NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-19-0000326

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellant, v.

GILBERT BALAI, SR., Defendant-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT

(CASE NO. 5CPC-18-0000038)

MEMORANDUM OPINION

(By: Ginoza, C.J., and Wadsworth, J.,

and McCullen, J., dissenting)

On February 13, 2018, Defendant-Appellee Gilbert Balai,

Sr. (Balai) was charged by Felony Information with Assault in the

Second Degree, in violation of Hawaii Revised Statutes (HRS)

§ 707-711(1)(d) (2014 & Supp. 2016).1/ Prior to his arrest, Balai

made incriminating statements in the presence of Kaua#i Police

Department (KPD) police officers, who were investigating a

1/ HRS § 707-711 provides, in relevant part:

Assault in the second degree. (1) A person commits

the offense of assault in the second degree if:

. . . .

(d) The person intentionally or knowingly causes

bodily injury to another with a dangerous

instrument[.]

HRS § 707-700 (2014) defines "[d]angerous instrument" for purposes

of Chapter 707 to mean "any firearm . . . or other weapon, device, instrument,

material, or substance, whether animate or inanimate, which in the manner it

is used or is intended to be used is known to be capable of producing death or

serious bodily injury."

Electronically Filed

Intermediate Court of Appeals

CAAP-19-0000326

18-FEB-2022

07:55 AM

Dkt. 71 MO
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reported assault. The Circuit Court of the Fifth Circuit2/

suppressed all of the statements made by Balai. 

Plaintiff-Appellant State of Hawai#i (State) appeals

from the "Order Determining That All Statements [Balai] Made to

the [KPD] Were Not Voluntarily Made and Are Excluded from Use at

Trial" (Voluntariness Order), entered on April 4, 2019, in the 

Circuit Court. On appeal, the State contends that the Circuit

Court erred in suppressing some of the statements Balai made

while in the presence of KPD police officers, because those

statements were not the product of custodial interrogation.3/

For the reasons explained below, we affirm the

Voluntariness Order and remand the case to the Circuit Court for

further proceedings.

I. Background

On May 30, 2018, the State filed a motion to determine

the voluntariness of the statements Balai made to the police

(Voluntariness Motion) in the course of the KPD's investigation. 

The Deputy Prosecuting Attorney (DPA) asserted in an attached

declaration (DPA Declaration) that statements made by Balai to

KPD Officer Kristopher Breyer (Officer Breyer) on or about

February 11, 2018, "were made voluntarily and spontaneously, and

not as a result of custodial interrogation." The Voluntariness

Motion was based on the DPA Declaration, a supporting memorandum,

"and the records and files of this case." 

The Voluntariness Motion was heard on March 18, 2019 

(Voluntariness Hearing). At that time, Officer Breyer testified

as follows: At approximately 12:40 a.m. on February 11, 2018,

2/ The Honorable Kathleen N.A. Watanabe presided.

3/ In the notice of appeal, the State also appealed from the Circuit

Court's April 4, 2019 "Order Denying State's Motion for Findings of Fact,

Conclusions of Law and Order Concerning Denial of State's Motion to Determine

Voluntariness of the Statements Defendant Made to the Police Heard on

March 18, 2019." However, the State's opening brief includes no point of

error or argument regarding this April 4, 2019 order, and the State's reply

brief confirms that "[t]he State has not asserted a point of error concerning

the trial court failure to enter findings of fact and conclusions of law to

correspond to its suppression order." (Underscoring omitted.) Any such issue

is thus deemed waived. See Hawai#i Rules of Appellate Procedure Rule

28(b)(4).

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Officer Breyer was assigned to patrol in the Kapa#a district and

responded to a dispatch call involving an alleged assault at 310

Apana Road in Wailua (310 Apana Road). The dispatch call

indicated an assault involving a knife, and Officer Breyer "knew

the two names . . . of the involved parties[,]" including that

"[Balai's] name was provided on the way to the call" as an

involved party. 

Officer Breyer was wearing a body-worn camera as he

responded to the dispatch call. The resulting audio-visual

recording (Body Cam Video) was entered into evidence and played

during Officer Breyer's testimony at the Voluntariness Hearing. 

Officer Breyer testified that on his way to the scene,

he came across Dominic Barretto (Barretto), who "looked injured

in his stomach area" and had "blood on him[.]" The Body Cam

Video showed Officer Breyer and another KPD officer, in a

separate KPD vehicle, briefly interact with Barretto before

continuing to 310 Apana Road. Officer Breyer asked Barretto,

"You . . . Gilbert?" to which a voice replies, "Dominic,

Dominic," before Officer Breyer then tells Barretto to "Hang

tight Dominic." The State also asserts in its opening brief that

"[Officer] Breyer heard Dominic say that Gilbert was at the

residence with a knife." 

