State v. Sagapolutele-Silva. ( 2022 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
03-JUN-2022
09:33 AM
Dkt. 23 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Petitioner and Respondent/Plaintiff-Appellant,
vs.
TIANA F.M. SAGAPOLUTELE-SILVA,
Respondent and Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-18-01227)
JUNE 3, 2022
RECKTENWALD, C.J., NAKAYAMA, J.,
AND CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY, WITH
McKENNA, J., DISSENTING SEPARATELY, WITH WHOM WILSON, J., JOINS,
AND WILSON, J., DISSENTING SEPARATELY
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
Tiana Sagapolutele-Silva was arrested after a traffic
stop in 2018 and charged with Operating a Vehicle Under the
Influence of an Intoxicant (OVUII) and excessive speeding.
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Sagapolutele-Silva moved to suppress any statements she made
during the traffic stop on the ground that she was not advised
of her Miranda 1 rights during the encounter. The district court
granted the motion, concluding that Sagapolutele-Silva was in
custody during the investigation for OVUII because the
investigating officers had probable cause to arrest her for
excessive speeding, a petty misdemeanor. The Intermediate Court
of Appeals (ICA) affirmed.
On appeal, the State asks us to clarify when a suspect
is in custody for purposes of administering the prophylactic
warnings against self-incrimination required by article I,
section 10 of the Hawaiʻi Constitution. Although our cases have
consistently stated that the custody test is one of totality of
the circumstances, some of our precedent has nonetheless
indicated that the presence of probable cause alone is
dispositive.
We hereby clarify that a court must evaluate the
totality of the circumstances to determine whether a suspect is
in custody such that Miranda warnings are required before a
police officer may interrogate them. That formulation is
consistent with the purposes of Miranda since it focuses the
inquiry on whether police have created a “coercive atmosphere.”
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2
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See, e.g., State v. Melemai, 64 Haw. 479, 482, 643 P.2d 541, 544
(1982) (Miranda warnings are required when “the totality of
circumstances created the kind of coercive atmosphere that
Miranda warnings were designed to prevent”); State v. Wyatt, 67
Haw. 293, 299, 687 P.2d 544, 549 (1984) (“the ultimate test is
whether the questioning was of a nature that would subjugate the
individual to the will of his examiner and thereby undermine the
privilege against compulsory self-incrimination” (citations
omitted) (internal quotation marks omitted)).
Almost forty years ago, we considered the coerciveness
of roadside questioning in Wyatt. The defendant there was
ordered to pull over after officers observed her driving at
night with no headlights on, and officers then smelled alcohol
emanating from her vehicle. We held that Miranda warnings were
not required at that point since the circumstances were not
intimidating or coercive, but rather constituted “on-the-scene
questioning of brief duration conducted prior to arrest in
public view.” Wyatt, 67 Haw. at 300, 687 P.2d at 550; see also
State v. Kuba, 68 Haw. 184, 188, 706 P.2d 1305, 1309 (1985)
(holding, under facts “almost indistinguishable” from Wyatt,
that Miranda warnings were not required before the police began
asking questions). Wyatt and Kuba have not been overruled and
their totality-of-the-circumstances approach should be applied
3
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here. Accordingly, probable cause is relevant but not
dispositive to determining whether a person is in custody.
This case illustrates why it is important to assess
the relevance of probable cause in light of all the
circumstances. Sagapolutele-Silva was observed driving at
thirty-two miles per hour over the speed limit; if she had been
driving just three miles per hour slower, the officer would not
have had probable cause to arrest her for the offense of
excessive speeding. Hawaiʻi Revised Statutes (HRS) § 291C-
105(a)(1) (2007). 2 That three-mile-per-hour difference had no
effect on the coerciveness of the situation from Sagapolutele-
Silva’s point of view. Under the totality of the circumstances,
Sagapolutele-Silva was not in custody when she was pulled over
or during the administration of the standardized field sobriety
test (SFST). Accordingly, Miranda warnings were not required,
and there was no illegality which would taint her subsequent
statements as fruit of the poisonous tree.
We therefore vacate the district court’s order
suppressing Sagapolutele-Silva’s statements, vacate the judgment
of the ICA affirming that Sagapolutele-Silva was in custody
during the traffic stop, and remand the case to the district
court for further proceedings.
2 See infra note 5.
4
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II. BACKGROUND
Sagapolutele-Silva was arrested after a traffic stop
on March 31, 2018. She was charged in the District Court of the
First Circuit 3 with one count of OVUII, in violation of HRS
§§ 291E-61(a)(1) and/or (a)(3) (Supp. 2015), 4 and one count of
excessive speeding, in violation of HRS § 291C-105(a)(1) (2007). 5
Sagapolutele-Silva moved to suppress any statements
she made during the traffic stop on the ground that she was not
advised of her Miranda rights during the encounter. At the
hearing on the motion, the Honolulu Police Department (HPD)
officers involved in the traffic stop, Officers Franchot
Termeteet and Bobby Ilae, testified. Officer Termeteet
testified to pulling over Sagapolutele-Silva after observing her
driving seventy-seven miles per hour in an area where the speed
3 The Honorable Summer M. M. Kupau-Odo presided.
4 Sagapolutele-Silva was charged with violating HRS §§ 291E-
61(a)(1) and/or (a)(3) (Supp. 2015), which provide:
(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; [or] . . . .
(3) With .08 or more grams of alcohol per two hundred
ten liters of breath[.]
5 Sagapolutele-Silva was charged with violating HRS § 291C-
105(a)(1) (2007), which provides: “No person shall drive a motor vehicle at a
speed exceeding[] [t]he applicable state or county speed limit by thirty
miles per hour or more[.]” HRS § 291C-105(c) provides that “[a]ny person who
violates this section shall be guilty of a petty misdemeanor.”
5
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limit was forty-five miles per hour, and drifting between lanes
without signaling on the H-1 freeway in Honolulu. On cross-
examination, Officer Termeteet testified that based on his
observations of her speeding, he had probable cause to arrest
Sagapolutele-Silva for excessive speeding and that after being
stopped, she was not free to leave.
Officer Termeteet informed Sagapolutele-Silva “that I
was stopping her for speeding”; in response, she acknowledged
that she had been speeding. Officer Termeteet testified that he
smelled “a strong odor of alcohol coming from within the
vehicle,” but he could not determine from whom the odor emanated
because there were four passengers in the car. He asked
Sagapolutele-Silva for her license, vehicle registration, and
proof of insurance. She produced a permit for a commercial
driver’s license, and explained that she had a regular license
but did not have it with her; she also provided him with a
safety-inspection card. Officer Termeteet observed that
Sagapolutele-Silva had red, watery, and glassy eyes. Officer
Termeteet asked Sagapolutele-Silva if she would participate in
the SFST; she agreed to do so.
