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Spring 2002

Council 2002

President's Message: Hawaii Has the Most Apathetic Voter Turnout... (Maile Bay)
Redistricting Work Done (Jean Aoki)
Support for Voting for Incarcerated Felons (Dorothy Cornell)
How it Looks for Schools in the Legislature (Mary Anne Raywid)
Invitation: Saunders Hall Dedication
One Afternoon at the Legislature (Jean Aoki)
Ice (Marian Wilkins)
Campaign Finance Reform (HCE) (Laure Dillon)
Local League News - Big Island - Kona (Marian Wilkins)
Local League News - Big Island - Hilo (Alberta Lindsay)
Local League News - Honolulu (Pearl Johnson)
Local League News - Kauai (Carol Bain)
Lunch 'n' Learn the Law
Council Meeting May 18

One Afternoon at the Legislature

The Honolulu County Prosecuting Attorney supported the measure. The State Judiciary, the Office of Information Practices, and the League of Women Voters of Hawaii opposed it.

With a Standing Committee Report that included the following paragraph, the Senate Committee on Transportation, Military Affairs and Government Operations passed the bill:

"Your Committee finds that our Supreme Court has skewed the balance between the constitutional rights of the criminal defendant and the right of victims and the public to have relevant evidence presented to judges and juries. These amendments will address this imbalance and provide a more equitable balance between these rights."

SB 2649 proposed amending Article I. Section 7 of the Hawaii Constitution to conform to the United States Constitution. Section 7 now reads: "Searches, Seizures, and Invasion of Privacy. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted."

SB 2649 in its attempt to make Section 7 conform to the 4th Amendment in the US Constitution, would remove the phrase "and invasions of privacy" and also the phrase "or the communications sought to be intercepted."

What difference would it make if we strike out the phrase "and invasions of privacy" from our constitution? You need to look at some case law. Anne Lee, in her book The Hawaii State Constitution - A Reference Guide, cites some cases, a few of which I used in my testimony.

"In State v. Kim (1985), Hawaii's supreme court pointed out that while the U.S. Supreme Court found police have the power to order a driver out of a car when stopped only for a traffic violation, Hawaii's constitution, in contrast, requires officers to have, at a minimum, some reasonable basis of 'specific articulable facts' to believe a crime has been committed before ordering the driver out of the car.

"One of the court's most significant decisions is that of State v. Tanaka 1985). Notwithstanding federal appellate court holdings that, under the Fourth Amendment, society is not prepared to recognize expectations of privacy beyond the parallel provisions in the Federal Bill of Rights. As the court explained:

"People reasonably believe that police will not indiscriminately rummage through their trash bags to discover their personal effects. Business records, bills, correspondence, magazines, tax records, and other telltale refuse can reveal much about a person's activities, associations, and beliefs. If we were to hold otherwise, police could search everyone's trash bags on their property without any reason and thereby learn of their activities, associations, and beliefs. It is exactly this type of overboard governmental intrusion that Article 1, Section 7 of the Hawaii constitution was intended to prevent."

Remember the program called "walk and talk" designed to stop drug smugglers from slipping through unnoticed at the airport? Members of the drug detail would approach airline passengers in a friendly and conversational manner, then ask if they would mind submitting their bags to a search. According to Lee, the court found that in such "staged police-citizen" encounters, the police controlled the interaction although no physical force was used, and that a reasonable person would not believe it possible to ignore the officer's questions and walk away. According to the court, "We cannot allow the police to randomly 'encounter' individuals without any objective bases for suspecting them of misconduct and then place them in a coercive environment in order to develop reasonable suspicion to justify their detention. This investigative technique is based on the proposition that an otherwise innocent person, who comes under police scrutiny for no good reason, is not innocent unless he or she convinces the police that he or she is. Such a procedure is anathema to our constitutional freedom." This practice would be allowed under the Fourth Amendment to the U.S. Constitution.

"Well, if it helps in catching and convicting criminals…", I hear some saying. Remember that for most crimes, police need to identify possible suspects before narrowing it down to the most likely suspect(s). This means that innocent bystanders may very well be included in the initial appraisal of likely suspects. Would you have police use the scatter gun approach- shoot enough people and you're bound to get the guilty one? Search enough homes and you're bound to find one in which some form of illegal activity is present?

I was hurrying to Room 229 to testify against SB 2649 scheduled for a 2:30 hearing when I encountered Kat Brady and Henry Curtis (Life of the Land) who were going back to their office. I explained the bill's intent to narrow Section 7's protection and they turned back to go to the copy center for a copy of the bill. There they met Annelle Amaral who decided to join us in opposing the bill. The hallway outside Rm 229 was crowded with veterans in uniform who were there to testify on two other bills. The conference room was empty, no clerks, no senators. Checking the hearing schedule, I realized that the committee was hearing other bills in another room. I was notified that there were eight more bills to be heard there, and that they were on the eminent domain bill which would limit the use of the power of eminent domain to public purposes only. That promised a long wait. We waited for two hours to find that they still had four more bills to hear, and that they would have decision making after that. Considering that the veterans' bills were ahead of our SB2649, we'd be lucky if the committee got to it by 6:00 p.m. Most of us decided to leave at that point. A couple of days later, I learned that the hearing had been deferred to the next morning.

So the TMG Committee passed it, and the bill went to the Judiciary Committee. The Judiciary Committee did not schedule it for a hearing before the deadline which means it is dead. Dyer at the House, the House Judiciary and Hawaiian Affairs Committee did not schedule a hearing for HB 2316, SB 2649's companion (and identical) bill, so that is dead. Thank goodness some bills die. Our Section 7 rights are safe for the time being.

Jean Aoki

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