CONSTITUTIONAL RIGHT AGAINST SELF-INCRIMINATION
The Fifth Amendment to the United States Constitution guarantees that “[no] person . . . shall be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the United States Supreme Court extended the Fifth Amendment privilege against self-incrimination to individuals subjected to custodial interrogation by the police. The court addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation.
WHAT ARE MIRANDA RIGHTS / WARNINGS?
The Miranda decision held: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
In Virginia, Miranda warnings include the following rights: the suspect must be warned that he has a right to remain silent, that any statement he makes may be used as evidence against him, and that he has the right to have an attorney, either retained or appointed, present to assist him. These warning apply to a very limited situation. The suspect must be 1) in police custody, and 2) there must be a police interrogation. Thus, being arrested without anyone interrogating you does not entitle you to Miranda warnings.
WHAT HAPPENS IF MIRANDA RIGHTS ARE VIOLATED IN VIRGINIA?
A violation of this right raised by a properly argued motion in court will lead to a suppression of any statement that you made to the police – which means that those statements cannot be used against you in court – they will simply be non-existent at your trial.
WHEN DO MIRANDA RIGHTS HAVE TO BE READ TO YOU BY THE POLICE?
However, the exact instances when Miranda warnings must be read to a suspect are not clear. Even though Miranda warnings are required whenever a suspect is subject to a custodial interrogation, not every detention constitutes a custodial interrogation for purposes of Miranda. Police officers are not required to administer Miranda warnings to everyone whom they question, and Miranda warnings are not required when the interviewee’s freedom has not been so restricted as to render you in custody.
Let’s review custody. A suspect is in custody for purposes of Miranda only if he has been arrested or if his freedom of action has been curtailed to a degree associated with arrest. The determination depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. Therefore, if a reasonable person in the suspect’s position would have understood that he was under arrest, then the police are required to provide Miranda warnings before questioning.
Courts look at the following factors in determining if a person was in custody before he was questioned: (1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical restraint, (5) the duration and character of the interrogation, and (6) the extent to which the officers’ beliefs concerning the potential culpability of the individual being questioned were manifested to the individual. No single factor, by itself, however, is dispositive of the issue of whether a suspect was in custody for purposes of Miranda. Courts also look at whether you were physically restrained, whether firearms were drawn, whether there was physical contact, whether you were confined in a police car, whether police told you that you were free to leave, whether police engaged in other incidents of formal arrest such as booking, whether your friends or relatives were present, whether more than one officer was present, the officers’ demeanor during the encounter, the length of the questioning, the nature of the questions asked, and whether the subject was uniquely susceptible to intimidation.
Below are recent cases that apply facts to these standards of analysis for Miranda rights. Each case is a different example of how/when Miranda rights apply to a suspect.
RECENT VIRGINIA SUPREME COURT AND APPEALS CASES DEALING WITH MIRANDA RIGHTS
Commonwealth v. Bowman, Va: Court of Appeals 2007
Calvin Lamont Bowman, Jr. stands indicted for bank robbery and related charges. The Commonwealth appeals the pretrial ruling of the trial court granting Bowman’s motion to suppress his statements made to police shortly after his arrest. The Commonwealth contends the trial court erred in ruling that Bowman’s inculpatory statements were inadmissible because they resulted from police interrogation conducted in violation of his Miranda rights. For the following reasons, we affirm the trial court.
On appeal of a trial court’s ruling on a motion to suppress, “the burden is upon [the appellant] to show that the ruling . . . constituted reversible error.” McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation and internal quotation marks omitted). Where the motion was granted, we review the evidence in the light most favorable to the accused, the prevailing party below, together with all reasonable inferences that may be drawn from it. Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901 (1995).
Bowman was arrested in Maryland for his alleged involvement in a bank robbery in Vienna, Virginia. His charges in this case arise from that robbery. Within a day or two of his arrest, two Fairfax County Police Department detectives and an agent with the Federal Bureau of Investigation met with Bowman in a Maryland county jail, as part of their robbery investigation. Bowman was being held there while awaiting extradition to Virginia. The officers met with him in an interrogation room in the jail for more than an hour and a half. Approximately twenty-five minutes into the meeting, Detective Needles advised Bowman of his Miranda rights, after which Bowman executed a waiver of those rights. Both before and after the Miranda warnings were given and the Miranda waiver was executed, Bowman made numerous inculpatory statements to the officers regarding the bank robbery.
Bowman filed a pretrial motion to suppress all of his inculpatory statements on the grounds the statements were obtained in violation of his Fifth Amendment right against self-incrimination, as protected under the procedural safeguards of Miranda v. Arizona, 384 U.S. 436, 478 (1966). More specifically, Bowman argues that his pre-Miranda warning statements were the product of a custodial police interrogation, as defined in Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980), and that his post-Miranda warning statements were the product of a deliberate two-step interrogation strategy designed to circumvent Miranda, a tactic proscribed in Missouri v. Seibert, 542 U.S. 600 (2004) (plurality opinion). After reviewing the Commonwealth’s evidence presented at the suppression hearing, the trial court agreed with Bowman and ordered that all of Bowman’s inculpatory statements to the officers were inadmissible. The Commonwealth subsequently filed this pretrial appeal pursuant to Code § 19.2-398(A)(2) challenging the order.
“Miranda warnings are implicated . . . during a custodial interrogation.” Bailey v. Commonwealth, 259 Va. 723, 745, 529 S.E.2d 570, 583 (2000) (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)); see Innis, 446 U.S. at 300 (“[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”). “‘Failure to give Miranda warnings prior to custodial interrogation requires suppression of any illegally obtained statements.'” Timbers v. Commonwealth, 28 Va. App. 187, 194, 503 S.E.2d 233, 236 (1998) (quoting Blain v. Commonwealth, 7 Va. App. 10, 13, 371 S.E.2d 838, 840 (1988)); see Commonwealth v. Thornton, 24 Va. App. 478, 488, 483 S.E.2d 487, 491 (1997) (An accused “subjected to custodial police interrogation” must first be advised of his Miranda rights in order “for any statement he makes to be admissible.”).
Suppression of post-warning inculpatory statements may be required when police use a “[deliberate] two-step questioning technique,” whereby an in-custody suspect is given mid-interrogation Miranda warnings preceded by the suspect’s inculpatory statements made during the first stage of the interrogation. Seibert, 542 U.S. at 620 (Kennedy, J., concurring opinion). “When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.” Id. at 621.
Here, it is undisputed Bowman was in custody at the time the three officers met with him. Therefore, the issues in this case are: (a) whether Bowman’s inculpatory statements made during the pre-warning phase of the meeting resulted from an interrogation; and (b) if so, whether his inculpatory statements made during the post-warning phase of the meeting resulted from a deliberate two-step questioning technique such as to render his mid-interrogation Miranda warnings ineffective, under the applicable standards set forth in Seibert.
(i) Bowman’s Pre-Miranda Warning Inculpatory Statements
A person in custody may be subjected to interrogation by “either express questioning or its functional equivalent.” Innis, 446 U.S. at 300-01. In other words, “the term ‘interrogation’ under Miranda . . . [includes] any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301. The “‘Innis standard'” thus presents a question of law, “‘requiring [our] determination whether an objective observer would view an officer’s words or actions as designed to elicit an incriminating response.'” Hilliard v. Commonwealth, 43 Va. App. 659, 674, 601 S.E.2d 652, 659 (2004) (quoting Blain, 7 Va. App. at 15, 371 S.E.2d at 841). See Timbers, 28 Va. App. at 193, 503 S.E.2d at 236 (“We review de novo questions of law and the trial court’s application of defined legal standards to the particular facts of a case.”).
We agree with the trial court that Bowman’s pre-warning inculpatory statements were the product of a police interrogation. It is clear that during those first twenty-five minutes of his meeting with the officers, as the trial court concluded, “Mr. Bowman’s inculpatory statements were preceded by the investigator’s repeated inquiry not only as to the name of Mr. Bowman’s alleged accomplice, but also as to Mr. Bowman’s role in the robbery.” “Given that (1) an innocent person does not have an accomplice, (2) Mr. Bowman could not discuss his accomplice without also placing himself at the scene, and potentially without revealing his own actions, and (3) the investigators included two police detectives and a federal agent extremely familiar with the practice of interrogation,” the court aptly reasoned, it is “plain” that a reasonable investigator “should have realized that the subject matter of the topic of the conversation as well as the investigator’s actual statements likely would elicit incriminating responses from Mr. Bowman.”
The trial court thus correctly ruled that Bowman’s pre-warning inculpatory statements are inadmissible because they resulted from what amounted to a custodial interrogation of an unwarned suspect.
(ii) Bowman’s Post-Miranda Warning Inculpatory Statements
Having determined that Bowman’s pre-warning statements were the product of a custodial interrogation, we must now decide the admissibility of his post-warning statements under Seibert.
