Opinion
SCWC-19-0000563
06-03-2022
STATE of Hawai‘i, Respondent/Plaintiff-Appellant, v. Daniel Irving James MANION, Petitioner/Defendant-Appellee.
Brian R. Vincent for respondent Alen M. Kaneshiro for petitioner
Brian R. Vincent for respondent
Alen M. Kaneshiro for petitioner
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND EDDINS, JJ., WITH EDDINS, J., CONCURRING SEPARATELY, WITH WHOM McKENNA, J., JOINS, AND WILSON, J., DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J. I. INTRODUCTION
When evidence is obtained against a criminal defendant in contravention of constitutional protections, such as when police subject a suspect to custodial interrogation without first giving Miranda warnings as required by article I, section 10 of the Hawai‘i Constitution, that evidence must be suppressed. Evidence obtained after the illegality, acquired because of officers’ exploitation of that illegality, must likewise be suppressed, as such evidence is fruit of the poisonous tree.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Here, defendant Daniel Irving James Manion was subject to custodial interrogation during a roadside investigation for operating a vehicle under the influence of an intoxicant (OVUII). But the evidence gathered after that illegality – specifically, his performance on the standardized field sobriety test (SFST) – was neither testimonial, nor the fruit of the poisonous tree. The police did not exploit the illegal interrogation because the interrogation did not lead to the discovery of the SFST evidence; the investigation had already been directed to the SFST before any illegality.
We decline to revisit our holding in State v. Uchima, 147 Hawai‘i 64, 85, 464 P.3d 852, 873 (2020), that a person's performance on the SFST is not testimonial.
Manion's performance on the SFST was accordingly admissible despite the absence of Miranda warnings preceding the test.
II. BACKGROUND
A. District Court Proceedings
Manion was arrested in Hawai‘i Kai in the early hours of January 4, 2019, after a resident of the neighborhood heard a car crash into a parked vehicle and called the Honolulu Police Department (HPD). The police arrived to find Manion in the driver's seat of a damaged car, from which a fluid trail led to the damaged parked vehicle. After initial inquiry into whether Manion was hurt, the officer came to suspect he had been driving while intoxicated, administered the SFST on Manion, and arrested him.
Manion was charged with OVUII in violation of Hawai‘i Revised Statutes (HRS) § 291E-61(a)(1) (2020) in the District Court of the First Circuit. Manion moved to suppress any statements he made during the encounter with police that led to his arrest for lack of Miranda warnings. The district court held a hearing on the motion in which three HPD officers involved in the investigation, along with the Hawai‘i Kai resident who heard the crash, testified as to the following facts (as found by the district court in its written order):
HRS § 291E-61(a)(1) provides:
(a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty[.]
The Honorable Summer M. M. Kupau-Odo presided.
1. On January 4, 2019, at approximately 4:40 a.m., while patrolling the Hawai‘i Kai area, [HPD] Officer Corey Morgan ("Officer Morgan") responded to a report of a motor vehicle collision at Kealahou Street and K[i]p[u]kai Place. While other officers went to locate the vehicle that reportedly had been struck, Officer Morgan went to locate the "unit 1" vehicle that reportedly caused the crash, which the caller said might be on K[i]p[u]kai Place.
2. On K[i]p[u]kai Place, Officer Morgan found a white Hyundai with extensive and severe front-end damage. Defendant was the lone occupant of the Hyundai and was
seated in the driver's seat. Officer Morgan observed a fluid trail from Defendant's Hyundai leading to the parked vehicle that was struck on Kealahou Street less than two blocks away.
3. Officer Morgan approached Defendant and asked if he was okay, if he was injured, if he needed an ambulance, and where was he coming from. This initial exchange was brief – lasting a few seconds - as Officer Morgan tried to determine if Defendant needed medical attention. Defendant responded that he was okay. He also explained that after a "rough day," he had gone to [Sandy Beach, also known as Sandy's,] and drank a "40" and was heading home. Defendant further explained that he was texting and that is what caused the accident, not his prior drinking.
4. During this brief encounter, Officer Morgan observed Defendant to have red and watery eyes and a strong odor of an alcoholic beverage coming from his breath.
5. Believing, upon observing the indicia of alcohol, that he had probable cause to arrest Defendant for [OVUII], Officer Morgan asked Defendant if he would be willing to participate in a [SFST]. Defendant agreed and stepped outside of his vehicle. Defendant was not free to leave.
6. Officer Morgan would not have administered the SFST without first asking Defendant if he agreed to participate in the SFST and receiving Defendant's "yes" answer.
7. Prior to administering the SFST, Officer Morgan asked Defendant questions referred to as the Medical Rule Out ("MRO") questions, including whether Defendant was taking any medications or whether he was under the care of a doctor or dentist. Officer Morgan asked the questions to rule out causes, other than alcohol, that could affect Defendant's performance on the SFST. Defendant answered "no" to the MRO questions.
8. Officer Morgan would not have administered the SFST without first asking the MRO questions.
9. The SFST consists of three tests that are administered in a particular order - Horizontal Gaze Nystagmus ("HGN") first, Walk and Turn ("W&T") second, and One Leg Stand ("OLS") third.
10. Prior to beginning the tests, Officer Morgan told Defendant he would be judged on how well he follows the instructions for each of the three tests. Before administering each of the three tests, Officer Morgan instructed Defendant on how to perform the test. Each time after instructing Defendant, Officer Morgan asked Defendant if he understood the instructions and whether he had any questions. For each of the three tests, Defendant indicated he understood the instructions and he had no questions.
11. Officer Morgan would not have administered each of the three tests if he had not received Defendant's responses that he understood the instructions for the tests and had no questions.
12. After Officer Morgan obtained Defendant's agreement to participate in the SFST, Defendant's responses to the MRO questions, and Defendant's affirmative responses that he understood the instructions for each of the three tests, Officer Morgan had Defendant perform the HGN, W&T, and OLS.
13. Following the SFST, HPD Officer Landon Miyamura ("Officer Miyamura") offered Defendant the Preliminary Alcohol Screening and then arrested Defendant for OVUII.
14. At the main station, Officer Miyamura administered the intoxilyzer test to Defendant. Upon completion of the test, Officer Miyamura showed Defendant the print-out from the intoxilyzer, pointed out Defendant's breath-test result, and stated, "This is your result." Defendant responded: "That's impossible, I only had one ‘40’ and two fireball shots in three hours."
15. At no point in time did either officer tell Defendant he had the right to remain silent and anything he said could be used against him. Defendant was never advised of any of his Miranda rights.
