An attorney for the family of a teenage pedestrian struck and killed a year ago by an on-duty Hawaii Police Department officer driving a blue-and-white cruiser was in court Thursday, attempting to obtain the officer’s cellphone and GPS data relating to the fatal incident.
Hannah McKee, representing the brother and parents of the victim, 16-year-old Samuel “Sammy” Mwarey in a wrongful-death lawsuit against the department and the officer, filed a motion seeking the cellphone and onboard computer of Officer Nicole Kanaka‘ole-Ioane — requests that were denied by Deputy Corporation Counsel Justin Lee, who represents HPD and the officer.
“The cellphone is not a document, and I understand Mr. Lee’s fundamental objection to that,” Hilo Circuit Judge Peter Kubota told McKee. “… You requested that they turn over the entire cellphone to you, which is unreasonable.”
The judge said that Kanaka‘ole-Ioane “has certain privacy interests and should not be invaded on anything that is not relevant.”
“Her cellphone can contain a lot of confidential information, including her passwords … (and) contacts with persons not having anything to do with this case,” he said. “How is it you can come up with a remedy that can address her privacy interests in accordance with your need to get relevant information?”
Lee said he and McKee both have experts who will witness the phone being accessed for data relevant to the fatal crash, which occurred on Jan. 5, 2024, on Kapiolani Street in Hilo between the YMCA and Hawaii Care Choices.
Mwarey died three days later at Hilo Benioff Medical Center.
“What we’re trying to work out right now is the matter of processing that data,” Lee told the judge. “Our interest is to protect the personal information of (Kanaka‘ole-Ioane) that is not relevant to the plaintiff’s inquiry. Ms. McKee can correct me if I’m wrong, but the plaintiff’s concern is their having their expert verify, you know, the soundness of our expert’s processing.”
HPD Chief Benjamin Moszkowicz told the Tribune-Herald in June that the crash data recorder — also known as the “black box” — in the 2008 Ford Crown Victoria sedan Kanaka‘ole-Ioane was driving wasn’t activated by the impact, so police don’t have vehicle-generated data about its speed at the time of the crash.
Mwarey was skateboarding on the pavement late at night, according to police, and had a blood-alcohol level of 0.19%, two-and-a-half times the threshold for legal intoxication, plus cannabinoids connected with marijuana use in his system.
Police said a third-party collision reconstruction investigation cleared Kanaka‘ole-Ioane — who, according to police, had no drugs or alcohol in her system — of any wrongdoing. She has since returned to duty.
McKee acknowledged “the data is not actually able to give us information about that night from the car,” which is another reason she’s requesting data from the officer’s cellphone and computer, which police call a mobile data terminal or MDT.
Kanaka‘ole-Ioane said in an affidavit her MDT wasn’t in the police cruiser.
“At the time of the incident, my assigned MDT was in my personal, subsidized vehicle, which was parked at the Hilo Police Station,” she said.
“Some apps on cellphones will track the GPS and the speed,” McKee told the judge. “So, if she was using her phone and using any number of apps, I don’t know which ones, it’ll actually be able to tell us how fast she was going.”
“So far, I have the matters for discovery on whether or not she was using the cellphone and any GPS information on speed of the vehicle, right? Is there anything else that you want to get discovery on?” Kubota asked.
“Yes, Your Honor, just specifically if she had communications — which I do believe experts could find her key words — about this accident,” McKee answered. “Those are the only topics that I’m looking for.”
“Communications with whom? Anyone?” the judge inquired.
“Yes. About the accident, solely,” McKee replied.
“The court finds that the issue of whether she was using the cellphone at the time of the accident is relevant,” the judge said. “The speed of the car, if it can be determined by GPS information on the cellphone. And nonprivileged communications with anyone about the accident.
“There needs to be some kind of a plan that your folks come up with,” he added.
Neither Kanaka‘ole-Ioane nor Mwarey’s family were present at Thursday’s hearing.
The judge set a status hearing with the lawyers, which isn’t public, for Feb. 25.
Email John Burnett at jburnett@hawaiitribune-herald.com.