State v. Tsukiyama

525 P.2d 1099, 56 Haw. 8, 1974 Haw. LEXIS 79

• Court: Hawaii Supreme Court
• Decided: August 30, 1974
• Docket: NO. 5484
• Status: Published

Opinions

OPINION OF THE COURT BY

OGATA, J.

The defendant, Masao Lydell Tsukiyama, also known as Lydell Masao Tsukiyama, was convicted by a jury of three criminal offenses: (1) possession of harmful drug; (2) possession of narcotic drug; and (3) possession of a firearm by. a person convicted of certain crimes. Thereafter the trial court sentenced the defendant to imprisonment for ten years for possession of harmful drug, one year apiece for possession of narcotic drug and possession of firearms by a persop convicted of certain crimes, each of these sentences to be served concurrently. He now appeals and alleges for ground of reversal that the trial court erred in its refusal to grant his motion to suppress the evidence. For the reasons set forth herein, we affirm each of these convictions.

On December 29, 1972, at about 1:00 a.m., police officer Paul Kohler, while on routine patrol, came upon three parked vehicles along the mauka (north) side of North School Street in Honolulu, an area of the city comprised of a mixture of residences and miscellaneous business establishments. The officer, after noticing these three parked vehicles, saw numerous people standing by the western-most of such parked vehicles, which had its hood up or open, and which will be designated for convenience as vehicle 1. Likewise the vehicle parked behind vehicle 1 will be designated as vehicle 2, and the last parked vehicle will be designated as vehicle 3, which was a blue Comet. Officer Kohler recognized one of the persons among the group by vehicle 1 as Russell Johansen, a person known to Kohler as a “police character,” which term Kohler defined as a person who had been in jail for the commission of other crimes. In light of these circumstances, Kohler felt that he should investigate the cause of the congregation around vehicle 1. He informed central police communications that he was leaving his car for such an investigation and at the same time requested for assistance. Officer Kohler parked his car just west of vehicle 1; as he got out and approached vehicle 1, but before he reached that vehicle, he met the defendant who was walking towards the officer. The defendant then asked Officer Kohler for a flashlight. Defendant informed Officer Kohler that vehicle 1 was stalled. The officer then went back to his vehicle, got his flashlight and turned it over to the defendant, who then returned to vehicle 1. Officer Kohler followed the defendant to vehicle 1.

At about that time, other police officers began to arrive at the scene, pursuant to the call for police assistance by Officer Kohler. Officer Albert Kaalele was either the first or second officer to arrive, and he parked his vehicle behind vehicle 3, got out and walked towards vehicle 1. When he saw Officer Kohler safe and well among the group of people around vehicle 1, he started to walk back to his police vehicle, and just before he reached vehicle 3, he noticed that the person who had been seated on the driver’s seat of vehicle 3, at the time he walked towards vehicle 1, had disappeared. So he walked around the front of vehicle 3, and towards the driver’s side of that vehicle, when he noticed that the person who had been seated was now lying on the front seat of vehicle 3. Officer Kaalele continued to walk towards his vehicle, and after getting his flashlight from his vehicle, he returned to the passenger side of vehicle 3, opened the door and asked the person lying on the front seat if something might be wrong with him. This person was later identified as Anthony Oh Young. After Oh Young came out from the blue Comet, and as he stood outside, next to its front passenger door, Officer Kaalele. then asked Oh Young whose car it was, and he replied by pointing to the group of people around vehicle 1, and said it belongs to “one of the guys up here.”

