                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED

              Present: Judges Frank, Kelsey and Alston
              Argued by teleconference

              KENNETH GATLING
                                                                              MEMORANDUM OPINION* BY
              v.   Record No. 0437-13-1                                        JUDGE D. ARTHUR KELSEY
                                                                                    MARCH 4, 2014
              COMMONWEALTH OF VIRGINIA

                              FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                              James C. Hawks, Judge

                                   (Kurt A. Gilchrist, on brief), for appellant. Appellant
                                   submitting on brief.

                                   Craig W. Stallard, Assistant Attorney General (Kenneth T.
                                   Cuccinelli, II, Attorney General, on brief), for appellee.


                     In the trial court, Kenneth Gatling entered a conditional plea of guilty to possessing

              heroin with the intent to distribute, in violation of Code § 18.2-248. On appeal, he contends the

              court erred by not suppressing his confessions. Finding no such error, we affirm.

                                                                I.

                     When reviewing a denial of a suppression motion, we review the evidence “in the light

              most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn

              v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (internal

              quotation marks omitted), aff’d, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us

              to “give due weight to inferences drawn from those facts by resident judges and local law

              enforcement officers.” Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008)

              (internal quotation marks omitted).



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       In this case, after a detective had conducted undercover surveillance of Gatling for three

or four days in September 2012, he came to suspect Gatling of selling drugs from the front porch

of his sister’s home. Wanting to verify Gatling’s identity, three plain-clothes police detectives

walked up to him as he sat on the front porch of his sister’s home on September 11, 2012. They

were displaying their badges and identified themselves as police detectives. They asked Gatling

if he had an identification card on him.

       Without being requested to do so, Gatling invited the detectives into his sister’s home and

told them that they could retrieve his identification card from his wallet, which was in the back

pocket of a pair of jeans he identified as his own. After verifying Gatling’s identity, one of the

detectives stated that he believed Gatling was selling heroin from his sister’s home. Without

equivocation, Gatling replied, “yeah, you are right.” App. at 8.

       The detectives then requested and received permission from Gatling’s sister to search her

home. During the search, they discovered under a couch pillow a yellow, plastic Easter egg

containing forty-nine capsules of heroin. The detectives then arrested Gatling and twice advised

him of his Miranda rights. Waiving his right to remain silent, Gatling volunteered a full

confession, describing how many heroin capsules he typically sold and for how much.

       At no time prior to Gatling’s arrest did any of the detectives state that he was not free to

leave. Nor did they demand to enter the home or, for that matter, suggest that they would not

leave if asked. Prior to Gatling’s arrest, the detectives did not restrain Gatling, physically touch

him, or issue any commands.1 Gatling appeared to be “very cooperative” and “very apologetic”

throughout his encounter with the detectives. Id. at 22.



       1
         At some point while the detectives were in the home, one of them unholstered his
firearm because he heard a suspicious noise coming from one of the bathrooms. It turned out to
be two children who posed no threat. Though unsure of the exact timing, the detective thought
this event occurred after he had told Gatling that he suspected him of selling drugs. Id. at 22-23.

                                                -2-
       In the trial court, Gatling argued that the detectives questioned him about their suspicion

of heroin distribution prior to providing Miranda warnings and, thus, his initial confession should

have been suppressed. The post-Miranda statement, Gatling added, should have been suppressed

as “fruit of the poisonous tree.” Appellant’s Br. at 5. The trial court disagreed and denied

Gatling’s motion to suppress. The court thereafter accepted his conditional guilty plea and

convicted him of possessing heroin with the intent to distribute, in violation of Code § 18.2-248.

                                                 II.

       On appeal, Gatling contends his pre-Miranda confession occurred after he “was seized by

detectives.” Appellant’s Br. at 4. The seizure occurred, he argues, at the moment during his

consensual conversation with the detectives when one said that he was suspected of selling

drugs, “a statement intended to illicit [sic] a response.” Id. Citing McGee v. Commonwealth, 25

Va. App. 193, 487 S.E.2d 259 (1997), Gatling argues that a Fourth Amendment seizure takes

place whenever police “confront a person and inform him that he is a suspect in a crime.”

