State v. Alvarez.

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Electronically Filed
Supreme Court
SCWC-12-0000838
30-JUN-2016
07:44 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,
vs.
ELUJINO V. ALVAREZ, III, Petitioner/Defendant-Appellant.
SCWC-12-0000838
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000838; CR. NO. 11-1-0216)
JUNE 30, 2016
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
This case arises out of a routine traffic stop and the
subsequent arrest of Elujino V. Alvarez III for possession of
methamphetamine. Prior to trial, Alvarez filed a motion to
suppress drug evidence recovered as a result of a canine screen
that was performed on his vehicle. Alvarez argued that the
evidence was obtained in violation of the Fourth Amendment to the
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U.S. Constitution and article I, section 7 of the Hawai#i
Constitution. All of the issues in Alvarez’s appeal relate to
his motion to suppress.
Alvarez was driving a vehicle that was stopped by
police because one of the two passengers was not wearing a
seatbelt. During the stop, police officers recognized Alvarez as
being involved in prior unrelated police investigations for
drugs. Based on the police officers’ recognition of Alvarez, the
officers telephoned another officer to come to the scene with his
police dog to conduct a canine drug screen on the car. The
canine alerted to the presence of contraband, and Alvarez was
arrested for possession of a controlled substance.
Alvarez filed a motion to suppress that evidence, which
was denied by the circuit court.1 Alvarez entered a conditional
no contest plea, and was convicted and sentenced for promotion of
a dangerous drug in the third degree.
On appeal, the Intermediate Court of Appeals affirmed
Alvarez’s conviction. However, we conclude that the ICA erred in
affirming the denial of Alvarez’s motion to suppress. The canine
narcotics screen was a separate unlawful seizure that was not
reasonably related in scope to the original traffic stop.
Accordingly, we vacate the ICA’s judgment on appeal and the
circuit court’s judgment of conviction and sentence, and remand
for further proceedings consistent with this opinion.
1
The Honorable Greg K. Nakamura presided.
2
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I. Background
The following factual background is taken from the
record on appeal.
A. Alvarez’s Arrest and Indictment2
On June 9, 2011, Officer Brian Souki, Detective Paul
Fukuda, and Detective Tod Bello were performing traffic
enforcement in Hilo.3 Detective Fukuda spotted a vehicle with a
female front-seat passenger who was not wearing her seatbelt, and
the vehicle was subsequently stopped by Detective Bello.
Following the stop, Detective Fukuda recognized the driver of the
vehicle as Alvarez. Detective Fukuda had previously encountered
Alvarez and the two passengers of the vehicle, Mamone-McKeague
and Kama, while he was assigned to the Hilo Vice Section.
Detective Fukuda also stated that he had received “reliable
confidential information” within the past five days that Alvarez
was distributing crystal methamphetamine. Upon recognizing the
occupants, Detective Fukuda contacted canine handler Officer
David Reis to screen the vehicle. Officer Reis was at the Hilo
police station when he received the call.
After stopping the vehicle, Detective Bello began
issuing citations to Alvarez for driving without a valid license
2
The summary of facts regarding Alvarez’s arrest is taken from
Officer Souki’s police report and testimony given at Alvarez’s June 15, 2011
preliminary hearing. These facts are not in dispute.
3
Although these officers were conducting traffic enforcement on
that particular day, their normal duty assignments were to the Area One Vice
Section.
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and without insurance, and to Kama for not wearing a seatbelt.
After Officer Reis arrived at the scene, he screened the outside
of the car with his dog, Nalu, who alerted to the presence of a
controlled substance in the car. All three suspects were then
arrested for promotion of a dangerous drug in the third degree.
The police obtained a search warrant to search the car.
Officers found a bag containing a digital scale, two cut straws,
two zip packets containing a crystal-like substance which tested
positive for methamphetamine, seven empty unused zip packets, and
numerous pieces of mail addressed to Alvarez.
Alvarez was charged with four counts on June 13, 2011.
Count 1 alleged Promoting a Dangerous Drug in the Third Degree.
Count 2 alleged Prohibited Acts Related to Drug Paraphernalia.
Count 3 alleged Driving without a License. Count 4 alleged
Conditions of Operation of and Registration of Motor Vehicles,
“commonly referred to as No No-fault Insurance”.
B. Motion to Suppress
On February 8, 2012, Alvarez filed a motion to suppress
evidence. Alvarez requested that the court suppress all evidence
that was collected as a result of the canine screen of his car,
on the ground that it had been obtained in violation of the
Fourth Amendment of the U.S. Constitution and article I, section
7 of the Hawai#i Constitution.
Alvarez argued that the circuit court should suppress
the evidence for two reasons. First, Alvarez argued that the
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police officers improperly expanded the scope of the traffic stop
into an unrelated drug investigation when they called for a
canine screen without “specific and articulable facts” that gave
them reasonable suspicion of any drug-related criminal activity.
Alvarez argued that although Officer Souki had allegedly heard
that Alvarez was involved in drug distribution, Officer Souki
stated this was from a confidential informant, and therefore that
it was “non-specific” and “non-articulable.”
Second, Alvarez argued that the police officers
improperly extended the length of time to issue the traffic
citations to allow time for the canine screening unit to arrive.
