The Constitution
of the
State of Hawaii

Note:

For proposed constitutional amendment to this article adding a new section on sexual assault crimes against minors, see SB 2246, L 2006, pg. 1268.

Law Journals and Reviews:

The Protection of Individual Rights Under Hawai`i's Constitution. 14 UH L. Rev. 311.

Case Notes:

See also notes to U.S. Const. Amend. 14.

HRS §746-6, making presence in barricaded place a crime, was invalid as it denied the freedom of movement and freedom of association guaranteed hereunder. 52 H. 604, 483 P.2d 997.

HRS §286-81(1)(A), requiring motorcycle safety helmets, is not a mere self-protective legislation and is valid. 55 H. 138, 516 P.2d 709.

Traffic statutes, §§286-25, 286-102, 291-11.6, and 431:10C-104(b), did not violate defendant’s freedom of movement. 77 H. 222 (App.), 883 P.2d 644.

A chapter 586 protective order does not unconstitutionally curtail a person's freedom of movement. 85 H. 197 (App.), 940 P.2d 404.

As §711-1102's limit on freedom of association and movement is only within the immediate vicinity of the disorderly conduct and there is no "unlimited and indiscriminately sweeping infringement upon the freedom of movement and association", §711-1102 does not violate this section. 101 H. 153 (App.), 64 P.3d 282.

Mentioned: 51 H. 516, 465 P.2d 573; 53 H. 327, 493 P.2d 306.

Law Journals and Reviews:

Hawaii's Equal Rights Amendment: Its Impact On Athletic Opportunities and Competition For Women. 2 UH L. Rev. 97.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai`i Supreme Court. 14 UH L. Rev. 189.

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447.

Case Notes:

Requirement that a woman visitor to an all-male prison wear a brassiere does not infringe upon this section. 59 H. 346, 581 P.2d 1164.

Classification based on unique physical characteristics of men or women is not invalid. 62 H. 120, 612 P.2d 526.

Attorney General Opinions:

Granting permission to student religious group to use university facilities on same basis as other student groups is not in contravention of U.S. or State Constitution. Att. Gen. Op. 64-54.

Policy regarding devotional exercise in public schools is contrary to the First and Fourteenth Amendments to the U.S. Constitution. Att. Gen. Op. 66-15.

Statute which would include newspapers within definition of public utility and subject them to PUC jurisdiction would be violative of freedom of the press. Att. Gen. Op. 74-11.

Law Journals and Reviews:

Metromedia, Inc. v. City of San Diego: The Conflict Between Aesthetic Zoning and Commercial Speech Protection; Hawaii's Billboard Law Under Fire, Note. 5 UH L. Rev. 79.

Estes v. Kapiolani Women's and Children's Medical Center: State Action and the Balance Between Free Speech and Private Property Rights in Hawaii. 13 UH L. Rev. 233.

The Lum Court and Native Hawaiian Rights. 14 UH L. Rev. 377.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

Burdick v. Takushi: Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate. 14 UH L. Rev. 715.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah: Reaffirming the Supreme Court's Religious Free Exercise Jurisdiction. 16 UH L. Rev. 401.

Curing A Bad Reputation: Reforming Defamation Law. 17 UH L. Rev. 113.

Hawai`i's Response to Strategic Litigation Against Public Participation and the Protection of Citizens' Right to Petition the Government. 24 UH L. Rev. 411.

Emergency Contraception in Religious Hospitals: The Struggle Between Religious Freedom and Personal Autonomy. 27 UH L. Rev. 65.

Case Notes:

Freedom of press.

See also notes to U.S. Const. Amend. 1.

News media liable for negligent defamation of private person. 56 H. 522, 543 P.2d 1356.

The right to free speech under this section was not violated by city ordinance requiring that the area of a booth designated for viewing pornographic videos purchased on the premises of a panoram business be visible from the booth's entryway. 107 H. 314, 113 P.3d 190.

Restraining orders.

Obstructing use of university office constituted conduct outside of First Amendment rights, and ex parte temporary restraining order was not constitutionally invalid. 52 H. 427, 478 P.2d 320.

Freedom of religion.

Under the First Amendment to the U.S. Constitution and this section, civil courts have no authority to resolve disputes that turn on matters of church doctrine, practice, polity, or administration or that cannot be decided without resolving underlying controversies over such matters. When faced with such claims, civil courts must dismiss them. 77 H. 383, 885 P.2d 361.

Not violated by director's failure to grant building height restriction zoning variance for temple hall where plaintiff Buddhist temple failed to demonstrate substantial burden on its free exercise of religion because of height restriction. 87 H. 217, 953 P.2d 1315.

Freedom of speech.

In lawsuit involving a challenge to city and county of Honolulu's practice of charging nonresidents a $3.00 fee to enter bay designated a marine life conservation district and nature preserve, plaintiff's First Amendment rights not violated and ordinance instituting the fee not overbroad. 215 F. Supp. 2d 1098.

Right to receive information and ideas not infringed by statute proscribing possession of marijuana. 56 H. 501, 542 P.2d 366.

Protected speech does not include unprotected obscenity under the First Amendment of U.S. Constitution. 58 H. 440, 573 P.2d 945.

Procedural requirements for seizure of materials in obscenity prosecutions. 63 H. 596, 634 P.2d 80.

Standard for suppression of evidence where seizure violated freedom of speech or expression. 63 H. 596, 634 P.2d 80.

Purchase of allegedly obscene material from "willing sellers" was actually "preconceived search" designed to evade warrant procedures whose specific purpose is protection of First Amendment freedoms. 64 H. 109, 637 P.2d 1095.

Police involvement in enforcing the hospital's right against trespass did not convert actions into a state action; appellants did not have a right to distribute leaflets and express anti-abortion views on hospital premises. 71 H. 190, 787 P.2d 216.

Attorneys' extrajudicial statements may be subject to prior restraint by trial court upon demonstration that the activity restrained poses a serious and imminent threat to defendant's right to a fair trial and to the fair administration of justice. 73 H. 499, 835 P.2d 637.

Defendant's statement not false or defamatory where statement was rhetorical hyperbole--figurative or hyperbolic language that would negate the impression that defendant was asserting an objective fact about plaintiff. 88 H. 94, 962 P.2d 353.

Neither the free speech clause of the U.S. Constitution nor that of the Hawaii constitution impose a temporal "immediacy" requirement that must be met before words become subject to criminal prosecution as "true threats" under §§707-715 and 707-716. 95 H. 465, 24 P.3d 661.

Section 852-1 not unconstitutional as it does not prohibit picketing or the communication of messages altogether, is specifically aimed at conduct causing an obstruction of ingress to or egress from public or private places, and individuals may continue to exercise rights guaranteed by the First Amendment and article I, §4 of the Hawaii constitution as long as they do not do so in a manner prohibited by section. 89 H. 27 (App.), 968 P.2d 194.

Defendant's continuing physical obstruction of the lawful work by the Hawaii county department of water supply on Hawaiian home lands property constituted conduct clearly outside the scope of any First Amendment right to freedom of speech. 105 H. 319 (App.), 97 P.3d 395.

Hawaii Legal Reporter Citations:

Due process. 77-2 HLR 77-793.

Attorney General Opinions:

See also notes to U.S. Const. Amend. 14.

Equal protection--extra tax on liquid fuel imposed only in city and county of Honolulu would not be invalid. Att. Gen. Op. 63-23.

Student regulations at state universities are subject to the vagueness standard but do not require the same specificity required of criminal statutes. Att. Gen. Op. 71-9.

Law Journals and Reviews:

The Hawaii Supreme Court's Criminal Law Decisions 1997-1998: Fair Use of the Doctrine of Plain Error? II HBJ No. 13, at pg. 49.

Res Judicata and Collateral Estoppel in Hawaii: One of These Things is Not Like The Other. III HBJ No. 13, at pg. 1.

Sandy Beach Defense Fund v. City and County of Honolulu: The Sufficiency of Legislative Hearings in an Administrative Setting. 12 UH L. Rev. 499.

State v. Levinson: Limitations on a Criminal Defendant's Use of Peremptory Challenges. 13 UH L. Rev. 279.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai'i Supreme Court. 14 UH L. Rev. 189.

Burdick v. Takushi: Yes to Equal Voice in Voting, No to a Fundamental Right to Vote for Any Particular Candidate. 14 UH L. Rev. 715.

Hawai'i's New Administrative Driver's License Revocation Law: A Preliminary Due Process Inquiry. 14 UH L. Rev. 853.

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447.

The Kamehameha Schools/Bishop Estate and the Constitution. 17 UH L. Rev. 413.

Criminal Procedure Rights Under the Hawaii Constitution Since 1992. 18 UH L. Rev. 683.

Justice Ruth Bader Ginsburg And Gender Discrimination. 20 UH L. Rev. 699.

Re-Identifying American State Democracy: Implications for Same-Sex Marriage and the Nonfungibility of Hawai'i in the Exotic 1950 Statehood Constitution. 22 UH L. Rev. 1.

The Defense of Marriage Act: Sex and the Citizen. 24 UH L. Rev. 279.

Prudent Use of Judicial Minimalism: Why Minimalism May Not be Appropriate in the Context of Same-Sex Marriage. 27 UH L. Rev. 501.

Case Notes:

See also notes to U.S. Const. Amends. 5, 14.

Civil rights.

Employer's policy of denying any extended leave during employee's first year of employment violated Hawaii administrative rule §12-46-108, which was adopted to enforce the legislative mandate of §378-2(1)(A) and Hawaii's constitutional prohibition against sex discrimination in the exercise of a person's civil rights in employment. 89 H. 269, 971 P.2d 1104.

Due process.

Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was arbitrary and irrational, landowners could not meet burden of showing irrationality. 124 F.3d 1150.

Applicable only to state action not private action. 698 F. Supp. 1496.

Where plaintiff alleged that condominium lease-to-fee ordinance violated plaintiff's substantive due process rights, ordinance was a rational exercise of legislative power. 832 F. Supp. 1404.

Ordinance proscribing "presence" at cockfight is too vague to satisfy requirement of due process. 50 H. 384, 441 P.2d 333.

