State v. Ikimaka. ICA mem. op., filed 11/27/2019.

465 P.3d 654

• Court: Hawaii Supreme Court
• Decided: June 9, 2020
• Docket: SCWC-16-0000003
• Status: Published

Opinion

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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 09-JUN-2020 11:24 AM

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---oOo--- _____________________________________________________________

STATE OF HAWAI‘I, Respondent/Plaintiff-Appellee/Cross-Appellant,

vs.

LARRY IKIMAKA, Petitioner/Defendant-Appellant/Cross-Appellee, LIANE HENDERSON and CHERI NUMAZAWA, Defendant-Appellee/Cross-Appellee. ________________________________________________________________

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 14-1-0306)

JUNE 9, 2020

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY MCKENNA, J.

I. Introduction

This appeal arises from the conviction of Larry Ikimaka

(“Ikimaka”) for one count of promoting a dangerous drug in the

second degree in violation of Hawai‘i Revised Statutes (“HRS”) *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***

§ 712-1242 (Supp. 2007) and one count of unlawful use of drug

paraphernalia in violation of HRS § 329-43.5(a) (Supp. 1988)

after a jury trial in the Circuit Court of the Fifth Circuit

(“circuit court”).1

On October 13, 2014, Kauai Police Department (“KPD”)

received a 911 call from Cheri Numazawa (“Numazawa”) alleging

Ikimaka had hit her, taken her purse, and driven off in a gold

Chevy truck. At around 2:33 a.m., Officer Hansen Hsu (“Officer

Hsu”) responded to the call. Officer Hsu saw a gold Chevy truck

and initiated a traffic stop. Officer Hsu approached the truck,

observed Ikimaka in the driver’s seat and Liane Henderson

(“Henderson”) in the passenger’s seat, and he had Ikimaka and

Henderson exit the truck and sit on the side of the road.

Meanwhile, KPD officers Creighton Tamagawa (“Officer

Tamagawa”) and Mason Telles (“Officer Telles”) attempted to

locate Numazawa to get a statement, and they eventually located

her after about half an hour. Numazawa told the officers that

Ikimaka took her purse, but she did not want to press charges

and did not want Ikimaka arrested. Approximately forty minutes

after the initial stop, Officer Hsu learned through dispatch

that Numazawa had been located and contacted Sergeant Colin

Nesbitt (“Sergeant Nesbitt”). Officer Hsu and Sergeant Nesbitt

1 The Honorable Randal G.B. Valenciano presided.

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determined they had probable cause to seize the truck for theft

on the grounds it contained Numazawa’s purse. They also

discussed Numazawa’s alleged prior drug history.

Officer Hsu informed Ikimaka and Henderson that KPD was

impounding the truck, but that they were not being arrested and

were free to go. Henderson left the scene, but Ikimaka chose to

stay, and Officer Roldan Agbayani (“Officer Agbayani”), then

read Ikimaka his Miranda rights. Ikimaka indicated he did not

want to make a statement.

The truck was towed to the KPD evidence warehouse, and

Sergeant Nesbitt requested a drug-detecting dog to sniff the

outside of the truck. The dog alerted to the presence of drugs.

Based on the dog sniff, Officer Hsu obtained a warrant to search

the truck for Numazawa’s purse and for drugs. Officer Hsu

executed the search warrant and found three purses in the truck,

all of which contained illegal drugs.

Ikimaka, Henderson, and Numazawa were then arrested and

charged for possession of the drugs. No other charges were

filed against Ikimaka. Ikimaka filed a motion to suppress,

arguing the warrantless seizure of the truck was unreasonable

and the dog sniff was a prohibited general exploratory search.

The circuit court denied the motion to suppress.

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After a joint jury trial with Numazawa,2 the jury found

Ikimaka guilty of both charges. Numazawa was acquitted.

Ikimaka was sentenced to four years of probation with an

additional nine months of imprisonment as a condition of

probation.

On appeal to the Intermediate Court of Appeals (“ICA”),

Ikimaka asserted various errors, including that (1) the State

improperly elicited testimony regarding Ikimaka’s exercise of

his right to remain silent; and (2) Officer Hsu was improperly

allowed to speculate on Ikimaka’s mental state.3 In a memorandum

opinion, the ICA affirmed Ikimaka’s convictions. Ikimaka

reasserts the questions presented to the ICA in his application

for certiorari to this court.4

Before addressing two of Ikimaka’s questions on certiorari,

delineated above, we notice plain error affecting substantial

rights with respect to the circuit court’s denial of Ikimaka’s

2 Henderson pleaded no contest to the charges against her. 3 Ikimaka also asserted he was entitled to a new trial because (3) the State failed to lay the foundation necessary to admit the drug test results; (4) the circuit court improperly admitted hearsay into evidence; (5) the circuit court’s jury instruction regarding constructive possession was incomplete; and (6) the circuit court failed to sever Ikimaka’s trial from Numazawa’s trial. Ikimaka also asserted that (7), the circuit court erred in failing to enter a judgment of acquittal due to a lack of sufficient evidence supporting his actual or constructive possession of the drugs. The ICA rejected all of these contentions, and we do not further address them in this opinion. 4 Ikimaka reasserts all of the points of error he raised in the ICA, except (5) above, which the ICA ruled was waived pursuant to HRAP Rule 28(b)(7) (2016) because Ikimaka did not provide argument on that point.

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motion to suppress. As the dog sniff conducted by KPD was

unrelated to the initial stop and seizure of the truck as

evidence of the alleged theft of Numazawa’s purse and KPD did

not have independent reasonable suspicion to believe the truck

driven by Ikimaka contained drugs, the dog sniff violated

Ikimaka’s constitutional right against unreasonable searches

under article I, section 7 of the Hawai‘i Constitution. State v.

Alvarez, 138 Hawai‘i 173, 378 P.3d 889 (2016) (holding canine

screen unreasonable and unlawful expansion of initial traffic

detention under the circumstances); State v. Estabillio, 121

Hawai‘i 261, 273, 218 P.3d 749, 761 (2009) (holding investigation

of defendant’s alleged involvement with drugs not reasonably

related to the initial stop for traffic offenses). Thus,

Ikimaka’s motion to suppress should have been granted as to the

drug evidence.

