State v. Silva (Concurring Opinion)

CONCURRING OPINION OF ACOBA, J.

I concur in the result.

I note that the prerequisite for a warrant check under Hawai`i Revised Statutes § 803-6 (1993) is a "lawful" arrest. No officer here testified that Defendant-Appellant Brandon Silva (Defendant) was ordered to exit the vehicle for the purpose of an arrest. Officer Ronald Lopes (Officer Lopes), the arresting officer, testified that it was "up to [the complainant]" as to whether Defendant would be arrested, and that he ordered Defendant to exit the vehicle because there "was a lotta stuff in [Defendant's] car" and he felt "insecure." Officer Lopes testified Defendant was placed under arrest after and as a result of the warrant check.

I do not read the majority opinion as generally allowing detention for purposes of a warrant check once the purpose for which a seizure is made has been satisfied. Conceivably, here, the police had sufficient information to detain Defendant for investigation of simple trespass and theft, although he was neither subsequently arrested nor charged for either offense.

In any event, I do not believe recovery of the contraband was the fruit of Officer Lopes' exit order. Defendant testified that after he exited the car he volunteered the information that he had traffic warrants. Accordingly, in my view, Defendant was the person who provided the basis for, and thus invited his further detention for a warrant check. The contraband was recovered following the arrest on the warrants, and validly so, as incident to arrest under the police version of the events, or pursuant to the inevitable discovery rule under Defendant's recounting of the episode.