State v. Talo

509 P.3d 1129, 151 Haw. 166

• Court: Hawaii Intermediate Court of Appeals
• Decided: May 20, 2022
• Docket: CAAP-20-0000457
• Status: Published

Opinion

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Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-MAY-2022 07:51 AM Dkt. 79 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v. LOGOVII TALO, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CRIMINAL NO. 1PC161000667)

MEMORANDUM OPINION (By: Leonard, Presiding J., Hiraoka, J.; and Circuit Court Judge Ashford, in place of Ginoza, C.J., and Wadsworth, Nakasone and McCullen, JJ., all recused)

Defendant-Appellant Logovii Talo (Talo) appeals from

the June 18, 2020 Order of Resentencing Revocation of Probation

Notice of Entry (Resentencing Order) entered by the Circuit Court

of the First Circuit (Circuit Court).1

I. BACKGROUND

A. Procedural History

On April 27, 2016, Plaintiff-Appellee the State of

Hawai#i (State) charged Talo by Felony Information with Assault

1 The Honorable Karen T. Nakasone presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

in the Second Degree, in violation of Hawaii Revised Statutes

(HRS) § 707-711(1)(a) (2014) and/or HRS § 707-711(1)(b) (2014).2

On April 4, 2017, Talo pled no contest to Assault in the Second

Degree. On June 29, 2017, the Circuit Court entered a Judgment

of Conviction and Probation Sentence Notice of Entry (Judgment of

Conviction), sentencing Talo to four (4) years of probation with

special terms and conditions and one day imprisonment, with

credit for time already served.

The Form K (plea) provided that the maximum

imprisonment/fine was five (5) years and $10,000, with no

extended term of imprisonment or mandatory minimum term of

imprisonment. Talo's terms and conditions of probation provided,

in relevant part: 8. Your further special conditions of probation are as follows: You Shall:

a. Follow all reasonable instructions which are given to you by your probation officer;

b. Not own or possess any firearms or ammunition. If you have any firearms or ammunition, you must

2 HRS § 707-711(1)(a),(b) provides:

§ 707-711 Assault in the second degree. (1) A person commits the offense of assault in the second degree if: (a) The person intentionally or knowingly causes substantial bodily injury to another;

(b) The person recklessly causes serious or substantial bodily injury to another[.]

. . . .

(2) Assault in the second degree is a class C felony.

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immediately turn them in to the appropriate county police department;

YOUR FURTHER SPECIAL TERMS AND CONDITIONS OF PROBATION ARE ATTACHED.

WARNING: IF YOUR WHEREABOUTS BECOME UNKNOWN TO YOUR PROBATION OFFICER BECAUSE OF YOUR FAILURE TO KEEP HIM/HER INFORMED, THE COURT MAY ORDER YOUR ARREST. UPON ANY FAILURE TO COMPLY WITH EACH OF THE TERMS AND CONDITIONS OF YOUR PROBATION, INCLUDING SPECIAL CONDITIONS, THE COURT MAY REVOKE YOUR PROBATION AND SENTENCE YOUR [sic] TO PRISON OR CHANGE OR ADD TO THE CONDITIONS OF YOUR PROBATION.

YOU ARE FURTHER INFORMED THAT YOU ARE PROHIBITED FROM OWNING OR POSSESSING ANY FIREARM OR AMMUNITION PURSUANT TO HRS § 134-7.

YOU SHALL:

B. Not own or possess any firearms or ammunition. If you have any firearms or ammunition, you must immediately turn them in to the appropriate county police department;

Q. Submit at reasonable times to a search of your person, residence, vehicle, or other sites and property under your control by any probation officer, with or without a warrant, based on reasonable suspicion that illicit substance(s) or other contraband, may be in the place(s) of a search. Any illicit substance(s) or contraband found or observed in such a search may be seized[.]

On June 29, 2017, Talo signed an Acknowledgment of

Receipt of Conditions of Probation/DAGP/DANCP Supervision. Talo

and his probation officer signed the terms and conditions of

probation on July 20, 2017.

On December 6, 2019, the State filed a Motion for

Revocation of Probation, Resentencing and Issuance of Bench

Warrant (Motion to Revoke Probation) and moved for the issuance

of a Bench Warrant for Talo for violating the terms and

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conditions of probation pursuant to HRS § 706-625 (2014),3 based

in part on the recovery of a firearm and ammunition from Talo's

residence stemming from a warrantless search executed on December

6, 2019. According to a Warrantless Search Report, Search Unit

Supervisor for the Adult Client Services Branch, Eleanor Kekauoha

(Kekauoha), received confidential information that Talo was in

possession of a firearm. On October 7, 2019, Kekauoha contacted

the Honolulu Police Department (HPD) requesting security for a

possible warrantless search.

The Warrantless Search Report included that Talo failed

to report a correct address and did not report to his probation

3 HRS § 706-625 provides, in relevant part:

§ 706-625 Revocation, modification of probation conditions. (1) The court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation except as provided in subsection (7), reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of Section 706-627.

(3) The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.

(4) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law- abiding life.

(5) When the court revokes probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which the defendant was convicted.

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appointments on October 10 and October 17, 2019. On October 25,

2019, Talo confirmed his correct address.

The report also provided that Kekauoha met with HPD on

December 4, 2019, for a briefing concerning the upcoming

warrantless search, and she also met with the Adult Probation

Search Unit on December 5 and December 6, 2019, for briefing.

The Adult Probation Search Unit, with HPD present for security,

executed a warrantless search of Talo's residence at

approximately 10:00 a.m. on December 6, 2019, which resulted in

the recovery of a firearm and ammunition. Talo was then arrested

on a Probation Revocation Warrant, as well as for

Ownership/Possession Prohibited, Possession of a Prohibited

Weapon; however, as discussed herein, Talo was never "conferred"

to the prosecutor's office for charges related to such non-

probation-related offenses or otherwise charged with those

offenses.

The Declaration of Supervising Probation Officer Dwight

S. Sakai (Sakai) accompanied the Motion to Revoke Probation and

provided several bases for revoking Talo's probation including,

in relevant part: 5. That in a Petition for an Order for Protection, filed on June 28, 2019, in Case Number FC-DA No. 19-1-1456, by [Talo]'s wife, Jenifer L.P. Talo [(Jenifer)], she stated that [Talo] had access to firearm(s) from "family and friends who has weapons." That Petition was dissolved without prejudice as of July 10, 2019;

6. That in a Petition for an Order for Protection, filed on July 26, 2019, in Case Number FC-DA No. 19-1-1676, by [Jenifer], who stated that [Talo] had access to firearm(s) from "family and friends who has weapons."

