Lead Opinion
Opinion of the Court by
The plaintiff-appellant State of Hawaii [hereinafter, the “prosecution”] appeals from the findings of fact (FOFs), conclusions of law (COLs), and order of the first circuit court, the Honorable Russell Blair presiding, granting the defendant-appellee Burt T. Ket-chum’s motion to suppress. On appeal, the prosecution asserts that the circuit court erred in suppressing Ketchum’s responses, on three separate occasions, to Honolulu Police Department (HPD) officers’ questions regarding his residential address; in each instance, he indicated that his address was 91-467B Fort Weaver Road. Specifically, the prosecution contends that COL Nos. 5 through 9
I. BACKGROUND
At approximately 7:00 a.m. on January 26, 2000, a team of law enforcement officers from three different HPD divisions executed a search warrant upon a residence located at 91-467B Fort Weaver Road.
SSD Officer Alan Masaki’s assignment, as a member of the SSD “entry team,”
“[AJbout a minute or so” after entering the bedroom, Officer Masaki asked Ketchum for his “personal information,” including his residential address;
According to Officer Masaki, his purpose in asking Ketchum to provide his address was to include it in a “follow-up report to identify the occupant that I located.”
Officer Masaki also testified that he was aware, due to his training as a police officer, that establishing Ketchum’s address as the same as that where drug contraband was found would assist in prosecuting him for constructive possession of any drug contraband subsequently discovered in the residence. However, Officer Masaki denied questioning Ketchum “in any way about this particular investigation.” Officer Masaki’s encounter with Ketchum lasted only “a few minutes,” which ended when he “turned [Ketchum and Wright] over,” “without any incident,” to the NVD officers.
Meanwhile, the remainder of the “entry team” had “secured” the other occupants of the residence. In a second bedroom [hereinafter, “Bedroom 2”], officers located two of Wright’s teenage sons and her teenage daughter and, in the living room, Wright’s third son, also a teenager. According to HPD Officer George Flores,
Within approximately ten minutes of his encounter with Officer Masaki, Ketehum was photographed in Bedroom 1 and escorted, together with the other occupants of the residence, to a “central location”'—in this case, the residence’s garage. At some point during this time frame, an officer “flex handcuffed” Ketehum “with plastic ties.”
NVD Detective Robert Towne’s assignment was to “supervise the men assigned to do what we call the booking,” which occurred in the garage. Detective Towne testified at the suppression hearing that, once the SSD entry team indicated that “all [is] clear,” the occupants were photographed where they were found within the residence and then moved to the garage so that they could be “booked.”
As for obtaining Ketchum’s address as part of the “field booking” process, Detective Towne asserted that the information appearing on the “booking sheet”—a preprinted HPD form that, generally, an arresting officer completes by hand in the field and that contains an arrestee’s “personal information,” including his or her address—assisted in “identifying the person” and was helpful in the event that it became subsequently necessary to serve a summons upon or otherwise contact the arrestee. However, Detective Towne acknowledged that, as a result of his training as a police officer, he was aware of the concept of “constructive possession” and that, in this case, establishing Ketchum’s address as that at which drug contraband was found would assist in prosecuting him. The record fails to reflect, inter alia, that an officer advised Ketehum of his right against self-incrimination at any time before or during the field booking process.
HPD Officer Michael Kaya
Detective Towne confirmed that, in a raid such as that conducted in the present case, officers on the scene complete a “booking sheet” with regard to each arrestee. As a general matter, Detective Towne asserted that, when the police conduct a drug raid, anyone located within the building is not allowed to leave because they are “suspects” regarding either actual or constructive possession of drug contraband. Detective Towtne further explained that, as a general practice, if an individual is located in a room in which drugs are subsequently found, then the individual is arrested “regardless if that’s where he [or she] lives or not.” However, if no incriminating evidence is discovered in the same room as a “visitor,” then “we will release [the visitor] as soon as possible.”
NVD Detective Renold Itomura was the “case supervisor.” His task was to “oversee the [execution of the] warrant, the booking process, ... the arrest, and the collection of evidence.” Approximately thirteen hours after the raid, Detective Itomura sought to inteiview Ketchum, who had remained in custody since his arrest at the police station. Detective Itomura advised Ketchum, inier alia, of his constitutional rights to remain silent and to have an attorney present during any questioning. On an HPD “waiver” form, Ketchum indicated that he understood his rights, did not want an attorney, but did not want “to tell [Detective Itomura] what hap-penedf.]” In response to Detective Itomu-ra’s request, Ketchum signed and dated the form and wrote his address, “91-467 Ft Weaver Rd,” on blank lines on the form predesignated for each piece of information. Like Officer Masaki and Detective Towne, Detective Itomura knew, as a result of his training as a police officer, that Ketchum’s admission regarding his address would assist in prosecuting him.
