State v. Lee. ( 2021 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
09-FEB-2021
09:56 AM
Dkt. 11 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAIʻI,
Respondent/Plaintiff-Appellant,
vs
JOSHUA LEE,
Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CR. NO. 1PC151001959
FEBRUARY 9, 2021
RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ.,
AND WILSON J., DISSENTING1
OPINION OF THE COURT BY NAKAYAMA, J.
Petitioner/Defendant-Appellee Joshua Lee (Lee) appeals
the judgment of the Intermediate Court of Appeals (ICA) vacating
the Circuit Court of the First Circuit’s2 (circuit court) Order
1 Associate Justice Richard W. Pollack, who was a member of the court
when the oral argument was held, retired from the bench on June 30, 2020.
2 The Honorable Rom A. Trader presided.
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granting Lee’s motion to suppress evidence obtained in a search
of Lee’s bedroom. On certiorari, Lee raises a single point of
error and argues that the ICA erred in applying an emergency aid
exception, which Lee contends is inconsistent with article I,
section 7 of the Hawaiʻi Constitution.
Even if the police officers unlawfully searched Lee’s
bedroom, however, the circuit court erred in suppressing all
evidence obtained by the State. The evidence did not constitute
suppressible “fruit of the poisonous tree.” The State did not
gain any benefit from the police officers’ entry into Lee’s
bedroom. Moreover, Lee’s actions following the officers’ entry
into Lee’s bedroom severed any causal link between the officers’
purportedly unlawful entry and the evidence recovered.
Therefore, the ICA did not err in vacating the Order entered by
the circuit court on October 13, 2016, and we affirm the ICA’s
Judgment on Appeal on different grounds.
I. Background
A. Factual Background
On October 26, 2015, Honolulu Police Department (HPD)
dispatched Corporal Craig3 Takahashi (Corporal Takahashi),
3 The record identifies Corporal Takahashi as both “Kurt Takahashi” and
“Craig Takahashi.” This court will use the given name Corporal Takahashi
provided in his own testimony.
2
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Officer Sommer4 Kahao (Officer Kahao), and Sergeant Michael Cobb
(Sergeant Cobb) (collectively, the officers) to respond to a
“suicidal male call” at a home in ʻAiea. The dispatcher informed
the officers that Lee had locked himself in his bedroom, where
he kept samurai swords, and was threatening suicide.
After the officers entered the home with Lee’s
family’s consent, the officers attempted to persuade Lee to open
the door so that they could visually confirm that Lee was
unharmed, as required by HPD training. Officer Kahao spoke with
Lee first, using phrases like “Joshua, this is Officer Kahao,
Could you please open the door?” Instead of opening the door,
Lee responded that he was okay and that the officers should
leave. After Officer Kahao spoke with Lee for approximately ten
minutes, Sergeant Cobb took over speaking with Lee. The circuit
court found that “Sergeant Cobb was more demanding” and told Lee
that he “needed to grow up” and “to be a man.” When Lee asked
if the officers had a warrant, Sergeant Cobb responded, “We
don’t need a warrant, dumbass.”5
Despite Lee’s requests that the officers leave, the
officers were required to ensure that Lee was neither harmed nor
4 The record identifies Officer Kahao as both “Sommer Kahao” and “Summer
Kahao.” This court will use the spelling utilized in the indictment.
5 Sergeant Cobb testified that using aggressive language in response to
suicide calls is permitted by HPD training. This court expresses no opinion
on the propriety of Sergeant Cobb’s methods.
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at imminent risk of injuring himself. Sergeant Cobb therefore
picked the lock on the door so that the officers could at least
see Lee. However, Sergeant Cobb could not open the door because
it was being obstructed.
Once the door opened, however, the situation rapidly
changed. Lee opened the door approximately four to six inches.
From the hallway, the officers saw Lee holding a sword handle in
his right hand. Based on the officers’ positioning, Sergeant
Cobb could only see the sword handle. However, Officer Kahao
and Corporal Takahashi both saw that the sword was made of wood.
Officer Kahao instructed Lee to drop the sword, but Lee did not
immediately comply.
