*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

IN THE SUPREME COURT OF THE STATE OF HAWAI ʻ I

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STATE OF HAWAI ʻ I, Petitioner /Plaintiff

- Appe ll a nt ,

vs. DYLAN RIVER JAMES , R espondent /Defendant

- Appell ee .

SCWC

- 22

- 0000 260
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP

- 2 2

- 00 0 0 260 ; 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
T he State of Hawai ‘ i (“the State”) appeal s 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*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

2 (“ c ircuit c ourt”) . The circuit c ourt 1 suppress ed text message evidence in the sexual assault prosecution of defendant Dylan River James (“James”)
. During an interview of the complain i ng witness (“ CW”), po lice detectives dire cted 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 , rea son in g ( 1) CW was acting as a government agent
when she texted James ; therefor e (2) (a) James ’ s right s against
self

- incrimination under the fed era l and Hawai ʻ i constitution s

w ere violated because no Miranda warnings were given ; and ( b ) James ’ s r ight s t o counsel u nde r the federal and Hawai ʻ i constit u t ions w ere violated becau se he was not advised of his right to counsel. The circuit court also de nied the State ’ s motion for re consideration.
T he Stat e appeal ed and t he ICA affirmed. State v. James , No. CAAP

- 22

- 0000260 , 2023 WL 3017974 (Haw. App. Apr. 20, 2023) (SDO). The ICA he ld t hat pursuant to th e br ight

- 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.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

3 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))
. Th e ICA did not address the right to counsel issue. 2023 WL 3017974 , at * 1 n.4
. T h e ICA also held it lacked appellate jurisdiction over the circuit cou rt ’ s denial
of the State ’ s motion for reconsideration. 2023 WL 3017974 , at

* 1 n. 1. The circuit cou rt an d ICA erred. Under the Fifth Amendment to the United States Constitution and article I, sec tion 10 of
the Ha wa i ʻ i C onstitution , Miranda warnings are only req uired for

“ custodial ” interrogation s . Although CW was acting as a government agent, James wa s not “in custody ” whe n there was no stop or detention or other deprivation of his freedom of act ion
b y law enf o rc em e nt . Therefore , t here was n o custodial interrogation re quiring Miranda warnings and advisement of a right to counsel. The circuit court also erred by s upp ressing th e texts b ased on
James ’ s Sixt h Amendment and Hawai ʻ i C onstit uti on a rticle I, sectio n 1 4 ri g ht to counsel . At the time of the text exchange ,
a dversarial judicial criminal proceedings had yet to be initiated against James . Therefore, his right to counsel had
not attached
. We also hold that t he ICA erred by concluding it did not
have ap pellate jurisdiction over the circuit court’s order*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

4 denying the State’s motion for reconsideration
. T he State’s right to appeal from an order granting a defendant ’ s mot io n to
suppress under Hawai ʻ i 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 , 1 02 Hawai ʻ i 228 , 234, 74 P.3d 980 , 986 (2003 ).
Henc e , we vacate the ICA ’ s May 31, 2 023 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/Or der ” ) and A p ril 4, 20 2 2 order denying the
State ’ s motion fo r reconsideration . We rema nd 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 (“ D et e cti ve T akekawa ”) 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
. C W was

r ec ord ed saying to the detectives, “Wait. So, li ke, first I should just, like, get him to admit that we, like, had sex and
th en after that be like, well, I was like

– ” CW then tried to call James, but he di d n ot pick up. CW as ked the detectives,*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

5 “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 trie d t o call Jame s a second time but he did not pick up.
CW then texted James . James re sponded with v arious texts
t o CW a bout the incident . A mong other things, he apparently admitted they h a d sex and that i t was “rough.” 2
B. Gran d jury proceedings CW testified about the a b ove events to a grand jury
. On March 11, 2020, t h e grand j ury returned an indictm ent 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 a bout the other night
. ” During the course of their text conver sation, James stated, “I do remember it being very rough
. ” When CW later texte d, “You really don’t take no for an answer,” James res ponded ,

Woah! I couldn [ ’ ] t tell if you w ere 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 scr eaming and crawling away by the lifeguard t ower . . . Couldn [ ’ ] t tell if you were s erious or w[h]at was goin[g on]. I was pre tty confused . .
. And sorry to put you in that situation, [it] wasn[’]t my intention at the time [
. ]

