NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 30-JUN-2020 07:49 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellant, v. JERAMY M. TRONSON, Defendant-Appellee
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT (CASE NO. 1DTA-19-00119)
MEMORANDUM OPINION (By: Ginoza, Chief Judge, Leonard and Chan, JJ.)
Plaintiff-Appellant the State of Hawai#i (State)
appeals from the Notice of Entry of Judgment and/or Order and
Plea/Judgment, filed on May 9, 2019 (Judgment), in the District
Court of the First Circuit, Honolulu Division (District Court).1
On appeal, the State contends that the District Court erred by
granting Defendant-Appellee Jeramy M. Tronson's (Tronson's)
motion to suppress statements, arguing that Tronson was not in
custody or seized until after a standard field sobriety test
(SFST) was administered to Tronson and he was arrested for
1 The Honorable Summer Kupau-Odo presided. NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
in violation of Hawaii Revised Statutes (HRS) § 291E-61(a) (Supp.
2018).2 Thus, the State argues that various of Tronson's
statements, and Tronson's performance on the SFST, should not
have been suppressed. The State also challenges Conclusions of
Law (COLs) 6, 9, 10, 11, 12, and 13 of the District Court's June
13, 2019 Findings of Fact and Conclusions of Law and Order
Granting Defendant's Motion to Suppress Statements (Suppression
Order).
I. BACKGROUND
On December 24, 2018, at about 3:34 a.m., Honolulu
Police Department (HPD) Officer Tyler Maalo (Officer Maalo)
observed Tronson's vehicle nearing the rear of his vehicle, as
they were traveling east on South King Street, approaching
Kapiolani Boulevard.3 As Officer Maalo's vehicle was nearing a
concrete island, he observed Tronson's vehicle pass him on the
left, and then swerve back into his lane to avoid the concrete
2 HRS § 291E-61(a) states, in relevant part:
§ 291E-61 Operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty[.] 3 The background facts are taken primarily from the District Court's Findings of Fact (FOFs), which are set forth in the Suppression Order, and which are not challenged on appeal.
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island, causing Officer Maalo to break hard to avoid a collision.
Officer Maalo activated his blue lights and Tronson pulled into a
shopping center parking lot and stopped.
Upon approaching Tronson, Officer Maalo informed
Tronson that he pulled Tronson over because Tronson almost hit
his vehicle. Tronson apologized for almost hitting the officer's
car. As they were speaking, Officer Maalo detected an odor of
alcoholic beverage emitting from Tronson's breath. The officer
observed that Tronson had red and glassy eyes and that Tronson's
speech was slurred. Officer Maalo asked Tronson if he was
willing to participate in an SFST. Tronson agreed. As Tronson
exited his vehicle, he wobbled and dragged his feet. Tronson was
not free to leave the scene.
Prior to administering the SFST, Officer Maalo asked
Tronson eight preliminary questions, which are known as medical
rule-out questions: Do you have any physical defects or speech
impediments; are you taking any medications; are you under the
care of a doctor or dentist for anything; are you under the care
of an eye doctor; are you epileptic or diabetic; do you have an
artificial or glass eye; are you blind in either eye; and do you
wear corrective lenses. Tronson answered no to all of the
questions.
The SFST consists of three tests and prior to
administering them, Officer Maalo gave Tronson instructions,
asked him if he understood the instructions, and asked him if he
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had any questions. Officer Maalo told Tronson that he would be
judged on how well he followed the instructions. Tronson was not
advised of his Miranda rights at any point.4 After the SFST was
performed, Tronson was arrested for OVUII.
