State v. Spies

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-OCT-2024
08:12 AM
Dkt. 72 MO

NO. CAAP-XX-XXXXXXX

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

STATE OF HAWAI‘I, Plaintiff-Appellee,
v.
JONATHAN P. SPIES, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3CPC-XX-XXXXXXX)

MEMORANDUM OPINION
(By: Leonard, Acting Chief Judge, Hiraoka and Nakasone, JJ.)

In this appeal of a first-degree promoting a dangerous
drug (PDD1) conviction, Defendant-Appellant Jonathan P. Spies
(Spies) challenges, inter alia, the admission of the drug
analysis and testing over his foundation objection. Because the
required foundation was not laid, the evidence was erroneously
admitted, and we vacate and remand for a new trial.
Spies appeals from the June 9, 2023 "Judgment of
Conviction and Sentence" (Judgment), entered by the Circuit
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Court of the Third Circuit (Circuit Court), 1 following a jury
verdict finding him guilty as charged of PDD1, in violation of
Hawaii Revised Statutes (HRS) § 712-1241(1)(a). 2 The Circuit
Court sentenced Spies to twenty years of imprisonment, and Spies
timely appealed.
On appeal, Spies challenges the Circuit Court's
(1) admission of the criminalist's testimony of the drug
analysis and testing of the recovered substance for lack of
foundation showing that, for each of the devices used to weigh
and identify the substance, the criminalist had been trained in
accordance with each device manufacturer's requirements;
(2) denial of Spies's Motion to Dismiss due to defective
charging; (3) determination that Spies's statement to a police
officer was voluntarily made and admissible at trial; and
(4) denial of Spies's multiple motions to suppress the evidence
of the recovered substance. 3 We vacate and remand on the first
point of error as it is dispositive. To provide guidance on
remand, we affirm as to the remaining points.

1 The Honorable Robert D.S. Kim presided.

2 HRS § 712-1241(1)(a)(i) and (2) (2014 & 2016 Supp.) provide that
possession of one ounce or more of methamphetamine constitutes the Class A
felony offense of PDD1. The Indictment charged that on or about February 14-
15, 2021, Spies committed PDD1 by "knowingly possess[ing] . . . substances of
an aggregate weight of one ounce or more, containing methamphetamine[.]" The
lab analysis evidence at trial reflected that the substance weighed "33.929
plus or minus .07" grams and contained methamphetamine.

3 We have consolidated, reordered, and restated Spies's eight
points of error for clarity.
2
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

I. BACKGROUND
On February 14, 2021, Spies was the target of a
narcotics investigation by the Hawai‘i County Police Department

(HIPD), which had obtained search warrants of Spies's residence
and his person, based on Spies's sale of heroin to an informant
at his home. HIPD conducted a traffic stop of Spies, who was
driving a vehicle. After HIPD executed the search warrant for
Spies's person that turned up nothing, the police asked Spies
for consent to search his vehicle, and Spies responded that what
the police were seeking was in his vehicle. HIPD seized the
vehicle and towed it to the police station; conducted a canine
screen of the vehicle resulting in a positive alert; obtained a
search warrant for the vehicle based, inter alia, on the canine
screen; executed the search warrant for the vehicle; and
recovered multiple Ziploc packets of a crystalline substance
alleged to be methamphetamine from a black zippered pouch with a
checkbook inside, bearing Spies's name.
Pertinent to the dispositive issue on appeal, Spies
filed a February 20, 2023 "First Motion in Limine Re:
Foundational Requirements for Laboratory Test Results" (Motion
in Limine 1) that objected to the introduction of any laboratory
test results of the substance, absent a sufficient showing of
foundation regarding the laboratory technician's training; and
argued that the State must show the operator of the drug testing
device had "expert training in accordance with manufacturer's
requirements." The Circuit Court denied Motion in Limine 1
without prejudice, and held that it "must look through and
determine point by point the qualifications of the expert and
the results of the expert report."