Officer Ilae testified that he was “covering Officer
Termeteet on a traffic stop” and administered the SFST to
6
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Sagapolutele-Silva. 6 After asking her again whether she would be
willing to participate in the SFST, he asked a series of
“preliminary questions” sometimes referred to as the medical
rule-out 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.” Officer Ilae testified that these
questions are asked “to help [him] gauge whether or not the
impairment [he is] seeing is medically related or if . . .
there’s a medical emergency.” He testified he would not
administer the SFST if there were a medical emergency, but if
someone did not want to answer the medical rule-out questions,
he would nonetheless continue with the test. On cross-
examination, however, he testified he had never in fact
administered the SFST without asking the medical rule-out
questions.
Officer Ilae then administered the SFST. He
instructed Sagapolutele-Silva on each of the three components –
the horizontal gaze nystagmus, the walk-and-turn, and the one-
6 The record does not reflect when Officer Ilae arrived on the
scene. On cross-examination, Officer Ilae testified that Sagapolutele-Silva
was already out of the car when he got there.
7
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leg stand – to which she replied that she understood and had no
questions. After completing the SFST and giving Sagapolutele-
Silva a preliminary alcohol screening, Officer Ilae then told
her “that she was over” and was being arrested. As Officer Ilae
walked back to his car with Sagapolutele-Silva following him, he
heard her state that “she’s not going to lie, she had a few
beers but her friends [were] more impaired than she was.”
The district court orally granted the motion to
suppress, concluding that Sagapolutele-Silva was in custody and
subject to interrogation because Officer Termeteet had probable
cause to arrest her when he pulled her over. In its written
order, the district court made, as relevant here, the following
findings of fact and conclusions of law:
FINDINGS OF FACT
. . .
2. Officer Termeteet . . . measure[d] Defendant’s speed at
77 miles per hour in a 45 mile per hour zone.
. . .
5. While following Defendant’s vehicle, Officer Termeteet
observed Defendant drift into lane number 1, completing
a lane change without signals and then drift from lane 1
back to lane 2, completing another lane change without
signals.
6. Officer Termeteet activated his blue flashing lights
and Defendant’s vehicle came to a complete stop in the
right shoulder lane.
7. Officer Termeteet approached Defendant’s driver’s side
window and noticed the odor of alcohol coming from her
breath. . . . [and] from within the vehicle. . . .
8. Officer Termeteet asked Defendant for her driver’s
license. . . . Officer Termeteet asked Defendant if she
8
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would be willing to participate in a [SFST]. Defendant
verbally consented to participate in the SFST.
Defendant exited her vehicle and HPD Officer [Ilae] took
over the investigation.
9. When Officer Ilae arrived on scene, Officer Termeteet
apprised him of his observations. Officer Ilae
approached Defendant’s vehicle and began conversing with
her. Officer Ilae asked Defendant if she would be
willing to participate in an SFST. Defendant verbally
consented to participate in the SFST. . . .
10. Defendant was not free to leave while she waited for
Officer Ilae to arrive.
11. Prior to Defendant exiting the vehicle, she was not
free to leave.
12. Defendant was the focus of an OVUII investigation.
13. Officer Termeteet had probable cause to arrest or cite
Defendant for the petty misdemeanor offense of Excessive
Speeding as soon as he stopped her vehicle.
. . .
CONCLUSIONS OF LAW
. . .
7. At the time that Defendant was sitting in her vehicle,
prior to the administration of the SFST, she was not
free to leave, she was the focus of an OVUII
investigation and officers had probable cause to arrest
[her] for at least Excessive Speeding. Officer[s]
Termeteet and Ilae did not need the results of the SFST
to arrest and/or cite Defendant for Excessive Speeding.
Legal custody had attached.
(Footnotes omitted.)
The district court concluded that both the officers’
initial questions, asking if Sagapolutele-Silva would consent to
the SFST, and the medical rule-out questions, asking whether she
understood the instructions, were interrogation; accordingly,
Sagapolutele-Silva’s answers to those questions were suppressed.
The district court also suppressed all evidence obtained
thereafter as fruit of the poisonous tree.
9
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The State appealed the order granting the motion to
suppress, and the ICA affirmed in part and vacated in part in a
published opinion. State v. Sagapolutele-Silva, 147 Hawaiʻi 92,
104, 464 P.3d 880, 892 (App. 2020). As relevant here, the ICA
concluded that Sagapolutele-Silva was in custody for excessive
speeding “[u]nder the totality of the circumstances” because
Officer Termeteet had probable cause to arrest her for that
offense when she was initially stopped. Id. at 100, 464 P.3d at
888. The ICA held, additionally, that “due to Sagapolutele-
Silva being in custody for Excessive Speeding, the medical rule-
out questions, which were asked in relation to the OVUII
investigation here, constituted interrogation.” 7 Id. at 101,
464 P.3d at 889. The ICA further reasoned that although “the
investigation for OVUII in this case constituted a separate and
distinct investigation” from the investigation for excessive
speeding, and Officer Termeteet only had reasonable suspicion of
OVUII, “the failure to provide a Miranda warning when required
for one crime will taint a subsequent interrogation even if the
7 With respect to interrogation, the ICA affirmed the district
court’s conclusion that the medical rule-out questions were interrogation,
and held that the defendant’s answers to those questions were properly
suppressed. State v. Sagapolutele-Silva, 147 Hawaiʻi at 102, 464 P.3d at 890.
Additionally, the ICA held that the defendant’s spontaneous post-arrest
statement that she had drunk a few beers was properly suppressed as fruit of
the poisonous tree. Id. at 104, 464 P.3d at 892. However, the ICA held that
statements made in response to being told why she was stopped were not the
product of interrogation. Id. at 103, 464 P.3d at 891. For a discussion of
interrogation during an OVUII roadside investigation, see State v. Skapinok,
SCWC-XX-XXXXXXX (Haw. 2022).
10
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interrogation relates to a different crime for which Miranda
warnings were not yet required, if a defendant is still in
custody.” Id. at 100-01, 464 P.3d at 888-89.
The State and Sagapolutele-Silva filed applications
for writs of certiorari, both of which this court accepted. The
State asks us to revisit our precedent establishing an
“either/or” test in which the existence of probable cause,
standing alone, is enough to establish that a suspect was in
custody. 8 Sagapolutele-Silva agrees that “the fact of probable
cause for arrest is not determinative on the issue of ‘custody’
for the purposes of Miranda — the determination as to whether an
individual is in ‘custody’ requires an objective determination
of the totality of the circumstances.” But Sagapolutele-Silva
contends that the ICA erred by holding that she was not in
custody during the “separate and distinct” investigation for
OVUII. 9
8 The State’s application notes that the “either/or” rule,
established in State v. Ketchum, 97 Hawai‘i 107, 126, 34 P.3d 1006, 1025
(2001), “is at variance with” Wyatt’s “totality of circumstances” rule and
internally inconsistent with other parts of Ketchum. The State “asks this
Court to clarify that custody for Miranda purposes should be based on a
totality of the circumstances and overrule any cases to the extent that they
suggest otherwise.”
