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United States v. Kapahu

United States District Court, D. Hawaii

October 5, 2016





         Before the court are two motions to suppress by Defendant Sheri Lee Pualani Kapahu.

         In Motion No. 1, Kapahu seeks suppression of all items seized from her purse, and any fruits of that seizure. Kapahu argues that this evidence was obtained by a “warrantless, non-consensual, and unconstitutional search” after “the [G]overnment's failure to honor her express and unambiguous refusal to consent to a search of herself and her purse.” Kapahu's Motion to Suppress No. 1, ECF No. 17, PageID #s 32-33.

         In Motion No. 2, Kapahu seeks suppression of all statements she made after she was “confronted with evidence and knowledge of her guilt.” Kapahu's Motion to Suppress No. 2, ECF No. 18, PageID # 49. She contends that, although law enforcement officers were required to provide Miranda warnings, they failed to do so. See Id. Kapahu contends that the primary issue on this second motion to suppress is whether she was in custody during her encounter with the officers.[1] See id.

         Because the Government has demonstrated by a preponderance of the evidence that Kapahu was not in custody until after she had confessed to having drugs in her purse, the motion to suppress her statements is denied. The motion to suppress items seized from her purse, and all fruits of that seizure, is also denied.


         This court received oral testimony from Special Agent Richard Jones during a hearing on September 12, 2016. The court also had before it Special Agent Jones's Report of Investigation and a copy of Kapahu's boarding pass. In an effort to rule promptly on the merits and to avoid the burden on the court's over-extended court reporters, and because both motions to suppress were filed right before what was then the trial date, the court did not request and therefore does not have final transcripts of the live testimony, although the court has “rough” unedited copies of those transcripts. Therefore, in referring to that testimony in these findings of fact, this court is unable to give exact page and line citations to the testimony.

         Based on the live testimony and the record, the court makes the following findings of fact based on a preponderance of the evidence. The findings are identified by letters of the alphabet for ease of reference in future proceedings. Unless otherwise indicated, the findings of fact are based on Agent Jones's testimony.

         A. Agent Jones has been with the Drug Enforcement Administration since 1998 and has been working with the interdiction group of the Honolulu Airport Task Force since 2002, except for a period from 2007 to 2008 when he was assigned to another DEA group. This court found him to be credible.

         B. On June 28, 2016, at about 8:00 p.m., Honolulu Airport Task Force Officer Lovinna Kaniho called Agent Jones at home about a tip from the Kauai Police Department. According to the tip, Kapahu might be flying from Honolulu to Lihue, Kauai, on a Hawaiian Airlines flight set to leave at around 10:00 p.m. that evening. Kapahu reportedly might be carrying methamphetamine. See also Special Agent Richard Jones's Report of Investigation, ECF No. 17-1, PageID # 45.

         C. Agent Jones left his house to go to the airport shortly after getting the call, dressed in a t-shirt or tank top, shorts, and slippers.

         D. On the way to or at the airport, Agent Jones called Sergeant Danny Oliveira at the Kauai Police Department for more information. Sergeant Oliveira told Agent Jones that the tip had been provided by an informant who had no past history of providing reliable information. Sergeant Oliveira said that Kapahu had a minor criminal history and sent Agent Jones (presumably electronically) a copy of Kapahu's driver's license photograph. Sergeant Oliveira confirmed that Kapahu was suspected of transporting drugs and was on a flight to Lihue scheduled to leave Honolulu at around 10:00 p.m.

         E. Agent Jones arrived at Honolulu International Airport around 8:45 p.m. Noting that Hawaiian Airlines flight 323 bound for Lihue was scheduled to depart at 9:35 p.m. from Gate 58, he went to Gate 58. See also Id. He saw Kapahu seated in the waiting area between Gate 58 and Gate 59, but he decided to wait for Officer Kaniho to arrive before approaching Kapahu.

         F. Officer Kaniho arrived within a few minutes, dressed in a t-shirt (and possibly also a flannel shirt) and jeans. Agent Jones and Officer Kaniho went up to Kapahu, who by then was standing at the end of the boarding line at Gate 58. Agent Jones showed Kapahu his law enforcement credentials.

         G. Agent Jones stood to the side of Kapahu while Officer Kaniho stood slightly behind her, just outside of Kapahu's peripheral vision. See also Id. Neither Agent Jones nor Officer Kaniho displayed any weapon or drew any firearm during the encounter.

         H. Agent Jones did all the questioning. He told Kapahu his name and said that he worked for the police department at the airport. He told Kapahu that she was not under arrest, was not in trouble, and was free to leave at any time. He asked Kapahu if he could speak with her, and Kapahu agreed. Agent Jones then asked Kapahu if she was on the flight headed for Lihue, and she said that she was. Agent Jones asked Kapahu for her boarding pass and identification. With her hands shaking a bit, Kapahu handed him her boarding pass for Hawaiian Airlines flight 323 and a card that appeared to be a hotel room key. Agent Jones handed the card back to Kapahu, who then handed him her driver's license. Agent Jones gave the boarding pass and driver's license to Officer Kaniho to photograph while Agent Jones asked Kapahu about the nature of her trip. When Officer Kaniho handed the materials back to Agent Jones, he returned them to Kapahu.