Tronson filed a motion to suppress statements. At the
hearing on the motion to suppress, in addition to the above,
Officer Maalo testified that when he stopped Tronson, he already
had all of the elements for a reckless driving charge and that he
could have arrested Tronson when he first engaged Tronson because
he had probable cause to arrest Tronson for Reckless Driving.5
After the hearing concluded, the District Court found (and
concluded) that Officer Maalo had probable cause to arrest
Tronson for Reckless Driving when the officer first approached
Tronson and Tronson was still sitting in his vehicle. The
District Court's COLs that are challenged on appeal state as
follows: 6. At the time when Officer Maalo first approached Defendant while he was seated in his vehicle, there existed probable cause to arrest Defendant for the offense of Reckless Driving; and Defendant was not free to leave. Accordingly, at this time, Defendant was "in custody" for Miranda purposes.
. . . .
4 See Miranda v. Arizona, 384 U.S. 436 (1966). 5 HRS § 291-2 (2007) provides:
§ 291-2 Reckless driving of vehicle or riding of animals; penalty. Whoever operates any vehicle or rides any animal recklessly in disregard of the safety of persons or property is guilty of reckless driving of vehicle or reckless riding of an animal, as appropriate, and shall be fined not more than $1,000 or imprisoned not more than thirty days, or both.
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9. When Officer Maalo informed Defendant that he was being pulled over for speeding and almost causing a collision, it was a statement reasonably likely to elicit an incriminating response. It was reasonably likely that Defendant would respond to the statement by apologizing or explaining his actions, thereby incriminating himself. As such, Officer Maalo's statement to Defendant about why Defendant was pulled over qualifies as interrogation for Miranda purposes. Accordingly, Defendant's response is suppressed.
10. Pursuant to State v. Ferm, 94 Haw. 17 (2000), a subject's refusal to participate in the SFST can be used at trial to show consciousness of guilt. As such, inviting a subject to participate in the SFST is reasonably likely to elicit an incriminating response. Therefore, Defendant's response to being asked if he'd like to participate in the SFST is suppressed.
11. In State v. Vliet, 91 Haw. 288 (1999), the supreme court ruled that consumption of alcohol only needs to be a contributing factor in a defendant's impairment. Further, State v. Eli, 126 Haw. 510 (2012), held that an incriminating response refers to both inculpatory and exculpatory responses. In an OVUII investigation, where alcohol need only be a contributing factor in a defendant's impairment, the MRO questions are reasonably likely to elicit an incriminating response. As such, Defendant's responses to all MRO questions are suppressed.
12. Defendant was told by Officer Maalo, "You will be judged on how well you follow the instructions . . ." Officer Maalo testified that how well a subject follows his instructions during the SFST may provide insight into the subject's mental faculties. Further, if a subject states that he understands the instructions and has no questions, then any deviation from the instructions while performing the tests is likely to be attributed to impairment by alcohol. As such, providing the instructions to Defendant and asking him if he understands the instructions is reasonably likely to elicit an incriminating response. Therefore, Defendant's response to whether he understands the instructions is suppressed.
13. "The fruit of the poisonous tree [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 Hawaii 462, 475 (1997). Officer Maalo testified that he would not administer the SFST without (1) receiving consent from the subject; (2) going thru [sic] the MRO; and (3) assuring that the subject understands the instructions to each test and has no questions. As such, if any of these questions or sets of questions are suppressed then the results of the SFST become fruit of the poisonous tree. Accordingly, the results of the SFST in its entirety are suppressed.
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On May 9, 2019, the District Court entered the
Judgment, which granted Tronson's motion to suppress statements.
II. POINT OF ERROR
On appeal, the State raises a single point of error,
contending that the District Court erred in COLs 6, and 9 to 13,
and in ordering that Tronson's statements are suppressed, because
Tronson was not in custody or seized until after he took the SFST
and was arrested for OVUII.
III. APPLICABLE STANDARDS OF REVIEW The proponent of the motion to suppress has the burden of establishing, by a preponderance of the evidence, that the statements or items sought to be excluded were unlawfully secured and that his or her right to be free from unreasonable searches or seizures was violated under the fourth amendment to the United States Constitution and article I, section 7 of the Hawai#i Constitution.
State v. Estabillio, 121 Hawai#i 261, 269, 218 P.3d 749, 757
(2009) (citations omitted).