9 The application suggests that because of this framing, the ICA
held Sagapolutele-Silva “was therefore not subjected to ‘custodial
interrogation.’” To the contrary, the ICA agreed that she was in custody,
citing, in part, the existence of probable cause to arrest for excessive
speeding, which “taint[ed]” the OVUII investigation. Sagapolutele-Silva, 147
Hawaiʻi at 101, 464 P.3d at 889.
Sagapolutele-Silva’s application additionally challenges the
ICA’s holding that only some of the questions asked during the encounter were
(continued...)
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III. STANDARD OF REVIEW
“An appellate court reviews a ruling on a motion to
suppress de novo to determine whether the ruling was ‘right’ or
‘wrong.’” State v. Weldon, 144 Hawaiʻi 522, 530, 445 P.3d 103,
111 (2019) (quoting State v. Tominiko, 126 Hawaiʻi 68, 75, 266
P.3d 1122, 1129 (2011)).
IV. DISCUSSION
The self-incrimination clause of article I, section 10
of the Hawai‘i Constitution 10 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 Hawaiʻi 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.” State v. Kamana‘o, 103 Hawai‘i 315, 320, 82 P.3d 401,
406 (2003) (quoting State v. Reyes, 93 Hawai‘i 321, 329, 2 P.3d
725, 733 (App. 2000)). In order to safeguard this right, before
police can interrogate a suspect in custody, “the person must be
(continued . . .)
interrogation and its failure to address fruits of the poisonous tree
argument. For the reasons discussed below, we need not reach these issues
based on our resolution of this case.
10 Article 1, section 10 of the Hawai‘i Constitution states in
pertinent part that no person “shall ... be compelled in any criminal case to
be a witness against oneself.”
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warned that he has a right to remain silent, that any statement
he does make may be used as evidence against him, and that he
has a right to the presence of an attorney, either retained or
appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966); id.
at 455 (“Even without employing brutality, . . . the very fact
of custodial interrogation exacts a heavy toll on individual
liberty and trades on the weakness of individuals.”).
Miranda warnings are also mandated under the Hawai‘i
Constitution, State v. Santiago, 53 Haw. 254, 265–66, 492 P.2d
657, 664 (1971) (“We hold today that the protections which the
United States Supreme Court enumerated in Miranda have an
independent source in the Hawai[ʿ]i Constitution’s privilege
against self-incrimination.”), and we have provided broader
protections under our constitution than exist under the United
States Constitution, id. at 263, 266, 492 P.2d at 662, 664(rejecting Harris v. New York, 401 U.S. 222 (1971), and holding
that defendant who testifies cannot be impeached with statements
obtained in violation of Miranda).
The threshold question for a Miranda analysis is
whether the defendant was subjected to “custodial
interrogation,” defined as “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.” Melemai, 64 Haw. at 481, 643 P.2d at 543
13
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(quoting Miranda, 384 U.S. at 444). Here, the district court
and ICA held that Sagapolutele-Silva was both (1) in custody and
(2) interrogated, and therefore, Miranda warnings were required.
For the following reasons, we disagree with the first
conclusion.
A. Although Our Cases Emphasize That the Relevant Inquiry is
the Totality of the Circumstances, Some Decisions Have
Suggested That the Existence of Probable Cause is
Determinative
As noted above, both parties agree that the existence
of probable cause should not be outcome determinative when
analyzing whether a suspect is in custody for purposes of
Miranda. But when the ICA homed in on whether probable cause
had developed in this case, it did so because, although this
court has repeatedly stated that the test turns on the totality
of the circumstances, some of our precedent also suggests that
probable cause, standing alone, is enough to establish a suspect
was in custody:
[W]e 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 either (1) that the person has become impliedly
accused of committing a crime because the questions of the
police have become sustained and coercive, such that they
are no longer reasonably designed briefly to confirm or
dispel their reasonable suspicion or (2) 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.
State v. Ketchum, 97 Hawai‘i 107, 126, 34 P.3d 1006, 1025 (2001)
(emphases added).
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We take this opportunity to clarify. To determine
whether a suspect is in custody for Miranda purposes under
article I, section 10 of the Hawaiʻi Constitution, a court must
consider the totality of the circumstances, objectively
appraised. The relevant circumstances are those that “betoken[]
a significant deprivation of freedom, ‘such that an innocent
person could reasonably have believed that he or she was not
free to go and that he or she was being taken into custody
indefinitely.’” Id. at 125, 34 P.3d at 1024 (alterations
omitted) (quoting Kraus v. County of Pierce, 793 F.2d 1105, 1109
(9th Cir. 1986)). While the existence of probable cause is
relevant, it is not dispositive in every case.
1. Our cases have never abrogated the totality-of-the-
circumstances inquiry, although they recognize the
relevance of probable cause to arrest
Our cases have consistently emphasized that the
totality of the circumstances should be evaluated in determining
when a person is in custody for Miranda purposes. They have
also consistently noted that the existence of probable cause to
arrest is relevant to that analysis. Although Ketchum indicated
that the existence of probable cause is determinative of
custody, it never abrogated the totality-of-the-circumstances
test – to the contrary, it explicitly affirmed it. Moreover,
far from overruling cases like Wyatt and Kuba, which applied the
test to traffic stops, Ketchum cited them in support.
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Fifty years ago, in State v. Kalai, police went to the
defendant’s home to ask what he knew about a shooting that had
occurred two days prior. 56 Haw. 366, 369, 537 P.2d 8, 11
(1975). We noted that:
What constitutes custodial interrogation outside of the
police station, however, necessarily depends upon the
circumstances of the particular case; and whether the
compulsive factors with which Miranda was concerned are
present must be determined from the totality of the
circumstances. One important factor is the degree to which
the investigation has focused upon a specific individual,
for once a particular individual becomes a prime suspect,
he must be advised of his constitutional rights before any
attempt is made to interrogate him.
Id. (citations omitted).
We observed that the investigation had not yet “zeroed
in” on the defendant, that the defendant voluntarily let the
officers into his home, spoke with them freely, and that “[n]o
questions were asked which might have been calculated to elicit
admissions placing him at the scene” or linking him to the
weapon that was used. Id. at 370, 537 P.2d at 12. Considering
all the circumstances, we concluded that defendant was not in
custody.
