SEARCHES, SEIZURES AND INVASION OF PRIVACY


Section 7.  The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968  and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]


Law Journals and Reviews


  Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments.  8 HBJ 109.

  State v. Sherlock:  Police Use of a Controlled Purchase of Contraband to Corroborate an Informant's Tip.  12 UH L. Rev. 237.

  State v. Rothman:  Expanding the Individual's Right to Privacy Under the Hawaii Constitution.  13 UH L. Rev. 619.

  Employee Rights Under Judicial Scrutiny:  Prevalent Policy Discourse and the Hawai‘i Supreme Court.  14 UH L. Rev. 189.

  State v. Quino:  The Hawai‘i Supreme Court Pulls Out All the "Stops".  15 UH L. Rev. 289.

  Criminal Procedure Rights Under the Hawaii Constitution Since 1992.  18 UH L. Rev. 683.

  Wyoming v. Houghton:  The Bright Line Search Includes Passengers' Belongings.  22 UH L. Rev. 645.

  Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone:  The Need For Privacy in the Public Sphere.  27 UH L. Rev. 377.


Case Notes


  See also notes to U.S. Const. Amends. 1, 4.

  Section incorporates the 4th Amendment of the federal constitution and is intended to give the State the benefit of federal decisions construing the language.  45 H. 295, 309, 367 P.2d 499.

  State supreme court may extend greater protection than is extended by federal decisions, if deemed appropriate.  50 H. 138, 433 P.2d 593.

  Investigative encounter "consensual" only if, prior to start of questioning, person informed of right to decline participation and that person could leave at any time, and person thereafter voluntarily participates.  75 H. 558, 867 P.2d 903.

  No violation of defendant's due process right to a fair trial by prosecution's refusal to reveal exact dates of confidential informant's observations as exact dates were not necessary in order for defendant to challenge district court's findings of probable cause.  88 H. 396, 967 P.2d 228.

  Investigative stop lawful where officer articulated specific facts, including defendant's profuse perspiring and rapidly approaching officer with hands moving in pocket, to establish officer's objectively reasonable belief that "criminal activity was afoot"; subsequent pat down search by officer which was limited to defendant's outer clothing was lawful where it was objectively reasonable for officer to believe that defendant was armed with a knife and presently dangerous.  93 H. 502 (App.), 6 P.3d 374.


Privacy.

  Arrest of defendants sunbathing nude on public beach did not violate their right of privacy.  52 H. 226, 475 P.2d 684.

  Where government secret agent is invited to private home to purchase marijuana and later goes there and makes purchase, agent's activities do not constitute unreasonable invasion of privacy.  54 H. 513, 510 P.2d 1066.

  This provision does not elevate right of privacy to equivalent of First Amendment right.  56 H. 271, 535 P.2d 1394.

  Helicopter observation of open marijuana patch was not "an invasion of privacy".  58 H. 412, 570 P.2d 1323.

  Words "invasion of privacy" were designed to protect against extensive governmental use of electronic surveillance techniques and undue governmental intrusion into areas of a person's life necessary to insure individuality and human dignity.  58 H. 412, 570 P.2d 1323.

  Use by police of ruse to effect voluntary opening of door and subsequent entry without use of force for purpose of executing lawful arrest warrant reasonable under this section.  83 H. 13, 924 P.2d 181.

  Regardless of the number of times that the police tested defendant's blood sample for its DNA, no violation of defendant's constitutional right to privacy occurred because the analyses did not exceed the objective for which the original warrant was sought--DNA testing for the purpose of identification.  103 H. 38, 79 P.3d 131.

  Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine.  104 H. 109, 85 P.3d 634.

  Even assuming the crime stoppers' anonymous tip was not "tainted" as a result of it being relayed to school officials via a police officer, the anonymous tip failed to provide even reasonable suspicion, much less probable cause, to justify the search of minor; the anonymous tip bore no indicia of reliability--the identity or status of the informant, the time the tip came in, the basis, if any, for the informant's knowledge, and the reliability of its assertion of illegality.  104 H. 403, 91 P.3d 485.

  Where police had no specific or articulable basis to believe that prior arrestee was in defendant's vehicle, police lacked reasonable suspicion to stop defendant's vehicle.  106 H. 177, 102 P.3d 1075.


Search and seizure.

  Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3.00 fee to enter bay designated a marine life conservation district and nature preserve were not "seized" in violation of the Fourth Amendment to the U.S. Constitution or this section; stopping to pay $3.00 entrance fee at turnstile did not constitute an impermissible seizure. 215 F. Supp. 2d 1098.

  Use of flashlight by police officer in scanning interior of automobile lawfully stopped for traffic offense is not per se unreasonable search and seizure.  50 H. 461, 443 P.2d 149.

  Scope of pre-incarceration search.  55 H. 361, 520 P.2d 51.

  Scope of search incident to lawful arrest; can be no broader than necessary; in construing Hawaii constitution, need not follow U.S. supreme court (U.S. v. Robinson, 94 S CT 467 and Gustafson v. Florida, 94 S CT 488).  55 H. 361, 520 P.2d 51.

  Warrantless search and seizure of property in area open to public not unreasonable; in area not open to public unreasonable absent exigent circumstances.  60 H. 197, 587 P.2d 1224.

  Elements of legitimate expectation of privacy.  61 H. 117, 596 P.2d 773.

  Pre-incarceration search is justified.  61 H. 291, 602 P.2d 933.

  Stop and frisk, justified.  63 H. 553, 632 P.2d 1064.

  Warrantless search.  Exigent circumstances lacking.  63 H. 553, 632 P.2d 1064.

  Procedural requirements for seizure of materials in obscenity prosecutions.  63 H. 596, 634 P.2d 80.

  Standard for suppression of evidence where seizure violated freedom of speech or expression.  63 H. 596, 634 P.2d 80.

  City policy requiring inspection prior to entering concert, of all containers or clothing capable of concealing bottles or cans held unreasonable.  64 H. 17, 635 P.2d 946.

  Illegal arrest or seizure of evidence, without more, does not bar prosecution.  Exclusion of tainted evidence is appropriate remedy; purchase of allegedly obscene material from "willing sellers" by private citizen under police direction prior to arrest was actually "preconceived seizure" designed to evade warrant procedures; warrantless arrest for promoting pornography and seizure of material cannot be premised on ad hoc determination by police officer that material was obscene.  64 H. 109, 637 P.2d 1095.

  Evidence inadequate to support probable cause for issuance of warrant.  64 H. 399, 641 P.2d 1341.

  No reasonable expectation of privacy in conversation recorded by participant.  64 H. 659, 649 P.2d 346; 67 H. 197, 682 P.2d 79; 67 H. 307, 686 P.2d 816.

  No reasonable expectation of privacy shown.  65 H. 22, 649 P.2d 363; 65 H. 159, 649 P.2d 737.

  In order to conduct the more intrusive body searches in nonemergency, noncontact visit situations, prison officials must have reasonable basis to conclude that contraband is being concealed by inmates on their person.  66 H. 21, 656 P.2d 1330.

  Based on record, defendant did not abandon bag and therefore warrantless search was unconstitutional.  66 H. 543, 669 P.2d 152.

  Any co-inhabitant of commonly held property has right to consent to search of property; no expectation of privacy in property abandoned; abandonment primarily a question of intent.  67 H. 644, 701 P.2d 171.

  Reasonable expectation of privacy in trash bags.  67 H. 658, 701 P.2d 1274.

  Warrantless seizure of album for ten days to install beeper was unreasonable.  68 H. 213, 708 P.2d 820.

  Use of binoculars to observe activities in open view in automobile not unreasonable; warrantless search of handbag in automobile was unreasonable.  68 H. 221, 708 P.2d 825.

  Under the facts, warrantless search held not justified by "exigent circumstances" and not "incident to arrest".  68 H. 253, 710 P.2d 1197.

  Police must have reasonable basis to believe crime committed to order driver out of car after traffic stop.  68 H. 286, 711 P.2d 1291.

  Reasonable expectation of privacy in closed public toilet stall; no probable cause to search stall.  68 H. 404, 716 P.2d 493.

  Warrantless search of defendant beyond protective search for weapons was unreasonable, where there was no evidence to indicate defendant had contraband or instrumentalities of the crime.  68 H. 509, 720 P.2d 1012.

  Warrantless seizure for thirty minutes was not unreasonable or avoidable where police were informed of criminal activity ten minutes prior to the seizure.  69 H. 132, 736 P.2d 438.

