State v. Kaulukukui

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-NOV-2024
08:18 AM
Dkt. 43 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellant,
v.
JULIA LEILANI KAULUKUKUI, Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

This appeal arises out of an order suppressing
evidence of Ziploc bags containing a methamphetamine-like
substance recovered during an airport administrative search
conducted by a Transportation Security Administration (TSA)
agent, for which Defendant-Appellee Julia Leilani Kaulukukui
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(Kaulukukui) was charged with first-degree promotion of a
dangerous drug. We vacate and remand.
Plaintiff-Appellant State of Hawaiʻi (State) appeals
from the December 13, 2023 "Findings of Fact [(FOFs)],
Conclusions of Law [(COLs)] and Order Granting [Kaulukukui]'s
Motion to Suppress Evidence" (Suppression Order); and December
14, 2023 "Order Granting [Kaulukukui]'s Oral Motion to Dismiss"
(Dismissal Order), 1 both filed by the Circuit Court of the First
Circuit (Circuit Court). 2
On appeal, the State contends the Circuit Court erred
by: (1) failing to make certain factual findings of the
observations by the TSA baggage screening agent Lauricia Ota-
Tuamoheloa (Agent Ota-Tuamoheloa) and the TSA baggage search
agent Samuel Galang, Jr. (Agent Galang) that were supported by
the evidence; and "clearly erred in finding that Agent Galang
'knew the substance in the two Ziploc bags [was] not related to
the safety of the aircraft'"; and (2) "concluding that Agent
Galang's search and seizure of the zip lock [sic] bags went
beyond the scope of an airport administrative search for weapons
and/or[]explosives, and thus was illegal." (Cleaned up.)
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve the
contentions as follows.
On August 31, 2022, the State charged Kaulukukui with
one count of Promoting a Dangerous Drug in the First Degree.

1 The State does not present argument on the Dismissal Order, and
we do not address it. See Hawai‘i Rules of Appellate Procedure Rule 28(b)(7).

2 The Honorable Clarissa Y. Malinao presided.

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On October 10, 2023, Kaulukukui filed a "Motion to
Suppress All Evidence" (Motion to Suppress), arguing, inter
alia, that while a TSA agent may "look for weapons and
explosives" in an administrative search, the search in this case
exceeded its permissible scope, where the substance in the
Ziploc bags was "clearly neither a weapon nor an explosive."
Kaulukukui asserted that "all evidence seized pursuant to the
search of [her] person and property must be suppressed because
it was seized in violation of her Fourth Amendment rights." The
State's November 22, 2023 opposition argued that the evidence
was "recovered during [a] legal administrative search"; and that
"[a]t the time of the search, the substance in the bags had not
been deemed safe or cleared as an explosive or dangerous
object."
The following testimony was adduced at the hearing on
the Motion to Suppress conducted on November 29 and December 1,
2023.
Agent Ota-Tuamoheloa testified that on August 25,
2022, she was stationed at the Honolulu International Airport as
a TSA "X-ray operator" screening baggage. She was tasked to
"look for any contraband or any prohibited items that may come
to the checkpoint," such as "guns, knives, [and] any [improvised
explosive device (IED)] components." 3 At 5:45 a.m., Agent Ota-
Tuamoheloa noticed an "organic and inorganic mass" on the "X-ray
machine," with a "green and orangelike tinge to it." She pulled
the bag to a side area onto the "manual diverted rolling belt,"