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That Petition was dissolved without prejudice as of August 7, 2019;

7. That on December 6, 2019, a warrantless search was executed on [Talo], which resulted in the recovery of ammunition from his vehicle;

8. That [Talo], in the City and County of Honolulu, State of Hawai#i, and within the jurisdiction of this court and while the terms and conditions of probation were still in effect, violated the terms and conditions of probation as follows:

X That [Talo] failed to report to the [Administrative Risk Management Section (ARMS)] Section on April 3, 2019 and October 10, 2019, despite instructions to do so; X That on November 7, 2018, [Talo] reported late to his appointment with the ARMS probation officer; X That [Talo] failed to notify the ARMS Section of the change in his address, prior to moving on March 1, 2019; X That [Talo] failed report the correct address to the ARMS Section, which resulted in the return of the appointment letter to the ARMS Section, undeliverable, and with a postmark on the envelope, indicating that the address was incorrect; X That [Talo] failed to notify the ARMS Section of the change in the status of his telephone number, which resulted in the ARMS Section's inability to contact [Talo] by phone on October 21, 2019; X That a firearm and ammunition were recovered from [Talo]'s residence.

On December 12, 2019, the State filed a Motion to

Revoke Bail or, in the Alternative, to Increase [Talo]'s Bail

(Motion to Increase Bail). On December 12, 2019, a Report of

Probation Officer was filed, noting that Talo's case was assigned

to ARMS and indicated, inter alia, various alleged probation

violations. On December 13, 2019, the Circuit Court granted the

State's Motion to Increase Bail and bail was set at $100,000.00.

On January 10, 2020, a Supplemental Report of Probation Officer

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was filed providing that the investigation on Talo's pending

firearms case was still pending. This report provided: On January 9, 2020, [HPD] Detective David Lacuata [(Detective Lacuata)], who is conducting the investigation on [Talo]'s pending firearms case, reported that the investigation is still pending.

On January 16, 2020, the Circuit Court held a hearing

on the Motion to Revoke Probation, which was based on the alleged

violations set forth in Sakai's declaration, including: (1)

Talo's failure to report on April 3, 2019, and October 10, 2019;

(2) Talo reporting late on November 7, 2019; (3) Talo's failure

to notify probation of change of address; (4) Talo's failure to

report correct address; (5) Talo's failure to notify probation of

change in telephone number; and (6) the firearm and ammunition

recovered from Talo's residence. Talo made an oral motion to

suppress the evidence gathered as a result of the warrantless

search, including the firearm and ammunition (Motion to Suppress

Evidence). The Circuit Court considered the Motion to Suppress

Evidence as a challenge to the reasonableness of the warrantless

search under State v. Propios, 76 Hawai#i 474, 879 P.2d 1057

(1994). The Circuit Court also noted: Let me put this on record before we begin the hearing. I did want to put both sides on notice that the Court does have a concern that by proceeding on the firearm and ammunition probation violation, and if defendant is found guilty of that violation and there's a consequence, and he gets a penalty for that violation, it may create a double jeopardy type problem if the defendant gets a penalty from this court on the firearm and ammunition violation and then he's subsequently charged for the criminal offense based on this firearm and ammunition, which would be the same conduct. I do have concerns, and I've articulated those concerns off record leading up to today, and the State is

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aware of the Court's concern, but the State still wants to proceed on this violation, right?

As discussed further below, the Circuit Court

considered testimony from Talo's wife, Jenifer, probation

supervisor Kekauoha,4 and probation officer Shawn Naito (PO

Naito).

On January 17, 2020, Kekauoha submitted and filed a

Second Supplemental Report of Probation Officer (Second

Supplemental Probation Report), which provided, inter alia, that

on September 30, 2019, HPD Sergeant Michelle Phillips (Sgt.

Phillips) called Kekauoha to inform her that Jenifer and one of

their children had "gone to Wahiawa Police Station, requesting

for a probation revocation warrant" for Talo because he was in

possession of a firearm. Jenifer stated she was afraid of Talo,

but she did not want to file a police report.

The Second Supplemental Probation Report further

provided that on September 30, 2019, Kekauoha left Jenifer a

voicemail, and on October 1, 2019, Jenifer spoke with Kekauoha

over the phone, Jenifer confirmed that Talo had a firearm, which

Jenifer believed to be a shotgun, that it was wrapped in a

"lavalava," and Talo had put it in Jenifer's closet. Jenifer had

also reported that Talo had ammunition in his vehicle. The

report stated that Jenifer and one of her children met with

4 Kekauoha testified that she was "the supervisor for the section that is supervising the defendant, as well as the supervisor for the search unit with adult client services branch."

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probation officers and confirmed that the firearm continued to be

in the residence and that ammunition was in Talo's vehicle. The

report also provided that the warrantless search was executed on

December 6, 2019, and at the conclusion of the search, HPD

notified Kekauoha that they would arrest Talo on the probation

revocation warrant and gun-related offenses.

At a January 17, 2020 hearing, the Circuit Court denied

the Motion to Revoke Probation to the extent that it was premised

on non-firearm violations and permitted Talo to file a

supplemental memorandum in support of the Motion to Suppress

Evidence.

Talo's supplemental memorandum primarily argued that

the warrantless search of Talo's residence on December 6, 2019,

"was unreasonable notwithstanding the existence of an objectively

valid probationary purpose, because the avowed purpose was in

reality a subterfuge designed to facilitate a criminal

investigation."5 In response, the State argued that the Adult

Probation Department (APD) had reasonable suspicion based on

specific and articulable facts that Talo possessed a firearm and

ammunition. Talo filed a reply memorandum, contending that the

warrantless search was conducted for an improper purpose based on

the APD and HPD "work[ing] in concert to actively create a new

case against [Talo] by undertaking a warrantless search[.]"

5 Talo cited State v. Fields, 67 Haw. 268, 686 P.2d 1379 (1984); Commonwealth v. Brown, 361 A.2d 846 (Pa. Super. Ct. 1976); Propios, 76 Hawai #i at 474, 879 P.2d at 1057.

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On January 24, 28, and February 25, 2020, the Circuit

Court held further hearings on the State's Motion to Revoke

Probation and Talo's Motion to Suppress Evidence. The Circuit

Court considered testimony from Detective Lacuata, search and

seizure assistant supervisor Brook Mamizuka (Mamizuka), Kekauoha,

Talo's and Jenifer's son (Son), and Jenifer. At the February 25,

2020 hearing, the Circuit Court orally denied Talo's Motion to

Suppress Evidence. On March 12, 2020, the Circuit Court entered

Findings of Fact, Conclusions of Law, and Order Denying

Defendant's Oral Motion to Suppress Evidence (Order Denying

Motion to Suppress Evidence).

On June 18, 2020, the Circuit Court held a further

hearing on the State's Motion to Revoke Probation and granted the

State's motion based on the firearm and ammunition violations;

the court sentenced Talo to a term of imprisonment of five years.