  Airport searches, discussed.  69 H. 589, 752 P.2d 102.

  Search warrant was valid although informant had no history of reliability because other corroborated information indicated informant was reliable.  70 H. 271, 768 P.2d 1290.

  Warrant was considered a general warrant.  70 H. 546, 779 P.2d 1.

  Not violated by police drug testing program.  71 H. 568, 799 P.2d 953.

  Warrant to search multiple occupancy dwelling was reasonable.  71 H. 638, 802 P.2d 478.

  Affidavit which contained misstated and omitted information was insufficient to show probable cause to justify a search warrant.  72 H. 141, 808 P.2d 848.

  Warrantless search of contents of wallet after defendant surrendered it for inventory was unreasonable.  72 H. 290, 814 P.2d 914.

  Constitutional right was not voluntarily waived by defendant's consent to search car where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right.  72 H. 505, 824 P.2d 833.

  Although no force was used, officers' show of authority and questioning constituted seizure under Hawaii Constitution.  74 H. 161, 840 P.2d 358.

  District court's findings of fact, conclusions of law, and suppression orders affirmed, where, inter alia, defendants had actual, subjective expectations of privacy that society would recognize as objectively reasonable that they would not be objects of covert video surveillance in employee break room, and recorded observations of activities in the break room were not obtained by third party consent.  75 H. 124, 856 P.2d 1265.

  Seizure occurs when police approach a person for the express or implied purpose of investigating that person for possible criminal violations and begins to ask for information.  75 H. 558, 867 P.2d 903.

  Children in school have legitimate expectations of privacy that are protected by this section and the Fourth Amendment to the U.S. Constitution.  77 H. 435, 887 P.2d 645.

  High school principal's search of student's purse was lawfully conducted.  77 H. 435, 887 P.2d 645.

  Investigative stop can be justified based on objectively reasonable suspicion of any offense, provided that the offense for which reasonable suspicion exists is related to offense articulated by officer involved.  78 H. 86, 890 P.2d 673.

  Where handgun on floor of defendant's truck under corner of driver's seat was observed in plain view, presence of exigent circumstances was not required to justify a warrantless seizure.  78 H. 308, 893 P.2d 159.

  Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai‘i constitution.  78 H. 433, 896 P.2d 889.

  In order for a consent to search to be valid under this section, the individual consenting must actually possess the authority to do so; detective's search of defendants' house violated this section.  78 H. 433, 896 P.2d 889.

  Clear plastic packets not "closed" containers as contents were within plain view of officer conducting search under warrant; defendant thus could not claim any reasonable expectation of privacy in the packets' contents.  80 H. 382, 910 P.2d 695.

  Obtaining warrant as precondition to testing suspected cocaine in clear plastic bags unnecessary where defendant could not have reasonable expectation of privacy in clear plastic bags.  80 H. 382, 910 P.2d 695.

  Valid search incident to lawful arrest where there was probable cause to make an arrest prior to and independent of search of defendant's pants, search was limited to finding narcotics bindles, and arrest was made immediately after search.  80 H. 419, 910 P.2d 732.

  Determination of probable cause for issuance of search warrant warrants de novo review on appeal.  81 H. 113, 913 P.2d 39.

  Upon de novo review, based on facts set forth in officer's affidavit, probable cause existed to issue search warrant.  81 H. 113, 913 P.2d 39.

  Defendant lacked standing to challenge seizure of search warrant evidence where evidence seizure did not violate defendant's personal rights; defendant was not owner of any of items seized and did not allege any reasonable expectation of privacy in items.  82 H. 474, 923 P.2d 891.

  No "seizure" where private individual, acting on own initiative, secured videotape and voluntarily transferred possession to police.  82 H. 474, 923 P.2d 891.

  Drug evidence admissible and wrongly suppressed where police intrusion into hotel room pursuant to valid arrest warrant was justified and evidence seizure was permissible under plain view doctrine.  83 H. 13, 924 P.2d 181.

  "Totality of the circumstances test" correct test to determine whether private individual's search and seizure of evidentiary items was as a government agent, and subjective motivation of individual irrelevant to this determination.  83 H. 124, 925 P.2d 294.

  Circuit court erred in granting defendants' motion to suppress evidence where none of the three rationales for exclusionary rule--judicial integrity, individual privacy, and deterrence--supported suppression of evidence in case.  83 H. 187, 925 P.2d 357.

