    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-XX-XXXXXXX
                                                              13-DEC-2019
                                                              09:13 AM


           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


                          STATE OF HAWAII,
                   Respondent/Plaintiff-Appellee,

                                    vs.

                    RODNEY ROBERT RODRIGUES, JR.,
                   Petitioner/Defendant-Appellant.


                            SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-XX-XXXXXXX; 3CPC171000034)

                           DECEMBER 13, 2019

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.


          Our caselaw has established that a search warrant for

a multiple-occupancy building must describe with particularity

each unit to be searched so as to preclude the indiscriminate

search of one or more subunits.       The defendant in this case

moved to suppress evidence gathered from a search of his
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


residence asserting that the search warrant did not state with

specificity the subunit he resided in.

          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.     The search warrant did not describe the

defendant’s subunit with particularity, the court concluded, and

thus the search violated the defendant’s constitutional rights.

The court granted the defendant’s motion to suppress in an order

that included detailed findings of facts and conclusions of law.

          The State appealed the order.         The Intermediate Court

of Appeals (ICA) disagreed with the circuit court’s finding that

the building was a multiple-occupancy building and held that the

court erred in granting the defendant’s motion to suppress.

          Based upon our precedent as to findings of facts

unchallenged on appeal and our law involving multiple-occupancy

buildings, we conclude that the ICA erred and accordingly vacate

the ICA’s Judgment on Appeal and remand the case for further

proceedings consistent with this opinion.

                I. BACKGROUND AND PROCEDURAL HISTORY

          Rodney R. Rodrigues, Jr., was arrested as a result of

a May 18, 2017 search of his residence on the island of Hawaii

that uncovered various drugs and drug paraphernalia.            Rodrigues

was subsequently charged by complaint in the Circuit Court of
                                2
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


the Third Circuit (circuit court) with two counts of Promoting a

Dangerous Drug in the First Degree in violation of Hawaii

Revised Statutes (HRS) § 712-1241(1)(a),1 three counts of

Promoting a Dangerous Drug in the Third Degree in violation of

HRS § 712-1243(1),2 two counts of Promoting a Harmful Drug in the

Fourth Degree in violation of HRS § 712-1246.5(1),3 one count of

Promoting a Detrimental Drug in the Second Degree in violation

of HRS § 712-1248(1),4 and one count of Prohibited Acts Relating



     1
           HRS § 712-1241(1)(a) (2014 & Supp. 2016) provides as follows:

           (1) A person commits the offense of promoting a dangerous
           drug in the first degree if the person knowingly:

                 (a) Possesses one or more preparations, compounds,
                 mixtures, or substances of an aggregate weight of:

                        (i) One ounce or more, containing
                        methamphetamine, heroin, morphine, or cocaine
                        or any of their respective salts, isomers, and
                        salts of isomers; or

                        (ii) One and one-half ounce or more, containing
                        one or more of any of the other dangerous
                        drugs[.]
      2
            HRS § 712-1243(1) (2014) provides that, “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.”
     3
            HRS § 712-1246.5(1) (2014) provides that, “A person commits the
offense of promoting a harmful drug in the fourth degree if the person
knowingly possesses any harmful drug in any amount.”
     4
           HRS § 712-1248 (2014) provides the following in relevant part:

           (1) A person commits the offense of promoting a detrimental
           drug in the second degree if the person knowingly:

                 (a) Possesses fifty or more capsules or tablets
                 containing one or more of the Schedule V substances;

                                                           (continued . . .)
                                      3
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


to Drug Paraphernalia in violation of HRS § 329-43.5(a).5

                    A. The Investigation and Warrant

          On May 11, 2017, Officer Marco Segobia of the Hawaii

Police Department submitted an Affidavit for Search Warrant

(Affidavit) to the District Court of the Third Circuit (district

court).   The Affidavit included the following statements.

Officer Segobia received information from a confidential

informant (CI) who claimed to have observed Rodrigues sell

methamphetamine multiple times in exchange for U.S. currency.

