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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

---o0o---

STATE OF HAWAIʻI, 

Petitioner/Plaintiff-Appellant,

vs. 

DYLAN RIVER JAMES, 

Respondent/Defendant-Appellee. 

SCWC-22-0000260

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

(CAAP-22-0000260; CASE NO. 5CPC-20-0000051)

JANUARY 3, 2024

RECKTENWALD, C.J., McKENNA, AND EDDINS, JJ., 

AND CIRCUIT JUDGE CATALDO AND CIRCUIT JUDGE MALINAO, 

ASSIGNED BY REASON OF VACANCIES

OPINION OF THE COURT BY McKENNA, J.

I. Introduction

The State of Hawai‘i (“the State”) appeals a pretrial 

suppression order of the Circuit Court of the Fifth Circuit 

Electronically Filed

Supreme Court

SCWC-22-0000260

03-JAN-2024

09:20 AM

Dkt. 11 OP
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(“circuit court”). The circuit court1 suppressed text message 

evidence in the sexual assault prosecution of defendant Dylan 

River James (“James”). During an interview of the complaining 

witness (“CW”), police detectives directed her to contact James

to discuss the incident. CW tried to call James while with the 

officers, but James did not pick up. CW later texted James, who 

responded; James apparently made admissions during the text 

conversation with CW.

The circuit court granted James’s motion to suppress the 

text messages, reasoning (1) CW was acting as a government agent 

when she texted James; therefore (2)(a) James’s rights against 

self-incrimination under the federal and Hawaiʻi constitutions

were violated because no Miranda warnings were given; and 

(b) James’s rights to counsel under the federal and Hawaiʻi 

constitutions were violated because he was not advised of his 

right to counsel. The circuit court also denied the State’s 

motion for reconsideration.

The State appealed and the ICA affirmed. State v. James, 

No. CAAP-22-0000260, 2023 WL 3017974 (Haw. App. Apr. 20, 2023) 

(SDO). The ICA held that pursuant to the bright-line rule of

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

warnings were required before James was “interrogated” because 

 

1 The Honorable Randal G.B. Valenciano presided.
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probable cause existed at the time CW texted James. James, 2023 

WL 3017974, at *6 (citing State v. Hewitt, 153 Hawai‘i 33, 36, 

526 P.3d 558, 561 (2023)). The ICA did not address the right to 

counsel issue. 2023 WL 3017974, at *1 n.4. The ICA also held

it lacked appellate jurisdiction over the circuit court’s denial 

of the State’s motion for reconsideration. 2023 WL 3017974, at 

*1 n.1.

The circuit court and ICA erred. Under the Fifth Amendment 

to the United States Constitution and article I, section 10 of 

the Hawaiʻi Constitution, Miranda warnings are only required for 

“custodial” interrogations. Although CW was acting as a 

government agent, James was not “in custody” when there was no

stop or detention or other deprivation of his freedom of action

by law enforcement.

Therefore, there was no custodial interrogation requiring 

Miranda warnings and advisement of a right to counsel. The 

circuit court also erred by suppressing the texts based on 

James’s Sixth Amendment and Hawaiʻi Constitution article I, 

section 14 right to counsel. At the time of the text exchange, 

adversarial judicial criminal proceedings had yet to be 

initiated against James. Therefore, his right to counsel had 

not attached.

We also hold that the ICA erred by concluding it did not

have appellate jurisdiction over the circuit court’s order 
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denying the State’s motion for reconsideration. The State’s 

right to appeal from an order granting a defendant’s motion to 

suppress under Hawaiʻi Revised Statutes (“HRS”) § 641-13(7)

(2016) “encompasses a right” to appeal from a related order 

denying the State’s motion for reconsideration. See State v. 

Bohannon, 102 Hawaiʻi 228, 234, 74 P.3d 980, 986 (2003).

Hence, we vacate the ICA’s May 31, 2023 judgment on appeal 

as well as the circuit court’s March 28, 2022 findings of fact, 

conclusions of law and order granting motion to suppress text 

messages (“FOF/COL/Order”) and April 4, 2022 order denying the 

State’s motion for reconsideration. We remand to the circuit 

court for further proceedings consistent with this opinion.

II. Background

A. Factual background

On July 2, 2015, James allegedly sexually assaulted CW. 

Later that day, Kaua‘i Police Department detectives Ray M. 

Takekawa (“Detective Takekawa”) and Darren Rose (“Detective 

Rose”) (together, “the detectives”) interviewed CW.

At the end of the interview, the detectives directed CW to 

contact James to discuss the alleged sexual assault. CW was 

recorded saying to the detectives, “Wait. So, like, first I 

should just, like, get him to admit that we, like, had sex and 

then after that be like, well, I was like –” CW then tried to 

call James, but he did not pick up. CW asked the detectives, 
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“Do I leave a message?” Detective Takekawa responded, “You want 

to try a text?” and Detective Rose said, “Give it a few minutes, 

about five minutes, and we’ll try one more time.” CW tried to 

call James a second time but he did not pick up. 

