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NO. CAAP-19-0000020

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I,

Plaintiff-Appellant,

v.

SAMUEL J. CLOWE and MICHELE UILANI ILAE,

Defendants-Appellees

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT

(CR. NO. 3CPC-18-0000387)

SUMMARY DISPOSITION ORDER

(By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)

Plaintiff-Appellant State of Hawai#i (State) appeals

from the December 18, 2018 "Findings of Fact, Conclusions of Law,

and Order Granting Motion to Suppress Evidence" (Suppression

Order), entered by the Circuit Court of the Third Circuit

(circuit court).1 Defendant-Appellee Samuel Clowe (Clowe) was

charged with one count each of: Attempted Promoting a Dangerous

Drug in the First Degree, in violation of Hawaii Revised Statutes

(HRS) §§ 705-500 (2014) and 712-1241(1)(b)(ii) (Supp. 2017);

Promoting a Dangerous Drug in the Second Degree, in violation of

HRS § 712-1242(1)(b) (Supp. 2017); Promoting a Harmful Drug in

the Fourth Degree, in violation of HRS § 712-1246.5(1) (2014);

and Prohibited Acts Related to Drug Paraphernalia, in violation

1 The Honorable Robert D.S. Kim presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000020

30-OCT-2020

01:01 PM

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of HRS § 329-43.5(a) (Supp. 2017). Clowe was alleged to have

committed the offenses on or about March 28, 2018, along with a

co-defendant, Michelle Ilae (Ilae). Clowe filed a pre-trial

motion to suppress evidence obtained by a search warrant executed

at Ilae's residence. The circuit court granted Clowe's motion to

suppress.

On appeal, the State argues that the circuit court

erred in granting the motion to suppress. Specifically, the

State challenges the circuit court's findings of fact (FOFs) C

and H, and conclusions of law (COLs) 10, 12, 14-18 of the

Suppression Order.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve this appeal as follows.

Officer John McCarron (Officer McCarron) prepared an

affidavit in support of the search warrant, stating that he

received information from fellow Officer Nicholas McDaniel

(Officer McDaniel) regarding a male and female distributing

methamphetamine in the District of Kona, Hawai#i. Officer

McCarron was informed by Officer McDaniel that a cooperating

defendant, Francis Kekona (Kekona), provided information about

the distribution of methamphetamine and his own involvement in

the use of methamphetamine. Officer McCarron received

information from Officer McDaniel that on March 14, 2018, Officer

McDaniel contacted Kekona while Kekona was leaving the subject

residential unit. Kekona was subsequently arrested on drug and

gun charges. The affidavit states that Kekona provided the

following information to Officer McDaniel: (1) on March 14, 2018,

Kekona observed, while in the presence of Ilae and Clowe,

approximately half a pound of methamphetamine at the subject

residential unit; (2) Kekona was told that Ilae and Clowe both

went to Oahu two days before his contact with them on March 14,

2018, to pick up one pound of methamphetamine and returned to

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Kona with the methamphetamine; and (3) Kekona has visited Clowe

at the subject residential unit multiple times. The affidavit

further states that Officer Marco Segobia (Officer Segobia) spoke

with the community manager of the residential community, Tammy

Ichokwan (Ichokwan). Ichokwan did not know Kekona but recognized

the moped that police contacted Kekona with on March 14, 2018,

stated that it is frequently parked in front of the building, and

that the moped rider frequents the subject residential unit. The

affidavit also states that Officer McDaniel corroborated

information received from Kekona regarding at least three

different areas of narcotics distribution in the Kailua-Kona

area.

At the hearing on the motion to suppress, the parties

stipulated to the admission of State's Exhibit 1, which was a

copy of the subject affidavit to the search warrant, and the

court judicially noticed Kekona's prior convictions, as requested

by Clowe. No other exhibits were admitted and no witnesses were

called.

The State challenges the following FOFs of the

Suppression Order:

C. The search warrant at issue was issued by the

Court based on information provided to the police by a

confidential informant.

. . . .

H. The [confidential informant] in this case has an

extensive history of criminality. See Exhibit 2. The

[confidential informant] was convicted of two (2) felony

counts of Theft in the Second Degree in 1991, and therefore

the [confidential informant]'s reliability, given his

convictions for dishonesty, is suspect.

The State also challenges the following COLs of the

Suppression Order:

10. In Franks v. Delaware, 438 U.S. 154 (1978), the

Supreme Court developed a two-prong test clarifying what a

criminal defendant must show when challenging the veracity

of statements made in an affidavit supporting a search

warrant. If both prongs are met, the search warrant must be

voided and the fruits of the search excluded. Franks, 438

U.S. at 155-56. . . .

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. . . .