II. STANDARD OF REVIEW
The circuit court’s determinations that police officers had subjected Ketchum to “custodial interrogation,” on two separate occasions, absent the warnings required by article I, section 10 of the Hawaii Constitution (1982), quoted infra in section III, and, on a third occasion, in disregard of Ketchum’s invocation of his right to remain silent, constitute conclusions of constitutional law, which, consequently, this court reviews de novo on appeal, unde the “right/wrong” standard; to the extent that these conclusions of law implicate constitutional questions, this court freely “exercise[s][its] own independent constitutional judgment, based on the facts of the case.” State v. Ah Loo,
III. DISCUSSION
In granting Ketchum’s motion to suppress, the circuit court concluded in relevant part:
5. Ketchum, from the point he was detained by Officer Masaki, was in custody.
*116 6. At ■ the point that Officer Masaki questioned Ketchum, Ketchum was a focus of police investigation. Officer Masaki knew, or should have known, that his communication regarding Ketchum’s address was reasonably likely to elicit an incriminating response as to the constructive possession of the drug contraband.
7. Information as to Ketchum’s address gathered by Detective Towne suffers from the same constitutional infirmities as that gathered by Officer Masaki.
8. As to subsequent questioning by Officer Itomura at the station, it is again the case that Officer Itomura subjected Ket-chum to custodial questioning. And again, the routine booking question exception does not apply, as Officer Itomura knew, or should have known, that his request to have Ketchum provide his address was reasonably likely to elicit an incriminating response as to the [charge of] constructive possession of drug contraband.
9. Furthermore, Officer Itomura obtained from Ketchum an express refusal to discuss the case. Once the right to counsel has been invoked, all questioning must cease. State v. Mailo,69 Haw. 51 ,731 P.2d 1264 (1987). Herein, once Ketchum was informed of his right to counsel, and thereafter refused to speak, Officer Itomu-ra proceeded to request Ketchum’s address. Said request was improper.
(Internal capitalization altered.). The prosecution argues that these COLs are wrong. Before addressing the prosecution’s arguments, we review the principles of constitutional law that are germane to our analysis.
A. Article 1, Section 10 Of The Hawai'i Constitution
Article I, section 10 of the Hawaii Constitution provides in relevant part, that “[n]o person shall ... be compelled in any criminal case to be a witness against oneself.” In State v. Santiago,
requires that before reference is made at trial to statements made by the accused during custodial interrogation, the prosecutor must first demonstrate that certain safeguards were taken before the accused was questioned.... [T]he prosecutor must show that each accused was warned that he [or she] had a right to remain silent, that anything said could be used against him [or her], that he [or she] had a right to the presence of an attorney, and that if he [or she] could no[t] afford an attorney one would be appointed for him [or her].... [U]nless these protective measures are taken, statements made by the accused may not be used either as direct evidence in the prosecutor’s case in chief or to impeach the defendant’s credibility during rebuttal or cross-examination.16
Id. The Santiago court expressly “base[d] [its] decision on [its] belief that the privilege against self-incrimination bestows on every accused the right to choose whether or not to confess to the commission of a crime.” Id. Thus, “[i]n order to protect that freedom of choice, we believe that every accused[ ] must be informed of the fact that he [or she] has certain rights under the Hawaii Constitution.” Id. As we observed in Santiago, article I, section 10 “maintains [the] ... value of protecting the accused’s privilege to freely
The “Miranda, rule,” as Santiago and our subsequent cases makes clear, is, at core, a constitutionally prescribed rule of evidence
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 his [or her]
1. Interrogation
Generally speaking, “ ‘interrogation,’ as used in a Miranda context, [means] ‘express questioning or its functional equivalent.’ ” Ah Loo,
Be that as it may, the Intermediate Court of Appeals (ICA) has held that,
during an investigative stop or after an arrest, requests for items of information within the “routine booking question exception” are not, in most cases, interrogation. These items of information are: name, address, height, weight, eye color, date of birth, current age, Pennsylvania v. Muniz,496 U.S. 582 ,110 S.Ct. 2638 ,110 L.Ed.2d 528 (1990), and, logically, social security number.
State v. Blackshire,
Applying the “routine booking question exception” in Blackshire, the ICA held that an officer’s inquiries regarding the defendant’s name, phone number, and domicile “were not interrogation because [the questions]' came within the routine booking exception.”
The ICA’s formulation of the routine booking question exception impliedly acknowledges that the “exception” is, when scrutinized, no real exception at all. Rather, whether a question is a “routine booking question,” the answer to which, generally speaking, is not reasonably likely to be incriminating, is simply an aspect of the totality of the circumstances considered in determining whether the questioning officer has subjected the accused to “interrogation.” As the ICA itself observed in Blackshire, to the extent that a police officer reasonably should have known that his or her question was likely to elicit an incriminating response, the officer’s question, even if a “routine booking question,” constitutes “interrogation.”
This court has never expressly adopted the “routine booking question exception” as a matter of state constitutional law.
Accordingly, we reaffirm the principle that “interrogation” consists of any express question—or, absent an express question, any words or conduct—that the officer knows or reasonably should know is likely to elicit an incriminating response. See, e.g., Ikaika,
We pause, at this point, to address the prosecution’s concern, which we share, that law enforcement officers must not be precluded from engaging in “legitimate” on-the-scene questioning that is “necessary to [a] criminal investigation.” Indeed, we have in the past expressly recognized that the Miranda rule was never intended “to hamper law enforcement agencies in the exercise of their investigative duties or in the perfor-
On the facts of the present matter, by questioning the occupants of the residence to determine who was a visitor and who was not, we do not believe that the officers conducted their investigation in an illegitimate fashion. They certainly could make such inquires, up to the point of arrest, in order to legitimately establish whom to arrest.