The United States Supreme Court has twice addressed the admissibility of a defendant’s inculpatory statements obtained after Miranda warnings were given, but preceded by the defendant’s earlier, unwarned inculpatory statements, first in Oregon v. Elstad, 470 U.S. 298 (1985), and then in Seibert, 542 U.S. 600. In Elstad, the Supreme Court held that “subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id. at 314. Under Elstad, “[t]he relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.” Id. at 318.
In Seibert, the Supreme Court formulated an exception to Elstad, which is a “test applicable only in the infrequent case” where the police have used “a two-step questioning technique based on a deliberate violation of Miranda.” Seibert, 542 U.S. at 620-22 (Kennedy, J., concurring). Under Justice Kennedy’s concurring opinion in Seibert, the trial court must suppress post-warning inculpatory statements obtained through a deliberate two-step interrogation strategy, predicated on rendering the mid-interrogation Miranda warnings ineffective, unless the police take specific “curative measures.” Id. at 622. Such measures “should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” Id.
In adopting this subjective test requiring deliberate or intentional police misconduct, Justice Kennedy rejected the plurality’s “objective inquiry” that would have been applicable “in the case of both intentitional and unintentional two-stage interrogations,” which, in Justice Kennedy’s opinion, “cuts too broadly.” Id. at 621-22. Justice Kennedy reasoned that “Miranda’s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity.” Id. at 622. He thus favored the “narrower test” applicable only where the “two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id.
In the instant case, the trial court made a finding that the officers deliberately engaged in a two-step interrogation strategy during Bowman’s interview, as proscribed in Seibert under Justice Kennedy’s subjective standard. The appellate standard we use to review this finding is a matter of first impression for a Virginia appellate court. We conclude, as the Ninth Circuit did recently in United States v. Narvaez-Gomez, 489 Fd 970, ___, 2007 U.S. App. LEXIS 13021, *6 (9th Cir. 2007), that this “deliberateness finding is appropriately reviewed as a factual finding.” See United States v. Mashburn, 406 F.3d 303, 306-10 (4th Cir. 2005). And “we are bound by the trial court’s findings of historical fact unless ‘plainly wrong’ or ‘without evidence to support them.'” McGee, 25 Va. App. at 198, 487 S.E.2d at 261 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).
From our review of the record, we cannot say the trial court’s finding of a deliberate violation of Miranda under Seibert was plainly wrong or without evidence to support it. The trial court made this finding based not only on the recording and transcript of Bowman’s interrogation, but also on the testimony of Detective Needles. After reciting Justice Kennedy’s subjective test in its opinion, the court specifically found that the officers “plain[ly] . . . conducted [the proscribed] two-step strategy” in such a way as to “eventuate in [Bowman’s] restatement of inculpatory statements made in the pre-Miranda phase as well as further admissions.” The trial court also explained that, while Detective Needles denied “deliberately engag[ing] in a two-step strategy,” he offered the court no “plausible explanation why Miranda warnings were not given at the beginning of the interview.” Under familiar principles, “it is the province of the [trier of fact], rather than an appellate court, to weigh the facts and to judge the credibility of the various witnesses.” Ford v. Commonwealth, 48 Va. App. 262, 268, 630 S.E.2d 332, 335 (2006). Finally, it is undisputed that no curative measures of any kind were taken during Bowman’s interrogation. Thus, we conclude that Bowman’s post-warning inculpatory statements are also inadmissible.
For these reasons, we affirm the trial court’s ruling to suppress all of Bowman’s inculpatory statements made during his interrogation conducted by the three officers at the Maryland county jail shortly after his arrest.
Affirmed.[*] Pursuant to Code § 17.1-413, this opinion is not designated for publication.  Miranda v. Arizona, 384 U.S. 436 (1966).  In this case, Bowman is charged with two counts of robbery in violation of Code § 18.2-58, abduction in violation of Code § 18.2-48, and three counts of using a firearm in the commission of robbery and abduction in violation of Code § 18.2-53.1. He was also charged with felony unauthorized use of a vehicle in violation of Code § 18.2-102.  Only the Commonwealth presented evidence at the suppression hearing. See, e.g., Sellers v. Commonwealth, 41 Va. App. 268, 272, 584 S.E.2d 452, 455 (2003), and Timbers v. Commonwealth, 28 Va. App. 187, 194, 503 S.E.2d 233, 236 (1998) (explaining the Commonwealth’s burden of poof upon a defendant’s motion to suppress under Miranda).  “Because Seibert is a plurality decision and Justice Kennedy concurred in the result on the narrowest grounds, it is his concurring opinion that provides the controlling law.” United States v. Street, 472 F.3d 1298, 1313 (11th Cir. 2006) (citing United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1136 n.6 (11th Cir. 2006); Romano v. Oklahoma, 512 U.S. 1, 9 (1994); Marks v. United States, 430 U.S. 188, 193 (1977)); see United States v. Mashburn, 406 F.3d 303, 308-09 (4th Cir. 2005) (same).  The Supreme Court reasoned that it would be
an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.
Elstad, 470 U.S. at 309. Therefore, “[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring).  In his concurring opinion, Justice Kennedy provides specific examples of remedial measures that may be sufficient. Seibert, 542 U.S. at 622. As explained, supra, no such measures are presented for our review in the instant case.  Prior to oral argument in this appeal, we issued an order directing counsel to be prepared to address, inter alia, whether “the trial court [made] a finding of a deliberate use of the two-step interrogation process proscribed in [Seibert].” During oral argument, the Commonwealth conceded the trial court made this finding, specifically acknowledging that the trial court found “there was a deliberate intent to circumvent Miranda” by the officers’ two-step interrogation strategy. This Court is entitled to rely on this concession because it is a concession of a factual finding, as addressed supra. See Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc) (“‘A party can concede the facts but cannot concede the law.'” (quoting Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990))). We nevertheless reach the same conclusion based on our own review of the record.  The trial court also made an alternative ruling under an objective test, consistent with Justice Souter’s plurality opinion: that “[i]rrespective” of the “subjective intent” of Detective Needles (the only interrogating officer who testified at the suppression hearing), a “reasonable police officer” should have known that Bowman’s two-step interrogation was in violation of Miranda. We reject this ruling, as the trial court’s subjective inquiry, consistent with Justice Kennedy’s concurring opinion, is the correct approach. See, infra, footnote 4. In other words, of the trial court’s two, alternative rulings, it is the court’s ruling under the subjective test that “legally constitute[s] a freestanding basis in support of the trial court’s decision.” Johnson v. Commonwealth, 45 Va. App. 113, 117, 609 S.E.2d 58, 60 (2005).
White v. Commonwealth, Va: Court of Appeals 2009
A jury convicted Monte Leshon White (appellant) of possession of a firearm by a convicted felon, pursuant to Code § 18.2-308.2. On appeal, he argues that the trial court erred both 1) in finding that the police had probable cause to seize the firearm and reasonable suspicion to detain appellant and 2) in finding that the police did not violate his Fifth Amendment rights as provided under Miranda v. Arizona, 384 U.S. 436 (1966). We find the police had probable cause to seize the firearm and reasonable suspicion to detain appellant. However, we also find that the police violated appellant’s rights in this particular factual situation when they asked him questions while they were handcuffing him without first informing him of his Miranda rights. Therefore, given the requirements in Miranda, we hold the trial court erred when it denied his motion to suppress his statements regarding the firearm, and we reverse and remand his conviction for a new trial if the Commonwealth be so inclined.
On the evening of July 21, 2006, Officer Howe and Trooper Flaherty were patrolling in the Gilpin Court area of Richmond, when they saw appellant sitting alone in the driver’s seat of a parked white Cadillac. They circled the block and then parked behind the Cadillac, just as appellant was getting out of that car. The officers met appellant on the sidewalk and asked if he would talk to them.
Appellant began talking to Officer Howe while Trooper Flaherty used a flashlight and examined the interior of the Cadillac. Then, while Trooper Flaherty talked to appellant at the rear of the Cadillac, Officer Howe looked into the car with his flashlight. After looking through the front windows several times, Officer Howe determined that he saw the “butt-end of a weapon underneath the armrest of the center console” of the Cadillac. The armrest was folded down, covering the weapon so that “the butt of the magazine . . . was flush with the vertical edge of the armrest.”
Officer Howe then told Trooper Flaherty, from across the car, to put appellant in handcuffs. When the trooper asked why, Officer Howe reached into the car, took out the gun, put it on the roof of the car, and said, “for this.” Trooper Flaherty began handcuffing appellant, and at the same time Officer Howe asked appellant if the gun belonged to him. Appellant said, “no, it doesn’t belong to me, but I pushed it underneath there when I seen you coming.” According to Officer Howe, appellant “knew why he was being detained.” After he was handcuffed, the officer explained to appellant that, if “nothing c[a]me back” from a weapons check, then appellant would be released on a summons.
During pretrial hearings, appellant argued that the firearm was not concealed and that, therefore, the officers did not have probable cause to seize it from the Cadillac. He also argued that the officers did not have probable cause to arrest him when they handcuffed him. Alternatively, he argued that, even if he was legally detained, the police began questioning him without informing him of his Miranda rights, so his statements to the police should be suppressed. The Commonwealth argued that “the statement made . . . almost simultaneously with [the trooper] putting [appellant] in handcuffs was not the product of unconstitutional question[ing].”
