STATE OF HAWAI v. MICAH VASCONCELLOS (2022)

SUMMARY DISPOSITION ORDER

I. INTRODUCTION

Petitioner/Plaintiff-Appellant State of Hawai‘i (State) filed a timely application for a writ of certiorari from the July 2, 2020 judgment on appeal of the Intermediate Court of Appeals (ICA) entered pursuant to the ICA's June 5, 2020 Summary Disposition Order (SDO), which affirmed the May 28, 2019 judgment of the District Court of the First Circuit.¹ The district court's judgment granted Respondent/Defendant-Appellee Micah S.K. Vasconcellos's Motion to Suppress Statements after finding that Vasconcellos was subject to custodial interrogation without being given Miranda warnings.

Under our decision in State v. Sagapolutele-Silva, 151 Hawai‘i 283, 511 P.3d 782 (2022), and for reasons set forth therein, Vasconcellos was not in custody at the time he was asked the medical rule-out questions because the circumstances of his stop did not rise to that of a formal arrest. In holding otherwise, the ICA erred.

II. BACKGROUND

Vasconcellos was stopped by a Honolulu Police Department (HPD) officer for Reckless Driving after turning left from a straight-only lane and almost hitting a pedestrian. During the encounter, Vasconcellos acknowledged that he had seen the pedestrian but asserted that he had stopped for and/or swerved around the pedestrian. The officer disagreed. While speaking to Vasconcellos, the officer noticed indicia of intoxication and asked Vasconcellos to exit his vehicle and participate in a Standardized Field Sobriety Test (“SFST”); Vasconcellos consented. The officer then asked Vasconcellos the medical rule-out questions and Vasconcellos answered “no” to each.

Vasconcellos was arrested and charged with Operating a Vehicle Under the Influence of an Intoxicant (OVUII) in violation of Hawai‘i Revised Statutes (HRS) § 291E-61(a)(1) (Supp. 2018)² and Reckless Driving in violation of HRS § 291-2 (2007)³ . As relevant here, Vasconcellos moved to suppress his answers to the medical rule-out questions.⁴ The district court ruled that Vasconcellos was in custody at the time these questions were asked, and the ICA affirmed that finding. The ICA acknowledged that the test for determining whether a suspect is in custody requires consideration of the totality of the circumstances, but emphasized the existence of probable cause to arrest Vasconcellos for Reckless Driving. State v. Vasconcellos, 147 Hawai‘i 145, 464 P.3d 933, 2020 WL 3027399, at *4 (App. June 5, 2020) (SDO). The ICA also held that the medical rule-out questions constituted interrogation. Id. at *5.

A. District Court Suppression Proceedings

On May 28, 2019, the district court held a hearing on Vasconcellos's motion to suppress. After hearing testimony from the State's sole witness, HPD Officer Ross Borges, the district court found that “there was custodial interrogation at the point of Officer Borges's stop of Mr. Vasconcellos's vehicle,” and entered a written order granting Vasconcellos's motion to suppress.

First, on the issue of custody, the court held that because Officer Borges saw Vasconcellos “almost killing a pedestrian ․ there was definitely probable cause for a reckless driving arrest.” Further, “once the vehicle was stopped and Officer Borges observed the defendant's bloodshot eyes, slurred speech, and the odor of alcohol, he also had probable cause to arrest the defendant for OVUII.” The district court noted that Officer Borges “even testified that once he stopped the vehicle, Mr. Vasconcellos was not free to leave.” Accordingly, Vasconcellos was “definitely in custody for Miranda purposes.”

Second, the district court found that Vasconcellos was interrogated from the moment that he was pulled over. The court suppressed all of Vasconcellos's statements, including his response to why he was being stopped and whether he wished to participate in the SFST.⁵

The State appealed.

B. ICA Proceedings

The State raised one point of error to the ICA: “The district court erred in concluding that Vasconcellos was in custody as soon as Officer Borges stopped him or alternatively as soon as Officer Borges observed Vasconcellos’ indicia of intoxication and erred in suppressing all statements made by Vasconcellos and evidence of Vasconcellos’ performance on the SFST.” The State did not specifically challenge the district court's finding that the medical rule-out questions were interrogation.

The ICA affirmed the district court in part, holding that Vasconcellos's answers to the medical rule-out questions were properly suppressed. Id. at *6. However, the ICA vacated the district court's order as to Vasconcellos's other statements, including the results of the SFST, after finding they were not the product of custodial interrogation. Id.

The ICA held that when Vasconcellos told Officer Borges that he had seen the pedestrian and stopped and/or swerved around her — demonstrating he had seen her and was subjectively aware of the risk of hitting her — Officer Borges acquired probable cause to arrest Vasconcellos for Reckless Driving – even though there was not probable cause for an OUVII arrest. Id. Accordingly, the ICA agreed with the district court that Vasconcellos was in custody and “Miranda warnings were warranted prior to any interrogation.” Id. at *5.

