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                                                                Electronically Filed
                                                                Supreme Court
                                                                SCWC-XX-XXXXXXX
                                                                28-JUN-2019
                                                                02:26 PM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                 ---o0o---


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

                                     vs.

        JAMES WELDON, also known as James William Weldon,
                  Petitioner/Defendant-Appellee.


                             SCWC-XX-XXXXXXX

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
               (CAAP-XX-XXXXXXX; CR. NO. 13-1-1351)

                              JUNE 28, 2019

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

                OPINION OF THE COURT BY NAKAYAMA, J.

          Article I, section 7 of the Hawai#i Constitution

ensures that “[t]he right of the people to be secure in their

persons, houses, papers and effects against unreasonable
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searches, seizures and invasions of privacy shall not be

violated[.]”    This right is guaranteed to every person, without

regard to the wealth of the individual or the place and time at

which the individual is stopped.          In this case, we reaffirm these

fundamental principles and conclude that evidence discovered when

the police illegally stopped and seized Petitioner/Defendant-

Appellee James Weldon (Weldon) is inadmissible at trial.

            In the early morning of June 4, 2013, Weldon was

approached by Honolulu Police Department (HPD) police officers

while he was lying down on a concrete slab adjacent to an

apartment complex on Waikîkî beach.          Several police officers

approached him intending to address whether certain items

(namely, charcoal embers, cooked meat, and empty beer bottles) in

the vicinity belonged to him.        When an officer asked Weldon to

provide his identification, he provided a Veterans Affairs (VA)

medical card to the officer.

            After Weldon handed the medical card to the police

officer, the officer noticed that Weldon was grasping something

in his backpack, and ordered Weldon to take his hand out of the

backpack.    Weldon refused.     A second officer then pulled the bag

from Weldon.    As the officer pulled the bag away, an eight-inch

collapsible baton fell out of the backpack.           Weldon grabbed the

baton and pulled it up to the right side of his head as if to


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brandish it.    The police officers eventually wrested control of

the baton away from Weldon and arrested him.

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

charged Weldon with one count of carrying a deadly weapon in

violation of Hawai#i Revised Statutes (HRS) § 134-51(a).

            The Circuit Court of the First Circuit (circuit court)

granted Weldon’s motion to suppress evidence of the baton.               The

State appealed, and the Intermediate Court of Appeals (ICA)

vacated the circuit court’s order granting Weldon’s motion to

suppress, concluding that the seizure was incident to a valid

weapons search.    Weldon filed an application for writ of

certiorari.

            We reverse the ICA’s judgment on appeal.           On the facts

of this case, the police lacked reasonable suspicion to seize

Weldon while he was lying next to the beach in Waikîkî.

Accordingly, the police violated Weldon’s constitutional rights

by approaching him, asking for identification, and seizing his

backpack.    Evidence from this unconstitutional search and seizure

must be suppressed.




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                               I.   BACKGROUND

A.   Circuit Court Proceedings1

            On November 4, 2013, the State charged Weldon via an

amended complaint with one count of carrying a deadly weapon in

violation of HRS § 134-51(a).2

            On April 21, 2014, Weldon filed a Motion to Suppress

Evidence (Motion to Suppress), and argued that the circuit court

should suppress evidence and statements obtained from the

warrantless search and seizure of Weldon.            He argued that the

police officers violated his constitutional rights under the

United States Constitution and under article I, section 7 of the

Hawai#i Constitution.3      Weldon contended that prior to being

      1
            The State originally filed a complaint in the District Court of
the First Circuit on June 5, 2013. Weldon demanded a jury trial, and the
district court committed his case to circuit court on September 11, 2013.
      2
            HRS § 134-51(a) (2011) provides:

                  Deadly weapons; prohibitions; penalty. (a) Any
            person, not authorized by law, who carries concealed upon
            the person’s self or within any vehicle used or occupied by
            the person or who is found armed with any dirk, dagger,
            blackjack, slug shot, billy, metal knuckles, pistol, or
            other deadly or dangerous weapon shall be guilty of a
            misdemeanor and may be immediately arrested without warrant
            by any sheriff, police officer, or other officer or person.
            Any weapon, above enumerated, upon conviction of the one
            carrying or possessing it under this section, shall be
            summarily destroyed by the chief of police or sheriff.
      3
            Article I, section 7 of the Hawai#i Constitution provides:

            The right of the people to be secure in their persons,
            houses, papers and effects against unreasonable searches,
            seizures and invasions of privacy shall not be violated; and
            no warrants shall issue but upon probable cause, supported
                                                                (continued...)

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detained and questioned by the police officers, Weldon “was not

engaged in any overt violation of any criminal law.”              Weldon

stated that under our case law, “[p]olice may not randomly

‘encounter’ individuals without an objective basis for suspecting

them of misconduct and then place them in a coercive environment

in order to develop reasonable suspicion to justify their

detention.”      Thus, Weldon concluded that “it was only by virtue

of the unlawful conduct of the police officers that the alleged

deadly weapon became visible to the police officers,” and

“[a]ccordingly, all evidence seized subsequent to the detention

and questioning of Mr. Weldon was tainted . . . and must be

suppressed as fruits of the unlawful seizure.”

