State v. Trinque. ( 2017 )

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Electronically Filed
Supreme Court
SCWC-12-0001017
25-MAY-2017
09:21 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellant,
vs.
RICK TRINQUE,
Petitioner/Defendant-Appellee,
and
MILES MARTINEZ,
Defendant.
SCWC-12-0001017
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0001017; CR. NO. 12-1-0105)
MAY 25, 2017
RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND CIRCUIT
COURT JUDGE CHANG, IN PLACE OF NAKAYAMA, J., UNAVAILABLE
OPINION OF THE COURT BY POLLACK, J.
I. INTRODUCTION
On March 19, 2009, Rick Trinque was arrested in a
pasture and handcuffed by the police who were conducting an
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investigation involving the growing of marijuana. Prior to
apprising Trinque of his Miranda rights, police obtained two
statements from Trinque. Later, at the police station, police
obtained a third statement from Trinque when he invoked his right
to counsel while being given Miranda warnings. The Circuit Court
of the Fifth Circuit (circuit court) concluded that the first and
second statements had been unlawfully elicited from Trinque, as
they resulted from pre-Miranda custodial interrogation, and that
the third statement was a product of the two earlier illegally
obtained statements. The circuit court accordingly excluded the
statements from being used as evidence at trial. The State
appealed the circuit court’s decision regarding the second and
third statements. The Intermediate Court of Appeals (ICA)
disagreed with the circuit court and vacated its ruling as to the
second and third statements.
In his application for certiorari, Trinque contends that
the circuit court correctly ruled that the second and third
statements were obtained in violation of his constitutional rights
and that the ICA gravely erred in vacating the circuit court’s
decision. For the reasons set forth below, we conclude that the
ICA erred in vacating the ruling of the circuit court.
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II. BACKGROUND
A. Underlying arrest
In the days prior to March 19, 2009, the Kauai Police
Department (KPD) received information that there was marijuana
growing in a 25-acre pasture in Kīlauea, Kauai, and initiated an
investigation. On March 19, 2009, KPD officers were conducting
nighttime surveillance in the pasture when they encountered
Trinque, who was placed under arrest and immediately placed in
handcuffs by Officer Brian Silva (the case agent in charge of the
operation) while still in the pasture.1 Miles Martinez was also
arrested in the pasture. Both Trinque and Martinez were ordered
to sit on rocks within the pasture while officers took pictures of
them and obtained their identification. As Officer Silva and
another officer were escorting Trinque out of the pasture, one of
the officers asked Trinque how he came into the field. Trinque
responded that “he came over the fence by the banana tree using a
ladder that was still located by the fence and that he was caught
red handed” (Statement 1). Once out of the pasture, Trinque was
ordered by the officers to sit on a wooden bench. Trinque
remained handcuffed.
1
Trinque was “at least one of the targets of [KPD’s] investigation.”
Lt. Richard Rosa stated that “[b]ecause of the briefing that we had prior [to
March 19] . . . we had the names of two of the suspects based on who lived
there and stuff, and the officers told me who they were.”
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Officer Silva directed Lt. Richard Rosa to watch over
Trinque. Lt. Rosa was the supervisor for the vice unit and a case
supervisor at that time. That night, Lt. Rosa was dressed in
plain clothes, with his police badge around his neck. Lt. Rosa
had never met Trinque before, but “he knew Rick Trinque by name”
because Trinque’s daughter, whom Lt. Rosa had previously assisted
in a case, had informed him that Trinque was her father.2 KPD
officers told Lt. Rosa who the two detained suspects were, and Lt.
Rosa knew that it was Trinque sitting on the wooden bench when he
approached.
Lt. Rosa identified himself to Trinque as Lt. Rosa from
the Narcotic Unit of KPD, and he informed Trinque that he was the
officer who worked on his daughter’s case. Lt. Rosa then told
Trinque “that if [Trinque] did not believe him, he could talk to
his daughter about it.” In an apparent effort to emphasize his
trustworthiness, Lt. Rosa told Trinque that “he would not lie to
him.” Next, he informed Trinque that he would not “jerk his
chain.” And, to underscore this point, Lt. Rosa told Trinque that
“he would be completely honest with him.” During these
statements, Trinque “sat there listening” and did not speak to Lt.
Rosa. When Lt. Rosa “told Trinque to not make any statements
2
Prior to being assigned to the vice unit, Lt. Rosa was the district
commander in Hanalei when he “assisted” Trinque’s daughter with her case. Lt.
Rosa met Trinque’s daughter when she expressed to him that she was having
problems with persons who might have intended to assault her father.
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until [they] got back to Lihue where we could advise him of his
rights,”3 Trinque responded, “What for? You caught us red handed,
there’s nothing left to say, times are hard and we needed the
money” (Statement 2).
Soon after, Lt. Rosa and Officer Silva transported
Trinque to the Līhue police station, where he was booked and
placed in an interrogation room. Both Lt. Rosa and Officer Silva
were present during Trinque’s interview in the interrogation room.
Trinque was informed of his constitutional rights via the KPD Form
364. Officer Silva asked Trinque if he wanted an attorney, and
Trinque responded that he did.4 Officer Silva then asked Trinque
3
Lt. Rosa noted that there were other police officers around at the
time he approached Trinque and agreed that it was possible to have read Trinque
his rights at the scene.
4
Nowhere on the KPD 364 Form, entitled “Informing Persons Being
Interrogated of Their Constitutional Rights,” does it direct police officers to
ask whether a defendant wants an attorney. Specifically, No. 6 on the form
states, “Do you understand that you have the right to talk to a lawyer before
answering any questions and to have him or her present while I talk to you?”
Thus, the question asks whether the individual understands that he or she has a
right to have an attorney present, not whether he or she wants an attorney.
On direct examination during the circuit court hearing, Officer
Silva testified as follows:
Q: Did Mr. Trinque respond when you asked him whether he
wanted an attorney or not?
A: Yes.
Q: What was his reply?
A: He wanted to talk to an attorney.
On cross-examination, Officer Silva was less confident:
Q: . . . So at what point did you ask him if he wanted an
attorney?
A: Um, he might have told me he wanted an attorney, and
that was the end of the conversation.
(continued . . .)
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whether or not he wanted to make a statement.5 Trinque replied
that he did not want to make a statement since “he got caught red-
handed and was going to jail anyway.”6 (Statement 3) During the
approximately three hours following Trinque’s arrest, Lt. Rosa
remained at Trinque’s side from their initial contact, during
transport, and to Trinque’s placement in the interrogation room
where Statement 3 was obtained.