Concerned for the officers’ safety, Sergeant Cobb
pushed open the door and entered the room, simultaneously
pushing Lee away from the officers. Once Sergeant Cobb was
inside the room, Lee swung the sword at Sergeant Cobb, but
missed. Sergeant Cobb attempted to calm Lee down, but Lee
maintained an aggressive stance. Sergeant Cobb tried to grab
Lee’s arm. However, Lee flipped Sergeant Cobb onto Sergeant
Cobb’s back. Lee then started kneeing Sergeant Cobb in the
head. From the time Lee opened the door to the time Lee flipped
Sergeant Cobb over, mere seconds had passed.
After seeing Sergeant Cobb suddenly flip over, Officer
Kahao attempted to grab Lee from behind. However, Lee threw
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Officer Kahao onto a couch in the room. Officer Kahao and
Corporal Takahashi ultimately subdued Lee using pepper spray.
A grand jury indicted Lee with Terroristic Threatening
in the First Degree,6 Assault Against a Law Enforcement Officer
in the First Degree,7 and Resisting Arrest.8
6 Hawaiʻi Revised Statutes (HRS) § 707-716(1) (2013) provides in relevant
part
Terroristic threatening in the first degree. (1) A
person commits the offense of terroristic threatening in
the first degree if the person commits terroristic
threatening:
. . .
(c) Against a public servant arising out of the
performance of the public servant’s official duties.
. . .
. . .
(e) With the use of a dangerous instrument or a
simulated firearm. . . .
7 HRS § 707-712.5(1)(a) (2003) provides
Assault against a law enforcement officer in the first
degree. (1) A person commits the offense of assault
against a law enforcement officer in the first degree if
the person:
(a) Intentionally or knowingly causes bodily injury to a
law enforcement officer who is engaged in the
performance of duty[.]
8 HRS § 710-1026(1)(a) (2001) provides
Resisting arrest. (1) A person commits the offense of
resisting arrest if the person intentionally prevents a law
enforcement officer acting under color of the law
enforcement officer’s official authority from effecting an
arrest by:
(a) Using or threatening to use physical force against
the law enforcement officer or another[.]
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B. Circuit Court Proceedings
Lee moved the circuit court to suppress all evidence
gathered from Lee’s bedroom, all statements made to the officers
after they entered Lee’s room, and “all actions initiated by
illegal observations made by HPD Officers.” Lee asserted that
he possessed a reasonable expectation of privacy in his bedroom
and that any evidence of his actions was obtained from a
warrantless search.
The circuit court granted Lee’s motion. In
particular, the circuit court determined that Lee possessed a
reasonable expectation of privacy in his bedroom, that Sergeant
Cobb coerced Lee into opening his bedroom door, and that “all
statements, evidence, observations and actions that were
observed or obtained” after entry into Lee’s bedroom should be
suppressed.
C. ICA Proceedings
The State appealed to the ICA, arguing that the
circuit court erred in granting Lee’s motion to suppress because
(1) the exigent circumstances exception applied, (2) the federal
emergency aid exception applied, and (3) alternatively, if the
officers unlawfully entered Lee’s room, Lee’s actions were not
protected as they constituted a new crime.
The ICA agreed with the State’s claim that an
emergency aid exception applied. Notably, the ICA determined
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that a warrantless search occurred when Lee opened his bedroom
door. Nevertheless, the ICA held that the search was reasonable
because an emergency aid exception justified the warrantless
search, and the circuit court therefore erred in granting Lee’s
motion to suppress.
II. Standard of Review
A. Motion to Suppress
“[W]e review questions of constitutional law under the
‘right/wrong’ standard.” State v. Jenkins, 93 Hawaiʻi 87, 100,
997 P.2d 13, 26 (2000) (citing State v. Toyomura, 80 Hawaiʻi 8,
15, 904 P.2d 893, 900 (1995)). Accordingly, “[w]e 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 Hawaiʻi 195, 197, 948 P.2d 1036, 1038 (1997) (citing
State v. Navas, 81 Hawaiʻi 113, 123, 913 P.2d 39, 49 (1996)).
III. Discussion
On certiorari, Lee argues that the ICA erred in
vacating the circuit court’s order granting Lee’s motion to
suppress evidence. Specifically, Lee contends that “the State
. . . failed to establish exigent circumstances to justify the
warrantless search.” Lee adds that the ICA improperly relied
upon the federal emergency aid exception because it “is
inconsistent with the enhanced protections afforded under
Article I, Section 7” of the Hawaiʻi Constitution.
