [ziplock bag] to contain a white crystalline substance which -- based up on Officer Tomita's training and experience -- appeared to be [crystal meth].
5. Upon making this observation, Officer Tomita approached [Myers] on his segway.
6. While Office [r] Tomita was approaching [Myers], [Myers] looked at Officer Tomita and then dropped the [ziplock bag] into the [shopping ...