3 HRS § 707

- 73 0(1) (a) provided : “ (1) A person commits the offense of sexu al assault in the first degree if: (a) The person k nowingly subjects another person to an act of sexual penetration by strong compulsion [.]”*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

6 C. C ircuit court proceedings 1. Motion to suppress text messages On December 21, 2021, J ames filed a motion to suppr ess the
text m essages between James an d CW (“motion to suppress”).
Defense counsel initially argued the text s should be suppressed because the Fourth Amendment to the U.S. Constitution and article I, section 7 of the Hawai ‘ i Co nstitution ensure an

“ individual’s legitimate exp ectations of priv acy will not be subjected to unreasonable governmental intrusion s . ”
C iting 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 Jame s. Jam e s characterized CW ’ s te x ts as “ pretext calls.” “ P retext calls” a re calls “made b y a witness at the dire ction of the police to a suspect or some body else involved in the investigation
. The in vestigators tape

- record the telephone conversation and i nstruct the witness on what to say.
The detectives use pretext calls to gath er evidence and/or incriminating state ments .” Peopl e v. Wahlert , 31 Cal. Rptr. 3d 603, 614 ( Ct . App. 4th Div. 2005 ) (cleaned up)
. James cited t he Montana Suprem e C ourt ’ s op i nion in State v. Stewart , 291 P.3d 1187 , 1198 (Mont. 2012 )
. According to James, Stewar t held “‘pretext calls’ made by the complainant to the defendant at the direction of a detective had violated the defendant’s right to*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

7 privacy under the Montana constitution ” because the y constituted state action. 4 2
. Hearing on and oral order grant ing James’s motion to suppress
At the February 24, 2022 hearing on the motion to suppress , t he circuit court cited Kahoonei , whic h held that whether a private individual wa s acti n g as a government agent when effectuating a search is to be analyzed under a “ totality of
circumstances. ” 83 Hawai ʻ i at 131

- 32 , 925 P
. 2d at 30 1

- 02 ( holding a defendant ’ s mother was a government agent w hen she retrieved a firearm and ammuni tion from her son ’ s b edroom in an

o fficer ’ s presence after an officer told her a search warrant could be obtained and a search woul d in evitably occu r). The circuit court concluded CW was acting as a government agent , and

ora lly granted Ja mes’s motion to suppress.

4 As noted in Stewart , th e Montana Supr e me Court had held in State v. Allen , 241 P.3d 1045 ( Mont. 2010), that a defendant ha s a reasonable expe ctation of privacy in a cellular tele phone conversation with a c onfidential police informant, and that the warrant less recordation of the conversation violated def en dant ’ s Mo n tana constitution al right to privacy
. Stewart , 291 P.3d at 1195. I n other words, Mont a na , along with 14 other states, requires consent of al l p a rties to a conversation for a warrant less recordation. See , e .g. , Stewart , 291 P.3d at 1195. I n contrast, Hawai ʻ i is one of 36 states that does not re quire a search warrant when one party to a face

- to
- face or telephonic conversation c o nsents to recordati on . See , e.g. , State v. Graham , 70 Haw. 627, 780 P.2d 1103 (1 989) (holding the recording of a private conversati o n with the consent or cooperation of a participant is not subject to constitutiona l regulation )
. See generally Recording Phone Calls and Conversations: 50

- State Survey , JUSTI A (Jan. 2018), https://www.justia.com/50

- state
- surveys/recording

- phone

- calls

- and

conversations/ [ https://perma.cc/529D

- 8XGR ]
.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

8 3
. O rder granting James’s motion to suppress On March 28, 2022, the circuit court issued i t s FOF/COL/Order. The circuit c ourt ’ s conclusions of law (“COLs”) were that :

3. Under the totality of the circumst ances, the governmen tal in volvem ent in this case was significant and extensiv e e nough to re nder CW an instr umen tality 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 [Jame s], he was the only suspect and the inv estigation had focused on him. If the detectives ha d sought to qu estion [James] at that point t hey would have been required to advise him of his rights, including his right to r emain silent and his right to an attorney, and obtain a waiver of those rig ht [ s ] prior to p roceeding with t he q uestioning. Miranda v. Arizona , 384 U.S. 436
. . . (1966); Sta te v. Santiago , 53 Haw. 254, 266, 492 P.2d 657, 665 (1971).
5. As CW was acting as a government agent when she called an d texted [James], the actions of the det ectives vio lated James[’s] right to an attorney under the [S] ixth [A] mendment to the U.S. Con stitution and article I, section 14 of the Hawai ‘ i Constitution and [James’s] right to remain silent und er the Fifth Amendment and article I, section 10
. Thus, a lthough the circuit court relied on Kahoonei , which
was a Fourth Amendment and ar ticle I, sect ion 7 warrantless

sea rch case, t he circuit court based its suppression ruling on alleged violations of James’s Fifth Amendment and article I, section 10 right against self