At the direction of Officer Segobia, the CI conducted a

controlled purchase of methamphetamine from Rodrigues’ residence


(. . . continued)

                (b) Possesses one or more preparations, compounds,
                mixtures, or substances, of an aggregate weight of
                one-eighth ounce or more, containing one or more of
                the Schedule V substances;

                (c) Possesses one or more preparations, compounds,
                mixtures, or substances, of an aggregate weight of
                one ounce or more, containing any marijuana; or

                (d) Distributes any marijuana or any Schedule V
                substance in any amount.
     5
          HRS § 329-43.5(a) (2010 & Supp. 2016) provides the following:

          Except as provided in subsection (e), it is unlawful for
          any person to use, or to possess with intent to use, drug
          paraphernalia to plant, propagate, cultivate, grow,
          harvest, manufacture, compound, convert, produce, process,
          prepare, test, analyze, pack, repack, store, contain,
          conceal, inject, ingest, inhale, or otherwise introduce
          into the human body a controlled substance in violation of
          this chapter. A violation of this subsection shall
          constitute a violation subject to a fine of no more than
          $500.


                                     4
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


located at the North West corner of the intersection of Konalani

Street and Puuhalo Street.       The residence was a two story light

colored wood siding structure with a white colored rooftop.

Officer Segobia maintained constant surveillance as the CI

walked to, entered, and exited the residence.           The CI turned

over a zip packet, containing an unspecified amount of clear

crystal substance that obtained a presumptive positive result

for methamphetamine after Officer Segobia tested it.

            The Affidavit requested to search the following

location:

            A residence located within the County and State of Hawaii
            and within the District of Kona. Your affiant describes
            the residence as a three bedroom, 2 bathroom residence that
            [is] light colored, [and] has a white colored rooftop. The
            residence is located at [] Puuhalo Street in Kailua-Kona,
            Hawaii. Your affiant checked the Hawaii County Property
            Tax website and located the residence, which is owned by
            Yolanda M. RODRIGUES of address [] Puuhalo Street, Kailua-
            Kona, Hawaii 96740. . . . To include but not limited to
            all rooms, and other parts therein, the patio or lanai of
            such unit, and any attached garages and carport, attached
            storage rooms, garbage cans and containers located
            within[.]

            The district court issued a search warrant authorizing

the search of the residence and property as described in the

Affidavit.    The warrant authorized the search for

methamphetamine, drug related paraphernalia, articles tending to

show the sale, proceeds of sale, or transport of

methamphetamine, articles tending to establish who controlled




                                      5
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


the premise, and U.S. currency with or near a controlled

substance.6

                      B. Circuit Court Proceedings

           Rodrigues filed a Motion to Suppress Evidence and for

Return of Property (Motion) in which he requested the

suppression of “all evidence obtained as a result of the search

of the ohana studio dwelling unit, in violation of [his]

constitutional rights under Article I” of the Hawaii

Constitution.

           In his Motion, Rodrigues argued that the warrant

defined the main residence with particularity, but failed to

mention the separate and distinct ohana unit that the police

actually searched.7     Thus, there was no probable cause to search

his ohana dwelling unit, Rodrigues contended, because a search

warrant for a “multiple-occupancy building” must describe with

particularity the specific subunit to be searched to be valid.

Alternatively, Rodrigues maintained that if the warrant did

authorize a search of his subunit, it was overbroad.             Rodrigues


     6
            The inventory filed with the district court after the search
indicated that the officers seized, inter alia, 131.4 grams of crystal
methamphetamine, 93.4 grams of cocaine, 33.4 grams of marijuana, various
pills and drug paraphernalia, three vehicles, and $993 in cash.
     7
            “‘Ohana dwelling’ means a second dwelling unit permitted to be
built as a separate or an attached unit on a building site, but does not
include a guest house or a farm dwelling.” Hawaii County Code 1983, ch. 25,
§ 25-1-5(b) (republished 2005).

                                      6
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


also sought the return of his seized vehicles and cash under

Hawaii Rules of Penal Procedure (HRPP) Rule 41(e).8

          In opposition, the State argued that the warrant

satisfied the particularity requirement and that the search did

not exceed the scope of the warrant.        The State acknowledged the

general rule that a warrant for a multiple-occupancy building

will usually be held invalid if it fails to describe the

particular subunit.     However, the State maintained that there is

an exception when (1) the building appears to be a single-

occupancy building and (2) the affiant, investigating officers,

and executing officers neither knew nor had reason to know that

it was a multiple-occupancy building until the execution of the

warrant was ongoing.     Based on the information available to

Officer Segobia at the time that the warrant was issued, the

scope of the search warrant did not preclude him from searching

Rodrigues’ residence, the State argued, because it appeared that

all occupants had access to the entirety of the building, making

it a single-occupancy residence.
     8
          HRPP Rule 41 (2013) provides in pertinent part:

          (e) Motion to return property. A person aggrieved by an
          unlawful search and seizure of property or by the
          deprivation of property may move the court having
          jurisdiction to try the offense for the return of the
          property. The judge shall receive evidence on any issue of
          fact necessary to the decision of the motion. If the motion
          is granted, the property shall be returned unless otherwise
          subject to lawful detention, but the judge may impose
          reasonable conditions to protect access to the property and
          its use in later proceedings.

