Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Kapahu

United States District Court, D. Hawaii

June 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SHERI LEE PUALANI KAPAHU, Defendant.

          ORDER DENYING DEFENDANT'S RULE 33 MOTION

          Susan Oki Mollway, United States District Judge

         I. INTRODUCTION.

         Defendant 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.

         II. FACTUAL BACKGROUND.

         On 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.

         This 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.

         Agent 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.

Id.

         This 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.

         This 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.

         On 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.

         On 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.

         On May 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.

         In a 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, but ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.