State v. Tronson ( 2020 )


Menu:
  •   NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Electronically Filed
    Intermediate Court of Appeals
    CAAP-XX-XXXXXXX
    30-JUN-2020
    07:49 AM
    NO. CAAP-XX-XXXXXXX
    IN THE INTERMEDIATE COURT OF APPEALS
    OF THE STATE OF HAWAI#I
    STATE OF HAWAI#I, Plaintiff-Appellant, v.
    JERAMY M. TRONSON, Defendant-Appellee
    APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
    (CASE NO. 1DTA-19-00119)
    MEMORANDUM OPINION
    (By: Ginoza, Chief Judge, Leonard and Chan, JJ.)
    Plaintiff-Appellant the State of Hawai#i (State)
    appeals from the Notice of Entry of Judgment and/or Order and
    Plea/Judgment, filed on May 9, 2019 (Judgment), in the District
    Court of the First Circuit, Honolulu Division (District Court).1
    On appeal, the State contends that the District Court erred by
    granting Defendant-Appellee Jeramy M. Tronson's (Tronson's)
    motion to suppress statements, arguing that Tronson was not in
    custody or seized until after a standard field sobriety test
    (SFST) was administered to Tronson and he was arrested for
    1
    The Honorable Summer Kupau-Odo presided.
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
    in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) (Supp.
    2018).2     Thus, the State argues that various of Tronson's
    statements, and Tronson's performance on the SFST, should not
    have been suppressed.         The State also challenges Conclusions of
    Law (COLs) 6, 9, 10, 11, 12, and 13 of the District Court's June
    13, 2019 Findings of Fact and Conclusions of Law and Order
    Granting Defendant's Motion to Suppress Statements (Suppression
    Order).
    I.      BACKGROUND
    On December 24, 2018, at about 3:34 a.m., Honolulu
    Police Department (HPD) Officer Tyler Maalo (Officer Maalo)
    observed Tronson's vehicle nearing the rear of his vehicle, as
    they were traveling east on South King Street, approaching
    Kapiolani Boulevard.3         As Officer Maalo's vehicle was nearing a
    concrete island, he observed Tronson's vehicle pass him on the
    left, and then swerve back into his lane to avoid the concrete
    2
    HRS § 291E-61(a) states, in relevant part:
    § 291E-61 Operating a vehicle under the influence of
    an intoxicant. (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[.]
    3
    The background facts are taken primarily from the District Court's
    Findings of Fact (FOFs), which are set forth in the Suppression Order, and
    which are not challenged on appeal.
    2
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    island, causing Officer Maalo to break hard to avoid a collision.
    Officer Maalo activated his blue lights and Tronson pulled into a
    shopping center parking lot and stopped.
    Upon approaching Tronson, Officer Maalo informed
    Tronson that he pulled Tronson over because Tronson almost hit
    his vehicle.   Tronson apologized for almost hitting the officer's
    car.   As they were speaking, Officer Maalo detected an odor of
    alcoholic beverage emitting from Tronson's breath.      The officer
    observed that Tronson had red and glassy eyes and that Tronson's
    speech was slurred.   Officer Maalo asked Tronson if he was
    willing to participate in an SFST.    Tronson agreed.    As Tronson
    exited his vehicle, he wobbled and dragged his feet.      Tronson was
    not free to leave the scene.
    Prior to administering the SFST, Officer Maalo asked
    Tronson eight preliminary questions, which are known as medical
    rule-out questions:   Do you have any physical defects or speech
    impediments; are you taking any medications; are you under the
    care of a doctor or dentist for anything; are you under the care
    of an eye doctor; are you epileptic or diabetic; do you have an
    artificial or glass eye; are you blind in either eye; and do you
    wear corrective lenses.   Tronson answered no to all of the
    questions.
    The SFST consists of three tests and prior to
    administering them, Officer Maalo gave Tronson instructions,
    asked him if he understood the instructions, and asked him if he
    3
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    had any questions.     Officer Maalo told Tronson that he would be
    judged on how well he followed the instructions.          Tronson was not
    advised of his Miranda rights at any point.4         After the SFST was
    performed, Tronson was arrested for OVUII.
