 FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                            Electronically Filed
                                            Intermediate Court of Appeals
                                            CAAP-XX-XXXXXXX
                                            08-JUN-2020
                                            07:53 AM




              IN THE INTERMEDIATE COURT OF APPEALS

                      OF THE STATE OF HAWAI#I


                             ---o0o---


            STATE OF HAWAI#I, Plaintiff-Appellant, v.
        TIANA F.M. SAGAPOLUTELE-SILVA, Defendant-Appellee


                          CAAP-XX-XXXXXXX


       APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                        (HONOLULU DIVISION)
                     (CASE NO. 1DTA-18-01227)


                           JUNE 8, 2020


        LEONARD, PRESIDING JUDGE, CHAN AND WADSWORTH, JJ.


    AMENDED OPINION OF THE COURT BY KATHERINE G. LEONARD, J.


          This case involves the well-established constitutional

principle that the prosecution may not use statements, whether

exculpatory or inculpatory, stemming from the custodial

interrogation of a defendant unless the defendant has first been

advised of his or her Miranda rights.     This rule applies in all

criminal matters, even when the alleged crime is a misdemeanor

traffic offense.   That said, whether the questioning of a
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defendant constitutes a custodial interrogation is dependent on

the totality of the circumstances and, in many instances, persons

who are temporarily detained pursuant to a traffic stop are not

in custody for the purposes of Miranda.   In addition, the right

against self-incrimination is not necessarily implicated whenever

a person suspected of criminal activity is compelled in some way

to cooperate in developing evidence which may be used against him

or her, such as when a defendant has performed a field sobriety

test and testimony regarding the defendant's physical

characteristics of coordination is offered against the defendant.

          The defendant in this case was arrested for Excessive

Speeding and Operating a Vehicle Under the Influence of an

Intoxicant.   Under the totality of the circumstances in this

case, we hold that the defendant was in custody almost

immediately after she was stopped by a police officer because,

inter alia, the officer had probable cause to arrest her for the

criminal offense of Excessive Speeding when he initially stopped

her, and she was not free to leave from the time she was stopped.

Upon approaching the defendant's vehicle, after briefly speaking

with the defendant, the officer had a reasonable suspicion that

she was intoxicated, but not probable cause, so the investigation

proceeded to a field sobriety test.   We hold that the defendant's

physical performance on that test was not testimonial, and the

defendant's responses to whether she would participate in the

test and whether she understood the instructions were attendant

to legitimate police procedures, and should not have been

suppressed.   We further hold, however, that the medical rule-out

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questions posed by the officer were reasonably likely to elicit

an incriminating response, and that the District Court did not

err in suppressing those statements.       Finally, for the reasons

stated below, we conclude that a statement made by the defendant

in response to being informed of the reason that she was stopped

was not the result of custodial interrogation and should not have

been suppressed, but that a statement made by the defendant after

she was arrested was fruit of the poisonous tree.       We affirm in

part, vacate in part, and remand.

          Plaintiff-Appellant the State of Hawai#i (State)

appeals from the Notice of Entry of Judgment and/or Order and

Plea/Judgment, filed on June 7, 2019 (Judgment), and Amended

Notice of Entry of Judgment and/or Order and Plea/Judgment, filed

on August 26, 2019 (Amended Judgment), in the District Court of

the First Circuit, Honolulu Division (District Court),1/ which

granted Defendant-Appellee Tiana F.M. Sagapolutele-Silva's

(Sagapolutele-Silva) Motion to Suppress Statements.      The State

also challenges Conclusions of Law (COLs) 7, 10, 13, and 16

through 21, of the District Court's July 11, 2019 Findings of

Fact and Conclusions of Law and Order Granting Defendant's Motion

to Suppress Statements (Suppression Order).

I.   BACKGROUND

          On March 31, 2018, at about 2:50 a.m., Honolulu Police

Department (HPD) Officer Franchot Termeteet (Officer Termeteet)

was conducting speed enforcement, when Sagapolutele-Silva's



     1/
          The Honorable Summer Kupau-Odo presided.

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vehicle passed him.2/     Sagapolutele-Silva appeared to be traveling

at a high rate of speed, so he used his LIDAR and measured her

speed at 77 miles per hour in a 45-mile-per-hour zone.             Officer

Termeteet also observed Sagapolutele-Silva's vehicle drift

between lanes and change lanes without a signal.            Sagapolutele-

Silva passed at least two 45-mile-per-hour speed limit signs.

Officer Termeteet pulled her over to the shoulder of the road.

