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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000020
                                                              30-SEP-2016
                                                              01:01 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                 ---o0o---


                          STATE OF HAWAIʻI,
                   Petitioner/Plaintiff-Appellee,

                                    vs.

                          LINCOLN PHILLIPS,
                   Respondent/Defendant-Appellant.


                              SCWC-12-0000020

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-12-0000020; CR. NO. 08-1-1430)

                           SEPTEMBER 30, 2016

 McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE NISHIMURA, IN PLACE
     OF ACOBA, J., RECUSED, AND NAKAYAMA, J., CONCURRING AND
          DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

                         I.       INTRODUCTION

          The Intermediate Court of Appeals (ICA) vacated the

conviction of Lincoln Phillips for the attempted murder of his

wife Tara Phillips and remanded the case for a new trial.             In

reaching this result, the ICA adopted an interpretation of the
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plain view doctrine that is contrary to this court’s prior

decisions and the protections and limits of the rights

guaranteed under Article I, Section 7 of the Hawaiʻi

Constitution.    A proper application of these principles requires

the reversal of the ICA’s judgment on appeal and affirmance of

the trial court’s amended judgment of conviction.

                          II.     BACKGROUND

                     A.     Initial investigation

            In the early morning of September 3, 2008, police

dispatch received a call from Lincoln Phillips summoning police

to his home.    Phillips told the operator that “when he came home

he found injuries to his wife’s head.”         Honolulu Fire Department

(HFD) personnel, emergency medical technicians (EMT), and

Officer Stanley Collins of the Honolulu Police Department (HPD)

were the earliest first responders to arrive at Phillips’ house.

            HPD Officer Collins received the dispatch at about

3:54 a.m.    The officer “had no idea” of the identity of the

victim or suspect.    When Officer Collins arrived at the

residence, he saw Phillips “in his garage area.”           According to

Officer Collins, Phillips seemed frantic and was “motioning

[him] to come forward” into the “garage area.”          Officer Collins

understood the motioning to be “inviting me” and as an

indication that “this is the place you should come, this is the




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place you should be.” 1     Upon entering the garage, Officer Collins

asked Phillips what happened.        Phillips responded, “It’s my

wife, it’s my wife,” and informed Officer Collins that his wife,

Tara Phillips (Tara), was upstairs in the bedroom.            While

Phillips remained in the garage area, Officer Collins went

upstairs and saw Tara lying on a bed being attended by members

of the HFD.    After spending “maybe a few seconds” upstairs,

Officer Collins returned to the garage, where Phillips had

remained, and Officer Collins “made contact with Phillips and

tried to get him calm.”

            HPD Officer Robert Frank arrived at approximately 4:03

a.m. and joined Officer Collins and Phillips in the garage.

Officer Frank noted that Phillips “was sweating profusely,

pacing back and forth.”       Phillips told the officers that “he

couldn’t sleep.     So he got in his car, drove to the beach[] then

[to] the park at the end of Fort Weaver Road, [and] stopped at 7

Eleven.”    When he “arrived home, [he] went upstairs and . . .

found his wife bleeding from her head.”

            Officer Collins “tried to get [Phillips] calm” by

opening the door of Tara’s vehicle and having him sit in the
      1
            From this testimony, there is the clear indication that the
garage door was open when Officer Collins arrived. The fact that the garage
door was open when the police arrived is supported by Officer Collins’
testimony that Phillips told him “[t]hat he had left to go get something and
when he returned home he found his garage door opened”, and by trial
testimony of an EMT that when he arrived at the scene “[i]nitially we seen
[sic] the garage open.”




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passenger seat.    Officer Collins asked him what happened, and

Phillips explained that “when he went upstairs initially he sat

on the futon” and “the lights were out.”         “When he heard his

wife having difficulty breathing that’s when he turned on the

lights and discovered her injuries.”

            Phillips said that the garage door was closed when he

drove off early that morning and open when he returned home.

Phillips explained that the garage door was defective: “it would

close with the remote, but it would not open with the remote.”

Phillips demonstrated the garage door remote to show the

officers that it was defective.       Phillips closed the garage door

with the remote, and the officers “had to open it from the

inside panel of the garage” with a wall switch.

            HPD Sergeant (Sgt.) Lloyd Keliinui arrived at

Phillips’ residence at approximately 4:00 a.m.          Sgt. Keliinui

was told by other officers that Phillips had come home and had

“found out that his wife had been assaulted.”          Based on the

information that “somebody came in” to the home, Sgt. Keliinui

was concerned that there was “somebody out there unidentified,

possibly roaming the neighborhood, with some kind of weapon.”

Sgt. Keliinui “instructed some of the initial officers to canvas

the area” and to “check for possible suspects or witnesses” and

evidence.




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            HPD Officer John Tokunaga arrived at approximately

4:12 a.m.    Sgt. Keliinui instructed him to “check the area” “in

the immediate vicinity of the residence” “for possible weapons

that may have been used.”      Sgt. Keliinui did not inform Officer

Tokunaga of the general facts of the case.         Officer Tokunaga did

not know “what kind of possible weapons [he] was looking for.”

He was looking for any “possible evidence that may have been

related to the victim’s injuries.”         He was not aware of “anyone

in particular [that was] a suspect.”        Officer Tokunaga did not

find any weapon or other possible evidence that may have been

related to Tara’s injuries outside of the residence.

            Sometime before 4:30 a.m., Officer Tokunaga observed a

hammer “on a cooler” inside the garage, “on the left side of the

garage as you enter.”     Officer Tokunaga “believe[d] there was a

spot of blood on top of the hammer,” which indicated that it was

a “possible weapon.”     Officer Tokunaga also observed “water on

the handle area of the hammer” but not on the coolers.            At the

time Officer Tokunaga observed the hammer, Officers Frank and

Collins were also in the garage with Phillips.          Officer Tokunaga

informed Sgt. Keliinui and Officer Corrine Rivera about the

hammer that he had found.

            During the initial investigation, Phillips’ garage

served as an impromptu center for the police response.            Officer

Collins was “going back and forth” from the garage, trying to


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keep Phillips “calm”; “EMS [was] arriving, and the sector

sergeant [was] arriving”; and Officer Ahn was with Phillips in

the garage.     HPD officers “were coming in and out” of the

garage, and “there was a lot of commotion going on because the

garage had kind of been the central place of the investigation.”

             At some point during the “initial check of the

residence” by the police, Officer Frank blew his nose into a

napkin and “discarded it in the garbage can” that was “in the

garage.” 2   Officer Frank lifted the lid of the garbage container

“about 45 degrees” to discard the napkin, and observed rolled up

mesh clothing among discarded food boxes inside the garbage

container.     The clothes were “just sitting in the garbage

container,” “on the same level” of the food boxes.            Officer

Frank did not “disturb the contents of that trash can at all.”

Because the clothing “was rolled up,” Officer Frank did not

notice anything unusual about the clothes.          Officer Frank

informed Sgt. Keliinui about the clothing “when [he] got the

chance to see him.”

             HPD Officer Dennis Ahn arrived at approximately 4:30

a.m. and entered the open garage where he observed Officer

Collins, Sgt. Keliinui, and Phillips.         Officer Collins


      2
            Although not precisely described by the parties, photographs in
the record indicate that the “garbage can” is a common plastic garbage
container, apparently a 32-gallon variety.




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instructed Officer Ahn to stay with Phillips, who “was the only

witness at the time.”     Officer Ahn was assigned to watch

Phillips and help him “to just remain calm, and just to stay put

until a detective would come and get a statement from him.”

Later, Officer Ahn asked Phillips to move into the living room

so that he would be more comfortable and could see Tara as she

was being carried out, and because he was “obstructing the

walkway between walking in the garage and into the home.”

          At approximately 5:15 a.m., Officer Ahn asked Phillips

to accompany him “to the Kapolei station, because a detective

would like to get his statement.”          Officer Ahn informed Phillips

“that he was not under arrest.”       “Phillips was very cooperative.

And he said yes.”    Officer Ahn and Phillips arrived at the

Kapolei Police Station at approximately 5:30 a.m. where Phillips

was interviewed later that morning.         At the end of the

interview, Phillips “just want[ed] to go see [his] wife,” and he

was permitted to leave the station.

          At approximately 6:05 a.m., Evidence Specialist

Jasmina Eliza from the HPD Scientific Investigation Section

arrived at Phillips’ home.      She was directed to photograph and

recover the hammer.     Specialist Eliza recovered the hammer at

approximately 9:35 a.m.     At the same time, she also recovered a

man’s shirt as well as a man’s pants from the trash can located

in the garage.


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            At 12:25 p.m., HPD Detective Sheryl Sunia prepared an

Affidavit in Support of a Search Warrant (Affidavit).             In her

Affidavit, Sunia requested a warrant allowing a search of, inter

alia, Phillips’ residence and car, along with receptacles, bags,

and containers found within. 3

            Upon a finding that there was probable cause to

believe that “evidence of Attempted Murder in the Second Degree

. . . and/or Burglary in the First Degree” was present, a

district court judge issued a search warrant for Phillips’ car

and residence and “all closed compartments and/or containers”

therein at approximately 7:45 p.m. that evening.            Among other

items, the warrant allowed HPD officers to search Phillips’

residence for “[a] plastic garbage can, including its contents,

located in the enclosed garage” as well as “all items of

evidence, including, but not limited to . . . articles of

clothing . . . [and] tools.”

                           B.     Circuit Court

            On September 10, 2008, Phillips was indicted on the

charge of attempted murder in the second degree in violation of

Hawaiʻi Revised Statutes (HRS) §§ 705-500, 4 707-701.5, 5 and 706-



      3
            A detailed summary of the factual assertions made in Sunia’s
Affidavit is set forth in the Discussion section, see infra Part III.C.
      4
            HRS § 705-500 (1993) states in relevant part the following:

                                                              (. . .continued)


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656. 6       Phillips pleaded not guilty to the charge on September 15,

2008, in the Circuit Court of the First Circuit (circuit court).

                                1. Motion to Suppress

                On April 24, 2009, Phillips filed a Motion to Suppress

Evidence and Statements (motion). 7             Phillips sought to suppress


(. . .continued)

         (1) A person is guilty of an attempt to commit a crime if the
              person:(a) Intentionally engages in conduct which would
              constitute the crime if the attendant circumstances were as the
              person believes them to be; or
         (b) Intentionally engages in conduct which, under the circumstances
              as the person believes them to be, constitutes a substantial
              step in a course of conduct intended to culminate in the
              person’s commission of the crime.
      (2) When causing a particular result is an element of the crime, a
person is guilty of an attempt to commit the crime if, acting with the state
of mind required to establish liability with respect to the attendant
circumstances specified in the definition of the crime, the person
intentionally engages in conduct which is a substantial step in a course of
conduct intended or known to cause such a result.
         5
                HRS § 707-701.5 (1993) states as follows:

      (1) Except as provided in section 707-701, a person commits the offense
of murder in the second degree if the person intentionally or knowingly
causes the death of another person.
      (2) Murder in the second degree is a felony for which the defendant
shall be sentenced to imprisonment as provided in section 706-656.
         6
                HRS § 706-656 (Supp. 1996) states in relevant part as follows:

      (1) Persons eighteen years of age or over at the time of the offense
who are convicted of first degree murder or first degree attempted murder
shall be sentenced to life imprisonment without the possibility of parole.
      . . . .
      (2) Except as provided in section 706-657, pertaining to enhanced
sentence for second degree murder, persons convicted of second degree murder
and attempted second degree murder shall be sentenced to life imprisonment
with possibility of parole. The minimum length of imprisonment shall be
determined by the Hawaii paroling authority; provided that persons who are
repeat offenders under section 706-606.5 shall serve at least the applicable
mandatory minimum term of imprisonment.
         7
            The Honorable Karen S.S. Ahn presided over the hearing on the
motion and the subsequent trial.




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from admission into evidence the hammer recovered from his

garage and a gray “men’s shirt with orange piping and gray men’s

shorts with blue lateral stripes,” recovered from a trash can

located in his garage.     Phillips asserted that the hammer and

the clothing “were recovered without consent and without a

warrant,” in violation of his state and federal constitutional

rights.

            In his argument to the court on the motion, defense

counsel acknowledged that “the hammer’s in plain view, there’s

no dispute about that,” but argued that the HPD could not seize

the hammer absent “exigent circumstances for the warrantless

seizure.”    Regarding the clothing, defense counsel argued that

“whether or not . . . [it] was discovered inadvertently or was

in plain view,” there was both “a search and a seizure problem,”

particularly in light of the clothing being included as a basis

for the search warrant.

