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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0001017
                                                              25-MAY-2017
                                                              09:21 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAII

                                  ---o0o---


                           STATE OF HAWAII,
                    Respondent/Plaintiff-Appellant,

                                     vs.

                             RICK TRINQUE,
                    Petitioner/Defendant-Appellee,

                                     and

                             MILES MARTINEZ,
                                Defendant.


                             SCWC-12-0001017

          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-12-0001017; CR. NO. 12-1-0105)

                                 MAY 25, 2017

RECKTENWALD, C.J., McKENNA, POLLACK, AND WILSON, JJ., AND CIRCUIT
    COURT JUDGE CHANG, IN PLACE OF NAKAYAMA, J., UNAVAILABLE

                 OPINION OF THE COURT BY POLLACK, J.

                            I.    INTRODUCTION

          On March 19, 2009, Rick Trinque was arrested in a

pasture and handcuffed by the police who were conducting an
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investigation involving the growing of marijuana.           Prior to

apprising Trinque of his Miranda rights, police obtained two

statements from Trinque.      Later, at the police station, police

obtained a third statement from Trinque when he invoked his right

to counsel while being given Miranda warnings.          The Circuit Court

of the Fifth Circuit (circuit court) concluded that the first and

second statements had been unlawfully elicited from Trinque, as

they resulted from pre-Miranda custodial interrogation, and that

the third statement was a product of the two earlier illegally

obtained statements.     The circuit court accordingly excluded the

statements from being used as evidence at trial.           The State

appealed the circuit court’s decision regarding the second and

third statements.    The Intermediate Court of Appeals (ICA)

disagreed with the circuit court and vacated its ruling as to the

second and third statements.

            In his application for certiorari, Trinque contends that

the circuit court correctly ruled that the second and third

statements were obtained in violation of his constitutional rights

and that the ICA gravely erred in vacating the circuit court’s

decision.   For the reasons set forth below, we conclude that the

ICA erred in vacating the ruling of the circuit court.




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                              II.   BACKGROUND

                           A. Underlying arrest

            In the days prior to March 19, 2009, the Kauai Police

Department (KPD) received information that there was marijuana

growing in a 25-acre pasture in Kīlauea, Kauai, and initiated an

investigation.     On March 19, 2009, KPD officers were conducting

nighttime surveillance in the pasture when they encountered

Trinque, who was placed under arrest and immediately placed in

handcuffs by Officer Brian Silva (the case agent in charge of the

operation) while still in the pasture.1         Miles Martinez was also

arrested in the pasture.       Both Trinque and Martinez were ordered

to sit on rocks within the pasture while officers took pictures of

them and obtained their identification.          As Officer Silva and

another officer were escorting Trinque out of the pasture, one of

the officers asked Trinque how he came into the field.             Trinque

responded that “he came over the fence by the banana tree using a

ladder that was still located by the fence and that he was caught

red handed” (Statement 1).       Once out of the pasture, Trinque was

ordered by the officers to sit on a wooden bench.            Trinque

remained handcuffed.



      1
            Trinque was “at least one of the targets of [KPD’s] investigation.”
Lt. Richard Rosa stated that “[b]ecause of the briefing that we had prior [to
March 19] . . . we had the names of two of the suspects based on who lived
there and stuff, and the officers told me who they were.”



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             Officer Silva directed Lt. Richard Rosa to watch over

Trinque.     Lt. Rosa was the supervisor for the vice unit and a case

supervisor at that time.         That night, Lt. Rosa was dressed in

plain clothes, with his police badge around his neck.               Lt. Rosa

had never met Trinque before, but “he knew Rick Trinque by name”

because Trinque’s daughter, whom Lt. Rosa had previously assisted

in a case, had informed him that Trinque was her father.2               KPD

officers told Lt. Rosa who the two detained suspects were, and Lt.

Rosa knew that it was Trinque sitting on the wooden bench when he

approached.

             Lt. Rosa identified himself to Trinque as Lt. Rosa from

the Narcotic Unit of KPD, and he informed Trinque that he was the

officer who worked on his daughter’s case.            Lt. Rosa then told

Trinque “that if [Trinque] did not believe him, he could talk to

his daughter about it.”         In an apparent effort to emphasize his

trustworthiness, Lt. Rosa told Trinque that “he would not lie to

him.”     Next, he informed Trinque that he would not “jerk his

chain.”     And, to underscore this point, Lt. Rosa told Trinque that

“he would be completely honest with him.”            During these

statements, Trinque “sat there listening” and did not speak to Lt.

Rosa.     When Lt. Rosa “told Trinque to not make any statements


      2
            Prior to being assigned to the vice unit, Lt. Rosa was the district
commander in Hanalei when he “assisted” Trinque’s daughter with her case. Lt.
Rosa met Trinque’s daughter when she expressed to him that she was having
problems with persons who might have intended to assault her father.


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until [they] got back to Lihue where we could advise him of his

rights,”3 Trinque responded, “What for?             You caught us red handed,

there’s nothing left to say, times are hard and we needed the

money” (Statement 2).

               Soon after, Lt. Rosa and Officer Silva transported

Trinque to the Līhue police station, where he was booked and

placed in an interrogation room.              Both Lt. Rosa and Officer Silva

were present during Trinque’s interview in the interrogation room.

Trinque was informed of his constitutional rights via the KPD Form

364.       Officer Silva asked Trinque if he wanted an attorney, and

Trinque responded that he did.4           Officer Silva then asked Trinque


      3
            Lt. Rosa noted that there were other police officers around at the
time he approached Trinque and agreed that it was possible to have read Trinque
his rights at the scene.
       4
            Nowhere on the KPD 364 Form, entitled “Informing Persons Being
Interrogated of Their Constitutional Rights,” does it direct police officers to
ask whether a defendant wants an attorney. Specifically, No. 6 on the form
states, “Do you understand that you have the right to talk to a lawyer before
answering any questions and to have him or her present while I talk to you?”
Thus, the question asks whether the individual understands that he or she has a
right to have an attorney present, not whether he or she wants an attorney.

            On direct examination during the circuit court hearing, Officer
Silva testified as follows:

               Q:    Did Mr. Trinque respond when you asked him whether he
               wanted an attorney or not?
               A:    Yes.
               Q:    What was his reply?
               A:    He wanted to talk to an attorney.

On cross-examination, Officer Silva was less confident:

               Q:    . . . So at what point did you ask him if he wanted an
               attorney?
               A:    Um, he might have told me he wanted an attorney, and
               that was the end of the conversation.
                                                                  (continued . . .)

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whether or not he wanted to make a statement.5           Trinque replied

that he did not want to make a statement since “he got caught red-

handed and was going to jail anyway.”6         (Statement 3)     During the

approximately three hours following Trinque’s arrest, Lt. Rosa

remained at Trinque’s side from their initial contact, during

transport, and to Trinque’s placement in the interrogation room

where Statement 3 was obtained.

