Opinion
No. 30692.
2012-03-19
STATE of Hawai‘i, Plaintiff–Appellant, v. Marco RODRIGUES, Defendant–Appellee.
Appeal from The Circuit Court of The Fifth Circuit (CR. No. 08–1–0293). Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, on the briefs, for Plaintiff–Appellant. James S. Tabe, Deputy Public Defender, on the briefs, for Defendant–Appellee.
Appeal from The Circuit Court of The Fifth Circuit (CR. No. 08–1–0293).
Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, on the briefs, for Plaintiff–Appellant. James S. Tabe, Deputy Public Defender, on the briefs, for Defendant–Appellee.
MEMORANDUM OPINION
Plaintiff–Appellant State of Hawai‘i (State) appeals from the August 5, 2010 order issued by Circuit Court of the Fifth Circuit (circuit court)
suppressing as evidence a clear plastic packet containing methamphetamine discovered by police during a search incident to arrest.
The Honorable Kathleen N.A. Watanabe presided.
I.
BACKGROUND
On November 25, 2008, Defendant–Appellee Marco Paulo Rodrigues (Rodrigues) was charged by complaint with Promoting a Dangerous Drug in the Third Degree, in violation of Hawaii Revised Statutes (HRS) § 712–1243 (Supp.2011). Subsequently, Rodrigues moved to suppress evidence obtained from a warrantless search of his pockets by Officer Scott Williamson (Ofr.Williamson) arguing it was in violation of his rights under article I, section 7 of the Hawai‘i State Constitution and the Fourth and Fourteenth Amendments of the United States Constitution.
The State opposed the motion, arguing that the drugs discovered in Rodrigues's pocket were recovered during a valid search incident to a lawful arrest. The State claimed that Ofr. Williamson's practice, when conducting a search incident to a lawful arrest in a known drug trafficking area, “to pull out an arrestee's pockets from the top, visible area” was reasonable, based on an officer's need for safety because syringes or razor blades could be in the person's pockets and the officer “runs the risk of puncturing his or her skin in a hazardous manner” or may not be able to detect certain weapons or means of escape through a pat-down of the person. In the alternative, the State also argued that the packet would have been inevitably discovered during a pre-incarceration search at Kauai Police Department (KPD) cell block, during a custodial search to prevent introduction of weapons and dangerous drugs into the custodial environment.
Ofr. Williamson testified that he initially saw Rodrigues asleep in his vehicle and the vehicle had an “expired safety.” When Rodrigues could not produce a driver's license, a warrant check on the name he gave the officer revealed that Rodrigues had outstanding bench warrants. Ofr. Williamson then placed Rodrigues under arrest.
Ofr. Williamson conducted the search incident to this arrest which yielded a clear Ziploc-type bag that appeared to contain crystal methamphetamine out of Rodrigues's pocket, placed Rodrigues in the officer's vehicle, and transported Rodrigues to the cell block. Ofr. Williamson testified that at the cell block, he conducted a complete inventory search to assure that no contraband, weapons or dangerous instruments were taken into the cell block, and inventoried all items. This search included pockets and the insides of the person's shoes. After conducting this search, Ofr. Williamson completed the required screening forms, including an inventory of all Rodrigues's possessions, and conducted a presumptive test of the contents of the bag he recovered and obtained a positive result for methamphetamine.
Sergeant Eric Kaui (Sgt.Kaui) testified about the procedures for handling incoming detainees into the cell block area. Sgt. Kaui stated that officers bringing arrestees into the cell block area are responsible for conducting a thorough search of all areas of the arrestee's clothing, including pockets, as “there are only certain things that they can enter the cell with.” He testified that cell block searches are conducted on everyone brought into the cell block environment.
On March 17, 2009, the circuit court entered an order granting the Motion to Suppress. The State appealed and the case was assigned appeal No. 29759. On January 28, 2010, this court issued its opinion, State v. Rodrigues, 122 Hawai‘i 229, 225 P.3d 671 (App.2010) (Rodrigues I), in which we vacated the circuit court's March 17, 2009 order granting Rodrigues's motion to suppress. This court held that the circuit court should have considered the State's argument that a packet containing drugs found in Rodrigues's pocket would have inevitably been discovered. The case was remanded to the circuit court to make additional findings of fact and conclusions of law regarding the State's inevitable discovery claim.