HRS §634-69 providing for service of summons on motorist by publication does not violate due process clause. 50 H. 484, 443 P.2d 155.

Public employees seeking accidental disability retirement benefits are entitled to hearing on contested issues before the board of trustees. 52 H. 212, 473 P.2d 866.

HRS §772-1 making criminal one's wandering about at night without visible business was unconstitutional for vagueness. 52 H. 527, 480 P.2d 148.

HRS §709-33, together with other sections of Part II, Chapter 709, was invalid for failing to require proof of guilt beyond reasonable doubt. 53 H. 40, 487 P.2d 283.

HRS §621-22, allowing introduction of prior convictions to impeach credibility of defendant in criminal case was unconstitutional. 53 H. 254, 492 P.2d 657.

HRS §712-1214(1)(a), with definitions in §712-1210(5), was not void for vagueness. 58 H. 440, 573 P.2d 945.

Procedure followed did not deprive defendant of defendant's right not to be tried while incompetent. 60 H. 17, 586 P.2d 1028.

Hearings on applications for staff privileges at hospitals. 63 H. 430, 629 P.2d 1116.

Irrebuttable presumption created by compulsory retirement age has a rational basis and therefore does not violate due process. 63 H. 501, 630 P.2d 629.

Notice provisions of tax lien statute failed to meet minimum standards of due process. 64 H. 4, 635 P.2d 938.

Ordinance prohibiting distribution of commercial handbills in Waikiki was void for vagueness. 64 H. 148, 637 P.2d 1117.

No violation in denial by trial court of defendant's request to examine witnesses where claim was impermissibly suggestive identification. 64 H. 217, 638 P.2d 324.

Portion of election fraud law void for vagueness. 67 H. 398, 688 P.2d 1152.

Due process denied where lessee's property seized without proper service of process, time to answer, evidence presented by lessor, and opportunity to contest case. 68 H. 466, 719 P.2d 397.

Violated by court's failure to inform defendant of penalties for offense to which defendant pled guilty. 68 H. 498, 720 P.2d 1010.

Defendant denied fair trial when prosecutor expressed personal view to jury that defendant was guilty and defendant's witnesses were not credible. 68 H. 659, 728 P.2d 1301.

One year limitation on right to former spouse's property does not violate due process. 69 H. 1, 730 P.2d 338.

Not violated by proceedings conducted by city council when acting upon Shoreline Management Act permit. 70 H. 361, 773 P.2d 250.

Judge who lodges complaint for criminal contempt may not decide the outcome if there is no jury trial. 70 H. 459, 776 P.2d 1182.

Rule 412, Hawaii rules of evidence, cannot override the constitutional rights of the accused. 71 H. 115, 785 P.2d 157.

Rape victim's clothing was not crucial evidence as to result in an unfair trial. 71 H. 183, 787 P.2d 671.

Ethnical exclusion by prosecution. 71 H. 300, 788 P.2d 841.

Defendant's right to a fair trial was denied due to State's suppression of evidence. 71 H. 347, 791 P.2d 392.

Mandatory sentences are not unconstitutional; there is no constitutional right to probation. 71 H. 485, 795 P.2d 842.

In criminal cases, peremptory challenges cannot be based solely on race, religion, sex, or ancestry. 71 H. 492, 795 P.2d 845.

Violated where there were unreasonable delays by administrative malfunctions of prosecutor's office and loss of tapes by police. 71 H. 537, 797 P.2d 1312.

Right to fair trial denied where sum of prosecutor's conduct was prejudicial. 72 H. 278, 815 P.2d 428.

Police tactics designed to detect drug-related offenses, including officer posing as drug dealer and supplying and selling drugs in "reverse buy" operation, were not so outrageous as to deprive defendant of right to due process. 73 H. 179, 830 P.2d 492.

Claim for relief against state officials based on alleged illegality of exchange of ceded lands was barred by State's sovereign immunity. 73 H. 578, 837 P.2d 1247.

Right not violated by defendant's absence from conference settling jury instructions as conference does not involve jury's presence or witness testimony. 74 H. 141, 838 P.2d 1374.

Requires unbiased administrative adjudicators; no violation where §88-77 trustees not shown to have pecuniary or institutional disqualifying interest in adjudication. 74 H. 181, 840 P.2d 367.

Written notice of specific charges not required for §710-1077(1)(a) direct summary criminal contempt case; contemnor's misconduct and judge's response did not require contempt trial before different judge. 74 H. 267, 842 P.2d 255.

Use at sentencing of statements previously obtained in violation of a defendant's privilege against self-incrimination violates that defendant's privilege against self-incrimination and right to due process. 74 H. 424, 848 P.2d 376.

Third-party agreements homestead lessees entered into with third party non-Hawaiian farmers could not be considered property interests. 76 H. 128, 870 P.2d 1272.

Appellant had a right under the due process clause, to be given reasonable notice of the circuit court's intention to apply §706-660.1(a) (1985) in sentencing appellant in connection with kidnapping conviction and to be afforded the opportunity to be heard with respect thereto. 76 H. 517, 880 P.2d 192.

Coercive conduct of a private person may be sufficient to render a confession inadmissible based on this section and article I, §10 of Hawai'i constitution. 77 H. 51, 881 P.2d 538.

Because appellants had been afforded an adequate opportunity to challenge the fine assessed by department of land utilization on appeal--at both administrative and judicial levels--before they incurred any obligation to pay it, the application of the procedural mechanism set forth in section of land use ordinance had not violated their right to due process of law. 77 H. 168, 883 P.2d 629.

Supreme court declined to hold that State must tape record a custodial interrogation in order to establish a valid waiver of a criminal defendant's constitutional rights. 77 H. 403, 886 P.2d 740.

Presumption of nonconsent imposed on appellant a burden of persuasion of the nonexistence of an essential element of the crime with which appellant was charged; so construed, the presumption would violate due process clauses of Fourteenth Amendment to U.S. Constitution and this section by virtue of improperly shifting burden of proof to appellant. 78 H. 262, 892 P.2d 455.

To protect the right to testify under Hawai'i constitution, trial courts must advise criminal defendants of their right to testify and must obtain on-the-record waiver of that right in every case in which the defendant does not testify. 79 H. 226, 900 P.2d 1293.

Reversible error where jury may have reached verdict by improperly shifting burden of proof from prosecution to defense by concluding that defendant had not established defendant's claim of extreme mental or emotional distress before considering whether prosecution had disproved that defense beyond a reasonable doubt. 80 H. 172, 907 P.2d 758.

Defendant received adequate notice that consecutive sentences may be imposed by sentencing court where court had that discretion by statute, and plain language of §706-668.5 informed defendant that defendant may be sentenced to consecutive sentences. 81 H. 309, 916 P.2d 1210.

The right of an accused to a unanimous verdict in a criminal prosecution, tried before a jury in a court of this State, is guaranteed by this section and §14 of this article of the Hawaii constitution. 84 H. 1, 928 P.2d 843.

When separate and distinct culpable acts are subsumed within a single count charging a sexual assault, the trial court must either (1) require the prosecution to elect the specific act upon which the prosecution is relying to establish the "conduct" element of the charged offense, or (2) give the jury a specific unanimity instruction. 84 H. 1, 928 P.2d 843.

Section 704-415 does not violate due process principles; at release hearing, insanity acquittee bears burden of proving by preponderance of evidence freedom from mental illness and dangerous propensities. 84 H. 269, 933 P.2d 606.

Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights. 86 H. 48, 947 P.2d 360.

In products liability action, cumulative effect of three alleged errors by trial court did not deny defendants right to fair trial where overwhelming and substantial evidence supported jury's verdict. 86 H. 214, 948 P.2d 1055.

Although appellant was not afforded an opportunity to cross-examine witnesses who had testified at a public hearing but not before the zoning board of appeals, error was harmless beyond a reasonable doubt. 87 H. 217, 953 P.2d 1315.

Director's exposure to materials outside the record constitutionally harmless beyond a reasonable doubt as director expressly declined to consider material in rendering decision. 87 H. 217, 953 P.2d 1315.

A trial court must pass on a defendant's attempted withdrawal of the prior waiver of his or her right to testify, tendered before the commencement of closing arguments, pursuant to the "liberal approach", whereas such an attempted withdrawal tendered thereafter is subject to the "manifest injustice" standard. 88 H. 407, 967 P.2d 239.

Where defendant did not meet burden of establishing plausible and legitimate reasons for withdrawal of defendant's prior waiver of defendant's right to testify, defendant failed to present "fair and just reasons" for defendant's request to exercise defendant's right to testify in defendant's own behalf; thus trial court did not abuse discretion by ruling that it would not reopen case. 88 H. 407, 967 P.2d 239.

Where trial court's denial of defendant's post-verdict motion for a new trial--based on defendant's claim that defendant's attempt to withdraw defendant's waiver of right to testify in defendant's own behalf should have been allowed--was not "manifestly unjust", no abuse of discretion. 88 H. 407, 967 P.2d 239.

Where trial court failed to correct prosecution's erroneous interpretation of "remains unlawfully" under §708-810, defendant's constitutional rights to due process and a unanimous jury verdict violated. 89 H. 284, 972 P.2d 287.

A vessel and its accompanying mooring and live-aboard permits are constitutionally protected "property", of which an individual may not be deprived without notice and an opportunity to be heard. 91 H. 1, 979 P.2d 586.

Procedural due process violated where State informed boat owner by letter of impoundment and possible disposal of vessel, but made no mention of any procedures available for challenging that action, administrative or otherwise, and boat owner was never provided with an opportunity to be heard on matter of vessel's impoundment. 91 H. 1, 979 P.2d 586.

Findings under §706-662(5) regarding (a) the age or handicapped status of the victim and (b) whether "such disability is known or reasonably should be known to the defendant" entail "intrinsic" facts; Hawaii constitution requires these findings to be made by the trier of fact, not the sentencing court. 91 H. 261, 982 P.2d 890.

For purposes of this section, due process requires that an order for the nonemergency involuntary administration of antipsychotic medications to a criminal defendant must be based upon facts found by clear and convincing evidence. 91 H. 319, 984 P.2d 78.