CW then texted James. James responded with various texts 

to CW about the incident. Among other things, he apparently 

admitted they had sex and that it was “rough.”2

B. Grand jury proceedings

CW testified about the above events to a grand jury. 

On March 11, 2020, the grand jury returned an indictment 

charging James with five counts of sexual assault in the first 

degree in violation of HRS § 707-730(1)(a) (2014).3

 

2 CW texted James that she was “thinking about the other night.” During 

the course of their text conversation, James stated, “I do remember it being 

very rough.” When CW later texted, “You really don’t take no for an answer,” 

James responded,

Woah! I couldn[’]t tell if you were being serious or no[t] 

to be honest . . . Thought it was some kind of ‘role 

playin[g’] or something? Sorry about that, [I] was a 

li[ttle] confused about that as well . . . .

. . . .

When you were screaming and crawling away by the lifeguard 

tower . . . Couldn[’]t tell if you were serious or w[h]at 

was goin[g on]. I was pretty confused . . . And sorry to 

put you in that situation, [it] wasn[’]t my intention at 

the time[.]

3 HRS § 707-730(1)(a) provided: “(1) A person commits the offense of 

sexual assault in the first degree if: (a) The person knowingly subjects 

another person to an act of sexual penetration by strong compulsion[.]”
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C. Circuit court proceedings

1. Motion to suppress text messages

On December 21, 2021, James filed a motion to suppress the 

text messages between James and CW (“motion to suppress”). 

Defense counsel initially argued the texts should be suppressed

because the Fourth Amendment to the U.S. Constitution and 

article I, section 7 of the Hawai‘i Constitution ensure an 

“individual’s legitimate expectations of privacy will not be 

subjected to unreasonable governmental intrusions.” 

Citing State v. Kahoonei, 83 Hawai‘i 124, 925 P.2d 294 

(1996), James argued that, under the totality of the 

circumstances, CW was acting as a government agent at the time 

she texted James. James characterized CW’s texts as “pretext 

calls.” “Pretext calls” are calls “made by a witness at the 

direction of the police to a suspect or somebody else involved 

in the investigation. The investigators tape-record the 

telephone conversation and instruct the witness on what to say. 

The detectives use pretext calls to gather evidence and/or 

incriminating statements.” People v. Wahlert, 31 Cal. Rptr. 3d 

603, 614 (Ct. App. 4th Div. 2005) (cleaned up). James cited the 

Montana Supreme Court’s opinion in State v. Stewart, 291 P.3d 

1187, 1198 (Mont. 2012). According to James, Stewart held

“‘pretext calls’ made by the complainant to the defendant at the 

direction of a detective had violated the defendant’s right to 
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privacy under the Montana constitution” because they constituted 

state action.4

2. Hearing on and oral order granting James’s motion to 

suppress

At the February 24, 2022 hearing on the motion to suppress, 

the circuit court cited Kahoonei, which held that whether a 

private individual was acting as a government agent when 

effectuating a search is to be analyzed under a “totality of 

circumstances.” 83 Hawaiʻi at 131-32, 925 P.2d at 301-02 

(holding a defendant’s mother was a government agent when she 

retrieved a firearm and ammunition from her son’s bedroom in an 

officer’s presence after an officer told her a search warrant 

could be obtained and a search would inevitably occur). The 

circuit court concluded CW was acting as a government agent, and

orally granted James’s motion to suppress.

 

4 As noted in Stewart, the Montana Supreme Court had held in State v. 

Allen, 241 P.3d 1045 (Mont. 2010), that a defendant has a reasonable 

expectation of privacy in a cellular telephone conversation with a 

confidential police informant, and that the warrantless recordation of the 

conversation violated defendant’s Montana constitutional right to privacy. 

Stewart, 291 P.3d at 1195. In other words, Montana, along with 14 other 

states, requires consent of all parties to a conversation for a warrantless 

recordation. See, e.g., Stewart, 291 P.3d at 1195. In contrast, Hawaiʻi is 

one of 36 states that does not require a search warrant when one party to a

face-to-face or telephonic conversation consents to recordation. See, e.g.,

State v. Graham, 70 Haw. 627, 780 P.2d 1103 (1989) (holding the recording of 

a private conversation with the consent or cooperation of a participant is 

not subject to constitutional regulation). See generally Recording Phone 

Calls and Conversations: 50-State Survey, JUSTIA (Jan. 2018), 

https://www.justia.com/50-state-surveys/recording-phone-calls-andconversations/ [https://perma.cc/529D-8XGR].
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3. Order granting James’s motion to suppress

On March 28, 2022, the circuit court issued its 

FOF/COL/Order. 