B. Circuit court proceedings
On February 23, 2012, Trinque was charged by indictment
with Commercial Promotion of Marijuana in the First Degree, in
violation of Hawaii Revised Statutes (HRS) § 712-1249.4(1)(c)
(. . . continued)
Q: What do you mean he might have told you?
A: This happened almost four years ago. He might have
told me he wanted an attorney as I’m going through the
rights, and I said okay, fine. We’re not going through this.
5
The sequence of questions and answers between Officer Silva and
Trinque is unclear from the transcript of the hearing on the motions. However,
the transcript could be read to indicate that Officer Silva continued speaking
with Trinque after Trinque made clear that he wanted an attorney. We note
that, if this were the case, Officer Silva would have violated the well-
established rule that “once the right to counsel has been invoked all
questioning must cease.” State v. Mailo, 69 Haw. 51, 52, 731 P.2d 1264, 1266
(1987). It is not necessary to resolve this issue in light of our disposition
of this case.
6
Trinque’s interview by Officer Silva and Lt. Rosa in the
interrogation room was not audio or video recorded, despite officers having
access to a digital recorder. Officer Silva stated that Trinque’s interview
was not recorded because, at that time, KPD policy did not require officers to
do so. While Officer Silva took notes when interviewing Trinque, he shredded
them once he finished his report.
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(1993), and Unlawful Use of Drug Paraphernalia, in violation of
HRS § 329-43.5(a) (1993).7
The State filed a Motion to Determine Voluntariness of
Statements, contending that Trinque made inculpatory statements
upon arrest and that the statements were admissible at trial.
Trinque filed a motion seeking to suppress Statements 1, 2, and 3
on the grounds that they were obtained in violation of his
constitutional rights under article I, sections 5 and 10 of the
Hawaii Constitution and the Fifth and Fourteenth Amendments to the
United States Constitution (Motion to Suppress Statements).
Trinque contended that he was subjected to pre-Miranda custodial
interrogation when he made Statements 1 and 2, in violation of his
7
HRS § 712-1249.4(1)(c) provides as follows:
(1) A person commits the offense of commercial promotion of
marijuana in the first degree if the person knowingly:
. . . .
(c) Possesses, cultivates, or has under the person’s
control one hundred or more marijuana plants . . . .
The applicable version of HRS § 329-43.5(a) states the following:
(a) It is unlawful for any person to use, or to possess
with intent to use, drug paraphernalia to plant, propagate,
cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or otherwise
introduce into the human body a controlled substance in
violation of this chapter. Any person who violates this
section is guilty of a class C felony and upon conviction may
be imprisoned pursuant to section 706-660 and, if appropriate
as provided in section 706-641, fined pursuant to section
706-640.
Martinez was jointly indicted with Trinque upon the same charges.
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right against self-incrimination. Trinque also argued that his
post-Miranda statement (Statement 3) should be suppressed as a
“fruit of the poisonous tree” because “the statement was made
under the taint of the two prior police illegalities.”
In its response, the State argued that Trinque
“voluntarily made inculpatory statements upon arrest.” The State
maintained that Statement 1 was a spontaneous statement and that
Statements 2 and 3 “were voluntary and not the result of KPD
coercion.” Further, the State contended that Trinque’s statements
were independent of police questioning and that Trinque kept
talking even after he was advised not to make a statement until he
was taken to the station and given Miranda warnings.
Following a hearing on the motions,8 the circuit court
issued its Findings of Fact, Conclusions of Law and Order Granting
Defendant’s Motion to Suppress Statements (Order Suppressing
Statements), in which it determined that, as to Statement 1,
Trinque was “in custody for purposes of Miranda” from the moment
he was placed in handcuffs in the pasture. The court found that
either Officer Silva or the other officer escorting Trinque out of
the pasture specifically asked Trinque how he came into the field
and that the question prompted Trinque to respond that he “came
over the fence by the banana tree using a ladder that was still
8
The Honorable Kathleen N.A. Watanabe presided over the case.
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located by the fence and that he was caught red handed.” The
circuit court concluded that “asking the defendant how he got into
the pasture was an illegal custodial interrogation that the
officer knew or should have known was reasonably likely to elicit
an incriminating response” and that the question did in fact
improperly elicit Statement 1.
The circuit court further concluded that Statement 2 was
the product of an illegal, pre-Miranda custodial interrogation.
The court held that Lt. Rosa’s “unsolicited statements” to Trinque
amounted to “statements that were designed to garner the trust of
the defendant . . . and invite the defendant to open up.” Thus,
the circuit court concluded that Lt. Rosa conducted an
unauthorized pre-Miranda interrogation in violation of Trinque’s
constitutional rights. The circuit court stated that “there was
no legitimate reason” for Lt. Rosa to make these statements to
Trinque, including:
telling [Trinque] that he wasn’t sure if [Trinque] knew who
he was, but that he was the Officer who worked on [his]
daughter’s case, that if Trinque did not believe him, [he]
could talk to his daughter about it, that he would not lie to
[Trinque], he would not “jerk his chain,” and that he would
be completely honest with him.
The circuit court concluded that Lt. Rosa knew or should have
known that his statements would likely elicit an incriminating
response. The court further held that Lt. Rosa’s statement--that
Trinque should not make a statement until he was taken to the
Līhue police station--was presupposition on Lt. Rosa’s part and
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that it “wrongly informed [Trinque] that his statement would be
taken once they read him his rights.”
As to Statement 3, the circuit court concluded that it
“was a ‘fruit’ or an exploitation of the prior illegality of the
‘pre-interview’ conducted by [Lt.] Rosa.” The court held that
Statement 3 was not sufficiently attenuated from Lt. Rosa’s
unauthorized, pre-Miranda interview for the taint of the prior
illegality to dissipate because (1) the same officer (Lt. Rosa)
remained with Trinque through the entire process; (2) Statement 3
came within hours of the pre-interview Miranda violation; and (3)
Statement 3, elicited post-Miranda, was in effect the same thing
Trinque said to Lt. Rosa (Statement 2).
The circuit court therefore granted Trinque’s Motion to
Suppress Statements and issued an Order Suppressing Statements and
an Order Denying State of Hawaii’s Voluntariness of Statements.9
The State timely appealed from these orders.
