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State v. Phillips

Supreme Court of Hawaii

September 30, 2016

STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee,
v.
LINCOLN PHILLIPS, Respondent/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000020; CR. NO. 08-1-1430)

          Stephen K. Tsushima for petitioner.

          Randall K. Hironaka for respondent.

          McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE NISHIMURA, IN PLACE OF ACOBA, J., RECUSED, AND NAKAYAMA, J., CONCURRING AND DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

          OPINION

          POLLACK, J.

         I. INTRODUCTION

         The Intermediate Court of Appeals (ICA) vacated the conviction of Lincoln Phillips for the attempted murder of his wife Tara Phillips and remanded the case for a new trial. In reaching this result, the ICA adopted an interpretation of the plain view doctrine that is contrary to this court's prior decisions and the protections and limits of the rights guaranteed under Article I, Section 7 of the Hawai'i Constitution. A proper application of these principles requires the reversal of the ICA's judgment on appeal and affirmance of the trial court's amended judgment of conviction.

         II. BACKGROUND

         A. Initial investigation

         In the early morning of September 3, 2008, police dispatch received a call from Lincoln Phillips summoning police to his home. Phillips told the operator that "when he came home he found injuries to his wife's head." Honolulu Fire Department (HFD) personnel, emergency medical technicians (EMT), and Officer Stanley Collins of the Honolulu Police Department (HPD) were the earliest first responders to arrive at Phillips' house.

         HPD Officer Collins received the dispatch at about 3:54 a.m. The officer "had no idea" of the identity of the victim or suspect. When Officer Collins arrived at the residence, he saw Phillips "in his garage area." According to Officer Collins, Phillips seemed frantic and was "motioning [him] to come forward" into the "garage area." Officer Collins understood the motioning to be "inviting me" and as an indication that "this is the place you should come, this is the place you should be."[1] Upon entering the garage, Officer Collins asked Phillips what happened. Phillips responded, "It's my wife, it's my wife, " and informed Officer Collins that his wife, Tara Phillips (Tara), was upstairs in the bedroom. While Phillips remained in the garage area, Officer Collins went upstairs and saw Tara lying on a bed being attended by members of the HFD. After spending "maybe a few seconds" upstairs, Officer Collins returned to the garage, where Phillips had remained, and Officer Collins "made contact with Phillips and tried to get him calm."

         HPD Officer Robert Frank arrived at approximately 4:03 a.m. and joined Officer Collins and Phillips in the garage. Officer Frank noted that Phillips "was sweating profusely, pacing back and forth." Phillips told the officers that "he couldn't sleep. So he got in his car, drove to the beach[] then [to] the park at the end of Fort Weaver Road, [and] stopped at 7 Eleven." When he "arrived home, [he] went upstairs and . . . found his wife bleeding from her head."

         Officer Collins "tried to get [Phillips] calm" by opening the door of Tara's vehicle and having him sit in the passenger seat. Officer Collins asked him what happened, and Phillips explained that "when he went upstairs initially he sat on the futon" and "the lights were out." "When he heard his wife having difficulty breathing that's when he turned on the lights and discovered her injuries."

         Phillips said that the garage door was closed when he drove off early that morning and open when he returned home. Phillips explained that the garage door was defective: "it would close with the remote, but it would not open with the remote." Phillips demonstrated the garage door remote to show the officers that it was defective. Phillips closed the garage door with the remote, and the officers "had to open it from the inside panel of the garage" with a wall switch.

         HPD Sergeant (Sgt.) Lloyd Keliinui arrived at Phillips' residence at approximately 4:00 a.m. Sgt. Keliinui was told by other officers that Phillips had come home and had "found out that his wife had been assaulted." Based on the information that "somebody came in" to the home, Sgt. Keliinui was concerned that there was "somebody out there unidentified, possibly roaming the neighborhood, with some kind of weapon." Sgt. Keliinui "instructed some of the initial officers to canvas the area" and to "check for possible suspects or witnesses" and evidence.

         HPD Officer John Tokunaga arrived at approximately 4:12 a.m. Sgt. Keliinui instructed him to "check the area" "in the immediate vicinity of the residence" "for possible weapons that may have been used." Sgt. Keliinui did not inform Officer Tokunaga of the general facts of the case. Officer Tokunaga did not know "what kind of possible weapons [he] was looking for." He was looking for any "possible evidence that may have been related to the victim's injuries." He was not aware of "anyone in particular [that was] a suspect." Officer Tokunaga did not find any weapon or other possible evidence that may have been related to Tara's injuries outside of the residence.

         Sometime before 4:30 a.m., Officer Tokunaga observed a hammer "on a cooler" inside the garage, "on the left side of the garage as you enter." Officer Tokunaga "believe[d] there was a spot of blood on top of the hammer, " which indicated that it was a "possible weapon." Officer Tokunaga also observed "water on the handle area of the hammer" but not on the coolers. At the time Officer Tokunaga observed the hammer, Officers Frank and Collins were also in the garage with Phillips. Officer Tokunaga informed Sgt. Keliinui and Officer Corrine Rivera about the hammer that he had found.