Appellant’s Br. at 5. Because he was seized at that moment, he concludes, the detectives were

not permitted to continue talking with him without first reading his Miranda rights.

       We are skeptical of Gatling’s first premise — that, under McGee, the detective’s mere

mention that Gatling was suspected of criminality constituted a Fourth Amendment seizure.2 We


No evidence suggested, nor did Gatling contend, that the detective ever pointed his firearm at
him or waved it in his presence.
       2
          McGee stated that a specifically directed accusation of criminality is “significant among
the ‘totality of the circumstances’ to determine whether a reasonable person would feel free to
leave.” McGee, 25 Va. App. at 200, 487 S.E.2d at 262 (footnote omitted). McGee did not say it
was legally dispositive, thus rendering irrelevant all of the other facts embedded in the totality of
the circumstances. See Davis v. Commonwealth, 37 Va. App. 421, 431-32, 559 S.E.2d 374, 379
(2002) (explaining that “an allegation of criminal wrongdoing does not automatically negate a
finding of a consensual encounter”); Barkley v. Commonwealth, 39 Va. App. 682, 692, 576
S.E.2d 234, 242 (2003) (clarifying further that, even under McGee, “merely informing” a suspect
that officers are “conducting a general investigation in response to a report of drug dealing” does
not implicate a seizure (internal quotation marks omitted)).

                                                -3-
need not decide the issue, however, because even if the assertion were true it would not support

the suppression remedy Gatling seeks.

       Under “Miranda case law, ‘custody’ is a term of art that specifies circumstances that are

thought generally to present a serious danger of coercion.” Howes v. Fields, 132 S. Ct. 1181,

1189 (2012). “Miranda does not apply outside the context of the inherently coercive custodial

interrogations for which it was designed.” Roberts v. United States, 445 U.S. 552, 560 (1980)).

“That degree of coercive danger does not exist ‘simply because the questioning takes place in the

station house, or because the questioned person is one whom the police suspect’ as the

perpetrator of the crime.” Tizon v. Commonwealth, 60 Va. App. 1, 18-19, 723 S.E.2d 260, 268

(2012) (quoting Howes, 132 S. Ct. at 1188 (summarizing in parenthetical the holding of Oregon

v. Mathiason, 429 U.S. 492, 494 (1977) (per curiam))). All the more, it is not dispositive

merely that the person questioned is not free to leave:

            Determining whether an individual’s freedom of movement was
            curtailed, however, is simply the first step in the analysis, not the last.
            Not all restraints on freedom of movement amount to custody for
            purposes of Miranda. We have decline[d] to accord talismanic power to
            the freedom-of-movement inquiry, and have instead asked the additional
            question whether the relevant environment presents the same inherently
            coercive pressures as the type of station house questioning at issue in
            Miranda. Our cases make clear . . . that the freedom-of-movement test
            identifies only a necessary and not a sufficient condition for Miranda
            custody.

Id. at 19, 723 S.E.2d at 268-69 (alterations in original) (quoting Howes, 132 S. Ct. at 1189-90

(citations and internal quotation marks omitted)).

       Instead, Miranda requires warnings only when a police officer interrogates a suspect who

is subject to “a formal arrest or restraint on freedom of movement of the degree associated with a

formal arrest.” Brooks v. Commonwealth, 282 Va. 90, 96, 712 S.E.2d 464, 467 (2011) (internal

quotation marks omitted). “Miranda ‘does not apply to a temporary investigatory detention’

short of ‘a de facto arrest.’” Tizon, 60 Va. App. at 19, 723 S.E.2d at 269 (quoting Testa v.

                                               -4-
Commonwealth, 55 Va. App. 275, 283 n.5, 685 S.E.2d 213, 217 n.5 (2009)). “‘Fidelity to the

doctrine announced in Miranda requires that it be enforced strictly, but only in those types of

situations in which the concerns that powered the decision are implicated.’” Howes, 132 S. Ct.

at 1192 (quoting Berkemer v. McCarty, 468 U.S. 420, 437 (1984)). “‘Voluntary confessions,’

after all, ‘are not merely a proper element in law enforcement, [but] they are an unmitigated

good, essential to society’s compelling interest in finding, convicting, and punishing those who

violate the law.’” Tizon, 60 Va. App. at 19, 723 S.E.2d at 269 (quoting Howes, 132 S. Ct. at

1192).