The Body Cam Video then showed Officer Breyer and the

other KPD officer briefly exit their vehicles along the road near

where they encountered Barretto, and quickly look around. 

Officer Breyer is heard to say, "gotta find the knife." The KPD

officers are then shown driving a short distance to 310 Apana

Road. Upon entering the 310 Apana Road property, Officer Breyer

is heard asking various individuals where "Gilbert" is, and

eventually finds Balai in the backyard working on a fence. 

During his testimony, Officer Breyer explained:

[DEFENSE COUNSEL:] You're directed to the back of the

-- you ask, "Where's -- where's Mr. Balai?" and you're

directed to the back, correct? Gilbert. Where's Gilbert? 

You go to the back, right?

[OFFICER BREYER:] That's correct.

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Officer Breyer testified that he approached and made contact with

Balai in the backyard near a fence line. When Officer Breyer

first encountered Balai, he was "already named as a person of

interest in this[.]" 

The Body Cam Video showed that as Officer Breyer first

approached Balai in the backyard, the officer called out, "Hey,

Gilbert, . . . Kaua#i Police." As Officer Breyer came closer to

Balai, a knife was visible, sticking upright in the ground a few

feet from Balai. Officer Breyer then said, "Gilbert, you can

turn and face me." Balai responded, but continued to work on the

fence. 

Officer Breyer then said, "OK, so, we just got called

here. We gotta figure out what's going on, OK?" Balai

responded, "Nothing is going on," followed by other statements,

while pausing from his work on the fence. Officer Breyer then

asked Balai, "can you come sit down at the [nearby] table for me

and we can talk story a little bit about this," but Balai

responded with something about continuing to work on the fence. 

Officer Breyer replied, "Okay, you tie 'em [the fencing] down. 

You tie 'em down." Balai then resumed his efforts on the fence,

while Officer Breyer remained at a distance watching. During the

time that Balai continued working on the fence, he also continued

talking. 

Upon finishing his work on the fence, Balai immediately

said to Officer Breyer, "Grab my knife, come over there," as

Balai pointed first toward the knife sticking upright in the

ground and then to a nearby table. Balai then walked toward the

table. When Balai repeated, "Grab my knife," Officer Breyer

responded in part, "come grab a seat, we'll grab 'em," and fell

in behind Balai walking to the table. As they approached the

table and Balai took a step away, Officer Breyer again said,

"come grab a seat," and placed his right hand across Balai's back

to Balai's right shoulder to keep Balai moving forward toward the

table. During the time that Officer Breyer escorted Balai to the

table, at least one other KPD officer was visible near the table. 

Balai then sat at the table. 

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Regarding the encounter, Officer Breyer testified:

[DEFENSE COUNSEL:] Okay. So you let him work on the

fence a little bit more, and then -- and then you bring him

over to the table and you have him sit down, correct?

[OFFICER BREYER:] That's correct.

Q. And at that point, he's not free to go, correct?

A. At that time, he's in investigative detainment.

Q. My question is extremely specific. Was he free to

go, yes or no?

A. He was not free to leave the area at that point.

Q. Okay. Good. So -- and the reason why we know he

was not free to go is you -- not only do you have him sit

down, you place him in handcuffs, correct?

A. That's correct.

Q. Okay. And -- and we can see -- and I'm not going

to belabor the point, but we can see you do attempt to call

-- first initially Mirandize him, right?

A. That's correct.

Q. And the reason why you Mirandize him is because he

is a suspect in this case, correct?

A. That's correct.

Q. And he's not free to go, correct?

A. That's correct.

Q. He's in custody for all intents and purposes? You

may call it a detainment, but he's being detained, he's in

custody?

A. He's in investigative detainment.

The Body Cam Video showed that Balai, once seated at

the table, began talking. Officer Breyer repeatedly attempted,

without success, to advise Balai of his rights, Balai continued

to talk, and Officer Breyer allowed him to do so. Balai's

statements appear to include an account of what happened between

him and Barretto. At one point during a pause, Officer Breyer

asked Balai if he was "calm," to which Balai responded, "Yeah, I

tell you what happened." Balai then continued talking. After

Balai stopped talking, Officer Breyer said to Balai, "Gilbert, so

what I'm gonna do right now is, cause I don't know what's going

on, I'm gonna put some handcuffs on you, okay? This is just

until I can figure out what's happening, alright?" Officer

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Breyer then handcuffed Balai. 

At the conclusion of the Voluntariness Hearing, the

Circuit Court ruled as follows:

THE COURT: . . . . Based on the Court's review of

the body cam video, based on your respective arguments, the

Court is in agreement with the defense. The statements were

certainly tainted.