A ruling on a motion to suppress is reviewed de novo,
and the appellate court must look at the entire record on appeal
to determine whether the ruling was right or wrong. State v.
Joseph, 109 Hawai#i 482, 493, 128 P.3d 795, 806 (2006). The
District Court's COLs are also reviewed de novo. See id.
IV. DISCUSSION
The State contends that the District Court erred in
suppressing Tronson's responses to the medical rule-out
questions, Tronson's responses to the SFST instructions,
Tronson's statement in response to why he was stopped, Tronson's
performance on the SFST, and any statements Tronson made after
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the SFST6 because Miranda warnings had not been read to Tronson
immediately upon his being stopped. The State submits that
Miranda warnings were not required because Tronson was not in
custody or interrogated until after the SFST was administered and
he was arrested for OVUII.
We recently addressed these issues in State v.
Sagapolutele-Silva, CAAP-XX-XXXXXXX, 2020 WL 1699907 (Haw. App.
Apr. 8, 2020), wherein, under similar circumstances, we
considered the application of the well-established constitutional
principle that the prosecution may not use statements, whether
exculpatory or inculpatory, stemming from the custodial
interrogation of a defendant unless the defendant has first been
advised of his or her Miranda rights.
In Sagapolutele-Silva, we examined the Hawai#i Supreme
Court's decisions in State v. Wyatt, 67 Haw. 293, 687 P.2d 544
(1984), and State v. Kaleohano, 99 Hawai#i 370, 56 P.3d 138
(2002), before turning to the question of whether Sagapolutele-
Silva's suppressed statements stemmed from custodial
interrogation. Sagapolutele-Silva, 2020 WL 1699907 at *4-5. In
Wyatt, where the defendant was briefly detained and therefore
seized, but not in custody or coercively questioned, the supreme
court held that Miranda warnings were not required before she was
6 None of the FOFs and COLs identify any statements made after the SFST. On appeal, the State fails to identify any such statements. To the extent Tronson made any statements to Officer Maalo after the SFST, the State's argument that the District Court erred in suppressing such statements is waived.
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asked if she had been drinking. Wyatt, 67 Haw. at 297-301, 687
P.2d at 548-50. The supreme court further concluded that the
SFST that the defendant performed was not constitutionally infirm
because the test sought only an exhibition of her physical
characteristics of coordination, rather than communications or
testimony, even though its purpose was to gather evidence of
criminal conduct. Id. at 302-03, 687 P.2d at 551. In Kaleohano,
the supreme court noted that if probable cause to arrest or
sustained and coercive questioning were present, then questions
posed by the police could amount to custodial interrogation.
Kaleohano, 99 Hawai#i at 377, 56 P.3d at 145. The court
concluded that because there was no probable cause to arrest the
defendant, and in light of the fact that the officer did not
subject the defendant to sustained and coercive questioning, the
officer was not required to give the defendant a Miranda warning
prior to asking her if she had been drinking. Id. at 377-78, 56
P.3d at 145-46.
Here, we must examine whether, under the totality of
the circumstances, Tronson's suppressed statements stemmed from
custodial interrogation. Tronson was not in custody merely
because he was seized in connection with a traffic stop. State
v. Ah Loo, 94 Hawai#i 207, 211, 10 P.3d 728, 732 (2000). To
determine whether an interrogation is custodial, the totality of
the circumstances analysis focuses on "the place and time of the
interrogation, the length of the interrogation, the nature of the
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questions asked, the conduct of the police, and [any] other
relevant circumstances[.]" Id. at 210, 10 P.3d at 731 (citing
State v. Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982));
see also State v. Kazanas, 138 Hawai#i 23, 35, 375 P.3d 1261,
1273 (2016) (reiterating same). In this regard, the supreme
court has acknowledged that "no precise line can be drawn"
between "custodial interrogation," on the one hand, and
"permissible general on-the-scene questioning," on the other. Ah
Loo, 94 Hawai#i at 210, 10 P.3d at 731 (citing State v.
