State v. Skapinok.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
03-JUN-2022
10:22 AM
Dkt. 19 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Petitioner and Respondent/Plaintiff-Appellant,
vs.
LEAH SKAPINOK,
Respondent and Petitioner/Defendant-Appellee.
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-19-01048)
JUNE 3, 2022
RECKTENWALD, C.J., NAKAYAMA, AND McKENNA, JJ., AND
CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY,
WITH WILSON, J., DISSENTING
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
This case requires us to examine the practice of
asking so-called medical rule-out questions in the course of an
Operating a Vehicle Under the Influence of an Intoxicant (OVUII)
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investigation. An officer administering a standardized field
sobriety test (SFST) to an OVUII suspect asks the medical rule-
out questions, which “rule out” other reasons, besides
intoxication, for poor performance on the SFST. Leah Skapinok
was asked seven medical rule-out questions while in police
custody, before she was advised of her Miranda 1 rights. If the
questions were interrogation, article I, section 10 of the
Hawai‘i Constitution requires that her answers to them be
suppressed.
We hold that these questions are interrogation under
the Hawai‘i Constitution. There is no per se exception under the
Hawai‘i Constitution for questions “necessarily ‘attendant to’
[a] legitimate police procedure.” Pennsylvania v. Muniz, 496
U.S. 582, 605 (1990) (citation omitted). To avoid suppression
for want of Miranda warnings, such questions must pass muster
under our well-established interrogation test: “whether the
officer should have known that his words and actions were
reasonably likely to elicit an incriminating response from the
defendant.” State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592,
595–96 (1983) (citing Rhode Island v. Innis, 446 U.S. 291, 301
(1980)). The medical rule-out questions asked to Skapinok in
this case were “reasonably likely to elicit an incriminating
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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response” because her answers to them aided in interpreting the
SFSTs’ results – that is, her answers supported the inference
that she was intoxicated because no medical cause could explain
any aberrations in her test performance. Skapinok’s answers to
the medical rule-out questions must be suppressed.
But we cannot say the same for any of the other
challenged evidence. Neither asking whether Skapinok would
participate in the SFST nor asking whether she understood the
instructions to the test would be reasonably likely to elicit an
incriminating response. And the evidence gathered thereafter,
including her performance on the SFST, was not an exploitation
of, or benefit derived from, the medical rule-out questions;
accordingly, subsequent evidence was not the fruit of the
poisonous tree.
II. BACKGROUND
A. Skapinok’s Arrest
On August 18, 2019, around 11:00 p.m., Honolulu Police
Department (HPD) Officer William Meredith observed a white
Toyota Tacoma speeding down King Street in Honolulu. 2 He
followed the vehicle onto Ward Avenue, where he observed it
“weaving through traffic”; the truck then turned right onto the
H-1 freeway onramp, merged onto the freeway, “cross[ed] over a
2 This account of Skapinok’s arrest comes from the District Court
of the First Circuit’s findings of fact in the order granting Skapinok’s
motion to suppress, which are not contested on appeal.
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solid white line,” and “crossed three lanes of the freeway to
the left without a turn signal.” After following the truck on
the freeway, which appeared to be speeding, Officer Meredith
pulled the vehicle over. “Based on his observations, Officer
Meredith characterized Defendant’s driving as Reckless Driving,”
which is a petty misdemeanor under Hawai‘i Revised Statutes (HRS)
§ 291-2 (2007). 3
When Officer Meredith approached the driver’s side and
spoke with Skapinok, he “noticed a strong odor of alcohol coming
from Defendant and observed Defendant’s eyes to be red, glassy
and bloodshot.” Officer Meredith asked if she would participate
in an SFST; she “became argumentative” at first, but ultimately
consented after Officer Meredith informed her that “if she did
not participate in an SFST, that he would arrest her.”
Officer Meredith waited for another officer, Corporal
Ernest Chang, to arrive; 4 when Corporal Chang was informed by
Officer Meredith, outside of Skapinok’s presence, of the reason
for the traffic stop, he agreed that Skapinok could be arrested
for reckless driving. Corporal Chang then “approached
Defendant’s vehicle and began conversing with her. Corporal
3 HRS § 291-2 provides: “Whoever operates any vehicle . . .
recklessly in disregard of the safety of persons or property is guilty of
reckless driving of [a] vehicle . . . and shall be fined not more than $1,000
or imprisoned not more than thirty days, or both.”
4 The record does not indicate how long Skapinok and Officer
Meredith waited for Corporal Chang, but testimony indicated that the traffic
stop took about thirty minutes in total.
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Chang asked Defendant if she would be willing to participate in
an SFST.” Skapinok asked whether she would be arrested if she
did not participate, and “Corporal Chang told Defendant that she
could already be arrested for reckless driving.” Skapinok again
consented to the SFST.
Corporal Chang asked a series of questions known as
the medical rule-out questions prior to administering the SFST:
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?
iv. Do you have an artificial or glass eye?
v. Are you epileptic or diabetic?
vi. Are you blind in either eye?
According to Corporal Chang’s testimony, the
medical rule-out questions “must be asked to administer the
SFST safely” and when answered in the negative, it “tells
the officer that the results he sees on the SFST are likely
caused by an intoxicant.” Corporal Chang “never
administers an SFST without first asking the [medical rule-
out] questions.”
Skapinok responded “no” to all questions except
that she told Corporal Chang that she was taking the
medication Wellbutrin and that she was seeing a doctor for
depression. Corporal Chang knew “that ingesting Wellbutrin
in conjunction with alcohol can cause side effects that are
similar to that of intoxication.”
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After performing the SFST, Skapinok was arrested
for OVUII and reckless driving. Neither Corporal Chang nor
Officer Meredith administered Miranda warnings prior to her
arrest.
B. District Court Proceedings
Skapinok was charged in the District Court of the
First Circuit (district court) 5 with OVUII in violation of HRS
§§ 291E-61(a)(1) and/or (a)(3) (2018). 6
1. Motion to Suppress
Skapinok moved to suppress “[a]ny statements made by
Defendant to [HPD] Officers or other governmental personnel” and
“[a]ny and all evidence seized or information gained by the
[HPD] after Defendant was placed under arrest, [and] was not
read [their] Miranda rights.” The motion argued that Skapinok
was both in custody and subjected to interrogation during the
traffic stop. Skapinok contended she was subjected to
interrogation when the officer asked if she would like to
5 The Honorable Summer M. M. Kupau-Odo presided.
6 HRS § 291E-61 provides in relevant part:
(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[.]
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participate in the SFST; during the communications that occurred
during the test itself (e.g., counting aloud during one
component of the SFST); when she was asked the medical rule-out
questions; and when asked if she understood the field sobriety
test instructions or had any questions about them.