3
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

At the March 29-30, 2023 jury trial, the State called
Criminalist Sophia Schiefelbein (Schiefelbein) to testify to the
drug analysis and testing she conducted on the substance.
Schiefelbein testified to her qualifications, and the State
proffered her as an "expert in the field of controlled substance
analysis and identification." Spies objected, and conducted
voir dire of Schiefelbein's qualifications, asking Schiefelbein
about the "number of jobs" she has held that do not have
"anything to do with narcotics testing, identification or
controlled substance analysis"; and her length of training for
the devices she used for laboratory testing in this case.
Schiefelbein testified that she was trained at the police
station; the training course for the balances was less than a
day; the Fourier Transform Infrared spectrometer (FTIR) training
was "approximately a month and a half"; and the ultraviolet (UV)
spectrometer training was "probably like whole weeks [sic]."
Over Spies's renewed objection, the Circuit Court found
Schiefelbein to be "an expert in the area of controlled
substances and analysis based upon her knowledge, skill,
experience and training and her qualifications in the courts of
the State of Hawai‘i."
Schiefelbein then described how she conducted the drug
analysis, and testified that the results of the drug analysis of
the "10 packets" was "[t]hat the presence of methamphetamine was
confirmed" and the total net weight of the substance was "33.929
plus or minus .07" grams. Spies objected "as to foundation"
pursuant to "Motion in Limine 1." 4 Schiefelbein's March 5, 2021

4 Spies objected to the substance weight and identification
evidence as follows:

4
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

"Official Report [HIPD] Crime Lab" summarizing these findings
and test results was also admitted over Spies's lack of
foundation objection. 5
Regarding the devices used in her analysis and
testing, Schiefelbein's report indicated that she measured the
weight with a "Sartorius MSA1203S balance" (Sartorius balance),
and she testified that the substance was identified by using the
UV spectrometer manufactured by "Agilent" (Agilent UV
spectrometer), and the FTIR manufactured by "Thermo Scientific"
(Thermo Scientific FTIR). On cross-examination by Spies's
counsel regarding her training for the Sartorius balance,
Agilent UV spectrometer, and the Thermo Scientific FTIR,
Schiefelbein testified that she was trained by someone at the

Q. [(BY PROSECUTOR)] And what was your
interpretation of the analysis?

A. [(BY SCHIEFELBEIN)] That the presence of
methamphetamine was confirmed.

[DEFENSE COUNSEL]: And I'll object as to
foundation per Motion in Limine 1.

THE COURT: Overruled.

Q. (By [PROSECUTOR]) And what was the total net
weight?

[DEFENSE COUNSEL]: Your Honor, again I object
as to foundation in accordance to [sic] Motion in Limine 1.

THE COURT: Overruled.

[SCHIEFELBEIN]: Um, 33.929 plus or minus .07.

Q. (By [PROSECUTOR]) Is that in grams?

A. Yes.

5 Only page one of Schiefelbein's two-page report was admitted into
evidence.

5
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

police station, and had not received training from each device
manufacturer, or any certification or accreditation that she had
received training in accordance with each device manufacturer's
requirements. 6 On redirect examination, Schiefelbein explained

6 Schiefelbein testified as follows:

Q. [(BY DEFENSE COUNSEL)] Had you ever received
any training from someone from Sartorius?

A. [(BY SCHIEFELBEIN)] No.

Q. Any training you received on that Sartorius
machine came from someone at the police station?

A. Yes.

Q. Okay. Did you ever receive any, um,
certification or accreditation or any sort of confirmation
that you have received training in accordance with the
manufacturer's requirements for that machine?

A. No.

. . . .

Q. Agilent? Have you ever received any training
from someone at Agilent?

A. For [(gas chromatograph mass spectrometer)] but
not UV.

Q. Thank you. Thank you for clarifying. With
respect to this machine have you ever received any, uh,
training from someone at Agilent?

A. No.

Q. Any training you received was from someone at
the police station?

A. Yes.

Q. Did you ever receive any certification or
accreditation, uh, indicating that you were trained in
accordance with, uh, Agilent's procedures?

