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Electronically Filed Supreme Court SCWC-XX-XXXXXXX 09-FEB-2021 09:56 AM Dkt. 11 OP IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ---o0o--- STATE OF HAWAIʻI, Respondent/Plaintiff-Appellant, vs JOSHUA LEE, Petitioner/Defendant-Appellee. SCWC-XX-XXXXXXX CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-XX-XXXXXXX; CR. NO. 1PC151001959 FEBRUARY 9, 2021 RECKTENWALD, C.J., NAKAYAMA AND McKENNA, JJ., AND WILSON J., DISSENTING1 OPINION OF THE COURT BY NAKAYAMA, J. Petitioner/Defendant-Appellee Joshua Lee (Lee) appeals the judgment of the Intermediate Court of Appeals (ICA) vacating the Circuit Court of the First Circuit’s2 (circuit court) Order 1 Associate Justice Richard W. Pollack, who was a member of the court when the oral argument was held, retired from the bench on June 30, 2020. 2 The Honorable Rom A. Trader presided. ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER*** granting Lee’s motion to suppress evidence obtained in a search of Lee’s bedroom. On certiorari, Lee raises a single point of error and argues that the ICA erred in applying an emergency aid exception, which Lee contends is inconsistent with article I, section 7 of the Hawaiʻi Constitution. Even if the police officers unlawfully searched Lee’s bedroom, however, the circuit court erred in suppressing all evidence obtained by the State. The evidence did not constitute suppressible “fruit of the poisonous tree.” The State did not gain any benefit from the police officers’ entry into Lee’s bedroom. Moreover, Lee’s actions following the officers’ entry into Lee’s bedroom severed any causal link between the officers’ purportedly unlawful entry and the evidence recovered. Therefore, the ICA did not err in vacating the Order entered by the circuit court on October 13, 2016, and we affirm the ICA’s Judgment on Appeal on different grounds. I. Background A. Factual Background On October 26, 2015, Honolulu Police Department (HPD) dispatched Corporal Craig3 Takahashi (Corporal Takahashi), 3 The record identifies Corporal Takahashi as both “Kurt Takahashi” and “Craig Takahashi.” This court will use the given name Corporal Takahashi provided in his own testimony.

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Officer Sommer4 Kahao (Officer Kahao), and Sergeant Michael Cobb (Sergeant Cobb) (collectively, the officers) to respond to a “suicidal male call” at a home in ʻAiea. The dispatcher informed the officers that Lee had locked himself in his bedroom, where he kept samurai swords, and was threatening suicide. After the officers entered the home with Lee’s family’s consent, the officers attempted to persuade Lee to open the door so that they could visually confirm that Lee was unharmed, as required by HPD training. Officer Kahao spoke with Lee first, using phrases like “Joshua, this is Officer Kahao, Could you please open the door?” Instead of opening the door, Lee responded that he was okay and that the officers should leave. After Officer Kahao spoke with Lee for approximately ten minutes, Sergeant Cobb took over speaking with Lee. The circuit court found that “Sergeant Cobb was more demanding” and told Lee that he “needed to grow up” and “to be a man.” When Lee asked if the officers had a warrant, Sergeant Cobb responded, “We don’t need a warrant, dumbass.”5 Despite Lee’s requests that the officers leave, the officers were required to ensure that Lee was neither harmed nor 4 The record identifies Officer Kahao as both “Sommer Kahao” and “Summer Kahao.” This court will use the spelling utilized in the indictment. 5 Sergeant Cobb testified that using aggressive language in response to suicide calls is permitted by HPD training. This court expresses no opinion on the propriety of Sergeant Cobb’s methods.

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at imminent risk of injuring himself. Sergeant Cobb therefore picked the lock on the door so that the officers could at least see Lee. However, Sergeant Cobb could not open the door because it was being obstructed. Once the door opened, however, the situation rapidly changed. Lee opened the door approximately four to six inches. From the hallway, the officers saw Lee holding a sword handle in his right hand. Based on the officers’ positioning, Sergeant Cobb could only see the sword handle. However, Officer Kahao and Corporal Takahashi both saw that the sword was made of wood. Officer Kahao instructed Lee to drop the sword, but Lee did not immediately comply. Concerned for the officers’ safety, Sergeant Cobb pushed open the door and entered the room, simultaneously pushing Lee away from the officers. Once Sergeant Cobb was inside the room, Lee swung the sword at Sergeant Cobb, but missed. Sergeant Cobb attempted to calm Lee down, but Lee maintained an aggressive stance. Sergeant Cobb tried to grab Lee’s arm. However, Lee flipped Sergeant Cobb onto Sergeant Cobb’s back. Lee then started kneeing Sergeant Cobb in the head. From the time Lee opened the door to the time Lee flipped Sergeant Cobb over, mere seconds had passed. After seeing Sergeant Cobb suddenly flip over, Officer Kahao attempted to grab Lee from behind. However, Lee threw ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

Officer Kahao onto a couch in the room. Officer Kahao and Corporal Takahashi ultimately subdued Lee using pepper spray. A grand jury indicted Lee with Terroristic Threatening in the First Degree,6 Assault Against a Law Enforcement Officer in the First Degree,7 and Resisting Arrest.8 6 Hawaiʻi Revised Statutes (HRS) § 707-716(1) (2013) provides in relevant part Terroristic threatening in the first degree. (1) A person commits the offense of terroristic threatening in the first degree if the person commits terroristic threatening: . . . (c) Against a public servant arising out of the performance of the public servant’s official duties. . . . . . . (e) With the use of a dangerous instrument or a simulated firearm. . . . 7 HRS § 707-712.5(1)(a) (2003) provides Assault against a law enforcement officer in the first degree. (1) A person commits the offense of assault against a law enforcement officer in the first degree if the person: (a) Intentionally or knowingly causes bodily injury to a law enforcement officer who is engaged in the performance of duty[.] 8 HRS § 710-1026(1)(a) (2001) provides Resisting arrest. (1) A person commits the offense of resisting arrest if the person intentionally prevents a law enforcement officer acting under color of the law enforcement officer’s official authority from effecting an arrest by: (a) Using or threatening to use physical force against the law enforcement officer or another[.]