The circuit court’s conclusions of law (“COLs”) were that:

3. Under the totality of the circumstances, the 

governmental involvement in this case was significant and 

extensive enough to render CW an instrumentality of the 

State, i.e. a government agent, when she called and texted 

[James]. Kahoonei, 83 Hawai‘i at 132, 925 P.3d at 302. . . 

.

4. At the point when CW called and texted [James], 

he was the only suspect and the investigation had focused 

on him. If the detectives had sought to question [James] 

at that point they would have been required to advise him 

of his rights, including his right to remain silent and his

right to an attorney, and obtain a waiver of those right[s]

prior to proceeding with the questioning. Miranda v. 

Arizona, 384 U.S. 436 . . . (1966); State v. Santiago, 53 

Haw. 254, 266, 492 P.2d 657, 665 (1971). 

5. As CW was acting as a government agent when she 

called and texted [James], the actions of the detectives 

violated James[’s] right to an attorney under the [S]ixth

[A]mendment to the U.S. Constitution and article I, section 

14 of the Hawai‘i Constitution and [James’s] right to remain 

silent under the Fifth Amendment and article I, section 10.

Thus, although the circuit court relied on Kahoonei, which 

was a Fourth Amendment and article I, section 7 warrantless 

search case, the circuit court based its suppression ruling on 

alleged violations of James’s Fifth Amendment and article I, 

section 10 right against self-incrimination and Sixth Amendment 

and article I, section 14 right to counsel.

4. The State’s motion for reconsideration

On February 28, 2022, the State had filed a motion to 

reconsider the circuit court’s oral ruling (“motion for 

reconsideration”). The State argued that even if CW was acting 
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as a State agent, the content of the text messages was

admissible. It argued James had no reasonable expectation of 

privacy in his text message exchange with CW, even if she was 

acting as a State agent, so the text messages should not have 

been suppressed.

The State pointed out that in Graham, 70 Haw. 627, 780 P.2d 

1103, this court held a recorded private conversation with the 

consent of one party (otherwise known as “consensual 

eavesdropping” or “participant monitoring”) was not a 

constitutional violation. The State also cited to State v. Roy, 

54 Haw. 513, 510 P.2d 1066 (1973), in which this court held 

there was no unconstitutional search or seizure where an 

undercover government agent entered a private home to purchase 

marijuana by invitation but without a warrant. Similar to the 

defendants in those cases, the State argued, James had no 

reasonable expectation of privacy in his text message exchange 

with CW, even if she was acting as a State agent, so the text 

messages should not have been suppressed.

James’s memorandum in opposition to the State’s motion for 

reconsideration distinguished Graham, and changed his position 

to argue he was not asserting a violation of his right to 
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privacy.5 Rather, James said he was asserting a violation of his

rights to counsel and to remain silent, since the police “used 

CW to attempt to avoid the constitutional constraints placed 

upon them if they had conducted a custodial interrogation.” 

James also distinguished this case from Roy, arguing that in 

Roy, unlike here, “there was no requirement that the defendant 

be advised of his rights by police.”

James argued Kahoonei, 83 Hawai‘i at 131, 925 P.2d at 301,

“held that the police cannot actively recruit a private 

individual to engage in conduct which the police would have been 

prohibited from doing.” James argued that at the time of the 

text messages, the detectives’ investigation had focused solely 

on him as a suspect, and they already had probable cause to 

arrest James based on CW’s statements, so “any questioning of 

James conducted by the detectives would have constituted 

 

5 James initially based his motion to suppress on Fourth Amendment and 

article I, section 7 grounds. In concluding James’s Miranda rights were 

violated, the circuit court cited case law construing these constitutional 

provisions. Because the issue is not properly before us, we do not address 

whether James had a reasonable expectation of privacy in his text messages. 

We note that State v. Walton, 133 Hawaiʻi 66, 93-97, 324 P.3d 876, 903-07

(2014), overruled some Hawaiʻi cases holding information voluntarily disclosed 

to third parties automatically loses article I, section 7 privacy protection; 

Walton also set forth factors courts should consider in determining whether a 

defendant has a legitimate expectation of privacy that information provided 

to a third party would not be shared with others, including whether that 

information reveals “intimate details of a person’s life.” 133 Hawaiʻi at 96-

97, 324 P.3d at 906-07. But consent to a search provides an exception to the 

warrant requirement; the record suggests CW consented to the detectives 

reading her text exchange with James. It is not appropriate, however, for 

this court to determine as a matter of law the presence and scope of consent 

when it was not litigated in the trial court. See State v. Phillips, 138 

Hawaiʻi 321, 351, 382 P.3d 133, 163 (2016). 
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‘custodial interrogation,’” and the detectives would have been 

required to advise James of his rights. James argued that,

based on the totality of the circumstances, CW was acting as a 

government agent when she texted James. Therefore, James 

maintained, the detectives violated James’s right to remain

silent under the Fifth Amendment of the U.S. Constitution and 

article 1, section 10 of the Hawai‘i Constitution.