         In this case, assuming arguendo that Gatling was seized at the moment the detective

stated Gatling was a suspect, the circumstances fall far short of placing him in any coercive

condition remotely like a custodial arrest. The detectives were in his sister’s home at Gatling’s

invitation. They said nothing at the time about him being under arrest. Nor did they — at any

relevant point during their encounter with Gatling — display their weapons, use any physical

restraints, attempt to restrict his movements, or threaten him with commands.

         One of detectives merely informed Gatling that he was suspected of selling heroin. Just

as an accusation of criminality does not necessarily convert a consensual encounter into an

investigatory detention, all the more it does not — by itself — convert an investigatory detention

into the functional equivalent of a custodial arrest.3 To be sure, if a custodial situation for



         3
          See Stansbury v. California, 511 U.S. 318, 325 (1994) (“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 . . . .”); United States v. Jones, 523 F.3d 1235, 1241 (10th Cir. 2008) (stating that
no single factor, including a clear statement by law enforcement that a person is a prime suspect,
is dispositive in a custody analysis); United States v. Lebrun, 363 F.3d 715, 718 (8th Cir. 2004)
(en banc) (holding that the appellant was not in custody when he offered his confession, even
though investigators told him “he was the prime suspect . . . and that they had significant
evidence” against him); United States v. Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000) (holding
that the appellant’s “status as a suspect, and the coercive environment that exists in virtually
every interview by a police officer of a crime suspect, did not automatically create a custodial

                                                 -5-
Miranda purposes does not occur when officers question a suspect “‘in the station house’” with

the clear indication that he is the “‘one whom the police suspect’ as the perpetrator of the crime,”

Tizon, 60 Va. App. at 18, 723 S.E.2d at 268 (quoting Howes, 132 S. Ct. at 1188 (summarizing in

parenthetical the holding of Mathiason, 429 U.S. at 494)), it does not occur when they merely

question a suspect as invited guests in his sister’s home.4

        We similarly reject Gatling’s challenge to the admissibility of his post-Miranda

confession. Even if his challenge to his pre-Miranda confession were successful, that conclusion

would not automatically mean his post-Miranda confession should likewise be suppressed. A

post-Miranda confession is subject to suppression only if the “law enforcement officer employs a

deliberate, two-step strategy to obtain a postwarning confession.” Kuhne v. Commonwealth, 61

Va. App. 79, 92, 733 S.E.2d 667, 674 (2012) (applying Justice Kennedy’s concurring opinion in

Missouri v. Seibert, 542 U.S. 600, 620-22 (2004)). Gatling did not argue at trial, nor does he

contend on appeal, that the detectives deliberately employed the question-first-warn-later

strategy in a subtle effort to coerce him into making a post-Miranda confession. For this reason

alone, the trial court correctly held that Gatling’s post-Miranda confession could not be deemed

constitutionally inadmissible at his trial.




situation” (internal quotation marks omitted)); United States v. Howard, 115 F.3d 1151, 1155
(4th Cir. 1997) (emphasizing that “even a clear statement by an officer that the person being
questioned is a suspect does not alone determine custody, but is only one among many
factors . . .” (internal quotation marks omitted)); United States v. Pratt, 645 F.2d 89, 90 (1st Cir.
1981) (noting that “increased official suspicion,” even when a suspect is aware of the suspicion,
“is not sufficient by itself to apply coercive pressures equivalent to custodial questioning”).
        4
          See generally Mathiason, 429 U.S. at 495-96 (holding that an interrogation conducted at
a police station was not custodial even though the suspect was told, falsely, that his fingerprints
had been found at the scene of a burglary). Cf. United States v. Salvo, 133 F.3d 934, 950 (4th
Cir. 1998) (citing numerous federal court of appeals decisions supporting the proposition that
“when police question a suspect in a residence, these circumstances often do not rise to the kind
of custodial situation that necessitates Miranda warnings”).


                                                -6-
                                                III.

       Because the trial court did not err by denying Gatling’s motion to suppress his

confessions of guilt, we affirm his conviction based upon his conditional plea of guilty.


                                                                                            Affirmed.




                                               -7-