    Tronson filed a motion to suppress statements.          At the
    hearing on the motion to suppress, in addition to the above,
    Officer Maalo testified that when he stopped Tronson, he already
    had all of the elements for a reckless driving charge and that he
    could have arrested Tronson when he first engaged Tronson because
    he had probable cause to arrest Tronson for Reckless Driving.5
    After the hearing concluded, the District Court found (and
    concluded) that Officer Maalo had probable cause to arrest
    Tronson for Reckless Driving when the officer first approached
    Tronson and Tronson was still sitting in his vehicle.           The
    District Court's COLs that are challenged on appeal state as
    follows:
    6.    At the time when Officer Maalo first approached
    Defendant while he was seated in his vehicle, there
    existed probable cause to arrest Defendant for the
    offense of Reckless Driving; and Defendant was not
    free to leave. Accordingly, at this time, Defendant
    was "in custody" for Miranda purposes.
    . . . .
    4
    See Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    5
    HRS § 291-2 (2007) provides:
    § 291-2 Reckless driving of vehicle or riding of
    animals; penalty. Whoever operates any vehicle or rides any
    animal recklessly in disregard of the safety of persons or
    property is guilty of reckless driving of vehicle or
    reckless riding of an animal, as appropriate, and shall be
    fined not more than $1,000 or imprisoned not more than
    thirty days, or both.
    4
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    9.    When Officer Maalo informed Defendant that he was
    being pulled over for speeding and almost causing a
    collision, it was a statement reasonably likely to
    elicit an incriminating response. It was reasonably
    likely that Defendant would respond to the statement
    by apologizing or explaining his actions, thereby
    incriminating himself. As such, Officer Maalo's
    statement to Defendant about why Defendant was pulled
    over qualifies as interrogation for Miranda purposes.
    Accordingly, Defendant's response is suppressed.
    10.   Pursuant to State v. Ferm, 
    94 Haw. 17
     (2000), a
    subject's refusal to participate in the SFST can be
    used at trial to show consciousness of guilt. As
    such, inviting a subject to participate in the SFST is
    reasonably likely to elicit an incriminating response.
    Therefore, Defendant's response to being asked if he'd
    like to participate in the SFST is suppressed.
    11.   In State v. Vliet, 
    91 Haw. 288
     (1999), the supreme
    court ruled that consumption of alcohol only needs to
    be a contributing factor in a defendant's impairment.
    Further, State v. Eli, 
    126 Haw. 510
     (2012), held that
    an incriminating response refers to both inculpatory
    and exculpatory responses. In an OVUII investigation,
    where alcohol need only be a contributing factor in a
    defendant's impairment, the MRO questions are
    reasonably likely to elicit an incriminating response.
    As such, Defendant's responses to all MRO questions
    are suppressed.
    12.   Defendant was told by Officer Maalo, "You will be
    judged on how well you follow the instructions . . ."
    Officer Maalo testified that how well a subject
    follows his instructions during the SFST may provide
    insight into the subject's mental faculties. Further,
    if a subject states that he understands the
    instructions and has no questions, then any deviation
    from the instructions while performing the tests is
    likely to be attributed to impairment by alcohol. As
    such, providing the instructions to Defendant and
    asking him if he understands the instructions is
    reasonably likely to elicit an incriminating response.
    Therefore, Defendant's response to whether he
    understands the instructions is suppressed.
    13.   "The fruit of the poisonous tree [doctrine] prohibits
    the use of evidence at trial which comes to light as a
    result of the exploitation of a previous illegal act
    of the police." State v. Fukusaku, 
    85 Hawaii 462
    , 475
    (1997). Officer Maalo testified that he would not
    administer the SFST without (1) receiving consent from
    the subject; (2) going thru [sic] the MRO; and (3)
    assuring that the subject understands the instructions
    to each test and has no questions. As such, if any of
    these questions or sets of questions are suppressed
    then the results of the SFST become fruit of the
    poisonous tree. Accordingly, the results of the SFST
    in its entirety are suppressed.
    5
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    On May 9, 2019, the District Court entered the
    Judgment, which granted Tronson's motion to suppress statements.
    II.   POINT OF ERROR
    On appeal, the State raises a single point of error,
    contending that the District Court erred in COLs 6, and 9 to 13,
    and in ordering that Tronson's statements are suppressed, because
    Tronson was not in custody or seized until after he took the SFST
    and was arrested for OVUII.
    III. APPLICABLE STANDARDS OF REVIEW
    The proponent of the motion to suppress has the burden
    of establishing, by a preponderance of the evidence, that
    the statements or items sought to be excluded were
    unlawfully secured and that his or her right to be free from
    unreasonable searches or seizures was violated under the
    fourth amendment to the United States Constitution and
    article I, section 7 of the Hawai#i Constitution.
