Driver's Drug Past Didn't Justify Bringing in Drug Dog

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By Lance J. Rogers

July 5 — Officers who stopped a car for a seat belt violation lacked sufficient cause to call a drug-sniffing dog even though the cops recognized the driver as a known drug user and had received a tip five days earlier that he was dealing methamphetamine, the Hawaii Supreme Court ruled June 30 ( State v. Alvarez, Haw., 2016 BL 211663, No. SCWC-12-0000838, 6/30/16 ).

The case is significant because the court found a state constitutional violation despite the fact that the officers were still writing tickets for the seat belt infraction—and the driver's failure to produce valid license and insurance documentation—when the canine unit arrived.

Under Rodriguez v. United States, No. 13-9972, 2015 BL 112765 (U.S. April 21, 2015) there is no Fourth Amendment violation when the canine sniff occurs within the normal time needed to handle the matter for which the stop was made.

Timing Isn't Everything

At oral argument, the justices appeared skeptical of the state's claim that all dog sniffs would be constitutional for any detention so long as the cops got the canine to the scene of the traffic stop and the motorist wasn't detained any longer than would be necessary to complete the normal paperwork and traffic investigation.

That skepticism manifested itself in the opinion, where the court steered clear of any suggestion that the dog sniff would be constitutional so long as there was no inordinate delay.

Instead, it ruled that Article I, Section 7 of the Hawaii Constitution, which specifically forbids unreasonable “invasions of privacy” as well as unreasonable searches and seizures, prohibits any escalation of the investigation that isn't supported by strong independent evidence of criminal activity.

The only suggestion that Elujino V. Alvarez III was involved in drug distribution on the day of his arrest was a confidential informant's tip from five days earlier and police recognition of Alvarez and one of his passengers, the court said in an opinion by Chief Justice Mark E. Recktenwald.

But that information doesn't rise to the level of reasonable suspicion justifying a separate criminal inquiry, the court said.

If that could serve as the basis for a separate investigative detention, it said, “any traffic stop could be improperly utilized to detain individuals based on their previous misconduct.”

The County of Hawaii Prosecutor's Office represented the state. Justice P. Haspe, Hilo, Hawaii, argued on behalf of Alvarez.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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