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                                                    Electronically Filed
                                                    Intermediate Court of Appeals
                                                    CAAP-XX-XXXXXXX
                                                    29-JUN-2020
                                                    07:45 AM




                            NO. CAAP-XX-XXXXXXX

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I


               STATE OF HAWAI#I, Plaintiff-Appellee, v.
              KEENAN MASAO NAKAGAWA, Defendant-Appellant


          APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                           (HONOLULU DIVISION)
                        (CASE NO. 1DTA-18-00222)


                      SUMMARY DISPOSITION ORDER
        (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)


             Defendant-Appellant Keenan Masao Nakagawa (Nakagawa)

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

Plea/Judgment, filed on November 28, 2018 (Order re Suppression

and Conviction),1/ and the Notice of Entry of Judgment and/or

Order and Plea/Judgment,2/ filed on February 11, 2020, in the

District Court of the First Circuit, Honolulu Division (District




1/
       The Honorable Trish Morikawa presided.
2/
       The Honorable William M. Domingo presided.
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Court) (Final Judgment).3/       Nakagawa was convicted of Operating a

Vehicle Under the Influence of an Intoxicant (OVUII), in

violation of Hawaii Revised Statutes (HRS) § 291E-61(a)(1) (Supp.

2019).4/

             Nakagawa raises a single point of error on appeal,

contending that the District Court erred in denying his motion to

suppress his "statements," including his performance on a

Standard Field Sobriety Test (SFST).          "We review the circuit

court's ruling on a motion to suppress de novo and must look to

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) (citations and internal quotation marks omitted).

             Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised by the parties, we

resolve Nakagawa's point of error as follows:

             Citing State v. Tsujimura, 140 Hawai#i 299, 400 P.3d

500 (2017), Nakagawa first argues that the District Court erred

3/
      An unsigned copy of this judgment was filed on April 1, 2019, and on
February 11, 2020, the Final Judgment was entered to correct this error.
4/
       HRS § 291E-61(a)(1) 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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in denying his motion to suppress because any statements he made

after he was stopped for a traffic violation violated his pre-

arrest right to remain silent because he was not advised of his

right to remain silent at the time of the stop.             This argument is

without merit.

             In State v. Uchima, SCWC-XX-XXXXXXX, 2020 WL 2536669,

at *3, *14-15 (Haw. May 19, 2020), the supreme court rejected a

similar claim that a defendant's verbal and non-verbal responses

were obtained in violation of the pre-arrest right to remain

silent that was recognized in Tsujimura.              This case, like Uchima,

does not involve the use of Nakagawa's silence against him.             Id.

at *14.     Thus, Tsujimura is not applicable to this case.

             Nakagawa also argues that he was subjected to a

custodial interrogation without first being administered a

Miranda5/ warning because, inter alia, he was in custody from the

point where Honolulu Police Department (HPD) Officer Michael

Aganos (Officer Aganos) stopped him.

             Thus, we must examine whether, under the totality of

the circumstances, Nakagawa's statements stemmed from custodial

interrogation.      Nakagawa was not in custody merely because he was

seized in connection with a traffic stop.             State v. Ah Loo, 94

Hawai#i 207, 211, 10 P.3d 728, 732 (2000).             To determine whether

an interrogation is custodial, the totality of the circumstances

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

5/
       See Miranda v. Arizona, 384 U.S. 436 (1966).

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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

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 in

determining whether there is custodial interrogation, "in the

sense that the defendant is deprived of his or her freedom of

action in any significant way."       Id.   In contrast, "the

touchstone in analyzing whether 'interrogation' has taken place

is whether the police officer 'should have known that his or her

words and actions were reasonably likely to elicit an

incriminating response from the defendant.'"        Id. at 38, 375 P.3d

at 1276 (brackets and citation omitted).

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

where the defendant was briefly detained and therefore seized,

but not in custody or coercively questioned, the supreme court


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held that Miranda warnings were not required before she was asked

if she had been drinking.   Wyatt, 67 Haw. at 297-301, 687 P.2d at

548-50.   The supreme court further concluded that the SFST that

the defendant performed was not constitutionally infirm because

the test sought only an exhibition of her physical

characteristics of coordination, rather than communications or

testimony, even though its purpose was to gather evidence of

criminal conduct.   Id. at 302-03, 687 P.2d at 551.     In Kaleohano,

the supreme court noted that if probable cause to arrest or

sustained and coercive questioning were present, then questions

posed by the police could amount to custodial interrogation.

State v Kaleohano, 99 Hawai#i 370, 377, 56 P.3d 138, 145 (2002).

The court concluded that because there was no probable cause to

arrest the defendant, and in light of the fact that the officer

did not subject the defendant to sustained and coercive

questioning, the officer was not required to give the defendant a

Miranda warning prior to asking her if she had been drinking.

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

            Here, Officer Aganos testified that he was on duty on

January 4, 2018, at approximately 1:15 a.m., when he stopped

Nakagawa.   Officer Aganos was traveling east on Kuhio Avenue in a

blue-and-white vehicle in lane 2, the right lane, while Nakagawa

was in lane 1, the left lane next to a center divider on a two-

way street.   After observing Nakagawa make sharp movements side

to side, which were not normal but also not a violation, Officer


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Aganos changed to lane 1 behind Nakagawa.     Prior to the

intersection of Nahua and Kuhio, Officer Aganos observed Nakagawa

cross a double solid yellow center line into the oncoming traffic

lane.   Officer Aganos testified that, based on his experience and

training, at no time are drivers supposed to cross the double

solid yellow lines.    Nakagawa drove over the double solid yellow

lines for 20 feet before stopping at the intersection, still over

the double solid yellow lines.    There was oncoming traffic in the

opposite lane.   After Nakagawa made a left turn, Officer Aganos

initiated a traffic stop; Nakagawa was in the driver's seat.