2. Custody
“To determine whether ‘interrogation’ is ‘custodial,’ we look to the totality of the circumstances, focusing on ‘the place and time of the interrogation, the length of the interrogation, the nature of the questions asked, the conduct of the police, and [any] other relevant circumstances.’ ” Ah Loo,
Nonetheless, we discern a point along the spectrum “beyond which on-the-seene [questioning]” becomes “custodial,” such that article I, section 10 precludes the prosecution from adducing a defendant’s resulting statement at trial unless the question has been preceded by the requisite Miranda warnings. Ah Loo,
As we reaffirmed in Ah Loo,
temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and them right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and [has] become sustained and coercive (footnote omitted).
Hoffman,73 Haw. at 54 ,828 P.2d at 813 (quoting Melemai,64 Haw. at 482 ,643 P.2d at 544 ); Patterson,59 Haw. at 362-63 ,581 P.2d at 755-56 (quoting People v. Manis,268 Cal.App.2d 653 , 669,74 Cal.Rptr. 423 (1969)). In other words, “whether the investigation has focused on the suspect and whether the police have probable cause to arrest him [or her] prior to questioning” are relevant considerations in determining whether a person is “in custody.” Melemai,64 Haw. at 481 ,643 P.2d at 544 ; see also Patterson,59 Haw. at 361-63 ,581 P.2d at 755-56 .
Accordingly, on the other side of the “point along the spectrum” stands the proposition, equally axiomatic, that a person whom an officer has formally and “physically” arrested
However, determining the precise point at which a temporary investigative detention has ripened hito a warrantless arrest is no more susceptible to a blight-line rule than is determining when a suspect is “in custody.” See, e.g., United States v. Sharpe,
Although there is no simple or precise bright line delineating when “the point of arrest” has arrived, it is well settled that a temporary investigative detention must, of necessity, be truly “temporary and last no longer than is necessary to effectuate the purpose of the [detention]”—i.e., transpire for no longer than necessary to confirm or dispel the officer’s reasonable suspicion that criminal activity is afoot. Sharpe,
Moreover, while no single factor, in itself, is dispositive as to when a temporary investigative detention has morphed into an arrest, the potential attributes of “arrest” clearly include such circumstances as handcuffing, leading the detainee to a different location, subjecting him or her to booking procedures, ordering his or her compliance with an officer’s directives, using force, or displaying a show of authority beyond that inherent in the mere presence of a police officer, as well as any other event or condition that betokens a significant deprivation of freedom, “such that [an] innocent person could reasonably have believed that he [or she] was not free to go and that he [or she] was being taken into custody indefinitely,” Kraus v. County of Pierce,
In summary, we hold that a person is “in custody” for purposes of article I, section 10 of the Hawai'i Constitution if an objective assessment of the totality of the circumstances reflects either (1) that the person has become impliedly accused of committing a cilme 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.
We now turn to the prosecution’s arguments in the present appeal.
B. Officer Masaki’s Elicitation Of Ket-chum’s Address
With respect to Officer Masaki’s elicitation of Ketchum’s address, the prosecution challenges the circuit court’s COL Nos. 5 and 6, citing Ah Loo for the proposition that, notwithstanding that police officers had “briefly detained” Ketchum and, therefore, had “seized” him, he was, nevertheless, not “in custody” when Officer Masaki questioned him. Thus, the prosecution posits that Miranda. warnings were not foundational to the evidentiary admissibility of the substance of Ketchum’s response to Officer Masaki’s question regarding his address. In his answering brief, Ketchum concedes that, inasmuch as this court overruled Blackshire in Ah Loo to the extent that Blackshire had held that a person “seized” within the meaning of article I, section 7 of the Hawai'i Constitution was, as a per se matter, “in custody” for purposes of article I, section 10, the circuit court erred in relying upon Blackshire.
With respect to whether Officer Masaki’s question constituted “interrogation,” the record reflects that it was obviously not “reasonably designed to confirm or dispel—as briefly as possible and without any coercive connotation by either word or conduct—[a] reasonable suspicion that criminal activity was afoot.” Ah Loo,
The question whether Ketchum was, at the point Officer Masaki elicited his address, “in custody” is admittedly a difficult one. It cannot be said that Officer Masaki’s questions were so sustained or coercive as, in and of themselves, impliedly to accuse Ketchum of committing a crime, nor does Ketchum argue that they were. Moreover, the record reflects that probable cause to arrest Ket-chum had not yet developed, insofar as the drug contraband predicating the charges against Ketchum was apparently not discovered until well after Officer Masaki posed his questions. Nevertheless, the totality of the circumstances reflect that an innocent person in Ketchum’s shoes could reasonably have believed that he or she was not free to go and was being taken into custody indefinitely; thus, the point of “de facto ” arrest had arrived and, for purposes of article I, section 10 of the Hawaii Constitution, Ketchum, therefore, was “in custody.”