         During the initial investigation, Phillips' garage served as an impromptu center for the police response. Officer Collins was "going back and forth" from the garage, trying to keep Phillips "calm"; "EMS [was] arriving, and the sector sergeant [was] arriving"; and Officer Ahn was with Phillips in the garage. HPD officers "were coming in and out" of the garage, and "there was a lot of commotion going on because the garage had kind of been the central place of the investigation."

         At some point during the "initial check of the residence" by the police, Officer Frank blew his nose into a napkin and "discarded it in the garbage can" that was "in the garage."[2] Officer Frank lifted the lid of the garbage container "about 45 degrees" to discard the napkin, and observed rolled up mesh clothing among discarded food boxes inside the garbage container. The clothes were "just sitting in the garbage container, " "on the same level" of the food boxes. Officer Frank did not "disturb the contents of that trash can at all." Because the clothing "was rolled up, " Officer Frank did not notice anything unusual about the clothes. Officer Frank informed Sgt. Keliinui about the clothing "when [he] got the chance to see him."

         HPD Officer Dennis Ahn arrived at approximately 4:30 a.m. and entered the open garage where he observed Officer Collins, Sgt. Keliinui, and Phillips. Officer Collins instructed Officer Ahn to stay with Phillips, who "was the only witness at the time." Officer Ahn was assigned to watch Phillips and help him "to just remain calm, and just to stay put until a detective would come and get a statement from him." Later, Officer Ahn asked Phillips to move into the living room so that he would be more comfortable and could see Tara as she was being carried out, and because he was "obstructing the walkway between walking in the garage and into the home."

         At approximately 5:15 a.m., Officer Ahn asked Phillips to accompany him "to the Kapolei station, because a detective would like to get his statement." Officer Ahn informed Phillips "that he was not under arrest." "Phillips was very cooperative. And he said yes." Officer Ahn and Phillips arrived at the Kapolei Police Station at approximately 5:30 a.m. where Phillips was interviewed later that morning. At the end of the interview, Phillips "just want[ed] to go see [his] wife, " and he was permitted to leave the station.

         At approximately 6:05 a.m., Evidence Specialist Jasmina Eliza from the HPD Scientific Investigation Section arrived at Phillips' home. She was directed to photograph and recover the hammer. Specialist Eliza recovered the hammer at approximately 9:35 a.m. At the same time, she also recovered a man's shirt as well as a man's pants from the trash can located in the garage.

         At 12:25 p.m., HPD Detective Sheryl Sunia prepared an Affidavit in Support of a Search Warrant (Affidavit). In her Affidavit, Sunia requested a warrant allowing a search of, inter alia, Phillips' residence and car, along with receptacles, bags, and containers found within.[3]

         Upon a finding that there was probable cause to believe that "evidence of Attempted Murder in the Second Degree . . . and/or Burglary in the First Degree" was present, a district court judge issued a search warrant for Phillips' car and residence and "all closed compartments and/or containers" therein at approximately 7:45 p.m. that evening. Among other items, the warrant allowed HPD officers to search Phillips' residence for "[a] plastic garbage can, including its contents, located in the enclosed garage" as well as "all items of evidence, including, but not limited to . . . articles of clothing . . . [and] tools."

         B. Circuit Court

         On September 10, 2008, Phillips was indicted on the charge of attempted murder in the second degree in violation of Hawai'i Revised Statutes (HRS) §§ 705-500, [4] 707-701.5, [5] and 706-656.[6] Phillips pleaded not guilty to the charge on September 15, 2008, in the Circuit Court of the First Circuit (circuit court).

         1. Motion to Suppress

         On April 24, 2009, Phillips filed a Motion to Suppress Evidence and Statements (motion).[7] Phillips sought to suppress from admission into evidence the hammer recovered from his garage and a gray "men's shirt with orange piping and gray men's shorts with blue lateral stripes, " recovered from a trash can located in his garage. Phillips asserted that the hammer and the clothing "were recovered without consent and without a warrant, " in violation of his state and federal constitutional rights.

         In his argument to the court on the motion, defense counsel acknowledged that "the hammer's in plain view, there's no dispute about that, " but argued that the HPD could not seize the hammer absent "exigent circumstances for the warrantless seizure." Regarding the clothing, defense counsel argued that "whether or not . . . [it] was discovered inadvertently or was in plain view, " there was both "a search and a seizure problem, " particularly in light of the clothing being included as a basis for the search warrant.

         The State asserted that "[h]aving invited the police into his home to investigate a possible crime, " Phillips at best only had "a diminished privacy right" and, hence, could not complain "that the police were unlawfully in his home." According to the State, it was "uncontroverted" that the hammer was discovered in plain view and that "the case law is clear, " under State v. Jenkins, 93 Hawai'i 87, 997 P.2d 13 (2000), that if "an item is in plain view, [seizure] doesn't violate a person's right[s]." The State argued that the clothes were admissible because "there was no search" when Officer Frank "opened the trash can, " threw the napkin in, and "saw the clothes" in "plain view." The State maintained that, in the alternative, even if Officer Frank's actions did constitute a search, the clothing was still admissible under the doctrine of inevitable discovery. The State further contended that even without the clothing, there was still probable cause for the search warrant because the "fact that a crime was committed in the house [was alone] enough for the search warrant."