Three separate findings required by trial court before criminal defendant may constitutionally be involuntarily medicated with antipsychotic drugs, where it is alleged that the medication is necessary because the defendant poses a danger to himself or herself or others. 91 H. 319, 984 P.2d 78.

Out-of-state attorneys, who were granted pro hac vice status, not denied procedural due process prior to revocation of status and imposition of sanctions where three separate oral notices were given to one attorney and to local counsel. 91 H. 372, 984 P.2d 1198.

Defendant's constitutional right to unanimous verdict not violated as §707-715 defines a single criminal offense; subsections (1) and (2) constitute alternative means of establishing the mens rea of the offense of terroristic threatening--either one giving rise to the same criminal culpability. 92 H. 577, 994 P.2d 509.

Where evidence concerned only a single incident of culpable conduct, trial court was not required to read the jury a specific unanimity instruction; right to unanimous verdict thus not violated. 93 H. 199, 998 P.2d 479.

In sex assault case, jury instruction as to ineffective consent prejudicially affected defendant's rights because (1) the jury was instructed that it could convict defendant based on the absence of consent under §702-233 or any of the four grounds of ineffective consent under §702-235, (2) there was a reasonable possibility that the verdict was based upon at least one of the four grounds of ineffective consent, and (3) there was legally insufficient evidence to support any of the four grounds of ineffective consent. 96 H. 161, 29 P.3d 351.

Unanimity is not required where alternative means of establishing an element of an offense are submitted to the jury, provided that there is no reasonable possibility that the jury's verdict was based on an alternative unsupported by sufficient evidence. 96 H. 161, 29 P.3d 351.

Juror questioning of witnesses did not deprive defendant of fair and impartial trial where questions posed by jurors were carefully reviewed by the trial court and questions tending to elicit improper or inadmissible evidence were excluded. 97 H. 206, 35 P.3d 233.

As §846E-3 operated to deprive defendant of a protected liberty interest and provided defendant with neither notice nor an opportunity to be heard prior to notifying the public of defendant's status as a convicted sex offender, §846E-3 denied defendant due process under this section; §846E-3 thus void and unenforceable. 97 H. 285, 36 P.3d 1255.

As the registration requirements of chapter 846E do not interfere with any of a sex offender's protected liberty interests, the protections of procedural due process are not triggered. 97 H. 285, 36 P.3d 1255.

Defendant's right to a unanimous jury verdict not violated by trial court's refusal to give a specific unanimity instruction as defendant's actual and constructive possession of the methamphetamine comprised a continuing course of conduct. 99 H. 198, 53 P.3d 806.

As an aspect of procedural due process, individuals must, as needed, be provided an interpreter at family court proceedings where their parental rights are substantially affected. 99 H. 522, 57 P.3d 447.

Parents have a substantive liberty interest in the care, custody, and control of their children protected by the due process clause of this section. 99 H. 522, 57 P.3d 447.

Where negativing of defendant's mitigating extreme mental or emotional distress defense by prosecution was a material element of the offense of first degree murder such that jury unanimity was a prerequisite to returning any verdict, and trial court's special instruction expressly directed the jury to convict defendant of manslaughter if a single juror believed that the prosecution had failed to negative the mitigating defense, right to unanimous jury verdict violated. 99 H. 542, 57 P.3d 467.

Where family court conducted an in camera review of the complainant's child protection services records and produced the relevant portions to defense counsel, defendant's due process rights not violated; and family court's order to seal the remaining portions of the child protection services file for appellate review did not constitute an abuse of discretion. 101 H. 172, 65 P.3d 119.

The alternative states of mind potentially requisite to the charged offense of second degree theft by shoplifting, as prescribed by the definition of "intent to defraud" set forth in §708-800, does not implicate a defendant's constitutional right to a unanimous jury verdict, as guaranteed by article I, §14 and this section of the Hawaii constitution; a proper elements instruction, which sets forth the alternative states of mind prescribed by the "intent to defraud" component of second degree theft by shoplifting, does not violate defendant's constitutional right. 101 H. 389, 69 P.3d 517.

Lost opportunities for concurrent sentencing, parole, and loss of parental rights do not affect a defendant's ability to present an effective defense, and thus do not constitute actual substantial prejudice to a defendant's due process right to a fair trial. 102 H. 183, 74 P.3d 6.

Where there was no evidence that the trial court either reviewed the reasons for the preindictment delay prior to requiring a showing of actual substantial prejudice to the defendant or required a showing of something less than actual substantial prejudice, the trial court did not misapply the correct standard to be used to determine whether charges should be dismissed for preindictment delay. 102 H. 183, 74 P.3d 6.

Vexatious litigant's due process right not impacted in present or future cases where litigant was only restrained from bringing unmeritorious litigation, which could be restricted in any event; as trial court held a hearing to review litigant's objections to prefiling order, order imposed on litigant under §634J-7 satisfied procedural due process because it afforded litigant notice and an opportunity to be heard. 102 H. 289, 75 P.3d 1180.

Section 663-15.5 adequately protects a non-settling joint tortfeasor's right to procedural due process; subsections (b) and (c) afford a non-settling joint tortfeasor notice and an opportunity to be heard regarding the determination whether a settlement has been given in good faith and, consequently, bars cross-claims for contribution against the settling joint tortfeasor. 102 H. 399, 77 P.3d 83.

No prosecutorial misconduct by prosecutor's questions and remarks regarding defendant's failure to "explain away" the DNA evidence as questions and remarks were more analogous to legitimate prosecutorial comment on the state of the evidence and not the improper shifting of the burden of proof onto the defendant. 103 H. 38, 79 P.3d 131.

Where defendant's statements were not the product of "interrogation", but, rather, were "volunteered confessions or admissions, obtained independent of express police questioning or its functional equivalent", defendant's constitutional rights against self-incrimination and due process of law not violated. 104 H. 224, 87 P.3d 893.

The lifetime registration component of the Hawaii sex offender registration statute implicates a protected liberty interest under this section and requires that minimum requirements of due process--notice and opportunity to be heard--be afforded to convicted sex offenders; such a proceeding may be instituted by a sex offender in a special proceeding. 105 H. 222, 96 P.3d 242.

Under this section, due process requires that a convicted sex offender under §846E-1 be afforded the right to a judicial hearing at which evidence may be offered to demonstrate that continuance of all or part of the lifetime registration requirements are not necessary in a particular case to fulfill the public need to which the sex offender act responded. 105 H. 222, 96 P.3d 242.

Applying the covered loss deductible under §431:10C-301.5 to plaintiff's recovery of underinsured motorist benefits did not violate plaintiff's right to substantive due process as the legislature's policy determination to enact this section to reduce one of the costs of the motor vehicle insurance system was expressly within the constitutional purview of the legislature. 106 H. 511, 107 P.3d 440.

Assuming that possession of leased premises and rent to be paid into the trust fund are property interests protected under the due process clause, §666-21 does not offend due process as tenants are afforded an opportunity to challenge summary possession and motions for the establishment of a rent trust fund. 107 H. 73, 110 P.3d 397.

Right not violated by administrative driver's license revocation hearing procedure where defendant was afforded a hearing where witnesses were called and defendant was represented by counsel, and hearing office advised counsel of the procedure that hearing officer was going to follow. 108 H. 31, 116 P.3d 673.

Where mother was denied an opportunity to be heard at a meaningful time and in a meaningful manner as to the termination of her parental rights--that is, without a trial concerning her substantive liberty interests in the care, custody, and control of her children--mother was deprived of the custody of her children without a fair hearing. 108 H. 144, 118 P.3d 54.

Deprivation of property solely on basis of substituted service in adverse possession action violates due process, where, with due diligence, actual notice possible. 6 H. App. 241, 718 P.2d 1109.

Does not require agency hearing before tax director issues notices of tax assessment. 6 H. App. 260, 718 P.2d 1122.

In paternity action, due process not violated by exclusion of sexual access information and preclusion of cross-examination of mother regarding her earlier pregnancy. 6 H. App. 629, 736 P.2d 448.

Act of state witness leaving witness stand in presence of security personnel was not so prejudicial as to deny defendant's right to fair trial; jury is presumed to adhere to court's cautionary instruction to draw no inference from event. 8 H. App. 624, 817 P.2d 130.

Violated where court imposed attorney sanctions pursuant to its powers under §603-21.9 without adequate prior notice and reasonable opportunity to be heard. 9 H. App. 249, 833 P.2d 85.

Because the constitutional right of allocution is one afforded "pre-sentence", manifestly, the defendant must be given the opportunity to be heard before the court imposes sentence; defendant had right of allocution before being sentenced for misdemeanor offense of driving with revoked license and for violation charge of illegal turn. 77 H. 241 (App.), 883 P.2d 663.

Defendant's constitutional and statutory right to testify in defendant's own defense was violated where judge reproached defendant to follow defendant's attorney's advice and thus refrain from testifying, and the violation was plain error; denial of the right to testify was prejudicial and not harmless beyond a reasonable doubt. 78 H. 115 (App.), 890 P.2d 702.

Defendant's right to an impartial judge was violated where nature and extent of the court's questioning of one of the complainants demonstrated that the court assumed the role of a prosecutor, thus failing to act impartially. When the court assumes the role of a prosecutor, it violates the fundamental due process requirement that the tribunal be impartial, and such an error, by definition, is inherently prejudicial and not harmless. 78 H. 115 (App.), 890 P.2d 702.

Motions court's order denying defendant's pre-trial motion to dismiss for pre-indictment delay affirmed, where, inter alia, motions court was correct in concluding that defendant failed to establish that defendant's claimed inability to recollect events prior to defendant's indictment, even with the aid of others, amounted to substantial prejudice to defendant's right to a fair trial. 79 H. 165 (App.), 880 P.2d 217.

Violated where trial court's exclusion of gun-like cigarette lighter prejudiced defendant by precluding jury from properly evaluating essential defense evidence. 79 H. 385 (App.), 903 P.2d 690.

Violated where petitioner whose driver's license was administratively revoked denied right to cross-examine director's representative regarding basis for continuance of administrative hearing. 80 H. 358 (App.), 910 P.2d 129.

Defendant entitled to elicit evidence of complainant's past sexual behavior, not to attack complainant's character, but to determine whether complainant was mentally defective and whether defendant knew that complainant was mentally defective. 81 H. 447 (App.), 918 P.2d 254.