- incrimination and S ixth Amendment and article I, section 14 right to counsel
. 4
. Th e State’s motion for reconsideration On February 28 , 2022, t h e Sta te had filed a motion to reconsider the circuit court ’ s oral ruling ( “motion for reconsideration”). The St ate argued that even if CW was acting*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

9 as a State agent, the content of the text me ssages was admissible. It argue d 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 s u ppressed
. The St a te pointed out that in Gra ha m , 70 Haw . 62 7 , 7 80 P.2d 1103 , this court held a recorded private conversation with the consent of one party (otherwise known as “consensual eavesdropping” or “part icipant monitoring”) was not a constitutional violation. The State also cited to S tate 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 priva te home to purchase mari ju ana by invitat ion but without a war rant . Similar to the defendants in t hose cases , the State a rgue d , 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 su ppressed
. J ames ’ s m emora ndu m in opposi tion to the State ’s motion for reconsideration distinguish ed Graham , and chang ed his position
to a rgue he was not asserting a violat ion of his right to*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

10 priv ac y . 5 Rather , James said h e was asserting a vio lat ion of his rights to counsel and to remain silent , s ince the po lic e “used CW to attempt to avoid the constitutional constraints placed upon them if they had conducted a custodial interrogation. ” James also distinguished th is case from Roy , arguing that in Roy , unlike here, “there was no requirement that the defendant
be advised of his rights by police.”
James arg ued Kahoonei , 83 Hawai ‘ i at 131, 925 P.2d at 301 , “held that the police cannot actively re cr uit a private individual to engage in conduct whic h the poli ce woul d have been prohibited from doing
. ” James argued tha t at the time of the text messages, the detectives’ investigation had focus ed solely

on him as a suspect, and they already had probable cause to arrest James based on CW’s statemen ts, so “any qu estioning of James conducted by the detectives would have cons tituted

5 James initially ba sed his motion to su p press on Fourth Amendment and article I, section 7 ground s. I n conclud in g James ’s Miranda rights we re violat ed, the circuit court cited case l aw construing the se co nstitutional provis ions
. Because the issue is not properly before us, we do not a d dress whether James had a reasonable expectation of privacy in his text message s . We note that State v. Walton , 133 Hawai ʻ i 66, 9 3

- 97, 324 P.3d 876 , 90 3

- 07 (2014) , over rul ed some Hawai ʻ i cases h olding information voluntarily disclosed to third part ies automatically loses art icle I, section 7 privac y protection ; Walton also set for th factors court s should consider in det ermin i ng whether a defendant ha s a legitimate expect ation 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 Hawai ʻ i at 96

- 97, 324 P
. 3d at 906

- 07
. But co nsent to a sear ch provid es an e xception to the warrant requirement ; t he record suggests CW consented to the detecti ve s reading her text exchange with James
. I t is not appropriate , however, for this court to determine as a matter of law the presence and scope of consent when it was not litigat ed in the trial court. See State v. Phillips , 138 Hawai ʻ i 321, 351, 382 P.3d 133, 163 (2016).*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

11 ‘cus todial interrogation , ’” and the detectives would have b een required to advise James of his rights. Jam es argued that, based on the totality of the ci rcumstances , CW was acting as a government agent when she texted James. The refore, James main tained , the dete ctives violated James’s right to remain silent under the Fifth Amendment of the U .S. Constitution and article 1, section 10 of th e Hawai ‘ i C onstitution.
James also asserted the de tective s ’ actions violated his right to counsel under the S ixth Amendmen t to the U.S.
Constitution and article 1, sectio n 14 o f the Haw ai ʻ i Constitution.
A t 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 cu stody, [when] he is mil es away fro m the police [and] no t incarcerated, even assuming . . . that the police possess probable cause to arrest.” On April 4, 2022, t he cir cuit court entered an order
den ying the State’s motion for reconsideration
. D
. ICA p rocee dings On April 11, 2022, t h e State filed a n otice of a ppeal to the ICA
. T he State asserted th e circuit court erred (1) by finding CW induced James via text messa ge to admit he had

s exually ass aulted her (FOF 7) ; (2) in concluding the detectives
viola ted J ames’s Mi randa rights under the federal and /or Hawai ‘ i*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

