State v. Sagapolutele-Silva.

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
03-JUN-2022
09:33 AM
Dkt. 23 OP

IN THE SUPREME COURT OF THE STATE OF HAWAI‘I

---o0o---

STATE OF HAWAI‘I,
Petitioner and Respondent/Plaintiff-Appellant,

vs.

TIANA F.M. SAGAPOLUTELE-SILVA,
Respondent and Petitioner/Defendant-Appellee.

SCWC-XX-XXXXXXX

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-18-01227)

JUNE 3, 2022

RECKTENWALD, C.J., NAKAYAMA, J.,
AND CIRCUIT JUDGE WONG, ASSIGNED BY REASON OF VACANCY, WITH
McKENNA, J., DISSENTING SEPARATELY, WITH WHOM WILSON, J., JOINS,
AND WILSON, J., DISSENTING SEPARATELY

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. INTRODUCTION

Tiana Sagapolutele-Silva was arrested after a traffic

stop in 2018 and charged with Operating a Vehicle Under the

Influence of an Intoxicant (OVUII) and excessive speeding.
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Sagapolutele-Silva moved to suppress any statements she made

during the traffic stop on the ground that she was not advised

of her Miranda 1 rights during the encounter. The district court

granted the motion, concluding that Sagapolutele-Silva was in

custody during the investigation for OVUII because the

investigating officers had probable cause to arrest her for

excessive speeding, a petty misdemeanor. The Intermediate Court

of Appeals (ICA) affirmed.

On appeal, the State asks us to clarify when a suspect

is in custody for purposes of administering the prophylactic

warnings against self-incrimination required by article I,

section 10 of the Hawaiʻi Constitution. Although our cases have

consistently stated that the custody test is one of totality of

the circumstances, some of our precedent has nonetheless

indicated that the presence of probable cause alone is

dispositive.

We hereby clarify that a court must evaluate the

totality of the circumstances to determine whether a suspect is

in custody such that Miranda warnings are required before a

police officer may interrogate them. That formulation is

consistent with the purposes of Miranda since it focuses the

inquiry on whether police have created a “coercive atmosphere.”

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

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See, e.g., State v. Melemai, 64 Haw. 479, 482, 643 P.2d 541, 544

(1982) (Miranda warnings are required when “the totality of

circumstances created the kind of coercive atmosphere that

Miranda warnings were designed to prevent”); State v. Wyatt, 67

Haw. 293, 299, 687 P.2d 544, 549 (1984) (“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” (citations

omitted) (internal quotation marks omitted)).

Almost forty years ago, we considered the coerciveness

of roadside questioning in Wyatt. The defendant there was

ordered to pull over after officers observed her driving at

night with no headlights on, and officers then smelled alcohol

emanating from her vehicle. We held that Miranda warnings were

not required at that point since the circumstances were not

intimidating or coercive, but rather constituted “on-the-scene

questioning of brief duration conducted prior to arrest in

public view.” Wyatt, 67 Haw. at 300, 687 P.2d at 550; see also

State v. Kuba, 68 Haw. 184, 188, 706 P.2d 1305, 1309 (1985)

(holding, under facts “almost indistinguishable” from Wyatt,

that Miranda warnings were not required before the police began

asking questions). Wyatt and Kuba have not been overruled and

their totality-of-the-circumstances approach should be applied

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here. Accordingly, probable cause is relevant but not

dispositive to determining whether a person is in custody.

This case illustrates why it is important to assess

the relevance of probable cause in light of all the

circumstances. Sagapolutele-Silva was observed driving at

thirty-two miles per hour over the speed limit; if she had been

driving just three miles per hour slower, the officer would not

have had probable cause to arrest her for the offense of

excessive speeding. Hawaiʻi Revised Statutes (HRS) § 291C-

105(a)(1) (2007). 2 That three-mile-per-hour difference had no

effect on the coerciveness of the situation from Sagapolutele-

Silva’s point of view. Under the totality of the circumstances,

Sagapolutele-Silva was not in custody when she was pulled over

or during the administration of the standardized field sobriety

test (SFST). Accordingly, Miranda warnings were not required,

and there was no illegality which would taint her subsequent

statements as fruit of the poisonous tree.

We therefore vacate the district court’s order

suppressing Sagapolutele-Silva’s statements, vacate the judgment

of the ICA affirming that Sagapolutele-Silva was in custody

during the traffic stop, and remand the case to the district

court for further proceedings.

2 See infra note 5.

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II. BACKGROUND

Sagapolutele-Silva was arrested after a traffic stop

on March 31, 2018. She was charged in the District Court of the

First Circuit 3 with one count of OVUII, in violation of HRS

§§ 291E-61(a)(1) and/or (a)(3) (Supp. 2015), 4 and one count of

excessive speeding, in violation of HRS § 291C-105(a)(1) (2007). 5

Sagapolutele-Silva moved to suppress any statements

she made during the traffic stop on the ground that she was not

advised of her Miranda rights during the encounter. At the

hearing on the motion, the Honolulu Police Department (HPD)

officers involved in the traffic stop, Officers Franchot

Termeteet and Bobby Ilae, testified. Officer Termeteet

testified to pulling over Sagapolutele-Silva after observing her

driving seventy-seven miles per hour in an area where the speed

3 The Honorable Summer M. M. Kupau-Odo presided.

4 Sagapolutele-Silva was charged with violating HRS §§ 291E-
61(a)(1) and/or (a)(3) (Supp. 2015), which provide:

(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; [or] . . . .
(3) With .08 or more grams of alcohol per two hundred
ten liters of breath[.]

5 Sagapolutele-Silva was charged with violating HRS § 291C-
105(a)(1) (2007), which provides: “No person shall drive a motor vehicle at a
speed exceeding[] [t]he applicable state or county speed limit by thirty
miles per hour or more[.]” HRS § 291C-105(c) provides that “[a]ny person who
violates this section shall be guilty of a petty misdemeanor.”

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limit was forty-five miles per hour, and drifting between lanes

without signaling on the H-1 freeway in Honolulu. On cross-

examination, Officer Termeteet testified that based on his

observations of her speeding, he had probable cause to arrest

Sagapolutele-Silva for excessive speeding and that after being

stopped, she was not free to leave.

Officer Termeteet informed Sagapolutele-Silva “that I

was stopping her for speeding”; in response, she acknowledged

that she had been speeding. Officer Termeteet testified that he

smelled “a strong odor of alcohol coming from within the

vehicle,” but he could not determine from whom the odor emanated

because there were four passengers in the car. He asked

Sagapolutele-Silva for her license, vehicle registration, and

proof of insurance. She produced a permit for a commercial

driver’s license, and explained that she had a regular license

but did not have it with her; she also provided him with a

safety-inspection card. Officer Termeteet observed that

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

Termeteet asked Sagapolutele-Silva if she would participate in

the SFST; she agreed to do so.