            The State asserted that “[h]aving invited the police

into his home to investigate a possible crime,” Phillips at best

only had “a diminished privacy right” and, hence, could not

complain “that the police were unlawfully in his home.”

According to the State, it was “uncontroverted” that the hammer

was discovered in plain view and that “the case law is clear,”

under State v. Jenkins, 93 Hawaiʻi 87, 997 P.2d 13 (2000), that

if “an item is in plain view, [seizure] doesn’t violate a


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person’s right[s].”     The State argued that the clothes were

admissible because “there was no search” when Officer Frank

“opened the trash can,” threw the napkin in, and “saw the

clothes” in “plain view.”      The State maintained that, in the

alternative, even if Officer Frank’s actions did constitute a

search, the clothing was still admissible under the doctrine of

inevitable discovery.     The State further contended that even

without the clothing, there was still probable cause for the

search warrant because the “fact that a crime was committed in

the house [was alone] enough for the search warrant.”

          On December 29, 2009, the circuit court issued its

“Findings of Facts, Conclusions of Law, and Order Granting in

Part and Denying in Part Defendant’s Motion to Suppress Evidence

and Statements.”    Regarding the hammer, the circuit court found

that when Officer Tokunaga was assigned to look for weapons, he

“knew no other facts and had no suspects in mind.”           The court

concluded that Officer Tokunaga was “engaged in a lawful

intrusion” when he “inadvertently observe[d]” the hammer.

Because the blood on the hammer gave Officer Tokunaga probable

cause to believe it was evidence of a crime, the hammer was

lawfully seized under the plain view doctrine.

          Additionally, the circuit court concluded that the

State had “carried its burden to show by clear and convincing

evidence that the clothing found within the covered trash


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container in the garage would inevitably have been discovered by

lawful means” under the search warrant later obtained.            The

court reasoned that the search warrant was not constitutionally

defective because “notwithstanding the search warrant

affidavit[’s] reliance, in part, upon statements and items

illegally obtained, the affidavit[] absent those statements and

items contained sufficient basis upon which a district court

judge could find probable cause to search for all items

enumerated.”

          The motion was therefore denied as to the hammer and

clothing discovered in Phillips’ garage.         The court granted the

motion, in part, with respect to certain statements Phillips

made to HPD officers.

                                2. The Trial

          The hammer and the clothing recovered from the garbage

container were received into evidence at trial.          Officer Frank

identified his discarded tissue in State’s Exhibit 15, a

photograph of the garbage can showing the appearance of the

interior of the container when Officer Frank lifted its lid on

the morning of September 3, 2008.        Police witnesses provided

testimony that Phillips had stated that he had placed the hammer

“where it was found.”     A witness stated that he saw Phillips

wearing the clothing found in the garbage container the day

before the assault.     An expert witness identified the red


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substance on the hammer and on the T-shirt as Tara’s blood

through DNA analysis.

            In regard to Tara’s injuries, Dr. Cherylee Chang

testified that Tara arrived at the hospital on the day of the

attack in a coma.     Tara was “unresponsive, not opening her

eyes,” and had no motor response.         Tara’s principal injury was a

large laceration over the right side of her head.            According to

Dr. Chang, Tara was “at imminent risk of death” because of

significant brain injuries; if she had not received emergency

medical treatment, she would have died “in the field.”             In order

to save her life, Tara was placed into a medically induced coma.

            Tara’s mother testified that Tara was in the hospital

in Honolulu for four months before being transferred to a

Veterans Affairs (VA) hospital near Tampa, Florida.            At the time

Tara left Hawaiʻi, Dr. Chang felt that Tara “was in such bad

neurologic condition that it looked like she would be bed

bound.”   Tara’s mother testified that Tara was never able to

live on her own after the attack and that she never regained any

memory of her attack.      Tara died in the Tampa, Florida VA

hospital on April 19, 2010. 8



      8
            The record does not contain any information regarding a discharge
from the Florida VA Hospital or indicate that Tara was cared for at home or
with a family member; as noted above, Tara’s mother testified that Tara died
in the Florida VA hospital. There is, however, a potential inference from
the record that Tara was discharged from the Florida VA hospital four months
                                                              (. . .continued)


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            The parties stipulated during trial that Tara’s “death

was unrelated to the September 3, 2008 attack.”           Phillips

elected not to testify.       In closing argument, Phillips’ counsel

argued that there was insufficient evidence to convict Phillips

of the charged offense.

            On June 16, 2011, the jury found Phillips guilty of

attempted murder in the second degree.          On August 29, 2011, the

Judgment of Conviction and Sentence was issued by the circuit

court, sentencing Phillips to life imprisonment with the

possibility of parole, with restitution to be determined at a

subsequent proceeding.

            At the restitution hearing, the State requested that

Tara’s mother be reimbursed for funeral and related expenses of

$6,530.   Phillips argued that he should not be liable for any

additional payment because he had made “very large payments for

a couple years to” Tara’s mother; Tara died well over a year

after the attack; and there was no evidence presented or

doctor’s testimony regarding the cause of death.            In response,

the circuit court noted that Tara was in a coma, suffered from

head injuries, had to be taken to a Florida nursing home, and

would not have died but for Phillips’ conduct.           Following the

(. . .continued)

before her death, with the further inference that Tara was presumably
readmitted before her death.




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restitution hearing, the court issued an Amended Judgment of

Conviction and Sentence, which ordered Phillips to pay $6,530 in

restitution.

            On January 20, 2012, Phillips filed a timely notice of

appeal from the amended judgment of conviction.

                C.     Intermediate Court of Appeals

            Phillips contended to the ICA that his rights under

the Fourth Amendment to the United States Constitution and

Article I, Section 7 of the Hawaiʻi Constitution were violated

when the circuit court denied his motion to suppress.            Phillips

argued that the circuit court erred in applying the plain view

doctrine to the discovery of the hammer and in concluding that

the State had presented clear and convincing evidence that the

clothing was admissible under the inevitable discovery exception

to the exclusionary rule.      Finally, Phillips argued that the

circuit court erred in assessing $6,530 in restitution.

                            1.    The Hammer

            Phillips asserted that the plain view doctrine was

inapplicable to the seizure of the hammer, and he argued that

the circuit court should have instead applied the open view

doctrine.    Phillips acknowledged that there “was nothing

intrusive about Officer Tokunaga’s vantage point because he was

permitted to be in [Phillips’] garage by [Phillips] himself.”

Officer Tokunaga viewed the hammer from a “public vantage


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point,” and therefore, “the plain view doctrine should not be

applied.”    “Absent a warrant [or] exigent circumstances at the

time of its seizure, since the hammer was recovered from a

constitutionally-protected location, evidence of the hammer

should have been suppressed under the open view doctrine.”

Phillips argued in the alternative that, under the plain view

doctrine, the circuit court should have suppressed the evidence

because the discovery was not inadvertent.

            In its Answering Brief, the State argued that

“discovery and seizure of the hammer was lawful under the ‘plain

view’ exception to the warrant requirement.”           The State

maintained that Officer “Tokunaga’s observation of the hammer

with a stain that resembled blood in the garage of the residence

was an ‘inadvertent discovery,’” because an inadvertent

discovery is one in which police officers do not “know in

advance the location of certain evidence and intend to seize it,

relying on the plain view doctrine only as a pretext.”             The

State argued:

            Officer Tokunaga’s discovery of the hammer was inadvertent.
            Here, Defendant had no reasonable expectation of privacy in
            his garage during a lawful investigation into the
            circumstances surrounding Tara’s injuries initiated by
            Defendant’s 911 call to the police. The police officers
            did not anticipate the discovery of the evidence until
            Officer Tokunaga actually observed the hammer.[ 9]


      9
            The State acknowledged that “although the United States Supreme
Court has eliminated inadvertent discovery as a requirement of the ‘plain
view’ exception, the Hawaiʻi Supreme Court has declined” to eliminate that
                                                              (. . .continued)


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The State contended that the police did not know in advance that

the evidence would be there; therefore, the observation of the

hammer was an inadvertent discovery, and the circuit court

properly admitted the hammer into evidence.

            In his Reply, Phillips asserted that “both sides have

conceded that the issue boils down to whether Officer Tokunaga’s

discovery of the hammer was ‘inadvertent.’”           Phillips argued

that discovery of the hammer was not inadvertent just because

“the police did not know in advance that the evidence would be

there.”   Rather, Phillips maintained that when Officer Tokunaga

discovered the hammer, he “was specifically looking for evidence

related to the attack on the complainant.”

            Phillips contended that “police investigation of a

crime or [his] house being established as a crime scene” does

not constitute “exigent circumstances such that the police could

violate [his] constitutional rights.”         He did not have an

“affirmative duty . . . to declare or establish his

constitutional right to privacy in his own home.”            Phillips

argued that there “was no evidence or testimony that established

exigent circumstances justifying seizure of the hammer.             To the

(. . .continued)

requirement in order to prevent “pretextual [A]rticle 1, Section 7 activity.”
While claiming that the discovery was inadvertent, the State alternatively
“urge[d the] appellate court to reconsider Meyer and hold that ‘inadvertent
discovery’ is not a requirement for the ‘plain view’ exception to the warrant
requirement.”




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contrary, the police could have quite easily secured the

residence and obtained a warrant.”

                               2. The Clothing

          Phillips declared that the circuit court did not

conduct an “analysis under the plain view doctrine to attempt to

justify the seizure of the clothing.”        According to Phillips,

“the court rejected any application of the plain view doctrine

and instead justified the seizure of the clothing under the

doctrine of inevitable discovery.”

          Phillips contested the circuit court’s finding “that

the search warrant would still have been issued even without

information of the illegally obtained evidence.”           Rather,

Phillips argued, the circuit court improperly concluded that the

search warrant would have been issued because “the court

fail[ed] to cite to any findings of fact in support of this

contention.”    Phillips contended that his position was bolstered

by the fact that “despite all of the illegally-obtained evidence

and statements, the police still did not feel that probable

cause existed to arrest [him] after his interview.”

          Phillips also argued that, even if the search warrant

would hypothetically have issued, the State did not show that

the clothing would have still been there when the search warrant

was executed.   Phillips maintained that, while he did not mean

to suggest he had “a right to discard or destroy evidence,” the


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lower court improperly “concluded that the State demonstrated by

clear and convincing evidence that [Phillips] was incapable of

retrieving and discarding the clothing from the garbage can”

before the search warrant was executed at 7:45 p.m.

          The State countered that “the attempted murder of

Tara” in the house and the hammer “found in the garage [with] a

stain that resembled blood on it” constituted “sufficient

probable cause to issue the warrant.”        The State contended that

Phillips could not have removed evidence from his house because,

as noted in the Affidavit in Support of Search Warrant, “the

vehicle and residence were being secured by the presence of

police units on scene.”     The State therefore maintained that

“the circuit court was correct in concluding that ‘the clothing

. . . would inevitably have been discovered by lawful means.’”

          Phillips replied that because “three major bases of

the warrant application [were] invalid”--the hammer, the clothes

and much of Phillips’ statements to the police--“it cannot be

assumed that the warrant [was properly] issued or that it would

have specified [the trash can] to be searched.”          Phillips

maintained that even “if there did exist sufficient probable

cause to issue the search warrant, the State did not show by

clear and convincing evidence that the clothing recovered from

[Phillips’] home would still have been there.”          The warrant was

not executed until “approximately sixteen hours later,” and


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there “was no testimony regarding whether the police would have

let [Phillips] back into his house after his release from

custody.”

                               3. Restitution

            Phillips argued that because the parties stipulated

that Tara’s death was “unrelated to the September 3, 2008 attack

. . . it must be accepted as fact.”        Phillips maintained that

“Tara died a full eighteen months after the attack.”           Phillips

argued that “[t]he record was completely devoid of any evidence

or testimony that her death was the result of the September 3,

2008 attack on her”; therefore, the circuit court erred when it

ordered him to pay restitution.

            The State responded that the circuit court correctly

recognized that “Tara didn’t recover from the injuries she

sustained as a result of Defendant’s attack upon her,” “was in a

coma and . . . had to be taken to a Florida nursing home, and

there died . . . and would not have died but for Defendant’s

conduct.”    The State contended that the circuit court properly

concluded that there was a nexus between Phillips’ conduct and

Tara’s death, and therefore, it “did not err by ordering

Defendant to pay restitution.”

