Hawaii Const. Article 1 | Constitution of Hawaii — Article 1

Publisher edition notice: This collection preserves the publisher's complete current linked constitution inventory, including its preamble, source notes and annotations. Historical notes are publisher context and are not independently certified as operative provisions.

Section 1

ARTICLE I

BILL OF RIGHTS

Law Journals and Reviews

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

POLITICAL POWER

Section 1. All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people. All government is founded on this authority. [Am Const Con 1978 and election Nov 7, 1978]

Section 2

RIGHTS OF INDIVIDUALS

Section 2. All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities. [Am Const Con 1978 and election Nov 7, 1978]

Case Notes

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

Section 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.

Section 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.

Section 3

EQUALITY OF RIGHTS

Section 3. Equality of rights under the law shall not be denied or abridged by the State on account of sex. The legislature shall have the power to enforce, by appropriate legislation, the provisions of this section. [L 1972, SB No 1408-72 and election Nov 7, 1972; ren Const Con 1978 and election Nov 7, 1978]

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.

Section 4

FREEDOM OF RELIGION, SPEECH, PRESS,

ASSEMBLY AND PETITION

Section 4. No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. [Ren and am Const Con 1978 and election Nov 7, 1978]

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.

The Tie Goes to the Runner: The Need for Clearer and More Precise Criteria Regarding the Public Figure in Defamation Law. 42 UH L. Rev. 72 (2019).

The Militarization of Social Media. 42 UH L. Rev. 169 (2019).

Case Notes

Freedom of press.

Section 5

DUE PROCESS AND EQUAL PROTECTION

Section 5. No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]

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.

The State's retention of any funds in excess of what is deemed necessary and proper to administer the county surcharge on state tax under §248-2.6 does not violate the equal protection clause or due process clause of the United States Constitution or the Hawaii State Constitution. Att. Gen. Op. 15-1.

Where land passes to the State by erosion or sea level rise, this result does not violate private owners' due process rights and does not constitute a taking of private property. Att. Gen. Op. 17-1.

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.

Baehr v. Lewin and the Long Road to Marriage Equality. 33 UH L. Rev. 705 (2011).

A Modest Proposal for Determining Class Member Damages: Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action. 34 UH L. Rev. 1 (2012).

Homeless Property Rights: An Analysis of Homelessness, Honolulu's "Sidewalk Law," and Whether Real Property is a Condition Precedent to the Full Enjoyment of Rights under the U.S. Constitution. 35 UH L. Rev. 197 (2013).

Hamilton v. Lethem: The Parental Right to Discipline One's Child Trumps a Child's Right to Grow Up Free from Harm. 36 UH L. Rev. 347 (2014).

A New Narrative: Native Hawaiian Law. 39 UH L. Rev. 233 (2016).

Hokulani McKeague v. Department of Hawaiian Home Lands: A Case for the Unconstitutionality of Blood Quantum. 42 UH L. Rev. 204 (2019).

PASH and the Evolution of Native Hawaiian Rights Protection. 43 UH L. Rev. 550 (2021).

A Litigator's Approach to Issues Concerning Exercise and Protection of Native Hawaiian Traditional and Customary Rights. 43 UH L. Rev. 592 (2021).

Protecting Traditional and Customary Rights from Cruel and Unusual Punishment: An Argument to Keep Incarcerated Kānaka Maoli Home. 45 UH L. Rev. 157 (2022).

Women's Right to Equality and Reproductive Autonomy: The Impact of Dobbs v. Jackson Women's Health Organization. 45 UH L. Rev. 305 (2023).

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.

Count alleging violations of the state constitution failed to state a claim in a 42 U.S.C. §1983 civil rights lawsuit brought by a former state prisoner and other allegedly similarly-situated plaintiffs primarily seeking damages for "over detention". 678 F. Supp. 2d 1061 (2010).

Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, was overbroad because the ordinance only punished the importing and supplying of consumer fireworks in the city and county of Honolulu and not to the neighbor islands. 796 F. Supp. 2d 1261 (2011).

Plaintiff fireworks company was unlikely to succeed on the merits in alleging that a Honolulu city ordinance, prohibiting the importation of consumer fireworks into Honolulu, was void for vagueness because the prohibitions set forth in the ordinance were clearly defined, the choice of enforcement of the ordinance by the city did not render the law unconstitutionally vague, and the ordinance did not vest the city with "virtually complete discretion" to determine whether the ordinance has been violated. 796 F. Supp. 2d 1261 (2011).

Plaintiff, a graduate student, was likely to succeed on the merits of plaintiff's due process claim where, among other things, amended letter from defendant, the university director of judicial affairs, deprived plaintiff of a meaningful opportunity to respond to allegations against plaintiff and plaintiff did attempt to respond to the allegations or to otherwise participate in the process. 927 F. Supp. 2d 1007 (2013).

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

Section 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.

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

Section 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.

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

Section 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.

HRE rule 412 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.

Where effect of administrative driver's license revocation office's default decision was to deprive petitioner of driver's license, a constitutionally protected property interest, the risk of erroneous deprivation of this interest through the procedures the office used was great, and outweighed the government's interest, including the function of the office and the fiscal and administrative burdens that any additional or substitute procedural requirement would entail, procedural due process right denied. 110 H. 407, 133 P.3d 1199.

As §207(c)(1)(A) of the Hawaiian Homes Commission Act does not provide a "statutory entitlement" to any entity which may be granted a license pursuant to it, plaintiff energy producer failed to establish that plaintiff's exclusive telecommunications service license issued under that section constituted "property" which would entitle plaintiff to due process protection. 110 H. 419, 134 P.3d 585.

Where definition of "incapacitated person" in §560:5-101 (2003), when read as a whole, sufficiently apprised ward of the bases on which the court would review the guardianship petition and any ambiguity in the statute did not render it "substantially incomprehensible", so as to overcome the "presumption of constitutionality", definition was not unconstitutionally vague. 113 H. 236, 151 P.3d 717.

Considerations of due process continue to require that the aggravating factors set forth in §291E-61(b) – all of which remain "attendant circumstances that are intrinsic to and 'enmeshed' in the hierarchy of offenses that §291E-61 as a whole describes" – be alleged in the charging instrument and proven beyond a reasonable doubt at trial. 114 H. 227, 160 P.3d 703.

Landowner was not vested with a property interest--building a particular sized structure or building in a particular location--sufficient to implicate due process protection where landowner's deed related that the Kauai planning commission retained authority to amend the shoreline setback at the time of building permit review; landowner was nevertheless afforded due process by being given a full public hearing and the commission conducted a site inspection of the property before making its ruling. 115 H. 477, 168 P.3d 929.

Defendant's right to have all elements of an offense proven beyond a reasonable doubt was statutorily protected under §701-114 and constitutionally protected under the Hawaii and federal constitutions; as only defendant personally could have waived such fundamental right and such right could not have been waived or stipulated to by defendant's counsel, stipulation by defendant's counsel of the fact that defendant committed defendant's crime within two years of a second or prior conviction of abuse for purposes of the §709-906(7) charge violated defendant's due process rights. 116 H. 3, 169 P.3d 955.

County park camping ordinance and rule was unconstitutionally overbroad where rule stated that certain conduct, according to the definition of camping, constituted camping "regardless of the intent of the participants or the nature of any other activities in which they may also be engaging", thus subjecting "innocent, constitutionally protected behavior as well as conduct which may be validly regulated", to a criminal penalty. 116 H. 146, 172 P.3d 458.

County park camping ordinance and rule was unconstitutionally vague where rule stated that a camping without a permit violation occurs where "it reasonably appears, in light of the circumstances, that the participants in conducting certain listed activities were in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any activities in which they may also be engaging", as this standard was internally inconsistent and incomprehensible to a person of ordinary intelligence and vested virtually complete discretion to the police to determine whether a person had violated the regulation. 116 H. 146, 172 P.3d 458.

A charging instrument, be it an indictment, complaint, or information, must include all "allegations, which if proved, would result in the application of a statute enhancing the penalty of the crime committed"; where the prosecution and the courts would be substantially prejudiced by the retroactive application of this new rule, it was accorded purely prospective application. 117 H. 381, 184 P.3d 133.

A specific unanimity (jury) instruction is not required where (1) the offense is not defined in such a manner as to preclude it from being proved as a continuous offense and (2) the prosecution alleges, adduces evidence of, and argues that the defendant's action constituted a continuous course of conduct; thus, a specific unanimity instruction was not required where prosecution alleged a continuous course of conduct with respect to defendant's kidnapping charge under §707-720, but was required for defendant's attempted first degree sexual assault charge under §707-730. 121 H. 339, 219 P.3d 1126 (2009).