Just then, the defendant, who had been with the group of people around vehicle 1, walked over towards Officer Kaalele, who at that time was conversing with Oh Young. Officer Kaalele asked the defendant if he knew to whom vehicle 3 belonged. Defendant responded “yes, that is mine.” Officer Kaalele had noticed a bicycle in the back of vehicle 3, so he asked the defendant whose bicycle was in the car, to which the defendant answered that it belongs to one of his sons. Officer Kaalele then asked the defendant if he had some kind of-identification and defendant said that it was in the glove compartment of his car. Officer Kaalele then asked the defendant “would you go and get it? ” Without any protest or objection, defendant then proceeded around the front of vehicle 3, to the driver’s side, followed by Officer Kaalele, and defendant opened the driver’s door. The defendant then entered the vehicle, leaned towards the glove compartment, and with his keys in his right hand, he opened the glove compartment about two or three inches and inserted his left hand into the glove compartment. Officer Kaalele, who stood on the driver’s side with his flashlight focused on the glove compartment, watched the movements of defendant’s left hand. At that time Officer Dennis Azevedo, who had arrived soon after Officer Kaalele had parked his vehicle behind vehicle 3, was standing on the passenger side of the same vehicle with his flashlight also shining in the same direction on the glove compartment. Officer Kaalele then saw defendant’s left hand touch something, which the officer recognized to be the butt of a revolver. Officer Kaalele then dove into the vehicle for the defendant, and after a scuffle between the officer and the defendant, he was subdued and arrested. Officer Azevedo recovered the gun still in the glove compartment of vehicle 3, and he also recovered from the glove compartment a receptacle containing secobarbitals and three marihuana cigarettes. Likewise, in connection with this search, Officer Newton Harbottle recovered from the same vehicle a brown paper sack which contained three lids of marihuana.

The pre-trial motion to suppress was filed by defendant in the court below on March 21, 1973, and the motion was heard on April 26, 1973. On the same day, after the hearing, the trial court ruled and held that under the circumstances the search was proper, and that the motion was without merit. When the trial of this case began on May 21, 1973, the defendant again orally renewed his motion to suppress during the trial, which was again denied.

At issue is whether the conduct of the police officers at any time before Officer Kaalele observed the butt of a revolver in vehicle 3 constituted a “seizure” of the defendant within the meaning of the Fourth Amendment to the Federal Constitution and Article I, Section 5 of the Hawaii State Constitution.¹

Terry v. Ohio, 392 U.S. 1 (1968), and its progeny make it clear that not every street encounter between the police and the public constitutes a “seizure.”

Obviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred. Terry, supra at 19, fn. 16.

In order to determine if the defendant’s liberty was restrained and he was, therefore, seized, we must evaluate the totality of the circumstances and decide whether or not a reasonably prudent person would believe he was free to go. The officer involved testified that he did not intend to prevent the defendant’s departure from the scene. However, it is appropriate to apply an objective standard, rather than a subjective one. It is well settled that when a “seizure” of a person is made, an objective standard must be applied to determine if that “seizure” is reasonable.² Likewise, we should use an objective standard to determine whether or not a “seizure” has taken place. Cf. State v. Delmondo, 54 Haw. 552, 512 P.2d 551 (1973).

Prior to the time Officer Kaalele began addressing questions to the defendant, he was voluntarily present at the scene of the encounter to aid his acquaintances in repairing or moving a stalled automobile (vehicle 1). When Officer Kaalele inquired the defendant about the ownership of the blue Comet automobile (vehicle 3) and the bicycle observed by the officer in the rear of the vehicle, he did so in a conversational manner. He then asked the defendant if he had some identification. When Mr. Tsukiyama, the defendant, replied that it was in the glove compartment, Officer Kaalele merely asked him if he would go and get it. He did not order the defendant to get it or demand that he get it. The officer did not in any way restrain the defendant from leaving, or from going anywhere as he pleased, and there was no indication that he was about to leave his companions. Officer Kaalele’s questions to the defendant were not overbearing or harassing in nature, and the officer did not make a show of authority, make any threats or draw a weapon. He only wore a police uniform as required by the department. The mere presence of five to seven uniformed officers on a public street in an urban area at 1:00 o ’clock in the morning is not in itself a show of authority or a form of coercion when eight civilians are also present. According to the testimony of the officers, the street was not blocked; the defendant and his acquaintances could have driven from the scene of the encounter. When the defendant voluntarily proceeded to open the glove compartment, Officer Kaalele trained the beam of his flashlight on the defendant’s left hand as a safety precaution. The officer, however, did not have his revolver drawn.

Officers Kohler and Kaalele and the other officers did not know the defendant before he was taken to the main police headquarters. The informal questions addressed to the defendant by Officer Kaalele in this factual situation is only a minimal intrusion on his privacy and did not rise to the level of a “seizure” within the meaning of the.Fourth Amendment.

While on the surface at least, there was nothing to indicate that defendant and his comrades were engaged in criminal activity or about to engage in such activity, there is no constitutional objection for a policeman merely to inquire of a person on the streets in a proper manner when the individual to whom the questions are addressed is under no compulsion to cooperate. This view was propounded by Mr. Justice White in his concurring opinion in Terry, supra at 34:

There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way.

