*** NOT FOR PUBLICATION ***
NO. 22978
I. BACKGROUND
A. Factual Background
On May 18, 1999, shortly before midnight, Rodriguez and his wife, Olivia Rodriguez (Olivia) were embroiled in an argument about Olivia's failure to cook dinner. During the argument, Olivia's fifteen-year-old son, Ariel Trinidad (Ariel), saw Rodriguez holding a gun. Afraid for his mother's life, Ariel ran out of the house, in his pajamas, to a nearby park and called 911.
Maui Police Department's (MPD) Officer Ramos was the first to respond to MPD's dispatch regarding a possible domestic abuse involving a heated argument between a husband and wife and a possible gun at 941 Olioli Street. Arriving approximately four minutes after the dispatch, Officer Ramos spoke to a few people in the garage of the residence who directed him to a little corridor that led to a small house behind the garage. The house was dark and quiet. Unsuccessful in getting anyone to answer him, Officer Ramos entered the house through a closed but unlocked door and again called out for someone. With still no response, Officer Ramos proceeded down the hallway of the house and knocked on a closed, locked door announcing, "I'm police, checking. Is everybody all right?" Rodriguez opened the door, and Officer Ramos asked Rodriguez and Olivia to step outside into the garage.
At that point, Officer Oran Satterfield arrived. Officer Ramos remained in the garage with Rodriguez and Officer Satterfield spoke to Olivia in the lawn area. Shortly thereafter, Ariel returned to the residence. Officer Ramos questioned Rodriguez, who appeared very calm and denied the presence of a gun. Meanwhile, after separate conversations with Olivia and Ariel, Officer Satterfield determined that a gun was involved.
Officer Satterfield informed Officer Ramos of the situation, and both officers approached Rodriguez. When Officer Ramos asked Rodriguez about the weapon, Rodriguez began crying, admitted that the gun was in the bedroom, and then led the officers to the bedroom. In the bedroom, Rodriguez pointed toward the mattress of his bed. Officer Satterfield lifted the mattress and recovered a gun, a crystal meth pipe, and a black canvas bag. (6) Officer Ramos placed Rodriguez under arrest and transported him to the Wailuku Police Station.
On May 19, 1999, at approximately 1:15 a.m., Olivia provided a written statement stating, "He pointed the gun on [illegible] head and he hit the gun on my head." Ariel also provided a written statement stating, "[W]hen I was sleeping on the floor my step Dad open the door so hard, and open the light and he went to his room and pull out a gun and I thought my Dad is going to shoot my mom." At approximately 2:30 a.m., Rodriguez was apprised of his Miranda rights.
B. Procedural BackgroundOn June 1, 1999, Rodriguez was indicted on Counts I-IV. On July 20, 1999, Rodriguez filed a motion to suppress his statements and all evidence recovered. During the suppression hearing, Officer Satterfield testified, in relevant part, as follows:
[Prosecution:] Okay. At that point in time did [Olivia] say whether or not Defendant had said anything to her?
[Officer Satterfield:] When he pointed the weapon?
[Prosecution:] Yes.
[Officer Satterfield:] I believe my report said, "if we die, we die." That is what she told me.
[Prosecution:] Were you clear on exactly who did what when?
[Officer Satterfield:] As far as the story she told me?
[Prosecution:] Yes.
[Officer Satterfield:] They were -- her and her husband were within the bedroom. She was sitting on the bed and they was arguing over family matters. At that point he pulled out a handgun and pointed it to her head and stated, "If we die, we die."
On cross-examination, Officer Satterfield testified as follows:[Defense Attorney:] And Ariel's statement was consistent with Olivia's statement, correct?
[Officer Satterfield:] He told me that he was within his bedroom and sleeping at the time and he had -- [Rodriguez] had walked into his bedroom, turned on the light, and then closed the door, and at that point Ariel got up, went to his doorway, looked into the family's bedroom, inside the parents' bedroom, and he saw [Rodriguez] appeared to be loading a pistol.
On August 13, 1999, the circuit court denied Rodriguez's motion to suppress, concluding that "the police acted on the basis of specific, articulable facts and exigent circumstances which justified their search to secure any weapon before proceeding further with their investigation." The circuit court further concluded that the gun and drug paraphernalia would inevitably have been discovered. The circuit court's FOFs and conclusions of law (COLs), in relevant part, are as follows:[FOF] 29. The Court took judicial notice that domestic abuse situations are often explosive, potentially violent and potentially irrational.
. . . .