                       B. Circuit court proceedings

           On February 23, 2012, Trinque was charged by indictment

with Commercial Promotion of Marijuana in the First Degree, in

violation of Hawaii Revised Statutes (HRS) § 712-1249.4(1)(c)




(. . . continued)
            Q:    What do you mean he might have told you?
            A:    This happened almost four years ago. He might have
            told me he wanted an attorney as I’m going through the
            rights, and I said okay, fine. We’re not going through this.
     5
            The sequence of questions and answers between Officer Silva and
Trinque is unclear from the transcript of the hearing on the motions. However,
the transcript could be read to indicate that Officer Silva continued speaking
with Trinque after Trinque made clear that he wanted an attorney. We note
that, if this were the case, Officer Silva would have violated the well-
established rule that “once the right to counsel has been invoked all
questioning must cease.” State v. Mailo, 69 Haw. 51, 52, 731 P.2d 1264, 1266
(1987). It is not necessary to resolve this issue in light of our disposition
of this case.
     6
            Trinque’s interview by Officer Silva and Lt. Rosa in the
interrogation room was not audio or video recorded, despite officers having
access to a digital recorder. Officer Silva stated that Trinque’s interview
was not recorded because, at that time, KPD policy did not require officers to
do so. While Officer Silva took notes when interviewing Trinque, he shredded
them once he finished his report.



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(1993), and Unlawful Use of Drug Paraphernalia, in violation of

HRS § 329-43.5(a) (1993).7

          The State filed a Motion to Determine Voluntariness of

Statements, contending that Trinque made inculpatory statements

upon arrest and that the statements were admissible at trial.

Trinque filed a motion seeking to suppress Statements 1, 2, and 3

on the grounds that they were obtained in violation of his

constitutional rights under article I, sections 5 and 10 of the

Hawaii Constitution and the Fifth and Fourteenth Amendments to the

United States Constitution (Motion to Suppress Statements).

Trinque contended that he was subjected to pre-Miranda custodial

interrogation when he made Statements 1 and 2, in violation of his


     7
          HRS § 712-1249.4(1)(c) provides as follows:

          (1) A person commits the offense of commercial promotion of
          marijuana in the first degree if the person knowingly:

                . . . .

                (c) Possesses, cultivates, or has under the person’s
                    control one hundred or more marijuana plants . . . .

          The applicable version of HRS § 329-43.5(a) states the following:

                (a) It is unlawful for any person to use, or to possess
          with intent to use, drug paraphernalia to plant, propagate,
          cultivate, grow, harvest, manufacture, compound, convert,
          produce, process, prepare, test, analyze, pack, repack,
          store, contain, conceal, inject, ingest, inhale, or otherwise
          introduce into the human body a controlled substance in
          violation of this chapter. Any person who violates this
          section is guilty of a class C felony and upon conviction may
          be imprisoned pursuant to section 706-660 and, if appropriate
          as provided in section 706-641, fined pursuant to section
          706-640.

          Martinez was jointly indicted with Trinque upon the same charges.


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right against self-incrimination.         Trinque also argued that his

post-Miranda statement (Statement 3) should be suppressed as a

“fruit of the poisonous tree” because “the statement was made

under the taint of the two prior police illegalities.”

           In its response, the State argued that Trinque

“voluntarily made inculpatory statements upon arrest.”            The State

maintained that Statement 1 was a spontaneous statement and that

Statements 2 and 3 “were voluntary and not the result of KPD

coercion.”   Further, the State contended that Trinque’s statements

were independent of police questioning and that Trinque kept

talking even after he was advised not to make a statement until he

was taken to the station and given Miranda warnings.

           Following a hearing on the motions,8 the circuit court

issued its Findings of Fact, Conclusions of Law and Order Granting

Defendant’s Motion to Suppress Statements (Order Suppressing

Statements), in which it determined that, as to Statement 1,

Trinque was “in custody for purposes of Miranda” from the moment

he was placed in handcuffs in the pasture.          The court found that

either Officer Silva or the other officer escorting Trinque out of

the pasture specifically asked Trinque how he came into the field

and that the question prompted Trinque to respond that he “came

over the fence by the banana tree using a ladder that was still



    8
        The Honorable Kathleen N.A. Watanabe presided over the case.


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located by the fence and that he was caught red handed.”             The

circuit court concluded that “asking the defendant how he got into

the pasture was an illegal custodial interrogation that the

officer knew or should have known was reasonably likely to elicit

an incriminating response” and that the question did in fact

improperly elicit Statement 1.

            The circuit court further concluded that Statement 2 was

the product of an illegal, pre-Miranda custodial interrogation.

The court held that Lt. Rosa’s “unsolicited statements” to Trinque

amounted to “statements that were designed to garner the trust of

the defendant . . . and invite the defendant to open up.”             Thus,

the circuit court concluded that Lt. Rosa conducted an

unauthorized pre-Miranda interrogation in violation of Trinque’s

constitutional rights.      The circuit court stated that “there was

no legitimate reason” for Lt. Rosa to make these statements to

Trinque, including:

            telling [Trinque] that he wasn’t sure if [Trinque] knew who
            he was, but that he was the Officer who worked on [his]
            daughter’s case, that if Trinque did not believe him, [he]
            could talk to his daughter about it, that he would not lie to
            [Trinque], he would not “jerk his chain,” and that he would
            be completely honest with him.

The circuit court concluded that Lt. Rosa knew or should have

known that his statements would likely elicit an incriminating

response.    The court further held that Lt. Rosa’s statement--that

Trinque should not make a statement until he was taken to the

Līhue police station--was presupposition on Lt. Rosa’s part and

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that it “wrongly informed [Trinque] that his statement would be

taken once they read him his rights.”

           As to Statement 3, the circuit court concluded that it

“was a ‘fruit’ or an exploitation of the prior illegality of the

‘pre-interview’ conducted by [Lt.] Rosa.”          The court held that

Statement 3 was not sufficiently attenuated from Lt. Rosa’s

unauthorized, pre-Miranda interview for the taint of the prior

illegality to dissipate because (1) the same officer (Lt. Rosa)

remained with Trinque through the entire process; (2) Statement 3

came within hours of the pre-interview Miranda violation; and (3)

Statement 3, elicited post-Miranda, was in effect the same thing

Trinque said to Lt. Rosa (Statement 2).

           The circuit court therefore granted Trinque’s Motion to

Suppress Statements and issued an Order Suppressing Statements and

an Order Denying State of Hawaii’s Voluntariness of Statements.9

The State timely appealed from these orders.

