Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Lacy and Koontz, S.JJ.

COMMONWEALTH OF VIRGINIA

v.   Record No. 110775             OPINION BY JUSTICE WILLIAM C. MIMS
                                         January 13, 2012
JERROD TYREE QUARLES

                  FROM THE COURT OF APPEALS OF VIRGINIA

     In this appeal, we review the en banc judgment of the Court of

Appeals, which reversed the denial by the Circuit Court of the City

of Richmond of a motion to suppress and held that the defendant’s

confession was obtained in violation of his Miranda rights under the

Fifth Amendment of the United States Constitution.

                         FACTS AND PROCEEDINGS BELOW

     On October 21, 2008, Jerrod T. Quarles and then 11-year-old

K.T. decided to “rob a white lady” near the area of Virginia

Commonwealth University in Richmond.     The first person they

encountered was Kimberly Johnson, who was walking home and talking

on her cellular telephone.     Quarles asked K.T. for his shirt, which

Quarles used to wrap a brick.     Quarles struck Johnson in the head

with the brick.   Johnson fell to her knees.    K.T., wielding a knife

that Quarles had provided him, demanded Johnson’s phone, which

Johnson gave to him.     Johnson then chased Quarles and K.T. for six

or seven blocks and later called police.

     Hours later, Detective Michael Alston visited K.T.’s home and

spoke with his mother and later with K.T.     K.T. and his mother led
police to Johnson’s cellular telephone and to the knife that K.T.

used during the robbery.   K.T. provided an address where Quarles was

located.   Quarles was placed under custodial arrest and brought to

the precinct.

     At the precinct, Detective Alston took K.T. into his

lieutenant’s office for interrogation.   Quarles remained in a

larger, open office with Officer Darin Papeo.   Detective Alston

spoke with K.T. for 45 minutes to an hour and obtained a full

confession.   He then obtained a full confession from Quarles.

Quarles was placed under arrest and subsequently indicted for

robbery and conspiracy to commit robbery in violation of Code

§§ 18.2-22 and 18.2-58.

     Prior to trial, Quarles moved to suppress the evidence on the

grounds that Detective Alston obtained the confession in violation

of his Miranda rights under the Fifth Amendment of the United States

Constitution.   At the suppression hearing, Detective Alston

testified that following his interview of K.T., he walked into the

hallway and saw Officer Papeo and Quarles in the large open office.

Officer Papeo approached Detective Alston with a waiver of rights

form and stated that Quarles wished to talk to an attorney. 1    Quarles

was sitting approximately 10 or 15 feet away.   At this time, the

evidence against Quarles consisted of Johnson’s cellular telephone,


     1
       The parties do not dispute that Quarles had invoked his
Miranda rights when speaking with Officer Papeo.

                                   2
the knife used in the robbery, and a full, detailed confession from

K.T.    Detective Alston also was aware of two independent witnesses

with whom he had not yet spoken, as well as Johnson, the victim, who

presumably could identify Quarles as her attacker.

       Detective Alston testified that in response to Officer Papeo’s

statement, he said to Officer Papeo: “[T]hat’s fine if he doesn’t

want to talk to me.   I wasn’t the person that robbed a white lady

and hit her in the head with a brick.”     He explained that at the

time of that statement, he believed nothing remained to be done in

the investigation of Quarles, and that “the case was made.”

Quarles, upon hearing Detective Alston’s statement, expressed a

desire to speak with him.   Detective Alston responded, “no, that’s

fine, you don’t have to talk to me.     I’m good.”   Quarles persisted,

and later made a full confession.

       On cross-examination, Detective Alston was asked if he also

said “If that’s the story you want to tell the judge, that’s fine.”

He responded that he may have.   He indicated that his recollection

was limited since he had not recorded the conversation.     He

explained that he used the term “white lady” because K.T. had used

that term and it was “in his head” from K.T.’s confession.       He

testified that while his statement was not part of the booking

process, it was not out of the ordinary under the circumstances.

       At the conclusion of the hearing, the circuit court made the

following findings of fact:


                                    3
     I find that Detective Alston’s statement to [Officer]
     Papeo, having learned that the defendant, Mr.
     Quarles, declined to be interviewed and asked for his
     attorney, the statement [“]that’s fine. I’m not the
     person who robbed the white lady and hit her in the
     head with a brick[”] and the statement that may have
     followed that [“]if that’s the story he wants to tell
     the judge, then, that’s fine,[”] those statements
     were said by Detective Alston to [Officer] Papeo in
     response to what [Officer] Papeo had said to
     Detective Alston.