Alvarez argued that police officers may detain defendants no
longer than is “absolutely necessary under the circumstances,”
and that at a hearing, he would be able to prove that the
officers improperly extended the length of time it took to issue
the traffic citations. As such, Alvarez argued that “all
evidence in the instant matter that was collected based upon the
improper canine screen of Defendant’s motor vehicle should be
suppressed.”
On April 5, 2012, the circuit court held a hearing on
Alvarez’s motion to suppress.4 At the hearing, Alvarez called as
witnesses Officers Souki and Reis, and Detectives Bello and
4
The transcript of this hearing in the record is dated April 5,
2011. However, this date is before Alvarez’s motion to suppress was filed,
and before he was even arrested. In his opening brief and application,
Alvarez states the hearing was held on April 5, 2012. It thus appears that
the year on the transcript is in error, and should be 2012.
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Fukuda.
1. Officer Souki’s testimony
Officer Souki testified to the following. On June 9,
2011, he, Detective Fukuda, Detective Bello, and Officer Moniz
were conducting traffic enforcement. Detective Fukuda observed a
car in which a female passenger was not wearing a seatbelt, and
Detective Bello stopped the car. After the car had been stopped,
Officer Souki contacted Officer Reis by phone to do a canine
screening on the vehicle because Officer Souki recognized Alvarez
from prior contacts with him, and because he had received
information within the past five days from a “[r]eliable
confidential informant” that Alvarez was dealing crystal
methamphetamine.
However, Officer Souki could not recall having been
given any information that Alvarez would be conducting drug
transactions specifically on the day of Alvarez’s arrest.
Officer Souki also testified that he did not notice Alvarez in
possession of any drugs or drug paraphernalia prior to calling
Officer Reis. When the dog alerted to the presence of drugs,
Officer Souki arrested all three occupants of the car.
2. Detective Fukuda’s testimony
Detective Fukuda’s testimony regarding the initial stop
of Alvarez’s car corroborated that of Officer Souki. Detective
Fukuda also testified that he called Officer Reis’s cell phone
after he had been informed of the identity of the vehicle’s
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occupants, but that he did not observe any criminal activity
other than the seatbelt violation.5
3. Detective Bello’s testimony
Detective Bello testified that while he was issuing
citations to Alvarez and Kama, they were not free to leave.
Detective Bello testified that he had, within a week prior to the
arrests, obtained information from a confidential informant that
Kama was involved in drug distribution. However, Detective Bello
had not received any information that Alvarez, Kama, or Mamone-
McKeague would be in possession of any drugs specifically on
June 9, 2011, and he did not observe any drugs or drug
paraphernalia in the car.
4. Officer Reis’s testimony
Officer Reis testified that he was at the police
station when he was called by Officer Souki at approximately 3:30
p.m. on June 9, 2011. He was also called again sometime later by
Detective Fukuda. Officer Reis stated that aside from the canine
alert, Officer Reis did not see any other signs of drugs or drug
paraphernalia in the car.
After Officer Reis had testified, defense counsel
indicated that he had been attempting to track down and subpoena
both Kama and Mamone-McKeague as witnesses, but so far had been
5
Detective Fukuda stated that, prior to the traffic enforcement
operation on June 9, 2011, Detective Fukuda had asked Officer Reis to be
available if needed–-not because he necessarily expected to encounter any
individuals sought by vice, but because if such a situation should arise, “a
dog screen or a canine is always a big tool in our investigations.”
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unsuccessful.6 The circuit court then scheduled a further
hearing for May 11, 2012.
5. May 11, 2012 hearing
On April 12, 2012, at Alvarez’s request, the clerk of
the Third Circuit Court issued subpoenas for Kama and McKeague to
testify at the May 11, 2012 hearing.
On May 11, 2012, the parties appeared before the
circuit court for the continued hearing on Alvarez’s motion to
suppress. Before any witnesses testified, the parties stipulated
into evidence exhibits 16 and 17, which were Officer Reis’s cell
phone records. These records showed that Officer Reis received
two calls from Detective Fukuda: one at 3:31 p.m. and one at
3:42 p.m, and that Officer Souki called Officer Reis once, at
3:31 p.m.
Additionally, Detective Bello testified again to
clarify his testimony at the prior hearing. Detective Bello
testified that his statement at the April 5, 2012 hearing that he
had “utilized the confidential informant to conduct a controlled
purchase from Jaclyn Kama a week prior” was not correct. He
stated that, after checking his records, he realized the
controlled purchase from Kama actually occurred approximately one
month before Alvarez’s arrest.7
6
Subpoenas for Kama and Mamone-McKeague were issued on March 20,
2012 for the April 5, 2012 hearing.
7
At the May 11, 2012 hearing, there was also testimony from
Lieutenant Randall Ishii, the custodian of records for HCPD, and Roydon
(continued...)
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After the witnesses had testified, defense counsel
discussed with the court whether Alvarez would testify, and the
following exchange occurred:
[DEFENSE COUNSEL]: Your Honor, given the
testimony I have no further questions–-we have no
further testimony except for my client. I’d like a
minute to speak to him whether he would testify or
not.
THE COURT: So is it really a minute or more
than a minute?
[DEFENSE COUNSEL]: I would–-hopefully it’s a
minute. I’ve had several conversations with him about
this in the last couple days.
THE COURT: Okay.
[DEFENSE COUNSEL]: If it’s gonna be more than a
minute I’ll notify the Court as soon as I can.