On remand, both parties stated that they had no further evidence to present, although the State filed a Supplemental Memorandum reiterating the testimony of Ofr. Williamson and Sgt. Kaui concerning the procedures at the cellblock and again argued that the packet would have been “inevitably discovered pursuant to a lawful inventory search at KPD cellblock.”
The circuit court filed its August 5, 2010 Findings of Facts, Conclusions of Law and Order Granting Defendant's Motion to Suppress Evidence (Order) stating, in pertinent part:
FINDINGS OF FACT
1. On November 23, 2009 at approximately 7:54 a.m., Kauai Police Department Officer Scott Williamson saw Defendant Rodrigues sleeping in a silver two-door Hyundai at Hanamaulu Beach Park.
...
6. Officer Williamson discovered that defendant Rodrigues had three outstanding bench warrants and handcuffed him.
7. Officer Williamson conducted a pat-down search on Defendant's torso but when he got to Defendant's shorts, Officer Williamson turned the pockets inside out.
8. Officer Williamson testified that, for his safety, it was his practice that when he conducts a search of an arrestee, he pulls out the arrestee's pockets from the top rather than doing a pat-down search.
9. Officer Williamson testified that he had no reason to believe that Defendant Rodrigues was concealing weapons, drugs, contraband or needles.
10. As Officer Williamson turned Defendant's left shorts' pocket inside out, he found a clear zip-lock baggie that contained a crystal-like substance in Defendant's left front pocket.
11. Officer Williamson placed Defendant Rodrigues in his police vehicle and transported him to police cellblock in Lihue.
CONCLUSIONS OF LAW
1. The Fourth Amendment to the United States Constitution protects the rights of citizens to be free from unreasonable searches and seizures.
2. Article 1, Section 7 of the Hawaii Constitution is identical to the Fourth Amendment to the United States Constitution.
3. Officer Williamson was entitled to a pat-down search but he was not authorized to remove the zip-lock baggie from Mr. Rodrigues pocket unless he had reason to believe that the items felt are fruits or instrumentalities of the crime for which the defendant is arrested, or to protect the officer from attack, or to prevent the offender from escaping. State v. Enos, 68 Haw. 509, 510–511, 720 P.2d 1012, 1013–1014 (1986).
4. Any warrantless search or seizure is presumed to be illegal and the burden always rests with the government to prove that such actions fall within a specifically established and well-delineated exception to the warrant requirement. State v. Ortiz, 67 Haw. 181, 683 P.2d 822 (1984).
5. One such exception is the ‘inevitable discovery’ rule adopted by the Hawaii Supreme Court in 1995 in State v. Lopez, 78 [Hawai‘i] 433; 78 Hawai‘i 433, 896 P.2d 889 (1995).
6. Regarding the ‘inevitable discovery’ rule, the Hawaii Supreme Court “require[s] the prosecution to present clear and convincing evidence that any evidence obtained in violation of article I, section 7 [of the Hawaii Constitution] would inevitably have been discovered by lawful means before such evidence may be admitted under the inevitable discovery exception to the exclusionary rule[.”] State v. Lopez, 78 [Hawai‘i] 433, 451; 78 Hawai‘i 433, 896 P.2d 889 (1995).
7. The Hawaii Supreme Court further noted that “[c]lear and convincing evidence means evidence that will produce in the mind of a reasonable person a firm belief as to the facts sought to be established.[”] Id.
8. The ‘inevitable discovery’ rule is not applicable because the state failed to produce clear and convincing evidence which would demonstrate that the defendant was incapable of retrieving and discarding the contraband from his person without an officer's notice between the time of his arrest and the inventory search and that the evidence would have been inevitably discovered.
9. Officer Williamson failed to testify that Mr. Rodrigues was restrained in such a way as to make him incapable of discarding the zip-loc baggie from his pocket between the time of his arrest and the inventory search had the baggie not been obtained via Officer Williamson's illegal search.
10. The State did not present any evidence that Officer Williamson or another officer continuously observed Mr. Rodrigues after being handcuffed or that Officer Williamson [n]ever left Mr. Rodrigues unattended.
11. Additionally, unlike the defendant in State v. Silva [,] 91 [Hawai‘i] 111; 91 Hawai‘i 111, 979 P.2d 1137 (1999), Mr. Rodrigues never testified or acknowledged that he was unable to retrieve the contraband after being handcuffed.
ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
Based on the foregoing Findings of Facts and Conclusions of Law, IT IS HEREBY ORDERED that the clear plastic baggie containing a crystal-like substance that was removed from Defendant's left front shorts' pocket on November 23, 2008 [,] is hereby suppressed and precluded from use at trial.
The State timely filed its notice of appeal from this Order.
II.
DISCUSSION
In this appeal, the State argues that the circuit court erred by (1) failing to make essential findings of fact regarding events that occurred after Rodrigues was placed in the police transport vehicle and relevant to the issue of whether the subject evidence was admissible under the inevitable discovery doctrine, (2) suppressing the evidence in light of the unrefuted testimony that the evidence would have been discovered during a routine inventory search at the KPD cell block based on its finding that Rodrigues could have discarded the packet before the inventory search was conducted where there was no evidence that he would have done so, (3) distinguishing this case from State v. Silva, 91 Hawai‘i 111, 979 P.2d 1137 (App.1999), because Rodrigues did not testify or acknowledge that he was unable to retrieve the packet from his pocket after being handcuffed although Rodrigues's whereabouts were unknown at the time of the hearing on remand, and (4) concluding that the State failed to present clear and convincing evidence that the packet would not have been inevitably discovered at the cell block, even if it was not removed from Rodrigues's pocket upon his arrest.
In Rodrigues I, this court held that, “[w]ithout a doubt, Officer Williamson's actions in turning Rodrigues's pockets inside-out violated” the limited scope of a search incident to arrest. Rodrigues I, 122 Hawai‘i at 235, 225 P.3d at 677. However, because the circuit court failed to make “findings of fact regarding the credibility of the police officers or the weight given to their testimony in light of the other evidence and arguments related to the issue of inevitable discovery[,]” and “reached no conclusions regarding whether the State met its burden of proof, instead rejecting the applicability of the inevitable discovery exception as a matter of law[,]” we remanded the case for the circuit court to determine the factual basis for the application of the inevitable discovery doctrine. Id., at 238, 225 P.3d 671,225 P.3d at 680. As it “is not the role of the appellate court, in the first instance, to make determinations as to the credibility of the witnesses or the weight of the evidence[,]” we specifically declined to say that the State either presented clear and convincing evidence supporting the application of the inevitable discovery rule or failed as a matter of law, in meeting this burden. Id. at 238, 225 P.3d at 680.
On remand, the parties declined to present additional evidence; Rodrigues himself did not appear for the three court proceedings held on remand, and it appears from the record that his counsel did not know his whereabouts. The circuit court did not articulate any findings at any of these proceedings, but rather, appears to have directed counsel to file further submissions.
The circuit court's Order does not contain either credibility or weight determinations and does not include findings of fact regarding the events relevant to the inevitable discovery rule.
On the last of the three appearances, the following exchange occurred between the circuit court and counsel:
[Prosecutor]: So, your Honor, just so I'm clear. We're going to be preparing a memorandum of law?
THE COURT: Yes. It would be that or you could simply address it in a proposed finding of fact or findings of fact.
...
THE COURT: And for [defense counsel], it's addressing that finding of fact, because, [defense counsel] you had previously concluded, and the Court had agreed with you, that the State lacked the basis for stating that there was inevitable—basis for inevitable discovery and also the simple reference to State v. Lopez.
I think in your previous arguments, [defense counsel], you had said that State v. Silva, basically, that there was a problem with that decision by the Hawaii Supreme Court. The Court carefully read that decision, and as I said, I'd like to draw your attention to footnote number three on page 15. And the Court would agree with you-I'm sorry, let me just back up.
I think you had argued previously that perhaps State v. Silva was not a good decision. I think it's more the case can be distinguished from the instant case. And the Court just needs you to simply address that.
On July 26, 2010, the State filed its supplemental memorandum, and on August 5, 2010, Rodrigues filed proposed findings of facts and conclusions of law. With the exception of finding of fact no. 9, the circuit court adopted the Rodrigues's proposed findings of fact and conclusions of law, and entered its Order on the same date.
Rather, it appears that the circuit court has again ruled, as a matter of law, that the inevitable discovery exception does not apply in this case. The circuit court concluded that “the ‘inevitable discovery’ rule is not applicable because the state failed to produce clear and convincing evidence which would demonstrate that the defendant was incapable of retrieving and discarding the contraband from his person without an officer's notice between the time of his arrest and the inventory search [.]” The circuit court did not cite to any legal authority for this requirement.