The district court granted the motion to suppress, concluding that Manion was subjected to custodial interrogation without Miranda warnings. The court first determined that Manion was not in custody during the initial exchange with Officer Morgan, and accordingly, Manion's statements "admitting to drinking a ‘40’ at Sandy's and then explaining that his texting, as opposed to drinking, caused the accident" were admissible. However, the district court concluded Manion was in custody after that initial exchange, and that he was subjected to custodial interrogation when Officer Morgan (1) asked Manion if he would be willing to participate in the SFST, (2) asked him the medical rule-out questions, and (3) asked him whether he understood the SFST instructions or had any questions about the tests. As a result, the district court concluded that Manion's "performance on the SFST is inadmissible fruit of the poisonous tree."
The district court also suppressed Manion's statements after the breath test ("That's impossible, I only had one ‘40’ and two fireball shots in three hours") as the product of a separate violation (showing Manion the intoxilyzer results after his arrest without Miranda warnings). The ICA affirmed this conclusion, which is not at issue here.
B. Intermediate Court of Appeals (ICA) Proceedings
The State appealed, and the ICA affirmed in part and vacated in part in a memorandum opinion. As relevant here, the ICA concluded that Manion was in custody based on the State's concession at the motion to suppress hearing. Namely, "that Officer Morgan had probable cause to arrest Manion for OVUII after their initial exchange and before Officer Morgan asked Manion if he would participate in the SFST." The ICA next determined that "the defendant's performance on the [S]FST did not constitute an interrogation requiring Miranda warnings" pursuant to our decision in Uchima, 147 Hawai‘i at 84-85, 464 P.3d at 872-73, in which we held that the SFST was nontestimonial. Likewise, the ICA relied on Uchima to hold that "[a]sking Manion whether he was willing to participate in the SFST, whether he understood the instructions to the SFST, and whether he had any questions did not implicate his right to self-incrimination and did not constitute interrogation[.]"
The State's application for writ of certiorari (which we rejected in any event) did not contest the custody holding and indeed explicitly conceded it. For purposes of this opinion, therefore, Manion was in custody at all relevant times.
However, the ICA followed its published opinion in State v. Sagapolutele-Silva, 147 Hawai‘i 92, 101-03, 464 P.3d 880, 889-91 (App. 2020), and held that the medical rule-out questions were interrogation. The ICA did not address the argument that the SFST was the fruit of the medical rule-out questions.
C. Supreme Court Proceedings
Both the State and Manion filed applications for writ of certiorari seeking review of the ICA's memorandum opinion. We rejected the State's application and accepted Manion's. Manion asks this court to consider whether the ICA erred by "failing to suppress all evidence and statements obtained after the Medical Rule-Out [ ] questions as the ‘fruit of the poisonous tree[.]’ " He also urges us to revisit our recent holding in Uchima, 147 Hawai‘i at 84-85, 464 P.3d at 872-73, that "the SFST does not seek ‘communications’ or ‘testimony,’ " arguing that Uchima’s reliance on State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984), was misplaced because the SFST has changed since Wyatt was decided.
Because we rejected the State's application for writ of certiorari, which challenged the holding that the medical rule-out questions were interrogation, the question of whether there was an "illegality" at all is not before us. Nevertheless, the holding that the medical rule-out questions were interrogation was correct, as we explained in State v. Skapinok, SCWC-19-0000476, 2020 WL 5836356 (Hawai'i 2022).
III. STANDARD OF REVIEW
"We review questions of constitutional law under the ‘right/wrong’ standard." State v. Jenkins, 93 Hawai‘i 87, 100, 997 P.2d 13, 26 (2000) (citing State v. Toyomura, 80 Hawai‘i 8, 15, 904 P.2d 893, 900 (1995) ). Accordingly, "we review the circuit court's ruling on a motion to suppress de novo to determine whether the ruling was ‘right’ or ‘wrong.’ " State v. Kauhi, 86 Hawai‘i 195, 197, 948 P.2d 1036, 1038 (1997)
(citing State v. Navas, 81 Hawai‘i 113, 123, 913 P.2d 39, 49 (1996) ).
State v. Lee, 149 Hawai‘i 45, 49, 481 P.3d 52, 56 (2021) (brackets omitted).
IV. DISCUSSION
The exclusionary rule is "a judicially created remedy designed to safeguard against future violations of [constitutional] rights." Arizona v. Evans, 514 U.S. 1, 10, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). "The Hawai‘i exclusionary rule serves the dual purposes ‘of deterring governmental officials from circumventing the protections afforded by the Hawai‘i Constitution’ and of ‘protecting the privacy rights of our citizens.’ " Lee, 149 Hawai‘i at 49, 481 P.3d at 56 (brackets omitted) (quoting State v. Lopez, 78 Hawai‘i 433, 446, 896 P.2d 889, 902 (1995) ). Accordingly, when evidence is obtained "as a result of the exploitation of a previous illegal act of the police," it, too, must be suppressed as "the fruit of the poisonous tree," in order to ensure adequate deterrence of police actions that violate the constitution. Id.
A. The SFST Was Not the Fruit of the Illegality
We first address whether the evidence obtained after the illegality – here, asking the medical rule-out questions while Manion was in custody without Miranda warnings, which contravened article I, section 10 of the Hawai‘i Constitution –was tainted by the Miranda violation and therefore must be suppressed as fruit of the poisonous tree. In particular, Manion argues that "Manion's responses during the SFST and performance of the SFST" (to which we will refer collectively as "the SFST") must be suppressed. We disagree.
"No person shall ... be compelled in any criminal case to be a witness against oneself." Haw. Const. art. I, § 10.
We note that Manion squarely raised the fruits doctrine in his answering brief to the ICA, but the ICA's memorandum opinion did not address it. We ultimately agree with the result the ICA reached. But because fruit of the poisonous tree, if applicable, would require suppression of evidence acquired after the Miranda violation irrespective of whether that evidence was the product of interrogation, the ICA erred by failing to evaluate whether the fruits doctrine applied.
"[T]he ‘fruit of the poisonous tree’ doctrine ‘prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police.’ " State v. Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d 32, 45 (1997) (quoting State v. Medeiros, 4 Haw. App. 248, 251 n.4, 665 P.2d 181, 184 n.4 (1983) ). "Under the fruit of the poisonous tree doctrine, [a]dmissibility is determined by ascertaining whether the evidence objected to as being ‘fruit’ was discovered or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint." State v. Poaipuni, 98 Hawai‘i 387, 392–93, 49 P.3d 353, 358–59 (2002) (alteration in original) (quoting Fukusaku, 85 Hawai‘i at 475, 946 P.2d at 45 ).
....
"In other words, the ultimate question that the fruit of the poisonous tree doctrine poses is as follows: Disregarding the prior illegality, would the police nevertheless have discovered the evidence?" Id. at 393, 49 P.3d at 359....
Accordingly, the State's burden is to demonstrate that [the purported fruit] is not a benefit gained or an advantage derived by the police from the prior illegality or that the subsequent statement has become sufficiently attenuated from the initial illegality so as to purge the taint.