3 Agent Ota-Tuamoheloa testified that "IED" stood for "[i]nitiator"
explosive device; however, the Department of Homeland Security defines "IED"
as "improvised explosive device." Improvised Explosive Devices (IEDs), U.S.
Department of Homeland Security, https://www.dhs.gov/topic/explosives (last
visited Nov. 25, 2024).
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for the baggage search agent, Agent Galang, to take a closer
look. The item "raised [her] suspicion[,]" as "it could [have
been] a component of an IED" because "it [did not] look like
every day items." As Agent Ota-Tuamoheloa continued to operate
the X-ray machine, she observed a "commotion" and noticed that
others were "trying to find the passenger that owned the bag"
because the passenger "left," and others "were trying to call
[the passenger] back." Agent Ota-Tuamoheloa testified that her
job required her to search for "dangerous items," and that if
she came across other "prohibited items like drug[s] or
contraband," she had "to notify law enforcement." Later, when
Agent Ota-Tuamoheloa walked past the bag in question during a
shift rotation, she observed "crystals and white powder." Agent
Ota-Tuamoheloa testified that: in her experience, she had
frequently seen other passengers bring Hawaiian salt on to
planes; the Hawaiian salt was not in a Ziploc bag and was
"usually in that bag themselves [sic] with the label on it"; and
"Hawaiian salts are usually very inorganic" and appear "very
green on [the X-ray] screen." She noted that "this mass" in the
tagged bag "had more orange in it[,]" "like a mixture of . . .
something organic and something inorganic[,]" and "[t]hat's why
[she] suspected it."
Agent Galang testified that on August 25, 2022, he was
on duty as the TSA "property search agent" at the airport.
Agent Galang's role was to "check bags that [were] on queue that
[were] pulled out by the X-ray operator." Agent Galang was
tasked to check for "[t]hreats to aviation like bombs and
explosives[,]" "anything that the X-ray operator may have
tagged[,]" and "items that [were] threats, [such as] knives."
When a bag comes into the queue line for a baggage search, Agent

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Galang's first step is to "identify who the owner of the bag
is." Agent Galang testified that at around 5:45 a.m., a "black
roller bag" came through for a search. Agent Galang called for
the owner of the bag, and Kaulukukui identified herself as the
owner. Agent Galang explained that prior to searching the bag,
he looked at the X-ray screen to see which items the "X-ray
operator tagged [] inside the bag" for him "to check." Agent
Galang searched the "tagged items" within the bag, and found
"rolled . . . jeans" containing "crystalline substances" inside
two "Ziploc bags." Agent Galang "did not know what they were."
While the first Ziploc bag could have contained "regular salt,"
the second bag was "different," with "larger crystals,
crystalline substances," which "look[ed] like . . . a threat"
and could have been "ingredients to explosives." When asked
whether he suspected the substances could be illegal drugs,
Agent Galang testified, "No, I didn't even think it was illegal
drugs." While Agent Galang conducted a test for explosives on
the first Ziploc bag that came back as negative, he testified
the test was "not 100 percent" accurate, and he still had safety
concerns because he was "not sure what the . . . substance was."
Agent Galang explained he then called for a supervisor because
"[t]he second bag ha[d] []bigger lumps," and he "needed help []
from a supervisor"; he was "not sure whether it was a threat or
not"; and Kaulukukui began "exhibiting signs" requiring him "to
call for a supervisor." While Agent Galang was waiting for the
supervisor, Kaulukukui "ran to the door." The supervisor
arrived and called law enforcement.
State of Hawai‘i Deputy Sheriff Efren Bayongan, Jr.

(Sheriff Bayongan) testified that on August 25, 2022 at 6:03
a.m., he was on duty at the airport when he was dispatched to

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the Terminal 1 checkpoint for a "reported found substance by
TSA." Sheriff Bayongan testified that it is standard practice
for TSA to call when they are unclear about what an item is.
When asked whether the TSA agents who had called knew what the
substance was, the sheriff replied, "No . . . they weren't
really sure." When Sheriff Bayongan arrived, he observed an
"open carry-on" and "two clear . . . Ziploc bags" with an
"unknown substance inside." Sheriff Bayongan "quick[ly]"
recognized that the "white crystalline substances [] appeared to
be crystal methamphetamine" from his "training in the academy."
Sheriff Bayongan testified that while the substance could have
been Hawaiian salt, he "felt confident" that it was crystal
methamphetamine "from the looks of it [sic]." Sheriff Bayongan
collected the two bags as evidence, identified Kaulukukui as the
owner of the bag, and arrested Kaulukukui. Sheriff Bayongan
testified that the substances were later tested and confirmed to
contain methamphetamine.
The Circuit Court orally granted the Motion to Suppress,
and subsequently filed its December 13, 2023 Suppression Order
containing the following COLs:
Based on the evidence and testimony provided, the court
finds that Agent Galang's search and seizure of the zip
lock [sic] bags went beyond the scope of an airport
administrative search for weapons and/or explosives, [and]
thus was illegal.

