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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    05-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.
                 MICAH VASCONCELLOS, Defendant-Appellee


          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                            HONOLULU DIVISION
                        (CASE NO. 1DTA-18-02776)


                       SUMMARY DISPOSITION ORDER
         (By: Leonard, Presiding Judge, Chan and Hiraoka, JJ.)

             Plaintiff-Appellant State of Hawai#i (State) appeals
from the Notice of Entry of Judgment and/or Order and
Plea/Judgment (Judgment), filed on May 28, 2019, in the District
Court of the First Circuit, Honolulu Division (district court),1
which granted Defendant-Appellee Micah Vasconcellos's
(Vasconcellos) Motion to Suppress Statements.
             On appeal, the State contends that the district court
erred in granting the Judgment and in concluding that there was a
custodial interrogation at the point police stopped
Vasconcellos's vehicle or when they observed Vasconcellos's
bloodshot eyes, slurred speech, and the odor of alcohol, and that




     1
             The Honorable Summer Kupau-Odo presided.
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police were required to provide Vasconcellos with Miranda2
warnings at those points.           The State more particularly argues
that: (1) probable cause to arrest Vasconcellos for Reckless
Driving, in violation of Hawaii Revised Statutes (HRS) § 291-2
(2007),3 did not exist at the time he was stopped; (2) probable
cause to arrest Vasconcellos for Operating a Vehicle Under the
Influence of an Intoxicant (OVUII), in violation of HRS § 291E-
61(a)(1) (Supp. 2018),4 did not exist at the time the police
officer initially observed Vasconcellos's bloodshot eyes, slurred
speech, and the odor of alcohol; and therefore (3) Miranda
warnings were not required at those points because Vasconcellos
was not in custody or subjected to interrogation.            Thus, the

      2
            Miranda v. Arizona, 384 U.S. 436 (1966).

                  A critical safeguard [of the privilege against
                  self-incrimination] is the Miranda warning: an accused
                  must be "warned that he or she had a right to remain
                  silent, that anything said could be used against him
                  or her, that he or she had a right to the presence of
                  an attorney, and that if he or she could not afford an
                  attorney one would be appointed for him or her."

State v. Kazanas, 138 Hawai#i 23, 34, 375 P.3d 1261, 1272 (2016) (quoting
State v. Ketchum, 97 Hawai#i 107, 116, 34 P.3d 1006, 1015 (2001)).

      3
            HRS § 291-2 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.
      4
            HRS § 291E-61(a)(1) provides:

                  §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[.]




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State argues that Vasconcellos's responses to being informed of
why he was stopped, to the medical rule-out questions, and to
whether he was willing to participate in field sobriety tests, as
well as Vasconcellos's actual performance on the field sobriety
tests, should not have been suppressed.
            Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we affirm in part,
vacate in part, and remand for the reasons set forth below.
            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).
            Where an individual is being subjected to custodial
            interrogation, he [or she] may not be asked any questions
            without his [or her] first being advised of his [or her]
            right to remain silent, that anything he [or she] says can
            and will be used against him [or her], that he [or she] has
            the right to have his [or her] attorney present, and that if
            he [or she] cannot afford counsel, one will be appointed for
            him [or her] prior to any interrogation. Miranda v.
            Arizona, 384 U.S. 436, 467-474, 86 S.Ct. 1602, 16 L.Ed.2d
            694 (1966); State v. Santiago, 53 Haw. 254, 492 P.2d 657
            (1971). "Custodial interrogation" means "questioning
            initiated by law enforcement officers after a person has
            been taken into custody or otherwise deprived of his [or
            her] freedom of action in any significant way." 384 U.S. at
            444.

State v. Kalai, 56 Haw. 366, 368, 537 P.2d 8, 11 (1975) (emphasis
omitted).
            Custodial interrogation consists of two components:
"interrogation" and "custody."        Kazanas, 138 Hawai#i at 35, 375
P.3d at 1273.

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          In determining whether the defendant's statement was made in
          a custodial context, the totality of circumstances must be
          considered, including the time, place and length of the
          interrogation, the nature of the questions asked, the
          conduct of the police at the time of the interrogation, and
          any other pertinent factors.

