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NO. CAAP-22-0000260 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

STATE OF HAWAI‘I, Plaintiff-Appellant, 

v. 

DYLAN RIVER JAMES, Defendant-Appellee 

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT 

(CASE NO. 5CPC-20-0000051) 

SUMMARY DISPOSITION ORDER 

(By: Hiraoka, Presiding Judge, Nakasone and Chan, JJ.) 

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

from the March 28, 2022 Findings of Fact, Conclusions of Law 

and Order (FOFs/COLs) Granting Motion to Suppress Text Messages 

(Order Granting Motion to Suppress); and the April 4, 2022 Order 

Denying State's Motion to Reconsider Ruling on Motion to 

Suppress Text Messages (Order Denying Reconsideration),1 both 

1 We do not have appellate jurisdiction over the Order Denying 

Reconsideration, and thus do not address the State's fifth point of error 

regarding this order. The appeal is from a pre-trial suppression order under 

Hawaii Revised Statutes (HRS) § 641-13(7). In civil cases, 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." Hawai‘i Rules of 

Electronically Filed

Intermediate Court of Appeals

CAAP-22-0000260

20-APR-2023

07:54 AM

Dkt. 45 SO
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filed by the Circuit Court of the Fifth Circuit (Circuit Court).2

In the underlying case, Defendant-Appellee Dylan River James 

(James) was charged with five counts of first-degree sexual 

assault against the complainant (CW) that occurred on July 2, 

2015. 

 This appeal concerns the suppression of text messages 

that were exchanged between James and CW, in which James made 

admissions that he had sex with CW. On appeal, the State 

contends that the Circuit Court: (1) erred by finding in FOF 7 

that CW, "induced [James] via text message to admit that he had 

sexually assaulted her"; (2) that "[e]ven assuming that [CW] was 

in effect a government agent when she texted [James],"3 erred by 

concluding in COL 4 that the detectives violated James's Miranda

rights where James was "not in police custody"; and (3) erred by 

ultimately granting the suppression of the text messages.4 

 Upon review of the record on appeal and relevant legal 

authorities, giving due consideration to the issues raised and 

arguments advanced by the parties, we resolve the points of 

error as follows, and affirm. 

Appellate Procedure (HRAP) Rule 4(a)(3). There is no similar provision 

deeming the inclusion of all post-judgment motions for a notice of appeal in 

a criminal case, under HRAP Rule 4(b) (pertaining to "Appeals in criminal 

cases"). Thus, this court does not have jurisdiction over the Order Denying 

Reconsideration and has appellate jurisdiction under HRS § 641-13(7) over the 

Order Granting Motion to Suppress, only. 

2 The Honorable Randal G.B. Valenciano presided. 

3 On appeal, the State does not challenge the Circuit Court's 

determination that CW was acting as a "government agent" under the direction 

of the detectives. 

4 The State's points of error (POE) do not comply with HRAP Rule 

28(b)(4), which requires that the POEs be set forth in "separately numbered 

paragraphs." (Emphasis added). We have numbered POEs A, B, and D, as POEs 

1, 2 and 4, and we address these three POEs out of the five POEs raised. In 

light of our resolution infra, it is not necessary to address POE 3, which 

deals with whether James's right to counsel was violated. We also do not 

address POE 5 because we lack jurisdiction over the Order Denying 

Reconsideration. 
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 On December 21, 2021, James filed a Motion to Suppress 

Text Messages (Motion to Suppress) requesting that the July 2, 

20155 text messages between James and CW be suppressed on grounds 

that CW, as a government agent, violated James's right to 

privacy and "induce[d]" James to respond, and that the 

detectives were required to obtain a waiver of those rights 

prior to CW contacting James. James attached the following 

exhibits to the Motion to Suppress: (1) a partial transcript of 

the detectives' July 2, 2015 interview of CW; (2) July 2, 2015 

text messages between CW and James; and (3) a partial transcript 

of CW's testimony at the March 11, 2020 grand jury proceeding. 

 On February 4, 2022, the State filed its opposition to 

the Motion to Suppress (Opposition), in which it argued, inter 

alia, that even if CW was a government agent, James was not 

"subjected to a search and seizure, nor a custodial 

interrogation," and there was no "active deception or attempt to 

circumvent [James]'s rights." 

