OPINION OF THE COURT BY
RICHARDSON, C.J.
The question is whether a search and seizure, conducted with the consent of another, is a reasonable one within the spirit and meaning of the Fourth Amendment of the [63]*63United States Constitution1 and Article I, sec. 5 of the Constitution of the State of Hawaii.2
On the basis of description by victims of a robbery, the police investigated the nearby housing area looking for the defendant. They saw him on a fourth floor balcony of an apartment building. With neither arrest nor search warrants, four police officers converged upon the apartment, rang the bell and obtained permission to enter the apartment from the tenant. The police seized, among other items, a coat lying on a bed in a bedroom occupied with the permission of the tenant, by another and defendant, and subsequently used that coat in a pre-arrest identification procedure. At trial, the court admitted the coat to which defendant claimed no ownership, over his objections that his constitutional protections against unreasonable searches and seizures had been violated. The judge entered the verdict of guilty from which defendant appeals.
I.
Timeliness of the Motion to Suppress Evidence.
After ruling that the motion to suppress was untimely made, the trial judge nevertheless ruled upon the merits of the motion by holding the evidence admissible. This procedure was within the court’s discretionary powers provided in H.E.Cr.P. 41(e) :
“The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, [64]*64but the court in its discretion may entertain the motion at the trial or hearing.” (Emphasis added.)
The hearing and ruling upon the motion to suppress evidence moots the question of timeliness, and defendant can now appeal from the ruling on the motion.
II.
Standing to Object to an Unreasonable Sewrch and Seizure. ■
We must keep in mind that the question of standing and the question of what constitutes an unreasonable search and seizure are separate questions. The former involves the question whether a party is entitled to have his claim to a protected right determined; the latter involves a determination of whether that right has been violated.
The appeal in Jones v. United States, 362 U.S. 257 (1960), raised the crucial question as to whether petitioner, a houseguest, had standing to object to sufficiency of the search warrant since he did not claim any property interest in the seized goods. The court indicated that the constitutional protections against government intrusion were not dependent on ownership or possession but on a person’s claim to privacy of his person, property or home. At pp. 265-7, the court had stated:
“While this Court has never passed upon the interest in the searched premises necessary to maintain a motion to suppress, the Government’s argument closely follows the prevailing view in the lower courts. They have denied standing to ‘guests’ and ‘invitees’ (e.g., Gaskins v. United States, 95 U.S. App. D.C. 34, 35, 218 F.2d 47, 48; Gibson v. United States, 80 U.S. App. D.C. 81, 84, 149 F.2d 381, 384; In re Nassetta, 125 F.2d 924; Jones v. United States, 104 U.S. App. D.C. 345, [65]*65262 F.2d 234), and employees, wlio though in ‘control’ or ‘occupancy’ lacked ‘possession’ (e.g., Connolly v. Medalie, 58 F.2d 629, 630; United States v. Conoscente, 63 F.2d 811). The necessary quantum of interest has been distinguished as being, variously, ‘ownership in or right to possession of the premises’ (e.g., Jeffers v. United States, 88 U.S. App. D.C. 58, 61, 187 F.2d 498, 501, affirmed, Jeffers v. United States, 342 U.S. 48), the interest of a ‘lessee or licensee’ (United States v. De Bousi, 32 F.2d 902), or of one with ‘dominion’ (McMillan v. United States, 26 F.2d 58, 60; Steeber v. United States, 198 F.2d 615, 617). We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. See Occupiers’ Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between ‘lessee,’ ‘licensee,’ ‘invitee,’ and ‘guest,’ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.”
Petitioner Jones was found to have a right to privacy because he was legitimately on the premises with the permission of the tenant. This finding suggests that a person has a “halo” of privacy wherever he goes and can invoke [66]*66a protectable right to privacy wherever he may legitimately be and reasonably expect freedom from governmental intrusion:
“No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner’s testimony established Evans’ consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.” Jones v. United States, supra at 267.
Our conclusion is buttressed by the holding in Manousi v. De Forte, 392 U.S. 364, 88 S. Ct. 2120 (1968); wherein the court specifically rejected any title-ownership standard to standing to object. In that case, the government had without warrant searched and seized material from a union office which defendant shared with othei’s. The court stated:
“The Court’s recent decision in Katz v. United States, 389 U.S. 347
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT BY
RICHARDSON, C.J.
The question is whether a search and seizure, conducted with the consent of another, is a reasonable one within the spirit and meaning of the Fourth Amendment of the [63]*63United States Constitution1 and Article I, sec. 5 of the Constitution of the State of Hawaii.2
On the basis of description by victims of a robbery, the police investigated the nearby housing area looking for the defendant. They saw him on a fourth floor balcony of an apartment building. With neither arrest nor search warrants, four police officers converged upon the apartment, rang the bell and obtained permission to enter the apartment from the tenant. The police seized, among other items, a coat lying on a bed in a bedroom occupied with the permission of the tenant, by another and defendant, and subsequently used that coat in a pre-arrest identification procedure. At trial, the court admitted the coat to which defendant claimed no ownership, over his objections that his constitutional protections against unreasonable searches and seizures had been violated. The judge entered the verdict of guilty from which defendant appeals.
I.
Timeliness of the Motion to Suppress Evidence.
After ruling that the motion to suppress was untimely made, the trial judge nevertheless ruled upon the merits of the motion by holding the evidence admissible. This procedure was within the court’s discretionary powers provided in H.E.Cr.P. 41(e) :
“The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, [64]*64but the court in its discretion may entertain the motion at the trial or hearing.” (Emphasis added.)
