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State v. Quiday

Intermediate Court of Appeals of Hawaii

June 21, 2016

STATE OF HAWAI'I, Plaintiff-Appellee,
v.
BENJAMIN M. QUIDAY, Defendant-Appellant

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 12-1-1644)

          Jon N. Ikenaga Deputy Public Defender for Defendant-Appellant.

          Stephen K. Tsushima Deputy Prosecuting Attorney City and County of Honolulu for Plaintiff-Appellee.

          FOLEY, PRESIDING, J. AND REIFURTH, J. WITH FUJISE, J., DISSENTING AND CONCURRING SEPARATELY

          OPINION

          FOLEY, J.

         Defendant-Appellant 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[1] (circuit court).

         On 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.

         I. BACKGROUND

         On October 9, 2012, Officer Joseph Hanawahine (Officer Hanawahine) was "assigned a narcotic complaint number 12443, which related that there were pakalolo[2] plants being grown at 94-325 Kahualena Street" in Waipahu, Hawai'i (Waipahu Residence).

         On 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[3] side of the residence.

         Later 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 holder.

         On 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.

         Officer Hanawahine conducted a third aerial reconnaissance of the Waipahu Residence before the end of October.

         On October 26, 2012, the District Court of the First Circuit[4] 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 narcotics transactions.

         On 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.

         On 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.

         On 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.), [5]and unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a) (2010 Repl.).[6]

          On 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."

         On July 24, 2013, the circuit court heard argument on the Motion to Suppress Evidence and denied the motion on the record.

         On August 19, 2013, the circuit court issued its "Findings of Fact, Conclusions of Law, and Order Denying Defendant's Motion to Suppress Evidence."

         On 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, ...


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