Id. (emphasis omitted) (quoting State v. Paahana, 66 Haw. 499,
502-03, 666 P.2d 592, 595-96 (1983)); see State v. Melemai, 64
Haw. 479, 481, 643 P.2d 541, 544 (1982) (stating that whether a
defendant was in custody or otherwise deprived of his or her
freedom of action in any significant way is determined by
objectively appraising the totality of the circumstances).               "In
this regard, we have 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."
State v. Ah Loo, 94 Hawai#i 207, 210, 10 P.3d 728, 731 (2000)
(brackets omitted) (quoting State v. Patterson, 59 Haw. 357, 362,
581 P.2d 752, 755-56 (1978)).
          In contrast, "determining whether 'interrogation' has
taken place is not measured by the 'totality of the
circumstances,'" Kazanas, 138 Hawai#i at 35, 375 P.3d at 1273,
but rather, "the touchstone . . . 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 omitted)
(quoting Paahana, 66 Haw. at 503, 666 P.2d at 595-96).
          In Ah Loo, the supreme court stated:
          [W]e reaffirm the principle that, when an officer lawfully
          "seizes" a person in order to conduct an investigative stop,
          the officer is not required to inform that person of his or
          her Miranda rights before posing questions that are
          reasonably designed to confirm or dispel--as briefly as
          possible and without any coercive connotation by either word
          or conduct--the officer's reasonable suspicion that criminal
          activity is afoot.

94 Hawai#i at 212, 10 P.3d at 733.      This is because, as a per se
matter, a defendant is not "in custody" for purposes of Miranda
merely because he or she has been "seized" or pulled over
pursuant to a valid traffic stop.       State v. Kaleohano, 99 Hawai#i


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370, 376, 56 P.3d 138, 144 (2002) (citing Ah Loo, 94 Hawai#i at
212, 10 P.3d at 733).    "[I]f neither probable cause to arrest nor
sustained and coercive interrogation are present, then questions
posed by the police do not rise to the level of 'custodial
interrogation' requiring Miranda warnings."         Id. at 377, 56 P.3d
at 145 (quoting Ah Loo, 94 Hawai#i at 210, 10 P.3d at 731).
Further, when a defendant's statements are not the product of a
custodial interrogation, it need not be shown that the defendant
was advised of his or her Miranda rights and waived those rights,
in order for the statements to be admitted into evidence.               State
v. Pahio, 58 Haw. 323, 327, 568 P.2d 1200, 1204 (1977), abrogated
on other grounds by State v. Cabagbag, 127 Hawai#i 302, 277 P.3d
1027 (2012).
          HRS § 291-2 provides:
          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.

The supreme court in State v. Agard, 113 Hawai#i 321, 322, 151
P.3d 802, 803 (2007) stated:
          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)).
          At the hearing on Vasconcellos’s Motion to Suppress
Statements, Officer Borges testified that he had observed

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Vasconcellos make an improper left turn from a straight ahead
only lane and nearly strike a pedestrian in a marked crosswalk
with the cross signal, without stopping, swerving, or slowing.
Officer Borges then stated that upon stopping Vasconcellos’s
vehicle, he approached the vehicle and engaged Vasconcellos,
explaining his observations to Vasconcellos.     When Officer Borges
informed him of why he was stopped, Vasconcellos initially stated
that he saw the pedestrian and stopped.     Thereafter, Officer
Borges related to Vasconcellos that he did not observe him stop
and Vasconcellos then stated that he swerved or drove around and
let the pedestrian cross.   We conclude that at this initial point
of the stop, a person of reasonable caution would have been
warranted in believing that Vasconcellos had a conscious
awareness that his driving had posed a substantial and
unjustifiable risk to the safety of others and property, to wit,
the pedestrian.   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 Borges had probable cause to arrest
Vasconcellos for Reckless Driving at the point of stopping his
vehicle.
           Based on the totality of the circumstances, where
Officer Borges had probable cause to arrest Vasconcellos for
Reckless Driving and had testified that Vasconcellos was not free
to leave at this point, we conclude that Vasconcellos was in
custody for Reckless Driving.    See Kazanas, 138 Hawai#i at 35,
375 P.3d at 1273; Kaleohano, 99 Hawai#i at 377, 56 P.3d at 145.
Thus, Miranda warnings were warranted prior to any subsequent

