HSC Restates the “Custody” in Custodial Interrogation; Probable Cause to Arrest Doesn't Always Mean You’re in Custody.

OVERRULED!

 State v. Sagapolutele-Silva (HSC June 3, 2022)

Background. Tiana Sagapolutele-Silva was driving on the H-1 one night with four other passengers. Officer Franchot Termeteet clocked her going 77 mph in a 45-mph zone and saw her drifting between lanes without signaling. Officer Termeteet testified at a suppression hearing that he knew he had probable cause to stop and arrest the driver for excessive speeding and that she was not free to leave. Officer Termeteet pulled her over.

 

He smelled booze coming from the vehicle but was uncertain if it was emanating from Sagapolutele-Silva or the passengers. He saw that Sagapolutele-Silva had red, watery, and glassy eyes and when asked to produce a license, she could not. He asked her to step out of the car. She complied. Then he asked if she would participate in the standard field sobriety tests. She would.

 

Officer Termeteet also testified that before taking the field sobriety tests, officers must ask eight questions to rule out the possibility that a clue of intoxication could have been caused by a medical condition:

 

1. Do you have any physical defects or speech impediments?

2. Are you taking medication?

3. Are you under the care of a doctor or dentist?

4. Are you under the care of an eye doctor?

5. Are you epileptic or diabetic?

6. Do you have an artificial or glass eye?

7. Are you wearing contact lenses or corrective lenses?

8. Are you blind in one eye?

 

Officer Termeteet asked Sagapolutele-Silva these questions without warning her that she had the right to remain silent, that anything she said could be used against her, that she had the right to an attorney before answering these questions, and that if she could not afford one, an attorney would be provided for her. Sagapoultele-Silva answered the questions and Officer Termeteet administered the tests. Then he arrested her for drunk driving and excessive speeding. On the way back to the police car, Sagapolutele-Silva confessed that she had a few beers with her friends.

 

Sagapolutele-Silva moved to suppress her answers to the medical rule-out questions. The district court—with the Hon. Judge Summer Kupau-Odo presiding—granted the motion and deemed her answers inadmissible and the evidence gathered as a result of her answers inadmissible fruits. The prosecution appealed. The ICA affirmed. Both parties petitioned to the HSC.

 

Miranda Warnings are Required only when There’s a “Custodial Interrogation.” 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. The self-incrimination clause “provides us with some of our most treasured protections—preservation of our autonomy, privacy, and dignity against the threat of state action.” State v. Kamanao, 103 Hawai'i 315, 320, 82 P.3d 401, 406 (2003). Before the police question suspects in custody, “the person must be warned that he [or she] has the right to remain silent, that any statement he [or she] does make may be used as evidence against him [or her], and that he [or she] has the right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). These warnings are also mandated by the Hawai'i Constitution. State v. Santiago, 53 Haw. 254, 265-266, 492 P.2d 657, 664 (1971).

 

These warnings are required when the defendant is subjected to a “custodial interrogation”—that is, “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 543 (1982).

 

So What Exactly Does it Mean to be in Custody? The HSC examined several cases going back several decades. It started with State v. Kalai, 56 Haw. 366, 537 P.2d 8 (1975). There, the HSC held that “[w]hat constitutes custodial interrogation outside of the police station . . . depends upon the circumstances of the particular case[.]” Id. at 369, 537 P.2d at 8. The degree to which the investigation focuses on a specific person is one of the “compulsive factors.” Id. In State v. Patterson, 59 Haw. 357, 581 P.2d 752, (1978), the HSC gave more circumstances:

 

[W]hether the defendant was in custody or otherwise deprived of his freedom of action for Miranda purposes is to be determined from the totality of the circumstances, objectively appraised. These would include the place and time of the interrogation, the length of the interrogation, the nature of the questions asked, the conduct of the police, and all other relevant circumstances.

 

Id. at 361, 581 P.3d at 755. Patterson was also the first time the HSC indicated that probable cause suggested custody, but it was not determinative. Id. See also State v. Melemai, 64 Haw. at 481, 643 P.2d at 544. In State v. Ah Loo, 94 Hawai'i 207, 10 P.3d 728 (2000), the test evolved. The HSC made it clear that detaining a person for search and seizure purposes was not quite the same as being in “custody” for Miranda. Id. at 211, 10 P.3d at 732. The HSC held that “if the detained person’s responses to a police officer’s questions provide the officer with probable cause to arrest or, alternatively, if officer’s questions become sustained and coercive . . ., the officer is—at that time—required” to Mirandize. Id. at 212, 10 P.3d at 733.

 

Then came the formulation in State v. Ketchum, 97 Hawai'i 107, 34 P.3d 1006 (2001):

 

[W]e hold that a person is “in custody” for purposes of article I, section 10 of the Hawai'i Constitution if an objective assessment of the totality of the circumstances reflects either (1) that the person has become impliedly accused of committing a crime because the questions of the police have become sustained and coercive, such that they are no longer reasonably designed briefly to confirm or dispel their reasonable suspicion or (2) that the point of arrest has arrived because either (a) probable cause to arrest has developed or (b) the police have subjected the person to an unlawful “de facto” arrest without probable cause to do so.

 

Id. at 126, 34 P.3d at 1025. The HSC recognized that Ketchum states that probable cause in and of itself determined custody, but the totality-of-the circumstances test was never overruled.

