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State v. Curtis

Supreme Court of Hawaii

May 15, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
JASON CURTIS and MELISSA HALL, Petitioners/Defendants-Appellants, and GENEVIEVE WALKER, Respondent/Defendant-Appellee.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000133 and CAAP-12-0000134; CR. NO. 11-1-0016)

          Daniel Hempey for petitioner Hall

          Michelle Premeaux for petitioner Curtis

          Tracy Murakamifor respondent



          RECKTENWALD, C.J.

         This case requires us to determine what information must appear on the face of an "anticipatory" search warrant, i.e., a warrant that cannot be executed until some expected future event occurs. This case arose when a FedEx employee discovered marijuana in a package addressed to a residence on Kaua'i. The Kaua'i Police Department (KPD) was contacted and decided to conduct a controlled delivery of the package to the address listed. They applied for a warrant to allow them to search the premises upon completion of the delivery. However, rather than listing this triggering condition, the warrant issued by the district court instead authorized the KPD to conduct the search "forthwith."

         The KPD completed the controlled delivery, and Petitioners Jason Curtis and Melissa Hall were charged with drug offenses based on evidence seized in the subsequent search. Petitioners moved to suppress that evidence, arguing that the anticipatory search warrant was invalid because it failed to list the triggering condition. The circuit court denied Petitioners' motion, and the Intermediate Court of Appeal (ICA) affirmed.

         We are faced with a question of first impression for this court: Does the Hawai'i Constitution require that an anticipatory search warrant identify the triggering condition on the face of the warrant? In light of the privacy protections contained in article I, section 7 of the Hawai'i Constitution, we hold that an anticipatory search warrant must, on its face, identify the triggering condition to be valid. We therefore vacate the ICA's February 23, 2016 Judgment on Appeal and the circuit court's denial of Petitioners' motion to suppress evidence seized pursuant to the unlawful search warrant, and remand the case to the circuit court for proceedings consistent with this Opinion.

         I. Background

         A. Anticipatory Search Warrant

         On December 1, 2010, a FedEx employee at the Honolulu FedEx sorting facility opened a parcel that he suspected contained illegal narcotics. The parcel was addressed to "Jennifer ROBERTSON" at a Kaua'i residential address (Subject Premises). After discovering plastic bags in the parcel that appeared to contain marijuana, the FedEx employee notified a Drug Enforcement Administration (DEA) officer. The parcel and its contents were subsequently turned over to the KPD. After testing and weighing the suspected marijuana, the KPD determined that the parcel contained approximately eight pounds of marijuana.

         KPD Officer Paris Resinto applied for and obtained a court order authorizing KPD officers to install in the parcel a tracking device that would permit the KPD to track the location of the parcel and determine when the parcel was opened. In conjunction with obtaining the order for the tracking device, Officer Resinto applied for an anticipatory search warrant to search the Subject Premises for the parcel and its contents, including the tracking device.

         Officer Resinto's affidavit in support of the anticipatory search warrant explained that (1) the KPD planned to effect a controlled delivery of the parcel under police surveillance to the Subject Premises to "identify the person(s) involved in this illegal drug shipment"; (2) the KPD would install the tracking device in the parcel; and (3) after the tracking device was installed, Officer Resinto and KPD Sergeant Darren Rose would maintain custody of the parcel until it was delivered to the Subject Premises. The affidavit also incorporated three documents by reference: a description of Officer Resinto's training and experience, the affidavit supporting the application for the tracking device, and the order granting the application.

         The affidavit stated that Officer Resinto "has reasonable grounds to believe that the property described herein will be located in the [Subject Premises] after the time of delivery of the suspect parcel and request that a search warrant issue commanding that a search be made of said residence for said property[.]" The affidavit also requested the issuance of a search warrant to search the Subject Premises "within forty-eight (48) hours after the time of delivery of the subject parcel[.]"

         On December 2, 2010, the district court[1] issued an "Anticipatory Search Warrant" based on Officer Resinto's affidavit, authorizing KPD officers to search the Subject Premises for the parcel and its contents. The search warrant did not set forth the triggering condition for the execution of warrant, and it did not mention the controlled delivery of the parcel described in Officer Resinto's affidavit. Rather, the search warrant stated:

Affidavit(s) having been made before me that the property described herein may be found at the location set forth herein and that it falls within the grounds specified by said affidavit(s). And I am satisfied that there is probable cause to believe that the property described herein is located within the property to be searched and that the foregoing grounds for application for issuance of a search warrant exist:
YOU ARE HEREBY COMMANDED forthwith to search:
[The Subject Premises]

(Emphases added.)

         It also described the property to be searched and stated that "[t]he search shall take place within 10 days of this date."

         That same day, the KPD conducted a controlled delivery of the parcel to the Subject Premises. Sergeant Rose approached the Subject Premises and handed the parcel to Curtis, who carried it inside the Subject Premises. Sergeant Rose also saw Hall and co-defendant Genevieve Walker. Officer Rose asked Walker if she was "Jennifer Robertson, " the named addressee of the parcel. Walker said yes and signed the FedEx delivery form. Sergeant Rose left the Subject Premises and notified other KPD officers participating in the investigation that the parcel had been delivered.

         About five minutes after the parcel had been delivered, the tracking device alerted the KPD officers that the parcel had been opened. In response, the KPD officers went to the Subject Premises and executed the search warrant.

