FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO.
Ikenaga Deputy Public Defender for Defendant-Appellant.
Stephen K. Tsushima Deputy Prosecuting Attorney City and
County of Honolulu for Plaintiff-Appellee.
PRESIDING, J. AND REIFURTH, J. WITH FUJISE, J., DISSENTING
AND CONCURRING SEPARATELY
Benjamin M. Quiday (Quiday) appeals from the "Findings
of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Suppress Evidence" entered on
August 19, 2013 in the Circuit Court of the First
Circuit (circuit court).
appeal, Quiday contends the circuit court erred in denying
his motion to suppress evidence and by not allowing him to
present evidence on his motion to suppress evidence.
October 9, 2012, Officer Joseph Hanawahine (Officer
Hanawahine) was "assigned a narcotic complaint number
12443, which related that there were pakalolo plants being
grown at 94-325 Kahualena Street" in Waipahu,
Hawai'i (Waipahu Residence).
October 22, 2012, by helicopter, Officer Hanawahine conducted
an aerial reconnaissance of the Waipahu Residence from an
estimated height of 420 feet. Officer Hanawahine attested
that he observed between twenty to twenty-five plants
"with the color and structure resembling that of
marijuana plants" in two rows on the Ewa side of the
on October 22, 2012, Officer Hanawahine conducted ground
reconnaissance of the Waipahu Residence. He attested that the
residence was the same residence that he had observed from
the helicopter but that he was unable to see the plants from
Kahualena Street. Officer Hanawahine checked with the State
of Hawai'i Narcotics Enforcement Division (NED) to
determine whether the Waipahu Residence was an authorized
location to cultivate medical marijuana or if anyone
associated with the address was a medicinal marijuana permit
October 23, 2012, Officer Hanawahine again conducted an
aerial reconnaissance of the Waipahu Residence at a height
approximately 420 feet above ground and made the same
observations as he did the previous day. Also on October 23,
2012, NED informed Officer Hanawahine that the Waipahu
Residence was not listed as an authorized location to
cultivate medicinal marijuana nor were any of the names
associated with that address registered as current medicinal
marijuana patients with valid medicinal marijuana permits.
Hanawahine conducted a third aerial reconnaissance of the
Waipahu Residence before the end of October.
October 26, 2012, the District Court of the First
Circuit approved a search warrant, S.W. 2012-261,
for the Waipahu Residence in order to search for marijuana
plants, related paraphernalia, and other evidence of
October 28, 2012, Sergeant Gregory Obara (Sergeant Obara)
conducted a ground reconnaissance of the Waipahu Residence
and observed a man in the front Ewa corner of the property
appearing to be watering plants. Sergeant Obara saw the same
man a short time later watering plants on the Ewa side of the
residence. The plants were shielded from street view by
gates, walls, and fences surrounding the property.
October 29, 2012, the Honolulu Police Department (HPD)
executed the search warrant and found Quiday in possession of
marijuana with an aggregate weight of over three pounds, as
well as other drug paraphernalia. Sergeant Obara identified
Quiday as the man he saw watering plants the day before. HPD
recovered twenty plants resembling marijuana plants from the
area where Sergeant Obara observed Quiday watering plants.
November 1, 2012, Plaintiff-Appellee State of Hawai'i
(State) charged Quiday with the offenses of commercial
promotion of marijuana in the second degree, in violation of
Hawaii Revised Statutes (HRS) § 712-1249.5(1)(a) (2014
Repl.), and unlawful use of drug paraphernalia, in
violation of HRS § 329-43.5(a) (2010
April 8, 2013, Quiday filed "[Quiday's] Motion to
Suppress Evidence" (Motion to Suppress Evidence). Quiday
sought to exclude "any and all evidence seized from his
home, as a result of the execution of Search Warrant S.W.
2012-261" because: (1) "[t]he anonymous tip
triggering the investigation was not reliable"; (2)
"Officer Hanawahine's resulting illegal aerial
search violated [Quiday's] reasonable expectation of
privacy"; and (3) "Officer Hanawahine omitted from
his affidavit in support of the search warrant relevant,
significant findings relating to his own credibility."
24, 2013, the circuit court heard argument on the Motion to
Suppress Evidence and denied the motion on the record.
August 19, 2013, the circuit court issued its "Findings
of Fact, Conclusions of Law, and Order Denying
Defendant's Motion to Suppress Evidence."
August 26, 2013, Quiday filed a motion for the circuit
court's permission to file an interlocutory appeal. The
circuit court granted Quiday's motion on September 6,