12 c onstitution s because it is undisputed that James was not in police custody (COL 4 ) ; (3) in concluding the detectives violated James’s righ t to counsel und er t he federal and /or
Hawai ʻ i c onstitu t ion s be cause James had not yet been charge d ; (4) by suppressing James’s text messages sent to CW’s phone ; and (5) by denying the State’s motion to reconsider
. In its Ap r il 20, 2023 s ummary d i s position o rder , the ICA affirmed the circuit court ’ s order gran ting Ja mes ’ s motion to
suppress . James , 2023 WL 3017974 , at * 7
. Relevant here, t he ICA determined it did not have appellate jurisdiction over the circuit cour t ’ 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 reaso ned that in civil cases, under Hawai ‘ i Rules of Appellate Procedur e ( “ HRA P ” ) Rule 4(a)(3) (eff . 2020) , a notice of appeal is “deemed to appeal the disposition of a ll post
- judgm en t mo tions 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 sex u ally assaulted her , was not cl early erro neous . James , 2023 WL 3017974 , at * 5
. This point is no t at issue on certiorari.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

1 3 appeals from criminal cases , however, does not contain a similar provision
. James , 202 3 WL 3017974 , at * 1 n.1
. T he ICA noted M i randa wa rnings are required when a defendant is (1) under interrogation and (2) in cus tody. James , 2023 WL 3017974 , at * 6 (citing State v. Ah Loo , 94 Hawai ʻ i 207, 210, 10 P.3d 728, 731 (2000) )
. The ICA then said H ewitt he ld Miranda warnings are required by article 1, se ction 10 o f the
H awai ʻ i C onstitution when ever 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 “int errogation” or the circuit court’s fi nding that at the time o f the interrogation,
James was th e “o nly suspect” and the investigation had “focused on hi m.” Id. Th e ICA concluded that the detectives therefore had probable cause to arrest Jame s at the time of the text
messages and that Miran da warnings were required before interrogation. James , 2023 WL 3017974 , at * 6
. T he ICA also addressed the State’s assertion that the text messages should not have been suppr essed because James received
the texts from CW , not law enforcement
. Id. The ICA reasoned
the State ’ s position wa s inconsi stent with the purpo ses of
Hawa i ‘ i’s exclusionary rule. Id. Quo ting State v. McKnight , 131
Hawai ‘ i 379, 398, 31 9 P.3d 298, 317 (20 13), the ICA noted that the exclusionary rule’s purposes inclu de “(1) judicia l*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

14 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 ar e not furthered by a llowing circumvent ion of Miranda warnings by
pe rmitting law enfor cement to engage in the undercover interrogat ion of suspe cts by direc t ing the sending and dictating
the content of text messages using a government agent’s p ersonal mobile device
. James , 2023 WL 3017974 , at * 6
. Because the ICA concluded the circuit court properly suppressed the text messages based on article I, sect ion 10 of
the Hawai ʻ i Cons titution, the ICA de clined to address point of error (3) concerning James’s right to couns el
. James , 2023 WL 3017974 , at * 1 n.4
. E
. Certiorari proceedings
T he State present s the follo wing two questions on certiorari : whether t he ICA gravely erred by concluding (1) Miranda warnings were required before CW, at po lice suggestion, sent text messages to James, “who was neither in proximity to a police officer n or confined in a correctional faci lity” ; and (2)
that it did not have appellate jurisdiction over the State’ s

m otion for reconsideration
.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

15 I II. Stan dards of Review
A
. App ellate jurisdic tion

“ The existence of [appellate] jurisdiction is a question of law and is reviewed de novo under the righ t/wrong standard. ”
St ate v. Uchima , 1 47 Hawai ʻ i 64, 7 2 , 4 64 P.3d 8 52, 86 0 (2020) (citation omitted).
B
. Motion to suppress
“A n appellate court reviews a ruling on a motion to
suppress de novo to determine whether the ruling was ‘right’ or ‘wrong. ’” Hewitt , 153 Hawa i ‘ i a t 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 Hawai ʻ i 458, 464, 526 P.3d 435, 441 (2023) (citation omitted).
D
. Interpretation of statutes an d cour t rules