C. Appellate Proceedings
The State raised two issues in its appeal: (1) whether
the trial court erred in concluding that Statement 2 was the
product of a custodial interrogation and in suppressing Statement
9
The circuit court’s Order Denying Voluntariness was predicated on
its suppression ruling in favor of Trinque: “The Court having taken judicial
notice of the files and records herein and having heard evidence and argument
in the matter, and having GRANTED [Trinque’s] Motion to Suppress Statements,
hereby ORDERS that the State’s Motion to Determine Voluntariness of Statements
is hereby DENIED.”
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2 on that basis; and (2) whether the trial court erred in
suppressing Statement 3 as the unlawful fruit of Statements 1 and
2. The State did not challenge the suppression of Statement 1.
In a published opinion, the ICA held that the circuit
court erred in suppressing Statement 2 on Miranda grounds because
Statement 2 was made when Lt. Rosa told Trinque that he should not
make any statements until he had been advised of his
constitutional rights. State v. Trinque, 137 Hawaii 130, 133, 366
P.3d 186, 189 (App. 2016), cert. granted, No. SCWC-12-0001017,
2016 WL 3129189 (Haw. June 2, 2016). The ICA noted that “there
was no basis for the circuit court to conclude that [Lt.] Rosa
should have known that his words or actions in telling Trinque not
to speak were reasonably likely to elicit an incriminating
response.” Id.Further, the ICA concluded that neither Statement 2 nor
Statement 3 was subject to suppression as an unlawful fruit of
previous statements. Id. at 134, 366 P.3d at 190. The ICA held
that Statement 2 was not an unlawful fruit of Statement 1 because
the police did not exploit Statement 1 to obtain Statement 2. Id.
The ICA also held that Statement 3 was not subject to suppression
as an unlawful fruit of Statement 2 because Statement 2 was not
the product of interrogation. Id. In addition, the ICA
determined that Statement 3 was not a fruit of Statement 1 because
Trinque made Statement 3 post-Miranda, police did not exploit
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Statement 1 to obtain Statement 3, and Statement 3 was a non-
responsive reply to the question asked. Id.
The ICA vacated the circuit court’s Order Suppressing
Statements and Order Denying Voluntariness of Statements, and the
case was remanded to the circuit court for further proceedings.
Id. at 135, 366 P.3d at 191. On certiorari, Trinque presents the
following question: whether the ICA gravely erred in vacating the
circuit court’s decision suppressing Statements 2 and 3 to the
police.
III. STANDARDS OF REVIEW
This court reviews a trial court’s factual findings
under the clearly erroneous standard. State v. Romano, 114 Hawaii
1, 8, 155 P.3d 1102, 1109 (2007).
A finding of fact is clearly erroneous when, despite evidence
to support the finding, the appellate court is left with the
definite and firm conviction in reviewing the entire evidence
that a mistake has been committed. A finding of fact is also
clearly erroneous when the record lacks substantial evidence
to support the finding. We have defined substantial evidence
as credible evidence which is of sufficient quality and
probative value to enable a person of reasonable caution to
support a conclusion.
Lambert v. Waha, 137 Hawaii 423, 431, 375 P.3d 202, 210 (2016)
(quoting Bremer v. Weeks, 104 Hawaii 43, 51, 85 P.3d 150, 158
(2004)). A trial court’s conclusions of law are reviewed under
the right/wrong standard. State v. Joseph, 109 Hawaii 482, 493,
128 P.3d 795, 806 (2006). Where a conclusion of law “presents
mixed questions of fact and law,” it “is reviewed under the
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clearly erroneous standard because the court’s conclusions are
dependent upon the facts and circumstances of each individual
case.” State v. Furutani, 76 Hawaii 172, 180, 873 P.2d 51, 59
(1994) (quoting AIG Haw. Ins. Co. v. Estate of Caraang, 74 Haw.
620, 629, 851 P.2d 321, 326 (1993)).
IV. DISCUSSION
The privilege against self-incrimination guaranteed by
article I, section 10 of the Hawaii Constitution requires that
Miranda warnings be given to an accused in order for statements
obtained during custodial interrogation to be admissible at
trial.10 State v. Joseph, 109 Hawaii 482, 493–94, 128 P.3d 795,
806–07 (2006). It is well settled that Miranda is
a constitutionally prescribed rule of evidence that requires
the prosecution to lay a sufficient foundation--i.e., that
the requisite warnings were administered and validly waived
before the accused gave the statement sought to be adduced at
trial--before it may adduce evidence of a defendant’s
custodial statements that stem from interrogation during his
or her criminal trial.
State v. Ketchum, 97 Hawaii 107, 117, 34 P.3d 1006, 1016 (2001).
Thus, unless Miranda warnings are given, statements made by the
accused that result from custodial interrogation, along with the
fruits of such statements, “may not be used either as direct
evidence in the prosecutor’s case in chief or to impeach the
10
The relevant portion of article I, section 10 that embodies the
Miranda requirement states that “[n]o person shall be . . . compelled in any
criminal case to be a witness against oneself.” Haw. Const. art. I, § 10.
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defendant’s credibility during rebuttal or cross-examination.”
Joseph, 109 Hawaii at 493–94, 128 P.3d at 806–07 (quoting State v.
Santiago, 53 Haw. 254, 265–66, 492 P.2d 657, 664 (1971)); see
State v. Pebria, 85 Hawaii 171, 174–75, 938 P.2d 1190, 1193–94
(1997).11
The illegality in obtaining Statement 1 in this case is
undisputed, so two issues remain for this court’s resolution: (1)
whether Statement 2 was obtained as a result of pre-Miranda
custodial interrogation and in violation of Trinque’s right to
remain silent and (2) whether Statement 3 is a fruit of Statement
1, Statement 2, or both.
A. Whether Statement 2 was obtained in violation of Trinque’s
right to remain silent as a result of “un-Mirandized custodial
interrogation”
Trinque argues that the circuit court correctly
suppressed Statement 2 because Lt. Rosa subjected him to custodial
interrogation prior to advising him of his Miranda rights.
Trinque contends that, while Lt. Rosa did not expressly question
him, Lt. Rosa’s statements “constituted custodial interrogation as
they were designed to invoke an incriminating response.” Trinque
11
This court decreed that Miranda protections “have an independent
source in the Hawaii Constitution’s privilege against self-incrimination” in
Santiago, 53 Haw. at 266, 492 P.2d at 664. In that case, not only did this
court incorporate Miranda into the Hawaii Constitution, the court also
broadened Miranda protections based on the Hawaii Constitution. See id.(disagreeing with the U.S. Supreme Court’s holding in Harris v. New York, 401
U.S. 222 (1971), and concluding that statements elicited through pre-Miranda
custodial interrogation may not be used at trial for impeachment purposes).
