State v. Bohannon8/21/2003
he prosecution's appeal for the reasons stated in section III A of the majority opinion. I disagree, however, with the majority's conclusion that Officer Kashimoto had reasonable suspicion to stop Bohannon. Thus, for the reasons that follow, I respectfully dissent as to section III B of the majority opinion.
Article I, section 7 of the Hawaii Constitution was designed, inter alia, to safeguard the privacy of individuals against arbitrary, oppressive, and harassing invasions by the police. State v. Trainor, 83 Hawaii 250, 259, 925 P.2d 818, 827 (1996) (citation omitted). To ensure against such invasions, this court has applied an objective reasonable suspicion test in the event of an investigatory automobile stop by the police. See State v. Bolosan, 78 Hawaii 86, 94, 890 P.2d 673, 681 (1995) (" e hold that an investigative stop can be justified based on an objectively reasonable suspicion[.]").
Under this test, an investigating police officer must point to "specific and articulable facts warranting a reasonable belief that criminal activity is afoot." Trainor, 83 Hawaii at 259, 925 P.2d at 827 (citations, ellipsis, and brackets omitted). Whether articulated facts support an objective belief of on-going criminal activity involves evaluating the totality of the circumstances. Kernan v. Tanaka, 75 Haw. 1, 38, 856 P.2d 1207, 1226 (1993). The key in such an analysis is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Id. at 37, 856 P.2d at 1225 (citations omitted).
Under the circumstances as articulated by Officer Kashimoto in this case, I do not believe that Bohannon's actions supported an objectively reasonable belief that criminal activity was afoot. The facts articulated by Officer Kashimoto indicate that, during the early morning hours, at the intersection of Kalakaua Avenue and Ala Wai Boulevard, Bohannon came to an abrupt stop within two feet of Officer Kashimoto's vehicle, resulting in a two-second screeching of tires . The totality of these circumstances is insufficient to warrant an invasion into an individual's personal security. To hold otherwise, would be tantamount to permitting arbitrary investigatory automobile stops that the safeguards in article I, section 7 of the Hawaii Constitution were intended to protect against. Based on the foregoing, I respectfully dissent as to section III B of the majority opinion.
DISSENTING OPINION BY ACOBA, J.
I disagree with the majority's holding that this court has jurisdiction over the appeal, and because I conclude that this court lacks jurisdiction, I do not address the merits of the appeal. See Price v. Obayashi Hawaii Corp., 81 Hawaii 171, 174-75, 914 P.2d 1364, 1367-68 (1996) ("'Jurisdiction is the base requirement for any court considering and resolving an appeal or original action. Without jurisdiction, a court is not in a position to consider the case further.'" (Quoting Wong v. Wong, 79 Hawaii 26, 29, 897 P.2d 953, 956 (1995) (citations omitted))).
I believe a reasoned in pari materia interpretation of Hawaii Rules of Appellate Procedure (HRAP) Rules 2.1(a), 4(b)(1), and 4(b)(3) and Hawaii Rules of Penal Procedure (HRPP) Rule 2 would deem the notation of the court's order on the court calendar by the clerk as the entry of the order and, therefore, tantamount to the filing thereof so as to satisfy HRAP Rule 4(b)(3). Thus, unlike the majority, I am of the opinion that a party may appeal from a final order that is noted on the district court's calendar, and that the time for appeal commences at that point rather than from a separate written judgment that may be filed at any time.
I believe this interpretatio
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