I want to state on the record that the officer had

ample opportunity to Mirandize the defendant. Granted, the

defendant made it difficult at the first get-go, but on the

second review of the video, what became very apparent was

from the time that the handcuffs were placed on Mr. Balai up

until the time the Miranda warnings were actually given, as

[defense counsel] pointed out, we're talking about four

minutes passed. And Mr. Balai was speaking. He was not

speaking in an agitated voice. He was -- there was many

opportunities for the officer to give the Miranda warnings

even at that point. There's even a second officer on the

video who was asking something at one point.

You know, frankly, it's a situation from the get-go --

when Mr. Balai was first approached, he was pretty much

allowed to do whatever he wanted to do. First he's allowed

to finish working on the fence that he's -- I guess the hog

wire that he's trying to tie, and then he's allowed to sit

down. He's allowed to just ramble on and on and on. 

As I said, I understand the difficulties the officer

had in trying to Mirandize the first time, but basically the

officer gave up and allowed Mr. Balai to ramble and then

later on, you know, missed many opportunities or let a lot

of opportunities pass when he could have properly Mirandized

Mr. Balai.

I know that the State wants to break it down into like

parts and wants to basically justify how each part would

work independently or separate. The Court finds that it's

all tainted, so the statements are out.

. . . .

THE COURT: . . . . You know, what I'm saying

basically is that before Mr. Balai continued to say anything

more, he should have been Mirandized . . . at the outset.

[DPA]: At the outset.

Now, but regarding when the officer first arrived on

scene, he talked to Mr. Balai and they said, "Oh, let's go

sit down." He let Mr. Balai finish what he's doing. Mr.

Balai says, "Oh, that's my -- forget my knife." That's

considered tainted as well, your Honor?

THE COURT: All of it. You know, as I said, the

officer had ample opportunity to Mirandize Mr. Balai from

the very outset, when he first approached Mr. -- Mr. Balai. 

Mr. Balai even answered on the -- on the video that he knew

he was being detained.

You know, basically you have the officer, you have

other officers who are milling around. You know, you have

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an officer telling Mr. Balai to have a seat, putting his

hand on Mr. Balai. Clearly Mr. Balai was being detained --

. . . .

THE COURT: -- for questioning, and clearly, based on

the officer's testimony, Mr. Balai was not free to get up

and leave and refuse to answer the officer.

[DPA]: And then -- sorry, your Honor. And then just

to clarify, and then the initial interactions with the

defendant, when the officer just said, "I'm just here to

figure out what's going on," and that -- so the Court

considers that detainment and interrogation as well?

THE COURT: When the officer says, "I'm just here to

figure out what's going on," I mean, to me that's a clear

message to the defendant that's why I'm here; I'm here to

talk to you. So clearly warnings should have been given at

the outset.

. . . .

THE COURT: And clearly Mr. Balai should not have been

allowed to just say what he wants, and, you know, the

officer should not have just given up. . . . So it's -- all

of the statements are out.

The Voluntariness Order was filed on April 4, 2019, and

this appeal followed. 

II. Points of Error

In its opening brief, the State raised four points of

error, contending that the Circuit Court erred: (1) in

concluding that Officer Breyer should have Mirandized Balai when

the officer first encountered Balai in the backyard; (2) in

concluding that Balai's statements made before he said to Officer

Breyer, "Grab my knife," as well as Balai's statement, "Grab my

knife," were illegally obtained; (3) in concluding that Balai's

statements made to Officer Breyer while Balai was seated at the

table, before Miranda warnings were given, were illegally

obtained; and (4) in suppressing Balai's statements made before

he was placed in handcuffs. In essence, the State contended that

all of Balai's statements, made from the time that Officer Breyer

first encountered him in the backyard until Balai was placed in

handcuffs, were not the product of custodial interrogation and

thus should not have been suppressed. 

However, in its reply brief, the State clarified that

"The State is not seeking to overturn the [Voluntariness Order]

as to the suppression of [Balai's] statements made after he told

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[Officer] Breyer to grab his knife." Thus, the State appears to

have abandoned its third point of error, as well as its fourth

point of error to the extent the State originally challenged the

suppression of Balai's statements made after he told Officer

Breyer to grab the knife. Additionally, the State's first point

of error is substantially related to, if not subsumed within, its

second point of error.

Accordingly, we consider whether the Circuit Court

erred in suppressing the statements Balai made before he told

Officer Breyer, "Grab my knife," as well as Balai's statement,

"Grab my knife," based on the court's conclusions that these

statements were the product of custodial interrogation and that

Balai should have been Mirandized when Officer Breyer first

approached Balai in the backyard.4/

III. Discussion

In State v. Uchima, 147 Hawai#i 64, 464 P.3d 852

(2020), the Hawai#i Supreme Court reiterated:

Under the Fifth Amendment to the United States

Constitution and article I, section 10 of the Hawai#i

Constitution, a person in a criminal case cannot be

compelled to be a witness against oneself. This court has

long held that article I, section 10 of the Hawai#i

Constitution provides an independent source for the

protections which the United States Supreme Court enumerated

in Miranda. State v. Kazanas, 138 Hawai#i 23, 34, 375 P.3d

1261, 1272 (2016); see State v. Santiago, 53 Haw. 254,

265-66, 492 P.2d 657, 664 (1971). Thus, as a matter of

state constitutional law, statements stemming from custodial

interrogation may not be used by the State unless it "first

demonstrate[s] the use of procedural safeguards effective to

secure the privilege against self-incrimination." Kazanas,

138 Hawai#i at 34, 375 P.3d at 1272 (quoting State v.

Ikaika, 67 Haw. 563, 566, 698 P.2d 281, 283-84 (1985)).