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maintains that Lt. Rosa’s statements were made for “no legitimate
reason . . . other than to ingratiate himself to Trinque” and
“entice him into making a statement.”
Pursuant to article I, section 10 of the Hawaii
Constitution, a statement made before the defendant is apprised of
his or her Miranda rights is not constitutionally elicited if it
is established that the “statement was the result of (1)
‘interrogation’ that occurred while he or she was (2) ‘in
custody.’” State v. Kazanas, 138 Hawaii 23, 35, 375 P.3d 1261,
1273 (2016) (quoting Ketchum, 97 Hawaii at 118, 34 P.3d at 1017).
In this case, there is no dispute that Trinque was in custody when
Lt. Rosa elicited Statement 2 from Trinque, as Trinque was already
arrested and handcuffed. See State v. Eli, 126 Hawaii 510, 521–
22, 273 P.3d 1196, 1207–08 (2012) (concluding that the defendant
was deprived of his freedom in a significant way after he had been
placed under arrest); accord Kazanas, 138 Hawaii at 35, 375 P.3d
at 1273; State v. Amorin, 61 Haw. 356, 360, 604 P.2d 45, 48
(1979). Thus, the decisive issue is whether Lt. Rosa’s actions
constituted “interrogation” under article I, section 10.
As previously explained by this court, “interrogation”
encompasses “not only . . . express questioning, but also . . .
any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should
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know are reasonably likely to elicit an incriminating response
from the suspect.” State v. Joseph, 109 Hawaii 482, 495, 128 P.3d
795, 808 (2006) (quoting State v. Jenkins, 1 Haw. App. 430, 437-
38, 620 P.2d 263, 269 (1980)).
The latter portion of the definition focuses primarily upon
the perceptions of the suspect, rather than the intent of the
police. This focus reflects the fact that the Miranda
safeguards were designed to vest a suspect in custody with an
added measure of protection against coercive police
practices, without regard to objective proof of the
underlying intent of the police. A practice that the police
should know is reasonably likely to evoke an incriminating
response from a suspect thus amounts to interrogation.
Id.; accord Kazanas, 138 Hawaii at 39, 375 P.3d at 1277.
Thus, “interrogation” is “any practice reasonably likely
to invoke an incriminating response without regard to objective
evidence of the intent of the police.” Joseph, 109 Hawaii at 495,
128 P.3d at 808 (emphasis added).12 “An incriminating response’
refers to both inculpatory and exculpatory responses.” Id.(citing State v. Wallace, 105 Hawaii 131, 137, 94 P.3d 1275, 1281
(2004)).
There are several important considerations in this
court’s definition: “interrogation” under Miranda refers to (1)
12
A “practice” includes any method or procedure that law enforcement
officers use in the course of interacting with individuals in custody,
regardless of whether such method or procedure is officially approved by the
law enforcement department with which the officers are employed. See, e.g.,
Joseph, 109 Hawaii at 495, 128 P.3d at 808 (pre-interview for the purpose of
obtaining a statement); Kazanas, 138 Hawaii at 40, 375 P.3d at 1278 (asking the
defendant in the police department’s private room in the hospital how his night
was going); Eli, 126 Hawaii at 522–23, 273 P.3d at 1208–09 (officer “asking
Defendant for his side of the story and indicating that it was his chance to
give that story”).
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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.
In this case, Trinque was arrested in the late evening
in an open pasture. Upon his arrest, police handcuffed Trinque,
escorted him from the pasture, and then ordered him to sit on a
wooden bench while still handcuffed. Lt. Rosa approached Trinque
and identified himself as Lt. Rosa from the Narcotic Unit of KPD.
Lt. Rosa then explained to Trinque that he was the police officer
who had worked on Trinque’s daughter’s case. Lt. Rosa told
Trinque “that if [Trinque] did not believe him, he could talk to
his daughter about it.” Lt. Rosa then continued with trust-
building statements. He told Trinque that he would not lie to
him. He advised Trinque that he “wouldn’t jerk his chain.”
Finally, Lt. Rosa informed Trinque that “he would be completely
honest” with him. Only after giving Trinque all of these personal
assurances regarding his trustworthiness did Lt. Rosa tell Trinque
not to make any more statements until he was taken to the police
station in Līhue. Trinque responded, “What for? You caught us
red-handed; times are hard and we needed the money.”
While Lt. Rosa’s introduction of himself to Trinque as a
police officer may have been normal procedure that typically
attends arrests, all of the other words and actions that Lt. Rosa
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directed to Trinque cannot be characterized as anything other than
an attempt to erode Trinque’s guard so that Trinque would freely
talk in a manner that would incriminate himself. As aptly
determined by the circuit court, Lt. Rosa’s words and conduct had
“no legitimate reason” and “were designed to garner the trust of
the defendant, invite the defendant to be honest . . ., and invite
the defendant to open up.” By stating that he helped Trinque’s
daughter in a previous matter, Lt. Rosa’s words may have been
reasonably understood by Trinque as an offer of similar assistance
or at least as an assurance that Lt. Rosa was an ally when in fact
he was in an adversarial position. See Kazanas, 138 Hawaii at 40,
375 P.3d at 1278 (reasoning that the police officer is part “of a
system that was adversarial to” the defendant, such that the
police officer engaging in a conversation with an arrestee “could
not be ‘solely in [the arrestee’s] best interest’”). Couple this
with Lt. Rosa’s statement that he would be honest and not lie to
Trinque and that he would not “jerk [Trinque’s] chain” and it is
readily apparent that the circuit court did not clearly err in
finding that Lt. Rosa was attempting to garner Trinque’s trust so
that Trinque would open up.13
13
The ICA stated that it is unclear why it would be improper for Lt.
Rosa “to inform Trinque that he had worked on Trinque’s daughter’s case and to
tell Trinque that he would not lie to Trinque and would be completely honest
with Trinque” since this was simply an “apparent attempt to develop rapport
with Trinque.” State v. Trinque, 137 Hawaii 130, 133, 366 P.3d 186, 189 (App.
(continued . . .)