Even after the United States Supreme Court held the
following year, in Beckwith v. United States, 425 U.S. 341, 347
(1976), that whether or not the defendant is the “focus” of the
investigation is immaterial, 11 this court continued to recognize
11 The Court held that the relevant question is whether the
defendant was subjected to a “custodial situation,” and noted that it is “the
(continued...)
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that the focus of the investigation is a significant factor.
See, e.g., Melemai, 64 Haw. at 481, 643 P.2d at 544; State v.
Patterson, 59 Haw. 357, 361, 581 P.2d 752, 755 (1978). In
Patterson, police responding to a report of a burglary in
progress at 3 a.m. briefly questioned the defendant outside of a
home; we held that Miranda warnings were not required. Citing
Beckwith, 425 U.S. at 347, we noted that the “focus of the
investigation upon the defendant, standing alone, will not
trigger the application of the Miranda rule,” but acknowledged
that it continued to be an “important factor.” Patterson, 59
Haw. at 361, 581 P.2d at 755. We emphasized that the test
requires consideration of the totality of the circumstances,
including probable cause:
Where the police, prior to questioning the individual, are
in possession of facts sufficient to effect an arrest
without a warrant based on probable cause, it is less
likely that the person confronted would be allowed to come
and go as he pleases. The degree of this likelihood may,
of course, depend upon the nature and gravity of the
offense, as well as other circumstances. In any event,
whether the defendant was in custody or otherwise deprived
of his freedom of action for Miranda purposes is to be
determined from the totality of the circumstances,
objectively appraised. These would include the place and
time of the interrogation, the length of the interrogation,
the nature of the questions asked, the conduct of the
police, and all other relevant circumstances.
Id. (emphasis added) (citations omitted).
(continued . . .)
compulsive aspect of custodial interrogation, and not the strength or content
of the government’s suspicions at the time the questioning was conducted,”
that determines whether Miranda warnings are required. Beckwith, 426 U.S. at
346-347 (quoting United States v. Caiello, 420 F.2d 471, 473 (2d Cir. 1969)).
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Patterson thus indicated that probable cause was
suggestive of custody – a circumstance that might serve as an
indicator that the point of arrest has arrived. 12
Following Patterson, this court continued to hold that
“[p]robable cause to arrest is . . . not determinative, but it
may play a significant role in the application of the Miranda
rule.” Melemai, 64 Haw. at 481, 643 P.2d at 544. 13 In Melemai,
the police were investigating a hit and run in which a jogger
was struck by a pickup truck. Id. at 480, 643 P.2d at 543. The
license plate of the vehicle involved in the accident was
registered to the defendant. Police went to the defendant’s
home, and the defendant arrived in a vehicle matching the
12 Justice Wilson suggests that Patterson adopted a bright-line rule
regarding the significance of probable cause. Dissent at 3-4. However,
respectfully, he fails to consider the context surrounding the passage he
quotes, which suggests to the contrary that all of the circumstances must be
considered:
No precise line can be drawn because each case must
necessarily turn upon its own facts and circumstances, but
we think that the California court in People v. Manis, 268
Cal.App.2d 653, 669, 74 Cal.Rptr. 423, 433 (1969) came as
close as any to delineating, generally, the outer
parameters beyond which on-the-scene interviews may not
proceed without the Miranda warnings:
“(P)ersons 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 or the questioning has ceased to be
brief and casual and become sustained and coercive.”
Patterson, 59 Haw. at 362-63, 581 P.2d at 755-56 (emphasis added).
13 In Melemai, we held that two factors — whether the investigation
had focused on the defendant and whether probable cause existed — “may play a
significant role in the application of the Miranda rule.” 64 Haw. at 481,
643 P.2d at 544.
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description given by a witness to the accident. Officers asked
the defendant to exit his vehicle and for his driver’s license.
When the defendant complied, they asked him “if he had hit
anyone with his car, and defendant answered in the affirmative.”
Id. The police officers then asked why the defendant had left
the scene, and the defendant answered. Id.We held that the defendant’s admission that he hit the
jogger gave the police probable cause. “Inasmuch as the
totality of circumstances created the kind of coercive
atmosphere that Miranda warnings were designed to prevent,
custody attached and Miranda warnings were required. Based upon
our analysis, the defendant’s answer to the first question was
admissible while his answer to the second was not.” Id. at 482,
643 P.2d at 544.
We later revisited this issue in Ah Loo. The
defendant there was observed by police holding a beer while he
stood with a group of people; when officers “detained the group”
and asked the defendant his name, age, and residential address,
he admitted he was underage. 94 Hawai‘i at 209, 10 P.3d at 730.
We held that a defendant is not in custody if, during a
“temporary investigative detention,” the police officer “poses
noncoercive questions to the detained person that are designed
to confirm or dispel the officer’s reasonable suspicion.” Id.
at 211, 10 P.3d at 732. In other words, we clarified that “an
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individual may very well be ‘seized’” pursuant to search and
seizure doctrine “and yet not be ‘in custody,’ such that Miranda
warnings are required as a precondition to any questioning.”
Id. This court cited the rule from Melemai that “if neither
probable cause to arrest nor sustained and coercive
interrogation are present, then questions posed by the police do
not rise to the level of ‘custodial interrogation’ requiring
Miranda warnings.” Ah Loo, 94 Hawaiʻi at 210, 10 P.3d at 731.
In a parenthetical, we cited Melemai for the proposition that
“‘custody’ did not occur until after defendant’s admission of
culpability — uttered in response to [the] police officer’s
question — gave [the] officer probable cause to arrest.” Id. at
211, 10 P.3d at 732.
Accordingly, citing Melemai, we formulated the rule as
follows:
[I]f the detained person’s responses to a police officer’s
questions provide the officer with probable cause to arrest
or, alternatively, if officer’s questions become sustained
and coercive (such that the officer’s questions are no
longer reasonably designed to briefly confirm or dispel his
or her reasonable suspicion), 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.
Id. at 212, 10 P.3d at 733 (first emphasis added).
Thus, up to and including our decision in Ah Loo, our
cases did not indicate that the existence of probable cause
alone was dispositive. Rather, it was a factor to be considered
in light of all the circumstances. Where probable cause
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developed during the course of the officer’s questioning of the
defendant — such as when the defendant admitted hitting a jogger
in Melemai — custody would attach.
