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