A. No.

6
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

that the "crime lab manager" who trained and supervised her,
Kathy Pung, "was trained by people from Thermo Scientific," as
follows: "Kathy Pung was trained by people from Thermo
Scientific, and we have the manuals from the Thermo Scientific
themselves [sic] that are then used to write our procedures
which are accredited." When asked "did you run the FTIR in
conformance with the manufacturer's recommendation?",
Schiefelbein responded "Yes." 7 No other pertinent testimony
regarding each device manufacturer's training requirements
appears in the record.
II. STANDARDS OF REVIEW
A. Sufficiency of Foundation for the Admission of
Scientific Evidence
The determination of whether the necessary foundation
for the introduction of evidence has been established is within

Q. And the FTIR machine [sic] who's the
manufacturer?

A. Uh, Thermo Scientific.

Q. Did you ever receive any training from someone
at Thermo Scientific?

A. No.

Q. All the training you received was from someone
at the police station?

A. Yes.

Q. And did you ever receive any, um, certification
or accreditation certificate saying that you have been, uh,
trained in accordance with Thermo Scientific, uh, policies?

A. No.

7 This question specifically asked whether Schiefelbein operated
the FTIR "in conformance with the manufacturer's recommendation," which is
distinct from whether Schiefelbein herself was trained in accordance with the
manufacturer's requirements, which is at issue in this case.
7
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

the discretion of the trial court, and "will not be overturned
absent a showing of clear abuse." State v. Subia, 139 Hawai‘i
62, 66, 383 P.3d 1200, 1204 (2016) (citation omitted).
B. Motion to Dismiss
"A trial court's ruling on a motion to dismiss an
indictment is reviewed for an abuse of discretion." State v.
Metcalfe, 129 Hawai‘i 206, 222, 297 P.3d 1062, 1078 (2013)
(cleaned up).
C. Motion to Determine Voluntariness
We review the ultimate issue of the voluntariness of a
defendant's statement or confession de novo. State v. Baker,
147 Hawai‘i 413, 422, 465 P.3d 860, 869 (2020).
D. Motion to Suppress Evidence
"An appellate court reviews a ruling on a motion to
suppress de novo to determine whether the ruling was right or
wrong." State v. Hewitt, 153 Hawai‘i 33, 40, 526 P.3d 558, 565
(2023) (cleaned up). Determinations of probable cause are
reviewed de novo on appeal. State v. Navas, 81 Hawai‘i 113, 122-
23, 913 P.2d 39, 48-49 (1996).
III. DISCUSSION
A. The foundation for Schiefelbein's expert
qualification was deficient 8 where the record did
not reflect that her training to operate the three
devices used to weigh and identify the substance
was in accordance with each device manufacturer's
requirements.
Spies argues that the foundation for admission of the
"scientific readings" on the weight and identity of the

8 We do not address Spies's argument that "reliability for the
laboratory and the devices utilized were not shown" because the documents and
testimony at trial for laboratory accreditation and device calibration were
8
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

substance was "deficient" because "(1) [t]he State failed to
show that [] Schiefelbein received training in accordance with
the manufacturer's requirements for the three devices utilized
to test the weight and substance identification in this case";
and "(2) [t]he State failed to show what the manufacturer's
required training is for either of the three devices[.]" Spies
asserts that the required foundation in this case of "training
in accordance with the manufacturer's requirements" was not met
for the three devices at issue here, as follows: (1) the
Sartorius balance used to weigh the substance lacked foundation
because "[n]o testimony or evidence was provided as to what
Sartorious's [sic] training requirements are, and whether
anybody at the police station who was conducting training knew
of these requirements"; (2) the UV spectrometer manufactured by
Agilent, used to identify the substance, lacked foundation
because "[n]o testimony or evidence was provided as to what
Agilent's training requirements are, and whether anybody at the
police station who was conducting training knew of these