James also asserted the detectives’ actions violated his 

right to counsel under the Sixth Amendment to the U.S. 

Constitution and article 1, section 14 of the Hawaiʻi 

Constitution.

At the hearing on the State’s motion for reconsideration,

the State pointed out that “there is no precedent in Hawai‘i or 

anywhere else that a defendant is in custody, [when] he is miles 

away from the police [and] not incarcerated, even assuming . . . 

that the police possess probable cause to arrest.”

On April 4, 2022, the circuit court entered an order 

denying the State’s motion for reconsideration.

D. ICA proceedings

On April 11, 2022, the State filed a notice of appeal to

the ICA. The State asserted the circuit court erred (1) by 

finding CW induced James via text message to admit he had 

sexually assaulted her (FOF 7); (2) in concluding the detectives 

violated James’s Miranda rights under the federal and/or Hawai‘i 
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constitutions because it is undisputed that James was not in 

police custody (COL 4); (3) in concluding the detectives 

violated James’s right to counsel under the federal and/or

Hawaiʻi constitutions because James had not yet been charged; (4) 

by suppressing James’s text messages sent to CW’s phone; and (5) 

by denying the State’s motion to reconsider.

In its April 20, 2023 summary disposition order, the ICA

affirmed the circuit court’s order granting James’s motion to 

suppress. James, 2023 WL 3017974, at *7.

Relevant here, the ICA determined it did not have appellate 

jurisdiction over the circuit court’s order denying the State’s 

motion for reconsideration; hence, it did not address the 

State’s point of error concerning that order.6 2023 WL 3017974, 

at *1 n.1. The ICA reasoned that in civil cases, under Hawai‘i 

Rules of Appellate Procedure (“HRAP”) Rule 4(a)(3) (eff. 2020), 

a notice of appeal is “deemed to appeal the disposition of all 

post-judgment motions that are timely filed after entry of the 

judgment or order.” James, 2023 WL 3017974, at *1 n.1 (quoting 

HRAP Rule 4(a)(3)). HRAP Rule 4(b) (eff. 2020) governing 

 

6 The ICA concluded the circuit court’s FOF 7, that CW induced James via 

text message to admit he had sexually assaulted her, was not clearly 

erroneous. James, 2023 WL 3017974, at *5. This point is not at issue on

certiorari. 
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appeals from criminal cases, however, does not contain a similar 

provision. James, 2023 WL 3017974, at *1 n.1.

The ICA noted Miranda warnings are required when a 

defendant is (1) under interrogation and (2) in custody. James, 

2023 WL 3017974, at *6 (citing State v. Ah Loo, 94 Hawaiʻi 207, 

210, 10 P.3d 728, 731 (2000)). The ICA then said Hewitt held 

Miranda warnings are required by article 1, section 10 of the 

Hawaiʻi Constitution whenever probable cause to arrest has 

developed. James, 2023 WL 3017974, at *6 (citing Hewitt, 153 

Hawai‘i at 36, 526 P.3d at 561). The ICA noted the State does

not dispute the text messages constituted “interrogation” or the 

circuit court’s finding that at the time of the interrogation,

James was the “only suspect” and the investigation had “focused 

on him.” Id. The ICA concluded that the detectives therefore 

had probable cause to arrest James at the time of the text 

messages and that Miranda warnings were required before 

interrogation. James, 2023 WL 3017974, at *6.

The ICA also addressed the State’s assertion that the text 

messages should not have been suppressed because James received 

the texts from CW, not law enforcement. Id. The ICA reasoned 

the State’s position was inconsistent with the purposes of 

Hawai‘i’s exclusionary rule. Id. Quoting State v. McKnight, 131 

Hawai‘i 379, 398, 319 P.3d 298, 317 (2013), the ICA noted that 

the exclusionary rule’s purposes include “(1) judicial 
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integrity, (2) the protection of individual privacy, and (3) 

deterrence of illegal police misconduct.” James, 2023 WL 

3017974, at *6. The ICA determined that these purposes are not 

furthered by allowing circumvention of Miranda warnings by 

permitting law enforcement to engage in the undercover

interrogation of suspects by directing the sending and dictating 

the content of text messages using a government agent’s personal 

mobile device. James, 2023 WL 3017974, at *6.

Because the ICA concluded the circuit court properly 

suppressed the text messages based on article I, section 10 of 

the Hawaiʻi Constitution, the ICA declined to address point of 

error (3) concerning James’s right to counsel. James, 2023 WL 

3017974, at *1 n.4.