         On December 29, 2009, the circuit court issued its "Findings of Facts, Conclusions of Law, and Order Granting in Part and Denying in Part Defendant's Motion to Suppress Evidence and Statements." Regarding the hammer, the circuit court found that when Officer Tokunaga was assigned to look for weapons, he "knew no other facts and had no suspects in mind." The court concluded that Officer Tokunaga was "engaged in a lawful intrusion" when he "inadvertently observe[d]" the hammer. Because the blood on the hammer gave Officer Tokunaga probable cause to believe it was evidence of a crime, the hammer was lawfully seized under the plain view doctrine.

         Additionally, the circuit court concluded that the State had "carried its burden to show by clear and convincing evidence that the clothing found within the covered trash container in the garage would inevitably have been discovered by lawful means" under the search warrant later obtained. The court reasoned that the search warrant was not constitutionally defective because "notwithstanding the search warrant affidavit['s] reliance, in part, upon statements and items illegally obtained, the affidavit[] absent those statements and items contained sufficient basis upon which a district court judge could find probable cause to search for all items enumerated."

         The motion was therefore denied as to the hammer and clothing discovered in Phillips' garage. The court granted the motion, in part, with respect to certain statements Phillips made to HPD officers.

         2. The Trial

         The hammer and the clothing recovered from the garbage container were received into evidence at trial. Officer Frank identified his discarded tissue in State's Exhibit 15, a photograph of the garbage can showing the appearance of the interior of the container when Officer Frank lifted its lid on the morning of September 3, 2008. Police witnesses provided testimony that Phillips had stated that he had placed the hammer "where it was found." A witness stated that he saw Phillips wearing the clothing found in the garbage container the day before the assault. An expert witness identified the red substance on the hammer and on the T-shirt as Tara's blood through DNA analysis.

         In regard to Tara's injuries, Dr. Cherylee Chang testified that Tara arrived at the hospital on the day of the attack in a coma. Tara was "unresponsive, not opening her eyes, " and had no motor response. Tara's principal injury was a large laceration over the right side of her head. According to Dr. Chang, Tara was "at imminent risk of death" because of significant brain injuries; if she had not received emergency medical treatment, she would have died "in the field." In order to save her life, Tara was placed into a medically induced coma.

         Tara's mother testified that Tara was in the hospital in Honolulu for four months before being transferred to a Veterans Affairs (VA) hospital near Tampa, Florida. At the time Tara left Hawai'i, Dr. Chang felt that Tara "was in such bad neurologic condition that it looked like she would be bed bound." Tara's mother testified that Tara was never able to live on her own after the attack and that she never regained any memory of her attack. Tara died in the Tampa, Florida VA hospital on April 19, 2010.[8]

         The parties stipulated during trial that Tara's "death was unrelated to the September 3, 2008 attack." Phillips elected not to testify. In closing argument, Phillips' counsel argued that there was insufficient evidence to convict Phillips of the charged offense.

         On June 16, 2011, the jury found Phillips guilty of attempted murder in the second degree. On August 29, 2011, the Judgment of Conviction and Sentence was issued by the circuit court, sentencing Phillips to life imprisonment with the possibility of parole, with restitution to be determined at a subsequent proceeding.

         At the restitution hearing, the State requested that Tara's mother be reimbursed for funeral and related expenses of $6, 530. Phillips argued that he should not be liable for any additional payment because he had made "very large payments for a couple years to" Tara's mother; Tara died well over a year after the attack; and there was no evidence presented or doctor's testimony regarding the cause of death. In response, the circuit court noted that Tara was in a coma, suffered from head injuries, had to be taken to a Florida nursing home, and would not have died but for Phillips' conduct. Following the restitution hearing, the court issued an Amended Judgment of Conviction and Sentence, which ordered Phillips to pay $6, 530 in restitution.

         On January 20, 2012, Phillips filed a timely notice of appeal from the amended judgment of conviction.

         C. Intermediate Court of Appeals

         Phillips contended to the ICA that his rights under the Fourth Amendment to the United States Constitution and Article I, Section 7 of the Hawai'i Constitution were violated when the circuit court denied his motion to suppress. Phillips argued that the circuit court erred in applying the plain view doctrine to the discovery of the hammer and in concluding that the State had presented clear and convincing evidence that the clothing was admissible under the inevitable discovery exception to the exclusionary rule. Finally, Phillips argued that the circuit court erred in assessing $6, 530 in restitution.