dated after the March 2021 drug testing date (testing date argument). The
point of error maintains that all of Spies's foundation objections were
preserved in Motion in Limine 1, but the testing date argument does not
appear there. See State v. Moses, 102 Hawai‘i 449, 456, 77 P.3d 940, 947
(2003) ("As a general rule, if a party does not raise an argument at trial,
that argument will be deemed to have been waived on appeal[.]"). The docket
cites provided in the point reflect Spies's counsel's questioning on device
calibration dates and laboratory accreditation dates, but no testing date
argument was made below. The docket cites show Spies objected to device
calibration and laboratory accreditation exhibits citing "Motion in Limine
Number 1," which as we have noted, did not contain the testing date argument.
See id.; State v. Wallace, 80 Hawai‘i 382, 410, 910 P.2d 695, 723 (1996)
(holding that "issue of the accuracy of the scale" was "waived" in a PDD1
case, where the defenses's trial objection to "testimony regarding the gross
weight of the cocaine did not challenge the accuracy of the certified gram
scale"); Haw. Ventures, LLC v. Otaka, Inc., 114 Hawai‘i 438, 500, 164 P.3d
696, 758 (2007) ("It is unfair to the circuit court to reverse on a ground
that no one even suggested might be error." (citation omitted)).

9
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

requirements"; and (3) the FTIR manufactured by Thermo
Scientific, also used to identify the substance, lacked
foundation because "[n]o testimony or evidence was provided as
to what Thermo Scientific's training requirements are, and
whether anybody at the police station who was conducting
training knew of these requirements."
Spies relies on the laser gun foundation cases of
State v. Assaye, 121 Hawai‘i 204, 216 P.3d 1227 (2009), State v.

Amiral, 132 Hawai‘i 170, 319 P.3d 1178 (2014), 9 and the drug

foundation case of State v. Manewa, 115 Hawai‘i 343, 167 P.3d 336
(2007), 10 to argue that: Manewa held "the foundation of the
expert's training for a scale to weigh drugs was . . .
deficient"; and that the foundation to qualify an expert must
include training in accordance with the device manufacturer's
requirements, as set forth in Amiral, that "the prosecution is

9 In Assaye, the supreme court held that the prosecution failed to
provide "sufficient foundation for the admission of [the officer's] testimony
regarding the speed reading given by his laser gun" because the prosecution
did not show whether the officer's training met the laser gun manufacturer's
requirements, and reversed Assaye's speeding conviction. 121 Hawai‘i at 216,
216 P.3d at 1239.

In Amiral, the supreme court held that the officer's testimony
was insufficient to establish that his laser gun training met the
manufacturer's requirements; and the prosecution "failed to lay an adequate
foundation for the introduction of the laser gun reading"; and thus vacated
the judgment and remanded to district court for further proceedings. 132
Hawai‘i at 179-80, 319 P.3d at 1187-88.

10 In Manewa, the supreme court vacated Manewa's convictions for
first-degree and second-degree promoting a dangerous drug, and held that
testimony as to the weight of methamphetamine was inadmissible for lack of
foundation as to the accuracy of the balance because the record "fail[ed] to
show that there was a manufacturer's accepted procedure for the user of the
balance to implement to ensure the balance was in working order." 115 Hawai‘i
at 357-58, 167 P.3d at 350-51.

10
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

required to produce evidence that the nature and extent of an
officer's training in the operation of the laser gun meets the
requirements indicated by the manufacturer." Opening Brief at
21 (quoting Amiral, 132 Hawai‘i at 178, 319 P.3d at 1186
(internal quotation marks omitted)). Spies's argument has
merit. 11
Hawaii Rules of Evidence (HRE) Rule 702 permits "a
witness qualified as an expert by knowledge, skill, experience,
training, or education" to testify to "assist the trier of fact
to determine a fact in issue[.]" "[B]efore the result of a test
. . . may be introduced into evidence, a foundation must be laid
showing that the test result can be relied on as a substantive
fact." Subia, 139 Hawai‘i at 66, 383 P.3d at 1204 (citing

Wallace, 80 Hawai‘i at 407, 910 P.2d at 720). "A proper

foundation for introducing a test result would necessarily
include expert testimony regarding: (1) the qualifications of
the expert; (2) whether the expert employed valid techniques to
obtain the test result; and (3) whether the measuring instrument
is in proper working order." Id. (cleaned up).
In Amiral, the supreme court explained that to admit a
laser gun reading, the prosecution must establish how the laser
gun operator's training met the requirements of the laser gun
manufacturer, and that the operator received such training, as
follows:

