I dissent and would uphold the circuit court's suppression of the evidence.
In my view, the first prong of the Aguilar
v. Texas, 378 U.S. 108, 114 (1964) test ("some of the underlying
circumstances from which the informant concluded that the narcotics were
where he [or she] claimed they were") was not satisfied. The mere statement
that the confidential informant observed the drugs at the residence of
Defendant-Appellee Kelly Moniz (Defendant) did not set forth any facts
so as to evaluate the basis of that observation. The affidavit must set
forth an "adequate basis for the informer's conclusion regarding the location
of the objects sought to be discovered[.]" State
v. Navas, 81 Hawai`i 29, 36, 911 P.2d 1101, 1108 (App. 1995),aff'd,
81 Hawai`i 113, 913 P.2d 976 (1996). The affidavit does not indicate the
circumstances under which the informant had made the observation. The affidavit
does not reflect that the informant personally observed Defendant use,
sell, or in actual possession of methamphetamine. See State
v. Kanda, 63 Haw. 36, 44, 620 P.2d 1072, 1078 (1980) (first prong
of Aguilar test was
not satisfied where "affidavits fail to state that any of" defendants "were
observed accepting bets, transmitting information to or collecting money
for the house, or paying the winners"); cf. State
v. Delaney, 58 Haw. 19, 22, 563 P.2d 990, 992 (1977) (first prong
of Aguilar test
was met where informant "witnessed a sale involving hashish" between defendant
and unidentified buyer, and sale was made in informant's "presence"). The
affidavit does not indicate where in the residence the informant had observed
the methamphetamine. The only information that Hawaii County Police Department
Officer Daryl Fernandez (Officer Fernandez) included in his affidavit is
that he personally confirmed the informant's description of the location
of the residence and the exterior appearance of the location was accurate.
However, the affidavit failed to indicate that Officer Fernandez made any
attempt to ascertain who actually resided in the "trailer type home" or
owned the premises upon which it was situated. (1)
1. According to the informant, Defendant's "trailer type home" was situated behind a house, and Defendant's parents owned the lot upon which both the house and the trailer were located.