              In its memorandum in opposition to Weldon’s Motion to

Suppress, the State argued that the police officers “had a

reasonable suspicion that criminal activity was afoot.”

Specifically, the State contended:
              The articulable facts in support of the Officers’ belief
              stop [sic] include, but are not limited to, the observation
              of the alcoholic beverage containers, the charcoal residue
              of an extinguished fire, and discarded cooked meat that were
              in close proximity to the Defendant. If the Defendant had
              the alcoholic beverages and extinguished fire on the
              beach/beach access these would be in violation of the R.O.H.
              40-1.2(a) and H.A.R. 13-13-24(4) as indicated supra.
              Officers also indicated that when they were talking to the
              Defendant he was sitting on the property break wall of 2801


     3
         (...continued)
              by oath or affirmation, and particularly describing the
              place to be searched and the persons or things to be seized
              or the communications sought to be intercepted.

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           [C]oconut Avenue. [The officer] confirmed that the
           Defendant did not live in the condos and could be possibly
           violating H.R.S. 708-815.[4] Officers had a reasonable
           suspicion that criminal activity was afoot and detained the
           Defendant to investigate but did not have probable cause to
           arrest the Defendant.
The circuit court held a hearing on Weldon’s Motion to Suppress

on June 16, 2014.5     Two HPD police officers, Officer Heyworth and

Officer Wilson, testified.

     1.    Officer Heyworth’s Testimony

           Officer Heyworth testified that on June 4, 2013, he was

assigned to patrol the Waikîkî area.          He stated that part of the

patrol area included the area around 2801 Coconut Avenue, which

was “a particular hot spot, that block.”           He testified that when

he arrived at the address around 7:00 a.m., he noticed “discarded

embers from a fire, um, meat, cooked meat strewn everywhere, and,

uh, beer bottles.      [He] also noticed a male about five to six

feet away from them, uh, laying down.”           He identified the male as

Weldon.   Officer Heyworth stated that he approached Weldon

because he “wanted to address, uh, the items, see, you know, if

they were his.     So I just went up to him to talk to him.”             Upon

approaching Weldon, Officer Heyworth noticed that Weldon was

mumbling, slow to respond, and not necessarily cooperative when

     4
            However, a police officer later testified that the beach area
where Weldon was lying down was accessible to the public. The officer did not
check to determine whether there were signs indicating that the concrete slab
or retaining wall where Weldon was lying was private property. He also stated
that no trespass case was created against Weldon.
     5
           The Honorable Lono J. Lee presided.

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he was asked for his name and identification.            Weldon eventually

went into his backpack and provided him with a VA medical card.

By this time, Officer Wilson had also arrived on the scene.

            Officer Heyworth explained that after handing over his

VA medical card, Weldon continued to grasp something inside the

backpack.    While Officer Heyworth could not see what he was

grasping, he ordered Weldon to remove his hand from the backpack.

            When Weldon refused to remove his hand from the

backpack, Officer Heyworth stated that Officer Wilson attempted

to grab the backpack away, and when he succeeded in pulling the

bag away, a collapsible baton fell on the concrete area beside

Weldon.   Officer Heyworth testified that Weldon picked the baton

up “and brought it to the right ear, his right ear, and

brandished it in a manner as if to strike me or Officer Wilson.”

Recognizing the baton as a deadly weapon, Officer Heyworth told

Weldon to drop the baton and that he was under arrest.

            On cross-examination, defense counsel asked Officer

Heyworth why he had visited 2801 Coconut Avenue that morning.

Officer Heyworth responded that there were general complaints

from residents in the area about a high level of burglaries, so

he was “making checks of the area.”         Officer Heyworth clarified

that he was not responding to any specific complaint or call.




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           Defense counsel then showed Officer Heyworth a

photograph of the beach side of 2801 Coconut Avenue and asked him

to indicate where he saw Weldon and where he saw the items that

led him to further investigate Weldon.          Officer Heyworth

responded that Weldon may have been lying down towards the right

side of the photograph, and that the “discarded embers from a

fire” were not in the area depicted by the photograph.              He

testified that there was no “fire pit or barbecue grill” in the

area.   He further stated that at the time that he approached

Weldon, Weldon was not drinking any beer or alcohol, was not

eating any food, and was not using illicit drugs.

           Officer Heyworth testified that he approached Weldon to

“address his welfare after observing those items.”             Defense

counsel asked, “just to clarify, based on the observations of the

beverage containers, the residue of the fire, and the disregarded

meat, those were the - I guess the factors that led you to

believe that there was some type of criminal activity going on?”

Officer Heyworth responded, “I wanted to determine if they were -

they were his.”    When asked whether he had ever questioned Weldon

about whether the items were his, Officer Heyworth responded that

“[t]he first thing I asked was his name I believe.”




