NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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[.]
2
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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).
3
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
4
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
5
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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.
6
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
7
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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).
8
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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.
9
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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
10