            When Officer Termeteet approached Sagapolutele-Silva's

driver's side window, he noticed the smell of alcohol coming from

her breath and from within the vehicle, which held three other

passengers.    Although not noted in the District Court's FOFs,

Officer Termeteet testified that he also observed that

Sagapolutele-Silva had red, watery, and glassy eyes.             Officer

Termeteet asked Sagapolutele-Silva if she would be willing to

participate in a standardized field sobriety test (SFST) and she

agreed to participate.      Sagapolutele-Silva was not free to leave

while she waited for a second officer, HPD Officer Bobby Ilae

(Officer Ilae), to arrive.

            When Officer Ilae arrived on the scene, Officer

Termeteet apprised him of his observations, and Officer Ilae took

over the investigation.       Officer Ilae also asked Sagapolutele-

Silva if she would be willing to participate in an SFST and she

again agreed.     Prior to administering the SFST, Officer Ilae

asked Sagapolutele-Silva eight preliminary questions, which are

known as medical rule-out questions:         Do you have any physical

      2/
            The background facts are taken from the District Court's Findings
of Fact (FOFs), which are set forth in the Suppression Order, and which are
not challenged on appeal.

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defects or speech impediments; are you taking medication; are you

under the care of a doctor or dentist for anything; are you under

the care of an eye doctor; are you epileptic or diabetic; do you

have an artificial or glass eye; do you wear corrective lenses;

and are you are blind in either eye.    Sagapolutele-Silva answered

no to all of these questions, which are intended to see if there

is a medical reason that might cause a person to perform poorly

on the SFST, if an impairment is medically related, or if there

is a medical emergency.

            The SFST consists of three tests and prior to

administering them, Officer Ilae gave Sagapolutele-Silva

instructions, asked her if she understood the instructions, and

asked her if she had any questions.    Sagapolutele-Silva was not

advised of her Miranda rights at any point.    At the conclusion of

the SFST, Sagapolutele-Silva was arrested, and she told Officer

Ilae that she had been drinking beers, but her friends were more

impaired.

            Sagapolutele-Silva filed, inter alia, a motion to

suppress statements and a motion in limine.   The District Court

granted Sagapolutele-Silva's motion in limine to suppress her

breath test results.    At the hearing on the motion to suppress

statements, Officers Termeteet and Ilae testified.    After the

hearing concluded, in addition to the above, the District Court

found (and concluded) that Officer Termeteet had probable cause

to arrest or cite Sagapolutele-Silva for the petty misdemeanor




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offense of Excessive Speeding3/ as soon as he stopped her vehicle,

Sagapolutele-Silva was also the focus of an Operating a Vehicle

Under the Influence of an Intoxicant (OVUII) investigation, and

even prior to her exiting her vehicle, she was not free to leave.

The District Court's challenged COLs state:
            7.        At the time that Defendant was sitting in her vehicle,
                      prior to the administration of the SFST, she was not
                      free to leave, she was the focus of an OVUII
                      investigation and officers had probable cause to
                      arrest [h]er for at least Excessive Speeding. Officer
                      Termeteet and Ilae did not need the results of the
                      SFST to arrest and/or cite Defendant for Excessive
                      Speeding. Legal custody had attached.

            . . . .

            10.       Asking Defendant if she was willing to participate in
                      the SFST constituted custodial interrogation because
                      she was not free to leave, she was the focus of an
                      OVUII investigation and officers had probable cause to
                      arrest her. Asking a person if they would be willing
                      to participate in a SFST is reasonably likely to
                      elicit an incriminating response. For example,
                      refusing to participate in the SFST can be used at
                      trial to show consciousness of guilt pursuant to State
                      v. Ferm, 94 Haw. 17 (2000).

            . . . .

            13.       The MRO questions in this case constituted custodial
                      interrogation and were reasonably likely to elicit
                      incriminating responses. By answering "no" to all the
                      MRO questions, the State will likely use the responses
                      to establish that Defendant did not have any physical
                      or medical ailments that could have affected the
                      results of the SFST. Hence, all of the results of the
                      SFST were caused by impairment by an intoxicant.

            . . . .



      3/
            Hawaii Revised Statutes (HRS) § 291C-105 (year) provides, in
relevant part:
                  § 291C-105 Excessive speeding. (a) No person shall
            drive a motor vehicle at a speed exceeding:
            (1)   The applicable state or county speed limit by thirty
                  miles per hour or more; or
            (2)   Eighty miles per hour or more irrespective of the
                  applicable state or county speed limit.
            . . . .
                  (c) Any person who violates this section shall
            be guilty of a petty misdemeanor[.]