11 The State does not address Spies's argument that training in
accordance with the device manufacturer's requirements is a necessary part of
the foundation to qualify Schiefelbein, and only argues that Spies waived
this argument on appeal by "not rais[ing] the qualifications of Schiefelbein
as a point of error." This is inaccurate because Spies raises the challenge
in his first point of error.
11
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

In order to establish a sufficient foundation for the
admission of a speed reading from a laser gun, the
prosecution is required to produce evidence that the nature
and extent of an officer's training in the operation of the
laser gun meets the requirements indicated by the
manufacturer. To meet this burden the prosecution must
establish both (1) the requirements indicated by the
manufacturer, and (2) the training actually received by the
operator of the laser gun.
132 Hawai‘i at 178, 319 P.3d at 1186 (cleaned up). Because there

was no foundation reflecting the manufacturer's training
requirements for the laser gun operator in that case, the trial
court erred in admitting the speed reading from the laser gun
into evidence. Id. at 179, 319 P.3d at 1187.
The Hawaii Rules of Evidence Manual (HRE Manual)
similarly explains that a proper foundation for admission of a
test result from a scientific device includes a showing that the
operator of the device is a "qualified expert," which is met by
showing that the expert's training is in accordance with the
device manufacturer's requirements, as follows:
Assuming judicial approval of the general reliability of a
scientific machine, admissibility in any particular case
will depend upon "a foundation . . . showing that the test
result can be relied on as a substantive fact." State v.
Subia, 139 Hawaii [sic] 62, 66, 383 P.3d 1200, 1204 (2016)
(infrared spectrometer used to detect that a substance
contained methamphetamine). A proper foundation for such a
test result, according to Subia, would include (1) a
qualified expert (2) employing "valid techniques" to obtain
the test result (3) from a machine shown to be in "proper
working order." Id. That the operator is a "qualified
expert" means that her training "meets the requirements
indicated by the manufacturer of the device." State v.
Assaye, 121 Hawaii [sic] 204, 216 P.3d 1227 (2009) (laser
speed gun). That the operator used valid techniques means
she followed procedures recommended by the manufacturer of
the device. Id.
Addison M. Bowman, Hawaii Rules of Evidence Manual § 702-
2[5][C], at 7-22 (2024-2025 ed.) (emphases added). In
accordance with the above, the State in this case had to show

12
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

that Schiefelbein was trained in accordance with the
manufacturer's requirements for the three devices used to
analyze and test the substance, to establish foundation that
Schiefelbein was a "qualified expert" through whom the evidence
of drug identity and weight could be admitted "as a substantive
fact." See Subia, 139 Hawai‘i at 66, 383 P.3d at 1204; Amiral,

132 Hawai‘i at 178, 319 P.3d at 1186; Bowman, Hawaii Rules of
Evidence Manual, § 702-2[5][C], at 7-22.
Here, Schiefelbein testified that she was trained by
HIPD. She denied being trained by representatives from the
manufacturers of the three devices she used to analyze the
identity and weight of the recovered substance. The record does
not reflect whether HIPD's training was in accordance with each
device manufacturer's requirements, or what the manufacturer's
training requirements were for each respective device--the
Sartorius balance used to calculate the weight of the substance,
the Agilent UV spectrometer used to identify the substance, and
the Thermo Scientific FTIR also used to identify the substance.
See Amiral, 132 Hawai‘i at 178, 319 P.3d at 1186. Thus, the
State did not lay sufficient foundation to show Schiefelbein's
qualifications to operate the three devices used to determine
the identification and weight of the recovered substance. On
this record, we conclude the Circuit Court acted outside its
discretion by admitting Schiefelbein's testimony regarding the
identity of the substance as methamphetamine and the total net
weight of the substance as 33.929 grams (i.e., over one ounce or
28.35 grams), as substantive facts. See Subia, 139 Hawai‘i at
66, 383 P.3d at 1204.