                        C.    Appellate Proceedings

           The State raised two issues in its appeal: (1) whether

the trial court erred in concluding that Statement 2 was the

product of a custodial interrogation and in suppressing Statement


     9
            The circuit court’s Order Denying Voluntariness was predicated on
its suppression ruling in favor of Trinque: “The Court having taken judicial
notice of the files and records herein and having heard evidence and argument
in the matter, and having GRANTED [Trinque’s] Motion to Suppress Statements,
hereby ORDERS that the State’s Motion to Determine Voluntariness of Statements
is hereby DENIED.”


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2 on that basis; and (2) whether the trial court erred in

suppressing Statement 3 as the unlawful fruit of Statements 1 and

2.   The State did not challenge the suppression of Statement 1.

           In a published opinion, the ICA held that the circuit

court erred in suppressing Statement 2 on Miranda grounds because

Statement 2 was made when Lt. Rosa told Trinque that he should not

make any statements until he had been advised of his

constitutional rights.      State v. Trinque, 137 Hawaii 130, 133, 366

P.3d 186, 189 (App. 2016), cert. granted, No. SCWC-12-0001017,

2016 WL 3129189 (Haw. June 2, 2016).         The ICA noted that “there

was no basis for the circuit court to conclude that [Lt.] Rosa

should have known that his words or actions in telling Trinque not

to speak were reasonably likely to elicit an incriminating

response.”    Id.

           Further, the ICA concluded that neither Statement 2 nor

Statement 3 was subject to suppression as an unlawful fruit of

previous statements.      Id. at 134, 366 P.3d at 190.        The ICA held

that Statement 2 was not an unlawful fruit of Statement 1 because

the police did not exploit Statement 1 to obtain Statement 2.                Id.

The ICA also held that Statement 3 was not subject to suppression

as an unlawful fruit of Statement 2 because Statement 2 was not

the product of interrogation.        Id.   In addition, the ICA

determined that Statement 3 was not a fruit of Statement 1 because

Trinque made Statement 3 post-Miranda, police did not exploit

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Statement 1 to obtain Statement 3, and Statement 3 was a non-

responsive reply to the question asked.         Id.

           The ICA vacated the circuit court’s Order Suppressing

Statements and Order Denying Voluntariness of Statements, and the

case was remanded to the circuit court for further proceedings.

Id. at 135, 366 P.3d at 191.       On certiorari, Trinque presents the

following question: whether the ICA gravely erred in vacating the

circuit court’s decision suppressing Statements 2 and 3 to the

police.

                       III.    STANDARDS OF REVIEW

           This court reviews a trial court’s factual findings

under the clearly erroneous standard.        State v. Romano, 114 Hawaii

1, 8, 155 P.3d 1102, 1109 (2007).

           A finding of fact is clearly erroneous when, despite evidence
           to support the finding, the appellate court is left with the
           definite and firm conviction in reviewing the entire evidence
           that a mistake has been committed. A finding of fact is also
           clearly erroneous when the record lacks substantial evidence
           to support the finding. We have defined substantial evidence
           as credible evidence which is of sufficient quality and
           probative value to enable a person of reasonable caution to
           support a conclusion.

Lambert v. Waha, 137 Hawaii 423, 431, 375 P.3d 202, 210 (2016)

(quoting Bremer v. Weeks, 104 Hawaii 43, 51, 85 P.3d 150, 158

(2004)).   A trial court’s conclusions of law are reviewed under

the right/wrong standard.      State v. Joseph, 109 Hawaii 482, 493,

128 P.3d 795, 806 (2006).      Where a conclusion of law “presents

mixed questions of fact and law,” it “is reviewed under the


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clearly erroneous standard because the court’s conclusions are

dependent upon the facts and circumstances of each individual

case.”     State v. Furutani, 76 Hawaii 172, 180, 873 P.2d 51, 59

(1994) (quoting AIG Haw. Ins. Co. v. Estate of Caraang, 74 Haw.

620, 629, 851 P.2d 321, 326 (1993)).

                               IV.   DISCUSSION

             The privilege against self-incrimination guaranteed by

article I, section 10 of the Hawaii Constitution requires that

Miranda warnings be given to an accused in order for statements

obtained during custodial interrogation to be admissible at

trial.10     State v. Joseph, 109 Hawaii 482, 493–94, 128 P.3d 795,

806–07 (2006).      It is well settled that Miranda is

             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 his
             or her criminal trial.

State v. Ketchum, 97 Hawaii 107, 117, 34 P.3d 1006, 1016 (2001).

Thus, unless Miranda warnings are given, statements made by the

accused that result from custodial interrogation, along with the

fruits of such statements, “may not be used either as direct

evidence in the prosecutor’s case in chief or to impeach the



     10
            The relevant portion of article I, section 10 that embodies the
Miranda requirement states that “[n]o person shall be . . . compelled in any
criminal case to be a witness against oneself.” Haw. Const. art. I, § 10.


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defendant’s credibility during rebuttal or cross-examination.”

Joseph, 109 Hawaii at 493–94, 128 P.3d at 806–07 (quoting State v.

Santiago, 53 Haw. 254, 265–66, 492 P.2d 657, 664 (1971)); see

State v. Pebria, 85 Hawaii 171, 174–75, 938 P.2d 1190, 1193–94

(1997).11

            The illegality in obtaining Statement 1 in this case is

undisputed, so two issues remain for this court’s resolution: (1)

whether Statement 2 was obtained as a result of pre-Miranda

custodial interrogation and in violation of Trinque’s right to

remain silent and (2) whether Statement 3 is a fruit of Statement

1, Statement 2, or both.

  A. Whether Statement 2 was obtained in violation of Trinque’s
  right to remain silent as a result of “un-Mirandized custodial
                          interrogation”

            Trinque argues that the circuit court correctly

suppressed Statement 2 because Lt. Rosa subjected him to custodial

interrogation prior to advising him of his Miranda rights.

Trinque contends that, while Lt. Rosa did not expressly question

him, Lt. Rosa’s statements “constituted custodial interrogation as

they were designed to invoke an incriminating response.”             Trinque


     11
            This court decreed that Miranda protections “have an independent
source in the Hawaii Constitution’s privilege against self-incrimination” in
Santiago, 53 Haw. at 266, 492 P.2d at 664. In that case, not only did this
court incorporate Miranda into the Hawaii Constitution, the court also
broadened Miranda protections based on the Hawaii Constitution. See id.
(disagreeing with the U.S. Supreme Court’s holding in Harris v. New York, 401
U.S. 222 (1971), and concluding that statements elicited through pre-Miranda
custodial interrogation may not be used at trial for impeachment purposes).


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maintains that Lt. Rosa’s statements were made for “no legitimate

reason . . . other than to ingratiate himself to Trinque” and

“entice him into making a statement.”