On June 18, 2020, the Circuit Court entered the Resentencing

Order, sentencing Talo to a term of imprisonment for five years

with credit for time served.

On July 16, 2020, Talo timely filed a notice of appeal.

B. Events Prior to the Warrantless Search

PO Naito testified that he met with Talo on June 29,

2017, to review the temporary probation terms and conditions. PO

Naito stated that he reviewed the official probation terms and

conditions one by one with Talo. PO Naito testified that he

explained the penalty for violating any of the probation

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conditions and that Talo appeared to understand the terms and

conditions. PO Naito signed the form and witnessed Talo signing

and dating the form.

Jenifer testified that she had been married to Talo for

about three years and in a relationship with him for over sixteen

years. Jenifer also testified that she had four biological

children with Talo and two other children that Talo helped raise.

The children were ages 9, 11, 12, 13, 16, and 19 at the time. In

June 2019 and July 2019, Jenifer had filed two separate Petitions

for an Order for Protection against Talo, requesting a Temporary

Restraining Order (TRO) stemming from, inter alia, Talo stealing

Jenifer's airport badge and federal badge, and threatening to

kill her.6 Jenifer's June 2019 petition provided that Talo had

access to firearms and "has friends that have weapons."

Jenifer's July 2019 petition also alleged that Talo "may

own/possess/have access to a weapon," and that "[h]e has family

and friends who has [sic] weapons." Jenifer testified that she

filed them because "for the past year we've been having issues,

marital issues and marital problems, and it's been getting

difficult, so I had to file them on behalf of my –- in order to

save my job." Jenifer testified that she was concerned about

Talo stealing her badges.

6 The Order for Protection provided that Jenifer worked at the Transportation Security Administration (TSA) airport.

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Jenifer testified that on September 30, 2019, Jenifer

and Son went to the Wahiawa Police Station to ask "what would

happen if my husband, who was on parole, had a [sic] illegal

firearm?" Jenifer said that she asked HPD Sgt. Phillips if

Jenifer would be held responsible for an illegal firearm in her

residence and that her children had mentioned the firearm.

However, Jenifer maintained that it was a hypothetical question,

and at that time, she had not seen the illegal firearm or

ammunition. Jenifer testified that she did not make a report.

Jenifer further testified that PO Naito called her and directed

her to Kekauoha to discuss the issue about the firearm and

ammunition.

Following Jenifer's visit to the police station, Sgt.

Phillips contacted Kekauoha. Kekauoha testified that she asked

Sgt. Phillips to file a police report to document the visit and

Sgt. Phillips completed a report.

Kekauoha testified that she first spoke with Jenifer

over the phone on October 1, 2019, and Jenifer stated that Talo

was in possession of a firearm, which Jenifer believed was a

shotgun. Jenifer testified that she told Kekauoha that she

believed Talo had a firearm in her room at that time. Jenifer

further testified that she told Kekauoha that four of her younger

children saw the firearm in the house, and described it as "one

that they see on top their video games." Jenifer also testified

that Son told her that he had seen a gun in the house, but he did

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not describe it. However, after October, Jenifer testified that

there were "very long pauses in between" speaking to Kekauoha

because Jenifer did not want to talk anymore. Jenifer testified

that she never saw a gun in the house. Kekauoha testified that

she began a probation violation investigation on October 1, 2019,

after she spoke with Sgt. Phillips and Jenifer. Mamizuka

testified that at some point after this, they were looking at

"possibly doing a warrantless search."

Mamizuka testified that she met with Jenifer and Son at

the probation office to verify the facts related to the firearm

and the ammunition. Mamizuka further testified that: A. Jenifer had described that there was a firearm in her household. It was in their bedroom closet. Um, it was behind a purple suitcase and that she wanted it removed from -- her household and that -- he had been previously playing with it in front of minors.

Um -- there also was concern -- she had described to us that -- his temperament, she quite -- she couldn't really understand because he would go from zero to a hundred in his temperament. Zero being, you know, very calm, and then a hundred where it's explosive. That he had broken their door in their apartment.

Um -- she also described that there was ammunition that was -- in a ziplock bag in the trunk of his car -- and that it was in a -- duffle bag.

And -- she also kinda described -- I guess their interaction and their relationship -- with one another and I guess that was very concerning to me. She had described that -- I -- I believe it was a couple days before -- she had tried to get ready for work and she had put on unifor -- her TSA uniform and he had cut, um -- her uniform up. He had cut the breast pockets and the inseam of her uniforms.

Um -- there also was -- some text messaging that -- that -- Talo's son had shown us and -- you know, threatening that the -- that Talo would be taking the children away from her.

Q And you described -- well, you said that [Jenifer] said that she had seen ammunition in a ziplock,

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stored in a ziplock and then stored in a duffle bag then stored in the trunk of [Talo]'s car?

A Yes.

Q Was she able to actually describe how that ammunition looked?

A She did. She said it was red.

Mamizuka testified that she felt Jenifer's life was in

danger after the November 19, 2019 meeting. However, she did not

immediately call the police because the "focus was to remove the

firearm like Miss -– like Jenifer had asked us to do." Mamizuka

testified that, in preparation for the warrantless search,

Kekauoha began "the case agent portion, which is a lot of the

footwork and the paperwork." Mamizuka testified that she came in

"when we're getting or preparing for the search and the

debriefing with the staff," but this was not intertwined with

HPD. Mamizuka explained that the staff briefing involved

teaching the probation office staff how to conduct the search and

what their roles would be in the search. Mamizuka also stated: So in this case we had explained that myself and two other probation officers would be transporting [Talo]. So we would be doing it in a State car. We would go through that protocol of how to do that and -- because we were doing it purely -- three of us, the three probation officers, HPD was not in -- they had told us they would not get involved in any of the -- transport. They were primarily there -- for security purposes.

Then we would describe to -- the probation officers that are going along with us how we would be searching, common areas, and only areas that are occupied by [Talo].

Q Okay. And at this point during the briefing process, is there any intertwinement between probation's work and HPD?

A No. We're not making contact with him [sic] yet.

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Q -- you had said that HPD actually said they would not partic -– what did you say that they would not do, HPD said they would -- they declined? What --

A Transportation. They would not give [Talo] any transportation to -- to his home. We would have to do all of the transportation. So from the Circuit Court office to Wahiawa.

Kekauoha testified that she believed reasonable

suspicion of a probation violation existed because she had

information from Sgt. Phillips based on Jenifer's visit to the

Wahiawa Police Station, the two Petition[s] for an Order for

Protection, an October 1, 2019 phone call, and the November 19,

2019 meeting. In addition, Kekauoha testified:

Q Describe Jenifer -– just I guess what did Jenifer say about the firearm and ammunition at that November 19th meeting?