Officer Meredith and Corporal Chang testified at the
hearing on the Motion to Suppress. Officer Meredith first
testified that after pulling Skapinok over, he “observed that
the defendant had red, glassy, bloodshot eyes and a strong odor
of alcoholic beverage as [he] was talking to her.” Skapinok
stipulated to the admission of edited body-camera footage. In
the footage, Officer Meredith explained to Skapinok why she was
pulled over – for speeding and swerving – and informed her that
he could “smell a lot of alcohol coming from [her].” Officer
Meredith asked Skapinok if she would like to do a field sobriety
test, to which she responded, “No. I’m – I just got off work.
I’m in my work uniform,” and added, “I swear I haven’t been
drinking.”
Officer Meredith then told Skapinok that participating
in the test was voluntary, but that if she did not, she would be
arrested under suspicion of driving under the influence. A
lengthy exchange followed in which Skapinok repeated several
times that she had not had any alcohol. In its findings of
fact, the district court characterized Skapinok as
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“argumentative with Officer Meredith” during this exchange.
Officer Meredith replied that he was not asking her if she was
drinking, he was only conveying his observations and asking if
she would participate in the test.
On cross-examination, Officer Meredith testified that
he would characterize Skapinok’s driving as reckless and that he
had probable cause to arrest her for either OVUII or reckless
driving even without the SFST. Additionally, he testified that
“very early on in [the] conversation she was not free to leave
the scene” and that he told Skapinok three times that if she
declined to do the SFST, she would be arrested. Thirty minutes
passed from the time that he stopped the vehicle to her arrest.
Corporal Chang testified thereafter. 7 Skapinok
stipulated to the admission of Corporal Chang’s body-camera
footage, which showed, as relevant here, the following
interaction:
[CORPORAL] CHANG: (Inaudible.) Hello, ma’am. So I’m
Officer Chang. I’m just here to offer you the standardized
field sobriety test. Do you want to take the test, ma’am?
THE DEFENDANT: (Inaudible.)
[CORPORAL] CHANG: No, it’s up to you.
THE DEFENDANT: (Inaudible.)
[CORPORAL] CHANG: Okay. Possibly. Yeah. Possibly.
I mean just to be honest with you, there’s already enough
to arrest you just for the reckless driving alone.
7 Skapinok stipulated for purposes of the hearing that Chang was
qualified to administer and evaluate the SFST.
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THE DEFENDANT: Just because I was speeding?
[CORPORAL] CHANG: Yeah. ‘Cause you -- well, you
committed multiple traffic violations.
THE DEFENDANT: How?
[CORPORAL] CHANG: So anyway I’m not here to -- I’m
not here to talk about that in detail because I didn’t stop
you. I’m just letting you know the officer apprised me of
why he stopped you, and there’s multiple traffic
violations. All -- I mean it’s not only the speeding.
There’s, you know, cutting off cars. And, like I said, I’m
just letting you know it’s reckless driving. You may be
arrested for that as well. Just letting you know. So if
you want to try the field test, you gotta get out of your
car, please.
Corporal Chang then testified that, consistent with
his training, he asked Skapinok the seven medical rule-out
questions before administering the SFST. Corporal Chang
testified that he asked the questions because “they are things
that may affect [a suspect’s] ability to perform the test,” and
it is “necessary to ask these questions to perform the test
safely.” He further testified that based on his training and
experience, he was not permitted to administer the SFST without
first asking the medical rule-out questions, nor had he ever
done so. In response, Skapinok said “no to everything” except
that she was taking medication – Wellbutrin, which she said was
for depression – and was under the care of a doctor for
depression. He then gave the instructions for each component of
the SFST in turn, asking if Skapinok understood after each set
of directions.
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On cross-examination, Corporal Chang confirmed that he
implied to Skapinok she would be arrested for reckless driving
if she declined the test. He further testified that he needed
consent to do the SFST. In addition, Corporal Chang testified
that the medical rule-out questions help “determine if there’s
going to be any type of medical or physical condition that might
affect the results of the [SFST.]” If a person answers all
“nos” to the medical rule-out questions, “that tells [Corporal
Chang] that a person is medically and physically fit to perform
the test,” and “focuses [his] attention away from medical and
physical problems and it focuses it more on a cause by an
intoxicant.” If a person indicates that they understand the
instructions, but fails to follow them, that might indicate
“that they are possibly mentally impaired by an intoxicant.” If
a person responds that they don’t understand the instructions to
the SFST, that, too, might “possibly” indicate that person is
“mentally confused or impaired by an intoxicant.”
Corporal Chang also testified on cross-examination
that he knew Wellbutrin “can have an effect” when it
“interact[s] with alcohol . . . lead[ing] to certain symptoms
that may look like impairment.” On redirect, he testified that
taking Wellbutrin is not a crime.
Skapinok argued that she was in custody during the
traffic stop and that the question of whether she would consent
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to the SFST was interrogation because if she refused, it could
be used against her to support consciousness of guilt per State
v. Ferm, 94 Hawaiʻi 17, 7 P.3d 193 (App. 2000). Likewise, she
argued the medical rule-out questions were “reasonably likely to
elicit incriminating responses” and in fact did elicit an
incriminating response, because Wellbutrin “can interact with
alcohol to show symptoms of . . . impair[ment]”; Skapinok argued
that alcohol need only be a contributing cause of impairment
under the OVUII statute pursuant to State v. Vliet, 91 Hawaiʻi
288, 983 P.2d 189 (1999). Asking whether she understood the
questions would likewise be reasonably likely to elicit an
incriminating response because a negative answer would indicate
impairment, and a positive answer would also indicate impairment
if she failed to follow the instructions. Skapinok emphasized
that Corporal Chang “is not even permitted to administer the
[SFST] without asking” the medical rule-out questions and
whether the suspect understands the instructions; she argued
that the results of the SFST must therefore be suppressed as
fruit of the poisonous tree as well.
The State conceded that there was probable cause to
arrest for reckless driving but argued that “no interrogation
occurred and so therefore there was no custodial interrogation
although the defendant was in custody.” The State contended
that none of the medical rule-out questions “are explicitly
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exculpatory or inculpatory”; even Skapinok’s answer regarding
Wellbutrin was not incriminating because “taking Wellbutrin by
itself is not a crime.” The State pointed to Muniz, which it
argued held “questions . . . which were just part of the [SFST]
were fine” but may become interrogation “when the officers
exceeded that scope.” The State argued that Officer Meredith’s
repeated statements in the body-camera footage that he did not
ask about her drinking suggested that the officers were “taking
special precautions not to interrogate the defendant. They’re
just administering the standardized field sobriety test.”
