According to the undisputed findings of the court, (1) "Detective Evangelista, acting upon the [undisclosed] information he had, gathered six other officers to proceed to [Respondent's] home to seek Dion Alvarez" who was "wanted for a felony"; (2) when the police arrived at Respondent's home they "surrounded it"; "[t]hree officers covered the back, officers were on either side and two officers approached the front of the home"; (3) they had neither an arrest warrant or search warrant, (4) "[a]ll officers were armed"; (5) "[a]ll officers were either in uniform or clearly identified as police"; (6) "Officer Feliciano and another uniformed officer knocked on [Respondent's] door"; (7) "Officer Feliciano asked [Respondent] if [her son,] Dion Alvarez was there; [Respondent] responded . . . 'No, he not here, rumors were he was in Puna'"; (8) Officer Feliciano requested permission to enter the home and [Respondent] refused entry"; (9) Officer Feliciano informed Detective Evangelista of . . . his conversation with [Respondent]"; (10) "Detective Evangelista went to the porch area and was standing near the front door; [a]nother uniformed officer was . . . on the steps leading to the porch"; (11) "[Respondent] was requested by Detective Evangelista to come out of the house on to the front porch"; (12) "Detective Evangelista . . . questioned [Respondent] about Dion Alvarez"; (13) "During the questioning of [Respondent], Detective [Evangelista] told [Respondent] that if he had to seek a search warrant and Dion was found in [Respondent's] home, [Respondent] could be arrested for Hindering Prosecution." (Capitalization omitted.)
The majority states, "At the times Officer Feliciano questioned [Respondent] and [Detective] Evangelista first reiterated the same questions, [Respondent] was neither in custody nor interrogated." SDO at 3 (emphases added). But Miranda is not limited to instances where a person "is taken into custody," but also extends to instances in which "a person . . . has been . . . otherwise deprived of his or her freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis added). It is apparent based upon the circumstances found by the circuit court that Respondent was deprived of her freedom in a significant way. Cf. State v. Quino, 74 Haw. 161, 172-73, 840 P.2d 358, 363-64 (1992) (holding that a person is seized within the meaning of article I, section 7 of the Hawai`i Constitution when questioning during a stop ceases to be conversational and becomes intrusive and accusatory in nature).
And interrogation consists of express questioning or words reasonably likely to elicit an incriminating response. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) (concluding that "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect"). Plainly there was express questioning by Detective Evangelista. Assuming the relevance of his information, his suspicion that Dion was on the premises, and Respondent's prior denial of Dion's presence, Detective Evangelista's repetition of Office Feliciano's questions was reasonably likely to elicit an incriminating response. That Detective Evangelista should have known this was confirmed by his follow-up threat to prosecute Respondent if her refusal to allow a search of the premises produced Dion.
In concluding that "[Respondent's] statement in [finding] No. 34
that 'No, you can't come into my house. He's not here. He's in Puna,'
was erroneously suppressed[,]" SDO at 4, the majority focuses on the
fact that Respondent's second denial
did not follow, but preceded Detective Evangelista's coercive warning
that he would prosecute Respondent if Dion was
discovered on the premises. In doing so the majority fails to adhere to
an objective view of the total circumstances test that
it purports to apply from State
v. Ketchum, 97 Hawai`i 107, 119, 34 P.3d 1006, 1018 (2001)
(explaining that the
determination of whether a police officer has subjected a person to
interrogation is objectively assessed under "the totality
of the circumstances" including factors such as "the conduct of the
police, the nature of the questions asked, and any other
relevant circumstance"). For in light of Detective Evangelista's prior
"discussion with [Respondent] at her residence
during which he informed [Respondent] that her son was wanted . . . and
that it was best if he turned himself in to the
police . . . [and inquiry of whether] her son had contacted her[,]" the
display of police force, the encirclement of
Respondent's home by the police, and Officer Feliciano's prior
questioning of Respondent, Detective Evangelista's
subsequent repetition of the same questions asked by Officer Feliciano,
can only be viewed objectively as conveying
disbelief and rejection of her responses to Officer Feliciano. Under
the circumstances, then, viewed in toto, Detective
Evangelista's questioning extended beyond the so called brief
confirmation of or attempt to dispel reasonable suspicion
approved in Ketchum,
but rather, police questioning had become sustained and coercive so as
to require the giving of
Miranda warnings. Id. at 123, 34 P.3d at 1022.
1. The responses
of Respondent to Officer Feliciano were not suppressed.