Id. at 84, 464 P.3d at 872. 

4/ Although the Circuit Court did not use the words "custodial

interrogation" in suppressing Balai's statements, in substance, that was the

basis for the court's ruling, as reflected in the following excerpts: "[T]he

officer had ample opportunity to Mirandize Mr. Balai from the very outset,

when he first approached . . . Mr. Balai. . . . Clearly Mr. Balai was being

detained . . . for questioning, and clearly, based on the officer's testimony,

Mr. Balai was not free to get up and leave and refuse to answer the

officer. . . . When the officer says, "I'm just here to figure out what's

going on," I mean, to me that's a clear message to the defendant that's why

I'm here; I'm here to talk to you. So clearly warnings should have been given

at the outset. . . . So it's – all of the statements are out." (Formatting

altered.)

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"A critical safeguard is the Miranda warning: an

accused must be warned that he or she had a right to remain

silent, that anything said could be used against him or her, that

he or she had a right to the presence of an attorney, and that if

he or she could not afford an attorney one would be appointed for

him or her." Kazanas, 138 Hawai#i at 34, 375 P.3d at 1272

(internal quotation marks omitted) (quoting State v. Ketchum, 97

Hawai#i 107, 116, 34 P.3d 1006, 1015 (2001)); see State v.

Patterson, 59 Haw. 357, 358-59, 581 P.2d 752, 753 (1978) ("An

individual in police custody may not be subjected to

interrogation without first being advised of his Miranda rights."

(underscoring added) (citing State v. Kalai, 56 Haw. 366, 537

P.2d 8 (1975))). If Miranda's safeguards are not satisfied, then

the accused's statements stemming from custodial interrogation

may not be used either as direct evidence or to impeach the

defendant's credibility. See State v. Hoey, 77 Hawai#i 17, 33,

881 P.2d 504, 520 (1994).

Miranda warnings must be given when a defendant is (1)

in custody, and (2) under interrogation. State v. Ah Loo, 94

Hawai#i 207, 210, 10 P.3d 728, 731 (2000); see Uchima, 147 Hawai#i

at 84, 464 P.3d at 872. "Custodial interrogation for Miranda

purposes means 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." Patterson, 59

Haw. at 357, 581 P.2d at 752-753. 

To determine whether an interrogation was custodial,

the court looks "to the totality of the circumstances, focusing

on the place and time of the interrogation, the length of the

interrogation, the nature of the questions asked, the conduct of

the police, and any other relevant circumstances." Ah Loo, 94

Hawai#i at 210, 10 P.3d at 731 (internal quotation marks and

brackets omitted) (quoting State v. Melemai, 64 Haw. 479, 481,

643 P.2d 541, 544 (1982)); see State v. Wyatt, 67 Haw. 293, 299,

687 P.2d 544, 549 (1984) ("Whether interrogation was carried on

in a custodial context is dependent on the totality of

circumstances surrounding the questioning. The relevant

circumstances, we have said, include 'the time, place and length

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of the interrogation, the nature of the questions asked, [and]

the conduct of the police at the time of the interrogation.'"

(first citing State v. Paahana, 66 Haw. 499, 503, 666 P.2d 592,

595 (1983), and Melemai, 64 Haw. at 481, 643 P.2d at 544, then

quoting Paahana, 66 Haw. at 503, 666 P.2d at 595)). 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 (brackets

omitted) (quoting Patterson, 59 Haw. at 362, 581 P.2d at 755-56). 

The totality of the circumstances test applies to custodial

interrogation, "in the sense that the defendant is deprived of

his or her freedom of action in any significant way." Kazanas,

138 Hawai#i at,35, 375 P.3d at 1273. Relevant circumstances can

include "whether the investigation has focused on the suspect and

whether the police have probable cause to arrest [the suspect]

prior to questioning[.]" Ah Loo, 94 Hawai#i at 210, 10 P.3d at

731 (quoting Melemai, 64 Haw. at 481, 643 P.2d at 544).

