by Dale Chappell

The Supreme Court of Hawai’i held on June 9, 2020, that a dog sniff search based on reasons unrelated to the original purpose of a proper traffic stop was an unconstitutional search and vacated the judgment affirming a drug conviction.

When Cheri Numazawa called 911 to report her purse was stolen by Larry Ikimaka, Kauai Police (“KPD”) stopped Ikimaka’s truck, and he admitted he had the purse. He said he would give it back to her, and she didn’t want to press charges. Neither was formally arrested, and Numazawa left after KPD refused to return her purse, claiming the truck and everything in it was “evidence.” Because Ikimaka stuck around at the scene, KPD officers read him his right to remain silent, which he elected to do, even though he wasn’t under arrest.

A dog sniff hours later alerted to drugs in the truck, and KPD used this to obtain a search warrant for the truck and its contents. KPD found drugs and paraphernalia in the truck, and in the purse they found more drugs and money. Both Numazawa and Ikimaka were then arrested on various drug charges. They went to trial, and KPD officers testified that they requested a dog sniff of the truck because both Ikimaka and Numazawa were well known as drug users. The prosecutor also got a KPD officer on the stand to testify that Ikimaka invoked his right to remain silent and further used an officer’s testimony to prove, based on that officer’s experience with drug cases, Ikimaka’s intent to possess the drugs, an element of the offense. Ikimaka was convicted, but Numazawa was acquitted.

On appeal, the Intermediate Court of Appeals affirmed, ruling that Ikimaka had no constitutional right to the “airspace” around his truck under the Fourth Amendment and that the officers’ testimonies were not a problem. The Hawai’i Supreme Court granted certiorari and found problems with all three issues.

Under the Fourth Amendment and Article I, Section 7 of the Hawai’i Constitution, a citizen has the right to be free from “unreasonable searches.” A vehicle stop constitutes a “search” that must be “reasonably related in scope” to the purpose of the stop, the Court reiterated.

“Ikimaka was stopped because he had allegedly stolen Numazawa’s purse, and the ensuing dog sniff for drugs was unrelated to that reason,” the Court stated. An investigation “must be supported by independent reasonable suspicion to be constitutional,” it explained.

Here, the original purpose of the stop was about a stolen purse, not drugs. Only later did KPD suspect drugs. This was not a valid reason for the dog sniff, the Court concluded, and therefore, the drug evidence had to be suppressed under the “fruit of the poisonous tree” doctrine, the Court ruled, finding plain error.

As for Ikimaka’s remaining silent being disclosed to the jury, “a prosecutor may not imply guilt from a defendant’s exercise of the right to remain silent,” the Court reiterated. At trial, the prosecutor elicited testimony from a KPD officer that Ikimaka refused to answer questions, invoking his right to remain silent. The prosecutor did this three times in rapid succession, which emphasized the point to the jury and “could have implied Ikimaka’s guilt” to the jury, the Court noted. The Court further warned that a prosecutor doing this could amount to prosecutorial misconduct but didn’t reach that conclusion here because the dog sniff was enough to vacate Ikimaka’s conviction.

Finally, the Court found error in a KPD officer testifying that Ikimaka’s attempts to cut off further investigation by offering to return the purse and take an arrest for that offense proved his intent to possess the drugs in the truck. The prosecutor asked a KPD officer on the stand, “As a police officer, would you say that Larry Ikimaka had intent to possess drugs, had knowledge of the drugs, if he stated ‘Just arrest me and don’t take my truck?’” The officer responded, “Yes.”

Such testimony, the Court said, “expressed a legal conclusion” by the officer. The statute requires that the State to prove that Ikimaka had “knowingly” possessed the drugs. The officer’s testimony “told the jury what result to reach” and was “imbued with an aura of expertise,” the Court concluded.

Accordingly, the Hawai’i Supreme Court vacated the decision affirming Ikimaka’s conviction and remanded to the trial court. See: State v. Ikimaka, 465 P.3d 654 (Haw. 2020).

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