THE COURT: You’re asking for a recess or you’re
asking to talk to your client?
[DEFENSE COUNSEl]: Just a minute to talk to my
client.
(The defendant and his counsel held a discussion
off the record at 11:40 a.m.)
[DEFENSE COUNSEL]: Your Honor, my client has
advised me that at this point in time he’s not going
to elect to make a statement at this time, Your Honor.
The court did not ask Alvarez or defense counsel any
further questions about Alvarez’s decision not to testify. The
court asked the parties to submit written closing arguments
regarding the motion to suppress, and set a deadline of June 7,
(...continued)
Kobayashi, a police dispatcher for HCPD, who both testified regarding an event
chronology for Alvarez’s arrest on June 9, 2011. This chronology was
consistent with the testimony offered by Detectives Fukuda and Bello, as well
as Officer Souki.
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2012 for these submissions. The court also set a status hearing
on June 25, 2012.
On June 6, 2012, the State filed its opposition to
Alvarez’s motion to suppress. The State first argued that
Alvarez did not have standing to object to the canine screen, and
argued in the alternative that the canine screen was not a
“search.” The State further contended that even if the police
needed reasonable suspicion to conduct the screen, the officers’
prior encounters with the vehicle’s occupants were sufficient to
establish a reasonable suspicion. Finally, the State argued that
even if Alvarez had established a constitutional violation, he
had not established that the evidence at issue should be
suppressed. The State quoted from State v. Fukusaku, 85 Hawai#i
462, 475, 946 P.2d 32, 45 (1997) (“where the connection between
the illegal acts and the discovery of the evidence is so
attenuated that the taint has been dissipated, the evidence is
not a ‘fruit’ and, therefore, is admissible”) in support of its
argument. However, the State provided no further support for its
contention that Alvarez’s “fruit of the poisonous tree” claim
should be rejected based on his failure to establish where the
evidence was located.
On June 7, 2012, Alvarez filed his reply in support of
his motion to suppress. Alvarez argued that the only basis for
the traffic stop was the seatbelt violation, and that the police
officers unconstitutionally expanded this stop into a drug
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investigation when they called Officer Reis to perform the canine
screen. According to Alvarez, any investigation beyond the
traffic infractions had to be “reasonably related in scope” to
the infractions for which Alvarez’s vehicle was stopped, unless
the police had an “independent and reasonable articulable [sic]
suspicion that criminal activity was afoot.” Alvarez contended
that here, the canine screen was an investigation that was not
reasonably related to the traffic stop, and was not based on any
“specific and articulable facts” that would warrant the search.
C. Alvarez’s motion to reopen the initial motion to suppress
On June 25, 2012, the parties appeared before the
circuit court for a status hearing. Apparently, prior to this
hearing, the circuit court had indicated to the parties that it
would deny Alvarez’s motion to suppress. However, the court’s
proposed ruling indicating that it would deny the motion does not
appear to be in the record.8 At the beginning of the hearing,
defense counsel requested that the circuit court reopen Alvarez’s
motion to suppress because the two witnesses he had previously
intended to call–-Kama and Mamone-McKeague–-were now available.
In response to the court’s question as to what the offer of proof
was, defense counsel stated that, based on his discussions with
8
At the June 25, 2012 hearing, defense counsel stated that “I did
get a copy of the court’s decision this morning.” In addition, at a later
hearing on July 18, 2012, the deputy prosecuting attorney stated that “after
the Court indicated what the proposed ruling was, I’ve prepared findings of
fact, conclusions of law, and an order.” Further, in his opening brief to the
ICA and application to this court, Alvarez states when referring to the June
25, 2012 hearing that “the Trial Court had previously indicated it would deny”
the motion.
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the witnesses’ counsel, both witnesses would testify that “from
the time of the arrest to the time that the dog showed up it was
more like 30 minutes,” and that Alvarez had informed him that
“during that time period, the police officers were speaking to
them about other drug investigations.” The court directed
defense counsel to file the motion to reopen the suppression
hearing.
On July 12, 2012, Alvarez filed his motion to reopen
the suppression hearing with an attached declaration of counsel,
in which defense counsel explained that despite three attempts,
he was previously unable to subpoena either witness because of
their involvements as defendants in other criminal prosecutions.
In the declaration, defense counsel stated, as a ground for
reopening the motion:
16. This Honorable Court denied Defendant’s Motion to
Suppress in part on the basis that the canine alert in
the instant case occurred within in [sic] the time
allowed to conduct a traffic investigation, and that
there was no actual drug investigation during that
period, and Defendant believes that witnesses Jacklyn
[sic] Kama and Angelina Mamone-McKeague, who were
subpoenaed for the earlier hearings, but through not
[sic] fault of Defendant, were unable to be served,
will be able to testify in support of his allegations
of grave constitutional violations. However, both
witnesses are currently in custody and [sic]
residential drug treatment on the Big Island, and have
been served, and are currently able to testify in this
matter.
17. Accordingly, Defendant requests to re-open the
portion of the hearing on the Motion to Suppress
regarding the above referenced witnesses’ testimony.
The State filed a response objecting to Alvarez’s
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motion to reopen the hearing. The State argued that Alvarez had
offered no offer of proof for the witnesses and no reasonable
explanation as to why he could not have called Mamone-McKeague as
a witness at the earlier hearing. The State did concede that
“[g]iven that [Kama] was a fugitive from justice” at the time of
the first hearing, Alvarez had provided a reasonable explanation
for being unable to call Kama as a witness at the first hearing.