The trial court found that appellant was detained “at the point they put the cuffs on him.” The court then made other findings and, as a result, suppressed items recovered after the handcuffing, but the court did not suppress the firearm, which was recovered prior to the handcuffing. The court also found the officers should have Mirandized appellant after he was handcuffed, so the court suppressed most of appellant’s statements to the officers. However, the trial court explained, “With respect to that statement that was made simultaneously, the Court is going to go back to it’s [sic] original ruling. I’m not going to deal with that statement today. I think that was simultaneous. I think that comes in.” Therefore, the firearm and statement that appellant made while being handcuffed (that the firearm was not his, but he did hide it when he saw the officers) were admitted during the jury trial.
On appeal, when reviewing the denial of a motion to suppress, this Court examines the evidence presented at the trial level in the light most favorable to the Commonwealth and defers to the factual findings of the trial court. Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999). “However, we review de novo the trial court’s application of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case.” Id.; see also Medley v. Commonwealth, 44 Va. App. 19, 34, 602 S.E.2d 411, 418 (2004) (en banc) (“[O]ur standard of review requires us to conduct a de novo review of the application of the protections afforded by Miranda to the historical facts as found by the trial court.”). An appellant has the burden to show that a trial court erred in denying his motion to suppress. Hayes, 29 Va. App. at 652, 514 S.E.2d at 359.
I. Seizure of the Firearm and Detention of Appellant
Appellant contends that the firearm was not hidden in the Cadillac and that it was not “about his person,” therefore, the trial court erred in finding the officer had probable cause to seize the gun as evidence of a crime. He also argues that the officers did not have reasonable suspicion to believe that he was committing a crime and, thus, to detain him, so the trial court should have suppressed his statement. We find the officers had probable cause to seize the firearm and reasonable suspicion to detain appellant, as the evidence would allow a reasonable person to believe appellant had committed a crime and that the firearm was evidence of that crime.
Appellant is correct that, when Officer Howe seized the firearm from underneath the center armrest of the Cadillac, he did not know that appellant was a convicted felon. Therefore, he did not have probable cause or reasonable suspicion to believe appellant was violating Code § 18.2-308.2. However, the criminal code in Virginia includes more than one offense involving a firearm. For example, Code § 18.2-308(A) criminalizes the carrying of a firearm “about [one’s] person, hidden from common observation.” We find Officer Howe did have probable cause to believe appellant was violating this code section once the officer saw the weapon hidden under the armrest. As reasonable suspicion is a less stringent standard than probable cause, see Alabama v. White, 496 U.S. 325, 330 (1990) (“Reasonable suspicion is a less demanding standard than probable cause . . . .”), our finding that the officers had probable cause to believe the firearm was evidence that appellant was committing a crime necessarily subsumes and includes a finding that the officers also had reasonable suspicion to detain appellant once they saw the firearm. Thus, the police legitimately seized both the firearm and appellant.
Appellant argues that the firearm was not hidden and, therefore, that the police did not have probable cause to seize the gun or reasonable suspicion to detain him. However, the evidence, viewed in the light most favorable to the Commonwealth, as we must view the evidence given the Commonwealth prevailed in the trial court, Hayes, 29 Va. App. at 652, 514 S.E.2d at 359, proved that Trooper Flaherty did not see the firearm, although he looked into the interior of the Cadillac using his flashlight. Officer Howe then looked into the car with his flashlight. He determined that the item under the armrest was a firearm only after looking at the item several times. He was only able to observe the butt end of the firearm. The rest of the gun was hidden under the armrest.
We find the firearm here was sufficiently hidden to give the officers probable cause to believe the object was evidence that appellant had committed the crime of concealing a weapon. Appellant cites several cases that he contends are controlling here, but most of these cases discuss guilt beyond a reasonable doubt, not probable cause. See Main v. Commonwealth, 20 Va. App. 370, 371, 457 S.E.2d 400, 401 (1995) (en banc); Winston v. Commonwealth, 26 Va. App. 746, 756, 497 S.E.2d 141, 146-47 (1998). One case cited by appellant that does discuss probable cause is Slayton v. Commonwealth, 41 Va. App. 101, 582 S.E.2d 448 (2003). This Court explained in that case:
In other words, even though probable cause means more than a “mere suspicion,” it is not necessary for the facts to be “sufficient to convict” the accused of the offense. Gomez [v. Atkins], 296 F.3d [253,] 262 [(4th Cir. 2002)] (quoting Taylor v. Waters, 81 F.3d 429, 434 (4th Cir. 1996)). Unlike a factfinder at trial, “reasonable law officers need not `resolve every doubt about a suspect’s guilt before probable cause is established.'” Id. (quoting Torchinsky v. Siwinski, 942 F.2d 257, 260 (4th Cir. 1991)). We reject, therefore, Slayton’s assertion that the alleged insufficiency of the evidence for a conviction necessarily precludes a finding of probable cause.
Because Deputy Spencer had probable cause to believe Slayton illegally possessed a concealed weapon, Spencer had authority both to arrest Slayton and to search him incident to that arrest.
41 Va. App. at 107-08, 582 S.E.2d at 451.
In Slayton, a couple of inches of the butt end of the gun were visible to the officer. Id. at 104, 582 S.E.2d at 449. Here, even less of the gun was visible. Officer Howe could only see the “butt end” because the armrest covered all other parts of the firearm. Therefore, comparing the facts in Slayton to the circumstances in this case, Officer Howe clearly had probable cause to believe he was observing a concealed weapon.
Appellant also argues that the firearm was not “about his person,” an element of the concealed weapon statute, Code § 18.2-308(A), and, therefore, that the officers did not have probable cause to believe he was violating this statute. Specifically, he contends that, because he had exited the Cadillac and the weapon remained in the car, the gun was not near him or actually in his possession by the time Officer Howe discovered it, confiscated the weapon, and arrested appellant. However, again, the case upon which appellant relies, Pruitt v. Commonwealth, 274 Va. 382, 384, 650 S.E.2d 684, 684 (2007), addresses sufficiency of the evidence to prove guilt, not to establish probable cause. In Pruitt, the Court considered whether the evidence proved guilt beyond a reasonable doubt, whereas here we are considering whether the evidence established probable cause for a reasonable officer to believe that appellant was committing a crime. See Slayton, 41 Va. App. at 107-08, 582 S.E.2d at 451. Thus, Pruitt is not controlling here.
Here, the officers actually observed appellant sitting alone in the Cadillac. After appellant exited the car, Officer Howe found a gun under the armrest, immediately beside where appellant had been sitting. There was no evidence that anyone else got into the car, other than Officer Howe when he retrieved the firearm, after appellant exited the Cadillac. Nothing indicated to the officers that anyone else had recently exited the car, especially as the officers saw no one else in the car when they had previously driven past the Cadillac. These circumstances were sufficient to provide a reasonable police officer with probable cause to believe that appellant had a firearm “about his person” as he was sitting in the car, in violation of Code § 18.2-308(A). Whether this evidence would also be sufficient to find appellant guilty beyond a reasonable doubt of possessing a concealed weapon is a question that is not relevant to the issue currently before us on appeal here.
We find that the trial court did not err in holding that the officers had probable cause to seize the firearm or in holding that the police had reasonable suspicion to detain appellant.
II. Questioning of Appellant
Appellant argues that he was arrested at the point when Trooper Flaherty started to handcuff him. Therefore, he contends, when Officer Howe asked him about the firearm, he should have first informed appellant of his Miranda rights. The trial court found that, because these events occurred simultaneously, the officers did not need to inform appellant of his Fifth Amendment rights before asking him the question. We disagree.
“If the police take a suspect into custody and then ask him questions without informing him of the rights enumerated [in Miranda], his responses cannot be introduced into evidence to establish his guilt.” Berkemer v. McCarty, 468 U.S. 420, 429, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). However, “police officers are not required to administer Miranda warnings to everyone whom they question,” and Miranda warnings are not required when the interviewee’s freedom has not been so restricted as to render him or her “in custody.” Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977).
* * * * * * *
Although a person temporarily detained pursuant to an “ordinary traffic stop” is not “in custody” for the purposes of Miranda, a detained motorist will be entitled to the protections set forth in Miranda if he or she “thereafter is subjected to treatment that renders him `in custody’ for practical purposes.” [Berkemer, 468 U.S.] at 440.