Patterson, 59 Haw. 357, 362, 581 P.2d 752, 755-56 (1978))
(brackets omitted). Custodial interrogation is comprised of two
components, "interrogation" and "custody." Kazanas, 138 Hawai#i
at 35, 375 P.3d at 1273. The totality of the circumstances test
applies to custodial interrogation, "in the sense that the
defendant is deprived of his or her freedom of action in any
significant way." Id. In contrast, "the touchstone in analyzing
whether 'interrogation' has taken place is whether the police
officer 'should have known that his or her words and actions were
reasonably likely to elicit an incriminating response from the
defendant.'" Id. at 38, 375 P.3d at 1276 (brackets and citation
omitted).
We first consider whether the District Court erred in
COL 6 by finding that there was probable cause to arrest Tronson
for Reckless Driving when he was initially stopped. In State v.
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Agard, 113 Hawai#i 321, 322, 151 P.3d 802, 803 (2007), the
supreme court explained: We hold that (1) the reckless state of mind definition under HRS § 702–206(3) (1993) applies to the reckless driving statute, HRS § 291–2; (2) in determining whether an identified risk is substantial and unjustifiable under HRS § 702–206(3), the nature and degree of the risk disregarded by the actor, the nature and purpose of his conduct, and the circumstances known to him in acting must be weighed; (3) in this case a reckless state of mind can be inferred from the circumstances to conclude that there was conscious awareness of a substantial and unjustifiable risk to the safety of others and property on the part of Respondent; and (4) deference must be given to the trier of fact with respect to questions of credibility and weight of the evidence.
In other words, it must be shown that the "Defendant
knew whether 'the safety of persons or property' was in peril."
State v. Quinn, No. 30111, 2010 WL 2675349, at *1 (Haw. App. July
7, 2010) (SDO) (quoting State v. Moleta, 112 Hawai#i 233, 240,
145 P.3d 776, 783 (App. 2006)).
As set forth above, at the hearing on Tronson's motion
to suppress statements, Officer Maalo testified that Tronson
passed the officer's car on the left and then abruptly swerved
back into the officer's lane, causing the officer to slam on his
brakes in order to avoid a collision. Officer Maalo caught up
with Tronson's vehicle, activated his blue lights and siren, and
Tronson's vehicle came to a stop in a shopping center. We
conclude that the District Court did not err in concluding that,
at this initial point of the stop, a person of reasonable caution
would have been warranted in believing that Tronson had a
conscious awareness that his driving had posed a substantial and
unjustifiable risk to the safety of others and property, to wit,
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Officer Maalo and/or his vehicle. See HRS § 291-2; Agard, 113
Hawai#i at 322, 151 P.3d at 803; State v. Maganis, 109 Hawai#i 84,
86, 123 P.3d 679, 681 (2005) ("Probable cause exists when the
facts and circumstances within one's knowledge and of which one
has reasonably trustworthy information are sufficient in
themselves to warrant a person of reasonable caution to believe
that an offense has been committed. This requires more than a
mere suspicion but less than a certainty." (Emphasis and
citation omitted)). Accordingly, the District Court did not err
in concluding that Officer Maalo had probable cause to arrest
Tronson for Reckless Driving at this point.
That said, Officer Maalo was not required to provide
Tronson with Miranda warnings prior to informing Tronson of why
he was stopped. As we recently held in Sagapolutele-Silva,
"[g]enerally, informing a defendant of the reason for being
stopped or arrested does not constitute custodial interrogation
likely to elicit an incriminating response." Sagapolutele-Silva,
2020 WL 1699907 at *9 (citations omitted); see Rhode Island v.
Innis, 446 U.S. 291, 301 (1980) (holding that the term
"interrogation" does not include "words or actions on the part of
the police [that are] normally attendant to arrest and custody");
United States v. Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir.