13
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Because such evidence was critical to establishing
Spies's PDD1 conviction, the erroneous admission of the drug
analysis and test results from the Sartorius balance, Agilent UV
spectrometer, and the Thermo Scientific FTIR through
Schiefelbein's testimony was not harmless beyond a reasonable
doubt. We thus vacate and remand for a new trial. See Subia,
139 Hawai‘i at 63, 383 P.3d at 1201 (vacating and remanding for a
new trial in a methamphetamine trafficking case, where the
admission of the criminalist's testimony regarding the FTIR test
result that the substance contained methamphetamine lacked
foundation and was not harmless beyond a reasonable doubt);
State v. Long, 98 Hawai‘i 348, 355-56, 48 P.3d 595, 602-03 (2002)

(vacating and remanding for a new trial in a third-degree
promoting of a dangerous drug case, where the admission of the
criminalist's testimony regarding the FTIR test result that the
substance contained cocaine lacked foundation and was not
harmless beyond a reasonable doubt).
B. The denial of Spies's Motion to Dismiss was not an
abuse of discretion.
Spies argues that the Circuit Court erroneously denied
his Motion to Dismiss the charge as "fatally defective" for
failure to include the legal definition of the term "possess,"
which "is more detailed, nuanced, and limited than what a person
of common understanding would understand the word 'possess' to
mean."
"Whether a charge sets forth all the essential
elements of a charged offense is a question of law, which we
review under the de novo, or right/wrong, standard." State v.
Wheeler, 121 Hawai‘i 383, 390, 219 P.3d 1170, 1177 (2009)

14
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

(cleaned up). "[W]here the statute sets forth with reasonable
clarity all essential elements of the crime intended to be
punished, and fully defines the offense in unmistakable terms
readily comprehensible to persons of common understanding, a
charge drawn in the language of the statute is sufficient."
State v. Basnet, 131 Hawai‘i 286, 298, 318 P.3d 126, 138 (2013)
(citations omitted).
Here, the term "possess" is "readily comprehensible to
a person of common understanding[.]" See id. at 298-99, 318
P.3d at 138-39 (holding that the terms "family or household
member" and "physical abuse" are "readily understandable" and
need not be defined in the charge). Knowingly possessing a
substance containing methamphetamine with an aggregate weight of
one ounce or more is language sufficient to provide notice to
Spies. The Circuit Court did not abuse its discretion in
denying the motion to dismiss. See Metcalfe, 129 Hawai‘i at 222,
297 P.3d at 1078.
C. The determination that Spies's statement was
voluntary and thus admissible at trial was not
erroneous.
Spies argues that the Circuit Court erred by admitting
his statement at trial, "Everything that you guys are looking
for is in there[,]" 12 as voluntary because Spies was subject to

12 At trial, HIPD Officer Justin Gaspar (Officer Gaspar) testified
in pertinent part that:

Q. [(BY PROSECUTOR)] And when you came in contact
with, uh, [Spies] did you request consent to search the
vehicle, uh, that was near him?

A. [(BY OFFICER GASPAR)] Yes.

Q. Now, upon doing so was there any response that
was initially uttered by [Spies]?
15
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

custodial interrogation. [OB at 5-6] Spies claims that:
"[A]sking to search a vehicle in the context of execution of a
search warrant for narcotics has a reasonable likelihood of
eliciting an incriminating response and is interrogation."
The Circuit Court's unchallenged 13 findings of fact
(FOFs) from the "Order Re: State's Motion to Determine the
Voluntariness of Defendant's Statements" reflect that: when the
officers conducted a traffic stop of Spies's vehicle on February
14, 2021, the police had a search warrant to search Spies's
person and his home; Spies was seen "walking out of the driver's
side door" of the vehicle after the stop; Officer Gaspar
informed Spies of the warrant for the search of Spies's person
and conducted the search of Spies's person, pockets and
clothing, but does not locate anything; based on Officer
Gaspar's training, experience, and investigations, Officer
Gaspar knew that distributors of controlled substances would
commonly keep the substance "on or near their person"; Officer
Gaspar asked Spies for consent to search articles in the vehicle
that Spies was observed in at the time of the stop; and Spies
stated "Its [sic] all in there."
In its Conclusion of Law (COL) 21, the Circuit Court
correctly concluded, inter alia, citing State v. Rippe, 119