State v. Trinque, 140 Hawai‘i 269, 281, 400 P.3d 470, 482 (2017).
Here, the SFST was not an "exploitation of the previous illegality," Poaipuni, 98 Hawai‘i at 392, 49 P.3d at 358, or a "benefit gained or an advantage derived" from the Miranda violation. Trinque, 140 Hawai‘i at 281, 400 P.3d at 482. That the State cannot exploit or derive an advantage from a constitutional violation reflects the principle that adequately deterring police misconduct, a key purpose of the exclusionary rule, requires ensuring that police cannot profit from a constitutional violation by gaining an undue investigative edge that they would not have otherwise had. Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("The [exclusionary] rule is calculated ... to deter – to compel respect for the constitutional guaranty in the only effectively available way – by removing the incentive to disregard it."). But subsequently obtained evidence may not be an exploitation of the illegality if it "did not lead the officers to search for th[e allegedly tainted] evidence nor direct any investigation into its discovery." Lee, 149 Hawai‘i at 50, 481 P.3d at 57. In Lee, for instance, the defendant had locked himself in his bedroom, and his family, fearful of a suicide attempt, called the police. Id. at 48, 481 P.3d at 55. The police opened his bedroom door, which we assumed to be a constitutional violation, and the defendant assaulted the police officers. Id. at 48-49, 481 P.3d at 55-56. We held that evidence obtained after the illegal entry was not the fruit of the poisonous tree because the police did not "exploit that illegal entry to procure the relevant evidence – their observations of Lee's actions." Id. at 50, 481 P.3d at 57. Although the police would not have gathered that evidence but for the constitutional violation (they could not have observed the defendant without opening the door), they were neither led "to search for" nor "direct[ed]" to discover that evidence because of the constitutional violation. Id.
Although they immediately preceded the SFST in time, the medical rule-out questions did not give the officers information that "le[d] [them] to search for" evidence of intoxication, nor did the medical rule-out questions pique their suspicions such that their investigation was "direct[ed]" towards discovering evidence of intoxication. Id. Rather, the police decided to administer the SFST before committing the Miranda violation – the district court's findings of fact reflect that Officer Morgan asked Manion to participate in the SFST, and Manion agreed, prior to any interrogation (the medical rule-out questions). The officers did not exploit the illegality by continuing to gather evidence that they had already set out to gather.
Manion argues that the medical rule-out questions were "a necessary predicate to the administration of the SFST. Indeed, the validity of the conclusion that a subject's performance on the SFST indicated intoxication was contingent upon negative answers to the MRO questions." This argument is unpersuasive. Although the district court found as a factual matter that "Officer Morgan would not have administered the SFST without first asking the MRO questions," Officer Morgan's investigation was already "direct[ed]" to the SFST before the medical rule-out questions, as he obtained Manion's consent to administer the SFST before the interrogation. Lee, 149 Hawai‘i at 50, 481 P.3d at 57. In Lee, the police would not have observed the defendant without first opening the door, which we assumed was a constitutional violation. Id. Here, as in Lee, that Officer Morgan would not have continued with the SFST absent asking the medical rule-out questions does not render the SFST an "exploitation of the prior illegality." Poaipuni, 98 Hawai‘i at 392, 49 P.3d at 358. The medical rule-out questions did not point the officers toward the evidence they would discover from the SFST, even if certain answers to those questions (or failing to ask them at all) may have impacted whether they could administer the test as a practical matter. And though the answers to the questions provided information germane to the SFST (which is, indeed, why they constitute interrogation, see State v. Skapinok, SCWC-19-0000476, at *36, 2022 WL 1909093 (Hawai'i 2022), that the illegally-obtained evidence is relevant to interpreting subsequently-obtained evidence does not mean that discovery of the latter "exploit[s]" the former. Poaipuni, 98 Hawai‘i at 392, 49 P.3d at 358.
Accordingly, the SFST was not fruit of the poisonous tree.
B. A Suspect's Performance on the SFST Is Not Testimonial
"The privilege against self-incrimination is a bar against compelling communications or testimony." Uchima, 147 Hawai‘i at 84, 464 P.3d at 872 (brackets and quotation marks omitted) (quoting Wyatt, 67 Haw. at 303, 687 at 551, 687 P.2d 544 ). Accordingly, if performance on the SFST is testimonial, it, like the answers to the medical rule-out questions, would constitute statements adduced in violation of Miranda. But as we settled in Wyatt and recently reaffirmed in Uchima, performance on the SFST is not testimonial.
In this way, the theory that the SFST is testimonial would independently require suppression of that evidence as a new Miranda violation, separate and apart from the (ultimately unsuccessful) argument that the SFST is the fruit of an earlier Miranda violation.
"[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Pennsylvania v. Muniz, 496 U.S. 582, 594, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (citation omitted). We first considered whether a field sobriety test was testimonial in Wyatt, wherein the defendant was asked to perform a three-component battery of tests similar – though not identical – to the SFST at issue in this case. We explained that "the privilege against self-incrimination is not necessarily implicated whenever a person suspected of criminal activity is compelled in some way to cooperate in developing evidence which may be used against him." Wyatt, 67 Haw. at 302, 687 P.2d at 551. We relied on Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), in which the United States Supreme Court held that a blood draw was nontestimonial because it was "real or physical evidence," to hold that the field sobriety test merely sought "an exhibition of ‘physical characteristics of coordination,’ " and the defendant's participation in the test therefore did not violate the privilege against self-incrimination. Wyatt, 67 Haw. at 302-03, 687 P.2d at 551 (quoting State v. Arsenault, 115 N.H. 109, 336 A.2d 244, 247 (1975) ).
Specifically, the defendant participated in the following:
(a) The arch back test which requires the driver to stand with her back arched and her eyes closed; (b) the heel walk test where the officer requests the driver to take six steps down, turn to the right, and take seven steps back. Each step requires contact between the heel of one foot and the toe of the other foot; and (c) the leg lift test where the driver places her hands behind her head, interlocking her fingers, lifts one leg fifteen inches off the ground and holds it straight ahead of her for fifteen seconds.
Wyatt, 67 Haw. at 301 n.8, 687 P.2d at 550 n.8.
Components (b) and (c) of the above appear virtually identical to the walk-and-turn and one-leg-stand tests respectively. Only component (a) differs from the SFST at issue in this case; Manion was given the HGN test instead of the arch back test. Manion argues that this difference warrants revisiting Wyatt and its progeny. However, he fails to explain why this difference would be meaningful. In any event, the test at issue in Uchima was identical to the one given in the instant case. 147 Hawai‘i at 70, 464 P.3d at 858. Uchima, therefore, belies Manion's argument that we should revisit these cases because the SFST has changed.