A She confirmed that the firearm was, um -- in the residence, in the bedroom, in a closet.

Q So as of November 19th, 2019, Jenifer said, yes, the firearm is still there.

Q And how -- did you ever speak to Jenifer between -- about the gun and ammunition between November 19th and the December 6th, 2019 search?

A Not directly.

Q Did you speak to her indirectly, like voicemails --

A We --

Q -– or anything?

A -- we were playing phone tags.

Q Okay. Why did it take -- I guess how -- why did it take so long between -- if you first learned about the gun and firearm in mid-October, why did it take until December 6th to do the search?

A First of all, we had to confirm [Talo]'s residence. On the documents that we had in the probation,

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um -- file, he didn't put down his apartment number, and an initial letter was sent to him by [PO Naito].

And we -- based on what he -- [Talo] had written the last time he wrote down his address, there was no street number. So the initial appointment letter was sent to the Ehoeho Avenue address without the apartment number and that was returned and the postmark indicated that the address is insufficient.

So subsequent letters were sent, but [Talo] did not report for those appointments. And subsequently, I found out from Jenifer that they had lost the mailbox key. So until she was able to get a mailbox key, we couldn't get [Talo] into the office.

So he finally reported on I believe it was October 25th. When he first reported.

Q Okay. Did you receive a voicemail from Jenifer in December indicating whether or not she would be present at the December 6th search?

A I did. That was on -- that was on December the 3rd. Because I left her a voicemail message on that date, and then she left a voicemail message after that.

Kekauoha further testified that the purpose of the

warrantless search was to remove the firearm for public safety

purposes and for rehabilitative purposes because it was intended

to ensure Talo was "complying or following the terms and

conditions of probation."

C. The December 6, 2019 Warrantless Search

When Talo reported for his probation office appointment

on December 6, 2019, probation officers transported Talo back to

his residence in a state vehicle. Talo was not handcuffed or

under arrest at that time. PO Naito testified that he was a

member of the search team and arrived at Talo's residence

"between maybe 9 a.m., 9 to 10 a.m. on December 6," and HPD and

Son were at the residence. Approximately ten people were at

Talo's house at the time of the search, including five probation

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officers and five HPD officers. PO Naito testified that the

search started in the living room and only one bedroom was

searched. He also stated that Talo and HPD stayed in the living

room while the search was being conducted.

Mamizuka testified that she asked Talo where his room

was, and Talo told her that he slept in the living room, but his

clothes were in the room next to the living room. Subsequently,

Mamizuka found the gun in the bedroom where Talo told her his

clothes were located. Mamizuka stated that she lifted the

mattress and "between the mattress and the box spring was the

shotgun wrapped in a turquoise lavalava." Mamizuka stated that

she then saw the ammunition in a clothes hamper and only the

probation officers touched and looked for the firearm and

ammunition. Mamizuka testified the HPD officers were not near

the probation officers and were in the living room or outside,

but not inside the bedroom. Mamizuka further testified that the

probation staff searched Talo's car. Mamizuka testified that HPD

took the firearm and ammunition to store because probation was

not trained to handle those items. Mamizuka's testimony provided

that HPD arrested Talo, but probation staff did not "intertwine"

with HPD after December 6, 2019.

PO Naito stated that he left the Talo residence with

the other probation officers around 2 p.m., but that the SWAT

team was still at the residence. PO Naito also testified that

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the SWAT team was in the residence while the search was going on,

and once the gun was recovered, it was given to the SWAT team.

Detective Lacuata testified that on December 6, 2019,

he was assigned to a criminal case investigation of Talo

regarding illegal ownership of a firearm. However, he also

testified that he was instructed to halt any criminal

investigation stemming from the probation search arrest, and his

work on the case terminated, on December 6, 2019. Detective

Lacuata testified that his investigation was "pretty much

closed," but that he had yet to submit a closing report. He

testified that although his criminal investigation was halted,

his investigation then focused on confirming the probation

violation. Detective Lacuata had conducted an audio-recorded

interview with Jenifer and Son, but its purpose was to confirm

certain information related to the probation violation.

Detective Lacuata also called Son on December 7, 2019,

but the call was to provide him with instructions to pick up Talo

from the police station. He also spoke with Talo on December 7,

2019, to go over an HPD-81 form. Detective Lacuata testified

that this was part of his administrative report for closing, and

that even if had Talo confessed, there would still have been no

criminal case against Talo. On January 9, 2020, Detective

Lacuata informed Kekauoha that the investigation was still

pending, but only because certain results such as test-fires and

fingerprint analyses were still pending. The State represented

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on the record that Talo would not be subject to criminal

prosecution stemming from the firearm and ammunition seized in

the December 6, 2019 search.

II. POINTS OF ERROR

Talo raises two points of error on appeal, challenging

Findings of Facts (FOFs) 1, 2, 21, 23, 24, 25, 28, 32, 33, 34,

35, 36, 37, and 38, and Conclusions of Law (COLs) 5 and 6, and

arguing that the Circuit Court: (1) erred in denying Talo's

Motion to Suppress Evidence; and (2) abused its discretion in

sentencing Talo to an open term of imprisonment of five years.

III. APPLICABLE STANDARDS OF REVIEW

Appellate courts "review the circuit court's ruling on

a motion to suppress de novo to determine whether the ruling was

'right' or 'wrong.'" State v. Keanaaina, SCWC-XX-XXXXXXX, 2022

WL 854476, at *5 (Haw. Mar. 22, 2022) (quoting State v. Kauhi, 86

Hawai#i 195, 197, 948 P.2d 1036, 1038 (1997)).

"[A] sentencing judge generally has broad discretion in

imposing a sentence." State v. Koch, 107 Hawai#i 215, 219, 112

P.3d 69, 73 (2005) (citing State v. Gaylord, 78 Hawai#i 127, 143-

44, 890 P.2d 1167, 1183-84 (1995)). "The applicable standard of

review for sentencing or resentencing matters is whether the

court committed plain and manifest abuse of discretion in its

decision." Id. at 219-20, 112 P.3d at 73-74 (citation omitted).

"[W]hether a particular search is improper 'is a

question of fact subject to the clearly erroneous standard of

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review.'" Propios, 76 Hawai#i at 481, 879 P.2d at 1064 (quoting

U.S. v. Consuelo-Gonzalez, 521 F.2d 259, 267 (9th Cir. 1975)).