Where discussion that defendant was subject to mandatory minimum terms of imprisonment pursuant to §706-660.1 was conducted at bench outside of defendant's hearing, defendant was not given reasonable notice of intended application of mandatory minimum term statute. 82 H. 158 (App.), 920 P.2d 372.

Section 291C-112, which prohibits the use of a vehicle "for purposes of human habitation", not unconstitutionally vague. 82 H. 269 (App.), 921 P.2d 1170.

"Reasonable grounds" standard of §709-906(4) not unconstitutionally vague where standard is an objective standard requiring a trial court to independently assess facts and circumstances which responding officers had before them in determining to issue warning citations. 82 H. 381 (App.), 922 P.2d 994.

Section 709-906(4) not overbroad as issuance of warning citation must be based on objective facts and circumstances, other than merely a complainant's claim, which would lead a reasonable police officer to believe recent physical abuse was inflicted on family or household member. 82 H. 381 (App.), 922 P.2d 994.

Violated where claimant failed to serve employer and insurer with motion and summons; circuit court thus did not acquire personal jurisdiction over employer and insurer and judgment and garnishee summons issued pursuant to §386-91 in absence of personal jurisdiction void. 82 H. 405 (App.), 922 P.2d 1018.

Procedural due process right not denied when guardian ad litem not appointed for mother where mother was provided with court-appointed attorney and, pursuant to §587-34(d), court determined mother was capable of comprehending legal significance of issues. 85 H. 119 (App.), 938 P.2d 178.

Application of preponderance of the evidence standard as appropriate judicial basis for issuance of protective order under §586-5.5 does not violate right. 85 H. 197 (App.), 940 P.2d 404.

Where building addition was permitted structure under zoning ordinance in existence at time subsequent land use ordinance was adopted, requiring landowner to remove addition and pay daily fines until addition was removed constituted interference with landowner's vested property rights under this clause. 86 H. 343 (App.), 949 P.2d 183.

Right violated where circuit court's instruction to jury regarding the statutory presumption created by §708-801(4) failed to further instruct jury pursuant to HRE rule 306(a) that the presumption is merely a permissible inference of fact and that in order to apply the presumption, the jury must find that the presumed fact exists beyond a reasonable doubt. 88 H. 216 (App.), 965 P.2d 149.

As no Hawaii statute governing parole requires a parolee's parole to be automatically revoked upon the parolee's conviction and sentence to imprisonment for a crime committed while on parole, and §353-62 appears to vest Hawaii paroling authority with discretion to revoke parole, parolee's right violated when authority summarily revoked parole without giving parolee a final revocation hearing. 88 H. 229 (App.), 965 P.2d 162.

Section 852-1 not void for vagueness as: (1) a person of ordinary intelligence would have a reasonable opportunity to know that it is unlawful to refuse or wilfully fail to move as directed by an officer; (2) person may then choose between the lawful and unlawful conduct; and (3) the statute provides sufficiently explicit standards for those who apply it. 89 H. 27 (App.), 968 P.2d 194.

Under the due process clause of the Hawaii constitution, entrapment by estoppel defense may be raised against the State in criminal cases and clause would be violated if the facts established the defense. 89 H. 27 (App.), 968 P.2d 194.

Section 52D-8 provides officers with a constitutionally protected property interest--the right to legal representation for acting within the scope of their duty; due process thus entitles an officer to a contested case hearing under chapter 91 before the officer can be deprived of this interest. 89 H. 221 (App.), 971 P.2d 310.

Right violated where jury instruction failed to correctly convey proof beyond a reasonable doubt standard to jury; instruction that jury must be "firmly convinced" of defendant's guilt diminished this very high standard by which jury must abide in order to convict. 90 H. 113 (App.), 976 P.2d 427.

Right violated by trial court entering free-standing restitution order where no notice was provided to defendant that defendant's original sentence might be modified at the hearing on the probation officer's motion to revoke restitution. 92 H. 36 (App.), 986 P.2d 987.

Where trial court did not apply clear and convincing standard of proof on complainant as required by §604-10.5, applied a subjective rather than objective reasonable person standard in evaluating whether defendant's conduct caused complainant emotional distress, and violated defendant's due process rights, court erred by denying defendant's motion for reconsideration of injunction order. 92 H. 330 (App.), 991 P.2d 840.

Where there was a distinct and reasonable possibility that trial court's error in commenting upon the location of the incriminating items contributed to the conviction of the defendants, error materially impinged upon defendants' right to trial by jury, and error was not harmless beyond a reasonable doubt. 92 H. 675 (App.), 994 P.2d 607.

The conditions for eligibility for parole under the Hawaii sex offender treatment program, which includes admitting to committing a sexual offense, implicate a protected liberty interest under this section; this section of the Hawaii constitution provides an independent basis for the due process right to a sex offender classification hearing before such requirements may be imposed. 93 H. 298 (App.), 1 P.3d 768.

Where there was no genuine possibility that the jurors were not unanimous as to the conduct for which defendant was found culpable, trial court's failure to give specific unanimity instruction as to the methamphetamine manufacturing offense did not violate defendant's substantial due process right to a unanimous jury verdict. 95 H. 365 (App.), 22 P.3d 1012.

Section 711-1102 not unconstitutionally vague under this section as its language is specific and clear, it is narrowly tailored to a person's failure to disperse pursuant to a law enforcement order to leave the immediate vicinity of disorderly conduct, and citizens of this State should thus have no difficulty in understanding §711-1102. 101 H. 153 (App.), 64 P.3d 282.

Defendant's right violated where, based on the specific facts of the case, trial court abused its discretion in directing, over defendant's objection, that defendant testify before defendant's other defense witness; error not harmless beyond a reasonable doubt as there was a reasonable possibility that trial court's error contributed to defendant's conviction. 102 H. 369 (App.), 76 P.3d 612.

Having been previously convicted of driving without motor vehicle insurance, driver was clearly on notice that driving without motor vehicle insurance was a criminal offense; thus, revocation of driver's suspended sentence for commission of the same offense during the period of suspension did not implicate driver's due process rights. 106 H. 391 (App.), 105 P.3d 1197.

Equal protection.

See also notes to U.S. Const. Amend 14.

Ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests was constitutional. 124 F.3d 1150.

Applicable only to state action not private action. 698 F. Supp. 1496.

Not violated where city ordinance providing mechanism for transfer of fee simple interest from condominium lessors to lessees did not intentionally discriminate against Native Hawaiians. 802 F. Supp. 326.

Condominium lease-to-fee ordinance did not violate plaintiff's equal protection rights. 832 F. Supp. 1404.

No violation, where plaintiff argued that §490:2-725 discriminated among two classes of warranty claimants, and appeared to argue that UCC arbitrarily discriminated among differing classes of defendants, insofar as it granted partial immunity to those in commercial sales without similarly limiting the liability of others potentially liable for industrial diseases. 854 F. Supp. 702.

Where plaintiffs filed motion for preliminary injunction regarding Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, plaintiffs not likely to prevail on constitutional claims under Fourteenth and Fifteenth Amendments of U.S. Constitution, article II, §1 and this section of Hawaii constitution, or Voting Rights Act with regards to native Hawaiian vote. 941 F. Supp. 1529.

In view of underlying differences between cars and motorcycles, §286-81(1)(A), requiring motorcycle safety helmets, does not violate the equal protection clause. 55 H. 138, 516 P.2d 709.

Requirement that a woman visitor to an all-male prison wear a brassiere is not invalid. 59 H. 346, 581 P.2d 1164.

The protection of this section is not necessarily limited to that provided by the Fourteenth Amendment. 60 H. 71, 588 P.2d 394.

Constitutionality of statute regulating taking of nehu upheld. 60 H. 662, 594 P.2d 130.

In context of equal protection analysis, right to work does not invoke application of strict scrutiny. 60 H. 662, 594 P.2d 130.

Rational basis exists for compulsory retirement age for state employees. 63 H. 501, 630 P.2d 629.

No rational basis for disparate treatment of classes in establishing statute of limitations. 65 H. 26, 647 P.2d 276.

Certain provisions of motor vehicle insurance law denied equal protection. 65 H. 623, 656 P.2d 736.

Right to privacy does not invoke strict scrutiny; rational basis for county to require financial disclosure by "regulatory employees". 68 H. 140, 706 P.2d 814.

Public policy against racial discrimination. 69 H. 238, 738 P.2d 1205.

Sex is suspect category for purposes of equal protection analysis under this section; §572-1 is presumed to be unconstitutional unless defendant, as agent of State, can show that statute's sex-based classification is justified by compelling state interests, and statute is narrowly drawn to avoid unnecessary abridgments of applicant couples' constitutional rights. 74 H. 530, 852 P.2d 44.

Where county imposed impermissibly discriminatory tax, county must be given certain options to correct the impermissible discrimination. 81 H. 248, 915 P.2d 1349.

Section 704-415 does not violate equal protection; State may place burden on insanity acquittee to prove by preponderance of evidence that acquitee should be released. 84 H. 269, 933 P.2d 606.

Not violated by trial court's redaction of home street addresses and home and work telephone numbers on juror qualification forms where redaction procedure was not administered differently against other similarly situated criminal defendants having jury trials in the first circuit. 85 H. 258, 942 P.2d 522.

Where violation of misdemeanor offense under §712-1248(1)(d) also constituted violation of felony offense under §712-1247(1)(h), conviction of felony offense would have constituted violation of defendant's due process and equal protection rights. 86 H. 48, 947 P.2d 360.

Not violated by §431:10C-306 (pre-1997) as applied to persons ineligible for no-fault benefits. 87 H. 297, 955 P.2d 90.

As chapter 671 rationally furthers legitimate state interest of assuring the provision of affordable health care to Hawaii's citizens by requiring participation in medical malpractice dispute resolution such that the high cost of litigation may be avoided, plaintiff not denied equal protection of the laws. 89 H. 188, 970 P.2d 496.

Not violated by county ordinance classifying time share units into "hotel resort" category where classification was reasonably related to ordinance's stated purpose of eliminating disproportionate tax burdens within that category and classification applied to properties whose actual use was transient or short-term, regardless of whether the units were used personally. 90 H. 334, 978 P.2d 772.