  Provisions of chapter 803, part IV and this section not relevant to question of legality of electronic eavesdropping activities conducted in California.  83 H. 187, 925 P.2d 357.

  Warrantless seizure justified where witness' identification of defendant as person who terrorized witness with gun gave officers probable cause to believe defendant committed a crime and officer's observation of defendant sleeping with gun in immediate reach presented sufficient exigent circumstances for officer to board boat and seize gun.  83 H. 229, 925 P.2d 797.

  Based on totality of circumstances, officer placed defendant in inherently coercive position by asking "pretexual" questions specifically designed to elicit responses that would either vindicate or implicate defendant; consent to "pat down" was thus not "voluntary and uncoerced".  83 H. 250, 925 P.2d 818.

  Officer lacked specific and articulable facts sufficient to warrant a person of reasonable caution in believing that defendant was engaged in criminal activity; officer was thus unjustified in initiating investigative "encounter" at airport with defendant.  83 H. 250, 925 P.2d 818.

  Where officer's questions were designed to investigate defendant for drug possession and defendant was expressly made aware of that from the outset, defendant had been effectively seized by the time officer asked "to take a look" at defendant's airline ticket and driver's license.  83 H. 250, 925 P.2d 818.

  Where nothing in objective facts available to police at time they obtained search warrant for house suggested defendant's bedroom was separate residential unit completely secured against access by other dwelling occupants, search warrant not overbroad and search of bedroom reasonable.  84 H. 462, 935 P.2d 1007.

  Where no exigent circumstances existed, forced entry by police two seconds after knock and announcement was insufficient to give occupants reasonable opportunity to respond.  85 H. 282, 943 P.2d 908.

  Defendant not victim of unlawful seizure where, under totality of circumstances, reasonable person would have felt free to terminate encounter by refusing to accompany police and return into home.  86 H. 195, 948 P.2d 1036.

  Where defendant voluntarily offered to accompany police to station and walked to and entered van voluntarily, even if there was a "seizure", seizure was with defendant's consent.  86 H. 195, 948 P.2d 1036.

  Police may not prolong the detention of individuals subjected to brief, temporary investigative stops, once such stops have failed to substantiate the reasonable suspicion that initially justified them, solely for the purpose of performing a check for outstanding warrants.  91 H. 80, 979 P.2d 1106.

  Although lawfully "seized" within the meaning of this section, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer.  94 H. 207, 10 P.3d 728.

  When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot.  94 H. 207, 10 P.3d 728.

  When an airline passenger consents to a search of his or her effects at an airport security checkpoint, the scope of the search reasonably extends to those receptacles, the contents of which cannot be identified, contained in luggage.  97 H. 71, 34 P.3d 1.

  A mandatory blood test, pursuant to §286-163, absent an arrest, violates neither the Fourth Amendment nor this section, so long as the police have probable cause to believe that the driver has committed one of the enumerated offenses and that the driver's blood contains evidence of intoxication or drug influence, exigent circumstances excuse a warrant, and the test is performed in a reasonable manner.  98 H. 221, 47 P.3d 336.

  An officer is not prohibited from requesting a warrant check incident to the issuance of a citation for a traffic violation when the check does not prolong the length of time needed to issue a citation.  98 H. 337, 48 P.3d 584.

  Where detective's affidavit in support of search warrant lacked probable cause and warrant was thus unlawfully obtained, firearms that detective found in tool shed and defendant's subsequent inculpatory statement, given in response to detective's questions regarding the firearms, were inadmissible at trial because they constituted evidence derived from the exploitation of an unlawful search warrant, and therefore, were tainted by that prior illegality.  98 H. 387, 49 P.3d 353.

  Assuming arguendo that, because drug detection dog jumped into the truck's passenger compartment, this canine screening constituted a "search" within the meaning of either the Fourth Amendment or this article, defendant did not have a reasonable expectation of privacy in the truck (or specifically in the airspace within the cab of the truck); thus, neither the dog's nor police handler's conduct violated defendant's rights.  98 H. 426, 49 P.3d 1227.

  In detaining defendant for the purpose of determining if defendant was impaired and if defendant would consent to a search of defendant's vehicle, officer did not exceed the scope of a temporary investigative stop premised upon circumstances that gave rise to a reasonable suspicion that defendant was driving while impaired or that defendant's vehicle might contain illicit substances.  99 H. 370, 56 P.3d 138.