         1. The Hammer

         Phillips asserted that the plain view doctrine was inapplicable to the seizure of the hammer, and he argued that the circuit court should have instead applied the open view doctrine. Phillips acknowledged that there "was nothing intrusive about Officer Tokunaga's vantage point because he was permitted to be in [Phillips'] garage by [Phillips] himself." Officer Tokunaga viewed the hammer from a "public vantage point, " and therefore, "the plain view doctrine should not be applied." "Absent a warrant [or] exigent circumstances at the time of its seizure, since the hammer was recovered from a constitutionally-protected location, evidence of the hammer should have been suppressed under the open view doctrine." Phillips argued in the alternative that, under the plain view doctrine, the circuit court should have suppressed the evidence because the discovery was not inadvertent.

         In its Answering Brief, the State argued that "discovery and seizure of the hammer was lawful under the 'plain view' exception to the warrant requirement." The State maintained that Officer "Tokunaga's observation of the hammer with a stain that resembled blood in the garage of the residence was an 'inadvertent discovery, '" because an inadvertent discovery is one in which police officers do not "know in advance the location of certain evidence and intend to seize it, relying on the plain view doctrine only as a pretext." The State argued:

Officer Tokunaga's discovery of the hammer was inadvertent. Here, Defendant had no reasonable expectation of privacy in his garage during a lawful investigation into the circumstances surrounding Tara's injuries initiated by Defendant's 911 call to the police. The police officers did not anticipate the discovery of the evidence until Officer Tokunaga actually observed the hammer.[9]

         The State contended that the police did not know in advance that the evidence would be there; therefore, the observation of the hammer was an inadvertent discovery, and the circuit court properly admitted the hammer into evidence.

         In his Reply, Phillips asserted that "both sides have conceded that the issue boils down to whether Officer Tokunaga's discovery of the hammer was 'inadvertent.'" Phillips argued that discovery of the hammer was not inadvertent just because "the police did not know in advance that the evidence would be there." Rather, Phillips maintained that when Officer Tokunaga discovered the hammer, he "was specifically looking for evidence related to the attack on the complainant."

         Phillips contended that "police investigation of a crime or [his] house being established as a crime scene" does not constitute "exigent circumstances such that the police could violate [his] constitutional rights." He did not have an "affirmative duty . . . to declare or establish his constitutional right to privacy in his own home." Phillips argued that there "was no evidence or testimony that established exigent circumstances justifying seizure of the hammer. To the contrary, the police could have quite easily secured the residence and obtained a warrant."

         2. The Clothing

         Phillips declared that the circuit court did not conduct an "analysis under the plain view doctrine to attempt to justify the seizure of the clothing." According to Phillips, "the court rejected any application of the plain view doctrine and instead justified the seizure of the clothing under the doctrine of inevitable discovery."

         Phillips contested the circuit court's finding "that the search warrant would still have been issued even without information of the illegally obtained evidence." Rather, Phillips argued, the circuit court improperly concluded that the search warrant would have been issued because "the court fail[ed] to cite to any findings of fact in support of this contention." Phillips contended that his position was bolstered by the fact that "despite all of the illegally-obtained evidence and statements, the police still did not feel that probable cause existed to arrest [him] after his interview."

         Phillips also argued that, even if the search warrant would hypothetically have issued, the State did not show that the clothing would have still been there when the search warrant was executed. Phillips maintained that, while he did not mean to suggest he had "a right to discard or destroy evidence, " the lower court improperly "concluded that the State demonstrated by clear and convincing evidence that [Phillips] was incapable of retrieving and discarding the clothing from the garbage can" before the search warrant was executed at 7:45 p.m.

         The State countered that "the attempted murder of Tara" in the house and the hammer "found in the garage [with] a stain that resembled blood on it" constituted "sufficient probable cause to issue the warrant." The State contended that Phillips could not have removed evidence from his house because, as noted in the Affidavit in Support of Search Warrant, "the vehicle and residence were being secured by the presence of police units on scene." The State therefore maintained that "the circuit court was correct in concluding that 'the clothing . . . would inevitably have been discovered by lawful means.'"

         Phillips replied that because "three major bases of the warrant application [were] invalid"--the hammer, the clothes and much of Phillips' statements to the police--"it cannot be assumed that the warrant [was properly] issued or that it would have specified [the trash can] to be searched." Phillips maintained that even "if there did exist sufficient probable cause to issue the search warrant, the State did not show by clear and convincing evidence that the clothing recovered from [Phillips'] home would still have been there." The warrant was not executed until "approximately sixteen hours later, " and there "was no testimony regarding whether the police would have let [Phillips] back into his house after his release from custody."

         3. Restitution

         Phillips argued that because the parties stipulated that Tara's death was "unrelated to the September 3, 2008 attack . . . it must be accepted as fact." Phillips maintained that "Tara died a full eighteen months after the attack." Phillips argued that "[t]he record was completely devoid of any evidence or testimony that her death was the result of the September 3, 2008 attack on her"; therefore, the circuit court erred when it ordered him to pay restitution.

         The State responded that the circuit court correctly recognized that "Tara didn't recover from the injuries she sustained as a result of Defendant's attack upon her, " "was in a coma and . . . had to be taken to a Florida nursing home, and there died . . . and would not have died but for Defendant's conduct." The State contended that the circuit court properly concluded that there was a nexus between Phillips' conduct and Tara's death, and therefore, it "did not err by ordering Defendant to pay restitution."