Whether a suspect is “in custody” under Miranda is determined by the circumstances of each case, and “the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983) (citation omitted). The determination “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323, 128 L. Ed. 2d 293, 114 S. Ct. 1526 (1994). If a reasonable person in the suspect’s position would have understood that he or she was under arrest, then the police are required to provide Miranda warnings before questioning. Harris v. Commonwealth, 27 Va. App. 554, 563-64, 500 S.E.2d 257, 261-62 (1998); see also Berkemer, 468 U.S. at 442 (“[T]he only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”). We review de novo a trial court’s determination that a suspect was in custody. See Thompson v. Keohane, 516 U.S. 99, 102 (1995) (noting, in a habeas case, that custody findings are reviewed de novo); see e.g., Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244-45 (1992) (implicitly conducting a de novo review of the trial court’s finding that Cherry was not in custody); cf. Ornelas v. United States, 517 U.S. 690, 696-99 (1996) (finding that de novo review is the appropriate appellate standard for reviewing a trial court’s determination that an objectively reasonable police officer would believe that he had probable cause or reasonable suspicion to stop a suspect). However, we review the trial court’s factual findings that underlie the legal analysis for “clear error” while considering the evidence in the light most favorable to the Commonwealth, as the party that prevailed before the trial court. Harris, 27 Va. App. at 561, 500 S.E.2d at 260.
Preliminarily to our consideration of the trial court’s legal finding, we must review the court’s factual finding that the events here were “simultaneous.” Although the trial court’s finding was somewhat vague, after reviewing the testimony, we conclude that all of these events and statements could not have happened “simultaneously.” Officer Howe’s statement telling Trooper Flaherty to handcuff appellant, and the pulling of the firearm from the car with the accompanying statement, “for this,” must have occurred prior to the handcuffing and questioning of appellant. Clearly, Officer Howe could not say “for this,” which he said as he placed the gun on the roof of the car, while at the same time asking appellant if “the weapon belong[ed] to him.” It is a physical impossibility for one person to make both statements simultaneously. According to the testimony, Officer Howe had already told Trooper Flaherty to handcuff appellant, and Officer Howe had already taken the gun out of the car and said “for this,” before he asked appellant if the gun was his. Therefore, to the extent that the trial court found all these events happened simultaneously, the court committed clear error. See id. The evidence supports only a finding that Officer Howe’s question to appellant and the beginning of Trooper Flaherty’s handcuffing of appellant occurred simultaneously.
The Commonwealth argues that the trial court did not err in its application of the law because the questioning and the handcuffing were simultaneous and, therefore, appellant was not questioned after he was in custody, but only while he was being placed into custody. Therefore, according to the Commonwealth, his Miranda rights had not attached at the time Officer Howe asked his question.
The United States Supreme Court in Oregon v. Mathiason, 429 U.S. 492, 494 (1977), explained, “Our decision in Miranda set forth rules of police procedure applicable to `custodial interrogation.’ `By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ 384 U.S. at 444.” (Emphasis added.) Therefore, the question here is not whether the officers had completed the process of arresting appellant prior to asking him incriminating questions, but rather, given the circumstances in this case, whether appellant was deprived of his freedom to act in a significant way to a degree associated with arrest, such that his Miranda rights attached, before Officer Howe asked appellant the question about the firearm.
Initially, the interaction between appellant and the officers was consensual, with the police simply talking to appellant. However, the officers’ posture abruptly changed when the firearm was discovered. Officer Howe did not direct any question initially to appellant, but instead told Trooper Flaherty, who was standing with appellant, to put appellant into handcuffs. When the trooper asked for an explanation for this sudden shift in their approach to appellant, Officer Howe pulled the firearm out of the Cadillac, put it on top of the car, and said “[F]or this.”
At this point, based on the officers’ exchange, a reasonable person would conclude that he was not free to leave, but instead was in police custody — with his freedom being curtailed to a degree associated with arrest. See Stansbury, 511 U.S. at 325 (“An officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned.”). The officers then took further action that would confirm a reasonable person’s impression that he was in custody — Trooper Flaherty began putting appellant in handcuffs. At the point when Trooper Flaherty began handcuffing appellant, he was physically holding appellant and restricting appellant’s freedom of movement.
Before the trooper could complete the handcuffing, Officer Howe asked appellant about the firearm. Therefore, when Officer Howe asked his question, Trooper Flaherty had appellant under his physical control and was restricting his ability to act and to move about. The logical conclusion that a rational person would draw at that point was that he was under arrest. See Orozco v. Texas, 394 U.S. 324, 325-26 (1969) (finding that the police were required to inform a suspect of his Miranda rights when they entered his bedroom, determined his identity, and immediately began asking him questions as he lay on his bed). Therefore, given the facts in this case, where the officers effectively made it clear to appellant that he was not free to leave and was in police custody (with his freedom curtailed to a degree associated with arrest), even before Trooper Flaherty began putting the handcuffs on him, the officers should have Mirandized appellant before asking him potentially incriminating questions.
Neither policeman did anything that would have suggested to a reasonable person that appellant was only being held temporarily or that he was not under arrest. The only explanation for the sudden decision to handcuff appellant was the discovery of a firearm. Especially given the progression of circumstances here, a reasonable person would certainly conclude that the officers had probable cause to believe a crime was committed and were in fact arresting appellant.
In short, based on the circumstances here, a reasonable person would believe that he was deprived of his freedom based on the fact that the first officer told the second officer to handcuff him, the second officer had responded with “why,” and the first officer had produced a gun and said, “for this.” Thus, appellant was deprived of his freedom and was effectively in police custody before Trooper Flaherty even put the handcuffs on him — and before Officer Howe asked appellant if the gun was his. Faced with this situation, a reasonable person in appellant’s position would conclude, prior to the locking of the handcuffs, that he was no longer free to leave, but instead was being held in custody by the police. Indeed, the progression of the encounter proves appellant was deprived of his freedom before Officer Howe asked about the firearm. Therefore, given the requirements of Miranda, we find that Officer Howe should have informed appellant of his Miranda rights before asking him if the firearm belonged to him.
The trial court did not err in denying the motion to suppress the firearm. However, the court did err when it found appellant was not entitled to Miranda warnings before Officer Howe asked him if the firearm was his. Consequently, his statement in response to the officer’s question should have been suppressed. Therefore, we overturn appellant’s conviction and remand this case for retrial, consistent with this opinion, if the Commonwealth be so inclined. See Britt v. Commonwealth, 276 Va. 569, 576, 667 S.E.2d 763, 575 (2008).
Blanks v. Commonwealth, Va: Court of Appeals 2010
Marcus Gardener Blanks (“Blanks”) was convicted in a bench trial, pursuant to a conditional plea of guilty, of two counts of taking indecent liberties with children in violation of Code § 18.2-370.1. He was sentenced to five (5) years of imprisonment for each offense, with seven (7) years suspended. On appeal, Blanks specifically claims that the trial court erred in denying the motion to suppress his statements, arguing that he made them to the police while he was in custody prior to Miranda warnings being given. For the following reasons, we disagree and affirm his convictions.
“On appeal from a trial court’s denial of a motion to suppress, we must review the evidence in the light most favorable to the Commonwealth, granting to the Commonwealth all reasonable inferences fairly deducible from it.” Sabo v. Commonwealth, 38 Va. App. 63, 69, 561 S.E.2d 761, 764 (2002) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)). This Court “review[s] de novo the trial court’s application of legal standards . . . to the particular facts of the case,” McCracken v. Commonwealth, 39 Va. App. 254, 258, 572 S.E.2d 493, 495 (2002) (citations omitted), but is “bound by the trial court’s findings of historical fact unless `plainly wrong’ or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers,” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)). The appellant has the burden of showing that the denial of his suppression motion was reversible error when considering the evidence in the light most favorable to the Commonwealth. McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 (2001) (citing Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980)).
When a question arises regarding a confession, “the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person shall be compelled in any criminal case to be a witness against himself.” Aldridge v. Commonwealth, 44 Va. App. 618, 639, 606 S.E.2d 539, 549 (2004) (quoting Missouri v. Seibert, 542 U.S. 600, 607 (2004) (quoting Bram v. United States, 168 U.S. 532, 542 (1897))) (internal quotations and emphasis omitted). If an “individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning,” he must be warned of his right to an attorney and his right to remain silent. Miranda v. Arizona, 384 U.S. 436, 478 (1966). However, “[t]he United States Supreme Court has long recognized that Miranda warnings are implicated only during a custodial interrogation.” Aldridge, 44 Va. App. at 641, 606 S.E.2d at 550 (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Therefore, “`police officers are not required to administer Miranda warnings to everyone whom they question,’ and Miranda warnings are not required when the interviewee’s freedom has not been so restricted as to render him or her `in custody.'” Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 261-62 (1998) (quoting Mathiason, 429 U.S. at 495).
Whether an individual is “in custody” for Miranda purposes is “determined based on the circumstances of each case, and the `ultimate issue is simply whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with formal arrest.'” Harris, 27 Va. App. at 564, 500 S.E.2d at 262 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). This determination `”depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'” Aldridge, 44 Va. App. at 642, 606 S.E.2d at 551 (quoting Stansbury v. California, 511 U.S. 318, 323 (1994)). “If a reasonable person in the suspect’s position would have understood that he or she was under arrest, then the police are required to provide Miranda warnings before questioning.” Harris, 27 Va. App. at 564, 500 S.E.2d at 262.
The following circumstances are considered in determining whether an individual is “in custody”:
(1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical restraint, (5) the duration and character of the interrogation, and (6) the extent to which the officers’ beliefs concerning the potential culpability of the individual being questioned were manifested to the individual.