To provide guidance, we also address Ikimaka’s first two

questions on certiorari. The deputy prosecuting attorney

(“DPA”) should not have elicited testimony regarding Ikimaka’s

exercise of his right to remain silent, and the circuit court

erred by admitting into evidence Officer Hsu’s lay opinion

testimony on Ikimaka’s intent and knowledge. We do not address

Ikimaka’s remaining questions on certiorari.

We therefore remand this matter to the circuit court for

further proceedings consistent with this opinion.

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II. Background

A. Circuit court proceedings

1. Charges

On October 27, 2014, the State filed a complaint against

Ikimaka, Henderson,5 and Numazawa. Ikimaka was charged with one

count of promoting a dangerous drug in the second degree in

violation of HRS § 712-12426 and one count of unlawful use of

drug paraphernalia in violation of HRS § 329-43.5(a).7 Numazawa

5 Henderson entered a plea of no contest. See supra note 2. We do not further discuss the charges against Henderson. 6 HRS § 712-1242 provides:

(1) A person commits the offense of promoting a dangerous drug in the second degree if the person knowingly: (a) Possesses twenty-five or more capsules, tablets, ampules, dosage units, or syrettes, containing one or more dangerous drugs; or (b) Possesses one or more preparations, compounds, mixtures, or substances of an aggregate weight of: (i) One-eighth ounce or more, containing methamphetamine, heroin, morphine, or cocaine or any of their respective salts, isomers, and salts of isomers; or (ii) One-fourth ounce or more, containing any dangerous drug; or (c) Distributes any dangerous drug in any amount, except for methamphetamine. (2) Promoting a dangerous drug in the second degree is a class B felony. 7 HRS § 329-43.5(a) read at the time of the conviction:

It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter. Any person who violates this section is guilty of a class C felony and upon conviction may be imprisoned pursuant to section 706– (continued . . .)

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was charged with one count of promoting a dangerous drug in the

third degree in violation of HRS § 712-1243 (Supp. 2004) and one

count of unlawful use of drug paraphernalia in violation of HRS

§ 329-43.5(a).

2. Ikimaka’s motion to suppress

a. Written submissions

On February 20, 2015, Ikimaka filed a pretrial motion to

quash search warrant and suppress evidence (“motion to

suppress”) for all evidence recovered from the truck. Ikimaka

argued that the “automobile exception” did not justify the

warrantless seizure of the truck because there was no reason to

believe the purse might be removed or destroyed. Ikimaka also

argued the truck’s seizure was unnecessary because he had

volunteered to return Numazawa’s purse, citing the ICA’s holding

in State v. Ramos, 93 Hawai‘i 502, 513, 6 P.3d 374, 385 (App.

2000), that “governmental intrusions into the personal privacy

of citizens of this State be no greater in intensity than

absolutely necessary under the circumstances.”

Ikimaka further maintained that KPD only had probable cause

to search the truck for Numazawa’s purse, not for drugs.

Ikimaka also argued that the dog sniff constituted a “general

(. . . continued) 660 and, if appropriate as provided in section 706–641, fined pursuant to section 706–640.

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exploratory search” prohibited by State v. Groves, 65 Haw. 104,

649 P.2d 366 (1982).

In its February 25, 2015 opposition memorandum, the State

argued KPD had probable cause to believe that Ikimaka had

committed theft and that evidence of the theft was in the truck

based on Numazawa’s 911 call and Ikimaka’s statement to police

that he had Numazawa’s purse in the truck.

The State’s submissions also showed that on October 13,

2014, at around 5:39 a.m., Sergeant Nesbitt requested a “canine

sniff” on the truck. At around 11:35 a.m., a KPD narcotics

detector dog alerted to the presence of narcotics on the

passenger’s side door of the truck. On October 14, 2014,

Officer Hsu’s application for a warrant to search the truck,

which was registered to a Natasha Lazaro (“Lazaro”), for

Numazawa’s purse as well as “Methamphetamine, Heroin, Cocaine,

Marijuana, and all of its various forms,” was approved.

On October 15, 2014, Officer Hsu executed the search

warrant on the truck. Officer Hsu found a maroon bag under the

driver’s seat containing two glass tubes, $1,400 in cash,

plastic bags containing white crystalline substances, a digital

scale, and an Ace Hardware receipt bearing Ikimaka’s name.

Officer Hsu also found a black purse on the floor of the

passenger’s side containing Henderson’s driver’s license, a

plastic bag containing a “green leafy substance resembling

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marijuana,” and a plastic bag containing a white crystalline

substance. He also found a “Dooney and Bourke” purse containing

a glass pipe, a digital scale, plastic bags containing white

crystalline substances, and IDs bearing Numazawa’s name.

The State maintained that KPD was authorized to seize the

truck pursuant to the automobile exception, and that exigent

circumstances existed because “[i]f police had not seized the

vehicle, there was an extremely high risk Ikimaka or Henderson

would have moved, removed or destroyed the vehicle and/or

evidence.” The State also asserted that a dog sniff “of the

airspace around a closed container is not a Fourth Amendment or

Article I, section 7 search,” citing State v. Snitkin, 67 Haw.

168, 171, 681 P.2d 980, 983 (1984), and Groves, 65 Haw. 104, 649

P.2d 366.

b. Hearing on motion to suppress

At the beginning of the April 2, 2015 hearing, the State

took the position that no evidence should be presented on the

dog sniff issue because it was “contained within the search

warrant.” The circuit court agreed that “the review is based on

the four corners of the warrant,” and stated it was not going to

take evidence on the dog sniff. Citing Groves, 65 Haw. 104, 649

P.2d 366 and Snitkin, 67 Haw. 168, 681 P.2d 980, the circuit

court found that the dog sniff of the airspace around the car

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was appropriate, and it denied the motion to suppress regarding

the use of the drug-sniffing dog.