That approach makes sense, since the questions and
responses would factor into assessing the coerciveness of the
situation from the defendant’s point of view. In Melemai,
probable cause developed at the scene, in the presence of the
defendant, when the defendant answered affirmatively to the
officer’s question “if he had hit anyone with his car.” 64 Haw.
at 480, 643 P.2d at 543. That question and the defendant’s
answer contributed to a coercive atmosphere of which the
defendant was aware. Id. at 482, 643 P.2d at 544; see also
State v. Hoffman, 73 Haw. 41, 54, 828 P.2d 805, 813 (1992)
(applying Melemai to hold that custody attached when the police
obtained probable cause because defendant admitted to possessing
a bottle of beer in a public park); State v. Russo, 67 Haw. 126,
135-36 & n.6, 681 P.2d 553, 560-61 & n.6 (1984) (officers went
to defendant’s apartment at 4 a.m. to question him about a
murder; Miranda warnings required after defendant told them that
he had recently purchased a handgun and that it was in his car,
which “matched” the description of a car used during the
murder).
A year after Ah Loo, we considered custody under
vastly different circumstances in Ketchum. There, a search
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warrant was executed by at least 60 officers at a home at 7 a.m.
Ketchum, 97 Hawai‘i at 111, 34 P.3d at 1010. The officers broke
into the house, encountered Ketchum and a co-defendant in a
bedroom, ordered them to show their hands, and within a minute
asked Ketchum for personal information including his address.
Considering all of the circumstances, including the display of
force by the officers, we concluded that Ketchum had been “de
facto” arrested since a reasonable person in his position would
have understood that they were being detained indefinitely. Id.
at 111-12, 127, 34 P.3d at 1010-11, 1026.
During the course of our analysis, we reviewed our
precedent, including Ah Loo, which we characterized as holding
that a detainee is in custody when they are “expressly or
impliedly accused of having committed a crime.” Id. at 124, 34
P.3d at 1023 (emphasis added). We acknowledged that “we look to
the totality of the circumstances,” id. at 122, 34 P.3d at 1021(quoting Ah Loo, 94 Hawaiʻi at 210, 10 P.3d at 731), that “there
is no simple or precise bright line delineating when ‘the point
of arrest’ has arrived,” and that “no single factor, in itself,
is dispositive as to when a temporary investigative detention
has morphed into an arrest,” id. at 125, 34 P.3d at 1024. We
then adopted the following two-part, either/or test to determine
at what point the investigatory detention becomes custody:
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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 either (1) that the person has
become impliedly accused of committing a crime because the
questions of the police have become sustained and coercive,
such that they are no longer reasonably designed briefly to
confirm or dispel their reasonable suspicion or (2) 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.
Id. at 126, 34 P.3d at 1025 (first emphasis added). 14
Although seemingly adopting a bright-line rule that
the existence of probable cause is dispositive, Ketchum did not
explicitly overrule our precedent indicating that the
determination of custody requires an evaluation of all the
circumstances. To the contrary, Ketchum expressly affirmed not
only the totality-of-the-circumstances test, but also Wyatt and
Kuba, both of which evaluated the totality of the circumstances
surrounding traffic stops:
The concurring and dissenting opinion “disagree[s] with the
totality of the circumstances formulation seemingly
adopted” by us “in this case.” Acoba and Ramil, JJ.,
concurring in part and dissenting in part . . . , at 129,
34 P.3d at 1028. However, this court consistently
addresses the question whether a defendant has been
subjected to custodial interrogation within the context of
14 One year after Ketchum, we again relied on Ah Loo in State v.
Kaleohano, 99 Hawai‘i 370, 378, 56 P.3d 138, 146 (2002). In Kaleohano, we
held that the defendant — who had been pulled over for a traffic violation
and detained on suspicion of OVUII — was not in custody. Without quoting the
either/or test from Ketchum, Kaleohano emphasized the importance of probable
cause for determining custody: “Ah Loo recognized that, ‘if neither probable
cause to arrest nor sustained and coercive interrogation are present, then
questions posed by the police do not rise to the level of “custodial
interrogation” requiring Miranda warnings.’ We, therefore, examine whether
[the police officer] had probable cause to arrest [the defendant].” Id. at
377, 56 P.3d at 145 (citation omitted) (quoting Ah Loo, 94 Hawai‘i at 210, 10
P.3d at 731).
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the totality of the circumstances. . . . We therefore do
not understand our opinion to be “adopt[ing]” a new
approach in analyzing whether custodial interrogation has
occurred for Miranda purposes.
Id. at 117 n.19, 34 P.3d at 1017 n.19 (emphasis added)
(citations omitted) (citing Ah Loo, 94 Hawaiʻi at 210, 10 P.3d at
731; Kuba, 68 Haw. at 188-90, 706 P.2d at 1309-10; Wyatt, 67
Haw. at 299, 687 P.2d at 549; Patterson, 59 Haw. at 361, 581
P.2d at 755; Kalai, 56 Haw. at 369, 537 P.2d at 11).
Furthermore, Ketchum did not present the circumstances
present here, where the officer had probable cause to arrest
before engaging with the defendant and did not communicate that
fact to the defendant. 15
2. The totality-of-the-circumstances approach, applied in
Wyatt and Kuba, is valid and applies to this case
We hereby clarify that the totality-of-the-
circumstances approach to traffic stops adopted in Wyatt and
Kuba and affirmed in Ketchum remains valid and applies to this
case. The existence of probable cause, while relevant, is not
dispositive, and the proper inquiry in determining whether a
defendant is in custody for Miranda purposes remains the
totality of the circumstances.
15 Although Officer Termeteet told Sagapolutele-Silva that she was
“speeding,” he did not advise her that her speeding was subject to criminal
sanctions. Speeding less than thirty miles per hour over the speed limit is
a non-criminal violation. See, e.g., State v. Fitzwater, 122 Hawai‘i 354,
378, 227 P.3d 520, 544 (2010), as amended (Apr. 5, 2010)
(remanding for entry of judgment of a non-criminal traffic infraction because
the evidence did not prove that the defendant exceeded the speed limit by at
least thirty miles per hour).
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Both our cases and federal courts are in accord that
traffic stops are treated under a totality-of-the-circumstances
analysis. In Berkemer v. McCarty, the United States Supreme
Court rejected a “rule under which questioning of a suspect
detained pursuant to a traffic stop would be deemed ‘custodial
interrogation’ if and only if the police officer had probable
cause to arrest the motorist for a crime,” explaining:
The threat to a citizen’s Fifth Amendment rights that
Miranda was designed to neutralize has little to do with
the strength of an interrogating officer’s suspicions.
And, by requiring a policeman conversing with a motorist
constantly to monitor the information available to him to
determine when it becomes sufficient to establish probable
cause, the rule proposed by respondent would be extremely
difficult to administer.