A. Yes.

Q. And what was that?

A. Uh, "Everything that you guys are looking for
is in there."

13 "It is well-established that . . . unchallenged findings of fact
are binding upon appellate courts." State v. Rodrigues, 145 Hawai‘i 487, 497,
454 P.3d 428, 438 (2019) (citation omitted).

16
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Hawai‘i 15, 22-24, 193 P.3d 1215, 1222-24 (App. 2008), that "[a]
request for consent to search the vehicle, without more, is not
interrogation." In Rippe, this court held that a "request for
consent to search [a] nylon bag did not constitute
interrogation" if "there was no prior custodial interrogation,"
as it only "required a simple 'yes-or-no' answer" and "was not
the type of question reasonably likely to elicit an
incriminating response." Id. Spies does not claim, and the
record does not reflect, that any interrogation occurred before
Officer Gaspar asked for consent to search Spies's vehicle.
Additionally, similar to Rippe, Officer Gaspar's request
"required a simple 'yes-or-no' answer[.]" Id. at 24, 193 P.3d
at 1224. Thus, Officer Gaspar's request "was not the type of
question reasonably likely to elicit an incriminating response"
and did not constitute "interrogation." Id. The Circuit Court
did not err in admitting Spies's statement at trial. See Baker,
147 Hawaiʻi at 422, 465 P.3d at 869.
D. The denial of Spies's multiple Motions to Suppress
the substance recovered from the vehicle was not
an abuse of discretion.
Search warrant for Spies's person. While Spies
acknowledges that the probable cause affidavit referenced "a
controlled narcotics transaction was conducted in the residence
of [Spies]" that supported probable cause for a search warrant
for Spies's residence, Spies claims there was "no basis" for "a
second separate warrant" "to search [Spies]'s person even when
not at his residence." Spies argues that the Circuit Court thus
erred by denying his "3rd" Motion to Suppress.
Here, the Circuit Court's order denying this motion
contained unchallenged findings and conclusions that: "the
17
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

informant related that he/she has known [Spies] to be in
possession of heroin in the last 72 hours, not that he/she only
knows [Spies] to possess narcotics in the home"; "[t]he
controlled purchased [sic] proved the reliability of the
statement offered by [Spies]"; "the officer describes in his
training he has been taught that distributors will use vehicles
to facilitate the transaction and . . . that currency and
narcotics will be near or around the distributor"; and "[t]he
common-sense review of the affidavit to include how distributors
work and what the informant relayed to officers establishes
sufficient basis for the warrant for the person of Spies." The
Circuit Court's denial of this Motion to Suppress and its
determination that probable cause existed for a warrant to
search Spies's person were correct. See Hewitt, 153 Hawai‘i at

40, 526 P.3d at 565; Navas, 81 Hawai‘i at 122-23, 913 P.2d at
48-49.
Spies's detention and warrantless seizure of his
vehicle. Spies argues the Circuit Court erred by denying his
"4th" Motion to Suppress because the "prolonged detention" after
the search of Spies's person turned up nothing was unjustified;
and the "continued detention of asking to search the vehicle
[wa]s a violation of [Spies]'s rights."
Here, the Circuit Court's order denying this motion
contained unchallenged findings and conclusions that prolonging
Spies's detention after the execution of the search warrant of
Spies's person was justified because Officer Gaspar knew the
search warrant of Spies's person was based on Spies's alleged
heroin distribution; the search warrant of Spies's person turned
up no controlled substances; Spies had come out of the driver's