At the hearing, Ikimaka called Officers Hsu, Agbayani, and

Telles as witnesses, who testified in relevant part to the

following additional facts.

On October 13, 2014 at around 2:33 a.m., Officer Hsu

received information from dispatch about a 911 call made by

Numazawa alleging that Ikimaka had struck her, taken her purse,

and left in a gold Chevy truck from Kamalani Bridge. After

stopping Ikimaka, Office Hsu asked Ikimaka and Henderson to exit

the truck. It was “raining off and on.” At the time Officer

Hsu stopped Ikimaka, KPD had not spoken with Numazawa.

After approximately 30 minutes, Officer Tamagawa, who was

familiar with Numazawa, and Officer Telles located Numazawa on

the beach. The officers spoke with Numazawa, who told them

Ikimaka took her purse and that she wanted it back. However,

she did not want to press charges and did not want Ikimaka

arrested.

After Officer Hsu was informed through dispatch that

Numazawa had been located and that Numazawa did not want to

press charges, he contacted Sergeant Nesbitt. Officer Hsu and

Sergeant Nesbitt determined they had probable cause to seize the

truck for theft based on Numazawa’s 911 call and her statements

to the police. Sergeant Nesbitt also mentioned to Officer Hsu

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that Numazawa had a prior drug history. Sergeant Nesbitt told

Officer Hsu that one reason to seize the truck was Numazawa’s

drug history, but “the main reason was because of the theft that

occurred.” The truck’s windows were down at the time of seizure.

At that point in time, Officer Hsu did not think he had probable

cause to seize the truck for drugs.

Ikimaka asked if he could retrieve the purse from his

vehicle and return it to Numazawa. Numazawa also later arrived

at the scene and asked if she could retrieve the purse from the

truck. However, Officer Hsu “wasn’t going to let [Ikimaka] go

back in the vehicle to grab the purse” because KPD had already

seized the vehicle as evidence.

After the conversation with Sergeant Nesbitt, Officer Hsu

told Ikimaka and Henderson that they were not being arrested

today, and that they could go. However, Ikimaka chose to stay,

and Officer Agbayani read him his Miranda rights. Ikimaka

initially indicated he did not want to make a statement.

However, he then apparently spontaneously said to Officer

Agbayani, “I have [Numazawa’s] bag in my truck. Can you just

arrest me for theft and don’t take my truck?”

c. Circuit court’s ruling

The circuit court orally denied the motion to suppress on

the grounds that KPD had probable cause to seize the truck and

that the dog search was appropriate. On May 13, 2015, the

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circuit court issued its written order denying Ikimaka’s motion

to suppress. The circuit court determined that Officer Hsu had

reasonable suspicion to stop Ikimaka, had probable cause to

believe a theft had been committed, and that the automobile

exception permitted KPD to seize the truck. The circuit court

also determined that the dog sniff was permissible because

Ikimaka “had no expectation of privacy in the airspace around

his vehicle, and there was no inappropriate, dragnet search

done.”

3. Jury trial

Ikimaka and Numazawa’s joint jury trial commenced on August

17, 2015. The following is relevant to the issues we address on

certiorari.

a. Officer Hsu’s testimony

The State called Officer Hsu, who gave testimony

substantively similar to his April 2, 2015 testimony at the

hearing on Ikimaka’s motion to suppress relating to the traffic

stop and the seizure of Ikimaka’s truck. At trial, Officer Hsu

did not testify about Numazawa’s drug history or the dog sniff.

Officer Hsu also testified that he had worked for KPD for

approximately seven years and had participated in

“[a]pproximately over 50” drug-related investigations.

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On cross-examination, Officer Hsu testified that he did not

see Ikimaka touch any of the drugs or ingest the drugs, and the

following exchange took place.

Q. You never saw Mr. Ikimaka smoking or otherwise ingesting any drugs; correct? A. For that night or -- Q. Ever? A. Yes. I never seen him do that, yes. Q. And you have no way of knowing whether Mr. Ikimaka -- THE COURT: Approach. (The following was heard at the bench.) THE COURT: You just realize you asked a very open-ended question and -- [DEFENSE]: I knew the answer, Judge. THE COURT: So it’s real risky. I just want to say I thought it was a very risky question and that is open for the redirect examination. Okay. Thank you. (The following was heard in open court.) BY [DEFENSE]: Q. Officer [Hsu], you have no way of knowing whether Mr. Ikimaka ever intended to possess any of those drugs; correct? A. Correct. [THE STATE]: Your Honor, approach. THE COURT: Approach. (The following was heard at the bench.) THE COURT: This is an interesting question. So, [State], let me hear the argument. [THE STATE]: First of all, it’s speculation. The officer’s not going to (inaudible). Third, it’s a question for the jury -- I mean intended -- THE COURT: I think I’m going to allow him to answer because this is another area of redirect that you can go into. The door was opened, how you establish intent and all that. You can do what you need to, but the issue of intent was raised by [the defense], but only for Mr. Ikimaka . . . . [THE STATE]: Okay. Thank you.

On redirect examination, the following exchange took place.

Q: Now, I believe [the defense] asked about Larry Ikimaka’s intent regarding the drugs found in the vehicle. As a police officer, would you say that Larry Ikimaka had intent to possess drugs, had knowledge of drugs, if he stated “Just arrest me and don’t take my truck”? [DEFENSE]: May we approach? THE WITNESS: Yes. THE COURT: Approach. (The following was heard at the bench.) [DEFENSE]: I think it calls for speculation. THE COURT: This is all the intent questions that was asked . . . during cross-examination.