          Pursuant to article I, section 10 of the Hawaii

Constitution, a statement made before the defendant is apprised of

his or her Miranda rights is not constitutionally elicited if it

is established that the “statement was the result of (1)

‘interrogation’ that occurred while he or she was (2) ‘in

custody.’”   State v. Kazanas, 138 Hawaii 23, 35, 375 P.3d 1261,

1273 (2016) (quoting Ketchum, 97 Hawaii at 118, 34 P.3d at 1017).

In this case, there is no dispute that Trinque was in custody when

Lt. Rosa elicited Statement 2 from Trinque, as Trinque was already

arrested and handcuffed.      See State v. Eli, 126 Hawaii 510, 521–

22, 273 P.3d 1196, 1207–08 (2012) (concluding that the defendant

was deprived of his freedom in a significant way after he had been

placed under arrest); accord Kazanas, 138 Hawaii at 35, 375 P.3d

at 1273; State v. Amorin, 61 Haw. 356, 360, 604 P.2d 45, 48

(1979).   Thus, the decisive issue is whether Lt. Rosa’s actions

constituted “interrogation” under article I, section 10.

          As previously explained by this court, “interrogation”

encompasses “not only . . . express questioning, but also . . .

any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should


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know are reasonably likely to elicit an incriminating response

from the suspect.”      State v. Joseph, 109 Hawaii 482, 495, 128 P.3d

795, 808 (2006) (quoting State v. Jenkins, 1 Haw. App. 430, 437-

38, 620 P.2d 263, 269 (1980)).

            The latter portion of the definition focuses primarily upon
            the perceptions of the suspect, rather than the intent of the
            police. This focus reflects the fact that the Miranda
            safeguards were designed to vest a suspect in custody with an
            added measure of protection against coercive police
            practices, without regard to objective proof of the
            underlying intent of the police. A practice that the police
            should know is reasonably likely to evoke an incriminating
            response from a suspect thus amounts to interrogation.

Id.; accord Kazanas, 138 Hawaii at 39, 375 P.3d at 1277.

            Thus, “interrogation” is “any practice reasonably likely

to invoke an incriminating response without regard to objective

evidence of the intent of the police.”          Joseph, 109 Hawaii at 495,

128 P.3d at 808 (emphasis added).12        “An incriminating response’

refers to both inculpatory and exculpatory responses.”             Id.

(citing State v. Wallace, 105 Hawaii 131, 137, 94 P.3d 1275, 1281

(2004)).

            There are several important considerations in this

court’s definition: “interrogation” under Miranda refers to (1)

      12
            A “practice” includes any method or procedure that law enforcement
officers use in the course of interacting with individuals in custody,
regardless of whether such method or procedure is officially approved by the
law enforcement department with which the officers are employed. See, e.g.,
Joseph, 109 Hawaii at 495, 128 P.3d at 808 (pre-interview for the purpose of
obtaining a statement); Kazanas, 138 Hawaii at 40, 375 P.3d at 1278 (asking the
defendant in the police department’s private room in the hospital how his night
was going); Eli, 126 Hawaii at 522–23, 273 P.3d at 1208–09 (officer “asking
Defendant for his side of the story and indicating that it was his chance to
give that story”).


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any words, actions, or practice on the part of the police, not

only express questioning, (2) other than those normally attendant

to arrest and custody, and (3) that the police should know is

reasonably likely to invoke an incriminating response.

            In this case, Trinque was arrested in the late evening

in an open pasture.       Upon his arrest, police handcuffed Trinque,

escorted him from the pasture, and then ordered him to sit on a

wooden bench while still handcuffed.          Lt. Rosa approached Trinque

and identified himself as Lt. Rosa from the Narcotic Unit of KPD.

Lt. Rosa then explained to Trinque that he was the police officer

who had worked on Trinque’s daughter’s case.            Lt. Rosa told

Trinque “that if [Trinque] did not believe him, he could talk to

his daughter about it.”        Lt. Rosa then continued with trust-

building statements.       He told Trinque that he would not lie to

him.    He advised Trinque that he “wouldn’t jerk his chain.”

Finally, Lt. Rosa informed Trinque that “he would be completely

honest” with him.      Only after giving Trinque all of these personal

assurances regarding his trustworthiness did Lt. Rosa tell Trinque

not to make any more statements until he was taken to the police

station in Līhue.      Trinque responded, “What for?        You caught us

red-handed; times are hard and we needed the money.”

            While Lt. Rosa’s introduction of himself to Trinque as a

police officer may have been normal procedure that typically

attends arrests, all of the other words and actions that Lt. Rosa

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directed to Trinque cannot be characterized as anything other than

an attempt to erode Trinque’s guard so that Trinque would freely

talk in a manner that would incriminate himself.              As aptly

determined by the circuit court, Lt. Rosa’s words and conduct had

“no legitimate reason” and “were designed to garner the trust of

the defendant, invite the defendant to be honest . . ., and invite

the defendant to open up.”         By stating that he helped Trinque’s

daughter in a previous matter, Lt. Rosa’s words may have been

reasonably understood by Trinque as an offer of similar assistance

or at least as an assurance that Lt. Rosa was an ally when in fact

he was in an adversarial position.           See Kazanas, 138 Hawaii at 40,

375 P.3d at 1278 (reasoning that the police officer is part “of a

system that was adversarial to” the defendant, such that the

police officer engaging in a conversation with an arrestee “could

not be ‘solely in [the arrestee’s] best interest’”).               Couple this

with Lt. Rosa’s statement that he would be honest and not lie to

Trinque and that he would not “jerk [Trinque’s] chain” and it is

readily apparent that the circuit court did not clearly err in

finding that Lt. Rosa was attempting to garner Trinque’s trust so

that Trinque would open up.13



        13
              The ICA stated that it is unclear why it would be improper for Lt.
Rosa   “to inform Trinque that he had worked on Trinque’s daughter’s case and to
tell   Trinque that he would not lie to Trinque and would be completely honest
with   Trinque” since this was simply an “apparent attempt to develop rapport
with   Trinque.” State v. Trinque, 137 Hawaii 130, 133, 366 P.3d 186, 189 (App.
                                                                 (continued . . .)

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           Although Lt. Rosa testified that his intent in

initiating the conversation with Trinque was merely to identify

himself as a police officer, as he was unshaven and in civilian

clothing, Lt. Rosa’s intent is not determinative in analyzing

whether his words and conduct amounted to interrogation.             Joseph,

109 Hawaii at 495, 128 P.3d at 808 (stating that whether an

interrogation had transpired primarily focuses on the perceptions

of the defendant); Kazanas, 138 Hawaii at 39—40, 375 P.3d at 1277—

78 (noting that a police officer’s “subjective intent” may not be

used to excuse conduct that reasonably could have elicited an

incriminating response from the defendant).14

           Indeed, the circuit court firmly rejected Lt. Rosa’s

explanation of his motive, and the court did not clearly err in

this regard.    Not only was that court in the best position to

evaluate credibility, but the circumstances plainly contradict Lt.