Pursuant to this line of reasoning the Supreme Court of New Jersey in State v. Sheffield, 62 N. J. 441, 446-47, 303 A.2d 68, 71 (1973), reversing an appellate division stated:

The Appellate Division went wide of the mark when it limited the the right of a police officer to question a person to a situation involving “highly suspicious activities.” A police officer charged with the duty of crime prevention and detection and protection of the public safety must deal with a rich diversity of street encounters with citizens. In a given situation, even though a citizen’s behavior does not reach the level of “highly suspicious activities,” the officer’s experience may indicate that some investigation is in order. Depending on the circumstances, street interrogation may be most reasonable and proper. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612, 616-617 (1972).

This is not to say that a court, while recognizing the need for effective crime prevention and detection, should not be vigilant to strike down an abuse of the street questioning of a citizen by the police. However, there is no indication that the conduct of the officer in attempting to question defendant was overbearing or harassing in nature. . . .

The dissent herein is bottomed on the assumption that field interrogation by a police officer usually involves a “detention” of the person and has Fourth Amendment implications. The dissent, therefore, would limit such interrogation to a situation where the officer has a “reasonable suspicion of criminal activity.” This would practically require an officer to have grounds for an arrest before he could interrogate a person on the street, a test specifically rejected by the Supreme Court in Terry. Our conclusion is that mere field interrogation, without more, by a police officer does not involve “detention” in the constitutional sense so long as the officer does not deny the individual the right to move. Nor, if the dissent so intends, could we accept the view that whenever a police officer, without some suspicion of criminal activity, approaches an individual to ask him a question, there is a constitutional wrong which would require the suppression of contraband which the individual discards in response to the approach of the officer.

In People v. Monson, 28 Cal. App. 3d 935, 939, 105 Cal. Rptr. 92, 95 [no Pacific Reporter citation] (1972), the court recognized the need for “field” interviews by the police:

It is not unreasonable for officers to seek interviews with suspects or witnesses. . . . Otherwise they cannot perform effectively their functions of preventing crime and apprehending those reasonably suspected of crime.

In State v. Baxter, 68 Wash. 2d 416, 421, 413 P.2d 638, 642 (1966), the Washington State Supreme Court stated:

There is nothing unreasonable in an officer’s questioning persons who are out late at night. People v. Simon, 45 Cal. 2d 645, 290 P.2d 531 (1955). Had he [Baxter] continued to walk, or had he remained standing and merely refused to talk, the police may well have lacked probable cause to arrest him. See Green v. United States, 259 F.2d 180 (D.C. Cir. 1958), cert. denied, 359 U.S. 917, 3 L.Ed. 2d 578, 79 Sup. Ct. 594 (1959).

In addition the American Law Institute’s Official Draft No. 1 of A Model Code of Pre-Arraignment Procedure provides for police requests for cooperation. Article 110., Section 110.1, Subsection (1) Authority to Request Cooperation, reads in part:

A law enforcement officer may, subject to the provisions of this Code or other law, request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions .... In making requests pursuant to this section, no officer shall indicate that a person is legally obliged to furnish information or otherwise to cooperate if no legal obligation exists. Compliance with a request for information or other cooperation hereunder shall not be regarded as involuntary or coerced solely on the ground that such request was made by one known to be a laiv enforcement officer.”³ [Emphasis added.]

While this provision has not specifically been adopted by our legislature, the accompanying comment explicitly states that “[t]his section does not grant any new authority to law enforcement officials." A.L.I. Model Code, supra at 4.