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We accepted certiorari in this case to reinforce our
precedent regarding the exclusionary rule and the fruit of the
poisonous tree doctrine. Assuming that the officers’ entry into
Lee’s bedroom was unlawful, the State bore the burden of showing
that the evidence gathered was not tainted by their unlawful
entry. The State satisfied this burden. The officers did not
receive any benefit from entering Lee’s bedroom. Additionally,
Lee’s decision to assault the officers constituted an
intervening circumstance which dissipated the causal link
between the officers’ entry and the evidence gathered. Because
the evidence at issue did not constitute fruit of the poisonous
tree regardless of the legality of the officers’ entry, we do
not address the issue of whether the emergency aid exception
justified the officers’ entry.
A. The Exclusionary Rule and the Fruit of the Poisonous Tree
Doctrine.
The Hawaiʻi exclusionary rule serves the dual purposes
“of deterring governmental officials from circumventing the
protections afforded by the Hawaiʻi Constitution” and of
“protect[ing] the privacy rights of our citizens.” State v.
Lopez, 78 Hawaiʻi 433, 446, 896 P.2d 889, 902 (1995) (citing
State v. Furuyama, 64 Haw. 109, 122, 637 P.2d 1095, 1104
(1981)). Relatedly, “the ‘fruit of the poisonous tree’ doctrine
‘prohibits the use of evidence at trial which comes to light as
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a result of the exploitation of a previous illegal act of the
police.’” State v. Fukusaku, 85 Hawaiʻi 462, 475, 946 P.2d 32,
45 (1997).
B. The circuit court erred in granting Lee’s motion to
suppress because there was no fruit of the poisonous tree.
Under the federal constitution, in order to prevent
evidence from being suppressed as “fruit of the poisonous tree,”
the prosecution must “show that its evidence is untainted” by
the government’s purportedly unlawful act. Id. The State may
achieve this goal either by showing that the police did not
exploit the illegal activity to gather evidence, id., or by
demonstrating that there is no causal link between the illegal
activity and the evidence gathered, Wong Sun v. United States,
371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963). We have adopted a
similar formulation under the state constitution:
“[T]he ‘fruit of the poisonous tree’ doctrine ‘prohibits
the use of evidence at trial which comes to light as a
result of the exploitation of a previous illegal act of the
police.’” State v. Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d
32, 45 (1997) (quoting State v. Medeiros, 4 Haw. App. 248,
251 n.4, 665 P.2d 181, 184 n.4 (1983)). “Under the fruit
of the poisonous tree doctrine, [a]dmissibility is
determined by ascertaining whether the evidence objected to
as being ‘fruit’ was discovered or became known by the
exploitation of the prior illegality or by other means
sufficiently distinguished as to purge the later evidence
of the initial taint.” State v. Poaipuni, 98 Hawai‘i 387,
392–93, 49 P.3d 353, 358–59 (2002) (alteration in original)
(quoting Fukusaku, 85 Hawai‘i at 475, 946 P.2d at 45).
State v. Trinque, 140 Hawaiʻi 269, 281, 400 P.3d 470, 482 (2017).
Here, both exceptions to the “fruit of the poisonous
tree” doctrine apply.
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1. The State did not obtain any benefit from opening
Lee’s bedroom door.
As previously stated, one of the purposes of the
Hawaiʻi exclusionary rule is to deter the circumvention of the
Hawaiʻi Constitution’s protections. Lopez, 78 Hawaiʻi at 446,
896 P.2d at 902. Thus, this court has explained that evidence
may be excluded where “the State [is] unable to meet its burden
of showing that the discovery of the challenged evidence was not
a benefit derived from the prior illegality.” Trinque, 140
Hawaiʻi at 282, 400 P.3d at 483 (emphasis added).
Opening Lee’s bedroom door did not confer any benefit
upon the officers or the State. Notably, the officers were not
summoned to Lee’s home for the purpose of conducting a criminal
investigation. Rather, the officers were responding to a
“suicidal male call.” Assuming arguendo that the officers
unlawfully opened Lee’s bedroom door, they did not do so for the
purpose of gathering evidence, but to administer care. The
officers did not gain any benefit from opening Lee’s bedroom
door or exploit that illegal entry to procure the relevant
evidence – their observations of Lee’s actions – because the
entry did not lead the officers to search for that evidence nor
direct any investigation into its discovery. Consequently, any
evidence obtained cannot be suppressed on the basis that the
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State derived a benefit from the prior illegality. See Trinque,
140 Hawaiʻi at 282, 400 P.3d at 483.
2. Lee’s independent actions purged any potential taint
from the officers’ allegedly unlawful entry.