Rosa’s explanation.      Lt. Rosa was wearing a police badge, and

(. . . continued)
2016), cert. granted, No. SCWC-12-0001017, 2016 WL 3129189 (Haw. June 2, 2016).
However, Lt. Rosa’s repeated personal assurances to Trinque, including
references to Trinque’s daughter, were, as determined by the circuit court,
intended to earn Trinque’s trust, invited Trinque to be honest and to open up,
and were reasonably likely to elicit an incriminating statement from Trinque.
     14
            Intent of police officer “may be relevant where, for example, ‘a
police practice is designed to elicit an incriminating response from the
accused,’ as it would be ‘unlikely that the practice will not also be one which
the police should have known was reasonably likely to have that effect.’”
Kazanas, 138 Hawaii at 39–40, 375 P.3d at 1277–78 (quoting Rhode Island v.
Innis, 446 U.S. 291, 301 n.7 (1980)). Thus, while police intent may not be
used to excuse conduct that reasonably could have elicited an incriminating
response, it may be used as “evidence that the police know that they have
designed a practice reasonably meant to elicit incriminating responses”--that
is, a practice amounting to interrogation. Id.


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Trinque and Martinez were both under arrest and handcuffed.

Several other officers were in the area.         If Lt. Rosa’s sole

intention was to identify himself as a police officer, he would

have had to do no more than show Trinque his badge and identify

himself in order to establish his status as a police officer.               If

Lt. Rosa merely intended to introduce himself to Trinque, then

there was no legitimate reason for him to say that he assisted

Trinque’s daughter in a previous matter, that he would be honest

and truthful to Trinque, and that he would not “jerk [Trinque’s]

chain.”

          In addition, Lt. Rosa’s statement to Trinque to not make

any more statements until he was taken to the police station in

Līhue was inaccurate--for Trinque was not required to make a

statement even after he had been advised of his constitutional

rights--and Trinque may have reasonably been given the impression

that he might as well speak to Lt. Rosa then and there, since he

would be making a statement at the station anyway.           Essentially,

Lt. Rosa was implicitly inviting Trinque to speak since he (Lt.

Rosa) would be honest, helpful, and truthful while another police

officer may or may not be.      Under the circumstances of this case,

where Lt. Rosa ingratiated himself to Trinque and implied that he

was someone who might be able to provide some form of assistance,

the wording of Lt. Rosa’s flawed advisory (“to not make any more

statements until he was taken to the police station”) was

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reasonably likely to elicit Statement 3 (“What for?            You caught us

red-handed; times are hard and we needed the money.”).             Indeed,

Trinque’s reply (“What for?”) was directly responsive to Lt.

Rosa’s advisory.15     Alternatively, Lt. Rosa’s words could

objectively be viewed as an attempt to establish himself as a

confidante, off the record, so that when it became time to provide

the Miranda warnings, Trinque would trust Lt. Rosa as someone who

would not pull his chain and thus making it more likely that

Trinque would waive his Miranda rights.

           The State relies on State v. Ikaika, 67 Haw. 563, 698

P.2d 281 (1985), in arguing that Lt. Rosa’s words and conduct were

a mere pleasantry that did not amount to interrogation.             The

defendant in Ikaika confessed to a police officer, who was

acquainted with the defendant, after the police officer asked,

“What’s happening?      Must be heavy stuff for two detectives to

bring you down here?”      Id. at 565, 698 P.2d at 283.        This court

held that the police officer’s statement was a mere “pleasantry”

not amounting to interrogation and that the defendant’s


     15
            The ICA concluded that Lt. Rosa’s statement was entirely
appropriate, reasoning that “[i]t is difficult to see how telling a defendant
not to make a statement can constitute ‘interrogation.’” Trinque, 137 Hawaii
at 133, 366 P.3d at 189. However, Lt. Rosa’s defective advisory may not be
viewed in isolation; it followed a series of statements that the circuit court
correctly viewed as having no legitimate reason and was designed to garner
Trinque’s trust so that he would open up. Viewing all of these statements in
conjunction with the incorrectly stated advisory, Lt. Rosa’s words and actions
were reasonably likely to elicit, and did elicit, an incriminating response
from Trinque.



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“confession was of the nature of an unsolicited, spontaneous

statement made in the absence of any police questioning.”              Id. at

567, 698 P.2d at 285.      Ikaika is inapposite for the reasons

enumerated in Kazanas.16

           As explained by the Kazanas court, the police officer

and the defendant in Ikaika were previously acquainted, and the

police officer was unaware of the circumstances surrounding the

defendant’s arrest.      See Kazanas, 138 Hawaii at 38, 375 P.3d at

1276; Ikaika, 67 Haw. at 565, 698 P.2d at 283.           Thus, in Ikaika,

the police officer’s words reasonably could be characterized and

perceived by the defendant as a pleasantry not likely to elicit an

incriminating response.       Kazanas, 138 Hawaii at 38, 375 P.3d at

1276; Ikaika, 67 Haw. at 567, 698 P.2d at 284–85 (reasoning that,

under the facts of the case, the police officer could not “have or

should [not] have reasonably foreseen that his words or actions

would elicit an incriminating response from the Defendant” and

that, “[a]t most, [the police officer] could have expected that

the Defendant respond to his pleasantry by informing him of the

reasons for the Defendant’s being booked and the case he was

involved in”).


     16
            The issue in Kazanas was whether the defendant, post-arrest, should
have been advised of his Miranda rights before the police officer engaged him
in small talk while they were inside HPD’s private room at a hospital--a
conversation that then resulted in the defendant’s utterance of an
incriminating statement. Kazanas, 138 Hawaii at 26, 40, 375 P.3d at 1264,
1278.


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          In this case, as in Kazanas, Lt. Rosa and Trinque were

not previously acquainted; in fact, the night of Trinque’s arrest

was the first time that Lt. Rosa met him.         See Kazanas, 138 Hawaii

at 38, 375 P.3d at 1276.      In addition, just like the police

officer in Kazanas, Lt. Rosa knew the circumstances behind

Trinque’s arrest since he was previously briefed on the matter.

See id.   Thus, when Lt. Rosa stated that he assisted Trinque’s

daughter on a previous case, that he would be honest and not lie

to Trinque, and that he would not “jerk [Trinque’s] chain,” Lt.

Rosa’s statements deliberately ingratiated himself to Trinque and

cannot be taken as “a mere pleasantry.”         See id.

