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                                                   Electronically Filed
                                                   Intermediate Court of Appeals
                                                   CAAP-XX-XXXXXXX
                                                   17-JUN-2020
                                                   07:46 AM



                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


                               STATE OF HAWAI#I,
                            Plaintiff-Appellant,
                                      v.
                             STEVEN DUDLEY VEGA,
                              Defendant-Appellee


          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 September 13, 2018 Findings of Fact, Conclusions of Law
and Order Granting Defendant's Motion to Suppress Evidence (Order
Granting Motion to Suppress), entered by the Circuit Court of the
Third Circuit (circuit court).1         Defendant-Appellee Steven Dudley
Vega (Vega) was charged with, inter alia, one count of Promoting
a Dangerous Drug in the Third Degree, in violation of Hawaii
Revised Statutes (HRS) § 712-1243(1) (2014), and one count of
Prohibited Acts Related to Drug Paraphernalia, in violation of
HRS § 329-43.5(a) (Supp. 2018).2         Vega sought to suppress all


      1
             The Honorable Robert D.S. Kim presided.
      2
            The record on appeal only contained the record from the circuit
court proceedings, which did not include the complaint filed against Vega. We
take judicial notice of the complaint filed May 15, 2018, during the initial
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evidence obtained and resulting from the search of his van on the
basis that the search warrant did not particularly describe the
van as a place to be searched.          The circuit court granted the
motion.
            On appeal, the State argues that the circuit court
erred in: (1) making findings of fact that were based on evidence
not contained in the record or misstated the evidence presented;
(2) concluding that the three tarp/tent enclosures and the van
required separate search warrants and that the search warrant in
this case did not permit a search of the van; and (3) concluding
that the information supporting the search warrant could have
been old, which was an argument that Vega had not raised in his
motion to suppress.       Related to these arguments, the State
challenges Findings of Fact (FOFs) 11-17 and 21, and Conclusions
of Law (COLs) 4-6, 8, 10-12, 14, and 16-18.
            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.
Jurisdiction
            As a preliminary matter, we first address whether this
court has jurisdiction over this appeal from the Order Denying
Motion to Suppress.       Vega filed a statement contesting
jurisdiction as allowed by Hawai#i Rules of Appellate Procedure
Rule 12.1(a).     Vega argued that this appeal was invalid as an
interlocutory appeal because no application for an interlocutory
appeal was filed in the circuit court as required under HRS §
641-17 (2016).      In his Answering Brief, Vega again raises the
question of jurisdiction and also challenges the circuit court's
stay of proceedings.
            HRS § 641-13(7) (2016) expressly authorizes the State
to appeal "[f]rom a pretrial order granting a motion for the


proceedings against Vega in the District Court of the Third Circuit.   Hawai#i
Rules of Evidence (HRE) Rule 201(c) (2016).

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suppression of evidence, including a confession or admission, or
the return of property," in a criminal matter from the district
or circuit court, and states that "the order shall be stayed
pending the outcome of the appeal."         The September 13, 2018 Order
Granting Motion to Suppress is appealable under HRS § 641-13(7).
The State timely filed its Notice of Appeal on September 18,
2018, within thirty days after the circuit court's entry of the
Order Granting Motion to Suppress.         We conclude that we have
jurisdiction to hear this appeal.
          Upon the State's filing of the Notice of Appeal, the
Order Granting Motion to Suppress was stayed pending the outcome
of this appeal.     HRS § 641-13(7).      Vega's contention regarding
the circuit court's stay of proceedings therefore has no merit.
Alleged Erroneous Findings of Fact
          The State first argues that FOFs 11-16 rely on evidence
that was not contained in the record.         The State does not dispute
the factual accuracy of these FOFs but simply asserts that they
are based on evidence not in the record.          In his Answering Brief,
Vega does not attempt to controvert the State's argument that
FOFs 11-16 are not supported by evidence in the record.             Rather,
Vega asserts that the facts provided in FOFs 11-16 are irrelevant
to the circuit court's analysis of the validity of the search
warrant and suppression of the evidence.
          In FOFs 11-16, the circuit found:
                11. The search occurred on May 14, 2018, during the
          early day-time hours, including of the blue van, the windows
          to which the police broke in order to gain entry.

                12. Police removed Defendant from the back of the van
          where he had been lying on a mattress.

                  13. The police did not see contraband in plain view.

                14. The police proceeded to search the van, including
          the removal of the mattress, and found, behind the front
          passenger seat, the contraband, the possession of which
          Defendant stands charged.