(Emphasis added.)    The circuit court then found that the statements

were not a re-initiation of interrogation or the functional

equivalent of interrogation, and that Quarles’ confession was

initiated by Quarles.    It denied Quarles’ motion to suppress the

confession.

     Following a bench trial, the circuit court found Quarles guilty

of robbery and conspiracy to commit robbery. Quarles appealed to the

Court of Appeals.    A divided panel of that court affirmed his

convictions.     See Quarles v. Commonwealth, Record No. 1988-09-2,

(Aug. 10, 2010).    The Court of Appeals granted his petition for en

banc review and reversed the judgment of the panel, holding that the

circuit court erred in denying Quarles’ motion to suppress.       Quarles

v. Commonwealth, 58 Va. App. 13, 26, 707 S.E.2d 7, 13 (2011).      The

Court of Appeals also rejected the trial court’s finding that

Detective Alston used the pronoun “he” rather than “you” when

suggesting that Quarles could maintain his innocence “to the judge.”

Id. at 18 n.1.    We granted the Commonwealth’s petition for appeal,

and now reverse.


                                     4
                              DISCUSSION

     The Commonwealth assigns error to the Court of Appeals holding

that the police impermissibly reinitiated communication with Quarles

after he invoked his right to counsel in violation of his rights

under the Fifth Amendment, and that Quarles’ subsequent waiver of

his Miranda rights therefore was not voluntary. 2

     The question of whether Detective Alston’s statement violated

Quarles’ Fifth Amendment rights is a mixed question of law and fact.

See Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466

(2011).   We review the circuit court’s factual findings in denying a

motion to suppress for clear error, but review its application of

the law de novo.   Id. at 94-95, 712 S.E.2d at 466; see also

Commonwealth v. Redmond, 264 Va. 321, 327, 568 S.E.2d 695, 698

(2002) (“ ‘the determination of what [the defendant] actually said

is a question of fact that we review only for clear error. . . .

Whether those words are sufficient to invoke the right to counsel is

a legal determination that we review de novo.’ ”) (quoting United

States v. Uribe-Galindo, 990 F.2d 522, 523 (10th Cir. 1993)).




     2
       The Commonwealth does not assign error to the Court of
Appeals’ holding that Detective Alston used the pronoun “you” rather
than “he” and therefore has abandoned any argument on that issue
before this Court. See Dowdy v. Commonwealth, 278 Va. 577, 597
n.16, 686 S.E.2d 710, 721 n.16 (2009) (due to failure to assign
error to a Court of Appeals’ holding, argument not before this
Court). See Rule 5:17(c)(1)(i) (“ Only assignments of error assigned
in the petition for appeal will be noticed by this Court.”).

                                   5
     The legal principles that govern the outcome of this case are

familiar and largely not disputed by the parties.    The Fifth

Amendment of the United States Constitution guarantees that “[n]o

person . . . shall be compelled in any criminal case to be a witness

against himself.”    When police interrogate a suspect in their

custody, they first must give a Miranda warning informing the

suspect of the right to an attorney and the right to have that

attorney present during the interrogation.    Miranda v. Arizona, 384

U.S. 436, 469-73 (1966).    If the suspect invokes the right to

counsel, the interrogation must cease until an attorney has been

made available to the suspect or the suspect reinitiates the

interrogation. 3   Redmond, 264 Va. at 328, 568 S.E.2d at 698 (applying

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)); see also Correll

v. Commonwealth, 232 Va. 454, 462, 352 S.E.2d 352, 356 (1987) (once

a suspect invokes the right to counsel, “further discussions between

the police and the accused must [be] initiated by the accused.”).

     The narrow question this case presents is whether Quarles

reinitiated the interrogation or whether Detective Alston engaged

Quarles in interrogation or its functional equivalent.     See Rhode



     3
       If the police initiate a subsequent interrogation, “the
suspect’s statements are presumed involuntary and therefore
inadmissible as substantive evidence at trial,” even where the
suspect executes a waiver. McNeil v. Wisconsin, 501 U.S. 171, 177
(1991). This rule is “ ‘designed to prevent police from badgering a
defendant into waiving his previously asserted Miranda rights.’ ”
Id. (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)).