Harris, 27 Va. App. at 565, 500 S.E.2d at 262. But, “[n]o single factor is dispositive of the issue.” Id. at 566, 500 S.E.2d at 262 (citing Wass v. Commonwealth, 5 Va. App. 27, 33, 359 S.E.2d 836, 839 (1987)).
In this case, Blanks voluntarily went to the police station. Blanks initiated the contact with Detective Younce (“Younce”), and voluntarily agreed to a time to go down to the police station for an interview. Younce did not coerce him into coming to the police station, nor did she pick him up. While Blanks’s wife led him to believe everything was going to be okay, that he would just need to answer a few questions, and that all they needed would be family counseling, this expectation was created by his wife and not by the police. A reasonable person would not believe they were in custody when they voluntarily set up the meeting time, and voluntarily drove themselves to the police station.
An interview is not automatically a custodial situation merely because it takes place at the police station. `”[T]he requirements of warnings [are not] to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'” Aldridge, 44 Va. App. at 644, 600 S.E.2d at 552 (quoting Mathiason, 429 U.S. at 495). “It is the custodial nature rather than the location of the interrogation that triggers the necessity of giving Miranda warnings.” Coleman v. Commonwealth, 226 Va. 31, 47, 307 S.E.2d 864, 872 (1983). Blanks voluntarily went to the police station, and was escorted to an interview room by Younce. Younce reminded Blanks that he came voluntarily and was free to leave and that she would be happy to show him out. The interview room was located in Younce’s division, and it contained three chairs, was about eight feet by five feet, had no windows, was carpeted, and painted red with white trim. The location of the interview does not weigh in favor of a finding that Blanks was in custody.
Turning to the number of officers present, Younce met Blanks in the lobby of the police station, and escorted him to the interview room. Younce was the only officer present in the room during the interview. Detective Sergeant Wessel (“Wessel”) was outside the interview room only to observe Younce’s interview techniques, and was not involved in the actual interview. Wessel’s only interaction with Blanks was to perform a “pat-down search” prior to allowing him to enter the restroom alone, and then he escorted him back to the interview room along with Younce where he left them. While Blanks saw other police officers in the building at the time he was escorted to the room, it is a police station that many know will contain officers. A reasonable person would not conclude that the presence of other officers in the police station turns his situation into a custody situation, nor would the person conclude that they are in custody when only one officer is conducting the interview.
No physical restraints were used from the time Blanks entered the police station to the completion of the interview, roughly sixty-five minutes later. In addition, the interview room door was not locked, and Blanks was notified of this fact. Also, the only items in the interview room were three chairs. While one of the chairs had to be moved from in front of the door when Blanks left to use the restroom, nothing in the room physically restrained him. Younce’s chair was close to Blanks so that she could have reached out and touched him, but she did not do so. Also, while Wessel conducted a pat-down search of Blanks prior to his using the restroom, he did not physically restrain Blanks once the pat down was concluded or when he escorted him back to the room. Lastly, Blanks was not handcuffed at any point in the interview. Based on these facts, a reasonable person would not objectively feel he was physically restrained.
Similarly, a reasonable person would not have concluded from the duration and character of the interview that he was not free to leave. Once the interview started, it lasted only sixty-five minutes. During that period of time Younce left Blanks alone for a few minutes and Blanks was permitted to use the restroom. So the duration of the actual interview was less than the overall sixty-five minutes. Also, Younce informed Blanks at the outset that he was free to leave and she would escort him back out. These factors do not weigh in favor of Blanks being in custody at this time.
Lastly, with regard to whether Younce manifested a belief concerning Blanks’s potential culpability,
a consideration of this factor “encompasses the degree to which it was conveyed to the suspect that he or she was the focus of a criminal investigation,” and it also “includes circumstances such as the appearance of probable cause to arrest and the extent to which the individual is confronted with evidence of guilt.”
Aldridge, 44 Va. App. at 645, 606 S.E.2d 552-53 (quoting Harris, 27 Va. App. at 566 n.2, 500 S.E.2d at 262 n.2). The United States Supreme Court noted in Stansbury,
“[a]n officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her “`freedom of action.'” Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer’s degree of suspicion will depend upon the facts and circumstances of the particular case.”
Id. at 646, 606 S.E.2d at 553 (quoting Stansbury, 511 U.S. at 324-25) (emphasis added).
Stansbury, 511 U.S. at 325 (emphasis added).
This case is similar to the federal case Thompson v. Keohane, 145 F.3d 1341, 1341 (9th Cir. 1998), in which the officers conveyed several times to the defendant that they thought he was the one who committed the crime. See Thompson v. Keohane, 516 U.S. 99, 103 (1995). In Thompson, the Ninth Circuit affirmed the trial court’s holding that Thompson was not in custody when he spoke with the officers at the police station. Thompson, 145 F.3d at 1341. He drove himself to the station house to purportedly identify some evidence, and then stayed at the headquarters for two more hours while the officers questioned him in a small interrogation room while tape recording the interview. Thompson, 516 U.S. at 103. “Although [the officers] constantly assured Thompson he was free to leave, they also told him repeatedly that they knew he had killed his former wife.” Id. Thompson eventually confessed to the crime. Id.
Here, just as in Thompson, the record shows that Younce began the interview by informing Blanks that she had interviewed his stepdaughter and that she believed the stepdaughter to be truthful and her version of the events to be credible. She also told Blanks he was being dishonest when he said that he did not touch himself. While the tenor of the interview was at times accusatory, “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” Mathiason, 429 U.S. at 495. Although Younce conveyed by word to Blanks her belief regarding the facts of the situation, and this weighs in favor of a reasonable person concluding that their freedom was restricted, it is one among many factors to consider whether a reasonable person in Blanks’s position would believe his freedom of movement was restricted.
Based on the totality of the evidence viewed in the light favorable to the Commonwealth, we hold that Blanks was not deprived of his freedom of movement such that he was in custody at the time of his interview. Thus, the detectives were not required to advise Blanks of his Miranda rights prior to his arrest because he was not in custody. We, therefore, hold that the trial court did not err in denying the motion to suppress.
Anderson v. Commonwealth, Va: Court of Appeals 2008
Payton Randolph Anderson, III appeals his convictions of possession of marijuana with intent to distribute in violation of Code § 18.2-248.1(a)(2) and possession of a concealed firearm in violation of Code § 18.2-308. He asserts that the trial court erred by denying his motion to suppress statements he made to police while he was seized during a traffic stop. For the reasons that follow, we disagree with Anderson and affirm his convictions.
Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). “In so doing, we must discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
Chesterfield County Police Officer T.P. Kline was on patrol at 10:30 p.m., on January 1, 2006, and initiated a traffic stop of a car being driven by Anderson. Anderson had two passengers riding with him: a front seat passenger, Underwood, and a left backseat passenger, Harris.
Officer Kline requested Anderson’s driver’s license and registration. When Anderson opened the center console to obtain the requested information, Officer Kline saw “a baggy [sic] containing a green leaf-like substance, which [he] believed to be marijuana . . . .” Officer Kline also recalled “the vehicle had a strong odor of marijuana.” He asked Anderson to step out of his car and remain by the door while he checked his license and registration. After determining that both were valid, Officer Kline returned to Anderson, who still remained outside of his vehicle, and asked him if there was any marijuana in the vehicle. Anderson replied, “yes, there [is] a little.”
Officer Kline then handcuffed Anderson but allowed him to have his hands in front of him. Officer Kline testified that he handcuffed Anderson because he was “by himself” and Anderson was a “large person.” When handcuffing Anderson, Officer Kline informed him that he was not under arrest and explained that he was being handcuffed for the officer’s “safety.” Officer Kline then directed Anderson to stand by the rear passenger side of the officer’s car, while he spoke to the two passengers, who remained in Anderson’s car. Anderson was not free to leave and was directed to remain in Officer Kline’s view until he returned.
Officer Kline then asked Underwood to step out of Anderson’s vehicle to answer some questions and to submit to a search for marijuana. During his search of Underwood, Officer Kline discovered marijuana and a firearm. He arrested Underwood, handcuffed him with his hands behind his back, and directed him to stand in front of his car. An officer, who had recently arrived at the scene, was asked to stand with Underwood while Officer Kline searched Harris, the backseat passenger.
When Officer Kline removed Harris and searched him, he discovered marijuana. Officer Kline arrested Harris, handcuffed him with his hands behind his back, and directed him to stand in front of his car, beside Underwood. At this point, Officer Kline returned to the driver’s side of Anderson’s car and began to search the front part of it, including the console. There, he discovered a plastic bag inside the closed console containing what appeared to be marijuana and a digital scale underneath the plastic bag. He placed the items on the hood of his car and continued his search of the car. He then searched the area directly behind the driver’s seat on the floorboard and discovered “fifteen individually wrapped baggies” of marijuana placed inside a larger clear plastic bag.