Clause not violated by §709-906 as State has a legitimate interest in protecting the health, safety, and welfare of its citizens, enactment of §709-906 to address family violence within the community is "legitimate" in protecting Hawaii's citizens, and as including family and household members within scope of §709-906 may reduce or deter family violence by imposing upon violators greater criminal punishment than criminal assault, it is rationally related to the State's interest in preventing incidents of family violence. 93 H. 63, 996 P.2d 268.

Search warrant did not violate appellant's rights under the U.S. and Hawaii Constitutions although it was not issued against any other bettors; to raise the selective prosecution defense, appellant needed to present sufficient evidence as to why appellant was prosecuted while the other seven bettors were not; reason provided by appellant that detective arbitrarily "classified" appellant as part of a conspiracy did not explain why only appellant was subject to the search warrant nor did it distinguish appellant from other bettors. 104 H. 323, 89 P.3d 823.

As the imposition of a rent trust fund--requiring tenants to pay rent in exchange for possession for the duration of the dispute--appears rationally related to achieving the purpose of providing landlords with an expeditious alternative to eviction proceedings and tenants with an opportunity to maintain possession so long as rent is paid when properly due, §666-21 does not violate this clause. 107 H. 73, 110 P.3d 397.

Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed. 109 H. 240, 125 P.3d 461.

No procedural due process violation where prisoner was placed and retained in administrative segregation. 7 H. App. 502, 753 P.2d 816.

Not violated by §291C-112, which rationally furthers legitimate state interest in protecting health and welfare of public at large by prohibiting use of vehicles parked on public property as places of habitation during certain hours. 82 H. 269 (App.), 921 P.2d 1170.

Not violated by use of preponderance of evidence standard of proof for §586-5.5 as family and household members not suspect class and rational basis underlying this standard adopted by legislature under chapter 571 for chapter 586 was to facilitate and expedite judicial issuance of protective orders. 85 H. 197 (App.), 940 P.2d 404.

As a suspect classification or fundamental right was not involved, and based upon dissimilar statutory treatment generally accorded to possession of marijuana as opposed to alcohol, where there was a rational basis for dissimilar punishment, §710-1022 did not violate defendant's right because it imposed a more severe penalty for a prisoner's marijuana possession than for alcohol possession under §710-1023. 92 H. 217 (App.), 990 P.2d 115.

1998 Amended Child Support Guidelines classification challenged by father was constitutional as it reasonably calculated the child support payable for child without regard to child support owed by the non-custodial parent to other children, whether by a previous court order or a non-adjudicated legal obligation, and reasonably imposed upon the non-custodial parent the burden of proving that exceptional circumstances warrant deviation from the calculated amount. 104 H. 449 (App.), 91 P.3d 1092.

Hawaii Legal Reporter Citations:

Due process.

Mooring permit. 80-1 HLR 800249.

Vagueness. 81-1 HLR 810147.

Equal protection.

Beverage containers. 78-2 HLR 78-1478.

Law Journals and Reviews:

State v. Kam: The Constitutional Status of Obscenity in Hawaii. 11 UH L. Rev. 253.

State v. Rothman: Expanding the Individual's Right to Privacy Under the Hawaii Constitution. 13 UH L. Rev. 619.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai‘i Supreme Court. 14 UH L. Rev. 189.

The Lum Court and the First Amendment. 14 UH L. Rev. 395.

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447.

Vernonia Sch. Dist. v. Acton: Now Children Must Shed Their Constitutional Rights at the Schoolhouse Gate. 18 UH L. Rev. 869.

Should The Right To Die Be Protected? Physician Assisted Suicide And Its Potential Effect On Hawai‘i. 19 UH L. Rev. 783.

When Children Prey on Children: A Look at Hawai‘i's Version of Megan's Law and its Application to Juvenile Sex Offenders. 20 UH L. Rev. 477.

Privacy Outside of the Penumbra: A Discussion of Hawai‘i's Right to Privacy After State v. Mallan. 21 UH L. Rev. 273.

Emergency Contraception in Religious Hospitals: The Struggle Between Religious Freedom and Personal Autonomy. 27 UH L. Rev. 65.

Your Body, Your Choice: How Mandatory Advance Health-Care Directives Are Necessary to Protect Your Fundamental Right to Accept or Refuse Medical Treatment. 27 UH L. Rev. 201.

Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone: The Need For Privacy in the Public Sphere. 27 UH L. Rev. 377.

Case Notes:

Parents' right to give their child any name they wish. 466 F. Supp. 714.

Right of privacy does not encompass sex for a fee in a private apartment. 66 H. 616, 671 P.2d 1351.

Public officials' expectation of financial privacy qualified by constitution's code of ethics. 68 H. 140, 706 P.2d 814.

A person has a right to read or view pornographic material in the privacy of one's own home, along with this right is the right to purchase such materials for personal use; section affords much greater privacy right than federal right to privacy; State must show a compelling state interest to infringe upon the right of privacy. 69 H. 483, 748 P.2d 372.

A person using a private telephone line has a reasonable expectation of privacy; pen register warrant required the signature of a circuit court judge. 70 H. 546, 779 P.2d 1.

Not violated by police drug testing program. 71 H. 568, 799 P.2d 953.

There is no fundamental right to marriage for same-sex couples under this section. 74 H. 530, 852 P.2d 44.

Information that must be disclosed pursuant to §92F-14(b)(4)(B) regarding a public employee's employment-related misconduct and resulting discipline not "highly personal and intimate information" and thus not within scope of Hawaii's constitutional right to privacy. 83 H. 378, 927 P.2d 386.

Purported right to possess and use marijuana not a fundamental right; where defendant failed to prove §712-1249 lacked any rational basis, section constitutional. 86 H. 440, 950 P.2d 178.

Right to privacy in this section does not encompass right to possess and use marijuana for recreational purposes. 86 H. 440, 950 P.2d 178.

The right to privacy under this section does not encompass the right to view adult material in an enclosed booth within a commercial establishment. 107 H. 314, 113 P.3d 190.

Chapter 584 did not implicate father's fundamental privacy right to procreational autonomy, but rather father's economic interest in not supporting his child, and although father had standing to raise an equal protection challenge to chapter 584, that standing was based on a non-suspect classification, i.e., the biological relationship of fathers to their children; thus, because chapter 584 bears a rational relation to the public welfare, the statute survives rational basis review and father's privacy and equal protection arguments failed. 109 H. 240, 125 P.3d 461.

Not violated by firefighters drug testing program. 8 H. App. 571, 816 P.2d 306.

Section 711-1102 does not violate the right to privacy under this section as it is not a "sweeping infringement on the freedom of movement and privacy"; to prevent the substantial harm or serious inconvenience, annoyance or alarm to the public, it is reasonably necessary for law enforcement to order those participating in the disorderly conduct and those in the immediate vicinity to disperse until the disorderly conduct comes to an end. 101 H. 153 (App.), 64 P.3d 282.

Law Journals and Reviews:

Suppression of Evidence Without the Aid of the Fourth, Fifth and Sixth Amendments. 8 HBJ 109.

State v. Sherlock: Police Use of a Controlled Purchase of Contraband to Corroborate an Informant's Tip. 12 UH L. Rev. 237.

State v. Rothman: Expanding the Individual's Right to Privacy Under the Hawaii Constitution. 13 UH L. Rev. 619.

Employee Rights Under Judicial Scrutiny: Prevalent Policy Discourse and the Hawai‘i Supreme Court. 14 UH L. Rev. 189.

State v. Quino: The Hawai‘i Supreme Court Pulls Out All the "Stops". 15 UH L. Rev. 289.

Criminal Procedure Rights Under the Hawaii Constitution Since 1992. 18 UH L. Rev. 683.

Wyoming v. Houghton: The Bright Line Search Includes Passengers' Belongings. 22 UH L. Rev. 645.

Don't Smile, Your Image Has Just Been Recorded on a Camera-Phone: The Need For Privacy in the Public Sphere. 27 UH L. Rev. 377.

Case Notes:

See also notes to U.S. Const. Amends. 1, 4.

Section incorporates the 4th Amendment of the federal constitution and is intended to give the State the benefit of federal decisions construing the language. 45 H. 295, 309, 367 P.2d 499.

State supreme court may extend greater protection than is extended by federal decisions, if deemed appropriate. 50 H. 138, 433 P.2d 593.

Investigative encounter "consensual" only if, prior to start of questioning, person informed of right to decline participation and that person could leave at any time, and person thereafter voluntarily participates. 75 H. 558, 867 P.2d 903.

No violation of defendant's due process right to a fair trial by prosecution's refusal to reveal exact dates of confidential informant's observations as exact dates were not necessary in order for defendant to challenge district court's findings of probable cause. 88 H. 396, 967 P.2d 228.

Investigative stop lawful where officer articulated specific facts, including defendant's profuse perspiring and rapidly approaching officer with hands moving in pocket, to establish officer's objectively reasonable belief that "criminal activity was afoot"; subsequent pat down search by officer which was limited to defendant's outer clothing was lawful where it was objectively reasonable for officer to believe that defendant was armed with a knife and presently dangerous. 93 H. 502 (App.), 6 P.3d 374.

Privacy.

Arrest of defendants sunbathing nude on public beach did not violate their right of privacy. 52 H. 226, 475 P.2d 684.

Where government secret agent is invited to private home to purchase marijuana and later goes there and makes purchase, agent's activities do not constitute unreasonable invasion of privacy. 54 H. 513, 510 P.2d 1066.

This provision does not elevate right of privacy to equivalent of First Amendment right. 56 H. 271, 535 P.2d 1394.

Helicopter observation of open marijuana patch was not "an invasion of privacy". 58 H. 412, 570 P.2d 1323.

Words "invasion of privacy" were designed to protect against extensive governmental use of electronic surveillance techniques and undue governmental intrusion into areas of a person's life necessary to insure individuality and human dignity. 58 H. 412, 570 P.2d 1323.

Use by police of ruse to effect voluntary opening of door and subsequent entry without use of force for purpose of executing lawful arrest warrant reasonable under this section. 83 H. 13, 924 P.2d 181.