In addition to the fact that the police did not derive
any benefit from opening Lee’s bedroom door, Lee’s independent
actions purged any taint from the officers’ entry. In its brief
before the ICA, the State argued that the exclusionary rule does
not exclude “testimony describing [Lee’s] own illegal actions
following an unlawful search and seizure.” We agree.
The State primarily relied upon United States v.
Waupekenay, 973 F.2d 1533 (10th Cir. 1992), to assert that Lee
had no reasonable expectation of privacy once the officers
entered his bedroom, and thus, evidence of Lee’s actions did not
constitute fruit of the poisonous tree. In Waupekenay, the
United States Court of Appeals for the Tenth Circuit noted that
state and federal courts have relied upon three rationales for
allowing prosecutors to utilize evidence of new crimes committed
by defendants after illegal government intrusions. Id. at 1537-
38. First, some courts have held, as the Tenth Circuit did in
Waupekenay, that defendants “could not have had a reasonable
expectation of privacy for any actions initiated subsequently to
[the government agents’ unlawful entry] in their presence.” Id.
at 1537. Second, a number of courts have instead held that “the
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intervening act of the defendant [is] so separate and distinct
from the illegal entry or arrest as to break the causal chain.”
Id. at 1538. Third, other courts have focused on “the limited
objective of the exclusionary rule . . . and the strong public
interest in preventing and punishing force or threats of force
directed against police officers.” Id.The Tenth Circuit explained that “[t]he rationale that
is most applicable depends upon the underlying facts of the
encounter.” Id. However, the Tenth Circuit noted, “whatever
rationale is used, the result is the same: Evidence of a
separate, independent crime initiated against police officers in
their presence after an illegal entry or arrest will not be
suppressed under the Fourth Amendment.” Id. at 1538.
Although we disagree with the Tenth Circuit’s
determination regarding a defendant’s expectation of privacy, we
agree that evidence of a separate, independent crime after an
illegal entry will not be suppressed under either the Fourth
Amendment of the United States Constitution or article I,
section 7 of the Hawaiʻi Constitution. By the Waupekenay court’s
logic, a defendant would lack a reasonable expectation of
privacy in a home for any action initiated in the presence of
government agents after the government agents unlawfully entered
the home. See id. at 1537. Such an exception would swallow the
rule. Neither the Fourth Amendment of the United States
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Constitution nor article I, section 7 of the Hawaiʻi Constitution
would deter government intrusions into the privacy of an
individual’s home so long as government agents could conceivably
identify a newly initiated action following an illegal entry.
The Waupekenay court attempted to rectify this issue
by explaining that the individual would still have an
expectation of privacy in any pre-existing activities as well as
any acts that are “extension[s] of the previously initiated
illegal activity.” Id.9 However, this leads to a questionable
exercise in line drawing between pre-existing and newly
initiated activities. Notably, the Waupekenay court provided,
as an example, that if an individual was cultivating marijuana
in his living room prior to the unlawful government intrusion,
the police would not be allowed seize the pre-existing
contraband. Id. The Waupekenay court added that “an effort to
dispose of preexisting contraband following an illegal entry
does not validate the seizure of the contraband because the
disposal effort is viewed not as a new or independent criminal
act but rather as an extension of the previously initiated
illegal activity.” Id. On the one hand, the disposal of the
9 The Tenth Circuit appears to base this reasoning on the United States
Court of Appeals for the Eleventh Circuit’s articulation of a “new crime”
exception. See United States v. Bailey, 691 F.2d 1009 (11th Cir. 1982).
However, as discussed infra, this is problematic because it is not
necessarily clear where the line between a pre-existing crime and a new crime
should be drawn.
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evidence of a previous crime is inextricably linked to the
previous crime itself, and could therefore be considered an
extension of the past criminal activity. However, it is not
clear why such a connection alone neutralizes the fact that
disposal of evidence is a distinct crime. Compare 21 U.S.C.