1994) ("[W]hen an officer informs a [suspect] of [the]
circumstances" of his arrest or explains evidence against him,
"this information may be considered normally attendant to arrest
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and custody." (quoting United States v. Crisco, 725 F.2d 1228,
1232 (9th Cir. 1984))). Officer Maalo informing Tronson of why
he was stopped did not amount to an "interrogation" and Miranda
warnings were not required. The District Court erred in COL 9 in
concluding that there was an interrogation at this point and in
suppressing the statement Tronson made in response to being
informed of the reason that he was stopped.
As we further noted in Sagapolutele-Silva, there is no
requirement for the police to arrest a suspect once probable
cause is established. Sagapolutele-Silva, 2020 WL 1699907 at *6
(citation omitted). The police need not halt an investigation
the moment they have the minimum evidence to establish probable
cause because it may fall short of evidence necessary to support
a criminal conviction. Id. Nevertheless, "[a]n individual in
police custody may not be subjected to interrogation without
first being advised of his Miranda rights." Id. (citation and
internal quotation marks omitted).
Under the totality of the circumstances in this case,
Tronson was in custody for Reckless Driving. Officer Maalo had
probable cause to arrest him for Reckless Driving when he stopped
him. In addition, as discussed below, upon his initial
conversation with Tronson, Officer Maalo had a reasonable
suspicion that he was driving while intoxicated. Officer Maalo
testified that Tronson was not free to leave from the time he was
stopped. Under the totality of the circumstances, the District
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Court did not err in COL 6 in concluding that Tronson was in
custody and that Tronson should have been given Miranda warnings
prior to any interrogation.
Nevertheless, the investigation for OVUII in this case
constituted a separate and distinct investigation, albeit related
to the initial traffic stop, and it required an independent
reasonable suspicion. See generally Estabillio, 121 Hawai#i at
273, 218 P.3d at 761. There was reasonable suspicion that
Tronson was operating a vehicle while intoxicated based upon his
driving; his red, watery, and glassy eyes; and the smell of
alcohol on his breath. State v. Barrickman, 95 Hawai#i 270, 274-
77, 21 P.3d 475, 479-82 (App. 2001) (there was reasonable
suspicion to investigate driving while intoxicated based on
defendant's glassy eyes and smell of alcohol on breath).
However, red and glassy eyes alone and imperfect driving are
insufficient to establish probable cause to arrest a person for
OVUII. Kaleohano, 99 Hawai#i at 377-78, 56 P.3d at 145-46.
As noted by the supreme court in Kernan v. Tanaka, 75
Haw. 1, 38 n.23, 856 P.2d 1207, 1226 n.23 (1993): Usually, the police administer a field sobriety test consisting of specific procedures when a driver has been stopped as a DUI suspect. If a driver does not exit voluntarily, the police must order him or her out of the vehicle even though probable cause to arrest may not have been established. Should the suspect fail the test, an arrest will ensue. Thus, it is the test failure that provides the police with probable cause to arrest. We do not require the police to have probable cause to arrest prior to the administration of the field sobriety test because such a requirement unduly burdens law enforcement.
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"Field sobriety tests are designed and administered to
avoid the shortcomings of casual observation." Wyatt, 67 Haw. at
302, 687 P.2d at 551 (brackets omitted). Here, Officer Maalo did
not initially have probable cause to arrest Tronson for OVUII
simply based upon noticing that he had red, glassy eyes, and an
odor of alcohol on his breath. And, the right 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,
such as when a driver is asked to participate in a SFST. Id. As
discussed in Sagapolutele-Silva, the Wyatt court held that since
performance on an SFST was neither communication nor testimony,
the trial court did not err by refusing to suppress the officer's
SFST observations. Sagapolutele-Silva, 2020 WL 1699907 at *7
(citing Wyatt, 67 Haw. at 301-03, 687 P.2d at 550-51).
In addition, in Pennsylvania v. Muniz, 496 U.S. 582,
603-04 (1990), the United States Supreme Court rejected the
contention that Miranda warnings are required prior to an inquiry
as to whether a defendant understood SFST instructions, because
the "focused inquiries were necessarily 'attendant to' the police
procedure held by the court to be legitimate." Accordingly,
asking Tronson whether he understood the instructions to the SFST
did not implicate his right to self-incrimination. Thus, we
conclude that the District Court erred in COLs 10, 12, and 13 by
suppressing Tronson's response to whether he would participate in
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the SFST, whether he understood the instructions to the SFST, and
the officer's observations of his performance on the SFST.
