TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000020; CR.
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
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
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.
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." 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."
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."
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."
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
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.
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.
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.
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."
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." 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."
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."
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.
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.
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.
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."
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,
707-701.5,  and 706- 656. Phillips pleaded not guilty
to the charge on September 15, 2008, in the Circuit Court of
the First Circuit (circuit court).
Motion to Suppress
April 24, 2009, Phillips filed a Motion to Suppress Evidence
and Statements (motion). 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.
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.
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."
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
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."
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.
. The Trial
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.
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.
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.
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.
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
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
January 20, 2012, Phillips filed a timely notice of appeal
from the amended judgment of conviction.
Intermediate Court of Appeals
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.
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.
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
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.
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.
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."
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."
. The Clothing
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."
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."
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.
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
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."
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
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."
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.
. Summary Disposition Order
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
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."
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
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.
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