                15. The police did not know and did not seem to have
          investigated who the owner of the van was, nor whether its
          registration was current, or if it was otherwise legal or if
          it was in running condition.

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                  16. It is common knowledge that people often use vans
            for sleeping in, whether on a camping trip, or as a place to
            live during homeless periods of time.

            FOF 16 reflects a matter of common knowledge, of which
judicial notice may properly be taken.           See State v. Lord, 63
Haw. 270, 272, 625 P.2d 1038, 1039 (1981); see also HRE Rule
201(b), (c).
            It appears that these FOFs 11-15 were based on Officer
Pedro Cacho's testimony given at the preliminary hearing.                The
transcript of Officer Cacho's preliminary hearing testimony was
entered into evidence as an exhibit for the motion to dismiss
which was heard on the same day as the motion to suppress.
Although the transcript was not specifically submitted in support
of the motion to suppress, its appearance in the record is
sufficient to constitute substantial evidence in support of FOFs
11-16 in the Order Granting Motion to Suppress, where the facts
themselves are not in dispute.
            The State's challenge to FOF 173 and 214 appears to be
that the findings contradict the testimony of Officer Eric Reyes
(Officer Reyes) during the hearing on the motion to suppress and
the affidavit supporting the search warrant.             The State
emphasizes that Officer Reyes was the only witness who testified
during the hearing on the motion to suppress.
            FOFs 17 and 21 are accurate representations of the
information provided in Officer Reyes's affidavit in support of
the search warrant as well as Officer Reyes's testimony.                It was
within the province of the circuit court to assess the
credibility of the witness.         State v. Jenkins, 93 Hawai#i 87,
101, 997 P.2d 13, 27 (2000).         These findings are therefore not
clearly erroneous.


      3
            FOF 17 provided: "17. The officers had advance information that the
Defendant occasionally slept in the van."
      4
            FOF 21 provided: "21. Information the police had was that Defendant
was staying there, but there was no mention of other persons being, living or
sleeping there, or not."

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Suppression of Evidence from Van
           The State next argues that the circuit court erred in
concluding that: the tarp/tent enclosures and the van were
separate units; each separate unit, including the van, required a
separate search warrant; and evidence obtained from the search of
the van should be suppressed because the search warrant did not
describe the van with particularity.        The State asserts that the
evidence obtained from the van should not have been suppressed
because the tarp/tent enclosures and the van did not constitute
separate residences/units requiring separate search warrants, and
that the search of the van was within the scope of the search
warrant.   Related to this argument, the State challenges the
following COLs:
                 4. Believing there were three separate tent-tarp
           structures on the premises and a van under one of them, the
           police had an obligation to establish probable cause for
           search warrants for each of the separate, unattached units.

                 5. This particularly applies to the van which was a
           completely enclosed, separate unit on the premises secured
           by a lock and key.

                 6. The tarp/tent structures and the van were each a
           separate residence, and there was no information provided
           that Defendant ever lived or slept in either of the other
           two tarp/tent structures.

                  . . . .

                 8. Here, the van is a separate unit (as is any
           personal mode of transportation). The other tarp/tent
           enclosures provided no specific access to the van, and there
           was no evidence the van was being used in common by anyone
           else on the premises.

                  . . . .

                 10. In the three search warrants, the van itself was
           not particularly described as a place to be searched; rather
           it appears in the description of the premises and in the
           Officer's affidavit as a place where Defendant may sleep.

                 11. That the police believed the Defendant was
           sleeping in the van made the van a special place even more
           like a separate residence than the other couple of
           tarp/tents; there is no evidence that the "main" tarp
           covered anything other than the van making it less of a
           separate enclosure than just a guard to protect the van from
           the weather, as many owners of vehicles and tarps do.




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                12. Therefore, there needed to be a separate warrant
          more particularly pinpointing the van as a place to be
          searched.

                . . . .

                14. The warrants, not being valid for the van, were
          used improperly in searching the van after the Defendant was
          removed from the van.