However, due to Tronson being in custody for Reckless
Driving, the medical rule-out questions, which were asked in
relation to the OVUII investigation here, constituted
interrogation warranting Miranda warnings. As we noted in
Sagapolutele-Silva, other courts have observed that the failure
to provide a Miranda warning when an individual is in custody for
one crime will taint an interrogation even if the interrogation
relates to a different crime. See Mathis v. United States, 391
U.S. 1, 2, 4-5 (1968) (noting that there is "nothing in the
Miranda opinion which calls for a curtailment of the warnings to
be given persons under interrogation by officers based on the
reason why the person is in custody"); see also, e.g., People v.
Bejasa, 140 Cal. Rptr. 3d 80, 91 (Ct. App. 2012); State v.
Lawler, No. L-96-223, 1997 WL 77511, *1-2 (Ohio Ct. App. Feb. 21,
1997); State v. Lien, No. 32443-5-III, 2016 WL 4267689 (Wash. Ct.
App. Aug. 11, 2016). Here, Officer Maalo testified that Tronson
was not free to leave during his encounter with Tronson in
connection with his investigation into OVUII, and there was
nothing to indicate that Tronson was free to go about his
business before being questioned about OVUII. Tronson was in
custody for Reckless Driving when the medical rule-out questions
were posed.
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"[T]he touchstone in analyzing whether interrogation
has taken place is whether the police officer should have known
that his [or her] words and actions were reasonably likely to
elicit an incriminating response from the defendant." Kazanas,
138 Hawai#i at 38, 375 P.3d at 1276 (citation and internal
quotation marks omitted). Relying upon Innis, 446 U.S. 291
(1980), Kazanas reiterated that "interrogation consists of any
express question - or, absent an express question, any words or
conduct - that the officer knows or reasonably should know is
likely to elicit an incriminating response." Id. (citation and
internal quotation marks omitted). An incriminating response is
any response, either inculpatory or exculpatory. Innis, 446 U.S.
at 301 n.5. In contrast, a physical inability to articulate
words in a clear manner due to lack of muscular coordination of
the tongue and mouth is not testimonial evidence for purposes of
self-incrimination. Muniz, 496 U.S. at 590-91.
In this case, the District Court's FOF 10 identified
the medical rule-out questions posed to Tronson as follows: i. Do you have any physical defects or speech impediments? ii. Are you taking any medications? iii. Are you under the care of a doctor or dentist for anything? iv. Are you under the care of an eye doctor? v. Do you have an artificial or glass eye? vi. Are you epileptic or diabetic? vii. Are you blind in either eye? viii. Do you wear corrective lenses?
Based on, inter alia, our analysis in Sagapolutele-
Silva, we conclude that the medical rule-out questions posed to
Tronson were reasonably likely to elicit an incriminating
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response and, therefore, constituted interrogation. See
Sagapolutele-Silva, 2020 WL 1699907 at *7-8.
Tronson was in custody. He had not been given Miranda
warnings. The medical rule-out questions constituted
interrogation. Thus, we conclude that his responses to those
questions should have been suppressed and the District Court did
not err in so concluding in COL 11.
V. CONCLUSION
For these reasons, the May 9, 2019 Judgment is affirmed
in part and vacated in part. This case is remanded to the
District Court for further proceedings.
DATED: Honolulu, Hawai#i, June 30, 2020.
On the briefs: /s/ Lisa M. Ginoza Brian R. Vincent, Chief Judge Deputy Prosecuting Attorney, City and County of Honolulu, /s/ Katherine G. Leonard for Plaintiff-Appellant. Associate Judge
Alen M. Kaneshiro, /s/ Derrick H.M. Chan for Defendant-Appellee. Associate Judge