          It is also noted that the police officer’s conduct in

Kazanas that this court held as constituting interrogation was

less egregious than Lt. Rosa’s conduct in this case.            In Kazanas,

the police officer did not guarantee to the defendant that she

would be honest and truthful and did not ingratiate herself to the

defendant or imply that she may be able to offer some assistance

for the defendant’s benefit; the police officer in Kazanas solely

asked a question whose answer she already knew and that,

objectively viewed, was reasonably likely to evoke an

incriminating response.      Id. at 26, 375 P.3d at 1264.        Here, Lt.

Rosa expressly claimed that he would be honest and truthful and

that he would not mislead Trinque.        And by stating that he helped

Trinque’s daughter in the past, Lt. Rosa at least intimated that

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he was a friendly party, that he may be able to similarly assist

Trinque, and that he should not be viewed as an adversary.              See

id. at 40, 375 P.3d at 1278.

            In summary, Trinque was in custody when the exchange

with Lt. Rosa occurred because he was handcuffed, and Lt. Rosa’s

words or actions were reasonably likely to elicit an incriminating

response from Trinque, id., because (1) Lt. Rosa stated that

Trinque could trust him, that he would not mislead Trinque, and

that he would be honest; (2) Lt. Rosa intimated that he was a

friendly party given that he had previously assisted Trinque’s

daughter in another case; (3) Lt. Rosa’s ingratiating words and

actions towards Trinque had no legitimate reason other than to

invoke Trinque’s trust and to induce him to open up; and (4) Lt.

Rosa misinformed Trinque of his constitutional rights.

Accordingly, Statement 2 was elicited by an unlawful, pre-Miranda

custodial interrogation, and therefore, the circuit court did not

clearly err in suppressing this statement pursuant to article I,

section 10 of the Hawaii Constitution.         The ICA erred in

concluding otherwise.17


      17
            Trinque also argues that Statement 2 was a “fruit of the poisonous
tree” because Trinque’s statement to Officer Silva (Statement 1) was illegally
obtained. The circuit court suppressed Statement 2 based on the conclusion
that it was elicited through an unlawful, pre-Miranda custodial interrogation.
The circuit court did not address whether Statement 2 should be suppressed as
an illegal fruit of Statement 1. The ICA ruled that Statement 2 should not
have been suppressed for two reasons: because it was not a product of an
illegal interrogation and because it was not an illegal fruit of Statement 1.
                                                               (continued . . .)

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  B.   Whether Statement 3 was tainted by Statements 1 and 2 under
             the “fruit of the poisonous tree” doctrine

            Trinque argues that Statement 3 was correctly suppressed

by the circuit court as a “fruit of the poisonous tree” of the

unlawfully obtained statement he made to Officer Silva (Statement

1) because Statement 3 was made only a few hours after Statement 1

and there was a direct connection between Statement 1 and

Statement 3.     In addition, Trinque contends that Statement 3 is a

fruit of Statement 2 because Statement 3 was made within hours

after Statement 2 and was a direct result of Lt. Rosa’s unlawful,

pre-Miranda interrogation.         The ICA ruled that Statement 3 was not

subject to suppression as the unlawful fruit of Statement 1 or

Statement 2.

            “[T]he ‘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 Hawaii 462, 475, 946 P.2d 32, 45 (1997) (quoting

State v. Medeiros, 4 Haw. App. 248, 251 n.4, 665 P.2d 181, 184 n.4

(1983)).    “Under the fruit of the poisonous tree doctrine,

[a]dmissibility is determined by ascertaining whether the evidence

objected to as being ‘fruit’ was discovered or became known by the


(. . . continued)
Because we conclude that   Statement 2 was a product of an unlawful, pre-Miranda
custodial interrogation,   we need not reach the issue of whether Statement 2 is
a fruit of Statement 1.    However, our disposition should not be viewed as an
endorsement of the ICA’s   resolution of this issue.


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exploitation of the prior illegality or by other means

sufficiently distinguished as to purge the later evidence of the

initial taint.”     State v. Poaipuni, 98 Hawaii 387, 392–93, 49 P.3d

353, 358–59 (2002) (alteration in original) (quoting Fukusaku, 85

Hawaii at 475, 946 P.2d at 45).

           Where the government proves that the evidence was discovered
           through information from an independent source or where the
           connection between the illegal acts and the discovery of the
           evidence is so attenuated that the taint has been dissipated,
           the evidence is not a ‘fruit’ and, therefore, is admissible.
           . . .

Id. (quoting Fukusaku, 85 Hawaii at 475, 946 P.2d at 45).18

           “In other words, the ultimate question that the fruit of

the poisonous tree doctrine poses is as follows: Disregarding the

prior illegality, would the police nevertheless have discovered

the evidence?”     Id. at 393, 49 P.3d at 359.        As applied to this

case, the question posed is as follows: Would the police have

obtained Statement 3 had they not violated Trinque’s

constitutional rights in obtaining Statements 1 and 2.

           Accordingly, the State’s burden is to demonstrate that

Statement 3 is not a benefit gained or an advantage derived by the

police from the prior illegality or that the subsequent statement



     18
            The Poaipuni court noted that, “[a]lthough we have characterized
the independent source doctrine as an ‘exception’ to the exclusionary rule, it
is, in essence, simply a corollary of the fruit of the poisonous tree
doctrine.” Poaipuni, 98 Hawaii at 393 n.6, 49 P.3d at 359 n.6. That is, if a
confession or other evidence has an independent source, then it is not a fruit
of the poisonous tree. Id.



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has become sufficiently attenuated from the initial illegality so

as to purge the taint.     See State v. Eli, 126 Hawaii 510, 524, 273

P.3d 1196, 1210 (2012) (reasoning that the State must demonstrate

that the subsequent statement or confession was not predicated on

the initial illegality); State v. Kitashiro, 48 Haw. 204, 218—22,

397 P.2d 558, 566—68 (1964) (holding that the State must prove

that the illegal search did not “induce” the defendant’s

subsequent confession).

           Hawaii appellate courts have previously pronounced that

whether a confession is sufficiently attenuated from the

illegality depends on the facts of a particular case, and factors

relevant to the analysis include (1) the temporal proximity

between the official misconduct and the subsequently procured

statement or evidence, (2) the presence of intervening

circumstances, and (3) the purpose and flagrancy of the official

misconduct.   See Eli, 126 Hawaii at 524, 273 P.3d at 1210; State

v. Mariano, 114 Hawaii 271, 281, 160 P.3d 1258, 1268 (App.

2007).19

           In determining what constitutes exploitation that taints

subsequently obtained evidence, previous “fruit of the poisonous

tree” cases decided by this court are instructive.           In State v.