. . . .

Here, the need for the administrative search was to
look for weapons and explosives. The need to search is
justified because the search was conducted to ensure the
safety of airline passengers and personnel. United States
v. McCarty, 648 F.3d 820 (9th Cir. 2011).

However, in this case the search went too far. The
two baggies found were clearly neither a weapon nor an
explosive. [Agent] Galang tested one of the bags and found
no explosives or danger. Indeed, Agent Galang admitted that

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he did not know what the zip lock [sic] bags contained.
[Agent] Galang is not law enforcement and therefore, it is
not his job to attempt to determine if what he found while
searching through a passenger's luggage is or is not
evidence of a crime.

Here, the search clearly went beyond the scope of a
legal warrantless administrative search and therefore, was
unreasonable. Kaulukukui had a privacy interest in her
luggage. The baggies found were not immediately
identifiable as illegal contraband. TSA Agent Galang
blatantly violated Kaulukukui's privacy when he detained
the baggies even though he knew they were not related to
the safety of the aircraft. See Horton v. California, 496
U.S. 128, 137 (1990) (To justify seizure, the incriminating
object must be immediately apparent to its viewer). [Agent]
Galang readily admitted "I was not sure what the substance
in her bag was." Thus, the items discovered and seized were
the product of an unlawful search.

(Emphases added.)
The Circuit Court's subsequent December 14, 2023
Dismissal Order reflected that the State "indicated that it
would not be able to proceed to trial" due to the suppression of
the seized evidence.
The State timely appealed.
(1) The State argues that, while the Suppression Order
contained a finding that Agent Ota-Tuamoheloa "saw what appeared
to be a mass with green and orange tinge[,]" the Circuit Court
erroneously omitted the agent's accompanying testimony
explaining the usual "green" color of Hawaiian salt and its
customary packaging not in Ziploc bags. The State also asserts
error based on the Circuit Court's failure to include findings
regarding Kaulukukui's attempt to flee when the two Ziploc bags
were discovered. Finally, the State argues that the COL (which
is actually an FOF), 4 that Agent Galang "detained the baggies

4 Whether a determination is an FOF or COL is a question of law,
and the accuracy of the label is freely reviewable by an appellate court.
Kilauea Neighborhood Ass'n v. Land Use Comm'n of State of Haw., 7 Haw. App.
227, 229, 751 P.2d 1031, 1034 (1988).
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even though he knew they were not related to the safety of the
aircraft[,]" was erroneous because it was "not supported by any
other [FOFs]" or "by the evidence adduced at the hearing." The
State's last argument has merit.
The State cites no authority, nor are we aware of any,
to support its argument that error on appeal can be predicated
on the lack of particular details in a trial court's factual
findings. See State v. Ramos-Saunders, 135 Hawai‘i 299, 304-05,
349 P.3d 406, 411-12 (App. 2015) ("The trial judge is required
to only make brief, definite, pertinent findings and conclusions
upon the contested matters; there is no necessity for over-
elaboration of detail or particularization of facts." (citation
omitted)). The Circuit Court was not required to include the
particular details desired by the State in its FOFs.
"Pretrial findings of fact are reviewed under the
clearly erroneous standard. A finding of fact is clearly
erroneous when . . . the record lacks substantial evidence to
support the finding . . . ." State v. Quiday, 141 Hawai‘i 116,
121, 405 P.3d 552, 557 (2017) (cleaned up).
Here, the Circuit Court found that Agent Galang
"admitted" that he "'was not sure what the substance in
[Kaulukukui's] bag was'"; and Agent Galang "detained the baggies
even though he knew they were not related to the safety of the
aircraft." The record supports the first finding that Agent
Galang did not know what the substance was, and does not support
the latter finding that he "knew" that the substance he could
not identify was not a safety threat. Agent Galang testified
that he had safety concerns even after testing the first Ziploc
bag; the substance in the second bag appeared "different," with
"larger crystals"; and he called for a supervisor because he
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could not determine whether the substance was a "threat." The
Circuit Court did not reject Agent Galang's credibility. See
State v. Jenkins, 93 Hawai‘i 87, 103-04, 997 P.2d 13, 29-30