The State also argued that Alvarez intentionally waited until
after the circuit court had issued its proposed ruling to request
reopening, which was improper “gamesmanship.”
At a hearing on August 3, 2012, the circuit court
indicated that it would grant Alvarez’s motion to reopen the
hearing on his motion to suppress. The parties, and the one
witness who was present at the hearing (Mamone-McKeague), were
ordered to return to court for a further hearing on August 31,
2012.
On August 31, 2012, the parties appeared before the
circuit court for the continued hearing. Kama and Mamone-
McKeague appeared as witnesses.
1. Jaclyn Kama’s testimony
Kama testified that on June 9, 2011, she was a
passenger in Alvarez’s vehicle when it was stopped because she
was not wearing her seatbelt. Regarding the conversations she
had with the officers during the traffic stop, Kama testified
that Officer Souki asked her “about a prior incident that
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involved me before,” and then acknowledged that the incident was
“related to a prior drug contact[.]” Kama also stated that she
spoke to Detective Bello, and asked him why it was taking so long
to write the ticket. In response, Detective Bello told Kama that
the officers were “waiting for a ticket book” because they had
run out of tickets.
2. Angelina Mamone-McKeague’s testimony
Mamone-McKeague also testified that on June 9, 2011,
she was in Alvarez’s vehicle when it was stopped by police
officers. Mamone-McKeague stated that the only conversation she
heard between the officers and the vehicle’s occupants was that
one of the officers told Alvarez to take the key out of the
ignition and that they had been stopped for a seatbelt violation.
3. Alvarez’s request to testify
After Kama and Mamone-McKeague had testified, Alvarez,
through counsel, requested to be allowed to testify: “Your
Honor . . . Mr. Alvarez, although he didn’t speak at the earlier
motion to suppress, based upon the testimony of the last two
witnesses, he would like to, um, invoke his right to speak at
this . . . to testify at this particular hearing.” The State
objected on the grounds that the court had reopened the motion to
suppress only to allow the two witnesses to testify, Alvarez had
a full and fair opportunity to testify at the initial hearing,
which he declined, and that his request to testify now was
gamesmanship. Defense counsel argued that Alvarez had intended
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to testify “from the beginning” and had only changed his mind
because of the unavailability of Kama and Mamone-McKeague. As an
offer of proof, defense counsel stated:
Your Honor, my understanding, speaking to him, the
offer of proof would be . . . Alvarez would testify
that he was the driver when the vehicle was pulled
over. That the vehicle was pulled over for, uh,
approximately thirty minutes before, um, any, uh, drug
screening. An arrest was made for him that, in his
experience, uh, that time was far in excess of what is
normally, um, used to uh, issue a ticket. He would
also state that, um, Officer Bello, he believes, did
engage, um, him in conversation, uh, regarding, uh,
didn’t he know that Jaclyn Kama, uh, I guess the whole
vehicle, but he felt it was addressed to him, was why
was Jaclyn Kama out, her husband had just been
arrested for two eight balls.[9] He would also testify
as to specific acts that occurred that, uh, buttress
his belief as to the length of time that this took
place.
After the State again objected, the circuit court
indicated that it would not allow Alvarez to testify:
THE COURT: . . . [W]e’re supposed to reopen it
just for the testimony of these two witnesses so, you
know–-
[DEFENSE COUNSEL]: I understand that that is
what my specific motion did state, but I would just
make the record that, um, these were two key
witnesses that would, um, rebut the police officer’s
testimony in this particular case. And my client had
intended to testify, until the point in time where he
didn’t have these witnesses.
THE COURT: All right. So I don’t–-I don’t
think I will allow Mr. Alvarez to testify at this
juncture, because it was supposed to have been a
limited reopening, was my impression. So you got what
you wanted in terms of the specific motion, and I
think that should be the extent of it.
9
An “eight ball” commonly refers to a unit of measurement for
narcotics equaling one-eighth of an ounce. See State v. Miyashiro, 90 Hawai#i
489, 491, 979 P.2d 85, 87 (App. 1999).
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After hearing brief arguments from each side, the
circuit court indicated to the parties that it would not change
its prior decision to deny Alvarez’s motion to suppress: “I
don’t see anything that would change my mind, at this juncture,
about the court’s prior ruling, so I’ll let that stand.”
On September 19, 2012, the circuit court entered its
“findings of fact, conclusions of law denying defendant’s motion
to suppress evidence” and order. The circuit court made the
following findings of fact (FOFs):
1. On June 9, 2011 Defendant was the driver of
a vehicle stopped by police because a passenger in his
vehicle, Jaclyn Kama, was not wearing her seatbelt.
2. Police subsequently learned that Defendant
did not have a valid driver’s license.
3. Due to his lack of a driver’s license,
Defendant was unable to legally drive the vehicle away
from the location of the traffic stop.
4. After recognizing the persons in the
automobile as being known drug users, officers at the
scene of the traffic stop called for a narcotic
detection canine to screen the vehicle.
5. The narcotic canine screen alerted to the
presence of illegal drugs within the vehicle prior to
Detective Tod Bello completing the traffic citations.
6. After Officer David Reis brought the
narcotic detection canine from the police station to
the scene of the traffic stop, the canine screen
itself took approximately ten seconds before there was
an alert.
