State v. Delmondo

512 P.2d 551, 54 Haw. 552, 1973 Haw. LEXIS 222

• Court: Hawaii Supreme Court
• Decided: July 13, 1973
• Docket: 5299
• Status: Published

Opinions

OPINION OF THE COURT BY

ABE, J.

On July 1, 1971, officer Leu of the Honolulu Police Department was on his assigned patrol at Waikiki. During the course of his duties he used the urinal at the International Market Place in Waikiki and while using the urinal he heard two voices coming from an adjoining toilet stall. The conversation concerned money and prices. The officer approached the toilet stall and pushed on the door. The door was not latched, and it opened, whereupon the officer observed the defendant sitting on the toilet with his pants on and leaning over several orange pills or capsules on the floor. A second party in the stall was bending close to the floor with his fist full of U.S. currencies. The defendant, in reacting to the opening of the door, picked up some of the pills.

Then, while frisking the defendant for weapons, the officer discovered that the defendant’s left fist was tightly closed. He pried it open and recovered a red capsule. The defendant was charged with the unlawful possession of a harmful drug.

The defendant moved in the trial court to suppress the evidence on the ground that officer Leu’s conduct constituted an unreasonable search and seizure. The motion was denied. Following a trial, the defendant was found guilty and he has appealed from the judgment and sentence of the court.

The sole issue before us is whether the trial court erred in denying the motion to suppress the evidence. Thus, the basic issue to be decided is whether the arresting officer possessed the requisite probable cause to conduct the warrantless search leading to the defendant’s arrest.

Even assuming that a person in a public toilet stall, using it as did defendant here, is entitled to a reasonable . expectation of privacy while therein, a warrantless search of that area, and a frisk of defendant’s person, are not unconstitutional acts where there is probable cause to believe that a crime is being, was, or is about to be committed.

Much is made by the defendant of the point that there ivas no probable cause for the search and seizure that occurred here, and to buttress this conclusion the relevant portions of the transcript are quoted to the effect that officer Leu investigated only because he was “curious.”¹ Thus, the defendant argues that the officer disavowed having “probable cause” to act as he did.

However, the officer’s statements on this issue are not- totally dispositive of the matter. “Probable cause” is determined not by a subjective standard (i.enot by the officer’s personal opinions) but by a “reasonable man” (or objective) standard. The use of an objective standard has been black letter law since at least Carroll v. United States, 267 U.S. 132 (1925), and has been adopted by this court. State v. Texeira, 50 Haw. 138, 433 P.2d 593 (1967) . The definition given in the Carroll case, supra, and adopted by this court in a decision written by Justice Levinson in Texeira, supra (at 142), is that officers have “probable cause” when:

[T]he facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that [a crime was being committed}. Carroll v. United States, 267 U.S. 132, 162 (1925).

As similarly stated by Henry v. United States, 361 U.S. 98, 102 (1959) : “probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.” Then as stated by the Henry case, the inquiry for the appellate court must be whether “prudent men in the shoes” of the police officer would have perceived enough to permit them to believe that the suspect was violating the law.

Also, what is known or perceived by an officer to give him a probable cause to make an arrest or a search need not amount to evidence sufficient to convict. This court in the Texeira case, supra, at pages 142-43 said:

It is clear “that the term ‘probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation,” Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813), accord, Jones v. United States, 362 U.S. 257, 270 (1960). The Supreme Court succinctly summarized the difficulty we face in determining when an officer has probable cause to make an arrest.

In that case this court accordingly adopted the rule of Brinegar v. United States, 338 U.S. 160, 176 (1949), where the United States Supreme Court stated that the long-prevailing standards on probable cause:

. . . seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

It is to be noted that this court in Texeira, supra, page 144, also recognized the particular need for fast action when there is probable cause to suspect possession of narcotics.

Based on the standards and considerations established by this court in the Texeira case, officer Leu, as a reasonable man, had probable cause to make a warrantless search, as he heard loud talking about money and prices emanating from a toilet stall containing one bowl occupied by two persons. As it was stated in United States v. Smith, 293 A.2d 856, 858 (D.C. Ct. App. 1972) “. . . we cannot say it was unreasonable for the officers to conclude that illegal conduct of some sort was in progress.”

In the Smith case the officer’s attention was caught by his noticing “underneath the door of one of the pay toilet stalls two pairs of legs dressed in male attire.” 293 . That sight and that alone, outside of the background of other criminal activity in the area, was all that the officer perceived before the search was begun.

The cases cited by the defendant are distinguishable from this case and are inapposite. In Bielicki v. Superior Court of L.A. County, 57 Cal.2d 602, 21 Cal. Rptr. 552, 371 P.2d 288 (1962), the police had regularly observed all the occupants of toilet stalls through a pipe from the roof, looking for illegal activities and thus, the search of the stalls began before perceiving any criminal activity — in other words the search was started without probable cause.

In Brown v. State, 3 Md. App. 90, 238 A.2d 147 (1968), the arresting officer stuck his head over the toilet stall door, and the reason given for such intrusion was that the occupant of the stall was a known narcotics addict. This knowledge was insufficient to provide the officer with probable cause to believe that a crime was being committed.

In Uva v. State, 124 Ga. App. 486, 184 S.E.2d 200 (1971), the officer testified that he had heard a young man tell the defendant “No, man, I don’t want to buy anything,” at a public dancehall, after which the officer searched the defendant and found drugs upon him. The court held that no probable cause for the defendant’s arrest existed when the search was made and that the search was unlawful.

As stated above those cases are distinguishable from this case. The record of this casé establishes that the officer had probable cause to fling open the door and “it has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236 (1968).

Thus, it is clear to us that having seen the red capsules on the floor, the officer had probable cause to effectuate an arrest. Officer Leu took custody of the defendant and his cohort by obliging them to leave the toilet stall, stand against a wall, and generally to remain subject to his directions. This type of action, despite the absence of the magic words (“I place you under arrest” etc.), is an arrest, where the defendant clearly understands that he is not free to go. People ex. rel. Winkle v. Bannan, 372 Mich. 292, 125 N.W.2d 875, 879-80 (1964), appeal dismissed and cert. denied 379 U.S. 645 (1965). The search that revealed that the suspect’s left hand held still another capule was, thus, a search incident to valid arrest,² and is therefore also valid.

David S. Hobler, Deputy Public Defender {Donald K. Tsukiyama, Public Defender, with him on the briefs) for defendant-appellant. Reina A. Grant, Deputy Prosecuting Attorney {Barry Chung, Prosecuting Attorney, with her on the brief), for plaintiff-appellee.

Affirmed.

1 "Q Now, did you feel — I’m trying to get at why you opened that door. Did you feel this was in line with your regular'police work or what?

“A I — it’s pretty, hard to say, sir. The only reason I opened the door because, like I said, there was a conversation concerning money and so forth, and that it was pretty odd having two people in that area, so more or less to satisfy my curiosity, I opened the door and — .”

2 Even assuming here that there was no arrest because of a failure to use specific language and that therefore the search was prior to some later act of arresting, it is not illegal or objectionable. As long as there is an independently established probable cause for an arrest, a search immediately preceding arrest is no greater invasion of a person’s security and privacy than a search following arrest. In fact, a search prior to arrest (for probable cause established by other information) may be preferable to a search after arrest, because. if the prior search reveals a mistake as to probable cause, the suspect is spared actual arrest. Cf. People v. Simon, 45 Cal.2d 645, 290 P.2d 531, 533 (1955).