                                     7
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


           Next, the State argued that the execution of the

search warrant was valid and did not exceed the scope of the

warrant.   The State asserted it was reasonable to search the

entire dwelling described in the warrant because the search was

conducted prior to discovery of the fact that Rodrigues’ unit

was a separate unit.     Thus, according to the State, the search

was valid as there was not objectively verifiable evidence from

which the police officers should have unequivocally recognized

that Rodrigues’ unit required a separate warrant.

           At the hearing on the Motion, Rodrigues called two

witnesses.9   Rodrigues first called Officer Segobia who testified

that his Affidavit was based on information that he obtained

from the CI and from observing the controlled purchase.            The

main entrance of the residence was through the carport at the

top portion of the residence, Officer Segobia testified, but he

saw the CI walk downstairs and go to the downstairs unit, not

the main entrance he described in the search warrant.            The

officer explained that Rodrigues was living in a downstairs unit

of the residence located on the south portion of the lot.

           The “upstairs unit is completely separate from the

downstairs unit” such that a person cannot access the downstairs

unit from the upstairs portion of the residence, the officer

     9
           The Honorable Henry Nakamoto presided.


                                     8
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


explained.    Although Officer Segobia stated that the CI “wasn’t

100 percent if there would be a stairwell within [Rodrigues’]

unit or not” after conducting the controlled purchase, Officer

Segobia acknowledged that, when he executed the warrant, there

was no stairway connecting the downstairs unit to the upstairs

portion of the residence.      Officer Segobia further acknowledged

that the unit he described in his Affidavit was “not the unit

[he] searched.”

            Officer Segobia stated that he described the property

as one residence in his Affidavit because the Hawaii real

property tax map described the residence as being a three

bedroom owned by Yolanda Rodrigues (Ms. Rodrigues), who is

Rodrigues’ mother.    Based on this information, the officer said,

he concluded that the downstairs unit was not an ohana unit but

rather a bedroom that is located downstairs of the residence

that “almost looks like [] an extension” of the residence.

            Officer Segobia also testified that his “personal

friend” and Rodrigues’ brother-in-law, Nick Ah Nee, was the

resident of the downstairs unit prior to Rodrigues, and that he

spoke with Ah Nee about the unit before the warrant was

executed.    Ah Nee said that he lived in the downstairs unit with

his wife prior to Rodrigues, Officer Segobia explained.            The

officer testified that Ah Nee also said that Rodrigues lived


                                     9
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


upstairs in an office unit until Ah Nee moved out, at which

point Rodrigues moved into the downstairs unit and the upstairs

portion became Ms. Rodrigues’ “portion of the residence.”

Officer Segobia stated that he had previously visited Ah Nee at

the residence while Ah Nee was living there.

          As to his Affidavit, Officer Segobia testified that he

described the entire residence and the front of the residence

because “the information [from the CI] was very vague” as to

whether the upstairs was accessible from Rodrigues’ unit.             He

also described the residence as a whole, he explained, because

it is owned by the same person.       Officer Segobia elaborated that

the CI could not give him information as to the inside of the

downstairs unit layout.     The officer added that he “didn’t want

to get too specific in [his] affidavit since the CI could not

confirm the information.”      While acknowledging that the

description of the area that he wanted to search was nowhere in

his Affidavit, the officer nonetheless testified that the search

warrant was intended to cover the upstairs portion of the house

and the downstairs portion of the house.         Officer Segobia stated

that he described the residence in his Affidavit as “wood siding

with a white color roof,” but when questioned, he acknowledged

that the downstairs unit was “painted sort of a greenish color”

and did not have wood siding on it.


                                    10
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


           As to the execution of the warrant, Officer Segobia

testified that he approached the downstairs door located on the

south side of the residence because that door is where he saw

the CI do a transaction with Rodrigues.          But the officer stated

he believed, based on the information he obtained from Ah Nee

that Rodrigues also lived in the residence while Ah Nee lived

there, that “everybody would have access to everything” inside

the residence.     When he discovered the upstairs portion of the

residence was not accessible from the downstairs unit, Officer

Segobia testified, he called the search off in the top portion

of the residence.     Officer Segobia further acknowledged that the

unit he described in his Affidavit was not the unit he searched.