            In his Reply, Phillips argued that the circuit court

“did not rely on any evidence to overcome the stipulated fact

that the complainant’s death had nothing to do with the attack


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on her.”   Because the “conclusions by the court did not come

from any evidence -- testimonial or otherwise”--Phillips argued

that he had “no opportunity to challenge the court’s findings

through traditional methods of cross examination or lack of

foundation,” and therefore, the order of restitution was not

proper.

                       4. Summary Disposition Order

           On August 30, 2013, the ICA issued a Summary

Disposition Order (SDO).      The ICA focused on the “inadvertent

discovery” requirement for a “legitimate plain view

observation.”   In determining the meaning of “inadvertent,” the

ICA relied upon a dictionary definition of inadvertent as

“unintentional.”    The ICA noted that Officer Tokunaga’s

supervisor instructed him “to search the premises for the weapon

used in the attack” on Tara.      “A warrant certainly could have

been obtained to search the premises given that an attempted

murder appeared to have taken place there.”          Thus, the ICA

concluded that “the search and discovery of the hammer were

certainly intentional” and, thus, could not “be described as

inadvertent.”   The ICA held that “the intentional search and

seizure of the hammer under the plain view doctrine was not

valid” and that “the circuit court erred in not suppressing the

evidence of the hammer.”      The ICA concluded that the issues




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relating to the clothes and restitution were moot, vacated

Phillips’ conviction, and remanded the case for a new trial.

          The dissent to the ICA opinion “agree[d] that the

Circuit Court erred in its application of the plain view

doctrine, but only because . . . it was mistaken to apply the

doctrine at all.”    The dissent contended that “Phillips

impliedly consented to a routine investigation into the

circumstances of the assault, and the seizure of the hammer was

thereby justified.”

          The dissent reasoned that if the inadvertency

requirement was held “to equate to intentionality, then,

logically, the plain view doctrine can never apply to a seizure

of evidence that is discovered during a search intended

precisely to turn up evidence of the sort discovered.”            The

dissent nevertheless avoided “the use of the plain view doctrine

entirely” and used implied consent as the “starting point for

[the] analysis.”    The dissent “would rule that Phillips

impliedly consented to [the] investigation” when he “called 911

to report that his wife was attacked, and hastened responding

officers into his home.”      And “such consent was valid until such

time as the initial investigation ceased; he revoked, or limited

the scope of, that consent; or he became a suspect.”           The

dissent noted that “Phillips never evinced any desire to limit




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the scope of police activity” and “seemed intent on facilitating

the investigation.”

          The dissent concluded that the facts provided in

Detective Sunia’s Affidavit, including the lawfully discovered

hammer, established probable cause for a search warrant without

the inclusion of the clothes discovered by Officer Frank.

Further, “[t]he evidence in the record clearly and convincingly

establishes that the authorities would not have permitted

Phillips to re-enter his house -- a crime scene -- to dispose of

anything therein.”    Thus, in the dissent’s view, the circuit

court was correct in determining that the clothing would

inevitably have been discovered pursuant to the execution of the

search warrant.

          The dissent also would have affirmed the circuit

court’s award of restitution, based on the evidence establishing

that Tara suffered head injuries, was in a coma after the

attack, and later had to be put in a nursing home where she

eventually died.    Further, the dissent pointed to evidence

presented to the circuit court regarding the lethality of her

injuries in concluding that Phillips’ responsibility for his

conduct was not extinguished.




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             D.     Application for Writ of Certiorari

                            1.    The hammer

          The State argues that the ICA “gravely erred in

holding the circuit court was wrong by not suppressing the

evidence of the hammer.”      The State maintains that the search

and seizure of the hammer was legitimate under the implied

consent theory, as described by the ICA dissent.           Alternatively,

the State argues that the seizure of the hammer was legitimate

under the plain view doctrine because the police “did not

anticipate discovery of the evidence until Officer Tokunaga

actually discovered the hammer”; thus, the “observation of the

hammer was an ‘inadvertent discovery.’”         The State additionally

requests this court to “hold that inadvertent discovery is not a

requirement for the plain view exception to the warrant

requirement.”

          In his Response, Phillips contends that the ICA “did

not gravely err in concluding the circuit court was wrong by not

suppressing evidence of the hammer.”        Phillips argues that the

seizure of the hammer was improper because Phillips “did not

impliedly consent to a search,” and implied consent was not

established in the evidentiary record because it “was never a

consideration, never argued[,] and never even mentioned at the

hearings on the motion to suppress.”        To decide this case on

implied consent, when relevant facts and testimony were not



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developed below, “would implicate [Phillips’] due process right

to confront the witnesses with respect to the issue of implied

consent.”    Phillips also echoed the ICA’s holding that “the

discovery of the hammer was not inadvertent because Officer

Tokunaga was ordered to search the premises,” and therefore,

“the search and seizure of the hammer was unconstitutional.”

                               2. The clothing

            The State contends that the ICA “gravely erred in

concluding that respondent’s other points on appeal are moot,

and thereby fail[ing] to render a decision with regard to the

evidence of clothing.”     The State maintains that “because the

circuit court’s ruling with regard to the clothing involves an

evidentiary issue, it should have been addressed by the ICA

majority before it remanded the case for a new trial.”            The

State also asserts that “the circuit court correctly applied the

inevitable discovery doctrine” in admitting the clothing into

evidence.

            In his Response, Phillips agrees with the State that

“the ICA majority gravely erred in concluding [Phillips’] other

points on appeal are moot,” but he argues that “this court

should suppress evidence of the clothing and vacate the circuit

court’s order of restitution.”       Phillips submits that “the State

did not present clear and convincing evidence that [the

clothing] would have been inevitably discovered,” maintaining


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both that the warrant may not have issued absent the hammer and

that the State failed to show that the clothing would have

remained in the garbage container until the warrant was

executed.

                               3. Restitution

            The State urges affirmance of the circuit court’s

order of restitution because there is “a sufficient nexus for

the circuit court to order restitution for Tara’s funeral

expenses.”

            Phillips responds that the circuit court improperly

awarded restitution because the circuit court “did not rely on

any evidence to overcome the stipulated fact that the

complainant’s death had nothing to do with the attack on her.”

                        III.      DISCUSSION

              A.   Police entry into Phillips’ garage

            The Fourth Amendment to the United States Constitution

protects the “right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and

seizures” by the government.      Similarly, article I, section 7 of

the Hawai‘i Constitution provides that 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.”




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          It is well established that warrantless searches and

seizures of items within a constitutionally protected area are

“presumptively unreasonable unless there is both probable cause

and a legally recognized exception to the warrant requirement.”

State v. Bonnell, 75 Haw. 124, 137, 856 P.2d 1265, 1273 (1993).

However, “before the issue of the ‘reasonableness’ of the

activity is confronted, it must first be determined whether the

activity did, in fact, constitute a search and seizure within

the scope of the Fourth Amendment” and the Hawai‘i Constitution.

State v. Kaaheena, 59 Hawai‘i 23, 28, 575 P.2d 462, 466 (1978)

(emphases added) (quoting Katz v. United States, 389 U.S. 347,

351 (1967)).    This is because the Fourth Amendment and article

I, section 7 do not apply unless there has been a “search” or a

“seizure.”    1 Wayne R. Lafave, Search & Seizure § 2.1 (5th ed.

2013) (“The words ‘searches and seizures,’ . . . are terms of

limitation.    Law enforcement practices [are not subject to the

Fourth Amendment] unless they are either ‘searches’ or

‘seizures.’” (quoting Anthony G. Amsterdam, Perspectives on the

Fourth Amendment, 58 Minn. L. Rev. 349 (1974))).           “[T]he Fourth

Amendment protects people, not places.         What a person knowingly

exposes to the public, even in his own home or office, is not a

subject of Fourth Amendment protection.”         State v. Stachler, 58

Haw. 412, 416, 570 P.2d 1323, 1326 (1977) (emphases added)

(quoting Katz, 389 U.S. at 351).


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          To determine whether a police entry constitutes a

“search” within the meaning of the Fourth Amendment and the

Hawai‘i Constitution, two tests have emerged: (1) the “Katz

reasonable expectation of privacy test,” State v. Kender, 60

Haw. 301, 303, 588 P.2d 447, 449 (1978), and (2) the

Jones/Jardines trespass-intrusion test, Florida v. Jardines, 133

S. Ct. 1409 (2013); United States v. Jones, 132 S. Ct. 945

(2012).

             The Katz doctrine provides that only government

intrusions into areas, objects, or activities in which an

individual has exhibited a “reasonable expectation of privacy”

are searches subject to the protections of the Fourth Amendment.

Katz, 389 U.S. at 360 (Harlan, J., concurring).          To determine

whether a person’s expectation of privacy is reasonable, “there

is a twofold requirement, first that a person . . . exhibited an

actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as

[objectively] ‘reasonable.’”      Id. at 361 (Harlan, J.,

concurring); Stachler, 58 Hawai‘i at 416, 570 P.2d at 1326.

          Of recent vintage is the Jones/Jardines trespass-

intrusion test.    Jones and Jardines recognized a trespass-

intrusion test based on the property-based understanding of

Fourth Amendment search and seizure jurisprudence.           What unites

Jones and Jardines is the bedrock principle that the government


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cannot trespass or physically intrude into a constitutionally

protected area for the purpose of gaining evidence without

complying with the strictures of the Fourth Amendment.             See

Jones, 132 S. Ct. at 950—951; Jardines, 133 S. Ct. at 1414—17.

Under the Jones/Jardines trespass-intrusion test, the first

question is whether there is a trespass or physical intrusion to

persons, houses, papers, or effects.         A physical intrusion is

the act of “entering without permission.”          Black’s Law

Dictionary 951 (10th ed. 2014).        Second, it must be determined

whether the underlying purpose of the police, objectively

examined and at the time of the trespass or physical intrusion,

is to gather evidence.      See Jardines, 133 S. Ct. at 1415—17.

Once both requisites are satisfied, a search under the

Jones/Jardines trespass-intrusion test has occurred.            See Jones,

132 S. Ct. at 951 (explaining that a search occurs where there

is a “[t]respass . . . conjoined with that what was present

here: an attempt to find something or to obtain information”).

The inquiry then shifts to whether there is an applicable

exception to the warrant requirement that would allow the

otherwise unauthorized governmental activity.           See Jardines, 133

S. Ct. at 1415—17; Jones, 132 S. Ct. at 951—53. 10


      10
            The Jones/Jardines trespass-intrusion test and the Katz
reasonable-expectation test are alternative tests. See Jardines, 133 S. Ct.
at 1418 (Kagan, J., concurring). Hence, in cases where a Fourth Amendment
search occurred under one of the tests, there is no need to engage in an
                                                              (. . .continued)


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     1. There was no search under the Katz reasonable expectation
                             of privacy test

            As stated, under Katz, to determine whether a person’s

expectation of privacy is reasonable, a person must exhibit an

actual (subjective) expectation of privacy, and that expectation

must be one that society is prepared to recognize as objectively

reasonable.

                         a. Subjective expectation of privacy

            Turning first to the subjective prong, the

determination of whether or a person “exhibited an actual

expectation of privacy,” State v. Texeira, 62 Haw. 44, 48, 609

P.2d 131, 134 (1980), is through a fact-specific process,

“considering all factors on a case-by-case basis,” State v.

Ward, 62 Haw. 509, 515, 617 P.2d 568, 572 (1980).            Here,

Phillips called the 911 operator and requested the police and

ambulance be sent to his home because Tara had been assaulted

and was seriously injured.       When police arrived, the garage door

was open and the interior of the garage was exposed to public



(. . .continued)

inquiry under the other test. See Jardines, 133 S. Ct. at 1417 (declining to
use the Katz test because the approach that the Court announced in Jones was
found applicable). Conversely, where no Fourth Amendment search is found
under one of the tests, the inquiry does not stop there, and the court must
determine whether a search occurred under the other test. See Jones, 132 S.
Ct. at 953 (stating that where there is no search under the Jones/Jardines
test, such as in “[s]ituations involving merely the transmission of
electronic signals without trespass,” a Katz analysis must be conducted
(emphasis added)).




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view, including to the police officers who responded to the

scene.   Further, Phillips motioned from within the garage for

the responding officer to join him inside.         The officer

described Phillips’ gesture as “[m]ore or less inviting me that,

yeah, this is the place you should come, this is the place you

should be.”   Phillips did not contest that his intent was to

invite the officer into the garage.

           The record also does not contain any actions or

statements by Phillips that would indicate that he expected the

garage area to remain private.       To the contrary, until leaving

to go to the police station later that morning, Phillips

remained with officers of the HPD, primarily in the garage area.