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Although Lt. Rosa testified that his intent in
initiating the conversation with Trinque was merely to identify
himself as a police officer, as he was unshaven and in civilian
clothing, Lt. Rosa’s intent is not determinative in analyzing
whether his words and conduct amounted to interrogation. Joseph,
109 Hawaii at 495, 128 P.3d at 808 (stating that whether an
interrogation had transpired primarily focuses on the perceptions
of the defendant); Kazanas, 138 Hawaii at 39—40, 375 P.3d at 1277—
78 (noting that a police officer’s “subjective intent” may not be
used to excuse conduct that reasonably could have elicited an
incriminating response from the defendant).14
Indeed, the circuit court firmly rejected Lt. Rosa’s
explanation of his motive, and the court did not clearly err in
this regard. Not only was that court in the best position to
evaluate credibility, but the circumstances plainly contradict Lt.
Rosa’s explanation. Lt. Rosa was wearing a police badge, and
(. . . continued)
2016), cert. granted, No. SCWC-12-0001017, 2016 WL 3129189 (Haw. June 2, 2016).
However, Lt. Rosa’s repeated personal assurances to Trinque, including
references to Trinque’s daughter, were, as determined by the circuit court,
intended to earn Trinque’s trust, invited Trinque to be honest and to open up,
and were reasonably likely to elicit an incriminating statement from Trinque.
14
Intent of police officer “may be relevant where, for example, ‘a
police practice is designed to elicit an incriminating response from the
accused,’ as it would be ‘unlikely that the practice will not also be one which
the police should have known was reasonably likely to have that effect.’”
Kazanas, 138 Hawaii at 39–40, 375 P.3d at 1277–78 (quoting Rhode Island v.
Innis, 446 U.S. 291, 301 n.7 (1980)). Thus, while police intent may not be
used to excuse conduct that reasonably could have elicited an incriminating
response, it may be used as “evidence that the police know that they have
designed a practice reasonably meant to elicit incriminating responses”--that
is, a practice amounting to interrogation. Id.19
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Trinque and Martinez were both under arrest and handcuffed.
Several other officers were in the area. If Lt. Rosa’s sole
intention was to identify himself as a police officer, he would
have had to do no more than show Trinque his badge and identify
himself in order to establish his status as a police officer. If
Lt. Rosa merely intended to introduce himself to Trinque, then
there was no legitimate reason for him to say that he assisted
Trinque’s daughter in a previous matter, that he would be honest
and truthful to Trinque, and that he would not “jerk [Trinque’s]
chain.”
In addition, Lt. Rosa’s statement to Trinque to not make
any more statements until he was taken to the police station in
Līhue was inaccurate--for Trinque was not required to make a
statement even after he had been advised of his constitutional
rights--and Trinque may have reasonably been given the impression
that he might as well speak to Lt. Rosa then and there, since he
would be making a statement at the station anyway. Essentially,
Lt. Rosa was implicitly inviting Trinque to speak since he (Lt.
Rosa) would be honest, helpful, and truthful while another police
officer may or may not be. Under the circumstances of this case,
where Lt. Rosa ingratiated himself to Trinque and implied that he
was someone who might be able to provide some form of assistance,
the wording of Lt. Rosa’s flawed advisory (“to not make any more
statements until he was taken to the police station”) was
20
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reasonably likely to elicit Statement 3 (“What for? You caught us
red-handed; times are hard and we needed the money.”). Indeed,
Trinque’s reply (“What for?”) was directly responsive to Lt.
Rosa’s advisory.15 Alternatively, Lt. Rosa’s words could
objectively be viewed as an attempt to establish himself as a
confidante, off the record, so that when it became time to provide
the Miranda warnings, Trinque would trust Lt. Rosa as someone who
would not pull his chain and thus making it more likely that
Trinque would waive his Miranda rights.
The State relies on State v. Ikaika, 67 Haw. 563, 698
P.2d 281 (1985), in arguing that Lt. Rosa’s words and conduct were
a mere pleasantry that did not amount to interrogation. The
defendant in Ikaika confessed to a police officer, who was
acquainted with the defendant, after the police officer asked,
“What’s happening? Must be heavy stuff for two detectives to
bring you down here?” Id. at 565, 698 P.2d at 283. This court
held that the police officer’s statement was a mere “pleasantry”
not amounting to interrogation and that the defendant’s
15
The ICA concluded that Lt. Rosa’s statement was entirely
appropriate, reasoning that “[i]t is difficult to see how telling a defendant
not to make a statement can constitute ‘interrogation.’” Trinque, 137 Hawaii
at 133, 366 P.3d at 189. However, Lt. Rosa’s defective advisory may not be
viewed in isolation; it followed a series of statements that the circuit court
correctly viewed as having no legitimate reason and was designed to garner
Trinque’s trust so that he would open up. Viewing all of these statements in
conjunction with the incorrectly stated advisory, Lt. Rosa’s words and actions
were reasonably likely to elicit, and did elicit, an incriminating response
from Trinque.
21
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“confession was of the nature of an unsolicited, spontaneous
statement made in the absence of any police questioning.” Id. at
567, 698 P.2d at 285. Ikaika is inapposite for the reasons
enumerated in Kazanas.16
As explained by the Kazanas court, the police officer
and the defendant in Ikaika were previously acquainted, and the
police officer was unaware of the circumstances surrounding the
defendant’s arrest. See Kazanas, 138 Hawaii at 38, 375 P.3d at
1276; Ikaika, 67 Haw. at 565, 698 P.2d at 283. Thus, in Ikaika,
the police officer’s words reasonably could be characterized and
perceived by the defendant as a pleasantry not likely to elicit an
incriminating response. Kazanas, 138 Hawaii at 38, 375 P.3d at
1276; Ikaika, 67 Haw. at 567, 698 P.2d at 284–85 (reasoning that,
under the facts of the case, the police officer could not “have or
should [not] have reasonably foreseen that his words or actions
would elicit an incriminating response from the Defendant” and
that, “[a]t most, [the police officer] could have expected that
the Defendant respond to his pleasantry by informing him of the
reasons for the Defendant’s being booked and the case he was
involved in”).
16
The issue in Kazanas was whether the defendant, post-arrest, should
have been advised of his Miranda rights before the police officer engaged him
in small talk while they were inside HPD’s private room at a hospital--a
conversation that then resulted in the defendant’s utterance of an
incriminating statement. Kazanas, 138 Hawaii at 26, 40, 375 P.3d at 1264,
1278.