Officer Ilae testified that he was “covering Officer

Termeteet on a traffic stop” and administered the SFST to

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Sagapolutele-Silva. 6 After asking her again whether she would be

willing to participate in the SFST, he asked a series of

“preliminary questions” sometimes referred to as the medical

rule-out questions: (1) “[d]o you have any physical defects or

speech impediments,” (2) “are you taking medication,” (3) “are

you under the care of a doctor or dentist,” (4) “are you under

the care of an eye doctor,” (5) “are you epileptic or diabetic,”

(6) “[do you have an] artificial or glass eye,” (7) “are you

wearing any contact lenses or corrective lenses,” and (8) “are

[you] blind in any eye.” Officer Ilae testified that these

questions are asked “to help [him] gauge whether or not the

impairment [he is] seeing is medically related or if . . .

there’s a medical emergency.” He testified he would not

administer the SFST if there were a medical emergency, but if

someone did not want to answer the medical rule-out questions,

he would nonetheless continue with the test. On cross-

examination, however, he testified he had never in fact

administered the SFST without asking the medical rule-out

questions.

Officer Ilae then administered the SFST. He

instructed Sagapolutele-Silva on each of the three components –

the horizontal gaze nystagmus, the walk-and-turn, and the one-

6 The record does not reflect when Officer Ilae arrived on the
scene. On cross-examination, Officer Ilae testified that Sagapolutele-Silva
was already out of the car when he got there.

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leg stand – to which she replied that she understood and had no

questions. After completing the SFST and giving Sagapolutele-

Silva a preliminary alcohol screening, Officer Ilae then told

her “that she was over” and was being arrested. As Officer Ilae

walked back to his car with Sagapolutele-Silva following him, he

heard her state that “she’s not going to lie, she had a few

beers but her friends [were] more impaired than she was.”

The district court orally granted the motion to

suppress, concluding that Sagapolutele-Silva was in custody and

subject to interrogation because Officer Termeteet had probable

cause to arrest her when he pulled her over. In its written

order, the district court made, as relevant here, the following

findings of fact and conclusions of law:

FINDINGS OF FACT

. . .

2. Officer Termeteet . . . measure[d] Defendant’s speed at
77 miles per hour in a 45 mile per hour zone.

. . .

5. While following Defendant’s vehicle, Officer Termeteet
observed Defendant drift into lane number 1, completing
a lane change without signals and then drift from lane 1
back to lane 2, completing another lane change without
signals.

6. Officer Termeteet activated his blue flashing lights
and Defendant’s vehicle came to a complete stop in the
right shoulder lane.

7. Officer Termeteet approached Defendant’s driver’s side
window and noticed the odor of alcohol coming from her
breath. . . . [and] from within the vehicle. . . .

8. Officer Termeteet asked Defendant for her driver’s
license. . . . Officer Termeteet asked Defendant if she

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would be willing to participate in a [SFST]. Defendant
verbally consented to participate in the SFST.
Defendant exited her vehicle and HPD Officer [Ilae] took
over the investigation.

9. When Officer Ilae arrived on scene, Officer Termeteet
apprised him of his observations. Officer Ilae
approached Defendant’s vehicle and began conversing with
her. Officer Ilae asked Defendant if she would be
willing to participate in an SFST. Defendant verbally
consented to participate in the SFST. . . .

10. Defendant was not free to leave while she waited for
Officer Ilae to arrive.

11. Prior to Defendant exiting the vehicle, she was not
free to leave.

12. Defendant was the focus of an OVUII investigation.

13. Officer Termeteet had probable cause to arrest or cite
Defendant for the petty misdemeanor offense of Excessive
Speeding as soon as he stopped her vehicle.

. . .

CONCLUSIONS OF LAW

. . .

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
[her] for at least Excessive Speeding. Officer[s]
Termeteet and Ilae did not need the results of the SFST
to arrest and/or cite Defendant for Excessive Speeding.
Legal custody had attached.

(Footnotes omitted.)

The district court concluded that both the officers’

initial questions, asking if Sagapolutele-Silva would consent to

the SFST, and the medical rule-out questions, asking whether she

understood the instructions, were interrogation; accordingly,

Sagapolutele-Silva’s answers to those questions were suppressed.

The district court also suppressed all evidence obtained

thereafter as fruit of the poisonous tree.

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The State appealed the order granting the motion to

suppress, and the ICA affirmed in part and vacated in part in a

published opinion. State v. Sagapolutele-Silva, 147 Hawaiʻi 92,

104, 464 P.3d 880, 892 (App. 2020). As relevant here, the ICA

concluded that Sagapolutele-Silva was in custody for excessive

speeding “[u]nder the totality of the circumstances” because

Officer Termeteet had probable cause to arrest her for that

offense when she was initially stopped. Id. at 100, 464 P.3d at

888. The ICA held, additionally, that “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.” 7 Id. at 101,

464 P.3d at 889. The ICA further reasoned that although “the

investigation for OVUII in this case constituted a separate and

distinct investigation” from the investigation for excessive

speeding, and Officer Termeteet only had reasonable suspicion of

OVUII, “the failure to provide a Miranda warning when required

for one crime will taint a subsequent interrogation even if the

7 With respect to interrogation, the ICA affirmed the district
court’s conclusion that the medical rule-out questions were interrogation,
and held that the defendant’s answers to those questions were properly
suppressed. State v. Sagapolutele-Silva, 147 Hawaiʻi at 102, 464 P.3d at 890.
Additionally, the ICA held that the defendant’s spontaneous post-arrest
statement that she had drunk a few beers was properly suppressed as fruit of
the poisonous tree. Id. at 104, 464 P.3d at 892. However, the ICA held that
statements made in response to being told why she was stopped were not the
product of interrogation. Id. at 103, 464 P.3d at 891. For a discussion of
interrogation during an OVUII roadside investigation, see State v. Skapinok,
SCWC-XX-XXXXXXX (Haw. 2022).

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interrogation relates to a different crime for which Miranda

warnings were not yet required, if a defendant is still in

custody.” Id. at 100-01, 464 P.3d at 888-89.

The State and Sagapolutele-Silva filed applications

for writs of certiorari, both of which this court accepted. The

State asks us to revisit our precedent establishing an

“either/or” test in which the existence of probable cause,

standing alone, is enough to establish that a suspect was in

custody. 8 Sagapolutele-Silva agrees that “the fact of probable

cause for arrest is not determinative on the issue of ‘custody’

for the purposes of Miranda — the determination as to whether an

individual is in ‘custody’ requires an objective determination

of the totality of the circumstances.” But Sagapolutele-Silva

contends that the ICA erred by holding that she was not in

custody during the “separate and distinct” investigation for

OVUII. 9

8 The State’s application notes that the “either/or” rule,
established in State v. Ketchum, 97 Hawai‘i 107, 126, 34 P.3d 1006, 1025
(2001), “is at variance with” Wyatt’s “totality of circumstances” rule and
internally inconsistent with other parts of Ketchum. The State “asks this
Court to clarify that custody for Miranda purposes should be based on a
totality of the circumstances and overrule any cases to the extent that they
suggest otherwise.”