We reaffirmed this holding in Uchima:
[The defendant's] performance on the [S]FST does not constitute incriminating statements. ... In Wyatt, this court held that when conducting an [S]FST the State does not seek "communications" or "testimony," but rather, "an exhibition of ‘physical characteristics of coordination.’ " ... Here, [the officer administering the SFST] did not seek "communications" or "testimony" from [the defendant]. Rather, in conducting the [S]FST, the officer sought "an exhibition of ‘physical characteristics of coordination.’ " "Consequently, the field sobriety test was not rendered infirm by the constitutionally guaranteed privilege against compulsory self-incrimination."
Uchima, 147 Hawai‘i at 84–85, 464 P.3d at 872–73 (citations omitted).
Uchima was correctly decided, and Manion offers no compelling reason to revisit it. Manion argues that SFST performance is "communication" or "testimony" because it "tests mental capability instead of just purely physical coordination." But this is not what it means to be "testimonial." Purely physical evidence can provide incriminating information about a person's mental faculties yet nonetheless be nontestimonial. Muniz, 496 U.S. at 593, 110 S.Ct. 2638 ("[T]hat the ‘fact’ to be inferred might be said to concern the physical status of [the defendant's] brain merely describes the way in which the inference is incriminating. The correct question for ... purposes [of determining whether there has been a Miranda violation] is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence."). Slurred speech is an apt example. In Pennsylvania v. Muniz, the United States Supreme Court considered whether asking a suspect accused of driving while intoxicated the date of his sixth birthday was testimonial. 496 U.S. at 590–93, 110 S.Ct. 2638. The Court distinguished between the content of the answer – which revealed that the defendant was unable to remember the date of his sixth birthday – and the way in which the answer was given. Id. The former was testimonial because it "convey[ed] information or assert[ed] facts." Id. at 597, 110 S.Ct. 2638 (quoting Doe v. United States, 487 U.S. 201, 213, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) ). But the act of slurring the response was not:
Muniz recognized that " ‘[t]he vast majority of verbal statements thus will be testimonial’ because ‘[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts.’ " 496 U.S. at 597, 110 S.Ct. 2638 (brackets in original) (quoting Doe, 487 U.S. at 213, 108 S.Ct. 2341 ).
We agree with the [prosecution's] contention that [the defendant's] answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to "the lack of muscular coordination of his tongue and mouth," ... is not itself a testimonial component of [the defendant's] responses ....
[A]ny slurring of speech and other evidence of lack of muscular coordination revealed by [the defendant's] responses to [the officer's] direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, ... does not, without more, compel him to provide a "testimonial" response for purposes of the privilege.
Muniz, 496 U.S. at 590–92, 110 S.Ct. 2638 (citations omitted).
The SFST, like the slurring of words, is nontestimonial in that it constitutes "an exhibition of physical characteristics of coordination." Uchima, 147 Hawai‘i at 84, 464 P.3d at 872 (quotation marks and citation omitted). We therefore see no reason to revisit our recent holding in Uchima, with which we continue to agree.
V. CONCLUSION
For the foregoing reasons, the ICA's December 16, 2020 judgment on appeal is affirmed.
CONCURRING OPINION BY EDDINS, J., IN WHICH McKENNA, J., JOINS
Though I concur with the majority's judgment and reasoning, I dislike its slinking reliance on the State's custody concession. See Majority at 151 Hawai'i at 271 n.6, 511 P.3d at 770 n.6. That custody concession is the point of departure for the majority's fruit of the poisonous tree analysis: without custody, there are no illegal medical rule out questions, and without the illegal medical rule out questions, there's no exclusionary rule issue. But it is also - like the district court's custody conclusion – premised on State v. Ketchum, 97 Hawai‘i 107, 34 P.3d 1006 (2001). At the time of the suppression hearing (and for nearly two decades before it), Ketchum safeguarded the right against self-incrimination with a bright-line rule: a person is "in custody" for the purposes of article I, section 10 of the Hawai‘i Constitution if "probable cause to arrest has developed." 97 Hawai‘i 107, 126, 34 P.3d 1006, 1025 (2001). By treating custody as a given in this case, the court effectively, if indirectly, builds new law on the back of the same bright-line rule it has recently tossed aside. See State v. Sagapolutele-Silva, SCWC-19-0000491, 151 Hawai'i 283, 511 P.3d 782(Haw. June 3, 2022) (McKenna, J., dissenting).
The district court cited Ketchum in its conclusion of law about what defendants objecting to the admissibility of statements must show. It also concluded - channeling Ketchum - that "legal custody had attached" after Manion's initial encounter with Officer Morgan in part because, by that point, "Officer Morgan had sufficient probable cause to arrest Defendant for [Operating a Vehicle under the Influence of an Intoxicant]." The State's concession that Manion was in custody after his initial exchange with Officer Morgan was likewise apparently informed by Ketchum. See ICA Mem. Op. at 8 (describing State's custody concession as "related[ ]" to its concession that Officer Morgan had probable cause to arrest Manion).
Identical dissenting opinions have been filed in the following cases: State v. Skapinok, SCWC-19-0000476 and State v. Sagapolutele-Silva, SCWC-19-0000491.
DISSENTING OPINION BY WILSON, J.1
In this trio of cases the Majority eviscerates the constitutional protection afforded those in Hawai‘i who government agents seek to interrogate. In so doing, the Majority reverses orders entered by the district court that protected the rights of Petitioners Tiana Sagapolutele-Silva ("Sagapolutele-Silva"), Leah Skapinok ("Skapinok") and James Manion ("Manion") to be free from interrogation by government agents.
A. The Majority in Sagapolutele-Silva rejects the settled constitutional protection against self-incrimination previously afforded those in Hawai‘i who face arrest: the people of Hawai‘i who government agents have probable cause to believe have committed a crime are no longer due the settled presumption that probable cause to arrest means a person is not free to leave police custody; the Majority's erasing of the presumption removes the protection of the right against self-incrimination heretofore accorded Hawai‘i's people.
In Sagapolutele-Silva the Majority rescinds the right against self-incrimination previously afforded to those who police have probable cause to believe committed a crime. To do so, the Majority opines that a woman pulled over at 2:50 a.m. by a police officer who witnessed her commit excessive speeding, who is without her license, who is told that she was pulled over for speeding, who admits that she was speeding, who shows signs of intoxication, who is questioned while standing outside of her vehicle and who is approached by as many as two police officers, is not in custody. To reach the conclusion that Sagapolutele-Silva was not in custody the Majority holds that, faced with these circumstances, it would not be reasonable for her to believe she was in custody; instead, as a matter of law, the Majority finds it would only be reasonable for her to believe she was free to return to her car and drive away. Of note is the sensible testimony of the two officers at the scene who contradict the conclusion of the Majority and candidly acknowledge that Sagapolutele-Silva was not free to leave from the time her vehicle was initially stopped. Specifically, Officer Franchot Termeteet ("Officer Termeteet") testified that from the time he "approached the window" of Sagapolutele-Silva's vehicle, "she was not free to leave the scene[.]" Officer Bobby Ilae ("Officer Ilae") further testified that throughout the time that he was with Sagapolutele-Silva, she was not free to leave. Consistent with the conclusion of the officers, the District Court of the First Circuit ("district court") and the Intermediate Court of Appeals ("ICA") found—contrary to the Majority's application of the facts—that Sagapolutele-Silva was in custody.