22
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In this case, as in Kazanas, Lt. Rosa and Trinque were
not previously acquainted; in fact, the night of Trinque’s arrest
was the first time that Lt. Rosa met him. See Kazanas, 138 Hawaii
at 38, 375 P.3d at 1276. In addition, just like the police
officer in Kazanas, Lt. Rosa knew the circumstances behind
Trinque’s arrest since he was previously briefed on the matter.
See id. Thus, when Lt. Rosa stated that he assisted Trinque’s
daughter on a previous case, that he would be honest and not lie
to Trinque, and that he would not “jerk [Trinque’s] chain,” Lt.
Rosa’s statements deliberately ingratiated himself to Trinque and
cannot be taken as “a mere pleasantry.” See id.
It is also noted that the police officer’s conduct in
Kazanas that this court held as constituting interrogation was
less egregious than Lt. Rosa’s conduct in this case. In Kazanas,
the police officer did not guarantee to the defendant that she
would be honest and truthful and did not ingratiate herself to the
defendant or imply that she may be able to offer some assistance
for the defendant’s benefit; the police officer in Kazanas solely
asked a question whose answer she already knew and that,
objectively viewed, was reasonably likely to evoke an
incriminating response. Id. at 26, 375 P.3d at 1264. Here, Lt.
Rosa expressly claimed that he would be honest and truthful and
that he would not mislead Trinque. And by stating that he helped
Trinque’s daughter in the past, Lt. Rosa at least intimated that
23
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he was a friendly party, that he may be able to similarly assist
Trinque, and that he should not be viewed as an adversary. See
id. at 40, 375 P.3d at 1278.
In summary, Trinque was in custody when the exchange
with Lt. Rosa occurred because he was handcuffed, and Lt. Rosa’s
words or actions were reasonably likely to elicit an incriminating
response from Trinque, id., because (1) Lt. Rosa stated that
Trinque could trust him, that he would not mislead Trinque, and
that he would be honest; (2) Lt. Rosa intimated that he was a
friendly party given that he had previously assisted Trinque’s
daughter in another case; (3) Lt. Rosa’s ingratiating words and
actions towards Trinque had no legitimate reason other than to
invoke Trinque’s trust and to induce him to open up; and (4) Lt.
Rosa misinformed Trinque of his constitutional rights.
Accordingly, Statement 2 was elicited by an unlawful, pre-Miranda
custodial interrogation, and therefore, the circuit court did not
clearly err in suppressing this statement pursuant to article I,
section 10 of the Hawaii Constitution. The ICA erred in
concluding otherwise.17
17
Trinque also argues that Statement 2 was a “fruit of the poisonous
tree” because Trinque’s statement to Officer Silva (Statement 1) was illegally
obtained. The circuit court suppressed Statement 2 based on the conclusion
that it was elicited through an unlawful, pre-Miranda custodial interrogation.
The circuit court did not address whether Statement 2 should be suppressed as
an illegal fruit of Statement 1. The ICA ruled that Statement 2 should not
have been suppressed for two reasons: because it was not a product of an
illegal interrogation and because it was not an illegal fruit of Statement 1.
(continued . . .)
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B. Whether Statement 3 was tainted by Statements 1 and 2 under
the “fruit of the poisonous tree” doctrine
Trinque argues that Statement 3 was correctly suppressed
by the circuit court as a “fruit of the poisonous tree” of the
unlawfully obtained statement he made to Officer Silva (Statement
1) because Statement 3 was made only a few hours after Statement 1
and there was a direct connection between Statement 1 and
Statement 3. In addition, Trinque contends that Statement 3 is a
fruit of Statement 2 because Statement 3 was made within hours
after Statement 2 and was a direct result of Lt. Rosa’s unlawful,
pre-Miranda interrogation. The ICA ruled that Statement 3 was not
subject to suppression as the unlawful fruit of Statement 1 or
Statement 2.
“[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
(. . . continued)
Because we conclude that Statement 2 was a product of an unlawful, pre-Miranda
custodial interrogation, we need not reach the issue of whether Statement 2 is
a fruit of Statement 1. However, our disposition should not be viewed as an
endorsement of the ICA’s resolution of this issue.
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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).
Where the government proves 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,
the evidence is not a ‘fruit’ and, therefore, is admissible.
. . .
Id. (quoting Fukusaku, 85 Hawaii at 475, 946 P.2d at 45).18
“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. As applied to this
case, the question posed is as follows: Would the police have
obtained Statement 3 had they not violated Trinque’s
constitutional rights in obtaining Statements 1 and 2.
Accordingly, the State’s burden is to demonstrate that
Statement 3 is not a benefit gained or an advantage derived by the
police from the prior illegality or that the subsequent statement
18
The Poaipuni court noted that, “[a]lthough we have characterized
the independent source doctrine as an ‘exception’ to the exclusionary rule, it
is, in essence, simply a corollary of the fruit of the poisonous tree
doctrine.” Poaipuni, 98 Hawaii at 393 n.6, 49 P.3d at 359 n.6. That is, if a
confession or other evidence has an independent source, then it is not a fruit
of the poisonous tree. Id.
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has become sufficiently attenuated from the initial illegality so
as to purge the taint. See State v. Eli, 126 Hawaii 510, 524, 273
P.3d 1196, 1210 (2012) (reasoning that the State must demonstrate
that the subsequent statement or confession was not predicated on
the initial illegality); State v. Kitashiro, 48 Haw. 204, 218—22,
397 P.2d 558, 566—68 (1964) (holding that the State must prove
that the illegal search did not “induce” the defendant’s
subsequent confession).
Hawaii appellate courts have previously pronounced that
whether a confession is sufficiently attenuated from the
illegality depends on the facts of a particular case, and factors
relevant to the analysis 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. See Eli, 126 Hawaii at 524, 273 P.3d at 1210; State
v. Mariano, 114 Hawaii 271, 281, 160 P.3d 1258, 1268 (App.
2007).19
In determining what constitutes exploitation that taints
subsequently obtained evidence, previous “fruit of the poisonous
tree” cases decided by this court are instructive. In State v.
Joseph, this court held that a previous illegality was exploited
19
See also Brown v. Illinois, 422 U.S. 590, 603–04 (1975).
27
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to elicit a statement or confession where the defendant, post-
Miranda, “was subsequently questioned on the same matter in order
that he would repeat his earlier[, illegally obtained] statement.”