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           16.   Officer Ilae's questioning during the SFST as to
                 whether Defendant understood the instructions was
                 reasonably likely to elicit an incriminating response.
                 For example, if answered "no," it would be commentary
                 on her mental faculties and ability to understand the
                 instructions. If Defendant answered "yes," and did
                 not perform the test as instructed, her "yes" response
                 could be used against her at trial to show her mental
                 faculties were impaired.

           17.   Defendant's agreement to take the SFST is suppressed
                 and all evidence obtained after the agreement is fruit
                 of the poisonous tree.
           18.   Defendant's responses to the MRO questions are
                 suppressed and all evidence obtained by HPD after the
                 MRO questions are suppressed as fruit of the poisonous
                 tree.

           19.   Defendant's answer that she understood the
                 instructions during the SFST is suppressed and the
                 SFST is suppressed as fruit of the poisonous tree.

           20.   Defendant's statements while she was still in the
                 vehicle in response to Termeteet's statement as to why
                 she was being stopped is suppressed.
           21.   Defendant's statements to Officer Ilae after the SFST
                 is suppressed as fruit of the poisonous tree.

           The State timely filed a notice of appeal.

II.   POINT OF ERROR ON APPEAL

           The State raises a single point of error on appeal,

contending that the District Court erred in the challenged COLs

and the Suppression Order because Sagapolutele-Silva was not in

custody or seized until after she took the SFST and was arrested

for OVUII, in violation of HRS § 291E-61(a)(1) (Supp. 2018).4/




      4/
           HRS § 291E-61(a) states, in relevant part:
                 §291E-61 Operating a vehicle under the influence of
           an intoxicant. (a) A person commits the offense of
           operating a vehicle under the influence of an intoxicant if
           the person operates or assumes actual physical control of a
           vehicle:
                 (1)   While under the influence of alcohol in an
                       amount sufficient to impair the person's normal
                       mental faculties or ability to care for the
                       person and guard against casualty[.]

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III. APPLICABLE STANDARDS OF REVIEW
           The proponent of the motion to suppress has the burden of
           establishing, by a preponderance of the evidence, that the
           statements or items sought to be excluded were unlawfully
           secured and that his or her right to be free from
           unreasonable searches or seizures was violated under the
           fourth amendment to the United States Constitution and
           article I, section 7 of the Hawai#i Constitution.

State v. Estabillio, 121 Hawai#i 261, 269, 218 P.3d 749, 757

(2009) (citations omitted).

           A ruling on a motion to suppress is reviewed de novo,

and the appellate court must look at the entire record on appeal

to determine whether the ruling was right or wrong.           State v.

Joseph, 109 Hawai#i 482, 493, 128 P.3d 795, 806 (2006).           The

District Court's COLs are also reviewed de novo.           See id.

IV.   DISCUSSION

           The State primarily contends that the District Court

erred in suppressing Sagapolutele-Silva's responses to the

medical rule-out questions because she was not in custody or

interrogated before the SFST had been administered and she was

arrested for OVUII.

           In State v. Wyatt, 67 Haw. 293, 687 P.2d 544 (1984),

the Hawai#i Supreme Court analyzed, inter alia, whether the

roadside questioning of a defendant who had been stopped for a

traffic violation constituted a custodial interrogation for the

purposes of applying Miranda:
                 "The government seeking to punish an individual must
           produce the evidence against her by its own independent
           labors, rather than by the cruel, simple expedient of
           compelling it from her own mouth." Miranda v. Arizona, 384
           U.S. 436, 460 (1966); State v. Russo, 67 Haw. 126, 131–32,
           681 P.2d 553, 558 (1984). And the rule that "the
           prosecution may not use statements, whether exculpatory or
           inculpatory, stemming from custodial interrogation of the
           defendant unless it demonstrates the use of procedural
           safeguards effective to secure the privilege against


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            self-incrimination," Miranda, 384 U.S. at 444 (emphasis
            added), applies even where the object of the prosecution is
            to establish the commission of "a misdemeanor traffic
            offense." Berkemer v. McCarty, 468 U.S. 420, 429 (1984).

                  Whether interrogation was carried on in a custodial
            context is dependent on the totality of circumstances
            surrounding the questioning, State v. Paahana, 66 Haw. 499,
            503, 666 P.2d 592, 595 (1983); State v. Melemai, 64 Haw.
            479, 481, 643 P.2d 541, 544 (1982). The relevant
            circumstances, we have said, 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." Paahana, supra. But the ultimate test is
            whether the questioning was of a nature that would
            'subjugate the individual to the will of his examiner' and
            thereby undermine the privilege against compulsory
            self-incrimination. Rhode Island v. Innis, 446 U.S. 291,
            299 (1980) (quoting Miranda, 384 U.S. at 457–58, 86 S.Ct. at
            1618–19).