Given the layout and relatively compact size of the apartment, as well as the fact that the door accessing Bedroom 1 from the central living room stood open, see supra note 4, Ketchum could not but have been aware that numei’ous police officers had forcibly opened the front door, entered the apartment, and were in the process of “securing” the occupants of the apartment. It was in this context that Officer Masaki encountered Ket-chum and Wright in Bedroom 1, announced his office and purpose, and ordered Ketchum and Wright to display their hands. In relatively rapid succession thereafter, Officer Masaki elicited from Ketchum his address and “turned [him] over” to the team of NVD officers while Officer Flores was serving Wright with the warrant to search the same bedroom, and another officer photographed both Ketchum and Wright where they had been discovered in Bedroom 1. Ketchum, along with all of the other occupants of the premises, was then escorted to the garage, subjected to “field booking” procedures, and, at some point, flex handcuffed. Both Detective Towne and Officer Kaya acknowledged in them testimony that, once in the garage, Ketchum was “under arrest,” and, according to Officer Flores, Ketchum was “formally” arrested when drug contraband was located in Bedroom 1, an event that, as we have noted, apparently did not occur until after Ketchum had been escorted to the garage and subjected to the field booking procedures.
The circumstances surrounding Ketchum’s questioning contrast sharply with those surrounding Ah Loo’s, which transpired within the context of a lawful temporary investigative encounter by three patrol officers in a public place and accompanied by no greater exhibition of authority than that inherent in the officers’ mere presence and no display of force whatsoever. See Ah Loo,
We believe, on the record before us, that the point of “de facto ” arrest (albeit that the arrest was unsupported by probable cause) had arrived before Officer Masaki elicited Ketehum’s residential address—and, therefore, that Ketchum was “in custody” for purposes of article I, section 10—-for the simple reason that, given the totality of the circumstances described above, an “innocent person [in Ketchum’s position] could [indeed, would] reasonably have believed that he [or she] was not free to go and that he [or she] was being taken into custody indefinitely,” Kraus,
C. The Elicitation Of Ketchum’s Address During The Field Booking Procedure
The prosecution challenges the circuit court’s COL No. 7, asserting that the address Ketchum provided to an officer who, under the supervision of Detective Towne, was filling out the “booking sheet” fell within the “routine booking question exception.” In light of our discussion supra in section III. A.l, we construe the prosecution’s argument to be that the officer did not “interrogate” Ketchum. The prosecution does not dispute that, at the time the officer elicited the information necessary to complete the booking sheet, Ketchum was “in custody” for purposes of article I, section 10; nor does the prosecution contend that the officer did not expressly question Ketchum regarding his address. Rather, the prosecution argues that “[t]he booking questions were necessary to the criminal investigation[ ]” and that they were “straight-forward, non-accusatory in nature, and legitimate.” By contrast, Ketchum maintains that, inasmuch as the officer knew or should have known that the question was likely to elicit an incriminating response, the “routine booking question exception” does not apply.
As the prosecution asserts, obtaining Ket-chum’s residential address was crucial to determining whether there was probable cause to “formally” arrest Ketchum and, thus, was a reasonable component of the officers’ investigation, insofar as, according to Detective Towne, whether any given occupant of the premises was a visitor partially informed the officers’ decision whether to arrest that occupant. As we have indicated, however, the Miranda rule does not preclude police officers engaged in a drug raid of a residence from asking questions designed to determine whether an occupant is a visitor. So long as the point of arrest has not yet arrived, an officer is unfettered by article I, section 10 from asking such questions in the course of his or her investigation or relying upon an occupant’s response to assess whether probable cause to arrest the occupant has developed. Nor does the Miranda rule preclude an officer from asking questions of an arres-tee that are necessary for the sole purpose of “booking” him or her. The point is that, if the “booking” officer knows or reasonably should know that a “routine booking question” is likely to elicit an incriminating response, he or she must administer the requisite warnings and obtain a valid waiver of the arrestee’s relevant constitutional rights before posing the question if the prosecution, in a subsequent criminal prosecution of the ar-restee, is to be permitted to adduce evidence of the arrestee’s response without running afoul of article I, section 10 of the Hawai'i Constitution. Inasmuch as Ketchum was, in fact, under arrest and, therefore, “in custody” at the time he was subjected to the field booking procedures, we turn to the question whether the field booking officer “interrogated” him.
Although the officer asked Ketchum for the information necessary to complete the “booking sheet” shortly after Ketchum was arrested, the information was not gathered in a traditional station house or other formal booking station. The record is devoid of any evidence that the officer who obtained the information from Ketchum was ordinarily involved in booking defendants. And, most significantly, the officer reasonably should have known—inasmuch as (1) he or she is presumed to be aware of the concept of constructive possession, see, e.g., State v. Roman,
We hold that the “booking” officer obtained Ketchum’s admission regarding his address as a result of “custodial interroga
D. Detective Itomura’s Elicitation Of Ketehum’'s Address
With regal'd to Detective Itomura’s request that Ketehum provide his address on the form indicating that he understood his relevant constitutional rights, the prosecution challenges the circuit court's COL Nos. 8 and 9 by arguing that Detective Itomura did not “interrogate” Ketehum because he did not “design [the question] to elicit incriminating information.”
Ketehum expressly indicated on the form that he did not wish to “tell” Detective Ito-mura “what happened,” thereby expressly invoking his right to remain silent. Nonetheless, Detective Itomura requested that Ketehum, inter alia, write his address on the form. That the “request,” according to Detective Itomura, “wasn’t a question,” is irrelevant, inasmuch as the request called for a response and, at the very least, was the “functional equivalent” of express questioning, see, e.g., Ah Loo, 94 Hawai’i at 210,
IV. CONCLUSION
In light of the foregoing, we affirm the first circuit court’s findings of fact, conclusions of law, and order granting Ketchum’s motion to suppress.
