State v. Clowe ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
30-OCT-2020
01:01 PM
Dkt. 35 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I,
Plaintiff-Appellant,
v.
SAMUEL J. CLOWE and MICHELE UILANI ILAE,
Defendants-Appellees
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CR. NO. 3CPC-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)
Plaintiff-Appellant State of Hawai#i (State) appeals
from the December 18, 2018 "Findings of Fact, Conclusions of Law,
and Order Granting Motion to Suppress Evidence" (Suppression
Order), entered by the Circuit Court of the Third Circuit
(circuit court).1 Defendant-Appellee Samuel Clowe (Clowe) was
charged with one count each of: Attempted Promoting a Dangerous
Drug in the First Degree, in violation of Hawaii Revised Statutes
(HRS) §§ 705-500 (2014) and 712-1241(1)(b)(ii) (Supp. 2017);
Promoting a Dangerous Drug in the Second Degree, in violation of
HRS § 712-1242(1)(b) (Supp. 2017); Promoting a Harmful Drug in
the Fourth Degree, in violation of HRS § 712-1246.5(1) (2014);
and Prohibited Acts Related to Drug Paraphernalia, in violation
1
The Honorable Robert D.S. Kim presided.
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of HRS § 329-43.5(a) (Supp. 2017). Clowe was alleged to have
committed the offenses on or about March 28, 2018, along with a
co-defendant, Michelle Ilae (Ilae). Clowe filed a pre-trial
motion to suppress evidence obtained by a search warrant executed
at Ilae's residence. The circuit court granted Clowe's motion to
suppress.
On appeal, the State argues that the circuit court
erred in granting the motion to suppress. Specifically, the
State challenges the circuit court's findings of fact (FOFs) C
and H, and conclusions of law (COLs) 10, 12, 14-18 of the
Suppression Order.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve this appeal as follows.
Officer John McCarron (Officer McCarron) prepared an
affidavit in support of the search warrant, stating that he
received information from fellow Officer Nicholas McDaniel
(Officer McDaniel) regarding a male and female distributing
methamphetamine in the District of Kona, Hawai#i. Officer
McCarron was informed by Officer McDaniel that a cooperating
defendant, Francis Kekona (Kekona), provided information about
the distribution of methamphetamine and his own involvement in
the use of methamphetamine. Officer McCarron received
information from Officer McDaniel that on March 14, 2018, Officer
McDaniel contacted Kekona while Kekona was leaving the subject
residential unit. Kekona was subsequently arrested on drug and
gun charges. The affidavit states that Kekona provided the
following information to Officer McDaniel: (1) on March 14, 2018,
Kekona observed, while in the presence of Ilae and Clowe,
approximately half a pound of methamphetamine at the subject
residential unit; (2) Kekona was told that Ilae and Clowe both
went to Oahu two days before his contact with them on March 14,
2018, to pick up one pound of methamphetamine and returned to
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Kona with the methamphetamine; and (3) Kekona has visited Clowe
at the subject residential unit multiple times. The affidavit
further states that Officer Marco Segobia (Officer Segobia) spoke
with the community manager of the residential community, Tammy
Ichokwan (Ichokwan). Ichokwan did not know Kekona but recognized
the moped that police contacted Kekona with on March 14, 2018,
stated that it is frequently parked in front of the building, and
that the moped rider frequents the subject residential unit. The
affidavit also states that Officer McDaniel corroborated
information received from Kekona regarding at least three
different areas of narcotics distribution in the Kailua-Kona
area.
At the hearing on the motion to suppress, the parties
stipulated to the admission of State's Exhibit 1, which was a
copy of the subject affidavit to the search warrant, and the
court judicially noticed Kekona's prior convictions, as requested
by Clowe. No other exhibits were admitted and no witnesses were
called.
The State challenges the following FOFs of the
Suppression Order:
C. The search warrant at issue was issued by the
Court based on information provided to the police by a
confidential informant.
. . . .
H. The [confidential informant] in this case has an
extensive history of criminality. See Exhibit 2. The
[confidential informant] was convicted of two (2) felony
counts of Theft in the Second Degree in 1991, and therefore
the [confidential informant]'s reliability, given his
convictions for dishonesty, is suspect.
The State also challenges the following COLs of the
Suppression Order:
10. In Franks v. Delaware, 438 U.S. 154 (1978), the
Supreme Court developed a two-prong test clarifying what a
criminal defendant must show when challenging the veracity
of statements made in an affidavit supporting a search
warrant. If both prongs are met, the search warrant must be
voided and the fruits of the search excluded. Franks, 438
U.S. at 155-56. . . .
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. . . .