  Red and glassy eyes, a criminal record, and imperfect driving, standing alone, were insufficient to establish probable cause to arrest a person for driving under the influence of drugs; as officer did not have probable cause to arrest defendant and did not subject defendant to sustained and coercive questioning, Miranda warnings were not warranted when defendant was questioned about defendant's alcohol consumption.  99 H. 370, 56 P.3d 138.

  Based on the totality of the circumstances, pool hall owner's actions in searching and detaining defendant were as a private citizen, not as a government agent; thus, owner's search and/or seizure of defendant was not constrained by this section nor the Fourth Amendment.  100 H. 195, 58 P.3d 1242.

  Section 803-37 does not apply to the interior office door of a store; however, as an objectively reasonable expectation of privacy exists at the interior office door of a store, police are required to provide reasonable notification of their presence and authority before making a forced entry; police satisfied this requirement by knocking three times, announcing "police department, search warrant", and waiting fifteen seconds before forcibly entering the locked interior office door of the store.  100 H. 210, 58 P.3d 1257.

  Search warrant was not supported by probable cause where credibility and reliability of anonymous tip concerning marijuana growing was not established; thus, trial court erred in denying defendant's motion to suppress items seized in the execution of the warrant.  102 H. 13, 72 P.3d 485.

  Use of thermal imager device to detect heat emanating from defendant's apartment constituted an unreasonable warrantless search; thus, information gained should have been excluded in the establishment of probable cause.  102 H. 13, 72 P.3d 485.

  Officer's additional observations, considered in concert with the reasonable inferences arising from defendant's screeching of tires, warranted an objectively reasonable suspicion that defendant had, at a minimum, committed the offense of reckless driving of a vehicle, in violation of §291-2; thus, officer's investigative stop was within the parameters of permissible police conduct.  102 H. 228, 74 P.3d 980.

  Police may act on an anonymous tip of reckless driving, but only under very narrow circumstances; based on the totality of the circumstances, including the reliability of the tip and the imminence of the harm, an anonymous tip was sufficiently reliable to justify an investigatory stop.  103 H. 451, 83 P.3d 714.

  Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine.  104 H. 109, 85 P.3d 634.

  Warrant to search premises does not authorize search of identified possessions of visitors present during execution of warrant; defendant had reasonable expectation of privacy in plastic beach bag on floor near defendant.  5 H. App. 29, 677 P.2d 471.

  Investigatory stop justified by circumstances.  5 H. App. 127, 681 P.2d 573.

  Reasonable for police officers to order defendant to exit automobile based upon totality of circumstances.  7 H. App. 28, 742 P.2d 388.

  Suspicionless drug testing of firefighters by urinalysis in conjunction with annual physical examination is not an unreasonable search.  8 H. App. 571, 816 P.2d 306.

  Reasonable for police officer to assume that personal property of non-resident of premises being searched under search warrant was property of premises where there was no notice of ownership.  8 H. App. 610, 822 P.2d 23.

  Warrantless seizure of defendant at sobriety roadblock was unreasonable where State failed to prove that officer in charge had authority to move roadblock's location due to traffic congestion.  9 H. App. 98, 825 P.2d 1068.

  Section 803-37 violates Hawai‘i constitution to the extent that it permits the police to break into the place to be searched if "bars" to their entrance are not immediately opened.  77 H. 461 (App.), 887 P.2d 671.

  In situations where defendant was the focus of a narcotics investigation, was seized illegally, had defendant's bag detained for a canine narcotics screening, and had defendant's subsequent movements secured by the police pending completion of the screening, a reasonable person would believe he or she was not free to leave.  78 H. 475 (App.), 896 P.2d 931.

  Insofar as indictment related to resisting arrest charge, indictment could not be treated as a "product or fruit" of any illegal seizure or arrest of defendant.  78 H. 475 (App.), 896 P.2d 931.

  Seizure violated reasonable seizure requirement in this section because defendant was initially seized without probable cause, without reasonable suspicion, and without defendant's consent.  78 H. 475 (App.), 896 P.2d 931.