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B. Circuit Court Proceedings Lee moved the circuit court to suppress all evidence gathered from Lee’s bedroom, all statements made to the officers after they entered Lee’s room, and “all actions initiated by illegal observations made by HPD Officers.” Lee asserted that he possessed a reasonable expectation of privacy in his bedroom and that any evidence of his actions was obtained from a warrantless search. The circuit court granted Lee’s motion. In particular, the circuit court determined that Lee possessed a reasonable expectation of privacy in his bedroom, that Sergeant Cobb coerced Lee into opening his bedroom door, and that “all statements, evidence, observations and actions that were observed or obtained” after entry into Lee’s bedroom should be suppressed. C. ICA Proceedings The State appealed to the ICA, arguing that the circuit court erred in granting Lee’s motion to suppress because (1) the exigent circumstances exception applied, (2) the federal emergency aid exception applied, and (3) alternatively, if the officers unlawfully entered Lee’s room, Lee’s actions were not protected as they constituted a new crime. The ICA agreed with the State’s claim that an emergency aid exception applied. Notably, the ICA determined ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

that a warrantless search occurred when Lee opened his bedroom door. Nevertheless, the ICA held that the search was reasonable because an emergency aid exception justified the warrantless search, and the circuit court therefore erred in granting Lee’s motion to suppress. II. Standard of Review A. Motion to Suppress “[W]e review questions of constitutional law under the ‘right/wrong’ standard.” State v. Jenkins, 93 Hawaiʻi 87, 100, 997 P.2d 13, 26 (2000) (citing State v. Toyomura, 80 Hawaiʻi 8, 15, 904 P.2d 893, 900 (1995)). Accordingly, “[w]e review the circuit court’s ruling on a motion to suppress de novo to determine whether the ruling was ‘right’ or ‘wrong.’” State v. Kauhi, 86 Hawaiʻi 195, 197, 948 P.2d 1036, 1038 (1997) (citing State v. Navas, 81 Hawaiʻi 113, 123, 913 P.2d 39, 49 (1996)). III. Discussion On certiorari, Lee argues that the ICA erred in vacating the circuit court’s order granting Lee’s motion to suppress evidence. Specifically, Lee contends that “the State . . . failed to establish exigent circumstances to justify the warrantless search.” Lee adds that the ICA improperly relied upon the federal emergency aid exception because it “is inconsistent with the enhanced protections afforded under Article I, Section 7” of the Hawaiʻi Constitution.

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We accepted certiorari in this case to reinforce our precedent regarding the exclusionary rule and the fruit of the poisonous tree doctrine. Assuming that the officers’ entry into Lee’s bedroom was unlawful, the State bore the burden of showing that the evidence gathered was not tainted by their unlawful entry. The State satisfied this burden. The officers did not receive any benefit from entering Lee’s bedroom. Additionally, Lee’s decision to assault the officers constituted an intervening circumstance which dissipated the causal link between the officers’ entry and the evidence gathered. Because the evidence at issue did not constitute fruit of the poisonous tree regardless of the legality of the officers’ entry, we do not address the issue of whether the emergency aid exception justified the officers’ entry. A. The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine. The Hawaiʻi exclusionary rule serves the dual purposes “of deterring governmental officials from circumventing the protections afforded by the Hawaiʻi Constitution” and of “protect[ing] the privacy rights of our citizens.” State v. Lopez, 78 Hawaiʻi 433, 446, 896 P.2d 889, 902 (1995) (citing State v. Furuyama, 64 Haw. 109, 122, 637 P.2d 1095, 1104 (1981)). Relatedly, “the ‘fruit of the poisonous tree’ doctrine ‘prohibits the use of evidence at trial which comes to light as ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

a result of the exploitation of a previous illegal act of the police.’” State v. Fukusaku, 85 Hawaiʻi 462, 475, 946 P.2d 32, 45 (1997). B. The circuit court erred in granting Lee’s motion to suppress because there was no fruit of the poisonous tree. Under the federal constitution, in order to prevent evidence from being suppressed as “fruit of the poisonous tree,” the prosecution must “show that its evidence is untainted” by the government’s purportedly unlawful act. Id. The State may achieve this goal either by showing that the police did not exploit the illegal activity to gather evidence, id., or by demonstrating that there is no causal link between the illegal activity and the evidence gathered, Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 417 (1963). We have adopted a similar formulation under the state constitution: “[T]he ‘fruit of the poisonous tree’ doctrine ‘prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.’” State v. Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d 32, 45 (1997) (quoting State v. Medeiros, 4 Haw. App. 248, 251 n.4, 665 P.2d 181, 184 n.4 (1983)). “Under the fruit of the poisonous tree doctrine, [a]dmissibility is determined by ascertaining whether the evidence objected to as being ‘fruit’ was discovered or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint.” State v. Poaipuni, 98 Hawai‘i 387, 392–93, 49 P.3d 353, 358–59 (2002) (alteration in original) (quoting Fukusaku, 85 Hawai‘i at 475, 946 P.2d at 45). State v. Trinque, 140 Hawaiʻi 269, 281, 400 P.3d 470, 482 (2017). Here, both exceptions to the “fruit of the poisonous tree” doctrine apply.

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