An appellate court reviews a "circuit court's findings of fact

under a 'clearly erroneous standard.'" State v. Rodrigues, 145

Hawai#i 487, 494, 454 P.3d 428, 435 (2019). A trial court's FOF

"is clearly erroneous when (1) the record lacks substantial

evidence to support the finding, or (2) despite substantial

evidence in support of the finding, the appellate court is

nonetheless left with a definite and firm conviction that a

mistake has been made." State v. Quiday, 141 Hawai#i 116, 121,

405 P.3d 552, 557 (2017) (quoting State v. Eleneki, 92 Hawai#i

562, 564, 993 P.2d 1191, 1193 (2000)). However, "an appellate

court will not pass issues dependent upon credibility of

witnesses and the weight of the evidence; this is the province of

the trial judge." State v. Hicks, 113 Hawai#i 60, 70, 148 P.3d

493, 503 (2006) (quoting State v. St. Clair, 101 Hawai#i 280,

287, 67 P.3d 779, 786 (2003)).

Conclusions of law are reviewed de novo. Rodrigues,

145 Hawai#i at 494, 454 P.3d at 435. "A conclusion of law that

is supported by the trial court's findings of fact and that

reflects an application of the correct rule of law will not be

overturned." Quiday, 141 Hawai#i at 122, 405 P.3d at 558

(citation omitted).

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IV. DISCUSSION

A. The Motion to Suppress Evidence

Talo challenges various FOFs and argues that the

Circuit Court erred in denying Talo's Motion to Suppress Evidence

because the warrantless search of Talo's residence was

unreasonable.

The Hawai#i Supreme Court has described a warrantless

search as "a creature of judicial ingenuity presumably founded on

the discretion vested in the sentencing court to saddle a

probationer with any condition 'reasonably related to [his]

rehabilitation . . . and not unduly restrictive of his liberty or

incompatible with his freedom or conscience.'" Fields, 67 Haw.

at 276, 686 P.2d at 1386 (citation omitted). Thus, a probation

condition is valid "to the extent that it may serve the ends of

rehabilitation." Id. at 277-78, 686 P.2d at 1386-87. A

probation officer's special role as a "social therapist in an

authoritative setting" permits the probation officer to conduct a

warrantless search of the probationer's person, property, and

place of residence because it "serves a legitimate correctional

purpose" and "may contribute to [] rehabilitation." Id. at 280,

686 P.2d at 1388-89 (citations omitted).

In Fields, the supreme court explained that the

"desired rehabilitation" of a probationer depends upon the

probation officer's "ability to gain 'a thorough understanding of

the probationer and his environment, including his personal

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habits, his relationships with other persons, and what he is

doing, both at home and outside it.'" Id. at 280, 686 P.2d at

1389 (brackets omitted) (quoting Latta v. Fitzharris, 521 F.2d

246, 249 (9th Cir. 1975). However, a warrantless search must

nevertheless be reasonable, such that it is supported by a

"reasonable suspicion supportable by specific and articulable

facts." Id. at 283, 686 P.2d at 1390.

The supreme court has determined that: Although probationers are subject to restrictions to which the average person is not subjected, a probationer still maintains the right to a significant degree of privacy. In State v. Fields, 67 Haw. 268, 686 P.2d 1379 (1984), this court held that a probationer, like a parolee, may be subjected to warrantless searches by her probation officer. Id. at 279-81, 686 P.2d at 1388-89. The warrantless search must be reasonable, however, even if carried out as a condition of probation. To be reasonable, the facts of each case must show that the search was justified by a reasonable suspicion supported by specific and articulable facts that probation was being violated. Id. at 281, 283, 686 P.2d at 1389, 1390.

Because this court has determined that reasonable warrantless searches of probationers are constitutional, the only question remaining is whether the search of [defendant's] residence was reasonable. The general rule is that

[warrantless] search[es] carr[y] an initial presumption of unreasonableness. To overcome this presumption, the State must show that the facts of the case justified the . . . search[] without a warrant and that the search itself was no broader than necessary to satisfy the need which legitimized departure from the warrant requirement in the first place.

State v. Kaluna, 55 Haw. 361, 363, 520 P.2d 51, 55 (1974) (citations omitted and emphasis added).

Propios, 76 Hawai#i at 477, 879 P.2d at 1060.

Here, as in Propios, "the question of reasonableness

centers on the participation of the police in the search." Id.

Generally, "police participation in a warrantless residential

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search of a parolee has been deemed reasonable so long as the

underlying search was conducted for a supervisory purpose, and

not as a subterfuge for subsequent criminal prosecution." Id. at

478, 879 P.2d at 1061. Accordingly, police officers "may

participate in [a warrantless search] provided that the search is

for legitimate probationary purposes and not designed as a ruse

to facilitate the gathering of evidence for prosecution of new

criminal acts." Id. at 485, 879 P.2d at 1068. Thus, "a

warrantless probationary search premised upon an initially valid

rehabilitative purpose may nonetheless become tainted by

subsequent abuse of that privilege." Id. at 480, 879 P.2d at

1063.

In Propios, the search of a probationer's residence was

unreasonable because "notwithstanding the existence of an

objectively valid probationary purpose, . . . the avowed purpose

was in reality a subterfuge designed to facilitate a criminal

investigation." Id. The supreme court noted that the

prosecution had demonstrated specific and articulable facts

giving rise to a reasonable suspicion sufficient to support a

warrantless search because the probationer admitted to her

probation officer that she had used illegal drugs and her

boyfriend was a drug dealer. Id. The supreme court also

determined that the probation officers acted reasonably when they

contacted police "to obtain protection and assistance" based on

the potential for danger. Id.

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The supreme court nevertheless concluded that the

warrantless search was unreasonable because the "police 'took

over' the search nominally conducted by the APD officers in order

to gather evidence for use in a criminal prosecution." Id. at

480-481, 879 P.2d at 1063-64. "The search was improper not

because of mere police participation, but because it was actuated

by an intent to pursue future criminal prosecution rather than a

desire to advance otherwise valid probationary purposes." Id. at

487, 879 P.2d at 1070. The testimony in Propios revealed that a

police officer was given permission to go ahead with a

warrantless search, and the police played a "more active part in

the search." Id. at 482, 879 P.2d at 1065. Notably, the

testimony in Propios revealed that a co-defendant led a police

officer to a bedroom alone where drugs were found, and the

supreme court stated that "the apparent fact that [a police

officer] and [co-defendant] were alone in the bedroom for

unexplained reasons raises a question as to whether [the police

officer] somehow influenced [co-defendant's] 'voluntary'

revelation." Id. at 485, 879 P.2d at 1068. Further, in Propios

a police officer confirmed that he accompanied the co-defendant

into the co-defendant's bedroom to conduct an investigation from

a police standpoint. Id. Thus, the supreme court concluded that

probation officers and police officers "worked in concert to

actively create a new case against" the defendant. Id. at 487,

879 P.2d at 1070. For these reasons, the supreme court affirmed

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the order granting the defendant's motion to suppress the

evidence obtained as a result of the warrantless search. Id.