Where jury was not given a specific unanimity instruction with respect to the first degree terroristic threatening offense under §707-716, was never informed which act committed by defendant coincided with the two terroristic threatening counts, and convicted defendant of one count and acquitted defendant of the other, there was a genuine possibility that different jurors concluded that defendant committed different acts; thus, to correct any potential confusion in the case, a specific unanimity jury instruction should have been given to insure that the jury understood its duty to unanimously agree to a particular set of facts. 121 H. 339, 219 P.3d 1126 (2009).

Appeals court did not err in concluding that theft of state property by deception under §708-830(2) constituted a continuing offense where petitioner acted "under one general impulse" and had "but one intention and plan" to unlawfully procure public assistance from the government through a "series of acts" all directed towards the same overarching goal; thus, a specific unanimity instruction for the jury under the Hawaii constitution, article I, §14 and this section was unnecessary. 122 H. 271, 226 P.3d 441 (2010).

Where prosecutor's comments that respondent had benefited from listening to all the other witnesses before testifying plainly conveyed to the jury that respondent's testimony therefore should be discredited were based solely on respondent's presence at trial, they were prohibited generic tailoring comments. 125 H. 271, 260 P.3d 350 (2011).

The constitutional right to discipline is inherent in the right to care, custody, and control of one's children; due process requires the State provide meaningful standards to guide the application of its laws; the appropriate standard for family courts to apply in contested chapter 586 show cause hearings is whether the parent's discipline is reasonably related to the purpose of safeguarding or promoting the welfare of the minor; in applying such a standard, circumstances, including factors such as the nature of the misbehavior, the child's age and size, and nature and propriety of the force used, should also guide the courts in this State. 126 H. 294, 270 P.3d 1024 (2012).

Defendant's right against self-incrimination under article I, §10 and right to due process under this section violated by police practice of inviting an arrestee to make a statement and to give his or her "side of the story" or similar entreaties in a "pre-interview" before Miranda warnings were given; under the circumstances of the case, where the Mirandized statement offered into evidence at trial resulted from the exploitation of this pre-interview practice, the subsequent Miranda warnings given did not remove the "taint" of the practice; trial court's conviction and sentence vacated. 126 H. 510, 273 P.3d 1196 (2012).

Where record did not reflect that the jury was informed of the act that corresponded to each count, and the family court was required to provide the jury with a specific unanimity instruction, and its failure to do so constituted error, because the one-to-one relationship between counts and acts was made clear to the jury, and the jury found defendant guilty on nineteen counts for which nineteen exhibits were presented at trial, there was no genuine possibility that different jurors concluded that the defendant committed different acts; thus, error was harmless beyond a reasonable doubt. 127 H. 20, 276 P.3d 589 (2012).

Court's ruling that evidence of defendant's juvenile proceedings could be admissible violated §571-84(h) and constituted reversible error, where ruling was a reason defendant decided not to testify, infringed on defendant's constitutional right to testify, and there was a reasonable possibility that the court's error might have contributed to defendant's conviction. 127 H. 432, 279 P.3d 1237 (2012).

The Hawaii supreme court had appellate jurisdiction over, and petitioners had a due process right to a hearing and judicial review of the commission on water resource management's (CWRM) interim instream flow standards (IIFS) determination where: (1) the analysis that the CWRM had to undertake in setting IIFS was complex and involved significant and thorough analysis and factfinding, taking into consideration the factors specified in §174C-71(2)(D); and (2) the ramifications of an erroneous IIFS could offend the public trust, and was too important to deprive the parties of due process and judicial review. 128 H. 228, 287 P.3d 129 (2012).

Intermediate court of appeals erred in concluding that petitioner waived petitioner's due process claim relating to the Hawaii paroling authority's (HPA) nondisclosure of adverse materials in petitioner's HPA file, where petitioner would not have any opportunity to raise the issue of HPA's nondisclosure of evidence in any other proceeding if petitioner was not aware of the existence of letters sent between victim's aunt and HPA prior to second hearing until they were filed with respondent State's response to petitioner's petition for post-conviction relief. 129 H. 429, 302 P.3d 697 (2013).

Advisement by the family court did not adequately ascertain whether petitioner understood petitioner's constitutional right to testify or not to testify, as required by the Hawaii supreme court in Tachibana v. State. Moreover, petitioner's need for an interpreter during the trial was a "salient fact" heightening the necessity for the court to insure that petitioner understood the rights petitioner waived. Accordingly, the court did not obtain a valid on-the-record waiver of petitioner's right to testify. 130 H. 83, 306 P.3d 128 (2013).

Circuit court's failure to give a specific unanimity instruction that the jury was required to agree unanimously as to the person against whom defendant used force constituted plain error and there was at least a reasonable possibility that the circuit court's error contributed to defendant's conviction; thus, the error was not harmless beyond a reasonable doubt. 131 H. 19, 313 P.3d 708 (2013).

Plaintiffs were denied the most "elementary and fundamental requirement of due process", notice of the charges against them and an opportunity to voice their objections in a meaningful time and manner before governmental deprivation of a significant liberty interest. Thus, the circuit court clearly erred by finding, among other things, that plaintiffs were generally provided with notice through the union. The circuit court also erred in concluding that plaintiffs received adequate notice for purposes of due process and a meaningful process to challenge the complaints against them. 131 H. 167, 317 P.3d 1 (2013).

The adverse effect of the city's ban on plaintiffs' future employment opportunities was so prevalent and comprehensive that it implicated a liberty interest under this section. 131 H. 167, 317 P.3d 1 (2013).

Indigent parents are guaranteed the right to court-appointed counsel in termination proceedings under the due process clause of this section. Trial courts must appoint counsel for indigent parents upon the granting of a petition to the department of human services for temporary foster custody of their children. 131 H. 419, 319 P.3d 338 (2014).

Circuit court plainly erred in precluding defense expert's testimony with regard to the probable effects of cocaine on the victim at the time of the shooting; the exclusion of the expert's cocaine testimony compromised petitioner's ability to present a complete defense. 131 H. 463, 319 P.3d 382 (2014).

To prevent future misunderstandings over the significance and effect of the planning director's statements and correspondence, it would be beneficial for the planning director to clearly indicate when an appealable decision has been made and how an interested person may challenge the decision. 131 H. 513, 319 P.3d 432 (2014).

Where the district court's ultimate Tachibana colloquy was defective because it incompletely advised defendant of defendant's right to testify and because it did not establish that defendant understood defendant's rights, the district court did not obtain an on-the-record waiver of the right to testify from defendant; defendant demonstrated a constitutional violation of defendant's right to testify, which could not be considered harmless. 132 H. 85, 319 P.3d 1093 (2014).

Where the defendant presented extensive evidence, called four expert witnesses, submitted two scientific studies, and presented multiple lay witnesses, the defendant was not deprived of due process because the defendant had a meaningful opportunity to present arguments and evidence at the contested case hearing. 132 H. 247, 320 P.3d 912 (2014).

Where inmate was transported to the courthouse upon being subpoenaed to testify but refused to testify, circuit court did not violate defendant's right to due process by denying defendant's request to extract the inmate so that the inmate could refuse to testify in front of the jury. 133 H. 253, 327 P.3d 931 (2014).

Where the child support enforcement agency recorded a lien prior to an attorney's lien established for payment of fees in an unrelated action, the circuit court did not violate the attorney's due process rights by granting priority to the child support enforcement agency's lien. 133 H. 311, 328 P.3d 320 (2014).

Where the land use commission (LUC) reverted property to the agricultural land use district, the circuit court erred in concluding that property owners' due process rights were violated because: (1) the property owners had notice and a meaningful opportunity to be heard on the reversion issue; and (2) the LUC's conduct was not arbitrary and unreasonable, given the long history of unfulfilled promises made in connection with the development of the property. 134 H. 187, 339 P.3d 685 (2014).

Where family court's strict enforcement of a three-hour time limit for trial on a petition to determine custody over minor children unduly curtailed mother's ability to present evidence relevant to the proper determination of the children's best interests, the family court abused its discretion in denying mother's motion for additional trial time; the time limit unreasonably deprived mother of a fair opportunity to present mother's case and prevented the family court from being able to determine the best interests of the children. 134 H. 221, 339 P.3d 719 (2014).