The ICA also agreed with the district court that the medical rule-out questions amounted to interrogation. Id. (quoting State v. Sagapolutele-Silva, 147 Hawai‘i 92, 102, 464 P.3d 880, 890 (App. 2020)). Thus, the ICA affirmed the district court's suppression of Vasconcellos's responses to the medical rule-out questions because “Vasconcellos was subjected to a custodial interrogation without having first been given Miranda warnings.” Id. at *6.

The State filed a timely application for certiorari.

C. Application for Writ of Certiorari

The State raises the issues of custody and interrogation in its application for certiorari:

1. Whether the ICA gravely erred in holding that Respond[e]nt-Defendant-Appellee, Micah Vasconcellos (Vasconcellos) was in custody as soon as Honolulu Police Department (HPD) Officer Ross Borges pulled him over.

2. Whether the ICA gravely erred in holding that the medical rule-out questions asked as part of the Standard Field Sobriety Test (SFST) are interrogation.

3. Whether the ICA gravely erred in suppressing Vasconcellos’ answers to the medical rule-out questions.

Vasconcellos did not file a response.

III. DISCUSSION

In our recent decision in Sagapolutele-Silva, we held that whether or not a defendant is “in custody” requires “objectively appraising the totality of the circumstances.” 151 Hawai‘i at 299, 511 P.3d at 798 (citing State v. Melemai, 64 Haw. 479, 481, 643 P.2d, 541, 544 (1982)). There, we explained that the court looks for “any ․ event[s] or condition[s] 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.’ ” Id. (alterations in original) (citing State v. Ketchum, 97 Hawai‘i 107, 125, 34 P.3d 1006, 1024 (2001)).

A temporary investigative detention such as a traffic stop is assessed under a totality of the circumstances analysis. See Sagapolutele-Silva, 151 Hawai‘i at 299, 511 P.3d at 798 (citing State v. Ah Loo, 94 Hawai‘i 207, 211, 10 P.3d 728, 732 (2000)). In considering whether a temporary detention has “morphed into an arrest,” this court looks for factors traditionally associated with arrest, such as “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.” Id. at 299, 511 P.3d at 798 (quoting Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024). Relevant 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,” id. at 299, 511 P.3d at 798 (quoting State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592, 595 (1983)), as well as “whether the investigation has focused on the suspect and whether the police have probable cause to arrest him prior to questioning.” Melemai, 64 Haw. at 481, 643 P.2d at 544.

Here, the totality of the circumstances show that Vasconcellos was not in custody. Although the district court acknowledged Officer Borges's testimony that Vasconcellos “was not free to leave,” the district court made no finding that Vasconcellos's freedom of movement had been curtailed to a “degree associated with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440 (1984). Indeed, the record did not establish that his freedom had been limited to that extent. Vasconcellos was not told he was being arrested; he was not handcuffed or taken to the police station; there were, at most, two officers present during the traffic stop; and Officer Borges did not use physical force or display “a show of authority beyond that inherent in the mere presence of a police officer.” Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024; see State v. Patterson, 59 Haw. 357, 363-64, 581 P.2d 752, 756 (1978) (finding no custody where, inter alia, “[n]o guns were drawn and kept upon the defendant”). Although Officer Borges asked Vasconcellos to step out of his car and over to the sidewalk, that alone is insufficient to turn the traffic stop into a custodial arrest. See Kernan v. Tanaka, 75 Haw. 1, 38, 856 P.2d 1207, 1226 (1993) (“Ordering the driver to exit the vehicle is an extension of the [temporary investigative] seizure that must be accompanied by sufficient facts to support the officer's action.”).

Thus, under a totality of the circumstances analysis, Vasconcellos was not in custody at the time Officer Borges asked the medical rule-out questions, and Miranda warnings were not required.⁶

IV. CONCLUSION

For the foregoing reasons, the ICA erred in affirming the district court's suppression of Vasconcellos's responses to the medical rule-out questions. The ICA's July 2, 2020 judgment on appeal and the district court's May 28, 2019 judgment are vacated as to the suppression of those responses. In all other respects, the judgment of the ICA is affirmed. This case is remanded to the district court for further proceedings consistent with this order.

Mark E. Recktenwald

Paula A. Nakayama

Paul B.K. Wong

I dissent for the reasons stated in my dissenting opinion in State v. Sagapolutele-Silva, 151 Hawai‘i 283, 300, 511 P.3d 782, 799 (2022) (McKenna, J., dissenting).