           After Officer Segobia’s testimony concluded, Rodrigues

called Ms. Rodrigues to testify.          Ms. Rodrigues stated that she

owned a home located at “[] Puuhalo Street,” which had three

bedrooms upstairs and “a separate unit” downstairs.            Rodrigues

began living in the downstairs unit, and paying rent, about two

years prior to May 2017, Ms. Rodrigues testified.            She explained

that the downstairs unit had a kitchen, bathroom, and its own

lock.10




     10
            Ms. Rodrigues testified that she possessed the keys to both the
downstairs unit and the upstairs portion of the residence at the time of the
search.

                                     11
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


          The circuit court issued Findings of Fact (FOF) and

Conclusions of Law (COL); Order.         The court determined that

Officer Segobia’s Affidavit did not mention the separate

downstairs residential unit nor did it mention an entrance on

the lower story and Konalani Street side of the residence.

Additionally, in FOF 9, the court found that:

          9. Officer Segobia testified the downstairs unit is
          separate from the upstairs unit with its own bedroom,
          bathroom and kitchen.

          The court explained that Officer Segobia “admitted he

did not describe the downstairs unit and side doorway in his

application for [the] search warrant” but nonetheless “searched

the downstairs unit which is completely separate from the

upstairs unit described in the search warrant.”          The court also

found that the officer testified that he did not search the

three bedroom, two bathroom residence with light colored siding

and white rooftop.    Finally, the court determined that Officer

Segobia testified that he had been aware at one time that the

house had been inhabited by multiple individuals and that he was

personally acquainted with the previous resident and had visited

the house.

          The circuit court concluded that the search warrant in

this case described with particularity the upstairs residence as

it identified how one must travel to the upstairs residence,

what the upstairs residence looks like from the outside, as well
                                    12
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


as the number of bedrooms and bathrooms in the upstairs unit.

But the warrant did not describe at all the separate studio unit

located downstairs, the court explained.         Accordingly, the court

stated that “[n]othing in the Affidavit describes the studio

unit on the bottom floor despite Officer Segobia having ample

facts about this downstairs unit, its separate entrance and

identifying characteristics.”       Thus, the court concluded that

the Affidavit and the search warrant did not describe and

therefore did not authorize the search of the separate

downstairs studio unit.

          The court also determined that the Affidavit set forth

facts sufficient to issue a warrant for the upstairs unit and to

justify a search of that unit, only.        However, in COL 11 the

court concluded that:

          11. The Affidavit and the search warrant simply do not
          describe and therefore do not authorize the search of the
          separate downstairs studio unit.

          The court emphasized that the Affidavit did not set

forth any facts sufficient to justify a warrant for a search of

the separate studio unit.      The court additionally found that

“Officer Segobia knew or should have known that the residence

was a multi-unit dwelling with more than one occupant” because

he “knew the previous resident, and had been to the residence.”

Further, the “outward appearance of the residence” itself

suggested that “the downstairs [was] a separate unit” because it
                                    13
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


had a separate entrance, the court determined.           The warrant was

therefore invalid, the court ruled, because it failed to

describe with particularity the place to be searched.

           As to the search itself, the circuit court concluded

that the warrant did not authorize the search of the separate

downstairs studio unit, and therefore the search exceeded the

scope of the warrant.      And the search of the property outside

the scope of the warrant was invalid in its own right because

there was no probable cause to justify a search of the

downstairs studio unit and Rodrigues had a reasonable

expectation of privacy in the downstairs studio unit, the court

ruled.    As a result, the court granted Rodrigues’ Motion and

ordered the return of his three vehicles and cash.            The State

filed a timely appeal.

                           II. ICA PROCEEDINGS

           In a Memorandum Opinion, the ICA stated that the

State’s appeal turned on the application of rules governing

“multiple occupancy” search warrants because the circuit court

based its decision, in major part, on its implicit factual

determination that the residence subject to the search at issue

was a multiple-occupancy dwelling.11


     11
            The ICA’s memorandum opinion can be found at State v. Rodrigues,
No. CAAP-XX-XXXXXXX, 2019 WL 1123752 (App. Mar. 12, 2019).