468 U.S. 420, 435 n.22 (1984).
The defendant in Berkemer was pulled over after a
state trooper saw him weaving in and out of traffic. After the
defendant exited his vehicle, the officer noticed he had trouble
standing and decided to charge him with a traffic offense and to
prevent him from leaving the scene. Id. at 423. The Supreme
Court held that Miranda warnings were not required, and
distinguished roadside stops from the circumstances at issue in
Miranda and its progeny. Id. at 441. First, during ordinary
traffic stops, detentions are usually brief and presumptively
temporary; second, traffic stops are usually conducted in
public, where the atmosphere is “substantially less ‘police
dominated.’” Id. at 439-40. While roadside stops may morph
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into custodial situations if the defendant is “subjected to
treatment that renders him ‘in custody’ for practical purposes,”
the Court did not find those circumstances present here. Id. at
440 (citation omitted). The Court explained,
Only a short period of time elapsed between the stop and
the arrest. At no point during that interval was
respondent informed that his detention would not be
temporary. Although [the arresting officer] apparently
decided as soon as respondent stepped out of his car that
respondent would be taken into custody and charged with a
traffic offense, [the officer] never communicated his
intention to respondent. A policeman's unarticulated plan
has no bearing on the question whether a suspect was ‘in
custody’ at a particular time; the only relevant inquiry is
how a reasonable man in the suspect's position would have
understood his situation.
Id. at 441-42.
As we explained in Wyatt, “the ultimate test is
whether the questioning was of a nature that ‘would “subjugate
the individual to the will of his examiner” and thereby
undermine the privilege against compulsory self-incrimination.’”
67 Haw. at 299, 687 P.2d at 549 (quoting Rhode Island v. Innis,
446 U.S. 291, 299 (1980)). The question of custody therefore
turns on the perceptions of a reasonable person in the
detainee’s position. 16 Ketchum, 97 Hawai‘i at 125, 34 P.3d at
16 Indeed, Sagapolutele-Silva faults the ICA for treating the OVUII
as a “separate and distinct” OVUII investigation in which probable cause had
not yet developed, and we agree that this bifurcation of the traffic stop
into two investigations for two crimes – while understandable given our
either/or test – does not reflect reality. A suspect probably does not
perceive two separate and concurrent investigations during a single police
encounter, and the existence of probable cause for one crime, but not the
other, is unlikely to impact whether a reasonable person in the suspect’s
position would perceive themselves as effectively under arrest.
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1024 (reciting the test as whether “[an] innocent person could
reasonably have believed that he [or she] was not free to go and
that he [or she] was being taken into custody indefinitely”
(quoting Kraus, 793 F.2d at 1109)). While “[a]n officer’s
knowledge or beliefs may bear upon the custody issue if they are
conveyed, by word or deed, to the individual being questioned,”
they “are relevant only to the extent they would affect how a
reasonable person in the position of the individual being
questioned would gauge the breadth of his or her ‘“freedom of
action.”’” Stansbury v. California, 511 U.S. 318, 325 (1994)
(citations omitted) (quoting Berkemer, 468 U.S. at 440). The
existence of probable cause that is not disclosed to the suspect
— as opposed to when a suspect is confronted with the officer’s
suspicions, or the evidence supporting them — is unlikely to
impact the suspect’s perceptions of the encounter. 17 By the same
17 Our review of other jurisdictions suggests that, consistent with
the principle that the objective perspective of the suspect controls,
probable cause usually fits into the totality-of-the-circumstances analysis
as follows:
[W]hile the place of the interrogation is a very
significant factor, it must be considered together with the
other surrounding circumstances. In ascertaining, as
called for by Miranda, whether the deprivation of freedom
of action was “significant” (i.e., whether the
circumstances were “likely to affect substantially the
individual’s ‘will to resist and compel him to speak where
he would not otherwise do so freely’”), it is particularly
important whether some indicia of arrest are present. A
Court is not likely to find custody for Miranda purposes if
the police were not even in a position to physically seize
the suspect, but is likely to find custody if there was
physical restraint such as handcuffing, drawing a gun,
(continued...)
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token, an after-the-fact determination that the police could
have arrested the detainee should play little role in
determining whether or not the detainee felt they were under
arrest.
As discussed earlier, see supra section IV.A.1, our
cases recognize that it is highly relevant when probable cause
develops during the course of questioning the defendant. See,
e.g., Melemai, 64 Haw. at 482, 643 P.2d at 544 (holding Miranda
warnings were required where probable cause developed at the
scene and custody attached); see also Ah Loo, 94 Hawaiʻi at 212,
10 P.3d at 733 (“[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 [provide Miranda warnings].”). The defendant is present
(continued . . .)
holding by the arm, or placing into a police car. Merely
having the suspect move a short distance to facilitate
conversion does not itself constitute custody. Also
relevant are whether or not the suspect was “confronted
with evidence that was at least sufficient to establish
probable cause,” or was told that there was a warrant for
his arrest or, on the other hand, that he was free to leave
and, if the events occur at the station, whether or not
booking procedures were employed.
2 Wayne R. LaFave et al., Criminal Procedure § 6.6(f) (4th ed. 2021)
(emphasis added) (footnotes omitted); see, e.g., State v. Williams, 15 A.3d
753, 755 (Me. 2011) (explaining the factors used to determine whether a
suspect was in custody, including “the existence or non-existence of probable
cause to arrest (to the extent communicated to the defendant)” (emphasis
added)); People v. Null, 233 P.3d 670, 677 (Colo. 2010) (holding that the
defendant was in custody because, inter alia, defendant knew the police had
grounds to arrest him); State v. Ortiz, 382 S.W.3d 367, 373 (Tex. Crim. App.
2012) (noting that a suspect may be in custody “if the officer manifests his
belief to the detainee that he is a suspect”).
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during that questioning, and both the officer’s questions and
the defendant’s answers can contribute to a coercive atmosphere
of which the defendant is aware.
However, probable cause developed prior to the
officer’s questioning of the suspect is a far different matter.
While we have recognized that it is relevant to assessing
whether the defendant was in fact free to leave, see Patterson,
59 Haw. at 361, 581 P.2d at 755 (“Where the police, prior to
questioning the individual, are in possession of facts
sufficient to effect an arrest without a warrant based on
probable cause, it is less likely that the person confronted
would be allowed to come and go as he pleases.”), it has limited
relevance to assessing the coerciveness of the encounter from
the defendant’s point of view. The instant case provides a good
example: although Officer Termeteet told Sagapolutele-Silva that
she had been “speeding,” and although she acknowledged that to
be the case, there is nothing to indicate that Sagapolutele-Silva
understood that she had implicated herself in a crime. Indeed,
had she been going only three miles per hour slower, Officer
Termeteet would not have had probable cause to arrest her for
excessive speeding.
