State v. Goudy

479 P.2d 800, 52 Haw. 497, 1971 Haw. LEXIS 114
CourtHawaii Supreme Court
DecidedJanuary 13, 1971
Docket4933
StatusPublished
Cited by56 cases

This text of 479 P.2d 800 (State v. Goudy) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Goudy, 479 P.2d 800, 52 Haw. 497, 1971 Haw. LEXIS 114 (haw 1971).

Opinions

OPINION OP THE COURT BY

MARUMOTO, J.

This is an appeal by defendant William Rollin Gondy II from a circuit court judgment convicting Mm of possession of firearms by a person convicted of a crime of violence, in violation of HRS § 134-7(b). Defendant had previously been convicted of burglary, which, under the definition in HRS § 134-1, is a crime of violence.

The sole issue on appeal is whether the circuit court properly denied the defense motion for suppression of [498]*498evidence. The items of evidence sought to he suppressed were one .22 caliber Marlin rifle, one 9 mm. Luger pistol, and one .32 caliber Walther pistol. The police obtained these items under the circumstances described below.

At 10 o’clock in the morning of June 23,1969, Sergeant Carl Ledward of the Honolulu police department received an anonymous telephone call at the Kaneohe police station informing him that within an hour there would be a transaction in guns, diamond i*ing, and diamond watch, which the informant thought was illegal; that the transaction would take place at 127 Oneawa Street, Kailua; that the buyer would be driving a black Barracuda automobile; and that the passenger in the automobile would be the contact man to obtain the articles.

Upon receiving the telephone call, Ledward went to Kailua to check the address, but there was no house on Oneawa Street with the given number. However, together with Detective Donald Kamakea, whom he met at the Kai-lua police station, he kept a watch for an automobile fitting the informant’s description at Andy’s Drive-Inn on Oneawa Street.

At 11:10 o’clock, Ledward and Kamakea saw a black Barracuda, with driver and a passenger, proceed on One-awa Street in the Kaneohe direction. The driver was later identified as James Kaaku. Defendant was the passenger.

Ledward and Kamakea followed the Barracuda in Ka-makea’s automobile, with Kamakea driving. Kamakea’s automobile was used because it had no police insignia.

The Barracuda stopped in front of a house at 728 Oneawa Street. Kamakea drove past the Barracuda for about a block to the intersection of Oneawa Street and Oneawa Place, where he turned his automobile around and backed into Oneawa Place.

Ledward and Kamakea set up a surveillance of the Barracuda behind a growth of pine trees at the intersection. [499]*499Ledward watched with his naked eyes. Kamakea used binoculars in making his observation.

On the surveillance, both Ledward and Kamakea saw defendant make the following movements: He got off the Barracuda, entered a nearby lane, and returned within a few minutes with a beige-colored case which appeared to contain a rifle. He placed the case in the back of the automobile, then went into the house at 728 Oneawa Street, returned with a brown paper sack, and got back into the automobile.

When defendant got back into the Barracuda, Kaaku turned the automobile around, and drove it back in the direction of Kailua town at a speed of about 20 miles, well within the legal speed limit.

Ledward and Kamakea again followed the Barracuda. Just before reaching the intersection of Oneawa Street with Kailua Koad, Kamakea tooted his horn, and Ledward motioned to Kaaku to pull over. Instead of pulling over, Kaaku made an abrupt stop. The stop took place in front of the City Bank Building at 43 Oneawa Street. Ledward and Kamakea decided to stop the Barracuda at that location lest there might be a getaway if it was permitted to go beyond the intersection.

Up to this point, there was nothing furtive in the actions of Kaaku and defendant, and nothing to arouse any suspicion of criminal activity, except for substantial dovetailing of police observations with the information given in the anonymous telephone call. Neither Ledward nor Kamakea knew defendant. Ledward did not know Kaaku. Kamakea knew Kaaku as a musician, had heard that he was “a member of the criminal world,” but was not sure that he was.

When the Bari*acuda stopped, Ledward and Kamakea approached it from different sides with drawn pistols. Ledward approached Kaaku from the left side of that auto[500]*500mobile, and told Mm to get out. Kaaku did so with his hands np. Kamakea approached defendant from the right side, and opened the door to have him come out.

While making the approaches, both Ledward and Ka-makea saw the butt end of a rifle sticking out from a case on the back seat of the Barracuda. In addition, when he opened the door to have defendant come out, Kamakea noticed the butt end of a pistol exposed from a package on the floor.

Upon seeing the rifle and the pistol in the Barracuda, Kamakea placed Kaaku and defendant under arrest for being offensively armed, and took them to the Kai-lua police station for booking.1 Defendant was formally charged on the day after the arrest with violation of HRS § 134-7 (b), instead of for being offensively armed, which is a violation of HRS § 727-25.2

The rifle Ledward and Kamakea saw on the back seat of the Barracuda was the .22 caliber Marlin rifle. The pistol Kamakea noticed on the floor was the 9 mm. Luger pistol. After the arrest, Kamakea found the .32 caliber Walther pistol between the bucket seats of the automobile. That pistol was fully loaded with one round in the chamber, and cocked.

In deciding the issue raised on this appeal, we must [501]*501first inquire whether the stopping of the Barracuda by Ledward and Kamakea was a constitutionally permissible action.

On this point, Terry v. Ohio, 392 U.S. 1 (1968), is apposite. That was a stop and frisk case. The case at hand involved stop only, and not a frisk. But the discussion there of considerations involved in constitutionally permissible street stops is pertinent.

Terry states that a police officer may “in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest”; that this is warranted by the general governmental interest in effective crime prevention and detection ; and that, given a state of facts, which separately may appear innocent but which taken together would warrant investigation, it would be poor police work to fail to make further investigation. However, it cautions that such an intrusion upon personal liberty must be reasonable and be based on something more substantial than inarticulate hunches, and that reasonableness is to be judged by an objective standard, namely, whether the facts known by the officer would warrant a man of reasonable caution to believe that the action taken was appropriate.

Here, circumstances were appropriate for Ledward and Kamakea to approach Kaaku and defendant to question them about possible criminal conduct.

The anonymous telephone call to Ledward did not justify arrest or search.

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Cite This Page — Counsel Stack

Bluebook (online)
479 P.2d 800, 52 Haw. 497, 1971 Haw. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-goudy-haw-1971.