Here, unlike in Propios, there is no indication that

the HPD and APD worked in concert together to gather evidence for

a new criminal prosecution, and HPD did not "take over" the

search at any time. Both Mamizuka and Kekauoha testified that

the purpose of the warrantless search was to investigate a

probation violation involving possession of a firearm and

ammunition. APD planned and executed the search while HPD

provided security and to recover and store any firearms or

ammunition. HPD declined to even provide transportation for

Talo. Mamizuka and Kekauoha, not HPD, prepared the necessary

paperwork and the logistics of the search. Although a criminal

investigation was briefly initiated against Talo, Detective

Lacuata testified that his investigation started and ended on

December 6, 2019.

Based on Detective Lacuata's testimony, as well as the

other evidence presented at the hearings on the Motion to

Suppress Evidence and Motion to Revoke Probation, the Circuit

Court found and concluded that "[t]he search was not a subterfuge

or a ruse for criminal prosecution or an HPD investigation."

On appeal, Talo does not challenge the Circuit Court's

FOF 30 determining that "[t]he probation officers had specific

and articulable facts to support reasonable suspicion to conduct

a warrantless search of [Talo's] home and car on December 6,

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2019." Nor does Talo challenge FOF 31 providing that "[t]he

search was constitutional, supported by reasonable suspicion and

the specific and articulable facts set forth above." Instead,

Talo challenges FOF 1 as clearly erroneous purportedly to the

extent that the Circuit Court found the testimonies credible.

FOF 1 provides: 1. The Court heard testimony from [PO Naito], Probation Supervisor [Mamizuka], and Probation Supervisor [Kekauoha]. The Court found their testimonies to be credible.

However, "it is well-settled that an appellate court

will not pass upon issues dependent upon the credibility of

witnesses and the weight of the evidence; this is the province of

the trial judge." Propios, 76 Hawai#i at 482, 879 P.2d at 1065

(citation and internal quotation marks omitted). FOF 1 is not

clearly erroneous.

Talo also challenges FOF 2, which provides: 2. Probation Supervisors Mamizuka and Kekauoha are specifically the heads of the [APD's] Search Unit, and they investigated, planned and executed the warrantless search at issue herein.

Talo argues that FOF 2 is clearly erroneous because the

evidence demonstrated that HPD was involved in the search,

including a post-search investigation conducted by Detective

Lacuata. This argument is without merit. Kekauoha testified

that she was a probation supervisor "for the section that is

supervising [Talo], as well as the supervisor for the search unit

with adult client services branch." Mamizuka testified that she

was a PSI intake section administrator as well as "the search and

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seizure assistant supervisor." Mamizuka also testified that she

and Kekauoha were "primarily assigned to do the warrantless

search and seizure[.]" Jenifer testified that Kekauoha was in

charge of probation. Mamizuka testified that Kekauoha "does the

case agent portion, which is a lot of the footwork and the

paperwork." Mamizuka also testified that she came in to

"prepar[e] for the search and the debriefing with the staff" and

that this work was not intertwined with HPD in any way. Kekauoha

stated that she planned the warrantless search. Thus, the record

supports FOF 2, and it is not clearly erroneous.

Talo challenges FOFs 21, 23, 24 and 25, which state: 21. There was no unreasonable delay by probation officers between October and November, 2019, leading up to the December 6, 2019 search.

23. During the time frame of October and November, the probation officers also needed to have [Talo] confirm his exact address by providing the apartment number for the #Eho#eho Avenue residence.

24. During the October - November, 2019 timeframe, [Talo] missed the October 10 and October 17 probation appointments. He came in on October 25, 2019 for his appointment. At that time, he wrote his exact address and probation officers were able to confirm the apartment number.

25. [Talo] reported again on November 8, 2019, and the probation officer reconfirmed that [Talo]'s address was the same apartment - 224.

Talo also challenges FOFs 28, 32, and 33: 28. The time frame to finalize the planning and execution of the search - approximately seventeen days - was not unreasonable under these specific factual circumstances. The probation officers were methodical in their follow-up investigation.

32. The search was properly conducted for probation purposes, for public safety, and the rehabilitative goals of probation.

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33. The search was not a subterfuge or a ruse for criminal prosecution or an HPD investigation.

Talo argues that the delay between September 30, 2019,

and December 6, 2019, was unreasonable. Talo submits that "[i]f

the purpose of the search was truly to enforce terms and

conditions of probation and to advance the goal of

rehabilitation, the search could have been conducted much

sooner." Talo further argues that "[e]ven if it was necessary

for Talo to personally confirm his address, after he did on

October 25, 2019, there was no justification for delaying the

search until December 6, 2019." Talo contends that these FOFs

are clearly erroneous because "the investigation by the probation

officers was inordinately and unnecessarily long because the

search was not conducted for a probationary purpose but as a ruse

to conduct a warrantless search for criminal charges."

However, Talo does not challenge the Circuit Court's

FOF 22 or FOF 29, which provide: 22. Probation Supervisor Kekauoha had much difficulty maintaining consistent contact with [Jenifer] during the period of October and November. Probation Supervisor described her efforts as having "phone tag" with [Jenifer].

29. The steps they took and the follow-up they did from the time of the first report of a possible firearm possession by [Sgt. Phillips] on September 30, 2019 up to the search that was executed on December 6, 2019 were reasonable and appropriate under the circumstances.

In addition, the record includes, inter alia, the

following exchange between Talo's counsel and Kekauoha: Q Okay. So on direct you were asked, you know, why did it take so long for you guys to do a search of [Talo]'s residence when you initially found out about [Talo]

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possibly possessing a firearm on September 30th. Do you remember your answer?

A What I needed to do is I needed to make sure that I had enough information and also I wanted to be sure that we could confirm [Talo]'s address. So he needed to indicate that apartment number. And I needed -– I wanted to talk to Jenifer in person.

Kekauoha testified that Talo did not confirm his full

address until October 25th. The record supports that Talo failed

to report to his probation officer on October 10 and October 17,

2019, but that he reported on October 25, 2019, and confirmed his

address at that time. Additionally, Mamizuka testified that she

met with Jenifer and Son in person at the probation office on

November 19, 2019. Mamizuka testified that the purpose of that

meeting was "to verify any facts that [Jenifer] might be -–

discussing about the firearm or the ammunition." Mamizuka stated

that during this November 19, 2019 meeting, Jenifer described the

firearm in her household, the location of the firearm, and

concerns about Talo's temperament. Mamizuka testified that

Jenifer "looked physically okay," but she felt Jenifer's life was

in danger after the November 19, 2019 meeting. Mamizuka did not

contact the police or notify anyone about her concerns regarding

Jenifer's safety because the focus was removing the firearm and

ammunition. Mamizuka noted that it "might take a month, a month

and a half" to coordinate and prepare for a warrantless search of

a home where the subject is a gun.