                                     14
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


           The ICA found that the residence in this case was not

a multiple-occupancy building because (1) the evidence did not

demonstrate that Rodrigues maintained exclusive access to the

lower unit, and (2) the structure had the outward appearance of

community occupation.      On the second point, the ICA elaborated

that the residence had one address, one mailbox, and no

additional doorbell for the lower unit.12         The ICA also explained

that the property tax records did not indicate there was an

additional kitchen, bath or bedroom in the lower unit, nor did

the records indicate that this was a separate dwelling unit.

Thus, the ICA concluded that the circuit court’s “implicit

finding” that the structure was a multiple-occupancy building

was clearly erroneous based on the information Officer Segobia

had at the time that he applied for a search warrant.

           The ICA also found that the failure of Officer Segobia

to more specifically describe the internal structure of the

residence did not render the warrant invalid.           The ICA

acknowledged that the officer had been inside the lower unit at

one time, but stated that his knowledge of its particulars was

not extensive and he thought, although he was not sure, that

there was an internal staircase.          Additionally, the ICA

     12
            It is unclear what evidence the ICA relied on to determine
whether a doorbell existed as there was no mention of the word “doorbell” at
the hearing, and there is nothing in the record discussing one.


                                     15
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


explained that the CI could not give more specifics regarding

the internal structure nor could he confirm whether an internal

staircase existed at the time.        The warrant authorized the

search of the entire structure, the ICA determined, because

Officer Segobia had information that all of the family members

had access to the entire house.13         The ICA therefore concluded

that the circuit court erred in concluding that the warrant was

not sufficiently specific, and it vacated the circuit court’s

Findings of Fact and Conclusions of Law.

           Judge Leonard dissented from the ICA’s decision,

noting that the State only challenged COL 9 and 11 and did not

contest any of the other findings of facts, conclusions of law,

or mixed findings and conclusions.14         These unchallenged mixed

findings were well-grounded in the testimony and evidence in the

record and reasonable inferences therefrom, the dissent stated.

     13
            Although Officer Segobia stated that “it appeared that everybody
would have access to other people’s areas” in the residence, he did not
testify that Ah Nee told him this information. Rather, despite his knowledge
that Ah Nee previously occupied the downstairs unit, the officer’s
supposition was based on the fact that “this [was] a family house.”
Additionally, Officer Segobia’s Affidavit did not indicate his belief that
“everybody would have access to other people’s areas.”
     14
           As stated, the challenged conclusions of law were as follows:

           9. Officer Segobia testified the downstairs unit is
           separate from the upstairs unit with its own bedroom,
           bathroom and kitchen.

           11. The Affidavit and the search warrant simply do not
           describe and therefore do not authorize the search of the
           separate downstairs studio unit.



                                     16
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


The unchallenged findings of fact demonstrated that the

downstairs unit was separate and distinct from the upstairs

unit, and that Officer Segobia knew this from personal

experience and observations, the dissent noted.          The dissent

explained that the unchallenged conclusions and findings also

found that Officer Segobia failed to describe the bottom unit in

his Affidavit and thus failed to justify a warrant or search of

that unit.   Thus, the State’s contention that COL 9 was clearly

erroneous was without merit and the State’s challenge to COL 11

was inconsistent with the Circuit Court’s unchallenged findings

and the record on appeal, the dissent concluded.

          The case was remanded to the circuit court for further

proceedings.   Rodrigues timely filed an application for writ of

certiorari, which this court accepted.

                       III. STANDARDS OF REVIEW

          We review a circuit court’s findings of fact under a

“clearly erroneous standard,” and we review its conclusions of

law de novo.   Mikelson v. United Servs. Auto. Ass’n, 107 Hawaii

192, 197, 111 P.3d 601, 606 (2005) (quoting RGIS Inventory

Specialist v. Hawaii Civil Rights Comm’n, 104 Hawaii 158, 160,

86 P.3d 449, 451 (2004)).      Additionally, a conclusion of law

“that presents mixed questions of fact and law is reviewed under

the clearly erroneous standard because the conclusion is


                                    17
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


dependent upon the facts and circumstances of the particular

case.”    Booth v. Booth, 90 Hawaii 413, 416, 978 P.2d 851, 854

(1999) (quoting Poe v. Hawaii Labor Relations Bd., 87 Hawaii

191, 195, 953 P.2d 569, 573 (1998)).         But while “[c]onclusions

of law are not binding upon an appellate court and are freely

reviewable for their correctness,” LC v. MG & Child Support

Enforcement Agency, 143 Hawaii 302, 310, 430 P.3d 400, 408

(2018) (internal quotation marks omitted), unchallenged findings

of fact are “binding upon this court.”          Kelly v. 1250 Oceanside

Partners, 111 Hawaii 205, 227, 140 P.3d 985, 1007 (2006).

