NO. 28950 – Thursday, September 17, 2009 – 9 a.m.

STATE OF HAWAI`I, Respondent-Plaintiff-Appellant, vs. JON CURTIS ESTABILLIO, JR., Petitioner-Defendant-Appellant.
(Attempted Promoting a Dangerous Drug in the First Degree)

Attorney(s) for Petitioner-Defendant-Appellant(s)
Honorable John M. Tonaki, Public Defender, and Phyllis J. Hironaka, Deputy Public Defender

Attorney(s) for Respondent-Plaintiff-Appellee(s)
Honorable Jay T. Kimura, Prosecuting Attorney, and Jason M. Skier, Deputy Prosecuting Attorney, County of Hawai`i

NOTE: Certificate of Recusal by Mark E. Recktenwald filed 6/24/09.

NOTE: Order assigning Judge Frances Q. F. Wong in place of Recktenwald, recused, filed 6/26/09.

NOTE: Certificate of Recusal by Judge Frances Q. F. Wong filed 8/5/09.

NOTE: Order assigning Judge Sabrina S. McKenna in place of Recktenwald, recused, filed 8/7/09.

COURT: RTYM, CJ; PAN, SRA & JED, JJ. and Circuit Judge Sabrina S. McKenna in place of Recktenwald, recused.

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Brief description:

Petitioner/defendant-appellant Jon Curtis Estabillio, Jr. timely petitioned this court for a writ of certiorari to review the Intermediate Court of Appeals’ (ICA) March 26, 2009 judgment on appeal, entered pursuant to its March 13, 2009 summary disposition order. Therein, the ICA affirmed the Circuit Court of the Third Circuit’s December 28, 2007 judgment, convicting Estabillio of, and sentencing him for — pursuant to his conditional guilty plea — attempted promoting a dangerous drug in the first degree, in violation of Hawai`i Revised Statutes (HRS) §§ 705-500(1)(b) (1993) and 712-1242(1)(c) (Supp. 2009).

Briefly stated, Estabillio was initially stopped for a traffic offense that eventually led to the discovery of drugs on his person and in his vehicle. Estabillio moved to have, inter alia, the drug evidence suppressed on the grounds that the traffic stop was pretextual and that he was subject to an illegal continued detention, which the circuit court denied. Thereafter, Estabillio entered a conditional guilty plea pursuant to a plea agreement with respondent/plaintiff-appellee State of Hawai`i and appealed. The ICA affirmed, relying on this court’s decision in State v Barros, 98 Hawai`i 337, 48 P.3d 584 (2002) (holding that an officer was not prohibited under the constitution from requesting a warrant check in a traffic stop when the check did not prolong the length of time needed to issue the traffic citation).

On application, Estabillio argues, inter alia, that the evidence recovered should have been suppressed because it was obtained in violation of article I, section 7 of the Hawai`i Constitution. Estabillio maintains that the ICA “ignor[ed] undisputed evidence that the stop was pretextual, that the traffic violations investigation had ceased, and that no reasonable suspicion existed to investigate Estabillio for drugs.”