TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000838; CR.
P. Haspe for petitioner
Shaunda A.K. Liu for respondent
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
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 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.
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.
filed a motion to suppress that evidence, which was denied by
the circuit court. Alvarez entered a conditional no contest
plea, and was convicted and sentenced for promotion of a
dangerous drug in the third degree.
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.
following factual background is taken from the record on
Alvarez's Arrest and Indictment
9, 2011, Officer Brian Souki, Detective Paul Fukuda, and
Detective Tod Bello were performing traffic enforcement in
Hilo. 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.
stopping the vehicle, Detective Bello began issuing citations
to Alvarez for driving without a valid license 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
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.
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
Motion to Suppress
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.
argued that the circuit court should suppress the evidence
for two reasons. First, Alvarez argued that the 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."
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."
April 5, 2012, the circuit court held a hearing on
Alvarez's motion to suppress. At the hearing, Alvarez
called as witnesses Officers Souki and Reis, and Detectives
Bello and Fukuda.
Officer Souki's testimony
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.
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.
Detective Fukuda's testimony
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 occupants, but that he did not
observe any criminal activity other than the seatbelt
Detective Bello's testimony
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.
Officer Reis's testimony
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.
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
unsuccessful. The circuit court then scheduled a further
hearing for May 11, 2012.
11, 2012 hearing
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.
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.
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
the witnesses had testified, defense counsel discussed with
the court whether Alvarez would testify, and the following
[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 COUNSE1]: Just a minute to talk to my client.
(The defendant and his counsel held a discussion off the