State v. Vasconcellos ( 2022 )

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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
02-NOV-2022
10:16 AM
Dkt. 17 SO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________
STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellant,
vs.
MICAH S.K. VASCONCELLOS, Respondent/Defendant-Appellee.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-18-02776)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, and
Circuit Judge Wong, assigned by reason of vacancy,
with McKenna, J., dissenting, and Wilson, J., dissenting)
I. INTRODUCTION
Petitioner/Plaintiff-Appellant State of Hawai‘i (State)
filed a timely application for a writ of certiorari from the
July 2, 2020 judgment on appeal of the Intermediate Court of
Appeals (ICA) entered pursuant to the ICA’s June 5, 2020 Summary
Disposition Order (SDO), which affirmed the May 28, 2019
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judgment of the District Court of the First Circuit. 1 The
district court’s judgment granted Respondent/Defendant-Appellee
Micah S.K. Vasconcellos’s Motion to Suppress Statements after
finding that Vasconcellos was subject to custodial interrogation
without being given Miranda warnings.
Under our decision in State v. Sagapolutele-Silva, 151
Hawai‘i 283, 511 P.3d 782 (2022), and for reasons set forth
therein, Vasconcellos was not in custody at the time he was
asked the medical rule-out questions because the circumstances
of his stop did not rise to that of a formal arrest. In holding
otherwise, the ICA erred.
II. BACKGROUND
Vasconcellos was stopped by a Honolulu Police
Department (HPD) officer for Reckless Driving after turning left
from a straight-only lane and almost hitting a pedestrian.
During the encounter, Vasconcellos acknowledged that he had seen
the pedestrian but asserted that he had stopped for and/or
swerved around the pedestrian. The officer disagreed. While
speaking to Vasconcellos, the officer noticed indicia of
intoxication and asked Vasconcellos to exit his vehicle and
participate in a Standardized Field Sobriety Test (“SFST”);
1 The Honorable Summer M.M. Kupau-Odo presided.
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Vasconcellos consented. The officer then asked Vasconcellos the
medical rule-out questions and Vasconcellos answered “no” to
each.
Vasconcellos was arrested and charged with Operating a
Vehicle Under the Influence of an Intoxicant (OVUII) in
violation of Hawai‘i Revised Statutes (HRS) § 291E-61(a)(1)
(Supp. 2018) 2 and Reckless Driving in violation of HRS § 291-2
(2007) 3. As relevant here, Vasconcellos moved to suppress his
answers to the medical rule-out questions. 4 The district court
ruled that Vasconcellos was in custody at the time these
2 HRS 291E-61(a)(1) provides in relevant part:
(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[.]
3 HRS § 291-2 provides: “Whoever operates any vehicle . . .
recklessly in disregard of the safety of persons or property is guilty of
reckless driving of vehicle . . . and shall be fined not more than $1,000 or
imprisoned not more than thirty days, or both.”
4 Vasconcellos’s motion to suppress also sought to suppress all of
his statements subsequent to the traffic stop. The district court granted
this motion in full. On appeal, the ICA only affirmed the district court’s
suppression of Vasconcellos’s answers to the medical rule-out questions while
vacating the district court’s suppression of Vasconcellos’s other statements,
including Vasconcellos’s statements after being told the reasons for the
investigatory stop and being asked to participate in the field sobriety test,
and Vasconcellos’s performance on the field sobriety test.
In its application for certiorari, the State challenges the
district court’s suppression of Vasconcellos’s answers to the medical rule-
out questions. Vasconcellos did not file an application for certiorari.
Accordingly, this order does not address the suppression of Vasconcellos’s
other statements.
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questions were asked, and the ICA affirmed that finding. The
ICA acknowledged that the test for determining whether a suspect
is in custody requires consideration of the totality of the
circumstances, but emphasized the existence of probable cause to
arrest Vasconcellos for Reckless Driving. State v.
Vasconcellos, 147 Hawai‘i 145, 464 P.3d 933, 2020 WL 3027399, at
*4 (App. June 5, 2020) (SDO). The ICA also held that the
medical rule-out questions constituted interrogation. Id. at
*5.
A. District Court Suppression Proceedings
On May 28, 2019, the district court held a hearing on
Vasconcellos’s motion to suppress. After hearing testimony from
the State’s sole witness, HPD Officer Ross Borges, the district
court found that “there was custodial interrogation at the point
of Officer Borges’s stop of Mr. Vasconcellos’s vehicle,” and
entered a written order granting Vasconcellos’s motion to
suppress.
First, on the issue of custody, the court held that
because Officer Borges saw Vasconcellos “almost killing a
pedestrian . . . . there was definitely probable cause for a
reckless driving arrest.” Further, “once the vehicle was
stopped and Officer Borges observed the defendant’s bloodshot
eyes, slurred speech, and the odor of alcohol, he also had
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probable cause to arrest the defendant for OVUII.” The district
court noted that Officer Borges “even testified that once he
stopped the vehicle, Mr. Vasconcellos was not free to leave.”
Accordingly, Vasconcellos was “definitely in custody for Miranda
purposes.”
Second, the district court found that Vasconcellos was
interrogated from the moment that he was pulled over. The court
suppressed all of Vasconcellos’s statements, including his
response to why he was being stopped and whether he wished to
participate in the SFST. 5
The State appealed.