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     2.    Officer Wilson’s Testimony

           Officer Wilson testified that when he arrived at 2801

Coconut Avenue, he initially saw Weldon, “several bottles, uh, a

barbecue, and some meat that had been barbecued . . . [and]

several backpacks.”     He stated that the glass bottles were empty,

and “they appeared to be of the alcoholic type beverage and maybe

some soda bottles.”     Officer Wilson testified that when he

arrived on the scene, he initially observed Weldon lying down on

the “concrete pad.”     Officer Wilson stated that “basically we

approached, we asked for ID, tried to identify who this is.”                 He

explained that “we” referred to Officer Heyworth, himself, and a

third officer who arrived shortly after.

           When Weldon failed to comply with Officer Heyworth’s

instruction that he “not go into his bag,” Officer Wilson

testified that he pulled the bag away from Weldon, and he

“immediately recognized in [Weldon’s] right hand a collapsible

baton.”   Officer Wilson testified that Weldon “pulled his right

hand back with the baton.       At that time it extended.”

           On cross-examination, when shown the same photograph of

the area as shown to Officer Heyworth, Officer Wilson indicated

that Weldon had been lying down in the middle of the photograph.

He also stated that the charcoal type grill and the glass bottles




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were on Weldon’s left, and the backpacks on Weldon’s right.6

When asked why he approached Weldon, Officer Wilson replied, “we

were in the area making routine checks identifying people.                Uh,

we could do it – at that time we were doing it, uh, daily.”

Officer Wilson also stated that while Weldon was brandishing the

baton, he was sitting up, and “[h]is legs were still forward flat

on the concrete.”

            On recross-examination, Officer Wilson testified that

while tenants of the apartment building above the concrete wall

could access a locked gate that led into the apartment, “you

can’t, um, stop access to the beach area.”            Officer Wilson stated

that he was not sure whether there were signs on the wall

denoting that the area was private property, or stating “keep off

this wall.”    Officer Wilson further testified that no trespass

case was created against Weldon.

      3.    Circuit Court Order Granting Motion to Suppress

            During closing arguments, the State and defense counsel

disputed whether the officers had reasonable suspicion to believe

that Weldon was engaged in criminal activity.             The State argued

that the officers had individualized suspicion to approach Weldon

to investigate possible criminal activity.            Defense counsel


      6
            This appears to contradict Officer Heyworth’s testimony, in which
he stated that he did not see any physical barbecue grill, but just some
remaining embers from a fire.

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countered that the officers lacked reasonable suspicion to

approach Weldon because “there’s nothing in evidence to show that

Mr. Weldon is connected in time to these, you know, bottles or

grill.”   Defense counsel also stated that when the officers

approached Weldon, they did not inquire whether the items were

his, but first asked for his identification.           At the conclusion

of the hearing, the circuit court orally granted Weldon’s Motion

to Suppress.

           The circuit court entered its written Findings of Fact,

Conclusions of Law and Order Granting Defendant’s Motion to

Suppress Evidence (Order Granting Motion to Suppress) on July 8,

2014.   Therein, the circuit court made the following findings of

fact and conclusions of law:
           1.    Police officers may stop and detain an individual if
                 the officers have reasonable suspicion that the person
                 stopped was engaged in criminal conduct.

           2.    Police officers, in that situation, must be able to
                 point to specific articulable facts which, taken
                 together with rational inferences from those facts,
                 reasonably warrant that intrusion.

           3.    In this case, there was reasonable suspicion for the
                 police officers to approach Defendant and investigate
                 based upon the past complaints of criminal activity in
                 the area and the proximity of bottles, cooked meat,
                 and extinguished fire to Defendant.

           4.    However once detained there was no reasonable
                 suspicion for the police officers to search
                 Defendant’s backpack based on the articulable facts
                 and circumstances known at that time.

           5.    Therefore, Defendant’s Motion to Suppress Evidence is
                 granted.




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Stated differently, while the circuit court determined that the

officers had reasonable suspicion to approach Weldon and inquire

as to the items located around him, the circuit court concluded

that the officers did not have reasonable suspicion to

subsequently search Weldon’s backpack.

B.   ICA Proceedings

            The State filed a notice of appeal.           In its opening

brief, the State argued that the circuit court erred in

suppressing evidence of the baton because “the discovery of the

baton was the result of a valid protective weapons search.”                   The

State disputed the circuit court’s fourth conclusion of law, and

noted that it was reasonable for the officers to conduct a

weapons search once they saw Weldon “grasping something” in his

backpack.    The State cited the United States Supreme Court’s

(Supreme Court) decision in Terry v. Ohio, 392 U.S. 1, 30-31

(1968), in which the Supreme Court stated:
            where nothing in the initial stages of the encounter serves
            to dispel [a police officer’s] reasonable fear for his own
            or others’ safety, he is entitled for the protection of
            himself and others in the area to conduct a carefully
            limited search of the outer clothing of such persons in an
            attempt to discover weapons which might be used to assault
            him. Such a search is a reasonable search under the Fourth
            Amendment, and any weapons seized may properly be introduced
            in evidence against the person from whom they were taken.