                                    6
Island v. Innis, 446 U.S. 291, 300-01 (1980).         The United States

Supreme Court’s holding in Innis controls the outcome of this case.

       In Innis, the police, in the course of investigating a murder

and a robbery committed by a man using a sawed-off shotgun, arrested

Innis, who was unarmed.        Id. at 293-94.    After being advised of his

Miranda rights, and having asked to speak to a lawyer, Innis was

placed in a “caged wagon” with three officers for transport to the

police station.        Id. at 294.

       While en route to the station, one of the officers said to

another officer that because there was a school for handicapped

children nearby, “ ‘there's a lot of handicapped children running

around in this area, and God forbid one of them might find a weapon

with shells and they might hurt themselves.’ ”         Id. at 294-95.     The

other officer responded that “ ‘it would be too bad if the little

. . . girl [] would pick up the gun, maybe kill herself.’ ”          Id. at

295.    Innis then interrupted to show the officers the location of

the shotgun.     Id.

       The Innis court observed that under Miranda, police need not

engage in express questioning for the exchange to constitute

interrogation.     Id. at 299.       However, the Court noted that not all

statements obtained by police after a person is taken into custody

are the product of interrogation.         Rather, “ ‘[i]nterrogation,’ as

conceptualized in the Miranda opinion, must reflect a measure of




                                          7
compulsion above and beyond that inherent in custody itself.”   Id.

at 300.

     The Court set forth the following test to determine whether

police conduct constitutes questioning for Miranda purposes:

     We conclude that the Miranda safeguards come into
     play whenever a person in custody is subjected to
     either express questioning or its functional
     equivalent. That is to say, the term “interrogation”
     under Miranda refers not only to express questioning,
     but also to 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. . . . A practice that the police
     should know is reasonably likely to evoke an
     incriminating response from a suspect thus amounts to
     interrogation. But, since the police surely cannot
     be held accountable for the unforeseeable results of
     their words or actions, the definition of
     interrogation can extend only to words or actions on
     the part of police officers that they should have
     known were reasonably likely to elicit an
     incriminating response.

Id. at 300-02 (emphasis added) (footnotes omitted).   Applying this

test, the Court held that Innis was not interrogated within the

meaning of Miranda.   Id. at 302.

     The Court explained:

     That the officers’ comments struck a responsive chord
     is readily apparent. Thus, it may be said . . . that
     the respondent was subjected to ‘subtle compulsion.’
     But that is not the end of the inquiry. It must also
     be established that a suspect’s incriminating
     response was the product of words or actions on the
     part of the police that they should have known were
     reasonably likely to elicit an incriminating
     response.




                                    8
Id. at 303 (emphasis added); see also Arizona v. Mauro, 481 U.S.

520, 529 (1987) (recognizing “subtle compulsion” standard of Innis).

     Under Innis, our inquiry, which “focuses primarily upon the

perceptions of the suspect,” Innis, 446 U.S. at 301, is whether

Detective Alston should have known that his statement was

“reasonably likely to elicit an incriminating response” from

Quarles.   Id.   In concluding that he should have known, the Court of

Appeals identified two aspects of Detective Alston’s statement that

distinguished it from Innis.     First, part of the statement was

directed at Quarles with the pronoun “you,” whereas Innis involved a

conversation ostensibly between two officers in the presence of

Innis.   Second, Detective Alston’s use of the term “white lady”

amounted to a specific warning to Quarles that K.T. had implicated

him in the robbery.

     We are not persuaded that these minor distinctions actually

make a substantive difference.    The possible use of the second-

person “you” rather than third-person “he” alone does not make the

statement the functional equivalent of an interrogation under Innis.