Section 707-756, electronic enticement of a child in the first degree, is not rendered unconstitutionally vague by its use of the word "communicates", which is undefined, or by its reference to covered offenses under §846E-1, which includes catch-all clauses and conviction clauses; the catch-all clauses, conviction clauses, and term "communicates" provide citizens of ordinary intelligence a reasonable opportunity to know what conduct is prohibited and provide explicit standards for those who apply the statute to do so in a consistent and nondiscriminatory manner. 134 H. 515, 345 P.3d 181 (2015).

As mandatory minimum sentencing for repeat offenders under §706-606.5 "enhanc[es] the penalty of the crime committed", constitutional requirements of due process and criminal charging require that defendant's predicate prior convictions be alleged in the charging instrument. 136 H. 244, 361 P.3d 471 (2015).

Opponents of university's application for conservation district use permit to construct telescope observatory on mountain summit were denied a meaningful opportunity to be heard, as guaranteed by due process, when board of land and natural resources approved the permit prior to holding the contested case hearing; the purpose of contested case hearing procedural protections designed to ensure that the record is fully developed and subjected to adversarial testing before a decision is made was frustrated where the decisionmaker ruled on the merits before the factual record was even developed. 136 H. 376, 363 P.3d 224 (2015).

Opponents of university's application for conservation district use permit to construct telescope observatory on mountain summit were entitled to contested case hearing before board of land and natural resources as a matter of constitutional due process, given that: (1) the right to exercise Native Hawaiian customs and traditions was explicitly protected by the state constitution; (2) opponents argued that the project would have significant negative effects on their Native Hawaiian cultural practices on the mountain; (3) there was a risk of erroneous deprivation absent the protections provided by a contested case hearing; and (4) there was a lack of undue burden on the government in affording opponents a contested case hearing. 136 H. 376, 363 P.3d 224 (2015).

Because legal parent permitted same-sex partner to share physical custody of child in addition to parenting responsibilities and duties, legal parent did not have a protected privacy interest in excluding partner from child's life under the due process clause of the Fourteenth Amendment to the United States Constitution or the due process and privacy protections under this section and article I, §6, respectively. 139 H. 102, 384 P.3d 878 (2016).

The due process clause of the state constitution provides a defendant with the right to access the crime scene in order to secure the promises that a fair trial affords. 139 H. 207, 386 P.3d 844 (2016).

Intermediate court of appeals did not err in determining that notice to petitioner to execute bail bond on behalf of a defendant in each case was not required by due process or by §804-51. Section 804-51 only requires that notice be issued to the "surety on the bond", and the bonds at issue did not identify petitioner as the surety. 140 H. 123, 398 P.3d 712 (2017).

Under this section, a sentencing court may not rely on a defendant's persistence in maintaining his or her innocence in imposing a sentence. 140 H. 157, 398 P.3d 746 (2017).

Where defendant challenged conviction under §291E-61(a)(1) for the offense of operating a vehicle under the influence of an intoxicant (OVUII), the intermediate court of appeals (ICA) did not err in: (1) holding that the charge was not fatally defective for failing to include the statutory definition of the term "alcohol"; and (2) holding that there was substantial evidence to support defendant's conviction. However, because district court's admonishment of defendant may have violated his constitutional rights to due process and against self-incrimination, the ICA did not err in vacating defendant's conviction. 140 H. 157, 398 P.3d 746 (2017).

Where defendant was restricted in his decision regarding whether and when to testify in criminal trial for attempted sexual assault in the first degree by being ordered to testify first or not at all, the circuit court committed structural error in violation of defendant's constitutional privilege against self-incrimination, right to the effective assistance of counsel, and right to due process of law. 140 H. 205, 398 P.3d 794 (2017).

Where defendant's response to the circuit court during the ultimate Tachibana colloquy indicated that he did not understand his right to testify, and the court did not engage in an exchange that adequately established, on the record, defendant's understanding of that right, the record was insufficient to support a determination that defendant's waiver of the right to testify was knowingly, intelligently, and voluntarily made. 140 H. 421, 402 P.3d 497 (2017).

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.

Where father was not appointed counsel until sixteen days prior to the permanent custody trial of father's two biological sons, applying the case-by-case balancing test of Lassiter--(1) the private interests at stake, (2) the government's interest, and (3) the risk that the failure to appoint counsel will lead to an erroneous decision--father was deprived of father's due process right. 119 H. 28 (App.), 193 P.3d 1228.

Defendant's right to due process not violated where the record in the case did not indicate that juror was incompetent, unable to understand the proceedings, and unable to participate in deliberations. 120 H. 94 (App.), 201 P.3d 607.

If a family court determines that an emergency situation requires an immediate change of custody, then an ex parte order changing custody must include notice of: (1) a post-deprivation hearing, promptly set; and (2) the grounds for this extraordinary measure; a parent deprived of custody in this manner must be given a prompt and meaningful opportunity to address the allegations supporting the immediate change in custody. 120 H. 149 (App.), 202 P.3d 610.

Under the Hawaii constitution, absent express findings of exigent or emergency circumstances, due process requires that a parent be given notice and an opportunity to be heard prior to a change in primary physical or legal custody in family court custody matters; absent evidence that harm is likely to result from the delay necessary to set a hearing, no parent involved in a custody dispute should have his or her child removed by police, without notice of the grounds for removal and an opportunity to be heard on the charges. 120 H. 149 (App.), 202 P.3d 610.

Where mother had a fundamental liberty interest in her right of care, custody, and control of child, and under the Fourteenth Amendment of the U.S. Constitution and this section, the State could not deprive mother of this interest without providing a fair procedure for deprivation, family court's ex parte order awarding father sole custody of child deprived mother of custody of child without the constitutionally required procedural protections. 120 H. 149 (App.), 202 P.3d 610.

Where effect of the default sanction was to divest mother of mother's parental rights--mother's fundamental liberty interest in the care, custody, and control of her child--without affording mother the opportunity to contest the department of human services' permanent custody motion on the merits, family court abused its discretion in imposing the harsh and drastic sanction of default against mother based upon mother's single non-appearance; record did not show wilful or contemptuous behavior on mother's part or that the court considered the availability of less drastic sanctions. 124 H. 468 (App.), 248 P.3d 234 (2011).

Chapter 586 is not unconstitutional, as the right of parents to discipline their children is not unlimited; as parents do not possess a fundamental right to inflict force or harm upon a child that the legislature has deemed to be excessive and harmful to the child's welfare, a rational basis review applied to that chapter; under that review, ex parte TROs under chapter 586 were rationally related to the legitimate state interest in protecting minors from physical and psychological harm. 125 H. 330 (App.), 260 P.3d 1148 (2011).

The process for obtaining an ex parte temporary restraining order under chapter 586 did not fall short of the constitutional requirements of procedural due process where the strength of the State's and petitioner's interests, the "emergency nature of the decision", and the "practical difficulties inherent in convening an immediate evidentiary hearing" mitigated against requiring further procedural protections. 125 H. 330 (App.), 260 P.3d 1148 (2011).

Defendant's right to due process not violated where defendant's waiver of defendant's right to a termination hearing from the drug court program (program) was voluntarily and intelligently undertaken under the totality of the circumstances. Defendant was advised at three different hearings about the legal rights defendant would give up and the consequences of self-termination from the program, signed an admission agreement acknowledging that defendant understood what would happen upon termination from the program, and was warned repeatedly by the trial court regarding the consequences of termination from the program. 129 H. 135 (App.), 295 P.3d 1005 (2013).

There is no infringement on parents' constitutionally protected liberty interest in the right to direct the upbringing of their children when a court, properly interposed between two parents, each equally vested with such rights, resolves an impasse between them regarding the exercise of those rights; in resolving such an impasse, a family court is required to base its determination on the best interests of the child pursuant to §571-46. 133 H. 415 (App.), 329 P.3d 320 (2014).

Charges against defendant for accidents involving bodily injury and driving without a license were insufficient for failing to allege a mens rea and, therefore, were subject to dismissal without prejudice. 134 H. 465 (App.), 342 P.3d 884 (2015).

Retroactive tax assessments on state property leased by taxpayer to operate wind energy business did not violate taxpayer's due process rights, where taxpayer failed to present a basis to determine that the tax burden was "so harsh and oppressive as to transgress the constitutional limitation". The only harm that taxpayer argued resulted from the retroactive assessments was surprise, in that taxpayer had not planned for the taxes. 135 H. 202 (App.), 347 P.3d 632 (2014).

Given that notice of bail forfeiture judgment required under §804-51 was properly provided to the respective surety, appellant insurance company's due process rights were not violated. 139 H. 147 (App.), 384 P.3d 923 (2016).