Notes
. We quote COLs Nos. 5 through 9 infra in section III.
. The record reflects that the search warrant authorized a search of both the "two bedroom residence located at 91-467 B Fort Weaver Road” and "the person of ... Donna Mae Wright.” The object of the search was to obtain evidence of Wright's alleged drug dealing. The search warrant expressly named only Wright and did not name Ketehum. Wright is not a party to this appeal.
. Of the forty SSD officers assigned to the “raid” team, twenty were assigned to an "entry team”— of which nine made the initial entry into the residence—and twenty were assigned to secure the perimeter of the residence.
.In his "Follow Up Report,” attached as "Exhibit A" to the prosecution’s memorandum in opposition to Ketchum’s motion to sever his trial from Wright’s, Officer Masaki described his encounter with Ketchum and Wright as follows:
I proceeded into the residence and turned left into the first bedroom. The door was in the open position and 1 immediately encountered two adults lying on the bed. 1 stated Police, we have a search warrant. I then instructed them to show me their hands and they complied without incident.
Another officer’s follow-up report included a diagram of the two bedroom apartment. This diagram depicted the front door as opening directly into a living room, with an opening to the kitchen (located across the living room opposite the front door) in the opposite living room wall. Bedrooms 1 and 2 were separated by a bathroom, the doors to all three opening into a slight recess at the left side of the living room. The right wall of Bedroom 1 was partially shared by the left wall of the living room, the remainder of Bedroom l’s right wall forming an outside wall that stood directly to the left of the apartment’s front door, outside of which the nine entry officers gathered before forcibly opening the front door.
. Officer Masaki testified at the suppression hearing' that the information he obtained from Ketchum consisted of "[j]ust his personal information regarding his name, date of birth, Social Security number, address[,] height, [and] weight.”
. Officer Masaki’s "Follow Up Report,” see supra note 4, indeed includes, under the subheading "Occupants Identified,” Ketchum’s name, age. Social Security number, date of birth, height, weight, and address, as well as Ketchum’s phone number and the color of his eyes and hair. The report does not, however, indicate how Officer Masaki obtained this information.
. Officer Flores was assigned to "oversee" the execution of the search warrant. He had obtained the search warrant, and it appears that he was a member of the initial entry team. Officer Flores did not testify at the suppression hearing.
. Officer Flores's police report, attached as "Exhibit A” to Ketchum's motion for a bill of particulars or, in the alternative, to dismiss, reflects that at "about" 6:49 a.m. the officers "executed the search warrant” and that they “secured” the "scene ... at about” 6:55 a.m., which was then "turned over” to the NVD officers "at about” 6:57 a.m. Officer Flores served the warrant upon Wright "at approximately” 6:50 a.m.
. Detective Towne's "Follow Up Report,” attached as "Exhibit A" to the prosecution's memorandum in opposition to Ketchum's motion to suppress, stated that he "waited until the all clear sign was given by the Special Services Division before entering the home.” In his report, he further asserted, under the heading “Persons Detained,” that,
La)fter being given the all clear sign by the Special Services Division, the location of all persons within the house were noted down by Officer Gabur and then escorted from the house to the open garage area where information such as their name date of birth etc. was obtained.
(Internal capitalization omitted.) Detective Towne's report also indicates that "[ajrrest and [wjarrant checks were also performed at this time.”
. In its proffer at the suppression hearing regarding Officer Kaya’s testimony, the prosecution asserted that he was "the arresting officer.” However, the record reflects some confusion with respect to the particular officer who formally "arrested” Ketehum. Officer Flores's affidavit, see supra at 5, asserted that he "placed ... under arrest” Ketehum, Wright, and Wright's two eldest sons. And, at the preliminary hearing, Officer Flores testified that he had formally arrested Ketehum, Wright, and Wright’s two eldest sons:
Q. Based on what was found within ... bedroom [1J were [Ketehum and Wright] eventually placed under arrest?
A. Yes, they were.
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Q. And after they were placed under arrest, specifically talking about Mr. Ketehum, did you obtain general information from him[,] such as date of birth, residence^] that type of thing?
A. Yes.
Q. And as far as his residence, where did he tell you he resided at?
A. Information was given that he resided at the address, 91-467 Bravo, Fort Weaver Road.
Officer Flores clarified, however, that he was not the officer who had flex handcuffed Ketehum:
Q. Officer, did you arrest Mr. Ketehum?
A. I was the arresting officer.
Q. So, you're the person who puts on the cuffs and so forth?
*114 A. No, I wasn't the person who put on the cuffs.
Q. Okay, who did that?
A. I’m not sure at this time.
Officer Flores further clarified that he was not the officer who had actually questioned Ketchum regarding Ketchum’s personal information and that it was HPD Officer Itomura who first informed him that Ketchum had stated that his address was 91-467B Fort Weaver Road. As to when and by whom Ketchum was handcuffed, Officer Flores could be no more precise than to acknowledge that, at some point, "officers were directed to put the cuffs on.” Officer Flores’s police report, see supra note 8, also asserts that he "arrested” Ketchum, Wright, and Wright's two eldest sons "[biased on the observations of” officers who conducted the search and located drug contraband in both Bedrooms 1 and 2. However, the testimony adduced at the suppression hearing is silent with regard to when and by whom Ketchum was formally arrested.