    State v. Estabillio, 121 Hawai#i 261, 269, 
    218 P.3d 749
    , 757
    (2009) (citations omitted).
    A ruling on a motion to suppress is reviewed de novo,
    and the appellate court must look at the entire record on appeal
    to determine whether the ruling was right or wrong.           State v.
    Joseph, 109 Hawai#i 482, 493, 
    128 P.3d 795
    , 806 (2006).           The
    District Court's COLs are also reviewed de novo.           See 
    id.
    IV.   DISCUSSION
    The State contends that the District Court erred in
    suppressing Tronson's responses to the medical rule-out
    questions, Tronson's responses to the SFST instructions,
    Tronson's statement in response to why he was stopped, Tronson's
    performance on the SFST, and any statements Tronson made after
    6
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    the SFST6 because Miranda warnings had not been read to Tronson
    immediately upon his being stopped.         The State submits that
    Miranda warnings were not required because Tronson was not in
    custody or interrogated until after the SFST was administered and
    he was arrested for OVUII.
    We recently addressed these issues in State v.
    Sagapolutele-Silva, CAAP-XX-XXXXXXX, 
    2020 WL 1699907
     (Haw. App.
    Apr. 8, 2020), wherein, under similar circumstances, we
    considered the application of the well-established constitutional
    principle that the prosecution may not use statements, whether
    exculpatory or inculpatory, stemming from the custodial
    interrogation of a defendant unless the defendant has first been
    advised of his or her Miranda rights.
    In Sagapolutele-Silva, we examined the Hawai#i Supreme
    Court's decisions in State v. Wyatt, 
    67 Haw. 293
    , 
    687 P.2d 544
    (1984), and State v. Kaleohano, 99 Hawai#i 370, 
    56 P.3d 138
    (2002), before turning to the question of whether Sagapolutele-
    Silva's suppressed statements stemmed from custodial
    interrogation.     Sagapolutele-Silva, 
    2020 WL 1699907
     at *4-5.           In
    Wyatt, where the defendant was briefly detained and therefore
    seized, but not in custody or coercively questioned, the supreme
    court held that Miranda warnings were not required before she was
    6
    None of the FOFs and COLs identify any statements made after the
    SFST. On appeal, the State fails to identify any such statements. To the
    extent Tronson made any statements to Officer Maalo after the SFST, the
    State's argument that the District Court erred in suppressing such statements
    is waived.
    7
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    asked if she had been drinking.       Wyatt, 67 Haw. at 297-301, 
    687 P.2d at 548-50
    .   The supreme court further concluded that the
    SFST that the defendant performed was not constitutionally infirm
    because the test sought only an exhibition of her physical
    characteristics of coordination, rather than communications or
    testimony, even though its purpose was to gather evidence of
    criminal conduct.   Id. at 302-03, 
    687 P.2d at 551
    .     In Kaleohano,
    the supreme court noted that if probable cause to arrest or
    sustained and coercive questioning were present, then questions
    posed by the police could amount to custodial interrogation.
    Kaleohano, 99 Hawai#i at 377, 
    56 P.3d at 145
    .      The court
    concluded that because there was no probable cause to arrest the
    defendant, and in light of the fact that the officer did not
    subject the defendant to sustained and coercive questioning, the
    officer was not required to give the defendant a Miranda warning
    prior to asking her if she had been drinking.      Id. at 377-78, 
    56 P.3d at 145-46
    .
    Here, we must examine whether, under the totality of
    the circumstances, Tronson's suppressed statements stemmed from
    custodial interrogation.   Tronson was not in custody merely
    because he was seized in connection with a traffic stop.       State
    v. Ah Loo, 94 Hawai#i 207, 211, 
    10 P.3d 728
    , 732 (2000).       To
    determine whether an interrogation is custodial, the totality of
    the circumstances analysis focuses on "the place and time of the
    interrogation, the length of the interrogation, the nature of the
    8
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    questions asked, the conduct of the police, and [any] other
    relevant circumstances[.]"    Id. at 210, 
    10 P.3d at
    731 (citing
    State v. Melemai, 
    64 Haw. 479
    , 481, 
    643 P.2d 541
    , 544 (1982));
    see also State v. Kazanas, 138 Hawai#i 23, 35, 
    375 P.3d 1261
    ,
    1273 (2016) (reiterating same).       In this regard, the supreme
    court has acknowledged that "no precise line can be drawn"
    between "custodial interrogation," on the one hand, and
    "permissible general on-the-scene questioning," on the other.          Ah
    Loo, 94 Hawai#i at 210, 
    10 P.3d at
    731 (citing State v.