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.'" Kazanas, 138 Hawai#i at 38, 375 P.3d at 1276

(brackets omitted) (quoting Paahana, 66 Haw. at 503, 666 P.2d at

595-596). "[I]nterrogation encompasses not only express

questioning, but also 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." Uchima, 147

Hawai#i at 84, 464 P.3d at 872 (quoting State v. Trinque, 140

Hawai#i 269, 277, 400 P.3d 470, 478 (2017)). A police officer's

subjective intent "is not determinative in analyzing whether his

[or her] words and conduct amounted to interrogation." Trinque,

140 Hawai#i at 278, 400 P.3d at 479 (citing State v. Joseph, 109

Hawai#i 482, 495, 128 P.3d 795, 808 (2006)). 

Here, Officer Breyer sought out Balai in his backyard

after midnight in connection with a reported assault. Before

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approaching Balai, Officer Breyer already knew there was a report

of an assault with a knife, knew the names of the two individuals

(Dominic and Gilbert) involved in the incident, and knew that

Dominic had been injured and was bleeding in his stomach area. 

The State also asserts that Officer Breyer heard Dominic say that

Gilbert was at the residence with a knife. Officer Breyer then

stated, "gotta find the knife," and continued to the residence

with another officer. Upon arrival, Officer Breyer asked various

individuals where "Gilbert" was, and was directed to the

backyard. When Officer Breyer walked into the backyard looking

for Gilbert, he approached a man working on a fence, and saw a

knife sticking upright in the ground a few feet from the man. 

Officer Breyer addressed the man as "Gilbert," and Balai appeared

to respond as such. Officer Breyer then said, "Ok, so we just

got called here. We gotta figure out what's going on, Okay?" 

Based on all of the relevant circumstances, we conclude that the

police, upon discovering Balai and the knife in the backyard, at

a minimum had focused their investigation on Balai. See Ah Loo,

94 Hawai#i at 210, 10 P.3d at 731; Patterson, 59 Haw. at 361, 581

P.2d at 755 (focus of the investigation upon the defendant is "an

important factor in the determination of whether the defendant

was subjected to custodial interrogation" (citing Kalai, 56 Haw.

at 369, 537 P.2d at 11)).

We further conclude that under all of the relevant

circumstances, when the police discovered Balai and the knife in

the backyard, Balai was "deprived of his . . . freedom of action

in [a] significant way." Kazanas, 138 Hawai#i at 35, 375 P.3d at

1273. At that point, the hour was late and Balai was in the

presence of at least two KPD police officers. Officer Breyer

already knew the above-described information and had observed a

knife just a few feet away from Balai. Thus, the police were

aware of solid evidence linking Balai to the reported assault. 

See State v. Russo, 67 Haw. 126, 136, 681 P.2d 553, 561 (1984). 

It would have been unreasonable for Balai to think he could have

ushered the police out of the backyard; nor were they about to

leave, given that they had just located Balai and the possible

weapon used in the reported assault. See id. Since Balai could

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not have had a reasonable belief that he was "free to go," we

conclude he was "deprived of his freedom of action in a

significant way."5/ Id. (ellipsis and brackets omitted) (quoting

Miranda v. Arizona, 384 U.S. 436, 444 (1966)); Kazanas, 138

Hawai#i at 35, 375 P.3d at 1273. 

Under the totality of the circumstances in this case,

Balai was in custody from the time that Officer Breyer discovered

Balai and the knife in the backyard. Moreover, in this context,

we conclude that Officer Breyer's statement to Balai -- "Ok, so

we just got called here. We gotta figure out what's going on,

Okay?" -- was reasonably likely to elicit an incriminating

response and, therefore, constituted interrogation. See Kazanas,

138 Hawai#i at 38, 375 P.3d at 1276. Based on Officer Breyer's

words and conduct, it appears he was attempting to gain Balai's

trust so that Balai would talk about the stabbing incident.

Accordingly, the statements at issue in this appeal,

all of which were made by Balai after Officer Breyer's abovequoted statement,6/ were the product of pre-Miranda custodial

interrogation, and the Circuit Court did not err in suppressing

Balai's statements. 

5/ Indeed, the State argues in its opening brief that "this court

should conclude that when [Officer] Breyer encountered [Balai] in the

backyard, he possessed a reasonable suspicion that he was the 'Gilbert' who

recently stabbed Dominic." The State further argues, however, that "although

a knife was partially buried in the ground a few feet from where [Balai] was

standing, . . . [Balai] did not appear bloody or injured. So, [Officer]

Breyer did not have probable cause to conclude that [Balai] had recently

stabbed Dominic." The State fails to adequately explain its reasoning. 

Moreover, in these circumstances, where Balai was the focus of investigation

and deprived of his freedom of action in a significant way, we need not decide

whether Officer Breyer also had probable cause to arrest Balai when the

officer first observed the knife. See Melemai, 64 Haw. at 481, 643 P.2d at

544 (probable cause to arrest may play a significant role in the application

of the Miranda rule, but it is "not determinative"). 