Phillips has not disputed his lack of a subjective expectation

of privacy at any point during this case.         Phillips acknowledged

this point at the hearing on the motion to suppress, stating

that the police were in the garage “because, you know,

[Phillips] had called 911 and they were -- they had a right to

be there at the time.”     Phillips also conceded this to the ICA,

stating that “[t]here was nothing intrusive about Officer

Tokunaga’s vantage point because he was permitted to be in

[Phillips’] garage by [Phillips] himself” and that Officer

Tokunaga “was allowed to be in [Phillips’] garage.”

           In sum, Phillips did not exhibit an actual

(subjective) expectation of privacy regarding the presence of


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police in his garage for the following reasons: Phillips

requested the 911 operator to send the police to his home

because Tara had been assaulted; when the police arrived, the

garage door was open and the interior of the garage was exposed

to public view; Phillips invited the police officers to enter

the garage; and the totality of his conduct while the police

were present. 11

                         b. Objective expectation of privacy

           Even if Phillips had exhibited an actual expectation

of privacy, it “must be one that society would recognize as

objectively reasonable” in order for the constitutional

protections against unreasonable searches and seizures to


     11
            The concurring and dissenting opinion (dissent) makes the
accusation that our analysis places on “the defendant . . . an affirmative
obligation to establish that he or she did not consent to a search of a
constitutionally protected area.” Dissent at 3. No such burden is
established. As has always been the case, the defendant need only establish
that the police breached his or her reasonable expectation of privacy under
Katz or that the police engaged in a Jones/Jardines type of prohibited
conduct. If a search has occurred, then the State must demonstrate the
existence of an exception to the search warrant requirement. In this case,
for example, consent would be a possible warrant exception in analyzing
whether the seizure of the hammer, the opening of the closed garbage bin in
Phillips’ garage, and the subsequent seizure of the clothing in the garbage
bin were constitutional.

             Contrary to the dissent’s view, we do not find Phillips’
invitation for the police to enter the exposed area of his garage to be the
same as the requisite consent needed to authorize the warrantless acts in
this case. We therefore analyze the constitutionality of those acts under
the plain view doctrine and the doctrine of inevitable discovery. See infra.
As to the police officers’ entry into Phillips’ garage, we do not reach
whether an exception to the warrant requirement was present because, at the
outset, the relevant circumstances indicate that Phillips did not have a
reasonable expectation of privacy in the exposed areas of the garage and
that, therefore, the act of entry was not a search.




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attach.   Bonnell, 75 Hawaiʻi at 139, 856 P.2d at 1274; Kaaheena,

59 Hawai‘i at 28, 575 P.2d at 466.         The police did not enter

Phillips’ garage of their own initiative; rather, they were

responding to Phillips’ 911 call for police assistance and his

gesturing them into the garage.       Hence, Phillips’ expectation of

privacy was diminished.     See State v. Lopez, 78 Hawaiʻi 433, 442,

896 P.2d 889, 898 (1995) (holding that the defendant’s

expectation of privacy in his home was diminished by permitting

entry by the police); United States v. Williams, No. 14-CR-

20419, 2015 WL 730098, at *8 (E.D. Mich. Feb. 19, 2015) (holding

that when the defendant invited the initial responders into his

apartment to tend to his medical needs, he sacrificed much of

his expectation of privacy); State v. Pearson–Anderson, 41 P.3d

275, 279 (Idaho Ct. App. 2001) (“[B]y making the 911 call, [the

defendant] diminished her reasonable expectation of privacy

within her home by summoning police officers to the premises

with an implied representation that an emergency was

occurring.”).

           In addition, Phillips’ actions demonstrate that he did

not take precautions to insure his privacy in the garage.             See

State v. Holbron, 65 Haw. 152, 154, 648 P.2d 194, 196 (1982)

(stating that the determination of whether a defendant has a

reasonable expectation of privacy in a particular place depends,

in part, on the precautions he or she takes to insure the


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preservation of his or her privacy).         Indeed, Phillips allowed

the garage to become the center of activity for the initial

investigation, including the location of Phillips’ demonstration

of how the purported assailant gained access to the home through

the malfunctioning garage door.        By knowingly and voluntarily

exposing the interior of his garage to the police, cf. State v.

Dias, 62 Haw. 52, 56, 609 P.2d 637, 640 (1980) (“Conduct open to

view and conversations audible to persons standing outside of a

building constitute activities knowingly exposed to the

public.”), and by readily allowing the area to be used by the

emergency responders, any expectation of privacy in the exposed,

visible interior of the garage was not “one that society would

recognize as objectively reasonable.”         Bonnell, 75 Haw. at 139,

856 P.2d at 1274; Kaaheena, 59 Haw. at 28, 575 P.2d at 466. 12              If

Phillips did not wish the garage to be entered into and its

interior observed, he could have kept it closed and secured, or

he could have refrained from motioning for the police to enter




      12
            See also People v. Hobson, 525 N.E.2d 895, 898—99 (Ill. App.
1988) (reasoning that the defendant’s act of opening the overhead door of his
garage indicated that any expectation of privacy he possessed as to the
exposed garage was not one that society would recognize as reasonable);
Tracht v. Comm’r of Pub. Safety, 592 N.W.2d 863, 865 (Minn. Ct. App. 1999)
(entry into open garage for the purpose of knocking on the exposed service
door was not a Fourth Amendment search); State v. Akins, No. C4-99-1066, 2000
WL 271986, at *3 (Minn. Ct. App. Mar. 14, 2000) (no search occurred when a
police officer, without a warrant, entered an open garage “to talk to a
resident who himself is using the garage as a means of access”).




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and directed them to access his home from another entryway.                 Cf.

Dias, 62 Haw. at 56, 609 P.2d at 640.

            Therefore, with neither a subjective expectation of

privacy, nor one that society would recognize as objectively

reasonable, the police officers that Phillips summoned into his

garage did not intrude upon Phillips’ reasonable expectation of

privacy by entering the garage. 13       Having found that the police

did “not invade an individual’s legitimate expectation of

privacy, ‘there is no “search” subject to the Warrant Clause.’”

State v. Meyer, 78 Hawai‘i 308, 312, 893 P.2d 159, 163 (1995)

(quoting Illinois v. Andreas, 463 U.S. 765, 771 (1983)). 14


      13
            We do not find, as the dissent contends, that “because Phillips
invited police in, no constitutionally regulated search occurred when the
police entered Phillips’ home and garage.” Dissent at 2. A search and
seizure occurred, which necessitated a warrant or an exception to the warrant
requirement, when the police recovered the hammer and clothing and opened a
closed receptacle inside the garage. See infra Part III.B—C. We hold only
that the police officers’ act of entering Phillips’ exposed garage, upon
Phillips’ invitation, did not constitute a search.
      14
            The facts of this case similarly do not result in a finding of a
Fourth Amendment search or seizure pursuant to the Jones/Jardines trespass-
intrusion test. This case lacks the hallmark facts involved in both Jones
and Jardines. At the threshold, this case does not meet the first
requirement of the Jones/Jardines test because there was no trespass or
physical intrusion, that is, the act of “entering without permission.”
Black’s Law Dictionary at 951. Phillips called police dispatch to summon the
police to his home and, upon their arrival, affirmatively motioned them to
come forward into his garage.

            Not only was there an absence of trespass or physical intrusion
in this case, but the purpose of the police when they entered Phillips’
garage, objectively examined, was not to conduct a search and collect
evidence. Cf. Jones, 132 S. Ct. at 949; Jardines, 133 S. Ct. at 1416.
Police entered Phillips’ garage to respond to Phillips’ report of a crime, to
prevent any impediment to the medical responders who were treating Tara, and
to assist Phillips or Tara as requested or needed. Thus, the police
officers’ act of entering the garage was not a search under Jones and
Jardines. On the other hand, the act of recovering the hammer and the
                                                              (. . .continued)


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                     2. Prior decisions of this court

            Our determination that Phillips did not have a

reasonable expectation of privacy in exposed areas of the garage

and, thus, that no “search” occurred when the police entered the

garage is in accordance with prior decisions of this court.                 In

State v. Roy, 54 Haw. 513, 510 P.2d 1066 (1973), evidence was

gathered by an undercover agent after he was willingly admitted

into a home by the resident.        Id. at 514, 510 P.2d at 1067.           No

warrant had been obtained by the police.          See id.    In ruling the

evidence admissible, this court agreed with the analysis of the

Supreme Court in Lewis v. United States, 385 U.S. 206 (1966):

“It is unnecessary to determine whether the facts of this case

come within one of [the search warrant] exceptions, however, for

we hold that [the Officer’s] actions did not constitute a search

or seizure as regulated by the Fourth Amendment.” 15           Roy, 54 Haw.


(. . .continued)

clothing was a seizure that required a warrant or an exception to the warrant
requirement. See infra Part III.B—C.

            The dissent disagrees with our conclusion that there was no
intent to search concurrent with the police’s entry, Dissent at 31—32, but
the dissent, in support of this contention, points only to portions of the
record purporting an intent to search after the police entered the garage.
Cf. Florida v. Jardines, 133 S. Ct. 1409, 1415—17 (describing a search as
trespass accompanied by a concurrent intent to gather evidence).
      15
            In Lewis, a defendant invited an undercover agent into his home
to sell the officer illegal narcotics. Lewis, 385 U.S. at 208. The
defendant contended that “any official intrusion upon the privacy of a home
constitutes a Fourth Amendment violation.” Id. In rejecting the defendant’s
analysis and holding that the entry of the officer into the defendant’s home
was “no breach of privacy,” the Court adopted the following analysis:

                                                              (. . .continued)


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at 515, 510 P.2d at 1068 (emphasis added).          Under such

circumstances, the Roy court concluded, “No warrant to ‘search

and seize’ is required . . . .”        Id. at 516, 510 P.2d at 1068

(emphasis added). 16    “It is clear beyond peradventure . . . that

the Fourth Amendment to the U.S. Constitution . . . does not

prohibit the introduction into evidence . . . [of items]

‘seized’ by [the officer.]”       Id. at 516—17, 510 P.2d at 1068.

The court reached a similar conclusion under article I,




(. . .continued)

            [T]his case involves the exercise of no governmental power
            to intrude upon protected premises; the visitor was invited
            and willingly admitted by the suspect. It concerns no
            design on the part of a government agent to observe or hear
            what was happening in the privacy of a home; the suspect
            chose the location where the transaction took place. It
            presents no question of the invasion of the privacy of a
            dwelling . . . .”

Id. at 212 (emphases added). Thus, the Court found that under the
circumstances of a willing invitation, the protections of the Fourth
Amendment are not implicated. Lewis rests upon a determination that the
defendant lacked a reasonable expectation of privacy.
      16
            Under the dissent’s approach, which treats entries into homes and
curtilages as searches per se, the undercover agent in Roy would not have
been able to enter the home even upon the willing invitation of the resident.
This is so because consent must be “knowingly, freely and intelligently”
given, State v. Patterson, 58 Haw. 462, 470, 571 P.2d 745, 750 (1977), and
“[c]onsent, based upon . . . material nondisclosures, can hardly be viewed as
either voluntary or intelligent.” State v. Quino, 74 Haw. 161, 175, 840 P.2d
358, 364 (1992). Thus, under the dissent’s consent theory, no undercover
police officer will ever be able to enter homes and curtilages without first
disclosing his or her real identity in order to procure voluntary, knowing,
and intelligent consent, rendering undercover operations in homes and
curtilages virtually impossible. This result plainly contradicts the holding
of Roy.




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section 7 of the Hawaiʻi Constitution. 17        Id. at 517, 510 P.2d at

1068.

             Thus, this court has held that, under the

circumstances of an invitation to and voluntary admittance of a

government agent into a home by a resident, the protections of

article I, section 7 are not implicated as to the entry into the

home, because such an entry is not a search in a constitutional

sense.     Applying Roy to the present case, it is clear that

Phillips invited and willingly admitted police into his garage

on the morning of September 3, 2008, and thus, the protections

of article I, section 7 were not implicated and the police’s

entry into Phillips’ garage was not a search. 18

             In Lopez, police responded to reports of a home

invasion and robbery.      78 Hawaiʻi at 437, 896 P.2d at 893.

Police arrived while the residents were at home; following an


      17
            Roy references article I, section 5 of the Hawaiʻi Constitution;
article I, section 5 was renumbered to article I, section 7 following the
1978 Constitutional Convention (Ratified November 7, 1978). State v. Okubo,
3 Haw. App. 396, 399 n.4, 651 P.2d 494, 498 n.4 (1982), aff’d, 67 Haw. 197,
682 P.2d 79 (1984).

