Kim finds evidence gathered not admissible, closing drug case involving officer recommended for firing

  • Kona Circuit Judge Robert D.S. Kim hears public testimony in 2019 regarding the closing of a criminal case proceeding to the public involving the drug case of Jose Miranda. (LAURA RUMINSKI/West Hawaii Today, file photos)

  • After two years and countless continuances, all drug charges against Jose Miranda have been dropped.

KAILUA-KONA — Charges in a 2-year-old drug case have been dropped because of officer misconduct, a judge ruled.

Jose Miranda was charged in December 2017 with 11 counts of first-degree promoting a dangerous drug, class A felonies punishable by up to 20 years in prison.

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But last week Judge Robert D.S. Kim filed a findings of fact that granted Miranda’s motion to suppress evidence. Because of his judgment to suppress all of the evidence, Deputy Prosecutor Kauanoe Jackson filed a motion to drop the charges with prejudice, meaning the state cannot refile the case.

That motion was granted Thursday.

The ruling closes a case that featured an unusually public back-and-forth between the judge and state regarding the police officer involved, retired detective Sean Smith.

Back in the summer, the state motioned to dismiss the case because the officer was unavailable as a witness. Kim ruled then that he couldn’t grant the dismissal without knowing more details as to the reasons for the officer’s unavailability. After subsequent closed hearings, it was revealed Smith was on leave without pay while an internal investigation involving an officer-involved shooting case was conducted. That investigation showed Smith subsequently lied to his supervisor when asked if he fired the shots. It also showed the police department’s Administrative Review Board recommended Smith’s discharge from the department, with which the police chief agreed.

However, Smith retired on May 31, before any disciplinary action was taken.

The case was still active after those details came to light, but after reviewing more of Smith’s police work that led to the arrest of Miranda, Kim dismissed the case.

‘FRUIT OF THE POISONOUS TREE’

The police work that Kim found questionable involves a woman named Susan Watson.

According to court records, Watson was arrested for drug offenses at her home on Dec. 19, 2017, by Smith and Officer Nicholas McDaniel. At her trial, Watson testified that Smith told her they were not interested in her, but wanted Miranda, whom they believed to be a higher-level drug dealer.

Watson further testified that Smith wanted her to make a controlled buy with Miranda, and that before her video interrogation Smith promised her that in return for her cooperation, she would not be charged with a class A felony involving the drug arrest at her home.

Watson was charged with second-degree promoting a dangerous drug, a class B felony.

On Dec. 20, 2017, Miranda and Watson drove to Lowe’s in Kailua-Kona. Miranda testified Watson drove her truck and he was a passenger. He said he put his bag containing medicine in the back seat area of the truck and went alone into Lowe’s.

At Watson’s trial Smith testified, “Watson returned to her vehicle to retrieve her jacket, which she later said was under the cooler bag. Watson then locked her vehicle and went back into Lowe’s at which time Miranda was checking out at the register. They exited the store and proceeded to her vehicle when Area II Vice officers contacted both of them and detained them as part of a narcotics investigation.”

Smith further testified that he observed a cooler bag on the floor of the back seat and a canine screen was made of the vehicle and search warrant executed.

Watson testified that Smith asked her to open the bag in the back seat of her truck that she “suspected, you know, had this stuff in it because Jose put it behind his seat. So they asked me to open it and look inside of it. And then I told them, ‘I can’t do that.’ Because if , you know, if Jose saw me, it would be bad.”

Watson also testified that prior to her video interrogation after the Lowe’s arrest, Smith instructed her not to mention anything about them asking her to go into the bag, and if it came up to make sure she said it was McDaniel who asked her to do it, not Smith.

She further stated that Smith told her that she would not be charged with anything if she cooperated and did what she was told.

Kim stated that under the totality of the circumstances, the court found Watson was a credible witness, that she was actively recruited by the government and was directed by Smith who intentionally directed her to open and inspect Miranda’s bag. This was done before the canine search and execution of the search warrant.

He further stated that the search of the closed bag by Watson constituted a government search since she was directed by police and that Smith’s off-the-record discussion advising her how to respond to questions in rigged video interviews were an effort to cover up his actions.

Kim, citing case law, concluded, “The fruit of the poisonous tree doctrine prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.”

CASE HISTORY; HOW OFFICER WAS REVEALED

Trial was originally set to begin on June 18. However, prosecutors filed a motion to dismiss all charges on May 16 due to the unavailability of Smith as a witness, whom the prosecution refused to identify at the time.

In May, Hawaii Police Department Chief Paul Ferreira declined to provide prosecutors information regarding Smith’s unavailability as a witness in the Miranda case, according to unsealed exhibits.

Ferreira based his concerns on disclosure, citing the review board had not yet determined the validity of the charges against Smith and was concerned about the potential consequences if his identity and nature of the charges were revealed.

The police department’s position was that information may be released to the public after the review board’s determination of recommendation.

On May 24, Kim took up the motion to dismiss, but continued it. According to court minutes, he subsequently set an evidentiary hearing on the motion to dismiss to allow the court to investigate further to determine whether the case should, in fact, be dismissed.

At that hearing, it was revealed that the witness was a sworn police officer, and the state could not provide their identity or the specifics of unavailability. Prosecutors suggested that they may hold an in-camera interview, which is closed to the public.

The hearing was continued.

The state then filed a motion to close to the public the evidentiary hearing on the state’s motion to dismiss.

Concerned with the public’s right to know, Kim held a public hearing on June 6 regarding the motion for the closed hearing where he listened to statements from attorneys and the general public weighing in on the subject.

After the public hearing, Kim granted an in-camera (closed) hearing for Ferreira, Prosecuting Attorney Mitch Roth and Deputy Corporation Counsel Lerisa Heroldt.

Released declarations and exhibits submitted for the closed hearing revealed Smith was on leave without pay while an internal investigation involving an officer-involved shooting case was conducted.

Smith was administratively charged with standards of conduct relating to truthfulness, subversive acts prohibited, firearms discharge and obedience to laws, written orders policies, etc. in connection with the 11-day manhunt for fugitive Walter Gomes III in late-March.

Ferreira placed Smith on leave in April, determining that his retention at the workplace or any other police facility in any capacity was detrimental to the conduct of the investigation and would compromise its integrity and operation of the department as allowed in the SHOPO collective bargaining agreement.

The investigation was turned over to the police department’s Administrative Review Board.

On July 2, the review board released its report finding that Smith, on or about March 21, fired two rounds using his personal supplemental firearm in a private driveway in the area of Akoni Pule Highway and Camp 17 Road in North Kohala.

At the time, the identity of the officer who fired their weapon was unknown. The court filings indicate Smith subsequently lied to his supervisor when asked if he fired the shots.

An ammunition count was conducted and it was discovered that all rounds were accounted for. It was later found that Smith replaced the ammunition so he would not be identified as the officer who discharged the spent rounds, according to the court documents.

The board, which is composed of ranking Hawaii Police Department officers, unanimously voted to recommend Smith’s discharge from the department, with Ferreira concurring with the findings.

However, Smith retired on May 31, before any disciplinary action was taken. Ferreira, in a July 2 declaration to the court, said he received notice of Smith’s application for retirement on May 20 effective June 1.

No criminal charges were filed.

On July 30, after the closed hearing, Kim ordered the release to the public of a redacted copy of the in-camera submission made by Ferreira, Roth and Heroldt.

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Prosecutors withdrew the motion to dismiss the following day, but refiled after Kim’s ruling to suppress the evidence last week.

Charges against Watson were dropped in May.

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