. The circuit court examined Officer Kaya with regard to the “field booking procedure” as follows:
THE COURT:.... Normally^] who fills out the booking sheet, is it the arresting officer or is it somebody other than the arresting officer?
[OFFICER KAYA]: Sir, it could go either way. If there’s an arresting officer, sometimes they'll do it. If there’s another person available, which on that day there w[ere] numerous people, numerous officers around, they may assist him by filling it out for him.
THE COURT: So any officer on the scene with the information might fill out the booking [sheet]?
[OFFICER KAYA]: Yes. It’s—it’s kind of a fill in the blank worksheet, so to speak, just to make sure we have all the necessary information.
THE COURT: So that’s handwritten and then when you get back to the Pearl City station or whatever station, that’s handed over to the person who is manning the booking station?
[OFFICER KAYA]: Yes.
THE COURT: And they take that handwritten information and type it up?
[OFFICER KAYA]: Yes.
TPIE COURT: In the booking procedure, have you ever been assigned, by the way, to do a booking?
TOFFICER KAYA]: Yes, while I was at the receiving desk.
THE COURT: Okay. Do you get the information, when you’re doing a booking, a defendant comes in, do you just take the information off the booking sheet or do you [tjry to confirm that with the defendant at the time of the booking or—
[OFFICER KAYA]: You usually take it right off of the booking [sheet] unless there's any information that's contradictory, missing, or if maybe there’s some information right on the computerf, such as that] the individual’s been arrested previously, it may. But in most cases you just [take the information] right off of the booking sheet.
THE COURT: So that the data for booking is actually acquired in the field rather than at the booking desk?
[OFFICER KAYA]: Yes, it is.
. Specifically, Detective Towne testified, under cross-examination by Ketchum’s counsel, as follows:
A. Our—our general practice would be, say if he’s found in what we designate as Bedroom 1, if we find evidence in Bedroom 1 he’ll be arrested.
Q. Okay.
A. Regardless if that’s where he lives or not.
Q. Okay. And that’s because he’s found in Bedroom 1?
A. Correct.
Q. Now, if you were to go in and you determine that somebody was a mere visitor—
A. Correct.
Q. —isn't there a chance that you could say, he, you can—you can leave to that person?
*115 A. Yeah. Say we go in there and Jane Doe is a visitor, she’s, say, she's in the living room and there’s nothing incriminating, no evidence in the living room, we will release her as soon as possible.
Q. Okay. But in this situation, Burt Ket-chum is in the bedroom where drugs are found, correct?
A. Correct.
Q. So you didn’t release him; correct?
A. Detective Itomura could probably answer that question a little better than I could.
. Officer Flores's police report, see supra note 8, and Detective Towne’s report, see supra note 9, reflect that, at approximately 8:10 a.m., Detective Towne found a black leather purse, inside of which were two glass pipes with a cloth pouch; each pipe contained a whitish residue. Also inside the purse were seven small clear plastic bags, five of which contained a whitish residue, and a "small coin type purse.” The black purse also contained two lighters and a "metal scraper type rod.”
HPD Officer Donald Marumoto also located various items of alleged drug contraband in Bedroom 1 between 7:10 a.m. and 7:40 a.m. Officer Marumoto found some of these items on a desk, in close proximity to three envelopes addressed to Wright. He found the remainder of these items in a dresser drawer, which also contained "a lot” of "woman’s clothes.” Officer Marumoto did not testify at the suppression hearing. In Bedroom 2, an officer located a “sentry sale" atop a dresser; inside the safe, the officer found three plastic bags containing a crystalline substance and six packets of what appeared to be marij uana.
Ketchum filed a motion for a bill of particulars, which sought clarification as to “the location of the alleged dangerous drugs and drug paraphernalia alleged to have been illegally possessed by Ketchum when discovered by police.” In its memorandum in opposition, the prosecution responded that Ketchum was "charged with all of the drugs and drug paraphernalia located within the bedroom where he was found lying on the bed." At the hearing conducted in connection with Ketchum’s motion for a bill of particulars, the prosecution maintained its position that the drug contraband located in Bedroom 1 predicated the charges against Ketchum.
. At the lime that this court published its opinion in Santiago, the protection against self-incrimination was, in language identical to that presently set forth in section 10 (section 10's gender neutrality aside), contained in article I, section 8.
. The fifth amendment to the United Slates Constitution provides in relevant part that "[n]o person ... shall be compelled in any Criminal Case to be a witness against himselff.]” Because we decide this matter on the basis of state constitutional law, we do not address the question whether the officers violated Ketchum’s constitutional rights under the United States Constitution.