           Officer Aganos informed Nakagawa that he pulled him

over for crossing the double solid yellow lines, and then

requested his driver's license, registration, and insurance.

Nakagawa gave Officer Aganos his driver's license, but then just

stared at him.   During that time, Officer Aganos smelled a strong

odor of an alcoholic beverage from Nakagawa's breath and observed

that Nakagawa had watery, red, bloodshot eyes.     Officer Aganos

asked Nakagawa again for his registration and insurance to which

Nakagawa responded that he had his driver's license.      After again

asking for the information, Nakagawa attempted to hand Officer

Aganos a bunch of paperwork from the glove box, but Officer

Aganos declined to take it.    Nakagawa's passenger then found the

requested documents.   While Officer Aganos wrote a traffic

citation, HPD Officer Courtney Pahia-Lewis (Officer Pahia-Lewis)

arrived, and he told her about his observation about the alcohol.


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Officer Aganos testified that, at that point, the traffic stop

turned into an OVUII investigation.

          Officer Pahia-Lewis testified that Officer Aganos asked

her to conduct the SFST on Nakagawa.     Nakagawa was in his car

when she approached him and asked if he would be willing to

participate in an SFST.   Nakagawa responded that yes, he would.

Officer Pahia-Lewis then asked Nakagawa to step out of his

vehicle, which he did.    Before beginning the SFST, Officer Pahia-

Lewis asked Nakagawa a series of medical rule-out questions.

Nakagawa responded "no" to each of the questions.      In response to

the officer's instructions and queries as to whether Nakagawa

understood the instructions, Nakagawa said he understood the

instructions.   After Nakagawa completed the SFST, he was arrested

for OVUII.

          As Nakagawa contends, he was detained or seized at the

point that he was stopped by Officer Aganos for crossing over the

double solid yellow lines.    After Officer Aganos began speaking

with Nakagawa, there was a reasonable suspicion that      Nakagawa

was operating a vehicle while intoxicated based upon his red,

watery and bloodshot eyes, and the smell of alcohol, as well as

the officer's earlier observation of Nakagawa's driving.      State

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

2001) (there was a reasonable suspicion to investigate driving

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

alcohol on breath).   However, without more, red, glassy eyes, and


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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.   Here, there was not probable cause to arrest

Nakagawa for OVUII prior to his performance on the SFST.

Nakagawa does not contend that he was subjected to sustained or

coercive questioning.   Under the totality of the circumstances,

we cannot conclude that Nakagawa was in custody when he was asked

whether he would agree to participate in an SFST.      See id. at

377, 56 P.3d at 145.

           "Field sobriety tests are designed and administered to

avoid the shortcomings of casual observation."     Wyatt, 67 Haw. at

302, 687 P.2d at 551 (brackets and citations omitted).      As

discussed above, Officer Aganos did not have probable cause to

arrest Nakagawa for OVUII prior to the SFST.     And, the right

against self-incrimination is not necessarily implicated whenever

a person suspected of criminal activity is compelled in some way

to cooperate in developing evidence which may be used against him

or her, such as when a driver is asked to participate in an SFST.

Id.   As we discussed in State v. Sagapolutele-Silva, CAAP-19-

0000491, 2020 WL 1699907 (Haw. App. Apr. 8, 2020), the Wyatt

court held that since performance on an SFST was neither

communication nor testimony, the trial court did not err by

refusing to suppress the officer's SFST observations.

Sagapolutele-Silva, 2020 WL 1699907 at *7 (citing Wyatt, 67 Haw.

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


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

603-04 (1990), the United States Supreme Court rejected the

contention that Miranda warnings are required prior to an inquiry

as to whether a defendant understood SFST instructions, because

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

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

asking Nakagawa whether he understood the instructions to the

SFST did not implicate his right against self-incrimination.              In

Sagapolutele-Silva, we held that the defendant was already in

custody, and thus the medical rule-out questions constituted a

custodial interrogation because, inter alia, they were likely to

elicit an incriminating response.         See id. at *7-8.     Here,

however, Nakagawa was not in custody when he was asked medical

rule-out questions and therefore was not thereby subjected to

custodial interrogation.       Nakagawa's performance on an SFST was

neither communication nor testimony, and the trial court did not

err by refusing to suppress the officer's SFST observations.              See

id., at *7 (citing Wyatt, 67 Haw. at 301-03, 687 P.2d at 550-51).

Accordingly, we conclude that the District Court did not err in

denying Nakagawa's motion to suppress.6/




6/
      In light of this conclusion, we need not address Nakamura's arguments
that certain evidence should have been suppressed as "fruit of the poisonous
tree," with the poisonous tree being a custodial interrogation without being
advised of his Miranda rights.

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          For these reasons, the District Court's November 28,

2018 Order re Suppression and Conviction and February 11, 2020

Final Judgment are affirmed.

          DATED: Honolulu, Hawai#i, June 29, 2020.

On the briefs:
                                       /s/ Lisa M. Ginoza
Alen M. Kaneshiro,                     Chief Judge
for Defendant-Appellant.
                                       /s/ Katherine G. Leonard
Stephen K. Tsushima,                   Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,           /s/ Clyde J. Wadsworth
for Plaintiff-Appellee.                Associate Judge




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