7. The initial detention of Defendant and the
vehicle was only to the degree necessary to issue
traffic citations.
8. The narcotic detection canine did not enter
the vehicle, and sniffed only the airspace surrounding
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the vehicle.
[8a. No law enforcement officer asked the
occupants of the stopped vehicle any questions
regarding the possession or use of illegal drugs prior
to the narcotic canine alert.]10
9. The canine screen took place during an
otherwise valid detention for the traffic violations.
10. The presence of the narcotic canine was
not, under the circumstances of this case, so
embarrassing or intrusive as to constitute a search
under the Hawai#i or United States constitutions.
11. The use of the narcotic canine was not
unreasonable or abusive in this case.
The circuit court then made the following conclusions
of law (COLs):
1. The stop of Defendant’s vehicle was valid at
its inception.
2. Police did not need independent reasonable
suspicion to conduct the narcotic canine screen on
Defendant’s vehicle. State v. Snitkin, 67 Haw. 168,
171 (1984).
3. Once the narcotic canine alerted to the
presence of illegal drugs within the vehicle, police
had probable cause to arrest the occupants of the
vehicle pending the application for a search warrant.
4. The narcotic canine screen did not
constitute an unreasonable search, as generally a
canine sniff around the airspace of a closed container
is not a “search” under the United States and Hawai#i
constitutions. State v. Snitkin, 67 Haw. 168, 171
(1984).
5. Suppression is not warranted in this case.
D. Plea, conviction, and sentencing
On September 7, 2012, Alvarez entered a conditional no
10
Paragraph 8a was added as a change to the FOFs, COLs and order,
and thus appears at the end of the document, after the order.
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contest plea to promotion of a dangerous drug in the third
degree, in exchange for the State dismissing all other counts and
mitigation of his mandatory minimum term to time served. The
circuit court entered its judgment of conviction and sentence on
September 17, 2012, sentencing Alvarez to five years imprisonment
with credit for time served.
E. Appeal to the ICA
Alvarez filed a notice of appeal from the circuit
court’s order denying his motion to suppress evidence.
In his opening brief, Alvarez argued that the circuit
court erred in denying his motion to suppress because (1) the
police officers had no “specific and articulable facts” that
warranted expanding the traffic stop into a drug investigation;
(2) the police improperly extended the time of the traffic stop;
and (3) the circuit court erred when it denied him his right to
testify on his own behalf.
The ICA issued a memorandum opinion, concluding that
the circuit court did not err in denying Alvarez’s motion to
suppress.
First, the ICA reasoned that the canine screen of
Alvarez’s car was not a “search” because an individual has no
reasonable expectation of privacy in the airspace around his or
her vehicle, relying on Snitkin, 67 Haw. at 171, 681 P.2d at 983.
Second, the ICA held that there was no “separate seizure” of
Alvarez beyond the legitimate traffic stop, and further that the
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length of the stop did not violate Alvarez’s constitutional
rights. Finally, the ICA held that the circuit court did not
abuse its discretion in denying Alvarez’s request to testify at
the reopened hearing. Relying on two cases which held that
defendants’ rights to testify were not violated when courts
denied their requests to testify at reopened suppression
hearings, United States v. Childress, 721 F.2d 1148 (1982) and
People v. Peterson, 777 N.Y.S.2d 48 (App. Div. 2004), the ICA
concluded that “a trial court’s refusal to allow a defendant to
reverse field and request to testify during a reopened hearing is
not a violation of a defendant’s constitutional rights.” The ICA
affirmed the circuit court’s judgment of conviction and sentence.
Alvarez timely filed his application for writ of
certiorari, presenting the following two questions:
A. Did the [ICA] gravely err in its denial of
[Alvarez’s] Motion to Suppress on the grounds
that (a) the canine screen was not a “search”,
and (b) that there was no separate seizure of
Alvarez?
B. Did the ICA gravely err in its decision that the
Circuit Court did not abuse its discretion in
denying Alvarez’s request to testify at the
reopened suppression hearing?
II. Standards of Review
A. Denial of motion to suppress
We review a circuit court’s findings of fact in a
pretrial ruling according to the following standard:
Appellate review of factual determinations
made by the trial court deciding pretrial
motions in a criminal case is governed by
the clearly erroneous standard. A finding
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of fact is clearly erroneous when (1) the
record lacks substantial evidence to
support the finding, or (2) despite
substantial evidence in support of the
finding, the appellate court is
nonetheless left with a definite and firm
conviction that a mistake has been made.
State v. Okumura, 78 Hawai#i 383, 392, 894 P.2d 80, 89
(1995) (citations and internal quotation marks
omitted). “The circuit court’s conclusions of law are
reviewed under the right/wrong standard.” State v.
Pattioay, 78 Hawai#i 455, 459, 896 P.2d 911, 915
(1995) (citation omitted). Furthermore,
. . . the proponent of a motion to suppress has
the burden of establishing not only that the
evidence sought to be excluded was unlawfully
secured, but also, that his or her own Fourth
Amendment rights were violated by the search and
seizure sought to be challenged.
State v. Abordo, 61 Haw. 117, 120-21, 596 P.2d 773,
775 (1979) (citation and footnote omitted) . . . . The
proponent of the motion to suppress must satisfy this
“burden of proof by a preponderance of the evidence.”