 

The Special Context of Traffic Stops. The HSC looked to two cases from the 1980s to show that probable cause alone is not enough to determine custody. In State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984), the driver was stopped for driving without headlights on in Waikiki—a misdemeanor in the county traffic code. Id. at 296 n. 3, 687 P.2d at 547 n. 3. The existence of probable cause did not determine “custody” triggering Miranda warnings then. The HSC noted that the focus was on the totality of the circumstances and focused on the coerciveness of the encounter. Id. at 299, 687 P.2d at 549. See also State v. Kuba, 68 Haw. 184, 189, 706 P.2d 1305, 1309-1310 (1985). According to the HSC, this is the preferred approach for traffic stops because “it allows the police to adequately investigate before deciding whether to arrest a suspect or to simply issue a citation.”

 

The HSC was concerned that forming a rule that a person is in custody the moment probable cause arises “requires police officers to make an ‘all or nothing’ choice between arrest and inaction[.]” The HSC noted that if Officer Termeteet had to Mirandize Sagapolutele-Silva at the outset, she could have “invoked her right to remain silent or to have counsel present [and] Officer Termeteet would not have been able to conduct a field sobriety test to determine whether she was safe to drive and would have been forced to decide on other facts whether to arrest her or to simply cite her and allow her to drive away.” Relying on cases from federal courts, the HSC noted that a bright-line test focusing on probable cause advance the purpose of Miranda, which is to prevent the police from coercing suspects into answering incriminating questions. See Howes v. Fields, 565 U.S. 499, 508-509 (2012).

 

The HSC’s Restatement of the Totality-of-the-Circumstances Test. The HSC “clarified” the applicable test to determine custody:

 

To determine whether a suspect is in custody for Miranda purposes under article I, section 10 of the Hawai'i Constitution, a court must consider the totality of the circumstances, objectively appraised. The relevant circumstances are those that betoken a significant deprivation of freedom, such that an innocent person could reasonably have believed that he or she was not free to go and that he or she was being taken into custody indefinitely.

 

Other factors include “the time, place and length of the interrogation, the nature of the questions asked, and the conduct of the police at the time of the interrogation.” State v. Wyatt, 67 Haw. at 299, 687 P.2d at 549. While probable cause to arrest may be relevant, it is not dispositive. A temporary investigative detention—like most traffic stops—is often not custodial. It can “morph[] into an arrest” based on more factors like “handcuffing, leading the detainee to a different location, subjecting him or her to booking procedures, ordering his or her compliance with an officer’s directives, using force, or displaying a show of authority beyond that inherent in the mere presence of a police officer.” State v. Ketchum, 97 Hawai'i at 125, 34 P.3d at 1024.

 

And There’s no Custody here under the new test. In applying this test, the HSC held that Sagapolutele-Silva was not in custody and Miranda warnings were unnecessary. Even though there was probable cause to arrest her for excessive speeding, her movement had not been curtailed to the point where it “betokened a significant deprivation of freedom such than an innocent person could reasonably have believed that he or she as not free to go and that he or she was being taken into custody indefinitely.” The HSC noted that the officers did not suggest to Sagapolutele-Silva that she was being arrested despite the probable cause to arrest. She was not told she was under arrest. She was not handcuffed or taken to the police station. It was just two police officers doing a traffic stop. The HSC vacated the suppression order.

 

Justice McKenna’s Dissent. Justice McKenna “respectfully dissented but strongly disagree[d]” with the HSC majority, which consisted of the Chief Justice, Justice Nakayama, and Circuit Court Judge Paul Wong in the vacancy created by Justice Pollack. For Justice McKenna, the test in Ketchum provided a clear bright-line rule: where there was probable cause to arrest, the person was in custody and Miranda warnings are required.

 

Justice McKenna cited the late Justice Antonin Scalia’s law review article about the need for justices to provide clear guidance with bright-line rules and avoid nuanced totality-of-the-circumstances tests. She notes that Justice Scalia urges appellate courts to adopt bright-line rules to guide the lower courts instead of factor-based tests that can result in appellate fact finding. See The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989). She also agreed with Justice Scalia’s view that “the most significant role of judges is to protect the individual criminal defendant against the occasional excesses of popular will, and to preserve the checks and balances within our constitutional system that are designed to inhibit that popular will.”

 

For her, the new test makes it “more difficult to ascertain when ‘custodial’ interrogation begins” and “may result in increased litigation and appeals.” She also noted that this test breaks away from the traditional approach of affording criminal defendants greater protections under our Hawai'i Constitution. See State v. Valera, 74 Haw. 424, 434, 848 P.2d 376, 380 (1993). She also noted that this new test will allow officers who know they have probable cause to hold off on an arrest and delay Miranda warnings to first get a confession or statement. Finally, even under the new test, Justice McKenna would have held that the totality of the circumstances point toward custody. Sagapolutele-Silva was not free to leave once she was stopped. By the time the police asked her the medical rule-out questions, a reasonable person in her position would believe her freedom had been curtailed to the point of an arrest. Justice Wilson joined.

 

Justice Wilson’s Dissent. Justice Wilson wrote separately and dissented in the three opinions released on the same day. In this case, he dissented because like Justice McKenna, the new test “upsends settled constitutional protection against self-incrimination afforded those whom police have probable cause to arrest; the new rule is unmoored from the axiomatic common-sense constitutional precept that a person whom police have reason to arrest—based on probable cause to believe the person has committed a crime, and who therefore is not free to leave police control—is in police custody and thus, is constitutionally entitled to be free from police interrogation.”