            Here, the State argued that Officer Wilson testified

that “[a]t no time were we trying to search [Weldon’s]

belongings,” and noted that Officer Wilson “simply pulled the bag

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away from Weldon and ‘immediately recognized in [Weldon’s] right

hand a collapsible baton.’”        Once Officer Wilson saw the baton,

the State argued that under the totality of the circumstances, he

was justified in taking measures to neutralize the threat of harm

to himself and to others.        (Citing State v. Uddipa, 3 Haw. App.

415, 418, 651 P.2d 507, 510-11 (1982)).           Because the weapons

search was reasonable, the State requested that the ICA vacate

the circuit court’s Order Granting Motion to Suppress.

            In his answering brief, Weldon argued that the circuit

court did not err in granting his Motion to Suppress.               Weldon

contended, however, that the baton was correctly suppressed

because under the totality of the circumstances, the officers had

“no specific and articulable facts indicat[ing] that Weldon had

been or was about to be engaged in criminal activity.”

            Thus, Weldon argued that the circuit court’s third

conclusion of law stating that the police officers had reasonable

suspicion to approach Weldon, was unsupported by the evidence.7

Weldon noted that in State v. Barnes, 58 Haw. 333, 338, 568 P.2d

1207, 1211 (1977), this court stated:
                  To justify an investigative stop, short of an arrest
            based on probable cause, “the police officer must be able to
            point to specific and articulable facts which, taken


      7
            Weldon argued that the ICA could affirm the circuit court’s Order
Granting Motion to Suppress on different grounds than those found by the
circuit court. (Citing Strouss v. Simmons, 66 Haw. 32, 40, 657 P.2d 1004,
1010 (1982)).

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           together with rational inferences from those facts,
           reasonably warrant that intrusion.” [Terry, 392 U.S. at
           21]. The ultimate test in these situations must be whether
           from these facts, measured by an objective standard, a
           [person] of reasonable caution would be warranted in
           believing that criminal activity was afoot and that the
           action taken was appropriate.

Weldon argued that in this case, “[t]he police had no reasonable

suspicion to temporarily detain Weldon because they could point

to no specific and articulable facts that Weldon was involved in

any criminal activity.”      Here, although Officer Heyworth claimed

that Weldon was “five to six feet” from the cooked meat, the

charcoal embers, and the glass bottles, when shown a picture of

the beach and foundational wall, he also stated that the

discarded charcoal was located outside the immediate area around

Weldon.   Weldon therefore argued that the officers’ suspicions

that he was the source of the strewn items were unreasonable.

Weldon also stated that according to the officers’ testimony,

Weldon was lying down, apparently sleeping or resting, not eating

or drinking, and “was not doing anything else illegal or

suspicious.”   Therefore, Weldon concluded that “a [person] of

reasonable caution would [not] be warranted in believing that

Weldon was involved in any criminal activity, so the police’s

intrusion on him was [not] appropriate, and the circuit court

properly suppressed the billy/baton.”

           On April 25, 2018, the ICA entered a memorandum opinion

vacating the circuit court’s Order Granting Motion to Suppress.

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State v. Weldon, No. CAAP-XX-XXXXXXX, 2018 WL 1940952 (App. Apr.

25, 2018) (mem.).     The ICA concluded that (1) the officers had

reasonable suspicion to approach Weldon and temporarily detain

him for questioning, and (2) once the officers saw Weldon grasp

something from his backpack, the officers had a reasonable basis

to infer that Weldon was armed and dangerous, and could seize the

backpack.

            In concluding that the officers had reasonable

suspicion to approach Weldon, the ICA noted that the “empty beer

bottles, strewn cooked meat, and discarded embers from a fire on

the beach . . . were in close proximity to Weldon, who was the

only person in the vicinity.”        Because it is a crime to possess

an open container of intoxicating liquor on the beach, Revised

Ordinances of Honolulu §§ 40-1.2, 10-1.1 (1990), and to knowingly

drop, place, or throw litter on any public or private property,

HRS § 708-829 (Supp. 2006), the ICA concluded that Weldon’s close

proximity to these items “provided the police with a reasonable

suspicion that criminal activity involving Weldon was afoot.”

Thus, the ICA also concluded that the officers could momentarily

detain Weldon.

            In concluding that the officers also had reasonable

suspicion to search Weldon’s backpack, the ICA first noted that

Hawai#i case law allows police officers to conduct protective


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searches for weapons during an investigative detention if the

officers can reasonably infer from the detained person’s specific

conduct and from attendant circumstances that the person is armed

and presently dangerous.       (Citing State v. Ortiz, 67 Haw. 181,

185, 683 P.2d 822, 826 (1984)).         When Officer Heyworth saw Weldon

grasp something in his backpack, and when Weldon refused to

comply with the officers’ demands to remove his hand from the

backpack, the ICA determined that Officer Wilson’s actions in

seizing the backpack were justified as a valid protective search

for weapons.    The ICA thus concluded that the officers’ recovery

of the baton did not violate Weldon’s constitutional rights.

