State v. Okubo

682 P.2d 79, 67 Haw. 197, 1984 Haw. LEXIS 108

• Court: Hawaii Supreme Court
• Decided: May 29, 1984
• Docket: NO. 8286
• Status: Published

Opinions

OPINION OF THE COURT BY

LUM, C.J.

We granted writ of certiorari to review the appeal of Roy Okubo and George Yamamoto from the decision of the Intermediate Court of Appeals (ICA) reversing the circuit court’s suppression of taped conversations which were to be used as evidence against them on charges of bribing two police officers. We affirm the ICA’s decision.

Okubo and Yamamoto were indicted in January of 1981 for bribing two policemen in violation of Hawaii Revised Statutes (HRS) § 710-1040(l)(a). Evidence against them was obtained through the warrantless taping and transmission of approximately forty face-to-face and telephone conversations Okubo and Yamamoto had with the officers over a seven month period. The police used four methods to obtain evidence:

(1) A participant-police officer wore a “Nagra” brand body tape recorder which recorded face-to-face conversations;

(2) A participant-police officer permitted telephone conversations to be recorded with an audio recorder attached to the phone which the officer was using;

(3) A participant-police officer wore a transmitter, which simultaneously broadcasted face-to-face conversations to other police officers who monitored and recorded the conversations, sometimes in conjunction with videotape recordings and sometimes not; and

(4) The monitoring police officers video-tape recorded the face-to-face conversations among Officers Nagao and Higa and the defendants. See 3 Haw. App. at 398; 651 P.2d at 497-98 (1982).

The two participant police officers consented to the recordings and videotapes. Okubo and Yamamoto did not know of, or consent to, any of the tapings, although they testified that they did know that they were speaking with police officers. A meeting and conversation that occurred at a public restaurant, the Beretania Saimin, on January 9, 1980 was taped, transmitted and videotaped. Okubo and Yamamoto moved to suppress all of the tapes under Rule 12(b), Hawaii Rules of Penal Procedure (1977), and on September 4, 1981 the circuit court partially granted the motion, suppressing the taped conversations but allowing in the soundless videotapes. The lower court found that the warrantless taping of the conversations violated Article I, § 7 of the Hawaii Constitution,¹ and HRS § 803-42(b)(3).²

On appeal by the State, the case was assigned to the ICA. The ICA reversed the circuit court’s suppression under State v. Lester, 64 Haw. 659, 649 P.2d 346 (1982) and held that since the tapes were made with the consent of one of the parties to the conversation, a warrant was not required. 3 Haw. App. 396, 409, 651 P.2d 494, 504 (1982). The ICA also held that HRS § 803-42(b)(3) expressly allows the interception of a wire or oral communication if one party to the conversation consents to the interception. Okubo and Yamamoto argue once again in this appeal that they have a protected privacy interest under Article I, § 7, and that the circuit court’s suppression was proper.

In Lester, supra, two members of the court found no violation of either Article I, § 7 or HRS § 803-42(b)(3). 64 Haw. at 668, 649 P.2d at 353. One justice concurred because the conversation between Lester and the government agent occurred in a public park. The concurrence expressed reservations over the propriety of such a recording if it had occurred in a private place, or if the conversation had been simultaneously recorded and transmitted to other hidden agents. 64 Haw. at 674-75, 649 P.2d at 356-57. The two dissenting justices found a violation of Section 7 of the Hawaii Constitution. 64 Haw. at 676; 649 P.2d at 357-58.

Gary T. Hayashi (James E.T. Koshiba, with him for the writ and on the brief, Koshiba C? Young) for petitioners-appellees. Thomas Pico (Edward H. Kubo, Jr., on the brief), Deputy Prosecuting Attorneys, for respondent-appellant.

Because of the change in the composition of this court, we granted certiorari only to review the important issues. We affirm the reasoning in the plurality opinion of Lester, supra, and the IC A’s decision in Okubo, supra, and find the consensual monitoring of the conversation valid under Article I, § 7 of the Hawaii Constitution and HRS § 80S-42(b)(3). Affirmed.

1 Article 1, § 7 provides:

Section 1. 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.

2 HRS § 803-42(b)(3) provides:

It shall not be unlawful under this part for a person to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act; provided that installation in any private place, without consent of the person or persons entitled to privacy therein, of any device for recording, amplifying, or broadcasting sounds or events in that place, or use of any such unauthorized installation, or installation or use outside a private place of such device to intercept sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein is prohibited.