Regardless of the number of times that the police tested defendant's blood sample for its DNA, no violation of defendant's constitutional right to privacy occurred because the analyses did not exceed the objective for which the original warrant was sought--DNA testing for the purpose of identification. 103 H. 38, 79 P.3d 131.

Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine. 104 H. 109, 85 P.3d 634.

Even assuming the crime stoppers' anonymous tip was not "tainted" as a result of it being relayed to school officials via a police officer, the anonymous tip failed to provide even reasonable suspicion, much less probable cause, to justify the search of minor; the anonymous tip bore no indicia of reliability--the identity or status of the informant, the time the tip came in, the basis, if any, for the informant's knowledge, and the reliability of its assertion of illegality. 104 H. 403, 91 P.3d 485.

Where police had no specific or articulable basis to believe that prior arrestee was in defendant's vehicle, police lacked reasonable suspicion to stop defendant's vehicle. 106 H. 177, 102 P.3d 1075.

Search and seizure.

Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3.00 fee to enter bay designated a marine life conservation district and nature preserve were not "seized" in violation of the Fourth Amendment to the U.S. Constitution or this section; stopping to pay $3.00 entrance fee at turnstile did not constitute an impermissible seizure. 215 F. Supp. 2d 1098.

Use of flashlight by police officer in scanning interior of automobile lawfully stopped for traffic offense is not per se unreasonable search and seizure. 50 H. 461, 443 P.2d 149.

Scope of pre-incarceration search. 55 H. 361, 520 P.2d 51.

Scope of search incident to lawful arrest; can be no broader than necessary; in construing Hawaii constitution, need not follow U.S. supreme court (U.S. v. Robinson, 94 S CT 467 and Gustafson v. Florida, 94 S CT 488). 55 H. 361, 520 P.2d 51.

Warrantless search and seizure of property in area open to public not unreasonable; in area not open to public unreasonable absent exigent circumstances. 60 H. 197, 587 P.2d 1224.

Elements of legitimate expectation of privacy. 61 H. 117, 596 P.2d 773.

Pre-incarceration search is justified. 61 H. 291, 602 P.2d 933.

Stop and frisk, justified. 63 H. 553, 632 P.2d 1064.

Warrantless search. Exigent circumstances lacking. 63 H. 553, 632 P.2d 1064.

Procedural requirements for seizure of materials in obscenity prosecutions. 63 H. 596, 634 P.2d 80.

Standard for suppression of evidence where seizure violated freedom of speech or expression. 63 H. 596, 634 P.2d 80.

City policy requiring inspection prior to entering concert, of all containers or clothing capable of concealing bottles or cans held unreasonable. 64 H. 17, 635 P.2d 946.

Illegal arrest or seizure of evidence, without more, does not bar prosecution. Exclusion of tainted evidence is appropriate remedy; purchase of allegedly obscene material from "willing sellers" by private citizen under police direction prior to arrest was actually "preconceived seizure" designed to evade warrant procedures; warrantless arrest for promoting pornography and seizure of material cannot be premised on ad hoc determination by police officer that material was obscene. 64 H. 109, 637 P.2d 1095.

Evidence inadequate to support probable cause for issuance of warrant. 64 H. 399, 641 P.2d 1341.

No reasonable expectation of privacy in conversation recorded by participant. 64 H. 659, 649 P.2d 346; 67 H. 197, 682 P.2d 79; 67 H. 307, 686 P.2d 816.

No reasonable expectation of privacy shown. 65 H. 22, 649 P.2d 363; 65 H. 159, 649 P.2d 737.

In order to conduct the more intrusive body searches in nonemergency, noncontact visit situations, prison officials must have reasonable basis to conclude that contraband is being concealed by inmates on their person. 66 H. 21, 656 P.2d 1330.

Based on record, defendant did not abandon bag and therefore warrantless search was unconstitutional. 66 H. 543, 669 P.2d 152.

Any co-inhabitant of commonly held property has right to consent to search of property; no expectation of privacy in property abandoned; abandonment primarily a question of intent. 67 H. 644, 701 P.2d 171.

Reasonable expectation of privacy in trash bags. 67 H. 658, 701 P.2d 1274.

Warrantless seizure of album for ten days to install beeper was unreasonable. 68 H. 213, 708 P.2d 820.

Use of binoculars to observe activities in open view in automobile not unreasonable; warrantless search of handbag in automobile was unreasonable. 68 H. 221, 708 P.2d 825.

Under the facts, warrantless search held not justified by "exigent circumstances" and not "incident to arrest". 68 H. 253, 710 P.2d 1197.

Police must have reasonable basis to believe crime committed to order driver out of car after traffic stop. 68 H. 286, 711 P.2d 1291.

Reasonable expectation of privacy in closed public toilet stall; no probable cause to search stall. 68 H. 404, 716 P.2d 493.

Warrantless search of defendant beyond protective search for weapons was unreasonable, where there was no evidence to indicate defendant had contraband or instrumentalities of the crime. 68 H. 509, 720 P.2d 1012.

Warrantless seizure for thirty minutes was not unreasonable or avoidable where police were informed of criminal activity ten minutes prior to the seizure. 69 H. 132, 736 P.2d 438.

Airport searches, discussed. 69 H. 589, 752 P.2d 102.

Search warrant was valid although informant had no history of reliability because other corroborated information indicated informant was reliable. 70 H. 271, 768 P.2d 1290.

Warrant was considered a general warrant. 70 H. 546, 779 P.2d 1.

Not violated by police drug testing program. 71 H. 568, 799 P.2d 953.

Warrant to search multiple occupancy dwelling was reasonable. 71 H. 638, 802 P.2d 478.

Affidavit which contained misstated and omitted information was insufficient to show probable cause to justify a search warrant. 72 H. 141, 808 P.2d 848.

Warrantless search of contents of wallet after defendant surrendered it for inventory was unreasonable. 72 H. 290, 814 P.2d 914.

Constitutional right was not voluntarily waived by defendant's consent to search car where waiver was predicated on prior illegal search and State failed to meet burden of showing that taint of illegal search had been dissipated or that there was an independent source inducing defendant to waive right. 72 H. 505, 824 P.2d 833.

Although no force was used, officers' show of authority and questioning constituted seizure under Hawaii Constitution. 74 H. 161, 840 P.2d 358.

District court's findings of fact, conclusions of law, and suppression orders affirmed, where, inter alia, defendants had actual, subjective expectations of privacy that society would recognize as objectively reasonable that they would not be objects of covert video surveillance in employee break room, and recorded observations of activities in the break room were not obtained by third party consent. 75 H. 124, 856 P.2d 1265.

Seizure occurs when police approach a person for the express or implied purpose of investigating that person for possible criminal violations and begins to ask for information. 75 H. 558, 867 P.2d 903.

Children in school have legitimate expectations of privacy that are protected by this section and the Fourth Amendment to the U.S. Constitution. 77 H. 435, 887 P.2d 645.

High school principal's search of student's purse was lawfully conducted. 77 H. 435, 887 P.2d 645.

Investigative stop can be justified based on objectively reasonable suspicion of any offense, provided that the offense for which reasonable suspicion exists is related to offense articulated by officer involved. 78 H. 86, 890 P.2d 673.

Where handgun on floor of defendant's truck under corner of driver's seat was observed in plain view, presence of exigent circumstances was not required to justify a warrantless seizure. 78 H. 308, 893 P.2d 159.

Defendants were induced to make inculpatory statements and to consent to search of their hotel room in violation of article I, §§7 and [10] of Hawai‘i constitution. 78 H. 433, 896 P.2d 889.

In order for a consent to search to be valid under this section, the individual consenting must actually possess the authority to do so; detective's search of defendants' house violated this section. 78 H. 433, 896 P.2d 889.

Clear plastic packets not "closed" containers as contents were within plain view of officer conducting search under warrant; defendant thus could not claim any reasonable expectation of privacy in the packets' contents. 80 H. 382, 910 P.2d 695.

Obtaining warrant as precondition to testing suspected cocaine in clear plastic bags unnecessary where defendant could not have reasonable expectation of privacy in clear plastic bags. 80 H. 382, 910 P.2d 695.

Valid search incident to lawful arrest where there was probable cause to make an arrest prior to and independent of search of defendant's pants, search was limited to finding narcotics bindles, and arrest was made immediately after search. 80 H. 419, 910 P.2d 732.

Determination of probable cause for issuance of search warrant warrants de novo review on appeal. 81 H. 113, 913 P.2d 39.

Upon de novo review, based on facts set forth in officer's affidavit, probable cause existed to issue search warrant. 81 H. 113, 913 P.2d 39.

Defendant lacked standing to challenge seizure of search warrant evidence where evidence seizure did not violate defendant's personal rights; defendant was not owner of any of items seized and did not allege any reasonable expectation of privacy in items. 82 H. 474, 923 P.2d 891.

No "seizure" where private individual, acting on own initiative, secured videotape and voluntarily transferred possession to police. 82 H. 474, 923 P.2d 891.

Drug evidence admissible and wrongly suppressed where police intrusion into hotel room pursuant to valid arrest warrant was justified and evidence seizure was permissible under plain view doctrine. 83 H. 13, 924 P.2d 181.

"Totality of the circumstances test" correct test to determine whether private individual's search and seizure of evidentiary items was as a government agent, and subjective motivation of individual irrelevant to this determination. 83 H. 124, 925 P.2d 294.

Circuit court erred in granting defendants' motion to suppress evidence where none of the three rationales for exclusionary rule--judicial integrity, individual privacy, and deterrence--supported suppression of evidence in case. 83 H. 187, 925 P.2d 357.

Provisions of chapter 803, part IV and this section not relevant to question of legality of electronic eavesdropping activities conducted in California. 83 H. 187, 925 P.2d 357.

Warrantless seizure justified where witness' identification of defendant as person who terrorized witness with gun gave officers probable cause to believe defendant committed a crime and officer's observation of defendant sleeping with gun in immediate reach presented sufficient exigent circumstances for officer to board boat and seize gun. 83 H. 229, 925 P.2d 797.

