  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    23-JUN-2020
                                                    07:54 AM

                             NO. CAAP-XX-XXXXXXX


                   IN THE INTERMEDIATE COURT OF APPEALS

                           OF THE STATE OF HAWAI#I


                   STATE OF HAWAI#I, Plaintiff-Appellee,
                                     v.
                 SEAN KEKAULIKE OGATA, Defendant-Appellant


         APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                           HONOLULU DIVISION
                       (Case No. 1DTA-17-02774)


                        SUMMARY DISPOSITION ORDER
          (By:    Ginoza, Chief Judge, Chan and Hiraoka, JJ.)

            Defendant-Appellant Sean Kekaulike Ogata (Ogata) was
convicted of Operating a Vehicle Under the Influence of an
Intoxicant (OVUII) in violation of Hawaii Revised Statutes (HRS)
§ 291E-61(a)(1).1  Ogata appeals from the "Notice of Entry of
Judgment and/or Order and Plea/Judgment" (Judgment),2 filed on
July 6, 2018, and the "Amended Notice of Entry of Judgment and/or
Order and Plea/Judgment" (Amended Judgment),3 filed on April 24,
2019, in the District Court of the First Circuit, Honolulu


     1
            HRS § 291E-61(a) (Supp. 2016) provides, in relevant part:
            (a)   A person commits the offense of operating a vehicle
            under the influence of an intoxicant if the person operates
            or assumes actual physical control of a vehicle:
                    (1)   While under the influence of alcohol in an
                          amount sufficient to impair the person's normal
                          mental faculties or ability to care for the
                          person and guard against casualty[.]
     2
            The Honorable Melanie Mito May signed the Judgment.
     3
            The Honorable Sherri-Ann L. Iha signed the Amended Judgment.
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Division, State of Hawai#i. Ogata contends the district court
erred by (1) partially denying his motion to suppress and (2)
denying his motion to compel discovery. We affirm.
          The only witnesses called during Ogata's trial were
Honolulu Police Department (HPD) officers Taylor Patten, Jonathan
Roberts Kauka, and John Funtanilla. Officer Patten testified
that at about 6:00 a.m. on Saturday, July 15, 2017,4 he was on
patrol when he received a call about a traffic hazard at the
intersection of Kalaniana#ole Highway and #Āinakoa Avenue.
Officer Patten observed a vehicle stopped on the #Āinakoa Avenue
side of the intersection. He parked behind the vehicle,
activated his blue lights, and walked to the driver-side door.
The engine was running, the vehicle was in drive, and the windows
were rolled up. Ogata was in the driver's seat, leaning back,
with his foot on the brake. He appeared to be either sleeping or
unconscious.
           Officer Patten knocked on the window and announced,
"[p]olice officer." Ogata did not respond. Officer Patten
raised his voice and repeated the announcement over 10 times.
Officer Patten testified: "[A]t times [Ogata] would kind of come
to, come to it, look at me, and then lean back and either go back
to sleep or lose consciousness in some way."
           At some point Ogata took his foot off the brake and his
vehicle started rolling slowly downhill in the makai direction,
through the intersection of #Āinakoa Avenue and Kalaniana#ole
Highway. HPD officer Siave Seti was also at the scene. As
Ogata's vehicle was moving forward, Officers Patten and Seti told
Ogata to "stop the vehicle, put your foot on the brake, put the
car in [p]ark[.]" Ogata's vehicle had rolled through all three
#Ewa-bound lanes of Kalaniana#ole Highway before Officer Seti used
his baton to break the window and the police officers were able
to stop the vehicle. After Ogata's vehicle was stopped, Ogata
was extracted from his vehicle and placed in handcuffs. Officer




      4
            We take judicial notice, pursuant to Rule 201 of the Hawaii Rules
of Evidence, that July 15, 2017, was a Saturday.