Equal protection.

Section 6

RIGHT TO PRIVACY

Section 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right. [Add Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions

Bargained for random drug testing program for public school teachers with appropriate procedural protections is constitutional and would not violate either the federal or state Constitution. If a court were to find such a program to violate either the federal or state Constitution, the doctrine of qualified immunity would bar personal liability for any state official; if a court were to impose personal liability, based upon past history and practice, the legislature would fund payment of the claims. Att. Gen. Op. 08-1.

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.

Reconsidering Hawai`i's HIV Statute: The Need to Protect an Individual's Basic Liberties. 28 UH L. Rev. 169.

Physician Assisted Suicide: Expanding the Laboratory to the State of Hawai`i. 29 UH L. Rev. 269.

Prostitution: Protected in Paradise? 30 UH L. Rev. 193.

The Privacy Rights of Public School Students. 32 UH L. Rev. 305 (2010).

Hawai`i's Right to Privacy. 33 UH L. Rev. 669 (2011).

Baehr v. Lewin and the Long Road to Marriage Equality. 33 UH L. Rev. 705 (2011).

2013 Law and Administrative Rules Governing Appeal Procedures of Hawaii's Office of Information Practices. 36 UH L. Rev. 271 (2014).

Up In The Air: The Status & Future of Drone Regulation in Hawai`i. 40 UH L. Rev. 307 (2017).

Case Notes

District court did not abuse its discretion in denying plaintiff's motion for injunctive relief, where the motion did not have a relationship or nexus to the underlying complaint. Plaintiff's motion was based on potential misconduct entirely unrelated to its unfair trade practices claims; plaintiff's complaint alleged multiple claims for unfair and illegal trade practices, due process violations, etc., and did not contain a claim for improper review and use of confidential patient information in violation of the Health Insurance Portability and Accountability Act and the state constitution. 810 F.3d 631 (2015).

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

The review and use of the medical records of the patients at issue must comply with the Health Insurance Portability and Accountability Act of 1996 and this section. 47 F. Supp. 3d 1069 (2014).

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.

Petitioners' health information was "highly personal and intimate" information that was protected by the informational privacy prong of this section; this section protected petitioners' health information produced in discovery from disclosure outside of the underlying litigation. 113 H. 424, 153 P.3d 1109.

In prostitution case, application of §712-1200 (2006) to defendant was not unconstitutional. 114 H. 1, 155 P.3d 1102.

Where petitioner was not a party to plaintiff's dog bite lawsuit against defendant, petitioner's health information in petitioner's medical records at hospital was protected under this section and under the physician-patient privilege of HRE rule 504. 125 H. 31, 251 P.3d 594 (2011).

The respondent judge erred in requiring the petitioner to sign a stipulated qualified protective order (SQPO) because the contested provisions of the SQPO allowed the petitioner's health information to be used for purposes outside the underlying litigation without any showing of a compelling state interest. 132 H. 408, 322 P.3d 948 (2014).

The respondent judge's order requiring the petitioner to sign an authorization that would allow the disclosure of the petitioner's health information outside of the underlying litigation without the petitioner's consent was a violation of the petitioner's constitutional right to informational privacy. 132 H. 408, 322 P.3d 948 (2014).

Where defendant medical center claimed that plaintiff doctors steered patients away from treatment at defendant medical center in violation of §480-2, the parties could not use, or be compelled to produce, confidential patient medical records in litigation where the patient was not a party, where no compelling state interest had been shown. 138 H. 14, 375 P.3d 1252 (2016).

To allow an individual's medical information, even if de-identified, to be used in litigation to which that individual is not a party, would reach beyond what the Hawaii Constitution permits in the absence of a showing of a compelling state interest. 138 H. 14, 375 P.3d 1252 (2016).

Because legal parent permitted same-sex partner to share physical custody of child in addition to parenting responsibilities and duties, legal parent did not have a protected privacy interest in excluding partner from child's life under the due process clause of the Fourteenth Amendment to the United States Constitution or the due process and privacy protections under article I, §5, and this section, respectively. 139 H. 102, 384 P.3d 878 (2016).

Privacy interests of condominium owners could be protected without impairing the defendant's constitutional rights to effective assistance of counsel and a fair trial by imposing appropriate time, place, and manner restrictions on the defendant's right to access the crime scene. 139 H. 207, 386 P.3d 844 (2016).

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.

Sections 707-730(1)(b) and 707-732(1)(b), as applied to private consensual acts between two persons, including minors, did not violate minor's right to privacy as the State has at least a significant interest in regulating the sexual activities of children under the age of fourteen; in addition, there is no fundamental personal privacy right for minors under the age of fourteen to engage in sexual activities with other children under the age of fourteen; this applies to young boys, as well as to young girls, and is not strictly dependent on an age differential between the children. 121 H. 92 (App.), 214 P.3d 1082 (2009).

Section 7

SEARCHES, SEIZURES AND INVASION OF PRIVACY

Section 7. 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. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

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.

Drunk, Driving, and Untouchable: The Implications of State v. Heapy on Reasonable Suspicion in Hawai`i. 31 UH L. Rev. 607 (2009).

State v. Spillner: An Investigatory Traffic Stop Based on Unreasonable Suspicion. 31 UH L. Rev. 631 (2009).

The Privacy Rights of Public School Students. 32 UH L. Rev. 305 (2010).

Hawai`i's Right to Privacy. 33 UH L. Rev. 669 (2011).

Chief Justice Moon's Criminal Past. 33 UH L. Rev. 755 (2011).

State Search and Seizure: The Original Meaning. 38 UH L. Rev. 63 (2016).

Turning Homeowners into Outlaws: How Anti-Home-Sharing Regulations Chip Away at the Foundation of an American Dream. 39 UH L. Rev. 395 (2017).

Up In The Air: The Status & Future of Drone Regulation in Hawai`i. 40 UH L. Rev. 307 (2017).

Case Notes

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

Generally.

Section incorporates the Fourth 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.

Intermediate court of appeals did not err in determining that defendant who refused to submit to alcohol concentration testing following his arrest for operating a vehicle under the influence of an intoxicant failed to establish that his rights were violated under this section or the Fourth and Fourteenth Amendments of the United States Constitution. Defendant failed to prove by a preponderance of the evidence that police officer's stop of his vehicle was unlawful. 139 H. 453, 393 P.3d 1005 (2017).

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.

Where police forcibly entered petitioner's home in pursuit of petitioner's son without a warrant and in the absence of any exigent circumstances, there was no conceivable basis in the law to uphold the entry as valid; thus, trial court's conclusion to the contrary reversed. 121 H. 74, 214 P.3d 613 (2009).

Where police found a General Nutrition Corporation (GNC) membership card inside a backpack at the scene of a crime and contacted GNC to obtain the name associated with the number on the membership card, the appellate court erred in concluding that the defendant lost all constitutional protection in the defendant's name simply because that information had been previously disclosed to a third party; rather, it must be determined whether the defendant held a legitimate expectation that such information would not be shared with others. 133 H. 66, 324 P.3d 876 (2014).

Anticipatory search warrant violated defendant's privacy rights because it failed to identify a triggering condition. In light of the privacy protections contained in this section, an anticipatory search warrant must, on its face, identify the triggering condition to be valid. 139 H. 486, 394 P.3d 716 (2017).

Where officer conducted aerial surveillance of the area surrounding defendant's house, resulting in the issuance and execution of warrants to search for marijuana plants, related paraphernalia, and other evidence of narcotics transactions at defendant's residence, the circuit court erred in concluding that defendant did not have a reasonable expectation of privacy from aerial surveillance in the area surrounding his house. 138 H. 124 (App.), 377 P.3d 65 (2016).

Search and seizure.

Plaintiffs challenging city and county of Honolulu's practice of charging nonresidents a $3 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 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.

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.

Where, solely on the ground that defendant turned off the road to avoid the sobriety checkpoint, officer did not possess specific and articulable facts before the stop giving rise to a "reasonable suspicion" that defendant was at the time operating a vehicle while intoxicated, stop of defendant's vehicle violated this section. 113 H. 283, 151 P.3d 764.

Where vice-officer's drug investigation constituted a seizure separate and distinct from the traffic investigation stop inasmuch as it was not "reasonably related in scope to the circumstances which justified the interference in the first place", and the prosecution failed to adduce specific and articulable facts to reasonably warrant the intrusion, the drug investigation was unsupported by reasonable suspicion and constituted an unconstitutional seizure; thus, all the evidence recovered as a result had to be suppressed as fruit of the poisonous tree. 121 H. 261, 218 P.3d 749 (2009).