2. District Court’s FOFs and COLs
The court ruled in favor of Skapinok, finding that
there was custodial interrogation. The district court’s written
findings of fact (FOFs) and conclusions of law (COLs) state in
relevant part as follows:
FINDINGS OF FACT
. . . .
12. Defendant was the focus of an OVUII investigation.
13. Corporal Chang cannot conduct the SFST unless a
person consents to the test.
. . . .
17. Prior to administering the SFST, Corporal Chang asked
Defendant the following questions:
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?
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vi. Are you epileptic or diabetic?
vii. Are you blind in either eye?
. . . .
21. The [medical rule-out] questions are to “rule-out”
medical causes that might cause a person to perform
poorly on the SFST. If a person answers “no” to all
the [medical rule-out] questions, it tells the
officer that the results he sees on the SFST are
likely caused by an intoxicant[,] [a]s opposed to
medical or physical conditions.
22. The [medical rule-out] questions must be asked to
administer the SFST safely.
23. Based on his training, Corporal Chang never
administers an SFST without first asking the [medical
rule-out] questions. Corporal Chang testified that
he is not permitted to administer an SFST without
first asking the [medical rule-out] questions.[ 8]
. . . .
27. Defendant was arrested for OVUII and Reckless
Driving.
28. Defendant was never advised of her Miranda rights or
her right to remain silent. At no point in time did
either officer tell Defendant anything she said could
be used against her.
CONCLUSIONS OF LAW
. . . .
9. The Hawai[ʻ]i Supreme Court has defined
“interrogation” as “express questioning or its
functional equivalent.” The Court has also stated
that “to the extent that, under article I, section
10, the ultimate question regarding “interrogation”
is whether the questioning officer knew or reasonably
should have known that [their] question was likely to
elicit an incriminating response” and 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.” State
8 We note that this sentence is a recitation of the testimony of a
witness, which is not a finding of fact. See Dep’t of Env’t Servs., City &
Cnty. of Honolulu v. Land Use Comm’n, 127 Hawai‘i 5, 15 n.12, 275 P.3d 809,
819 n.12 (2012) (“We encourage courts and factfinding tribunals to properly
state their findings . . . and not merely recite testimony.”).
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v. Kazanas, 138 Haw[aiʻi] 23, [38, 375 P.3d 1261,
1276] (2016).
10. Asking Defendant if she was willing to participate in
the SFST constituted custodial interrogation because
she was not free to leave, she was the focus of an
OVUII investigation and officers had probable cause
to arrest her. Asking a person if they would be
willing to participate in a SFST is reasonably likely
to elicit an incriminating response. For example,
refusing to participate in the SFST can be used at
trial to show consciousness of guilt pursuant to
State v. Ferm, 94 Haw[aiʻi] 17, 7 P.3d 193 (2000).
. . . .
12. The results of the SFST and the responses to the
[medical rule-out] questions will likely be used
against Defendant at trial.
13. The [medical rule-out] questions in this case
constituted custodial interrogation and were
reasonably likely to elicit incriminating responses.
In this particular case, the [medical rule-out]
questions did elicit incriminating responses.
Defendant stated that she was taking the medication
Wellbutrin. Alcohol ingested in conjunction with
medication which causes intoxication is a basis for
OVUII . . . as alcohol only has to be a contributing
factor in impairment.
. . . .
15. Corporal Chang’s questioning during the SFST as to
whether Defendant understood the instructions was
reasonabl[y] likely to elicit an incriminating
response. If Defendant answered “no,” it would be
commentary on her mental faculties and ability to
understand the instructions. If Defendant answered
“yes,” and did not perform the test as instructed,
her “yes” response could be used against her at trial
to show her mental faculties were impaired.
16. Defendant’s consent to the SFST is suppressed and all
evidence obtained after the consent i[s] fruit of the
poisonous tree.
17. The [medical rule-out] questions are suppressed and
all evidence obtained by HPD after the [medical rule-
out] questions are suppressed as fruit of the
poisonous tree.
18. Defendant’s answer that she understood the
instructions during the SFST is suppressed and the
SFST is suppressed as fruit of the poisonous tree.
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19. Defendant’s statements while she was still in the
vehicle in response to Officer Meredith’s statement
that he was not asking whether she was drinking is
suppressed.
C. Intermediate Court of Appeals (ICA) Proceedings
The State appealed, and the ICA affirmed in part and
vacated in part the district court in a memorandum opinion,
relying primarily on the ICA’s published opinion in State v.
Sagapolutele-Silva, 147 Hawai‘i 92, 464 P.3d 880 (App. 2020).
As set forth in Sagapolutele-Silva, as applied in this
case, the defendant’s physical performance on a field
sobriety test was not testimonial, and the defendant’s
responses to whether she would participate in the test and
whether she understood the instructions were attendant to
legitimate police procedures, and should not have been
suppressed. We further hold, however, that the medical
rule-out questions posed by the officer were reasonably
likely to elicit an incriminating response, and that the
District Court did not err in suppressing those statements.
Finally, for the reasons stated below, we conclude that a
statement made by the defendant in response to being asked
whether she would participate in the test and being told
that she was not being asked whether she was drinking, was
not the result of custodial interrogation and should not
have been suppressed.
State v. Skapinok, No. CAAP-XX-XXXXXXX, 2020 WL 2991783, at *1
(App. June 4, 2020) (mem.)
The ICA reasoned that “the touchstone in analyzing
whether ‘interrogation’ has taken place is whether the police
officer ‘should have known that [their] words and actions were
reasonably likely to elicit an incriminating response from the
defendant.’” Id. at *5 (quoting Kazanas, 138 Hawai‘i at 38, 375
P.3d at 1276). Skapinok was under investigation for OVUII at
the time the relevant questions were asked, and Officer
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Meredith’s observations of her driving, her eyes, and the smell
of alcohol furnished reasonable suspicion (but not probable
cause) for OVUII. Id. Because “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 her,
such as when a driver is asked to participate in a SFST,” and in
light of Muniz’s holding that questions “necessarily ‘attendant
to’ the police procedure” are permissible, the ICA held the
district court “erred by suppressing Skapinok’s response to
whether she would participate in the SFST, whether she
understood the instructions to the SFST, and the officer's
observations of her performance on the SFST.” Id. at *6 (first
citing State v. Wyatt, 67 Haw. 293, 302, 687 P.2d 544, 551
(1984); then citing Muniz, 496 U.S. at 603-04).
