stating that “federal decisions do not ... prevent this court from extending greater protection in interpreting the state constitution where we determine it to be appropriate” (footnote omitted)
How later courts described this case
- stating that “federal decisions do not ... prevent this court from extending greater protection in interpreting the state constitution where we determine it to be appropriate” (footnote omitted)
- recognizing that the courts of this state must “afford defendant’s the minimum protection required by federal interpretations of the Fourteenth Amendment to the Federal Constitution”
- holding that “federal decisions do not ... prevent this court from extending greater protection in interpreting the state constitution where ... appropriate”
- holding the "provision by informer of 'accurate' information on twenty to thirty occasions satisfies 'credibility' prong of Aguilar [v. Texas, 378 U.S. 108 (1964)]"
Written by the judges who cited it.
The opinion
DISSENTING OPINION OF
MIZUHA, J., WITH WHOM ABE, J., JOINS.
Although the opinion of the court recognizes that disclosure of information may be constitutionally mandated in federal decisions in the future, it still clings to the myth that it is needed “to protect those who provide information to the police.”
Defendant who was arrested without a warrant, contends that there was no reasonable ground for his arrest. “An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.” Beck v. Ohio, 379 U.S. 89, 96 .
The state claims the police had “probable cause” established by a policeman’s testimony that he received a tip from an unnamed and unidentified informer. The determination of the legality of defendant’s arrest turns upon the existence and the reliability of the informer.
*149 As stated by Mr. Justice Schaefer dissenting in People v. Durr, 28 Ill. 2d 308, 318 , 192 N.E.2d 379, 384 , unless the identity of the informer is disclosed, “the policeman himself conclusively determines the validity of his own arrest.”
Mr. Justice Traynor condemned the practice in Priestly v. Superior Court, 50 Cal.2d 812, 818 , 330 P.2d 39 , 43:
“If an officer were allowed to establish unimpeachably the lawfulness of a search merely by testifying that he received justifying information from a reliable person whose identity cannot be revealed, he would become the sole judge of what is probable cause to make the search. Such a holding would destroy the exclusionary rule. Only by requiring disclosure and giving the defendant an opportunity to present contrary or impeaching evidence as to the truth of the officer’s testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue.”
The Constitution of the State of Hawaii clearly prohibits unreasonable search and seizure. Our courts are charged with the responsibility of enforcing limitations upon arrest and upon the use of illegally seized evidence.
There is no justification for deference to Federal decisions when the liberty of the individual is at stake. To conclude in this case that the “federal resolution is the proper resolution” is to let the “whole process of arrest revert once more to whispered accusations by people. When we lower the guards as we do today, we risk making the role of the informer — odious in our history— once more supreme.” Draper v. United States, 358 U.S. 307, 324 (Dissenting Opinion of Douglas, J.). We cannot await another generation before the United States Supreme Court decides that a criminal defendant should be accorded the right to cross-examine as to the source of the policeman’s information.
I would, therefore, reverse the judgment and remand the case for a new trial.