109 Hawaii 482, 499, 128 P.3d 795, 812 (2006). In Poaipuni, this
court held that the physical evidence was inadmissible because it
“came to light only as a result of the exploitation of the
previous illegality, i.e., the execution of the defective search
warrant.” Poaipuni, 98 Hawaii at 393, 49 P.3d at 359. As to the
subsequent confession, the Poaipuni court explained that it was
also tainted by the unlawfully obtained physical evidence because,
had the physical evidence not been discovered, the officer would
not have asked the question that resulted in the defendant’s
confession. Id. at 394, 49 P.3d at 360.
In Eli, this court explained that the defendant’s
“purported ‘waiver’ of his right to remain silent, made after
Miranda warnings, was directly ‘predicated’ on his agreement, pre-
Miranda, to make a statement,” an agreement that he made without
being apprised of his right to remain silent. Eli, 126 Hawaii at
524, 273 P.3d at 1210. Under these circumstances, the court held
that “the Mirandized statement was obtained by exploiting the
illegality of the pre-interview procedure.” Id. That is, the
advantage derived from the improper police pre-interview procedure
28
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played a role in the statement obtained despite the intervention
of properly administered Miranda warnings.
The common thread that unifies these cases is that the
prior illegality contributed in the subsequent obtainment of
evidence, statements, or confessions. Viewed another way, these
cases involved the situation in which the State failed to
demonstrate that the subsequently obtained evidence, statements,
or confessions would have been discovered even in the absence of
the prior illegality. That is, the State was unable to meet its
burden of showing that the discovery of the challenged evidence
was not a benefit derived from the prior illegality.
In this case, the circuit court held that Statement 3
was an exploitation of the prior illegality of Lt. Rosa’s “pre-
interview” and, thus, inadmissible as evidence under “the fruit of
the poisonous tree” doctrine. The circuit court concluded that
the State failed to demonstrate that the statement was
“sufficiently attenuated” from the illegally obtained Statements 1
and 2 to dissipate the taint of the police officers’ Miranda
violation. The circuit court cited three reasons: (1) the same
officer, Lt. Rosa, remained with Trinque through the entire
process; (2) Statement 3 came within hours after Lt. Rosa’s “pre-
interview” Miranda violation; and (3) Statement 3 was “in effect
the same thing [Trinque] said to [Lt.] Rosa pre-Miranda.”
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The circuit court’s ruling--that Statement 3 was a fruit
of Statements 1 and 2--is not clearly erroneous and supported by
the State’s failure to introduce adequate evidence tending to
demonstrate that Statement 3 would still have been obtained had
the previous illegality that resulted in the utterance of
Statements 1 and 2 not occurred. The State does not discharge its
burden of showing attenuation by relying on “surmise and
inference.” Kitashiro, 48 Haw. at 222, 397 P.2d at 568(explaining that evidence showing that there was “an independent
origin [for] the confession was . . . necessary in order for the
trial court to exercise its fact-finding prerogative in respect of
the contention that the confession was tainted”); State v. Pauu,
72 Haw. 505, 511, 824 P.2d 833, 837 (1992) (holding that “[t]he
State’s argument [was] not based on any evidence but is merely
surmise and speculative inference,” such “that the State ha[d]
failed to meet its burden of showing that the taint of the prior
illegal search had been dissipated or that there was an
independent source which induced [the defendant] to waive his
constitutional rights”). In addition, the State did not
sufficiently establish an “independent origin” for Statement 3.
See Kitashiro, 48 Haw. at 221–22, 397 P.2d at 567–68 (holding that
the confession was a fruit of the illegal search in part because
the State failed to establish by substantial evidence that the
confession had an independent source).
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The circuit court’s determination that Statement 3 was
not sufficiently attenuated from Statements 1 and 2 is also
supported by the record and, hence, not clearly erroneous.
Statement 3 was made within approximately three hours after
Statements 1 and 2 and, contrary to the State’s assertion, the
fact that Statement 3 was made in a different location does not
demonstrate sufficient attenuation. Cf. id. at 218, 397 P.2d at
566 (initial illegality and subsequent confession not sufficiently
attenuated when, among other things, only three hours separated
the two).
The circuit court’s further determination that there
were no intervening circumstances that sufficiently attenuated
Statement 3 from Statements 1 and 2 so as to purge the taint is
also not clearly erroneous. As stated by the court, Lt. Rosa, who
unlawfully elicited Statement 2 from Trinque, was with Trinque
while he was transported to Līhue. Additionally, Lt. Rosa and
Officer Silva, the latter of whom was involved in the illegal
procurement of Statement 1, were both present during the
advisement of Miranda rights that resulted in Trinque uttering
Statement 3. Cf. Joseph, 109 Hawaii at 499, 128 P.3d at 812(holding that there was lack of attenuation between the illegal
pre-interview and the post-interview partly because the post-
interview “was conducted by the same two detectives in the same
interrogation room with no lapse in time between it and the pre-
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interview”); Eli, 126 Hawaii at 524–25, 273 P.3d at 1210–11
(holding that there was lack of attenuation because “[b]oth the
pre-interview and post-Miranda interview were conducted by the
same detective”). Given that Officer Silva was present when
Trinque uttered Statement 1, and because Lt. Rosa was the officer
who procured Statement 2, Trinque was not in a neutral position to
contradict or recant these earlier statements. See Kitashiro, 48
Haw. at 218, 397 P.2d at 566 (explaining that the police used
illegally seized evidence “to instill in defendant a realization
of the hopelessness of his situation”); cf. Pauu, 72 Haw. at 510,
824 P.2d at 836 (reasoning that the defendant had no choice but to
confess because the police already had the evidence to convict him
after illegally searching the defendant’s bag and that, therefore,
the confession was a fruit of the illegal search).20 Also notable
is the fact that Statement 3 was made without the benefit of
counsel or after Trinque had an opportunity to speak with family
or friends. See Medeiros, 4 Haw. App. at 252-53, 665 P.2d at 184-
20
The State contends that the hopelessness that Trinque felt, which
led to Statement 3, was the result of his being caught by the police officers
in the marijuana patch and not at all related to the illegal conduct of Lt.
Rosa and Officer Silva. However, this assertion as to the source of any
hopelessness appears to be based on supposition. The circuit court rejected
the State’s contentions concerning sufficient attenuation of Statement 3 from
the taint of Statements 1 and 2, and, based on the evidence in the record, that
finding is not clearly erroneous. Cf. Pauu, 72 Haw. at 511, 824 P.2d at 837(holding that arguments regarding the sufficient attenuation to dissipate the
taint of a prior illegality must be supported by evidence).
