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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-30692
                                                              12-OCT-2012
                                                              02:30 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


        STATE OF HAWAI#I, Respondent/Plaintiff-Appellant,

                                    vs.

         MARCO RODRIGUES, Petitioner/Defendant-Appellee.


                             NO. SCWC-30692

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (ICA NO. 30692; CR. NO. 08-1-0293)

                            October 12, 2012

     RECKTENWALD, C.J., NAKAYAMA, ACOBA, AND MCKENNA, JJ.,
       AND CIRCUIT JUDGE TO#OTO#O, ASSIGNED DUE TO VACANCY

                  OPINION OF THE COURT BY ACOBA, J.

          We hold that the circuit court of the fifth circuit

(the court) properly suppressed the evidence obtained by

Respondent/Plaintiff-Appellant State of Hawai#i (Respondent)

during the unlawful search of Petitioner/Defendant-Appellee Marco

Rodrigues (Petitioner) because Respondent failed to “present

clear and convincing evidence that [the] evidence obtained in
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violation of article I, section 7 [of the Hawai#i Constitution],1

would inevitably have been discovered by lawful means[,]” State

v. Lopez, 78 Hawai#i 433, 451, 896 P.2d 889, 907 (1995).             Hence

the evidence was not admissible under the inevitable discovery

exception to Hawai#i’s exclusionary rule.          We therefore vacate

the April 3, 2012 judgment of the Intermediate Court of Appeals

(ICA) to the contrary, filed pursuant to its March 19, 2012
Amended Memorandum Opinion (mem. op.),2 vacating and remanding

the August 5, 2010 Findings of Facts, Conclusions of Law and

Order Granting Defendant’s Motion to Suppress Evidence filed by

the court, and we remand to the court for further proceedings

consistent with this opinion.

                                      I.

                                      A.

             On November 23, 2008, Officer Scott Williamson

(Officer Williamson or the officer) was at Hanamaulu Beach Park

and saw Petitioner sleeping in a vehicle that had an expired

safety sticker.     Officer Williamson approached the vehicle and
requested that Petitioner furnish his license and registration.

      1
            Article I, section 7 of the Hawai#i Constitution provides as
follows:

            The right of the people to be secure in their persons,
            houses, papers and effects against unreasonable searches,
            seizures and invasions of privacy shall not be violated; and
            no warrants shall issue but upon probable cause, supported
            by oath or affirmation, and particularly describing the
            place to be searched and the persons or things to be seized
            or the communications sought to be intercepted.

      2
            The opinion was filed by Chief Judge Craig H. Nakamura, joined by
the Honorable Alexa D.M. Fujise. The Honorable Lawrence M. Reifurth filed a
dissenting opinion.

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Petitioner was unable to produce any identification but verbally

identified himself.      The officer learned from dispatch that

Petitioner had three outstanding bench warrants for contempt of

court so he placed Petitioner under arrest.

            Officer Williamson apparently handcuffed petitioner,

although it is not clear whether his hands were in front of or

behind him.3    The officer then searched Petitioner “from top to
bottom” and “pulled [out Petitioner’s] pockets from the outside

looking for any weapons or means of escape, needles, razor

blades, strong fishing line, . . . [or] matches.”            When Officer

Williamson pulled out Petitioner’s left pocket, he discovered a

plastic baggie containing methamphetamine (hereinafter,

methamphetamine).     Officer Williamson placed Petitioner under

arrest and transported him to the cellblock at a Kaua#i Police

Department (KPD) station.       Prior to placing Petitioner in the

cellblock, Officer Williamson conducted an inventory search of

Petitioner.4


      3
            Although the court found that Petitioner was arrested and
handcuffed, there was no testimony presented in this case supporting the
court’s finding in this respect. However, in the declaration attached to
Petitioner’s Motion to Suppress, Petitioner’s counsel declared that Officer
Williamson placed handcuffs on Petitioner after arresting him.

      4
            This court has described the parameters of an inventory search as
follows:

            [T]he police have full authority to prohibit the entry of
            weapons, drugs or other potentially harmful items into jail.
            To this end, they may require internees to surrender any
            possible repositories for such items prior to incarceration.
            However, a concomitant of this wide authority to prohibit
            the entry of personal belongings which may harbor forbidden
            contents is a complete absence of authority to conduct a
            general exploratory search of the belongings themselves.
                                                                (continued...)

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                                      B.

                                      1.

            On November 25, 2008, Petitioner was charged by

complaint5 with Promoting a Dangerous Drug in the Third Degree,

Hawai#i Revised Statutes (HRS) § 712-1243.6          Prior to trial,

Petitioner filed a motion to suppress seeking to preclude

Respondent from introducing the methamphetamine recovered from
him into evidence.      Petitioner argued that the methamphetamine

could not be introduced because it was obtained during a

warrantless search of his pockets, in violation of Article 1,

section 7 of the Hawai#i Constitution and the Fourth7 and



      4
       (...continued)
            This absence of authority derives from the lack of any
            justification for such a further search inherent in the
            exception itself. Once the internee has turned over his [or
            her] possessions for safekeeping it is no longer possible
            that he [or she] may take them into jail.

State v. Kaluna, 55 Haw. 361, 373-74, 520 P.2d 51, 61 (1974) (footnote
omitted).

      5
            The complaint was originally filed in the District Court of the
Fifth Circuit. The case was committed from the district court to the court on
December 1, 2008.

      6
            HRS § 712-1243 (Supp. 2008) provides as follows:

                  § 712-1243. Promoting a dangerous drug in the third
            degree. (1) A person commits the offense of promoting a
            dangerous drug in the third degree if the person knowingly
            possesses any dangerous drug in any amount.
                  (2) Promoting a dangerous drug in the third degree is
            a class C felony.

      7
            The Fourth Amendment of the United States Constitution provides:

            The right of the people to be secure in their persons,
            houses, papers, and effects, against unreasonable searches
            and seizures, shall not be violated, and no Warrants shall
            issue, but upon probable cause, supported by Oath or
            affirmation, and particularly describing the place to be
            searched, and the persons or things to be seized.

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Fourteenth Amendments of the United States Constitution.8

            Petitioner argued that the warrantless search and

seizure was not justified as a search incident to lawful arrest

because such a search “‘is limited in scope to a situation where

it is reasonably necessary to discover the fruit or

instrumentalities of the crime for which the defendant is

arrested, or to protect the officer from attack, or to prevent
the offender from escaping.’”        (Quoting State v. Enos, 68 Haw.

509, 720 P.2d 1012 (1986).)       (Emphasis omitted.)       In addition,

Petitioner maintained that the search was not necessary to

protect Officer Williamson because the search occurred after he

was handcuffed and the officer did not conduct a pat-down search

of Petitioner’s person.       Thus, Petitioner urged that Officer

Williamson would have had no reason to believe Petitioner was

concealing any contraband.