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[DEFENSE]: But the intent -- but he can’t testify -- he’s speculating as to what my client. THE COURT: You asked him to speculate about intent, so this is just a reasonable -- a logical, reasonable follow up to the questions. That’s why I brought you here when the question was asked. [DEFENSE]: Well, I thought you were talking about 404(b). I asked him whether he has any way to know Mr. Ikimaka’s opinion, and she’s asking him and saying hey, he’s speculating about what Mr. Ikimaka’s intent is. THE COURT: But you asked him to speculate on the issue of intent. He answered. So now I’m going to allow the State to ask the question. You also asked questions about whether he had prior drug use. I don’t know whether he did or didn’t, but that certainly opens the door. [DEFENSE]: I didn’t ask that question. I asked on that date and he said “ever?” So I didn’t want to leave it hanging for the jury. That’s why I said “yeah” after. That’s the way he responded. THE COURT: You opened the door on that. I don’t know whether there’s any information on that. That’s why I brought you up and said this was a risky line of questioning. I mean, it was apparent to the Court. But the strategy you take during your questioning, I don’t get involved in. [DEFENSE]: I did that but what I’m saying with regards to -- I don’t think she’s allowed to ask him if he has a prior history unless she can go through the whole 404(b). That's not what I asked him. I asked him on that day and he asked me “ever?” So it wasn’t fair to me to leave it hanging for the jury. THE COURT: I don’t know what's fair or not. All I know is the question was asked so I’m going to allow it. I don’t know if there’s any relevant information. But as far as the intent part, sure, I'm going to allow [the State] to question about intent given it was raised by you in cross- examination. So you cannot raise an issue and then not expect the other parties to follow up on that, so this is just a reasonable follow up. So your objection is overruled. Thank you. (The following was heard in open court.) . . . . BY [THE STATE]: Q. And, Officer [Hsu], would the fact that Mr. Ikimaka tried to stop the police from taking his truck by saying that indicate his intent to possess drugs in the truck? A. Yes.

b. Officer Agbayani’s testimony

The State called Officer Agbayani, who also gave testimony

hearing on Ikimaka’s motion to suppress, but also provided the

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following testimony relevant to the issues we address on

At approximately 2:30 a.m. on October 13, 2014, Officer

Agbayani arrived at the Kintaro’s Restaurant area in response to

Numazawa’s 911 call. Officer Hsu, Ikimaka, and Henderson were

at the Kintaro’s area when he arrived. The following exchange

between Officer Agbayani and the DPA then took place:

Q. Okay. And did you speak to [Ikimaka]? A. Yes. Q. And you asked [Ikimaka] if he wanted to talk to you about what had happened with the purse? A. Yes. Q. And he didn't want to talk to you? A. Yes. Q. And because he didn’t want to talk to you, you didn’t ask him any questions? A. No, I did not. Q. And after he initially told you that he didn’t want to talk to you -- THE COURT: Approach. (The following was heard at the bench.) THE COURT: I’m going strike all this line of questioning because he has the right to remain silent. It cannot be used against him.

The circuit court then struck the DPA’s line of questioning and

instructed the jury not to consider those questions.

Officer Agbayani then stated that Ikimaka spontaneously

said, “I have [Numazawa’s] bag in my truck. Can you just arrest

me for theft and don’t take my truck?” Officer Hsu had, however,

given him “specific instructions not to let anybody get into the

truck.”

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On cross-examination by Ikimaka, Officer Agbayani

again referenced the fact that Ikimaka did not want to make

a statement in the following exchange:

Q. Okay. And when he was 15 to 20 feet away from you and said something to you, you were walking away from him or he was walking away from you or no? A. I was walking away from him, but this is –- he’s also approaching me. Because when I left him, I have to inform my beat partner that he wasn’t -- he doesn’t want to answer my questions. And then, you know -- I mean, I’m not saying that I have good peripheral views, but we always look –- for security reasons, we always like this, our head is always on swivel. I can see him, you know, kind of like coming towards me. Q. And that’s when he talked to you? A. When he said, yes, that statement, sir.

(Emphasis added.)

c. After completion of State’s evidence

After the State rested its case and the circuit court

denied Ikimaka’s motions for judgment of acquittal and directed

verdict, on August 20, 2015, Ikimaka moved for a mistrial due to

the prosecution’s elicitation of testimony from Officer Agbayani

regarding Ikimaka’s exercise of his right to remain silent. The

circuit court denied the motion, noting that it had issued

curative instructions.

Ikimaka and Numazawa did not call any witnesses, and they

did not testify.

On August 24, 2015, the jury found Ikimaka guilty of both

counts. Numazawa was acquitted.

On December 30, 2015, the circuit court issued its second

amended judgment of conviction and probation sentence,

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sentencing Ikimaka to four years of probation with nine months

additional imprisonment for both Counts 1 and 2.8

C. ICA proceedings

On January 4, 2016, Ikimaka filed his notice of appeal to

the ICA.9 On December 18, 2019, the ICA filed its amended

memorandum opinion, affirming Ikimaka’s conviction. State v.

Ikimaka, CAAP-XX-XXXXXXX (App. Dec. 18, 2019) (mem.).10 In

relevant part, the ICA held the circuit court did not abuse its

discretion by allowing Officer Hsu to give his lay opinion under

HRE Rule 701. Ikimaka, mem. op. at 13. According to the ICA,

although Officer Hsu “did not have personal knowledge of

[Ikimaka’s] statement” to “[j]ust arrest [him] and don’t take

[his] truck,” Officer Agbayani had told him about the statement

and there was no dispute that Ikimaka made the statement.

Ikimaka, mem. op. at 16. Therefore, the ICA determined Officer

Hsu’s opinion was rationally related to his knowledge,

experience, and perceptions. Id.

The ICA also held the DPA did not commit misconduct by

eliciting testimony about Ikimaka’s exercise of his right to

8 Ikimaka was also ordered to pay a $205 Crime Victim Compensation Fee, a $150 Probation Services Fee, and a $2,000 Drug Demand Reduction Assessment for Count 1, and a $105 Crime Victim Compensation Fee and a $1,000 Drug Demand Reduction Assessment for Count 2. 9 See supra text at and note 3, regarding the points on appeal. 10 There are no substantive differences between the original memorandum opinion filed on November 27, 2019, and the amended memorandum opinion filed on December 18, 2019.

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remain silent. Ikimaka, mem. op. at 18 (citing State v.