“We review the circuit court's ruling on a motion to suppress de novo to determine whether the ruling was ‘right’ or ‘wrong’.” State v. Edwards, 96 Hawai‘i 224, 231, 30 P.3d 238, 245 (2001) (quoting State v. Jenkins, 93 Hawai‘i 87, 100, 997 P.2d 13, 26 (2000)) (internal quotation marks omitted).
The “right/wrong” standard of review also applies to the trial court's [conclusions of law], which allows the appellate court to “examine the facts and answer the question without being required to give any weight to the trial court's answer to it.” State v. Lopez, 78 Hawai‘i 433, 440, 896 P.2d 889, 896 (1995) (quoting State v. Miller, 4 Haw.App. 603, 606, 671 P.2d 1037, 1040 (1983)). “Thus, ‘[a conclusion of law] is not binding upon the appellate court and is freely reviewable for its correctness.’ “ Id. (quoting State v. Bowe, 77 Hawai‘i 51, 53, 881 P.2d 538, 540 (1994)).
State v. Kaleohano, 99 Hawai‘i 370, 375, 56 P.3d 138, 143 (2002). The prosecution bears the burden of presenting “clear and convincing evidence that any evidence obtained in violation of article I, section 7 [of the Hawai‘i State Constitution], would inevitably have been discovered by lawful means before such evidence may be admitted under the inevitable discovery exception to the exclusionary rule.” State v. Lopez, 78 Hawai‘i 433, 451, 896 P.2d 889, 907 (1995). “Clear and convincing evidence means such evidence as will produce ‘in the mind of a reasonable person a firm belief as to the facts sought to be established.’ “ Id., at 451 n. 30, 896 P.2d at 907 n. 30 (quoting Almeida v. Almeida, 4 Haw.App. 513, 518, 669 P.2d 174, 179 (1983) (internal quotation marks omitted).
The uncontroverted evidence presented here showed that Rodrigues was originally arrested based on three outstanding bench warrants, was handcuffed, was searched incident to that arrest, but that the search, which yielded a clear plastic bag containing what appeared to be crystal methamphetamine, exceeded the lawful scope of that search, was placed in Ofr. Williamson's vehicle and was transported to police cell block, where an inventory search was conducted on his person, including his pockets, consistent with standard procedures prior to placement into a secure environment. On this record, we conclude there was clear and convincing evidence that the packet containing methamphetamine would have been discovered when police conducted their inventory search prior to admitting Rodrigues into police cell block.
Nor do we find the case of State v. Silva, 91 Hawai‘i 111, 979 P.2d 1137 (App.1999), cert. granted on other grounds and aff'd, 91 Hawai'i 80, 979 P.2d 1106 (1999), to the contrary. There, we affirmed the circuit court's denial of a motion to suppress and rejected Silva's argument that there was insufficient evidence to support the trial court's finding that “in-an inventory search, that the contents of [Defendant's] pockets would have been revealed. And ... there's nothing in the record to suggest that the contraband was in a closed container.” Id. at 115, 120, 979 P.2d at 1141, 1146.
There, we affirmed the circuit court's factual findings. Here, the circuit court did not make factual findings regarding the events relevant to the issue of inevitable discovery. Rather, the circuit court appeared to require, as a matter of law, that evidence excluding other possible scenarios be presented by the prosecution (i.e., requiring the prosecution to negate any possibility that the defendant could discard the contraband without detection) in order to carry its burden of proof. We decline to endorse such a requirement, absent any evidence that those alternative scenarios could reasonably have occurred.
Therefore, we vacate the Circuit Court of the Fifth Circuit's Order and remand for proceedings consistent with this opinion. NAKAMURA, C.J. and FUJISE, J., with REIFURTH, J. dissenting.
Dissenting Opinion of REIFURTH, J.
I respectfully dissent.
This case addresses the government's burden of proof when it wishes to admit at trial unlawfully seized contraband evidence that, it claims, would inevitably have been discovered by lawful means. Contrary to federal law and that of some other states, Hawai‘i law requires that the government first show “clear and convincing evidence”
of such inevitable discovery. State v. Lopez, 78 Hawai‘i 433, 451, 896 P.2d 889, 907 (1995).