Wyatt, 67 Haw. at 298, 687 P.2d at 549 (citations edited;

footnote and brackets omitted).

            In Wyatt, after the defendant's vehicle was stopped for

a traffic violation and she was briefly detained, a police

officer asked her if she had been drinking.           Id. at 297, 687 P.2d

at 548.    Although the stop and resulting brief detention

constituted a seizure within the meaning of the Fourth and

Fourteenth Amendments, the seizure was not unreasonable.             Id. at

300, 687 P.2d at 549.      Nothing in the record suggested that the

question was posed in a coercive or custodial setting.             Id. at

301, 687 P.2d at 550.      Under the circumstances, the supreme court

concluded that Miranda warnings were not required before the

defendant was asked if she had been drinking.           Id.; see also

State v. Ah Loo, 94 Hawai#i 207, 211, 10 P.3d 728, 732 (2000) (a

defendant is not in custody merely before he or she has been

seized in conjunction with a traffic stop).5/          The supreme court

      5/
            In Ah Loo, the supreme court reiterated 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
                                                                (continued...)

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in Wyatt further concluded that the SFST that the defendant

performed was not constitutionally infirm because the test sought

only an exhibition of her physical characteristics of

coordination, rather than communications or testimony, even

though its purpose was to gather evidence of criminal conduct.

Wyatt, 67 Haw. at 302-03, 687 P.2d at 551.

            In State v. Kaleohano, 99 Hawai#i 370, 56 P.3d 138

(2002), the supreme court examined whether the defendant in that

case was entitled to Miranda warnings when she was questioned by

an officer after her vehicle was stopped because the officer

suspected that the driver was impaired.          The court first observed

that the defendant was not in custody for the purposes of Miranda

simply due to the valid traffic stop.         Id. at 376, 56 P.3d at

144.   The court noted, however, that if probable cause to arrest

or sustained and coercive questioning were present, then

questions posed by the police could amount to custodial

interrogation.     Id. at 377, 56 P.3d at 145.        The supreme court

then considered whether there was probable cause to arrest the

defendant for driving while impaired, i.e., whether "the facts

and circumstances within the knowledge of police officers and of

which they had reasonably trustworthy information were sufficient

in themselves to warrant a man or woman of reasonable caution to

believe that a crime was being committed."           Id. (citation

omitted).    Although the officer had observed the defendant's car


      5/
         (...continued)
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.

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swerve within its lane and cross the dividing line, and her eyes

were red and glassy, the supreme court noted that imperfect

driving and red eyes, particularly in light of defendant's claim

that it was late and she was tired, were consistent with innocent

activity and were insufficient to support a finding of probable

cause.   Id.   Because there was no probable cause to arrest the

defendant, and in light of the fact that the officer did not

subject the defendant to sustained and coercive questioning, the

supreme court concluded that the officer was not required to give

her a Miranda warning prior to asking her if she had been

drinking.   Id. at 377-78, 56 P.3d at 145-46.

            Turning to the case before us, we must examine whether,

under the totality of the circumstances here, Sagapolutele-

Silva's suppressed statements stemmed from custodial

interrogation.    Sagapolutele-Silva was not in custody merely

because she was seized in connection with a traffic stop.      Ah

Loo, 94 Hawai#i at 211, 10 P.3d at 732.   To determine whether an

interrogation is custodial, the totality of the circumstances

analysis focuses on "'the place and time of the interrogation,

the length of the interrogation, the nature of the questions

asked, the conduct of the police, and [any] other relevant

circumstances[.]'" Id. at 210, 10 P.3d at 731 (citing State v.

Melemai, 64 Haw. 479, 481, 643 P.2d 541, 544 (1982)); see also

State v. Kazanas, 138 Hawai#i 23, 35, 375 P.3d 1261, 1273 (2016)

(reiterating same).    In this regard, the supreme court has

acknowledged that "no precise line can be drawn" between

"custodial interrogation," on the one hand, and "permissible

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general on-the-scene questioning," on the other.           Ah Loo, 94

Hawai#i at 210, 10 P.3d at 731 (citing State v. Patterson, 59

Haw. 357, 362, 581 P.2d 752, 755-56 (1978)) (brackets omitted).

Custodial interrogation is comprised of two components,

"interrogation" and "custody."       Kazanas, 138 Hawai#i at 35, 375

P.3d at 1273.    The totality of the circumstances test applies to

custodial interrogation, "in the sense that the defendant is

deprived of his or her freedom of action in any significant way."

Id.   In contrast, "the touchstone in analyzing whether

'interrogation' has taken place is whether the police officer

'should have known that his or her words and actions were

reasonably likely to elicit an incriminating response from the

defendant.'"    Id. at 38, 375 P.3d at 1276 (internal brackets and

citation omitted).