Based on totality of circumstances, officer placed defendant in inherently coercive position by asking "pretexual" questions specifically designed to elicit responses that would either vindicate or implicate defendant; consent to "pat down" was thus not "voluntary and uncoerced". 83 H. 250, 925 P.2d 818.

Officer lacked specific and articulable facts sufficient to warrant a person of reasonable caution in believing that defendant was engaged in criminal activity; officer was thus unjustified in initiating investigative "encounter" at airport with defendant. 83 H. 250, 925 P.2d 818.

Where officer's questions were designed to investigate defendant for drug possession and defendant was expressly made aware of that from the outset, defendant had been effectively seized by the time officer asked "to take a look" at defendant's airline ticket and driver's license. 83 H. 250, 925 P.2d 818.

Where nothing in objective facts available to police at time they obtained search warrant for house suggested defendant's bedroom was separate residential unit completely secured against access by other dwelling occupants, search warrant not overbroad and search of bedroom reasonable. 84 H. 462, 935 P.2d 1007.

Where no exigent circumstances existed, forced entry by police two seconds after knock and announcement was insufficient to give occupants reasonable opportunity to respond. 85 H. 282, 943 P.2d 908.

Defendant not victim of unlawful seizure where, under totality of circumstances, reasonable person would have felt free to terminate encounter by refusing to accompany police and return into home. 86 H. 195, 948 P.2d 1036.

Where defendant voluntarily offered to accompany police to station and walked to and entered van voluntarily, even if there was a "seizure", seizure was with defendant's consent. 86 H. 195, 948 P.2d 1036.

Police may not prolong the detention of individuals subjected to brief, temporary investigative stops, once such stops have failed to substantiate the reasonable suspicion that initially justified them, solely for the purpose of performing a check for outstanding warrants. 91 H. 80, 979 P.2d 1106.

Although lawfully "seized" within the meaning of this section, defendant was not "in custody" at the time defendant responded to officer's question regarding defendant's age; thus officer was not required to give Miranda warnings prior to asking the question and trial court improperly suppressed defendant's answer. 94 H. 207, 10 P.3d 728.

When an officer lawfully "seizes" a person in order to conduct an investigative stop, the officer is not required to inform that person of the person's Miranda rights before posing questions that are reasonably designed to confirm or dispel--as briefly as possible and without any coercive connotation by either word or conduct--the officer's reasonable suspicion that criminal activity is afoot. 94 H. 207, 10 P.3d 728.

When an airline passenger consents to a search of his or her effects at an airport security checkpoint, the scope of the search reasonably extends to those receptacles, the contents of which cannot be identified, contained in luggage. 97 H. 71, 34 P.3d 1.

A mandatory blood test, pursuant to §286-163, absent an arrest, violates neither the Fourth Amendment nor this section, so long as the police have probable cause to believe that the driver has committed one of the enumerated offenses and that the driver's blood contains evidence of intoxication or drug influence, exigent circumstances excuse a warrant, and the test is performed in a reasonable manner. 98 H. 221, 47 P.3d 336.

An officer is not prohibited from requesting a warrant check incident to the issuance of a citation for a traffic violation when the check does not prolong the length of time needed to issue a citation. 98 H. 337, 48 P.3d 584.

Where detective's affidavit in support of search warrant lacked probable cause and warrant was thus unlawfully obtained, firearms that detective found in tool shed and defendant's subsequent inculpatory statement, given in response to detective's questions regarding the firearms, were inadmissible at trial because they constituted evidence derived from the exploitation of an unlawful search warrant, and therefore, were tainted by that prior illegality. 98 H. 387, 49 P.3d 353.

Assuming arguendo that, because drug detection dog jumped into the truck's passenger compartment, this canine screening constituted a "search" within the meaning of either the Fourth Amendment or this article, defendant did not have a reasonable expectation of privacy in the truck (or specifically in the airspace within the cab of the truck); thus, neither the dog's nor police handler's conduct violated defendant's rights. 98 H. 426, 49 P.3d 1227.

In detaining defendant for the purpose of determining if defendant was impaired and if defendant would consent to a search of defendant's vehicle, officer did not exceed the scope of a temporary investigative stop premised upon circumstances that gave rise to a reasonable suspicion that defendant was driving while impaired or that defendant's vehicle might contain illicit substances. 99 H. 370, 56 P.3d 138.

Red and glassy eyes, a criminal record, and imperfect driving, standing alone, were insufficient to establish probable cause to arrest a person for driving under the influence of drugs; as officer did not have probable cause to arrest defendant and did not subject defendant to sustained and coercive questioning, Miranda warnings were not warranted when defendant was questioned about defendant's alcohol consumption. 99 H. 370, 56 P.3d 138.

Based on the totality of the circumstances, pool hall owner's actions in searching and detaining defendant were as a private citizen, not as a government agent; thus, owner's search and/or seizure of defendant was not constrained by this section nor the Fourth Amendment. 100 H. 195, 58 P.3d 1242.

Section 803-37 does not apply to the interior office door of a store; however, as an objectively reasonable expectation of privacy exists at the interior office door of a store, police are required to provide reasonable notification of their presence and authority before making a forced entry; police satisfied this requirement by knocking three times, announcing "police department, search warrant", and waiting fifteen seconds before forcibly entering the locked interior office door of the store. 100 H. 210, 58 P.3d 1257.

Search warrant was not supported by probable cause where credibility and reliability of anonymous tip concerning marijuana growing was not established; thus, trial court erred in denying defendant's motion to suppress items seized in the execution of the warrant. 102 H. 13, 72 P.3d 485.

Use of thermal imager device to detect heat emanating from defendant's apartment constituted an unreasonable warrantless search; thus, information gained should have been excluded in the establishment of probable cause. 102 H. 13, 72 P.3d 485.

Officer's additional observations, considered in concert with the reasonable inferences arising from defendant's screeching of tires, warranted an objectively reasonable suspicion that defendant had, at a minimum, committed the offense of reckless driving of a vehicle, in violation of §291-2; thus, officer's investigative stop was within the parameters of permissible police conduct. 102 H. 228, 74 P.3d 980.

Police may act on an anonymous tip of reckless driving, but only under very narrow circumstances; based on the totality of the circumstances, including the reliability of the tip and the imminence of the harm, an anonymous tip was sufficiently reliable to justify an investigatory stop. 103 H. 451, 83 P.3d 714.

Under this section, a guest of a home dweller is entitled to a right of privacy while in his or her host's home; defendant thus had a reasonable expectation of privacy in defendant's host's garage washroom; police were not justified, under either an "open view" or a "plain view" exception to the warrant requirement, in searching the area behind the washing machine. 104 H. 109, 85 P.3d 634.

Warrant to search premises does not authorize search of identified possessions of visitors present during execution of warrant; defendant had reasonable expectation of privacy in plastic beach bag on floor near defendant. 5 H. App. 29, 677 P.2d 471.

Investigatory stop justified by circumstances. 5 H. App. 127, 681 P.2d 573.

Reasonable for police officers to order defendant to exit automobile based upon totality of circumstances. 7 H. App. 28, 742 P.2d 388.

Suspicionless drug testing of firefighters by urinalysis in conjunction with annual physical examination is not an unreasonable search. 8 H. App. 571, 816 P.2d 306.

Reasonable for police officer to assume that personal property of non-resident of premises being searched under search warrant was property of premises where there was no notice of ownership. 8 H. App. 610, 822 P.2d 23.

Warrantless seizure of defendant at sobriety roadblock was unreasonable where State failed to prove that officer in charge had authority to move roadblock's location due to traffic congestion. 9 H. App. 98, 825 P.2d 1068.

Section 803-37 violates Hawai‘i constitution to the extent that it permits the police to break into the place to be searched if "bars" to their entrance are not immediately opened. 77 H. 461 (App.), 887 P.2d 671.

In situations where defendant was the focus of a narcotics investigation, was seized illegally, had defendant's bag detained for a canine narcotics screening, and had defendant's subsequent movements secured by the police pending completion of the screening, a reasonable person would believe he or she was not free to leave. 78 H. 475 (App.), 896 P.2d 931.

Insofar as indictment related to resisting arrest charge, indictment could not be treated as a "product or fruit" of any illegal seizure or arrest of defendant. 78 H. 475 (App.), 896 P.2d 931.

Seizure violated reasonable seizure requirement in this section because defendant was initially seized without probable cause, without reasonable suspicion, and without defendant's consent. 78 H. 475 (App.), 896 P.2d 931.

Officer's order for defendant to exit vehicle was unlawful; thus, subsequent plain view of, search for, and seizure of incriminating evidence was tainted and should have been suppressed. 80 H. 75 (App.), 905 P.2d 50.

Probable cause existed for issuance of warrant based on officer's affidavit that relied on police investigation as well as on informant's information. 81 H. 29 (App.), 911 P.2d 1101.

Where warrant only authorized search of specific room of business and another subsequently discovered room of business separated by a hallway and other numbered and unnumbered rooms was also searched, other room was not within scope of warrant and constituted illegal search. 82 H. 162 (App.), 920 P.2d 376.

Evidence found in defendant's living room illegally seized where no exigent circumstances or search warrant to enter living room and person consenting to police entering living room did not have "actual authority" to consent. 82 H. 394 (App.), 922 P.2d 1007.

Hawaii constitution does not permit validation of searches pursuant to search warrants that are facially expired when the searches are made. 83 H. 87 (App.), 924 P.2d 581.

Where defendant was seated in driver's seat of parked car, key was in ignition and engine was not running, defendant was "seized" when officer asked defendant for driver's license, vehicle registration card, and vehicle reconstruction permit. 87 H. 487 (App.), 960 P.2d 157.

Where Hawaii county did not require posting of reconstructed vehicle permit decal on vehicle and no evidence that defendant actually operated vehicle, officer's suspicion that defendant operated a reconstructed vehicle without a valid permit was not reasonable; thus, evidence of DUI and no reconstruction permit was illegally obtained through a warrantless seizure. 87 H. 487 (App.), 960 P.2d 157.

Where State established by clear and convincing evidence that contents of defendant's pockets would have been revealed in an inventory search of defendant upon arrival and booking at police station, drug pipe and packet properly admitted under the inevitable discovery exception to the exclusionary rule. 91 H. 111 (App.), 979 P.2d 1137.