However, the ICA concluded that the medical rule-out
questions were “reasonably likely to elicit an incriminating
response.” Id. (quoting Kazanas, 138 Hawai‘i at 38, 375 P.3d at
1276). “An incriminating response is any response, either
inculpatory or exculpatory.” Id. (citing Innis, 446 U.S. at 301
n.5). But the ICA noted that a physical response – like the
“inability to articulate words in a clear manner” – is not a
testimonial response requiring Miranda warnings. Id. (citing
Muniz, 496 U.S. at 590-91). The ICA held: “Based on, inter
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alia, our analysis in Sagapolutele-Silva, we conclude that the
medical rule-out questions posed to Skapinok were reasonably
likely to elicit an incriminating response and, therefore,
constituted interrogation.” Id.The ICA finally addressed the district court’s
suppression of Skapinok’s statements in response to Officer
Meredith’s statements that he wasn’t asking her if she was
drinking, concluding that this was error. Id. at *8. The ICA
reasoned that “informing a defendant of the reason for being
stopped or arrested does not constitute custodial interrogation
likely to elicit an incriminating response,” and that Officer
Meredith’s statements were otherwise “attendant to a permissible
OVUII investigation.” Id. “We cannot conclude that Officer
Meredith informing Skapinok that he was not asking her if she
was drinking was reasonably likely to elicit an incriminating
response and therefore, it did not constitute interrogation.”
Id.
D. Supreme Court Proceedings
Both the State and Skapinok sought review in this
court. The State’s application for writ of certiorari presents
two questions: (1) “[w]hether the ICA gravely erred in holding
that the medical rule-out questions asked as part of the [SFST]
are interrogation” and (2) “[w]hether the ICA gravely erred in
affirming the suppression of [Skapinok’s] answers to the medical
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rule-out questions.”
In Skapinok’s application for writ of certiorari, she
first contends that the ICA correctly held that the medical
rule-out questions were interrogation, but failed to address the
district court’s conclusion of law that “all evidence obtained
by HPD after the [medical rule-out] questions are suppressed as
fruit of the poisonous tree.” Skapinok next challenges the
ICA’s conclusion that the district court’s COL 7 9 was erroneous,
arguing that “[t]he ICA gravely erred in holding that Skapinok
was not in ‘custody’ for the ‘separate and distinct[]
investigation’ for OVUII.” 10 Finally, Skapinok asks us to
correct the ICA’s “gravely erroneous holding” that “Skapinok’s
9 The district court’s COL 7 held that the officers had probable
cause prior to the administration of the SFST, and that custody had attached:
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 OVUII and/or
Reckless Driving. Officer Meredith and Corporal Chang did
not need the results of the SFST to arrest Defendant for
OVUII and/or Reckless Driving. Legal custody had attached.
10 Skapinok contends the ICA erred because she “was in ‘custody’ as
the district court correctly concluded[.]” But the ICA affirmed the custody
determination, holding only that the district court erred insofar as “red and
glassy eyes alone and imperfect driving are insufficient to establish
probable cause to arrest a person for OVUII,” a correct statement of Hawai‘i
law. State v. Skapinok, No. CAAP-XX-XXXXXXX, 2020 WL 2991783, at *5
(emphasis added) (citing to State v. Kaleohano, 99 Hawai‘i 370, 377–78, 56
P.3d 138, 145–46 (2002) (“We conclude that red and glassy eyes, a criminal
record, and imperfect driving, standing alone, are insufficient to establish
probable cause to arrest a person for driving under the influence of
drugs.”)).
Since the ICA affirmed that Skapinok was in custody, an issue we
do not address, see infra note 11, and nothing else about this conclusion of
law is germane to the question of what evidence should have been suppressed,
we do not further address Skapinok’s argument as to this conclusion of law.
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right against self-incrimination was not implicated when she was
asked to participate in the SFST,” as well as when she was asked
whether she understood the instructions.
III. STANDARD OF REVIEW
“We review the [trial] court’s ruling on a motion to
suppress de novo and must look to 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) (citation
omitted).
IV. DISCUSSION
A. The Medical Rule-Out Questions Were Interrogation
Article I, section 10 of the Hawai‘i Constitution provides
that “[n]o person shall . . . be compelled in any criminal
case to be a witness against himself.” State v. Pau‘u, 72
Haw. 505, 509, 824 P.2d 833, 835 (1992) (quoting article
[I], section 10). It is established that “[w]hen a
confession or other evidence is obtained in violation of
[this right], the prosecution will not be permitted to use
it to secure a defendant’s criminal conviction.” Id.(citing State v. Russo, 67 Haw. 126, 681 P.2d 553 (1984)).
State v. Eli, 126 Hawai‘i 510, 519–20, 273 P.3d 1196, 1205–06
(2012) (alterations in original).
Miranda warnings safeguard the right against self-
incrimination contained in article I, section 10 of the Hawai‘i
Constitution, and a defendant’s statements adduced in violation
of Miranda cannot be used against them at trial. Kazanas, 138
Hawai‘i at 34, 375 P.3d at 1272. But not all police questioning
must be preceded by Miranda warnings. “A defendant seeking to
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suppress [their] statement [for want of Miranda warnings] ‘must
establish that [their] statement was the result of (1)
“interrogation” that occurred while [they were] (2) “in
custody.”’” Id. at 35, 375 P.3d at 1273 (quoting State v.
Ketchum, 97 Hawai‘i 107, 118, 34 P.3d 1006, 1017 (2001)). The
ICA held, and the State does not now challenge, that Skapinok
was in custody at all relevant times. 11 Therefore, the State’s
application presents only the question of whether the medical
rule-out questions were interrogation.
1. The ICA misapplied Pennsylvania v. Muniz
This court adopted under the Hawai‘i Constitution the
definition of interrogation set forth in Innis: “In determining
whether an officer’s questions constitute interrogation, the
test is whether the officer should have known that [their] words
and actions were reasonably likely to elicit an incriminating
response from the defendant.” State v. Paahana, 66 Haw. at 503,
666 P.2d at 595–96 (citing Innis, 446 U.S. at 301); State v.
Trinque, 140 Hawaiʻi 269, 277, 400 P.3d 470, 478 (2017) (“There
are several important considerations in this court’s definition:
‘interrogation’ under Miranda refers to (1) any words, actions,
or practice on the part of the police, not only express
11 The State’s application admits that it “conceded at the hearing
in this case that Skapinok was in custody.” This opinion therefore does not
address custody and assumes that Skapinok was in custody at all relevant
times.
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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.”); Kazanas, 138
Hawaiʻi at 38, 375 P.3d at 1276 (“We agree and reaffirm that the
touchstone in analyzing whether ‘interrogation’ has taken place
is whether the police officer ‘should have known that [their]
words and actions were reasonably likely to elicit an
incriminating response from the defendant.’” (citation
omitted)). “‘[I]ncriminating response’ . . . refer[s] to any
response – whether inculpatory or exculpatory – that the
prosecution may seek to introduce at trial.” Innis, 446 U.S. at301 n.5.