           Here, we first consider whether the District Court

erred by finding that there was probable cause to arrest

Sagapolutele-Silva for Excessive Speeding when she was initially

stopped.
           For the offense of excessive speeding, the prosecution must
           prove beyond a reasonable doubt that the defendant "[drove]
           a motor vehicle at a speed exceeding: (1) The applicable
           state or county speed limit by thirty miles per hour or
           more; or (2) [e]ighty miles per hour or more irrespective of
           the applicable state or county speed limit. HRS
           § 291C–105(a) (brackets added).

State v. Assaye, 121 Hawai#i 204, 216, 216 P.3d 1227, 1239

(2009).

           Excessive Speeding is a criminal offense for which the

State must prove a defendant acted intentionally, knowingly, or

recklessly.    State v. Gonzalez, 128 Hawai#i 314, 324, 288 P.3d

788, 798 (2012).
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          Probable cause to arrest without a warrant exists when the
          arresting officer has reasonable grounds to believe, from
          facts and circumstances personally known to him, or of which
          he has trustworthy information, that the person arrested has
          committed or is committing an offense. State v. Barnes, 58
          Haw. 333, 568 P.2d 1207 (1977).

State v. Lloyd, 61 Haw. 505, 509, 606 P.2d 913, 916 (1980).

          In this case, Officer Termeteet testified that

Sagapolutele-Silva was traveling 77 miles per hour based on the

speed reading from his LIDAR, the incident occurred in a 45-mile-

per-hour zone, and there were multiple 45-mile-per-hour speed

limit signs in the area, with one sign right before his location

near an on-ramp, where Sagapolutele-Silva passed him.

Sagapolutele-Silva acknowledged that she was speeding in response

to being informed of the reason she was stopped.          Thus, we

conclude that there was probable cause to arrest Sagapolutele-

Silva for Excessive Speeding when she was initially stopped by

Officer Termeteet.

          That said, there is no requirement for the police to

arrest a suspect once probable cause is established.           Lloyd, 61

Haw. at 514, 606 P.2d at 919.      Indeed, the police need not halt

an investigation the moment they have the minimum evidence to

establish probable cause because it may fall short of evidence

necessary to support a criminal conviction.         Id. (citing Hoffa v.

United States, 385 U.S. 293, 310 (1966)).        Nevertheless, "[a]n

individual in police custody may not be subjected to

interrogation without first being advised of his Miranda rights."

Melemai, 64 Haw. at 481, 643 P.2d at 543.

          Under the totality of the circumstances in this case,

Sagapolutele-Silva was in custody for Excessive Speeding.            Id. at

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481, 643 P.2d at 544.    Officer Termeteet had probable cause to

arrest Sagapolutele-Silva for Excessive Speeding when he

initially stopped her.    Sagapolutele-Silva admitted to speeding

after she was informed she was stopped for speeding. As discussed

below, upon his initial observations of Sagapolutele-Silva,

Officer Termeteet had a reasonable suspicion that she was driving

while intoxicated.    Officer Termeteet stated Sagapolutele-Silva

was not free to leave from the time she was stopped.    Under the

totality of the circumstances, the District Court did not err in

COL 7 in concluding, inter alia, that legal custody had attached.

Sagapolutele-Silva should have been given Miranda warnings prior

to any interrogation.

          Notwithstanding the foregoing, the investigation for

OVUII in this case constituted a separate and distinct

investigation, albeit related to the initial traffic stop, and it

required an independent reasonable suspicion. See generally

Estabillio, 121 Hawai#i at 273, 218 P.3d at 761. There was

reasonable suspicion that Sagapolutele-Silva was operating a

vehicle while intoxicated based upon her driving; her red,

watery, and glassy eyes; and the smell of alcohol.    State v.

Barrickman, 95 Hawai#i 270, 274-77, 21 P.3d 475, 479-82 (App.

2001) (there was reasonable suspicion to investigate driving

while intoxicated based on defendant's glassy eyes and smell of

alcohol on breath).   However, red and glassy eyes alone and

imperfect driving are insufficient to establish probable cause to

arrest a person for OVUII.    Kaleohano, 99 Hawai#i at 377-78, 56

P.3d at 145-46.

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          As noted by the supreme court in Kernan v. Tanaka, 75

Haw. 1, 38 n.23, 856 P.2d 1207, 1226 n.23 (1993):
                Usually, the police administer a field sobriety test
          consisting of specific procedures when a driver has been
          stopped as a DUI suspect. If a driver does not exit
          voluntarily, the police must order him or her out of the
          vehicle even though probable cause to arrest may not have
          been established. Should the suspect fail the test, an
          arrest will ensue. Thus, it is the test failure that
          provides the police with probable cause to arrest. We do
          not require the police to have probable cause to arrest
          prior to the administration of the field sobriety test
          because such a requirement unduly burdens law enforcement.