Right not violated where defendant did not have a reasonable expectation of privacy on busy public street, defendant took no precautions to insure privacy by screening defendant's presence or defendant's drug dealing activity from public view, and no objectively reasonable expectation of privacy for persons, objects, or activities which were visible to the public and captured by non-intrusive video camera. 92 H. 454 (App.), 992 P.2d 723.

Seizure of motorist justified where report of the hazardous driving matched both the area the motorist was driving in and the make, model, color, and license number of the vehicle being allegedly hazardously driven. 93 H. 337 (App.), 3 P.3d 503.

Although initial seizure was justified, once officers determined that no weapon was involved and no one wanted to make a complaint, and thus dispelled the reasonable suspicion that justified the initial seizure, defendant should have been released; by further detaining defendant and demanding identification, officer subjected defendant to an illegal seizure. 93 H. 502 (App.), 6 P.3d 374.

Where officer made plain to defendant that defendant was the focus of a criminal investigation, demanded to see defendant's hands, and a reasonable person would not have felt free to leave, defendant was seized for purposes of this section; seizure continued throughout ensuing physical seizure, takedown and handcuffing, and continued after the removal of the handcuffs. 93 H. 502 (App.), 6 P.3d 374.

Conduct of officer who had been directing traffic, in walking behind motorist's vehicle, from the passenger's side to the driver's side, after motorist had been stopped for three to five seconds and had failed to follow officer's hand instructions, was not an investigative stop, as reasonable person would not have believed person was not free to leave. 95 H. 270 (App.), 21 P.3d 475.

Defendant had a constitutionally protected expectation of privacy not only in the general premises of the house, but also in the specific area that was defendant's bedroom; defendant's lack of property interest in defendant's parents' house was not a bar to a claim that defendant had a protected privacy interest in that house. 96 H. 472 (App.), 32 P.3d 116.

Exigent circumstances did not exist to justify warrantless police entry into and search of house, where, by securing the house believed to hold their quarry, the police had eliminated the perceived threat posed by a free-roaming, allegedly armed suspect, and by closing off the street, the police were in control of the situation, thus having sufficient time to consider their options, plan and obtain a search warrant. 96 H. 472 (App.), 32 P.3d 116.

Warrantless search of defendant's bedroom in defendant's parents' house unreasonable where mother did not have actual authority to consent to search of son's bedroom; son had, by implicit agreement and in practice, exclusive possession of bedroom, and there was no indication that son gave mother access to room or permission to allow others access. 96 H. 472 (App.), 32 P.3d 116.

Where defendant exhibited an actual, subjective expectation of privacy in defendant's bedroom by keeping door locked at all times, and no other person had the key or access to the room, and as an adult child living with parents is not uncommon in this State, defendant's expectation was one that society was prepared to recognize as objectively "reasonable"; thus, defendant's privacy interests in common areas of parents' house and in defendant's bedroom were constitutionally protected. 96 H. 472 (App.), 32 P.3d 116.

Where neither consent nor exigent circumstances justified warrantless police entry into and search of defendant's bedroom, based on the "adequate and independent state grounds" of this section, police search was unlawful and sawed-off shotgun seized as a result should have been suppressed. 96 H. 472 (App.), 32 P.3d 116.

The federal and state regulatory schemes, which establish security and screening procedures at airports governed by both the Federal Aviation Administration and the state department of transportation, made private security employee's search of passenger's toolbox a governmental search for purposes of the Fourth Amendment and this section. 97 H. 77 (App.), 34 P.3d 7.

Warrantless search of passenger's toolbox at airport by private security company employee was reasonable under the Fourth Amendment and this section. 97 H. 77 (App.), 34 P.3d 7.

Where totality of circumstances clearly showed that store asset protection agent conducted a purely private search of defendant with no governmental involvement, trial court did not err in denying defendant's motion to suppress evidence. 97 H. 247 (App.), 35 P.3d 764.

Right not violated where police officer's search of defendant's fanny pack found by hotel guest and already inventoried by hotel security fell under the lost property inventory exception to the warrant requirement. 101 H. 112 (App.), 63 P.3d 420.

Warrantless seizure of plaintiff's vehicle not unconstitutional where seizure was from a public place and officers had probable cause to believe it was forfeitable contraband. 101 H. 422 (App.), 70 P.3d 648.

Applying the totality of the circumstances test, trial court correctly determined that adult video store clerk was not acting as a "government agent"; clerk was not actively recruited, directed, or paid by the police, and clerk's actions were for a private purpose--to make sure defendant was complying with video store's no-smoking policy and not doing anything that would harm the store. 103 H. 11 (App.), 78 P.3d 1159.

Warrantless seizure of defendant's glass pipe and its contents justified where police had probable cause to arrest defendant after viewing defendant smoking glass pipe in video booth, and exigent circumstances existed as defendant was lawfully observed ingesting an illegal drug and any delay would allow more, if not all, of the drugs to be consumed, and as defendant rented video booth for only half an hour, defendant would likely have finished defendant's "business" long before police could have obtained a warrant. 103 H. 11 (App.), 78 P.3d 1159.

Where defendant took no steps to cover up "glory hole" in adult video preview booth, defendant could not have reasonably expected that defendant's conduct would not be viewed through the glory hole; thus, defendant could not have had a subjective expectation of privacy in the video preview booth that society would recognize as objectively reasonable. 103 H. 11 (App.), 78 P.3d 1159.

Defendant was not subject to a de facto arrest not supported by probable cause where officers' use or display of force was reasonably necessary to protect their personal safety, was in response to defendant's erratic and hostile behavior, and defendant's conduct made it reasonable for the officers to insist that defendant submit to a pat-down search for weapons. 107 H. 144 (App.), 111 P.3d 39.

When police officers encounter someone while lawfully at a residence to execute an arrest warrant, the officers may detain that person and perform a pat-down search for weapons if the officers have a reasonable and articulable basis to suspect that the person may possess a weapon and pose a danger; the officers may compel such person to submit to a pat-down search for weapons even if the officers have no reasonable suspicion that the person is involved in criminal activity. 107 H. 144 (App.), 111 P.3d 39.

Authorization in search warrant to search any personal, rental, or borrowed vehicle that defendant was operating or occupying was not unconstitutionally overbroad, and was sufficiently particularized where authorization was based on probable cause that defendant would be in possession of ice, and would be transporting it in any number of different vehicles in which defendant was either the operator or an occupant. 108 H. 361 (App.), 120 P.3d 260.

Cited: 56 H. 366, 537 P.2d 8.

Mentioned: 53 H. 327, 493 P.2d 306.

Hawaii Legal Reporter Citations:

Electronic surveillance. 81-2 HLR 810715.

Photographs and videotapes. 81-2 HLR 810715.

Case Notes:

Not violated by disqualification of recalled officials from running for vacancy created by recall. 68 H. 263, 711 P.2d 723.

Attorney General Opinions:

Cited in holding that a constitutional amendment is necessary to eliminate the function and scope of the grand jury. Att. Gen. Op. 68-10.

Law Journals and Reviews:

Included Offenses in Hawaii Case Law and the Rights to Trial by Jury: Coherence or Confusion. II HBJ No. 13, at pg. 77.

Fitness to Proceed: Compassion or Prejudice? II HBJ No. 13, at pg. 135.

Administering Justice or Just Administration: The Hawaii Supreme Court and the Intermediate Court of Appeals. 14 UH L. Rev. 271.

State v. Lessary: The Hawaii Supreme Court's Contribution to Double Jeopardy Law. 17 UH L. Rev. 269.

Criminal Procedure Rights Under the Hawaii Constitution Since 1992. 18 UH L. Rev. 683.

State v. Rogan: Racial Discrimination and Limits of the Color-blind Approach. 24 UH L. Rev. 821.

Case Notes:

Indictment.

Where indictment mechanism is employed, it must be through an unprejudiced grand jury. 53 H. 226, 491 P.2d 1089.

Although an accused is guaranteed the right to presentment or indictment by a fair and impartial grand jury, the mere absence of an independent grand jury counsel does not establish that the due process rights of the accused were violated. 63 H. 412, 629 P.2d 1111; 63 H. 633, 633 P.2d 1113.

Not violated by indictment which specifies all necessary elements of crime of burglary but does not allege specific crime intended to be committed. 66 H. 312, 660 P.2d 39.

Count of complaint did not allege all of the essential elements of a §134-6(a) offense, thereby failing to ensure that district court had before it all facts necessary to find probable cause on that charge and violating defendant's rights under this section. 78 H. 66, 890 P.2d 303.

Section 485-21 provides an essential element of offense charged, when a defendant is charged with a criminal violation of Uniform Securities Act; counts of indictment, which cited to §485-21, were insufficient, as counts did not include essential elements of offenses charged. 78 H. 373, 894 P.2d 70.

Grand jury was presented with sufficient information to determine the existence of probable cause that material distributed to minor by defendant was pornographic for minors under §712-1210(7)(a). 82 H. 474, 923 P.2d 891.

Sufficiency of for credit card offenses. 4 H. App. 52, 659 P.2d 83.

Self-incrimination.

See also notes to U.S. Const. Amend. 5.

State may go beyond federal requisites in protecting right under state constitution. 52 H. 527, 480 P.2d 148; 53 H. 254, 492 P.2d 657.

Unless Miranda warnings are given, defendant's statement cannot be used either as evidence in prosecution's case or to impeach defendant's testimony. 53 H. 254, 492 P.2d 657.

Miranda warnings apply only where person is being subjected to custodial interrogation. 58 H. 94, 564 P.2d 1271.

Miranda fails to restrict State's use of voluntary statement not resulting from custodial interrogation. 58 H. 323, 568 P.2d 1200.

Custodial interrogation for Miranda purposes. 59 H. 357, 581 P.2d 752.

Use immunity conferred by statute is not adequate to supplant constitutional privilege. 62 H. 269, 614 P.2d 915.

Compulsion to produce handwriting examples does not constitute unreasonable search and seizure nor does it violate self-incrimination clause. 62 H. 364, 616 P.2d 193.

Default judgment for failure to make an accounting did not violate privilege where no evidence that information sought by accounting would incriminate de