9 The application suggests that because of this framing, the ICA
held Sagapolutele-Silva “was therefore not subjected to ‘custodial
interrogation.’” To the contrary, the ICA agreed that she was in custody,
citing, in part, the existence of probable cause to arrest for excessive
speeding, which “taint[ed]” the OVUII investigation. Sagapolutele-Silva, 147
Hawaiʻi at 101, 464 P.3d at 889.
Sagapolutele-Silva’s application additionally challenges the
ICA’s holding that only some of the questions asked during the encounter were
(continued...)

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III. STANDARD OF REVIEW

“An appellate court reviews a ruling on a motion to

suppress de novo to determine whether the ruling was ‘right’ or

‘wrong.’” State v. Weldon, 144 Hawaiʻi 522, 530, 445 P.3d 103,

111 (2019) (quoting State v. Tominiko, 126 Hawaiʻi 68, 75, 266

P.3d 1122, 1129 (2011)).

IV. DISCUSSION

The self-incrimination clause of article I, section 10

of the Hawai‘i Constitution 10 ensures that “a police officer may

not undermine a person’s privilege against compelled self-

incrimination by subjugating his or her will to that of

examining police officer.” State v. Ah Loo, 94 Hawaiʻi 207, 210,

10 P.3d 728, 731 (2000). This privilege “provides us with some

of our most treasured protections — preservation of our

autonomy, privacy, and dignity against the threat of state

action.” State v. Kamana‘o, 103 Hawai‘i 315, 320, 82 P.3d 401,

406 (2003) (quoting State v. Reyes, 93 Hawai‘i 321, 329, 2 P.3d

725, 733 (App. 2000)). In order to safeguard this right, before

police can interrogate a suspect in custody, “the person must be

(continued . . .)
interrogation and its failure to address fruits of the poisonous tree
argument. For the reasons discussed below, we need not reach these issues
based on our resolution of this case.

10 Article 1, section 10 of the Hawai‘i Constitution states in
pertinent part that no person “shall ... be compelled in any criminal case to
be a witness against oneself.”

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warned that he has a right to remain silent, that any statement

he does make may be used as evidence against him, and that he

has a right to the presence of an attorney, either retained or

appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966); id.

at 455 (“Even without employing brutality, . . . the very fact

of custodial interrogation exacts a heavy toll on individual

liberty and trades on the weakness of individuals.”).

Miranda warnings are also mandated under the Hawai‘i

Constitution, State v. Santiago, 53 Haw. 254, 265–66, 492 P.2d

657, 664 (1971) (“We hold today that the protections which the

United States Supreme Court enumerated in Miranda have an

independent source in the Hawai[ʿ]i Constitution’s privilege

against self-incrimination.”), and we have provided broader

protections under our constitution than exist under the United

States Constitution, id. at 263, 266, 492 P.2d at 662, 664

(rejecting Harris v. New York, 401 U.S. 222 (1971), and holding

that defendant who testifies cannot be impeached with statements

obtained in violation of Miranda).

The threshold question for a Miranda analysis is

whether the defendant was subjected to “custodial

interrogation,” defined as “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.” Melemai, 64 Haw. at 481, 643 P.2d at 543

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(quoting Miranda, 384 U.S. at 444). Here, the district court

and ICA held that Sagapolutele-Silva was both (1) in custody and

(2) interrogated, and therefore, Miranda warnings were required.

For the following reasons, we disagree with the first

conclusion.

A. Although Our Cases Emphasize That the Relevant Inquiry is
the Totality of the Circumstances, Some Decisions Have
Suggested That the Existence of Probable Cause is
Determinative

As noted above, both parties agree that the existence

of probable cause should not be outcome determinative when

analyzing whether a suspect is in custody for purposes of

Miranda. But when the ICA homed in on whether probable cause

had developed in this case, it did so because, although this

court has repeatedly stated that the test turns on the totality

of the circumstances, some of our precedent also suggests that

probable cause, standing alone, is enough to establish a suspect

was in custody:

[W]e hold that a person is “in custody” for purposes of
article I, section 10 of the Hawai‘i Constitution if an
objective assessment of the totality of the circumstances
reflects either (1) that the person has become impliedly
accused of committing a crime because the questions of the
police have become sustained and coercive, such that they
are no longer reasonably designed briefly to confirm or
dispel their reasonable suspicion or (2) that the point of
arrest has arrived because either (a) probable cause to
arrest has developed or (b) the police have subjected the
person to an unlawful “de facto” arrest without probable
cause to do so.

State v. Ketchum, 97 Hawai‘i 107, 126, 34 P.3d 1006, 1025 (2001)

(emphases added).

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We take this opportunity to clarify. To determine

whether a suspect is in custody for Miranda purposes under

article I, section 10 of the Hawaiʻi Constitution, a court must

consider the totality of the circumstances, objectively

appraised. The relevant circumstances are those that “betoken[]

a significant deprivation of freedom, ‘such that an innocent

person could reasonably have believed that he or she was not

free to go and that he or she was being taken into custody

indefinitely.’” Id. at 125, 34 P.3d at 1024 (alterations

omitted) (quoting Kraus v. County of Pierce, 793 F.2d 1105, 1109

(9th Cir. 1986)). While the existence of probable cause is

relevant, it is not dispositive in every case.

1. Our cases have never abrogated the totality-of-the-
circumstances inquiry, although they recognize the
relevance of probable cause to arrest

Our cases have consistently emphasized that the

totality of the circumstances should be evaluated in determining

when a person is in custody for Miranda purposes. They have

also consistently noted that the existence of probable cause to

arrest is relevant to that analysis. Although Ketchum indicated

that the existence of probable cause is determinative of

custody, it never abrogated the totality-of-the-circumstances

test – to the contrary, it explicitly affirmed it. Moreover,

far from overruling cases like Wyatt and Kuba, which applied the

test to traffic stops, Ketchum cited them in support.

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Fifty years ago, in State v. Kalai, police went to the

defendant’s home to ask what he knew about a shooting that had

occurred two days prior. 56 Haw. 366, 369, 537 P.2d 8, 11

(1975). We noted that:

What constitutes custodial interrogation outside of the
police station, however, necessarily depends upon the
circumstances of the particular case; and whether the
compulsive factors with which Miranda was concerned are
present must be determined from the totality of the
circumstances. One important factor is the degree to which
the investigation has focused upon a specific individual,
for once a particular individual becomes a prime suspect,
he must be advised of his constitutional rights before any
attempt is made to interrogate him.

Id. (citations omitted).