         In his Reply, Phillips argued that the circuit court "did not rely on any evidence to overcome the stipulated fact that the complainant's death had nothing to do with the attack on her." Because the "conclusions by the court did not come from any evidence -- testimonial or otherwise"--Phillips argued that he had "no opportunity to challenge the court's findings through traditional methods of cross examination or lack of foundation, " and therefore, the order of restitution was not proper.

         4. Summary Disposition Order

         On August 30, 2013, the ICA issued a Summary Disposition Order (SDO). The ICA focused on the "inadvertent discovery" requirement for a "legitimate plain view observation." In determining the meaning of "inadvertent, " the ICA relied upon a dictionary definition of inadvertent as "unintentional." The ICA noted that Officer Tokunaga's supervisor instructed him "to search the premises for the weapon used in the attack" on Tara. "A warrant certainly could have been obtained to search the premises given that an attempted murder appeared to have taken place there." Thus, the ICA concluded that "the search and discovery of the hammer were certainly intentional" and, thus, could not "be described as inadvertent." The ICA held that "the intentional search and seizure of the hammer under the plain view doctrine was not valid" and that "the circuit court erred in not suppressing the evidence of the hammer." The ICA concluded that the issues relating to the clothes and restitution were moot, vacated Phillips' conviction, and remanded the case for a new trial.

         The dissent to the ICA opinion "agree[d] that the Circuit Court erred in its application of the plain view doctrine, but only because . . . it was mistaken to apply the doctrine at all." The dissent contended that "Phillips impliedly consented to a routine investigation into the circumstances of the assault, and the seizure of the hammer was thereby justified."

         The dissent reasoned that if the inadvertency requirement was held "to equate to intentionality, then, logically, the plain view doctrine can never apply to a seizure of evidence that is discovered during a search intended precisely to turn up evidence of the sort discovered." The dissent nevertheless avoided "the use of the plain view doctrine entirely" and used implied consent as the "starting point for [the] analysis." The dissent "would rule that Phillips impliedly consented to [the] investigation" when he "called 911 to report that his wife was attacked, and hastened responding officers into his home." And "such consent was valid until such time as the initial investigation ceased; he revoked, or limited the scope of, that consent; or he became a suspect." The dissent noted that "Phillips never evinced any desire to limit the scope of police activity" and "seemed intent on facilitating the investigation."

         The dissent concluded that the facts provided in Detective Sunia's Affidavit, including the lawfully discovered hammer, established probable cause for a search warrant without the inclusion of the clothes discovered by Officer Frank. Further, "[t]he evidence in the record clearly and convincingly establishes that the authorities would not have permitted Phillips to re-enter his house -- a crime scene -- to dispose of anything therein." Thus, in the dissent's view, the circuit court was correct in determining that the clothing would inevitably have been discovered pursuant to the execution of the search warrant.

         The dissent also would have affirmed the circuit court's award of restitution, based on the evidence establishing that Tara suffered head injuries, was in a coma after the attack, and later had to be put in a nursing home where she eventually died. Further, the dissent pointed to evidence presented to the circuit court regarding the lethality of her injuries in concluding that Phillips' responsibility for his conduct was not extinguished.

         D. Application for Writ of Certiorari

         1. The hammer

         The State argues that the ICA "gravely erred in holding the circuit court was wrong by not suppressing the evidence of the hammer." The State maintains that the search and seizure of the hammer was legitimate under the implied consent theory, as described by the ICA dissent. Alternatively, the State argues that the seizure of the hammer was legitimate under the plain view doctrine because the police "did not anticipate discovery of the evidence until Officer Tokunaga actually discovered the hammer"; thus, the "observation of the hammer was an 'inadvertent discovery.'" The State additionally requests this court to "hold that inadvertent discovery is not a requirement for the plain view exception to the warrant requirement."

         In his Response, Phillips contends that the ICA "did not gravely err in concluding the circuit court was wrong by not suppressing evidence of the hammer." Phillips argues that the seizure of the hammer was improper because Phillips "did not impliedly consent to a search, " and implied consent was not established in the evidentiary record because it "was never a consideration, never argued[, ] and never even mentioned at the hearings on the motion to suppress." To decide this case on implied consent, when relevant facts and testimony were not developed below, "would implicate [Phillips'] due process right to confront the witnesses with respect to the issue of implied consent." Phillips also echoed the ICA's holding that "the discovery of the hammer was not inadvertent because Officer Tokunaga was ordered to search the premises, " and therefore, "the search and seizure of the hammer was unconstitutional."

         2. The clothing

         The State contends that the ICA "gravely erred in concluding that respondent's other points on appeal are moot, and thereby fail[ing] to render a decision with regard to the evidence of clothing." The State maintains that "because the circuit court's ruling with regard to the clothing involves an evidentiary issue, it should have been addressed by the ICA majority before it remanded the case for a new trial." The State also asserts that "the circuit court correctly applied the inevitable discovery doctrine" in admitting the clothing into evidence.