18
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

seat of the vehicle; Spies said "Its [sic] all in there" when
Officer Gaspar asked to search the vehicle; and thus, "Officer
Gaspar had probable cause to be believe [sic] that the
contraband and evidence would be located within the vehicle
which [Spies] was found in just prior to the execution of the
warrant on [sic] his person." The Circuit Court also made
unchallenged factual-legal determinations that the seizure of
the vehicle was justified under the exigent circumstances and
automobile exceptions to the warrant requirement where "[t]he
car was exposed to public view[,]" posing "a foreseeable risk
that the evidence it sheltered might be removed before a warrant
could be sought some hours later"; automobiles, because of their
mobility, "'may be treated less stringently than a private
residence for the Fourth Amendment purposes'" under State v.
Elliott, 61 Haw. 492, 496, 605 P.2d 930, 933 (1980); and the
"officers had no assurance that if the vehicle was left
unattended, persons not in custody would not be able to gain
access to it or to the contraband which it contained." Given
this record, the Circuit Court did not err in denying the Motion
to Suppress on this basis. See Hewitt, 153 Hawai‘i at 40, 526
P.3d at 565.
Canine screen and warrant to search the vehicle.
Spies argues the Circuit Court erred by denying his "5th and
6th" Motions to Suppress the alleged drugs where (1) the canine
screen was an unconstitutional intrusion of his vehicle with a
"search enhancement device"; and (2) the probable cause
affidavit omitted the fact that canine Rory did not train with
"negative control samples" and did not provide "sufficient
detail of [canine] Rory's alert."

19
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Here, the Circuit Court's orders denying these motions
contained unchallenged factual-legal determinations that the
canine screen was permissible and the probable cause affidavit
was sufficient, as follows: Spies told the officers "Its [sic]
all in there"; Spies said "It's in the black wallet" and
referred to the center console of the vehicle from which he had
exited; "[t]he request for consent to search the truck and the
dog sniff conducted on the truck were reasonably related in
scope" to the officers' initial stop of Spies; "[t]he use of the
canine screen was related to this drug investigation and came
after [Spies] stated vaguely it is all in there"; "the officers
had conducted an arrest of [Spies] and a seizure of his vehicle
prior to the canine screen in this case"; "[t]he canine screen
took place at the police station while the vehicle was in police
custody"; there was "no search" resulting from the canine screen
under State v. Groves, 65 Haw. 104, 112, 649 P.2d 366, 372
(1982) 14 because "[s]imilar to luggage, people normally possess
an expectation of privacy in a car but not in the airspace
surrounding it"; the HIPD canine screening officer and canine
Rory "were fully qualified at the time of the screen" consistent
with Groves; 15 and their "qualifications were attached to the
affidavit in support of the search warrant." On this record,

14 The Groves court held that "there can be no reasonable
expectation of privacy in the airspace surrounding a person's luggage."
65 Haw. at 112, 649 P.2d at 372 (citations committed).

15 In Groves, the supreme court required a narcotics-sniffing dog
and handler to "be fully qualified[,]" 65 Haw. at 114, 649 P.2d at 373,
meaning "officers and dogs who have participated in established drug
enforcement programs." Id. at 114 n.6, 649 P.2d at 373 n.6. The Groves
court held that "[w]hen these requirements are met, the results of a 'dog-
sniff' can be brought . . . in an application for a search warrant." Id. at
114, 649 P.2d at 373.
20
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

the Circuit Court did not err in denying these Motions to
Suppress. See Hewitt, 153 Hawai‘i at 40, 526 P.3d at 565.
IV. CONCLUSION
For the foregoing reasons, we vacate the June 9, 2023
"Judgment of Conviction and Sentence," entered by the Circuit
Court of the Third Circuit, and remand for a new trial based on
the first dispositive point of error. We affirm as to all other
grounds raised.
DATED: Honolulu, Hawai‘i, October 3, 2024.
On the briefs:
/s/ Katherine G. Leonard
Andrew M. Kennedy,
Acting Chief Judge
for Defendant-Appellant.
/s/ Keith K. Hiraoka
Stephen L. Frye,
Associate Judge
Deputy Prosecuting Attorney,
for Plaintiff-Appellee.
/s/ Karen T. Nakasone
Associate Judge

21