Sabrina S. McKenna

I respectfully dissent to the Majority's holding that Micah S.K. Vasconcellos (“Vasconcellos”) was not in custody at the time he was asked the medical rule-out questions.

I. Vasconcellos was in custody at the time of the medical rule-out questions because the officer had probable cause to arrest him for reckless driving

As stated in my omnibus dissent to State v. Sagapolutele-Silva, 151 Hawai‘i 283, 511 P.3d 782 (2022), State v. Skapinok, 151 Hawai‘i 170, 510 P.3d 599 (2022) and State v. Manion, 151 Hawai‘i 267, 511 P.3d 766 (2022), I respectfully but strongly disagree with the Majority's recent decisions

discarding the settled constitutional protection against self-incrimination provided to those whom the government has probable cause to arrest. Rather than depart from heretofore unquestioned precedent, this court must affirm the common-sense ruling of the district court that a person is in custody, and thus constitutionally entitled to be free from police interrogation, when the police have probable cause to arrest. See, e.g., State v. Ketchum, 97 Hawai‘i 107, 34 P.3d 1006 (2001).

Vasconcellos was in custody at the time of the medical rule-out questions, as both the Intermediate Court of Appeals (“ICA”) and the District Court of the First Circuit (“district court”) held. Officer Ross Borges (“Officer Borges”) pulled Vasconcellos over at 2:40 A.M. after witnessing Vasconcellos make a left turn from a straight-only lane. In the process of making that turn, Vasconcellos “very narrowly” missed a pedestrian walking in the crosswalk. Officer Borges specifically noted that Vasconcellos “almost killed” the pedestrian and did not swerve around nor stop for the pedestrian. Officer Borges testified that from the time he executed the stop on Vasconcellos, he had probable cause to arrest him for reckless driving and that Vasconcellos was not free to leave the scene.

Upon stopping Vasconcellos, Officer Borges immediately informed him that he was stopped because “he very narrowly missed [hitting] the pedestrian in the cross walk.” In conversing with Vasconcellos, Officer Borges noted that there was a moderate odor of alcohol coming from the car, that Vasconcellos's eyes were bloodshot and his speech was slurred. Thereafter, Officer Borges asked Vasconcellos to step out of his vehicle and Vasconcellos complied. Officer Borges instructed Vasconcellos to follow him over to the sidewalk. Officer Borges testified that if Vasconcellos did not comply with the request to leave his vehicle, he would have arrested Vasconcellos for reckless driving and operating a vehicle under the influence of an intoxicant (“OVUII”). Officer Borges then asked Vasconcellos if he would participate in a standardized field sobriety test (“SFST”) and Vasconcellos eventually agreed. Before administering the SFST, Officer Borges asked Vasconcellos the following medical rule-out questions: “[If he] had any physical defects or speech impediments, if he's currently under the care of a doctor, an eye doctor, or a dentist, if he was diabetic or epileptic, if he was blind in either eye, wearing any contacts, or taking any medications.” Vasconcellos answered no to all of the questions. Officer Borges testified that if Vasconcellos had refused to participate in the SFST, he would have arrested him for reckless driving and OVUII. At some point during this interaction, another officer also arrived on the scene.

Vasconcellos was in custody at the time of the medical rule-out questions. The circumstances of this stop were such that a reasonable person would believe “that he or she was not free to go[,]” as evidenced by the sensible testimony of Officer Borges here that Vasconcellos was indeed, not free to leave. Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024. Vasconcellos was pulled over by Officer Borges at 2:40 A.M. and immediately told that the reason for the stop was because he nearly hit a pedestrian. Moreover, Officer Borges testified to having probable cause to arrest Vasconcellos for reckless driving from the moment he initiated the stop. As this court stated in in State v. Ah Loo, “if the detained person's responses to a police officer's questions provide the officer with probable cause to arrest ․ the officer is—at that time—required to inform the detained person of his or her constitutional rights against self-incrimination and to counsel, as mandated by Miranda and its progeny.” 94 Hawai‘i 207, 212, 10 P.3d 728, 733 (2000) (citations omitted). Here, Vasconcellos’ actions (making an illegal turn and almost hitting and killing a pedestrian, and later acknowledging that he saw the pedestrian) provided Officer Borges with probable cause to arrest him for reckless driving. What is more, if Vasconcellos refused to either leave his vehicle or participate in the SFST, Officer Borges testified that he would have, in fact, arrested him.