            In its memorandum in opposition to Petitioner’s motion

to suppress, Respondent asserted that regardless of the nature of



      8
            This court has held that a search and seizure incident to lawful
arrest is an exception to the warrant requirement under the Hawai#i
Constitution. With respect to Petitioner’s challenge to the search and
seizure in this case, it must be noted that “state courts are absolutely free
to interpret state constitutional provisions to accord greater protection to
individual rights than do similar provisions of the United States
Constitution.” Arizona v. Evans, 514 U.S. 1, 8 (1995). Thus, “[i]f a state
court chooses merely to rely on federal precedents as it would on the
precedents of all other jurisdictions, then it need only make clear by a plain
statement in its judgment or opinion that the federal cases are being used
only for the purpose of guidance, and do not themselves compel the result that
the court has reached.” Michigan v. Long, 463 U.S. 1032, 1041 (1983). The
federal cases herein are used only to provide guidance as to the issues raised
by Petitioner. Therefore, this case is not decided under the Fourth and
Fourteenth Amendments of the United States Constitution. Article I, section 7
of the Hawai#i Constitution as opposed to federal law compels the result
reached herein.

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the crime, “it is per se reasonable for the arresting officer to

conduct a warrantless pat-down search of a limited nature prior

[to] or after arrest and before transport.”           (Citing State v.

Reed, 70 Haw. 107, 762 P.2d 803 (1988).)          Such searches incident

to lawful arrest, Respondent maintained, are intended to afford

an arresting officer the opportunity to recover weapons or other

means of escape, or other evidence that might be lost as a result
of concealment or destruction.        (Citing State v. Paahana, 66 Haw.

499, 666 P.2d 592 (1983).)       Thus, Respondent urges that Officer

Williamson’s practice constituted a valid search incident to

arrest.9

            Alternatively, Respondent argued that the search was

justified under the inevitable discovery exception to the

exclusionary rule which provides that evidence recovered from an

otherwise illegal search need not be suppressed “if the evidence

would have been ‘inevitably discovered’ by the police via lawful

means.”    (Citing Lopez, 78 Hawai#i at 433, 896 P.2d at 889.)
Respondent maintained that because all arrestees are subjected to

a pre-incarceration custodial search during which their pockets

are checked for drugs and weapons, Petitioner’s pockets would

have been searched and the evidence discovered prior to

Petitioner being placed in the cellblock.




      9
            As discussed herein, the ICA decided this argument in Petitioner’s
favor in Respondent’s first appeal. See State v. Rodrigues, 122 Hawai#i 229,
233, 236, 225 P.3d 671, 675, 678 (App. 2010) (Rodrigues I). Respondent did
not file an application for writ of certiorari contesting this ruling.

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                                    2.

            The court held a hearing on Petitioner’s motion to

suppress on March 3, 2009.      At the hearing, Officer Williamson

testified that he pulled Petitioner’s pockets out from the

outside “rather than just patting the outside of the pockets[,]”

because “[i]f there [was] any kind of needle or sharp object in

there, [he would] run the risk of cutting [his] hand through the
clothing.”    He also related that prior to placing Petitioner in

the cellblock, he conducted an inventory search which he

explained “insure[s] that there is no contraband taken into [the]

cell block, no weapons or dangerous instruments [are] taken in,

for the safety of all the cell block personnel, as well as the

safety of the suspect.”     He further stated that during this

process the arrestee’s pockets are searched.

            Sergeant Eric Kaui (Sergeant Kaui) also testified on

Respondent’s behalf regarding the policies and procedures for

conducting an inventory search.       Sergeant Kaui explained that as
part of the inventory search, the officer conducts a thorough

search of the arrestee, including all of the arrestee’s clothing.

            On March 17, 2009, the court entered its Finding of

Facts, Conclusions of Law and Order Granting Petitioner’s Motion

to Suppress (First Suppression Order).

                                    B.

            Respondent appealed to the ICA arguing that the court

erred in:    (1) concluding based on Enos that the inevitable


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discovery rule was inapplicable; (2) rejecting application of the

rule without entering any findings upon which its rejection was

based; and (3) concluding that Respondent failed to establish by

clear and convincing evidence that the methamphetamine was

admissible pursuant to the rule.          Rodrigues I, 122 Hawai#i at

233, 225 P.3d at 675.

            As to (1), the ICA10 stated that although, under Enos,
Officer Williamson’s search of Petitioner’s pockets was not a

valid search incident to lawful arrest, the court failed to

consider whether the inevitable discovery rule established in

Lopez applied.     Id. at 236, 225 P.3d at 678.

            As to (2), the ICA agreed that the court failed to

enter any findings regarding Respondent’s inevitable discovery

argument.    Id.   The ICA determined that the court’s failure

constituted error in light of Hawai#i Rules of Penal Procedure

(HRPP) Rule 12(e), which requires the court to “state its

essential findings on the record” “[w]here factual issues are
involved in determining a motion[.]”

            As to (3), the ICA noted that although Respondent

presented the testimony of Officer Williamson and Sergeant Kaui

to support its inevitable discovery argument, the court made no

findings regarding the credibility of the officers or the weight




      10
             The opinion in Petitioner’s first appeal was filed by Chief Judge
Craig H. Nakamura, the Honorable Katherine G. Leonard, and the Honorable Alexa
D.M. Fujise.

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to be given to their testimony in light of the other evidence

presented.   Id. at 238, 225 P.3d at 680.

          The ICA thus vacated the First Suppression Order and

remanded to the court for entry of findings and conclusions

regarding whether Respondent met its burden of establishing by

clear and convincing evidence that the methamphetamine would have

been inevitably discovered.      Id.
                                    II.

                                    A.

          Following remand, the court held hearings on June 15,

2010, June 29, 2010, and July 6, 2010.         On July 26, 2010,

Respondent filed a supplemental memorandum in support of applying

the inevitable discovery rule (supplemental memo).