In Sagapolutele-Silva, upon which the ICA relied in
the instant case, the ICA concluded that “the medical rule-out
questions posed to [the defendant]” – which were largely
identical to those administered to Skapinok 12 – “were reasonably
likely to elicit an incriminating response and, therefore,
constituted interrogation.” 147 Hawaiʻi at 102, 464 P.3d at
890. 13 There, the ICA based this conclusion on Muniz:
12 In addition to the seven questions asked to Skapinok in this
case, the officer in Sagapolutele-Silva also asked the defendant if she wore
corrective lenses. 147 Hawaiʻi at 102, 464 P.3d at 890.
13 The ICA’s memorandum opinion in the instant case relied on this
reasoning and did not opine any further:
(continued . . .)
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In Muniz, an officer asked a defendant if he knew the date
of his sixth birthday to which the defendant responded:
“No, I don't.” [Muniz, 496 U.S. at 586.] The Muniz court
held the question constituted interrogation because it
required a testimonial response. Id. at 600[.]
. . . .
Here, although [the officer] stated that the purpose
of the medical rule-out questions was to assist him in
evaluating [the defendant]’s physical performance on the
SFST, which is non-testimonial evidence, his subjective
intent is not relevant. Kazanas, 138 Hawaiʻi at 40, 375
P.3d at 1278 . . . . The medical rule-out questions
required a testimonial response that disclosed facts
relating to the offense of OVUII and that was reasonably
likely to assist the police in determining whether [the
defendant] was under the influence of an intoxicant by
either admitting or denying there were other causes that
could explain her actions. A negative response to all of
the questions is testimonial, and combined with physical
characteristics of impairment, supports an incriminating
inference of impairment. Similarly, a positive response to
whether a defendant is taking any medicines, in some
instances, may constitute an incriminating statement.
Sagapolutele-Silva, 147 Hawaiʻi at 102, 464 P.3d at 890.
Respectfully, the ICA incorrectly analyzed Muniz in
Sagapolutele-Silva. Muniz addressed a number of questions asked
in connection with a drunk-driving arrest, one of which was the
sixth birthday question described above. But the Supreme Court
(continued . . .)
Based on, inter alia, our analysis in Sagapolutele-
Silva, we conclude that the medical rule-out questions
posed to Skapinok were reasonably likely to elicit an
incriminating response and, therefore, constituted
interrogation. See Sagapolutele-Silva, No. CAAP-19-
0000491, 2020 WL 1699907, slip op. at 17-20 (Haw. App.
April 8, 2020).
Skapinok was in custody. She had not been given
Miranda warnings. The medical rule-out questions
constituted interrogation. Thus, we conclude that her
responses to those questions should have been suppressed
and the District Court did not err in so concluding in COLs
13 and 17.
Skapinok, mem. op. at *6-7.
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held as it did because it determined the response to that
question was testimonial – in other words, the “communication
. . . itself, explicitly or implicitly, relate[d] a factual
assertion or disclose[d] information.” Muniz, 496 U.S. at 594(quoting Doe v. United States, 487 U.S. 201, 210 (1988)).
Pennsylvania had argued that the question did not require a
testimonial response because “the inference [from the answer]
concerns ‘the physiological functioning of Muniz’s brain,’” not
any particular fact related to the crime. Id. at 593 (brackets
omitted). The Court disagreed because the content of the answer
would have supported the conclusion he was impaired – “the
incriminating inference of impaired mental faculties stemmed,
not just from the fact that Muniz slurred his response, but also
from a testimonial aspect of that response.” Id. at 599. In
this way, the sixth birthday question differed from non-
testimonial observations that can be compelled, such as a voice
sample or blood alcohol content. Id. at 593.
In this case and in Sagapolutele-Silva, there is no
dispute that the responses to the medical rule-out questions are
testimonial. The contents of the answer, as opposed to the
manner in which the answer is given, communicate the information
that may or may not be used to support the incriminating
inference of impairment. Indeed, Muniz took as given that the
question was incriminating. 496 U.S. at 592. The “birthday
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question” analysis in Muniz therefore provides little assistance
to answering the determinative question: whether the medical
rule-out questions would be “reasonably likely to elicit an
incriminating response.” Id. at 601.
2. Under article I, section 10 of the Hawai‘i
Constitution, evaluating whether questions are
“attendant to” a police procedure still requires an
inquiry into whether the officer knew or should have
known the questions were reasonably likely to elicit
an incriminating response
The Muniz court did, however, consider whether certain
questions asked in advance of an SFST when defendant Muniz was
in custody were interrogation. The Court held that the “limited
and carefully worded inquiries as to whether Muniz understood
th[e] instructions” to each component of the SFST were not
interrogation. Muniz, 496 U.S. at 603. Rather, “these focused
inquiries were necessarily ‘attendant to’ the police procedure,”
and therefore Muniz’s answers “were not elicited in response to
custodial interrogation.” Id. at 603–04. The Court cited to
South Dakota v. Neville, 459 U.S. 553 (1983), which “h[eld] that
police inquiry [into] whether [the] suspect would submit to
blood-alcohol test was not ‘interrogation within the meaning of
Miranda.’” Muniz, 496 U.S. at 604 (quoting Neville, 459 U.S. at564 n.15). Neville explained:
[P]olice words or actions “normally attendant to arrest and
custody” do not constitute interrogation. The police
inquiry here is highly regulated by state law, and is
presented in virtually the same words to all suspects. It
is similar to a police request to submit to fingerprinting
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or photography. Respondent’s choice of refusal thus enjoys
no prophylactic Miranda protection outside the basic Fifth
Amendment protection.
459 U.S. at 564 n.15 (quoting Innis, 446 U.S. at 301).
In Gibson v. Commonwealth, 706 S.E.2d 541 (Va. Ct.