           Accordingly, the ICA vacated the Order Granting Motion

to Suppress and remanded the case for further proceedings.                The

ICA entered its judgment on appeal on May 24, 2018.

D.   Notice of Weldon’s Death

           Weldon timely filed an application for writ of

certiorari on July 25, 2018.        We accepted his application on

August 28, 2018 and scheduled the case for oral argument.

           On November 2, 2018, the Office of the Public Defender

(OPD) notified this court that it believed Weldon had passed away

on April 22, 2018.      Pursuant to Hawai#i Rules of Appellate




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Procedure (HRAP) Rule 43(a),8 OPD requested that it be

substituted as the party-in-interest for Weldon.             We denied OPD’s

Motion for Substitution, and ordered OPD to “make reasonable

efforts to locate an individual or entity to serve as personal

representative for [Weldon].”

            After oral argument was held, OPD informed us that,

despite its efforts, it could not find a proper personal

representative to substitute for Weldon.

                         II.   STANDARD OF REVIEW

A.   Motion to Suppress

            “An appellate court reviews a ruling on a motion to

suppress de novo to determine whether the ruling was ‘right’ or

‘wrong.’”    State v. Tominiko, 126 Hawai#i 68, 75, 266 P.3d 1122,

1129 (2011) (quoting State v. Prendergast, 103 Hawai#i 451, 453,

83 P.3d 714, 716 (2004)).




     8
            HRAP Rule 43(a) (2010) provides in relevant part:

                  (a) Death of a party. If a party dies after the notice
            of appeal is filed, or while the proceeding is otherwise
            pending in a Hawai#i appellate court, that court may
            substitute the personal representative of the deceased party
            as a party on motion filed by the representative or by any
            party. The motion shall be served upon the representative
            in accordance with the provisions of Rule 25. If the
            deceased party has no representative, any party may suggest
            the death on the record, and proceedings shall then be had
            as that court shall direct. . . .

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                              III.   DISCUSSION

           Weldon presents one question on certiorari: “[w]hether

the ICA gravely erred in holding that the Circuit Court erred in

granting Weldon’s Motion to Suppress because the police seized

Weldon without specific and articulable facts supporting

reasonable suspicion to believe he was committing a crime.”

           As an initial matter, we note that it was after we had

accepted Weldon’s application for writ of certiorari that OPD

informed us that Weldon had passed away.           Pursuant to HRAP Rule

43(a), we exercise our discretion to address the important

constitutional issues raised on certiorari.

           We further conclude that because Weldon was seized

without reasonable suspicion that he was engaged in criminal

activity, his seizure was illegal.          Because Weldon’s seizure was

illegal, the evidence obtained from that illegal seizure, i.e.,

the baton, is tainted and inadmissible at trial.             This illegally-

obtained evidence must therefore be suppressed.

A.   HRAP Rule 43(a)

           Weldon passed away during the pendency of the State’s

appeal to the ICA, and this court was notified of his death after

we accepted his application for writ of certiorari.              We later

denied OPD’s motion to substitute itself as Weldon’s personal

representative.


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             If a party dies “while the proceeding is otherwise

pending in a Hawai#i appellate court,” HRAP Rule 43(a) permits,

by motion, the substitution of a personal representative of the

deceased party as a party.          If a deceased party has no

representative, HRAP Rule 43(a) also provides that “any party may

suggest the death on the record, and proceedings shall then be

had as that [appellate] court shall direct.”

             In State v. Makaila, 79 Hawai#i 40, 45, 897 P.2d 967,

972 (1995), we applied HRAP Rule 43(a) and determined that if a

criminal defendant dies pending appeal of a conviction, an

appellate court, in its discretion, may allow for substitution of

a proper party-defendant.          We also stated, absent a motion for

substitution, that an appellate court may (1) dismiss the appeal

as moot, (2) vacate the judgment of conviction and dismiss all

related criminal proceedings, or (3) enter any other order as the

appellate court deems appropriate pursuant to HRAP Rule 43(a).

Id.    We therefore vacated our earlier order dismissing the

deceased criminal defendant’s appeal to allow any party to move

to substitute a proper party-defendant.             Id. at 46, 897 P.2d at

973.

             Here, Weldon was never convicted of the crime for which

he was charged.       Therefore, the specific facts in Makaila differ

from the facts of this case.          Nevertheless, HRAP Rule 43(a),


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which applies to any proceeding pending in a Hawai#i appellate

court, remains applicable.        According to HRAP Rule 43(a), when a

proper party representative is not substituted, we may dismiss an

appeal, vacate the ICA’s judgment on appeal, or enter any other

order we deem appropriate.        See Makaila, 79 Hawai#i at 45, 897

P.2d at 972 (citing HRAP Rule 43(a)).           We therefore exercise our

discretion to address the important constitutional issues raised

on certiorari.     See State v. Burrell, 837 N.W.2d 459, 467 (Minn.

2013) (identifying public policy considerations which support the

continuation of a deceased criminal defendant’s appeal).