          On August 5, 2010, the court filed its Findings of

Fact, Conclusions of Law and Order Granting Petitioner’s Motion

to Suppress Evidence (Second Suppression Order).           The court

entered essentially the same findings that were set forth in the
First Suppression Order, except for finding 9.          The court’s

findings were as follows:
          1.    On November 28, 2008 at approximately 7:54 a.m.,
          [Officer Williamson] saw [Petitioner] sleeping in a silver
          two-door Hyundai at Hanamalu Beach Park.
          2.    Officer Williamson noticed that the safety check and
          vehicle registration stickers were expired on the vehicle.
          3.    Officer Williamson woke [Petitioner] and asked him for
          identification.
          4.    [Petitioner] could not provide Officer Williamson any
          identification or information pertaining to the vehicle.
          5.    Officer Williamson called police dispatch to request
          any information on [Petitioner].
          6.    Officer Williamson discovered that [Petitioner] had
          three outstanding bench warrants and handcuffed him.
          7.    Officer Williamson conducted a pat-down search on
          [Petitioner’s] torso but when he got to [Petitioner’s]


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            shorts, Officer Williamson turned the pockets inside out.
            8.    Officer Williamson testified that for his safety it
            was his practice that when he conducts a search of an
            arrestee he pulls out the arrestee’s pockets from the top
            rather than doing a pat-down search.
            9.    Officer Williamson testified that he had no reason to
            believe that [Petitioner] was concealing weapons, drugs,
            contraband, or needles.
            10.   As Officer Williamson turned [Petitioner’s] left
            shorts’ pocket inside out, he found a clear [plastic] baggie
            that contained a crystal-like substance in [Petitioner’s]
            left front pocket.
            11.   Officer Williamson placed [Petitioner] in his police
            vehicle and transported him to [a cellblock.]

(Emphases added.)      The court’s conclusions 1 through 4 were also

essentially the same as the conclusions set forth in the First

Suppression Order.      The court entered new conclusions 5 through

11:
            1.    [The] Fourth Amendment to the United States
            Constitution protects the rights of citizens to be free from
            unreasonable searches and seizures.
            2.    Article I, Section 7 of the Hawaii Constitution is
            identical to the Fourth Amendment to the United States
            Constitution.
            3.    Officer Williamson was entitled to a pat-down search
            but he was not authorized to remove the [methamphetamine]
            from [Petitioner’s] pocket unless he had reason to believe
            that the items felt [were] fruits or instrumentalities of
            the crime for which [he was] arrested, or to protect the
            officer from attack, or to prevent the offender fr4om
            escaping. [Enos, 68 Haw. at 511, 720 at 1014].
            4.    Any warrantless search or seizure is presumed to be
            illegal and the burden always rests with the government to
            prove that such actions fall within a specifically
            established and well-delineated exception to the warrant
            requirement. [Ortiz, 67 Haw. at 181, 683 P.2d at 822].
            5.    One [] exception [to the warrant requirement] is the
            inevitable discovery rule adopted by the Hawaii Supreme Court in
            1995 in [Lopez, 78 Haw. at 433, 896 P.2d 889].
            6.    Regarding the inevitable discovery rule, the Hawaii
            Supreme Court “requires the prosecution to present clear and
            convincing evidence that any evidence obtained in violation
            of article I, section 7 of the Hawai#i Constitution would
            inevitably have been discovered by lawful means before such
            evidence may be admitted under the inevitable discovery
            rule.” [Lopez, 78 Haw. at 451, 896 P.2d at 889].
            7.    The Hawaii Supreme Court further noted that “clear and
            convincing evidence means evidence that will produce in the
            mind of a reasonable person a firm belief as to the facts
            sought to be established.” Id.
            8.    The inevitable discovery rule is not applicable
            because [Respondent] failed to produce clear and convincing
            evidence which would demonstrate that [Petitioner] was
            incapable of retrieving and discarding the contraband from


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           his person without an officer’s notice between the time of
           his arrest and the inventory search and that the evidence
           would have been inevitably discovered.
           9.    Officer Williamson failed to testify that [Petitioner]
           was retrained in such as way as to make him incapable of
           discarding the [plastic] baggie from his pocket between the
           time of his arrest and the inventory search had the
           [plastic] baggie not been obtained via Officer Williamson’s
           illegal search.
           10.   [Respondent] did not present any evidence that Officer
           Williamson or another officer continuously observed
           [Petitioner] after being handcuffed or that Officer
           Williamson [n]ever left [Petitioner] unattended.
           11.   Additionally, unlike the defendant in [Silva, 91 Haw.
           at 111, 979 P.2d at 1137, Petitioner] never testified or
           acknowledged that he was unable to retrieve the contraband
           after being handcuffed.

(Internal quotation marks and brackets omitted.)           (Emphases

added.)   The court again ordered the methamphetamine suppressed

and precluded its use at Petitioner’s trial.

                                   III.

                                    A.

           Respondent appealed once again.        In the second appeal,

Respondent argued to the ICA that the court erred in (1) failing

to make findings regarding the events that occurred after

Petitioner was placed in the police transport vehicle and

relevant to the inevitable discovery doctrine; (2) finding that

Petitioner could have discarded the methamphetamine before the

inventory search, although no evidence to that effect was

adduced, and there was testimony that the methamphetamine would

have been discovered during a routine inventory search; (3)

concluding that the instant case is distinguishable from Silva

because Petitioner did not testify that he was unable to retrieve

the methamphetamine from his pocket after being handcuffed,

although Petitioner’s whereabouts were unknown at the time of

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remand; (4) concluding Respondent failed to present clear and

convincing evidence that the methamphetamine would not have been

inevitably discovered during the inventory search.           State v.

Rodrigues, No. 30692, 2012 WL 917514, at *3 (App. Mar. 19, 2012)

(Rodrigues II).

           The ICA majority stated that the court “did not make

factual findings regarding the events relevant to the issue of
inevitable discovery” and instead, “appeared to require, as a

matter of law, that evidence excluding other possible scenarios

be presented by the prosecution (i.e., requiring the prosecution

to negate any possibility that the defendant could discard the

contraband without detection) in order to carry its burden of

proof.”   Id. at *5.    The ICA majority “decline[d] to endorse such

a requirement, absent any evidence that those alternative

scenarios could reasonably have occurred.”         Id.

           In the view of the ICA majority, Respondent presented

clear and convincing evidence that the methamphetamine would have
been discovered during the inventory.        Id.   The ICA majority

ordered the Second Suppression Order vacated and the case

remanded for trial.     Id.

                                    B.

           A dissenting opinion was filed by Judge Reifurth

(hereinafter, “ICA dissent”).       First, the dissent disagreed that

the court did not make factual findings relating to the issue of

inevitable discovery.     Id.   According to the dissent, the court


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added finding 9, and conclusions 9, 10, and 11,11 all of which

related to its conclusion that the inevitable discovery did not

apply in this case.

             Next, the ICA dissent pointed out that, “as it must in

an inevitable-discovery case,” Respondent “relied . . . on a

hypothetical[,]” i.e., that the methamphetamine would have been

discovered during the inventory search.          Id. at *7.    But, because

“[u]nder the inevitable discovery exception, ‘the privacy rights

of the citizens of the State of Hawai#i may turn upon the outcome

of the hypothetical[,]” the ICA dissent maintained “it is

‘incumbent upon [the appellate court] to assure that [its]

speculation is as close to correct as possible.’”            Id. at *11

(quoting Lopez, 78 Hawai#i at 451, 896 P.2d at 907).