         In his Response, Phillips agrees with the State that "the ICA majority gravely erred in concluding [Phillips'] other points on appeal are moot, " but he argues that "this court should suppress evidence of the clothing and vacate the circuit court's order of restitution." Phillips submits that "the State did not present clear and convincing evidence that [the clothing] would have been inevitably discovered, " maintaining both that the warrant may not have issued absent the hammer and that the State failed to show that the clothing would have remained in the garbage container until the warrant was executed.

         3. Restitution

         The State urges affirmance of the circuit court's order of restitution because there is "a sufficient nexus for the circuit court to order restitution for Tara's funeral expenses."

         Phillips responds that the circuit court improperly awarded restitution because the circuit court "did not rely on any evidence to overcome the stipulated fact that the complainant's death had nothing to do with the attack on her."

         III. DISCUSSION

         A. Police entry into Phillips' garage

         The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" by the government. Similarly, article I, section 7 of the Hawai'i Constitution provides that the "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated."

         It is well established that warrantless searches and seizures of items within a constitutionally protected area are "presumptively unreasonable unless there is both probable cause and a legally recognized exception to the warrant requirement." State v. Bonnell, 75 Haw. 124, 137, 856 P.2d 1265, 1273 (1993). However, "before the issue of the 'reasonableness' of the activity is confronted, it must first be determined whether the activity did, in fact, constitute a search and seizure within the scope of the Fourth Amendment" and the Hawai'i Constitution. State v. Kaaheena, 59 Hawai'i 23, 28, 575 P.2d 462, 466 (1978) (emphases added) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). This is because the Fourth Amendment and article I, section 7 do not apply unless there has been a "search" or a "seizure." 1 Wayne R. Lafave, Search & Seizure § 2.1 (5th ed. 2013) ("The words 'searches and seizures, ' . . . are terms of limitation. Law enforcement practices [are not subject to the Fourth Amendment] unless they are either 'searches' or 'seizures.'" (quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349 (1974))). "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." State v. Stachler, 58 Haw. 412, 416, 570 P.2d 1323, 1326 (1977) (emphases added) (quoting Katz, 389 U.S. at 351).

         To determine whether a police entry constitutes a "search" within the meaning of the Fourth Amendment and the Hawai'i Constitution, two tests have emerged: (1) the "Katz reasonable expectation of privacy test, " State v. Kender, 60 Haw. 301, 303, 588 P.2d 447, 449 (1978), and (2) the Jones/Jardines trespass-intrusion test, Florida v. Jardines, 133 S.Ct. 1409 (2013); United States v. Jones, 132 S.Ct. 945 (2012).

         The Katz doctrine provides that only government intrusions into areas, objects, or activities in which an individual has exhibited a "reasonable expectation of privacy" are searches subject to the protections of the Fourth Amendment. Katz, 389 U.S. at 360 (Harlan, J., concurring). To determine whether a person's expectation of privacy is reasonable, "there is a twofold requirement, first that a person . . . exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as [objectively] 'reasonable.'" Id. at 361 (Harlan, J., concurring); Stachler, 58 Hawai'i at 416, 570 P.2d at 1326.

         Of recent vintage is the Jones/Jardines trespass-intrusion test. Jones and Jardines recognized a trespass-intrusion test based on the property-based understanding of Fourth Amendment search and seizure jurisprudence. What unites Jones and Jardines is the bedrock principle that the government cannot trespass or physically intrude into a constitutionally protected area for the purpose of gaining evidence without complying with the strictures of the Fourth Amendment. See Jones, 132 S.Ct. at 950-951; Jardines, 133 S.Ct. at 1414-17. Under the Jones/Jardines trespass-intrusion test, the first question is whether there is a trespass or physical intrusion to persons, houses, papers, or effects. A physical intrusion is the act of "entering without permission." Black's Law Dictionary 951 (10th ed. 2014). Second, it must be determined whether the underlying purpose of the police, objectively examined and at the time of the trespass or physical intrusion, is to gather evidence. See Jardines, 133 S.Ct. at 1415-17. Once both requisites are satisfied, a search under the Jones/Jardines trespass-intrusion test has occurred. See Jones, 132 S.Ct. at 951 (explaining that a search occurs where there is a "[t]respass . . . conjoined with that what was present here: an attempt to find something or to obtain information"). The inquiry then shifts to whether there is an applicable exception to the warrant requirement that would allow the otherwise unauthorized governmental activity. See Jardines, 133 S.Ct. at 1415-17; Jones, 132 S.Ct. at 951-53.[10]

         1. There was no search under the Katz reasonable expectation of privacy test

         As stated, under Katz, to determine whether a person's expectation of privacy is reasonable, a person must exhibit an actual (subjective) expectation of privacy, and that expectation must be one that society is prepared to recognize as objectively reasonable.