12. As a further rule, where the probable cause
determination made by a judge before the issuance of a
search warrant must rely on and take into account
information provided to the Court by a tipster and/or a
confidential informant ("CI"), the burden rests with the
government to demonstrate to the Court that the CI used in
this case has a history of providing the government with
reliable tips in the past that led to arrests of persons and
the charging of these persons with crimes.
. . . .
14. Officer [John McCarron] did not [explain in his
affidavit to the court: (1) how he concluded Kekona was
reliable and (2) how he believed Kekona was trustworthy].
See Exhibit 1. Nothing in [McCarron]'s affidavit discusses
or describes what tip Kekona provided [McCarron] in the past
that led to an arrest and to the charging of persons with
crimes. The reliability prong of the Aguillar/Spinelli
test, the first prong of the test, cannot be satisfied by
the state because [McCarron] excludes or omits completely
from his affidavit any discussions of past tips provided by
Kekona to the police that turned out to be true and that led
to someone being arrested and charged with a crime.
15. [McCarron] excludes or omits completely from this
affidavit any discussion about the credibility of his CI,
Kekona. The issue of the CI's credibility is always
relevant to the Court's probable cause determination when
the Court makes this kind of determination for the purpose
of deciding whether or not to issue a search warrant.
16. The CI, Kekona, has a long and extensive history
of criminality, including convictions involving crimes of
dishonesty. In 1991, Kekona was convicted of two (2) felony
counts of Theft in the Second Degree. As Kekona was
convicted of crimes involving dishonesty - and a felony
conviction for a crime of dishonesty is always relevant when
assessing how much weight to give the unsworn statement of a
CI - this information was material and relevant to the
Court's probable cause determination, should have been
provided to the court by [O]fficer [McCarron], was not
provided to the Court by [McCarron], and was therefore
unavailable to the court when it made its probable cause
determination in this case. Had this information been
properly disclosed by the State to the judge at the time of
the judge's probable cause determination, there is a strong
probability the judge might have concluded the CI is not
credible because CI has two (2) felony convictions for
crimes involving dishonesty.
17. The failure of [McCarron] to disclose this highly
relevant information to the magistrate judge before the
judge signed off on the warrant prevented the judge from
making a fully informed decision about the propriety of
issuing the search warrant at issue in this case. This
error or omission on the part of [McCarron] cannot be said
to be harmless beyond a doubt because the credibility of the
CI is always relevant to and material to the Court's
probable cause determination.
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18. [McCarron] was required to make this disclosure
to the issuing court - which he did not. For this reason
and for the other reasons cited to above, the evidence
seized in this case is suppressed.
In sum, the circuit court characterized Kekona as a
confidential informant and concluded that the search warrant
failed to establish the veracity of the information stated in the
affidavit to the search warrant, specifically Kekona's
credibility. The State argues that the circuit court erroneously
evaluated Kekona's credibility under the standard applicable to
confidential informants, which Kekona was not. In particular,
the State argues that the circuit court erred in granting the
motion to suppress based on its conclusions that the State did
not meet its burden of demonstrating that Kekona had a history of
providing the government with reliable tips in the past and that
the State also failed to disclose Kekona's criminal history to
the judge who approved the search warrant.
Given the full disclosure of Kekona's identity in the
affidavit, Kekona was not a confidential informant. The
affidavit specifically identified Kekona by his full name and
referred to him as a "cooperating defendant" who was arrested on
drug and gun charges after leaving the residential unit that is
the subject of the search warrant at issue.2 FOF C was therefore
clearly erroneous. Clowe also concedes this point in his
answering brief.
Although Kekona was not a confidential informant, the
information he provided served as the basis for the affidavit for
the search warrant and constituted hearsay. We must therefore
determine whether this hearsay information was sufficiently
reliable to support probable cause for the issuance of the search
warrant.
In evaluating the validity of search warrants based on
2
We acknowledge that the affidavit also seems to refer to Kekona as
the "CI" in one instance. As we have stated, however, Kekona was clearly not a
confidential informant, or CI, as he was fully identified.
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hearsay information provided by an informant, the Hawai#i Supreme
Court uses the two-part test announced in Aguilar v. Texas, 378
U.S. 108 (1964), and expounded upon in Spinelli v. United States,
393 U.S. 410 (1969). Carlisle ex. rel. State v. Ten Thousand
Four Hundred Forty-Seven Dollars in U.S. Currency ($10,447.00),
104 Hawai#i 323, 330, 89 P.3d 823, 830 (2004).3 Under this test,
the affidavit must set forth: (1) some of the underlying
circumstances from which the informant drew the conclusion
regarding criminal activity; and (2) some of the reasons which
led the affiant to believe that the informant was credible or the
informant's information was reliable. State v. Decano, 60 Haw.
205, 210, 588 P.2d 909, 913-14 (1978).
