Exchanging text messages did not require Miranda warnings because nobody was “in custody.”

 State v. James (HSC January 3, 2024)

Background. After interviewing a complaining witness, detectives at the Kauai Police Department suspected Dylan James committed sexual assault. The police had the CW contact James to talk about it. The CW tried calling twice and James did not pick up. Then the CW texted him. In the text messages, James admitted to having “rough” sex and texted that “when you were screaming and crawling away from the lifeguard tower . . . couldn[‘]t tell if you were serious[.]” James was indicted with five counts of sexual assault in the first degree.

 

James filed a motion to suppress his statements in the text messages on the grounds that the police used the CW as an agent and failed to apprise James of his constitutional right to remain silent and his right to counsel. The circuit court, with the Hon. Judge Randal Valenciano presiding, granted the motion. The circuit court found that James was “in custody” for Miranda purposes because probable cause had developed by the time the CW called and texted James. Alternatively, the circuit court ruled that the right to counsel had attached when the texting took place.

 

The circuit court granted the motion orally. Four days later, the prosecution filed a motion for reconsideration. That was denied. The circuit court later issued its written order granting the motion to suppress and a month after that a written order denying the motion for reconsideration.

 

The prosecution appealed. The ICA affirmed the suppression order and ruled that it did not have jurisdiction to review the order denying the motion for reconsideration. The prosecution petitioned for a writ of certiorari to the HSC.

 

Miranda warnings require the suspect to be “in custody.”  The Fifth Amendment to the United States Constitution and Article I, Section 10 of the Hawai'i Constitution protect the right against self-incrimination. Law enforcement is required to warn suspects about their rights when they are subject to a custodial interrogation:

 

The Miranda rule is, at core, a constitutionally prescribed rule of evidence that requires the prosecution to lay a sufficient foundation—i.e., that the requisite warnings were administered and validly waived before the accused gave the statement sought to be adduced at trial—before it may adduce evidence of a defendant’s custodial statements that stem from interrogation during [their] criminal trial.

          The prosecution’s burden of establishing that the requisite warnings were given, however, is not triggered unless the totality of the circumstances reflect that the statement it seeks to adduce at trial was obtained as a result of “custodial interrogation,” which, as the United States Supreme court defined it in Miranda, consists of “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of their freedom of action in any significant way.” In other words, the defendant, objecting to the admissibility of their statement and, thus, seeking to suppress it, must establish that their statement was the result of (1) “interrogation” that occurred while they were (2) “in custody.”

 

State v. Hewitt, 153 Hawai'i 33, 43, 526 P.3d 558, 568 (2023).

 

The HSC began with the Fifth Amendment to the United States Constitution. James was not “in custody” because he had not been detained and he was not “deprived of his freedom of action in any significant way” when the CW was texting him. See United States v. Eide, 875 F.2d 1429, 1433 (9th Cir. 1989).

 

Clarifying a bright-line rule: detention is required before determining “custody.” Article I, Section 10 in the Hawai'i Constitution also requires that the suspect be “in custody.” The Hawai'i Constitution defines “custody” with a bright-line rule:

 

[I]f 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.

 

State v. Hewitt, 153 Hawai'i at 43, 526 P.3d at 568 (quoting State v. Ketchum, 97 Hawai'i 107, 34 P.3d 1006 (2001)).

 

According to the HSC, the circuit court and the ICA did not apply this test correctly. The lower courts read the Hewitt-Ketchum test to any situation in which probable cause arises—even “when a defendant is nowhere near a law enforcement official.” The HSC clarified that Hewitt centered on whether the defendant, who had been in a hospital bed surrounded by the police, was “in custody.” Id. at 43-46, 526 P.3d at 568-71. Hewitt itself reiterated Ketchum, which established the bright-line rule that a suspect is “in custody” “when probable cause to arrest exists upon an initial stop or detention.” Hewitt, 153 Hawai'i at 43, 526 P.3d at 568.

 

The HSC held that the rule does not apply when the “police have not stopped or detained the suspect, or have not otherwise deprived the suspect of freedom of action in any significant way.” Probable cause is beside the point if there is no detention or stop.

 

Even if the CW was working for the police when she reached out to James, and even if there had been probable cause to arrest at that point, James was not “in custody” because there had been no “initial stop or detention” or deprivation of freedom of action.

 

But what if there was a stop or detention? The HSC did not disturb the finding that the CW was an agent of the police when she called and texted James. What if the police sent the CW to find James, corner him, confront him, and stop, detain, or “otherwise deprive his freedom of action”? It would seem like Miranda would apply then.

 

The right to counsel did not attach during the text exchange. The HSC took on the circuit court’s alternative basis to suppress the statements. Even when the suspect is not subjected to a custodial interrogation, the right to counsel may attach:

 

An individual has a right to counsel under the sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i State Constitution which guarantees an accused the right to assistance of counsel for [the accused’s] defense. However, this right attaches at critical stages of the criminal prosecution, only at or after the initiation of adversarial judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information or arraignment.

 

State v. Luton, 83 Hawai'i 443, 448, 927 P.2d 844, 849 (1996).

 

The HSC held that the right to counsel did not attach until criminal proceedings were initiated through the grand jury and indictment. This constitutional right did not apply during the text exchange.

 

The ICA has appellate jurisdiction to review the denial of the prosecution’s motion for reconsideration. The HSC also held that the ICA erred when it ruled that it did not have jurisdiction to review the denial of the motion for reconsideration. The “right of appeal in a criminal case is purely statutory and exists only when given by some constitutional or statutory provision.” State v. Bohannon, 102 Hawai'i 228, 236, 74 P.3d 980, 988 (2003).

 

Appeals initiated by the prosecution are limited by HRS § 641-13. The prosecution may appeal “[f]rom a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property, in which case the appellate court shall give priority to the appeal and the order shall be stayed pending the outcome of the appeal[.]” The statute does not expressly cover order denying a motion for reconsideration.

 

 

“As a general rule, we strictly construe” this statute. State v. Timoteo, 87 Hawai'i 108, 112, 952 P.2d 865, 869 (1997). But not always:

 

[T]his strict construction rule, like the rule applicable to penal statutes generally, does not permit the court to ignore legislative intent in the face of statutory ambiguity, nor require the court to reject the construction that best harmonizes with the design of the statute or the end sought to be achieved.

 

State v. Fukusaku, 85 Hawai'i 462, 492, 946 P.2d 32, 62 (1997). In Bohannon, the HSC examined the prosecution’s appeal from both an order suppressing evidence and an order denying the motion for reconsideration of that suppression. Id. at 235, 74 P.3d at 987. The HSC held that the prosecution’s “right to appeal from the order granting [the defendant’s] motion to suppress under HRS § 641-13(7) encompasses a right to appeal from the order denying its motion to reconsider[.]” 102 Hawai'i at 234, 74 P.3d at 986. That is because the denial of the reconsideration is “merely an extension of its order granting . . . motions to suppress and to dismiss.” Id. at 235, 74 P.3d at 987.

 

The HSC held that this situation is indistinguishable from Bohannon. While the statute does not expressly cover the denial of a motion for reconsideration, it “implicitly encompasses a right to appeal” from the order. The ICA erred when it ruled that it had no jurisdiction to review the denial of the motion for reconsideration.