Searches of petitioner's vehicle were valid under the Hawaii constitution, notwithstanding that they were lawful under the U.S. Constitution, where petitioner's conduct of driving onto the Pearl Harbor Naval Base demonstrated that petitioner consented to a search of petitioner's person and property under petitioner's control. 125 H. 52, 252 P.3d 1229 (2011).

Where evidence sought to be admitted in state court is the product of acts that occurred on federal property or in another state, by Hawaii law enforcement officers or officers of another jurisdiction, such evidence can only be admitted in a state prosecution if obtained in a manner consistent with the Hawaii constitution and applicable case law. 125 H. 52, 252 P.3d 1229 (2011).

Where evidence sought to be admitted in state court is the product of acts that occurred on federal property or in another state, by Hawaii law enforcement officers or officers of another jurisdiction, due consideration must be given to the Hawaii constitution and applicable case law. 125 H. 382, 262 P.3d 1006 (2011).

Where petitioner's conduct of driving onto the Pearl Harbor Naval Base demonstrated that petitioner consented to a search of petitioner's person and property under petitioner's control, searches of petitioner's vehicle were valid under the Hawaii constitution, notwithstanding that they were lawful under the U.S. Constitution. 125 H. 382, 262 P.3d 1006 (2011).

Officer did not have reasonable suspicion to seize defendant where officer did not have evidence that defendant, rather than other members of defendant's group, had committed or was about to commit a crime; officer did not observe defendant drinking, arguing, fighting or making unreasonable amounts of noise; thus, appeals court erred in affirming the district court's judgment. 126 H. 68, 266 P.3d 1122 (2011).

Where defendant was seized without reasonable suspicion when officer told defendant to exit the vehicle, and continued when officer subsequently chased defendant, officer's stop was a single illegal seizure; thus, officer's continuing attempt to improperly seize defendant placed officer in the position from which officer could observe the beer bottles in defendant's car and was thus evidence obtained as a result of an illegal seizure. 126 H. 68, 266 P.3d 1122 (2011).

Where officer did not have reasonable suspicion to stop defendant when officer told defendant to exit car, and after officer chased defendant and subsequently discovered probable cause to arrest defendant when officer observed the beer bottles in defendant's car, the evidence obtained after the initial stop was the fruit of the poisonous tree as it was discovered by exploiting the officer's prior illegal seizure. 126 H. 68, 266 P.3d 1122 (2011).

Circuit court properly suppressed evidence obtained by the State during unlawful search of defendant where State failed to present clear and convincing evidence that the plastic methamphetamine packet obtained in violation of this section would inevitably have been discovered by lawful means during an inventory search; thus, evidence was not admissible under the inevitable discovery exception to Hawaii's exclusionary rule. 128 H. 200, 286 P.3d 809 (2012).

The evidence obtained pursuant to the search warrant should not have been suppressed, where the clerical error (misdating) by the issuing judge did not render the search warrant invalid, and suppressing evidence seized pursuant to the warrant would not further the purposes of the exclusionary rule where the warrant was supported by probable cause, the evidence demonstrated the actual date of issuance, and the warrant was executed within the time frame specified in HRPP rule 41. 131 H. 379, 319 P.3d 298 (2013).

Based on the state constitution and statutes establishing a motorist's implied consent to a blood alcohol concentration test in cases of suspected intoxicated driving, a person may refuse consent to submit to a blood alcohol concentration test and the State must honor that refusal. Therefore, in order to legitimize submission to a warrantless blood alcohol concentration test under the consent exception, consent may not be predetermined by statute, but rather it must be concluded that, under the totality of the circumstances, consent was in fact freely and voluntarily given. 137 H. 330, 372 P.3d 1065 (2015).

Defendant's submission to a blood alcohol concentration test during traffic stop was not based on voluntary consent, where defendant was informed that, pursuant to statutes establishing a motorist's implied consent to a blood alcohol concentration test in cases of suspected intoxicated driving, defendant's refusal to submit to the test would constitute the commission of a crime for which the defendant would be subject to arrest, prosecution, and criminal sanctions. 137 H. 330, 372 P.3d 1065 (2015).

Where canine screen was conducted on defendant's vehicle, alerting police officers to the presence of illegal drugs within the vehicle, the intermediate court of appeals erred in affirming the circuit court's denial of defendant's motion to suppress because the canine screen that resulted in defendant's arrest was not reasonably related in scope to the traffic stop, and the police officers had no independent basis for reasonable suspicion to indicate that criminal activity was afoot. 138 H. 173, 378 P.3d 889 (2016).

Where defendant was convicted of attempted second degree murder of his wife following admission at trial of hammer and clothing seized from defendant's garage and a trash can within defendant's garage, intermediate court of appeals erred in vacating defendant's conviction because: (1) there was no "search" under the Fourth Amendment of the United States Constitution ("Fourth Amendment") because defendant did not have a reasonable expectation of privacy in his garage; (2) the hammer was in "plain view", inadvertently discovered, and subject to probable cause that the hammer was evidence of a crime; (3) the clothing was "inevitably discovered" as part of the search of defendant's garage; and (4) defendant's garage cannot be said to have "automatic constitutional protection" under article I, §7 of the state constitution and the Fourth Amendment because of the nature of the place involved. 138 H. 321, 382 P.3d 133 (2016).

Anticipatory search warrants are valid under the state constitution when supported by probable cause because they are consistent with the requirements of this section and they incentivize police officers to obtain warrants prior to conducting searches. 139 H. 486, 394 P.3d 716 (2017).

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.

Under this section, and contrary to the United States Supreme Court's holding in New York v. Harris, a statement taken at the police station after an unlawful arrest in the suspect's home remains subject to suppression as the "fruit of the poisonous tree", even though the police had probable cause to arrest all along. 114 H. 271 (App.), 160 P.3d 1258.

Where defendant removed defendant's fanny pack from waist and attempted to discard it four different times, defendant did not exhibit a subjective expectation of privacy in the fanny pack; even assuming defendant did, defendant's expectation of privacy was not objectively reasonable where defendant failed to establish that defendant had a privacy interest in the places defendant attempted to throw the fanny pack; thus, where defendant voluntarily threw the fanny pack onto a building roof top, defendant abandoned defendant's expectation of privacy. 116 H. 29 (App.), 169 P.3d 981.

Where defendant spontaneously denied ownership of nylon bag in response to a request to sign a consent to search form, rather than in response to police interrogation, defendant's unequivocal disclaimer of ownership showed defendant's intent to abandon the bag, thus relinquishing any expectation of privacy defendant had in the contents of the bag; thus, warrantless search of the bag by police did not violate this section. 119 H. 15 (App.), 193 P.3d 1215.

Where police consent form stated that search of defendant's automobile and its contents was expressly confined to evidence of "firearms, ammunition", and officer acknowledged that the wallet was lying closed on the seat and that officer searched the wallet for ammunition but that officer was not nervous because officer could not "feel anything", officer's observations did not reasonably suggest the presence of ammunition in the wallet; thus, the continued search of the wallet that uncovered another person's license was objectively unreasonable and exceeded the scope of defendant's consent. 121 H. 533 (App.), 221 P.3d 511 (2009).

Where officer turned defendant's pockets inside out during a pat down search incident to arrest, the search was not limited in scope to what was "reasonably necessary to discover the fruits or instrumentalities of the crime for which defendant was arrested, to protect the officer from attack, or to prevent the offender from escaping"; thus, officer's actions violated this section. 122 H. 229 (App.), 225 P.3d 671 (2010).

The misdating of a search warrant did not require suppression of the search warrant evidence where, under the circumstances of the case, the government agent obtained a search warrant supported by probable cause, the only basis for challenging the warrant was it being misdated by the issuing judge, and the actual date of issuance could be established by irrefutable evidence. 128 H. 328 (App.), 289 P.3d 964 (2012).

Where police officers responding to a single dropped 911 call found defendant's residence in a state of "disarray", observed a firearm through an open window but no one near the firearm, and were informed that the 911 call might have originated from a person with prostate cancer, no exigency existed to justify the officers' warrantless entry into and search of defendant's residence without any indication of a person being in duress or in need of immediate police assistance, as the facts did not indicate that the officers were prevented from obtaining a warrant or that the situation required immediate police action. 135 H. 299 (App.), 349 P.3d 406 (2015).