B. ICA Proceedings
The State raised one point of error to the ICA: “The
district court erred in concluding that Vasconcellos was in
custody as soon as Officer Borges stopped him or alternatively
as soon as Officer Borges observed Vasconcellos’ indicia of
intoxication and erred in suppressing all statements made by
Vasconcellos and evidence of Vasconcellos’ performance on the
SFST.” The State did not specifically challenge the district
5 In addition, the district court found that the SFST would not
have been administered if Vasconcellos had not answered the medical rule-out
questions, and therefore Vasconcellos’s performance on the SFST was fruit of
the poisonous tree and should be suppressed. The ICA vacated this holding,
and it is not at issue here.
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court’s finding that the medical rule-out questions were
interrogation.
The ICA affirmed the district court in part, holding
that Vasconcellos’s answers to the medical rule-out questions
were properly suppressed. Id. at *6. However, the ICA vacated
the district court’s order as to Vasconcellos’s other
statements, including the results of the SFST, after finding
they were not the product of custodial interrogation. Id.
The ICA held that when Vasconcellos told Officer
Borges that he had seen the pedestrian and stopped and/or
swerved around her — demonstrating he had seen her and was
subjectively aware of the risk of hitting her — Officer Borges
acquired probable cause to arrest Vasconcellos for Reckless
Driving – even though there was not probable cause for an OUVII
arrest. Id. Accordingly, the ICA agreed with the district
court that Vasconcellos was in custody and “Miranda warnings
were warranted prior to any interrogation.” Id. at *5.
The ICA also agreed with the district court that the
medical rule-out questions amounted to interrogation. Id.
(quoting State v. Sagapolutele-Silva, 147 Hawai‘i 92, 102, 464
P.3d 880, 890 (App. 2020)). Thus, the ICA affirmed the district
court’s suppression of Vasconcellos’s responses to the medical
rule-out questions because “Vasconcellos was subjected to a
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custodial interrogation without having first been given Miranda
warnings.” Id. at *6.
The State filed a timely application for certiorari.
C. Application for Writ of Certiorari
The State raises the issues of custody and
interrogation in its application for certiorari:
1. Whether the ICA gravely erred in holding that
Respond[e]nt-Defendant-Appellee, Micah Vasconcellos
(Vasconcellos) was in custody as soon as Honolulu Police
Department (HPD) Officer Ross Borges pulled him over.
2. Whether the ICA gravely erred in holding that the
medical rule-out questions asked as part of the Standard
Field Sobriety Test (SFST) are interrogation.
3. Whether the ICA gravely erred in suppressing
Vasconcellos’ answers to the medical rule-out questions.
Vasconcellos did not file a response.
III. DISCUSSION
In our recent decision in Sagapolutele-Silva, we held
that whether or not a defendant is “in custody” requires
“objectively appraising the totality of the circumstances.” 151
Hawai‘i at 299, 511 P.3d at 798 (citing State v. Melemai, 64 Haw.
479, 481, 643 P.2d, 541, 544 (1982)). There, we explained that
the court 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
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custody indefinitely.’” Id. (alterations in original) (citing
State v. Ketchum, 97 Hawai‘i 107, 125, 34 P.3d 1006, 1024
(2001)).
A temporary investigative detention such as a traffic
stop is assessed under a totality of the circumstances analysis.
See Sagapolutele-Silva, 151 Hawai‘i at 299, 511 P.3d at 798
(citing State v. Ah Loo, 94 Hawai‘i 207, 211, 10 P.3d 728, 732
(2000)). 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.” Id. at 299, 511 P.3d at 798 (quoting Ketchum, 97
Hawai‘i at 125, 34 P.3d at 1024). 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. at 299, 511 P.3d at 798 (quoting
State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592, 595 (1983)),
as well as “whether the investigation has focused on the suspect
and whether the police have probable cause to arrest him prior
to questioning.” Melemai, 64 Haw. at 481, 643 P.2d at 544.
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Here, the totality of the circumstances show that
Vasconcellos was not in custody. Although the district court
acknowledged Officer Borges’s testimony that Vasconcellos “was
not free to leave,” the district court made no finding that
Vasconcellos’s freedom of movement had been curtailed to a
“degree associated with formal arrest.” Berkemer v. McCarty,
468 U.S. 420, 440 (1984). Indeed, the record did not establish
that his freedom had been limited to that extent. Vasconcellos
was not told he was being arrested; he was not handcuffed or
taken to the police station; there were, at most, two officers
present during the traffic stop; and Officer Borges did not use
physical force or display “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; see State v. Patterson, 59 Haw.
357, 363-64, 581 P.2d 752, 756 (1978) (finding no custody where,
inter alia, “[n]o guns were drawn and kept upon the defendant”).
Although Officer Borges asked Vasconcellos to step out of his
car and over to the sidewalk, that alone is insufficient to 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.”).
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Thus, under a totality of the circumstances analysis,
Vasconcellos was not in custody at the time Officer Borges asked
the medical rule-out questions, and Miranda warnings were not
required. 6
IV. CONCLUSION
For the foregoing reasons, the ICA erred in affirming
the district court’s suppression of Vasconcellos’s responses to
the medical rule-out questions. The ICA’s July 2, 2020 judgment
on appeal and the district court’s May 28, 2019 judgment are
vacated as to the suppression of those responses. In all other
respects, the judgment of the ICA is affirmed. This case is
remanded to the district court for further proceedings
consistent with this order.
DATED: Honolulu, Hawai‘i, November 2 2022.
Brian R. Vincent, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Alen M. Kaneshiro,
for respondent /s/ Paul B.K. Wong
6 Given that Vasconcellos was not in custody, we need not reach the
question of interrogation to conclude that Miranda warnings were not
required.
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