The State asserts that COLs 4, 10, and 12 are mixed FOFs and COLs
and were clearly erroneous.     The State also argues that COLs 5,
6, 8, 11, and 14 were wrong as they were based upon facts that
were not in evidence or they misstated the evidence.
          Case law pertaining to the validity of a search and
seizure pursuant to a search warrant is well-established:
          The Hawai#i Constitution provides that "[t]he 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 . . . and particularly
          describing the place to be searched[.]" Haw. Const. art. I,
          § 7. The particularity requirement ensures that a search
          pursuant to a warrant "limit[s] the police as to where they
          can search, for otherwise the constitutional protection
          against warrantless searches is meaningless." State v.
          Anderson, 84 Hawai#i 462, 467, 935 P.2d 1007, 1012 (1997)
          (quoting State v. Woolsey, 71 Haw. 638, 640, 802 P.2d 478,
          479 (1990)). A determination regarding whether a warrant
          satisfies the particularity requirement must be made "on a
          case-by-case basis, taking into account all of the
          surrounding facts and circumstances." Id. at 468, 935 P.2d
          at 1013 (quoting State v. Kealoha, 62 Haw. 166, 170-71, 613
          P.2d 645, 648 (1980)). While "[t]he cornerstone of such a
          determination is the language of the warrant itself," the
          "executing officer's prior knowledge as to the place
          intended to be searched, and the description of the place to
          be searched appearing in the probable cause affidavit in
          support of the search warrant" is also relevant. Id.
          (quoting State v. Matsunaga, 82 Hawai#i 162, 167, 920 P.2d
          376, 381 (App. 1996)).

State v. Rodrigues, 145 Hawai#i 487, 494, 454 P.3d 428, 435
(2019) (footnote omitted).
          In the Affidavit for Search Warrant (Affidavit),
Officer Reyes stated that he received information from three
sources identifying Vega as a methamphetamine supplier.           The
first source: "related that VEGA typically operates and
distributes his methamphetamine supply out of the campsite on
Kahei Road"; "described the campsite as being [] numerous tents


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and tarps in close proximity to each other"; "related that VEGA
will carry his methamphetamine supply in a waist pack, when
leaving the campsite; and "related that VEGA periodically sleeps
in a van parked under the tarp/tent."         The second source related
that: "VEGA lives at the property/campsite (with multiple tents)
on Kahei Road"; "VEGA also usually conceals/stores his
methamphetamine in a 'fanny bag' or waist pack"; "VEGA conducts
his drug transactions at the campsite on Kahei Road."             Finally,
Officer Reyes stated that another Hawai#i Police Department
Police Officer, Officer John Kahalioumi, provided information
from a confidential informant (CI) regarding Vega.            Officer
Kahalioumi related that the CI "specifically gave the location of
VEGA's residence as being located off of Kahei Road and described
it as a 'tent campsite'"; "related . . . that VEGA typically
stores his methamphetamine supply in a 'fanny bag' at the
campsite"; and "confirmed that there are three 'tent' structures
that VEGA utilizes on the campsite."
            Officer Reyes also made the following statements in his
Affidavit:
                  Your affiant states that based on the CI statement
            that VEGA occupies/utilizes the three separate tent/tarp
            enclosures and the corroborating statements from [the other
            informants] (that there are multiple tent/tarp enclosures on
            the property); your affiant believes that VEGA is in control
            of all three tent/tarp enclosures and the parked van under
            the main tarp/tent enclosure.

                  Your affiant further states that two of the three
            tent/tarp enclosures are not visible from Kahei Road; thus
            making a photograph or physical description impossible.
            Your affiant has attached a photograph of one of the
            tent/tarp enclosures (the main tent/tarp with the van parked
            underneath) that he is requesting to search.

            The Affidavit requested to search the following
location:
            The property/campsite known to be occupied by Steven VEGA
            located on Kahei Road, Hawi Hawai#i . . . . The
            property/campsite can be further described as three separate
            tarp/tent enclosures and in close proximity to each other
            (approximately 7 feet). The main tarp/tent enclosure also
            has a van (unknown make and/or model) parked underneath.
            Refer to Exhibit "A" for a photograph of the main tarp/tent
            enclosure visible from Kahei Road.


