No. SCWC-12-0000838, Thursday, September 3, 2015, 10 a.m.

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

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom 
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:

Brian J. De Lima and Justin P. Haspe

Attorney for Respondent:

Jason M. Skier, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 07/16/15.

COURT: MER, CJ; PAN, SSM, RWP, and MDW, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Petitioner-Appellant Elujino V. Alvarez III (Alvarez) applied for writ of certiorari from the judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its memorandum opinion.

After making a traffic stop, police officers recognized Alvarez and the two other occupants of the car from previous drug-related investigations and called for canine unit to come and conduct a dog sniff of the outside of Alvarez’s car. Between ten and thirty minutes after Alvarez was stopped, the canine unit arrived and conducted the dog sniff. The dog alerted the officers to the presence of drugs, and the officers arrested Alvarez and the other two car occupants. A search of the car uncovered illegal narcotics.

Alvarez was charged with various drug and traffic crimes in the Circuit Court of the Third Circuit (circuit court). Alvarez filed a motion to suppress the evidence found in his car, arguing that the dog sniff was an illegal search in violation of his rights under the U.S. and Hawai`i Constitutions. After hearing testimony from the police officers, the circuit court indicated that it would deny Alvarez’s motion. Alvarez then moved to reopen the suppression hearing because the two other occupants of the car, who were previously unavailable, were now available to testify in support of his motion. The circuit court granted Alvarez=s request to reopen the hearing to allow the two witnesses to testify. After they had testified, Alvarez stated that he wished to testify. The circuit court denied his request and affirmed its decision to deny Alvarez’s motion to suppress. Alvarez then entered a plea of no contest and was convicted.

Alvarez appealed his conviction to the ICA, arguing that the circuit court erred in denying his motion to suppress and request to testify at the reopened suppression hearing. The ICA affirmed Alvarez’s conviction.

In his application, Alvarez presents the following 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?