             The ICA dissent noted that, although Lopez did not

explicitly discuss the possibility that the defendant could have

discarded or destroyed the evidence, Lopez’s ruling was “premised

specifically on the fact that “‘the record lack[ed] the clear and

convincing evidence necessary to show that the evidence recovered
. . . as a result of the illegal search, would have still been

there.’”12    Id. (quoting Lopez, 78 Hawai#i at 452, 896 P.2d at 908


      11
            The ICA dissent declared that although mislabeled, conclusions 9,
10, and 11 constituted findings that should be treated as such. Id. (quoting
Crosby v. State Dep’t. of Budget & Fin., 76 Hawai#i 332, 340, 876 P.2d 1300,
1308 (1994) (“A determination that embraces an ultimate fact is a factual
finding subject to the clearly erroneous standard of review even though
classified as a COL.”)).


      12
            As stated by the ICA dissent, clear and convincing evidence is “an
intermediate standard of proof greater than a preponderance of the evidence,
                                                                (continued...)

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(brackets omitted) (emphasis in original).          According to the ICA

dissent, Respondent failed to adduce evidence addressing the

likelihood that the methamphetamine would have remained in

Petitioner’s possession during his transport to the KPD

cellblock.    Id.

            The dissent explained that “[a]rrestees have been known

to discard evidence, and it is the State’s burden, once the
underlying search has been determined to be illegal, to establish

by clear and convincing evidence that an arrestee would not be

able to discard the evidence that the State contends would

inevitably have been discovered.”         Id.   For example, in Williams

v. State, 784 S.W. 2d 428 (Tex. Crim. App. 1990), the police

found cocaine beneath the patrol car’s backseat where the

handcuffed defendant was seated.          In State v. Jimenez, 808 A.2d

1190 (Conn. App. Ct. 2002), the police officer found cocaine in

backseat of police car after transporting defendant who had been

handcuffed and frisked for weapons.         In Simmons v. State, 681
S.E.2d 712 (Ga. Ct. App. 2009), an officer discovered cocaine

wedged in backseat of police car even though defendant had been

searched and handcuffed.




      12
        (...continued)
but less than proof beyond a reasonable doubt required in criminal cases.”
Rodrigues II, 2012 WL 917514, at *6 n.1 (citing Masaki v. Gen. Motors Corp.,
71 Haw. 1, 15, 780 P.2d 566, 574 (1989)).   It is a “degree of proof which
will produce in the mind of the trier of fact a firm belief or conviction as
to the allegations sought to be established, and requires the existence of a
fact be highly probable.” Id. (citing Masaki, 71 Haw. at 15, 780 P.2d at
574).

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            Moreover, in the ICA’s dissent’s view, Respondent’s own

evidence and arguments “tended to suggest that [Petitioner] might

have been able to access his pocket after his arrest.”              Id. at

*9.   For example, Officer Williamson testified that although “he

had no reason to believe that Rodrigues was concealing any type

of contraband, was armed, or had needles, he pulled out

[Petitioner]’s pocket to look for a means of escape.”              Id.
According to the ICA dissent, “[i]f an officer searches for a

handcuff key or lock pick in an arrestee’s pocket even though the

arrestee is to be handcuffed and transported to a cellblock for

an inventory search, it at least suggests that the officer

believes that the arrestee may be able to access his pocket while

handcuffed.”     Id.

            Finally, the dissent took issue with what it viewed as

the imposition upon Petitioner of the “a novel obligation to

first introduce evidence that an alternative scenario could

reasonably have occurred[,]” id. at *6, although a defendant “is
not required to present evidence or argument to disprove the

State’s claim of inevitable discovery.”           Id. at *9.    The ICA

dissent stated, “If we are to ‘safeguard the privacy rights of

our citizens against unlawful government intrusions,’” [Lopez, 78

Hawai#i] at 451 n.29, 896 P.2d at 907 n.29, and “if the

heightened standard is meaningful,” the prosecution’s burden

cannot be “conditioned upon the defendant . . . explaining first




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the logical failings in the State’s own hypothetical.”              Rodrigues

II,   2012 WL 917514, at *11 (brackets omitted).

                                      IV.

            Petitioner lists the following questions in his

Application filed on May 29, 2012:
            1) Whether the ICA gravely erred in failing to disregard
            [Respondent’s] points of error raised in its opening brief
            because the alleged errors were not brought to the attention
            to [sic] the [court] as required by HRAP Rule 28(b)(4). 13
            2) Whether the ICA majority gravely erred in holding that
            the [court] erred in concluding that the State failed to
            meet its burden that the packet containing methamphetamine
            would have been inevitably been [sic] discovered when the
            police conducted their inventory search prior to admitting
            [Petitioner] into the cellblock.

            Respondent did not file a Response to the Application.

                                      V.

                                      A.

                                      1.

            In connection with Petitioner’s first question,

Petitioner asserts that Respondent alleged certain findings were

erroneous but “filed a notice of appeal” instead of “bringing its

objection to the attention of the [] court.”            Hence, Petitioner

maintains Respondent cannot point to where in the record the

alleged errors were brought to the attention of the court, as


      13
            HRAP Rule 28(b) provides in relevant part as follows:

            [T]he appellant shall file an opening brief, containing
            . . .
            (4) A concise statement of the points of error . . .
            stat[ing] . . . where in the record the alleged error was
            objected to or the manner in which the alleged error was
            brought to the attention of the court or agency.
            . . . .
            Points not presented in accordance with this section will be
            disregarded, except that the appellate court, at its option,
            may notice a plain error not presented.

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required by HRAP Rule 28(b)(4).        As stated, HRAP Rule 28(b)(4)

requires in relevant part that an appellant’s opening brief

include “a concise statement of the points of error set forth in

separately numbered paragraphs, and each error must state “where

in the record the alleged error occurred[.]”           “Points not

presented in accordance with [HRAP Rule 28(b)] will be

disregarded, except that the appellate court, at its option, may
notice a plain error not presented.”         Relying on State v. Anh

Cong Bui, No. 28454, 2008 WL 2916355, at *1 (App. July 30, 2008),

Petitioner contends Respondent’s points of error should have been

disregarded, and were not noticeable for plain error.14

           In its Reply Brief to Petitioner’s Answering Brief

filed in the ICA, Respondent maintained that after remand, and at

the final hearing, the court invited Respondent to file proposed

findings and conclusions or a post-hearing memorandum.

Respondent asserted that in contrast to Bui where the defendant

did not ask the court to enter any specific findings, Respondent
did urge the court in its supplemental memo to adopt findings

regarding the inventory search and the relevant KPD policy, and




      14
            In Bui, the circuit court denied the defendant’s motion to
suppress and issued written findings and conclusions. The defendant argued on
appeal that several findings were clearly erroneous because the circuit court
failed to make findings as to the time the events referenced in the findings
took place. However, the ICA responded that the defendant did not state in
his opening brief where in the record the alleged errors were brought to the
attention of the circuit court. The ICA reviewed the defendant’s challenges
under the plain error standard of review, and determined that the circuit
court’s failure to include findings regarding the specific time of the events
was not plain error.

