Hawaii police can’t barge into homes unannounced or stop passengers disembarking at airports on a hunch that they may have drugs.

Nor can they elicit statements from suspects by making small talk with them or use police dogs to sniff out drugs at most traffic stops.

These are just some examples of how the Hawaii Supreme Court in the last five decades has incrementally placed restrictions on what police can do while investigating crimes, obtaining evidence and interviewing suspects.

That’s in almost direct contrast to the direction the U.S. Supreme Court has taken over the years in siding with police and expanding their powers.

Part of the reason for the difference is the state Supreme Court’s interpretation of provisions in the Hawaii Constitution that protect citizens’ privacy against unreasonable government intrusions — a provision Hawaii’s justices have used to expand the rights of the criminally accused.

Civil Beat examined dozens of Hawaii Supreme Court rulings related to policing and spoke to attorneys involved in those cases and legal experts who studied those decisions to get an idea of how the high court has shaped criminal procedure and law enforcement practices in the islands.

The court’s direction in these criminal cases toward strong privacy protections even for criminal defendants began in the 1960s in a case called State v. Texeira, according to Honolulu attorney Brook Hart.

In that case, police discovered marijuana on a man in Palolo after arresting him. The defendant unsuccessfully tried to suppress that evidence at trial and appealed to the high court.

While the state Supreme Court sided with police in that case and reasoned that seizing the marijuana was allowable under the U.S. Constitution, the court also ruled that federal decisions should not prevent the Hawaii Supreme Court from extending greater protections to citizens under the state constitution.

Since then, Hawaii’s justices have used that authority to say that police shouldn’t rifle through residents’ trash cans to find evidence or do helicopter flyovers of neighborhoods in the hopes of spotting marijuana plants – as has happened in some instances of unlawful searches.

That attitude of protecting privacy interests has also informed how the high court views policing in other areas, Hart said.

In some instances, the court has tried to shape police behavior by pointing out the wrong ways to collect evidence and illustrating the right ways to do so.

“It’s the nature of our civil society in Hawaii,” Hart said. “That attitude of doing right by your fellow man, by not allowing police to overreach and get judicial permission to violate the right to privacy … these are values enshrined in our culture as well as our law.”

Many of the cases in which the Hawaii Supreme Court broke new legal ground came from the 1960s, ’70s and ’80s.

The court in the last 10 years has set new legal precedent relating to police less often than in decades past, according Maui Deputy Public Defender Ben Lowenthal.

As Lowenthal sees it, the court in the last 10 years has instead reinvigorated those older cases and applied their standards in a new light.

“We should be building on precedent at this point,” Lowenthal said. “It’s almost the natural maturity of a Supreme Court.”

‘No Knock’ Policies

Forced entry into homes by police gained national attention after the police killing of Breonna Taylor in 2020 during a botched “no knock” raid in Louisville, Kentucky. There’s been a national push to ban the practice, and a bill introduced this past legislative session would have outlawed such raids in Hawaii.

While the measure failed to pass the Legislature, the Hawaii Supreme Court has set strict standards for when police are allowed to break open a door or a gate without first announcing who they are and why they are there.

In 1997, the Hawaii Supreme Court ruled that police must verbally demand entry. Saying “Police! Search warrant!” is not enough to imply that they want to enter an abode.

That ruling also set a standard that police must allow residents a reasonable amount of time to answer the door. In the 1997 case, police only gave the resident 10 seconds before breaking in.

The Hawaii Supreme Court weighed in on the issue most recently in 2020 in a case that revisited the reasonable time rule.

In the 2020 decision, the court ruled that 25 seconds was not enough time for Dawn Naeole to answer the door at 6:30 in the morning.

Police were executing a search warrant of Naeole’s home, where they found 2 pounds of meth after breaking in, KHON2 reported at the time. The court found that police were wrong to forcibly enter her home.

In the morning, “most people would be expected to be asleep, just waking up, or otherwise indisposed by the customary activities of the early morning such as showering, getting dressed or eating breakfast,” Associate Justice Michael Wilson wrote in the opinion.

It’s not reasonable to expect someone to be alert and responsive at that hour, Wilson wrote. Evidence of drugs seized during the raid was suppressed and the case was sent back to the Circuit Court for further proceedings.

The court has been reluctant to push for a “bright line rule” to define what a reasonable amount of time is. In another case, the court said that 15 seconds was enough time for someone to answer an office door in a commercial establishment.

“What might be reasonable in one situation won’t be reasonable in another,” Hart said, adding that police officers can still gain entry if exigent circumstances exist. Like if they hear the sounds of guns, or explosions or sounds indicating that evidence is being destroyed.

The bill proposing a ban on “no knock” warrants would have required police to wait a minimum of 30 seconds before breaking a door down. That provision was opposed by the state public defender’s office, the attorney general and county police as being too stringent.