“[C]lear and convincing” evidence may be defined as an intermediate standard of proof greater than a preponderance of the evidence, but less than proof beyond a reasonable doubt required in criminal cases. It is that degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established, and requires the existence of a fact be highly probable.
Masaki v. Gen. Motors Corp., 71 Haw. 1, 15, 780 P.2d 566, 574 (1989)
The majority concludes that there was clear and convincing evidence that the packet containing methamphetamine would have inevitably been discovered when the police conducted their inventory search prior to admitting Rodrigues into the KPD cellblock. Mem. Op. at 9. The conclusion appears to be based on the majority's (i) observation that the circuit court did not make factual findings regarding the events relevant to the issue of inevitable discovery, and (ii) disinclination to require that the State introduce evidence tending to exclude
“other possible scenarios” in order to carry its burden of proof absent any evidence from Rodrigues that those alternative scenarios occurred. Mem. Op. at 10.
The majority uses the word “excluding” rather than “tending to exclude” when it states that “the circuit court appeared to require, as a matter of law, that evidence excluding other possible scenarios be presented by the prosecution ... in order to carry its burden of proof. We decline to endorse such a requirement, absent any evidence that those alternative scenarios could reasonably have occurred.” Mem. Op. at 10. It may be that the majority refers to conclusion of law (“COL”) 8, where the circuit court states that “the state failed to produce clear and convincing evidence which would demonstrate that the defendant was incapable of retrieving and discarding the contraband from his person without an officer's notice between the time of his arrest and the inventory search [.]” I assume that neither the circuit court, in adopting the phrase “demonstrate that the defendant was incapable,” or the majority, in adopting the word “excluding,” intended anything more than what the clear and convincing test requires: that the State present evidence demonstrating that it was highly probable that the defendant was incapable of retrieving or discarding the contraband during the time in question. If the majority believed that the circuit court applied the wrong test, presumably it would have remanded for further findings under the proper test rather than vacating the Order and directing that trial proceed on the underlying charge. See, e.g., State v. Salinas, 715 S.E.2d 262, 263–64 (N.C.Ct.App.2011).
The majority's conclusion is undermined by its premises. The circuit court made factual findings related to the issue of inevitable discovery, although it mislabeled several of them. And, although the majority correctly focuses on the evidence necessary to satisfy the burden of proof under hypothetical scenarios, it excuses the State's failure to satisfy its burden by imposing upon Rodrigues a novel obligation to first introduce evidence that an alternative scenario could reasonably have occurred. As a result, I would affirm.
I. The Circuit Court Made Findings Necessary to Suppress
The circuit court made factual findings regarding the events relevant to the issue of inevitable discovery. Finding of fact (“FOF”) 9 in the August 5, 2010 Order was newly added and addressed Officer Williamson's contemporaneous belief concerning the possibility of Rodrigues accessing his pockets while handcuffed. In addition, the fact that the circuit court mislabeled its newly added COL 9, 10, and 11 as COL rather than FOF does not change the fact that they were also newly-added FOF related to the issue of inevitable discovery. “A determination that embraces an ultimate fact is a factual finding subject to the clearly erroneous standard of review even though classified as a COL.” Crosby v. State Dep't. of Budget & Fin., 16 Hawai‘i 332, 340, 876 P.2d 1300, 1308 (1994).
While the majority is correct that “[t]he circuit court's Order does not contain either credibility or weight determinations,” Mem. Op. at 7–8, it is incorrect to state that the Order “does not include findings of fact regarding the events relevant to the inevitable discovery rule.” Id. at 8. In fact, the Order includes all the findings necessary in order to justify the circuit court's conclusion. See Lopez v. Tavares, 51 Haw. 94, 97, 451 P.2d 804, 806 (1969) (the court needs only to issue brief, definite, and pertinent findings sufficient “to disclose to this court the steps by which the trial judge reached his ultimate conclusion on each factual issue”).
II. The State's Hypothetical is Incomplete and Unproven
Taken together, the logic of the State's hypothetical—Officer Williamson's stated belief that Rodrigues was not concealing weapons, drugs, contraband or needles—and the fact that Rodrigues was already handcuffed, made it reasonable for the circuit court to require that the State offer some evidence that the contraband would remain on Rodrigues's person during transport as part of satisfying its burden. Rather than address the issue, however, the State simply claimed that contraband evidence unlawfully seized upon Rodrigues's arrest would have inevitably been discovered upon a subsequent cellblock inventory search, without offering any evidence concerning the transport.