[COL] 5. In the present case, the police acted on the basis of specific, articulable facts and exigent circumstances which justified their search to secure any weapon before proceeding further with their investigation.
On August 31, 1999, Rodriguez entered a conditional plea of no contest. On October 28, 1999, the circuit court entered its judgment of guilty conviction and sentence. Rodriguez filed a timely notice of appeal.
II. STANDARD OF REVIEW
A. Motion to Suppress"We review the circuit court's ruling on a motion to suppress de novo to determine whether the ruling was 'right' or 'wrong.'" State v. Kauhi, 86 Hawai`i 195, 197, 948 P.2d 1036, 1038 (1997). The circuit court's conclusions of law underlying the motion to suppress are reviewed de novo under the right and wrong standard. State v. Lopez, 78 Hawai`i 433, 440, 896 P.2d 889, 896 (1995). However, the circuit court's findings of fact are reviewed under the clearly erroneous standard. Id. "Under this standard, a finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction in reviewing the entire evidence that a mistake has been committed." Id. at 440-41, 896 P.2d at 896-97 (brackets and internal quotation marks omitted).
B. Judicial NoticeState v. West, 95 Hawai`i 22, 24-25, 18 P.3d 884, 886-87 (2001) (citations omitted) (brackets in original).
III. DISCUSSION
A. Because exigent circumstances existed, the initial entry into Rodriguez's residence was not unreasonable.Rodriguez argues that the prosecution failed to show that exigent circumstances existed to justify the initial warrantless entry into his residence, inasmuch as Officer Ramos did not hear any yelling, screaming, gunshots, breaking glass, or objects smashing. Rodriguez's argument is without merit. The fourth amendment to the United States Constitution (7) and article I, section 7 of the Hawai`i Constitution (8) guarantee the right to be free from unreasonable searches and seizures. Lopez, 78 Hawai`i at 441, 896 P.2d at 897. To determine whether a governmental activity violates this right, this court must ask (1) whether the governmental activity was a "search" in the constitutional sense, and, if so, (2) whether the search was "reasonable." Id. That Officer Ramos's initial entry into Rodriguez's residence was a "search" in the constitutional sense is uncontested. As such, our inquiry turns to whether the search was reasonable.
"Determining whether a search is reasonable depends primarily on whether prior judicial approval has been obtained. It is well-established that a search by law enforcement officials without a judicial warrant issued upon probable cause is 'presumptively unreasonable' under both the United States and Hawai`i Constitutions." Id. at 442, 896 P.2d at 898. Thus, a warrantless search is invalid unless the prosecution can overcome the initial presumption of unreasonableness by showing that the search falls "within one of the narrowly drawn exceptions to the warrant requirement." Id. "One such well-recognized and narrowly-defined exception to the warrant requirement occurs when the government has probable cause to search and exigent circumstances exist necessitating immediate police action." State v. Pulse, 83 Hawai`i 229, 245, 925 P.2d 797, 813 (1996) (citations, formatting, and internal quotation marks omitted). "Probable cause to search exists when the facts and circumstances within one's knowledge and of which one has reasonable trustworthy information are sufficient in themselves to warrant a person of reasonable caution to believe that an offense has been committed." Id. (brackets omitted) (quoting State v. Navas, 81 Hawai`i 113, 116, 913 P.2d 39, 42 (1996)). The exigent circumstances exception
exists when the demands of the occasion reasonably call for an immediate police response. More specifically, it includes situations presenting an immediate danger to life or serious injury or an immediate threatened removal or destruction of evidence. However, the burden, of course, is upon the government to prove the justification . . . , and whether the requisite conditions exist is to be measured from the totality of the circumstances. And in seeking to meet this burden, the police must be able to point to specific and articulable facts from which it may be determined that the action they took was necessitated by the exigencies of the situation.
Pulse, 83 Hawai`i at 245, 925 P.2d at 813 (quoting State v. Clark, 65 Haw. 488, 494, 654 P.2d 355, 360 (1982) (internal citations, quotation marks, and brackets omitted)).In the instant case, Ariel's phone call to the police stating that his parents were fighting and that his dad had a gun gave Officer Ramos probable cause to believe that a crime had been committed. In addition, the record contains evidence sufficient to support the circuit court's determination that, under the totality of the circumstances, exigency existed. During the hearing on Rodriguez's motion to suppress, evidence was adduced that the following factors contributed to Officer Ramos's decision to enter Rodriguez's residence: (1) a possible domestic abuse was occurring at 941 Olioli Street; (2) husband and wife were in a heated argument; (3) a gun was involved; (4) Officer Ramos arrived at 941 Olioli Street within four minutes of the dispatch; (5) upon arrival, Officer Ramos was directed to the house behind the garage; (6) the house was dark and quiet; and (7) no one responded to his verbal calls. Although none of these factors, taken alone, may have risen to the level of exigent circumstances, considered together, it was not unreasonable for a trier of fact to determine that Officer Ramos was presented with a situation where he feared an immediate danger to life or serious injury. Thus, Officer Ramos's initial entry into Rodriguez's residence was not unreasonable.
