The circuit court's determinations that police officers had subjected Ketchum to "custodial interrogation," on two separate occasions, absent the warnings required by article I, section 10 of the Hawai'i Constitution (1982), quoted infra in section III, and, on a third occasion, in disregard of Ketchum's invocation of his right to remain silent, constitute conclusions of constitutional law, which, consequently, this court reviews de novo on appeal, under the "right/wrong" standard; to the extent that these conclusions of law implicate constitutional questions, this court freely "exercise[s] [its] own independent constitutional judgment, based on the facts of the case." State v. Ah Loo, 94 Haw. 207, 209, 10 P.3d 728, 730 (2000) (citations omitted). III. DISCUSSION

The self-incrimination clause of article I, section 10 of the Hawai‘i Constitution ensures that "a police officer may not undermine a person's privilege against compelled self-incrimination by subjugating his or her will to that of examining police officer." State v. Ah Loo, 94 Hawai‘i 207, 210, 10 P.3d 728, 731 (2000). This privilege "provides us with some of our most treasured protections — preservation of our autonomy, privacy, and dignity against the threat of state action."

The self-incrimination clause of article I, section 10 of the Hawai'i Constitution ensures that "a police officer may not undermine a person's privilege against compelled self-incrimination by subjugating his or her will to that of examining police officer." State v. Ah Loo, 94 Hawai'i 207, 210, 10 P.3d 728, 731 (2000). This privilege "provides us with some of our most treasured protections - preservation of our autonomy, privacy, and dignity against the threat of state action."

Miranda warnings must be given when a defendant is (1) in custody, and (2) under interrogation. State v. Ah Loo, 94 Hawai'i 207, 210, 10 P.3d 728, 731 (2000); see Uchima, 147 Hawai'i at 84, 464 P.3d at 872. "Custodial interrogation for Miranda purposes means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."

It should be noted that Blackshire is cited as authority for each of the circuit court's seven COLs. On September 27, 2000, the same day that the circuit court issued its FOFs, COLs, and order granting the defendants' motion to suppress, this court published its opinion in State v. Ah Loo, 94 Hawai`i 207, 10 P.3d 728, reconsideration denied, 94 Haw. 207, 10 P.3d 728 (2000), wherein "we overrule[d] Blackshire to the extent that it stands for the proposition that, as a per se matter, a person is `in custody' the moment he or she has been `seized.'" Id. at 211, 10 P.3d at 732.

It is settled in Hawai`i that "the requirement of Miranda warnings is triggered by '[t]wo criteria': '(1) the defendant must be under interrogation; and (2) the defendant must be in custody.'" State v. Ah Loo, 94 Haw. 207, 210, 10 P.3d 728, 731 (2000) (quoting State v. Kauhi, 86 Haw. 195, 204, 948 P.2d 1036, 1045 (1997) (quoting State v. Blanding, 69 Haw. 583, 586, 752 P.2d 99, 100 (1988))). Inasmuch as Officer Vickers subjected Cleveland to "express questioning," Cleveland was "interrogated."

See State v. Ketchum, 97 Hawai'i 107 , 114 n. 26, 34 P.3d 1006 , 1013 n. 26 (2001). In Ketchum, this court considered whether the principle announced in State v. Ah Loo, 94 Hawai'i 207 , 10 P.3d 728 (2000), constituted a new rule. Ah Loo held that Miranda warnings must be administered “once a detainee becomes expressly or impliedly accused of having committed a crime—because the totality of the circumstances reflects either that probable cause to arrest the detainee has developed or that the officer’s questions have ‘become sustained and coercive.’”

Under the circumstances, the supreme court concluded that Miranda warnings were not required before the defendant was asked if she had been drinking. Id.; see also State v. Ah Loo, 94 Hawai'i 207, 211, 10 P.3d 728, 732 (2000) (a defendant is not in custody merely before he or she has been seized in conjunction with a traffic stop).

Id. at 301, 687 P.2d at 550. Under the circumstances, the supreme court concluded that Miranda warnings were not required before the defendant was asked if she had been drinking. Id.; see also State v. Ah Loo, 94 Hawai‘i 207, 211, 10 P.3d 728, 732 (2000) (a defendant is not in custody merely before he or she has been seized in conjunction with a traffic stop). The supreme court in Wyatt further concluded that the SFST that the defendant performed was not constitutionally infirm because the test sought only an exhibition of her physical characteristics of coordination, rather than communications or testimony, even though its purpose was to gather evidence of criminal conduct.

Therefore, the “totality of the circumstances” test does not apply to this determination. We recognize (as did the ICA) that this court stated in Ketchum, “[W]hether a police officer has subjected a person to ‘interrogation’ is determined by objectively assessing the ‘totality of the circumstances.’ ” 97 Hawai'i at 119, 34 P.3d at 1018 (citing State v. Ah Loo, 94 Hawai'i 207 , 210, 10 P.3d 728 , 731 (2000); and Ikaika, 67 Haw. at 667 , 698 P.2d at 284 ). The cases cited for the “totality of the circumstances” standard for analyzing whether “interrogation” has taken place do not support the Ketchum court’s statement.