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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.

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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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