    Patterson, 
    59 Haw. 357
    , 362, 
    581 P.2d 752
    , 755-56 (1978))
    (brackets omitted).   Custodial interrogation is comprised of two
    components, "interrogation" and "custody."       Kazanas, 138 Hawai#i
    at 35, 375 P.3d at 1273.   The totality of the circumstances test
    applies to custodial interrogation, "in the sense that the
    defendant is deprived of his or her freedom of action in any
    significant way."   Id.   In contrast, "the touchstone in analyzing
    whether 'interrogation' has taken place is whether the police
    officer 'should have known that his or her words and actions were
    reasonably likely to elicit an incriminating response from the
    defendant.'"   Id. at 38, 375 P.3d at 1276 (brackets and citation
    omitted).
    We first consider whether the District Court erred in
    COL 6 by finding that there was probable cause to arrest Tronson
    for Reckless Driving when he was initially stopped.       In State v.
    9
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Agard, 113 Hawai#i 321, 322, 
    151 P.3d 802
    , 803 (2007), the
    supreme court explained:
    We hold that (1) the reckless state of mind definition under
    HRS § 702–206(3) (1993) applies to the reckless driving
    statute, HRS § 291–2; (2) in determining whether an
    identified risk is substantial and unjustifiable under HRS §
    702–206(3), the nature and degree of the risk disregarded by
    the actor, the nature and purpose of his conduct, and the
    circumstances known to him in acting must be weighed; (3) in
    this case a reckless state of mind can be inferred from the
    circumstances to conclude that there was conscious awareness
    of a substantial and unjustifiable risk to the safety of
    others and property on the part of Respondent; and (4)
    deference must be given to the trier of fact with respect to
    questions of credibility and weight of the evidence.
    In other words, it must be shown that the "Defendant
    knew whether 'the safety of persons or property' was in peril."
    State v. Quinn, No. 30111, 
    2010 WL 2675349
    , at *1 (Haw. App. July
    7, 2010) (SDO) (quoting State v. Moleta, 112 Hawai#i 233, 240,
    
    145 P.3d 776
    , 783 (App. 2006)).
    As set forth above, at the hearing on Tronson's motion
    to suppress statements, Officer Maalo testified that Tronson
    passed the officer's car on the left and then abruptly swerved
    back into the officer's lane, causing the officer to slam on his
    brakes in order to avoid a collision.       Officer Maalo caught up
    with Tronson's vehicle, activated his blue lights and siren, and
    Tronson's vehicle came to a stop in a shopping center.           We
    conclude that the District Court did not err in concluding that,
    at this initial point of the stop, a person of reasonable caution
    would have been warranted in believing that Tronson had a
    conscious awareness that his driving had posed a substantial and
    unjustifiable risk to the safety of others and property, to wit,
    10
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Officer Maalo and/or his vehicle.      See HRS § 291-2; Agard, 113
    Hawai#i at 322, 
    151 P.3d at 803
    ; State v. Maganis, 109 Hawai#i 84,
    86, 
    123 P.3d 679
    , 681 (2005) ("Probable cause exists when the
    facts and circumstances within one's knowledge and of which one
    has reasonably trustworthy information are sufficient in
    themselves to warrant a person of reasonable caution to believe
    that an offense has been committed.      This requires more than a
    mere suspicion but less than a certainty."      (Emphasis and
    citation omitted)).   Accordingly, the District Court did not err
    in concluding that Officer Maalo had probable cause to arrest
    Tronson for Reckless Driving at this point.
    That said, Officer Maalo was not required to provide
    Tronson with Miranda warnings prior to informing Tronson of why
    he was stopped.   As we recently held in Sagapolutele-Silva,
    "[g]enerally, informing a defendant of the reason for being
    stopped or arrested does not constitute custodial interrogation
    likely to elicit an incriminating response."      Sagapolutele-Silva,
    
    2020 WL 1699907
     at *9 (citations omitted); see Rhode Island v.
    Innis, 
    446 U.S. 291
    , 301 (1980) (holding that the term
    "interrogation" does not include "words or actions on the part of
    the police [that are] normally attendant to arrest and custody");
    United States v. Moreno-Flores, 
    33 F.3d 1164
    , 1169 (9th Cir.