The State relied, as it must in an inevitable-discovery case, on a hypothetical.
The State's hypothetical is that Rodrigues was originally arrested based on three outstanding bench warrants; he was searched incident to that arrest, but that the search, yielding a clear plastic bag containing what appeared to be crystal methamphetamine, exceeded the lawful scope of that search; and he was placed in Officer Williamson's vehicle and transported to the police cellblock where an inventory search was conducted on Rodrigues's person, including his pockets, consistent with standard procedures. Mem. Op. at 9.
The inevitable discovery exception to the exclusionary rule involves consideration of a hypothetical constructed and offered by the State explaining how, if the underlying illegal seizure had not occurred, the contraband would nevertheless have been inevitably discovered by legal means.
The inevitable discovery exception necessarily implicates a hypothetical finding that differs in kind from the factual finding that precedes application of the independent source rule....
To ensure that this hypothetical finding is narrowly confined to circumstances that are functionally equivalent to an independent source, and to protect fully the fundamental rights served by the exclusionary rule, I would require clear and convincing evidence before concluding that the government had met its burden of proof on this issue.
State v. Lopez, 78 Hawai‘i at 450–51, 896 P.2d at 906–07 (citations omitted) (quoting Nix v. Williams, 467 U.S. 431, 459–60, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (Brennan, J., dissenting)) (adopting the inevitable-discovery exception and the clear-and-convincing-evidence standard for use in Hawai‘i).
The State's hypothetical did not address, and the State offered no evidence addressing, the likelihood of the contraband remaining in Rodrigues's possession during his transport to the KPD cellblock. Specifically, the State offered no evidence on the issue of Rodrigues's inability, while handcuffed, to discard or destroy the contraband, or any police procedures in place that would have resulted in recovery of any discarded evidence. Consequently, the circuit court concluded that the State failed to satisfy its burden to present clear and convincing evidence that the contraband would have inevitably been discovered.
State v. Lopez requires that the court addressing an inevitable discovery claim consider carefully the outcome of the proffered hypothetical circumstances so as to assure that its “speculation as to the outcome of [the] hypothetical” is “as close to correct as possible.” 78 Hawai‘i at 451, 896 P.2d at 907. Since the evidence supporting the State's proposed hypothetical was clearly incomplete, I would concur with the circuit court that the State failed to present clear and convincing evidence on the inevitable discovery of the contraband.
The majority's decision reduces to the conclusion that it was not necessary for the State to present any evidence on the question of whether Rodrigues could access his pockets while handcuffed and discard or destroy the contraband while in transit because Rodrigues did not raise the issue himself. The State argues that it is not obligated to demonstrate that Rodrigues would not or could not have discarded the evidence, observing that “[i]n neither [ Lopez nor Silva ] is there any discussion at all about the possibility that the defendant could have or would have discarded or destroyed evidence before it would have been inevitably discovered by police.” Neither Lopez nor Silva, however, supports the State's position.
In Lopez, the Hawai‘i Supreme Court held that the prosecution failed to sufficiently demonstrate that the evidence suppressed at trial would inevitably have been discovered via lawful means. 78 Hawai‘i at 452, 896 P.2d at 908. While the decision does not explicitly discuss the possibility that the defendant might have discarded or destroyed the contraband evidence, the Court's ruling is premised specifically on the fact that “the record lacks the clear and convincing evidence necessary to show that the evidence recovered from the [co-defendant's] home as a result of [the] illegal search, would have still been there.” Id. (emphasis added).
Silva, on the other hand, involved a similar post-arrest transport to the cellblock where an inventory search would be conducted. Although this court did not discuss whether the defendant might have discarded or destroyed the evidence, it nevertheless held that it was not clearly erroneous for the trial court to conclude that the State had produced clear and convincing evidence that the contraband evidence would have been retrieved under the inevitable discovery rule. 91 Hawai‘i at 121, 979 P.2d at 1147. In coming to that conclusion, however, it was unnecessary to address the possibility that the defendant might discard or destroy evidence while handcuffed in transit because Silva had testified that he was unable to access his pockets while he was handcuffed.
Id. at 114, 979 P.2d 1137, 979 P.3d at 1140.