App. 2011) – a decision that the ICA in Sagapolutele-Silva
explicitly rejected, 147 Hawaiʻi at 101, 464 P.3d at 889, but
that the State now urges us to adopt – the Court of Appeals of
Virginia relied on Muniz when it held that asking “whether [an
OVUII suspect] had any physical problems” prior to administering
the SFST was not interrogation. 706 S.E.2d at 545. The
Virginia court opined that Muniz “recognized two exceptions to
this definition of interrogation”: (1) the “‘routine booking
question’ exception which exempts from Miranda’s coverage
questions to secure the ‘biographical data necessary to complete
booking or pretrial services,’” and (2) the exception for
“inquiries ‘necessarily “attendant to” [a legitimate] police
procedure.’” Id. (brackets in original) (quoting Muniz, 496
U.S. at 601, 603-04). Applied to the question at issue, “[t]he
‘physical problems’ question is sufficiently analogous to asking
whether [the suspect] understood [the officer’s] instructions as
to how each test is to be performed. Both questions are clearly
meant to assure the validity of the test and not to elicit an
incriminatory response.” Id.25
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In turn, Gibson relied on the analysis of the Supreme
Court of Vermont, which had also “recognized that inquiries
intended to assure the validity of a legitimate police procedure
fall under the ‘necessarily attendant to a legitimate police
procedure’ exception.” Id. In State v. Blouin, 716 A.2d 826(Vt. 1998), the Supreme Court of Vermont held that asking an
OVUII suspect prior to administering a breath test whether he
“burped, belched or vomited within the last fifteen minutes” –
the purpose of which “is to ensure that trace amounts of alcohol
are not in the mouth which could render an inaccurate test
result,” id. at 827 – did not require Miranda warnings. Id. at
830. The Blouin court determined that the “burp question” was
not likely to elicit an incriminating response because:
The burp question is designed to help assure the accuracy
of the test – an objective as significant to the suspect as
to the State. In and of itself, there is nothing
incriminating about defendant’s response: if defendant had
answered yes to the question, the officer would have merely
waited another fifteen minutes to obtain accurate test
results. In short, the burp question is not interrogation.
Id.We decline to adopt an exception to the interrogation
test that obviates the need to inquire into whether the question
would elicit an incriminating response when the question is
attendant to the SFST or otherwise “necessarily ‘attendant to’
the legitimate police procedure.” Muniz, 496 U.S. at 605
(citing Neville, 459 U.S. at 564 n.15). While we have
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explicitly recognized the “attendant to arrest and custody”
carve-out to the definition of “interrogation,” Trinque, 140
Hawaiʻi at 277, 400 P.3d at 478, Hawaiʻi law points against
eliminating the “incriminating response” inquiry even when the
police ask questions “attendant to” a routine, legitimate
procedure.
Application of the “routine booking question
exception” is instructive: Muniz recognized that “questions to
secure the biographical data necessary to complete booking or
pretrial services” that are “requested for record-keeping
purposes only” and “reasonably related to the police’s
administrative concerns” do not require Miranda warnings despite
being direct questioning of an in-custody suspect. 496 U.S. at
601-02 (quotation marks omitted). Nonetheless, “the police may
not ask questions, even during booking, that are designed to
elicit incriminatory admissions.” Id. at 602 n.14. The same is
true under the Hawai‘i Constitution:
[I]f the “booking” officer knows or reasonably should know
that a “routine booking question” is likely to elicit an
incriminating response, [they] must administer the
requisite warnings and obtain a valid waiver of the
arrestee’s relevant constitutional rights before posing the
question if the prosecution, in a subsequent criminal
prosecution of the arrestee, is to be permitted to adduce
evidence of the arrestee’s response without running afoul
of article I, section 10 of the Hawai‘i Constitution.
Ketchum, 97 Hawai‘i at 128, 34 P.3d at 1027.
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Ketchum rejected the existence of a so-called “booking
exception” under Hawaiʻi law, but our analysis in that case
comports with that of many other courts, which permit booking
questions without Miranda warnings, but not if the officer knew
or should have known that the question would be reasonably
likely to elicit incriminating information. Compare id. at 119,
120–21, 34 P.3d at 1018, 1019–20 (“[T]he ‘exception’ is, when
scrutinized, no real exception at all. . . . In other words,
the ‘routine booking question exception’ does no more than
recognize that not every ‘express question’ constitutes
‘interrogation.’”) with United States v. Zapien, 861 F.3d 971,
975 (9th Cir. 2017) (“Once the import of the booking exception
is properly understood as part and parcel of the question
whether there has been ‘interrogation,’ it becomes clear that
the determinative issue is whether the officer ‘should have
known that his questions were reasonably likely to elicit an
incriminating response.’” (citation omitted)); see also United
States v. Williams, 842 F.3d 1143, 1147 (9th Cir. 2016) (“The
booking questions exception, however, is subject to an important
qualification: ‘When a police officer has reason to know that a
suspect’s answer may incriminate him, however, even routine
questioning may amount to interrogation.’” (quoting United
States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993)).
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In Ketchum, we held that asking the suspect his
address – to be sure, information that is usually not
incriminating – constituted interrogation when asked after a
drug raid of a residence; the officer knew or should have known
that the information was relevant to establishing constructive
possession of the contraband recovered from the home. 97 Hawai‘i
at 126-27, 34 P.3d at 1025-26. Thus, even usually mundane
biographical information can constitute interrogation if the
officer should know that the question is reasonably likely to
elicit an incriminating response. Other jurisdictions have
similarly held that, for example, asking where a suspect was
born may require Miranda warnings when asked by a federal
immigration agent and where the suspect faces charges related to
illegal entry. United States v. Gonzalez-Sandoval, 894 F.2d
1043, 1046-47 (9th Cir. 1990). Likewise, asking a suspect
during booking whether they are a gang member may be reasonably
likely to elicit an incriminating response depending on the
circumstances and thus require Miranda warnings, despite the
question’s legitimate relationship to “police’s administrative
concerns” of prison security and inmate placement. People v.
Elizalde, 351 P.3d 1010, 1017 (Cal. 2015); Williams, 842 F.3d at
1148-49.
The so-called booking exception is analogous to the
“‘attendant to’ the legitimate police procedure” carve-out that
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the State urges us to adopt. Muniz, 496 U.S. at 605. While the
booking exception independently developed in the federal courts
before Innis and Muniz, it provides a useful touchpoint to
understanding the validity of a purported “attendant to a
legitimate police procedure” exception because they both relate
to the definitional exclusion from interrogation for express
questioning “normally attendant to arrest and custody.”
Trinque, 140 Hawai‘i at 277, 400 P.3d at 478; United States v.
Gotchis, 803 F.2d 74, 79 (2d Cir. 1986) (“Routine questions
about a suspect’s identity and marital status, ordinarily
innocent of any investigative purpose, do not pose the dangers
Miranda was designed to check; they are rather the sort of
questions ‘normally attendant to arrest and custody[.]’”
(quoting Innis, 446 U.S. at 301)). The pragmatic basis for
booking questions and procedural questions is the same: both are
“highly regulated . . . and . . . presented in virtually the
same words to all suspects,” Neville, 459 U.S. at 564 n.15,
posing less risk that the questioning would “subjugate the
individual to the will of [their] examiner and thereby undermine
the privilege against compulsory self-incrimination.” Paahana,
66 Haw. at 502, 666 P.2d at 595 (quotation marks omitted)
(quoting Innis, 446 U.S. at 299). But that is not to say there
is no risk, and we see no reason to treat questions “attendant
to” police procedures differently than “booking questions” under
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the Hawai‘i Constitution – the inquiry in both circumstances is
whether the question is reasonably likely to elicit an
incriminating response.