Joseph, this court held that a previous illegality was exploited

     19
           See also Brown v. Illinois, 422 U.S. 590, 603–04 (1975).


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to elicit a statement or confession where the defendant, post-

Miranda, “was subsequently questioned on the same matter in order

that he would repeat his earlier[, illegally obtained] statement.”

109 Hawaii 482, 499, 128 P.3d 795, 812 (2006).            In Poaipuni, this

court held that the physical evidence was inadmissible because it

“came to light only as a result of the exploitation of the

previous illegality, i.e., the execution of the defective search

warrant.”   Poaipuni, 98 Hawaii at 393, 49 P.3d at 359.           As to the

subsequent confession, the Poaipuni court explained that it was

also tainted by the unlawfully obtained physical evidence because,

had the physical evidence not been discovered, the officer would

not have asked the question that resulted in the defendant’s

confession.   Id. at 394, 49 P.3d at 360.

            In Eli, this court explained that the defendant’s

“purported ‘waiver’ of his right to remain silent, made after

Miranda warnings, was directly ‘predicated’ on his agreement, pre-

Miranda, to make a statement,” an agreement that he made without

being apprised of his right to remain silent.          Eli, 126 Hawaii at

524, 273 P.3d at 1210.     Under these circumstances, the court held

that “the Mirandized statement was obtained by exploiting the

illegality of the pre-interview procedure.”          Id.    That is, the

advantage derived from the improper police pre-interview procedure




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played a role in the statement obtained despite the intervention

of properly administered Miranda warnings.

          The common thread that unifies these cases is that the

prior illegality contributed in the subsequent obtainment of

evidence, statements, or confessions.        Viewed another way, these

cases involved the situation in which the State failed to

demonstrate that the subsequently obtained evidence, statements,

or confessions would have been discovered even in the absence of

the prior illegality.     That is, the State was unable to meet its

burden of showing that the discovery of the challenged evidence

was not a benefit derived from the prior illegality.

          In this case, the circuit court held that Statement 3

was an exploitation of the prior illegality of Lt. Rosa’s “pre-

interview” and, thus, inadmissible as evidence under “the fruit of

the poisonous tree” doctrine.       The circuit court concluded that

the State failed to demonstrate that the statement was

“sufficiently attenuated” from the illegally obtained Statements 1

and 2 to dissipate the taint of the police officers’ Miranda

violation.   The circuit court cited three reasons: (1) the same

officer, Lt. Rosa, remained with Trinque through the entire

process; (2) Statement 3 came within hours after Lt. Rosa’s “pre-

interview” Miranda violation; and (3) Statement 3 was “in effect

the same thing [Trinque] said to [Lt.] Rosa pre-Miranda.”



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          The circuit court’s ruling--that Statement 3 was a fruit

of Statements 1 and 2--is not clearly erroneous and supported by

the State’s failure to introduce adequate evidence tending to

demonstrate that Statement 3 would still have been obtained had

the previous illegality that resulted in the utterance of

Statements 1 and 2 not occurred.       The State does not discharge its

burden of showing attenuation by relying on “surmise and

inference.”   Kitashiro, 48 Haw. at 222, 397 P.2d at 568

(explaining that evidence showing that there was “an independent

origin [for] the confession was . . . necessary in order for the

trial court to exercise its fact-finding prerogative in respect of

the contention that the confession was tainted”); State v. Pauu,

72 Haw. 505, 511, 824 P.2d 833, 837 (1992) (holding that “[t]he

State’s argument [was] not based on any evidence but is merely

surmise and speculative inference,” such “that the State ha[d]

failed to meet its burden of showing that the taint of the prior

illegal search had been dissipated or that there was an

independent source which induced [the defendant] to waive his

constitutional rights”).      In addition, the State did not

sufficiently establish an “independent origin” for Statement 3.

See Kitashiro, 48 Haw. at 221–22, 397 P.2d at 567–68 (holding that

the confession was a fruit of the illegal search in part because

the State failed to establish by substantial evidence that the

confession had an independent source).

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            The circuit court’s determination that Statement 3 was

not sufficiently attenuated from Statements 1 and 2 is also

supported by the record and, hence, not clearly erroneous.

Statement 3 was made within approximately three hours after

Statements 1 and 2 and, contrary to the State’s assertion, the

fact that Statement 3 was made in a different location does not

demonstrate sufficient attenuation.        Cf. id. at 218, 397 P.2d at

566 (initial illegality and subsequent confession not sufficiently

attenuated when, among other things, only three hours separated

the two).

            The circuit court’s further determination that there

were no intervening circumstances that sufficiently attenuated

Statement 3 from Statements 1 and 2 so as to purge the taint is

also not clearly erroneous.      As stated by the court, Lt. Rosa, who

unlawfully elicited Statement 2 from Trinque, was with Trinque

while he was transported to Līhue.       Additionally, Lt. Rosa and

Officer Silva, the latter of whom was involved in the illegal

procurement of Statement 1, were both present during the

advisement of Miranda rights that resulted in Trinque uttering

Statement 3.    Cf. Joseph, 109 Hawaii at 499, 128 P.3d at 812

(holding that there was lack of attenuation between the illegal

pre-interview and the post-interview partly because the post-

interview “was conducted by the same two detectives in the same

interrogation room with no lapse in time between it and the pre-

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interview”); Eli, 126 Hawaii at 524–25, 273 P.3d at 1210–11

(holding that there was lack of attenuation because “[b]oth the

pre-interview and post-Miranda interview were conducted by the

same detective”).     Given that Officer Silva was present when

Trinque uttered Statement 1, and because Lt. Rosa was the officer

who procured Statement 2, Trinque was not in a neutral position to

contradict or recant these earlier statements.           See Kitashiro, 48

Haw. at 218, 397 P.2d at 566 (explaining that the police used

illegally seized evidence “to instill in defendant a realization

of the hopelessness of his situation”); cf. Pauu, 72 Haw. at 510,

824 P.2d at 836 (reasoning that the defendant had no choice but to

confess because the police already had the evidence to convict him

after illegally searching the defendant’s bag and that, therefore,

the confession was a fruit of the illegal search).20            Also notable

is the fact that Statement 3 was made without the benefit of

counsel or after Trinque had an opportunity to speak with family

or friends.    See Medeiros, 4 Haw. App. at 252-53, 665 P.2d at 184-




     20
            The State contends that the hopelessness that Trinque felt, which
led to Statement 3, was the result of his being caught by the police officers
in the marijuana patch and not at all related to the illegal conduct of Lt.
Rosa and Officer Silva. However, this assertion as to the source of any
hopelessness appears to be based on supposition. The circuit court rejected
the State’s contentions concerning sufficient attenuation of Statement 3 from
the taint of Statements 1 and 2, and, based on the evidence in the record, that
finding is not clearly erroneous. Cf. Pauu, 72 Haw. at 511, 824 P.2d at 837
(holding that arguments regarding the sufficient attenuation to dissipate the
taint of a prior illegality must be supported by evidence).