The dissent contends that the trial court judge made a finding of fact that defendant was “detained.” However, this statement made by the trial judge was not a finding of fact, but just a casual, passing remark made immediately after the defendant renewed his motion to suppress during the trial. No sooner than the trial judge had stated that the defendant was detained, the judge then qualified his statement that it was not an illegal detention. While the trial judge characterized the encounter between the officer and the defendant as a detention, and stated, further, that the detention was not illegal, we think that, based upon the record herein, the trial judge used the word “detention” as being synonymous with the word “intrusion. ’ ’ Of course, the intrusion upon the defendant’s privacy, if any, was so minimal that it was neither perceptible, nor appreciable. In any event, the trial judge’s carefully considered denial of defense counsel’s motion to suppress evidence must be accorded greater weight than a casual comment. Consistent with and implicit in the trial judge’s ruling on the motion is a finding that a reasonably prudent person in the defendant’s position would not believe that he was in any way restrained of his liberty. The evidence is more than sufficient to support this conclusion. We do not find, as the dissent does, that the record supports a finding that Officer Kaalele deliberately approached the defendant to question him. We view the record as showing that as the defendant walked towards his vehicle, he approached Officer Kaalele who was on the sidewalk close to the right front fender of defendant’s vehicle. Officer Kaalele was then conversing with Oh Young. There is nothing in the record to show that the defendant was coerced to do anything by Officer Kaalele. Furthermore, as we indicated, supra, every person who meets a police officer on the street has the fundamental right to refuse to cooperate with such police officer. The defendant here could have simply refused to voluntarily cooperate with the officer, and that would have ended the encounter.

Many of the cases that expound the standards which must be met for a constitutionally reasonable “stop” or “seizure, ” beginning with Terry,⁴ need not be considered in the present case, since no “stop” or “seizure” took place. The case now before us can be distinguished on its facts from the numerous cases in which the Terry standards have been applied.

In each of the “Terry progeny” cases,⁵ relied upon by the state as well as by the defendant, there was an element of command, authority, force, threat, coercion, physical stopping or restraint present. This crucial element was lacking in the instant case until after defendant put his hand on the gun. At that point probable cause for arrest arose. State v. Wakinekona, 53 Haw. 574, 499 P.2d 678 (1972). Since there was, therefore, no “stop” or “seizure” of the defendant prior to his overtly unlawful act, we do not have to decide whether the circumstances could have given rise to a belief that “criminal activity may have been afoot”⁶ and thus justify a “stop” or “seizure. ” We find that the conduct of the police officers was constitutionally reasonable.

David S. Hobler, Deputy Public Defender (Donald K. Tsukiyama, Public Defender, of counsel), for defendant-appellant. Michael A. Weight, and Charlotte E. Libman, Prosecuting Attorneys (Barry Chung, Prosecuting Attorney, of counsel), for plaintiff-appellee.

Affirmed.

1 The Fourth Amendment to the Federal Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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 he seized.

Article 1. Section 5 of the Hawaii State Constitution reads:

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 The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. Terry v. Ohio, supra at 21.

3 . .. The explicit authorization to the police to seek cooperation, even where this may involve inconvenience or embarassment for the citizen, and even though many citizens will defer to this authority of the police because they believe — in some vague way — that they should, is a clear recognition in the Code that the moral and instinctive pressures to cooperate are in general sound and may be relied on by the police. This Section imposes restrictions on requests for cooperation only when police conduct is menacing, misleading, or conflicts with particular rights — such as the privilege against self-incrimination.A.L.I. Model Code, supra at 100.

4 The test set forth in Terry, supra at 30-31, reads as follows:

“We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

5 See, State v. Delmondo, supra; State v. Onishi, 53 Haw. 593, 499 P.2d 657 (1972); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (1971); Adams v. Williams, 407 U.S. 143 (1972); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966); United States v. Pearce, 356 F. Supp. 756 (D.C.E.D. Pa. 1973); Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966); United States v. Ragsdale, 470 F.2d 24 (5th Cir. 1972); Flores v. Superior Court, 17 Cal. App. 3d 219, 94 Cal. Rptr. 496 (1971); Irwin v. Superior Court, 1 Cal. 3d 423, 82 Cal. Rptr. 484, 462 P.2d 12 (1969); State v. Junious, 30 Cal. App. 3d 432, 106 Cal. Rptr. 344 (1973); Restani v. Superior Court, 3 Cal. 3d 320, 91 Cal. Rptr. 429 (1970); State v. Taras, 19 Ariz. App. 7, 504 P.2d 548 (1972); People v. Barksdale, 14 Ill. App. 3d 415, 302 N.E.2d 718 (1973); People v. Loveland, 71 Misc. 2d 935, 338 N.Y.S.2d 548 (1972); People v. Rivera, 14 N.Y.2d 441, 201 N.E.2d 32 (1964).

6 Terry, supra at 30.