State v. Veniegas

905 P.2d 50, 80 Haw. 75, 1995 Haw. App. LEXIS 30
CourtHawaii Intermediate Court of Appeals
DecidedAugust 8, 1995
DocketNo. 17302
StatusPublished
Cited by4 cases

This text of 905 P.2d 50 (State v. Veniegas) is published on Counsel Stack Legal Research, covering Hawaii Intermediate Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Veniegas, 905 P.2d 50, 80 Haw. 75, 1995 Haw. App. LEXIS 30 (hawapp 1995).

Opinion

BURNS, Chief Judge.

Defendant Alejandro Veniegas (Veniegas) appeals the First Circuit Court’s July 14, 1993 Judgment, upon a jury’s verdict, convicting him of Promoting a Dangerous Drug in the Second Degree, Hawaii Revised Statutes (HRS) § 712-1242(l)(b)(i) (Supp.1992), and Unlawful Use of Drug Paraphernalia, HRS § 329-48.5(a) (Supp.1992).

The issue before us is whether the circuit court reversibly erred, on May 26, 1992, when it entered its Findings of Fact, Conclusions of Law and Order Denying Defendant’s Motion to Suppress Evidence (May 26, 1992 Order).

We vacate the May 26,1992 Order and the July 14, 1993 Judgment and remand for further proceedings consistent with this opinion.

FACTS

On January 28, 1991, at or about six o’clock p.m., Honolulu police officers Mark Cricchio (Officer Cricchio) and Harvey Hisa-take were monitoring traffic from the Palolo Recreation Center parking lot. The officers observed Veniegas driving a white convertible Mustang automobile (Mustang) at a high speed around a corner. As the Mustang passed the officers, they observed that Ven-iegas was not wearing a seat belt. The officers pursued, and Veniegas stopped.

Officer Cricchio informed Veniegas that he was stopped because he was not wearing a seat belt. Officer Cricchio then asked Venie-gas for his driver’s license, no-fault insurance card, and the Mustang’s registration. Venie-gas explained that he did not have any of those items because he lost his wallet and the Mustang was rented by his friend. Veniegas offered his social security number and a traffic citation he had received the previous night. Officer Cricchio observed a long black case on the passenger seat of the Mustang.

Officer Cricchio returned to his police ear and verified that Veniegas had a valid driver’s license, the Mustang was owned by Budget Rent-A-Car, the Mustang had not been reported stolen, and the rental contract did not permit Veniegas to operate the Mustang. During this time, the officers observed Ven-iegas place some object underneath the front seat of the Mustang.

When Officer Cricchio returned to the Mustang, he ordered Veniegas out of it based on the following facts: (1) the rental contract did not permit Veniegas to operate the Mustang; (2) Veniegas had no driver’s license in his immediate possession; (3) Veniegas did not exhibit a no-fault insurance identification card; and (4) Veniegas did not present the Mustang’s registration. Officer Cricchio testified:

I came back to the vehicle—upon the cheeks we had—I had dispatch check with Budget, Budget Rent-A-Car. And he in fact was not on the contract to drive that car. So based on that he had no driver’s license although he had a valid license. He had nothing on his person, no insurance in the car, no registration in the car. I ordered him out of that car. He couldn’t drive that ear.

As Veniegas exited, Officer Cricchio noticed, on the driver’s seat, two clear plastic bags containing a crystal-like substance, later identified to be methamphetamine. Veniegas stated, “That[’]s not mine.” Officer Cricchio testified that the seized evidence was not in plain view until he ordered Veniegas out of the Mustang. Officer Cricchio also noticed and recovered from the floor of the Mustang a dark blue shaving kit, containing several empty plastic bags and two glass pipes, each of which contained a “crystal like substance.” Veniegas was then arrested.

On November 19, 1991, Veniegas was indicted as follows: Count I, Promoting a Dan[77]*77gerous Drug in the Second Degree (Count I); Count II, Unlawful Use of Drug Paraphernalia (Count II); and Count III, Driving While Not Restrained by a Seatbelt Assembly (Count III).

On January 21, 1992, Veniegas filed a Motion to Suppress Evidence in which he contended that Officer Cricehio unlawfully ordered him out of the Mustang and, therefore, everything that followed was likewise unlawful. The circuit court’s May 26, 1992 Order denied the motion.

On October 13, 1992, a jury found Venie-gas guilty of Count III, but deadlocked on Counts I and II.

Upon retrial, a jury found Veniegas guilty of Counts I and II. The July 14,1993 Judgment sentenced Veniegas to incarceration for ten years on Count I and incarceration for five years on Count II, the terms to run concurrently.

DISCUSSION

Veniegas contends that the circuit court reversibly erred when it entered its May 26, 1992 Order denying his January 21, 1992 Motion to Suppress Evidence. We agree.

In State v. Kim, 68 Haw. 286, 711 P.2d 1291 (1985), the Hawai’i Supreme Court stated that “a police officer must have cause before ordering a driver out of a vehicle after a traffic stop[,]” and “a police officer must have at least a reasonable basis of specific articulable facts to believe a crime has been committed to order a driver out of a car after a traffic stop.” Id. at 290, 711 P.2d at 1294.

HRS § 701-107(1) (1985) states in relevant part that “[a]n offense defined by this Code or by any other statute of this State for which a sentence of imprisonment is authorized constitutes a crime.” In Kim, since the reason for the traffic stop, ie., making a right turn through a red light without first stopping of signaling the driver’s intention to make a right turn, was not a crime, HRS §§ 291C-32, -84(b), and -161 (1985), and the police officer had no reasonable basis of specific articulable facts to believe a crime had been committed, the officer was not authorized to order the driver out of the car. Id.

In State v. Bolosan, 78 Hawai’i 98, 890 P.2d 685 (App.1994), aff'd in part and rev’d in part, 78 Hawai’i 86, 890 P.2d 673 (1995), we stated:

In Hawai’i, unlike at the federal level, “[a] traffic violation in and of itself does not supply reasonable articulable facts to support an order to exit the vehicle.” Kernan v. Tanaka, 75 Haw. 1, 38 n. 22, 856 P.2d 1207, 1226 n. 22 (1993). A police officer is not authorized to order a driver out of a vehicle after a traffic stop unless the officer has at least a reasonable basis to believe, based on specific articulable facts, that a crime has been committed, State v. Kim, 68 Haw. 286, 290, 711 P.2d 1291, 1294 (1985), or that the driver is armed and dangerous. State v. Joao, Jr., 56 Haw. 216, 221, 533 P.2d 270, 274 (1985).

78 Hawai’i at 103, 890 P.2d at 690 (footnote omitted).

Some motor vehicle offenses are not crimes. HRS § 291-11.6

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Related

Commonwealth v. Campbell
59 N.E.3d 394 (Massachusetts Supreme Judicial Court, 2016)
State v. Vallesteros
933 P.2d 632 (Hawaii Supreme Court, 1997)
State v. Veniegas
902 P.2d 976 (Hawaii Supreme Court, 1995)

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Bluebook (online)
905 P.2d 50, 80 Haw. 75, 1995 Haw. App. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-veniegas-hawapp-1995.