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85 (noting that the opportunity to speak with counsel or family or

friends is a relevant consideration in determining taint).

           Contrary to the ICA’s reasoning and the State’s

argument, the fact that Statements 1 and 2 were not referenced

when Statement 3 was elicited is not sufficient to discharge the

State’s burden of demonstrating that Statement 3 was not a benefit

gained by the police from Statements 1 or 2.           Although this court

has held that express invocation of the product of an initial

illegality in order to elicit a subsequent incriminating statement

is sufficient to show that the subsequent statement is tainted,

see, e.g., Eli, 126 Hawaii at 524, 273 P.3d at 1210, the fact that

no reference is made to the product of the initial illegality does

not establish that the subsequent statement is not tainted.21                If

non-reference were sufficient to disprove taint, police officers

could violate with impunity a defendant’s constitutional rights to

obtain a confession.      For example, after obtaining a confession

during a pre-Miranda custodial interrogation, police officers

could apprise the defendant of his or her constitutional rights

and then refrain from mentioning the previous confession so that

all post-Miranda statements can be freely admitted into evidence.

     21
            Further, as explained supra, Eli, Joseph, and Poaipuni essentially
were cases in which the State failed to meet its burden of proving that the
prior illegality did not contribute to the subsequent discovery of the
challenged evidence. Those cases do not stand for the proposition that
explicit reliance by the police on the prior illegality is a prerequisite to
finding that the subsequently obtained evidence is a fruit of the poisonous
tree.


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This outcome would render superfluous the fundamental guarantees

of Miranda by the simple artifice of not mentioning the earlier,

illegally obtained statement when eliciting the subsequent

statement.

            While it is true that Statement 3 was elicited during

Officer Silva’s advisement of Trinque’s Miranda rights, Miranda

warnings, by themselves, are not enough to attenuate the taint of

a prior illegality.     Mariano, 114 Hawaii at 281, 160 P.3d at 1268.

If “Miranda warnings . . . were held to attenuate the taint of an

unconstitutional arrest, regardless of how wanton and purposeful

the Fourth Amendment violation, the effect of the exclusionary

rule would be substantially diluted.”        Id. (quoting Brown, 422

U.S. at 602); Joseph, 109 Hawaii at 487, 499, 128 P.3d at 800, 812

(subsequent statement, made post-Miranda, was held to be a fruit

of the poisonous tree); Eli, 126 Hawaii at 524, 273 P.3d at 1210

(accord).    Viewed another way, if Miranda warnings were sufficient

to attenuate the taint of a prior illegality, then the warnings--

which were designed to safeguard certain constitutional rights--

would become a means to legitimize the violation of such rights.

            The State further contends that State v. Luton, 83

Hawaii 443, 927 P.2d 844 (1996), is controlling.          In that case,

this court held that the defendant’s subsequent confession was not

the fruit of his pre-Miranda statements because the police


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officers did not exploit an illegally obtained statement to elicit

the defendant’s subsequent confession.22          Luton, 83 Hawaii at 455,

927 P.2d at 856.      However, Luton is entirely distinguishable from

this case.     First, the illegal statement and the post-Miranda

statement in Luton were made one day apart, in contrast to a few

hours in this case.       See id. at 447, 927 P.2d at 848.         Second, in

Luton, the officers who elicited the post-Miranda confession were

different from the one who obtained the illegal pre-Miranda

statement.     Id.   Here, on the other hand, the same police officers

involved in illegally obtaining Statement 1 and Statement 2 were

present in the interrogation room when Statement 3 was made, and

Officer Silva was the one who was advising Trinque of his

constitutional rights when Statement 3 was made.             Third, and most

significantly, the defendant in Luton met with a public defender,

between the taking of the unlawful statement and the subsequent

statement, and the public defender “advised [Luton] not to say

anything to anyone, including the police.”           Id.    Nevertheless, the

defendant elected to speak to the police.           Id. at 446, 927 P.2d at

847.    Luton thus involved intervening circumstances--not present


       22
            Luton also noted the fact that the police did not use the pre-
Miranda statements to induce a confession and did not reference the pre-Miranda
statements during the post-Miranda interrogation. Luton, 83 Hawaii at 455, 927
P.2d at 856. As discussed supra, the fact that the police in this case did not
mention or reference Statements 1 and 2 when Trinque made Statement 3 and that
Miranda warnings were provided before Statement 3 was made does not suffice to
satisfy the State’s burden of proving that Statement 3 is not a fruit of
Statements 1 and 2.


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in this case--that purged the taint.        In light of these facts,

Luton is inapposite.

          Accordingly, pursuant to article I, section 10 of the

Hawaii Constitution, the State failed to meet its burden of

demonstrating that Statements 1 and 2 did not taint Statement 3 or

that Statement 3 was so attenuated from Statements 1 and 2 as to

purge the taint for the following reasons: (1) the State failed to

show that Statement 3 would still have been elicited had the

illegality that produced Statements 1 and 2 not occurred; (2) the

fact that neither Statement 1 nor Statement 2 was explicitly

referenced in the course of eliciting Statement 3 does not satisfy

the State’s burden of demonstrating that Statement 3 is untainted;

(3) there were no intervening circumstances to indicate that the

taint of Statements 1 and 2 had dissipated when Statement 3 was

made; (4) the lapse of time and change in location are inadequate

to demonstrate sufficient attenuation between Statements 1 and 2

and Statement 3; and (5) under the circumstances of this case,

advising Trinque of his constitutional rights did not attenuate

Statement 3 from the prior illegality in obtaining Statements 1

and 2.   Thus, Statement 3 was the fruit of Statements 1 and 2 and

inadmissible into evidence.

                              V.   CONCLUSION

          We hold that Statement 2 is inadmissible into evidence

because it was the product of pre-Miranda custodial interrogation

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and that Statement 3 is the fruit of Statements 1 and 2.

Accordingly, the circuit court’s rulings as to Statements 2 and 3

were not clearly erroneous.      For these reasons, we vacate the

ICA’s Judgment on Appeal; affirm the circuit court’s Order

Suppressing Statements and Order Denying Voluntariness of

Statements; and remand this case to the circuit court for further

proceedings.

Jon N. Ikenaga and                        /s/ Mark E. Recktenwald
Hayley Y.C. Cheng
for petitioner                            /s/ Sabrina S. McKenna

Justin F. Kollar and                      /s/ Richard W. Pollack
Tracy Murakami
for respondent                            /s/ Michael D. Wilson

                                          /s/ Gary W.B. Chang




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