While a second-person, direct address is different from the

“dialogue between . . . two officers” considered in Innis, 446 U.S.

at 302, it is the content of the entire statement in light of the

circumstances that controls whether it was functionally the

equivalent of interrogation.   The statement here contained no

implicit request for information or even for response.    Rather, it


                                     9
conveyed exactly the opposite: that the detective did not desire to

hear Quarles’ account and that Quarles could “tell [it to] the

judge.”   Such a statement, according to Detective Alston, while not

part of the booking process, was not out of the ordinary based on

the circumstances.   According to Innis, to constitute interrogation,

the circumstances “must reflect a measure of compulsion above and

beyond that inherent in custody itself.”    446 U.S. at 300.   Simply

put, we do not find compulsion in the use of the second-person

personal pronoun in this context.    Even assuming, arguendo, some

measure of compulsion, at best it was of the subtle variety approved

by the United States Supreme Court and therefore acceptable under

Innis.

      Likewise we are not persuaded that the use of the term “white

lady” created the functional equivalent of interrogation.      The

Unites States Court of Appeals for the Fourth Circuit has previously

approved the exposure of criminal suspects to information that could

be interpreted as evidence of guilt.     In United States v. Payne, 954

F.2d 199, 201 (4th Cir. 1992) (vacated on other grounds), the

defendant was riding in a car with three FBI agents en route to the

United States Marshal’s office.   Agent Martin, who was riding in the

back seat beside Payne, received a call on the cellular car phone.

Id.   In that call, she learned “that a handgun had been found at

Payne's residence during the execution of the search warrant.”

Sometime thereafter, Agent Martin said to Payne, “ ‘They found a gun


                                    10
at your house.’ ” Payne responded, “ ‘I just had it for my

protection.’ ”     Id.

     In holding that the agent’s statement was permissible under

Innis, the court observed in Payne that “mere declaratory

descriptions of incriminating evidence do not invariably constitute

interrogation for Miranda purposes.”   Id. at 202.   Rather, “[t]he

inquiry mandated by Innis into the perceptions of the suspect is

necessarily contextual, and whether descriptions of incriminating

evidence constitute the functional equivalent of interrogation will

depend on circumstances that are too numerous to catalogue.”    Id. at

203 (emphasis added) (citing Nelson v. Fulcomer, 911 F.2d 928, 934

(3d Cir. 1990)).

     Other circuits adhere to the rule that exposure to inculpating

evidence is not, by itself, interrogation.    See e.g., United States

v. Suggs, 755 F.2d 1538, 1541-42 (11th Cir. 1985) (no interrogation

where defendant was shown a copy of his indictment and made a

spontaneous exclamation concerning guilt); see also United States v.

Peoples, 748 F.2d 934, 936 (4th Cir. 1984) (no interrogation where

victim of shooting entered interrogation room and defendant

immediately apologized for shooting him). 4   Quarles may have inferred


     4
       Other states interpret Innis as allowing such an exposure to
evidence of guilt. See, e.g., Smith v. State, 995 A.2d 685, 688-90
(Md. 2010) (no interrogation where officer showed defendant cocaine
found in his bedroom); State v. Gibson, 422 N.W.2d 570, 572, 577
(Neb. 1988) (no interrogation where officer said, “Oh, look what I
found” after discovering loaded revolver in the defendant’s

                                  11
that K.T. had confessed based on the use of the term “white lady.”

However, based on the “necessarily contextual” inquiry, Payne, 954

F.2d    at 203, we do not find that such minor exposure to evidence

constitutes an event which is reasonably likely to elicit an

incriminating response under the circumstances present in this case.

       In summation, considering the content and context of the

statement, we cannot say that Detective Alston should have known

that Quarles was likely to respond.     Unlike the conversation in

Innis, the statement here did not subtly invite Quarles to reveal a

missing piece of evidence.   To the contrary, Detective Alston

expressed that he did not need or desire Quarles’ cooperation, which

was reasonable based on the extensive evidence he had gathered.

Unlike the circumstances reviewed in Innis, Quarles was not riding

in a “caged wagon” with three other officers at the time of the

statement.    Rather, the statement came in response to Officer Papeo

as the detective was passing from a hallway into a large office and

while Quarles remained 10 to 15 feet away.    And, as in Innis, there

is nothing in the record before us to show that Quarles was

“particularly susceptible” to such an exposure.    We therefore find

that the circuit court did not err in denying Quarles’ motion to

suppress.




presence, and defendant responded by acknowledging his ownership of
the weapon).

                                   12
                             CONCLUSION

     For the reasons stated, we will reverse the judgment of the

Court of Appeals and reinstate Quarles’ convictions.



                                          Reversed and final judgment.




                                 13