We observed that the investigation had not yet “zeroed

in” on the defendant, that the defendant voluntarily let the

officers into his home, spoke with them freely, and that “[n]o

questions were asked which might have been calculated to elicit

admissions placing him at the scene” or linking him to the

weapon that was used. Id. at 370, 537 P.2d at 12. Considering

all the circumstances, we concluded that defendant was not in

custody.

Even after the United States Supreme Court held the

following year, in Beckwith v. United States, 425 U.S. 341, 347

(1976), that whether or not the defendant is the “focus” of the

investigation is immaterial, 11 this court continued to recognize

11 The Court held that the relevant question is whether the
defendant was subjected to a “custodial situation,” and noted that it is “the
(continued...)

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that the focus of the investigation is a significant factor.

See, e.g., Melemai, 64 Haw. at 481, 643 P.2d at 544; State v.

Patterson, 59 Haw. 357, 361, 581 P.2d 752, 755 (1978). In

Patterson, police responding to a report of a burglary in

progress at 3 a.m. briefly questioned the defendant outside of a

home; we held that Miranda warnings were not required. Citing

Beckwith, 425 U.S. at 347, we noted that the “focus of the

investigation upon the defendant, standing alone, will not

trigger the application of the Miranda rule,” but acknowledged

that it continued to be an “important factor.” Patterson, 59

Haw. at 361, 581 P.2d at 755. We emphasized that the test

requires consideration of the totality of the circumstances,

including probable cause:

Where the police, prior to questioning the individual, are
in possession of facts sufficient to effect an arrest
without a warrant based on probable cause, it is less
likely that the person confronted would be allowed to come
and go as he pleases. The degree of this likelihood may,
of course, depend upon the nature and gravity of the
offense, as well as other circumstances. In any event,
whether the defendant was in custody or otherwise deprived
of his freedom of action for Miranda purposes is to be
determined from the totality of the circumstances,
objectively appraised. These would include the place and
time of the interrogation, the length of the interrogation,
the nature of the questions asked, the conduct of the
police, and all other relevant circumstances.

Id. (emphasis added) (citations omitted).

(continued . . .)
compulsive aspect of custodial interrogation, and not the strength or content
of the government’s suspicions at the time the questioning was conducted,”
that determines whether Miranda warnings are required. Beckwith, 426 U.S. at
346-347 (quoting United States v. Caiello, 420 F.2d 471, 473 (2d Cir. 1969)).

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Patterson thus indicated that probable cause was

suggestive of custody – a circumstance that might serve as an

indicator that the point of arrest has arrived. 12

Following Patterson, this court continued to hold that

“[p]robable cause to arrest is . . . not determinative, but it

may play a significant role in the application of the Miranda

rule.” Melemai, 64 Haw. at 481, 643 P.2d at 544. 13 In Melemai,

the police were investigating a hit and run in which a jogger

was struck by a pickup truck. Id. at 480, 643 P.2d at 543. The

license plate of the vehicle involved in the accident was

registered to the defendant. Police went to the defendant’s

home, and the defendant arrived in a vehicle matching the

12 Justice Wilson suggests that Patterson adopted a bright-line rule
regarding the significance of probable cause. Dissent at 3-4. However,
respectfully, he fails to consider the context surrounding the passage he
quotes, which suggests to the contrary that all of the circumstances must be
considered:

No precise line can be drawn because each case must
necessarily turn upon its own facts and circumstances, but
we think that the California court in People v. Manis, 268
Cal.App.2d 653, 669, 74 Cal.Rptr. 423, 433 (1969) came as
close as any to delineating, generally, the outer
parameters beyond which on-the-scene interviews may not
proceed without the Miranda warnings:
“(P)ersons temporarily detained for brief questioning
by police officers who lack probable cause to make an
arrest or bring an accusation need not be warned
about incrimination and their right to counsel, until
such time as the point of arrest or accusation has
been reached or the questioning has ceased to be
brief and casual and become sustained and coercive.”

Patterson, 59 Haw. at 362-63, 581 P.2d at 755-56 (emphasis added).

13 In Melemai, we held that two factors — whether the investigation
had focused on the defendant and whether probable cause existed — “may play a
significant role in the application of the Miranda rule.” 64 Haw. at 481,
643 P.2d at 544.

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description given by a witness to the accident. Officers asked

the defendant to exit his vehicle and for his driver’s license.

When the defendant complied, they asked him “if he had hit

anyone with his car, and defendant answered in the affirmative.”

Id. The police officers then asked why the defendant had left

the scene, and the defendant answered. Id.

We held that the defendant’s admission that he hit the

jogger gave the police probable cause. “Inasmuch as the

totality of circumstances created the kind of coercive

atmosphere that Miranda warnings were designed to prevent,

custody attached and Miranda warnings were required. Based upon

our analysis, the defendant’s answer to the first question was

admissible while his answer to the second was not.” Id. at 482,

643 P.2d at 544.

We later revisited this issue in Ah Loo. The

defendant there was observed by police holding a beer while he

stood with a group of people; when officers “detained the group”

and asked the defendant his name, age, and residential address,

he admitted he was underage. 94 Hawai‘i at 209, 10 P.3d at 730.

We held that a defendant is not in custody if, during a

“temporary investigative detention,” the police officer “poses

noncoercive questions to the detained person that are designed

to confirm or dispel the officer’s reasonable suspicion.” Id.

at 211, 10 P.3d at 732. In other words, we clarified that “an

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individual may very well be ‘seized’” pursuant to search and

seizure doctrine “and yet not be ‘in custody,’ such that Miranda

warnings are required as a precondition to any questioning.”

Id. This court cited the rule from Melemai that “if neither

probable cause to arrest nor sustained and coercive

interrogation are present, then questions posed by the police do

not rise to the level of ‘custodial interrogation’ requiring

Miranda warnings.” Ah Loo, 94 Hawaiʻi at 210, 10 P.3d at 731.

In a parenthetical, we cited Melemai for the proposition that

“‘custody’ did not occur until after defendant’s admission of

culpability — uttered in response to [the] police officer’s

question — gave [the] officer probable cause to arrest.” Id. at

211, 10 P.3d at 732.

Accordingly, citing Melemai, we formulated the rule as

follows:

[I]f the detained person’s responses to a police officer’s
questions provide the officer with probable cause to arrest
or, alternatively, if officer’s questions become sustained
and coercive (such that the officer’s questions are no
longer reasonably designed to briefly confirm or dispel his
or her reasonable suspicion), the officer is — at that time
— required to inform the detained person of his or her
constitutional rights against self-incrimination and to
counsel, as mandated by Miranda and its progeny.

Id. at 212, 10 P.3d at 733 (first emphasis added).