Police are also allowed to use a “ruse” to gain entry to a residence as long as they don’t use force, as part of a ruling that came out in the 1990s.

One night in 1992, Honolulu police officers tracked a man suspected of violating his parole to what was then called the Plaza Hotel near the airport. 

Officers enlisted the help of a hotel security guard, who knocked on the man’s door and said that he was there to check the air conditioning. A woman opened the door, and after she did, two officers charged in and arrested the suspect.

In another case in the late 1990s, police used two female officers working undercover to get a man to open his door. Another officer prevented him from closing the door, which amounted to an unlawful entry, former Chief Justice Ron Moon wrote in the court’s opinion. Instead, police should have announced themselves first.

Digging Through Trash

Experts point to rulings made by former Chief Justice William S. Richardson’s court as key in establishing what police can and can’t do.

Those requirements differ from what the U.S. Supreme Court has allowed because Hawaii wants police to have stronger grounds or evidence before they stop someone or question them.

“When Richardson became the chief justice, the Hawaii Supreme Court, in the area of criminal procedure, really started to stake out its own independence,” Lowenthal, the Maui public defender, said.

In one case in 1974, the Hawaii Supreme Court established that it can provide citizens broader protections than what is afforded by the federal Constitution.

The court ruled that police can’t perform overly broad searches of individuals even if they were lawfully arrested, which is counter to what the U.S. Supreme Court ruled in past cases.

In the case, a couple robbed the Palolo McDonald’s and was later arrested. A female suspect, who was believed to be armed at the time of the robbery, was searched at a police station where an officer removed a folded piece of tissue paper from her bra. Inside the tissue paper, officers found drugs.

The high court said that police opening the folded tissue paper was improper because it went beyond what was necessary for police to find any weapons. If the state high court adhered to federal standards, the search likely would have been allowed.

In another example of the Hawaii Supreme Court providing Hawaii citizens greater protections than federal courts, the high court determined that police should not search through trash cans for evidence because it could violate a person’s reasonable expectation of privacy.

Other states and the U.S. Supreme Court have said that no one has an expectation of privacy in garbage because it’s been abandoned.

In the Hawaii ruling, State v. Tanaka, the court examined three cases of people on Maui allegedly involved in illegal gambling and sports betting who were convicted based on evidence officers found in the trash. In two of those instances, police accessed dumpsters on private property, and in a third, they waited until a homeowner wheeled out his trash can in front of his garage.

The high court remanded all three cases, and said that people have an expectation that police won’t rummage through their garbage.

“If we were to hold otherwise, police could search everyone’s trash bags on their property without any reason and thereby learn of their activities, associations and beliefs,” the court wrote in its opinion.

‘Walk And Talk’

Police nationwide can briefly stop people for questioning if they have reasonable suspicion of a crime.

But police questioning in Hawaii works differently.

In a 1992 ruling that tried to tamp down an anti-drug trafficking program the Honolulu Police Department operated at the airport, the high court said that police need to have a clear set of facts that can tie an individual to a possible crime before they begin asking questions related to those kinds of crimes.

In those drug interdiction programs, colloquially referred to as the “walk and talk,” plainclothes officers would randomly approach airline passengers disembarking airplanes that came from cities known to be drug sources. The officers would identify themselves, ask for identification and if the passenger had narcotics. Police would then ask to inspect the passenger’s luggage and to pat them down.

An HPD annual report from 1989 called the interdiction program the “first line of defense against all drugs entering and leaving the state.”

In 1990, Ferdinand Quino was the subject of a “walk and talk” encounter after police saw a bulge under his shirt. During questioning at the airport, Quino ran from police, dropping bags of drugs in potted plants as he tried to escape.

He was later convicted of promotion of a dangerous drug in the first degree, and appealed the conviction to the state Supreme Court.

The Hawaii court ruled that the “walk and talk” program violated an individual’s right against unreasonable searches and seizures.

“We cannot allow the police to randomly ‘encounter’ individuals without any 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,” former Associate Justice Robert Klein wrote in the court’s opinion. “This investigative technique is based on the proposition that an otherwise innocent person, who comes under police scrutiny for no good reason, is not innocent unless he or she convinces the police that he or she is. Such a procedure is anathema to our constitutional freedoms.”

Klein said in an interview that the state court’s ruling made it difficult for police to charge drug traffickers caught through an interdiction program with violations of state laws. But law enforcement could still pursue charges under federal laws.

He said the ruling should prevent officers from trying to use “walk and talk” tactics anywhere, even outside airports. The court wanted police in the state to more rigorously think about and justify why they are stopping someone, Klein said, and not just get someone to go along with their questioning.

“It’s a practice that deserves scrutiny, and police should be able to tell you why they are stopping you,” Klein said.