      18
            In State v. Davidsen, 129 Hawaiʻi 451, 303 P.3d 1228 (App. 2013)
(mem), the holding of Roy was found to include situations in which the
resident is specifically aware that the person he or she has admitted into
his or her home is a law enforcement officer. In Davidsen, police
investigating a theft came to a home to investigate the sale of property
alleged to have been taken in the theft. Id. at *1. The ICA noted that
“[w]hat a person knowingly exposes to the public, even in his own home or
office, is not a subject of Fourth Amendment protection,” id. at *2
(alteration in original) (quoting Katz, 389 U.S. at 351), and that the
resident “no longer maintain[ed] an actual expectation of privacy in those
areas” of his home, id. at *3.




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“initial investigation,” both police and the residents left the

home.   Id.   Based on a suspicion that the home invasion and

robbery were motivated by illicit drug activity by the

residents, the police returned later without permission or

obtaining a search warrant and recovered evidence of drugs.                 Id.

at 438, 447, 896 P.2d at 894, 903.          The drug evidence was ruled

the result of an illegal search.        Id. at 447, 896 P.2d at 903.

The State had argued that, based on the 911 call, the residents’

reasonable expectation of privacy in their home had been

diminished.    Id. at 441, 896 P.2d at 897.        This court partially

agreed.

            When the police initially entered the [residents’] home to
            investigate the robbery that had just taken place, they did
            so with the [resident’s] permission. Thus, during the
            course of this initial investigation, the [resident’s]
            expectation of privacy in their home was, as the
            prosecution contends, “diminished.”

Id. at 442, 896 P.2d at 898 (emphases added).           That is, when a

resident permits police to enter his or her home to investigate

a crime or for other purpose, the resident has not exhibited a

reasonable expectation of privacy into areas knowingly exposed,

and hence, the police’s entry would not qualify,

constitutionally speaking, as a search. 19

      19
            However, that expectation “terminated when the police and the
[residents] closed the doors and left the . . . residence.” As soon as that
occurred, “the [residents’] expectation of privacy in their home was
completely restored.” Lopez, 78 Hawaii at 442, 896 P.2d at 898. Thus, only
following the restoration of the residents’ expectation of privacy did police
activities implicating article I, section 7 occur: “We . . . hold that [the
officer’s subsequent] entrance into the . . . home, whatever the purpose,
                                                              (. . .continued)


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             Thus, these decisions demonstrate that this court will

review an expectation of privacy according to the circumstances

presented, rather than assume that a reasonable expectation of

privacy exists solely based on a location.            See Ward, 62 Haw. at

515, 617 P.2d at 572; Stachler, 58 Haw. at 416, 570 P.2d at

1326.     Roy and Lopez indicate that a resident, who invites and

willingly admits an agent of the government into his or her

home, may not claim a reasonable expectation of privacy into

those areas knowingly exposed.          Here, as in Roy and Lopez, the

police were invited by Phillips into the “garage area” through

his 911 call, his beckoning of police “to come forward” into the

open garage, and his willing admittance of the officers to

respond to and investigate the assault on Tara.             Thus, the

police’s act of entering the garage was not a search in the

constitutional sense.

  B.       The hammer is admissible under the plain view doctrine

             When “a governmental intrusion does not invade an

individual’s legitimate expectation of privacy, [then] there is

no search subject to the Warrant Clause.”            State v. Meyer, 78

Hawai‘i 308, 312, 893 P.2d 159, 163 (1995) (emphasis added).                  In

this case, when the police officers entered the open garage,

(. . .continued)

over six hours after everyone had left was a search in the constitutional
sense.” Id.




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there was no search, and the police officers were authorized to

be where they were.     It is important to note, however, that even

in cases where no search in the constitutional sense has

transpired, seizures of property remain under the restraints of

the Fourth Amendment and article I, section 7.          Soldal v. Cook

Cty., 506 U.S. 56, 68 (1992) (“[S]eizures of property are

subject to Fourth Amendment scrutiny even though no search

within the meaning of the Amendment has taken place.”).            Hence,

the seizure of property inside the garage was valid only if

authorized by a warrant or an exception to the warrant

requirement.   One well-settled exception is the “plain view

doctrine,” which allows the police to seize evidence or

contraband sighted in plain view from a lawful vantage point.

State v. Davenport, 55 Haw. 90, 100—01, 516 P.2d 65, 72 (1973)

(“So long as the searching officer is in a position where he is

lawfully entitled to be, the seizure of any evidence of crime is

permissible.”); see also 1 Wayne R. LaFave, Search and Seizure §

2.2 (5th ed. 2013).     In cases where the police have not invaded

an individual’s legitimate expectation of privacy and are thus

not conducting a search, they are not required to turn a blind

eye to obvious signs of criminality; rather, they are empowered

to summarily seize such evidence or contraband under the “plain

view doctrine.” 20   “[O]nce the intrusion is justified, there is
     20
          The plain view doctrine is commonly applied in situations when
                                                            (. . .continued)


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no requirement of exigency for the police to seize evidence in

plain view.”       Meyer, 78 Hawaiʻi at 316, 893 P.2d at 167 .

            Under the plain view doctrine, there has been neither

an “exploration” for a particular item, nor is the particular

item “hidden.”       Meyer, 78 Hawaiʻi at 312, 893 P.2d at 163.

            What the “plain view” cases have in common is that the
            police officer had a prior justification for an intrusion
            . . . . The doctrine serves to supplement the prior
            justification -- whether it be a warrant for another
            object, hot pursuit, search incident to lawful arrest, or
            some other legitimate reason for being present.

Coolidge v. New Hampshire, 403 U.S. 443, 466 (1971) (emphases

added).    Thus, “‘plain view observations’ do not ‘involve a

search in the constitutional sense.’” 21        State v. Wallace, 80

Hawaiʻi 382, 398, 910 P.2d 695, 711 (1996) (alteration omitted)

(quoting Meyer, 78 Hawaii at 312, 893 P.2d at 163).

            The plain view doctrine requires demonstration by the

State of three factors for the warrantless seizure of evidence

or contraband to be legitimate: (1) prior justification for the

intrusion or proof that the government agents were properly in a

position from which they can view the area involved; (2)


(. . .continued)

police are lawfully engaged in a search pursuant to a warrant. See, e.g.,
State v. Wallace, 80 Hawaiʻi 382, 400, 910 P.2d 695, 713 (1996) (applying the
plain view doctrine to justify the seizure of plastic packets observed during
a search pursuant to a warrant).
      21
            “A search compromises the individual interest in privacy; a
seizure deprives the individual of dominion over his or her person or
property.” Horton v. California, 496 U.S. 128, 133 (1990).




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inadvertent discovery; and (3) probable cause to believe the

item is evidence of a crime or contraband.          Meyer, 78 Hawaiʻi at

314, 893 P.2d at 165; Texas v. Brown, 460 U.S. 730, 736—37

(1983).

       1.    Lawful presence in the area affording plain view

            So long as the “police are lawfully in a position from

which they view an object, if its incriminating character is

immediately apparent, and if the officers have a lawful right of

access to the object, they may seize it without a warrant.”

Meyer, 78 Hawaiʻi at 316, 893 P.2d at 167 (quoting Minnesota v.

Dickerson, 508 U.S. 366, 375 (1993)). 22        Thus, because it has

been established that police entry into the open garage did not

violate Phillips’ reasonable expectation of privacy, the police

presence in his garage was lawful.

            The prior justification for the police presence in his

garage on the morning of September 3, 2008, was conceded by

Phillips in his opening brief to the ICA: “As to the first

factor, there was prior justification for Officer Tokunaga’s

intrusion as he was allowed to be in [Phillips’] garage.”

      22
            In cases where there exists an intrusion by law enforcement, that
intrusion may be justified for a variety of reasons. See Davenport, 55 Haw.
at 98, 516 P.2d at 71 (police intrusion justified under search warrant);
Wallace, 80 Hawaiʻi at 398, 910 P.2d at 711 (same); State v. Jenkins, 93
Hawaiʻi 87, 104, 997 P.2d 13, 30 (2000) (search of vehicle trunk based on
probable cause); State v. Ogata, 58 Haw. 514, 572 P.2d 1222 (1977) (open view
seizure of weapon seen in vehicle incident to valid stop); Meyer, 78 Hawaiʻi
308, 893 P.2d 159 (entry into vehicle on request of arrestee).




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Phillips also conceded this point at the hearing on the motion

to suppress: “So in this case we won’t deny that . . .            [the

police] were there because, you know, [Phillips] had called 911

and they were -- they had a right to be there at the time.”

(Emphasis added).

                         2. Inadvertent discovery

          Although the United States Supreme Court eliminated

the “inadvertent discovery” element from the plain view

exception, Hawaiʻi retains the requirement as necessary to

“prevent[] pretextual article I, section 7 activity.”            Meyer, 78

Hawaiʻi at 314 n.6, 893 P.2d at 165 n.6 (adopting Justice

Brennan’s dissenting opinion in Horton v. California, 496 U.S.

128 (1990)).   Justice Brennan explained:

          [W]e accept a warrantless seizure when an officer is
          lawfully in a location and inadvertently sees evidence of a
          crime . . . But ‘where the discovery is anticipated, where
          the police know in advance the location of the evidence and
          intend to seize it’ . . . there is no reason why the police
          officers could not have obtained a warrant to seize this
          evidence before entering the premises.

Horton, 496 U.S. at 144 (Brennan, J., dissenting) (emphases

added) (quoting Coolidge, 403 U.S. at 470).          Thus, the purpose

of retaining the inadvertent discovery requirement is to ensure

that law enforcement officers are not excused “from the general

requirement of a warrant to seize if the officers know the

location of evidence, have probable cause to seize it, intend to

seize it, and yet do not bother to obtain a warrant particularly




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describing that evidence.”      State v. Cuntapay, 104 Hawaiʻi 109,

118, 85 P.3d 634, 643 (2004) (emphases added); see also Meyer,

78 Hawaiʻi at 314 n.6, 893 P.2d at 165 n.6.         “So long as the

officer is in a position where the officer is lawfully entitled

to be, the seizure of contraband or evidence of crime is

permissible.”   Davenport, 55 Haw. at 101, 516 P.2d at 72.

          It is self-evident that if a law enforcement officer

is unaware of the existence of certain evidence or contraband,

then that law enforcement officer cannot know its location.

Neither can the officer have probable cause to seize, or intend

to seize, such unknown evidence or contraband.          Thus, the

“inadvertent discovery” element of the plain view exception to

the warrant requirement is satisfied if the law enforcement

officer, justifiably present at a given location, is unaware of

the existence of such evidence at issue until the moment of the

discovery.   It is the uncontroverted testimony of Officer

Tokunaga that the hammer was plainly visible in the garage and

entirely exposed.    This is confirmed by the photographic

evidence provided by the State at the hearing on the suppression

motion, which shows a metal hammer with a black handle lying

unconcealed on top of a blue cooler along one wall of the

garage.

          There has been no suggestion that prior to the

discovery of the hammer, law enforcement officers were aware of


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its existence; that is, the officers did not know the location

of a hammer, did not have probable cause to seize a hammer from

Phillips’ residence, and did not arrive at Phillips’ residence

intending to seize a hammer.      In fact, at the moment before the

hammer was discovered, the HPD officers had no reason to suspect

that a hammer was in any way involved in the assault on Tara.

Officer Tokunaga testified that at the time he found the hammer,

he did not know the general facts of the case, nor was any

particular person a suspect.      Further, Officer Tokunaga found

the hammer shortly after his arrival.        There is also no

suggestion that the seizure of a hammer was made as a pretext in

lieu of properly obtaining a warrant.        It follows, therefore,

that Officer Tokunaga’s discovery of the hammer was inadvertent.

Once Officer Tokunaga inadvertently saw the hammer from a

position that he lawfully held, he was not required to ignore

its presence.   Davenport, 55 Haw. at 101, 516 P.2d 65, 72.

          Indeed, Officer Tokunaga’s inadvertent discovery of

the hammer was conceded by Phillips at the hearing: “So in this

case we won’t deny that . . . they discovered the hammer, . . .

and that was lawful . . . .”      Thus, the second requirement of

the plain view doctrine is satisfied.