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interrogation.   The district court did not err in determining
that Vasconcellos was in custody upon Officer Borges stopping his
vehicle.
           Notwithstanding the above, Officer Borges was not
required to provide Vasconcellos with Miranda warnings prior to
informing Vasconcellos of why he was stopped.     As we recently
held in State v. 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."   No. CAAP-XX-XXXXXXX, 2020 WL 1699907,
at *9 (Haw. App. Apr. 8, 2020) (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
and custody." (quoting United States v. Crisco, 725 F.2d 1228,
1232 (9th Cir. 1984))).    Officer Borges informing Vasconcellos of
why he was stopped did not amount to an "interrogation" and
Miranda warnings were not required.    The district court erred in
holding that there was an interrogation at this point and
suppressing the aforementioned statements Vasconcellos made in
response to being informed of the reason that he was stopped.
           During the exchange with Vasconcellos, Officer Borges
observed that Vasconcellos had bloodshot eyes, was speaking with
slurred speech, and had an odor of alcohol about him.      Thus,
Officer Borges's attention turned to whether Vasconcellos
committed the offense of OVUII.    The investigation for OVUII
constituted a separate, distinct, and unrelated investigation
from the initial traffic stop, requiring an independent
reasonable suspicion to be a valid detainment.     See Estabillio,
121 Hawai#i at 272-73, 218 P.3d at 760-61 (stating that an

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investigation for drug involvement constituted a separate,
distinct, and unrelated investigation from the initial stop for
traffic offenses, thus requiring an independent reasonable
suspicion to be a constitutional seizure).
          There was reasonable suspicion to believe that
Vasconcellos committed the offense of OVUII based upon Officer
Borges's observations of Vasconcellos's driving, his red and
bloodshot eyes, and the smell of alcohol about him.          See State v.
Barrickman, 95 Hawai#i 270, 274-77, 21 P.3d 475, 479-82 (App.
2001) (concluding that there was reasonable suspicion to believe
that the defendant was driving while intoxicated at the time the
investigative stop commenced because the defendant failed to
follow the instructions of the officer directing traffic and was
observed to have glassy eyes and alcohol on his breath).
Nonetheless, red and glassy eyes alone, and imperfect driving,
are insufficient to establish probable cause to arrest a person
for OVUII.   See Kaleohano, 99 Hawai#i at 377, 56 P.3d at 145
("Although these factors may give rise to a reasonable suspicion
that [a person] was driving while impaired, they do not amount to
probable cause for an arrest.").        In Kernan, the court noted:
          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.

75 Haw. at 38 n.23, 856 P.2d at 1226 n.23.        Thus, prior to asking
whether Vasconcellos wished to take the field sobriety test,
Vasconcellos's red and bloodshot eyes, slurred speech, and the
odor of alcohol about him did not provide Officer Borges with
probable cause for an OVUII arrest.        The district court therefore
erred in determining that there was probable cause to arrest
Vasconcellos for OVUII at this point.        However, as we previously


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stated, Vasconcellos was in custody for Reckless Driving and the
district court did not err in determining that he was in custody
and that Miranda warnings were warranted prior to any
interrogation.
            After observing Vasconcellos’s red and bloodshot eyes,
slurred speech, and odor of alcohol about him, Officer Borges
asked Vasconcellos to step out of his vehicle.       Vasconcellos then
exited the vehicle and Officer Borges asked him whether he would
be willing to participate in a field sobriety test.       Vasconcellos
responded to the effect of "please don't do this.       You're ruining
my life" and then later agreed to participate.       The district
court held that asking Vasconcellos if he would be willing to
participate in a field sobriety test constituted custodial
interrogation and suppressed Vasconcellos’s responses.       This was
in error.    In Pennsylvania v. Muniz, the Supreme Court determined
that a police officer's questioning of a defendant regarding
whether the defendant understood the field sobriety test
instructions and wished to submit to the test did not amount to
an "interrogation" because they were "limited and focused
inquiries [that] were necessarily 'attendant to' the legitimate
police procedure and were not likely to be perceived as calling
for any incriminating response."       496 U.S. 582, 605 (1990)
(citation omitted); see Innis, 446 U.S. at 301 (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").    Vasconcellos's responses to whether he would
participate in the test were attendant to legitimate police
procedures, and should not have been suppressed.
            Upon Vasconcellos's agreement to participate in the
field sobriety tests, Officer Borges asked him what are known as
medical rule-out questions.    Officer Borges testified that the
medical rule-out questions consisted of inquiring whether
Vasconcellos "had any physical defects or speech impediments, if
he's currently under the care of a doctor, an eye doctor, or a

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dentist, if he was diabetic or epileptic, if he was blind in
either eye, wearing any contacts, or taking any medications."
Vasconcellos replied in the negative to all of the medical rule-
out questions.     The district court suppressed Vasconcellos's
responses to the medical rule-out questions, finding that
Vasconcellos was in custody and that the questions would elicit
incriminating responses.       We agree with the district court.          The
medical rule-out questions amounted to an interrogation because
they
            required a testimonial response that disclosed facts
            relating to the offense of OVUII and that was reasonably
            likely to assist the police in determining whether [the
            suspect] was under the influence of an intoxicant by either
            admitting or denying there were other causes that could
            explain her actions. A negative response to all of the
            questions is testimonial, and combined with physical
            characteristics of impairment, supports an incriminating
            inference of impairment. Similarly, a positive response to
            whether a defendant is taking any medicines, in some
            instances, may constitute an incriminating statement.