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Patten noticed a strong odor of alcohol and observed that Ogata
had a hard time standing.
          Officer Roberts Kauka, who was also at the scene by
then, testified that Ogata was very disoriented, had watery eyes
and slurred speech, gave off a strong smell of alcohol, and could
not stay on his feet. A third witness, Officer Funtanilla,
testified that he observed Ogata at the scene with "red,
bloodshot and watery eyes[]" and that Ogata had the odor of
alcohol on his breath.
          Officer Patten testified that Ogata was not able to
respond to questions or verbal commands. He chose not to conduct
the standardized field sobriety tests because Ogata "[could]
barely stand" and was having "a hard time answering just basic
questions." An ambulance was called because Ogata and Officer
Seti had received minor cuts from shards of glass when Officer
Seti broke the window of Ogata's vehicle. Officer Patten stood
by as Ogata was treated in the ambulance, because Ogata was under
arrest. Officer Patten heard Ogata tell the paramedic that he
had been drinking.
          Ogata made an oral motion to suppress after the State
rested its case. Ogata argued there was no reasonable suspicion
to take Ogata out of his vehicle and handcuff him, which placed
him in custody. Ogata requested to suppress everything that
happened after Officer Patten approached Ogata's vehicle while it
was stopped. Ogata also claimed there was no probable cause to
arrest him after he was extracted from his vehicle because
sleeping at an intersection and then subsequently rolling through
the intersection was not a criminal offense. Thus, Ogata
requested everything that happened after he was extracted from
his vehicle be suppressed as fruit of the poisonous tree.
          The district court granted Ogata's motion to suppress
in part, suppressing all statements Ogata made after he was
handcuffed. The motion was denied in all other respects. Ogata
did not present any witnesses and declined to testify. After
closing arguments, the district court found the witnesses who
testified credible, and found Ogata guilty of OVUII. This appeal
followed.

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          (1)   The district court did not err by partially deny-
ing Ogata's motion to suppress.         We review a trial court's ruling
on a motion to suppress de novo, to determine whether the ruling
was right or wrong. State v. Spillner, 116 Hawai#i 351, 357, 173
P.3d 498, 504 (2007). The movant has the burden of establishing,
by a preponderance of the evidence, that the statements or items
sought to be excluded were unlawfully secured and that the right
to be free from unreasonable searches or seizures was violated
under the Fourth Amendment to the United States Constitution and
article I, section 7 of the Hawai#i Constitution. Id.

                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 criminal activity is afoot. 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.

State v. Weldon, 144 Hawai#i 522, 531, 445 P.3d 103, 112 (2019)
(cleaned up).
          Ogata contends that everything that happened after
Officer Patten first approached Ogata's vehicle should have been
suppressed, because sleeping at an intersection and then rolling
through that intersection are not criminal offenses. We
disagree. Under the circumstances of this case, Officer Patten
had reasonable suspicion to stop Ogata. After Officer Patten
announced that he was a police officer, Ogata woke up, looked at
Officer Patten, and then fell back asleep without responding.
Officer Patten was entitled to further investigate the situation,
whether he thought Ogata was asleep, injured, intoxicated, or
drugged. State v. Keller, 403 So.2d 693, 696 (La. 1981) (a
police officer seeing a person slumped over a steering wheel in a
vehicle with the engine running, at 3:00 a.m., has reasonable
suspicion to make an investigatory stop short of an arrest).
          When Ogata's vehicle rolled through the intersection
and crossed Kalaniana#ole Highway, Officers Patten and Seti were
authorized to take steps "reasonably necessary to protect their
personal safety and to maintain the status quo during the course

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of the stop." United States v. Hensley, 469 U.S. 221, 235
(1985). "Once police have the reasonable suspicion needed to
justify an investigatory stop, they may use the forcible means
necessary to effectuate that stop, provided their actions are
reasonable under the circumstances." United States v. Weaver,
8 F.3d 1240, 1244 (7th Cir. 1993). In this case, Ogata's
inability to control his vehicle placed the police officers and
the public at risk of harm, in violation of HRS § 291-2.5
          Officer Patten had probable cause to arrest Ogata for
OVUII after Ogata was removed from his vehicle.