 At the February 24, 2022 hearing on the Motion to 

Suppress, no witnesses were called to testify. While the 

exhibits attached to the Motion to Suppress were not entered 

into evidence at the hearing, it is undisputed that the Circuit 

Court considered the exhibits as constituting the evidentiary 

record for the motion, and the parties do not contend otherwise.6 

This record reflects the following. 

5 July 2, 2015 is also the date of the charged offenses. 

6 At the February 24, 2022 hearing on the Motion to Suppress, the 

Circuit Court indicated that it had reviewed the motion and the attached 

exhibits. The FOFs/COLs refer to statements in these exhibits, i.e. FOFs 4-6 

(restating CW's and the detectives' statements in the July 2, 2015 interview 

transcript); FOF 7 (referring to the July 2, 2015 text messages between CW 

and James); and FOF 8 (quoting CW's testimony from the March 11, 2020 grand 

jury transcript). 
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 On July 2, 2015, Kaua‘i Police Department detectives 

Ray M. Takekawa (Detective Takekawa) and Darren Rose (Detective 

Rose) (collectively, Detectives) interviewed CW, who alleged 

that James had sexually assaulted her. That same day, CW also 

had an exam done by a nurse. After the interview, the 

Detectives instructed CW to contact James, and CW asked the 

Detectives, "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 – [sic]." CW attempted to call James twice, but 

James did not pick up. Detective Takekawa stated: "You want to 

try a text?" Detective Rose stated: "Give it a few minutes, 

about five minutes, and we'll try one more time." CW testified 

before the grand jury that at the "direction of Detective 

Takekawa," she texted James, and that "the detective told me 

just to try to get some sort of comment – comment on what had 

happened out of him, so I texted him that I was thinking about 

the night before." The following text messages were exchanged 

between CW and James:7 

[CW:] Sup,[8] just thinking about the other night haha. 

 

[James:] Lol,[9] that was fun [(winking face emoji)10] 

7 The text messages are quoted verbatim with footnotes throughout 

to clarify terms, abbreviations, and symbols used, as may be necessary. 

8 "Sup" is an "informal greeting equivalent to 'What's up?'" Sup, 

Merriam-Webster, https://www.merriam-webster.com/dictionary/sup (last visited 

Apr. 6, 2023).

9 "Lol" is an abbreviation for "laugh out loud." LOL, MerriamWebster, https://www.merriam-webster.com/dictionary/LOL/ (last visited Mar. 

24, 2023). 

10 "Emoji" is defined as "various small images, symbols, or icons 

used in text fields in electronic communication . . . to express the 

emotional attitude of the writer, convey information succinctly, [or] 

communicate a message playfully without using words[.]" Emoji, MerriamWebster, https://www.merriam-webster.com/dictionary/emoji (last visited Mar. 

24, 2023). Each emoji has a different meaning and can be found at the 

following site. freeCodeCamp, https://www.freecodecamp.org/news/all-emojisemoji-list-for-copy-and-paste/ (last visited Mar. 23, 2023). 
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[CW:] Haha what part, the bonfire? Lol 

[James:] Yeah, that too 

And the skinny dippin [sic] 

And something else crazy happened, tryin [sic] to remember 

wat [sic] it was... 

[CW:] Hahahah hmmm... Seems like there were two other 

things... Got a little rough [(winking face emoji)] does 

that ring a bell? 

[James:] Hmmm its kind of coming back to me... I do 

remember it being very rough [(smirking face emoji)] 

[CW:] Tell me your favorite part 

[James:] How bout [sic] I show you some time soon [(winking 

emoji)] 

[CW:] Hahaha not too soon though, I'm still sore lol 

Just tell me your favorite part in the mean time to tide me 

over [(winking face with tongue emoji)] 

[James:] Sore!? That was just a warm up! 

And it was that you did what I told you to do... What was 

yours? 

[CW:] The semi public locations haha. Never done that in a 

hamock [sic] before lol. I mean mostly sore from the part 

where I was screaming and trying to crawl away... You 

really don't take no for an answer lol. So idk[11] I feel 

kinda wierd [sic] about that part. 