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   3. Probable cause to believe that the hammer was evidence of a
                                 crime

          Under the third element of a plain-view seizure, there

must be probable cause to believe that the item is contraband or

evidence of a crime.     Meyer, 78 Hawaiʻi at 314, 893 P.2d at 165

In the context of a plain-view seizure, “probable cause” means

such a state of facts as would lead a person of ordinary caution

or prudence to believe and conscientiously entertain a strong

suspicion that the inadvertently observed object was contraband

or evidence of a crime.     See State v. Naole, 80 Hawaiʻi 419, 424,

910 P.2d 732, 737 (1996).

          Probable cause for a plain-view seizure may be

established when the incriminating character of the evidence or

contraband is “immediately apparent.”        Meyer, 78 Hawaiʻi at 316,

893 P.2d at 167.    The surrounding circumstances of an

observation of an object by police are part of the probable

cause determination.     Based on Officer Tokunaga’s observation of

a “spot of blood” on the hammer, it is clear that a reasonable

person would believe and entertain a strong suspicion that the

hammer was evidence of a crime.       The parties do not dispute that

the “spot of blood” on the hammer, observed by Officer Tokunaga

after the hammer’s inadvertent discovery, constituted probable

cause to believe that the hammer was relevant evidence.

Phillips concedes this point: “As to the third factor [of the



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plain view doctrine], there was probable cause to believe [that]

the hammer was evidence of a crime as Officer Tokunaga noticed

what appeared to be blood on the metal portion of the hammer.”

Accordingly, because the facts of this case satisfy all three

prongs of the plain view doctrine, the warrantless seizure of

the hammer was authorized.

              4. The ICA erred in suppressing the hammer

          The ICA’s conclusion that “the intentional search and

seizure of the hammer under the plain view doctrine was not

valid” is analytically flawed.       First, as discussed, there was

no “search” in the constitutional sense.         Although Officer

Tokunaga was instructed to “search” for perpetrators or weapons,

a “search” in the constitutional sense occurs only when there is

a governmental intrusion into a reasonable expectation of

privacy, State v. Kender, 60 Haw. 301, 303, 588 P.2d 447, 449

(1978), or a Jones/Jardines trespass or physical intrusion.

          Officer Keliinui’s colloquial use of the word “search”

is not determinative: “When a governmental intrusion does not

invade an individual’s legitimate expectation of privacy,” or

when a search under the Jones/Jardines test does not transpire,

“there is no ‘search’ subject to the Warrant Clause.”            Meyer, 78

Hawaiʻi at 312, 893 P.2d at 163.       Where there is no Fourth

Amendment or article I, section 7 search, then inadvertently

discovered items in plain view may be seized upon probable cause


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to believe that the items are contraband or evidence of a crime.

Id. at 314, 893 P.2d at 165.        Here, as has been established,

there was no search under the Katz reasonable-expectation test

or the Jones/Jardines trespass-intrusion test.

            Second, the ICA erred in relying on a common

dictionary definition of “inadvertent” when the legal concept of

“inadvertent discovery” was at issue. 23        This court specifically

retained “inadvertent discovery” as a requirement of the plain

view doctrine “in order to foster the objective of preventing

pretextual article I, section 7 activity.”          Meyer, 78 Hawaiʻi at

314 n.6, 893 P.2d at 165 n.6.        Thus, in the context of the plain

view doctrine, inadvertence does not mean “accidental”; it means

that law enforcement officers did not know the location of

evidence, did not have probable cause to seize it, did not

intend to seize it, and were thus logically unable to “obtain a

warrant particularly describing that evidence.”           Cuntapay, 104

Hawaiʻi at 118, 85 P.3d at 643.

            As Phillips did not hold a reasonable expectation of

privacy in his garage during the initial police investigation in

the early morning hours of September 3, 2008, and because there

was no search under the Jones/Jardines trespass-intrusion test,

      23
            Unlike the lay meaning of “inadvertent,” the legal term
“inadvertent discovery” means a “law-enforcement officer’s unexpected finding
of incriminating evidence in plain view.” Black’s Law Dictionary (10th ed.
2014).




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the police entry into his garage was lawful, and no search in

the constitutional sense occurred.         Since the discovery of the

hammer was inadvertent and there was probable cause to seize it,

its seizure was lawful.     Thus, there was no requirement for the

police to have first obtained a search warrant before seizing

the hammer.

          Further, when performing a lawful search, plain-view

seizure of items outside of the scope of the warrant is not

precluded by the intentional looking for or examining of items

within the scope of the search, provided the other elements of

plain view are met.     Compare Wallace, 80 Hawaiʻi at 399, 910 P.2d

at 712 (seizure valid under plain view doctrine where officer,

during a valid intentional search of a bag in a car,

inadvertently observed contraband contained in clear plastic

packets), and State v. Jenkins, 93 Hawaiʻi 87, 104, 997 P.2d 13,

30 (2000) (gun protruding from a duffle bag legitimately seized

after being observed in plain view during a legitimate

warrantless search of a car trunk), with Cuntapay, 104 Hawai‘i at

118, 85 P.3d at 643 (purported plain-view seizure not proper

when police had no prior justification for the intrusion into

the washroom, and discovery found not inadvertent because

observation of contraband required officer to move a “‘washing

machine away from the wall in order to closely inspect’ the

‘evidence that otherwise would not have been visible to


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police’”).    Indeed, if the inadvertency element of a plain-view

seizure required an “accidental” discovery, then the plain view

doctrine could never apply to a seizure of evidence that is

discovered during execution of a search warrant issued to find

unrelated evidence.     Such an interpretation has been rejected by

this court.    Davenport, 55 Haw. at 100, 516 P.2d at 72 (holding

that an otherwise permissible search is not rendered unlawful

merely because a different contraband is discovered than what

was listed in the warrant).

          Thus, the ICA’s application of the plain view doctrine

was flawed for the following reasons: article 1, section 7 of

the Hawaiʻi Constitution was not offended by the police entry

into Phillips’ garage during the initial investigation into the

assault of Tara on the morning of September 3, 2008; no search

in the constitutional sense occurred as a result of the

observation of the hammer; and the definition of inadvertent

discovery, as an element of a plain-view seizure, is provided by

our case law, and reliance on a dictionary was not necessary.

As a result, the ICA gravely erred in suppressing the hammer.

          C.      The clothing was inevitably discovered

          As already noted, the facts and circumstances of this

case manifest that Phillips did not possess a reasonable

expectation of privacy in the exposed interior of his garage,

nor did the police officers’ entry into the garage constitute a


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search pursuant to the Jones/Jardines trespass-intrusion test.

Hence, the police were authorized to enter the garage; however,

Phillips’ invitation to enter in no way authorized the police to

summarily open closed receptacles inside the garage and seize

evidence hidden from plain view.        The instant the police engaged

in such activities, a search and seizure in a constitutional

sense occurred, the validity of which required either a valid

warrant or an exception to the warrant requirement.            The circuit

court in this case determined that the police would have

inevitably discovered the clothing found inside the garbage

bin. 24    Under the inevitable discovery rule, evidence obtained in

violation of article I, section 7 of the Hawaii Constitution may

be admitted as evidence at trial if the State presents clear and

convincing proof that the evidence would inevitably have been

discovered by lawful means.       State v. Lopez, 78 Hawaiʻi 433, 451,

896 P.2d 889, 907 (1995).       Thus, the inevitable discovery

exception hypothesizes that the evidence subject to the

exclusionary rule would have been found through legal means

independent of the unlawful seizure.         Id.




      24
            By applying an exception to the exclusionary rule, the circuit
court implicitly concluded that Officer Frank’s discovery of the clothing in
the garbage bin violated article 1, section 7 of the Hawaiʻi Constitution.
See State v. Tanaka, 67 Haw. 658, 661, 701 P.2d 1274, 1276 (1985) (concluding
that a reasonable expectation of privacy exists in a closed garbage bag).




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          The hypothetical situation in this case is the warrant

that was subsequently issued to the police after the clothing

had already been discovered and seized.         Two issues are

therefore germane: first, whether there was probable cause for

the issuance of a warrant even without statements unlawfully

obtained from Phillips and any information derived from the

clothing found inside Phillips’ garbage bin, and second, whether

the clothing would have been found pursuant to that warrant.

See State v. Sepa, 72 Haw. 141, 144, 808 P.2d 848, 850 (1991)

(holding that a warrant based on an affidavit containing

material misstatements could nonetheless establish probable

cause if “the affidavit’s content, with the false material

omitted, is sufficient to establish probable cause”); Lopez, 78

Hawaii at 447—48, 896 P.2d at 903—04 (stating that “a search

warrant is not constitutionally defective because it is based,

in part, on illegally seized evidence where sufficient probable

cause exists to issue the warrant without relying on the

suppressed evidence”).

          Turning to the first issue, a search warrant must

always be predicated “upon a finding of probable cause supported

by oath or affirmation.”      State v. Navas, 81 Hawaiʻi 113, 116,

913 P.2d 39, 42 (1996).     “Probable cause exists when the facts

and circumstances within one’s knowledge and of which one has

reasonably trustworthy information are sufficient in themselves


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to warrant a person of reasonable caution to believe that an

offense has been committed.”      Id.

           An affidavit in support of a finding of probable cause

should “set forth ‘some of the underlying circumstances’ from

which the police concluded that the objects sought to be

recovered were where they claimed they were, and disclose some

of the underlying reasons from which the affiant concluded that

the information was ‘reliable.’”        Sepa, 72 Haw. at 143—44, 808

P.2d at 850 (quoting State v. Kanda, 63 Haw. 36, 620 P.2d 1072

(1980)).   The determination of whether probable cause supported

the issuance of a search warrant is reviewed de novo under the

right/wrong standard of review.       Navas, 81 Hawaiʻi at 123, 913

P.2d at 49.

           The Affidavit that Detective Sunia submitted in

support of her application for a search warrant stated that

Phillips told responding officers that he left his residence and

went for a ride in his car because he could not sleep.            Phillips

told Officer Collins that before leaving his residence, he

closed the garage door but left the door leading into the

kitchen from the garage unlocked.        Detective Sunia emphasized in

her Affidavit that this was inconsistent with Phillips’ account

of the events to Officer Ahn.       Phillips told Officer Ahn that he

left the garage door open when he left.         There was no indication

of forced entry.


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          Tara sustained a massive blunt force trauma to her

head, was in critical condition, had a broken wrist, and had

some of her fingernails ripped off.        A bloody footprint was

present on the sheet covering the bed in which Tara was found.

There was blood splatter on the walls of the bedroom in which

Tara was found, but there was no indication of any transfer of

large amounts of blood on the stairs or other rooms in the

residence.

          Police officers found a hammer lying by the garage

door, and Phillips admitted that he owned that hammer.            The

hammer found in the garage had traces of what appeared to be

dried blood.

          Phillips informed one HFD firefighter that he had been

arguing with Tara earlier, before he left for a drive.            One of

the children informed Officer Rivera that, on September 3, 2008,

Tara and Phillips had been arguing “because [Phillips was]

texting other women and cheating on [Tara].”          A neighbor stated

that, on September 1, 2008, at around 10:00 a.m., “he heard

people arguing inside” the residence and that, on September 3,

2008, at around 3:30 a.m., “he heard a loud thumping sound

coming from the residence . . . , as if someone had fallen down

the stairs.”   The search warrant application was further

supported by Detective Sunia’s statement in her affidavit that

based on her experience, training, and qualifications, homicide


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suspects use their vehicles and personal property, including

bags, pouches, and closed containers, to conceal

instrumentalities utilized in the commission of the crime.             See

State v. Groves, 65 Haw. 104, 114, 649 P.2d 366, 373 (1982)

(relying on a police officer’s experience and expertise to

establish probable cause); accord State v. Chong, 52 Haw. 226,

231—32, 473 P.2d 567, 571 (1970).

           The circuit court found that the foregoing facts

constituted clear and convincing evidence that, even if

illegally obtained statements and information relating to the

discovery and seizure of the clothing were redacted from the

affidavit, probable cause existed to justify the issuance of a

warrant.   We conclude that the circuit court did not err in

determining that these facts would have produced in the mind of

a reasonable person a firm belief that a criminal offense was

committed in Phillips’ house and against Tara.          See Lopez, 78

Hawaiʻi at 454 n.30, 896 P.2d at 910 n.30.

           The second issue--whether the clothing would have been

found pursuant to the warrant--in turn has two components:

whether the scope of the warrant would have allowed the police

to discover and thereafter seize the clothing, and whether the

circumstances are such that the clothing would still have been

in the garbage bin after the police secured and thereafter

executed a search warrant.