In Wyatt, we considered whether Miranda warnings were
required for “roadside questioning of the defendant after she
was stopped for operating a motor vehicle on a street in Waikiki
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without lighted headlamps in violation of the City’s traffic
code.” 67 Haw. at 298, 687 P.2d at 549. The officer there
directed the defendant to pull her vehicle over, asked for her
documents, and noticed a smell of liquor emanating from the
vehicle. He asked the defendant if she had been drinking, which
she “readily admitted.” Id. at 296-97, 687 P.2d at 547-48. He
then asked if she would be willing to perform a field sobriety
test, and she agreed. The test indicated she might have been
under the influence of intoxicants, and she was arrested. Id.
at 297, 687 P.2d at 548.
We held that the officer was not required to advise
the defendant of her Miranda rights before asking her if she had
been drinking, noting:
[T]he record does not reveal the intimidating or inherently
coercive factors usually extant when interrogation is
conducted in a custodial setting. Rather, what transpired
here may be more aptly described as on-the-scene
questioning of brief duration conducted prior to arrest in
public view. In short, the circumstances surrounding the
incident cannot support an inference that Miranda rights
were triggered yet ignored; for nothing in the record
suggests the setting was custodial or that the
interrogation was of a nature likely to subjugate the
defendant to the will of her examiner and undermine the
constitutionally guaranteed privilege against self-
incrimination.
Id. at 300-301, 687 P.2d at 550 (footnote omitted).
A year later, we affirmed the holding in Wyatt under
“almost indistinguishable” facts in Kuba. There, the defendant
was stopped by police after straddling two lanes and traveling
five miles per hour in a twenty-five mile per hour zone. Kuba,
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68 Haw. at 185, 706 P.2d at 1307. An officer stopped the
defendant, requested his license, and asked him to step out of
the vehicle. The officer observed that the defendant appeared
disoriented and unsteady on his feet. The officer told the
defendant the reason for the stop and informed him that he
suspected the defendant of driving while intoxicated. The
defendant responded that he had consumed four beers at a
downtown bar, and the officer asked him if he “normally gets
wasted on four beers.” Id. In response, the defendant stated
that he had “also smoked some marijuana.” Id. at 185-86, 706
P.2d at 1307. After failing a field sobriety test, the
defendant was arrested for driving under the influence of
alcohol in violation of HRS § 291-4 (1976). 18 Id. at 186, 706
P.2d at 1308.
As in Wyatt, we held that the officer was not required
to advise Kuba of her Miranda rights before asking questions.
Id. at 189, 706 P.2d at 1310. We noted that the officer’s
roadside questioning, “similar to that in Wyatt,” was composed
of “legitimate, straightforward, and noncoercive question[s]
necessary to obtain information to issue a traffic citation.”
Id. at 188-89, 706 P.2d at 1309-10.
18 This charge was later amended to a charge of driving while under
the influence of drugs in violation of HRS § 291-7 (1976). Id.
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Nothing in Wyatt or Kuba suggests that the existence
of probable cause should be dispositive of whether the defendant
was in custody. Significantly, the defendant in Wyatt had been
observed by the officer driving without her lights on, which we
noted was defined by the Traffic Code of the City and County of
Honolulu as a misdemeanor punishable by up to ten days in prison
for a first offense. Wyatt, 67 Haw. at 296 n.3, 687 P.2d at 547
n.3. Yet the existence of probable cause to arrest for that
criminal offense did not enter into this court’s consideration
in either case. 19 Rather, this court focused on the coerciveness
of the encounter viewed in light of the totality of the
circumstances. Wyatt, 67 Haw. at 299, 687 P.2d at 549; see also
Kuba, 68 Haw. at 189, 706 P.2d at 1309-10.
That approach should be upheld, especially in the
traffic context, because it allows police to adequately
investigate before deciding whether to arrest a suspect or to
simply issue a citation. See Patterson, 59 Haw. at 361-362, 581
P.2d at 755 (“The adoption of the Miranda rule . . . was never
intended to hamper law enforcement agencies in the exercise of
their investigative duties or in the performance of their
traditional investigatory functions.”). A rule that a detainee
19 We noted in passing that “[t]he obvious violation of the Traffic
Code gave [the officers] reason to seek information necessary for the
issuance of a citation.” Wyatt, 67 Haw. at 300, 687 P.2d at 549. However,
under HRS § 803-5 (1982), the officers could have arrested the defendant
since it was a criminal offense.
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is in custody from the moment probable cause exists, and must
accordingly be advised of their Miranda rights before any
questioning can take place, effectively requires police officers
to make an “‘all or nothing’ choice between arrest and
inaction,” which is precisely the situation that investigatory
detentions were intended to prevent. Ah Loo, 94 Hawaiʻi at 211,
10 P.3d at 732 (quoting Patterson, 59 Haw. at 363, 581 P.2d at
756); see also Kernan v. Tanaka, 75 Haw. 1, 38 n.23, 856 P.2d
1207, 1226 n.23 (1993) (“We do not require the police to have
probable cause to arrest prior to the administration of the
field sobriety test because such a requirement unduly burdens
law enforcement.”).
Here, when Officer Termeteet approached Sagapolutele-
Silva’s vehicle, he noticed the odor of alcohol coming from
inside and, during the course of requesting her documents, noted
that she had red, watery, and glassy eyes. He suspected she may
have been drinking, and asked “if she can do the field sobriety
test to make sure she was safe to drive.” Under the bright-
line, either/or rule applied by the district court here, Officer
Termeteet would have been required to give Miranda warnings to
Sagapolutele-Silva as soon as he approached her vehicle, before
he could question her. If she had invoked her right to remain
silent or to have counsel present, Officer Termeteet would not
have been able to conduct a field sobriety test to determine
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whether she was safe to drive and would have been forced to
decide on other facts whether to arrest her or to simply cite
her and allow her to drive away. 20
A bright-line test focusing on probable cause does
not, therefore, serve the purpose of the Miranda rule: to
prevent the police from coercing suspects into answering
incriminating questions against their will. See Howes v.
Fields, 565 U.S. 499, 508–09 (2012) (“‘[C]ustody’ is a term of
art that specifies circumstances that are thought generally to
present a serious danger of coercion.”); Melemai, 64 Haw. at
482, 643 P.2d at 544 (holding Miranda warnings were required
when “the totality of circumstances created the kind of coercive
atmosphere that Miranda warnings were designed to prevent”). In
this case, Officer Termeteet’s questioning was properly limited
to “that which was minimally necessary for him to decide upon a
reasonable course of investigatory action.” Patterson, 59 Haw.
at 364, 581 P.2d at 756.
