Bennett testified he reached for the knapsack because of Ortiz's "suspicious behavior at that time, the answers he was giving me" and the "[e]arly morning hours, he had no right to be there as far as I was concerned." Prior to trial Ortiz moved to suppress the handgun, contending that once a law enforcement officer reduces personal property to his possession, the officer may not search the property either as incident to a valid investigative stop, see e.g., Terry v. Ohio, 392 U.S. 1 (1968) or as incident to a lawful arrest, relying on United States v. Chadwick, 433 U.S. 1 (1977) and State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980). The State sought to justify the warrantless search under several exceptions to the warrant requirement: as a protective search for weapons under Terry, as incident to an arrest, and under a "plain feel" or "plain touch" analog of the "plain view" exception.
E.g. State v. Jenkins, 62 Haw. 660, 662, 619 P.2d 108, 110 (1980). The established exceptions to the warrant requirement in Hawai'i are: when there is probable cause and exigent circumstances, probationary status, consensual searches, preincarceration searches, open view, "automobile exception[,]" stop and frisk, and plain view.
Ortiz's subjective expectation is one which society is prepared to recognize as reasonable since knapsacks are common repositories of personal effects. State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980) (knapsack); United States v. Meier, 602 F.2d 253 (10th Cir. 1979) (backpack). Ortiz's reasonable expectation of privacy thus generally entitled him to be free from a warrantless search and seizure of his knapsack, including the feeling or opening thereof.
This expectation of privacy, however, is diminished with regard to automobiles. See State v. Jenkins, 62 Haw. 660, 663, 619 P.2d 108, 111 (1980). Furthermore, no expectation of privacy exists when the individual exposes his actions in open view to the general public.
In Tagaolo's case, Tagaolo had a reasonable expectation of privacy in the contents of his fanny bag. He exhibited a subjective expectation of privacy which society recognizes as reasonable. See State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980) (knapsack), and United States v. Meier, 602 F.2d 253 (10th Cir. 1979) (backpack). Tagaolo's reasonable expectation of privacy entitled him to be free from all warrantless searches of the contents of his fanny bag.
This is particularly appropriate given the State's understandable reluctance to argue an issue that many courts have considered to be foreclosed by Sanders. See, e.g., United States v. Rigales, 630 F.2d 364 (CA5 1980); United States v. MacKay, 606 F.2d 264 (CA9 1979); State v. Jenkins, 619 P.2d 108 (Haw. 1980).
Even if KPD had, without the dog sniff, obtained a search warrant to search inside the truck for Numazawa's purse, it should have been readily identifiable and probable cause would have been required for a warrant to allow a further search of the contents of purses within the truck. See State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980) (requiring search warrant to search personal luggage taken by police from automobiles); State v. Wong, 68 Haw. 221, 708 P.2d 825 (1985) (holding warrantless search of handbag an unreasonable search despite defendant having stated he had vial of cocaine therein); State v. Wallace, 80 Hawai‘i 382, 405, 910 P.2d 695, 718 (1996) (holding that forty-three heat-sealed clear plastic packets containing cocaine seized during warrant allowing search of automobile for marijuana were not "closed" containers with a reasonable expectation of privacy requiring a warrant to conduct a further search).Hence, the circuit court should have granted Ikimaka's motion to suppress.
The well-established rule in this jurisdiction is that warrantless searches are presumptively unreasonable unless they fall within one of the carefully defined exceptions. State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980); State v. Kender, 60 Haw. 301, 588 P.2d 447 (1978); State v. Kaluna, 55 Haw. 361, 520 P.2d 51 (1974). A recognized exception to this rule arises when the investigating officer has probable cause and exigent circumstances exist, however, exigency must be determined on a case by case basis.
State v. Kender, 60 Haw. 301, 307, 588 P.2d 447, 451 (1978); State v. Elderts, 62 Haw. 495, 617 P.2d 89 (1980)." State v. Jenkins, 62 Haw. 660, 662, 619 P.2d 108, 110 (1980); see also State v. Fields, 67 Haw. 268, 281, 686 P.2d 1379, 1389 (1984); State v. Ortiz, 67 Haw. 181, 184, 683 P.2d 822, 825 (1984). The State would have us approve the search of the defendant's car under the automobile exception established in Carroll v. United States, 267 U.S. 132 (1925).
If anything is settled in the law of search and seizure, it is that a search without a warrant issued upon probable cause is unreasonable per se, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967); State v. Jenkins, 62 Haw. 660, 662, 619 P.2d 108, 110 (1980). Yet as we noted, "there is considerable authority supporting the proposition that probationers may lawfully be subjected to searches which, absent their probation status, would be deemed unlawful because of the absence of probable cause or a search warrant or both."