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to conclude that there was clear and convincing evidence of

inevitable discovery.

           Although Petitioner suggested that Respondent should

have objected to the court’s alleged error after the Second

Suppression Order was filed instead of filing a notice of appeal,

Respondent stated the only way to do that would be to file a

motion for reconsideration of the court’s Second Suppression
Order.   But, according to Respondent, “neither the HRAP nor the

HRS require [an appellant] to file a motion for reconsideration

as a pre-condition of filing a notice of appeal.”

                                    2.

           On appeal, the ICA did not address Petitioner’s

argument that Respondent’s points of error failed to comply with

HRAP Rule 28(b)(4) and therefore must be disregarded.

In the absence of a ruling by the ICA, this court must resolve

the issue.

           It appears Respondent’s points of error did not violate
HRAP Rule 28.   First, in its supplemental memo, Respondent did

urge the court to adopt findings that an inventory search was

conducted pursuant to KPD procedures, that it presented clear and

convincing evidence that the methamphetamine would have been

inevitably discovered, and that Silva was controlling.

Accordingly, Respondent did call the errors raised on appeal to

the attention of the court.




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          Furthermore, Bui, 2008 WL 2916355, at *1, which

Petitioner relies upon, is distinguishable.          Unlike in Bui, here,

Respondent did urge the court to adopt the findings it alleged

were erroneously omitted from the Second Suppression Order, and

raised arguments supporting the inevitable discovery exception in

its memorandum in opposition to Petitioner’s motion to suppress,

and in its supplemental memo.
          Finally, although Petitioner cites to several cases for

the proposition that the appellate courts have been reluctant to

notice plain error where the defendant has failed to bring

alleged error to the trial court’s attention, those cases

involved the waiver of an evidentiary objection at trial.             This

case does not involve the waiver of an evidentiary objection.

Nor does this case involve a situation in which the court was

never apprised of the position Respondent asserted on appeal.

Hence, Respondent preserved its points of error in its filings

with the court.
                                    VI.

          As to his second question, Petitioner essentially

adopts the position of the ICA dissent, that argued (1) the ICA

majority erred in concluding the court failed to make the

necessary findings relevant to inevitable discovery and (2) the

ICA majority erred in concluding Respondent met its burden of

proving the methamphetamine would have been inevitably

discovered.


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                                    A.

          With respect to the first argument, Petitioner is

correct that the court did enter findings to support its

conclusion that the inevitable discovery exception did not apply.

Petitioner maintains that finding 9 and conclusions 8, 9, 10, and

11 constitute the findings necessary to justify the court’s

ultimate conclusion.     However, all of the court’s findings relate
to its conclusion.    The court’s findings were based on the

evidence presented by Respondent concerning Petitioner’s arrest,

the unlawful search of Petitioner during which the

methamphetamine was discovered, the matters that transpired up

until the point Petitioner was placed in a cellblock, and the

inventory search.    Based on this evidence, the court determined

Respondent had failed to prove inevitable discovery.

                                    B.

          Respondent argued on appeal to the ICA that the court

erred by failing to make findings regarding the events that
occurred after Petitioner was placed in the police transport

vehicle, and that the court erred in failing to make findings

regarding Officer Williamson’s credibility and the weight that

should be given to his testimony.

          First, any absence of findings regarding the events

that occurred during the transport of Petitioner may be

attributed to Respondent.      To reiterate, it is Respondent that

had the burden of producing clear and convincing evidence that


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the methamphetamine would have been discovered during the

inventory search.    Consequently, as Petitioner asserts,

Respondent failed to adduce relevant evidence regarding, for

example, how Petitioner was restrained, whether Petitioner was

able to access his pockets, whether Petitioner was being observed

up until the point the inventory search was conducted or whether

the back of the police vehicle was searched for contraband
immediately prior to and after transport of Petitioner.            Indeed,

the court stated that Respondent “did not present any evidence

that Officer Williamson or another officer continuously observed

[Petitioner] after being handcuffed or that Officer Williamson

[n]ever left [Petitioner] unattended.”         Conclusion 10.

          Next, as related, Respondent argued on appeal to the

ICA that the court erred by not making findings relating to the

inventory search of Petitioner, including his pockets, and KPD’s

procedures for such searches.       Respondent urged that the case

should be remanded to the court with instructions for the court
to enter a finding that Officer Williamson transported Petitioner

to a KPD cellblock, and subjected him to a routine inventory

search, including a search of his pockets.         But, it is apparent

from the court’s conclusions that the court found the inventory

search did take place.

          For example, in conclusion 8, the court states that

there was no evidence that Petitioner was incapable of retrieving

and discarding the methamphetamine “from his person without an


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officer’s notice between the time of his arrest and the inventory

search[.]”   (Emphasis added.)      Likewise, conclusion 9

incorporates the court’s finding that there was no evidence that

Petitioner could not discard the methamphetamine “between the

time of his arrest and the inventory search[.]”           (Emphasis

added.)   There was no reason to remand the case to the court for

an express finding that Officer Williamson conducted a routine
inventory search on Petitioner’s person inasmuch as Petitioner

never disputed such inventory search took place, and it is

obvious that the court accepted Officer Williamson’s testimony

that the inventory search had been conducted.

          Additionally, notwithstanding the ICA majority’s

suggestion that the court was required to make express findings

regarding credibility and weight, a court is not required to make

express findings regarding credibility and weight.           See State v.

Patterson, 58 Haw. 462, 468, 571 P.2d 745, 749 (1977) (“The power

to judge credibility of witnesses, resolve conflicts in
testimony, weigh evidence and draw factual inferences, is vested

in the trial court[,]” and “[o]n appeal all presumptions favor

proper exercise of that power, and the trial court’s findings

whether express or implied must be upheld if supported by

substantial evidence.”)     (Emphasis added.); see also State v.

Ganal, 81 Hawai#i 358, 370, 917 P.2d 370, 382 (1996) (noting that

“[i]n making its finding and order, the circuit court was

required to weigh the testimony of the witnesses and judge their


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credibility[,]” and “‘the trial court’s findings whether express

or implied must be upheld if supported by substantial evidence’”

(quoting State v. Ganal, 81 Hawai#i 358, 370, 917 P.2d 370, 382

(1996))) (emphasis added).