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85 (noting that the opportunity to speak with counsel or family or
friends is a relevant consideration in determining taint).
Contrary to the ICA’s reasoning and the State’s
argument, the fact that Statements 1 and 2 were not referenced
when Statement 3 was elicited is not sufficient to discharge the
State’s burden of demonstrating that Statement 3 was not a benefit
gained by the police from Statements 1 or 2. Although this court
has held that express invocation of the product of an initial
illegality in order to elicit a subsequent incriminating statement
is sufficient to show that the subsequent statement is tainted,
see, e.g., Eli, 126 Hawaii at 524, 273 P.3d at 1210, the fact that
no reference is made to the product of the initial illegality does
not establish that the subsequent statement is not tainted.21 If
non-reference were sufficient to disprove taint, police officers
could violate with impunity a defendant’s constitutional rights to
obtain a confession. For example, after obtaining a confession
during a pre-Miranda custodial interrogation, police officers
could apprise the defendant of his or her constitutional rights
and then refrain from mentioning the previous confession so that
all post-Miranda statements can be freely admitted into evidence.
21
Further, as explained supra, Eli, Joseph, and Poaipuni essentially
were cases in which the State failed to meet its burden of proving that the
prior illegality did not contribute to the subsequent discovery of the
challenged evidence. Those cases do not stand for the proposition that
explicit reliance by the police on the prior illegality is a prerequisite to
finding that the subsequently obtained evidence is a fruit of the poisonous
tree.
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This outcome would render superfluous the fundamental guarantees
of Miranda by the simple artifice of not mentioning the earlier,
illegally obtained statement when eliciting the subsequent
statement.
While it is true that Statement 3 was elicited during
Officer Silva’s advisement of Trinque’s Miranda rights, Miranda
warnings, by themselves, are not enough to attenuate the taint of
a prior illegality. Mariano, 114 Hawaii at 281, 160 P.3d at 1268.
If “Miranda warnings . . . were held to attenuate the taint of an
unconstitutional arrest, regardless of how wanton and purposeful
the Fourth Amendment violation, the effect of the exclusionary
rule would be substantially diluted.” Id. (quoting Brown, 422
U.S. at 602); Joseph, 109 Hawaii at 487, 499, 128 P.3d at 800, 812(subsequent statement, made post-Miranda, was held to be a fruit
of the poisonous tree); Eli, 126 Hawaii at 524, 273 P.3d at 1210(accord). Viewed another way, if Miranda warnings were sufficient
to attenuate the taint of a prior illegality, then the warnings--
which were designed to safeguard certain constitutional rights--
would become a means to legitimize the violation of such rights.
The State further contends that State v. Luton, 83
Hawaii 443, 927 P.2d 844 (1996), is controlling. In that case,
this court held that the defendant’s subsequent confession was not
the fruit of his pre-Miranda statements because the police
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officers did not exploit an illegally obtained statement to elicit
the defendant’s subsequent confession.22 Luton, 83 Hawaii at 455,
927 P.2d at 856. However, Luton is entirely distinguishable from
this case. First, the illegal statement and the post-Miranda
statement in Luton were made one day apart, in contrast to a few
hours in this case. See id. at 447, 927 P.2d at 848. Second, in
Luton, the officers who elicited the post-Miranda confession were
different from the one who obtained the illegal pre-Miranda
statement. Id. Here, on the other hand, the same police officers
involved in illegally obtaining Statement 1 and Statement 2 were
present in the interrogation room when Statement 3 was made, and
Officer Silva was the one who was advising Trinque of his
constitutional rights when Statement 3 was made. Third, and most
significantly, the defendant in Luton met with a public defender,
between the taking of the unlawful statement and the subsequent
statement, and the public defender “advised [Luton] not to say
anything to anyone, including the police.” Id. Nevertheless, the
defendant elected to speak to the police. Id. at 446, 927 P.2d at
847. Luton thus involved intervening circumstances--not present
22
Luton also noted the fact that the police did not use the pre-
Miranda statements to induce a confession and did not reference the pre-Miranda
statements during the post-Miranda interrogation. Luton, 83 Hawaii at 455, 927
P.2d at 856. As discussed supra, the fact that the police in this case did not
mention or reference Statements 1 and 2 when Trinque made Statement 3 and that
Miranda warnings were provided before Statement 3 was made does not suffice to
satisfy the State’s burden of proving that Statement 3 is not a fruit of
Statements 1 and 2.
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in this case--that purged the taint. In light of these facts,
Luton is inapposite.
Accordingly, pursuant to article I, section 10 of the
Hawaii Constitution, the State failed to meet its burden of
demonstrating that Statements 1 and 2 did not taint Statement 3 or
that Statement 3 was so attenuated from Statements 1 and 2 as to
purge the taint for the following reasons: (1) the State failed to
show that Statement 3 would still have been elicited had the
illegality that produced Statements 1 and 2 not occurred; (2) the
fact that neither Statement 1 nor Statement 2 was explicitly
referenced in the course of eliciting Statement 3 does not satisfy
the State’s burden of demonstrating that Statement 3 is untainted;
(3) there were no intervening circumstances to indicate that the
taint of Statements 1 and 2 had dissipated when Statement 3 was
made; (4) the lapse of time and change in location are inadequate
to demonstrate sufficient attenuation between Statements 1 and 2
and Statement 3; and (5) under the circumstances of this case,
advising Trinque of his constitutional rights did not attenuate
Statement 3 from the prior illegality in obtaining Statements 1
and 2. Thus, Statement 3 was the fruit of Statements 1 and 2 and
inadmissible into evidence.
V. CONCLUSION
We hold that Statement 2 is inadmissible into evidence
because it was the product of pre-Miranda custodial interrogation
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and that Statement 3 is the fruit of Statements 1 and 2.
Accordingly, the circuit court’s rulings as to Statements 2 and 3
were not clearly erroneous. For these reasons, we vacate the
ICA’s Judgment on Appeal; affirm the circuit court’s Order
Suppressing Statements and Order Denying Voluntariness of
Statements; and remand this case to the circuit court for further
proceedings.
Jon N. Ikenaga and /s/ Mark E. Recktenwald
Hayley Y.C. Cheng
for petitioner /s/ Sabrina S. McKenna
Justin F. Kollar and /s/ Richard W. Pollack
Tracy Murakami
for respondent /s/ Michael D. Wilson
/s/ Gary W.B. Chang
37