No. SCWC-12-0000133, Thursday, December 1, 2016, 10 a.m.

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee, vs. JASON CURTIS and MELISSA HALL, Petitioners/Defendants-Appellants, and GENEVIEVE WALKER, Respondent/Defendant-Appellee.

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

Supreme Court Courtroom
Aliʻiolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioners:

Daniel G. Hempey

Attorney for Respondent:

Tracy Murakami, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 06/01/16.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[  Listen to the entire audio recording in mp3 format  ]

Brief Description:

Petitioners/Defendants-Appellants Jason Curtis and Melissa Hall applied for writ of certiorari from the Intermediate Court of Appeals’ February 23, 2016 Judgment affirming the Circuit Court of the Fifth Circuit’s February 8, 2012.

A FedEx employee discovered a parcel containing approximately eight pounds of marijuana. The parcel, which was addressed to a Kaua`i residence, was turned over to the Kauaʻi Police Department (KPD). A KPD officer applied for an anticipatory search warrant. In his supporting affidavit, the officer explained that the KPD intended to make a controlled delivery of the FedEx parcel to the Kaua`i residence and requested a warrant authorizing a search of the residence after the parcel was delivered. A judge issued the search warrant, but the warrant itself did not contain a triggering condition and instead authorized the execution of the warrant “forthwith.” After the controlled delivery was completed, the KPD executed the search warrant. Petitioners were present in the residence, and KPD officers found the contents of the opened parcel, including the marijuana.

The defendants moved to suppress the evidence obtained as the result of the search, arguing that the warrant was invalid because it did not include the triggering condition. The circuit court denied Petitioners’ suppression motion. The court relied on United States v. Grubbs, 547 U.S. 90 (2006), in which the U.S. Supreme Court held that the Fourth Amendment does not require the triggering condition to be on the face of an anticipatory search warrant. Petitioners entered conditional no contest pleas to the charge of first-degree promoting a detrimental drug.

The ICA affirmed the circuit court, concluding that the warrant was valid because the triggering condition was not required under Grubbs and because the warrant satisfied the following two conditions: (1) the officer’s affidavit specifically identified the triggering condition for the execution of the warrant; and (2) the triggering condition was satisfied before the warrant was executed.

Petitioners’ application for writ of certiorari presents three questions:

A. Does article I, section 7 of the Hawai`i Constitution afford greater protections for anticipatory search warrants than the 4th Amendment of the U.S. Constitution?

B. Did the ICA gravely err in holding the right to privacy in the Hawai`i Constitution does not require the triggering event to be included in an anticipatory search warrant?

C. Did the ICA gravely err in giving effect to a search warrant that was based on an objectively false finding by the issuing court that the alleged contraband was, at the time of the issuance, located on the subject premises?