Where prosecution failed to establish in the record that police officers were justified to act without a warrant for reasons beyond the risk of blood alcohol dissipation over time, district court erred in holding that the totality of the circumstances supported a finding that exigent circumstances existed to justify the warrantless extraction of defendant's blood sample. 139 H. 203 (App.), 386 P.3d 487 (2016).

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

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

Section 8

RIGHTS OF CITIZENS

Section 8. No citizen shall be disfranchised, or deprived of any of the rights or privileges secured to other citizens, unless by the law of the land. [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes

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

Section 9

ENLISTMENT; SEGREGATION

Section 9. No citizen shall be denied enlistment in any military organization of this State nor be segregated therein because of race, religious principles or ancestry. [Ren and am Const Con 1978 and election Nov 7, 1978]

Section 10

INDICTMENT; PRELIMINARY HEARING; INFORMATION;

DOUBLE JEOPARDY; SELF-INCRIMINATION

Section 10. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury or upon a finding of probable cause after a preliminary hearing held as provided by law or upon information in writing signed by a legal prosecuting officer under conditions and in accordance with procedures that the legislature may provide, except in cases arising in the armed forces when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy; nor shall any person be compelled in any criminal case to be a witness against oneself. [Ren and am Const Con 1978 and election Nov 7, 1978; am HB 150 (1981) and election Nov 2, 1982; am SB 2851 (2004) and election Nov 2, 2004]

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.

How to Transfer Venue When You Only Have One: The Problem of High Profile Criminal Jury Trials in American Samoa. 29 UH L. Rev. 325.

Case Notes

Former jeopardy.

Section 11

GRAND JURY COUNSEL

Section 11. Whenever a grand jury is impaneled, there shall be an independent counsel appointed as provided by law to advise the members of the grand jury regarding matters brought before it. Independent counsel shall be selected from among those persons licensed to practice law by the supreme court of the State and shall not be a public employee. The term and compensation for independent counsel shall be as provided by law. [Add Const Con 1978 and election Nov 7, 1978]

Cross References

Statutory provisions, see §§612-51 to 60.

Case Notes

Section is not self-executing, and it required a subsequent implementing legislation. 63 H. 412, 629 P.2d 1111; 63 H. 488, 630 P.2d 619; 63 H. 633, 633 P.2d 1113; 63 H. 640, 633 P.2d 545; 65 H. 22, 649 P.2d 363.

Failure to appoint grand jury counsel does not require dismissal of indictment. 63 H. 488, 630 P.2d 619.

Section did not create substantive right for accused. 63 H. 640, 633 P.2d 545.

Grand jury counsel need not be physically present throughout proceeding. 64 H. 197, 638 P.2d 309.

Grand jury counsel created for benefit of grand jury. Not a substantive right of criminal defendant. 64 H. 427, 642 P.2d 534.

Section 12

BAIL; EXCESSIVE PUNISHMENT

Section 12. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. The court may dispense with bail if reasonably satisfied that the defendant or witness will appear when directed, except for a defendant charged with an offense punishable by life imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]

Note

A proposal of the 1978 Constitutional Convention deleted the former section 12, which read: "No person shall be disqualified to serve as a juror because of sex." This deletion appears to be one of the unspecified changes submitted for ratification under Question 34. On whether any of the changes submitted under Question 34 was in fact approved by the electorate, see Kahalekai v. Doi, 60 H. 324, 590 P.2d 543, excerpted in the note preceding the Preamble to the Constitution.

Law Journals and Reviews

State v. Kumukau: A Case for the Application of Eighth Amendment Proportionality Analysis. 13 UH L. Rev. 577.

Risky Business: Assessing Dangerousness in Hawai`i. 24 UH L. Rev. 63.

Protecting Traditional and Customary Rights from Cruel and Unusual Punishment: An Argument to Keep Incarcerated Kānaka Maoli Home. 45 UH L. Rev. 157 (2022).

Case Notes

Bail.

Section also protects persons from unreasonable or arbitrary denial of bail. 64 H. 527, 644 P.2d 968.

Judicial discretion provided for in section applies only during pre-conviction stage. 66 H. 82, 657 P.2d 464.

Trial court abused its discretion by not tailoring bail to defendant's individual circumstances, pending appeal of defendant's conviction, where: (1) bail was initially set at $200 when defendant was facing the possibility of one year in jail, but trial court increased bail amount to $2,000 cash only after ultimately sentencing defendant to thirty days' imprisonment; (2) defendant was nineteen years of age and determined by trial court to be indigent; (3) trial court raised defendant's bail simply because defendant was a recent arrival to Hawaii; (4) the increase in bail was directly contradicted by trial court's comments that treatment for anger management, substance abuse, or mental health was not appropriate for defendant; (5) trial court apparently increased bail amount based on defendant's father's ability to pay; and (6) there was evidence on the record that trial court improperly used the maximum amount of the fine applicable to defendant to determine the amount of bail. 136 H. 471, 363 P.3d 319 (2015).

Cited: 56 H. 447, 539 P.2d 1197.

Cruel and unusual punishment.

Section 13

TRIAL BY JURY, CIVIL CASES

Section 13. In suits at common law where the value in controversy shall exceed five thousand dollars, the right of trial by jury shall be preserved. The legislature may provide for a verdict by not less than three-fourths of the members of the jury. [Ren and am Const Con 1978 and election Nov 7, 1978; am SB 107 (1987) and election Nov 8, 1988]

Attorney General Opinions

The jury referred to is a jury of twelve. Att. Gen. Op. 68-10.

Constitutional amendment must be made to this section before a jury of less than twelve persons may be used for civil matters when parties do not stipulate to a smaller jury panel. Att. Gen. Op. 97-2.

Law Journals and Reviews

Hawai‘i 2000 Report Regarding Lawyers' Opinion Letters in Mortgage Loan Transactions. 22 UH L. Rev. 347.

Blast It All: Allen Charges and the Dangers of Playing With Dynamite. 32 UH L. Rev. 323 (2010).

Case Notes

Section does not prohibit use of six-member jury by federal district court in diversity personal injury action. 487 F.2d 957.

Language of U.S. Constitution Seventh Amendment preserved in order to preserve also the judicial interpretation. 50 H. 528, 445 P.2d 376.

Right under the procedural rules considered. 50 H. 528, 445 P.2d 376.

Noncompliance with statute and court rules regulating manner of exercising right of jury trial constitutes waiver of right. 53 H. 372, 493 P.2d 1032.

Although court may set aside jury verdict, respect for the jury's assessment of the evidence is mandated. 57 H. 378, 557 P.2d 788.

Question of whether right of jury trial applies to summary possession proceeding raised but not decided. 58 H. 276, 567 P.2d 1239.

Right of jury trial applies to actions involving dower claims. 61 H. 236, 602 P.2d 521.

Appellant had right to jury trial on issue of damages in action arising out of breach of lease agreement where claim was in excess of jurisdictional limit. 72 H. 373, 818 P.2d 1177.

A statutory cause of action, such as a suit under §92E-11(c), is a "suit at common law" under the Hawai‘i constitution. 76 H. 101, 869 P.2d 1320.

Sanctions awarded pursuant to rule 26 of Hawai‘i arbitration rules did not violate due process or this section. 76 H. 494, 880 P.2d 169.

Apart from the past or present terms of the relevant statutes, as between the common-law practice of England, and its analogue developed under this jurisdiction, the latter controls for purposes of this section. 91 H. 81, 979 P.2d 1107.

Based on the established common law convention of this jurisdiction at the time of adoption of the state constitution, as a general matter, a right to jury trial exists in state eminent domain proceedings. 91 H. 81, 979 P.2d 1107.

Condemnation proceedings constitute "suits at common law" for purposes of this section. 91 H. 81, 979 P.2d 1107.

The "substance" of the jury trial right existing in 1959 does not include the jury determination of blight of summons damages; thus, no right to a jury determination of blight of summons damages exists under this section. 91 H. 81, 979 P.2d 1107.

Employer was entitled to a jury trial, under this section, with respect to employees' allegation of sexual discrimination and retaliation, as §368-17(a) empowered the Hawaii civil rights commission to award legal forms of relief, and, in proceedings before the commission, the employees and executive director claimed legal relief in the form of monetary damages of $400,000 for each employee. 101 H. 438, 71 P.3d 389.

Where third party leasing agents were not parties to lease agreement between landlord and tenant, express waiver of right to jury trial in agreement did not apply to those third parties. 85 H. 300 (App.), 944 P.2d 97.