After discovering the marijuana and the scales in the console, Officer Kline showed them to Anderson and asked him if they were his. He admitted that they were. Then, Officer Kline returned with the “fifteen individually wrapped baggies” of marijuana and showed them to Anderson, and he admitted that the drugs belonged to him. At this point, Officer Kline arrested Anderson and simultaneously read Miranda rights to the three men.
Prior to trial, Anderson filed a motion to suppress any statements he made to Officer Kline during the course of the traffic stop, alleging the officer failed to advise him of his Miranda rights. The trial court held a hearing and denied the motion. Thereafter, Anderson immediately proceeded to arraignment and a bench trial where he was convicted of possession of marijuana with intent to distribute and possession of a concealed firearm.
This appeal ensued.
On appeal of the denial of a motion to suppress, it is appellant’s burden to show that the denial constituted reversible error when the evidence is considered in the light most favorable to the Commonwealth. See McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). “The issue whether a suspect is `in custody,’ and therefore entitled to Miranda warnings, presents a mixed question of law and fact . . . .” Thompson v. Keohane, 516 U.S. 99, 102 (1995). “We are bound by the trial court’s findings of historical fact unless `plainly wrong’ or without evidence to support them,” McGee, 25 Va. App. at 198, 487 S.E.2d at 261, but we review de novo the trial court’s application of defined legal standards to the particular facts of the case. See Ornelas v. United States, 517 U.S. 690, 699 (1996).
Anderson contends that the trial court erred in denying the motion to suppress his statement about the marijuana. He argues that the statement should have been suppressed because law enforcement failed to give him Miranda warnings before asking him questions concerning whether the marijuana belonged to him. Conversely, the Commonwealth contends that law enforcement was not required to advise Anderson of his Miranda rights because Anderson was detained incident to a traffic stop and was not in custody for purposes of Miranda when he answered questions. See Berkemer v. McCarty, 468 U.S. 420 (1984). We agree with the Commonwealth and affirm.
Even though “Miranda warnings are required whenever a suspect is subject to `custodial interrogation,'” not every detention “constitutes a custodial interrogation for purposes of Miranda.” Cherry v. Commonwealth, 14 Va. App. 135, 140, 415 S.E.2d 242, 244 (1992) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)); see also Harris v. Commonwealth, 27 Va. App. 554, 564, 500 S.E.2d 257, 261-62 (1998) (“‘[P]olice officers are not required to administer Miranda warnings to everyone whom they question,’ and Miranda warnings are not required when the interviewee’s freedom has not been so restricted as to render him or her `in custody.'” (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977))).
“The `custody’ that implicates the Miranda rule is conceptually distinct from a seizure implicating the Fourth Amendment. . . . Even though a routine traffic stop does not amount to a custodial detention of the motorist, it does constitute a `seizure’ within the meaning of the Fourth Amendment.” United States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998). Typically, a traffic stop is more analogous to a `”Terry stop’ than to a formal arrest.” Berkemer, 468 U.S. at 439. A suspect is “‘in custody’ for purposes of Miranda [only] if [he] has been arrested or if his freedom of action has been curtailed to a degree associated with arrest.” Sullivan, 138 F.3d at 130.
During Terry stops, law enforcement officers are permitted to use methods of restraint that are reasonable under the circumstances. See Thomas v. Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993), aff’d en banc, 18 Va. App. 454, 444 S.E.2d 275 (1994). Accordingly, “drawing weapons, handcuffing a suspect, placing a suspect in a patrol car for questioning, or using or threatening to use force does not necessarily elevate a lawful stop into a custodial arrest for Miranda purposes.” United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 1995) (citations omitted); cf. Dixon v. Commonwealth, 270 Va. 34, 41, 613 S.E.2d 398, 401 (2005) (holding, although the existence of being restrained in handcuffs or being locked in a police patrol car, without the other, “may not result in a curtailment of freedom ordinarily associated with a formal arrest,” when both factors are present, it “compels the conclusion that a reasonable person subjected to both restraints would conclude that he was in police custody”).
In determining whether a suspect is “in custody” under Miranda, courts examine the circumstances of each case, and “the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement’ of the degree associated with formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (citation omitted). The determination “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994). Therefore, if a reasonable person in the suspect’s position would have understood that he was under arrest, then the police are required to provide Miranda warnings before questioning. See Cherry, 14 Va. App. at 140, 415 S.E.2d at 244-45.
In determining whether a suspect is in custody when questioned, “the totality of circumstances must be considered.” Wass v. Commonwealth, 5 Va. App. 27, 32, 359 S.E.2d 836, 839 (1987). Among the circumstances to be considered when determining whether a suspect was in custody are (1) the manner in which the individual is summoned by the police, (2) the familiarity or neutrality of the surroundings, (3) the number of officers present, (4) the degree of physical restraint, (5) the duration and character of the interrogation, and (6) the extent to which the officers’ beliefs concerning the potential culpability of the individual being questioned were manifested to the individual. See Harris, 27 Va. App. at 565, 500 S.E.2d at 262 (citing Bosworth v. Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d 756, 759 (1989)). No single factor, by itself, however, is dispositive of the issue of whether a suspect was in custody for purposes of Miranda. See Wass, 5 Va. App. at 33, 359 S.E.2d at 839.
In the case before us, the detention lasted just long enough for Officer Kline to investigate and search the car and its occupants after smelling marijuana and viewing what appeared to be marijuana in a baggie in the open console. During the course of the investigation, Officer Kline explained to Anderson that he was not under arrest and that he was being handcuffed for Officer Kline’s safety. Furthermore, Officer Kline did not place Anderson inside his police car but allowed him to stand outside next to the car. Cf. Dixon, 270 Va. at 41, 613 S.E.2d at 401 (determining that a suspect handcuffed and locked in a police car was in custody for Miranda purposes; however, explaining that “the presence of either of th[o]se factors, in the absence of the other, may not result in a curtailment of freedom ordinarily associated with a formal arrest”).
Anderson concedes that the use of handcuffs alone was not sufficient to trigger the necessity for providing Miranda warnings. Nonetheless, he contends that when combined, the two factors of (1) being handcuffed; and (2) viewing the arrests of Underwood and Harris, rendered him in custody for purposes of Miranda.
At oral argument, Anderson conceded, however, that the record is devoid of any proof that Anderson had actual knowledge that Underwood and Harris were actually arrested or treated differently than he was when they were handcuffed in the back, as opposed to the front. Instead, Anderson submits that we should “infer” from the record that a reasonable person would know the difference under these circumstances. We disagree. Moreover, based upon the record before us, we find that no such evidence exists to establish factor number two submitted by Anderson.
Anderson was neither formally arrested nor deprived of his freedom of movement to the degree associated with a formal arrest until he admitted ownership of the individual marijuana baggies and the scale. Thus, Officer Kline was not required to advise him of his Miranda rights because he was not yet in custody. Dixon, 270 Va. at 41, 613 S.E.2d at 401.
Accordingly, the trial court did not err in denying Anderson’s motion to suppress his statements.
For these reasons, we affirm Anderson’s convictions.
Hasan v. Com., 667 SE 2d 568 – Va: Supreme Court 2008
In this appeal, we consider whether evidence of a defendant’s response to a police officer’s question regarding the presence of a weapon in a vehicle should have been suppressed in the absence of Miranda warnings. For the reasons stated below, we will reverse the judgment of the Court of Appeals of Virginia.
I. Facts and Proceedings Below
On May 30, 2004, Newport News Police officers received a radio transmission for a “be-on-the-lookout” (“BOL”) concerning an 570*570 armed robbery that had occurred in the city. Officers Sutton and Grace of the Newport News Police Department received this BOL, which notified officers to look for “a black, square body, older model Chevy Impala [with] a window shattered but … still intact on the passenger side of the vehicle.” The vehicle was described as having a “[p]artial tag … of JHM or JMH [and] was being operated by a black male driver with another black male passenger.”
Not long after receiving the BOL, Officer Sutton observed a black, older model Chevy Impala with the front passenger window shattered but still intact, with the first letters on the license plate, “JMH.” Officers Sutton and Grace followed the vehicle and called for assistance with the ensuing traffic stop. After stopping the suspected vehicle, the officers used a public announcement system from one of the police cars to initially communicate with the driver and passenger.
At the beginning of this encounter, there were three or four police officers present and as many as two to four additional officers arrived during the traffic stop, for a total of six to eight officers. There was also a K-9 unit at the scene, and the various officers present had both handguns and shotguns drawn.
The defendant, Qaadir Tariq Hasan (“Hasan”), was the driver and the first occupant removed from the vehicle. Officer Sutton “patted him down” for weapons and then placed him in handcuffs. At least five other officers were standing around Officer Sutton and Hasan in a “cone” formation. None of the officers informed Hasan of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at any time prior to the question and answer that are the major focus of this appeal.
Officer Sutton asked Hasan if there were any weapons in the vehicle, and Hasan responded that there was a handgun under the driver’s seat. The other occupant of the vehicle was still in the vehicle, and Officer Sutton testified that he asked whether there were any weapons in the car for “officer safety” because “[i]f there’s another occupant in that vehicle and we are stopping that vehicle for a violent felony, I’m going to ask that question regardless.”