E. Certiorari proceedings

The State presents the following two questions on 

certiorari: whether the ICA gravely erred by concluding (1) 

Miranda warnings were required before CW, at police suggestion, 

sent text messages to James, “who was neither in proximity to a 

police officer nor confined in a correctional facility”; and (2) 

that it did not have appellate jurisdiction over the State’s 

motion for reconsideration.
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III. Standards of Review

A. Appellate jurisdiction

“The existence of [appellate] jurisdiction is a question of 

law and is reviewed de novo under the right/wrong standard.” 

State v. Uchima, 147 Hawaiʻi 64, 72, 464 P.3d 852, 860 (2020)

(citation omitted).

B. Motion to suppress

“An appellate court reviews a ruling on a motion to 

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

‘wrong.’” Hewitt, 153 Hawai‘i at 40, 526 P.3d at 565 (cleaned

up).

C. Constitutional issues

“Questions of constitutional law are reviewed under the 

right/wrong standard.” State v. Borge, 152 Hawaiʻi 458, 464, 526 

P.3d 435, 441 (2023) (citation omitted).

D. Interpretation of statutes and court rules

“The interpretation of a statute [or court rule] is a 

question of law which this court reviews de novo.” State v. 

Mortensen-Young, 152 Hawai‘i 385, 392, 526 P.3d 362, 369 (2023)

(cleaned up). Our statutory interpretation is guided by the 

following principles:

First, the fundamental starting point for statutory 

interpretation is the language of the statute itself. 

Second, where the statutory language is plain and 

unambiguous, our sole duty is to give effect to its plain 

and obvious meaning. Third, implicit in the task of 

statutory construction is our foremost obligation to 
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ascertain and give effect to the intention of the 

legislature, which is to be obtained primarily from the 

language contained in the statute itself. Fourth, when 

there is doubt, doubleness of meaning, or indistinctiveness 

or uncertainty of an expression used in a statute, an 

ambiguity exists.

When there is ambiguity in a statute, the meaning of 

the ambiguous words may be sought by examining the context, 

with which the ambiguous words, phrases, and sentences may 

be compared, in order to ascertain their true meaning.

Moreover, the courts may resort to extrinsic aids in 

determining legislative intent, such as legislative 

history, or the reason and spirit of the law.

State v. Abihai, 146 Hawai‘i 398, 406, 463 P.3d 1055, 1063 (2020) 

(citation omitted).

“When interpreting rules promulgated by the court, 

principles of statutory construction apply.” Mortensen-Young, 

152 Hawai‘i at 392, 526 P.3d at 369 (citation omitted).

IV. Discussion

A. Miranda warnings were not required because James was not 

“in custody” at the time of his text exchange with CW

The State correctly asserts the circuit court and ICA erred 

in concluding Miranda warnings were required before CW texted 

James at the detectives’ suggestion.

The Fifth Amendment to the U.S. Constitution and article I, 

section 10 of the Hawai‘i Constitution guarantee the right 

against self-incrimination. Hewitt, 153 Hawai‘i at 43, 526 P.3d 

at 568 (citation omitted). Miranda warnings help safeguard this 

right:

The Miranda rule is, at core, a 

constitutionally prescribed rule of evidence that 

requires the prosecution to lay a sufficient 

foundation — i.e., that the requisite warnings were 

administered and validly waived before the accused 
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gave the statement sought to be adduced at trial —

before it may adduce evidence of a defendant’s 

custodial statements that stem from interrogation 

during [their] criminal trial.

The prosecution’s burden of establishing that

the requisite warnings were given, however, is not 

triggered unless the totality of the circumstances 

reflect that the statement it seeks to adduce at 

trial was obtained as a result of “custodial 

interrogation,” which, as the United States Supreme 

Court defined it in Miranda, consists of “questioning 

initiated by law enforcement officers after a person 

has been taken into custody or otherwise deprived of 

their freedom of action in any significant way.” In 

other words, the defendant, objecting to the 

admissibility of their statement and, thus, seeking 

to suppress it, must establish that their statement 

was the result of (1) “interrogation” that occurred 

while they were (2) “in custody.”

Hewitt, 153 Hawai‘i at 43, 526 P.3d at 568 (cleaned up). 

Under the federal constitution, Miranda warnings are 

required when a suspect is subjected to “custodial 

interrogation,” which is “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.” United States v. Eide, 875 F.2d 1429, 1433 

(9th Cir. 1989) (cleaned up). James was not in custody or 

otherwise deprived of his freedom of action in any significant 

way. Thus, James was not “in custody” for Fifth Amendment 

purposes and Miranda warnings were not required by the federal

constitution.

