Thursday, October 29, 2009

Canine Sniff, Questioning about Drugs Exceeded Scope of Traffic Stop.

State v. Estabillio (HSC October 26, 2009)

Background. Officer Pauole was contacted by the vice squad for assistance in a traffic stop. On the Big Island, the vice squad officers do not have marked police cars. Vice Officer Prudencio told Pauole that Estabillio was seen driving around Puna with expired registration stickers. Officer Prudencio also believed that Estabillio had drugs in his car. Officer Pauole found Estabillio driving and pulled behind him. According to Officer Pauole, the sticker appeared to be valid. Officer Pauole radioed to verify the stickers and continued following Estabillio. Estabillio started speeding and Officer Pauole activated his lights and sirens. Officer Pauole blocked Estabillio into a driveway.

Officer Pauole asked for license, registration, and insurance. Then Officer Prudencio showed up. Officer Prudencio did not see that Estabillio had drugs. He started questioning Estabillio about certain traffic offenses then started questioning Estabillio about any involvement in drug dealing. Estabillio refused a request to search his vehicle and wanted to speak with a lawyer. Officer Prudencio got a canine search. The dog alerted to the car, Estabillio was arrested and subjected to a pat-down search. After the arrest, came searches based on warrants. In all, police recovered a total of 17.1 grams of cocaine. Estabillio was charged with promoting a detrimental drug in the first degree (HRS § 712-1242(1)(c)). Estabillio's motion to suppress was denied. The circuit court gave an oral ruling and did not issue findings of fact and conclusions of law. The ICA affirmed the denial.

Failure to Issue Written Findings, Conclusions, and Order not Fatal to Appeal. The HSC--in a footnote--addressed the circuit court's failure to issue findings of fact and conclusions of law. The HSC noted that it could proceed and address the merits of Estabillio's appeal because the circuit court indicated its essential findings on the record and was in compliance with HRPP Rule 12(e), which requires the court to "state its essential findings on the record" when factual issues are involved to determine a motion. Thus, the HSC held that the failure to issue written findings and an order were not fatal to Estabillio's appeal. See State v. Kahoonei, 83 Hawai'i 124, 126, 925 P.2d 294, 296 (1996).

Constitutional Investigative Must be Justified and Limited in Scope. An investigative stop of a vehicle is a "seizure" in violation of Article I, section 7 of the Hawai'i Constitution. Kernan v. Tanaka, 5 Haw. 1, 37, 856 P.2d 1207, 1225 (1993). To justify an investigative stop, there must be "specific and articulable facts which . . . [a person] of reasonable caution would be warranted in believing that criminal activity was afoot." State v. Barnes, 58 Haw. 333, 338, 568 P.2d 1207, 1211 (1971). This is the standard from Terry v. Ohio, 392 U.S. 1 (1968). The investigative stop and any search, however, must also be "reasonably related in scope to the circumstances which justified the detention in the first place, and, thus, must be no greater in intensity than absolutely necessary under the circumstances." State v. Kaleohano, 99 Hawai'i 370, 379, 56 P.3d 138, 147 (2002).

The Scope of a Stop. According to the HSC, it was clear that Officer Pauole was justified in stopping Estabillio for speeding and certain information of an expired registration sticker. The HSC, however, held that the subsequent drug investigation exceeded the scope of the initial traffic stop. Questioning by the police can arise to an unconstitutional seizure when "a reasonable person . . . would not have believed that he [or she] was free to ignore the officer's inquiries and walk away." State v. Quino, 74 Haw. 161, 173, 840 P.2d 358, 364 (1992); see also State v. Trainor, 83 Hawai'i 250, 256, 925 P.2d 818, 824 (1996); State v. Kearns, 75 Haw. 558, 567, 867 P.2d 903, 907 (1994); State v. Kachanian, 78 Hawai'i 475, 481, 896 P.2d 931, 937 (App. 1995).

Drug Investigation for a Traffic Stop is Beyond the Scope of the Initial Detention. The HSC stated that it was "undisputed" that after the traffic stop, Officer Prudencio went to the scene to investigate Estabillio about possible drug dealing, not a traffic offense. Officer Prudencio's questioning, according to the HSC, arose to an unconstitutional seizure that was beyond the scope of the initial traffic stop. The HSC noted that nothing was in plain view to alert officers of a drug offense. This, according to the HSC, was "a separate, distinct, and unrelated investigation" that was unconstitutional.

Barros Distinguished. In affirming the denial, the ICA relied on State v. Barros, 98 Hawai'i 337, 48 P.3d 584 (2002). In that case, the HSC held that it was not unconstitutional for a police officer to conduct a warrant check on a person stopped for jaywalking. The HSC distinguished Barros on the grounds that Barros "opined only on the constitutionality of an action (i.e., a warrant check) that did not, in and of itself, amount to a seizure that was separate and distinct from the initial seizure related to the jaywalking offense." The distinction suggests that--in the course of a justified Terry stop--if the officer does something that does not amount to a seizure or a search then there would be no error. Of course, there is a difference between police questioning ala Quino and warrant checks ala Barros.

Independent Reasonable Suspicion Can Save Excessive Search/Seizure. Having held that the drug investigation exceeded the scope of the initial detention, the HSC examined if it could be "supported by independent reasonable suspicion." See State v. Bolosan, 78 Hawai'i 86, 92, 890 P.2d 673, 679 (1995). The HSC held that there was no reasonable suspicion that Estabillio had drugs in his possession at the time of the stop.

