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.

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