This court provides criminal defendants with greater 

protection under Hawai‘i’s article I, section 10 privilege 

against self-incrimination than provided by the federal courts 
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under Miranda and its progeny. Hewitt, 153 Hawai‘i at 44, 526 

P.3d at 569 (citation omitted). Our Miranda rights case law, 

however, has consistently adhered to the two foundational

requirements for Miranda rights to be triggered: 

“interrogation” and “in custody.” See, e.g., Ah Loo, 94 Hawaiʻi 

at 210, 10 P.3d at 731 (citation omitted). 

The ICA misconstrued Hewitt and its reference to Ketchum, 

in which we held a person is “in custody” for the purposes of 

Miranda rights under article I, section 10 of the Hawai‘i 

Constitution:

[I]f 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.

Hewitt, 153 Hawai‘i at 43, 526 P.3d at 568 (quoting Ketchum, 97 

Hawai‘i at 126, 34 P.3d at 1025).

The circuit court and ICA appear to have construed Hewitt

and Ketchum to mean that any time probable cause has developed, 

a defendant is “in custody,” even when a defendant is nowhere 

near a law enforcement official. In Hewitt, however, we 

reiterated the basic framework that “a statement made by a 

defendant under custodial interrogation without a Miranda

warning must be suppressed as unconstitutionally elicited.”
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Hewitt, 153 Hawai‘i at 43, 526 P.3d at 568 (emphasis added). Our 

analysis concerning whether Miranda warnings were required in 

Hewitt was centered on whether the defendant, who was confined 

to a hospital bed with serious injuries, was “in custody” when 

questioned by police officers. See Hewitt, 153 Hawai‘i at 43-46, 

526 P.3d at 568-71 (holding that if a person is unable to leave 

a place of interrogation due to circumstances incident to 

medical treatment, determining whether the person is “in 

custody” under a totality of circumstances for purposes of 

article I, section 10 requires an inquiry into whether the 

person was at liberty to terminate the interrogation and cause 

officers to leave).

Hewitt clearly reiterated that Ketchum’s bright-line rule 

for when a suspect is “in custody” applies “when probable cause 

to arrest exists upon an initial stop or detention.” Hewitt, 

153 Hawai‘i at 43, 526 P.3d at 568 (emphasis added) (citing 

Ketchum, 97 Hawai‘i at 126, 34 P.3d at 1025). Hewitt also said 

that if a 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 inform the detained

person” of their Miranda rights. Hewitt, 153 Hawai‘i at 43, 526 

P.3d at 568 (second emphasis added) (citation omitted).

Thus, the Ketchum bright-line rule does not apply where 

probable cause exists but the police have not stopped or 
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detained the suspect, or have not otherwise deprived the suspect 

of freedom of action in any significant way. See Hewitt, 153 

Hawai‘i at 43, 526 P.3d at 568; Ketchum, 97 Hawai‘i at 117-18, 34 

P.3d at 1016-17 (“[T]he privilege against self-incrimination is 

jeopardized when an individual is taken into custody or 

otherwise deprived of [their] freedom by the authorities in any 

significant way and subjected to questioning[.]” (cleaned up)). 

Here, the detectives directed CW to contact James, and 

James apparently made incriminating statements. CW was acting 

as a government agent, but there was no “initial stop or 

detention” or other deprivation of freedom of action at the time 

James made the statements. See Hewitt, 153 Hawai‘i at 43, 526 

P.3d at 568; Ketchum, 97 Hawai‘i at 117-18, 34 P.3d at 1016-17. 

Therefore, regardless of whether probable cause to arrest 

existed at the time CW contacted James, James was not “in 

custody” and there was no “custodial” interrogation.7 Hence, 

Miranda warnings were not required under either the federal or 

state constitutions.

 

7 The State posits that we should set forth a bright-line rule that a 

suspect must be in the presence of, or in proximity to, law enforcement or 

“confined in a correctional facility” to be “in custody.” Because we need 

not do so in this case and because it is possible to envision circumstances 

in which a suspect could be interrogated while deprived of freedom in a 

significant way by authorities without being in their presence, such as 

through use of technology, including electric fences, we decline to adopt the 

State’s suggestion.
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B. James’s right to counsel had not attached

Because it upheld the circuit court’s suppression order 

based on the alleged violation of James’s Miranda rights, the 

ICA did not address the circuit court’s alternative ruling that 

James’s right to counsel had been violated. James, 2023 WL 

3017974, at *1 n.4. If James’s right to counsel was violated, 

the circuit court’s suppression order would be affirmed on this 

alternative ground. We therefore address that issue.

Even when a defendant is not subject to custodial 

interrogation:

An individual has a right to counsel under the [S]ixth 

[A]mendment to the United States Constitution and article 

I, section 14 of the Hawaiʻi State Constitution which

guarantees an accused the right to assistance of counsel 

for [the accused’s] defense. However, this right attaches 

at critical stages of the criminal prosecution, only at or 

after the initiation of adversarial judicial criminal

proceedings — whether by way of formal charge, preliminary 

hearing, indictment, information or arraignment. 