.With respect to precluding the introduction of custodial statements at trial for the purpose of impeaching a defendant, article I, section 10 accords greater protection to an accused than does the fifth amendment. See Santiago,
. Cf. Dickerson v. United States,
. The present matter does not raise the question whether Ketchum’s statements were "voluntary,’’ as a matter of substantive constitutional due process, under either article I, section 5 of the Hawai'i Constitution (1978) or the fourteenth amendment to the United States Constitution. See, e.g., State v. Bowe,
. The concurring and dissenting opinion "dis-agreefs] with the totality of the circumstances formulation seemingly adopted” by us "in this case.” Acoba and Ramil, JJ., concurring in part and dissenting in part [hereinafter, "concurring and dissenting opinion”], at 129,
. That there is such an "exception” to the Miranda warnings required as a matter of federal law is beyond dispute. See, e.g., Muniz,
. We expressly decline to adopt, as a broad "exception” tb the required warnings, the rule that, if an officer expressly asks an arrestee for biographical data necessary for booking or pretrial services, the arrestee’s response is not, as a per se matter, suppressible under article I, section 10 so long as the officer did not specifically inLend—or, to use Justice Brennan’s word, did not "design”—the question to elicit an incriminating response. See Muniz,
. If relevant, subsidiary considerations may include: (1) the nexus, if any, between the question asked and tire booking process, on the one hand, and the alleged offense, on the other; (2) whether the question was asked at the scene of the arrest or in a traditional station house or other formal booking setting; (3) whether the officer who asked the question would ordinarily be involved in the formal booking process; and (4) whether tire question was asked within a reasonable time after the person was arrested. See, e.g., Foster,
. The concurring and dissenting opinion disagrees that whether a particular question is in the nature of a routine booking question should be "absor[bec!J into a 'totality of the circumstances’ test.” Concurring and dissenting opinion at 132,
. As will be seen, however, see infra section III.A.2 and III.B, the point of arrest had arrived, and Ketchum was, therefore, "in custody,” before he was asked for his residential address.
. As noted supra in note 19, the analysis contained in this section addresses the point at which it may be said that a person is "in custody” for purposes of triggering Miranda warnings and, in the main, is focused upon describing the circumstances that are sufficient to constitute a "significant" deprivation of a person’s freedom of action (and, therefore, sufficient to render the person "in custody” for Miranda purposes), even though the person has not been formally arrested. By locating these circumstances around the "point of arrest,” be it formal or de fado, we do not limit ihc application of Miranda only to those situations in which a person has been formally arrested, as the concurring and dissenting opinion seems to claim. See concurring and dissenting opinion at 132-33,
. Ketchum urges a nonretroactive application of this court's holding in Ah Loo. Generally, "judicial decisions are assumed to apply retroac-tivelyl.]" State v. Peralto,
. We use the term "arrest” in this opinion to mean "physical” arrest. Cf. State v. Vallesteros,
. Although the circuit court's COLs do not cite Blackshire, in orally ruling upon Kelchum's motion to suppress, the circuit court, after briefly recessing lo "reread Blackshire in light of [the Intermediate Court of Appeals' decision in State v.] Ah Loo,"
... [T]he [c]ourt rules that the motion to suppress is granted. The police officers obviously were focused on Mr. Ketchum and they knew or reasonably should have known that the procedure, the booking procedure if you will, would result in incriminating statements. And, therefore, I believe they were obligated, under Blackshire, to comply with the formalities before questioning him and did not do so at the scene questioning regarding his domicile or residence.
. The prosecution does not contest that Ket-chum was "in custody" when Detective Itomura requested that he write his address on the waiver form or that Ketehum invoked, and did not waive, his right to remain silent.
Concurrence Opinion
Opinion of
concurring in part and dissenting in part,
I concur in the result reached, but must disagree with the totality of circumstances formulation seemingly adopted in this case. The facts of this ease call for a straightforward application of fundamental precepts established in Miranda v. Arizona,
I.
Miranda extends the constitutional privilege against self-incrimination to out-of-court statements obtained from an individual during custodial interrogation. See id. at 461,
Accordingly, in my view, the appropriate framework in which Miranda issues should be resolved is whether (1) after having been either (a) taken into custody or (b) deprived of freedom of action in a significant way by the police, see
II.
Proceeding from the foregoing framework, this case may be directly resolved.
A.
The police executed a search warrant for drugs at a Fort Weaver Road residence. In this context, a search warrant for drugs would only issue on probable cause to believe drugs would be found on the premises at the time the warrant was executed. See Hawai'i Rules of Penal Procedure (HRPP) Rule 41(a); Hawai'i Revised Statutes (HRS) § 803-31 (Supp.2000); State v. Scott,
According to Detective Robert Towne, during the execution of the warrant, none of the persons found on the premises were permit
Detective Towne ordered an unnamed officer to conduct “field booking” of Ketchum at the premises, apparently a process in which Ketchum’s address was obtained and recorded on a preprinted booking form. At the point where Ketchum was apparently again questioned about his address, he was handcuffed and plainly in custody. Detective Towne agreed that, at that point, Ketchum was in “custody.” Ketchum’s custody status for the purposes of Miranda did not change thereafter. Detective Towne conceded, and the field booking officer should have known, that express questioning concerning Ket-chum’s address would elicit an incriminating statement.
Officer Michael Kaya obtained the field booking sheet and transported Ketchum to the police station for formal booking because he was under “arrest.” At the police station, Detective Renold Itomura, through the constitutional rights form, confirmed that Ket-chum was in “custody.” Detective Itomura gave Ketchum the Miranda warnings. Although Ketchum indicated he did not want to relate “what happened,” the detective requested that Defendant write his address on the form. While this request was not an express question, it was the functional equivalent of interrogation, that is, “words or actions on the part of the police ... that the police should know are reasonably likely to elicit an incriminating response!,]” Innis,
B.