Thus, up to and including our decision in Ah Loo, our

cases did not indicate that the existence of probable cause

alone was dispositive. Rather, it was a factor to be considered

in light of all the circumstances. Where probable cause

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developed during the course of the officer’s questioning of the

defendant — such as when the defendant admitted hitting a jogger

in Melemai — custody would attach.

That approach makes sense, since the questions and

responses would factor into assessing the coerciveness of the

situation from the defendant’s point of view. In Melemai,

probable cause developed at the scene, in the presence of the

defendant, when the defendant answered affirmatively to the

officer’s question “if he had hit anyone with his car.” 64 Haw.

at 480, 643 P.2d at 543. That question and the defendant’s

answer contributed to a coercive atmosphere of which the

defendant was aware. Id. at 482, 643 P.2d at 544; see also

State v. Hoffman, 73 Haw. 41, 54, 828 P.2d 805, 813 (1992)

(applying Melemai to hold that custody attached when the police

obtained probable cause because defendant admitted to possessing

a bottle of beer in a public park); State v. Russo, 67 Haw. 126,

135-36 & n.6, 681 P.2d 553, 560-61 & n.6 (1984) (officers went

to defendant’s apartment at 4 a.m. to question him about a

murder; Miranda warnings required after defendant told them that

he had recently purchased a handgun and that it was in his car,

which “matched” the description of a car used during the

murder).

A year after Ah Loo, we considered custody under

vastly different circumstances in Ketchum. There, a search

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warrant was executed by at least 60 officers at a home at 7 a.m.

Ketchum, 97 Hawai‘i at 111, 34 P.3d at 1010. The officers broke

into the house, encountered Ketchum and a co-defendant in a

bedroom, ordered them to show their hands, and within a minute

asked Ketchum for personal information including his address.

Considering all of the circumstances, including the display of

force by the officers, we concluded that Ketchum had been “de

facto” arrested since a reasonable person in his position would

have understood that they were being detained indefinitely. Id.

at 111-12, 127, 34 P.3d at 1010-11, 1026.

During the course of our analysis, we reviewed our

precedent, including Ah Loo, which we characterized as holding

that a detainee is in custody when they are “expressly or

impliedly accused of having committed a crime.” Id. at 124, 34

P.3d at 1023 (emphasis added). We acknowledged that “we look to

the totality of the circumstances,” id. at 122, 34 P.3d at 1021

(quoting Ah Loo, 94 Hawaiʻi at 210, 10 P.3d at 731), that “there

is no simple or precise bright line delineating when ‘the point

of arrest’ has arrived,” and that “no single factor, in itself,

is dispositive as to when a temporary investigative detention

has morphed into an arrest,” id. at 125, 34 P.3d at 1024. We

then adopted the following two-part, either/or test to determine

at what point the investigatory detention becomes custody:

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In summary, we hold that a person is “in custody” for
purposes of article I, section 10 of the Hawai‘i
Constitution if an objective assessment of the totality of
the circumstances reflects either (1) that the person has
become impliedly accused of committing a crime because the
questions of the police have become sustained and coercive,
such that they are no longer reasonably designed briefly to
confirm or dispel their reasonable suspicion or (2) that
the point of arrest has arrived because either (a) probable
cause to arrest has developed or (b) the police have
subjected the person to an unlawful “de facto” arrest
without probable cause to do so.

Id. at 126, 34 P.3d at 1025 (first emphasis added). 14

Although seemingly adopting a bright-line rule that

the existence of probable cause is dispositive, Ketchum did not

explicitly overrule our precedent indicating that the

determination of custody requires an evaluation of all the

circumstances. To the contrary, Ketchum expressly affirmed not

only the totality-of-the-circumstances test, but also Wyatt and

Kuba, both of which evaluated the totality of the circumstances

surrounding traffic stops:

The concurring and dissenting opinion “disagree[s] with the
totality of the circumstances formulation seemingly
adopted” by us “in this case.” Acoba and Ramil, JJ.,
concurring in part and dissenting in part . . . , at 129,
34 P.3d at 1028. However, this court consistently
addresses the question whether a defendant has been
subjected to custodial interrogation within the context of

14 One year after Ketchum, we again relied on Ah Loo in State v.
Kaleohano, 99 Hawai‘i 370, 378, 56 P.3d 138, 146 (2002). In Kaleohano, we
held that the defendant — who had been pulled over for a traffic violation
and detained on suspicion of OVUII — was not in custody. Without quoting the
either/or test from Ketchum, Kaleohano emphasized the importance of probable
cause for determining custody: “Ah Loo recognized that, ‘if neither probable
cause to arrest nor sustained and coercive interrogation are present, then
questions posed by the police do not rise to the level of “custodial
interrogation” requiring Miranda warnings.’ We, therefore, examine whether
[the police officer] had probable cause to arrest [the defendant].” Id. at
377, 56 P.3d at 145 (citation omitted) (quoting Ah Loo, 94 Hawai‘i at 210, 10
P.3d at 731).

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the totality of the circumstances. . . . We therefore do
not understand our opinion to be “adopt[ing]” a new
approach in analyzing whether custodial interrogation has
occurred for Miranda purposes.

Id. at 117 n.19, 34 P.3d at 1017 n.19 (emphasis added)

(citations omitted) (citing Ah Loo, 94 Hawaiʻi at 210, 10 P.3d at

731; Kuba, 68 Haw. at 188-90, 706 P.2d at 1309-10; Wyatt, 67

Haw. at 299, 687 P.2d at 549; Patterson, 59 Haw. at 361, 581

P.2d at 755; Kalai, 56 Haw. at 369, 537 P.2d at 11).

Furthermore, Ketchum did not present the circumstances

present here, where the officer had probable cause to arrest

before engaging with the defendant and did not communicate that

fact to the defendant. 15

2. The totality-of-the-circumstances approach, applied in
Wyatt and Kuba, is valid and applies to this case

We hereby clarify that the totality-of-the-

circumstances approach to traffic stops adopted in Wyatt and

Kuba and affirmed in Ketchum remains valid and applies to this

case. The existence of probable cause, while relevant, is not

dispositive, and the proper inquiry in determining whether a

defendant is in custody for Miranda purposes remains the

totality of the circumstances.

15 Although Officer Termeteet told Sagapolutele-Silva that she was
“speeding,” he did not advise her that her speeding was subject to criminal
sanctions. Speeding less than thirty miles per hour over the speed limit is
a non-criminal violation. See, e.g., State v. Fitzwater, 122 Hawai‘i 354,
378, 227 P.3d 520, 544 (2010), as amended (Apr. 5, 2010)
(remanding for entry of judgment of a non-criminal traffic infraction because
the evidence did not prove that the defendant exceeded the speed limit by at
least thirty miles per hour).