Chief Justice Recktenwald writes the Majority opinion in Sagapolutele-Silva, which Justice Nakayama and Circuit Judge Wong (assigned by reason of vacancy) join. Justice McKenna writes separately in dissent.
The rule of law relied upon by the district court and the ICA has been settled for over twenty years. This court held that at the point of arrest, the right against self-incrimination attaches: "persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached." State v. Patterson, 59 Haw. 357, 362-63, 581 P.2d 752, 756 (1978) (emphasis added). This court then affirmed that the accused is protected from self-incrimination at the point the police have probable cause to arrest: "[I]f the detained person's responses to a police officer's questions provide the officer with probable cause to arrest ... the officer is—at that time—required to inform the detained person of his or her constitutional rights against self-incrimination and to counsel, as mandated by Miranda and its progeny." State v. Loo, 94 Hawai‘i 207, 212, 10 P.3d 728, 733 (2000) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Within a year, the right of the accused facing arrest to be free from police questioning was specifically applied pursuant to article I, section 10 of the Hawai‘i Constitution: "In summary, we hold that a person is "in custody" for purposes of article I, section 10 of the Hawai‘i Constitution if an objective assessment of the totality of the circumstances reflects ... that the point of arrest has arrived because either (a) probable cause to arrest has developed or (b) the police have subjected the person to an unlawful "de facto " arrest without probable cause to do so." Ketchum, 97 Hawai‘i at 126, 34 P.3d at 1025 (emphasis added).
Respectfully, we do not suggest that State v. Patterson, 59 Haw. 357, 581 P.2d 752 (1978) adopted a bright-line rule that the right against self-incrimination attaches at the point police have probable cause to arrest. Rather, Patterson recognized the significance of probable cause in determining whether the right against self-incrimination has attached, and later cases—State v. Loo, 94 Hawai‘i 207, 212, 10 P.3d 728, 733 (2000) and State v. Ketchum, 97 Hawai‘i 107, 34 P.3d 1006 (2001) —announced the bright line rule, which has been relied upon for the past twenty years.
Notwithstanding this court's application of the totality of the circumstances test in State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984) and State v. Kuba, 68 Haw. 184, 706 P.2d 1305 (1985), this court later recognized the bright-line rule that Miranda warnings are required when probable cause to arrest has developed. Loo, 94 Hawai‘i at 212, 10 P.3d at 733 ; Ketchum, 97 Hawai‘i at 126, 34 P.3d at 1025. The eventual recognition of this bright-line rule stemmed from our case law's important realization of the significance of probable cause in determining when the right against self-incrimination attaches. See e.g., Patterson, 59 Haw. at 362-63, 581 P.2d at 756.
In contravention of clear precedent to the contrary, the Majority for the first time opens wide interrogation without the protection of the right against self-incrimination of people who police have probable cause to believe have committed a crime. In so doing the Majority reverses the conclusions of the district court and the ICA that Sagapolutele-Silva was in custody and approves the interrogation of Sagapolutele-Silva by police who—having probable cause to believe she committed a criminal offense—seek additional information in pursuit of her prosecution.
The district court in Sagapolutele-Silva, Skapinok, and Manion, properly protected the defendants’ constitutional rights against self-incrimination, suppressing the defendants’ responses to the medical rule-out ("MRO") questions and standard field sobriety test ("SFST") questions, as well as their performances on the SFST as fruit of the poisonous tree of the unwarned MRO questions. The district court found that the defendants, Sagapolutele-Silva, Skapinok, and Manion, were in custody by the time the respective police officers asked if they were willing to participate in the SFST. Further, the district court found that the SFST questions and MRO questions constituted interrogation because they were reasonably likely to elicit incriminating responses, and that the defendants’ SFST performances were fruit of the poisonous tree of that custodial interrogation.
The ICA in all three cases correctly concluded that the defendants were in custody and that the MRO questions constituted custodial interrogation. However, the ICA, like the Majority, undermined the defendants’ constitutional rights in reversing the district court's suppression of the SFST questions and SFST performances. The ICA erred in finding that the SFST questions were not interrogation and that the SFST performances were not fruit of the poisonous tree of the MRO questions.
In apparent contradiction of its finding that Sagapolutele-Silva was not in custody, the Majority accepts that petitioners Skapinok and Manion were in custody under facts no less pregnant with indicia of custody than those confronted by Sagapolutele-Silva. In other words, under the facts in Skapinok and Manion the Majority's remaking of the right against self-incrimination would also remove any protection from incriminatory questioning by police who had probable cause to arrest them. Manion's plight was less infused with facts establishing custody than Sagapolutele-Silva's, and Skapinok's plight was ringingly similar to Sagapolutele-Silva's. Unlike Sagapolutele-Silva, Manion committed no offense in the presence of the police. He was found sitting in his car with damage to the vehicle. Only circumstantial evidence provided the probable cause for his arrest. Nor was he told that he was under arrest. Probable cause to arrest Skapinok for reckless driving arose from the officer's observation of her speeding and crossing multiple lanes of traffic. Like Sagapolutele-Silva, Skapinok was told that she was stopped for speeding and that she smelled of alcohol. Consistent with the Majority's deeming unreasonable Sagapolutele-Silva's belief that she was in custody, the belief of both Manion and Skapinok that they were in custody would also be deemed unreasonable under the Majority's analysis. As in Sagapolutele-Silva, the district court and the ICA found both Manion and Skapinok to be in custody. However, unlike Sagapolutele-Silva the Majority chose not to reverse the custody analysis of the lower courts in Manion and Skapinok. The reason for the distinction is not apparent. However, application of the Majority's revised custody analysis to Manion and Skapinok is problematic because in Manion and Skapinok, the government conceded that the facts supported the custody determination.
Chief Justice Recktenwald writes the Majority opinion in Skapinok, which Justice Nakayama, Justice McKenna, and Circuit Judge Wong (assigned by reason of vacancy) join.
Chief Justice Recktenwald writes the Majority opinion in Manion, which Justice Nakayama, Justice McKenna, and Justice Eddins join.
Presumably the Majority chose not to reverse the custody analysis of the lower courts in Manion and Skapinok because the government conceded that the facts supported the custody determination.