“ The i nter pretat ion 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 princ i ples: 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 mea ning. Third, i mpli c it i n the task o f statutory construction is our foremost obligation to*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

16 ascertai n and give effect to the intention of the legislature, which is to be obtained primarily from the language cont ained in the statute itself. Fourth, when there is doubt, double n ess 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 word s, p h rase s, and sente nces 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 hist ory, or the reason and spirit of the law. State v. Abihai , 146 H a wai ‘ 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 w arnings were not required because James was not “in custody” at the time of his text excha nge with CW
T he State correctly asserts the circuit court and ICA erred in concluding M iranda warnings were required before CW texted
James at the detectives ’ suggestion
. The Fifth Amendment to the U.S. C ons titut ion and article I,
sectio n 10 of the Hawai ‘ i C onstitution guarantee the right against self

- incrimination. Hewitt , 153 Hawai ‘ i at 43, 52 6 P.3d at 568 ( citation o mitted )
. Miranda warning s help safeguard this right :
The M iranda rule is, at core, a constitutionally prescribed rule o f evidence that r equires the pr os e cution to lay a sufficient foundation

— i.e., that the r equ isite warnings were administer ed an d validly waived before the accused*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

17 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 prosecu tion’s burden of establis hing that the requisite warnings were gi ven, however, is not trigger ed unl ess the totality of the circumstances reflect that the st atement it seeks to a dduce at trial w a s obtained as a result of “custodial interrogation,” w hic h, as the United States Suprem e Cou rt defined it in Miranda , consists of “questioning initiated by law enforcement offic ers after a person has been taken into custody or otherwise deprived of their freedom of action in any significant way.” In ot her words, t he defendant, objecting t o the adm issibility of their statement and, thus, seeking to suppress it , must establish that their statement was the result of (1) “interrogation” that occurred wh i le they were (2) “in custody.” Hewitt , 153 Hawai ‘ i at 43, 5 26 P.3d at 568 ( cleaned up ).
U nder the federal constitution , Miranda warnings are require d when a s uspect is subjected to “ custodial interrogatio n , ” which is “ questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his f reedom of action in any signifi cant way. ” United States v. Eide , 875 F.2 d 1429, 1433 (9th Cir. 1989) (cleaned u p). James was not in custody o r otherwise depr i ve d of his freedo m of action in any significant way. Thus, James was not “ in custody ” for Fif th Amendmen t purposes and Mi randa warnings were not required by t he federal constitution.
T his court provides criminal defendants with greater protection under Hawai ‘ i’ s article I, section 10 privilege against self

- inc rimination than provided by the federal courts*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

18 under Miranda and its p rogeny . Hewitt , 153 Hawa i ‘ i at 44, 526
P. 3d at 569 (citation omitted)
. O ur Mi ra nda rights case law , however, has consistentl y adh ered to the two f oundational require ments for Miranda rights to be triggered : “interrogation ” and “ in custody
. ” Se e , e.g. , Ah Loo , 94 Hawai ʻ i
at 210, 10 P.3d at 731 (citation omitted).
T he ICA misconstrued Hewitt and its refe rence to Ketchum , in which we held a pers on is “ in custody ” for the purposes of
Miranda rights under article I, section 10 o f the Hawai ‘ i
C onstitut ion:

[I ] f an objective assessment of the totalit y 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, suc h that they are no long er reasonably designed briefly to confirm or dis pe l their reasonable suspicion or (2) that the point of arrest has arriv ed because either (a) prob able c ause to arrest has developed or (b) the police have subjected the person to an un lawful “ de fact o ” arres t withou t pr obable 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 )
. T he circuit court a nd 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 defend ant is nowhere near a law enforcement official. I n Hewitt , howe ver, we

re iterated th e basic framework that “ a statement made by a
defendant under custodial interrogation without a Miranda warning mus t be suppressed as unc on sti tutio nally elicited. ”*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