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Both our cases and federal courts are in accord that

traffic stops are treated under a totality-of-the-circumstances

analysis. In Berkemer v. McCarty, the United States Supreme

Court rejected a “rule under which questioning of a suspect

detained pursuant to a traffic stop would be deemed ‘custodial

interrogation’ if and only if the police officer had probable

cause to arrest the motorist for a crime,” explaining:

The threat to a citizen’s Fifth Amendment rights that
Miranda was designed to neutralize has little to do with
the strength of an interrogating officer’s suspicions.
And, by requiring a policeman conversing with a motorist
constantly to monitor the information available to him to
determine when it becomes sufficient to establish probable
cause, the rule proposed by respondent would be extremely
difficult to administer.

468 U.S. 420, 435 n.22 (1984).

The defendant in Berkemer was pulled over after a

state trooper saw him weaving in and out of traffic. After the

defendant exited his vehicle, the officer noticed he had trouble

standing and decided to charge him with a traffic offense and to

prevent him from leaving the scene. Id. at 423. The Supreme

Court held that Miranda warnings were not required, and

distinguished roadside stops from the circumstances at issue in

Miranda and its progeny. Id. at 441. First, during ordinary

traffic stops, detentions are usually brief and presumptively

temporary; second, traffic stops are usually conducted in

public, where the atmosphere is “substantially less ‘police

dominated.’” Id. at 439-40. While roadside stops may morph

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into custodial situations if the defendant is “subjected to

treatment that renders him ‘in custody’ for practical purposes,”

the Court did not find those circumstances present here. Id. at

440 (citation omitted). The Court explained,

Only a short period of time elapsed between the stop and
the arrest. At no point during that interval was
respondent informed that his detention would not be
temporary. Although [the arresting officer] apparently
decided as soon as respondent stepped out of his car that
respondent would be taken into custody and charged with a
traffic offense, [the officer] never communicated his
intention to respondent. A policeman's unarticulated plan
has no bearing on the question whether a suspect was ‘in
custody’ at a particular time; the only relevant inquiry is
how a reasonable man in the suspect's position would have
understood his situation.

Id. at 441-42.

As we explained in Wyatt, “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.’”

67 Haw. at 299, 687 P.2d at 549 (quoting Rhode Island v. Innis,

446 U.S. 291, 299 (1980)). The question of custody therefore

turns on the perceptions of a reasonable person in the

detainee’s position. 16 Ketchum, 97 Hawai‘i at 125, 34 P.3d at

16 Indeed, Sagapolutele-Silva faults the ICA for treating the OVUII
as a “separate and distinct” OVUII investigation in which probable cause had
not yet developed, and we agree that this bifurcation of the traffic stop
into two investigations for two crimes – while understandable given our
either/or test – does not reflect reality. A suspect probably does not
perceive two separate and concurrent investigations during a single police
encounter, and the existence of probable cause for one crime, but not the
other, is unlikely to impact whether a reasonable person in the suspect’s
position would perceive themselves as effectively under arrest.

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1024 (reciting the test as whether “[an] innocent person could

reasonably have believed that he [or she] was not free to go and

that he [or she] was being taken into custody indefinitely”

(quoting Kraus, 793 F.2d at 1109)). While “[a]n officer’s

knowledge or beliefs may bear upon the custody issue if they are

conveyed, by word or deed, to the individual being questioned,”

they “are relevant only to the extent they would affect how a

reasonable person in the position of the individual being

questioned would gauge the breadth of his or her ‘“freedom of

action.”’” Stansbury v. California, 511 U.S. 318, 325 (1994)

(citations omitted) (quoting Berkemer, 468 U.S. at 440). The

existence of probable cause that is not disclosed to the suspect

— as opposed to when a suspect is confronted with the officer’s

suspicions, or the evidence supporting them — is unlikely to

impact the suspect’s perceptions of the encounter. 17 By the same

17 Our review of other jurisdictions suggests that, consistent with
the principle that the objective perspective of the suspect controls,
probable cause usually fits into the totality-of-the-circumstances analysis
as follows:

[W]hile the place of the interrogation is a very
significant factor, it must be considered together with the
other surrounding circumstances. In ascertaining, as
called for by Miranda, whether the deprivation of freedom
of action was “significant” (i.e., whether the
circumstances were “likely to affect substantially the
individual’s ‘will to resist and compel him to speak where
he would not otherwise do so freely’”), it is particularly
important whether some indicia of arrest are present. A
Court is not likely to find custody for Miranda purposes if
the police were not even in a position to physically seize
the suspect, but is likely to find custody if there was
physical restraint such as handcuffing, drawing a gun,
(continued...)

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token, an after-the-fact determination that the police could

have arrested the detainee should play little role in

determining whether or not the detainee felt they were under

arrest.

As discussed earlier, see supra section IV.A.1, our

cases recognize that it is highly relevant when probable cause

develops during the course of questioning the defendant. See,

e.g., Melemai, 64 Haw. at 482, 643 P.2d at 544 (holding Miranda

warnings were required where probable cause developed at the

scene and custody attached); see also Ah Loo, 94 Hawaiʻi at 212,

10 P.3d at 733 (“[I]f the detained person’s responses to a

police officer’s questions provide the officer with probable

cause to arrest . . . the officer is — at that time — required

to [provide Miranda warnings].”). The defendant is present

(continued . . .)
holding by the arm, or placing into a police car. Merely
having the suspect move a short distance to facilitate
conversion does not itself constitute custody. Also
relevant are whether or not the suspect was “confronted
with evidence that was at least sufficient to establish
probable cause,” or was told that there was a warrant for
his arrest or, on the other hand, that he was free to leave
and, if the events occur at the station, whether or not
booking procedures were employed.

2 Wayne R. LaFave et al., Criminal Procedure § 6.6(f) (4th ed. 2021)
(emphasis added) (footnotes omitted); see, e.g., State v. Williams, 15 A.3d
753, 755 (Me. 2011) (explaining the factors used to determine whether a
suspect was in custody, including “the existence or non-existence of probable
cause to arrest (to the extent communicated to the defendant)” (emphasis
added)); People v. Null, 233 P.3d 670, 677 (Colo. 2010) (holding that the
defendant was in custody because, inter alia, defendant knew the police had
grounds to arrest him); State v. Ortiz, 382 S.W.3d 367, 373 (Tex. Crim. App.
2012) (noting that a suspect may be in custody “if the officer manifests his
belief to the detainee that he is a suspect”).

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during that questioning, and both the officer’s questions and

the defendant’s answers can contribute to a coercive atmosphere

of which the defendant is aware.

However, probable cause developed prior to the

officer’s questioning of the suspect is a far different matter.