Pattioay, 78 Hawai#i at 466, 896 P.2d at 922 . . .
(citation omitted).
State v. Anderson, 84 Hawai#i 462, 466-67, 935 P.2d 1007, 1011-12
(1997) (brackets and emphases omitted).
III. Discussion
We agree with Alvarez that the circuit court erred in
denying his motion to suppress.11 For the reasons discussed
below, we conclude that the use of the canine screen was not
“reasonably related in scope to the circumstances which justified
the interference in the first place.” State v. Perez, 111
11
Alternatively, Alvarez argues that the circuit court erred when it
denied his request to testify at the reopened hearing. In light of our
disposition, it is unnecessary to resolve this question, and accordingly, the
ICA ruling as to this issue is also vacated.
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Hawai#i 392, 397, 142 P.3d 1039, 1044 (2006). Consequently, the
evidence of contraband recovered from Alvarez’s vehicle was
unlawfully obtained. Accordingly, we vacate Alvarez’s conviction
and sentence.
A. The permissible scope of investigative detentions
“A stop of a vehicle for an investigatory purpose
constitutes a seizure within the meaning of the constitutional
protection against unreasonable searches and seizures.” State v.
Estabillio, 121 Hawai#i 261, 270, 218 P.3d 749, 758 (2009).
Whether a seizure pursuant to an investigative stop is
reasonable depends on the application of a two-part inquiry that
was first articulated by the U.S. Supreme Court in Terry v. Ohio,
392 U.S. 1, 19-20 (1967), and later adopted by this court in
State v. Perez, 111 Hawai#i at 397, 142 P.3d at 1044. If the
police action fails to satisfy both parts of the Perez test, the
evidence originating from that unlawful action must be
suppressed. See Estabillio, 121 Hawai#i at 273, 218 P.3d at 762.
As to the first part of the Perez test, the court must
determine “whether the action was justified at its inception.”
Id. “To justify an investigative stop, . . . the police officer
must be able to point to specific and articulable facts which,
taken together with rational inferences from those facts,
reasonably warrant that intrusion.” State v. Barnes, 58 Haw.
333, 338, 568 P.2d 1207, 1211 (2011) (internal quotations and
citations omitted).
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It is well settled that an investigative stop based on
an officer’s observation of an apparent traffic violation
satisfies the first part of the Perez test. See Estabillio, 121
Hawai#i at 273, 218 P.3d at 761 (noting that a fraudulent
registration sticker and speeding provided valid justification
for traffic stop); State v. Kaleohano, 99 Hawai#i 370, 378, 56
P.3d 138, 146 (2002) (observing that initial traffic stop was
appropriate where defendant was seen swerving and crossing the
double center line). Here, Alvarez was initially stopped for a
traffic violation because his passenger was not wearing a
seatbelt. Accordingly, Alaverz’s initial detention was
“justified at its inception.” Perez, 111 Hawai#i at 397, 141
P.3d at 1044.
It is the second part of the Perez test that is at
issue here. Under that part, the court must determine “whether
the search as actually conducted was reasonably related in scope
to the circumstances which justified the interference in the
first place.” Id. (citation and internal quotation marks
omitted). This scope may be exceeded in either of two ways.
First, any “temporary investigative detention” such as a traffic
stop must be “truly temporary,” i.e., it must “last no longer
than is necessary to effectuate the purpose of the detention.”
Estabillio, 121 Hawai#i at 270, 218 P.3d at 758. Second, the
subject matter and intensity of the investigative detention must
be limited to that which is justified by the initial stop. See
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id. at 271-72, 218 P.3d at 759-60 (initiation of an unrelated
drug investigation when defendant was pulled over for a traffic
infraction violated defendant’s constitutional rights); see also
State v. Goudy, 52 Haw. 497, 502, 479 P.2d 800, 804 (1971);
Kaleohano, 99 Hawai#i at 378-79, 56 P.3d at 146-47; State v.
Kaluna, 55 Haw. 361, 369, 520 P.2d 51, 58-59 (1974).
In this case, we hold that the investigation regarding
Alvarez’s alleged involvement with drugs was not reasonably
related to the initial stop for the traffic offense, and was thus
a separate and unrelated investigation that required independent
reasonable suspicion. See Estabillio, 121 Hawai#i at 273, 218
P.3d at 761; Kaleohano, 99 Hawai#i at 379, 56 P.3d at 147; State
v. Bolosan, 78 Hawai#i 86, 92, 890 P.2d 673, 679.
B. The canine screen that led to Alvarez’s arrest was not
reasonably related in scope to the original traffic stop
Alvarez argues that the evidence recovered was
impermissibly obtained in violation of his constitutional rights.
He contends that this case is similar to Estabillio, in which a
defendant who was pulled over for traffic infractions was also
obliged to undergo a canine narcotic screen that led to the
discovery of drugs. 121 Hawai#i at 265, 218 P.3d at 753-54.
Alvarez contends that, as in Estabillio, the police officers
stopped his car for a traffic violation and then expanded the
stop into a drug investigation that was not reasonably related in
scope to the traffic stop or justified by any specific or
articulable facts. For the reasons stated below, we agree.
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In Estabillio, Vice Officer Brian Prudencio called
traffic enforcement Officer Robert Pauole to request assistance
with a traffic stop of Estabillio. Id. at 263, 218 P.3d at 751.
