Monday, February 15, 2016

When an Officer Says Don't Make a Statement, Don't

OVERRULED!!

State v. Trinque (ICA January 29, 2016)
Background. Rick Trinque and Miles Martinez were indicted with commercial promotion of marijuana in the first degree and prohibited acts related to drug paraphernalia. The Kauai Police Department was investigating a marijuana grow operation somewhere in the Kilauea area. Officers heard about over 1,000 plants being grown in a pasture. One night, while the officers were conducting surveillance of the pasture, they came upon Trinque and Martinez. The officers arrested them. Trinque was handcuffed. They were in the pasture surrounded by tall grass and were trying to figure out how to get out of the pasture.

One of the officers asked Trinque how they got into the pasture. Trinque responded that they had a ladder next to a banana tree leaning up against a fence.

Once they got out of the pasture, Trinque was ordered to sit on a bench at a nearby house. An officer assigned to watch Trinque started talking to him. He told him that he worked on a case involving Trinque’s daughter. He assured Trinque that he wasn’t lying or trying to jerk his chain. He also reminded him not to say anything until he had been advised of his constitutional rights. Trinque responded by saying, “What for? You caught us red handed, there’s nothing left to say, times are hard and we needed the money.” The officer told him not to make anymore statements until they got to Lihue.

The police took Trinque to the police station in Lihue. After he was booked, Trinque was taken to an interview room. There he was advised of his Miranda rights using an advice-of-rights form. He was asked by the police if he would make a statement. Trinque said that he did not want to make a statement since he was caught “red-handed and was going to jail anyway.”

Trinque filed a motion to suppress all three statements (the one in the pasture, one on the bench, and one at the station). The motion was granted. The prosecution appealed the suppression of the statement on the bench and the statement at the station.

Miranda v. Arizona and all that. “No person shall . . . be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. See also U.S. Const. Am. V. In order to safeguard a defendant’s constitutional right against self-incrimination, officers must apprise the defendant of his or her constitutional right to remain silent and the right to counsel. Officers must also tell the defendant that anything he or she says can and will be used against him in court and that if he or she cannot afford an attorney, one would be provided free of charge. Finally, before a statement can be used in court as evidence, there must be proof that the defendant waived these rights. Miranda v. Arizona, 384 U.S. 436 (1966).

Miranda warnings and waiver, however, are only required by the police when a defendant is subjected to a custodial interrogation. State v. Paahana, 66 Haw. 499, 503-504, 666 P.2d 592, 596 (1983). In this case, there is no dispute that Trinque was in custody after he had been arrested and handcuffed in the pasture. The real question is whether the statements at issue were the product of an “interrogation.”

A Friendly Chat with the Defendant is not an “Interrogation.” “[T]he ultimate question becomes whether the police officer should have known that his or her words or actions were reasonably likely to elicit an incriminating response from the person in custody.” State v. Ketchum, 97 Hawaii 107, 119, 34 P.3d 1006, 1018 (2001). The ICA held that the interaction on the bench between the officer who knew Trinque’s daughter and Trinque was not an “interrogation” requiring a Miranda warning.

According to the ICA, “it is difficult to see how telling a defendant not to make a statement can constitute ‘interrogation.’” The ICA pointed out that the officer wasn’t trying to elicit an incriminating statement and that he told Trinque not to make a statement. Thus, according to the ICA, there was no basis for the trial court to suppress the statement.

The Third Statement at the Station is Not a Fruit of the Poisonous Tree. Having held that the statement at the bench was admissible, the ICA further held that the third statement at the police station was not a fruit of the poisonous tree. Under the FOPT doctrine, “the use of evidence at trial which comes to light as a result of the exploitation of a previous illegal act of the police” is excluded. State v. Fukusaku, 85 Hawaii 462, 475, 946 P.2d 32, 45 (1997). A confession made after an inadmissible statement is not “automatically inadmissible.” State v. Joseph, 109 Hawaii 482, 499, 128 P.3d 795, 812 (2006).

The ICA independently examined the statement at the police station and held that it was not tainted by the first statement in the pasture and since the second statement was admissible, taint was irrelevant there.

Judge Ginoza’s Concurrence. Judge Ginoza wrote separately from the majority comprised of Chief Judge Nakamura and Judge Foley. Judge Ginoza took “a somewhat different view” about the interaction between the officer watching Trinque on the bench. Judge Ginoza agreed that because the officer told Trinque not to make a statement, it should not be considered the product of a custodial interrogation. However, Judge Ginoza wrote that absent the warning not to make a statement, the officer’s initiating of conversation with the Trinque makes it “foreseeable that in other circumstances, regardless of the intent of the officer, words or actions such as those by [the officer] could start to approach the line of interrogation.”

So what’s the Beef? The split in the ICA panel appears to center around the officers conduct. The majority seems to suggest that the intent of the officer is paramount and because the officer did not intend on getting an “incriminating statement” out of the suspect, it cannot be interrogation. Judge Ginoza’s concurrence is more nuanced. She agreed with the result: that in this case, the officer’s conduct was not likely to elicit an “incriminating” response. But she wrote separately to point out that the officer’s intent does not always determine an “interrogation.”


She’s got a point. An interrogation depends on whether the officer knew or should have known that they were “reasonably likely to elicit an incriminating response.” State v. Eli, 126 Hawaii 510, 522, 273 P.3d 1196, 1208 (2012). In other words, there’s an element of objective measurement. It is not always based on the subjective intents and beliefs of the officer. Moreover, the statement need not be “incriminating.” State v. Joseph, 109 Hawaii at 495, 128 P.3d at 808. So that would mean that an “interrogation” can arise when the officer should have known that his or her words or actions are reasonably likely to elicit any kind of response. Judge Ginoza didn’t dissent because she agreed with the result. Perhaps someday another case will compel (pun fully intended) to break ranks on this point.

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