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State v. Alvarez

Supreme Court of Hawaii

June 30, 2016

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
ELUJINO V. ALVAREZ, III, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-12-0000838; CR. NO. 11-1-0216)

          Justin P. Haspe for petitioner.

          Shaunda A.K. Liu, for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          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 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.

         I. Background

         The following factual background is taken from the record on appeal.

         A. Alvarez's Arrest and Indictment [2]

         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 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 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

          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 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 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]

          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 ...

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