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State v. Quiday

Supreme Court of Hawaii

November 21, 2017

STATE OF HAWAI'I, Petitioner/Plaintiff-Appellee,
v.
BENJAMIN M. QUIDAY, Respondent/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-13-0004085; CR. NO. 12-1-1644)

          Stephen K. Tsushima for petitioner.

          Susan L. Arnett for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          NAKAYAMA, J.

         I. INTRODUCTION

         The issue presented in this case is whether the use of three helicopter flyovers of Respondent/Defendant-Appellant Benjamin M. Quiday's (Quiday) residence, whereby a police officer observed two rows of potted marijuana plants growing in the curtilage of Quiday's house with the naked eye, was a "search" within the meaning of article I, section 7 of the Hawai'i Constitution. For the reasons stated below, we hold that aerial surveillance of the curtilage of a private residence conducted for the purposes of detecting criminal activity thereupon qualifies as a "search" in the constitutional sense. As such, the aerial surveillance conducted by the police in this case constituted unconstitutional, warrantless searches. Therefore, the evidence seized pursuant to the search warrant that was based upon the police officer's observations during the flyovers was the fruit of the poisonous tree, and Quiday's motion to suppress evidence should have been granted.

         Accordingly, we affirm the Intermediate Court of Appeals' (ICA) July 20, 2016 judgment on appeal filed pursuant to its June 21, 2016 opinion, which vacated the Circuit Court of the First Circuit's (circuit court) August 19, 2013 findings of fact, conclusions of law, and order denying Quiday's motion to suppress evidence and remanded the case for further proceedings, but on different grounds.

         II. BACKGROUND

         On October 9, 2012, Officer Joseph Hanawahine (Officer Hanawahine) of the Honolulu Police Department (HPD) was "assigned a narcotic complaint, complaint number 12443, which related that there were pakalolo[1] plants being grown at 94-325 Kahualena Street" in Waipahu, Hawai'i (Waipahu Residence). After receiving the anonymous tip, Officer Hanawahine used Google Earth[2] to verify and confirm the location of the address.

         On October 22, 2012, Officer Hanawahine conducted aerial reconnaissance of the Waipahu Residence by helicopter, flying at an estimated height of 420 feet. Officer Hanawahine attested that "based on [his] training and experience, [he] observed about twenty to twenty five (20-25) plants with the color and structure resembling that of marijuana plants[.]" The plants were placed in two rows of black pots located directly along a wall on the west side of the residence. The plants were not stored in a greenhouse or shed, nor were they covered by the eaves of the rooftop. They also were not covered by any tarp or cloth.

         Later on October 22, 2012, Officer Hanawahine conducted a medicinal marijuana check with the State of Hawai'i Narcotics Enforcement Division (NED) to determine if the Waipahu Residence was a location that was authorized to cultivate medicinal marijuana, or if anyone associated with the Waipahu Residence held a medicinal marijuana permit.

         That same day, Officer Hanawahine also conducted ground reconnaissance of the Waipahu Residence. He attested that the residence he investigated on foot was the same residence that he had observed from the helicopter. Officer Hanawahine was unable to see any plants resembling marijuana from the street; the Waipahu Residence was surrounded by gates, walls, and fences, such that the backyard, where he had observed the marijuana plants while he was in helicopter, was not visible at ground-level.

         On October 23, 2012, Officer Hanawahine conducted further aerial reconnaissance of the Waipahu Residence by flying approximately 420 feet above the ground in a helicopter. He again observed the same marijuana plants on the west side of the house and noted no changes from his observations from the previous day. On the same day, NED informed Officer Hanawahine that the Waipahu Residence was not an authorized location to cultivate medicinal marijuana, nor were any of the names associated with the Waipahu Residence registered medicinal marijuana patients with a valid medicinal marijuana permit.

         Officer Hanawahine conducted a third round of aerial reconnaissance on October 23, 2012, again by flying approximately 420 feet above the ground in a helicopter. His observations were identical to the ones he had made in his prior two aerial reconnaissance trips.

         On October 26, 2012, the District Court of the First Circuit approved a search warrant, S.W. 2012-261, permitting a search of the Waipahu Residence for marijuana plants, related drug paraphernalia, and other evidence of narcotics transactions. The warrant was supported by Officer Hanawahine's affidavit, wherein he recounted his observations from his aerial and ground surveillance operations.

         On October 28, 2012, Sergeant Gregory Obara (Sergeant Obara) conducted ground reconnaissance of the Waipahu Residence by driving around the premises in an unmarked vehicle. While traveling towards Koko Head on Kahualena Street, he observed a male who appeared to be watering plants on the front western corner of the property. A short time later, while traveling west on Kahualena Street, Sergeant Obara saw the same man appearing to spray water on plants located on the west side of the residence.

         HPD executed the search warrant on October 29, 2012. During the search, HPD found Quiday in possession of marijuana and drug-related paraphernalia. HPD recovered twenty plants resembling marijuana plants from the area where Sergeant Obara had observed Quiday watering plants the day before. Sergeant Obara identified Quiday as the same person whom he had observed watering plants. Based on the evidence found during the search of the Waipahu Residence, Quiday was arrested.

         On November 1, 2012, Petitioner/Plaintiff-Appellee State of Hawai'i (the State) charged Quiday with one count of commercial promotion of marijuana in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 712-1249.5 (1) (a), [3]and one count of unlawful use of drug paraphernalia, in violation of HRS § 329-43.5(a).[4]

         A. Circuit Court Proceedings

         Quiday filed a motion to suppress evidence on April 8, 2013. He sought to "suppress any and all evidence seized from his home, as a result of the execution of Search Warrant S.W. 2012-261" because, inter alia, "Officer Hanawahine's resulting illegal aerial search violated Mr. Quiday's reasonable expectation of privacy[.]" The State filed a memorandum in opposition to Quiday's motion to suppress evidence on April 26, 2013, and filed a supplemental memorandum in opposition to Quiday's motion to suppress evidence on May 15, 2013.

         At a hearing held on July 24, 2013, the circuit court[5]orally denied Quiday's motion to suppress evidence. The circuit court subsequently filed its written findings of fact, conclusions of law, and order denying Quiday's motion to suppress evidence on August 19, 2013.

         Regarding whether Quiday's reasonable expectation of privacy had been violated due to the aerial surveillance, the circuit court found that while the "plants in Defendant's backyard were shielded from street view by gates, walls, and fences surrounding the residential property, " Quiday's marijuana plants "were clearly visible from aerial observation. They were not stored in a greenhouse or shed, nor under the eaves of the rooftop, nor covered by any sort of tarp or shade cloth." Thus, the circuit court ruled that:

Defendant has not expressed any subjective expectation of privacy from aerial observation in his backyard. The walls enclosing his backyard indicate Defendant's expectation of privacy from street level observers. However, the situation and location of the plants do not support such a claim as to view from the air. The view from overhead was unhindered by any sort of storage structure or visual obstruction.

         Additionally, the circuit court found that:

Defendant has not presented any evidence to support a claim that society is prepared to recognize an expectation of privacy from aerial observation as to the fully exposed contents in a walled backyard. On the contrary, Hawaii courts have expressly accepted the use of ...

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