B.   The police unlawfully seized Weldon, and therefore the
     evidence from the unlawful seizure must be suppressed.

           Pursuant to article I, section 7 of the Hawai#i

Constitution, the people have a right to be free from

unreasonable searches, seizures, and invasions of privacy.                In

order to determine whether a person can be lawfully seized

without first obtaining a warrant, we analyze the following.

           First, we determine whether the person was “seized”

within the meaning of the United States and Hawai#i

Constitutions.     Second, if the person was seized, we determine

whether the seizure was lawful, i.e., whether the police could

have temporarily detained the individual because “they have a

reasonable suspicion based on specific and articulable facts that



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criminal activity is afoot.”       Tominiko, 126 Hawai#i at 77, 266

P.3d at 1131.    If the seizure was not supported by reasonable

suspicion, the seizure was unlawful, and any evidence obtained as

a result of the initial seizure is inadmissible at trial.

          We conclude here that Weldon was seized without

reasonable suspicion that he was engaged in criminal activity.

Accordingly, the evidence discovered on the basis of that

unlawful seizure must be suppressed.

     1.   When the police approached Weldon and proceeded to
          question him, they seized him within the meaning of
          article I, section 7 of the Hawai#i Constitution.

          As a threshold matter, Weldon was “seized” within the

meaning of article I, section 7 of the Hawai#i Constitution.

This court has stated that:
          A person is seized if, given the totality of the
          circumstances, a reasonable person would have believed that
          he or she was not free to leave. Whether a reasonable
          person would feel free to leave is determined under an
          objective standard that this court reviews de novo. A
          person is seized for purposes of article I, section 7 of the
          Hawai#i Constitution, when a police officer approaches that
          person for the express or implied purpose of investigating
          him or her for possible criminal violations and begins to
          ask for information.

Tominiko, 126 Hawai#i at 77, 266 P.3d at 1131 (citations and

quotations omitted).     We examine whether a person is seized on a

case by case basis, keeping in mind that a person is seized “only

if, in view of all the circumstances surrounding the incident, a

reasonable person would have believed that [the person] was not


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free to leave.”    State v. Quino, 74 Haw. 161, 169, 840 P.2d 358,

362 (1992).

          We have previously held that an informal inquiry with a

person on the street in which there is no compulsion to cooperate

is not a seizure within the meaning of article I, section 7.

State v. Tsukiyama, 56 Haw. 8, 13, 525 P.2d 1099, 1103 (1974).

However, we have also held that when officers deliberately

initiate their encounter with a person for the specific purpose

of investigating a crime, and their questioning is “specifically

designed to elicit responses that would either vindicate or

implicate [the person],” officers have seized the individual

within the meaning of article I, section 7.           Quino, 74 Haw. at

171-72, 840 P.2d at 363-64.       The use of physical force is not

necessary to effect a seizure; rather, the test is whether “a

reasonable person in [the defendant’s] position would not have

believed that [the person] was free to ignore the officer’s

inquiries and walk away.”       Id. at 173, 840 P.2d at 364.

          Here, at 7:00 a.m., Officer Heyworth approached Weldon

in the course of a regular patrol and not through any specific

complaint.    After observing discarded embers from a fire, strewn

cooked meat on the sand, and glass bottles, Officer Heyworth

approached Weldon, who was lying down at the time, to “see, you

know, if [these items] were his.”         Officer Heyworth, in full


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police uniform, initiated a conversation and immediately

requested identification.       By this point, Officer Wilson had also

arrived at the scene and had also approached Weldon.             A third

police officer arrived shortly thereafter.

          Based upon the totality of the circumstances, we

conclude that a reasonable person in Weldon’s position would not

feel free to ignore Officer Heyworth’s inquiries and walk away.

Even if Officer Heyworth never specifically asked Weldon whether

the items found in his vicinity were his, this court has

previously concluded that under certain circumstances, asking for

identification and information can rise to a seizure under

article I, section 7 if an officer approaches that person for the

express or implied purpose of investigating him for possible

criminal violations.     See State v. Kearns, 75 Haw. 558, 568, 867

P.2d 903, 908 (1994).      Here, the officers admitted that they

approached Weldon with the express purpose of investigating him

for possible criminal violations.

          Additionally, when Officer Heyworth asked Weldon to

give his name and to show identification, at least two officers,

and likely three, had surrounded him.          To a reasonable person in

Weldon’s position, this “show of authority” would make it




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difficult for the person to believe that the person was free to

ignore the officer’s inquiries and walk away.9

            Finally, there is nothing in the record to indicate

that Weldon ever consented to the seizure.            Even though Weldon

had eventually given his identification to the officers, this

court has held that “mere acquiescence to questioning, in and of

itself, is insufficient to establish consent to the seizure.”

Kearns, 75 Haw. at 571, 867 P.2d at 909.           Based on the totality

of the circumstances, we conclude that Weldon was seized pursuant

to article I, section 7 of the Hawai#i Constitution.

