No. SCWC-30692, Wednesday, August 29, 2012, 9 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellant, vs. MARCO RODRIGUES, Petitioner/Defendant-Appellee.

(Promoting a Dangerous Drug in the Third Degree)

Attorney(s) for Petitioner/Defendant-Appellee:

John M. Tonaki, Public Defender, and James S. Tabe, Deputy Public Defender

Attorney(s) for Respondent/Plaintiff-Appellant:

Shaylene Iseri-Carvalho, Prosecuting Attorney, and Samuel Jajich, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Order assigning Circuit Court Judge Fa`auuga To`oto`o due to a vacancy, filed 06/14/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 07/12/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ, and Circuit Court Judge Fa`auuga To`oto`o due to a vacancy

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner/Defendant-Appellee Marco Rodrigues (Petitioner) was charged with Promoting a Dangerous Drug in the Third Degree, Hawai`i Revised Statutes § 712-1243. A police officer discovered methamphetamine when he searched Petitioner after Petitioner had been arrested and handcuffed. Petitioner moved to suppress the methamphetamine on the ground that the warrantless search was not justified as a search incident to arrest. The circuit court granted Petitioner’s motion. In the first appeal by Respondent State of Hawai`i, the Intermediate Court of Appeals (ICA) held the search was not justified as a search incident to arrest but remanded for consideration of whether the methamphetamine would have been inevitably discovered during an inventory search of Petitioner before he was placed in a cell. On remand, the court again suppressed the methamphetamine, concluding Respondent did not present clear and convincing evidence that the drug would have been inevitably discovered. Respondent appealed a second time.

In his Application, Petitioner asks whether the ICA gravely erred in the second appeal in (1) failing to disregard Respondent’s points of error that failed to identify where in the record the error was objected to, and (2) holding Respondent met its burden of proving the methamphetamine would have been inevitably discovered.