    1994) ("[W]hen an officer informs a [suspect] of [the]
    circumstances" of his arrest or explains evidence against him,
    "this information may be considered normally attendant to arrest
    11
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    and custody." (quoting United States v. Crisco, 
    725 F.2d 1228
    ,
    1232 (9th Cir. 1984))).    Officer Maalo informing Tronson of why
    he was stopped did not amount to an "interrogation" and Miranda
    warnings were not required.     The District Court erred in COL 9 in
    concluding that there was an interrogation at this point and in
    suppressing the statement Tronson made in response to being
    informed of the reason that he was stopped.
    As we further noted in Sagapolutele-Silva, there is no
    requirement for the police to arrest a suspect once probable
    cause is established.    Sagapolutele-Silva, 
    2020 WL 1699907
     at *6
    (citation omitted).   The police need not halt an investigation
    the moment they have the minimum evidence to establish probable
    cause because it may fall short of evidence necessary to support
    a criminal conviction.    
    Id.
       Nevertheless, "[a]n individual in
    police custody may not be subjected to interrogation without
    first being advised of his Miranda rights."     
    Id.
     (citation and
    internal quotation marks omitted).
    Under the totality of the circumstances in this case,
    Tronson was in custody for Reckless Driving.     Officer Maalo had
    probable cause to arrest him for Reckless Driving when he stopped
    him.   In addition, as discussed below, upon his initial
    conversation with Tronson, Officer Maalo had a reasonable
    suspicion that he was driving while intoxicated.      Officer Maalo
    testified that Tronson was not free to leave from the time he was
    stopped.   Under the totality of the circumstances, the District
    12
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    Court did not err in COL 6 in concluding that Tronson was in
    custody and that Tronson should have been given Miranda warnings
    prior to any interrogation.
    Nevertheless, the investigation for OVUII in this case
    constituted a separate and distinct investigation, albeit related
    to the initial traffic stop, and it required an independent
    reasonable suspicion.     See generally Estabillio, 121 Hawai#i at
    273, 
    218 P.3d at 761
    .     There was reasonable suspicion that
    Tronson was operating a vehicle while intoxicated based upon his
    driving; his red, watery, and glassy eyes; and the smell of
    alcohol on his breath.     State v. Barrickman, 95 Hawai#i 270, 274-
    77, 
    21 P.3d 475
    , 479-82 (App. 2001) (there was reasonable
    suspicion to investigate driving while intoxicated based on
    defendant's glassy eyes and smell of alcohol on breath).
    However, red and glassy eyes alone and imperfect driving are
    insufficient to establish probable cause to arrest a person for
    OVUII.   Kaleohano, 99 Hawai#i at 377-78, 
    56 P.3d at 145-46
    .
    As noted by the supreme court in Kernan v. Tanaka, 
    75 Haw. 1
    , 38 n.23, 
    856 P.2d 1207
    , 1226 n.23 (1993):
    Usually, the police administer a field sobriety test
    consisting of specific procedures when a driver has been
    stopped as a DUI suspect. If a driver does not exit
    voluntarily, the police must order him or her out of the
    vehicle even though probable cause to arrest may not have
    been established. Should the suspect fail the test, an
    arrest will ensue. Thus, it is the test failure that
    provides the police with probable cause to arrest. 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.
    13
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    "Field sobriety tests are designed and administered to
    avoid the shortcomings of casual observation."     Wyatt, 67 Haw. at
    302, 
    687 P.2d at 551
     (brackets omitted).     Here, Officer Maalo did
    not initially have probable cause to arrest Tronson for OVUII
    simply based upon noticing that he had red, glassy eyes, and an
    odor of alcohol on his breath.    And, the right against self-
    incrimination is not necessarily implicated whenever a person
    suspected of criminal activity is compelled in some way to
    cooperate in developing evidence which may be used against him,
    such as when a driver is asked to participate in a SFST.      
    Id.
          As
    discussed in Sagapolutele-Silva, the Wyatt court held that since
    performance on an SFST was neither communication nor testimony,
    the trial court did not err by refusing to suppress the officer's
    SFST observations.   Sagapolutele-Silva, 
    2020 WL 1699907
     at *7
    (citing Wyatt, 67 Haw. at 301-03, 
    687 P.2d at 550-51
    ).