            Moreover, the court’s ultimate conclusion in this case

did not hinge on the weight that was given to Officer

Williamson’s testimony.       Indeed, the court accepted Officer
Williamson’s testimony as true.        None of the parties disputed his

testimony.    The court concluded based on Respondent’s evidence,

and particularly Officer Williamson’s testimony, that Respondent

had not established by clear and convincing evidence that the

methamphetamine would have been inevitably discovered in the

inventory search had it “not [otherwise] been obtained via

Officer Williamson’s illegal search.”         Conclusion 9.      Because

Respondent “failed to produce evidence which would demonstrate

that [Petitioner] was incapable of retrieving and discarding the

contraband from his person without an officer’s notice between
the time of his arrest and the inventory search[,]” and,

therefore, that the methamphetamine “would have been inevitably

discovered[,]” the court concluded that the “inevitable discovery

rule [was] not applicable” in this case.          Conclusion 8.15


      15
            Although Petitioner maintains conclusions 8 through 11 are
findings, first, conclusions 8, 9, 10, and 11, may also be viewed as
“inference[s] on a question of law, [i.e., whether Respondent had established
by clear and convincing evidence that the methamphetamine would have been
inevitably discovered,] made as a result of [the] factual showing” by
Respondent. Black’s Law Dictionary at 329. In other words, conclusions 8-11
reflect an “application of [the clear and convincing] legal standard” relating
to the inevitable discovery exception. Lundgren v. Freeman, 307 F.2d 104, 115
                                                                (continued...)

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            Hence, the court included in its order sufficient facts

from which this court can ascertain the steps by which the court

reached its ultimate conclusion regarding the inevitable

discovery issue, and the findings were thus sufficient.             See Nani

Koolau Co. v. K & M Const., Inc., 5 Haw. App. 137, 140, 681 P.2d

580, 584 (App. 1984) (“If [the] findings include sufficient

subsidiary facts to disclose to the reviewing court the steps by
which the lower court reached its ultimate conclusion on each

factual issue, then the findings are adequate.”).            Plainly, the

ICA erred in concluding that the court did not make sufficient

findings relating to the inevitable discovery issue.

                                    VII.

            Respondent maintains that, in Silva, 91 Hawai#i at 121,

979 P.2d at 1145, the ICA held under similar facts that the State

presented clear and convincing evidence that contraband obtained

during a search incident to arrest would inevitably have been

discovered during a pre-incarceration search.           In Silva, the
defendant moved to suppress items recovered from his pocket

following his arrest.      91 Hawai#i at 113-14, 979 P.2d at 1139-40.

      15
        (...continued)
(9th Cir. 1962).
             However, as Petitioner notes, the foregoing conclusions
incorporate findings. For example, conclusion 8 was based on the court’s
apparent finding that Respondent failed to present evidence that Petitioner’s
was retrained in such a manner so as to make him incapable of retrieving items
from his pockets or discarding the methamphetamine between the time of his
arrest and the inventory search. Conclusions 8, 9, and 10 were based upon the
court’s finding that Respondent did not present any evidence that Petitioner
was incapable of discarding the methamphetamine between the time of his arrest
and the inventory search. Finally, conclusion 11 reflects the court’s finding
that Respondent did not present evidence such as that in Silva that Petitioner
was unable to reach the contraband while cuffed.


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The officer testified at the hearing on the motion to suppress

that the pipe recovered from the defendant’s pocket was sticking

out from his pocket and in plain view.         Id.    The defendant on the

other hand testified that the pipe was not in plain view.             Id. at

114, 979 P.2d at 1140.     According to the Silva majority, the

circuit court did not enter any findings as to the validity of

the search of the defendant’s pockets and “therefore did not
resolve the credibility issue presented by the conflicting

testimonies . . . regarding whether the seized evidence was in

plain view.”   Id. at 120, 979 P.2d at 1146.          “Instead, the

circuit court concluded that the evidence would have inevitably

been discovered during an inventory search of Defendant conducted

upon his arrival and booking at the police station.”            Id.

          On appeal, the Silva majority determined that the

prosecution had “met its burden of proof.”           Id.   However, the

grounds upon which the evidence was admissible in Silva is

ambiguous.   See id. at 122, 979 P.2d at 1147-48 (Acoba J.,
concurring) (“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 [the d]efendant’s recounting of the

episode.”)   Hence, we do not find Silva to be controlling in this

case.

          Distinguishing Silva, the ICA dissent acknowledged that

Silva involved a similar post-arrest transport to the cellblock


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where an inventory search would be conducted.          (Citing Silva, 91

Hawai#i at 121, 979 P.2d at 1147).         However, as the ICA dissent

correctly observed, Silva, did not need to discuss whether the

defendant could have discarded or destroyed the evidence because

the defendant testified that he was unable to access his pockets

while his hands were handcuffed.         Id. (citing 91 Hawai#i at 114,

979 P.2d at 1140).    In the instant case, Respondent’s own
evidence suggested that Petitioner might have been able to access

his pockets even after he was handcuffed:
          Officer Williamson testified that despite the fact that he
          had no reason to believe that [Petitioner] was concealing
          any type of contraband, was armed, or had needles, he pulled
          out [Petitioner]’s pocket to look for a means of escape. In
          [Respondent’s] opposition to the Motion to Suppress,
          [Respondent] posited that an officer needed to pull out an
          arrestee's pocket to look for a “means of escape like a
          handcuff key or lock pick.”

Rodrigues II, 2012 WL 917514, at *9 (Reifurth J., dissenting).

                                   VIII.

                                    A.

          With respect to Petitioner’s second argument, it must
be observed that Hawai#i’s inevitable discovery exception to the

exclusionary rule is unlike the federal exception.           The

inevitable discovery exception was first adopted by the United

States Supreme Court in Nix v. Williams, 467 U.S. 431 (1984)

(Willaims II).    In Williams II, a 10-year-old girl disappeared

from a YMCA.   Id. at 434.      Shortly after she disappeared,

Williams was seen leaving the YMCA carrying a large bundle

wrapped in a blanket.     Id.



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           Police suspected that Williams had left the girl or her

body somewhere between Des Moines and a rest stop where the

girl’s clothing and a blanket similar to the one Williams was

seen carrying were discovered.       Id. at 435.      Two hundred

volunteers divided into teams and searched that area.             Meanwhile,

Williams turned himself in to the local police in Davenport, and

contacted an attorney in Des Moines.         Id.    Des Moines police
informed Williams’ counsel that they would bring Williams back to

Des Moines without questioning him.         Id.    However, during

Williams’ transport, one of the detectives suggested that

Williams should help them locate the young girl’s body before it

became covered by the snow so that she could have a “Christian

burial.”   Id. at 435-36.     At some point thereafter, Williams

agreed to direct the officers to the girl’s body.           Id.   At the

time her body was discovered, one search team was two and a half

miles away.   Id.

           In Williams’ first trial, his counsel moved to suppress
evidence of the girl’s body and all related evidence on the

ground that such evidence was the “fruit” of an illegally

obtained statement.     Id. at 437.      The trial court denied

Williams’ motion.    Id.   The Supreme Court held in Brewer v.