          "Field sobriety tests are designed and administered to

avoid the shortcomings of casual observation."         Wyatt, 67 Haw. at
302, 687 P.2d at 551.    Here, Officer Termeteet did not initially

have probable cause to arrest Sagapolutele-Silva for OVUII based

upon noticing she had red, watery, and glassy eyes, and an odor

of alcohol about her.    And, the right against self-incrimination

is not necessarily implicated whenever a person suspected of

criminal activity is compelled in some way to cooperate in

developing evidence which may be used against her, such as when a

driver is asked to participate in a SFST.        Id.   As discussed

above, the Wyatt court held that since performance on an SFST was

neither communication nor testimony, the trial court did not err

by refusing to suppress the officer's SFST observations.           Id. at

301-03, 687 P.2d at 550-51.

          In addition, in Pennsylvania v. Muniz, 496 U.S. 582,

605 (1990), the United States Supreme Court rejected the

contention that Miranda warnings are required prior to an inquiry

as to whether a defendant understood SFST instructions, because

the "focused inquires were necessarily 'attendant to' the police

procedure held by the court to be legitimate."         Accordingly,

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asking Sagapolutele-Silva whether she understood the instructions

to the SFST did not implicate her right to self-incrimination.

Thus, we conclude that the District Court erred by suppressing

Sagapolutele-Silva's response to whether she would participate in

the SFST, whether she understood the instructions to the SFST,

and the officer's observations of her performance on the SFST.

Therefore, COLs 10, 16, 17, and 19 are wrong.

          However, due to Sagapolutele-Silva being in custody for

Excessive Speeding, the medical rule-out questions, which were

asked in relation to the OVUII investigation here, constituted

interrogation.   As other courts have observed, 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.    See Mathis v. United States,

391 U.S. 1, 2, 4-5 (1968) (noting that there is "nothing in the

Miranda opinion which calls for a curtailment of the warnings to

be given persons under interrogation by officers based on the

reason why the person is in custody"); see also, e.g., People v.

Bejasa, 140 Cal. Rptr. 3d 80, 91 (Cal. Ct. App. 2012); State v.

Lawler, No. L-96-223, 1997 WL 77511, **1-2 (Ohio Ct. App. Feb.

21, 1997);   State v. Lien, No. 32443-5-III, 2016 WL 4267689

(Wash. Ct. App. Aug. 11, 2016).    Here, Officer Ilae testified

that Sagapolutele-Silva was not free to leave during his

encounter with Sagapolutele-Silva in connection with his

investigation into OVUII, and there was nothing to indicate

Sagapolutele-Silva was free to go about her business before being

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questioned about OVUII.    Sagapolutele-Silva was in custody for

Excessive Speeding when the medical rule-out questions were

posed.

            "[T]he touchstone in analyzing whether interrogation

has taken place is whether the police officer should have known

that his [or her] words and actions were reasonably likely to

elicit an incriminating response from the defendant."    Kazanas,

138 Hawai#i at 38, 375 P.3d at 1276 (citation and quotation marks

omitted).    Relying upon Rhode Island v. Innis, 446 U.S. 291,

Kazanas reiterated that "interrogation consists of any express

question - or, absent an express question, any words or conduct -

that the officer knows or reasonably should know is likely to

elicit an incriminating response."    Id. (citation and internal

quotation marks omitted).    An incriminating response is any

response, either inculpatory or exculpatory.    Innis, 446 U.S. at

301 n.5.    In contrast, a physical inability to articulate words

in a clear manner due to lack of muscular coordination of the

tongue and mouth is not testimonial evidence for purposes of

self-incrimination.    Muniz, 496 U.S. at 590-91.

            We note that in Gibson v. Commonwealth, 706 S.E.2d 541,

545 (Va. App. 2011), a defendant claimed that his response to a

question whether he had any physical problems prior to

administration of a SFST amounted to custodial interrogation for

which he should have received Miranda warnings.     The Gibson court

held that the question fell under the necessarily-attendant-to-a-

legitimate-police-procedure exception in Muniz, because the

"physical problems" question was sufficiently analogous to asking

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whether the defendant understood the instructions as to how each

part of the SFST was to be performed, was meant to assure the

validity of the test, and was not to elicit an incriminating

response.    Id.    We decline to adopt and apply this reasoning to

the medical rule-out questions at issue here.