Officer Prudencio informed Officer Pauole that Estabillio’s car
registration sticker was expired, and told him that he believed
there were drugs in the car. Id. Officer Pauole testified that
he understood that the plan was for him to stop the car for the
expired registration sticker, and that vice officers would then
arrive to conduct a drug investigation. Id. at 263-264, 218 P.3d
at 751-52. When Officer Pauole pulled over Estabillio, Officer
Prudencio and other vice officers arrived at the scene. Id.
Upon arrival, Officer Prudencio told Estabillio that a
confidential informant had advised him that Estabillio was a mid-
level cocaine dealer. Id. at 265, 218 P.3d at 753. Officer
Prudencio then called Officer Kenneth Quiocho to the scene to
conduct a canine screen of Estabillio’s car. Id. When the dog
arrived, it alerted the officers to the presence of a controlled
substance in the car. Id. at 265, 218 P.3d at 753-754.
The circuit court denied Estabillio’s motion to
suppress. Id. at 267-268, 218 P.3d at 755-756. On appeal, this
court applied the two-part test from Perez. While the traffic
stop for speeding and an expired registration was “clearly
justified at its inception,” we held that the separate drug
investigation of Estabillio was not “reasonably related in scope”
to the initial stop. Estabillio, 121 Hawai#i at 273, 218 P.3d at
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761. This holding was based on the fact that Officer Prudencio
had conducted a “drug investigation” that was “separate and
distinct from the traffic investigation.” Id. at 274, 218 P.3d
at 762.
Here, Alvarez was stopped initially because Detective
Fukuda observed a passenger in Alvarez’s car not wearing a
seatbelt. As in Estabillio, the police officers’ initial stop of
Alvarez was therefore justified at its inception. In addition,
as in Estabillio, the canine screen that led to Alvarez's arrest
was not reasonably related in scope to the circumstances which
justified the original traffic stop.
In Estabillio, Officer Prudencio began to question
Estabillio regarding his involvement with drugs as soon as he
arrived at the scene of the traffic stop. 121 Hawai#i at 265,
218 P.3d at 753. This inquiry was not based on the discernible
presence of any drugs or paraphernalia in the car, but rather on
the assumption that Estabillio was “known to sell drugs” and
information that Officer Prudencio had received from a
confidential informant that Estabillio was “a mid-level cocaine
dealer.” Id. at 266, 218 P.3d at 754. This general information
did not justify initiating an investigation into potential drug
distribution. Id. at 267, 274, 218 P.3d at 755, 762.
Noting the lack of justification for the drug
inquiries, this court then held in Estabillio that “the
investigation regarding Estabillio’s alleged involvement with
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drugs was not reasonably related to the initial stop for the
traffic offenses.” Id. at 273, 218 P.3d at 761 (emphasis in
original). This court determined that the ICA had erred in not
considering the drug-related questioning instigated by Officer
Prudencio in conjunction with the canine screen, and that it was
this separate avenue of investigation that impermissibly expanded
the detention beyond the scope of the original traffic stop:
After the traffic stop occurred, Vice-Officer
Prudencio–-by his own admission–-proceeded to the
scene of the traffic stop to investigate Estabillio
for possible drug dealing, not for traffic offenses.
Upon arrival, Vice-Officer Prudencio approached
Estabillio and began talking to him about drug
dealing, using the words to the effect that Vice
Officer Prudencio “had received information from a
confidential informant saying that [Estabillio] was a
mid-level cocaine dealer.” He then requested that
Estabillio consent to a search of his vehicle. . . .
[S]uch questioning amounted to a separate seizure,
which was independent of and distinct from the traffic
investigation. As such, the ICA’s sole focus on the
canine screen-–without discussion of whether Vice-
Officer Prudencio’s separate drug investigation
constituted a seizure–-was error.
Id. at 272, 218 P.3d at 760 (emphasis in original).
In the instant case, Alvarez was similarly subjected to
an investigation that had no reasonable relation to the initial
traffic stop. Like Estabillio, Alvarez was pulled over for a
traffic infraction and subjected to a canine screen even though
the officers did not notice any drugs or paraphernalia in the
vehicle prior to ordering the canine screen. The screen was
based primarily on information obtained from a confidential
informant that Alvarez was involved in dealing crystal
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methamphetamine. Both Officer Souki and Detective Fukuda
explained that they had obtained reliable information within the
five days preceding the arrest that Alvarez was involved in drug
distribution. However, neither could recall receiving any
information that Alvarez, Kama, or Mamone-McKeague would be
involved in possessing or dealing narcotics on the particular day
of the arrest.
While police officers may investigate matters unrelated
to the original stop if they have an independent basis for
reasonable suspicion to indicate that criminal activity is afoot,
no such basis existed here. The only suggestion that Alvarez was
involved in distributing contraband on the day of his arrest
stemmed from a tip provided by a confidential informant, as well
as police recognition of Alvarez and his passengers from prior
drug-related contexts. As noted in Estabillio, a tip from a
confidential informant under the circumstances here is “not
sufficient to establish reasonable suspicion for an investigatory
detention.”12 Id. at 274, 218 P.3d at 762. Moreover, if police
12
There are, of course, circumstances under which a tip from a
confidential informant can generate reasonable suspicion to support an
investigative stop. Where the informant is known to law enforcement, courts
have considered whether that person had provided reliable information in the
past, or whether there is an adequate factual basis that the person is a
reliable informant. See, e.g., State v. Ward, 62 Hawai#i 459, 461, 617 P.2d
565, 567 (1980); State v. Joao, 55 Haw. 601, 602-04, 525 P.2d 580, 582-83
(1974).