         a. Subjective expectation of privacy

         Turning first to the subjective prong, the determination of whether or a person "exhibited an actual expectation of privacy, " State v. Texeira, 62 Haw. 44, 48, 609 P.2d 131, 134 (1980), is through a fact-specific process, "considering all factors on a case-by-case basis, " State v. Ward, 62 Haw. 509, 515, 617 P.2d 568, 572 (1980). Here, Phillips called the 911 operator and requested the police and ambulance be sent to his home because Tara had been assaulted and was seriously injured. When police arrived, the garage door was open and the interior of the garage was exposed to public view, including to the police officers who responded to the scene. Further, Phillips motioned from within the garage for the responding officer to join him inside. The officer described Phillips' gesture as "[m]ore or less inviting me that, yeah, this is the place you should come, this is the place you should be." Phillips did not contest that his intent was to invite the officer into the garage.

         The record also does not contain any actions or statements by Phillips that would indicate that he expected the garage area to remain private. To the contrary, until leaving to go to the police station later that morning, Phillips remained with officers of the HPD, primarily in the garage area. Phillips has not disputed his lack of a subjective expectation of privacy at any point during this case. Phillips acknowledged this point at the hearing on the motion to suppress, stating that the police were in the garage "because, you know, [Phillips] had called 911 and they were -- they had a right to be there at the time." Phillips also conceded this to the ICA, stating that "[t]here was nothing intrusive about Officer Tokunaga's vantage point because he was permitted to be in [Phillips'] garage by [Phillips] himself" and that Officer Tokunaga "was allowed to be in [Phillips'] garage."

         In sum, Phillips did not exhibit an actual (subjective) expectation of privacy regarding the presence of police in his garage for the following reasons: Phillips requested the 911 operator to send the police to his home because Tara had been assaulted; when the police arrived, the garage door was open and the interior of the garage was exposed to public view; Phillips invited the police officers to enter the garage; and the totality of his conduct while the police were present.[11]

         b. Objective expectation of privacy

         Even if Phillips had exhibited an actual expectation of privacy, it "must be one that society would recognize as objectively reasonable" in order for the constitutional protections against unreasonable searches and seizures to attach. Bonnell, 75 Hawai'i at 139, 856 P.2d at 1274; Kaaheena, 59 Hawai'i at 28, 575 P.2d at 466. The police did not enter Phillips' garage of their own initiative; rather, they were responding to Phillips' 911 call for police assistance and his gesturing them into the garage. Hence, Phillips' expectation of privacy was diminished. See State v. Lopez, 78 Hawai'i 433, 442, 896 P.2d 889, 898 (1995) (holding that the defendant's expectation of privacy in his home was diminished by permitting entry by the police); United States v. Williams, No. 14-CR-20419, 2015 WL 730098, at *8 (E.D. Mich. Feb. 19, 2015) (holding that when the defendant invited the initial responders into his apartment to tend to his medical needs, he sacrificed much of his expectation of privacy); State v. Pearson-Anderson, 41 P.3d 275, 279 (Idaho Ct. App. 2001) ("[B]y making the 911 call, [the defendant] diminished her reasonable expectation of privacy within her home by summoning police officers to the premises with an implied representation that an emergency was occurring.").

         In addition, Phillips' actions demonstrate that he did not take precautions to insure his privacy in the garage. See State v. Holbron, 65 Haw. 152, 154, 648 P.2d 194, 196 (1982) (stating that the determination of whether a defendant has a reasonable expectation of privacy in a particular place depends, in part, on the precautions he or she takes to insure the preservation of his or her privacy). Indeed, Phillips allowed the garage to become the center of activity for the initial investigation, including the location of Phillips' demonstration of how the purported assailant gained access to the home through the malfunctioning garage door. By knowingly and voluntarily exposing the interior of his garage to the police, cf. State v. Dias, 62 Haw. 52, 56, 609 P.2d 637, 640 (1980) ("Conduct open to view and conversations audible to persons standing outside of a building constitute activities knowingly exposed to the public."), and by readily allowing the area to be used by the emergency responders, any expectation of privacy in the exposed, visible interior of the garage was not "one that society would recognize as objectively reasonable." Bonnell, 75 Haw. at 139, 856 P.2d at 1274; Kaaheena, 59 Haw. at 28, 575 P.2d at 466.[12] If Phillips did not wish the garage to be entered into and its interior observed, he could have kept it closed and secured, or he could have refrained from motioning for the police to enter and directed them to access his home from another entryway. Cf. Dias, 62 Haw. at 56, 609 P.2d at 640.