19 Hewitt , 153 Hawai ‘ i at 43, 526 P.3d at 568 (emphasis added)
. O ur analysis concer ning 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 ” wh en question ed by police offi c ers. See Hewitt , 153 Hawai ‘ i at 4 3

- 46 , 526 P.3d at 5 68

- 71 (h old ing that if a person is unable to leave a place of interrogation due to circumstances incident to medical treatment, d etermini ng whether the pers on is “in custody” under a to ta lity 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 leav e )
. Hewitt clearly reiterated that Ketchum ’s bright

- line rule
for w hen a su spe ct is “in cu stody” applies “ when probable cau se to arrest exists upon an init ial s top or detention
. ” Hewitt , 153 Hawai ‘ i at 43, 526 P.3d at 568 (emphasi s added) (citing
Ketchum , 97 Hawai ‘ i at 126 , 3 4 P.3 d at 1025 )
. Hewit t a lso said that if a detained per son ’s response s to a police officer’s questions provide the officer with probable cause to arrest ,

“ the officer is

– at that time

– required to info rm the detained
person ” of their Miranda rights
. Hewitt , 1 53 Haw ai ‘ i at 43, 5 26 P.3d at 568 ( second emphas i s added) ( citation omitted )
. Thus, t he K etchum bright

- line rule does not apply where probable cause exists but th e police have not stopped or*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

20 de tai ned t he suspect , or have not o therwise deprive d the suspect
of freedom of a ction in any sign ifi cant 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 indiv idual is taken into custody o r otherw ise deprived of [th eir] freedom by the authorities in any significant way and subjected to questionin g [
. ] ” ( cleaned up ) )
. He re, the detectives directe d CW to contact Jam es, and
James apparently ma de incriminatin g statement s . CW was acting
as a governmen t agent, but t he re w as no “initial stop or detention ” or other deprivation of freedom of ac tion at the time
James made the statement s . 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 exis t ed at the time CW contacted Ja mes , Jam es was not “in custody ” and there was no “ custodial ” interrogation. 7 Hence, Miranda w arnings were not required under either the federal or
state c onsti tutions.

7 The State posits that we should set f orth a bright

- line rule that a suspect must b e 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 signi fican t way by autho rities without being in the ir presence , s uc h as through use of techno logy , including electr ic fences , we d ecl ine to ad opt the State ’ s suggestion.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

21 B. James ’ s right to counsel had not attached Because it uphe ld th e circuit court ’ s s uppression ord er based on the alleged violati on o f James ’ s Mirand a rights, the ICA did not address the circuit court ’ s alternative ruling that
James ’ s right to couns el had been violated. James , 2023 WL 3017974 , at * 1 n.4
. If James ’ s ri ght to counsel was violated,
the circuit court ’ s suppression order would be affirmed on this alternative ground. We therefor e address that issue.
Even w hen a defendant is not subject to cus todia l interrogati on :

A n individual has a rig ht to counsel under the [S] ixth [A] mendment to the United Stat es Constitution a nd articl e I, section 14 of the Hawai ʻ i State Constitution w hic h guara ntees an accused the right to ass istance of c ounsel for [ the accu sed ’ s ] defens e . However, this right attaches at critical stages of the criminal prosecuti on , only at or after the initiati on of adv ersarial judicial criminal p roceedings

— whether by way of formal charge, preliminary hearing, indictment, information or arraignment
. State v. Luton , 83 Haw ai ‘ i 443, 448, 927 P.2d 844, 849 (1996) (cleaned up). Thus, the right to cou nse l attaches only after the initiation of a dversarial judicial criminal proceedings . Such proceedings had yet to be init iated at the time of the text

mes sages betw een CW and James . Therefo re, the circuit court erred by suppressing th e text messages based on its err oneous conclusion that J ames was en titled to co unsel under the Sixth Amendment and article I, section 14.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

22 C
. T he IC A err ed by concluding it d id not have appellate jurisdiction over the circ uit court’s order denying the State’s motion for reconsideration Finally, w e also address the Sta te ’ s question regar ding the
ICA ’ s holding that it did not have appellate juris diction over the State ’ s appeal o f the circuit court ’ s denial of the motion for reconsideration
. T he “ right of appeal in a criminal case is purely statu tory and exists only when giv en by some c onstitution al or statutory provision. ” Bohannon , 102 Hawai ‘ i at 236, 74 P.3 d at 988 ( citation omitted ). HRS § 641