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           As to scope, the search warrant authorized the police

to search “the . . . residence as well as any and all closed

containers contained within, which are currently secured and

being watched by an officer with the Honolulu Police

Department.”    (Emphasis added).     Further, the warrant permitted

the police to search and seize “all items of evidence,

including, but not limited to physical, transfer, and trace

evidence (personal property and/or biological evidence), which

would tend to establish the identi[t]y of the person(s)

occupying the vehicle and/or residence, and which may include .

. . articles of clothing.”      The scope of the warrant thus

provided clear and convincing evidence that the police would

have discovered the clothing in the garbage bin once the warrant

was executed.

           As to whether the clothing would still have been in

the searched premises when the warrant was executed, the

affidavit expressed that the residence was “being secured . . .

by the presence of police units on scene” and was “unoccupied

and within an enclosed area, inaccessible to members of the

public.”   The affidavit also stated that closed containers

within the residence were “currently secured and being watched

by an officer with the Honolulu Police Department.”           These facts

indicate that nobody, not even Phillips, was allowed to access

or occupy any part of Phillips’ residence, and a police officer


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was standing guard while a warrant application was being

prepared for the examination and approval of a judge.            Hence,

there is no merit in Phillips’ argument that he could have

returned to his residence and tampered with the clothing between

the time when he left the police station and the execution of

the warrant, thereby precluding the inevitable discovery of the

clothing.

            The circuit court thus concluded, and we agree, that

the government satisfied its “burden to show by clear and

convincing evidence that the clothing found within a covered

trash container in the garage would inevitably have been

discovered . . . under the authority of the September 3, 2008,

search warrant covering the residence and its garage and any

containers located therein.”

    D.      The dissent misapprehends and misapplies the Katz
             reasonable expectation of privacy paradigm

            For the dissent, any entry by the police into a home

or its curtilage is a search under the Katz reasonable

expectation of privacy test, requiring consent (an exception to

the warrant requirement) in order to pass constitutional muster.

Dissent at 18—24.    This is true even in cases where the interior

of that area has been knowingly exposed for anyone to view, the

police were invited there by the resident, and the police

purpose upon entry is not to gather evidence.          The dissent




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effectively creates a per se rule that would find any entry,

including those elicited by an invitation, into a home or its

curtilage as a search.

          Further, the dissent reasons that the invitation by

the resident to the police to respond to an emergency or a

report of suspected criminal activity constitutes an implied

consent for the police not only to enter the home but also “to a

brief initial search of the premises to determine whether there

were other victims or perpetrators present at the scene.”

Dissent at 2.

          According to the dissent’s summary of its recommended

test,

          when a defendant calls the police to a place in which
          he/she has a reasonable expectation of privacy, and the
          defendant reports that a crime has been committed there,
          he/she consent to a brief search of the premises by the
          police so that the police can secure the location and
          determine whether there are other possible victims or
          perpetrator(s) present at the scene. The defendant’s
          consent, however, does not extend to a wholesale search of
          the premises such that the police are then free to go
          through bathroom and kitchen cabinets, personal effects, or
          closed containers.

Dissent at 29—30.    Thus, this “consent” to search applies

automatically to a place where the caller has a reasonable

expectation of privacy.

          The dissent’s approach is fundamentally flawed for

four reasons: (1) it is inconsistent with the precept that a

search in the constitutional sense does not arise solely based

on the nature and character of the area upon which the police


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intrusion is directed; (2) it is not supported by precedent; (3)

it flows from the emergency exception to the warrant requirement

that Hawaii has never adopted; and (4) it is contrary to the

fundamental tenets of the consent doctrine.

    1. Protections Afforded by the Fourth Amendment and Article
      I, Section 7 Do Not Automatically Attach Based on the Place
                                Involved

          The Supreme Court, and later this court, “rejected the

idea that some areas are automatically accorded constitutional

protection while others are not.”        State v. Stachler, 58 Haw.

412, 416, 570 P.2d 1323, 1326 (1977); State v. Kaaheena, 59 Haw.

23, 26 & n.4, 575 P.2d 462, 465 & n.4 (1978) (recognizing that

pursuant to Katz, traditional constitutionally protected areas,

such as homes, are “no longer afforded automatic constitutional

protection”); Katz v. United States, 389 U.S. 347, 351 (1967).

This rejected idea, however, forms the very basis for the

dissent’s creation of a per se rule that a person always has a

reasonable expectation of privacy in his or her home and its

curtilage.

          The dissent thus rejects the long-established

principle that “[w]hat a person knowingly exposes to the public,

even in his own home or office, is not a subject of Fourth

Amendment protection.”     Stachler, 58 Haw. at 416, 570 P.2d at

1326 (quoting Katz, 389 U.S. at 351).        By adhering to the view

that any entry into a home or its curtilage--even those whose


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interior has been knowingly exposed to the public--is a search,

the dissent also discredits the practice in this jurisdiction to

engage in a case-by-case consideration of different factors in

the course of determining whether a search has occurred within

the meaning of the Fourth Amendment and article I, section 7.

State v. Ward, 62 Haw. 509, 515, 617 P.2d 568, 572 (1980). 25               The

determination of whether a search in a constitutional sense has

transpired does not depend solely on the nature and character of

the area upon which the police intrusion is directed, but it is

informed by the confluence of relevant circumstances bearing

upon the determination of whether a person has a reasonable

expectation of privacy in an area or whether a Jones/Jardines

type of prohibited conduct has occurred.          Id.   The manifest

flaws in the dissent’s search doctrine are underscored by its

determination that despite Phillips having called the police to

his home because of an assault on Tara that resulted in serious

injuries, despite the garage door being open and its interior

exposed to the public, despite Phillips having invited the

police to enter his garage, and despite the record not

containing any actions or statements by Phillips indicating that

     25
            The dissent claims that its proposed analytical framework is the
“unanimous approach” followed by other jurisdictions. Dissent at 2. But see
supra note 12. In any event, the holdings of the cases that the dissent
cites do not stand for the proposition that any police entry into a home or
its curtilage is per se a search in the constitutional sense. See infra Part
D.2.




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the garage area was private, the dissent concludes that Phillips

had a reasonable expectation of privacy in his garage.             Such an

approach would leave very little, if anything, remaining of a

meaningful Katz analysis. 26

           2. Supreme Court precedents do not support the dissent’s
                                     analysis

              The dissent asserts that its approach flows directly

from Mincey v. Arizona, 437 U.S. 385 (1978); Flippo v. W.

Virginia, 528 U.S. 11 (1999) (per curiam); and Thompson v.

Louisiana, 469 U.S. 17 (1984) (per curiam).           Dissent at 25—26.

The fundamental issue in these cases was the validity of the

police’s reentry into homes after the exception that legitimized

their initial entry had expired.        See Mincey, 437 U.S. at 391—

92; Flippo, 528 U.S. at 11, 13—14; Thompson, 469 U.S. 17, 18-19,

21—22.      None of these cases involved a home or its curtilage

that its owner or resident knowingly exposed to public view to

such an extent that a reasonable expectation of privacy in the

area would be found lacking. 27      Additionally, none of these cases

      26
             The dissent makes the assertion that our application of the Katz
and Jones/Jardines tests results in the evisceration of privacy rights.
However, we simply apply Katz, as that case has been understood since its
inception, and Jones/Jardines to the facts of this case. Our continued
application of the Katz and the Jones/Jardines tests yields only the
conclusion that the entry of the police, pursuant to a resident’s invitation,
to knowingly exposed premises is not a search. However, a subsequent seizure
or search, including the exploration of concealed areas and closed
containers, must be authorized by a warrant or an exception to the warrant
requirement.
      27
            The same is true for the state appellate cases from which the
dissent extracts its proposed analytical framework.



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held that mere physical entry, upon a resident’s invitation,

into knowingly exposed premises automatically constitutes a

search for which a warrant or an exception to the warrant

requirement is mandatory. 28      Hence, these cases do not support

the dissent’s position.

            Further, in each of these cases, the Supreme Court

found that the limits of the States’ “emergency” exception had

been exceeded, impelling the need for a warrant (or a recognized

exception to the warrant requirement) to legitimize the ensuing

general exploratory search by the police.          Mincey, 437 U.S. at

392; Flippo, 528 U.S. at 14; Thompson, 469 U.S. at 22.             Hawaiʻi

      28
            In Mincey, the officers gathered evidence for four days,

            during which period the entire apartment was searched,
            photographed, and diagrammed. The officers opened drawers,
            closets, and cupboards, and inspected their contents; they
            emptied clothing pockets; they dug bullet fragments out of
            the walls and floors; they pulled up sections of the carpet
            and removed them for examination. Every item in the
            apartment was closely examined and inventoried, and 200 to
            300 objects were seized.

Mincey, 437 U.S. at 389. In Flippo, the police reentered a cabin where a
crime was apparently committed and, in the course of approximately sixteen
hours, “took photographs, collected evidence, and searched through the
contents of the cabin.” Flippo, 528 U.S. at 12. In Thompson, the
investigators conducted a general exploratory search for evidence of a crime
and examined each room of the residence involved. Thompson, 469 U.S. at 18-
19.

            State v. Patterson, 58 Haw. 462, 468, 571 P.2d 745, 749 (1977),
the sole Hawaii case that the dissent relies upon, also does not support the
dissent’s approach. In that case, this court did not hold that mere entry
into the defendant’s home was a search in the constitutional sense. Id. at
467, 571 P.2d at 748. Further, the fact that no search was found to have
been conducted when the police entered the defendant’s home upon the
defendant’s invitation is consistent with our conclusion in this case that
the police did not engage in a search when they entered the exposed interior
of Phillips’ garage on Phillips’ invitation.




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has not considered whether article I, section 7 encompasses an

emergency exception to the warrant requirement.           Consequently,

there has been no occasion for this court to determine the

limitations of such an exception as set forth in Mincey,

Thompson, and Flippo.

           While consent is a recognized exception to the search

warrant requirement, an exception is relevant only if there was

a Fourth Amendment search. 29      In this case, because Phillips did

not have a reasonable expectation of privacy in the exposed

interior of his garage, the police officers’ entry into the

garage did not constitute a Fourth Amendment search.            Thus, as

to the police officers’ entry, it is not appropriate to evaluate

the applicability of a warrant exception.

      3. The dissent’s approach is a relabeling of the emergency
                   exception to the warrant requirement

           The “consent” search that the dissent proffers,

allowing police called to a place to search for victims or

     29
            Other jurisdictions, based on an emergency response at a home,
have employed an implied consent analysis. See McNair v. Virginia, 521
S.E.2d 303 (Va. Ct. App. 1999) (defendant impliedly consented to a police
search of his home after having called for an emergency response to his home
due to a robbery); State v. Dowling, 387 So. 2d 1165 (La. 1980) (defendants
impliedly consented to police search of home after having called an emergency
response to their home to investigate a shooting). However, as noted, Hawaiʻi
has not addressed whether article I, section 7 encompasses an emergency
exception; thus, we have had no reason to apply an implied consent doctrine
to justify police entry into a home. Instead, Roy, Lopez, and Davidsen have
found police entry into a home lawful when the particular circumstances of
the case demonstrate that the resident lacked a reasonable expectation of
privacy.




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perpetrators, originates from Mincey, which held that in

instances where someone is in need of immediate aid or in

homicide crime scenes, “the Fourth Amendment does not bar police

officers from making warrantless entries and searches” and

allows the police to “make a prompt warrantless search of the

area to see if there are other victims or if a killer is still

on the premises.”    Mincey v. Arizona, 437 U.S. 385, 392 (1978);

see also Thompson v. Louisiana, 469 U.S. 17, 21 (1984); Flippo

v. W. Virginia, 528 U.S. 11, 14 (1999) (per curiam).           The

dissent appropriates the Mincey victim-or-perpetrator search,

which is predicated on an emergency exception to the warrant

requirement, as the allowable scope of the “consent” search that

may be conducted at a home or its curtilage by virtue of a

person’s call for the police to respond to an apparent crime

scene.   Thus, the dissent advocates adoption of an emergency

exception to the warrant requirement, which this court has never

accepted and which neither party raised, under the guise of the

consent exception.

           This observation is further supported after examining

the state appellate cases that the dissent relies upon.            Those

cases allow police officers called to respond to an apparent

crime scene to search the premises to the extent reasonably

related to the routine investigation of the offense and the

identification of the perpetrator.         See State v. Fleischman, 157


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Ariz. 11, 15, 754 P.2d 340, 344 (Ct. App. 1988); State v. Brady,

585 So. 2d 524, 529 (La. 1991); State v. Dowling, 387 So. 2d

1165, 1169 (La. 1980); State v. Fredette, 411 A.2d 65, 69 (Me.

