Even When Medical Rule-Out Questions Suppressed, the Fields Aren't Fruits

 State v. Manion (HSC June 3, 2022)

Background. Daniel Manion was charged with driving under the influence of an intoxicant. He moved to suppress evidence of the field sobriety tests performed outside his vehicle in the middle of the night. A resident in Hawai'i Kai called the police after hearing a car crash. Police arrived and found Manion sitting in a crashed car. Officer Corey Morgan asked Manion if he was injured. Manion said he was not. He was just having a rough day. He also said he drank a “40” at Sandy’s and was on his way home. He said he crashed his car because he was texting. Officer Morgan smelled booze and saw that Manion had red, watery eyes. Officer Morgan believed he had probable cause at this point to arrest Manion for drunk driving.

 

Officer Morgan asked Manion to get out of the car. Manion complied. He asked if he was willing to submit to standard field sobriety tests. He said he would. Then Officer Morgan asked him the medical rule-out questions—questions that are required before the test can be performed. He answered them and performed the test. Officer Morgan arrested Manion for drunk driving. He was never given a Miranda warning.

 

The district court—with the Hon. Judge Summer Kupau-Odo presiding—granted the motion and deemed the performance a fruit of the suppressed answers. The initial conversation about drinking 40s at Sandy’s was not suppressed. The prosecution appealed and the ICA vacated in part. The HSC took up Manion’s petition for certiorari.

 

The Big Concession by the Prosecution. The HSC noted that the prosecution conceded that Manion was in custody and assumed that Miranda warnings should have been given before asking the medical rule-out questions. The issue for the majority was whether the fields and the results of those fields should be suppressed as a fruit of the poisonous tree tainted by the Manion’s answers to the medical rule-out questions. (But check out what happened in State v. Sagapolutele-Silva issued minutes before this case).

 

The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine. The Hawai'i exclusionary rule “serves the dual purposes of deterring governmental officials from circumventing the protections afforded by the Hawai'i Constitution and of protecting the privacy rights of our citizens.” State v. Lee, 149 Hawai'i 45, 49, 481 P.3d 52, 56 (2021). Part of the exclusionary rule is the fruit-of-the-poisonous-tree doctrine. The 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 Hawai'i 462, 475, 946 P.2d 32, 45 (1997). Under this doctrine, “admissibility is determined by ascertaining whether the evidence . . . was discovered or became known by the exploitation of the prior illegality or became known by the exploitation of the prior illegality or by other means sufficiently distinguished as to purge the later evidence of the initial taint.” State v. Trinque, 140 Hawai'i 269, 281, 400 P.3d 470, 482 (2017). The ultimate question is “[d]isregarding the prior illegality, would the police nevertheless have discovered the evidence?” Id. The burden is on the prosecution to show that the evidence is not a fruit. Id.

 

Evidence of the Field Sobriety Tests are not a Fruit of the Un-Mirandized Answers to the Medical Rule-Out Questions. The HSC held that the field sobriety tests did not result from “exploitation of the previous illegality” and the police did not gain anything from the Miranda violation. The HSC explained that evidence obtained after the constitutional violation is not an exploitation of the illegality when it “did not lead the officers to search for th[e allegedly tainted] evidence nor direct any investigation into its discovery.” State v. Lee, 149 Hawai'i at 50, 481 P.3d at 57.

 

According to the HSC, there was no exploitation because the police intended on doing the fields regardless of the medical rule-out questions:

 

Although they immediately preceded the SFST in time, the medical rule-out questions did not give the officers information that led them to search for evidence of intoxication, nor did the medical rule-out questions pique their suspicions such that their investigation was directed towards discovering evidence of intoxication. Rather, the police decided to administer the SFST before committing the Miranda violation . . . . Officer Morgan asked Manion to participate in the SFST, and Manion agreed, prior to any interrogation.

 

Answering the Medical Rule-Out Questions doesn’t Lead to the Evidence of the Field Tests Either. The HSC also rejected Manion’s argument that answers to the medical rule-out questions were a “necessary predicate to the administration” of the tests. According to the HSC, the answers are not determinative to obtaining the evidence:

 

The medical rule-out questions did not point the officers toward the evidence they would discover from the SFST, even if certain answers to those questions (or failing to ask them at all) may have impacted whether they could administer the test as a practical matter. And thought eh answers to the questions provided information germane to the SFST . . ., that the illegally-0btained evidence is relevant to interpreting subsequently-obtained evidence does not mean that discovery of the latter exploits the former.

 

And so the fields were not a fruit.

 

The Performance itself is not Subject to Suppression Because it is not a Statement. “The privilege against self-incrimination is a bar against compelling communications or testimony.” State v. Uchima, 147 Hawai'i 64, 84, 464 P.3d 852, 872 (2020). To be testimonial, the “accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Pennsylvania v. Muniz, 496 U.S. 582, 494 (1990). In other words, “the privilege 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 him or her. State v. Wyatt, 67 Haw. 293, 302, 687 P.2d 544, 551 (1984). See also Schmerber v. California, 384 U.S. 757, 763-764 (1966). The HSC here reaffirmed what it had done in Uchima and Wyatt and held that the fields themselves are not testimonial communications covered directly by the privilege against self-incrimination.

 

Justice Eddins’ Concurrence. Justice Eddins, who did not participate in Sagapolutele-Silva, wrote separately to point out that the big concession in this case was the custodial interrogation conclusion. His final sentences in the two-page concurrence leaves one to wonder how he would have ruled in that case:

At the time of the suppression hearing (and for nearly two decades before it), Ketchum safeguarded the right against self-incrimination with a bright-line rule: a person is “in custody” for the purposes of article I, section 10 of the Hawai'i Constitution is “probable cause to arrest has developed.” 97 Hawai'i 107, 126, 34 P.3d 1006, 1025 (2001). By treating custody as a given in this case, the court effectively, if indirectly, builds new law on the back of the same bright-line rule it has recently tossed aside.

 

Justice McKenna joined.

 

Justice Wilson’s Dissent. Justice Wilson took issue with the majority’s fruit-of-the-poisonous tree analysis. For him, the evidence gathered after the medical rule-out questions derives directly from the Miranda violation and should be excluded as a fruit. The medical rule-out questions are required before the fields can be performed. No officer will perform the tests without satisfactory answers to the medical rule-out questions. “Without knowing what medical conditions a suspect has, poor performance on the SFTS alone cannot lead to a conclusion that the suspect is intoxicated.” Justice Wilson took issue with the majority’s holding that it was not a fruit because the officer had already started the fields procedure and the questions were not subject to suppression. He wrote that just because the officers decided to gather fields evidence “does not mean that the officers did not exploit the defendants’ answers” to the medical rule-out questions. The majority’s holding that all of this a continuation of evidence gathering undermines the fruit of the poisonous tree doctrine. The distinction between interpreting evidence and obtaining evidence is “contrary to the purpose” of the fruits doctrine.