In sum, Vasconcellos was in custody for purposes of Miranda because (1) Officer Borges had probable cause to arrest Vasconcellos for reckless driving and OVUII, see Ketchum, 97 Hawai‘i at 126, 34 P.3d at 1025 (“a person is in custody...if an objective assessment of the totality of the circumstances reflects that...probable cause to arrest has developed”) (citations omitted); and (2) a reasonable person in Vasconcellos's situation—pulled over at 2:40 A.M., told that he almost hit a pedestrian, asked to step out of his vehicle, asked to participate in a SFST, and approached by two officers—would not feel free to simply return to his vehicle and drive away. State v. Kauhi, 86 Hawai‘i 195, 203, 948 P.2d 1036, 1044 (1997) (“Generally, a person is seized if, from an objective standpoint and given the totality of the circumstances, a reasonable person would have believed that he or she was not free to leave.”) (citations and quotations omitted).

II. The medical-rule out questions constitute interrogation because they are reasonably likely to elicit an incriminating response

Because Vasconcellos was in custody, it must be determined whether the medical rule-out questions constitute interrogation. State v. Joseph, 109 Hawai‘i 482, 493-94, 128 P.2d 795, 806-07 (2006); State v. Trinque, 140 Hawai‘i 269, 277, 400 P.3d 470, 478 (2017) (explaining that the two triggers for the Miranda requirement are “custody” and “interrogation”). The district court and the ICA correctly concluded that the medical rule-out questions constitute interrogation, and thus, suppressed Vasconcellos's answers to the medical rule-out questions because the failure to provide him with Miranda warnings violated his constitutional right against self-incrimination.

The touchstone of interrogation is “whether the police officer should have known that [their] words or actions were reasonably likely to elicit an incriminating response from the [d]efendant.” State v. Kazanas, 138 Hawai‘i 23, 37, 375 P.3d 1261, 1275 (2016) (citations omitted). An incriminating response refers to both inculpatory and exculpatory responses. State v. Eli, 126 Hawai‘i 510, 522, 273 P.3d 1196, 1208 (2012) (citing Joseph, 109 Hawai‘i at 495, 128 P.3d at 808)). Here, Officer Borges should have—and did—know that the medical rule-out questions were reasonably likely to elicit an incriminating response from Vasconcellos. Officer Borges testified that the purpose of asking the medical-rule out questions was to focus his attention on the results of the SFST as being caused by intoxication rather than a medical or physical condition. That is, if a suspect answers “no” to the medical rule-out questions, Officer Borges is more likely to infer that poor performance on the SFST is due to intoxication, rather than a medical or physical condition. Relatedly, Officer Borges testified that, if a suspect responds that they are taking a certain medication (such as medical marijuana), that could cause him to arrest the suspect for OVUII. Accordingly, because the medical rule-out questions are reasonably likely to elicit an incriminating response, they constitute interrogation. Therefore, as a suspect in custody, Vasconcellos was protected by the right against self-incrimination and could not be asked incriminating medical rule-out questions unless the questions were preceded by Miranda warnings.¹

III. Conclusion

For the foregoing reasons, I respectfully dissent to the Majority's decision to vacate the ICA's July 2, 2020 judgment on appeal and the district court's May 28, 2019 judgment.

Michael D. Wilson

FOOTNOTES

1.   The Honorable Summer M.M. Kupau-Odo presided.

2.   HRS 291E-61(a)(1) provides in relevant part:(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.   HRS § 291-2 provides: “Whoever operates any vehicle ․ recklessly in disregard of the safety of persons or property is guilty of reckless driving of vehicle ․ and shall be fined not more than $1,000 or imprisoned not more than thirty days, or both.”

4.   Vasconcellos's motion to suppress also sought to suppress all of his statements subsequent to the traffic stop. The district court granted this motion in full. On appeal, the ICA only affirmed the district court's suppression of Vasconcellos's answers to the medical rule-out questions while vacating the district court's suppression of Vasconcellos's other statements, including Vasconcellos's statements after being told the reasons for the investigatory stop and being asked to participate in the field sobriety test, and Vasconcellos's performance on the field sobriety test.In its application for certiorari, the State challenges the district court's suppression of Vasconcellos's answers to the medical rule-out questions. Vasconcellos did not file an application for certiorari. Accordingly, this order does not address the suppression of Vasconcellos's other statements.

5.   In addition, the district court found that the SFST would not have been administered if Vasconcellos had not answered the medical rule-out questions, and therefore Vasconcellos's performance on the SFST was fruit of the poisonous tree and should be suppressed. The ICA vacated this holding, and it is not at issue here.

6.   Given that Vasconcellos was not in custody, we need not reach the question of interrogation to conclude that Miranda warnings were not required.

1.   Because it was not raised on certiorari, this dissent does not address the validity of the ICA's decision to vacate the district court's suppression of Vasconcellos's other statements (including Vasconcellos's statements after being told the reasons for the investigatory stop and being asked to participate in the SFST, and Vasconcellos's performance on the SFST).