Sagapolutele-Silva, No. CAAP-XX-XXXXXXX, 2020 WL 1699907, at *8;
see also Mathis v. United States, 391 U.S. 1, 2, 4-5 (1968).
Although Vasconcellos was not in custody for OVUII when the
medical rule-out questions were posed, he was in custody for
Reckless Driving.     As we determined in Sagapolutele-Silva, "the
failure to provide a Miranda warning when required for one crime
will taint a subsequent interrogation even if the interrogation
relates to a different crime for which Miranda warnings were not
yet required, if a defendant is still in custody."            Id. at *7
(citing People v. Bejasa, 205 Cal. App. 4th 26, 140 Cal. Rptr. 3d
80, 91 (2012)).     Accordingly, Vasconcellos was subjected to a
custodial interrogation without having first been given Miranda
warnings.    Thus, the district court did not err in suppressing
Vasconcellos’s responses to the medical rule-out questions.
            We next turn to the suppression of the results of the
field sobriety test.      "Field sobriety tests are designed and
administered to avoid the shortcomings of casual observation."
State v. Wyatt, 67 Haw. 293, 302, 687 P.2d 544, 551 (1984)


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(brackets and citations omitted).     Although field sobriety tests
may have a purpose of gathering evidence of a driver's criminal
conduct, "the privilege 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 [or her]."      Id.   In Wyatt,
the supreme court held that a suspect's performance on field
sobriety tests was an exhibition of physical characteristics of
coordination.   Id. at 303, 687 P.2d at 551.    The Wyatt court
further held that a suspect's performance on field sobriety tests
were neither communication nor testimony and therefore did not
implicate the suspect's right against self-incrimination.       Id. at
301-03, 687 P.2d at 550-51.    Applied here, the district court
therefore erred in suppressing Officer Borges's observations of
Vasconcellos's physical performance on the field sobriety test.
           As an alternative basis for the district court's
Judgment, Vasconcellos argues, based on State v. Tsujimura, 140
Hawai#i 299, 400 P.3d 500 (2017), that the right to remain silent
is triggered upon detainment as a result of an investigatory
stop, Miranda warnings are required at that time, and thus any
statements obtained thereafter without Miranda warnings and a
waiver of Miranda rights are subject to suppression.
Vasconcellos’s reliance upon Tsujimura is misplaced.      In
Tsujimura, the court noted that it is a "well established tenet
that a person being questioned by a law enforcement officer
during an investigatory stop 'is not obliged to respond.'"
Tsujimura, 140 Hawai#i at 313, 400 P.3d at 514 (quoting Berkemer
v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 82 L. Ed.2d 317
(1984)).   However, Tsujimura does not require a law enforcement
officer to advise a person of their right to remain silent
because they were detained as a result of an investigatory stop.
Rather, it prohibits pre-arrest silence from being used as
substantial proof of guilt at trial.     Tsujimura, 140 Hawai#i at
311-13, 400 P.3d at 512-14.

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          Based on the foregoing, the district court erred in
suppressing: (1) Vasconcellos's statements in response to Officer
Borges informing him of the reasons for the investigatory stop;
(2) Vasconcellos's responses to being asked whether he would
participate in the field sobriety test; and (3) the results of
the field sobriety test.    The district court did not err in
suppressing Vasconcellos's responses to the medical rule-out
questions.
          The Notice of Entry of Judgment and/or Order and
Plea/Judgment, filed on May 28, 2019, in the District Court of
the First Circuit, Honolulu Division, is vacated in part and
affirmed in part.    This case is remanded for further proceedings.
          DATED:    Honolulu, Hawai#i, June 5, 2020.


On the briefs:
                                      /s/ Katherine G. Leonard
Brian R. Vincent,                     Presiding Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
for Plaintiff-Appellant.              /s/ Derrick H. M. Chan
                                      Associate Judge
Alen M. Kaneshiro,
for Defendant-Appellee.
                                      /s/ Keith K. Hiraoka
                                      Associate Judge




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