We conclude that FOFs 21, 23, 24, 25, and 28 are

supported by substantial evidence in the record, including

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unchallenged FOFs 22 and 29, and the Circuit Court did not

clearly err in finding that the length of time it took to perform

the warrantless search was not unreasonable.

Regarding FOFs 32 and 33, Mamizuka testified that "the

focus was just removing the firearm and the ammunition from the

household" and on investigating a probation violation. Kekauoha

also testified that the purpose of the warrantless search was to

address the suspected probation violation, to recover evidence of

a probation violation, and to remove the firearm for public

safety reasons. Kekauoha testified that the warrantless search

was rehabilitative because it was intended to ensure Talo was

complying with the terms and conditions of probation, and

Kekauoha had received information that Talo was violating the

terms and conditions of his probation.

Mamizuka also testified that HPD was involved in the

warrantless search for only security purposes, and HPD told APD

that they would not get involved in transporting Talo in advance

of the search. Mamizuka testified that, in addition to providing

security, HPD's presence was necessary to assist in removing and

storing any recovered ammunition or firearm because the probation

officers were not trained to handle firearms and the probation

office had no room to store ammunition or firearms. Mamizuka

testified that only probation officers conducted the search for

the firearm and ammunition, and that HPD officers did not

participate in the search and were not near the probation

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officers during the warrantless search of the bedroom. She also

testified that Talo was arrested by HPD because probation

officers rely on sheriffs and the police to execute their arrests

on warrants. In addition, Detective Lacuata testified that there

would be no criminal prosecution against Talo, and the case was

not conferred to the prosecutor's office any time on or after

December 6, 2019. We conclude that, notwithstanding some

evidence that could support an alternative analysis, evidence of

sufficient quality and probative value supports the Circuit

Court's findings that the purpose of the warrantless search was

for probation purposes and the search was not a ruse for criminal

prosecution. Therefore, FOFs 32 and 33 are not clearly

erroneous.

Talo further challenges the following FOFs: 34. [Detective Lacuata] did not complete his criminal investigation and such investigation was stopped when he was told that there would be no conferral with the prosecutor's office. "No conferral" meant that the case was not going to be prosecuted by the prosecutor's office.

35. During the course of these proceedings, the State, through the prosecutor in this case, has stated on record that [Talo] will not be subject to criminal prosecution based on the conduct that is the basis for this probation violation. Therefore, the State is judicially estopped from subjecting [Talo] to any future firearm or ammunition possession prosecution in the state court.

36. The purpose of the search defined by Probation was to investigate the probation violation.

37. The evidence shows that the investigation leading up to the search was conducted by the [APD]. The debriefing of probation staff participating in the search was conducted by the [APD]. The parameters and explanation of the search were crafted by the [APD]. On the day of the search, the search was directed and executed by probation supervisors and officers, not

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HPD. The discovery and the photographing of the evidence was also conducted by probation and not HPD.

38. HPD's presence was requested by the [APD] for security purposes only.

Talo argues that these FOFs "are clearly erroneous to

the extent that they find that the primary purpose of the

investigation was probationary not to conduct a warrantless

search for criminal prosecution." We conclude that these FOFs

are not clearly erroneous because there is substantial evidence

in the record to support them. Detective Lacuata testified that

Talo was in custody following his arrest after the execution of

the warrantless probation search, but Talo's case was "not

conferred" to the prosecutor's office. In other words, Talo was

not going to be charged with new violations. Detective Lacuata

testified that on December 6, 2019, he was instructed to stop any

further investigation of potential criminal prosecution stemming

from the warrantless search of Talo's residence. While Detective

Lacuata had "started a little bit of interviewing," including

recorded interviews with Jenifer and Son, Detective Lacuata

explained that the interviews were to establish that the

recovered firearms were operational and whether the ammunition

was real.7 Detective Lacuata testified that he was assigned a

7 Detective Lacuata also testified that he ran a serial number check from the serial number of the firearm, and that Talo was not the owner of the recovered firearm. Detective Lacuata further testified that he called Son on December 7, 2019, to explain how to pick up Talo from the police station, and not to interview him.

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criminal case regarding illegal ownership of a firearm but that

his investigation began and ended on December 6, 2019.8

Further, the State represented multiple times that Talo

would not be subject to criminal prosecution stemming from the

warrantless search. As previously discussed, both Mamizuka and

Kekauoha testified that the purpose of the search was to

investigate a probation violation. The testimony included that

Kekauoha initiated the warrantless search. Kekauoha handled the

paperwork, and Mamizuka came in to prepare for the search and

debrief with the staff. There was no intertwinement or contact

with HPD. Only the probation officers would be transporting Talo

to the search, and HPD would be involved in the warrantless

search only for security purposes. The search unit was made up

of only probation officers, and HPD officers were "on the outside

or in the living room" while the probation officers were

conducting the search. Probation officers Jessica Ayers and Greg

Uwono discovered the ammunition, and Greg Uwono, not HPD,

searched Talo. Mamizuka discovered the firearm "between the

mattress and the box spring" wrapped in a lavalava. Probation

officers recovered men's shorts and a man's shirt as evidence.

Mamizuka processed the evidence and prepared and signed the

evidence report, although the firearm and ammunition were handled

by HPD after discovery. Kekauoha also prepared the warrantless

8 Detective Lacuata testified that he called Talo on December 7, 2019, to administratively close the case, including informing Talo of certain constitutional rights.

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search report, which was submitted to HPD, and which included a

statement of receipt of property, a diagram of Talo's residence,

a diagram of the bedroom, an evidence report, and a photographic

report. Thus, the Circuit Court did not clearly err in adopting

these FOFs.

Lastly, Talo challenged COLs 5 and 6, providing: 5. The search in this case was not a subterfuge nor a cover-up for a criminal investigation by the police. No criminal investigation based on the firearm and ammunition recovery has been completed, and no prosecution will be brought in this case.

6. Under HRS § 706-624(2) and § 706-606(2), discretionary probation conditions may be imposed if they are reasonably related and necessary to the HRS § 706-606 sentencing factors. In this case, the warrantless search was properly conducted for legitimate probation purposes, for protection of the public, to deter future criminal conduct, and to further the rehabilitative goals of probation.

Talo argues that these COLs are wrong because "the true

purpose of the search in this case was to conduct a warrantless

search for purposes of criminal prosecution, not probationary

purposes. The fact that the prosecution was ultimately halted

did not change the initial character of the search."