6/ The State clarifies in its reply brief:

[Officer] Breyer's Body Worn Camera footage clearly

indicates that [Balai], while standing about 10-15 feet from

[Officer] Breyer, was actively working on the fencing

material when [Officer] Breyer asked him, "So, we just got

called here. We gotta figure out what's going on, OK?" 

After that, Balai made incriminating statements and directed

[Officer] Breyer to grab his ([Balai's]) knife, and

[Officer] Breyer escorted [Balai] over to a nearby outdoor

table.

(Italics and underscoring in original.)

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IV. Conclusion

For the reasons discussed above, we affirm the April 4,

2019 "Order Determining That All Statements Defendant Made to the

Kauai Police Department Were Not Voluntarily Made and Are

Excluded from Use at Trial," entered in the Circuit Court of the

Fifth Circuit. The case is remanded to the Circuit Court for

further proceedings.

DATED: Honolulu, Hawai#i, February 18, 2022.

On the briefs:

Tracy Murakami,

Deputy Prosecuting Attorney,

County of Kaua#i,

for Plaintiff-Appellant.

Daniel G. Hempey

(De Costa Hempey LLC)

for Defendant-Appellee. 

/s/ Lisa M. Ginoza

Chief Judge

/s/ Clyde J. Wadsworth

Associate Judge

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DISSENTING OPINION BY MCCULLEN, J.

I respectfully dissent. Defendant-Appellee Gilbert

Balai (Gilbert) was not in custody and was not interrogated

during the first minute and twenty-five seconds of his encounter

with the officer, which is the subject of this appeal.

Custodial interrogation generally requires the suspect

to be (1) in custody and (2) interrogated. State v. Kazanas, 138

Hawai#i 23, 35, 375 P.3d 1261, 1273 (2016). The Hawai#i Supreme

Court recognized the distinction between custodial interrogation

subject to Miranda warnings and "permissible general on-the-scene

questioning." State v. Ah Loo, 94 Hawai#i 207, 210, 10 P.3d 728,

731 (2000). Although the court observed that the line between

the two is imprecise, 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." Id. at 94 Hawai#i at

210, 10 P.3d at 731.

As the court explained, a person may be seized, yet not

in custody:

[A]n individual may very well be "seized," within the

meaning of article I, section 7 of the Hawai#i Constitution

(inasmuch as, "given the totality of the circumstances, a

reasonable person would have believed that he or she was not

free to leave," [State v. Trainor, 83 Hawai#i 250, 256, 925

P.2d 818, 824 (1996)]), and yet not be "in custody," such

that Miranda warnings are required as a precondition to any

questioning. 

Id. at 211, 10 P.3d at 732. The court further observed that the

purpose of an investigatory stop is to confirm or deny an

officer's suspicions with reasonable questioning:
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[a]n officer making an investigatory stop will often have

some suspicion of the identity of the person apprehended and

of his prior unobserved activity. It is the very purpose of

the investigatory stop to allow the officer to confirm or

deny these suspicions by reasonable questioning, rather than

forcing in each instance the 'all or nothing' choice between

arrest and inaction.

State v. Patterson, 59 Haw. 357, 363–64, 581 P.2d 752, 756 (1978)

(citing United States v. Hickman, 523 F.2d 323, 327 (9th Cir.

1975)) (emphasis added).

Therefore, our courts have contemplated instances where

a person's freedom of movement may be restricted and that person

may be questioned to confirm or deny a police officer's

reasonable suspicion. Id. That is what occurred during the

first minute and twenty-five seconds of Gilbert's encounter with

Kaua#i Police Department Officer Kristopher Breyer (Officer

Breyer).

Custody

To determine whether a suspect is in custody, courts

look to the totality of the circumstances and focus on "the place

and time of the interrogation, the length of the interrogation,

the nature of the questions asked, the conduct of the police, and

any other relevant circumstances." Ah Loo, 94 Hawai#i at 210, 10

P.3d at 731 (brackets removed). While the focus of an

investigation on a suspect and probable cause are important

factors, they are not dispositive in determining whether a

custodial interrogation occurred. State v. Melemai, 64 Haw. 479,

481–82, 643 P.2d 541, 544 (1982). Instead, the inquiry focuses

on the totality of the circumstances. See, e.g., Ah Loo, 94

Hawai#i at 210, 10 P.3d at 731).

First, Officer Breyer approached Gilbert in his

backyard, and stood a fair distance away. Although Officer

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Breyer testified that Gilbert was not free to leave because he

was under "investigative detainment", Gilbert was given ample

room to move around and latitude to continue fixing his fence. 

Second, the length of time between Officer Breyer's initial

contact with Gilbert and Gilbert identifying the knife as his was

approximately one minute and twenty-five seconds. Third, Officer

Breyer did not ask Gilbert any questions but informed Gilbert of

the reason he was on Gilbert's property. Fourth, Officer Breyer

maintained a calm, respectful, and professional demeanor and did

not display any coercive behavior. Finally, although the

circumstances occurred late at night, the police had no choice

but to respond at that time because that was when the assault

call was made.