1979).   The dissent, however, abandons the holdings of these

cases as to the allowable scope of a consent search and instead

suggests that the search should be limited to a Mincey victim-

or-perpetrator search.      Consequently, the dissent conflates the

consent and emergency exceptions, each of which is distinct from

the other, in order to create a framework that has never been

adopted or utilized in this jurisdiction.

4.    The dissent’s approach disregards the fact-intensive nature
                            of consent

              Even if one were to accept the dissent’s consent-

based approach, it is beyond question that the validity of

consent is “determined from the totality of circumstances

surrounding the defendant’s purported relinquishment of a right

to be free of unreasonable searches and seizures.”            State v.

Russo, 67 Haw. 126, 137, 681 P.2d 553, 562 (1984).            The

dissent’s approach, on the other hand, does away with the case-

by-case, fact-specific determination that always accompanies the

analysis of both the validity and scope of consent searches.

According to the dissent, in every case in which a person calls

the police to respond to a home or its curtilage because of an

apparent crime, the person has effectively consented for the




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police to search the premises for the purpose of identifying

other victims or finding whether the perpetrator is still

present. Dissent at 20—24, 29—30.         Thus, the dissent crafts an

approach that preordains both the validity and scope of one’s

consent based singularly on the fact that the occupant of a home

or its curtilage has called the police to respond to an apparent

crime, to the exclusion of all other facts and circumstances.

This approach is in contravention of well-settled canons that

have guided courts for decades whenever consent searches are at

issue.     See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)

(explaining that the validity of consent is assessed by “the

totality of all the surrounding circumstances” and enumerating

several factors that may be taken into account in the analysis);

State v. Won, 137 Hawaii 330, 340, 372 P.3d 1065, 1075 (2015)

(“In Hawaii, consent is measured under an analysis examining the

totality of the circumstances.”); State v. Russo, 67 Haw. 126,

137, 681 P.2d 553, 562 (1984) (accord); State v. Merjil, 65 Haw.

601, 605, 655 P.2d 864, 868 (1982) (accord).

             Additionally, this court is not in a position to

determine as a matter of law the presence and scope of consent

when it was not litigated in the trial court. 30          Whether consent


      30
            Also notable is that neither party raised the applicability of
the doctrine of consent to the facts of this case, and hence, this issue is
not properly before this court. State v. Moses, 102 Hawaii 449, 456, 77 P.3d
                                                              (. . .continued)


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to search has been given voluntarily under the totality of all

the circumstances is a question of fact to be determined by the

trial court.       State v. Patterson, 58 Haw. 462, 468, 571 P.2d

745, 749 (1977).       Consent means that acquiescence to the

government’s search must be “in fact, free[] and voluntar[y].”

Nakamoto v. Fasi, 64 Haw. 17, 21, 635 P.2d 946, 951 (1981).

            On appellate review, the findings of a trier of fact

regarding the validity of a consent to search must be upheld

unless clearly erroneous.       State v. Ganal, 81 Hawaiʻi 358, 368,

917 P.2d 370, 380 (1996).       Here, however, the trier of fact made

no determination regarding the existence or validity of consent

to a search because consent was never argued at the motion

(. . .continued)

940, 947 (2003) (“As a general rule, if a party does not raise an argument at
trial, that argument will be deemed to have been waived on appeal; this rule
applies in both criminal and civil cases.” (citing State v. Ildefonso, 72
Haw. 573, 584, 827 P.2d 648, 655 (1992))). Thus, in order for this court to
reach this issue, it would have to be noticed as plain error. While it is
accepted that an appellate court may affirm a lower court’s judgment on any
ground in the record supportive of affirmance, see State v. Dow, 96 Hawaii
320, 326, 30 P.3d 926, 932 (2001), to uphold the circuit court’s ruling as to
Phillips’ motion to suppress unlawful seizure of evidence upon a theory never
presented “would raise serious questions of due process.” United States v.
Parrilla Bonilla, 648 F.2d 1373, 1385-86 (1st Cir. 1981); see Cole v.
Arkansas, 333 U.S. 196, 202 (1948) (“To conform to due process of law,
petitioners were entitled to have the validity of their convictions appraised
on consideration of the case as it was tried and as the issues were
determined in the trial court.”). Notably, Phillips did not testify at the
motion hearing and at the trial. Arguably, however, if the issue of implied
consent were raised as a legal theory that justified the police conduct in
this case, Phillips would have been called to testify as to his actions and
the voluntariness of his purported consent in order to refute its existence,
validity, or scope. Accordingly, as Phillips aptly contends, by affirming
the circuit court’s motion to suppress ruling based upon a fact-driven theory
that was neither raised in nor considered by the circuit court, the dissent
effectively deprives Phillips of the right to meet and defend against
allegations of implied consent, raising “serious questions of due process.”




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hearing or in the trial court.        Thus, in the absence of any

consideration or a finding by the trial court regarding consent,

the dissent’s determination that the consent exception to the

warrant requirement applies to the factual circumstances of this

case is contrary to the approach of our prior holdings.

            If the dissent were to duly apply the doctrine of

consent as an exception to the warrant requirement, its

determination would require vacating that portion of the order

denying Phillips’ suppression motion and remanding the case to

the circuit court for a determination of whether consent had,

“in fact, [been] freely and voluntarily given.”           Patterson, 58

Haw. at 468, 571 P.2d at 749 (1977); see, e.g., State v.

Kaleohano, 99 Hawaiʻi 370, 56 P.3d 138 (2002) (holding that

remand was necessary to give the trial court the opportunity to

make specific findings on voluntariness because deciding the

issue on appeal without such findings amounts to the usurpation

of the factfinder’s role). 31      Thus, this court can affirm or

vacate a finding of free and voluntary consent to a search, but

it should not make a determination of consent without providing

an opportunity to the parties to provide testimony upon the
      31
            See also Thompson, 469 U.S. at 23 (in response to arguments that
the search should be upheld as consensual, stating, “Because the issue of
consent is ordinarily a factual issue unsuitable for our consideration in the
first instance, we express no opinion as to whether the search at issue here
might be justified as consensual.”); Flippo, 528 U.S. at 15 (making the same
response to arguments that the search could be upheld under an implied
consent theory).




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issue of consent and without allowing the trial court to make

relevant factual findings.

           In Russo and Nakamoto, consent was argued at the trial

court, and the appellate courts’ review considered the factual

determinations.    By contrast, the analysis of the dissent would

provide as a matter of law that the facts of this case implies

the consent of a resident to a search of his or her garage for

the purpose of searching other victims or the perpetrator; this

approach is inconsistent with our prior decisions holding that

consent is a question of fact.

                           E.     Restitution

           As a result of the injuries sustained in the attack,

Tara was in a coma when she was admitted to the hospital on the

morning of September 3, 2008.       Although she regained

consciousness, she was never able to live on her own after the

attack.   No evidence at trial or sentencing was presented

regarding any preexisting conditions or subsequent injuries or

illnesses that may have caused her death.

           The State requested that Tara’s mother be reimbursed

for funeral and related expenses.        Phillips argued that he

should not be liable for any additional payment because he had

made “very large payments for a couple years to” Tara’s mother,

Tara died well over a year after the attack, and there was “no

evidence presented . . . no doctor’s testimony” regarding the


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cause of death; consequently, he also requested a reduced amount

of restitution. 32

            The circuit court found that Tara “was in a coma,”

suffered from “head injuries,” “had to be taken to a Florida

nursing home, and there died. . . . She would not have died but

for his conduct.”     Based on its finding of a nexus between

Phillips’ actions and Tara’s death, the circuit court awarded

restitution for funeral expenses under HRS § 706-646. 33           The ICA

did not reach this issue, having ordered suppression of the

hammer, remanding the case for retrial, and declaring all other

points on appeal moot.

            HRS § 706-646 requires a court to order restitution

for “losses suffered by the victim or victims as a result of the

defendant’s offense.”      A party’s conduct “is a legal cause of


      32
            Phillips also argues that the parties’ stipulation that Tara’s
death was unrelated to the attack prevents an award to Tara’s mother to
recover funeral related expenses. However, the parties’ stipulation to a
fact for purposes of trial does not supersede the court’s responsibility to
independently determine a relevant factual issue in assessing the
applicability of restitution as part of sentencing. A court’s determination
of a fact at sentencing, for example, may be premised upon evidence adduced
at sentencing that was not introduced at trial. Consequently, the sentencing
court was not bound by the trial stipulation.
      33
            HRS § 706-646 (2013) provides, in relevant part:

      (2) The court shall order the defendant to make restitution for
reasonable and verified losses suffered by the victim or victims as a result
of the defendant’s offense when requested by the victim. . . .

      (3) . . . Restitution shall be a dollar amount that is sufficient to
reimburse any victim fully for losses, including but not limited to . . .
[m]edical expenses [and] [f]uneral and burial expenses incurred as a result
of the crime.”




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harm to another if . . . his conduct is a substantial factor in

bringing about the harm.”      Knodle v. Waikiki Gateway Hotel,

Inc., 69 Haw. 376, 390, 742 P.2d 377, 386 (1987) (quoting

Restatement (Second) of Torts § 431 (Am. Law. Inst. 1965)).                The

conduct “need not have been the whole cause or the only factor .

. . bringing about the . . . plaintiff’s injuries,” id. (quoting

Mitchell v. Branch, 45 Haw. 128, 132, 363 P.2d 969, 973 (1961)),

but some “nexus” is required in order to award restitution under

HRS § 706-646.    State v. Domingo, 121 Hawaiʻi 191, 195, 216 P.3d

117, 121 (App. 2009) (holding that where nexus was lacking,

restitution could not be imposed).

          To determine whether a sufficient nexus exists for the

application of HRS § 706-646, a court must determine whether the

evidence supports a finding that the defendant’s conduct was the

cause of or aggravated the victim’s loss.         Id. at 195, 216 P.3d

at 121 (“Absent evidence that [defendant’s] conduct caused or

aggravated [victim’s] injuries or caused [victim’s] death, no

causal relationship between [defendant’s] criminal act and a

victim’s losses is shown and restitution may not be imposed

pursuant to HRS § 706–646.”).

          A constitutionally valid sentence is reviewed for a

plain and manifest abuse of discretion.         State v. Kumukau, 71

Haw. 218, 227, 787 P.2d 682, 686 (1990).         In this case, the

evidence at trial and at sentencing plainly demonstrated a


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sufficient nexus between Phillips’ attack on Tara and her

subsequent death, providing the requisite basis for the circuit

court to order restitution for Tara’s funeral-related expenses.

Thus, the circuit court’s award of restitution was not an abuse

of discretion.

                         IV.      CONCLUSION

            Analysis under our search and seizure jurisprudence

proceeds in a logical manner, and the proper starting point for

a search and seizure analysis is whether a constitutionally

proscribed search occurred.      A search in the constitutional

sense occurs when, under Katz, the government invades a person’s

reasonable expectation of privacy or when, under Jones and

Jardines, the government physically intrudes--that is, enters

without permission--a constitutionally protected area for the

purpose of collecting evidence.       Here, the police officers that

Phillips summoned into his garage did not invade any reasonable

expectation of privacy.     Further, police did not physically

intrude into Phillips’ garage with the intent to gather

evidence.    Because there was no search related to the entry of

the garage, exceptions to the search warrant requirement, such

as consent, are not pertinent to the analysis.

            While the police were lawfully in the garage

conducting their initial check of the residence following a

reported home invasion and a brutal assault, the hammer was


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observed by HPD officers in plain view, and there was probable

cause to seize it.    Thus, the hammer was recovered as a valid

plain-view seizure.     With respect to the clothing, there was

clear and convincing evidence that it would have been inevitably

discovered under the authority and scope of the search warrant

that the police later obtained that day; thus, the warrantless

seizure of the clothing from the inside of the closed garbage

bin within Phillips’ garage was lawful.

            Lastly, because there was a sufficient nexus between

Phillips’ actions and the expenses incurred by Tara’s family,

the circuit court did not err in its restitution order.

            Consequently, the ICA Judgment on Appeal is reversed,

and the circuit court’s amended judgment of conviction is

affirmed.

Stephen K. Tsushima                     /s/ Sabrina S. McKenna
for petitioner
                                        /s/ Richard W. Pollack
Randall K. Hironaka
for respondent                          /s/ Rhonda A. Nishimura




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