[James:] Woah! I couldnt [sic] tell if you were serious or 

no [sic] to be honest... Thought it was some kind of 'role 

playin' or something? Sorry about that, i [sic] was a lil[12]

confused about that as well [(flushed face emoji)] 

Not* 

[CW:] Wait during which part? 

[James:] When you were screaming and crawling away by the 

lifeguard tower... Couldnt [sic] tell if you were serious 

11 "Idk" is an abbreviation for "I don't know." Idk, MerriamWebster, https://www.merriam-webster.com/dictionary/IDK/ (last visited 

Mar. 23, 2023). 

12 "Lil" is an abbreviation of the word "little." Lil, 

Dictionary.com, https://www.dictionary.com/e/slang/lil/ (last visited 

Mar. 23, 2023). 
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or wat [sic] was goin.[13] [sic] I was pretty confused... And 

sorry to put you in that situation, wasnt [sic] my 

intention at the time [(flushed face emoji)] 

(Footnotes added). 

 At the conclusion of the hearing, the Circuit Court 

orally ruled that CW was acting as a "government agent" and that 

James's rights were violated: 

 So in this case the Court finds that the police 

actively recruited the complaining witness. The Court also 

finds that the police directed the complaining witness. And 

part of the reason for that is they were telling her what 

to do, including when the phone -- when phone calls weren't 

answered, why don't you send a text and that type of 

detailed direction. The complaining witness didn't receive 

payment for services. 

 So when you look at the factors, the three remaining 

factors from Boynton -- because I'm taking out the 

motivation factor pursuant to the cases that the Court read 

-- the Court finds that the complaining witness was acting 

as a government agent. And so because the complaining 

witness was acting as a government agent, then there were a 

violation of the rights of Mr. James. 

 

And so the Court is going to grant the motion to 

suppress text messages. 

 On March 28, 2022, the Circuit Court filed its 

FOFs/COLs, in which the Circuit Court made the following 

pertinent FOFs and COLs: 

FINDINGS OF FACT 

1. The incident in this case is alleged to have occurred on 

July 2, 2015. 

2. On July 2, 2015, commencing at 5:55 p.m., Kauai Police 

Department Detective Ray M. Takekawa and Detective Darren 

Rose conducted an interview of the [CW]. 

3. At the conclusion of the interview, Detective Takekawa 

and Detective Rose directed CW to contact [James] and to 

discuss the incident upon which this case is based with 

him. 

13 "Goin" is an abbreviation for the word "going." Goin, 

NoSlang.com, https://www.noslang.com/search/goin (last visited Mar. 23, 

2023). 
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4. In the transcript of a recording designated "[CW] 

Pretext," CW is recorded as stating, "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 –" 

5. James did not answer CW's first call. In the transcript 

of a recording designated "[CW] Pretext Call 2," CW calls 

[James]'s phone and when the voicemail comes on CW asks the 

detectives, "Do I leave a message?" Detective Takekawa 

responded, "You want to try a text?" and Detective Rose 

adds, "Give it a few minutes, about five minutes, and we'll 

try one more time." 

6. In the transcript of a recording designated as "[CW] 

Pretext 2," CW makes another call to James and the 

voicemail again comes on. 

7. Subsequently CW contacted [James] via text message. 

Pursuant to the detectives' directions when she attempted 

to call [James], CW induced [James] to acknowledge that 

they had sex and that it was "rough" as well as other 

statements about the incident. 

8. At the Grand Jury CW was asked by the deputy prosecuting 

attorney "And after the incident, did you text message 

[James]?" CW responded "Yes, at the direction of Detective 

Takikawa [sic]." CW then went on to state "Well, the 

detective told me just to try to get some sort of comment – 

comment on what had happened out of him, so I texted him 

that I was thinking about the night before." 

CONCLUSIONS OF LAW 

. . . . 