Here, the affidavit states that Kekona saw
approximately half a pound of methamphetamine at the subject
residential unit while he was in the presence of Clowe and Ilae.
Because the affidavit relates that Kekona provided this
information based on his personal observations, the first prong
of the Aguilar test was satisfied. See State v. Davenport, 55
Haw. 90, 95-96, 516 P.2d 65, 69 (1973) (holding that the first
prong of the Aguilar test was met where the informant's
conclusion that illegal activity was being conducted at the
specified location was based upon the informant's personal
observation).
As for Kekona's credibility or the reliability of the
information he provided, Kekona's identification in the affidavit
is significant. "[A]n identified informer would generally be
entitled to greater credibility than a 'faceless' informer would
3
The Hawai#i Supreme Court noted:
We continue to use the two-part Aguilar test, although
we recognize that the United States Supreme Court has
abandoned the Aguilar test in favor of a totality of the
circumstances test. Illinois v. Gates, 462 U.S. 213, 238-39,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); see also United States
v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004) (following
Illinois v. Gates).
Carlisle, 104 Hawai#i at 330 n.9, 89 P.3d at 830 n.9.
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be," State v. Joao, 55 Haw. 601, 604, 525 P.2d 580, 583 (1974),
because an identified informer can be held accountable for his or
her statements. See State v. Detroy, 102 Hawai#i 13, 19, 72 P.3d
485, 491 (2003) ("[I]f the telephone call is truly anonymous, the
informant has not placed his credibility at risk and can lie with
impunity." (quoting Florida v. J.L., 529 U.S. 266 (2000)
(Kennedy, J., concurring))). The affidavit stated that Kekona
admitted his own involvement in and familiarity with the use of
methamphetamine. Kekona also disclosed that he observed
methamphetamine at a residence which he frequently visited and
which he was leaving before he himself was arrested. Cf. United
States v. Harris, 403 U.S. 573, 584 (1971) (plurality opinion)
("Concededly admissions of crime do not always lend credibility
to contemporaneous or later accusations of another. But here the
informant's admission that over a long period and currently he
had been buying illicit liquor on certain premises, itself and
without more, implicated that property and furnished probable
cause to search."). Such admissions that are against one's penal
interest are relevant indicia of the informant's credibility.
Id. at 583-84 ("Admissions of crime, like admissions against
proprietary interests, carry their own indicia of
credibility-sufficient at least to support a finding of probable
cause to search."); State v. Yaw, 58 Haw. 485, 490, 572 P.2d 856,
860 (1977) (concluding that admissions against penal interest
have been considered to be a relevant indicia of an informant's
credibility). The affidavit also states that Officer Segobia
conducted a follow-up investigation based on Kekona's information
and confirmed that: Ilae lives at the subject residential unit,
Clowe was her boyfriend, and that Clowe has been a guest at
Ilae's unit. Officer Segobia also confirmed that Kekona's moped
has been seen frequently parked in front of the subject
residential unit. The affidavit further states that Officer
McDaniel corroborated information that Kekona provided regarding
three different areas of narcotics distribution in the
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Kailua-Kona area. See Detroy, 102 Hawai#i at 20, 72 P.3d at 492
(stating that corroboration by a law enforcement officer of
various details in an informer's report could properly support a
conclusion that the informer was truthful). Combined with the
statements that Kekona personally observed the methamphetamine at
a residence which he frequently visited and from which he was
leaving when arrested himself, and that Kekona was familiar with
Clowe and Ilae, the affidavit therefore contained sufficient
information to support Officer McCarron's conclusion that Kekona
was credible or that the information Kekona provided was reliable
and the second prong of the Aguilar test was satisfied. COL 15,
which contained a finding that McCarron failed to include any
discussion about Kekona's credibility was clearly erroneous.
In concluding that Kekona's reliability as an informant
was "suspect," the circuit court relied upon a finding that he
had an "extensive history of criminality" involving "convictions
for dishonesty," which the State argues is an embellishment. In
making this finding, the circuit court judicially noticed
Kekona's convictions for two felony counts of Theft in the Second
Degree. In the context of admissible impeachment evidence under
Hawaii Rules of Evidence (HRE) Rule 609(a), the supreme court has
held:
[A] theft offense is not, per se, a "crime of dishonesty"
. . . . Rather, to be admissible impeachment evidence
pursuant to HRE Rule 609(a), the defendant must have
committed the prior theft offense under circumstances that,
by their very nature, render his or her prior conviction of
the offense relevant to and probative of his or her veracity
as a witness.