(2000) (explaining that in reviewing a motion to suppress, "the
credibility of witnesses falls within the province of the trier
of fact, and should not be second-guessed by this court"
(internal citation omitted)). There was no substantial evidence
supporting the finding that Agent Galang "knew" that the unknown
substances in the bags "were not related" to aircraft safety.
See Quiday, 141 Hawai‘i at 121, 405 P.3d at 557. Rather, the

record reflects that Agent Galang was still trying to determine
whether or not the substances were a threat. Thus, we conclude
the Circuit Court's finding that Agent Galang "knew" that the
substances in the Ziploc bags were unrelated to aircraft safety,
was clearly erroneous. See id.
(2) The State argues the Circuit Court erred
in concluding that Agent Galang's search and seizure of the
Ziploc bags went beyond the scope of a constitutionally
permissible airport administrative search. The State argues
that Agent Galang was "not able to confirm that the unknown
substance in [the] two clear Ziploc bags were [sic] explosives,"
and that "further investigation was necessary before deciding
what to do." The State contends that "it would be irresponsible
to allow the two clear Ziploc bags into the secured area without
verification that they were not a safety threat[,]" citing U.S.
v. Aukai, 497 F.3d 955, 960-61 (9th Cir. 2007); 5 and that

5 In Aukai, the TSA agent called law enforcement and searched the
defendant's front pocket, after the defendant attempted to leave the secured
area by choosing to not board the plane after a handheld magnetometer was
"triggered" by an unknown object in his pocket. 497 F.3d at 957-58. The
Ninth Circuit held that the search was reasonable under the circumstances to
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"[c]ommon sense dictates that TSA agents should have the
authority to make reasonable inquiries with . . . law
enforcement officers, to confirm or dispel suspicions about
unknown items found in valid airport security checks."
Kaulukukui argues that "the administrative search's
objective" was limited "to detect weapons and explosives[.]"
Citing U.S. v. McCarty, 648 F.3d 820 (9th Cir. 2011), 6 Kaulukukui
argues that "the extent of the search was clearly excessive"
because the Ziploc bags contained "neither weapons nor
explosives," and the search was not "aimed to ensure the
security of airline passengers and staff."
"A trial court's ruling on a motion to suppress
evidence is reviewed de novo to determine whether the ruling was
'right' or 'wrong.'" State v. Kaleohano, 99 Hawai‘i 370, 375, 56

P.3d 138, 143 (2002) (citation omitted). A trial court's COLs
are also reviewed under the same standard. Id.
In State v. Hanson, the Hawai‘i Supreme Court stated,
"warrantless searches at airport security checkpoints do not
offend either the fourth amendment or the Hawai‘i Constitution."

97 Hawai‘i 71, 74, 34 P.3d 1, 4 (2001) (citing Nakamoto v. Fasi,

64 Haw. 17, 24, 635 P.2d 946, 953 (1981)). The supreme court

rule out the presence of weapons or explosives. Id. at 960-62. The court
explained that allowing the defendant to leave the secured area without going
through the airport screening process "would [] allow terrorists a low-cost
method of detecting systematic vulnerabilities in airport security, knowledge
that could be extremely valuable in planning future attacks." Id. at 961.