State v. Luton, 83 Hawai‘i 443, 448, 927 P.2d 844, 849 (1996)

(cleaned up).

Thus, the right to counsel attaches only after the 

initiation of adversarial judicial criminal proceedings. Such 

proceedings had yet to be initiated at the time of the text 

messages between CW and James. Therefore, the circuit court 

erred by suppressing the text messages based on its erroneous

conclusion that James was entitled to counsel under the Sixth 

Amendment and article I, section 14.
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C. The ICA erred by concluding it did not have appellate 

jurisdiction over the circuit court’s order denying the 

State’s motion for reconsideration 

Finally, we also address the State’s question regarding the 

ICA’s holding that it did not have appellate jurisdiction over 

the State’s appeal of the circuit court’s denial of the motion 

for reconsideration. 

The “right of appeal in a criminal case is purely statutory 

and exists only when given by some constitutional or statutory 

provision.” Bohannon, 102 Hawai‘i at 236, 74 P.3d at 988 

(citation omitted). HRS § 641-138 enumerates when the State may 

appeal a criminal case from the district and circuit courts. 

Bohannon, 102 Hawai‘i at 236, 74 P.3d at 988. “As a general 

rule, we strictly construe HRS § 641-13[.]” State v. Timoteo, 

87 Hawai‘i 108, 112, 952 P.2d 865, 869 (1997) (cleaned up).

However, this strict construction rule, like the rule 

applicable to penal statutes generally, does not permit the 

court to ignore legislative intent in the face of statutory 

ambiguity, nor require the court to reject the construction 

 

8 HRS § 641-13 provides in relevant part: 

An appeal may be taken by and on behalf of the State from 

the district or circuit courts to the intermediate 

appellate court, subject to chapter 602, in all criminal 

matters, in the following instances:

. . . .

(7) From a pretrial order granting a motion for the 

suppression of evidence, including a confession or 

admission, or the return of property, in which case 

the appellate court shall give priority to the appeal

and the order shall be stayed pending the outcome of 

the appeal[.]
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that best harmonizes with the design of the statute or the 

end sought to be achieved.

State v. Fukusaku, 85 Hawai‘i 462, 492, 946 P.2d 32, 62 (1997)

(citations omitted).

Section 641-13 does not expressly provide for a right of 

appeal from a motion for reconsideration. 

We agree with the State that, pursuant to Bohannon, the ICA 

nonetheless had appellate jurisdiction over the circuit court’s

order denying the State’s motion for reconsideration. In 

Bohannon, the State’s notice of appeal concerning the district 

court’s order granting the defendant’s motions to suppress and 

to dismiss did not expressly refer to the district court’s 

related order denying the State’s motion for reconsideration. 

102 Hawai‘i at 235, 74 P.3d at 987. We held the prosecution’s 

notice of appeal was nonetheless sufficient to appeal that order 

because the State’s “intent to appeal” from the order denying 

its motion for reconsideration could be “reasonably inferred 

from its notice of appeal.” Id. We agreed with the State that 

its “right to appeal from the order granting [the defendant’s] 

motion to suppress under HRS § 641-13(7) encompasses a right to

appeal from the order denying its motion to reconsider the 

district court’s order granting the motion to suppress.” 102 

Hawai‘i at 234, 74 P.3d at 986 (cleaned up). We noted that the

district court’s order denying the motion for reconsideration 
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was “merely an extension of its order granting [the defendant’s]

motions to suppress and to dismiss.” 102 Hawai‘i at 235, 74 P.3d 

at 987. 

Here, pursuant to Bohannon, the ICA had appellate 

jurisdiction over the circuit court’s order denying the State’s 

motion for reconsideration. Although HRS § 641-13 does not

expressly authorize appeals by the State from orders denying

motions to reconsider pretrial orders granting the suppression 

of evidence, we have held HRS § 641-13(7) implicitly encompasses

a right to appeal from such orders. Bohannon, 102 Hawai‘i at 

234, 74 P.3d at 986. 

The ICA determined it did not have jurisdiction over the 

order denying the State’s motion for reconsideration based on 

HRAP Rule 4. James, 2023 WL 3017974, at *1 n.1. HRAP Rule 

4(a), which applies to appeals of civil cases, contains a

provision expressly addressing post-judgment motions. It 

provides in relevant part,

(3) Time to appeal affected by post-judgment motions. If 

any party files a timely motion . . . to reconsider . . .

and court or agency rules specify the time by which the 

motion shall be filed, then the time for filing the notice 

of appeal is extended for all parties until 30 days after 

entry of an order disposing of the motion. The presiding 

court or agency in which the motion was filed shall dispose 

of any such post-judgment motion by entering an order upon 

the record within 90 days after the date the motion was 

filed. If the court or agency fails to enter an order on 

the record, then, within 5 days after the 90th day, the 

clerk of the relevant court or agency shall notify the 

parties that, by operation of this Rule, the post-judgment 

motion is denied and that any orders entered thereafter 

shall be a nullity. The time of appeal shall run from the 

date of entry of the court or agency’s order disposing of 
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the post-judgment motion, if the order is entered within 

the 90 days, or from the filing date of the clerk’s notice 

to the parties that the post-judgment motion is denied 

pursuant to the operation of the Rule.