By entering an order of default against defendant on the issue of liability in an automobile accident case because defendant refused to make an offer of monetary settlement, trial court deprived defendant not only of defendant's right to a trial de novo to appeal the arbitration award, but also of defendant's right under this section to have the liability issue determined by a jury. 99 H. 432 (App.), 56 P.3d 734.

Defendants were not denied their right to a jury trial by virtue of the trial court's imposing an unjust enrichment award against them; because plaintiffs' damages were not ascertainable or remediable by reference to the contractual remedies provided for, equitable remedies were appropriate; thus, trial court did not abuse its discretion by considering the jury's verdict to be only advisory or by imposing an equitable remedy. 116 H. 42 (App.), 169 P.3d 994.

A fundamental constitutional right to a jury trial exists when a person is faced with substantial legal damages in a statutory discrimination action; where there was no reasoned basis for concluding that a person has a fundamental constitutional right if the Hawaii civil rights commission awards such damages, but no fundamental constitutional right if a court awards such damages, landlord was entitled to a jury trial with respect to tenant's demand for substantial compensatory and punitive damages. 128 H. 159 (App.), 284 P.3d 932 (2012).

Although reasonable conditions may be placed upon the fundamental right to a jury trial in civil cases, including rules and procedures affecting its exercise, where, under the circumstances of the case, the Hawaii civil rights commission (HCRC) executive director's opposition to removal to court and declaration that landlord's procedural rights had been waived made the right "practically unavailable" to landlord because there was no method to remove the case absent the executive director doing so, landlord did not waive landlord's right to a jury trial during the HCRC proceedings. 128 H. 159 (App.), 284 P.3d 932 (2012).

Section 14

RIGHTS OF ACCUSED

Section 14. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused, provided that the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim's physician, psychologist, counselor or licensed mental health professional; to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the accused's defense. Juries, where the crime charged is serious, shall consist of twelve persons. The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978; am SB 2846 (2004) and election Nov 2, 2004]

Cross References

Jury of the "district", see §806-17.

Attorney General Opinions

Constitutional amendment eliminating jury trial for serious criminal cases will not be consistent with the due process clause of the Fourteenth Amendment. Att. Gen. Op. 68-10.

The jury referred to is a jury of twelve. Att. Gen. Op. 68-10.

Last sentence took effect upon ratification of proposal by voters on election day and not upon certification of result by lieutenant governor. Att. Gen. Op. 68-31.

Proposed legislation did not conflict with mandates of this section with regard to permitting a jury of six persons in cases involving "non-serious crimes". Att. Gen. Op. 97-2.

Law Journals and Reviews

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

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.

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

State v. Smith: The Standard of Effectiveness of Counsel in Hawaii Following Strickland v. Washington. 9 UH L. Rev. 371.

State v. Furutani: Hawai`i's Protection of a Defendant's Right to a Fair Trial--Verdict Impeachment Made Easy. 17 UH L. Rev. 307.

State v. Lindsey: "Petty" Offenses and the Right to Jury Trial under the Hawai`i Constitution. 17 UH L. Rev. 331.

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

State v. Sinagoga: The Collateral Use of Uncounseled Misdemeanor Convictions in Hawai`i. 19 UH L. Rev. 813.

Blast It All: Allen Charges and the Dangers of Playing With Dynamite. 32 UH L. Rev. 323 (2010).

State v. Fields: Should a Declarant's Professed Memory Loss at Trial Satisfy the "Unavailability" Requirement Under Hawaii's Confrontation Clause? 34 UH L. Rev. 329 (2012).

State Search and Seizure: The Original Meaning. 38 UH L. Rev. 63 (2016).

"Completely Instructing the Jury on the Law": Lesser-Included Offenses in Hawai`i. 40 UH L. Rev. 271 (2017).

Ex Parte Communications Between Sentencing Judges and Probation Officers: A Need for Full Disclosure. 44 UH L. Rev. 290 (2022).

Case Notes

Generally.

Section modeled after the Sixth Amendment of the federal constitution and was intended to incorporate it and to give the State the benefit of federal decisions construing the same language. 47 H. 361, 385, 389 P.2d 439.

Compulsory process.

Defendant only afforded right to compel attendance and testimony of witnesses who can give relevant and beneficial testimony for defense. 64 H. 217, 638 P.2d 324; 67 H. 59, 677 P.2d 465.

Evidence did not show that testimony would have been relevant and beneficial to defense. 64 H. 217, 638 P.2d 324.

Violated by prohibition of witnesses' description testimony, though their identification testimony suppressed. 67 H. 123, 680 P.2d 253.

Defendant's right to testify violated where trial court failed to establish on the record that defendant's decision not to testify was made knowingly and voluntarily. 91 H. 275, 982 P.2d 904.

The Tachibana colloquy to advise a defendant that he or she has a right not to testify is required only in cases in which the defendant does not testify; it is not required in a situation where the defendant has decided to testify. 94 H. 292, 12 P.3d 1233.

To minimize the scope of any post-conviction claim by a testifying defendant that he or she was not aware of his or her right to testify, trial court must give prior-to-start-of-trial advisement informing defendant of his or her right to testify or not to testify, and that if defendant has not testified by the end of trial, the court will briefly question defendant to ensure that the decision not to testify was defendant's own decision. 94 H. 292, 12 P.3d 1233.

Where witness appeared, exercised witness' right to remain silent, and defendant failed to offer proof beyond conjecture that witness' testimony would be helpful to defendant, defendant's right not violated. 100 H. 210, 58 P.3d 1257.

Where prosecutor discussed statements by potential members of the jury elicited during voir dire that prosecutor did not offer in evidence, prosecutor impermissibly commented on matters outside the evidence. 125 H. 271, 260 P.3d 350 (2011).

Where inmate was transported to the courthouse upon being subpoenaed to testify but refused to testify, circuit court did not violate defendant's right to compulsory process by denying defendant's request to extract the inmate so that the inmate could refuse to testify in front of the jury. 133 H. 253, 327 P.3d 931 (2014).

Not violated by trial court's refusal to allow further examination of witness. 5 H. App. 127, 681 P.2d 573.

Trial court's failure to obtain on-the-record waivers from co-defendants of their right to testify was not harmless beyond a reasonable doubt where, if co-defendants' testimony had been added to version of events, jury's decision may have been different. 92 H. 148 (App.), 988 P.2d 667.

Where trial court violated defendant's right to testify by failing to advise defendant of that right and obtain a waiver on the record, and it could not be said beyond a reasonable doubt that if defendant's testimony had been added to the eyewitness' version of the incident, the verdict would not have been different, trial court's error not harmless beyond a reasonable doubt. 93 H. 513 (App.), 6 P.3d 385.

As right to testify is personal to defendant, to be relinquished only by defendant, court erred in failing to obtain waiver of right directly from defendant; defense counsel's remark that "he has elected not to testify" did not constitute a voluntary and knowing waiver by defendant of that right. 94 H. 271 (App.), 12 P.3d 371.

Where decisive issue in case was credibility, and there was extensive contradiction between State's witnesses and defendant's witness, a reasonable possibility existed that violation of defendant's right to testify contributed to defendant's conviction; court's error was thus not harmless beyond a reasonable doubt and defendant's conviction and sentence had to be vacated. 94 H. 271 (App.), 12 P.3d 371.

Failure to advise defendant who testified that defendant had a right not to testify during trial was harmless error, rather than plain error. 94 H. 309 (App.), 12 P.3d 1250.

Where the prosecutor's remarks during closing argument constituted a "generic accusation" that defendant tailored defendant's testimony based solely on defendant's presence at trial, and the evidence against defendant was not overwhelming, and as a result, the pivotal issue in the case was the credibility of the witnesses, defendant's rights under this section were violated as it could not be concluded that the prosecutor's conduct did not contribute to defendant's conviction. 123 H. 284 (App.), 231 P.3d 1001 (2010).

Confrontation of witnesses.

Section 15

HABEAS CORPUS AND SUSPENSION OF LAWS

Section 15. The privilege of the writ of habeas corpus shall not be suspended unless, when in cases of rebellion or invasion, the public safety may require it.

The power of suspending the privilege of the writ of habeas corpus, and the laws or the execution thereof, shall never be exercised except by the legislature, or by authority derived from it to be exercised in such particular cases only as the legislature shall expressly prescribe. [Ren and am Const Con 1978 and election Nov 7, 1978]

Section 16

SUPREMACY OF CIVIL POWER

Section 16. The military shall be held in strict subordination to the civil power. [Ren Const Con 1978 and election Nov 7, 1978]

Section 17

RIGHT TO BEAR ARMS

Section 17. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes

Right to bear arms may be regulated by the State in a reasonable manner. 82 H. 143, 920 P.2d 357.