Williams, 430 U.S. 387, 404-06 (1977) (Williams I), that the

incriminating statements should have been suppressed because they

were obtained in violation of Williams’ right to counsel, and

remanded for a new trial.      Williams I noted, however, that the


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evidence “‘might well be admissible on the theory that the body

would have been discovered in any event, even had incriminating

statements not been elicited from Williams.’”             Id. at 406 n.12.

             In Williams’ second trial, the trial court admitted

evidence relating to the girl’s body, on the ground that even if

Williams had not led the police to the girl’s body, it would have

been discovered within a short time.           Williams II, 467 U.S. at
436.    In Williams II, the Supreme Court was urged to adopt and

apply an inevitable discovery exception to the exclusionary rule.

Id. at 440.

             Williams II explained that the independent source

doctrine allows admission of unlawfully obtained evidence when

such evidence is also discovered by means wholly independent of

any constitutional violation.          Although inapplicable to the case

before it, Williams II concluded that the independent source

doctrine was “wholly consistent with and justifie[d] adoption of

the inevitable discovery exception to the exclusionary rule.”
Id. at 432.      In light of this principle, the Supreme Court

announced the following rule:          “If the prosecution can establish

by a preponderance of the evidence that the information

ultimately or inevitably would have been discovered by lawful

means[,] . . . then the deterrence rationale has so little basis

that the evidence should be received.”            Id. at 444.    Williams II

ultimately determined the girl’s body inevitably would have been

found.     Id. at 449-50.


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          In dissent to the Williams II majority, Justice Brennan

stated that “unconstitutionally obtained evidence may be admitted

at trial if it inevitably would have been discovered in the same

condition by an independent line of investigation that was

already being pursued when the constitutional violation

occurred.”   Id. at 459 (Brennan, J., dissenting).          He believed

the majority overlooked “the crucial difference between the
‘inevitable discovery’ doctrine and the ‘independent source’

exception from which it is derived.”        Id.   Justice Brennan

pointed out that, when properly applied, the independent source

exception “allows the prosecution to use evidence only if it was,

in fact, obtained by fully lawful means[,]” and thus, the

doctrine “does no violence to the constitutional protections that

the exclusionary rule is meant to enforce.”          Id.

          On the other hand, under the inevitable discovery

exception, “evidence sought to be introduced at trial has not

actually been obtained from an independent source, but rather
would have been discovered as a matter of course if independent

investigations were allowed to proceed.”          Id. (emphasis added).

In other words, according to Justice Brennan, “[t]he inevitable

discovery exception necessarily implicates a hypothetical finding

that differs in kind from the factual finding that precedes

application of the independent source rule.”          Id.   In Justice

Brennan’s view, in order to ensure that the hypothetical “is as

narrowly confined to circumstances that are functionally


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equivalent to an independent source, and to protect fully the

fundamental rights served by the exclusionary rule, the

government should “satisfy a heightened burden of proof before it

is allowed to use such evidence[,]” i.e., clear and convincing

evidence.     In State v. Lopez, 78 Hawai#i 433, 451, 896 P.2d 889,

907 (1995), this court adopted Justice Brennan’s view.

                                    B.
            In Lopez, Sergeant Stephen Magnani (Sergeant Magnani),

who was conducting an investigation of a drug-related conspiracy,

determined that a substantial amount of cocaine had been

delivered to a house on Kala street in Puna, Hawai#i.           78 Hawai#i

at 437, 896 P.2d at 893.      Unrelated to the Sergeant’s

investigation, three armed marked men broke into the house of

Kelly and Daniel Hauanio, located on Kala street, and robbed

them.   Id.    An investigating officer suspected that the robbery

was drug-related.     Id.   While the Hauanios were staying in a

hotel following the robbery, Kelly’s mother, without the
Hauanios’ permission, volunteered to take Detective Steven

Guillermo (Detective Guillermo) to the Hauanios’ home to continue

the robbery investigation.      Id. at 438, 896 P.2d at 894.

            After entering the home, the detective confiscated a

cellophane container filled with cocaine that he found in the

master bedroom.     Id.   Based on information relating to the

robbery and the discovery of the cocaine in the master bedroom,

officers were able to obtain a search warrant for the Hauanio


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home.   Id.   Upon execution of the search warrant, the officers

discovered evidence linking the Hauanios to the drug delivery on

Kala street and evidence connecting them to the drug-conspiracy

that was being investigated.       Id.

           Prior to the Hauanios’ trial for several drug offenses,

the Hauanios moved to suppress the evidence obtained from their

home.   Id. at 440, 896 P.2d at 896.       This court held that the
initial search of the Hauanio’s home was unconstitutional.             Id.

at 447, 896 P.2d at 903.      Lopez determined that the evidence was

not obtained from an independent source, i.e., execution of the

search warrant, because there was no information independent of

Detective Guillermo’s illegal entry of the Hauanio’s home to

support the warrant.     Id. at 448, 896 P.2d at 904.

           Next, this court considered the prosecution’s argument

that, although the entry into the Hauanio’s home was unlawful,

the evidence should not be suppressed because it would have been

inevitably discovered by lawful execution of Detective
Guillermo’s search warrant or by the investigation conducted by

Sergeant Magnani.    Id. at 447, 896 P.2d at 903.         In response,

this court adopted the inevitable discovery exception announced

in Willaims II.    However, unlike “the United States Supreme Court

[majority which] has unequivocally stated that the primary

purpose of the exclusionary rule on the federal level is to deter

illegal police conduct,” this court has said that “an equally

valuable purpose of the exclusionary rule under [the Hawai#i


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Constitution] is to protect the privacy rights of our

[residents].”    Id. at 446.    In other words, our constitution has

“[t]he added protection against governmental ‘invasions of

privacy[.]’”    Id. at 451, 896 P.2d at 907.

          Lopez agreed with Justice Brennan that “the inevitable

discovery exception necessarily requires speculation as to the

outcome of hypothetical circumstances.”         Id.   In order “to ensure
that the added protection in the Hawai#i Constitution [of

protecting individual privacy] is not vitiated by a ‘bad guess,’”

this court held that “evidence may be admitted under the

inevitable discovery exception to the exclusionary rule” only if

the prosecution “present[s] clear and convincing evidence that

any evidence obtained in violation of article I, section 7, would

inevitably have been discovered by lawful means[.]”           Id.   Lopez

noted that this “higher burden of proof would assist in serving

one of the main purposes of the exclusionary rule . . . i.e.,

safeguarding the privacy rights of our [residents] against
unlawful governmental intrusions.”        Id. n.29.

          Applying the foregoing to the case before it, this

court first rejected the prosecution’s argument that the evidence

would have been inevitably discovered by lawful execution of

Detective Guillermo’s warrant because the information in support

of the warrant was based on observations made when entry was made

without the Hauanios’ consent.       Id. at 448, 896 P.2d at 904.

