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State v. Enos6/20/1986
.2d 149, 151-52 (1968) (emphasis in original).
We have repeatedly upheld the right of an officer making an arrest to take reasonable and appropriate steps to protect himself from possible weapons to which the arrestee may have access. State v. Barrett, 67 Haw. 650, 701 P.2d 1277 (1985); State v. Ortiz, 67 Haw. 181, 683 P.2d 822 (1984); State v. Kaluna, supra. We think it clear that on an arrest for drunken driving, it is per se reasonable for an officer to conduct a pat-down for weapons.
Here, the officer found no weapons. On this record, there was noting to indicate that there were, concealed on the person of appellant, any fruits or instrumentalities of the crime of drunken driving. Given the finding by the court, which was in accord with the testimony, that the officer was without any prior knowledge or suspicion of the existence of contraband, the warrantless search and seizure, beyond the pat-down for weapons, violated appellant's rights under the Constitution of the State of Hawaii. The order denying a suppression of the four cellophane packets was error.
We are not dealing with an inventory search, which involves a different exception to the warrant requirement. Indeed, in the particular case, the arresting officer testified that he was required, by police department regulations, to make the unconstitutional search in question
and was subject to discipline if a alter inventory search turned up the evidence, and thus demonstrated that he had failed to make the search.
Police department regulations cannot set aside our construction of the constitution of this State. The Constitution of the State of Hawaii is not the analog of a looseleaf notebook. This court spoke directly on the present problem in Kaluna, supra. That holding was binding on the police and the court below. We reaffirm that holding and, accordingly, reverse and remand for further proceedings consistent herewith.
Disposition
Reverse and Remand.
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