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          In his motion to suppress, Vega argued that "[t]he
Affidavit for Search Warrant of the campsite fail[ed] to request
with particularity a search of the van parked under the tarp.
Rather, the van [wa]s used as a description of the site, and its
presence [wa]s merely noted."    Vega maintained that the search
warrant, which adopted the same language of the property
description as in the affidavit, "fail[ed] to expressly allow
search of the van[.]"   In its opposition to the motion to
suppress, the State responded that the van, which was described
as being parked underneath the main tarp/tent enclosure, was
"clearly identified in the warrant as being an area to be
searched" and the search warrant provided "specificity that
describe[d] this campsite to the exclusion of all others."       In
his reply memorandum in support of his motion to suppress, Vega
asserted that the van itself was a separate residence requiring a
separate search warrant and also noted that the two other
tarp/tent enclosures, "if closed all around, could well have been
separate 'residences.'"
          The circuit court found that the tents and the van
constituted separate residences or units.     In reaching this
conclusion, the circuit court likened the tent/tarp enclosures to
a multiple-occupancy dwelling or building and relied in part on
this court's opinion in Matsunaga, in which we recited that
"[w]here a search warrant is directed at a multiple-dwelling or
multiple-office building, the warrant will generally be held
invalid unless it describes the particular room or sub-unit to be
searched with sufficient definiteness[.]"     82 Hawai#i at 166-67,
920 P.2d at 380-81 (emphasis omitted) (citing Annotation, Search
Warrant: Sufficiency of Description of Apartment or Room to be
Searched in Multiple-Occupancy Structure, 11 A.L.R.3d 1330, 1333,
at § 3 (1967 & Supp. 1995); 68 Am. Jur. 2d Searches and Seizures
§ 138, at 758-59 (1993 & Supp. 1996); and 1 J. Cook,
Constitutional Rights of the Accused § 3:3 at 316-19 (2d ed. 1985
& Supp.1995)).   The rationale behind this requirement in

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Matsunaga was to "preclude a search of other units in the
building occupied by innocent persons" and comply with the
constitutional mandate of particularity.        Id. at 167, 920 P.2d at
381.
          The circuit court failed to take into consideration
that,
          [a] search warrant . . . is not defective for failing to
          specify a subunit within the designated building if the
          building "from its outward appearance would be taken to be a
          single-occupancy structure and neither the affiant nor other
          investigating officers nor the executing officers knew or
          had reason to know of the structure's actual
          multiple-occupancy character until execution of the warrant
          was under way." Anderson, 84 Hawai#i at 468, 935 P.2d at
          1013 (quoting 2 [Wayne R.] LaFave, [Search and Seizure] §
          4.5(b), at 526-29 [3d ed. 1996]).

Rodrigues, 145 Hawai#i at 495, 454 P.3d at 436.
          In Rodrigues, the defendant lived in a downstairs
studio unit of a house.     Id. at 491, 454 P.3d at 432.        The
defendant moved to suppress evidence obtained from a search of
his residence on the basis that the search warrant did not state
with specificity the subunit in which he resided.          Id. at 488,
454 P.3d at 429.   "The circuit court determined that the searched
building was a multiple-occupancy building and that the affiant
officer knew or should have known that the defendant's subunit
was a separate unit."    Id.   The search warrant described the
property as "a three bedroom, 2 bathroom residence that is light
colored, and has a white colored rooftop[,]" "located at Puuhalo
Street in Kailua-Kona, Hawai#i."        Id. at 490, 454 P.3d at 431
(original brackets omitted).      In determining whether the search
warrant satisfied the particularity requirement, the supreme
court analyzed "(1) whether the structure would be viewed as a
multiple-occupancy structure from its outward appearance, and (2)
whether the affiant or other investigating or executing officers
knew or had reason to know of the structure's actual
multiple-occupancy character prior to the commencement of
execution of the warrant."     Id. at 495, 454 P.3d at 436.        The
downstairs unit had a different appearance than the remainder of

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the house, a roof that was not connected to the roof covering the
rest of the house, and an entrance that was separate from the
upstairs portion and accessible from a separate street.               Id.    The
police officer who both drafted the affidavit and executed the
search warrant had personal knowledge, prior to the execution of
the search warrant, of the details of the downstairs unit and
that multiple families had been separately living in the
building.    Id. at 496, 454 P.3d at 437.         The supreme court held
that the circuit court's unchallenged findings of fact, which
were grounded in the testimony and evidence in the record,
demonstrated that: (1) the building's outward appearance
indicated that the defendant's downstairs unit was separate and
distinct from the upstairs unit; and (2) the police officer who
both drafted the affidavit and executed the search warrant had
personal knowledge that the residence was a multi-unit dwelling.
Id. at 497, 454 P.3d at 438.         Thus, the search warrant, which did
not describe the separate downstairs unit, failed to satisfy the
constitutional particularity requirement and was invalid.                Id.
            In this case, instead of a structural building, the
property in question was described as a campsite made up of three
tarp/tent enclosures.       The circuit court made no finding that the
property was in fact a multiple-occupancy dwelling, yet the court
found that the three tarp/tent structures and the van were
separate units or residences requiring separate search warrants.
The circuit court concluded that the van was a "completely
enclosed, separate unit on the premises secured by a lock and
key"5 and that the van was "a separate unit (as is any personal
mode of transportation)."        Vega asserts that the circuit court
correctly concluded that the van constituted a separate
residential unit.      The circuit court's conclusion that each
tarp/tent enclosure and the van itself constituted a separate
unit or residence appears to have been based primarily on the