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.2d at 302. In 

particular, CW was actively recruited by the detectives to 

call and then text [James]. Further, CW was directed by 

the detectives to text [James] and to induce him to discuss 

the incident. After CW was unable to reach [James] via a 

phone call, the detectives asked CW if she wanted to text 

[James]. The detectives then told CW to induce James to 

admit that they had sex. CW did not receive compensation 

from the detectives. 

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 [sic] 

prior to proceeding with the questioning. Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966); State v. 

Santiago, 53 Haw. 254, 266, 492 P.2d 657, 665 (1971). 
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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 Sixth amendment 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. 

6. Due the violation of [James]'s rights under both the 

U.S. and Hawai‘i constitutions, [James]'s statements are 

inadmissible in the instant case. State v. Eli, 126 Hawai‘i 

510, 521, 273 P.3d 1196, 1207 (2012). 

This appeal followed. 

(1) The State argues that the finding in FOF 7, that 

"CW induced [James] to acknowledge they had sex" was clearly 

erroneous because there was no finding or evidence that CW "had 

power over [James] to induce him to acknowledge, against his 

free will, that they had sex . . . ." 

 The State's argument presumes, without support in the 

record, that the word "induce," as used by the Circuit Court, 

meant that CW "had power" over James to overcome "his free 

will[.]" However, "induce" means "to move by persuasion or 

influence[,] to call forth or bring about by influence or 

stimulation[.]" Induce, Merriam-Webster, https://www.merriamwebster.com/dictionary/induce (last visited Mar. 24, 2023). 

"Government inducement" may involve "threats, coercive tactics," 

and may include "persuasion, fraudulent representations . . . ." 

United States v. Mack, 53 F.Supp.3d 179, 187 (D.D.C. 2014) 

(citation omitted). 

 A finding of fact is clearly erroneous when, despite 

evidence to support the finding, the appellate court is 

left with the definite and firm conviction in reviewing the 

entire evidence that a mistake has been committed. A 

finding of fact is also clearly erroneous when the record 

lacks substantial evidence to support the finding. 

Birano v. State, 143 Hawai‘i 163, 181, 426 P.3d 387, 405 (2018) 

(internal quotation marks and citations omitted). Unchallenged 

FOFs and COLs are binding. See State v. Rodrigues, 145 Hawai‘i 
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487, 494, 454 P.3d 428, 435 (2019) (citation omitted); Kelly v. 

1250 Oceanside Partners, 111 Hawai‘i 205, 227, 140 P.3d 985, 1007 

(2006). 

 Here, the Detectives "directed CW to contact [James] and 

to discuss the incident . . . ." FOF 3. In unchallenged COLs 3 

and 5, the Circuit Court determined that CW was a government 

agent. The transcripts of the recordings show that CW also asked 

for and received direction and clarification from the Detectives 

about what she was supposed to "get him [(James)] to admit," 

whether she should leave a message on James's voicemail, whether 

she should attempt a text message, and whether she should try one 

more time to call James. FOFs 4-6. Viewing the full context of 

the Circuit Court's findings in FOFs 3-6, where all of CW's 

actions to contact James and to obtain an admission from him were 

orchestrated by the Detectives, there was substantial evidence to 

support FOF 7's specific finding that when CW "induced" James to 

admit that they had sex, it was "[p]ursuant to the detectives' 

directions[.]" Thus, FOF 7 was not clearly erroneous. See 

Birano, 143 Hawai‘i at 181, 426 P.3d at 405. 

 (2) The State argues that COL 4 was wrong because 

James was not entitled to Miranda warnings prior to CW text 

messaging James, where James was not "in custody." The State 

asserts that James cannot be "in custody" when he "was nowhere 

near" the Detectives physically during the text messaging. The 

State also urges that the existence of probable cause does not 

dispositively entitle a suspect to Miranda warnings pursuant to 

State v. Sagapolutele-Silva, 151 Hawai‘i 283, 287, 511 P.3d 782, 

786 (2022), recently overruled by State v. Hewitt, 
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No. SCWC-16-0000460, 2023 WL 2523652 (Mar. 15, 2023).14 The 

State's argument lacks merit. 

 "Whether an accused's right against self-incrimination 

under the Hawai‘i constitution was protected through the use of a 

Miranda warning is a question of constitutional law, which this 

court reviews de novo under the right/wrong standard." State v. 