         I. Kapahu told Agent Jones that she had come to Oahu to visit her brother “in rehab” for “ice.” Agent Jones asked Kapahu when she had arrived on Oahu, and Kapahu stated that she had arrived the day before. Asked where she had stayed on Oahu, Kapahu replied that she had stayed at a hotel, the name of which she said she could not recall. Kapahu appeared nervous to Agent Jones while answering these questions. Agent Jones asked Kapahu whether anyone had asked her to transport anything back to Kauai. Kapahu replied “no.” Agent Jones then asked whether Kapahu was transporting any drugs back to Kauai, and Kapahu again responded “no.”

         J. Agent Jones, suspecting that Kapahu was lying, asked her if she would consent to his searching her person and purse to ensure that she did not have any drugs. Kapahu asked Agent Jones, “Don't you need a warrant for that?” Agent Jones responded that he was “just asking.” Agent Jones repeated that the encounter was consensual, that it was up to her, and that she could agree or disagree. Kapahu hesitated, and then, in what Agent Jones described as a “slow drawn out” voice, said “I'd rather you didn't.” Agent Jones told Kapahu he understood because he himself did not like people going through his things. He then asked Kapahu if she thought that law enforcement officers walked around the airport dressed the way he was dressed and just randomly went up to people to talk. He said that he already knew that she was transporting drugs[2] and that he needed her help to catch the people she was going to give the drugs to on Kauai. This was a bluff; Agent Jones suspected that Kapahu was carrying drugs, but did not actually know if she was.

         K. Kapahu remained standing in line to board the flight to Lihue and made no movement away from the boarding line. However, she put her hands over her face and said, “I want to go home.” This reaction confirmed for Agent Jones the high possibility that Kapahu was carrying drugs. In Agent Jones's mind, Kapahu's reaction was sufficient to support detaining Kapahu long enough to allow a drug-sniffing dog to arrive and for Agent Jones to see if the dog “alerted” on Kapahu or on whatever she was carrying. This would have been what Agent Jones referred to as a “temporary detention.” Had a dog sniff occurred without an “alert, ” Kapahu would have been allowed to leave. However, Agent Jones did not tell Kapahu what he thought, that a dog was on the way, or that she was no longer free to leave. What occurred next mooted out any dog sniff, and no dog sniff occurred.

         L. Agent Jones asked Kapahu where the drugs were, and Kapahu told him that they were in her purse. He asked Kapahu how much was in her purse, and she stated five ounces. He asked Kapahu, “Five ounces of what?” She replied, “Ice, ” referring to crystal methamphetamine. See also ECF No. 17-1, PageID #s 43-44, 46. Agent Jones then believed that he had probable cause to arrest her.

         M. Agent Jones told Kapahu again that he needed her assistance to catch the people from whom she had received the drugs and to whom she planned to give the drugs. So that bystanders would not overhear what followed, he asked Kapahu to move from the boarding line to sit in some chairs facing the windows between Gate 57 and Gate 58. Kapahu complied, stepping out of the line and following Agent Jones and Officer Kaniho to the chairs.

         N. Agent Jones told Kapahu that they wanted her cooperation. Kapahu asked if she could go home. Agent Jones told Kapahu that he did not know what would happen that evening and that whether she could go home depended on her cooperation.

         O. Neither officer told Kapahu that she was under arrest or that she was no longer free to leave. She did not attempt to leave. She appeared cooperative, was not handcuffed, and was not physically dragged or ordered to move out of the boarding line to sit in the chairs.

         P. Agent Jones asked Kapahu if Officer Kaniho could retrieve the drugs from her purse. Kapahu replied “yes, ” and Officer Kaniho removed what appeared to be drugs from Kapahu's purse.

         Q. The entire encounter from the time the officers first approached Kapahu until the time they retrieved the drugs from her purse lasted less than eight minutes. The officers handcuffed Kapahu before transporting her to the Honolulu Airport Task Force office. Special Agent Frank Bru, dressed in a t-shirt and either shorts or long pants, joined Agent Jones and Officer Kaniho at the exit near the Hawaiian Airlines ticketing area. According to Agent Jones's Report of Investigation, at the Honolulu Task Force office, Agent Bru tested what had been retrieved from Kapahu's purse, and the material tested positive for the presence of methamphetamine. See id., PageID #s 43-44.

         R. Agent Jones's Report of Investigation states that, at the office, Kapahu initially gave oral permission to search her phone and provided the code to access her phone, but she revoked her consent after reviewing the written consent to search form. See Id. Agent Jones read Miranda warnings to her ...

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