      5
            We note that there are no facts in the record expressly supporting
the circuit court's finding that the van was secured by a lock and key.

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arrangement of the tarp/tent enclosures and the van.
           Physically, the tarp/tent enclosures were separate
structures with no overlapping parts.     However, the tarp/tent
enclosures were "in close proximity to each other (approximately
7 feet)" and the van was parked underneath one of the tarp/tent
enclosures.    The information in the affidavit stated that Vega
utilized the three tarp/tent enclosures as his residence and that
he would sleep in the van.    Based on such information, Officer
Reyes stated his belief that Vega was "in control of all three
tent/tarp enclosures and the parked van under the main tarp/tent
enclosure."    Officer Reyes testified that, based on his
investigation and his sources of information, Vega was the only
individual that was identified and confirmed to be staying on the
property and sleeping in the van.     There was no evidence
indicating that there were multiple occupants of the tarp/tent
set-up.   Unchallenged FOF 20, which is binding on appeal, see
Kelly v. 1250 Oceanside Partners, 111 Hawai#i 205, 227, 140 P.3d
985, 1007 (2006), states: "No one else was found on the property
at the time the search warrants were executed, but there is no
evidence that no one else lived on the property."
           As the proponent of the motion to suppress, Vega bore
the burden of proving, by a preponderance of the evidence, that
the evidence he sought to be excluded was unlawfully secured, and
that his own Fourth Amendment rights were violated by the search
and seizure.    See Anderson, 84 Hawai#i at 467, 935 P.2d at 1012.
Vega did not prove by a preponderance of the evidence that the
campsite described in the search warrant was occupied by multiple
individuals, requiring an analysis of whether the areas of the
campsite constituted separate units or residences.      Therefore,
the circuit court, without finding that the campsite was occupied
by multiple occupants, wrongly concluded that each tarp/tent
structure and the van within the campsite required a separate
search warrant.    In the absence of a finding that other
individuals occupied the campsite, there was no danger that the

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search warrant was overbroad as to result in a search of spaces
occupied by innocent persons.    See Matsunaga, 82 Hawai#i at
166-67, 920 P.2d at 380-81.
            In arguing that the van constituted a separate
residential unit, Vega seems to assert that he had a reasonable
expectation of privacy in the van that was separate and apart
from that of the rest of the campsite.     As discussed supra, Vega
did not prove by a preponderance of the evidence that the
campsite housed multiple occupants.    The evidence shows that Vega
used the entire campsite property as his residence.        Under such
circumstances, the van was akin to a locked bedroom in a
dwelling.    Although technically a vehicle, the van was not used
as a mode of transportation, but as an area to sleep.       Indeed,
the van had not moved for months.     Like a locked room in either
shared or single occupancy dwellings, the fact that the van in
the tarp/tent enclosure may have had a lock and key did not mean
the van automatically constituted a separate residential unit.
See Anderson, 84 Hawai#i at 469, 935 P.2d at 1014 ("[A] locked
bedroom door does not, by itself, automatically elevate the
bedroom to the status of a separate residential unit." (citing
United States v. Kyles, 40 F.3d 519, 524 (2d Cir. 1994); People
v. Siegwarth, 674 N.E.2d 508, 511 (Ill. App. Ct. 1996); and State
v. Hymer, 400 So.2d 637, 639 (La. 1981))).     The search warrant
could nonetheless be valid with respect to the van if "the
objective facts available to the police officer[] at the time
[he] obtained the search warrant did not reasonably suggest that
the [subunit] was a residential unit that was separate and
distinct from the remainder of the dwelling[.]"      Id.   Here, the
facts available to Officer Reyes at the time he obtained the
search warrant were that the three tarp/tent enclosures were in
close proximity to each other, the van was parked under the main
tarp/tent enclosure, and Vega utilized and was in control of the
entire campsite.    These facts, taken together, suggested no
obvious distinction between access of the van and access of the