  Officer's order for defendant to exit vehicle was unlawful; thus, subsequent plain view of, search for, and seizure of incriminating evidence was tainted and should have been suppressed.  80 H. 75 (App.), 905 P.2d 50.

  Probable cause existed for issuance of warrant based on officer's affidavit that relied on police investigation as well as on informant's information.  81 H. 29 (App.), 911 P.2d 1101.

  Where warrant only authorized search of specific room of business and another subsequently discovered room of business separated by a hallway and other numbered and unnumbered rooms was also searched, other room was not within scope of warrant and constituted illegal search.  82 H. 162 (App.), 920 P.2d 376.

  Evidence found in defendant's living room illegally seized where no exigent circumstances or search warrant to enter living room and person consenting to police entering living room did not have "actual authority" to consent.  82 H. 394 (App.), 922 P.2d 1007.

  Hawaii constitution does not permit validation of searches pursuant to search warrants that are facially expired when the searches are made.  83 H. 87 (App.), 924 P.2d 581.

  Where defendant was seated in driver's seat of parked car, key was in ignition and engine was not running, defendant was "seized" when officer asked defendant for driver's license, vehicle registration card, and vehicle reconstruction permit.  87 H. 487 (App.), 960 P.2d 157.

  Where Hawaii county did not require posting of reconstructed vehicle permit decal on vehicle and no evidence that defendant actually operated vehicle, officer's suspicion that defendant operated a reconstructed vehicle without a valid permit was not reasonable; thus, evidence of DUI and no reconstruction permit was illegally obtained through a warrantless seizure.  87 H. 487 (App.), 960 P.2d 157.

  Where State established by clear and convincing evidence that contents of defendant's pockets would have been revealed in an inventory search of defendant upon arrival and booking at police station, drug pipe and packet properly admitted under the inevitable discovery exception to the exclusionary rule.  91 H. 111 (App.), 979 P.2d 1137.

  Right not violated where defendant did not have a reasonable expectation of privacy on busy public street, defendant took no precautions to insure privacy by screening defendant's presence or defendant's drug dealing activity from public view, and no objectively reasonable expectation of privacy for persons, objects, or activities which were visible to the public and captured by non-intrusive video camera.  92 H. 454 (App.), 992 P.2d 723.

  Seizure of motorist justified where report of the hazardous driving matched both the area the motorist was driving in and the make, model, color, and license number of the vehicle being allegedly hazardously driven.  93 H. 337 (App.), 3 P.3d 503.

  Although initial seizure was justified, once officers determined that no weapon was involved and no one wanted to make a complaint, and thus dispelled the reasonable suspicion that justified the initial seizure, defendant should have been released; by further detaining defendant and demanding identification, officer subjected defendant to an illegal seizure.  93 H. 502 (App.), 6 P.3d 374.

  Where officer made plain to defendant that defendant was the focus of a criminal investigation, demanded to see defendant's hands, and a reasonable person would not have felt free to leave, defendant was seized for purposes of this section; seizure continued throughout ensuing physical seizure, takedown and handcuffing, and continued after the removal of the handcuffs.  93 H. 502 (App.), 6 P.3d 374.

  Conduct of officer who had been directing traffic, in walking behind motorist's vehicle, from the passenger's side to the driver's side, after motorist had been stopped for three to five seconds and had failed to follow officer's hand instructions, was not an investigative stop, as reasonable person would not have believed person was not free to leave. 95 H. 270 (App.), 21 P.3d 475.

  Defendant had a constitutionally protected expectation of privacy not only in the general premises of the house, but also in the specific area that was defendant's bedroom; defendant's lack of property interest in defendant's parents' house was not a bar to a claim that defendant had a protected privacy interest in that house.  96 H. 472 (App.), 32 P.3d 116.

  Exigent circumstances did not exist to justify warrantless police entry into and search of house, where, by securing the house believed to hold their quarry, the police had eliminated the perceived threat posed by a free-roaming, allegedly armed suspect, and by closing off the street, the police were in control of the situation, thus having sufficient time to consider their options, plan and obtain a search warrant.  96 H. 472 (App.), 32 P.3d 116.

  Warrantless search of defendant's bedroom in defendant's parents' house unreasonable where mother did not have actual authority to consent to search of son's bedroom; son had, by implicit agreement and in practice, exclusive possession of bedroom, and there was no indication that son gave mother access to room or permission to allow others access.  96 H. 472 (App.), 32 P.3d 116.

