This decision is published in table format in the Pacific and Hawai'i reporter.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT. (CR. NO. 11-1-216).
William B. Heflin, Brian J. De Lima (Crudele & De Lima), for Defendant-Appellant.
Jason M. Skier, Deputy Prosecuting Attorney, County of Hawai'i, for Plaintiff-Appellee.
Foley, Presiding Judge, Fujise and Ginoza, JJ.
Defendant-Appellant Elujino V. Alvarez, III (Alvarez) appeals from a Judgment of Conviction and Sentence (Judgment) entered September 17, 2012, in the Circuit Court of the Third Circuit (circuit court). Judgment was entered against Alvarez pursuant to a conditional " No Contest Plea" to Count 1, Promotion of a Dangerous Drug in the Third Degree in violation of Hawaii Revised Statutes (HRS) § 712-1243(1) (2014), which preserved Alvarez's appeal of the circuit court's denial of a motion to suppress.
On appeal, Alvarez contends the circuit erred in (1) denying his motion to suppress because there were no " specific and articulable" facts during the initial traffic stop in this case justifying its expansion into a simultaneous drug investigation; (2) denying his motion to suppress because the traffic stop was improperly extended to allow a canine team to arrive and screen the vehicle; and (3) denying his right to testify after granting his motion to reopen the suppression hearing.
For the reasons discussed below, we affirm.
On June 13, 2011, the State charged Alvarez by complaint with four counts: Count 1, Promoting a Dangerous Drug in the Third Degree; Count 2, Prohibited Acts Related to Drug Paraphernalia in violation of HRS § 329-43.5 (2010); Count 3, Driving Without a License (DWOL) in violation of HRS § 286-102(b) (Supp. 2011); and Count 4, Conditions of Operation and Registration of Motor Vehicles in violation of HRS § 431:10C-104(a) (2005).
On February 8, 2012, Alvarez filed a Motion to Suppress Evidence, alleging that crystal methamphetamine and drug paraphernalia discovered in his car were the fruits of an unlawful search. In denying Alvarez's motion, the circuit court made the following findings of fact (FOF):
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 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.]
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 ...