and Submitted February 24, 2017 Honolulu, Hawaii
from the United States District Court for the District of
Hawaii Susan Oki Mollway, Senior District Judge, Presiding
D.C. No. 1:13-cr-00653-SOM-6.
M. Otake (argued), Honolulu, Hawaii, for Defendant-Appellant.
A. Thomas (argued), Assistant United States Attorney;
Florence T. Nakakuni, United States Attorney; United States
Attorney's Office, Honolulu, Hawaii; for
Before: Alex Kozinski, Michael Daly Hawkins, and Carlos T.
Bea, Circuit Judges.
panel affirmed the district court's order denying the
defendant's motion to suppress contraband seized during a
warrantless search of the defendant's truck.
panel held that under the totality of the circumstances,
there was probable cause to believe that contraband would be
found in the truck, and that the search was therefore
permissible under the automobile exception to the warrant
Judge Kozinski wrote that the government, whose case rests on
four meetings between the defendant and a suspected meth
dealer, came nowhere close to meeting the probable cause
standard, where officers, who observed most of the meetings
and wiretapped the dealer's phone, never saw a handoff of
money or contraband, nor heard an explicit mention of drugs.
August to November 2012, John Penitani ("Penitani")
was the primary target of a court-authorized wiretap
investigation. The purpose of the investigation was to
identify Penitani's drug trafficking organization,
including his sources of methamphetamine.
enforcement agents began investigating Penitani in July 2012,
based on the seizure of 14 ounces of methamphetamine and
approximately $3, 600 from Penitani's cousin, Makusi
Penitani ("Makusi"). Makusi told law enforcement
agents that he had obtained the seized methamphetamine from
Penitani and that he had been purchasing approximately one to
two pounds of methamphetamine a month from
Jacob Del Mundo Faagai ("Faagai") was introduced to
Penitani by Julius Mitchell ("Mitchell"). Law
enforcement agents knew that Mitchell and Penitani had
previously engaged in three illegal drug transactions before
this introduction took place. In addition, Mitchell had
assisted Penitani in collecting a drug debt that Makusi owed
October 29, 2012, Penitani met Faagai alone at a restaurant
in West Oahu. Beforehand, Penitani asked Faagai in an
intercepted telephone conversation: "You by yourself[, ]
eh?" Faagai responded, "Yeah, yeah automatic."
Agents observed Penitani and Faagai at the restaurant, but
could not hear what the two men discussed. In an intercepted
telephone call after the meeting, Penitani asked Mitchell
whether Faagai was "trustworthy, " and told
Mitchell, "I said I just hope he don't try to do me
that same day, agents intercepted another call between
Penitani and Faagai, in which Faagai was attempting to locate
Penitani at the Pearlridge Shopping Center for what appeared
to be a pre-planned meeting. Drug Enforcement Administration
Special Agent Clement Sze ("Special Agent Sze")
testified that he believed that although agents were not able
to conduct surveillance of that meeting, they believed, based
on the entirety of their investigation, that Penitani and
Mitchell were meeting Faagai to supply him with
November 4, 2012, law enforcement agents seized five pounds
of methamphetamine from a courier whom Penitani's
supplier had sent to Hawaii.
November 5, 2012, agents intercepted a text message from
Faagai to Penitani in which Faagai said that he was going to
Costco in Kapolei "to buy food for [his] house" and
that if Penitani "gotta buy food for [Penitani's]
house, " they should meet at Costco. Special Agent Sze
testified that he believed that Faagai was using
"food" as a code word for "money." He
also testified that he believed that Faagai wished to arrange
a meeting in which he would pay Penitani for methamphetamine
that Penitani fronted to him on October 29. Defense counsel
did not object to this opinion testimony. Agents traveled to
the Costco in Kapolei and observed Penitani and his then
girlfriend, Keschan Taylor, exit Costco and drive away.
Agents did not see Faagai in the area, but Special Agent Sze
testified that the agents believed that the meeting between
Faagai and Penitani had already taken place.
hours later, agents intercepted a text message from Penitani
to Faagai stating, "Man thanks to this broad I lost ten
large. Man sorry taking long with da tools bro." Special
Agent Sze testified that he believed that Penitani was
indicating to Faagai that he had lost $10, 000, and that
"tools" referred to methamphetamine. Once again,