  Where defendant exhibited an actual, subjective expectation of privacy in defendant's bedroom by keeping door locked at all times, and no other person had the key or access to the room, and as an adult child living with parents is not uncommon in this State, defendant's expectation was one that society was prepared to recognize as objectively "reasonable"; thus, defendant's privacy interests in common areas of parents' house and in defendant's bedroom were constitutionally protected.  96 H. 472 (App.), 32 P.3d 116.

  Where neither consent nor exigent circumstances justified warrantless police entry into and search of defendant's bedroom, based on the "adequate and independent state grounds" of this section, police search was unlawful and sawed-off shotgun seized as a result should have been suppressed.  96 H. 472 (App.), 32 P.3d 116.

  The federal and state regulatory schemes, which establish security and screening procedures at airports governed by both the Federal Aviation Administration and the state department of transportation, made private security employee's search of passenger's toolbox a governmental search for purposes of the Fourth Amendment and this section.  97 H. 77 (App.), 34 P.3d 7.

  Warrantless search of passenger's toolbox at airport by private security company employee was reasonable under the Fourth Amendment and this section.  97 H. 77 (App.), 34 P.3d 7.

  Where totality of circumstances clearly showed that store asset protection agent conducted a purely private search of defendant with no governmental involvement, trial court did not err in denying defendant's motion to suppress evidence.  97 H. 247 (App.), 35 P.3d 764.

  Right not violated where police officer's search of defendant's fanny pack found by hotel guest and already inventoried by hotel security fell under the lost property inventory exception to the warrant requirement.  101 H. 112 (App.), 63 P.3d 420.

  Warrantless seizure of plaintiff's vehicle not unconstitutional where seizure was from a public place and officers had probable cause to believe it was forfeitable contraband.  101 H. 422 (App.), 70 P.3d 648.

  Applying the totality of the circumstances test, trial court correctly determined that adult video store clerk was not acting as a "government agent"; clerk was not actively recruited, directed, or paid by the police, and clerk's actions were for a private purpose--to make sure defendant was complying with video store's no-smoking policy and not doing anything that would harm the store.  103 H. 11 (App.), 78 P.3d 1159.

  Warrantless seizure of defendant's glass pipe and its contents justified where police had probable cause to arrest defendant after viewing defendant smoking glass pipe in video booth, and exigent circumstances existed as defendant was lawfully observed ingesting an illegal drug and any delay would allow more, if not all, of the drugs to be consumed, and as defendant rented video booth for only half an hour, defendant would likely have finished defendant's "business" long before police could have obtained a warrant.  103 H. 11 (App.), 78 P.3d 1159.

  Where defendant took no steps to cover up "glory hole" in adult video preview booth, defendant could not have reasonably expected that defendant's conduct would not be viewed through the glory hole; thus, defendant could not have had a subjective expectation of privacy in the video preview booth that society would recognize as objectively reasonable.  103 H. 11 (App.), 78 P.3d 1159.

  Defendant was not subject to a de facto arrest not supported by probable cause where officers' use or display of force was reasonably necessary to protect their personal safety, was in response to defendant's erratic and hostile behavior, and defendant's conduct made it reasonable for the officers to insist that defendant submit to a pat-down search for weapons.  107 H. 144 (App.), 111 P.3d 39.

  When police officers encounter someone while lawfully at a residence to execute an arrest warrant, the officers may detain that person and perform a pat-down search for weapons if the officers have a reasonable and articulable basis to suspect that the person may possess a weapon and pose a danger; the officers may compel such person to submit to a pat-down search for weapons even if the officers have no reasonable suspicion that the person is involved in criminal activity.  107 H. 144 (App.), 111 P.3d 39.

  Authorization in search warrant to search any personal, rental, or borrowed vehicle that defendant was operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized where authorization was based on probable cause that defendant would be in possession of ice, and would be transporting it in any number of different vehicles in which defendant was either the operator or an occupant.  108 H. 361 (App.), 120 P.3d 260.

  Cited:  56 H. 366, 537 P.2d 8.

  Mentioned:  53 H. 327, 493 P.2d 306.


Hawaii Legal Reporter Citations


  Electronic surveillance.  81-2 HLR 810715.

  Photographs and videotapes.  81-2 HLR 810715.


















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