Second, this court rejected the argument that the contraband


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would have been discovered pursuant to Sergeant Magnani’s drug-

conspiracy investigation on Kala street.            Id. at 452, 896 P.2d at

908.    This court reasoned that although Sergeant Magnani was

“suspicious” that cocaine had been delivered to one of the homes

on Kala street, he had not determined who occupied the houses,

and there was no evidence that Sergeant Magnani possessed

information necessary to obtain a search warrant to search the
Haaunio home.      Id.   In addition, even if Sergeant Magnani might

have eventually obtained a search warrant, “the record lack[ed]

the clear and convincing evidence necessary to show that the

evidence recovered from the [defendants’] home as a result of

[the] illegal search, would have still been there.”              Id.

(emphasis added).

                                      VIII.

                                       A.

             As Lopez declared, our exclusionary rule differs from

its federal counterpart insofar as it protects individual privacy
rights.     78 Hawai#i at 446, 896 P.2d at 902; accord State v.

Kahoonei, 83 Hawai#i 124, 131, 925 P.2d 294, 301 (1996); see also

State v. Dixon, 83 Hawai#i 13, 23, 924 P.2d 181, 191 (1996)

(stating that “article I, section 7 of the Hawai#i Constitution

provides broader protection than the [F]ourth [A]mendment to the

United States Constitution because it also protects against

unreasonable invasions of privacy”); State v. Navas, 81 Hawai#i

113, 123, 913 P.2d 39, 49 (1996) (stating that “article I,


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section 7 of the Hawai#i Constitution” provides a “more extensive

right of privacy . . . than that of the United States

Constitution”); State v. Tanaka, 67 Haw. 658, 662, 701 P.2d 1274,

1276 (1985) (“In our view, article I, § 7 of the Hawai#i

Constitution recognizes an expectation of privacy beyond the

parallel provisions in the Federal Bill of Rights.”).            This

“added protection against governmental invasions of privacy”
demands that speculation regarding whether evidence obtained in

violation of one’s individual privacy would have been inevitably

discovery be “as close to correct as possible.”           Id. at 451, 896

P.2d at 907.   In other words, “to ensure that the added

protection in the Hawai#i Constitution is not vitiated by a ‘bad

guess,’” Respondent was required “to present clear and convincing

evidence that [the methamphetamine] obtained in violation of

[Petitioner’s constitutional rights] would inevitably have been

discovered by lawful means before such evidence may be admitted

under the inevitable discovery exception to the exclusionary
rule.”   Id.

           Here, the “hypothetical[,]” id., posited by Respondent

was that, although the methamphetamine was unlawfully seized, it

would have been inevitably discovered during the inventory search

prior to placing Petitioner in the KPD cellblock.           However,

without evidence establishing that the methamphetamine would have

remained in Petitioner’s pocket until the inventory search was

conducted, or that any effort by him to discard it would have


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been detected, there was no clear and convincing evidence that

the methamphetamine would have been otherwise inevitably

discovered during the inventory search.         In other words, the

court could not be sure that Respondent’s asserted hypothetical

was “as close to correct as possible.”         Id.

                                    B.

          Furthermore, unlike in Williams II and Lopez, there
were no “independent line[s] of investigation that w[ere] already

being pursued when the constitutional violation occurred[,]” and

nothing establishing that the evidence would have been

“discovered as a matter of course if independent investigations

were allowed to proceed.”      Williams II, 467 U.S. at 459 (Brennan,

J., dissenting).     Here, Officer Williamson agreed on cross-

examination that he emptied Petitioner’s pockets after his arrest

for contempt of court, without first patting them down, and

without any “reason to believe . . . [Petitioner] was concealing

any type of contraband[,]” thus precipitating the event that
produced the contraband.      It was this search that the ICA

determined in Rodrigues I, 122 Hawai#i at 233-234, 225 P.3d at

675-76, violated the Hawai#i Constitution.           Recovery of the

methamphetamine was not the subject of any other lawful

investigation.    No facts indicate another investigation was being

conducted that would have lawfully resulted in the recovery of

the methamphetamine from Petitioner.        See Lopez, 78 Hawai#i at

452, 896 P.2d at 908.


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          Under the ICA’s majority conclusion that the

methamphetamine would have been inevitably discovered in an

inventory search, virtually every unconstitutional search

incident to arrest, or any unconstitutional search of a defendant

after his or her arrest, but prior to his or her arriving at the

cellblock, would be validated upon a showing by the State that,

after the search, the defendant was transported to the cellblock
and an inventory search conducted.        This would defeat discrete

exceptions to the general searches and seizures that are

prohibited in Article 1, section 7 of the Hawai#i Constitution.

Moreover, this would place the courts in the position of engaging

in speculative analysis of hypothetical scenarios in virtually

every instance where established and well-delineated bases for

exceptions to the warrant requirement would otherwise apply.               See

Ortiz, 67 Haw. at 184, 683 P.2d at 825 (stating that “warrantless

searches are presumptively unreasonable unless they fall within a

specifically-established and well-delineated exception to the
warrant requirement”).

          The evidence presented in this case does not meet the

heightened burden of proof established in Lopez.           Without

evidence other than that of Petitioner’s arrest and transport to

the cellblock, there can be no assurance that the methamphetamine

“would have still been there” at the time of the lawful inventory

search, Lopez, 78 Hawai#i at 452, 896 P.2d at 908, and

consequently, no way for the court to ensure that our


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constitution’s protection of the privacy rights would not be

“vitiated by a ‘bad guess[.]’”       Id. at 452, 896 P.2d at 908.          The

evidence was obtained by the unilateral act of Officer Williamson

and was not the product of an “independent line of

investigation,” Williams II, 467 U.S. at 459 (Brennan, J.

dissenting), that would have culminated in discovery of the

contraband.   Under these circumstances, it cannot be concluded
that the court was wrong in holding that Respondent failed to

present clear and convincing evidence that the methamphetamine

would have been discovered during the inventory search, and the

ICA majority gravely erred in concluding otherwise.

                                    IX.

          In accordance with the foregoing, we vacate the April

3, 2012 judgment of the ICA, which vacated and remanded the

August 5, 2010 Findings of Facts, Conclusions of Law and Order

Granting Defendant’s Motion to Suppress Evidence filed by the

court, affirm said order, and remand to the court for further
proceedings consistent with this opinion.

Craig W. Jerome,                     /s/ Mark E. Recktenwald
for petitioner
                                     /s/ Simeon R. Acoba, Jr.
Charles A. Foster,
for respondent                       /s/ Paula A. Nakayama

                                     /s/ Sabrina S. McKenna

                                     /s/ Fa#auuga L. To#oto#o




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