          Probable cause exists when the facts and circumstances
          within one's knowledge and of which one has reasonably
          trustworthy information are sufficient in themselves
          to warrant a person of reasonable caution to believe
          that an offense has been committed. This requires
          more than a mere suspicion but less than a certainty.

State v. Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005)
(emphasis in original) (citations omitted). While Ogata was
being removed from his vehicle, Officer Patten smelled a strong
odor of alcohol and observed that Ogata had a hard time standing
and could not respond to questions or verbal commands given to
him. Officers Roberts Kauka and Funtanilla corroborated that
Ogata was very disoriented; had red, bloodshot, and watery eyes;
slurred speech; gave off a strong odor of alcohol; and could not
stay on his feet. Officer Patten witnessed Ogata operating (or
failing to control) his vehicle under this condition. There was
probable cause to arrest Ogata for OVUII.
          There is no indication that Ogata was advised of his
Miranda rights after he was handcuffed, and the district court
granted Ogata's motion to suppress his post-arrest statement to
the paramedic that he had been drinking, and all other evidence



     5
          HRS § 291-2 (2007) provides:
                §291-2 Reckless driving of vehicle or riding of
          animals; penalty. Whoever operates any vehicle or rides any
          animal recklessly in disregard of the safety of persons or
          property is guilty of reckless driving of vehicle or
          reckless riding of an animal, as appropriate, and shall be
          fined not more than $1,000 or imprisoned not more than
          thirty days, or both.

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after he was handcuffed. Even without that evidence, there was
sufficient evidence for the district court to find Ogata guilty
of OVUII.
          (2) The district court did not err by denying Ogata's
motion to compel discovery.     Ogata contends the State failed to
conduct a search for Brady material concerning misconduct of the
officers involved in his case. In State v. Peseti, 101 Hawai#i
172, 65 P.3d 119 (2003), the supreme court adopted the analysis
of Pennsylvania v. Ritchie, 480 U.S. 39 (1987):

          In the typical case where a defendant makes only a
          general request for exculpatory material under Brady
          v. Maryland, 373 U.S. 83, [83 S.Ct. 1194, 10 L.Ed.2d
          215] (1963), it is the [prosecution] that decides
          which information must be disclosed. Unless defense
          counsel becomes aware that other exculpatory evidence
          was withheld and brings it to the court's attention,
          the prosecutor's decision on disclosure is final.
          Defense counsel has no constitutional right to conduct
          [their] own search of the State's files to argue
          relevance. See Weatherford v. Bursey, 429 U.S. 545,
          559, [97 S.Ct. 837, 51 L.Ed.2d 30] (1977) ("There is
          no general constitutional right to discovery in a
          criminal case, and Brady did not create one[.]").

Peseti, 101 Hawai#i at 185, 65 P.3d at 132 (citing Ritchie, 480
U.S. at 59-60) (alterations in original). Ogata did not argue to
the district court that specific exculpatory or impeachment
evidence existed, as required by Peseti. The district court did
not err by denying Ogata's motion to compel discovery.
          Based upon the foregoing, the district court's "Notice
of Entry of Judgment and/or Order and Plea/Judgment," filed on
July 6, 2018, and "Amended Notice of Entry of Judgment and/or
Order and Plea/Judgment," filed on April 24, 2019, are affirmed.
          DATED: Honolulu, Hawai#i, June 23, 2020.

On the briefs:

Donn Fudo,                              /s/ Lisa M. Ginoza
for Plaintiff-Appellee.                 Chief Judge

Alen M. Kaneshiro,                      /s/ Derrick H.M. Chan
for Defendant-Appellant.                Associate Judge

                                        /s/ Keith K. Hiraoka
                                        Associate Judge



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