B. Because Rodriguez was not "in custody," Officer Ramos was not required to provide Rodriguez with a
Rodriguez argues that he should have been given a Miranda warning before the officers questioned him about the gun, and that no exigent circumstances existed to justify the officers' failure to Mirandize him. Conversely, the prosecution argues that, although the officers should have apprised Rodriguez of his Miranda rights, the "public safety" exception to the Miranda rule applies. Both arguments miss the mark; the point is that, inasmuch as Rodriguez was not subjected to custodial interrogation, the officers were not required to give Rodriguez Miranda warnings at all.
"It is by now a fundamental tenet of criminal law that 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." State v. Paahana, 66 Haw. 499, 502, 666 P.2d 592, 595 (1983).
In determining whether a defendant's statement was made in a custodial context, the totality of circumstances must be considered, including the time, place and length of the interrogation, the nature of the questions asked, the conduct of the police at the time of the interrogation, and any other pertinent factors. . . . In determining whether an officer's questions constitute interrogation, the test is whether the officer should have known that his words and actions were reasonably likely to elicit an incriminating response from the defendant.
Id. at 502-03, 666 P.2d at 595-96 (citations omitted). In determining whether a person is "in custody," this court has explained thatan individual may very well be "seized," within the meaning of article I, section 7 of the Hawai`i Constitution (inasmuch as, "given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave") and yet not be "in custody," such that Miranda warnings are required as a precondition to any questioning. Thus, generally speaking, a person lawfully subjected to a temporary investigative detention by a police officer -- who has a reasonable suspicion that is based on specific and articulable facts that criminal activity is afoot -- is not subjected to "custodial interrogation" when the officer poses noncoercive questions to the detained person that are designed to confirm or dispel the officer's reasonable suspicion. Indeed, "[i]t is the very purpose of [such an] investigatory stop to allow the officer to confirm or deny [his or her reasonable] suspicions by reasonable questioning, rather than forcing in each instance the 'all or nothing' choice between arrest and inaction."
State v. Ah Loo, 94 Hawai`i 207, 211, 10 P.3d 728, 732 (2000) (citations omitted) (some brackets in original). There is no absolute line delineating between custodial interrogation and on-the-scene questioning. State v. Ketchum, 97 Hawai`i 107, 122, 34 P.3d 1006, 1021 (2001). The question whether a person was "in custody" must, instead, be decided on a case-by-case basis. Id. at 123, 10 P.3d at 1022.Looking at the totality of the circumstances, it is clear that, while in his garage, Rodriguez was subjected to lawful investigation rather than custodial interrogation. When Officer Ramos responded to a possible domestic abuse situation involving a gun, he encountered Rodriguez and Olivia, who were very calm and denied the use of a gun. After speaking to Olivia, Officer Satterfield determined that a gun may have been involved and informed Officer Ramos. Officer Ramos testified that, at that point, he did not know if Rodriguez was the victim, witness, or perpetrator. Officer Ramos then told Rodriguez that "if there is a gun involved, I need to know where the gun is." This statement was necessary to confirm or dispel Officer Ramos's reasonable suspicion that a gun was used. In addition, the officers did not direct Rodriguez to sit or restrict his movement in any way. The officers did not touch Rodriguez or draw their weapons. The questioning period lasted for five to ten minutes and was conducted in an open garage. Moreover, Rodriguez gave no indication that he did not wish to participate. Thus, based on the totality of the circumstances, although Rodriguez may have been seized, inasmuch as a reasonable person would not feel free to leave, he was not "in custody" so as to require Officer Ramos to provide him with a Miranda warning prior to questioning him regarding the location of the gun.