We therefore hold that under the self-incrimination
clause of the Hawai‘i Constitution, police questioning that is
“‘attendant to’ [a] legitimate police procedure,” Muniz, 496
U.S. at 605, is interrogation if the officer “knows or
reasonably should know that [the question] is likely to elicit
an incriminating response,” Ketchum, 97 Hawai‘i at 128, 34 P.3d
at 1027. In other words, being attendant to a police procedure,
standing alone, does not obviate the need to examine whether the
officer knew or should have known that the questions were
reasonably likely to elicit an incriminating response. If such
questions are reasonably likely to elicit an incriminating
response, they must be preceded by Miranda warnings in order to
be admissible.
3. The medical rule-out questions were reasonably likely
to elicit an incriminating response
We must then apply this principle to the seven medical
rule-out questions asked to Skapinok in this case:
i. Do you have any physical defects or speech
impediments?
ii. Are you taking any medications?
ii. 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?
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Corporal Chang knew or should have known that “are you
taking any medications” is reasonably likely to elicit an
incriminating response. A person may be guilty of OVUII if they
“operate[] or assume[] actual physical control of a vehicle
. . . [w]hile under the influence of any drug that impairs the
person’s ability to operate the vehicle in a careful and prudent
manner.” HRS § 291E-61(a)(2). “Drug” is defined as “any
controlled substance, as defined and enumerated in schedules I
through IV of chapter 329, or its metabolites.” HRS § 291E-1
(2007). In turn, Chapter 329, the Uniform Controlled Substances
Act, classifies numerous legal prescription medications as
controlled substances in schedules I through IV, including, for
example: Marijuana (HRS § 329-14(d)(20) (2010)), Xanax (HRS
§ 329-20(b)(1) (2010)) (identified by its generic name
Alprazolam), and Ambien (HRS § 329-20(b)(54) (2015)) (identified
by its generic name Zolpidem). Someone who is lawfully
prescribed and taking a medication that is a controlled
substance confronts the “cruel trilemma of self-accusation,
perjury or contempt,” Muniz, 496 U.S. at 596 (quoting Doe, 487
U.S. at 212), when faced with this question: lie, incriminate
themselves with the truth, or say nothing and face arrest.
Even answering the question with a medication that is
not a controlled substance may be incriminating, as Skapinok’s
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answer demonstrates. Corporal Chang testified that he knew
Wellbutrin can interact with alcohol to create side effects that
look like impairment. Even if Skapinok did not consume enough
alcohol to exceed the breath or blood alcohol content
thresholds, she may still be guilty of OVUII if she “operate[d]
or assume[d] actual physical control of a vehicle . . . [w]hile
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.” HRS § 291E-61(a)(1). As
Skapinok has pointed out, “[n]othing in the statute requires
that alcohol be the sole or exclusive cause of a defendant’s
impairment. Rather, what is required is proof beyond a
reasonable doubt that liquor contributed to the diminishment of
the defendant’s capacity to drive safely.” Vliet, 91 Hawaiʻi at
293, 983 P.2d at 194; see also id. at 294, 983 P.2d at 195
(citing favorably to, inter alia, State v. Daniels, 379 N.W.2d
97, 99 (Minn. Ct. App. 1986), in which a defendant was convicted
for consuming alcohol and an anti-depressant). Skapinok, too,
faced the “cruel trilemma”: admit to the incriminating fact that
she was taking Wellbutrin, lie, or face certain arrest by
remaining silent. Thus, given that many answers to “[a]re you
taking any medications” would incriminate an OVUII suspect, the
officers knew or should have known that asking a person under
investigation for OVUII if they are taking any medication is
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reasonably likely to elicit an incriminating response. Even
though the question relates to the administration of the SFST,
if the suspect is in custody, this question must be preceded by
Miranda warnings for the answer to be admissible.
The remaining medical rule-out questions at issue here
do not present the same direct link to the crime being
investigated. “Do you have any physical defects or speech
impediments?”; “[a]re you under the care of a doctor or dentist
for anything?”; “[a]re you under the care of an eye doctor?”;
“[d]o you have an artificial or glass eye?”; “[a]re you
epileptic or diabetic?”; and “[a]re you blind in either eye?”;
elicit information that, standing alone, neither inculpates nor
exculpates the defendant of OVUII. 14 But Skapinok argues these
questions, as a battery, are incriminating because they serve to
rule out other possibilities for poor performance on the SFST.
In other words, the incriminating inference to be drawn from all
“no” responses is that only drugs or alcohol could have caused
the defendant to exhibit signs of intoxication on the test. The
lone dissenter in Blouin agreed with this argument as to the
14 Both Gibson and Blouin reasoned that “assuring the accuracy of
the [test] is just as significant to [the defendant] as it is to the
[government].” Gibson, 706 S.E.2d at 546; Blouin, 716 A.2d at 830. Whether
or not the question is “significant” to the defendant is of no matter.
Indeed, an incriminating response is “any response – whether inculpatory or
exculpatory – that the prosecution may seek to introduce at trial.” Innis,
446 U.S. at 301 n.5 (1980) (first emphasis added); Miranda v. Arizona, 384
U.S. at 477 (“[N]o distinction may be drawn between inculpatory statements
and statements alleged to be merely ‘exculpatory.’”).
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“burp” question: “the interrogatory is designed to bolster the
quality of evidence against the suspect and, thus, calls for an
incriminating response.” 716 A.2d at 831 (Skoglund, J.,
dissenting). Likewise, in State v. Forsyth, 859 A.2d 163 (Me.
2004), the Supreme Judicial Court of Maine rejected the State’s
argument that asking whether the defendant “had any physical
impairments” in advance of a component of the SFST was “a mere
preliminary question for the officer to determine whether or not
a test would be fair” akin to “general health and other similar
booking questions”: “[w]e do not agree that such a question does
not seek to elicit incriminating statements. The question asks
a suspect to provide information to assist the officer in ruling
out anything other than intoxication as an explanation for
[their] performance on a field sobriety test.” Id. at 165.
We conclude that all of the medical rule-out questions
are interrogation. Although the “incriminating inference” may
be indirect, the questions nevertheless adduce evidence to
establish that intoxication caused any poor performance on the
SFST. Sagapolutele-Silva, 147 Hawaiʻi at 102, 464 P.3d at 890.
Indeed, Corporal Chang testified that the medical rule-out
questions “focuse[d] [his] attention away from medical and
physical problems and . . . more on a cause by an intoxicant[.]”