The hearing and ruling upon the motion to suppress evidence moots the question of timeliness, and defendant can now appeal from the ruling on the motion.
II.
Standing to Object to an Unreasonable Sewrch and Seizure. ■
We must keep in mind that the question of standing and the question of what constitutes an unreasonable search and seizure are separate questions. The former involves the question whether a party is entitled to have his claim to a protected right determined; the latter involves a determination of whether that right has been violated.
The appeal in Jones v. United States, 362 U.S. 257 (1960), raised the crucial question as to whether petitioner, a houseguest, had standing to object to sufficiency of the search warrant since he did not claim any property interest in the seized goods. The court indicated that the constitutional protections against government intrusion were not dependent on ownership or possession but on a person’s claim to privacy of his person, property or home. At pp. 265-7, the court had stated:
“While this Court has never passed upon the interest in the searched premises necessary to maintain a motion to suppress, the Government’s argument closely follows the prevailing view in the lower courts. They have denied standing to ‘guests’ and ‘invitees’ (e.g., Gaskins v. United States, 95 U.S. App. D.C. 34, 35, 218 F.2d 47, 48; Gibson v. United States, 80 U.S. App. D.C. 81, 84, 149 F.2d 381, 384; In re Nassetta, 125 F.2d 924; Jones v. United States, 104 U.S. App. D.C. 345, [65]*65262 F.2d 234), and employees, wlio though in ‘control’ or ‘occupancy’ lacked ‘possession’ (e.g., Connolly v. Medalie, 58 F.2d 629, 630; United States v. Conoscente, 63 F.2d 811). The necessary quantum of interest has been distinguished as being, variously, ‘ownership in or right to possession of the premises’ (e.g., Jeffers v. United States, 88 U.S. App. D.C. 58, 61, 187 F.2d 498, 501, affirmed, Jeffers v. United States, 342 U.S. 48), the interest of a ‘lessee or licensee’ (United States v. De Bousi, 32 F.2d 902), or of one with ‘dominion’ (McMillan v. United States, 26 F.2d 58, 60; Steeber v. United States, 198 F.2d 615, 617). We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. See Occupiers’ Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between ‘lessee,’ ‘licensee,’ ‘invitee,’ and ‘guest,’ often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.”
Petitioner Jones was found to have a right to privacy because he was legitimately on the premises with the permission of the tenant. This finding suggests that a person has a “halo” of privacy wherever he goes and can invoke [66]*66a protectable right to privacy wherever he may legitimately be and reasonably expect freedom from governmental intrusion:
“No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress, when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched. As petitioner’s testimony established Evans’ consent to his presence in the apartment, he was entitled to have the merits of his motion to suppress adjudicated.” Jones v. United States, supra at 267.
Our conclusion is buttressed by the holding in Manousi v. De Forte, 392 U.S. 364, 88 S. Ct. 2120 (1968); wherein the court specifically rejected any title-ownership standard to standing to object. In that case, the government had without warrant searched and seized material from a union office which defendant shared with othei’s. The court stated:
“The Court’s recent decision in Katz v. United States, 389 U.S. 347, also makes it clear that capacity to claim the protection of the amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was a reasonable expectation of freedom from governmental intrusion.”
In our opinion, defendant Matias, even though an overnight guest of the tenant, had a right to privacy in the premises of that apartment. He had the right to reasonably expect freedom from governmental intrusion.
[67]*67III.
What Constitutes a Valid Consent f
Our study of the history of the Fourth Amendment3 and innumerable decisions of the United States Supreme Court on unreasonable searches and seizures compels us to conclude that the Fourth Amendment right may be waived only by the individual entitled to the right. It follows that a search and seizure under a third party consent is unreasonable and hence violative of the spirit and meaning of the constitutional prohibition.
Having established that Matías had a right to privacy in the apartment and therefore has standing to object, we further hold that his constitutional right to privacy cannot be waived by another unless he has authorized another to do so.
The Fourth Amendment guarantees the individual a right to privacy in person and property. As a rule, government officials must obtain a search warrant if that search and seizure is to be declared a reasonable one. Weeks v. United States, 232 U.S. 383 (1914).4
[68]*68Joseph L. Dwight, Jr. for defendant-appellant.
As to exceptional circumstances which may excuse the need for a warrant, see Johnson v. United States, 333 U.S. 10, 13-15 (1948).
In the instant case, the government had neither search warrant nor exceptional circumstances to support the validity of the search and seizure. The government contends the validity of this search and seizure rests upon the consent of another person, but we reject the argument because the consent of the tenant operates only to waive the consenter’s right to protection under the amendment; that is to say, the tenant waives only his right to object to an unreasonable search and seizure.
In Stoner v. California, 376 U.S. 483, 489 (1964), the court stated that:
“It is important to bear in mind that it was the petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent. It is true that the night clerk clearly and unambiguously consented to the search. But there is nothing in the record to indicate that the police had any basis whatsoever to believe that the night clerk had been authorized by the petitioner to permit the police to search the petitioner’s room.” (Emphasis added.)
We think that the United States Supreme Court made it clear in Stoner, supra, that the Fourth Amendment right is a personal right; that the right can be waived by the possessor of that right only by word or deed or through an agent, and that the right would disappear if left to the “unfettered” discretion of others.
The conviction is reversed and the case is remanded for a new trial.
[69]*69John H. Peters, Prosecuting Attorney (Robert E. Teruya,, Deputy Prosecuting Attorney, with him on the brief), for plaintiff-appellee.