Contrary to the prosecution's argument, the "public safety" exception is inapplicable in the instant case. In State v. Kane, 87 Hawai`i 71, 79, 951 P.2d 934, 942 (1998), this court disapproved the prosecution's argument that the defendant's statement was admissible for public safety purposes for two reasons:
First, while the United States Supreme Court has adopted the "public safety" exception as a limitation on the procedural safeguards necessary for the protection of the rights afforded by the fifth amendment to the United States Constitution, this court has never formally adopted an analogous limitation on the protections afforded to criminal defendants by article I, section 10 of the Hawai`i Constitution. Second, on the facts of this case, the "public safety" exception to the Miranda requirements, as set forth by the United States Supreme Court in [New York v.] Quarles, [467 U.S. 649 (1984)], is not applicable, and, therefore, cannot render [the defendant's] statements admissible even under federal constitutional analysis.
Id. at 79, 951 P.2d at 942. This court then discussed Quarles:Id. Finally, this court concluded that Quarles was inapposite to Kane.
. . . Unlike the police officer in Quarles, [the officer] had ascertained the location of [the defendant's] device and was aware that it was an explosive. Armed with this knowledge, [the officer] did not require additional information from [the defendant] in order to verify the need to call the bomb squad. Accordingly, [the officer's] questions cannot be said to have been designed solely for the purpose of addressing the danger posed by the explosive. The "public safety" exception to Miranda being inapplicable to this case, we hold that [the defendant's] answers to [the officer's] questions pertaining to what the explosive was and why [the defendant] was in possession of it are inadmissible in evidence.
Id.Even if this court were to adopt the "public safety" exception to the requirement of Miranda warnings, the exception would be inapplicable in the instant case. The officers were informed by Olivia and Ariel that the gun was used in the bedroom. The record is devoid of any evidence that the gun was removed from the bedroom. Rodriguez's bedroom obviously was not a public place. In addition, Rodriguez and Olivia were questioned by the officers in the garage, without access to the gun. As such, the unlocated gun could not have posed a threat to public safety.
C. Although the subsequent entry into Rodriguez's residence was merely further investigation, the warrantlessAs discussed supra
in section III.A., a warrantless search is
presumptively unreasonable unless the prosecution can prove that the
search falls “within one of the narrowly drawn exceptions to the
warrant requirement.” Lopez,
78 Hawai`i at 442, 896 P.2d at
898. As an exception, “[e]xigent circumstances exist when
immediate police response is required to prevent imminent danger
to life or serious damage to property, or to forestall the likely
escape of a suspect or the threatened removal or destruction of
evidence.” State v.
Texeira, 62 Haw. 44, 50, 609 P.2d 131, 136
(1980). “In order for the State to take advantage of this
particular exception, the State must be able to point to specific and
articulable facts from which it may be determined that the officers’
actions were necessitated by the exigencies of the situation which
called for an immediate police response.” Paahana, 66 Haw. at
506, 666 P.2d at 597.
In the instant case, the prosecution failed to point to any articulable facts that would support the immediate search of Rodriguez's mattress without a warrant. According to the record, the officers were aware of the fact that a gun was used in the bedroom and there was no indication that the gun was removed from the bedroom. The officers detained Rodriguez, Olivia, and Ariel in the garage area, away from the gun. In addition, Rodriguez appeared to be calm and cooperative. The record is devoid of any evidence that it would have been impracticable to obtain a warrant or that delay would endanger lives. Moreover, there is no indication that the evidence would be lost, destroyed, or removed before the warrant could be obtained. Although these events occurred in the middle of the night, "[i]nconvenience to the police or to a judge, for that matter, has never been a very convincing reason to by-pass the warrant requirement." Id. (explaining that "while the events occurred in the evening, it is inconceivable that none of the judges in the first circuit would have been available for the purpose of entertaining an application for a warrant"). Based on the foregoing, the prosecution failed to meet its burden of proving that exigent circumstances existed to justify the warrantless search. As such, the circuit court's COL No. 5 was wrong and, thus, the gun and drug paraphernalia recovered were inadmissible as evidence.
The prosecution's claim that HRS § 709-906(4)(f) authorized the officers' seizure of the gun is misguided. HRS § 709-906 provides in relevant part:
(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable grounds to believe that there was physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the officer's presence:
HRS §
709-906(4)(f) (emphasis added). HRS §
709-906(4)(f) does not provide for warrantless searches. In addition,
HRS
§ 709-906(4)(f) may not be executed at the expense of Rodriguez's
constitutional right against unreasonable searches and
seizures. Cf. State v. Peseti, 101
Hawai`i 172, 181, 65 P.3d 119, 128 (2003) (holding that a statutory
privilege must bow to
the defendant's constitutional rights in the context of
cross-examination). Thus, in the instant case, because the search of
Rodriguez's mattress was conducted without a warrant and HRS §
709-906(4)(f) is inapplicable, the gun and drug
paraphernalia should have been suppressed.