                              IV. DISCUSSION

    A. The Warrant Was Invalid Because It Did Not Particularly
                     Describe Rodrigues’ Unit

            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[.]”15     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

     15
            This language is identical to the language of the Fourth
Amendment to the United States Constitution. See U.S. Const. amend. IV.

                                     18
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***



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)).

           A search warrant that authorizes the search of a

“multiple-occupancy [dwelling] . . . will usually be held

invalid if it fails to describe the particular subunit to be

searched with sufficient definiteness to preclude a search of

one or more subunits indiscriminately.”         Id. (quoting 2 Wayne R.

LaFave, Search and Seizure § 4.5(b), at 526–29 (3d ed. 1996)).

That is, the particularity requirement “is not met when only a

general description of a multiple-occupancy building is

provided[.]”     68 Am. Jur. 2d Searches & Seizures § 224, 407


                                    19
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


(2010).   This is because the “basic requirement” of the Fourth

Amendment and article I, section 7 “is that the officers who are

commanded to search be able from the ‘particular’ description of

the search warrant to identify the specific place for which

there is probable cause to believe that a crime is being

committed.”   2 Wayne R. Lafave et al., Criminal Procedure

§ 3.4(e), at 186 (4th ed. 2015).         A search warrant, however, 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 LaFave, supra, § 4.5(b), at 526–29).

          Thus, whether the warrant in this case satisfied the

particularity requirement entails a determination of (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.            See id.




                                    20
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


If either of these questions yields an affirmative answer, then

the search warrant is invalid.

           Here, the downstairs unit had a different appearance

than the remainder of the residence.         The downstairs unit was

painted green whereas the rest of the residence was light

colored, and unlike the upstairs portion of the residence, the

downstairs unit did not have wood siding.          Additionally, the

downstairs unit’s roof was not connected to the roof covering

the rest of the residence.       The downstairs unit also had an

entrance that was separate from the upstairs portion and

accessible from a separate street.         A worn path led from the

entrance of the upstairs residence to the entrance of the

downstairs unit.     Indeed, the CI that conducted the controlled

purchase walked along the path and entered the downstairs unit

through this separate entrance.        And Officer Segobia testified

that the downstairs unit’s entrance was not the same as the main

door that he had described in the search warrant.16            These facts

signaled that the downstairs unit was not internally connected

to the rest of the residence.


     16
            One factor relevant to whether a unit appears to be a residence
is whether the unit has “its own access to the outside.” Anderson, 84 Hawaii
at 471, 935 P.2d at 1016; see also United States v. Kyles, 40 F.3d 519, 524
(2d Cir. 1994) (explaining that a “[f]actor[] that indicate[s] a separate
residence include[s] separate access from the outside” (citing United States
v. Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991); United States v. Hinds, 856
F.2d 438, 441-42 (1st Cir. 1988))).


                                     21
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


           The circuit court specifically determined that the

residence’s outward appearance indicated the downstairs was a

separate unit.     The court’s related findings of fact are in

accord with this determination.        It found that the downstairs

unit has its own door to the outside and the door has a lock.

The court also found that the downstairs unit had a different

appearance than the upstairs portion of the house as the outside

of the house was green on the bottom and brown on the top and

the top portion has new lumber and has a different color from

the downstairs.     Thus, the court determined that Officer Segobia

had ample facts about the downstairs unit, its separate entrance

and identifying characteristics.          None of these findings of fact

were challenged by the State on appeal.17         These findings, and

the underlying evidence, support the circuit court’s

unchallenged determination that the outward appearance of the

residence suggests that the downstairs is a separate unit.

Thus, the evidence supports the circuit court’s finding that the

outward appearance of the residence indicated that the structure
     17
            Despite the unchallenged findings of the circuit court, the ICA
found the residence had the appearance of “community occupation” because
there was only one address and one mailbox and because the property tax
records did not show a separate dwelling unit. While a single address and
mailbox can be considered in determining the “outward appearance” of a
structure, see Anderson, 84 Hawaii at 471, 935 P.2d at 1016, tax records do
not aid in determining the “outward appearance” of a structure. The more
weighty countervailing circumstances that the circuit court considered
included the different physical appearance and construction materials of the
two residential units, the units’ different roofs, and the separate entrances
of the units that were on different streets.