Officer Sutton notified other police officers present that there was a weapon in the vehicle and, once the passenger was removed from the vehicle, Officer Grace found the weapon under the driver’s seat where Hasan indicated it would be located. Subsequent investigation revealed that Hasan and the passenger were not involved in the robbery.
Hasan was indicted for carrying a concealed weapon, second or subsequent offense, and possession of a firearm by a convicted felon. He filed a motion to suppress “any and all evidence as well as the fruits derived therefrom, resulting from the statements taken from the defendant at the time of the defendant’s arrest,” arguing that the officers should have read him his rights under Miranda before posing the question about weapons. The trial court denied the motion to suppress.
Hasan entered a conditional plea of guilty, reserving the right to challenge on appeal the trial court’s denial of his motion to suppress and to withdraw his plea if successful. The Commonwealth consented to this conditional plea and the trial court approved it, as required by Code § 19.2-254. Upon entering this conditional plea, Hasan was found guilty of both offenses. He was sentenced to two years’ incarceration with both years suspended for carrying a concealed weapon, and five years with three years suspended for possession of a firearm by a convicted felon.
Hasan appealed to the Court of Appeals of Virginia which affirmed the judgment of the trial court in an unpublished opinion. The Court of Appeals held that[t]he only issue on appeal is whether appellant was “in custody” for practical purposes at the time he was asked about “weapons in the vehicle.” … Although appellant was told to exit his car under conditions of a “high-risk” traffic stop with between three and eight police officers present, and although he was patted down and handcuffed, appellant was not taken to a patrol car prior to questioning…. [W]e cannot say that a reasonable person in appellant’s position would understand that he was “in custody” at the moment he was 571*571 questioned. The trial court therefore did not err in denying appellant’s motion to suppress.
Hasan v. Commonwealth, Record No. 2435-06-1, slip op. at 2-4, 2007 WL 4524949 (Dec. 27, 2007). Hasan appeals to this Court upon one assignment of error: “The Court of Appeals erred in affirming the trial court’s denial of Hasan’s motion to suppress the statements he made to police in the absence of a Miranda warning.”
A. Standard of Review
When reviewing a trial court’s denial of a defendant’s motion to suppress evidence,
we consider the evidence “in the light most favorable to the Commonwealth,” McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001), and “accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004)…. The defendant bears the burden of establishing that the denial of his suppression motion was reversible error.
Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008).
B. The Court of Appeals Erred in Affirming the Trial Court’s Holding that Hasan Was Not In Custody
Hasan argues that his statement to police about the presence of a handgun in the vehicle should have been suppressed in the absence of Miranda warnings. The United States Supreme Court held in Miranda that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination” guaranteed by the Fifth Amendment. 384 U.S. at 444, 86 S.Ct. 1602. “The safeguards required by Miranda must be afforded to a suspect as soon as the police have restricted his freedom of action to a `degree associated with formal arrest.'” Dixon v. Commonwealth, 270 Va. 34, 39, 613 S.E.2d 398, 400 (2005) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).
The relevant inquiry to determine if a suspect is in custody is “how a reasonable person in the suspect’s situation would have understood his circumstances.” Id. at 40, 613 S.E.2d at 401. As the United States Supreme Court has noted, “the circumstances of each case must certainly influence a determination of whether a suspect is `in custody’ for purposes of receiving Miranda protection.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). Among the circumstances courts consider in determining whether a suspect is in custody are whether police were able to physically seize the suspect, whether the suspect was physically restrained, whether firearms were drawn, whether there was physical contact between police and the suspect, whether the suspect was confined in a police car, whether police told the suspect he or she was free to leave, whether police engaged in other incidents of formal arrest such as booking, whether friends or relatives of the suspect were present, and whether more than one officer was present. 2 Wayne R. LaFave et al., Criminal Procedure § 6.6(f) (3d ed.2007). Of equal importance are the officers’ demeanor during the encounter, the length of the questioning, and the nature of the questions asked, id., the location of the encounter, id. at § 6.6(d), and whether the subject was uniquely susceptible to intimidation, id. at § 6.6(c). However, this list is not exhaustive, and other circumstances might bear on the question whether police have curtailed a particular suspect’s freedom to a “degree associated with a formal arrest.” Beheler, 463 U.S. at 1125, 103 S.Ct. 3517.
The Court of Appeals held that Hasan was not “in custody” and therefore Miranda warnings were not necessary. We disagree. Prior to the questioning at issue here, the officers had stopped Hasan, and using a public announcement system, ordered him to drop the car keys and get out of the car. He was immediately surrounded by officers with drawn handguns and shotguns trained upon him. The nature of the detention 572*572 was not similar to an ordinary traffic stop. Hasan was directed to a location between two police cars, frisked for weapons, and handcuffed. The circumstances under which Hasan was questioned, particularly the number of officers present, the coercive character of the encounter, and the degree to which Hasan was restrained suggest that a reasonable person in Hasan’s place would have considered himself to be in police custody. Dixon, 270 Va. at 39-40, 613 S.E.2d at 400-01.
The Court of Appeals’ determination that Hasan was not in custody relied heavily on the fact that Hasan was not placed in a patrol car before being questioned by police. In Dixon, we noted that “the presence of either [handcuffing the defendant or placing him in a locked police car], in the absence of the other, may not result in a curtailment of freedom ordinarily associated with a formal arrest.” 270 Va. at 41, 613 S.E.2d at 401.
However, several factors not present in Dixon distinguish this case. For example, the defendant in Dixon did not face drawn weapons or a readily available K-9 unit, and at the time of the custodial interrogation, only one trooper was interacting with the defendant. See id. at 37-38, 613 S.E.2d at 399-400. In contrast, Hasan was confronted during questioning with both drawn guns and a K-9 unit close by, and was surrounded by a “cone” consisting of multiple officers.
Accordingly, we hold that a reasonable person in Hasan’s position “would have understood that his freedom was being restricted to a degree associated with a formal arrest.” Dixon, 270 Va. at 40, 613 S.E.2d at 401. Because Hasan was in custody when he was questioned but had not been given Miranda warnings, the Court of Appeals’ affirmance of the trial court’s denial of Hasan’s motion to suppress was erroneous.
Finally, the Commonwealth argues that a reversal of Hasan’s conviction would be improper because evidence of the weapon in the car would have been admissible under the doctrine of “inevitable discovery,” or because Officer Sutton’s question was justified by the “public safety” exception to the requirements of Miranda. These arguments, which are in the nature of a harmless error analysis, are inapplicable to this case. Even if the Commonwealth is correct about the inevitable discovery of the weapon or the application of the public safety exception, Hasan entered a conditional guilty plea pursuant to Code § 19.2-254, which provides in part that “[i]f the defendant prevails on appeal, he shall be allowed to withdraw his plea.” Hasan has prevailed on appeal regarding suppression of the statement at issue in this case. He is entitled by statute to withdraw his plea. Hasan must be given the opportunity to reassess the admissible evidence that may be used against him and, if the Commonwealth wishes to continue its prosecution, demand a trial if he so desires.
For the reasons stated, we hold that the Court of Appeals erred in affirming Hasan’s convictions. Accordingly, we will reverse the judgment of the Court of Appeals and remand with instructions that this matter be remanded to the trial court for a new trial, if the Commonwealth so elects, in accordance with the principles expressed in this opinion.
Reversed and remanded.
Wass v. Com., 359 SE 2d 836 – Va: Court of Appeals 1987
Appellant, Gary Wayne Wass, was convicted in a bench trial of cocaine and marijuana possession and sentenced to serve concurrent terms of five years and thirty days, respectively. On appeal, Wass challenges the admissibility of statements he made to police officers during the search of his home and before being informed of his constitutional rights. He asserts that the statements were the result of custodial interrogation and should have been suppressed as violative of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Because we find that Wass was “in custody” at the time he was questioned, the trial court erred by admitting the statements. We reverse the convictions and remand for such further proceedings as the Commonwealth deems appropriate.
In Miranda, the Supreme Court announced the now well established principle that statements stemming from custodial interrogation are inadmissible unless certain procedural safeguards effective to secure the privilege against self-incrimination are provided. Custodial interrogation is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, see May v. Commonwealth, 3 Va.App. 348, 352, 349 S.E.2d 428, 430 (1986). Viewing the total circumstances in this case in the light most favorable to the Commonwealth, Crumble v. Commonwealth, 2 Va.App. 231, 233, 343 S.E.2d 359, 361 (1986), we hold that the evidence was insufficient to support the conclusion necessarily reached by the trial court that Wass was not in custody for purposes of Miranda when questioned.
On May 10, 1985, officers from the Lynchburg Police Department raided a 838*838 house in Lynchburg to execute a search warrant. Gary Wass and his sister-in-law, Vicky Wass, were at the house when the raid began. Approximately six officers first arrived on the scene by dump truck. The dump truck was followed by another truck containing five or six additional officers. Within three to four minutes after the two trucks appeared, four more officers arrived by helicopter. When Wass approached the officers in the dump truck, they informed him of the search warrant for his home. Wass testified that from the moment the first officers emerged from the dump truck, he did not feel free to go anywhere except with them.