However, the tip here lacked any specificity, only generally
stating that Alvarez was dealing crystal methamphetamine, was provided five
days before Alvarez was stopped, and no drugs were observed in the car.
Furthermore, like in Estabillio, no evidence was presented to establish that
the confidential informant was a reliable informant. 121 Hawai#i at 273-74,
(continued...)
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recognition of Alvarez served as a basis for a separate
investigative detention, any traffic stop could be improperly
utilized to detain individuals based on their previous
misconduct.
In the case at bar, the canine screen that occurred
after the traffic stop was an investigatory act aimed
specifically at the crimes of dealing or possessing narcotics.
Given the complete absence of any reasonable indication that
Alvarez’s vehicle contained illegal contraband, the narcotics
detection screen had no justifiable connection to the seatbelt
violation that warranted the initial detention. Consequently,
the request for and initiation of the drug screen in this case
was unjustified, and such an action subjected Alvarez to the same
kind of “separate, distinct, and unrelated investigation” that
this court deemed constitutionally invalid in Estabillio. Id. at
273, 218 P.3d at 761. Lacking sufficient independent grounds to
expand the stop into a narcotics investigation, the drug screen
was unrelated to the seatbelt infraction. We therefore hold that
the canine screen, as conducted under these circumstances, was an
unreasonable and unlawful expansion of the initial traffic
detention in violation of article 1, section 7 of the Hawai#i
Constitution. See Perez, 111 Hawai#i at 397, 142 P.3d at 1044.
As such, the evidence against Alvarez obtained as a result of the
12
(...continued)
218 P.3d at 761-62. Thus, the tip was not sufficiently reliable to establish
reasonable suspicion for a separate investigation.
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screen must be suppressed as “fruit of the poisonous tree.”
Estabillio, 121 Hawai#i at 274, 218 P.3d at 761 (quoting State v.
Biggar, 68 Haw. 404, 409, 716 P.2d 493, 496 (1986)).
In light of our holding, the ICA incorrectly concluded
that Estabillio is distinguishable from the instant case “because
there was no separate search or seizure of Alvarez during the
traffic stop.” The ICA apparently reasoned “that inquisitive
questioning by law enforcement” was necessary to establish that a
“separate, distinct, and unrelated investigation” took place, and
because the circuit court found “that no police officer
questioned the vehicle occupants about possession or use of
illegal drugs prior to the canine alert,” there was no separate
investigation.
However, we did not require “inquisitive questioning by
law enforcement” in Estabillio. In Estabillio, we held that the
subsequent drug investigation was separate and distinct from the
traffic investigation inasmuch as it was not “reasonably related
in scope to the circumstances which justified the interference in
the first place. Estabillio, 121 Hawai#i at 273, 218 P.3d at 761
(applying Perez, 111 Hawai#i at 397, 141 P.3d at 1044). Here,
law enforcement brought the canine to the scene of the traffic
stop to investigate Alvarez for possible drug dealing that was
unrelated to the traffic offenses that justified the initial
stop. Under Perez, this became a “separate, distinct, and
unrelated investigation” that required reasonable suspicion.
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Appropriately applied, Estabillio is directly applicable to the
facts of this case.
Finally, citing to State v. Snitkin, the ICA concluded
that the manner of the canine screen did not unreasonably intrude
on Alvarez’s privacy interests. However, Snitkin is
distinguishable from the instant case. In Snitkin, a Drug
Enforcement Agency canine was patrolling a Federal Express cargo
area to detect packages carrying narcotics. The dog alerted his
handler to a package addressed to Alan Snitkin as possibly
containing contraband. 67 Haw. at 169-70, 681 P.2d at 982.
Based on this identification, the officer obtained a search
warrant, opened the package, and confirmed that it contained
cocaine. Id. at 170, 681 P.2d at 982. The officer then resealed
the package, allowed Snitkin to pick up the package, and arrested
him. Id. This court held that the dog’s sniff of the airspace
around the package did not constitute a search and we reversed
the circuit court’s suppression order. Id. at 171-72, 681 P.2d
at 983.
In Snitkin, we specifically noted that the packages
were not detained. By contrast, the use of the canine here was
for the purpose of conducting an entirely separate investigation
unrelated to the initial traffic stop, and thus constituted a
distinct seizure that was not supported by any independent
reasonable suspicion of current drug activity. Accordingly, the
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canine drug screen of the outside of Alvarez’s vehicle was
impermissible.
IV. Conclusion
We hold that the canine screen was an unlawful seizure
that was not reasonably related in scope to the circumstances
which justified police involvement in the first place.
Therefore, it violated Alvarez’s rights under article I, section
7 of the Hawai#i Constitution. Accordingly, we vacate (1) the
ICA’s May 7, 2015 judgment on appeal, and (2) the circuit court’s
September 17, 2012 judgment of conviction and sentence, and
remand for further proceedings consistent with this opinion.
Justin P. Haspe /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Shaunda A.K. Liu
for respondent /s/ Sabrina S. McKenna
/s/ Richard W. Pollack
/s/ Michael D. Wilson
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