Based on these circumstances, Officer Breyer's

interaction with Gilbert was not conducted under any coercive

circumstance to warrant a finding that Gilbert was in custody for

the first minute and twenty-five seconds. See State v. Hoffman,

73 Haw. 41, 53, 828 P.2d 805, 812 (1992) (stating that the

setting where the police officer questioned the defendant was not

custodial or of a nature likely to subjugate a defendant to the

will of the officer); Patterson, 59 Haw. at 363–64, 581 P.2d at

756 (finding no custodial interrogation because the police

interview of the burglary suspect was brief, comprised of factfinding inquires designed to clarify the situation, lacked an

overbearing show of force, and not conducted under coercive

circumstances).

Also, there was no probable cause to arrest Gilbert

during the first minute and twenty-five seconds. Probable cause

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"exists when the facts and circumstances within one's knowledge

and of which one has reasonably trustworthy information are

sufficient in themselves to warrant a person of reasonable

caution to believe that an offense has been committed. This

requires more than a mere suspicion but less than a certainty." 

State v. Maganis, 109 Hawai#i 84, 86, 123 P.3d 679, 681 (2005)

(citations, internal quotation marks, and emphasis omitted).

Here, Officer Breyer testified that he responded to a

dispatch call involving an assault with a knife, and that

"Gilbert" and "Dominic" were the parties involved. Officer

Breyer's Body Cam Video showed him drive up to three males, one

injured with blood, walking on the side of the road. Officer

Breyer asked through the window, "[y]ou ah Gilbert?" to which the

male responded, "Dominic, Dominic." Officer Breyer said, "hang

tight Dominic," and drove further along the road. When Officer

Breyer stopped again, he exited his car and pointed to some

shrubbery and said, "we gotta find the knife, it's in here, it

was in here?"

Officer Breyer returned to his car and drove to the

property involved where four women and several children were in

the front yard. Officer Breyer exited his car and asked for

Gilbert. Although most of the conversation was unintelligible,

he was eventually directed to the backyard with one woman clearly

saying, "Gilbert is in the back I think . . . yeah I don't know .

. . no I just saying I don't know if Uncle Gilbert is in the back

or not."

Officer Breyer walked along some structures toward the

backyard and, upon seeing a male fixing a fence, Officer Breyer

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called out, "hey Gilbert, hey Kaua#i Police, hey brah, Gilbert

you can turn and face me." The male whose attention was focused

on the fence said, "I'm just strapping down, what I doing?" 

At that point, there was no positive identification

that the male fixing the fence was, in fact, Gilbert. Although a

positive identification of a suspect may be sufficient to

establish probable cause, there was no express denial or

acknowledgment by the male that he was in fact Gilbert, and there

was no positive identification by Dominic or any other witness. 

See State v. Pulse, 83 Hawai#i 229, 245, 925 P.2d 797, 813

(1996), amended by 83 Hawai#i 545, 928 P.2d 39 (1996) (holding

that a positive identification by the victim that the defendant

terrorized him with a gun was sufficient to establish probable

cause).

Furthermore, Gilbert was in the process of fixing a

fence using some sort of tool, and there was no indication he was

holding a knife. Although the Body Cam Video shows a black

object protruding from the ground near the roll of fencing, there

was no testimony that Officer Breyer understood it to be a knife

prior to Gilbert saying so. And even if Officer Breyer

understood the object to be a knife, mere proximity was

insufficient to establish probable cause. See Hoffman, 73 Haw.

at 43, 54, 828 P.2d at 807, 813 (stating that a beer bottle that

was in close proximity to the defendant combined with a witness'

statement that the bottle belonged to the defendant was not

sufficient to establish probable cause to arrest the defendant

for unlawful display of intoxicating liquor).

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Although the State asserts in its opening brief that

"[Officer] Breyer heard Dominic say that Gilbert was at the

residence with a knife," the State provided no citation for this

assertion and this assertion was not evidence. See Alghussein v.

Kaan, 149 Hawai#i 174, 184, 485 P.3d 68, 78 (App. 2021) (noting

that an argument made by counsel in a memorandum of law is not

evidence).

More importantly, the Body Cam Video shown and the

testimony adduced at the voluntariness hearing did not support

the assertion that Dominic told Officer Breyer that Gilbert was

at home and possessed a knife. The Body Cam Video showed the

male on the road say, "Dominic, Dominic" and Officer Breyer

responded, "hang tight Dominic." When asked during crossexamination, "although you report--you say he--he told you

certain things, the truth of the matter is all he said was

Dominic and you tell him something to the effect of hang on

. . . ," Officer Breyer responded, "That's correct."