                                     22
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


described in the search warrant would not be taken as a single-

occupancy structure, and on this basis alone, the warrant was

not valid.

           Turning to the second question, the search warrant

authorized a search of “a three bedroom, 2 bathroom

residence . . . located at [] Puuhalo Street[.]”           The evidence

shows that Officer Segobia had significant knowledge of the

details of the downstairs prior to the execution of the search

warrant.   In addition to the outward appearance of the

structure, the officer’s knowledge that Ah Nee and his wife

previously lived in the unit apart from Rodrigues indicated that

multiple families had been separately living in the building.

Officer Segobia acknowledged being told by Ah Nee that during

the time he lived in the unit with his wife, Rodrigues lived

“upstairs in an office unit.”       The officer also knew that when

Ah Nee moved out, Rodrigues moved into the downstairs unit and

the upstairs portion became his mother’s portion of the

residence.   And, Officer Segobia had been inside the downstairs

unit while Ah Nee lived there.       Further, Officer Segobia had

personal knowledge of the appearance of the building because he

was both the investigating officer who drafted the Affidavit and

the officer that executed the search warrant.

           The circuit court’s findings of fact support its

conclusion that Officer Segobia “knew or should have known” that
                                23
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


the residence he described in his Affidavit, and that was

described in the search warrant, “was a multi-unit dwelling with

more than one occupant.”       The court found that Officer Segobia

testified that Rodrigues was living in a downstairs unit of the

residence located on the south portion of the residence.

Additionally, the court found that the officer had been aware at

one time that the house had been inhabited by multiple

individuals and that Officer Segobia was personally acquainted

with the previous resident and had visited the house.             The

officer also testified, the court found, that the downstairs

unit is completely separate from the upstairs unit described in

the search warrant.      None of these findings were challenged by

the State.    Based on these findings, the court determined that

Officer Segobia knew or should have known that the residence was

a multi-unit dwelling with more than one occupant.            Thus, the

evidence in the record supports this finding of fact and

therefore it was not clearly erroneous.18

     18
            The ICA found that Officer Segobia’s knowledge of the downstairs
unit’s particulars was not extensive, as he thought, although he was not
sure, that there was an internal staircase. Although Officer Segobia
testified that the CI “wasn’t 100 percent [sure] if there would be a
stairwell within [Rodrigues’] unit” and also testified that, “I almost want
to say there used to be a stairwell and it got blocked off from the bathroom
area, if I remember correctly,” the circuit court implicitly rejected this
testimony based on the complete lack of evidentiary support for the prior
existence of a stairwell or a “blocked” staircase. This rejection was based
upon the actual knowledge and descriptions of the officer regarding the
Rodrigues’ unit, particularly his earlier presence in the unit, as the
circuit court determined that the Officer knew or should have known that the
residence was a multi-unit dwelling with more than one occupant.


                                     24
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


           The court’s findings demonstrate that the residence

would not “be taken to be a single-occupancy structure” from its

outward appearance and that Officer Segobia “knew or had reason

to know of the structure’s actual multiple-occupancy character”

prior to the execution of the warrant.          Anderson, 84 Hawaii at

468, 935 P.2d at 1013 (quoting 2 LaFave, supra, § 4.5(b), at

526–29).   Either determination rendered the search warrant

invalid, and the circuit court thus correctly concluded that the

search warrant in this case failed to describe with

particularity the place to be searched, despite the officer

having sufficient information to do so.19         Accordingly, the

State’s challenge to the circuit court’s COL 9 that the warrant

did not describe at all the separate studio unit located

downstairs and its challenge to COL 11 that the search warrant

did not describe and therefore did not authorize the search of

the separate downstairs unit lack merit.


     19
            The ICA found, however, that the residence was not a multiple-
occupancy dwelling because the evidence did not demonstrate that Rodrigues
maintained exclusive access to the lower unit as Officer Segobia had
information that all of the family members had access to the entire house.
The cases relied upon by the ICA addressing a person’s “exclusive access” to
a residential unit involved a residence in which multiple people shared a
common area but had separate bedrooms, not an entirely separate living unit
as in this case. Additionally, there was no evidence that anyone besides
Rodrigues had access to the downstairs unit other than Ms. Rodrigues, who
rented the unit to Rodrigues and thus had keys to it. And Officer Segobia’s
speculation that “it appeared that everybody would have access to other
people’s areas” in the residence was not based on information provided by Ah
Nee and, in fact, was contrary to his knowledge that Ah Nee and his wife
lived in the downstairs unit separate from Rodrigues and Ms. Rodrigues.