- 13 8 enumerates when the State may appeal a criminal case from the district and circuit courts
. Bohannon , 102 Hawai ‘ i at 23 6, 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 86 5 , 869 ( 1997) (cleaned up)
. However, this strict construc tion rule, like the rule applicable to penal statutes g enerally, do es not perm it the co urt to ignore legislative int ent in th e face of statutory ambiguity, nor r equire the court to reject the construction

8 H RS § 641

- 13 provides in relevant part:

An appeal may be taken by and on behalf of the State from t he district or circuit co urts to the intermediate appella te court, sub ject to chapter 60 2, in all criminal matters, in the follow ing instances:

. . . . ( 7) From a pretrial order granting a motion for the suppression of evide nce, including a confession o r adm ission, or the retur n of property, in which case the appellate court shall give priority to the appeal and th e order s hall b e stayed pending the o u tcom e of the appeal [.]*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

23 that best harmonizes with the design of the st atute or t he end soug ht to be achieved. State v. Fukusaku , 85 Hawai ‘ i 462 , 492, 946 P .2d 32 , 62 (1997) (citations om itted)
. Section 641

- 13 does not e xpressly provide for a right of appeal from a motion f or reconsideration.
We agree with the State that , pursuant to B o hanno n , the ICA
nonetheless had appellate jurisdiction o ver the circ uit court ’ s order denying the State’s motion for reconside r ation. In Boh annon , the State’s notice of appeal concerning the district court’s order granting the defendant’s motions to supp ress and to dismiss did not expressly refer to the district co urt’s

re lated order denying the State’s motion for reconsideration
. 102 Hawai ‘ i at 2 35, 74 P.3d at 9 87. W e held the prosecution’s notice o f ap peal was nonetheless sufficient to appeal that ord er be cause the State’s “ inten t to ap peal ” from t he order de n ying its motion for reconsideration could be “ reasonably inferred
fr om its n otice of appeal
. ” Id. We agreed with the State that its “right to appeal from the order granting [ the defendant ’ s]

m otion to suppress under HRS § 641

- 13(7) encompasses a right to appeal from the order de nying its motion to recon sider the district court ’ s order granting the moti on to suppress.” 102
Hawa i ‘ i at 2 34, 74 P.3d at 9 86 (cleane d up )
. We noted that the district court ’ s or d er de nying the motion for reconsider ation*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

24 was “ m er ely an ex t ension of its order granting [the defendant’s] motions to suppress a nd to dismiss
. ” 102 Hawai ‘ i at 2 35, 74 P.3d
at 9 87. Here, p ursuant to Bohannon , the ICA had ap pella te ju risdiction over the circuit court’s order denying the Sta te’s
mot ion fo r reconsideration. A lthough HRS § 641

- 13 does not
expr essly authorize appeals by the State from orders denying motions to reco nsider pretrial orders gra nting the suppression of evidence , we have held HRS § 641

- 13(7) implicitly encompasses a right to appea l from such orders. Bohannon , 102 Hawai ‘ i at 2 34, 74 P.3d at 9 86.
T he ICA determined i t did not ha ve 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), wh ich applies to a ppeals of civil c ases, contains a provision expressly addressing post

- jud gmen t mot ions. It provides in relevant part ,

(3) Time to appeal affected b y post
- judg ment motion s. If any party files a timely motion
. . . to reconsider
. . . and court o r agency ru les specify t h e time by which the motion shall be filed, then the time for fil ing t he notice of appeal is extended for all parties until 30 days after entry of an order disposing of the motion. T he presi ding court or a gency in which the motion was file d shall dispose of any such post

- judgment motion by entering an order upo n th e re cord within 90 days after the date the moti on was filed. If the co ur t or agency fails to e nter an order on the record, then, within 5 days after the 90th day, the cle rk of the r elevant court or agency shall notify the parties that, by operation of thi s Ru le, t he post

- judgment motion is denied and that any orders entered thereafter shall be a nullity. Th e time of appeal shall ru n from the date of entry of the c ourt or agency’s order disposing of*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

25 the post

- judg ment motion, if the order is entered wit hin t he 90 days, or from the filing date of the cle rk’s notice to the parti es that the p ost
- judgmen t motion is denied pursuant to the operation of the Rule. The notice o f appeal sh all be deemed to appeal the disposition of all post

- judgment motions that a re timel y filed after entry of the judgment or order. The 90

- day period shall be computed as provi ded in Rule 26 of these R ules. HRAP Rul e 4(b), 9 which app lies to appeals of criminal case s, contains no si milar provision.