"The purpose of the search, not the physical presence

of a parole agent, is the vital element." Propios, 76 Hawai#i at

480, 879 P.2d at 1063. Here, the Circuit Court's findings and

the supporting testimony established that the purpose of the

search was to recover evidence of a probation violation, to

remove the firearm and ammunition from the residence, to secure

the firearm and ammunition for the safety of the public, as well

as for the rehabilitative purpose of investigating compliance

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with the terms and conditions of probation. Talo does not point

to any place in the record where, prior to the warrantless search

on December 6, 2019, HPD had any meaningful involvement.

As discussed in Propios, it is reasonable for police to

"aid and protect[]" probation officers during a warrantless

search. 76 Hawai#i at 480, 879 P.2d at 1063. The record in this

case is consistent with that proposition.

In Fields, the supreme court found "no difficulty in

finding the necessary connection between such searches and the

rehabilitation" of a probationer where the probation officer had

been "expressly authorized" to search for illegal drugs and the

probationer had a "known proclivity" for illicit drugs. Fields,

67 Haw. at 280, 686 P.2d at 1389. Here, Talo was prohibited from

possessing or owning any firearms or ammunition, and was fully

informed of that prohibition. Kekauoha received information that

Talo possessed a firearm and ammunition. Based on that

information, probation officers searched Talo's residence.

We conclude that COLs 5 and 6 are not wrong.

B. Talo's Resentencing

Talo also argues – assuming arguendo, that the Circuit

Court did not err in denying Talo's Motion to Suppress Evidence –

that the Circuit Court abused its discretion in re-sentencing

Talo to an open five-year term of incarceration. Talo contends

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that based on the factors set forth in HRS §§ 706-606 (2014)9 and

706-621 (2014)10, the Circuit Court abused its discretion in

9 HRS § 706-606 provides:

§ 706-606 Factors to be considered in imposing a sentence. The court, in determining the particular sentence to be imposed, shall consider:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant;

(2) The need for the sentence imposed:

(a) To reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense; (b) To afford adequate deterrence to criminal conduct; (c) To protect the public from further crimes of the defendant; and (d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) The kinds of sentences available; and

(4) The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. 10 HRS § 706-621 provides:

§ 706-621 Factors to be considered in imposing a term of probation. The court, in determining whether to impose a term of probation, shall consider:

(1) The factors set forth in section 706-606 to the extent that they are applicable;

(2) The following factors, to be accorded weight in favor of withholding a sentence of imprisonment:

(a) The defendant's criminal conduct neither caused nor threatened serious harm; (b) The defendant acted under a strong provocation; (c) There were substantial grounds tending to excuse or justify the defendant's criminal conduct, though failing to establish a defense; (d) The victim of the defendant's criminal conduct induced or facilitated its (continued...)

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sentencing Talo to a five-year term of incarceration instead of

re-sentencing him to probation. Talo points to his argument

before the Circuit Court, including that Talo had not been

arrested since he was put on probation in 2017, his character and

attitude supported probation, his help in raising the six

children allowed his wife to pursue a career and she would suffer

from his going back to prison, and Talo was not a danger to the

community or his family.

The supreme court has explained that "[t]he weight to

be given the factors set forth in HRS § 706-606 in imposing

sentence is a matter generally left to the discretion of the

sentencing court, taking into consideration the circumstances of

each case." State v. Kong, 131 Hawai#i 94, 101, 315 P.3d 720,

727 (2013) (citation omitted). A sentencing court "is not

required to articulate and explain its conclusions with respect

10 (...continued) commission; (e) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present crime; (f) The defendant's criminal conduct was the result of circumstances unlikely to recur; (g) The character and attitudes of the defendant indicate that the defendant is unlikely to commit another crime; (h) The defendant is particularly likely to respond affirmatively to a program of restitution or a probationary program or both; (i) The imprisonment of the defendant would entail excessive hardship to the defendant or the defendant's dependents; and (j) The expedited sentencing program set forth in section 706-606.3, if the defendant has qualified for that sentencing program.

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to every factor listed in HRS § 706-606. Rather, it is presumed

that a sentencing court will have considered all factors before

imposing concurrent or consecutive terms of imprisonment under

HRS § 706-606." Lewi v. State, 145 Hawai#i 333, 350-51, 452 P.3d

330, 347-48 (2019) (citation, footnote, and internal quotation

marks omitted). In considering whether to impose a sentence of

probation pursuant to HRS § 706-621, a sentencing court is only

required to consider the HRS § 706-606 factors that are

applicable. State v. Rauch, 94 Hawai#i 315, 328, 13 P.3d 324,

337 (2000).

Here, the record reflects that the Circuit Court

properly considered the factors in HRS § 706-621 and HRS § 706-

606 when re-sentencing Talo, including the nature and

circumstances of the offense and Talo's history and

characteristics. The State noted public safety concerns, as well

as how Talo's actions affected his family.

When re-sentencing Talo, the Circuit Court explained: In imposing a sentence and resentencing, the court has to follow the criteria, and the court is guided by criteria in these two statutes: 706-621, that requires that the court to weigh and consider reasons witholding sentence of imprisonment versus imposing a sentencing of imprisonment, and I also have to weigh the general sentencing factors under 706-606.

These factors include that the court has to look at the nature and circumstance of the offense and the history and the characteristics of the defendant. When I look at those factors and I look at the underlying offense, which is assault in the second degree, it was a very violent assault. And the court's determination is that this underlying offense, while there was compliance on probation, there was a material and inexcusable violation of probation of being in possession of a shotgun and ammunition.

38 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

[T]his probation violation and the court's determination is that the nature and circumstances of this particular probation violation are serious and concerning. And while [Talo] did comply with the correctional treatment ordered by probation, the court finds that [Talo's] character and attitude as evidenced by the nature of these particular violations, which include the illegal possession of a firearm and ammunition, show an egregious disregard for the law and court orders. And the nature of this probation violation in combination with the felony assault conviction do militate in favor of a prison term.

The court cannot conclude that [Talo] is unlikely to commit another crime where the probation violation conduct would constitute two Class B felonies if they had been charged. The sentence must reflect the seriousness of the offenses and the probation violation.

We conclude that the record reflects that the Circuit

Court adequately considered the factors in HRS §§ 706-606 and

706-621, and the Circuit Court did not abuse its discretion in

re-sentencing Talo to a five-year term of imprisonment.

V. CONCLUSION

For these reasons, the Circuit Court's June 18, 2020

Resentencing Order is affirmed.

DATED: Honolulu, Hawai#i, May 20, 2022,

On the briefs: /s/ Katherine G. Leonard Presiding Judge Jon N. Ikenaga, Deputy Public Defender, /s/ Keith K. Hiraoka for Defendant-Appellant. Associate Judge

Steven S. Alm, /s/ James H. Ashford Prosecuting Attorney, Circuit Court Judge for Plaintiff-Appellee.