      2.    Weldon’s seizure was not supported by reasonable
            suspicion that he was engaged in criminal activity.

            Generally, a seizure without a warrant is presumed

invalid unless the State proves that the seizure falls within an

exception to the warrant requirement of article I, section 7 of

the Hawai#i Constitution.       State v. Heapy, 113 Hawai#i 283, 290,

151 P.3d 764, 771 (2007).        One such exception is a temporary

investigative stop where an officer has “reasonable suspicion”

that the person stopped was engaged in criminal conduct.               Kearns,

75 Haw. at 569, 867 P.2d at 908.
                  To justify an investigative stop, short of an arrest
            based on probable cause, the police officer must be able to


      9
            As Justice Stewart once opined, “[e]xamples of circumstances that
might indicate a seizure, even where the person did not attempt to leave,
would be the threatening presence of several officers . . . .” United States
v. Mendenhall, 446 U.S. 544, 554 (1980) (Opinion of Stewart, J.).

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             point to specific and articulable facts which, taken
             together with rational inferences from those facts,
             reasonably warrant that intrusion. The ultimate test in
             these situations must be whether from these facts, measured
             by an objective standard, a [person] of reasonable caution
             would be warranted in believing that criminal activity was
             afoot and that the action taken was appropriate.

Tominiko, 126 Hawai#i at 77-78, 266 P.3d at 1131-32 (emphasis and

quotations omitted) (quoting Barnes, 58 Haw. at 338, 568 P.2d at

1211).     We have additionally stated that officers must have a

“particularized and objective” basis for suspecting that the

person seized has committed or is about to commit a crime.                 Id.

at 78, 266 P.3d at 1132.        In other words, reasonable suspicion

must be based on “a suspicion that the particular individual

being stopped is engaged in wrongdoing.”           State v. Uddipa, 3 Haw.

App. 415, 418, 651 P.2d 507, 510 (1982) (citing United States v.

Cortez, 449 U.S. 411, 417-18 (1981)).

             Weldon argues that the officers here could not have

reasonably suspected that he was engaged in criminal activity.10

He cites this court’s decision in Tominiko as analogous to the

circumstances in his case.



      10
            In response to Weldon’s application, the State contends that
Weldon waived this argument because he failed to challenge the circuit court’s
specific conclusion that the officers had reasonable suspicion “to approach
[Weldon] and investigate.” The State notes that Weldon did not file a cross-
appeal challenging the circuit court’s conclusion.
      However, Weldon specifically argued in his answering brief to the ICA
that the circuit court’s conclusion on this point was erroneous, he explained
in great detail that the officers did not have reasonable suspicion to
approach him in the first place, and he noted that the ICA could affirm the
circuit court’s order on other grounds. Therefore, we reject the State’s
waiver argument.

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            In Tominiko, a police officer was called to address a

large gathering of people seen drinking beer and soda at an

intersection.      126 Hawai#i at 70, 266 P.3d at 1124.          The group

eventually dispersed, and the defendant walked back to his car.

Id.   The officer trailed the defendant and asked to see his

identification, but the defendant mumbled something, kept

walking, got into his car, and slowly began to drive away.                 Id.

at 72, 266 P.3d at 1126.        The defendant drove seven feet before

stopping, which allowed the officer to approach the defendant’s

car window and observe empty beer bottles in the back of the

defendant’s car.      Id.    The defendant was later charged with

operating a vehicle under the influence of an intoxicant.                 Id. at

71, 266 P.3d at 1125.        At trial, the officer testified that he

did not remember seeing the defendant with a beer bottle in his

hand.    Id. at 72, 266 P.3d at 1126.

            We concluded that on those facts, the police officer

did not have reasonable suspicion that the defendant was engaged

in criminal activity.        Id. at 78, 266 P.3d at 1132.         The officer

“admitted that he did not recall seeing [the defendant] drinking

beer or holding a beer bottle in his hand when he approached the

group.    Additionally, [the officer] did not see [the defendant]

fighting or talking loud.”         Id.




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           Just as in Tominiko, the facts of this case demonstrate

that the officers did not have reasonable suspicion that Weldon

was engaged in criminal activity.         The ICA noted that possessing

an open container of intoxicating liquor and littering are

crimes, and concluded that Weldon’s “close proximity to the open

beer bottles, strewn cooked meat, and discarded fire embers on

the beach constituted specific and articulable facts that

provided the police with a reasonable suspicion that criminal

activity involving Weldon was afoot.”          However, nothing in the

police officers’ testimony reasonably ties Weldon to the items

that littered the sand around him.         While Officer Heyworth

testified that the items were about five to six feet away from

Weldon, he also testified that the “discarded embers from a fire”

were not in the immediate area around Weldon.            When Officer

Heyworth approached Weldon, he had been lying down.             Weldon was

not eating or drinking and was not using drugs at the time that

he was approached.     The glass bottles around Weldon were empty.

           Moreover, there is nothing else to infer that Weldon

had at any time used the items in his vicinity, cooked the strewn

meat, or drank from the empty glass bottles.           Officer Heyworth

testified that he did not see any plates or utensils, nor any

evidence of unopened beer bottles of the same variety around

Weldon.   Accordingly, Officer Heyworth could not point to any


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specific, articulable fact indicating that Weldon was or had been

involved in any criminal activity.         See Tominiko, 126 Hawai#i at

78, 266 P.3d at 1132.