         Therefore, with neither a subjective expectation of privacy, nor one that society would recognize as objectively reasonable, the police officers that Phillips summoned into his garage did not intrude upon Phillips' reasonable expectation of privacy by entering the garage.[13] Having found that the police did "not invade an individual's legitimate expectation of privacy, 'there is no "search" subject to the Warrant Clause.'" State v. Meyer, 78 Hawai'i 308, 312, 893 P.2d 159, 163 (1995) (quoting Illinois v. Andreas, 463 U.S. 765, 771 (1983)).[14]

         2. Prior decisions of this court

         Our determination that Phillips did not have a reasonable expectation of privacy in exposed areas of the garage and, thus, that no "search" occurred when the police entered the garage is in accordance with prior decisions of this court. In State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973), evidence was gathered by an undercover agent after he was willingly admitted into a home by the resident. Id. at 514, 510 P.2d at 1067. No warrant had been obtained by the police. See id. In ruling the evidence admissible, this court agreed with the analysis of the Supreme Court in Lewis v. United States, 385 U.S. 206 (1966): "It is unnecessary to determine whether the facts of this case come within one of [the search warrant] exceptions, however, for we hold that [the Officer's] actions did not constitute a search or seizure as regulated by the Fourth Amendment."[15] Roy, 54 Haw. at 515, 510 P.2d at 1068 (emphasis added). Under such circumstances, the Roy court concluded, "No warrant to 'search and seize' is required . . . ." Id. at 516, 510 P.2d at 1068 (emphasis added).[16] "It is clear beyond peradventure . . . that the Fourth Amendment to the U.S. Constitution . . . does not prohibit the introduction into evidence . . . [of items] 'seized' by [the officer.]" Id. at 516-17, 510 P.2d at 1068. The court reached a similar conclusion under article I, section 7 of the Hawai'i Constitution.[17] Id. at 517, 510 P.2d at 1068.

         Thus, this court has held that, under the circumstances of an invitation to and voluntary admittance of a government agent into a home by a resident, the protections of article I, section 7 are not implicated as to the entry into the home, because such an entry is not a search in a constitutional sense. Applying Roy to the present case, it is clear that Phillips invited and willingly admitted police into his garage on the morning of September 3, 2008, and thus, the protections of article I, section 7 were not implicated and the police's entry into Phillips' garage was not a search.[18]

         In Lopez, police responded to reports of a home invasion and robbery. 78 Hawai'i at 437, 896 P.2d at 893. Police arrived while the residents were at home; following an "initial investigation, " both police and the residents left the home. Id. Based on a suspicion that the home invasion and robbery were motivated by illicit drug activity by the residents, the police returned later without permission or obtaining a search warrant and recovered evidence of drugs. Id. at 438, 447, 896 P.2d at 894, 903. The drug evidence was ruled the result of an illegal search. Id. at 447, 896 P.2d at 903. The State had argued that, based on the 911 call, the residents' reasonable expectation of privacy in their home had been diminished. Id. at 441, 896 P.2d at 897. This court partially agreed.

When the police initially entered the [residents'] home to investigate the robbery that had just taken place, they did so with the [resident's] permission. Thus, during the course of this initial investigation, the [resident's] expectation of privacy in their home was, as the prosecution contends, "diminished."

Id. at 442, 896 P.2d at 898 (emphases added). That is, when a resident permits police to enter his or her home to investigate a crime or for other purpose, the resident has not exhibited a reasonable expectation of privacy into areas knowingly exposed, and hence, the police's entry would not qualify, constitutionally speaking, as a search.[19]

         Thus, these decisions demonstrate that this court will review an expectation of privacy according to the circumstances presented, rather than assume that a reasonable expectation of privacy exists solely based on a location. See Ward, 62 Haw. at 515, 617 P.2d at 572; Stachler, 58 Haw. at 416, 570 P.2d at 1326. Roy and Lopez indicate that a resident, who invites and willingly admits an agent of the government into his or her home, may not claim a reasonable expectation of privacy into those areas knowingly exposed. Here, as in Roy and Lopez, the police were invited by Phillips into the "garage area" through his 911 call, his beckoning of police "to come forward" into the open garage, and his willing admittance of the officers to respond to and investigate the assault on Tara. Thus, the police's act of entering the garage was not a search in the constitutional sense.

         B. The hammer is admissible under the plain view doctrine

         When "a governmental intrusion does not invade an individual's legitimate expectation of privacy, [then] there is no search subject to the Warrant Clause." State v. Meyer, 78 Hawai'i 308, 312, 893 P.2d 159, 163 (1995) (emphasis added). In this case, when the police officers entered the open garage, there was no search, and the police officers were authorized to be where they were. It is important to note, however, that even in cases where no search in the constitutional sense has transpired, seizures of property remain under the restraints of the Fourth Amendment and article I, section 7. Soldal v. Cook Cty., 506 U.S. 56, 68 (1992) ("[S]eizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place."). Hence, the seizure of property inside the garage was valid only if authorized by a warrant or an exception to the warrant requirement. One well-settled exception is the "plain view doctrine, " which allows the police to seize evidence or contraband sighted in plain view from a lawful vantage point. State v. Davenport, 55 Haw. 90, 100-01, 516 P.2d 65, 72 (1973) ("So long as the searching officer is in a position where he is lawfully entitled to be, the seizure of any evidence of crime is permissible."); see also 1 Wayne R. LaFave, Search and Seizure ยง 2.2 (5th ed. 2013). In cases where the police have not invaded an individual's legitimate expectation of privacy and are thus not conducting a search, they are not ...


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