                                     25
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


            Because the search warrant in this case failed to

satisfy the particularity requirement of article I, section 7 of

the Hawaii Constitution, it was invalid.         See Anderson, 84

Hawaii at 468, 935 P.2d at 1013 (“A search warrant for a[] . . .

multiple-occupancy building will [] be held invalid if it fails

to describe the particular subunit to be searched[.]”).

            The ICA nevertheless concluded that it was error for

the circuit court to conclude that the warrant was deficient for

the failure to specifically describe the lower unit.            As

explained, the circuit court determined that the outward

appearance of the residence suggests that the downstairs is a

separate unit.    Additionally, based on the building’s

appearance, the information that the officer received from Ah

Nee, and the officer’s prior visit to the residence, the court

determined that Officer Segobia knew or should have known that

the residence was a multi-unit dwelling with more than one

occupant.    Neither finding was challenged by the State before

the ICA.    Whether the downstairs unit appeared to be separate

based on the “outward appearance of the residence” was plainly a

factual finding, determined by the circuit court based upon the

testimony and photographs of the exterior of the structure




                                    26
     ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


introduced into evidence at the hearing.20          It is well-

established that appellate courts must review challenged

findings of fact under the clearly erroneous standard and that

unchallenged findings of fact are binding upon appellate courts.

Kelly v. 1250 Oceanside Partners, 111 Hawaii 205, 227, 140 P.3d

985, 1007 (2006); Okada Trucking Co. v. Bd. of Water Supply, 97

Hawaii 450, 458, 40 P.3d 73, 81 (2002).         The ICA nonetheless

found that the residence had the “outward appearance of

community occupation.”      Because the circuit court’s unchallenged

finding was binding on the ICA, it was error for the ICA to make

a factual finding as to the appearance of the structure that was

contrary to the circuit court’s finding.          See Kelly, 111 Hawaii

at 227, 140 P.3d at 1007.

           Similarly, the circuit court’s determination that

Officer Segobia knew or should have known that the residence was

a multi-unit dwelling with more than one occupant was a factual

determination; it involved the court examining the evidence

regarding the appearance of the residence, the information that

the officer received from Ah Nee, and the officer’s prior visit

to the residence.     But the ICA determined that Officer Segobia


      20
            Some of the circuit court’s findings of fact in this case were
labeled as conclusions of law. We have recognized, however, that “a finding
of fact is not freely reviewable by reason of its label as a conclusion of
law.” Molokoa Vill. Dev. Co. v. Kauai Elec. Co., 60 Haw. 582, 596, 593 P.2d
375, 384 (1979).

                                     27
      ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


did not have sufficient knowledge that the residence was a

multi-unit dwelling.       It was error for the ICA to make a

determination regarding Officer Segobia’s knowledge of the

character of the residence that was contrary to an unchallenged

finding made by the circuit court to which the ICA was bound.

Id.   Thus, the ICA erred in not accepting the circuit court’s

findings of fact and in concluding the particularity requirement

was satisfied.      See Anderson, 84 Hawaii at 468, 935 P.2d at

1013.

      B. The Search Violated Rodrigues’ Constitutional Rights

            It is well-established that any warrantless search of

a constitutionally protected area is “presumptively unreasonable

unless there is both probable cause and a legally recognized

exception to the warrant requirement.”           State v. Phillips, 138

Hawaii 321, 336, 382 P.3d 133, 148 (2016); State v. Wallace, 80

Hawaii 382, 393, 910 P.2d 695, 706 (1996); State v. Bonnell, 75

Haw. 124, 137, 856 P.2d 1265, 1273 (1993).           There has been no

assertion at any point in the course of this litigation that an

exception to the warrant requirement applied.            Thus, the search

of Rodrigues’ residence violated his constitutional right

against unreasonable searches under article I, section 7 of the

Hawaii Constitution.      The circuit court properly granted



                                      28
    ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***


Rodrigues’ motion to suppress, and the ICA erred in vacating the

circuit court’s Findings of Fact and Conclusions of Law.

                              V. CONCLUSION

          Accordingly, the ICA’s April 10, 2019 Judgment on

Appeal is vacated, and the case is remanded to the circuit court

for further proceedings consistent with this opinion.


Taryn R. Tomasa                          /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama

Kauanoe A. Jackson                       /s/ Sabrina S. McKenna
for respondent
                                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




                                    29