The new rule established by the Majority upends settled constitutional protection against self-incrimination afforded those whom police have probable cause to arrest; the new rule is unmoored from the axiomatic common-sense constitutional precept that a person whom police have reason to arrest—based on probable cause to believe the person has committed a crime, and who therefore is not free to leave police control—is in police custody and thus, is constitutionally entitled to be free from police interrogation. Like Justice McKenna, I dissent to the Majority's unsupported cast-aside of a fundamental right to be free from questioning by a government agent formally poised to gather evidence against one for whom they have probable cause to arrest. Accordingly, with Justice McKenna, the district court, and the ICA, I find that Sagapolutele-Silva was in custody when she was subjected to the MRO questions. I join with Justice McKenna to conclude that Sagapolutele-Silva's statement that she "had a few beers[,]" made soon after the MRO questions, was properly suppressed as "fruit of the poisonous tree" of the MRO questions. I also dissent to the Majority's holding in Sagapolutele-Silva, Manion, and Skapinok that the conclusion of the district court that the SFST questions and SFST performances of the defendants in all three cases must be suppressed as "fruit of the poisonous tree" was error. The SFST questions are interrogation, and thus, the questions and the responses should be suppressed inasmuch as all three defendants were in custody and no Miranda warnings were given.
Notably, the State did not demonstrate a need to weaken the protection against self-incrimination. Indeed, there is no evidence that requiring Miranda warnings at the time that police have probable cause to arrest interferes with the government's ability to gather evidence and prosecute people whom government agents have probable cause to believe have committed a crime. To the contrary, Hawai‘i has an incarceration rate of 439 per 100,000 people, which is more than three times the incarceration rates of the following NATO countries: United Kingdom (129 per 100,000), Portugal (111 per 100,000), Canada (104 per 100,000), France (93 per 100,000), Belgium (93 per 100,000), Italy (89 per 100,000), Luxembourg (86 per 100,000), Denmark (72 per 100,000), Netherlands (63 per 100,000), Norway (54 per 100,000) and Iceland (33 per 100,000). Emily Widra & Tiana Herring, States of Incarceration: The Global Context 2021, THE PRISON POLICY INITIATIVE (Sep. 2021), https://www.prisonpolicy.org/global/2021.html. Moreover, as of 2010 in Hawai‘i, Native Hawaiians and Pacific Islanders were incarcerated at a rate of 1,615 per 100,000, Black people were incarcerated at a rate of 1,032 per 100,000, while white people were incarcerated at a rate of 412 per 100,000. Leak Sakala, Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by Race/Ethnicity, THE PRISON POLICY INITIATIVE (May 28, 2014), https://www.prisonpolicy.org/reports/rates.html. Thus, the Majority's weakening of the right of people facing arrest to be free from self-incrimination is without any showing of factual justification. Instead, the proven strength of the government to gather evidence and incarcerate Hawai‘i's people dictates that judges be vigilant to enforce and protect the core constitutional precept that citizens facing arrest shall not be subjected to incriminating questions by a government that seeks to prosecute them.
After being asked the MRO questions and told she was under arrest, Sagapolutele-Silva stated, "she's not going to lie, she had a few beers but her friends were more impaired than she was." As Justice McKenna explains, the Majority rules that this statement was improperly suppressed by the district court based on its finding that Sagapolutele-Silva was not in custody. I agree with Justice McKenna that this statement should have been suppressed as fruit of the poisonous tree of the custodial interrogation MRO questions. "Under the fruit of the poisonous tree doctrine, [a]dmissibility is determined by ascertaining whether the evidence objected to as being ‘fruit’ was discovered or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint." State v. Poaipuni, 98 Hawai‘i 387, 392-93, 49 P.3d 353, 358-59 (2002). Factors relevant to determining whether subsequently gathered evidence is "sufficiently attenuated from the illegality...include: (1) the temporal proximity between the official misconduct and the subsequently procured statement or evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct." State v. Trinque, 140 Hawai‘i 269, 281, 400 P.3d 470, 482 (2017). Sagapolutele-Silva ’s statement that she "had a few beers" was made very shortly after being illegally asked the MRO questions. Moreover, no intervening circumstances attenuated the connection between the MRO questions and her statement.
After asking the defendants the MRO questions, the officers asked the defendants whether they understood the SFST instructions and also asked if they had any questions about the procedure ("SFST questions").
B. The SFST questions and SFST performance are fruit of the poisonous tree.
As previously noted in Justice McKenna's dissent, the Majority holds that Sagapolutele-Silva was not in custody at the time of the MRO interrogation, but without explanation, conversely finds Skapinok and Manion were in custody at the time they were subjected to MRO interrogation. Because Skapinok and Manion were in custody at the time the MRO interrogation occurred, and no Miranda warnings were provided, the Majority concedes that the defendants’ answers to the MRO questions were properly suppressed by the district court in these cases. While the Majority correctly suppresses Skapinok's and Manion's answers to the MRO questions, the Majority finds that the evidence gathered after the illegal MRO questions is not fruit of the poisonous tree because the officers did not exploit the illegal interrogation.
Respectfully, the evidence gathered after the MRO questions, including the SFST questions and SFST performances, is fruit of the poisonous tree stemming from the unwarned MRO questions and should also be suppressed. The fruit of the poisonous tree doctrine "prohibits the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police." State v. Fukusaku, 85 Hawai‘i 462, 475, 946 P.2d 32, 45 (1997). Under the fruit of the poisonous tree doctrine, "[a]dmissibility is determined by ascertaining whether the evidence objected to as being ‘fruit’ was discovered or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint." Id. (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ). To demonstrate that evidence is not a "fruit" of a prior illegality, the government must prove that "the evidence was discovered through information from an independent source or where the connection between the illegal acts and the discovery of the evidence is so attenuated that the taint has been dissipated[.]" Id. "In other words, the ultimate question that the fruit of the poisonous tree doctrine poses is as follows: Disregarding the prior illegality, would the police nevertheless have discovered the evidence?" Poaipuni, 98 Hawai‘i at 393, 49 P.3d at 359.
Here, the relevant question is would the police have obtained the defendants’ answers to whether they understood the SFST instructions, whether they had any questions about the SFST, and their performances on the SFST ("SFST evidence") had the police not violated their constitutional rights in obtaining their responses to the MRO questions? See Trinque, 140 Hawai‘i at 281, 400 P.3d at 482. Officer Ilae asked Sagapolutele-Silva the following MRO questions: (1) "[d]o you have any physical defects or speech impediments," (2) "are you taking medication," (3) "are you under the care of a doctor or dentist," (4) "are you under the care of an eye doctor," (5) "are you epileptic or diabetic," (6) "[do you have an] artificial or glass eye," (7) "are you wearing any contact lenses or corrective lenses," and (8) "are [you] blind in any eye[?]" Sagapolutele-Silva and Manion answered "no" to all of the MRO questions, and Skapinok answered "no" to most of the questions, except she replied that she was taking a certain medication and seeing a doctor.