Confidential Informant and Nervous Behavior is not Enough. All the evidence showed--according to the HSC--was that Officer Prudencio had information from a confidential source that Estabillio was a "mid-level drug dealer" and that he saw that Estabillio was "very nervous." Information from a "confidential informant" without more is insufficient to establish reasonable suspicion for an investigatory stop. Kachanian, 78 Hawai'i at 480-81, 896 P.2d at 936-37.

And while nervous and evasive behavior may be a factor in determining reasonable suspicion, Illinois v. Wardlow, 528 U.S. 119, 124 (2000), without "other, more[] probative grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists." United States v. Santos, 403 F.3d 1120, 1127 (10th Cir. 2005). The HSC held that the separate drug investigation was not supported by reasonable suspicion and that it was unconstitutional.

Happy Halloween. It must be noted that the night Officer Martin J. McFadden stopped John W. Terry on the streets of Cleveland, Ohio--which changed the interpretation of the Fourth Amendment--was October 31, 1963. Happy Halloween.

Friday, October 2, 2009

Manufacturer has Final say in Foundation for Laser Gun Readings

State v. Assaye (HSC September 30, 2009)

Background. Assaye was charged with excessive speeding (HRS § 291C-105(a)). At his bench trial, Officer Franks testified that with a laser gun he clocked Assaye driving at 90 m.p.h. in a 55 m.p.h. zone. Officer Franks testified that he had been certified to use the laser gun and was trained to use and test the gun. He also said that he conducted four tests on the laser gun to ensure its accuracy. Assaye objected to the foundation of the reading from the laser gun. The trial court overruled the objection. Assaye was found guilty, he appealed, and the ICA affirmed.

So Long Stoa: Manufacturer-Recommended Tests Necessary to Establish Foundation of the Laser Gun Reading. The HSC agreed with Assaye that the State was required to adduce evidence of manufacturer-recommended testing procedures before it could have been admitted at trial. In State v. Stoa, 112 Hawai'i 260, 265, 145 P.3d 803, 808 (App. 2006), the ICA examined the scientific accuracy of a laser gun and held that the laser technology was an accurate and reliable means of measuring speed. In doing so, the ICA also examined the foundational requirements of getting in the laser gun reading, which included the same tests used by Officer Franks.

But according to the HSC, Stoa is "obviously inconsistent" with State v. Manewa, 115 Hawai'i 343, 167 P.2d 336 (2007). In that case, an expert qualified to testify about drug analysis and identification could not testify that the electronic scale he routinely used was accurately calibrated. The Manewa court held that there must be "an established manufacturer's procedure that could be conducted by the user to ensure that the [scales] were in working order according to the manufacturer's specifications." Id. at 354, 167 P.3d at 347. The HSC overruled the foundation analysis in Stoa and held that laser guns, like the scale in Manewa, called for manufacturer-recommended testing procedures. Here, there was no evidence that Officer Frank's laser gun was tested according to manufacturer-recommended procedures.

Manufacturer-Recommended Training also Required. The HSC also extended Manewa to officer training and held that the nature and extent of an officer's training in the operation of the laser gun must also meet the requirements indicated by the manufacturer. See State v. Ito, 90 Hawai'i 225, 244, 978 P.2d 191, 210 (App. 1999). Officer Franks testified that he was certified to use the laser gun and that he was instructed in the testing and operating of the machine through a four-hour class taught by another officer. But this, according to the HSC, was insufficient foundation because it did not show that Officer Franks met the manufacturer's requirements for the operation and use of the laser gun.

Speed was the case. Because the precise speed from the laser gun was a necessary element to the offense of excessive speeding there was no proof beyond a reasonable doubt that Assaye committed the offense. The HSC reversed the conviction.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority that the State needed proof that the laser gun was tested by manufacturer-recommended procedures and that the officer training was also manufacturer-recommended. He wrote separately to note that Manewa "imposes the additional requirement" for the State to show that the device "had been properly calibrated by the manufacturer's service representatives[.]" Manewa, 115 Hawai'i at 354, 167 P.3d at 347. There was insufficient evidence, according to Justice Acoba, establishing that the laser gun in this case had been properly calibrated or turned in for maintenance to a service representative. This was yet another reason--at least for Justice Acoba--to reverse. Justice Acoba wrote for the HSC in Manewa.

A Hefty Burden? So when it comes to devices that are used to record things--be it weight or speed--the foundation requires two things: (1) the device was tested according to manufacturer-recommended procedures; and (2) the user of the device underwent manufacturer-recommended training. Without this foundation, the reading cannot come in. It raises interesting questions about devices and who makes them. There must certainly be a number of devices out there that have no such recommendations or training to operate. What then? Does that mean it that the reading from the device cannot come in at all? Or is that an instance where this foundation is not required? If it's the latter, then it would seem that the police want devices that have manufacturer recommendations. That matter, must be settled on another day.

So What Else is out There? We have seen two cases where this foundation is particularly important: here, in cases of excessive speeding where the precise speed is an essential element and in Manewa where the weight of the drugs was an essential element. What else is out there? It would seem to apply to breath, urine, and blood readings for OUI trials. It may also apply to probation revocation hearings where the basis for the probation violation is a dirty UA. Civil cases may not escape either. In fact, it would seem that whenever there is a device with a reading that constitutes an essential element to an offense or claim, the proponent of the reading has a Manewa-Assaye foundation to overcome.