§ 841(a)(1) (making it unlawful to knowingly or intentionally
manufacture, distribute, or dispense, possess with the intent to
manufacture, distribute, or dispense, a controlled substance),
with 18 U.S.C. § 2232(a) (criminalizing the “[d]estruction or
removal of property to prevent seizure”). Thus, we disagree
with the Tenth Circuit’s reasoning that an individual lacks a
reasonable expectation of privacy for actions initiated in the
presence of police officers who unlawfully entered the
individual’s home.
Instead, this court finds persuasive our sister
courts’ reasoning that defendants’ subsequent criminal acts,
committed of their own free will, sever the causal link between
the illegal entry and the evidence. See, e.g., State v.
Saavedra, 396 N.W.2d 304, 305 (N.D. 1986); State v. Bale, 267
N.W.2d 730, 732-33 (Minn. 1978); People v. Townes, 359 N.E.2d
402, 406 (N.Y. 1976). The causal connection between the State’s
unlawful activity and the discovery of the challenged evidence
obtained “may . . . become so attenuated as to dissipate the
taint.” Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct.
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266, 268 (1939). Thus, “the more apt question [here] is
‘whether, granting establishment of the primary illegality, the
evidence to which instant objection is made has been come at
. . . by means sufficiently distinguishable to be purged of the
primary taint.’” Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417(quoting Maguire, Evidence of Guilt, 221 (1959)).
The Minnesota Supreme Court has posited that
“[n]umerous factors bear on the application of this test,
including the temporal proximity of the illegality and the fruit
of that illegality, the presence of intervening circumstances,
and the purpose and flagrancy of the physical misconduct.”
Bale, 267 N.W.2d at 733. The Bale court emphasized that the
“last factor is especially important, because the aim of the
exclusionary rule is to deter police misconduct by removing the
incentive to disregard constitutional guarantees.” Id. We
agree.
The factors identified by the Bale court militate
against granting Lee’s motion to suppress. Based on the record
before this court, Lee committed two intervening acts that
severed the causal chain between the officers’ entry and the
resulting evidence. First, after speaking with the officers
through his bedroom door for approximately twenty minutes, Lee
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opened his bedroom door while holding a wooden sword in a
threatening manner.10 Second, once the officers entered the
room, Lee attempted to strike Sergeant Cobb with the sword.
Each of these acts was sufficient to transform the welfare check
into an exigent circumstance.
Furthermore, the officers merely sought to ensure that
Lee was unharmed, and therefore had no interest in gathering
evidence to support a criminal investigation. See also Bale,
267 N.W.2d at 733 (“More important is the fact that no intent to
secure evidence motivated the decision to custodially arrest
defendant on the misdemeanor charge.”). Consequently, any
evidence obtained by the State was collected “by means
sufficiently distinguishable to be purged of the primary taint,”
Wong Sun, 371 U.S. at 488, 83 S. Ct. at 417, because any search
of Lee’s room was neither purposeful nor sufficiently flagrant
to merit suppressing the evidence found, see Bale, 267 N.W.2d at
733.
10 The Dissent asserts that the officers should have left once Lee’s
brother withdrew his consent for the officers to be in the home. Assuming
Lee’s brother actually withdrew his consent, the withdrawal was legally
irrelevant because Lee had already committed an intervening act.
The Dissent also argues that there is evidence in the record that this
“was not actually an intervening act because Lee was not holding the wooden
sword in a threatening manner.” Respectfully, no such evidence appears in
the record. At the time Lee opened his door, Lee’s brother was sitting in
the dining room. Lee’s brother did not testify that he could see into the
room from where he sat. Instead, Lee’s brother testified that he only saw
Lee after the officers had entered Lee’s room.
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IV. Conclusion
For the foregoing reasons, the circuit court erred in
suppressing the evidence of Lee’s intervening and independent
assault against the officers. Crucially, this opinion does not
legalize the State’s intrusion into the privacy of an
individual’s bedroom. Rather, it merely allows the State to
offer evidence resulting from a person’s own unlawful actions
following the entry. Because the evidence should not have been
suppressed even if the officers unlawfully entered Lee’s
bedroom, we do not address the issue of whether an emergency aid
exception justified the search. We therefore affirm the ICA’s
July 2, 2019 Judgment on Appeal on different grounds.
Alen M. Kaneshiro /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Stephen K. Tsushima
for respondent /s/ Sabrina S. McKenna
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