Hawaii courts can suppress any evidence obtained by police if the detaining of an individual is considered illegal under the reasoning the court adopted in the Quino case.

That’s what happened in a 2019 Hawaii Supreme Court decision.

One morning in 2013, Honolulu officers woke James Weldon, who was sleeping near a Waikiki beach condominium, surrounded by empty beer bottles and cooked meat.

They asked him for his ID, and he provided officers with a Veterans Affairs card. According to officers, Weldon refused to let go of something in his backpack. When an officer yanked the backpack away, Weldon appeared to be holding a retractable baton.

He was arrested and charged with one count of carrying a deadly weapon. But the First Circuit Court suppressed the baton from being used as evidence because officers didn’t have a reason to ask what was in his backpack.

The state appealed the case, and the Intermediate Court of Appeals sided with prosecutors. Weldon’s defense asked the state Supreme Court to sort out the issue, although Weldon died in 2018 while waiting for the decision.

Associate Justice Paula Nakayama wrote in the court’s opinion that the officers had no reason to approach Weldon in the first place. They had no evidence he drank the beer. They couldn’t prove he cooked or ate the meat.

She opened the opinion by quoting the section of the Hawaii constitution that protects against unreasonable searches and seizures.

“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,” Nakayama, a former deputy prosecutor, wrote.

‘I Shot The Haole’

Cases involving Miranda rights, named after the U.S. Supreme Court case that established the rule, have also figured heavily in Hawaii Supreme Court decisions over the years.

The Miranda warning is a series of statements made by police informing suspects of their right to remain silent, that anything they say can be used against them in court, they have a right to counsel, and if they can’t afford an attorney one can be appointed.

In several cases in the 1980s, the state Supreme Court determined that an officer should know whether any questions they might ask a suspect before reading those rights could lead to an incriminating response.

While that doctrine comes from a decision the U.S. Supreme Court reached in a Rhode Island case, Hawaii justices in recent years have used it to curtail police attempts to build rapport with a suspect to elicit a statement.

In a 2012 decision, the state court put an end to officers offering to get a suspect’s telling of events before they have been informed of their rights.

In 2009, Pulumata‘ala Eli was convicted of attempted manslaughter for striking his infant daughter and throwing her into the backseat of a van. The child suffered permanent brain damage, according to the court records.

During questioning, a detective asked Eli if he wanted to give a statement as a “chance to give me his side of the story.”

The detective then handed Eli a form explaining his Miranda rights.

But the Hawaii Supreme Court said the process the detective followed was not proper, and remanded Eli’s case for a new trial.

“The police practice of inviting an arrestee to make a statement and to give his or her ‘side of the story’ or similar entreaties in a ‘pre-interview’ before Miranda warnings are given, violates the defendant’s right against self incrimination,” then-Associate Justice Simeon Acoba wrote for the court.

In a 2016 ruling, the court would not allow a statement to be used at trial because the officer in the case should have known her questions could lead to an incriminating response.

On Halloween night in 2011, Honolulu police arrested Gregory Kazanas for allegedly breaking a car window and punching the driver.

Honolulu Officer Christy-Lynn Avilla took Kazanas to The Queen’s Medical Center for an injured hand. On the way there, she told him he was under arrest, but never told him of his right to remain silent.

While at the hospital, and in an attempt to calm Kazanas down, Avilla took him to a side room and asked him how his Halloween was going.

“If people didn’t upset me, I wouldn’t have to punch them,” Kazanas told the officer.

A majority of the court said Avilla should have known that Kazanas would say something incriminating after being asked how his night went, according to the court’s opinion.

That was different from a case in the 1980s. In that case, the court said a suspect’s spontaneous statement could be used at trial.

In 1981, police brought Eldrid Ikaika into the Hilo police station for questioning over a fatal shooting two years earlier. Police believed Ikaika was a witness to the murder. He was read his Miranda rights, and indicated that he wanted an attorney.

Police Lt. Richard Bartolome manned a desk in the processing room and just so happened to know Ikaika, but not why he was at the police station.

“What’s happening?” Bartalome asked Ikaika. “Must be heavy stuff for two detectives to bring you down here?”

“Bartalome, I cannot lie to you,” Ikaika said. “You’ve done a lot for me and you have been too nice to me. I shot the haole.”

That statement was used against Ikaika at trial, and he appealed to the high court.

The court determined that Bartalome was not interrogating Ikaika while he was in the police station. The two knew each other from prior incidents, and Bartalome did not know about Ikaika’s involvement with the murder case.

“At most, Bartolome could have expected that the defendant would respond to his pleasantry by informing him of the reasons for the defendant’s being booked and the case he was involved in,” former Chief Justice Herman Lum wrote. “The defendant’s confession was of the nature of an unsolicited, spontaneous statement made in the absence of police questioning.”

In that case, the court ruled that Ikaika’s statement could be used as evidence.