The police officers knew before the search that two large Doberman Pinscher guard dogs and loaded firearms were kept at the house. When they arrived, both dogs were there and one tried to attack an officer. Wass was told to control the dogs or they would be killed. One dog was contained before the search but the other fled. Commander Reynolds who arrived in the helicopter was informed that the house had been secured but that one dog was loose. Reynolds directed the officers to set up an “exterior perimeter” around the house to prevent the second dog from returning and injuring someone. Reynolds also stationed an officer at the front door and another just inside the front door “in the event that the animal were to try to come and go back into the house.” All officers stationed at the door and in the perimeter defense were armed, some with shotguns. The officers remained at their stationed positions throughout the search even though the second dog was contained some time during the search.
Reynolds approached Wass and asked “did he understand he was in fact not under arrest” and he “was free to go at any time, because he was not under arrest.” Wass stated that he understood. Reynolds then told Wass that when the police conducted a search they “liked for the property owner to be present if they wished to be present so that they can see what we do; if we open anything, they can see, if we remove anything they can see it; if anything is destroyed or damaged in any way, they can observe whether or not the police actually were the ones who did the damage if in fact it was alleged.”
Once inside the house, Wass was asked to sit in a chair while the downstairs was searched. Both contraband and drug paraphernalia were found downstairs, and Wass told the police that the downstairs bedroom was occupied by his brother and sister-in-law. Reynolds asked Wass what was upstairs. Wass replied that the upstairs bedroom was his, which he occupied alone.
Upstairs, the police found a thermos containing a bag of white powder later analyzed as cocaine. Reynolds asked Wass if the cocaine was his, and Wass admitted that it belonged to him. Also found in Wass’s bedroom was a “photo cube” containing three bags of marijuana and a “cake tin” containing marijuana and drug paraphernalia. Wass was specifically asked about the contents of the “cake tin,” and he admitted the items were his.
After the police completed the search, Wass was arrested. At no time prior to or after arrest was Wass given the Miranda warnings. After he was arrested, Wass was not subjected to interrogation and made no further statements.
The critical issue is whether Wass was in custody or otherwise deprived of his freedom of action in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; May, 3 Va.App. at 352, 349 S.E.2d at 430. Since the Supreme Court first decided Miranda in 1966, the definition of “custodial interrogation” has evolved through a long line of cases.
Although the defendants in Miranda and its companion cases were questioned at police headquarters, the Supreme Court soon made it clear that an accused could be “in 839*839 custody” and thus entitled to Miranda safeguards in locations other than police headquarters. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). Circumstances which deprive a person of his freedom to leave or freedom of action render him in custody for purposes of Miranda. Id. at 327, 89 S.Ct. at 1097.
Questioning in a “coercive environment” alone is insufficient to trigger the need for Miranda warnings. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). In Mathiason, although the accused was questioned in the coercive environment of a police station, he came there voluntarily and at the close of the interview did, in fact, leave the station without hindrance. The Court recognized that any interview with a police officer may have coercive aspects but that alone is insufficient to render one in custody. The Court refused to require police officers to administer Miranda warnings to everyone whom they question; there must first be a restriction on the person’s freedom before Miranda applies.
The totality of circumstances must be considered in determining whether the suspect is in custody when questioned, but the “ultimate inquiry is simply `whether there is a formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). Clearly not all questioning of suspects who have been detained by the police constitutes custodial interrogation for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984); Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. It is only when a suspect’s freedom of movement is curtailed to a degree associated with formal arrest that the suspect is entitled to the full protection of Miranda. In making that determination, the situation must be viewed from the vantage point of “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151. Thus, we must evaluate the total situation and circumstances and determine how a reasonable man in Wass’s position would have understood his situation.
To determine whether a restraint is “custodial” for Miranda purposes, “a host of factors must be considered.” United States v. Streifel, 781 F.2d 953, 961 (1st Cir.1986). Among the factors that must be considered are whether a suspect is questioned in familiar or neutral surroundings, the number of police officers present, the degree of physical restraint, and the duration and character of the interrogation. Id. at 961, n. 13 (citing 1 W. LaFave & J. Israel, Criminal Procedure § 6.6 (1984)). Whether or when probable cause to arrest exists and when the suspect becomes the focus of the investigation are relevant factors to consider. Alberti v. Estelle, 524 F.2d 1265, 1267 (5th Cir.1975), cert. denied, 426 U.S. 954, 96 S.Ct. 3181, 49 L.Ed.2d 1193 (1976). “[T]he language used by the officer to summon the individual, the extent to which he or she is confronted with evidence of guilt, the physical surroundings of the interrogation, the duration of the detention and the degree of pressure applied to detain the individual” may be significant factors as well. United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.1982) (quoting United States v. Booth, 669 F.2d 1231, 1235 (9th Cir.1982).
However, no single factor alone may necessarily establish custody for Miranda purposes, and not all factors may be relevant in a given case. The fact that the investigation had become accusatory and focused upon a suspect is not necessarily determinative of custody, Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d 135, 144 (1978), and probable cause for arrest, standing alone, does not trigger the right to receive Miranda warnings. United States v. Woods, 720 F.2d 1022, 1031 (9th Cir.1983). The list of relevant circumstances is not exhaustive. The circumstances of each case must be considered from the viewpoint of a reasonable person in the suspect’s situation.
In the present case Wass was interrogated at his home, presumptively a 840*840 non-coercive setting. But even in the home, police domination of the scene may produce a coercive environment and an abridgement of freedom, and Miranda warnings may be required before questioning. See Orozco 394 U.S. at 326-27, 89 S.Ct. at 1097; Coleman v. Commonwealth, 226 Va. 31, 47, 307 S.E.2d 864, 872 (1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145 (1984).
The police told Wass that he was not under arrest and was free to leave but they also told him that they liked the resident to be present when they conducted a search. “Though informing a suspect that he is not under arrest is one factor frequently considered to show lack of custody, it is not a talismanic factor.” Davis v. Allsbrooks, 778 F.2d 168, 171-72 (4th Cir.1985) (citations omitted). In Davis the court held that the failure to inform a suspect that he was not in custody did not necessarily mean that he was in custody. Similarly, we hold that informing a suspect that he is not in custody and is free to leave does not necessarily mean that he is not in custody. Other circumstances may dictate a finding that custody exists.
Wass was confronted by at least twelve officers, all armed, some of whom were carrying shotguns, arriving in two trucks and a helicopter. The trucks were parked at the driveway gate, and some of the officers surrounded the house. Wass was ordered to secure his dogs. One was confined in a car, and an officer threatened to kill the other if Wass could not control him. Commander Reynolds directed his officers to form an “exterior perimeter” around the house. Two more officers were stationed at the door of the house, and while all of these steps were taken to “prevent the second dog … from coming back and possibly injuring one of the officers,” the record indicates that the officers stayed in position after the second dog had been secured. The record portrays a situation in which the police officers, through an impressive display of force and manpower, seized control of Wass’s private residence and secured the premises in a manner suggestive of a military maneuver. In our view, the situation is susceptible of but one interpretation: a reasonable man confronted with this armed display of manpower at his house, even though earlier told he was not under arrest and was free to leave, could only conclude that he was in fact not free to leave and was expected to cooperate. The atmosphere was exactly the type of police dominated environment described in Miranda.
We do not suggest that when police are conducting a raid or searching premises where drugs may be found, or entering an unknown situation, that protective measures should not be employed for the safety and security of the officers. However, such protective measures may also give rise to a custodial situation for Miranda purposes. If security measures produce a coercive environment and restrict a suspect’s freedom of movement to the degree associated with a formal arrest, the suspect is entitled to the procedural safeguards afforded by Miranda.
In the present case the number of armed officers, their manner of arrival, the methods used to secure the house, and the threat to kill Wass’s dog, all contribute to a finding that a reasonable man in Wass’s position would have felt he was not free to leave the premises despite advice to the contrary. After the officers arrived and secured the house, Wass was taken inside and asked to sit in a chair while a search was conducted of the downstairs area. Drugs and paraphernalia were found at that time. The search moved upstairs, an area Wass admitted was occupied solely by him. More drugs and paraphernalia were found in Wass’s presence. At this point, when the police asked Wass about ownership of the drugs found in his bedroom, they contend, and the trial court accepted, that Wass was still free to leave. Regardless whether the officers would have allowed Wass to leave, no reasonable person would have felt free to leave. We therefore find that Wass was in custody at the time he admitted ownership of the drugs, and the statement was elicited in violation of Miranda and should have been suppressed. Because we cannot say that admission of Wass’s statement was harmless 841*841 beyond a reasonable doubt, see Chapman v. California, 386 U.S. 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we reverse and remand for a new trial with directions that Wass’s statements be excluded.
Reversed and Remanded. The term “custodial interrogation” has presented the need to define interrogation as well as custody, but for the purposes of this opinion we need only address the issue of what constitutes custody for purposes of Miranda. The issue of whether Wass was subjected to interrogation is not in dispute.