          Furthermore, “the mere act of avoiding confrontation

does not create an articulable suspicion [of criminal activity].”

Id. at 79, 266 P.3d at 1133.       In Tominiko, we concluded that the

defendant’s actions in response to the officer asking for his

identification, i.e., “mumbl[ing] something, walk[ing] to his

car, and attempt[ing] to start it,” did not raise a reasonable

suspicion that he had committed a crime.          Id.    Here, even if

Weldon was slow to respond to Officer Heyworth’s request for

identification and “mumbled a lot” before eventually providing

Officer Heyworth with identification, this conduct similarly does

not raise reasonable suspicion that he had committed a crime.

          “What facts are ‘specific’ and ‘articulable’ so as to

justify an investigative stop cannot be explicitly defined.”

Uddipa, 3 Haw. App. at 418, 651 P.2d at 510.            Rather, “the

totality of the circumstances - the whole picture – must be taken

into account.”    Id.   On the record in this case, the totality of

the circumstances indicate that the police officers who stopped

Weldon lacked specific and articulable facts to support a




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reasonable suspicion that he was engaged in criminal activity.11

Without reasonable suspicion, the officers’ seizure of Weldon

violated article I, section 7 of the Hawai#i Constitution.

      3.    The baton was a fruit of an unlawful seizure, and must
            be suppressed.

            We prohibit the use of evidence at trial that comes to

light as a result of the exploitation of a previous illegal act

of the police.     Tominiko, 126 Hawai#i at 81, 266 P.3d at 1135.

In determining whether evidence is tainted by such an illegal

act, this court has followed the standard laid out in the United

States Supreme Court’s decision in Wong Sun v. United States, 371

U.S. 471 (1963): “[a]dmissibility is determined by ascertaining

whether the evidence objected to as being the ‘fruit’ was

discovered or became known by the exploitation of the prior

illegality or by other means sufficiently distinguished as to

purge the later evidence of the initial taint.”             Tominiko, 126

Hawai#i at 81, 266 P.3d at 1135 (emphasis omitted) (quoting State

v. Fukusaku, 85 Hawai#i 462, 475, 946 P.2d 32, 45 (1997)).               In

other words, we ask, “[d]isregarding the prior illegality, would

the police nevertheless have discovered the evidence?”               State v.

Trinque, 140 Hawai#i 269, 281, 400 P.3d 470, 482 (2017).




      11
            The circuit court therefore erred when it concluded the opposite
in its July 8, 2014 Order Granting Motion to Suppress.

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            Here, Weldon’s initial seizure was unconstitutional

because the police officers did not have reasonable suspicion

that Weldon was engaged in criminal activity at the time that he

was approached.     See Section III.B.2 supra.         Therefore, Officer

Wilson’s subsequent seizure of Weldon’s backpack stemmed from

Weldon’s initial illegal seizure.12         Put differently, the police

would not have discovered the baton if not for Weldon’s initial

illegal seizure.     Tominiko, 126 Hawai#i at 81, 266 P.3d at 1135.

            “Evidence obtained after the initial stop is fruit of

the poisonous tree because it was discovered by exploiting [the

officers’] prior illegal seizure.”          Id.   We conclude that the

officers’ discovery of the baton is a fruit of the poisonous

tree, and therefore cannot be used at trial.            The circuit court

correctly suppressed that evidence.

                              IV.   CONCLUSION

            We conclude that both the circuit court and the ICA

erred in determining that the police officers had reasonable

suspicion to approach Weldon.         The officers could not point to

any specific facts indicating that the items found on the beach

in Weldon’s general vicinity were his.            Thus, they did not have




      12
            Therefore, we need not decide whether the officers’ subsequent
seizure of Weldon’s backpack would otherwise be legal pursuant to a valid
weapons search.

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reasonable suspicion to believe that Weldon was involved in

criminal activity.

          Weldon was unconstitutionally seized, and the evidence

obtained after the initial seizure must be suppressed because it

was discovered by exploiting that seizure.           While the circuit

court erred in concluding that the officers had reasonable

suspicion to approach Weldon, the circuit court nevertheless

correctly suppressed evidence of the baton.

          We therefore reverse the ICA’s May 24, 2018 judgment on

appeal and affirm the circuit court’s July 8, 2014 Findings of

Fact, Conclusions of Law and Order Granting Defendant’s Motion to

Suppress Evidence.     Accordingly, for the reasons stated, the case

is dismissed with prejudice.

Alan J.T. Komagome                        /s/ Mark E. Recktenwald
Jon N. Ikenaga, and
Phyllis J. Hironaka,                      /s/ Paula A. Nakayama
for petitioner/defendant-
appellee                                  /s/ Sabrina S. McKenna

Brian R. Vincent                          /s/ Richard W. Pollack
for respondent/plaintiff-
appellant                                 /s/ Michael D. Wilson




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