When it comes to determining an "interrogation," there are no exceptions

 State v. Hoffman (HSC October 17, 2024)

Background. Officer Warren Tavares is an officer with the Department of Land and Natural Resources on the leeward side of Kauai. He saw Randall Hoffman dumping green waste in a trailer attached to a truck. Officer Tavares stopped, approached Hoffman, and pointed to a sign that stated dumping was prohibited. Officer Tavares told Hoffman to stop throwing the green waste because it was illegal. Hoffman responded by saying, “Fuck you, I don’t give a shit.”

 

In an effort to get Hoffman to stop, Officer Tavares told Hoffman that this was unlawful, and he could get cited and arrested for criminal littering. He also said that the State and other agencies worked together, spent more than $100,000 cleaning up the area. He added this was a high crime area with lots of abandoned cars and there had been “drug activity.”

 

Hoffman responded to that by saying “Fuck you.” Hoffman explained that he was turned away from the Hanapepe Refuse Station. Officer Tavares said that he needed to take that up with the county to see why his trailer was too big and that it was not his jurisdiction.

 

Hoffman responded with another “Fuck you.” Officer Tavares got into the trailer and handcuffed Hoffman. He left him there while he went back to his vehicle to get his citation book. When he returned, Hoffman was back on the trailer throwing green waste onto the ground.

 

Officer Tavares took Hoffman to the ground to arrest him. once on the ground, Hoffman wrapped his legs around him and squeezed. Officer Tavarest punched Hoffman in the face twice until Hoffman said, “okay, I’m done.”

 

Hoffman was indicted for assault of a law enforcement officer in the first degree, criminal littering, and resisting arrest. Before trial, the prosecution filed a motion to determine the voluntariness of statements he made to the officer. The circuit court—with the Honorable Kathleen Watanabe presiding—denied the motion and concluded that Hoffman’s statements were inadmissible because he had not been apprised of his Miranda rights. The prosecution appealed. The ICA vacated some of the suppression. It concluded that when Officer Tavares told Hoffman about how the State and other agencies spent money to clean up the area, the officer was engaged in an “interrogation” triggering Miranda warnings. That meant Hoffman’s statement about being refused from Hanapepe Refuse was inadmissible. The ICA concluded that the other statements: the “fuck you, I don’t give a shit” in response to Officer Tavares pointing at the no-littering sign, the “fuck you” in response to Officer Tavares saying that he needed to take it up with the County, and the “ok, I’m done” after Officer Tavares punched him twice in the face and said “stop resisting” were normally attendant to arrest and custody and did not arise to an interrogation. Hoffman petitioned to the HSC.

 

Miranda warnings are required before a “custodial interrogation.” “No person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. Am. V. See also Haw. Const. Art. I, Sec. 10. In order to safeguard this right, suspects must be apprised of their Miranda rights. State v. Hewitt, 153 Hawai'i 33, 43, 526 P.3d 558, 568 (2023). Under the Hawai'i Constitution, which affords greater protections than the Fifth Amendment, “statements obtained from a person subjected to uncounseled custodial interrogation are inadmissible in a subsequent criminal proceeding brought against that person.” State v. Ah Loo, 94 Hawai'i 207, 210, 10 P.3d 729, 731 (2000).

 

[Custodial interrogation arises when] 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 at 43, 526 P.3d at 568. The parties do not dispute that Hoffman was “in custody.” The issue hinges on whether Officer Tavares engaged in an “interrogation.”

 

The test to determine an “interrogation” has no exceptions. “In determining whether an officer’s questions constitute interrogation, the test is whether the officer should have known that his words and actions were reasonably likely to elicit an incriminating response from the defendant.” State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592, 595-96 (1983) (citing Rhode Island v. Innis, 446 U.S. 291 (1980)).

 

While the Supreme Court of the United States gradually adopted exceptions to this test to allow officers to ask routine booking questions without apprising suspects of Miranda warnings, the Hawai'i Supreme Court has not. See, e.g., State v. Ketchum, 97 Hawai'i 107, 120, 34 P.3d 1006, 1019 (2001). The HSC repeatedly emphasized that interrogation occurs “when police know or should know that their words and actions are reasonably likely to elicit an incriminating response from the suspect[.]” State v. Kazanas, 138 Hawai'i 23, 35, 375 P.3d 1261, 1273 (2016).

 

In State v. Trinque, 140 Hawai'i 269, 400 P.3d 470 (2017), the HSC acknowledged that interrogation constitutes an officer’s words or conduct “other than those normally attendant to arrest and custody” that are reasonably likely to invoke an incriminating response. Id. at 277, 400 P.3d at 478. But the HSC in applying the test did not make an exception or carve-out to the test.

 

Then, in State v. Skapinok, 151 Hawai'i 170, 510 P.3d 599 (2022), the HSC made it clear police conduct “normally attendant to arrest and custody” are not an exception to the Paahana test. There, the HSC held that medical rule-out questions asked at traffic stops are not exempt from the interrogation test. Id at 172, 510 P.3d at 601.

 

There is no per se exception under the Hawaiʻi Constitution for questions “necessarily ‘attendant to’ [a] legitimate police procedure.” To avoid suppression for want of Miranda warnings, such questions must pass muster under our well-established interrogation test: “whether the officer should have known that his words and actions were reasonably likely to elicit an incriminating response from the defendant.”

 

Id. at 173, 510 P.3d at 602. In doing so, the HSC rejected the exception recognized by the SCOTUS in Pennsylvania v. Muniz, 496 U.S. 582 (1990).

 

In the end, the HSC recognized “an unbroken chain of Hawai'i appellate precedent . . . that, under the Hawai'i Constitution, police questions ‘normally attendant to arrest and custody’ are still subject to the touchstone inquiry into whether those questions were reasonably likely to elicit an incriminating response.” And so the ICA erred in using an exception.

 

The HSC’s application of the Paahana test. The HSC applied the test to the statements at issue. First, it examined Officer Tavares’s first action: pointing to the sign and telling Hoffman that littering is illegal. The ICA erred in using an exception but nevertheless this conduct, according to the HSC, is not reasonably likely to elicit an incriminating response. Thus, the first statement was not the result of “custodial interrogation.”

 

As for the second statement—the “fuck you” in response to Officer Tavares’s explanation what Hoffman was doing was unlawful and he could get cited or arrested—was reasonably likely to elicit an incriminating response. The third statement—the “fuck you” in response to being told that the trailer size at the Hanapepe Refuse was not Officer Tavares’s jurisdiction—was an “interrogation.”

 

Finally, when Officer Tavares punched Hoffman twice in the face and told him to “stop resisting,” it was not reasonably likely to elicit an incriminating response. Thus, the ICA did not err in finding the words “ok, I’m done” were admissible.