         In executing the warrant, the officers observed Curtis, Hall, and Walker and found the contents of the opened parcel, including the marijuana, in various parts of the Subject Premises. The officers recovered one of the bags of marijuana from the parcel. The officers also recovered drug paraphernalia and over $1, 000 in cash.

         B. Circuit Court Proceedings

         On January 19, 2011, Curtis, Hall, and Walker were charged with: (1) second-degree commercial promotion of marijuana in violation of Hawai'i Revised Statutes (HRS) § 712-1249.5(1)(a) and/or (b), [2] (2) unlawful use of drug paraphernalia in violation of HRS § 329-43.5 (a), [3] and (3) second-degree promotion of a detrimental drug in violation of HRS § 712-1248 (1) (c) .[4]

         On February 17, 2011, Walker filed a "Motion to Quash Search Warrant and Suppress Illegally Obtained Evidence and Statements" (Suppression Motion), challenging the validity of the warrant. Walker argued that the search warrant was invalid under article I, section 7 of the Hawai'i Constitution[5] and under HRS § 803-31[6] because it did not contain a description of the triggering condition on its face.

         In support of her argument, Walker cited a depublished ICA case, State v. Scott (Scott I), that set forth six requirements for an anticipatory search warrant, including that the warrant "authorizes a search only upon the occurrence of the event generating the probable cause"; "authorizes a search only within the probable life of the probable cause"; and is "executed before the probable cause in fact expires." 87 Hawai'i 80, 80-81, 951 P.2d 1243, 1243-44 (1998) .[7] Walker argued that the warrant in this case did not meet these three requirements and was therefore invalid. Curtis and Hall joined in Walker's Suppression Motion.

         The State opposed the motion, arguing that the warrant met the requirements set forth by the United States Supreme Court in United States v. Grubbs, 547 U.S. 90 (2006). The State also argued that the motion advocated a "hyper-technical warrant reading, " even though "it is well-settled that a search warrant and its support[] should be evaluated in totality, and examined with common sense, " citing State v. Sherlock, 70 Hawai'i 271, 274, 768 P.2d 1290, 1293 (1989). The circuit court denied the motion based on Grubbs, but also noted that the anticipatory search warrant was "a very, very sloppy and apparently hastily put together warrant."

         On October 10, 2011, the circuit court issued "Findings of Fact, Conclusions of Law, and Order Denying [the Suppression Motion]." The circuit court made the following relevant Conclusions of Law:

3. The State of Hawai'i has the authority to provide constitutional protections to citizens above and beyond that provided by the U.S. Constitution and the U.S. Supreme Court, and has done so when the Hawai'i Supreme Court has deemed necessary. State v. Kaluna, 55 Haw. 361, 367-69, 520 P.2d 51, 57-58 (1974).
4. The Hawai'i Supreme Court has, however, not expanded on the constitutional protections provided by the U.S. Constitution and U.S. Supreme Court with respect to anticipatory search warrants.
5. In accordance with controlling case law, anticipatory search warrants need not contain future tense anticipatory or triggering language where the accompanying supporting affidavit adequately demonstrates the anticipatory nature and intent of the warrant itself. U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494 (2006) .
7. This Court is bound to "pay great deference" to the probable cause determination made by the issuing judge, and is to employ "a common sense and realistic, and not a hypertechnical reading of affidavits in connection with the determination of probable cause." State v. Navas, 81 Hawai'i 29, 35 (Hawai'i App., 1995).
9. Read in totality, the Anticipatory Search Warrant at issue is in accordance with HRS Section 803-31 (as amended effective April 29, 1998), and is not constitutionally invalidated by present tense language that appears on page one of the warrant. HRS Section 8O3-3l[;] U.S. v. Grubbs, 547 U.S. 90, 126 S.Ct. 1494 (2006).

         On February 6, 2012, Curtis and Hall entered conditional no contest pleas to the amended charge of first-degree promoting a detrimental drug, reserving the right to appeal the circuit court's order denying the Suppression Motion and its subsequent order denying a motion to reconsider. On February 8, 2012, Curtis and Hall were each sentenced to pay a $5, 000 fine and a $105 crime victim compensation fee.[8]

         C. ICA Proceedings

         Curtis and Hall appealed to the ICA, arguing that the circuit court erred in denying their motion to suppress.

         The ICA held that the anticipatory search warrant was valid. State v. Curtis, 137 Hawai'i 43, 52, 364 P.3d 941, 950 (2015) . First, the ICA determined that Hawai'i law is similar enough to federal law to warrant applying Grubbs. The ICA noted that both the Hawai'i Constitution and U.S. Constitution "only require that the warrant particularly describe the place to be searched and the persons or things to be seized; they do not require that search warrants additionally 'include a specification of the precise manner in which they are to be executed.'" Id. at 49, 364 P.3d at 947. Additionally, the ICA asserted that both Federal Rules of Criminal Procedure (FRCP) Rule 41 and Hawai'i Rules of Penal Procedure (HRPP) Rule 41 "do not require that a copy of the search warrant be presented to the property owner or others before the warrant is executed." Id. at 50, 364 P.3d at 948. Given these similarities, the ICA concluded that Grubbs applied, and accordingly, anticipatory search warrants do not require triggering conditions to be valid.

         The ICA then declined to follow its conclusion in Scott I "that an anticipatory search warrant must itself state the triggering condition to be valid." Id. at 51, 364 P.3d at 949. The ICA based its reasoning on Scott I's lack of precedential value, and the fact that Grubbs was issued after Scott I had been overruled by Scott II. Further, the ICA noted that the subsequent amendments to HRS ยง 803-31 "did not ...

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