For the foregoing reasons, we reaffirm that whether or
not a defendant is “in custody” requires “objectively appraising
the totality of the circumstances.” Melemai, 64 Haw. at 481,
20 Officer Termeteet was not required by law to arrest Sagapolutele-
Silva for excessive speeding — as he testified at the suppression hearing, he
had the discretion to issue a citation for excessive speeding and allow her
to drive away. But his decision on whether to cite or arrest her had
significant public safety consequences. As he testified, he wanted to
administer the SFST because “I don’t want her, you know, cite her for the
excessive speeding and then she hurts herself or another person afterwards.”
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643 P.2d at 544. Courts may consider probable cause as part of
that inquiry — and indeed, they should if the circumstances
warrant it, such as when the suspect is confronted with the
facts that establish probable cause. But the ultimate
touchstone is whether, under an objective view of the totality
of the circumstances, the de facto point of arrest has arrived.
Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024.
B. Under the Totality of the Circumstances, Sagapolutele-Silva
Was Not in Custody
The totality-of-the-circumstances custody analysis
looks for “any . . . event[s] or condition[s] that betoken[] a
significant deprivation of freedom, ‘such that an innocent
person could reasonably have believed that he or she was not
free to go and that he or she was being taken into custody
indefinitely.’” Id. (alterations omitted) (quoting Kraus, 793
F.2d at 1109). And “the ultimate test is whether the
questioning was of a nature that ‘would “subjugate the
individual to the will of his examiner” and thereby undermine
the privilege against compulsory self-incrimination.’” Wyatt,
67 Haw. at 299, 687 P.2d at 549 (quoting Innis, 446 U.S. at
299). Relevant factors include: “the time, place and length of
the interrogation, the nature of the questions asked, and the
conduct of the police at the time of the interrogation.” Id.(alterations omitted) (quoting State v. Paahana, 66 Haw. 499,
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503, 666 P.2d 592, 595 (1983)). “[W]hether the investigation
has focused on the suspect and whether the police have probable
cause to arrest him prior to questioning” may be relevant, but
not dispositive. Melemai, 64 Haw. at 481, 643 P.2d at 544. A
temporary investigative detention — such as a routine traffic
stop — is often not custodial under a totality-of-the-
circumstances analysis. Ah Loo, 94 Hawaiʻi at 211, 10 P.3d at
732 (“[G]enerally speaking, a person lawfully subjected to a
temporary investigative detention by a police officer . . . is
not subjected to ‘custodial interrogation’ when the officer
poses noncoercive questions to the detained person that are
designed to confirm or dispel the officer’s reasonable
suspicion.” (Citation omitted.)).
In considering whether a temporary detention has
“morphed into an arrest,” this court looks for factors
traditionally associated with arrest, such as “handcuffing,
leading the detainee to a different location, subjecting him or
her to booking procedures, ordering his or her compliance with
an officer’s directives, using force, or displaying a show of
authority beyond that inherent in the mere presence of a police
officer.” Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024 (quoting
Kraus, 793 F.2d at 1109); see also People v. Null, 233 P.3d 670,
676-77 (Colo. 2010) (holding traffic stop became custodial after
the defendant failed several sobriety tests, including a
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portable breath test, police surrounded the defendant and
prevented him from walking away, and the defendant was detained
for fifteen minutes).
Here, the totality of the circumstances show that
Sagapolutele-Silva was not in custody for purposes of article I,
section 10 of the Hawaiʻi Constitution until after the SFST.
Although the district court concluded that “legal custody had
attached,” it made no finding that Sagapolutele-Silva’s freedom
of movement had been curtailed to a degree “that betoken[ed] a
significant deprivation of freedom such that an innocent person
could reasonably have believed that he or she was not free to go
and that he or she was being taken into custody indefinitely.”
Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024 (quotation marks,
citation, and alterations omitted). And indeed, the relevant
circumstances did not support such a finding. Although the
officers had probable cause to arrest Sagapolutele-Silva for
excessive speeding and she had become the focus of an OVUII
investigation, the officers’ conduct did not suggest that she
was in fact under arrest until after the SFST. Before the SFST,
Sagapolutele-Silva was not told she was being arrested; she was
not handcuffed or taken to the police station; there were, at
most, two officers present during the traffic stop, which
occurred “in public view,” Wyatt, 67 Haw. at 300, 687 P.2d at
550, and neither officer used physical force or displayed “a
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show of authority beyond that inherent in the mere presence of a
police officer,” Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024; see
Patterson, 59 Haw. at 363-64, 581 P.2d at 756 (finding no
custody where “[n]o guns were drawn and kept upon the
defendant,” “he [was not] confronted and subjected to an
overbearing show of force,” “[t]he interview itself was brief,”
and “[t]he questions were not couched in accusatory terms”).
Although Sagapolutele-Silva exited her vehicle, that does not
necessarily turn the traffic stop into a custodial arrest. See
Kernan v. Tanaka, 75 Haw. 1, 38, 856 P.2d 1207, 1226 (1993)
(“Ordering the driver to exit the vehicle is an extension of the
[temporary investigative] seizure that must be accompanied by
sufficient facts to support the officer’s action.”).
Under a totality-of-the-circumstances analysis,
Sagapolutele-Silva was not in custody up to and during her
performance on the SFST. Objectively viewed, the circumstances
of the traffic stop did not rise to the level of a de facto
arrest until after that point. Ketchum, 97 Hawai‘i at 125, 34
P.3d at 1024. “Custody” is a necessary component of custodial
interrogation, and so the conclusion that Sagapolutele-Silva was
not in custody ends the inquiry — we need not and do not
consider whether the officers “interrogated” her during the
encounter. Her statements made during this pre-arrest period
accordingly need not be suppressed for want of Miranda warnings.
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In light of our conclusion that there was no custody in this
case until after the SFST, any evidence suppressed as fruit of
the poisonous tree likewise need not be suppressed. We
therefore vacate the district court’s order suppressing all of
Sagapolutele-Silva’s statements up to, during, and after her
performance on the SFST. 21
V. CONCLUSION
For the foregoing reasons, the ICA’s June 19, 2020
judgment on appeal and the June 22, 2020 amended judgment on
appeal are affirmed in part and vacated in part, and the
district court’s June 7, 2019 judgment and August 26, 2019
amended judgment are vacated. This case is remanded to the
district court for further proceedings consistent with this
opinion.
Brian R. Vincent /s/ Mark E. Recktenwald
for Petitioner and Respondent
State of Hawai‘i /s/ Paula A. Nakayama
Alen M. Kaneshiro /s/ Paul B.K. Wong
for Respondent and Petitioner
Tiana F.M. Sagapolutele-Silva
21 The district court suppressed Sagapolutele-Silva’s statement that
she had fewer drinks than her friends on the grounds that it was fruit of
earlier improper questioning. At the time she made that statement, she had
been advised that she was under arrest. We do not opine on whether some
other ground might exist to suppress that statement.
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