The State also argues that the circuit court in COL 11 erroneously-distinguished this case from Silva. The State contends that “as a matter of policy, it was improper for the [circuit court] to weigh [the fact that Rodrigues did not testify or acknowledge that he was unable to retrieve the contraband evidence after being handcuffed, unlike the defendant in Silva ] in favor of suppression and to rely on it to distinguish this case from Silva ” because, the State argues, the prosecution typically does not call a defendant to testify at suppression hearings and cannot compel a defendant to do so. As explained above, however, the circuit court properly distinguished Silva. Furthermore, the State's argument misses the point. The State is not required to obtain testimony from the defendant that he could not reach his pants' pockets while handcuffed, but it is required to offer some clear and convincing evidence that the contraband evidence would remain on the defendant's person until it could be discovered at the cellblock inventory search. Thus, the circuit court did not erroneously distinguish Silva.
The State goes further and impliedly argues that the circuit court should have held as a matter of law that Rodrigues could not discard any evidence contained in his pocket because “in Hawaii, there is no legal precedent for recognition of a defendant's right to discard evidence.” Recognition of the State's failure to present facts sufficient to justify the application of the inevitable-discovery rule in this case, however, does not amount to creating a right to discard evidence. There is no such right, and it is not a part of the analysis. Arrestees have been known to discard evidence, and it is the State's burden, once the underlying search has been determined to be illegal, to establish by clear and convincing evidence that an arrestee would not be able to discard the evidence that the State contends would inevitably have been discovered. As we noted in Rodrigues I:
In support of this proposition, Rodrigues cites several cases from other jurisdictions wherein defendants have been able to retrieve and discard similar baggies from their persons while handcuffed. See, e.g., Williams v. State, 784 S.W.2d 428 (Tex.Crim.App.1990) (police found cocaine beneath the patrol car's backseat where the handcuffed defendant was seated); State v. Jimenez, [ ]73 Conn.App. 664, 808 A.2d 1190 ( [Conn.App.Ct.] 2002) (police officer found cocaine in backseat of police car after transporting defendant who had been handcuffed and frisked for weapons); Simmons v. State, [ ]299 Ga.App. 21, 681 S.E.2d 712 ( [Ga.Ct.App.] 2009) (officer discovered cocaine wedged in backseat of police car even though defendant had been searched and handcuffed).
122 Hawai‘i at 235, 225 P.3d at 677. Whether Rodrigues could access the contraband evidence from his pocket after being handcuffed and thereafter discard or destroy it is a question of fact, not a question of law.
As we noted above, supra, at 2–3, the State's own evidence and arguments tended to suggest that Rodrigues might have been able to access his pocket after his arrest. Officer Williamson testified that despite the fact that he had no reason to believe that Rodrigues was concealing any type of contraband, was armed, or had needles, he pulled out Rodrigues's pocket to look for a means of escape. In the State's opposition to the Motion to Suppress, the State posited that an officer needed to pull out an arrestee's pocket to look for a “means of escape like a handcuff key or lock pick.”
If an officer searches for a handcuff key or lock pick in an arrestee's pocket even though the arrestee is to be handcuffed and transported to a cellblock for an inventory search, it at least suggests that the officer believes that the arrestee may be able to access his pocket while handcuffed. If an arrestee cannot access his pocket after being handcuffed, it would not appear to matter that his pocket contained a handcuff key or lock pick.
Since it was the officer's own pat-down practice and explanation that suggested that Rodrigues might access his pocket after being handcuffed, the circuit court reasonably concluded that it was the State's obligation to present clear and convincing evidence that Rodrigues could not discard the contraband evidence from his pocket after he was arrested but before a cellblock inventory search could be conducted.
Here, the State proposes only one hypothetical circumstance upon which it would base the inevitable-discovery exception: that the contraband evidence would have been discovered after transport upon the cellblock inventory search. The circuit court's requirement that the State establish the predicate facts (that the contraband would have been on Rodrigues's person at the time of the cellblock inventory search) before accepting the State's claim of inevitable discovery was properly calculated to assure that the State's proffered hypothetical was as close to correct as possible. See State v. Lopez, 78 Hawai‘i at 451, 896 P.2d at 907.
