United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S RULE 33 MOTION
Oki Mollway, United States District Judge
Sheri Lee Pualani Kapahu seeks relief under Rule 33 of the
Federal Rules of Criminal Procedure on the ground that
“newly discovered evidence compels allowing her to
withdraw her conditional plea and to reopen her Fourth and
Fifth Amendment suppression motions.” ECF No. 70,
PageID # 459. This court has already sentenced Kapahu, and
Kapahu has an appeal pending in the Ninth Circuit. This court
denies Kapahu's Rule 33 motion and declines to indicate
that it would reconsider its denial of her suppression
motions if the Ninth Circuit remanded the case.
October 5, 2016, this court filed its Order Denying Motion to
Suppress No. 1 (Fourth Amendment) and Motion to Suppress No.
2 (Fifth Amendment). ECF No. 30. The order noted that the
court had heard testimony from DEA Special Agent Richard
Jones during an evidentiary hearing on September 12, 2016.
Id., PageID # 110.
court found that, on June 28, 2016, Kapahu was about to board
a flight from Honolulu to Kauai when Agent Jones and Officer
Kaniho went up to her while she was standing in the boarding
line at the gate. Id., PageID # 112. Having received
a tip that Kapahu might be carrying drugs, Agent Jones
questioned her. Id., PageID # 113. Kapahu confessed
to carrying drugs, and Officer Kaniho retrieved the drugs
from Kapahu's purse. Id., PageID #s 114-16. The
entire encounter lasted about eight minutes. Id.,
PageID # 116.
Jones testified that Kapahu's reaction to his questions
suggested to him that she was indeed carrying drugs.
Id., PageID # 115. He viewed her reaction as
sufficient to allow him to detain her long enough to allow a
drug-sniffing dog to arrive and to see if it
“alerted.” Id. This court wrote:
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.
court denied Kapahu's motion to suppress based on an
alleged Fifth Amendment violation, concluding, “Kapahu
was not in custody before or at the time she confessed, and,
although in custody when she consented to the seizure of
drugs from her purse, was not then being interrogated.”
Id., PageID # 127. This court also noted that a
consent to search was not the type of incriminatory statement
to which the Fifth Amendment applied. Id., PageID #
125. This court ruled that Miranda did not bar use
of any of Kapahu's statements at the airport or any
challenged statement at the field office. Id.
court also denied Kapahu's motion to suppress based on an
alleged Fourth Amendment violation. Id., PageID #
141. Without ruling on whether Kapahu had consented to a
search of her purse for Fourth Amendment purposes, this court
ruled that the warrantless search was permitted as a search
incident to a lawful arrest. Id., PageID #s 137-38.
November 7, 2016, Kapahu pled guilty pursuant to a plea
agreement. See ECF No. 42. She limited her right to
appeal or collaterally attack her conviction and sentence,
but she retained the right to appeal this court's denial
of her motions to suppress. Id., PageID #s 182-82.
February 21, 2017, this court sentenced Kapahu. See
ECF No. 59. On February 23, 2017, judgment was entered, and
Kapahu subsequently filed her notice of appeal from this
court's order denying her motions to suppress.
See ECF No. 60; ECF No. 62.
3, 2017, with her appeal pending before the Ninth Circuit,
Kapahu filed the present Motion for Relief Pursuant to Rule
33. See ECF No. 70. She submits exhibits in
connection with her Rule 33 motion and argues that this
evidence “not only indicates that a dog sniff
did occur; it strongly suggests that the dog sniff
occurred before Officer Kaniho searched the
purse.” ECF No. 70, PageID # 465. Kapahu says that the
evidence also indicates that the agents had actually obtained
a search warrant that they failed to mention during the
hearing on her suppression motions. Id. She requests
an evidentiary hearing and further discovery. Id.,
PageID # 467.
minute order, this court wrote, “With respect to
Defendant Sheri Kapahu's Rule 33 motion, this court
directs the parties to file briefs in accordance with the
nonhearing motion deadlines in this court's local rules.
This court may, after reviewing the briefs, set a hearing,