            In this case, the District Court's FOFs 15 and 16

identified the medical rule-out questions posed to Sagapolutele-

Silva as follows:
            i.    Do you have any physical defects or speech
                  impediments?
            ii.   Are you taking any medications?
            iii. Are you under the care of a doctor or dentist
                  for anything?
            iv.   Are you under the care of an eye doctor?
            v.    Do you have an artificial or glass eye?
            vi.   Are you epileptic or diabetic?
            vii. Are you blind in either eye?
            viii. Do you wear corrective lenses?

            Based on, inter alia, our review of Muniz, we conclude

that the medical rule-out questions posed to Sagapolutele-Silva

were reasonably likely to elicit an incriminating response and,

therefore, constituted interrogation.         As held in Muniz, "[a]n

accused's communication must itself, explicitly or implicitly,

relate a factual assertion or disclose information" in order to

be testimonial.      Muniz, 496 U.S. at 594 (citation omitted).        The

privilege against self-incrimination is "to spare the accused

from having to reveal, directly or indirectly, his knowledge of

facts relating him to the offense or from having to share his

thoughts and beliefs with the Government."          Id. at 595.   In

Muniz, an officer asked a defendant if he knew the date of his

sixth birthday to which the defendant responded:           "No, I don't."

Id. at 586.      The Muniz court held the question constituted


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interrogation because it required a testimonial response.            Id. at

600.   The Muniz court stated:
                 In contrast, the sixth birthday question in this case
           required a testimonial response. When Officer Hosterman
           asked Muniz if he knew the date of his sixth birthday and
           Muniz, for whatever reason, could not remember or calculate
           that date, he was confronted with the trilemma. By
           hypothesis, the inherently coercive environment created by
           the custodial interrogation precluded the option of
           remaining silent, see n. 10, supra. Muniz was left with the
           choice of incriminating himself by admitting that he did not
           then know the date of his sixth birthday, or answering
           untruthfully by reporting a date that he did not then
           believe to be accurate (an incorrect guess would be
           incriminating as well as untruthful). The content of his
           truthful answer supported an inference that his mental
           faculties were impaired, because his assertion (he did not
           know the date of his sixth birthday) was different from the
           assertion (he knew the date was (correct date)) that the
           trier of fact might reasonably have expected a lucid person
           to provide. Hence, the incriminating inference of impaired
           mental faculties stemmed, not just from the fact that Muniz
           slurred his response, but also from a testimonial aspect of
           that response.

Id. at 598-99.

           Here, although Officer Ilae stated that the purpose of

the medical rule-out questions was to assist him in evaluating

Sagapolutele-Silva's physical performance on the SFST, which is

non-testimonial evidence, his subjective intent is not relevant.

Kazanas, 138 Hawai#i at 40, 375 P.3d at 1278 (notwithstanding the

officer's subjective intent to conduct small talk, asking

defendant how his night went in order to calm him down
constituted interrogation because the question was likely to

elicit an incriminating response after being arrested).            The

medical rule-out questions 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

Sagapolutele-Silva was under the influence of an intoxicant by

either admitting or denying there were other causes that could


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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.
          Where an individual is being subjected to custodial
          interrogation, he may not be asked any questions without his
          first being advised of his right to remain silent, that
          anything he says can and will be used against him, that he
          has the right to have his attorney present, and that if he
          cannot afford counsel, one will be appointed for him prior
          to any interrogation. Miranda v. Arizona, 384 U.S. 436,
          467-474 (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 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).

          Sagapolutele-Silva was in custody.         She had not been

given Miranda warnings.     The medical rule-out questions

constituted interrogation.     Thus, we conclude that her responses

to those questions should have been suppressed and the District

Court did not err in so concluding in COLs 13 and 18.

          We next turn to whether the District Court erred by
suppressing Sagapolutele-Silva's other statements to Officers

Termeteet and Ilae.    The FOFs and COLs contained in the

Suppression Order do not specifically identify what statements

Sagapolutele-Silva made "while still in the vehicle in response

to [Officer] Termeteet's statement as to why she was being

stopped," or "Defendant's statements to Officer Ilae after the

SFST."   However, it appears from the record that the only

statement Sagapolutele-Silva made to Officer Termeteet in

response to him informing her she was being stopped for speeding
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was an acknowledgment she was speeding.          After the SFST was

complete and Officer Ilae informed Sagapolutele-Silva she was

under arrest, Sagapolutele-Silva admitted to drinking a few

beers.

            Generally, informing a defendant of the reason for

being stopped or arrested does not constitute custodial

interrogation likely to elicit an incriminating response.              See,

e.g., United States v. Benton, 996 F.2d 642, 643-44 (3d Cir.

