Monday, June 26, 2017

When Building Trust turns to Custodial Interrogation

State v. Trinque (HSC May 25, 2017)
Background. The Kauai Police Department got word of marijuana growing in a pasture in Kilauea. One night the officers were conducting surveillance when they found Rick Trinque and another in a pasture. They were arrested and handcuffed and sat on some rocks while KPD took pictures of them. As one of the officers escorted Trinque out of the pasture, one of them asked him how he got into the filed. He told them “he came over the fence by the banana tree using a ladder that was still located by the fence and that he was caught red handed.” Once out of the pasture, he sat on a bench handcuffed.

One of the vice officers was ordered to watch over Trinque. Lt. Richard Rosa was in plain clothes and had a badge around his neck. He had never met Trinque before. He identified himself to Trinque and told him that he was the officer that worked on his daughter’s case. (Trinque’s daughter went to the police and asked for their help because she believed that people were trying to assault her father.). Lt. Rosa said that if Trinque didn’t’ believe it, he could ask his daughter about it. Lt. Rosa added that “he would not lie to him” and that he was not going to “jerk his chain.” He told Trinque he would be “completely honest with him.” Trinque sat there listening and did not respond. Lt. Rosa told Trinque then said that Trinque should not to say anything until they got back to Lihue at the police station. Trinque responded: “What for? You caught us red handed, there’s nothing left to say, times are hard and we need the money.”

Once in Lihue, Lt. Rosa and other officers took Trinque to an interrogation room and advised him of his rights. Trinque told them that he wanted an attorney. Then they asked if he wanted to make a statement. He said he did not since “he got caught red-handed and was going to jail anyway.”

Trinque was indicted for commercial promotion of marijuana in the first degree and paraphernalia. HRS §§ 712-1249.4(1)(c) and 329-43.5(a). The prosecution filed a motion to determine the voluntariness of Trinque’s three statements: the one in the field; the one on the bench; and the one in Lihue. Trinque filed a motion to suppress the statements. The circuit court suppressed all three. The prosecution appealed and the ICA, in a published opinion, vacated the suppression order. Trinque petitioned for certiorari.

The Hawaii Constitution and Statements to the Police. “No person shall be . . . compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. This provision requires that before a defendant’s statements arising from a “custodial interrogation” are used at trial, Miranda warnings to the suspect must be given first. The unlawfulness in obtaining the first statement in the pasture is undisputed and the HSC examined the remaining two.

The Statement on the Bench: a Trust-Building Tactic is “Interrogation.” A statement made without Miranda warnings and waiver of them is not admissible at trial when the “statement was the result of (1) ‘interrogation’ that occurred while he or she was (2) ‘in custody.’” State v. Kazanas, 138 Hawaii 23, 35, 375 P.3d 1261, 1273 (2016).  There’s no question that when Trinque was cuffed and sitting on the bench being watched over by Lt. Rosa, he was in custody. The question is whether Lt. Rosa engaged in an “interrogation.”

Interrogation includes “not only . . . express questioning, but also . . . any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” State v. Joseph, 109 Hawaii 482, 495, 128 P.3d 795, 808 (2006). And so an “interrogation” is “any practice reasonably likely to invoke an incriminating response without regard to objective evidence of the intent of the police.” Id.

The HSC examined the circumstances surrounding this statement on the bench. Trinque had been arrested and handcuffed in the pasture, ordered to sit on a rock while they took pictures of him. Then they brought him out of the pasture and told him to sit on a bench. Lt. Rosa comes up to him and introduces himself. Then he tells him that he worked on his daughter’s case and that if he didn’t believe him, ask her about it. Lt. Rosa repeatedly offered personal assurances about his trustworthiness—he was going to be “completely honest with him” and that he “wouldn’t jerk his chain”—before telling him not to say anything before they get to Lihue.

According to the HSC, although introducing himself to the suspect would be a “normal procedure that typically attends arrests,” the rest of it was “an attempt to erode Trinque’s guard so that Trinque would freely talk in a manner that would incriminate himself.” There was no other reason to get Trinque to open up. By telling Trinque that he was assisting his daughter, Lt. Rosa appeared to offer Trinque some assistance as an ally in an otherwise adversarial position.

Moreover, at the hearing on the motion, Lt. Rosa testified that his words and conduct were to merely identify himself as a police officer because he was unshaven and in civilian clothes. The HSC noted that Lt. Rosa’s intent is not determinative when determining an “interrogation.”

. . . And he Misled the Suspect by Using the Word “Until.” The HSC additionally noted that Lt. Rosa misinformed Trinque about his constitutional rights. After giving assurances that the could be trusted, Lt. Rosa told Trinque not to say anything “until” they got back to Lihue. This gave Trinque the impression that he might as well talk now on the bench since making a statement was inevitable. After all, Trinque’s response was “what for?,” which suggested to the HSC that Trinque did not fully understand that he had the right to refuse any and all questions.

The Third Statement—the one at the Police Station—is a Fruit of the Poisonous Tree. The fruit of the poisonous tree (FOPT) 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, 946 P.2d 32, 45 (1997). The prosecution has the burden of showing an independent alternative to the illegality in order to use the evidence at trial. “In other words, the ultimate question that the fruit of the poisonous tree doctrine poses is as follows: Disregarding the prior illegality, would the police nevertheless have discovered the evidence?” State v. Poaipuni, 98 Hawaii 387, 393, 49 P.3d 353, 359 (2002).

The “Sufficiently Attenuated” Test? In this case, the question is whether the third statement at the Lihue station would have been said and obtained by the police had the police not violated Trinque’s rights in obtaining the first two. According to the HSC, whether a statement is sufficiently attenuated from the illegality depends on the facts of the case and relevant factors include: “(1) the temporal proximity between the official misconduct and the subsequently procured statement or evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” See State v. Eli, 126 Hawaii 510, 524, 273 P.3d 1196, 1210 (2012); State v. Mariano, 114 Hawaii 271, 281, 160 P.3d 1258, 1268 (App. 2007).


Here, the HSC upheld the circuit court’s ruling and held that the prosecution failed to meet its burden in showing that the subsequent statements were not fruits of the poisonous tree. It specifically failed to show that the third statement would have inevitably been uttered regardless of the first two; the fact that they do not refer to each other is not dispositive of showing attenuation; no intervening circumstances indicated that the taint of the first two statements had dissipated by the time the third one was uttered; the lapse in time and location was not dispositive; and finally, advising Trinque of his constitutional rights did not attenuate the unlawfulness. Thus, the final statement was a fruit.

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