And the State, in its application, admitted that the questions
do not just “ensure the accuracy” of the SFST, but “assist the
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trier-of-fact in evaluating the OVUII suspect’s physical
performance on the SFST.” That they are used to assist the
trier-of-fact shows that the medical rule-out questions elicit a
“response — whether inculpatory or exculpatory — that the
prosecution may seek to introduce at trial.” Ketchum, 97 Hawai‘i
at 130, 34 P.3d at 1029 (quoting Innis, 446 U.S. at 301 n.5).
Here, the questions do not merely ensure that the SFST
can be safely performed, they affect the officer’s
interpretation of the test’s output – in other words, the
questions gather evidence against the defendant rather than
simply determining whether evidence can viably be gathered. The
questions’ breadth demonstrates that their scope exceeds what is
needed to assess whether the test can in fact be administered
and crosses into investigatory: it is difficult to understand
how being under the care of a dentist or having a speech
impediment, for instance, would affect whether not the defendant
could safely perform the test. Compared to Muniz, these are not
the “limited and carefully worded inquiries” that case
sanctioned, nor do they reflect that the officers “carefully
limit[] [their] role to providing [the suspect] with relevant
information.” 496 U.S. at 603, 605. Rather, the sweep of the
seven medical rule-out questions asked to Skapinok ensured not
only that the officer could administer the test, but that all
other possible explanations were systemically ruled-out as
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causes of the test’s results. They were interrogation under
article I, section 10 of the Hawai‘i Constitution. Because
Skapinok was in custody at the time the officer asked them,
Miranda warnings were required, and her answers to them must be
suppressed.
B. Neither Asking if Skapinok Would Participate in the SFST
nor Asking if She Understood the Instructions Constituted
Interrogation
Although not squarely raised as a point of error, 15 the
ICA did not err by holding that neither asking Skapinok if she
would participate in an SFST nor asking if she understood the
instructions were interrogation. We recently considered the
same questions in State v. Uchima, 147 Hawai‘i 64, 464 P.3d 852(2020):
Here, [the officer administering the SFST] asked [the
defendant] whether he would participate in an [S]FST,
whether he understood the instructions of the individual
tests, and whether he had any questions. These preliminary
questions were not reasonably likely to lead to
incriminating responses because neither an affirmative or
negative response to these questions is incriminating.
Rather, the questions allow the officer to determine
whether [the defendant] was willing to undergo the [S]FST
and whether he understood the officer’s instructions prior
to performing the three tests comprising the [S]FST. Thus,
these questions were not of such nature that [the officer]
should have known that they were likely to elicit an
incriminating response.
Id. at 84, 464 P.3d at 872.
15 The only point of error in Skapinok’s application relates to
fruit of the poisonous tree, but the application nonetheless discusses the
ICA’s treatment of these other questions.
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We reach the same conclusion here. Asking whether
Skapinok would participate in and understood the tests
constituted “limited and focused inquiries” that were not
reasonably likely to elicit an incriminating response. Muniz,
496 U.S. at 605. The ICA did not err by concluding that these
questions are not interrogation.
C. The Evidence Gathered After the Miranda Violation Was Not
“Fruit of the Poisonous Tree”
We must next consider whether the evidence obtained
after the illegality – including questions asked subsequent to
the medical rule-out questions as part of the SFST and
Skapinok’s performance on the SFST (to which we will refer
collectively as “the SFST”) – was tainted by the Miranda
violation as fruit of the poisonous tree. 16 “[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.’” Trinque, 140 Hawaiʻi at
281, 400 P.3d at 482 (quoting State v. Fukusaku, 85 Hawai‘i 462,
16 The record suggests that Skapinok was asked whether she
understood the instructions to the SFST after being asked the medical rule-
out questions. As explained above, this question is not itself
interrogation. The fruit of the poisonous tree doctrine would furnish an
independent ground to suppress this question, but as we explain in this
section, this argument is also unavailing.
We also note that Skapinok squarely raised the fruits doctrine in
her answering brief to the ICA, but the ICA’s memorandum opinion did not
address it. We ultimately agree with the result the ICA reached. But
because fruit of the poisonous tree, if applicable, would require suppression
of evidence acquired after the Miranda violation irrespective of whether that
evidence was the product of interrogation, the ICA erred by failing to
evaluate whether the fruits doctrine applied.
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475, 946 P.2d 32, 45 (1997)). We hold that the SFST was not an
exploitation of the illegality in this case.
We addressed the fruits doctrine under virtually
identical circumstances in State v. Manion, SCWC-XX-XXXXXXX
(Haw. 2022). In that case, during an OVUII investigation, the
defendant was asked the medical rule-out questions while in
custody, in violation of Miranda; Manion argued that his
performance on the SFST must therefore be suppressed as fruit of
the poisonous tree. Id. at *10. But we explained, “Although
they immediately preceded the SFST in time, the medical rule-out
questions did not give the officers information that ‘le[d]
[them] to search for’ evidence of intoxication, nor did the
medical rule-out questions pique their suspicions such that
their investigation was ‘direct[ed]’ towards discovering
evidence of intoxication.” Id. at *12 (brackets in original)
(quoting State v. Lee, 149 Hawai‘i 45, 50, 481 P.3d 52, 57
(2020)).
The same is true here. The officers had already set
out to administer the SFST before asking the medical rule-out
questions – indeed, they had already asked for, and received,
Skapinok’s consent for the tests. “The officers did not exploit
the illegality by continuing to gather evidence that they had
already set out to gather.” Id. And “that the illegally-
obtained evidence is relevant to interpreting subsequently-
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obtained evidence does not mean that discovery of the latter
‘exploit[s]’ the former.” 17 Id. at *14 (quoting State v.
Poaipuni, 98 Hawai‘i 387, 392, 49 P.3d 353, 358 (2002)).
Accordingly, the SFST was not the fruit of the poisonous tree in
this case.
V. CONCLUSION
For the foregoing reasons, although we disagree in
part with its reasoning, the ICA was correct to conclude that
Skapinok’s answers to the medical rule-out questions must be
suppressed but that the other challenged evidence is admissible.
The ICA’s June 30, 2020 judgment on appeal is accordingly
affirmed.
Brian R. Vincent /s/ Mark E. Recktenwald
for Petitioner and Respondent
State of Hawai‘i /s/ Paula A. Nakayama
Alen M. Kaneshiro /s/ Sabrina S. McKenna
for Respondent and Petitioner
Leah Skapinok /s/ Paul B.K. Wong
17 For this reason, respectfully, the dissent incorrectly frames the
inquiry when it considers only whether the questions “[had] an effect on” the
administration of the SFST or “allow[ed] officers to interpret” its results.
Dissent at 14, 16. That the medical rule-out questions are incriminating
because they assist in the interpretation of the test’s results is distinct
from whether the questions lead the officers’ investigation towards the
tests.
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