Pre-Arrest Silence Requires Miranda Warnings

By Benjamin Lowenthal -
State v. Tsujimura (HSC May 31, 2017)
Background. Lester Tsujimura was charged with operating a vehicle while under the influence of an intoxicant. At trial, Officer Thomas Billins testified that he stopped Tsujimura on the Moanalua Freeway a little after midnight. He approached Tsujimura’s vehicle and asked him to get out of the car. Tsujimura complied. Officer Billins testified that he did not notice him having a hard time getting out of the vehicle. Before performing the field sobriety tests, Tsujimura told the officer that he had an old knee injury. According to Officer Billins, Tsujimura did not “pass” the tests. During trial, the prosecutor asked if Tsujimura told him anything about his knee as he got out of the vehicle. Tsujimura objected on the grounds that that was a comment on his right to remain silent. The trial court overruled the objection and allowed Officer Billins to testify that he said nothing about it. Tsujimura was found guilty as charged and the ICA affirmed.

Pre-Arrest Silence Cannot be Used by the Prosecution at Trial. No person shall “be compelled in any criminal case to be a witness against oneself.” Haw. Const. Art. I, Sec. 10. The HSC held that the plain language of the constitutional provision protects “any person”—regardless of being arrested or accused—from being a witness against oneself. And so the HSC held that the right to remain silent attached here “at least the point when Tsujimura was detained as a result of the investigatory stop.” That meant that the prosecution could not use Tsujimura’s silence against him as he got out of the car.

The Open Question: Pre-Detained? The HSC held that in this case—where the defendant was stopped and seized by the police, but not arrested—the right to remain silent attached. In other words, a person may have the right to remain silent throughout the course of a traffic stop. But what if there was no seizure? What if there was no traffic stop and the officer simply asked a person to stop, and the person said nothing and kept walking? Could that be used against the person at trial? A refusal to comply with an order to stop? A refusal to answer questions from the officer? No one knows. The HSC pointed this out in a footnote that it was not dealing with such an issue because Tsujimura had been seized by the police and asked to get out of his car.


Justice Nakayama’s Concurrence and Dissent. Justice Nakayama agreed with the majority that the right to remain silent “inures at least at the point at which a person has been seized” and that the prosecution cannot elicit evidence from that silence as evidence of the defendant’s guilt. Her disagreement lies in the application of these principles. The prosecutor at trial asked the investigating and later arresting officer if Tsujimura told him that he had trouble getting out of the car. This was not, in her view, an improper comment on the right to remain silent. Chief Judge Recktenwald joined.

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