Section 18

QUARTERING OF SOLDIERS

Section 18. No soldier or member of the militia shall, in time of peace, be quartered in any house, without the consent of the owner or occupant, nor in time of war, except in a manner provided by law. [Ren and am Const Con 1978 and election Nov 7, 1978]

Section 19

IMPRISONMENT FOR DEBT

Section 19. There shall be no imprisonment for debt. [Ren Const Con 1978 and election Nov 7, 1978]

Section 20

EMINENT DOMAIN

Section 20. Private property shall not be taken or damaged for public use without just compensation. [Am Const Con 1968 and election Nov 5, 1968; ren Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions

Section 486H-10 prohibiting manufacturers and jobbers of petroleum products from operating a retail service station for retail sale of petroleum products did not violate eminent domain clause of Hawaii constitution. Att. Gen. Op. 95-4.

Law Journals and Reviews

The Amended Just Compensation Provision of the Hawaii Constitution: A New Basis for Indemnification of the Condemnee. 6 HBJ 55.

Extending Land Reform to Leasehold Condominiums in Hawai`i. 14 UH L. Rev. 681.

The Constitutionality of a Naked Transfer: Mandatory Lease-to-Fee Conversion's Failure To Satisfy a Requisite Public Purpose in Hawai`i Condominiums. 25 UH L. Rev. 561.

The Wash of the Waves: How the Stroke of a Pen Recharacterized Accreted Lands as Public Property. 34 UH L. Rev. 525 (2012).

Knick in Perspective: Restoring Regulatory Takings Remedy in Hawai`i. 42 UH L. Rev. 136 (2019).

Necessity Exceptions to Takings. 44 UH L. Rev. 60 (2022).

Case Notes

Even assuming provision is sufficiently clear to waive State's immunity under Eleventh Amendment, provision would confer jurisdiction only upon state courts. 693 F.2d 928.

Inverse condemnation action discussed. 840 F.2d 678.

Where landowners argued that ordinance creating mechanism through which condominium owners could convert their leasehold interests into fee simple interests violated public use clause of U.S. and Hawaii Constitutions, ordinance was constitutional; landowners' claim under just compensation clause not ripe for federal adjudication. 124 F.3d 1150.

Courts are immune from prohibition against taking without compensation. 402 F. Supp. 95.

Where provision was made for just compensation, city ordinance providing mechanism for transfer of fee interest from condominium lessors to lessees was constitutional. 802 F. Supp. 326.

Condominium lease-to-fee ordinance did not effect an impermissible taking. 832 F. Supp. 1404.

Attorney's fees and expenses are not embraced within "just compensation". 53 H. 582, 499 P.2d 663.

"Damaged" provision discussed. 55 H. 226, 517 P.2d 7.

Taking under Land Reform Act is for a public use; act's valuation scheme does not deprive landowners of just compensation. 68 H. 55, 704 P.2d 888.

Just compensation in leasehold condemnation under chapter 516. 72 H. 383, 819 P.2d 82.

Condemnation of leased fee interests in residential houselots continued to satisfy "public use" prerequisite of Fifth Amendment to U.S. Constitution and this section. 79 H. 64, 898 P.2d 576.

As Hawaiian custom and usage have always been part of the laws of the State, court's recognition of customary and traditional Hawaiian rights did not constitute judicial taking. 79 H. 425, 903 P.2d 1246.

As water is a state public trust resource to which no individual, including Waiahole Ditch water use permittees, could claim an exclusive right, permittees being required to fund subsequent stream studies and monitoring activities was not an unconstitutional "regulatory leveraging". 94 H. 97, 9 P.3d 409.

No unconstitutional taking of petitioner's property without just compensation by water resource management commission's denying petitioner's request to use the ground water underlying its lands and allocating it instead to other leeward parties where the right to absolute ownership of water exclusive of the public trust never accompanied the "bundle of rights" conferred in the Mahele. 94 H. 97, 9 P.3d 409.

Under the Hawaii constitution, courts may consider the validity of the public purpose asserted by the government in a condemnation action and, under appropriate circumstances, consider whether a purported public purpose is pretextual; thus, under the circumstances of the case, where it appeared that the trial court erred in declining to expressly examine the pretext issue in the condemnation, the trial court's judgment in the condemnation vacated and case remanded. 119 H. 352, 198 P.3d 615.

Although a contract that delegates a county's eminent domain powers raises well-founded concerns that a private purpose is afoot, a per se rule of pretext would threaten the established rule of deference given to the government's findings and declarations; by allowing a defendant to present evidence of pretext beyond the government's findings and declarations, the fact that a legislative body may not admit that the purpose is for a private benefit does not alleviate the defendant's burden to show pretext or necessitate a per se rule of pretext. 124 H. 281, 242 P.3d 1136 (2010).

Where record reflected that the developer was not the only entity that stood to benefit from the construction of the bypass road and the fact that the bypass allowed the developer to develop its property did not detract or destroy the public character of the bypass or render the condemnation invalid. 124 H. 281, 242 P.3d 1136 (2010).

Act 73, L 2003, by declaring accreted land to be "public land" and prohibiting littoral owners from registering existing accretion under chapter 501 and/or quieting title under chapter 669, permanently divested a littoral owner of his or her ownership rights to any existing accretions to oceanfront property that were unregistered or unrecorded as of the effective date of Act 73 or for which no application for registration or petition to quiet title was pending; thus, Act 73 effectuated a permanent taking of such accreted lands without just compensation in violation of this section. 122 H. 34 (App.), 222 P.3d 441 (2009).

Act 73, L 2003, by declaring accreted land to be "public land" and prohibiting littoral owners from registering future accretion under chapter 501 and/or quieting title under chapter 669, did not effectuate a taking of future accreted lands without just compensation in violation of this section where plaintiffs had no vested right to future accretions to their oceanfront land that may never materialize. 122 H. 34 (App.), 222 P.3d 441 (2009).

As a community plan amendment is not an administrative act, it cannot reasonably be required as a step in reaching a final agency determination for ripeness purposes; ripeness requires only that landowners take advantage of any available variances or waivers under existing law, it does not require them to undertake changing the law itself; thus, appellants were not required to seek a change in the applicable law, i.e., the community plan, in order to satisfy the ripeness requirements for their takings claim. 128 H. 183 (App.), 284 P.3d 956 (2012).

Section 21

LIMITATIONS OF SPECIAL PRIVILEGES

Section 21. The power of the State to act in the general welfare shall never be impaired by the making of any irrevocable grant of special privileges or immunities. [Ren and am Const Con 1978 and election Nov 7, 1978]

Section 22

CONSTRUCTION

Section 22. The enumeration of rights and privileges shall not be construed to impair or deny others retained by the people. [Ren Const Con 1978 and election Nov 7, 1978]

Case Notes

Hawaii constitution can afford criminal defendants greater protection than those given by federal constitution. 53 H. 254, 492 P.2d 657.

Section 23

MARRIAGE

Section 23. REPEALED. [Repeal HB 2802 (2024) and election Nov 5, 2024]

Section 24

PUBLIC ACCESS TO INFORMATION CONCERNING PERSONS CONVICTED OF CERTAIN OFFENSES AGAINST CHILDREN AND CERTAIN SEXUAL OFFENSES

Section [24]. The public has a right of access to registration information regarding persons convicted of certain offenses against children and persons convicted of certain sexual offenses. The legislature shall determine which offenses are subject to this provision, what information constitutes registration information to which the public has a right of access, the manner of public access to the registration information and a period of time after which and conditions pursuant to which a convicted person may petition for termination of public access. [Add SB 2843 (2004) and election Nov 2, 2004]

Section 25

SEXUAL ASSAULT CRIMES AGAINST MINORS

Section [25]. In continuous sexual assault crimes against minors younger than fourteen years of age, the legislature may define:

1. What behavior constitutes a continuing course of conduct; and

2. What constitutes the jury unanimity that is required for a conviction. [Add SB 2246 (2006) and election Nov 7, 2006]

Cross References

Continuous sexual assault of a minor under the age of fourteen years, see §707-733.6.

Constitution of Hawaii — Article 1

Section 1

Section 2

Section 3

Section 4

Section 5

Section 6

Section 7

Section 8

Section 9

Section 10

Section 11

Section 12

Section 13

Section 14

Section 15

Section 16

Section 17

Section 18

Section 19

Section 20

Section 21

Section 22

Section 23

Section 24

Section 25

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