III. The Majority's Decision Would Reverse the Burden of Proof Necessarily Accompanying the Clear–and–Convincing Standard
The State further argues that the circuit court erred because there was no evidence or argument that the contraband evidence would or could have been discarded. Rodrigues, however, is not required to present evidence or argument to disprove the State's claim of inevitable discovery. The defendant “is in possession of no independent evidence concerning whether the evidence that had been seized unlawfully would have otherwise been discovered through lawful means.” See State v. Sugar, 100 N.J. 214, 495 A.2d 90, 103 (N.J.1985). Thus, the State carries the burden to establish the secure transport of the evidence.
Cases on chain of custody are instructive. To establish a foundation for the admission of evidence, such as drugs, that is not readily identifiable, the proponent of the evidence must show a chain of custody for the item “with sufficient completeness to render it improbable that the original item has ... been contaminated or tampered with.” United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.1989) (quoting E.W. Cleary, McCormick on Evidence § 212 at 668 (3d ed.1984)) (internal quotation marks omitted); see also State v. Olivera, 57 Haw. 339, 344, 555 P.2d 1199, 1202 (1976). Once the threshold showing of a sufficiently complete chain of custody has been made, deficiencies in the chain go to the weight of the evidence, not its admissibility. Cardenas, 864 F.2d at 1531.
Here, no threshold showing was made as the State offered no evidence at all on the issue of the secure transport of the contraband evidence to the KPD cellblock. As such, I would hold that the circuit court did not err in concluding that the State did not satisfy its burden by merely alleging that the contraband would inevitably have been discovered after Rodrigues was transported to the cellblock.
In sum, the logic of the State's argument is incomplete and, if applied, would excuse the State's failure to meet its burden of proof. In order to establish its theory of inevitable discovery, the State must present clear and convincing evidence of the predicate fact that Rodrigues would arrive at the cellblock with the contraband evidence on his person. The State, however, failed to address the issue at all. It presented no testimony or any credible evidence to support the proposition that Rodrigues would have remained in possession of the contraband while he was transported in the back seat of Officer Williamson's vehicle and that the evidence would have been in his possession at the time of the cellblock inventory search. Irrespective of the fact that it might have been easy for the State to satisfy its obligation, the fact is that it did not.
Was Officer Williamson able to observe Rodrigues throughout the transport to the cellblock?
Did another officer keep his attention focused on Rodrigues throughout the ride? Did the police search the vehicle before and after the transport to determine if anything was left behind during the ride? Or were the handcuffs themselves sufficiently restraining that Rodrigues could not access his pants' pockets while seated in the vehicle? These and similar questions were unaddressed by the State. The circuit court might reasonably have found evidence of any one of them to be sufficient, but none was offered. Rather, the State argues and the majority appears to agree that the singular hypothetical that Rodrigues, with contraband in his front pants' pocket, was handcuffed, placed into a police vehicle, and transported to the KPD cellblock where an inventory search would take place clearly and convincingly demonstrates that the contraband would have remained on Rodrigues's person and inevitably would have been discovered during the inventory search.
The State appears to concede in its reply brief that Officer Williamson was not able to observe Rodrigues, understandably, due to the requirements of careful driving. The State contends that Rodrigues would have this court require that the State must show continual, active observation by an officer to prevail in an inevitable discovery argument. As should be evident from the discussion above, such a requirement is not a part of this analysis, nor would we need to adopt a “beyond a reasonable doubt” standard of proof in order to affirm.
Under the inevitable discovery exception, “the privacy rights of the citizens of the State of Hawai‘i may turn upon the outcome of the hypothetical [.]” State v. Lopez, 78 Hawai‘i at 451, 896 P.2d at 907. Consequently, it is “incumbent upon us to assure that our speculation is as close to correct as possible.” Id. Thus, “because we want to ensure that the added protection in the Hawai‘i Constitution is not vitiated by a ‘bad guess,’ we require the prosecution to present clear and convincing evidence that any evidence obtained in violation of article I, section 7 [of the Hawai‘i Constitution] would inevitably have been discovered by lawful means before such evidence may be admitted[.]” Id.
If we are to “safeguard[ ] the privacy rights of our citizens against unlawful government intrusions[,]” id. at 451 n. 29, 896 P.2d at 907 n. 29, and if the heightened standard is meaningful, it must mean at least that the prosecution's burden is not conditioned upon the defendant, from whom evidence has already been illegally seized, explaining first the logical failings in the State's own hypothetical. In the absence of any supporting facts from the State regarding transport security, I would hold that the circuit court did not err in concluding that the State failed to meet its burden.
Consequently, I would affirm.