Tsujimura, 140 Hawai‘i 299, 315, 400 P.3d 500, 516 (2017)

(holding the test in cases where the prosecution elicits

information regarding a defendant’s prearrest silence is whether

the prosecutor intended for the information to imply the

defendant’s guilt or whether the character of the information

suggests that the prearrest silence may be considered as

inferential evidence of guilt). The ICA determined that the DPA

had elicited the testimony in an attempt to “set the physical

circumstances of [a] permitted statement” (Ikimaka’s apparent

spontaneous statement to Officer Agbayani) and did not intend to

use Ikimaka’s silence to imply his guilt. Ikimaka, mem. op. at

18-20. Furthermore, the ICA noted the circuit court immediately

struck the challenged testimony. Ikimaka, mem. op. at 20. The

ICA also stated in a footnote that “at the time of this trial,

it had not been decided by either the United States Supreme

Court nor the Hawai‘i Supreme Court that a defendant’s right to

remain silent existed prior to arrest, or whether prearrest

silence could be used against a defendant at trial.” Ikimaka,

mem. op. at 20 n.15.

On January 21, 2020, the ICA issued its judgment affirming

the circuit court’s second amended judgment of conviction.

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D. Application for writ of certiorari

Ikimaka’s application restates arguments made before the

ICA. As noted, we only address Ikimaka’s first two questions on

certiorari: whether the DPA should have elicited testimony

regarding Ikimaka’s exercise of his right to remain silent, and

whether the circuit court erred by admitting into evidence

Officer Hsu’s lay opinion testimony on Ikimaka’s intent and

knowledge. We need not and do not address Ikimaka’s remaining

questions on certiorari.

III. Standards of Review

A. Plain error

“Plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of

the court.” HRPP Rule 52(b) (2014).

“The appellate court ‘will apply the plain error standard

of review to correct errors which seriously affect the fairness,

integrity, or public reputation of judicial proceedings, to

serve the ends of justice, and to prevent the denial of

fundamental rights.’” State v. Domut, 146 Hawai‘i 183, 190, 457

P.3d 822, 829 (2020) (quoting State v. Nichols, 111 Hawai‘i 327,

334, 141 P.3d 974, 981 (2006)). “An appellate court’s ‘power to

deal with plain error is one to be exercised sparingly and with

caution because the plain error rule represents a departure from

a presupposition of the adversary system—that a party must look

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to [their] counsel for protection and bear the cost of counsel’s

mistakes.’” Id. (quoting Nichols, 111 Hawai‘i at 335, 141 P.3d

at 982).

B. Motion to suppress

“A [circuit] court’s ruling on a motion to suppress

evidence is reviewed de novo to determine whether the ruling was

‘right’ or ‘wrong.’” Estabillio, 121 Hawai‘i at 269, 218 P.3d at

757. “The proponent of the motion to suppress has the burden of

establishing, by a preponderance of the evidence, that the

statements or items sought to be excluded were unlawfully

secured and that his or her right to be free from unreasonable

searches or seizures was violated under the fourth amendment to

the United States Constitution and article I, section 7 of the

Hawai‘i Constitution.” Id.

C. Prosecutorial misconduct

“The term ‘prosecutorial misconduct’ is a legal term of art

that refers to any improper action committed by a prosecutor,

however harmless or unintentional.” State v. Udo, 145 Hawai‘i

519, 534, 454 P.3d 460, 475 (2019). “A prosecutor may not imply

guilt from a defendant’s exercise of the right to remain

silent[.]” Tsujimura, 140 Hawai‘i at 314, 400 P.3d at 515. The

test of whether a prosecutor’s comment was improper is whether

“that comment was manifestly intended or was of such character

that the jury would naturally and necessarily take it to be a

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comment on the failure of the accused to testify.” State v.

Rodrigues, 113 Hawai‘i 41, 49, 147 P.3d 825, 833 (2006) (quoting

State v. Wakisaka, 102 Hawai‘i 504, 515, 78 P.3d 317, 328 (2003))

(internal quotation marks omitted).

D. Admission of opinion testimony

“[A]dmission of opinion evidence is a matter within the

discretion of the trial court, and only an abuse of that

discretion may result in reversal.” State v. Tucker, 10 Haw.

App. 73, 89, 861 P.2d 37, 46 (1993) (citing Sherry v. Asing, 59

Haw. 135, 148, 531 P.2d 648, 658 (1975)). “[T]o constitute an

abuse of discretion a court must have clearly exceeded the

bounds of reason or disregarded rules or principles of law or

practice to the substantial detriment of a party litigant.”

Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114,

839 P.2d 10, 26 (1992).

IV. Discussion

A. The dog sniff was an illegal search, and the motion to suppress should have been granted

Pursuant to HRPP Rule 52(b), “[p]lain errors or defects

affecting substantial rights may be noticed although they were

not brought to the attention of the court.” We notice plain

error with regard to the circuit court’s denial of Ikimaka’s

motion to suppress. In his motion to suppress, Ikimaka argued

the dog sniff conducted on the truck was an impermissible

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general exploratory search. We agree that the dog sniff was

impermissible.

“[T]he right to be free of ‘unreasonable’ searches and

seizures . . . requires that governmental intrusions into the

personal privacy of citizens of this State be no greater in

intensity than absolutely necessary under the circumstances.”

State v. Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58-59 (1974).

“A stop of a vehicle for an investigatory purpose constitutes a

seizure within the meaning of the constitutional protection

against unreasonable searches and seizures.” Estabillio, 121

Hawai‘i at 270, 218 P.3d at 758. In State v. Perez, 111 Hawai‘i

392, 397, 141 P.3d 1039, 1044 (2006), this court adopted a two-

part test to determine whether a search or seizure pursuant to

an investigative stop is reasonable. First, the initial action

must be justified at its inception, and second, the court must

determine whether the search or seizure was reasonably related

in scope to the circumstances which justified the interference

in the first place. Id. (citing Terry v. Ohio, 392 U.S. 1, 20

(1968)).