1993); see also, e.g., State v. Ikaika, 67 Haw. 563, 565, 698

P.2d 281, 283 (1985) (spontaneous admissions, made in the absence

of any police questioning, were admissible); cf. Kazanas, 138

Hawai#i at 38, 375 P.3d at 1276 (asking the defendant how his

night was going, under the circumstances of his detainment, was

reasonably likely to elicit his incriminating response and

therefore constituted interrogation).6/         Without more, simply

informing a person of the reason for his or her arrest does not

constitute interrogation.       Officer Termeteet informed

Sagapolutele-Silva that he stopped her for speeding as soon as he

approached her vehicle, and Sagapolutele-Silva responded by

spontaneously admitting she was speeding.          Even under the

circumstances of this case, where there was probable cause to

      6/
            Interrogation does not include "words or actions on the part of
the police [that are] normally attendant to arrest and custody." Innis, 446
U.S. at 301. "[W]hen an officer informs [a suspect] of [the] circumstances"
of his arrest "or explain[s] . . . evidence against him," "this information
may be considered normally attendant to arrest and custody." United States v.
Moreno-Flores, 33 F.3d 1164, 1169 (9th Cir. 1994) (quoting United States v.
Crisco, 725 F.2d 1228, 1232 (9th Cir. 1984)); see also id. ("[I]nterrogation
is not so broad as to capture within Miranda's reach all declaratory
statements by police officers concerning the nature of the charges against the
suspect and the evidence relating to those charges." (alteration in original)
(quoting United States v. Payne, 954 F.2d 199, 202 (4th Cir. 1992))." United
States v. Berckmann, 2018 WL 1527824, *14 (D. Haw. Mar. 28, 2018) (Order).


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arrest Sagapolutele-Silva for Excessive Speeding, Officer

Termeteet informing her that she was stopped for speeding would,

at most, be comparable to informing Sagapolutele-Silva she was

being arrested for Excessive Speeding.    It did not constitute

interrogation.    Therefore, COL 20 is wrong.

          The District Court's suppression of Sagapolutele-

Silva's statement to Officer Ilae after administration of the

SFST was based upon the fruit of the poisonous tree doctrine.     As

the District Court recognized, "[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) (citation and internal quotation marks omitted;

emphasis added).

          With respect to the basis for the District Court's

ruling, the illegal act committed by the police in this case was

asking the medical rule-out questions, after Sagapolutele-Silva

was in custody, without first advising her of her Miranda rights,

as discussed above.    As the supreme court discussed in State v.

Trinque, 140 Hawai#i 269, 282, 400 P.3d 470, 483 (2017), the

common thread in its jurisprudence regarding what constitutes

exploitation that taints subsequently obtained evidence is that

the "prior illegality contributed in the subsequent obtainment of

evidence, statements, or confessions", i.e., that the State

failed to show "that the discovery of the challenged evidence was

not a benefit derived from the prior illegality."    The State

presented no evidence that Sagapolutele-Silva's statements to

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Officer Ilae were attenuated by a lapse of time or intervening

circumstances.      See id. at 281, 400 P.3d at 482.7/       Although there

is nothing in the record to suggest that the officer's misconduct

was purposeful or flagrant, we cannot conclude that the District

Court erred in concluding that Sagapolutele-Silva's spontaneous

admission that she had been drinking, in response to being told

she was under arrest for OVUII, shortly after the medical rule-

out questions were posed, constitutes fruit of the poisonous

tree.      Therefore, we conclude that the District Court did not err

in COL 18 and 21.8/

V.    CONCLUSIONS

              For these reasons, the June 7, 2019 Judgment and the

August 26, 2019 Amended Judgment are affirmed in part and vacated

in part.      This case is remanded to the District Court for further

proceedings.

On the briefs:

Brian R. Vincent,                          /s/ Katherine G. Leonard
Deputy Prosecuting Attorney,               Presiding Judge
City and County of Honolulu,
for Plaintiff-Appellant.                   /s/ Derrick H.M. Chan
                                           Associate Judge
Alen M. Kaneshiro,
for Defendant-Appellee.                    /s/ Clyde J. Wadsworth
                                           Associate Judge

      7/
            Hawai#i appellate courts have repeatedly held 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." Trinque, 140
Hawaii at 281, 400 P.3d at 482 (citations omitted).
      8/
             As set forth above, COL 21 refers to Sagapolutele-Silva's
"statements to Officer Ilae after the SFST" as being suppressed as fruit of
the poisonous tree. To be clear, our conclusion that COL 21 is not wrong is
based on the fact that this time period is also the time period after the
medical rule-out questions were posed and not based on any infirmity with the
SFST itself.

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