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State v. Wallace7/22/2004
e police have subjected the person to an unlawful "de facto" arrest without probable cause to do so.
Id. at 126, 34 P.3d at 1025.
In the present case, the circuit court concluded in COL 7 that, "[w]hen Officer Adachi developed the conclusion that Defendant knew more about the vehicle than what he was saying, the questioning ceased to be brief and casual and became sustained and coercive, requiring Miranda warnings." Based on the record, we cannot agree.
It is undisputed that it was Wallace who returned to the vehicle and approached Officers Adachi and Rowe of his own volition. It is also uncontroverted that it was Wallace who initiated conversation with the officers by asking, "[W]hat was going on, what [they] were doing, what's up with the truck." After Wallace walked around the vehicle and indicated that he wanted the cigarettes out of the vehicle, Officer Adachi, thinking Wallace's actions were suspicious, asked Wallace what he knew about the vehicle, including whether he knew who was driving the vehicle or whether anybody else was in the vehicle. At this point, Officer Adachi's questions were brief and casual and clearly constituted noncustodial, on-the-scene questioning. In other words, Officer Adachi's questions were investigatory in nature, designed to confirm or dispel his suspicion that criminal activity was afoot.
Thereafter, when Wallace responded that he was at the scene when "haole Jeff" pulled up in the vehicle, parked it and fled, it is undisputed that "Wallace appeared nervous and jittery, would not make eye contact, and he kept playing with his clothes." Additionally, as the circuit court found in FOF 29, which the prosecution does not dispute, "[b]ased on the fact that [Wallace] matched the description of the driver coupled with his unusual behavior, Officer Adachi came to the conclusion that [Wallace] knew more than what he was telling police."
As previously indicated, the circuit court ruled that it was at this juncture that Wallace was in custody for Miranda purposes inasmuch as "the questioning ceased to be brief and casual and became sustained and coercive [.]" The record, however, evinces merely that, after being Mirandized, Wallace "eventually admitted that he was driving the vehicle, and that Jeff was with him in the vehicle." In other words, the record does not reveal with any degree of specificity the nature of the question or questions asked by Officer Adachi in eliciting Wallace's incriminating statement about driving the vehicle. Absent this evidence, we are unable to conclude as the circuit court did that, under an objective assessment of the totality of the circumstances, the questioning became sustained and coercive thereby triggering the protections afforded by Miranda. This conclusion is patently unsupported by the record.
Nonetheless, Wallace claims that:
Although Officer Adachi testified that Wallace was free to leave if he wanted to, there is no evidence in the record that this information was conveyed to Wallace. In fact, Officer Adachi directed Wallace "to stand to the side" while police were continuing their investigation of the truck. And, certainly at the point where Officer Adachi began to inform Wallace of his constitutional rights and instructed him to initial the police form, it would have been reasonable for Wallace to believe that police *1285 viewed him as a suspect and that he had to remain at the scene with police. Given Officer Adachi's conduct and show of authority, a reasonable person would not feel free to walk away.
Wallace appears to be arguing that an objective assessment of the totality of the circumstances reflects that the point of arrest had arrived because he was subjected to unlawful de facto arrest without probable cause to do so. Again, we cannot agree.
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