12. As a further rule, where the probable cause

determination made by a judge before the issuance of a

search warrant must rely on and take into account

information provided to the Court by a tipster and/or a

confidential informant ("CI"), the burden rests with the

government to demonstrate to the Court that the CI used in

this case has a history of providing the government with

reliable tips in the past that led to arrests of persons and

the charging of these persons with crimes.

. . . .

14. Officer [John McCarron] did not [explain in his

affidavit to the court: (1) how he concluded Kekona was

reliable and (2) how he believed Kekona was trustworthy].

See Exhibit 1. Nothing in [McCarron]'s affidavit discusses

or describes what tip Kekona provided [McCarron] in the past

that led to an arrest and to the charging of persons with

crimes. The reliability prong of the Aguillar/Spinelli

test, the first prong of the test, cannot be satisfied by

the state because [McCarron] excludes or omits completely

from his affidavit any discussions of past tips provided by

Kekona to the police that turned out to be true and that led

to someone being arrested and charged with a crime.

15. [McCarron] excludes or omits completely from this

affidavit any discussion about the credibility of his CI,

Kekona. The issue of the CI's credibility is always

relevant to the Court's probable cause determination when

the Court makes this kind of determination for the purpose

of deciding whether or not to issue a search warrant.

16. The CI, Kekona, has a long and extensive history

of criminality, including convictions involving crimes of

dishonesty. In 1991, Kekona was convicted of two (2) felony

counts of Theft in the Second Degree. As Kekona was

convicted of crimes involving dishonesty - and a felony

conviction for a crime of dishonesty is always relevant when

assessing how much weight to give the unsworn statement of a

CI - this information was material and relevant to the

Court's probable cause determination, should have been

provided to the court by [O]fficer [McCarron], was not

provided to the Court by [McCarron], and was therefore

unavailable to the court when it made its probable cause

determination in this case. Had this information been

properly disclosed by the State to the judge at the time of

the judge's probable cause determination, there is a strong

probability the judge might have concluded the CI is not

credible because CI has two (2) felony convictions for

crimes involving dishonesty.

17. The failure of [McCarron] to disclose this highly

relevant information to the magistrate judge before the

judge signed off on the warrant prevented the judge from

making a fully informed decision about the propriety of

issuing the search warrant at issue in this case. This

error or omission on the part of [McCarron] cannot be said

to be harmless beyond a doubt because the credibility of the

CI is always relevant to and material to the Court's

probable cause determination.

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18. [McCarron] was required to make this disclosure

to the issuing court - which he did not. For this reason

and for the other reasons cited to above, the evidence

seized in this case is suppressed.

In sum, the circuit court characterized Kekona as a

confidential informant and concluded that the search warrant

failed to establish the veracity of the information stated in the

affidavit to the search warrant, specifically Kekona's

credibility. The State argues that the circuit court erroneously

evaluated Kekona's credibility under the standard applicable to

confidential informants, which Kekona was not. In particular,

the State argues that the circuit court erred in granting the

motion to suppress based on its conclusions that the State did

not meet its burden of demonstrating that Kekona had a history of

providing the government with reliable tips in the past and that

the State also failed to disclose Kekona's criminal history to

the judge who approved the search warrant.

Given the full disclosure of Kekona's identity in the

affidavit, Kekona was not a confidential informant. The

affidavit specifically identified Kekona by his full name and

referred to him as a "cooperating defendant" who was arrested on

drug and gun charges after leaving the residential unit that is

the subject of the search warrant at issue.2 FOF C was therefore

clearly erroneous. Clowe also concedes this point in his

answering brief.

Although Kekona was not a confidential informant, the

information he provided served as the basis for the affidavit for

the search warrant and constituted hearsay. We must therefore

determine whether this hearsay information was sufficiently

reliable to support probable cause for the issuance of the search

warrant.

In evaluating the validity of search warrants based on

2 We acknowledge that the affidavit also seems to refer to Kekona as

the "CI" in one instance. As we have stated, however, Kekona was clearly not a

confidential informant, or CI, as he was fully identified.

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hearsay information provided by an informant, the Hawai#i Supreme

Court uses the two-part test announced in Aguilar v. Texas, 378

U.S. 108 (1964), and expounded upon in Spinelli v. United States,

393 U.S. 410 (1969). Carlisle ex. rel. State v. Ten Thousand

Four Hundred Forty-Seven Dollars in U.S. Currency ($10,447.00),

104 Hawai#i 323, 330, 89 P.3d 823, 830 (2004).3 Under this test,

the affidavit must set forth: (1) some of the underlying

circumstances from which the informant drew the conclusion

regarding criminal activity; and (2) some of the reasons which

led the affiant to believe that the informant was credible or the

informant's information was reliable. State v. Decano, 60 Haw.

205, 210, 588 P.2d 909, 913-14 (1978).