The dog sniff conducted on the truck was not reasonably

related in scope to Officer Hsu’s initial stop of Ikimaka as it

was unrelated to Ikimaka’s alleged theft of Numazawa’s purse.

An investigation unrelated to the initial stop “must be

supported by independent reasonable suspicion to be

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constitutional.” Estabillio, 121 Hawai‘i at 273, 218 P.3d at 761.

Numazawa’s alleged drug history did not give KPD reasonable

suspicion to believe the truck driven by Ikimaka contained drugs.

Moreover, the dog sniff was impermissible based on the case

law existing at the time of the motion to suppress. The facts

of this case are distinguishable from Groves and Snitkin, which

the circuit court cited in its order denying Ikimaka’s motion to

suppress. In Groves, Groves was initially stopped at the

airport after a pilot reported the smell of marijuana emanating

from Groves’s suitcase. 65 Haw. at 105-06, 649 P.2d at 368.

After stopping Groves, a police officer also noticed the smell

of marijuana from the suitcase, after which a dog sniff was

performed on the suitcase. 65 Haw. at 106, 649 P.2d at 368.

This court held that Groves had no reasonable expectation of

privacy in the airspace around his suitcase and the dog sniff

was not an illegal search. 65 Haw. at 113, 649 P.2d at 372.

However, unlike in Groves, Ikimaka was stopped because he had

allegedly stolen Numazawa’s purse, and the ensuing dog sniff for

drugs was unrelated to that reason.

Also, in Snitkin, the United States Customs Service Drug

Enforcement Agency performed a routine canine survey of a

Federal Express cargo area, and the drug-sniffing dog alerted to

the presence of narcotics in a package. 67 Haw. at 169-70, 681

P.2d at 982. The police obtained a search warrant, found

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cocaine in the package, resealed the package, and arrested

Snitkin after he picked up the package. 67 Haw. at 170, 681

P.2d at 982. This court held that the reasonableness of a dog

sniff “should be determined by balancing the State’s interest in

using the dog against the individual’s interest in freedom from

unreasonable government intrusions,” and that Snitkin’s freedom

interest in the airspace around his package was minimal. 67 Haw.

at 172, 681 P.2d at 983-84. However, we specifically noted that

the package was not detained at the time of the dog sniff. 67

Haw. at 172, 681 P.2d at 984. In this case, unlike Snitkin, KPD

had detained the truck at the time of the dog sniff.

Alvarez, decided after the circuit court decided the

subject motion to suppress, has made it clear that this dog

sniff was an unreasonable search. Alvarez involved a traffic

stop based on police officers’ observations that one of the

passengers was not wearing a seatbelt. 138 Hawai‘i at 175, 378

P.3d at 891. After stopping the car, driven by Alvarez, the

officers recognized Alvarez and his passengers from prior

encounters while assigned to the Hilo Vice Section. Id. The

officers had also received “reliable confidential information”

within the past five days that Alvarez was distributing crystal

methamphetamine. Id. The officers brought a drug-sniffing dog

to the scene, and the dog alerted to the presence of drugs in

the car. Id. This court held that the dog sniff was not

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reasonably related in scope to the original traffic stop, and

the “tip from a confidential informant under the circumstances

[was] ‘not sufficient to establish reasonable suspicion for an

investigatory detention.’” 138 Hawai‘i at 184, 378 P.3d at 900

(citing Estabillio, 121 Hawai‘i at 274, 218 P.3d at 762).

Like in Alvarez, Ikimaka was not stopped on suspicion of

possessing drugs. Because KPD lacked an independent basis to

support a reasonable suspicion that the truck contained drugs

and the dog sniff was not reasonably related in scope to the

circumstances that justified the detention of the truck in the

first place, the dog sniff was impermissible.

Because the result of the dog sniff was the only piece of

information supporting the warrant to search the truck for drugs,

the drug evidence should have been suppressed under the fruit of

the poisonous tree doctrine. See Alvarez, 138 Hawai‘i at 185,

378 P.3d at 901; Estabillio, 121 Hawai‘i at 274, 218 P.3d at

762.11

11 The improper dog sniff invalidated the search warrant. See State v. Tagaolo, 93 Hawaiʻi 314, 2 P.3d 718 (App. 2000) (holding officer’s suspicion that firearm and ammunition were in fanny bag was fruit of poisonous tree of his improper warrantless search of fanny bag by feeling its contents, rendering search warrant invalid and requiring suppression of items found in fanny bag). Even if KPD had, without the dog sniff, obtained a search warrant to search inside the truck for Numazawa’s purse, it should have been readily identifiable and probable cause would have been required for a warrant to allow a further search of the contents of purses within the truck. See State v. Jenkins, 62 Haw. 660, 619 P.2d 108 (1980) (requiring search warrant to search personal luggage taken by police from automobiles); State v. Wong, 68 Haw. 221, 708 P.2d 825 (1985) (holding warrantless search of handbag an unreasonable search despite defendant having stated he had vial of cocaine (continued . . .)

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Hence, the circuit court should have granted Ikimaka’s

motion to suppress. We therefore vacate Ikimaka’s conviction,

and remand for further proceedings consistent with this opinion.

Although this ruling may be dispositive of the drug charges

against Ikimaka, we address his first two questions on

certiorari to provide guidance.

B. The DPA should not have referenced Ikimaka’s initial refusal to speak to Officer Agbayani after Miranda warnings had been given

Ikimaka argues the DPA committed prosecutorial misconduct

by eliciting testimony about the exercise of his right to remain

silent. The ICA held that the DPA did not commit misconduct by

referencing Ikimaka’s initial refusal to talk to Officer

Agbayani after he received Miranda warnings because she was not

attempting to comment on Ikimaka’s silence, did not intend to

use Ikimaka’s silence to imply his guilt, and the circuit court

immediately gave curative instructions. Ikimaka, mem. op. at

19-21 (citing Tsujimura, 140 Hawai‘i at 315, 400 P.3d at 516).