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rest of the campsite.
          The search warrant authorized a search of the
"property/campsite known to be occupied by Steven VEGA," which
consisted of three tarp/tent enclosures and the "van (unknown
make and/or model) parked underneath" the "main tarp/tent
enclosure."   In his affidavit, Officer Reyes stated that two of
the three tent/tarp enclosures were not visible from the public
road, making a photograph or physical description impossible.
Officer Reyes testified that the van could not be identified via
a license plate or any other description because it was covered
by the tarps.   The search warrant specifically identified the van
as a part of the campsite, and described the van to the extent
possible given the factual circumstances.     This was not a case
where the search warrant did not contain any mention of the
subunit alleged to be wrongly searched.     See, e.g., Rodrigues,
145 Hawai#i at 496-97, 454 P.3d at 437-38; Matsunaga, 82 Hawai#i
at 167, 920 P.2d at 381.    We therefore conclude that the search
warrant was constitutionally valid with respect to the van and
the circuit court erred in suppressing the evidence obtained from
the search of the van on this basis.
          Finally, the State challenges COLs 16-18 by arguing
that the circuit court erroneously ruled on the issue of the
staleness of the information supporting the affidavit because
that issue was not raised in Vega's motion to suppress.      The
State maintains that it was improper for the court to rule on the
issue because the State was deprived of an opportunity to argue
its opposition.
          Hawai#i Rules of Penal Procedure (HRPP) Rule 47 (eff.
2000) requires that a motion to the court "be in writing unless
the court permits it to be made orally" and "state the grounds
upon which it is made[.]"   "The requirement that motions be in
writing is intended to provide notice to the adverse party of the
grounds for the motion and its pendency."     State v. Kalani, 3
Haw. App. 334, 339, 649 P.2d 1188, 1193 (1982) (citing 5 Wright &

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Miller, Federal Practice & Procedure: Civil § 1191 (1969))
(looking to Hawai#i Rules of Civil Procedure Rule 7(b)(1) for
guidance in analyzing HRPP Rule 47 for purposes of a pretrial
motion to suppress).   Under HRPP Rule 12(b)(3) (eff. 2007),
motions to suppress must be raised prior to trial and may be
written or oral at the discretion of the judge.      Under HRPP Rule
12(f) (eff. 2007), "[f]ailure by a party to raise defenses or
objections or to make requests which must be made prior to trial,
within the [pretrial motion deadline], or within any extension
thereof made by the court, shall constitute waiver thereof, but
the court for cause shown may grant relief from the waiver."
(Emphasis added.)
          Here, Vega's motion to suppress did not present any
argument based on probable cause or the staleness of the
information supporting the affidavit; it merely addressed the
issue of whether the search warrant met the particularity
requirement in regards to the van.    At the suppression hearing,
the circuit court emphasized the need to look at the "four
corners" of the search warrant and allowed Officer Reyes to
testify as to his prior knowledge, indicating that it would be
addressing the sole issue briefed in the parties' memoranda--the
validity of the search warrant in terms of its particularity.
The circuit court never mentioned that probable cause for the
search warrant was an issue that needed to be addressed.
Nonetheless, during cross-examination, defense counsel questioned
Officer Reyes regarding the time period over which he obtained
the information supporting his affidavit.     Then, in COLs 16-18 of
the Order Denying Motion to Suppress, the circuit court concluded
that the information supporting the search warrant could have
been as much as two years old and stale, and on that grounds
alone, the evidence should be suppressed.
          Because Vega did not raise the issue of staleness of
the information supporting probable cause in his motion to
suppress, and Vega did not show cause for his failure to raise

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the issue, the issue should have been waived.     The State was not
provided with notice that the circuit court would be considering
the issue and the State thus had no opportunity to prepare itself
to argue and present evidence on it.     The State was unfairly
prejudiced in this regard.    Accordingly, the circuit court erred
in ruling on the issue of staleness and relying on it as a basis
for suppression.
          Based on the foregoing, the September 13, 2018 Findings
of Fact, Conclusions of Law and Order Granting Defendant's Motion
to Suppress Evidence, entered in the Circuit Court of the Third
Circuit, is vacated and this matter is remanded for further
proceedings.
          DATED:   Honolulu, Hawai#i, June 17, 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
Frank L. Miller,
for Defendant-Appellee.
                                      /s/ Keith K. Hiraoka
                                      Associate Judge




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