Here, the affidavit states that Kekona saw

approximately half a pound of methamphetamine at the subject

residential unit while he was in the presence of Clowe and Ilae.

Because the affidavit relates that Kekona provided this

information based on his personal observations, the first prong

of the Aguilar test was satisfied. See State v. Davenport, 55

Haw. 90, 95-96, 516 P.2d 65, 69 (1973) (holding that the first

prong of the Aguilar test was met where the informant's

conclusion that illegal activity was being conducted at the

specified location was based upon the informant's personal

observation).

As for Kekona's credibility or the reliability of the

information he provided, Kekona's identification in the affidavit

is significant. "[A]n identified informer would generally be

entitled to greater credibility than a 'faceless' informer would

3 The Hawai#i Supreme Court noted:

We continue to use the two-part Aguilar test, although

we recognize that the United States Supreme Court has

abandoned the Aguilar test in favor of a totality of the

circumstances test. Illinois v. Gates, 462 U.S. 213, 238-39,

103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also United States

v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004) (following

Illinois v. Gates).

Carlisle, 104 Hawai#i at 330 n.9, 89 P.3d at 830 n.9.

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be," State v. Joao, 55 Haw. 601, 604, 525 P.2d 580, 583 (1974),

because an identified informer can be held accountable for his or

her statements. See State v. Detroy, 102 Hawai#i 13, 19, 72 P.3d

485, 491 (2003) ("[I]f the telephone call is truly anonymous, the

informant has not placed his credibility at risk and can lie with

impunity." (quoting Florida v. J.L., 529 U.S. 266 (2000)

(Kennedy, J., concurring))). The affidavit stated that Kekona

admitted his own involvement in and familiarity with the use of

methamphetamine. Kekona also disclosed that he observed

methamphetamine at a residence which he frequently visited and

which he was leaving before he himself was arrested. Cf. United

States v. Harris, 403 U.S. 573, 584 (1971) (plurality opinion)

("Concededly admissions of crime do not always lend credibility

to contemporaneous or later accusations of another. But here the

informant's admission that over a long period and currently he

had been buying illicit liquor on certain premises, itself and

without more, implicated that property and furnished probable

cause to search."). Such admissions that are against one's penal

interest are relevant indicia of the informant's credibility.

Id. at 583-84 ("Admissions of crime, like admissions against

proprietary interests, carry their own indicia of

credibility-sufficient at least to support a finding of probable

cause to search."); State v. Yaw, 58 Haw. 485, 490, 572 P.2d 856,

860 (1977) (concluding that admissions against penal interest

have been considered to be a relevant indicia of an informant's

credibility). The affidavit also states that Officer Segobia

conducted a follow-up investigation based on Kekona's information

and confirmed that: Ilae lives at the subject residential unit,

Clowe was her boyfriend, and that Clowe has been a guest at

Ilae's unit. Officer Segobia also confirmed that Kekona's moped

has been seen frequently parked in front of the subject

residential unit. The affidavit further states that Officer

McDaniel corroborated information that Kekona provided regarding

three different areas of narcotics distribution in the

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Kailua-Kona area. See Detroy, 102 Hawai#i at 20, 72 P.3d at 492

(stating that corroboration by a law enforcement officer of

various details in an informer's report could properly support a

conclusion that the informer was truthful). Combined with the

statements that Kekona personally observed the methamphetamine at

a residence which he frequently visited and from which he was

leaving when arrested himself, and that Kekona was familiar with

Clowe and Ilae, the affidavit therefore contained sufficient

information to support Officer McCarron's conclusion that Kekona

was credible or that the information Kekona provided was reliable

and the second prong of the Aguilar test was satisfied. COL 15,

which contained a finding that McCarron failed to include any

discussion about Kekona's credibility was clearly erroneous.

In concluding that Kekona's reliability as an informant

was "suspect," the circuit court relied upon a finding that he

had an "extensive history of criminality" involving "convictions

for dishonesty," which the State argues is an embellishment. In

making this finding, the circuit court judicially noticed

Kekona's convictions for two felony counts of Theft in the Second

Degree. In the context of admissible impeachment evidence under

Hawaii Rules of Evidence (HRE) Rule 609(a), the supreme court has

held:

[A] theft offense is not, per se, a "crime of dishonesty"

. . . . Rather, to be admissible impeachment evidence

pursuant to HRE Rule 609(a), the defendant must have

committed the prior theft offense under circumstances that,

by their very nature, render his or her prior conviction of

the offense relevant to and probative of his or her veracity

as a witness.