While we have recognized that it is relevant to assessing

whether the defendant was in fact free to leave, see Patterson,

59 Haw. at 361, 581 P.2d at 755 (“Where the police, prior to

questioning the individual, are in possession of facts

sufficient to effect an arrest without a warrant based on

probable cause, it is less likely that the person confronted

would be allowed to come and go as he pleases.”), it has limited

relevance to assessing the coerciveness of the encounter from

the defendant’s point of view. The instant case provides a good

example: although Officer Termeteet told Sagapolutele-Silva that

she had been “speeding,” and although she acknowledged that to

be the case, there is nothing to indicate that Sagapolutele-Silva

understood that she had implicated herself in a crime. Indeed,

had she been going only three miles per hour slower, Officer

Termeteet would not have had probable cause to arrest her for

excessive speeding.

In Wyatt, we considered whether Miranda warnings were

required for “roadside questioning of the defendant after she

was stopped for operating a motor vehicle on a street in Waikiki

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without lighted headlamps in violation of the City’s traffic

code.” 67 Haw. at 298, 687 P.2d at 549. The officer there

directed the defendant to pull her vehicle over, asked for her

documents, and noticed a smell of liquor emanating from the

vehicle. He asked the defendant if she had been drinking, which

she “readily admitted.” Id. at 296-97, 687 P.2d at 547-48. He

then asked if she would be willing to perform a field sobriety

test, and she agreed. The test indicated she might have been

under the influence of intoxicants, and she was arrested. Id.

at 297, 687 P.2d at 548.

We held that the officer was not required to advise

the defendant of her Miranda rights before asking her if she had

been drinking, noting:

[T]he record does not reveal the intimidating or inherently
coercive factors usually extant when interrogation is
conducted in a custodial setting. Rather, what transpired
here may be more aptly described as on-the-scene
questioning of brief duration conducted prior to arrest in
public view. In short, the circumstances surrounding the
incident cannot support an inference that Miranda rights
were triggered yet ignored; for nothing in the record
suggests the setting was custodial or that the
interrogation was of a nature likely to subjugate the
defendant to the will of her examiner and undermine the
constitutionally guaranteed privilege against self-
incrimination.

Id. at 300-301, 687 P.2d at 550 (footnote omitted).

A year later, we affirmed the holding in Wyatt under

“almost indistinguishable” facts in Kuba. There, the defendant

was stopped by police after straddling two lanes and traveling

five miles per hour in a twenty-five mile per hour zone. Kuba,

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68 Haw. at 185, 706 P.2d at 1307. An officer stopped the

defendant, requested his license, and asked him to step out of

the vehicle. The officer observed that the defendant appeared

disoriented and unsteady on his feet. The officer told the

defendant the reason for the stop and informed him that he

suspected the defendant of driving while intoxicated. The

defendant responded that he had consumed four beers at a

downtown bar, and the officer asked him if he “normally gets

wasted on four beers.” Id. In response, the defendant stated

that he had “also smoked some marijuana.” Id. at 185-86, 706

P.2d at 1307. After failing a field sobriety test, the

defendant was arrested for driving under the influence of

alcohol in violation of HRS § 291-4 (1976). 18 Id. at 186, 706

P.2d at 1308.

As in Wyatt, we held that the officer was not required

to advise Kuba of her Miranda rights before asking questions.

Id. at 189, 706 P.2d at 1310. We noted that the officer’s

roadside questioning, “similar to that in Wyatt,” was composed

of “legitimate, straightforward, and noncoercive question[s]

necessary to obtain information to issue a traffic citation.”

Id. at 188-89, 706 P.2d at 1309-10.

18 This charge was later amended to a charge of driving while under
the influence of drugs in violation of HRS § 291-7 (1976). Id.

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Nothing in Wyatt or Kuba suggests that the existence

of probable cause should be dispositive of whether the defendant

was in custody. Significantly, the defendant in Wyatt had been

observed by the officer driving without her lights on, which we

noted was defined by the Traffic Code of the City and County of

Honolulu as a misdemeanor punishable by up to ten days in prison

for a first offense. Wyatt, 67 Haw. at 296 n.3, 687 P.2d at 547

n.3. Yet the existence of probable cause to arrest for that

criminal offense did not enter into this court’s consideration

in either case. 19 Rather, this court focused on the coerciveness

of the encounter viewed in light of the totality of the

circumstances. Wyatt, 67 Haw. at 299, 687 P.2d at 549; see also

Kuba, 68 Haw. at 189, 706 P.2d at 1309-10.

That approach should be upheld, especially in the

traffic context, because it allows police to adequately

investigate before deciding whether to arrest a suspect or to

simply issue a citation. See Patterson, 59 Haw. at 361-362, 581

P.2d at 755 (“The adoption of the Miranda rule . . . was never

intended to hamper law enforcement agencies in the exercise of

their investigative duties or in the performance of their

traditional investigatory functions.”). A rule that a detainee

19 We noted in passing that “[t]he obvious violation of the Traffic
Code gave [the officers] reason to seek information necessary for the
issuance of a citation.” Wyatt, 67 Haw. at 300, 687 P.2d at 549. However,
under HRS § 803-5 (1982), the officers could have arrested the defendant
since it was a criminal offense.

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is in custody from the moment probable cause exists, and must

accordingly be advised of their Miranda rights before any

questioning can take place, effectively requires police officers

to make an “‘all or nothing’ choice between arrest and

inaction,” which is precisely the situation that investigatory

detentions were intended to prevent. Ah Loo, 94 Hawaiʻi at 211,

10 P.3d at 732 (quoting Patterson, 59 Haw. at 363, 581 P.2d at

756); see also Kernan v. Tanaka, 75 Haw. 1, 38 n.23, 856 P.2d

1207, 1226 n.23 (1993) (“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.”).

Here, when Officer Termeteet approached Sagapolutele-

Silva’s vehicle, he noticed the odor of alcohol coming from

inside and, during the course of requesting her documents, noted

that she had red, watery, and glassy eyes. He suspected she may

have been drinking, and asked “if she can do the field sobriety

test to make sure she was safe to drive.” Under the bright-

line, either/or rule applied by the district court here, Officer

Termeteet would have been required to give Miranda warnings to

Sagapolutele-Silva as soon as he approached her vehicle, before

he could question her. If she had invoked her right to remain

silent or to have counsel present, Officer Termeteet would not

have been able to conduct a field sobriety test to determine

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whether she was safe to drive and would have been forced to

decide on other facts whether to arrest her or to simply cite

her and allow her to drive away. 20

A bright-line test focusing on probable cause does

not, therefore, serve the purpose of the Miranda rule: to

prevent the police from coercing suspects into answering

incriminating questions against their will. See Howes v.

Fields, 565 U.S. 499, 508–09 (2012) (“‘[C]ustody’ is a term of

art that specifies circumstances that are thought generally to

present a serious danger of coercion.”); Melemai, 64 Haw. at

482, 643 P.2d at 544 (holding Miranda warnings were required

when “the totality of circumstances created the kind of coercive

atmosphere that Miranda warnings were designed to prevent”). In

this case, Officer Termeteet’s questioning was properly limited

to “that which was minimally necessary for him to decide upon a

reasonable course of investigatory action.” Patterson, 59 Haw.

at 364, 581 P.2d at 756.