In large part, both Corporal Ernest Chang ("Corporal Chang"), the officer conducting SFST in Skapinok and Officer Corey Morgan ("Officer Morgan"), the officer conducting SFST in Manion, asked Skapinok and Manion respectively, the same MRO questions.
Because the MRO questions contributed to the subsequently gathered SFST evidence, the SFST questions and performances should have been suppressed as fruit of the poisonous tree. As the defendants argue, the MRO questions are necessary to perform the SFST safely. That is, an officer will generally not perform the SFST without first receiving satisfactory answers to the MRO questions. Furthermore, the defendants’ responses to the MRO questions allowed the officers to draw a different conclusion from the defendants’ performances on the SFST than the officers otherwise would have been able to. Without knowing what medical conditions a suspect has, poor performance on the SFST alone cannot lead to a conclusion that the suspect is intoxicated.
For example, Skapinok pointed to Corporal Chang's testimony that the MRO questions were, "necessary to perform the [SFST] safely"; that he had never administered the SFST "without first asking the medical rule-out questions"; and that he was not permitted to conduct the SFST without first asking the questions.
Factors relevant to determining whether subsequently gathered evidence is "sufficiently attenuated from the illegality ... include: (1) the temporal proximity between the official misconduct and the subsequently procured statement or evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct." Trinque, 140 Hawai‘i at 281, 400 P.3d at 482. Under these factors, in all three cases, no time passed between the MRO questions and the SFST questions and performances. There is also no evidence of any intervening circumstances that attenuated the connection between the illegalities and the SFST questions and performances. For example, Officer Ilae testified that he asked Sagapolutele-Silva the MRO questions, then proceeded to explain the SFST instructions and clarify to her that she understood those instructions, before administering the SFST itself. Thus, the SFST evidence is not sufficiently attenuated from the illegally obtained answers to the MRO questions. Additionally, the MRO questions serve an incriminatory purpose: to aid the officer's investigation into whether they can focus on the results of the SFSTs as caused by intoxication.
What is more, the officers exploited the answers to the MRO questions in analyzing the defendants’ performances on the SFSTs and answers to the SFST questions. Poaipuni, 98 Hawai‘i at 393, 49 P.3d at 359. As the Majority stated in Skapinok, "the sweep of the seven medical rule-out questions....ensure[ ] not only that the officer [can] administer the test, but that all other possible explanations [are] systemically ruled-out as causes of the test's results." That is, the answers to the MRO questions allow officers to interpret the SFST results and ultimately draw the inference of intoxication from the SFST performance. Officer Ilae in Sagapolutele-Silva testified that if a person answers "no" to all of the MRO questions, it eliminates the possibility that the results of the SFST are caused by "the categories of medical conditions" asked about. Thus, the officers profited from the defendants’ answers to the MRO questions by being able to direct their attention to the SFST results as caused by intoxication. The MRO questions are "only there to help [the officers] gauge whether or not the impairment [ ]is caused by medical" reasons rather than intoxication. Consequently, the SFST was an "exploitation of the previous illegality," Poaipuni, 98 Hawai‘i at 393, 49 P.3d at 359, and a "benefit gained or an advantage derived" from the previous unwarned MRO questions. Trinque, 140 Hawai‘i at 281, 400 P.3d at 482.
Corporal Chang similarly testified that if an individual answered "no" to all of the MRO questions, then the individual's performance on the SFST is seen "more [as] a cause by an intoxicant" rather than "from medical and physical problems[.]" Officer Morgan also acknowledged that because Manion answered "no" to all of the MRO questions, he was able to rule out any medical concerns when making his observations of Manion's SFST performance.
In Skapinok and Manion, the Majority contends that when the officers gathered the SFST evidence they were simply "continuing to gather evidence that they had already set out to gather" at the time of the illegally asked MRO questions. In other words, the Majority argues that because the officers had already begun the SFST procedure when they illegally asked the MRO questions, that any illegally obtained evidence in the course of that SFST procedure is not subject to suppression under the fruit of the poisonous tree doctrine. There is no such exception to the privilege against self-incrimination. Merely because the officers had decided to gather the SFST evidence at the time the officers illegally asked the MRO questions does not mean that the officers did not exploit the defendants’ answers to the MRO questions in obtaining and analyzing the SFST evidence. Despite the officers having decided to administer the SFST before asking the MRO questions, the officers still profited from the answers to the MRO questions by being able to draw the conclusion that the defendants were intoxicated from the SFST results.
If officers were simply continuing the same evidence-gathering procedure, then the defendants’ responses to the MRO questions and the SFST questions would not have an effect on how the officers administered the SFST. However, if the defendant responds affirmatively to certain MRO questions, the SFST may not be safe to perform. Moreover, Corporal Chang testified in Skapinok that if the suspect does not understand the SFST instructions, he would ask them what they do not understand and clarify further. The SFST does not begin until the individual indicates that they do not have any questions. In sum, based on the officer's testimony, the SFST would not be conducted if the individual continued to not understand the SFST instructions, if the individual continued to have questions, or if the individual had certain medical conditions. Consequently, the SFST was not simply a continuation of the same evidence gathering, but rather a means through which the officers were able to gather additional evidence that the defendants were intoxicated.
Like Corporal Chang, Officer Ilae testified that if a person indicates that they do not understand the SFST instructions, he will then ask them "what part needs to be clarified." Officer Ilae stated that he will keep clarifying until he receives a response that the person understands. If a person keeps asking the same clarifying question over and over again, Officer Ilae testified that this "could possibly" tell him that the person is impaired by an intoxicant, and it might be something that he writes in the report.
Furthermore, the Majority's conclusion that the SFST and SFST questions were simply a continuation of evidence gathering undermines the fruit of the poisonous tree doctrine. The Manion Majority, for example, concedes that Manion's answers to the MRO "questions provided information germane to the SFST" yet concludes that the SFST evidence is not fruit of the poisonous tree based on the reasoning that "the illegally-obtained evidence is relevant to interpreting subsequently-obtained evidence [but that] does not mean that discovery of the latter ‘exploit[s]’ the former." This distinction is contrary to the purpose of the fruit of the poisonous tree doctrine. Adequately deterring police misconduct—a key purpose of the exclusionary rule and the fruit of the poisonous tree doctrine—requires ensuring that police cannot profit from a constitutional violation by gaining an undue investigative edge that they would not have otherwise had without the illegality. See State v. Lopez, 78 Hawai‘i 433, 446, 896 P.2d 889, 902 (1995). The police did obtain an "investigative edge" by asking the MRO questions: the police were able to rule out other exculpatory reasons for the defendants’ performances on the SFST and further confirm their suspicions that the defendants committed an operating a vehicle under the influence of an intoxicant ("OVUII") offense.