    In addition, in Pennsylvania v. Muniz, 
    496 U.S. 582
    ,
    603-04 (1990), the United States Supreme Court rejected the
    contention that Miranda warnings are required prior to an inquiry
    as to whether a defendant understood SFST instructions, because
    the "focused inquiries were necessarily 'attendant to' the police
    procedure held by the court to be legitimate."     Accordingly,
    asking Tronson whether he understood the instructions to the SFST
    did not implicate his right to self-incrimination.      Thus, we
    conclude that the District Court erred in COLs 10, 12, and 13 by
    suppressing Tronson's response to whether he would participate in
    14
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    the SFST, whether he understood the instructions to the SFST, and
    the officer's observations of his performance on the SFST.
    However, due to Tronson being in custody for Reckless
    Driving, the medical rule-out questions, which were asked in
    relation to the OVUII investigation here, constituted
    interrogation warranting Miranda warnings.     As we noted in
    Sagapolutele-Silva, other courts have observed that the failure
    to provide a Miranda warning when an individual is in custody for
    one crime will taint an interrogation even if the interrogation
    relates to a different crime.    See Mathis v. United States, 
    391 U.S. 1
    , 2, 4-5 (1968) (noting that there is "nothing in the
    Miranda opinion which calls for a curtailment of the warnings to
    be given persons under interrogation by officers based on the
    reason why the person is in custody"); see also, e.g., People v.
    Bejasa, 
    140 Cal. Rptr. 3d 80
    , 91 (Ct. App. 2012); State v.
    Lawler, No. L-96-223, 
    1997 WL 77511
    , *1-2 (Ohio Ct. App. Feb. 21,
    1997); State v. Lien, No. 32443-5-III, 
    2016 WL 4267689
     (Wash. Ct.
    App. Aug. 11, 2016).   Here, Officer Maalo testified that Tronson
    was not free to leave during his encounter with Tronson in
    connection with his investigation into OVUII, and there was
    nothing to indicate that Tronson was free to go about his
    business before being questioned about OVUII.     Tronson was in
    custody for Reckless Driving when the medical rule-out questions
    were posed.
    15
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    "[T]he touchstone in analyzing whether interrogation
    has taken place is whether the police officer should have known
    that his [or her] words and actions were reasonably likely to
    elicit an incriminating response from the defendant."          Kazanas,
    138 Hawai#i at 38, 375 P.3d at 1276 (citation and internal
    quotation marks omitted).     Relying upon Innis, 
    446 U.S. 291
    (1980), Kazanas reiterated that "interrogation consists of any
    express question - or, absent an express question, any words or
    conduct - that the officer knows or reasonably should know is
    likely to elicit an incriminating response."        
    Id.
     (citation and
    internal quotation marks omitted).      An incriminating response is
    any response, either inculpatory or exculpatory.         Innis, 
    446 U.S. at
    301 n.5.    In contrast, a physical inability to articulate
    words in a clear manner due to lack of muscular coordination of
    the tongue and mouth is not testimonial evidence for purposes of
    self-incrimination.    Muniz, 
    496 U.S. at 590-91
    .
    In this case, the District Court's FOF 10 identified
    the medical rule-out questions posed to Tronson as follows:
    i.    Do you have any physical defects or speech
    impediments?
    ii.   Are you taking any medications?
    iii. Are you under the care of a doctor or dentist
    for anything?
    iv.   Are you under the care of an eye doctor?
    v.    Do you have an artificial or glass eye?
    vi.   Are you epileptic or diabetic?
    vii. Are you blind in either eye?
    viii. Do you wear corrective lenses?
    Based on, inter alia, our analysis in Sagapolutele-
    Silva, we conclude that the medical rule-out questions posed to
    Tronson were reasonably likely to elicit an incriminating
    16
    NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
    response and, therefore, constituted interrogation.         See
    Sagapolutele-Silva, 
    2020 WL 1699907
     at *7-8.
    Tronson was in custody.      He had not been given Miranda
    warnings.     The medical rule-out questions constituted
    interrogation.       Thus, we conclude that his responses to those
    questions should have been suppressed and the District Court did
    not err in so concluding in COL 11.
    V.      CONCLUSION
    For these reasons, the May 9, 2019 Judgment is affirmed
    in part and vacated in part.       This case is remanded to the
    District Court for further proceedings.
    DATED: Honolulu, Hawai#i, June 30, 2020.
    On the briefs:
    /s/ Lisa M. Ginoza
    Brian R. Vincent,                         Chief Judge
    Deputy Prosecuting Attorney,
    City and County of Honolulu,              /s/ Katherine G. Leonard
    for Plaintiff-Appellant.                  Associate Judge
    Alen M. Kaneshiro,                        /s/ Derrick H.M. Chan
    for Defendant-Appellee.                   Associate Judge
    17