The ICA noted that at the time of Ikimaka’s trial, neither the

United States Supreme Court nor this court had decided whether

(. . . continued) therein); State v. Wallace, 80 Hawaiʻi 382, 405, 910 P.2d 695, 718 (1996) (holding that forty-three heat-sealed clear plastic packets containing cocaine seized during warrant allowing search of automobile for marijuana were not “closed” containers with a reasonable expectation of privacy requiring a warrant to conduct a further search).

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the right to remain silent attached prior to arrest. Ikimaka,

Although the ICA cited Tsujimura, in that case, the DPA was

referring to the defendant’s pre-arrest silence before Miranda

warnings were administered. 140 Hawai‘i at 309, 311, 400 P.3d at

510, 512. Although Ikimaka was not formally arrested at the

point in time the DPA referenced, Officer Agbayani had already

given Ikimaka Miranda warnings. See State v. Uganiza, 68 Haw.

28, 30, 702 P.2d 1352, 1354 (1985) (involving a defendant who

was arrested, read Miranda rights, and not free to leave, and

who invoked his right to remain silent by indicating that he did

not want to make a statement).

Whether or not Miranda rights have been given, prosecutors

may not comment on a defendant’s silence to imply that such

silence is evidence of guilt. State v. Melear, 63 Haw. 488, 496,

630 P.2d 619, 626 (1981). The test of whether a prosecutor’s

comment was improper is whether “that comment was manifestly

intended or was of such character that the jury would naturally

and necessarily take it to be a comment” on the exercise of the

right to remain silent. Rodrigues, 113 Hawai‘i at 49, 147 P.3d

at 833 (quoting Wakisaka, 102 Hawai‘i at 515, 78 P.3d at 328)

On direct examination of Officer Agbayani, the following

exchange between the DPA and Officer Agbayani took place:

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Q: Okay. And did you speak to [Ikimaka]? A: Yes. Q: And you asked [Ikimaka] if he wanted to talk to you about what had happened with the purse? A: Yes. Q: And he didn’t want to talk to you? A: Yes. Q: And because he didn’t want to talk to you, you didn’t ask him any questions. A: No, I did not. Q: And after he initially told you that he didn’t want to talk to you -- THE COURT: Approach.

(Emphases added.)

Contrary to the ICA’s memorandum opinion, the DPA’s line of

questioning could have implied Ikimaka’s guilt. Although the

DPA’s questions could have “set the physical circumstances” of

Ikimaka’s eventual statement in some manner, Ikimaka, mem. op.

at 19, the DPA referenced Ikimaka’s silence before eliciting

testimony about Ikimaka’s eventual statement regarding

Numazawa’s purse. Although even one reference was improper, the

DPA made three references in quick succession. Because we

vacate Ikimaka’s conviction on other bases, we need not

determine the DPA’s intent or whether the questions constituted

prosecutorial misconduct. We caution, however, that prosecutors

may not elicit testimony regarding a defendant’s exercise of

their right to remain silent. See Rodrigues, 113 Hawai‘i at 49,

147 P.3d at 833.

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C. Officer Hsu’s opinion testimony as to Ikimaka’s intent and knowledge

Ikimaka also argues Officer Hsu’s testimony regarding his

intent to possess the drugs was speculative and inadmissible

pursuant to HRE Rules 602 (1992)12 and 701 (1984).13 The ICA held

that Officer Hsu’s testimony was a lay opinion permissible under

HRE Rule 701 and that Ikimaka opened the door to his redirect

testimony by questioning Officer Hsu about intent on cross-

examination. Ikimaka, mem. op. at 15-18.

On cross-examination, the following exchange between

Ikimaka and Officer Hsu occurred:

Q. You never saw Mr. Ikimaka smoking or otherwise ingesting any drugs; correct? A. For that night or -- Q. Ever? A. Yes. I never seen him do that, yes. Q. And you have no way of knowing whether Mr. Ikimaka -- . . . . Q. Officer [Hsu], you have no way of knowing whether Mr. Ikimaka ever intended to possess any of those drugs; correct? A. Correct.

12 HRE Rule 602 provides:

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses. 13 HRE Rule 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

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The DPA objected to Ikimaka’s question as calling for

speculation, but the circuit court allowed the question, stating,

“The door was opened, how you establish intent and all that,”

and that the DPA could address the issue on redirect.

The circuit court erred, however, in ruling that the

defense “opened the door.”

The ‘opening the door’ doctrine is essentially a rule of expanded relevancy . . . .” State v. James, 144 N.J. 538, 677 A.2d 734, 742 (1996). “Under this doctrine, when one party introduces inadmissible evidence, the opposing party may respond by introducing [ ] inadmissible evidence on the same issue.” State v. Fukusaku, 85 Hawaiʻi 462, 497, 946 P.2d 32, 67 (1997); see also State v. Dvorak, 295 S.W.3d 493, 502 (Mo. Ct. App. E.D. 2009) (the doctrine applies after one party introduces inadmissible evidence). Admissible evidence therefore does not ‘open the door’ to otherwise inadmissible evidence. State v. Middleton, 998 S.W.2d 520, 528 (Mo. 1999) (“A party may not, however, introduce inadmissible evidence to rebut inferences raised by the introduction of admissible evidence during cross- examination.”).

State v. Lavoie, 145 Hawai‘i 409, 422-23, 453 P.3d 229, 242-43

(2019) (footnote omitted). As we further stated in our recent

opinion in State v. Miranda, --- Hawaiʻi ---, -- n.13, --- P.3d

---, -- n.13, 2020 WL 2988268 at *10 n.13 (June 4, 2020), this

court has not adopted the “opening the door” doctrine:

[The opening the door doctrine] has also been referred to as the doctrine of “curative admissibility” or “fighting fire with fire.” State v. Fukusaku, 85 Hawai‘i 462, 497, 946 P.2d 32, 67 (1997). This court has not determined whether to adopt the doctrine. State v. Lavoie, 145 Hawaiʻi 409, 424, 453 P.3d 229, 244 (2019) (“[E]ven if we were to adopt the doctrine of curative admissibility, it would not be applicable to the present case.” (quoting Fukusaku, 85 Hawai‘i at 497, 946 P.2d at 67)).