9 H RAP Rule 4(b) provides in full: (b) Appeals in criminal cases. (1) Ti me for filing. In a crimin al case, the notice of appe al shall b e file d within 30 days a fter entry of the judgment or order a ppealed from. Howev er, if the notice of appeal is mai led, the notice of appeal shall be deemed timely filed if the mailing is post marke d within the time fixe d for filing and is r ec eive d by the clerk no later th an 5 days after the postmar ked dat e. For t he purposes of calculating o t her deadlines in these Rule s, the date of filing under this Rule shall be the date the document is recei ved by the clerk. A m otion for leave to file an int erlocut ory ap peal from an order of the circuit court must be filed w ithin 30 days of the court ’s entry of the order. If s uch a motion is filed and granted, then the notice of appeal shall be filed w ithin 30 days after entry o f the circuit court’s o rder granting permission for l eave to file an interlocuto ry a ppe al. ( 2) Effect of motions in arr est of judgment or for new trial. If a timely motion in arrest of judgment under Rule 34 of the Hawai ʻ i Rules of Penal Procedure or for a new trial under Rule 33 of the Hawa i ‘ i Rules of Penal Procedure has been mad e, an appeal f rom a judgment of conviction may be taken within 30 days after the entry of any order denying the motion. (3) Entry of judg me nt or order defined. A judgment or order is ent ered 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 ord er but before entry of the judgment or order shall be deemed to have bee n filed on the date such judgment or orde r i s entered. (5) Extensions of time to file a notice of appeal. Upon showing of good cause, the circuit, district, or family court may, no late r than 30 days after the time has (continued
. . .)*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

26 HRAP Rule 4(b) , however, merely governs t imi ng requirements for filing app eals in criminal cases
. S ee Bohannon , 102 Hawai ‘ i
at 2 3 5 , 74 P.3d at 9 8 7
. In th is case, there is no jurisdicti onal issue r elated to t he timi ng o f the State’s filing of the notice of appeal
. 10 T he State ’ s April 11, 20 22 notice of appeal expressly and timely appealed bot h the March 28, 2022
ord er granting James’s motion to suppre ss and the Apri l 4, 202 2 order denying th e State’s motion for reconsideration
. And
pursua nt t o Bohannon , HRS § 641

- 13(7 ) “ encompasses a right ” for
the State to appeal from the circuit court’s o rder deny ing the
State’s motion for reconsideration
. See Bohannon , 102 Hawai ‘ i at 2 34, 74 P.3d at 9 86
. Therefore , the ICA erred in ruling it lacked appellate jurisdiction over the circuit c ourt’s order denying the State’s motion for reconsideratio n of the order granting motion to
sup press . B ased on our reasoning i n Sections I V .A and B above ,

(.
. .continued)

expired, on motion and notice, extend the time for filing a notice of appeal for a per iod not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision (b). Any such motion that is fi led before expiration of the prescribed time may be ex parte unless th e court otherwise requires.

10 As noted supra , the Stat e filed its notice of appeal on April 11, 2022, less than 30 d ays after the filing of both the circuit court’s order granting Jam e s’s m otion to suppress the text messages (filed on March 28, 2022) and order denying the State’s related motion for reconsider ation (filed on April 4, 2022). See HRAP Rule 4(b) (1)
.*** FOR PUBLICATION IN WEST’S HAWAI ʻ I REPORTS AND PACI FIC REPORTER ***

27 the circuit c ourt also erred by denying t he State ’ s motion for reconsideratio n. V. Conclusi on For the reasons explained above, w e vacate the IC A ’s May 31, 2023 judgment on appeal as well as the circuit cou rt ’s March 28, 202 2 FOF/COL/Order and A p ril 4, 20 2 2 order deny i ng the
Sta te ’s motion fo r reconsideration . We remand to the circuit court for further pro c eedings consistent with this opinion
. Tracy J. Murakami /s/ Mark E. Recktenwald for petitioner /s/ Sabrina S. McKenna Christian G. Enright for respondent /s/ T odd W. Eddins /s/ Lisa W. Cataldo / s/ Clarissa Y. Malinao