Based on the evidence adduced at the voluntariness

hearing, Officer Breyer knew there was an assault with a knife,

Gilbert and Dominic were the parties involved, and an injured

Dominic was walking along the road. And although he approached a

male fixing a fence, Officer Breyer did not positively identify

that male as Gilbert. It was not until Gilbert claimed ownership

of the knife in the ground at approximately one minute and

twenty-five seconds after Officer Breyer approached that the

facts and circumstances within Officer Breyer's knowledge would

warrant a person of reasonable caution to believe the male fixing

the fence committed a crime, i.e., probable cause. Thus, based

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on the totality of circumstances as shown by the evidence

adduced, Gilbert was not in custody for the first minute and

twenty-five seconds of his encounter with Officer Breyer. 

Interrogation

Gilbert was also not interrogated during that time. 

Interrogation "under Miranda refers to (1) any words, actions, or

practice on the part of the police, not only express questioning,

(2) other than those normally attendant to arrest and custody,

and (3) that the police should know is reasonably likely to

invoke an incriminating response." State v. Trinque, 140 Hawai#i

269, 277, 400 P.3d 470, 478 (2017). But, "[g]enerally, informing

a defendant of the reason for being stopped or arrested does not

constitute custodial interrogation likely to elicit an

incriminating response." State v. Sagapolutele-Silva, 147

Hawai#i 92, 103, 464 P.3d 880, 891 (App. 2020), cert. granted,

No. SCWC-19-0000491, 2020 WL 5544432 and 5544434 (Haw. Sept. 16,

2020).

Officer Breyer said, "hey Gilbert, hey Kaua#i Police,

hey brah, Gilbert you can turn and face me." He then said, "Ok,

so we just got called here. We gotta figure out what's going on. 

Okay?" These statements were properly made to inform Gilbert as

to why Officer Breyer was standing in the middle of his backyard

during the middle of the night. See Sagapolutele-Silva, 147

Hawai#i at 103, 464 P.3d at 891 (stating that simply informing a

person of the reasons for their stop or arrest does not

constitute interrogation); United States v. Crisco, 725 F.2d

1228, 1232 (9th Cir. 1984) ("[W]hen an officer informs a

[suspect] of [the] circumstances [of their arrest or explains

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evidence against them] this information may be considered

normally attendant to arrest and custody.").

Although the Kazanas court held that even "small talk"

could amount to an interrogation, Kazanas is distinguishable. In

Kazanas, the defendant was charged with criminal property damage

and unauthorized entry into a motor vehicle. Kazanas, 138

Hawai#i at 27, 375 P.3d at 1265. After placing the defendant

under arrest, the officer transported the defendant to the

hospital and took him alone to the Honolulu Police Department's

private hospital room. Id. at 28, 40-41, 375 P.3d at 1266, 1278-

79. There, the officer asked the defendant how his Halloween

went. Id. at 40-41, 375 P.3d at 1278-79. The defendant

responded that if people did not upset him, he would not have had

to punch them. Id. at 28, 375 P.3d at 1266.

The Hawai#i Supreme Court held that the officer's

question about Halloween was an interrogation. Id. at 40-41, 375

P.3d at 1278-79. The court observed that the officer knew how

the defendant's Halloween went because she encountered him at the

end of his night and was aware of the circumstances of his

arrest. Id. The court reasoned that finding there was no

interrogation would "encourage police officers to engage suspects

in custody in non-Mirandized and seemingly harmless conversations

about 'how their night was going' in the hope that the suspects

may make incriminating statements about the events leading up to

their arrest." Id.

Unlike the officer in Kazanas, Officer Breyer did not

encounter Gilbert at the end of the investigation with full

knowledge of the events that transpired. Instead, Officer Breyer

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was the first to contact Gilbert with general knowledge of an

assault with a knife, the names "Gilbert" and "Dominic," and that

an injured Dominic was walking along the road. Officer Breyer

did not know the circumstances of the assault and had not

positively identified Gilbert.

Nothing in that first minute and twenty-five seconds

indicated that Officer Breyer attempted to elicit an

incriminating response. Instead, Officer Breyer informed Gilbert

that he was on his property as part of an investigatory stop. 

Concluding otherwise would force officers in similar

circumstances to take the impractical and disfavored "all or

nothing" approach between arrest or inaction. See Patterson, 59

Haw. at 363–64, 581 P.2d at 756.

Conclusion

Based on the evidence adduced during the voluntariness

hearing, Gilbert was not subjected to custodial interrogation

during the first minute and twenty-five seconds of his contact

with Officer Breyer under the totality of the circumstances;

"neither probable cause to arrest nor sustained and coercive

interrogation" were present. Ah Loo, 94 Hawai#i at 210-211, 10

P.3d at 731-32. I would, thus, hold that the Circuit Court

erroneously suppressed Gilbert's statements made up to and

including "[g]rab my knife."

/s/ Sonja M.P. McCullen

Associate Judge

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