State v. Pacheco, 96 Hawai#i 83, 100, 26 P.3d 572, 589 (2001)

(citations omitted). We find this holding to be applicable here

where Clowe asserted, and the circuit court adopted the

reasoning, that Kekona's criminal history indicated a lack of

credibility on Kekona's part. The record contains no details of

the circumstances under which Kekona committed theft in the

second degree, let alone any details relating to the convictions

that would support a finding that Kekona was unreliable. There

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being no evidence in the record to support the circuit court's

finding that Kekona's reliability was suspect because he was

convicted of crimes of dishonesty, that portion of FOF H was

clearly erroneous.

The circuit court also concluded that the affidavit's

omission of Kekona's criminal history prevented the issuing judge

from making a fully informed decision regarding the reliability

of the information provided and determining probable cause.

In Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57

L.Ed.2d 667 (1978), the Supreme Court held that a defendant

seeking an evidentiary hearing to determine whether a

facially valid affidavit contains false statements must make

a substantial preliminary showing that: (1) the affidavit

contains intentionally or recklessly false statements and

(2) the affidavit cannot support a finding of probable cause

without the allegedly false information. If a defendant

prevails at a Franks evidentiary hearing, evidence obtained

on the basis of a search warrant issued on an affidavit

containing material omissions or misrepresentations must be

excluded. In United States v. Stanert, 762 F.2d 775 (9th

Cir. 1985), amended, reh'g denied, 769 F.2d 1410 (9th Cir.

1985), [the Ninth Circuit Court of Appeals] extended Franks

to omissions of material facts and concluded that "the

Fourth Amendment mandates that a defendant be permitted to

challenge a warrant affidavit valid on its face when it

contains deliberate or reckless omissions of facts that tend

to mislead." Id. at 781.

United States v. DeLeon, 979 F.2d 761, 763 (9th Cir. 1992). On

appeal, the State argues that the circuit court's statement of

the law established in Franks failed to include that, in order to

be entitled to a Franks evidentiary hearing, the defendant must

first make a substantial preliminary showing of the two prongs.

Despite this omission, we conclude that COL 10 was otherwise a

correct statement of law.

To the extent that the State also seems to vaguely

assert that Clowe failed to make the required substantial

preliminary showing, the State seems to argue that the circuit

court should not have considered Kekona's criminal history as it

was outside the scope of the four corners of the affidavit.

However, the State also expressly states that it does not claim

any error in the court's judicial noticing of Kekona's criminal

history.

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Regardless of whether the circuit court properly

considered Kekona's criminal history in ruling on the motion to

suppress, we conclude that the circuit court erred in COLs 16-18

when it concluded that Officer McCarron was required to disclose

information regarding Kekona's criminal history and that the

omission of such information rendered the affidavit insufficient

to establish probable cause. Neither the circuit court nor Clowe

cited any authority that stands for the proposition that a

disclosure of an informant's criminal history is required of the

State, particularly where the informant has been identified and

there are other indicia of the informant's credibility or the

information's reliability. Further, as we previously stated,

there is no evidence in the record pertaining to Kekona's

previous convictions that supports a finding that such

information would have had a bearing on the probable cause

determination (i.e., that the circumstances of his past criminal

activity were relevant to and probative of his penchant for

honesty). The circuit court thus erroneously relied on the

affidavit's omission of Kekona's prior convictions as a basis for

granting the motion to suppress.

In COL 12, the circuit court correctly stated that the

State carries the burden of demonstrating that an informant has a

history of providing the government with reliable tips in the

past that led to arrests of persons and the charging of these

persons with crimes. However, the circuit court erroneously

concluded in COL 14 that the State's failure to meet this burden

rendered Kekona's information unreliable. See State v. Sherlock,

70 Haw. 271, 274, 768 P.2d 1290, 1292 (1989) ("While the history

of prior dealings between an informant and the police can be an

important element in establishing the reliability of the

informant, the absence of such a history does not of itself prove

the informant unreliable." (quoting United States v. Wong, 470

F.2d 129, 131 (9th Cir. 1972)). The circuit court erroneously

relied on these conclusions as a basis for granting the motion to

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suppress.

The affidavit to the search warrant satisfied the

two-part Aguilar test and there was probable cause for the

issuance of the search warrant. The circuit court therefore

erred in granting the motion to suppress.

Based on the foregoing, we vacate the December 18, 2018

"Findings of Fact, Conclusions of Law, and Order Granting Motion

to Suppress Evidence," entered by the Circuit Court of the Third

Circuit and remand this matter for further proceedings.

DATED: Honolulu, Hawai#i, October 30, 2020.

On the briefs:

Kauanoe A. Jackson,

Deputy Prosecuting Attorney,

County of Hawai#i,

for Plaintiff-Appellant.

John Knoebber,

for Defendant-Appellee.

/s/ Katherine G. Leonard

Presiding Judge

/s/ Derrick H. M. Chan

Associate Judge

/s/ Keith K. Hiraoka

Associate Judge

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