State v. Pacheco, 96 Hawai#i 83, 100, 26 P.3d 572, 589 (2001)
(citations omitted). We find this holding to be applicable here
where Clowe asserted, and the circuit court adopted the
reasoning, that Kekona's criminal history indicated a lack of
credibility on Kekona's part. The record contains no details of
the circumstances under which Kekona committed theft in the
second degree, let alone any details relating to the convictions
that would support a finding that Kekona was unreliable. There
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being no evidence in the record to support the circuit court's
finding that Kekona's reliability was suspect because he was
convicted of crimes of dishonesty, that portion of FOF H was
clearly erroneous.
The circuit court also concluded that the affidavit's
omission of Kekona's criminal history prevented the issuing judge
from making a fully informed decision regarding the reliability
of the information provided and determining probable cause.
In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57
L. Ed. 2d 667 (1978), the Supreme Court held that a defendant
seeking an evidentiary hearing to determine whether a
facially valid affidavit contains false statements must make
a substantial preliminary showing that: (1) the affidavit
contains intentionally or recklessly false statements and
(2) the affidavit cannot support a finding of probable cause
without the allegedly false information. If a defendant
prevails at a Franks evidentiary hearing, evidence obtained
on the basis of a search warrant issued on an affidavit
containing material omissions or misrepresentations must be
excluded. In United States v. Stanert, 762 F.2d 775 (9th
Cir. 1985), amended, reh'g denied, 769 F.2d 1410 (9th Cir.
1985), [the Ninth Circuit Court of Appeals] extended Franks
to omissions of material facts and concluded that "the
Fourth Amendment mandates that a defendant be permitted to
challenge a warrant affidavit valid on its face when it
contains deliberate or reckless omissions of facts that tend
to mislead." Id. at 781.
United States v. DeLeon, 979 F.2d 761, 763 (9th Cir. 1992). On
appeal, the State argues that the circuit court's statement of
the law established in Franks failed to include that, in order to
be entitled to a Franks evidentiary hearing, the defendant must
first make a substantial preliminary showing of the two prongs.
Despite this omission, we conclude that COL 10 was otherwise a
correct statement of law.
To the extent that the State also seems to vaguely
assert that Clowe failed to make the required substantial
preliminary showing, the State seems to argue that the circuit
court should not have considered Kekona's criminal history as it
was outside the scope of the four corners of the affidavit.
However, the State also expressly states that it does not claim
any error in the court's judicial noticing of Kekona's criminal
history.
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Regardless of whether the circuit court properly
considered Kekona's criminal history in ruling on the motion to
suppress, we conclude that the circuit court erred in COLs 16-18
when it concluded that Officer McCarron was required to disclose
information regarding Kekona's criminal history and that the
omission of such information rendered the affidavit insufficient
to establish probable cause. Neither the circuit court nor Clowe
cited any authority that stands for the proposition that a
disclosure of an informant's criminal history is required of the
State, particularly where the informant has been identified and
there are other indicia of the informant's credibility or the
information's reliability. Further, as we previously stated,
there is no evidence in the record pertaining to Kekona's
previous convictions that supports a finding that such
information would have had a bearing on the probable cause
determination (i.e., that the circumstances of his past criminal
activity were relevant to and probative of his penchant for
honesty). The circuit court thus erroneously relied on the
affidavit's omission of Kekona's prior convictions as a basis for
granting the motion to suppress.
In COL 12, the circuit court correctly stated that the
State carries the burden of demonstrating that an informant has a
history of providing the government with reliable tips in the
past that led to arrests of persons and the charging of these
persons with crimes. However, the circuit court erroneously
concluded in COL 14 that the State's failure to meet this burden
rendered Kekona's information unreliable. See State v. Sherlock,
70 Haw. 271, 274, 768 P.2d 1290, 1292 (1989) ("While the history
of prior dealings between an informant and the police can be an
important element in establishing the reliability of the
informant, the absence of such a history does not of itself prove
the informant unreliable." (quoting United States v. Wong, 470
F.2d 129, 131 (9th Cir. 1972)). The circuit court erroneously
relied on these conclusions as a basis for granting the motion to
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suppress.
The affidavit to the search warrant satisfied the
two-part Aguilar test and there was probable cause for the
issuance of the search warrant. The circuit court therefore
erred in granting the motion to suppress.
Based on the foregoing, we vacate the December 18, 2018
"Findings of Fact, Conclusions of Law, and Order Granting Motion
to Suppress Evidence," entered by the Circuit Court of the Third
Circuit and remand this matter for further proceedings.
DATED: Honolulu, Hawai#i, October 30, 2020.
On the briefs:
/s/ Katherine G. Leonard
Kauanoe A. Jackson, Presiding Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellant. /s/ Derrick H. M. Chan
Associate Judge
John Knoebber,
for Defendant-Appellee.
/s/ Keith K. Hiraoka
Associate Judge
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