Although Plaintiff-Appellant State of Ha-wai'i (the prosecution) contends that the address request fell within the “booking exception” to Miranda, i.e., that such a request usually would not be considered interrogation, that exception does not apply if the officer knew or should have known the booking question would elicit an incriminating response.
[a]s amicus United States explains, “recognizing a ‘booking exception’ to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect’s Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatoiy admissions.” Brief for United States as Amicus Curiae 13. See, e.g., United States v. Avery,717 F.2d 1020 , 1024-1025 (6th Cir.1983); United States v. Mata-Abundiz,717 F.2d 1277 , 1280 (9th Cir.1983); United States v. Glen-Archila,677 F.2d 809 , 816, n. 18 (11th Cir.1982).
Whereas the address booking question in this case was one that the police knew or should have known would elicit an incriminating response, the booking question exception would not apply. See Muniz,
III.
The deprivation of freedom of action aspect of Miranda was implicated, but not directly addressed, in State v. Ah Loo,
While I joined in Ah Loo because a seizure does not necessarily mean a person is “in custody,” Miranda is not limited to instances where a person “is taken into custody” as recited supra, but also extends to instances in which “a person ... has been ... otherwise depiived of Ids [or her] freedom of action in any significant way.”
A purported “seizure” then that deprives a person of his or her freedom of action in any significant way satisfies the first Miranda precondition in the same way as taking a person into custody. See United States v. Salvo,
IV.
Thus, in applying the principles embodied in Miranda, we have examined whether the defendant was deprived of his or her freedom of action in any significant way. In State v. Russo,
Similarly, in the instant case, it cannot be reasonably disputed that from the moment the police entered Ketchum’s bedroom and told him he could not leave, Ketchum could not have had a reasonable belief that he was “free to go” and, thus, was deprived of his freedom of action in a significant way. Because the deprivation of freedom standard gives lucid and comprehensible guidance to individuals, the police, counsel, and our trial courts, there is nothing to be gained, in applying Miranda, principles, from absorbing it into a unified “custody” test that eliminates the distinction between being taken into custody and being deprived of freedom of action in any significant way.
Hence, I do not agree that the question of whether Ketchum was “taken into custody” by Officer Masaki “is admittedly a difficult one.” Majority opinion at 127,
V.
Although in any particular case, the circumstances as they relate to a particular aspect of the Miranda rule may be relevant, in the sense that the factual context must be consulted to resolve any ambiguity as to whether a coercive setting exists, a formulaic totality of the circumstances approach is not called for in every case, and, therefore, should not be incorporated into a governing test. Thus, a totality of circumstances approach that involves inter alia whether (1) the police “questions were so sustained or coercive
VI.
As the Supreme Court has indicated, the Miranda, doctrine was intended “to give concrete constitutional guidelines for law enforcement agencies and courts to follow.”
VII.
Moreover, in its formulation, the holding in the instant case adopts a “custody” test that imposes significant limitations on the protections afforded by Miranda. See majority opinion at 126,
Nor is the second prong of “point of arrest” explicative of the Miranda, preconditions for establishing a coercive setting. As to the subcategories of this prong, “probable cause to arrest” may exist in certain situations, but it is not a Miranda precondition and in reality raises the threshold for mandatory warnings, inasmuch as being taken into custody or deprived of freedom of action would otherwise suffice to invoke Miranda,. As to the second subcategory, the presence of an unlawful “de facto” arrest begs the question; if the circumstances are sufficient
VIII.
For the foregoing reasons, I concur in the result in this case but not in the methodology by which it is reached or in the test that ostensibly emerges.
. I agree that the ultimate interrogation issue is whether the police know or should know that any express questioning or the functional equivalent thereof would have elicited an incriminating response under the circumstances.
. Article 1, section 10 of the Hawai'i Constitution states in pertinent part that no person “shall ... be compelled in any criminal case to be a witness against oneself.”
. Miranda principles are nol curbs on police investigations. They relate only to matters that the prosecution later seeks to introduce at trial, matters that may be provable through sources and by evidence other than communications compelled under inherently coercive circumstances. The police are forewarned as to when such warnings are required, inasmuch as warnings are necessary only if the police know or should know that the response they seek will be incriminating. Thus, whether the police choose to give Miranda warnings in any situation is something only they can determine in light of their assessment of the case.
. The seminal Hawaii case that suggests that a person faces custodial interrogation when “the questioning has ceased to be brief and casual and becomes sustained and coercive” is State v. Patterson,
persons temporarily detained for brief questioning by police officers who lack probable cause to make an arrest or bring an accusation need not be warned about incrimination and their right to counsel, until such time as the point of arrest or accusation has been reached or the questioning has ceased to be brief and casual and become sustained and coercive.
Icl. at 433. The Manis decision relied on Miranda to reach this conclusion and also referred in a footnote to a New York statute and the Uniform Arrest Act that explained that police may ask a suspect for general information such as his or her name, address, and "an explanation of his [or her] actions.” Id. at 433 n. 5. However, Miranda nowhere premises the alternative coercive settings it posits on sustained and coercive questioning.
. While probable cause was required to support the search warrant, probable cause to arrest Kel-chum would constitute a separate matter.
. See also supra note 1.
. Of course, insofar as questioning is relevant in the Miranda context, even a single question suffices to invoke the Miranda strictures if the officer knew or should have known that an incriminating statement would be elicited, see Innis,