Kazanas, 138 Hawai‘i 23, 33, 375 P.3d 1261, 1271 (2016) (citing 

State v. Jenkins, 93 Hawai‘i 87, 100, 997 P.2d 13, 26 (2000)). 

 Miranda warnings are required when the defendant is 

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

94 Hawai‘i 207, 210, 10 P.3d 728, 731 (2000) (citation omitted). 

In Hewitt, the Hawai‘i Supreme Court recently held that the 

"Ketchum rule remains in effect: Miranda warnings are required 

by article I, section 10 of the Constitution of the State of 

Hawai‘i when probable cause to arrest has developed." 2023 WL 

2523652, at *10 (citing Ketchum, 97 Hawai‘i at 126, 34 P.3d at 

1025). 

 COL 4 provides: 

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 [sic] 

prior to proceeding with the questioning. . . . 

14 In Sagapolutele-Silva, the Hawai‘i Supreme Court overruled State 

v. Ketchum, 97 Hawai‘i 107, 34 P.3d 1006 (2001) and held that "the existence 

of probable cause [was] relevant, [but was] not dispositive in every case." 

151 Hawai‘i at 291, 511 P.3d at 790. Rather, the courts were required to 

"consider the totality of the circumstances." Id. On March 20, 2023, the 

State filed a statement of supplemental authority, stating that the supreme 

court "overruled" Sagapolutele-Silva in Hewitt, where the supreme court 

"reaffirmed the 'bright-line' rule articulated in" Ketchum that Miranda 

warnings are required when probable cause to arrest has developed. 2023 WL 

2523652, at *10. 
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The State does not dispute that the text messages constituted 

"interrogation" under the circumstances of this case. The State 

does not challenge the factual finding within COL 4 that James 

"was the only suspect" and the investigation had "focused on 

him." Thus, at the point the text messages were sent by the 

Detectives' agent, CW, the Detectives had probable cause to 

arrest James; and Miranda warnings were required before the 

Detectives could question James. See Hewitt, 2023 WL 2523652, 

at *10. Instead, however, the Detectives covertly engaged in an 

un-Mirandized interrogation of James, by having CW send 

suggestive text messages to James, using her personal mobile 

device to elicit intimate details of the incident. 

 The State's position that the text messages should not 

be suppressed because James received the text messages through 

CW rather than law enforcement is inconsistent with the purposes 

of Hawai‘i's exclusionary rule: "(1) judicial integrity, (2) the 

protection of individual privacy, and (3) deterrence of illegal 

police misconduct." State v. McKnight, 131 Hawai‘i 379, 398, 

319 P.3d 298, 317 (2013) (citation omitted). Allowing the 

circumvention of Miranda warnings by permitting law enforcement 

to engage in the undercover interrogation of suspects by 

directing the sending of, and dictating the content of, text 

messages using a government agent's personal mobile device does 

not preserve judicial integrity, protect individual privacy, and 

deter illegal police misconduct. See id. 

 We conclude that the Circuit Court was not wrong in 

COL 4 that James's constitutional rights were violated when, 

after he was the focus of the investigation, he was interrogated 

through text messages sent by CW, a government agent, without 

Miranda warnings. See Kazanas, 138 Hawai‘i at 33, 375 P.3d at 

1271. 
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 (3) In light of our disposition, the Circuit Court's 

suppression of the text messages as inadmissible evidence for 

trial was also not erroneous. See id. 

 For the foregoing reasons, we affirm the March 28, 

2022 Findings of Fact, Conclusions of Law and Order Granting 

Motion to Suppress Text Messages, filed by the Circuit Court of 

the Fifth Circuit. 

 DATED: Honolulu, Hawai‘i, April 20, 2023. 

On the briefs: 

Tracy Murakami, 

Deputy Prosecuting Attorney 

for Plaintiff-Appellant. 

David M. Hayakawa, 

for Defendant-Appellee. 

/s/ Keith K. Hiraoka 

Associate Judge 

/s/ Karen T. Nakasone 

Associate Judge 

/s/ Derrick H.M. Chan 

Associate Judge