For the foregoing reasons, we reaffirm that whether or

not a defendant is “in custody” requires “objectively appraising

the totality of the circumstances.” Melemai, 64 Haw. at 481,

20 Officer Termeteet was not required by law to arrest Sagapolutele-
Silva for excessive speeding — as he testified at the suppression hearing, he
had the discretion to issue a citation for excessive speeding and allow her
to drive away. But his decision on whether to cite or arrest her had
significant public safety consequences. As he testified, he wanted to
administer the SFST because “I don’t want her, you know, cite her for the
excessive speeding and then she hurts herself or another person afterwards.”

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643 P.2d at 544. Courts may consider probable cause as part of

that inquiry — and indeed, they should if the circumstances

warrant it, such as when the suspect is confronted with the

facts that establish probable cause. But the ultimate

touchstone is whether, under an objective view of the totality

of the circumstances, the de facto point of arrest has arrived.

Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024.

B. Under the Totality of the Circumstances, Sagapolutele-Silva
Was Not in Custody

The totality-of-the-circumstances custody analysis

looks for “any . . . event[s] or condition[s] that betoken[] a

significant deprivation of freedom, ‘such that an innocent

person could reasonably have believed that he or she was not

free to go and that he or she was being taken into custody

indefinitely.’” Id. (alterations omitted) (quoting Kraus, 793

F.2d at 1109). And “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.’” Wyatt,

67 Haw. at 299, 687 P.2d at 549 (quoting Innis, 446 U.S. at

299). Relevant factors 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.” Id.

(alterations omitted) (quoting State v. Paahana, 66 Haw. 499,

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503, 666 P.2d 592, 595 (1983)). “[W]hether the investigation

has focused on the suspect and whether the police have probable

cause to arrest him prior to questioning” may be relevant, but

not dispositive. Melemai, 64 Haw. at 481, 643 P.2d at 544. A

temporary investigative detention — such as a routine traffic

stop — is often not custodial under a totality-of-the-

circumstances analysis. Ah Loo, 94 Hawaiʻi at 211, 10 P.3d at

732 (“[G]enerally speaking, a person lawfully subjected to a

temporary investigative detention by a police officer . . . is

not subjected to ‘custodial interrogation’ when the officer

poses noncoercive questions to the detained person that are

designed to confirm or dispel the officer’s reasonable

suspicion.” (Citation omitted.)).

In considering whether a temporary detention has

“morphed into an arrest,” this court looks for factors

traditionally associated with arrest, such as “handcuffing,

leading the detainee to a different location, subjecting him or

her to booking procedures, ordering his or her compliance with

an officer’s directives, using force, or displaying a show of

authority beyond that inherent in the mere presence of a police

officer.” Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024 (quoting

Kraus, 793 F.2d at 1109); see also People v. Null, 233 P.3d 670,

676-77 (Colo. 2010) (holding traffic stop became custodial after

the defendant failed several sobriety tests, including a

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portable breath test, police surrounded the defendant and

prevented him from walking away, and the defendant was detained

for fifteen minutes).

Here, the totality of the circumstances show that

Sagapolutele-Silva was not in custody for purposes of article I,

section 10 of the Hawaiʻi Constitution until after the SFST.

Although the district court concluded that “legal custody had

attached,” it made no finding that Sagapolutele-Silva’s freedom

of movement had been curtailed to a degree “that betoken[ed] a

significant deprivation of freedom such that an innocent person

could reasonably have believed that he or she was not free to go

and that he or she was being taken into custody indefinitely.”

Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024 (quotation marks,

citation, and alterations omitted). And indeed, the relevant

circumstances did not support such a finding. Although the

officers had probable cause to arrest Sagapolutele-Silva for

excessive speeding and she had become the focus of an OVUII

investigation, the officers’ conduct did not suggest that she

was in fact under arrest until after the SFST. Before the SFST,

Sagapolutele-Silva was not told she was being arrested; she was

not handcuffed or taken to the police station; there were, at

most, two officers present during the traffic stop, which

occurred “in public view,” Wyatt, 67 Haw. at 300, 687 P.2d at

550, and neither officer used physical force or displayed “a

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show of authority beyond that inherent in the mere presence of a

police officer,” Ketchum, 97 Hawai‘i at 125, 34 P.3d at 1024; see

Patterson, 59 Haw. at 363-64, 581 P.2d at 756 (finding no

custody where “[n]o guns were drawn and kept upon the

defendant,” “he [was not] confronted and subjected to an

overbearing show of force,” “[t]he interview itself was brief,”

and “[t]he questions were not couched in accusatory terms”).

Although Sagapolutele-Silva exited her vehicle, that does not

necessarily turn the traffic stop into a custodial arrest. See

Kernan v. Tanaka, 75 Haw. 1, 38, 856 P.2d 1207, 1226 (1993)

(“Ordering the driver to exit the vehicle is an extension of the

[temporary investigative] seizure that must be accompanied by

sufficient facts to support the officer’s action.”).

Under a totality-of-the-circumstances analysis,

Sagapolutele-Silva was not in custody up to and during her

performance on the SFST. Objectively viewed, the circumstances

of the traffic stop did not rise to the level of a de facto

arrest until after that point. Ketchum, 97 Hawai‘i at 125, 34

P.3d at 1024. “Custody” is a necessary component of custodial

interrogation, and so the conclusion that Sagapolutele-Silva was

not in custody ends the inquiry — we need not and do not

consider whether the officers “interrogated” her during the

encounter. Her statements made during this pre-arrest period

accordingly need not be suppressed for want of Miranda warnings.

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In light of our conclusion that there was no custody in this

case until after the SFST, any evidence suppressed as fruit of

the poisonous tree likewise need not be suppressed. We

therefore vacate the district court’s order suppressing all of

Sagapolutele-Silva’s statements up to, during, and after her

performance on the SFST. 21

V. CONCLUSION

For the foregoing reasons, the ICA’s June 19, 2020

judgment on appeal and the June 22, 2020 amended judgment on

appeal are affirmed in part and vacated in part, and the

district court’s June 7, 2019 judgment and August 26, 2019

amended judgment are vacated. This case is remanded to the

district court for further proceedings consistent with this

opinion.

Brian R. Vincent /s/ Mark E. Recktenwald
for Petitioner and Respondent
State of Hawai‘i /s/ Paula A. Nakayama

Alen M. Kaneshiro /s/ Paul B.K. Wong
for Respondent and Petitioner
Tiana F.M. Sagapolutele-Silva

21 The district court suppressed Sagapolutele-Silva’s statement that
she had fewer drinks than her friends on the grounds that it was fruit of
earlier improper questioning. At the time she made that statement, she had
been advised that she was under arrest. We do not opine on whether some
other ground might exist to suppress that statement.

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