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Thus, although some courts have adopted the “opening the door”

doctrine when one party introduces inadmissible evidence, which

allows the opposing party to “respond by introducing

inadmissible evidence on the same issue,” we have not done so.

And the doctrine would in any event be inapplicable here because

“admissible evidence [] does not ‘open the door’ to otherwise

inadmissible evidence.” Lavoie, 145 Hawai‘i at 422, 453 P.3d at

242. In this case, Ikimaka’s question of whether Officer Hsu

had “no way of knowing” his intent to possess drugs did not

elicit inadmissible evidence. Ikimaka’s question did not ask

Officer Hsu to speculate on Ikimaka’s intent, but rather sought

to point out that Officer Hsu could not know Ikimaka’s intent.

Therefore, Ikimaka’s cross-examination question could not have

“opened the door” to otherwise inadmissible evidence.

In addition, for the reasons explained below, the following

exchange between the DPA and Officer Hsu was otherwise

inadmissible:

Q: Now, I believe [the defense] asked about Larry Ikimaka’s intent regarding the drugs found in the vehicle. As a police officer, would you say that Larry Ikimaka had intent to possess drugs, had knowledge of drugs, if he stated “Just arrest me and don’t take my truck”? . . . . Q: And, Officer [Hsu], would the fact that Mr. Ikimaka tried to stop the police from taking his truck by saying that indicate his intent to possess drugs in the truck? A: Yes.

HRE Rule 602 provides that witnesses “may not testify to a

matter unless evidence is introduced sufficient to support a

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finding that the witness has personal knowledge of the matter.”

The commentary to HRE Rule 602 explains that “personal knowledge”

means “that the witness perceived the event about which [they]

testif[y] and that [they have] a present recollection of that

perception.” HRE Rule 701 provides that lay witness opinion

testimony is limited to “those opinions or inferences which are

(1) rationally based on the perception of the witness, and

(2) helpful to a clear understanding of the witness’ testimony

or the determination of a fact in issue.”

Although HRE Rule 602 requires witness testimony to be

based on the “personal knowledge” of that witness, as the ICA

noted in its memorandum opinion, “Officer Hsu did not have

personal knowledge of [Ikimaka’s] statement.” Ikimaka, mem. op.

at 16. Officer Hsu was not testifying as an expert witness

under HRE Rule 702 (1992),14 and his opinion was therefore a lay

opinion under HRE Rule 701. HRE Rule 701 requires that a “lay

opinion be based upon firsthand knowledge,” and Officer Hsu did

not have firsthand knowledge of Ikimaka’s statement. HRE Rule

14 HRE Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.

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701 cmt. Therefore, Officer Hsu’s opinion that Ikimaka’s

statement evidenced his knowledge and intent to possess drugs

was not admissible under HRE Rule 602 or 701.

Moreover, Officer Hsu’s testimony on Ikimaka’s intent and

knowledge was also impermissible because it expressed a legal

conclusion as to Ikimaka’s state of mind. See State v. Vliet,

91 Hawai‘i 288, 296-97, 983 P.2d 189, 197-98 (1999). While HRE

Rule 704 (1980) permits testimony “embrac[ing] an ultimate issue

to be decided by the trier of fact,” it “does not allow ‘the

admission of opinions which would merely tell the jury what

result to reach[.]’” State v. Batangan, 71 Haw. 552, 559, 799

P.2d 48, 52 (1990) (quoting HRE Rule 704 cmt.); see also State v.

Ryan, 112 Hawai‘i 136, 141, 144 P.3d 584, 589 (App. 2006)

(holding an officer’s opinion testimony that the complaining

witness was truthful impermissibly invaded the province of the

jury to determine the facts). “Nor is [HRE Rule 704] intended

to allow a witness to give legal conclusions.” Vliet, 91 Hawai‘i

at 296-97, 983 P.2d at 197-98.

Here, Ikimaka was charged with promoting a dangerous drug

in the second degree in violation of HRS § 712-1242, which

requires “knowing” possession of the drugs. Ikimaka was also

charged with unlawful use of drug paraphernalia in violation of

HRS § 329-43.5(a), which requires possession of drug

paraphernalia with “intent to use” it for the enumerated

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purposes. Therefore, Officer Hsu’s testimony as to Ikimaka’s

intent and knowledge expressed a legal conclusion and told the

jury what result to reach, and it was not admissible under HRE

Rule 704.

Additionally, Officer Hsu’s testimony was improperly

“imbued with an aura of expertise,” as he testified at trial

that he had been involved in “[a]pproximately over 50” drug

investigations. See State v. Calara, 132 Hawai‘i 391, 393, 322

P.3d 931, 933 (2014) (holding an officer’s testimony regarding

whether complaining witness’s allegations provided him with

probable cause was tantamount to an expression of an opinion

that the witness had been truthful, which was “imbued with an

aura of expertise due to his experience” and invaded the

province of the jury); Ryan, 112 Hawai‘i at 141, 144 P.3d at 589

(holding that an emphasis on officers’ training and experience

in domestic violence cases gave the officers “an aura of being

experts in evaluating the truthfulness” of the complaining

witness’s statements). Therefore, the circuit court abused its

discretion by admitting Officer Hsu’s testimony on Ikimaka’s

intent and knowledge.

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V. Conclusion

We therefore vacate in part the ICA’s January 21, 2020

judgment on appeal to the extent it affirmed the circuit court’s

December 30, 2015 second amended judgment of conviction and

probation sentence but affirm it to the extent it dismissed the

State’s cross-appeal as moot. We also vacate the circuit

court’s December 30, 2015 second amended judgment of conviction

and probation sentence and its May 13, 2015 order denying

Ikimaka’s motion to suppress. We remand this matter to the

circuit court for further proceedings consistent with this

opinion.

Rosa Flores /s/ Mark E. Recktenwald for Petitioner /s/ Paula A. Nakayama

Tracy Murakami /s/ Sabrina S. McKenna for Respondent /s/ Richard W. Pollack

/s/ Michael D. Wilson