6 In McCarty, the TSA agent flagged the defendant's bag for a dark
mass and began to search the bag, during which photographs of child
pornography were revealed. 648 F.3d at 825-26. The TSA agent testified that
the dark mass could have been the photographs, and she checked the
photographs for possible hidden sheet explosives. Id. The Ninth Circuit
held the administrative search was valid for the timeframe during which the
TSA agent was viewing the photographs to search for explosives. Id. 831-38.
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recognized "[i]t is widely held that persons boarding aircraft
have a decreased objective expectation of privacy in their
belongings." Id. (citations omitted). "Plainly, the surrender
of one's effects at airport security checkpoints is to allow
inspection of such effects for contents that may pose a danger
to those on the aircraft." Id. at 76, 34 P.3d at 6 (citation
omitted).
Because the purpose of such airport security searches
is to detect "deadly, but easily concealable, substances," the
Hanson court explained that such purpose "can only be
effectuated if the items subject to search can be identified[.]"
Id. (citation omitted). Hanson involved a Honolulu Airport
security search of the defendant's luggage, where an X-ray
machine was unable to identify all of the contents of a wooden
toolbox. Id. at 72, 34 P.3d at 2. The defendant opened the
toolbox to allow the airport security officer to search it, and
"[i]n the box was a tan plastic bag wrapped in duct tape[,] but
the bag's contents could not be identified." Id. The security
officer "opened the plastic bag and discovered a second plastic
bag containing a white cardboard box[,]" which contained a
handgun inside. Id. The supreme court affirmed this court's
reversal of the order suppressing evidence of the gun, holding
that the scope of airport security searches may "reasonably
extend" to items in luggage that are "indiscernible" or
unidentifiable in light of the magnitude of danger to aircraft
occupants:
Considering its purpose, the scope of the airport
checkpoint security search may reasonably extend to the
indiscernible contents of any containers in luggage. The
reach of such a search is reasonably tailored to protect
against 'the magnitude and pervasiveness of the danger' to
aircraft occupants that is the governmental objective of
airport searches.

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Id. at 77, 34 P.3d at 7 (citing Nakamoto, 64 Haw. at 24,
635 P.2d at 953).
Here, Agent Galang's actions were within the
reasonable scope of an airport security search, which purpose is
to protect against danger to aircraft occupants. See id. The
protective purpose of such a search can "only be effectuated if
the items subject to search can be identified," id. at 76,
34 P.3d at 6, and Agent Galang was attempting to fulfill that
objective when confronted with the unidentified substance in the
Ziploc bags. Agent Galang's investigation to determine whether
the unknown, indiscernible substance in the Ziploc bags was an
ingredient for an IED or an explosive or something else that
might pose a threat, was properly cabined to that purpose. See
id. The Circuit Court erred in concluding that Agent Galang's
investigation of the Ziploc bags containing a substance unknown
and indiscernible to him, constituted an illegal search that
"went beyond the scope of a legal warrantless administrative
search." See Kaleohano, 99 Hawai‘i at 375, 56 P.3d at 143.
We do not address the State's additional argument
regarding application of the plain view doctrine to Sheriff
Bayongan's observation, and whether the sheriff had probable
cause to arrest. The Circuit Court suppressed the evidence as
the fruit of an unlawful search, and did not reach these issues.
In light of our ruling upholding the search, the Circuit Court
should address these issues on remand.
For the foregoing reasons, we vacate the December 13,
2023 "Findings of Fact, Conclusions of Law and Order Granting
Defendant's Motion to Suppress Evidence" and the December 14,
2023 "Order Granting Defendant's Oral Motion to Dismiss," both

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filed by the Circuit Court of the First Circuit. We remand for
further proceedings consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai‘i, November 27, 2024.
On the briefs:
/s/ Clyde J. Wadsworth
Brian R. Vincent,
Presiding Judge
Deputy Prosecuting Attorney
for Plaintiff-Appellant.
/s/ Karen T. Nakasone
Associate Judge
William A. Harrison,
for Defendant-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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