C. The SFST questions are interrogation because they are reasonably likely to lead to an incriminating response.
In order to protect the privilege against self-incrimination guaranteed under the fifth amendment to the United States Constitution and article I, section 10 of the Hawai‘i Constitution, Miranda warnings must "be given to an accused in order for statements obtained during custodial interrogation to be admissible at trial." State v. Joseph, 109 Hawai‘i 482, 493-94, 128 P.3d 795, 806-07 (2006). The two triggers for the Miranda requirement are "custody" and "interrogation." Trinque, 140 Hawai‘i at 277, 400 P.3d at 478.
After asking the MRO questions, the officers in these three cases asked the defendants if they understood the SFST instructions and also asked if they had any questions about the procedure ("SFST questions"). Aside from being fruit of the poisonous tree of the unwarned MRO questions, the SFST questions themselves constitute interrogation, and thus if a defendant is in custody, require Miranda warnings.
As explained above, Sagapolutele-Silva, as well as Skapinok and Manion, were in custody at the time of the MRO questions and at the time of the SFST questions and performance. Given that the defendants were in custody at the time of the SFST questions, it must be determined whether the SFST questions were "likely to invoke an incriminating response," the paradigmatic indicator of interrogation. Joseph, 109 Hawai‘i at 495, 128 P.3d at 808.
Interrogation is defined as: (1) any words, actions, or practice on the part of the police, not only express questioning, (2) other than those normally attendant to arrest and custody, and (3) that the police should know is reasonably likely to invoke an incriminating response. Trinque, 140 Hawai‘i at 277, 400 P.3d at 478. Additionally, as the Skapinok Majority notes, "[t]he contents of the answer, as opposed to the manner in which the answer is given, communicate the information that may or may not be used to support the incriminating inference of impairment." The SFST questions are reasonably likely to elicit an incriminating response. If a person indicates that she does not understand the SFST instructions, the content of that answer supports the incriminating inference of impairment. Indeed, Officer Ilae testified that if a person has difficulty understanding the MRO questions or SFST instructions, it could be a sign of intoxication, which he would write in his report. Similarly, if a defendant does have questions about the SFST, this may indicate a lack of understanding and impaired mental faculties. Finally, as Officer Ilae and Corporal Chang testified, if a person indicates that they do understand the instructions but then that person does not perform the test as instructed, the officers might conclude that the suspect is impaired by an intoxicant. These questions are not "limited and focused inquiries" as the Majority contends in Skapinok (quoting Pennsylvania v. Muniz, 496 U.S. 582, 605, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) ) and it is incorrect to conclude that "neither an affirmative or negative response to these questions is incriminating." State v. Uchima, 147 Hawai‘i 64, 84, 464 P.3d 852, 872 (2020). Rather, as the officers testified, either an affirmative or negative response may be incriminating.
Corporal Chang similarly testified that if a defendant states that she does not understand the instructions, this might "possibly" tell him that she is mentally confused or impaired by an intoxicant.
Moreover, the inference of intoxication is not just from the fact of any slurred speech, but rather stems from a testimonial statement of the defendant regarding her mental understanding at the time. And, "[a]lthough the ‘incriminating inference’ may be indirect, the questions nevertheless adduce evidence to establish that intoxication caused" the lack of understanding or failure to follow instructions. Finally, officers should know that the SFST questions are likely to elicit an incriminating response. Trinque, 140 Hawai‘i at 277, 400 P.3d at 478 (defining interrogation to include police practices "that the police should know [are] reasonably likely to invoke an incriminating response") (emphasis added). This is because, at the time the SFST questions are asked, an officer already suspects that the person responding may be impaired.
Skapinok Majority at 35.
The ICA in Sagapolutele-Silva correctly noted that the United States Supreme Court rejected the contention that Miranda warnings are required prior to an inquiry as to whether a defendant understood SFST instructions, because the "focused inquiries were necessarily ‘attendant to’ the police procedure held by the court to be legitimate." State v. Sagapolutele-Silva, 147 Hawai‘i 92, 101, 464 P.3d 880, 889 (App. 2020) (quoting Muniz, 496 U.S. at 603-604, 110 S. Ct. at 2651-2652 ). However, this court can and has provided Hawai‘i's people greater protection of their right against self-incrimination pursuant to article I, section 10 of the Hawai‘i Constitution than that afforded under the fifth amendment to the United States Constitution. Importantly, there is no exception to the interrogation test in Hawai‘i that obviates the need to inquire into whether the question is likely to elicit an incriminating response when the question is attendant to a legitimate police procedure. Ketchum, 97 Hawai‘i at 119-120, 34 P.3d at 1018-1019. Ketchum rejected the existence of such a "booking exception," and instead, permits booking questions without Miranda warnings only if the question is also not reasonably likely to elicit incriminating information.
And regardless of any exception, the SFST questions are not "booking" questions to begin with. Routine booking questions inquire into matters such as a person's name, address, height, weight, eye color, date of birth, current age, and social security number. Ketchum, 97 Hawai‘i at 119, 34 P.2d at 1018 (citing Muniz, 496 U.S. at 611, 110 S. Ct. at 2655, 110 L. Ed. 2d at 557 ). Asking whether a person understands a set of instructions or has any questions about those instructions is different from asking about a person's own basic information. The SFST questions require more cognitive analysis and reveal information related to a defendant's state of mind, rather than preliminary background information. See Muniz, 496 U.S. at 600, n.13, 110 S.Ct. 2638 (explaining the holding in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) ("we held that a defendant's answers...were testimonial in nature" because the answers, in part, revealed his "state of mind"); see also State v. Fish, 321 Or. 48, 893 P.2d 1023 (1994) (defining testimonial evidence as evidence that discloses a defendant's "beliefs, knowledge, or state of mind, to be used in a criminal prosecution against them.") (emphasis added).
In conclusion, the SFST questions are likely to lead to an incriminating response, either if a person answers in the affirmative or in the negative. Thus, the SFST questions are interrogation of suspects in custody and must be accompanied by Miranda warnings in order to be admissible. In this trio of cases, the SFST questions and SFST performance were also fruit of the illegally obtained answers to the MRO questions. I therefore respectfully dissent to the Majority's failure to affirm the district court's suppression of the MRO questions and the evidence gathered subsequent to the MRO questions in connection with the SFST. Accordingly, as for Sagapolutele-Silva, I would vacate in part the ICA's June 19, 2020 judgment on appeal, and affirm the district court's June 7, 2019 Judgment and August 26, 2019 Amended Judgment. As for Skapinok, I would vacate in part the ICA's June 30, 2020 judgment on appeal, and affirm the district court's July 5, 2019 order granting Skapinok's Motion to Suppress. And as for Manion, I would vacate in part the ICA's December 16, 2020 judgment on appeal and affirm the district court's July 10, 2019 oral order granting in part Manion's Motion to Suppress.