 The notice of appeal shall be deemed to appeal the 

disposition of all post-judgment motions that are timely 

filed after entry of the judgment or order.

 The 90-day period shall be computed as provided in 

Rule 26 of these Rules.

HRAP Rule 4(b),9 which applies to appeals of criminal cases, 

contains no similar provision.

 

9 HRAP Rule 4(b) provides in full:

(b) Appeals in criminal cases.

 (1) Time for filing. In a criminal case, the notice 

of appeal shall be filed within 30 days after entry of the 

judgment or order appealed from. However, if the notice of 

appeal is mailed, the notice of appeal shall be deemed 

timely filed if the mailing is postmarked within the time 

fixed for filing and is received by the clerk no later than 

5 days after the postmarked date. For the purposes of 

calculating other deadlines in these Rules, the date of 

filing under this Rule shall be the date the document is 

received by the clerk.

 A motion for leave to file an interlocutory appeal 

from an order of the circuit court must be filed within 30 

days of the court’s entry of the order. If such a motion 

is filed and granted, then the notice of appeal shall be 

filed within 30 days after entry of the circuit court’s

order granting permission for leave to file an 

interlocutory appeal.

 (2) Effect of motions in arrest of judgment or for 

new trial. If a timely motion in arrest of judgment under 

Rule 34 of the Hawaiʻi Rules of Penal Procedure or for a new 

trial under Rule 33 of the Hawai‘i Rules of Penal Procedure 

has been made, an appeal from a judgment of conviction may 

be taken within 30 days after the entry of any order 

denying the motion.

 (3) Entry of judgment or order defined. A judgment 

or order is entered within the meaning of this subsection 

when it is filed with the clerk of the court.

 (4) Premature notice of appeal. A notice of appeal 

filed after the announcement of a decision, sentence or 

order but before entry of the judgment or order shall be 

deemed to have been filed on the date such judgment or 

order is entered.

 (5) Extensions of time to file a notice of appeal. 

Upon showing of good cause, the circuit, district, or 

family court may, no later than 30 days after the time has 

(continued. . .)
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HRAP Rule 4(b), however, merely governs timing requirements 

for filing appeals in criminal cases. See Bohannon, 102 Hawai‘i 

at 235, 74 P.3d at 987. In this case, there is no 

jurisdictional issue related to the timing of the State’s filing 

of the notice of appeal.10 The State’s April 11, 2022 notice of 

appeal expressly and timely appealed both the March 28, 2022 

order granting James’s motion to suppress and the April 4, 2022

order denying the State’s motion for reconsideration. And 

pursuant to Bohannon, HRS § 641-13(7) “encompasses a right” for 

the State to appeal from the circuit court’s order denying the 

State’s motion for reconsideration. See Bohannon, 102 Hawai‘i at 

234, 74 P.3d at 986.

Therefore, the ICA erred in ruling it lacked appellate 

jurisdiction over the circuit court’s order denying the State’s 

motion for reconsideration of the order granting motion to 

suppress. Based on our reasoning in Sections IV.A and B above, 

 

(. . .continued)

expired, on motion and notice, extend the time for filing a 

notice of appeal for a period not to exceed 30 days from 

the expiration of the time otherwise prescribed by this 

subdivision (b). Any such motion that is filed before 

expiration of the prescribed time may be ex parte unless 

the court otherwise requires.

10 As noted supra, the State filed its notice of appeal on April 11, 2022,

less than 30 days after the filing of both the circuit court’s order granting 

James’s motion to suppress the text messages (filed on March 28, 2022) and 

order denying the State’s related motion for reconsideration (filed on April 

4, 2022). See HRAP Rule 4(b)(1).
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the circuit court also erred by denying the State’s motion for 

reconsideration. 

V. Conclusion

For the reasons explained above, we vacate the ICA’s May 

31, 2023 judgment on appeal as well as the circuit court’s March 

28, 2022 FOF/COL/Order and April 4, 2022 order denying the 

State’s motion for reconsideration. We remand to the circuit 

court for further proceedings consistent with this opinion.

Tracy J. Murakami /s/ Mark E. Recktenwald

for petitioner

/s/ Sabrina S. McKenna

Christian G. Enright

for respondent /s/ Todd W. Eddins

/s/ Lisa W. Cataldo

/s/ Clarissa Y. Malinao